Opinion
26332/07.
Decided March 15, 2010.
In this matrimonial action the plaintiff seeks a judgment of divorce as well as child support for her daughter, equitable distribution and maintenance. The defendant has defaulted in this action and an inquest was held on February 18, 2010.
FINDINGS OF FACT
The parties were married in New York State on November 21, 1979, and the child of the marriage was born on July 7, 1980. At some point between the wedding and birth the defendant abandoned his family and moved to Nigeria.
By filing a summons with notice, plaintiff commenced this proceeding on July 18, 2007, and service was affected on defendant in Nigeria in the manner directed by Justice Prus of this court.
No answer has been interposed. An attorney did appear on defendant's behalf before Justice Prus at a preliminary conference, but that representation has since ceased and by decision and order dated May 12, 2009, Justice Sunshine of this court declared that the defendant was in default and that "[t]he defendant is the husband in conformity with the parties marriage on November 21, 1979."
CONCLUSIONS OF LAW
The plaintiff is granted a judgment of divorce against the defendant on the ground of abandonment (DRL § 170), on default.
Child Support
The issue of child support was decided in the order of Justice Sunshine of this court dated January 12, 2009. In that order it was held that plaintiff is not entitled to child support because of her failure to seek that relief prior to the child reaching the age of 21. This decision has been affirmed by the Appellate Division, Second Department and constitutes the law of the case ( Uzamere v Uzamere , 68 AD3d 855 ).
Maintenance and Equitable Distribution
The plaintiff seeks equitable distribution of property alleged to be owned by the defendant and has submitted several internet articles in support of her request.
In this case the parties have been physically, although not legally, separated for approximately thirty years and have had no contact in all of that time, with the exception of the defendant meeting with his daughter in 2004. Without a legal separation, statutorily, no cut-off date to equitable distribution and maintenance occurred until the filing of the summons by plaintiff on July 18, 2007, and defendant's property is not, then, separate property (DRL § 236 B [c]). The court cannot, however, under the circumstances of this case, grant either maintenance or a distributive award to the plaintiff.
At the inquest, plaintiff testified that her husband owned several companies and properties in Nigeria, and posited, without opposition, that he was a very wealthy man. That alone, without any reason for the thirty year delay in seeking money or property from him, is insufficient to warrant an award of the requested relief. In addition, since the parties have had no contact in decades, it is clear, that whatever wealth defendant enjoys, it did not result from the direct or indirect contributions of the plaintiff (DRL § 236 B [5][d][7]).
In this case, although neither party sought a divorce or legal separation until recently, the parties' partnership was brief. The seeds of the assets alleged to be owned by the defendant were planted in Nigeria, a great time and distance from the plaintiff and the parties' period of co-habitation. The entire relationship was short and after their separation they maintained no economic or social ties. Thus, the economic partnership of the parties ended three decades ago and to make any award of money or property to plaintiff in view of these facts would be inequitable. (DRL § 236 B [5][d][14]); DRL B[6]: Mark-Weiner v Mark , 1 AD3d 158 ; Francis v Francis, 289 AD2d 749).
For the reasons stated, the plaintiffs requests for child support, maintenance and a distributive award are denied.
Settle judgment with Findings of Fact and Conclusions of Law.
This is the decision and order of the court.