Nehorayoff v. Nehorayoff

• Citation: 108 Misc.2d 311,437 N.Y.S.2d 584
• Parties: Violette NEHORAYOFF, Plaintiff, v. Andre NEHORAYOFF, Defendant.
• Decision Date: 23 March 1981
• Court: United States State Supreme Court (New York)

Page 584

437 N.Y.S.2d 584

108 Misc.2d 311

Violette NEHORAYOFF, Plaintiff, v. Andre NEHORAYOFF, Defendant.

Supreme Court, Special Term, Nassau County, Part VI.

March 23, 1981.

Herman H. Tarnow, New York City, for plaintiff.

Burton G. Rudnick, Brooklyn, for defendant.

JOHN S. LOCKMAN, Justice.

Having presided at what appears to have been the first trial of a matrimonial action under the so-called "Equitable Distribution" Law (DRL § 236 Part B), this court must now embark upon what is a maiden voyage in this State. Adding somewhat to the complexity is the fact that the case involves the valuation of a closely held, quasi-professional, corporation. The waters are not unchartered, however. The experiences of courts in our sister States provide valuable polestars to guide our course.

Doctor and Mrs. Nehorayoff were married on April 4, 1963, in Iran, where both had been born. It appears that they were cousins and that his brother was married to her sister. At the time of their marriage Dr. Nehorayoff had already graduated from medical school. Mrs. Nehorayoff, on the other hand, had only a sixth grade education. Very shortly after their marriage, the couple came to the United States where the Doctor served his internship and residency at various hospitals in the metropolitan area. Meanwhile, their first child, Liza, was born on October 5, 1964.

Upon her arrival in the United States, Mrs. Nehorayoff worked as a waitress and later was employed as a cashier in a supermarket. The period of such employment was apparently brief because she had also attended beauty school prior to the birth of Liza in 1964. After Liza was born, Mrs. Nehorayoff worked briefly as a cosmetician earning approximately $25 per week but then began attending school in pursuit of a high school equivalency diploma. School was at night and Doctor Nehorayoff stayed home and watched Liza. At some point Mrs. Nehorayoff also worked briefly as a real estate sales person earning approximately $500.

In 1968, the Nehorayoffs returned to Iran and Dr. Nehorayoff served a tour in the Iranian army. Their second child, Steven, was born in Iran on December 21, 1970. After the Doctor's army service, the Nehorayoffs returned to this country. The Doctor secured employment at various hospitals and Mrs. Nehorayoff pursued further education. Eventually Mrs. Nehorayoff graduated from college and received a B.B.A. In the beginning of 1978, Dr. Nehorayoff and another physician formed Plaza Women's Medical Center Realty, Inc. The corporation provides medical and laboratory services primarily related to the termination of pregnancies. Doctor Nehorayoff, who is an obstetrician and gynecologist, is the primary physician performing the abortions. In October of 1979, Mrs. Nehorayoff opened a restaurant known as Violette's Cuisine.

DIVORCE

In October of 1978, Mrs. Nehorayoff had occasion to obtain an order of protection against her husband from Family Court. That order expired on October 30, 1979. One day in January, 1980, while Mrs. Nehorayoff was at work one of her daughter's friends burst into the restaurant in an agitated state to report that Dr. Nehorayoff was administering corporal punishment to Liza. After stopping briefly at home, Mrs. Nehorayoff went to the police who accompanied her back to the marital residence. Once there, Dr. Nehorayoff told her that he was "going to kill her." Mrs. Nehorayoff left and returned the following morning. The Doctor chased her from the house and once again she went to the police. The next day she again returned to the home only to find her clothing in a trash bag in the basement. Subsequently, she discovered that the furniture and dishes had been removed from the marital abode. Dr. Nehorayoff visited his wife at her restaurant

seeking the whereabouts of their daughter who had apparently run away. When Mrs. Nehorayoff professed ignorance, the Doctor began throwing dishes and a lamp at her. The police were called and eventually pursuaded him to leave although he lurked outside the building for a time. After securing a new order of protection from Family Court, Mrs. Nehorayoff returned to the marital abode in March of 1980. The actions of Dr. Nehorayoff constituted cruel and inhuman treatment and rendered it unsafe for Mrs. Nehorayoff to cohabit with him. (DRL § 170(1); Echevarria v. Echevarria, 40 N.Y.2d 262, 386 N.Y.S.2d 653, 353 N.E.2d 565; Cataudella v. Cataudella, 74 A.D.2d 893, 425 N.Y.S.2d 863).

EQUITABLE DISTRIBUTION

The complaint is dated March 18, 1980, and the summons was obviously served considerably prior to July 19, 1980, the effective date of the so-called "Equitable Distribution" Law. (DRL § 236). On March 3, 1980, during a proceeding in Family Court, the parties stipulated that "in the event an action is brought in the Supreme Court ..., under the current Domestic Relations Law and the General Obligations Law effecting matrimonial actions, should the law change during the course of litigation, the party bringing the action shall have the right to invoke the provisions of those laws as if the action was brought thereunder." What eventually became DRL § 236 Part B was then pending before the legislature and was the change in law contemplated by the parties when they entered into the stipulation. Assuming inaction by the Doctor, Mrs. Nehorayoff could have availed herself of the new statute by waiting to commence her action until after July 19, 1980. Instead, in reliance upon the stipulation, she commenced her action in March of 1980. Having created this situation by entering into the stipulation, Dr. Nehorayoff is estopped from asserting that the old provisions of DRL § 236 (amended to the extent that they are now gender neutral (DRL § 236, Part A)) should govern. (Matter of Farina v. State Liquor Authority, 20 N.Y.2d 484, 492, 285 N.Y.S.2d 44, 231 N.E.2d 748). The court can conceive of no public policy which might prevent application of DRL § 236, Part B to this case.

DRL § 236, Part B(5) provides that the parties' separate property shall remain separate and that their marital property shall be equitably distributed in accordance with the circumstances of the case and of the parties and ten factors which the court is required to consider. While the court cannot distribute separate property, its value is nevertheless of some significance since one of the factors which the court is required to consider is "the probable future economic circumstances of each party." (DRL § 236, Part B(5) (d)(5)). "Separate property" means:

"(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;

(2) compensation for personal injuries;

(3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;

(4) property described as separate property by written agreement of the parties pursuant to (DRL § 236, Part B(3)). " (DRL § 236, Part B(1)(d)).

During a proceeding in this court before Justice Roncallo on January 9, 1979, the parties entered into a stipulation with regard to certain property. A judgment based upon that stipulation and granted by Justice Roncallo on February 5, 1979, established that certain funds, oriental rugs, jewelry and gold coins were the sole and exclusive property of Mrs. Nehorayoff. Some of this property was invested in a restaurant which Mrs. Nehorayoff owns and operates. Evidence offered by Mrs. Nehorayoff that the restaurant has not appreciated in value since its founding and is without current value stands uncontradicted. The court notes, however, that the restaurant's balance sheet lists as a liability some $60,000 as "Matrimonial property" is defined to mean "all property acquired by either or both spouses during marriage and before ... the commencement of a matrimonial action, regardless of the form in which title is held ...." (DRL § 236, Part B(1)(c)). Certain oriental rugs were acquired during the marriage by purchase from joint funds and others were received as wedding gifts. The rugs purchased with joint funds during marriage are clearly matrimonial property. Mrs. Nehorayoff testified that some of those which were gifts were given by her relatives and were intended to be her sole property. This otherwise unsubstantiated assertion was contradicted by Dr. Nehorayoff. "(A)ll wedding gifts, whether from the bride's 'side' or from the groom's excepting such items which are peculiarly adaptable to the personal use of either spouse, and those gifts which are specifically and unequivocally 'earmarked' as intended exclusively for the one or the other of the spouses, commonly intended for general use in the household, are the joint property of both parties to the marriage." (Avnet v. Avnet, 204 Misc. 760, 768, 124 N.Y.S.2d 517; Coppola v. Coppola, 18 A.D.2d 1004, 238 N.Y.S.2d 614). The court finds that with the exception of the two rugs determined to be separate property of Mrs. Nehorayoff by Justice Roncallo all of the oriental rugs are matrimonial property and have a combined value of $50,000 based upon the testimony of the oriental rug expert.

an indebtedness to Mrs. Nehorayoff which must be considered as one of her assets even if it is separate property. Similarly, Mrs. Nehorayoff's indebtedness of $32,500 to her husband is his separate property and an asset to him having a value of $32,500. Mrs. Nehorayoff's separate property consisting of jewelry and gold coins has a value of approximately $22,000. by stipulation and Dr. Nehorayoff offered no evidence that this property had ever appreciated in value. The judgment granted by Justice Roncallo also establishes that two 9 x 12 carpets, one a Mahal worth $5,000 and the other a Kashan worth $4,000, are Mrs. Nehorayoff's separate property.

No claim has been made that the matrimonial residence is other than matrimonial property. The court finds...