Spinner v. Spinner, 2017-08790

CourtNew York Supreme Court Appellate Division
Citation134 N.Y.S.3d 377,188 A.D.3d 748
Docket NumberIndex No. 9613/12,2017-08790
Parties Warren D. SPINNER, Appellant, v. Carol R. SPINNER, Respondent.
Decision Date04 November 2020

188 A.D.3d 748
134 N.Y.S.3d 377

Warren D. SPINNER, Appellant,
v.
Carol R. SPINNER, Respondent.

2017-08790
Index No. 9613/12

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

Submitted—September 8, 2020
November 4, 2020


134 N.Y.S.3d 380

Moran & Brodrick, Garden City, N.Y. (Robert H. Brodrick of counsel), for appellant.

Robert E. Hornberger, Esq., P.C., Melville, NY, for respondent.

RUTH C. BALKIN, J.P., LEONARD B. AUSTIN, HECTOR D. LASALLE, ANGELA G. IANNACCI, JJ.

DECISION & ORDER

In an action for a divorce and ancillary relief, the plaintiff appeals, by permission, from an order of the Supreme Court, Suffolk County (Carol Mackenzie, J.), dated July 27, 2017. The order, insofar as appealed from, after a nonjury trial, determined the equitable distribution of the plaintiff's enhanced earning capacity, directed the plaintiff to pay child support in the sum of $1,769.23 per week, directed the plaintiff to pay 92% of the costs of extracurricular activities of the parties' children, up to a maximum of $15,000 per year, and directed the plaintiff to pay 92% of the college expenses of the parties' children.

ORDERED that the order is modified, on the law and the facts, (1) by deleting the provision thereof awarding the defendant a distributive award of $1,351,500 payable in five annual installments commencing on October 1, 2017, and payable each October 1st thereafter, with statutory interest to apply after October 1, 2017, and substituting therefor a provision awarding the defendant a distributive award of $1,293,622.50, which the plaintiff may pay in equal annual installments over a period of 10 years, together with interest at the statutory rate of 9% per annum on each year's unpaid balance, with the first payment due on January 1, 2021, with interest from the date of the order appealed from, and all subsequent payments due on January 1st each year thereafter, and directing that, in the event the plaintiff fails to make timely payment when each annual installment is due, a money judgment may be entered for the entire unpaid portion of the distributive award, inclusive of interest earned from the date of the order appealed from until that time, (2) by deleting the provisions thereof limiting the combined parental income to $400,000 and directing the plaintiff to pay child support in the sum of $1,769.23 per week, and substituting therefor provisions limiting the combined parental income to $250,000 and directing the plaintiff to pay child support in the sum of $1,105.77 per week, and (3) by deleting the provision thereof directing the plaintiff to pay 92% and the defendant to pay 8% of the college expenses of the parties' children, and substituting therefor a provision directing the plaintiff to pay 92% and the defendant to pay 8% of the college expenses of the parties' older child after the funds in that child's 529 College Savings Account are exhausted with a credit against, or a reduction of, the plaintiff's child support obligation if that child resides away from home while attending college for any amounts that the plaintiff contributes toward college room and board expenses for that child during those months; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

134 N.Y.S.3d 381

The parties were married in 1998, and have two children in common. During the course of the marriage, the plaintiff attended and graduated from medical school, completed a five-year residency in internal medicine and neurology, and completed a clinical fellowship in neurophysiology. The plaintiff commenced this action in April 2012. After a nonjury trial, in an order dated July 27, 2017, the Supreme Court, inter alia, awarded the defendant a distributive share of the plaintiff's enhanced earning capacity and directed the plaintiff to pay (1) child support in the sum of $1,769.23 per week, (2) 92% of the cost of the children's extracurricular activities up to $15,000 per year, and (3) 92% of the children's college expenses. The plaintiff appeals.

"Once property is classified as marital or separate, the trial court has broad discretion to select an ‘appropriate date for measuring the value of [the] property’ " ( Mesholam v. Mesholam , 11 N.Y.3d 24, 28, 862 N.Y.S.2d 453, 892 N.E.2d 846, quoting McSparron v. McSparron , 87 N.Y.2d 275, 287, 639 N.Y.S.2d 265, 662 N.E.2d 745 ; see Giallo–Uvino v. Uvino , 165 A.D.3d 894, 895, 86 N.Y.S.3d 125 ). "A medical license is an active asset and should generally be valued as of the commencement date of the action, since any appreciation in value after that date is the product of the labors of the licensed spouse" ( Lipsky v. Lipsky , 276 A.D.2d 753, 754, 715 N.Y.S.2d 427 ). Here, the plaintiff's medical license and medical training enhanced his earning capacity. Although the plaintiff commenced the action in April 2012, there is no evidence that his income changed at any time between the commencement of the action and the end of 2012. Accordingly, the Supreme Court providently exercised its discretion in determining the value of the plaintiff's enhanced earning capacity based on his 2012 earnings (see Lipsky v. Lipsky , 276 A.D.2d at 754, 715 N.Y.S.2d 427 ; see also Levy v. Levy , 39 A.D.3d 487, 488, 835 N.Y.S.2d 228 ; cf Judge v. Judge , 48 A.D.3d 424, 425, 851 N.Y.S.2d 639 ).

We agree with the Supreme Court's determination that the defendant was entitled to a 25% share of the plaintiff's enhanced earning capacity from his medical education and training, which he obtained during the course of the marriage (see O'Brien v. O'Brien , 66 N.Y.2d 576, 585–588, 498 N.Y.S.2d 743, 489 N.E.2d 712 ; cf. , Elsayed v. Edrees , 141 A.D.3d 503, 505, 35 N.Y.S.3d 411 ). The plaintiff's student loans were paid with marital funds, and the defendant made substantial contributions by, inter alia, supporting his educational endeavors, working from the time of the marriage in June 1998 until she started law school in September 2001 and again from September 2008 until May 2011, contributing her earnings to the family, being the primary caregiver of the parties' two children, cooking family meals, and participating in...

To continue reading

Request your trial
3 practice notes
  • Seabring, LLC v. Elegance Rest. Furniture Corp., 2017–11529
    • United States
    • New York Supreme Court Appellate Division
    • November 4, 2020
    ...for the sum of $60,189.19 for "holdover rent" and other expenses for the period from April 16, 2013, through July 31, 2013.188 A.D.3d 748 Lastly, we disagree with the Supreme Court's determination that Yuan was obligated to pay the sum of $78,562.34 for "holdover rent and add......
  • Bari v. Bari, 2021-06980
    • United States
    • United States State Supreme Court (New York)
    • December 15, 2021
    ...based upon the number of children to be supported, to combined parental income up to a particular ceiling'" (Spinner v Spinner, 188 A.D.3d 748, 751, quoting Matter of Freeman v Freeman, 71 A.D.3d 1143, 1144; see Domestic Relations Law § 240[1-b][c]; Holterman v Holterman, 3 N.Y.3d 1, 1......
  • Bari v. Bari, 2018-10550
    • United States
    • United States State Supreme Court (New York)
    • December 15, 2021
    ...based upon the number of children to be supported, to combined parental income up to a particular ceiling'" (Spinner v Spinner, 188 A.D.3d 748, 751, quoting Matter of Freeman v Freeman, 71 A.D.3d 1143, 1144; see Domestic Relations Law § 240[1-b][c]; Holterman v Holterman, 3 N.Y.3d 1, 1......
3 cases
  • Seabring, LLC v. Elegance Rest. Furniture Corp., 2017–11529
    • United States
    • New York Supreme Court Appellate Division
    • November 4, 2020
    ...for the sum of $60,189.19 for "holdover rent" and other expenses for the period from April 16, 2013, through July 31, 2013.188 A.D.3d 748 Lastly, we disagree with the Supreme Court's determination that Yuan was obligated to pay the sum of $78,562.34 for "holdover rent and add......
  • Bari v. Bari, 2021-06980
    • United States
    • United States State Supreme Court (New York)
    • December 15, 2021
    ...based upon the number of children to be supported, to combined parental income up to a particular ceiling'" (Spinner v Spinner, 188 A.D.3d 748, 751, quoting Matter of Freeman v Freeman, 71 A.D.3d 1143, 1144; see Domestic Relations Law § 240[1-b][c]; Holterman v Holterman, 3 N.Y.3d 1, 1......
  • Bari v. Bari, 2018-10550
    • United States
    • United States State Supreme Court (New York)
    • December 15, 2021
    ...based upon the number of children to be supported, to combined parental income up to a particular ceiling'" (Spinner v Spinner, 188 A.D.3d 748, 751, quoting Matter of Freeman v Freeman, 71 A.D.3d 1143, 1144; see Domestic Relations Law § 240[1-b][c]; Holterman v Holterman, 3 N.Y.3d 1, 1......

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT