                          State of New York
                   Supreme Court, Appellate Division
                       Third Judicial Department
Decided and Entered: January 12, 2017                   523026
________________________________

JANELLE R. PFISTER,
                      Respondent,
     v                                      MEMORANDUM AND ORDER

ROBERT D. PFISTER JR.,
                    Appellant.
________________________________


Calendar Date:   November 16, 2016

Before:   Egan Jr., J.P., Lynch, Rose, Clark and Aarons, JJ.

                             __________


      Law Office of Stephen W. Rossi, Saratoga Springs (Stephen
W. Rossi of counsel), for appellant.

      Frank M. Putorti Jr., PC, Schenectady (Andrew J. Healey of
counsel), for respondent.

                             __________


Lynch, J.

      Appeal from a judgment of the Supreme Court (Powers, J.),
entered June 18, 2015 in Albany 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 1998 and have three children (born
in 2000, 2003 and 2010). In 2008, the wife commenced and later
discontinued an action for divorce before commencing this action
in November 2011. The parties stipulated to the grounds for
divorce and to the terms of custody and parenting time. Supreme
Court issued an interim order directing, among other things, that
the husband pay the carrying charges on the marital residence but
he did not comply. Also during the pendency of this action, each
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party sought and was granted a separate discharge of various
debts pursuant to chapter 7 of the Bankruptcy Code and a
foreclosure action was commenced with respect to the marital
residence. During the ensuing nonjury trial, the parties agreed
that Supreme Court could decide the remaining issues pursuant to
the parties' submissions. Supreme Court thereafter granted a
judgment of divorce, distributed the marital property, and
directed the husband to pay the wife spousal support in the
amount of $200 each week for three years, child support in the
amount of $340 each week and counsel fees in the amount of
$7,500. The husband now appeals.

      With respect to the support awards, the husband argues that
Supreme Court should not have imputed additional income to him
and should have imputed more income to the wife. A trial court
has broad discretion to impute income when determining the amount
of child support and maintenance and is not bound by the parties'
representations of their finances (see Matter of McKenna v
McKenna, 137 AD3d 1464, 1465-1466 [2016]; Ceravolo v DeSantis,
125 AD3d 113, 119 [2015]; Harrington v Harrington, 93 AD3d 1092,
1093 [2012]). The husband, who owned a property maintenance
business, claimed that he earned approximately $63,000 in 2010
and approximately $43,000 in 2013. The wife, who has two
Master's degrees and is a certified school counselor, worked part
time and earned approximately $18,000 in 2010. In 2013, the wife
disclosed income in the amount of $16,000, but the evidence
established that she also worked a second part-time job, earning
approximately $2,125 per month. Supreme Court imputed income in
the amount of $44,447.16 per year to the wife and $85,000 per
year to the husband.

      We find ample support for Supreme Court's determination to
impute income to the parties. Income may be imputed where a
party does not report all of his or her income (see Matter of
McKenna v McKenna, 137 AD3d at 1466), where personal expenses are
paid through a business account (see Harrington v Harrington, 93
AD3d at 1093; McAuliffe v McAuliffe, 70 AD3d 1129, 1131 [2010])
and where a party's earning capacity is enhanced by his or her
employment experience and education (see Armstrong v Armstrong,
72 AD3d 1409, 1413 [2010]). Here, Supreme Court noted that the
Bankruptcy Court accepted the husband's annual income to be
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$39,747.84 per year. It also cited evidence that the husband
earned more than $120,000 per year until 2009, when he began to
change the way he kept his financial records, and that he
historically paid for the family's expenses through the business
accounts. Further, the court astutely observed that the
husband's income similarly decreased during the prior action for
a divorce and that the business's gross profits were "extremely
disproportionate to [the husband's] net income." As for the
wife, the court emphasized her advanced degrees and rejected her
argument that she should not be required to work full time and
instead fixed her income pursuant to her actual earnings derived
from the two part-time jobs in accordance with the findings of
the Bankruptcy Court. Based on the record, we find sound and
substantial support for the court's determination of the parties'
incomes (see Bean v Bean, 53 AD3d 718, 722 [2008]).

      The husband also argues that the wife was not entitled to
an award of maintenance because she had become self-sufficient
during the pendency of the action. "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" (Cervoni v Cervoni, 141 AD3d 918, 919
[2016] [internal quotation marks and citation omitted]). The
court need not articulate every factor it considers, but it "must
provide a reasoned analysis of the factors it ultimately relies
upon in awarding maintenance" (Robinson v Robinson, 133 AD3d
1185, 1186 [2015] [internal quotation marks and citation
omitted]). Here, it was not disputed that a large share of the
wife's income was earned from a temporary job with a fixed term.
Although Supreme Court was not convinced that the wife should
continue to work part time, her earning capacity – at least in
the short term – was reduced as a result of the parties' decision
that she work part time once their oldest child was born.

      Our review of the record reveals that Supreme Court
considered statutory factors such as the length of the marriage,
and the parties' ages, health and their preseparation standard of
living (see Domestic Relations Law § 236 [B] [former (6)]; Funaro
v Funaro, 141 AD3d 893, 898 [2016]). The court also acknowledged
the wife's contributions to the husband's business and that the
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parties' standard of living was maintained through the
accumulation of debt – which the husband discharged in the
bankruptcy proceeding. Mindful that "the purpose of maintenance
is to provide temporary support while the recipient develops the
skills and experience necessary to become self-sufficient"
(Vantine v Vantine, 125 AD3d 1259, 1261 [2015] [internal
quotation marks, brackets and citation omitted]), we discern no
abuse of discretion in Supreme Court's award of spousal
maintenance to the wife (see Robinson v Robinson, 133 AD3d at
1186-1187).

      The husband also challenges Supreme Court's determination
to award spousal and child support to the wife retroactive to the
date of commencement of the action and argues that he was
entitled to a credit for certain payments made during the
pendency of the action. We disagree. Generally, both child and
spousal support awards are retroactive to the date an action for
divorce is commenced (see Domestic Relations Law § 236 [B] [6]
[a]; [7] [a]; Esposito-Shea v Shea, 94 AD3d 1215, 1218 [2012];
Harrington v Harrington, 300 AD2d 861, 863-864 [2002]), and the
payor may be entitled to a credit for support payments made
during the pendency of the action (see McAuliffe v McAuliffe, 70
AD3d at 1135). Supreme Court properly credited the husband for
the monthly payments that he indisputably made for the car that
the wife drove. In contrast, the husband offered neither
evidence that he paid the mandated carrying charges on the
marital residence nor evidence of any other voluntary payments
during the pendency of the action. Absent such evidence, Supreme
Court did not have a basis to award the husband any further
credit against the retroactive award (see Baraby v Baraby, 250
AD2d 201, 205 [1998]).

      Turning to equitable distribution, Supreme Court determined
that the boat, purchased by the husband in 1996 for approximately
$34,000, was transmuted from separate property into marital
property. The remaining marital property included the marital
residence, the parties' retirement accounts, the husband's
business, the vehicles that each party drove and the wife's
jewelry. The court awarded the wife the marital residence, the
car she drove, her jewelry, an amount equaling one half of the
insurance proceeds used to purchase a 1996 truck acquired by the
                              -5-                523026

husband, one quarter of the value of the husband's business and
one half of the value of the boat. Supreme Court declined to
award the husband a credit for marital funds paid towards the
wife's premarital student loans and awarded each party the value
of their respective retirement accounts. In sum, the
distributive award, including the marital residence, totaled
$89,308.58 to the wife and $47,050 to the husband. The husband
contends that Supreme Court erred because it overvalued the
business and abused its discretion with regard to the
distribution of the martial residence, the wife's retirement
account, the two cars and the jewelry. The husband also contends
that Supreme Court should have credited him for marital funds
paid towards the loan obtained for a Master's degree that the
wife earned prior to the marriage – particularly because the
court declined to award him an origination credit for the boat.

      "A trial court's determination of equitable distribution is
discretionary, based on the unique circumstances of each case,
and such determinations will not be overturned on review unless
they fail to properly account for the guiding statutory factors
enumerated in Domestic Relations Law § 236 (B) (5) (d)" (Keil v
Keil, 85 AD3d 1233, 1234 [2011] [citations omitted]). Whether
property is marital and thus subject to equitable distribution is
a question of law (see Fields v Fields, 15 NY3d 158, 161 [2010]),
and the court is not obligated to distribute all marital property
on an equal basis (see Musacchio v Musacchio, 107 AD3d 1326, 1330
[2013]). As Supreme Court recognized, since the boat was
purchased prior to the marriage, it was the husband's separate
property (see Domestic Relations Law § 236 [B] [1] [d] [1];
Ceravolo v DeSantis, 125 AD3d at 115). While we do not find
record evidence to support Supreme Court's determination that the
boat was transmuted into marital property, we do find that the
wife was entitled to recoup her equitable share of the marital
funds utilized to pay off the corresponding boat loan (see
Mahoney-Buntzman v Buntzman, 12 NY3d 415, 421 [2009]; Ceravolo v
DeSantis, 125 AD3d at 119). The parties agreed that the boat had
a value of $9,000, but there was limited evidence with regard to
the specific amount of separate funds used to pay for the boat
prior to the marriage. That said, we discern no abuse of
discretion in the court's determination to split the depreciated
value of the boat between the parties. Similarly, and in the
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absence of any evidence that the wife's Master's degree conferred
an economic benefit, we reject the husband's argument that he was
entitled to a credit for marital funds paid toward the wife's
student loans (see Mahoney-Buntzman v Buntzman, 12 NY3d at 422).

      Turning to the husband's business, "the valuation of a
business for equitable distribution purposes is an exercise
properly within Supreme Court's fact-finding power to be guided
by expert testimony" (Nissen v Nissen, 17 AD3d 819, 821 [2005]
[internal quotation marks, brackets and citation omitted]; accord
Keil v Keil, 85 AD3d at 1237). Here, neither party produced any
expert evidence with regard to the value of the business, and
both consented to the court deciding the issue based on their
submissions. These submissions included uncontradicted evidence
that the husband and his former partner agreed in 2012 that the
business was worth $55,200 for purposes of a buyout. While
generally a business asset is valued as of the date of
commencement of an action, Supreme Court has some discretion in
this regard where such valuation may be inequitable (see Fehring
v Fehring, 58 AD3d 1061, 1063 [2009]). Under the circumstances,
we find no error in Supreme Court's determination to value the
business utilizing the buyout amount (see Cervoni v Cervoni, 141
AD3d at 920; Burtchaell v Burtchaell, 42 AD3d 783, 787 [2007]).
Further, we reject the husband's argument that Supreme Court
should not have awarded the wife one half of the insurance
proceeds used to purchase his 1996 truck because such proceeds
were a business asset. The husband offered no evidence of the
value of the truck, which he claimed to be a marital asset
subject to equitable distribution in his statement of proposed
disposition. Under the circumstances, and without any other
evidence with regard to the value of the 1996 truck, the husband
cannot now claim otherwise (see Robinson v Robinson, 133 AD3d at
1190).

      The husband also challenges Supreme Court's determination
to award the wife 100% of the marital residence. The evidence
established that the residence was purchased during the marriage
for $165,000, was worth $238,000 at the time of the action and
was encumbered by two mortgages, yielding net equity in the
amount of $42,376.07. After noting that each party would
ordinarily be entitled to a distributive award in the amount of
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$21,188.03, the court also considered such "extraordinary"
circumstances as the husband's decision to request and obtain a
discharge of the debt encumbering the marital residence in
Bankruptcy Court, his failure to appear in the pending
foreclosure action and his failure to comply with the court's
directive to pay the carrying charges on the residence during the
pendency of the action. By comparison, Supreme Court noted the
wife's decision to reaffirm the residential debt and her
appearance in the foreclosure action with the goal of salvaging
the home. In his statement of proposed disposition, the husband
conceded that the net equity in the marital residence was further
reduced because the parties owed more than $17,000 in taxes and
agreed to allow the wife to keep any equity so long as he was not
obligated to assume any of the debt. Given this concession, and
because it is uncertain that the wife will benefit from the net
equity in the marital residence, we discern no abuse of
discretion in the court's determination to award the wife title
to the residence (see Cornish v Eraca-Cornish, 107 AD3d 1322,
1323 [2013]).

      We reject the husband's argument that Supreme Court should
have awarded him an equitable share in the wife's retirement
account, the car she drove and the jewelry. At the time that the
action was commenced, each party had a retirement account worth
less than $10,000 each, the jewelry was worth approximately
$6,800 and the car was worth approximately $19,500, less a lien
in the amount of approximately $5,185. When we exclude the
marital residence from the equitable distribution award, Supreme
Court's division of the marital assets was nearly equal. Mindful
of the court's "substantial flexibility in fashioning an
appropriate decree based on what it views to be fair and
equitable under the circumstances," and particularly considering
that the husband retained the majority of the business – the
parties' sole income producing asset – there is no basis to
conclude that Supreme Court improvidently exercised its
substantial discretion when distributing the marital property
(Mahoney-Buntzman v Buntzman, 12 NY3d at 420; see Funaro v
Funaro, 141 AD3d at 898; Cornish v Eraca-Cornish, 107 AD3d at
1323).
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      The husband also contends that Supreme Court should not
have awarded counsel fees to the wife without first conducting a
hearing. We disagree. The parties authorized the court to
decide the issues on submission and the husband did not request a
hearing on counsel fees in his statement of proposed disposition
(see Bush v Bush, 46 AD3d 1140, 1141 [2007]). Further, we
decline the husband's invitation to consider facts that have
arisen since the entry of the divorce (see Pacillo v Pacillo, 155
AD2d 736, 737 [1989]).

     Egan Jr., J.P., Rose, Clark and Aarons, JJ., concur.



     ORDERED that the judgment is affirmed, without costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
