STERLING v. STERLING

The record supports the trial court's finding that plaintiff is not a celebrity whose acting career has resulted in the realization of enhanced or exceptional earnings distributable in accordance with Elkus v. Elkus ( 169 A.D.2d 134, lv dismissed 79 N.Y.2d 851). Plaintiff, whose supporting role in a daytime soap opera is her first and only high-paying job, does not have a proven record of obtaining lucrative acting roles, has not risen to the top of her field and is not an exceptional wage earner. As the trial court explained, defendant confuses plaintiff's increase in income during the marriage with an increase in her income-earning capacity. In any event, as the trial court alternatively found, it does not appear that defendant contributed to plaintiff's career. The court's maintenance award, however, was inadequate, given the pre-separation standard of living and since any maintenance award will be taxable to defendant. Given the circumstances of this case, defendant's maintenance award is increased to $18,000 per year for three years.

While an award of counsel fees is within the discretion of the trial court (see De Cabrera v. Cabrera-Rosete, 70 N.Y.2d 879), plaintiff is in a clearly superior financial position. Defendant submitted documentation of attorneys' fees in excess of $25,000, and the record supports the finding that an award of attorneys' fees is required to ensure counsel for defendant. (Charpie v Charpie, 271 A.D.2d 169.) We therefore award defendant $25,000 in counsel fees, inclusive of work performed on this appeal. We have considered the parties' other claims for affirmative relief and find them to be without merit.

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