Political Career Deemed Marital Property


The political career of a former six-term Congressman is marital property, an appellate court ruled yesterday, and any award of equitable distribution in his divorce must reflect the impact his political status might have on his earning capacity when he returns to the practice of law.

The Appellate Division, Third Department’s 3-1 decision in Martin v. Martin, 69709, applies precedents that focused on the potential earnings of a professional spouse just beginning a career to the potential earnings of a career resumed closer to the twilight years.

David O. Martin, of Canton, ended his private law practice when he was first elected as a Republican Congressman in 1980, representing a district that stretched from Lake Ontario to Lake Champlain. He remained in the House of Representatives through 1992.

In a majority opinion by Justice Karen K. Peters, the Appellate Division found that his law license "re-emerged as a separate and valuable asset upon the termination of his Congressional career, with the valuation thereof enhanced by virtue of defendant’s Congressional experience." And it remitted the case to Supreme Court "for further testimony on the value of these enhancements," which it conceded would pose complex and unique valuation issues.

Dissenting Justice Thomas E. Mercure said the ruling "presents an impossible appraisal problem" and expands the Court of Appeals’ 1985 ruling in O’Brien v. O’Brien, 66 NY2d 576, "well beyond its intended reach."

O’Brien, holding that a professional license acquired during marriage is subject to equitable distribution, dealt with a case "where the license was newly earned and the husband’s career had nothing but potential," he said. "To apply the O’Brien doctrine here and attempt to place a value upon the product of a defunct political career and a license that had not been utilized for at least 12 years is nothing less than folly." That Supreme Court had found that Mr. Martin’s Congressional career was marital property, but Mr. Martin announced he would not run for re-election before any value was set.

Supreme Court apparently based its equitable distribution order on his earning capacity as a lawyer in Canton, where Mr. Martin began his legal practice in 1974.

The trial court’s valuation did not reflect the fact that Mr. Martin did not have an established law practice and "further failed to address the impact. that defendant’s status as a former Representative might have on his future compensation as an attorney," the Appellate division said, and therefore its analysis was not "grounded in the ‘economic reality’ the defendant actually faced."

The majority also said the trial court erred in assuming that Mr. Martin would practice only in Canton, where small population would limit a lawyer’s earning potential, since his law license "may be used anywhere in New York, as well as other areas where license reciprocity is recognized."

It ruled, "[The] valuation of a license which has re-emerged as a valuable asset, following abandonment of a previous career or practice, is necessarily a valuation of potential earning capacity and may not be limited geographically in the absence of good cause."

Mr. Martin was represented by Keith B. Caughlin, of Hiscock & Barclay in Watertown, and DeeAnn H. Martin by Edward B. Alderman, of Alderman & Alderman in Syracuse.

Utility Rates

In another case, Bourquin v. Cuomo, 70499, the Appellate Division struck down on constitutional grounds an executive order the Governor issued in 1991 creating a Citizen’s Utility Board (CUB) to represent the interests of utility customers in rate proceedings before the Public Service Commission.

The Atlantic Legal Foundation, Citizens for a Second Economy and two Republican Assemblymen complained the order violated the separation of powers doctrine. The court agreed in a unanimous opinion by Justice Mercure, finding that the order "encroached upon the legislative function" and contradicted existing legislative policy, which makes the PSC, Consumer Protection Board and Attorney General responsible for protecting consumer in utility proceedings.

In People v. William M. Martin, 65900, the Appellate Division retroactively applied the Court of Appeals ruling in People v. Dokes, 79 NY2d 656, and ordered a new trial for a Warren County defendant who had been excluded from a Sandoval hearing. The high court gave Dokes retroactive effect last year in People v. Favor, 82 NY2d 254, despite warnings from prosecutors that it would lead to "wholesale reversals."

Dokes held that exclusion from a Sandoval hearing requires reversal unless the defendant’s presence would have been "superfluous." The Third Department said that could not be certain in Martin, involving a conviction for second degree escape, "since the outcome of the proceeding was not wholly favorable.

GARY SPENCER