Hymowitz v. Hymowitz

• Decision Date: 16 July 2014
• Citation: 119 A.D.3d 736,2014 N.Y. Slip Op. 05306,991 N.Y.S.2d 57
• Parties: Ira HYMOWITZ, respondent, v. Ellen HYMOWITZ, appellant.
• Court: New York Supreme Court — Appellate Division

119 A.D.3d 736

991 N.Y.S.2d 57

2014 N.Y. Slip Op. 05306

Ira HYMOWITZ, respondent,

v.Ellen HYMOWITZ, appellant.

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

July 16, 2014.

Wand, Powers & Goody, LLP, Huntington, N.Y. (Carl F. Wand and Jennifer H. Goody of counsel), for appellant.

Glenn S. Koopersmith, Garden City, N.Y., for respondent.

PETER B. SKELOS, J.P., PLUMMER E. LOTT, SHERI S. ROMAN, and JEFFREY A. COHEN, JJ.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from stated portions of an amended judgment of the Supreme Court, Nassau County (Diamond, J.), entered March 21, 2012, which, upon a decision of the same court dated September 1, 2011, as amended January 9, 2012, made after a nonjury trial, and an order of the same court dated October 24, 2011, inter alia, (1) awarded her child support in the sum of only $147.12 per week, (2) awarded her maintenance for only seven years, (3) failed to direct the plaintiff to obtain and maintain a life insurance policy to secure child support and maintenance payments, (4) determined that the plaintiff's interest in Weinstein & Holtzman, Inc., was his separate property and awarded the defendant the sum of only $69,900, representing 15% of the increase in the value of the plaintiff's interest in that business, (5) determined that the plaintiff's 1/3 interest in BSH Park Row, LLC, was his separate property and awarded the defendant the sum of only $184,950, representing her 15% share of the value of that business, (6) failed to equitably distribute a share of the plaintiff's interest in HGH Family, LLC, by awarding the defendant only 50% of the net profit distributions that the plaintiff receives from HGH Family, LLC, until the defendant's 66th birthday, (7) valued the parties' financial and retirement accounts “as of the date of the signing of the Judgment of Divorce,” (8) awarded the plaintiff a credit against the proceeds of the sale of the marital residence for 100% of the payments he made to reduce the principal balance of the mortgage on the marital residence, and (9) awarded her an attorney's fee in the sum of only $115,000 and an expert fee in the sum of only $20,500.

ORDERED that the amended judgment is modified, on the law, on the facts, and in the exercise of discretion, (1) by deleting the provision thereof awarding the defendant the sum of $69,900, representing 15% of the increase in value of the plaintiff's interest in Weinstein & Holtzman, Inc., and substituting therefor a provision awarding the defendant the sum of $116,500, representing 25% of the increase in value of the plaintiff's interest in that business, (2) by deleting the provision thereof awarding the defendant the sum of $184,950 as her separate property interest in BSH Park Row, LLC, representing 15% of the value of the plaintiff's interest in that business, and substituting therefor a provision determining that the plaintiff's 1/3 interest in BSH Park Row, LLC, is marital property subject to equitable distribution, and awarding the defendant the sum of $308,250, representing 25% of the value of the plaintiff's interest in that business, (3) by deleting the provision thereof awarding the defendant 50% of the net profit distributions that the plaintiff receives from HGH Family, LLC, until her 66th birthday, and substituting therefor a provision directing that the plaintiff's interest in HGH Family, LLC, is marital property subject to equitable distribution, and awarding the defendant distributions from her equitable share of the plaintiff's interest in HGH Family, LLC, retroactive to the date of the commencement of the action, in an amount to be calculated by the Supreme Court, representing 40% of the value of the plaintiff's interest in that business, (4) by deleting the provision thereof awarding the plaintiff a credit against the proceeds of the sale of the marital residence for 100% of the payments he made to reduce the principal balance of the mortgage on the marital residence during the divorce proceedings, and substituting therefor a provision awarding the plaintiff a credit for 50% of the payments he made to reduce the principal balance of the mortgage on the marital residence during the divorce proceedings, (5) by adding a provision thereto awarding the defendant a credit against the proceeds of the sale of the marital residence for the amount the plaintiff withdrew from the parties' home equity line of credit account to pay his attorney's and expert fees, (6) by adding a provision thereto distributing to each party 50% of the shares of each of the stocks acquired during the marriage, (7) by adding a provision thereto awarding the defendant a credit in the sum of $1,911.97, representing 50% of the marital portion of the parties' tax refund for tax year 2008, (8) by deleting the provision thereof valuing the parties' financial and retirement accounts “as of the date of the signing of the Judgment of Divorce,” and substituting therefor a provision valuing the parties' financial and retirement accounts as of January 1, 2011, (9) by deleting the provision thereof awarding child support based only upon the first $130,000 of combined parental income, and substituting therefor a provision awarding child support based upon the first $175,000 of combined parental income, (10) by deleting the provision thereof awarding the defendant maintenance in the sum of $6,250 per month, commencing with the 49th month after the signing of the amended judgment and continuing for 36 months thereafter, and substituting therefor a provision awarding her maintenance in the sum of $6,250 per month, commencing with the 49th month from the signing of the amended judgment and continuing until the earliest date of her remarriage, her attainment of age 66, or the death of either party, and (11) by adding a provision thereto directing the plaintiff to maintain a life insurance policy for the benefit of the defendant until payment of the distributive award and maintenance is completed; as so modified, the amended judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for further proceedings in accordance herewith, and for the entry of an appropriate second amended judgment thereafter.

The plaintiff and the defendant were married on April 10, 1988, and have two children, who are now both over the age of 21. Following 20 years of marriage, the plaintiff commenced this action for a divorce and ancillary relief, and the matter proceeded to trial on the issues of equitable distribution of the marital property, maintenance, child support, attorney's fees, and expert fees.

Contrary to the defendant's contention, the record supports the Supreme Court's conclusion that the transfer of a 1/3 interest in Weinstein & Holtzman, Inc. (hereinafter Weinstein & Holtzman), a family-owned hardware store, to the plaintiff from his father and uncle which occurred during the marriage was tantamount to a “gift from a party other than the spouse” and, thus, was the separate property of the plaintiff not subject to equitable distribution (Domestic Relations Law § 236[B][1][d][1] ). The determination as to whether the transfer was a gift to the plaintiff depended upon the credibility of the witnesses at trial, and the credibility determinations made by the Supreme Court are supported by the record ( see Scher v. Scher, 91 A.D.3d 842, 846, 938 N.Y.S.2d 317; Aloi v. Simoni, 82 A.D.3d 683, 685, 918 N.Y.S.2d 506; Schwartz v. Schwartz, 67 A.D.3d 989, 990, 890 N.Y.S.2d 71; Ivani v. Ivani, 303 A.D.2d 639, 640, 757 N.Y.S.2d 89). However, we find that the Supreme Court should have awarded the defendant a 25% share of the appreciationin the value of the plaintiff's interest in Weinstein & Holtzman ( seeDomestic Relations Law § 236[B][5][d][6]; Price v. Price, 69 N.Y.2d 8, 18, 511 N.Y.S.2d 219, 503 N.E.2d 684; Formica v. Formica, 101 A.D.3d 805, 806, 957 N.Y.S.2d 149; Embury v. Embury, 49 A.D.3d 802, 804, 854 N.Y.S.2d 502; Imhof v. Imhof, 259 A.D.2d 666, 667, 686 N.Y.S.2d 825). Taking into consideration the circumstances of this case and of the respective parties, we find that an award to the defendant of a 25% share of the appreciation in value of the plaintiff's interest in Weinstein & Holtzman will take into account the defendant's limited involvement in the plaintiff's business, while not ignoring the direct and indirect contributions she made as the primary caretaker of the parties' children, as a homemaker, and as a social companion to the plaintiff, while foregoing her career ( seeDomestic Relations Law § 236[B][5][d][6]; Price v. Price, 69 N.Y.2d at 11, 14, 511 N.Y.S.2d 219, 503 N.E.2d 684; Ciampa v. Ciampa, 47 A.D.3d 745, 747, 850 N.Y.S.2d 190; Griggs v. Griggs, 44 A.D.3d 710, 844 N.Y.S.2d 351). Contrary to the defendant's contention, the Supreme Court did not improvidently exercise its discretion in valuing the appreciation of the plaintiff's interest in Weinstein & Holtzman ( see Burns v. Burns, 84 N.Y.2d 369, 375, 618 N.Y.S.2d 761, 643 N.E.2d 80; Litman v. Litman, 61 N.Y.2d 918, 920, 474 N.Y.S.2d 718, 463 N.E.2d 34; Wasserman v. Wasserman, 66 A.D.3d 880, 882, 888 N.Y.S.2d 90).

The Supreme Court improperly classified the plaintiff's 1/3 interest in BSH Park Row, LLC (hereinafter BSH), a holding company whose sole asset is a building located at 29 Park Row in lower Manhattan in which the hardware store is situated, as his separate property not subject to equitable distribution. “Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property” (Judson v. Judson, 255 A.D.2d 656, 657, 679 N.Y.S.2d 465; see Steinberg v. Steinberg, 59 A.D.3d 702, 704, 874 N.Y.S.2d 230; D'Angelo v. D'Angelo, 14 A.D.3d 476, 477, 788 N.Y.S.2d 154; Farag v. Farag, 4...