| Peritore v Peritore |
| 2009 NY Slip Op 07388 [66 AD3d 750] |
| October 13, 2009 |
| Appellate Division, Second Department |
| Lorraine Peritore, Respondent, v Frank Peritore,Appellant. |
—[*1] Cohen & Prizer, Hicksville, N.Y. (Linda A. Prizer of counsel), for respondent.
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.), enteredFebruary 13, 2008, which, upon a decision of the same court (Friedenberg, J.H.O.) datedSeptember 28, 2007, made after a nonjury trial, inter alia, awarded the plaintiff a 40% interest inthe value of his dental practice, deducted $7,585 from the value of the plaintiff's pension for taxconsequences, failed to award him a credit, for purposes of equitable distribution, for the sum hepaid for repair and maintenance of the parties' boat during the pendency of the action, and failedto treat the wife's increase in income over the course of the marriage as an enhanced earningcapacity subject to equitable distribution.
Ordered that the judgment is modified, on the law, the facts, and as an exercise of discretion,(1) by deleting from the fifth decretal paragraph thereof the words "forty percent (40%) interestin the value of the defendant's dental practice, determined to be the sum of $93,200.00" andsubstituting therefor the words "fifteen percent (15%) interest in the value of the defendant'sdental practice, determined to be the sum of $34,950.00," (2) by deleting from the sixth decretalparagraph thereof the words "minus $7,585.00 payable in Federal and State taxes resulting in anet entitlement to the defendant of $22,757.00," (3) by deleting from the sixth decretal paragraphthereof the term "$93,000.00" and substituting therefor the term "$34,950.00," and (4) bydeleting from the twelfth decretal paragraph thereof the words "the Defendant owes to thePlaintiff the net sum of $30,449.00 which shall be deducted from the Defendant's one half shareof the net proceeds of the sale of the marital residence and paid to the Plaintiff at the time of theclosing. If the Defendant elects to purchase the Plaintiff's one half share of the marital residence,he shall pay the sum of $30,449.00 to the Plaintiff as part of the cost of sale in addition to theagree price for her share of the premises" and substituting therefor the words "the Plaintiff owesto the Defendant the net sum of $35,800.00 which shall be deducted from the Plaintiff's one halfshare of the net proceeds of the sale of the marital residence and paid to the Defendant at thetime of the closing. If the Defendant elects to purchase the Plaintiff's one half share of the maritalresidence, the sum of $35,800.00 shall be deducted from the total sum paid by the Defendant tothe Plaintiff for that purpose;" as so modified, the judgment is affirmed insofar as appealed from,with costs to the defendant.
The parties were married on October 22, 1988; there are no children of the marriage. Theplaintiff commenced this action for a divorce and ancillary relief in November 2004. Thedefendant appeals from stated portions of the judgment of divorce.[*2]
The defendant's contention that the Supreme Court erredin its calculation of the value of his dental practice is without merit. The determination of thevalue of business interests is a function properly within the fact-finding power of the court(see Amodio v Amodio, 70 NY2d 5 [1987]; Sieger v Sieger, 51 AD3d 1004 [2008]; Daddino v Daddino, 37 AD3d518, 519 [2007]; Miness v Miness, 229 AD2d 520, 521 [1996]). Where thatdetermination as to the value of a business is within the range of the testimony presented, it willbe accorded deference on appeal if it rests primarily on the credibility of expert witnesses andtheir valuation techniques (see Sieger vSieger, 51 AD3d 1004 [2008]; Levine v Levine, 37 AD3d 550, 552 [2007]; Bernstein v Bernstein, 18 AD3d683, 684 [2005]). Here, the Supreme Court's valuation primarily rested upon themethodology favored by both the court-appointed neutral appraiser and the defendant's appraiser,with certain adjustments based upon testimony from these experts and the defendant. Contrary tothe defendant's contention, no basis exists to disturb the trial court's finding that thecourt-appointed business evaluator was, in most respects, more credible than the defendant'sexpert business appraiser (see Levine v Levine, 37 AD3d at 552).
However, the defendant is correct that the court improvidently exercised its discretion inawarding the plaintiff a distributive share of 40 percent of the defendant's dental practice. "'Although in a marriage of long duration, where both parties have made significant contributionsto the marriage, a division of marital assets should be made as equal as possible . . .there is no requirement that the distribution of each item of marital property be made on an equalbasis' " (Griggs v Griggs, 44 AD3d710, 713 [2007], quoting Chalif v Chalif, 298 AD2d 348, 349 [2002]). Under theparticular circumstances of this case, where the plaintiff successfully embarked on her ownfull-time career and made only indirect contributions to the defendant's dental practice, the awardto the plaintiff of 40 percent of the value of the defendant's practice should be reduced to 15percent (see Wagner v Dunetz, 299 AD2d 347, 349 [2002]; Granade-Bastuck vBastuck, 249 AD2d 444 [1998]).
Contrary to the defendant's contention, the Supreme Court properly rejected his claim thatthe plaintiff removed jewelry and furniture from the marital home. The trial court, which had theopportunity to view the demeanor of the witnesses, was in the best position to gauge theircredibility (see Varga v Varga, 288 AD2d 210, 211 [2001]; Diaco v Diaco, 278AD2d 358, 359 [2000]; Ferrugiari v Ferrugiari, 226 AD2d 498 [1996]). The court wasnot required to accept the photographs proffered by the defendant as conclusive proof that theplaintiff removed the depicted items from the marital residence (see Schneider v Schneider, 40 AD3d956, 957 [2007]; Koeth v Koeth, 309 AD2d 786, 786-787 [2003]).
Additionally, given its credibility determinations, the court did not improvidently exercise itsdiscretion in failing to award the defendant a credit, for purposes of equitable distribution, for thesum he paid for repair and maintenance of the parties' boat during the pendency of the action.
"This court has recognized that the value of a pension should be discounted by the amount ofincome tax required to be paid by a party where the party seeking the discount presented someevidence from which the court could have determined the dollar amount of the taxconsequences" (De La Torre v De La Torre, 183 AD2d 744, 745 [1992]; seeDomestic Relations Law § 236 [B] [5] [d] [10]; Johnson v Johnson, 297 AD2d279, 281 [2002]; Chase v Chase, 208 AD2d 883, 884 [1994]; Gluck v Gluck,134 AD2d 237, 239 [1987]). Since the plaintiff did not present any evidence to establish thedollar amount of the tax consequences to the value of her pension, the court erred in consideringthis factor and in deducting $7,585 from the defendant's distributive award of the plaintiff'spension (see Chase v Chase, 208 AD2d 883, 884 [1994]; De La Torre v De La Torre,183 AD2d 744, 745 [1992]; Gluck v Gluck, 134 AD2d 237, 239 [1987]; Farsacev Farsace, 97 AD2d 951, 952 [1983]; cf. Johnson v Johnson, 297 AD2d 279, 281[2002]).
The Supreme Court did not err in rejecting the defendant's claim that the plaintiff's increasedearnings over the course of the marriage constituted a marital asset subject to equitabledistribution (see Fruchter v Fruchter,29 AD3d 942, 944 [2006]; Spence v Spence, 287 AD2d 447, 448 [2001]).
The defendant's remaining contention is without merit. Skelos, J.P., Belen, Hall and Lott, JJ.,concur.