Opinion
No. XX/16.
05-23-2016
K.K., Plaintiff, v. P.K.M., Defendant.
Goldschmidt & Genovese, LLP, White Plains, for plaintiff. P.K.M., pro se.
Goldschmidt & Genovese, LLP, White Plains, for plaintiff.
P.K.M., pro se.
LINDA CHRISTOPHER, J.
This case first came into Court by way of an Order to Show Cause alleging the failure of the mother to return the parties' child from India. Sadly, by the time the father sought the Court's assistance, the mother was already fully ensconced in India. As unbelievable as it might seem, India from which so many of our residents hail—this country that is the source of many of our highly educated professionals—doctors, computer specialists, technological professionals of every sort—does not ascribe to the Hague Convention! Hence, the protections afforded to children and families whose countries adhere to the tenets of the Hague, are absent in this case.
Background
The parties to this action were married on ––– ––––, 2006 in India and are both Indian citizens. They have one (1) child, M. K., born in 2012 who is almost four (4) years old. Plaintiff is 38 and defendant is 33 years old. This action was commenced on May 13, 2015. In personam and subject matter jurisdiction was conferred upon this Court inasmuch as defendant was personally served with a Summons and Complaint for Divorce and her attorney, Reibling, Proto & Sachs, LLP by Keith M. Brown, acknowledged said service. An Order to Show Cause filed on May 21, 2015 was also served upon the defendant. Upon the initial filing of the Order to Show Cause, the Court heard plaintiff's emergency request and claims alleging that defendant absconded with the parties' child in February and failed to return from India. The Court directed the defendant to return to New York with the parties' child and to appear before the Court on June 2, 2015. The parties had been residing together in Westchester County, New York since September, 2011 and with their daughter, M.K. since her birth in 2012 in a home they purchased after moving from a rental in Connecticut.
Plaintiff is a Board Certified Radiologist and defendant is an information technology professional.
On June 2, 2015 the return date of the emergency Order To Show Cause, Keith Brown of Riebling, Proto & Sachs appeared on behalf of defendant and acknowledged service of the Order To Show Cause upon his client. The defendant failed to appear or return the parties' child as directed by the Order to Show Cause signed May 21, 2015. The matter was adjourned to give defendant another opportunity to appear with the subject child, with plaintiff to pay for the airfare if defendant claimed she was unable to afford to fly to New York.
The June 2 date, the adjourned date of the matter, defendant, once again, failed to appear. Her attorney attempted to file with the Court a document that purported to show that defendant commenced an action in India that preceded the action before this Court. The document failed to comply with the requirements of CPLR 4542(a) requiring that,
[a] foreign official record, or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof; or a copy thereof, attested by a person authorized to make the attestation, and accompanied by final certification as to the genuineness of the signature and official position
1. of the attesting person, or
2. of any foreign official whose certificate of genuineness of signature and official position
(i) relates to the attestation, or
(ii) is in a chain of certificates of genuineness of signature and official position relating to the attestation.
The Court found that the document was a photocopy which in and of itself is not inadmissible; however, the certification was lacking. Hence the Court did not consider it. A document attached to it was mostly illegible and was not an attestation in the form required pursuant to CPLR 4542. The document failed to include a certification as to the genuineness of the signatures and the official position of the attesting person.
Secondarily, the Court found that even if the documents had been acceptable as evidence of prior proceedings, plaintiff had never been made a party to the action, having never been served. Issue was never joined. For all of these reasons, this Court did not recognize the alleged actions by the Indian Court.
The Court proceeded with an inquest on the issue of custody and awarded plaintiff sole legal and physical custody of the child M.K. based on a preponderance of the evidence, after a hearing at which defendant's attorney had an opportunity to cross examine the plaintiff. The Court found the plaintiff credible and determined the following:
1) This Court had jurisdiction as set forth above.
2) The child was born in New York.
3) Both parties were citizens of India but were legally present in New York, having been issued green cards allowing them to work.
4) The defendant left with the child in February, 2015.
5) If India was a party to the Hague Convention, New York would have been considered the child's "home state" inasmuch as the child resided in New York since her birth in 2012 to February, 2015 and had not been out of the State of New York in excess of six (6) months at the time this proceeding was brought.
6) The defendant left New York on February 5, 2015 from Newark Liberty International Airport and was due to return on March 9, 2015.
7) Based upon plaintiff's testimony that this Court found to be credible, the Court determined, as more fully set forth in the Decision of June 12, 2015, that it would be in the child M. K.'s best interest to award plaintiff sole legal and physical custody.
This matter was set down for the ancillary issues.
On February 9, March 1, and March 11, 2016 plaintiff and her counsel appeared but defendant again failed to appear and the matter proceeded to inquest. Defendant acknowledged that she was aware of the proceedings and the Court's Order by writing an e-mail to the Court as follows:
Hi, I already informed the Court that I never subjected myself to U.S. jurisdiction for matrimonial case, as both me and my husband are Indian citizens and our wedding took place and registered only in India. And, moreover, I am in India and there is a divorce proceeding going on in India. I don't see any point in this order. [P.]
Trial transcript February 9, 2016, p 3. Based on the reasons set forth above, the Court proceeded with this matter, finding that this Court had jurisdiction over defendant for purposes of this divorce and ancillary issues.
The Court granted a divorce to plaintiff following his testimony regarding grounds, based upon DRL 170(7) pending the hearing and determination of the ancillary issues.
DECISION
The Court has reviewed, considered and evaluated plaintiff's Statement of Proposed Disposition, as well as the testimony and arguments of the plaintiff and the documentary evidence in making its decision. Additionally, the Court has relied upon its personal observation of plaintiff in determining issues of credibility. In reaching its conclusions, the Court has carefully observed and listened to the plaintiff during multiple days of the inquest and has evaluated all evidence in light of its relevance, materiality, credibility, importance, weight, and where applicable, permissible inferences have been considered.
Custody and Access
Plaintiff was awarded sole legal and physical custody of the child M.K. pursuant to an Order of June 23, 2015. Defendant shall be entitled to apply to a United States court of competent jurisdiction for supervised access.
Assets
The parties have the following assets:
Real Property
(i) Marital Residence in Westchester County, NY; and
Accounts/Assets titled in name of Defendant
(ii) Direct Energy U.S. 401(k) Plan in the name of defendant with a value of $23,659.68 as of February 4, 2016; and
(iii) TD Ameritrade IRA Account xxx-xx-xxxx in the name of defendant with a value of $50,529.26 as of January 31, 2016; and
(iv) Direct Energy U.S. share of stock in the name of defendant. Defendant indicates a value of $1,101 on her Statement of Net Worth dated July, 2015; and
(v) Bank of America checking account xxxxx in the name of defendant; and
(vi) $1,500 in cash located in the marital residence referred to by defendant in her Statement of Net Worth dated July 2015; and
(vii) Defendant's jewelry (gold and precious stones) removed from the marital residence by defendant when she absconded with the parties' daughter in or about February 2015; and
(viii) 80 grams of gold and 500 grams of silver listed by defendant on her Statement of Net Worth dated July 2015. Defendant removed these precious metals when she left the marital residence. As of February 8, 2016 a gram of gold is worth $38.55 and a gram of silver is worth .50. The value of 80 grams of gold is $3,084 and 500 grams of silver is $250.
Accounts/Assets titled in Joint Names
(ix) Astoria Bank checking account xxxxx in the joint names of the parties with a value of $90; and
(x) Astoria Bank savings account xxxxx in the joint names of the parties with a value of $26; and
(xi) Bank of America checking account xxxxx in the joint names of the parties with a value of $30; and
(xii) John Hopkins Federal Credit Union account xxxxx in the joint names of the parties with a value of $25; and
(xiii) Household furnishings located in the marital residence; and
Accounts/Assets titled in name of Plaintiff
(xiv) Wells Fargo savings account xxxxx in the name of plaintiff with a value of $419; and
(xv) 2007 Honda Civic automobile in the name of plaintiff; and
(xvi) 2009 Toyota Yaris automobile in the name of plaintiff; and
(xvii) John Hopkins 403B in the name of plaintiff with a value of $17,089 (as of December 31, 2015); and
(xviii) Montefiore Medical Center PVA/TDA Plan, account xx-xxxxx, in the name of plaintiff with a value of $25,563 (as of December 31, 2015); and
(xix) TD Ameritrade IRA account xxxxx in the name of plaintiff with a value of $8,945 (as of December 31, 2015).
Plaintiff's Assets claimed to be separate property:
(i) TD Ameritrade Roth IRA, account xxxxx, in the name of plaintiff with a value of $19,233 as of December 31, 2015; and
(ii) Wells Fargo account xxxxx in the name of plaintiff; except $410.68 as of May 13, 2015; used to deposit salary since commencement.
| Marital Debts or liabilities to specific assets: | |
|---|---|
| Debt or Liability | Asset |
| Astoria Bank | Marital Residence in Westchester County, |
| Mortgage in the approximate amount of $277,395 | NY |
Other Debts
Plaintiff has obtained loans from his family totaling $10,000 and incurred Visa Wells Fargo and Bank of America Mastercard combined debt of $20,382.
Equitable Distribution
The premise of the equitable distribution law is that "a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner or homemaker." O'Brien v. O'Brien, 66 N.Y.2d 576, 585 (1985). "The Equitable Distribution Law reflects an awareness that the economic success of the partnership depends not only upon the respective financial contributions of the partners, but also on a wide range of nonremunerated services to the joint enterprise, such as homemaking, raising children, and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home (citations omitted)." ' Price v. Price, 69 N.Y.2d 8, 14 (1986).
Although equitable distribution does not necessarily mean equal distribution, the general rule calls for an equal distribution of the marital assets, unless the equities of an individual case require an unequal distribution. See, Conner v. Conner, 97 A.D.2d 88, 96 (2nd Dept.1983). The basic premise of equitable distribution is that
modern marriage should be viewed as a partnership of co-equals. Upon the dissolution of a marriage there should be an equitable distribution of all family assets accumulated during the marriage and maintenance should rest on the economic basis of reasonable needs and the ability to pay. From this point of view, the contributions of each partner to the marriage should ordinarily be regarded as equal, and there should be an equal division of family assets, unless such a division would be inequitable under the circumstances of the particular case.'
Conner, 97 A.D.2d at 96, citing, 11C Zett–Kaufman–Kraut, N.Y.Civ . Prac., Appendix B, p. 8.
"The trial court is vested with broad discretion in making an equitable distribution of marital property,' and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed (citations omitted)." Michaelessi v. Michaelessi, 59 AD3d 688, 689 (2nd Dept.2009). Domestic Relations Law § 236B (5)(d), requires the Court to consider the following 14 factors in making an equitable distribution of the marital property:
(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
(2) the duration of the marriage and the age and health of both parties;
(3) the need of a 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) the loss of health insurance benefits upon dissolution of the marriage;
(6) any award of maintenance under subdivision six of this part;
(7) any equitable claim to, 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 or 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 asset 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.
Marital property is defined in Domestic Relations Law § 236 B(1)(c) as "all property acquired by either or both spouses during the marriage ..." Separate property is "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse ...". Domestic Relations Law § 236 B(1)(d)(1). Under the law of equitable distribution, there is a presumption that all property acquired by either spouse during the marriage is marital property. See, Domestic Relations Law § 236(B)(1)(c). Separate property also includes "property acquired in exchange for or 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." Domestic Relations Law § 236(B)(1)(d)(3).
Egregious Fault
Generally, marital fault is not a relevant consideration in the equitable distribution of marital property of divorcing spouses. However, a Court may consider fault in dividing assets when it is found to be egregious.
Most discussions of egregious conduct starts with a review of one of the earliest decisions from the Second Department of Blickstein v. Blickstein, 99 A.D.2d 287 (2nd Dept.1984) wherein the Court found that "[m]arital fault is not among the enumerated factors to be considered by the court, but neither is its consideration precluded by the terms of the statute, as it is with regard to child support (see Domestic Relations Law, § 236 part B, subd. 7 )."
Upon review of the various considerations, the Blickstein Court concluded that
as a general rule, the marital fault of a party is not a relevant consideration under the equitable distribution law in distributing marital property upon the dissolution of a marriage. This is not to deny, however, that there will be cases in which marital fault, by virtue of its extraordinary nature, becomes relevant and should be considered. But such occasions, we would stress, will be very rare and will require proof of marital fault substantially greater than that required to establish a bare prima facie case for matrimonial relief. They will involve situations in which the marital misconduct is so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship-misconduct that "shocks the conscience" of the court thereby compelling it to invoke its equitable power to do justice between the parties.
Id at 292. An example, cited by the Court was a case in which a spouse attempted a murder for hire of the other spouse. Id. Hence, the rule developed that the party's act must be such that it rises to the level of, "... an act so evil and outrageous that it must shock the conscience of everyone ... (citation omitted)." Id.
The decisions that emanated were careful attempts to keep the Courts out of the hornets nest of assigning marital fault as a basis to award an unequal division of marital assets.
The Court of Appeals reasoned that
marital fault is inconsistent with the underlying assumption that a marriage is in part an economic partnership and upon its dissolution the parties are entitled to a fair share of the marital estate, because fault will usually be difficult to assign and because introduction of the issue may involve the courts in time-consuming procedural maneuvers relating to collateral issues. (citations omitted).
O'Brien, 66 N.Y.2d at 590.
In 1993, Justice David Saxe (now sitting in the Appellate Division, First Department) wrote,
[W]ith respect to the concept of egregious behavior, marital fault may also be understood as a voluntary act in the context of the marriage that causes some social harm. The difference between ordinary marital fault and egregious marital fault, however, concerns the relative importance of the particular social value involved. The more highly the preservation of an interest is valued by society, the more likely it is that the offensive conduct in question will be deemed egregious.
A judge, therefore, in determining whether particular conduct amounts to egregious marital fault, must decide whether the social interest compromised by the offending spouse's conduct is so fundamental that the court is compelled to punish the offending spouse by affecting the equitable distribution of the marital assets.
McCann v. McCann, 156 Misc.2d 540, 546 (Sup.Ct., New York Cty ., 1993).
In 2010, the New York Court of Appeals weighed in on egregious conduct, finding that the wife's behavior in hiding the true parentage of the parties' child from the husband, did not rise to the level of egregious fault. Howard S. v. Lillian S. 14 NY3d 431 (2010). The Court emphasized that, in finding fault sufficient to impact equitable distribution,
[a]t a minimum, in order to have any significance at all, egregious conduct must consist of behavior that falls well outside the bounds of the basis for an ordinary divorce action. This is not to say that there can never be a situation where grounds for divorce and egregious conduct will overlap. However, it should be only a truly exceptional situation, due to outrageous or conscience-shocking conduct on the part of one spouse, that will require the court to consider whether to adjust the equitable distribution of the assets (see e.g. Levi v. Levi, 46 AD3d 520, 848 N.Y.S.2d 225 [2d Dept.2007] [attempted bribery of trial judge]; Havell v. Islam, 301 A.D.2d 339, 751 N.Y.S.2d 449 [1st Dept.2002] [vicious assault of spouse in presence of children] ). Absent these type of extreme circumstances, courts are not in the business of regulating how spouses treat one another.
Id. at 436.
In summary, in order for a Court to find egregious conduct, it must find the behavior complained of is so outrageous as to shock the conscience. The question before the Court is whether defendant's behavior in abducting the parties' child, refusing to return her to the parties' marital home and refusing to allow defendant to even visit with his child in a reasonable fashion rises to the level of egregious conduct. The Court finds in the affirmative.
In this matter, defendant has abducted the parties' daughter. Defendant has consistently refused to obey the orders of the Court that she return the child to New York to the custody of her father. Defendant has repeatedly restricted and/or denied plaintiff access to his daughter in India as well, and only recently permitted limited supervised visitation in India. Further, plaintiff testified that defendant has interfered with his ability to communicate with his daughter. Plaintiff has repeatedly attempted to call to speak to M. to no avail as his telephone calls to defendant are unanswered.
Plaintiff has submitted Affirmations from his Indian counsel which comply with the recent amendments to CPLR § 2106 and were submitted to this Court in lieu of Affidavits. These Affirmations were entered into evidence as Plaintiff's Exhibits "6" and "7". As the Affirmations of plaintiff's Indian counsel attest, defendant has continued to try to alienate the parties' daughter from her father by way of statements to the child, which the child repeated and attributed to defendant in the presence of third parties, that the child will die if she returns to the United States with plaintiff. Defendant is well aware that plaintiff will return with the child to the United States once he is able to enforce his order of custody. Defendant's actions are heinous and appear to be calculated to further alienate the child from her father by making her afraid of her father and his intention to return with the child to the United States.
Defendant has transgressed critical social norms and values, and blatantly ignored every ruling of this Court, refusing to participate and cooperate in the administration of justice. Not only are defendant's actions abhorrent to societal norms, causing plaintiff to suffer immeasurable injury and harm, they are disrespectful to this Court and the judiciary as a whole. Defendant's conduct constitutes egregious fault and will be considered by this Court in determining equitable distribution of marital property.
Guided by these principles of law, the statutory factors, and the equities of the parties' circumstances, the Court makes the following equitable distribution of the marital property based upon the following considerations:
Decision on Equitable Distribution
The plaintiff, at the time of the marriage, earned $44,791 in 2006 and defendant earned $822. At the date of commencement, plaintiff earned $65,000 bi-weekly and defendant earned $106,172.
At the time of the marriage, plaintiff had a TD Ameritrade Roth IRA, account No. xxxxx with a value of $19,233. Defendant had no known property at the date of marriage.
There is no necessity for the custodial parent to occupy the marital residence as the father has moved to an apartment near his job and the mother is in India.
Plaintiff emotionally and financially supported defendant when she obtained her Master's Degree during the parties' marriage in 2006. Defendant's premarital student loans in the amount of $14,220 were paid from marital funds.
Defendant appears to have transferred funds to her family in India of approximately $29,000. Additionally, defendant withdrew funds from the parties' Bank of America joint account totaling approximately $10,850 to an account in her name only between February and April 2015.
The parties paid $5,000 from marital assets for legal and other costs that were associated with defendant and plaintiff's Resident Alien Registration Cards ("Green Cards").
Defendant has wrongfully removed the parties' daughter to India. Defendant has continued in her employment while in India.
Plaintiff has incurred significant costs in seeking the return of his daughter from India. Although plaintiff has been granted sole custody, defendant has interfered with his custodial rights and limited his access to the parties' child. Plaintiff has incurred counsel fees in India and the United States. Additionally, plaintiff has incurred significant costs to travel and stay in India to seek to enforce his custodial rights.
Plaintiff has been a loving and caring parent and supportive spouse. Plaintiff engaged in house cleaning, laundry, food purchases and preparation of meals. He attended to the child's healthcare as needed and appropriate.
Defendant's wrongful removal and detention of the parties' unemancipated daughter, M. K., in India constitutes egregious fault. Defendant's malicious conduct has severed the relationship between plaintiff and his daughter, a young child. Defendant's conduct has interfered with plaintiff's parental rights and relationship with his daughter. The limited contact plaintiff has been able to obtain with M.K. since defendant absconded with her on or about February 5, 2015 has been obtained by him at substantial cost, expense and travel. To be able to spend limited and restricted time with M.K. and seek enforcement of this Court's order, plaintiff has traveled to India on several occasions. Despite plaintiff's travel to India to see M. K., defendant has severely restricted and limited plaintiff's contact. After defendant removed the parties' daughter from the marital home and left the United States, defendant deprived plaintiff and the child of contact and communication for prolonged periods of time. Notwithstanding several orders of this Court directing defendant to return M.K. to the United States, New York State, she has refused to do so.
On June 23, 2015 this Court awarded plaintiff sole legal and physical custody of M.K. and directed that defendant forthwith return M.K. to the State of New York into the custody of plaintiff. Thereafter, defendant was again directed to return M.K. to the United States. Defendant has failed to abide by the Orders of this Court. Her conduct has resulted in interference with plaintiff's relationship with his daughter.
In addition, defendant has initiated duplicate proceedings in India causing plaintiff to defend against such proceedings in a foreign venue as well as prosecute these proceedings. Defendant's conduct has caused plaintiff to incur additional cost and expense in duplicate proceedings in a foreign jurisdiction.
Marital Residence
Plaintiff is permitted to immediately place the marital residence on the market for sale. Defendant is directed to execute all documents necessary for the listing and sale of the marital residence. Upon her failure to do so, and upon 20 days notice to defendant of her refusal to cooperate in the listing and sale of the marital residence, plaintiff will be granted an Order giving the Westchester County Sheriff authority to execute any and all documents on behalf of defendant so as to effectuate the listing and sale of the residence located in Westchester County, New York, with any fees or costs for the Sheriff's conduct and participation to be charged to defendant without the necessity for an additional motion to the Court.
In accordance with this Court's Order of November 16, 2015, Defendant was directed to contribute 48% of the mortgage, taxes and homeowner's insurance in connection with the marital residence for a total cost of $2,619 per month. Defendant has made no contributions to the upkeep costs of the marital residence since she left in February, 2015. Since the Court's order of November 16, 2015, arrears of $4,399.92 through February, 2016 have accrued. Plaintiff is to be credited this sum against defendant's distributive award.
In addition, defendant is charged from her distributive share awarded to her (or otherwise be obligated to pay to plaintiff), one-half of the costs incurred to maintain the marital residence from February, 2016 until its sale.
The proceeds of the sale shall be divided 90% to plaintiff and 10% to defendant after deducting the mortgage, broker's commission, attorney's fee, and usual and customary closing costs. However, defendant's failure to return the parties' child to the plaintiff within 30 days of service with notice of entry of the final Judgment of Divorce, will result in a forfeiture of defendant's 10% of said asset to plaintiff.
Accounts/Assets titled in name of Defendant
Direct Energy U.S. 401(k) in the name of defendant with a value of $23,659.68 as of February 4, 2016. As a result of defendant's egregious conduct and her continued abandonment of property in the United States, plaintiff is awarded 90% of the marital share of the account by a tax free roll over by QDRO, DRO or other Court order. Defendant is awarded 10% based upon her egregious conduct, but only upon her return of the parties' child to the plaintiff's custody within 30 days of service with notice of entry of the final Judgment of Divorce. Her failure to comply will result in her forfeiture of the asset to plaintiff.
TD Ameritrade IRA Account xxx-xxxxx in the name of defendant with a value of $50,529.26 as of January 31, 2016 is likewise awarded 90% of the marital share to plaintiff and 10% to defendant based upon her egregious conduct. As a result of defendant's egregious conduct and her abandonment of property in the United States, plaintiff is awarded 90% of the marital share of the account by a tax free roll over by QDRO, DRO or other Court order. However, defendant's failure to return the parties' child to the plaintiff within 30 days of service with notice of entry of the final Judgment of Divorce, will result in a forfeiture of defendant's 10% of said asset to plaintiff.
Direct Energy U.S. share of stock in the name of defendant. Defendant indicates a value of $1,101 on her Statement of Net Worth dated July 2015. As a result of defendant's egregious conduct, plaintiff is awarded 90% of defendant's shares of stock and defendant 10% based on her egregious conduct. However, defendant's failure to return the parties' child to the plaintiff within 30 days of service with notice of entry of the final Judgment of Divorce, will result in a forfeiture of defendant's 10% of said asset to plaintiff.
Bank of America checking account xxxxx titled in the name of defendant. As a result of defendant's egregious conduct, plaintiff is awarded 90% of the value of this account and defendant is awarded 10% based upon her egregious conduct. However, defendant's failure to return the parties' child to the plaintiff within 30 days of service with notice of entry of the final Judgment of Divorce, will result in a forfeiture of defendant's 10% of said asset to plaintiff.
Defendant's jewelry (gold and precious stones) removed from the marital residence by defendant is awarded to her as there was insufficient proof of same.
Accounts/Assets titled in the name of Plaintiff
Plaintiff is awarded sole ownership of his TD Ameritrade Roth IRA account xxxxx established by him prior to the parties' marriage.
Defendant is awarded 0% of the marital portion of plaintiff's retirement accounts, which accounts include John Hopkins 403(b), Montefiore Medical Center PVA/TKA Plans x-xxxxx and TD Ameritrade IRA account xxxxx due to defendant's egregious conduct and abandonment of property in the United States.
Defendant is awarded 0% of the Wells Fargo checking account xxxxx in the name of Plaintiff with a value of $10,000, as this account primarily consists of plaintiff's post commencement earnings.
All other accounts in plaintiff's name are awarded to him.
2007 Honda Civic and 2009 Toyota Yaris automobiles are titled in the name of plaintiff.No proof of value was submitted and defendant abandoned the assets. Plaintiff is awarded sole ownership of these automobiles.
Plaintiff is to be awarded sole ownership of the contents of the marital residence. As defendant voluntarily left the United States and abandoned the contests of such home, defendant has voluntarily forfeited any and all interest in such property.
Accounts/Assets titled in Joint Names
Plaintiff is awarded 100% of the following accounts with relatively minimal balances that are titled in joint names: 1) Astoria Bank checking account xxxxx with a value of $90; 2) Astoria Bank savings account xxxxx with a value of $26; 3) Bank of America checking account xxxxx with a value of $30; and 4) John Hopkins Federal Credit Union account xxxxx with a value of $25.
Maintenance
Plaintiff did not request maintenance.
Child Support
This Court, pursuant to Domestic Relations Law § 240(1–b), has considered the calculations delineated in Domestic Relations Law § 240(1–b)(c) as well as the factors set forth in Domestic Relations Law § 240(1–b)(f) which permit a deviation from the calculations set forth in Domestic Relations Law § 240(1–b)(c). If the combined parental income exceeds the statutory cap of $143,000, the Court must decide the amount of child support for the amount of the combined income in excess of the cap through consideration of the factors set forth in paragraph (f) of DRL § 240(1–b) and/or the child support percentage, and the Court must articulate a rationale for its determination. Casano v. Cassano, 85 N.Y.2d 649 (1995).
The paragraph (f) factors include:
1) The financial resources of the custodial and non-custodial parent, and those of the child; (2) The physical and emotional health of the child and his/her special needs and aptitudes; (3) The standard of living the child would have enjoyed had the marriage or household not been dissolved;
(4) The tax consequences to the parties; (5) The non-monetary contributions that the parents will make toward the care and well-being of the child;
(6) The educational needs of either parent;
(7) A determination that the gross income of one parent is substantially less than the other parent's gross income; (8) The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action; (9) Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent's expenses are substantially reduced as a result thereof; and (10) Any other factors the court determines are relevant.
After computing statutory income, a limited number of deductions are allowable under Domestic Relations Law § 240(1–b). The CSSA provides for eight categories of deductions from income, which includes Federal Insurance Contributions Act (FICA) taxes paid. Domestic Relations Law § 240(1–b)(b)(5)(vii)(A)–(H).
The Court next multiplies the combined parental income figure, up to a ceiling of $143,000 by a designated percentage based upon the number of children to be supported, and then allocates that amount between the parents, applying each parent's respective portion of the total income to reach the amount of each parents support obligation. Domestic Relations Law § 240(1–b)(b)(3); (c)(2).
The designated percentage is 17% since the parties have one child.
In the final step, where combined parental income exceeds $143,000, the court is to determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of Domestic Relations Law § 240(1–b) and/or the child support percentage. Domestic Relations Law
§ 240(1–b)(c)(3).
The computation of combined parental income
| Plaintiff/Father | Based on his NWS & paycheck stubs | Defendant/Mother | Based on her 2015 paycheck stubs |
| $169,000 | Base Income | $106,172 | Base Income |
| -$9,797 | F.I.C.A. | -$8,122 | F.I.C.A. |
| $159,203 | CSSA Income | $98,050 | CSSA Income |
Calculation of proportionate shares:
| $98,050 | Mother | 8% |
| $159,203 | Father | 62% |
| $257,253 | Combined parental income for child support purposes | 100% |
Pro rata share of child support obligation upon income up to $143,000 cap
$143,000 X 17% = $24,310
| Father's pro rata share: | $24,310 | X | 62% | = | $15,072 |
|---|---|---|---|---|---|
| Mother's pro rata share | $24,310 | X | 38% | = | $ 9,238 |
| Total | = | $24,310 |
There was no finding of support required above the statutory cap.
Child Support Award Pursuant to DRL § 240(1–b)(a)
The Court finds that defendant's parental obligation for child support is $9,238 per year or $769 per month. The plaintiff is awarded and the defendant is directed to pay the sum of $769 per month as and for child support directly to the plaintiff. Plaintiff is entitled to receive payments through the Support Collection Unit if he prefers. Child support payments are to be paid on the first day of each month, and shall commence on June 1, 2016. Child support is for the care of the child. Plaintiff has maintained a home and obtained a two (2) bedroom apartment to accommodate the child. Retroactive child support is awarded from June 23, 2015, the date the Court awarded custody to plaintiff, to June 1, 2016 in the amount of $8636.
Additionally, the plaintiff shall maintain in effect any currently existing health care insurance for the benefit of the child and the defendant shall be responsible for her pro rata share (38%) for the cost of insurance attributable to the child. Defendant shall also be responsible for 38% of future unreimbursed health care expenses for which medical insurance is available, but payment is excluded by the insurer as a co-payment or deductible. The parties shall use in network providers unless agreed upon in writing or in the event of an emergency.
The defendant shall also be responsible for payment of 38% of the cost of reasonable child care expenses, which is the child care utilized by plaintiff to enable him to work. Defendant shall also be responsible to pay her pro rata share for reasonable camp expenses required for plaintiff to be employed.
Counsel Fees and Sanctions
Plaintiff's request for an award of counsel fees pursuant to DRL § 237(b) was deferred to trial.
In the Safah case, the Court awarded defendant wife 100% of her counsel fees finding that the "heinous and egregious action of the plaintiff absolutely necessitates the defendant's being awarded 100% of her counsel fees expended in this matter." Safah v. Safah, NYLJ, January 8, 1992.
In Matter of Rosenhaus, 105 A.D.2d 750 (2nd Dept.1984) in a habeas corpus proceeding the Court denied a mother's request for counsel fees as a result of the mother's violation of the visitation provisions of the parties' separation agreement. In Coburn v. Coburn, 109 A.D.2d 984 (3rd Dept.1985) the Court awarded counsel fees as a result of a party's wrongful conduct. In Coburn, the petitioner in a custody proceeding failed to bring to the Court's attention the residence history of the children, the existence of a concurrent custody proceeding in another state and the fact that the respondent was in the military.
Based on defendant's refusal to comply with the various orders of this Court, an award of counsel fees pursuant to 237(b) is just and proper. It would be manifestly unfair to burden plaintiff with tens of thousands of dollars in counsel fees and travel expenses incurred as a direct result of defendant's refusal to comply with orders of this Court. Plaintiff has been forced to incur counsel fees both in New York and India, travel expenses for attempted visitation and court appearances in India, and extraordinary, unnecessary fees in this action occasioned by defendant's refusal to return the parties' daughter to New York, resulting in additional court appearances and motion practice. Further, defendant has failed to pay the $12,500 in counsel fees awarded plaintiff in this Court's November 16, 2015 Decision and Order.
In Gerstein v. Gerstein, 302 A.D.2d 447 (2nd Dept.2006) the Appellate Division awarded counsel fees to the former wife and granted her travel expenses incurred by virtue of the former husband's refusal to comply with the parties' stipulation and turn over the parties' child for scheduled visitation after the mother traveled from California to New York.
In addition to citing Gerstein, in awarding counsel fees to the husband for the wife's failure to abide by prior orders, the Court in Rodman v. Friedman, 33 AD3d 400 (1st Dept.2006) also imposed self-executing fines against the wife should she continue to violate the Court's orders with respect to visitation and therapy.
In Curatola v. Curatola, 43 AD3d 974 (2nd Dept.2007), the Court awarded the wife counsel fees and further exercised its discretion by deducting the wife's counsel fees directly from the husband's share of the equity in the marital residence based on his obstructionist tactics which unnecessarily prolonged the litigation.
The Appellate Division, First Department in Papasoff v. Cockrell, 12 AD3d 259 (1st Dept.2004), modified a lower award pursuant to DRL § 237(b) and held that Petitioner was entitled to 100% of reasonable counsel fees incurred to undo the "unilateral, illegal conduct" of the respondent in relocating to Colorado despite a court order denying her permission to do so, including fees incurred to seek an award of fees.
Pursuant to 22 NYCRR 130–1.1, upon application by a party or on the Court's own initiative, the Court may consider imposing sanctions, including costs for actual expenses and counsel fees upon a finding that a party has engaged in frivolous conduct. For purposes of 22 NYCRR 130–1.1(c), conduct is frivolous if:
(1) it is completely without merit in law and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law;
(2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or
(3) it asserts material factual statements that are false.
Defendant's conduct in refusing to return the parties' daughter as directed by this Court can only be interpreted as undertaken to maliciously injure plaintiff herein. Defendant's contention that this Court does not have jurisdiction is also frivolous. Defendant appeared in this action by counsel on the return date of the Order to Show Cause. Her counsel acknowledged personal service on defendant of the Summons with Notice, Verified Complaint and Order Show Cause seeking the return of the child to New York. Defendant's counsel appeared multiple times before this Court, including at the custody hearing and the Preliminary Conference. Each time counsel acknowledged that he had provided his client with copies of this Court's order, including the Order awarding plaintiff sole custody of the parties' daughter. Defendant submitted sworn Affidavits and a sworn Statement of Net Worth to the Court through counsel and appeared via telephone in connection with Mr. Brown's application to be relieved as counsel. Defendant's claim that the Court is without jurisdiction of this matrimonial proceeding is patently frivolous. Defendant was a resident of the State of New York until she absconded to India in February 2015. The parties' daughter was born in New York, and resided with the parties in New York until defendant wrongfully abducted the child to India.
Decision on Counsel Fees and Sanctions
Defendant's actions have caused what otherwise should have been a relatively simple matrimonial action to evolve and develop into an international abduction matter which has necessitated significant motion practice (three (3) motions have been made within an approximate six (6) month period), a hearing regarding custody and an inquest. The inquest commenced on February 9, 2016, continued on March 1, 2016 and on March 18, 2016. Defendant has engaged in deliberate and contemptuous conduct which has served to cause plaintiff to incur significant counsel fees. A significant portion of plaintiff's counsel fees would not have been necessary but for defendant's noncompliance with court orders and lack of cooperation in this matter. In addition to multiple court appearances to afford defendant an opportunity to appear, conferences were held at which she did not appear limiting the efficacy thereof; subpoenas had to be issued to obtain records generally otherwise produced as part of the discovery process; steps to enforce court orders were necessitated; and even affecting service was unusually costly and difficult.
Defendant's conduct has caused plaintiff to incur counsel fees in two jurisdictions. Plaintiff has incurred counsel fees in an attempt to obtain custody of M. K., the return of M.K. to the United States and the defense of defendant's proceedings in India. Plaintiff has incurred counsel fees in the amount of approximately $6,833 (exact amount depends on currency fluctuations) with counsel in India.
This Court in its order of November 16, 2015 awarded Plaintiff counsel fees in the amount of $12,500. Defendant has not paid plaintiff the counsel fees which were awarded to him.
Plaintiff retained the firm of Goldschmidt & Genovese, LLP ("G & G") on or about April 17, 2015. This Court has reviewed plaintiff's Retainer Agreement and Statement of Client's Rights as well as invoices for the period of April 17, 2015 (retention of Goldschmidt & Genovese, LLP) through February 29, 2016 reflecting the specific services performed by each attorney on a particular date, the attorney's hourly rate, charges in connection with each service and additional costs and fees (such as process service, mandatory court fees, witnesses fees, international express mail, and photocopies) incurred by plaintiff in connection with this matter.
In accordance with his Retainer Agreement, plaintiff has agreed to pay the following hourly rates for counsel fees:
| Sylvia Goldschmidt | $495 |
| Donna M. Genovese | $475 |
| Theresa A. Girolamo | $375 |
| Counsel | $350 |
| Senior Associate Attorney | $375 |
| Associate Attorney | $300 |
| Paralegal | $120 |
Plaintiff incurred counsel fees in the amount of $84,000. He is requesting an award of $71,500 in addition to the $12,500 awarded on November 16, 2015, none of which has been paid by defendant.
Based on the foregoing, including defendant's egregious conduct, plaintiff is awarded counsel fees of $75,000 (inclusive of the $12,500 previously awarded), to be paid by defendant to plaintiff's counsel within 30 days of service with notice of entry of the final Judgment of Divorce. This award is based on the fact that defendant caused plaintiff to incur most of these substantial expenses due to her actions. However, in any event plaintiff would have incurred some counsel fees to prosecute this divorce.
With regard to plaintiff's request for sanctions pursuant to 22 NYCRR 130–1.1, although the Court found defendant's conduct to be frivolous, in its discretion, the Court declines to impose sanctions in this matter. Defendant has been directed to pay the majority of the counsel fees incurred by plaintiff in this matter. While part of the purpose of imposing sanctions is to reform conduct, the Court does not find that purpose will be served in this case.
CONCLUSION
The Court has considered the additional contentions of the parties not specifically addressed herein and finds them to be without merit. Those matters, other than those stipulated to, not specifically addressed are denied in the Court's discretion.
Both parties are on notice pursuant to Domestic Relations Law § 255"... that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan."
Plaintiff's counsel is directed to settle proposed Findings of Fact and Judgment of Divorce, in accordance with this Decision, and including the usual and customary language not specifically contained herein, within 30 days of the date of this Decision.
The forgoing constitutes the Decision of this Court.