Shkreli v. Shkreli

• Court: New York Supreme Court — Appellate Division
• Citation: Shkreli v. Shkreli, 2016 NY Slip Op 5752, 142 A.D.3d 546, 36 N.Y.S.3d 208 (N.Y. App. Div. 2016)
• Decision Date: 10 August 2016
• Parties: Anthony SHKRELI, appellant, v. Joanne SHKRELI, respondent.

142 A.D.3d 546

36 N.Y.S.3d 208

2016 N.Y. Slip Op. 05752

Anthony SHKRELI, appellant,

v.Joanne SHKRELI, respondent.

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

Aug. 10, 2016.

Law Office of Thomas M. Gambino & Associates, P.C., Poughkeepsie, NY, for appellant.

David A. Browde, P.C., Chappaqua, NY (Kristen P. Browde of counsel), for respondent.

JOHN M. LEVENTHAL, J.P., ROBERT J. MILLER, COLLEEN D. DUFFY, and HECTOR D. LaSALLE, JJ.

Appeal by the plaintiff from a judgment of divorce of the Supreme Court, Putnam County (Victor G. Grossman, J.), dated September 2, 2014. The judgment of divorce, insofar as appealed from, upon a decision of that court dated June 17, 2014, made after a nonjury trial, (a) failed to award the plaintiff a credit for the defendant's enhanced earning capacity, (b) determined that the marital residence was marital property except for the plaintiff's separate property credit of only $50,000 and directed its sale, and (c) in its equitable distribution of the property, inter alia, awarded the defendant a credit for the plaintiff's wasteful dissipation of marital assets.

ORDERED that the judgment of divorce is modified, on the law, by adding to paragraph E, subparagraph c thereof, under the heading “EQUITABLE DISTRIBUTION,” immediately following the words “shall be divided between the parties,” the words, “with 60% to the Plaintiff and 40% to the Defendant”; as so modified, the judgment is affirmed insofar as appealed from, without costs or disbursements.

The parties were married on June 30, 1984. At that time, the defendant had a high school diploma. During the course of the marriage, she enrolled in college and earned a bachelor's degree in 2000 or 2001. Since that time, she has worked in the field of chemistry.

When the parties married, they first lived in a house that was owned by the plaintiff and his brother. In 1996, the plaintiff purchased a vacant parcel of property with a purchase money mortgage of $55,000 and approximately $30,000 cash. Thereafter, the plaintiff obtained a $165,000 mortgage on the property and used the proceeds to satisfy the initial mortgage and to help cover the cost of constructing a new house on the property. In 1997, the house owned by the plaintiff and his brother was sold, and, according to the plaintiff, his share of the proceeds from the sale went toward the cost of constructing the new house, which became the marital residence.

During the marriage, the parties shared a joint bank account into which they deposited their incomes and from which they paid their bills, including the mortgage and property taxes on the house owned by the plaintiff and his brother. The mortgage and taxes on the marital residence were also paid with marital funds.

In March 2011, the defendant moved out of the marital residence. In May 2012, the plaintiff commenced this action for a divorce and ancillary relief. In early 2012, prior to the commencement of this action, the plaintiff liquidated a retirement account and obtained a $250,000 mortgage on the marital residence. He used $100,000 of the mortgage proceeds to repay his sister-in-law, who had lent him that amount of money to pay off the previous mortgage on the marital residence.

The Supreme Court held a nonjury trial on certain financial issues, including equitable distribution of the marital property. Conflicting evidence was presented as to the current valuation of the marital residence: the plaintiff contended that its value ranged from $450,000 to $475,000, and the defendant contended that the value was $709,200. Following the trial, the court, as relevant to this appeal, determined that the plaintiff was not entitled to a credit for any enhanced earning capacity arising from the bachelor's degree the defendant earned during the marriage; directed that the marital residence be sold and that any remaining proceeds, after payment of costs associated with the sale and the payment of a $50,000 separate property credit to the plaintiff, be divided between the parties, with the plaintiff to pay off any remaining debt on the marital residence out of his share; and awarded the defendant a credit for the plaintiff's wasteful dissipation of marital assets. The plaintiff appeals.

The plaintiff's contention that he should have received a credit for the value of the defendant's enhanced earning capacity relating to her bachelor's degree is without merit. The plaintiff did not establish the actual value of the defendant's enhanced earning capacity (see e.g. McSparron v. McSparron, 87 N.Y.2d 275, 286, 639 N.Y.S.2d 265, 662 N.E.2d 745 ), and he did not demonstrate that he substantially contributed to the defendant's acquisition of that degree (see Higgins v. Higgins, 50 A.D.3d 852, 853, 857 N.Y.S.2d 171 ). Thus, the Supreme Court providently exercised its discretion in determining that the plaintiff was not entitled to a credit for the defendant's enhanced earning capacity.

The Supreme Court also properly determined that the marital residence, which was purchased during the marriage, was marital property (see Domestic Relations Law § 236[B][1][c] ; Murphy v. Murphy, 4 A.D.3d 460, 461, 772 N.Y.S.2d 355 ). “[W]here one spouse contributed monies derived from separate property toward the acquisition of the...