        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

296
CA 11-01257
PRESENT: CENTRA, J.P., CARNI, LINDLEY, SCONIERS, AND MARTOCHE, JJ.


ELLEN J. GALLAGHER,
PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

EDWARD R. GALLAGHER,
DEFENDANT-APPELLANT-RESPONDENT.
(APPEAL NO. 1.)


D.J. & J.A. CIRANDO, ESQS., SYRACUSE (JOHN A. CIRANDO OF COUNSEL), FOR
DEFENDANT-APPELLANT-RESPONDENT.

GETNICK, LIVINGSTON, ATKINSON & PRIORE, LLP, UTICA (THOMAS L. ATKINSON
OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an amended judgment of the Supreme
Court, Oneida County (David A. Murad, J.), entered May 26, 2011 in a
divorce action. The amended judgment, among other things, dissolved
the marriage between the parties and determined the equitable
distribution of the marital assets.

     It is hereby ORDERED that the amended judgment so appealed from
is unanimously modified on the law by reducing the distributive award
in the amount of $586,065 set forth in the 3rd decretal paragraph to
$543,227 and reducing the lump sum partial distributive award in the
amount of $260,000 set forth in the 4th, 5th, and 10th decretal
paragraphs to $217,162, and as modified the amended judgment is
affirmed without costs.

     Memorandum: Plaintiff wife commenced this divorce action in
August 2007 seeking, inter alia, equitable distribution of the marital
property and child support. In appeal No. 1, defendant husband
appeals and the wife cross-appeals from an amended judgment following
a trial and, in appeal No. 2, the husband appeals from a subsequent
order that, inter alia, restricted him from entering into contracts
for real property. The parties have owned and operated a dairy farm
since 1983. The parties’ second oldest son (hereafter, son) started
working full-time on the farm in early 2002, at approximately the same
time that the wife no longer had any involvement in the farm. The
husband and son proceeded to expand the farm by increasing the size of
the cattle herd and acquiring additional real property, some of which
was titled in the son’s name. In August 2008, the son commenced an
action against the parties seeking an interest in the farm, and the
actions were consolidated for a joint trial. At the conclusion of
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                                                         CA 11-01257

testimony with respect to the son’s action, Supreme Court concluded
that the son and the husband had not formed a partnership and
dismissed the son’s complaint.

     With respect to the amended judgment in appeal No. 1, the husband
contends on appeal that, in determining the value of the farm for
equitable distribution purposes, the court should not have included
the value of the real property that was titled in the son’s name.
Contrary to the wife’s contention on her cross appeal, the husband is
not collaterally estopped from raising that contention inasmuch as the
order dismissing the son’s complaint did not address his entitlement
to possession of real property that was titled in his name (see Zayatz
v Collins, 48 AD3d 1287, 1290). We conclude, however, that the
husband’s contention is without merit. Pursuant to Domestic Relations
Law § 236 (B) (5) (d) (13), a court may consider “any transfer or
encumbrance made in contemplation of a matrimonial action without fair
consideration” when making its equitable distribution determination.
Here, the court properly determined that the value of the real
property that was titled in the son’s name constituted marital
property inasmuch as that property was purchased using farm income
(see Niland v Niland, 291 AD2d 876, 876-877). The record supports the
court’s determination that the purchases of property titled in the
name of the son were part of the husband’s scheme to divest the wife
of her interest in the farm.

     Contrary to the husband’s further contention on appeal in appeal
No. 1, the court did not abuse its discretion in denying that part of
his motion to retain and offer testimony from different expert
witnesses than those he had listed in his expert disclosure. The
court properly determined that the husband failed to demonstrate “good
cause” for the late disclosure, which was not made until the middle of
the trial, and that permitting the late disclosure would be
prejudicial to the wife (CPLR 3101 [d] [1] [i]; see Caccioppoli v City
of New York, 50 AD3d 1079, 1080; see also Saggese v Madison Mut. Ins.
Co., 294 AD2d 900, 901; cf. Peck v Tired Iron Transp., 209 AD2d 979,
979). Contrary to the husband’s contention, “[t]he court did not err
in failing to take into account the tax impacts of the distributive
award because there was no evidence that any assets would have to be
sold” (Atwal v Atwal [appeal No. 2], 270 AD2d 799, 799, lv denied 95
NY2d 761; see Kudela v Kudela, 277 AD2d 1015, 1015).

     With respect to the equitable distribution of the farm, the
husband contends on appeal in appeal No. 1 that the court improperly
calculated the value thereof, and the wife contends on her cross
appeal that the court erred in its valuation date. In addition, both
parties contend that the court’s determination to award the wife 45%
of that asset was inequitable. First, we conclude that the court did
not abuse its discretion in valuing the farm as of the date of the
commencement of the action (see George v George, 237 AD2d 894, 894).
As the court noted, the farm “had not undergone the type of radical
alteration subsequent to the commencement of the action that would
warrant a valuation of the [farm] at the time of trial” (Grunfeld v
Grunfeld, 94 NY2d 696, 708). Second, we reject the husband’s
contention that the court erred in its valuation of the real property
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                                                         CA 11-01257

of the farm, but we agree with the husband that the court erred in
failing to decrease that amount by a debt on a portion of the real
property in the amount of $46,201 (see Loria v Loria, 46 AD3d 768,
770). We further agree with the husband that the value of the farm
should be decreased by the amount of the open accounts, which was
$48,995. It was undisputed that the wife’s expert appraised the farm
personalty on a liquidation basis, which the court adopted, and a
liquidation of the business would apply the debts on those open
accounts. We therefore modify the amended judgment by reducing the
distributive award to the wife in the amount of $586,065 set forth in
the 3rd decretal paragraph to $543,227 and reducing the lump sum
partial distributive award in the amount of $260,000 set forth in the
4th, 5th, and 10th decretal paragraphs to $217,162. We further
conclude that the court did not abuse its discretion in awarding the
wife 45% of the value of the farm (see generally Oliver v Oliver, 70
AD3d 1428, 1428-1429). Contrary to the husband’s contention, “the
relevant factors were taken into consideration by the court and the
reasons for its decision are articulated” (Butler v Butler, 256 AD2d
1041, 1042, lv denied 93 NY2d 805).

     We reject the husband’s further contention on appeal in appeal
No. 1 that the court abused its discretion in awarding him 15% of the
value of the wife’s enhanced earnings from teaching based on her
attainment of a master’s degree (see Martinson v Martinson, 32 AD3d
1276, 1277). “ ‘[W]here only modest contributions are made by the
nontitled spouse toward the other spouse’s attainment of a degree . .
. and the attainment is more directly the result of the titled
spouse’s own ability, tenacity, perseverance and hard work, it is
appropriate for courts to limit the distributed amount of that
enhanced earning capacity’ ” (Higgins v Higgins, 50 AD3d 852, 853).
Contrary to the contentions of the husband on appeal and the wife on
her cross appeal, the court did not abuse its discretion in awarding
the wife $40,000 in counsel fees, which was less than half the amount
she was seeking (see Blake v Blake [appeal No. 1], 83 AD3d 1509). The
court properly considered, inter alia, “the financial circumstances of
both parties . . . [and] the existence of any dilatory or
obstructionist conduct” (id.; see Johnson v Chapin, 12 NY3d 461, 467,
rearg denied 13 NY3d 888). Although the wife had the financial
ability to pay for her own counsel fees, the husband had engaged in
some obstructionist conduct during the trial. We have considered the
parties’ remaining contentions in appeal No. 1 and conclude that they
are without merit.

     With respect to the order in appeal No. 2, we agree with the
husband that the court erred in restricting him from entering into or
closing on any real property contracts inasmuch as the wife did not
seek that relief in her order to show cause (cf. Tirado v Miller, 75
AD3d 153, 158). We therefore modify the order in appeal No. 2 by
vacating the fifth ordering paragraph.


Entered:   March 23, 2012                       Frances E. Cafarell
                                                Clerk of the Court
