| Cusumano v Cusumano |
| 2012 NY Slip Op 05131 [96 AD3d 988] |
| June 27, 2012 |
| Appellate Division, Second Department |
| Maria Cusumano, Respondent, v Dominick Cusumano,Appellant. |
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In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from so much of a judgment of the Supreme Court, Suffolk County (Crecca, J.), dated November18, 2010, as, upon a decision of the same court dated July 16, 2010, made after a nonjury trial, ineffect, determined that Joseph Cusumano & Son, Inc., was marital property, set the valuationdate of Joseph Cusumano & Son, Inc., for equitable distribution purposes as the date of thecommencement of the action, determined that the value of Joseph Cusumano & Son, Inc., forpurposes of equitable distribution was $794,000, directed that he was solely responsible for anytax payments, interest, and penalties due in connection with certain joint tax liability of theparties, imputed to him a yearly income of $400,000, awarded the plaintiff child support in thesum of $1,371.15 per week, awarded the plaintiff maintenance in the sum of $6,000 per monthfor a period of seven years, awarded the plaintiff an attorney's fee in the sum of $107,500, andawarded the plaintiff a valuation expert fee in the sum of $56,000.
Ordered that the judgment is affirmed insofar as appealed from, without costs ordisbursements.
A trial court has broad discretion to select an appropriate date for measuring the value of amarital asset (see Mesholam vMesholam, 11 NY3d 24, 28 [2008]; McSparron v McSparron, 87 NY2d 275,287 [1995]; Taverna v Taverna, 56AD3d 461, 462 [2008]; Kirshenbaum v Kirshenbaum, 203 AD2d 534, 535 [1994]).Under the circumstances, the Supreme Court providently exercised its discretion in using the dateof the commencement of the action as the valuation date for Joseph Cusumano & Son, Inc. (see Rich-Wolfe v Wolfe, 83 AD3d1359, 1359-1360 [2011]; Daniel vFriedman, 22 AD3d 707, 708 [2005]). Furthermore, in determining the value of thatcorporation for equitable distribution purposes, the Supreme Court properly relied upon theopinion of the plaintiff's valuation expert (see Wasserman v Wasserman, 66 AD3d 880, 882 [2009]; Ivaniv Ivani, 303 AD2d 639, 640 [2003]; L'Esperance v L'Esperance, 243 AD2d 446, 447[1997]; cf. Merzon v Merzon, 210 AD2d 462, 464 [1994]; Wilbur v Wilbur, 116AD2d 953, 953-954 [1986]).
Under the circumstances of this case, the Supreme Court providently exercised its discretionin directing that the defendant was solely responsible for any tax payments, interest, and penaltiesdue in connection with certain joint tax liability of the parties (cf. Lago v Adrion, 93 AD3d 697[2012]; Costello v Costello, 304 AD2d 517, 519 [2003]; Fiedler v Fiedler, 230AD2d 822, 823 [1996]).[*2]
Contrary to the defendant's contention, the SupremeCourt properly imputed income to him for child support and maintenance purposes. A trial court"is not bound by a party's account of his or her own finances," and where, as the Supreme Courtproperly found here, a party's account is not believable, "the court is justified in finding a true orpotential income higher than that claimed" (Scammacca v Scammacca, 15 AD3d 382, 382 [2005] [internalquotation marks omitted]). Furthermore, contrary to the defendant's contention, the SupremeCourt properly imputed to him a yearly income of $400,000. That amount was reflective of his"past income" and "demonstrated earning potential" (Siskind v Siskind, 89 AD3d 832, 833-834 [2011]; see Steinberg v Steinberg, 59 AD3d702, 705 [2009]; Scammacca v Scammacca, 15 AD3d at 382). Moreover, thatamount was not deemed his income for child support purposes, since the Supreme Court, whichmade certain required deductions from that amount, and then made a discretionary downwardadjustment, stated that it was "cap[ping]" his income at the significantly lesser amount of$230,000.
The amount and duration of maintenance are determinations committed to the sounddiscretion of the trial court (seeWortman v Wortman, 11 AD3d 604, 606 [2004]). Under the circumstances of this case,the Supreme Court providently exercised its discretion with respect to the maintenance award (cf. Kaplan v Kaplan, 21 AD3d993, 996 [2005]).
In a matrimonial action, an award of an attorney's fee, as well as an award of an expertwitness fee, are also matters committed to the sound discretion of the trial court (see Siegel vSiegel, 284 AD2d 389, 390 [2001]; Mitzner v Mitzner, 271 AD2d 513 [2000]). Here,the Supreme Court providently exercised its discretion in awarding the plaintiff an attorney's feein the sum of $107,500 and a valuation expert fee in the sum of $56,000 (see Ivani vIvani, 303 AD2d at 639-640).
The defendant's remaining contention is not properly before this Court. Skelos, J.P.,Dickerson, Eng and Austin, JJ., concur.