CIPOLLA v. CIPOLLA (2016)

By Notice of Motion, dated June 27, 2016, the Defendant, Merry Jo Cipolla, seeks an order directing the Plaintiff, Anthony J. Cipolla, to produce documents set forth in a letter dated June 1, 2016, to pay attorney fees in the amount of $5,000.00, to produce documents concerning the cost of medical insurance coverage for the parties' daughter through his place of employment, and to pay the sum of $3,000.00 to be used to retain an expert for the valuation of the Plaintiff's “book of business” through his employment as a financial advisor/stockbroker with Morgan Stanley. In response, the Plaintiff has cross moved for partial summary declaring the Plaintiff's “book of business” is not a marital asset subject to equitable distribution.

This is an action for divorce commenced on July 21, 2015. There is one child of the marriage, M., born xx/xx/1997. According to the Defendant's Statement of Net Worth and 2014 W-2 forms, the Plaintiff works as a financial advisor/stockbroker for Morgan Stanley with earnings of $354,519.20 while the Defendant earned $78,419.26 as a school teacher but has recently retired after having worked 32 years.

It is undisputed that the Plaintiff obtained various financial licenses prior to the marriage. It is also undisputed that the customer accounts from which the Plaintiff derives his income belong solely to Morgan Stanley. However, the Defendant is seeking to value the Plaintiff's “book of business” as an asset and/or as goodwill separate and distinct from the Plaintiff's education and license. In support of her position, the Defendant points to Moll v. Moll, where the court held that a husband's career as a stockbroker and financial advisor carried with it “significant goodwill in the form of his ‘book of business’ ” (187 Misc 2d 770 [Sup. Ct. Monroe Co] ). The court went onto conclude that the “book of business” was a marital asset to be valued and subject to equitable distribution Id. In response, the Plaintiff cites West v. West., where the Appellate Division, Fourth Department, held that the value of the license or degree is “ “the enhanced earning capacity it affords the holder” (213 AD2d 1025 [4th Dept 1995] ). The Appellate Division further found that the husband who worked as a banker was not engaged in a “unique career” like a “celebrity” where “goodwill” could be classified as marital property subject to equitable distribution. Like Mr. West, the Plaintiff argues that a career as a financial advisor/stockbroker fails to meet the standard of “unique.” This Court agrees. The Court also notes that it is bound to follow our Appellate Division's prior decisional precedent notwithstanding the ruling set forth in the Moll case.

Accordingly, the Plaintiff's request for partial summary declaring that the Plaintiff's “book of business” is not a marital asset subject to equitable distribution is granted. The Defendant's motion is denied except as to the requests for the Plaintiff to produce documents cited in the letter dated June 1, 2016 by Defendant's attorney as well as information concerning the cost of medical insurance coverage for the parties' daughter through his place of employment which are granted. Such documents are to be to produced by August 31, 2016. Further, the Court grants the Defendant's request for attorney fees in the sum of $5,000.00 given the gross disparity in the parties' incomes (see, Carlin v. Carlin, 120 AD3d 734 [2nd Dept 2014] ).

The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.

This Decision constitutes the Order of this Court and shall be filed as such.

Ralph A. Boniello III, J.