Bean v. Bean

53 A.D.3d 718, 860 N.Y.S.2d 683
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 3, 2008
StatusPublished
Cited by35 cases

This text of 53 A.D.3d 718 (Bean v. Bean) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bean v. Bean, 53 A.D.3d 718, 860 N.Y.S.2d 683 (N.Y. Ct. App. 2008).

Opinion

Stein, J.

Appeals (1) from an order of the Supreme Court (Teresi, J.), entered January 8, 2007 in Albany County, which, among other things, denied defendant’s motion to change the valuation date of a certain asset, and (2) from a judgment of said court, entered May 2, 2007 in Albany County, ordering, among other things, equitable distribution of the parties’ marital property, upon a decision of the court.

The parties were married in 1991. There is one child of the marriage (born in 1992).1 Plaintiff commenced this action for divorce in December 2004. Throughout the course of the litigation, defendant continually disobeyed court mandates and failed to appear on multiple occasions. In March 2006, defendant’s attorney at the time (he had several during the pendency of the action) moved, by order to show cause, to withdraw {see CPLR 321). The order to show cause contained a provision requiring defendant’s personal appearance on the return date. When defendant failed to appear on that date, Supreme Court (McNamara, J.) adjourned the matter to provide him with an additional opportunity to appear, instructing defendant’s attorney to notify him that, if he failed to appear, a default judgment would be entered, his answer and counterclaims would be stricken, and any issues of valuation would be as established by appropriate proof to be submitted by plaintiff. Defendant again failed to appear and his attorney made a record of the efforts made to apprise him of the consequences of such failure. As a result, the court granted counsel’s motion to withdraw, struck defendant’s answer and counterclaims and found defendant to be in default pursuant to 22 NYCRR 202.27.

On the eve of trial, defendant made an oral motion to change the valuation date of the parties’ corporation, The Bean Agency, from the date of commencement of the action to the date of trial and requested permission to present an expert as to valua[720]*720tion. Supreme Court (Teresi, J.) denied the motion in its entirety and clarified that, as a result of the prior order finding defendant to be in default, defendant would be permitted to cross-examine plaintiffs witnesses, but would not be allowed to present evidence himself. A trial was held on the issues of, among other things, equitable distribution, maintenance and child support. Subsequently, the court entered a decision and judgment of divorce, directed an equal distribution of the marital assets, and awarded nondurational maintenance in the amount of $25,000 per month and child support in the amount of $9,811 per month. Defendant now appeals from the judgment of divorce, and from the prior order of Supreme Court denying his motion to change the valuation date and for permission to present an expert at the inquest.

First, defendant contends that Supreme Court erred in valuating The Bean Agency2 as of the date of commencement of the action instead of the date of trial. We disagree. It is well settled that “[t]he trial court has discretion and flexibility in selecting the proper date for valuing marital property” (Sagarin v Sagarin, 251 AD2d 396, 396 [1998]; accord Dashnaw v Dashnaw, 11 AD3d 732, 734 [2004]) taking into account the relevant facts and circumstances (see Dashnaw v Dashnaw, 11 AD3d at 734). As a general matter, courts have tended to value “active” assets—such as a business—as of the date of commencement, while valuating “passive” assets—which may change in value suddenly due to market forces—as of the date of trial (see Fox v Fox, 309 AD2d 1056, 1058 [2003]).

Here, Supreme Court did not abuse its discretion in valuing The Bean Agency as of the date of commencement (see Fox v Fox, 309 AD2d at 1058; compare Butler v Butler, 256 AD2d 1041, 1043-1044 [1998], lv denied 93 NY2d 805 [1999]) and properly determined that fixing the valuation date as of the date of trial, especially at such a late stage in the proceedings, would be prejudicial to plaintiff, as her retained expert had already valued the business as of the date of commencement. We also reject defendant’s contention that the date of commencement valuation failed to account for the subsequent loss of a major contract. In determining the value of the business, plaintiffs expert took into account the agency’s weaknesses, including the risk of losing a major contract, and used a conservative growth rate of 4%, notwithstanding the fact that the agency had seen an exceedingly high growth rate in the previ[721]*721ous three-year period. We also note that, as a result of defendant’s unilateral abandonment of the business—consistent with his threats to deprive plaintiff of the value thereof—and of his failure to comply with discovery, a date of trial valuation would have been negligible and, therefore, inequitable to plaintiff.

Supreme Court also properly denied defendant’s request to present his own valuation expert with respect to The Bean Agency and other marital assets or evidence regarding the distribution of such assets. Notably, after Supreme Court found defendant to be in default and struck his answer and counterclaim, defendant moved to vacate the default. Supreme Court (McNamara, J.) denied the motion and no appeal was taken therefrom. Thus, this claim is not properly before us (see generally Matter of Barrow v Kirksey, 15 AD3d 801, 802 [2005], lv denied 5 NY3d 701 [2005]). However, were we to address the merits of defendant’s argument, we would conclude that the finding of default was amply supported by the evidence that defendant received actual notice of the requirement that he appear on the order to show cause—at least once, if not twice—and that the consequences of his failure to appear were communicated to him in the manner he had directed his attorneys to do so (see Bear, Stearns & Co., Inc. v Enviropower, LLC, 21 AD3d 855, 856 [2005], appeal dismissed 6 NY3d 750 [2005]; compare Warner v Houghton, 43 AD3d 376, 381 [2007], affd 10 NY3d 913 [2008]). Such finding was also warranted by defendant’s contumacious pattern of obfuscation and delay, including his history of failing to appear in court and refusing to comply with court mandates, such as support orders and disclosure requirements (see 22 NYCRR 202.27; Campos v New York City Health & Hosps. Corp., 307 AD2d 785, 785 [2003]). Thus, Supreme Court (Teresi, J.) acted within its sound discretion to limit defendant’s participation in the trial to the cross-examination of plaintiffs witnesses (see Otto v Otto, 150 AD2d 57, 69 [1989]). In fact, the record demonstrates that defendant actively and thoroughly cross-examined plaintiffs witnesses and introduced documentary evidence.

Turning to defendant’s assertions regarding Supreme Court’s adoption of plaintiff’s proposed findings of fact, it is well established that the trial court must hear sufficient evidence in order to intelligently make the necessary findings and must state the reasons therefore in accordance with Domestic Relations Law § 236 (B) (see Trim v Trim, 21 AD3d 1203, 1204 [2005]; Butler v Butler, 256 AD2d at 1042; Michalek v Michalek, 180 AJ)2d 890, 891 [1992]). However, “the statutory factors do not have to be specifically cited where it is evident that the rel[722]*722evant factors were taken into consideration by the court and the reasons for its decision are articulated” (Butler v Butler, 256 AD2d at 1042). Here, Supreme Court heard four days of testimony and received numerous documents into evidence.

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Bluebook (online)
53 A.D.3d 718, 860 N.Y.S.2d 683, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bean-v-bean-nyappdiv-2008.