Opinion
Index No. 17/9174
02-11-2020
J.T.P., Plaintiff, v. T.S.P., Defendant.
David Stern, Esq., Attorney for Plaintiff, Rochester, New York Steven Witkowicz, Esq., Attorney for Defendant, Rochester, New York
David Stern, Esq., Attorney for Plaintiff, Rochester, New York
Steven Witkowicz, Esq., Attorney for Defendant, Rochester, New York
Richard A. Dollinger, J.
In this bitter and longstanding divorce action, the Court reflects that a lack of candor under oath can easily doom a litigant's claims for property distribution and support.
The couple in this matter were married for 11 years. They have a son and, after a day of hearing on the "issue issues," — disputes over the parents’ access to the child — they agreed to a custody/visitation plan for their son, leaving the Court only with the financial issues related to support and equitable distribution. The Court heard testimony for several separate days and admitted dozens of exhibits. However, when all is said and done, a truth teller more often prevails. In this instance, the credibility of the husband assumes a paramount role in the Court's consideration of a host of financial issues. Simply put, the Court is unconvinced that the husband testified truthfully about a series of important matters — even his relationship with his spouse — and his credibility on a range of other issues — future employment, his hunt for job opportunities, his claims for financial support — casts a cloud over the Court's consideration of his claims.
Initially, the lack of candor impacts even his complaint before the Court. The husband is the plaintiff in the action. In his verified complaint, filed in September, 2017, he stated, under oath, that his marriage to the defendant had been irretrievably broken down for a period in excess of six months, an allegation which establishes the grounds for a divorce under Section 170 (7) of the Domestic Relations Law. However, during the trial, he testified that his wife has been unfaithful to him, an allegation that would have supplied the grounds for a divorce based on adultery. DRL 170 (6). The husband never made that allegation in his verified complaint. In addition, when specifically asked whether his marriage was "irretrievably broken down for a period in excess of six months" — the grounds for a divorce under Section 170 (7) of the Domestic Relations Law and the ground asserted in his verified complaint — the husband responded that it was not true. This retraction of his original complaint was never explained: he offered no justification for contending that his marriage was irretrievably broken down for six months during 2017, but was no longer "irretrievably broken" down at the time of trial in late 2019, even thought undisputed evidence indicates the couple had lived apart for years.
This inexplicable retraction is all the more perplexing because the husband fought hammer-and-tong throughout this divorce proceeding. He employed three attorneys at different times, vigorously opposed the wife's custody and visitation with the couple's son and strongly asserted separate property claims and ownership claims, which as the remaining course of this opinion indicated, were ultimately unsubstantiated. In sum, on the central issue of this divorce — the establishment of grounds — the husband, at the tail end of a divorce that he aggressively prosecuted, equivocated without justification.
After the husband's refusal to describe his marriage as "irretrievably broken down," the Court proceeded to ask the wife, who had interposed a counterclaim for a divorce based on Section 170(7), the same question and she responded, under oath that an "irretrievable breakdown" had occurred, justify a divorce based on the counterclaim in the answer.
1. The Husband's Claim to the Philippine Property
If that equivocation were the sole instance of the husband's lack of candor, the Court might decline to discredit his remaining explanations of controverted issues. Alas, it was not. The husband claimed, throughout the litigation, that he or his wife, at the commencement of the divorce, had jointly owned the property. In his statements of net worth submitted to the Court, he repeatedly listed the Philippine property as a marital asset, subject to equitable distribution. He repeated that claim during his direct testimony. During cross-examination, the husband was presented with receipts that were offered as evidence that his mother-in-law had paid him for the purchase of real property in Philippines in 2012. The documents proffered by the wife's counsel rebutted the husband's claims to ownership of the property. When confronted with one of the admitted receipts, the husband, asked to read it, said it "illegible" and too dark to read. The Court asked for the document and it was easily legible. It was, without dispute, "readable" and the husband never offered an explanation for why he would not read the document in the trial, other than it expressly rebutted his claim that he still owned an interest in the Philippine property and refuted his claims that he had never sold the property to his then mother-in-law. As a consequence, this Court declines to award the husband any portion of the Philippine property as at the date of commencement because he had no marital interest in the properly and the admitted proof establishes by a preponderance of the evidence that he had sold the property to his in-law long before the date of commencement.
2. The Husband's Claim for Maintenance
The crux of the husband's claims before this Court involve maintenance. In support of that claim, the husband highlights that he only garnered wages of less than $30,000 annually during the last few years. It is undisputed that his wife earns in excess of $75,000 annually and has for some time. The difference in income should, in most cases, justify an award of maintenance in an 11-year marriage. But, when the facts established at trial are untangle a picture emerges that clouds and finally defeats any maintenance claim.
First, the husband is in good health and aged 50. He has a master's degree and an extensive history with the Rochester City School District as a substitute teacher. The wife's counsel also submitted evidence, admitted at trial, that established that the median income for a certified Spanish teacher with the husband's skills and experience is between $74,340 and $82,240 in this region. See Johnston v. Johnston , 156 AD3d 1181 (3d dept 2017) (considering age, health and college degree as a factor in imputing income to a spouse); Arthur v. Arthur , 148 AD3d 1254 (3d Dept 2017) (considering employment history, advanced degree as factor in imputing income to a party). This evidence was unrebutted and establishes that the husband has substantial income potential annually. Yet, the proof at trial shows that he only worked on occasion during the last three years and there is no evidence that he ever applied to convert his substitute position into a full-time position. As a consequence of this lethargy, his social security earnings for 2017 and 2018 only slightly exceeded $26,000. Second, the husband had been certified Spanish teacher for a period of time, but in a consequence that was never fully explained at trial, he lost the certification. He testified that he intended to renew his teaching certificate and enroll as a regular substitute teacher in the Rochester City School District, a position that he had previously held. However, there was no evidence at the trial that he had ever renewed his certification or applied for a full-time positions in the City School District or any other nearby district during the two-year pendency of this action. In short, despite that fact that he has a very marketable skill — a specialty in Spanish — the husband here never diligently pursued a teaching position to harvest the benefit of those skills and, instead, worked at a capacity far less than his capability. Third, the husband admitted under oath that he had declined an offered position recently that would have paid $34,000 and he provided little explanation for why he turned it down, other than he intended to re-acquire his teaching certification, even though it had expired six years before and, prior to trial, he had not even initiated the process to obtain the certification. This rejection of full-time employment on the doorstep of trial strongly suggests that the husband was choosing to scale back employment rather than seek more income.
Subpoenaed documents from the City School District, admitted at trial, attest that the husband was "blocked" from teaching students at one school because he engaged in yelling and inappropriate language with students.
Fourth, the wife testified with credibility that she had been the victim of abuse by the husband. She testified that she had been slapped by him as far back as 2011. There is evidence of multiple orders of protection in this record, including an order of protection enforceable against the husband as recently as September, 2019. She testified that the husband called her "a whore, a deadbeat mother, a cheater and stupid" in the presence of their son. At the time of trial, there was a family court order of protection in effect until July, 2021. These repeated acts, manifest in orders of protection that were never contested by the husband, further militate against any award of maintenance. DRL § 236B (6) (e)(1) (g); L.M.L v. H.T.N. , 68 NYS 3d 379 (Sup. Ct. Monroe County 2017) (Dollinger, J.)
In further support of his claim for maintenance, the husband testified that he spends significant time with the child, which impinges on his ability to earn income. There is simply no evidence to support that claim. During past years, the husband has frequently served as a substitute and there is no evidence that his working during the school day has impacted his son or his relationship with his son. In addition, the Court notes that many teachers have younger children at home and teach full-time. This Court will not permit the husband's lack of effort to find and maintain employment to be disguised by a specious claim that he had child care responsibilities that preclude his working. Based on all these factors, this considers any award of maintenance to the husband as inconsistent with the guidelines in the Domestic Relations Law and, in an exercise of discretion, unjust and unfair.
3. The husband's claim for child support
The husband also alleged a claim for child support. However, it is undisputed that the agreement regarding the parental time with the child skews in favor of the wife/mother. She has the child for more time that the father. Therefore, the husband, as the non-residential parent, is not entitled to child support. The Court notes that the mother testified that she would waive child support going forward, for now, and this Court correspondingly declines to award her child support, but reserves her right to request child support at any appropriate time in the future.
4. Equitable Distribution — Distribution of the Marital Residence Proceeds
The major issue for equitable distribution involves the distribution of proceeds from the marital residence. The marital property was sold during the pendency of this matter and it is undisputed that the sale generated $26,916 in proceeds. The Court, in an earlier ruling, allowed each party to obtain $5,000 as an advance against equitable distribution and, as a result, there is $16,916 still held in escrow. The wife's proof established that she received a $4,000 gift from her mother, prior to purchase of the residence — a gift letter attests to the wife's claim. That amount — a gift from a non-party — is a separate property contribution credited to the wife. Therefore, there is only $12,916 remaining for distribution.
The wife also claims that she contributed $1,000 as a separate property contribution to the down payment. However, the parties were married when the property was acquired and while the wife advanced the funds from her separate bank account, nonetheless, the funds were marital at the time and the wife has failed to prove that these funds were a separate property contribution to the purchase. In addition, the wife claims that she used funds from her own bank account to reduce the mortgage balance by more than $10,000 during the term of the marriage. While these funds originated in the wife's bank account — an account she kept separate from her husband — the funds utilized to pay down the mortgage were earnings from the wife's employment during the marriage and must be considered marital funds. Therefore, this Court denies the wife any credit for the pay down of the marital residence mortgage.
Based on those facts as determined by the Court, there is $12,916 in martial funds still held as proceeds from the sale of the marital residence. That amount should be shared evenly and each party is entitled to $6,458 as equitable distribution from the proceeds of the sale of the house.
However, the amount awarded to the husband must be offset by sums he owes to the wife. The first unpaid obligation is for unpaid child support and his contribution to medical insurance. The proof before the Court established that the husband owed 22 weeks of child support at $75 per week and failed to pay $1,215 in his share of reimbursements for medical costs. These sums total $2865 and that amount must be subtracted from his share of the marital residence leaving him with $3,593 as his net from the proceeds of the sale. This Court takes judicial notice of a prior Rochester City Court decision that awarded the wife a judgment for $2350 against her husband. The judgment was never appealed and in the decision, the City Court judge references the Domestic Relations Law and equitable distribution, indicating that the wife was entitled to a $2350 credit from the husband. This Court, exercising its equitable powers, deducts that sum from the husband's award in this instance, reducing his share of the proceeds to $1,243. Finally, the Court also notes that the wife suggested that she would waive a $500 assessment that this Court imposed on the husband as a condition of a last-minute adjournment earlier in this matter. The Court declines to accept that waiver: the fee was imposed by this Court as a sanction and it should be further subtracted from the husband's share of the net proceeds. Thus, the sum payable from the sale of the residence to the husband is $743 and the remaining proceeds are awarded to the wife in full satisfaction for the debts and assessments listed in this opinion.
This Court previously granted a retaining lien to prior counsel for the husband and any distribution of proceeds to the husband should await presentation of that lien.
5. Distribution of Other Property
The Court declines to further divide any other personal property. The husband has a retirement account with the State of New York as a result of his work as a teacher in City School District. The Court finds that the wife's waver of any claim to the husband's pension is offset by the husband's waiver of any claim to the wife's retirement accounts. There is no evidence of any marital debt and the Court declines to distribute any such debt. Each party operates a motor vehicle and they may keep such vehicles free from any claim by the other. Any other personal property shall remain in the ownership of the titled owner.
6. Attorneys fees
The Court has also considered the issue of a further award of legal fees to the husband. This Court had previously awarded him $3,000 in fees. However, his lack of candor on the witness stand and his failure to secure reasonable employment to generate income for himself and his family, as well as his failure to pay child support and medical costs to his wife, militate strongly against a further award of fees. The husband, in this case, stubbornly refused to concede that he had sold his interest in the Philippine property, a tactic that delayed the trial and cost his wife significant sums to track down the proof to substantiate ownership of this foreign property. Having driven up the fees on all sides through his tactics and then failing to testify truthfully, he has forfeited any claim to any further fees.
7. Conclusion
This decision constitutes the Court's conclusion on all outstanding issues in this divorce action. The Court orders that a judgment of divorce be forwarded after review and approval by both counsel.