SCHIFFMACHER v. SCHIFFMACHER

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

Wendy SCHIFFMACHER, Plaintiff-Respondent, v. Peter M. SCHIFFMACHER, Defendant-Appellant.

Decided: September 30, 2005

PRESENT:  PIGOTT, JR., P.J., GREEN, GORSKI, SMITH, AND LAWTON, JJ. Eoannou, Lana & D'Amico, Buffalo (Jeremy D. Schwartz of Counsel), for Defendant-Appellant. Cole, Sorrentino, Hurley, Hewner & Gambino, P.C., Buffalo (Christopher M. Pannozzo of Counsel), for Plaintiff-Respondent.

 On appeal from a judgment in this divorce action, defendant contends that Supreme Court erred in awarding plaintiff 70% of the value of the parties' investment and savings accounts.   We reject that contention.   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 N.Y.2d 1033, 1034, 489 N.Y.S.2d 58, 478 N.E.2d 199).   In the absence of an abuse of discretion, we will not disturb the court's equitable distribution of that marital property (see Bossard v. Bossard, 199 A.D.2d 971, 606 N.Y.S.2d 474;  Elkaim v. Elkaim, 176 A.D.2d 116, 119, 574 N.Y.S.2d 2, appeal dismissed and lv. dismissed 78 N.Y.2d 1072, 576 N.Y.S.2d 222, 582 N.E.2d 605).   Here, the record establishes that the court properly considered the factors set forth in Domestic Relations Law § 236(B)(5)(d), including the fact that plaintiff's contributions to the parties' investments were significantly greater than defendant's contributions (see Niland v. Niland, 291 A.D.2d 876, 877, 737 N.Y.S.2d 214).

 We further reject the contention of defendant that the court erred in determining the value of his master's degree in business administration.  “The value of [the degree] may be measured by simply comparing the average lifetime income of a college graduate and the average lifetime earnings of a person holding such a [degree] and reducing the difference to its present value” (McSparron v. McSparron, 87 N.Y.2d 275, 286, 639 N.Y.S.2d 265, 662 N.E.2d 745, rearg. dismissed 88 N.Y.2d 916, 646 N.Y.S.2d 982, 670 N.E.2d 222).   Plaintiff's expert utilized that method in determining the value of defendant's degree, and defendant presented no expert testimony that would support a different valuation.   We agree with defendant, however, that the court erred in awarding plaintiff one half of the value of defendant's enhanced earning capacity arising from the degree.   In light of plaintiff's modest contributions to defendant's degree, we conclude that the court should have awarded plaintiff only 20% of the value of defendant's enhanced earning capacity (see generally Farrell v. Cleary-Farrell, 306 A.D.2d 597, 599, 761 N.Y.S.2d 357;  Barbuto v. Barbuto, 286 A.D.2d 741, 743, 730 N.Y.S.2d 532;  Brough v. Brough, 285 A.D.2d 913, 916, 727 N.Y.S.2d 555).   We therefore modify the judgment accordingly.

We have considered defendant's remaining contentions and conclude that they are without merit.

It is hereby ORDERED that the judgment so appealed from be and the same hereby is unanimously modified on the law by providing in the eighth decretal paragraph that plaintiff is awarded 20% of the value of defendant's enhanced earning capacity and as modified the judgment is affirmed without costs.

MEMORANDUM: