Smith v. Smith

Appellate Division of the Supreme Court of New York

Smith v. Smith

227 A.D.2d 891, 643 N.Y.S.2d 274, 1996 N.Y. App. Div. LEXIS 6780

CourtAppellate Division of the Supreme Court of the State of New York

DecidedMay 31, 1996

StatusPublished

This text of 227 A.D.2d 891 (Smith v. Smith) 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

Smith v. Smith, 227 A.D.2d 891, 643 N.Y.S.2d 274, 1996 N.Y. App. Div. LEXIS 6780 (N.Y. Ct. App. 1996).

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Opinion

Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in refusing to award plaintiff a distributive share of defendant’s enhanced earning capacity, resulting from the bachelor’s degree in the Technology Computer Science Program at Rochester Institute of Technology defendant earned during the marriage (see, DiCaprio v DiCaprio, 162 AD2d 944, lv denied 77 NY2d 802; Finocchio v Finocchio, 162 AD2d 1044). Plaintiff’s expert testified that, based upon a salary of $75,000, the value of defendant’s enhanced future earnings was $318,565. That valuation figure is "realistic and reasonable” (DiCaprio v DiCaprio, supra, at 946). In light of plaintiff’s financial and other contributions to the marriage, which made it possible for defendant to attain his degree, we conclude that plaintiff is entitled to 50% of defendant’s future enhanced earnings. Consequently, we modify the judgment by vacating the second decretal paragraph and awarding plaintiff $159,282.50, representing her equitable share of defendant’s enhanced earnings, plus 9% interest per annum on that amount, pursuant to CPLR 5004, commencing from the date of entry of the judgment (see, Kessler v Kessler, 212 AD2d 1038). (Appeal from Judgment of Supreme Court, Monroe County, Frazee, J.— Enhanced Earnings.) Present — Denman, P. J., Pine, Fallon, Wesley and Balio, JJ.

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Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in refusing to award plaintiff a distributive share of defendant’s enhanced earning capacity, resulting from the bachelor’s degree in the Technology Computer Science Program at Rochester Institute of Technology defendant earned during the marriage (see, DiCaprio v DiCaprio, 162 AD2d 944, lv denied 77 NY2d 802; Finocchio v Finocchio, 162 AD2d 1044). Plaintiff’s expert testified that, based upon a salary of $75,000, the value of defendant’s enhanced future earnings was $318,565. That valuation figure is "realistic and reasonable” (DiCaprio v DiCaprio, supra, at 946). In light of plaintiff’s financial and other contributions to the marriage, which made it possible for defendant to attain his degree, we conclude that plaintiff is entitled to 50% of defendant’s future enhanced earnings. Consequently, we modify the judgment by vacating the second decretal paragraph and awarding plaintiff $159,282.50, representing her equitable share of defendant’s enhanced earnings, plus 9% interest per annum on that amount, pursuant to CPLR 5004, commencing from the date of entry of the judgment (see, Kessler v Kessler, 212 AD2d 1038). (Appeal from Judgment of Supreme Court, Monroe County, Frazee, J.— Enhanced Earnings.) Present — Denman, P. J., Pine, Fallon, Wesley and Balio, JJ.

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Bluebook (online)

227 A.D.2d 891, 643 N.Y.S.2d 274, 1996 N.Y. App. Div. LEXIS 6780, Counsel Stack Legal Research, https://law.counselstack.com/opinion/smith-v-smith-nyappdiv-1996.

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