Nadasi v. Nadel-Nadasi

153 A.D.3d 1346

60 N.Y.S.3d 488

David NADASI, respondent-appellant,

v.Rose Anne NADEL–NADASI, appellant-respondent.

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

Sept. 20, 2017.

Wilson Elser Moskowitz Edelman & Dicker, LLP, White Plains, NY (Robert A. Spolzino, former of counsel on the brief), for appellant-respondent.

The McPherson Firm, P.C., New York, NY (Laurie J. McPherson of counsel), for respondent-appellant.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, BETSY BARROS, and VALERIE BRATHWAITE NELSON, JJ.

Appeal and cross appeal from stated portions of a judgment of divorce of the Supreme Court, Westchester County (Charles D. Wood, J.), dated September 16, 2014. The judgment, upon a decision of that court entered March 13, 2014, made after a nonjury trial, and upon an order of that court entered June 18, 2014, inter alia, awarded the defendant a credit in the sum of $135,450 related to the plaintiff's interest in S & M Brokerage Co., Inc., representing 15% of the value of the plaintiff's interest in the business, failed to award the defendant any credit related to a business apartment, credited the defendant with $127,162.50 for allegedly missing funds, equitably distributed life insurance policies and a vehicle, awarded the defendant maintenance in the sum of $12,000 per month for two years after the defendant vacates the marital home or June 1, 2014, whichever is later, $11,000 per month for the following two years, and $10,000 per month for the following two years, with such maintenance obligation terminating upon the defendant's remarriage or the death of either party, directed the plaintiff to pay 100% of the children's add-on expenses and 70% of the defendant's attorney and expert fees, and failed to hold the plaintiff in contempt.

ORDERED that the judgment is modified, on the facts and in the exercise of discretion, (1) by deleting the provision thereof awarding the defendant a credit in the sum of $135,450 related to the plaintiff's interest in S & M Brokerage Co., Inc., representing 15% of the value of the plaintiff's interest in the business, and substituting therefor a provision awarding the defendant a credit in the sum of $225,750 related to the plaintiff's interest in S & M Brokerage Co., Inc., representing 25% of the value of the plaintiff's interest in the business, (2) by adding a provision thereto awarding the defendant a credit in the sum of $90,000 related to the business apartment, and (3) by deleting the provision thereof awarding the defendant maintenance in the sum of $12,000 per month for two years after the defendant vacates the marital home or June 1, 2014, whichever is later, $11,000 per month for the following two years, and $10,000 per month for the following two years, with such maintenance obligation terminating upon the defendant's remarriage or the death of either party, and substituting therefor a provision awarding the defendant maintenance in the sum of $12,000 per month for two years after the defendant vacates the marital home or June 1, 2014, whichever is later, $11,000 per month for the following two years, $10,000 per month for the following two years, $9,000 per month for the following two years, $8,000 per month for the following two years, and $7,000 per month for the following two years, with such maintenance obligation terminating upon the defendant's remarriage or the death of either party; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, with costs to the defendant.

The parties were married on November 11, 1989, and there are three children of the marriage. The plaintiff is a 50% partner in a commodities brokerage firm, earning approximately $1.5 million per year. The defendant stopped working in 1996 to be a homemaker and primary caretaker of the parties' children. The parties separated in May 2010. In July 2011, the plaintiff commenced this action for a divorce and ancillary relief. The matter went to trial on the issues of equitable distribution, child support, and maintenance. In a decision dated March 13, 2014, the Supreme Court, among other things, credited the defendant with 15% of the plaintiff's business interest as valued by a neutral appraiser, totaling the sum of $135,450, and otherwise equally divided the marital estate, with certain credits to each party. The court determined that the plaintiff's interest in a business apartment was his separate property. It awarded the defendant six years of maintenance, decreasing from $12,000 monthly to $10,000 monthly over that period, and directed the plaintiff to pay 100% of the children's add-on expenses other than medical claims denied due to their untimely submission by the defendant. In an order entered June 18, 2014, the court directed the plaintiff to pay 70% of the defendant's counsel and expert fees. Thereafter, a judgment of divorce dated September 16, 2014, was entered, implementing the court's findings. The parties appeal and cross-appeal from stated portions of the judgment.

"The trial court is vested with broad discretion in making an equitable distribution of marital property ... and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed" ( Gafycz v. Gafycz, 148 A.D.3d 679, 680, 48 N.Y.S.3d 464 [internal quotation marks omitted] ).

"There is no uniform rule for fixing the value of a going business and the valuation of a business for equitable distribution purposes is an exercise properly with[in] the fact-finding power of the trial court, guided by expert testimony" ( Bricker v. Bricker, 69 A.D.3d 546, 547, 893 N.Y.S.2d 128 ; see Burns v. Burns, 84 N.Y.2d 369, 375, 618 N.Y.S.2d 761, 643 N.E.2d 80 ; Wasserman v. Wasserman, 66 A.D.3d 880, 882, 888 N.Y.S.2d 90 ).

The price fixed by a shareholders' agreement "may be considered as one factor but is not conclusive of the value of the partner's interest" ( Burns v. Burns, 84 N.Y.2d at 375, 618 N.Y.S.2d 761, 643 N.E.2d 80 ; see Amodio v. Amodio, 70 N.Y.2d 5, 8, 516 N.Y.S.2d 923, 509 N.E.2d 936 ; Stubbs v. Stubbs, 41 A.D.3d 832, 833, 839 N.Y.S.2d 511 ). Whatever valuation method is used "must take into consideration inhibitions on the transfer of the corporate interest resulting from a limited market or contractual provisions" ( Amodio v. Amodio, 70 N.Y.2d at 7, 516 N.Y.S.2d 923, 509 N.E.2d 936 ). Here, in determining the value of the plaintiff's interest in his business, the Supreme Court properly relied on the report prepared by the neutral appraiser, which applied a 25% discount for the lack of marketability of his interest (see Greisman v. Greisman, 98 A.D.3d 1079, 1081, 951 N.Y.S.2d 219 ; Myers v. Myers, 255 A.D.2d 711, 713, 680 N.Y.S.2d 690 ; Ellis v. Ellis, 235 A.D.2d 1002, 1004, 653 N.Y.S.2d 180 ; Kalisch v. Kalisch, 184 A.D.2d 751, 753, 585 N.Y.S.2d 476 ). However, in view of the defendant's indirect contributions to the business as a homemaker and primary caretaker for the parties' three children in this long-term marriage, while forgoing her own career, an award to the defendant of 25% of the value of the plaintiff's interest in the business, totaling the sum of $225,750, would be appropriate (see Domestic Relations Law § 236[B][5][d][7] ; Fields v. Fields, 15 N.Y.3d 158, 162, 905 N.Y.S.2d 783, 931 N.E.2d 1039 ; Arvantides v. Arvantides, 64 N.Y.2d 1033, 1034, 489 N.Y.S.2d 58, 478 N.E.2d 199 ; Hymowitz v. Hymowitz, 119 A.D.3d 736, 739, 991 N.Y.S.2d 57 ; cf. Giokas v. Giokas, 73 A.D.3d 688, 690, 900 N.Y.S.2d 370 ).

There is a statutory presumption that all property acquired by either spouse during the marriage, unless clearly separate, is marital property, and the party seeking to overcome the presumption has the burden of proving that the property in dispute is separate property (see Domestic Relations Law § 236[B][1][c], [d] ; Fields v. Fields, 15 N.Y.3d at 165, 905 N.Y.S.2d 783, 931 N.E.2d 1039 ; Marshall v. Marshall, 91 A.D.3d 610, 611, 937 N.Y.S.2d 253 ). The Supreme Court properly determined that the plaintiff had overcome the presumption that his initial 20% interest in the business apartment in Manhattan, purchased a few months after the marriage through Legume Investors, was marital property. Although the plaintiff's separate premarital funds used to purchase his interest had been commingled with marital funds in a joint account, the plaintiff traced the source of the funds with sufficient particularity to rebut the presumption that they were marital property (see Phillips v. Haralick, 70 A.D.3d 663, 665, 894 N.Y.S.2d 87 ; see generally Fields v. Fields, 15 N.Y.3d at 169, 905 N.Y.S.2d 783, 931 N.E.2d 1039 ; Scher v. Scher, 91 A.D.3d 842, 846, 938 N.Y.S.2d 317 ; Masella v. Masella, 67 A.D.3d 749, 750, 889 N.Y.S.2d 80 ). Further, the court properly determined that the appreciation in value of this interest, due to market forces,...