WILLETS v. WILLETS

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Supreme Court, Appellate Division, First Department, New York.

Juliet A. WILLETS, Plaintiff-Appellant-Respondent, v. David WILLETS, Defendant-Respondent-Appellant.

Decided: February 19, 1998

Before ELLERIN, J.P., and NARDELLI, MAZZARELLI and ANDRIAS, JJ. Elliot D. Samuelson, for Juliet A. Willets. Charles E. Knapp, for David Willets.

Judgment, Supreme Court, New York County (Lewis Friedman, J.), entered November 14, 1996, inter alia, equitably distributing the parties' property, unanimously affirmed, without costs.

 Concerning the wife's appeal in this action involving a marriage of four years duration, we agree with the trial court that there should be no award to her for nondurational maintenance or loss of earning capacity (see, Wilson v. Wilson, 101 A.D.2d 536, 541-542, 476 N.Y.S.2d 120, lv. denied 64 N.Y.2d 607, 487 N.Y.S.2d 1027, 476 N.E.2d 1006);  that the husband's skills existed prior to the marriage, and that his employment during the marriage did not enhance his postmarriage earning capacity.   There is therefore no merit to the wife's claim that the Domestic Relations Law violates her right to equal protection in not considering the husband's on-the-job training as earning-enhancement marital property.   We also agree with the trial court that the husband's retirement stock options and incentive stock options were awarded for his premarital work performance on certain deals;  that the husband paid for the marital home with separate, premarital funds, and that no net assets were available for purposes of equitable distribution following the sale of the home and a credit to the husband for his separate funds (see, Lagnena v. Lagnena, 215 A.D.2d 445, 626 N.Y.S.2d 542);  that the husband did not engage in conduct so egregious as to warrant consideration in the distribution (see, O'Brien v. O'Brien, 66 N.Y.2d 576, 589-590, 498 N.Y.S.2d 743, 489 N.E.2d 712;  compare, Brancoveanu v. Brancoveanu, 145 A.D.2d 395, 398-399, 535 N.Y.S.2d 86, lv. dismissed 73 N.Y.2d 994, 540 N.Y.S.2d 1006, 538 N.E.2d 358);  that the award of $75,000 in legal fees was sufficient to enable the wife to defend the action (see, DeCabrera v. Cabrera-Rosete,, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168);  and that there should be no award for expert fees (cf., O'Brien v. O'Brien, supra, at 590, 498 N.Y.S.2d 743, 489 N.E.2d 712).   Concerning the husband's appeal, we agree with the trial court that the evidence demonstrated that his premarital payment of the mortgage on the wife's New Jersey property, and his premarital purchase of Manhattan apartments in the parties' joint names, constituted gifts (see, Jolis v. Jolis, 111 Misc.2d 965, 446 N.Y.S.2d 138, affd. 98 A.D.2d 692, 470 N.Y.S.2d 584), and that there could be no retroactive credit for overpayment of temporary maintenance attributable to the wife's return to work during the pendency of the action (see, Petek v. Petek, 239 A.D.2d 327, 657 N.Y.S.2d 738).   We have considered the parties' remaining claims for affirmative relief and find them to be without merit.

MEMORANDUM DECISION.