Conteh v. Conteh
| Decision Date | 27 August 1982 |
| Citation | 117 Misc.2d 42,457 N.Y.S.2d 363 |
| Parties | Princess Tejan CONTEH, Plaintiff, v. Abib CONTEH, Defendant. |
| Court | New York Supreme Court |
The court's decision in this matter follows a trial at which defendant did not oppose either plaintiff's application for a divorce based on abandonment or her application for custody of the young child of the parties.
The contested issues in this action are financial ones, involving the wife's requests for a distribution of marital property, a distributive award, maintenance, child support. Defendant husband, a physician whose approximately $50,000 annual income is 25 times the $2,000 per annum he earned as a Good Humor salesman in 1972, the year before he married plaintiff, now asserts that there is no marital property to distribute and that plaintiff is entitled neither to a distributive award nor to maintenance.
The Appellate Division in this department recently held, in Lesman v. Lesman, 88 A.D.2d 153, 452 N.Y.S.2d 935 (4th Dept.1982), that a medical degree or license is not marital property subject to equitable distribution.
Not mentioned in Lesman are the numerous new Domestic Relations Law provisions relating to distributive awards. These provisions appear particularly significant given New York's enactment of a statute so clearly intended to recognize that marriage is also an economic partnership. 1 The distributive award, a significant part of our deliberately flexible statute, 2 appears fully consonant with a remedy long known to the law of partnership: the post-dissolution return of a partner's advances or contributions, from partnership property, if it is sufficient, and if not, by a money judgment against other partners individually. See Partnership Law § 71; Uniform Partnership Act § 40 (rules for distribution). Under these provisions, a partner's individual liability does not become a distributable "asset of the partnership," for the purpose of repaying advances and contributions, unless the "partnership property" at the time of dissolution is insufficient to repay them.
Since the distributive award provisions of our new Equitable Distribution Law (EDL) expressly provide that a distributive award may be used not only to facilitate or to effectuate a distribution of marital property, but alternatively to supplement a distribution of marital property (Domestic Relations Law § 236 Part B[1.][b.], [5.][e.] ), consideration of such relief appears warranted where, though a spouse's financial contribution to the education of the other has been substantial, 3 the marital property available to distribute is not. To allow a discretionary distributive award under such circumstances, as a return of advances or contributions made by a spouse to further what were thought to be common future goals (cf. 45 Alb.L.Rev. 483, 499 [1981] ) appears fully consistent with the new Domestic Relations Law distributive award provisions.
It is difficult to conceive that any court applying the EDL 4 would require a wife who co-signed loans for her husband's medical school or living expenses to repay such loans on his behalf as part of a property distribution. Where there is no marital property to distribute and the wife is not entitled to maintenance, a distributive award can ensure that the wife who invests her cash rather than her credit to further the same common purpose is treated no more harshly.
Numerous other states, even without express distributive award statutes, have granted relief based on the amount of the wife's contribution to the husband's education. See, e.g., Lundberg v. Lundberg, 107 Wis.2d 1, 318 N.W.2d 918 (1982), overruling DeWitt v. DeWitt, 98 Wis.2d 44, 296 N.W.2d 761 (Wis.App.1980); Inman v. Inman (Inman II), 8 F.L.R. 2329 (Ky.App. March 12, 1982), overruling in part Inman v. Inman (Inman I), 578 S.W.2d 266 (Ky.App.1979); Moss v. Moss, 639 S.W.2d 370 (Ky.App.1982); DeLa Rosa v. DeLa Rosa, 309 N.W.2d 755 (Minn.1981); Hubbard v. Hubbard, 603 P.2d 747 (Okl.1979), overruling in part Colvert v. Colvert, 568 P.2d 623 (Okl.1977); In re Marriage of Horstman, 263 N.W.2d 885 (Iowa 1978); Moss v. Moss, 80 Mich.App. 693, 264 N.W.2d 97 (Mich.App.), lv. to appeal den., 402 Mich. 946 (1978); Daniels v. Daniels, 20 Ohio Op.2d 458, 185 N.E.2d 773 (Ohio App., Montgomery Co. 1961). See also Ind.Code § 31-1-11.5-11(c), overruling Wilcox v. Wilcox, 173 Ind.App. 661, 365 N.E.2d 792 (1st Dist.1977). 5
Having considered the discretionary distributive award provisions of Domestic Relations Law § 236 Part B(5.) (e.), the court finds that no such award is warranted in the instant case because, on the facts before this court, plaintiff is entitled to rehabilitative maintenance.
1 The legislative history of the EDL, from its...
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