Giallo-Uvino v. Uvino

• Decision Date: 17 October 2018
• Docket Number: Index No. 15861/12,2016–05991
• Citation: 165 A.D.3d 894,86 N.Y.S.3d 125
• Parties: Anna GIALLO–UVINO, Appellant, v. Louis UVINO, Respondent.
• Court: New York Supreme Court — Appellate Division

165 A.D.3d 894
86 N.Y.S.3d 125

Anna GIALLO–UVINO, Appellant,
v.
Louis UVINO, Respondent.

2016–05991
Index No. 15861/12

Supreme Court, Appellate Division, Second Department, New York.

Argued—March 6, 2018
October 17, 2018

Glenn S. Koopersmith, Garden City, NY, for appellant.

RUTH C. BALKIN, J.P., SHERI S. ROMAN, ROBERT J. MILLER, VALERIE BRATHWAITE NELSON, JJ.

86 N.Y.S.3d 126

DECISION & ORDER

In a matrimonial action, the plaintiff appeals from a judgment of divorce of the Supreme Court, Queens County (Anna Culley, J.), entered April 26, 2016. The judgment, insofar as appealed from, upon a decision of the same court dated February 29, 2016, made after an inquest, (1) valued the defendant's law practice as of the date of trial and determined that the practice had no value, (2) awarded the plaintiff only 55% of the net proceeds of the sale of the marital residence and awarded the defendant 50% of the marital portion of certain retirement accounts, (3) declined to award the plaintiff an attorney's fee and expert fees, (4) determined that the plaintiff was not entitled to an award of maintenance, and (5) imputed annual income of only $120,000 to the defendant for the purpose of calculating child support.

ORDERED that the judgment is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof awarding the plaintiff 55% of the net proceeds of the sale of the marital residence and substituting therefor a provision awarding the plaintiff 70% of the net proceeds, and (2) by deleting the provision thereof declining to award the plaintiff an attorney's fee and substituting therefor a provision awarding the plaintiff an attorney's fee in the sum of $70,000; as so modified, the judgment is affirmed insofar as appealed from, with costs to the plaintiff.

The parties were married in June 2000, and have one child. During the course of the marriage, the plaintiff worked as a registered nurse, and the defendant was an attorney with his own law practice. In July 2012, the plaintiff commenced this action for a divorce and ancillary relief, and the defendant appeared in the action. The defendant failed to appear for the trial in July 2015, and the Supreme Court held an inquest. After the inquest, the court, in a decision dated February 29, 2016, valued the defendant's law practice as of the date of trial and determined that the practice had no value, awarded the plaintiff 55% of $561,265.75, representing the net proceeds of the sale of the marital residence, awarded the defendant 50% of the marital portion of certain retirement accounts, and declined to award the plaintiff an attorney's fee or expert fees. In addition, the court, among other things, determined that the plaintiff was not entitled to an award of maintenance and imputed annual income of $120,000 to the defendant for the purpose of calculating child support. A judgment of divorce was entered April 26, 2016, which was based on the decision dated February 29, 2016. The plaintiff appeals.

"Once property is classified as marital or separate, the trial court has broad discretion to select an ‘appropriate date for measuring the value of [the] property’ " ( Mesholam v. Mesholam, 11 N.Y.3d 24, 28, 862 N.Y.S.2d 453, 892 N.E.2d 846, quoting McSparron v. McSparron, 87 N.Y.2d 275, 287, 639 N.Y.S.2d 265, 662 N.E.2d 745...