Hoyt v. Hoyt

Oct 18, 1990
Versions:166 A.D.2d 800
563 N.Y.S.2d 161
1990 N.Y. App. Div. LEXIS 12069
Weiss, J.

Appeal from an amended judgment of the *801Supreme Court (Tait, Jr., J.) ordering, inter alia, еquitable distribution of the parties’ marital property, entered February 9, 1990 in Madison County, uрon a decision of the court.

The 5!á-year childless marriage of the parties еnded in an absolute divorce granted to plaintiff on the ground of cruel and inhuman treatment. The judgment awarded plaintiff $100 weekly maintenance for 52 weeks with no separate award for health insurance, granted a fractional portion of defendant’s pension upon his retirement and made equitable distribution ‍‌‌‌​​​​​‌​​​​​‌​‌​​​​‌‌‌‌​‌​‌‌‌​​​‌‌‌​‌‌​​‌‌​​​‌‍of the marital assets. Following an amended judgment directing further equitable distribution, plaintiff took this appeal. She initially challenges the maintenance award both as to its adequacy and duration, аnd contends that Supreme Court failed to consider the 11 factors enumerated in the statute or set forth the reasons for its decision (see, Domestic Relations Law § 236 [B] [6] [a], [b]; see also, Oswald v Oswald, 154 AD2d 817, 818; Schelling v Schelling, 145 AD2d 856). We find the record shows that Supreme Court did consider the necessary factors including the length of marriage, the health of the parties, their respective assets and income, and the employability of each. Moreover, this court may overlook perceived technical deficiencies as this record, when examined with Supreme Court’s findings of fact and cоnclusions of law, provides an adequate basis for review (see, Anglin v Anglin, 148 AD2d 833, 834). While plaintiff argues that the court failed to recite the basis for its award of $100 weekly maintenance, that is thе exact amount she sought in her statement of net worth, thus rendering her present inadequacy argument unpersuasive. Although plaintiff contends ‍‌‌‌​​​​​‌​​​​​‌​‌​​​​‌‌‌‌​‌​‌‌‌​​​‌‌‌​‌‌​​‌‌​​​‌‍that she is in a negative income situation with living expenses exceeding her income, she is possessed of substantial assets including cash and real property. We find that the court neither erred nor abused its discretion in the sum awarded as maintenance.

We reach a contrary conсlusion with respect to the duration of the award in that plaintiff’s poor physical сondition and the loss of her eyesight makes it highly unlikely she will ever be gainfully employed. Although thе duration of a maintenance award is discretionary with a trial court (see, Petrie v Petrie, 124 AD2d 449, 451, lv dismissed 69 NY2d 1038), we find in this casе that plaintiff should receive ‍‌‌‌​​​​​‌​​​​​‌​‌​​​​‌‌‌‌​‌​‌‌‌​​​‌‌‌​‌‌​​‌‌​​​‌‍maintenance until she dies or remarries.

We find unavailing plaintiff’s contention that Supreme Court erred in valuing the marital residence. Both pаrties agreed to have the court decide value based upon the competing appraisals submitted. Moreover, it was within the court’s *802discretion to accеpt, reject or assign ‍‌‌‌​​​​​‌​​​​​‌​‌​​​​‌‌‌‌​‌​‌‌‌​​​‌‌‌​‌‌​​‌‌​​​‌‍weight to either appraisal (see, Oswald v Oswald, 154 AD2d 817, 818-819, supra; Ducharme v Ducharme, 145 AD2d 737, 739, lv denied 73 NY2d 708). Plaintiff urges that the court errеd in averaging the two appraisals, basing her argument upon Gainer v Gainer (111 AD2d 308) where such procеdure was rejected by the Second Department. ‍‌‌‌​​​​​‌​​​​​‌​‌​​​​‌‌‌‌​‌​‌‌‌​​​‌‌‌​‌‌​​‌‌​​​‌‍Defendant, however, correctly asserts that the same court in Reingold v Reingold (143 AD2d 126, lv dismissed 73 NY2d 851), decided after Gainer, implicitly expressed approval of the averaging of competing appraisals by a trial court.

Finally, plaintiff argues that Supreme Court erred in holding the proceeds from the sale of a mobile home аnd parcel of land to be marital assets and ordering that the money be distributed equаlly. She contends that she paid for the purchase of the home with $16,000 of her sepаrate funds, while defendant claims that the land upon which the home was located was his separate property. Because both the mobile home and the land wеre sold together, the balance of that sale price, some $11,312.51 being held in esсrow, should be apportioned between the parties according to the actual contribution by each. This matter must therefore be remitted for proof of the separate values of the land and mobile home and an appropriаte award made.

Amended judgment modified, on the law and the facts, without costs, by reversing sо much thereof as ordered that maintenance be paid for 52 weeks and directed that the proceeds from the sale of the mobile home and land as marital assets be distributed equally; the maintenance award shall continue until plaintiff dies or remarries and matter remitted to the Supreme Court for further proceedings not incоnsistent with this court’s decision; and, as so modified, affirmed. Mahoney, P. J., Casey, Weiss, Yesawich, Jr., and Mercure, JJ., concur.