OCHS v. OCHS (2007)

In an action for a divorce and ancillary relief, the defendant appeals, as limited by her brief, from (1) stated portions of an order of the Supreme Court, Westchester County (Donovan, J.), dated September 29, 2005, and (2) a resettled judgment of the same court entered November 29, 2005, which, upon the order, awarded her $1,500 in monthly child support, and the plaintiff cross-appeals, as limited by his notice of appeal and brief, from (1) stated portions of the order, and (2) stated portions of the resettled judgment which, inter alia, awarded the defendant 50% of the value of his law degree and license as enhanced earnings.

ORDERED the appeal and cross appeal from the order dated September 29, 2005, are dismissed;  and it is further,

ORDERED that the resettled judgment entered November 29, 2005, is modified, on the facts, by deleting the provision thereof awarding the defendant 50% of the value of the plaintiff's law degree and license and substituting therefor a provision awarding the defendant 25% of the value of the plaintiff's law degree;  as so modified, the resettled judgment is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

The appeal and cross appeal from the intermediate order must be dismissed because the right of direct appeal and cross appeal therefrom terminated with the entry of judgment in the action (see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647).   The issues raised on the appeal and cross appeal from the order are brought up for review and have been considered on the appeal and cross appeal from the resettled judgment (see CPLR 5501[a][1] ).

The Supreme Court was not required to apply the statutory percentages found in the Child Support Standards Act to the entire amount of combined family income (see Jordan v. Jordan, 8 A.D.3d 444, 779 N.Y.S.2d 121;  Poli v. Poli, 286 A.D.2d 720, 730 N.Y.S.2d 168).   In addition, in calculating the amount of child support, the court properly considered factors such as a shared custody arrangement (see Bast v. Rossoff, 91 N.Y.2d 723, 730-732, 675 N.Y.S.2d 19, 697 N.E.2d 1009;  Gainey v. Gainey, 303 A.D.2d 628, 756 N.Y.S.2d 647;  but see Mendenhall v. Mendenhall, 4 A.D.3d 344, 770 N.Y.S.2d 885).

The defendant, who supported the plaintiff during his last year and a half of law school, was entitled to a share of the enhanced earning capability represented by the plaintiff's law degree and license (see McSparron v. McSparron, 87 N.Y.2d 275, 286, 639 N.Y.S.2d 265, 662 N.E.2d 745;  O'Brien v. O'Brien, 66 N.Y.2d 576, 588, 498 N.Y.S.2d 743, 489 N.E.2d 712;  Vainchenker v. Vainchenker, 242 A.D.2d 620, 621, 662 N.Y.S.2d 545).   However, as the record does not indicate that, by so doing, the defendant sacrificed any educational or employment opportunities, the defendant should have been awarded 25% of the plaintiff's enhanced earnings (see Holterman v. Holterman, 3 N.Y.3d 1, 781 N.Y.S.2d 458, 814 N.E.2d 765;  Chamberlain v. Chamberlain, 24 A.D.3d 589, 808 N.Y.S.2d 352;  Miklos v. Miklos, 9 A.D.3d 397, 780 N.Y.S.2d 622;  Pocchia v. Pocchia, 288 A.D.2d 282, 732 N.Y.S.2d 876).

The parties' remaining contentions are without merit.