Wilbur v. Wilbur

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MAIN; MAIN
• Citation: Wilbur v. Wilbur, 498 N.Y.S.2d 525, 116 A.D.2d 953 (N.Y. App. Div. 1986)
• Decision Date: 30 January 1986
• Parties: Alberta M. WILBUR, Appellant-Respondent, v. Ralph C. WILBUR, Respondent-Appellant.

Page 525

498 N.Y.S.2d 525

116 A.D.2d 953

Alberta M. WILBUR, Appellant-Respondent, v. Ralph C. WILBUR, Respondent-Appellant.

Supreme Court, Appellate Division Third Department.

Jan. 30, 1986.

Chernin & Gold (Bruno Colapietro, of counsel), Binghamton, for appellant-respondent.

Williamson & Clune (Robert J. Clune, of counsel), Ithaca, for respondent-appellant.

Before MAIN, J.P., and CASEY, MIKOLL, YESAWICH and HARVEY, JJ.

MAIN, Justice Presiding.

Cross appeals from a judgment of the Supreme Court granting defendant a divorce and ordering equitable distribution of the parties' marital property, entered September 13, 1984 in Tompkins County, upon a decision of the court at Trial Term (Bryant, J.), without a jury.

Alleging adulterous conduct on the part of defendant, plaintiff commenced this action for divorce in February 1981. During the trial that followed, the parties stipulated that plaintiff would discontinue her divorce action based upon adultery and that defendant would be allowed to proceed with a divorce action based on abandonment. The parties' stipulation also provided that fault was not to be considered by the court either in the divorce action or in the determination of equitable distribution and maintenance. Thereafter, Trial Term granted defendant a divorce on the ground of abandonment and decided issues of equitable distribution and maintenance. These cross appeals ensued.

First, plaintiff argues that Trial Term erred in assigning a zero value to the stock in defendant's business. The stock in question consists of 25 shares in Wilbur Lumber Company, Inc., a lumber business run by defendant. That business had been given to defendant by his father in 1969 and was not incorporated until May 1980, at which time the 25 shares in question were issued. According to plaintiff's expert witness, who employed a capitalization of earnings method of valuation, the 25 shares of stock were worth $650,806. Defendant's expert, on the other hand, testified that the true value of a closely held corporation such as Wilbur Lumber Company, Inc. is the value of its assets as reduced by its liabilities. In this case, liabilities exceeded assets by $6,000. It was the testimony of defendant's expert witness on which Trial Term relied in arriving at its determination that the stock was valueless.

Both the capitalization of earnings method and the asset valuation method are acceptable and commonly used ways to valuate small corporations (see, Herwitz, Business Planning, at 1-2 ). It is well established that the weight to be attributed to expert testimony is left to the trier of fact (Baumfeld v. State of New York, 107 A.D.2d 927, 928, 484 N.Y.S.2d 348). Here, because the different valuation methods espoused by each party were both acceptable, we do not now disturb Trial Term's choice to rely on the testimony of defendant's expert witness rather than that of plaintiff's expert.

We next address the issue of maintenance awarded to plaintiff, which Trial Term set at $250 per week during the remainder of plaintiff's lifetime or until her remarriage. Plaintiff contends that the amount awarded was too low in light of the parties' prior standard of living and that Trial Term improperly considered fault, despite the parties' stipulation, in awarding maintenance. Defendant, on the other hand, advances the argument that the duration of the maintenance payments should be reduced to five years.

With regard to plaintiff's arguments, we note first that marital fault is, generally, a proper consideration in awarding maintenance (Nolan v. Nolan, 107 A.D.2d 190, 192, 486 N.Y.S.2d 415; Stevens v. Stevens, 107 A.D.2d 987, 988, 484 N.Y.S.2d 708). Here, the issue of fault is complicated by the parties' stipulation, which was to prevent the court from considering the fault of either party prior to the commencement of the divorce action. Trial Term, in that portion of its decision dealing with maintenance, pointed out that it was plaintiff's "initiative to break up the marriage". This, in light of the parties' stipulation, was improper. We conclude, however, that such error was harmless since Trial Term's decision demonstrates a careful analysis of all of the relevant statutory factors and since the amount of maintenance ultimately awarded was, on this record, fair and appropriate (see, Nolan v. Nolan, supra, 107 A.D.2d p. 192, 486 N.Y.S.2d 415). The consideration of any fault on the part of plaintiff after the...