| Bricker v Bricker |
| 2010 NY Slip Op 00088 [69 AD3d 546] |
| January 5, 2010 |
| Appellate Division, Second Department |
| Kim Bricker, Respondent, v James Bricker,Appellant. |
—[*1] Christine K. Wienberg, New City, N.Y., 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, Rockland County (Garvey, J.), datedOctober 8, 2008, which, upon a decision of the same court dated May 9, 2008, made after anonjury trial, inter alia, awarded the plaintiff 100% of JCB Holdings and a 60% interest in theownership of Bricker's, Inc., and directed that the shares of stock of Bricker's, Inc., be amendedto reflect that the plaintiff is a 60% owner and the defendant a 40% owner of the stock inBricker's, Inc.
Ordered that the judgment is modified, on the law, (1) by deleting the provision thereofawarding the plaintiff 100% of JCB Holdings, and substituting therefor a provision awardingeach party a 50% share of JCB Holdings, (2) by deleting the provisions thereof directing that theplaintiff and the defendant shall continue to jointly own Bricker's, Inc., and directing that theshares of stock of Bricker's, Inc., be amended to reflect that the plaintiff is a 60% owner and thedefendant a 40% owner of the stock in Bricker's, Inc., and substituting therefor provisionsdirecting that the defendant shall be the sole owner of Bricker's, Inc., and shall pay the plaintiff adistributive award for her 60% interest therein, in the total sum of $321,000 payable over aperiod of 14 years, in annual installments of $24,000 per year for 13 years, and a finalinstallment in the sum of $9,000 in the 14th year, which sum shall, alternatively, be paid in fullupon an earlier sale by the defendant of the real property owned by Bricker's, Inc.; as somodified, the judgment is affirmed insofar as appealed from, without costs or disbursements.
We reject the defendant's contention that the Supreme Court improperly accepted theplaintiff's expert's opinion over the opinion of his own expert concerning the valuation of theauto repair shop operated by him. There is no uniform rule for fixing the value of a goingbusiness and the valuation of a business for equitable distribution purposes is an exerciseproperly with the fact-finding power of the trial court, guided by expert testimony (see Burnsv Burns, 84 NY2d 369 [1994]; Dempster v Dempster, 236 AD2d 582 [1997]). Thefactfinder's determination of the value of a business, if it is within the range of the experttestimony presented, is entitled to deference on appeal where the valuation rests primarily on thecredibility of the expert witnesses and their valuation techniques (see Wasserman v Wasserman, 66AD3d 880, 882 [2009]; Ivani v Ivani, 303 AD2d 639, 640 [2003]).[*2]
Similarly, the court did not err in valuing the maritalresidence based upon the appraisal thereof that was admitted into evidence, rather than upon thetestimony of the defendant's neighbor that he was willing to purchase it for considerably morethan the appraised value, which the trial court expressly found lacked credibility (see Levine v Levine, 37 AD3d550 [2007]).
We agree with the defendant, however, that it was error for the court to award 100% of JCBHoldings to the plaintiff, and we modify the judgment by awarding each party a 50% share ofthat marital asset.
We decline to disturb the trial court's award to the plaintiff of a 60% interest in Bricker's,Inc. However, we agree with the defendant that it is inappropriate for the plaintiff to continue asa joint owner with the defendant of this closely-held corporation, and that, instead, a distributiveaward should be made to the plaintiff for her share (see Domestic Relations Law §236 [B] [5] [d] [9]; [e]). Based on the evidence that Bricker's, Inc., is the owner and lessor of thereal property where the auto repair shop which the defendant operates is located, that theappraised value of that real property of $535,000, and the trial court's determination that theplaintiff is entitled to a 60% share of this marital asset, we modify the judgment so as to awardthe plaintiff a distributive award of $321,000 for her share of Bricker's, Inc. In view of thedefendant's lack of liquid assets, we direct that he pay the plaintiff her distributive award for thisasset over a period of 14 years, in annual installments of $24,000 per year for 13 years, and afinal installment in the sum of $9,000 in the 14th year, with the proviso that, if he should sell thereal property owned by Bricker's, Inc., within that time period, he shall pay any remainingbalance due on the award to the plaintiff upon that sale.
The defendant's remaining contentions are without merit. Rivera, J.P., Dickerson, Hall andLott, JJ., concur.
Motion by the respondent to strike paragraph III of point I, point II, and point XVII of theappellant's reply brief on an appeal from a judgment of the Supreme Court, Rockland County,dated October 8, 2008, on the ground that those points refer to matter dehors the record orcontain arguments improperly raised for the first time in the reply brief, and for an award ofcosts. By decision and order on motion of this Court dated September 14, 2009, the motion washeld in abeyance and referred to the panel of Justices hearing the appeal for determination uponthe argument or submission thereof.
Upon the papers filed in support of the motion, the papers filed in opposition thereto, andupon the argument of the appeal, it is
Ordered that the motion is granted, and paragraph III of point I, point II, and point XVII ofthe appellant's reply brief are deemed stricken, and have not been considered in thedetermination of the appeal. Rivera, J.P., Dickerson, Hall and Lott, JJ., concur.