The First Department determined defendant wife was properly awarded a percentage of plaintiff husband’s enhanced earning capacity related to his medical license. Husband worked long hours and unpopular shifts as an anesthesiologist to earn double the average salary of his peers—over $800,000 per year at one point. Wife enabled husband’s intense work schedule by caring for the children and home. [The decision is extensive and covers many issues not summarized here]:
The party seeking distribution of an award based on the other party’s enhanced earning capacity must establish its value through expert testimony … . Defendant’s expert used a methodology that is commonly used when calculating the value of enhanced earning capacity … . Plaintiff’s disagreement with certain assumptions made by the expert was not a basis to simply disregard the expert’s opinion and treat it as a complete nullity. Some of plaintiff’s criticisms resulted in adjustments in value at trial. * * *
The court … properly exercised its discretion in making a distributive award equal to 10% of plaintiff’s enhanced earnings … . It is well-established law that both parties in a matrimonial action are entitled to “fundamental fairness in the allocation of marital assets, and that the economic and noneconomic contributions of each spouse are to be taken into account” …. . In reaching its decision the court below considered the statutory factors listed in Domestic Relations Law § 236, as well as the nontitled defendant spouse’s direct and/or indirect contributions to the marriage … .
… [P]laintiff was earning almost twice as much as other … doctors [in the firm] because he worked extraordinarily long hours, accepted unpopular shifts, like holidays, weekends and evenings, and was better compensated precisely because plaintiff kept this “totally unbalanced life.” By not adhering to a more balanced work schedule, plaintiff necessarily shifted primary responsibility for his home life to defendant. Although he may have borne equal, if not primary, responsibility for the children when he was home, this was often a physical impossibility, given his demanding work schedule. Defendant not only made it possible for plaintiff to work the grueling schedule that he kept, she also made sure plaintiff was able to study without interruption for the boards on two separate occasions. She did this by taking the children away to visit relatives and doing other things to keep them out of his way. Ning-Yen Yao v Karen Kao-Yao, 2017 NY Slip Op 01440, 1st Dept 2-23-17
FAMILY LAW (WIFE ENTITLED TO A PERCENTAGE OF HUSBAND’S ENHANCED EARNING CAPACITY BY ENABLING HUSBAND’S LONG WORKING HOURS AND HIS STUDY FOR MEDICAL BOARD EXAMS)/EQUITABLE DISTRIBUTION (WIFE ENTITLED TO A PERCENTAGE OF HUSBAND’S ENHANCED EARNING CAPACITY BY ENABLING HUSBAND’S LONG WORKING HOURS AND HIS STUDY FOR MEDICAL BOARD EXAMS)/ENHANCED EARNING CAPACITY (FAMILY LAW, EQUITABLE DISTRIBUTION, WIFE ENTITLED TO A PERCENTAGE OF HUSBAND’S ENHANCED EARNING CAPACITY BY ENABLING HUSBAND’S LONG WORKING HOURS AND HIS STUDY FOR MEDICAL BOARD EXAMS)