Opinion
February 10, 1999
Appeal from Order of Supreme Court, Oneida County, Grow, J. — Matrimonial.
Present — Denman, P. J., Green, Hayes, Pigott, Jr., and Balio, JJ. [As amended by unpublished order entered May 7, 1999.]
Order unanimously modified on the law and as modified affirmed without costs, judgment ordered imposing sanction and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Defendant appeals and plaintiff cross-appeals from an order distributing the parties' marital property and awarding temporary maintenance to plaintiff. Several issues raised by the parties concern the identification and distribution of assets of an insurance agency of which defendant was a part owner until he sold his interest in 1986 to Goldome Bank and Goldome Corp. (Goldome). We reject the contention of defendant that Supreme Court improperly valued his separately owned stock in that agency. The agency was a closely-held corporation and had its own formula for the valuation of its stock. Although that formula is not conclusive evidence of the value of the agency's stock, it is a factor to consider in determining the value of defendant's stock during the year in which the parties were married ( see, Amodio v. Amodio, 70 N.Y.2d 5, 7-8). We cannot conclude that the court abused its discretion in relying primarily on that formula in this case. The court also properly determined that the appreciation in value of that separately owned stock constituted marital property. Plaintiff made direct contributions to the agency as a member of its Board of Directors, an officer, and the creator and manager of its marketing and sales center, and in establishing commercial lines, presenting seminars and completing invoices ( see, Domestic Relations Law § 236 [B] [1] [d] [3]; Burns v. Burns, 84 N.Y.2d 369, 374).
We reject the contention of defendant that the court abused its discretion in awarding temporary maintenance to plaintiff and the contentions of plaintiff that the court should have awarded counsel fees and permanent maintenance to her. The amount and duration of maintenance are matters left to the sound discretion of the trial, court ( see, Majauskas v. Majauskas, 61 N.Y.2d 481, 494; Torgersen v. Torgersen, 188 A.D.2d 1023, 1024, lv denied 81 N.Y.2d 709). The court considered the factors' relevant to awards of maintenance and counsel fees, and we perceive no basis to disturb the court's determinations.
The court erred, however, in using the date of commencement of the action in valuing the marital residence. "As a general rule, the value of the marital residence should be fixed as of the time of trial" ( Hutchings v. Hutchings, 155 A.D.2d 971, 971-972; see also, Rosenberg v. Rosenberg, 145 A.D.2d 916, 918, lv denied 74 N.Y.2d 603; Wegman v. Wegman, 123 A.D.2d 220, 232). The record establishes that a decline in the real estate market between the date of commencement of the action and the date of trial resulted in a decrease in the market value of the marital residence. Thus, the value of the residence as of the date of trial, i.e., $198,000, should have been utilized to avoid providing a windfall to either party ( see, Wegman. v. Wegman, supra, at 232).
The court also erred in concluding that the agreement defendant made with Goldome and the insurance agency constituted an executory employment contract. It concluded that, although no payments were made prior to commencement of the action, only such payments would have constituted marital property. The agreement was made to resolve claims that defendant had with respect to commissions, fees and other employment contract benefits earned by defendant prior to his retirement in March 1989 and prior to the commencement of the divorce action. Thus, the agreement is in the nature of a severance and settlement contract in part for compensation earned during the marriage and constitutes marital property ( see, Richmond v. Richmond, 144 A.D.2d 549, 551). The agreement provides for the payment of $238,790 to defendant, and that amount should have been treated as marital property.
The court also erred in failing to identify as marital property the amount in defendant's checking account and Aetna IRA account on the date of commencement of the action. The record establishes that $4,783 was on deposit in the checking account and that the value of the IRA account on that date was $14,156. Consistent with the foregoing, we conclude that the total value of the parties' marital property is $1,363,304. The parties do not challenge the court's determination to divide the marital assets equally, and thus each party is entitled to $731,652. We therefore modify the order by increasing the sum of liquid assets that defendant must pay plaintiff from $278,090.44 to $430,455.
Plaintiff seeks a sanction pursuant to CPLR 5528 N.Y.C.P.L.R. (e) for the failure of defendant, as the appellant, to include in the appendix "such parts of the record on appeal as are necessary to consider the questions involved, including those parts the appellant reasonably assumes will be relied upon by the respondent" (CPLR 5528 [a] [5]; see, 22 NYCRR 1000.4 [d] [2] [i]). Plaintiff prepared a supplemental appendix consisting of 1,227 pages. Although some of those pages were repetitious of pages in the appendix provided by defendant, the majority of the supplemental appendix consisted of material essential to the resolution of the, issues raised on appeal. Thus, pursuant to CPLR 5528 (e), we direct defendant to pay one half of plaintiff's expense in the preparation and submission of the supplemental appendix, and we remit the matter to Supreme Court to determine the amount of that expense.
We have reviewed the remaining contentions of the parties and conclude that they lack merit.