Sadaghiani v. Ghayoori

• Decision Date: 21 April 2011
• Citation: 923 N.Y.S.2d 236,83 A.D.3d 1309,2011 N.Y. Slip Op. 03157
• Parties: Avideh SADAGHIANI, Respondent,v.Ramin GHAYOORI, Appellant.
• Court: New York Supreme Court — Appellate Division

83 A.D.3d 1309

923 N.Y.S.2d 236

2011 N.Y. Slip Op. 03157

Avideh SADAGHIANI, Respondent,

v.Ramin GHAYOORI, Appellant.

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

April 21, 2011.

Friedman & Molinsek, P.C., Delmar (Michael P. Friedman of counsel), for appellant.Nestler & Gibson, P.L.L.C., Albany (Roy K. Nestler of counsel), for respondent.Michelle I. Rosien, Philmont, attorney for the child.Before: PETERS, J.P., SPAIN, ROSE, STEIN and EGAN JR., JJ.ROSE, J.

Appeals from two judgments of the Supreme Court (Teresi, J.), entered June 30, 2010 in Albany County, granting plaintiff a divorce and ordering, among other things, equitable distribution of the parties' marital property, upon a decision of the court.

Within weeks of the parties' 2001 marriage in Iran, plaintiff, a United States citizen, returned to her residence in Albany County pregnant with the only child of the marriage (born in 2001). Defendant, an Iranian citizen at the time of the marriage, arrived in the United States in 2002. He was a licensed physician in Iran and, within months of his arrival in the United States, he moved from plaintiff's residence to New York City to obtain licensure in this country and pursue his medical career. Although defendant initially returned to Albany County on weekends, his visits to the marital residence became sporadic, with many weeks and sometimes months passing between them. In December 2004, plaintiff obtained an order of child support and, in 2005, defendant commenced an unsuccessful action for divorce. After completing his residency, defendant moved to California in 2008, and plaintiff commenced this action for divorce. The parties stipulated to grounds and waived maintenance, and a trial was held on the issues of equitable distribution, custody, visitation and child support. Supreme Court determined, among other things, that a portion of defendant's medical license was marital property, awarded approximately 30% of that portion to plaintiff, awarded plaintiff sole physical custody of the child with liberal visitation as the parties could agree and ordered defendant to pay $650 per week in child support.¹ Defendant appeals, challenging the valuation and distribution of his enhanced earning capacity, the failure to distribute certain other property, the child support award, and the visitation order.

The only evidence submitted on the issue of the value of defendant's enhanced earnings from his medical license was from plaintiff's expert, who provided two valuation scenarios. Supreme Court accepted the value under the first scenario and found that one third of the enhanced earning capacity was marital property, resulting in the availability of $527,667 for distribution. Given the uncontroverted nature of the expert testimony and report, Supreme Court's valuation of the marital portion is supported by the record and cannot be said to be an abuse of discretion ( see Bean v. Bean, 53 A.D.3d 718, 722, 860 N.Y.S.2d 683 [2008]; Farrell v. Cleary–Farrell, 306 A.D.2d 597, 598, 761 N.Y.S.2d 357 [2003]; Douglas v. Douglas, 281 A.D.2d 709, 713, 722 N.Y.S.2d 87 [2001] ).

We must agree with defendant, however, that the distribution of 30% of the marital portion to plaintiff is not equitable under the circumstances. A nontitled spouse seeking a portion of the enhanced earning potential attributable to a professional license or degree of a titled spouse is required to establish that a substantial contribution was made to the acquisition of the degree or license ( see McAuliffe v. McAuliffe, 70 A.D.3d 1129, 1136, 895 N.Y.S.2d 228 [2010]; Brough v. Brough, 285 A.D.2d 913, 914, 727 N.Y.S.2d 555 [2001] ). Where, as here, only modest contributions are made by the nontitled spouse, and the attainment of the degree is more directly the result of the titled spouse's own hard work, distribution of the enhanced earning capacity should be limited ( see Carman v. Carman, 22 A.D.3d 1004, 1006–1007, 802 N.Y.S.2d 558 [2005]; Farrell v. Cleary–Farrell, 306 A.D.2d at 599, 761 N.Y.S.2d 357).

Defendant obtained his medical degree prior to the marriage and, by the time he arrived in the United States, he had already passed some of the examinations required to practice medicine here. He cohabited with plaintiff for less than six months upon his arrival, after which time he took additional tests and obtained a volunteer position in New York City while seeking a medical residency. Defendant started his volunteer position in early 2003 and obtained a residency in obstetrics/gynecology in 2004 in New York City, where he remained until its completion in 2008, when he accepted a position as a licensed physician in California. Defendant's expenses while living in New York City were covered by his mother, and there was no evidence that plaintiff interrupted her career or adjusted her lifestyle to support defendant's efforts in obtaining his license. Indeed, plaintiff herself obtained a Master's degree during the marriage while continuing to be employed full time. While plaintiff did provide support and assistance to defendant initially when he arrived in the United States, cared for the parties' child, and provided and maintained a residence for defendant to return to on weekends, her modest contributions support an award of no more than 10% of the marital portion of defendant's enhanced earnings and, thus, we modify the judgments accordingly ( see Farrell v. Cleary–Farrell, 306 A.D.2d at 599–600, 761 N.Y.S.2d 357; Brough v. Brough, 285 A.D.2d at 916, 727 N.Y.S.2d 555; compare McAuliffe v. McAuliffe, 70 A.D.3d at 1136, 895 N.Y.S.2d 228, with Mairs v. Mairs, 61 A.D.3d 1204, 1206–1207, 878 N.Y.S.2d 222 [2009] ).

Next, we cannot agree with defendant's contention that Supreme Court erred in failing to distribute certain property titled in plaintiff's name. Plaintiff testified that the real property she owned was purchased either prior to the marriage or with funds from the sale of separate property. Defendant, as the nontitled spouse, bore the burden of establishing that any increased value in the separate property was due in part to his efforts ( see Bonanno v. Bonanno, 57 A.D.3d 1260, 1261, 870 N.Y.S.2d 551 [2008] ). As defendant offered no evidence that he contributed anything to either the original purchase of the properties or any increase in their value, he was not entitled to distribution of any portion of the real property ( see London v. London, 21 A.D.3d 602, 603, 799 N.Y.S.2d 646 [2005]; Burgio v. Burgio, 278 A.D.2d 767, 769, 717 N.Y.S.2d 769 [2000] ). As for plaintiff's pension and deferred compensation plans, an award of the portion earned during the marriage must be based on “considerations of fairness and the respective situations of the parties” ( Redgrave v. Redgrave, 13 A.D.3d 1015, 1016, 788 N.Y.S.2d 200 [2004] [internal quotation marks and citation omitted]; see Butler v. Butler, 256 A.D.2d 1041, 1045, 683 N.Y.S.2d 603 [1998], lv. denied 93 N.Y.2d 805, 689 N.Y.S.2d 429, 711 N.E.2d 643 [1999] ). We agree with Supreme Court that there was no evidence of any direct or indirect contribution by defendant to plaintiff's acquisition of either of these assets ( see Matwijczuk v. Matwijczuk, 261 A.D.2d 784, 787, 690 N.Y.S.2d 343 [1999] ).

Turning to child support, defendant challenges Supreme Court's imputation of income to him. It is well settled, however, that a trial court has considerable discretion in determining the appropriate amount of income to be used in calculating child support and “is not bound by a parent's account of his or her own finances” ( Armstrong v. Armstrong, 72 A.D.3d 1409, 1412–1413, 900 N.Y.S.2d 476 [2010] [internal quotation marks and citation omitted]; see Moffre v. Moffre, 29 A.D.3d 1149, 1150, 815 N.Y.S.2d 315 [2006] ). Income may be imputed based upon prior employment experience as well as future earning capacity in light of a party's educational background ( see Armstrong v. Armstrong, 72 A.D.3d at 1413, 900 N.Y.S.2d 476; Matter of Bianchi v. Breakell, 23 A.D.3d 947, 949, 804 N.Y.S.2d 846 [2005] ).

Here, defendant accepted a position in...