Opinion
2014-07-24
Virginia ALVARADO, Plaintiff, v. Raymond A. ALVARADO, Defendant.
Eric Gansberg Esq., Staten Island, attorney for plaintiff. Bruce Behrins Esq., Staten Island, attorney for defendant.
Eric Gansberg Esq., Staten Island, attorney for plaintiff. Bruce Behrins Esq., Staten Island, attorney for defendant.
CATHERINE M. DiDOMENICO, J.
Upon the foregoing cited papers, the Decision and Order on this Application is as follows:
By Notice of Motion filed April 9, 2014 Defendant Husband seeks an Order: (1) vacating Plaintiff Wife's jury demand; (2) vacating Wife's demand for a Verified Bill of Particulars; (3) dismissing the affirmative defenses raised by Wife in her Reply to Husband's Counterclaim; (4) granting summary judgment on the issue of grounds and holding the judgment in abeyance until the issues of maintenance, equitable distribution, counsel fees, costs, and disbursements of this action have been resolved; (5) awarding Husband counsel fees; and (6) sanctioning Wife for delaying the disposition of this action.
By Jury Demand filed March 21, 2014 Wife seeks a jury trial on the issue of grounds. By Notice of Cross Motion filed June 3, 2014 Wife moves for an Order: (1) denying Husband's requested relief; (2) awarding Wife counsel fees in relation to the present motion; and (3) sanctioning Husband for bringing a frivolous motion.
Summary Judgment
Husband moves for summary judgment on the ground that the parties' marriage has broken down irretrievably for a period in excess of six months. Husband further seeks to hold the judgment inabeyance until the issues of maintenance, equitable distribution, counsel fees, costs, and disbursements have been resolved as required by statute. See DRL § 170(7).
Summary judgment may only be granted where there are no material or triable issues of fact. See Jablonski v. Rapalje, 14 A.D.3d 484, 788 N.Y.S.2d 158 (2d Dept.2005); See also CPLR § 3212. When determining a Motion for Summary Judgment the evidence must be viewed in a light most favorable to the opposing party. See Corvino v. Mount Pleasant Cent. Sch. Dist., 305 A.D.2d 364, 757 N.Y.S.2d 896 (2d Dept.2003). Summary judgment may be granted on the issue of grounds for a divorce. See Wiecek v. Wiecek, 104 A.D.2d 935, 480 N.Y.S.2d 553 (2d Dept.1984).
As this action was commenced after October 12, 2010, the Court may grant a judgment of divorce if one party states under oath that the marriage has broken down irretrievably for a period of at least six months. See DRL § 170(7).
No judgment of divorce may be granted under this ground until the ancillary issues of equitable distribution, child custody, visitation, counsel fees and expert fees have been resolved by the parties or by a judgment of divorce. See DRL § 170(7).
The legislature enacted DRL § 170(7) as a no-fault ground for divorce to lessen disputes between the parties, reduce litigation costs, and “promote judicial economy by obviating the necessity of a trial on the issue of fault”. See Rinzler v. Rinzler, 97 A.D.3d 215, 947 N.Y.S.2d 844 (3rd Dept.2012).
Here, Husband makes a sworn statement that the marriage has broken down irretrievably for a period of at least six months in his Affidavit in Support of the present motion, and in two separate Orders of this Court dated September 14, 2012. Husband further states in his Affidavit that there is “absolutely no chance of a reconciliation” and that the marriage has been over for years. Moreover, in Husband's Verified Answer and Counterclaim dated November 15, 2013 Husband swears that the marriage has been irretrievably broken since October 1, 2011. Under the statute, one party's sworn statement that the marriage has broken down irretrievably for a period of six months is sufficient to establish grounds. See Townes v. Coker, 35 Misc.3d 543, 943 N.Y.S.2d 823 (Sup.Ct., Nassau County 2012); See also Filstein v. Bromberg, 36 Misc. 3d 404, 944 N.Y.S.2d 692 (Sup.Ct., New York County 2012); See also DRL § 170(7).
While Wife claims that the marriage has not broken down irretrievably, and argues that this raises a triable question of fact, the Court hereby determines that Wife is judicially estopped from making this claim. The doctrine of judicial estoppel prevents a party from taking an adverse or inconsistent position on an issue simply because their interests have changed. See
Karasik v. Bird, 104 A.D.2d 758, 480 N.Y.S.2d 491 (1st Dept.1984); See also Anonymous v. Anonymous, 137 A.D.2d 739, 524 N.Y.S.2d 823 (2d Dept.1988); See also Tilles Inv. Co. v. Town of Oyster Bay, 207 A.D.2d 393, 615 N.Y.S.2d 895 (2d Dept.1994). Judicial estoppel is intended to avoid abuse of the judicial system by preventing a party from obtaining a benefit by taking one position and then asserting a contrary position in the same, or a subsequent proceeding. See D & L Holdings, LLC v. RCG Goldman Co. LLC., 287 A.D.2d 65, 734 N.Y.S.2d 25 (2d Dept.2001); See also Maas v. Cornell Univ., 253 A.D.2d 1, 683 N.Y.S.2d 634 (3rd Dept.1999).
Wife claims that the marriage has not broken down irretrievably for a period of six months. In support of this position, Wife argues that she is a religious Catholic and is opposed to divorce. However, in Wife's Verified Complaint dated June 26, 2012, Wife swore that the parties' marriage had broken down irretrievably for a period of at least six months prior to the commencement of the action. This sworn to admission was repeated and codified in two separate Consent Orders of this Court dated September 14, 2012. The first of these Orders, the Preliminary Conference Order, states that the issue of grounds is resolved in Wife's favor under DRL § 170(7). In addition, on that date, the parties' entered into a separate “Grounds Order” signed by both parties, which reaffirmed that the issue of grounds was resolved with the understanding that a judgment could not be issued until the resolution of maintenance, equitable distribution and counsel fees. The Court fully allocated the parties, with counsel present, on the contents of these Orders.
Wife argues that she erred when filing for divorce because she was emotionally distressed and states that she now believes that her marriage is not irretrievably broken. However, Wife only came to this realization in October of 2013. By that time, Wife had already stipulated to the grounds for a divorce in the above referenced Orders. Husband and Wife both relied upon these Orders for a period of at least 12 months while the case was litigated. Both parties proceeded under the belief that the grounds for divorce were not being contested. Wife's position in this regard only changed as of her Motion dated October 16, 2013, which sought to withdraw her action for divorce. Wife's application was granted, with the caveat that Husband was afforded an opportunity to amend his Answer to include a Counterclaim for divorce. Husband has consistently argued that Wife's actions throughout this matter have been calculated to delay the proceeding as Husband is not in good health. Husband argues that Wife's demand for a jury trial is nothing more than another delay tactic.
It is undisputed that Husband has sworn under oath, on at least three occasions, that the parties' marriage has broken down irretrievably, which complies with the requirements of DRL § 170(7). Wife agreed with this position from the commencement of the action till she sought to withdraw in October of 2013. To the extent that Wife now attempts to raise a question of fact regarding the status of their marriage, she is hereby judicially estopped from doing so. See Crespo v. Crespo, 309 A.D.2d 727, 765 N.Y.S.2d 59 (2d Dept.2003); See also, Peterson v. Goldberg, 180 A.D.2d 260, 585 N.Y.S.2d 439 (2d Dept.1992).
Accordingly, Husband's Motion for Summary Judgment is hereby granted. However, the judgment shall be held in abeyance until the issues of maintenance, equitable distribution, counsel fees, costs, and disbursements of this action have been resolved. See Charap v. Willett, 84 A.D.3d 1000, 924 N.Y.S.2d 433 (2d Dept.2011); See also, Minkow v. Metelka, 46 A.D.3d 864, 848 N.Y.S.2d 706 (2d Dept.2007).
Verified Bill of Particulars
Husband makes an application to vacate Wife's Demand for a Verified Bill of Particulars. In light of this Court's decision granting summary judgment, Wife's request for a Verified Bill of Particulars is moot. See Sevenson Environmental Services, Inc. v. New York State Thruway Authority, 149 Misc.2d 268, 561 N.Y.S.2d 523 (N.Y.Ct.Cl.1990); See also, Garnett v. Petri, 64 A.D.3d 749, 882 N.Y.S.2d 657 (2d Dept.2009). Thus, Wife's request for a Verified Bill of Particulars is denied.
Counsel Fees
Husband seeks an award of counsel fees in the amount of $4,500. Wife opposes Husband's application and cross moves for an award of counsel fees. In support of Husband's application he cites DRL § 237, which provides redress to the non-monied spouse in a divorce action. This Court, in its previous Decision and Order dated August 5, 2013 determined that Husband is the monied spouse. Since that date, Husband has not provided any documentation to show that financial status of the parties has changed. Accordingly, Husband's application under DRL § 237 is hereby denied.
Husband further argues that Wife's actions are frivolous and are intended to unnecessarily delay this action. Husband seeks counsel fees as a sanction for frivolous conduct. See 22 NYCRR § 130–1.1. While the Court does not agree with Wife's position, her applications do not rise to the level of being frivolous. Therefore, Husband's counsel fee application is denied.
In opposition to Husband's application for counsel fees, Wife requests reciprocal counsel fees relating to this motion. In doing so Wife cites the economic discrepancy between the parties. Wife argues that the Court must look at the financial circumstances of the parties when making its determination. While Wife does not explicitly indicate the statue she relies upon when requesting counsel fees, her application appears to have been made under DRL '237. Wife's attorney approximates that he has spend 21.5 hours in relation to this Motion at a rate of $400 per hour, which calculates to $8,600.
Regardless of whether Wife has made a sufficient showing to support an award of interim counsel fees, neither Wife, nor her counsel have provided adequate documentation to show the nature of the legal services rendered. “Thus, there is insufficient evidence to support an award for outstanding fees already incurred ...” See Mimran v. Mimran, 83 A.D.3d 550, 922 N.Y.S.2d 27 (1st Dept.2011). While Wife's attorney provides a retainer agreement, this document alone is insufficient to obtain counsel fees. See Barson v. Barson, 32 A.D.3d 872, 821 N.Y.S.2d 237 (2d Dept.2006). In Wife's
Notice of Cross Motion filed June 3, 2013 Wife's attorney simply provides an approximation of time spent in relation to this Motion. In order to receive an award of counsel fees there must be sufficient documentation in the form of time records, including the time expended relative to each service. See Barson v. Barson, 32 A.D.3d 872, 821 N.Y.S.2d 237 (2d Dept.2006); See also, Darvas v. Darvas, 242 A.D.2d 554, 662 N.Y.S.2d 87 (2d Dept.1997). Counsel's affirmation in support of Wife's application, without supporting billing documentation, is insufficient to meet this burden. See Reynolds v. Reynolds, 300 A.D.2d 645, 753 N.Y.S.2d 106 (2d Dept.2002). Therefore, Wife's application for counsel fees is denied without prejudice to renew upon a proper showing at or before trial. Wife further claims that Husband's motion is frivolous. Wife's reciprocal request for counsel fees is hereby denied as Husband's motion is not frivolous. See 22 NYCRR § 130–1.1.
Affirmative Defenses
Husband makes an application to dismiss the affirmative defenses raised by Wife's in her response to Husband's Counterclaim. Husband's application to dismiss is hereby denied, all affirmative defenses raised by Wife will be addressed at trial, to the extent that they are not mooted by the Court's decision herein.
Conclusion
For the detailed reasons set forth above, Husband's Motion for Summary Judgment is granted. Husband's application requesting an Order to Vacate Wife's demand for a Verified Bill of Particulars is hereby granted. Husband's request for counsel fees is denied. Wife's application for counsel fees is denied without prejudice. All affirmative defenses raised by Wife will be addressed at trial.
All issues not decided herein are hereby referred to trial.
The parties are hereby directed to appear for trial commencing September 15, 2014 at 9:30 A.M. Counsel are hereby directed to provide all pre trial documents to the Court before that date, to the extent that these documents have not previously been filed.
This constitutes the Decision and Order of the Court.