Moyal v. Moyal

• Decision Date: 23 June 2011
• Docket Number: 350058/07 3222A,3221- 3222-
• Court: New York Supreme Court — Appellate Division
• Parties: Dany Moyal, Plaintiff-Respondent-Appellant, v. Marc Moyal, Defendant-Appellant-Respondent.

2011 NY Slip Op 05406

Dany Moyal, Plaintiff-Respondent-Appellant,

v.Marc Moyal, Defendant-Appellant-Respondent.

350058/07 3222A

3221- 3222-

Appellate Division of the Supreme Court of the State of New York

ENTERED: JUNE 23, 2011

Andrias, J.P., Friedman, McGuire, Acosta, DeGrasse, JJ.

Bender Rosenthal Isaacs & Richter LLP, New York (Susan L. Bender of counsel), for appellant-respondent.

Sheresky Aronson Mayefsky & Sloan, LLP, New York (Lawrence B. Trachtenberg of counsel), for respondent-appellant.

Judgment, Supreme Court, New York County (Marilyn B. Dershowitz, Special Referee), entered January 6, 2010, valuing and including certain marital assets in the distributive award, awarding plaintiff wife maintenance, counsel fees and expert fees, and holding the wife liable for 50% of the parties' tax liability, unanimously modified, on the law and in the exercise of discretion, to the extent of vacating the valuations of Marcotex and of the parties' condominium in Israel and remanding for a determination of their values, including defendant husband's loan receivable in the marital estate, awarding the husband a credit against the distributive award in the amount of $182,382 for payments he made during the pendency of the action, and awarding the wife post-decision interest on the distributive award, and otherwise affirmed, without costs. Appeals from orders, same court and Special Referee, entered August 25, 2009 and October 13, 2009, unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

While "[t]here is no uniform rule for fixing the value of a business for the purpose of equitable distribution" (Wasserman v Wasserman, 66 AD3d 880, 882 [2009]), the Special Referee did not sufficiently explain her basic concurrence in the valuation of the husband's business by the wife's appraiser (see Capasso v Capasso, 119 AD2d 268, 272 [1986]) despite the numerous recognized flaws in his report, including, among other things, the insufficient examination and murky explanation of its accounts receivable, the unclear rationale for the particular earnings multiple chosen, the inadequate explanation for the application of a gross profit margin, unsubstantiated assumptions regarding personal use of business credit cards and the consideration of industry trends without adequate basis. The husband's $1.2 million loan receivable should have been included as part of the marital estate, since he did not carry his burden to show that he did not use marital funds to make the loan (see Sagarin v Sagarin, 251 AD2d 396 [1998]). We note, however, that our determination with respect to this receivable, owed to the husband on account of his business, is without prejudice to any arguments the parties may make concerning the effect of the debt on the value of the business. In light of asubstantially higher offer and appraisals, it was an improvident exercise of discretion to value the parties' condominium in Israel based on the price of the husband's sale to a childhood friend in a transaction that was not documented in any way (see Terico v Terico, 222 AD2d 219 [1995]), the proceeds of which were reduced by the amount of an undocumented loan the husband claimed to have made to the friend. The wife is entitled to post-decision interest on the distributive award, which is mandatory (see CPLR 5002; Wallach v Wallach, 204 AD2d 211, 212 [1994]).

The wife failed to prove the value of the husband's interests in Merryson and Royal Textiles (see Davis v Davis, 128 AD2d 470, 476 [1987]) or rebut his testimony regarding the depressed state and lack of value of these businesses at the time of trial. The marital apartment was properly valued based on the factual testimony of an experienced broker with knowledge of prices in the same building (see Matter of Semple School for Girls v Boyland, 308 NY 382, 388 [1955]). The duration and amount of maintenance awarded, to a wife in her 50s in a long- term marriage, who lacked business experience or a degree and had not been in the work force for years while raising children, was properly based on the relevant factors and evidence (see Naimollah v De Ugarte, 18 AD3d 268, 271 [2005]). The wife was properly assessed 50% of the parties' tax liability for underreporting income. She clearly benefitted from the use of the funds and the circumstances of this case are unlike those involving a failure to file returns with an innocent spouse not on notice of any wrongdoing (cf. Frey v Frey, 68 AD3d 1052 [2009]; Costello v Costello, 304 AD2d 517, 519 [2003]).

The Special Referee clearly and reasonably linked the award of $5,000 in maintenance for 15 years to the distributive award and we reject the husband's claim that he is entitled to a credit against the award because the monthly pendente lite maintenance exceeded the amount ultimately...