Gail S. Fanelli v George C. Fanelli

Fanelli v Fanelli 2005 NY Slip Op 00372 [14 AD3d 592] January 24, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 16, 2005

Gail S. Fanelli, Appellant,
v
George C. Fanelli, Respondent.

—[*1]

In an action for a divorce and ancillary relief, the plaintiff appeals from stated portions of a judgment of the Supreme Court, Westchester County (Spolzino, J.), dated August 11, 2003, which, inter alia, equitably distributed the marital assets.

Ordered that the judgment is affirmed insofar as appealed from, with costs.

The plaintiff contends that the trial court's distribution of marital property was inequitable, because she received a greater proportion of the non-liquid assets in the form of retirement accounts, while the defendant received a greater proportion of the liquid assets in the form of proceeds from the sale of the marital residence (see Filax v Filax, 176 AD2d 1194 [1991]; Chirls v Chirls, 170 AD2d 641 [1991]; Petrie v Petrie, 143 AD2d 258, 259-260 [1988]; Tanner v Tanner, 107 AD2d 980 [1985]). The liquid or non-liquid character of marital property is one factor a court must consider when making a determination on equitable distribution (see Domestic Relations Law § 236 [B] [5] [d] [7]). The court should also consider the income and property of each party (see Domestic Relations Law § 236 [B] [5] [d] [1]), their probable future financial circumstances (see Domestic Relations Law § 236 [B] [5] [d] [8]), and any other factor which the court finds just and proper (see Domestic Relations Law § 236 [B] [5] [d] [13]). After taking into consideration the plaintiff's income, and the additional liquid assets in her possession, the court providently exercised its discretion in making the subject distributive awards (see Petrie v Petrie, supra).

Contrary to the plaintiff's contention, the trial court properly based its valuation of [*2]the defendant's professional engineering license on his actual prior earnings, rather than on the estimated earnings of a hypothetical license holder (see Grunfeld v Grunfeld, 94 NY2d 696, 704 [2000]; McSparron v McSparron, 87 NY2d 275, 286 [1995]; Morales v Morales, 230 AD2d 895 [1996]). Florio, J.P., Krausman, Goldstein and Mastro, JJ., concur.