| Rodriguez v Rodriguez |
| 2010 NY Slip Op 00944 [70 AD3d 799] |
| February 9, 2010 |
| Appellate Division, Second Department |
| Josefa Trinidad Rodriguez, Respondent, v AlvaroRodriguez, Appellant. |
—[*1] Bamundo, Zwal & Schermerhorn, LLP, New York, N.Y. (Steven Bamundo, James Caffrey,and The Breakstone Law Firm, P.C. [Jay L.T. Breakstone], of counsel), for respondent.
In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief,from stated portions of a judgment of the Supreme Court, Richmond County (Panepinto, J.),dated September 26, 2008, which, upon a decision of the same court dated January 7, 2008,made after a nonjury trial, inter alia, awarded the plaintiff the sum of $4,000 per month inmaintenance until the earlier of the death of either party or the plaintiff's remarriage, 30% of thedefendant's enhanced earnings derived from his medical license, and 25% of the defendant'smedical practice, declined to reduce the plaintiff's maintenance award by any sums she mayreceive from Social Security, determined that only he was responsible for the mortgage debt onthe parties' apartment in Seville, Spain, directed that he shall be 100% responsible for the MBNAPlatinum Plus credit card debt, that $75,000 of the parties' outstanding home equity loan must bepaid from his share of the proceeds of the sale of the marital residence, and that, among otherthings, he shall obtain an updated appraisal of the parties' duplex condominium in Bogota,Colombia, and awarded him only 25% of the wife's Banco Popular savings account.
Ordered that judgment is modified, on the law, on the facts, and in the exercise of discretion,(1) by deleting the fifth decretal paragraph thereof awarding the plaintiff the sum of $4,000 permonth in nondurational maintenance, (2) by deleting the thirteenth decretal paragraph thereofawarding the plaintiff 30% of the defendant's enhanced earnings derived from his medicallicense and 25% of the defendant's medical practice, and (3) by deleting the portion of thefourteenth decretal paragraph thereof directing that the defendant shall be 100% responsible forthe MBNA Platinum Plus credit card debt, and substituting therefor a provision that thedefendant and the plaintiff shall each be 50% responsible for the MBNA Platinum Plus creditcard debt; as so modified, the judgment is affirmed insofar as appealed from, without costs ordisbursements, and the matter is remitted to the Supreme Court, Richmond County, for furtherproceedings consistent herewith, and for the entry of an appropriate amended judgmentthereafter; and it is further,
Ordered that in the interim, the defendant is to continue to pay the plaintiff maintenance inthe sum of $4,000 per month, with any overpayment to be credited against future payments afterentry of the amended judgment.
The Supreme Court's determination that the plaintiff is entitled to an interest in thedefendant's enhanced earning ability was based upon her testimony that she cared for the parties'children, [*2]provided some economic support, and, to an extent,sacrificed her education while the defendant pursued his medical license (see Vora vVora, 268 AD2d 470, 471 [2000]; Vainchenker v Vainchenker, 242 AD2d 620, 621[1997]). However, the Supreme Court erred in failing to apply an appropriate "coverturefraction" to the enhanced earning valuation to account for the portion of the husband's medicaleducation and training completed before the marriage (Grunfeld v Grunfeld, 94 NY2d696, 701 [2000]; see Jayaram vJayaram, 62 AD3d 951, 953 [2009]; Vora v Vora, 268 AD2d at 471;Vainchenker v Vainchenker, 242 AD2d at 621). The defendant received a medicaldegree in Spain from a combined undergraduate/graduate medical school program, and there isno evidence, contrary to the Supreme Court's finding, that the specific course of study heundertook prior to the marriage would only have resulted in the equivalent of an undergraduatedegree in the United States. Rather, we find that the defendant completed one half of his medicaltraining prior to the marriage, and remit the matter to the Supreme Court, Richmond County, fora recalculation of the amount to be awarded to the plaintiff as her share of the defendant'senhanced earnings, consistent with this finding.
Moreover, we agree with the defendant that the Supreme Court impermissibly engaged in the"double counting" of income in valuing his medical practice, which was equitably distributed asmarital property, and in awarding maintenance to the plaintiff (Grunfeld v Grunfeld, 94NY2d at 702; Murphy v Murphy, 6AD3d 678, 679 [2004]). The valuation of the defendant's business involved calculating thedefendant's projected future excess earnings. Thus, in valuing and distributing the value of thedefendant's business, the Supreme Court converted a certain amount of the defendant's projectedfuture income stream into an asset. However, the Supreme Court also calculated the amount ofmaintenance to which the plaintiff was entitled based on the defendant's total income, whichnecessarily included the excess earnings produced by his business. This was error. Since theSupreme Court has discretion in the manner in which it is to avoid such double counting ofincome (see Grunfeld v Grunfeld, 94 NY2d at 705-706), we remit the matter to theSupreme Court, Richmond County, to recalculate the maintenance and cash distributive awards.
To the extent that the defendant challenges the duration of the maintenance award, theduration of maintenance is a matter committed to the sound discretion of the trial court, andevery case must be determined on its unique facts (see Sperling v Sperling, 165 AD2d338 [1991]). Considering, among other factors, the standard of living of the parties during themarriage, the distribution of marital property, the age and health of the parties, the present andfuture earning capacity of both parties, the ability of the party seeking maintenance to becomeself-supporting, and the fact that the plaintiff was the primary homemaker and caregiver for theparties' children during their lengthy marriage (see Domestic Relations Law § 236[B] [6]; Friedman v Friedman, 309 AD2d 830, 831 [2003]; Liadis v Liadis, 207AD2d 331, 331-332 [1994]; Loeb v Loeb, 186 AD2d 174, 175 [1992]; Sperling vSperling, 165 AD2d at 342), the Supreme Court providently exercised its discretion inawarding the 69-year-old plaintiff nondurational maintenance. Moreover, the Supreme Courtproperly declined to consider the plaintiff's eligibility for Social Security when setting themaintenance award, as the defendant failed to bring proof of her eligibility, or relevant lawspertaining to her eligibility, to the court's attention (cf. CPLR 4511 [b]; Shepardson vTown of Schodack, 83 NY2d 894 [1994]).
The Supreme Court erred in determining that the plaintiff was not responsible for a portionof the debt incurred for the repayment of certain tax assessments on the family business,Lembron Gourmet, Ltd., during the marriage. "It is well settled that expenses incurred prior tothe commencement of a divorce action constitute marital debt and should be equally shared bythe parties" (Bogdan v Bogdan, 260 AD2d 521, 522 [1999]; see Levine v Levine, 24 AD3d625, 625-626 [2005]). As the record demonstrates that the defendant was only repaid amaximum of $85,000 of the $135,000 he provided for the tax assessments, the plaintiff isresponsible for one half of the remainder of the $50,000 in debt (see Liepman vLiepman, 279 AD2d 686, 689 [2001]). As the defendant's MBNA Platinum Plus credit carddebt amounts to approximately $50,000, the Supreme Court should have apportioned 50% of thiscredit card debt to each party.
While the parties agreed to the appraisal of their duplex condominium in Bogota, Colombiain 2004, the Supreme Court recognized that the value of that property could easily haveincreased since that date, and reached an appropriate solution by directing, inter alia, that theproperty be reappraised. However, since the defendant is correct in his contention that the partiesshould be given an opportunity to review the new appraisal and examine the appraiser, in theevent that a new appraisal is obtained, we remit the matter of the valuation of that property to theSupreme Court, Richmond County, for a new [*3]hearing anddetermination (see Samuelsen v Samuelsen, 124 AD2d 650, 652 [1986]).
The husband's remaining contentions are without merit. Skelos, J.P., Dickerson, Lott andRoman, JJ., concur.