Butler v. Butler

• Citation: 256 A.D.2d 1041,683 N.Y.S.2d 603
• Parties: 1998 N.Y. Slip Op. 11,617 Genevieve J. BUTLER, Appellant, v. F. James BUTLER, Respondent.
• Decision Date: 30 December 1998
• Court: New York Supreme Court Appellate Division

Page 603

683 N.Y.S.2d 603

1998 N.Y. Slip Op. 11,617

Genevieve J. BUTLER, Appellant, v. F. James BUTLER, Respondent.

Supreme Court, Appellate Division Third Department.

Dec. 30, 1998.

Robert M. Jacon, East Greenbush, for appellant.

Harris & Bixby (Chad E. Balzer of counsel), Albany, for respondent.

Before: MIKOLL, J.P., CREW III, YESAWICH Jr. and GRAFFEO, JJ.

GRAFFEO, J.

Appeal from a judgment of the Supreme Court (Canfield, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered January 29, 1998 in Rensselaer County, upon a decision of the court.

The parties were married in June 1974 and have no children, although plaintiff has two adult children from a previous marriage. During the marriage, plaintiff and defendant acquired several parcels of real property, primarily located in Rensselaer County. In May 1993, plaintiff filed for divorce alleging abandonment. At the conclusion of the trial, Supreme Court granted a divorce to plaintiff and awarded equitable distribution of the marital property. Plaintiff appeals, claiming that Supreme Court's distribution was not equitable and that temporary maintenance was improperly terminated.

It is axiomatic that the factors enumerated in Domestic Relations Law § 236(B)(5)(d) should be considered in the court's equitable distribution of marital property (see, Avramis v. Avramis, 245 A.D.2d 585, 664 N.Y.S.2d 885; Vail-Beserini v. Beserini, 237 A.D.2d 658, 654 N.Y.S.2d 471). However, the statutory factors do not have to be specifically cited where it is evident that the relevant factors were taken into consideration by the court and the reasons for its decision are articulated (see, Fraley v. Fraley, 235 A.D.2d 997, 652 N.Y.S.2d 889; Chasin v. Chasin, 182 A.D.2d 862, 582 N.Y.S.2d 512; Sperling v. Sperling, 165 A.D.2d 338, 567 N.Y.S.2d 538). We reject plaintiff's contention that Supreme Court merely adopted defendant's proposed findings of fact without due consideration of the factors set forth in Domestic Relations Law § 236(B)(5)(d).

Our review of the record reveals that plaintiff failed to provide corroborating evidence supporting certain claims and since her credibility could be questioned due to particular inconsistencies, Supreme Court was within its discretion to discount unsubstantiated claims of plaintiff (see, Wilcox v. Wilcox, 233 A.D.2d 565, 649 N.Y.S.2d 222; Parrish v. Parrish, 213 A.D.2d 928, 623 N.Y.S.2d 955; Monette v. Monette, 177 A.D.2d 802, 576 N.Y.S.2d 416). Supreme Court did, in fact, adequately set forth the basis for its distribution and made reference to the multitude of factors considered, including the respective incomes and expenses of the parties, future financial circumstances of each party, earning capacities of the parties, the medical condition of the parties and the disparities in income in its formulation of its equitable distribution award. The fact that the court did not cite every factor and address each self-serving claim of the parties is not dispositive (see, Fraley v. Fraley, supra).

With respect to the various properties owned by the parties, a review of the record leads us to conclude that there was a sufficient evidentiary basis to support Supreme Court's determinations regarding distributive awards. As to the marital residence, the parties stipulated that the value of the realty located at 21 New Jersey Avenue in the City of Rensselaer, Rensselaer County, was $87,250 and the property was properly deemed a marital asset despite title in plaintiff's name. Plaintiff cites as error Supreme Court's failure to credit her with an $11,000 contribution at the time the property was purchased in 1975. Since the assessment of the credibility of witnesses and the quality of proof is best made by the trial court (see, Monette v. Monette, supra, at 802, 576 N.Y.S.2d 416), we find no reason in the record to disturb Supreme Court's determination to distribute one half of the stipulated value of the marital residence (i.e., $43,625) to defendant, especially in the absence of substantiation of plaintiff's claim. Supreme Court did not abuse its discretion in considering defendant's improvements to the residence and the practice of the parties wherein assets were placed in plaintiff's name to protect their holdings from potential losses due to defendant's business activities.

Plaintiff claims that Supreme Court erroneously established the date for valuation of certain assets. Although marital property is generally valued at the time the action is commenced (see, Zurner v. Zurner, 213 A.D.2d 906, 624 N.Y.S.2d 301, lv. denied 87 N.Y.2d 802, 638 N.Y.S.2d 425, 661 N.E.2d 999), valuation at the time of trial is justified where valuation on the date of the action would be inequitable (see, Lord v. Lord, 124 A.D.2d 930, 508 N.Y.S.2d 676; see also, Zurner v. Zurner, supra; Patelunas v. Patelunas, 139 A.D.2d 883, 527 N.Y.S.2d 325). Here, defendant filed for bankruptcy in 1994, prior to the date of trial but after commencement of the divorce action. Valuation of defendant's business at the time the action was commenced (i.e., May 1993) would have resulted in inaccurate income, revenue and asset valuations since prior to trial defendant was compelled to sell all of the business assets in July 1995 at auction pursuant to the bankruptcy proceeding. There is no evidence in the record that the bankruptcy was an attempt by defendant to avoid the financial consequences of the divorce and, in fact, defendant accumulated $30,000 in credit card debt from 1992 until 1994 in his efforts to keep the business afloat. In addition, the proceeds from the sale of the assets of defendant's business were used to satisfy debts incurred by the business. Based on the testimony presented and the credibility determinations best left to the determination of the trial court, we find no error in the valuation dates established by Supreme Court.

In view of the foregoing, Supreme Court did not abuse its discretion in valuing the other real estate acquired by the parties and properly calculated distributive awards after reviewing the improvements made by the parties, the existence of encumbrances, the proceeds realized from sales and any dissipation of the proceeds by the parties. However, we concur with plaintiff that an adjustment is necessary regarding the value of her personalty removed by defendant when a trailer was moved from the parties' Schroon Lake property to the marital residence. After a hearing, Supreme Court (Spain, J.) issued an order on November 9, 1994 finding defendant in contempt of a prior court order which directed the parties to preserve and maintain their assets. Based on Supreme Court's finding, we find plaintiff's testimony claiming a $3,000 property loss to be uncontroverted and, therefore, defendant's distributive award of $11,000 in connection with the parties' Schroon Lake camp shall be reduced to an $8,000 distributive award.

We reject plaintiff's contention that Supreme Court erred in its distribution of the parties' liquid assets. Although plaintiff contended that a $90,000 account belonged to her children, plaintiff offered no documentary evidence or testimony of third parties in support of her claim that these funds were bequeathed to her children by her first husband and that her children requested that she retain the moneys. Based on the evidence presented, Supreme Court had an insufficient basis to deny defendant his equitable share of $45,000. With respect to the dissipation of other accounts, plaintiff's claims are conclusory and rely on the credibility of the parties, and in such circumstances we shall afford the trial court great...