Anonymous 4 v Anonymous 4

[*1] Anonymous 4 v Anonymous 4 2005 NY Slip Op 51662(U) [9 Misc 3d 1119(A)] Decided on August 26, 2005 Supreme Court, Nassau County Ross, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on August 26, 2005
Supreme Court, Nassau County

Anonymous 4, Plaintiff,

against

Anonymous 4, Defendant.



200138/05

Robert A. Ross, J.

In view of the statutory consideration that the trier of fact set the valuation date of each asset "as soon as practicable" after commencement of the matrimonial action, [Domestic Relations Law §236 (B)(4)(6)], a pre-trial hearing was held before me to determine classification of assets, as being separate or marital. Such a determination by the Court is "encouraged whenever possible." See, Antenucci v. Antenucci, 193 AD2d 948; also see, Yovino, "The Authority And Obligation Of The Trial Court To Classify Assets And Select Proper Valuation Dates Prior To Trial," 23 New York State Bar Association Fam. L. Rev., No. 2, P. 25. What constitutes marital property is a question of fact to be determined in the first instance by the trial court. Sanford v. Sanford, 146 AD2d 622. Here, given the obfuscation in the production of documents and especially considering the threats of public dissemination of that discovery, a classification hearing was both necessary and appropriate. See, Majauskas v. Majauskas, 61 NY2d 481, 494.

Domestic Relations Law §236 (B)(1)(C) defines marital property as "all property" acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held. In identifying nothing less than "all property" acquired during the marriage as marital property, this section evinces an unmistakable intent to provide each spouse with a fair share of things of value that each helped to create and expects to enjoy at a future date. See, DeLuca v. DeLuca, 97 NY2d 139, DeJesus v. DeJesus, 90 NY2d 643. Thus, marital property consists of a "wide range of intangible interests which in other contexts may not be recognized as divisible property at all." See, DeJesus, supra, at 647. But, it is equally clear that the legislature intended such recognition to be applied only with respect to property acquired through "the efforts of either spouse" (emphasis added). See, Majauskas v. Majauskas, 61 NY2d, at 489 - 490, quoting Domestic Relations Law §236 (B)(5)(d)(6). See also, Burns v. Burns, 84 NY2d 369. [*2]

The broad interpretation of "marital property" acquired during the marriage regardless of the form in which title is to be held, has left "things of value" to be determined by a court, even though that thing may fall outside the scope of traditional property concepts. O'Brien v. O'Brien, 66 NY2d 576. The statutory definition of marital property does not mandate that it be an asset with an exchange value or be saleable, assignable or transferable. The dilemma in distributing such intangible assets is a factor the court must consider in determining equitable distribution. See, Domestic Relations Law §236 (B)(5)(d)(6)(a).

FACTS

The plaintiff, [D.L.] is 42 years of age and was married to defendant [M.L.] on November 13, 1985. She was a graduate of Calhoun High School in Merrick, NY, does not have a college degree, or any training in business management. She is the self-described co-manager of the parties' daughter [L.L.], who has been widely featured in movies and other entertainment media. In October 2000, the plaintiff formed "LL Rocks", to facilitate an entity for the income earned by [L], and in 2004, she also formed "LL Rocks Productions", for the same purpose. The plaintiff was the sole shareholder of the entities, which income was derived solely through the earnings of [L's] career. It is those entities ["LL Rocks" and "LL Rocks Productions"] which the defendant seeks equitable distribution of. The plaintiff reflected that other than 20% set aside for a block trust for [L], who was under 18, some of the income earned by "LL Rocks" and "LL Rocks Productions" was used for food, clothing and shelter expenses for the parties other children ["M", "A" and "D"].

Commencing in January 2005, the income from [L's] career, previously paid to "LL Rocks" and "LL Rocks Productions", was diverted to "Crossheart Music" and "Crossheart Productions", entities established on behalf of [L], who then turned 18. The plaintiff credibly testified that for the period of time that she has worked as her daughter's manager she has received between 10 - 15% of her salary. That income was used to support herself and the parties' four children, as well as to also pay for the defendant's attempt at rehabilitation at the Betty Ford Clinic. The defendant presented no evidence or testimony to rebut any of the facts which the plaintiff meticulously detailed.

The plaintiff, with no professional experience as a manager and with no college degree, had no written agreement with her daughter. Her most important responsibility, in her view, was detailed as "being there as a mom - - I'm L's eyes and ears." Her responsibility and duties as a manager were abrogated by her to publicists, business managers, security, counsel and creative consultants, who she interviewed and screened for her daughter. Her office is located in her home, and she has one "assistant" who helps her attend to the needs of her other children, as well as to help her answer fan mail. She did not "manage" any other talent, nor does she advertise or [*3]promote herself as such.

Her professional input, while lauded in the testimony of [L's] music counsel, Debra White, was described as being limited to facilitating communication between [L] and those who need to speak with her. Her abilities were self-minimized by the plaintiff, who vividly detailed that "my daughter and I were not familiar with this entertainment process and we trusted the judgment of others." To underscore the plaintiff's limitations, [L] utilized the services of the "Untitled Agency", professional managers located in Los Angeles, California.

Defendant presented no evidence, testimony, or otherwise demonstrated that the shares of "LL Rocks" and "LL Rock Productions" were nothing more than entities established by the plaintiff, solely as [L's] guardian, to facilitate a corporate vehicle to receive the income earned by [L]. These entities were detailed to be hollow, with [L's] income currently being paid to "Crossheart Music" and "Crossheart Productions." The income of [L] having been the only previous source of revenue to "LL Rocks" and "LL Rocks Productions", they now only serve to contain the Block Trust income derived by [L]. That income is clearly [L's] and cannot be considered as being property "acquired through the efforts of either plaintiff or defendant." See, Majauskas v. Majauskas, 61 NY2d, at 489 - 490, Domestic Relations Law §236 (B)(5)(d)(6). See, Burns v. Burns, supra.

Unless proven otherwise (emphasis added) all property acquired by either or both spouses during the marriage is marital property, regardless of whose name title to the property is taken. See, Domestic Relations Law §236(B)(1)(C), Price v. Price 69 NY2d 8, 1.

Here, it has unequivocally been "proven otherwise."

It was wholly undisputed and uncontroverted that "LL Rocks" and "LL Rocks Productions", while acquired during the marriage in the plaintiff's name, were entities established for/funded with earnings of L's career who at that time, was under 18. The statutory protection afforded to child performers and models is set forth, in §35.01, Arts and Cultural Affairs Law. See also, Labor Law §130, 131, 150. See also, Shields v. Gross, 58 NY2d 338. Under the broad ambits of §35.01, the oversight of contracts and compensation of infants, as well as the regulation of guardianship of their earnings, is subject to court approval. See also, Arts and Cultural Affairs Law §35.03. For these assets of [L] to be distributed between the parties as urged by defendant, would be to circumvent the protections mandated by the clear and unequivocal language of the statute. As a matter of law, the defendant's request for a distribution of the child's assets, would present an impermissible statutory violation. [*4]

The classification of the plaintiff's career is far less problematic . An interest in a profession or professional career potential is marital property which may be represented by direct or indirect contribution of the non-title holding spouse, including financial contributions and non-financial contributions made by caring for the home and family. O'Brien v. O'Brien, 66

NY2d 584. But if there is to be any notion or semblance of "economic reality", the career as a manager of this plaintiff is not based upon any special skills she has. She utterly lacks any business training, and unembarrassedly admitted as such. Her skills as a mother and trusting confidant of her daughter has lent itself to appropriate abrogation of responsibilities to other professionals - - - legal, publicity, security, creative input and management. Simultaneously, her income as her daughter's manager was selflessly exposed as being gratuitous - - - the responsibilities that a manager would typically perform were delegated by the plaintiff to others. In turn, L's care for her mom and her siblings was wholly selfless and demonstrated by paying a salary for "services." Realistically, these "services" were rendered by a loving mom keeping a watchful eye on the professionals who were chosen to promote the career of her daughter. These skills are not assets subject to equitable distribution - - - this is a parents dedication and love for a child, and reciprocation of that child's dedication and love for her mom and her siblings.

As more and more opportunities present themselves to [L] as her career advances, so too, perhaps, will her largesse to her family. But this ineffable talent and unique entertainment ability belongs to [L] and is not subject to distribution of the parties. The defendant's effort to seek equitable distribution of this career belonging to someone other than the plaintiff, does not fall within the ambits of the statute. See, Domestic Relations Law §236 (B)(5)(d)(6). See, Majauskas, Burns, supra.

The dimensions of defendant's position expanded with a great deal of effort to concoct and orchestrate a plan of recovery of his own devising. During his financial and paternal absence, the plaintiff and her children have drawn closer and receded together in the face of turmoil, dysfunction, and multiple arrests of the defendant. For all of defendant's professed interest in his children, his criminal ping-pongs back and forth between cases reflect extraordinary selfishness and gimmicky schemes to sell the adverse publicity he creates, most of which are already the subject of multiple Court orders.

The plaintiff's naivete in business affairs was carefully detailed as was her liabilities in lacking formal training as a business manager. But, her deductive smarts, and her sensitivity to surrounding [L] with well intentioned and result-oriented professionals, has proven to be as invaluable as the services these professionals render. The "high beam" she provides has served [L] well. [*5]

CONCLUSION

However defendant's theory to equitable distribution may be guised, he seeks, in effect, equitable distribution of his celebrity daughter's [L's] assets.

The wide discretion afforded to the trier of fact, requires a concomitant responsibility to

determine what assets are marital, and subject to Domestic Relations Law §236. To that end, equitable distribution does not apply to all assets, nor should it be misused or misapplied to extend to assets that were never within the contemplation of the statute. This asset is not derived from the labors or contribution of the plaintiff or defendant. It is rooted squarely from the income and celebrity of their daughter. Through her largesse, [L] has paid to her mom a salary and various perks to act as her "manager." Her role as a manager, was not based upon professional experience or expertise. Her duties, rather, were that of a loving and doting mother, utilizing her instincts, trust and maternal obligations to carefully screen and help select appropriate professionals to best serve her daughter. Those selections have, over time, proven to be necessary, appropriate and successful. [L's] entertainment career has blossomed and proved lucrative. Her success, in turn, has precipitated a financial largesse to her mom and her siblings, filling the void created by the defendant's lack of support to the family household, and has in many ways been a resounding answer to the dysfunction that her father has brought to the household.

The assets here are not as purely financial as the defendant would believe them to be - - - they are especially evident in the telling details of [L's] trust, love, and devotion to her family - - - the only tangible assets of significant value to which the defendant did not seek to pursue.

Accordingly, those assets known as "LL Rocks", "LL Rock Productions", as well as the plaintiff's career as a manager, are not marital property. The defendant's application for appraisal fees of these assets is denied, as is his request for legal fees.

E N T E R:

HON. ROBERT A. ROSS

J.S.C.

Dated: August 26, 2005

Mineola, New York [*6]