Garges v. Garges

• Decision Date: 25 July 1991
• Citation: 572 N.Y.S.2d 780,175 A.D.2d 511
• Parties: Alan R. GARGES, Respondent, v. Carol A. GARGES, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 780

572 N.Y.S.2d 780

175 A.D.2d 511

Alan R. GARGES, Respondent, v. Carol A. GARGES, Appellant.

Supreme Court, Appellate Division Third Department.

July 25, 1991.

Twining, Nemia, Hill & Steflik (Richard M. Hill, of counsel), Binghamton, for appellant.

Scanlon and Vetrano (Michael Danaher, of counsel), Endicott, for respondent.

Before MIKOLL, J.P., and YESAWICH, MERCURE, CREW and HARVEY, JJ.

MERCURE, Justice.

Appeal from a judgment of the Supreme Court (Coutant, J.) ordering, inter alia equitable distribution of the parties' marital property, entered November 16, 1989 in Broome County, upon a decision of the court.

Plaintiff and defendant were married on July 10, 1983. The marriage produced no children. Plaintiff commenced this action for divorce in July 1988 and the matter came on for a nonjury trial in July and August 1989, following which Supreme Court granted the parties dual divorces and identified, valued and distributed the marital property, awarded defendant maintenance in the amount of $100 per week for a period of six months and $75 per week for an additional six months thereafter, and denied defendant's request for an award of counsel fees. Defendant appeals.

Initially, we reject the contention that Supreme Court erred in its valuation of the marital residence. The property, consisting of a four-bedroom ranch home with detached barn, pool, tennis courts and approximately 29 acres of land, was variously appraised at $260,000 in November 1988, $325,000 in January 1989, $235,000 in July 1989 and $360,000 in August 1989. In valuing the property at $275,000 as of the date of commencement of the action and the time of trial, Supreme Court acted well within its discretion to accept or reject any of the valuations and to decide how much weight to attribute to each (see, Hoyt v. Hoyt, 166 A.D.2d 800, 801-802, 563 N.Y.S.2d 161; Oswald v. Oswald, 154 A.D.2d 817, 818-819, 546 N.Y.S.2d 475; Ducharme v. Ducharme, 145 A.D.2d 737, 739, 535 N.Y.S.2d 474, lv. denied 73 N.Y.2d 708, 540 N.Y.S.2d 1003, 538 N.E.2d 355). Supreme Court justified its rejection of the appraisals "at the higher end of the scale" by citing to the property's "unique and limited market". The case of Amodio v. Amodio, 70 N.Y.2d 5, 516 N.Y.S.2d 923, 509 N.E.2d 936, which involved the valuation of stock in a closely held corporation which was subject to a buy-sell agreement and had no market value, does not support the argument that Supreme Court erred in undervaluing the property because of its limited marketability. Nor did Supreme Court err in permitting plaintiff to purchase defendant's interest in the marital residence as an alternative to the sale of the property. Notably, defendant has expressed no interest in retaining the property.

We also reject the contention that Supreme Court erred in failing to award defendant a share of the appreciation of the Westchester County residence that plaintiff owned with his prior wife and which was sold a mere five months following the parties' marriage. Exercising its broad discretion to resolve conflicting evidence with credibility determinations (see, Guarnier v. Guarnier, 155 A.D.2d 744, 745, 547 N.Y.S.2d 455), Supreme Court rejected defendant's testimony concerning the scope of the improvements she made to the property and determined that its appreciation was not due to defendant's efforts (see, Price v. Price, 69 N.Y.2d 8, 18, 511 N.Y.S.2d 219, 503 N.E.2d 684). Rather, finding that defendant's labors in wallpapering, painting and decorating were merely cosmetic in nature, Supreme Court compensated her with a $2,000 award. Similarly, Supreme Court rejected defendant's claim that she invested $5,000 in the purchase of this property. Rather, crediting plaintiff's testimony, it determined the contribution to have been a loan which plaintiff repaid.

Nor do we agree that Supreme Court erred in its award of maintenance or in its denial of counsel fees. Considering all of the applicable statutory factors (see, Domestic Relations Law § 236[B][6][a][1]-[11] and the testimony of the sales manager of the real estate agency that employed defendant at the time of the trial, Supreme Court made a reasoned determination that defendant, an experienced real estate broker, would be capable of supporting herself by the end of one year (see, Culnan v. Culnan, 142 A.D.2d 805, 807, 530 N.Y.S.2d 688, lv. dismissed 73 N.Y.2d 994, 540 N.Y.S.2d 1005, 538 N.E.2d 357). Further, in view of the...