Vail-Beserini v. Beserini

• Decision Date: 06 March 1997
• Docket Number: R,VAIL-BESERIN
• Citation: 237 A.D.2d 658,654 N.Y.S.2d 471
• Parties: Leslieespondent-Appellant, v. Wahid A. BESERINI, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 471

654 N.Y.S.2d 471

237 A.D.2d 658

Leslie VAIL-BESERINI, Respondent-Appellant, v. Wahid A. BESERINI, Appellant-Respondent.

Supreme Court, Appellate Division,

Third Department.

March 6, 1997.

D'Agostino, Hoblock, Greisler & Siegal P.C. (David M. Siegal, of counsel), Albany, for appellant-respondent.

Bressler, Amery & Ross P.C. (David H. Pikus, of counsel), New York City, for respondent-appellant.

Before MIKOLL, J.P., and MERCURE, CREW, YESAWICH and PETERS, JJ.

MIKOLL, Justice Presiding.

Cross appeals from a judgment of the Supreme Court (Kahn, J.) ordering, inter alia, equitable distribution of the parties' marital property, entered November 30, 1995 in Albany County, upon a decision of the court.

The parties were married on September 7, 1985 and had no children. Plaintiff met defendant in 1980 when she was employed as a practical nurse in defendant's office, W.A. Beserini, M.D., P.C. (hereinafter WAB), where he practiced as a cardiologist. Plaintiff became a registered nurse in 1983. In 1990 defendant merged his office into Albany Associates in Cardiology (hereinafter AAC).

Plaintiff commenced this action for divorce in October 1992 and defendant counterclaimed for divorce the following month. Supreme Court entered a dual judgment of divorce on the ground of cruel and inhuman treatment based on the admissions of the parties. The judgment of divorce contained the following rulings and awards regarding distribution of the assets of the parties: awarded the marital residence to defendant as separate property since as it was purchased by defendant prior to the marriage; dismissed that portion of plaintiff's complaint requesting imposition of a constructive trust on that property; awarded plaintiff 40% of the appreciation in value of defendant's medical practice, totaling $292,400; awarded plaintiff a horse farm known as the October Hill Farm (including the marital personal property in the farm) purchased with marital assets and valued at $182,000; ordered that proceeds of the sale of another horse farm, the Congress Hill Farm, valued at $238,000, be used to pay off the purchase money loan secured by the marital residence and ordered the balance to be equally divided between the parties; awarded plaintiff horses Teason and Chad, which were unvalued; awarded defendant horses Hassan, Ode and Porsche, which were also unvalued; held that the IRA account held in plaintiff's name (and rolled over to the WAB pension plan), valued at $104,296.33, be distributed to plaintiff; that maintenance in the sum of $4,500 per month be paid to plaintiff for four years; and that defendant pay plaintiff $50,000 for counsel fees and $17,069 for accounting fees. The parties each appeal.

Both parties contend that Supreme Court erred in its findings regarding the increased value of defendant's medical practice. Although Supreme Court's findings are not sufficiently developed to permit review of that court's calculations and dispositions on this issue (see, Cerretani v. Cerretani, 221 A.D.2d 814, 816, 634 N.Y.S.2d 228; De Santis v. De Santis, 205 A.D.2d 928, 929-930, 613 N.Y.S.2d 737), we find that the record is adequate to permit this court to determine the value of the medical practice de novo and we will do so in the exercise of our discretion and in the interest of judicial economy (see, White v. White, 204 A.D.2d 825, 827, 611 N.Y.S.2d 951, lv. denied 84 N.Y.2d 977, 622 N.Y.S.2d 916, 647 N.E.2d 122). We find as credible and persuasive the calculations and conclusions reached by plaintiff's expert accountant witness as to the appreciation in the value of defendant's medical practice except as noted infra. The conclusions and opinion of defendant's expert witness, with the exception noted, are insufficient to invalidate those of plaintiff's expert who concluded that the fair market value of defendant's interest in WAB (professional goodwill only) on September 7, 1985 was $107,000, his one-seventh interest in AAC on October 29, 1992 was $1,364,000, and the increase in the appreciation of value of defendant's interest in AAC in excess of the value of his interest in WAB on September 7, 1985 was $1,257,000. Plaintiff's expert also found that the fair market value of defendant's one-seventh interest in Albany Associates, Brown and Odabashian, P.C. (hereinafter BOC) on October 29, 1992 was $90,808. Both experts used the capitalization method to determine excess earnings to ascertain the goodwill of the practice.

However, we find that plaintiff's valuation of defendant's medical practice as of September 7, 1985 was understated due to his failure to include in his calculations the current assets of WAB ($225,000), his salary for 1985 ($202,000), his salary from St. Mary's Hospital ($75,000) and his pension contribution ($110,000), for a total practice income of $612,000 in addition to the goodwill allowance of $107,000.

Thus, the valuation of defendant's medical practice as of September 7, 1985 is $612,000 plus the $107,000 in goodwill or $719,000. The valuation of defendant's practice as of October 28, 1992 is $1,364,000 plus his interest in BOC of $90,000, totaling $1,454,000. Accordingly, the appreciation in value of plaintiff's medical practice is $735,000 and plaintiff is entitled to 40% of the $735,000 or $294,000 as a distributive award for the appreciation in value.

Both parties dispute Supreme Court's award of 40% of the increased value of defendant's medical practice to plaintiff; plaintiff asserts that she should have been awarded 50% of the increased value while defendant maintains that she is entitled to only 25%. Review of the record reveals that neither party has shown that Supreme Court abused its discretion in granting plaintiff 40% of the increased value (see, Carpenter v. Carpenter, 202 A.D.2d 813, 814, 608 N.Y.S.2d 751; Reina v. Reina, 153 A.D.2d 775, 777, 544 N.Y.S.2d 895). The court properly considered the relevant factors in arriving at its conclusion, i.e., the parties age and health (see, Domestic Relations Law § 236[B][5][d][2] ), as well as their joint efforts or expenditures and contributions and each of their respective services as a spouse, parent, wage earner and homemaker, and the career or career potential of plaintiff (see, Domestic Relations Law § 236[B][5][d][6] ). Thus, plaintiff was properly awarded 40% of $735,000, that is, $294,000.

Plaintiff's claim that Supreme Court erred in awarding the marital residence and its entire value to defendant because a portion of the house is marital property as mortgage payments were made with marital assets, is without merit. Marital funds used to pay off the debt on separate property are to be credited to the marital estate only where the indebtedness was the result of expenditures for improvements or renovations to the separate property. This is not the case here and therefore the rule does not apply (see, Ramsey v. Ramsey, 226 A.D.2d 989, 990, 641 N.Y.S.2d 194, 195; Micha v. Micha, 213 A.D.2d 956, 957, 624 N.Y.S.2d 465; Carney v. Carney, 202 A.D.2d 907, 908, 609 N.Y.S.2d 425). Accordingly, Supreme Court's award of the marital residence to defendant is not improper.

Plaintiff's alternative argument that Supreme Court improperly dismissed her cause of action to impose a constructive trust on the marital residence is rejected. Plaintiff has failed to demonstrate that the requirements for imposition of a constructive trust exist. There is no showing that any discernable injustice was involved (see, Simonds v. Simonds, 45 N.Y.2d 233,...