Elkus v. Elkus

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before MILONAS; ROSENBERGER
• Citation: Elkus v. Elkus, 572 N.Y.S.2d 901, 169 A.D.2d 134 (N.Y. App. Div. 1991)
• Decision Date: 02 July 1991
• Parties: , 60 USLW 2139 F. ELKUS, Plaintiff-Respondent, v. Peter ELKUS, Defendant-Appellant.

Page 901

572 N.Y.S.2d 901

169 A.D.2d 134, 60 USLW 2139

F. ELKUS, Plaintiff-Respondent, v. Peter ELKUS, Defendant-Appellant.

Supreme Court, Appellate Division First Department.

July 2, 1991.

Alfred Ferrer, III, of counsel (Stacey Hallerman, with him on the brief, Bass & Ullman, attorneys), New York City, for defendant-appellant,

Jeanne Wilmot Carter, of counsel (Raimonde L. Schwarz, with her on the brief, Raoul Lionel Felder, P.C., attorney), New York City, for plaintiff-respondent.

Before MILONAS, J.P., and ROSENBERGER, ASCH, SMITH and RUBIN, JJ.

ROSENBERGER, Justice.

In this matrimonial action, the plaintiff, Frederica von Stade Elkus, moved for an order determining, prior to trial, whether her career and/or celebrity status constituted marital property subject to equitable distribution. The parties have already stipulated to mutual judgments of divorce terminating their seventeen year marriage and to joint custody of their two minor children. The trial on the remaining economic issues has been stayed pending the outcome of this appeal from the order of the Supreme Court, which had determined that the enhanced value of the plaintiff's career and/or celebrity status was not marital property subject to equitable distribution. Contrary to the conclusion reached by the Supreme Court, we find that to the extent the defendant's contributions and efforts led to an increase in the value of the plaintiff's career, this appreciation was a product of the marital partnership, and, therefore, marital property subject to equitable distribution.

At the time of her marriage to the defendant on February 9, 1973, the plaintiff had just embarked on her career, performing minor roles with the Metropolitan Opera Company. During the course of the marriage, the plaintiff's career succeeded dramatically and her income rose accordingly. In the first year of the marriage, she earned $2,250. In 1989, she earned $621,878. She is now a celebrated artist with the Metropolitan Opera, as well as an international recording artist, concert and television performer. She has garnered numerous awards, and has performed for the President of the United States.

During the marriage, the defendant travelled with the plaintiff throughout the world, attending and critiquing her performances and rehearsals, and photographed her for album covers and magazine articles. The defendant was also the plaintiff's voice coach and teacher for ten years of the marriage. He states that he sacrificed his own career as a singer and teacher to devote himself to the plaintiff's career and to the lives of their young children, and that his efforts enabled the plaintiff to become one of the most celebrated opera singers in the world. Since the plaintiff's career and/or celebrity status increased in value during the marriage due in part to his contributions, the defendant contends that he is entitled to equitable distribution of this marital property.

The Supreme Court disagreed, refusing to extend the holding in O'Brien v. O'Brien, 66 N.Y.2d 576, 498 N.Y.S.2d 743, 489 N.E.2d 712, in which the Court of Appeals determined that a medical license constituted marital property subject to equitable distribution, to the plaintiff's career as an opera singer. The court found that since the defendant enjoyed a substantial life style during the marriage and since he would be sufficiently compensated through distribution of the parties' other assets, the plaintiff's career was not marital property.

There is a paucity of case law and no appellate authority in New York governing the issue of whether a career as a performing artist, and its accompanying celebrity status, constitute marital property subject to equitable distribution. The plaintiff maintains that since her career and celebrity status are not licensed, are not entities which are owned like a business, nor are protected interests which are subject to due process of law, they are not marital property. In our view, neither the Domestic Relations Law, nor relevant case law, allows for such a limited interpretation of the term marital property.

Domestic Relations Law § 236[B][1][c] broadly defines marital property as property acquired during the marriage "regardless of the form in which title is held." In enacting the Equitable Distribution Law (L.1980, ch. 281, § 9), the Legislature created a radical change in the traditional method of distributing property upon the dissolution of a marriage (Price v. Price, 69 N.Y.2d 8, 14, 511 N.Y.S.2d 219, 503 N.E.2d 684). By broadly defining the term "marital property", it intended to give effect to the "economic partnership" concept of the marriage relationship (Id. at 15, 511 N.Y.S.2d 219, 503 N.E.2d 684; Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15). It then left it to the courts to determine what interests constitute marital property.

Things of value acquired during marriage are marital property even though they may fall outside the scope of traditional property concepts (O'Brien v. O'Brien, supra; Florescue, "Market Value", Professional Licenses and Marital Property: A Dilemma in Search of a Horn, 1982 NY St Bar Assn Fam L Rev 13 [Dec.]. The statutory definition of marital property does not mandate that it be an asset with an exchange value or be salable, assignable or transferable. (Freed, Brandes and Weidman, "What is Marital Property?", NYLJ, December 5, 1990, p. 3, col. 1). The property may be tangible or intangible (Id.).

Medical licenses have been held to enhance the earning capacity of their holders, so as to enable the other spouse who made direct or indirect contributions to their acquisition, to share their value as part of equitable distribution (O'Brien v. O'Brien, supra; Maloney v. Maloney, 137 A.D.2d 666, 524 N.Y.S.2d 758; Raff v. Raff, 120 A.D.2d 507, 501 N.Y.S.2d 707). A Medical Board Certification (Savasta v. Savasta, 146 Misc.2d 101, 549 N.Y.S.2d 544 (Sup.Ct. Nassau Co.), a law degree (Cronin v. Cronin, 131 Misc.2d 879, 502 N.Y.S.2d 368 (Sup.Ct. Nassau Co.), an accounting degree (Vanasco v. Vanasco, 132 Misc.2d 227, 503 N.Y.S.2d 480 (Sup.Ct. Nassau Co.), a podiatry practice (Morton v. Morton, 130 A.D.2d 558, 515 N.Y.S.2d 499), the licensing and certification of a physician's assistant (Morimando v. Morimando, 145 A.D.2d 609, 536 N.Y.S.2d 701), a Masters degree in teaching (McGowan v. McGowan, 142 A.D.2d 355, 535 N.Y.S.2d 990) and a fellowship in the Society of Actuaries (McAlpine v. McAlpine, 143 Misc.2d 30, 539 N.Y.S.2d 680 (Sup.Ct. Suffolk Co.) have also been held to constitute marital property.

Although the plaintiff's career, unlike that of the husband in O'Brien, is not licensed, the O'Brien court did not restrict its holding to professions requiring a license or degree. In reaching its conclusion that a medical license constitutes marital property, the O'Brien court referred to the language contained in Domestic Relations Law § 236 which provides that in making an equitable distribution of marital property, "the court shall consider: ... (6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party [and] ... (9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession" (Domestic Relations Law § 236[B][5][d][6], [9] (emphasis added). The court also cited § 236[B][5][e] which provides that where, equitable distribution of marital property is appropriate, but "the distribution of an interest in a business, corporation or profession would be contrary to law", the court shall make a distributive award in lieu of an actual distribution of the property (O'Brien v. O'Brien, supra, 66 N.Y.2d at 584, 498 N.Y.S.2d 743, 489 N.E.2d 712).

The Court of Appeals' analysis of the statute is equally applicable here. "The words mean exactly what they say: that an interest in a profession or professional career potential is marital property which may be represented by direct or indirect contributions of the non-title-holding spouse, including financial contributions and nonfinancial contributions made by caring for the home and family" (O'Brien v. O'Brien, supra at 584, 498 N.Y.S.2d 743, 489 N.E.2d 712). Nothing in the statute or the O'Brien decision supports the plaintiff's contention that her career and/or celebrity status are not marital property. The purpose behind the enactment of the legislation was to prevent inequities which previously occurred upon the dissolution of a marriage. Any attempt to limit marital property to professions which are licensed would only serve to discriminate against the spouses of those engaged in other areas of employment. Such a distinction would fail to carry out the premise upon which equitable distribution is based, i.e., that a marriage is an economic partnership to...