Ruo Mei Cai v. Victor Fai Lau , 19 N.Y.S.3d 412 ( 2015 )

Ruo Mei Cai v Victor Fai Lau (2015 NY Slip Op 08635)

Ruo Mei Cai v Victor Fai Lau

2015 NY Slip Op 08635

Decided on November 24, 2015

Appellate Division, First Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on November 24, 2015
Gonzalez, P.J., Tom, Mazzarelli, Manzanet-Daniels, JJ.

16216 309888/09

[*1] Ruo Mei Cai, Plaintiff-Respondent,

v

Victor Fai Lau, Defendant-Appellant.

Victor Fai Lau, appellant pro se.

Robert G. Smith, PLLC, New York (Robert G. Smith of counsel), for respondent.

Order, Supreme Court, New York County (Matthew F. Cooper, J.), entered June 30, 2014, which, after a trial, denied defendant husband any award for enhanced earning capacity and maintenance, unanimously affirmed, without costs.

The court properly exercised its discretion in denying the husband any award of a portion of the wife's enhanced earning capacity stemming from her United States medical license (see Holterman v Holterman, 3 NY3d 1, 8 [2004]; Domestic Relations Law §§ 236[B][5][c] and [d]; see also Del Villar v Del Villar, 73 AD3d 651 [1st Dept 2010]). The husband failed to show that he contributed to the wife's attainment of her license. Prior to the marriage, the wife completed medical school in China and had a medical license in China. Thus, the only marital property was her US medical license, and while the wife did not work from May 2004 to May 2007, as she studied for the exam, she supported herself with her own savings and financial support from her mother, and paid for the exam review course herself. Furthermore, even if the husband were entitled to an award based on the wife's enhanced earning capacity, he never established the value of such enhanced earning capacity, through expert testimony (see e.g. Heydt-Benjamin v Heydt-Benjamin, 127 AD3d 814, 815 [2d Dept 2015]).

The court providently exercised its discretion in denying the husband an award of maintenance after citing the relevant statutory factors and considering the parties' pre-divorce standard of living (see Domestic Relations Law § 236[B][6][a]; Alexander v Alexander, 116 AD3d 472, 473 [1st Dept 2014], appeal dismissed 24 NY3d 1050 [2014]). In particular, the wife works part-time while caring for her child from a subsequent marriage, and although the husband has been unemployed for several years, he has a degree in engineering and was previously employed by numerous companies, and appears capable of supporting himself.

The husband's remaining contentions lack any support in the record.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 24, 2015

CLERK