Opinion
No. 50561/12.
02-20-2015
Virginia ALVARADO, Plaintiff, v. Raymond A. ALVARADO, Defendant.
Procedural History
By Summons with Notice filed June 19, 2012, Plaintiff Wife, Ms. Virginia Alvarado, (hereinafter “Wife”) commenced this action for divorce against Defendant Husband, Raymond Alvarado (hereinafter “Husband”). Husband first appeared in this action by Notice of Appearance with a Demand for Complaint dated June 27, 2012. Wife filed a Verified Complaint on July 3, 2012 wherein she requested a divorce on the grounds that the parties' marriage had broken down irretrievably for a period of six months. See DRL § 170(7). Wife also sought ancillary relief including the distribution of marital property and an award of spousal maintenance. Husband filed an Answer to Wife's complaint on or about September 21, 2012.
During the pendency of this action, in or around September of 2012, Husband filed a motion seeking a declaration from the Court that his veterans' disability benefits are separate property and for an Order allowing him to utilize them as such. (Motion Seq. No. 001). Husband receives approximately $3460 a month in compensation for injuries sustained for his service to this country during the Vietnam War. By Decision and Order dated January 15, 2013 this Court found that Husband's benefits were separate property and not subject to the principles of equitable distribution or maintenance. See Hoskins v. Skojec, 265 A.D.2d 706 (3rd Dept.1999), lv. denied 94 N.Y.2d 758 (2000) ; See also Newman v. Newman, 248 A.D.2d 990 (4th Dept.1998) ; Carl v. Carl, 58 AD3d 1036 (3d Dept.2009) ; Mills v.. Mills, 22 AD3d 1003 (3rd Dept.2005). However, upon re-argument, the Court clarified its ruling by indicating that Wife would still be afforded an opportunity to assert claims regarding the alleged transmutation of Husband's separate property into joint property. (See Decision and Order dated August 5, 2013.)
In addition to requesting re-argument, Wife's motion dated February 20, 2012 (Motion Seq. No. 002) also sought an award of pendente lite maintenance. By Decision and Order dated August 5, 2013 Wife was awarded the sum of $8,920 a year in temporary maintenance in compliance with the statutory formula set forth in Domestic Relations Law § 236.
Following the issuance of this Court's decision regarding Husband's veteran's disability benefits, and the Court maintaining its ruling upon reargument, Wife moved to discontinue this divorce action based upon an alleged desire to reconcile. Husband cross moved to amend his Answer to include a counterclaim for divorce based upon the irretrievable breakdown of the marriage. By Decision and Order dated January 31, 2013 this Court granted both Husband's application to amend his Answer and Wife's application to withdraw her Complaint.
On March 21, 2014 Wife filed a Jury Demand seeking a jury trial on the issue of grounds. By Notice of Motion filed April 9, 2014 Husband moved for an Order vacating the Jury Demand, and granting summary judgment to Husband on the issue of grounds. By Decision and Order dated July 24, 2014 this Court granted Husband's application for summary judgment as there was no material issue of fact regarding the grounds for divorce. In support of his application Husband swore under oath that the marriage had broken down irretrievably for a period of six months in compliance with the plain language of DRL § 170(7). Moreover, the Court held that Wife was estopped from denying that the marriage was broken down irretrievably as she had previously sworn that it had in both her initial Summons and Complaint and in both the Preliminary Conference Order and a separate Grounds Order. While summary judgment was granted to Husband, the granting of a judgment of divorce was held in abeyance pending the resolution of ancillary issues.
Following extensive motion practice, this divorce matter was tried on three consecutive days from September 15, 2014 to September 17, 2014. At trial, Wife testified on her own behalf and called Husband as a witness. Wife introduced various documents into evidence. (Pl. ex. 1 to 26). Husband testified on his own behalf and introduced documents into evidence. (Def.ex.A–N). As Wife objected to the granting of summary judgment, and since Husband was not opposed to testifying on the subject in an abundance of caution, the Court allowed direct testimony on the issue of grounds together with cross examination from Wife. While the Court adheres to its ruling on summary judgment, a judgment of divorce could equally be granted based upon Husband's credible testimony at trial regarding the breakdown of the marriage. At the conclusion of the trial, by the agreement of the parties, a post trial hearing was held on the issue of counsel fees on September 18, 2014.
Findings of Fact
The parties were married on June 21, 1980 in a religious ceremony. There are no children of this union though Husband has an adult child from a prior marriage. At the time of trial Husband was 68 years old and Wife was 62 years old. During the course of their marriage the parties split their residence between their condominium in Florida and the former marital home in New York, but since the commencement of the action Husband has primarily resided in Florida while Wife resides in New York. Wife does not allege that she has any significant medical issues but Husband describes his health as poor. Husband suffered from an injury during the Vietnam War which required the implantation of a defibrillator. Husband also suffers from Barretts Esophagus syndrome, recurring cancer, diabetes and knee conditions, together with lingering issues from shrapnel and gunshot wounds sustained during the war. (Tr. 9/17/14 p. 297)
Both parties are currently retired, but during the course of their marriage they were both employed by Verizon. Both parties are in pension payout status from benefits obtained during their employment. Husband receives an annual pension payout of $20,436. In addition to his Verizon pension, Husband also receives social security disability benefits in an annual amount of $23,625 and veterans disability benefits as described above in an annual amount of $41,521. Wife receives a Verizon pension payout in an annual amount of $16,164 together with an annual social security payout of $15,816.
While Wife has withdrawn her Complaint, and attempted to discontinue this divorce action as a whole, she still seeks an award of equitable distribution, maintenance, and counsel fees in relation to Husband's counter claim for divorce. As the matrimonial courts have adopted a liberal policy of allowing affirmative claims in the absence of a pleading, the Court will consider Wife's requests for relief on their merits. See Otto v. Otto, 150 A.D.2d 57 (2d Dept.1989) ; See also Rosen v. Rosen, 308 A.D.2d 482 (2d Dept.2003). Husband seeks a distribution of the marital assets, but no other ancillary relief. Husband stands in opposition to Wife's claim for maintenance and counsel fees.
Maintenance
Wife seeks an award of non-durational or “lifetime” maintenance in the monthly amount of $3,026. This is a marriage of 32 year duration. Wife is 62 years old and Husband is 68 years old. Both parties are currently retired from the workforce. They both retired from employment with Verizon, one month apart from one another. Wife is generally in good health, while Husband's health is poor, as detailed above. In support of her application Wife argues that Husband is the monied spouse as he receives income from three sources, including his veteran's disability benefits, social security benefits, and his Verizon Pension. Husband opposes Wife's application for maintenance in its entirety arguing that both parties are retired from similar employment with Verizon, and that their respective incomes are similar. Husband asserts that Wife is self supporting, and that both parties have robust individual retirement accounts (IRAs) from which they can withdraw money to fund their retirement, together with similar pensions and social security benefits.
The purpose of durational maintenance is to encourage and foster a spouse's ability to become self supporting. See Bloom v. Petryk–Bloom, 2013 N.Y. Slip. Op. 1367 (2d Dept.2013). When considering the duration of maintenance the Court must consider the amount of time it will likely take, through education and training, for a spouse to become self supporting. See Krigsman v. Krigsman, 288 A.D.2d 189 (2d Dept.2001). However, in certain circumstances, where it can be established that the receiving spouse has little reasonable chance of becoming self supporting, an award of non-durational, or lifetime maintenance may be appropriate. See Keane v. Keane, 25 AD3d 729 (2d Dept.2006) ; See also, Wexler v. Wexler, 34 AD3d 458 (2d Dept.2006). In determining if an award of maintenance is warranted the Court is directed to consider a number of statutory factors including the duration of the marriage, the age and health of the parties, their present and future earning capacities, their established standard of living, and awards of equitable distribution. See DRL § 236(B)(6) ; See also, Lubrano v. Lubrano, 122 AD3d 807 (2d Dept.2014).
Wife argues that Husband's income surpasses hers such that an award of maintenance is appropriate. In support of her argument Wife indentifies three income sources available to Husband. Husband earns approximately $23,625 a year from Social Security, approximately $20,436 a year from his Verizon pension, and approximately $41,521 a year from his veteran's disability benefits. While Wife's summary of Husband's income is unopposed, Husband argues that the Court is prohibited from considering his veteran's disability benefits as income, citing this Court's prior ruling regarding those benefits. (See Decision and Order dated January 15, 2013).
The Appellate Division, Second Department, has yet to rule upon the application of Veteran's Disability Benefits to an award of maintenance. However the issue has been addressed by the Appellate Division, Third Department. In the absence of contradictory Second Department precedent the Third Department holding is binding upon this Court. See Mountain View Coach Lines, Inc. v. Storms, 102 A.D.2d 663 (2d Dept.1984) ; See also, People v. Briscotti, 169 Misc.2d 672 (1st Dept.1996). As clearly stated by the Appellate Division Third Department, “a court in an action for divorce or separation cannot order as spousal maintenance the allocation of compensation received by a veteran derived from veteran's disability benefits.”Mills v. Mills, 22 AD3d 1003 (3rd Dept.2005) ; See also, Hoskins v. Skojec, 265 A.D.2d 706 (3rd Dept.1999) ; Carl v. Carl, 58 AD3d 1036 (3d Dept.2009). As this is the only appellate precedent available, the Court stands by its initial ruling that it cannot utilize Husband's veteran's disability benefits when considering whether or not to award maintenance. Wife's reliance on Nizolek v. Nizolek, 93 AD3d 934 (3rd Dept.2012) as contrary precedent is misplaced. In Nizolek the Third Department clearly distinguished the application before it, one for spousal support under FCA § 413, from the application presently before this court for maintenance under the Domestic Relations Law. Following the logic of the Third Department, an application for spousal support under the Family Court Act contemplates the family unit remaining intact, where in a matrimonial proceeding the marital union is dissolved. While the Court is aware of the contrary view taken by the Monroe County Supreme Court, and relied upon by Wife, that decision is not binding on this Court and moreover is easily distinguishable, as that case involved a veterans' “application to receive temporary maintenance” which would obviously not require the distribution of his benefits. See Dachille v. Dachille, 43 Misc.3d 241 (Sup.Ct. Monroe Cty.2014), (emphasis in original). In the case before this court Husband is not seeking support from Wife.
Under the legislative intent of the Federal Statute at Issue “veteran's disability benefits are intended to provide reasonable and adequate compensation for disabled veterans and their families” As the commencement of a divorce action ends the marital partnership, Wife is arguably no longer a member of Husband's family. In contrast, any dependent children would arguably remain part of the family unit post divorce. See Rose v. Rose, 481 U.S. 619, 107 S.Ct. 2029 (1987).
Turning to Husband's next source of income, the Court notes that Husband's pension from his employment with Verizon is in payout status. By Consent Short Form Order dated September 15, 2014 Wife was awarded her equitable share of this pension as a marital asset. When a pension is in pay status “care must be taken to avoid double counting of the interdependent issues of distribution of a pension and maintenance” See Bellizzi v. Bellizzi, 107 AD3d 1361 (3rd Dept.2013). Once “a court coverts a specific stream of income into an asset, that income may no longer be calculated into the maintenance formula and payout”. Haspel v. Haspel, 78 AD3d 887 (2d Dept.2010) ; See also Rubin v. Rubin, 63 AD3d 549 (1st Dept.2009) ; Grunfeld v. Grunfeld, 94 N.Y.2d 696 (2000). As Wife consented to Husband's pension being treated as an asset, the Court is unable to consider that income when determining if an award of maintenance is proper. See Messemer v. Messemer, 272 A.D.2d 672 (3rd Dept.2000) ; See also Tolosky v. Tolosky, 304 A.D.2d 876 (3rd Dept.2003). As the September 15th Short Form Order provided for the distribution of both Husband, and Wife's pensions, the same law applies to Wife's income stream.
For the reasons set forth above, for the purposes of determining if an award of maintenance is appropriate, and the amount of any such award, Husband's income is limited to his Social Security Benefits in the annual amount of $23,625. See Cerabona v. Cerabona, 302 A.D.2d 346 (2d Dept.2003) ; See also, Spencer v. Spencer, 230 A.D.2d 645 (1st Dept.1996) ; Keane v. Keane, 25 AD3d 729 (2d Dept.2006). For similar reasons, Wife's annual income is limited to her Social Security Benefits in the amount of $15,816. This calculation results in an annual difference of $7,809.
In addition to the limited income disparity between the parties, the Court notes that Wife is receiving her equitable share of two marital properties, with a significant “origination credit” for monies she contributed to the purchase of the former marital residence. The Court also notes that both parties are in possession of separate IRA accounts in excess of $500,000 each. In fact, Wife testified that these retirement accounts are “worth well over half a million dollars each”. (Tr. 9/15/14 p. 72). Wife further testified that there will be no tax consequence for withdrawing from the IRA to fund her retirement. (Tr. 9/16/14 p. 142). When considered in conjunction with the equity in the marital properties, both parties are in possession of considerable assets to fund their retirement. Moreover, after consideration of the credits being awarded herein, Wife is receiving a larger share of equitable distribution than Husband. See Grumet v. Grumet, 37 AD3d 534 (2d Dept.2007).
In addition to income, and assets, the Court has considered the established standard of living of the parties. While both parties testified credibly to a comfortable standard of living, neither party described a lifestyle that cannot be generally maintained by the use of their individual retirement accounts, pensions and social security benefits. While both parties may have to scale back their discretionary expenditures, this is to be expected as a byproduct of divorce, especially where the parties are on a fixed income.
In support of her application Wife argues that there is a large disparity between the parties' respective living expenses as set forth in their Statements of Net Worth. (Pl.Ex. No. 9 & Def. Ex. M .). Wife argues that she needs an award of maintenance to cover her reasonable expenses.
Wife did not file an updated Statement of Net Worth as required for trial by the Order of this Court dated January 31, 2013 and the Part Rules. (Tr. 9/16/14 p. 155). Instead, Wife relied upon her original Statement of Net Worth which was filed in July of 2012. (Pl.Ex. No. 9). In regard to the expenses listed in this original financial statement, the Court notes that the parties' have agreed to sell both of the marital properties and split the proceeds. (J.N. No. 3). Accordingly, the housing, insurance, real estate tax, and utility expenses relied upon in Wife's Statement of Net Worth will soon be irrelevant. Wife has not supplied information in admissible format regarding what her estimated expenses will be post divorce. Moreover, the Court notes that many of the expenses listed on Wife's Statement of Net Worth are discretionary at best, or confusingly combined with Husband's expenses. Amongst these expenses are combined “recreational” expenses of $772 including an expense of $305 for “Golf and Hunting”, combined “miscellaneous” expenses in the amount of $965 including a $200 a month expense for “Gifts” and an unexplained $600 monthly expense to Dell Computers. Finally, Wife's Statement of Net Worth includes a preemptory statement wherein she indicates that the sworn to expenses listed therein are based in part upon historical data together with data based upon “life's experiences and the probabilities of contingencies occurring”. This statement indicates that Wife's expenses are speculative at best.
Wife attempted to update and explain her Net Worth Statement through testimony at trial, however, in doing so she repeatedly indicated that she was unsure of the amounts, and could not remember the details of her expenses. (Tr. 9/15/14 pp. 125–133). In addition to her testimony, on September 16, 2014 Wife supplied a handwritten summary of her estimated expenses which totaled $3,309 a month. (Pl .Ex. No. 14). However, after a lunch break Wife supplied a second handwritten summary of estimated expenses totaling $5,691 a month. (Pl.Ex. No. 20). Wife testified that she prepared the second summary “a week or two” after the first. (Tr. 9/17/14, p. 345). The Court notes that both of these documents, while admitted into evidence on consent, are unsworn and unsupported by documentation. As the documents are not compliance with DRL § 236(B)(4)(a) and 22 NYCRR § 202.16 they are an insufficient substitute for an updated Net Worth Statement. See Matter of Ana A. v. Jospeh C., 120 AD3d 1118 (1st Dept.2014) ; See also, Bertone v. Bertone, 15 AD3d 326 (2d Dept.2005) ; Belmore–Gaillard v. Gaillard, 51 AD3d 603 (1st Dept.2008). As Wife's monthly expenses are based upon information that is either outdated, unsworn, unsupported, or speculative, her Statement of Net Worth and supplemental documents are not overly probative in regard to her application for maintenance. (Tr. 9/16/14, pp. 153–155).
As required by statute, the Court has also considered the duration of this marriage and the age and comparative health of the parties. While the long duration of this marriage would generally be a factor in support of an award of maintenance, it is outweighed by the competing factors. Moreover, the duration of a marriage is a factor most appropriate to the determination of the duration of support, not if support is warranted. See Ansour v. Ansour, 61 AD3d 536 (1st Dept.2009) ; See also, Sass v. Sass, 276 A.D.2d 42 (2d Dept.2000). As for the health of the parties, Wife is in good health while Husband's health is poor. Husband is also six years older than Wife. Under these circumstances, while both parties are retired, Wife is in a much better position to reenter the workforce to supplement her income, if she desired to do so. Husband's income is likely to remain the way it currently is, other than cost of living increases.
Therefore, after consideration of all the factors indicated in DRL § 236, with considerable weight given to the factors addressed above, the Court finds that an award of non-durational maintenance to Wife is not warranted. See Brian v. Brian, 36 AD3d 847 (2d Dept.2007) ; See also, Filippazzo v. Filippazzo, 121 AD3d 835 (2d Dept.2014) ; Carr–Harris v. Carr–Harris, 98 AD3d 548 (2d Dept.2012). After application of the law as it now exists in relation to Husband's Veteran's Disability Benefits, and Wife's decision to treat Husband's pension as an asset rather than an income source, the parties are in a comparable financial situation. In fact, due to equitable distribution credits, Wife's assets likely exceed Husband's. Moreover, the Court notes that awards of maintenance generally end when the receiving spouse becomes eligible for social security benefits, or retirement benefits, both events which have already occurred. See Alleva v. Alleva, 112 AD3d 567 (2d Dept.2013) ; See also, Lorenz v. Lorenz, 63 AD3d 1361 (3rd dept.2009).
“The overriding purpose of a maintenance award is to give the spouse economic independence”. Cohen v. Cohen, 120 AD3d 1060 (1st Dept.2014). Here Wife's access to a robust retirement account together with her pension, her share of Husband's pension, social security, and her equitable share of the marital assets are sufficient to render her self supporting. See Wing v. Wing, 57 AD3d 535 (2d Dept.2008) ; See also, Calandra v. Calandra, 303 A.D.2d 704 (2d Dept.2003). While an unsuitable replacement for a sworn Statement of Net Worth, Wife's handwritten monthly expense summary estimates her monthly expenses to be $5,291 a month, (Pl.Ex. No. 20). However, Wife admitted on cross examination that she was not paying the car payment of $570 indicated on her summary and has not researched how much a replacement vehicle would cost when the lease ends. (Tr. 9/17/14 p. 346 & 351). Accordingly, Wife's summary of monthly expenses should actually calculate to $4,721, an amount supportable by her income, retirement funds and distributive awards after discretionary expenses are reduced.
The Court notes that Plaintiff's Exhibit Number 20 includes a pencil calculation which purports to be the sum of Wife's monthly expenses in the amount of $5,691, however, by the Court's calculation the sums included add up to the sum of $5,291.
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Finally, the Court notes that an award of rehabilitative durational maintenance is not warranted here, as the parties were both employed in the same field, and both retired at the same time with similar pensions. Wife did not offer any testimony regarding the need for training or education to allow her to reenter the workforce. While Wife has not indicated a desire to end her retirement, the Court finds that, for the reasons set forth above, Wife is in a vastly better position that Husband to reenter the workforce to supplement her income if she so chooses. See DeSantis v. DeSantis, 205 A.D.2d 928 (3rd Dept.1994).
For the reasons set forth above, Wife's application for maintenance is denied in its entirety. See, Nicodemus v. Nicodemus, 98 AD3d 605 (2d Dept.2012) ; See also, Epstein v. Epstein, 289 A.D.2d 78 (1st Dept.2001).
Equitable Distribution
The Domestic Relations Law recognizes that a marriage relationship is an economic partnership. As such, during the course of a marriage spouses share in both its profits and losses. When the marriage comes to an end, courts are required to equitably distribute both the assets and liabilities remaining from the marriage. See Fields v. Fields, 15 NY3d 158 (2010). A trial court considering the factors set forth in the Domestic Relations Law has broad discretion in deciding what is equitable under all of the circumstances. See Krolikowski v. Krolikowski, 110 AD3d 1449 (4th Dept.2013). Indeed, when it comes to the equitable distribution of marital property, Domestic Relations Law § 236(B)(5)(d)(13) authorizes the trial court to take into account “any other factor which the court shall expressly find to be just and proper.” Consequently, the trial court has substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances. See Mahoney–Buntzman v. Buntzman, 12 NY3d 415 (2009). Equitable distribution does not necessarily indicate equal distribution. See Henry v. Henry, 105 AD3d 903 (2d Dept.2013).
a. Verizon Pensions
During the course of the marriage both parties were employed by Verizon and they both obtained pensions through that employment. By Consent Short Form Order dated September 15, 2014 the parties stipulated that they would each distribute the marital portions of their respective pensions by QDRO. See Majauskas v. Majauskas, 61 N.Y.2d 481 (1984). Accordingly, the parties are hereby directed to effectuate those distributions by QDRO to be submitted to the Court contemporaneously with the Judgment of Divorce, or within 120 days thereof.
b. Veterans Disability Benefits
The Parties were married on June 21, 1980. Prior to the marriage Husband served in the United States Marine Corps from 1965 until 1969. As a result of injuries sustained during his military service Husband receives monthly veteran's disability benefits. The Court has previously deemed Husband's veteran's disability benefits to be his separate property for purposes of equitable distribution under the Uniformed Services Former Spouse's Protection Act (“USFSPA”). See Hoskins v. Skojec, 265 A.D.2d 706 (3d Dept.1999), lv. denied 94 N.Y.2d 758 (2000) ; See also Newman v. Newman, 248 A.D.2d 990 (4th Dept.1998). In addition to this ruling in his favor, Husband further argues that the benefits were obtained before the marriage and are thus could never be considered marital property, and that the benefits are akin to personal injury benefits, and therefore would equally not be subject to equitable distribution on that ground. See Arnone v. Arnone, 36 AD3d 1170 (3rd Dept.2007) ; See also, Rizzo v. Rizzo, 120 AD3d 1400 (2d Dept.2014).
b.1 Transmutation of Benefits
Wife argues that even if Husband's benefits are not subject to equitable distribution for the various reasons set for the above, she should still be entitled to a distribution of those benefits under a theory of transmutation. Wife claims that Husband transmuted the nature of these benefits, as a whole, from separate property to marital property through the action of depositing the funds into a joint account during the course of the marriage. Husband admits that during the course of the marriage his veteran's disability payments were deposited into a joint account, but differs on the conclusion of law made by Wife. It is uncontested that Wife was the spouse in charge of finances and the payment of bills throughout the marriage. (Tr. 9/16/14 pp. 196). In opposition to Wife's argument, Husband first argues that his veteran's disability payments are not an asset, akin to a pension, but are instead compensation for personal injury. Husband further argues that the benefits were acquired well before his marriage to Wife. Finally, he argues that while he may have transmuted certain individual payments into marital property, the nature of his disability benefits, as a whole, should not be transmuted.
Generally speaking, marital property subject to equitable distribution is limited to assets obtained during the course of the marriage. See Fields v. Fields, 15 NY3d 158 (2010) ; See also, Domestic Relations Law § 236. Separate property includes, amongst other things, property acquired before the marriage or property obtained by bequest, devise, descent or gift from a party other than the spouse. See Price v. Price, 69 N.Y.2d 8 (1986). However, Where separate property has been commingled with marital property, there is a presumption that the commingled funds constitute marital property. See Overton v. Overton, 118 AD3d 858 (2d Dept.2014). This presumption can be overcome by presenting sufficient evidence that the source of the funds at issue was separate property. See Scher v. Scher, 91 AD3d 842 (2d Dept.2012). Money intended as compensation for personal injury is the separate property of the receiving spouse. See Signorile v. Signorile, 102 AD3d 949 (2d Dept.2013). The determination of whether a particular asset is marital or separate property is a question of law. See DeJesus v. DeJusus, 90 N.Y.2d 643 (1997).
Wife's position regarding the transmutation of funds, while novel, is not supportable by existing law. While Wife string cites a number of cases which allegedly support her position, each of those cases relates to the distribution of a single asset or account, not an ongoing income stream, protected by federal law, that was acquired wholly before the marriage. Husband concedes that when he deposited his veteran's disability payments into a joint bank account to pay martial expenses he likely transmuted the funds then existing in that account into a marital asset. However, it does not follow that he should now be compelled to continue depositing his separate property into a joint account, in perpetuity, post divorce.
Here, the corpus of the “asset” identified as Husband's “veterans disability benefits” is maintained by the Veteran's Administration. See Rose v. Rose, 481 U.S. 619, 107 S.Ct. 2029 (1987). Husband receives monthly payouts from this corpus at the direction of the Administrator. Arguably, the commingling of the entire corpus of a separate property asset with marital funds would likely be sufficient to transmute separate property into marital property for the purposes of equitable distribution. However, “commingling only a portion of the income produced by the corpus does not transmute the corpus which has never been commingled.” Chernoff v. Chernoff, 31 AD3d 900 (3rd Dept.2006) ; See also, Armstrong v. Armstrong, 72 AD3d 1409 (3rd Dept.2010). The “fact that a portion of the Husband's [separate property] funds were deposited in a joint account does not support the further inference that the Husband intended to treat all subsequently received funds, which were placed in his individual bank accounts, as marital property”. Feldman v. Feldman, 194 A.D.2d 207 (2d Dept .1993).
While raised tangentially, Wife's argument that Husband should be estopped from ceasing to deposit his separate property into a joint account, or that Wife somehow added value to Husband's veteran's disability benefits by helping him fill out forms are without support in law or fact and are generally unpersuasive. Accordingly, Wife's application for the equitable distribution of Husband's veteran's disability benefits as a marital asset is hereby denied for the reasons set forth above.
c. Martial Home and Condominium
During the course of their marriage the parties purchased the former marital home located at 24 Peru Street in Staten Island and a condominium located in Fort Lauderdale Beach in Florida. By Stipulation dated September 15, 2014 the parties agreed to appraise and sell both properties subject to a “buy out” provision, and subject to claims for equitable credits proven at trial. Wife now claims that she is entitled to a number of equitable credits that should be applied to either her buy out cost, or her equitable share of proceeds from the sales. As the stipulation between the parties does not indicate an agreement regarding each parties equitable share of the proceeds the Court hereby determines that the parties shall split the proceeds equally, subject to the credits indicated below, after the payment of the mortgage (HELOC) associated with that home, and any fees attributable to the sale. See Grasso v. Grasso, 47 AD3d 762 (2d Dept.2008) ; See also, Cahn v. Squires, 35 AD3d 335 (2d Dept.2006). An equal distribution of the proceeds is warranted under the equities of this case, and based upon the concept that a marriage is an economic partnership where each party contributes to the whole. See Kleinschmidt v. Regan, 284 A.D.2d 284 (1st Dept.2001).
Both parties credibly testified that the Staten Island home is encumbered by a home equity line of credit in the approximate amount of $220,000 and that this indebtedness was entered into during the marriage. The Court hereby determines that this marital debt shall be distributed evenly between the parties. See Turco v. Turco, 117 AD3d 719 (2d Dept.2014) ; See also McCoy v. McCoy, 117 AD3d 806 (2d Dept.2014).
c.1 Origination Credit
Wife first argues that she should be entitled to a “separate property origination credit” for monies she contributed to the purchase of the Staten Island property. Wife seeks a credit for monies she contributed to the purchase price which originated from the sale of her per-marriage separate property, to wit, a home she owned in Brooklyn, New York. Wife credibly testified that this property, located at 166 Norfolk Street, was sold in 1983 for a gross sale price of $81,100. Wife further testified that she netted the sum of $55,000 from this sale of which she contributed $40,000 to the parties joint purchase of the former marital home located at 24 Peru Street, and $15,000 to improvements and repairs to the home. (Tr. 9/15/14 p. 35). Husband did not contradict Wife's testimony on the topic of an “origination credit”.
It is well-settled law that there is a statutory presumption that all property acquired during the course of a marriage, unless clearly separate, is deemed marital in nature. See DeJesus v. DeJesus, 90 N.Y.2d 643 (1997) ; See also, Overton v. Overton, 118, AD3d 858 (2d Dept.2014). However, when it can be shown that a spouse made a separate property contribution to the purchase of marital property, that spouse is entitled to credit for said contribution. See Fields v. Fields, 15 NY3d 158 (2010) ; See also, Patete v. Rodriguez, 109 AD3d 595 (2d Dept.2013).
Here, the Court credits Wife's testimony that she sold her separate property home and used the net proceeds to contribute to the purchase of the martial home and make initial improvements thereto. Husband has not sufficiently contested this fact. Accordingly, Wife is hereby granted a credit in the amount of $55,000 towards the proceeds of the sale from the former marital home located at 24 Peru Street or her “buy out” price of the same. See Beardslee v. Beardslee, 2015 N.Y.App. Div. LEXIS 268 (3rd Dept.2015); See also, Herzog v. Herzog, 18 AD3d 707 (2d Dept.2005).
d. Life Insurance
During the Course of the marriage both parties obtained life insurance policies with AIG with the other party named as beneficiary. At the time this action commenced Wife's insurance policy had an approximate cash surrender value of $18,871 with Husband's policy having a cash surrender value of $49,514.40. Wife now seeks a credit in the amount of $15,321 representing a one half share of the difference in value between the policies. Wife also seeks a ruling that both these policies be maintained, in perpetuity, with each spouse naming the other as irrevocable beneficiary.
The cash surrender value of a life insurance policy is marital property subject to equitable distribution. See Miller v. Miller, 150 A.D.2d 652 (2d Dept.1989). A trial court has broad discretion in selecting an appropriate date for measuring the value of a marital asset. See Cusumano v. Cusumano, 96 AD3d 988 (2d Dept.2012).
Here, the only documentation showing an exact cash surrender value of the parties' life insurance policies was offered by Wife in a Notice to Admit. (See Pl.Ex. 12). While Husband's updated Statement of Net Worth indicates a slightly different value, this value is estimated. (See Def. Ex. M.). Under the circumstances, the valuation date for the parties' life insurance policies shall be at or around the commencement of the action, as indicated in the documentation provided by Wife.
Wife's application that both parties be compelled to maintain the insurance policies, with the other party being named as irrevocable beneficiary, is hereby denied. The Court notes that there are no continuing financial obligations on either parties part, such as an award of maintenance or child support, that would require the security of an insurance policy. See DRL § 236(B)(8)(b) ; See also, Sutaria v. Sutaria, 123 AD3d 909 (2d Dept.2014). Accordingly, each party shall be entitled to change the beneficiary of their policy, if they so choose, or cancel the policy altogether. However, as the surrender value an insurance policy is a marital asset, and Husband's policy exceeds Wife's, Wife is hereby awarded a credit in the amount of $15,321 to be added as a credit to her share of the equitable distribution following the sale of the marital properties, or applied as a deduction from her “buy out” cost. This amount represents one half of the difference between the cash value of Husband's policy and Wife's policy.
e. Individual Retirement Accounts
Both parties maintain Individual Retirement Accounts (IRAs) that were rolled over from previously held 401k accounts. The parties' agree that at or around the commencement of this action their respective accounts were worth $417,066 (Husband) and $410,431 (Wife). While Wife testified that the accounts were now both worth over half a million dollars, no present day value was offered into evidence, accordingly the Court will use the commencement date valuation sought by Wife, who is the party seeking distribution of the asset. See Kilkenny v. Kilkenny, 54 AD3d 816 (2d Dept.2008).
There is no dispute that the IRAs are marital property as they were acquired during the marriage. See Pauk v. Pauk, 232 A.D.2d 386 (2d Dept.1996). As the value of Husband's account surpasses the value of Wife's account by the sum of $6,635 Wife is hereby awarded a credit in the amount of $3,318 representing a one half share of the difference in value. This credit may be added to her share of the equitable distribution following the sale of the marital properties, or applied as a deduction from her “buy out” cost. Wife's application that both parties be compelled to maintain the other as irrevocable beneficiary of their respective IRA accounts is hereby denied. (Tr. 9/15/14 p. 81).
f. Tax Refund Checks
By Stipulation dated March 1, 2013 the parties agreed that they would equally share any tax refund checks received in relation to their 2012 income tax return. (See Def. Ex. C). It is undisputed that the parties received approximately $11,503 in combined state and federal refunds in relation to that return. Husband alleges that Wife breached the terms of the parties' agreement and utilized the refund money for her own purposes. Husband further alleges that Wife did the same with their 2013 refund in the approximate amount of $6,759. Husband seeks a credit in the amount of $9,131 representing one half of the combined 2012 and 2013 income tax refunds.
Jointly filed income tax returns are subject to equitable distribution. See Aiello v. Aiello, 34 AD3d 708 (2d Dept.2006) ; See also, Lago v. Adrion, 93 AD3d 697 (2d Dept.2012). Moreover, the parties agreed to equally split the 2012 tax refund, or liability, by contract. During cross examination Wife admitted that despite her knowledge of the Stipulation she used the 2012 tax refund to “pay bills”. (Tr. 9/16/14 p. 157). On redirect Wife further admitted that she utilized the 2013 return to “pay expenses” (Tr. 9/16/14 p. 169). Wife's testimony that she had Husband's consent to utilize those funds, despite the written agreement, is not credible.
Husband argues that Wife's use of the tax refunds were unilateral decisions and seeks his equitable share of the funds. As the Court finds that Wife dissipated these marital assets, without permission to do so, Husband's application is granted. Husband is hereby awarded a credit in the amount of $9,131 to be added to his equitable share of the proceeds of the sale of the marital properties or deducted from his “buy out” cost.
g. Specific Personalty
Wife requests a distributive award, or credit, relating to her equitable share of the value of certain pieces of personality as listed in her written summation. In support of this claim Wife identifies a “2007 Chevrolet Avalanche Truck,” a”2007 Yamaha ATV”, a “Loadright” Trailer, and an “assortment of rifles, handguns, and golf clubs.” Wife admits that she cannot put a reasonable value on many of these assets. (Tr. 9/15/14 p. 84).
The party seeking an interest in a marital asset has the burden of establishing its existence and its value. See Antonian v. Antonian, 215 A.D.2d 421 (2d Dept.1995) ; See also, Post v. Post, 68 AD3d 741 (2d Dept.2009). Without a showing of value the Court is unable to make distributive award, or award a credit. See Gredel v. Gredel, 128 A.D.2d 834 (2d Dept.1987).
Here, the only asset with an established value is the parties 2007 Chevrolet Avalanche which Wife asserts is worth approximately $24,892. Wife admits that she cannot satisfy her burden of valuing the other identified assets which are listed in her summation as “value unknown”. As there is insufficient evidence in the record to specifically indicate the existence and value of the other assets claimed by Wife, the Court is unable to make a distributive award, or award Wife a credit in relation to those assets. See Sutaria v.. Sutaria, 123 AD3d 909 (2d Dept.2014) ; See also, Alper v. Alper, 77 AD3d 694 (2d Dept.2010).
In regard to the Chevrolet Avalanche, Wife argues that the vehicle was worth approximately $24,892 at the commencement of this action, a value that Husband contests. Wife testified that she calculated this value based upon her understanding of the “Kelly Blue Book” value that she researched on the internet. (Tr. 9/15/14 p. 83). The Court notes that documentation indicating the market value of the Avalanche was not offered into evidence. Accordingly, the Court finds Wife's subjective valuation of the marital Chevrolet Avalanche, based upon undocumented internet research, to be speculative at best.
Despite Wife's claims regarding value, Husband credibility testified that he traded in the Avalanche to reduce the lease amount of the vehicle he is currently driving, a Toyota Avalon. While the Court does not condone Husband's unauthorized transfer of a marital asset in violation of the Automatic Orders, the amount received by Husband in trade is a better indication of value than that offered by Wife. Husband credibly testified that in return for the Avalanche he received $5,000 in cash, together with a $11,250 reduction on his lease. (Tr. 9/16/14 p. 241 & 9/17/14 p. 287). Accordingly, in the absence of an objective valuation, or expert testimony, the Court finds that the sum of $16,000 is an appropriate value for the marital vehicle. Based upon this valuation, Wife is hereby awarded a credit in the amount of $8,125 representing her one half share of the realized value of the Chevrolet Avalanche. This credit shall be added to Wife's equitable share of the proceeds from the sale of the marital properties or deducted from the “buy out” cost associated therewith.
As for the Yamaha ATV and trailer titled in Husband's name, he has indicated a desire to sell the same at consignment. (Tr. 9/16/14 p. 207). Absent an agreement between the parties regarding the Yamaha ATV, Husband is hereby directed to have the ATV and associated trailer appraised and sold at their fair market value. The Cost of the appraisal shall be attributed 100% to Husband. Once appraised, Husband is hereby directed to serve a copy of the written appraisal on Wife. The ATV and trailer are to be listed for sale at the appraised value. Husband shall be entitled to make all decisions regarding the sale but he is hereby directed to accept any offer that comes within 20% of the appraised value. Upon receipt of the proceeds Husband is hereby directed to pay Wife a distributive award equaling one half of the sale price within 3 days. See Schwartz v. Schwartz, 67 AD3d 989 (2d Dept.2009) ; See also, Carney v. Carney, 202 A.D.2d 907 (3rd Dept.1994).
h. General Personalty
Wife seeks a distribution of personal property located within the parties' two parcels of real estate. Wife argues that since the Staten Island home is her primary residence she should be entitled to keep the furnishings and personal effects located there, and that Husband should be entitled to keep the furnishings and personal effects located in Florida, as the condominium located there is his primary residence. As Wife's suggested disposition of personalty is not opposed by Husband it is hereby granted. Husband shall be entitled to keep all of the items located in Florida free and clear from claims by Wife and Wife shall be entitled to keep all of the items located in New York free and clear from claims by Husband. In addition, Husband shall be entitled to keep as his personal property any firearms he currently owns as Wife did not provide an a value for those assets, or show an interest in possessing the same.
Little testimony was offered regarding the parties' bank accounts, and Wife's Statement of Proposed Disposition and Summation do not request a distribution of the same. Husband's Statement of Proposed Disposition requests that Wife be awarded the contents of the parties' joint bank account, which amounts to a waiver of that asset. (See Def. Proposed Disposition, p. 4[g] ). Accordingly, each party shall be entitled to keep the contents of bank accounts titled in their name. The contents of the parties' joint bank account is hereby awarded to Wife, free and clear from any claims by Husband.
Credits and Distributive Awards
Wife has requested that all of the distributive awards awarded herein be applied as credits to reduce her buy out price for the marital home located at Peru Avenue. As indicated above Wife is hereby authorized to apply the equitable distribution awards indicated herein as credits. However, in the event that Wife does not utilize her buy out option, the distributive awards are to be paid out of the proceeds of the sale of the marital properties. To the extent that any credits awarded to Wife herein are not fully satisfied by the proceeds from the real property sales, or attributed as deductions towards Wife's buy out price, Husband shall be required to pay any balance owed in equal monthly payments over the course of a year. The first payment of any such distributive award shall occur within 30 days of the signing of the Judgment of Divorce. To the extent that Husband is entitled to an equitable distribution credit herein, he is entitled to the same remedies available to Wife. To the extent that Husband wishes to utilize his buy out provision, he may do so and claim any credit awarded to him in a similar fashion.
Counsel Fees
During the pendency of this proceeding Wife filed a motion wherein she requested an interim award of counsel fees. By Decision and Order dated August 5, 2013 Husband was Ordered to pay an interim counsel fee award of $10,000. By motion dated October 15, 2013 Wife moved to hold Husband in contempt for failing to pay $6,000 of that counsel fee award. Said motion was referred to trial and shall be addressed herein. (Motion Seq. No. 005).
Wife now seeks a final award of counsel fees in the amount of $85,000 representing a reimbursement of fees previously paid by Wife, together with an award for fees currently due and owing. A post trial hearing was held on September 18, 2014 in relation to Wife's application for counsel fees. Prior to the hearing, the parties stipulated as to the reasonableness and necessity of the hourly rate charged by Wife's counsel and his standing in the legal community. (J.N. No. 3). At the hearing Husband called Mr. Bruce Behrins Esq. as a witness. No other witnesses were called. Mr. Behrins testified that Wife entered into a retainer which covered all aspects of the divorce including appellate legal fees, and that she was charged a “blended rate” of $400 an hour which covers legal work conducted by any lawyer in his office.
Pursuant to DRL § 237(a), a lawyer who represents a non-monied spouse may seek attorney's fees from the monied spouse in the divorce action. See O'Connor v. O'Connor, 89 AD3d 703, 704 (2nd Dept 2011). Effective October 12, 2010, DRL § 237(a)(5) creates a rebuttable presumption that attorney's fees shall be awarded to the less monied spouse.
An award of attorney's fees will generally be warranted where there is a significant disparity in the financial circumstances of the parties. See Chesner v. Chesner, 95 AD3d 1252, 1253 (2d Dept 2012). The purpose of DRL § 237(a) is to redress the economic disparity between the monied spouse and the non-monied spouse. See Frankel v. Frankel, 2 NY3d 601 (2004). Appellate legal fees are properly addressed at the trial level. See Aborn v. Aborn, 196 A.D.2d 561 (2d Dept.1993). The apportionment of an attorney's fee is controlled by the circumstances of each particular case and the trial court is in the best position to assess these factors. See Pitts. v. Pitts, 305 A.D.2d 389 (2d Dept.2003).
Here, Husband is the monied spouse as his total income is approximately $85,500 a year, a good portion of that sum being tax free. While Husband's veteran's disability benefits may not be considered for maintenance, or distributed as part of an equitable distribution award, there is no appellate authority to suggest that the Court cannot consider it for the simple purpose of determining which spouse is “monied” under the statute. The Court notes that an award of counsel fees to Wife would not necessarily require a distribution of Husband's veteran's disability benefits, as Husband has alternate assets from which he could pay the award. After consideration of the parties finances, the Court finds that Wife is the non-monied spouse as she earns considerably less than Husband with an annual income of approximately $32,000.
In opposition to Wife's application for counsel fees, Husband argues that Wife has access to sufficient assets to pay her attorney. Husband further argues that many of the entries in Wife's billing are duplicative, not sufficiently specific, or relate to appellate practice. Moreover, Wife argues that the positions taken by Wife during the pendency of this divorce proceeding have been “frivolous” or “bordering on frivolous” and have resulted in extended motion practice and unnecessary litigation which has needlessly increased Wife's counsel fee obligation.
As Husband is the monied spouse in this action, he has failed to rebut the presumption in favor of an award to Wife. See Khaira v. Khaira, 93 AD3d 194 (1st Dept.2012) ; See also, Marfone v. Marfone, 118 AD3d 1488 (4th Dept.2014). However, this does not end the analysis regarding the proper amount of that award. In addition to finances, the Court is directed to consider the totality of the circumstances including the relative merits of the parties positions. See Jones v. Jones, 92 AD3d 845 (2d Dept.2012). The Court may also consider “whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation”. Prichep v. Prichep, 52 AD3d 61 (2d Dept.2008). In addition, the Court is directed to consider the parties' respective ability to pay counsel fees after considering their incomes, assets and distributive awards. See Grumet v. Grumet, 37 AD3d 534 (2d Dept.2007). Finally, the Court should consider the complexity of the issues involved. See DiBlasi v. DiBlasi, 48 AD3d 403 (2d Dept.2008).
Upon review the Court does not agree with Husband's position the Wife's attorney's billing is insufficient to substantiate an award. However, the Court is persuaded by Husband's argument that this case was unnecessarily prolonged by extensive motion practice directly related to Wife's strategic decisions. This matter initially presented as a rather simple matrimonial action with no issues relating to children or domestic violence. At the preliminary conference the parties were able to resolve the issue of grounds on consent and enter into a discovery schedule for the financial issues. The matter only become complicated after the Court's decision regarding Husband's veteran's disability benefits. In response to this decision Wife first moved to reargue, then filed an appeal, and ultimately attempted to withdraw the entire action. When Wife's applications were denied, and Husband was permitted to assert a counterclaim for divorce, Wife then sought a jury trial on the no fault ground and a Verified Bill of Particulars relating thereto. While Wife's choice to contest grounds was not frivolous, as the right to a trial in relation to DRL § 170(7) is unsettled, her position was unsupportable as she had already sworn that the marriage had broken down irretrievably on at least three separate occasions. The circumstances relating to Wife's application to discontinue are more thoroughly addressed in this Court's Decision and Orders dated July 24, 2014 and January 31, 2013.
The Court notes that Wife's choice to discontinue her action had no meaningful effect on this case other than to cause delay. Despite her withdrawal, the divorce continued to trial, and Wife maintained her applications for ancillary relief. Wife admitted during trial that her decision to discontinue her action cost her at least $10,000 in legal fees. (Tr. 9/15/14 p. 102). Even if Court were persuaded that Wife was sincere in her belief that the marriage is repairable, that would only indicate that she “commenced an action for divorce upon grounds that she knew [or should have known] were without merit.” See Lima v. Lima, 68 AD3d 935 (2d Dept.2009). If Wife made an emotional “mistake” in filing for divorce, as she now claims, it does not follow that Husband should now be required to pay for that mistake.
Accordingly, under the totality of the circumstances presented, Wife is hereby granted a final award of counsel fees in the amount of $25,000 together with an Order directing Husband to pay the remaining sum of $6,000 in counsel fees previously Ordered for a total award of $31,000. See Stadok v. Stadok, 25 AD3d 547 (2d Dept.2006) ; See also, Suppa v. Suppa, 112 AD3d 1327 (4th Dept.2013) ; Evans v. Evans, 55 AD3d 1079 (3rd Dept.2008). This amount represents a sum of approximately one half of what Wife seeks, less sums unnecessarily expended on Wife's questionable legal strategies during the pendency of this case. See Susskind v. Susskind, 18 AD3d 536 (2d Dept.2005) See also, Chaudry v. Chaudry, 95 AD3d 1058 (2d Dept.2012) ; Aloi v. Simoni, 82 AD3d 683 (2d Dept.2011). The Court finds that under the circumstances this amount represents a fair contribution towards Wife's counsel fees after considering the totality of the circumstances. Without the extensive litigation caused by Wife's strategic choices the matter would have been much less complex and less costly to both parties. See Kalinich v. Kalinich, 234 A.D.2d 344 (2d Dept.1996). Finally, the Court notes that Wife is capable of contributing to her own counsel fees as she is in possession of considerable assets including an IRA worth over $500,000, and should receive considerable funds from the sale of the marital properties. See Celauro v. Celauro, 295 A.D.2d 388(2d Dept.2002) ; See also, Florio v. Florio, 25 AD3d 947 (3rd Dept.2006).
The counsel fees award herein may be paid out of Husband's share of the sums realized from the sale of the marital real property. In the event that the parties utilize their buy out provisions and retain the properties, Husband is hereby directed to pay the counsel fees awarded herein in three equal payments of $10,333 directly to Wife's counsel. The first such sum shall be paid within 60 days of the signing of the Judgment of Divorce with a second payment due within 60 days thereafter and a third payment 60 days thereafter. Accordingly, the counsel fee award should be paid, in its entirety, within 180 days.
Cross Contempt Motions
By Decision and Order dated January 31, 2013 the Court referred the parties' cross allegations of contempt to the trial. (See Mot. Seq. Nos. 004 & 005).
By Notice of Motion filed February 19, 2014 Defendant Husband moved to hold Wife in contempt for her failure to comply with the “automatic orders” contained in DRL § 236(B)(2)(b)(1–5) and 22 NYCRR § 202.16–a(c)(1–7). Specifically Husband argues that, in violation of these Orders, Wife failed to make lease payments relating to the marital vehicle, switched her IRA from one financial institution to another, and refused to share the parties tax refund check.
The issues raised in Husband's contempt application were only raised tangentially during the course of the trial. Moreover, there was no discussion in the record of alternative remedies available to Husband short of a finding of Contempt, or that such remedies would be ineffectual. See Wolfe v. Wolfe, 71 AD3d 878 (2d Dept.2010). In regard to the lease payments relating to the marital vehicle, Wife credibly testified that she offered to turn the vehicle over to him as she believed she could not afford it. Moreover the Court notes that the automatic orders relied upon by Husband do not indicate that Wife was somehow the party responsible for maintaining car payments. While Wife admitted at trial that she switched her IRA account from Morgan Stanley to Wells Fargo, and that transfer was arguably in violation of the strict interpretation of the automatic orders, Husband failed in his burden of showing that he suffered any prejudice as a result of the transfer. See Gomes v. Gomes, 106 AD3d 868 (2d Dept.2013). Finally, Wife's failure to share the parties' tax refund checks has been addressed by this Decision with a credit awarded to Husband. Accordingly, after the review of the papers filed in support and opposition to Husband's contempt application, Husband's application is hereby denied to the extent it is not resolved by this Decision after trial.
By Notice of Cross Motion filed February 19, 2014 Plaintiff Wife moved to Hold Husband in contempt for his failure to comply with this Court's Order dated August 5, 2013 which directed him to pay interim counsel fees in the amount of $10,000. Wife further moved to hold Husband in contempt for his failure to submit for a deposition, and his transfer of marital assets. Like Husband, Wife failed to testify at trial as to the availability of alternative remedies less harsh than a finding of contempt. A further review of the record reveals that Husband did ultimately appear for a deposition, the transcript of which was offered as evidence at trial. Finally, Husband's failure to pay counsel fees as previously Ordered, and the property that he transferred has been addressed herein. Accordingly, Wife's application to hold Husband in contempt is hereby denied to the extent it has not been resolved by this Decision after trial.
Conclusion
For the reasons set forth above, Defendant Husband is hereby granted a Judgment of Divorce as the parties' marriage has broken down irretrievably for a period of six months pursuant to DRL § 170(7). Husband has been granted summary judgment on this ground, and in an abundance of caution the Court permitted inquiry into grounds at trial. The Court credits Husband's testimony that the marriage is irretrievably broken. Husband's attorney is hereby directed to file a Judgment of Divorce and Findings of Fact, together with all supporting documentation, and a copy of this Decision, within 60 days.
Ancillary relief is granted as detailed herein. Wife's application for non durational spousal maintenance is hereby denied. The parties' pensions are to be distributed as agreed to between the parties by consent Short Form Order dated September 15, 2014. The marital properties, located in Florida and New York are to be sold as agreed to between the parties by consent Short Form Order dated September 15, 2014 subject to each parties right to purchase the other parties' interest. In the event that Wife utilizes the “buy out” provision afforded to her in the September 15th Order she is hereby entitled to an “origination credit” in the amount of $55,000 in relation to the New York property, together with equitable distribution credits in the combined amount of $26,764. In the event that Husband utilizes his buy out provision he is entitled to an equitable distribution credit in the amount of $9,131. In the event that either or both parties choose not to utilize their buy out options the credits are to be considered distributive awards as delineated herein. The proceeds of the sales, after application of deductions and credits, shall be split evenly between the parties. Wife's application for a final award of counsel fees is granted in the sum of $31,000 to be paid as set forth herein.
All other issues not specifically decided herein are hereby denied. Any applications made that were not addressed specifically herein are also denied.
This constitutes the Decision of the Court after trial.