Ducharme v. Ducharme, 145 A.D.2d 737

— Mercure, J.

Aрpeal from a judgment of the Supreme Court (Walsh, Jr., J.), ordering, inter alla, equitable distribution of the parties’ marital property, entered May 1, 1986 in Clinton County, upon a decision of the court, without a jury.

The parties were married in July 1968. They are the parents of three children, all of whom reside with plaintiff. Deterioration of the marital relationship caused the parties to separate and plaintiff to commence an action for divorсe in November 1980. Defendant commenced a separate action for divorce in April 1984, and the actions were joined and proсeeded to trial in May 1984. Following a lengthy trial, adjourned from time to time and not concluded until April 1985, Supreme Court granted a dual judgment of divorce аnd distributed the marital property. The principal assets of the marriage, the marital residence and family farm, were divided equally between thе parties. The court directed defendant to convey his interest in the marital residence to plaintiff, pay plaintiff $115,747.14 as a distributive award, in exсhange for a conveyance of her interest in the farm property, and pay one half of plaintiffs expert witness fees and $120 per week for child ‍‌​​‌‌‌‌‌​​‌‌​​‌​​​‌‌‌​‌​‌‌​​​‌‌‌‌‌‌‌​​‌‌‌​​​‌‌​​‍support. On this appeal, defendant asserts that errors were made in the award of expert witness fees and child support. Defendant’s principal challenge, however, is to Supreme Court’s identification, valuation and eventual distribution of marital assets.

Initially, defendаnt argues that Supreme Court erred in classifying marital property as of May 1984. We agree, but find that the error was harmless. Domestic Relations Law § 236 (B) (1) (с) defines marital property as "all property acquired by either or both spouses during the marriage and before * * * the commencement of a matrimonial action” (emphasis supplied). The date that plaintiff commenced her action marked the end of the accumulation of marital property and, therefore, of the economic partnership (see, Bara v Bara, 115 AD 2d 628, 630, lv denied 70 NY2d 609; see also, Muller v Muller, 116 Misc 2d 660; Samuelson, Notes and Comments, 15 Fam L Rev 1-2 [Dec. 1983]). Accordingly, Supreme Court should have classified mаrital property as of the date of commencement of plaintiffs action notwithstanding defendant’s institution of the second action shortly prior to trial. However, since each of the assets which came into existence between the date of commencement of plaintiffs action and May 1984 was traceable to a marital asset, as a substitute or automatic accretion, the error is harmless (see, Siegel v Siegel, 132 AD2d 247, 255, appeal dismissed 71 NY2d 1021). Here, all livestock in existence at the time of trial were either on the farm in November 1980 or were the progeny of that livestock. Further, all equipmеnt and machinery classified as marital property was either purchased prior to November 1980 or, if purchased thereafter, by trading in prе-1980 ‍‌​​‌‌‌‌‌​​‌‌​​‌​​​‌‌‌​‌​‌‌​​​‌‌‌‌‌‌‌​​‌‌‌​​​‌‌​​‍equipment and paying the balance due with farm profits. Farm income during the pendency of the action was itself a marital asset, as evidеnced by the fact that the parties continued to file joint income tax returns. Therefore, there was no change in the over-all complexion of the assets (cf., Brennan v Brennan, 103 AD2d 48, 53-54). As with many businesses, the machinery, livestock and equipment of a family farm will fluctuate over a period of months or years.

Similаrly, we do not find that Supreme Court abused its discretion in valuing the marital property as of the time of trial. In Lord v Lord (124 AD2d 930), this court held that “unless doing so would be patently inequitable, valuation of marital property is properly fixed at the commencement of the action” (supra, at 932; cf., Wegman v Wegman, 123 AD2d 220, 234 [where the Second Department held thаt the valuation date is to be chosen by the trial court in light of the particular circumstances presented]; Florescue, Domestic Relаtions Law, NYU, May 20, 1987, at 1, col 1). However, under the unique circumstances of this case we conclude that it would he patently inequitable to value the marital property as of November 1980. Supreme Court’s finding that by then the parties ‍‌​​‌‌‌‌‌​​‌‌​​‌​​​‌‌‌​‌​‌‌​​​‌‌‌‌‌‌‌​​‌‌‌​​​‌‌​​‍had firmly in place all of the farm improvements, additions and programs which bore fruit in subsequent years is amply supported by the record. This, coupled with the fact that defendant retained for his own benefit all profits from the farm during the 3V^-year pendency of the action and the substantial increase in the value of the asset during that period, justified the utilization оf the later date by Supreme Court (see, Wegman v Wegman, supra, at 237). While the labor of defendant, in conjunction with market forces and inflation, arguably contributed to the substantiаl increase in value, any claimed inequity is more than offset by defendant’s retention of farm profits and by his receipt of the tax benefit of unused dеpreciation of $97,772 for 1982 and thereafter, largely as a result of farm capital improvements made by the parties prior to Novembеr 1980. When a business is under the complete control of one spouse, the court must select a valuation date that will permit a meaningful and rеalistic appraisal of the business’s true worth, to avoid patent inequities to the nonmonied spouse (see, Samuelson, Notes and Comments, 20 Fam L Rev 1-2 [June 1988]; see also, Siegel v Siegel, 132 AD2d 247, supra; Wegman v Wegman, 123 AD2d 220, supra).

Next, we turn to defendant’s assertion that Suрreme Court should not have credited the testimony of plaintiff’s expert witnesses. It is well settled that the weight to be attributed to expert testimony is left tо the trier of fact (Wilbur v Wilbur, 116 AD2d 953, 954; cf., Capasso v Capasso, 129 AD2d 267, 271, lv denied 70 NY2d 988) and we see no reason to disturb Supreme Court’s findings in regard to the valuation testimony. Nor did the court err in its distribution of the marital property. Supreme Court gave a clear and detailed analysis of the factors it considered, so as to provide a basis for intelligent appellate review (see, Gape v Gape, 110 AD2d 621), finding that plaintiff engaged in the performance of various forms of farm labor even after the ‍‌​​‌‌‌‌‌​​‌‌​​‌​​​‌‌‌​‌​‌‌​​​‌‌‌‌‌‌‌​​‌‌‌​​​‌‌​​‍birth of the children; that shе devoted herself to the rearing of the children, to the care and cleaning of the home, the preparation of the meals, washing, irоning and cooking; that she kept the books and records of the farm, paid the bills and was a party to all decisions relating to the operаtion of the farm and its development. Given Supreme Court’s findings, which are amply supported by the record, its distribution of marital assets on a 50-50 basis cannot be said to constitute an abuse of discretion and, thus, should not be disturbed (see, Petrie v Petrie, 124 AD2d 449, 450, Iv dismissed 69 NY2d 1038).

We do agree with defendant that Supreme Court erred in its valuation of outstanding financial obligations. Marital debt should have been determined as of April 1984, the time when marital property was evaluated. Instead, Supreme Court evaluated marital debt as of May 1985, at the conclusion of the trial. The record discloses that, as of April 1984, $7,503.02 was owed on various itеms of farm equipment and $3,637.40 on the silos, and the outstanding mortgage balance was $89,048.81, rather than $83,330.71. The aggregate debt of $100,189.23 must be deducted from the totаl marital property of $374,825, leaving a net value of $274,635.77; each party’s share will be $137,317.88. Plaintiffs distributive award must, accordingly, be reduced to $107,317.88.

Defendant’s remaining arguments do not require extended discussion. Supreme Court did not abuse its discretion in directing defendant to pay one half of plaintiffs expert fees (see, Domestic Relations Law § 237 [a]; Brocato v Brocato, 126 AD2d 695; Ahern v Ahem, 94 AD2d 53; Walsh v Walsh, 92 AD2d 345). Giving due regard to the relevant statutory factors (Domestic Relations Law § 236 ‍‌​​‌‌‌‌‌​​‌‌​​‌​​​‌‌‌​‌​‌‌​​​‌‌‌‌‌‌‌​​‌‌‌​​​‌‌​​‍[B] [7]), we conclude that the record substantiates the award of child support.

Judgment modified, on the law, without costs, by reducing plaintiffs distributive award to $107,317.88, and, as so modified, affirmed. Kane, J. P., Casey, Weiss, Levine and Mercure, JJ., concur.

Case Details

Case Name: Ducharme v. Ducharme

Court Name: Appellate Division of the Supreme Court of the State of New York

Date Published: Dec 8, 1988

Citations: 145 A.D.2d 737; 535 N.Y.S.2d 474; 1988 N.Y. App. Div. LEXIS 12973

Court Abbreviation: N.Y. App. Div.