| Schwartz v Schwartz |
| 2009 NY Slip Op 08806 [67 AD3d 989] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Cheryl Schwartz, Appellant, v Martin Schwartz,Respondent. |
—[*1]
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, Nassau County (Driscoll, J.), entered March7, 2008, as, upon a decision of the same court (Stack, J.) dated October 24, 2007, made after anonjury trial, awarded her only 10% of the value of the defendant's enhanced earning capacity,awarded her only 50% in the net proceeds of the sale of the marital residence, directed the partiesto sell the personal property contained in the marital residence and to share equally in theproceeds in the event that they were unable to come to an agreement upon a division of theproperty, and directed that she be solely responsible for all the expenses of the marital residencefrom April 1, 2008, until the date the marital residence was sold.
Ordered that the judgment is affirmed insofar as appealed from, with costs.
A trial court is vested with broad discretion in making an equitable distribution of maritalproperty, and "unless it can be shown that the court improvidently exercised that discretion, itsdetermination should not be disturbed" (Saleh v Saleh, 40 AD3d 617, 617-618 [2007]; see Michaelessi v Michaelessi, 59AD3d 688, 689 [2009]; Tarone vTarone, 59 AD3d 434, 435 [2009]; Sebag v Sebag, 294 AD2d 560 [2002]).Moreover, where, as here, the determination as to equitable distribution has been made after anonjury trial, the evaluation of the credibility of the witness and the proffered items of evidenceis committed to the sound discretion of the trial court (see Ivani v Ivani, 303 AD2d 639,640 [2003]; L'Esperance v L'Esperance, 243 AD2d 446, 447 [1997]), and its assessmentof the credibility of witnesses and evidence is afforded great weight on appeal (see Jones-Bertrand v Bertrand, 59AD3d 391 [2009]; Grasso vGrasso, 47 AD3d 762, 764 [2008]).
Upon this record, it was not an improvident exercise of discretion for the Supreme Court toaward the plaintiff only 10% of the value of the enhanced earning capacity achieved by thedefendant through the securities licenses he obtained during the marriage. While the enhancedearnings from degrees and professional licenses attained during the marriage are subject toequitable distribution (see O'Brien v O'Brien, 66 NY2d 576 [1985]), " 'it is. . . incumbent upon the nontitled party seeking a distributive share of such assets todemonstrate that [he or she] made a substantial contribution to the titled party's acquisition ofthat marital asset' " (Higgins v Higgins,50 AD3d 852, 853 [2008], quoting Brough v Brough, 285 AD2d 913, 914[2001]). [*2]Moreover, "[w]here only modest contributions aremade by the nontitled spouse toward the other spouse's attainment of a degree or professionallicense, and the attainment is more directly the result of the titled spouse's own ability, tenacity,perseverance and hard work, it is appropriate for courts to limit the distributed amount of thatenhanced earning capacity" (Higgins v Higgins, 50 AD3d at 853; see Farrell vCleary-Farrell, 306 AD2d 597, 599-600 [2003]). Such was the case here.
Moreover, the record supports the Supreme Court's determination to award each party a 50%share in the net proceeds from the sale of the marital residence. "Property acquired during themarriage is presumed to be marital property" (Steinberg v Steinberg, 59 AD3d 702, 704 [2009]; see Embury v Embury, 49 AD3d802, 804 [2008]; Massimi vMassimi, 35 AD3d 400, 402 [2006]), and Domestic Relations Law § 236 (B) (1)(c) defines marital property as "all property acquired by either or both spouses during themarriage and before . . . the commencement of a matrimonial action, regardless ofthe form in which title is held." Although title to the marital residence was held by the parties astenants in common with a 75% interest to the plaintiff and a 25% interest to the defendant, thiswas not dispositive of the issue (see Angot v Angot, 273 AD2d 423, 424 [2000];Sorrell v Sorrell, 233 AD2d 387 [1996]; Seidman v Seidman, 226 AD2d 1011,1012 [1996]), particularly since the plaintiff testified that the title was held in this fashion in anattempt to shield it from the defendant's gambling debts. Moreover, the plaintiff failed todemonstrate that the deed to the marital residence constituted a valid, enforceable postnuptialagreement on the division of the marital residence (see O'Malley v O'Malley, 41 AD3d 449 [2007]). In addition, shefailed to demonstrate that her father's monetary contributions to the parties during the course ofthe marriage were anything other than gifts.
Similar considerations lead to the conclusion that the Supreme Court providently exercisedits discretion in dividing the personal property located within the marital residence equallybetween the parties. Although "there is no requirement that the distribution of each item ofmarital property be made on an equal basis" (Chalif v Chalif, 298 AD2d 348, 349[2002]), where both parties have made significant contributions during a marriage of longduration, a division of marital assets should be made as equal as possible (see Steinberg vSteinberg, 59 AD3d at 703; Griggsv Griggs, 44 AD3d 710, 713 [2007]; Adjmi v Adjmi, 8 AD3d 411, 412 [2004]).
Finally, it was not an improvident exercise of discretion for the Supreme Court to direct theplaintiff to pay all of the expenses of the marital residence from April 1, 2008, until the date itwas sold. Dillon, J.P., Florio, Balkin and Leventhal, JJ., concur.