Opinion
July 15, 1994
Appeal from the Supreme Court, Genesee County, Graney, J.
Present — Pine, J.P., Balio, Fallon, Wesley and Davis, JJ.
Judgment unanimously modified on the law and as modified affirmed without costs and matter remitted to Supreme Court for further proceedings in accordance with the following Memorandum: Supreme Court properly classified 27 shares of defendant's closely-held corporation transferred to defendant during the marriage as marital property (see, Sclafani v. Sclafani, 178 A.D.2d 830; Hackett v. Hackett, 147 A.D.2d 611, 614; Wegman v Wegman, 123 A.D.2d 220, 230). Defendant did not meet his burden of establishing that the shares were separate property (see, McSparron v. McSparron, 190 A.D.2d 74, 77; Heine v. Heine, 176 A.D.2d 77, 83, lv denied 80 N.Y.2d 753). The court acted within its discretion when it used the asset valuation method to value the shares of the corporation (see, Wilbur v. Wilbur, 116 A.D.2d 953). The court also properly held that plaintiff was entitled to share in the appreciation of the remaining 30 shares of the corporation that were determined to be defendant's separate property, based upon plaintiff's contributions as a homemaker and through outside employment (see, Derderian v. Derderian, 167 A.D.2d 158, lv denied 77 N.Y.2d 804; Robinson v. Robinson, 166 A.D.2d 428, 430, lv denied 77 N.Y.2d 807; Lord v. Lord, 124 A.D.2d 930).
The court properly considered the parties' pre-divorce standard of living as well as the reasonable needs of plaintiff and the means of defendant in setting maintenance (see, Domestic Relations Law § 236 [B] [6] [a]; Burns v. Burns, 193 A.D.2d 1104, 1105, lv granted 82 N.Y.2d 664). The court also properly considered the earning capacity of defendant rather than the income reported on his tax returns (see, Hollis v. Hollis, 188 A.D.2d 960, 961; Rosenberg v. Rosenberg, 155 A.D.2d 428, 431). The seven-year duration of maintenance, which will allow plaintiff to complete her master's degree and will continue for a reasonable time thereafter, was proper, particularly given the disparity in earning capacities (see, Bohnsack v. Bohnsack, 185 A.D.2d 533, 534; Benisatto v. Benisatto, 151 A.D.2d 533; see also, Schlosberg v. Schlosberg, 163 A.D.2d 381).
The court's child support award is not substantiated by the record because the court failed to set forth the manner in which it calculated the parties' income and its preliminary calculations of basic child support (see, Lesch v. Lesch, 201 A.D.2d 900; Costanza v. Costanza [appeal No. 2], 199 A.D.2d 988, 990). In addition, although the court properly ordered defendant to pay the college tuition of the two older daughters (see, Cockrell v. Cockrell, 172 A.D.2d 1024; see also, Matter of Cassano v. Cassano, 203 A.D.2d 563), it was premature to order him to pay the college tuition of the two younger daughters (see, Nolfo v Nolfo, 188 A.D.2d 451, 454-455; Graham v. Graham, 175 A.D.2d 540, 542). We modify the judgment appealed from, therefore, by deleting the twenty-first and twenty-second decretal paragraphs, that portion of the twenty-third decretal paragraph concerning the payment of child support, and that portion of the twenty-sixth decretal paragraph requiring defendant to pay the college tuition expenses of Erica and Alexandra; we remit the matter to Supreme Court to make the necessary calculations and findings in arriving at a child support award.