Petrie v. Petrie

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: MAIN
• Citation: Petrie v. Petrie, 507 N.Y.S.2d 550, 124 A.D.2d 449 (N.Y. App. Div. 1986)
• Decision Date: 30 October 1986
• Parties: Patricia R. PETRIE, Appellant, v. Kenneth T. PETRIE, Respondent.

Page 550

507 N.Y.S.2d 550

124 A.D.2d 449

Patricia R. PETRIE, Appellant, v. Kenneth T. PETRIE, Respondent.

Supreme Court, Appellate Division Third Department.

Oct. 30, 1986.

Grogan, Steenburg & Pentkowski (Dianne N. Freestone, of counsel), Clifton Park, for appellant.

Miller, Mannix, Lemery & Kafin (Benjamin R. Pratt, Jr., of counsel), Glens Falls, for respondent.

Before MAHONEY, P.J., and MAIN, CASEY, MIKOLL and HARVEY, JJ.

MAIN, Justice.

Appeal from a judgment of the Supreme Court ordering, inter alia, equitable distribution of the parties' marital property, entered November 4, 1985 in Saratoga County, upon a decision of the court at Trial Term (Shea, J.), without a jury.

Married in 1973, plaintiff and defendant are the parents of five children, born between February 1975 and August 1982. Throughout the marriage, defendant worked in several family-run retail stores and the time of trial was the manager of one such store in the Town of Corinth, Saratoga County. While plaintiff occasionally has done work for the retail store, primarily she has cared for the children and the household. In October 1982, defendant left the marital residence and established a separate residence. Thereafter, he voluntarily made payments to plaintiff in order to support the family.

Plaintiff initiated this action seeking, inter alia, divorce, custody of the children, child support, maintenance, equitable distribution and counsel fees. Trial Term granted the divorce, awarded custody of all the children to plaintiff and ordered defendant to pay child support of $35 per week per child until emancipation, maintenance of $150 per week for five years and counsel fees of $1,500. With regard to equitable distribution, Trial Term awarded plaintiff the marital residence and its furnishings valued at $25,000 and $4,000, respectively, a 1978 automobile valued at $1,000, $2,000 in cash and ordered defendant to give plaintiff a secured note in the amount of $35,000, payable over 20 years at 8% interest. Trial Term awarded defendant commercial property containing his family's retail business valued at $68,700, stock in Petrie's Value Village, another retail establishment valued at $6,250, a 1976 automobile valued at $1,000 and other assets not specifically mentioned. These included a net lease on the commercial property valued at $24,800, defendant's partnership interest in Petrie Properties valued at $2,000 and the cash value of two insurance policies valued at $800. Plaintiff was to be responsible for paying the two mortgages on the marital residence.

Plaintiff first contends that she was awarded less than her fair share of the marital property. We disagree. Equitable distribution presents matters of fact to be resolved by the trial court, and its distribution of the property should not be disturbed unless it can be shown that the court abused its discretion in so doing (Foxx v. Foxx, 114 A.D.2d 605, 494 N.Y.S.2d 446). Here, Trial Term did award assets totaling $32,000 to plaintiff and $103,550 to defendant; however, Trial Term also ordered defendant to give plaintiff a secured note in the amount of $35,000. Under Domestic Relations Law § 236(B)(5)(e), Trial Term may, in its discretion, make such a distributive award in order to facilitate the division of property (see, Majauskas v. Majauskas, 61 N.Y.2d 481, 489, 474 N.Y.S.2d 699, 463 N.E.2d 15). When the amount of the distributive award is added to plaintiff's assets and subtracted from defendant's assets, plaintiff receives $67,000 in assets and defendant receives $68,550 in assets. Thus, Trial Term effected an almost 50% split of the marital assets and did not abuse its discretion in employing a distributive award to do so. We would note that plaintiff's proposed distribution, essentially requiring a split of the major assets, is not as practical as that effectuated by Trial Term and is not required for an equitable distribution (see, Arvantides v. Arvantides, 64 N.Y.2d 1033, 489 N.Y.S.2d 58, 478 N.E.2d 199; Matter of Ward v. Ward, 94 A.D.2d 908, 463 N.Y.S.2d 634).

Contrary to plaintiff's assertion, we find that Trial Term neither overlooked assets nor improperly valued assets. Trial Term did not abuse its discretion in valuing defendant's commercial property at $68,700, the assessed full value, rather than $100,000, the insured value, since defendant testified that the property was insured for replacement cost rather than actual value. While we note that Trial Term incorrectly found defendant to be a one-quarter partner in Petrie Properties rather than a one-third partner, we also note that Trial Term overvalued this asset to plaintiff's advantage. Finally, Trial Term listed in its decision all the assets which plaintiff claims were overlooked and provided a residual clause by which assets not awarded to plaintiff were awarded to defendan...