| Turco v Turco |
| 2014 NY Slip Op 03257 [117 AD3d 719] |
| May 7, 2014 |
| Appellate Division, Second Department |
[*1]
| Joanne Capace Turco,Appellant-Respondent, v James Turco,Respondent-Appellant. |
Sklar & Prusinowski, Hempstead, N.Y. (Cindy A. Prusinowski and AlexanderPotruch of counsel), for appellant-respondent.
Gassman Baiamonte Betts, P.C. Garden City, N.Y. (Stephen Gassman of counsel),for respondent-appellant.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by herbrief, from stated portions of a judgment of the Supreme Court, Nassau County(Diamond, J.), entered March 30, 2011, which, upon a decision of the same court datedNovember 10, 2010, and an amended decision of the same court dated November 18,2010, made after a nonjury trial, inter alia, (1) upon consent, awarded the plaintiff adivorce on the ground of constructive abandonment, (2) failed to award the plaintiff amarital share of the defendant's interest in his commercial bakery business, (3) awardedthe defendant a credit against the proceeds of the sales of three marital properties for100% of the amount he paid to reduce the mortgage principal on these properties duringthe pendency of the action, (4) awarded the plaintiff maintenance in the sum of only$48,000 per year for a period of seven years, and (5) awarded the plaintiff child supportin the sum of only $548.38 per week, and the defendant cross-appeals, as limited by hisbrief, from stated portions of the judgment which, inter alia, failed to direct that theplaintiff is responsible for the carrying charges on the marital residence during the postjudgment period of exclusive occupancy.
Ordered that the appeal from so much of the judgment as, upon consent, awarded theplaintiff a divorce on the ground of constructive abandonment is dismissed; and it isfurther,
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, (1) by adding a provision thereto awarding the plaintiff 14.5% of thedefendant's interest in his commercial bakery business; (2) by reducing the award to thedefendant of a credit against the proceeds of the sales of three marital properties from100% to 50% of the amount he paid to reduce the mortgage principal on these propertiesduring the pendency of the action, (3) by adding a provision thereto directing that theplaintiff is responsible for the carrying charges on the marital residence during the postjudgment period of exclusive occupancy, (4) by adding a provision thereto [*2]awarding the plaintiff a credit against the proceeds of thesale of the marital residence for 100% of the amount she pays to reduce the mortgageprincipal from the date of the judgment until the sale of the marital residence, (5) bydeleting the provision thereof awarding the plaintiff maintenance in the sum of $48,000per year for a period of seven years, and substituting therefor a provision awarding theplaintiff maintenance in the sum of $6,000 per month for a period of seven years, and (6)by deleting the provision thereof awarding the plaintiff child support in the sum of$548.38 per week, and substituting therefor a provision awarding the plaintiff childsupport in the sum of $914.55 per week, subject to reduction to the sum of $621.89 perweek when the parties' eldest child reaches the age of 21; as so modified, the judgment isaffirmed insofar as reviewed on the appeal and insofar as cross-appealed from, withoutcosts or disbursements, and the matter is remitted to the Supreme Court, Nassau County,for the entry of an amended judgment.
The plaintiff's appeal from so much of the judgment as awarded her a divorce on theground of constructive abandonment must be dismissed because that portion of thejudgment was entered upon her consent, and, thus, she is not aggrieved thereby(see CPLR 5511; Tongue v Tongue, 61 NY2d 809, 810 [1984]; Dudla v Dudla, 50 AD3d1255, 1256-1257 [2008]; Saleh v Saleh, 40 AD3d 617, 617 [2007]; Shifer v Shifer, 27 AD3d549, 549 [2006]).
"The determination of a motion for leave to voluntarily discontinue an actionpursuant to CPLR 3217 (b) rests within the sound discretion of the court" (Wells Fargo Bank, N.A. vChaplin, 107 AD3d 881, 883 [2013]; see Tucker v Tucker, 55 NY2d378, 383 [1982]). "In the absence of special circumstances, such as prejudice to asubstantial right of the defendant, or other improper consequences, a motion for avoluntary discontinuance should be granted" (Wells Fargo Bank, N.A. v Chaplin,107 AD3d at 883 [internal quotation marks omitted]; see Tucker v Tucker, 55NY2d at 383-384). Here, the Supreme Court providently exercised its discretion indenying the plaintiff's application, in effect, to voluntarily discontinue the action, madeon the first day of trial, since the record supports a finding that she was merelyattempting to avoid an adverse order of the court (see Kaplan v Village of Ossining, 35 AD3d 816, 817[2006]; Casey v Custom Crushing & Materials, 309 AD2d 726, 727 [2003]),and there was a showing that the defendant would be prejudiced by suchdiscontinuance.
"The granting of an adjournment for any purpose is a matter resting within the sounddiscretion of the trial court" (Matter of Anthony M., 63 NY2d 270, 283 [1984];see Delijani v Delijani, 100AD3d 823, 824 [2012]; Matter of Branch v Cole-Lacy, 84 AD3d 953, 954 [2011])."In making such a determination, the court must undertake a balanced consideration ofall relevant factors" (Matter ofSicurella v Embro, 31 AD3d 651 [2006]; see Matter of Tripp, 101 AD3d 1137, 1138 [2012]). Giventhe numerous prior adjournments and the extensive delays in this action, as well as theplaintiff's history of discharging counsel, the Supreme Court providently exercised itsdiscretion in denying her request during trial for an adjournment to obtain new counsel(see Matter of John L.P.[Boykin—Taylor], 72 AD3d 828 [2010]; Matter of Sicurella vEmbro, 31 AD3d at 651; Faulkner v Faulkner, 19 AD3d 1092 [2005]; Natoli vNatoli, 234 AD2d 591 [1996]).
In light of the Supreme Court's finding that the defendant's interest in his commercialbakery business had increased from 50% at the time of the parties' marriage, to 79% bythe time of trial, this 29% increase in interest, purchased by the defendant with maritalfunds, constituted marital property and, therefore, the plaintiff is entitled to one-halfthereof, or a 14.5% interest (see Domestic Relations Law § 236 [B][1] [c]; [5] [c]; Beroza vHendler, 71 AD3d 615, 617 [2010]; Wegman v Wegman, 123 AD2d220, 230 [1986]).
As to that portion of the defendant's interest in his business that was acquired beforethe marriage and is separate property (see Domestic Relations Law§ 236 [B] [1] [d] [1]), in order for appreciation in the value of this asset tobe deemed marital property subject to equitable distribution, the plaintiff was required to"demonstrate the manner in which [her] contributions resulted in the increase in valueand the amount of the increase which was attributable to [her] efforts" (Embury v Embury, 49 AD3d802, 804 [2008] [internal quotation marks omitted]; see Price v Price, 69NY2d 8, 18 [1986]). The plaintiff, however, did not sustain her burden of proof (see Morales v Inzerra, 98AD3d 484, 484 [2012]; Embury v Embury, 49 AD3d at 804; Tzanopoulos v Tzanopoulos,18 AD3d 464, 465 [2005]; Burgio v Burgio, 278 AD2d 767, 770[2000]).
[*3] "The trial court is vested withbroad discretion in making an equitable distribution of marital property, and unless it canbe shown that the court improvidently exercised that discretion, its determination shouldnot be disturbed" (Saleh vSaleh, 40 AD3d 617, 617-618 [2007] [internal quotation marks and citationomitted]; see Aloi v Simoni,82 AD3d 683, 685 [2011]). "Moreover, where, as here, the determination as toequitable distribution has been made after a nonjury trial, the evaluation of the credibilityof the witness and the proffered items of evidence is committed to the sound discretionof the trial court, and its assessment of the credibility of witnesses and evidence isafforded great weight on appeal" (Schwartz v Schwartz, 67 AD3d 989, 990 [2009]; see Franco v Franco, 97 AD3d785, 786 [2012]). Here, there is no basis to disturb the Supreme Court'sdeterminations regarding the equitable distribution of the parties' property. However, theSupreme Court improvidently exercised its discretion in awarding the defendant a creditagainst the proceeds of the sales of three marital properties for 100% of the amount hepaid to reduce the mortgage principal on these properties during the pendency of theaction. Since the mortgages are marital debt, to be shared equally by the parties (see Epstein v Messner, 73AD3d 843, 845 [2010]), and "[g]enerally, it is the responsibility of both parties tomaintain the marital residence . . . during the pendency of a matrimonialaction," the defendant was entitled to only a 50% credit for the reduction in mortgageprincipal during the pendency of the action (Le v Le, 82 AD3d 845, 846 [2011] [internal quotationmarks omitted]; see Judge vJudge, 48 AD3d 424, 425-426 [2008]; Palumbo v Palumbo, 10 AD3d 680, 682 [2004]; Litmanv Litman, 280 AD2d 520, 522 [2001]).
However, the Supreme Court erred when it awarded the plaintiff maintenance ofonly $48,000 per year. The defendant's account of his own finances was not believable,and thus, the Supreme Court was not bound by it (see Cusumano v Cusumano, 96 AD3d 988, 989 [2012];Ivani v Ivani, 303 AD2d 639 [2003]). Rather, given that the defendant'sexpenses, as outlined in his statement of net worth, exceeded his claimed income by morethan $100,000, and that he operated a cash business, determined his own salary, and didnot take any distributions from his business, the Supreme Court should have imputed anadditional $100,000 in income to him (see Ashmore v Ashmore, 92 AD3d 817, 819 [2012],cert denied 568 US &mdash, 133 S Ct 1642 [2013]; see also Scammacca vScammacca, 15 AD3d 382 [2005]; Matter of Klein v Klein, 251 AD2d733, 735 [1998]). Considering that additional imputed income, along with thecomfortable lifestyle the parties enjoyed during this 15-year marriage, the distribution ofmarital property, the health of the parties, and the plaintiff's ability to becomeself-supporting, the plaintiff is entitled to an award of maintenance in the sum of $6,000per month for seven years (see Domestic Relations Law § 236 [B][6] [a]; Cusumano v Cusumano, 96 AD3d at 989-990; Lovece v Lovece,245 AD2d 345, 346-347 [1997]). However, the maintenance award was properly madetaxable to the plaintiff (seeBaron v Baron, 71 AD3d 807, 810 [2010]).
Similarly, in calculating child support pursuant to the Child Support Standards Act(see Domestic Relations Law § 240 [1-b]), the Supreme Courtshould have imputed an additional annual income of $100,000 to the defendant (seeAshmore v Ashmore, 92 AD3d at 819; Cusumano v Cusumano, 96 AD3d at989). The Supreme Court, however, properly imputed an annual income of $20,000 tothe plaintiff, which "represent[ed] her past demonstrated earning capacity" (DiFiore v DiFiore, 87 AD3d971, 974 [2011]; see Sotnikv Zavilyansky, 101 AD3d 1102, 1103 [2012]; Mosso v Mosso, 84 AD3d757, 758-759 [2011]). As a result, taking into account the $72,000 award ofmaintenance, the parties' combined income is $210,195. An application of the statutoryrate of 25% for the parties' two children results in a basic child support obligation of$52,548.75, and the defendant's pro rata share is $914.55 per week, which, because theparties' eldest child has since turned 21 during the pendency of this appeal, must bereduced to $621.89 (see Domestic Relations Law § 240 [1-b] [b] [3][i], [ii]; Beroza v Hendler,109 AD3d 498, 501-502 [2013]; Matter of Cancilla v Cancilla, 22 AD3d 490, 491[2005]).
The plaintiff moved pursuant to CPLR 4404 (b), inter alia, to set aside certainportions of the decision and for a new trial. Since the motion was not made within 15days after the decision, and the plaintiff failed to demonstrate good cause for the delay,the Supreme Court providently exercised its discretion in denying the motion as untimely(see CPLR 4405; Brzozowy v ELRAC, Inc., 39 AD3d 451, 453 [2007];cf. Ehrman vEhrman, 67 AD3d 955, 956 [2009]) and, in any event, correctly determined thatthe motion was improperly based on evidence known and accessible to the plaintiff butnot introduced at the trial (seeDa Silva v Savo, 97 AD3d 525, 526 [2012]; Grossbaum v Dil-Hill RealtyCorp., 58 AD2d 593, 594 [1977]; Stambaugh v Stambaugh, 226 AD2d 363[1996]; cf. Matter ofTorregroza v [*4]Gomez, 85 AD3d 932, 933[2011]).
We agree with the defendant that the Supreme Court intended to make the plaintiffresponsible for the carrying charges on the marital residence during her postjudgmentperiod of exclusive occupancy, and we modify the judgment by specifically directing thatthe plaintiff is responsible for the carrying charges on the marital residence. However,the Supreme Court improvidently exercised its discretion in failing to award the plaintiffa credit against the proceeds of the sale of the marital residence for 100% of the amountshe pays to reduce the mortgage principal from the date of the judgment until the sale ofthe marital residence (see Markopoulos v Markopoulos, 274 AD2d 457, 459[2000]).
The parties' remaining contentions are without merit. Dillon, J.P., Chambers, Austinand Duffy, JJ., concur.