Suydam v. Suydam

• Decision Date: 21 April 1994
• Citation: Suydam v. Suydam, 610 N.Y.S.2d 976, 203 A.D.2d 806 (N.Y. App. Div. 1994)
• Parties: Michael J. SUYDAM, Respondent, v. Ann E. SUYDAM, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 976

610 N.Y.S.2d 976

203 A.D.2d 806

Michael J. SUYDAM, Respondent, v. Ann E. SUYDAM, Appellant.

Supreme Court, Appellate Division Third Department.

April 21, 1994.

Van De Water & Van De Water (Susanna E. Bedell, of counsel), Poughkeepsie, for appellant.

Howard J. Pobiner, White Plains, for respondent.

Before CARDONA, P.J., and MERCURE, WHITE, CASEY and WEISS, JJ.

WEISS, Justice.

Appeals (transferred to this court by order of the Appellate Division, Second Department) (1) from a judgment of the Supreme Court (Klein, J.H.O.) granting the parties a divorce, entered December 17, 1991 in Dutchess County, upon a decision of the court, and (2) from an order of said court, entered December 17, 1991 in Dutchess County, which distributed plaintiff's pension.

After granting mutual divorces, the Judicial Hearing Officer (hereinafter JHO) ordered equitable distribution of marital property, custody, child support and maintenance. Defendant has appealed from those portions of the judgment and order.

The parties were married on August 26, 1972 when both were without significant assets. Defendant was the sole wage earner while plaintiff finished his college education, earning a degree in physical therapy. Thereafter plaintiff completed the course work for a graduate degree in kinesiology. In 1979, with the assistance of defendant and loans from her family, plaintiff commenced private practice, ultimately producing yearly net profits of $120,000. ¹ The practice was conservatively appraised at $446,245. ² Although defendant has always been the primary care giver for the two children, she continued to be gainfully employed throughout the marriage, including work for plaintiff as secretary, bookkeeper and in his patient scheduling. During the 16-year marriage they accumulated a marital estate valued at $2,072,000.

The parties purchased the building in the Town of Fishkill, Dutchess County, where plaintiff practiced and both contributed to its renovation and enlargement to accommodate a physical fitness center operated by defendant in conjunction with plaintiff's therapy practice. The JHO concluded that defendant had a present earning capacity of $36,000 based on her employment as manager of the center.

We reject plaintiff's contention that the waste-antagonism-fault factor mentioned by the JHO (see, Domestic Relations Law § 236[B][5][d][11] somehow justifies the unequal distribution of the marital property (see generally, Blickstein v. Blickstein, 99 A.D.2d 287, 472 N.Y.S.2d 110), and note that the JHO did not specifically articulate it as a factor in the unequal distribution.

While property acquired during a marriage need not be distributed equally (see, Ackley v. Ackley, 100 A.D.2d 153, 156, 472 N.Y.S.2d 804, lv. dismissed 63 N.Y.2d 605, 481 N.Y.S.2d 1023, 471 N.E.2d 462; Rodgers v. Rodgers, 98 A.D.2d 386, 390-391, 470 N.Y.S.2d 401), marital property should be distributed equitably and in a manner reflecting the needs and the circumstances of the parties (Greenman v. Greenman, 175 A.D.2d 360, 572 N.Y.S.2d 95, lv. dismissed 78 N.Y.2d 1124, 578 N.Y.S.2d 880, 586 N.E.2d 63; Coffey v. Coffey, 119 A.D.2d 620, 622, 501 N.Y.S.2d 74). Each party should be entitled to receive an equitable award proportionate to his or her contribution to the marriage (Ullah v. Ullah, 161 A.D.2d 699, 700, 555 N.Y.S.2d 834, lv. denied 76 N.Y.2d 704, 559 N.Y.S.2d 983, 559 N.E.2d 677). There is no requirement that marital assets be liquidated (Greenman v. Greenman, supra ) or that each particular item be divided on an equal basis (Arvantides v. Arvantides, 64 N.Y.2d 1033, 1034, 489 N.Y.S.2d 58, 478 N.E.2d 199). However, where, as here, the marriage is of long duration, and where neither party entered the marriage with assets and both became full and contributing marital partners, the division should be made as equally as possible (see, Robertson v. Robertson, 186 A.D.2d 124, 126, 588 N.Y.S.2d 43; Bisca v. Bisca, 108 A.D.2d 773, 485 N.Y.S.2d 302, appeal dismissed 66 N.Y.2d 741, 497 N.Y.S.2d 365, 488 N.E.2d 111). It therefore was error for the JHO to distribute the marital property without the semblance of parity by giving plaintiff two thirds and defendant one third of the marital property.

We further find that the JHO erred in valuing the fitness center awarded to defendant at $50,000 based on fixed assets of $35,000 and the income estimates. ³ He failed to consider the equipment debt of $18,532 and monthly building expenses of $3,408, both charged against the fitness center, nor did he consider the fact that newer assets costing in excess of $15,000 were awarded defendant as separate property. Thereafter, the JHO separately awarded plaintiff one half of the equipment subject to a share of the debt but without assigning to him the value of that equipment. A more realistic value of the marital interest in the center awarded to defendant would be approximately $15,000 subject to the $9,286 of debt she was required to pay plaintiff, leaving the value of this asset awarded to her as $6,000 and a comparable share to plaintiff.

We next find that the JHO erroneously assessed defendant one half the expenses of $107,595 (erroneously shown as $111,003) on the Fishkill building incurred from January 1, 1989 to July 31, 1991, the date of his decision, and the further sum of $10,225 for August 1, 1991 to October 31, 1991, by which date the JHO ordered her to vacate the building, and additionally assessed defendant one half of the expense of the passive vacant land investment. Having found defendant's earning "capacity" to be $36,000 and plaintiff's annual income $120,000, it was error to charge defendant with expenses she could not possibly have paid during the litigation. We find it appropriate to award defendant's interest in the Fishkill business realty and two vacant land parcels to plaintiff and make a compensatory distributive award to defendant to achieve parity for those values. We further find that plaintiff's gun collection, omitted from his financial disclosure statement , had a net worth of $1,500 and that value should be assigned to his distributive share.

Having reached these conclusions, we find the record sufficient to enable this court to make an equitable distribution in the interest of judicial economy rather than to remit the case to the JHO. We accordingly distribute the marital estate and assign values as follows:

Item Credited to:                              Plaintiff   Defendant
                Marital Residence                                                       $70,712
                Commercial Building                                         $474,756
                Hamilton Rd. realty (rental)                                             71,250
                5.03 Acres (vacant land)                                     500,000
                11.8 Acres (vacant land)                                     178,044
                Hudson Valley Orthopedic                                     446,245
                Hudson Valley Fitness Center                                              6,000
                  (subject to 50% of equipment loan and division of
                  equipment)
                Fitness equipment award to plaintiff subject to 50% of         6,000
                  equipment loan
                1971 Glastron Boat                                                          500
                1985 Winner Pleasure Craft                                     3,625
                1988 Jeep                                                                17,000
                Ford Van (part of Hudson Valley Orthopedic)                Plaintiff
                Ford Taurus (separate property)                            Plaintiff
                Piano (separate property)                                  Plaintiff
                China Closet, Grandmother (separate property)              Plaintiff
                VCR--Camcorder (no value given)                            Plaintiff
                China & Glassware (no value given)                               50%        50%
                One (1) Bedroom Set (no value given)                       Plaintiff
                Jewelry (no value given)                                              Defendant
                Doll Collection valued at $400                                              400
                Mink Coat value $3,000                                         3,000
                Hummel Figurines $1,000                                                   1,000
                China Closet $250                                                           250
                Guns $1,500                                                    1,500
                Mid"Hudson Acct.             # 60600486                                   6,827
                Same                         # 8218088                           165        165
                Same                         # 6156519                           537        537
                Merrill Lynch                # 858"78987                                    486
                USAA                         # 39000102352                                4,787
                Mid"Hudson Acct.             # 616011322                                  2,900
                Same                         # 676000799                                    817
                Same                         # 616016895                                 15,119
                Merrill Lynch                # 858"21265                                 51,544
                Mid"Hudson Cert. of Deposit                                              25,000
                USAA (sep prop)              # 42900949732                            Defendant
                Reserve Fund                 # 191"00"698                     25,043
                Dutchess Bank                # 405"3501171                       435
                Shares Mid"Hudson                                                         6,319
                Shares Conn.  Power & Light                                                7,280
                Auric United Gold Coins                                       10,447     10,447
                Fidelity IRA                                                  26,111
                Penn Mutual Annuity                                           44,114
                Fidelity IRA                                                              4,030
                Fidelity Magellan                                                         4,874
                Gold Share Fund                                                           1,499
                Kemper UIT & Mutual

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