Brough v. Brough

285 A.D.2d 913, 727 N.Y.S.2d 555, 2001 N.Y. App. Div. LEXIS 7621
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 26, 2001
StatusPublished
Cited by32 cases

This text of 285 A.D.2d 913 (Brough v. Brough) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Brough v. Brough, 285 A.D.2d 913, 727 N.Y.S.2d 555, 2001 N.Y. App. Div. LEXIS 7621 (N.Y. Ct. App. 2001).

Opinion

—Lahtinen, J.

Cross appeals from a judgment of the Supreme Court (Fromer, J.H.O.) ordering, inter alia, equitable distribution of the parties’ marital property, entered April 17, 2000 in Ulster County, upon a decision of the court.

The parties were married in September 1976, while both were in the military. They have two daughters, Jamie (born in 1978) and Lucy (born in 1984). Plaintiff eventually became employed as a correction officer with the Department of Correctional Services and defendant obtained her undergraduate and Master’s degrees (hereinafter her teaching degree) and permanent teaching certification (hereinafter her license) during the course of the marriage and has been a full-time teacher since 1987. This action for divorce was commenced in October 1998 and was tried by the court in September 1999. During the trial the parties entered into stipulations resolving all issues except the valuation and equitable distribution of the marital residence, the valuation and equitable distribution of defendant’s teaching degree and license and the respective responsibility of each party for the payment of college expenses for their oldest child.

Following trial on the remaining issues, Supreme Court ordered equitable distribution of the marital residence and denied equitable distribution of defendant’s teaching degree [914]*914and license. The court did not address the issue of payment of college expenses for their oldest daughter. The court signed findings of fact and conclusions of law and the judgment of divorce on April 7, 2000. Each party timely filed a notice of appeal from the judgment.1

On appeal, plaintiff argues that he is entitled to a distributive share of defendant’s enhanced earnings resulting from defendant’s teaching degree and license, while defendant claims that plaintiff should be required to pay one half of the college expenses incurred for their older daughter prior to her 21st birthday.

Defendant concedes that her teaching degree and license are marital property (see, Domestic Relations Law § 236 [B] [1] [c]; O’Brien v O’Brien, 66 NY2d 576; Lapham v Ruflin, 241 AD2d 969, 970; Di Caprio v Di Caprio, 162 AD2d 944, 945, lv denied 77 NY2d 802), which requires that they “be distributed equitably between the parties” (Domestic Relations Law § 236 [B] [5] [c]). Since actual distribution of this type of marital asset would prove impractical, courts have fashioned distributive awards in such cases, consisting of the value of the enhanced earning capacity the asset affords the titled spouse (see, Morales v Morales, 230 AD2d 895, 896, lv denied 90 NY2d 804; see generally, O’Brien v O’Brien, supra; McGowan v McGowan, 142 AD2d 355). However, there is no requirement that marital assets be divided equally (see, Arvantides v Arvantides, 64 NY2d 1033, 1034), but some semblance of parity must be achieved (see, Suydam v Suydam, 203 AD2d 806, 808, lv dismissed 84 NY2d 923). We note that it is also incumbent upon the non-titled party seeking a distributive share of such assets to demonstrate that they made a substantial contribution to the titled party’s acquisition of that marital asset (see, Duspiva v Duspiva, 181 AD2d 810, 811, lv denied 80 NY2d 752; see also, Mallet v Mallet, 246 AD2d 904, 905, lv dismissed 91 NY2d 1002). In determining whether the nontitled spouse made a substantial contribution, our review is not limited to the nontitled spouse’s direct financial contributions to the acquisition of the assets, but must include all forms of contribution to “the eco[915]*915nomic partnership that characterizes” a marriage (McSparron v McSparron, 87 NY2d 275, 281; see, Phelps v Phelps, 199 AD2d 608, 609). Our review of the record leads us to conclude that plaintiff made such a showing.

During this long-term marriage of over 20 years, both parties worked at a variety of jobs, becoming “full and contributing marital partners” (Suydam v Suydam, supra, at 808), except for the period from 1983 to 1986 when defendant became a full-time student and obtained her undergraduate degree. While teaching full time, she thereafter obtained her Master’s degree in August 1990. During those entire periods, however, plaintiff worked full time on the third shift as a correction officer, was in the National Guard and operated a landscaping business, providing income for the family which then included their two daughters. Defendant agreed that plaintiff assisted with child care during her schooling as plaintiff had testified. Plaintiff also testified that he assisted defendant with her studies, purchased a computer for her schoolwork, took care of the household and was able to do this because, by working the midnight shift, he was often able to get sleep at work. He further testified that a portion of the cost of defendant’s schooling was paid for by their savings and his income. Defendant disputed plaintiff’s claimed monetary contributions to her education, providing proof that her military benefit provided $7,225 more than the total cost of her undergraduate tuition over that period (1983 to 1986).

It is clear from the proof that for the period of the marriage that defendant withdrew from the labor force to attend school full time, plaintiff provided the necessary monetary support to sustain the family unit from the income from his employment. In addition, defendant concedes that plaintiff made other nonmonetary contributions, however modest, which enabled her to attain her goal of earning a permanent teaching certificate.

An equitable distribution determination involves consideration of the respective financial conditions of the parties, the circumstances of the case and the factors enumerated in Domestic Relations Law § 236 (B) (5) (d) (see, Carlson-Subik v Subik, 257 AD2d 859, 862). Many of those statutory factors are addressed in our discussion relating to plaintiff’s entitlement to a distributive award of defendant’s enhanced earnings. We also note that the parties’ stipulation equitably distributed their respective pensions in accordance with the formula set forth in Majauskas v Majauskas (61 NY2d 481) and there was no disagreement regarding plaintiff receiving the marital resi[916]*916dence upon payment to defendant of her share of the equity therein. The parties had relatively similar incomes at the time of the divorce, there was no award of maintenance, and no proof of any dissipation or transfer of any significant asset is found in the record. These additional factors provide further support for our conclusion that plaintiff is entitled to a distributive award based on defendant’s enhanced earnings (see, e.g., Di Caprio v Di Caprio, 162 AD2d 944, supra; McGowan v McGowan, 142 AD2d 355, supra).

In determining the amount of plaintiffs distributive award, we first note that while plaintiffs modest contributions to defendant’s realization of her teaching license entitle him, under our law (see, e.g., O’Brien v O’Brien, 66 NY2d 576, supra), to share in the benefits of same, defendant’s accomplishments cannot be minimized and the record amply demonstrates that her degrees and license were obtained “through her own ability and herculean effort” (Mallet v Mallet, 246 AD2d 904, 905, supra), “as well as [her] own capacity for hard work” (Gandhi v Gandhi, 283 AD2d 782, 785).

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Bluebook (online)
285 A.D.2d 913, 727 N.Y.S.2d 555, 2001 N.Y. App. Div. LEXIS 7621, Counsel Stack Legal Research, https://law.counselstack.com/opinion/brough-v-brough-nyappdiv-2001.