Small v. Small

227 A.D.2d 949, 643 N.Y.S.2d 842, 1996 N.Y. App. Div. LEXIS 6873

Opinion

Judgment unanimously affirmed without costs. Memorandum: Upon our review of the record, we conclude that there is sufficient evidence to support a finding of cruel and inhuman treatment (see, Reck v Reck, 149 AD2d 934). We further conclude that Supreme Court properly refused to award defendant a share of plaintiff's enhanced earning capacity resulting from the nursing degree earned by plaintiff during the marriage (see, McAlpine v McAlpine, 176 AD2d 285). Plaintiff was in her final year of nursing school when the parties were married. Defendant testified that he was in the Navy when the parties were first married and does not know who paid the tuition for plaintiffs last year of school. Plaintiff testified that she had a stipend from the State while she studied nursing and that she believed that her mother paid her tuition that year. Thus, defendant failed to show that he made any substantial contribution to plaintiff’s acquisition of that degree.

We have considered the remaining arguments raised by defendant and conclude that they are without merit. (Appeal from Judgment of Supreme Court, Oneida County, Tenney, J. — Divorce.) Present — Lawton, J. P., Fallon, Callahan, Doerr and Davis, JJ.