| Esposito-Shea v Shea |
| 2012 NY Slip Op 02555 [94 AD3d 1215] |
| April 5, 2012 |
| Appellate Division, Third Department |
| Victoria M. Esposito-Shea, Respondent-Appellant, v BryanP. Shea, Appellant-Respondent. |
—[*1] Cappello, Linden & Ladouceur, Potsdam (Michelle H. Ladouceur of counsel), forrespondent-appellant.
Kavanagh, J. Cross appeals from a judgment of the Supreme Court (Demarest, J.), enteredAugust 22, 2011 in St. Lawrence County, ordering, among other things, equitable distribution ofthe parties' marital property, upon a decision of the court.
After the parties married in 1991, defendant (hereinafter the husband) completed his studiesin psychology and obtained his Ph.D. degree. During the marriage, plaintiff (hereinafter thewife), in addition to having two children, attended law school and earned a law degree. After thisdivorce action was commenced in December 2006, the wife passed the bar exam and receivedher license to practice law. After a trial, Supreme Court, among other things, awarded thehusband $12,600—10% of the value it placed on the wife's law degree. The court alsodirected the husband to pay $1,200 a month in child support and decreed that he owed$17,363.51 in child support arrears dating back to when the divorce action was commenced. Inaddition, the court denied applications by the wife that she be awarded a distributive share of thehusband's Ph.D. degree, and by the husband that the wife be removed as custodian of bankaccounts held in trust for their children. The husband appeals and the wife cross-appeals.
The husband challenges Supreme Court's decision which, in effect, adopted the opinion[*2]offered by the wife's expert that placed the value on her lawdegree at $126,000. Specifically, he argues that since his expert's analysis was based in largemeasure on the wife's actual employment history, that analysis was more reliable, and the valueof $252,617.82 that his expert placed on the degree should have been adopted by the court.Initially, we note that the valuation of a professional degree or license is largely dependent uponexpert testimony, and it is for the trial court to "evaluate this testimony, assign to it [the] weightthe court believe[s] it deserve[s] and arrive at determinations that were supported by the credibleevidence introduced at trial" (Evans vEvans, 55 AD3d 1079, 1080 [2008]). Moreover, the value to be placed on such an assetis directly related to the extent it serves to enhance a party's capacity to earn a living (seeMcSparron v McSparron, 87 NY2d 275, 280 [1995]; O'Brien v O'Brien, 66 NY2d576, 588 [1985]; Sadaghiani vGhayoori, 83 AD3d 1309, 1310 [2011]; McAuliffe v McAuliffe, 70 AD3d 1129, 1132 [2010]; Brough vBrough, 285 AD2d 913, 914 [2001]). Here, in analyzing the value of the law degree, bothexperts compared what they believed the wife should have been able to earn during the relevanttime period with and without a law degree (see Grunfeld v Grunfeld, 94 NY2d 696,701-702 [2000]; McSparron v McSparron, 87 NY2d at 286) and then factored the wife'swork-life expectancy into the difference between these two figures to determine the extent towhich the degree served to enhance her earning capacity.
The principal difference in the evaluations offered by both experts revolved around whateach believed the wife's earning capacity would have been had she not obtained a law degree.The wife's expert focused on her actual employment history, as well as statistical data on what anindividual with a Bachelor's degree could have earned in the area where she lived during therelevant time period, and concluded that, without a law degree, the wife would have had anannual earning capacity of $44,500. The husband's expert arrived at a significantly lower figureprimarily because of the emphasis he placed on the wife's actual employment history in theperiod prior to obtaining her law degree. He assumed in his analysis that the wife would not haveentered the work force until 2006, or after she was admitted to practice law, and that she wouldhave continued to work as a clerk throughout this entire period, even though before attending lawschool she had obtained a Bachelor's degree and had been accepted into a doctoral program inRussian language and literature at Indiana University. He concluded, given this history and basedon these assumptions, that the wife's potential earning capacity, even with a Bachelor's degree,would not have exceeded $22,827 per year.
Supreme Court rejected the opinion of the husband's expert and concluded, as did the wife'sexpert, that any reliable analysis of the wife's potential earning capacity had to assume that if shehad not attended law school, she would have sought employment commensurate with hereducation and Bachelor's degree. In our view, Supreme Court's conclusions in this regard wererationally based, and its decision to adopt the opinion of the wife's expert as to the value of herlaw degree was supported by credible evidence introduced at trial (see Evans v Evans, 55AD3d at 1080).
The husband also maintains that he is entitled to more than a 10% distributive share of thelaw degree's value because the wife attended law school and earned her law degree while theywere married. In that regard, "[a] nontitled spouse seeking a portion of the enhanced earningpotential attributable to a professional license or degree of a titled spouse is required to establishthat a substantial contribution was made to the acquisition of the degree or license"(Sadaghiani v Ghayoori, 83 AD3d at 1310; see O'Brien v O'Brien, 66 NY2d at583-585; McAuliffe v McAuliffe, 70 AD3d at 1136; Evans v Evans, 55 AD3d at1080; Carman v Carman, 22 AD3d1004, 1005 [2005]; Farrell v Cleary-Farrell, 306 AD2d 597, 599 [2003]; Broughv Brough, 285 [*3]AD2d at 914). Moreover, "[w]here onlymodest contributions are made by the nontitled spouse toward the other spouse's attainment of adegree or professional license, and the attainment is more directly the result of the titled spouse'sown ability, tenacity, perseverance and hard work, it is appropriate for courts to limit thedistributed amount of that enhanced earning capacity" (Evans v Evans, 55 AD3d at1080-1081 [internal quotation marks and citations omitted]).
The husband maintains that he is entitled to a greater degree of the value of the wife's lawdegree because he was the family's primary wage earner during the parties' marriage and arrangedhis work schedule so that he could care for their children while the wife attended law school.However, these sacrifices represented " 'overall contributions to the marriage rather than anadditional effort to support [the wife] in obtaining [her] license' " (Evans v Evans, 55AD3 at 1081, quoting Carman v Carman, 22 AD3d at 1007). In addition, the wife's ownefforts in obtaining her law degree cannot be minimized. For example, she worked in part-timepositions throughout the marriage and was employed during the summer months while attendinglaw school. She earned merit scholarships and paid a significant part of her law school tuitionwith an inheritance she received during the marriage. Under the circumstances, it cannot be saidthat Supreme Court abused its discretion in limiting the husband's distributive share of the wife'slaw degree to 10% of its overall value (see Carman v Carman, 22 AD3d at 1007;Farrell v Cleary-Farrell, 306 AD2d at 599-600; Brough v Brough, 285 AD2d at916).
We reach a similar conclusion as to the wife's claim that she should share in the value of thehusband's Ph.D. degree. The husband had satisfied most of the requirements he needed to obtainthis degree before the parties married and paid for it while providing financial support for hisfamily. What assistance the wife may have provided in aiding him in acquiring this degree wassimply not so significant or unique as to warrant awarding her a distributive share of its value.
The husband also claims that Supreme Court erred by requiring him to pay child supportfrom the date the divorce action was commenced. Domestic Relations Law § 236 (B) (7)(a) states that an order of child support "shall, except as provided for herein, be effective as of thedate of the application therefor, and any retroactive amount of child support due shall be supportarrears/past due support and shall be paid in one sum or periodic sums, as the court shall direct,taking into account any amount of temporary child support which has been paid." Since the wife,in her complaint, sought child support, and temporary child support was sought during pendancyof action, the court appropriately found that the husband's obligation to pay child support beganon the date the action for divorce was commenced. We also note that Supreme Court took intoaccount payments the husband made for child support during the relevant time period incalculating the amount he owed in arrears (see Burns v Burns, 84 NY2d 369, 377 [1994];Ungar v Savett, 84 AD3d 1460,1461-1462 [2011]).
Finally, we see no reason to disturb Supreme Court's decision to allow the wife to remain ascustodian of the children's financial accounts. Her withdrawal of funds from an account to payfor a child's school expenses was authorized by Supreme Court, and other allegations made bythe husband that the wife mismanaged these accounts are not supported by credible evidence inthe record.
Spain, J.P., Malone Jr., McCarthy and Egan Jr., JJ., concur. Ordered that the judgment isaffirmed, without costs.