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Albizu v. Duval

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT


December 23, 2008

VIRGINIA ALBIZU, PLAINTIFF-RESPONDENT,
v.
JOSE DUVAL, DEFENDANT-APPELLANT.

Judgment, Supreme Court, New York County (Saralee Evans, J.), entered May 14, 2008, to the extent appealed from as limited by the briefs, awarding plaintiff a principal sum of $236,346.45, and counsel fees in the amount of $8,155, unanimously affirmed, without costs.

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Tom, J.P., Saxe, Catterson, Moskowitz, DeGrasse, JJ.

302180/04

These awards represented, respectively, the accelerated balance of plaintiff wife's equitable distribution based on the value of her husband's dental license, and her counsel fees in connection with enforcement proceedings. Defendant failed to demonstrate grounds to warrant setting aside or modifying the equitable distribution provisions of the parties' separation agreement, which were incorporated by reference but not merged with the divorce decree (see Merl v Merl, 67 NY2d 359 [1986]). The parties expressly stipulated that they accepted the valuation opinion of the court-appointed neutral forensic accountant, acknowledged the findings in the accountant's report as true and binding, and accepted them for equitable distribution purposes. Contrary to defendant's assertion, his student loans were taken into account in the valuation process. The total amount of the loans was deducted from the gross valuation in the accountant's report, resulting in an adjusted enhanced earning capacity value of $672,200. The parties further agreed that 75% of this figure was the appropriate value of the marital asset to be divided, of which $252,075 represented plaintiff's 50% share. The incorporation of the agreement by reference in the final judgment of divorce makes it binding on the parties.

The accountant's valuation was anything but "speculative." The value of a newly earned license may be measured by comparing the average lifetime income of a college graduate with the average lifetime earnings of a person holding such a license, and reducing the difference to its present value (see McSparron v McSparron, 87 NY2d 275, 286 [1995]). There was no legal basis for modifying or setting aside the equitable distribution.

Counsel fees were properly awarded under the terms of the separation agreement.

M-4105-Albizu v Duval

Motion seeking, inter alia, dismissal of appeal, leave to enlarge record and related relief granted only to the extent of enlarging the record and otherwise denied.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

20081223

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