Griffin v. Griffin

• Decision Date: 16 December 1985
• Citation: 496 N.Y.S.2d 249,115 A.D.2d 587
• Parties: Sandra GRIFFIN, Respondent, v. John W. GRIFFIN, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 249

496 N.Y.S.2d 249

115 A.D.2d 587

Sandra GRIFFIN, Respondent, v. John W. GRIFFIN, Appellant.

Supreme Court, Appellate Division,

Second Department.

Dec. 16, 1985.

Fahey, Isaac & Neale, White Plains (Evelyn K. Isaac, of counsel), for appellant.

Martin J. Rosen, P.C., White Plains (Emanuel Thebner, of counsel), for respondent.

Before LAZER, J.P., and WEINSTEIN, NIEHOFF and KUNZEMAN, JJ.

MEMORANDUM BY THE COURT.

In an action for divorce, equitable distribution, and other ancillary relief, the defendant husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Westchester County (Walsh, J.), dated November 7, 1984, which, after a nonjury trial, inter alia, (1) awarded sole title, use and occupancy of the marital home to the plaintiff wife along with title and possession of the furnishing and personalty contained therein, (2) awarded plaintiff a net distributive award of $15,272.10, (3) ordered defendant to pay $200 per week for maintenance and $100 per week for child support, and (4) awarded to plaintiff's attorney counsel fees in the sum of $15,756.

Judgment modified, on the facts, by deleting therefrom the fourth decretal paragraph which set the amount of the net distributive award to which plaintiff was entitled at $15,272.10. As so modified, judgment affirmed insofar as appealed from, with costs to plaintiff, and matter remitted to the Supreme Court, Westchester County, for recomputation of the net distributive award in accordance herewith.

In 1981, plaintiff obtained a judgment of divorce against defendant on the ground of cruel and inhuman treatment. Said judgment referred all ancillary issues back to the trial court. In March 1984, a trial was conducted with regard to the issues of equitable distribution, child support, maintenance, counsel fees, and the reason for and extent of defendant's claimed unemployment since July 14, 1982. The results of the trial form the basis for the current appeal.

On the basis of the evidence adduced, we find unpersuasive defendant's contention that the trial court erred in determining that each party was entitled to 50% of the value of the marital assets. The court's determination that the plaintiff was entitled to a 50% share in defendant's independent insurance brokerage business was amply supported by the record, which illustrated that plaintiff had made substantial direct and indirect contributions to the business (see, Domestic Relations Law § 236[B][5][d][6] ). Indeed, in addition to her services as a spouse, parent and homemaker, plaintiff was also partially instrumental in the procuring of approximately 90% of defendant's business clients.

Moreover, the overwhelming evidence suggesting that defendant's claimed unemployment and poverty was contrived provided an ample basis for the court's determination that defendant was guilty of economic fault (see, Hickland v. Hickland, 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243, cert. denied 429 U.S. 941, 97 S.Ct. 357, 50 L.Ed.2d 310), which is clearly a factor that may be considered in fixing the equitable distribution award (see, Blickstein v. Blickstein, 99 A.D.2d 287, 472 N.Y.S.2d 287, appeal dismissed 62 N.Y.2d 802).

Furthermore, there was no error in the court's assignment of a $20,000 value to plaintiff's share of the business. Since no evidence was presented to establish the net worth of defendant's business, the court could properly substitute defendant's annual earnings of $40,000 for the net worth figure (see, Matter of Ward v. Ward, 94 A.D.2d 908, 463 N.Y.S.2d 634; Nehorayoff v. Nehorayoff, 108 Misc.2d 311, 437 N.Y.S.2d 584). Moreover, the court's valuation of the residence at $200,000 was also correct in light of the testimony by defendant's witness that comparable homes in the same geographic area had been sold during the year immediately preceding the trial for between $200,000 and $210,000. The issue of the valuation of the household furnishings was essentially one of credibility for the trier of fact, and we discern no error in the court's crediting of plaintiff's testimony as to their value (cf. Cataudella v. Cataudella, 74 A.D.2d 893, 425 N.Y.S.2d 863).

Further, the court's finding that the plaintiff, as custodial parent, should have exclusive title and possession of the marital residence and its household effects was proper (see, Domestic Relations Law § 236[B][5][d][3] ). We further find no error in the court's determination that defendan...