| Greisman v Greisman |
| 2012 NY Slip Op 06280 [98 AD3d 1079] |
| September 26, 2012 |
| Appellate Division, Second Department |
| Abraham D. Greisman, Appellant, v Sterna Greisman,Respondent. |
—[*1]
In an action for a divorce and ancillary relief, the plaintiff husband appeals, as limited by hisbrief, from stated portions of a judgment of the Supreme Court, Kings County (Sunshine, J.),dated January 15, 2010, which, upon, inter alia, a decision of the same court dated June 29, 2009,made after a nonjury trial, among other things, (a) awarded the defendant wife exclusiveoccupancy of the marital residence until the parties' youngest child reaches the age of 18 or isotherwise emancipated, (b) imputed to him an annual income of $93,570, (c) awarded thedefendant the sum of $10,665.60 representing one-third of the value of the plaintiff's enhancedearning capacity derived from his certification as a certified public accountant, (d) awarded thedefendant the sum of $31,663.50 representing one-third of the value of plaintiff's accountingpractice, and (e) awarded the defendant the sum of $204,701.01 representing one-third of thevalue of the plaintiff's interest in an investment property located on Carroll Street in Brooklyn.
Ordered that the judgment is affirmed insofar as appealed from, without costs ordisbursements.
Contrary to the plaintiff husband's contentions, the Supreme Court did not improvidentlyexercise its discretion in awarding the defendant wife exclusive occupancy of the maritalresidence until the parties' youngest child reaches the age of 18 or is otherwise emancipated. "'[E]xclusive possession of the marital residence is usually granted to the spouse who has custodyof the minor children of the marriage' " (Mosso v Mosso, 84 AD3d 757, 760 [2011], quoting Goldblumv Goldblum, 301 AD2d 567, 568 [2003]; see Waldmann v Waldmann, 231 AD2d710, 711 [1996]; Hillmann v Hillmann, 109 AD2d 777, 778 [1985]). In making such adetermination, "the need of the custodial parent to occupy the marital residence is weighedagainst the financial need of the parties" (Goldblum v Goldblum, 301 AD2d at 568).Here, the evidence at trial established that the parties were capable of maintaining the maritalresidence, and the plaintiff failed to establish an immediate need for his portion of the proceedsof the sale of the marital residence and failed to demonstrate that suitable comparable housingcould be obtained at a cost less than that necessary to maintain the marital residence (seeMosso v Mosso, 84 AD3d at 760; Mazzone v Mazzone, 290 AD2d 495, 496 [2002];Waldmann v Waldmann, 231 AD2d at 711; Poretsky v Poretsky, 176 AD2d 713,714-715 [1991]). In addition, as the Supreme Court properly noted, it would be inappropriate toallow the plaintiff to utilize his failure to make court-ordered child support payments as a way toforce the sale of the [*2]marital residence.
The plaintiff's contention that the Supreme Court improperly imputed to him an annualincome of $93,570 is without merit. "A court need not rely upon a party's own account of his [orher] finances, but may impute income based upon the party's past income or demonstrated futurepotential earnings" (Steinberg vSteinberg, 59 AD3d 702, 705 [2009]; see Duffy v Duffy, 84 AD3d 1151, 1152 [2011]; Wesche v Wesche, 77 AD3d 921,923 [2010]; Brown v Brown, 239 AD2d 535 [1997]). "Where a party's account is notbelievable, the court may impute a true or potential income higher than alleged" (Wesche vWesche, 77 AD3d at 923, citing Lilikakis v Lilikakis, 308 AD2d 435 [2003]; seeDuffy v Duffy, 84 AD3d at 1152). Here, the Supreme Court providently exercised itsdiscretion in imputing income to the plaintiff based on, among other things, the parties' tax returnfiled just prior to the commencement of this action and evidence of the plaintiff's attempts toconceal his true income.
The plaintiff's contention that the Supreme Court engaged in double counting with respect tothe maintenance award is without merit because the award was not based upon his excess income(see Keane v Keane, 8 NY3d115, 119 [2006]; Weintraub vWeintraub, 79 AD3d 856, 857 [2010]; Kerrigan v Kerrigan, 71 AD3d 737, 738 [2010]; Groesbeck v Groesbeck, 51 AD3d722, 723 [2008]; Griggs vGriggs, 44 AD3d 710, 713 [2007]). Insofar as the plaintiff's certification as a certifiedpublic accountant is concerned, although a portion of the value of that certification wasdistributed as a marital asset, the Supreme Court made an appropriate corresponding adjustmentwhen determining the maintenance award (see Grunfeld v Grunfeld, 94 NY2d 696, 706[2000]).
Moreover, in determining the value of the plaintiff's business and his certification, theSupreme Court properly relied on the report prepared by the neutral appraiser. "There is nouniform rule for fixing the value of a going business and the valuation of a business for equitabledistribution purposes is an exercise properly with the fact-finding power of the trial court, guidedby expert testimony" (Bricker vBricker, 69 AD3d 546, 547 [2010]; see Burns v Burns, 84 NY2d 369, 375[1994]; Wasserman v Wasserman,66 AD3d 880, 882 [2009]). Here, the opinion of the neutral expert was not challenged, andthe Supreme Court's conclusion as to the value of the business is supported by the record. Withregard to the certification, the neutral expert properly calculated the value of the plaintiff'senhanced earning capacity by comparing the expected earnings of a similarly situated individualwith the plaintiff's actual normalized earnings as a certified public accountant and applying apresent value discount (see Duspiva v Duspiva, 181 AD2d 810, 810-811 [1992];McGowan v McGowan, 142 AD2d 355, 359 [1988]).
Similarly, the Supreme Court did not improvidently exercise its discretion in determining thevalue of the investment property located on Carroll Street in Brooklyn. The valuation rested onthe credibility of the defendant's expert witness and his appraisal techniques, and was supportedby the record (see Sieger v Sieger,51 AD3d 1004, 1004 [2008]; Madonna v Madonna, 265 AD2d 455, 455 [1999]).Furthermore, contrary to the plaintiff's contention, he failed to meet his burden of establishingthat his 50% ownership interest in that property, which was acquired during the marriage, wasnot marital property subject to equitable distribution (see Mosso v Mosso, 84 AD3d at760; Tsigler v Kasymova, 73 AD3d1159, 1159 [2010]; Lischynsky v Lischynsky, 120 AD2d 824, 826 [1986]).
The plaintiff's remaining contentions are without merit. Skelos, J.P., Belen, Lott and Miller,JJ., concur.