Iwanow v. Iwanow

• Court: New York Supreme Court — Appellate Division
• Citation: Iwanow v. Iwanow, 39 AD3d 471, 834 N.Y.S.2d 247, 2007 NY Slip Op 2888 (N.Y. App. Div. 2007)
• Decision Date: 03 April 2007
• Docket Number: 2005-05382.,2005-02425.
• Parties: MILKA IWANOW, Respondent, v. STANISLAW IWANOW, Appellant, and CMS REALTY CORPORATION, Defendant.

39 A.D.3d 471

834 N.Y.S.2d 247

2007 NY Slip Op 02888

MILKA IWANOW, Respondent, v. STANISLAW IWANOW, Appellant, and CMS REALTY CORPORATION, Defendant.

2005-02425.

2005-05382.

Appellate Division of the Supreme Court of the State of New York, Second Department.

Decided April 3, 2007.

In an action, inter alia, for a divorce and ancillary relief, the defendant husband appeals (1), as limited by his notice of appeal and brief, from so much of an order of the Supreme Court, Westchester County (Giacomo, J.), entered February 2, 2005, as granted that branch of the plaintiff wife's motion which was for pendente lite maintenance to the extent of awarding her the sum of $4,000 per month, and denied that branch of his motion which was to dismiss the third cause of action in the amended verified complaint dated August 23, 2004, and (2) from an order of the same court entered April 29, 2005, which denied that branch of his cross motion which was to establish the date for identifying, classifying, and valuing the marital assets to be July 24, 1990.

Ordered that the order entered February 2, 2005 is affirmed insofar as appealed from; and it is further,

Ordered that order entered April 29, 2005 is affirmed; and it is further,

Ordered that one bill of costs is awarded to the plaintiff.

On July 24, 1990 the plaintiff wife commenced an action for a divorce and ancillary relief against the defendant husband. However, that action was voluntarily discontinued by stipulation of the parties. In 2004 the wife commenced this action for a divorce and ancillary relief. In the orders appealed from, the Supreme Court, inter alia, granted that branch of the wife's motion which was for pendente lite maintenance to the extent of awarding her the sum of $4,000 per month, denied that branch of the husband's motion which was to dismiss the third cause of action in the amended verified complaint dated August 23, 2004, and denied that branch of the husband's cross motion which was to establish the date for identifying, classifying, and valuing the marital assets to be July 24, 1990. We affirm.

Contrary to the husband's contention, the award of pendente lite maintenance in the sum of $4,000 per month was a proper accommodation between the reasonable needs of the wife and the financial ability of the husband, giving due regard to the parties' pre-commencement standard of living (see Taylor v Taylor, 306 AD2d 401 [2003]; Goldstein v Goldstein, 303 AD2d 550 [2003]). In general, a speedy trial is the proper remedy for a perceived inequity in a pendente lite award, and modification by an appellate court is rare absent exigent circumstances not here present (see Taylor v Taylor, supra; Goldstein v Goldstein, supra).

The Supreme Court did not err in denying that branch of the husband's cross motion which was to establish the date for identifying, classifying, and valuing the marital assets to be July 24, 1990. Resolution of this issue requires analysis of several interrelated matters.

The husband's cross motion failed to differentiate between two distinct concepts under the Domestic Relations Law, to wit: the date that marital assets cease to accrue, and the date or dates that such assets are valued. Concerning accrual, Domestic Relations Law § 236 (B) (1) (c) provides, in relevant part: "The term `marital property' shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held." The Court of Appeals has construed this provision to terminate the accrual of marital property upon the execution of a separation agreement opting out of the statutory equitable distribution regime, or upon the commencement of an action which seeks "`divorce, or the dissolution, annulment or declaration of the nullity of a marriage', i.e., an action in which equitable distribution is available (Domestic Relations Law § 236 [B] [5])" (Anglin v Anglin, 80 NY2d 553, 557 [1992]). The Court of Appeals found that such a rule "provides internal consistency and compatibility and objective verification, as opposed to uneven, ephemeral, personal interpretations as to when economic marital partnerships end," and was consistent with prior holdings that the "`winding up of the parties' economic affairs and a severance of their economic ties by an equitable distribution of the marital assets'—a winding up consistent with the termination of a partnership—is to be carried out `upon dissolution of the marriage'" (id. at 557, citing O'Brien v O'Brien, 66 NY2d 576, 585 [1985]).

Concerning valuation, Domestic Relations Law § 236 (B) (4) (b) provides: "As soon as practicable after a matrimonial action has been commenced, the court shall set the date or dates the parties shall use for the valuation of each asset. The valuation date or dates may be anytime from the date of commencement of the action to the date of trial." In contrast to the relatively clearly defined rules discussed in Anglin v Anglin (supra) as to when marital property ceases to accrue, "the trial court has broad discretion in selecting the dates for the valuation of marital assets and, depending on the particular circumstances of the case, may appropriately fix different valuation dates for different assets" (Kirshenbaum v Kirshenbaum, 203 AD2d 534, 535 [1994]; see Daniel v Friedman, 22 AD3d 707 [2005]). This provision contemplates fact-specific inquiries based on the nature of the asset itself (see e.g. McSparron v McSparron, 87 NY2d 275, 287-288 [1995]), and may include consideration of culpable conduct by a party. For example, a court could value an asset as of the date of the commencement of an action rather that at the time of trial, when the value of the asset "significantly decreased after commencement of the action due to wasteful dissipation or other fault of the owner spouse" (Siegel v Siegel, 132 AD2d 247, 251 [1987], quoting Wegman v Wegman, 123 AD2d 220, 231 [1986]). In sum, the date that marital assets...