Ward v. Ward

dent’s appeal ensued. On this appeal, respondent concedes the court’s equal division of the marital property in the form of bank accounts, and an individual retirement account was appropriate, but asserts the court erred in valuing the marital property as of the commencement date of the second divorce action rather than the first divorce action. We find the argument to be without merit. Respondent husband concedes he neither opposed discontinuance of the prior action nor the granting of a decree of divorce in the second action. Under these circumstances, he cannot be heard to complain that equitable distribution was available to his wife (cf. Valladares v Valladares, 55 NY2d 388 ; Tucker v Tucker, 55 NY2d 378 ; Zuckerman v Zuckerman, 56 NY2d 636 ; Pollack v Pollack, 56 NY2d 968 ; Battaglia v Battaglia, 90 AD2d 930 ). We are thus concerned, not with the propriety of the utilization of equitable distribution by the Family Court, rather, solely with the propriety of the distribution made by that court. Respondent’s argument that the court should have used the date of the commencement of the initial divorce action for purposes of valuing the marital residence is without merit. The first action was discontinued upon an order to which respondent had no opposition and it thus evaporated as if it never existed. The court properly used the date upon which the second action was commenced as the valuation date. Respondent further contends that the trial court erred in awarding title and exclusive possession of the marital residence to petitioner, asserting that he is entitled to a 50% interest in the residence. We disagree. Respondent mistakenly construes part B of section 236 as requiring “equal”, and not equitable distribution of the marital assets. Marital property is to be distributed on the basis of the factors enumerated in the equitable distribution statute, not on a simple 50-50 basis (Domestic Relations Law, § 236, part B, subd 5, pars c, d; see Matter of Bentley v Knight, 92 AD2d 638 , 639). In essence, equitable distribution presents “matters of fact to be resolved in the first instance by the trial court in the sound exercise of its discretion after considering all the relevant facts and circumstances” (Forcucci v Forcucci, 83 AD2d 169 , 172). In view of the court’s award of the entire automobile appraisal business to respondent, we find no abuse of discretion in the court’s award of the marital abode to petitioner, the custodial parent (Domestic Relations Law, § 236, part B, subd 5, pars e, f). A comparison of the relative values of these two major assets demonstrates the equity of this offset. As of January 14, 1982, the marital residence (which was purchased in 1954 for $11,000) had an appraised value of $56,700, free and clear of any incumbrances. The business real estate, which was purchased with marital funds, was appraised at $46,000 subject to a mortgage indebtedness of $23,786.31. In addition, the business showed gross earnings in 1981 of $91,460 from which respondent drew a salary of over $16,000 and received a substantial tax benefit in the form of deductions amounting to $74,925. While evidence was not presented to establish the net worth of respondent’s business, a minimal approximation would be an amount equal to the earnings of a single year, i.e., $16,000 (see Nehorayoff v Nehorayoff, 108 Mise 2d 311, 319-321). Petitioner made substantial noneconomic contributions to both the marriage and the business including working for respondent between 1970-1972, without salary, as a secretary and bookkeeper. Clearly, petitioner had a spousal claim to an equitable share of respondent’s business. However, considering the difficulty of evaluating petitioner’s interest as well as the feasibility of continuing a financial association between the parties, an award to petitioner of the marital residence in lieu of her rights in the business was appropriate (Domestic Relations Law, § 236, part B, subd 5, pars e, f; see 2 Foster and Freed, Law and the Family, § 33:8-B [1983 cum supp] pp 870-876). The entire history of this marriage and the present status and financial condition of the parties confirm

that the offset was equitable. Respondent’s remaining contentions must also be rejected. The record confirms that petitioner is not presently able to support herself despite viable efforts to do so. Her bi-weekly net salary as a records clerk is $166, while weekly expenses total $208 exclusive of maintenance costs on the residence. Having clearly considered all factors set forth in section 236 (part B, subd 6, par a), the court did not err in awarding petitioner maintenance for an indefinite period of time {Reed v Reed, 93 AD2d 105 ). Moreover, in view of petitioner’s modest assets and respondent’s ability to comply, we find no abuse of the court’s discretion in awarding petitioner counsel fees (see Domestic Relations Law, § 237, subd [b]; Walsh v Walsh, 92 AD2d 345 ). Order affirmed, with costs. Sweeney, J. P¡, Main, Casey, Yesawich, Jr., and Weiss, JJ., concur.