MacDonald v. MacDonald

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before O'BRIEN
• Citation: MacDonald v. MacDonald, 226 A.D.2d 596, 641 N.Y.S.2d 349 (N.Y. App. Div. 1996)
• Decision Date: 22 April 1996
• Parties: Anne MacDONALD, Respondent-Appellant, v. W. Cullen MacDONALD, Appellant-Respondent.

Page 349

641 N.Y.S.2d 349

226 A.D.2d 596

Anne MacDONALD, Respondent-Appellant, v. W. Cullen MacDONALD, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

April 22, 1996.

Edelstein & Brown, Brooklyn (Saul Edelstein, of counsel), for appellant-respondent.

Flemming, Zulack & Williamson, L.L.P., New York City (Carolyn Ziegler and Cynthia B. Rubin, of counsel), for respondent-appellant.

Before O'BRIEN, J.P., and COPERTINO, SANTUCCI and KRAUSMAN, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, (1) the defendant former husband appeals, as limited by his brief, from stated portions of a judgment of the Supreme Court, Kings County (Rigler, J.), dated May 16, 1994, which, after a nonjury trial, inter alia, distributed the marital assets, and (2) the plaintiff former wife cross-appeals from so much of the same judgment as awarded her only $200 per week nondurational maintenance.

ORDERED that the judgment is reversed insofar as appealed from, on the law and the facts, and the eighth decretal paragraph thereof, which provided for the equitable distribution of the parties' assets is deleted; and it is further,

ORDERED that the judgment is affirmed insofar as cross-appealed from; and it is further,

ORDERED that the matter is remitted to the Supreme Court, Kings County, for redistribution of the marital assets in accordance herewith, and it is further,

ORDERED that the appellant-respondent is awarded one bill of costs.

We reject the contention by the former husband, who is a partner in a law firm, that the Supreme Court erred by including the death benefit provision of the partnership agreement when determining the value of the former husband's interest in the partnership for equitable distribution purposes (see, Burns v. Burns, 84 N.Y.2d 369, 375, 618 N.Y.S.2d 761, 643 N.E.2d 80; Amodio v. Amodio, 70 N.Y.2d 5, 7, 516 N.Y.S.2d 923, 509 N.E.2d 936; Litman v. Litman, 61 N.Y.2d 918, 920, 474 N.Y.S.2d 718, 463 N.E.2d 34). Uncertainty concerning future events should not bar attempts to assign value to an asset (see, Burns v. Burns, supra, at 375, 618 N.Y.S.2d 761, 643 N.E.2d 80). The Supreme Court properly rejected the former husband's contention that the withdrawal/death benefit contained in the partnership agreement should have been awarded to the wife only pursuant to a Qualified Domestic Relations Order, since the withdrawal/death benefit provision was being used for valuation and not distribution purposes (see, Harmon v. Harmon, 173 A.D.2d 98, 105-106, 578 N.Y.S.2d 897; Anonymous v. Anonymous, NYLJ, Sept. 24, 1993, at 22, col. 1; Stolowitz v. Stolowitz, 106 Misc.2d 853, 858, 435 N.Y.S.2d 882).

The husband's leasehold interest in the Blooming Grove house was acquired after the parties' marriage and was therefore subject to equitable distribution (see, Domestic Relations Law § 236[B][1][c] ). Similarly, repayment of the so-called "ESA loan",...