Davis v. Davis

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before KUPFERMAN
• Citation: Davis v. Davis, 513 N.Y.S.2d 405, 128 A.D.2d 470 (N.Y. App. Div. 1987)
• Decision Date: 26 March 1987
• Parties: Francoise DAVIS, Plaintiff-Appellant-Respondent, v. Joseph E. DAVIS, Defendant-Respondent-Appellant.

Page 405

513 N.Y.S.2d 405

128 A.D.2d 470

Francoise DAVIS, Plaintiff-Appellant-Respondent, v. Joseph E. DAVIS, Defendant-Respondent-Appellant.

Supreme Court, Appellate Division First Department.

March 26, 1987.

E. Rubin, New York City, for plaintiff.

E.C. Kozminsky, New York City, for defendant.

Before KUPFERMAN, J.P., and ROSS, KASSAL, ROSENBERGER and ELLERIN, JJ.

MEMORANDUM DECISION.

Judgment, Supreme Court, New York County, (Beatrice Shainswit, J.) entered March 27, 1986, which ordered a distribution of marital property providing, inter alia, that plaintiff-appellant Francoise Davis pay defendant-respondent Joseph E. Davis $125,000 as his share of the value of the former marital cooperative apartment held solely in the name of plaintiff and $5,200 as his share of the value of a studio apartment in Versailles, France, with defendant transferring his interest in the studio apartment to plaintiff; directed that defendant pay plaintiff $50,000 as her share of the value of the Warwick, New York vacation home, with plaintiff transferring her interest in the home to defendant; directed that defendant shall retain his one half interests in two properties located in the Bahamas, with plaintiff entitled to one-half of her share of the net proceeds in the event defendant sells such properties; denied plaintiff any share of the value of defendant's leasehold interest in apartment 32H, his cooperative apartment, or his professional corporation; granted defendant's motion for a downward modification of child support to the extent of reducing his obligation for the payment of child support to $75 per week plus 75% of private school tuition, retroactive to October 11, 1984, the date of the submission of such motion; and awarded counsel fees of $15,000 to plaintiff, modified, on the law and the facts, and in the exercise of discretion, the fourteenth decretal paragraph of the judgment vacated, and, in lieu thereof, defendant is directed to pay plaintiff $10,250 representing her equitable interest in the Bahamian properties within twenty days of service upon him of a copy of the order entered herewith and the seventeenth and eighteenth decretal paragraphs are modified to increase the award of child support from $75 to $150 per week, and, as modified, otherwise affirmed, without costs.

In 1965, the plaintiff was twenty-one years old. A French native, she interrupted her college education in France to come to New York to marry the defendant, Joseph Davis. Defendant was then thirty-four years old, a urologist with a five-year old private practice in New York City. In 1967, they moved into an eighth floor apartment in the building located at 320 West End Avenue, which they occupied pursuant to a professional lease in defendant's name. The wife taught French part-time on an intermittent basis until the birth of their son, Jan-Phillippe, in 1969. On July 12, 1976, the parties agreed to separate when the wife told the husband that she had met a general contractor, with whom she wished to have a relationship, and the husband in turn told her that he was having an affair with his secretary.

In 1981, the wife commenced this action for divorce on the ground of cruel and inhuman treatment. The delay in commencing the action resulted in large measure from litigation commenced against the husband by his first wife, who, in 1977, seized his interest in the Warwick, New York vacation home to satisfy a judgment for child support arrearages. Settlement negotiations between plaintiff and defendant to dissolve their marriage apparently faltered over the issue of the disposition of the marital apartment, which had undergone cooperative conversion in 1977 and had thereafter enjoyed a tremendous appreciation in value. On October 28, 1982, Justice Hortense Gabel granted the wife pendente lite maintenance of $150 per week and child support for Jan-Phillippe of $250 per week. The wife was thereafter compelled to seek enforcement of the pendente lite order. She was successful and a cross motion by the husband for downward modification of his support obligations was denied. A second motion by the husband for the same relief was referred to the trial court. The trial was held before Justice Shainswit on May 30, June 21, and June 24, 1985. On May 31, 1985, the court granted a joint divorce and awarded custody of Jan-Phillippe, then aged 16, to the wife and required that she consult the husband on all major decisions concerning the child. The wife waived any claim for permanent maintenance. The issues at trial and on this appeal concern equitable distribution of a vacation home and adjoining land in Warwick, New York, the former marital apartment, a studio apartment in Versailles, France, half interests in two parcels of property in the Bahamas and the husband's professional practice, the husband's pension and Keogh plans, his former leasehold interest in apartment 32H and his cooperative apartment 36J, both in the building located at One Lincoln Plaza, and child support. Only two substantial assets of the parties are not in dispute--a cello purchased by the husband for the wife, which is to be sold and the net proceeds divided equally, and the husband's share in the estate of his mother, who died in 1984, worth approximately, $235,000, which is his separate property.

As found by the trial court, the evidence at trial established, in addition to the foregoing, the following facts with respect to each item of property and the income of the parties. The items of property and the income of the parties are discussed, seriatim.

West End Avenue Apartment

On July 7, 1977, almost one year after the parties had separated, the wife purchased the marital apartment for $12,000 under an eviction cooperative conversion plan. She made the $3,000 downpayment and, at her request, the husband co-signed and guaranteed a purchase money mortgage for $9,000. According to the husband, title was taken solely in plaintiff's name in order to shield it during the ongoing litigation with his first wife. In 1978, the plaintiff's paramour moved in with plaintiff and thereafter assisted her in making certain improvements in the apartment which allegedly were worth between $100,000 and $125,000. However, plaintiff only produced bills and receipts for expenses, aside from those for painting, totalling approximately $7,000. Based on a 1984 appraisal, the parties stipulated that the fair market value of the apartment was $375,000.

Warwick, New York Vacation Home

In 1969, the parties purchased a vacation home and adjoining acreage in both their names for $40,000, of which $12,500 is outstanding on the mortgage. Since 1979, the husband and his secretary have visited the property regularly. The wife has no interest in using it. The husband borrowed $40,000 to repair the premises, of which $15,000 is outstanding. He testified that additional work costing $15,000 is necessary. In 1984, the property was appraised for $75,000, and the husband carries insurance of $120,000 on it.

Foreign Realty

In 1969, the husband also purchased one-half interests in two parcels of real property in the Bahamas, for approximately $20,500. There is apparently no market for the property. Subsequently, he bought a studio apartment in Versailles, France for $5,200 for his wife, whose parents reside nearby in Paris. The apartment is now being rented. French law prohibits removal from France of either the rental income or the sales proceeds of the apartment.

Income

As to income, the wife's paramour apparently supports her in the style to which she had become accustomed. The husband receives his income from his professional corporation, which employs a secretary, another physician, and a nurse. In 1966, he established a Keogh retirement plan and, in 1971, he established a joint pension plan for himself and the other employees of the professional corporation. Defendant testified that he had a vested eighty percent interest in the pension plan and, when this action was commenced, his account had a balance of $20,000. Defendant asserted, however, that by the time of trial the plan contained $60,000 to $70,000, but that he had borrowed approximately $32,000 against it. He testified that his income between March 1984 and March 1985 was $235,000, but claimed that his income had declined sharply since the summer of 1984 as a result of changes in Medicare regulations and his loss of a position on a hospital staff. He further indicated that since then he has borrowed in excess of $45,000, not including loans from his sister, the executrix of the estate of their deceased mother, the $20,000 taken from his pension plan, and credit card debt. His alimony obligations to his first wife total in excess of $9,700 annually in addition to a lump sum payment of $12,000 which was due in October 1985. The husband allegedly contemplates future employment in the public sector, at an annual salary of $80,000, which he claims to be what he actually earned in 1984.

Trial Term excluded evidence offered by the wife seeking to demonstrate that the actual income of the husband exceeded that reported on his personal and corporate tax returns. Plaintiff then did not offer expert testimony which she had planned to present to establish the value of the professional corporation based upon the excess earnings method, asserting that the court had precluded her from laying the proper foundation. See, Nehorayoff v. Nehorayoff, 108 Misc.2d 311, 437 N.Y.S.2d 584 (Sup.Ct., Nassau County, 1981).

In its decision, Trial Term quoted the guidelines set forth in Section 236 B(5) of the Domestic Relations Law (Equitable Distribution Law) and indicated that it had considered all of the statutory factors in its findings of fact and conclusions of law. Without stating reasons or discussing how the general principles applied to the facts, the court distributed the marital property as follows: (1) the husband's share of the former marital apartment...