Miness v. Miness

• Decision Date: 22 July 1996
• Parties: Michael D. MINESS, Respondent, v. Dorothy V. MINESS, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 838

645 N.Y.S.2d 838

229 A.D.2d 520

Michael D. MINESS, Respondent, v. Dorothy V. MINESS, Appellant.

Supreme Court, Appellate Division,

Second Department.

July 22, 1996.

Tenzer Greenblatt, L.L.P., New York City (Leonard G. Florescue, of counsel; Miriam Bacon, on the brief), for appellant.

Weiss & Preston, L.L.P., Huntington Station (Norman Paul Weiss, of counsel), for respondent.

Before BRACKEN, J.P., and SANTUCCI, McGINITY and LUCIANO, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant wife appeals, as limited by her brief, from stated portions of (1) an order of the Supreme Court, Nassau County (DeMaro, J.), dated July 7, 1994, which modified a prior order of the same court, which, after a nonjury trial, inter alia, distributed the parties' marital property, awarded the defendant wife maintenance, and denied her application for counsel fees, and (2) a judgment of the same court dated October 11, 1994, entered, inter alia, upon the order.

ORDERED that the appeal from the order is dismissed; and it is further,

ORDERED that the judgment is modified by adding a decretal paragraph thereto directing the plaintiff husband to maintain insurance on his life in the face amount of $1,000,000 with the defendant wife as named beneficiary, and to maintain a policy of medical insurance for the defendant wife until she obtains an employment related policy of her own; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (CPLR 5501[a][1].

We find no error in the Supreme Court's determination that the plaintiff husband's interest in Glengariff Corporation, his deceased parents' nursing home business, was his separate property not subject to equitable distribution (see, Domestic Relations Law § 236[B][1][d] ). Moreover, the defendant wife failed to meet her burden of showing that she contributed directly or indirectly to Glengariff so as to entitle her to share in any appreciation in its value (see, Hartog v. Hartog, 85 N.Y.2d 36, 623 N.Y.S.2d 537, 647 N.E.2d 749; Price v. Price, 69 N.Y.2d 8, 511 N.Y.S.2d 219, 503 N.E.2d 684; O'Brien v. O'Brien, 66 N.Y.2d 576, 498 N.Y.S.2d 743, 489 N.E.2d 712). The husband however, by working as a consultant to Glengariff, learned the intricacies of the nursing home business which enabled him to develop his own facility, GlenHaven, which is clearly marital property (see, Domestic Relations Law § 236[B][1][c] ). The court awarded 50% of GlenHaven to the wife. Therefore, there is no merit to her contention that her contributions as a homemaker and primary caretaker were not compensated pursuant to the economic partnership concept of marital property.

There is no uniform method of fixing the value of an ongoing business for equitable distribution purposes and valuation is properly within the fact-finding power of the trial court (see, Amodio v. Amodio, 70 N.Y.2d 5, 516 N.Y.S.2d 923, 509 N.E.2d 936; Rice v. Rice, 222 A.D.2d 493, 634 N.Y.S.2d 761). We find no basis to disturb the court's valuation of GlenHaven. While the valuation is not any of those offered by the parties, it is nonetheless supported by the record (see, Terico v. Terico, 222 A.D.2d 219, 634 N.Y.S.2d 121; see also, Cohn v. Cohn, 155 A.D.2d 412, 547 N.Y.S.2d 85).

The wife was awarded lifetime...