119 Misc. 2d 1076 | N.Y. Sup. Ct. | 1983
OPINION OF THE COURT
This is an application for an order and/or judgment pursuant to CPLR 3212 granting defendant partial summary judgment and it raises the issue of whether a spouse’s contributions as a parent and homemaker may be considered by the court in awarding said spouse a share in the appreciation in value of the other spouse’s separate property which appreciation has occurred since the inception of the marriage to the date of the commencement of the divorce action. The court answers the question in the affirmative.
It appears that the parties were divorced by judgment of this court dated March 2, 1982 (McInerney, J.), which judgment directed that all other issues, including equitable distribution of the parties’ marital property, be referred for a subsequent trial. Defendant in this four-year marriage is seeking an order directing that his medical practice is separate property and that any increase in the value of the claimed separate property subsequent to the date of his marriage to plaintiff herein is also separate property, and, as such, is not property subject to equitable distribution. Defendant claims that plaintiff never worked at defendant’s medical office and has done nothing to increase the value of his professional practice.
Accordingly, based on a liberal reading of the above sections of part B of section 236 of the Domestic Relations Law the court holds that appreciation in separate assets from the inception of the marriage to the date of the commencement of a divorce action constitutes marital property to the extent that such appreciation is due to the contributions or efforts of the nontitled spouse and the contributions to the accumulation of such appreciation may be direct or indirect (Domestic Relations Law, § 236, part B, subd 5, par d, cl [6]; but see Jolis v Jolis, 111 Misc 2d 965).
The meaning of “indirect contribution”, however, is yet subject to definition. There are situations where the nonti
A recent development in Canada, where this issue has seen much play (Bregman v Bregman, 21 OR2d 722, app dsmd 25 OR2d 254; Fisher v Fisher, 21 OR2d 105; Nuti v Nuti, 28 OR2d 102; O’Reilly v O’Reilly, 23 OR2d 776; Silverstein v Silverstein, 20 OR2d 185; Weir v Weir, 23 OR2d 765; Matter of Young v Young, 32 OR2d 19), is most illuminating. The Supreme Court of Canada in construing certain sections of the Ontario Family Law Reform Act (Rev Stats of Ontario, 1980, ch 152, § 3, subd [b]; §§ 4, 8) held that a wife did not necessarily have to prove a “direct” contribution to the appreciation in a husband’s separately owned business in order to receive a share in the value of the appreciation of said business which occurred from the time of the inception of the marriage (Leatherdale v Leatherdale, 30 Rpts of Fam L 2d 225). Regrettably, the Canadian Supreme Court then withdrew and excluded home and child care as an indirect contribution. Canadian commentators and this court feel that a more liberal approach is necessary for a truly “equitable” distribution on divorce (see McLeod, Case Comment, 30 Rpts of Fam L 2d 251,253; see, also, 2 Foster-Freed, Law and the Family — New York, 1983 Cum Supp, § 33:4-B, p 841 et seq.).
The concept of equitable distribution borrows from the community property States the premise that when a couple marry, the parties enter into, inter alia, an economic partnership (see Governor’s Memorandum of Approval, L 1980,
Accordingly, the court holds that summary judgment is denied. The issue of whether the defendant’s medical practice is property subject to equitable distribution is referred to the trial court for determination. The issues of spousal contributions to the husband’s separately titled business, their existence and their value shall be an element to be proved by plaintiff at the trial of this action.