Opinion
50333/2007.
Decided April 7, 2011.
Thomas S. Kyle, Esq., Staten Island, NY, Plaintiff.
Patrice Genco Nichas, Esq., Mattawan, NJ, Defendant.
This case first appeared before this Court on January 14, 2009. After efforts by the parties to settle failed, this case was scheduled for trial on March 26, 2009, April 30, 2009, August 26, 2009, October 19, 2009, and December 7, 2009, September 16, 2010, September 22, 2010, September 30, 2010, and October 27, 2010.
Prior to January 2009, the parties appeared before the former presiding Justice assigned to this Part.
Procedural History
On April 18, 2007, Plaintiff (hereinafter "Husband") commenced this action for divorce against Defendant (hereinafter "Wife"). On April 18, 2007, Husband filed a Summons and Complaint. On September 20, 2007, Wife filed a Verified Answer and Counterclaim. Husband replied to Wife's Answer and Counterclaims. A Preliminary Conference was held on September 5, 2007. At the Preliminary Conference, the parties agreed to appraise the Marital Residence. On February 7, 2008, the parties agreed to appraise Husband's pension and Thrift Savings Plan with the United States Postal Service.
Wife's Answer constitutes her first demand for an award of lifetime maintenance.
The issues of fault, maintenance, equitable distribution, and counsel fees were all unresolved.
On September 20, 2007, Wife filed an Order to Show Cause for pendente lite relief. On January 30, 2008, the former presiding Justice (Silber, J.) issued a pendente lite Decision and Order (hereinafter "Pendente Lite Decision") as follows: (1) Wife was granted exclusive use and occupancy of the Marital Residence; (2) Wife was granted pendente lite maintenance in the amount of $850.00 per month; (3) Husband was Ordered to reimburse Wife for one half of the mortgage payments on the Marital Residence for the months of June 2007 through January 2008; (4) Wife was Ordered to make "all future house related payments"; (5) Wife was granted exclusive use of the 1999 GMC Jimmy and was ordered to pay all costs associated with the vehicle; (6) Wife's application for pendente litecounsel fees was denied; and (7) Husband was directed to maintain and continue in full force and effect all presently existing policies of medical and dental insurance on behalf of Wife.
By Order dated January 14, 2009, the parties agreed that Husband would take the divorce on the ground of constructive abandonment. On March 26, 2009, the parties proceeded to inquest and Husband was granted a divorce pursuant to Domestic Relations Law Section 170(2) constructive abandonment. Entry of the final Judgment was held in abeyance pending disposition of the financial issues. Throughout the pendency of this case, Wife has expressed an interest in buying Husband out of his interest in the Marital Residence. Wife was given several adjournments in order to refinance the Marital Residence in her name. At the time of trial, Wife was unable to secure a commitment to purchase Husband's interest in the Marital Residence.
A trial was held on the issues of equitable distribution, maintenance, and counsel fees. The trial commenced on March 26, 2009 and continued on April 30, 2009, August 26, 2009 October 19, 2009, and December 7, 2009. On December, 7, 2009, Wife did not appear in Court for cross examination. The Court granted Husband's application to proceed to inquest. On March 1, 2010, Wife filed a motion to vacate her default for failing to appear for trial on December 7, 2009. On March 22, 2010, Husband filed a cross motion opposing Wife's motion and seeking an award of counsel fees for fees incurred due to Wife's default. By written decision dated June 16, 2010, Wife's application to vacate her default was granted and Husband was awarded counsel fees in the amount of $3,500.00.
The trial continued on September 16, 2010, September 22, 2010, September 30, 2010 and October 27, 2010. Wife testified on her own behalf. Wife introduced several documents into evidence (Defendant's A-D). Wife called Doctor Maloney as an expert witness. Husband and Wife were represented by counsel. Both parties filed Statements of Proposed Disposition and updated Statements of Net Worth. Husband testified on his own behalf. Husband did not call any additional witnesses. Husband introduced several documents into evidence (Plaintiff's 1-5).
Factual Findings
The parties were married on Staten Island, New York on May 27, 1995. At the time of commencement, the parties were married eleven years. There are no children of the marriage. Husband is thirty seven years old and in good health. Husband has a high school diploma and attended one year of college. Husband has been employed for eighteen years by the United States Postal Service as a letter carrier. Husband's individual income tax return indicates he earned $48,178.00 in 2008. Husband has a pension with the United States Postal Service and retirement benefits with the United States Postal Service Thrift Savings Plan.
Husband's 2009 tax return was not introduced into evidence and was not annexed to his updated Statement of Net Worth.
Wife is 43 years old. Wife attended three years of high school. Wife was employed for only the first two years of the parties' marriage. Wife's brief period of employment included several legal secretary positions with law firms and/or local businesses. Wife was a legal secretary for Hall and Hall law firm, the law firm of Barney Giventer, the law firm of Vincent Gallo, and Edward Lauria, architect. The Court finds not credible Wife's testimony that she "quit" each and every one of these positions and that she was never terminated. Wife has not worked in over fifteen years.
Wife was unable to recall any of the dates of her employment.
Wife has attended training to become a Reikki Master spiritual healer and a belly dancer. Wife claims that, as a Reikki Master, she is able to channel God's light to facilitate healing. Wife traveled into Manhattan to the World Trade Center site to send healing energy to the people who perished on September 11. She has also spent significant time the past few years attending belly dancing classes.
The Marital Residence
In February 1996, the parties jointly purchased [REDACTED] Avenue, Staten Island, New York (hereinafter the "Marital Residence") for approximately $146,000.00. At the time of purchase, the parties had a $137,000.00 mortgage. The original mortgage was refinanced on two occasions. At the time of trial, the balance of the mortgage was approximately $170,000.00. The down payment for the Marital Residence came from wedding gifts. The parties resided together in The Marital Residence until Husband moved out in March 2007.
The Accident
On their second wedding anniversary, May 27, 1997, Husband and Wife were injured in a motor vehicle accident (hereinafter the "Accident"). While stopped at a traffic light the vehicle driven by Husband with Wife as a passenger, was rear ended twice by a truck. Husband and Wife filed a lawsuit against the driver for injuries sustained in the Accident. The case was tried before a jury in April and May of 2006. There was extensive medical testimony concerning Wife's injuries at that trial. The jury rendered a verdict in favor of Husband and Wife and awarded both parties damages for pain and suffering. Wife was awarded $69,183.77 and Husband was awarded $30,000.00. Jurors answered no to the question "has Wife, sustained a permanent consequential limitation of use of a body organ or member as a result of the accident of May 27, 1997?". (Plaintiff's 4B Question No. 3). Wife was awarded no damages for future pain and suffering and no damages for loss of enjoyment and life. (Plaintiff's 4B Question #6). Wife is appealing the jury verdict because she claims the jury failed to consider her future injuries.
Wife's Surgeries
Wife claims that she continues to suffer from chronic back pain from the Accident over thirteen years ago. Since 1998, Wife has been eligible to receive social security disability benefits. Wife is currently receiving $915.00 per month. Wife recently became eligible for Medicare benefits. On November 13, 2003, Wife underwent back surgery. Wife's lumbar spine was rebuilt from her ribs to her hips. Wife testified that she has two metal rods, eight screws and cemented vertebra. Three months later in January 2004, Wife underwent a second surgery to remove a bone stimulator growth. Wife testified that she attended physical therapy but could not recall when. Wife is under the care of Dr. Maloney for pain management. Wife is currently taking several types of prescription medication: Percocet, Somma (muscle relaxer), Elvail (for seizures and tremors), Xanax, and Ambien (for sleeplessness).
Husband believes Wife's surgeries were successful and she is capable of working in some capacity. According to Husband, Wife spends several hours per day sitting in front of a home computer participating in internet blogs. Husband further alleges that Wife boasts in her blogs that she commutes into Manhattan to belly dance several nights per week.
Wife's Inheritance
During the pendency of this action, Wife inherited money from her deceased brother's estate. Wife failed to disclose the inheritance in her updated Statement of Net Worth (Plaintiff's 7). At trial, Wife claimed that she received only $40,000.00 from an estate worth a total of $159,651.14. (Plaintiff's 6). Wife admitted there were only two surviving relatives herself and her brother P.M. The Court finds not credible Wife's testimony that she received only $40,000.00. The Court further finds not credible Wife's claim that she never received a statement indicating a breakdown of disbursement of the inheritance. Wife provided a copy of a consent to settle in her written opposition to Husband's motion for counsel fees. The consent to settle indicates that Wife's older brother P.M. as beneficiary of R.M.' (Wife's deceased brother's) estate settled two pending personal injury lawsuits on behalf of the estate as follows: (1) slip and fall lawsuit settled for $15,000 and (2) motor vehicle accident settled for $225,000.00. (Plaintiff's 6). The notice to settle further indicates that the balance of $159,651.14 would be distributed to Wife's brother's estate. Furthermore, Wife's written interrogatories indicated she would receive approximately $75,000.00. (Plaintiff's 5).
Temporary Maintenance Arrears
Wife credibly testified that Husband stopped paying pendente lite maintenance in January 2009. Wife admits she has received financial assistance from her brother to keep the mortgage current on the Marital Residence. Wife failed to disclose the sums she received from her brother on her Statement of Net Worth. Wife credibly testified that Husband failed to maintain dental insurance on her behalf as required by the Pendente Lite Order. At the time of trial Wife was taking penicillin on a daily basis because she cannot afford to pay for several root canals that will cost approximately $10,000.00.
With regard to the parties' lifestyle, Wife testified that she has not taken a vacation since before the parties were married. There was no testimony whatsoever about the frequency if any, the parties dined out or any other details as to their spending habits while married.
Wife's Physical Activity
Notwithstanding her claim that she is totally disabled, unable to work in any capacity, and rarely leaves home because she is in too much pain, Wife admits she started belly dancing in 2007. Wife's belly dancing was brought to this Court's attention in February 2009 when Husband attached a series of Wife's internet blogs as exhibits to motion papers. At trial, Wife incredibly testified that she stopped belly dancing in 2008, notwithstanding her own blogs which reveal otherwise. Wife further incredibly testified that she took belly dancing classes only once per week. Her claim in this regard is further disputed by her own blogs.
Wife positively identified the contents of her blogs at this trial. Wife indicated that she used the screen name [REDACTED] on websites tribe.net, facebook.com, and myspace.com. Wife further admitted that the contents of what she posted on the internet was true. The following are excerpts from Wife's blogs from 2006-2007 (three to four years after Wife's surgery):
Take a look at the latest photos in my album of me dancing. This was Soul Fire on May 11, 2007 at Chapel of Sacred Mirrors . . . an event I dance at monthly. (Plaintiff's 3B).
I belly danced the majority of the day away even though my legs are sore . . . Any who you all know what happens when I belly dance my day away I start to channel the other side and then I get to pass along what the angels are saying to this world of course with my own little dark personality added to it. (Plaintiff's 3D).
My belly dancing is the reason why I adore myself so much . . . that comes from hours of dancing and classes . . . When I start belly dancing as a career and when I dance my first performance on stage . . .
(Plaintiff's 3M).
I've been dancing alone, everyday for three years, I decided on my birthday that it was time to dedicate myself to my passion. Classes twice a week . . . On December 2nd I'm being given a chance to perform with a troupe, I'm not sure I'm ready for the stage yet. (Plaintiff's 3N).
I've come a long way . . . I had to learn to walk all over again, like a baby. Today I danced a choreographed dance across a studio floor, who woulda thought?. (Plaintiff's 3N).
Today I decided to dedicate myself more to my dance . . . even though I dance everyday, it's not enough . . . it won't be enough until I dance for you all, until you feel my euphoria". (Plaintiff's 3S).
It's been a three and a half year journey of realigning my spine (and hardware), body, mind and spirit with belly dancing for me. Today as I danced myself silly, I lifted my head and elongated my neck . . . as I swirled around . . . And then it happened, I got really, really high". (Plaintiff's 3D).
Wife also posted the following comments on her Facebook page in 2010:
"I'm experiencing my first fun gig . . . I'm going to be nervous as hell when its show time, but I know my sisters and I will ease each other through it. It's my first on stage solo :::knees knocking:::, then I'm joined by 6 priestesses." (Plaintiff's 8A).
I'm spinning!! I'm spinning!! I'm able to keep a slow steady spin without wanting to fall over or bang into a wall!! This is big for me girls!! All these years all I could do was about 3 spins get dizzy and the giggles. (Plaintiff's 8F).
The statements made by Wife on her blog pages are relevant to Wife's testimony respecting the effect the Accident has had on her life and her resulting demand for non-durational maintenance. Any statement or act by the defendant, which is contrary to the defendant's interest, may be received as an admission when offered by the plaintiff. See Reed v. McCord , 160 NY 330 (1899); See also Romano v. Steelcase Inc., 30 Misc 3d 426 (S. Ct. Suff. Cty.) (discovery of plaintiff's myspace and facebook accounts was material and relevant to plaintiff's claim that she could no longer participate in certain activities as a result of injuries sustained in an accident); Sgambelluri v. Recinos, 192 Misc 2d 777 (S. Ct., Nass. Cty.) (plaintiff's wedding video was relevant to claims that she could no longer engage in activities such as running or horseback riding, due to permanent injuries she suffered as a result of a motor vehicle accident).Here, these admissions posted by Wife contradict her claims that she is unable to work due to injuries sustained in the Accident, rarely leaves home, and socializes only once per month.
According to Wife, belly dancing strengthens and stretches her muscles. At trial, Wife claimed that she was prescribed belly dancing as "a form of physical therapy". However, her claim in that regard was controverted by her own expert witness. When Dr. Maloney was asked if he recommended belly dancing to Wife, he stated: "I don't know anything about it".
Wife admits that from April 2006 through January 2008 she used a home computer to blog about her belly dancing activities. The Court finds not credible Wife's claims that she stopped belly dancing a year and a half ago. On cross examination, Wife admitted that she belly danced as recently as May 20, 2010. In addition, Wife admittedly participated in a two hour belly dancing production in June 2010 in Manhattan but claims that she only had a speaking role. Wife denies that she participated in any of the dancing and claims she only did "ring around the rosy". Wife admitted at trial that she participated in several rehearsals before performing in the show. Wife also posted comments on Facebook about her performance. When asked why she didn't post online any pictures of herself dancing, Wife replied: "Gotta be careful what goes on line pookies. The ex would love to fry me with that." (Plaintiff's 8C).
Wife's Expert Witness
Dr. Maloney testified on behalf of Wife. Dr. Maloney has practiced in the field of chronic pain management since 1992. Dr. Maloney is board certified in Anesthesia and Anesthesiology. Dr. Maloney was qualified as an expert in the field of pain management over Husband's objection. Dr. Maloney started treating Wife on December 18, 2003. Dr. Maloney continues to treat Wife for chronic pain syndrome with prescription medication. Dr. Maloney treats Wife based upon her complaint that she continues to have severe lumbar spine pain. Dr. Maloney sees Wife every four to six weeks. The purpose of the appointments is to adjust her prescribed medication.
The Court affords no weight to Dr. Maloney's testimony that, to a reasonable degree of medical certainty, Wife is not physically capable of any employment. Despite a valid written request and signed HIPAA authorization (Plaintiff's Exhibit 12), Dr. Maloney failed to turn over a complete copy of Wife's medical record to Husband's attorney. Dr. Maloney was further unaware of the extent of Wife's use of a home computer and her participation in belly dancing classes and productions which require frequent trips into Manhattan by express bus. Furthermore, on cross examination, Dr. Maloney admitted that he cannot definitively say that Wife is not physically capable of employment. Even if the Court were to credit all of Dr. Maloney's testimony, which it does not, it still does not prove Wife is incapable of working in any capacity.
Plaintiff's Exhibit D (Notice of Cross Motion and Exhibits) reveals the following medical records from Wife's personal injury lawsuit. The following are excerpts from the medical records:
Dr. Miller, Orthopaedic Surgeon concluded on March 19, 1998, a little over a year after the Accident and prior to Wife's surgery, that: "The claimant is capable of working on a full-time basis and resuming her pre-accident activities of daily living, with no restrictions or limitations"; "she has reached her maximum medical improvement" . . . "There is no permanency to the claimant's injuries and the prognosis is good". (Plaintiff's Exhibit D).
Dr. Bannerman, Director of Neurology concluded on November 9, 1998, after the Accident and prior to Wife's surgery, that: "Based upon the normalcy of this exam, there are no neurological indications for continuation of disability". . ."There are no precluding factors, which would impede full time work ability, activities of daily living, employment duties or household chores". (Plaintiff's Exhibit D).
Decision
Outstanding Motions
(1) Husband's Motion to Strike Wife's Answer, Preclude, Compel and Modification of maintenance
On September 24, 2008, Husband filed a notice of motion seeking an Order: (1) striking Wife's answer; (2) precluding Wife from introducing evidence at trial regarding issues upon which she failed to comply with discovery orders of the court; (3) prohibiting Wife from supporting any claims that she may have relevant to the issues as aforementioned; (4) deeming issues pertinent to the lack of compliance with the discovery orders of the Court resolved regarding maintenance and sale of the Marital Residence; and/or compelling compliance with and cooperation with valid orders of the Court to immediately place the Marital Residence on the market for sale; (5) terminating temporary maintenance pursuant to review provisions contained in the Decision and Order; and (6) requiring Wife to comply with discovery orders of the Court compelling her to submit to a physical examination. Wife filed written opposition to Husband's motion. Husband filed a reply.
By Order dated February 26, 2009, Husband's motion was decided in part as follows: Husband's motion to preclude Wife from offering evidence at trial as to those items and information she failed to comply with discovery demands and/or court orders is granted, to wit: (1) Duane Reade records; (2) Walgreen records; (3) CVS records; (4) Devita and Becker; and (5) Victory Memorial Hospital. The Order further indicates that Husband has withdrawn his request for preclusion as to information Wife has to date failed to provide respecting monies inherited by her. The remaining issues in the motion were referred to the trial Court.
(A) Striking Wife's Answer
Husband's request for an Order striking Wife's answer is denied. Striking an answer is a drastic remedy warranted only when the resisting party's failure to disclose is "clearly" shown to be "deliberate and contumacious". Fucci v. Fucci , 166 AD2d 551 (2d Dept. 1990); Jenkins v. Proto Property Services LLC , 54 AD3d 726 (2d Dept. 2008). As Husband failed to show that Wife's failure to disclose was willful and contumacious, Husband's application to strike Wife's Answer is denied.
(B) Modification of Pendente Lite Maintenance
By Motion dated September 25, 2008, Husband sought an Order terminating his obligation to pay Wife temporary maintenance. Wife opposes Husband's application.
Pendente Lite awards "should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse with due regard for the pre-separation standard of living". Levakis v. Levakis , 7 AD3d 678 (2d Dept. 2004). "Modifications of pendente lite awards should rarely be made by an appellate court and then only under exigent circumstances". Fruchter v. Fruchter , 29 AD3d 942 (2d Dept. 2006). A speedy trial is ordinarily the remedy to any perceived inequity in a pendente lite award. McGarrity v. McGarrity , 49 AD3d 824 (2d Dept. 2008); Byer v. Byer , 199 AD2d 298 (2d Dept. 1993). However, "when the support payments directed by the court are so prohibitive as to strip the payor spouse of the income and the ability to meet his or her allowable expenses, then relief may be granted in the interest of justice". Fruchter v. Fruchter , 29 AD3d at 944.
By Order dated January 24, 2008, Husband was directed to pay $850 per month for spousal maintenance and $250 bi-weekly for any retroactive sums due. According to the Pendente Lite Order, the intention of the Order was to assist Wife in paying the mortgage on the Marital Residence until she could refinance and purchase Husband's interest. The Court finds Husband's testimony that he failed to pay temporary maintenance for only three payments October 2008, March 2009, and April 2009 not credible. The Court credits Wife's testimony that Husband stopped paying pendente lite maintenance in January 2009. Wife credibly testified that she did not receive temporary maintenance payments for January, February, March, April, May, June, July and August 2009. Wife further credibly testified that she never received $250.00 bi-weekly in pendente lite maintenance arrears. The Court notes that Husband failed to come forward with any proof to controvert Wife's testimony in this regard. Husband further failed to offer any proof sufficient to show that the payments were so prohibitive as to strip him of his ability to meet his own expenses. Husband admitted at trial that his income has not changed and that he just didn't pay.
Wife credibly testified that when Husband complied with the Court Order she was able to keep the mortgage on the Marital Residence current without resorting to borrowing funds. There is no dispute that the Marital Residence is a marital asset and the mortgage is a financial obligation of which both parties are responsible. Accordingly, Husband's application to retroactively terminate pendente lite maintenance is denied. McGarrity v. McGarrity , 49 AD3d 824 (2d Dept. 2008). Husband is hereby directed to reimburse Wife for all temporary maintenance payments he failed to pay including but not limited to January 2009 through August 2009 including any arrears due, from Husband's share of the proceeds of the sale of the Marital Residence.
(2) Husband's Application for Counsel Fees
By cross motion dated February 3, 2009, Husband seeks an award of counsel fees from Wife for legal fees incurred as a result of "Wife's delays in obtaining refinancing of the Marital Residence, failure to respond in a timely manner to discovery demands, and unnecessary litigation expenses due to obstructionist tactics" (Plaintiff's Notice of Motion dated February 4, 2009). Husband submitted a Supplemental Affirmation in Support of Motion for Attorneys fees. Husband seeks a total award of counsel fees in the amount of $14,040.83. Wife filed written opposition.
The parties waived a hearing on the issue of counsel fees and consented to submitting Husband's application and Wife's opposition for determination. Husband's request for counsel fees is granted. An award of counsel fees lies in the discretion of the trial Court, after careful consideration of the equities and circumstances of the particular case and respective financial positions of the parties. DeCabrera v. Cabrera-Rosete , 70 NY2d 879 (1987). The Court must also determine the reasonable value of counsel's services, taking into consideration counsel's skill and experience, the nature of the services rendered, the time actually spent, and the relative merits of the parties' positions. Willis v. Willis , 149 AD2d 584 (2d Dept. 1989); Silver v. Silver , 63 AD2d 1017 (2d Dept. 1978). Husband submitted the required documents including a statement of net worth, retainer agreement, and detailed billing records of his counsel establishing current fees due and owing. Domestic Relations Law § 237.
In determining whether to award counsel fees, the court should "review the financial circumstances of both parties together with all other circumstances of the case, which may include the relative merit of the parties' positions." DeCabrera v. DeCabrera , 70 NY2d 879 (1987); Ciampa v. Ciampa , 47 AD3d 745 (2d Dept. 2008). 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. See Timpone v. Timpone, 28 AD3d 646 (2d Dept. 2006). The following factors must be considered: (1) the nature and extent of the services rendered; (2) the actual time spent; (3) the necessity for the services; (4) the nature of the issues involved; (5) the professional standing of counsel, including background and experience; (6) the results achieved; (7) the financial circumstances of the parties; and (8) a party's obstructionist tactics. Anonymous v Anonymous , 213 AD2d 183 (1st Dept. 1995); Willis v Willis , 149 AD2d 584 (2d Dept. 1989).
The Court finds that Husband has proven that some of the legal fees incurred by him were necessitated by Wife's dilatory tactics in this litigation. The reputation and professional standing of Husband's counsel is well-known to this Court. Counsel's hourly billing rate ($290.00 per hour) is average in this legal community and reasonable in this circumstance. The Court finds that the services provided by counsel have been both reasonable and necessary, and largely due to Wife's dilatory acts. Husband is hereby awarded counsel fees for Wife's failure to appear in Court without lawful excuse on July 26, 2008, her failure to turn over discovery with regard to prescription drug records, her cancelling of appointments made by the real estate broker to show the Marital Residence to potential buyers, and Wife's refusal to surrender a key to the Marital Residence. This Court cannot ignore the fact that Husband's counsel fees were made unnecessarily higher due to Wife's actions. Pulido v. Pulido , 303 AD2d 737 (2d Dept. 2003). Accordingly, after considering the financial circumstances of the parties and the papers submitted by counsel on the subject of counsel fees, Husband's counsel is awarded a money judgement against Wife in the amount of $5,000.00 plus statutory interest.
II. Equitable Distribution
1. Factors Applicable to Equitable Distribution of the Marital Property
Domestic Relations Law § 236(B)(1)(c) defines marital property as "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held." Separate property includes "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse, compensation for personal injuries" and "property acquired in exchange for the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse" (DRL § 236[B][1][d]). The term "marital property" is to be construed broadly to give effect to the statute's concept of marriage as an economic partnership. Fields v. Fields , 65 AD3d 297 (1d Dept. 2009).
Once the marital property of the parties has been identified, but before determining the percentage of the marital property that each spouse is entitled to, the Court must consider a number of factors, including but not limited to the duration of the marriage and the age and health of the parties(Domestic Relations Law § 236[B][5][d][2]), the loss of inheritance or pension rights (Domestic Relations Law § 236[B][5][d][4]), whether an award of maintenance is given (Domestic Relations Law § 236[B][5][d][6]), any direct or indirect contribution made to the marital property by the party not having title including services as a spouse, parent, wage earner and contribution to the career or career potential of the other party (Domestic Relations Law § 236[B][5][d][7]), the probable future financial circumstances of each party (Domestic Relations Law § 236[B][5][d][9]) and whether or not there was a wasteful dissipation of assets by either spouse (Domestic Relations Law § 236[B][5][d][12]). After a considered balancing of these factors, the court must distribute the marital property equitably, but not necessarily equally, based upon the parties' respective contributions to the marriage (Domestic Relations Law § 236[B]).
Identification of Property
(A)The Marital Residence
The parties agree the Marital Residence was purchased with joint savings. See Domestic Relations Law § 236(B)(1)(c). Wife credibly testified that the purchase price was $141,000.00. Neither party submitted any proof of the current market value. At the time of trial there was a first mortgage in the approximate amount of $170,000.00.
Wife seeks a final order of exclusive use and occupancy notwithstanding her inability to obtain refinancing at any time during this lengthy litigation. There are no children. Husband requests that the Marital Residence be immediately placed on the market and sold. Husband would like to receive his equitable share according to the $325,000.00 appraised value indicated in Court Appointed Appraisal dated April 18, 2007 (Plaintiff's 1). Husband argues that Wife delayed the sale of the Marital Residence in her attempts to refinance the property. Husband testified that the real estate market crashed resulting in loss in the property's market value. Husband credibly testified that he took care of every day upkeep of the Marital Residence until he moved out in 2007. Husband credibly testified that he did all of the cleaning and cooking both prior to the Accident and after the Accident.
Husband's application for this Court to use the appraised value of the Marital Residence from the Court Appointed Appraisal is denied. Husband failed to prove the alleged deterioration of the Marital Residence other than his own vague testimony. Husband further failed to offer an updated appraisal of the Marital Residence to prove the alleged decrease in its market value since the Court Ordered Appraisal over three years ago in 2007.
The Court finds that it is necessary for the Marital Residence to be immediately sold as Wife is financially incapable of maintaining the residence on her income, there are no minor children of this marriage and the proceeds are needed immediately to satisfy the financial obligations imposed in this decision. See Marano v. Marano , 200 AD2d 718 (2d Dept. 1994); Cusimano v. Cusimano , 149 AD2d 397 (2d Dept. 1989). Accordingly, it is hereby Ordered that the Marital Residence be placed on the market for sale within one month of the date of this decision. Until the house is sold Wife is solely responsible for all carrying charges (mortgage, utilities, water, etc). Upon sale of the marital residence, the following shall be paid from the proceeds: any principal mortgage payments due and owing as of the date of closing, any outstanding utility charges, all costs and expenses of the closing, including but not limited to attorney's fees associated with the sale of the Marital Residence, transfer taxes, liens, "flip taxes", home equity line of credit, and title company charges. The remaining balance shall be deemed the net proceeds of the sale.
When both spouses equally contribute to a marriage of long duration, the division of marital property should be as equal as possible. Adjmi v. Adjmi , 8 AD3d 411 (2d Dept. 2004). However, there is no requirement that distribution of marital property be made on an equal basis. Griggs v. Griggs , 44 AD3d 710 (2d Dept. 2007). "After a careful balancing of these factors, the court is required to distribute the marital property, not necessarily equally or by reference to a predetermined formula, but equitably in view of the circumstances of the case and of the relative positions of the parties". Schanback v. Schanback , 130 AD2d 332 (2d Dept. 1982). Here, the Court credits Husband's testimony that Wife made little, if any, financial contributions towards the mortgage on the Marital Residence from 1996 through 2002. The Court further credits Husband's testimony that from 1997 until the parties separation in 2007, Husband did all of the cooking, cleaning, and laundry in addition to holding a full time job. Husband credibly testified that Wife worked only two years of this eleven year marriage. The Court credits Husband's testimony that Wife slept all day or otherwise spent her day on the computer participating in internet blogs. Accordingly, after considering the above mentioned factors, Husband is awarded sixty percent (60%) of the proceeds of the Marital Residence and Wife is awarded forty percent (40%). Kelly v. Kelly , 69 AD3d 577 (2d Dept. 2010).
Wife shall receive credit for any mortgage principal pay down that occurred during the pendency of this action until the time of sale. The parties shall be separately responsible to pay any tax obligation allocable to the separate share of the net profits, if any, that each receives from the sale. The net proceeds after satisfaction of the mortgage and any liens on the property shall be divided sixty percent (60%) Husband and (40%) forty percent Wife.
Husband is Ordered to provide a written list of proposed real estate brokers to Wife within seven days. The parties must mutually agree upon the real estate broker in writing within fourteen days. If the parties are unable to agree within fourteen days then Husband shall choose the real estate broker from the provided list. The listing price shall be set by the chosen broker based upon comparable sales. Wife is hereby Ordered to cooperate with the sale of the Marital Residence. Wife is hereby Ordered to make the Marital Residence available for showings by the chosen real estate broker to prospective buyers. In light of this Court's knowledge of Wife's failure to cooperate with a real estate broker previously chosen to show the Marital Residence, Wife is Ordered to provide a key to the listing real estate broker. The real estate broker shall provide twenty four hours notice to Wife of any showings. Wife shall have the right of first refusal to buy out Husband's share of the marital residence at fair market value.
(B) Husband's Retirement Benefits
Husband testified that he has a small pension with the United States Postal Service and additional benefits with the Thrift Savings Plan. Husband began working for the United States Postal Service in 1993. The parties were married on May 27, 1995. Husband's pension appraisal from Lexington Pension Consultants was not offered into evidence by either party at this trial.
There was no evidence presented of the date.
Wife is hereby awarded her Majauskas share of Husband's retirement benefits with the United States Postal Service including his Thrift Savings Plan and any other pension/retirement related benefits. See Majauskas v. Majauskas , 61 NY2d 481 (1984). Wife's marital share of Husband's retirement benefits shall be equal to fifty percent of the amount received multiplied by a fraction, the numerator of which shall be the number of months of the marriage of the Husband and Wife (143 months coverture period measured from May 27, 1995 the date of marriage to April 18, 2007 date of commencement of this action) during which the benefits accrued and the denominator of which shall be the number of months during which the member was a participant in the plan up until the date of commencement April 18, 2007. Any loans against the pension shall not effect Wife's marital share.
Husband and Wife are hereby Ordered to share the cost 50/50 of preparation of a Plan Administrator Approved Domestic Relations Order through Lexington Pension Consultants, 233 Richmond Avenue, Staten Island, New York 10314, or other equivalent Pension Appraiser/QDRO provider service mutually agreed upon by the parties in writing. Both parties are Ordered to execute all documents necessary for pension authorizations for the release of pension information only to effect the preparation and judicial signing of a QDRO.
III. Maintenance
The factors to be considered in awarding maintenance include the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting and the reduced or lost lifetime earning capacity of the party seeking maintenance (DRL § 236, B(6)(a.). In determining whether to award permanent or durational spousal maintenance, the Court will consider such factors as the length of the marriage, the age, health, education, and employment experience of the recipient spouse, and whether there are young children at home. De La Torre v. De La Torre , 183 AD2d 744 (2d Dept. 1992). The purpose of an award of maintenance is to encourage the recipient spouse to become economically independent and the duration of such an award should be the length of time the spouse will need to become self-supporting. Benzaken v. Benzaken , 21 AD3d 391 (2d Dept., 2005). In awarding maintenance, it is necessary to consider both the reasonable needs of the recipient as well as the pre-divorce standard of living. Hartog v Hartog ,85 NY2d 36 (1995); Grumet v. Grumet , 37 AD3d 534 (2d Dept. 2007). The party seeking maintenance has the burden of proof to show necessity or the inability to maintain herself. Wing v. Wing , 57 AD3d 535 (2d Dept. 2008).
The factors set forth in the statute are:
(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
(2)the duration of the marriage and the age and health of both parties;
(3)the need of the custodial parent to occupy or own the marital residence and to use or own its household effects;
(4)the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution
(5) loss of health insurance benefits upon dissolution of the marriage
(6)any award of maintenance;
(7) any equitable claim to, or interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career potential of the other party;
(8) the liquid or non-liquid character of all marital property;
(9)the probable future financial circumstances of each party
(10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such assets or interest intact and free from any claim or interference by the other party;
(11) the tax consequences to each party;
(12) the wasteful dissipation of assets by either spouse;
(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(14) any other factor which the court shall expressly find to be just and proper.
This is a long term marriage eleven years in duration. There are no children. Wife is forty three years old. Wife has experience as a legal secretary. Wife has not been employed in almost fifteen years. Wife's written summation indicates that she is seeking a final award of lifetime maintenance in the amount of $850.00 per month. In assessing a maintenance claim, the court must consider the factors enumerated in Domestic Relations Law § 236B(6)(a). The Court must also consider the payee spouse's reasonable needs and the standard of living of the parties established during the marriage. Zaretsky v. Zaretsky , 66 AD3d 885 (2d Dept. 2009).
Wife's Answer indicates she is seeking $2,000.00 per month.
There was very little testimony about the parties' standard of living during the marriage. However, from the limited testimony on this subject, the Court finds that the parties' lived a modest lifestyle essentially not taking vacations and saving very little. Wife filed an updated Statement of Net Worth on October 19, 2009. Wife's updated Statement of Net Worth fails to include a copy of her tax return. Wife is currently paying $1374.90 for the mortgage on the Marital Residence. Wife's utilities are $562.95 per month. Wife claims that she spends $400.00-$600.00 per month on food. Wife spends $62.99 per month on cable. Wife spends $45.00 per month on unreimbursed medical. Wife spends $300.00 per month on taxis. Wife spends $150.00 per month on theater, ballet, etc. Wife spends $100.00 per month on gifts. Wife has $237.00 in savings. Wife does not indicate any credit card debt on her Net Worth Statement. Wife claims total monthly expenses in the amount of $3,591.66.
Husband filed an updated Statement of Net Worth on October 16, 2009. Husband pays $900.00 per month for rent on his apartment. Husband's utilities cost $100.00 per month. Husband spends $338.00 for food and cable. Husband has $10,500.00 in savings from his personal injury award. Husband does not claim any credit card debt. Husband claims $2,471.00 in total monthly expenses. Husband earned $48,178.00 gross in 2008. Husband's net monthly income is $2500.27.
Husband's updated Net Worth Statement is incorrect with regard to Husband's gross income and statutory deductions. The numbers appear to be from Husband's original Net Worth Statement. Husband's Net Worth Statement fails to include any pay stubs. The Court used Husband's 2008 W-2 and tax return to determine his monthly net income.
Where lifetime maintenance has been awarded, the recipient spouse has often been older than Wife here, in impaired health, and the supporting spouse has been in a greater financial position than Husband. See, e.g. Loeb v. Loeb , 186 AD2d 174 (2d Dept. 1992); Reingold v. Reingold , 143 AD2d 126 (2d Dept. 1988); Iacobucci v. Iacobucci , 140 AD2d 412 (2d Dept. 1988). The Court finds that Wife failed to meet her burden of proof with regard to her claim for an award of lifetime maintenance. See Sarraga v. Sarraga , 262 AD2d 565 (2d Dept. 1999); J.S. v. J.S. , 19 Misc 3d 634, (Sup Ct Nass Cty) (wife has the burden of proving that she is permanently disabled from pursuing gainful employment). The Court notes that Wife failed to offer the Social Security Administration's findings into evidence at this trial. The Court notes however that, receipt of social security disability benefits does not, by itself, preclude the Court from finding Wife is capable of employment. See Aranov v. Aranov , 77 AD3d 740 (2d Dept. 2010). Wife's admissions in her blogs prove that she can spend significant time on a computer and is physically capable of traveling into Manhattan to belly dance on a frequent basis.
In analyzing Wife's award of durational maintenance, the Court has considered Husband's limited income ($48,178.00 gross per year) and modest reasonable expenses. The Court has further considered the award of forty percent of the proceeds from sale of the Marital Residence to Wife and the award of sixty percent of the proceeds to Husband. The real estate appraisal offered into evidence at this trial indicates a market value of $320,000.00. The testimony at this trial indicates a mortgage in the approximate amount of $170,000.00. The Court also awarded Wife a marital share of Husband's pension and retirement benefits. The Court has considered Wife's receipt of social security disability benefits in the amount of $915.00 per month. The Court has considered the temporary maintenance award that has been in effect over three years in the amount of $850.00 per month. The Court has considered Wife's personal injury award of $69,183.77. The Court has considered Wife's receipt of an inheritance from her deceased brother's estate which the Court finds was in excess of $40,000.00. There was no testimony about the effect, if any, of Wife's loss of entitlement to Husband's health benefits when the Judgment is finalized. However, Wife did testify that she is receiving medicare benefits. There was no evidence presented of the tax consequences to either party. See Taverna v. Taverna , 56 AD3d 461 (2d Dept. 2008). Neither party submitted any specific testimonial evidence as to Wife's employment history or compensation. On this subject, while Wife did testify to names of employers she was unable to remember the periods of time she was employed and how much she earned.
The Court notes that Wife did not offer any testimony or evidence with regard to the period of time necessary for her to obtain employment or training as it was her position that she is permanently disabled and not capable of employment. The Court finds that the testimony and documentary evidence at this trial proves that Wife's condition does not render it impossible for her to be self supporting under any circumstances. Accordingly, after considering the aforementioned factors, with considerable weight given to the temporary maintenance award in existence over three years, the Court hereby awards Wife durational maintenance for two years in the amount of $400.00 per month. See Palestra v. Palestra , 300 AD2d 288 (2d Dept. 2002). The award of maintenance will terminate upon the death of either party, the Wife's remarriage, or upon modification. Domestic Relations Law § 236[B][6][c]; Gold v. Gold , 276 AD2d 587 (2d Dept. 2000). This award will be taxable to the recipient and tax deductible to the payor. Lee v. Lee , 18 AD3d 508 (2d Dept. 2005). The first payment shall be made on or before May 1, 2011 and shall be made monthly thereafter on the first day of each month. This award is retroactive to the date of service of Wife's Answer. Caviolo v. Caviolo , 155 AD2d 410 (2d Dept. 1989). Retroactive arrears shall be paid from Husband's share of proceeds of the Marital Residence.
IV. Wife's Application for Counsel Fees
Wife's Verified Answer seeks a final award of counsel fees. Pursuant to the Pendente Lite Decision, Wife's application for pendente lite counsel fees was denied. Wife's written summation does not include the required documents necessary for this Court to determine her eligibility for a final award of counsel fees. As Wife failed to support her application with an updated sworn Statement of Net Worth, retainer agreement and detailed billing records, her application for counsel fees is denied. See Domestic Relations Law § 237 .
Miscellaneous Applications
(A). Re-allocation of the Real Estate Appraisal Order
Husband seeks reallocation of the real estate appraisal order. The Court took Judicial Notice of Order dated September 5, 2007 (Silber, J.) wherein Husband was Ordered to pay 100% of the cost of the real estate appraisal subject to reallocation. Husband testified that he paid $600.00 pursuant to the Order. Husband testified that he agreed to assume responsibility for the fees as Wife intended to buy out his interest in the Marital Residence. Husband argues that Wife should reimburse him for the cost of the appraisal since Wife never secured refinancing. Husband's application for reallocation is granted. Although Wife was unsuccessful in her attempt to buy out Husband's interest in the Marital Residence, the Court recognizes that Wife made several attempts to obtain refinancing. However, after considering the financial circumstances of both parties and after considering Wife was less than forthcoming with regard to her inheritance and her financial circumstances overall, the Court grants Husband's application for reallocation. Accordingly, the Order is reallocated as follows: Wife is responsible for 25% of the cost of the real estate appraisal and Husband is responsible for 75%. Accordingly, Wife is hereby Ordered to reimburse Husband in the amount of $150.00 from her share of the proceeds of the Marital Residence.
Conclusion
Accordingly, it is Ordered that: (1) Husband is granted a divorce on the ground of constructive abandonment; (2) Husband's counsel is awarded a money judgment against Wife in the amount of $5,000.00; (3) The Marital Residence shall be placed on the market for sale within one month of the date of this decision and Husband shall receive sixty percent (60%) of the proceeds of the Marital Residence and Wife shall receive forty percent (40%); (4) Wife is awarded her Majauskas share of Husband's retirement benefits with the United States Postal Service including his Thrift Savings Plan and any other pension/retirement related benefits; (5) Wife is awarded durational maintenance retroactive to the date of service of her Answer in the amount of $400.00 per month for two years, the first payment shall be made on or before May 1, 2011 and shall be monthly thereafter on the first of each month; (6) Wife's application for counsel fees is denied; and (7) Wife shall reimburse Husband for 25% of the cost of the real estate appraisal in the amount of $150.00 from her share of the proceeds of the Marital Residence.
Plaintiff shall submit the Findings of Fact and Conclusions of Law and Judgment of Divorce in conformity with this Decision and Order no later than sixty days from the date of this decision or the cause of action may be deemed abandoned.
All matters not decided herein are denied.
Based upon the forgoing, it is hereby
ORDERED that this constitutes the Decision and Order of the Court.