Opinion
XXXXX/12
02-24-2016
BC, Plaintiff, v. RC, Defendant.
Plaintiff was represented by Van Leer & Greenberg; Defendant was represented by Michael Lamm, Esq.
Plaintiff was represented by Van Leer & Greenberg; Defendant was represented by Michael Lamm, Esq. Rachel A. Adams, J.
Plaintiff (Wife) commenced this divorce action on May 8, 2012. On May 15, 2012, Defendant (Husband) filed an O-petition against the Wife and the parties' son in Kings County Family Court. Thereafter, on May 31, 2012, prior to the parties' return date in Family Court, the Wife filed an order to show cause before this Court, requesting, inter alia, that the O-petition be consolidated with the matrimonial action, a temporary order of protection, and exclusive use and occupancy of the marital residence. On May 31, 2012, Judge Sunshine, on Judge Adams' behalf, issued a temporary order of protection against the Husband and in favor of the Wife.
The parties appeared for a preliminary conference and the Wife's order to show cause on June 19, 2012 at which time the temporary order of protection was extended to July 2, 2012, and the Court consolidated the Family Court petition. Thereafter, the temporary order of protection in favor of the Wife was extended to July 23, 2012 and the matter was scheduled for a hearing before Hon. Rosalyn Richter on that date. Also pending and referred to the hearing was the Husband's cross motion for exclusive use and occupancy of the marital residence.
In the summer of 2012, Judge Richter was accepting limited hearing assignments from the trial court.
The parties settled the open issues before Judge Richter, who spread the parties' agreement on the record on July 23, 2012 the transcript of which, upon counsel's stipulation, this Court so ordered (see, order dated August 27, 2012). By agreement: (1) in resolution of the Wife's request for an order or protection and that portion of the Husband's O-petition seeking an order of protection against the Wife, a final order of protection was issued in favor of the Wife to expire on September 4, 2012 ; (2) the Wife would relocate to Virginia, would not be returning to the marital residence and could retrieve personal belongings from the marital home; (4) the Husband would pay to the Wife from an annuity $50,000 within ten days and an additional $50,000 by December 1, 2012, the tax penalty for which would be jointly shared; and (5) the payment and tax consequences are subject to reallocation by the Court or by agreement of the parties.Thereafter, the discovery proceeded before this Court and the trial in this action commenced in November 2014.
That portion of the Husband's O-petition against the son remained in Family Court and was not consolidated with the within action.
STIPULATED FACTS
The trial took place on November 6, 2014, November 13, 2014, November 17, 2014, November 20, 2014 and March 12, 2015. Thereafter the trial was adjourned for the submission of written summations which were received on June 1, 2015 after which the matter was marked decision reserved.
On the first day of trial, the parties submitted a stipulation of facts for purposes of trial, which consists of the following:
Background and History
The parties were married on March 23, 1968, and have been married for forty-six years.
This action for divorce and ancillary relief was commenced by the Plaintiff on May 8, 2012, by the filing of a Summons and Complaint in the Office of the County Clerk of Kings County, and the purchase of an index number.
The parties have one child, DC, age 46.
DC is a retired NYPD Detective and now owns and operates a private investigation and security business.
Both parties worked from 1968 until their respective retirements.
Both parties were employed as W-2 employees from 1968 until they retired.
The Plaintiff moved out of the marital residence on our about March 15th or 16th 2012.
It is alleged by the Plaintiff that the Defendant engaged in cruel and inhumane treatment, causing her to be in fear for her personal safety and well-being, and which caused her involuntary relocation from the marital residence.
The Defendant denies such cruel and inhumane treatment.
Presently, the Plaintiff lives in a rented apartment in Brooklyn, New York.
Plaintiff's monthly rent is $2,100 per month.
The Plaintiff is currently 71 years old.
The Defendant is currently 74 years old.
The Plaintiff claims that during the course of the parties' marriage the parties' joint income was used to pay for all of their individual and joint expenses. The Defendant claims that during the course of the parties' marriage a substantial portion of his separate income was used to pay for joint and individual expenses.
Currently, the parties have no debt, or any such debt is otherwise nominal in value and therefore reimbursement is not sought in this action.
The Marital Residence
The parties acquired the marital home located at XXXX Avenue H, Brooklyn, New York by Deed dated December 19, 1980.
The purchase price was $53,000.
The XXXX Avenue H property is a legal 2-family.
The XXXX Avenue H property has twice been evaluated by court appointed expert Tom Macaluso of Macaluso Realty.
As of September 15, 2012, Macaluso Realty appraised the property to have a value of $525,000.
As of November 22, 2013, Macaluso Realty appraised the property to have a value of $500,000.
The XXXX Avenue H property does not have a mortgage.
The parties agree that this premises is marital property, subject to equitable distribution. XXX West 131st Street, New York, NY
The XXX West 131st Street property has twice been evaluated by court appointed expert Tom Macaluso of Macaluso Realty.
As of September 15, 2012, Macaluso Realty appraised the property to have a value of $490,000.
As of November 22, 2013, Macaluso Realty appraised the property to have a value of $566,000.
From 2006 to the present, the Defendant has listed the real estate tax payments for this premises as a deduction on his State and Federal tax returns.
The XXX West 131st Street property does not have a mortgage.
The Plaintiff contends that from 1991 through 2013 the Defendant has expended more than $157,995 of joint marital monies, in his purchase, insurance, and maintenance for this premises. The Defendant denies that this amount has been expended.
The Plaintiff contends that this premises is marital property.
The Defendant contends that this premises is separate property.
The parties do not agree as to what portion or percentage of the premises is owned by the Defendant. Plaintiff's Income, Employment History and Pension Values
At the time of her retirement, the Plaintiff was employed by the New York City Human Resources Administration.
The Plaintiff retired on May 25, 2005.
The Plaintiff maintains two pension plans, one through NYCERS and one through Deutsche Bank (also know as "The Bankers Trust Prior Plan").
Both pensions are in payout status.
The Plaintiff's NYCERS pension and defined benefit plan has been evaluated by Lexington Pension Consultants, and as of the date of commencement, had a value of $194,331.01.
The parties stipulate and agree as to this value and valuation date for purposes of the Plaintiff's Bankers Trust Prior pension.
The Plaintiff presently receives annual income from both of her pensions, as well as social security.
As reported in Plaintiff's 2012 Federal tax return, her combined annual income from her two pensions and social security total $31,845. Defendant's Income, Employment History and Pension Values
At the time of his retirement, the Defendant was employed by the Metropolitan Transportation Authority ("MTA").
The Defendant retired on September 30, 2006.
The Defendant has one pension plan with NYCERS.
The Defendant's NYCERS pension and defined benefits plan has been evaluated by Lexington Pension Consultants, and as of the date of commencement had a value of $528,709.35, which represents the marital portion earned during the marriage.
The parties stipulate and agree as to this value and valuation date for the purposes of Defendant's NYCERS pension.
The Defendant elected to receive the maximum payout from his pension, and there is no death beneficiary as a result.
The Defendant presently receives annual income from both his pension and social security in the sum of $5,739.33.
This amount was omitted from the stipulation and has been inserted by the Court based on the Husband's statement of proposed disposition and other documents in evidence.
Husband
Plaintiff's Request for Maintenance and
Request that Defendant be Ordered to Obtain Life Insurance to Secure Maintenance Award
The Plaintiff maintains that she is entitled to durational maintenance. The Defendant denies this contention.
On March 13, 2014, this court ordered that the Defendant pay to Plaintiff $1,700 per month as and for pendente lite maintenance.
The Defendant does not maintain any life insurance naming the Plaintiff as a beneficiary. The Plaintiff does not maintain any life insurance naming the Defendant as a beneficiary. Bank Accounts, Annuities, and Monies Titled in the Name of the Parties
Other than the real property and pensions listed above, the parties maintained bank accounts, annuities, IRA accounts and other investment vehicles in their names at the time of the commencement of this action.
The following accounts were those titled in the name of the Plaintiff. Balances listed are proximate to the time of the commencement of this action: InstitutionAcct. No.Acct. TypeBalanceAs of ChaseNo.4921checking$554.2741007 Chase#4720savings$3,126.7941007 Chase#2949traditional IRA$1,481.3841007 Chase#3299traditional IRA$2,438.7641007 Chase#5163traditional IRA$48.9641007 Chase#1840checking$1,563.6841007 Chase#8658brokerage$10,865.0041029 Principal Financial Group#3107annuity$20,937.4041007 HSBC#787-2checking$1,736.7640997 HSBC#512-6checking$64.4841031 HSBC#271-4money market$5,641.9841031 Total value: $48,459.46
Transfers Made by the Defendant to his Sister
in Contemplation of the Matrimonial Action
The following are the bank accounts, amounts, and dates for the transactions at issue (both made prior to and after the commencement of the divorce action):
| Chase Plus Savings Acct. #1995 | $5,000 | 40987 |
| Chase Plus Savings Acct #1995 | $94,000 | 40988 |
| Chase Savings Acct #5900 | $60,000 | 41038 |
| Chase Savings Acct #5900 | $600 | 41065 |
| Chase Savings Acct #5900 | $15,000 | 41101 |
| Chase Platinum Savings Acct #9720 | $5,000 | 40988 |
| Chase Platinum Savings Acct #9720 | $8,800 | 40988 |
| Chase Platinum Savings Acct #9720 | $5,000 | 41046 |
| Chase Platinum Savings Acct #9720 | $15,000 | 41046 |
| Chase Platinum Savings Acct #9720 | $1,200 | 41057 |
Total: $209,600
Grounds for Divorce
The parties stipulate and agree that the Plaintiff shall take a divorce from the Defendant on the grounds of DRL §170 (7).
Miscellaneous
The Defendant has paid the Plaintiff's counsel $65,000 representing a portion of the Plaintiff's legal fees throughout the course of this action. The Defendant contends that these fees are subject to reallocation. The Plaintiff contends that these fees are solely chargeable to the Defendant, or alternatively, are chargeable against any equitable award or distributive share payable unto the Defendant after the trial of this action. The Court previously ordered that the Defendant is responsible for the tax consequences of the $50,000 previously paid by the Defendant in legal fees.
TESTIMONY
Plaintiff-Wife: BC
The Wife testified that she is currently 71 years old, was born in Nottoway, Virginia and came to New York to live with her sister when she was around 21 years old. She became employed as a typist with the Bankers Trust Company and worked there for about 20 years. She then went to work for the New York City Human Resources as an eligibility specialist interviewing clients for welfare and food stamps for 13 years. She retired in 2005 while the Defendant (Husband) continued to work until he retired in 2006.
The Wife testified that she married the Husband (her only marriage) on March 23, 1968 and they had one child, DC, currently age 47. At the time of her marriage, her Husband worked at the Serial Wire and Cable Company. He receives a pension from Serial however, she signed a waiver and gave up her right to receive any of that money. Her Husband said, "B[.], B[.], sign here, sign here" it is only $50.
Throughout their marriage, since 1968, they paid the bills together until March 15, 2012 when she moved out of the marital residence at XXXX Avenue H. She stated that the house was purchased for $53,000 with marital monies and that they moved in on December 25, 1980. The house had two apartments; the parties lived in the upstairs apartment and their son and his family lived in the downstairs apartment. When her son was no longer married to his first wife, she left and her son remarried. The son's two children with his first wife (Daniella and Monica) are 23 and 25 years old and live with her Husband.
As to her health, the Wife said that she was diagnosed with myasthenia gravis in August 2009, a weakness of muscles through her whole body; it to say certain words and sometimes the words, can't come out. The Wife testified that the Husband was aware of her diagnosis because she gave him a book that she asked him to read which says that if she is under stressful situations her muscles will deteriorate and she could die.
Her Husband, she said, was diagnosed with prostate cancer in 2005 and he started to act irrationally. He would cut up her clothes, books, and the curtains. He would cut the rubber around the refrigerator which she had to then replace and he put a big dent in their son's refrigerator in his apartment.
In 2004, she said, her hair fell out because her Husband was putting Nair into her hair conditioner. She had to wear a wig for three years. She stopped sleeping in the same room with her Husband in 2011 because he would poke her in her face and cheek area waking her up while she was sleeping. One night, he touched her and she saw his hand go back and he pretended he was asleep and one night she woke up and he was standing over her holding something; he walked around the bed, put whatever he had under the pillow, and got in the bed. After this incident, she said, she moved out of the bedroom and moved into a bedroom in the front of the home, away from the Husband. She had a locksmith put a lock on the door to keep him out. She did this, she said, because he would cut up and bleach her clothes.
Nair is a hair removal product.
In 2009, the Wife visited her sister in the Bronx and when she returned, the Husband had locked her out of the house. Her sister took the door off the hinge to permit the Wife to get into the house. In May 2012, the doors were locked and she called the police who came to the house and rung the bell. Her Husband and her granddaughters where in the house but would not open the door. She had to call the locksmith.
Another time, she overheard her Husband on the phone that "B[.] was not getting" his money; he would kill her just like "Eustis killed Jeanette." He said this to her on at least three different occasions. She recalled that one year, before she left the marital residence, the Husband called her a leach and he told her to get out; on another occasion he spit in her face. In the year or two before she left, he constantly called her names and one time he kicked her in her lower back. He painted a cross on their mirrors, top of the doors, ceilings, and the back door. When she undergoes stress, she said, her muscles deteriorate and living with the Husband was very stressful; he wanted her out of the house. She left the marital residence, she said, because she feared for her life.
Eustis was a family friend who killed his wife (Jeanette) and then killed himself.
The Wife testified that she planned to move to Virginia but she was unable to move because of her medical insurance. She has to see different doctors and her insurance would not cover her in Virginia. She needed to see a neurologist who took GHI insurance, but doctors she contacted were not taking new patients. She also has to see an eye doctor because her eyes are deteriorating (she has floaters and she had cataract surgery). The Wife also had court dates (in New York) and the parties were going to mediation "quite a few times".
As to her income, the Wife stated that she receives a pension from Deutsche Bank of $200, a pension from New York (NYCERS) of $937, and social security of $1,433 a month which totals about $30,000 a year. Her lawyer prepared her statement of net worth (February 2014) from bills the Wife supplied to her lawyer. These sums, she testified, are accurate as of February 2014 and are accurate as of November 2014.
The Wife testified to the following current expenses:
Rent:$2,169/month
Utilities( cable, electric, gas, cellular):$200 every two months
Telephone/internet:$150
Groceries:$430/month
Dining out:$322.50/month
Clothing:$200/month
Laundry:$25/month
Life insurance:$196.32/month
Car insurance (Toyota Camry):$287/month
Pharmaceuticals:$100/month
Eyeglasses:$500/year
Automotive:$414.12/month
Recreation:$175/month
Beauty parlor:$107.50/month
Beauty aids:$50/month
Charitable contributions:$50/month
Referring to her statement of net worth (pl. ex. 21), the Wife testified that she has dental bills including dental surgery. She paid $2,000 for dental surgery, and $3,529 to the dentist for bridge work. The Wife added that her medical expenses (including pharmaceuticals) are necessary for her to be well.
She also purchases gifts for birthday parties and holidays, and buys presents for her granddaughter and grandson.
Regarding her expenses for household maintenance as reflected in her statement of net worth, the Wife testified that when she left the marital residence she did not take any furniture, bedding, linens with her nor did she take any jewelry. There came a time after March 2012 that she purchased a bed, a television, a washing machine and dryer, a sofa and two chairs, a recliner, pillows, towels, and bath accessories. She needed these items because she left the marital residence with only her clothes. As to the cost of items she purchased when she vacated the marital residence, the parties stipulated that the Wife needed to purchase same (silverware, pots, pans, dishes, bedding, sheets, etc.) as they were necessary for her to function in a new apartment.
In response to counsel's questions, the Wife testified that she has paid her attorney $46,200 and that her Husband has paid her law firm a total of $65,000 in addition to money the Wife paid. This is, she agreed, a total of $111,200 in counsel fees. The Wife agreed that her statement of net worth shows monthly expenses of $7,934 but if the cost of counsel fees paid every month ($2,516) is omitted, her monthly expenses to live away from the marital residence is about $5,500 a month.
Prior to the Husband's temporary maintenance order of $1,700 a month, the Wife was living on social security ($1,433) and her two pensions ($1,128.54). She agreed that she was still short $1,300 a month and had to use her savings to meet expenses. Of the $48,459.46 of her savings she has taken out $25,000 to meet her expenses. She has also spent $100,000 of the monies paid to her pursuant to the August 27, 2012 order (see, pl. ex 67).
Asked about an annuity with Principal Financial Group" (pl. ex. 42) which had a balance close to the commencement of $48,459.46, she stated that monies were withdrawn to "fuel" the litigation, leaving a balance of $20,937.40. She asserts that the entire amount should be included in determining the marital estate.
Regarding the parties' tax returns, the Wife testified the parties filed jointly from 1968 until 2008. Although she asked to see the returns, the Husband never wanted her to look and he told her to just sign them so she did. When she asked to see the returns, he would only show her own information. She filed separately in 2009, 2010, 2011, 2012, and 2013. Her husband would give her money if she needed it, she said, and he never denied her.
As to XXX West 131st Street (Harlem property), she and her Husband discussed plans to make the SRO's into rentals and in discussing these plans he called the property their house. The Wife stated that she knows Julian Lander as the engineer hired by her Husband to change the SRO apartments into rentals. Lindenwood Green is her brother-in-law and a contractor. Her Husband asked Lindenwood if he would install two kitchens and two bathrooms in the Harlem property. Lander and Green were hired and paid $13,000 for two month's of work. The construction was done on the parlor floor. The Wife testified that she went with the Husband almost every Saturday; she would hold the ladder when he did work on the roof and she would work in the back yard.
In addition to installing two bathrooms and two kitchens, the Husband also put in a new fence, a door, and windows. He also hired an electrician to make $1,500 in repairs (Electric Installation Corporation). If it snowed, her Husband shoveled the street and if he couldn't he hired his nephew to shovel. They went to the property every weekend for about a year. When she questioned the Husband about a bed and lamp inside she saw inside, he told her that when he is tired he goes there to sleep. She used the facilities in the building until 2007 when he told her that the bathrooms were not working and he took her to use the bathroom at McDonald's. She never had keys to the property but her son did
As to expenses on the Harlem property, she testified that the Husband paid electric bills, real estate taxes, water and sewer bills, and violations on the property. He also filed plans to convert the building and hired a physical engineer. The Husband received mail at the Harlem property, including utility bills that were addressed only to the Husband. She knew she said that her Husband was paying these bills out of marital income. He told her it is his building and he can do what he wants with it. No one else contributed to the bills and the Husband had always said that he is the sole owner; it is his house and he could rent it when he wants. The first time she heard that he only owns one third of the property is when the divorce started.
From 1991 through 2008, the Husband deducted the property's real estate taxes from their joint tax returns. At one time (2006), a neighbor (Dougie Fresh) wanted to purchase the property for $1.2 million, but her Husband said that was a small amount at the time. She has since had offers on the property and her counsel has forwarded that information to her Husband's counsel.
When asked if she ever gave permission to her Husband to "disseminate" money to his niece PW's daughter (SW) in the amount of $600 a month, the Wife testified that she did not nor did she have any knowledge of it and first learned about it during litigation.
From 1968 through 2012, the parties had an upper middle class lifestyle. They were not rich; they owned two cars, paid their bills together, and had no debt. In 2012, they owned the marital residence and the Harlem property without mortgages. There was no prohibition on her spending money and the Husband did not restrict her to a budget.
The court was asked to take judicial notice of the temporary order of protection issued by Justice Sunshine dated July 2, 2012. The application for an order of protection was resolved without a finding.
When she left the marital home, she did not take her jewelry- her father's gold ring, jewelry from her mother, rings, earrings, and her own jewelry. The jewelry is still in the home because the Husband would not give it to her. She would like to go back to the home when this case is over; she would rent the second apartment. She would like the Harlem property to be sold.
The Wife concluded her testimony establishing grounds for divorce as follows: She married the Husband on March 23, 1968 in Manhattan, New York in a civil ceremony. There is one child of the marriage, DC who is emancipated. There are no minor children. Her medical insurance is Medicare and GHI and her Husband has Medicare and Empire. On or about November 1, 2011 the relationship between the parties broke down irretrievably more than six months prior to the commencement of the action, which breakdown took place at XXXX Avenue H. Her maiden name if she wanted to resume it is E.
On cross examination, the Wife recalled Justice Richter's statement on the record reiterating the parties' understanding that pursuant to their financial agreement placed on the record before her, the Wife would relocate to Virginia and, upon her relocation, the temporary order of protection would be vacated. When asked if she understood that she was receiving $100,000, the Wife replied that she knew the Husband was giving her $100,000 but she did not go to Virginia because of her "medical." At the time she appeared before Judge Richter, she did not intend to move to Virginia because of her health reasons. The Wife stated that they were each covered under the other's insurance policy but that "they" took him off. Now neither of them are covered under the other's policy.
Rather than move to Virginia, she moved in with her son in Staten Island because her Husband beat her and he was violent. She testified that her Husband hit her numerous times and that she did call the police; she is not in possession of any police reports; she took photos but she does not have any. She did not see her Husband damage the refrigerator. At the time he cut up her cloths with scissors, her son and his family lived in the marital residence. The Husband cut up everything in the house.
Her granddaughters, Monica and Daniella, did live with her and Monica was prosecuted and convicted for taking money from her. She testified against her granddaughter but it was her son who brought the charges. She is, she said, still close to her granddaughters.
There was no specific day, she responded, it was over a period of time because of his (Husband's) vicious acts and she put a few clothes in a suitcase and left everything at the marital residence. She does have a safe in the house that she removed but it contained nothing but papers. She did not take her jewelry; the Husband took out her jewelry, bank book and everything.
The parties' son helped her move with his truck. Her Husband watched her move out and called her a "leach and told her she had Alzheimer; she was fearful for her life." The Wife stated that she had to leave her son's house because there were stairs all over. She was diagnosed with myasthenia gravis (a muscle disorder) and she lived in the basement and could not climb the stairs to the bathroom; she fell and needed surgery. She is covered by Medicare and GHI but she was unable to find a doctor in the Virginia Beach area.
In response to counsel's questions, the Wife testified that in addition to herself and her Husband only her son, his wife and their daughters ever lived in the marital residence. Her son did not pay rent while her lived there. They did not decide that Avenue H would be a family house only that she allowed her son to live in the downstairs apartment. Her son made all the repairs in the house and he bought the appliances for the upstairs and downstairs apartments. They did not have a mortgage.
She reiterated that she retired in 2005 at which time she was working at HRA as an eligibility specialist earning about $25,000 a year. She worked about 25 years during the marriage and she and her Husband pooled their income to pay all expenses in the house. She gave him money and he wrote the checks. She did not know how much of her income went into savings.
In response to counsel's question, she testified that in her statement of net worth it indicates that she is paying rent of $2,172.78 and that she moved into the apartment in August 2012. She has one bedroom and she purchased a television, sofa and two chairs and a bed. She did not look into renting furniture, she said. She dines out and her statement of net worth shows she spent $322.50 a month, usually dinner but it depends where she is during the day. She also reiterated her grocery and clothing expenses.
Life insurance of $196.32 a month is deducted from the cash value, but, she said, it is going to end soon. Furniture and housewares are listed at $300 a month which reflects the cost incurred of between $12,000 and $15,000 for furniture; this is money already spent. She agreed that the $30,200 in legal fees is not an ongoing expense and $2,516.66 is not an ongoing expense although she has paid $46,000 in legal fees.
The Wife also reiterated her car payment expense and added that she spends about $65 per month for gas. She explained that the monthly gift expense of $150 is for her grandchildren. Questioned about $20,000 reflected on her 2012 tax return, she responded that she cashed in an IRA because she need the money to live. In addition to her social security and her pension, she also used this money from her IRA. She explained that she characterized her marital lifestyle as middle to high income because she "did not have to want for anything." She does not know how much money she and her Husband actually spent; they just paid the bills. For vacations, she said, she went to Virginia and she has been to Barbados two times. She had jewelry that she purchased herself and gifts from her family. She did not go to Broadway shows or dine out on a regular basis with her Husband because he did not want to. She had what she needed, they each had a car and no debts; that is a good lifestyle. She lived this way throughout the marriage; that parties pooled their money until she left the marital residence.
She only found out about the money sent to her Husband's niece during the divorce action; it was brought up in mediation. She never checked up on her Husband during the marriage; he did not even let her even see his tax papers, she signed without reading them. Her Husband would wait until the last minute and then go to her office and tell her to sign but would not let her see it.
There was a closing on the Harlem property and she did see a copy of the deed but she did not read over everything. Her Husband had a bed on the property and he would tell her that after he worked he would sleep. She has been with him when he gets the mail from the property.
On redirect examination, when asked to review a list of jewelry provided to her attorney, the Wife responded that the list consisted of the jewelry given to her over the years by her family. She had about six gold bangles, rings, her father's gold Mason's ring and necklace, and jewelry from her mother when she passed. The jewelry was not in the safe and her Husband said that he took it in 2009.
As to the parties' agreement before Judge Richter, the Wile explained that the reason she told Judge Richter on July 12, 2012 that she intended to move to Virginia Beach was because she wanted to move to live near her sister, a sergeant in the police department who had retired she moved to Virginia Beach. She intended to move but when she called doctors in Virginia, they were not taking new patients and she decided to remain in New York near her doctors. The parties also participated in mediation for two years traveling to Manhattan twice a month and she also had to come to court often. She did not know how she could travel from Virginia.
In her three affidavits of net worth, the Wife incurred legal expenses in 2013 of $30,000 which is included as a monthly expense of $7,934 .09. When asked on direct examination what her actual monthly expenses are those costs were not included. With the legal fees taken away, she stated, she expend $5,500 a month over the last two and a half years which multiplied by 12, she agreed, comes to $66,000 a year. She also, she said, wrote checks for the mediator ($850) and to the court for court expenses. She paid $520 and $320 for real estate appraisals, $335 for court costs, and $400 for a Lexington Pension appraisal.
Over two and a half years, she has generated income of over $75,000 from social security and pensions and that her Husband has paid her alimony of $1,700 a month since February 15, 2014. Her Husband also gave her two checks totaling $100,000 and she withdrew $24,825 from her savings. She does not have $48,000 remaining as she has to "spend money out." She also needs to reimburse her lawyer for the expert fees paid to him.
The Wife testified further that she never knew the Husband's exact income over the years, he did not sit down and go over it with her. On continued redirect, the Wife stated that the Husband never curtailed her spending. Further, she knows it was her Husband who cut up her clothing because her granddaughters were not living there at that time and had not lived there for about two years. She reiterated that the Husband also bleached clothes and sheets .
She signed all the tax returns until 2008; when she asked her Husband for copies of what they signed, he only gave her what pertained to her and nothing that pertained to him. So in 2009, she began filing her own taxes. She did not remove her Husband from her health insurance, she answered, but she received a letter from her insurance company in 2012 telling her that if they were married and they both had health insurance she could not cover her Husband.
Regarding the deed to the Harlem property, she did, she said, see it but did not really read it. There is a gate in front of the Harlem property and she thought the gate was unlocked and her Husband would open the gate and pick up all the flyers in the front and she thought he was getting mail there.
Defendant-Husband: RC
Called as the Wife's witness, the Husband testified that he is currently 74 years old and was born August 21, 1940 in Barbados, West Indies. He has been back two times with his Wife. He married the Wife in City Hall in New York City, they did not have a religious wedding and they have been married 44 years.
They have one son, DC, who was a correction officer and then transferred to the New York City Police Department where he worked his way up; he retired as an undercover detective and, to the Husband's knowledge, he does not work. He and the son once had a close relationship but since his son threatened him in 2007, they have never been close again.
The Husband testified that he worked before he met his Wife and during most of their marriage; he worked nights and his Wife worked days. He stated that he never spent one night in the Harlem property but that there are beds there. He explained that after the property was vandalized, DC and his friends would stay at the building until the Husband got security; there is a bed and a recliner. There were no rental apartments in the Harlem property, an SRO. When his family was alive, they lived on the ground and parlor floor. .
Further to his career, he testified that he worked at Cerro Wire and Cable, a company that manufactured cable for Con Edison. He worked his way up to a production supervisor leaving there when the company closed in 1982. He did not receive a pension from Cerro Cable but he was in the Electrical Workers Union for ten years in management and he received a pension from the union. Shown his June 2012 statement of net worth (pl. ex. 17), the Husband responded that "no pensions" are listed. He stated that he signed (the statement) in separate sheets, not as one document; he reviewed loose sheets of paper and then signed. He agreed with counsel that the pension was not on his statement of net worth but that he receives $58.37 a month and the pension is in payout status.
Showing the Husband his March 28, 2013 statement of net worth (pl. ex. 18), he identified his signature and he agreed that neither the pension from the electrical nor the income is shown on the statement. As to the Husband's November 4, 2014, statement of net worth (pl. ex. 106), the Husband agreed that the pension was not listed in that statement either. He agreed with Wife's counsel that the month income of $3,628.33 is from his NYCERS pension with the MTA. He does not know if the electrical union pension was factored into that.
He acknowledges that the Wife's two pensions were evaluated during the case to determine the marital portion. One of his pension was evaluated. The Court notes at this point in the testimony, the attorneys for the parties stipulated on the record that the marital value of the Wife's pension at Deutsch Bank is $42,331.01.
Regarding the Husband's November 2014 net worth statement, he agreed that he spends $200 a month or 2,400 a year on clothing. Also referring to the net worth statements, he testified that the real estate taxes of $924 a month or $11,088 a year are for both the marital property and the Harlem property. The amount changes every year but he has paid the marital residence taxes since 1980 and the Harlem property taxes since 1991. He writes separate checks for the taxes but, he stated, he does not own the Harlem property; he pays it for his family. This is an agreement between him and his family, he represents them. The $159.51 utility expense and $142 water expense listed on his net worth statement includes both properties. If those properties were sold, he would not have real estate taxes.
Questioned about his federal taxes, he indicated that he paid $726 a month or $9,871.96 a year but that $726 is actually $6,372. He explained that this statement should be void and it was later revised. The Husband stated that he gave all his papers to his prior attorney and that he caught the errors the next day. Shown his net worth statement (Pl. ex. 17) he was asked if his total income is actually $5,573 a month and $65,000 a year and not $3,760.16 a month or $45,011.92. He answered that the statement is void and had been corrected.
The Husband continued his testimony and agreed that on March 20, 2012, five days after the Wife left the house, he hired a locksmith to change the front door lock and the garage lock. His Wife was unable to gain access to the house.
Wife's counsel inquired of paragraph 41 of the Husband's sworn statement contained in his Notice of Cross Motions dated June 15, 2012 stating that the plaintiff also claims he purchased a home in Harlem known as XXX West 131st Street, New York, New York 10027 using marital assets. The Husband testified that this is not a true statement. The home was partly an inheritance since his mother (SC) and his cousin (C. Archer) jointly inherited the property. He explained that C. Archer's wife, I. Archer duly inherited the property upon C's death. In paragraph 42, he states "(m)y mother's interest was gifted directly to me and I paid I. Archer for her share of the property with $25,000 in marital funds. This occurred in April of 1991. He did not see this statement and he had to make and amendment; the statement was submitted without his reviewing it. He acknowledged that he said the same thing about his statement of net worth, that there was an error and he went back to his attorney to correct it. It should have been void but it was not, it was submitted to his lawyer.
Shown a Liberty Mutual Insurance statement (pl. ex. 82), he stated that is carries insurance for two residences; liability insurance "on the Harlem house" and his "main house." However, he acknowledged that the policy statement includes "back up house sewer and sump pump" for both the marital residence and Harlem property for the period June 21, 2011 to June 21, 2012. The Husband could not recall when he first got coverage for the Harlem property. He had one claim for the marital residence when his neighbor had a problem with his own chimney causing water to the marital residence. This was the water damage referred to in the appraisal report and the appraisal was reduced from $525,000 to $510,000. The Husband attributes the decrease in value to a homeless shelter being built. But he agreed that the appraisal report attributes the decrease in value to the water damage. The Husband states that he is the only one living in the marital residence but that his eldest granddaughter is back and forth; she not pay rent.
The Husband also agreed that he has received a property tax bill for the Harlem property since 1991 and has paid all of the real estate taxes to the New York City Financial Department or the water board. He agreed that all the checks to the Department of Finance are his, that he gets a bill every quarter, he pays the taxes once or twice a year and he has paid them himself for 23 years. He is current on those bills and does not owe any real estate tax. He uses his income to pay the taxes and he pays them for his family as he represents them. He does not have any documentation from anyone showing that they give him money for the real estate taxes.
The Husband agreed that the documents in evidence show that he has paid $51,294.04 in real estate taxes on the Harlem property and that he has also paid water and sewer bills from 1991 through today. No one else has contributed, he said, he takes care of that for the family. But he does not own the property, he is a part owner of the property. He repeated that he takes care of this for the family.
The Husband testified that in 2003 he hired Julian Flander, a professional engineer and a co worker of his from the New York City Transit Authority to renovate the Harlem property. Mr. Flander drafted plans to convert the Harlem property from a rooming house (SRO) to four apartments. He paid him the money to file the plans to the building department. He also submitted plans with regard to the water sprinkling systems. He did this for him because he was a co-worker and a friend. Shown plaintiff's exhibit 110, the Husband acknowledged that he is listed as the owner of the property. The Husband stated that he had to list himself as the owner because he represents his family. The Husband also acknowledged hiring Lektic Installation Corp. to upgrade and install new panels after Con Edison ran new wires into the property. He used his income to pay $1,500 in September 2007 for these upgrades; no one else contributed to this payment. Since 1991 through the present he has used his income and savings to supply electricity to the Harlem property. The Husband confirmed that documents 11 and 12 in evidence are records of all electric bills paid for the Harlem property.
In response to counsel's question, the Husband stated that he hired Linwood Green, the Wife's brother-in-law, to perform work on the property. He asked the Wife to see is Mr. Green could put in a bathroom and kitchen on all floors to so that they could go there and use the property. Mr. Green installed a 5 inch (sic) bathroom, small kitchen unit and all the floors in plywood. In response to how many kitchens he installed, the Husband testified, one on the ground floor and the top floor. The Husband paid Mr. Green $13,000 from his income. There is also a water issues, the ceiling came down and he showed the appraiser the rotted beams. The Husband agreed that Mr. Green put in two supporting beams but it was not enough.He answered, that he gets water and sewer in the building and he has to pay the minimum, the basic, because he has water coming in. Right now, he said, the taxes say there are eleven units but there were ten before. The Husband responded to counsel that if there were violations on the Harlem property, he paid them. However, he does not remember because nobody lives there; it is not habitable. If he paid for violations on the property, he would have done so from his own personal money.
The Husband also agreed with counsel that he paid $25,000 for his "share" of the building, and a total of $51,295 for real property taxes for the building, $858 for water and sewer expenses and all the expenses for home owners' insurance on the building. He clarified, however, that the marital residence was his "main insurance." He agreed that he paid Con Edison every month for 23 years and that he paid $1,500 for the electrical boxes and $13,000 to install two beams in the kitchen and for part of the kitchen and bathroom.
As to the marital residence, in addition to the water damage and a men's homeless shelter and referring to the appraisal report (pl. ex. 4) the Husband answered that he did not have an exterminator come to the property every year. He has not had a rodent problem since his son left the apartment. The appraisal report indicates that the floor molding was damaged by rodents and the holes are stuffed with steel wool and insulation, however, the Husband testified that this was caused by his son while he lived there.
Again, in reviewing his net worth statements, he stated that he lists his monthly expenses as $3,528.71 per month and his gross income as reflected in his statement of net worth and as stipulated to is $5,739.33 per month. He disputes that he paying $600 per month to his niece, SW. His prior lawyer inserted this into he statement without his knowledge. Shown his statements of net worth marked into evidence which refer to $600 as "(m)oney to sister to help with daughter who suffers from seizures and cannot work," the Husband stated that he told his lawyer to take this out; he never paid that- this is why she is not his lawyer anymore. He agreed that he reviewed with his prior counsel how to present his case and that he recalls making a settlement offer of about $55,000 on May 23, 2012. He gave his prior counsel eight checks over one year and he gave all his documents to her to prepare his statement of net worth.
He did not tell his prior counsel that he paid $25,000 to the estate of WG in order to receive full title to the Harlem property. He told her that he was part owner of the property. He told his lawyer that his mother (SC) and his uncle (C. Archer) were heirs to the property and that when his uncle died the property went to his wife (I. Archer). He told his lawyer that he paid $25,000 in consideration for him to be part of the estate. Part of the property (Harlem) was a gift and part he paid for.
Asked if he looked in the New York County Supreme Court or the Surrogate's Court to determine whether anyone else (SC, I. Archer or their heirs) ever commenced proceedings claiming to seek or claim ownership of the subject property. He stated that he obtained only a full copy of the estate of WG to which Sybil is the administratrix. Asked if he recalls the substance of his mother's petition to the Surrogate and if the building was in the same condition when he took ownership, specifically, that his mother stated that she be appointed administrator of the estate and that it is urgently necessary (because) "the roomers have deteriorated to become cocaine...involvers (sic) and have wrecked the interior of the building...sold chandeliers...and other items...and pay no rent to any person," the Husband replied that he does not. The lawyer, he said, represented his mother and the whole family but he can't say whether lawyers were hired to evict illegal occupants. Looking at plaintiff's exhibit 79 (Petition to Determine Estate Tax under Art. 26 of the Tax Law) the Husband was able to see that $5,500 was paid to lawyers but he said he was now aware...his mother is deceased and so is Mr. Pulley, the lawyer.
After Iona and WG died, he agreed, the building became inhabited by crack addicts, they got the people out and he took over; his mother is up in age and he put his name on the Con Ed bill; no one else's name is on the bill and it is sent to the parties' marital residence (Avenue H). He agreed that he put the water, sewer bill and real property tax bill in his name. Insurance with Liberty Mutual is also in his name and that is "part of the coverage for XXXX Avenue H, second home."
The Husband agreed that pursuant to the August 27, 2012 order, he paid $100,000 from two annuities on two different dates as an advance to his Wife of equitable distribution. The total tax implication was $13,895.53 upon filing his 2012 tax returns.
On continued direct examination, counsel stipulated that the Husband was served with summons and complaint on May 8, 2012. The Wife left the home on March 16, 2012 with their son. He first learned that his Wife was unhappy in the first week of March (2012), when he was informed by his granddaughter his Wife was planning to divorce. The Wife had moved out of the master bedroom in 2007.
In October 2014, the Manhattan property was appraised for $785,000 and the marital residence was appraised at $510,000; the Husband agreed that no other appraisals were conducted to contradict these values.
Shown Chase bank statements (pl. ex. 43) for accounts ending in 7500 (checking) and 9720 (savings), the Husband agreed that the total ending balance was $88,944.58 on January 4, 2012. As of February 3, 2012, the total ending balance in the same accounts is $88,953.10; as of April 4, 2012, the total ending balance was $30,203.49; on May 3, 2012, the balance in those accounts was $30,189.68. At this point during the Husband's testimony, Husband's counsel stipulated that the accounts had a balance of $8,929.14 on June 5, 2012.
Shown bank statements from February 4, 2012 through March 5, 2012 for three accounts ending 4822, 1995 and 5900 (pl. ex. 44 ), the Husband agreed that the total ending balance on March 5, 2012, before his Wife left the marital residence, was $193,992.84. Shown the same three accounts as of April 4, 2012, after the Wife left the marital residence, he agreed, that the ending balance was $142,839.99.
He further testified that he sent his sister $5,000 on March 20, 2012 and transferred $94,000 to her on March 21, 2012. The total ending balance of those accounts was $138,026.57. Continuing, the Husband acknowledged that for the same three accounts from May 4, 2012 through June 5, 2012 he sent $60,000 to an account belonging to his sister but, he said, he never sent any money to his niece.
Shown the Chase statements (pl. ex. 45), he agreed that the net equity as of April 30,2012 was $16,917. The account ending 0436 (pl. ex. 46 ), had a balance of $10,727 as of July 31, 2012 and his July 27, 2012 fixed annuity annual statement (account ending 8347) had a balance of $127,021.55 (pl. ex. 47).
The Husband acknowledged that for the contract year ending May 16, 2012, his U.S. Life Insurance Company Annual Anniversary Statement (ending 2973) had an accumulated value of $45,642.80 (Pl. ex 48). The U.S. Life Annuity surrender value as of March 31, 2012 was $260,872 (pl. ex. 49). He testified that, two years later, he does not know the current value he has to pay. The Husband agreed that the May 7, 2011 - May 6, 2012 statement issued by the American General/US Life Statements for IRA for account ending 2702 has a surrender value of $7,249.61 (pl. ex. 50)
At the conclusion of this area of the Husband's testimony, his counsel stipulated to the following summary:
• On March 20, 2012, the Husband withdrew from Chase account ending 1995, $5,000 and transferred it to his sister and on March 21, 2012.
• On March 21, 2012, the Husband withdrew from Chase account ending 1995 and transferred to his sister $94,000.
• On March 21, 2012, the Husband withdrew from Chase account ending 9720 and transferred to his sister $8,800.
• On May 10, 2012 (two days after service of the summons) the Husband withdrew from Chase account ending 5900 and transferred to his sister $60,000.
• On May 18, 2012, the Husband withdrew from account ending 9720 and transferred to his sister $15,000 .
The Husband also stipulated through his counsel that on approximately five occasions he withdrew from account ending 5900 and transferred to his sister $600.
The Husband testified that in 2008 he hired the firm of Senator Sampson to prepare a contract of sale when "Dougie Fresh" was interested in buying the Manhattan property. Dougie Fresh made an offer, the Husband was not "asking" anything.
As to the Harlem property, the Husband agreed that he deducted the interest and real estate taxes on the premises from his date of ownership until the present and he paid the taxes on the property on behalf of his family. He stated that he does not have life insurance, he has annuities- his Wife and his son were each beneficiaries on one. Referring to plaintiff's exhibits 91, 92, and 93, the Husband agreed that in a November 3, 2008 letter regarding AI Life/AIG policy ending 335C currently worth $268,873, he asked that his siblings and nieces be made the beneficiaries of that annuity. The Husband agreed that plaintiff's exhibit 92 is a U.S. Life policy quarterly statement, a deferred annuity enrollment application and certificate processed at the Dime Savings Bank of New York on May 7,1992 naming his granddaughters, Daniella and Monica as beneficiaries; his Wife is not a beneficiary on this annuity. The Husband testified that his Wife and son are the beneficiaries of the Frierson of American Life Insurance Company, deferred fixed annuity (pl. ex. 93). His Wife is not a beneficiary on the annuity valued at $268,872 or the annuity valued at $45,642; if he dies, the Wife would get the value of the Frierson of America (now U.S. Life) and the Avenue H property (marital residence).
The pension, he said, is in payout status, there is no survivorship benefit; they take all the monies. The present value of the pension, as stipulated to is $528,709.35. The evaluation, he said, is a hypothetical number.
On cross examination by his own counsel, the Husband testified that his current health is fair. He has high blood pressure, glaucoma and arthritis. He had prostate cancer but he had surgery and his prostate was removed.
The Avenue H property has two apartments. When the parties purchased the property in 1980 there was a tenant in one of the apartments; after the tenant relocated, his son moved in with his family and lived rent-free, but that apartment has been vacant since his son moved out. He has not spoken to his son since March 2012. The Husband lives in the other apartment and his granddaughter sometimes lives with him but she does not pay rent.
His apartment has three bedrooms and after he retired in 2005, his Wife moved out of the master bedroom and into the front bedroom. She did not tell him why she moved out of the master bedroom. He testified that his Wife moved out gradually, taking her clothes out of the house and then taking the safe that was in her bedroom down fourteen steps of stairs. The Husband avers that he did not have access to the safe, nor did her keep any of its contents or any of the Wife's jewelry. When the Wife and son left the home there was damage, just stains. She never came back to the home although she had permission to return and remove items.
The Husband recalled negotiating an amount to give his Wife ($100,000) pursuant to an order of Judge Richter which sum he had not problem advancing. His understanding of the order was that his Wife would not return to the home but would relocate to Virginia. He would like to be awarded sole title and possession to the Avenue H property.
The Husband also denies ever locking the Wife out of the home, threatening her life, calling her a leach, spitting in her face or asking her to leave the home, putting anything in her hair conditioner or poking her with his fingers while she slept. Nor did he ever hit his Wife, kick her, put bleach on his her clothes or cut the curtains. In 2009, he took the Wife to Beth Israel hospital and called his son when she was having sever asthma.
Responding to his counsel's inquiry, the Husband stated that he is not the sole owner of the Harlem property- there are two other owners but he is the only one in New York to care for the property. He purchased his interest in the property in 1991 for $25,000 from his own savings with money he earned before the marriage. When he purchased his interest in the Harlem property, he did not hire an attorney- it was the family attorney. There was no sit down closing nor did he know of a title. Prior to this action, he had not seen the title report; he is asking the Court to grant him sole possession of his one third interest in the property.
The Husband told the other owners that he was paying all the bills. The Husband testified that he pays the bills for his family because he in New York and they live "all over"- London, the Bahamas. He stated that his family is very close and he intends to be reimbursed for maintaining the property. The Husband denies hiring Julian Flander to prepare plans to renovate the Harlem property; Julian is a friend who he paid to submit the plans indirectly. The property was vandalized, and someone had to be there because the property was not in the best area at the time; he never had any tenants in the Harlem property because it is not habitable. The Husband testified that he did not personally do any repairs nor did he sleep or receive mail there. His Wife would accompany him is he had to salt or stand (the walk) but she stayed in the car; the property was dusty and she did not go inside much. She did not assist him in any manner with the upkeep.
Regarding plaintiff's 113 (and def. ex. AA), the parties stipulate to the amounts in the two Chase accounts as of May 3, 2012. The parties further stipulate that on March 20, 2012 the Husband transferred $5,000 from his account to his sister, Pauline Webster. He transferred $94,000 to her on March 21, 2012, transferred $8,800 to her on March 21, 2012 and that he transferred a total of $107,800 to his sister. After the commencement of the action (May 8, 2012), he transferred $60,000 to his sister and transferred $15,000 to her on May 18, 2012. On June 6, 2012, he transferred $600 was transferred to his sister. This is a total of $75,000.
The Husband explained that this money was transferred to help his niece, SW, with medical problems; she had seizures. And also because his son had ejaculated on her clothes and she was entitled to some money because of what she witnessed years ago. SW never had professional help and he sent her the for her to get professional help and to "make a wrong right." He testified that he told his Wife she was sending this money and she did not object. In addition to the stipulated transfers, the Husband testified that he sent other monies to his sister on different dates but he cannot recall dates and sums. The stipulated amounts were the only five transfers prior to the commencement that he sent to his sister.
During the marriage, there was no specific arrangement and there was not a regular amount he gave the Wife each week. But, she took care of the telephone, the cable, bought the food. They did not dine out or go to Broadway shows and he did not buy jewelry on a regular basis. They would vacation down south at the Wife's parents' home. He received $58.37 per month from his Electrical Worker's Union.
Regarding the $100,000 payment to the Wife, the Husband responded that Judge Richter directed the parties to share the tax liability (subject to reallocation) due to the early withdrawal of the funds from his annuity and the tax impact of $13,559.53 as reflected in his 2012 tax return. Also, he agreed, he advanced $15,000 to his Wife towards her legal fees, and paid her counsel an additional $50,000 pursuant to a court order. He is asking for a credit of at least half of that amount.
On redirect examination by Wife's counsel, the Husband identified his three net worth statements in evidence. On page 12, section H of each statement of net worth (pensions and trusts), the electrical pension is not listed (as per the attorneys' stipulation).
Regarding real estate listed in the Husband's net worth statements, on his June 15, 2012 statement at page 7, section G, 1.2A (real estate) the Husband affirms that the Harlem home is inherited; this statement is signed by the Husband and notarized by his prior counsel (pl. ex. 17). In the same section of his March 28, 2013 net worth statement (pl. ex. 18), also signed and notarized by his prior counsel, the Harlem property is listed as "gifted" on April 30, 1991 with an estimated current market value of $490,000. The Husband stated that his lawyer made this up and he signed a separate sheet of paper and the lawyer put the papers together. On the third statement of net worth, prepared two years later by his current counsel, the Harlem property is listed as "Harlem home, one third plus." He agreed that this was initialed by him and he was made aware of the contents.
On continued redirect examination, the Husband repeated that he saw the Wife carry the safe from her upstairs floor down fourteen steps and out of the house. He testified that the safe, made of steel, weighs sixty pounds, maybe more, and is about two and a half feet by two feet. The Husband is aware that the Wife is asthmatic but was unaware that she has myasthenia gravis, glaucoma and cataracts.
Upon inquiry, the Husband reiterated that the parties were married in 1968 and he agreed that they were married twenty three years before he spent $25,000 to purchase the Harlem property. While he had documentation to show that this was his separate money, he cannot produce it because he no longer has it.
The Husband agreed that he transferred a total of $107,800 from his account to his sister. Further, after his Wife left on March 16 and March 20, 2012, he changed the locks on Avenue H and on March 21st he transferred the money. When he was served with the divorce papers, they contained "automatic stays" and he moved $75,000 more into his sister's account. Finally, he agreed that after his Wife left and after the automatic stays were in place, he moved $182,800 into his sister's account.
On recross examination by his own counsel, counsel agreed that the amount transferred was $107,800, not the $182,800 stated earlier.
Stewart Sterk Mack
Called to testify as the Wife's expert, Mr. Mack stated that he his a Professor of Law at Benjamin P. Cardozo School of Law at Yeshiva University. He testified that his expert report (pl. ex. 107) includes his resume annexed to the report. He was retained by the Wife to analyze and give his opinion on the effect of a deed and a variety of other papers on a transfer of the Harlem property to the Husband and come to a conclusion about the effect of the deed. After the submission of his report and rebuttal report, he reviewed additional documents which included a copy of a title insurance policy issued in the name of "RC as the owner" of the Harlem property (pl. ex 110 and 94). In his initial report he relied on the deed, the Real Property Transfer Gains Tax Affidavit and Real Estate Transfer Tax Return, the Property Registration forms filed with the New York City Department of Housing Preservation and Development, and income tax returns filed by the Husband together with receipts for real estate tax paid by the Husband. Reviewing the title insurance policy after his reports were concluded strengthened and confirmed the conclusion he reached in his reports.
Plaintiff's exhibit 107A, a rebuttal report, was also admitted into evidence.
Mr. Mack testified that an administrator's deed is a deed executed by an administrator of the estate of a deceased person to a transferee. A combined real property transfer gains tax affidavit and real estate transfer tax return is an affidavit form that needs to be filed in conjunction with the transfer of real property. The New York City HPD property registration forms are forms that the owner of multiple dwellings are required to file with the city. A title of policy is issued by an insurance company guaranteeing that if the title of the named insured is challenged, the title insurance company will defend and indemnify the insured for the losses the insured suffers as a result of any challenge.
Shown the combined real property transfer gains tax affidavit and real estate transfer tax return (pl. ex. 73), the witness stated that this document identifies SC and I. Archer as the transferors and denotes the Husband as the transferee; consideration for the transfer was $25,000. On the reverse side of that document are the notarized signatures of SC and I. Archer and the grantee is RC. The document is notarized by two notaries, on the right side is Arthur L. Pulley (the family attorney).
Reviewing the seven property registration forms filed with the New York City Department of HPD from 2006 to 2013, the witness testified that the documents are certified and that the format of each is the same with a box at the top of the form indicating that the property is "held in individual ownership." Further, the form permits space for joint ownership, partnership ownership, and corporate ownership. These documents are all signed by the Husband, there are no other signatures.
Returning to the title insurance policy, the witness testified that the First American Title Insurance Company issues title insurance policies (pl. ex. 94). Title insurance is obtained upon a transfer of title. The date of July 1, 1991 is reflected on the exhibit and the amount of the insurance is $25,000. The policy also tells us that the Husband received title in 1991 in "fee simple." Mr. Mack explained that a fee simple interest is infinite in duration. As to the Husband's title, the policy states that "(t)he title to the Fee Simple is vested in RC." He stated that a title insurance company will not issue a title policy without conducting a search to make sure there are no other outstanding (title) claims.
The witness identified the administrator's deed dated April 30, 1991 (pl. ex. 6). Identifying a notation on the last page, the witness stated that the name under the "RR" is Arthur Pulley, which is the notary's name on the real property transfer tax affidavit and which also the same name as on the deed. According to the administrator's deed, WG is the deceased (date of death December 2, 1988) and the transferors of the Manhattan property are SC and I. Archer. It is the expert's conclusion that the Husband is the transferee, although the deed is in artfully drafted. He reaches this conclusion because the deed lists I. Archer and SC as co-grantor and administratrix; it does not list RC with any such title. He stated further that one would never transfer title to an admistratrix with this type of deed nor would one list herself as a co-grantor if she was the transferee. Because the deed also provides consideration of $25,000 to be paid only by one person, RC, Mr. Mack concludes that any in artfulness was simply a drafting mistake.
These conclusions are reinforced by the documents previously discussed. Within a matter of days, the same parties who executed the deed also executed the real property transfer gains tax affidavit where I. Archer and SC signed the deed only as transferor and RC signed the deed as transferee. He arrives at the same conclusion as the title company reached later. Mr. Mack believes his reports are buttressed by the title insurance policy in two ways. First, the title insurance company was willing to issue the policy and put money on the line for the proposition that the Husband was the only owner and second, the Husband bought this insurance policy in his own name in 1991 making it conclusive that at the very least he established title by adverse possession in 2011 as there is no one else who made a claim during that period. It is his expert opinion that the Husband has the present and current ability to execute a deed in his own name for the Harlem property and to deed the property to someone else in fee simple.
Mr. Mack testified that an action to quiet title is an action brought to confirm existing title in a particular person who is seeking judicial imperimeter on title that the person already has. The Wife would not be able to maintain an action to quiet title because she appears not to have any ownership or paper claim; the Husband as the owner indicated on the deed would have standing.
Referring to plaintiff's exhibit 5 in evidence, the witness identified same as the deed from Iona Gaskin to William K. Gaskin and Iona Gaskin as joint tenants; it is the prior deed of the Harlem property (Gaskin deed). The witness agreed that the first page of the Gaskin deed states "parties of the first part and William K. Gaskin" and that would be considered as a grantee or transferee of the property as joint tenants which defines the nature of the parties' interest. Normally, when conveying property to multiple parties, the capacity in which the parties are taking ownership is indicated (e.g. joint tenants, tenants in common) to avoid any possible dispute over the nature of the title.
Having reviewed policies of liability insurance for the subject property, RC and BC are the names insured; no one else is named as an owner or managing agent on the New York City Department of HPD multiple dwelling registration forms. Further, based on the documents that he reviewed in connection with the preparation of his reports, there were no other individuals who ever paid any bills, charges, costs, fees or expenses with respect for the Harlem property other than the Husband. The witnessed identified a history of tax payments with respect to the Harlem property stating RC and the property tax bill is the same (pl. ex. 84) .
Mr. Mack concluded his direct testimony by stating that he was retained by the Wife attorney, received an hourly rate for the work performed and will be paid for his time testifying.
On cross examination, Mr. Mack responded that a person acting as the owner of a property by paying real estate taxes and executing and filing tax forms naming oneself as the owner does not make a person the owner of such property. He stated that many things can determine legal ownership of property and, in this instance, case law and statute might determine ownership. Other than adverse possession, he agreed that the name on the deed is the primary document to determine ownership. But, he stated, New York courts have always suggested that when there is any ambiguity in a deed, one can look to parole evidence to determine what the deed meant. In response to counsel, Mr. Mack answered that the deed includes the names of three people as party of the second part, however, that is not a conclusion he would draw. Although it is true that grantees will be listed as parties of the second part and that "grantees" and "parties of the second part" are usually interchangeable terms.
In response to counsel's question, the witness answered that I. Archer and SC's names appear as party of the second part when in fact they were not grantees due to inartful drafting. The language of the deed suggests to him that the drafter intended to say that Isabella and Sybil, co- grantor and administratrix, are conveying (the property) to RC. Further, if the drafter intended Isabella and Sybil to be parties of the second part, he would have identified the nature of ownership taken (e.g. tenants in common, joint tenants or in some other capacity); the drafter does not do that- the drafter was incompetent.
Mr. Mack believes that other documents executed contemporaneously with the deed should be looked at to shed light on the deed's meaning. He does not give much legal significance to the fact that I. Archer and SC are listed as parties of the second part. The witness acknowledged that there is a legal presumption that is indicated in the Estates Powers and Trusts Law §6-2.2 that "(a) disposition of property to two or more persons creates a tenancy in common, unless expressly declared to be a joint tenancy." However, he said, there are a series of cases from the Court of Appeals that held that the presumption can be rebutted if there is sufficient parole evidence to show an intention to create a joint tenancy. Any competent drafter would include the words joint tenant, tenants in common or tenancy by the entirety; he agreed however that leaving it out creates a presumption of tenants in common. He also agreed that all grantees do not need to pay consideration for property.
The witness stated that the combined real property transfer gains tax affidavit (pl. ex. 73) which lists the transferors as SC and I. Archer and RC as the grantee, is a document that would normally be filed. His expert opinion would not materially change if told that the document was not filed; he agreed that the document does not include anyone's social security number. Mr. Mack agreed that the tax due is based upon the consideration paid ($25,000) but he does not know what the tax would have been on $25,000 in 1991. The date of conveyance on the document only indicates "1991"- the month and day are blank. Mr. Mack does not know if this document was filed.
The witness agreed that the title insurance policy (pl. ex. 94) does not indicate legal ownership of the property but added that title policies do not determine ownership, they only guarantee that the company would pay if there is an ownership claim against the policy holder. The witness responded to counsel that most title insurance companies require certain documentation before they are willing to issue a policy, they like to see a search before they issue a policy. The witness did not see a title report; this is a report that an abstractor prepares indicating, with documentation, that in the abstractor's judgment a person has title and why. His expert reports predate his receipt of the title insurance policy. He agreed, however that this title policy will only guarantee up to the amount of $25,000 even if the property was worth a million dollars as the policy is written to the purchase price.
On redirect examination, the witness looked at a stamp on the last page of the deed (pl. ex. 6) with the number S 5001 that indicates $100 "Real Estate Jul 11, 1991 Transfer Tax new York County". The witness agreed that this stamp would be made by the city register's office when the deed is filed. Additionally, he agreed that when a deed is recorded the New York combined real property gains tax affidavit is also filed as part of the recording process. There is a stamp on the deed which represents an assertion that the deed is recorded. He also identified a "reel and page number" which further indicates that the deed was recorded in the New York County Clerk's Office on or about July 11, 1991.
The witness also testified that based upon an examination of plaintiff's exhibits 87 and 88, the Husband paid the real estate taxes and the water bills on the Harlem property.
In response to counsel's question whether an administratix could convey an interest in a property to herself as an administratrix, the witness stated that she could not without court approval as that would be "self dealing."
On recross examination, the witness responded that ordinarily an administratix would obtain court approval to convey property, even if she is a sole survivor. Referring to the deed, the witness acknowledged that even though there may be two transferors or two transferees, the drafters will not change the word "party" to "parties."
Kenneth Zahler
Pursuant to the parties' stipulation, the witness was qualified as an expert in the area of real estate. The witness testified that he is presently employed by Abstracts Incorporated and has been in the title insurance business since 1974 and testified to his educational background and experience in the industry. The witness testified that after becoming a licensed real estate person worked in the area of title insurance. He is not a practicing attorney and he does not draft deeds for the general public but he has prepared (hundreds perhaps thousands of )deeds and other documents for attorneys.
From 1974 to 1985 he was a title closer and did tax searches and property inspections. In 1985 he opened his own company, Aquebogue Abstract, and from 1985 until two and a half years ago, was self employed. He insured titles through First American Title Insurance Company, Fidelity National Title Insurance Company and others. He has attended thousands of real estate closings, prepared many "thousands" of title reports, and had to occasion to prepare and draft deeds.
Identifying his own report, the witness stated that he reviewed all of the documents listed before writing the report. The witness identified the deed "currently to I. Archer, SC and RC" (pl. ex. 6). As to his conclusion of the Husband's interest in the Harlem property, he testified that the three named people are owners of the premises as tenants in common. If told that I. Archer and SC were deceased, each of their estates would have their one third interest. He stated that the grantors are the administrators of the estate of WG. The named parties of the "second part,"are I. Archer, SC, and RC as grantees. When no tenancy is specified (in a deed) the tenancy is tenants in common. From the deed he can determine that consideration was $25,000 and that the party of the first part is truly the estate of WG.
Reviewing the petition for letters of administration for the estate of WG (pl. ex. 75) the witness testified that the document reads "Decedent died seized of REAL PROPERTY, in this state which is improved/unimproved...the estimated value of which does not exceed $85,000." After reading through the entire proceeding he did determine the value. As to percentages of shares, he said, same would only be indicated if they are not equal shares; if percentages are not stated, the parties have equal shares.
The witness next identified the TP584 form as the real estate transfer form that accompanies deeds in New York Stated and it is signed and notarized by SC and I. Archer and it identifies RC as the grantee (pl. ex. 73). He does not believe that this document was actually filed with the City register's office because it does not have social security or federal ID numbers and it does not have a date of conveyance other than a year. The fact that the Husband was the only person to sign the property and registration forms in the New York City Department of Housing and Preservation for the years 2006 and 2013 as individual owner would not change his conclusion as is the sole or partial owner of the property. The deed is the deed and other forms are other forms. Nor does the fact that the Husband was the only person to take the income tax deductions and real estate income tax deductions impact his conclusion as to the owners of the property. He stated that it is common for people who own property as partners or jointly to arbitrarily decide who takes these deductions.
Showing the witness the policy of title insurance issued on July 1, 1991, the witness answered that the insurance policy insures the Husband as the sole owner and that this is at odds with the deed; a correct policy would insure the Husband as a one third owner. The witness testified that the Husband could not sell the Harlem property as the sole owner; he could sell it with two other parties or he could sell his one third interest. He stated that his company would not insure the Husband as the sole owners of the property.
On cross examination by the Wife's counsel, Mr. Zahler testified an agent for First American issued title. The witness did not receive the title report or the title abstract; he only reviewed the policy. He agreed that he would have no idea what documents are part of the judicial abstract file. The witness testified further that there is a date on the deed and a statement that says "Transfer Tax New York County" and the amount is $100; this he stated represents the New York State Transfer Tax which is based on consideration paid on April 30, 1992 and recorded July 11, 1991. To record a deed in 1991 one would have to present the TP584 form and New York City transfer documents. He agreed that in 1991 those documents would have to be signed and notarized by the transferor or grantor and the transferee and grantee, also, a multiple dwelling registration statement would have been required. Regarding the New York State combined real property transfer tax affidavit (pl. ex. 73) he answered that same would not have been accepted in the absence of social security numbers. If, however, Isabella Rosaline and SC did not have social security numbers, it is not uncommon for people to indicated "pending" or some other explanation.
Asked about Arthur Pulley and looking at the deed, the witness stated that "R and R" is "record and return to" which is typically the attorney representing the purchaser and that is Arthur Pulley. He agreed, based on his experience in the preparation or the completion of (thousands) of New York City real property transfer tax returns or New York State combined real property transfer tax affidavits that the title closer who appeared at the closing when the Husband acquired the property would have completed the form. He agreed that this form (together with other documents) would have been submitted to the recorder's office and would not have been accepted unless it was completed to a sufficient degree. Asked to look at the combined New York tax form (pl. ex. 73), and what type of property was conveyed, the witness answered "(a) transfer of real property where the consideration is less than $500,000 and which is neither (A) pursuant to a cooperative or condominium plan, nor (B) a partial or successive transfer pursuant to agreement or plan to effectuate by partial or successive a transfer which would otherwise be included in the coverage of Article 31-B of the Tax Law." As to the box marked for type of conveyance, the witness answered "three family house."
Showing the witness the Surrogate Court's petition to determine estate tax for the estate of WG (pl. ex. 79), he responded, that the petition states that the value of the real estate on the date of death (December 2, 1992) is $55,000 and that the date of transfer is July 11, 1991. The value of the property "could have" changed between date of death and date of recording of the deed. Looking at the signatures on the deed (pl. ex 73), the witness agreed that they appear to be the signatures of SC and I. Archer signing in their capacity as "party of the first part to the document." He agreed that on this form SC and Isabella Rosaline Archer are transferring to RC. Usually, the witness testified, consideration would not appear in a "non-fiduciary" deed; it does appear in fiduciary deeds. In the subject deed it tells us the consideration paid for the property is $25,000. The witness also agreed that the consideration in the New York State transfer tax form is $25,000 and First American Title Insurance Company issued a policy insuring the property in the amount of $25,000.
The witness agreed that the attorney for the buyer usually orders the title insurance and not a lay person. The insurance policy is in the name of RC. Referring to the title report it reads, he responded, "...name of insured, RC...the estate...is fee simple...title...is vested in RC, by a deed to the insured...duly recorded...." The witness answered that a fee simple interest is a form of ownership which is almost without exception. He agreed that a fee refers to the entire interest in property and which is not "defeasible" by condition or limitation; it is the greatest interest that can be granted in real property. The witness testified that he was not shown checks for payment of real estate taxes, the New York City Water Board, insurance premiums, construction work on the property, electrical work at the property, or checks paid to a city agency to remove violations on the property.
Asked to explain an "action to quiet title," the witness testified that it is a legal proceeding, commenced when there is a cloud on title; a person makes a claim that someone is the sole owner and that other parties and/or liens be discharged or dispensed with by court order.
DISCUSSION
"Evaluating the credibility of witnesses is primarily a matter committed to the sound discretion of the Supreme Court" (Varga v Varga, 288 AD2d 210 [2001], citing Diaco v Diaco, 278 AD2d 358 [2000]; Ferraro v Ferraro, 257 AD2d 596 [1999]). The court's assessment of the credibility of witnesses is entitled to great weight (see generally Wortman v Wortman, 11 AD3d 604 [2004]). "In a nonjury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion" (Ivani v Ivani, 303 AD2d 639 [2003], citing L'Esperance v L'Esperance, 243 AD2d 446 [1997]; accord Krutyansky v Krutyansky, 289 AD2d 299 [2001]; Diaco, 278 AD2d at 359; Solomon v Solomon, 276 AD2d 547 [2000]). Having reviewed all of the relevant facts and circumstances, the evidence submitted on the record, and having had the opportunity to assess the demeanor of the parties, the Court determines that the Husband presented as less credible than the Wife and raised issues of candor in his testimony. Indeed, it is the Court's distinct impression that the Husband's trial position shifted based upon his effort to place himself in an advantageous position and in direct opposition to his actions throughout the marraige. The Wife presented as poised and candid in her responses. Accordingly, the Court determines that it can rely on the Wife's testimony and evidence in evaluating the parties' long marriage and life together.
EQUITABLE DISTRIBUTION
In recognizing a marriage as an economic partnership, the Domestic Relations Law (DRL) mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the trial court to consider a number of statutory factors listed in DRL §236(B)(5)(d) (see generally Holterman v Holterman, 3 NY3d 1 [2004]). "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" ( Chalif v Chalif, 298 AD2d 348 [2002] [citations omitted]; accord Arvantides v Arvantides, 64 NY2d 1033 [1985]; Kelly v Kelly, 67 AD3d 577 [2010]).
DRL §236(B)(5)(d) provides that in determining an equitable disposition of property under paragraph c, the court shall consider:
(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 DRL §236;
(7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(8) the liquid or nonliquid character of all marital property;
(9) the probable future financial circumstances of each party;
(10) the impossibility or difficulty of evaluating any asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
(11) the tax consequences to each party;
(12) the wasteful dissipation of assets by either spouse;
(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(14) any other factor which the court shall expressly find to be just and proper.
Further, it is proper for the court to consider the parties' relative economic contributions to the marriage in arriving at a formula for the distribution of the marital property. (see e.g. Kaplinsky v Kaplinsky, 198 AD2d 212 [1993], citing DRL §236 (B)(5)(d)(1); Palmer v Palmer, 156 AD2d 651 [1989]; Michalek v Michalek, 114 AD2d 655 [1985]). In this regard, the fact that one party may have made greater economic contributions to the marriage than the other does not necessarily mean that the former is entitled to a greater percentage of the marital property (Bartek v Draper, 309 AD2d 825[2003]). Rather, " [e]quitable distribution presents matters of fact to be resolved by the trial court, and its distribution of the parties' marital property should not be disturbed unless it can be shown that the court improvidently exercised its discretion in so doing'" (Johnson v Johnson, 261 AD2d 439 [1999], quoting Oster v Goldberg, 226 AD2d 515 [1996], appeal denied 88 NY2d 811 [1996]).
Marital and Separate Property
DRL §236(B)(1)(c) defines marital property as "all property acquired by either or both spouses during the marriage and before ... the commencement of a matrimonial action, regardless of the form in which title is held" (see Seidman v Seidman, 226 AD2d 1011 [1996]; quoting Sclafani v Sclafani, 178 AD2d 830 [1991]).
Once property has been deemed marital, the Court must fix a valuation date. DRL §236 B(4)(b) provides in pertinent part: "...the valuation date or dates may be anytime from the date of commencement of the action to the date of trial." The court deems the parties' economic partnership to have dissolved at the commencement of the divorce action (Mensholam v Mensholam, 11 NY3d 24 [2008]; Anglin v Anglin, 80 NY2d 553 [1992]). The court has found that this rule "provides internal consistency and compatibility and objective verification, as opposed to uneven, ephemeral, personal interpretations as to when economic partnerships end" (Anglin v Anglin, 80 NY2d 553 [1992]). However, the court may take the specific circumstances of the case into account when ultimately deciding the equitable distribution of the parties' property ( Mensholam v Mensholam, 11 NY3d 24 [2008]). As to the valuation of specific assets, the court in Wegman v Wegman, 123 AD2d 220 (1986) found that "[i]f an asset increases in value due to market forces or inflation, valuation as of the date of commencement of the action would result in a windfall to the titled spouse and injustice to the other. If the asset greatly decreased in value ... a court which values assets might make a distributive award that is beyond the owner spouse's ability to pay (citations omitted)."
Thus, a passive asset is properly valued at the date of trial whereas an active asset may be more appropriately valued at an earlier time. The court noted "[a]n asset such as, for example, a business, might suddenly appreciate in value due solely to the efforts of the owner spouse. If a considerable period of time elapsed since the date of commencement or the date of separation, the court might be justified in establishing a valuation date earlier than the date of trial" (Wegman, supra).
Separate property, on the other hand, is defined, in part, as "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse" (DRL §236[B][1][d][1]). Separate property further includes increases in the value of separate property "except to the extent that such appreciated value of separate property is at all aided or facilitated by the nontitled spouse's direct or indirect efforts, that part of the appreciation is marital property subject to equitable distribution'" (Burgio v Burgio, 278 AD2d 767 [2000] quoting Hartog v Hartog, 85 NY2d 36 [1995]).
It is the nontitled spouse's burden to establish that the appreciation in value of a separate asset is marital property subject to equitable distribution (Morrow v Morrow, 19 AD3d 253 [2005]). "If the non-titled spouse seeks to share in the appreciated value of the titled spouse's separate property based solely on the non-titled spouse's indirect contributions, the Court of Appeals and ensuing decisional authority have imposed a rigorous dual-prong test upon the non-titled spouse, which must be satisfied conjunctively. The non-titled spouse must establish: "(1) evidence of his or her own causality — that is, a nexus between the non-titled spouse's indirect contributions and the appreciated property; in other words, the non-titled spouse bears the burden of proof to demonstrate the manner in which his or her own indirect contributions resulted in the increased value in the titled spouse's property; and (2) evidence quantifying the appreciation of the asset — that is, the non-titled spouse must quantify, via expert testimony, the amount of the increase attributable to his or her indirect efforts, including baseline values; conclusory allegations are absolutely insufficient." (Jeshiva v Gross, 23 Misc 3d 1122(A) [2009]). Where the nontitled spouse fails to establish the baseline value of the separate property and the extent of its appreciation, it is inappropriate for the court to award a distributive share of same to the nontitled spouse (Embury v Embury, 49 AD3d 802 [2008]; Morrow v Morrow, 19 AD3d 253 [2005]; Burgio v Burgio, 278 AD2d 767 [2000]; Albanese v Albanese, 69 AD3d 1005 [2010]). Testimony alone that premarital property or separate property funds were used to obtain an asset that was acquired during the parties' marriage "is insufficient to overcome the presumption that the property is marital property" (Marshall v Marshall, 91 AD3d 610[2012]).
Further, it is proper for the court to consider the parties' relative economic contributions to the marriage in arriving at a formula for the distribution of the marital property (see, e.g., Kaplinsky v Kaplinsky, 198 AD2d 212 [1993], citing DRL §236 (B )(5)(d)(1); Palmer v Palmer, 156 AD2d 651 [1989]; Michalek v Michalek, 114 AD2d 655 [1985]; Kobylack v Kobylack, 111 AD2d 221 [1985]). In this regard, the fact that one party may have made greater economic contributions to the marriage than the other does not necessarily mean that the former is entitled to a greater percentage of the marital property ( Bartek v Draper, 309 AD2d 825 [2003]). Rather, " [e]quitable distribution presents matters of fact to be resolved by the trial court, and its distribution of the parties' marital property should not be disturbed unless it can be shown that the court improvidently exercised its discretion in so doing'" ( Johnson v Johnson, 261 AD2d 439 [1999], quoting Oster v Goldberg, 226 AD2d 515 [1996], appeal denied 88 NY2d 811 [1996]).
Guided by the above case law, the Court assesses the parties' respective claims based upon the record and evidence presented at trial, makes the following findings regarding marital and separate assets, and sets values for same in the context of the discussion below.
The parties stipulated to the majority of the marital assets and their respective values at the commencement of the trial. In substantial dispute, however, is whether the Husband's acquisition of the Harlem property consisted of an interest in the entire property or a one third interest.
At trial the Husband amended the trial stipulation to reflect that his interest in the Harlem property is marital but that the issue remains the extent of the marital interest. He also concedes post trial that the disputed interest in the Harlem property was purchased with marital funds and is a marital asset. (See Defendant's closing statement pg 10). However he asserts that he purchased a one third interest in the property only.
Stipulated Marital Assets and Valuation
XXXX Avenue H
The parties stipulated that the marital residence is marital property subject to equitable distribution. The parties own this property free and clear of any mortgages.They further stipulated that two appraisals were conducted during this litigation, the first as of September 5, 2012 resulting in an appraised value of $525,000 and the second as of November 22, 2013 resulting in an appraised value of $500,000. The Husband attributes the decrease in value between the appraisals to a homeless shelter opening in the neighborhood and denies that same is related to the deteriorating condition of the home. Ultimately, the Husband's assertions are uncorroborated and merely speculative. However, the law is clear that the marital residence should be valued on a date as close to trial as possible (see e.g. D'Angelo v D'Angelo, 14 AD3d 476 [2005]). Accordingly, the Court values the marital residence at $500,000 based upon the November 2013 appraisal.
Wife's Retirement Assets
The parties stipulated that the Wife's NYCERS pension and defined benefit plan through her prior employer, New York City Human Resources Administration is marital property valued at $194,323.52. The Wife did not select an option at retirement that would preserve the Husband's interest should she predecease him. They stipulated further that her Banker's Trust Prior Plan through her former employer Deutsche Bank is marital property valued at $42,331.01. Both pensions are in payout status. Husband's Retirement Assets
The parties stipulated that the marital portion of the Husband's NYCERS pension and defined benefit plan through his prior employer, Metropolitan Transportation Authority is valued at $528,709.35. The Husband's pension is in payout status and he also elected the maximum monthly benefit with no death beneficiary. Bank Accounts Titled to the Wife
The parties stipulated that the below assets titled to the Wife are marital property subject to equitable distribution and valued as follows: AccountValue Chase #4921$554.27 Chase #4720$ 3,126.79 Chase #2949$ 1,481.38 Chase #3299$ 2,438.76 Chase #5163$48.96 Chase #1840$ 1,563.68 Chase #8658$ 10,865.00 Principal Financial Group #3107$ 20,937.40 HSBC #787-2$ 1,736.76 HSBC #512-6$64.48 HSBC #271-4$ 5,641.98 Total$ 48,459.40 Bank Accounts Titled to the Husband
The only issue as to the character of these accounts is whether the monies transferred by the Husband to his sister both before and after commencement of the action should be considered assets of the marital estate. The Husband asserts both during the trial and in summation that the Wife was aware of, and consented to the monies he transferred to his sister, PW pre commencement, therefore these monies should not to be included in the marital estate subject to equitable distribution. Further, that so much of the monies transferred post commencement were, by operation of law, not marital and should not be considered by the Court in equitable distribution.
The Court finds the Husband's testimony regarding the Wife's knowledge and consent to these transfers to be incredible. He offered various reasons for the transfers including medical costs for his niece and compensation for injuries to his niece caused by his son. These explanations are contradictory and inconsistent. The Court finds a complete absence of credible proof that there was any legitimate basis for the transfers of significant liquid marital assets immediately preceding commencement of the action. Rather, the Wife's testimony that she was unaware of these transactions and did not consent to the Husband's actions is credible. Indeed, the timing and amount of these transfers indicate decisively that these transfers of money prior to commencement was an effort by the Husband to secret marital assets away from the Wife and constituted a "transfer in contemplation of the matrimonial action without fair consideration" (DRL §236(B)(d)(d)(13). The action was commenced May 8, 2012. The Wife vacated the marital residence on or about March 12, 2012 and the first acknowledged transfers of assets totaling $112,800 occurred on March 20 and March 21, 2012. The Court finds that these pre commencement transfers of funds constitute a dissipation of marital assets in contemplation of divorce (see Buschbaum v Buschbaum, 292 AD2d 553 [2002]; Ferraro v Ferraro, 257 AD2d 596 [1999]). After the action was commenced on May 8, 2012, the Husband transferred an additional $96,800 in violation of the automatic orders under DRL §236B(2)(b)(1)-(5). The Court concludes that the entirety of these monies are to be considered marital and subject to equitable distribution.
In determining the value of those accounts from which the Husband transferred funds pre commencement, the Court relies on the bank statements in evidence which provide values just prior to the Husband's transfers. For those accounts from which the Husband transferred funds post commencement and for all other accounts/assets titled to the Husband and acquired during the marriage, the Court relies on the values closest to the date of commencement. Account ExhibitValueAs of Chase #7500Pl. 43$65.385/03/12 Chase #9720Pl. 43$ 88,966.923/05/12 Chase #4822Pl. 44$1,452.013/05/12 Chase #1995Pl. 44$ 101,698.153/05/12 Chase #5900Pl. 44$ 90,842.683/05/12 Chase #6607 (IRA)Pl. 45$ 16,917.004/30/12 Chase #0436 (Money Market)Pl. 46$ 10,727.006/30/12 Principal Financial Group #8347Pl. 47$ 127,021.557/02/12 US Life Annuity #2973Pl. 48$ 45,642.805/16/12 US Life Annuity #335CPl. 49$ 260,872.003/21/12 American General IRA #2702Pl. 50$7,249.615/06/12 Total$ 751,455.10 XXX West 131st Street (Harlem Property)
As corroborated by the bank statements in evidence and the Husband's testimony, the Husband transferred funds from the following accounts: Chase #9720, #5900, #1995.
The most significant asset in dispute is the Harlem property and, specifically, the extent of the Husband's ownership interest in same. While the Husband did, during the course of the trial change his position and ultimately stipulate that his interest in the Harlem property is marital and therefore subject to equitable distribution, he maintains that he is only a one-third owner of the property and the Court is constrained to distribute only that portion of his interest. The Wife however, maintains that the Husband is the sole owner of the property such that the entirety of the asset is subject to equitable distribution.
At times the Husband testified that he purchased a third of the property from I. Archer and that his mother, SC, "gifted" her interest to him, he also testified, that the property was purchased with pre-marital separate property thus rendering the property his separate property. Suffice it to say that he failed to meet his burden of proof to establish that any portion of the property was gifted to him or that he purchased his interest in the property with separate monies.
To consider the parties' respective claims and the Court's ability to distribute this asset, it is appropriate to review the evidence relative to the acquisition and upkeep of the property. The facts are not disputed that the Harlem property was originally owned by members of the Husband's family, Ione and WG (brother and sister) who were SC's cousins (the Husband's mother). William and Ione owned the Harlem property as "joint tenants" having been deeded the property on February 21, 1967, by Ione Gaskin as Executrix of the Estate of William Mortimer Gaskin who died in July 1962 (pl. ex. 5) . When Ione Gaskin died on November 28, 1986, the property passed by operation of law to WG who died a few days later on December 2, 1986 (pl. ex. 81).
Upon WG's death, SC filed a petition dated May 26, 1987, in the Surrogate's Court for Letters of Administration alleging that she is a first cousin of the decedent, as is Sir C. Archer, who according to the petition resides at Graeme Hall Tenance, Christ Church, Barbados, West Indies (pl. ex. 75) . In the petition, Sybil Archer states that Sir C. Archer is old and infirm and therefore unable to act as an administrator of the Gaskin estate. Of particular concern to SC as raised in her petition, is the "turmoil" in the property caused by roomers who have "wrecked the interior of the building" and do not pay rent (pl. ex. 78). The Surrogate's Court granted her petition on July 6, 1988 and directed that a decree be submitted on notice which decree was signed on or about September 7, 1988 (pl. ex. 76). Throughout the Surrogate Court proceedings, SC was represented by Arthur L. Pulley, Esq., who has been described by the Husband as the family's attorney. Both SC and Pulley are now deceased.
By order dated July 6, 1988, the Surrogate Court stated that "letters of administration shall issue to decedent's cousin, SC, upon her duly qualifying according to law." By decree dated September 7, 1988, the Surrogate Court granted "Letters of Administration of the goods, chattels and credits which were the property of the deceased, WG [to] SC."
On or about December 15, 1989, SC submitted a "Petition to Determine Estate Tax under Art. 26 of the Tax Law" to the Surrogate's Court (pl. ex. 79). This document recites that both SC and Sir C. Archer as first cousins are the individuals who receive the benefits from the estate, each to receive one half. The Harlem property is listed as the only real estate with a value as of the date of death being $55,000. The property is described as a three story converted dwelling or rooming house with an assessed value of $6,800. The estimated market value as of the date of Gaskin's death was established by the submission of a June 9, 1989 real estate appraisal conducted by Laurence W. Holland, Member, New York State Society of Real Estate Appraisers in the context of the Surrogate Court proceeding (pl. ex. 80) . The appraisal states that "(d)ue to the nature of this assignment, no interior inspection was made." The appraiser did not certify to the condition or quality of the interior of the property; it was a "windshield" survey of the property only.
The deed conferring an interest in the Harlem property to the Husband reads as follows: "This indenture made the 30th day of April 1991, between SC residing at XX Coolidge Street, Irvington, New Jersey 07111, and I. Archer, residing at XX Graeme Hall, Terrace, Christ Church Parish, Barbados as Administratrix of the estate of WG late of XXX West 151 Street, New York, New York who died intestate on the 2nd day of December 1986 party of the first part, and Isabella Rosaline Archer, being co-grantor of said property, along with Sybil O. C[.], administratrix, and R[.] S. C[.], XXXX Avenue H. Brooklyn, New York 11210 party of the second part Witnesseth that whereas letters of administration were issued to the party of the first part by the Surrogate's Court, County of New York on September 8, 1988...and in consideration of ...$25,000 lawful money of the United States paid by the party of the second part...release unto the party of the second part and assigns forever, all... Said premises being known by the Street No. XXX West 131st Street..." (Emphasis added) The deed is signed "(i)n Witness Whereof, the party of the first part has duly executed this deed the day and year ...SC and I. Archer.
With the exception of the above deed and the real property transfer gains tax affidavit, there is no documentation identifying or explaining the role of I. Archer. However, she is referred to at trial as Sir C. Archer's wife and presumably inherited his interest in the Harlem property (Gaskin estate) upon his death. No other Surrogate Court documents indicate Isabella's interest in the Gaskin estate nor are any documents offered from Barbados where Isabella and Sir C. Archer resided, such as a marriage certificate or death certificate. I. Archer is also deceased.
While the date of Sir C. Archer's death was not made clear at trial, based on the documents in evidence, his death occurred some time between December 1989 and April 30, 1991.
In evidence is a handwritten document identified as the "Winter Family Tree" which lists Ione as having been married for one month but her union annulled and shows Sir C. Archer with no further familial information such as a marriage or any issue (pl. 89).
All documents issued after the April 30, 1991 deed refer to the Husband as the "transferee/grantee" and Sybil and Isabella as the "transferor" or "grantor". The combined real property transfer gains tax affidavit dated May 9, 1991 states that only the Husband is the grantee (both on Schedule A, Information Relating to Conveyance and on that part of the document designated "Signature and Affirmation") (pl. ex. 73). The Department of Housing Preservation and Development property registration forms indicate that the form of ownership is individual and the Husband is the only individual owner (pl. ex. 74). On July 1, 1991, the First American Title Insurance Company of New York issued a policy of title insurance, naming RC as the insured and the estate or interest covered by the policy as "A Fee Simple" with a coverage amount of $25,000, consistent with the consideration the Husband paid for his interest in the property on the date of conveyance.
Only marital monies were used to purchase and maintain the Harlem property. Since the Husband's acquisition of his interest in the Harlem property no other family member made any contribution to the maintenance of the property. The Husband alone, with marital funds, paid the real property taxes, water, sewer, electric and property insurance bills (pl. exs. 10, 10A, 11, 12, 82 and 90). The record also establishes that renovations and general upkeep were paid solely from marital funds and at the discretion of the Husband. All tax benefits were claimed by the Husband and the Wife on their jointly filed tax returns and when the parties no longer filed a joint return, the benefit was claimed by the Husband separately. Additionally, the Husband has deliberately kept the property vacant. His allegation that he holds the property for his "family" and that he will be reimbursed for what he has laid out for the property over the last twenty five (25) years appears remote as there is absolutely no evidence that the Husband has ever sought a contribution from anyone other than the Wife.
Ultimately, however, the Court determines that it is bound by the language on the deed which states that SC and I. Archer are parties of both the first part and also parties of the second part together with the Husband. With the exception of the deed, no other evidence is provided to establish that the Husband's extended family has any interest in the Harlem property. While neither party disputes the wording of the deed, each party asks the Court to arrive at a different conclusion. The Wife asks that the Court ignore the language of the deed and rely on the other documents in the record, including the title insurance policy to find that the Husband is the sole owner of the entire Harlem property. The Husband submits that he has only a one third interest in the property based upon the deed which states that he is a party of the second part together with his SC and I. Archer and therefore he now owns the property as tenants in common with unnamed relatives (as Sybil and Isabella are deceased).
Turning to character of the Harlem property, the Court reiterates that the instant proceeding is a matrimonial matter. The pleadings are limited to what the Court can determine between these two parties. Acknowledging that while the Court has the authority in an action for divorce to "determine any question as to the title to property arising between the parties," (DRL § 234 (1)) the Court is unable to make any determination as to title to property that may affect non parties who are not before the Court (i.e. any heirs to I. Archer and SC). As neither party commenced any further proceeding during this length litigation to address the ambiguity in the deed to the Harlem property and seeks to have this Court make findings relative thereto, the Court concludes that it remains bound by the clear language of the deed. Thus, the Court finds that the Husband held the property as tenants in common with his mother, Sybil, and I. Archer, or their heirs as "a disposition of property to two or more persons creates in them a tenancy in common, unless expressly declared to be a joint tenancy" (EPTL §6-2.2(a)). In fact, both parties experts agree that the language of the deed is clear. However, the Wife's expert opines that the deed was not well drafted and should be overlooked in consideration of additional evidence establishing the Husband's interest to be that of a fee simple absolute.
While finding in favor of the Husband, the Court rests on the language of the deed. So while the Wife may be prepared to address this issue in a subsequent proceeding to quiet title, the Court finds now that the law is clear and the parties are bound by the Court's determination that the Husband's ownership is limited to a one third interest in the property. The Court thus addresses the ambiguity in how the property is to be distributed in greater detail below.
Having found that the Husband has a one third (marital) interest in the Harlem property, the Court turns next to valuation. The parties stipulated that as of November 22, 2013, the value of the Harlem property was appraised at $566,000. However, at trial, the parties consented to the Wife's introduction of a Manhattan Appraisal Company, Inc. appraisal of the Harlem property as of October 17, 2014 valuing the property at $785,000 (pl. ex. 9). This provides the Court with a value closest to the date of trial as is appropriate in valuing real estate (Donovan v Szlepcsik, 52 AD3d 563 [2008]). Thus, the marital portion (one third) of the total appraised value of the Harlem property is $261,667.
The parties' one third interest has been rounded to the nearest dollar amount.
Notwithstanding this finding, the Court has determined that despite the Husband's interest as determined by the language of the deed, he has held himself out as the sole owner, having purchased his interest in same with $25,000 of marital monies, and has continued for more than twenty years, to use marital monies to maintain, restore and renovate the entire property without any contribution from those who he now asserts are co-owners. Further, the Husband exercised complete control over this property and declined to make any effort to rent out any/all of the apartments. Instead, he deliberately kept the property vacant thereby foreclosing on any opportunity to recoup monies expended to maintain same. During the course of the marriage, the Husband has expended thousands upon thousands of marital dollars to maintain the entirety of a property which at trial he asserts he holds only a one third interest in. As the Court has found that no other member of the Husband's family other than the Wife has contributed towards the upkeep of the Harlem property, the Court finds that an unequal distribution of the marital portion of this asset is appropriate as set forth below.
As discussed further herein, both Avenue H and the Harlem property had and have the potential to be significantly income producing.
Discussion
Having determined values for the above assets comprising the marital estate, the Court turns to the various factors set out in DRL §236(B)(5)(d) in determining the parties' respective distributive awards. At trial and in her summation, the Wife seeks an equal division of the marital estate, taking the position that the Harlem property is entirely marital. She also requests exclusive use and occupancy of the marital residence. The Husband, on the other hand, seeks an unequal distribution of the marital estate in his favor based upon his position that he shouldered the financial responsibility of supporting the family and their extended family with little financial contribution from the Wife. Specifically, with the exception of the parties' pensions which he agrees should be equally distributed, the Husband requests a distributive award amounting to 65% of the value of the marital estate with the remaining 35% to be distributed to the Wife. Further, the Husband requests full ownership and exclusive use and occupancy of the marital residence. Noting the parties' disparate positions as to allocation of the marital assets, the Court considers the within factors.
Duration of marriage and health of the parties
This is a marriage of long duration (44 years) during which the parties had one son, approximately 46 years old as of the date of trial. At the time of commencement, the Husband was approximately 72 years old and the Wife was approximately 69 years old. Both parties testified to various health issues that arose during the marriage; the Wife has myasthenia gravis, a weakness of her muscles and the Husband was diagnosed with prostate cancer in 2005. Neither party disputes the other's assertions of their health.
Throughout the marriage, the parties accumulated a modest marital estate comprised of the marital residence (mortgage free), an interest in the Harlem property (mortgage free), pensions through their respective employers and varied bank accounts. The parties agree that each worked consistently from the date of marriage (1969) until their retirements in 2005 (Wife) and 2006 (Husband). The Court finds that both parties' incomes were used throughout the marriage to meet marital expenses and support the family. The parties agree that there was not a strict arrangement on how funds were apportioned but it is clear that marital expenses were met, the parties amassed no debt, they lived modestly with regard to vacations and material items, and generated sufficient income from employment without the need to rent out the second apartment in the marital residence after the original tenant relocated several years ago; nor did the Husband ever utilized the Harlem property to generate additional income.
Income and property of each party at the time of marriage and at the time of commencement
Neither party testified to property at the time of marriage however, the martial residence was purchased in 1980 and the martial interest in the Harlem property was acquired in 1991. Neither party specifically testified as to their various incomes throughout the marriage. However, they stipulated that each was employed as a W-2 wage earner from the year of marriage (1968) until their respective retirements as stated above (Court ex. II). As of the date of commencement, both parties' pensions were in payout status and neither party opted for a death beneficiary to protect the other's interest after his or her death. They further stipulated that the Wife's two pensions (NYCERS and Bankers Trust Prior) have a combined value of $236,654.53. As reported in her 2012 tax return (the year of commencement), the Wife's annual income from her pensions and social security benefits totaled $31,845. Similarly, the parties stipulated that the Husband has one pension (NYCERS), the marital portion of which is valued at $528,709.35. As reported in the Husband's 2012 tax return, his annual income derived from his pension and social security benefits totals $114,795 plus additional income of $2,116 for total income in 2012 of $116,911 (pl. ex. 16). Another, smaller pension with the Electrical Worker's Union was revealed during discovery but the Wife has since waived her interest in same.
This additional income was derived from interest, ordinary dividends and IRA distribution.
The Husband testified that he receives a pension payment of $58.37 per month from this pension.
Future earning capacity of the parties
As stated above, both parties were retired as of the date of commencement. Since retirement, their incomes have been comprised of pension and social security benefits, and nominal interst income from various bank accounts/assets. Any future earning capacity is likely limited to the potential for rental income from the martial residence or the Harlem property.
Need of either party to occupy the marital residence
Neither party has a specific need to occupy the marital residence. However, the Husband's request for exclusive use, occupancy and ownership is premised on the Wife having voluntarily vacated the home in March 2012 and having agreed to relocate to Virginia upon receiving a $100,000 advance on her share of equitable distribution. The Wife's request for same is premised on her health and the marital residence's proximity to transportation and shopping hubs, which she argues is necessary in light of her diminishing ability to drive. The Court notes that the only medical records in evidence relate to the Wife's dental, oral and vision care (pl. exs. 34, 35, 37, 38).
Loss of retirement and health insurance benefits
Both parties have been in payout status since their respective retirements. Further, each party elected to receive the maximum distribution at that time and did not select the other as the death beneficiary of his or her benefits. At the time of commencement, both parties have Medicare and additional health benefits as New York City retirees.
Liquid and non-liquid character of marital property
The vast majority of the marital estate is comprised of non-liquid assets:
Tax consequences to each party
No testimony was elicited as to the tax consequences to either party based upon their respective requests for equitable distribution with the exception of the parties' stipulation before Justice Richter. However, in her summation, the Wife submits that the Husband's withdrawal of $100,000 from an annuity and paid to her to assist her in moving to Virginia and pay for related living expenses, caused the Husband to incur unnecessary tax consequences (pl. ex. 52). The Wife argues that these funds could have been taken from a bank account without incurring penalties and that the Husband failed to present evidence at trial of the specific tax consequences incurred as a result of this withdrawal.
The Court does not find merit in the Wife's argument that the Husband should be allocated 100% of the tax penalty for this withdrawal. The parties appeared before Justice Richter and resolved the Wife's application for a temporary order of protection and the Husband's cross motion for pendente lite exclusive use and occupancy of the marital residence. The parties were sworn in, the terms of the agreement were placed on the record and the parties were allocuted on same. It was clearly stated on the record that the parties agree the funds would be withdrawn from an annuity and that the taxes that will be incurred from the withdrawal will be the "joint responsibility of the parties" and that "this total of one hundred thousand dollars, including any tax consequences, is subject to reallocation...if an equitable distribution trial is ordered...." The parties' agreement also included that the monies would be paid to the Wife to "assist her in moving and living expenses in Virginia" (pl. ex. 52).
Regardless of the tax consequences incurred and the Court's ultimate distribution of same, it is disingenuous for the Wife to assert that the Husband unilaterally chose to withdraw the funds from an annuity rather than making a penalty-free withdrawal. The parties' agreement, to which each was sworn and allocuted, clearly states the type of account from which the funds would be withdrawn- an annuity. Moreover, it is undisputed that the Wife did not relocate to Virginia such that the entirety of the funds were utilized here in New York, as she saw fit, although same were earmarked under the terms of the agreement to be used to relocate to Virginia and "her living expenses in Virginia." The ultimate allocation of these funds and penalties is addressed below.
Wasteful dissipation and the Husband's transfer of marital funds in contemplation of divorce and post commencement
In determining an equitable disposition of property the court must consider the wasteful dissipation of assets by the Husband (DRL 236[B][5][d][12]; Renck v Renck, 131 AD3d 1146 [2015]). Further, economic misconduct may properly be considered by the trial court (Contino v Contino, 140 AD2d 262 [1988]). As is relevant here, economic fault consisting of dissipation of assets, or other conduct which unfairly prevents the court from making an equitable distribution of marital property, has generally been considered relevant to the distribution (Blickstein v Blickstein, 99 AD2d 287 [Dept.1984]). As discussed above, the Husband's dissipation of liquid marital funds by way of transfers to his family just prior to, and after commencement of the action is traceable and the Court has recaptured these sums to be considered as part of the marital estate.
However, the Court finds that the Husband's treatment of the Harlem property throughout the marriage also amounts to dissipation of marital assets. Notwithstanding the Court's finding that the marital portion of this asset is determined by the language of the deed and that any ambiguity could not be resolved without further proceedings from which the parties are now foreclosed, the Court looks to the management of this property during the marriage. While the Husband maintained at trial that his conveyed interest is limited to one-third of the value of the Harlem property, from the date his interest was acquired in 1991, he has held himself out as the sole owner of the property. With the exception of the deed, every document filed thereafter indicates that the Husband is sole tranferee/grantee and in fact, the title insurance policy secured for the property insures the Husband's interest in fee simple. Moreover, the Husband has always facilitated any renovations and/or upkeep to the property and pursued the potential sale of the property without any contribution or input from the purported co-owners.
As the Court has now determined the parties' marital interest in the property, neither the Husband nor the Wife can seek to quiet title. Indeed, the Husband too is bound by the Court's determination that he owns a one third interest in the Harlem property with the remainder co-owned with unnamed family members.
Perhaps most relevant to the issue of equitable distribution is the Husband's use of martial funds to maintain the property for more than twenty years (1991-2012) prior to commencement. The Husband testified and the evidence supports that the Husband has always paid any and all expenses on the property, including, sewer, water and electric bills, property taxes and carrying charges with marital funds.
In light of the above, the Court finds credible the Wife's claim that she was led to believe that she and the Husband were the sole owners of the Harlem property as it was they who took on the sole responsibility, financially and otherwise to maintain the property. In fact, the Husband's position shifted throughout the litigation possibly as a result of the legal advice he received or in response to the Husband's representation to counsel. In a sworn affidavit in support of his cross motion he states, "[m]y mother's interest in the property was gifted directly to me and I paid I. Archer for her share of the property with $25,000 in marital funds" and then references as the annexed exhibit the deed to the Harlem property (pl. ex. 108). So while at this time the Husband took the position that the gifted portion of the property is his separate property, he maintained that he was the sole owner of the whole- one third of which he purchased and the remainder of which he was gifted or inherited, such that only a portion of the property was subject to equitable distribution. It is only much later in the litigation that the Husband asserted only a one-third ownership interest in the property and relied on the deed to support his position.
In finding the Wife's belief to be well founded based on the Husband's actions since 1991, the Court leaves to the Husband any expectation of reimbursement for monies he expended on the property. Ultimately, the Court finds that the Husband's use of marital funds over the course of twenty years to maintain the entirety of a property that he only now asserts at trial he has a one-third interest in amounts to dissipation of marital assets. Distribution The total value of the marital estate, comprised of the parties' bank accounts, annuities, pensions and real estate totals $2,326,945. After consideration of the above factors set forth in DRL §236(B)(5)(d), the Court finds that with the exception of the Harlem Property (discussed herein), an equal division of the marital estate is appropriate as follows:
The Court has rounded this value to the nearest dollar.
Bank Accounts and Annuities
The Court concludes that the bank accounts and annuities held by the parties at commencement and including the monies transferred by the Husband to his sister should be divided equally. This is consistent with the Wife's request. In light of the factors detailed above, the Court finds no merit in the Husband's request for the Court to consider an unequal distribution of marital assets in his favor. The total value of the bank accounts, annuities and IRAs as set forth above is $799,915. The parties' respective fifty percent (50%) share of same amounts to $399,957.50. To calculate the monies to be distributed to the Wife, based upon the parties' trial stipulation, the Court deducts $48,459.40 from this sum representing the value of accounts already titled to the Wife to which she shall retain sole title and interest. The Court further deducts $100,000 representing monies received and utilized by the Wife in accordance with the parties' agreement before Justice Richter. Thus, the remaining cash to be distributed to the Wife amounts to $251,498.
The Court has rounded this value to the nearest dollar.
$399,957.50 - $48,459.40 - $100,000 = $251,498.
Real Estate
XXXX Avenue H
As previously determined, the marital residence is valued at $500,000 based upon the appraisal conducted closest to the date of trial. The value of this asset shall be distributed between the parties equally or, $250,000. While there is no overly compelling reason for either party to remain in the marital residence, they do not agree to place same on the market and distribute the proceeds from any sale.
Thus, the Court considers each party's request for exclusive use and occupancy although it need not restate the parties' respective positions as set forth in the discussion of DRL §236(B)(5)(d) above. The Wife's request for exclusive use and occupancy of the marital residence is denied. It is not disputed that the Wife vacated the martial residence in March 2012, just prior to the commencement of the action. Thereafter, in the context of resolving motion practice, the Wife agreed to relocate to Virginia upon receipt of a $100,000 equitable distribution advance to fund the relocation. While the Court finds credible the Wife's explanation for remaining in New York, she nonetheless did not move to vacate the parties' agreement (which awarded the Husband pendente lite exclusive use and occupancy) for permission to reenter the home. Rather she continued to reside outside the marital residence, securing comfortable housing in a location and at a price that she deemed appropriate utilizing the $100,000 advanced to her to relocate to Virginia. Moreover, the Court calls into question the Wife's current request premised on her deteriorating health as this was a condition that existed pre commencement and throughout the litigation but which she only asserts now as a basis to award her exclusive use and occupancy.
The Husband on the other hand has continued to reside in the marital residence throughout this action. He has maintained the fixed expenses on the home and represented a willingness to obtain a mortgage on same if necessary to buy out the Wife's interest. Accordingly, the Wife is awarded a 50% interest in the value of the marital residence, which 50% interest amounts to $250,000. The Husband is awarded exclusive use and occupancy of the home contingent upon his ability to satisfy the Wife's distributive award within sixty (60) days of service upon him of the judgment of divorce with notice of entry in the Office of the Kings County Clerk. Upon failure to pay same, the marital residence shall be placed on the market for sale and the value of the property will then be determined by what the real estate market will bear. The net proceeds from the sale, after usual and customary closing costs and capital gains taxes, if any, shall be divided equally between the parties and then offset by any monies owed the Wife to satisfy her total distributive award. The Wife is to remain on the deed to the property until such time as her entire equitable distribution award is satisfied in full. Thereafter, she shall cooperate in transferring her ownership interest by deed to the Husband or his heirs/assignees.
XXX West 131st Street (Harlem Property)
As previously determined, the Husband is only a one third owner of the Harlem property such that the Court cannot direct the sale of same. However, in light of the extensive discussion as to how the Husband treated this property and expended monies during the marriage the Court finds further that an unequal distribution of the marital value of this property in favor of the Wife is appropriate. The Husband held himself out as the sole owner, used marital funds to take on the entire financial and maintenance obligations without seeking any contributions from "co-owners," and deliberately kept the property vacant while expending significant marital funds to upkeep the property, conduct which the Court finds he did without disclosing to Wife that he was only a one third owner, and conduct which the Court finds amounts to wasteful dissipation of the parties' marital assets during the course of over twenty (20) years. Accordingly, the Wife is awarded 75% of the value of the parties' one third interest in the Harlem property, which 75% interest amounts to $196,250.
$261,667 x 75% = $196,250.25 rounded to the nearest dollar.
Pensions
As previously stated, both parties' pensions were in payout status at the commencement of this action and neither party selected a survivor benefit should they predecease the other. As a result, both parties' incomes are comprised of the maximum monthly pension payments plus their respective social security benefits.
At trial, the parties stipulated to the Lexington Pension Consultants appraised values as follows: $194,323.52 (Wife's NYCERS), $42,331.01 (Wife's Bankers Trust Prior), $528,709.35 (Husband's NYCERS). The Wife's gross monthly payment from both of her pensions total $1,130 (pl. ex 63). The Husband's gross annual pension benefit is $43,539.96 or $3,628 per month (pl. ex. 61).
The sum has been rounded to the nearest dollar.
While the appraisal of the Wife's pension states her gross monthly pension payment, the Husband's pension appraisal report calculated same on gross annual basis which the Court has divided by twelve to determine his gross monthly payment pension benefit.
The parties did not initially retain Lexington Pension Consultants to conduct an offset analysis of the parties' respective pensions. However, after the trial, counsel for the parties appeared for a conference with the Court at which time the Court issued an order directing Lexington Pension Consultants to conduct an offset analysis of the parties' pensions "assuming an equal division pursuant to Majauskas v Majauskas (50/50), which analysis shall be relied upon by the Court in its decision after trial (order dated January 12, 2016)." Thereafter, the parties stipulated that the Court's order and resulting offset analysis be deemed Plaintiff's exhibits 116 and 117, respectively.
Pursuant to the offset calculations, 50% of the marital portion of the Husband's benefits owed to the Wife is $264,354.68; 50% of the martial portion of the Wife's benefits owed to the Husband is $118,327.27 such that the Wife's reduced share of the Husband's NYCERS benefit after an offset amounts to $146,027.41. To effectuate an equal distribution of the parties' pension pursuant to Majauskas, the Wife's reduced share of the Husband's pension was divided by the total present value of the Husband's pension as of the cutoff date (May 8, 2012) to determine that her offset percentage of the marital portion of the Husband's pension is 25.36% (pl. ex 117). Accordingly, to equalize the parties' monthly pension benefits owed to the other based upon this Court's finding that the marital portion of the pensions should be divided equally, the Wife retains the entirety of her monthly payments and receives 25.36% of the Husband's monthly pension payments, or $920 per month. Based upon this distribution, the Wife's resulting income from both her and the Husband's pension benefits amounts to $2,050 per month and the Husband's income from pension benefits amounts to $2,780 per month.
$264,354.68 - $118,327.27 = $146,027.41.
$146,027.41 ÷ $575,873.42 = 25.36%
$3,628 x 25.36 % = $920.
The Court notes further that pension benefits acquired during the marriage constitute marital property and are an asset that both spouses expect to enjoy at a future date (Kraus v Kraus, 131 AD3d 94 [2015]. Indeed, the Court may provide for payment of pension benefits to the nonemployee spouse which accumulated between the date of the employee spouse's retirement and the date of issuance of the qualified domestic relations order (QDRO) (id.). As the parties here were in payout status at the time of commencement, the Court need only address the retroactive pension benefits owed to the Wife from the date of commencement through the date of issuance of the QDRO. Accordingly, absent a post trial stipulation between the parties, retroactive equitable distribution of the Husband's pension benefits owed to the Wife (to be calculated at $920 per month from May 8, 2012 through the date of issuance of the QDRO) shall be paid at an additional rate of $200 per month until satisfied in full (Kraus v Kraus, 131 AD3d 94 [2015]; Boylan v Dodge, 42 AD3d 632 [2007]; Peek v Peek, 301 AD2d 201 [2002]).
To effectuate equitable distribution of the Husband's NYCERS pension, the Wife shall prepare a qualified domestic relations order (QDRO) consistent with the offset analysis set forth in the February 4, 2016 report (pl. ex. 117) such that the Wife's retirement benefit shall be reduced/offset against the marital portion of the Husband's NYCERS benefit, so that the Wife shall receive 25.36% of each monthly pension benefit the Husband receives from NYCERS plus an additional $200 per month representing retroactive pension benefits owed to the Wife from May 8, 2012 through the date of issuance of the QDRO. The Wife shall be entitled to this benefit pursuant to the formula set forth in Majauskas v Majauskas, 61 NY2d 481 (1984). The QDRO shall be prepared in accordance with the terms of this decision and shall be submitted to the Plan Administrator for processing. The parties shall cooperate in having the aforesaid order qualified, shall execute and deliver necessary documents, and shall take whatever steps that are required to have the order qualified.
The parties shall share equally in the cost of preparing the QDRO and the Wife shall submit same to the Court on notice to the Husband's counsel within sixty (60) days of entry of the judgment of divorce with notice of entry in the Office of the Kings County Clerk.
Personalty
The record includes only general testimony regarding the parties' personalty, including various jewelry items and the contents of a home safe. However, neither party presented evidence and/or documentation regarding the value of same. Accordingly, the parties may retain whatever personalty remains within their personal possession.
Debt
In addition to distribution of assets, the Court is also obligated to address marital debt (Conway v Conway, 29 AD3d 725 [2006], Le v Le, 82 AD3d 845 [2011]; Epstein v Messner, 73 AD3d 843 [2010]). Expenses incurred prior to the commencement of an action for divorce are marital debt to be equally shared by the parties upon an offer of proof that they represent marital expenses (Epstein v Messner, supra). Expenses incurred after commencement of an action for divorce are, in general, the responsibility of the party who incurred the debt (Id). Where a party has paid the other party's share of what proves to be marital debt, reimbursement is required (Id). The Court has broad discretion in allocating marital debt and liability need not be equally apportioned, but may be distributed in accordance with the principles of equitable distribution set forth in DRL §236(B)(5)(d) (DiFiore v DiFiore, 87 AD3d 971 [2011]).
The parties stipulated that they do not have any debt or that any such debt is nominal in value and therefore neither seeks reimbursement of same. However, the Court must address the tax penalty incurred as a result of the $100,000 withdrawn from an annuity pursuant to the parties' agreement before Justice Richter. The Wife argues that the Husband failed to establish the value of this penalty at trial. The Husband testified that he incurred a $13,559.53 tax penalty as established by his 2012 federal tax return and in his summation he seeks a minimum of a 50% reimbursement for same.
Upon review of the record, the Court finds that the Husband has failed to establish the amount of the 2012 tax liability specifically allocated to the withdrawal of $100,000 from various annuities. Specifically, the Husband's 2012 1099-R statements show a distribution of $60,000 with a taxable sum of $28,219.96 from Principal Life Insurance Co. and a separate distribution of $40,000 with a taxable sum of $20,206.95 from The United States Life Insurance Company (def. ex. V). While the Husband testified that the penalty from the total withdrawal of $100,000 amounted to $13,559.53 and his counsel's summation states that the taxable sums were impacted at 28% to arrive at this number, same is not clearly substantiated by the Husband's 2012 tax return (of which the Court has only his Form 1040 and Schedule A). The Husband's 2012 federal tax return shows taxes owed of $21,545 and as additional 2012 1099-R forms indicate, the Husband took various other distributions in this tax year. Thus, the Husband has failed to establish the value of any penalty specific to the $100,000 withdrawal. Moreover, there is no explanation as to how counsel arrived at a tax impact of 28% and his summation does not constitute evidence. From there it follows that the Court is unable to assign a specific value and allocate same between the parties.
($28,219.96 + $20,206.95) x 28% = $13,559.53.
Effectuating Equitable Distribution
The Husband shall satisfy the Wife's distributive award of $697,748 representing distribution of the value Avenue H and the Harlem property, as well as the liquid assets contained in the various bank accounts and annuities titled to him within sixty (60) days of service upon him of the judgment of divorce with notice of entry in the Office of the Kinds County Clerk. Upon failure to pay same the Wife may move for judgment with interest to accrue at the statutory rate and the marital residence shall be immediately placed on the market for sale, the value of the property to be determined by what real estate market will bear and the proceeds to be divided between the parties as set forth above and with any additional proceeds, if any , above the trial value, to be shared equally between the parties.
$251,498 (liquid assets) + $250,000 (Avenue H) + $196,250 (Harlem property) = $697,748.
To effectuate the offset distribution of the Husband's NYCERS pension, the Wife's counsel shall settle the proposed QDRO on notice to the Husband's counsel within sixty (60) days of the date of the judgment of divorce with notice of entry in the Office of the Kings County Clerk together with the proposed findings of fact and conclusions of law and judgment of divorce consistent with the within decision.
The Court also notes that by order dated November 25, 2014, the Husband was directed to name the Wife as the sole and primary beneficiary of his AIG Life/AIG Policy #4D93C0335C. Upon full satisfaction of the Wife's distributive award, inclusive of execution of the QDRO, this restraint shall be lifted and the Husband shall be permitted to name any individual(s) as the beneficiary of said account.
MAINTENANCE
The Wife requests a final award of non durational maintenance in the amount of $1,664.50. In her summation she explains that to determine this sum, the parties' annual incomes earned from social security and pensions benefits should be combined, divided equally and then the Husband's income offset by that amount owed to the Wife to equalize their monthly incomes. The Husband opposes the Wife's request for final maintenance in its entirety.
DRL §236B(6)(a) provides that "except where the parties have entered into an agreement pursuant to subdivision three of this part providing for maintenance, in any matrimonial action the court may order maintenance in such amount as justice requires, having regard for the standard of living the parties established during the marriage, whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs and whether the other party has sufficient property or income to provide for the reasonable needs of the other and the circumstances of the case and of the respective parties. Such order shall be effective as of the date of the application therefor, and any retroactive amount of maintenance due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary maintenance which has been paid." The amount and duration of maintenance is committed to the sound discretion of the trial court, and every case must be determined on its own unique facts (Haagen-Islami v Islami, 96 AD3d 1004 [2012]; Chaudry v Chaudry, 95 AD3d 1058 [2012]; Scher v Scher, 91 AD3d 842 [2012]). In setting an amount and duration of maintenance, the Court is to consider those factors set forth in DRL §236B(6)(a). The Court must also consider the parties' reasonable needs and the pre-separation standard of living in the context of those factors set forth in DRL §236(B)(6)(a), and then, in its discretion, fashion a fair and equitable maintenance award accordingly (Hartog v Hartog, 85 NY2d 36 [1995]; DRL §236B[6][a]).
DRL §236B(6)(a) states that the Court shall consider:
(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
(2) the length of the marriage;
(3) the age and health of both parties;
(4) the present and future earning capacity of both parties;
(5) the need of one party to incur education or training expenses;
(6) the existence and duration of a premarital joint household or a predivorce separate household;
(7) 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 fiftyninea of the social services law;
(8) the ability of the party seeking maintenance to become selfsupporting and, if applicable, the period of time and training necessary therefor;
(9) 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 during the marriage;
(10) the presence of children of the marriage in the respective homes of the parties;
(11) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or inlaws that has inhibited or continues to inhibit a party's earning capacity;
(12) the inability of one party to obtain meaningful employment due to age or absence from the workforce;
(13) the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;
(14) the tax consequences to each party;
(15) the equitable distribution of marital property;
(16) 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;
(17) the wasteful dissipation of marital property by either spouse;
(18) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(19) the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and
(20) any other factor which the court shall expressly find to be just and proper.
Several of the factors to be considered in an award of final maintenance have been discussed in the context of the above equitable distribution discussion, namely: length of the marriage (44 years), age and health of the parties (69 and 72 at commencement), wasteful dissipation of marital property by the Husband, and transfers of marital property made in contemplation of this action. However, additional maintenance factors set forth in DRL §236B(6)(a) are particularly relevant to the circumstances of this case as discussed herein.
The Court notes that the Husband's wasteful dissipation of marital property has been remedied by an unequal distribution of the value of the Harlem property in favor of the Wife and that his pre and post commencement transfers of martial funds have been remedied by including these total sums in the value of the martial estate prior to distributing the value of same.
Looking to the parties' respective incomes going forward, same are comprised of their social security benefits and resulting pension benefits payments in accordance with the above equitable distribution award. After the offset of same, the Wife's monthly income amounts to $2,050 plus an additional $1,433 in monthly social security benefits for total monthly income of $3,483. The Husband's monthly income after the pension offset is $2,780 plus an additional $2,134 in monthly social security benefits for total monthly income of $4,914. Thus, there is a $1,431 discrepancy between the parties' monthly incomes after the above equitable distribution award is effectuated.
The Court relies on the Husband's 2009 federal tax return (pl. ex. 16) and his own summation to determine his social security benefits, which is consistent with the Wife's assertion of same, while acknowledging that neither party provided any updated information at trial with respect to a cost of living adjustment, if any.
In light of the above, the Court looks to the marital and non marital property distributed, which directly impacts on the parties' future income capacity and expenses. Specifically, the Husband retains his one third ownership interest in the Harlem property which the Court recognizes has significant potential to be income producing. This was established by the Husband's own testimony at trial regarding renovations that he alone procured in an effort to make the property more habitable. He retained an engineer to draft plans for converting the property from a rooming house into four apartments and he hired a contractor to install two kitchens, a bathroom, and flooring. Further, the Court has awarded the Husband exclusive use and occupancy of the martial residence which, the parties agree is a two-family dwelling. The parties have previously earned rental income from the second apartment, and there is no legal basis to support the Husband's position that the parties' grandchildren have a need to occupy same rent free. Accordingly, the Court finds that this is yet another potential source of income for the Husband going forward.
In addition to retaining two potentially income producing properties, the Court notes that same are owned free and clear of any mortgages, leaving the Husband with modest fixed expenses. The Wife on the other hand has been retired since 2005 (seven years prior to commencement of the action) and in light of her age is not expected by this Court to obtain employment in the future. Further, as she has been residing in a rental apartment during the majority of this litigation and may continue to do so, unlike the Husband, she will have greater fixed expenses to meet.
The Court also considers that both parties retired several years before the commencement of the action at which time neither party elected the other as a death beneficiary of their respective pension benefits. The Court is therefore cognizant that upon the Husband's death, the above pension distribution to the Wife will be terminated and her monthly income reduced. While the Court will not look back at the choices the parties made during the marriage, it is appropriate to look forward in fashioning an equitable award upon dissolution of this forty four (44) year marriage.
In light of the above factors together with the equitable distribution factors previously discussed, the Court finds that an award of non durational maintenance to the Wife is appropriate. Accordingly, the Husband is directed to pay the Wife the sun of $700 per month until the earlier of his death, her death or her remarriage. The first payment to be made directly to the Wife within thirty (30) days of service by the Wife's counsel on the Husband's counsel of the judgment of divorce with notice of entry in the Office of the Kings County Clerk. The Husband's maintenance obligation is tax deductible to him and taxable to the Wife.
The Wife's final maintenance award is retroactive to the date of her application, May 8, 2012 (DRL §236B(6)(a)). In the case of maintenance, the application should be considered made when the summons with maintenance identified as ancillary relief requested is filed (see Burns v Burns, 84 NY2d 369 [1994]). Here, the Wife's application is retroactive to May 8, 2012. In calculating retroactive support, the Court considers its pendente lite award of $1,700 per month effective February 13, 2014. Where as here the pendente lite award is higher than the Wife's final maintenance award, the statute does not specifically address recoupment by the payor spouse. However, the Court has taken same into consideration in determining the amount of the Wife's final maintenance, in determining equitable distribution (Johnson v Chapin, 12 NY3d 461 [2009]), and in consideration of the Wife's counsel fee request discussed below.
In light of the above, retroactive maintenance is calculated as follows: May 8, 2013 - February 13, 2014: ($700 per month x 20 months) = $14,000. Retroactive support shall be paid in one lump sum within sixty (60) days of service by the Wife's counsel on the Husband's counsel of the judgment of divorce with notice of entry in the Office of the Kings County Clerk. The Husband shall continue to pay directly to the Wife the sum of $700 per month every thirty (30) days thereafter. This award is without prejudice to any arrears which may have accrued under the pendente lite order of maintenance as of February 13, 2014.
COUNSEL FEES
At the conclusion of the trial (March 12, 2015) counsel stipulated to submitting affirmations regarding counsel fees in lieu of a hearing. The Wife's counsel annexes her total bill for services rendered from May 2, 2012 through May 14, 2015. She affirms that through March 12, 2015, she received total fees $122,746.07 of which the Husband has paid $65,000 (pl. exs. 51 and 53) and the Wife has paid $57,746.07 plus an additional $5,340 in expert and appraisal fees. Counsel asks that the Husband be directed to pay the entirety of the legal and appraisal/expert fees expended by the Wife as well as an additional $16,350 representing counsel's present balance due through May 14, 2015. Counsel adds that the Husband paid his own attorney and appraisal fees of $146,601.57.
Counsel affirms that $46,200 of these fees was paid for by the Wife from the $100,000 advance she received in equitable distribution from the Husband's annuity.
In support of her request, counsel asks the Court to consider the disparity in the future earning capacity of the parties and disregard the Wife's distributive award as she should not be expected to exhaust same to pay counsel fees. Counsel argues further that in refusing to provide the Wife voluntary support he unduly prolonged the litigation with unnecessary motion practice and that his inconsistent and changing position regarding marital assets caused the Wife to incur unnecessary expert fees and prolonged the trial. Counsel also asks the Court to consider the Husband's obstructionist tactics evidenced by his transfer of marital funds during the first month of litigation and his unwillingness to clarify these transfer during discovery, again leading the Wife to incur unnecessary motion and investigation fees. Lastly, counsel notes that the parties incurred the expense of mediation but because of the Husband's refusal to equitably divide the parties' assets procured over the course of a forty four (44) year marriage, they proceeded with lengthy and costly litigation.
Counsel specifically notes that while represented by his first counsel, the Husband filed four separate net worth statements affirming that he was the 100% owner of the Harlem property, a position he took throughout the entire discovery stage of litigation. It was not until the Husband retained his current counsel that he asserted a one third ownership interest in the property. This caused the Wife to prepare a memoranda of law, retain a real estate expert to prepare a report and testify at trial, and prepare anew for trial as to the issue of the Harlem property.
The Husband opposes the Wife's request for counsel fees and seeks reimbursement and reallocation of the fees he has expended in this action. Counsel annexes the Husband's total invoice of legal fees paid since commencement of the action but affirms that he, as current counsel has been paid $65,200 and is owed an additional $21,256.92. Annexed as an exhibit to counsel's affirmation is a handwritten list indicating that the Husband has paid the sum of $200,885.37 from May 2012 through October 2014, inclusive of prior and current counsels' fees, counsel fees paid to the Wife, mediation and expert and appraisal fees. Counsel does not state by whom this list was prepared. He argues that all the fees expended were necessary to defend the Husband in this action, that both parties declined settlement offers made by the other and that the Wife prolonged this action in failing to relocate to Virginia as agreed to by the parties in 2012. Ultimately, the Husband asks that he be reimbursed a minimum of 50% of the $65,000 he has paid towards the Wife's counsel fees and that the Court reallocate his own fees paid appropriately.
Counsel annexes a handwritten list of sums paid to the Husband's prior counsel, Polly Passonneau, Esq. totaling $55,011.92 from May 23, 2012 through February 2, 2013. --------
DRL §237 authorizes the Court to direct either spouse to pay counsel fees in order to enable the other spouse to carry on or defend the action as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties (Siclari v Siclari, 291 AD2d 392 [2002], citing DeCabrera v. Cabrera-Rosete, 70 NY2d 879 [1987]). Further, there is a rebuttable presumption that counsel fees shall be awarded to the less monied spouse (DRL §237[a]).
DRL §238 provides that "(i)In any action or proceeding to enforce or modify any provision of a judgment or order entered in an action for divorce... or in any proceeding pursuant to section two hundred forty-three, two hundred forty-four, two hundred forty-five, or two hundred forty-six of this article, the court may in its discretion require either party to pay counsel fees and fees and expenses of experts directly to the attorney of the other party to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires having regard to the circumstances of the case and of the respective parties. There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In any such action or proceeding, applications for fees and expenses may be maintained by the attorney for the respective parties in counsel's own name and in counsel's own behalf...(a)pplications for the award of fees and expenses may be made at any time or times prior to final judgment..." If, in an effort to enforce an order for support the Court determines that the failure to pay is willful, then the award of fees is mandatory.Regarding the parties' respective requests for counsel fees, it is the Court's obligation to consider the financial circumstances of the parties, assess the case as a whole, and consider the equities of the parties' positions throughout the litigation and the trial (Mueller v Mueller, 113 AD3d 660 [2014]). This matter was tried over several days after more than two years of discovery and late stage motion practice substantially occasioned by the Husband's conduct. Specifically, the Court finds merit in the Wife's argument that resolvable issues such as pendente lite support to the Wife and naming her the temporary beneficiary of life insurance annuities required litigation even after the matter was placed on the trial calendar, applications upon which the Wife was ultimately successful. The Court also considers that the Husband was equivocal regarding his position on the Harlem property which was ultimately solidified by an amendment, during the trial, to the parties' stipulation of trial facts. However, the Husband was ultimately successful in establishing his claim to this property.
Thus, after consideration of the relative merits of the parties' positions, the circumstances of the case as a whole, the Wife's distributive award and award of non durational maintenance, the Court finds that an award of counsel fees is appropriate. The Court awards counsel fees in the sum of $40,000 to be paid directly to the Wife's counsel within sixty (60) days of service on the Husband's counsel of the judgment of divorce with notice of entry in the Office of the County Clerk. Upon failure to pay, counsel may enter judgment on written affirmation to the Husband's counsel, no further notice is required.
As to the reallocation of expert and appraisal fees, orders were issued during the course of discovery for real estate and pension appraisals and the parties retained their own experts regarding the Harlem property. Both parties ask the Court to reallocate these fees in their favor. The Court finds that in light of the equitable distribution award and the Court's findings regarding issues related to the subject of the appraisals, both party's request for reallocation is denied.
CONCLUSION
The within decision having resolved the remaining ancillary issues between the parties, the Wife's counsel is directed to settle the judgment granting a divorce pursuant to DRL §170(7) in conformity with the parties' stipulated facts for purposes of trial (Court ex. II) and the Wife's testimony on grounds, and findings of fact and conclusions of law, inclusive of the within memorandum decision together with a proposed QDRO with letter of Plan approval within sixty (60) days or the action will be deemed abandoned. Thereafter, the Wife's counsel shall serve a copy of the signed judgment and findings of fact and conclusions of law on the Husband's counsel with notice of entry. Any requests for relief not specifically addressed herein are denied.
The parties are directed to retrieve their respective trial exhibits from the courtroom within thirty (30) days of the date of this decision after which time same will be discarded.
E N T E R,
___________________________________ HON. RACHEL A. ADAMS, J.S.C.