99.2.68 Hougie

Hougie v. Hougie, 261 A.D.2d 161, 689 N.Y.S.2d 490 (First Dept. 1999)

Supreme Court, Appellate Division, First Department, New York.

Anne L. HOUGIE, Plaintiff-Respondent,

v.

Robert E. HOUGIE, Defendant-Appellant.

May 6, 1999.

**490 Allan D. Mantel, for Plaintiff-Respondent.

Michael F. Teitler, for Defendant-Appellant.

ROSENBERGER, J.P., RUBIN, MAZZARELLI, SAXE and BUCKLEY, JJ.

**491 MEMORANDUM DECISION.

*161 Order, Supreme Court, New York County (Sherry Klein Heitler, J.), entered April 17, 1998, which denied defendant's motion for partial summary judgment dismissing so much of the complaint as seeks equitable distribution of defendant's enhanced earning capacity as an investment banker, unanimously affirmed, with costs.

Preliminarily we note 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 (see, e.g., Elkus v. Elkus, *162 169 A.D.2d 134, 572 N.Y.S.2d 901, lv. dismissed 79 N.Y.2d 851, 580 N.Y.S.2d 201, 588 N.E.2d 99; West v. West, 213 A.D.2d 1025, 625 N.Y.S.2d 116, lv. dismissed 86 N.Y.2d 885, 635 N.Y.S.2d 950, 659 N.E.2d 773). On the merits, defendant's enhanced earning capacity as an investment banker is subject to equitable distribution regardless of whether or not such a career requires a license (see, Elkus v. Elkus, supra; but see, West v. West, supra), and the amount of such enhancement was therefore properly determined without regard to the existence of any such license. However, on appeal, in his reply brief, defendant for the first time acknowledges that during the marriage he obtained a Series 7 securities license, which is necessary to trade securities in the United States, and such license should also be taken into account in determining his enhanced earning capacity (see, McSparron v. McSparron, 87 N.Y.2d 275, 285- 286, 639 N.Y.S.2d 265, 662 N.E.2d 745).