E.G. v. D.G.

Full title: E.G., Plaintiff, v. D.G., Defendant.

Court: Supreme Court, Westchester County

Date published: Nov 7, 2014

2014 N.Y. Slip Op. 51956 (N.Y. Sup. Ct. 2014)

Opinion

XX/14

11-07-2014

E.G., Plaintiff, v. D.G., Defendant.

David Rosoff, Esq. Carton & Rosoff Attorney for Plaintiff 150 Grand Street White Plains, NY 10601 Via Facsimile - 914-381-7158 Gus Dimopoulos, Esq. Maniatis & Dimopoulos Attorney for Defendant 73 Main Street Tuckahoe, NY 10707 Via Facsimile - 914-793-1111

Linda Christopher, J.

David Rosoff, Esq. Carton & Rosoff Attorney for Plaintiff 150 Grand Street White Plains, NY 10601 Via Facsimile - 914-381-7158 Gus Dimopoulos, Esq. Maniatis & Dimopoulos Attorney for Defendant 73 Main Street Tuckahoe, NY 10707 Via Facsimile - 914-793-1111 Linda Christopher, J.

The plaintiff commenced this action for divorce on September 11, 2012. The parties were married on — - , 1990 and are each 50 years old. They have two children; N., age 23, and A., age 21.

The trial of this action commenced on June 3, 2014 and continued for ten days on and off until completion on June 26, 2014. Post Trial Memorandums were received in July, 2014. Plaintiff was granted a divorce after inquest based on DRL §170(7), pending the hearing and determination of the ancillary issues.

During the trial, the parties presented testimony and evidence that proves the American dream is still alive and well. In the case of Mr. G., he started out with a cart, selling hot dogs in New York City, and worked his way into owning a successful restaurant in Manhattan, a home in Westchester, a vacation home upstate, a beach residence (all without debt) and several apartment buildings. Unfortunately, the parties lost something of themselves along the way. Tragically, not only did they end up divorcing each other but the parties' son assisted his father in removing financial records from the marital residence and actually came into Court and testified against his mother in an act evidencing the son's own greed, fueled by the father's gift to him of a building as well as the family restaurant. For her part, plaintiff tried to cast defendant and her son as abusive and threatening, but the Court found that while her husband was certainly controlling, the acts she testified to failed to rise to the level of a family offense within the context of DRL §252 and Article 8 of the Family Court Act. Moreover, she was not as financially naive as she purported to be. The balance of the case centered around the existence of the parties' assets, their division and the plaintiff's claim for maintenance.

BACKGROUND

The parties first met in 1986. They were engaged in 1989 and married in 1990. Defendant, who was from Greece, started with a hot dog cart in New York City in the late 1980's. Plaintiff told him that being a hot dog vendor would not give him much respect and advised him to move indoors. Not only would he get more respect, she offered but he would make more money. She credits her suggestion with spurring him to buy an interest in P. J. T. in 1989 (hereinafter the "Restaurant") (before they were married). Plaintiff, who is from Greek heritage but born in the United states, worked in a temporary employment agency until early in the marriage, 1990 - 1991. She insinuated that defendant did not really purchase B. N.'s T. until 1990 because, "all the payments show 1990", she testified. Moreover, he did not initially go to the Restaurant but, instead, went to a restaurant in New Rochelle, she claimed. Defendant later introduced evidence of the purchase of B. N.'s T. in 1988. (See Tr. Ex. 22). Defendant testified that he bought P. J. T. on — — , 1988. He owned 50% with his former partner G. S. Mr. S. also testified and confirmed that they bought the Restaurant in — , 1988. The purchase price was $460,000 with a $395,000 mortgage. Each partner paid $32,500. They began paying the Note on the Restaurant in March or April, 1988 of $5,700 monthly. Defendant testified he worked in another restaurant for a while to see how to operate a restaurant and to help out G. After a couple of months, he began operating the Restaurant. The checks presented as Tr. Ex. 23 show payments beginning in 1991. However defendant, as well as his prior business partner, testified that they began in 1988.

Plaintiff claimed defendant was in control of everything. She only received $100 every week for groceries when they were first married. For any other expenses, she had to ask defendant for the money. She asked her husband to set up a joint checking account to which he finally agreed but, she claimed, there was never much money in the account. This was a point of contention for plaintiff throughout the marriage. She wanted more of a partnership, access to money and consultation regarding economic decisions affecting the family and her husband wanted to control their finances and make financial decisions on his own.

When plaintiff got part time jobs, her husband got aggravated, she claimed. It was not worth the hassle and she had responsibilities at home. She did not work in the Restaurant when the kids were little, but as they got older, in the late 1990's, she began to work there. Defendant would ask his wife to work if someone was absent from the Restaurant such as one of the managers or if defendant was out. In the late 1990's plaintiff took phone orders and ran the register. At times, she was the only manager at the Restaurant. In early 2002 - 2003, her husband often went to Greece for two weeks at a time because his mother was ill and plaintiff managed the Restaurant. She tallied up the sales, dealt with employee disputes and paid for supplies - with cash from the register. Her father-in-law came from Greece in 2004 and defendant wanted her home to help care for him. She never worked except in the Restaurant after 2004. Plaintiff tried to counsel defendant regarding his employment styles. She claimed he mistreated his employees, used improper disciplinary tactics such as withholding pay for minor infractions and, in fact, was sued by an employee and paid $85,000 to settle a dispute in 2005.

Plaintiff also testified that defendant had several relatives on the books who never worked at the Restaurant, including K. G. who has lived in Athens, Greece since 1990 (he came two times to visit with his family for two weeks), V. G., defendant's uncle, (who lived in Greece since 1986 and visited the United States one time since 1986 for two weeks) and his wife, T. (who has not been to the United States since 1996).

In 1995 defendant's partner in the pizza business wanted to sell the business because he wanted out. Plaintiff spoke to her uncle who counseled against selling the Restaurant but instead recommended they look for a partner. Plaintiff found her cousin who was interested and he paid $200,000 in cash and checks for a 50% ownership interest. He worked the night shift. Unfortunately, her cousin came down with Parkinson's Disease in 2006. Initially, according to plaintiff, her husband said he was not going to pay the cousin anything because there were no papers. Eventually, she prevailed upon him to do the right thing. He paid him $200,000 in four - five payments.

Plaintiff testified that after her cousin left, she went into the Restaurant more to help out. She also helped count and sort the money at home in the evenings. The routine was that they would sort out the cash and checks, then put some cash and checks with invoices in a plastic bag, then cash into a paper bag with a few invoices for plaintiff to pay and a pile of singles, usually $300 - $400. On Tuesday morning plaintiff would deposit all the singles and checks into the bank. This was the routine for the last ten (10) years or more of the marriage. (Like much of plaintiff's testimony, she failed to state the final, implicit claim of what happened to the balance of the cash. She left a lot up to the Court to fill in the missing pieces.)

As to record keeping, plaintiff testified that her husband kept a record of everything in a marble notebook regarding the Restaurant as well as the income producing property. Her son removed all of the marble notebooks that had been stored in the parties' home on the desk, floor, closet, attic and foyer next to the parties' bedroom. Ms. G. saw the notebooks in the back of her son's car and saw him put them in the garage of the H. property owned by the parties (more on the H. property below). The son also removed the business computer and various documents, she testified.

Mr. G. invested in the stock market. At one point, he told his wife he made two million dollars, she claimed. She also alleged she looked at documents showing he transferred a lot of money to Greece. In addition, the defendant purchased gold (seven (7) 10 oz. bars, valued at $18,130 per bar).

The parties own a condominium on the Jersey shore. It is a two family home that was divided into two condominiums. Plaintiff's parents owned the downstairs and her godparents owned the upstairs. Plaintiff testified that in 1998, she went to the lawyer's office where her father paid $90,000 for the upstairs condominium, which was put in her and her father's name. When her father passed away last year, it went to plaintiff in her name alone. Defendant claimed he paid cash for the plaintiff's share in the condominium. There is no evidence of that claim other than defendant's conflicting testimony.

The wife testified about real property in Greece and about her husband sending money to Greece. The thrust of her testimony was that her husband sent money to Greece when they were engaged to be married, to build a three family residence in Greece in the town of P., on the outskirts of Athens. She also testified that whenever they traveled to Greece, he brought tens of thousands of dollars in cash. Defendant denied her allegations and countered that they brought enough cash to pay for extended vacations in Greece before the widespread use of credit cards. This Court finds neither position entirely credible. Plaintiff testified to him sending money to his relatives during the marriage. Essentially, plaintiff claimed her husband spent a lot of marital money on constructing this three family residence. She also claimed he sent money to his brothers. She testified that she overheard him on the phone to Greece say, "This is the last $60,000." As to what this referred to, she did not say. She also claimed he bought his brothers and their wives Mercedes' and BMW's. (Note: Defendant drives a Honda Accord.) Defendant, of course, disputes plaintiff's account, claiming the three family residence was an inheritance that he chose not to accept in lieu of a buyout from his brothers. He used his portion for other purposes. Defendant explained the properties in Greece as follows: A property in A. is a single family home given to him by his father. The P. property was given to him by his parents in 1987. His parents owned property across the street in P. - land with a single family home. They constructed a three family residence. His parents gave it to his two brothers. His brothers paid him 70,000 euros for his interest. Defendant purchased a piece of land in T. in 2001 for 70,000 euros. He sold it for 160,000 euros that his brother deposited in defendant's — bank account less 10,000 euros for the realtor's fee. He authorized his brother to put the money into short term CD's. The account increased to 187,000 euros. In 2006 or 2007, his brother, C., took money out of the account to renovate the houses in P. and A.

Then there was the property in T. The plaintiff's somewhat confusing testimony set forth that defendant bought land in Greece from a lady in Boston in the early 2000's over plaintiff's objections. He took a suitcase with $60,000 to Boston and bought the property she claimed. He did this despite her arguing that they did not need another place; they already had a summer place (at the Jersey shore presumably). The next time they went to Greece, she saw it and then he sold it. He bought a house in the same town. She saw it and said it was a beautiful "redone" house with two kitchens and a pool. Her husband informed her that it was his brother's house. Plaintiff may have believed defendant gave it to his brother or that it was really his but this is not what she actually stated in testimony. Much of her testimony was similar innuendo, leaving it to the Court to connect the dots. Unfortunately, there were too many dots to connect and not enough concrete facts. She stated on the stand that, "I saw a paper that had his brother's little shop - a money wire transfer. I said, when's it going to end, supporting all these people in Greece." In this vein, she seemed to claim her husband was gifting money to his brothers. Yet, she also insinuated that he was not really giving them money, rather he was giving it to them to put into assets for him. These two discrete theories conflict and plaintiff failed to prove one over the other or either. If defendant gave his brother money in the 1990's and early 2000's, the issues are too distant and lack sufficient proof.

Plaintiff also testified that her husband sent money to his father who "completely remodeled his home". "Our money was used," she claimed. She testified that she complained to her husband, "It would have been nice to discuss." She presented Ex. 53 as proof of money defendant wired to Greece in 2003.

Plaintiff presented evidence through a Greek attorney, A. S., who testified as to two (2) pieces of real estate transferred to defendant from his father (which only seemed to support defendant's position).

She also claimed defendant went to Switzerland last year to "put money away." She provided zero proof that defendant even went to Switzerland much less that he put money away.

Plaintiff testified as to money borrowed from her parents to use toward the purchase of a marital residence. She claimed defendant threatened to leave her and the kids when she said they needed to repay her parents.

The parties purchased a vacation home in L., New York about nine to ten years ago in approximately 2005. They paid $305,000 with no mortgage. It is currently contracted for sale for $365,000.

Plaintiff testified about a property on H. Avenue, Bronx that the parties purchased in 2009. It was her idea to purchase the rental. She looked for over a year, found the two family house at — H. Avenue, spoke to defendant about it and they purchased it for an amount in the low $500's.

Defendant's counsel tried to get plaintiff to admit that the H. Avenue property was purchased for their son. She flatly denied this, explaining that eventually it might go to him when he could afford to pay the parties.

Plaintiff testified on cross-examination that she recently inherited about $200,000 from her father plus the Jersey Shore real estate. Also, that her mother owns a shopping center in Mount Vernon with her cousin. She also testified that she had a Bachelor's Degree and is considering getting her Master's Degree in social work. She is also attending a preparation course for taking the LSAT exam.

In 2009 plaintiff told defendant she wanted a divorce and asked for it to be quick and easy. He did not answer her.

In 2011 her husband tried to refinance the marital residence but plaintiff would not agree.

In 2012 she said, if you don't agree to the divorce, I'll have to go to a lawyer, which is what she did.

Defendant has been paying the expenses of the marital residence during the pendency of the action (the real estate taxes of $1,166 monthly and gas and electric of $800) plus $4,750 monthly. Defendant also pays for his daughter's college. She is planning on going to dental school following graduation from Northwestern. The parties' son dropped out of college (St. John's) where he received an academic scholarship of $10,000 yearly.

The defendant testified that he turned over the running of the Restaurant to his son and rarely went to the Restaurant except as needed, once or twice a month. Astoundingly, defendant did this after commencement of the action, despite the Automatic stays in effect upon commencement of a matrimonial action. In 2013, N. claimed income of $200,562 including $184,430 from - — Shop, Inc. - the new name and entity for P. J. T. (See Tr. Ex. 97 in Ev).

The parties' children, whose father started out with a push cart in New York City, are doing quite well. Plaintiff gave her daughter a pair of sunglasses that cost $1,000, eyeglasses at a cost over $2,000 and a swimsuit that cost $100's for her 21st birthday. She drives an Audi TT. Their son drives a 2007 Porsche, Carerra.

Defendant's attorney tried to get plaintiff to admit his client was frugal. "No", plaintiff adamantly denied this. "It was control." He spent money freely on vacations, in Greece and for weddings. On the flip side, plaintiff, for many years, played tennis on a regular basis and took private lessons, costing hundreds of dollars on a weekly basis. As to plaintiff's tennis hobby, defendant claims she refused to work in the Restaurant, in favor of playing tennis, after 2005.

Plaintiff's counsel read from the parties' deposition transcript. Defendant testified at his deposition that he now earns no wages or profit from the Restaurant. (Depo. Transcript of July 15, 2013, p. 52.)

Defendant admitted to spending $10,000 on the apartment in Greece and $25,000 during the marriage to renovate the family home in Greece, both inherited by him.

Plaintiff introduced Exhibit 67 that shows a trending increase in sales. She claims it is due to the closing of a nearby competitive restaurant, also known as B. N.'s. . — — Avenue, Passaic$ 20,412 H. Ave., Bronx$136

However, the cash flow from real estate and reported income adjusted for the amortization of the loan and depreciation is as follows:

— - — Avenue, Patterson

$ 81,410 depreciation

— — Avenue, Passaic

$ 45,000

- H. Ave., Bronx

$ 10,103

- Realty unclear

$136,513It appears that defendant is accumulating significant "paper" losses but his actual income is well over $100,000 from real estate upon a review of his schedule E. The Court reviewed the tax return filed by the parties of the P. J. T. and the various Restaurant entities as well as that of N., the son. In 2013, defendant claimed he only earned $97,500 from the Restaurant, $28,535 from real estate rentals and $12,953 from dividends. The son's 2013 income of $184,430 from the Restaurant is a good indication of a base line income that defendant should be charged with. In addition, there is most likely significant unreported cash income. Defendant testified it was always his plan to get out of the restaurant business. He was trying to sell the Restaurant. He wanted out since 2010. The interested buyers did not have the money so as his son was interested, he seemed like the best option. (Query: What was the sale price to his son???) Defendant explained from memory, the purchase and sale of buildings he amassed using various forms of money, mortgages and 1031 exchanges. He also testified that he purchased $126,910 of gold bouillon - seven (7) bars. He put them in the safe deposit box but left two at home that disappeared. He has life insurance with a cash value of $76,250 and a retirement fund of $35,658. The parties split the E-Trade account of approximately $700,000. Defendant engaged in substantial acquisitions of real estate and sales described below. The values are as follows: ValuesMortgages

- St., Paterson, NJ		$1,000,000		$ 787,500
- - — Ave., Paterson, NJ		$ 912,000		$ 735,000
— — Ave., Passaic, NJ		$1,600,000		$1,120,000
— — St., Passaic, NJ		$1,112,500		$ 834,375
- H. Ave., Bronx		$ 525,000		$ 382,500
		$5,149,500		$3,859,375
		-3859375
Current		$1,290,125 Net Assets
Less Partnership Interest

DISCUSSION AND ANALYSIS Caselaw and Statutory Law Equitable Distribution

The premise of the equitable distribution law is that "a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner or homemaker." O'Brien v. O'Brien, 66 NY2d 576, 585 (1985). "The Equitable Distribution Law reflects an awareness that the economic success of the partnership depends not only upon the respective financial contributions of the partners, but also on a wide range of nonremunerated services to the joint enterprise, such as homemaking, raising children, and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home (citations omitted)."' Price v. Price, 69 NY2d 8, 14 (1986).

Although equitable distribution does not necessarily mean equal distribution, the general rule calls for an equal distribution of the marital assets, unless the equities of an individual case require an unequal distribution. See, Conner v. Conner, 97 AD2d 88, 96 (2nd Dept. 1983). The basic premise of equitable distribution is that modern marriage should be viewed as a partnership of co-equals. Upon the dissolution of a marriage there should be an equitable distribution of all family assets accumulated during the marriage and maintenance should rest on the economic basis of reasonable needs and the ability to pay. From this point of view, the contributions of each partner to the marriage should ordinarily be regarded as equal, and there should be an equal division of family assets, unless such a division would be inequitable under the circumstances of the particular case.' Conner, 97 AD2d at 96, citing, 11C Zett-Kaufman-Kraut, NY Civ, Prac., Appendix B, p.8. Although in a marriage of long duration, where both parties have made significant contributions to the marriage, a division of marital assets should be made as equal as possible (citation omitted), there is no requirement that the distribution of each item of marital property be made on an equal basis (citations omitted). Chalif v. Chalif, 298 AD2d 348, 349 (2nd Dept. 2002); see, also, Adjmi v. Adjmi, 8 AD3d 411, 412 (2nd Dept. 2004).

Marital property is defined in Domestic Relations Law §236 B(1)(c) as "all property acquired by either or both spouses during the marriage...and before...the commencement of the matrimonial action, regardless of the form in which title is held" Separate property is defined, in part, as " property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse...". DRL§236 B(1)(d)(1). Under the law of equitable distribution, there is a presumption that all property acquired by either spouse during the marriage is marital property. See, DRL§236 B(1)(c). Separate property also includes "property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse." DRL§236 B(1)(d)(3).

In the seminal case of Price v. Price, 69 NY2d 8, 15 (1986), the Court of Appeals reaffirmed that "marital property" should be read as broadly as possible:

The Legislature, in defining this basic term "marital property", we have held, intended that the term should be construed broadly in order to give effect to the "economic partnership" concept of the marriage relationship recognized in the statute (see, Majauskas v. Majauskas, 61 NY2d 481, 489, 490). The term "separate property", on the other hand, which is described in the statute as an exception to marital property, we have stated, should be construed narrowly (Majauskas v. Majauskas, supra, at p. 489). Id.

In keeping with this mandate, there is a strong and clear presumption in favor of classifying an asset as "marital" where, it was acquired during the marriage, and courts routinely reject separate property claims asserted over property acquired during the marriage. See, Raviv v. Raviv, 153 AD2d 932 (2nd Dept. 1989) (husband failed to overcome presumption that option to purchase property, acquired during the marriage, was marital property); Lischynsky v. Lischynsky, 120 AD2d 824 (3rd Dept. 1986) (real property purchased during marriage presumed to be marital, notwithstanding husband's claims to the contrary). A party seeking to show that property is separate must overcome the marital property presumption by clear and convincing evidence. In Parker v. Parker, 240 AD2d 554, 555 (2nd Dept. 1997), for example, the Second Department rejected the husband's claim that property inherited from a family member and property gifted to him by another family member were his separate property because his claims "were not established by clear and convincing evidence"(emphasis added). Id.

An asset acquired during the marriage, even if partially purchased with one of the spouse's separate funds, is still classified as marital property. See, Fields v. Fields, 15 NY3d 158 (2010)."There is no single template that directs how courts are to distribute a marital asset that was acquired, in part or in whole, with separate property funds." Id. at 167. Typically, in these cases, prior to determining how to equitably distribute the asset, the courts give the spouse who made the separate property contribution a credit for the separate property payment. Id. With regard to "distributing any appreciation in value, courts may consider any of the factors listed in Domestic Relations Law §236(B)(5)(d) or any other relevant considerations (citations omitted), including the respective contributions of each spouse and the effect of market forces." Id. at 168.

In Fields, during the parties' marriage, the husband purchased a one-half interest in a townhouse with his mother, with the intent that the parties would live there with their son, thus triggering the presumption that his interest in the property was marital. The fact that the husband used $30,000 of his separate property as a downpayment did not rebut the presumption, as the remaining $100,000 of the purchase price was paid through mortgages with funds that were commingled. The Second Department affirmed the trial court's award to the wife of 35% of the value of all of the marital assets including the husband's one half interest in the townhouse. In making its award, the trial court "considered the spectrum and quantity of contributions made by each spouse to the management and maintenance of the townhouse and the extent to which market factors enhanced the value of the property." Id.

In Butler v. Butler, 171 AD2d 89 (2nd Dept. 1991), the Second Department found that notwithstanding that the downpayment on the marital residence (acquired during the marriage), was comprised of 86.2% of the wife's separate property and 13.8 % of the husband's separate property, it was appropriate that upon the sale of the marital residence, for each party to receive dollar for dollar credit equivalent to the amount of their original separate property contributions, with the remainder of the net proceeds to be distributed 75% to the wife and 25% to the husband. While the Court found that the wife should receive a larger portion of the net proceeds due to her larger separate property contribution, it did not agree with her that she should receive 86.2% of the net proceeds in accordance with her initial separate property contribution, nor did it agree with the husband that each party should receive 50% of the net proceeds after having credited each party with their initial contribution. The Court wrote that the husband's reasoning "runs contrary to the widely recognized rule that marital property need not always be distributed equally (citations omitted)," and the wife's reasoning "runs contrary to the rule that the appreciation in separate property during the course of a marriage can itself be considered marital property to the extent that it is attributable to the efforts of the other spouse." Id. at 92- 93. In making its award, the Court considered the wife's larger contribution to the downpayment and other financial contributions, her contributions as homemaker and caregiver for the child and the husband's contributions toward the improvement of the home, and noted that "the ultimate result must be viewed as equitable in light of all of the factors which the Legislature has defined as material (citation omitted) including any ***factor which the court shall expressly find to be just and proper' (Domestic Relations Law §236[B][5][d][13])." Id. at 93.

With regard to separate property, "[a]ppreciation in the value of separate property is considered separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse' (citations omitted)." Bernholc v. Bornstein, 72 AD3d 625, 628 (2nd Dept. 2010). "When the nontitled spouse makes direct financial contributions to the property and/or direct nonfinancial contributions to the property such as by personally maintaining, making improvements to, or renovating a marital residence,' or the appreciation is the result of both parties' efforts, appreciation due to those efforts constitutes marital property subject to equitable distribution (citations omitted)." Id. Also, "an increase in value of separate property of one spouse during the marriage, which is due in part to the indirect contributions or efforts of the other spouse as homemaker and parent, should be considered marital property (citation omitted)." Feldman v. Feldman, 194 AD2d 207, 217 (2nd Dept. 1993). "Whether the assistance of a nontitled spouse can be said to have contributed in part to the appreciation of an asset depends, however, primarily upon the nature of the asset and whether its appreciation was due in some measure to the time and efforts of the titled spouse' (citations omitted)." Id. "Where such appreciation is not due, in any part, to the efforts of the titled spouse but to the efforts of others or to unrelated factors including inflation or other market forces...the appreciation remains separate property, and the nontitled spouse has no claim to a share of the appreciation' (citation omitted)." Id.

Even when a party is unable to establish appreciation in value of the separate property of their spouse, there are circumstances when he or she may be entitled to a credit. When marital funds are used to reduce the indebtedness and pay for improvements on property that is the separate property of one spouse, the other spouse is entitled to a credit for his or her equitable share of marital funds that were used to reduce the indebtedness and pay for improvements. See, Markopoulos v. Markopoulos, 274 AD2d 457 (2nd Dept. 2000); Davidman v. Davidman, 97 AD3d 627 (2nd Dept. 2012); Linda D. v. Theo C., 96 AD3d 432 (1st Dept. 2012) (defendant received credit for 1/4 of the renovation costs for marital apartment that was plaintiff's separate property, notwithstanding that appraiser did not find renovations had any effect on the value of the apartment). "The reduction of indebtedness on separate property is not considered appreciation in the value of the separate property; rather, the credit is to remedy the inequity created by the expenditure of marital funds to pay off separate liabilities." Bernholc, 72 AD3d at 628.

The equitable distribution awards that are made to the nontitled spouse in connection with the titled spouse's separate property interest vary based on the facts of each case. In Johnson v. Chapin, 12 NY3d 461 (2009) the Court of Appeals found the Appellate Division did not abuse its discretion in reducing the wife's award in the appreciation of the husband's separate property from 50% to 25%, as the husband's income was the sole source of the funds expended on the property, and his involvement in the renovations were far more extensive than that of the wife. In Bernholc, 72 AD3d 625, the marital residence was the plaintiff's separate property. The Court found that both parties contributed to the appreciation of $35,000 resulting from the renovation of the residence; defendant had performed some of the work, and contributed to paying off the home equity loans used for the renovations. The court found that marital funds were used to pay $50,474.90 of the principal amount of the original mortgage during the marriage. Based on these facts, the Court determined that defendant was entitled to 40% of the sum of $85,474.90 ($35,000 plus $50,474.90) as her equitable share. In Markopoulos, 274 AD2d 457, the Court found the plaintiff was entitled to one half of the marital funds used to reduce the indebtedness and pay for improvements on defendant's separate property. In Jones v. Jones, 92 AD3d 845 (2nd Dept. 2012), the Second Department found the trial court's award of $37,500 to the plaintiff for her contribution to the appreciation of the marital residence which was defendant's separate property, to be insufficient and awarded her $290,000, which was 40% of the appreciation in value of the residence from the date of marriage to the date of trial. The Second Department considered plaintiff's contributions to the separate property, including her work on the horse farm. The Third Department, in Biagiotti v. Biagiotti, 97 AD3d 941 (3rd Dept. 2012), affirmed the Supreme Court's determination that plaintiff, the nontitled spouse, should receive 15% of the appreciation of the marital residence, which was defendant's separate property. The residence had increased in value $105,000 during the marriage, and the parties had spent $185,000 to improve the home. The renovations were paid for with marital funds, and defendant was more involved with the renovations than was plaintiff. However, the renovations only accounted for $11,000 of the increase in value; most of the appreciation was passive based on market forces.

In equitably distributing a non-titled spouse's share in the appreciation of a spouse's business interest, the Court considers direct contributions as well as indirect contributions made by the non-titled spouse. DRL §236(B)(1)(d)(3); Baron v. Baron, 71 AD3d 807, 809 (2nd Dept. 2010) (20% award to wife of husband's business taking into account "plaintiff's minimal direct and indirect involvement in the defendant's company, while not ignoring her contributions as the primary caretaker for the parties' children, which allowed defendant to focus on his business."); Scher v. Scher, 91 AD3d 842 (2nd Dept. 2012) (in awarding wife 20% of the appreciated value of husband's business, the court considered wife's direct contributions to the business by serving as the company bookkeeper for approximately 7 years, and her indirect contributions as homemaker and occasional caretaker of one of husband's children from a prior marriage.); Benabu v. Rienzo, 104 AD3d 714 (2nd Dept. 2013) (plaintiff was awarded one third of the appreciation of the defendant's business interests in real estate holding companies based on her indirect contributions); Giokas v. Giokas, 73 AD3d 688 (2nd Dept. 2010) (wife who made no direct contributions was awarded 10% of husband's businesses that was marital; husband's involvement in businesses was not until 21 years into the parties' 33 year marriage, when children were already teenagers and wife was employed outside the home; Kerrigan v. Kerrigan, 71 AD3d 737 (2nd Dept. 2010) (defendant awarded 35% of the value of the appreciation of plaintiff's interest in his business during the marriage).

As there is a presumption that property acquired during the marriage is martial, the spouse who claims a separate property interest in separate funds commingled with marital funds, has the burden to trace the source of funds with sufficient particularity to rebut the presumption that they are marital property. Massimi v. Massimi, 35 AD3d 400, 402 (2nd Dept. 2006); See, DeGroat v. DeGroat, 84 AD3d 1012 (2nd Dept. 2011) (entire proceeds in investment account found to be marital when separate and marital stock options were redeemed during marriage, the proceeds were commingled in a joint account, and defendant failed to demonstrate with sufficient particularity' that any funds in the investment account were directly traceable to stock options that were originally his separate property); Noble v. Noble, 78 AD3d 1386 (3rd Dept. 2010) (wife rebutted presumption that money gifted to her by her mother for the downpayment on the marital home and placed in joint account was marital property, as she proved the deposits were made as a matter of convenience, without intention of creating a beneficial interest; funds were only in account for 6 weeks in anticipation of the closing and this was the only account the wife readily had access to). Date of Valuation

Domestic Relations Law §236(B)(4)(b) provides that "[a]s soon as practicable after a matrimonial action has been commenced, the court shall set the date or dates the parties shall use for the valuation of each asset."

A trial court possesses discretion to select valuation dates for marital assets which are appropriate and fair under the circumstances (citation omitted), limited only by the requirement that the date be set sometime between the commencement of the action and the date of the trial (citation omitted). D'Angelo v. D'Angelo, 14 AD3d 476 (2nd Dept. 2005).

[T]he trial court has broad discretion in selecting the dates for the valuation of marital assets and, depending on the particular circumstances of the case, may appropriately fix different valuation dates for different assets (see, Siegel v. Siegel, 132 AD2d 247; Wegman v. Wegman, 123 AD2d 220). Kirshenbaum v. Kirshenbaum, 203 AD2d 534, 535 (2nd Dept. 1994). Business Valuation

"There is no uniform method of fixing the value of an ongoing business for equitable distribution purposes and valuation is properly within the fact-finding power of the trial court (see, Amodio v. Amodio, 70 NY2d 5; Rice v. Rice, 222 AD2d 493)." Miness v. Miness, 229 AD2d 520, 521 (2nd Dept. 1996). "The determination of a fact-finder as to the value of a business, if it is within the range of the testimony presented, will not be disturbed on appeal where valuation of the business rested primarily on the credibility of expert witnesses and their valuation techniques" (Dempster v. Dempster, 236 AD2d 582, quoting Matter of Penepent Corp., 198 AD2d 782, 783). Ferraro v. Ferraro, 257 AD2d 596, 598 (2nd Dept. 1999). Equitable Distribution Factors

' "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 (citations omitted)." Michaelessi v. Michaelessi, 59 AD3d 688, 689 (2nd Dept. 2009). Domestic Relations Law §236B (5)(d), requires the Court to consider the following 14 factors in making an equitable distribution of the marital property: (1)the income and property of each party at the time of marriage, and at the time of the commencement of the action; (2)the duration of the marriage and the age and health of both parties; (3)the need of a custodial parent to occupy or own the marital residence and to use or own its household effects; (4)the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution; (5)the loss of health insurance benefits upon dissolution of the marriage; (6)any award of maintenance under DRL §236 B(6); (7)any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; (8)the liquid or non-liquid character of all marital property; (9)the probable future financial circumstances of each party; (10)the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party; (11)the tax consequences to each party; (12)the wasteful dissipation of assets by either spouse; (13)any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (14)any other factor which the court shall expressly find to be just and proper.

Guided by these principles of law, the statutory factors, and the equities of the parties' circumstances, the Court makes an award of equitable distribution of the marital property as set forth below. ASSETS - BUSINESS AND REAL PROPERTY Marital Residence

The parties own a marital residence at — — — Avenue, Westchester County, New York. It was acquired during the marriage with marital funds. There is no mortgage. The agreed upon value is $630,000. Each party is entitled to 50% of this asset. Each party is credited with an interest of $315,000. As there are sufficient assets and plaintiff is undecided as to her plans to move, along with her possible desire to obtain a Masters Degree in social work, the marital residence is awarded to the plaintiff/wife, with a credit to the Husband in the amount of $315,000. Upstate Property

The parties acquired a vacation home at — — — Road, now known as — — Drive, W., New York during the marriage with marital funds. There is no mortgage. The house was purchased for $305,200 during the marriage. It was listed for $550,000 in 2012, reduced to $450,000 in 2013 and appraised at $354,500 and is under contract for sale for $365,000. The house shall be sold and the parties are to equally divide the proceeds after payment of the usual and customary expenses of closing. P. J. T., Inc.

On February 8, 1988, approximately two (2) years prior to the parties' marriage, P. J. T., Inc. (of which defendant was a 50% owner) purchased B. N.'s P. J., a restaurant and pizzeria located in New York City (hereinafter the "Restaurant"). The total purchase price was $460,000. During the marriage, defendant acquired a full 100% ownership of P. J. T., Inc. and, therefore, of the restaurant/pizzeria d/b/a B. N.'s P. J.

Major points of contention during the trial were defendant's separate property claims and the value of the restaurant. Plaintiff engaged Dennis M. Kaplan, C.P.A. who provided an analysis of the "means of acquisition of assets available for equitable distribution", a "fair market value analysis" of P. J. T., Inc., a/k/a B. N.'s, as of September 11, 2012 (Tr Ex. 2), and his rebuttal of defendant's expert appraisal (Tr Ex. 3).

Mr. Kaplan explained the acquisition of P. J. T., Inc. ("B. N.'s") as follows: Mr. G. became a 50% owner of P. J. T., Inc. In 1988, prior to the date of marriage, in a $525,000 (sic) [it was actually $460,000] purchase together with G. S.. Mr. G., per his deposition testimony, put down $64,500 of funds from a variety of unspecified personal and family member's funds, which was supplemented by a $396,000 mortgage with the seller, of which half, or $198,000 was attributed to Mr. G. The mortgage was repaid within four years, out of profits from the business, according to Mr. G. Mr. G. was married — -, 1990, in the midst of this repayment period. Thereafter Mr. G. became a full 100% owner when the 50% interest of Mr. S. was purchased in 1994 for $200,000 by a cousin of Mrs. G., K. M., who in turn was then paid $200,000 by Mr. G. for the interest over a series of 3-4 years. Mr. M. and Mr. G.' family members were all paid out of profits from the business, according to Mr. G.' testimony. Accordingly, a substantial portion of the purchase price for the initial 50% interest acquired was paid for out of funds generated by the restaurant during the marital period, and the subsequent 50% interest acquired took place and was paid for entirely during the marital period, utilizing funds from the restaurant. Kaplan's Report p. 5 (Tr Ex. 1).

Mr. Kaplan estimated the value of the restaurant, "on a controlling, non-marketable basis is $630,000 (rounded) as of December 31, 2012." (Tr Ex. 2 p. 7).

By contrast, defendant's expert, Paul G. W. Fetscher, President of Great American Brokerage Inc., testified as to the value of the restaurant, using the comparable method; he claimed the value was $200,000 (Tr Ex. F-1 p. 7). Using the cash flow method, he claimed the value was $140,000. Much of his reasoning for the very low valuations was based on the short time left on the lease of only four (4) years and his belief that the profits averaged only $72,000 per year. (Id. at p. 20). Mr. Fetscher brokers "buys" and "sales" of restaurants. He holds the designation of CCIM (a Certified Commercial Investment Manager) and SCLS (Senior Certified Leasing Specialist). As such, and as he testified, he is used to looking at restaurant balance sheets. However, the Court notes that he failed to undergo the exhaustive review of the restaurant's books and records that Mr. Kaplan conducted. Mr. Fetscher accepted that the sales were in the $1 million dollar range with cash flow below $100,000. This was the premise upon which he found the restaurant was valued at $300,000. He then further discounted the value to $200,000 because of the short time left on the lease. He used comparatives ranging from $900,000 - $256,700. Mr. Fetscher completely ignored the fact that the sales for P. J. T., Inc. from 2008 - 2012 ranged from $1,030,205 to $1,267,745. He also used a capitalization rate of .25, as Mr. Kaplan critiqued, "...seemingly derived from the number of years remaining on the lease which is in itself not a valid capitalization factor...". Review of Restaurant Valuation Report. (Tr. Ex. 3). Further Mr. Kaplan wrote, The Fetscher report rests its conclusion on a "Cash Flow Method" which does not follow the standard Income Approach methodologies of Discounted Future Cash Flow or Capitalization of Earnings. Additionally, the net cash flow (profit) amount ($72,000) is subject to challenge as it is derived from an unsubstantiated straight three-year average of minimally adjusted net income, and does not account for unreported transactions. Id.

Mr. Fetscher's entire premise was faulty because this Court finds (as will be set forth below) that both the gross sales were understated as well as the net profit. Mr. Fetscher also failed to specifically value the business as of September 11, 2012, date of commencement. Based on the evidence presented, the Court does not accept his premise of an average of only $72,000 in average profits. His cash flow valuation is not accepted as a credible valuation.

Mr. Kaplan testified he was retained to determine the fair market value of P. J. T., Inc., a/k/a B. N.'s (hereinafter the restaurant). He used multiples of revenue under Revenue Ruling 59.60. He testified that he considered the following relevant factors as specified in Revenue Ruling 59.60: The history and nature of the business; The economic outlook of the United States and that of the specific industry/region in particular; The book value of the subject company's stock and the financial condition of the business; The earning capacity of the company; The dividend-paying capacity of the company; Whether or not the firm has goodwill or other intangible value; Sales of the stock and size of the block of stock to be valued; and The market price of publicly traded stocks or corporations engaged in similar industries or lines of business. Kaplan's Report page 3 (Tr Ex. 2)

In support of his qualifications, in addition to his training and his extensive resume of work as an expert, Mr. Kaplan testified that he had worked on a number of engagements in the restaurant business. He also testified as to the numerous documents he reviewed including tax returns, payroll and sales tax filings, credit card information, monthly totals from Seamless Web, trial balance worksheets, cash disbursement journal, register tapes, a cash ledger book dating back to 1995, documents relating to a NYS sales tax audit and deposition transcripts. He also met with the plaintiff and conducted site visits.

One issue became clear to the Court through the testimony of Mr. Kaplan and others; a large percentage of the Restaurant's business has grown to include internet based orders primarily through a business called "The Seamless Web", whereby customers order food through the internet. Most of the internet business is not cash. In 2013, the restaurant did $570,615 of business through Seamless Web. The downside of having more of its business conducted via the web, is that there is a cost to the restaurant, a percentage, that is paid to the Seamless Web entity, thus taking a bite out of the profits. Moreover, they are mostly credit and debit card transactions that also charge the Restaurant a fee. However, this does not mean that there is no cash coming into the restaurant. Mr. Kaplan reviewed a number of factors, including the past under reporting of sales tax, the lack of cash entered on the books, the manner in which cash was handled at the register, particularly when a receipt for cash was requested, the fact that employees appeared to be paid in cash, as well as the parties' lifestyle to opine a continued significant cash component of the business.

In reviewing the parties' lifestyle, he noted the parties owned a home in Westchester and they amassed substantial assets that indicate a cash flow that would enable this to occur.Regarding the issue of the under reporting of sales tax (See Tr Ex. 82 in Ev.), as a result of a sales tax audit, the State Tax Department proposed that the restaurant under reported sales tax between August 31, 2008 - February 28, 2011 in the amount of $629,280, or an average of about $228,829 per year, according to Mr. Kaplan. Defendant settled the audit by payment of $42,500 in additional sales tax.

Mr. Kaplan also considered a handwritten note in defendant's writing that sales for April, 2012 for P. J. T., Inc. were $114,005 (Tr Ex. 111 in Ev.). Mr. Kaplan took this and extrapolated further based on the alleged prior under reporting for sales tax purposes. He testified as to the lack of cash entries on the books throughout the year and then suddenly finding an entry at the end of the year for cash on hand. The Court took into evidence, a book that appeared to show two sets of books but it dated back to 1995 and, as such, was of little value. The Court also notes there was a shareholder loan on the books of $294,818. It was not listed on either parties Net Worth Statements as noted by Mr. Kaplan. This Court is not in agreement with Mr. Kaplan's analysis of revenue of $1.8 million dollars as a fair estimate of the restaurant's yearly revenue. This strikes the Court, based on the evidence presented, as inflated. The Court is of the opinion, based on the evidence presented, that the amount of under reporting has decreased because of the larger percentage of the business that is now conducted via Seamless Web.

However, if one were to add the average of previously under reported income that averaged $228,829 as suggested by the NYS sales tax audit to the year end sales for the restaurant of $1,231,692, (Tr Ex. 3 p. 33) the total is $1,460,521 as verified by Mr. Kaplan upon questioning by the Court. Using the 35% multiple recommended by Mr. Kaplan would lead to a valuation of $511,183, which this Court believes to be a more realistic assessment of the restaurant's fair market value.

The issue of the so called short term lease affecting the value of the Restaurant is belied by a number of factors: first, there are a number of places nearby that would be available to the Restaurant to lease, if need be, as the evidence showed; second, the fact that defendant's son was eager to take over running the Restaurant shows that he, who is aligned with defendant, has faith in the continuation of the Restaurant and; third, the history, dating back to when plaintiff purchased the business, of the landlord leasing the space to the Restaurant and continuing to re- lease, all supports the likelihood of the lease being renewed or of it being a nonissue relative to the Restaurant's value.

As to defendant's separate property claims, based on the evidence and testimony presented, (See Ex. C) the Court accepts the premise that Defendant and his partner initially paid $65,000 prior to defendant's marriage to purchase the Restaurant for a total of $460,000 with a mortgage of $395,000. Defendant, however, only provided proof of $10,000 that he initially paid. (See Ex. A in Ev.). Defendant appears to be a meticulous record keeper and had proof of ten (10) money orders in the amount of $1,000 each as his initial payment. He testified that they were bank checks. Actually they are "personal money orders". $460,000 was the purchase price. $395,000 was the mortgage. When asked, "The difference between 460 and 395, who paid it?" (Tr. Tr p 369, l 17). Defendant answered "We came out fifty/fifty." (Tr. Tr p 369, l18.) In other words, he did not really respond. The Court attempted to clarify the point but defendant remained cagey. The Court: ... looking at Exhibit G how much did you pay down initially? A. When we got the business? The Court: Yes. The Witness: We paid $65,000, me and my partner. The Court: And how much did you pay personally? The Witness: Half of that. We came out half, each one of us. (See Tr. Tr p 371-372.) The Court credits him with $10,000 downpayment as separate funds. It is unknown how he and his partner came to a 50/50 agreement of the initial purchase price, but defendant failed to prove that he paid out one-half of $65,000. Perhaps he and his partner had some side deal. If they did, it is not up to this Court to surmise. The wife alluded to and defendant confirmed the fact that he went to New Rochelle, initially, to open his partner's business for a while, after purchasing the Restaurant. To what extent, if any, this was part of their "deal", this Court does not know. In any event, defendant only proved a $10,000 initial separate property downpayment from him. In addition, defendant provided proof of payment of $5,786 monthly from the Restaurant toward payment of the mortgage. He failed to provide documentary proof of payment during the years 1988 - 1990 (the years prior to marriage). However, the Court finds that based on his testimony, that a number of boxes were left at the marital residence to which he did not have access as well as the documentation of a mortgage (See Tr. Ex C) and checks paid in 1991; the Court finds that he has sufficiently proven a separate property payment of ½ of $5,786 for 25 months (April, 1988 through April, 1990) - (25 months) at $2,893/month or $72,325. His total pre-marital payment was $82,325. Defendant conceded that after the marriage, he purchased 50% of the interest of the Restaurant ($200,000) from Plaintiff's cousin with marital funds. At issue is the money paid toward the mortgage after the marriage but before the purchase from the cousin from profits from the Restaurant, immediately following the parties' marriage. Plaintiff testified as to her contributions. Defendant stipulated to her being vital to the business (Tr Tr. p. 42). The Court views the money generated from the Restaurant that was used to pay the mortgage as follows: A separate asset paid off a loan after the marriage using profits generated from the business. Defendant worked at the Restaurant and plaintiff assisted both directly and indirectly during the time. She also testified that she helped manage the Restaurant when defendant was not there and filled in on many occasions whenever needed. The mortgage was paid off as a result of marital efforts in a separate business asset acquired prior to marriage. Thereafter, the parties acquired the other one-half interest in the Restaurant from plaintiff's cousin for $200,000, using marital funds. The reason the Court went through an exhausting analysis of the way that Courts deal with marital versus separate property is because this case presents the Court with an asset that was initially separate, that used marital efforts in a separate asset to pay off a separate property mortgage, that appreciated in value and ultimately was co-mingled with a marital asset. Does one give a separate property credit for the amount defendant initially paid plus his paydown of the mortgage prior to marriage? Clearly, the answer is in the affirmative. Defendant receives a separate property credit of $82,325. Does plaintiff receive a dollar for dollar credit of payments made during the marriage to pay down the mortgage? The answer is less clear. And what happens to the character of this separate asset once it is combined with a one-half interest that is marital? Should the Court calculate each party's pro rata share and make a determination based on this? In the end, the Court finds solace in the words of the Butler case "... the ultimate result must be viewed as equitable in light of all the factors which the Legislature has defined as material (See Domestic Relations Law §236[B] [5] [d] including any * * * factor which the Court shall expressly find to be just and proper' (Domestic Relations Law §236 [B] [5] [d] [13])." Butler, 171 AD2d at 93. Although Butler involved a residence and dates back to 1991, and this Court recognizes that businesses are treated somewhat differently than residences, the concepts are similar. Defendant enjoyed a larger interest in the business especially as he paid $82,325 to purchase the restaurant prior to marriage. In addition, this Court acknowledges the recent cases in which a spouse was awarded a less than a 50% interest in a business asset. See, Baron, 71 AD3d 807 (20%); Scher, 91 AD3d 842 (20%); Benabu, 104 AD3d 714 (33%); Giokas, 73 AD3d 688 (10%); Kerrigan, 71 AD3d 737 (35%).

Taking the foregoing into account, the Court credits defendant $82,325 of separate pre-marital contribution towards acquiring the Restaurant. Of the net value, $428,858, the Court awards plaintiff 30% or $128,657 as her equitable interest in the Restaurant. This is based on all the factors set forth herein including plaintiff's direct and indirect contributions in this long term marriage. The Restaurant was valued at $511,183. The calculation of the award is as follows:

Wife			Husband
	Restaurant Value	$511,183	-$82,325 Defendant's Premarital Interest
		$428,858
(30%) $128,657			$300,201 (70%)
			+ $82,325
			$382,526

— H. Avenue

The parties purchased property at — H. Avenue, Bronx, New York (hereinafter the "H. Property") in June, 2011. This property was initially purchased upon plaintiff's recommendation. She suggested the parties look for a property in Pelham Bay, Bronx. She felt it was a great area in which to invest. With defendant's consent, she searched for at least a year before finding the H. Property with the intention that one day it would belong to N. her son. She testified that she told him, "One day if you pay us back the money we put in, this could be yours, but you have to learn first." Tr Tr. p. 97. Plaintiff testified that her husband tried to get a mortgage initially in the son's name, claiming he would receive a lower mortgage rate. The son, not surprisingly to the wife, did not qualify for the mortgage. Ultimately the parties purchased the property and it was placed in defendant's name. After the purchase, N. immediately opened an account in his name into which he deposited rents he collected. Plaintiff claimed N. was not supposed to open the account in his name but when she brought the issue to the attention of her husband, he responded that they would deal with it later.

Defendant claimed the H. Property was intended for N., their son. In fact, in his Post Trial Memorandum he claims it was "transferred to son". Post Trial Memorandum of Law p. 5. If so, it was done in violation of the Automatic Orders set forth in DRL §236(B)(2) disallowing such transfers. But then, this never stopped Mr. G. from transferring marital property before and after commencement of the action as he saw fit as shall be seen below.

While it may have been the parties' intent to, one day, transfer the H. Property to their son, it was premature at the time of the divorce. This property was marital and, as such, its net value of $525,000 (appraised value) less $382,500 (mortgage) leaves a net equity of $142,500 of marital property. This property is awarded to the defendant for reasons that he is in control of the property with his son or has already divested himself of ownership without the consent of plaintiff or permission of the Court, with a credit to plaintiff for ½ the equity ($71,250). — — Street, Jersey City, NJ

Approximately four (4) years prior to the marriage, on September 26, 1986, the Husband purchased a 50% interest as tenant-in-common in real estate known as — — Street, Jersey City, NJ ("— — Street"). The - Building was an eight (8) family, income producing property. The other 50% was owned by G. P. and V. P., husband and wife. The purchase price was $180,000. The defendant claimed he and the P.'s paid $95,000 down ($47,500 each) and the sellers held a mortgage for $85,000, which matured in 1996. Defendant's payment of $47,500 is determined to be his separate property. The mortgage payment was $1,100 monthly on a ten (10) years amortization schedule but with a balloon payment due in five (5) years. Defendant's ½ share of the mortgage payments made prior to the marriage were in the sum of $24,200 and are determined to be his separate property. (One-half of $1,100 per month X 44 months for the time period September 26, 1986 through May 6, 1990.) In 1991 $52,000 was the balance due. Apparently defendant paid the entire amount. In order to raise the funds required to pay off the loan, defendant "borrowed" one-half of the balance from the Plaintiff's father - and one-half from the marital accounts. Between 1991 and 1996, the Defendant claimed he paid off the Plaintiff's father and the marital account in full from the proceeds of the rental income from the building.

The repayment of his obligations is evidenced by monthly checks payable to the Wife's father - and to the marital accounts. It appears from the evidence (Tr Ex. 17A in Ev.) and defendant's testimony, that the source of the repayment was the rental income.

On May 24, 1999 the defendant agreed to purchase his partners' 50% interest for $94,200. The terms of the deal were $44,200 at the closing, and $50,000 by promissory note over 5 years. Shortly after purchasing the property, in 1989 (some 10 years earlier), the P.'s had moved permanently to Greece, leaving the defendant to manage the building. Defendant claimed that the agreement between him and the P.'s was that the defendant would manage the building and receive approximately $6,000 per annum fee. From 1989 until 1999, the defendant was never actually paid the fee. Plaintiff testified that she suggested he buy out their interest in the building. In 1999 when they sold their interest to the defendant, he paid $44,200 from an account that he claimed he accumulated from the management fees, and the $50,000 balance would be paid out over five (5) years. He claimed he paid this from rental incomes from the building.

— — Street is an asset that is partly separate and partly marital. The defendant purchased the property before the marriage with a payment of $47,500. (Tr Tr. p. 391). He claimed he was able to pay the P.'s partly through his efforts managing the building and the balance through a payout over five (5) years from the rental income. Upon consideration of all the factors including that much of the value of this was assets either acquired before marriage or paid off via rentals from the asset, combined with plaintiff's indirect efforts of caring for the home and children, as well as her direct business suggestion of buying out the partners, the Court awards plaintiff 35% of the net value of this property,$775,000, less defendant's separate property award of $71,700 ($47,500 downpayment plus $24,200 mortgage payments prior to marriage), which is 35% of $703,300 or $246,155. ($775,000 - $71,700 = $703,300 (X.35) = $246,155.) Based on the evidence presented, the Court finds by clear and convincing evidence that the husband's initial payment of $47,500 plus one-half the mortgage payments before marriage of $24,200 for a total of $71,700 for — — Street was his separate property for which he shall receive a credit from the total value of the — — Street property. The property sold in 2012 for $925,000, with a net of $775,000. As set forth below, defendant used the proceeds to purchase ——- Avenue on August 1, 2012, right before the commencement of this action. — — — Street, Paterson, NJ

On — — , 2012, approximately seven (7) months prior to commencement of the action, the Husband formed — Realty LLC with his partner I. M. for the purposes of purchasing real property known as — — — Street, Paterson, NJ ("— — —Street") for $1,050,000. Mr. M. manages various buildings in the Paterson area. The Husband agreed to make him a 35% partner in the venture in exchange for his agreement to manage the property. Mr. M. would also receive a reduced management fee.

The purchase price was $1,050,000 and the Husband and Mr. M. obtained a loan from — Bank in the amount of $787,000. They still required approximately $240,000 to close. The Husband required approximately $160,000 plus expenses for his 65%, and Mr. M. required approximately $80,000 plus expenses for his 35%. The Husband claimed he wired in his separate funds from his Eurobank account in Greece in the sum of $167,000 - which is evidenced by the Eurobank statement showing the money coming out - and his U.S. bank statement shows the money coming in.

Mr. M. invested $15,000 of his own money. The Husband loaned him the balance in the amount of $75,000. The loan is evidenced by a note, security agreement, escrow agreement, and was prepared by the parties' attorney. The Court finds that defendant failed to prove that the money from Greece was his separate property, based on the testimony and evidence presented. He was unable to trace the funds back to a separate property source by clear and convincing evidence. He claimed the money was the result of a buyout by his brothers of property he was being gifted by his parents and hence was separate property. Moreover, the loan to Mr. M. of $75,000 was clearly marital. Plaintiff is awarded $37,500 from defendant for her share of the money loaned to Mr. M. and 50% or $83,500 from the "Greek" account as her equitable share for a total of $121,000 to plaintiff. Defendant is awarded this property. — — — Avenue, Paterson, NJ

On August 1, 2012, — — Realty, LLC—a limited liability company of which the Husband is the sole member—acquired title to — - — — Avenue, Paterson, NJ ("— - — — Avenue"). The purchase price was $985,000. To raise the funds to purchase the — — Building, the Defendant sold the — Building in an I.R.S. § 1031 tax deferred exchange.

The sale price of the — Building was $925,000, and the Defendant netted from the sale approximately $775,000. The plaintiff (see above) was awarded $246,155 (35% of the - Building's equity less defendant's separate property credit). An additional $210,000 was required for purchase of — - — — Avenue. On April 13, 2012, the Defendant issued a check from his — Bank****1975 in the sum of $50,000 for the deposit. This — Bank check was marital property. (This money apparently came from the Restaurant and was deposited into the — Bank.)

The balance of the funds - approximately $170,000 plus expenses, was borrowed by the Husband from P. J. T., Inc. On July 31, 2012, defendant signed a note to P. J. T., Inc. promising to repay $175,693. (See Ex. 63). This money appears to be part of the monies that were listed as shareholders loan, referred to by Mr. Kaplan. The difficulty with defendant using the profits of the Restaurant as his own piggy bank to do with as he saw fit, is that he can define it as he chooses - as it benefits him - shareholders loan of $294,818 or marital funds (profits) of over $170,000 plus $50,000. Recalling Mr. Kaplan's explanation that if, indeed this was a shareholders loan, it would increase the value of the business by a like amount, the Court does not accept that this was, in fact, a shareholders loan especially in light of the fact that defendant turned the Restaurant over to his son. Therefore, the Court awards plaintiff 50% of the marital funds of $294,818, or $147,409 and awards — - — — Avenue to defendant. — — Avenue, Passaic, NJ

On December 20, 2012, after the commencement of the action, the Defendant obtained a "refinance loan" on the — — Building in the sum of $735,000 (net of fees, $713,000). He used this loan to acquire title to further real estate investments. The first of which was — — Avenue, Passaic, NJ (the "— Building").

The purchase price of the — Building was $1,600,000. A first mortgage was obtained on the — Building in the sum of $1,120,000, leaving a balance of approximately $480,000 required to close. Upon sale of the — Building, because of Defendant's out-of-state residence, New Jersey required a "hold-back" of approximately $84,600¹ — which was ultimately returned to him on September 11, 2012. From this sum, plus accumulated rental income in the — - — Building, the Defendant issued a deposit of $100,000 on contract of the — — Avenue building. Thus, the defendant required additional funds to close — approximately $400,000. From the refinance proceeds obtained, he used approximately $400,000 towards the purchase of the — Building, leaving approximately $313,000 (after expenses) in savings for the purchase of the next building.

1 This money ($84,600) was accounted for in the distribution of — — Street (See Tr Ex. EE).

The building purchase used funds from — - — . The purchase of — - — used funds from — — Street. This asset was distributed. — — Street is awarded to defendant. — — Street/— — , Passaic, NJ

On — — , 2014, Defendant - via — — — , LLC, acquired title to the above-referenced property. The purchase price was $1,120,500. In order to purchase, the Defendant obtained a first mortgage in the sum of $834,375 (net of fees and expenses, $811,000). The balance of the purchase price, approximately $309,500, was obtained by utilizing the remaining of $313,000 from the refinance of his — - — — Avenue. This is awarded to defendant because the Court has already awarded plaintiff her marital interest in — - — — Avenue.

Greek Property

Based on the evidence and testimony presented that included deeds and the testimony of a Greek attorney, the Court finds that the property defendant owns in Greece was as a result of gifting and inheritance from his family and is his separate property except for the funds used to renovate them. All that was proven was a total of $35,000. Plaintiff is awarded $17,500 from defendant to reimburse her for marital funds expended on his separate property. — — — Avenue, Unit — , Jersey Shore

Plaintiff claims this property was purchased by plaintiff's father and that he placed it in joint names, with rights of survivorship with plaintiff. Defendant claims the parties purchased one-half with marital funds. No checks or other evidence was produced to support this claim. The Court finds this property is plaintiff's separate property by clear and convincing evidence by virtue of it being gifted and inherited. It is awarded to plaintiff. Equitable Distribution Summary for Business and Real Properties

Asset	Value	Awarded to Wife	Awarded to Husband
Marital Residence	$ 630,000	$630,000	$315,000 (W owes H)
W., NY	365000	182500	182500
H. Avenue	(Net) 142,500	71,250 (H owes W)	142500
P. J. T.*	511183	128,657 (H owes W)	382526
(Sold) — — Street	Net 775,000	246,155 (H owes W)
— — — Street	$1,050,000	121,000 (H owes W)
— — — Avenue	985000		$985,000
* ½ of profit taken from Restaurant		147,409 (H owes W)
— — Street		Awarded to Husband
— —		Awarded to Husband
Greek Properties		$ 17,500 (Husband owes Wife

Plaintiff is awarded the marital residence and owes defendant a credit of $315,000. The W. property will be sold and each party shall receive one-half of the net proceeds, projected to be $182,500 less one-half of the costs associated with closing. Defendant is awarded the H. Avenue property and shall pay plaintiff $71,250 (one-half of the net value) as her distributive share. Defendant is awarded the Restaurant business, P. J. T., and shall pay plaintiff $128,657 as her distributive share. Defendant is awarded — — Street (previously sold), — — — Street, — — — Avenue, — — Street, — — and the Greek properties. Defendant shall pay plaintiff $246,155 for her interest in — — Street, $121,000 for her interest in — — — Street, $147,409 for her half of profit used from the Restaurant for defendant's purchase of — — — Avenue and $17,500 due from defendant for marital funds used towards improvement of his Greek properties.

Plaintiff is awarded the condominium at the Jersey Shore.

In his Post Trial Memorandum defendant shows that there is $1,147,625 of equity in the investment properties plus $142,500 in equity in the H. property. Plaintiff is awarded $514,564 embedded in these properties plus one-half of the H. equity ($71,250) for a total of $585,814. Plaintiff owes defendant $315,000 for his interest in the marital residence. Defendant owes plaintiff $128,657 for her interest in P. J. T. Defendant owes plaintiff $17,500 for marital monies spent on defendant's Greek property. This nets out to defendant owing plaintiff $416,971 with the property distributed as set forth above. Life Insurance

Each party shall be entitled to one half of the cash surrender value of the Prudential Life Insurance policy with a value of $76,250 as of the date of commencement. Retirement Accounts

The wife shall be entitled to 50% of the marital share, as determined by the formula set forth in Majauskas v. Majauskas, plus any market increases or decreases thereto, of the husband's — — retirement fund which had a balance of $35,658.17 as of September 28, 2012. The parties shall each be responsible for ½ of the cost for the preparation of a QDRO if necessary to effectuate the transfer.

The husband shall be entitled to 50% of the marital share, as determined by the formula set forth in Majauskas v. Majauskas, plus any market increases or decreases thereto, of the wife's — — — retirement account which had a value of $200 as of the date of commencement of the divorce. E-Trade Account

The parties have already divided the e-trade account equally for a total of $346,000 each. Other Accounts

The following accounts are marital:

— Bank ***1975, titled in the defendant's name, with a balance of $2721 as of the date of commencement of the action; — ***4370, titled jointly, with a balance of $1700 as of the date of commencement of the action; — ***8727, titled in the defendant's name, with a balance of $389 as of the date of commencement of the action. Each party is awarded 50% of the total sum of the balances in these accounts as of the date of commencement.

The following account is also marital: — ***6798 titled in the defendant's name, with a balance of $100,382.97 as of the commencement date. This account was liquidated to purchase the gold bars which are distributed as set forth hereinbelow.

The following post commencement separate accounts are to be retained by the party in whose name they are titled:

Plaintiff: Astoria Federal, Apple Bank, Chase, Wells Fargo and Chase.

Defendant: E trade and — Bank. Personal Property

The parties are each awarded ½ the contents of the marital residence.

The parties are each awarded one half of the contents of the W. residence.

Each party is awarded the automobiles that are titled in his or her name. Gold Bullion Bars

Of the 7 bullion bars purchased by defendant for $126,910 (or for $18,130 each), only 5 are remaining, and 2 are unaccounted for. Based on the testimony of the parties the Court is unable to determine the fate of the 2 missing bars. Parties shall each be entitled to 2 of the 5 gold bullion bars. The 5th bar shall be sold and the proceeds divided. If there are any other gold bullion bars, the parties shall each be entitled to ½ of the value. Debt

Each party shall be solely responsible for the credit card debt in his or her name.Each party shall be solely responsible for any debt encumbering any property awarded to him or her pursuant to this Decision, and shall indemnify and hold the other party harmless with respect thereto.

MAINTENANCE" The amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts'. The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting.'" Kilkenny v. Kilkenny, 54 AD3d 816, 820 (2nd Dept. 2006). "In fixing the amount of a maintenance award, a court must consider the financial circumstances of both parties, including their reasonable needs and means, the payor spouse's present and anticipated income, the benefitting spouse's present and future earning capacity, and both parties' standard of living (citation omitted)." Morrissey v. Morrissey, 259 AD2d 472, 473 (2nd Dept. 1999). "The main purpose of a maintenance award is to give the nonmonied spouse economic independence (citation omitted)." Giokas v. Giokas, 73 AD3d 688 (2nd Dept. 2010).

The Court's analysis in Keane v. Keane, 8 NY3d 115 (2006), commenting upon Grunfeld v. Grunfeld, 94 NY2d 696 (2000), provides illumination regarding the prohibition of double counting when distributing a business that is a tangible income producing asset as opposed to an intangible asset, or a service business and awarding maintenance payments from income earned in that business. The Keane Court wrote,

Double counting may occur when marital property includes intangible assets such as professional licenses or goodwill, or the value of a service business. As we said in Grunfeld, "[i]n contrast to passive income-producing marital property having a market value, the value of a professional license as an asset of the marital partnership is a form of human capital dependant upon the future labor of the licensee" (citations omitted). It is only where "[t]he asset is totally indistinguishable and has no existence separate from the [income stream] from which it is derived" (id.) that double counting results.

Here, the rental property was split between the parties for distributive purposes. The rental income from that property was then considered in determining maintenance. The property will continue to exist, quite possibly in the husband's hands, long after the lease term has expired, as a marketable asset separate and distinguishable from the lease payments. The mortgage payments, in contrast, were properly distributed as an asset and not counted for maintenance purposes because the payments themselves were the marital asset. Id at 122.

The prohibition against double counting when awarding maintenance and distributing a business, does not apply to the distribution of tangible, income-producing assets. Id.; See, Weintraub v. Weintraub, 79 AD3d 856 (2nd Dept. 2010) (prohibition against double counting did not apply to the distribution of the parties' plumbing and fire sprinkler contracting company which is a tangible, income producing asset); Groesbeck v. Groesbeck, 51 AD3d 722 (2nd Dept. 2008) (double counting rule inapplicable to distribution of husband's home improvement contracting business because the business is a tangible, income producing asset). Similarly, in the instant matter, defendant's business, P. J. T., Inc. is a tangible, income producing asset. Therefore, the prohibition against double counting with respect to the award of maintenance and the distribution of defendant's business is not applicable in this matter.

In determining the appropriate amount and duration of maintenance, the Court is required to consider the following factors as enumerated in Domestic Relations Law §236(B)(6):

1.the income and property of the respective parties including marital property distributed pursuant to subdivision five of DRL §236;

2.the length of the marriage;

3.the age and health of both parties;

4.the present and future earning capacity of both parties;

5.the need of one party to incur education or training expenses;

6.the existence and duration of a pre-marital joint household or a pre-divorce separate household;

7.acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;

8.the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;

9.reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;

10.the presence of children of the marriage in the respective homes of the parties

11.the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity;

12.the inability of one party to obtain meaningful employment due to age or absence from the workforce;

13.the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;

14.the tax consequences to each party;

15.the equitable distribution of marital property;

16.contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;

17.the wasteful dissipation of marital property by either spouse;

18.the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

19.the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and

20.any other factor which the Court shall expressly find to be just and proper.

In addition to these enumerated factors, the parties' pre-divorce standard of living is an essential component of evaluating and properly determining the duration and amount of the maintenance award to be accorded a spouse. Hartog v. Hargog, 85 NY2d 36, 50-51 (1995).

In determining a party's support obligation, the "court need not rely upon a party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential (citations omitted)." Brown v. Brown, 239 AD2d 535 (2nd Dept. 1997). "[W]here a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed (citation omitted)." Rohrs. Rohrs, 297 AD2d 317, 318 (2nd Dept. 2002).

Based on the foregoing, the Court finds defendant's commensurate income which is based on what he is capable of earning from the Restaurant ($184,000 plus significant cash income) as well as income from the real estate investments of over $100,000 plus cash from tenants, is at least in the amount of $350,000 yearly. This is a long term marriage - 22 years. The parties are 50+ years old. Plaintiff has a B.A. Degree and is interested in pursuing an advanced degree. No other credible information was presented as to her future earning capacity. Defendant claimed through his testimony that the restaurant business was getting too stressful for him but failed to provide any other evidence of this claim. The parties have been living separately since 2012. Plaintiff claims defendant created problems when she tried to work outside the home but she did not try to do so since the mid 2000's. Defendant claims he tried to get her to help out more in recent years but she was too busy playing tennis. The truth probably lies in the fact that in the past few years, plaintiff has been trying to get out of the marriage and was unwilling to become more involved in the Restaurant. However, she did help out at the Restaurant when defendant specifically asked for her help. The Court does not find that domestic violence inhibited plaintiff's ability to become self-supporting, however, her job as homemaker, housewife and mother, as well as defendant's unhappiness with her working outside the home are factors the Court has considered.

Plaintiff will need several years to become self-supporting if she gets an advanced degree and then seeks employment in her field. Her career opportunities have been delayed as a result of her time as a homemaker. She raised two children primarily on her own as defendant worked significant hours, seven days a week. The children are now of majority age. Maintenance to be paid to plaintiff shall be taxable to her and tax deductible to defendant. Plaintiff is receiving significant equitable distribution. She has contributed significantly as a spouse, parent and supporter to defendant's career in the Restaurant and real estate business. There was no credible proof of wasteful dissipation by either spouse. Defendant transferred significant marital assets but plaintiff will be compensated by equitable distribution in this decision. Plaintiff will be required to obtain her own health insurance upon the issuance of the divorce and will continue to have significant expenses, based upon her testimony and Net Worth Statement.

Based on the foregoing, this Court awards plaintiff maintenance for 9 years as follows: the sum of $5000 per month commencing December 1, 2014 and continuing until November 1, 2017 at which time maintenance shall be in the sum of $4000 per month until November 1, 2020, at which time maintenance shall be in the sum of $3000 per month until October 31, 2023. Maintenance shall be taxable to plaintiff and tax deductible to defendant, and shall cease upon the earlier of October 31, 2023, "the death of either party or upon the [wife's] valid or invalid marriage, or upon modification pursuant to paragraph (b) of subdivision nine of [DRL §236 B] or [DRL §248]." DRL §236 B (1)(a). The Pendente Lite Support Order shall be complied with until commencement of the maintenance award pursuant to this Decision After Trial. Life Insurance

The husband shall maintain life insurance of $400,000 to insure his maintenance liabilities with the wife as irrevocable beneficiary; said policy may be in declining amounts sufficient to insure his obligation.

He shall provide proof of same upon request within 60 days of the Judgment of Divorce and annually thereafter. CONCLUSION

The Court has based its decision on a preponderance of the evidence except for those issues where clear and convincing evidence is required.

The Court has considered the additional contentions of the parties not specifically addressed herein and finds them to be without merit. Those matters, other than those stipulated to, not specifically addressed are denied in the Court's discretion.

Both parties are on notice pursuant to Domestic Relations Law §255 "... that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan."

Plaintiff's counsel is directed to settle proposed Findings of Fact and Judgment of Divorce, in accordance with this Decision, and including the usual and customary language not specifically contained herein, within 30 days of the date of this Decision.

The forgoing constitutes the Decision of this Court. E N T E R

Dated: White Plains, New York

November 7, 2014HON. LINDA CHRISTOPHER, J.S.C.