Turco v. Turco

117 A.D.3d 719, 985 N.Y.S.2d 261
Appellate Division of the Supreme Court of the State of New York·Decided May 7, 2014·Published·Cited by 27 cases

Opinion

In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Nassau County (Diamond, J.), entered March 30, 2011, which, upon a decision of the same court dated November 10, 2010, and an amended decision of the same court dated November 18, 2010, made after a nonjury trial, inter alia, (1) upon consent, awarded the plaintiff a divorce on the ground of constructive abandonment, (2) failed to award the plaintiff a marital share of the defendant’s interest in his commercial bakery business, (3) awarded the defendant a credit against the proceeds of the sales of three marital properties for 100% of the amount he paid to reduce the mortgage principal on these properties during the pendency of the action, (4) awarded the plaintiff maintenance in the sum of only $48,000 per year for a period of seven years, and (5) awarded the plaintiff child support in the sum of only $548.38 per week, and the defendant cross-appeals, as limited by his brief, from stated portions of the judgment which, inter alia, failed to direct that the plaintiff is responsible for the carrying charges on the marital residence during the post judgment period of exclusive occupancy.

Ordered that the appeal from so much of the judgment as, upon consent, awarded the plaintiff a divorce on the ground of constructive abandonment is dismissed; and it is further,

Ordered that the judgment is modified, on the law, on the facts, and in the exercise of discretion, (1) by adding a provision [720]*720thereto awarding the plaintiff 14.5% of the defendant’s interest in his commercial bakery business; (2) by reducing the award to the defendant of a credit against the proceeds of the sales of three marital properties from 100% to 50% of the amount he paid to reduce the mortgage principal on these properties during the pendency of the action, (3) by adding a provision thereto directing that the plaintiff is responsible for the carrying charges on the marital residence during the post judgment period of exclusive occupancy, (4) by adding a provision thereto awarding the plaintiff a credit against the proceeds of the sale of the marital residence for 100% of the amount she pays to reduce the mortgage principal from the date of the judgment until the sale of the marital residence, (5) by deleting the provision thereof awarding the plaintiff maintenance in the sum of $48,000 per year for a period of seven years, and substituting therefor a provision awarding the plaintiff maintenance in the sum of $6,000 per month for a period of seven years, and (6) by deleting the provision thereof awarding the plaintiff child support in the sum of $548.38 per week, and substituting therefor a provision awarding the plaintiff child support in the sum of $914.55 per week, subject to reduction to the sum of $621.89 per week when the parties’ eldest child reaches the age of 21; as so modified, the judgment is affirmed insofar as reviewed on the appeal and insofar as cross-appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Nassau County, for the entry of an amended judgment.

The plaintiff’s appeal from so much of the judgment as awarded her a divorce on the ground of constructive abandonment must be dismissed because that portion of the judgment was entered upon her consent, and, thus, she is not aggrieved thereby (see CPLR 5511; Tongue v Tongue, 61 NY2d 809, 810 [1984]; Dudla v Dudla, 50 AD3d 1255, 1256-1257 [2008]; Saleh v Saleh, 40 AD3d 617, 617 [2007]; Shifer v Shifer, 27 AD3d 549, 549 [2006]).

“The determination of a motion for leave to voluntarily discontinue an action pursuant to CPLR 3217 (b) rests within the sound discretion of the court” (Wells Fargo Bank, N.A. v Chaplin, 107 AD3d 881, 883 [2013]; see Tucker v Tucker, 55 NY2d 378, 383 [1982]). “In the absence of special circumstances, such as prejudice to a substantial right of the defendant, or other improper consequences, a motion for a voluntary discontinuance should be granted” (Wells Fargo Bank, N.A. v Chaplin, 107 AD3d at 883 [internal quotation marks omitted]; see Tucker v Tucker, 55 NY2d at 383-384). Here, the Supreme Court providently exercised its discretion in denying the plaintiffs ap[721]*721plication, in effect, to voluntarily discontinue the action, made on the first day of trial, since the record supports a finding that she was merely attempting to avoid an adverse order of the court (see Kaplan v Village of Ossining, 35 AD3d 816, 817 [2006]; Casey v Custom Crushing & Materials, 309 AD2d 726, 727 [2003]), and there was a showing that the defendant would be prejudiced by such discontinuance.

“The granting of an adjournment for any purpose is a matter resting within the sound discretion of the trial court” (Matter of Anthony M., 63 NY2d 270, 283 [1984]; see Delijani v Delijani, 100 AD3d 823, 824 [2012]; Matter of Branch v Cole-Lacy, 84 AD3d 953, 954 [2011]). “In making such a determination, the court must undertake a balanced consideration of all relevant factors” (Matter of Sicurella v Embro, 31 AD3d 651 [2006]; see Matter of Tripp, 101 AD3d 1137, 1138 [2012]). Given the numerous prior adjournments and the extensive delays in this action, as well as the plaintiff’s history of discharging counsel, the Supreme Court providently exercised its discretion in denying her request during trial for an adjournment to obtain new counsel (see Matter of John L.P. [Boykin—Taylor], 72 AD3d 828 [2010]; Matter of Sicurella v Embro, 31 AD3d at 651; Faulkner v Faulkner, 19 AD3d 1092 [2005]; Natoli v Natoli, 234 AD2d 591 [1996]).

In light of the Supreme Court’s finding that the defendant’s interest in his commercial bakery business had increased from 50% at the time of the parties’ marriage, to 79% by the time of trial, this 29% increase in interest, purchased by the defendant with marital funds, constituted marital property and, therefore, the plaintiff is entitled to one-half thereof, or a 14.5% interest (see Domestic Relations Law § 236 [B] [1] [c]; [5] [c]; Beroza v Hendler, 71 AD3d 615, 617 [2010]; Wegman v Wegman, 123 AD2d 220, 230 [1986]).

As to that portion of the defendant’s interest in his business that was acquired before the marriage and is separate property (see Domestic Relations Law § 236 [B] [1] [d] [1]), in order for appreciation in the value of this asset to be deemed marital property subject to equitable distribution, the plaintiff was required to “demonstrate the manner in which [her] contributions resulted in the increase in value and the amount of the increase which was attributable to [her] efforts” (Embury v Embury, 49 AD3d 802, 804 [2008] [internal quotation marks omitted]; see Price v Price, 69 NY2d 8, 18 [1986]). The plaintiff, however, did not sustain her burden of proof (see Morales v Inzerra, 98 AD3d 484, 484 [2012]; Embury v Embury, 49 AD3d at 804; Tzanopoulos v Tzanopoulos, 18 AD3d 464, 465 [2005]; Burgio v Burgio, 278 AD2d 767, 770 [2000]).

[722]*722“The trial court is vested with broad discretion in making an equitable distribution of marital property, and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed” (Saleh v Saleh, 40 AD3d 617, 617-618 [2007] [internal quotation marks and citation omitted]; see Aloi v Simoni, 82 AD3d 683, 685 [2011]).

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Turco v. Turco, 117 A.D.3d 719, 985 N.Y.S.2d 261 (N.Y. Ct. App. 2014).

117 A.D.3d 719 (Turco v. Turco) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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