Opinion
Index No. 55362/2022
09-27-2023
LS, Plaintiff, v. GS, Defendant.
Counsel for the Plaintiff, LS: John Zachary Marangos JOHN Z MARANGOS ESQ Counsel for Defendant, GS: Nicholas Alfred Pedersen Angiuli & Gentile, LLP
Unpublished Opinion
Counsel for the Plaintiff, LS: John Zachary Marangos JOHN Z MARANGOS ESQ
Counsel for Defendant, GS: Nicholas Alfred Pedersen Angiuli & Gentile, LLP
Ronald Castorina, Jr., J.
Procedural History
Plaintiff LS and Defendant GS were married on June 15, 1991, in Staten Island in a religious ceremony. (NY St Cts Filing [NYSCEF] Doc No. 244 at page 75, lines 3-8). There are four children emancipated children of the marriage, to wit: RLP, born January XX, 1993, NS, born February XX, 1998, JS, born February XX, 1998, and KS, born February XX, 1998. (NY St Cts Filing [NYSCEF] Doc Nos. 55). The Plaintiff Wife commenced this action for divorce against Defendant Husband by Summons with Notice and Automatic Orders on July 18, 2022. (NY St Cts Filing [NYSCEF] Doc Nos. 1).
A preliminary conference was held on October 27, 2022 and an order was issued on consent that Plaintiff would be granted a divorce pursuant to Domestic Relation Law § 170 [7] Irretrievable Breakdown, after the resolution of the ancillary issues. (NY St Cts Filing [NYSCEF] Doc Nos. 55). Plaintiff filed a Verified Complaint on or about July 27, 2022. (NY St Cts Filing [NYSCEF] Doc Nos. 2). Defendant filed an Answer with Counterclaims on or about August 16, 2022. (NY St Cts Filing [NYSCEF] Doc Nos. 5).
On August 24, 2022, Plaintiff filed Motion Sequence No. 001 by Order to Show Cause, Defendant filed opposition on September 16, 2022, and Plaintiff replied on September 20, 2022. (NY St Cts Filing [NYSCEF] Doc Nos. 52). On October 4, 2022, the Court Ordered that commencing October 1, 2022, Defendant was to pay to Plaintiff as and for temporary maintenance the sum of $5,000.00 per month pendente lite retroactive to the date of commencement July 18, 2022, and the temporary maintenance payment was to be made by Defendant directly to Plaintiff on the first of the month. (see id). The Court further Ordered in addition to the monthly maintenance amount due October 1, 2022 of $5,000.00 the Defendant was Ordered to pay the retroactive award for the months of August 2022 and September 2022 on October 1, 2022 of $10,000.00 on that date. (see id)
On March 1, 2023, a virtual compliance conference was held, and the matter was scheduled for an in-person pretrial conference on April 20, 2023. (NY St Cts Filing [NYSCEF] Doc Nos. 106). On April 20, 2023, an in-person pretrial conference was held, and the matter was adjourned for an in-person status conference on May 10, 2023. (NY St Cts Filing [NYSCEF] Doc Nos. 158). An in-person status conference was held on May 10, 2023, and the matter was scheduled for inquest or a further pretrial conference on June 12, 2023. On June 12, 2023, a pretrial conference was held, and trail dates were scheduled for an in-person trail on July 31, 2023, August 1, 2023, August 7, 2023, August 8, 2023, and August 16, 2023. (NY St Cts Filing [NYSCEF] Doc Nos. 175).
On June 2, 2023, Plaintiff file Motion Sequence No. 005 by Notice of Motion (NY St Cts Filing [NYSCEF] Docs Nos. 166-171) and Defendant filed opposition on June 9, 2023 (NY St Cts Filing [NYSCEF] Doc No. 174). On June 20, 2023, Motion Sequence No. 005 was resolved and the Court Ordered that the Defendant pay Plaintiff's counsel fees pendente lite, subject to reallocation at trial in the sum of $35,000.00 [THIRTY-FIVE THOUSAND DOLLARS AND NO CENTS] to be paid within two weeks by bank check directly to Plaintiff's counsel and the Court further Ordered Defendant to pay trial retainer counsel fees, pendente lite, subject to reallocation at trial and without prejudice to renew for additional sums as may be required, in the sum of $30,000.00 [THIRTY THOUSAND DOLLARS AND NO CENTS] to be paid in full no less than three weeks prior to trial commencement by bank check directly to Plaintiff's counsel. (NY St Cts Filing [NYSCEF] Doc No. 176).
Plaintiff filed Motion Sequence No.006, a Motion In Limine, on July 3, 2023, seeking preclusion pursuant to CPLR § 3126 of the Defendant from offering any evidence or testimony from any medical professional in support of any of his medical claims and from offering any evidence or testimony from CC concerning the value of his business. (NY St Cts Filing [NYSCEF] Doc Nos. 178-186). On July 11, 2023, Plaintiff filed Motion Sequence #007, an Order to Show Cause seeking contempt against the Defendant pursuant to Judiciary Law § 750, § 750 [A] [1] and § 750 [A] [5] and § 756 for his failure to comply with the lawful mandates of the Court of October 4, 2022 and June 20, 2023, and further seeking an Order suspending Defendant's Law Enforcement Officers Safety Act HR218 certification. (NY St Cts Filing [NYSCEF] Doc Nos. 187-197).
On July 12, 2023, Defendant filed an Order to Show, Motion Sequence #008, seeking Defendant's counsel to be relieved and a stay of 45 days for the Defendant to obtain new counsel. (NY St Cts Filing [NYSCEF] Doc Nos. 198-203). Plaintiff filed a cross motion, Motion Sequence #009, opposing Defendants motion to relieve counsel and seeking sanctions. (NY St Cts Filing [NYSCEF] Doc Nos. 207-215).
On July 20, 2023, the Court set a motion schedule for Motion Sequences #006, #007, and #009 and oral argument was scheduled for July 21, 2023. (NY St Cts Filing [NYSCEF] Doc No. 218). Motion Sequence #008 was denied by the Court on July 20, 2023. Defendant filed opposition on Motion Sequence #007 and oral argument was completed on July 21, 2023. (NY St Cts Filing [NYSCEF] Doc Nos. 219-227).
The Court granted the Plaintiff's motion finding the Defendant in civil contempt in that as set forth on the record, the Defendant willfully failed to obey the Court's Orders dated October 4, 2022, and June 20, 2023, directing the Defendant to pay Maintenance to the Plaintiff on the sum of $5,000.00 monthly, and to pay counsel fees to the Plaintiff's attorney in the sum of $65,000.00, respectively. (NY St Cts Filing [NYSCEF] Doc No. 228). The Court provided the Defendant with an opportunity to purge said contempt by coming into full compliance with the Court's Orders, on or before July 31, 2023, the date of the commencement of trial. (see id). The Court further Ordered that due to the Defendant's misconduct, disobedience, neglect, and refusal to comply with the Orders of the Court, Defendant was directed to appear before the Court on July 31, 2023 to provide proof of having purged, or to stand before the Court for sentencing. (see id).
Although provided with an opportunity to do so, Defendant failed to provide sufficient medical documentation to excuse his in-person appearance and was Ordered to return to Richmond County by means other than flight, if necessary, including but not limited to rail, car, bus, and/or ambulette, and the Court would not be delayed any further in its ability to bring this matter to trial. (see id). The Court further granted the Plaintiff's motion for preclusion. (see id).
Trial commenced on July 31, 2023, and Defendant failed to appear before the Court. (tr at page 4, lines 4-19). The Court found the Defendant to be in default in this action and was sentenced for contempt in absentia. (tr at 7, lines 7-10). Plaintiff proceeded with her prime facie case. This is a Decision and Order after inquest of the Plaintiff.
Facts
The issues outstanding for the Court to decide are as follows: (a) equitable distribution; (b) maintenance; (c) life insurance; (d) Defendant's pension; and (e) counsel fees.
Plaintiff testified that the parties were married on June 15, 1991 and that there are four emancipated children of the marriage, RP, age 30, JS, age 25, NS, age 25, and KS, age 25. (tr at 12, lines 15-25). Commencement date of the action is July 18, 2022 (NY St Cts Filing [NYSCEF] Doc No. 1). Plaintiff shall take the divorce on the grounds of irretrievable breakdown of the marriage (NY St Cts Filing [NYSCEF] Doc No. 55).
Plaintiff testified that she will be working part-time for Moore Catholic High School, having been reduced from full-time due to her significant hearing loss. (tr at 13, lines 2-7). Plaintiff's salary as secretary will be $31,000.00 in September 2023. (tr at 36-37). Plaintiff currently lives at XX XXX Boulevard, Staten Island, New York. (tr at 14-15). The property, which was acquired in 1991, is owned by the Plaintiff and the Defendant and there is no mortgage on the property. (tr at 15, lines 2-8). This property was Ordered appraised by the Court and has a value of $968,500.00. (tr at 15, lines 19-22).
Plaintiff further testified that the Defendant currently resides in a condominium located at XX XXX Lane, Jensen Beach, Florida. (tr at 16, lines 10-14). Plaintiff believes this property was purchased by the Defendant in January 2020. (tr at 16, lines 15-18). This property is owned by the Plaintiff and Defendant, has no mortgage, and was purchased for $175,000.00. (tr at 16, lines 19-24). This property was Ordered appraised by the Court and has a value of $294,000.00. (tr at 15-16).
Plaintiff testified that during the marriage the Defendant provided $5,000.00 per month for food for the family for as long as she could remember. (tr at 17-18). Plaintiff further testified that Defendant historically provided $1,000.00 per month for Plaintiff's clothing. (tr at 18, lines 11). Plaintiff contends that historically, she and the Defendant "went out a lot, traveled a lot, and he would always want me dressed and wearing-it was that important to him what people thought of our image" (tr at 18, lines 15-17).
Plaintiff testified that her total monthly health insurance costs are $1,157.86 and once the divorce is final, she will have to pay $1,092.86 per month to keep the same health insurance that she currently has. (tr at 18-19). Plaintiff contends that historically the Defendant provided $1,750.00 per month for household maintenance and $500.00 per month for household help. (tr at 20, lines 7-20).
Plaintiff contends that Defendant traded-in a Mercedes van purchased with marital funds and used $2,000.00 in marital funds to purchase a 2022 Cadillac for $45,000.00. (tr at 21-22). Plaintiff testified that she is required to make total monthly automotive payments in the amount of $1,830.99. Plaintiff seeks an exchange of vehicles in which Plaintiff received title to the 2022 Cadillac that is paid off and Defendant takes the 2022 Cadillac CT4 leased in his name. (tr at 22).
Plaintiff testified that historically, the Defendant took the family on large annual vacations that included, Turks and Caicos, The Atlantis, Barbados, Dominican Republic, as well as shorter trips to Atlantic City, Washington, Virginia, Florida, Disney World, Disneyland, and places like that. (tr at 23, lines 15-23). Plaintiff further testified,
Q. And by what method did he pay?
A. Cash and credit cards mostly.
Q. Where did he get the cash?
A. Plumbing business.
Q. I didn't hear the answer.
A. Plumbing business.
Court. Ms. S, when you say "the plumbing business," are you speaking about a plumbing business that he owned and operated, meaning GS?
A. Yes.
Court. Go ahead.
Q. Let's talk about the plumbing business for a moment. What year did your husband retire from the police department?
A. 2002.
Q. Since then was he receiving and checks from the police department?
A. The Hartford, yes, he received a pension; disability, pension.
Q. How much was he getting?
A. $5,848.00
Q. Is he still receiving that money?
A. Yes, he is.
Q. What other checks does he receive?
A. Social Security, disability.
Q. And how much is that?
A. $2,650.00
Q. When did he start receiving these checks?
A. I believe 2002, and it was retroactive as well as the police pension started immediately when he finalized, which was March of 2002.
Q. Since then, did your husband generate any business, any money from any business after he received these checks from the social security and from the police?
A. He continued doing plumbing which he did prior also.
Q. What was the name of his plumbing business?
A. S Plumbing and Heating.
Q. Where would he principally operate his business?
A. Staten Island, Brooklyn.
Q. Did you have a discussion with him about how much he was making from this plumbing business when he started in 2003?
A. He wasn't one to share financial means with us, but he did tell me, if I don't make a thousand dollars a day, it's not worth going at all.
Q. It's not worth him going to work at all, is that what he said?
A. Yes.
Q. Since 2003, how many days did he work at the plumbing business?
A. It was usually five days a week, maybe a half a day on Saturday.
Q. How many hours a week would he work?
A. Hours a week?
Q. How many hours a day?
A. I want to say between eight and nine hours a day. (tr at 24-26).
Plaintiff entered into evidence Plaintiff's exhibit #2 consisting of a handwritten labor estimate by the Defendant for plumbing services to be rendered. Plaintiff further entered into evidence a handwritten business records by the Defendant for the period of September 10, 2021 through April 6, 2023, in which the Defendant acknowledges receiving $275,000.00 in cash and checks.
Plaintiff further testified,
"Defendant has been operating as a licensed plumber for and has failed to report substantial revenue of at least a hundred thousand dollars each year" (tr at 53, lines 6-8). "Defendant is also dissipating marital assets and income on a paramour" (see id, lines 11-12).
Defendant has removed tens, if not hundreds of thousands of dollars without accounting to plaintiff. Defendant has incredible income of at least a hundred thousand dollars a year. Defendant has used marital funds in renovating the Florida condominium including furniture, electronics, and more. There are several repairs that defendant made to the house at XXX Boulevard that would have to be done if the property ever needed to be sold, specifically the steps and the plumbing. The defendant has chosen to retire. He has no impairment in pursuing his plumbing work. (see id, lines 15-24).
Plaintiff testified regarding Plaintiff's exhibit #6, a statement from parties' joint Santander bank account.
Q. Have you reviewed this exhibit that covers four years as to the deposits that were made in this account?
A. I have.
Q. And were any of these deposits from Guy's social 8 security or disability checks?
A. No, they were not.
Q. Were any of these deposits from your salary?
A. No, I have my own.
Q. In 2018, what were the total deposits?
A. $101,394.90.
Q. In 2019, what were the total deposits?
A. $114,186.40.
Q. In 2020?
A. $121,176.
Q. In 2021?
A. 2021, $82,766.
Q. What was the total deposits for these four years prior to the commencement of this action?
A. $419,000 - - $419,523.30.
Q. And what was the source of this money?
A. G's plumbing business. (tr at 55, lines 4-24).
Q. In addition, there was a Chase account for these years as well; am I correct? (tr at 55-56).
A. Yes.
Q. And what were the total deposits in the Chase account?
A. $107,016.86.
Q. And the combined balances of deposits for these two accounts in the four years before the commencement of this action?
A. $526,540.16.
Q. And the source of all these deposits were from where?
A. From his business, plumbing business. (tr at 56, lines 2-11).
Plaintiff testified regarding Plaintiff's exhibit #7, the valuation report by Heidi Muckler for Defendant's plumbing business. The conclusions of the report found that based on the "information provided on G's plumbing business, the value of Mr. S's plumbing business as follows: $466,000 for a four-year period." (tr at 57, lines 5-9).
Plaintiff testified that her total monthly expenses are $10,027.35 and her total annual expenses are $120,328.20. (tr at 35, lines 7-11). Plaintiff's testimony contrasted this amount with the family's historical monthly expenses of $17,282.35 and annual expenses of $207,388.20. (tr at 35, lines 12-15).
Plaintiff's salary as of September 2023 will be $31,000.00 and she will also receive a pension of $181.75 from Richmond Memorial Hospital. (tr at 37, lines 1-13). Plaintiff testified that her total annual income is $36,171.94. (tr at 37, lines 14-16).
Plaintiff alleges that the Defendant promised to pay the tuition for the parties' emancipated child to finish nursing school in the amount of $8,613.66, and the Defendant owed their lawn service provider an outstanding balance of $410.00. Plaintiff testified that she paid these amounts and seeks reimbursement in the amount of $9,023.66. (tr at 39, lines 4-21).
Plaintiff testified that the Defendant earns an estimated $100,000.00 per year from his business S Plumbing and Heating as valued by Mark Rose Evaluation. (tr at 40, lines 1-9). Plaintiff further testified that Defendant has a $75,000.00 life insurance policy with the Plaintiff as the beneficiary and the Plaintiff has been paying the premium of $141.00 every three months. (tr at 40, lines 10-21). Plaintiff seeks the Defendant to maintain her as the beneficiary on his $75,000.00 life insurance policy. (tr at 40, lines 10-21).
Plaintiff contends that the Mass. Mutual IRA being held by the Defendant was opened with an original investment of $120,000 and Defendant has already taken half. (tr at 43-44). Plaintiff seeks the remaining half of the Mass. Mutual IRA in the amount of approximately $60,000.00. (see id). Plaintiff further contends that the renovations and furnishings purchased for XX XXX Lane, Jensen Beach, Florida were made with marital funds and range in value from $80,000.00 to $100,000.00. (tr at 45).
Plaintiff testified that Defendant committed acts of domestic violence in the home and that she was afraid of him:
Q. Why don't you question your husband? Were you afraid of him?
A. Yes, there was a certain fear factor.
Q. There was a certain fear factor. Tell the court why?
A. He choked his mother.
Q. Nice and slow.
A. He choked his mom in front of us when all of us were together, he was verbally abusive to my mom before she passed away, and he choked one of my daughters.
Q. I didn't hear that.
A. He choked my daughter N.
Q. He choked your daughter N? What else?
A. The last few years he's been drinking excessively, and he uses pot. He purchases pot illegally and he smokes and also has his guns there. (tr at 69, lines 3-17).
A. One time he [Defendant] got very very drunk, and called my daughter and her husband to go pick him up, and he proceeded to beat her up. (tr at 70, lines 8-10).
Court: Was there ever any domestic violence in the household between you and he?
A. I mean as far as just with N when he choked her, but did he ever hit me, no, never hit me. He would raise his voice, he would break walls, break doors, you know. (tr at 69-70).
Q. Is that the reason why you never questioned what he did in his plumbing business?
A. Yes.
Q. Never questioned any of his tax returns?
A. I didn't question.
Q. That was the reason that you were afraid of him?
A. Yes.
Court: You can take a minute, ma'am. Let the record reflect plaintiff is crying and visibly upset. (tr at 70, lines 4-12).
Court: Were you afraid of your husband?
A. Yes, I was.
Court: And was that the reason why you didn't question anything?
A. I never questioned, no. He told me it wasn't my business.
Court: And was that the reason why you didn't question?
A. That's the reason. (tr at 71, lines 14-23).
Plaintiff testified regarding her hearing disability:
A. I've always had a hearing loss, but it's a disorder that worsens with age.
Court: What is the name of that genetic disorder, if any?
A. Pender, P-E-N-D-E-R. I really only found out what it was right now since my daughter's going for genetic testing because she was pregnant.
Court: What does that ailment or medical condition do to your body?
A. Well, I guess I get vertigo, dizzy. I was hospitalized twice. It's affects me, and I passed out and I broke my nose and stuff like that; equilibrium also. And I started wearing a hearing aid when the triplets were born so that would be about 20 years ago, but it's gotten progressively worse.
Court: Is it true that you required the assistance of closed captioning; closed captioning assistance for your hearing impairment today?
A. Yes. Yes, I did.
Court: And earlier you testified that the impairment to your hearing has had an impact on your employment; is that correct?
A. It is, Your Honor.
Court: And has it limited your ability to be employed or waned your ability to be employed or something else?
A. It is my ability to be employed as far as a job that I'm capable of doing like two years ago I'm no longer able to have.
Court: One of the duties you indicated you had in the course of your employment was answering telephones. Are you no longer able to do that now?
A. I'm not able to do that any longer.
Court: As result of that, are you now doing less work at your job?
A. Yes.
Court: As a result of same, are you going to be on a part-time basis rather than a full-time basis for the purposes of your employment?
A. I'm going to be on a part-time basis.
Court: Is that related, in your opinion, to your illness or your hearing impairment and/or the genetic disorder that you spread forth on the record this afternoon?
A. Yes, it is. (tr at 72-73).
Trial
Trial commenced on July 31, 2023, and Defendant failed to appear before the Court. (tr at page 4, lines 4-19). The Court found the Defendant to be in default in this action and was sentenced for contempt in absentia. (tr at 7, lines 7-10). Plaintiff's Exhibits 1 through 14 were received into evidence. (tr at 2).
I. Imputation of Income
"Income shall mean income as defined in the child support standards act and codified in section two hundred forty of this article and section four hundred thirteen of the family court act[.]" (see Domestic Relations Law § 236 [B] [5-a] [b] [4]).
Domestic Relations Law § 240 [1-b] [b] [5] provides as follows:
(5) "Income" shall mean, but shall not be limited to, the sum of the amounts determined by the application of clauses (i), (ii), (iii), (iv), (v) and (vi) of this subparagraph reduced by the amount determined by the application of clause (vii) of this subparagraph:
(i) gross (total) income as should have been or should be reported in the most recent federal income tax return. If an individual files his/her federal income tax return as a married person filing jointly, such person shall be required to prepare a form, sworn to under penalty of law, disclosing his/her gross income individually;
(ii) to the extent not already included in gross income in clause (i) of this subparagraph, investment income reduced by sums expended in connection with such investment;
(iii) to the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the amount of income or compensation voluntarily deferred and income received, if any, from the following sources:
(A) workers' compensation,
(B) disability benefits,
(C) unemployment insurance benefits,
(D) social security benefits,
(E) veterans benefits,
(F) pensions and retirement benefits,
(G) fellowships and stipends,
(H) annuity payments, and
(I) alimony or maintenance actually paid or to be paid to a spouse who is a party to the instant action pursuant to an existing court order or contained in the order to be entered by the court, or pursuant to a validly executed written agreement, in which event the order or agreement shall provide for a specific adjustment, in accordance with this subdivision, in the amount of child support payable upon the termination of alimony or maintenance to such spouse; provided, however, that the specific adjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with subparagraph two of paragraph b of subdivision nine of part B of section two hundred thirty-six of this article. In an action or proceeding to modify an order of child support, including an order incorporating without merging an agreement, issued prior to the effective date of this subclause, the provisions of this subclause shall not, by themselves, constitute a substantial change of circumstances pursuant to paragraph b of subdivision nine of part B of section two hundred thirty-six of this article.
(iv) at the discretion of the court, the court may attribute or impute income from, such other resources as may be available to the parent, including, but not limited to:
(A) non-income producing assets,
(B) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirecly [indirectly]* confer personal economic benefits,
(C) fringe benefits provided as part of compensation for employment, and
(D) money, goods, or services provided by relatives and friends
"In determining parental income under the CSSA, the court must begin with the parent's 'gross (total) income as should have been or should be reported in the most recent federal income tax return'" (see Sinnott v Sinnott, 194 A.D.3d 868 [2d Dept 2021] citing Domestic Relations Law § 240 [1-b] [b] [5] [i]; Holterman v Holterman, 3 N.Y.3d 1 [2004]; Matter of Peddycoart v MacKay, 145 A.D.3d 1081 [2d Dept 2016]) "and then to the extent not already included in gross income, the amount of income or compensation voluntarily deferred and income received from certain specified sources, including pensions and retirement benefits[.]" (see id; citing Domestic Relations Law § 240 [1-b] [b] [5] [iii] [F]; Holterman v Holterman, 3 N.Y.3d 1 [2004]; Ballard v Davis, 259 A.D.2d 881 [3d Dept 1999]).
Domestic Relations Law § 240 [1-b] [b] [5] [vii] provides for the following deductions for income:
(vii) the following shall be deducted from income prior to applying the provisions of paragraph (c) of this subdivision:
(A) unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures,
(B) alimony or maintenance actually paid to a spouse not a party to the instant action pursuant to court order or validly executed written agreement,
(C) alimony or maintenance actually paid or to be paid to a spouse who is a party to the instant action pursuant to an existing court order or contained in the order to be entered by the court, or pursuant to a validly executed written agreement, in which event the order or agreement shall provide for a specific adjustment, in accordance with this subdivision, in the amount of child support payable upon the termination of alimony or maintenance to such spouse; provided, however, that the specific adjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with subparagraph two of paragraph b of subdivision nine of part B of section two hundred thirty-six of this article. In an action or proceeding to modify an order of child support, including an order incorporating without merging an agreement, issued prior to the effective date of this subclause, the provisions of this subclause shall not, by themselves, constitute a substantial change of circumstances pursuant to paragraph b of subdivision nine of part B of section two hundred thirty-six of this article.
(D) child support actually paid pursuant to court order or written agreement on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action,
(E) public assistance,
(F) supplemental security income,
(G) New York city or Yonkers income or earnings taxes actually paid, and
(H) federal insurance contributions act (FICA) taxes actually paid.
Plaintiff has raised the issue as to whether the Defendant should have additional income imputed to him based on his alleged under reported income.
"It is settled that '[in] a matrimonial action involving issues of equitable distribution of marital property, public policy clearly mandates full financial disclosure'" (see Richter v Richter, 131 A.D.2d 453 [2d Dept 2022], quoting Charpentier v Charpentier, 495 N.Y.S.2d 89 [2d Dept 1985], citing Domestic Relations Law § 236 [B] [4]; Rubenstein v Rubenstein, 117 A.D.2d 593 [2d Dept 1986]; Hirschfeld v Hirschfeld, 114 A.D.2d 1006 [2d Dept 1985], affd 69 N.Y.2d 842 [1987]; Van Ess v Van Ess, 100 A.D.2d 848 [2d Dept 1984]; 22 NYCRR § 202.16.
"In determining a party's maintenance and child support obligations, '[a] court need not rely upon a party's own account of his [or her] finances, but may impute income based upon the party's past income or demonstrated future potential earnings[.]'" (see Tuchman v Tuchman, 201 A.D.3d 986 [2d Dept 2022] quoting Duffy v Duffy, 84 A.D.3d 1151 [2d Dept 2011]; citing Wesche v Wesche, 77 A.D.3d 921 [2d Dept 2010]; Steinberg v Steinberg, 59 A.D.3d 702 [2d Dept 2009]).
"The court may impute income to a party based on his or her employment history, future earning capacity, educational background, or money received from friends and relatives[.]" (see id quoting Duffy v Duffy, 84 A.D.3d 1151 [2d Dept 2011]; citing Matter of Rohme v Burns, 92 A.D.3d 946 [2d Dept 2012]; Wesche v Wesche, 77 A.D.3d 921 [2d Dept 2010]).
"Where a party's account is not believable, the court may impute a true or potential income higher than alleged[.]" (see id quoting Wesche v Wesche, 77 A.D.3d 921 [2d Dept 2010]; citing Duffy v Duffy, 84 A.D.3d 1151 [2d Dept 2011]). "The court has considerable discretion in determining whether income should be imputed to a party and the court's credibility determinations are accorded deference on appeal[.]" (see id quoting Matter of Monti v DiBedendetto, 151 A.D.3d 864 [2d Dept 2017]; citing Matter of Kiernan v Martin, 108 A.D.3d 767 [2d Dept 2013]).
Defendant reports in his statement of net worth an annual income of $116,468.00 consisting of a New York City Police Department disability pension in the amount of $64,410.00, Social Security benefits in the amount of $32,058.00, and an IRA distribution in the amount of $20,000.00. (NY St Cts Filing [NYSCEF] Doc No. 155). Plaintiff reports in her statement of net worth her income as $31,000.00 commencing in September 2023. (NY St Cts Filing [NYSCEF] Doc No. 230).
Plaintiff credibly testified that since, the Defendant's retirement from the police department, the parties have lived well outside their means. The parties owned two mortgage free properties, paid off the mortgage on the marital residence, paid their credit card bills in full each month, owned and leased luxury vehicles, took lavish vacations, spent lavishly on food and clothes on a monthly basis, and provided for their four adult daughters. Plaintiff's testimony clearly demonstrates that the parties were able to successfully maintain this lavish lifestyle because from 2003 until Defendant moved to Florida in May 2022, Defendant operated a lucrative cash business as a master plumber under the business name "S Plumbing & Heating".
Plaintiff alleges that Defendant's business has no formal business organization documents, has no books or records, and has never filed a tax return in all its years of operation. Defendant's income from this business was all unreported. Plaintiff entered into evidence Plaintiff's exhibit #2 consisting of a handwritten labor estimate by the Defendant for plumbing services to be rendered. Plaintiff further entered into evidence a handwritten business records by the Defendant for the period of September 10, 2021 through April 6, 2023, in which the Defendant acknowledges receiving $275,000.00 in cash and checks.
Plaintiff further testified regarding Plaintiff's exhibit #7, the valuation report by Heidi Muckler for Defendant's plumbing business. The conclusions of the report found that based on the "information provided on G's plumbing business, the value of Mr. S's plumbing business as follows: $466,000 for a four-year period." (tr at 57, lines 5-9).
The Court has considered the evidence provided in the form of Defendant's purchases of plumbing supplies, his invoices to customers and written statement that his hourly rate for labor is $125.00 [see Plaintiff's exhibit #2], his unidentified deposits into his account, and the spending habits of the family for the years prior to commencement. Accordingly, the Court is therefore imputing an annual income of $31,000.00 to the Plaintiff and an annual income of $272,000.00 to the Defendant, pendente lite, for the purpose of calculations made herein.
I. Maintenance
Plaintiff seeks Defendant to pay to the Plaintiff $6,500.00 per month in maintenance (NY St Cts Filing [NYSCEF] Doc No. 148) for a duration of 15 years (NY St Cts Filing [NYSCEF] Doc No. 147).
"The court may order maintenance in such amount as justice requires, considering, among other factors, the standard of living of the parties during the marriage, the distribution of marital property, the duration of the marriage, the health and present and future earning capacity of the 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[.] (see Belilos v Rivera, 164 A.D.3d 1411 [2d Dept 2018] citing Domestic Relations Law § 236[B] [6] [a]; D'Alauro v D'Alauro, 150 A.D.3d 675 [2d Dept 2017]).
Pursuant to Domestic Relations Law § 236 [B] [6] [e][1], the Court shall order post-divorce maintenance up to the income cap, "unless the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate, which finding shall be based upon consideration of any one or more of the following factors:"
(a) the age and health of the parties;
(b) the present or future earning capacity of the parties, including a history of limited participation in the workforce;
(c) the need of one party to incur education or training expenses;
(d) the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded;
(e) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
(f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
(g) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
(h) the availability and cost of medical insurance for the parties;
(i) the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;
(j) the tax consequences to each party;
(k) the standard of living of the parties established during the marriage;
(l) the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage;
(m) the equitable distribution of marital property and the income or imputed income on the assets so distributed;
(n) the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
(o) any other factor which the court shall expressly find to be just and proper.
"The court may order maintenance in such amount as justice requires, considering, among other factors, the income and property of the parties, the standard of living of the parties during the marriage, the present and future earning capacity of the parties, the distribution of marital property, the duration of the marriage, the age and health of the 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 (see Yuliano v Yuliano, 175 A.D.3d 1354 [2d Dept 209] citing Domestic Relations Law former § 236 [B]; D'Alauro v D'Alauro, 150 A.D.3d 675 [2d Dept 2017]).
The Court may Order an award of maintenance to a party for life for an unlimited duration where there was testimony that the party's health might be impaired. (see Foy v. Foy, 121 A.D.2d 501 [2d Dept 1986]). In such a situation the Court would also be acting properly to direct the payor spouse to "continue in effect any existing medical, dental and life insurance for the benefit of the defendant[.]" (see id).
"It is well established that the amount and duration of maintenance is a matter committed to the sound discretion of the trial court (see Wilner v. Wilner, 192 A.D.2d 524 [2d Dept 1993]; Loeb v. Loeb, 186 A.D.2d 174 [2d Dept 1992]). In fixing the amount of such an award, a court must take into account the financial circumstances of both parties, including their reasonable needs and means (see Raviv v Raviv, 153 A.D.2d 932 [2d Dept 1989]; Foy v Foy, 121 A.D.2d 501 [2d Dept 1986]). A court must also consider the paying spouse's present and anticipated income, the payee spouse's present and future earning capacity, and both parties' preseparation standard of living (see Raviv v Raviv, 153 A.D.2d 932 [2d Dept 1989])." (see Feldman v. Feldman, 194 A.D.2d 207 [2d Dept 1993]).
A. Guideline Amount Calculation Spousal Maintenance
Plaintiff
Defendant
Gross Income
$31,000.00
$272,000.00
FICA: Social Security tax paid
($1,922.00)
($7,254.00)
Medicare tax paid
($449.50)
($1,696.50)
New York City income tax paid
($719.82)
($0.00)
Adjusted CSSA Income
$27,908.68
$263,049.50
First Calculation
20% of payor's income up to and including the cap
$60,900.00
Minus 25% of payee's income
($5,581.74)
Result 1
$55,318.26
Second Calculation
Payor's income up to and including the cap
$203,000.00
Plus payee's income
$27908.68
Combined income
$230,908.68
40% of combined income
$92,363.47
Minus payee's income
($27,908.68)
Result 2
$55,318.26
Lower of the two results
$55,318.26
Accordingly, the guideline spousal maintenance amount payable by the Defendant to the Plaintiff is $55,318.26 annually or $4,609.86 monthly.
B. Exceeding Guideline Amount Calculation Spousal Maintenance
Pursuant to Domestic Relations Law § 236 [B] [6][e][2], "Where the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate and the court adjusts the post-divorce maintenance guideline obligation pursuant to this paragraph, the court shall set forth, in a written decision or on the record, the unadjusted post-divorce maintenance guideline obligation, the factors it considered, and the reasons that the court adjusted the post-divorce maintenance obligation. Such decision shall not be waived by either party or counsel."
The Court has considered all the factors outlined in Domestic Relations Law § 236 [B] [6][e][1] in conjunction with the applicable caselaw discussed above. The Court is especially concerned with the following factors:
(1) the health of Plaintiff, due to her suffering from Pender, a genetic hearing disorder;
(2) the Plaintiff's limited present and future earning capacity due to her worsening hearing ability, which has already resulted in a demotion of her position and earning capacity;
(3) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
(4) The acts of domestic violence perpetrated within the marital household by the Defendant;
(5) the equitable distribution of marital property and the income or imputed income on the assets distributed; and,
(6) the standard of living the parties established during the marriage.
Accordingly, the Court in its discretion has removed the statutory cap from the calculations and monthly spousal maintenance is GRANTED to the Plaintiff for a set time certain commencing with this Order and continuing for a period of fifteen years from the date of this Order.
Defendant is ORDERED to pay to the Plaintiff monthly spousal maintenance in the amount of $6,111.00 [Six Thousand One Hundred Eleven Dollars and No Cents] for a duration of fifteen years.
II. Equitable Distribution
Plaintiff seeks (1) the Defendant to transfer all right, title, and interest in and to the real property located at XX XXX Boulevard, Staten Island, New York to the Plaintiff by means of a bargain and sale deed with covenants; (2) the Defendant to transfer all right, title, and interest in and to the real property located at XX XXX Lane, Jensen Beach, Florida to the Plaintiff by means of a bargain and sale deed with covenants; (3) the Defendant to transfer all right, title, and interest in and to the 2022 Cadillac in exchange for the Cadillac CT4 currently operated by the Plaintiff and leased in the Defendant's name; (4) title to the 1999 Mercedes Benz presently held in title by the Defendant; (5) the remaining half of the Mass. Mutual IRA in the amount of approximately $60,000.00; (6) all the furnishings of XX XXX Lane, Jensen Beach, Florida; (7) eight year old Yacht-Master Rolex watch with an approximate value of $14,000.00; (8) equitable distribution of the marital portion of the Defendant's pension.
"Equitable distribution law does not mandate an equal division of marital property[.]" (see Jones v Jones, 182 A.D.3d 586 [2d Dept 2020] quoting Culen v Culen, 157 A.D.3d 926 [2d Dept 2018]; Scaramucci v Scaramucci, 140 A.D.3d 848 [2d Dept 2016]). "The equitable distribution of marital assets must be based on the circumstances of the particular case and the consideration of a number of statutory factors." (see Jones v Jones, 182 A.D.3d 586 [2d Dept 2020] quoting Culen v Culen, 157 A.D.3d 926 [2d Dept 2018] citing Domestic Relations Law § 236 [B] [5] [d]). "Those factors include: the income and property of each party at the time of marriage and at the time of commencement of the divorce action; the duration of the marriage; the age and health of the parties; the loss of inheritance and pension rights; any award of maintenance; any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of marital property by the party not having title; and any other factor which the court shall expressly find to be just and proper[.]" (see Silvers v Silvers, 197 A.D.3d 1195 [2d Dept 2021]; quoting Taylor v Taylor, 140 A.D.3d 944 [2d Dept 2016]; Halley-Boyce v Boyce, 108 A.D.3d 503 [2d Dept 2013]; citing Domestic Relations Law § 236 [B] [5] [d]).
"The factors a court must consider in distributing marital property are set forth in Domestic Relations Law § 236 [B] [5] [d]. 'In fashioning an award of equitable distribution, the Supreme Court is required to discuss the statutory factors it relied upon in distributing marital property[.]'" (see Morille-Hinds v Hinds, 87 A.D.3d 526 [2d Dept 2011]; quoting Spera v. Spera, 71 A.D.3d 661 [2d Dept 2010]; quoting Milnes v. Milnes, 50 A.D.3d 750 [2d Dept 2008]).
Where health of both parties is not at issue, and "where both spouses equally contribute to the marriage which is of long duration, a division should be made which is as equal as possible[.]" (see Smith v. Smith, 162 A.D.2d 346 [1st Dept 1990]; Flom v Flom, 170 A.D.3d 440 [1st Dept 2019]).
"When both spouses equally contribute to a marriage of long duration, the division of marital property should be as equal as possible; however, equitable distribution does not necessarily mean equal distribution[.]" (see Spencer-Forrest v Forrest, 159 A.D.3d 762 [2d Dept 2018].
"Although in a marriage of long duration, where both parties have made significant contributions to the marriage, a division of marital assets should be made as equal as possible... there is no requirement that the distribution of each item of marital property be made on an equal basis[.]" (see Baron v Baron, 71 A.D.3d 807 [2d Dept 2010).
"Marital property must be distributed equitably between the parties, considering the circumstances of the particular case and a number of statutory factors[.] The trial court is vested with broad discretion in making an equitable distribution of marital property[.]" (see Eschemuller v Eschemuller, 167 A.D.3d 983 [2d Dept 2018]).
The Court has "adhered to the principle that both parties in a matrimonial action are entitled to fundamental fairness in the allocation of marital assets, and that the economic and noneconomic contributions of each spouse are to be taken into account." (see Holterman v Holterman, 3 N.Y.3d 1 [2004]). In determining equitable distribution, the Court further took into consideration all relevant factors including, "the gross disparity in the parties' current and probable future incomes" and "husband's good health in contrast to wife's chronic health difficulties[.]" (see id).
The Court has also considered that "separate property that is commingled, for example, in a joint bank account, loses its character of separateness and a presumption arises that each party is entitled to a share of the funds (see Brown v Brown, 147 A.D.3d 896 [2d Dept 2017] citing Banking Law § 675 [b]; Sherman v Sherman, 304 A.D.2d 744 [2d Dept 2003]; Di Nardo v Di Nardo, 144 A.D.2d 906 [4th Dept 1988]).
Plaintiff and Defendant were married on June 15, 1991 and were married for approximately 31 years at the time of commencement of this action on July 18, 2022. For thirty-one years, Defendant was the primary wage earner for the family, supporting their standard of living while the Plaintiff was a homemaker working a modest paying job outside the home to help reduce tuition costs for their daughters. This was an arrangement devised by Defendant and the children's school. Defendant supported a luxurious marital lifestyle for the family through his unreported income.
Plaintiff testified that she will be working part-time for Moore Catholic High School, having been reduced from full-time due to her significant hearing loss. (tr at 13, lines 2-7). Plaintiff's salary as secretary will be $31,000.00 in September 2023. (tr at 36-37). Plaintiff's position and her salary have been reduced because of her diminished hearing capacity due to her hearing disability. (tr at 72-73).
Plaintiff credibly contends that Defendant has dissipated marital assets and income on a paramour that allegedly lives with him in the parties' Florida residence, has removed thousands of dollars from the parties' joint assets without accounting to the Plaintiff, and has used marital funds in renovating the parties' Florida Condominium, including for the purchase of furniture, electronics, décor, and appliances. (tr at 43-45).
"The trial court is vested with broad discretion in making an equitable distribution of marital property[.]" (see Michaelessi v. Michaelessi, 59 A.D.3d 688 [2d Dept 2009]).
Pursuant to Domestic Relations Law § 236 [B] [5] [d], marital property shall be distributed "equitably" between the parties and the Court has considered the following factors in determining the distribution of the parties' assets:
(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. The court shall not consider as marital property subject to distribution the value of a spouse's enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, in arriving at an equitable division of marital property, the court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse;
(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) whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts;
(15) in awarding the possession of a companion animal, the court shall consider the best interest of such animal. "Companion animal", as used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law; and
(16) any other factor which the court shall expressly find to be just and proper.
Accordingly, it is ORDERED that the total value of all assets of the marriage shall be divided on a pro-rata basis. Equitable distribution of the marital assets shall be made with Plaintiff receiving a pro rata share of 60% and Defendant's receiving a pro rata share of 40%.
A. Marital Assets
The marital assets subject to equitable distribution are as follows:
| Asset | Value |
| Residence located at XX XXX Boulevard, Staten Island, New York | $968,500.00 |
| Residence located at XX XXX Lane, Jensen Beach, Florida | $294,000.00 |
| Florida renovations/furnishings | $100,000.00 |
| Yacht-Master Rolex watch(s) | $14,000.00 |
| 2022 Cadillac in possession of Defendant | $45,000.00 |
| 1999 Mercedes Benz | $5,000.00 |
| Mass Mutual IRA (Present Value $60,000.00) | $160,000.00 |
| Total Value | $1,586,500.00 |
B. Residence located at XX XXX Boulevard, Staten Island, New York
Plaintiff seeks to have the Defendant transfer all right, title, and interest in and to the real property, located at Residence located at XX XXX Boulevard, Staten Island, New York, to the Plaintiff by means of a bargain and sale deed with covenants.
This is a marriage of long duration. Defendant is the monied spouse. Plaintiff's ability to work due to her declining hearing ability has already resulted in a loss of employment position and a decline in income and faces financial obstacles due to her declining income capacity. The Court has considered the testimony and evidence submitted as factors in determining equitable distribution under Domestic Relations Law § 236 [B] [5] [d].
With respect to the equitable distribution of the parties' marital residence, XX XXX Boulevard, Staten Island, New York, "it is important to note that there is no requirement that the distribution of each item of marital property be on an equal basis[.]" (see Rizzo v Rizzo, 120 A.D.3d 1400 [2d Dept 2014] citing Coffey v Coffey, 119 A.D.2d 620 [2d Dept 1986]). In determining the distribution of the marital residence, the Court has also considered the Plaintiff's claim for reimbursement of other debts claimed and equitable distribution of other marital assets. Here, equity dictates that the Plaintiff should receive all right, title, and interest in and to the real property, located at XX XXX Boulevard, Staten Island, New York, by means of a bargain and sale deed with covenants.
In addition, the Court finds that all household furnishings and personal effects contained within the parties' marital residence, located at XX XXX Boulevard, Staten Island, New York, shall constitute the sole and exclusive property of the Plaintiff.
Accordingly, it is ORDERED that the Defendant transfer all right, title, and interest in and to the real property, located at XX XXX Boulevard, Staten Island, New York, to the Plaintiff by means of a bargain and sale deed with covenants and that all household furnishings and personal effects contained within the parties' marital residence, located at XX XXX Boulevard, Staten Island, New York, shall constitute the sole and exclusive property of the Plaintiff.
C. Residence located at XX XXX Lane, Jensen Beach, Florida
Plaintiff seeks to have the Defendant transfer all right, title, and interest in and to the real property, located at XX XXX Lane, Jensen Beach, Florida, to the Plaintiff by means of a bargain and sale deed with covenants. In determining the distribution of the real property, located at XX XXX Lane, Jensen Beach, Florida, including the renovations made thereto, the Court has considered the afore equitable distribution of the marital residence, XX XXX Boulevard, Staten Island, New York. Here, equity dictates that the Defendant should receive all right, title, and interest in and to the real property, located at XX XXX Lane, Jensen Beach, Florida, by means of a bargain and sale deed with covenants.
In addition, the Court finds that all household furnishings and personal effects contained within the real property, located at XX XXX Lane, Jensen Beach, Florida, shall constitute the sole and exclusive property of the Defendant.
Accordingly, it is ORDERED that the Plaintiff transfer all right, title, and interest in and to the real property, located at XX XXX Lane, Jensen Beach, Florida, to the Defendant by means of a bargain and sale deed with covenants and that all household furnishings and personal effects contained within the real property, located at XX XXX Lane, Jensen Beach, Florida, shall constitute the sole and exclusive property of the Defendant.
D. Cadillac Vehicles
Plaintiff seeks to have the Defendant transfer all right, title, and interest in and to the 2022 Cadillac currently in his possession to the Plaintiff in exchange for the Cadillac CT4 currently operated by the Plaintiff and leased in the Defendant's name. In determining the distribution of the parties' Cadillac automobiles, the Court has considered the afore equitable distribution of the marital residence, XX XXX Boulevard, Staten Island, New York. Here, equity dictates that the Defendant should retain the 2022 purchased with marital funds and the Plaintiff shall retain use of the leased Cadillac CT4 and assume responsibility for all lease payments on said vehicle.
Accordingly, it is ORDERED that the Plaintiff transfer any and all right, title, and interest in the 2022 Cadillac currently in possession of the Defendant to the Defendant; and it is further, ORDERED that the Defendant transfer any and all right, title, and interest in the leased Cadillac CT4 currently operated by the Plaintiff and leased in the Defendant's name to the Plaintiff; and it is further, ORDERED that the Plaintiff assume responsibility for all lease payments on said leased Cadillac CT4 vehicle.
E. 1999 Mercedes Benz
Plaintiff seeks to have the Defendant transfer all right, title, and interest in and to the 1999 Mercedes Benz presently held in title by the Defendant to the Plaintiff. In determining the distribution of the parties' 1999 Mercedes Benz, the Court has considered the afore equitable distribution of the marital residence, XX XXX Boulevard, Staten Island, New York. Here, equity dictates that the Defendant should retain the 1999 Mercedes Benz purchased with marital funds.
Accordingly, it is ORDERED that the Plaintiff transfer any and all right, title, and interest in the 1999 Mercedes Benz currently in possession of the Defendant to the Defendant.
F. Yacht-Master Rolex Watch
Plaintiff seeks to have the Defendant transfer all right, title, and interest in and to the Yacht-Master Rolex watch(s) presently by the Defendant to the Plaintiff. In determining the distribution of the parties' Yacht-Master Rolex watch(s), the Court has considered the afore equitable distribution of the marital residence, XX XXX Boulevard, Staten Island, New York. Here, equity dictates that the Defendant should retain the Yacht-Master Rolex watch(s) purchased with marital funds.
Accordingly, it is ORDERED that the Plaintiff transfer any and all right, title, and interest in the Yacht-Master Rolex watch(s) currently in possession of the Defendant to the Defendant.
F. Mass. Mutual IRA
Plaintiff seeks to have the Defendant transfer all right, title, and interest in and to the Mass. Mutual IRA to Plaintiff and restore to the Plaintiff the funds necessary to make the Plaintiff whole in receiving her equitable share of the original $160,000.00 value of the account prior to the Defendant's removal of $100,000.00 from the account. In determining the distribution of the parties' Mass. Mutual IRA, the Court has considered the afore equitable distribution of the marital residence, XX XXX Boulevard, Staten Island, New York. Here, equity dictates that the Defendant should retain the remaining value of the Mass. Mutual IRA funded with marital funds.
Accordingly, it is ORDERED that the Plaintiff transfer any and all right, title, and interest in the Mass. Mutual IRA to the Defendant.
G. Equitable Distribution of Pension Assets
It is ORDERED that the marital shares of the parties' pension benefits, which were accumulated during the marriage, shall be distributed pursuant to the Majauskas formula with a Qualified Domestic Relations Order to be submitted by the parties within 60 days of this Decision and Order.
III. Life Insurance Policy
Plaintiff seeks the Defendant to maintain her as the beneficiary on his $75,000.00 life insurance policy (tr at 40, lines 10-21) and the World Trade Center life insurance policy to guarantee Plaintiff's support (tr at 41-42).
Pursuant to Domestic Relations Law § 236 [B] [8] [a], "[i]n any matrimonial action the court may order a party to purchase, maintain or assign a policy of insurance providing benefits for health and hospital care and related services for either spouse or children of the marriage not to exceed such period of time as such party shall be obligated to provide maintenance, child support or make payments of a distributive award."
"The death of a payor spouse, however, may cause financial injury to a former spouse or children who, but for the payor spouse's death, would have continued to receive maintenance, a distributive award, or child support. Accordingly, the legislature has provided that a court may require a payor spouse to maintain life insurance to prevent that financial injury" (see Shvalb v. Rubinshtein, 204 A.D.3d 1059 [2d Dept 2022] citing Domestic Relations Law § 236 [B] [8] [a]; Mayer v Mayer, 142 A.D.3d 691 [2d Dept 2016]).
Accordingly, the Plaintiff's request that the Defendant maintain the Plaintiff as the beneficiary on his $75,000.00 life insurance policy and the World Trade Center life insurance policy for the duration of the maintenance period to guarantee Plaintiff's support is GRANTED and the Defendant is ORDERED to maintain the Plaintiff as the beneficiary on his $75,000.00 life insurance policy and the World Trade Center life insurance policy for the duration of the maintenance period.
IV. Reimbursement of Personal Debts and Obligations
Plaintiff seeks reimbursement from the Defendant in the amount of $12,023.66 for reimbursement of monies owed to the Plaintiff by the Defendant. Plaintiff alleges that the Defendant promised to pay the tuition for the parties' emancipated child to finish nursing school in the amount of $8,613.66, and the Defendant owed their lawn service provider an outstanding balance of $410.00. Plaintiff testified that she paid these amounts and seeks reimbursement in the amount of $9,023.66. Plaintiff further seeks reimbursement for half of a $6,000.00 housewarming gift for the parties' daughter.
In consideration of the afore equitable distribution of the marital residence, XX XXX Boulevard, Staten Island, New York. Equity dictates that the Plaintiff's request for reimbursement in the amount of $12,023.66 is DENIED.
V. Counsel Fees
Plaintiff seeks the Defendant to pay Plaintiff's counsel fees in the amount of $86,084.00.
Pursuant to Domestic Relations Law § 237 [a], "There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded." "An award of reasonable counsel fees in a matrimonial action is a matter within the discretion of the trial court[.]" (see Guzzo v Guzzo, 110 A.D.3d 765 [2d Dept 2013] citing Domestic Relations Law § 237 ; De Cabrera v. Cabrera-Rosete, 70 N.Y.2d 879 [1987]; Quinn v Quinn, 73 A.D.3d 887 [2d Dept 2010]).
"For matrimonial actions such as this one, commenced on or after October 12, 2010, there is a statutory 'rebuttable presumption that counsel fees shall be awarded to the less monied spouse[.]'" (see Weidman v Weidman, 162 A.D.3d 720 [2d Dept 2018] quoting Domestic Relations Law § 237 [a]; citing Teaney v. Teaney, 138 A.D.3d 1301 [3rd Dept 2016]; Vantine v Vantine, 125 A.D.3d 1259 [3rd Dept 2018]). "[I]n exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case[.]" (see id quoting De Cabrera v Cabrera-Rosete, 70 N.Y.2d 879 [1987]).
"In addition, the court may 'take into account whether one party has delayed the proceedings or engaged in unnecessary litigation[.]'" (see Margolis v Cohen, 153 A.D.3d 1390 [2d Dept 2017] quoting Mueller v Mueller, 113 A.D.3d 660 [2d Dept 2014]; citing Guzzo v Guzzo, 110 A.D.3d 765 [2d Dept 2013]). "Given the statutory background and the unswerving direction of the decisional law over the last century and a half, we further hold that the court had discretion to grant counsel fees[.] This is not to say that awards for legal services... should be routinely expected or freely granted [.] Again, it is a matter of discretion, to be exercised in appropriate cases, to further the objectives of litigational parity, and to prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation[.]" (see O'Shea v O'Shea, 93 N.Y.2d 187 [1999] citing Wyser-Pratte v Wyser-Pratte, 160 A.D.2d 290 [1st Dept 1990]).
"Where a party has asserted unreasonable positions or failed to cooperate in discovery, and thereby increased the cost of the litigation, the court may make a counsel fee award in favor of the offended party or not make, or make a lesser award, in favor of the offending party" (see Kaufman v Kaufman, 189 A.D.3d 31 [2d Dept 2020] citing Morille-Hinds v Hinds, 169 A.D.3d 896 [2d Dept 2019]; Cravo v Diegel, 163 A.D.3d 920 [2d Dept 2018]; Culen v Culen, 157 A.D.3d 926 [2d Dept 2018]; Samimi v Samimi, 134 A.D.3d 1010 [2d Dept 2015]).
In exercising its discretionary power to award counsel fees, the court has reviewed the financial circumstances of both parties together with all the other circumstances of the case, including the relative merit of the parties' positions, as well as the tactics of the Defendant in unnecessarily prolonging the litigation. (see Franco v Franco, 97 A.D.3d 785 [2d Dept 2012]; citing De Cabrera v Cabrera-Rosete, 70 N.Y.2d 879 [1987]; Powers v Wilson, 56 A.D.3d 639 [2d Dept 2008]; Prichep v Prichep, 52 A.D.3d 61 [2d Dept 2008]).
The Court has considered the Plaintiff's claim for an award of counsel fees pursuant to Domestic Relations Law § 237 [a] in connection with the Court's award to the Plaintiff of a Judgment for counsel fees on August 18, 2023 (NY St Cts Filing [NYSCEF] Doc No. 148) and the Plaintiff's request for an award of counsel fees would be duplicative and is DENIED.
Decision and Order
IN SUMMARY, IT IS HEREBY ORDERED AS FOLLOWS:
ORDERED that the Defendant shall pay to the Plaintiff monthly spousal maintenance in the amount of $6,111.00 [Six Thousand One Hundred Eleven Dollars and No Cents] for a duration of fifteen years from the date of this Order; and it is further,
ORDERED that the Defendant transfer all right, title, and interest in and to the real property, located at XX XXX Boulevard, Staten Island, New York, to the Plaintiff by means of a bargain and sale deed with covenants within 30 days of Notice of Entry of this Memorandum Decision and Order and that all household furnishings and personal effects contained within the parties' marital residence, located at XX XXX Boulevard, Staten Island, New York, shall constitute the sole and exclusive property of the Plaintiff; and it is further,
ORDERED that the Plaintiff transfer all right, title, and interest in and to the real property, located at XX XXX Lane, Jensen Beach, Florida, to the Defendant by means of a bargain and sale deed with covenants within 30 days of Notice of Entry of this Memorandum Decision and Order and that all household furnishings and personal effects contained within the real property, located at XX XXX Lane, Jensen Beach, Florida, shall constitute the sole and exclusive property of the Defendant; and it is further,
ORDERED that the Plaintiff transfer any and all right, title, and interest in the 2022 Cadillac currently in possession of the Defendant to the Defendant; and it is further, ORDERED that the Defendant transfer any and all right, title, and interest in the leased Cadillac CT4 currently operated by the Plaintiff and leased in the Defendant's name to the Plaintiff; and it is further,
ORDERED that the Plaintiff assume responsibility for all lease payments on said leased Cadillac CT4 vehicle; and it is further,
ORDERED that the Plaintiff transfer any and all right, title, and interest in the 1999 Mercedes Benz currently in possession of the Defendant to the Defendant; and it is further,
ORDERED that the Plaintiff transfer any and all right, title, and interest in the Yacht-Master Rolex watch(s) currently in possession of the Defendant to the Defendant; and it is further,
ORDERED that the Plaintiff transfer any and all right, title, and interest in the Mass. Mutual IRA to the Defendant; and it is further,
ORDERED that the marital shares of the parties' pension benefits, which were accumulated during the marriage, shall be distributed pursuant to the Majauskas formula with a Qualified Domestic Relations Order to be submitted by the parties within 60 days of this Decision and Order; and it is further,
ORDERED that the Defendant maintain the Plaintiff as the beneficiary on his $75,000.00 life insurance policy and the World Trade Center life insurance policy for the duration of the maintenance period; and it is further,
ORDERED that the Plaintiff is to file this Memorandum Decision and Order with Notice of Entry within 20 days of the date herein; and it is further,
ORDERED that Plaintiff is to submit proposed findings of fact and conclusions of law and proposed Judgment of Divorce, with all required filings and fees within 60 days on Notice; and it is further,
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
The foregoing shall constitute the Decision and Order of this Court.