Siegel v. Siegel

132 A.D.2d 247, 523 N.Y.S.2d 517, 1987 N.Y. App. Div. LEXIS 51554
CourtAppellate Division of the Supreme Court of the State of New York
DecidedDecember 14, 1987
StatusPublished
Cited by45 cases

This text of 132 A.D.2d 247 (Siegel v. Siegel) 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
Siegel v. Siegel, 132 A.D.2d 247, 523 N.Y.S.2d 517, 1987 N.Y. App. Div. LEXIS 51554 (N.Y. Ct. App. 1987).

Opinions

OPINION OF THE COURT

Weinstein, J. P.

The underlying matrimonial action was commenced in October 1981, was joined with two actions by creditors for necessaries furnished to the defendant wife, and did not proceed to trial until November 1984. Following a lengthy trial, a judgment dissolving the parties’ marriage and distributing their substantial property was signed on January 17, 1986. The instant appeal focuses solely upon the property distribution and requires us to review the trial court’s evaluation of several different marital assets.

The threshold issue in our evaluation procedure entails the selection of an appropriate valuation date for each asset in question. It bears noting, at this juncture, that evaluating each of the marital assets from a common point of reference does not necessarily yield the most equitable of results.

In Wegman v Wegman (123 AD2d 220, remittitur amended 123 AD2d 238), this court held that the date with reference to which various marital assets are to be evaluated for the purposes of equitable distribution in accordance with Domestic Relations Law § 236 (B) is to be chosen by the trial court in light of the particular circumstances presented (cf., Lord v Lord, 124 AD2d 930, 932 [where the Third Department held that marital property should be evaluated as of the commencement of the action, unless doing so would be "patently inequitable”]; Florescue, Domestic Relations Law, NYU, May 20, 1987, at 1, col 1). The Wegman court also recognized that a court may set different valuation dates for different assets (see, Wegman v Wegman, supra, at 236-237). The case now under review cogently illustrates the type of circumstances under which the use of two different valuation dates with respect to different assets may be warranted. We also have occasion, in connection with this appeal, to hold that a trial court may not, by entertaining a postjudgment motion, in effect, reevaluate a marital asset as of any date which is subsequent to the time of trial.

[250]*250We now proceed to address seriatim the major issues raised by the parties.

I

The marital assets whose proper valuation poses the most difficulty in this case are two closely held corporations, Harmony Carpet Corporation (hereinafter Harmony) and Visa Carpets, Inc. (hereinafter Visa). The plaintiff is the president of both of these corporations.

The plaintiff’s expert testified that, in his opinion, Harmony had a value of $375,000 as of March 12, 1981. This same expert testified that Visa had a value of approximately $41,000. The expert who testified on behalf of the defendant reached a substantially different conclusion, finding that Harmony and Visa, taken together, had, as of May 31, 1981, a value of between $2,623,000 and $2,856,000, exclusive of the value of Harmony’s lease and the value of a debt owed to that corporation by the plaintiff. This expert also opined that the total value of these two businesses, including the aforementioned items, would be approximately $3,000,000. We now face the task of resolving the gross disparity between the opinions of the parties’ respective experts.

At the outset, we agree with the trial court that the two business enterprises should be evaluated as of the date on which the action was commenced. The court assigned a value of $1,800,000 to Harmony and Visa as of September 1981. On appeal, the plaintiff argues that the court overvalued the two corporations, in part because Harmony, by far the more valuable of the two entities, declined in value since the date the action was commenced. The plaintiff notes, for example, that Harmony had $737,640 of outstanding notes payable as of May 31, 1984, which represents a significantly higher corporate debt than that which existed as of May 31, 1981, prior to the commencement of the action.

If we were able to attribute the decline in Harmony’s value to adverse economic forces, then it might well have been better to evaluate this business as of the date of the trial. However, the weight of the evidence in this case establishes clearly that Harmony was a business under the plaintiff’s complete control, so that whatever true shareholder equity might have existed in the corporation as of the time this action was commenced could have been easily directed from the corporation to the plaintiff personally. Stated succinctly, [251]*251the corporation’s increasing indebtedness might be more attributable to the plaintiff’s diversion of equity from the corporation to himself rather than to neutral economic forces. In Wegman v Wegman (123 AD2d 220, 234, remittitur amended 123 AD2d 238, supra), the court noted that the date of the commencement of the action should be used to evaluate an asset whose value "significantly decreased after commencement of the action due to wasteful dissipation or other fault of the owner spouse”. We do not mean to suggest that the plaintiff necessarily dissipated corporate assets or looted the corporations under his control for his own benefit. We merely hold that the possibility that such dissipation might have occurred is sufficient for the court to choose the date of the commencement of the action as the date for evaluating the two corporations.

Having chosen a date for valuation, there still remains the task of resolving the conflict between the testimony of the parties’ respective expert witnesses. It is our conclusion that neither expert’s opinion accurately reflects the true value of the subject corporations.

The figures advanced by the defendant wife’s expert include the sum of $1,787,000 which purportedly represents the value of Harmony’s "tangible net assets”. This expert was compelled to substantially modify his opinion in this regard on cross-examination. More importantly, this witness was apparently unaware that a large percentage of the rug inventory possessed by these corporations consisted of rugs held on consignment. Furthermore, this expert deliberately inflated the value of such inventory so as to supposedly correspond to the values assigned to certain carpeting in connection with an insurance claim. We are not persuaded, as a matter of fact, that this technique is reliable. Accordingly, we find the opinion of the defendant’s expert to be overly speculative, and therefore unworthy of belief.

The opinion advanced by the expert retained by the plaintiff husband is equally unpersuasive. A report of this expert, which was admitted into evidence, reveals that he employed a capitalization of earnings approach and applied a multiplier of 5.2 to a figure of $69,824 which represents the earnings of Harmony as "reported * * * in after tax terms”. Utilizing this formula, the value of Harmony was said to be $370,000, in rounded terms.

The principal flaw in the foregoing analysis is the use of a [252]*252posttax earnings figure as the starting point in a capitalization of earnings approach. The proper methodology is to multiply, by a number derived from a consideration of various factors, an amount which represents the subject corporation’s true pretax earnings (see, e.g., Bofford v Bofford, 117 AD2d 643, appeal dismissed 68 NY2d 808).

The credibility of this witness’s opinion is further undermined by the fact that the weight of the evidence establishes beyond any doubt that the true earnings of Harmony amount to a figure much higher than that which appears on the corporation’s financial statements. It is apparent from the record that Mr.

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Bluebook (online)
132 A.D.2d 247, 523 N.Y.S.2d 517, 1987 N.Y. App. Div. LEXIS 51554, Counsel Stack Legal Research, https://law.counselstack.com/opinion/siegel-v-siegel-nyappdiv-1987.