State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: July 14, 2016 522163 

________________________________

MARIA CERVONI,

Respondent,

v MEMORANDUM AND ORDER

CARLO CERVONI,

Appellant.

________________________________

Calendar Date: May 23, 2016

Before: Garry, J.P., Egan Jr., Lynch, Devine and Mulvey, JJ.

__________

Jackson Bergman, LLP, Binghamton (Benjamin K. Bergman of

counsel), for appellant.

Richard J. Grace, Binghamton, for respondent.

__________

Devine, J.

Appeal from a judgment of the Supreme Court (Connerton,

J.), entered March 2, 2015 in Broome 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 1975 and have no unemancipated

children. The wife commenced this divorce action in 2013,

asserting an irretrievable breakdown in the marriage

(see Domestic Relations Law § 170 [7]). Following a nonjury

trial, Supreme Court issued a November 2014 decision in which it

found that the grounds for divorce had been established and

outlined the details of its equitable distribution and

maintenance awards. Supreme Court issued a judgment of divorce

that incorporated the terms of that decision, and the husband
-2- 522163 

appeals.

The husband first argues that Supreme Court erred in

ordering him to pay the wife $1,000 a month in maintenance for 10

years. 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 (Murray v Murray, 101 AD3d 1320, 1322 [2012], lv

dismissed 20 NY3d 1085 [2013]; accord Robinson v Robinson, 133

AD3d 1185, 1186 [2015]). Supreme Court made a detailed analysis

in which it considered the then-applicable statutory factors and,

contrary to the husband's contention, it was not required to

"apply each and every factor set forth in the statute" in doing

so (Robinson v Robinson, 133 AD3d at 1186; see Domestic Relations

Law § 236 [B] [former (6)]; Curley v Curley, 125 AD3d 1227, 1228

[2015]). 

As to whether the award constituted an abuse of discretion,

the husband is self-employed by a construction company that he

founded in 1985, and he acknowledged that he paid for essentially

all of his personal obligations using corporate funds. Supreme

Court aptly observed, as a result, that the husband had far

greater financial resources than his lack of personal banking

accounts and meager reported income would suggest. In contrast,

the wife earned a bit over $22,000 in 2013, moved in with her

adult son upon leaving the marital residence and was unlikely to

significantly improve her earning capacity. Supreme Court relied

upon the income disparity between the parties in fashioning its

award of maintenance and, particularly given the length of the

marriage and the financial sacrifices made by the wife in order

to act as caregiver for the parties' children and provide the

family with health insurance, we perceive no abuse of discretion

in the amount or duration of maintenance awarded (see Robinson v

Robinson, 133 AD3d at 1186-1187; Curley v Curley, 125 AD3d at

1228-1229; Murray v Murray, 101 AD3d at 1322; O'Connor v

O'Connor, 91 AD3d 1107, 1108-1109 [2012]).

The husband also challenges "aspects of Supreme Court's

equitable distribution award, which will not be disturbed absent

an abuse of discretion or failure to consider the requisite
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statutory factors" (Robinson v Robinson, 133 AD3d at 1187

[internal quotation marks and citations omitted]; see MahoneyBuntzman v Buntzman, 12 NY3d 415, 420 [2009]; Mula v Mula, 131

AD3d 1296, 1298 [2015]). Supreme Court valued the marital assets

at $816,619.65 and, after considering the pertinent statutory

factors (see Domestic Relations Law § 236 [B] [5] [d]),

determined that those assets should be divided equally. The

largest marital asset by far was the company, which owned a

variety of real property and equipment, and Supreme Court found

that it had a net value of $625,864.47. Supreme Court awarded

the company to the husband and, to account for the resulting

disparity in asset distribution, ordered him to pay a

distributive award of $392,604.64 to the wife over the course of

five years. 

The husband does not seriously dispute, and we agree with

Supreme Court, that an equal division of marital property was

called for. He does argue that the valuation of certain company

equipment and the method of division was improper. In that

regard, most, but not all, of the company's equipment was valued

by an expert appraiser, and Supreme Court valued some other

equipment by halving its cost basis as listed on a 2013 equipment

depreciation schedule.1 There is nothing improper in considering

depreciation in valuing the assets of a business and, given that

"valuation is an exercise properly within the fact-finding power

of the trial courts," we cannot say that Supreme Court erred in

valuing those items as it did (Burns v Burns, 84 NY2d 369, 375

[1994]; accord Gaglio v Molnar-Gaglio, 300 AD2d 934, 937 [2002];

see Brett R. Turner, 2 Equitable Distribution of Property § 7.21

[3d ed 2015]). 

1 The husband points out the lack of other proof to

establish the value or the continued ownership of this additional

equipment, but it was he who placed the 2013 depreciation

schedule into evidence at trial. The schedule was admitted

during the testimony of an accountant, who gave no indication

that the equipment was no longer in the possession of the

company. The husband notably fails to assert on this appeal that

the equipment is actually valueless or no longer in the company's

possession.
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The husband also asserts that certain pieces of equipment

were double-counted in calculating the equitable distribution

award and, while we are not uniformly persuaded by those

assertions, we do agree that an excavator for which the record

contains an invoice and the appraiser's assessment of its value

was counted twice. Supreme Court likewise seems to have doublecounted a vibratory roller listed on the depreciation schedule

that the appraiser's testimony reveals was the same item he

appraised as a "compactor." Since Supreme Court found the

appraised value of those items to be credible, we modify the

judgment to remove the additional valuations, amounting to

$69,360, which reduces the total value of the marital estate to

$747,259.65. The effect of that reduction is to reduce the

distributive award to be paid by the husband to $357,624.65.

The husband's remaining contentions have been examined and

found to be lacking in merit.

Garry, J.P., Egan Jr., Lynch and Mulvey, JJ., concur.
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ORDERED that the judgment is modified, on the law and the

facts, without costs, by reversing so much thereof as doublecounted certain marital property as set forth in this Court's

decision; reduce the net value of the marital estate to

$747,259.65 and plaintiff's distributive award to $357,624.65;

and, as so modified, affirmed.

ENTER:

Robert D. Mayberger

Clerk of the Court