| Evans v Evans |
| 2008 NY Slip Op 08048 [55 AD3d 1079] |
| October 23, 2008 |
| Appellate Division, Third Department |
| Angela J. Evans, Appellant, v Joseph M. Evans,Respondent. |
—[*1] Nicholas E. Tishler, Niskayuna, for respondent.
Kavanagh, J. Appeals (1) from a judgment of the Supreme Court (Teresi, J.), entered February26, 2007 in Albany County, ordering, among other things, equitable distribution of the parties' maritalproperty, upon a decision of the court, and (2) from an order of said court, entered July 30, 2007 inAlbany County, which, among other things, granted defendant's motion to resettle the judgment ofdivorce.
Plaintiff and defendant were married in 1985 and have two children (born in 1988 and 1992).After plaintiff commenced this divorce action, the parties reached a partial stipulation and proceeded totrial on the following unresolved issues: (1) the value/distribution of defendant's electrical engineeringdegree as a marital asset; (2) the amount to be paid by defendant for spousal maintenance; (3) childsupport; (4) the relative responsibility of the parties for the payment of college expenses for theirchildren; (5) the distribution of marital debt; and (6) what contribution, if any, defendant should maketowards plaintiff's counsel fees. Supreme Court ultimately issued findings of fact and conclusions of law,and executed a judgment of divorce. Upon motions made by both parties, Supreme Court revisited itsfindings and resettled the judgment. Plaintiff now appeals from the judgment of divorce and theresettlement order.
The principal issue raised by plaintiff on this appeal is that Supreme Court erred by determining thatdefendant's engineering degree did not enhance his earning capacity and that, even if it had, plaintiff didnot make a substantial contribution toward his efforts in obtaining it. [*2]Plaintiff claims that Supreme Court erred by deciding not to distribute toher an appropriate proportion of this marital asset.[FN1]We disagree.
While the parties agree that much of the work put forth by defendant to earn this degree occurredduring the marriage, plaintiff—to be entitled to a share of its value—must demonstrate thatthe degree enhanced defendant's earning capacity and that she, in a meaningful and substantial way,contributed to his efforts in obtaining it (seeCarman v Carman, 22 AD3d 1004, 1006 [2005]; Halaby v Halaby, 289 AD2d 657,659 [2001]; Brough v Brough, 285 AD2d 913, 914 [2001]). In the first instance, SupremeCourt found that "the value of [defendant's] enhanced earnings are zero as a result of having attained anengineering [d]egree, because the testimony established that he could have attained the position ofManager of Global Sourcing without his engineering [d]egree." In support of this conclusion,defendant's expert—a certified public accountant—concluded that whatever promotionsdefendant obtained during his employment were likely the product of his professional competence andwould have occurred "even if [defendant] had not obtained the [d]egree." While plaintiff presentedexpert testimony that reached a different conclusion, it was for Supreme Court to evaluate thistestimony, assign to it whatever weight the court believed it deserved and arrive at determinations thatwere supported by the credible evidence introduced at trial (see Spreitzer v Spreitzer, 40 AD3d 840, 841 [2007]). As such, there isno basis for us to conclude on this record that the court's resolution of this issue was an abuse of itsdiscretion (see Halaby v Halaby, 289 AD2d at 660; see also Holterman v Holterman, 3 NY3d 1, 8 [2004]).
Supreme Court also found that, even if defendant's degree enhanced his earning capacity, plaintifffailed to demonstrate that she made any meaningful contributions that assisted defendant in earning it. "'Where only modest contributions are made by the nontitled spouse toward the other spouse'sattainment of a degree or professional license, and the attainment is more directly the result of the titledspouse's own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit thedistributed amount of that enhanced earning capacity' " (Carman v Carman, 22 AD3d at1006-1007, quoting Farrell v Cleary-Farrell, 306 AD2d 597, 599 [2003]). Plaintiff'scontributions, while significant, "can be seen more as overall contributions to the marriage rather than anadditional effort to support defendant in obtaining his license" (Carman v Carman, 22 AD3d at1007). Therefore, again deferring to the considerable discretion accorded to Supreme Court indecisions of this type, we find that no error exists in the court's conclusion that plaintiff is not entitled toshare in the value of this degree (see Gandhi v Gandhi, 283 AD2d 782, 784 [2001]).
We are also unpersuaded by plaintiff's challenge to Supreme Court's distribution of the maritaldebt. Defendant argued that approximately $40,500 of what was owed by the parties was, in fact,incurred to pay for household expenses and, therefore, should be classified as marital debt and sharedequally by the parties. Plaintiff countered that most of this debt came from expenditures that were madeby defendant on his credit cards and, therefore, are his sole responsibility. While the credit cards uponwhich this debt is based were solely in defendant's name, and the charges on them were made in eachinstance by defendant, he testified that each charge made was to pay for marital and work-relatedexpenses and were supplemented by two loans that he took against his 401(k) account to pay for otherhousehold expenditures. Plaintiff [*3]offered no evidence disputingdefendant's testimony on this issue and, again, the court's credibility determinations in this regard mustbe accorded great deference (see Gulbin vMoss-Gulbin, 45 AD3d 1230, 1232 [2007], lv denied 10 NY3d 705 [2008]).Considering the distribution of the parties' assets, the award for maintenance and the amount to be paidfor child support, as well as the parties' respective financial situation, we cannot conclude that thedistribution of this debt was an abuse of the court's discretion, or was, in any way, improper (seeid.; Liepman v Liepman, 279 AD2d 686, 689 [2001]).[FN2]
We also reject plaintiff's challenge to Supreme Court's findings regarding child support. In thisregard, Supreme Court specifically rejected defendant's computation of child support and, while it didnot accept plaintiff's calculation of defendant's annual income, the court did adopt, in full, plaintiff'sproposed findings as to defendant's child support obligation. Accordingly, we see no reason to disturbthis finding.[FN3]
We also find no discernable error in Supreme Court's decision that defendant must contribute$15,835 towards the payment of counsel fees incurred by plaintiff and the court's failure to award thefull amount requested by plaintiff. In its decision, Supreme Court determined that an appropriate figurefor the counsel fees incurred by plaintiff should be $31,669—not the $54,676 asrequested—and then directed defendant to pay half of that amount. After considering therelevant factors, we see no reason to disturb this award (see Gulbin v Moss-Gulbin, 45 AD3dat 1232; Farrell v Cleary-Farrell, 306 AD2d at 600).
Plaintiff also claims that Supreme Court erred in its calculation of maintenance because, in arrivingat its final figure, the court appeared to reduce the amount of defendant's annual pretax income by aportion of the value it placed on his engineering degree as a marital asset, yet, [*4]in its final decision, failed to award plaintiff any part of the value of thatdegree. In that regard, Supreme Court found that "[i]n an effort to avoid duplication between anymaintenance award and distribution as property of the marital portion of [defendant's] [d]egree I findthat the total pre-tax income available from him for maintenance is $77,520.00." The court also foundthat "[t]here is a permanent disparity in the earnings and earning potential of the parties here in favor of[defendant], even after taking into account any [Grunfeld] duplication analysis."
Considering the fact that Supreme Court did not distribute any portion of the value of defendant'sdegree to plaintiff as a marital asset, it erred by calculating maintenance based upon an annual incomefigure of $77,520, after a Grunfeld duplication analysis. Rather, the award for maintenanceshould have been, in part, based upon defendant's annual income of $93,500. Therefore, while theamount of maintenance is generally left to the trial court's discretion (see Domestic RelationsLaw § 236 [B] [6] [a], [b]; Fosdick vFosdick, 46 AD3d 1138, 1140 [2007]), the basis upon which Supreme Court issued itsmaintenance award was improper and, therefore, it must be modified (see Schwalb v Schwalb, 50 AD3d1206, 1209 [2008]).
As noted by Supreme Court, this was a long-term marriage with two children, one of whom hasspecial needs. Plaintiff's annual income as a self-employed hairstylist was $17,047, as opposed todefendant's annual salary of $93,500, and a permanent disparity, as noted by Supreme Court, exists inthe parties' respective earning potential. Given that the parties were married for 19 years, andconsidering their ages, the present state of their health, their incomes and earning capacity disparity, theduration and amount of maintenance already paid to plaintiff during the pendency of this proceeding, theequitable distribution of the parties' assets and debt, plaintiff's ability to become self-supporting, and thestatus of the children (see Domestic Relations Law § 236 [B] [6] [a]), in particular thedaughter's special needs, we find that defendant should pay maintenance to plaintiff in the amount of$1,000 per month until plaintiff is eligible to receive Social Security benefits.
Moreover, we agree that defendant should have been directed to contribute towards the collegeexpenses incurred on behalf of both children. As pointed out in the motions to resettle the judgmentbrought by both parties, Supreme Court initially found that there was "an expectation of highereducation in the family" and ordered the parties to equally share any future college expenses. It alsomade a contrary finding and specifically determined that "[t]he request for payment of college expensesis denied." Absent an agreement between the parties, an award of college expenses is appropriate"[w]here the court determines, having regard for the circumstances of the case and of the respectiveparties and in the best interests of the child, and as justice requires, that the present or future provisionof post-secondary, private, special, or enriched education for the child is appropriate" (DomesticRelations Law § 240 [1-b] [c] [7]; see Brough v Brough, 285 AD2d at 917). Factors tobe considered "include the child's academic ability, the parents' educational background and the abilityto pay" (Matter of Naylor v Galster, 48AD3d 951, 953 [2008]). Here, considering that plaintiff's daughter is currently attending college,as well as the time that defendant devoted during the marriage toward earning his engineering degree,we find that an expectation existed among the parties that the children would attend college, and thatdefendant should share equally in the payment of such expenses.
Cardona, P.J., Mercure, Peters and Carpinello, JJ., concur. Ordered that the judgment and orderare modified, on the law and the facts, without costs, by (1) awarding defendant maintenance in theamount of $1,000 per month until she becomes eligible for Social Security and (2) directing the partiesto equally share their children's college expenses, and, as so modified, affirmed.
Footnote 1: Each side agrees that approximately68% of the value of this degree was earned during the marriage and is a marital asset.
Footnote 2: Supreme Court's initial findings onthis issue were factually inconsistent in that it originally found defendant to be solely responsible for thecredit card debt, both 401(k) loans, the home equity loan and the loan received from his sister. At thesame time, the court also found that the first 401(k) loan, the American Express credit card debt andrevolving credit card debt were marital and, as such, should be shared equally by the parties. Bothparties moved to resettle and, in response, the court resolved these inconsistencies and found that thedebts in question were marital, to be shared equally by the parties. In this regard, we find the initialinconsistency to be merely an error which, upon reflection, the court sought to resolve and ameliorate.
Footnote 3: We do agree with plaintiff thatSupreme Court's finding with respect to child support was, in places, inconsistent; it found in oneinstance that it was appropriate to impute income to plaintiff but, in another instance, found itinappropriate to do so. However, inasmuch as defendant does not challenge the child support award,and these inconsistencies actually worked to his detriment, plaintiff's challenge to this award is simplynot persuasive.