GUSKIN v. GUSKIN

Ordered that the appeal from the order dated July 16, 2003, is dismissed, as that order was superseded by the judgment dated August 8, 2003; and it is further,

Ordered that the judgment dated July 29, 2003, is modified, on the law and as a matter of discretion, by deleting subdivisions (e) and (f) of the second decretal paragraph thereof; as so modified, the judgment dated July 29, 2003, is affirmed insofar as appealed from; and it is further,

Ordered that the judgment dated August 8, 2003, is reversed, on the law and as a matter of discretion, the order dated July 16, 2003, is vacated; and it is further,

Ordered that the matter is remitted to the Supreme Court, Nassau County, for a hearing on the issues of the value of the defendant's license to practice podiatric medicine and the distribution of the plaintiff's pension and tax-deferred annuity in light of the defendant's direct and indirect contributions, for a new determination of the issue of counsel fees, and the entry of an appropriate amended judgment; and it is further,

Ordered that the defendant is awarded one bill of costs.

"The enhanced earning capacity due to acquisition of a professional license during the marriage is clearly a marital asset subject to equitable distribution ( see Grunfeld v. Grunfeld, 94 NY2d 696, 702; McSparron v. McSparron, 87 NY2d 275, 286; O'Brien v. O'Brien, 66 NY2d 576, 584; see also Domestic Relations Law § 236 [B] [1] [c]; [5] [c])" ( Farrell v. Cleary-Farrell, 306 AD2d 597, 598). However, the Supreme Court improperly based its valuation of the defendant's license to practice podiatric medicine on the estimated earnings of a hypothetical license holder, rather than on his actual prior earnings ( see Grunfeld v. Grunfeld, supra at 704; McSparron v. McSparron, supra at 286; Fanelli v. Fanelli, 14 AD3d 592; Morales v. Morales, 230 AD2d 895).

"When separate property appreciate[d] during the marriage due to the active efforts of the titled spouse, and `where such appreciation was due in part to the [active] contributions and efforts of the nontitled spouse as a parent and homemaker, the amount of that appreciation should be added to the sum of marital property for equitable distribution'" ( Falgoust v. Falgoust, 15 AD3d 612, 614, quoting Price v. Price, 69 NY2d 8, 17; see Hartog v. Hartog, 85 NY2d 36). The Supreme Court therefore also erred in distributing the plaintiff's pension and tax-deferred annuity after improperly limiting the defendant's testimony as to his noneconomic contributions to the household during the parties' long-term marriage.

Accordingly, we remit the matter to the Supreme Court, Nassau County, for a new determination, after a hearing, as to the value of the defendant's license and distribution of the plaintiff's pension and tax-deferred annuity in light of the defendant's direct and indirect contributions ( see Milteer v. Milteer, 6 AD3d 407, 408; Wagner v. Dunetz, 299 AD2d 347; Barbuto v. Barbuto, 286 AD2d 741, 742-743) and entry of an amended judgment. The reassessment of those issues necessitates a reconsideration of the issue of counsel fees ( see Domestic Relations Law § 237 [a]).