Iwahara v. Iwahara

• Decision Date: 01 April 1996
• Citation: 226 A.D.2d 346,640 N.Y.S.2d 217
• Parties: Yoko IWAHARA, Respondent-Appellant, v. Makoto IWAHARA, Appellant-Respondent.
• Court: New York Supreme Court — Appellate Division

Page 217

640 N.Y.S.2d 217

226 A.D.2d 346

Yoko IWAHARA, Respondent-Appellant, v. Makoto IWAHARA, Appellant-Respondent.

Supreme Court, Appellate Division Second Department.

April 1, 1996.

Jay Landa, Garden City, for appellant-respondent.

Cohen, Goldstein & Silpe, New York City (Jeffrey R. Cohen and Kenneth S. Sternberg, of counsel), for respondent-appellant.

Before BALLETTA, J.P., and ROSENBLATT, RITTER and PIZZUTO, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals from stated portions of a judgment of the Supreme Court, Westchester County (Fredman, J.), dated January 24, 1994, which, after a nonjury trial, inter alia, (1) awarded the plaintiff wife a distributive award of $350,000 payable at a rate of $35,000 per year over a period of 10 years with interest at 9% per year; (2) awarded her maintenance in the sum of $30,000 per year for 10 years and $15,000 per year for the following five years; and (3) awarded child support in the sum of $20,000 per year, and the plaintiff wife cross-appeals on the ground of inadequacy from stated portions of the same judgment.

ORDERED that the judgment is modified, on the law, by (1) deleting from the sixth decretal paragraph thereof the sums of $350,000 and $35,000 and substituting therefor the sums of $153,000 and $15,300, respectively, (2) deleting from the fifth decretal paragraph thereof the following: "Defendant shall be fully and personally responsible for payment in full of such expenses" and substituting therefor the following: "Defendant shall be responsible for payment of 78% of such expenses", (3) deleting from the seventh decretal paragraph the following: "the sum of $30,000.00 per year ($2,500 per month) for the first ten (10) years after the effective date of the decision of this court, to be reduced to the sum of $15,000.00 per year ($1,250.00 per month) for the following five (5) years" and substituting therefor the following: "the sum of $20,000 per year ($1,666.66 per month) for ten (10) years", and (4) adding a decretal paragraph permitting the husband to claim the children as dependents for income tax purposes; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

In this case, the husband's medical license was the sole marital asset subject to equitable distribution (see generally, O'Brien v. O'Brien, 66 N.Y.2d 576, 498 N.Y.S.2d 743, 489 N.E.2d 712; Shoenfeld v. Shoenfeld, 168 A.D.2d 674, 563 N.Y.S.2d 500; see also, McSparron v. McSparron, 87 N.Y.2d 275, 639 N.Y.S.2d 265, 662 N.E.2d 745), and the wife, as the nontitled spouse, had the burden of proving the asset's value so as to afford the court a sufficient basis upon which to make a distributive award (see, Grenier v. Grenier, 210 A.D.2d 557, 620 N.Y.S.2d 139; Semans v. Semans, 199 A.D.2d 790, 605 N.Y.S.2d 510; Shapiro v. Shapiro, 151 A.D.2d 559, 542 N.Y.S.2d 339; Gredel v. Gredel, 128 A.D.2d 834, 513 N.Y.S.2d 754).

At the trial of this action, the wife's expert compared the husband's earning capacity as a licensed medical doctor with a specialty as an internist with his earning capacity if he were merely a mathematician with a B.A., which was the degree he earned before attending medical school. The trial court, however, found that the defendant was a medical doctor in all respects at the time of the parties' marriage and, therefore, rejected the testimony of the wife's expert. We agree with the court's finding in this regard.

Since the expert testimony provided by the wife was completely immaterial to this case, the only remaining competent testimony as to the value of the license was that of the expert who testified on behalf of the husband. Clearly, therefore, the wife failed to sustain her burden of proving the value of the license (see, Grenier v. Grenier, supra; Semans v. Semans, supra ), and the testimony as to its value provided by the husband's expert stands uncontroverted.

However, despite the fact that the valuation put forth by the husband's expert was the only competent evidence as to the value of the husband's medical license, the trial court provided for a distributive award of more than twice the value of the license as computed by the husband's expert, stating that it wished to provide the wife with a "nest egg". In this, the court erred.

The valuation of a marital asset must be founded in economic reality (see, Harmon v. Harmon, 173 A.D.2d 98, 578 N.Y.S.2d 897), and "it is not enough that the court's decision merely fix...