Opinion
No. 2012–6718.
04-07-2016
T.S., Plaintiff, v. J.S., Defendant.
Counsel for Plaintiff: Pro-se. Counsel for Defendant: Gladys LaForge, Esq.
Counsel for Plaintiff: Pro-se.
Counsel for Defendant: Gladys LaForge, Esq.
MARIA S. VAZQUEZ–DOLES, J.
PROCEDURAL HISTORY
In 1999, Defendant/Wife instituted the first divorce action against Plaintiff/Husband. The parties subsequently reconciled and discontinued that action. The current action for divorce was commenced by Husband on August 2, 2012, but the RJI was filed on January 7th, 2013. This case was originally assigned to the Hon. Sandra Sciortino, J.S.C. An Answer with counterclaim was filed on May 3, 2013. Plaintiff/husband appeared by counsel, Peter Barlet, Jr., Esq. Defendant/wife appeared by counsel, Gladys LaForge, of Counsel to the Law Offices of Alysia Baker, Esq. The parties held a four way meeting in an attempt to settle the case, but were unsuccessful. The Note of Issue was filed by Plaintiff's counsel on October 9, 2013. On November 27, 2013, Peter Barlet, Jr., Esq. was withdrawn as Plaintiff's counsel. Plaintiff was directed to appear with new counsel on January 8, 2014, the case was set for trial on March 31, 2014 and then reassigned before the undersigned Judge. Plaintiff failed to appear on January 8, 2014 and this Court adjourned until January 16, 2014.
On the adjourned date, a conference was held with this Court's Principal Court Attorney and the parties. Those present were the pro-se Plaintiff, Defendant and Defendant's Counsel. During the conference, Plaintiff was directed to provide updated financial discovery to Defendant by a date certain and this Court inquired as to his intention to hire new counsel. Plaintiff waived his right to counsel and stated that he wanted to represent himself. On March 25th, 2014, Defendant's counsel sent Plaintiff a Trial Subpoena Duces Tecum to appear with the financial documents listed, on the date set for trial on March 31, 2014 along with a $15 witness fee. This Court conducted a trial over two days; on March 31, 2014 and July 14, 2014. Plaintiff appeared pro-se and Defendant appeared with counsel, Glady's LaForge, from the Office of Alysia Baker, Esq. Plaintiff testified on his own behalf on the first date and did not call any other witnesses. Defendant entered evidence at cross-examination as Defendant's Exhibits A through E.
Plaintiff failed to appear on July 14, 2015, without excuse. On the second day of trial, Defendant stated that Plaintiff knew to come to court but went to work instead. Defendant's counsel moved this Court to dismiss Plaintiff's Complaint, proceed with an inquest on that date under Defendant's Verified Answer and counterclaim, and transfer the Defendant's Exhibits A through E for use on her counterclaim. After inquiry, this Court was satisfied that Plaintiff willfully defaulted and granted Defendant's motions. The trial continued and concluded on the second day with the Defendant being the only witness to testify on that date.
Defendant/wife proceeded to an inquest on her Verified Answer and counterclaim on the grounds that the relationship between the parties have broken down irretrievably for a period of at least six month pursuant to DRL § 170(7) and on the ancillary issues. The only witnesses to testify at trial and inquest were the parties. The Court has had a full opportunity to consider the evidence presented with respect to the issues in this proceeding, including the testimony offered, the exhibits received, the Defendant's statement of proposed disposition and the parties' net worth statements. The Court has further had an opportunity to observe the demeanor of the various witnesses called to testify and has made determinations on issues of credibility with respect to these witnesses. The Court now makes the following findings of fact and conclusions of law:
DIVORCE GROUNDS
On July 14, 2014, due to Plaintiff's failure to appear for the second day of trial, this Court granted Defendant's motion to dismiss Plaintiff's Complaint. This Court also granted a default judgment against the Plaintiff, following an inquest on her Verified Answer and counterclaim, where the Defendant established the ground pursuant to DRL § 170(7), that the relationship between the parties have broken down irretrievably for a period of at least six month.
FACTUAL BACKGROUND
THE PARTIES AND THEIR CHILDREN
The parties were married on March 16, 1996, in Demarest, New Jersey in a religious ceremony and have two children born of this marriage, to wit: KATINA S., born August 28, 1986 and NICHOLAS S., born September 27, 1994, and no further children are expected. The parties both reside at the marital residence located at 7 Mountainview Drive, Warwick, New York 10990. At the time of the trial, their son Nicholas S. did not permanently live in the home and did not go to school. The parties agree that both children are considered emancipated.
The Plaintiff/ husband is 57 years old, a high school graduate and has attended numerous mechanical vocational schools and obtained certificates. He complains of occasional kidney stones and skin cancer in his leg but does not provide medical proof. The Defendant/ wife is 54 years old, dropped out of high school and earned her GED. Defendant had two back surgeries and complained of type II diabetes, high cholesterol, neck issues and anxiety.
THE PLAINTIFF'S INCOME AND EARNING CAPACITY
The Plaintiff worked during the marriage as an auto mechanic and for more than a decade, he has worked as a Service Manager/ Administrator for a car dealership known as Chrysler Jeep Dodge of Paramus, New Jersey and its subsidiaries 60 to 80 hours per week. The Plaintiff's gross income was $89,888 for 2011; $104,689.51 in 2012 from two w2s received, to wit:: (1) Chrysler Plymouth of Paramus, Inc. in the amount of $6,000.00 and (2)Chrysler Jeep Dodge of Paramus in the amount of $98,689.51 (Defendant's Exhibit E); and $87,000.00 in 2013 from two w2s in the court's records received from: (1) Chrysler Jeep Dodge of Paramus in the amount of $17,000.00 and (2) Paramus Hundai, Inc. in the amount of $70,000.00. Although Defense counsel states in her Statement of Proposed Disposition that Plaintiff allegedly received an additional $4,956 in 2013 in worker's compensation from July 8, 2013 to August 23, 2013 for a shoulder injury that was not included in his w2s, she did not put into evidence the source upon which she relies, the deposition transcript. Therefore, the court will not include that amount to his 2013 income.
At trial, Plaintiff's income for the first quarter of the year 2014 was $25,776.87, evidenced by a check stub with the year to date income period ending on March 11, 2014 (Defendant's Exhibit D). Multiplying that number by four quarters in the year, Plaintiff's projected income for 2014 would be $103,107.48. Plaintiff testified on the first date of trial that his projected income would probably be about $100,000.00 for 2014. The court found his testimony to be credible regarding his income.
THE DEFENDANT'S INCOME AND EARNING CAPACITY
Defendant is currently unemployed. Prior to the marriage, Defendant worked full-time as a bank teller from 1980 to 1984, and as a receptionist answering telephones. During the marriage, Defendant was primarily a Homemaker except for sporadic periods of time, where she worked at the deli counter in Shop Rite, as a school monitor and sold Avon. While working at Shop Rite during 1998, Defendant injured her lower back and herniated a disc, requiring surgery. The discs were fused and held together by plates and screws. Several years later and after one more back surgery which removed two out of five discs from her spine, it was discovered that Defendant suffered from degenerative disc disease. She remained unemployed since and has been a Homemaker, taking care of all the cooking, cleaning and grocery shopping for the family and taking care of the parties two children.
Defendant testified that her two herniated discs still causes her pain in her neck, upper and lower back, elbow and runs into her fingers, thus causing her to be unable to sit or stand for any length of time. Additionally, she cannot push, pull or lift anything and suffers from anxiety, panic attacks as well as Type II diabetes. She is treated by several physicians and is going to physical therapy. Defendant applied for Social Security Disability Insurance benefits and was denied. She submitted proof that she did not qualify for disability benefits because she did not have enough work credits under Social Security; therefore, not entitled to Social Security benefits based on the application she filed.
PRE–DIVORCE STANDARD OF LIVING
When the parties were married in March, 1986, neither party had any assets. The parties resided in an apartment in Hackensack, New Jersey with their two children until the youngest child turned one years old. They left that apartment in 1991 owing the landlord $2,000.00 and moved to an apartment at Homestead Village in Warwick, New York. In 1995, the parties purchased their marital home in Wickham Village in Warwick, New York with no money down, via a Fannie Mae loan in the amount of $105,000.00. Although the home is titled in both names, the mortgage is held only in the name of the Plaintiff. The home was later refinanced and the current mortgage on the home is held by Ocwen in the amount of $165,000.00, payable at $1,804.69 per month. Plaintiff acknowledged that he had not paid several months on the mortgage. Defendant claims, "the last time I read, it was over $17,000.00 in arrears."
During the marriage, the Plaintiff earned a decent living yet the parties did not live well. The Plaintiff controlled the entire finances of the home and gave Defendant money for groceries for the family. Defendant states that Plaintiff barely supported his family's basic needs and if she needed anything, such as clothing or eyeglasses, she would pay for it from her birthday or Christmas money or her mother would pay for it. She admits that her standard of living despite Plaintiff's income was "poor." In need of money, Defendant claims that she took a job at the deli counter in Shop Rite for a year where she injured some discs to her spine and endured two back surgeries, causing her to no longer be able to work.
The parties resided in the home for 19 years and very little maintenance or repairs were done to the home. The Defendant testified that her house "should be condemned," with wall to wall carpeting that has never been replaced even though the parties have pets; leaks in the bathroom causing mold and buckling of the floor; linoleum floors are ripped; and water damage to both the floors and walls, resulting in several substantial aesthetic and structural problems. Plaintiff being the only wage earner, has not maintained the home.
Defendant argues that Plaintiff was a spendthrift for himself and fiscally irresponsible. She testified that "21 out of the 28 years of marriage, he went out every night after work," drank alcohol and smoked marijuana. She further testified that in 2005 she became aware of Plaintiff's marital affair by checking the phone bill, where phone calls were made to the same woman. She called their florist and found out that Plaintiff was giving flowers to that woman and when she reviewed the joint checking account statements, she saw that Plaintiff was going to restaurants. Plaintiff testified that he would go out to eat with friends and occasionally would buy his friends flowers too.
Plaintiff admits that he failed to file some years of income taxes and those that he did file with the State of New York, the State of New Jersey and the Federal Government, there are questions regarding what is owed based on the deductions submitted. Defendant testified that Plaintiff claimed numerous improper deductions without her input, causing the State of New York to intercept his Federal refund of $5,500.00 in 2012, all while he was not paying the mortgage timely. Defendant avers in her Statement of Proposed Disposition that the latest tax notices show the following taxes due to New York State: $7,894.00 in 2006, $5,712.87 in 2007, $2,703.34 in 2008 and $1,232.20 in 2010. The Defendant testified that she does not know what if any tax liabilities are owed for the following years for the State of New York, the State of New Jersey and the Federal government: 2009, 2011 and 2013. Plaintiff did not dispute any of Defendant's claims during his testimony, except that he was following the instructions of Turbo tax regarding his deductions in the years he did file.
Plaintiff further testified that he purchased two vehicles (2006 Dodge Ram 1500 Pickup truck and 2009 Dodge Challenger). Both cars are titled in Plaintiff's name, however, the 2009 Dodge Challenger, driven by Plaintiff is the only car which is paid off with loans out of his 401k account. Defendant/wife testified that she drives the 2006 Dodge Ram 1500 Pickup truck for which has a loan balance in the approximate amount of $15,000.00, with a monthly payment of $554.00. Defendant argues that Plaintiff drives a car that is owned free and clear from a finance loan because he paid it off from two loans he took out of his 401k account; however, admits that he is still paying the 401K loan for that vehicle at $410.00 per month The first loan was for a down payment deposit in the amount of $14,000.00 towards its purchase price of $26,000.00 and then two years prior to commencement of the action, he took out the second loan from his 401k to pay off the balance on that car loan.
Plaintiff also testified that he took out an additional $5,000.00 from his 401k account in January 2014, against the automatic stay provisions to pay the mortgage, two bills and legal fees for a criminal matter for the parties'son, leaving a balance on his 401K in the of approximate amount of $4,000.00. Plaintiff also purchased other vehicles titled in his name; a 2006 Yamaha Raptur ATV for in 2007 at $4,500.00 and a 1976 Chevrolet Nova, for which he claims they are worth $2,000.00 and $1,500.00, respectively. Defendant did not dispute Plaintiff's valuations on the latter two vehicles.
Plaintiff admitted during testimony that he has been the primary wage earner in the family and that Defendant was his dependant, that he has historically controlled the finances, that he pays for the family health insurance plan in the amount of $227.39 per week to Horizon Blue Cross/ Blue Shield of New Jersey and that he had about $9,000.00 left on his 401k at the commencement of the action in 2012. Defendant testified that Plaintiff "brings home" or nets $5,500.00 per month.
Prior to the commencement of the action in that same year, Defendant received an inheritance from her mother in the approximate amount of $250,000.00. She claims that she has always kept it separate in her name and that although Plaintiff asked her to pay all of his credit cards and both vehicles in his name, she did not because she needed the money to move on, especially because of her poor health. She has applied to Social Security Disability and has been denied benefits. She does not have another form of income.
Plaintiff did not provide his financials, an updated Statement of Net Worth, nor did he provide a Statement of Proposed Disposition, prior to trial. However, as a pro se litigant, this court reviewed his last incomplete Statement of Net Worth filed by his former counsel, dated April 10, 2013, in the court's record. It shows monthly expenses of $974.89 for mortgage, $1,075.00 for food, $125.00 for clothing, $10.00 for laundry, $650.00 for total insurance, $1,610.00 for unreimbursed medical expenses, $89.92 for household maintenance, $1,182.00 for automotive expenses, $554.00 for the 2006 Dodge Ram and $400.00 to repay the loan for the 2009 Dodge Challenger, recreational expenses in the amount of $310.00, and miscellaneous expenses in the amount of $281.16. Plaintiff's Net Worth including his current expenses was a negative Net Worth of $673.00. Certain expenses listed were inflated and not credible.
Defendant's Statement of Net Worth at trial on March 31, 2014 sets forth projected monthly expenses for when she moves out at $1,150.00 for housing, $340.00 for utilities, $600.00 for food and home entertainment, $50.00 for clothing, $10.00 for laundry, $850.00 for tenants, automotive and medical insurance, $1,727.29 unreimbursed medical, $250.00 for household maintenance, $100 domestic house cleaner, $173.00 for automotive expenses, $72.00 recreational expenses and $215.16 for miscellaneous expenses. Total monthly expenses for Defendant was also labeled to be determined because some figures were unknown. Defendant does not have income, however, she received an inheritance in or around March 2012 from her mother in the amount of $250,000.00 and it is held in a Bank of America account. Certain expenses listed were inflated and not credible.
EQUITABLE DISTRIBUTION ON CONSENT OF THE PARTIES
The issues presented before the court on the first date of trial were: a) equitable distribution; b) maintenance and duration; and c) marital debt. However, during Plaintiff's sworn testimony on the first day of trial on March 31, 2014, the parties agreed to the following equitable distribution on the record; to wit, 1) Marital Residence —Plaintiff will take full responsibility for the balance of the present mortgage on the former marital residence located at 7 Mountain View Drive, Warwick, New York, will modify the mortgage, place it under his name and hold Defendant harmless of that mortgage in its entirety. In exchange, the Defendant will sign over a Quit Claim Deed to Plaintiff, giving up all rights, title and interest to the real property and move out 90 days from the date of the divorce decree; 2) Income Taxes —Plaintiff will take full and sole responsibility for income taxes owed, both federal and state and for the states of New York and New Jersey, from the years 2006 until 2013 and will hold Defendant harmless for those tax years; 3) Some personal property —Plaintiff will give Defendant certain items of personal property and she will remove them from the home at the time of her vacatur; and 4) Financial Institution —Plaintiff will take full responsibility for the Wells Fargo Bank account that was closed due to an overdraft on that account in the amount of $1,200.00 plus fees incurred and hold Defendant harmless.
The following personal property were listed in a letter by Defendant, dated October 8, 2013: a washing machine, treadmill, couch and two recliners, bedroom television and VCR, the laptop, items in storage, her pets by the name of Paris, Giana and Mia. Additionally, various Christmas ornaments and decorations and small kitchen appliances.
ASSETS AND DEBTS TO BE CONSIDERED IN EQUITABLE DISTRIBUTION
On the second day of trial, July 14,2014, the court continued the trial despite Plaintiff's willful non-appearance. After granting a default on Plaintiff's Complaint, transferring Defendant's Exhibits A through E and resuming as an Inquest pursuant to her counterclaims, the court determined that the assets and debts to be considered in equitable distribution included the motor vehicles, various financial accounts including bank, credit card, retirement, and pensions.
DISCUSSION/ANALYSIS
EQUITABLE DISTRIBUTION
Equitable distribution law is premised on the theory 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] ; Fields v. Fields, 15 N.Y.3d 158 [2010].) "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 nonenumerated services to the joint enterprise, such as homemaking, raising children, and providing emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home." (Price v. Price, 69 N.Y.2d 8, 15 [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, 468 N.Y.S.2d 482 [2d 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 v. Conner, 97 A.D.2d 88, 96, 468 N.Y.S.2d 482 [2d Dept 1983] [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." (Michaelessi v. Michaelessi, 59 A.D.3d 688, 689, 874 N.Y.S.2d 207 [2d Dept 2009].) "In determining equitable distribution, the trial court is directed to consider statutory factors, including the income and property of each party at the time of the marriage, and at the time of the commencement of the divorce action, the duration of the marriage, the age and health of the parties, any maintenance award, and the nontitled spouse's direct or indirect contributions to the marriage, including services as a spouse, parent, wage earner and homemaker." (Loria v. Loria, 46 A.D.3d 768, 770, 848 N.Y.S.2d 681 [2d Dept 2007] ; Domestic Relations Law § 236[B][5][d][6].) Pursuant to Domestic Relations Law § 236B(5)(d), the court shall consider the following 13 factors in making an equitable distribution of the marital property:
1. Income and property;
2. Duration of the marriage and age and health of the parties;
3. Need of custodial parent to occupy or own the marital residence;
4. The loss of inheritance and pension rights;
5. An award of maintenance;
6. Direct and indirect contributions;
7. Liquid or non-liquid character of the property;
8. Future financial circumstances of the parties;
9. The difficulty of valuing marital assets;
10. The tax consequences to each party;
11. The wasteful dissipation of assets;
12. Transfer in contemplation of action;
13. Any other factors.
Marital property is defined in Domestic Relations Law § 236 B(1)(c) as "all property acquired by either or both spouses during the marriage ..." 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].) The burden rests with the titled spouse to rebut the presumption of marital property. (DeJesus v. DeJesus, 90 N.Y.2d 643, 652 [1997].) "[M]arital property should be ‘construed broadly in order to give effect to the economic partnership concept of the marriage relationship." ’ (Fields v. Fields, 15 N.Y.3d 158 [2010].) "By contrast, separate property-denoted as an exception to marital property-should be construed ‘narrowly." ’ (Id. )
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 § 236B[1][d] ). 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].) Where a party co-mingles his or her separate funds with marital funds, they become transmuted into marital property subject to equitable distribution. (Lynch v. King, 284 A.D.2d 309, 310, 725 N.Y.S.2d 391 [2d Dept 2001] ). "Exempting from equitable distribution ‘separate property’ which one of the spouses owned before the marriage or which was later acquired by gift or inheritance is consistent with the statutory rationale; such property cannot be considered to have been the product of the marital enterprise. (Brennan v. Brennan, 103 A.D.2d 48, 52, 479 N.Y.S.2d 877 [3d Dept 1984] ).
This court will consider the fairness of the order with respect to the economic situations of both parties. Consequently, the actual financial condition of the recipient spouse is important.Guided by the principles of law set forth above, the statutory factors, and the equities of the parties' circumstances, the Court makes the following equitable distribution of the marital property.
SEPARATE PROPERTY
Defendant testified that her mother passed away sometime in 2011 and she received an inheritance in the amount of about $250,000.00. She further testified that she maintained it solely in her name and has never put any of it in Plaintiff's name. Plaintiff testified that he paid for her to receive the distribution of her bequest, but did not object that she has always maintained it in her own name. Therefore, based on the testimony of the parties, the inheritance received by Defendant is her separate property.
EQUITABLE DISTRIBUTION
The only assets and debts to be considered in equitable distribution outside of what has already been consented to above by the parties include the motor vehicles and various financial accounts (credit card, and retirement benefits) and attorneys fees.
VEHICLES
The parties own the following four motor vehicles, all in Plaintiff's name: 2006 Dodge Ram Pickup, 2009 Dodge Challenger, 2006 Yamaha Raptur ATV, and a 1976 Chevrolet Nova. Although both parties do not supply values for the Dodge Ram Pickup nor the Dodge Challenger, there is testimony by the Plaintiff that $15,000.00 is the loan balance for the 2006 Dodge Ram Pickup and the amount owed on Plaintiff's 401K loan on the 2009 Dodge Challenger is approximately $18,000.00. He further testified that he alone owes more money for both cars than they are worth. Plaintiff does provide approximate values for the other two vehicles; to wit, $2,000.00 for the ATV and $1,500.00 for the Chevy Nova. Defendant did not provide any values for the vehicles. Defendant seeks the following regarding the equitable distribution of the vehicles: a lump sum payment of $15,000.00 to replace the 2006 Dodge Ram Pickup that she drives, that the court award all of the vehicles to Plaintiff and make him solely responsible for the two loans. This request is denied. However, the Court has considered the plaintiff's automobile expenses as set forth in her Statement of Net Worth in determining Defendant's maintenance award below.
The Court awards Defendant the car that she drives and she will be responsible for the loan amount ($15,000.00) on that vehicle. Within two weeks of the date of this decision, Plaintiff is directed to transfer the title to that vehicle to Defendant. Defendant shall pay the loan on that vehicle within 30 days after receipt of title from her own separate funds. The Court awards the remaining vehicles to Plaintiff. Plaintiff shall be solely responsible for the debt left on any of those vehicles.
CREDIT CARD DEBT
During the first day of trial, Plaintiff testified that he is deep in debt and has a lot of credit card debt that he cannot pay. However, he never presented any testimony or submitted any evidentiary proof of the amount of the debt. Defendant on the other hand, testified as to a Capital One credit card account that she used for groceries "in the early 2,000's", at least ten years prior to the commencement of the proceedings and is seeking reimbursement in the amount of $4,300.00.
Defendant further testified and presented proof that she satisfied a judgment in her name on April 15, 2013, post commencement (Exhibit N) in the amount of $2,991.22 and testified that it was for a Merge Mastercard that she used for groceries during the marriage. Defendant argued that Plaintiff was the primary wage earner and because he did not pay those bills, a judgment was entered against her and payment to satisfy those amounts were taken from her inheritance. The court has heard and considered the parties arguments and directs that each party shall, therefore, be solely responsible for any credit card debts in his or her name.
CHRYSLER JEEP DODGE—401K (Payable to Plaintiff)
This account through Great West Retirement Services had a balance of approximately $12,270.05 on July 30, 2012, immediately prior to the commencement of this action for divorce.Defendant testified that Plaintiff has made several loans against his 401k and that his most recent withdrawal of $5,100.00 in January, 2014 from his 401k, post commencement of this action, was without her knowledge as to its use. She requests that this court award her the balance of Plaintiff's 401k as Plaintiff has dissipated that marital asset without her consent. Plaintiff argued that he took out the additional amount from his 401k account in January 2014, against the automatic stay provisions to pay the mortgage, two bills and legal fees for a criminal matter for the parties'son in the amount of $1,000.00, leaving a balance on his 401K in the of approximate amount of $4,000 .00. The court finds Plaintiff's testimony credible as to only those expenditures; however, finds Defendant's testimony as credible in that Plaintiff took loans against his 401k without her consent in the near past. In light of the circumstances, and in light of the reduced amount of the 401k, the marital portion that is left on the balance of the account as of February 1, 2014, shall be distributed 100% to Defendant. Any costs or fees associated with the transfer of those funds shall be allocated to the Plaintiff/ husband.
MAINTENANCE
The Defendant/wife seeks non-durational spousal maintenance in the amount of $54,000.00 per year ($4,500.00 per month), as an award. Plaintiff testified that he is "willing to pay maintenance ... I'm willing to pay her medical." (Transcript p. 7, lines 24–25). However, he argues that "they want too much.... I can't afford it." Defendant testified that he has been paying Defendant the amount of $400.00 per week to buy groceries, pursuant to an order of this Court, dated January 31, 2014.
In determining the appropriate amount and duration of maintenance, the court is required to consider the following factors as enumerated in Domestic Relations Law § 236 B(6)(a):
1. The income and property of the respective parties including marital property distributed;
2. The duration of the marriage and the age and health of both parties;
3. The present and future earning capacity of both parties;
4. The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefore;
5. Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment or career opportunities;
6. The presence of children of the marriage in the respective homes of the parties;
7. The tax consequences to each party;
8. Contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party;
9. Wasteful dissipation of marital property;
10. Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
11. Any other factor(s).
"The amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts. The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting." (Kilkenny v. Kilkenny, 54 A.D.3d 816, 820, 863 N.Y.S.2d 807 [2d Dept 2006].) "In fixing the amount of a maintenance award, a court must consider the financial circumstances of both parties, including their reasonable needs and means, the payor spouse's present and anticipated income, the benefitting spouse's present and future earning capacity, and both parties' standard of living." (Morrissey v. Morrissey, 259 A.D.2d 472–473, 686 N.Y.S.2d 71 [2d Dept 1999].) The main purpose of a maintenance award is to give the nonmonied spouse economic independence. (Giokas v. Giokas, 73 A.D.3d 688, 900 N.Y.S.2d 370 [2d Dept 2010].) An important factor to be considered in awarding maintenance is the distribution of marital property. (Wortman v. Wortman, 11 A.D.3d 604, 783 N.Y.S.2d 631 [2d Dept 2004].)
Factors to be considered in awarding maintenance are any "contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party." (Domestic Relations Law § 236B[6][a][8]. Included in the enumerated factors, the Court must consider as set forth above, the parties' pre-divorce standard of living is an essential component of evaluating and properly determining the duration and amount of the maintenance award to be accorded a spouse. (Hartog v. Hartog, 85 N.Y.2d 36, 50–51 [1995].) Although the parties' pre-separation standard of living is a factor, "a pre-separation ‘high-life’ standard of living does not guarantee a per se entitlement to an award of lifetime maintenance." (Chalif v. Chalif, 298 A.D.2d 348, 751 N.Y.S.2d 197 [2d Dept 2002].) "Rather, the court must consider the reasonable needs of the recipient spouse and the pre-separation standard of living in the context of the other factors." (Id. )
"Lifetime maintenance is appropriate only where a spouse is incapable of future self-support or has clearly subordinated a career to act as homemaker or parent ... has no obvious skills or training ... or is mentally or physically ill." (See Sivigny v. Sivigny, 213 A.D.2d 243, 624 N.Y.S.2d 120 [1st Dept 1995].) Here, Defendant/wife argues that Plaintiff/husband was always the primary wage earner, that she was a homemaker and provided all of the daily needs of their two children and the house, while Plaintiff worked 12 to 13 hours per day, including Saturdays. Defendant further claims she only worked one year during their 26 year marriage and became injured while on the job and those injuries and surgeries that followed prevent her from holding a job. The Plaintiff admits to working that many hours per day and up to 80 hours per week, and states that Defendant should have filed a worker's compensation claim with her employer at the time. He testified that she was fine for all these years until she obtained counsel.
The Plaintiff has the income and earning capacity to pay maintenance to the Defendant both at present and for the foreseeable future. (See Callen v. Callen, 287 A.D.2d 818,820 [3d Dept 2001].) In fixing the amount of a maintenance award, the Court must consider both the payor spouse's present and anticipated income. (Morrissey v. Morrissey, 259 A.D.2d 472,473 [2d Dept 1999].) The amount and duration of the award should reflect the parties' respective educational backgrounds and financial positions, and should be appropriately structured to encourage the wife to become self-supporting. (See Acosta v. Acosta, 301A.D.2d at 497.)
The parties were married for 26 years upon the filing of the divorce action. The Plaintiff was 57 years old at time of trial and is generally in good health. He complained of occasional kidney stones and a surgery a year before trial, to remove them. Plaintiff further testified without submitting any proof that he was diagnosed with skin cancer in his legs. When questioned as to the stage he was in and what kind of cancer, he did not know. Instead he testified that it was early in the diagnosis. The Plaintiff has been paying some support to the Defendant in the amount of $400.00 per paycheck, since the Order of this Court dated, January, 2014 to assist her financially while they continued to live together. Defendant is 54 years old and she argues that she has medical issues that render her unemployable. However, Defendant also claims that she alone provided for the daily needs of the children until emancipation and took care of the home by cooking, cleaning and buying grocery herself.
The Court in making a determination of maintenance, is considering the plaintiff's testimony of her lack of education, lack of employment background or skills and her claimed medical issues, which the Court found credible, although does not find completely credible that she is unemployable. The court is also taking note of her sizeable inheritance ($250,000.00) for which she testified that she will use to help fund her relocation to North Carolina and her purchase of a home and furnishings. This fact is important because her need for the maintenance may be lessened or alleviated.
Additionally, the Court also notes that Plaintiff has taken a large portion of the marital debt, i.e., the mortgage on the real property that is in grave disrepair and all the income tax debt spreading from 2006 until 2013. Moreover, that Defendant will be eligible to receive social security benefits through Plaintiff's work credits at the age of her retirement. Due to the foregoing, the Court does not find that non-durational maintenance is warranted in this case.The statutory factors include the parties' pre-divorce standard of living, which is an essential component in evaluating and properly determining the duration and amount of the maintenance award to be accorded a spouse. (Hartog v. Hartog, 85 N.Y.2d 36, 50–51 [1995].) Defendant testified that the house is in grave disrepair and "should be condemned, to be honest .... there is carpenter ants, mildew, mold." Additionally there was a hole in the bathroom floor, among other disrepair. Defendant further testified that she has lived like that for years, her and the children's daily needs were paid for via credit cards, the bills were always paid late, they seldom went on vacation and the her assessment of the finances of the marriage were "poor" (Transcript p. 17, Lines 13 to 23). Defendant argues that Plaintiff was a spendthrift throughout the marriage and while he went out, she stayed home.
Considering the statutory factors as applied to the equities presented here, the Court awards to the Defendant durational maintenance in the amount of $24,000.00 per year ($2,000.00 per month) for a period of eleven years, beginning on the first of the month following this Decision and Order and continuing the first of every month thereafter. Unless otherwise agreed to by the parties in writing, the defendant shall make the maintenance payment payable to the defendant at her residence or any other mailing address she designates in writing to the defendant by regular and certified mail, return receipt requested. The maintenance payments shall be taxable to the plaintiff, as recipient, and deductible to the defendant, as payor. The maintenance award shall terminate at the end of May 31, 2027, or upon the Defendant's remarriage or the death of either party, whichever occurs earlier. (See Scheer v. Scheer, 130 A.D.2d 479, 480–481, 515 N.Y.S.2d 61 [2d Dept 1987] ; see also Sidhu v. Sidhu, 304 A.D.2d 816, 817, 759 N.Y.S.2d 134 [2d Dept 2003].) This maintenance award is intended to take Defendant to the age of 66 so that she may collect Social Security thereafter. Plaintiff is directed to purchase term life insurance for a 15 year term for the purpose of insuring Defendants maintenance award. Plaintiff shall send proof of the active term life insurance annually, beginning on May 1, 2016. The Court has considered Defendant's need for medical insurance, post divorce and included the cost in Defendant's maintenance award.
COUNSEL FEES
Generally, a hearing must be held and documentation submitted to support an award of attorney's fees. Counsel fees generally may not be denied without affording the requesting party an opportunity to present proof as to the reasonable value of the services (Scheinkman, New York Law of Domestic Relations § 19:5 [12 West's N.Y. Prac Series 2011] ). "[A] party resisting a counsel fee application is entitled to an evidentiary hearing as to the extent and value of the attorney's services" (Scheinkman, West's McKinney's Forms Matrimonial and Family Law § 19:12 [2011] ). Here, the court having ordered a directed verdict will now consider the merits of the wife's application for counsel fees.
"An award of counsel fees pursuant to Domestic Relations Law § 237(a), is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case" (Prichep v. Prichep, 52 A.D.3d 61, 64, 858 N.Y.S.2d 667 ; Carr–Harris v. Carr Harris, 98 A.D.3d 548, 949 N.Y.S.2d 707 [2d Dept 2012] ). In other words, in determining the application, the court will consider the financial circumstances of both parties, with all other circumstances of the case, including the relative merit of the parties' positions, "their ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances" (Grumet v. Grumet, 37 A.D.3d 534, 829 N.Y.S.2d 682 [2d Dept 2007] ).
The intent of the provision is to create a more level playing field associated with each party's ability to pay counsel fees, and "to make sure that marital litigation is shaped not by the power of the bankroll but by the power of the evidence" (Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, DRL C237:1). The amount that a party receives in equitable distribution is relevant to the issue of counsel fees (Morrongiello v. Paulsen, 195 A.D.2d 594, 601 N.Y.S.2d 121 [2d Dept 1993] ). A court may also take into consideration a party's large distributive award and possession of substantial assets which are sufficient to enable that party to pay litigation expenses, especially if after an equitable distribution award the parties financial condition is fairly similar (Grumet v. Grumet, 37 A.D.3d 534, 829 N.Y.S.2d 682 [2d Dept 2007] ; Chase v. Chase, 208 A.D.2d 883, 618 N.Y.S.2d 94[2d Dept 1994] ). The court may consider a party's superior earning power and whether a party engaged in conduct or tactics which unnecessarily prolonged the litigation resulting in the other party incurring otherwise unnecessary legal fees (Nee v. Nee, 240 A.D.2d 478, 658 N.Y.S.2d 440 [2d Dept 1997] ; Chamberlain v. Chamberlain, 24 A.D.3d 589, 808 N.Y.S.2d 352 [2d Dept 2005] ; Powers v. Wilson, 56 AD3d 639,641 [2d Dept 2008] ). In considering a counsel fee application, the trial court must review "the difficulty of the questions involved, the skill required to handle the case, specifics as to the time and labor required, the attorney's experience, ability and reputation, and the customary fee charged for similar services" (Sand v. Lammers, 150 A.D.2d 355, 540 N.Y.S.2d 876 [2d Dept 1989] ).
"Matrimonial litigation is New York is expensive. It has been repeatedly recognized that in a fiercely contested case, the costs of the litigation can consume the marital estate of even an affluent couple" (Charpie v. Charpie, 271 A.D.2d 169, 170–171, 710 N.Y.S.2d 363 [2d Dept 2000] ). "An award of an attorney's fee is designed to redress the economic disparity between the spouses, it is not intended to address a party's decision to proceed to trial rather than agreed to a settlement" (Comstock v. Comstock, 1 A.D.3d 307, 766 N.Y.S.2d 220 [2d Dept 2003], citing O'Shea v. O'Shea, 93 N.Y.2d 187 [1999] ).
Defendant/ wife testified that she is seeking counsel fees due to the husband's superior earning capacity. She further testified that she has been primarily a homemaker for the majority of their marriage, did not work due to her disabilities, did not have more than a GED education and is unable to work. Plaintiff also admits during trial that Defendant is his "dependant" and that he has been the primary wage earner throughout the marriage. Moreover, the record reflects that the husband's delays to timely comply with financial discovery requests has delayed litigation. Due to the husband's failure to cooperate throughout the litigation process in this matter, including but not limited to his willful failure to comply with this Court's orders, and to submit an updated financial disclosure prior to trial, including willfully failing to appear for the second day of trial has placed the Defendant/wife at a financial disadvantage. The court is also taking into consideration the fact that Defendant has received $250,000.00 in an inheritance award from her mother and her plans to use a majority of that money to begin a new life on her own.
The wife seeks $17,244.55 in counsel fees and disbursements incurred in this divorce action. Due to the husband's misconduct during these entire proceedings, and his willful and complete failure to comply with court orders, his lack of timely financial disclosure, including failure to produce a meaningful statement of net worth, the Court finds that he has placed the Defendant in an economic disadvantage, and the court will consider the wife's application for counsel fees on the testimony and evidence provided. The wife's counsel properly submitted her retainer agreement and time records and set forth appropriate evidence of the services provided in this matrimonial litigation (Cervone v. Cervone, 74 A.D.3d 1268, 904 N.Y.S.2d 481 [2d Dept 2010] ). The Defendant paid a $7,500.00 initial retainer, and the Defendant's counsel has a billing rate of $375.00 per hour. The wife testified that she was provided with legal billing statements from her counsel.
The record shows that the wife used her inheritance money to pay her counsel fees. The wife has paid counsel fees in the amount of $17,438.53 with a credit of $193.00, over a two year period of representation. The court also reviewed the value of counsel's services, the time devoted to the action, the nature of the services, the complexity of the matters and the results achieved. In light of the husband's obstructionist tactics, which delayed the proceedings and increased the legal fees incurred by the wife, the court awards the wife counsel fees in the amount of $8,000.00. Under these circumstances, the court believes that this is an appropriate case to award counsel fees to the wife (Ropisgliosi v. Abbate, 31 A.D.3d 648, 819 N.Y.S.2d 285 [2d Dept 2006] ). The court deems this award of counsel fees and expenses to be reasonable under these circumstances (Theroux v. Theroux, 145 A.D.2d 625, 536 N.Y.S.2d 151 [2d Dept 1988] ). Defendant is directed to submit a judgment in the amount of $8,000.00 to the court within thirty days following this decision. Defendant shall thereafter take the necessary steps to collect upon the judgment through income execution.
CONCLUSION
The court has considered the additional contentions of the parties, not specifically mentioned herein. To the extent any relief requested by either party was not addressed by the Court, it is hereby denied.
Defendant's attorney shall settle the judgment in accordance with this Decision and Order within twenty (20) days of its service upon Plaintiff with notice of entry.
This constitutes the Decision and Order of this Court.