Semans v. Semans

Mikoll, J. (concurring in part and dissenting in part).

In deciding matters of fact such as the distribution of property pursuant to the equitable distribution scheme, the trial court’s determinations should not be disturbed unless the court abuses its discretion (see, Reina v Reina, 153 AD2d 775, 777). The enhanced earning capacity of a spouse acquired during marriage is a proper subject of equitable distribution (see, Domestic Relations Law § 236 [B] [5] [d] [6], [9]). Supreme Court properly determined that defendant’s Master’s degree is marital property because it is an item of economic value that was acquired during the marriage (see, O’Brien v O’Brien, 66 NY2d 576). A reading of the record supports the court’s finding that plaintiff is entitled to a distributive award of $130,000 for her contribution to defendant’s acquisition of a Master’s degree and the enhancement it produced as to his earning capacity.

*793The only evidence presented on the question was by plaintiffs expert, who testified that defendant’s Master’s degree is related to his being in a supervisory position and that defendant’s earnings now are equal to 97% of the earning of the top decile group of the most highly regarded supervisors. The total value of the enhancement was put at $262,323.

The majority’s conclusion that the supervisory position is responsible for defendant’s enhanced earnings and not his Master’s degree is not supported in the record. Jerry Minor, plaintiffs expert, opined that the additional educational attainment was definitive in permitting defendant to perform as a supervisory engineer rather than as a nonsupervisory engineer, and that the earning enhancement of those education attainments were reflected by the different pension earnings of a supervisory engineer over and above the earnings of a nonsupervisory engineer. Minor’s conclusion is further buttressed by the tables of computation submitted in evidence which clearly indicate that it is the Master of Science degree and its implication to defendant’s earning capacity which was being considered and not the Master of Business Administration degree.

The majority’s conclusion that the expert’s testimony was impermissibly flawed is based on a hypothetical question posed by defense counsel which assumed facts not in evidence. He asked the witness to assume that defendant had taken most of the courses needed to earn a Master in Business Administration degree. An opinion based on such a scenario is not viable as evidence because it is not based on the true state of the record. Notwithstanding the fact that plaintiffs counsel failed to object to its admission, Supreme Court could discount it entirely as not based on the evidence as it obviously did.

The further conclusion of the majority that defendant’s Master’s degree has not advanced his ability to earn more based on the expert’s tables which indicate that supervisory personnel having a Master’s or Bachelor’s degree earn the same is flawed. Even if, for the sake of argument, we were to conclude that supervisory engineers with a Bachelor’s degree earn as much as a supervisory engineer with an Master’s degree, this does not affect the circumstances in the record. It is defendant’s employment history and the effect of his educational attainments and experience that is of evidentiary consequence and not that of some hypothetical "other” supervisory engineer with a Bachelor’s degree who may or may not exist.

I would thus affirm Supreme Court’s award to plaintiff of a

*794distributive award of $130,000 for her significant contributions in defendant’s attainment of his Master’s degree.

Ordered that the judgment is modified, on the law and the facts, without costs, by reversing so much thereof as made a distributive award in favor of plaintiff; the amount of maintenance is decreased to $2,000 per month; and, as so modified, affirmed.