This motion by the husband for an order pursuant to DRL 236(B)(1) declaring that his promotion is not a marital asset subject to equitable distribution. The wife cross moves for an order declaring 1) that said promotion is a marital asset subject to equitable distribution and 2) that she made direct and indirect contribution to the attainment of the promotion.

The parties were married on August 22, 1997. There are no children of the marriage. The wife is 37 and the husband is 39 years old.

The wife resides in the marital residence in Commack purchased by the parties in 1999 for $200,000.00. There is a mortgage on the premises of $164,000.00. The parties estimate the marital residence is worth $380,000.00. The parties have lived apart since in or before January 2003. The above captioned action for divorce was commenced in June 2003.

The wife is a high school graduate. She works for North Shore Hematology. She earned $55,238.00 gross in 2002.

The husband is a high school graduate. He began working for the LIRR on April 16, 1990 as a "Car Appearance Maintainer" at a salary of $18.92 an hour. In August 1999, he began to receive classroom instruction and workshop training from his employer with a goal of obtaining a promotion to the position of "Car Repairman." He attended the LIRR's "Car Repair Training Program" for a period of six months. Classes and workshops were held five days a week for eight hours during his regular work hours. During the six month period he was in the training program, the husband received full compensation for a 40 hour work week. He was not required to pay any tuition or other fee to participate in the training program. Upon the completion of the program he received a "certificate of completion" and became eligible for a promotion. He received a promotion from "Car Appearance Maintainer" to "Car Repairman" on October 1, 2000. His hourly rate of pay increased upon receipt of said promotion from [*2]approximately $20.00 an hour to $24.26 an hour. In 2002, he earned $75,104.00, including overtime, plus a pension contribution paid by his employer of $2253.00.

A neutral expert appointed by the Court compared the husband's projected work life earnings as a "Car Appearance Maintainer" with his projected work life earnings as a "Car Repairman" and determined that the present value of the increased earnings is $172,000.00.

The wife contends that the value of said increased earnings resulting from the six month course of study and the promotion constitutes a marital asset subject to equitable distribution. She has submitted an expert's affidavit that states that as a result of the training program the husband acquired repair skills that would be useful in the event he were to work for another railroad; that by virtue of the training program the husband became "licensed" to purchase freon enabling him to do air conditioning maintenance; and he could also do repair work on heavy machinery.

The wife states that she helped the husband study for the training program exams. In addition, as he was unable to work overtime while in the program, she worked overtime at her job to compensate for lost income. Further, during the period the husband was in the training program, she assumed full responsibility for household chores. She states that while he was studying, the husband stopped helping her with laundry and bill paying, and she assumed the job of mowing the lawn.

The husband points out that he did not receive a license or degree as a result of the training program in issue. He contends that said training program did nothing to enhance his ability to earn except to qualify him for a promotion with the LIRR.

The law is well settled in the Second Department that promotions resulting from courses of study and training programs that do not lead to the attainment of a degree or license are not considered marital assets subject to equitable distribution (see, Milteer v Milteer, 280 AD2d 530; Bystricky v Bystricky, 177 Misc2d 914: see also, Spense v Spense, 287 AD2d 447: West v West, 213 AD2d 1025, leave dismissed 86 NY2d 885). The husband did not acquire a degree upon the completion of the six month training program. He did not acquire a license other than a certificate qualifying him to purchase freon. While it is clear that he did obtain certain skills in the repair of railroad cars that might be of value in obtaining work with an employer other than the LIRR, the acquisition of said skills is not recognized as a marital asset in the Second Department. Accordingly, the husband's motion is granted and the wife's cross motion is denied.

The Court notes in passing, that even if precedent permitted this Court to equitably distribute the present value of the husband's promotion, the wife's entitlement to share in said asset would have been limited as the husband worked full time during the course of the training that qualified him for the promotion; the training lasted only six months; the parties did not incur any expense for tuition or fees; and the wife suffered no loss to her own career by virtue of the [*3]husband's participation in the training program.

This constitutes the decision and order of the Court. The parties and counsel shall appear at the certification conference on October 12, 2004 at 2:00p.m. It is expected that all discovery will be completed by that date.

E N T E R:

_________________________

Anthony J. Falanga, Justice

Supreme Court, Nassau County

Dated: September 21, 2004

Mineola, NY