Capasso v. Capasso

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before KUPFERMAN; WALLACH
• Citation: Capasso v. Capasso, 517 N.Y.S.2d 952, 129 A.D.2d 267 (N.Y. App. Div. 1987)
• Decision Date: 02 July 1987
• Parties: Carl A. CAPASSO, Plaintiff-Respondent, v. Nancy CAPASSO, Defendant-Appellant.

Page 952

517 N.Y.S.2d 952

129 A.D.2d 267

Carl A. CAPASSO, Plaintiff-Respondent, v. Nancy CAPASSO, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

July 2, 1987.

Myrna Felder, of counsel (Raoul Lionel Felder, P.C., New York City, attorney), for defendant-appellant.

Samuel G. Fredman, of counsel (Alton L. Abramowitz with him on brief, Fink, Weinberger, Fredman, Berman & Lowell, P.C., New York City, attorneys), for plaintiff-respondent.

Before KUPFERMAN, J.P., and SULLIVAN, MILONAS, ROSENBERGER and WALLACH, JJ.

WALLACH, Justice.

In a prior decision on this appeal (Capasso v. Capasso, 119 A.D.2d 268, 506 N.Y.S.2d 686), we ruled that requests for findings of fact submitted pursuant to CPLR 4213(a) cannot constitute the decision of the court mandated by Domestic Relations Law § 236(B)(5)(g), and remanded for a decision. In addition, we directed the trial court, on remand, to give "some recompense" to the wife on account of her direct and indirect contributions to the husband's business career, to make an additional, specific finding of fact as to the total value of the marital property, and to make additional, unspecified findings of fact as would show how the values assigned particular assets were ascertained. Finally, we made our own finding of fact as to the value of certain properties located in Long Island City. The trial court having rendered a decision, the matter is before us again together with "supplemental" briefs. We note that no requests for findings of fact pursuant to CPLR 4213(a) were made by the parties on remand.

In its decision on remand, the trial court did not apply the value we assigned to the Long Island City properties, did not compensate the wife for her contributions to the husband's business career, and did not make any additional findings explanatory of its valuation of particular assets. With the case in this posture, we would be inclined to remand again, perhaps to a different Judge, were it not that both sides argue that the record is adequate to make all essential findings of fact and, emphasizing the protractedness of the proceedings already, importune us to make a final disposition of the matter and not to remand again. Responding to the parties' entreaties, we have made every effort to fashion a distribution on the basis of a voluminous record which, while adequate to reach a roughly fair result, makes review of the facts arduous if not futile. Much of the case does, as the husband argues, turn on credibility, the blind spot of an appellate court; proper requests for findings of fact submitted pursuant to CPLR 4213(a) might have sharpened the reviewable issues and shed considerable light upon the weight of the evidence. Doubtless some of the problems encountered in reviewing the record, at least those relating to valuation, are due to the circumstance that the action was tried prior to the enactment of Domestic Relations Law § 236(B)(4)(b) (L.1986, c. 884, § 2, eff. 9/1/86) mandating an early ruling by the court on the date or dates to be used for the valuation of each asset.

Most factual issues were resolved by the trial court in favor of the husband on the ground that he and his witnesses were more credible than the wife and her witnesses. While we are prepared to defer to the trial court's findings of fact with respect to issues that turn on credibility, we do not accept, as the husband appears to suggest, that issues of credibility so pervade the record as to virtually preclude appellate review. We do not agree, for example, that valuation issues necessarily turn on such factors as the credentials and demeanor of the witnesses offering valuation testimony, and are thus effectively beyond the review of an appellate court (see, Capasso v. Capasso, 119 A.D.2d 268, 273, 506 N.Y.S.2d 686; County of Warren v. State of New York, 29 A.D.2d 717, 286 N.Y.S.2d 320; Lord v. State of New York, 48 N.Y.2d 711, 422 N.Y.S.2d 369, 397 N.E.2d 1178; but see, Wilbur v. Wilbur, 116 A.D.2d 953, 953-954, 498 N.Y.S.2d 525; see also, Cohen v. Hallmark Cards, Inc., 45 N.Y.2d 493, 498, 410 N.Y.S.2d 282, 382 N.E.2d 1145; Cohen and Karger, Powers of the New York Court of Appeals, § 112).

The trial court found total marital property of $4,254,492 out of which it awarded the wife $2,231,172. It might be supposed that the wife would not be dissatisfied with an award of more than half of the marital property, but her quarrel, of course, is not with her share of the distribution as such, but with the trial court's treatment of certain properties as separate and its low valuation of other properties treated as marital. According to the wife, the total value of the marital property is almost $19 million.

It would seem, therefore, at first blush, that valuation questions permeate the controversy. Actually, however, of the almost $19 million in marital property claimed by the wife, approximately $16 million, as valued by her, is made up of only four properties: the marital residence, a cooperative apartment located at 990 Fifth Avenue ($6 million); the business properties located in Long Island City ($4.6 million); the appreciation in the value of the husband's business, Nanco Contracting Corp. ($3.5 million); and the house and property located at 37 Exchange Place, Westhampton Beach, New York ($1.9 million). As to these, genuine valuation issues of a factual nature remain only with respect to Nanco and 37 Exchange Place, the dispute concerning the Long Island City properties having been resolved in our prior decision, and the dispute concerning the marital residence raising a question only of the time, not the amount, of valuation. Of the remaining $3 million of marital property seen by the wife, approximately $1.8 million, as valued by her, is made up of three properties, all in Quogue, New York, located at Beach Lane South of Dune Road and Beach Lane North of Dune Road ($1 million), and 80 Dune Road ($800,000). As to these, we find it unnecessary to assign values. The remaining assets, amounting to $1.2 million as valued by the wife, do not for the most part raise valuation issues.

Our distribution is made largely on the following premises: (1) that the trial court was correct in viewing the age and health of the parties, and their need to occupy the marital residence, as of negligible significance; (2) that Nanco was the only asset of any significant value brought into the marriage by either spouse; (3) that the wife's standard of living was at all times during this twelve-year marriage dependent on Nanco's success; (4) that the wife became gainfully employed outside of the home approximately two years prior to the commencement of the action and has a good earning potential; (5) that except for Nanco and other business-related properties, the equities warrant an equal distribution; (6) that it is economically desirable that the husband retain his business assets intact and free from any claim or interference by the wife; (7) that the wife would not be disappointed to gain, and the husband would not be disappointed to lose, properties which she considers to be of high value and he low; and (8) that because he accumulated much debt between the commencement of the action and the trial, the husband is in more need of cash than the wife.

We see total marital property of $15.63 million, not including the Quogue properties, and four categories of assets. The first category is the parties' personal residences. These are 990 Fifth Avenue ($6 million), the house and property at 37 Exchange Place, Westhampton Beach ($1.9 million), the condominium apartment at 539 Dune Road, Westhampton ($200,000), and the condominium apartment and cabana in Palm Beach, Florida ($250,000), totalling $8.35 million. We award the parties equal shares in these properties, and, except for the Palm Beach condominium and cabana, we value them as of the trial, June 1985. The second category of marital property is business assets. These are the appreciation in Nanco's value over the course of the marriage ($2 million), the properties located on Review and Railroad Avenues in Long Island City ($4,562,119), and the Hope Resources mortgage ($45,000), totalling $6.61 million. We value these as of January 1983, the commencement of the action, and award the wife a 20% share. The third category is real estate acquired for investment purposes, namely, the Quogue properties and the Schaeffer mortgage. These we do not assign monetary values, although we do find that 80 Dune Road is equivalent in value to the Beach Lane properties and the Schaeffer mortgage, and we distribute the former to the wife and the latter to the husband. The final category, miscellaneous items, consists of the household effects at 990 Fifth Avenue ($273,842), the Cy Twombly painting ($200,000), jewelry ($144,650), and the proceeds of the sale of the Dubuffet painting ($56,000), totaling $0.67 million. As to these, there is no dispute as to the values that should be assigned for purposes of the distribution, and we award the parties equal shares.

The total value of the residences ($8.35 million) and miscellaneous items ($0.47 million after subtracting the value of the Twombly painting for reasons to be discussed) amounts to $8.82 million; dividing by two, each party is credited with $4.41 million. The total value of the business assets is $6.61 million; awarding the wife 20% thereof, her share is $1.32 million. Thus, the wife's total share of the marital property, not including the Quogue properties and the Twombly painting, is $5.73 million. Against this, we credit the husband with $202,500 representing the wife's share of a personal bank loan outstanding in the amount of $405,000 as of the commencement of the action.

In satisfaction of this $5.53 million award to the wife, we distribute to her 37 Exchange Place ($1.9 million), 539 Dune Road ($200,000), the household effects of 990 Fifth Avenue as awarded by the trial court ($228,552),...