The parties in this matrimonial action were married in 1981 while each was in their forties. There are no children of the marriage.

Although married in 1981, the parties did not begin to reside together until August of 1983. In 1984, they bought the marital residence located at 332 South Fourth Avenue, Mt. Vernon, New York. In or about December 1988,the parties separated with plaintiff moving to Roanoke, Virginia, and defendant continuing to reside at the marital residence.

Through their submissions, the parties seek to have the Court apply two respectively different valuation dates for the marital residence. While plaintiff seeks to use a date close to trial, defendant seeks to employ the 1988 date of separation.

Defendant's motion to have the Court use the pre-action date of separation is denied. Section 236(B)(4)(b) of the Domestic Relations Law provides that the "valuation date or dates may be anytime from the date of commencement of the action to the date of [*2]trial." No authority exists for the setting of a pre-commencement separation date for the fixing of the value of marital assets.

The motion and cross-motion are likewise denied to the extent that the parties seek to have the Court now fix any other date as the date of valuation of the marital residence.

It is well established "that there can be no strict rule mandating the use of a particular valuation date [for the date of valuation of a marital asset] and . . . a trial court must have the discretion to select a date appropriate to the case before it in light of the particular circumstances presented"(Wegmann v Wegmann, 123 AD2d 220, 234 [2d Dept., 1986]). Of further consideration in setting a valuation date is whether a particular asset is "active" versus "passive", the former being valued as of the date of the commencement and the latter as of the date of trial (Ferraioli v. Ferraioli, 295 AD2d 268, 270 [1st Dept.2002]; see also, McSparron v. McSparron, 87 NY2d 275, 287-288 [such characterizations should be used as helpful guideposts and not "immutable rules of law"]).

Although plaintiff does not question the fact that defendant has had exclusive use and possession of the marital residence since December 1988, there are many issues of fact which preclude the Court from rendering an informed determination at this time as to whether the marital residence is a passive or active asset. Such issues include, but are not limited to, whether defendant made any capital contributions to the marital residence or otherwise contributed thereto, thus rendering at least some portion of its appreciation "active" as opposed to "passive." Questions of fact also exist as to whether and to what extent defendant may have received rental income from the second of the two apartments located in the marital residence and whether he used said marital funds to defray mortgage payments and real estate taxes.

Upon setting the date of valuation as a date falling within the statutory confines of DRL §236 (B)(4)(b), the trial court will then proceed to "distribute[] [the marital assets] equitably between the parties, considering the circumstances of the case and of the respective parties" (DRL §236[B][5][c]), as may be determined at trial.

The pensions in question consist of defendant's New York State Retirement Pension and plaintiff's J.C. Penney and V.A. pension. While such passive assets will be valued as of the date of the commencement of the matrimonial action (see, Elmaleh v. Elmaleh, 184 AD2d 544, 545; Glasberg v. Glasberg, 162 AD2d 586, 587), the question here is whether to use the commencement date of this action or an earlier discontinued Bronx County action.

Although there is no dispute that the Bronx County action was dismissed upon written stipulation of both parties, this Court will defer to trial the determination as to whether to use the commencement date of this action or the Bronx County action as the valuation date of the pensions. In order for the Court to thoroughly consider and then correctly decide this issue it must take into full account all of the facts and circumstances surrounding the discontinuance of the Bronx County [*3]action and whether, post-Bronx County discontinuance, the "parties reconciled and continued to receive the benefits of [the] marital relationship"(Lamba v. Lamba, 266 AD2d 515 [2d Dept. 1999]), such as it existed in this unorthodox relationship.

The foregoing constitutes the Opinion, Decision & Order of the Court.

Dated: White Plains, New York

March 6, 2007

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HON. LEWIS J. LUBELL, J.S.C.

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