| Rich-Wolfe v Wolfe |
| 2011 NY Slip Op 03327 [83 AD3d 1359] |
| April 28, 2011 |
| Appellate Division, Third Department |
| Diane J. Rich-Wolfe, Respondent, v Daniel G. Wolfe,Appellant. |
—[*1] Melody A. Mackenzie, P.L.L.C., Troy (Melody A. Mackenzie of counsel), forrespondent.
Malone Jr., J. Appeal from a judgment of the Supreme Court (Egan Jr., J.), entered January11, 2010 in Rensselaer County, ordering, among other things, equitable distribution of the parties'marital property, upon a decision of the court.
The parties were married in 1990 and have two sons (born in 1991 and 2000). Plaintiffcommenced this action for divorce in September 2007. The parties stipulated as to the groundsfor divorce and the custodial arrangement for their younger child (the older one being 18 years ofage by the time of trial), their respective incomes for child support purposes, and the valuationand distribution of many marital assets. A nonjury trial was conducted in July 2009 on theunresolved issues, following which Supreme Court divided the marital estate equally and ordereddefendant, who retained title to certain marital businesses, to pay a distributive award. The courtfurther directed defendant to pay child support and durational maintenance, and denied plaintiff'sapplication for counsel fees. Judgment was entered accordingly, and defendant now appeals.
Initially, we are unpersuaded that Supreme Court should have valued several constructionand demolition businesses, formed over the course of the parties' long marriage, as of the date oftrial rather than the date of the commencement of the action. While marital property is generallyvalued at the time an action is commenced, Supreme Court is vested with broad discretion to seta valuation date anytime between the date of commencement and the date [*2]of trial (seeMesholam v Mesholam, 11 NY3d 24, 28 [2008]; Fehring v Fehring, 58 AD3d1061, 1063 [2009]). Moreover, while not dispositive, the fact that the businesses constitute"active" assets weigh in favor of valuing them as of the date of commencement (see Grunfeldv Grunfeld, 94 NY2d 696, 707-708 [2000]; Fox v Fox, 309 AD2d 1056, 1058[2003]). In this case, the profitability of the parties' businesses had declined after the date ofcommencement due to deterioration of the broader economy, but defendant did not dispute thatthe construction industry is a cyclical one that is strongly affected by economic conditions. Healso sold one of the businesses and some assets of another for a substantial sum of money in2008, and provided nothing to indicate that the remaining businesses would not recover as theeconomy improved. As such, Supreme Court properly selected the date of commencement as thevaluation date (see Grunfeld v Grunfeld, 94 NY2d at 707-708; Daniel v Friedman, 22 AD3d 707,708 [2005]). Nor are we persuaded that Supreme Court abused its discretion by relying upon theopinion of an expert, who was jointly retained by the parties, in setting their value (seeCerretani v Cerretani, 289 AD2d 753, 755 [2001]; Timperio v Timperio, 232 AD2d857, 860 [1996]).
We turn next to defendant's contention that Supreme Court erred in awarding plaintiff half ofthe value of the businesses. Plaintiff helped in operating the businesses from their inception andeventually quit her job to labor full time for them. Indeed, defendant admitted that plaintiff ranthe office and performed the bookkeeping for the businesses, and stipulated that she had made"substantial direct and indirect contributions" to the marital estate. Given these sizablecontributions by plaintiff to the success of the businesses, Supreme Court did not abuse itssignificant discretion in awarding her half of their value (see Redgrave v Redgrave, 13 AD3d 1015, 1017-1018 [2004];Timperio v Timperio, 232 AD2d at 860).
Turning to the issue of child support, Supreme Court did not sufficiently articulate itsrationale in applying the statutory child support percentage to the parties' combined income over$80,000, but the record is sufficiently developed to permit us to do so (see Matter ofGluckman v Qua, 253 AD2d 267, 270-271 [1999], lv denied 93 NY2d 814 [1999]).The parties share physical custody of their younger son, with their older son spending the bulk ofhis time with plaintiff. Plaintiff earns substantially less than defendant, is seeking betteremployment and may need to further her education in the meantime. Moreover, applying thestatutory percentage to the parties' combined income over $80,000 will assist plaintiff inproviding a predivorce standard of living for the children. Considering these relevant factors(see Domestic Relations Law § 240 [1-b] [former (c)], [f]), Supreme Court did notabuse its discretion in applying the statutory percentage uniformly (see Holterman v Holterman, 3 NY3d1, 14-15 [2004]; Bellinger vBellinger, 46 AD3d 1200, 1202 [2007]).
Although we do not agree with defendant's further contention that the older son isemancipated, he correctly notes that Supreme Court improperly calculated his basic child supportobligation using the statutory percentage for two children beyond the older son's 21st birthday.As such, the judgment must be modified to reduce the basic child support obligation "upon thedate that [the older son] reaches the age of 21 or is otherwise emancipated," the actual sum ofchild support due to be adjusted further based upon the amount of durational maintenance paid(Matter of Yarinsky v Yarinsky, 36AD3d 1135, 1139 [2007]; seeAzizo v Azizo, 51 AD3d 438, 440 [2008]; Lee v Lee, 18 AD3d 508, 511 [2005]).
We are also persuaded that Supreme Court abused its discretion in preventing defendantfrom declaring either child as a dependent for income tax purposes. Defendant shares custody ofthe parties' younger child and meets a substantial part of the children's financial needs, and we[*3]deem it appropriate to permit him to claim the younger childas a dependent in even-numbered years (see Pachomski v Pachomski, 32 AD3d 1005, 1007 [2006];Junkins v Junkins, 238 AD2d 480, 482 [1997]; cf. Quinn v Quinn, 61 AD3d 1067, 1070 [2009]).
Defendant's remaining contentions have been considered and found to be without merit.
Mercure, J.P., Peters, Kavanagh and Stein, JJ., concur. Ordered that the judgment ismodified, on the law and the facts, without costs, by (1) reducing defendant's basic child supportobligation to $492 a week upon the oldest child's 21st birthday or his earlier emancipation, and(2) granting defendant the right to claim the parties' younger child as an exemption for federaland state income tax purposes in even-numbered years, and, as so modified, affirmed.