| Halse v Halse |
| 2012 NY Slip Op 01846 [93 AD3d 1003] |
| March 15, 2012 |
| Appellate Division, Third Department |
| Steven Halse, Appellant, v Melissa Halse,Respondent. |
—[*1] McNamee, Lochner, Titus & Williams, P.C., Albany (Bruce J. Wagner of counsel), forrespondent.
Malone Jr., J. Appeals (1) from a judgment of the Supreme Court (Nolan Jr., J.), enteredMarch 11, 2011 in Saratoga County, ordering, among other things, equitable distribution of theparties' marital property, upon a decision of the court, and (2) from an order of said court, enteredMarch 11, 2011 in Saratoga County, which, among other things, partially granted plaintiff'smotion to hold defendant in contempt.
Plaintiff commenced this action for divorce in September 2008 and, thereafter, a pendentelite order was entered which, among other things, directed the parties to submit to drug testingand prohibited the parties from selling or transferring any assets. In June 2010, plaintiff moved,by order to show cause, to have defendant held in contempt, alleging that she had sold variousmarital assets and was using drugs and alcohol. After a nonjury trial, Supreme Court issued ajudgment of divorce, ordered the equitable distribution of marital assets, awarded maintenance todefendant and ordered plaintiff to pay child support for the parties' two children. In a separateorder, the court adjudged defendant to be in contempt of the pendente lite order, but imposed nopunishment. Plaintiff appeals.
Initially, "[s]ubstantial deference is accorded to the trial court's determination regardingequitable distribution so long as the requisite statutory factors were considered" (Shapiro v Shapiro, 91 AD3d 1094,1095 [2012]; see Domestic Relations Law § 236 [B] [5] [d]). In this case, it isapparent that Supreme Court considered all of the relevant factors before equitably distributingthe parties' marital assets; of particular note is the long duration of the marriage and [*2]the parties widely disparate future financial circumstances.Although plaintiff contends that Supreme Court erred by valuing his checking account as of April2010, the court has substantial discretion in setting the valuation date any time between thecommencement of the action and the date of the trial (see Domestic Relations Law§ 236 [B] [4] [b]; McSparron v McSparron, 87 NY2d 275, 287 [1995]), and it wasnot an abuse of discretion for the court to use the value as stated in plaintiff's April 2010 swornstatement of net worth. In addition, because there was no conclusive proof that the checkingaccount had increased in value since the commencement of the action solely as a result of theaddition of plaintiff's separate property, the court's decision to award defendant half of the valueof the account likewise was not an abuse of discretion.
Moreover, contrary to plaintiff's contention, the record reflects that Supreme Courtadequately addressed defendant's dissipation of marital assets (see Domestic RelationsLaw § 236 [B] [5] [d] [12]; Noblev Noble, 78 AD3d 1386, 1388 [2010]). Notably, the court awarded plaintiff adjustmentsto compensate him for the value of various items of marital property that had been improperlysold by defendant, including $12,500 representing half of the value of a backhoe.[FN1]As for the marital residence, we are not persuaded by plaintiff's contention that he should havebeen awarded an adjustment based upon defendant's alleged dissipation of that asset. While theevidence did indicate that defendant had not maintained the residence in optimal condition, therewas also evidence that the real estate market was overburdened with properties in the residence'sprice range and that market conditions, in general, had declined. As such, there is no definitiveproof that the approximately $200,000 decline in the market value of the house was due solely todefendant's actions. Further, although plaintiff opined that the residence needed between $45,000and $62,000 in repairs to become marketable, he submitted no proof to support these figures.Accordingly, we find no abuse of discretion in Supreme Court's determination to award eachparty a 50% interest in the marital residence.
Turning to the issue of maintenance, the amount and duration of maintenance awarded is amatter committed to the discretion of the trial court, after due consideration of the statutoryfactors and the parties' standard of living during the marriage (see Domestic RelationsLaw § 236 [B] [6] [a]; Roberto vRoberto, 90 AD3d 1373, 1376 [2011]). In awarding defendant maintenance, SupremeCourt considered the statutory factors and determined that a maintenance award to defendant inthe amount of $3,000 per month for two years and then $2,500 per month for three years wasappropriate. Although defendant did not offer a statement of net worth at trial,[FN2]the record contains sufficient evidence regarding both parties' assets and liabilities to [*3]permit us to conclude that the durational maintenance award was aprovident exercise of the court's discretion (see Smith v Smith, 17 AD3d 959, 960 [2005]).
Finally, we are not persuaded by plaintiff's contention that Supreme Court did notappropriately compensate him after finding defendant in contempt of the prior court order.Plaintiff was appropriately credited with his 50% interest in the market value of the backhoe thatdefendant wrongfully sold (see Judiciary Law § 773). In light of, among otherthings, the parties' disparate incomes, we do not find that the court abused its discretion by notawarding plaintiff counsel fees associated with making the contempt motion (seeDomestic Relations Law § 237 [b]).
Mercure, A.P.J., Rose, Spain and McCarthy, JJ., concur. Ordered that the judgment and orderare affirmed, without costs.
Footnote 1: We are not persuaded byplaintiff's contention that Supreme Court erred by classifying the backhoe as marital property. Allproperty acquired by either party during the marriage, regardless of how title to it is held, ispresumed to be marital property (seeFields v Fields, 15 NY3d 158, 165 [2010]). While at some point plaintiff may have usedthe backhoe in his business operations, that fact does not transform the backhoe into separateproperty.
Footnote 2: We note that, althoughdefendant filed a statement of net worth with Supreme Court in 2008, it was not proper for thecourt to take judicial notice of the factual material contained therein (see e.g. Matter of Grange v Grange, 78AD3d 1253, 1255 [2010]).