Capasso v. Capasso

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before FEIN; WALLACH
• Citation: Capasso v. Capasso, 506 N.Y.S.2d 686, 119 A.D.2d 268 (N.Y. App. Div. 1986)
• Decision Date: 02 October 1986
• Parties: Carl A. CAPASSO, Plaintiff-Respondent, v. Nancy CAPASSO, Defendant-Appellant.

Page 686

506 N.Y.S.2d 686

119 A.D.2d 268

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

Supreme Court, Appellate Division First Department.

Oct. 2, 1986.

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

Samuel G. Fredman, of counsel (Fink, Weinberger, Fredman, Berman & Lowell, P.C., New York City, attorneys), for plaintiff-respondent.

Before FEIN, J.P., and MILONAS, ROSENBERGER and WALLACH, JJ.

WALLACH, Justice.

Under Domestic Relations Law § 236(B)(5)(g), the court is required to state the reasons for its decision distributing property in a matrimonial action. We hold that in the absence of unusual circumstances, a reasoned distribution can only be made in light of the total value of the property subject to distribution. Since the distribution here was made without reference to such value, we find it necessary to reverse the judgment and remand for additional findings of fact. We also hold that 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).

The parties were married in March 1971, and had two children, born in 1972 and 1974. The economic cornerstone of the marriage was a construction business started by the husband virtually from scratch about three years before the parties were married, and held to be his separate property. Unless the husband is claiming that his fortune was made in real estate, it is obvious from the parties' lifestyle that his business was an outstanding success. In January 1983, the husband sued for divorce, and the trial came on in July 1985. The parties stipulated to liability and custody, leaving for trial only issues pertaining to property distribution. At the conclusion of the trial, which took 21 days over a period of four months, both sides submitted requests for findings that were to stand as the decision of the court. On December 10, 1985, the court signed the husband's requests exactly as submitted, together with a judgment prepared in conformity therewith; the wife's requests were rejected in toto. The wife appeals, arguing that she was not awarded an equitable share of the marital property.

The trial court awarded the wife property having a total value of approximately $2 million. She contends that this was not enough measured against marital property of between $10 million and $19 million, depending upon whether certain valuations made by the trial court are correct, and upon whether certain assets found to be the husband's separate property were properly so classified. The husband does not attempt to put a total value on the marital property, though his argument does suggest that most of the marriage's distributable wealth consisted of residential real estate worth approximately $4.6 million as of the time of trial, of which the wife received $1.7 million, or 36.5%. If true, this would be mere coincidence. The trial court's decision contains no indication that, in distributing the marital property, there was an intention to give the wife something more than one-third of the value of the residential real estate.

Absent unusual circumstances making valuation unnecessary or unfeasible (see, e.g., Sementilli v. Sementilli, 102 A.D.2d 78, 477 N.Y.S.2d 626), we agree with the assumption underlying the wife's argument--and to a lesser extent the husband's too--that consideration of the total value of the marital property is essential to the fashioning of a plan of distribution, for it is this total, after all, which has to be apportioned. Here, no finding was made as to the total value of the marital property, and such valuations of individual assets as the trial court did make do not appear to have had any effect on the distribution. What the trial court did was to identify and value the parties' various assets, rule each to be separate or marital, and, with respect to the latter, decide in almost every instance that the wife was not entitled to a share upon the most frequently cited ground that she made no "consequential contribution" towards its acquisition. Thus, irrespective of the value assigned to a particular asset, the wife, not having contributed towards its acquisition, was denied a share.

Attempting to justify a result reached without reference to the total value of the marital property and the parties' respective interests therein, the husband reviews the circumstances of the case and of the parties as adduced at the trial, and argues that an award amounting to some $2 million was not only fair, but generous. It is, he claims, more than enough to maintain her in comfortable circumstances for the rest of her life. Perhaps so, but, given a record that does not permit us to make our own findings on all essential issues of fact, we cannot approve a result, even a seemingly fair result, fortuitous reached without regard for the essential facts. We cannot assume, as the husband would have us do, that the court tacitly determined the total dollar value of the wife's fair share in the total marital property to be $2 million, and then distributed the property in accordance with a plan formulated to give effect to that determination.

Given its findings, the trial court does indeed appear to have been generous to the wife. She was expressly found not to have made any direct or indirect contributions to the financial success of the marriage, and none of the other statutory factors the court must consider under Domestic Relations Law § 236(B)(5)(d), discussed seriatim in the court's decision, was seen as operating in her favor. The major item awarded to her was a distributable award of $1.5 million, representing a one-half share in the parties' marital residence (a Fifth Avenue cooperative duplex apartment recently featured, according to the wife, in a prominent journal of architecture) valued as of the commencement of the action. No reasons are given why this asset was distributed in equal shares, let alone that it was done pursuant to a plan to give the wife $2 million, or, for that matter, a 36.5% share of the residential property. A second item awarded to the wife was a condominium apartment located in West Hampton, New York, valued at $200,000 as of the commencement of the action, and given to her apparently because, during the pendency of the action, while subject to a court order directing shared occupancy of this property on an alternate monthly basis, she rendered it useless to the husband by "stripping" and "denuding" it of its furniture each time she moved out. Upon these facts, the court concluded "that were the [husband] to be awarded an equitable distribution of said apartment or a distributable award in lieu thereof, the [wife] would render such an award a nullity." It thus appears that the wife was given this property as a reward for contemptuous conduct. The wife was also given a share of the furnishings in the Manhattan apartment, but no reasons were given why these were divided in the manner in which they were, thus leaving it open to the wife to argue, as she does on appeal, that the more cherished and valuable items were all given to the husband. Finally, the wife was credited with several other items, including bank and brokerage accounts totaling $130,000, for no apparent reason other than her control over them as of the commencement of the action. So too, the husband was credited with the bank and brokerage accounts that were under his control, though here no findings were made as to the balances in the accounts. Perhaps the court determined that the self-help division by the parties of their liquid assets was for the most part a wash, but this is only speculation.

Domestic Relations Law § 236(B)(5)(g) requires the trial court to set forth the factors it considers and the reasons for its decision. The requirement is mandatory and cannot be waived. An insufficient explanation for the court's distribution of property requires reversal of the judgment and remand for further consideration (Levine v. Levine, 102 A.D.2d 799, 477 N.Y.S.2d 299; Hornbeck v. Hornbeck, 99 A.D.2d 851, 472 N.Y.S.2d 456; Wilson v. Wilson, 101 A.D.2d 536, 538-539, 476 N.Y.S.2d 120).

As limited by her main brief, the wife challenges the trial court's findings on valuation with respect to the Long Island City commercial properties; the house at 37 Exchange Place, West Hampton Beach, New York; the Quogue property located on Beach Lane and South Dune Road and acquired on April 5, 1982; the apartment located on Fifth Avenue, New York; and the appreciation in the value of the husband's business.

With respect to the Long Island City commercial properties, we reverse the trial court's valuation of $268,000 as of the commencement of the action, and make our own finding that their value as of the commencement of the action was $4,462,119. We do this on the basis of the husband's admissions. On December 16, 1982, in connection with a loan application, the husband represented to a bank that the Long Island City properties had a "recent appraised value" of $4,920,000 as of August 31, 1982, and were encumbered with mortgages totaling $500,000, for a net value of $4,420,000. And, in an affidavit sworn to May 17, 1983, in connection with a motion by the wife for temporary maintenance, the husband, while not attesting to the fair market value of these properties, did represent that the mortgage balances had been reduced to $457,881 as of December 31, 1982. Assuming in the husband's favor, as the wife does on appeal, that the properties did not increase in value between September 1982 and January 1983, the net value of these properties as of year-end 1982, just prior to the commencement of the action, was admitted by the husband to be $4,462,119. We find this to be a fact absent an explanation in the record why the husband should not be bound by these statements. His argument on appeal attacks only...