| Kriftcher v Kriftcher |
| 2009 NY Slip Op 00650 [59 AD3d 392] |
| February 3, 2009 |
| Appellate Division, Second Department |
| Mary E. Kriftcher, Respondent-Appellant, v Eric L.Kriftcher, Appellant-Respondent. |
—[*1] Goldstein, Rubinton, Goldstein & DiFazio, P.C., Huntington, N.Y. (S. Russ DiFazio ofcounsel), for respondent-appellant.
In an action for a divorce and ancillary relief, the defendant husband appeals, as limited byhis brief, from so much of a judgment of the Supreme Court, Nassau County (Ross, J.), enteredMarch 13, 2007, as, after a nonjury trial, awarded the plaintiff wife the sum of $828,699.20 asher 40% share of his enhanced earning capacity and an attorney's fee in the sum of $30,000, andthe plaintiff wife cross-appeals, as limited by her brief, from so much of the same judgment asdeclined to award her maintenance, awarded her the sum of only $1,229.71 per week in childsupport, and failed to award her equitable distribution of the husband's bonus for the calendaryear 2005, which the husband received in 2006.
Ordered that the judgment is modified, on the law, on the facts, and in the exercise ofdiscretion, (1) by deleting the provision thereof awarding the wife the sum of $828,699.20 as her40% share of the husband's enhanced earning capacity and substituting therefor a provisionawarding the wife the sum of $207,175 as her 10% share of that asset, (2) by deleting theprovision thereof declining to award the wife maintenance and substituting therefor a provisionawarding the wife the sum of $1,000 per week in maintenance for 10 years, and (3) by adding aprovision thereto awarding the wife the sum of $55,575 as her equitable share of that portion ofthe husband's bonus for the calendar year 2005 which constituted marital property; as somodified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs ordisbursements.[*2]
The Supreme Court correctly concluded that theenhanced earnings resulting from the law degree and license obtained by the husband during themarriage are marital property subject to equitable distribution (see O'Brien v O'Brien, 66NY2d 576 [1985]). Nevertheless, " 'it is . . . incumbent upon the nontitled partyseeking a distributive share of such assets to demonstrate that they made a substantialcontribution to the titled party's acquisition of that marital asset [and], [w]here only modestcontributions are made by the nontitled spouse toward the other spouse's attainment of a degreeor professional license, and the attainment is more directly the result of the titled spouse's ownability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributedamount of that enhanced earning capacity' " (Higgins v Higgins, 50 AD3d 852, 853 [2008], quoting Broughv Brough, 285 AD2d 913, 914-915 [2001], and Farrell v Cleary-Farrell, 306 AD2d597, 599-600 [2003]; see Vora v Vora, 268 AD2d 470, 471 [2000]). Here, the wife'sminimal contributions to the husband's obtaining of his degree and license entitle her to a shareof only 10% in the enhanced earnings that have resulted (see Farrell v Cleary-Farrell,306 AD2d at 599-600).
The Supreme Court also erred in failing to distribute the husband's bonus for the calendaryear 2005, which he received in March 2006 and was in the gross sum of $360,000. Based uponthe unrebutted testimony of the forensic expert, the husband's effective income tax rate was38.25%, and, therefore, the net amount of the husband's bonus was the sum of $222,300. Sincethe divorce action was commenced on June 28, 2005, the marital portion of that asset is 50% ofits net value, or $111,150. Considering all of the statutory factors (see DomesticRelations Law § 236 [B] [5] [d]), the wife's equitable share of that marital asset is 50%, or$55,575.
"In determining the appropriate amount and duration of maintenance, the court is required toconsider, among other factors, the standard of living of the parties during the marriage and thepresent and future earning capacity of both parties (see Domestic Relations Law §236 [B] [6] [a])" (Haines v Haines,44 AD3d 901, 902 [2007] [citations omitted]). Here, although the wife earned a teachinglicense during the course of the marriage, she is, at present, primarily a homemaker, who worksonly part-time as a substitute teacher earning approximately $10,000 per year. In sharp contrast,the husband is an attorney making approximately $500,000 per year. Considering, among otherfactors, the standard of living of the parties during the marriage, the distribution of maritalproperty, the health of the parties, the present and future earning capacity of both parties, and theability of the party seeking maintenance to become self-supporting (see DomesticRelations Law § 236 [B] [6]; DiBlasi v DiBlasi, 48 AD3d 403 [2008]; Meccariello v Meccariello, 46 AD3d640, 641-642 [2007]), a maintenance award in the sum of $1,000 per week for 10 years isappropriate.
Contrary to the wife's contention, however, the Supreme Court providently exercised itsdiscretion in determining child support (cf. Kaplan v Kaplan, 21 AD3d 993 [2005]), and, contrary to thehusband's contention, the Supreme Court providently exercised its discretion in awarding anattorney's fee to the wife (see generally Clifford v Pierce, 214 AD2d 697, 698 [1995]).
The parties' remaining contentions are without merit. Spolzino, J.P., Ritter, Santucci andCarni, JJ., concur.