Cohen v. Cohen

• Decision Date: 09 October 1984
• Citation: 104 A.D.2d 841,480 N.Y.S.2d 358
• Parties: Janet COHEN, Respondent-Appellant, v. Richard COHEN, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 358

480 N.Y.S.2d 358

104 A.D.2d 841

Janet COHEN, Respondent-Appellant, v. Richard COHEN, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

Oct. 9, 1984.

Harold H. Newman, Scarsdale, for appellant-respondent.

Martin J. Rosen, P.C., White Plains (Emanuel Thebner, White Plains, of counsel), for respondent-appellant.

Before MOLLEN, P.J., and GIBBONS, WEINSTEIN and RUBIN, JJ.

MEMORANDUM BY THE COURT.

In a matrimonial action, the defendant husband appeals, as limited by his notice of appeal and brief, from so much of a supplemental judgment of the Supreme Court, Westchester County, entered October 22, 1982, as (1) ordered him to pay to the plaintiff wife a net distributive award of $54,666.04, representing, in part, a calculation of her share of his partnership interest in the accounting firm of Peat, Marwick, Mitchell and Co., (2) awarded plaintiff exclusive possession of the marital residence until further order of the court, (3) ordered him to pay to plaintiff the unallocated sum of $750 per week, representing both maintenance and child support, and (4) denied his posttrial motion to dismiss a plenary action brought by the plaintiff to recover reimbursement for expenditures on necessaries. The plaintiff wife cross-appeals, as limited by her notice of appeal and brief, from so much of the same supplemental judgment as (1) awarded her only a net distributive award of $54,666.04 including her share of defendant's partnership interest in Peat, Marwick, Mitchell and Co., (2) declined to consider defendant's pension plan as marital property, (3) awarded her only the unallocated sum of $750 per week for both maintenance and child support, (4) awarded her only $5,000 as counsel fees and (5) denied her application to recover certain disbursements and expert witness fees.

Supplemental judgment modified, on the law and the facts, (1) by striking therefrom the seventh, eighth, seventeenth and eighteenth decretal paragraphs thereof, (2) by deleting the words "until further Order of the Court" from fifth decretal paragraph thereof and by substituting therefor the words "until sold in accordance herewith", (3) by deleting the sixth decretal paragraph thereof and substituting therefor a provision directing the sale of the marital residence, located in Scarsdale, New York, with the net proceeds of the sale of the residence and the household effects located therein to be divided equally between plaintiff and defendant, and (4) by adding to the twelfth decretal paragraph thereof a provision that defendant may also seek modification of the maintenance award after the sale of the marital premises, if justified, based upon the money plaintiff actually received from that sale. As so modified, supplemental judgment affirmed insofar as appealed from, without costs or disbursements, and matter remitted to the Supreme Court, Westchester County, for further proceedings in accordance herewith. In the interim, defendant is directed to continue to pay the sum of $750 per week to the plaintiff for maintenance and child support. The sale of the marital residence is directed to be held within one year of the date of the order to be made hereon. The findings of fact made by Special Term are affirmed, except where specifically stated otherwise herein.

In accordance with this court's decision in Litman v. Litman, 93 A.D.2d 695, 463 N.Y.S.2d 24, affd. 61 N.Y.2d 918, 474 N.Y.S.2d 718, 463 N.E.2d 34, Special Term correctly determined that defendant's partnership interest in the accounting firm of Peat, Marwick, Mitchell and Co. (hereinafter PMM) constituted marital property and was, thus, a proper subject for a distributive award pursuant to section 236 (part B, subd. 5, par. e) of the Domestic Relations Law (see, also, Kaye v. Kaye, 102 A.D.2d 682, 478 N.Y.S.2d 324 Reiner v. Reiner, 100 A.D.2d 872, 875, 474 N.Y.S.2d 538). Defendant was employed by PMM at the time of his marriage to plaintiff in June, 1970. He became a partner in that firm in July, 1975, during the course of the parties' marriage. Therefore, defendant's partnership interest in PMM constitutes marital property "acquired by either or both spouses during the marriage", which is subject to equitable distribution (see Domestic Relations Law, § 236, part B, subd. 1, par. c).

We conclude, based upon the evidence presented at the hearing, that Special Term reached a fair and reasonable result concerning both the valuation of defendant's partnership interest in PMM, and the equitable distribution thereof. With regard to the valuation, in the net distributive award that defendant was directed to pay to plaintiff, Special Term included the sum of $56,000, representing 50% of $112,000, or the total estimated value of the 560 units assigned to defendant by the PMM partnership during the period from June 30, 1979 until March 31, 1982. The calculation of $112,000 for the total value of defendant's units, which are comparable to shares of stock and which determine his share of the profits of the accounting firm for a given fiscal year, was arrived at by using defendant's own estimate that each of the units was worth $200 in 1981, the year in which the divorce action was commenced.

We, likewise, concur with the grant of a distributive award to plaintiff representing one half of the value of his partnership interest in PMM. We note, however, that Special Term's conclusory statement that "the parties were equal economic partners during the marriage" does not satisfy the requirement contained in the Domestic Relations Law (§ 236, part B, subd. 5, par. g) that the court must set forth the statutory factors it considered and the reasons for its determination concerning the equitable distribution of the marital property (see Brundage v. Brundage, 100 A.D.2d 887, 474 N.Y.S.2d 546; D'Amato v. D'Amato, 96 A.D.2d 849, 466 N.Y.S.2d 23; Nielsen v. Nielsen, 91 A.D.2d 1016, 457 N.Y.S.2d 888). Nevertheless, the record of the hearing and the decision of Special Term contains sufficient evidence to affirm the result with respect to the equitable distribution of defendant's partnership interest in PMM, based upon our analysis of the circumstances of the parties in accordance with the factors enumerated in section 236 (part B, subd. 5, par. d) of the Domestic Relations Law (see Kobylack v. Kobylack, 62 N.Y.2d 399, 403, 477 N.Y.S.2d 109, 465 N.E.2d 829, revg. 96 A.D.2d 831, 465 N.Y.S.2d 581; Duffy v. Duffy, 94 A.D.2d 711, 712, 462 N.Y.S.2d 240). We find it to be particularly significant that plaintiff contributed to the marriage, both as a wage earner and as a homemaker for defendant and the parties' son Stephen (see Domestic Relations Law, § 236, part B, subd. 5, par. d, cl. ). Plaintiff worked as a teacher with the New York City public school system for the duration of the marriage, with the exception of several weeks in May and June, 1978, when Stephen was born, and the period after February, 1980, when she went on a leave of absence for medical reasons.

The parties concede that further proceedings will be...