Rosenberg v. Rosenberg

• Decision Date: 06 November 1989
• Citation: 155 A.D.2d 428,547 N.Y.S.2d 90
• Parties: Ellen ROSENBERG, Respondent, v. David ROSENBERG, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 90

547 N.Y.S.2d 90

155 A.D.2d 428

Ellen ROSENBERG, Respondent, v. David ROSENBERG, Appellant.

Supreme Court, Appellate Division Second Department.

Nov. 6, 1989.

Harold A. Seidenberg, Nyack, for appellant.

Ferraro Rogers Dranoff Greenbaum Goldstein & Miller, P.C., Pearl River (Daniel J. Block and Arthur J. Ferraro, of counsel), for respondent.

Before THOMPSON, J.P., and RUBIN, SPATT and BALLETTA, JJ.

MEMORANDUM BY THE COURT.

In an action for a divorce and ancillary relief, the defendant husband appeals, as limited by his notice of appeal and brief, from stated portions of a judgment of the Supreme Court, Rockland County (Miller, J., on judgment; Edelstein, J., on decision), dated August 7, 1987, as (1) designated certain bank accounts as the plaintiff wife's separate property, (2) awarded the wife a distributive share of his medical practice in the amount of $89,000 and ordered him to transfer to the wife his interest in the marital home in lieu of a cash transfer, (3) failed to include the wife's Master's degree in social work as a marital asset, (4) granted the plaintiff one-half of the marital assets, (5) directed him to transfer certain Keogh and Individual Retirement Account funds to the wife, (6) directed him to maintain medical insurance for the wife, (7) directed him to maintain a life insurance policy designating the wife and children as irrevocable beneficiaries until termination of his maintenance and child support obligations, (8) directed him to pay maintenance to the wife in the amount of $150 per week for eight years, (9) directed him to pay child support in the amount of $150 per week per child, and (10) directed him to pay the wife's counsel fees in the amount of $10,000.

ORDERED that the judgment is modified, on the facts and as a matter of discretion, by (1) deleting so much of the fourth decretal paragraph thereof as directed payment of $150 maintenance per week to the plaintiff by the defendant for a period of eight years and substituting therefor a provision directing that those payments be made for a period of six years, and (2) deleting so much of the seventeenth decretal paragraph as directed an equal division of the Churchill Securities and E.F. Hutton accounts and payment of $10,000 to the plaintiff from these accounts and substituting therefor a provision directing payment of $10,000 to the plaintiff, $7,044.91 to the defendant and an equal division of the remainder of the funds in these accounts; as so modified, the judgment is affirmed, without costs or disbursements.

We find that the Supreme Court did not improvidently exercise its discretion in distributing 50% of the marital property, including the husband's medical practice, to the wife. At the time the parties married, the wife had completed the first year of a two-year course of study for a Master's degree in social work. The husband began his first year of medical school in 1972 after the parties were married. Although the wife was employed as a social worker after earning her degree, that work was interrupted by the birth of their first child. After the birth of a second child in December 1975 the wife did not ever again pursue her career as a social worker but remained at home to care for the children. The wife's contributions to the husband's medical career were significant because they were made early in the marriage. She helped the husband pursue his medical career and her noneconomic contributions as parent, spouse and homemaker were substantial (see, Marcus v. Marcus, 137 A.D.2d 131, 525 N.Y.S.2d 238). The husband completed his medical studies and opened a practice as an internist in the parties' home in 1979. The wife worked without pay in the husband's medical office for about six months. Thereafter, she was a full-time homemaker and caretaker for the parties' four children until 1983, when she obtained employment as a fundraiser. This action for a divorce was commenced in 1985.

Although the marriage was of moderate length, an equal division of the marital property was not an improvident exercise of the court's discretion under the factors enumerated in Domestic Relations Law § 236(B)(5)(d). In particular, the wife had contributed to the economic partnership as a parent and homemaker and had delayed development of her career potential in favor of the advancement of the husband's profession and in order to raise the parties' four children (see, Price v. Price, 69 N.Y.2d 8, 511 N.Y.S.2d 219, 503 N.E.2d 684).

The trial court was presented with conflicting evidence with respect to the value of the husband's medical practice. We find no error in the trial court's determination that the valuation of $178,000 provided by the wife's expert was more credible. This valuation, contrary to that provided by the husband's experts, was based on a review of the husband's business records, tax returns and deposition testimony and included such factors as earnings, tangible assets, goodwill and expenses (see, e.g., Marcus v. Marcus, supra ).

We need not reach the issue of whether the wife's Master's degree in social work and her accompanying State certification constituted marital property, since there was no credible evidence adduced as to the value of the degree and/or certification. Initially, we note that the wife had not worked as a social worker since 1975. Although the husband offered expert testimony to attempt to establish the value of the degree based on her enhanced earning capacity (see, e.g., O'Brien v. O'Brien, 66 N.Y.2d 576, 498 N.Y.S.2d 743, 489 N.E.2d 712; Raff v. Raff, 120 A.D.2d 507, 501 N.Y.S.2d 707), this expert's testimony was incredible as a matter of law. The expert was unaware of the wife's previous earnings as a social worker, and failed to provide the underlying figures upon which his testimony of enhanced earnings was based. Furthermore, this expert fixed a present value for the wife's Master's degree which was greater than the value he attributed to the husband's 10-year-old medical practice as an internist, despite the fact that the wife had neglected her career during the same years that the husband was in an established medical practice.

With respect to the court's distribution and valuation of the parties' remaining assets, we find that the court erred to the extent of not giving the husband credit for a $7,044.91 deposit into a Keogh account made-seven months after the commencement of this action. Although the evidence established that the account, when opened, was marital property, the husband's testimony and documentary evidence, which were unrebutted, demonstrated that the subsequent deposit should be treated as separate property for the purpose of equitable distribution (see, Domestic Relations Law § 236[B][1][c]; Gredel v. Gredel, 128 A.D.2d 834, 513 N.Y.S.2d 754). The judgment should also be modified so as to provide that the $10,000 awarded to the wife from the E.F. Hutton fund should be deducted before the balance of the fund is divided equally.

The child support award is not excessive given the husband's resources, the children's needs and the standard of living they would have enjoyed if the marriage had not been dissolved (see, Domestic Relations Law § 236[B][7][a]. The trial court erred in attributing monthly payments from a mortgage assignment in the amount of $480 to the husband's income when, in fact, the evidence established that the husband received $200 per month and the four children received $280 per month. However, this amount (i.e., $3,360 less income per year to the husband) is not so significant as to warrant a reduction of the child support or maintenance awards. Furthermore, the children's portion of the assignment income is paid into custodial accounts which, pursuant to the judgment, are not available to...