98 A.D.2d 692 | N.Y. App. Div. | 1983
Lead Opinion
•— Judgment, Supreme Court, New York County (Leonard N. Cohen, J.), entered January 27, 1982, which granted maintenance and an equitable distribution of property on a previously granted divorce, affirmed, without costs. The facts are set forth in detail in the trial court’s careful and comprehensive opinion (111 Mise 2d 965) and need not be restated. Upon the parties’ cross appeals from the judgment entered we affirm essentially for the reasons stated in that opinion, but with the following additional comments. One of the issues presented required construction of section 236 (part B, subd 1, par d, cl [3]) of the Domestic Relations Law, which included in the definition of separate property “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”. Trial Term found it significant (p 979) that this clause does not contain specific language requiring the court to consider a spouse’s “ ‘contributions and services * * * as a spouse, parent, wage earner and homemaker, * * * to the career or career potential of the other party’ ”, which are prescribed as relevant factors in determining the equitable distribution of marital property (Domestic Relations Law, § 236, part B, subd 5, par d, cl [6]) and the amount and duration of maintenance (§ 236, part B, subd 6, par a, cl [8]). From this the court concluded (111 Mise 2d, at p 979): “It would appear therefore that the Legislature intended a construction of the meaning of a spouse’s ‘contribution of efforts’ toward the appreciated value of ‘separate property’ to exclude considerations of services as a spouse, parent, wage earner, homemaker or other spousal career advancement factors.” We agree that the omission of the quoted language from section 236 (part B, subd 1, par d, cl [3]) is relevant to the construction of the section. However, we decline to foreclose the possibility that other cases may disclose circumstances in which services as a spouse, parent, wage earner, or homemaker in fact contributed to the appreciation of the other spouse’s separate property, circumstances not presented in the instant case. Another issue meriting comment arises from Trial Term’s observation that a certain parcel of undeveloped realty in Arizona, valued at $70,000, was “excludable from marital property as a gift to a third party.” (Ill
Dissenting Opinion
dissents in part in a memorandum as follows: The parties were married in 1939. At that time, the wife was a successful singer and actress, earning more than $500 per week, which enabled her also to. support her handicapped sister and two brothers. At the husband’s insistence, she gave up her promising career to become a full-time wife, homemaker and eventually, mother of four sons. At the time the couple married, the husband’s income was only $50 per week, which he received from a family corporation formed in 1938. They lived together until late 1972 or 1973, when the husband left to move in with his then paramour, now his wife. The parties had been married for 41 years at the time the case came on for trial in 1980. During the marriage, the husband concentrated on the family business, achieving extraordinary financial success. The wife’s contributions were also exceptional, although noneconomic in nature. After a lengthy trial, in a very comprehensive and painstaking opinion, the trial court concluded: “the wife’s contributions and services are considered and they were substantial as a homemaker, spouse, mother of four sons, and manager of the households, both here and abroad. Her faithful devotion, her social companionship, intelligence, charm, friendships with the wives of his business contacts and linguistic fluency were all of importance to the husband in his worldwide social circles and in his career. (Domestic Relations Law, § 236, part B, subd 6, par a, cl [8].) This marriage was one in which the woman relinquished a budding career, to raise a family and to be totally supported and dependent upon her husband in accordance with his wishes.” (111 Misc 2d 965, 990.) I fully agree. However, where appropriate, the wife’s contributions and services should be considered, not only with respect to marital assets, but also with regard to separate property. On that basis, I find that, by reason of her indirect contributions to the increase in his separate property, the wife should receive the full ownership of the parties’ residence at Avenue Foch in Paris, where she has been living for some time. As to the background, the wife did play a role in assisting the husband to increase his stock interest in Diamond Distributors, Inc. (D.D.I.), a family-owned business which had been formed one year before the marriage. This stock interest is by far the largest asset in his estate, concededly separate property, which the trial court declined to consider or otherwise make provision for in its plan for equitable distribution. The most significant element in valuing plaintiff’s stock interest in D.D.I. is corporate retained earnings which, in a relatively short period from December, 1977 to September, 1980, increased plaintiff’s stock equity from $2,261,056 to $3,273,242. The trial court termed defendant’s contributions as “primarily indirect and speculative”. (111 Misc 2d, at p 979.) It was held that the increase in value was attributable to market factors, the worldwide management of D.D.I., the personal, social and business associations and relationships of the husband