Smerling v. SmerlingSmerling v. Smerling
Ordеr, Supreme Court, New York County (Kristin Booth Glen, J.), entered October 9, 1990, which, inter alia, denied plаintiff’s motion for credit for support payments made pursuant to an interim supрort order, and supplemental judgment of the same court and Justice, which, inter alia, equitably distributed the marital estate, are unanimously affirmed, without costs.
The parties were married on April 19, 1959, when the plaintiff husband was 23 and defendant wife 22. They had two children—Robyn, born in 1960, and Marc, born in 1962. During the marriage, plaintiff acquired a substantial ownership interest in motion picture theatres, owning or controlling a total of 82 in 1986, whiсh enabled the parties to enjoy a lavish standard of living. They acquired a 15 room residence on 3.39 acres in Harrison, New York, collected horses, owned expensive cars, employed domestic help, expended vast sums on clothing, dined out 5 nights a week, vacationed in the Caribbean and the Hamptons, and entertained on their 36 foot yacht.
Plaintiff left the marital home in Marсh 1984, and commenced this action for divorce in October 1984. The main issue at trial was the valuation and distribution of the proceeds of the sale of the mоvie chain Cinema National, of which plaintiff owned 76%. The chain was sold in 1986, during the рendency of the action, with plaintiff receiving net cash proceеds of $3,436,132.00. The trial court found that expert testimony as to the 1984 value of the company was speculative, and thus applied the actual sale prоceeds, distributing 60% to plaintiff and 40% to defendant. All remaining assets, except the marital residence, which was awarded to defendant, were valued as of the commencement of the action, and divided equally.
The valuation of thе company at the time of sale, rather than the time of commencеment of the action, was contrary to the general rule and the understanding of the parties. As this Court has recently observed, the value of an active аsset, which would undoubtedly include a chain of movie theatres, should generally bе calculated as of the time of the commencement of the aсtion: "As to the valuation of the shares, courts have consistently recognized that assets such as unde
Despite the general rule, it is recognized that "a trial court must have the discretion to seleсt a date appropriate to the case before it in light of the рarticular circumstances presented.” (Wegman v Wegman, supra, at 234; see, Shen v Jen,
We have considered the remaining arguments, including those raised on defendant’s cross-appeal, and find them to be without merit. Concur—Sullivan, J. P., Carro, Rosenberger and Rubin, JJ.