Glass v. Glass

• Decision Date: 21 November 1991
• Citation: 576 N.Y.S.2d 421,177 A.D.2d 807
• Parties: Virginia V. GLASS, Respondent-Appellant, v. Leo GLASS, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 421

576 N.Y.S.2d 421

177 A.D.2d 807

Virginia V. GLASS, Respondent-Appellant, v. Leo GLASS, Appellant-Respondent.

Supreme Court, Appellate Division,

Third Department.

Nov. 21, 1991.

Leo Glass, Monticello, appellant-respondent in person.

Goodman, Goodman & Jurist (Alan P. Goodman, of counsel), Garden City, for respondent-appellant.

Before CASEY, J.P., and WEISS, LEVINE, MERCURE and HARVEY, JJ.

CASEY, Justice Presiding.

Cross appeals from a judgment of the Supreme Court (Klein, J.H.O.) ordering, inter alia, equitable distribution of the parties' marital property, entered June 29, 1990 in Sullivan County, upon a decision of the court.

Following a trial, Supreme Court granted the parties a divorce and equitably distributed the marital property. The parties cross-appeal from the judgment, contending that the court made a number of errors.

Plaintiff's main claim on appeal is that Supreme Court erred in valuing defendant's law practice and certain real property on the basis of appraisals conducted pursuant to an agreement between the parties. The court conducted a hearing on the issue and concluded that the parties intended to be bound by the valuations resulting from the appraisals. Based upon our review of the record, including evidence of the parties' conduct before and after the appraisals were prepared, we find no basis for disturbing Supreme Court's ruling on the issue. Plaintiff's contention that the parties' agreement concerning the valuation of certain marital assets constitutes an opting-out agreement subject to the formal requirements of Domestic Relations Law § 236(B)(3) is meritless.

Next, Supreme Court's conclusion that the bulk of the marital property should be evenly divided between the parties is challenged by both plaintiff and defendant. It is clear from the decision that each of the statutory factors was considered (see, Domestic Relations Law § 236[B][5][d], and the court viewed the lengthy marriage as an economic partnership. The court's factual findings are amply supported by the record and there is no basis for disturbing the award. Plaintiff's assertion of inadequacy is based largely upon her claim that defendant's law practice and certain real property were undervalued, a claim which has no merit in light of our ruling on the previous issue. Defendant's contention that the award to plaintiff is excessive ignores the evidence in the record which supports the court's finding of an economic partnership.

We reject plaintiff's claim that Supreme Court erred in valuing the marital assets as of the date of the commencement of the action (see, Lord v. Lord, 124 A.D.2d 930, 932, 508 N.Y.S.2d 676). Defendant's law practice and certain real property were valued on the basis of the parties' agreement and there is nothing in the record to suggest that valuation of the other assets as of the date of the commencement of the action was patently inequitable (cf., Patelunas v. Patelunas, 139 A.D.2d 883, 884-885, 527 N.Y.S.2d 325). We are of the view, however, that plaintiff's share of defendant's pension/retirement funds should have included the passive appreciation which occurred during the period of time between the commencement of the action and the date of trial (see, Glasberg v. Glasberg, 162 A.D.2d 586, 556 N.Y.S.2d 772). The matter must therefore be remitted to Supreme Court to determine how much of the increase in the value of defendant's pension/retirement funds was due to passive appreciation and how much was due to defendant's contributions after commencement of the action, which are not subject to equitable distribution. (id.).

We see no abuse of discretion in Supreme Court...