Cervoni v. Cervoni , 34 N.Y.S.3d 792 ( 2016 )

State of New York
Supreme Court, Appellate Division
Third Judicial Department
Decided and Entered: July 14, 2016 522163
________________________________
MARIA CERVONI,
Respondent,
v MEMORANDUM AND ORDER
CARLO CERVONI,
Appellant.
________________________________
Calendar Date: May 23, 2016
Before: Garry, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.
__________
Jackson Bergman, LLP, Binghamton (Benjamin K. Bergman of
counsel), for appellant.
Richard J. Grace, Binghamton, for respondent.
__________
Devine, J.
Appeal from a judgment of the Supreme Court (Connerton,
J.), entered March 2, 2015 in Broome County, ordering, among
other things, equitable distribution of the parties' marital
property, upon a decision of the court.
Plaintiff (hereinafter the wife) and defendant (hereinafter
the husband) were married in 1975 and have no unemancipated
children. The wife commenced this divorce action in 2013,
asserting an irretrievable breakdown in the marriage
(see Domestic Relations Law § 170 [7]). Following a nonjury
trial, Supreme Court issued a November 2014 decision in which it
found that the grounds for divorce had been established and
outlined the details of its equitable distribution and
maintenance awards. Supreme Court issued a judgment of divorce
that incorporated the terms of that decision, and the husband
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appeals.
The husband first argues that Supreme Court erred in
ordering him to pay the wife $1,000 a month in maintenance for 10
years. The amount and duration of a maintenance award are a
matter within the sound discretion of Supreme Court, and the
award will not be disturbed so long as "the statutory factors and
the parties' predivorce standard of living" were properly
considered (Murray v Murray, 101 AD3d 1320, 1322 [2012], lv
dismissed 20 NY3d 1085 [2013]; accord Robinson v Robinson, 133
AD3d 1185, 1186 [2015]). Supreme Court made a detailed analysis
in which it considered the then-applicable statutory factors and,
contrary to the husband's contention, it was not required to
"apply each and every factor set forth in the statute" in doing
so (Robinson v Robinson, 133 AD3d at 1186; see Domestic Relations
Law § 236 [B] [former (6)]; Curley v Curley, 125 AD3d 1227, 1228
[2015]).
As to whether the award constituted an abuse of discretion,
the husband is self-employed by a construction company that he
founded in 1985, and he acknowledged that he paid for essentially
all of his personal obligations using corporate funds. Supreme
Court aptly observed, as a result, that the husband had far
greater financial resources than his lack of personal banking
accounts and meager reported income would suggest. In contrast,
the wife earned a bit over $22,000 in 2013, moved in with her
adult son upon leaving the marital residence and was unlikely to
significantly improve her earning capacity. Supreme Court relied
upon the income disparity between the parties in fashioning its
award of maintenance and, particularly given the length of the
marriage and the financial sacrifices made by the wife in order
to act as caregiver for the parties' children and provide the
family with health insurance, we perceive no abuse of discretion
in the amount or duration of maintenance awarded (see Robinson v
Robinson, 133 AD3d at 1186-1187; Curley v Curley, 125 AD3d at
1228-1229; Murray v Murray, 101 AD3d at 1322; O'Connor v
O'Connor, 91 AD3d 1107, 1108-1109 [2012]).
The husband also challenges "aspects of Supreme Court's
equitable distribution award, which will not be disturbed absent
an abuse of discretion or failure to consider the requisite
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statutory factors" (Robinson v Robinson, 133 AD3d at 1187
[internal quotation marks and citations omitted]; see Mahoney-
Buntzman v Buntzman, 12 NY3d 415, 420 [2009]; Mula v Mula, 131
AD3d 1296, 1298 [2015]). Supreme Court valued the marital assets
at $816,619.65 and, after considering the pertinent statutory
factors (see Domestic Relations Law § 236 [B] [5] [d]),
determined that those assets should be divided equally. The
largest marital asset by far was the company, which owned a
variety of real property and equipment, and Supreme Court found
that it had a net value of $625,864.47. Supreme Court awarded
the company to the husband and, to account for the resulting
disparity in asset distribution, ordered him to pay a
distributive award of $392,604.64 to the wife over the course of
five years.
The husband does not seriously dispute, and we agree with
Supreme Court, that an equal division of marital property was
called for. He does argue that the valuation of certain company
equipment and the method of division was improper. In that
regard, most, but not all, of the company's equipment was valued
by an expert appraiser, and Supreme Court valued some other
equipment by halving its cost basis as listed on a 2013 equipment
depreciation schedule.1 There is nothing improper in considering
depreciation in valuing the assets of a business and, given that
"valuation is an exercise properly within the fact-finding power
of the trial courts," we cannot say that Supreme Court erred in
valuing those items as it did (Burns v Burns, 84 NY2d 369, 375
[1994]; accord Gaglio v Molnar-Gaglio, 300 AD2d 934, 937 [2002];
see Brett R. Turner, 2 Equitable Distribution of Property § 7.21
[3d ed 2015]).
1
The husband points out the lack of other proof to
establish the value or the continued ownership of this additional
equipment, but it was he who placed the 2013 depreciation
schedule into evidence at trial. The schedule was admitted
during the testimony of an accountant, who gave no indication
that the equipment was no longer in the possession of the
company. The husband notably fails to assert on this appeal that
the equipment is actually valueless or no longer in the company's
possession.
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The husband also asserts that certain pieces of equipment
were double-counted in calculating the equitable distribution
award and, while we are not uniformly persuaded by those
assertions, we do agree that an excavator for which the record
contains an invoice and the appraiser's assessment of its value
was counted twice. Supreme Court likewise seems to have double-
counted a vibratory roller listed on the depreciation schedule
that the appraiser's testimony reveals was the same item he
appraised as a "compactor." Since Supreme Court found the
appraised value of those items to be credible, we modify the
judgment to remove the additional valuations, amounting to
$69,360, which reduces the total value of the marital estate to
$747,259.65. The effect of that reduction is to reduce the
distributive award to be paid by the husband to $357,624.65.
The husband's remaining contentions have been examined and
found to be lacking in merit.
Garry, J.P., Egan Jr., Lynch and Mulvey, JJ., concur.
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ORDERED that the judgment is modified, on the law and the
facts, without costs, by reversing so much thereof as double-
counted certain marital property as set forth in this Court's
decision; reduce the net value of the marital estate to
$747,259.65 and plaintiff's distributive award to $357,624.65;
and, as so modified, affirmed.
ENTER:
Robert D. Mayberger
Clerk of the Court