Marcus V. Marcus

MARCUS V MARCUS [137 AD2d 131]

Parties: Harriet Marcus (plaintiff/appellant), Harold Marcus (defendant/appellee/cross-appellant). Parties are spouses.

Procedural history/Outcome: Divorce action by Harriet Marcus. The trial court (Supreme Court) granted a divorce and distributed the marital assets. The judgment is modified.

Facts: The parties got married in Chicago in 1948. After the marriage Harriet Marcus was employed as a full-time social worker and contributed her earnings to the marital household while Harold Marcus attended medical school. He graduated in 1950 and eventually built up a successful private psychiatric practice in New York. Harriet Marcus ceased working in 1951 and devoted herself to taking care of their children and maintain the household. In the late 1970’s Harold Marcus developed an extramarital relationship. On July 18,1980, the day preceding the effective date of equitable distribution in New York, Harriet Marcus commenced an action for divorce, which was dismissed in October 1980 for failure to serve a complaint. The marital problems continued and Harriet Marcus commenced the present divorce action on January 1982.

Issue: 1. Spouse’s professional degree or license as marital property for purposes of alimony, support or property settlement.

2. Pension or retirement benefits as subject to award or division by court in settlement of property rights between spouses.

Holding: 1. The spouse is not entitled to two separate awards for the medical license and practice.

2. The retirement fund, being in the nature of a pension plan, constitutes marital property only to the extent that the corpus of the retirement fund accumulates during the marriage and prior to the commencement of the divorce action.

Reasoning:

1. The psychiatric practice was an ongoing and viable enterprise at the time the divorce action has commenced. Thus if the plaintiff were to receive separate awards a double recovery would result (Vanasco v. Vanasco 132...