Plawner v. Plawner

Appellate Division of the Supreme Court of New York

Plawner v. Plawner

275 A.D.2d 256, 712 N.Y.S.2d 38, 2000 N.Y. App. Div. LEXIS 8867

CourtAppellate Division of the Supreme Court of the State of New York

DecidedAugust 24, 2000

StatusPublished

Cited by1 cases

This text of 275 A.D.2d 256 (Plawner v. Plawner) 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

Plawner v. Plawner, 275 A.D.2d 256, 712 N.Y.S.2d 38, 2000 N.Y. App. Div. LEXIS 8867 (N.Y. Ct. App. 2000).

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Opinion

—Judgment, Supreme Court, New York [257]*257County (Joan Lobis, J.), entered September 18, 1998, which, to the extent appealed from, inter alia, determined plaintiffs entitlement to a distributive share of defendant’s assets, unanimously modified, on the law and the facts, to the extent of striking that part of paragraph (7) which limits the award of maintenance to plaintiff “for a period of three (3) . years”, and striking paragraph (5) (b) of the judgment awarding plaintiff $9,346, purportedly representing 50% of the down payment on the residential condominium in Stratton, Vermont and substituting therefor a provision awarding plaintiff $12,346 for the same, and, as so modified, affirmed, without costs.

Given the major disparity between the incomes of the parties, the parties’ stipulation that plaintiffs dental practice was worthless and the trial court’s finding that her dental license has no value as a marital asset, at least in part, due to her degenerative osteoarthritis and other medical ailments, there should have been no durational limitation with respect to plaintiffs maintenance award. While plaintiffs medical expert could not predict with specificity how long it would take for plaintiffs condition to further deteriorate, such deterioration was certain and there is nothing in the record to indicate that plaintiffs condition will improve or that her earning capacity will be any better next year, when the maintenance award is due to expire, than now (cf., Zelnik v Zelnik, 169 AD2d 317, 333).

Examination of the closing statement from defendant’s purchase of a Vermont condominium just days prior to the commencement of this divorce action also discloses that the trial court miscalculated the marital assets used by defendant in making that acquisition. As a result, plaintiff is entitled to a full 50% of the down payment made by defendant in connection with the purchase of the condominium.

As for the balance of plaintiffs arguments, the trial court properly deducted the amounts expended by defendant from his separate, post-commencement earnings for the upkeep of the marital property in issue (see, Walters v Walters, 252 AD2d 775; Lekutanaj v Lekutanaj, 234 AD2d 429), and properly exercised its discretion in deducting a portion of the intangible assets of defendant’s practice, computed as capitalized excess earnings, from the residual value of the practice (see, Grunfeld v Grunfeld, 255 AD2d 12, mod on other grounds 94 NY2d 696; Wadsworth v Wadsworth, 219 AD2d 410).

We have considered plaintiffs remaining arguments and find them unavailing. Concur — Sullivan, P. J., Nardelli, Tom, Lerner and Andrias, JJ.

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—Judgment, Supreme Court, New York [257]*257County (Joan Lobis, J.), entered September 18, 1998, which, to the extent appealed from, inter alia, determined plaintiffs entitlement to a distributive share of defendant’s assets, unanimously modified, on the law and the facts, to the extent of striking that part of paragraph (7) which limits the award of maintenance to plaintiff “for a period of three (3) . years”, and striking paragraph (5) (b) of the judgment awarding plaintiff $9,346, purportedly representing 50% of the down payment on the residential condominium in Stratton, Vermont and substituting therefor a provision awarding plaintiff $12,346 for the same, and, as so modified, affirmed, without costs.

Given the major disparity between the incomes of the parties, the parties’ stipulation that plaintiffs dental practice was worthless and the trial court’s finding that her dental license has no value as a marital asset, at least in part, due to her degenerative osteoarthritis and other medical ailments, there should have been no durational limitation with respect to plaintiffs maintenance award. While plaintiffs medical expert could not predict with specificity how long it would take for plaintiffs condition to further deteriorate, such deterioration was certain and there is nothing in the record to indicate that plaintiffs condition will improve or that her earning capacity will be any better next year, when the maintenance award is due to expire, than now (cf., Zelnik v Zelnik, 169 AD2d 317, 333).

Examination of the closing statement from defendant’s purchase of a Vermont condominium just days prior to the commencement of this divorce action also discloses that the trial court miscalculated the marital assets used by defendant in making that acquisition. As a result, plaintiff is entitled to a full 50% of the down payment made by defendant in connection with the purchase of the condominium.

As for the balance of plaintiffs arguments, the trial court properly deducted the amounts expended by defendant from his separate, post-commencement earnings for the upkeep of the marital property in issue (see, Walters v Walters, 252 AD2d 775; Lekutanaj v Lekutanaj, 234 AD2d 429), and properly exercised its discretion in deducting a portion of the intangible assets of defendant’s practice, computed as capitalized excess earnings, from the residual value of the practice (see, Grunfeld v Grunfeld, 255 AD2d 12, mod on other grounds 94 NY2d 696; Wadsworth v Wadsworth, 219 AD2d 410).

We have considered plaintiffs remaining arguments and find them unavailing. Concur — Sullivan, P. J., Nardelli, Tom, Lerner and Andrias, JJ.

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Bluebook (online)

275 A.D.2d 256, 712 N.Y.S.2d 38, 2000 N.Y. App. Div. LEXIS 8867, Counsel Stack Legal Research, https://law.counselstack.com/opinion/plawner-v-plawner-nyappdiv-2000.

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