Roffey v. Roffey

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: SPAIN
• Citation: Roffey v. Roffey, 630 N.Y.S.2d 114, 217 A.D.2d 864 (N.Y. App. Div. 1995)
• Decision Date: 27 July 1995
• Parties: Natalie ROFFEY, Respondent, v. David ROFFEY, Appellant.

Page 114

630 N.Y.S.2d 114

217 A.D.2d 864

Natalie ROFFEY, Respondent, v. David ROFFEY, Appellant.

Supreme Court, Appellate Division Third Department.

July 27, 1995.

Vitanza, Shabus & Fertig (Cynthia J. Cornaire of The Tippins Law Firm, Troy, of counsel), Norwich, for appellant.

Charles Weinberg, Norwich, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, PETERS and SPAIN, JJ.

SPAIN, Justice.

Appeals (1) from a judgment of the Supreme Court (Tait Jr., J.) ordering, inter alia, equitable distribution of the parties' marital property, entered April 8, 1994 in Chenango County, upon a decision of the court, and (2) from an order of said court, entered August 16, 1994 in Chenango County, which held defendant in contempt for his willful failure to perform the terms and directions of a judgment of divorce.

In 1967 the parties were married; they moved to New York in 1971 and settled in Chenango County where defendant began a veterinary practice. The success of his practice led to the creation of an animal embryo transplant business and other related ventures. In 1985 defendant sold his veterinary practice and in 1988 he purchased an asbestos removal business. He then left plaintiff and the marital residence and moved to Syracuse to manage the new business. This matrimonial action was commenced by plaintiff in 1992. Throughout their 27-year marriage, the parties cooperated in the operation of the various ventures. Plaintiff, a college graduate who worked as a schoolteacher for only one year, became a full-time mother and homemaker who also, in some measure, contributed directly to the business ventures. The parties enjoyed a comfortable lifestyle including vacations and expensive cars as well as private schooling and college educations for their two children. After a nonjury trial Supreme Court, by judgment entered April 8, 1994, granted a divorce to plaintiff on stipulated grounds and ordered, inter alia, equitable distribution including a distributive award of $250,000 payable over a period of 10 years and nondurational maintenance in the amount of $1,500 per month. Defendant appeals.

Thereafter, in July 1994, plaintiff moved for an order holding defendant in contempt of court for allegedly violating several aspects of the judgment. Supreme Court granted plaintiff's motion, holding defendant in contempt and imposing certain conditions in order for defendant to purge himself of the order of contempt. Defendant also appeals from that order. This court granted defendant's motion to consolidate the appeals. After the appeals were perfected, plaintiff moved to dismiss defendant's appeals on the ground that, by accepting and disposing of benefits distributed to him in the equitable distribution award, defendant waived his right to appeal.

Supreme Court, as part of its equitable distribution, awarded defendant, inter alia, a sailboat valued at $7,000 and three corporations through which he operated the asbestos removal business. Within a short time after filing his notice of appeal, defendant traded-in the sailboat for a larger boat. Additionally, before the commencement of the October 1993 trial, defendant merged two of the three corporations eventually awarded to him by Supreme Court; to wit, Upstate Asbestos Services Inc., valued by Supreme Court at $280,782, and Upstate Amalgamated Services Inc., valued by Supreme Court at $96,000, which were merged into a new corporation named Upstate Environmental Services Inc. Information concerning the value, ownership and control of this new corporation was not disclosed during the trial.

It is a general rule of law that the right to appeal from a judgment or order may be waived or relinquished by acceptance of a benefit under such judgment or order. The rationale behind this principle is that one may not receive the benefits of a judgment or order and at the same time challenge it by seeking appellate review (see, Cohen v. Cohen 3 N.Y.2d 339, 346, 165 N.Y.S.2d 452, 144 N.E.2d 355). The basis for the rule lies in the concern that the appellant's appeal may lead to a result showing that he or she is not entitled to that which he or she has already received (see, 4 Am.Jur.2d, Appeal and Error, § 251, at 746). Therefore, if the outcome of the appeal could have no effect on the appellant's right to the benefit he or she accepted, its acceptance should not preclude the appeal (see, id., § 253, at 748). "There is nothing inconsistent in a party's accepting the benefit of a judgment * * * and appealing in an attempt to increase the award" (Cornell v. T.V. Dev. Corp., 17 N.Y.2d 69, 73, 268 N.Y.S.2d 29, 215 N.E.2d 349; see, Alexsey v. Kelly, 205 A.D.2d 649, 650, 614 N.Y.S.2d 734).

Plaintiff asserts that by trading in his boat and merging the corporations, defendant "received the benefits" of the judgment he is appealing from. In Elias v. Elias, 187 A.D.2d 999, 590 N.Y.S.2d 648, the Fourth Department held that the husband, by accepting and disposing of two parcels of real estate awarded to him as part of his share of the equitable distribution of the marital estate, was "precluded from contesting on appeal the equitable distribution provisions of the judgment" (id., at 1000, 590 N.Y.S.2d 648; see, Harris v. Resnikoff, 118 A.D.2d 622, 499 N.Y.S.2d 773).

In reviewing awards of equitable distribution, the authority of the Appellate Division is as broad as that of the trial judge (see, Majauskas v. Majauskas, 61 N.Y.2d 481, 493-494, 474 N.Y.S.2d 699, 463 N.E.2d 15). By appealing, defendant has opened for review the award of all assets under Supreme Court's equitable distribution judgment and his appeal, therefore, could result in a significant redistribution of the marital assets, including assets defendant has already received and converted (compare, Matter of Fleischer, 126 A.D.2d 805, 807, 510 N.Y.S.2d 306). Because he has accepted and disposed of the sailboat and because he has accepted and transformed two of the three marital corporations into a single new corporation, defendant has put the property disposed of out of the reach of the court should a different equitable distribution formula be determined appropriate. It is significant that in this particular case there was very little liquidity among the marital assets. We conclude that defendant should be precluded from contesting on appeal the equitable distribution provisions of the judgment. Accordingly, plaintiff's motion to dismiss that portion of the appeal is hereby granted. While it is not necessary to discuss the merits of defendant's objections to Supreme Court's award of equitable distribution, we nevertheless conclude, after a thorough review of the record in this case, that defendant's contentions are without merit and that Supreme Court did not abuse its broad discretion; Supreme Court's award should not be disturbed (see, Majauskas v. Majauskas, supra, at 493-494, 474 N.Y.S.2d 699, 463 N.E.2d 15).

Defendant further contends that Supreme Court erred in awarding plaintif...