| Scala v Scala |
| 2009 NY Slip Op 00895 [59 AD3d 1042] |
| February 6, 2009 |
| Appellate Division, Fourth Department |
| Felice Scala, Appellant, v Venera Scala,Respondent. |
—[*1] Kaman, Berlove, Marafioti, Jacobstein & Goldman, LLP, Rochester (Jennifer L. Fazio ofcounsel), for defendant-respondent.
Appeal from a judgment of the Supreme Court, Monroe County (John M. Owens, J.), enteredAugust 14, 2007 in a divorce action. The judgment, among other things, awarded nondurationalmaintenance to defendant.
It is hereby ordered that the judgment so appealed from is unanimously modified on the lawby providing that maintenance shall terminate 12 years from the date of the judgment and asmodified the judgment is affirmed without costs.
Memorandum: Plaintiff appeals from a judgment of divorce that confirmed the report of theMatrimonial Referee (Referee) appointed to hear and report and, inter alia, ordered plaintiffhusband to pay maintenance to defendant wife. Plaintiff contends that the Referee erred inprecluding him from testifying concerning the nature of his alleged physical injuries based on hiswillful failure to furnish requested medical authorizations. We reject that contention. Rather, weconclude under the facts and circumstances of this case that the Referee neither abused norimprovidently exercised his discretion in precluding that testimony (see generally Optic Plus Enters., Ltd. vBausch & Lomb Inc., 37 AD3d 1185, 1186-1187 [2007]).
Plaintiff further contends that Supreme Court erred in confirming the Referee's report both tothe extent that the Referee found that the closure by plaintiff of his masonry business constituteda wasteful dissipation of assets and to the extent that the Referee valued the business. Withrespect to wasteful dissipation, this Court has previously stated that the failure to recoup valuefrom an unprofitable business operated during the marriage constitutes wasteful dissipation ofthat asset (see Baker v Baker [appeal No. 2], 199 AD2d 967, 968 [1993]). Thus, itnecessarily is a wasteful dissipation of assets to fail to recoup the value of a profitable business,such as plaintiff's masonry business. We also reject the contention with respect to the valuationof the masonry business. " 'The determination of a fact-finder as to the value of a business, if it iswithin the range of the testimony presented, will not be disturbed on appeal where valuation ofthe business rested primarily on the credibility of expert [*2]witnesses and their valuation techniques' " (Johnson vJohnson, 277 AD2d 923, 926 [2000], lv dismissed 96 NY2d 792 [2001]). Here, theReferee, whose report was adopted by the court, credited the conclusion of defendant's expertwith respect to the value of the business, and plaintiff "presented no expert testimony that wouldsupport a different valuation" (Schiffmacher v Schiffmacher, 21 AD3d 1386, 1387 [2005]).
We agree with plaintiff, however, that the court erred in awarding nondurationalmaintenance to defendant. " 'As a general rule, the amount and duration of maintenance arematters committed to the sound discretion of the trial court' " (Frost v Frost, 49 AD3d 1150,1150-1151 [2008]). Nevertheless, this Court's authority in determining issues of maintenance isas broad as that of the trial court, and we conclude that the award of nondurational maintenancein this case is excessive (see Reed vReed, 55 AD3d 1249 [2008]). Based on the statutory factors, including the parties'respective ages and financial circumstances, we conclude that defendant is entitled tomaintenance for 12 years from the date of the judgment (see Domestic Relations Law§ 236 [B] [6] [a]; see generally Reed, 55 AD3d 1249 [2008]; Fruchter vFruchter, 288 AD2d 942, 944-945 [2001]). We therefore modify the judgment accordingly.Present—Scudder, P.J., Centra, Fahey, Pine and Gorski, JJ.