McAlpine v. McAlpine

• Court: New York Supreme Court
• Writing for the Court: H. PATRICK LEIS, III
• Citation: McAlpine v. McAlpine, 539 N.Y.S.2d 680, 143 Misc.2d 30 (N.Y. Sup. Ct. 1989)
• Decision Date: 23 March 1989
• Parties: Lori McALPINE, Plaintiff, v. Scott McALPINE, Defendant.

Page 680

539 N.Y.S.2d 680

143 Misc.2d 30

Lori McALPINE, Plaintiff, v. Scott McALPINE, Defendant.

Supreme Court, Suffolk County.

March 23, 1989.

Pachman & Oshrin, P.C., Commack, for plaintiff.

Reinharz & Nessel, Baldwin, for defendant.

H. PATRICK LEIS, III, Justice.

The parties herein were married on September 22, 1982. There are no infant issue of the marriage. This action for divorce was commenced on November 28, 1986. Accordingly, this is a marriage of short duration. Defendant-husband is twenty nine years of age while plaintiff-wife is thirty one. Defendant-husband is employed as an associate actuary for New York Life Insurance Company earning approximately $72,000.00 annually. Plaintiff-wife is employed as a sales coordinator for American Technical Ceramics earning approximately $27,000.00 per year.

During the course of the trial, plaintiff-wife withdrew her cause of action for divorce and defendant-husband went forward uncontested on his counterclaim for divorce on the ground of cruel and inhuman treatment. Finding the allegations proven as alleged, the court grants defendant-husband a divorce on said ground.

Herein, the court is confronted with three novel issues which it must resolve in order to equitably distribute the parties marital property:

(1) Pursuant to the holding of the Court of Appeals in the landmark case of O'Brien v. O'Brien, 66 N.Y.2d 576, 498 N.Y.S.2d 743, 489 N.E.2d 712 (1985), is attainment of a professional distinction such as a membership in a professional society, specifically, becoming a Fellow in the Society of Actuaries, a marital asset subject to equitable distribution?

(2) If so, must the spouse seeking to share in the enhanced earning potential prove that she contributed in some manner to the attainment of her husbands fellowship?

(3) Where a spouse has made separate property contributions to the acquisition of marital property, such as a marital home, should he or she receive, in addition to the return of said separate property contribution, interest or appreciation generated by said contribution, separate and apart from the equitable distribution award?

Question number one must be answered in the affirmative. With the advent of O'Brien v. O'Brien and its progeny McGowan v. McGowan, 142 A.D.2d 355, 535 N.Y.S.2d 990 (2nd Dep't 1988); mot. lv. app. den., N.Y.L.J. March 10, 1989 p. 25 col. 1 (2nd Dep't); Morimando v. Morimando, App.Div., 536 N.Y.S.2d 701 (2nd Dep't 1988); Freyer v. Freyer, 138 Misc.2d 158, 524 N.Y.S.2d 147 (Sup.Ct., Suffolk Co., 1987); Golub v. Golub, 139 Misc.2d 440, 527 N.Y.S.2d 946 (Sup.Ct., N.Y.Co., 1988), a trend has developed wherein the courts will consider as a marital asset, the enhanced earning capacity that a party has achieved during marriage by virtue of attaining a professional license, academic degree or other accomplishment. Of course, the value of the enhanced earning capacity is something that must be proven at trial. Here, defendant-husband was awarded a fellowship in the Society of Actuaries during his marriage to plaintiff. Certainly, such distinction may enhance the earning capacity of the recipient thereof. Accordingly, the court holds that such a professional distinction and its resultant enhanced earning capacity is a marital asset.

Question number two must likewise be answered in the affirmative. In O'Brien v. O'Brien, supra, Defendant-wife played a major role during nearly all of the nine years of their marriage helping her husband to attain his medical license. She contributed nearly all of her earnings to that joint effort. She sacrificed her own educational and career opportunities and she lived with the plaintiff in Mexico for three and a half years while he attended medical school. In short, Mrs. O'Brien made specific contributions that enabled Dr. O'Brien to attain his medical license (DRL § 236(B)(5)(d)(6), (9); (B)(5)(e). It was these contributions which represented investments in the economic partnership of the marriage, and resulted in the professional license becoming the product of the parties' joint efforts. It was thus these specific contributions which provided the basis upon which Mrs. O'Brien was entitled to share in the enhanced earning potential of Dr. O'Brien's medical license.

Here, however, the court holds that Plaintiff-wife may not share in the enhanced earning capacity generated by Fellowship in the Society of Actuaries since she did not contribute to its attainment. Defendant is a unique individual in that he studied on his own during working hours without interrupting his performance at his place of business. There was no cost attached to his studies and plaintiff-wife continued at her chosen occupation throughout the marriage. This was a short marriage in duration and she made no sacrifices with respect to her own educational or career goals. In addition, the testimony established that the parties did not share in taking care of the house and household duties. Rather, defendan -husband performed most of those duties. He did all of the painting, most of the house cleaning and laundering of clothes. He ironed his own clothes, cooked, did the plumbing repairs, installed a sprinkler system, did all of the landscaping, the carpentry work, installed electrical fixtures and air conditioners and sewed their drapes. He even did all of the repair and maintenance work on the family cars making it unnecessary to even take the cars to an auto mechanic for servicing.

With regard to defendant's attainment of his Fellowship in the Society of Actuaries, the court finds that he is a uniquely bright and hard working individual and has earned his Fellowship as a result of his own superior intelligence and industry. In order to become a Fellow in the Actuary Society, defendant-husband had to pass...