Kim v. Schiller

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: REINALDO E. RIVERA
• Citation: Kim v. Schiller, 2013 NY Slip Op 8229, 112 A.D.3d 671, 978 N.Y.S.2d 229 (N.Y. App. Div. 2013)
• Decision Date: 11 December 2013
• Parties: Mihea KIM, respondent, v. Bradford C. SCHILLER, appellant.

112 A.D.3d 671

978 N.Y.S.2d 229

2013 N.Y. Slip Op. 08229

Mihea KIM, respondent,

v.Bradford C. SCHILLER, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 11, 2013.

Joseph Martin Carasso, New York, N.Y., for appellant.

Rogers McCarron & Habas, P.C., Orangeburg, N.Y. (Lawrence B. McCarron and Gregg L. Verrilli of counsel), for respondent.

REINALDO E. RIVERA, J.P., L. PRISCILLA HALL, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.

In an action for a divorce and ancillary relief, the defendant appeals, as limited by his brief, from so much of (1) an order of the Supreme Court, Rockland County (Alfieri, Jr., J.), dated February 15, 2012, as granted that branch of the plaintiff's cross motion which was for an award of an attorney's fee in the sum of $5,000, and (2) a judgment of the same court dated August 13, 2012, as, upon a decision of the same court dated June 25, 2012, made after a nonjury trial, (a) awarded the plaintiff the sum of $247,000 as the plaintiffs portion of the defendant's enhanced earning capacity, (b) failed to award the defendant a credit in the sum of $20,000 with respect to funds from his separate property that he used to repay the plaintiff's student loan debt, (c) failed to award him a marital share of the plaintiff's Vanguard and Fidelity retirement accounts, (d) awarded the plaintiff possession and ownership of the former marital residence and awarded the defendant a credit in the sum of only $60,000 as his share of the equity in the residence, (e) failed to equitably distribute the parties' household furnishings, (f) awarded the plaintiff the sum of $662 as the plaintiff's share of the defendant's Charles Schwab account, (g) awarded the plaintiff child support for the parties' two children in the sum of $3,774 per month, (h) failed to award the defendant a credit for voluntary payments he made to the plaintiff from September 13, 2010, the date that the action was commenced, until the issuance of an order dated June 24, 2011, awarding pendente lite relief to the plaintiff retroactive to May 5, 2011, (i) awarded the plaintiff, pendente lite, carrying costs on the former marital residence without modifyingthe child support awarded to the plaintiff, (j) failed to direct that the defendant is to receive a credit towards his child support obligation for any sum he contributes to room and board expenses for either or both of the parties' children during any time they attend college away from home, (k) failed to award the defendant dependent tax exemptions, allowances, and deductions for the parties' children, ( l ) awarded the plaintiff pendente lite maintenance arrears in the sum of $30,594, (m) directed the defendant to pay 50% of certain additional expenses incurred on behalf of the children, (n) failed to award the defendant an attorney's fee, ( o) awarded the plaintiff the sum of $5,000 for an expert's fee, (p) directed the defendant to pay 50% of, inter alia, all health care expenses of the parties' children not covered by insurance, and (q) failed to sanction the plaintiffs attorney for violating Rules of Professional Conduct (22 NYCRR 1200.0) rules 3.3 and 4.1 and CPLR 3120(3).

ORDERED that the order dated February 15, 2012, is affirmed insofar as appealed from, without costs or disbursements; and it is further,

ORDERED that the judgment is modified, on the law, on the facts, and in the exercise of discretion, (1) by reducing the award to the plaintiff for her equitable share of the defendant's enhanced earning capacity from the sum of $247,000 to the sum of $148,200, (2) by adding a provision thereto awarding the defendant a credit in the sum of $20,000 with respect to funds from his separate property that he used to repay the plaintiff's student loan debt, (3) by adding a provision thereto directing that the plaintiff's Vanguard and Fidelity retirement accounts be distributed pursuant to a Qualified Domestic Relations Order upon the earlier of the parties' retirement or the liquidation of the accounts, (4) by increasing the award to the defendant of the credit for his equitable interest in the former marital residence from the sum of $60,000 to the sum of $60,470, (5) by deleting the provision thereof awarding the plaintiff the sum of $662 as her equitable share of the defendant's Charles Schwab account, (6) by adding a provision thereto awarding the defendant a credit in the sum of $3,400 for voluntary child support payments he made from May 5, 2011, the date that the plaintiff moved for a pendente lite award of child support until the court issued the order dated June 24, 2011, (7) by adding a provision thereto directing that the defendant's child support obligation shall be decreased by the amount of any college room and board expenses he incurs while either of the parties' children attends college, (8) by adding a provision thereto directing that the defendant shall be permitted to claim dependent tax exemptions, allowances, and deductions for the parties' eldest child, that the plaintiff shall be permitted to claim dependent tax exemptions, allowances, and deductions for the parties' youngest child, that upon the emancipation of the parties' eldest child, the parties shall alternate, on an annual basis, the right to claim dependent tax exemptions, allowances, and deductions for the parties' youngest child until that child's emancipation, and directing the plaintiff to execute the appropriate Internal Revenue Service forms, (9) by deleting the provision thereof directing the defendant to pay 50% of certain additional expenses incurred on behalf of the children, including the cost of the children's furniture, trips to South Korea, and a sweet sixteen birthday party, as well as the cost of eyeglasses, contact lenses, summer camp, and therapy, and substituting therefor a provision awarding the plaintiff the sum of $895.50, representing the defendant's 50% share of in-network and reasonable unreimbursed medical expenses and tutoring expenses incurred by the plaintiff on behalf of the parties' children during the pendency of the action, (10) by reducing the award to the plaintiff for the defendant's pendente lite “maintenance arrears” from the sum of $30,594 to the sum of $19,800, representing $13,200 in pendente lite maintenance arrears and $6,600 in pendente lite arrears for the carrying charges for the former marital residence, (11) by deleting the provision thereof awarding the plaintiff the sum of $5,000 for an expert's fee, and (12) by adding to the provision thereof directing the defendant to pay 50% of, inter alia, all health care expenses of the parties' children not covered by insurance, the word “reasonable” before the words “health care expenses not covered by insurance”; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements, and the matter is remitted to the Supreme Court, Rockland County, for the entry of an amended judgment.

In this matrimonial action, the Supreme Court properly determined that the plaintiff was entitled to a share of the defendant's enhanced earning capacity. Although the plaintiff did not make direct financial contributions to the defendant's attainment of his medical degree and license, she made substantial indirect contributions, as the plaintiff was supportive of the defendant's attainment of his degree and the advancement of his career. Moreover, the plaintiff worked full-time throughout the marriage, except for those periods of time when she was on maternity leave or collecting disability benefits due to her chronic lupus disease. In addition, the plaintiff contributed her earnings to the family, bore two children for whom she had primary caretaking responsibility, cooked the family's meals, and participated in the housekeeping ( see Holterman v. Holterman, 3 N.Y.3d 1, 8–9, 781 N.Y.S.2d 458, 814 N.E.2d 765; McSparron v. McSparron, 87 N.Y.2d 275, 639 N.Y.S.2d 265, 662 N.E.2d 745; Huffman v. Huffman, 84 A.D.3d 875, 877, 923 N.Y.S.2d 583; Jayaram v. Jayaram, 62 A.D.3d 951, 953, 880 N.Y.S.2d 305; Cozza v. Colangelo, 298 A.D.2d 914, 747 N.Y.S.2d 641). However, under the circumstances of this case, where the defendant made accommodations for the sake of the plaintiffs career and her desire to remain near her family, as well as in light of the defendant's financial contributions during his tenure at medical school, we reduce the award to the plaintiff of the marital portion of the defendant's enhanced earning capacity from 50% to 30%, thereby reducing the plaintiff's award from $247,000 to $148,200.

We agree with the defendant that he is entitled to a credit in the sum of $20,000 with respect to funds from his separate property that he used during the marriage to repay the plaintiff's student loan debt ( see Sotnik v. Zavilyansky, 101 A.D.3d 1102, 1104, 956 N.Y.S.2d 514; Khan v. Ahmed, 98 A.D.3d 471, 472–473, 949 N.Y.S.2d 428; cf. Zaretsky v. Zaretsky, 66 A.D.3d 885, 887, 888 N.Y.S.2d 84; DiBlasi v. DiBlasi, 48 A.D.3d 403, 405, 852 N.Y.S.2d 195).

In the decision on which the judgment was based, the Supreme Court concluded that the plaintiff's retirement accounts were to be equitably distributed to the parties pursuant to a Qualified Domestic Relations Order upon the earlier of parties' retirement or the liquidation of the accounts. However, the judgment omitted mention of an award of any credit to the defendant with respect to the plaintiff's retirement accounts. “Where there is an inconsistency between a judgment and the decision upon which it is based, the decision controls” (Verdrager v. Verdrager, 230 A.D.2d 786, 787, 646 N.Y.S.2d 185; see Berry v. Williams, 87 A.D.3d 958, 961, 929 N.Y.S.2d 281; Matter of Jimmy D., 63 A.D.3d 737, 738, 880 N.Y.S.2d 334, affd.15 N.Y.3d 417, 912 N.Y.S.2d 537, 938 N.E.2d 970). “Further, such an inconsistency may be corrected either by way of a motion for resettlement or on appeal” (Verdrager v. Verdrager, 230 A.D.2d at 788, 646...