Cooper v. Cooper, 2009-11283
| Decision Date | 10 May 2011 |
| Docket Number | 2010-00939,Index No. 5284/03,2010-01051,2009-11283 |
| Court | New York Supreme Court — Appellate Division |
| Parties | Maureen Cooper, appellant-respondent, v. Chris Cooper, respondent-appellant. |
PETER B. SKELOS, J.P.
JOHN M. LEVENTHAL
ARIEL E. BELEN
Baker, McEvoy, Morrissey & Moskovits, P.C., New York, N.Y. (Stacy R. Seldin of counsel), for appellants.
Bamundo, Zwal & Schermerhorn, LLP, New York, N.Y. (Ben Bartolotta of counsel), for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from (1) stated portions of an order of the Supreme Court, Suffolk County (Kent, J.), dated October 20, 2009, which, inter alia, denied her motion for a money judgment in the sum of $64,983.24, representing arrears allegedly due pursuant to an order of the same court dated June 10, 2003, and (2) stated portions of an order of the same court dated December 15, 2009, which, among other things, denied that branch of her motion which was pursuant to CPLR 4404(b) to set aside so much of the court's decision dated September 15, 2009, as found that the plaintiff was responsible for one-half of the federal tax liability of $1,371,744, incurred as a result of the defendant former husband's filing of amended income tax returns for the tax years 1999, 2000, 2001, 2002, and 2003, the defendant appeals, as limited by his brief, from stated portions of a judgment of the same court entered December 23, 2009, which, inter alia, after a nonjury trial, (a) awarded the plaintiff post-divorce maintenance in the sum of $5,000 per month for a period of four years, (b) failed to find the plaintiff responsible for one-half of the interest and penalties and New York State tax liability incurred as a result of his filing of amended income tax returns for the tax years 1999, 2000, 2001, 2002, and 2003, and (c) awarded the plaintiff interest of 9% per annum on installment payments of the plaintiff's distributive awards, and the plaintiff cross-appeals, as limited by her brief, from stated portions of the same judgment which, inter alia, (a) awarded her child support in the sum of only $1,192.31 per week, based upon a finding that the defendant's "CSSA income is $250,000 per year," (b) awarded her post-divorce maintenance in the sum of only $5,000 per month for a period of four years, (c), upon the order dated October 20, 2009, denied her application for an award of $64,983.24, representing arrears allegedly due pursuant to an order of the same court dated June 10, 2003, (d) determined that the value of the defendant's business for purposes of equitable distribution was $1,625,000, (e) determined that she was responsible for one-half of the federal tax liability of $1,371,744, incurred as a result of the defendant's filing of amended income tax returns for the tax years 1999, 2000, 2001, 2002, and 2003, (f) directed the defendant to maintain a life insurance policy for the benefit of the plaintiff and the children in the value of only $500,000, (g) awarded her counsel fees in the sum of only $50,000, and (h) failed to award her additional expert fees.
ORDERED that the appeals from the orders are dismissed, without costs ordisbursements; and it is further,
ORDERED that the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The appeals from the intermediate orders must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 NY2d 241, 248). The issues raised on the appeal from the orders are brought up for review and have been considered on the cross appeal from the judgment (see CPLR 5501[a][1]).
The parties were married on April 8, 1984, and have two children, born in 1989, and 1992, respectively. This action was commenced in March 2003.
Prior to trial, the plaintiff moved for an order of preclusion based upon the defendant's obstructive behavior during discovery. At oral argument of the preclusion motion, the Referee appointed to supervise discovery stated that since the defendant retained new counsel, Edwards and Edwards, "compliance has been absolute," and the plaintiff's attorney acknowledged that "most" of "the things [he] asked for" had been provided, although subsequent to the date set by the Referee and subsequent to "the acts of my office" in moving for preclusion. In an order dated February 1, 2008, the Supreme Court denied the motion on the ground that, after the defendant hired new counsel, he fully complied with discovery in response to the motion for an order of preclusion. That determination was a provident exercise of discretion (see Greene v Mullen, 70 AD3d 996, 997; see generally Gibbs v St. Barnabas Hosp., 16 NY3d 74).
The defendant is the founder and owner of Triangle Electronics Group, Inc. (hereinafter Triangle), which distributes electronic components. A primary issue at trial and on appeal is the equitable distribution of the defendant's 100% interest in Triangle, which the Supreme Court determined was worth $1,625,000 on the date of commencement of the action. In so doing, the Supreme Court credited the defendant's expert.
"The determination of the fact finder as to the value of a business, if within the range of the testimony presented, will be accorded deference on appeal if it rests primarily on the credibility of expert witnesses and their valuation techniques" (Wasserman v Wasserman, 66 AD3d 880, 882). The testimony of the defendant's expert, which was supported by competent evidence in the record and a written report admitted into evidence, was properly...
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