Myers v. Myers
| Decision Date | 12 November 1998 |
| Citation | 255 A.D.2d 711,680 N.Y.S.2d 690 |
| Parties | 1998 N.Y. Slip Op. 10,070 Kenneth O. MYERS, Respondent-Appellant, v. Nancy E. MYERS, Appellant-Respondent. |
| Court | New York Supreme Court — Appellate Division |
Nicholas E. Tishler, Schenectady, for appellant-respondent.
Tippins & Cornaire, L.L.P. (Timothy M. Tippins of counsel), Troy, for respondent-appellant.
Before: MERCURE, J.P., YESAWICH, PETERS, SPAIN and GRAFFEO, JJ.
Cross appeals from a judgment of the Supreme Court (Reilly Jr., J.) ordering, inter alia, equitable distribution of the parties' marital property, entered August 5, 1996 in Schenectady County, upon a decision of the court.
The parties were married in 1970; they met when plaintiff was employed as a driver by defendant's parents in the family heating oil business, H & M Oil Company. The parties have two children, a son born in 1971 and a daughter born in 1973. During the course of their marriage, the parties amassed numerous assets, including H & M Oil, which operated its business in the City of Schenectady, Schenectady County. The parties also acquired several parcels of real property, including the marital residence, vacation properties, rental properties and a 50% interest in a real estate development known as Lori Meadows. They also accumulated considerable savings and investments. Plaintiff commenced this action in 1989 seeking a divorce on the grounds of cruel and inhuman treatment, constructive abandonment and adultery. Defendant counterclaimed for divorce on the grounds of cruel and inhuman treatment and adultery. After a nonjury trial, Supreme Court, inter alia, dismissed defendant's counterclaims, granted plaintiff a judgement of divorce based on cruel and inhuman treatment and made a distribution of the parties' property. Defendant appeals and plaintiff cross-appeals.
Initially, we reject defendant's contention that Supreme Court improperly limited her testimony seeking to establish her counterclaim for divorce on grounds of cruel and inhuman treatment and adultery, especially in light of that court's broad discretion to determine whether a divorce based on cruel and inhuman treatment is warranted (see, Forcucci v. Forcucci, 96 A.D.2d 751, 465 N.Y.S.2d 320), the heightened standard for establishing such grounds in a marriage of long duration (see, Brady v. Brady, 64 N.Y.2d 339, 343, 486 N.Y.S.2d 891, 476 N.E.2d 290) and the deference given the trial court where issues of credibility arise (see, Blaise v. Blaise, 241 A.D.2d 680, 659 N.Y.S.2d 926; Hunt v. Hunt, 222 A.D.2d 759, 634 N.Y.S.2d 804). As to the issue of defendant's attempt to prove adultery on the part of plaintiff, the fact that Supreme Court sustained objections to defendant's cross-examination of plaintiff about an order of paternity, apparently on the ground that such questioning was beyond the scope of direct examination, did not preclude defendant from questioning plaintiff and offering other evidence, if any, during defendant's direct case. Accordingly, the court did not err in dismissing defendant's counterclaim for lack of proof.
We next reject defendant's assertion that Supreme Court erred in precluding the testimony of most of her expert witnesses on the issue of the value of the business. Considering plaintiff's timely demand for disclosure, defendant's 11th-hour notice of expert witnesses and the court's broad discretion in managing pretrial discovery (see, Karney v. Arnot-Ogden Mem. Hosp., --- A.D.2d ----, 674 N.Y.S.2d 449), we conclude that Supreme Court did not abuse its discretion in precluding the testimony of three out of defendant's four proposed experts (see, CPLR 3101[d][1][i]; Karney v. Arnot-Ogden Mem. Hosp., supra, at 453; Douglass v. St. Joseph's Hosp., 246 A.D.2d 695, 696-697, 667 N.Y.S.2d 477, 479; Ingleston v. Francis, 206 A.D.2d 745, 614 N.Y.S.2d 649).
We also reject defendant's contention that Supreme Court improperly set the valuation date of H & M Oil as the date of commencement of this action. In its decision, Supreme Court provided a sound basis for its choice of dates and, most notably, neither party presented any proof of the value of the family business as of the date of trial. Given the discretion of the court in establishing the valuation date of assets (see, Domestic Relations Law § 236[B][4][b] ), Supreme Court did not err in choosing the date of commencement. However, we find no precedent or logic to support the court's conclusion that marital fault is an appropriate consideration in the selection of a valuation date.
Next, we agree with each of the parties that Supreme Court erred in computing the distribution of marital property, especially in light of the court's expressed intention to divide the marital assets equally. We first find merit in plaintiff's contention that Supreme Court should have applied a marketability discount in arriving at an ultimate value of H & M Oil, as the "risk associated with illiquidity of shares" should be considered in the valuation of a closely held corporation (Matter of Seagroatt Floral Co., 78 N.Y.2d 439, 446, 576 N.Y.S.2d 831, 583 N.E.2d 287; see, Sommer v. Sommer, 176 A.D.2d 1022, 1024, 575 N.Y.S.2d 178). Upon our review of the record we find ample support for the opinion by plaintiff's expert that the value of the family business, as a closely held corporation, should be discounted because of the relatively limited market for a closely held corporation.
The amount of the discount, if any, usually depends on the circumstances. We are also persuaded by the testimony of plaintiff's expert that a discount of 25%, a percentage for which there is ample precedent, is appropriate (see, e.g., Matter of Seagroatt Floral Co., supra, at 443, 576 N.Y.S.2d 831, 583 N.E.2d 287; Kalisch v. Kalisch, 184 A.D.2d 751, 753, 585 N.Y.S.2d 476; Matter of Joy Wholesale Sundries, 125 A.D.2d 310, 311, 508 N.Y.S.2d 594; Matter of Blake v. Blake Agency, 107 A.D.2d 139, 149, 486 N.Y.S.2d 341, lv. denied 65 N.Y.2d 609, 494 N.Y.S.2d 1028, 484 N.E.2d 671; Matter of Fleischer, 107 A.D.2d 97, 101, 486 N.Y.S.2d 272). Notably, plaintiff's expert took the "active market" for home heating oil businesses into consideration and suggested that a discount higher than 25% would not be justified. Given the extensive record before this court, including evidence and testimony regarding the value of the business, we find no need to remit this matter to Supreme Court (see, Maczek v. Maczek, 248 A.D.2d 835, ----, 669 N.Y.S.2d 749, 752; De Marco v. De Marco, 235 A.D.2d 1014, 652 N.Y.S.2d 898). Accordingly, the value of H & M Oil should be reduced to $350,117 (Supreme Court's valuation of $466,823 less $116,706 [25%] ). We find unavailing defendant's argument that Supreme Court erred in its consideration of the liability of H & M Oil resulting from the postcommencement discovery of a petroleum discharge at one of its properties (see, McSparron v. McSparron, 87 N.Y.2d 275, 288, 639 N.Y.S.2d 265, 662 N.E.2d 745).
Next, although we agree with Supreme Court that Lori Meadows is marital property, we find merit in both parties' assertions that the court erred in its calculation of their respective share of the proceeds of said development which was sold by plaintiff and his business partner for the net sum, after closing costs, of $911,049 (each parties' 50% share was $455,524). The capital gains tax paid by the parties was $109,511, 1 resulting in the net proceeds of the sale of $346,013. Applying Supreme Court's "separate property credit", representing "plaintiff's post-commencement efforts and risk assumption" of $31,503 (plaintiff's share or 50% of the $63,006 in costs attributable to the business partners' postcommencement efforts), results in a total of $314,510 available for equitable distribution. Accordingly, an equal division of said sum results in a share to defendant of $157,255, not the $120,596 awarded by Supreme Court.
We will adjust Supreme Court's calculations accordingly. Plaintiff's assertion that he is entitled to a 75% distribution of the Lori Meadows proceeds is without merit.
It is also evident, upon our review of the record, that Supreme Court overlooked a parcel referred to as the "Mariaville Lake Property", a vacant lot with a stipulated value of $18,000. In accordance with the framework of Supreme Court's stated goals, the parcel should have been included in the final distribution to defendant and plaintiff shall execute an appropriate deed and transfer his right, title and interest to defendant.
After a careful review of the record, we also conclude that Supreme Court properly identified and determined the value of all liquid marital accounts as of the date of commencement; additionally, we find no error in the court's distribution of said liquid marital assets nor in the distributive award to defendant arising out of the equal division of said funds.
Based upon the foregoing, the marital estate distribution is hereby modified in the following manner:
To Plaintiff To Defendant
H & M Oil $350,117
Ft. Hunter Road 53,000
Myron Street 120,000
Jackson Avenue 125,000
Mariaville Camp 55,000
Sacandaga Camp 55,000
Eastholm Road 58,000
Mariaville Lake Property 18,000
Totals $403,117
k $431,000
Combined nonliquid
marital assets
(as listed above) = $834,117
Each Parties' Share (50%) = $417,058
Computation of Additional Distributive Award to Defendant
Arising Out of
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