Daniel v. Friedman

• Court: New York Supreme Court — Appellate Division
• Citation: Daniel v. Friedman, 22 AD3d 707, 803 N.Y.S.2d 129, 2005 NY Slip Op 7920 (N.Y. App. Div. 2005)
• Decision Date: 24 October 2005
• Docket Number: 2004-03597.
• Parties: AUDREY DANIEL, Respondent, v. DAVID FRIEDMAN, Appellant.

22 A.D.3d 707

803 N.Y.S.2d 129

2005 NY Slip Op 07920

AUDREY DANIEL, Respondent, v. DAVID FRIEDMAN, Appellant.

2004-03597.

Appellate Division of the Supreme Court of the State of New York, Second Department.

October 24, 2005.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Westchester County (Donovan, J.), entered April 6, 2004, which, after a nonjury trial, inter alia, (1) directed him to pay maintenance to the plaintiff in the sum of $2,500 per month for a period of three years, (2) directed him to pay child support to the plaintiff in the sum of $4,000 per month until the emancipation of the parties' first child and, upon emancipation of the parties' first child, to pay child support in the sum of $3,317.08 per month until the emancipation of the parties' second child, (3) valued and distributed the parties marital property, and (4) awarded counsel fees to the plaintiff in the sum of $165,000.

Ordered that the judgment is modified, on the facts and as a matter of discretion, by deleting the provision thereof awarding counsel fees to the plaintiff in the sum of $165,000 and substituting therefor a provision awarding counsel fees to the plaintiff in the sum of $70,089.63; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

The trial court has broad discretion in selecting dates for the valuation of marital assets (see Kirshenbaum v. Kirshenbaum, 203 AD2d 534, 535 [1994]; Wegman v. Wegman, 123 AD2d 220, 233 [1986]). "Courts have discretion to value `active' assets such as a professional practice on the commencement date [of the action], while `passive' assets such as securities, which could change in value suddenly based on market fluctuations, may be valued at the date of trial" but such formulations should be treated as helpful guideposts and not immutable rules (Grunfeld v Grunfeld, 94 NY2d 696, 707 [2000]; see Domestic Relations Law § 236 [B] [4] [b]; McSparron v. McSparron, 87 NY2d 275, 288 [1995]). Although an economic downturn between the date of commencement of the action and the date of trial had an effect upon the value of the defendant's business, the evidence at trial demonstrated that the business had rebounded significantly and that there were signs of potential positive growth for the future, despite the defendant's contentions to the contrary. Accordingly, the trial court's...