| Ripka v Ripka |
| 2010 NY Slip Op 06935 [77 AD3d 1384] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| JoAnn Ripka, Appellant, v Robbie Ripka,Respondent. |
—[*1] Macht, Brenizer & Gingold, P.C., Syracuse (Jon W. Brenizer of counsel), fordefendant-respondent.
Appeal from a judgment of the Supreme Court, Oswego County (James W. McCarthy, A.J.),entered November 3, 2008 in a divorce action. The judgment, inter alia, equitably distributed themarital assets of the parties.
It is hereby ordered that the judgment so appealed from is unanimously modified on the law withoutcosts by providing in the fifth decretal paragraph that there shall be an upward adjustment of childsupport upon the termination of defendant's maintenance obligation and as modified the judgment isaffirmed and the matter is remitted to Supreme Court, Oswego County, to determine the amount of thatupward adjustment in accordance with the following memorandum: On appeal from a judgment ofdivorce, plaintiff contends that Supreme Court erred in determining that it would be "double counting"to award a portion of defendant's businesses to plaintiff where, as here, defendant's wages had not beencapitalized in the valuation of those businesses (see generally Grunfeld v Grunfeld, 94 NY2d696 [2000]). We agree. We conclude, however, that the court rectified that error by awardingmaintenance based solely upon defendant's income. "[P]roperty distribution and maintenance should notbe treated as two separate and discrete items, but rather should each be considered 'with a viewtoward the other in an effort to arrive at a fully integrated and complete financial resolution that is bestsuited to the parties' particular financial situation' " (Grunfeld, 255 AD2d 12, 19 [1999],mod on other grounds 94 NY2d 696 [2000]). Although plaintiff is correct that her overallaward would have been greater had she received both maintenance and a portion of defendant'sbusinesses, we conclude that, in that event, the amount of her award of maintenance would beinsufficient to enable her to maintain her standard of living. Based on the impropriety of treating adistributive award as "an additional source of maintenance, rather than as a division of marital property"(Buzzeo v Buzzeo, 141 AD2d 490, 491 [1988]; see Lipovsky v Lipovsky, 271 AD2d658, 659 [2000], lv dismissed 95 NY2d 886 [2000], lv denied 96 NY2d 712 [2001];Mullin v Mullin, 187 AD2d 913, 914 [1992]), we conclude that the court properly awardedmaintenance to plaintiff based on defendant's income.
Contrary to plaintiff's contention, the court was not required to explain the reasons for its [*2]discretionary application of the $80,000 cap pursuant to DomesticRelations Law § 240 (1-b) (c) (former [2]) and (3), particularly in light of its finding thatdefendant's pro rata share of child support was appropriate and plaintiff's failure to contend that theamount of child support awarded was insufficient (see generally id.; Matter of Michele M. v Thomas F., 42AD3d 882 [2007]). We conclude, however, that the court erred in failing to order that childsupport be adjusted upon the termination of maintenance, pursuant to Domestic Relations Law §240 (1-b) (b) (5) (vii) (C) (see Schiffer vSchiffer, 21 AD3d 889, 890-891 [2005]; Smith v Smith, 1 AD3d 870, 872-873 [2003]; Atweh vHashem, 284 AD2d 216, 216-217 [2001]). We therefore modify the order and remit the matterto Supreme Court to determine, following a hearing if necessary, the proper amount of the upwardadjustment of child support.
Also contrary to plaintiff's contention, we conclude that the court properly determined the values ofdefendant's businesses and the marital assets. Indeed, "valuation is an exercise properly within thefact-finding power of the trial courts, guided by expert testimony" (Burns v Burns, 84 NY2d369, 375 [1994]). Here, the court accepted the valuation of the businesses provided by defendant'sexpert, with which plaintiff's expert agreed, and the court was not required to accept plaintiff'sunsupported allegations that the businesses were worth more than the amounts reported by defendant(see Scala v Scala, 59 AD3d 1042,1043 [2009]). Similarly, the court properly accepted defendant's valuation of the vehicles, whereplaintiff " 'presented no expert testimony that would support a different valuation' " (id.). Finally,the court was entitled to credit the valuation of defendant's expert over that of plaintiff's with respect tothe marital residence, using the "as repaired" valuation of the marital residence. Plaintiff admittedly usednearly $13,000 out of a $20,000 pendente lite award made specifically for house repairs and realproperty taxes for other personal expenses (see Fuchs v Fuchs, 276 AD2d 868, 869 [2000]).Present—Martoche, J.P., Carni, Green, Pine and Gorski, JJ.