Carter v. Fairchild-Carter

Decision Date24 November 2021
Docket Number533414
Citation199 A.D.3d 1291,159 N.Y.S.3d 182
Parties James D. CARTER, Appellant, v. Tina L. FAIRCHILD–CARTER, Respondent.
CourtNew York Supreme Court — Appellate Division

Assaf & Siegal, PLLC, Albany (Michael D. Assaf of counsel), for appellant.

Law Offices of MaryAnne Bukolt–Ryder, PLLC, Plattsburgh (MaryAnne Bukolt–Ryder of counsel), for respondent.

Before: Garry, P.J., Lynch, Aarons, Pritzker and Reynolds Fitzgerald, JJ.

MEMORANDUM AND ORDER

Pritzker, J.

Appeal from an order of the Supreme Court (Ellis, J.), entered May 14, 2021 in Clinton County, which, among other things, granted defendant's motion for, among other things, temporary maintenance.

This is the third interlocutory appeal in this action (Ditech Financial, LLC v. Khan , 187 A.D.3d 1360, 139 N.Y.S.3d 293 [2020]; 159 A.D.3d 1315, 73 N.Y.S.3d 649 [2018] ). Following the most recent appeal to this Court, defendant (hereinafter the wife) moved for, among other relief, temporary spousal maintenance and certain fees. Then, in December 2020, the wife filed a supplemental motion seeking temporary maintenance "based upon her updated income" and, again, certain fees. Plaintiff (hereinafter the husband) then moved, in January 2021, for the pretrial classification of certain assets and to set the valuation date of his business assets as the date of trial. In May 2021, the wife moved to extend discovery and adjourn the pending trial. Following submissions by the parties, Supreme Court issued a single order resolving all of the preceding motions. First, after imputing income to the parties, the court ordered the husband to pay the wife $56,439.04 per year in temporary maintenance, as well as $83,808.10 in arrears. The court further ordered the husband to pay certain of the wife's counsel, appraisal and expert fees. The court also adjusted the discovery schedule "to give the parties adequate time to make their cases," and, in line with that rescheduling, the court denied, without prejudice, the husband's cross motion to classify, pretrial, certain assets as separate property and to set the valuation date of his business assets as the date of trial. The husband appeals.1

We turn first to the husband's contention that Supreme Court erred in denying his motion to classify certain assets pretrial. The husband demonstrated – and the wife does not contest – that any real property purchased and business interests acquired by the husband occurred prior to the parties’ marriage, and, thus, is presumed to be separate property ( Domestic Relations Law § 236[B][1][d][1] ). The husband also asserts that only one of the parcels was improved during the parties’ marriage. Therefore, the husband concludes, any appreciation in value was the result of only passive market forces. The wife, however, retorts that she "was greatly supportive" of the husband both financially and in other ways during the marriage which should be accounted for in the distribution of assets. Although, generally, this Court "encourage[s] a pretrial classification of assets whenever possible" ( Antenucci v. Antenucci, 193 A.D.2d 948, 949, 597 N.Y.S.2d 805 [1993] ), the husband did not provide any information or documentation related to the current value of the properties or businesses, nor any improvements made thereto beyond his own self-serving statements in his affidavits. Therefore, Supreme Court did not abuse its discretion in denying the husband's cross motion to classify assets as separate property pretrial as "additional discovery [will] place[ ] the motion court in a far better position to determine [this] legally dispositive issue" ( Gitman v. Martinez, 169 A.D.3d 1283, 1284–1285, 95 N.Y.S.3d 427 [2019] [internal quotation marks and citations omitted]) – namely, what, if any, appreciation in the value of the real property can be considered marital property (see Pace v. Pace, 187 A.D.3d 1443, 1445, 134 N.Y.S.3d 540 [2020] ; Allen v. Allen, 179 A.D.3d 1318, 1319–1320, 117 N.Y.S.3d 736 [2020] ).

Next, the husband asserts that Supreme Court should have, in its discretion, set the valuation date of his businesses as the date of trial rather than the date of the commencement of the action. "As soon as practicable after a matrimonial action has been commenced, the [trial] court shall set the date or dates the parties shall use for the valuation of each asset" ( Domestic Relations Law § 236[B][4][b] ). The trial court has broad discretion in selecting valuation dates and may select any date between the date of commencement of the action and the date of trial (see Pace v. Pace, 187 A.D.3d at 1446, 134 N.Y.S.3d 540 ; Carvalho v. Carvalho, 140 A.D.3d 1544, 1549, 34 N.Y.S.3d 535 [2016] ). Notably, "while not dispositive, the fact that the businesses constitute ‘active’ assets weigh in favor of valuing them as of the date of commencement" ( Rich–Wolfe v. Wolfe, 83 A.D.3d 1359, 1360, 922 N.Y.S.2d 593 [2011] ; see Bean v. Bean, 53 A.D.3d 718, 720, 860 N.Y.S.2d 683 [2008] ).

In support of his cross motion, the husband cites, among other things, the passage of time since commencement of the action, his advancing age and the economic implications of the COVID–19 pandemic as bases for Supreme Court to set the valuation date as the date of trial rather than the commencement of the divorce action. In particular, the husband asserts that he would have "earned nothing" in 2020 if it were not for "the payroll protection program and disaster relief loans" and that this will be true for 2021 as well. Although the court must set forth a valuation date between date of commencement and date of trial, we discern no abuse of discretion with Supreme Court's determination that, at this juncture, setting such a date was not "practicable" (compare Pace v. Pace, 187 A.D.3d at 1446–1447, 134 N.Y.S.3d 540 ; Carvalho v. Carvalho, 140 A.D.3d at 1549, 34 N.Y.S.3d 535 ; Williams v. Williams, 99 A.D.3d 1094, 1096, 952 N.Y.S.2d 662 [2012] ), particularly given that the proof before the court was limited to the husband's affidavits, tax documents and financial submissions, which the court found "suspect."2

Finally, the husband claims that Supreme Court erred in imputing income to both him and the wife and calculating temporary maintenance and fees based upon the imputed incomes. "[P]endente lite awards should not ordinarily be modified on appeal unless the ordered payments prevent the payor spouse from meeting his or her own financial obligations or where justice otherwise requires" ( Ingersoll v. Ingersoll, 86 A.D.3d 684, 685, 927 N.Y.S.2d 420 [2011] [internal quotation marks and citation omitted]). Thus, this Court has been clear that "the appropriate remedy for an allegedly inequitable temporary award is a speedy trial of the action" ( Antenucci v. Antenucci, 193 A.D.2d at 950, 597 N.Y.S.2d 805 ; see Rouis v. Rouis, 156 A.D.3d 1198, 1199, 67 N.Y.S.3d 680 [2017] ). Nevertheless, when calculating temporary maintenance, "[i]ncome may be imputed based on a party's earning capacity, as long as the court articulates the basis for imputation and the record evidence supports the calculations" ( Johnson v. Johnson, 172 A.D.3d 1654, 1656, 101 N.Y.S.3d 497 [2019] [internal quotation marks and citation omitted]; see Matter of Henry v. Bell, 185 A.D.3d 1168, 1170, 128 N.Y.S.3d 77 [2020] ).

In support of her motion seeking temporary maintenance and certain fees, the wife provided her 2019 W–2, which set forth that she had made $88,736.91 in wages that year, as well as a letter from her former employer indicating that she had been "released" in November 2019. She also provided an overview of the unemployment benefits that she had received since, demonstrating that she...

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4 cases
  • Spiegel v. Spiegel
    • United States
    • New York Supreme Court Appellate Division
    • June 9, 2022
    ...an appropriate maintenance award (see Cummins v. Lune, 151 A.D.3d at 1260–1261, 56 N.Y.S.3d 631 ; see also Carter v. Fairchild–Carter, 199 A.D.3d 1291, 1295, 159 N.Y.S.3d 182 [2021] ; Kaufman v. Kaufman, 131 A.D.3d 939, 944, 17 N.Y.S.3d 34 [2015] ). Garry, P.J., Lynch and Colangelo, JJ., co......
  • Spiegel v. Spiegel
    • United States
    • New York Supreme Court Appellate Division
    • June 9, 2022
    ...Court to calculate an appropriate maintenance award (see Cummins v Lune, 151 A.D.3d at 1260-1261; see also Carter v Fairchild-Carter, 199 A.D.3d 1291, 1295 [2021]; Kaufman v Kaufman, 131 A.D.3d 939, 944 [2015]). Garry, P.J., Lynch and Colangelo, JJ., concur. ORDERED that the appeal from the......
  • Belmonte v. Belmonte
    • United States
    • New York Supreme Court Appellate Division
    • December 1, 2022
    ...— namely, what, if any, appreciation in the value of the real property can be considered marital property" ( Carter v. Fairchild–Carter, 199 A.D.3d 1291, 1293, 159 N.Y.S.3d 182 [3d Dept. 2021] [internal quotation marks, brackets and citations omitted]; see Ramadan v. Ramadan, 195 A.D.3d 117......
  • Belmonte v. Belmonte
    • United States
    • New York Supreme Court Appellate Division
    • December 1, 2022
    ...- namely, what, if any, appreciation in the value of the real property can be considered marital property" (Carter v Fairchild-Carter, 199 A.D.3d 1291, 1293 [3d Dept 2021] [internal quotation marks, brackets and citations omitted]; see Ramadan v Ramadan, 195 A.D.3d 1174, 1177 [3d Dept 2021]......

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