Smith v. Smith

¶1Judgment unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court erred in refusing to award plaintiff a distributive share of defendant’s enhanced earning capacity, resulting from the bachelor’s degree in the Technology Computer Science Program at Rochester Institute of Technology defendant earned during the marriage (see, DiCaprio v DiCaprio, 162 AD2d 944, lv denied 77 NY2d 802; Finocchio v Finocchio, 162 AD2d 1044). Plaintiff’s expert testified that, based upon a salary of $75,000, the value of defendant’s enhanced future earnings was $318,565. That valuation figure is "realistic and reasonable” (DiCaprio v DiCaprio, supra, at 946). In light of plaintiff’s financial and other contributions to the marriage, which made it possible for defendant to attain his degree, we conclude that plaintiff is entitled to 50% of defendant’s future enhanced earnings. Consequently, we modify the judgment by vacating the second decretal paragraph and awarding plaintiff $159,282.50, representing her equitable share of defendant’s enhanced earnings, plus 9% interest per annum on that amount, pursuant to CPLR 5004, commencing from the date of entry of the judgment (see, Kessler v Kessler, 212 AD2d 1038). (Appeal from Judgment of Supreme Court, Monroe County, Frazee, J.— Enhanced Earnings.) Present — Denman, P. J., Pine, Fallon, Wesley and Balio, JJ.