McAlpine v. McAlpine

• Court: New York Supreme Court — Appellate Division
• Writing for the Court: Before SULLIVAN
• Citation: McAlpine v. McAlpine, 574 N.Y.S.2d 385, 176 A.D.2d 285 (N.Y. App. Div. 1991)
• Decision Date: 23 September 1991
• Parties: Lori McALPINE, Appellant-Respondent, v. Scott McALPINE, Respondent-Appellant.

Page 385

574 N.Y.S.2d 385

176 A.D.2d 285

Lori McALPINE, Appellant-Respondent, v. Scott McALPINE, Respondent-Appellant.

Supreme Court, Appellate Division Second Department.

Sept. 23, 1991.

Pachman & Oshrin, P.C., Commack (Alan D. Oshrin, of counsel), for appellant-respondent.

Reinharz & Nessel, Baldwin (Alfred Reinharz, of counsel), for respondent-appellant.

Before SULLIVAN, J.P., and MILLER, O'BRIEN and RITTER, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the plaintiff wife appeals (1), as limited by her notice of appeal and brief, from so much of a judgment of divorce of the Supreme Court, Suffolk County (Leis, J.), entered January 26, 1989, as provided for the distribution of the parties' marital property, and (2), as limited by her brief, from so much of a "revised memorandum decision" of the same court, dated March 23, 1989, as incorporated the provisions of the judgment from which she appealed, and the defendant husband cross-appeals from so much of the judgment as awarded the plaintiff $11,100 from a joint savings account and $6,000 in counsel fees.

ORDERED that the appeal from the revised memorandum decision dated March 23, 1989, 143 Misc.2d 30, 539 N.Y.S.2d 680, is dismissed, without costs or disbursements, as no appeal lies from a decision; and it is further,

ORDERED that the judgment is modified on the law, the facts, and as a matter of discretion, by deleting from the third decretal paragraph thereof (1) the words "after deducting from the sales price the sum of $33,250", and substituting therefor the phrase "after deducting from the sales price the sum of $13,326", and (2) the words "70% to the defendant" and "30% to the plaintiff", and substituting therefor the words "75% to the defendant" and "25% to the plaintiff"; as so modified, the judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The plaintiff wife contends that the defendant's fellowship in the Society of Actuaries is a marital asset and that the Supreme Court erred in failing to award her any share of the enhanced earning capacity the defendant has realized as a result of acquiring the fellowship. We conclude that a portion of the value of the defendant's fellowship constitutes marital property subject to equitable distribution (see, Price v. Price, 69 N.Y.2d 8, 15, 511 N.Y.S.2d 219, 503 N.E.2d 684; Domestic Relations Law § 236B[1][c]. However, under the circumstances of this case, the plaintiff was not entitled to share in the defendant's enhanced earning capacity, if any, respresented by the marital portion of the fellowship.

The record established that the major portion of the defendant's fellowship was earned prior to the marriage. The defendant had obtained his college degree in mathematics and passed five of ten examinations needed to qualify as a fellow before the parties were married in September 1982. Thereafter, the defendant worked full-time while studying at home on his own in order to prepare for the remaining five examinations. He did not need additional schooling. The credible evidence adduced at trial supports the trial court's findings that the plaintiff did not assist the defendant in his studies or make any substantial contributions, direct or indirect, to the acquisition of the fellowship. Additionally, the record supports the trial court's findings that the plaintiff made no personal sacrifices with respect to her own educational or career goals, and that the defendant performed the bulk of the household duties during the marriage.

In our view, the subject...