| Mahoney-Buntzman v Buntzman |
| 2008 NY Slip Op 04476 [51 AD3d 732] |
| May 13, 2008 |
| Appellate Division, Second Department |
| Patricia A. Mahoney-Buntzman,Appellant-Respondent, v Arol I. Buntzman,Respondent-Appellant. |
—[*1] Collier, Halpern, Newberg, Nolletti & Bock, LLP, White Plains, N.Y. (Philip M. Halpern,James J. Nolletti, and Efrem Z. Fischer of counsel), for respondent-appellant.
In an action for a divorce and ancillary relief, the plaintiff appeals, as limited by her brief,from so much of a judgment of the Supreme Court, Westchester County (Giacomo, J.), datedNovember 16, 2006, as, after a nonjury trial, fixed her distributive award at the sum of only$2,467,151.43, awarded her only 35% of the value of certain shares of stock and stock optionsissued to the defendant by his employer, failed to award her a 50% credit with respect to separateproperty debts of the defendant, established the date of commencement of the action as thevaluation date for the defendant's RBC Dain Rauscher investment account, awarded herdurational rather than life time maintenance in the monthly amount of only $2,500 for only 15months, and failed to direct the defendant to continue paying the parties' children's college tuitionand expenses until they reached 21 years old, and the defendant cross-appeals from statedportions of the same judgment which, inter alia, distributed $1,800,000 received by him duringthe parties' marriage as marital property, and valued and distributed certain shares and stockoptions issued to him by his employer.
Ordered that the judgment is modified, on the law, the facts, and in the exercise of discretion,(1) by increasing the plaintiff's distributive award from the sum of $2,467,151.43 to the [*2]sum of $2,524,005.40, and (2) by adding a provision theretodirecting the defendant to pay for the parties' children's college tuition and expenses until theyreach the age of 21; as so modified, the judgment is affirmed insofar as appealed andcross-appealed from, with costs to the plaintiff.
During the parties' marriage, the defendant took out a student loan in the amount of$48,162.90 to pay for a doctoral degree in education, which was satisfied with marital funds. Theplaintiff contends that the trial court erred in failing to award her a 50% credit with respect to thestudent loan. We agree. The defendant's expert testified that the doctoral degree earned by thedefendant during the marriage did not enhance his earnings, and thus, provided no benefit to themarriage, and there was no distributive award of the value of the doctorate degree to the plaintiffin light of its zero enhanced earning capacity value. The student loan debt was incurred to satisfythe defendant's separate interest and therefore is his own separate obligation (see Corless v Corless, 18 AD3d493, 494 [2005]; Helen A.S. v Werner R.S., 166 AD2d 515, 517 [1990]).Accordingly, the trial court erred in failing to award the plaintiff a 50% credit, or $24,081.45, forthe student loan debt incurred by the defendant during the marriage to attain this degree (seeBasos v Basos, 243 AD2d 932, 932-933 [1997]; Jonas v Jonas, 241 AD2d 839, 840[1997]).
The plaintiff also contends that the trial court erred in not crediting her with 50% of thedefendant's premarital debts paid with marital funds during the marriage, to wit: maintenancepaid to the defendant's first wife in the total amount of $58,545, and $7,000 paid in 1998 as asettlement of a loan for a boat purchased by the defendant before the marriage but surrendered tothe bank in 1993 prior to the marriage for nonpayment of the boat loan. We agree. Thedefendant's maintenance obligation to his first wife and the boat loan constituted debts incurredby him prior to the parties' marriage and are therefore solely his responsibility (see Dewell vDewell, 288 AD2d 252 [2001]; Micha v Micha, 213 AD2d 956, 957-958 [1995]).Accordingly, the trial court erred in failing to award the plaintiff additional credits of $29,272.50as to the maintenance payments to the defendant's first wife and $3,500 as to the boat loan.
We also agree with the plaintiff's contention that the trial court improvidently exercised itsdiscretion in declining to direct that the defendant pay the parties' children's college tuition andexpenses until they reach the age of 21 upon finding that the children had sufficient resources oftheir own to pay for their college education from trust funds given to them by their paternalgrandfather. In view of the defendant's own significant financial resources in contrast to theplaintiff's limited financial resources, and the defendant's own testimony that the parties agreednot to use the children's trust funds to pay for their college tuition and expenses, as well as givingdue consideration to the factors listed in Domestic Relations Law § 240 (1-b) (c) (7), thedefendant should pay for the childrens' college tuition and expenses until they reach the age of 21(see Brough v Brough, 285 AD2d 913, 916-917 [2001]; Finkelstein v Finkelstein,268 AD2d 273, 274-275; Guiry v Guiry, 159 AD2d 556, 556-557 [1990];Connolly v Connolly, 83 AD2d 136 [1981]).
The parties' remaining contentions are without merit. Mastro, J.P., Ritter, Carni andMcCarthy, JJ., concur. [See 13 Misc 3d 1216(A), 2006 NY Slip Op 51852(U) (2006).]