In an action for a divorce and ancillary relief, the defendant appealed from an amended judgment of divorce which, upon a decision of the lower court dated August 22, 2018, following a trial, awarded the plaintiff 50% of the defendant’s interest in Manhattan Bridge Car Wash (“MBCW”), Inc., and 50% of the value of the defendant’s interest in certain property owned by Manhattan Bridge Car Wash, Inc., in the event the property was sold. The amended judgment is affirmed insofar as appealed from.
At the trial, the defendant testified that he owned a percentage interest in MBCW, which was incorporated during the marriage. MBCW owned a lease to a car wash in Brooklyn, but sold that lease in 2007 and used the proceeds of that sale to purchase a building in Manhattan. In 2016, MBCW sold that building and used the proceeds to buy a building in Huntington, which was leased by Walgreens. The defendant testified that he had no personal responsibility for the Huntington property, but he received a portion of the monthly rent from the lease as a shareholder of MBCW. In an amended judgment of divorce, the lower court awarded the plaintiff 50% of the defendant’s interest in MBCW, and 50% of the defendant’s interest in the Huntington property in the event that the property was ever sold.
The Second Department found that the lower court did not improvidently exercise its discretion in awarding the plaintiff 50% of his interest in MBCW. The defendant’s brother testified at trial that he gifted the defendant his interest in MBCW. The assertion was not supported by any documentary evidence, and the lower court found the testimony to be incredible. Thus, the defendant failed to meet his burden of establishing that his interest in MBCW was separate property.
Further, the defendant’s argument that his MBCW interest should not have been distributed in-kind, which was raised for the first time on appeal, is not properly before the Second Department (see Martin v. Martin, 256 AD2d 390, 391). Nonetheless, the contention is without merit since he failed to establish that an in-kind distribution of his interest in MBCW was unnecessary, impracticable, or burdensome (see Raposo v. Raposo, 164 AD3d at 1385).
In connection with equitable distribution, both parties were involved with MBCW during their 25-year marriage, and the equal distribution of the defendant’s interest was a provident exercise of the court’s discretion (see Spencer-Forrest v. Forrest, 159 AD3d at 764).
The parties were married in 2003 and are the parents of a child. The plaintiff commenced this action for a divorce and ancillary relief in February 2014. Following a trial on the outstanding issues of custody and child support, the court awarded the defendant residential custody and directed the plaintiff to pay $2,599.58 monthly in child support. The plaintiff appealed from so much of the judgment of divorce as awarded child support, on the ground that the court calculated child support based on the parties’ income over the statutory cap.
The Second Department found that the lower court stated that it applied the child support percentage to the amount above the statutory cap primarily because of the parties’ considerable income, the needs of the child, and the fact that the defendant was not seeking any add-on contributions from the plaintiff for the child’s expenses, other than basic child support. Under the circumstances of this case, the Second Department found that the court providently exercised its discretion in applying the child support percentage to the amount above the statutory cap primarily due to the parties’ considerable income, the child’s needs, and the fact that the defendant was not requesting any add-on contributions from the plaintiff for the child’s expenses, other than basic child support. The Second Department found that the lower court providently exercised its discretion in applying the child support percentage to the parties’ income over the statutory cap (see Candea v. Candea, 173 AD3d at 665; Matter of Santman v. Schonfeldt, 159 AD3d 914, 915; Matter of Keith v. Lawrence, 113 AD3d 615, 616).
The parties were divorced by judgment dated August 31, 2018. In February 2019, the plaintiff moved to enforce specified provisions of the judgment, and for an award of attorney’s fees in the sum of at least $25,000. The plaintiff then amended the request in her motion to seek an attorney fee award in the sum of $34,284.86. The lower court granted that branch of the plaintiff’s motion which was for an award of attorney’s fees to the extent of awarding her attorney’s fees in the sum of $13,643.81. The plaintiff appealed and the defendant cross-appealed.
Given the equities and circumstances of this case, the Second Department found that the lower court providently exercised its discretion in awarding the plaintiff attorney’s fees in the sum of $13,643.81 (see Domestic Relations Law § 238; Boukas v. Boukas, 163 AD3d 755).