Martinson v. Martinson , 821 N.Y.S.2d 537 ( 2006 )

Appeal from a judgment of the Supreme Court, Jefferson County (Richard V Hunt, A.J.), entered June 20, 2005 in a divorce action. The judgment, among other things, distributed the marital assets.

It is hereby ordered that the judgment so appealed from be and the same hereby is modified on the law by vacating the 48th decretal paragraph and providing that plaintiff is directed to pay defendant $21,472 for her share of plaintiffs enhanced earning capacity, with interest at the rate of 9% per annum from February 4, 2005, and as modified the judgment is affirmed without costs, and the matter is remitted to Supreme Court, Jefferson County, for further proceedings in accordance with the following memorandum: On appeal from a judgment in an action for divorce and ancillary relief, plaintiff contends that Supreme Court erred in its distribution of certain marital assets, including the parties’ tax refund, a tax relief check, and the money remaining in an account set up for the parties’ children. It is well settled that the provision in Domestic Relations Law § 236 (B) (5) (c) that marital property be “distributed equitably between the parties” does not require equal distribution (see Arvantides v Arvantides, 64 NY2d 1033, 1034 [1985]). “Moreover, the trial court is vested with broad discretion in making an equitable distribution of marital property and, absent an abuse of discretion, its determination will not be disturbed” (Bossard v Bossard, 199 AD2d 971, 971 [1993]). Here, the parties stipulated to the disposition of certain assets, and the record establishes that the court properly considered the factors set forth in Domestic Relations Law 0 236 (B) (5) (d), including defendant’s waste of marital assets, in distributing the named assets. Plaintiff failed to establish that the court abused its discretion in distributing those assets.

We agree with plaintiff, however, that the court erred in awarding defendant 40% of the value of the marital portion of plaintiff’s enhanced earning capacity arising from plaintiffs obtaining, during the marriage, a license to practice as a physician’s assistant. In light of defendant’s modest contribution to the attainment of plaintiffs license, we conclude that the court should have awarded defendant only 20% of the value of the marital portion of plaintiffs enhanced earning capacity (see Schiffmacher v Schiffmacher, 21 AD3d 1386, 1387 [2005]). Consequently, we modify the judgment by vacating the 48th decretal paragraph and providing that plaintiff is directed to pay defendant $21,472 for her share of plaintiff’s enhanced earning capacity, with interest at the rate of 9% per annum from February 4, 2005, and we remit the matter to Supreme Court to determine the duration and minimum amount to be paid per month on that amount.

All concur except Hayes, J., who is not participating, and Kehoe, J., who dissents in part and votes to affirm in the following memorandum.