| Steinberg v Steinberg |
| 2009 NY Slip Op 01466 [59 AD3d 702] |
| February 24, 2009 |
| Appellate Division, Second Department |
| Marsha Steinberg, Respondent-Appellant, v MelvinSteinberg, Appellant-Respondent. |
—[*1] Kenneth Koopersmith, LLC, Garden City, N.Y. (Glenn S. Koopersmith of counsel), forrespondent-appellant.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from stated portions of a judgment of the Supreme Court, Nassau County (Ross, J.), dated May15, 2007, which, after a nonjury trial, inter alia, awarded the plaintiff one half of the maritalassets, imputed income to him in the amount of $300,000, awarded the plaintiff nondurationalmaintenance, and awarded the plaintiff the sum of $200,000 in attorney's fees, and the plaintiffcross-appeals, as limited by her brief, from stated portions of the same judgment which, interalia, awarded the defendant a separate property interest in his JP Morgan Chase investmentaccount in the amount of $276,724, his interest in Phoenix Capital & Management Company inthe amount of $333,333, and a note payable to him by Phoenix Capital & Management Companyin the amount of $173,167.
Ordered that the judgment is modified, on the law, the facts, and in the exercise of discretion,(1) by deleting the provisions thereof awarding the defendant a separate property interest in hisJP Morgan Chase investment account, his interest in Phoenix Capital & Management Company,and a note payable to him by Phoenix Capital & Management Company, and substitutingtherefor a provision directing that those assets are marital property subject to equitabledistribution, (2) by deleting the provision thereof valuing the defendant's JP Morgan Chaseinvestment account at $276,724, and substituting therefor a provision valuing that account at$351,724.35, (3) by deleting the provision thereof valuing the defendant's interest in PhoenixCapital & Management Company at $333,333, and substituting therefor a provision valuing thedefendant's interest in [*2]Phoenix Capital & ManagementCompany at $666,666, and (4) by adding a provision thereto valuing the parties' AB Watleyaccount at $6,152.97; as so modified, the judgment is affirmed insofar as appealed andcross-appealed from, with costs payable to the plaintiff.
The Supreme Court providently exercised its discretion in dividing the marital assets equallybetween the parties. When both spouses equally contribute to a marriage of long duration, ashere, the division of marital property should be as equal as possible (see Adjmi v Adjmi, 8 AD3d 411,412-413 [2004]).
The Supreme Court improvidently exercised its discretion in awarding the defendant aseparate property interest with respect to his JP Morgan Chase investment account. "Propertyacquired during the marriage is presumed to be marital property and the party seeking toovercome such presumption has the burden of proving that the property in dispute is separateproperty" (Judson v Judson, 255 AD2d 656, 657 [1998]; see D'Angelo v D'Angelo, 14 AD3d476, 477 [2005]; Farag v Farag,4 AD3d 502, 503 [2004]). Here, the assets in question were acquired during themarriage, and the defendant's testimony that the source of the assets could be traced to premaritalproperty, unsupported by documentary evidence, was insufficient to overcome the maritalpresumption (see D'Angelo v D'Angelo, 14 AD3d at 477; Farag v Farag, 4 AD3dat 503). Also, the defendant's JP Morgan Chase investment account, as well as the parties' ABWatley account, both active assets, should have been valued at $351,724.35 and $6,152.97respectively, which was their value as of the date of commencement of this action (seeKirshenbaum v Kirshenbaum, 203 AD2d 534, 535 [1994]).
The Supreme Court also should have awarded the plaintiff a marital share of Phoenix Capital& Management Company (hereinafter Phoenix) and a note payable to the defendant by Phoenix.Although Phoenix was created two years prior to the parties' marriage, the defendant could notrecollect what Phoenix did during the time that preceded the marriage. Instead, the defendanttestified that Phoenix acquired an office building two years after the marriage, which was itsonly asset, and that he and other partners contributed money to Phoenix to manage the propertyafter its purchase. The defendant did not trace the source of his portion of the building'sacquisition costs to separate pre-marital funds and likewise did not establish that his actualfinancial contributions to the building's acquisition and management costs were not derived frommarital funds (D'Angelo v D'Angelo, 14 AD3d at 477; Capasso v Capasso, 119AD2d 268, 272 [1986]). Marital property is to be viewed broadly, while separate property is tobe viewed narrowly (see Price v Price, 69 NY2d 8, 15 [1986]; Saasto v Saasto,211 AD2d 708, 709 [1995]). Where, as here, a party fails to trace sources of money claimedto be separate property, a court may treat it as marital property (see Saasto v Saasto, 211AD2d at 709; Sarafian v Sarafian, 140 AD2d 801, 804 [1988]; cf. Lischynsky vLischynsky, 120 AD2d 824 [1986]). By extension, the note payable to the defendant as aresult of his financial contributions to Phoenix during the marriage should have been consideredmarital property as well (see Markopoulos v Markopoulos, 274 AD2d 457, 458-459[2000]).
The Supreme Court valued the defendant's one-third interest in Phoenix at $333,000, basedon the defendant's testimony that the property was worth $3 million and was subject to a $2million mortgage. However, in a prior sworn bank loan application dated May 12, 2005, thedefendant estimated the value of the office building to be $4 million. Given the credibilityproblems that pervade the defendant's testimony generally, the court's discretion in valuing theproperty should have been exercised in favor of the defendant's most recently documentedadmission that the property was valued at $4 million. Accordingly, we set the value of thedefendant's interest in [*3]Phoenix at $666,666 rather than$333,333, subject to the plaintiff's 50% equitable distributive share.
The defendant's contention that the Supreme Court improperly imputed income to him indetermining his maintenance obligation is without merit. A court need not rely upon a party'sown account of his finances, but may impute income based upon the party's past income ordemonstrated future potential earnings (see Brown v Brown, 239 AD2d 535 [1997]).Here, the Supreme Court properly imputed an annual income of $300,000 to the defendant givenhis employment history and his current ownership of a successful, growing business (see Fruchter v Fruchter 29 AD3d942, 943 [2006]; Sodaro v Sodaro, 286 AD2d 434, 435 [2001]; Brown v Brown,239 AD2d 535 [1997]).
In light of the plaintiff's age, health, and history of low earnings over the course of a 23-yearmarriage, the Supreme Court properly found it to be unlikely that she would becomeself-supporting and, consequently, providently exercised its discretion in awarding hernondurational maintenance (see Summer v Summer, 85 NY2d 1014, 1016 [1995]; Marino v Marino, 52 AD3d 585[2008]; Polizzano v Polizzano, 2AD3d 615 [2003]; Mazzone v Mazzone, 290 AD2d 495 [2002]).
The Supreme Court providently exercised its discretion in determining that the plaintiff wasentitled to attorney's fees in the amount awarded (see Prichep v Prichep, 52 AD3d 61, 64 [2008]; DeCabrera vCabrera-Rosete, 70 NY2d 879, 881-882 [1987]).
The parties' remaining contentions are without merit. Skelos, J.P., Dillon, McCarthy andEng, JJ., concur.