Opinion
20936/2012
02-21-2017
D.C., Plaintiff, v. P.C., Defendant.
Attorney for Plaintiff: Sally S. Attia, Esq. 125-10 Queens Blvd., Ste 7 Kew Gardens, NY 11415 Defendant unrepresented:
Attorney for Plaintiff: Sally S. Attia, Esq. 125-10 Queens Blvd., Ste 7 Kew Gardens, NY 11415 Defendant unrepresented: Pam Jackman Brown, J.
BACKGROUND
The Plaintiff/wife (hereinafter "Plaintiff") residing at 209-53 111th Avenue, Queens Village, NY 11429, commenced this action on October 10, 2012, with the filing of a Summons with Notice and Verified Complaint, seeking an absolute divorce and ancillary relief. Defendant/husband (hereinafter "Defendant") residing at 209-53 111th Avenue, Queens Village, NY 11429, filed and interposed a Verified Answer with Counterclaims on February 25, 2013. The parties were married in a religious ceremony on April 8, 1978. Pursuant to the Preliminary Conference Order dated May 8, 2013, the parties resolved grounds pursuant to Domestic Relations Law (herein referred to as "DRL") §170.7 to Plaintiff. Maintenance, equitable distribution and attorney fees were unresolved. There is only one child born of the marriage: namely, S. T. C., age 38, is emancipated.
A trial was held on the unresolved issues.
FINDINGS OF FACT
GROUNDS
Plaintiff and Defendant were married in a religious ceremony on April 8, 1978. They agree that the marriage shall be dissolved pursuant to DRL §170.7 to Plaintiff. Plaintiff testified that the marriage was broken down irretrievably for a period of six months or more, prior to the commencement of this action. There are no other actions for the same relief. Plaintiff and Defendant are both over the age of 18 years and resided in the Court's jurisdiction for more than two years. There are no allegations of domestic violence. No one is in the military or dependent on anyone in the military. Plaintiff's maiden name is "JONES." Plaintiff shall be responsible for removing all barriers toward the Defendant's remarriage. EQUITABLE DISTRIBUTION
Plaintiff and Defendant failed to fully comply with discovery demands to produce pension and retirement statements and updated statements of net worth.
During the marriage, Plaintiff and Defendant resided together at 209-53 111th Avenue, Queens Village, NY 11429, which was purchased in 1994. Both worked during the marriage. Plaintiff maintained her separate bank account and paid some utilities on the marital residence. There was a joint bank account wherein only Defendant deposited his income to pay the mortgage and carrying charges on the marital residence. In addition, Defendant also maintained a separate bank account. There is evidence to show how the parties filed their taxes with Internal Revenue Service. Other than the marital residence, there was no other pooling of income for joint ventures during the marriage.
The property located at 209-53 111th Avenue, Queens Village, NY 11429, is herein referred to as "marital residence." Defendant agrees to the equitable distribution of the marital residence. Plaintiff has a pension plan and Defendant has a 401K account and a brokerage account.
Plaintiff seeks equitable distribution from the 401K and the brokerage account. Plaintiff takes the opposite position with her pension plan. Defendant agrees to share equally the marital share of his 401k account and asks for his equitable share of Plaintiff's pension plan. Defendant opposes any distribution from his Ameriprise Brokerage account to Plaintiff. Marital Residence
The marital residence shall be sold. All the proceeds of the sale less all closing costs and fees shall be shared equally. The marital residence shall be immediately placed on the market for sale with an agreed upon real estate broker at the current market value.
Right of Refusal to Purchase
Plaintiff shall have the first right of refusal at the current market value. If Plaintiff is unable to purchase within 90 days from the date of this Decision and Order, Defendant shall have the second right of refusal to purchase at the same market value. If Defendant is unable to purchase within 90 days after the time period for Plaintiff has expired, the marital residence shall be placed on the open market for sale to a bonafide buyer at the current market value that exists at the time of sale on the open market.
If the parties are unable to agree on a broker for the sale, an application shall be made to the Court to appoint a real estate broker to conduct the sale.
Responsibility for expenses on marital residence
Until the property is transferred as a buyout or sold, Plaintiff and Defendant shall be equally responsible for all the marital expenses and carrying charges (emphasis added). The marital expenses include the mortgage, real property taxes, real property insurance, all utility bills for land-line phones, gas, electrical and any other related expenses including repairs to the marital residence. Irrespective as to any outstanding bills, the debt for the marital residence shall be shared equally.
To the extent that both parties have contributed to any bills, repairs or maintenance on the marital residence, all expenses are deemed marital and the lifestyle during the marriage. To note, both parties are receiving their full one half equity of the enhanced value on the martial residence. Therefore, there is no reimbursement for any expenses on the marital residence.
Life Insurance Policy
Plaintiff testified that she did not contribute to the National Life Insurance Policy. Plaintiff did not make a request for any distribution from this policy. Defendant seeks reimbursement for payments made to this policy. This life insurance policy shall be one hundred percent (100%) awarded to Defendant for ownership, beneficiary and responsibility. Defendant's application for reimbursement is denied. Pension Plan and 401K Account
Plaintiff has a pension plan and Defendant has a 401K account. Both worked during the marriage and these accounts were opened during the marriage with direct contribution from their incomes. These accounts are deemed marital. Plaintiff has contributed minimally to her pension plan which has an approximate marital share of $21,848.67. Defendant's 401K account has an approximate marital share of $368,186.60. The pension plan and the 401K account shall be equally distributed, pursuant to Majauskas vs. Majauskas (61 NY2d 481) formula. The marital share shall be from the date of marriage to the date of commencement of this action. Plaintiff took a loan from her pension plan and Defendant took a loan from his 401K account. Any loan taken shall be recalculated into the pension plan and the 401K account to be equitably distributed for the respective marital shares.
Plaintiff shall submit the appropriate Orders for the martial share distribution from the pension plan and 401K account consistent with this Decision and Order and with the appropriate pre-approval letters. Ameriprise Brokerage Account
This account was opened in approximately 2004 with contribution from Defendant and no contribution from Plaintiff. It has an approximate value of $6,379.64. The credible evidence show that Plaintiff and Defendant went to consult with a financial planner in 2004 to set up this account for the benefit of additional retirement. However, Plaintiff refused to participate and submit her documents for the creation of this account. Nevertheless, Plaintiff argues that she should be entitled to her distributive share. The account was then opened only in Defendant's name
Plaintiff has the burden to show that marital funds were used to contribute to this account. (See Dugan vs. Dugan, 238 AD2d 741.) The evidence shows that Defendant was the person who paid the marital expenses from the joint account which was funded solely by Defendant's income.Plaintiff has not shown that the joint account was used to contribute to this account. Alternatively, Plaintiff argues that although she is entitled to Defendant's Ameriprise Brokerage account, Defendant is not entitled to her pension plan because Defendant was not acting as a husband at the time she started her contribution to the pension plan. Assuming this argument is valid, this logic should hold the same for Defendant's 401K account and particularly for this account.
There is no merit to Plaintiff's position in fact or law. Equal is not necessarily equal in the facts of this case given Plaintiff's modest financial and non-financial contribution to this marriage after the emancipation of the child. See, Arvantides vs Arvantides, 64 NY2d 1033; See also, Dugan vs Dugan, Id., 238 AD2d 741. Plaintiff has failed to prove her burden by any credible evidence that this brokerage account was opened and contributed to with marital funds. The evidence clearly showed that Plaintiff and Defendant maintained a separate bank account in addition to the joint bank account. However, there is no dispute that Defendant's contributions to the marital expenses came from the joint bank account which was funded solely with his income. There is no evidence that any of the separate accounts were pooled for joint ventures. More pointedly, Plaintiff's direct refusal to contribute to this account bears merit to Defendant's argument that Plaintiff has no equitable right to this brokerage account.
Given the financial circumstances that existed during this marriage, there was no pooling of finances for joint ventures that being this Ameriprise Brokerage account. Based on all of the above, Plaintiff's application for equitable distribution from the Ameriprise Brokerage account is denied.
MAINTENANCE
Plaintiff seeks maintenance in the sum of $1,927.85. Defendant opposes Plaintiff's application.
Plaintiff and Defendant were married April 8, 1978 and resided together until the commencement of this action on October 10, 2012. After commencement, they continue to reside together with the status quo. The evidence shows that Defendant is the monied spouse and maintained the marital home. The length of this marriage is approximately thirty-four years and six months at the time of commencement. Plaintiff's 2015 yearly income is $38,144.77. Defendant's yearly income is between $110,000.00 and $118,000.00 depending on his overtime. There is no updated statement of net worth with current tax returns in evidence.
The amount and duration of final maintenance are addressed to the sound discretion of the trial court, and are to be determined on a case-by-case basis see (Sirgant vs Sirgant, 43 AD3d 1034, 1035). "When evaluating whether a court providently exercised its discretion in awarding maintenance, the factors to be considered are whether the award encourages economic independence, the present and future earning capacity of the parties, the reduced or lost lifetime earning capacity of the party seeking maintenance, the duration of the marriage, whether the amount and duration of the award are appropriate in light of the pre-separation standard of living, the reasonable needs of the recipient spouse, the income and property of the parties, the distribution of the marital property, and the health of the parties" (Litvak vs Litvak, 63 AD3d 691, 692; see Domestic Relations Law § 236[B][6][a]; Hartog vs Hartog, 85 NY2d 36, 51—52). See also, Khan vs Ahmed, 98 AD3rd 471.
Plaintiff is 62 years old and in good health. Defendant is 61 years old and had a triple bypass surgery. Plaintiff testified that she in unable to maintain herself with her minimum income. Curiously, although Plaintiff is employed, she also has additional income from a business she runs from home. However, there is no tax return in evidence to establish the additional income. In spite of Defendant's triple bypass surgery, Defendant continues to work.
Albeit, this is a long term marriage with one child of the marriage, although emancipated. There is no dispute that Defendant maintained most of the expenses of the marital home although he knew of Plaintiff's earning capacity during the marriage. There is no testimony of a lavish lifestyle. This is a moderate middle class family. Plaintiff is receiving substantial equitable distribution from Defendants's 401K account and the proceeds from the marital residence. There were no lavish bank accounts during the marriage. The parties lived minimally from pay check to pay check.
Based on all of the above, the Court grants Plaintiff's application and awards maintenance in the sum of $1,000.00 per month as reasonable under all the circumstances in this marriage. This maintenance payment shall commence 20 days after the filing of the Judgment of Divorce with notice of entry. This payment shall continue on the 10th day of each month thereafter.
Termination
Plaintiff's maintenance payment shall terminate at the time Plaintiff begins to receive her marital share from Defendant's 401K account or her derivative share of Defendant's social security, whichever comes first (emphasis added).
The maintenance payment shall cease upon Plaintiff's remarriage or cohabitation with an unrelated partner.
Tax Consequence
The maintenance payment shall be taxable.
ATTORNEY FEES
Plaintiff seeks payment of her attorney fees. Defendant opposes Plaintiff's application.
DRL § 237 provides that in an action for a divorce the court may award counsel fees "to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and the respective parties." See, Prichep v Prichep, 52 AD3d 61 [2d Dept 2008]. Indigence is not a prerequisite to an award of counsel fees pursuant to DRL § 237. See, DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987].In considering an application for an award of counsel fees, the court shall consider the "equities and circumstances" of the case before it (Basile v Basile, 122 AD2d 759 [2d Dept 1986]).
Plaintiff testified that she is employed by the New York City Board of Education. As part of her employment, Plaintiff is a member of DC37 Union Legal Service and is eligible to receive legal representation from the Union. However, Plaintiff testified that she sought outside counsel because she understood that her spouse would pay her legal fees since he created the reason for her filing this action. Plaintiff has not shown that she was denied representation from her Union. Distressing is Plaintiff's attorney summation wherein she accused Attorneys who work for Union Legal Services as providing a time cap representation for clients. Plaintiff's Attorney assertion is an insult to the hard-working attorneys who work for Union employees. Plaintiff's attorney had cited no fact, law or statute to support this brazen discrediting accusation. In this basic garden variety matrimonial case, Plaintiff's Attorney bill is more than $31,848.67 as of the date of trial.
In a pendente lite order, Plaintiff's application for attorney fees was granted in the sum of $10,000.00 in the Order dated May 9, 2014. Since that Order, Defendant had to take out a loan to pay Plaintiff's attorneys' fee and his attorneys' fee. Given his limited financial circumstances, Defendant was unable to continue with his attorney and proceeded to trial unrepresented. Now, Plaintiff has incurred an additional $21,848.67 in attorney fees as of the date of trial.
There is no reasonable logic for incurring these astronomical attorney fees for this garden variety case. The only unresolved issue is Plaintiff's application for maintenance. Both parties are W2 wage earners. Plaintiff's attorney proceeded on a witch hunt for documents that Defendant was not disputing or seeking reimbursement, such as credit card statements, unnecessary subpoenas for bank statements and discovery demands. Assuming Plaintiff was entitled to attorney fees as the less monied spouse, the award of $10,000.00 was more than sufficient for this moderate middle class family with no significant legal issues.
Plaintiff had an ability to have legal representation through her employment Union but chose not to avail that benefit. DRL § 237 provides a remedy to level the playing field of a spouse that has no ability to obtain legal representation to defend themselves in a matrimonial action. It does not give an option to seek an attorney for the sole purpose to sanction a miscreant spouse as Plaintiff believes or was incorrectly advised.
Based on all of the above and circumstances in this case, the award of $10,000.00 is reallocated to Defendant which shall be deducted from Plaintiff's proceeds from the marital residence.Plaintiff's application for additional attorneys' fees is denied in its entirety. CUSTODY, VISITATION AND CHILD SUPPORT
This is not relevant since the child of the marriage is emancipated.
DRL §255
In the Preliminary Conference Order dated May 8, 2013, Plaintiff and Defendant acknowledge, on page No.8, that they are aware that they will be responsible for their individual health coverage upon the termination of the marriage by a judgment of divorce.
CONCLUSION OF LAW
FIRST: The residency requirement pursuant to DRL §230 has been satisfied.
SECOND: The requirements of DRL §255 have been satisfied.
THIRD: The requirement of DRL §236(B)(2)(b) have been satisfied.
FOURTH: Plaintiff is entitled to a judgment of divorce on the grounds of irretrievable breakdown pursuant to DRL §170.7, that the marriage was broken for a period of six months or more prior to the filing of this action. All ancillary reliefs are resolved as per this Decision and Order.
Plaintiff shall file Decision and Order with Notice of Entry on Defendant.
Plaintiff shall submit final papers within 60 days of Notice of Entry with Notice of Settlement on Defendant. So Ordered, Dated: February 21, 2017 Queens, New York Hon. Pam Jackman Brown, JSC