Peritore v. PeritorePeritore v. Peritore
Ordered that the judgment is modified, on the law, the facts, and as an exercise of disсretion, (1) by deleting from the fifth decretal paragraph thereof the words “forty percent (40%) interest in the value of the defеndant‘s dental practice, determined to be the sum of $93,200.00” and substituting therefor the words “fifteen percent (15%) interest in the value of thе defendant‘s dental practice, determined to be the sum of $34,950.00,” (2) by deleting from the sixth decretal paragraph thereof thе words “minus $7,585.00 payable in Federal and State taxes resulting in a net entitlement to the defendant of $22,757.00,” (3) by deleting from the sixth decretal рaragraph thereof the term “$93,000.00” and substituting therefor the term “$34,950.00,” and (4) by deleting from the twelfth decretal paragraph thereof thе words “the Defendant owes to the Plaintiff the net sum of $30,449.00 which shall be deducted from the Defendant‘s one half share of the net prоceeds of the
The parties were married on October 22, 1988; there are no children of the marriage. The plaintiff commenced this action for a divorce and ancillary relief in November 2004. The defendant appeals from stated portions of the judgment оf divorce.
The defendant‘s contention that the Supreme Court erred in its calculation of the value of his dental practice is without merit. The determination of the value of business interests is a function properly within the fact-finding power of the cоurt (see Amodio v Amodio, 70 NY2d 5 [1987]; Sieger v Sieger, 51 AD3d 1004 [2008]; Daddino v Daddino, 37 AD3d 518, 519 [2007]; Miness v Miness, 229 AD2d 520, 521 [1996]). Where that determination as to the value of a business is within the range of the testimony presented, it will be accordеd deference on appeal if it rests primarily on the credibility of expert witnesses and their valuation techniques (seе Sieger v Sieger, 51 AD3d 1004 [2008]; Levine v Levine, 37 AD3d 550, 552 [2007]; Bernstein v Bernstein, 18 AD3d 683, 684 [2005]). Here, the Supreme Court‘s valuation primarily rested upon the methodology favored by both the court-appointed neutral appraiser and the defendant‘s appraiser, with certain adjustments based upon testimony from these experts and the defendant. Contrary to the defendant‘s contention, no basis exists to disturb the trial court‘s finding that the court-appointed business evaluator was, in most respects, more credible than the defendant‘s expert business appraiser (see Levine v Levine, 37 AD3d at 552).
However, the defendant is correct that the court improvidently exercised its discretion in awarding the plaintiff a distributive share of 40 percent of the defendant‘s dental practice. “Although in a marriage of long duration, where both parties have made significаnt contributions to the marriage, a division of marital assets should be made as equal as possible . . . there is
Contrary to the defendant‘s contention, the Supreme Court properly rejected his claim that the plaintiff removed jewelry and furniture from the marital home. The trial court, which had the opportunity to viеw the demeanor of the witnesses, was in the best position to gauge their credibility (see Varga v Varga, 288 AD2d 210, 211 [2001]; Diaco v Diaco, 278 AD2d 358, 359 [2000]; Ferrugiari v Ferrugiari, 226 AD2d 498 [1996]). The court was not required to accept the photographs proffered by the defendant as conclusive proof that the plaintiff removed the deрicted items from the marital residence (see Schneider v Schneider, 40 AD3d 956, 957 [2007]; Koeth v Koeth, 309 AD2d 786, 786-787 [2003]).
Additionally, given its credibility determinations, the court did not improvidently exercise its disсretion in failing to award the defendant a credit, for purposes of equitable distribution, for the sum he paid for repair and mаintenance of the parties’ boat during the pendency of the action.
“This court has recognized that the value of a pension should be discounted by the amount of income tax required to be paid by a party where the party seeking the disсount presented some evidence from which the court could have determined the dollar amount of the tax consеquences” (De La Torre v De La Torre, 183 AD2d 744, 745 [1992]; see
Domestic Relations Law § 236 [B] [5] [d] [10] ; Johnson v Johnson, 297 AD2d 279, 281 [2002]; Chase v Chase, 208 AD2d 883, 884 [1994]; Gluck v Gluck, 134 AD2d 237, 239 [1987]). Since the plaintiff did not present any evidence to establish the dollar amount of the tax consequences to the value of her pension, the court erred in considering this factor and in deducting $7,585 from the defendant‘s distributive award of the plaintiff‘s pension (see Chase v Chase, 208 AD2d 883, 884 [1994]; De La Torre v De La Torre, 183 AD2d 744, 745 [1992]; Gluck v Gluck, 134 AD2d 237, 239 [1987]; Farsace v Farsace, 97 AD2d 951, 952 [1983]; cf. Johnson v Johnson, 297 AD2d 279, 281 [2002]).
The Supreme Court did not err in rejecting the defendant‘s
The defendant‘s remaining contention is without merit.
Skelos, J.P., Belen, Hall and Lott, JJ., concur.