Carter v. Fairchild-Carter, 533414

• Court: New York Supreme Court Appellate Division
• Citation: 199 A.D.3d 1291,159 N.Y.S.3d 182
• Docket Number: 533414
• Parties: James D. CARTER, Appellant, v. Tina L. FAIRCHILD–CARTER, Respondent.
• Decision Date: 24 November 2021

199 A.D.3d 1291
159 N.Y.S.3d 182

James D. CARTER, Appellant,
v.
Tina L. FAIRCHILD–CARTER, Respondent.

533414

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: October 12, 2021
Decided and Entered: November 24, 2021

159 N.Y.S.3d 183

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

159 N.Y.S.3d 184

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"

159 N.Y.S.3d 185

( Domestic Relations Law §...