Opinion
February 10, 1999
Appeal from Judgment of Supreme Court, Erie County, Gorski, J. — Matrimonial.
Present — Hayes, J. P., Wisner, Pigott, Jr., Callahan and Balio, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Defendant appeals from a final judgment of divorce that distributed the marital property of the parties and awarded plaintiff permanent maintenance. The court adopted the Referee's findings and recommendations with respect to the distribution of marital property. Although the Referee did not discuss each statutory factor she considered, her report establishes that she considered the relevant factors ( see, Domestic Relations Law § 236 [B] [5] [d]) and properly recommended that, because of the length of the marriage, the assets should be distributed equally pursuant to the Majauskas formula ( see, Majauskas v. Majauskas, 61 N.Y.2d 481).
We reject the contention of defendant that Supreme Court abused its discretion in awarding plaintiff 50% of his IBM monthly pension income. The court erred, however, in ordering defendant to commence payment of that pension on August 1, 1995, the date on which plaintiff left the marital residence. The court should have used the date of commencement of the action, January 31, 1996, as the date on which payments should have begun ( see, Majauskas v. Majauskas, supra, at 490). Defendant's contention that the court misapplied the Majauskas formula in determining the monthly pension benefits payable to plaintiff is without merit. The court properly calculated the monthly pension benefits and credited defendant with nine years of separate property in his IBM pension.
The court also erred in utilizing the date of physical separation of the parties as the date of valuation of the parties' cash management accounts (CMA Accounts). The court should have used the date of commencement of the action as the valuation date ( see, Alaimo v. Alaimo, 199 A.D.2d 1039; Davis v. Davis, 128 A.D.2d 470, 478). Further, in distributing the CMA Accounts, the court failed to determine the value of and distribute the dividends earned on the proceeds from the sale of the marital residence that were deposited in plaintiff's account. In addition, the court failed to consider funds withdrawn by defendant from his CMA Account to purchase a home.
The court did not abuse its discretion in valuing the checking account by reconciling the information provided in defendant's affidavit with defendant's testimony at the hearing and averaging the two figures provided by defendant to determine the value of the account ( see generally, Bossard v. Bossard, 199 A.D.2d 971). Further, the court did not abuse its discretion in valuing the 1991 automobile. Defendant himself set forth the value of the automobile in his affidavit sworn to less than six months prior to commencement of the action. The court was entitled to credit that value, which was consistent with the NADA Used Car Guide, rather than defendant's testimony at the hearing ( see, McCauley v. Drumm, 217 A.D.2d 829, 830-831; see generally, Bossard v. Bossard, supra).
Finally, the court did not abuse its discretion in awarding plaintiff maintenance in the amount of $200 per week ( see generally, Majauskas v. Majauskas, supra, at 494; Torgersen v. Torgersen, 188 A.D.2d 1023, 1024). The appropriate findings pursuant to Domestic Relations Law § 236 (B) (6) (a) (1), (2), (3) and (4) were made, and plaintiff was properly awarded maintenance retroactive to the date of commencement of the action.
Thus, we modify the judgment by providing in the fourth decretal paragraph that distribution of defendant's pension shall commence on January 31, 1996 and by vacating the provisions providing for distribution of defendant's pension prior to that date and by vacating the fifth decretal paragraph, and we remit the matter to Supreme Court to determine the amount of defendant's pension to which plaintiff is entitled from the period of January 31, 1996 through August 31, 1996 and the value of the CMA Accounts on the date of commencement of the action and to distribute the pension and those Accounts. Because there is no evidence in the record regarding the value of the CMA Accounts on the date of commencement of the action, the court shall take further proof regarding such value.