| Franco v Franco |
| 2012 NY Slip Op 05721 [97 AD3d 785] |
| July 25, 2012 |
| Appellate Division, Second Department |
| Marie Claire Franco, Respondent-Appellant, v SauveurFranco, Appellant-Respondent. |
—[*1] Coffinas & Lusthaus, P.C., Brooklyn, N.Y. (Maria Coffinas of counsel), forrespondent-appellant.
In an action for a divorce and ancillary relief, the defendant appeals (1), as limited by hisbrief, from so much of a judgment of the Supreme Court, Kings County (Adams, J.), enteredNovember 1, 2010, as, upon a decision of the same court dated June 25, 2010, made after anonjury trial, equitably distributed the parties' marital property and awarded the plaintiff the sumof $15,000 in counsel fees, (2), as limited by his brief, from so much of an order of the samecourt dated September 27, 2011, as granted those branches of the plaintiff's motion which wereto enforce certain provisions of the judgment by directing him to execute a bargain and sale deedtransferring his interest in the former marital residence to the plaintiff, directing the entry of amoney judgment in favor of the plaintiff in the principal sums of $702,333 and $9,093, anddirecting him to transfer his shares of stock in JTS Management of Hallandale, Inc., to theplaintiff, and for an award of appellate counsel fees in the sum of $12,000 and counsel fees forthe enforcement application in the sum of $7,000, and (3) from a money judgment of the samecourt entered October 25, 2011, which, upon so much of the order dated September 27, 2011, asgranted that branch of the plaintiff's motion which was to enforce certain provisions of thedivorce judgment by directing the entry of a money judgment in favor of the plaintiff in theprincipal sums of $702,333 and $9,093, is in favor of the plaintiff and against him in theprincipal sums of $702,333 and $9,093, and the plaintiff cross-appeals from the judgment enteredNovember 1, 2010.
Ordered that the appeal from so much of the order dated September 27, 2011, as granted thatbranch of the plaintiff's motion which was to enforce certain provisions of the judgment enteredNovember 1, 2010, by directing the entry of a money judgment in favor of the plaintiff in theprincipal sums of $702,333 and $9,093, is dismissed, as that portion of the order was supersededby the money judgment entered October 25, 2011; and it is further,
Ordered that the cross appeal from the judgment entered November 1, 2010, is dismissed asabandoned; and it is further,[*2]
Ordered that the judgment entered November 1, 2010, isaffirmed insofar as appealed from; and it is further,
Ordered that the order dated September 27, 2011, is affirmed insofar as reviewed; and it isfurther,
Ordered that the money judgment entered October 25, 2011, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the plaintiff.
This action for a divorce and ancillary relief arises from the termination of a 41-yearmarriage. During the course of the marriage, the defendant was the sole source of financialsupport for the plaintiff and their three children (now emancipated), while the plaintiff, whonever worked outside of the home, took care of the marital home and the parties' children. Alsoduring the course of the marriage, the parties acquired a number of commercial properties andbusiness interests, as well as significant liquid assets, which were equitably distributed betweenthe parties by the Supreme Court following a nonjury trial. The plaintiff's distributive award wasvalued at $3,032,226 and consisted largely of the liquid assets, and the defendant's award wasvalued at $2,700,000, consisting largely of rental income-producing property, prior to variousadjustments.
"While the distribution of marital property must be equitable, there is no requirement that theassets be split evenly" (Giokas vGiokas, 73 AD3d 688, 689 [2010]; see DeSouza-Brown v Brown, 71 AD3d 946 [2010]; Arrigo v Arrigo, 38 AD3d 807[2007]). "A trial court is vested with broad discretion in making an equitable distribution ofmarital property, and 'unless it can be shown that the court improvidently exercised thatdiscretion, its determination should not be disturbed' " (Schwartz v Schwartz, 67 AD3d 989, 990 [2009], quoting Saleh v Saleh, 40 AD3d 617,617-618 [2007]; see Sebag v Sebag, 294 AD2d 560 [2002]). Moreover, where, as here,the determination as to equitable distribution has been made after a nonjury trial, the trial court'sassessment of the credibility of witnesses is afforded weight on appeal (see Schwartz vSchwartz, 67 AD3d at 990; Jones-Bertrand v Bertrand, 59 AD3d 391 [2009]; Grasso v Grasso, 47 AD3d 762,764 [2008]; Antes v Antes, 304 AD2d 597, 597-598 [2003]). Here, there is no basis todisturb the Supreme Court's determinations regarding the equitable distribution of the parties'property.
In exercising its discretionary power to award counsel fees, a court should review thefinancial circumstances of both parties together with all the other circumstances of the case,which may include the relative merit of the parties' positions, as well as the tactics of a party inunnecessarily prolonging the litigation (see DeCabrera v Cabrera-Rosete, 70 NY2d 879,881 [1987]; Powers v Wilson, 56AD3d 639, 641 [2008]; Prichep vPrichep, 52 AD3d 61, 64 [2008]). Under the circumstances of this case, the SupremeCourt's award of counsel fees to the plaintiff, including appellate counsel fees to defend againstthe defendant's appeal and counsel fees to enforce the defendant's obligations under the divorcejudgment, were a provident exercise of discretion (see Domestic Relations Law§§ 237, 238; Fields vFields, 82 AD3d 542, 542-543 [2011]; D'Anna v D'Anna, 17 AD3d 400, 402 [2005]; Levy v Levy, 4 AD3d 398 [2004]).
The defendant's remaining contentions are without merit. Mastro, A.P.J., Balkin, Sgroi andCohen, JJ., concur.