Di Caprio v. Di Caprio

• Decision Date: 22 June 1990
• Citation: 556 N.Y.S.2d 1011,162 A.D.2d 944
• Parties: Rose N. DI CAPRIO, Appellant-Respondent, v. Gordon B. DI CAPRIO, Respondent-Appellant.
• Court: New York Supreme Court — Appellate Division

Page 1011

556 N.Y.S.2d 1011

162 A.D.2d 944

Rose N. DI CAPRIO, Appellant-Respondent, v. Gordon B. DI CAPRIO, Respondent-Appellant.

Supreme Court, Appellate Division,

Fourth Department.

June 22, 1990.

John A. Cirando, Syracuse, for appellant-respondent.

Rosemary E. Bucci, Baldwinsville, for respondent-appellant.

Before DILLON, P.J., and DOERR, GREEN, LAWTON and LOWERY, JJ.

MEMORANDUM:

Plaintiff wife was granted a divorce on the ground of cruel and inhuman treatment (Domestic Relations Law § 170[1]. The parties stipulated to resolution of several issues, including custody of a minor child, but asked the court to determine maintenance, child support, and issues of equitable distribution. Defendant holds a master's degree and a permanent certificate in school administration.

After a hearing, plaintiff was awarded maintenance of $425 per week, child support of $50 per week, exclusive use of the marital residence, and all of the household furnishings. The court determined that defendant's degree and certificate are marital property, but declined to award plaintiff a share in their value. The court reasoned that the degree and certificate served to produce higher income for defendant which "improved the standard of living for the family, allowed the acquisition of the other marital assets to be accomplished, and increased the Plaintiff's share of the Defendant's pension." The court found it appropriate, therefore, to make a generous award of maintenance to plaintiff but did not separately distribute the asset.

Defendant appeals from that part of the judgment that awarded permanent maintenance and the home furnishings to plaintiff, and declared that his master's degree and permanent certificate are marital property. On plaintiff's cross appeal she contends that the court erred in failing to award her a distributive share of the value of the degree and certificate.

Supreme Court properly determined that defendant's master's degree and permanent certificate are marital property because they are items of economic value that were acquired during the marriage (see, O'Brien v. O'Brien, 66 N.Y.2d 576, 498 N.Y.S.2d 743, 489 N.E.2d 712; McGowan v. McGowan, 142 A.D.2d 355, 358, 535 N.Y.S.2d 990). The court erred, however, in failing to award plaintiff a distributive share of the value of the degree and certificate. Domestic Relations Law § 236(B)(5)(c) provides that marital property "shall be distributed equitably between the parties." Where an equitable distribution "is appropriate but would be impractical or burdensome * * * the court in lieu of such equitable distribution shall make a distributive award in order to achieve equity between the parties" (Domestic Relations Law § 236[B][5][e].

Here, the method employed by plaintiff's expert to determine the enhancement of defendant's earning power resulting from the degree and certificate properly took into account that the degree and certificate had merged into the value of defendant's professional career (see, Finocchio v. Finocchio, 162 A.D.2d 1044, 556 N.Y.S.2d 1007 [decided herewith]; McGowan v. McGowan, 142 A.D.2d 355, 359, 535 N.Y.S.2d 990 [footnote]; Marcus v. Marcus, 137 A.D.2d 131, 139, 525 N.Y.S.2d 238). His projections of defendant's future earnings were properly based upon defendant's actual earnings. He compared the salary that defendant actually earned as an administrator with that which he would have earned had he remained as a teacher, reduced the difference to reflect taxes paid, multiplied the result by the number of years remaining in defendant's working life, and then discounted the total to present value. The expert concluded that the discounted net present value of defendant's earning enhancement as a result of the degree and certificate is $77,950. In our view, that valuation is realistic and reasonable.

In determining plaintiff's equitable share of these assets, we have considered the relevant statutory factors (see, Domestic Relations Law § 236[B][5][d]. Specifically, we note that this was a 29-year marriage (Domestic Relations Law § 236[B][5][d][2], that plaintiff was awarded generous maintenance (Domestic Relations Law § 236[B][5][d][5], that the assets in question are nonliquid in character (Domestic Relations Law § 236[B][5][d][7], and that it is not economically feasible to award plaintiff an actual share of the degree and certificate (Domestic Relations Law § 236[B][5][d][9]. Additionally, it cannot be questioned on this record that defendant expended unusual personal and economic efforts to achieve the assets. Plaintiff's contributions to their acquisition were noneconomic as spouse, mother and homemaker (Domestic Relations Law § 236[B][5][d][6]. Accordingly, we conclude that plaintiff is entitled to 25% of the value of the degree and certificate (see, Arvantides v. Arvantides, 106 A.D.2d 853, 483 N.Y.S.2d 550, affd., 64 N.Y.2d 1033, 489 N.Y.S.2d 58, 478 N.E.2d 199) and we direct a distributive award to plaintiff in the sum of $19,487.50 to be paid by defendant in four annual installments of $4,000 and a final installment of $3,487.50. Plaintiff's counsel conceded at oral argument that upon an award to plaintiff of a distributive share of the value of the degree and certificate, a reduction of the award of maintenance would be warranted. We agree with that view. On consideration of the reasonable needs and resources of the parties, we find that the award of maintenance to plaintiff should be reduced to $350 per week. We also find that the distribution of the remaining assets was, in all respects, proper.

All concur, except LAWTON, J., who dissents and votes to affirm the judgment, in the following Memorandum:

I respectfully dissent. In O'Brien v. O'Brien, 66 N.Y.2d 576, 498 N.Y.S.2d 743, 489 N.E.2d 712, it was recognized that a professional license obtained during a marriage constitutes marital property that may be separately valued and distributed. Once a license has had sufficient time to merge into a career, professional practice or business, however, it no longer has independent value (see, e.g., Marcus v. Marcus, 137 A.D.2d 131, 139, 525 N.Y.S.2d 238). If the license or degree merges into a private practice or business that is formed during a marriage, then the private practice or business, like any other business, regardless of when the license or degree was obtained, is marital property that must be valued and distributed (see, Van Ess v. Van Ess, 100 A.D.2d 848, 474 N.Y.S.2d 90; Litman v. Litman, 93 A.D.2d 695, 463 N.Y.S.2d 24, affd. 61 N.Y.2d 918, ...