Carman v. Carman

22 A.D.3d 1004, 802 N.Y.S.2d 558
CourtAppellate Division of the Supreme Court of the State of New York
DecidedOctober 27, 2005
StatusPublished
Cited by26 cases

This text of 22 A.D.3d 1004 (Carman v. Carman) 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
Carman v. Carman, 22 A.D.3d 1004, 802 N.Y.S.2d 558 (N.Y. Ct. App. 2005).

Opinion

Kane, J.

Cross appeals from a judgment of the Supreme Court (McNamara, J.), entered May 12, 2004 in Albany County, ordering, inter alia, equitable distribution of the parties’ marital property, upon a decision of the court.

The parties were married in August 1978 and have three children, two of whom are minors. In July 2001, plaintiff filed this divorce action. Following a bench trial and stipulation on certain issues, Supreme Court issued a decision and judgment which awarded plaintiff a divorce, granted joint legal custody as stipulated with primary physical custody to plaintiff, provided child support to plaintiff, awarded plaintiff maintenance of $1,000 per month for 30 months, determined that 20% of the value of defendant’s license as a certified public accountant (hereinafter CPA) was marital property, valued defendant’s interest in his business and equally divided the marital property between the parties. Both parties appeal.

Supreme Court appropriately determined defendant’s child [1006]*1006support obligation with regard to combined parental income in excess of $80,000. Although the Child Support Standards Act does not provide for nor permit the inclusion or deduction of a distributive award when calculating parental income (see Holterman v Holterman, 3 NY3d 1, 11 [2004]; Domestic Relations Law § 240 [1-b]), because “a distributive award to be paid by one parent to the other pertains to the financial resources of the parties,” it is an appropriate factor to be considered by the court when determining the appropriate amount of child support for income in excess of $80,000 (Holterman v Holterman, supra at 14; see Domestic Relations Law § 240 [1-b] [c] [3]; [f] [1], [10]). Based on the parties’ modest predivorce standard of living, the lack of any special needs of the children, plaintiffs ability to return to work now that the children are in school, and the substantial assets available to plaintiff through distributive awards, the court did not abuse its discretion when it determined that only half of the combined parental income over $80,000 should be utilized in calculating the parties’ child support obligations.

Supreme Court properly considered 20% of defendant’s CPA license as marital property. Despite defendant’s disagreements with some of the bases for the joint forensic accounting expert’s opinion, that opinion was supported by the record. Before the marriage, defendant completed a Bachelor’s degree and almost one year of the required two years of practice. During the marriage, he finished the remaining practice period, took an exam preparation course and passed all portions of the CPA exam. The court reasonably accepted the expert’s 20% figure, representing one sixth of defendant’s education and practical experience with a slight increase for exam preparation and successful completion, as the marital portion of defendant’s enhanced earning capacity related to his CPA license.

While we agree with Supreme Court’s determination of the marital portion of defendant’s CPA license, the court erred in the distribution of that property. Although a portion of defendant’s CPA license is marital, equitable distribution does not require an equal division of marital property (see Farrell v Cleary-Farrell, 306 AD2d 597, 599 [2003]). Plaintiff, as the nontitled spouse seeking a share of enhanced earning capacity, bore the burden of demonstrating that she made a substantial contribution to defendant’s acquisition of the license (see id. at 599; Brough v Brough, 285 AD2d 913, 914 [2001]). “Where only modest contributions are made by the nontitled spouse toward the other spouse’s attainment of a degree or professional license, and the attainment is more directly the result of the titled [1007]*1007spouse’s own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity” (Farrell v Cleary-Farrell, supra at 599 [citations omitted]; see Corasanti v Corasanti, 296 AD2d 831, 832 [2002]; Brough v Brough, supra at 916). Here, defendant obtained his college degree and completed almost half of his two-year practice requirement before the marriage. He completed the second year of practice during the marriage, but that experience was earned through a job where he was gainfully employed, earning money to support the parties as a couple. The exam preparatory course lasted less than two months and was a review of his college work. During this time, plaintiff was also employed full time. While plaintiff performed household chores and provided an environment for defendant to study, this can be seen more as overall contributions to the marriage rather than an additional effort to support defendant in obtaining his license (see Gandhi v Gandhi, 283 AD2d 782, 785 [2001]). As plaintiffs own testimony indicated that she did not substantially alter her schedule due to defendant’s studying for his CPA exam and licensure, it would be inequitable to award plaintiff half of defendant’s enhanced earning capacity related to his CPA license (see Farrell v Cleary-Farrell, supra at 599; Gandhi v Gandhi, supra). Based on plaintiffs limited contribution to defendant’s acquisition of this asset, her equitable share of the marital portion of defendant’s CPA license is 20%.

Considering all of the appropriate factors, Supreme Court properly divided the remaining marital assets equally, including defendant’s interest in his business (see Domestic Relations Law § 236 [B] [5]). The marriage was of long duration, the parties are relatively young, both parties have college degrees, they had no assets at the time of the marriage, plaintiff has primary physical custody of the two minor children, and both parties worked initially but plaintiff stayed home to care for the children after the youngest child was born. Under the circumstances, the court did not abuse its discretion in equally distributing the parties’ remaining marital assets (see Owens v Owens, 288 AD2d 782, 783 [2001]).

The increase in value of defendant’s annuity account was correctly classified as marital property. Defendant used his financial planning and accounting expertise to manage that account, even if only a few times a year, directly and actively contributing to the appreciation in value of that account (see Spencer v Spencer, 230 AD2d 645, 647 [1996]). Accordingly, under the circumstances, plaintiff was entitled to equitable distribution of the account’s increase in value (see Miller v Miller, 4 AD3d 718, 719 [1008]*1008[2004]; Spencer v Spencer, supra at 647). Contrary to defendant’s claim that his separate contribution to the account was $15,000, the record only established an initial contribution of $5,000, as found by Supreme Court.

Regarding defendant’s claim that he is entitled to a credit for moneys that plaintiff borrowed against the home equity line of credit after the commencement of this divorce action, plaintiff testified that this money was not for personal expenses but was expended on marital expenses such as the children and marital residence. Because defendant was ordered to pay retroactive child support and maintenance, which presumably would have been applied toward these marital expenses, he is. entitled to a credit for half the amount of funds borrowed from the home equity line of credit.

Supreme Court failed to consider all of the tax impacts to the parties. Courts are required to consider the tax consequences in fashioning equitable distribution (see

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Bluebook (online)
22 A.D.3d 1004, 802 N.Y.S.2d 558, Counsel Stack Legal Research, https://law.counselstack.com/opinion/carman-v-carman-nyappdiv-2005.