Opinion
54311 2016
02-01-2018
Ingrid BRISTOW, Plaintiff, v. Francis BRISTOW, Defendant.
Henry James Joseph, Esq., Kamaras & Joseph PLLC, 26 Court Street, Suite 1302, Brooklyn, NY 11242, Attorney for Plaintiff. Harvey O. Lazarowitz, Esq., Lazarowitz Law, P.C., 33 Front Street, Suite 201, Hempstead, NY 11550, Attorney for the Defendant.
Henry James Joseph, Esq., Kamaras & Joseph PLLC, 26 Court Street, Suite 1302, Brooklyn, NY 11242, Attorney for Plaintiff.
Harvey O. Lazarowitz, Esq., Lazarowitz Law, P.C., 33 Front Street, Suite 201, Hempstead, NY 11550, Attorney for the Defendant.
Jeffrey S. Sunshine, J. Introduction and Background
The consequences to a payor spouse of the failure to enter a judgment of divorce can result in pendente lite arrears accumulating for many years. The Court herein must determine if the plaintiff should be granted leave to seek a money judgment for maintenance and child support arrears stemming from pendente lite orders from a prior matrimonial action, commenced in 1995 under Index number 19625/1995, where no judgment of divorce was ever filed and that 1995 action was ultimately dismissed as abandoned with prejudice in 2016. The Court must also determine pendente lite , in this action, exclusive use and occupancy of the marital home that was subject to a 1997 decision and order in the prior matrimonial action.
The 1995 divorce was dismissed by order of Justice Ingrid Joseph on September 12, 2016.
Plaintiff moves by order to show cause (motion sequence # 1) dated December 23, 2016 for the following relief: 1) Granting pendente lite maintenance pursuant to guidelines; 2) Granting a money judgment in the amount of $45,450.00 for child support arrears pursuant to the Order of Justice William Rigler dated August 11, 1995; 3) Granting a money judgment in the amount of $51,550.00 for maintenance arrears pursuant to the Order of Justice William Rigler dated August 11, 1995; 4) Granting exclusive occupancy of the marital residence located on East 45th Street, Brooklyn, NY to the plaintiff; 5) Consolidating the partition action filed by defendant, index no. 5971/16, with this matrimonial action; 6) Appraising the East 45th Street property in Brooklyn, NY, with payment in pro rata shares to the parties' respective income; 7) Appraising the defendant's pension and defined compensation plain in pro rata shares to their respective incomes; 8) Granting attorneys fees to the plaintiff in the sum of $10,000.00; 9) For such other relief as the Court may deem just and proper.
The parties were married on June 2, 1979 and have two children who are both emancipated. Plaintiff is currently employed as a home health aide and defendant is employed by New York City Transit.
Prior Divorce Action (Index no. 19625/1995)
The plaintiff commenced a divorce action in Kings County in 1995 under Index number 19625/95. The issues of pendente lite maintenance and child support were determined by Justice Rigler by decision dated August 11, 1995 (annexed as exhibit B to motion sequence # 1) as follows:
"Pending further order of this court defendant shall pay to plaintiff the sum of $100 bi-weekly as and for maintenance. This maintenance award shall commence on September 1, 1995. Pending further order of this court defendant shall pay to plaintiff the sum of $450 bi-weekly as and for child support.
The child support award shall commence on September 1, 1995."
Subsequently, Justice Ira B. Harkavy issued a decision after a trial on the issue of equitable distribution on July 8, 1997 (annexed as exhibit A to motion sequence # 1) which awarded to the plaintiff the property located at East 45th Street in Brooklyn and an additional sum of $5,231.00. It is undisputed that no judgment of divorce was ever filed by either party. In that decision, Justice Harkavy noted:
"In the above entitled matter, a divorce was granted to plaintiff, on inquest, on or about April 14, 1997. The case was thereafter adjourned for the Court to determine Equitable Distribution. The questions of child support and maintenance had been determined by another Court on August 11, 1995."
Justice Harkavy decided the issue of Equitable Distribution and concluded the July 8, 1997 decision:
"All questions regarding child support and maintenance are referred to the Family court for determination. Settle Judgment on notice."
Twenty years after Justice Harkavy's decision, plaintiff moved by order to show cause to have a judgment filed in the divorce proceeding under Index number 19625/95 as it is undisputed that no judgment of divorce was ever filed. That application was denied by Justice Ingrid Joseph by order dated September 12, 2016 as follows:
"Order to show cause to sign judgment of divorce is denied. The matter is deemed abandoned with prejudice."
This Court is bound by that determination which is law of the case (See Ramanathan v. Aharon , 109 A.D.3d 529, 530, 970 N.Y.S.2d 574, 576 [2d Dept. 2013] ).
Current Divorce Action
This current matrimonial action was commenced by the plaintiff with the filing and service of a summons with notice on September 21, 2016. The parties and counsel appeared for the preliminary conference on January 17, 2017. During the preliminary conference plaintiff's requests for appraisal orders were granted for the marital home and defendant's pension.
The parties and counsel next appeared August 8, 2017 for oral argument on motion sequence # 1. After oral argument the Court issued a decision on the record and signed two short-form orders. The first order dismissed the defendant's partition action on consent and awarded plaintiff $1,750.00 in temporary maintenance "commencing August 15, 2017 retroactive to filing January 3, 2017. Defendant to pay retro active [support] by December 31, 2017." In that oral decision the Court also awarded pendente lite counsel fees to plaintiff's counsel:
"After oral argument it is hereby ordered that defendant is to pay counsel fees of $8,500.00 to plaintiff's counsel. The sum of $4,250.00 shall be payable on or before October 9, 2017. The second installment sum of $4,250.00 shall be payable on or before December 11, 2017. If defendant fails to timely pay the first installment in a timely manner, plaintiff may enter a money judgment for $8,500.00. If defendant makes the first payment but fails to timely make the second payment, plaintiff may enter a money judgment for $2,250.00. The money judgments shall be permitted to be filed immediately following a default, and shall contain interest at the legal rate of 9%."
Thus the remaining issues for the Court to consider herein are the money judgments for arrears requested by plaintiff for maintenance and child support due and owing (which both parties, through counsel, acknowledge no payments have ever been made by the defendant) emanating from the original divorce action and exclusive use and occupancy of the marital home pendente lite .
Plaintiff's Contentions
Plaintiff contends that she commenced an action for divorce in 1995 after she "discovered that the defendant had married a second wife, [named redacted by the Court], in 1994 in Guyana while still legally married to [plaintiff]." She argues that she "believed" her divorce was final after Justice Harkavy issued the July 8, 1997 decision and "only recently, nineteen years after Justice Harkavy's decision, did I become aware that I was not legally divorced" "after getting documents in order for my second marriage, with a wedding date set for September 16, 2016." Plaintiff contends that during the initial divorce proceedings she was represented by an attorney [name omitted by the Court], whom she avers "never submitted the papers required to obtain a judgment" and "was later disbarred in 2003." Plaintiff states that she retained Henry James Joseph, Esq. and "sought to have a judgment entered on my 1995 divorce filing." That application was denied by Justice Ingrid Joseph and the 1995 divorce proceeding under Index number 19625/95 was dismissed as abandoned with prejudice by order dated September 12, 2016.
Plaintiff annexes as exhibit K to motion sequence # 1 a copy of a Guyanese registration of marriage between the defendant and another woman dated September 5, 1995.
This attorney's license was suspended for disciplinary reasons pursuant to a decision of the Appellate Division, Second Department on July 7, 2003. According to the Attorney Registry he then resigned from the bar for disciplinary reasons on September 20, 2004.
Plaintiff contends that the 1995 and 1997 maintenance, child support and equitable distribution orders remain in full force and effect despite no payments ever being made by defendant and the underlying case has been dismissed. She contends the parties have lived separate lives since 1997 but that they "have maintained contact" and that she "did allow [defendant] to share in funds received from a home equity loan taken out in 2015 on the former marital residence at East 45th Street, but he has not lived there since 1994."
Arrears
Plaintiff argues that she has not received any child support or maintenance from the defendant pursuant to the 1995 order, which she argues continues to be valid, and that he owes her $30,000.00 in child support and more than $49,000.00 in maintenance arrears since the order was not durational and continues. She contends that this decision was never appealed nor did defendant ever file for a downward modification nor to terminate the orders.
In his affirmation, plaintiff's counsel contends that the arrears from these orders of maintenance and child support "are still valid and outstanding citing Fotiadis v. Fotiadis , 18 A.D.3d 699, 795 N.Y.S.2d 729 [2d Dept. 2005], which provides (internal citations omitted):
"It was error to deny that branch of the plaintiff's motion which was for leave to enter a judgment for arrears against the defendant. Although the defendant's current obligations pursuant to the pendente lite order terminated with the dismissal of the action, the defendant was required to obey the pendente lie order while the action was pending. Upon dismissal of the action, the pendente lite order was no longer in effect, but the plaintiff was entitled to any arrears which accrued under that order prior to dismissal, and may enforce that
obligation by seeking leave to enter a money judgment."
Plaintiff's counsel further cites Matter of Fixman v. Fixman , 31 A.D.3d 637, 819 N.Y.S.2d 770 [2d Dept. 2006] which he argues held "that the dismissal with prejudice of the mother's divorce action did not preclude her from seeking payment of arrears." Counsel contends that "although the underlying action was dismissed as abandoned on September 12, 2016, the already-existing arrears are unaffected by this dismissal. The plaintiff is entitled to a money judgment upon her showing of arrears due and owing."
Plaintiff contends that the child support was payable until May 22, 2001 when the parties youngest child was emancipated. She avers that "at $450.00 biweekly commencing July 8, 1997 until May 22, 2001, the defendant owes $45,450.00" in child support arrears. She contends that "the maintenance award was not durational and therefore still continues. At $100 biweekly beginning from July 8, 1997 the defendant owes $51,550.00 as of December 8, 2016" in maintenance arrears.
In her reply plaintiff contends that "defendant never makes a showing or even a claim that he paid child support from 1995 until May 22, 2001 when our youngest child, [name redacted by the Court], was emancipated or that he paid maintenance." Plaintiff argues that the defendant "carries the burden to file to modify or end child support and maintenance payments and that any arrears within twenty years of the date I filed to enforce is the appropriate date from which the arrears are measured, not the original date of the order of support and maintenance." Thus, defendant contends that she is "entitled to receive payment for child support and maintenance arrears at a minimum beginning from December 23, 1996, which is twenty years prior to the date my motion for a judgment for arrears was filed in this matter."
Exclusive Occupancy
Plaintiff contends that the property located at East 45th Street in Brooklyn "was purchased by the defendant and I in 1977, two years before we were married." She argues that the defendant "made no contribution to the down payment nor any other payments, but we executed the deed to provide that we are ‘joint tenants with the right of survivorship and not as tenants in common.’ " Plaintiff avers that the property was awarded to her in the 1997 equitable distribution decision of Justice Harkavy and that she has "continuously lived there since 1977" and that "defendant moved out long ago and has never contributed funds to the property."
Plaintiff contends that the marital home has "a mortgage and a home equity line of credit." She states "when I refinanced the mortgage in 2013, I took the defendant's name off the mortgage. I have paid every mortgage payment for more than twenty years. The defendant did not contribute anything." She argues that the defendant and she "are both listed on the $160,000.00 home equity line of credit" but that she "obtained this loan in 2015 and struck a deal with the defendant to provide him a share of the line of credit to pay off his credit card debt." She contends that "in return, he would pay the monthly payment." She states that she "used $112,00.00 for home improvements. Our son and daughter got $10,000.00 and $15,000.00 respectively. The balance of $18,000.00 went to the defendant to pay off his credit card debt." She contends that she currently pays $700.00 per month to the defendant who then "pays the remainder of the monthly payment, which is $1,067.00 per month." Plaintiff argues that this "only shows we have joint debt. It proves nothing more."
Plaintiff annexes as exhibit I to motion sequence # 1 a statement from Capital One dated September 6, 2016 addressed to her at E. 45 St., Brooklyn, NY 11203 regarding the mortgage.
As to the allegation of a foreign divorce, the plaintiff contends that the defendant "has been coming around to my home recently and making threats to me and my fiancé." She states that she does not "feel comfortable that the defendant can stop by anytime he wants, especially when he has shown himself willing to do so to upset and annoy me." She argues that defendant "has contributed nothing to the upkeep, mortgage, taxes or improvements to the property in over twenty years." The Court notes that the foreign divorce is dated October 14, 1994, the first action was commenced on June 19, 1995 and the underlying action was commenced by summons with notice on September 22, 2016.
Plaintiff attaches as exhibit G to motion sequence # 1 two (2) estimates for repairs on the marital home in her name at E. 45 St., Brooklyn, NY 11203 dated December 19, 2016 and February 20, 2016 respectively.
Plaintiff's counsel in his affirmation contends that "the decision of Justice Harkavy is entitled to res judicata as the issues have been fully heard and tried on the merits. The facts surrounding the home have not changed since that time. The plaintiff has paid all the expenses all this time. Although the matter was dismissed as abandoned, the unique facts of the situation militate towards the decision of Justice Harkavy being vested with res judicata ."
Furthermore, counsel contends that "there are two alternative tests to obtain exclusive use and occupancy of the marital residence pendente lite . The first is that it is necessary to protect the safety of person or property. The second is that the non-movant spouse has already voluntarily left the marital residence and a return would cause domestic strife. Taub v. Taub , 33 A.D.3d 612, 822 N.Y.S.2d 154 [2d Dept. 2006] ; Pascazi v. Pascazi , 52 A.D.3d 664, 861 N.Y.S.2d 95 [2d Dept. 2008]." Counsel argues that "the second standard is easily met in this case. The defendant has not lived at the marital residence since 1994, when he left just prior to the parties' first divorce action." Counsel contends that "since the renewal of litigation between the parties, the defendant has increased the frequency of his visits and attempts to enter the marital residence. The plaintiff feels threatened by these visits, as they began after she sought to have the judgment in her first action signed. The current litigation between the parties after years of believing they were divorced has created tension and re-opened old wounds."
In her reply defendant reiterates that she has "lived at the marital residence, [redacted] East 45th Street, Brooklyn, New York without the defendant since we separated in 1994. I have not lived as husband and wife with the defendant since 2000, despite his repeated claim. I have borne the costs of the marital residence since we separated in 1994. I have numerous bills, receipts, and invoices addressed to me at [redacted] East 45th Street going back years. He has not paid anything nor lived there since 1994."
Plaintiff annexes as exhibit F a ConEdison Bill in her name with the address at E. 45 St., Brooklyn, NY 11203 dated July 7, 1995, a NYC Water bill addressed to her at E. 45 St., Brooklyn, NY 11203 dated November 10, 2016 and National Grid bill addressed to her at E. 45 St., Brooklyn, NY 11203 dated December 1, 2016.
Defendant argues that "defendant attaches bills, receipts and invoices to his reply papers but none of these indicate the property they are for" and that "he makes a very poor show of ‘proving’ that he pays bills for my home." She contends that the only bill with an address is the joint statement for the home equity loan for which she explained above the parties have an "arrangement."
Plaintiff describes the "divorce papers the defendant now attaches to his ‘reply affidavit’ " as "laughable." She contends that "this is the first I have ever heard of such a divorce and I certainly had no part in signing where my signature is purported on the last page." Plaintiff argues that "if he ‘believed it to be a good divorce’ why did he go through a two year divorce process in New York?"
Defendant's Contentions
Arrears
Defendant contends that the order of Justice Rigler dated 1995 "is now barred by the statute of limitations. See CPLR 211(e) :
"... An action or proceeding to enforce any ... permanent order or judgment of any court of competent jurisdiction which awards support, alimony or maintenance regardless of whether or not arrears have been reduced to a money judgment, must be commenced within twenty years..."
Defendant contends that "more than twenty years have expired since the [Judge] Rigler order with no action by the plaintiff. Her claim now for arrears is barred. There is no judgment from which to seek arrears, it is barred. The statute is clear."
Defendant contends that because the 1995 matter was dismissed as abandoned "neither the [Judge] Rigler judgment nor the alleged [Judge] Harkavy decision is available to the plaintiff. And, since neither are available, no alleged arrears can be claimed." He argues that "to now seek cumulative arrears in support and maintenance when no claim was made in twenty years is grossly overreaching. There was no Family Court application, no enforcement action, nothing for more than 20 years. The children are now 42 years, 36 years, all are of majority age. At no time did a child bring an action or claim for support and none joined this action."
Defendant distinguishes the Fotiadis case cited by the plaintiff, arguing "the Fotiadis case as reported involved a pendente order granted June 2003." He contends that "the claim for support then came one year later in 2004. After the argument, the case was dismissed." Counsel contends that this "is vastly different from a case involving a claim made more than twenty years after a judgment was rendered; where no intervening claim or enforcement was made during the passing years." He contends that plaintiff's interpretation of the statute "could extend the statute's time limit to possibly 40 years. A child being due support and being one year old would have until age 21, and then when the child is two years, it has until 22, at age 10 the child has until age 30 for claim of said payment and age 20, the same child has until 40, thus extending the CPLR to a 40 year statute."
Defendant further contends that plaintiff, in not filing for this relief sooner, cannot now extend the statute of limitation as in Zielinski v. Zielinski, 15 A.D.3d 575, 790 N.Y.S.2d 516 [2d Dept. 2005], where the Court held that "there was no evidence that the defendant acknowledged the NY judgment or made any payments thereon to extend that 20–year period of limitations."
He further argues that he was divorced from the plaintiff in Guyana in 1994 and annexes as exhibit G to his opposition papers an uncertified copy of a Guyanese divorce dated October 14, 1994. There is no proof that this judgment was ever docketed in New York.
Exclusive Use and Occupancy
Defendant contends that he has been "living together with my wife at East 45th Street, Brooklyn, NY since 2000. Prior to 2000 we did split up and I was relegated to the basement apartment. Thereafter, in the year 2000, we resumed living together as husband and wife." He argues that "we jointly applied for a loan together on the house. Both our credit ratings were used to have the loan approved. Once the money came, I used it to make repairs to the house. At all times we lived together as husband and wife. I pay bills and receive mail there."
Defendant annexes a statement from MCU Municipal Credit Union addressed to him at E. 45 St., Brooklyn, NY 11203 dated August 17, 2016 and various void checks with no address on them.
Defendant claims that "it was only in the year 2016 that things changed, when my wife started seeing someone else." He alleges that "she was set to marry the other person in September 2016 and brought an action trying to use the abandoned 1995 case as her base [sic] for a divorce. When I opposed her shenanigans, she changed the locks because I have a key to the house and she put my personalty in the garage." He argues that he filed a police report on September 13, 2016 as a result of this incident and annexes a copy of the report as exhibit F to his opposition papers.
He contends that "there is no reason though to be prevented from being in my own home. There were no police reports and never any violence. I believe it is a spite gesture on the part of my wife because I did not consent to the use of the bogus 1995 divorce action." Defendant argues that he "continuously occupied the house and seek to continue."
Discussion
Maintenance and Child Support Arrears
As a threshold issue, the Court must determine the effect of CPLR § 211(e) on plaintiff's application for maintenance and child support arrears stemming from a 1995 pendente lite order; whether the statute time bars plaintiff's application or limits the time with which plaintiff can claim arrears.
Prior to CPLR § 211 being amended by the New York State Legislature in 1987, the Appellate Division, Second Department, held in Tauber v. Lebow, 65 N.Y.2d 596, 483 N.E.2d 1140, 493 N.Y.S.2d 1008 (2d Dept. 1985)" "alimony and child support payments awarded in a divorce decree do not constitute a judgment debt until the arrearages are reduced through further proceedings to a judgment." "Rather, because there is no time limitation specifically prescribed by statute, the six-year period provided in CPLR 213(1) applies."
C.P.L.R. 213(1) states: "The following actions must be commenced within six years: 1. an action for which no limitation is specifically prescribed by law."
In 1987, subsection (e) was enacted by the New York State Legislature nullifying the holding in Tauber and expanding the 20–year statute of limitations to orders of support, alimony and maintenance even if the arrearage has not been quantified in a judgment. The twenty years are calculated from the date of the default, dealing with orders prospectively from August 7, 1987.
see Joseph M. McLaughlin Practice Commentaries, McKinney's Cons Laws of NY, Book 7B, CPLR 211 at 636 [1990].
CPLR § 211(e) states:
"For support, alimony or maintenance. An action or proceeding to enforce any temporary order, permanent order or judgment of any court of competent jurisdiction which awards support, alimony or maintenance, regardless of whether or not arrears have been reduced to a money judgment, must be commenced within twenty years from the date of a default in payment. This section shall only apply to orders which have been entered subsequent to the date upon which this section shall become effective."
NY C.P.L.R. 211(e) (McKinney 2017).
In Matter of Dox v. Tynon , 90 N.Y.2d 166, 659 N.Y.S.2d 231, 681 N.E.2d 398 [1997], the New York Court of Appeals held:
"Until 1986, child support and other types of arrears, including maintenance, were treated similarly. In the New York State Support Enforcement Act of 1986, the Legislature for the first time carved out a special category for child support arrears, barring any reduction or cancellation.
The law created the current version of Domestic Relations Law § 244, which mandates that the court "shall make an order directing the entry of judgment for the amount of arrears of child support," with no exception (see, L 1986, ch. 892, § 8, as amended by L 1988, ch. 327, § 1). With regard to "arrears of any other payments," the court is required to enter judgment for the full amount unless the defaulting spouse shows good cause for failing to request relief before the arrears accumulated. An identical change was made to the analogous Family Court Act provision (see, Family Ct. Act § 460[1] [as amended by L 1986, ch. 892, § 24] )."
"Similar alterations distinguishing between child support and maintenance arrears were made to the enforcement and modification provisions— Domestic Relations Law § 236(B)(9)(b) and Family Court Act § 451 (see, L 1986, ch. 892, §§ 4, 21). Domestic Relations Law § 236(B)(9)(b) was amended again the next year as part of the Support Enforcement
Act of 1987, and that section now provides:
‘[N]o modification or annulment shall reduce or annul any arrears of child support which have accrued prior to the date of application * * * The court shall not reduce or annul any arrears of maintenance which have been reduced to final judgment pursuant to section two hundred forty-four of this chapter. No other arrears of maintenance which have accrued prior to the making of such application shall be subject to modification or annulment unless the defaulting party shows good cause for failure to make application for relief from the judgment or order directing such payment prior to the accrual of such arrears" ( Domestic Relations Law § 236[B][9][b] [as amended by L 1987, ch. 815, § 7] ).’
The Court of Appeals further held in Dox :
"The purpose of the recent revisions was to "preclude [ ] ‘forgiveness' of child support arrears to ensure that respondents are not financially rewarded for failing either to pay the order or to seek its modification" (Governor's Mem Approving L 1986, ch. 892, 1986 NY Legis. Ann., at 361). Under the present enforcement scheme, then, "[n]o excuses at all are tolerated with respect to child support" (Scheinkman, Practice Commentary, McKinney's Cons. Laws of NY, Book 14, Domestic Relations Law § 244, at 752)."
The Court of Appeals in Dox also addressed the issue of the statute of limitations:
"The recipient of child support payments, however, is subject to a limitations period and, therefore, cannot delay enforcement indefinitely. Prior to 1987, the applicable period was six years unless the order had been reduced to judgment (see, Tauber v. Lebow , 65 N.Y.2d 596, 493 N.Y.S.2d 1008, 483 N.E.2d 1140, supra). Tellingly, as part of the Support Enforcement Act of 1987, the Legislature extended the Statute of Limitations for all subsequent actions for support, alimony or maintenance to 20 years from the date of default, regardless of whether the arrears have been reduced to judgment (see, CPLR 211[e] )."
In the Matter of Fixman v. Fixman, 31 A.D.3d 637, 819 N.Y.S.2d 770 (2d Dept. 2006) the appellant mother sought arrears from a Supreme Court, Nassau County pendente lite child support order dated August 30, 1994, despite the fact that the matrimonial action was dismissed with prejudice in 2002. The Appellate Division, Second Department held in Fixman that "the dismissal of the New York matrimonial action did not preclude the mother from seeking any arrears which may have accrued while the pendente lite order remained in effect and that she could enforce the father's support obligation by seeking leave to enter a money judgment."
Similarly in Fotiadis v. Fotiadis, 18 A.D.3d 699, 795 N.Y.S.2d 729 (2d Dept. 2005) the Appellate Division, Second Department held "Although the defendant's current obligations pursuant to the pendente lite order terminated with the dismissal of the action [...] the defendant was required to obey the pendente lite order while the action was pending. Upon dismissal of the action, the pendente lite order was no longer in effect, but the plaintiff was entitled to any arrears accrued under that order prior to dismissal [...] and may enforce that obligation by seeking leave to enter a money judgment." (See also Cawthon v. Cawthon , 276 A.D.2d 661, 714 N.Y.S.2d 335 [2d Dept. 2000] ).
Here, it is undisputed that the initial divorce action, filed under Index number 19625/1995, remained open with no judgment having been submitted or signed and no enforcement or modification applications filed by either side respectively until the matter was dismissed as abandoned with prejudice on September 12, 2016. As such in accordance with New York Law the pendente lite orders were no longer in effect when the divorce action was dismissed by Justice Joseph on September 12, 2016 (see King v. King , 230 A.D.2d 775, 646 N.Y.S.2d 377 [2d Dept. 1996] ). However, until the day they were dismissed the orders remained open, and as such the pendente lite orders remained in full force and effect. Thus, in accordance with New York Law, despite the underlying divorce proceeding being dismissed, the plaintiff is not precluded from seeking any arrears which may have accrued while the orders remained in effect.
The Court herein declines to adopt defendant's theory that the statute of limitations outlined in CPLR § 211(e) begins to toll from the first default, herein September 1, 1995 and that first default "continues." If the Court were to adopt this theory the plaintiff would be time barred from pursuing any arrears in the now-dismissed matrimonial matter where there were open pendente lite orders from September 1, 1995 through September 12, 2016. This theory is inapposite to the case law allowing litigants to collect arrears from pendente lite orders of maintenance and child support that previously accrued prior to dismissal. It is clear that the New York Courts recognize that the rights of payee spouses should be protected. In amending this section of the CPLR in 1987, the New York State Legislature clearly intended to protect payee spouses by increasing the statute of limitations to enforce a temporary order, permanent order or judgment of any court of competent jurisdiction which awards support, alimony or maintenance from six (6) years to twenty (20) years.
As stated by the Court of Appeals in Dox , "The recipient of child support payments, however, is subject to a limitations period and, therefore, cannot delay enforcement indefinitely ( Dox v. Tynon, supra )." In the case at bar, the order for which the plaintiff seeks to collect arrears are dated August 11, 1995, which is undisputedly more than twenty (20) years from plaintiff's application for arrears dated December 23, 2016. Thus, in accordance with the legislature's clear intent and this Court's interpretation of the statute, the Court concurs with plaintiff's argument that the defaulted payments by the defendant that occurred prior to December 23, 1996 (which are more than twenty (20) years old) are time-barred by CPLR § 211(e), but because the defendant continued to default on these orders bi-weekly since September 1, 1995 plaintiff's application is timely as of defendant's continuous default on December 23, 1996, within twenty (20) years of her application. Thus the arrears for pendente lite maintenance shall be calculated from December 23, 1996 through September 12, 2016 (when the prior case was dismissed) and arrears for pendente lite child support shall be calculated from December 23, 1996 through May 22, 2001, when the parties' youngest child was emancipated. That emancipation event terminates the child support obligation since the award for both children was unallocated.
Therefore, plaintiff's application to enter a money judgment is granted, pursuant to CPLR § 244 for maintenance arrears of $100.00 bi-weekly for the period of December 23, 1996 through September 12, 2016 in the amount of $51,450.00 (1,029 weeks and 1 day/2 = 514.5 payments at $100.00 = $51,450.50) and $450.00 bi-weekly child support arrears from December 23, 1996 to May 22, 2001 equals $51,750.00 (230 weeks and 2 days/2 = 115 payments at $450.00 = $51,750.00) however the Court hereby awards child support arrears of $45,450.00, the amount requested by the plaintiff in the underlying motion. Exclusive Use and Occupancy
Courts are statutorily empowered to grant one spouse temporary exclusive use and occupancy of the marital residence during the pendency of divorce proceedings (see Domestic Relations Law § 234 ). Such an order is appropriate only upon a showing that the relief is necessary to protect the safety of persons or property, or one spouse has voluntarily established an alternative residence and a return would cause domestic strife (see Taub v. Taub , 33 A.D.3d 612, 822 N.Y.S.2d 154 [2d Dept. 2006] ).
Here, the plaintiff provides proof of utility bills, receipts for repair work done on the marital residence and a copy of a statement for the mortgage of the house all addressed to her and in her name alone at the marital residence. She argues that she should be awarded pendente lite exclusive use and occupancy of the marital residence as the defendant does not live there and she feels "threatened" by the defendant's increased visitation to the marital home. While the plaintiff admits she and the defendant are named on the home equity line of credit, the Court finds credible her explanation.
All that defendant provides one statement from a Municipal Credit Union that includes his address as that of the marital home, various checks with no address and claims that he and the plaintiff have been living "together as husband and wife" since 2000. He also provided a copy of a police report from 2016 when he alleges the plaintiff changed the locks and he was forced to call the police.
Based upon the submission provided and given the animosity and apparent abandonment of the marital home (see Taub v. Taub , supra ), the Court hereby awards the plaintiff pendente lite exclusive use and occupancy of the marital home at East 45th Street in Brooklyn. The Court finds credible plaintiff's proof that she in fact has been living in the marital home and has no reason not to believe her when she indicates she feels "threatened" by defendant's presence. The defendant however provides little to no proof that he resides in the residence and the fact that he provides a copy of a police report due to an incident between the parties only underscores the Court's decision to award pendente lite exclusive use and occupancy to the plaintiff until the Court decides how the marital home will be equitably distributed. The defendant's argument is further weakened by his contentions that he was divorced from the plaintiff in 1994 and is married to another woman, but that he has also lived with the plaintiff as husband and wife in the marital home since 2000. Conclusion
Plaintiff's order to show cause (motion sequence # 1) is granted to the extent indicated herein. Plaintiff's counsel shall serve defendant's counsel with a copy of this decision and order with notice of entry within thirty (30) days. Parties and counsel are scheduled to appear on Tuesday February 13, 2018 at 9:30 a.m. for oral argument on defendant's motion (motion sequence # 2) and for a compliance conference.
This shall constitute the decision and order of this Court.