Opinion
No. 51073/2005.
01-28-2015
C.G., Plaintiff, v. R.G., Defendant.
Victor Mevorah, Esquire, Garden City, N.Y. for Plaintiff. Self represented, for Husband. Ralph Porzio, Esquire, Staten Island, NY, for Children.
Victor Mevorah, Esquire, Garden City, N.Y. for Plaintiff.
Self represented, for Husband.
Ralph Porzio, Esquire, Staten Island, NY, for Children.
Opinion
CATHERINE M. DiDOMENICO, J.
By Summons filed December 5, 2005, Plaintiff C.G. (“Wife” or “Mother”) commenced this action for divorce against Defendant R.G. (“Husband” or Father”). A Verified Complaint was filed by Wife, then represented by Alison Aplin Esq., and served on or about March 16, 2006. A second Verified Complaint was apparently filed by Wife's second attorney Valarie Van Leer–Greenberg on or about May 9, 2007. After a review of the official Court file, of which the Court takes judicial notice, there is no indication that Husband ever filed an answer to either complaint, or asserted any counterclaims. See Walker v. City of New York, 46 A.D.3d 278, 847 N.Y.S.2d 173 (1st Dept.2007).
The parties were married on March 11, 1990 in a religious ceremony. There are three issue of this marriage: Jo.G.; J.G. and J.L.G. By Consent Order dated December 12, 2006, Defendant Father was granted sole legal and physical custody of Jo.G. as the parties agreed that Father was in the better position to meet Jo.G's psychiatric needs. Plaintiff Mother was granted an Order of Visitation (See Order dated 9/17/08). Jo.G. aged out of the custody jurisdiction of this Court during the pendency of the proceeding. Jo.G., now 21years old, has a reported diagnosis of Attention Deficit Disorder, Generalized Anxiety Disorder and Obsessive Compulsive Disorder. A forensic evaluator herein, Stephen Herman, MD, vehemently disagrees with these findings believing that a more accurate diagnosis of schizophrenia is warranted. During the course of these proceedings, Jo.G. has remained in the physical custody of the Father with whom he lives today.
By Consent Order dated December 12, 2006, Mother was granted an Order of Sole Legal and Physical Custody of the children J.G. and J.LG. However in or around March of 2010 Husband made an application for a change in custody which was referred to trial. Husband's application for a change in custody was resolved by on or about March 3, 2011 when he consented to Mother having custody, for a second time. Mother retained physical custody of these children until on or about June 26, 2012 when a mold condition in the marital home resulted in the children changing their residence to that of their Father until such time as the issue was remedied. In addition to mold from water seepage, the waterfront former marital residence also sustained significant damage in Hurricane Sandy including the erosion of a significant portion of the yard.
During its pendency, this case has been assigned to a number of judges and special referees before it was assigned to this Part for trial. Throughout the course of this litigation, twenty-seven motions were collectively filed by the parties. Plaintiff Wife was represented by Ms. Allison Aplin Esq. from the commencement of this matrimonial action until March 8, 2007 when Ms. Valerie Van Leer–Greenberg Esq. was substituted in as Plaintiff's attorney. Ms. Van Leer–Greenberg represented Wife until June 12, 2009 when she withdraw as counsel alleging that Husband failed to comply with the Court's counsel fee awards to Wife. Plaintiff remained self represented from Ms. Greenberg's withdrawal to February 22, 2010 when this Part appointed Mr. Mitchell Newman Esq. as Wife's attorney for the issues of custody and visitation. On or about November 17, 2010, Mr. Newman made an application to be relieved as Wife's counsel which was granted without opposition. On or about December 3, 2010 Wife hired a privately retained attorney, Mr. Victor Mevorah Esq. Various scheduled trial dates were vacated to allow Mr. Mevorah an opportunity to prepare for trial. In December of 2011, on the eve of trial, Mr. Mevorah moved to be relieved as counsel based on, among other issues, Wife's inability to pay any further legal fees. His application was denied.
This matrimonial action was assigned to the Matrimonial Part 11 (Adams, J) on January 17, 2006. At the Preliminary Conference held on February 21, 2006, this matter was transferred to the IDV Part (Adams, J). That Part recused itself leading to a re-assignment to Trial Part 12 (Aliotta J.). The then pending criminal case against Husband remained in the IDV Part (then Rothenberg, J). In addition to the above, Special Referee Faye DeGrimston was assigned to decide various pre trial motions and Judicial Hearing Officer Michael Ajello was appointed to oversee depositions.
Ms. Aplin has commenced a plenary action against Defendant Husband seeking a money judgment for additional legal fees allegedly never paid by Husband or Wife which matter is currently pending before this Part.
Defendant Husband was represented by Mr. Robert Schwartz Esq. at the commencement of this action until October 26, 2006 when he was relieved on consent. Defendant proceeded Pro Se until October 12, 2007, when the law firm of Kasowitz, Benson, Torres & Freidman, LLP substituted in as counsel. On or about August 6, 2008, this firm was relieved by Defendant based on his alleged inability to pay, subject to various charging and retaining liens. (See Consent to Change Attorney dated August 6, 2008). Husband represented himself until May of 2010 when he retained Ms. Anne–Louise DePalo Esq. Ms. De Paolo was relieved on consent by Order dated January 12, 2011 when Husband claimed he could no longer afford to pay her. Defendant represented himself at trial though he admits that he utilized the services of a “ghost attorney” to assist him with the preparation of documents at various times throughout the proceedings. Throughout this long litigation, Defendant Husband also utilized the representation of a real estate attorney, and at least one other matrimonial attorney.
By Preliminary Conference Order dated February 21, 2006, the parties agreed that Wife would be granted a divorce on the grounds of constructive abandonment. This agreement was further codified in a Short Form Order dated March 21, 2010. On or about January 24, 2006, Defendant Husband was arrested which resulted in a criminal case being commenced against him which was subsequently transferred into the IDV Part (Adams, J). A Temporary Order of Protection was issued in favor of Wife and against Husband. Due in part to the pending criminal case, Husband was ordered to have visits with his daughters supervised by Ms. Diane Hesseman L.M.S.W.
By Order dated April 28, 2006, Dr. Stephen Herman was Ordered by the Court to conduct a forensic evaluation of the parties and subject children with recommendations as to custody and visitation. Dr. Herman's initial report dated November 10, 2006 recommended an award of custody of J.L.G and J.G. to Mother with an award of unsupervised visitation to Father (Pl.Ex.38). At a court appearance before Justice Aliotta on December 12, 2006, wherein he was advised of this recommendation, Husband consented to an Order of Sole Custody to Wife and Wife consented to an Order of unsupervised visits for Husband. (See Order dated 12/16/06). Despite this Consent Order, Wife credibly testified at trial that Husband called ACS a number of times alleging that she committed acts of neglect against the children. The Court notes that all of these child protective services investigations were deemed unfounded after investigation. Wife further testified, and Husband admitted that he also employed, at various times, a private investigator to follow Wife. Wife credibly testified that she believed the investigator was hired in an effort to compile evidence to use against her in these proceedings.
On June 25, 2007, the criminal case against Husband was tried and dismissed by the Hon. Karen Rothenberg. The companion Family Court docket, a Family Offense Petition (Docket O–3762/08) brought by Wife against Husband was tried before this Part in March of 2011. By Short Form Order dated March 9, 2011 this Court dismissed Wife's Petition as she failed to meet her burden of proving that Husband committed a specified family offense. On that date Wife's Temporary Order of Protection was vacated.
After Wife's Family Offense Petition was dismissed, Husband commenced a Civil Court action alleging false arrest and other charges against Wife and the City of New York. During the course of the present divorce trial, Husband testified that the Civil Court action was resolved in his favor after he obtained a default judgment against Wife in the amount of $300,000. This default judgment was based upon Wife's failure to appear in court. Wife attempted to explain her non-appearance in Civil Court by claiming that she arrived late, encountered Husband in the courthouse and that he falsely told her that the matter was adjourned. Husband has recorded the default judgment against the marital home. Wife claims that the judgment was levied against the home to defeat any possible award of equitable distribution she may receive with regard to this property. Despite her claims of fraud, Wife has never moved to vacate the default judgment against her.
Prior to the Consent Order of Custody dated December 12, 2006, Rita Kaufman Esq. of the Children's Law Center was appointed to represent the subject children J.G. and J.L.G. (See Order dated February 21, 2006, Adams, J). Ms. Kathleen Garrigan was appointed to represent the child Jo.G. (See Order dated March 14, 2006, Adams, J). During the course of the litigation, among other motions, Husband moved on two separate occasions before two different Judges to disqualify Ms. Kaufman and the Children's Law Center on the grounds of alleged bias against Husband, and an alleged inability to properly represent the interests of the subject children. These motions were denied as was Husband's motion to renew and reargue the same.
After custody of J.G. and J.L.G was resolved, for the second time, in March of 2011, Ms. Kaufman and Ms. Garrigan were relieved as counsel. Ms. Garrigan was granted a judgment and lien on the marital premises to satisfy outstanding Court Ordered legal fees that Husband failed to pay. During the course of these proceedings Ms. Valerie Van Leer–Greenberg Ms. Alison Aplin, and the law firm of Kasowitz, Benson, Torres & Freidman, LLP were also granted judgments and liens on Husband and the marital property at issue in this divorce.
By Pendente Lite Motion filed June 16, 2006 (Seq. No. 003) Wife sought, among other relief, an award of temporary spousal maintenance, child support and counsel fees. By Order dated October 4, 2006 (the “Pendente Lite Order”), Husband was ordered to pay $4,000 per month in temporary maintenance and $2,294.24 per month in temporary child support for a combined monthly total support award of $6294.24 effective October 11, 2006. The Pendente Lite Order further directed Wife to “maintain the marital residence including the payment of the mortgage, utilities, car note and car insurance for herself, and school tuition for the two daughters”. At that time this Order was issued the mortgage payment alone was $6,400, which amounts to approximately $100 more than Wife's combined support award. Wife subsequently moved for an upward modification of the Pendent Lite Order. That motion was denied by Order dated June 27, 2007. By Notice of Appeal dated July 24, 2007, Wife appealed the Order denying her upward modification to the Appellate Division Second Department. In a written decision the Appellate Division denied Wife's appeal. See G. v. G., 56 A.D.3d 424, 867 N.Y.S.2d 474 (2d Dept.2008).
In or around July of 2012, Husband made his second application for a change of custody based on the physical condition of the marital home and the presence of dangerous mold therein. On or about July 10, 2012 Ralph Porzio, Esq. was appointed to represent the subject children J.G. and J.L.G. in relation to Husband's application. As Husband alleged a change in circumstances and approximately six years had elapsed from the first forensic evaluation, the Court appointed Dr. Peter J. Favaro Ph.D. to conduct a second forensic evaluation. After receipt of Dr. Favaro's report Wife made an application for Dr. Herman to prepare an update to his forensic report. Wife's application was granted and Dr. Herman prepared an updated report on November 5, 2010.
On or about August 20, 2009, Wife was arrested based on a Criminal Court Complaint sworn out by Husband. After a bench trial held on May 16, 2014 in the Criminal Court (Mattei, J.), Wife was convicted of a violation of Penal Law section 240.26(1) Harassment in the Second Degree. Wife was sentenced on May 30, 2014 to a one year conditional discharge. A two year Order of Protection was granted in favor of Husband subject to Family and Supreme Court Orders. This Order of Protection will expire on May 29, 2016. On the same day she was sentenced by the Criminal Court Wife filed a new Family Offense Petition against Husband (Docket O–2271/14), which resulted in the issuance of a Temporary Order of Protection in her favor. However, this matter was dismissed on August 6, 2014 when Wife failed to appear in Family Court.
Throughout the course of this protracted litigation, the former marital premises has been the subject of numerous foreclosure actions none of which have proceeded to a foreclosure sale. In addition to the actions commenced against the marital home, an investment home and dock purchased by the parties at * Harbor Court, Staten Island, New York was foreclosed upon, and the parties' yacht was repossessed. Since the commencement of this litigation virtually all of the assets owned by the parties have either gone missing or have been drained of equity. Wife alleges that Husband has engaged in a pattern of delay and divert using multiple courts, and countless tactical maneuvers to gain time to dissipate, dispose of or otherwise unlawfully transfer away assets. Husband accuses Wife of delaying this litigation by switching lawyers, asking for adjournments, and consistently arriving late for court appearances. In short, each party blames the other for the failure of this litigation to be brought to a close within a reasonable time period and for the emotional and financial toll it has taken on their family.
Preclusion Order
During the course of these proceedings Wife has made numerous attempts to compel Husband to comply with her discovery demands. When Husband failed to comply with Court Ordered depositions, a Judicial Hearing Officer was assigned to preside over the examination. (See Order dated June 18, 2006, Minardo, J). Shortly thereafter, J.H.O. Ajello made a recommendation to the Court that Husband be held in contempt for his failure to produce documents or make himself available for the Court Ordered depositions. By Report with Recommendations dated November 20, 2006, Special Referee Faye DeGrimston recommended to the Court that Husband be precluded from offering testimony as to “any of the financial issues upon which he failed to disclose”. Referee DeGrimston further recommended that all financial issues be resolved in Wife's favor. According to Referee DeGrimston's report the only item of financial discovery exchanged by Husband was a 2005 tax return.
On April 17, 2007 Wife moved by Notice of Motion to confirm the Special Referee's Report. By Short form Order dated April 18, 2007 Referee DeGrimston's recommendations were adopted by the then presiding Justice (Aliotta, J). Accordingly, as of April 18, 2007 Husband was precluded from offering any financial evidence at trial other than his 2005 tax return, and all financial issues were to be resolved in Wife's favor. See Hartloff v. Hartloff, 296 A.D.2d 847, 745 N.Y.S.2d 361 (4th Dept.2002) ; See also, Pearl v. Pearl, 266 A.D.2d 366, 698 N.Y.S.2d 160 (2d Dept.1999) ; Miceli v. Miceli, 233 A.D.2d 372, 650 N.Y.S.2d 241 (2d Dept.1996).
The Trial
After extensive motion practice, and extended conferencing, this bitterly contested divorce proceeding was tried before this Court for at least twenty days spanning from October 18, 2012 to April 17, 2014. Plaintiff Wife testified on her own behalf, and called Husband and the first forensic evaluator, Dr. Herman, as a witness. Wife introduced various documents into evidence (Pl.Ex.1–41). Defendant Husband testified on his own behalf and called Dr. Peter Favaro as a witness. Husband also introduced documents into evidence (Def.Ex.A–R). Judicial Notice was taken of several documents (J.N. 1–28). In camera examinations of the subject children J.G. and J.L.G. were held on April 17, 2014. Both parties submitted questions for consideration at the in camera examination. After numerous requests for extensions of time, written summations were received from all parties on or before September 30, 2014. A “Rebuttal Summation” was submitted by Husband on October 29, 2014 in purported opposition to the summation submitted by Wife's counsel. A second “Rebuttal Summation” was submitted by Husband on November 10, 2014. While neither of these Rebuttal Summations were authorized by this Court, they were not objected to by either Wife's attorney, or the attorney for the children and accordingly were considered for the limited purposes indicated below.
For the reasons set forth below, a Judgment of Divorce is hereby granted to Wife on the grounds of constructive abandonment pursuant to DRL '170(1). A Final Order of Sole Legal and Physical Custody of the two subject children is granted to Husband with substantial parenting time awarded to Wife as delineated herein. The issues of equitable distribution, maintenance, child support and counsel fees are decided as set forth below.
Factual Findings
At trial, both parties testified as to a litany of events that occurred during the course of their marriage and throughout the course of this bitter litigation. Rather than recount each and every incident, this Court makes the following findings of fact regarding those events deemed most significant to this Decision.
A. Plaintiff Wife
Plaintiff Wife is currently 54 years old (dob 11/04/60). Wife attended Our Lady of Guadeloupe Elementary School, New Utrecht High School, and earned approximately three years of college credits from Saint John's University. Prior to marriage, Wife worked as a contract analyst for Paramount Pictures, and then for Money Magazine. Wife stopped working sometime in 1997 when she became pregnant with the parties' second child J.G. At that time, Wife's annual salary was approximately $45,000. Wife credibly testified that the parties agreed that she would remain home to raise the children. Wife has not worked outside the home since she left the work force in 1997. She claims that she lacks marketable skills based on her age, her lack of a college degree, her unfamiliarity with modern technology and her deteriorated health. Throughout the marriage, Husband would deposit funds by check or wire into Wife's checking account for her clothing, food, shopping, and other discretionary expenses. He also gave her cash whenever requested and frequently showered her with luxurious gifts.
B. Defendant Husband
Husband is a former holder of a Series 7 license. He was employed with J.T. Moran & Co., Inc. a now defunct “boiler room” broker-dealer. On February 7, 1991, Husband was convicted after pleading guilty to a federal felony information charging him with one count of mail fraud in connection with his employment at Moran. See United States v. R. G., 91 CR 25 (E.D.N.Y.1991). Thereafter, the Securities and Exchange Commission commenced an administrative proceeding against Husband alleging that he executed or facilitated a series of sham trades designed to generate false paper profits for the company. See SEC v. John T. Moran, et.al, 92 CIV. 5209 (SDNY 1994). On October 5, 1994, Husband settled with the SEC. Under the terms of that settlement, he was barred from association with any SEC related entity with the right to reapply after five years. Husband has not sought to have his license reinstated.
Husband claims that he works as a “consultant” for “The Damon Group” with a partner named Mr. D.T. since he left J.T. Moran. Husband is compensated via commission. According to his testimony, Husband is a consultant with employment responsibilities including advising businesses how to restructure departments, the leverage and renegotiation of debt, and advice on how to facilitate alternative financing. (Tr. 6/04/13 pp. 21–25) Husband is also involved in advising private firms how to become public companies. In addition to his primary employment, Husband has also invested in other business ventures, including but not limited to real estate companies, financial consulting firms, a water filtration company, a landmark New York City restaurant, and various movie productions. Husband has also worked as an actor in at least one such production.
At trial, Wife credibly testified that Husband is a partner in Mr. D.T.'s firm and that they “split” the profits on any deal they work on together. She further credibly testified that Husband's work with Mr. D.T. is only one of many avenues of income available to him. However, Wife's information regarding Husband's financial situation is limited, and was actively frustrated, by Husband's failure to provide discovery. Husband's failure to provide financial information ultimately lead to his preclusion from offering testimony at trial.
Wife credibly testified that Husband controlled all the household finances during the marriage. He decided what companies, projects, and parcels of real estate to invest in, under what terms, and how much of an investment would be made. For example, Wife credibly testified that Husband invested in “Vermont Water” a water filtration company that ultimately went public in the year 2000 resulting in an approximate $7 million dollar profit. (Tr., 6/04/13 pp. 58–59).
On January 25, 2006, Husband was excluded from the marital home located at * * * Boardwalk Avenue by Temporary Order of Protection issued by Criminal Court (Meyer, J.). Husband then lived at various other residences including * Harbour Court, * * Mace Street and * * Weaver Street, all located in Staten Island New York. The subject children resided primarily with Wife until June of 2012 when the Court was advised that mold existed in the former marital home, and that it was likely a safety hazard. By Order dated June 26, 2012 the children were permitted to reside with Husband until such time as the mold condition in the former marital home was remediated. By Order dated October 24, 2012, Defendant Husband was ordered to pay for the mold remediation. On various subsequent court appearances Husband argued that Wife was frustrating the mold remediation process by not allowing the workers access to the home. Ultimately the mold was removed in or around June of 2013 after the contractor was put on the record to describe the difficulties he was having with the repairs. Despite the mold being removed, the Court allowed the children to continue to primarily reside with Husband as the attorney for the subject children advocated that the children wished to remain there and the circumstances had evolved such that a de novo review of custody was warranted. Husband formally requested a change in custody by Notice of Motion filed July 27, 2012 (Seq. No. 024). In an attempt to maintain frequent contact, by Order dated March 15, 2013 Wife was awarded parenting time with the subject children every day of the week with alternating weekends.
In or around December of 2013, Defendant moved with the subject children from * * Weaver Street to * * Dahlia Street a 5,000 square foot private home where he currently pays rent in the amount of approximately $4,000 a month.
1. Income:
Throughout the course of this protracted litigation, and particularly during the time this matter was before this Part, significant time has been spent attempting to ascertain Husband's financial situation. To date, the actual source and amount of Husband's annual income is uncertain. Defendant claims he works primarily as an investment consultant to Mr. D.T. A trial, he testified that his salary is based solely on commissions which vary on a monthly basis. For the period January through May 2013, Husband testified at trial that he earned $18,000 in January, $15,000 in February, “over $10,000 ” in March and April, and between $15,000–$16,000 in May of 2013. (Tr. 6/04/12, pp. 24–25). The Court finds Husband's testimony on the subject of his financial situation to be overly speculative and not credible. Wife argues that the amount of income he claims would not be able to sustain his affluent lifestyle. When asked what she reasonably believed Husband earned, Wife testified that Husband earned an annual salary of somewhere around $600,000 with peaks of close to $7,000,000 during the course of the marriage, with his current income being approximately $800,000. (Tr. 6/10/13, p. 37). When asked what basis she had for claiming Husband's income to be $800,000, Wife testified that her children have more money than she does with no charge card limit imposed by their father. (Tr. 6/10/13, p. 40–41).
As per the Preclusion Order dated April 18, 2007 Husband is precluded from offering evidence regarding his finances other than his income in 2005 as that was the only tax return he exchanged in discovery. That tax return indicates total income of $130,830. However, a review of his contemporaneous sworn Statement of Net Worth dated December 5, 2005, which annexes his 2005 return, lists monthly expenses totaling $22,018.00, an amount not sustainable by his reported 2005 income. Moreover, in his Affidavit dated November 28, 2007, Defendant swore that his average gross annual income for the years 2001 to 2005 was approximately $410,504, a figure which is more reflective of his sworn to monthly expenses. Accordingly, the Court shall use the sum of $410,504 as his established earning capacity and impute that amount of income to him. See Kessler v. Kessler, 118 A.D.3d 946, 991 N.Y.S.2d 43 (2d Dept.2014) ; See also, DiPalma v. DiPalma, 112 A.D.3d 663, 977 N.Y.S.2d 276 (2d Dept.2013). In imputing income to Husband the Court has considered Husband's lengthy testimony regarding discrepancies in his bank deposits as compared to his tax returns. (Tr. 5/17/13, pp. 15–19). In 2006 alone Husband's tax return indicates income of $51,609 while the deposits into his checking account during that year total over $265,000. Husband's account of his finances is patently not credible.
Husband's purported tax returns for years 2002–2011 were introduced by Wife without objection on her direct case as Plaintiff's Ex. 1A–J. The admission into evidence of these documents by Wife on her direct case does not relieve Husband of the preclusion consequences with respect to his ability to prove his affirmative claims and/or defenses as all financial issues are to be resolved in Wife's favor.
Husband claims, despite being precluded, that his income has dropped significantly since the divorce action was commenced in December of 2005. While the record is very limited as to Husband's income, the sums more recently claimed by Husband could not sustain his lifestyle. Accordingly, even if Husband were not precluded, the Court would likely find that Husband's expenses are the most clear indicator of his actual income. See Hainsworth v. Hainsworth, 118 A.D.3d 747, 987 N.Y.S.2d 215 (2d. Dept.2014) ; See also, DeSouza–Brown v. Brown, 71 A.D.3d 946, 897 N.Y.S.2d 228 (2d Dept.2010). In this regard, Wife credibly testified that Husband currently employs the services of a cook, driver, housekeeper, private tutors, and various babysitters. In addition, Husband funds elaborate vacations for the children including trips to Bermuda and Disney World. All three children have always attended private schools and J.G. and J.L.G continue to do so at this time. Husband also fully supports Jo.G. Indeed, Husband recently rented a 5,000 square foot home at a monthly rental of $4,000. not including utilities and other related expenses. Husband also claims that the has faithfully paid over $6,000 per month in support, on top of his expenses, for years, although Wife claims he owes significant arrears as addressed later in this decision.
Finally, in what purports to be his first Rebuttal Summation, Husbands admits that all of the income figures alleged in Wife's summation are, in fact, lower than his actual income for those years. As indicated above, the Court has considered Husband's rebuttal submission for this admission only. Husband's admission is indicative of the discovery problems that plagued the pre trial proceedings and led to the Order of Preclusion. Indeed, Husband's lack of credibility regarding his finances is perhaps most evident by his attempt to explain the disparity between his admitted monthly expenses and his reported income. Husband claims that he borrowed approximately $150,000 from three friends, $100,000 from his parents, and another “couple of hundred thousand” from his employer D.T. According to Husband, there is written documentation supporting these debts though said evidence was not even offered by Husband at trial. Husband further claims that none of these lenders expect these sums to be repaid. Husband's arguments attempting to explain how he could finance his lifestyle in light of his underreported income are patently unbelievable.
The Subject Children
J.G. was born on October 1, 1997. She is currently 17 years old. She is in her Junior at a parochial high school on Staten Island. J.L.G. was born on November 28, 2001 is currently 13 year old. She is in the 7th grade in a parochial elementary school on Staten Island. Father has consistently paid their tuition, private tutoring, test preparation and all other costs associated with their academics. Both children do well in school and are well adjusted despite the disruption this ongoing litigation has had on their lives. J.G. is currently researching out of state colleges and intends to reside on campus. Both parents are supportive of her decision to live away at school. Father has agreed to pay all attended costs. Father is not seeking any form of child support from Mother for either child should he be awarded custody. This position, consistently maintained by Husband, amounts to an express, voluntary, and knowing waiver of child support. See Stevens v. Stevens, 82 A.D.3d 873, 918 N.Y.S.2d 879 (2d Dept.2011) ; See also, O'Connor v. Curcio, 281 A.D.2d 100, 724 N.Y.S.2d 171 (2d Dept.2001) ; Matter of Hastie v. Tokle, 122 A.D.3d 1129, 997 N.Y.S.2d 172, 2014 N.Y. Slip Op 08090 (3d Dept.2014). The Court notes in this instance that Husband is by far the monied spouse and has provided financial support for the children throughout the course of this litigation without financial contribution from Wife.
Since the condition of their home deteriorated in or around June 2012, the children have resided with their father (See Order dated June 26, 2012). Jo.G. also resides in the home, however, he is in and out of residential treatment for his psychiatric condition. While Jo.G.'s behaviors have been regarded as distracting and annoying to J.G. and J.L.G., neither child reports feeling afraid of Jo.G. No allegations of physical altercations among Jo.G. and these children have been reported. While Dr. Herman testified as to the urgent need for Jo.G. to be correctly diagnosed and treated, Dr. Herman did not feel that Jo.G.'s presence in the home should preclude the girls from living there.
The Forensic Evaluators.
By Order dated April 28, 2006, Dr. Herman was ordered to conduct a forensic evaluation. By Report dated November 10, 2006, he recommended that an Order of Sole Custody be granted to Mother for J .G. and J.L.G. which was consented to by Father in a Consent Order dated December 12, 2006. Pursuant to that Order, the children resided with Mother and visited with Father.
In or around May 2012, this Court was alerted to the deteriorated condition of the children's home. After investigation, the Administration for Children's Services issued a report dated July 10, 2012 which was made part of the Court's record that date. After consideration of that report, and the testimony of the parties, this Court issued an Order permitting the children to reside with father until such time as hazardous mold condition was fully remediated. Mother was granted a liberal visitation schedule which was to occur away from the mold infested home.Since the June 26th Order, J.G. and J.L.G. have resided with Father and by all accounts thrived under his care. While the mold condition was finally resolved in June of 2013, Husband maintained that the children were doing much better in his care. In or around July of 2012 Husband filed a motion for a change in custody, alleging a change in circumstances subsequent to the mold. (Motion Seq. No. 24). Husband's application was referred to the trial. At the time Husband filed his motion, the attorney for the subject children argued that the children should remain in Husband's care. After considering the totality of the circumstances, and not wanting to further disrupt the lives of the subject children, the Court allowed the children to remain with their Father pending the completion of trial. Mother was granted various Orders of visitation culminating in an Order of liberal visitation which permitted her to see the children every week day and on alternate weekends. (See Order dated 12/10/13). Unfortunately, Mother did not avail herself of the vast majority of the parenting time allotted under this Order, much to the disappointment of the children.
Father now moves for a change of custody based on Mother's failure to provide a safe environment for the children, and based on the children's desire to remain with him. By Order dated March 20, 2013, this Court appointed Dr. Peter Favaro to conduct a second forensic evaluation based upon the alleged changed circumstances. Despite being given an opportunity to do so, Mother initially failed to cooperate with Dr. Favaro's evaluation. Accordingly, on June 27, 2013, Dr. Favaro issued a report with recommendations to the Court. (AFC Ex. 10). However, as this report did not include participation by Mother it was limited in scope and lacked probative value. On a record subsequent to the receipt of the report, Mother requested another opportunity to cooperate with the evaluation. In an effort to reach an equitable decision, with Mother's participation, she was afforded a final opportunity to cooperate. On September 24, 2013, Dr. Favaro submitted two updated reports which included the participation of Mother. (AFC Ex. 11 & 12). In the final version of his Forensic Report, Dr. Favaro recommends custody to Father with liberal parenting time allotted to Mother.
As this recommendation differed from of that of Dr. Herman, made more than six years prior, Wife made an application for an update of the initial report. Over Husband's objection, the Court granted Mother's application to allow Dr. Herman to update his report. Dr. Herman issued his updated Forensic Report dated April 18, 2014, in which he changed his initial recommendation of custody to Mother and recommended custody to Father. So by the time the trial concluded, both Dr. Favaro and Dr. Herman ultimately recommended that Father be granted an Order of sole physical and legal custody of J.G. and J.L.G, and further that the children be granted liberal visitation with Mother. The position of the forensic evaluators is consistent with the position ultimately taken by the attorney for the children. When asked at trial why he changed his position to now support an award of sole custody to Father, Dr. Herman explained that much had changed in the lives of the children since he made his initial recommendations several years ago. For example, the children were much older, were better able to articulate their positions, and had expressed sound reasoning” for their preferences. Furthermore, in Dr. Herman's opinion, Mother seemed to have become significantly more unstable and less of a consistent reliable resource for the children as they matured and their needs changed.
Custody
It is undisputed that an award of sole physical and legal custody was previously granted to Wife on consent of Husband. However, it is well settled that an agreement between parties is not permanently binding, as the Court retains jurisdiction for the purpose of making such further custody decrees as it finds appropriate under the circumstances existing at the time the application for a change in custody is made. See Eschbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 (1982). However, “where parents enter into an agreement concerning custody it will not be set aside unless there is a sufficient change in circumstances since the time of the stipulation and unless the modification of the custody agreement is in the best interests of the child”. Matter of Lazo v. Cherrez, 121 A.D.3d 999, 995 N.Y.S.2d 141 (2d Dept.2014). Once the door to the issue of custody has been opened by a sufficient showing of a change in circumstances, the Court must determine the best interests of the child by a “review of the totality of the circumstances.” Matter of Weinberger v. Monroe, 120 A.D.3d 583, 990 N.Y.S.2d 819 (2d Dept.2014) ; See also, Nusbaum v. Nusbaum, 106 A.D.3d 791, 964 N.Y.S.2d 628 (2d Dept.2013).
After reviewing the record, together with the motions filed by Husband, the Court finds that Husband has met his initial burden of showing that a change of circumstances existed such that a de novo review of custody is warranted. See Matter of Estevez v. Perez, 123 A.D.3d 707, 998 N.Y.S.2d 413, 2014 N.Y. Slip. Op. 08430 (2d Dept.2014). Husband has shown, in the first instance, that the marital home where the children resided with Mother was permitted to deteriorate to the point where it was no longer safe for the children to remain there. A septic tank backup caused human waste to build up into the house, unresolved leaks caused a severe mold condition, and there were various species of fungi growing out of the carpet. Moreover, there was intermittent heat and no air conditioning for a prolonged period of time. The mold condition that existed in the basement was so severe that this Court felt in necessary to Order ACS involvement. The Court finds that the deteriorated physical condition of the home, coupled with Wife's inactivity in addressing the situation, and her acquiescence in allowing the children to reside in a dangerous home, constitutes a sufficient change of circumstances such as to permit Father an opportunity to be heard on his change of custody application. See Matter of Hillord v. Davis, 123 A.D.3d 1126, 2014 N.Y. Slip Op 09131 (2d Dept.2014) ; See also, Matter of Lore v. Scalfani, 114 A.D.3d 685, 979 N.Y.S.2d 840 (2d Dept.2014).
At trial, both parents blamed the other for the failure to maintain the former marital home. Mother blamed Father for not paying for the repairs, and Father blamed Mother for obstructing the repair process by diverting to her own use money he gave her for the repairs and by refusing to allow repairmen access to the home. This Court finds that while both parties are to blame for allowing their children's home to become uninhabitable, it was Wife that allowed the condition to remain without taking proactive action, and that she frustrated the repairs once they were Court Ordered.
Regardless of who bears the blame for relocation, it is undisputed that the children were relocated to their father's residence. It is also clear to the Court that since that relocation the children have thrived in the care of their Father. Moreover, since relocation both of these children, now aged 17 and 13, have made their positions clear to this Court during extensive in camera examinations, and through the advocacy of their counsel.
Moreover, the Court has given serious consideration to the undisputed fact that Mother, for one reason or another, has not utilized the generous visitation schedule afforded to her. While Mother initially claimed that she was unaware of the visitation Orders which were asked for by her lawyer, discussed on the record, and granted in open court, her testimony on the subject is not credible. Mother acknowledged the Order at trial and admitted that sometimes the visits don't happen because the girls have plans, are busy, or simply are not amenable to making time to see her. The children, on the other hand, feel that it is Mother who fills her day with frivolous errands and tasks which make her unavailable to them even though she is not employed at this time.
This Court also takes judicial notice of Mother's conviction after trial in the Criminal Court of a violation of Penal Law section 240.26(1), Harassment in the Second Degree, for acts committed against Father. This Court also considers and takes judicial notice of the sentence imposed on Mother as a result of that conviction which includes a one year conditional discharge with the added specific condition that Mother enter into and complete an anger management program, and that she abide by a two year final Order of Protection in favor of Father.
Furthermore, despite her claims, Mother did not prove at trial that Father had engaged in acts of alienation designed to estrange the children from her. While Wife claims that Father seeks to exclude her from her children, Dr. Favaro observed that “it is not readily apparent that mother makes any independent effort, and appears much more likely to blame, than to exert effort” (AFC Ex. 11, p. 10). This Court finds that it is Mother's passive, cavalier approach to spending time with J.G. and J.L.G which has caused them disappointment and fostered any reluctance they may have in bonding with her.
In short, the children feel that while Mother fights hard for them in Court, she does not fight hard for them in life. These children need to be shown that spending time with them is paramount to endless “errands” and Mother's busy lifestyle. The subject children, now 17 and 13 years old, do not feel that they are Mother's priority at this time. Moreover, on the subject of alienation, the primary example of alleged alienation alleged by Mother against Father is that J.G. and J.L.G. have credit cards from Father and have more money to spend than she does, thus humiliating her as a parent. Father's generosity toward these children is not a basis for finding that he has alienated them from their mother.
While neither of these parents are perfect, it appears that the children are thriving with Father. The Court finds that Father presents as a more structured and focused influence at this critical time in the children's lives, and the more stable parent. See Matter of Crivelli v. Tolento, 100 A.D.3d 884, 955 N.Y.S.2d 88 (2d Dept.2012). It is notable that while Husband is involved in various business activities, he exhibits more time to devote to the children than Mother, who is currently unemployed. Moreover, Wife's testimony at trial clearly indicates that she sees Husband as evil, conniving, and manipulative and that to a certain degree she feels jealous that Husband treats the children better than he treats her. Accordingly, while both parties clearly bear animosity towards one another, the Court finds that Husband is the parent more likely to foster the relationship with the non custodial parent. See Matter of Cobourne v. James, 35 A.D.3d 734, 826 N.Y.S.2d 696 (2d Dept.2006).
After consideration of the totality of the circumstances, this Court finds it is in the best interests of these 17 and 13 year old girls for Father to be granted sole legal and physical custody subject to Mother's parenting time. See Matter of Mack v. Kass, 115 A.D.3d 748, 981 N.Y.S.2d 593 (2d Dept.2014). After considering the voluminous documentary evidence submitted at this trial, the testimony of the witnesses as observed by this Court, and after considering Dr. Favaro's and Dr. Herman's thoughtful recommendations, the Court agrees with the attorney for the child that while far from perfect, Defendant Father presents as the parent better fit to be the sole custodial parent of J.G. and J.L.G and better able to provide a stable, nurturing, environment for these children long term. See Matter of Andrews v. Mouzon, 80 A.D.3d 761, 915 N.Y.S.2d 604 (2d Dept.2011). The consistent opinion of two separate forensic evaluators was afforded significant weight in this Court's decision. See Matter of Doyle v. Debe, 120 A.D.3d 676, 991 N.Y.S.2d 135 (2d Dept.2014) ; See also, Matter of Lynch v. Velella, 85 A.D.3d 1032, 925 N.Y.S.2d 846 (2d Dept.2011).
In awarding custody to Father, this Court has also given significant weight to the in camera examinations of J.G. and J.L.G, who both presented as extremely bright and mature. See Matter of Hall v. Hall, 118 A.D.3d 879, 987 N.Y.S.2d 608 (2d Dept.2014) ; See also, Matter of McVey v. Barnett, 107 A.D.3d 808, 967 N.Y.S.2d 403 (2d Dept.2013). Despite Mother's claims, these children did not appear to have been cajoled or brain washed into stating their preferences. To the contrary, both children were highly articulate and candid with their attorney and this Court in making their preferences known. After the privilege of speaking to these children in camera, this Court remains baffled by the parents' inability to appreciate the toll their nine year long battle has had on their children. As stated eloquently by Dr. Favaro, it is beyond comprehension why they “refuse to drop their swords to support and (especially in this case) enjoy the miracles they have created.” (AFC Ex. 12, p. 4).
Visitation
With respect to J.G., the Court notes that, by the time this Decision issues, she will be in the second half of her Junior year of high school. Both parents support her desire to dorm away at a college of her choice. Both parties agree that J.G. at her advanced age is in a position to communicate with Mother to set up parenting time. The Court acknowledges the attorney for the child's position that parenting time with Mother should be at J.G.'s discretion rather than pursuant to a strictly defined schedule. Accordingly, as to J.G., who will soon age out of this Court jurisdiction, Mother shall have a liberal visitation schedule to be agreed upon between the parties with considerable thought afforded to the wishes of J.G. This finding recognizes the reality of what is now occurring between J.G. and Mother and eliminates any risk of further diminishing their relationship by imposing a strict visitation schedule which would potentially subject her to a contempt finding should she refuse to see her Mother pursuant to the mandated schedule. As there is currently an Order of Protection in effect from Criminal Court which prohibits communication between the parties, but has been made subject to the Orders of this Court, the parties are hereby authorized to contact each other, via email or text message, for the limited purpose of scheduling visitation between Mother and J.G. Mother may also contact J.G. directly regarding visitation, provided Husband is informed by text or email of the agreed upon times.
While there is support in the record for a finding of liberal, non structured, visitation for the elder child J.G. the same does not apply to J.L.G., who is now 13 years old. As the younger child, J.L.G needs a more stable and structured schedule. It is this Court's expectation Mother (and Father) will respect the schedule Ordered herein as this Court finds it to be in this younger child's best interest.
Accordingly, it is hereby Ordered that Mother shall have parenting time with J.L.G. Monday through Friday from pick up at her bus stop until 7:00 p.m. with drop off Father's residence, curbside. This curbside drop off shall not be a violation of the Order of Protection. Mother shall also have parenting time with J.L.G. on alternate weekends from Friday after school until Monday drop off at school. If there is no school on Monday, then Mother shall have parenting time on her weekends until Monday at 7:00 p.m. The Court notes that this schedule is consistent with Wife's current visitation schedule which she has been admonished to utilize.
During their parenting time each party shall retain authority to make day to day decisions while they are with the child. However, as to all major issues, Husband, as the parent with sole custody, will have final decision making authority. Both parents shall have unlimited access to the children's medical and educational records. However, each parent shall be responsible for securing said information. Both parties shall be entitled to attend all school, extracurricular and significant events in the subject children's lives.
Father has testified at trial that he believes the parties can confer on issues respecting the safety, health, welfare and education of these children. However, the Court notes that there is currently a Criminal Court Order of Protection (Sciarrino J.) which prohibits communication between the parties. This Order expires on May 29, 2016. To this end, Mother shall have full access to all medical and educational providers of both children as detailed above, and may contact Husband by email or text regarding the safety and welfare of the subject children, and to facilitate visitation with J.G.
a. Holiday Time.
For the reasons set forth above, the following holiday and vacation schedule shall only apply to the subject child J.L.G. While the Court encourages J.G. to follow a similar schedule, it will not be mandated after considering her stated wishes, and her advanced age and maturity.
The parties shall alternate all of the major holidays and school vacations as set forth below. As a general rule Holiday time shall override periods of normal visitation and a specific holiday will override a school break period for that day. Parenting time shall commence at 10:00 a.m. on the first day of the holiday or vacation period and shall conclude 8:30 p.m. on the final day of the visit unless otherwise specified below. Mother shall pick J.L.G. up from Father's home curbside at the start and conclusion of holiday and vacation time.
Holidays that fall on school days such as Halloween and the child's birthday shall commence at school dismissal (or 3:00 p.m. if there is no school) and end at 8:30 p.m. Mother's parenting time for Christmas break, Spring break, and Winter break shall include overnights for any weekday parenting time.
Mother's Day shall always be with Mother and Father's Day shall always be with Father. Each parent shall have a total of two non-consecutive weeks of vacation with J.L.G. during the months of July and August. One week shall be in July; the other week shall be in August. Each party shall designate by email their vacation weeks by May 1 of each calendar year or be subject to the other parent's designated weeks. Mother shall be granted first choice in the event that both parties seek the same weeks provided she has timely designated her weeks in accordance herein.
| The following holidays shall be alternated | |||
| J.L.G's Birthday | even years | Motherodd years | Father |
| Thanksgiving | even years | Motherodd years | Father |
| Christmas Eve: | |||
| Christmas Eve visit shall begin at 4 p.m. and end at 11 a.m. on Christmas Day | even years | Fatherodd years | Mother |
| Christmas Day | even years | Motherodd years | Father |
| New Years Eve | |||
| New Years Eve visit shall begin at 4:00 p.m. and end at 12:00 p.m on New Years Day | even years | Motherodd years | Father |
| New Years Day | even years | Fatherodd years | Mother |
| Martin Luther King Day | even years | Motherodd years | Father |
| President's Day | even years | Fatherodd years | Mother |
| Good Friday | even years | Fatherodd years | Mother |
| Easter | even years | Motherodd years | Father |
| Memorial Day | even years | Fatherodd years | Mother |
| Fourth of July | even years | Fatherodd years | Mother |
| Labor Day | even years | Motherodd years | Father |
| Halloween | even years | Motherodd years | Father |
| Columbus Day | even years | Fatherodd years | Mother |
| Veteran's Day | even years | Motherodd years | Father |
| December Winter Recess | The parties will alternate Winter Recess with Mother having weekday overnight visitation for the entire break on odd years and Father having weekday overnight visitation for the entire break on even years. | ||
| February Mid Winter Recess | The parties will alternate Mid Winter Recess with Mother having weekday overnight visitation the entire school break on even years and Father having weekday overnight visitation for the entire break on odd years. | ||
| April Spring Break | The parties will alternate Spring break with Mother having weekday overnight visitation the entire school break on odd years and Father having weekday overnight visitation for the entire break on even years. |
As the Court cannot reasonably anticipate every occurrence or event that may occur which would require a slight adjustment or temporary modification of this schedule, the parties are hereby authorized to agree to reasonable modifications, or additional visitation time, in writing by text message or email. Such writing shall not constitute a violation of the Order of Protection currently enjoining Wife.
Equitable Distribution
The Domestic Relations Law recognizes that a marriage relationship is an economic partnership. As such, during the course of a marriage spouses share in both its profits and losses. When the marriage comes to an end, courts are required to equitably distribute both the assets and liabilities remaining from the marriage. See Fields v. Fields, 15 N.Y.3d 158, 905 N.Y.S.2d 783, 931 N.E.2d 1039 (2010). A trial court considering the factors set forth in the Domestic Relations Law has broad discretion in deciding what is equitable under all of the circumstances. See Krolikowski v. Krolikowski, 110 A.D.3d 1449, 973 N.Y.S.2d 502 (4th Dept.2013). Indeed, when it comes to the equitable distribution of marital property, Domestic Relations Law § 236(B)(5)(d)(13) authorizes the trial court to take into account “any other factor which the court shall expressly find to be just and proper.” Consequently, the trial court has substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances. See Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 881 N.Y.S.2d 369, 909 N.E.2d 62 (2009). Equitable distribution does not necessarily indicate equal distribution. See Henry v. Henry, 105 A.D.3d 903, 962 N.Y.S.2d 719 (2d Dept.2013). In making its equitable distribution decision, the Court has taken into account that Husband has been precluded from offering any testimony at the time of trial regarding financial issues and moreover that all financial issues are to be resolved in Wife's favor. The Court further notes that Husband's failure to comply with discovery, together with his pattern of dissipating assets, coupled with Wife's difficulties in articulately presenting her case frustrated this Court's ability to fairly distribute the property accumulated by this parties during the course of their marriage.
* * * Boardwalk Avenue.
As with all of the financial issues raised in this matter, the evidence and testimony offered in relation to the marital home was sparse and contradictory. It appears from the record that the parties purchased the former marital residence, a two story, approximately 4000 square foot single family ocean front home with 4 bedrooms and 4½ bathrooms, in or around 1998 though Husband claims it was 1997 and Wife 1996. Husband testified at trial that the parties paid approximately $860,000 for the house when it was purchased using funds obtained from the sale of marital property in Brooklyn. At the time the marital premises were purchased, the parties took out a mortgage the exact amount of which neither party could recall. At the time the Pendente Lite Decision was written, the mortgage amounted to $725,000. (See Order dated 10/4/06). Husband testified that he later refinanced the mortgage and took additional equity in the approximate amount of $100,000 out of the marital home.
Husband testified at trial that during the course of this protracted proceeding he has continuously argued for the marital home to be sold. By Motion Sequence No. 21, Husband moved for an Order appointing himself receiver to sell the marital home to effectuate a contract of sale he had allegedly negotiated in the alleged amount of $1,850,000, and to penalize Wife for not agreeing to the sale. In her opposition to that motion, Wife pointed out that that contract would require her to pay approximately $10,000 per month in rent to the buyer, who Wife alleged was associated in some way with Husband. Wife has consistently held that all of Husband's proposed transactions were actually “sham” transactions between himself and his associates.
It is undisputed that the mortgage has not been paid since the inception of this action, though the parties are still in possession of the home. Husband argues, correctly, that the Pendente Lite Order required Wife to pay the mortgage. However, Wife testified at trial that she was unable to pay the mortgage as Husband never paid the full amount of support which, in any event, totaled less than the mortgage payment. In a Decision dated June 27, 2007 (Aliotta, J), the Court noted that this home was already in foreclosure. By the time of trial, the mortgage had not been paid in over 6 years. (Tr. 6/19/13 p. 47). Husband testified that as of October of 2012 a total of $1.45 Million was owed on the house together with penalties and fees. (Tr. 10/24.12 P11). It is fair to anticipate that this amount owed has only increased while this decision was pending due to lack of payments, late fees, penalties, court costs, lender fees and other costs. By all accounts there is no equity left in this once valuable asset.
After considering the evidence in this trial, this Court finds that there is no alternative but to sell the marital home with the proceeds of sale to be first applied to mortgage arrears and other amounts owed to recorded creditors in accordance with applicable law . Accordingly, it is hereby Ordered that the home be placed on the market by Husband immediately. The home shall be sold by a licensed realtor to be selected by Husband with a commission rate not to exceed five percent. The home shall be sold at a listing price to be selected by the realtor with due consideration given to contemporary comparable sales in the same market. Husband shall have the final decision making authority as to the final sale price, but he must agree to any offer that comes within 5% of the realtors suggested listing price. In the unlikely event there are any proceeds from this sale after all expenses, liens and fees are paid, they shall be divided by the parties equally.
There are numerous liens that have been placed on this property including those levied by various attorneys in this case including Ms. Kathleen Garrigan, Ms. Alison Aplin, Ms. Valerie Van Leer–Greenberg, the law firm of Kasowitz, Benson, Torres & Friedman among others. Husband also claims to have levied a Default Judgment against Wife in the amount of 300,000. on this property based on his Civil Court action stemming from her filing of domestic violence charges against him in Family and Criminal Court.
Wife shall continue to have exclusive use and occupancy of the home pending sale, however Wife is hereby directed to comply with every aspect of the sale, including allowing the realtor, inspectors or prospective buyers to view the home upon 24 hours notice. Wife is hereby specifically directed to not interfere with the sale in any way. While Husband is being granted authority to make decisions regarding the sale, Wife shall have full authority to inquire with the realtor regarding the status of the sale.
The Court credits Wife's testimony that Husband was not consistent with his maintenance obligation, and moreover that the amount awarded was insufficient to pay the mortgage obligation even if he were consistent. However, by Order dated October 4, 2006 Wife was obligated to pay the mortgage, an obligation that was never modified by subsequent Court Order. Accordingly, crediting both Husband's argument that Wife was the party responsible for the payment of the mortgage, and Wife's claim that she was never awarded funds sufficient to do so, and moreover that Husband did not consistently pay the support awarded, any debts, costs, or penalties associated with the mortgage are to be split equally (50%/50%) between the parties after the house proceeds are applied.
b.Vacant Lot (Block * * * */Lot * * aka Leo's Lot).
Both parties credibly testified that during the course of their marriage, they jointly purchased various lots of undeveloped land adjacent to the marital home. The exact number of lots purchased is unclear, but it appears from the trial record that only one such lot remains. During the course of this litigation, this lot has been referred to as “Leo's Lot” adopting the name of an adjacent neighbor who had allegedly shown an interest in purchasing the property. The official identification of this lot is Block * * * */Lot * *. The current status of this parcel of property is in dispute, Husband asserts that the lot was previously sold along with a number of other vacant parcels. Wife argues that the property is still owned by Husband.
This parcel of land is adjacent to the marital premises. It was purchased by the parties subsequent to the purchase of the marital home and was titled solely in Husband's name. By Court Order dated December 20, 2007, Leo's Lot was ordered to be appraised by Wonica Realtors. By Order dated December 20, 2007, the parties agreed that this lot, which had an agreed upon appraised value at that time of approximately $325,000, would be sold with the proceeds divided equally between the parties. There is no indication in the record that the parties complied with this Court Ordered sale. To the extent that the lot currently exists, the parties are hereby directed to comply with the Order directing its sale. As the market appraisal previously utilized to set a listing price is likely stale, Wonica Realtors is hereby directed to sell the vacant lot at current fair market value with the proceeds to be divided between the parties. Husband shall have the final decision making authority as to the final sale price, but he must agree to any offer that comes within 5% of the realtors suggested listing price. Wonica's commission shall be at their usual and customary rate, but not to exceed five percent.
The Court notes that Husband testified at trial that this lot has already been “sold” however no documents were offered at trial in support of this claim. Moreover, in his “Statement of Net Worth Worksheet” dated July 10, 2012, Husband listed this vacant land as an asset and indicated a purchase price of $125,000 (Def.Ex.A). In the event that this lot was previously sold, Wife did not receive compensation for its sale. Accordingly, Husband is hereby Ordered to produce any and all documents relating to that alleged sale directly to Wife's counsel within 10 days and to pay Wife a distributive award equal to one half of the sale price within 60 days of the signing of the Judgment of Divorce.
c. * Harbour Court, Staten Island, New York with Boat Slip.
Husband testified that a condominium located at * Harbour Court in Staten Island, New York, was purchased in 2005, during the course of this marriage, but prior to the commencement of this action, for $530,000. Neither party ever resided in this residence though Husband testified that he intended to live there with the children after his separation from Wife. The parties invested the initial sum of $100,000 in cash which Wife credibly testified represented monies extracted from the equity in the marital home when Husband refinanced. The remainder of the purchase price was financed. Along with the property located at * Harbour Court, the parties purchased a related boat slip. There is a failure of proof on the part of both parties as to whether this boat slip was purchased as a separate entity from the condominium, or together with the property. Wife testified at trial that Husband still owns this slip, though she offered no evidence to substantiate this claim. Husband testified that the slip was lost to foreclosure together with * Harbour Court based upon his failure to pay the mortgage.
By Consent Order dated December 12, 2006, * Harbour Court was Ordered sold by then presiding Justice Thomas Aliotta. The parties agreed that the proceeds of the sale would be held in escrow by Wife's then attorney, Ms. Alison Aplin. Despite this Order, there is no evidence in the record that the home and boat slip were ever sold. Wife argues that following the issuance of this Order, Husband immediately stopped paying this mortgage and allowed the property to go into foreclosure. Husband testified at trial that he was not earning enough money to pay the mortgage on both * * * Boardwalk and * Harbour, but his testimony is not credible in light of the Pendente Lite Order which directed Wife to pay the mortgage related to * * * Boardwalk and Husband's admission that neither party paid the Boardwalk mortgage during the pendency of this action. There was no evidence offered at trial as to any steps taken by the parties to comply with the December 12th Order to sell the home while it still arguably had equity.
While there were no Orders concerning the payment of the mortgage on * Harbour Court it is undisputed that Husband was the only income producing spouse in this marriage, and the sole decision maker regarding the purchase and distribution of property. Moreover, the Court issued an Order dated July 18, 2006 prohibiting Husband from dissipating any assets and calling for the Status Quo to be maintained. See Pascazi v. Pascazi, 52 A.D.3d 664, 861 N.Y.S.2d 95 (2d Dept.2008) ; See also, Drazal v. Drazal, 122 A.D.2d 829, 505 N.Y.S.2d 703 (2d Dept.1986). As Husband failed to pay the mortgage relating to * Harbor Court, and failed to comply with the sale of the home while it still arguably had equity, his failure to act resulted in the wasteful dissipation of the equity that existed in this property. See Maggiore v. Maggiore, 91 A.D.3d 1096, 937 N.Y.S.2d 366 (3rd Dept.2012) ; See also, Noble v. Noble, 78 A.D.3d 1386, 911 N.Y.S.2d 252 (3rd Dept.2010).
There has been a failure of proof by either party to show any increase in the equity of * Harbor Court between the time when the property was first purchased and when the foreclosure action was commenced, as there was no evidence of mortgage payments made during that time which might have accounted for an increase in the equity in that property. Therefore, for the purposes of equitable distribution, * Harbor Court is hereby deemed to be a dissipated marital asset worth $100,000. This amount represents the parties initial cash investment in the property.
As Husband's failure to pay the mortgage, and maintain the status quo, resulted in the foreclosure of the property, the parties did not realize a return on their investment. When the house was foreclosed upon, the loss of the parties initial investment amounts to marital waste on the Part of Husband in the amount of $50,000 representing Wife's one half share of the $100,000 investment. To the extent that Husband claims that separate property was used to finance this $100,000 down payment, his testimony was not credible. Moreover, Husband has been precluded from offering evidence to the contrary of Wife's claim that the $100,000 down payment was marital in nature. Accordingly, with respect to * Harbour Court, Husband is hereby Ordered to pay Wife a distributive award of $50,000 within 120 days of the signing of the Judgment of Divorce.
d. Husband's Yacht.
In 1999 Husband purchased a 53 foot “Carver” yacht, which he named “Double J”. This boat was obtained at an initial purchase price of $650,000. The boat had three bedrooms, a dedicated captain, and staff who cleaned up after the parties completed their use of the vessel. On September 5, 2006 Justice Rachel Adams issued an appraisal Order directing Mr. Gilbert Cigal to appraise the boat. The cost of this appraisal was assessed 100% to Husband. There is no indication in the record that Husband complied with this appraisal Order. Neither party offered a boat appraisal as evidence during this trial.
As with many of the now dissipated assets in this proceeding, the evidence offered at trial regarding this boat is sparse. Husband testified that this yacht was docked and maintained at Slip 28 of the Port Regal Marina in Staten Island, New York. Husband testified that at the time the boat was purchased he financed the sum of approximately $500,000 towards the purchase price with a monthly payment due of approximately $5,000. Husband further testified that he paid an additional sum of approximately $150,000 towards the purchase of the boat with money withdrawn from a marital checking account. On October 7, 2006 this Court, with Justice Rachel Adam's presiding, found that a $363,000 lien existed on the boat as of that date. By Order dated December 12, 2006, the parties agreed to sell the “marital boat immediately” with all proceeds to be held in Wife's counsel's escrow account.
It is undisputed this vessel was never sold as ordered. Wife credibly testified that immediately following the commencement of this divorce action, Husband stopped paying the loan on this vessel. Husband testified that the boat was “repossessed” in 2006 or 2007 but offered no proof to substantiate exactly what happened to this valuable asset during the course of this litigation including the substantial amount of equity the Court found existed in it as of the date of the Pendente Lite Order.
As Husband was indisputably the only income producing spouse in this action, his failure to pay the loan, or to facilitate the sale of the boat as he was Ordered to do, resulted in the wasteful dissipation of yet another of the parties' assets. Husband's inaction in allowing the boat to be repossessed is in violation of this Court's Order dated July 18, 2006 which prohibited Husband from “selling, transferring, or dissipating any marital assets.” Accordingly, Husbands' inaction amounts to marital waste. See Iwanow v. Iwanow, 39 A.D.3d 471, 834 N.Y.S.2d 247 (2d Dept.2007) ; Southwick v. Southwick, 202 A.D.2d 996, 612 N.Y.S.2d 704 (4th Dept.1994).
There was no evidence in the record as to the amount of depreciation sustained by this asset prior to its repossession. Defendant Husband, however, has introduced his “Net Worth Worksheet”, which was received into evidence as Defendant's A, in which he claims that the boat constituted a loss in the amount of $146,148. Defendant's representation as to the loss sustained is a likely reflection of the minimum value of the boat at or around the time it was repossessed. Therefore, the sum of one half of this value or $73,074 is hereby attributed to Husband as marital waste representing Wife's one half equitable share of that asset. See Sotnik v. Zavilyansky, 101 A.D.3d 1102, 956 N.Y.S.2d 514 (2d Dept.2012) ; Accordingly, with respect to the vessel “Double J”, Husband is hereby Ordered to pay Wife a distributive award of $73,074 within 120 days of the signing of the Judgment of Divorce.
e. Valuable Personal Property.
By Order dated December 12, 2007, the parties agreed that their attorneys would go the marital home and the “new and current home” of Husband to “obtain for sale by Sotheby's” various articles of personal property including a water color painting, engagement ring, estate rings, Husband's collection of Rolex and Piaget watches among other jewelry, and other art work and vehicles. The proceeds were to be divided equally between the parties. At trial no evidence was submitted as to whether this Order was ever followed or what happened to any of these items. On his Statement of Net Worth Worksheet dated July 10, 2012, Husband indicated he still has a watch worth $12,000 and a piano worth $10,000 (Def.Ex.A). Wife testified that she is unsure as to what happened to any of these items, though she admitted to selling one painting for $4,000 early in the divorce proceeding. (Tr. 6/10/13, p. 20). Husband claims that many of these assets still remain in the marital residence. Wife claims that Husband took them and they have “gone missing”.
In light of the parties' complete failure to satisfy their respective burdens of proof regarding the existence or value of claimed personalty, this Court is unable to direct any specific distribution of the items claimed by Wife or fashion a monetary distributive award representing their value. See Grendel v. Grendel, 128 A.D.2d 834 (2d Dept.1987), leave dismissed 70 N.Y.2d 693 (1987) ; see also, Alper v. Alper, 77 A.D.3d 694, 909 N.Y.S.2d 131 (2d Dept.2010) ; Michalek v. Michalek, 114 A.D.2d 655, 494 N.Y.S.2d 487 (3rd Dept.1985). To the extent that these specified items of personalty still exist, the parties are hereby Ordered to comply with this Court's prior Order dated December 12, 2007 which directed their sale at Sotheby's auction house. It is hereby Ordered that this sale shall include the watch claimed by Husband worth $12,000 and the piano worth $10,000 as those items were apparently not included in the prior Order. All of the other items not specified in this Order shall be deemed the property of the person to whom they are titled, or who currently possesses them, free and clear of any claims against them. The proceeds of the Sotheby's auction shall be distributed equally between the parties, however, Husband shall be entitled to a $2,000 credit representing his one half share of the $4,000 painting admittedly sold by Wife. Sotheby's shall be entitled to their customary fees and commissions.
f. Banks Accounts/Brokerage Accounts/Investment Accounts.
Wife credibly testified that although Husband had his Series 7 license revoked for fraud after a federal criminal prosecution, he continued trading and investing using other people's licenses. Wife further testified that it is her belief that Husband has a number of investment accounts in other people's names to secret them from this Court. Wife argued that her inability to identify the nature and value of these accounts was caused by Defendant's failure to comply with numerous discovery demands and Orders which culminated in his preclusion. Indeed, when Husband refused to submit to a deposition on his finances, the then presiding Justice Ordered the examination to occur in front of a Judicial Hearing Office (Aiello, J.) who recommended a contempt finding against Husband. Throughout the course of this trial Wife has maintained that Husband has secreted all of his assets to hide them from the Court.
During the course of her direct case, Wife called Husband as a witness and examined him on the issue of his investment accounts. Wife also introduced various documents into evidence showing Husband's account statements in the years 2000 through 2007. According to Husband's S.I.P.C. (Securities Investor Protection Corporation) account statement from the year 2000 he maintained a marital investment account with a balance of $1,011,541. (Pl.Ex.14). Husband's 2006 Statement of Net Worth, the only piece of financial discovery exchanged by Husband, makes no mention of this investment account. When questioned as to where these monies went, Husband indicated that he could not recall, but that he made a movie around that same time. (Tr. 10/25/12, p. 39). In furtherance of her claims Wife offered into evidence a similar S.I.P.C account statement from December of 2005, contemporaneous with the commencement of this action, which indicates a balance of $134,254 . (Pl.Ex.27). The Court notes that the last statement submitted as evidence, from September of 2007 indicates a negative balance ($-.30 ). As the valuation date of a marital asset is generally the date the action was commenced, and it appears that this valuable asset no longer exists, Wife is hereby awarded a distributive award in the amount of $67,127 representing her one half share of this account as it existed at the time of commencement. See Michaelessi v. Michaelessi, 59 A.D.3d 688, 874 N.Y.S.2d 207 (2d Dept.2009) ; See also, Sieger v. Sieger, 51 A.D.3d 1004, 859 N.Y.S.2d 240 (2d Dept.2008).
In addition to the S.I.P.C account statement from 2005, Wife introduced into evidence a second “tax shelter” bank account statement from Citibank dated November 30, 2005. (Pl.Ex.14). This statement shows that prior to November 1, 2005 the account at issue had a balance of $67,599 but as of November 30, 2005 the account balance had decreased to $0. When questioned as to where these monies went, Husband indicated that he “liquidated it”. (Tr. 10/25/12, p. 31). As Husband admittedly liquidated a marital account, without Wife's consent, just prior to the commencement of this action in December of 2005, he is hereby Ordered to pay Wife a distributive award in the amount of $33,800 representing her one half share in this now dissipated marital account. See DeGroat v. DeGroat, 84 A.D.3d 1012, 924 N.Y.S.2d 425 (2d Dept.2011) ; See also, Ferraro v. Ferraro, 257 A.D.2d 596, 684 N.Y.S.2d 274 (2d Dept.1999).
Other than the two account statements submitted by Wife, the only other evidence of marital bank or investment accounts comes from the only piece of financial discovery exchanged by Husband during the course of the pre-trial phase of this action, a Statement of Net Worth dated March 15, 2006. (Pl.Ex.35). In his Statement of Net Worth, which was entered into shortly after the commencement of this action, Husband identifies a “Southwest Securities” investment account with a balance of $32,000, a “Guardian” life insurance policy with a cash surrender value of $6,900, and a Citibank trust in the amount of $12,500. At trial there was no testimony as to what ultimately happened to these assets, but Husband's updated “Net Worth Statement Worksheet” does not indicate their existence as of July 2012. Accordingly, Husband is hereby Ordered to pay a distributive award in the combined amount of $25,700 representing Wife's one half share of these accounts as they existed at or around the time of commencement. See Michaelessi v. Michalessi, 59 A.D.3d 688, 874 N.Y.S.2d 207 (2d Dept.2009) ; See also, Ruane v. Ruane, 55 A.D.3d 586, 865 N.Y.S.2d 632 (2d Dept.2008) ; D'Angelo v. D'Angelo, 14 A.D.3d 476, 788 N.Y.S.2d 154 (2d Dept.2005).
All of the distributive awards Ordered under this section are to be paid within 120 days of the signing of the Judgment of Divorce.
g. Fraunces Tavern.
Wife claims that during the course of their marriage, Husband purchased an ownership interest in a famous Manhattan landmark restaurant, Fraunces Tavern, through an entity known as 54 Pearl Street Associates. Wife testified that Husband owned this restaurant with four partners. (Tr. 6/04/13, p. 56). Husband admits that at one time he had a deal to invest $500,000 in the restaurant, however he claims that he could not raise sufficient funds to cover that amount. Ultimately Husband claims he invested the sum of $180,000 but pulled the money out in 2005 or 2006. (Tr. 10/25/12 p. 13–15). Husband could not recall if he withdrew his investment before or after the commencement of this action in December of 2005.
By Order dated March 2, 2010 BST Valuation and Litigation Advisors was appointed to conduct an evaluation of the marital assets, including the marital interest, if any, that existed in Fraunces Tavern at the commencement of this action. By report dated November 12, 2010 BST found that “Mr.[R.G.] did not hold an ownership interest in 54 Pearl Street Associates, Fraunces Tavern at the date of commencement of this action,” and therefore found the further valuation was not required. As this action was commenced in December of 2005 Husband could not have withdrawn his interest in 2006 as he suggested.
While the parties did not hold a marital interest in Fraunces Tavern at the commencement of the action, this does not end the analysis. When questioned as to what he did with the monies obtained from the return on his investment Husband testified that he “used it for the marriage and did a lot of liquidating”. (Tr. 10/25/12 p. 15). The Court does not credit this vague statement, especially when considering the timing of the withdrawal shortly before the commencement of this action. Husband's testimony, and the BST report, indicate that he withdrew the investment in 2005 (the year this action was commenced), and Wife credibly testified did not receive any of the returns on the investment. Moreover, the money from the investment was not included in Husband's Statement of Net Worth which was filed in early 2006. Accordingly, the money withdrawn from the marital investment in Fraunces Tavern, which was exclusively in Husband's control, went missing along with many of the other assets to this marriage. As Husband admits that he liquidated this marital investment but could not show where the money went, Wife is hereby awarded a distributive award of $90,000 representing her one half share of the investment. The Court finds that, like many of the parties' other assets, Husband wrongfully liquidated the parties' investment in Fraunces Tavern and secreted the funds received. See Xikis v. Xikis, 43 AD3d 1040 (2d Dept.2007) ; See also, Housset v. Housset, 200 A.D.2d 508, 606 N.Y.S.2d 680 (1st Dept.1994). Husband's inability to “testify with specificity as to how” he spent the $180,000 “suggests that [he] dissipated these marital assets in contemplation of divorce.” Abrams v. Abrams. 57 A.D.3d 809, 870 N.Y.S.2d 401 (2d Dept.2008). With respect to Fraunces Tavern, Husband is hereby Ordered to pay a distributive award in the amount of $90,000 directly to Wife within 120 days of the signing of the Judgment of Divorce.
h. Movies and Other Creative Endeavors.
During the course of this marriage Husband produced and acted in a movie entitled “License to Steal” which was later released under the title “Kings of Brooklyn” (hereinafter “The Movie”). This movie has been a constant point of contention between the parties. Like all of the other assets once held by the parties the exact circumstances surrounding the movie are a mystery. It is unclear exactly how much money was invested in the film, but Husband estimates that he invested approximately $1.2 million dollars. (Tr. 10/25/12 p. 17). Husband has alleged that the movie was the subject of at least one alleged distribution deal in 2006 and another in March 2012 (See Affidavit of R.G., April 25, 2012; Mot. Seq. 20). Husband formed “Jana Films, LLC”, a production company, to produce and distribute “The Kings of Brooklyn”. It is undisputed that the movie was shown at least once at a film festival in Brooklyn, but that it was never widely distributed. For the majority of this divorce proceeding the physical movie, which Husband claims is the only copy, has been in the possession of Wife, however on June 10, 2013 the physical movie was surrendered to Court. Husband claims that this movie has been wrongfully kept from him by Wife and he now seeks 100% of any proceeds when he sells the film plus a $1.8 million dollar distributive award representing the sums he would have allegedly received had Wife not thwarted the distribution of the film. Wife seeks her marital share of the film, which she calculates at 50%, in the event that it is every sold or distributed.
In addition to “Kings of Brooklyn”, Husband also invested at least $50,000 in other movie projects and scripts, but the parties never saw a return on those investments. Husband represented to BST, the court appointed business appraiser, that that none of these works resulted in any net profits and that Jana Films has been dissolved.
As Husband has failed to establish the reasonable value of any of these works, and moreover, that any willful act or omission on the part of Wife caused this asset to dissipate, his claim for a distributive award of $1.8 Million dollars is hereby denied. See Graves v. Graves, 307 A.D.2d 1022, 763 N.Y.S.2d 774 (2d Dept.2003) ; See also, Corbett v. Corbett, 6 A.D.3d 766, 775 N.Y.S.2d 89 (3rd Dept.2004). While Husband vehemently argues that Wife blocked his access to at least two distribution deals, Husband failed to substantiate by documentary evidence or witness testimony that any of the deals” in fact existed. Moreover, his testimony on this subject of possible distribution deals was not credible and he remains precluded from offering evidence relating to financial matters with those matters to be resolved in Wife's favor.
Accordingly, Husband is hereby Ordered to retrieve the physical copy of the film within 30 days of the date of this decision from the Court. Husband thereafter shall be afforded exclusive use and possession of the film for the purposes of seeking to sell or distribute it. Husband shall be the party with sole decision making authority regarding the sale of the movie. In the event that the film is subsequently sold, the proceeds shall be divided between the parties with 70% of the proceeds going to Husband and 30% going to Wife. While the money invested in the film was marital in nature, Husband also actively contributed to the marketing and production of the movie together with playing an acting role. Husband's non monetary contributions to the movie added value above the value of the invested marital funds. See McCaffrey v. McCaffrey, 107 A.D.3d 1106, 967 N.Y.S.2d 162 (3rd Dept.2013). Equitable distribution is not always equal distribution and in this instance the equities favor Husband receiving a larger share of the asset. See Augustin v. Bullen, 112 A.D.3d 658, 976 N.Y.S.2d 553 (2d Dept.2013).
In seeking to sell or distribute the film Husband is hereby Ordered to advise Wife, within ten days of occurrence, of any and all negotiations, “distribution deals”, draft contracts, licensing, options or any other business transaction or negotiation involving the movie. After compliance with this duty to notify, Husband shall have final decision making authority with regards to the movie.
i. Pennsylvania Property
Husband claimed that marital funds were invested by Wife in two vacant pieces of property located in Pennsylvania. Wife claimed these properties were inherited by her. Beyond this basic information, neither party provided information to the Court sufficient to allow for a thoughtful assessment of these properties as potential marital assets. Accordingly, as there was a full failure of proof by both parties regarding the details of these purported parcels, including block/lots, dates and details regarding their acquisition, and any documentation regarding any alleged investment of marital funds, proof of ownership, title, or value, the Court is unable to address the distribution of these properties. See Fu Kuo Hsu v. Hsuan Huang, 149 A.D.2d 405, 542 N.Y.S.2d 972 (2d Dept.1989) ; See also, Reiner v. Reiner, 100 A.D.2d 872, 474 N.Y.S.2d 538 (2d Dept.1984) ; Antoian v. Antoian, 215 A.D.2d 421, 626 N.Y.S.2d 535 (2d Dept.1995). In the event that these properties still exist they shall hereafter be owned as titled. In the event that the properties are titled in both parties names they shall be owned as tenants in common. See V.R.W., Inc. v. Klein, 68 N.Y.2d 560, 510 N.Y.S.2d 848, 503 N.E.2d 496 (1986).
j. Pension/Retirement Accounts
While Wife testified that she believes Husband had a pension which he liquidated during these proceedings, she has otherwise failed to provide admissible evidence sufficient to prove the existence of any such pension. (Tr. 6/ 10/13, p. 25). No pension was ever properly identified or appraised during the course of the discovery phase of this proceeding which continued for several years before several judges and hearing officers. While Husband has been precluded for his failure to provide discovery, this does not eliminate Wife's burden of proof to show the existence of the pension as a marital asset. As Wife failed to put even a basic framework of the value of the pension, where it was obtained from, or the portion that was marital in nature, it cannot be distributed. See Seckler–Roode v. Roode, 36 A.D.3d 889, 830 N.Y.S.2d 211 (2d Dept.2007) ; See also, Michalek v. Michalek, 114 A.D.2d 655, 494 N.Y.S.2d 487 (3rd Dept.1985).
Wife admits she has retirement benefits from her employment with Time Warner. While Wife claims that this benefit is a “pension,” a review of the record reveals that it appears to be an employer match 401k. When asked whether this benefit was acquired before or during the marriage Wife indicated that it was acquired both before and during the marriage though she did not indicate, nor was she asked, how much she contributed and when. Wife credibly testified that this account is currently worth approximately $28,000. (Tr. 6/10/13, p. 23). The burden of proving the value of retirement benefits rests on the party seeking an equitable share of that benefit. See Biagiotti v. Biagotti, 97 A.D.3d 941, 948 N.Y.S.2d 445 (3rd Dept.2012). While Wife admitted the existence of retirement benefits in response to direct questions from her attorney, Husband failed to elicit testimony or submit evidence sufficient to establish the marital portion of this benefit. Without knowing how much Wife contributed to her 401k during the marriage the Court cannot determine the percentage of that account Husband would be entitled to. See Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699, 463 N.E.2d 15 (1984). Accordingly, Husband failed in his burden of proof, and this asset will not be distributed. See Shapiro v. Shapiro, 151 A.D.2d 559, 542 N.Y.S.2d 339 (2d Dept.1989) ; See also, Iwahara v. Iwahara, 226 A.D.2d 346, 640 N.Y.S.2d 217 (2d Dept.1996). The Court further notes that at no time during this trial, or in his post trial summation, does Husband clearly state that he is seeking a portion of Wife's 401k. See LeVigne v. LeVigne, 220 A.D.2d 561, 632 N.Y.S.2d 610 (2d Dept.1995).
Maintenance
In both her first and second Verified Complaints, dated March 16, 2006 and May 9, 2007 respectively, Wife seeks an award of spousal maintenance. Even as early as the Pendente Lite Order issued in this case, Judge Adams (then presiding) found that the likelihood of Plaintiff Wife becoming “gainfully employed in the near future is remote” (See Order dated 10/4/06). Based on that initial assessment, and for the additional reasons set forth in that Order, Wife was awarded $4,000 per month in pendente lite maintenance.
In her written summation after trial Wife requests an award of non-durational maintenance in the amount of $10,000 a month. Wife also seeks the payment of alleged arrears in relation to the temporary maintenance award in the amount of $166,100. Husband opposes any award of final maintenance, and claims that he has paid his temporary maintenance obligation in full.
While this decision is being issued in 2015, this action was commenced well before the 2010 revisions regarding awards of maintenance. In determining whether to award spousal maintenance under DRL § 236(B), the Court must consider the statutory factors in existence when this case was commenced. After consideration of these factors, the factors deemed most relevant to the present matter are (1) the duration of the marriage; (2) the present and future earning capacities of both parties; (3) the age and health of the parties; (4) the ability of the party seeking maintenance to become self supporting; (5) the wasteful dissipation of marital assets; and (6) the standard of living established by the parties. See DRL 236(B)(6) ; Kaprelian v. Kaprelian, 236 A.D.2d 369, 653 N.Y.S.2d 634 (2d Dept .1997) ; Loeb v. Loeb, 186 A.D.2d 174, 587 N.Y.S.2d 738 (2d Dept.1992).
“The overriding purpose of a maintenance award is to give the [receiving] spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting.” Sirgant v. Sirgant, 43 A.D.3d 1034, 842 N.Y.S.2d 483 (2d Dept.2007). However, in certain circumstances, where it can be established that the receiving spouse has little reasonable chance of becoming self supporting, an award of non-durational, or lifetime maintenance is appropriate. See Keane v. Keane, 25 A.D.3d 729, 809 N.Y.S.2d 133 (2d Dept.2006) ; See also, Wexler v. Wexler, 34 A.D.3d 458, 824 N.Y.S.2d 647 (2d Dept.2006). In determining whether a award of non durational maintenance is appropriate, courts consider the age and health of the movant, the duration of the marriage, the likelihood of the movant spouse being able to find gainful employment, the parties pre-divorce standard of living, their disparity in income and movant spouse's lack of future earning potential. See Summer v. Summer, 85 N.Y.2d 1014, 630 N.Y.S.2d 970, 654 N.E.2d 1218 (1995) ; Marino v. Marino, 52 A.D.3d 585, 860 N.Y.S.2d 170 (2d Dep't 2008).
The parties were married in March of 1990 and this action for divorce was commenced in December of 2005. Accordingly this marriage is one of 15 year duration. Wife is 54 years old and has approximately three years of college credits from Saint John's University. Wife has not been employed since 1997. In or around March of 2012, Wife had an acute illness involving her ear which has had lasting effects on her hearing. She also suffered a fracture to her leg which causes her lingering pain and a broken hip which required surgery. (Tr. 11/1/2013). Wife credibly testified that during the course of this prolonged litigation she was forced to borrow over $100,000 from her family to meet her expenses, especially prior to the Court's entry of the Pendente Lite Order.
It is undisputed that throughout the marriage Husband managed all the marital finances and supported what can best be described as an affluent lifestyle. The established standard of living during the course of the marriage has been afforded considerable weight in this Court's determination of a maintenance award. At trial, Wife testified at length as to the life that she has enjoyed. Wife credibly testified that Husband would frequently shower her with extravagant gifts including furs, jewelry, Cartier watches, artwork, clothes and whatever else she requested. Husband's income further supported a waterfront mansion, investment properties, various luxury and collector cars and a private yacht. The parties surrounded themselves with fine art work, fine watches including a Rolex deemed by Husband to be worth at least $28,000, rare exotic fish costing as much as $2,000 per fish, fine bottles of wine, and other items only accessible to the very wealthy. Wife further credibly testified that she did not have a budget, could spend freely without concern, and was never denied money when she requested it. (Tr. 6/10/13 p. 16–17); (Tr. 6/4/13 p. 47–48;62).
During the course of this protracted matrimonial proceeding Wife has struggled to maintain the lifestyle she is accustomed to, as her only source of income is the support paid by Husband. Without contribution from Husband, Wife would not be able to maintain a standard of living even remotely close to the standard of living she has enjoyed during the marriage. Indeed, even with the amount of maintenance awarded herein, Wife will be unable to maintain the luxurious lifestyle she once had. On the other hand, Husband still maintains an extravagant lifestyle for himself and the children as he still employs a cook, a housekeeper, a driver, a babysitter, tutors, and rents a 5000 square foot home for $4,500 per month.
In the Pendente Lite Order, Justice Adams assessed very little chance of Wife becoming self supporting, and the passage of time since that observation has only supported it. Wife has not found employment for the duration of this proceeding and has been living solely off the support from Husband together with monies borrowed from her family.
The Court finds that Wife presents with marked limitations making it virtually impossible for her to obtain and more importantly, retain, employment sufficient to support herself. These limitations were discussed by both of the forensic evaluators in this case. Dr. Favaro noted that while Plaintiff's home was organized, she otherwise “appeared disorganized and chaotic” which made her “for the most part unable to make and keep appointments.” (AFC Ex. 11, p. 9). He further found her behavior to be “extremely threat sensitive, to the point of making what appeared to be outrageous claims”. (AFC Ex. 11, p. 9). Dr. Herman made similar observations, noting Mother's tendency to go on unrelated incomprehensible tangents, her describing events surrounding this divorce as “complete mysteries” much “like a deer in headlights”, almost “childlike” reasoning regarding the events relevant to this divorce and in short, consistently “confused and mixed up.” While neither forensic evaluator diagnosed Wife with any mental illness, as Dr Herman indicated; “This style does not bespeak a psychiatric diagnosis but, rather, a style of relating to the world—especially when under stress.” (AFC Ex. 14, p. 8). Clearly, these characteristics would not be consistent with the skill sets required for sustained full or part time employment in today's economic market. Rather, as suggested by Dr. Herman, Wife appears to be in need of mental health services to address these manifestations and to create stability in her life.
In addition to the observations of the two forensic evaluators, with whom the Court agrees, the Court has had the opportunity to observe Wife on a myriad of occasions, and found that she presents with consistent pervasive limitations which severely hinder her ability to secure and retain future gainful employment. Wife has a chronic issue with lateness which manifested itself in various delayed court appearances. Wife further often appeared disorganized and unfocused. These traits, among those identified by the forensic evaluators, together with her age, her lengthy time spent away from the workforce, and her complete lack of familiarly with computers and the internet will likely prevent Wife from becoming a suitable candidate for employment even remotely sufficient to support the extravagant lifestyle that Husband has established for her. Moreover, Wife's stated career goals are unrealistic. When Wife was asked what her employment plans are for the future, she reluctantly responded that she, in essence, wanted to open up her own business where she would be an advertising “middle man”. (Tr. 12/3/13, p. 15–16). For the reasons set forth above, Wife's aspirations towards business ownership would appear very difficult to achieve.
The disparity of income between the parties in this action is a factor which has been afforded considerable weight by the Court. While Husband has been cagey regarding what he actually does for a living, there is no doubt that he earns a substantial sum of money doing it. For the reasons set for the above (see “Income”), and in light of the Preclusion Order, this Court has determined that Husband's income should be calculated at the imputed sum of $410,504 which represents his established earning capacity and reflects his expenses. See Hainsworth v. Hainsworth, 118 A.D.3d 747, 987 N.Y.S.2d 215 (2d Dept.2014). The Court notes that this imputed income is significantly less than what Wife believes that Husband is earning. Wife, on the other hand, is solely supported by the funds that have been awarded to her throughout the course of this proceeding. Wife is 100% dependent upon Husband for support.
After considering the statutory factors, with substantial weight afforded to the aforementioned factors, this Court finds that Wife has proven by a fair preponderance of the evidence that she is “incapable of becoming self supporting at a level roughly commensurate with the marital standard of living.” Summer v. Summer, 85 N.Y.2d 1014, 630 N.Y.S.2d 970, 654 N.E.2d 1218 (1995) ; See also, Bean v. Bean, 53 A.D.3d 718, 860 N.Y.S.2d 683 (3rd Dept.2008) ; Konigsberg v. Konigsberg, 3 A.D.3d 330, 770 N.Y.S.2d 322 (1st Dept.2004). Accordingly, this Court hereby awards Wife non-durational maintenance in the amount of $6,000 per month subject to the parameters indicated below. See Cohen v. Cohen, 120 A.D.3d 1060, 993 N.Y.S.2d 4 (1st Dept.2014) ; See also, Steinberg v. Steinberg, 59 A.D.3d 702, 874 N.Y.S.2d 230 (2d Dept.2009) ; Polizzano v. Polizzano, 2 A.D.3d 615, 768 N.Y.S.2d 374 (2d Dept.2003).
While Courts have considered the effect of an eventual award of social security to the party receiving maintenance and in some cases have tailored the maintenance award to be reduced upon the receipt of benefits, in this case, the record is devoid of any proof as to either parties eligibility for social security or as to the potential amount of benefits. See Rodriquez v. Rodriquez, 70 A.D.3d 799, 894 N.Y.S.2d 147 (2d Dept.2010) ; See also, DiPalma v. DiPalma, 112 A.D.3d 663, 977 N.Y.S.2d 276 (2d Dept.2013). However, as the Court is aware that both parties are approaching social security age, Wife's receipt of social security benefits shall be a change in circumstances such that either party may return to a Court of competent jurisdiction for the purpose of modifying the maintenance award herein. Moreover, the award of maintenance will terminate upon the death of either party, or Wife's remarriage. See Domestic Relations Law § 236[B][6][c] ; Gold v. Gold, 276 A.D.2d 587, 714 N.Y.S.2d 323 (2d Dept.2000). This award will be taxable to the recipient and tax deductible to the payor. See Lee v. Lee, 18 A.D.3d 508, 795 N.Y.S.2d 283 (2d Dept.2005). The first payment of the final award of maintenance shall be made within 20 days of the singing of the Judgment of Divorce and subsequent payments shall be made directly to Wife on the first day of each month thereafter. Until such time as the Judgment of Divorce is signed, the Order of temporary maintenance shall continue.
Child Support
At trial, Husband made clear that in the event that he were granted custody of the subject children he would not seek an award of child support from Wife. (Tr. 6/19/13 p. 38–39). Husbands repeated statements, under oath, that he is not seeking an award of child support from Wife constitute a knowing waiver of that right. Matter of Hinck v. Hinck, 113 A.D.3d 681, 979 N.Y.S.2d 116 (2d Dept.2014) ; See also, Matter of Tafuro v. Tafuro, 102 A.D.3d 877, 958 N.Y.S.2d 202 (2d Dept.2013) ; Stevens v. Stevens, 82 A.D.3d 873, 918 N.Y.S.2d 879 (2d Dept.2011). Moreover, during the course of this protracted litigation Husband has never made an application for child support. Accordingly, child support is not awarded at this time for the subject children of the marriage.
Retroactivity
Generally, an award of maintenance is retroactive to the date when the application was first made. Caviolo v. Caviolo, 155 A.D.2d 410, 547 N.Y.S.2d 83 (2d Dept.1989). Here Wife's first application for spousal support was made in her “first” Summons and Complaint which was filed on December 5, 2005. Accordingly, the spousal maintenance awarded herein is retroactive to that date. See Huffman v. Huffman, 84 A.D.3d 875, 923 N.Y.S.2d 583 (2d Dept.2011).
When calculating retroactive arrears Husband is entitled to a credit for maintenance payments made under the Pendente Lite Order of this Court. See Higgins v. Higgins, 50 A.D.3d 852, 857 N.Y.S.2d 171 (2d Dept.2008). Accordingly, Husband owes Wife the sum of $6,000 per month retroactive to December of 2005, with a credit due for each payment of $4,000 made under the Pendente Lite Order. While Husband is correct in arguing that he would be entitled to a credit for voluntary payments allegedly made during the course of these proceedings, he has shown no credible evidence at trial of specific voluntarily payments made. See Graham v. Graham, 277 A.D.2d 423, 717 N.Y.S.2d 232 (2d Dept.2000) ; See also, Baraby v. Baraby, 250 A.D.2d 201, 681 N.Y.S.2d 826 (3rd Dept.1998). Moreover, even if Husband had provided evidence of specific payments made, he would have also had to show that he had no legal obligation to make those payments, and somehow differentiate payments made in support to his Wife from payments made in support of his children, as no credit is awarded for voluntary child support payments. See McKay v. Groesbeck, 117 A.D.3d 810, 985 N.Y.S.2d 686 (2d Dept.2014) ; See also, LiGreci v. LiGreci, 87 A.D.3d 722, 929 N.Y.S.2d 253 (2d Dept.2011). Husband failed in his burden to show voluntary spousal support payments. Accordingly, his application for credit for voluntary payments is hereby denied. In fact, Wife credibility testified that he has not been fully compliant with the Pendente Lite Order, and that he owes maintenance arrears totaling $166,100 . (Tr. 6/12/13, p. 11); (5/17/13, p. 9).
Husband admitted in his trial testimony that under the strict terms of the Order he owes approximately $131,000 in arrears, subject to his argument regarding voluntary payments addressed above. (Tr. 5/17/13, pp 52–53). However, the Court finds Husband's testimony to be not credible, and moreover, not supported by the trial record.
Given the amount of Husband's support obligation, and the aggressive litigation between these parties on the subjects of finances and in particular, support, this Court is shocked by the poor accounting, record keeping and lack of documentation offered by Husband at trial. The Court notes that Husband testified at length as to his skill in negotiating debt and his history of shrewd financial transactions, but that he was unable to maintain even basic records of the amounts that the now claims he paid in support. At best, Husband has maintained partial bank records, self supporting charts, and random bank statements allegedly showing wire transfers of varying amounts from Husband's accounts to Wife's. Husband also testified as to thousands of dollars of alleged random cash payments with no accompanying credible receipts. Instead of making a single $4,000 payment a month, Husband testified that he would frequently make multiple payments in varying amounts at the alleged request of Wife. (Tr. 10/24/12 pp. 66–68).
Wife admitted at trial that Husband made certain payments under the Pendente Lite Order. Wife claims that Husband owes her maintenance arrears under that order totaling $166,100. Wife's counsel indicated that his inquiry of Husband at trial was limited to the alleged payments that he did not have proof of. (Tr. 1/4/13, p. 10) When cross examined on the issue of arrears, Husband begrudgingly admitted that he has no proof of payments made other than those admitted by Wife. (Tr. 1/4/13, pp. 5–7). While Husband frequently made reference to documentation which would support payments that he allegedly made, those documents are not in the trial record. Husband further made reference to alleged audio tapes of Wife accepting cash payments, but those recording were also not offered into evidence. (Tr. 1/4/13, p. 11). When asked if he had receipts for the various payments at issue, Husband repeatedly indicated that he had no receipts. (Tr. 1/4/13, pp. 10–16). Accordingly, Husband has failed in his burden of showing that he has paid the sums that Wife alleges he failed to pay.
As the party claiming arrears, Wife has the initial burden of showing non-payment of support. See McLoughlin v. McLoughlin, 74 A.D.3d 911, 903 N.Y.S.2d 467 (2d Dept.2010) ; See also, Miller v. Miller, 18 A.D.3d 629, 796 N.Y.S.2d 97 (2d Dept.2005). While Wife's testimony regarding arrears owed was far from comprehensive, it was credible. Moreover, Husband's failure to provide discovery, including receipts and other documentation relating to support, resulted in him being precluded. By the terms of the Preclusion Order, dated April 18, 2007, all financial issues are to be resolved in Wife's favor. Accordingly, after considering her credible testimony, together with the terms of the Preclusion Order, the Court finds that Wife met her burden of showing that Husband failed to pay the sum of $166,100 in spousal support arrears. See Matter of Marra v. Hernandez, 102 A.D.3d 699, 956 N.Y.S.2d 908 (2d Dept.2013) ; See also, Matter of Peterson v. Peterson, 75 A.D.3d 512, 904 N.Y.S.2d 500 (2d Dept.2010). Husband's testimony that he only owes $131,000 under the terms of the Order, but that he made voluntary payments which equal to more than that amount is not credible, and not supported by the record. (Tr. 5/17/13, p. 53).
As Wife is being awarded the sum of $6,000 a month, retroactive to the commencement of this action in December of 2005, that amounts to 99 months of payments running from commencement to the closing of the trial record in April of 2014. Ninety nine months at $6,000 a month totals $594,000 in total retroactive maintenance arrears. Husband is hereby credited for the undisputed maintenance sums he paid under the Pendente Lite Order. This Order was issued in October of 2006, but made retroactive to June of 2006. Under the Pendente Lite Order Husband was directed to pay the sum of $4,000 a month, plus $500 a month towards arrears. If Husband had been fully compliant with his temporary maintenance obligation he would have made 95 payments at $4,000 a month, between the months of June 2006 and April 2014. Ninety five payments at $4,000 a month totals $380,000. Wife testified that of this sum Husband currently owes $166,100 that he failed to pay, but she admits that he paid the rest. $380,000 minus $166,100 equates to an admitted temporary maintenance credit of $213,900. As the total sum of retroactive arrears under the final maintenance award herein is $594,000, and Husband is entitled to a credit of $213,900, he owes the balance of $380,100. Accordingly, Husband is hereby directed to pay the sum of $380,100 in maintenance arrears. This amount shall be paid in monthly sums of $2,000 in addition to Husband's maintenance payment each month until such time as the arrears are paid in full.
Life Insurance
It is generally appropriate to require a payor spouse to maintain a life insurance policy sufficient to secure his maintenance obligation. See DRL 236(B)(8)(a) ; See also, Alleva. v. Alleva, 112 A.D.3d 567, 977 N.Y.S.2d 267 (2d Dept.2013). At trial, Husband testified that in or around January of 2013, he established a $500,000 life insurance policy of which Wife is an alleged 66.6 percent beneficiary and each of the three children are 11.3 percent beneficiaries. (Tr. 6/04/13, pp. 27–28). The amount of life insurance currently carried by Husband is insufficient to secure his maintenance obligation to Wife. As no actuarial evidence was offered at trial, the Court takes judicial notice of the most recent official Center for Disease Control life expectancy table which found that the current life expectancy is approximately 79 years old. See Vincent v. Landi, 08527 (3rd Dept.2014); See also, Holbrook v. Jamesway Corp., 172 A.D.2d 910, 568 N.Y.S.2d 198 (3rd Dept.1991) ; Sanchez v. State of New York, 22 Misc.3d 1125(A) (N.Y. Ct. Claims 2008). As Wife is currently 54 years old, Husband's maintenance obligation will likely run for at least the next 25 years. Husband's prospective annual maintenance obligation amounts to $72,000 a year. $72,000 for the next 25 years amounts to $1,800,000. Husband is hereby Ordered to obtain, and maintain, life insurance of at least $1,800,000 with Wife named as the sole beneficiary for the duration of his maintenance obligation. See Hartog v. Hartog, 85 N.Y.2d 36, 623 N.Y.S.2d 537, 647 N.E.2d 749 (1995) ; See also, Baron v. Baron, 71 A.D.3d 807, 897 N.Y.S.2d 456 (2d Dept.2010). Each year that Husband is compliant with the payment of maintenance, he is hereby authorized to decrease the insurance policy to an amount sufficient to cover his remaining obligation.
Counsel and Expert Fees.
As indicated above, each party to this action has been represented throughout the course of this lengthy divorce by a number of attorneys, and various attorneys have been assigned to the subject children. A review of the official Court File indicates that a number of these attorneys have entered into Stipulations and Orders securing their outstanding fees from the sale of the marital residence and therefore shall be included as creditors relating to that sale. In addition, at least one attorney, Alison Aplin Esq., has filed an action to recover the fees owed to her. That action is currently pending before this Court. At trial, Wife only made a claim for Husband to pay for the counsel fees due to her current attorney, Mr. Victor Mevorah Esq. Moreover, as Wife has declined to call any of her prior attorneys as witnesses, Husband has not been afforded an opportunity to contest their fees in an adversarial context. See Stang v. Stang, 173 A.D.2d 812, 572 N.Y.S.2d 633 (2d Dept.1991). In addition, billing information from any prior attorneys has not been made part of the trial record. See Mimran v. Mimran, 83 A.D.3d 550, 922 N.Y.S.2d 27 (2d Dept.2011) ; See also, Darvas v. Darvas, 242 A.D.2d 554, 662 N.Y.S.2d 87 (2d Dept.1997). Accordingly, the only counsel fee request addressed herein is the request relating to Wife's current attorney, Victor Mevorah Esq., who has been counsel of record for Wife since December of 2010.
Wife seeks a final award of counsel fees in the amount of $110,000. In support of her application Wife testified at trial, as did her trial counsel, Victor Mevorah Esq. Both Wife and Mr. Mevorah credibly testified that Wife paid an initial retainer of $25,000 and that Mr. Mevorah bills at a rate of $400 an hour. Both Wife and Mr. Mevorah testified that Wife obtained this initial payment by borrowing it from family. Since the initial retainer Wife has borrowed additional funds to make three partial payments on her balance owed. In April of 2011 Wife paid the sum of $8,000, in September of 2011 Wife made a payment of $4,000 and in January of 2013 Wife made a payment of $3,000. The balance of Mr. Mevorah's bill remains outstanding in the sum of $64,490 as of the last day of trial. (Tr. 4/30/13 p. 87). Wife seeks an award of counsel fees in the amount of $110,000 representing the sums owed to her attorney together with a reimbursement of the retainer and partial payments. The sum of $110,000 also includes counsel fees accrued after the last day of trial in the preparation of post trial submissions.
At Husband's request, Mr. Mevorah was called to the stand as Wife's witness regarding the counsel fee application and Husband was given the opportunity to cross examine on the reasonableness and value of his purported fees. Finally, Wife offered detailed billing documentation regarding the fees paid to Mr. Mevorah together with all fees due and owing up until the close of the record. (See Pl.Ex. 41) Husband has not objected to the billing documentation submitted, other than his arguments regarding the reasonableness of the fees. (Tr. 4/30/13 p. 80). The Court has reviewed Mr. Mevorah's credentials and has determined that $400 an hour is reasonable for an attorney of his experience in a case as complex as this matter.
An award of counsel fees pursuant to Domestic Relations Law § 237(a) is a matter within the sound discretion of the trial court, and the issue “is controlled by the equities and circumstances of each particular case”. Morrissey v. Morrissey, 259 A.D.2d 472, 686 N.Y.S.2d 71 (2d Dept.1999) ; See also, Timpone v. Timpone, 28 A.D.3d 646, 813 N.Y.S.2d 752 (2d Dept.2006). In determining whether to award fees, the court should “review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions” See DeCabrera v. Cabrera–Rosete, 70 N.Y.2d 879, 524 N.Y.S.2d 176, 518 N.E.2d 1168 (1987) ; See also, Ciampa v. Ciampa, 47 A.D.3d 745, 850 N.Y.S.2d 190 (2d Dept.2008). A final award of counsel fees can only be granted after conducting a hearing where the opposing party is afforded a “meaningful way of testing the attorney's claims relative to time and value.” Patterson v. Patterson, 302 A.D.2d 507, 755 N.Y.S.2d 280 (2d Dept.2003) ; See also, Price v. Price, 113 A.D.2d 299, 496 N.Y.S.2d 455 (2d Dept.1985).
Wife argues that Husband is clearly the monied spouse in this action and moreover that his actions throughout this divorce proceeding, including his failure to provide discovery, have resulted in unnecessarily protracted litigation which has caused her both emotional and economic stress. Moreover, Wife claims that Husband has engaged in frivolous motion practice, has failed to comply with various Court Orders, and has intentionally delaying the proceedings.
In opposition to Wife's claim for counsel fees, Husband first argues that Wife's current counsel fee application is barred by a prior Order of the Court dated December 20, 2007. In the alternative, Husband argues that Wife should be required to pay her own counsel fees as she consistently delayed the proceeding.
On December 20, 2007 Justice Aliotta, who was then presiding over this matter, signed an Order regarding counsel fees in connection with an application to hold Husband in contempt. (Mot.Seq. No. 007). The language relied upon Husband is as follows: “In light of the stipulation between the parties on December 12, 2007 pertaining to the sale of marital personalty the Court hereby orders the Husband to pay the sum of $15,000 to the Wife's attorney as counsel fees within 60 days of the date of this Decision and Order. Thereafter, each party shall be responsible for their individual counsel fees” (emphasis added). Husband claims that the language of this Order controls Wife's present application for a final award of counsel fees and precludes the Court from issuing such an award. The December 12th stipulation referenced in the Order indicated that certain valuable objects would be sold by the parties at auction “immediately” with the proceeds to be distributed equally.
Assuming that this Order, entered seven years ago, was not intended to be an Interim Order, and would somehow be binding on this Court for the issue of a final award of counsel fees, Husband's argument regarding the December 20th Order is still unpersuasive for the following reasons. First, the Order at issue was made in contemplation of an anticipated sale of marital personalty which would have yielded Wife a significant sum of money from which she could have arguably contributed to her own counsel fees. It is undisputed that this personalty, including various pieces of artwork and jewelry, was never sold. Moreover, Justice Aliotta's Order directed Husband to pay the sum of $15,000 to Wife's attorney as counsel fees, however Husband admits that he never paid this sum. (Tr. 4/30/14, pp. 82–82). As the parties never complied with the Order directing the sale of personalty, and Husband failed to pay the $15,000 in counsel fees, the December 20th Order cannot be equitably interpreted in such a way as to bar all future counsel fee applications. When interpreting the December 20th Order, the operative word is “thereafter ” (i.e. “after that”) which creates a condition precedent. As Husband failed to comply with the pre-conditions indicated in the Order, he cannot now attempt to utilize it to prohibit Wife's subsequent application for counsel fees. See Hermann v. Hermann, 278 A.D.2d 200, 717 N.Y.S.2d 239 (2d Dept.2000) ; see also, Velkas v. Kaplan, 16 A.D.3d 580, 792 N.Y.S.2d 144 (2d Dept.2005) ; Kozinitsky v. Richman, 247 A.D.2d 366, 667 N.Y.S.2d 944 (2d Dept.1998). The Court notes that Husband, in attempting to interpret the Order in his favor, substituted the word “therefore ” for “thereafter ” which significantly changes the meaning of the paragraph. (Tr. 4/30/14 p. 82).
While the Court does not agree that Wife is prohibited from seeking counsel fees, the Court has also considered Husband's argument regarding Wife's conduct during the trial. A review of the trial record indicates that Wife was considerably late to a number of the trial appearances. Moreover, Wife often interrupted proceedings by raising her hand or talking aloud over the instructions of her attorney. In addition, Wife's initial failure to comply with the Court appointed forensic evaluator, Dr. Favaro, and her disruption of the mold remediation and repairs to the marital home caused significant delay. Finally, Husband correctly argues that Wife's own attorney has indicated that Wife is often uncooperative. (Tr. 4/30/13 p. 92).
After consideration of the totality of the circumstances, including the merits of the positions taken by both parties, and the financial circumstances of the parties, the Court hereby determines that an award of counsel fees to Wife is appropriate. See Kaplan v. Kaplan, 51 A.D.3d 635, 857 N.Y.S.2d 677 (2d Dept.2008). In making this determination the Court notes that Husband is in a vastly superior financial situation than Wife. While Husband is self represented, the Court finds that he has made this choice voluntarily, and not because of an alleged inability to compensate counsel. Moreover, Husband admittedly has had the assistance of advisory counsel outside of court. For the reasons set forth above, Wife is hereby awarded counsel fees in the amount of $90,000. See Prichep v. Prichep, 52 A.D.3d 61, 858 N.Y.S.2d 667 (2d Dept.2008) ; See also, O'Halloran v. O'Halloran, 58 A.D.3d 704, 873 N.Y.S.2d 87 (2d Dept.2009) ; Scheck v. Scheck, 49 A.D.3d 625, 856 N.Y.S.2d 127 (2d Dept.2008). While the Court finds that the $110,000 amount sought by Wife is reasonable under the circumstances, that amount is being reduced by $20,000 to represent the delays caused by Wife during the course of the trial. See Ciampa v. Ciampa, 47 A.D.3d 745, 850 N.Y.S.2d 190 (2d Dept.2008) ; See also Morrissey v. Morrissey, 259 A.D.2d 472, 686 N.Y.S.2d 71 (2d Dept.1999). While the Court credits Husband's testimony regarding delays caused by Wife, the Court notes that Husband has also caused delays throughout this proceeding and often appeared in court unprepared and disorganized.
Husband is hereby Ordered to pay the sum of $65,000 directly to Mr. Mevorah within 120 days of the signing of the Judgment of Divorce. The balance of the counsel fee award which shall be paid directly to Wife as a reimbursement for fees paid will be addressed below (see “reallocation”).
In various motions filed by Husband throughout the course of these proceedings, he has sought attorneys fees, costs and sanctions against Wife for, among other things, seeking a Temporary Order of Protection, moving to preclude him, and for seeking the payment of arrears. After a review of the motion papers, together with the trial record, Husband's applications are hereby denied. Husband failed to show any legal or factual basis for an award of attorneys fees under DRL '237 or sanctions under 22 NYCRR '130.1.1. See Schiller v. Guthrie, 102 A.D.3d 852, 958 N.Y.S.2d 736 (2d Dept.2013). In regard to DRL '237 Husband is clearly in the stronger economic position, and has chosen to represent himself since January of 2011 while utilizing the assistance of a ghost writer and legal advisor. As for Husband's application for sanctions and costs, Husband and has not proven the “bad acts” and abuses of process” that he alleges. (See e.g., Mot Seq. 16). Moreover, Husband has failed to prove that any of the positions taken by Wife in this divorce were frivolous. See Stone Mtn. Holdings, LLC v. Spitzer, 119 A.D.3d 548, 990 N.Y.S.2d 39 (2d Dept.2014) ; See also, Matter of Lebron v. Lebron, 101 A.D.3d 1009, 956 N.Y.S.2d 125 (2d Dept.2012).
Reallocation of Expert Fees.
In addition to the reduction of Wife's counsel fee award due to delays caused by her actions, this Court further grants Husband's application for a reallocation of Dr. Favaro's forensic evaluation fee. While Husband's application for a change of custody necessitated the appointment of Dr. Favaro to conduct a second forensic evaluation, Wife's failure to comply with that evaluation in a timely fashion resulted in additional fees attributed to Husband. Accordingly, a portion of Dr. Favaro's fee, in the amount of $2,000 is hereby reallocated to Wife. As Wife lacks the financial resources to pay this sum to Husband, the amount of counsel fees awarded to Wife herein is hereby reduced by the sum of $2,000 resulting in a net award of $23,000. Husband's application for the reallocation of the other expert fees related to this proceeding is hereby denied. Husband is hereby Ordered to pay the sum of $23,000, directly to Wife as a reimbursement of the counsel fees she previously paid her attorney within 120 days of the signing of the Judgment of Divorce.
Motions
During the course of the this matrimonial action, a number of motions were referred to the Trial Court. The majority of the issues raised in those motions have been addressed by the Court's decision herein, withdrawn, or deemed moot by the passage of time. The remaining issues are hereby resolved as follows:
a. Defendant Husband filed Order to Show Cause Sequence No. 001 on or about February 15, 2006. Therein, Husband sought, among other relief, an Order of sole custody for J.G. and J.L.G. As Husband has been awarded sole physical and legal custody of these children, this application is granted. This Court has reviewed the balance of Husband's motion and has determined that to the extent the issues raised therein are not mooted, resolved by this decision or previously withdrawn, the relief sought therein is denied in its entirety.
b. Plaintiff Wife filed an Order to Show Cause (Sequence No. 013) on or about August 9, 2010. Therein, Wife seeks, among other relief, to hold Husband in contempt for his failure to comply with various court orders. The Court's finding with respect to Husband's compliance with court ordered maintenance and child support is discussed above. Suffice to say here, that while Wife has shown a failure on Husband's part to comply fully and consistently with the support awards, Wife failed to properly plead and prove that alternative remedies would be ineffectual. See Jones v. Jones, 65 A.D.3d 1016, 885 N.Y.S.2d 323 (2d Dept.2009) ; See also, El–Dehdan v. El–Dehdan, 114 A.D.3d 4, 978 N.Y.S.2d 239 (2d Dept.2013). As Wife did not show that she lacked less restrictive means of securing compliance, her application for contempt is hereby denied. Upon review of the remaining requests for relief sought in this motion, the Court finds that they have been addressed by this decision, mooted, or previously withdrawn. To the extent that the issues raised were not previously addressed, or addressed herein, they are hereby denied in their entirety.
c. Defendant Husband filed a Notice of Motion (Sequence No. 015) on or about October 25, 2010. Therein, Husband seeks various aspects of relief that have been resolved by this decision including a request for sale of the former marital premises. Husband's request for a $5,000 sanction against Wife for filing a motion seeking arrears is denied as Wife's motion was not frivolous. See Genco v. Genco, 997 N.Y.S.2d 919, 2015 N.Y. Slip Op 00332 (2d Dept.2015). Husband request for an Order vacating the Preclusion Order is denied. Husband's application for child support for Jo.G. has been withdrawn as Husband has indicated that he waives all claims of child support from Wife. Moreover, Jo.G. has now advanced in age beyond the child support jurisdiction of this Court. See Family Ct. Act '413 (1)(a). Upon review of the motion papers, together with the trial record, all of the remaining aspects of relief sought in this motion, have been addressed by this decision, withdrawn by Husband, or mooted by the passage of time. To the extent that any aspect of relief sought in this motion has not been addressed by the prior orders of this Court, or this present decision, those applications are hereby denied.
d. Defendant Husband filed a Notice of Motion (Motion Sequence No. 16) on or about October 5, 2010. Therein, Husband's seeks, among other relief, an Order vacating the temporary Order of Protection entered against him. After a hearing held in March of 2011 this Court dismissed Wife's Family Offense Petition (O–3672/08) and her subsequent application by Order to Show cause for a violation of the temporary Order of Protection. (Motion Sequence No. 14). The temporary Order of Protection previously issued was vacated. While the Court found after hearing that Wife did not reach her burden of proving a specified family offense, the Court does not find that her application for an Order of Protection was frivolous in nature. Accordingly, Husband's application for $2,500 as a sanction against Wife is hereby denied. See Matter of Miller v. Miller, 96 A.D.3d 943, 947 N.Y.S.2d 541 (2d Dept.2012).
e. Defendant Husband filed a Notice of Motion (Motion Sequence No. 19) on or about March 15, 2012, wherein he sought to dismiss Plaintiff's action for divorce in its entirety for trial delays on part of Plaintiff Wife. This motion is hereby denied. A review of the trial record clearly indicates that both parties contributed to the numerous delays in this divorce proceeding. Moreover, Husband does not provide a basis, in law or fact, for the dismissal this long pending divorce matter due to delays in the trial. Wife's conduct which resulted in delay has been addressed in relation to her counsel fee application.
f. Defendant Husband filed a Notice of Motion (Motion Sequence No. 20) on or about May 10, 2012, seeking an Order compelling Plaintiff Wife to surrender the movie, “Kings of Brooklyn” to Husband, among other relief. The movie was surrendered to this Court on or about June 10, 2013 and its distribution is determined herein. Accordingly, Husband's application for the return of the movie has been resolved. Moreover, Husband's claim for marital waste on the part of Wife in relation to the movie is denied as not proven at trial for the reasons set forth at length herein.
g. Defendant Husband filed a Notice of Motion (Motion Sequence No. 21) on or about May 16, 2012, seeking, among other relief, the appointment of a receiver to sell the marital home and vacant land and to hold Wife responsible for damages due to her alleged interference with a potential sale of the home. Husband's application requesting the immediate sale of the marital residence and vacant land, to the extent that it still exists, is resolved by the direction herein that the home and vacant lot be placed on the market for sale. Husband's application that he be appointed receiver for sale of these properties is hereby denied though he is granted authority to make decisions regarding those sales to the extent delineated herein. Husband's claim for damages regarding an alleged sale of the property allegedly thwarted by Wife is denied as Husband failed to meet his burden of proof at trial regarding existence of a bona fide offer together with proof that Wife frustrated or prevented the alleged sale. Moreover, the Court notes that Wife had no legal obligation to agree to sell the home, nor could the Court have Ordered the sale of the home, absent consent or emergency circumstances. See Brevilus v. Brevilus, 41 A.D.3d 630, 839 N.Y.S.2d 157 (2d Dept.2007) ; See also, Moran v. Moran, 77 A.D.3d 443, 908 N.Y.S.2d 661 (1st Dept.2010).
h. Defendant Husband filed a Notice of Motion (Motion Sequence No. 24) on or about July 27, 2012 seeking, among other relief, dismissal of this action based upon Wife's actions which resulted in delays to the proceeding, and for alleged fraud in connection with this litigation. After consideration of the moving papers, together with the trial record, Husband's application is denied. This motion, in many aspects, seeks relief identical to that sought by motion sequence number 19, and it is therefore denied for similar reasons. As previously stated, both parties have engaged in tactics which resulted, either intentionally or otherwise, in the delay of this action. Moreover, Husband does not provide a basis, in law or fact, for the dismissal of this long pending divorce matter. The Court notes that such a result would be grossly inequitable to both parties in the event that it were supportable by law. The Court further notes that Husband has failed to prove the Wife attempted to defraud the Court by fabricating excuses for her absences. The Court has reviewed the balance of Husband's motion together with the trial record, and after consideration of the requests for relief therein, Husband's application is denied in its entirety to the extent that it is not addressed by this Decision.
i. Defendant Husband filed a Notice of Motion (Motion Sequence No. 27) on or about April 16, 2014 seeking to vacate the interim Visitation Order awarded to Wife dated December 10, 2013. After a review of the moving papers together with the trial record, Husband's application is denied to the extent that it is not mooted by the parenting schedule as set forth herein.
Conclusion
For the reasons set forth above, a Judgment of Divorce is hereby granted to Plaintiff Wife on the grounds of constructive abandonment.
As to ancillary relief: Father is hereby granted sole custody of the two subject children, J.G. and J.L.G. Mother is hereby granted extensive parenting time with the children as set forth herein. Husband has waived any claim for child support for the subject children.
Wife is granted non durational maintenance in the amount of $6,000 a month retroactive to the commencement of this action. Husband's retroactive arrears shall be set at the sum of $380,100 after all credits and deductions as set forth herein. This sum shall be paid in monthly payments of $2,000 in addition to the non-durational maintenance award until such time as the arrears are paid in full. Husband's first payment of maintenance as awarded herein shall be made within 20 days of the signing of the Judgment of Divorce, until that time Husband is directed to continue paying interim support under the pendente lite Order. Husband's subsequent payments of support shall occur on the first of each month. Husband shall be required to obtain and maintain life insurance in the amount of $1,800,000 to insure Wife's maintenance award subject to the conditions set forth herein.
The Equitable Distribution of marital assets shall be effectuated as detailed herein. The former marital home located at * * * Boardwalk is to be sold as detailed herein with any proceeds, or debts related to the mortgage to be split evenly between the parties. The vacant lot located at Block * * * */ Lot* * is to be sold as detailed herein with the proceeds to be split evenly between the parties. The parties valuable personalty shall be sold by Sotheby's Auction House, with the proceeds to be split as indicated herein. Husband shall pay the various distributive awards delineated herein, totaling $339,701 within 120 days of the signing of the Judgment of Divorce. Husband is directed to retrieve the physical copy of the marital film (Kings of Brooklyn) within 30 days of the date of this decision, it shall be distributed as indicated herein.
Wife's application for a final award of counsel fees is granted as set forth herein. Husband is directed to pay the sum of $65,000 directly to Victor Mevorah Esq. within 120 days of the signing of the Judgment of Divorce. Husband is further directed to pay the sum of to pay the sum of $23,000, directly to Wife as a reimbursement of the counsel fees she previously paid within 120 days of the Judgment of Divorce.
All requests for relief raised at trial, or by motion referred to trial, not explicitly addressed herein are hereby denied. Wife's attorney is hereby directed to prepare and file a Judgment of Divorce, Findings of Fact and Conclusions of Law and all supporting documentation in accordance with this Decision within 60 days and deliver those documents directly to chambers.
This constitutes the Decision of the Court after trial.