Justice Jeffrey S. Sunshine

KINGS COUNTY
Supreme Court

Upon the foregoing papers, plaintiff _________________ (the husband) moves for summary judgment as a matter of law: (1) pursuant to CPLR 3212(c) and Domestic Relations Law (DRL) §236, dismissing the claim of defendant ___________ (the wife) to share in his alleged enhanced earnings capacity from the courses of study that he completed at Long Island University (LIU); (2) pursuant to CPLR 3212(c) and DRL §236, dismissing defendant's claim of a right to share in his alleged enhanced earning capacity from the medical degree that he obtained from Ross University Medical School (Medical School); and (3) pursuant to CPLR 3212(c) and DRL §236, dismissing defendant's claim of a right to share in his alleged enhanced earning capacity from the one year of medical residency that he completed prior to the commencement of the instant divorce action that had not then resulted in any degree or license. Defendant cross moves for an order, pursuant to DRL §237, granting her attorneys' fees and costs in defending this motion.

Facts and Procedural Background

Plaintiff commenced the instant action on April 24, 2008 seeking a judgment of divorce and other ancillary relief.

The parties were married on June 25, 1993, in Sevastopol, Ukraine and immigrated to the United States in 1996. Plaintiff entered the marriage with the American equivalent of a bachelor's degree and defendant entered the marriage with a certification as a hair stylist. Upon their arrival in this country, the wife obtained employment in a hair salon and the husband worked odd jobs because he could no longer teach agility and fitness to soldiers as he had done in the Ukraine. On September 7, 1997, the parties' son was born.

Between September 1997 and December 2000, plaintiff attended LIU as a full-time student so that he could become proficient in English and apply to medical school; during this time, plaintiff continued to work part time in odd jobs. Plaintiff did not receive any degree from LIU. From January 10, 2001 through April 2002, he attended Medical School, which was located in the Dominica in the West Indies; during this time, defendant remained in Brooklyn with the parties' son. Plaintiff returned home for about a week and then left to complete another portion of his education in Miami, where he remained for nine weeks, from May 2002 to July 2002; defendant again remained at home with the parties' son. On December 20, 2002, plaintiff passed the first step of the United States Medical Licensing Examination (USMLE). Between December 2002 and November 2004, plaintiff continued his education at Kings County Hospital and Brookdale Hospital, where he did his clinical rotations. On May 28, 2004, plaintiff passed the second USMLE. Plaintiff completed Medical School in January 2005 and graduated on April 1, 2005. From July 1, 2005 through June 30, 2006, he was a resident at New York Hospital, earning a salary of approximately $46,000. In July 2006, plaintiff changed his specialty and he became an anesthesiology resident at Nassau University Medical Center on July 1, 2006, where he is currently in his third year of residency, earning approximately $55,000 per year. On November 26, 2007, plaintiff took and passed the third USMLE.

During the time that plaintiff attended LIU, defendant continued to work full time at the hair salon. Beginning in September 2001 through October 2004, defendant attended night school at Touro College and continued to work full-time in the hair salon during the day. Defendant became licensed as an assistant physical therapist in August 2006.

In December 2005, plaintiff left the marital residence.

As is also relevant herein, this court previously appointed a neutral appraiser to value plaintiff's enhanced earning capacity. By report dated October 31, 2008, Financial Appraisal Services, Ltd., concluded that plaintiff's enhanced earning capacity resulting from the education that he received during the marriage was $1,584,000, taking into account an appropriate reduction for plaintiff's student loans and the remaining 11 percent of the training required for plaintiff to become a board certified anesthesiologist.

The Parties' Contention

The Husband

In support of his motion, plaintiff argues that defendant should not be entitled to share in the enhanced earning capacity that she claims resulted from the 98 courses that he took at LIU between September 1997 and December 2000 because the courses did not result in his obtaining any degree or certification and were only "a stepping-stone to a license to practice medicine," which he has not yet obtained. Plaintiff further argues that defendant should not be entitled to share in the enhanced earning capacity resulting from the courses that he took at Medical School, because his medical degree has no value without a medical license, which requires a minimum of three years of residency and passing three examinations. Plaintiff similarly contends that defendant should not be entitled to share in the enhanced earning capacity resulting from the one year residency that he completed prior to the commencement of the action on the grounds that he still had two years of residency to complete at that time. Accordingly, plaintiff argues that as of the time of commencement of this action, he did not have a medical license or board certification that would be subject to equitable distribution, since the only degree that he obtained was his medical degree, which, without a license, was worthless. In this regard, plaintiff avers that he will not complete his studies until July 2009. ¹

Plaintiff also argues that defendant did not make a significant contribution to his enhanced earning capacity, since she did not sacrifice her career or change her lifestyle for his education. More particularly, plaintiff alleges that while the parties were residing together, defendant attended school at the same time that he did. Between September 1997 and January 2000, while he attended LIU, defendant worked at the hair salon from 8:00 AM. to 4:00 PM, and then went to school at night, so that she was out of the house from 8:00 AM until 9:00 PM four nights each week. During this time, plaintiff avers that his mother and father, who lived one floor above him and his wife, cared for the parties' son on a full time basis. In this regard, plaintiff also emphasizes that the parties separated in December 2005, so that defendant did not make any contributions towards his education after this date.

Plaintiff further contends that from January 2001 until the time he completed medical school in July 2005, he borrowed the entire cost of his tuition, i.e., he received $1,800 to $2,000 per month in student loans to pay for the parties' living expenses, which money was deposited into the parties' joint checking account and was used by defendant to pay the family's bills. Plaintiff corroborates this contention with copies of the parties' bank account statements and student loan documents. Plaintiff also avers that although defendant contends that she earned $3,500 per month from her job, much of that money was not deposited into the parties' bank account.

Plaintiff also submits an affidavit from his father, _________________, in which he alleges that from July 1, 1996 until July 23, 2005, he and his wife lived in the same apartment complex as did plaintiff, defendant and their son. _____________ further avers that from the birth of the child until he was about two years and four months old, _______________ and his wife were the child's only caretakers. Commencing in January 2000, when the child was 28 months old, he started attending pre-school; plaintiff or defendant would take the child to school and _____________ or his wife would pick him up. When the child turned three, defendant began attending college, first to learn to speak English and then to obtain further education. During this time, defendant did not return home until 8:00 or 9:00 at night. ______________ accordingly concludes that since defendant worked every day and went to school every night from the beginning of 2000 until October 2004, he and his wife essentially acted as Stanley's parents. In addition, defendant vacationed in the Ukraine on three separate occasions for three weeks each trip, while ______________ and his wife cared for the child.

The Wife

In opposition to the husband's motion and in support of her cross motion, the wife argues that the husband's education and training is marital property subject to equitable distribution and that she substantially contributed to his enhanced earning capacity by providing the family with the bulk of their economic support, arranging and paying for child care, cleaning, cooking, paying the bills and attending to all household chores. In this regard, defendant avers that from September 1997 to January 2000, she paid for the bulk of the household expenses because plaintiff was a full-time student and only worked on occasions at his aunt's grocery store. She further alleges that during the time that plaintiff attended Medical School in Dominica, he contributed about $1,000 every three to four months for household expenses; accordingly, defendant paid the majority of the expenses. She therefore contends that her doing so allowed plaintiff to go to school at LIU and to go to Medical School in Dominica and Miami. In addition, because she went to school at night, it took her six years to complete a two year physical therapist assistant program.

Defendant also contends that plaintiff's contention that his medical degree is not subject to equitable distribution because it does confer upon him the right to practice medicine is "erroneous and maliciously deceiving" because he fulfilled all of the requirements needed to obtain a license to practice medicine before the action was commenced. More specifically, he completed the necessary study on April 1, 2005, when he graduated from Medical School, he passed the third required USMLE on November 26, 2007 and he completed one year of residency. In so arguing, defendant relies upon sections 6524 and 6528 of the New York State Medicine Education Law to argue that after graduating from Medical School, all plaintiff had to do to obtain his license was to pass the three USMLEs and fulfill a one year residency requirement, i.e., all that remained to be done was to file an application and pay the appropriate fee.

The Husband's Reply

In reply, the husband again argues that he could not sit for the board examination to be an anesthesiologist until November 2009, which is 19 months after the date that the instant action was commenced. Hence, he was not a licensed physician or anesthesiologist on the date of commencement. Further, at the time that the parties separated, he had taken only one of the three USMLEs that he needed and he was only five months into his first residency. Plaintiff admits that although defendant paid the vast majority of the parties' expenses while he was attending LIU, this was not the case between 2000 and 2005.

Defendant's Addendum

In an addendum to her affirmation in opposition, defendant alleges that in order to be eligible for a medical license, the New York State Department of Education/State University of New York requires that plaintiff complete three years of training, i.e., three years of residency; he need not complete a residency in one medical discipline or specialty. Herein, plaintiff obtained his medical degree on April 1, 2005. He was then a resident at New York Hospital Queens from July 1, 2005 to June 30, 2006; on July 1, 2006, he became a resident at Nassau University Medical Center, where he is currently employed. Thus, he has now completed approximately three years and eight months of his residency, having completed two years and nine months at the date of commencement of the action on April 24, 2008. In addition, he passed the first USMLE on December 20, 2002, he passed the second on May 28, 2004 and he passed the third on November 26, 2007. Defendant thus alleges that although plaintiff was not able to obtain his medical license as of the date of commencement, he is now eligible to do so. Accordingly, she concludes that the value of his license should be prorated to reflect that portion of the enhanced earnings obtained during the marriage, or 89 percent of the value. Defendant further avers that plaintiff is improperly trying to protect that portion of the education leading to his license by confusing the requirements for becoming an anesthesiologist with the requirements for becoming a licensed physician.

Plaintiff's Supplemental Affidavit

In his affidavit in reply, plaintiff alleges that defendant now concedes that as of the date of commencement of the action, he still needed to complete three additional months of residency before he was eligible to apply for his medical license. Accordingly, he again argues that since he had not completed the course of study necessary to obtain a medical license prior to commencement of the action, no medical license existed at the time to be valued. He further avers that he will not complete the training necessary to become an anesthesiologist until after he takes a written exam in November 2009 and an oral exam in April 2010.

Plaintiff further argues that the only thing that remains to be valued is his medical degree. He again argues, however, that inasmuch as defendant did not make a substantial contribution to his education, she should not be awarded any share of the enhanced earning capacity resulting from the degree. He further argues that his enhanced earning capacity should not be based upon him being a board certified anesthesiologist, since he will not complete that course of study until 24 months after the instant action for divorce was commenced. He concludes that:

"Thus, the only possible item of property for this Court to value and distribute would be the actual medical education that I received from ROSS University, not LIU, not the Medical License, and not the BOARD CERTIFICATION that I will first sit for the written exam in November 2009, some 19 months post commencement and the Oral Exam in April 2010, some 24 months Post-Commencement."

Defendant's Right to Share in Plaintiff's Medical License and/or Enhanced Earnings

The Law

Pursuant to DRL §236(B)(1)(c), marital property is broadly defined as "property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held." In the landmark case of O'Brien v. O'Brien (66 NY2d 576 [1985]) (O'Brien), the Court of Appeals held that a professional license could constitute marital property subject to equitable distribution to the extent that it is acquired during the marriage. In further explaining this decision, the Court of Appeals later stated that "[t]he statute is sweeping and 'recognizes that spouses have an equitable claim to things of value arising out of the marital relationship'" (DeJesus v. DeJesus, 90 NY2d 643, 646 [1997], quoting O'Brien, 66 NY2d at 583). "By broadly defining the term 'marital property', [the statute] intended to give effect to the 'economic partnership' concept of the marriage relationship (Price v. Price, 69 NY2d 8, 15 [1986]; Majauskas v. Majauskas, 61 NY2d 481 [1984]). It was accordingly then left it to the courts to determine what interests constitute marital property" (Elkus v. Elkus, 169 AD2d 134, 136 [1991], lv dismissed 79 NY2d 851 [1992]) (Elkus).

As is also relevant herein, in further refining the scope of the rule of the O'Brien case, in McGowan v. McGowan (142 AD2d 355 [1988]) (McGowan), the Appellate Division, Second Department, explained that:

"Any difficulty that may be thought to exist in deciding these issues is markedly diminished by considering that the rationale espoused by the O'Brien court is essentially founded upon the concept that a professional license is a thing of value mainly, if not solely, because of the 'enhanced earning capacity it affords the holder' (O'Brien v. O'Brien, supra, at 588). Since an academic degree may, under various circumstances, similarly enhance the earning potential of its holder, we see no valid basis upon which to distinguish such degrees from the professional licenses which pursuant to O'Brien are subject to equitable distribution. Also, considering that the enhancement of one spouse's earning capacity is the thing of value subject to equitable distribution pursuant to the O'Brien case, we conclude that such enhancement of earning capacity is acquired when it is actually achieved, that is, when the work that gave rise to it is finally completed, not at some later point when the completion of that work is formally recognized by the conferral of a degree or license. "

(McGowan, 142 AD2d at 356-357 [emphasis added by this court]). The court went on to hold that the teaching certificate that was awarded to plaintiff approximately two weeks after the marriage ceremony, where plaintiff had completed the requirements for that degree before the parties' marriage, was not marital property. In contrast, however, the Masters degree which was subsequently conferred upon her was considered to be marital property, since it reflected the successful completion of a course of study undertaken during the marriage (McGowan, 142 AD2d at 357). As is also useful herein, in so holding, the court noted that:

"The husband's argument is…that, since the plaintiff's teaching certificate was acquired during the marriage, all of the enhancement of earning potential that it represents must also be deemed to have been acquired during the marriage. This, however, is obviously not the case. The real thing of value, that is, the plaintiff's increased skill, knowledge and ability, her 'human capital', as it were, was acquired before the marriage and must therefore be deemed separate property."

(McGowan, 142 AD2d at 362 [1988]).

Subsequent cases interpreting O'Brien have further expanded upon the enhanced earning capacity that may be subject to equitable distribution. For example, in Holihan v. Holihan (159 AD2d 685 [1990]), the Appellate Division, Second Department, held that the husband's license as a guidance counselor, which was obtained following a course of study during the marriage, constituted marital property. In Elkus, after noting that "[t]here is no rational basis upon which to distinguish between a degree, a license, or any other special skill that generates substantial income" (Elkus, 169 AD2d at 138), the Appellate Division, First Department, held that the celebrity status of a skilled opera singer was a marital asset subject to equitable distribution. In Mitnick v. Rosentha (260 AD2d 238, 239 [1999], lv dismissed 94 NY2d 797 [2000], lv denied 95 NY2d 769 [2000]), the Appellate Division, First Department, held that the wife's fellowships were properly found to be subject to equitable distribution upon evidence that they enhanced her earning capacity. In Hougie v. Hougie (261 AD2d 161, 162 [1999]), the same court held that defendant's enhanced earning capacity as an investment banker was subject to equitable distribution, regardless of whether or not such a career requires a license, and that the Series 7 securities license, which is necessary to trade securities in the United States, that he obtained during the marriage should be taken into account in determining his enhanced earning capacity. In Murtha v. Murtha (264 AD2d 552, 553 [1999], lv dismissed 95 NY2d 791 [2000]), the Appellate Division, First Department, held that the husband's Chartered Financial Analyst certification enhanced his earning capacity, and although not a prerequisite for employment and/or advancement, was subject to equitable distribution because he was promoted after receiving it and his compensation more than doubled. In Spence v. Spence (287 AD2d 447, 448 [2001], lv dismissed 97 NY2d 725 [2002]), the Appellate Division, Second Department, declining to follow the holding in Hougie, found that the husband's enhanced earning capacity as an investment banker was not marital property subject to equitable distribution under circumstances where he earned his MBA, Series 7 license and Series 63 license four years before the marriage, so that his increased earning capacity was not attributable to a professional license or degree acquired during the marriage. In Judge v. Judge (48 AD3d 424 [2008]), the Appellate Division, Second Department, held that defendant's MBA degree was a marital assert subject to equitable distribution, explaining that an academic degree may constitute a marital asset subject to equitable distribution, even though the degree may not necessarily confer the legal right to engage in a particular profession, since the record demonstrated that the degree substantially increased the wife's future earnings.

In other cases, the court has held that the portion of the value of a spouse's enhanced earning capacity resulting from the education acquired during the marriage is a marital asset. Hence, for example, in McAlpine v. McAlpine (176 AD2d 285 [1991]), the Appellate Division, Second Department, held that only that portion of the husband's fellowship represented by the last five examinations could be treated as marital property since the fellowship, which required the study of mathematics and the successful passage of ten examinations, was largely obtained pre-maritally, and defendant graduated from college and passed five of the examinations before he was married. Similarly, in Hickey v. Hickey (256 AD2d 383 [1998]), the Appellate Division, Second Department, held that since plaintiff's nursing license was a result, in part, of an educational process which began before the marriage, it could not, in its entirety, be distributed as marital property, and remitted the matter for a hearing to determine the number of credits earned by plaintiff toward the license before the marriage, and to recalculate defendant's share of the license. In Gandhi v. Gandhi (283 AD2d 782 [2001], the Appellate Division, Third Department, held that some part of the value of plaintiff's CPA license was attributable to activities conducted during the marriage and accordingly constituted marital property, even though plaintiff received considerable formal education in business administration and accounting in India; was qualified as a "chartered" accountant, which is India's equivalent of a CPA license; he worked in that capacity for a number of years; and he obtained his license here after taking only two additional during the evening, while he remained employed as a full-time accountant, because his actual earnings substantially increased following the CPA. In Miklos v. Miklos (9 AD3d 397 [2004]), the Appellate Division, Second Department, held that the trial court improvidently exercised its discretion in determining that plaintiff was entitled to 50 percent of the two-thirds portion of defendant's enhanced earning capacity which the Supreme Court determined was marital property, since defendant worked full time as a pharmacist the entire time he attended law school, he had a full scholarship to attend law school, the parties married after defendant completed his first year of law school and they did not have any children at that time. In Carman v. Carman (22 AD3d 1004, 1007 [2005]), the Appellate Division, Third Department, held that 20 percent of defendant's CPA license was marital property where he completed a Bachelor's degree and almost one year of the required two years of practice before the marriage, and during the marriage, finished the remaining practice period, took an exam preparation course and passed all portions of the CPA exam, since the expert's 20 percent figure represented one sixth of defendant's education and practical experience with a slight increase for exam preparation and successful completion, as the marital portion of defendant's enhanced earning capacity. In Chamberlain v. Chamberlain (24 AD3d 589 [2005]), the Appellate Division, Second Department, held that the trial court providently exercised its discretion in awarding defendant 30 percent of the value of the degrees and license that constituted the enhanced earning capacity achieved by plaintiff during the marriage, based upon his indirect contributions to the attainment of that enhanced earning capacity by paying all of the family's living expenses while plaintiff was a student and modifying his employment schedule in order to enable him to care for the parties' older child, who was born during that period.

In contrast, however, in Fruchter v. Fruchter (29 AD3d 942 [2006]), the Appellate Division, Second Department, held that since it was undisputed that plaintiff did not finish the required courses to obtain an MBA degree and did not take all three CFA examinations required to receive that certification, and his MBA and CFA studies were not completed, any enhanced earning capacity which may result upon completion of these studies would not constitute marital property. Similarly, in Kyle v. Kyle (156 AD2d 508 [1989]), the same court held that defendant's application to reopen the trial for the purpose of taking testimony regarding the value of plaintiff's principal's license and determining the amount, if any, to which defendant was entitled with respect to that license was properly denied. In so holding, the court reasoned that since plaintiff testified at trial that he still needed two courses in order to obtain his principal's license, he never completed the educational requirements for a principal's license and he did not acquire his principal's license during the marriage, his uncompleted course of studies in possible anticipation of obtaining a principal's license in the future did not constitute marital property susceptible to equitable distribution.

In addition, it has been recently reiterated by the Appellate Division, Second Department, that:

"'[I]t is…incumbent upon the nontitled party seeking a distributive share of such assets to demonstrate that they made a substantial contribution to the titled party's acquisition of that marital asset' and [w]here only modest contributions are made by the nontitled spouse toward the other spouse's attainment of a degree or professional license, and the attainment is more directly the result of the titled spouse's own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity'" (Higgins v. Higgins, 50 AD3d 852, 853, quoting Brough v. Brough, 285 AD2d 913, 914-915, and Farrell v. Cleary-Farrell, 306 AD2d 597, 599-600; see Vora v. Vora, 268 AD2d 470, 471.

(Kriftcher v. Kriftcher, 59 AD3d 392, 393 [2009]; accord Guha v. Guha, ___ AD3d ___, 2009 NY Slip Op 2748, 1-2 [2009]). Accordingly, by way of illustration, in Duspiva v. Duspiva (181 AD2d 810 [1992]), the Appellate Division, Second Department, held that the trial court improvidently exercised its discretion in awarding defendant a share of plaintiff's enhanced earning capacity resulting from his degree and certification as a public accountant, since she failed to show that she had made a substantial contribution to this asset. In so holding, the court noted that plaintiff continued to provide the main support for the family and he pursued his studies largely unaided, since defendant neither sacrificed her career, never assumed a disproportionate share of household work as a consequence of plaintiff's studies and chose not to work outside the home for nearly a year while plaintiff attended college and held down a full-time job. More recently, in Higgins v. Higgins (50 AD3d 852 [2008]), the same court held that the trial court improvidently exercised its discretion in awarding defendant a share of plaintiff's enhanced earning capacity where defendant did not demonstrate that his contributions were substantial in that he offered no evidence to establish that he made career sacrifices or assumed a disproportionate share of household work as a consequence of plaintiff's education, particularly since plaintiff worked full time while attending school, funded some of her own educational costs, and was still the primary caregiver for the parties' children.

Discussion

As a preliminarily issue, the court notes "that whether a particular marital asset, such as the enhanced earning capacity attributable to a particular career, is subject to equitable distribution is an issue that can be decided prior to trial" (Hougie, 261 AD2d at 161-162, citing Elkus; West v. West, 213 AD2d 1025 [1995], lv dismissed 86 NY2d 885 [1995]).

The undisputed facts of this case establish that the parties were married on June 26, 1993. During the marriage, plaintiff attended LIU so as to enable him to enroll in Medical School; he attended Medical School from January 2001 through April 2002; and he received a degree on April 1, 2005. He was a resident at New York Hospital Queens from July 1, 2005 to June 30, 2006; from July 1, 2006 through the present, he has been a resident at Nassau University Medical Center. Further, he took and passed the three USMLEs necessary to obtain a medical license on December 20, 2002, May 28, 2004 and November 26, 2007. Thereafter, on April 24, 2008, this action was commenced.

Applying the above principles of law to the facts of this case, plaintiff's education at LIU, which was a necessary prerequisite to his acceptance at Medical School, is a marital asset (generally Hassanin v. Hassanin, 279 AD2d 550 [2001] [defendant's undergraduate degree in engineering was marital property and plaintiff was entitled to a portion of his enhanced earning capacity]); as is his medical degree and the two years and nine months of his residency, since this education and training are held to have contributed to his enhanced earning capacity as an anesthesiologist, so that these marital assets are found to be subject to equitable distribution (see R.R. v. P.R., 298 AD2d 169 [2002] [in making the distributive award, the court was appropriately cognizant of the value of plaintiff's medical specialty, even though plaintiff was not yet board certified in that specialty at the time of trial]; see generally Judge, 48 AD3d 424; Chamberlain, 24 AD3d 589; Carman, 22 AD3d 1004; Miklos, 9 AD3d 397; Spence, 287 AD2d 447; Gandhi, 283 AD2d 782; Murtha, 264 AD2d 552; Hougie, 261 AD2d 161; Mitnick, 260 AD2d 238; Hickey, 256 AD2d 383; McAlpine, 176 AD2d 285; Elkus, 169 AD2d 134; Holihan, 159 AD2d 685; McGowan,142 AD2d 355 ), as is the enhanced earning capacity resulting from passing the three exams (id.). This holding finds further support in Vainchenker v. Vainchenker (242 AD2d 620 [1997]), wherein the Appellate Division, Second Department, held that:

"Although the husband was a practicing physician in Russia prior to the parties' marriage, his earning capacity in the United States was enhanced due to the medical training he received in this country during the marriage. The Supreme Court therefore properly determined that the husband's New York medical license was a marital asset subject to equitable distribution (see generally, McSparron v. McSparron, 87 NY2d 275; O'Brien v. O'Brien, 66 NY2d 576; Shoenfeld v. Shoenfeld, 168 AD2d 674).

(Vainchenker, 242 AD2d at 621 [1997]).

The court also finds plaintiff's reliance upon Fructer and Kyle to argue that his education and training does not constitute marital assets subject to equitable distribution to be unpersuasive, since both of those cases are distinguishable. More specifically, the plaintiff in Fruchter did not finish the required courses to obtain an MBA degree and did not take all three CFA examinations required to receive that certification, so that his MBA and CFA studies were uncompleted. Similarly, the plaintiff in Kyle still needed two additional courses in order to obtain his principal's license, he never completed those educational requirements and he did not acquire his principal's license during the marriage. Herein, plaintiff's education was completed as of the date of the commencement of the action, as were two years and nine months of his residency.

Further, as the above discussion of law reveals, and is impliedly admitted by plaintiff, courts routinely apportion the value of the enhanced earning capacity resulting from courses of study both before and during the marriage. While the instant case is different in that plaintiff was not eligible to receive his medical license for three months after the commencement of the action, it is not disputed that from January 10, 2000 through the date of commencement, plaintiff was working towards acquiring this license. If a spouse is permitted to avoid equitable distribution of enhanced earning capacity by commencing an action after the necessary education has been acquired, but before the sought after license is obtained, the rationale behind O'Brien would be abrogated. Moreover, as noted above, under the facts of this case, where plaintiff completed the training necessary to obtain a medical license within three months of the commencement of the action, there is no speculation with regard to whether the necessary studies will be completed.

The court also finds plaintiff's assertion that defendant did not substantially contribute to his education to be unpersuasive. In this regard, plaintiff admits that defendant worked full time throughout the marriage and that she provided most of the support for the family while he was attending LIU and at least some of the support while he was in Medical School and while he was a resident. Although defendant argues that defendant attended school during this time, she also took care of the parties' son, albeit with the assistance of plaintiff's parents. The court further finds plaintiff's contention that defendant did not care for him while he was attending Medical School in Dominica or while he was in Miami to be disingenuous, since during this time, defendant cared for the parties' son without any assistance from plaintiff, in addition to working so that the family's expenses could be met. Finally, she went to school part-time, at night, so that plaintiff could pursue his studies on a full time basis. The court accordingly holds that defendant made a contribution to plaintiff's enhanced earning capacity, with the amount of such contribution to be determined at trial. In determining the share of the enhanced earning capacity to which defendant is entitled, the court can entertain the argument that the parties separated in December 2005.

Defendant's Request for Attorneys' Fees

The Parties' Contentions

In support of her request for attorneys' fees, defendant argues that an award of fees is appropriate pursuant to DRL §237 because plaintiff's motion is without merit. She accordingly requests an award of $5,500, based upon an hourly rate of $340.

In opposition to the wife's cross motion, the husband contends that her failure to file a Statement of Net Worth renders her request defective. He further avers that she has not demonstrated a balance of the equities or provided any statements or invoices detailing the time spent on the matter.

Discussion

Pursuant to 22 NYCRR §202.16(k)(2), "[n]o motion shall be heard unless the moving papers include a statement of net worth in the official form prescribed by subdivision (b) of this section." Pursuant to 22 NYCRR §202.16(k)(3):

"No motion for counsel fees shall be heard unless the moving papers also include the affidavit of the movant's attorney stating the moneys, if any, received on account of such attorney's fee from the movant or any other person on behalf of the movant, and the moneys such attorney has been promised by, or the agreement made with, the movant or other persons on behalf of the movant, concerning or in payment of the fee."

Accordingly, defendant's failure to submit a net worth statement renders her application for an award of an attorney's fee defective, so that the application would have to be denied without prejudice to renewal upon compliance with the applicable requirements (see Bertone v. Bertone, 15 AD3d 326 [2005]; Fischer-Holland v. Walker, 12 AD3d 671 [2004]; Matter of Cooke v. Alaimo, 44 AD10393 [2007]; Lifshutz v. Rockfield, 300 AD2d 366 [2002]; Cole v. Cole, 283 AD2d 602, 603 [2001]). Inasmuch as the instant motion can be considered in making a determination of whether defendant shall be awarded attorneys' fees at the termination of this action, the court grants defendant leave to renew her application upon the submission of proper papers later in this proceeding.

In so holding, the court further notes that an award of attorney's fees is not proper pursuant to DRL §237 under circumstances where the award is sought as a sanction for alleged improper or dilatory conduct, since a sanction can only be awarded pursuant to and in accordance with the Rules of the Chief Administrator of the Courts, 22 NYCRR §130-1.1 (see e.g. Landes v. Landes, 248 AD2d 268 [1998] [an award of $ 7,000 to the husband's attorney, described by the court as a "fine for this patently frivolous action," rendered it a sanction and not an award of attorney's fees, and as such, it must comply with the requirements of 22 NYCRR 130-1.1(d)]; accord Gober v. Gober, 11 AD3d 261 [2004] [plaintiff's request for counsel and expert fees pursuant to DRL §237, based upon defendant's allegedly obstructive litigation conduct, was properly denied on the ground that the divorce judgment put the parties in financial parity and made each a multi-millionaire; under the circumstances, plaintiff's remedy was to seek counsel and expert fees as a form of sanction under 22 NYCRR part 130]; Silverman v. Silverman, 304 AD2d 41, 48 [2003] [an award of counsel fees that did not serve to level the playing field, but would serve merely to punish the adverse spouse for what the court viewed as wasteful, frivolous litigation conduct, was impermissible as punitive nature; such award should instead be sought under 22 NYCRR 130-1.1]).

Conclusion

For the above stated reasons, all relief requested in the motion and cross motion is denied. Counsels shall appear on July 20, 2009.

The foregoing constitutes the order and decision of this court.