Opinion
February 10, 1986
Appeal from the Supreme Court, Queens County (La Fauci, J.).
Judgment dated April 6, 1984 in the principal sum of $41,311 modified, on the law and the facts, by deleting therefrom the provision awarding the plaintiff the principal sum of $15,550 representing unpaid arrears of the equitable distribution award. As so modified, judgment affirmed, and matter remitted to the Supreme Court, Queens County, for entry of an appropriate amended judgment and further proceedings consistent herewith. Order dated February 7, 1984 modified accordingly.
Order dated May 8, 1984 modified, on the law and the facts, by (1) deleting the provision thereof denying the defendant's cross motion for downward modification of maintenance and substituting therefor a provision granting said motion to the extent that the amount of weekly maintenance is reduced from $500 per week to $300 per week as of September 7, 1983, and (2) deleting the provision thereof which awarded the plaintiff $9,600 in arrears. As so modified, order affirmed, and matter remitted to the Supreme Court, Queens County, for recalculation of arrears and further proceedings consistent herewith. Judgment dated August 30, 1983 amended accordingly.
Judgment dated April 6, 1984, in the amount of $27,500, representing an award of counsel fees to the plaintiff, affirmed.
Judgment dated August 30, 1983, as amended on the appeal from the order dated May 8, 1984, modified, on the law and the facts, by (1) reducing (a) the amount of the distributive award to the plaintiff to $216,666, (b) the amount of the first installment pursuant to the distributive award to $14,444, and (c) the 28 semiannual installments to $7,222 and (2) adding a provision requiring the defendant to maintain a life insurance policy on himself for the benefit of the plaintiff and their daughter in the amount of the unpaid balance of the distributive award. As so modified, judgment, as amended, affirmed, insofar as appealed from.
No costs or disbursements are awarded.
The trial court properly valued the marital property as of the date of the commencement of the action, and it properly considered postcommencement events in its determination (see, e.g., Lee v. Lee, 93 A.D.2d 221). We are also in agreement with the basic methods used by the trial court in determining the value of the defendant's photographic-processing business. Specifically, we agree with the use of an average pretax annual earnings figure of $105,605 as a basis for capitalizing the earnings of the defendant's business, and that the business' tangible assets, to wit, real estate and photographic-processing equipment, were properly added to the value of the business. Additionally, the trial court properly considered the fact that the defendant's business entered into an agreement with one of its shareholders, the defendant's father-in-law, to buy out his one-third share of the business for $320,000, which agreement was specifically structured to give the defendant's corporations certain tax advantages. However, we disagree with the trial court in its inclusion, in the valuation of the business, of an additional amount of $100,000 as good will. We find no basis in the record for this amount, and therefore, the valuation of the business from which the plaintiff's distributive award was determined must be reduced by $100,000, that is, from $1,400,000 to $1,300,000. As the defendant owned one third of this business at the time of the commencement of the trial, his share was worth $433,333, and the plaintiff is entitled to a distributive award of 50% of that amount, to wit, $216,666. This distributive award shall remain payable over a 15-year period, the first year to be paid in one installment of $14,444, and the remaining 14 years to be paid in semiannual installments of $7,222. We perceive of no reason, based on the evidence of this case, to award the plaintiff less than a 50% share of the defendant's business as and for equitable distribution (see, Conner v. Conner, 97 A.D.2d 88, 96; 1980 N.Y. Legis Ann, at 129-130; cf. Duffy v. Duffy, 94 A.D.2d 711).
The amount of maintenance should, however, be reduced as of September 7, 1983 from $500 per week to $300 per week. The evidence shows that the plaintiff became employed as a school psychologist as of that date, and the defendant moved for modification in December 1983 within a reasonable time after learning of the change of circumstances. The matter is, therefore, remitted to the trial court for a redetermination of the amount of arrears of the equitable distribution award which constitutes the award of the principal sum of $15,550 in the judgment dated April 6, 1984, and for a redetermination of the arrears in maintenance awarded in the order dated May 8, 1984. Mangano, J.P., Rubin, Eiber and Kooper, JJ., concur.