O'Brien rule in New York

2006In my view, the determination of the court, much more so than the decision of the majority, accomplishes the “core purpose of the O’Brien rule: to assure the nontitled spouse an equitable share of the license to which that spouse’s efforts contributed” (McSparron v McSparron, 87 NY2d 275, 282 [1995], rearg dismissed 88 NY2d 916 [1996]).

2006In my view, the determination of the court, much more so than the decision of the majority, accomplishes the “core purpose of the O’Brien rule: to assure the nontitled spouse an equitable share of the license to which that spouse’s efforts contributed” (McSparron v McSparron, 87 NY2d 275, 282 [1995], rearg dismissed 88 NY2d 916 [1996]).

2006I therefore conclude that the court properly awarded defendant 40% of the enhanced earning capacity achieved by plaintiff during the marriage (see Holterman, 3 NY3d at 7-9 [awarding nontitled spouse 35% of other spouse’s enhanced earning capacity]; Lipsky v Lipsky, 276 AD2d 753 [2000] [50%]; Reczek v Reczek, 239 AD2d 867, 868 [1997] [35%], abrogated on other grounds by Corasanti v Corasanti, 296 AD2d 831 [2002]; see also Krigsman v Krigsman, 288 AD2d 189, 191 [2001] [50%]; McNally v McNally, 251 AD2d 302, 303 [1998] [50%]; Vainchenker v Vainchenker, 242 AD2d 620, 621 [1997] [50%]).

2006I therefore conclude that the court properly awarded defendant 40% of the enhanced earning capacity achieved by plaintiff during the marriage (see Holterman, 3 NY3d at 7-9 [awarding nontitled spouse 35% of other spouse’s enhanced earning capacity]; Lipsky v Lipsky, 276 AD2d 753 [2000] [50%]; Reczek v Reczek, 239 AD2d 867, 868 [1997] [35%], abrogated on other grounds by Corasanti v Corasanti, 296 AD2d 831 [2002]; see also Krigsman v Krigsman, 288 AD2d 189, 191 [2001] [50%]; McNally v McNally, 251 AD2d 302, 303 [1998] [50%]; Vainchenker v Vainchenker, 242 AD2d 620, 621 [1997] [50%]).

2006I therefore conclude that the court properly awarded defendant 40% of the enhanced earning capacity achieved by plaintiff during the marriage (see Holterman, 3 NY3d at 7-9 [awarding nontitled spouse 35% of other spouse’s enhanced earning capacity]; Lipsky v Lipsky, 276 AD2d 753 [2000] [50%]; Reczek v Reczek, 239 AD2d 867, 868 [1997] [35%], abrogated on other grounds by Corasanti v Corasanti, 296 AD2d 831 [2002]; see also Krigsman v Krigsman, 288 AD2d 189, 191 [2001] [50%]; McNally v McNally, 251 AD2d 302, 303 [1998] [50%]; Vainchenker v Vainchenker, 242 AD2d 620, 621 [1997] [50%]).

2006I therefore conclude that the court properly awarded defendant 40% of the enhanced earning capacity achieved by plaintiff during the marriage (see Holterman, 3 NY3d at 7-9 [awarding nontitled spouse 35% of other spouse’s enhanced earning capacity]; Lipsky v Lipsky, 276 AD2d 753 [2000] [50%]; Reczek v Reczek, 239 AD2d 867, 868 [1997] [35%], abrogated on other grounds by Corasanti v Corasanti, 296 AD2d 831 [2002]; see also Krigsman v Krigsman, 288 AD2d 189, 191 [2001] [50%]; McNally v McNally, 251 AD2d 302, 303 [1998] [50%]; Vainchenker v Vainchenker, 242 AD2d 620, 621 [1997] [50%]).

2005Although plaintiffs’ notice of appeal is from Supreme Court’s March 3, 2004 decision rather than the subsequent order and judgment dated March 31, 2004 and entered April 6, 2004, this Court may, in the interest of justice, treat the notice of appeal as premature and reach the merits (see Matter of Isaiah O. v Andrea P., 287 AD2d 816 , 817 n [2001]; see also CPLR 5520 [c]).

2004The Goodman court relied on our decisions in McSparron v McSparron ( 87 NY2d 275 [1995]) and Grunfeld v Grunfeld ( 94 NY2d 696 [2000]), cases discussing the relationship between equitable distributions under the O’Brien rule and maintenance awards.

2004The Goodman court relied on our decisions in McSparron v McSparron ( 87 NY2d 275 [1995]) and Grunfeld v Grunfeld ( 94 NY2d 696 [2000]), cases discussing the relationship between equitable distributions under the O’Brien rule and maintenance awards.

2004In 19 years, not one other state has adopted the O’Brien rule, 3 and Iowa seems to have backed away (In re Marriage of Francis, 442 NW2d 59 [Iowa 1989]).

2004In 19 years, not one other state has adopted the O’Brien rule, 3 and Iowa seems to have backed away (In re Marriage of Francis, 442 NW2d 59 [Iowa 1989]).

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001The Court of Appeals found it to be “a valuable property right, reflected in the money, effort and lost opportunity for employment expended in its acquisition, and also in the enhanced earning capacity it affords its holder.” (Id., at 586.) The O’Brien analysis is not limited to professional licenses and has been used to find a medical board certification (Savasta v Savasta, 146 Misv 2d 101 [Sup Ct, Nassau County]), a law degree (Cronin v Cronin, 131 Misc 2d 879 [Sup Ct, Nassau County]), an accounting degree (Vanasco v Vanasco, 132 Misc 2d 227 [Sup Ct, Nassau County]), a podiatry practice (Mor

2001All of these decisions, like O’ Brien (supra), base their finding of marital property on the “enhanced earning capacity” which the “thing of value” provided to its holder.

2001All of these decisions, like O’ Brien (supra), base their finding of marital property on the “enhanced earning capacity” which the “thing of value” provided to its holder.

1994The Supreme Court granted certiorari and reversed, finding that the regulation on prostitution was not a content-based regulation on speech nor was it a regulation on conduct with an expressive element ( 478 US 697 ).

1994The Supreme Court granted certiorari and reversed, finding that the regulation on prostitution was not a content-based regulation on speech nor was it a regulation on conduct with an expressive element ( 478 US 697 ).

1986Defendants also seek to justify dismissal under the constitutional right of privacy citing People v Onofre ( 51 NY2d 476 ).

1985In O’Brien , the Court held that where “speech” and “non-speech” elements are combined in the same course of conduct, a law aimed at the “nonspeech” elements, but having an “incidental” effect on the protected expression, is justified “if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the govern mental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest”. ( 391 US, at p 3

1985In O’Brien , the Court held that where “speech” and “non-speech” elements are combined in the same course of conduct, a law aimed at the “nonspeech” elements, but having an “incidental” effect on the protected expression, is justified “if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the govern mental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest”. ( 391 US, at p 3

1985Van De Kamp v American Art Enters., 75 Cal App 3d, at p 531,142 Cal Rptr, at p 342, supra; Commonwealth v Croatan Books, 228 Va, at p_, 323 SE2d, at p 88 , supra). 9 We agree with these decisions, and thus turn to an application of the four-part O’Brien test.

1985Van De Kamp v American Art Enters., 75 Cal App 3d, at p 531,142 Cal Rptr, at p 342, supra; Commonwealth v Croatan Books, 228 Va, at p_, 323 SE2d, at p 88 , supra). 9 We agree with these decisions, and thus turn to an application of the four-part O’Brien test.

1985In O’Brien , the Court held that where “speech” and “non-speech” elements are combined in the same course of conduct, a law aimed at the “nonspeech” elements, but having an “incidental” effect on the protected expression, is justified “if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the govern mental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest”. ( 391 US, at p 3

1985In O’Brien , the Court held that where “speech” and “non-speech” elements are combined in the same course of conduct, a law aimed at the “nonspeech” elements, but having an “incidental” effect on the protected expression, is justified “if it is within the constitutional power of the Government; if it furthers an important or substantial governmental interest; if the govern mental interest is unrelated to the suppression of free expression; and if the incidental restriction on alleged First Amendment freedoms is no greater than is essential to the furtherance of that interest”. ( 391 US, at p 3