Novick v. Novick
| Docket Number | 2019–13382,Index No. 200169/17 |
| Decision Date | 29 March 2023 |
| Citation | 214 A.D.3d 995,185 N.Y.S.3d 793 |
| Parties | Steven NOVICK, appellant-respondent, v. Adrienne NOVICK, respondent-appellant. |
| Court | New York Supreme Court — Appellate Division |
Law Offices of Steven D. Kommor, P.C., Melville, NY, for appellant-respondent.
Jody Pugach, P.C. (The Guttman Law Group, LLP, Melville, NY [Robin N. Guttman ], of counsel), for respondent-appellant.
COLLEEN D. DUFFY, J.P., REINALDO E. RIVERA, LINDA CHRISTOPHER, HELEN VOUTSINAS, JJ.
DECISION & ORDER
In an action for a divorce and ancillary relief, the plaintiff appeals, and the defendant cross-appeals, from stated portions of a judgment of divorce of the Supreme Court, Nassau County (Jeffrey A. Goodstein, J.), dated November 15, 2019. The judgment of divorce, insofar as appealed from, upon a decision of the same court dated August 7, 2019, made after a nonjury trial, inter alia, (1) awarded the defendant maintenance in the sum of $12,000 per month for a period of nine years, based on income imputed to the defendant in the amount of only $40,000 per year and income imputed to the plaintiff of $375,000 per year, (2) awarded the defendant 33% of the fair market value of the plaintiff's dental practice, (3) awarded the defendant pendente lite arrears in the sum of $29,245.76, (4) awarded the defendant counsel fees in the sum of $55,000, (5) failed to equitably distribute the funds in the defendant's T.D. Ameritrade account, and (6) failed to equitably distribute certain marital personal property. The judgment of divorce, insofar as cross-appealed from, inter alia, (1) awarded the defendant counsel fees in the sum of only $55,000, (2) awarded the defendant pendente lite arrears in the sum of only $29,245.76, (3) failed to award the defendant a separate property credit for a $100,000 mortgage payment made toward the mortgage on the marital residence, (4) failed to award the defendant a separate property credit with regard to the down payment on the marital residence, (5) failed to award the defendant a separate property credit with regard to the down payment on the plaintiff's dental practice, and (6) awarded the plaintiff one half of the defendant's Morgan Stanley IRA account.
ORDERED that the judgment of divorce is modified, on the law, on the facts, and in the exercise of discretion, (1) by adding a provision thereto providing that the proceeds of the T.D. Ameritrade account be equally divided between the parties, and (2) by deleting the provision thereof awarding the defendant $29,245.67 in pendente lite arrears; as so modified, the judgment of divorce is affirmed insofar as appealed and cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for a hearing to determine the amount of pendente lite arrears owed by the plaintiff and the entry of an appropriate amended judgment of divorce thereafter.
The parties were married in 1992, and have three children, who are now emancipated. The plaintiff commenced this action for a divorce and ancillary relief in January 2017. The plaintiff, who was 57 years old at the time of trial, is self-employed in a dental practice and was the primary wage earner during the parties’ 24–year marriage. The defendant was a homemaker and the primary caretaker of the parties’ children, and was not employed outside the home during the majority of the duration of the parties’ marriage. After a nonjury trial with respect to, inter alia, maintenance and the equitable distribution of certain assets, a judgment of divorce dated November 15, 2019, was entered. The plaintiff appeals, and the defendant cross-appeals, from stated portions of the judgment of divorce.
Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in imputing income to him in the amount of $375,000 per year. In determining a party's maintenance obligation, " ‘[a] court is not bound by a party's account of his or her own finances, and where a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed’ " ( Castello v. Castello, 144 A.D.3d 723, 725, 41 N.Y.S.3d 250, quoting Scammacca v. Scammacca, 15 A.D.3d 382, 382, 790 N.Y.S.2d 482 ). Here, the record, including evidence of the parties’ expenses and lifestyle over the course of the marriage, supports the court's determination to impute an annual income of $375,000 to the plaintiff (see Castello v. Castello, 144 A.D.3d at 725, 41 N.Y.S.3d 250 ). Moreover, the court providently exercised its discretion in imputing income of only $40,000 per year to the defendant. The evidence established that while the defendant had earned two master's degrees over the course of the marriage, she was only employed outside the home for a brief time during the 24–year marriage during which time her earnings were not substantial (see Matter of Saladino v. Saladino, 115 A.D.3d 867, 868, 982 N.Y.S.2d 360 ).
As this action was commenced after January 23, 2016, it is governed by certain amendments to the calculation of postdivorce maintenance set forth in Part B of section 236 of the Domestic Relations Law (see L 2015, ch 269, § 4). Where, as here, the payor's income exceeds the statutory income cap of $184,000 (see Domestic Relations Law § 236[B][6][b][4] ), the court shall determine the guideline amount of postdivorce maintenance by performing the calculations set forth in Domestic Relations Law § 236(B)(6)(c), and then shall determine whether to award additional maintenance for income exceeding the cap by considering the factors set forth in Domestic Relations Law § 236(B)(6)(e)(1) and setting forth the factors it considered (see Domestic Relations Law § 236[B][6][d][1]-[3] ). " ‘The amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its unique facts’ " ( Mahoney v. Mahoney, 197 A.D.3d 638, 639–640, 152 N.Y.S.3d 727, quoting Culen v. Culen, 157 A.D.3d 926, 928, 69 N.Y.S.3d 702 ). Here, considering the relevant factors, including, inter alia, the age of the parties, their present and future earning capacities, the defendant's loss of medical insurance, the standard of living the parties established during the marriage, and the equitable distribution of the marital assets, the award of maintenance to the defendant in the sum of $12,000 per month for a period of nine years was a provident exercise of discretion (see Domestic Relations Law § 236[B][6][e][1] ; Mahoney v. Mahoney, 197 A.D.3d at 640, 152 N.Y.S.3d 727 ). Moreover, the award was not improper even though it exceeded the amount the defendant requested in her statement of proposed disposition (see 22 NYCRR 202.16 [h]; see generally McSparron v. McSparron, 190 A.D.2d 74, 80, 597 N.Y.S.2d 743 ). The court rule which requires the submission of a statement of proposed disposition does not abrogate judicial statutory authority to determine the amount of maintenance (see generally N.Y. Const art VI, § 30 ; People v. Ramos, 85 N.Y.2d 678, 687–688, 628 N.Y.S.2d 27, 651 N.E.2d 895 ).
"A trial court is vested with broad discretion in making an equitable distribution of marital property, and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed" ( Aloi v. Simoni, 82 A.D.3d 683, 685, 918 N.Y.S.2d 506 [internal quotation marks omitted]). " ‘Equitable distribution is based on the premise that a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner or homemaker’ " ( Repetti v. Repetti, 147 A.D.3d 1094, 1098, 47 N.Y.S.3d 447, quoting K. v. B., 13 A.D.3d 12, 17, 784 N.Y.S.2d 76 [internal quotation marks omitted]). " ‘The distribution of marital assets depends not only on the financial contribution of the parties but also on a wide range of nonremunerated services to the joint enterprise, such as homemaking, raising children and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home’ " ( Repetti v. Repetti, 147 A.D.3d at 1098, 47 N.Y.S.3d 447, quoting K. v. B., 13 A.D.3d at 17, 784 N.Y.S.2d 76 [internal quotation marks omitted]).
Contrary to the plaintiff's contention, the Supreme Court providently exercised its discretion in awarding the defendant 33% of the value of the plaintiff's dental practice (see Repetti v. Repetti, 147 A.D.3d at 1098, 47 N.Y.S.3d 447 ; Elias v. Elias, 101 A.D.3d 938, 939, 957 N.Y.S.2d 231 ; Kaplan v. Kaplan, 51 A.D.3d 635, 637, 857 N.Y.S.2d 677 ). The 33% share accounts for the defendant's direct and indirect contributions, including that of primary caretaker of the parties’ three children (see Repetti v. Repetti, 147 A.D.3d at 1098, 47 N.Y.S.3d 447 ; Katz v. Katz, 153 A.D.3d 912, 914, 60 N.Y.S.3d 418 ). Moreover, contrary to the plaintiff's contention, the court did not overvalue the plaintiff's dental practice by applying a 35% capitalization rate. "Valuation is an exercise properly within the fact-finding power of the trial court, guided by expert testimony" ( Wasserman v. Wasserman, 66 A.D.3d 880, 882, 888 N.Y.S.2d 90 ; see Davenport v. Davenport, 199 A.D.3d 637, 639–640, 158 N.Y.S.3d 116 ). Here, the court appointed forensic expert, Douglas Sosnowski, explained that the capitalization rate for professional service companies is typically 33.33%, and that he applied a slightly higher capitalization rate to account for the "slightly above-average risk" associated with the plaintiff's dental practice, and the court providently exercised its discretion in crediting the expert (see Kattan v. Kattan, 202 A.D.3d 771, 776, 163 N.Y.S.3d 170 ). Additionally, the plaintiff's contention that Sosnowski was not qualified as an expert in the area of valuing dental equipment is waived because he did not object on that ground at trial (see Matter of...
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