Maher v. Maher
| Decision Date | 09 August 1993 |
| Parties | Mary Louise MAHER, Appellant, v. Gerard A. MAHER, Respondent. |
| Court | New York Supreme Court — Appellate Division |
Lechleitner & Miller, Deer Park (Dennis M. Apfel, of counsel), for appellant.
Kaman, Berlove, Marafioti, Jacobstein & Goldman, Rochester (Joyce F. Petronio and William F. Gormley, of counsel), for respondent.
Before ROSENBLATT, J.P., and COPERTINO, PIZZUTO and JOY, JJ.
MEMORANDUM BY THE COURT.
In an action for a divorce and ancillary relief, the plaintiff wife appeals, as limited by her brief, from stated portions of a judgment of the Supreme Court, Suffolk County (Fierro, J.), entered December 11, 1990, as, after a nonjury trial, (1) held that the defendant husband's law license had merged into his career, (2) declined to award the wife life insurance, (3) limited her award of counsel fees to $10,000, (4) found that a $75,000 post-commencement loan used to satisfy marital obligations was marital debt, and (5) failed to award the wife an interest in the husband's Rolex watch.
ORDERED that the judgment is modified, on the facts and in the exercise of discretion, by (1) adding to the third decretal paragraph thereof the words "and the defendant is directed to pay an additional distributive award of $3,750 representing one-half the value of the defendant's 18 kt Rolex watch", and (2) increasing the award of counsel fees from $10,000 to $30,000; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.
The wife is contesting various provisions of the judgment of divorce, with emphasis on the trial court's failure to award her a distributive share of the defendant husband's license to practice law. In its memorandum decision, the court determined that, while the husband's license to practice law was a marital asset, it had merged with his legal career and, therefore, was not subject to equitable distribution. We agree.
The Court of Appeals has clearly stated that a professional license is a "thing of value" arising out of the marital relationship (see, O'Brien v. O'Brien, 66 N.Y.2d 576, 498 N.Y.S.2d 743, 489 N.E.2d 712). In O'Brien, the husband left the wife two months after receiving his medical license. Prior to that time, the wife had supported herself and her husband. However, at the time of the divorce there were no assets to be distributed other than the husband's medical license. In O'Brien, the Court of Appeals determined that the monetary value of the relevant academic credential was to be determined and then distributed as a marital asset (accord, McGowan v. McGowan, 142 A.D.2d 355, 535 N.Y.S.2d 990).
However, when a business or practice is of a sufficient duration, the license is deemed to have merged with the business, practice, or career, and thus is not available for equitable distribution (see, Marcus v. Marcus, 137 A.D.2d 131, 525 N.Y.S.2d 238; Kalisch v. Kalisch, 184 A.D.2d 751, 585 N.Y.S.2d 476). In Marcus, the seminal case on merger, the husband had obtained a medical license in 1950, during the marriage, and he subsequently developed his psychiatric practice over a period of 30 years. The psychiatric practice was an ongoing concern at the time of the commencement of the marital action. This court found that (Marcus v. Marcus, supra, 137 A.D.2d at 139, 525 N.Y.S.2d 238).
In the instant case, the trial court properly determined that the husband's law license had merged with his legal career. "[T]he equitable considerations that undoubtedly motivated the O'Brien court are fundamentally different where the license has been held for a substantial period of time and has merged into a career" (Parlow v. Parlow, 145 Misc.2d 850, 856, 548 N.Y.S.2d 373; see, Kalisch v. Kalisch, supra ). The theory underlying O'Brien was that the nontitle-holding spouse was entitled to the value of the license where the titled spouse had not yet developed a...
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