Vertucci v. Vertucci

• Decision Date: 21 February 2013
• Citation: 962 N.Y.S.2d 382,2013 N.Y. Slip Op. 01115,103 A.D.3d 999
• Parties: Richard VERTUCCI, Appellant–Respondent, v. Sherri VERTUCCI, Respondent–Appellant.
• Court: New York Supreme Court — Appellate Division

103 A.D.3d 999

962 N.Y.S.2d 382

2013 N.Y. Slip Op. 01115

Richard VERTUCCI, Appellant–Respondent,

v.Sherri VERTUCCI, Respondent–Appellant.

Supreme Court, Appellate Division, Third Department, New York.

Feb. 21, 2013.

Assaf & Siegal, PLLC, Albany (David M. Siegal of counsel), for appellant–respondent.

Sherri Vertucci, Amsterdam, respondent–appellant pro se.

Before: PETERS, P.J., LAHTINEN, GARRY and EGAN JR., JJ.

LAHTINEN, J.

Cross appeals from a judgment of the Supreme Court (Reilly Jr., J.), entered October 4, 2011 in Montgomery County, among other things, ordering equitable distribution of the parties' marital property, upon a decision of the court.

The parties were married in August 1988, they are the parents of three children (born in 1991, 1995 and 1998), and this divorce action was commenced in August 2007. Plaintiff (hereinafter the husband) owns 49% of the shares in Gabriel Contractors, which was started in the 1950s by his now deceased father, Gabriel Vertucci. He co-owns the company with his brother, Terence Vertucci. The value of the husband's share in this business as of the commencement date of the divorce action was agreed to be $490,000. He also operates a car wash business known as Robo North, which is marital property comprised of two corporations, RAJ Realty, Inc. and Robo North Self Service, Inc., with a stipulated combined fair market value of $1,250,000 minus indebtedness. Defendant (hereinafter the wife) is an attorney whose third year of law school occurred during the marriage and who established a private practice while married. The expert retained by the parties valued her enhanced earning capacity attributable to her law degree as $398,000, with $131,000 as the marital portion, and the value of her practice as of August 2007 was set at $92,000. They owned a marital home with an agreed value of $600,000 that was encumbered by a mortgage and home equity loan. They also owned various other assets. In 2008, the husband's adjusted gross income was $313,822 and the wife's was $98,426.

The husband brought this action seeking a divorce on the ground of abandonment and the wife counterclaimed asserting, among other things, cruel and inhuman treatment. The parties stipulated to some issues, including that the wife would receive the marital home and the husband would receive Robo North, both subject to various adjustments in value. Despite the stipulation, a multi-day trial was necessary on numerous issues.

Supreme Court granted the wife a divorce on the ground of the husband's cruel and inhuman treatment. After deducting for debt, determining valuation issues, and addressing assertions regarding separate property, Supreme Court made a gross distributive award to the wife of $618,850.50, which was comprised of her distributive portion of Robo North ($434,414.50), Gabriel Contractors ($173,186.00) and two parcels ($3,750 and $7,500). Credits reducing the wife's distributive award totaled $230,109.60, consisting of the husband's share of the marital residence ($188,164.82), the wife's law license and enhanced earnings ($33,450.00), 24% of the oldest child's college expenses ($6,407.28) and an agreed forensic fee ($2,087.50). The court also awarded the wife one half the value, to be determined, of a sealer trailer. The distributive award of $388,740.90 (plus one half the sealer trailer) was to be paid in monthly installments over six years. Additionally, property where a former car wash had been located had been sold during the time that this action was pending and the proceeds held in escrow. Supreme Court determined that this was marital property and directed that the wife receive $10,766.46, which was one half of the amount held in escrow.

The husband was directed to pay weekly child support of $350 for the youngest child, who was the only child living with the wife. The wife sought reimbursement for counsel fees of $85,000 that she had incurred before undertaking her own representation. Supreme Court awarded her $25,000 in counsel fees. Both parties appeal raising issues about the grounds of the divorce, distribution of property, counsel fees and child support.

First we address the grounds argument. The husband contends that he should have been granted a divorce on the ground of abandonment. We are not persuaded. Conflicting proof at trial on the competing fault grounds alleged by the parties created credibility issues. Supreme Court, as the trier of fact, is “given great deference in the resolution of credibility issues” ( Delliveneri v. Delliveneri, 274 A.D.2d 798, 798, 710 N.Y.S.2d 737 [2000],lv. denied95 N.Y.2d 767, 717 N.Y.S.2d 547, 740 N.E.2d 653 [2000];see Holmes v. Holmes, 25 A.D.3d 931, 932, 807 N.Y.S.2d 217 [2006] ). The court, noting that there were elements of truth in each party's testimony, described the difficult and close issue it faced based on the proof presented. The proof regarding grounds was sometimes salacious and often demeaning of the other party revealing a marriage that, as stated by Supreme Court, had emotionally ended long before this action was commenced. Supreme Court set forth in ample detail its findings and its reason for granting a divorce to the wife based upon the husband's cruel and inhuman treatment. Deferring to Supreme Court's credibility determinations in making those findings, the record supports its decision.

Both parties assert numerous challenges to various aspects of Supreme Court's distributive award. Some established general principles are pertinent to many of the parties' arguments. “ ‘[T]here is no requirement that the distribution of each item of marital property be on an equal or 50–50 basis' ” ( Quinn v. Quinn, 61 A.D.3d 1067, 1069, 876 N.Y.S.2d 720 [2009], quoting Arvantides v. Arvantides, 64 N.Y.2d 1033, 1034, 489 N.Y.S.2d 58, 478 N.E.2d 199 [1985] ). “A trial court has substantial discretion to fashion such awards based on the circumstances of each case, and the determination will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors” ( Williams v. Williams, 99 A.D.3d 1094, 1096, 952 N.Y.S.2d 662 [2012] [citations omitted]; see Keil v. Keil, 85 A.D.3d 1233, 1234, 926 N.Y.S.2d 173 [2011] ). Credibility determinations by the trial court are accorded deference ( see e.g. Lurie v. Lurie, 94 A.D.3d 1376, 1378, 943 N.Y.S.2d 261 [2012] ).

The husband argues that a $100,000 loan from Gabriel Contractors should have been calculated as a marital debt, which can serve as an “offset against the total marital assets to be divided” ( Jonas v. Jonas, 241 A.D.2d 839, 840, 660 N.Y.S.2d 487 [1997] [internal quotation marks and citation omitted] ). He related that he asked his father for money and, even though his father was no longer an officer or shareholder of Gabriel Contractors, his father gave him a check from the company in 2004 for $100,000. There were no written terms and the oral condition reportedly was that his father “want[ed] some of it back” when he got back “on [his] feet.” The absence of written documentation and the ambiguous nature of the alleged oral terms essentially created a credibility question. There is no reason in this record not to accept Supreme Court's credibility determination and its resolution of this issue. The husband's further contention that his interest in Gabriel Contractors should have thus been recalculated based on the $100,000 is unavailing. The parties set forth stipulated values regarding Gabriel Contractors and Supreme Court used the figures provided by the parties.

The wife asserts that all of the husband's interest in Gabriel Contractors should have been classified as marital property. We cannot agree. Supreme Court found that the husband's 49% interest was a gift to him from his father and that he had obtained such interest by 1988 to 1990. Using stipulated figures, the court awarded the wife $173,186 for the company's appreciation thereafter during the marriage. While the husband's father ostensibly ran aspects of the company in a rather informal fashion, creating a lack of pertinent contemporaneous written documents, there was nevertheless sufficient testimony and evidence supporting Supreme Court's determination.

While this action was pending, the husband and his brother sold property they owned on Edson Street in the City of Amsterdam, Montgomery County. The husband's share of the sale proceeds was $21,532.92, which was held in escrow by his attorney. He argues that Supreme Court erred in finding that this was marital property and directing that the wife receive one half ($10,766.46). The parcel was acquired in 1992, which was during the marriage, and thus it was presumptively marital property ( see Batease v. Batease, 71 A.D.3d 1344, 1345, 897 N.Y.S.2d 305 [2010];Dashnaw v. Dashnaw, 11 A.D.3d 732, 733, 783 N.Y.S.2d 93 [2004] ). No transfer tax was paid for the transaction, and the husband testified that the property was a gift from his father. The wife, however, testified to seeing the husband with “bundles of cash” for his father, and it is undisputed that marital funds were used for various expenses related to the Edson Street property. Under such circumstances,we are not persuaded that Supreme Court erred in determining that the husband failed to rebut the marital property presumption.

The husband asserts that he contributed $97,500 of his separate property toward the purchase of land for the marital residence and that he used $55,000 of separate property toward construction costs. The purchase of the land and the constructing of the house occurred during the marriage and, thus, the residence and land were presumptively entirely marital property. Based on its assessment of the evidence presented, Supreme Court determined that the husband failed to prove that separate funds were used to purchase and construct the marital residence. Further, the partial use of separate funds to acquire a marital asset does not mandate that a credit for...