| Judge v Judge |
| 2008 NY Slip Op 01115 [48 AD3d 424] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Michael L. Judge, Appellant, v Lola S. Judge,Respondent. |
—[*1] Kantrowitz, Goldhammer & Graifman, P.C., Chestnut Ridge, N.Y. (Paul B. Goldhammer ofcounsel), for respondent.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by his brief,from stated portions of a judgment of the Supreme Court, Rockland County (Nelson, J.), datedJune 19, 2006, which, upon a decision of the same court dated May 23, 2006, made after anonjury trial, inter alia, valued the defendant's Federal Reserve Bank Defined Benefit Plan in thesum of $36,217, determined that the defendant's Masters of Business Administration degree didnot enhance her future earnings, awarded him a credit in the sum of only $5,054 for hiscontribution to the appreciation in value of the defendant's separate property, awarded thedefendant a credit in the sum of $2,900 for expenses he failed to pay toward the parties' formervacation home, awarded him a credit in the sum of only $6,941 towards the carrying charges hepaid on the marital home after the commencement of the action, awarded him an attorney's fee inthe sum of only $20,000, and denied his application for retroactive child support.
Ordered that the judgment is modified, on the law, on the facts, and as an exercise ofdiscretion, (1) by deleting the provision thereof determining that the defendant's Masters ofBusiness Administration degree did not enhance her earnings, and substituting therefor aprovision awarding the plaintiff the sum of $141,250 as his share of the defendant's enhancedearnings attributable to her Masters of Business Administration degree, (2) by deleting theprovision thereof awarding the defendant a credit in the sum of $2,900 for expenses the plaintifffailed to pay toward the parties' former vacation home and substituting therefor a provisionawarding the defendant a credit in the sum of $2,275, (3) by deleting the provision thereofawarding the plaintiff a credit of $6,941 and [*2]substitutingtherefor a provision awarding the plaintiff a credit of $17,675, and (4) by deleting the provisionthereof awarding the plaintiff an attorney's fee in the sum of $10,000, and substituting therefor aprovision awarding the plaintiff an attorney's fee in the sum of $50,000, including a $10,000pendente lite award; as so modified, the judgment is affirmed insofar as appealed from, withcosts to the plaintiff.
The parties were married in 1983 and have two children. In 1989 the defendant stoppedworking outside the home in order to take care of the parties' first child. She primarily stayedhome and took care of the parties' children until the fall of 1993, when she enrolled in a programfor a Masters of Business Administration degree (hereinafter an MBA degree) at a college wherethe plaintiff was employed as a professor. In the spring of 1994 the defendant was hired by theFederal Reserve Bank (hereinafter the FRB), through the college placement office, and shereceived her MBA degree in February 1997. The defendant's first job with the FRB was as amanagement information analyst, and at the time of trial she was an officer at the FRB andvice-president of the FRB's Cash and Custody Division. The defendant moved out of the maritalhome in 2000 and the plaintiff commenced this action on July 30, 2002.
Under the circumstances of this case, the Supreme Court improperly determined that thedefendant's MBA degree did not enhance her future earnings capacity. An academic degree mayconstitute a marital asset subject to equitable distribution, even though the degree may notnecessarily confer the legal right to engage in a particular profession (see McGowan vMcGowan, 142 AD2d 355, 357 [1988]). While the MBA degree might not actually be aprerequisite to the defendant's employment, the record demonstrates that the degree substantiallyincreased her future earnings, and therefore the plaintiff is entitled to an equitable share of itsvalue, with the proper valuation date being the commencement of this action (see Murtha vMurtha, 264 AD2d 552 [1999]; seealso O'Donnell v O'Donnell, 41 AD3d 447, 449 [2007]). Based upon the testimony ofthe parties' experts, we find that the value of the defendants' MBA degree as of that date was$565,000 and find that the plaintiff was entitled to 25% thereof, for an award in the sum of$141,250.
The Supreme Court improperly calculated the credit awarded to the defendant for expensesthe plaintiff failed to pay towards the parties' former vacation home. The evidence at trialindicated that the plaintiff failed to pay $2,275 towards the amount the parties had agreed tocontribute towards the expenses associated with the property.
The Supreme Court improvidently exercised its discretion in awarding the plaintiff a credit inthe sum of only $6,941 towards the amount he expended on carrying charges related to themarital home after the commencement of the action. "Generally, it is the responsibility of bothparties to maintain the marital residence and keep it in good repair during the pendency of amatrimonial action" (Leeds v Leeds, 281 AD2d 601, 602 [2001]; Goddard vGoddard, 256 AD2d 545, 547 [1998]). After the defendant's voluntary departure from themarital residence, the plaintiff has resided there and made all payments towards the mortgage andtaxes. The plaintiff's undisputed testimony showed that, since the commencement of this action,he paid a total sum of $35,350 in mortgage and tax expenses. Under the circumstances of thiscase, he is entitled to recover half that amount, or $17,675 (see Palumbo v Palumbo, 10 AD3d 680, 682 [2004]; Freigang vFreigang, 256 AD2d 539, 540 [1998]).
The Supreme Court providently exercised its discretion in determining that the plaintiff wasentitled to an award of an attorney's fee (see Miklos v Miklos, 21 AD3d 353, 354 [2005]; DeJesus vDeJesus, 264 AD2d 436 [1999]). However, given the equities and circumstances of this case,the relative merits of [*3]the parties' positions, and theirrespective financial circumstances, an award of an attorney's fee to the plaintiff in the total sumof $50,000 is appropriate (see Domestic Relations Law § 237 [a], [d]; Timpone v Timpone, 28 AD3d646 [2006]).
The plaintiff's remaining contentions are without merit. Ritter, J.P., Florio, Miller and Dillon,JJ., concur.