Wasserman v. Wasserman
| Citation | 2009 NY Slip Op 7623,888 N.Y.S.2d 90,66 A.D.3d 880 |
| Decision Date | 20 October 2009 |
| Docket Number | 2008-05836. |
| Parties | MARK A. WASSERMAN, Appellant-Respondent, v. JOANN WASSERMAN, Respondent-Appellant. |
| Court | New York Supreme Court Appellate Division |
Ordered that the judgment is modified, on the law and the facts, by deleting the provision thereof directing the plaintiff to pay the sum owed on the distributive award to the defendant in three equal installments, six months apart, and substituting therefor a provision directing the plaintiff to pay the sum owed on the distributive award to the defendant in six equal installments, six months apart, with interest at the rate of 9% from the date of the judgment until the balance is paid; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.
The plaintiff and the defendant were married on July 6, 1979. The plaintiff is 65 years old and the defendant is 57 years old. During the course of their marriage, the parties had two children, who are emancipated.
In 1979, shortly before the birth of their first child, the plaintiff became the sole source of financial support for the family. The defendant was a stay-at-home mother prior to the commencement of this divorce action. In 2002 the defendant graduated from SUNY Purchase with a BA degree. In November 2003 she became a licensed real estate broker.
The parties were divorced by judgment dated May 22, 2008. The defendant was awarded, inter alia, 50% of the value of the plaintiff's businesses and 50% of the value of the marital premises, and maintenance in the sum of $10,000 per month for the two years immediately following the judgment of divorce, the sum of $7,500 per month for the next three years, and the sum of $5,000 per month for three years after that.
The Supreme Court properly relied upon the opinion of the defendant's expert regarding the value of the plaintiff's business interests. In a nonjury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion (see Ivani v Ivani, 303 AD2d 639 [2003]; L'Esperance v L'Esperance, 243 AD2d 446 [1997]). There is no uniform rule for fixing the value of a business for the purpose of equitable distribution. Valuation is an exercise properly within the fact-finding power of the trial court, guided by expert testimony (see Ivani v Ivani, 303 AD2d at 639; L'Esperance v L'Esperance, 243 AD2d at 446). The determination of the factfinder as to the value of a business, if within the range of the testimony presented, will be accorded deference on appeal if it rests primarily on the credibility of expert witnesses and their valuation techniques (see Ivani v Ivani, 303 AD2d at 639; L'Esperance v L'Esperance, 243 AD2d 446 [1997]). Here, the record supports the Supreme Court's determination as to the value of the plaintiff's business.
Considering the circumstances of the case, the Supreme Court providently exercised its discretion in awarding the defendant 50% of the value of the plaintiff's businesses (see Domestic Relations Law § 236 [B] [5] [d] [6], [13]). The fact that the plaintiff may have made greater economic contributions to the marriage than the defendant does not necessarily mean that he was entitled to a greater percentage of the marital property (see Price v Price, 69 NY2d 8 [1986]; Rose v Rose, 18 AD3d 852 [2005]). However, the plaintiff's financial statements indicate that he cannot pay the distributive award in only three installments, six months apart, without liquidating his assets. Therefore, we modify to direct that he make six equal installment payments to the defendant, each six months apart, with interest at the rate of 9% from the date of the judgment until the balance is paid (see Schussler v Schussler, 109 AD2d 875, 877 [1985]; Basile v Basile, 199 AD2d 649, 652 [1993]; Bohnsack v Bohnsack, 185 AD2d 533, 536 [1992]).
The Supreme Court providently exercised its discretion in determining an appropriate maintenance award. "`[T]he amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts'" (DiBlasi v DiBlasi, 48 AD3d 403, 404 [2008], quoting Wortman v Wortman, 11 AD3d 604, 606 [2004]). "`In determining the appropriate amount and duration of maintenance, the court is required to consider, among other factors, the standard of living of the parties during the marriage and the present and future earning capacity of both parties'" (DiBlasi v DiBlasi, 48 AD3d at 404, quoting Haines v Haines, 44 AD3d 901, 902 [2007]; see Domestic Relations Law § 236 [B] [6] [a]). While the Supreme Court properly found that the defendant was capable of earning a living, "the wife's ability to become self-supporting with respect to some standard of living . . . in no way . . . obviates the need for the court to consider the predivorce standard of living" (Hartog v Hartog, 85 NY2d 36, 52 [1995]; see ...
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