Block v. Block

• Decision Date: 11 February 1999
• Citation: 258 A.D. 2d . 324,685 N.Y.S.2d 443
• Parties: 1999 N.Y. Slip Op. 1353 Caryn J. BLOCK, Plaintiff-Respondent-Appellant, v. Jeffrey A. BLOCK, Defendant-Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 443

685 N.Y.S.2d 443

1999 N.Y. Slip Op. 1353

Caryn J. BLOCK, Plaintiff-Respondent-Appellant, v. Jeffrey A. BLOCK, Defendant-Appellant-Respondent.

Supreme Court, Appellate Division First Department.

Feb. 11, 1999.

David H. Pikus, for Plaintiff-Respondent-Appellant.

Joel R. Brandes, for Defendant-Appellant-Respondent.

WILLIAMS, J.P., WALLACH, ANDRIAS and SAXE, JJ.

MEMORANDUM DECISION.

Order and judgment (one paper), Supreme Court, New York County (Lori Sattler, Special Referee), entered on or about June 15, 1998, which directed defendant to pay $2500 per month in maintenance until the parties' youngest child enrolls in kindergarten and $2145 per month in child support, and to maintain health insurance for the parties' children and pay their unreimbursed medical, dental and optical expenses; declared that plaintiff, not defendant, could claim the children as tax exemptions; distributed to plaintiff 50% of the value of defendant's law practice valued as of the commencement of the action except for cases in progress, 25% of the fees to be earned by defendant in contingency fee cases he commenced prior to the commencement of the action, and 50% of the proceeds to be realized on the sale of the marital home; directed defendant to pay pendente lite arrears of $7668.31, a home equity loan in the amount of $26,859.65 plus interest, $2850 for plaintiff's psychologist, reimbursements of $821.46 for payments made on his behalf, and $60,000 of plaintiff's legal fees; declared that plaintiff would effect the sale of the marital home; directed that defendant continue making home mortgage and tax payments and that he be credited for such payments from the proceeds of the sale of the home; and referred the issue of custody and visitation of the parties' children to the Family Court, which order and judgment brings up for review an order of the same court (Walter Tolub, J.), entered on or about January 12, 1998, which directed the Special Referee to consider as marital property defendant's contingency fee cases commenced prior to the commencement of this action, unanimously modified, on the law and the facts, to vacate the directives that defendant pay $26,859.65 plus interest for the home equity loan incurred by plaintiff and $2850 for her psychologist; to provide that maintenance payments are not to be deducted from the calculation of defendant's child support obligations, and that he, not plaintiff, is entitled to claim both children as tax exemptions; to provide that the value of the contingency fee cases commenced during the marriage is to be determined by comparing the percentage of time spent by defendant during the marriage with the total time he spent in reaching each ultimate recovery; and the case is remanded for consideration of equitable distribution based on that methodology, along with consideration of defendant's application to enter the marital home to retrieve personal property; and the order and judgment otherwise affirmed, all without costs.

Justice Tolub's January 12, 1998 order merely determined, after defendant had an opportunity to address the issue, a question of law appropriate for consideration before trial (see, DeJesus v. DeJesus, 90 N.Y.2d 643, 647, 665 N.Y.S.2d 36, 687 N.E.2d 1319), namely, that the contingency fee cases defendant had commenced prior to the commencement of the instant divorce action are part of his firm's assets or value, and therefore constitute marital property (see, Litman v. Litman, 123 A.D.2d 310, 312, 506 N.Y.S.2d 345; Garrett v. Garrett, 140 Ariz. 564, 683 P.2d 1166, 1169 [Ariz. Ct. App.]; In re Marriage of Vogt, 773 P.2d 631, 632 [Colo. Ct. App.]; see also, Burns v. Burns, 84 N.Y.2d 369, 376, 618 N.Y.S.2d 761, 643 N.E.2d 80).

Although the parties and the Special Referee agreed that it would be prohibitively costly and time consuming, as well as speculative, to value the contingent cases based on the files, nevertheless, it was an improvident exercise of discretion to assign an arbitrary 25% of the net fees to be recovered as plaintiff's equitable share, the proper method being to compare the percentage of time spent by defendant during the marriage with the total time he spent in reaching each...