Opinion
05-28-2015
Lynn Lucka BERGMAN, Plaintiff–Respondent, v. Franklin BERGMAN, Defendant–Appellant.
Gunilla Perez–Faringer, White Plains, for appellant. David J. Aronstam, New York, for respondent.
Gunilla Perez–Faringer, White Plains, for appellant.
David J. Aronstam, New York, for respondent.
ANDRIAS, J.P., MOSKOWITZ, DeGRASSE, GISCHE, KAPNICK, JJ.
Opinion Order, Supreme Court, New York County (Laura E. Drager, J.), entered on or about November 8, 2013, which, to the extent appealed from as limited by the briefs, granted plaintiff wife's motion for confirmation of the referee's report, dated April 11, 2013, to the extent it denied defendant husband's motion for a downward modification of his maintenance obligations, unanimously affirmed, without costs.
Supreme Court properly granted plaintiff's motion to confirm the referee's report, since defendant failed to establish that he had suffered a substantial change in circumstances to warrant downward modification of his support obligation (see Nordhauser v. Nordhauser, 130 A.D.2d 561, 562, 515 N.Y.S.2d 501 [2d Dept.1987] ). Although the referee's findings of fact tracked the language of the arguments and assertions in plaintiff's memorandum of law, the relevant issue was whether the referee's findings were substantially supported by the record (see Barr v. Barr, 232 A.D.2d 316, 648 N.Y.S.2d 917 [1st Dept.1996] ; Freedman v. Freedman, 211 A.D.2d 580, 621 N.Y.S.2d 610 [1st Dept.1995] ), which they were.
Defendant's expenses exceeded his stated income, and the record established that a number of his personal expenses were paid for by his wholly-owned company, which had generated $1.5 million in 2011, the year prior to the hearing. We reject defendant's challenges to the referee's credibility findings. “It is the function of a referee to determine the issues presented, as well as to resolve conflicting testimony and matters of credibility” (Poster v. Poster, 4 A.D.3d 145, 145, 771 N.Y.S.2d 635 [1st Dept.2004], lv. denied 3 N.Y.3d 605, 785 N.Y.S.2d 21, 818 N.E.2d 663 [2004] ). The referee determined that defendant's witnesses were not credible to the extent they testified that his wholly-owned company was insolvent, since the testimony of insolvency was contrary to defendant's sworn statement that the combined operations of two of his entities resulted in a profit of $45,000 over a two and one-half year period, and no valuation of the goodwill of the company's 32–year old trade name had occurred, even though the name had generated $1.5 million in sales for defendant's company.
We note that plaintiff was not required to offer testimony at the hearing, since the burden was on defendant to establish that he had suffered a substantial change in circumstances to warrant a downward modification of his maintenance obligations (see Nordhauser, 130 A.D.2d at 562, 515 N.Y.S.2d 501 ).
The record shows that there was no actual bias or prejudice in the special referee's treatment of the parties (see Poster, 4 A.D.3d at 145–146, 771 N.Y.S.2d 635 ; see also Herman v. Gill, 61 A.D.3d 433, 876 N.Y.S.2d 55 [1st Dept.2009] ).
We have considered defendant's remaining contentions and find them unavailing.