Opinion
2012-03-23
Ellen J. GALLAGHER, Plaintiff–Respondent–Appellant, v. Edward R. GALLAGHER, Defendant–Appellant–Respondent. (Appeal No. 1.)
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant–Appellant–Respondent. Getnick, Livingston, Atkinson & Priore, LLP, Utica (Thomas L. Atkinson of Counsel), for Plaintiff–Respondent–Appellant.
D.J. & J.A. Cirando, Esqs., Syracuse (John A. Cirando of Counsel), for Defendant–Appellant–Respondent. Getnick, Livingston, Atkinson & Priore, LLP, Utica (Thomas L. Atkinson of Counsel), for Plaintiff–Respondent–Appellant.
PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.
MEMORANDUM:
Plaintiff wife commenced this divorce action in August 2007 seeking, inter alia, equitable distribution of the marital property and child support. In appeal No. 1, defendant husband appeals and the wife cross-appeals from an amended judgment following a trial and, in appeal No. 2, the husband appeals from a subsequent order that, inter alia, restricted him from entering into contracts for real property. The parties have owned and operated a dairy farm since 1983. The parties' second oldest son (hereafter, son) started working full-time on the farm in early 2002, at approximately the same time that the wife no longer had any involvement in the farm. The husband and son proceeded to expand the farm by increasing the size of the cattle herd and acquiring additional real property, some of which was titled in the son's name. In August 2008, the son commenced an action against the parties seeking an interest in the farm, and the actions were consolidated for a joint trial. At the conclusion of testimony with respect to the son's action, Supreme Court concluded that the son and the husband had not formed a partnership and dismissed the son's complaint.
With respect to the amended judgment in appeal No. 1, the husband contends on appeal that, in determining the value of the farm for equitable distribution purposes, the court should not have included the value of the real property that was titled in the son's name. Contrary to the wife's contention on her cross appeal, the husband is not collaterally estopped from raising that contention inasmuch as the order dismissing the son's complaint did not address his entitlement to possession of real property that was titled in his name ( see Zayatz v. Collins, 48 A.D.3d 1287, 1290, 851 N.Y.S.2d 797). We conclude, however, that the husband's contention is without merit. Pursuant to Domestic Relations Law § 236(B)(5)(d)(13), a court may consider “any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration” when making its equitable distribution determination. Here, the court properly determined that the value of the real property that was titled in the son's name constituted marital property inasmuch as that property was purchased using farm income ( see Niland v. Niland, 291 A.D.2d 876, 876–877, 737 N.Y.S.2d 214). The record supports the court's determination that the purchases of property titled in the name of the son were part of the husband's scheme to divest the wife of her interest in the farm.
Contrary to the husband's further contention on appeal in appeal No. 1, the court did not abuse its discretion in denying that part of his motion to retain and offer testimony from different expert witnesses than those he had listed in his expert disclosure. The court properly determined that the husband failed to demonstrate “good cause” for the late disclosure, which was not made until the middle of the trial, and that permitting the late disclosure would be prejudicial to the wife (CPLR 3101[d][1][i]; see Caccioppoli v. City of New York, 50 A.D.3d 1079, 1080, 857 N.Y.S.2d 640; see also Saggese v. Madison Mut. Ins. Co., 294 A.D.2d 900, 901, 741 N.Y.S.2d 803; cf. Peck v. Tired Iron Transp., 209 A.D.2d 979, 979, 620 N.Y.S.2d 199). Contrary to the husband's contention, “[t]he court did not err in failing to take into account the tax impacts of the distributive award because there was no evidence that any assets would have to be sold” ( Atwal v. Atwal [Appeal No. 2], 270 A.D.2d 799, 799, 704 N.Y.S.2d 765, lv. denied 95 N.Y.2d 761, 714 N.Y.S.2d 711, 737 N.E.2d 953; see Kudela v. Kudela, 277 A.D.2d 1015, 1015, 716 N.Y.S.2d 231).
With respect to the equitable distribution of the farm, the husband contends on appeal in appeal No. 1 that the court improperly calculated the value thereof, and the wife contends on her cross appeal that the court erred in its valuation date. In addition, both parties contend that the court's determination to award the wife 45% of that asset was inequitable. First, we conclude that the court did not abuse its discretion in valuing the farm as of the date of the commencement of the action ( see George v. George, 237 A.D.2d 894, 894, 656 N.Y.S.2d 1016). As the court noted, the farm “had not undergone the type of radical alteration subsequent to the commencement of the action that would warrant a valuation of the [farm] at the time of trial” ( Grunfeld v. Grunfeld, 94 N.Y.2d 696, 708, 709 N.Y.S.2d 486, 731 N.E.2d 142). Second, we reject the husband's contention that the court erred in its valuation of the real property of the farm, but we agree with the husband that the court erred in failing to decrease that amount by a debt on a portion of the real property in the amount of $46,201 ( see Loria v. Loria, 46 A.D.3d 768, 770, 848 N.Y.S.2d 681). We further agree with the husband that the value of the farm should be decreased by the amount of the open accounts, which was $48,995. It was undisputed that the wife's expert appraised the farm personalty on a liquidation basis, which the court adopted, and a liquidation of the business would apply the debts on those open accounts. We therefore modify the amended judgment by reducing the distributive award to the wife in the amount of $586,065 set forth in the 3rd decretal paragraph to $543,227 and reducing the lump sum partial distributive award in the amount of $260,000 set forth in the 4th, 5th, and 10th decretal paragraphs to $217,162. We further conclude that the court did not abuse its discretion in awarding the wife 45% of the value of the farm ( see generally Oliver v. Oliver, 70 A.D.3d 1428, 1428–1429, 894 N.Y.S.2d 287). Contrary to the husband's contention, “the relevant factors were taken into consideration by the court and the reasons for its decision are articulated” ( Butler v. Butler, 256 A.D.2d 1041, 1042, 683 N.Y.S.2d 603, lv. denied 93 N.Y.2d 805, 689 N.Y.S.2d 429, 711 N.E.2d 643).
We reject the husband's further contention on appeal in appeal No. 1 that the court abused its discretion in awarding him 15% of the value of the wife's enhanced earnings from teaching based on her attainment of a master's degree ( see Martinson v. Martinson, 32 A.D.3d 1276, 1277, 821 N.Y.S.2d 537). “ ‘[W]here only modest contributions are made by the nontitled spouse toward the other spouse's attainment of a degree ... and the attainment is more directly the result of the titled spouse's own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity’ ” ( Higgins v. Higgins, 50 A.D.3d 852, 853, 857 N.Y.S.2d 171). Contrary to the contentions of the husband on appeal and the wife on her cross appeal, the court did not abuse its discretion in awarding the wife $40,000 in counsel fees, which was less than half the amount she was seeking ( see Blake v. Blake [Appeal No. 1], 83 A.D.3d 1509, 921 N.Y.S.2d 615). The court properly considered, inter alia, “the financial circumstances of both parties ... [and] the existence of any dilatory or obstructionist conduct” ( id.; see Johnson v. Chapin, 12 N.Y.3d 461, 467, 881 N.Y.S.2d 373, 909 N.E.2d 66, rearg. denied 13 N.Y.3d 888, 893 N.Y.S.2d 834, 921 N.E.2d 602). Although the wife had the financial ability to pay for her own counsel fees, the husband had engaged in some obstructionist conduct during the trial. We have considered the parties' remaining contentions in appeal No. 1 and conclude that they are without merit.
With respect to the order in appeal No. 2, we agree with the husband that the court erred in restricting him from entering into or closing on any real property contracts inasmuch as the wife did not seek that relief in her order to show cause ( cf. Tirado v. Miller, 75 A.D.3d 153, 158, 901 N.Y.S.2d 358). We therefore modify the order in appeal No. 2 by vacating the fifth ordering paragraph.
It is hereby ORDERED that the amended judgment so appealed from is unanimously modified on the law by reducing the distributive award in the amount of $586,065 set forth in the 3rd decretal paragraph to $543,227 and reducing the lump sum partial distributive award in the amount of $260,000 set forth in the 4th, 5th, and 10th decretal paragraphs to $217,162, and as modified the amended judgment is affirmed without costs.