Higgins v. Higgins
| Decision Date | 15 April 2008 |
| Docket Number | 2006-08993.,2006-08992. |
| Citation | 50 A.D.3d 852,2008 NY Slip Op 03421,857 N.Y.S.2d 170 |
| Parties | DAWN HIGGINS, Appellant, v. DAVIS HIGGINS, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the appeal from the findings of fact and conclusions of law is dismissed, as findings of fact and conclusions of law are not separately appealable (see Matter of County of Westchester v O'Neill, 191 AD2d 556 [1993]); and it is further,
Ordered that the judgment is modified, on the law, the facts, and in the exercise of discretion, by deleting the provisions thereof (1) awarding the defendant a 30% credit for his equitable share of the plaintiff's enhanced earnings resulting from her Bachelor's degree and Master's degree valued at $306,000 as credited against the plaintiff's share of the marital residence, (2) awarding the defendant a credit for one half of the payments he made on a loan against his Ford Motor Company Savings Plan, (3) awarding the defendant a credit for payments of the mortgage, taxes, homeowner's insurance, and other expenses connected with the marital residence, (4) awarding the plaintiff child support, (5) fixing child support arrears, and (6) awarding the plaintiff child care expenses; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Orange County, for a determination of the husband's income, and a recalculation of child care expenses, child support, and child support arrears, taking into account any credit due for amounts paid by the husband pursuant to the pendente lite order.
Although the enhanced earnings from academic degrees and professional licenses attained during the marriage are subject to equitable distribution, "it is ... incumbent upon the nontitled party seeking a distributive share of such assets to demonstrate that they made a substantial contribution to the titled party's acquisition of that marital asset" (Brough v Brough, 285 AD2d 913, 914 [2001]). Moreover, "[w]here only modest contributions are made by the nontitled spouse toward the other spouse's attainment of a degree or professional license, and the attainment is more directly the result of the titled spouse's own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity" (Farrell v Cleary-Farrell, 306 AD2d 597, 599-600 [2003]; see Vora v Vora, 268 AD2d 470, 471 [2000]).
In the instant matter, the defendant did not demonstrate that his contributions were substantial. Despite making some efforts to help, there is no evidence that he made career sacrifices or assumed a disproportionate share of household work as a consequence of the plaintiff's education. In this regard, the record reveals that the defendant made only minor contributions. Moreover, the plaintiff worked full time while attending school, funded some of her own educational costs, and was still the primary caregiver for the parties' children. Consequently, the trial court improvidently exercised its discretion in awarding the defendant a share of the plaintiff's enhanced earning capacity (see Duspiva v Duspiva, 181 AD2d 810, 811 [1992]).
The Supreme Court improperly credited the defendant for one half of the payments he allegedly made towards the loan against his Ford Motor Company Savings Plan. Although the loan was a marital debt, the court improperly credited the defendant for his payments after the commencement of the action as he did not present documentary evidence in support of the claim (see Dermigny v Dermigny, 23 AD3d 429, 431 [2005]; Phillips v Phillips, 249 AD2d 527, 528 [1998]).
With respect to child support, the Supreme Court should not have determined the defendant's obligations by relying...
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