Opinion
17M0719
12-27-2018
Edmund J. GIZA, Plaintiff, v. Catherine A. BARNEY, Defendant.
Kirwan Law Firm, P. C., Syracuse (Terry J. Kirwin, Jr. of counsel), for plaintiff. Martin C. Collins, Syracuse, for defendant.
Kirwan Law Firm, P. C., Syracuse (Terry J. Kirwin, Jr. of counsel), for plaintiff.
Martin C. Collins, Syracuse, for defendant.
Martha Walsh Hood, J.
The Court has before it a matrimonial action commenced by plaintiff Edmund Giza against defendant Catherine Barney seeking a divorce based upon DRL 170 (7), an irretrievable breakdown of the marriage for six months or longer; and ancillary relief. The nature of the ancillary relief set forth in plaintiff's complaint is an award of maintenance, an award of counsel fees, and equitable distribution of the parties' marital assets.
In her answer and counterclaim defendant seeks a judgment of divorce in her favor based upon DRL 170 (7). She also seeks maintenance, counsel fees, a determination and award of separate property, a distributive award of marital property, and a division and assignment of marital debt. The matter was tried on June 14th and June 18th of 2018.
FINDINGS OF FACT
1. The parties were married on November 14, 2015 in the State of Arizona.
2. The defendant was a resident of the State of New York for a continuous period of one year immediately proceeding commencement of this action and the cause of action occurred in this state.
3. There are no children of the marriage.
4. The action was commenced on June 26, 2017.
5. The plaintiff husband is 72 years old. The defendant wife is 53 years old.
6. Neither party is in the military service of the United States.
7. No prior judgment or decree of divorce, separation or annulment has been granted with respect to this marriage by this Court or any other court of competent jurisdiction and there are no other actions for similar relief pending.
8. The complaint set forth appropriate notice relative to DRL 255 and the defendant withdrew her answer consenting to plaintiff's being awarded a divorce pursuant to DRL 170 (7) ; (6/14/18 transcript, pp. 41-42).
9. DRL 253 has been complied with.
10. The parties marriage has been irretrievably broken for a period of six months or more.
MAINTENANCE
Both parties sought maintenance in their respective initial pleadings. Post divorce maintenance is governed by DRL 236(B)(6). In matters where no child support is involved a statutory formula is set forth in DRL 236(B)(6)(c)(2) to calculate a presumptively correct amount of maintenance.
11, Plaintiff's testimony at trial was that his income for 2015 was approximately $140,000 - $150,000. His 2016 W2 reports compensation of $145,000 (exh PP). In 2017 it dropped to $60,000 - $65,000. His testimony was that his trucking business, in which he has two partners, was having some "tough times" and that he was "less active, coming and going pretty much as he pleased; therefore at his partner's behest he took a pay cut. In crediting plaintiff's testimony the Court notes that plaintiff is 72 years old and started his business 38 years ago (pp. 8-9, 6/14/18 transcript).
Defendant's (a hair stylist) 2016 income tax return indicates an income of $14,913; her 2017 tax return indicates and income of $17,387.
Applying the statutory adjustments to income the Court calculates based upon an income of $60,028 for plaintiff and $14,779 for defendant. This results in a presumptively correct maintenance amount of $15,052 yearly or $1,254 monthly payable from plaintiff to defendant.
The Court has considered denying an award of maintenance altogether as being unjust or inappropriate considering the DRL 236(B)(6)(e)(1) factors, the 72 year old age of plaintiff, and the wasteful dissipation of marital property. However the Court believes these circumstances can be better addressed in its consideration of equitable distribution.
The Court is also acutely aware of its pendente lite maintenance award of $4,065.20 monthly for a six month period from December 2017 to May 2018 based upon representations regarding the parties 2016 income for a nineteen month marriage. However, the Court is aware of the prescription of DRL 236 (b)(5-a)(n) that a temporary maintenance order shall not prejudice the rights of either party regarding a post-divorce maintenance award.
The duration of the Court's post-divorce maintenance award is guided by an advisory schedule set forth in DRL 236(b)(f) and awards maintenance of $1,254 per month for six months after entry of the Judgment of Divorce for this nineteen month marriage.
EQUITABLE DISTRIBUTION
Pursuant to Domestic Relations Law Section 236(B)(3), except where the parties have provided in an agreement for the disposition of their property pursuant to subdivision three of this part, the court, in an action wherein all or part of the relief granted is divorce, or the dissolution, annulment or declaration of the nullity of a marriage, and in proceedings to obtain a distribution of marital property following a foreign judgment of divorce, shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment. Separate property shall remain such. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.
Domestic Relations Law Section 236(B)(1)(c) defines marital property as:
"all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in an agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined." The term "separate property" in accordance with DRL Section 236(b)(1)(d) shall mean:
(1) property acquired before marriage or property acquired by bequest, devise, or descent, or from a party other than the spouse;
(2) compensation for personal injuries;
(3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;
(4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part.
In determining an equitable distribution of property the Court has considered:
1) The income and property of each party at the time of the marriage, and at the time the matrimonial action commenced;
2) The duration of the marriage and the age and health of both parties;
3) The need for a custodial parent to occupy or own the marital residence and to own or use its household effects;
4) The loss of inheritance and pension rights upon dissolution;
5) The loss of health insurance benefits upon the dissolution of the marriage;
6) Any award of maintenance;
7) Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures, contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party. The Court shall not consider as marital property subject to distribution the value of a spouse's enhanced earnings capacity arising from a license, degree, celebrity good will, or career enhancement. However, in arriving at an equitable distribution of marital property, the Court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earnings capacity of the other spouse;
8) The liquid or non-liquid character of all marital property;
9) The probable future financial circumstances of each party;
10) The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
11) The tax consequences to each party;
12) The wasteful dissipation of assets by either spouse;
13) Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
14) Any other factor which the Court shall expressly find to be just and proper.
Three pieces of real property referenced in this proceeding are or were separate property of defendant: Kirkville Road, East Syracuse, New York which defendant sold during the pendency of the divorce action; East Taft Road, East Syracuse, New York; and North Burdick Street, East Syracuse, New York.
Two pieces of real property are marital property: Cavalier Street, Palm Bay, Florida and Lueck Lane, Liverpool, New York.
The plaintiff was born in 1945 (age 72). The defendant was born in 1965 (age 53). The parties were married on November 14, 2015 and this divorce action was commenced on June 26, 2017; the duration of the marriage is nineteen (19) months.
Plaintiff testified at trial that he began a trucking business approximately 38 years ago in which he has partners, his testimony was that his 2016 tax year income from his business was $140,000 - $150,000; this was supported by a 2016 W2 and the parties' joint 2016 tax return (exh PP) indicating wages of $145,004. He further testified that his income from the business dropped to $60,000 - $65,000 in 2017, as described above, this was at the behest of his business partners as he was less active and the business was having tough times (pp. 8-9, 6/14/18 transcript).
In later testimony he indicated that he and his business partners had owned trucking companies and buildings for 25 or 30 years. He posited the existence of four business organizations; one with tow principals, two with three principals and one with four principals (p. 95, 6/14/18 transcript).
Plaintiff testified that prior to his marriage he had approximately $800,000 in his investment account and at commencement he had approximately $1,000,000 in said account. He attributed much of this increase to his consolidating $75,000 from his Trade Station account and $49,000 from his SEP (p. 9, 6/14/18 transcript). He had a checking account prior to the marriage but closed it and moved the funds to a joint account with defendant at Chase (p. 10, 6/14/18 transcript).
Prior to the parties' marriage plaintiff resided at Lake Grove, New York (Suffolk County, Long Island). He sold that residence in July 2016 as he had moved in with defendant upstate. The proceeds from the sale of Lake Grove were approximately $271,000 which were deposited into the parties' joint Chase account ending in 9327 (pp. 10-12, 6/14/18 transcript; exhibit 4) on August 1, 2016.
Plaintiff testified that he lived with defendant at her premarital residence located at Kirkville Road, Kirkville, New York, for 14 months, he then left the marriage. He asserts that while residing at Kirkville Road he contributed $15,000 for driveway improvements, $1,800 - $2,000 for improvements to cellar access, $2,100 for a John Deere lawn tractor, $1,800 - $2,000 for a pool cover, in addition to mortgage payments being paid out of a joint account (pp. 12-15, 6/14/18 transcript).
Plaintiff testified the parties' purchased Cavalier Street, Palm Bay, Florida; intending to use it as a vacation residence. According to plaintiff there was not enough money in the joint checking account to make the purchase, so he withdrew $200,000 from his UBS retirement investment account with the expectation that said sum would be replenished into the UBS account when his Lido Boulevard property was sold (pp. 15-16, 6/14/18 transcript).
Exhibit 6 indicates a TD Bank account ending in 4372 in plaintiff's name alone which was closed out on November 25, 2015; through withdrawals on October 23 and November 25 in the total amount of $385,927. $334,763 of this was withdrawn on November 25, ten days after the marriage, and according to plaintiff was used to bring money into the marriage, it was used as the initial funding of joint Chase account 9327, it was also used in part as some of the purchase money for the Palm Bay house (pp. 16-18, 6/14/18 transcript, Exh 6). Per a handwritten notation on Exhibit 6 the October 23,2015 withdrawal in the amount of $51,163 was used to purchase an Acura automobile.
Exhibit 7 indicates a UBS Resource Management Account in plaintiff's name, with a withdrawal on February 23, 2016 of $200,000. Plaintiff testified these funds went into the parties' joint checking account, again with belief the UBS account would be replenished with the proceeds of the sale of his Lido Boulevard house (p. 18, 6/14/18 transcript).
Plaintiff testified the Palm Bay, Florida house was purchased in both parties names, and that defendant put it into her name alone at a later date (p. 19, 6/14/18 transcript). He asserts he discovered this from an insurance broker, along with the existence of a lien placed on the property by defendant (pp. 21-23, 6/14/18 transcript). Exhibit 10 consists of three pages; a letter purporting to be from defendant to plaintiff stating since he claims to be owner of her Florida residence he can pay the tax bill, the tax bill for the Palm Bay property in the names of both parties, and a check from plaintiff's account dated December 22, 2017 to the Brevard County tax collector in the amount of $5,553 to pay the bill.
Plaintiff currently drives a 2017 Jeep Patriot purchased in October 2017 (p. 25, 6/14/18 transcript), he also has a 2005 Jeep Cherokee (p. 97, 6/14/18 transcript). During the marriage he drove a Honda Pilot, an Acura, the 2005 Jeep and a BMW convertible in Florida (p. 25, 6/14/18 transcript). Plaintiff's testimony is that the Honda Pilot and the Acura, the latter of which was purchased by the parties with cash for approximately $51,000 on October 2015 (exh BB), are both currently in the possession of defendant's son, being transferred to the son without plaintiff's knowledge at the time of or before the transfer (pp. 25-27, 6/14/18 transcript).
According to plaintiff when he left the marital residence he drove away in the Acura with "the clothes on my back and whatever odds and ends were in the vehicle" (p. 27, 6/14/18 transcript). A small amount of his personal property was left out by the garage, the rest he has no idea as to its disposition. Fifty-four (54) of his firearms, acquired prior to the marriage ended up in a pawn shop or gun shop (p. 27, 6/14/18 transcript).
Plaintiff testified defendant transferred $320,000 from the parties' joint Chase account 9327 to her personal accounts at Schwab. This is detailed in exhibits 2 and 3 which indicate electronic transfers of $50,000 on March 14, 2017, $50,000 on March 15, 2017; a second $50,000 transfer on March 15, 2017; $20,000 on March 28, 2017; $50,000 on April 4, 2017; $50,000 on April 21, 2017; and a paper check ( No. 1192 ) drawn on June 13, 2017 by defendant payable to herself in the amount of $50,000. Plaintiff asserts he did not authorize these transactions nor was he advised of them by defendant (pp. 28-30, 6/14/18 transcript).
Plaintiff testified he felt the marriage was ending around February or March of 2017 (p. 30, 6/14/18 transcript). He had been trying to get defendant to replenish the $200,000 which had been removed from the UBS investment account. The pair had been discussing making investments. He asked defendant if she put the money with Schwab. She said yes. He asked if his name was on it; she replied "No... F you. I'm keeping it, you're not getting it back." (P 31, 6/14/18 transcript).
The parties went trap shooting in Pennsylvania on June 10, 2017; arguing ensued during the trip, at one point defendant punched plaintiff while he was driving. When they got to Kirkville defendant allegedly became angry again with plaintiff and said "if I had a gun I'd blow your head off, I'd blow your f'ing head off" and then said "you don't realize this, but I own you" (p. 33, transcript 6/14/18).
Exhibit 5 sets forth funds deposited into the parties joint Chase account 9327 in the amount of $100,696, between December 6, 2016 and January 6, 2017, this was primarily through a deposit of $100,546 from a joint account of plaintiff and an employee of his, with TD Bank via a check dated November 25, 2016; which appears to have closed the TD Bank account which according to plaintiff had been maintained for a period of about ten years (p. 40-41, 43-44, 49-50, transcript 6/14/18).
On cross examination plaintiff testified he and defendant acquired joint title to Cavalier Street, Palm Bay, Florida on March 11, 2016 (p. 44, transcript 6/14/18). There was no mortgage, it was purchased for cash in the amount of $370,000 (pp. 45-46, transcript 6/14/18). This purchase was funded from joint Chase account 9327 which was opened about two weeks after the parties married (p. 46, transcript 6/14/18).
Exhibit B is a statement for Chase account 9327 for activity between November 27, 2015 and December 10, 2015. It is the opening statement for the account, it indicates an opening deposit of $2,200 by defendant on November 27 and a deposit of $339,564 by plaintiff on December 8 (pp. 47-49, transcript 6/14/18).
Defendant's exhibit N is the closing statement for TD Bank account 4372, it is in this respect identical to plaintiff's exhibit 6 discussed previously.
On cross examination plaintiff reiterated his direct testimony that $200,000 was loaned from his UBS portfolio to joint Chase account 9327, and that said was never repaid into the UBS account (p. 50, transcript 6/14/18). He testified the Palm Bay property was purchased with funds from the Chase joint account opened in October 2015 (pp. 50-51, transcript 6/14/18).
Exhibit E is a statement for a Chase account ending in 8528 jointly held by plaintiff and his employee for the period from October 6, 2015 to November 4, 2015. Plaintiff testified this account is closed. It is unclear exactly when it was opened or closed (see pp. 51-53, transcript 6/14/18). (Although it is clear the account was opened prior to the parties marriage, as shown by the beginning balance on exhibit E).
Plaintiff further testified on cross examination that he had little awareness of the collection of rents from properties during the marriage, nor deposits and withdrawals from the parties joint account (pp. 53-54, transcript 6/14/18), in particular after March of 2016 (pp. 55-56, transcript 6/14/18).
Regarding Lueck Lane in Liverpool, New York; cross examination elicited the following from plaintiff: The property was purchased on April 27, 2016 for $139,000 or 140,000 with funds from a joint account at Chase, one of three accounts that were opened in December 2015 shortly after the parties were married (p. 56, transcript 6/14/18). Exhibit M is a group of statements from Chase indicating three joint accounts as of June 5, 2017. These accounts end in the digits 9327 and 7356, both checking accounts, along with a savings account ending in 1262.
Plaintiff testified both parties participated in repairing Lueck Lane, and that third parties were hired for certain things such as pool repair, a basement project, and some painting. Defendant obtained renters and collected rents according to plaintiff (pp. 58-59, transcript 6/14/18). The carrying charges were paid out of a joint account with the checks being written by defendant (p. 59, transcript 6/14/18).
In relation to plaintiff's premarital separate property located at, East Setauket, New York; he testified he transferred said property to his son on June 30, 2017. He also testified he conveyed title to a piece of property, premarital and separate, in Maine to his son on June 29, 2017. These transactions took place three and four days after commencement of the action herein. In response to a question as to why these transactions occurred after the complaint was filed, in violation of the automatic orders, the gist of plaintiff's testimony was the property transactions were already in progress prior to commencement of this action (pp. 59-60, transcript 6/14/18).
Plaintiff admitted that the real property located at Kirkville Road, Kirkville, New York, the marital residence, was defendant's separate property. He also stated that during the marriage driveway improvements costing $15,000, a pool cover costing $1,800, and basement access improvements costing $1,500 were made to enhance Kirkville Road, all funded out of a joint account (pp. 62-63, transcript 6/14/18).
Plaintiff also admitted North Burdick Street, East Syracuse, New York was defendant's separate property (pp. 63-64, transcript 6/14/18).
Inquiry was made during cross examination about the defendant's significant withdrawals made from the joint Chase checking account. Plaintiff posited he did not know about the withdrawals at the time defendant made them (p. 65, transcript 6/14/18) and that he never suggested to defendant that she invest into her Schwab account with funds from Chase (p. 65, transcript 6/14/18). Plaintiff testified he asked defendant if she put money in the Chase account, she replied "yeah", he said in both our names?", she said "no" and added "you ain't getting it back either." (Pp 65-66, transcript 6/14/18). Plaintiff testified he did not give defendant permission ("the green light") to open accounts with Schwab (p. 66, transcript 6/14/18).
Plaintiff was cross examined regarding his investment accounts. He stated he closed out his accounts with Schwab in May, June and/or July 2017. His testimony was one Schwab account contained roughly $37,000 and the rest had virtually nothing in them. He moved the money from the Schwab holdings to his UBS account, "to consolidate everything under the same roof" (p. 67, transcript 6/14/18). Plaintiff opened Trade Station accounts during the marriage and closed them out also in the spring of 2017. The aggregated money in those three accounts was approximately $60,000-75,000. According to plaintiff the reason for this was "to consolidate all my stuff" and that money "came out of UBS in the first place" (p. 68, transcript 6/14/18. Plaintiff actively traded in his investment accounts, via computer, without a financial advisor, during the marriage (p. 69, transcript 6/14/18).
The UBS account is the only investment account plaintiff had as of trial (p. 69, transcript 6/14/18). According to plaintiff the approximate value of his UBS investment account was just over $800,000 in November 2015, when the parties' marriage occurred (pp. 69-70, transcript 6/14/18). Exhibit W is a November 2015 summary of plaintiff's UBS portfolio indicating a value of $823,789 on October 30, 2015 and $825,644 on November 30, 2015. Plaintiff testified he did not do much trading with the UBS account during the marriage, "it pretty much sat there" (p. 71, transcript 6/14/18).
Exhibit X is a June 2017 summary of plaintiff's UBS portfolio indicating a value of $572,160 on May 31,2017 and $1,009,625 on June 30, 2017. At trial plaintiff was unable to explain this increase from independent memory, stating it made no sense to him, and that he would have to review paperwork. He further testified that the account is currently right around the $1,000,000 level in value (pp. 71-73, transcript 6/14/18).
Plaintiff testified defendant performed homemaking services, did travel scheduling and arranged medical appointments during the brief marriage, as well as managing the Cavalier Street and Lueck Lane properties. However, he also stated that both parties had participated in the rehab of Cavalier Street, along with outside contractors. Plaintiff added that the parties at one point in time did hire a household cleaning service (pp. 73-75, transcript 6/14/18).
Prior to the marriage plaintiff loaned money to three people; plaintiff testified that defendant did not assist him in collecting these debts (pp. 75-76, transcript 6/14/18).
Exhibit PP is a copy of the parties' joint tax return for tax year 2016. The exhibit indicates, in line 7; "wages, salaries, tips, etc." in the amount of $145,004. There was some truncated cross examination of plaintiff regarding this exhibit and plaintiff's allegedly taking a pay cut in 2016 (p. 81, transcript 6/14/18). There was confusion as to whether exhibit PP reflected income earned in tax year 2015 or tax year 2016 (p. 82, transcript 6/14/18). After further review by the court, in drafting this decision, it is clear that exhibit PP relates to income received in tax year 2016. There was also some confusion arising from defendant's attorney's line of questioning regarding whether plaintiff took a pay cut in 2016 or in 2017; this stemmed from some inconsistent testimony on the part of plaintiff as to when he took the pay cut. In reviewing plaintiff's testimony on pp. 79-81 (transcript 6/14/18) and pp. 8-9 (transcript 6/14/18) he stated that the pay cut occurred in March of 2017 and in March or April of 2017. Accepting exhibit PP as accurate, as plaintiff indicated it is (p. 81, transcript 6/14/18), it appears that the pay cut occurred in 2017 as plaintiff initially testified (p. 8, transcript 6/14/18).
Plaintiff had not filed a return for tax year 2017 as of the date of trial as he has been awaiting defendant to file, in order that the tax returns will comport, he did file for an extension (pp. 82-83, transcript 6/14/18).
Regarding vehicles: plaintiff posited he currently has a 2017 Jeep Patriot, purchased for approximately $20,000 in October 2017. A used BMW convertible, now in Florida, was acquired by the parties in Florida for around $6,500. An Acura was purchased for approximately $51,000 from the Crest dealership according to plaintiff (pp. 85-86, transcript 6/14/18). Exhibit BB is an invoice for the sale of the Acura to both parties on October 27, 2015, a month prior to the marriage for $51,263. Plaintiff testified that Acura was paid for by him despite it being titled in both names, he indicated his name was no longer on the title at the time of trial. Plaintiff also stated defendant came into the marriage with a Honda Pilot she had previously acquired (pp. 86-87, transcript 6/14/18).
Exhibit 22 is, in part, a list of personal property left at Kirkville Road by plaintiff when he left the marital residence. At trial plaintiff testified certain items contained on exhibit QQ were actually marital property, specifically: 15 cases of Remington STS 12 gauge rounds, a Homelite ("home white") chainsaw, and a deluxe heavy duty leather shooting bag (pp. 90-92, transcript 6/14/18).
As plaintiff concluded his testimony at trial he set forth that in addition to the UBS investment portfolio and vehicles he currently owns and previously testified about, he has additional assets in the form of trucking companies and buildings which he has owned with partners (one entity having two partners, two entities having three partners, an one entity having four partners), these entities have existed for 25 to 30 years (pp. 95, transcript 6/14/18). He indicated the UBS account is worth approximately one million dollars and that he has equitable claims to the real property in the state of Florida and in Liverpool, New York as they were purchased during the marriage, in addition there is a joint Chase account which was largely depleted during the marriage. Plaintiff estimates the value of his share of the various business entities to be worth approximately $1.1 million dollars. His total net worth is approximately $2,050,000 according to him (pp. 96-99, transcript 6/14/18).
Plaintiff testified he is 72 years old, defendant is 53 years old. He asserts his health is excellent; however, he also stated he takes a number of medications, and is being treated for depression which began prior to the marriage and continued through to the present time (pp. 99-102, transcript 6/14/18).
In her direct testimony defendant wife testified she currently resides at Cavalier Street, Palm Bay, Florida and has resided there since August 8, 2017. Prior to that time she resided at Kirkville Road for seventeen years (p. 103, transcript 6/14/18).
Defendant testified she is currently unemployed but receives income from a few of her rental properties. More specifically, she receives $600 per month from North Burdick Street, East Syracuse (purchased in 2005), $2,150 monthly from East Taft Road, (purchased in 2008), and $1,500 monthly from Lueck Lane (purchased in April 2016). She further indicated said figures were gross rents prior to her paying carrying charges for the properties (pp. 103-104, transcript 6/14/18).
Exhibit HH is defendant's tax year 2016 tax return and exhibit II is defendant's return for tax year 2017. Exhibit HH shows an annual income of $14,913, exhibit II shows annual income of $17,387.
Defendant testified that at the date of the marriage she was working part-time at Cosenza Hair Designs as a hairstylist. In addition, she was the owner of said entity, which she established in 1992. The hair salon is located at North Burdick Street and defendant currently has one subcontractor working there, she has personally been cutting hair for 35 years (pp. 106-107, 109, transcript 6/14/18). Defendant also worked as a firearms instructor as the marriage began, earning $4,000 - $5,000, but it was never her main source of income (pp. 107-109, transcript 6/14/18).
Defendant contends her employment status changed upon her marriage as plaintiff informed her that she did not need to work during a discussion prior to the parties engagement on October 14, 2015.
Defendant testified she was concerned with her retirement, as she is 20 years younger than plaintiff, regarding not working (pp. 110, transcript 6/14/18). She asserted she always worked, and never not worked (pp. 110-111, transcript 6/14/18). She stopped cutting hair on December 22, 2015, approximately one month after the parties' wedding (p. 111, transcript 6/14/18). Defendant posited she has not derived any income from the salon property after December 2015. She then testified that she does receive money from the property, but it pays the carrying costs of the salon, said funds are deposited into defendant's business account (from her subcontractor) with Berkshire Bank, defendant then pays the monthly expenses but asserts she makes no profit (pp. 112-113, transcript 6/14/18).
When questioned by her attorney to summarize the contributions made by her to plaintiff during the brief marriage in any capacity her answer was: "I really felt that he married me just to take care of him." (p. 113, transcript 6/14/18). She asserts plaintiff became "her full time job", she testified she picked out his clothes, did laundry, grocery shopped, cooked, planned shooting trips, took care of firearms, cut plaintiff's hair, and helped him with his computer when he was trading stocks while in Florida (pp. 114-115, transcript 6/14/18). Defendant alleged she did "everything" after the parties acquired the Florida property and Lueck Lane in Liverpool (p. 115, transcript 6/14/18).
Defendant testified Cavalier Street in Florida was purchased in March 2016 with the intent to rent it out. It was rented that summer for $3000 monthly, defendant stated she collected the rent and deposited it in joint Chase account 9327. She alleges she, her mother and her aunt (ages 77 and 82) cleaned and painted the property, although most of the painting and some cleaning was done by defendant's cousin who was hired by plaintiff. Defendant alleges plaintiff did no cleaning or painting. Defendant also testified she primarily decorated and furnished the house although plaintiff accompanied her to some estate sales "she was in charge of that whole orchestration" (p. 121, transcript 6/14/18, see pp. 116-121, transcript 6/14/18).
Defendant went on to further testify that the property was actually only rented for "just a couple of weeks in the summertime" (p. 121k, transcript 6/14/18). Defendant moved in herself in the fall of 2017 (p. 122, transcript 6/14/18). Subsequent to moving in she claims she has paid $2,600 for insurance, the monthly utilities, mowing and for a security system. She also alleges to have paid $8000 out of pocket for hurricane damage (p. 122, transcript 6/14/18).
Lueck Lane in Liverpool, New York was purchased solely by her as evidenced by exhibit F, the deed to Lueck Lane. However, it was purchased during the marriage and with funds from a joint Chase account. Defendant set forth that plaintiff was aware of this transaction but provided no reason as to why the deed was in her name only (pp. 123-125, transcript 6/14/18).
Defendant went on to testify that Lueck Lane was "flipped" in nine (p. 126, transcript 6/14/18) or ten (p. 127, transcript 6/14/18) days. She contends she brought in two people who did work for her periodically and a nebulous "we" painted the entire property, replaced the carpet, replaced the kitchen floor, refinished other floors, replaced light fixtures, brought in a new refrigerator, replaced a pool liner and brought in her family's business to do landscaping (p. 126, transcript 6/14/18).
Defendant then testified that rather than "flipping" or selling Lueck Lane, she decided after failing to sell the property she would rent it out, which she was successful in accomplishing in 30-45 days. The property was rented to a family for a little over a year for $1,900 monthly (p. 127, transcript 6/14/18). Defendant testified she collected the rent and deposited it into the joint Chase account. She also asserted plaintiff did "zero" with respect to Lueck Lane, which at the time of trial had been occupied for a couple of weeks by a single female for $1,500 monthly (pp. 128-129, transcript 6/14/18).
Defendant testified she sustained a physical injury while at the Old Post Road (the Long Island) property on August 26, 2016. She was crawling through an open window, hanging on to it, the window broke and she fell to the hardwood floor. She testified that she got a concussion and nerve damage in her arm and hand, and can never work as a hair dresser again due to the pain. (pp. 129-133, transcript 6/14/18).
Exhibit GG is defendant's statement of net worth, it was completed on September 18, 2017. Defendant testified that subsequent to the date of the net worth statement certain things changed: in particular she sold her Kirkville Road property on or about November 30, 2017 (post commencement), she has no dental plan, her medical plan is $700 monthly, and the homeowner's insurance for Cavalier Street is $2,600 annually (pp. 134-136, transcript 6/14/18).
Exhibit K is an amendment to the trust agreement for the Catherine Barney Irrevocable Trust. The trust and the amendment according to defendant relate to the property at Kirkville Road, which was sold post commencement. Exhibit L is a statement of sale for Kirkville road dated November 30,2017, with a purchase price of $270,000 indicated. Defendant testified she initially acquired title to Kirkville Road in 2000 (p. 136-137, transcript 6/14/18). The court notes that Exhibit K the amendment to the trust agreement directing the sale of real property was executed on February 29, 2012 and said document along with the attached warranty deed reflect property conveyed to defendant by quitclaim deed dated January 13, 2005 and recorded on January 19, 2005; with an additional filing date of June 19, 2008 indicated on both documents.
Defendant testified she acquired East Taft Road in 2007, and that said property was subsequently put into an LLC. The property consists of four one bedroom apartments, all are occupied. Defendant receives gross rents of $2,150 monthly from the property, she asserts that these rents were deposited in the joint Chase account during the marriage (pp. 137-138, transcript 6/14/18). Exhibit L-1 is a warranty deed for East Taft Road dated October 8, 2007 transferring the property to defendant.
Defendant testified she acquired North Burdick Street, the hair salon, this is evidenced by exhibit L-2 a warranty deed for said property dated December 14, 2001 by which the property was conveyed to defendant Catherine Barney from Assunta as surviving spouse of Robert, subject to a life estate unto Assunta. The rent from this property also discussed above which remains in defendant's name goes into a separate business account (p. 138, transcript 6/14/18).
During the duration of the marriage defendant opened certain "investment" accounts with Schwab. These accounts are reflected in exhibit KK which indicates four accounts and their values as of May 8, 2018; ending in 4587 ($101,961), in 9703 ($5,851), in 4907 ($5,851), and in 5392 ($15,707). Defendant testified she opened these accounts in the spring of 2016 and that funds used to initially establish these accounts came from her "personal account" (p. 139, transcript 6/14/18) or her "business account" at Berkshire Bank (p. 142-143, transcript 6/14/18).
She testified when she opened the accounts with a deposit of probably, $6,500 (p. 144, transcript 6/14/18) or $7,500 (p. 143, transcript 6/14/18) from her personal funds. She has not put any money into the Schwab accounts since the spring of 2017 (p. 146, transcript 6/14/18). Between the opening deposits in spring of 2016 and the final deposits in spring of 2017, the accounts grew to over $100,000, this was funded by withdrawals from the parties joint Chase account (p. 145-146, transcript 6/14/18).
The Schwab accounts were opened at about the same time as the Florida real property was purchased (p. 145, transcript 6/14/18); the real property purchase was funded from a jointly held "property checking account" at Chase (p. 141, transcript 6/14/18).
Defendant's net worth statement (exhibit GG) dated September 18, 2017, posits "NA" or not applicable in Section VI relating to assets transferred. To clarify the record the Court made inquiry as to whether any assets were transferred by defendant during the marriage. Defendant's response was she transferred $320,000 from the joint Chase account (pp. 147-148, transcript 6/14/18). She also transferred the Lueck Lane property into an LLC prior to the commencement of the action (pp. 148-149, transcript 6/14/18), sold the Kirkville Road property subsequent to the commencement of the action, and the filing of her net worth statement, in November 2017 (p. 149, transcript 6/14/18). She transferred Cavalier Drive, Florida to her name alone in October 2017 (p. 150, transcript 6/14/18). The transfer of the $320,000 from a Chase joint account into an account solely in her name took place over several months (p. 150, transcript 6/14/18). The Acura automobile was transferred after the filing of the net worth statement (p. 150, transcript 6/14/18).
Defendant testified she moved $270,000 or $320,000 from the parties joint Chase account to Schwab IRA/Roth Accounts solely in her name (p. 3, transcript 6/18/18). Exhibit TT and defendant's testimony (pp. 4-5, transcript 6/18/18) indicate transfers from Chase to Schwab of: $50,000 on March 14, 2017; $50,000 on March 15, 2017 and a second $50,000 transfer on March 15, 2017; and $50,000 on April 4, 2017; the four transactions totaling $200,000 from the joint account into an account solely in defendant's name. Defendant testified she moved $70,000 of the $200,000 from her Schwab accounts just delineated into a Schwab checking account (pp. 5-6, transcript 6/18/18).
However, exhibit UU a document relating to defendant's Schwab checking account ending in 72009 from March 27, 2017 to May 4, 2018 reflects a $20,000 deposit from a joint Chase account on March 27, 2017 and a $50,000 deposit from a Berkshire Bank account (now closed) ending in 05637. Exhibit UU also indicates transfers from Schwab brokerage account 4587 on November 15, 2017 in the amount of $100,000; on January 11, 2018 in the amount of $12,000 and on January 16, 2018 in the amount of $7,000. There was also a transfer to account 4587 from the checking account on November 16, 2017 in the amount of $30,000.
Defendant alleges she used the $70,000 she testified about transferring to checking to pay marital bills (p. 7, transcript 6/18/18). She testified regarding the following attachments to exhibit UU which were for "marital bills": $8,127 to repair rental property at Taft Road (her separate property), $2,598 for the property tax bill for Burdick Street (her separate property), $1,740 for a payment to the Internal Revenue Service for her 2016 taxes (hers, not a joint return), $4,195 for property taxes on Lueck Lane (jointly held), $10,852 for repairs to Taft Road (her separate property), $1,956 a mortgage payment for Kirkville Road (her separate property, but the marital residence), $73,000 for Kirkville Road "to buy off the mortgage that was still owed on the property when I was forced to sell my property" (p. 11, transcript 6/18/18). Defendant testified she made "zero money" on the Kirkville Road marital residence/separate property, "actually, the property was in an irrevocable trust" (p. 11, transcript 6/18/18). Attachments to exhibit UU also indicate payments for insurance on Burdick Street (separate property) in the amount of $1,368 and property tax payment of $2,506 for Lueck Lane (jointly held); $2,387 for a contractor to repair hurricane damage at Cavalier Drive, Florida; $2,000 for repairs to Lueck Lane; and $5,155 for a retainer to defendant's counsel.
Defendant corroborated plaintiff's testimony that in June 2017 she withdrew an additional $50,000 from the joint Chase account which she "siphoned into a property account which I used to pay bills" (p. 13, transcript 6/18/18). Said account was at Berkshire Bank, statements from said business checking account ending in 4114 are evidenced in exhibit VV.
Exhibit VV begins on July 31, 2017 and concludes with April 30,2018. According to defendant the account was opened in mid-June 2017, prior to the commencement of the divorce action, with a deposit of $50,000 from the joint Chase account (pp. 17-18, transcript 6/18/18). The account balance on July 31, 2017 was $22,005; on April 30, 2018 the account balance was $3,863. Defendant testified regarding various withdrawals from the account some for expenses for marital property, others for expenses for her separate property.
Defendant testified she stopped using the three joint accounts after June 2017 (p. 26, transcript 6/18/18). Exhibit D-1 consists of statements from Chase joint accounts ending in 9327, 7356 and 1262, the first two being checking accounts and the third a savings account. These statements begin on April 6, 2016 with a combined opening balance of $161,841 and end on May 3, 2017 with a combined balance of $102,744. According to defendant's testimony after Cavalier Street, Palm Bay was purchased in March 2016 plaintiff continued to deposit his Social Security checks in the joint Chase account, defendant deposited checks from the rental properties (North Burdick Street, East Taft Road and Lueck Lane), and defendant also testified she made withdrawals to pay bills (p. 28, transcript 6/18/18).
Defendant testified regarding plaintiff's conduct: she contends that "they" changed plaintiff husband's medication in December 2016; and he went from being "an absolutely wonderful man" to "a monster" (p. 29, transcript 6/18/18). She stated "he was always pleasant, friendly, but his mood became very dark, distracted", his "behavior became more erratic" (p. 40, transcript 6/18/18). She alleged plaintiff tried to break her arm and/or wrists in January 2017, screamed obscenities at her and pushed her across the kitchen in February 2017, dragged his dog 300 feet across the yard after the dog tried to chase a car in April 2017, he also allegedly hit defendant's dog with a shovel when the parties' two dogs were fighting (pp. 29-32, transcript 6/18/18).
Defendant testified that "we" decided to move money from the joint Chase account to the Schwab account in February 2017 while at their house in Florida. Defendant alleges the purpose of this movement of funds was to help her invest and teach her how to invest. Defendant is adamant that this was done with plaintiff's knowledge, she asserts the parties had seven or eight discussions about investments and withdrawals (p. 33-35, transcript 6/18/18).
At some point in time, defendant posits, plaintiff asked if the money was in a joint account, defendant replied "no" and plaintiff became upset and wanted defendant to put the money back (p. 35, transcript 6/18/18). Defendant asserts she did not put the money back as "he had agreed that the money should go into an account for me for my investment purposes", she claims "I had given up my career" and "he always said it was our money, our money" (p. 37, transcript 6/18/18). The Court notes that "our" money was moved from "our" joint account into "her" account solely in "her" name.
Defendant claims she told plaintiff of the large transfers of money prior to the transfers being made, and that their last discussion relating to money was in May 2016 (p. 38, transcript 6/18/18).
In regard to plaintiff's departure from the marital residence on June 11, 2017: defendant testified she believed plaintiff was leaving to wash the car and then he did not return. She stated she called him 100 times and had her children try to reach him, to which he did not respond and that she called the Manlius police for a wellness report (pp. 40, 43, transcript 6/18/18).
Defendant denied she ever threatened to blow plaintiff's brains out and stated she was not upset over her performance at the Pennsylvania shooting competition (p. 41, transcript 6/18/18). She claims the parties left the competition because she was worried about plaintiff's psychological state, about him holding a gun, asserting that he had both an unnamed psychologist in Syracuse and a psychiatrist on Long Island. She also claims plaintiff did not follow his prescribed medication regime, adding and subtracting from it (pp. 42-43, transcript 6/18/18).
Exhibit DD consists of two power of attorney forms, executed by the parties on December 29, 2015, each appointed the other as their agent.
Exhibit RR is a quitclaim deed dated October 31, 2017 for the property located at Cavalier Street, Palm Bay, Florida. The grantors are the parties, the grantee is defendant. Defendant's testimony was she used the power of attorney "when he quit claimed the deed from Cavalier Street from us to me in October 31, 2017" (p. 48, transcript 6/18/18). The Courts finds this testimony to be disingenuous at best. Plaintiff never signed the deed, and was unaware of the transaction, defendant shockingly used the power of attorney to transfer the property to herself.
Defendant asserts she did this to get a homestead exemption in Florida, much like New York's STAR exemption. She claims she could not do this with plaintiff on the deed as his address was on Long Island, whereas hers was in Florida. Defendant contends the exemption reduced the assessment on the property by $25,000, with a resulting decrease in taxes (pp. 49-50, transcript 6/18/18).
The Court notes that throughout her prior testimony defendant described the "marital residence" as being Kirkville Road in East Syracuse. The Court also notes that while the quitclaim deed lists defendant grantee and the grantors as having an address of Cavalier Street the deed also sets forth that the "property is not the homestead of Grantors". There is nothing in the record indicating defendant had or has any other address, residence or property in Florida.
Defendant testified that she did not consult with her husband before doing this, nor after, as he does not return her calls (p. 50, transcript 6/18/18. Defendant made no attempt to sell the property as she saw no purpose to doing so, and considered that the parties were "embroiled" in a divorce. She asserts she had no intention to steal the property from her husband (p. 51, transcript 6/18/18). The Court finds this assertion outrageous and completely lacking in credibility.
Exhibit SS is a lien filed by defendant on Cavalier Street on July 21, 2017 in the amount of $350,000. In the lien she posits her address as North Burdick Street, East Syracuse, New York, the address of her business, the hair salon. Defendant contends she did this "to encapsulate the liability of the property" (p. 52, 53 transcript 6/18/18). She went on to explain at trial that if someone sued plaintiff husband they could not force the sale of or recoup any money from Cavalier Street as she would be the first lien holder. She went on to state she was not aware of any lawsuits pending by third parties against her husband (nor was any evidence of such adduced at trial) but she had "concerns, because of his mental instability" (p. 53, transcript 6/18/18).
Defendant sent an e-mail in July 2017 seeking to revoke the power of attorney given to him, although she also testified that she was not aware of him exercising the power of attorney at any time (pp. 54-55, transcript 6/18/18).
Exhibit LL is a list, prepared by defendant and her daughter in March of 2007 after the death of defendant's father, of firearms she asserts are her separate property (pp. 55-56, transcript 6/18/18).
Exhibit MM is the retainer agreement between defendant and her attorney. Exhibits NN and OO are bills from defendant's attorney, the former indicates an unpaid balance for services through January 26, 2018 of $4,765 and the latter a total unpaid balance through June 14, 2018 (the first of two days of trial) for $11,403. Defendant seeks an award of 100 percent of her legal fees from plaintiff (p. 63, transcript 6/18/18).
Defendant seeks maintenance, she recognizes that she has received temporary maintenance, but seeks to extend the term of maintenance as she has no income and desires to go back to school in a paralegal program (pp. 58-59, transcript 6/18/18).
Defendant's net worth statement indicates her educational level as high school, at trial she testified that is incorrect, she in fact has a Bachelor of Science degree from Oswego State granted in 1988 (pp. 59-60, transcript 6/18/18).
In relation to the parties lifestyle defendant testified they had a great standard of living, but now she has more bills to pay with less income. She asserted "I had to sell my house because I could not afford to maintain both properties: (p. 60, transcript 6/18/18). When questioned as to what her current assets are as far as her ownership of real property she testified she owns Cavalier Street in Palm Bay, Florida; North Burdick Street in East Syracuse, which she owns free and clear and which has an assessed value of $100,000 to $110,000; 6897 East Taft Road which is encumbered with an $80,000 mortgage and has an assessed value of approximately $125,000; and Lueck Lane in Liverpool, NY, which is owned free and clear and has an assessed value of approximately $147,000. She described only Lueck Lane as marital property in this portion of her testimony (p. 61, transcript 6/18/18).
Defendant alleges her hair salon does not have any value, "because it's not making any money" (p. 62, transcript 6/18/18).
When questioned about her current bank accounts defendant testified to the following: she has a Schwab "investment" account valued at about $150,000; a "business" account containing about $2,000; and a "property" account containing about $5,000. She denies having any other assets (p. 62, transcript 6/18/18).
At the conclusion of her direct testimony defendant summarized what she seeks as an equitable distribution award: 50 percent of Cavalier Street; 50 percent of Lueck Lane; 100 percent of the money she withdrew from the Chase joint accounts, as "they were withdrawn with the consent of my husband. He and I made this consent together, and he always insisted that this was our money, not his, not his that he brought into the marriage and he was letting me use. He referred to it as our money repeatedly." (see pp. 62-63, transcript 6/18/18).
Defendant also argues she should get 50 percent of any increase in plaintiff's UBS financial portfolio; stating "He made a lot of money during the course of our marriage. I assisted him in the ability to do so. I'm looking for 50 percent of that." (p. 63, transcript 6/18/18).
On defendant's cross examination it was elicited that she was served with the complaint on July 5, 2017, she served an answer on August 14, 2017, and she was aware of the automatic stay language in the complaint (pp. 63-64, transcript 6/18/18).
Defendant was asked if she, or she and plaintiff, own Cavalier Street and Lueck Lane. Her response was "Well as of right now, Cavalier Street I own, and, yes he and I owned — or own Lueck Lane." (p. 65, transcript 6/18/18). She reiterated her testimony that in terms of cash accounts she has $150,000 in the Schwab account, $2,000 in the "business" account and $5,000 in the "property" account, with no other cash assets (p. 65, transcript 6/18/18).
When questioned on cross examination about her withdrawals from joint accounts, defendant denied withdrawing $320,000. She contends initially that she withdrew a mere $220,000. Plaintiff's counsel and defendant then entered into a series of questions and answers indicating the following withdrawals from the joint account: $50,000 on March 14, $50,000 on March 15, another $50,000 on March 15, $20,000 on March 28, and $50,000 on April 4. On April 21 another $50,000 was withdrawn, defendant claimed this withdrawal was from her Berkshire Bank account, but a review of exhibit 11 indicated that it was in fact from the joint Chase account 9327 and into defendant's Schwab account (pp. 66-67, transcript 6/18/18). The above withdrawals total $270,000.
Defendant then wrote herself a check for another $50,000 on June 14, for a total of $320,000. Defendant then admitted the $320,000 figure sounds right (p. 68, transcript 6/18/18).
When asked about what happened to the balance of the $320,000 in light of her assertion she has $150,000 in the Schwab account, which she previously testified was to be used for her to invest with defendant stated she paid "our bills" apparently in the claimed amount of $170,000 (p. 68, transcript 6/18/18). (The Court notes a probable typographical error on page 68 of the transcript).
Subsequent to writing the $50,000 check to herself on June 14 defendant sent an e-mail which stated: "My Dearest Husband. By now you must have noticed the money missing from our joint account. Too bad you were too late to the bank to cash anything out." (p. 69, transcript 6/18/18). Asked if she recalled sending the above e-mail her response was "Absolutely" (p. 69, transcript 6/8/18). This testimony belies defendant's testimony that the withdrawals she made from the joint Chase accounts were made with plaintiff's knowledge and consent. The Court finds defendant lacking in credibility.
On cross examination it was also elicited that defendant entered into a contract for a pool at the Florida property, she then cancelled the contract on July 27, 2017. She directed the refund check, in the amount of $4,636 be sent to her at North Burdick Street, which she stated is her office and where she gets her mail. The refund check was deposited in her "property" account. (pp. 69-71, transcript 6/18/18).
In regard to defendant's testimony on direct about claims to have done a great deal herself to enhance the Lueck Lane property it was brought out that in reality much of the work was performed by people hired by defendant to do such labor. These people were paid from money from a joint account funded by primarily by plaintiff's transfers of funds from premarital separate accounts (p. 72, transcript 6/18/18). The purchase of Lueck Lane was made by defendant, initially in her name alone, but with funds from a joint account. When asked when how the joint account was funded defendant said it was "with both funds from he and I", when asked a follow up question as to how much of his and how much of hers, defendant testified: "I started it with the $2,200, and he put in 300 plus thousand dollars, but all my money went into the joint account". Actually about $321,000 (p. 73, transcript 6/18/18). The initial purchase of Lueck Lane in defendant's name was on April 28, 2016. She moved it into an LLC ( Lueck Lane, LLC) on August 15, 2016, the property generates $1,500 monthly in rental income (p. 72, transcript 6/18/18).
The Cavalier Street property in Florida was purchased on March 11, 2016. Prior to making the purchase plaintiff had transferred approximately $339,000 on December 2015 from his separate account to the parties joint account, this was subsequent to a prior $200,000 transfer into the joint account from his premarital assets. Some of this money was used to purchase Cavalier Street, which was purchased for cash (p. 74, transcript 6/18/18).
Cavalier Street was rented out by defendant, to her son, for a period of 10 weeks, for the sum of $3,000 which she deposited into the joint account (pp. 74-75, transcript 6/18/18).
Exhibit SS is the claim of lien on Cavalier Street, dated July 21, 2017 (post commencement and post service of the complaint). The lienor is defendant, who used her North Burdick Street, East Syracuse, New York address as lienor. Defendant admitted during her cross examination that the lien encumbered the Florida property and therefore violated the automatic orders served on her with the complaint (p. 76, transcript 6/18/18). The lien sets forth that notice was served on both parties, as owners, by certified mail. On cross examination defendant testified the claim of lien was never served on plaintiff, however, she stated "I served it on myself." (p. 77, transcript 6/18/18).
Defendant was asked if she filed the lien to "encapsulate liability" as she testified on direct or because she "furnished labor and materials" as indicated on the lien. Defendant claims the statement in the lien is not untrue, that it is accurate, she also testified: "I wasn't going to put on here that my husband suffers from mental illness and I need to put a lien against this in case we got sued because of something that he does." (pp. 78-79, transcript 6/18/18).
She went on to testify as follows: "I am protecting my investment. If somebody wants to sue him for his personal assets, that's fine. That's not my problem. I have no interest in them, according to him. But, the house in Florida, that is my home, that is what I have made investment in, and I was protecting my investment. No questions about it. Because I owned that property with him at the time, and in the event that he decided that he was going postal somewhere, because he had access to guns, even after an order of protection was served on him, I had to protect my interests, because lawsuits happen" (p. 80, transcript 6/18/18).
The above testimony was defendant "expounding" on her deposition wherein she indicated she put the lien on because plaintiff didn't want her to have anything (pp. 79-81, transcript 6/18/18). She also confirmed her prior testimony at her deposition that she "put a lien against the property. I am the first lien holder on it to protect myself and my investments and myself." Her answer to whether that testimony was true was "absolutely" and "that is true" (p. 80, transcript 6/18/18).
Defendant went on to testify that she put the amount of the lien at $320,000 because that is the value of the house. When asked a follow up question that it therefore had nothing to do with what labor and materials were furnished defendant attempted to backtrack and claim "labor and materials is part of that $320,000"; defendant eventually admitted she never furnished $320,000 worth of labor and material, she just wanted to be the first lien holder (pp. 81-82, transcript 6/18/18). Again, defendant's testimony surrounding the filing of lien demonstrates a lack of credibility on her part.
Cross examination then moved to the quitclaim deed executed on October 31, 2017 (post commencement) by defendant transferring Cavalier Street from both parties to defendant alone. Defendant never discussed the transfer with plaintiff, never sought his approval, she put the property into her sole name by using a power of attorney. The Court notes that in order to get the homestead exemption she indicated that she had a Florida residence (pp. 82-85, transcript 6/18/18). In other testimony she indicated Kirkville Road was the marital residence, and on the lien she filed against the Florida property she used the North Burdick Street address, where she gets her mail. Again, defendant's testimony indicates a lack of credibility.
In regard to the power of attorney defendant testified "it gives you permission to act on someone's behalf" (p. 86, transcript 6/18/18). She indicated no awareness of the concept of fiduciary obligation (pp. 86-87, transcript 6/18/18). Considering the Court's assessment of defendant's credibility, or lack thereof her testimony is not surprising. Let us be clear: An agent acting under a power of attorney has a fiduciary relationship with the principal. A person acting under a power of attorney has the obligation to act according to any instructions from the principal or, where there are no instructions, the best interest of the principal, and to avoid conflicts of interest. An agent shall observe the standard of care that would be observed by a prudent person dealing with the property of another. ( General Obligations Law Section 5-1505 ).
Defendant's conduct in transferring Cavalier Street from both parties' names to hers alone was not an action taken according to any instructions from plaintiff and she never sought his consent nor even made him aware of the transaction. By no stretch of the imagination was she acting in plaintiff's best interest, and as the transfer to herself was after the commencement of a divorce action she certainly had a conflict of interest. Defendant's conduct in transferring Cavalier Street to her sole ownership via a power of attorney was an egregious breach of her fiduciary duty.
In addition, defendant asserts she never received notice in June 2017 revoking the power of attorney granted to her by plaintiff (p. 87-88, transcript 6/18/18).
Defendant went on to testify: "I could have signed this deed over to anyone, anyone, pick a random person off the street. I signed it off to, obviously, to myself. I didn't put it on the market. The only benefit of it is, I can pay less taxes." (p. 89, transcript 6/18/18).
Exhibit 10 consists of a letter from defendant to plaintiff, a tax bill for Cavalier Street and a check from plaintiff drawn on an account solely in his name paying the tax bill of $5,553 in full. The letter reads as follows: "My Dearest, since you "claim" that you are the original owner of my Florida residence, you can pay the tax bill. All my love! Cathy." When questioned about this episode defendant admitted sending the letter and tax bill to plaintiff and said she is "eternally grateful" for him paying it (pp. 89-90).
Moving on to the Kirkville Road property, described as the martial residence: Defendant testified the mortgage on said property to be $1,956 monthly, which was paid out of the joint account during the term of the marriage. During the marriage a new driveway was put in, costing $14,000 to $15,000 and there was remodeling done in the basement. Defendant sold the Kirkville Road property, which was her premarital property, after the divorce action was commenced. She then attempted to backtrack and defend her conduct that "the property was owned by an irrevocable trust, so I didn't own it. (pp. 91-92, transcript 6/18/18).
In regard to North Burdick Street, East Taft Road and Lueck Lane defendant confirmed on cross examination that she collects rents in the aggregate amount of $4,250 monthly for the properties (pp. 92-93, transcript 6/18/18).
Cross examination then moved to the marital expenses defendant claimed she paid out of the joint accounts. Much of the testimony centered on defendant's expending money on periodic bills for, and repairs to her separate (North Burdick Street and East Taft Road) property with money from a joint account. Defendant also testified she deposited the rents she collected in the jointly held "property" account (pp. 93-95, transcript 6/18/18). Defendant pointed out that plaintiff had signing privileges on the Berkshire Bank account but that to her knowledge he never used the account. When asked if the East Taft Road property (part of an LLC called the Eccellare Group) was marital property defendant stated it was not as it was purchased before the marriage. However, defendant contended plaintiff enjoyed the benefit of it for tax purposes, and the rental income which was deposited into the parties' joint "property" account every month, although plaintiff never used the property account to defendant's knowledge (pp. 95-96, transcript 6/18/18). Testimony touched on checks drawn by defendant from a joint account to pay for a contractor working on her separate East Taft Road property in the amounts of $10,852 on September 23, 2017 and $8,127 on September 6, 2017 (pp. 98-99, transcript 6/18/18).
In regard to the Kirkville Road residence: defendant paid $73,000 out of the joint checking account to pay off the mortgage on her separate property (p. 99, transcript 6/18/18). There was discussion at trial as to whether this property was sold by defendant or some irrevocable trust which owned the property.
Cross examination then turned to a June 16, 2017 e-mail from defendant to plaintiff in which she stated: "I am lonely without you and can't believe you don't feel the same. I am as committed to you as the day I married you;" along with "I'm not giving up on this and I will never agree to a divorce;" and "I love you". This was contrasted with defendant's prior testimony that the relationship was strained and not good in May 2017 and the relationship was pretty much over by June 11, 2017; and defendant's saying "He became a monster, yes, absolutely." Defendant's answer to this was to testify that she still loves him; "I still do to this day, because I felt that I needed to stand by him. I knew he needed help." (pp. 103-104, transcript 6/18/18).
In regard to vehicles, on cross examination defendant testified she purchased a Hummer H3 on or about September 1, 2017 (post commencement) for $14,890, she still has the vehicle. She bought an Audi in the summer of 2016 for $23,000. She had a BMW convertible in Florida which she sold in the spring of 2018 (post commencement), she alleges she did this as she could not afford the insurance on the BMW and plaintiff was no longer paying her insurance costs. She also stated she never told anybody she was selling the BMW. Defendant also had a 2009 Honda Pilot, she sold it to her son for a dollar without plaintiff's knowledge or permission after the action herein was commenced. Defendant posited it was her vehicle prior to the marriage and plaintiff wrecked it so it was not roadworthy. A 2016 Acura was purchased by the parties on October 27, 2015 for $51,263, cash (exh BB). The Acura was transferred to defendant's son for a dollar on August 15, 2017 (post commencement) without plaintiff's knowledge or consent. (see pp. 104-106, transcript 6/18/18).
When asked why she transferred the two vehicles to her son she answered that her son was stationed at Fort Drum and she gave him the 2009 Pilot to use, which he did until the vehicle "wasn't roadworthy" (p. 108, transcript 6/18/18).
In relation to the Acura defendant's testimony varied between her son needed the vehicle at Fort Drum and she wanted the vehicle to use herself when she was in the Syracuse area (pp. 108-112, transcript 6/18/18). Apparently the Acura sits idle at defendant's mother's house when defendant is in Florida (p. 109, transcript 6/18/18).
Regarding the hair salon: on cross examination defendant testified she ceased to be the operator of the business in December 2015, after discussions with plaintiff. She continues to own the property. It was pointed out that this testimony differs from her sworn net worth statement in which she stated she had discontinued as both owner and operator (pp. 112-113, transcript 6/18/18). Defendant also testified she is unable to return to work cutting hair due to being injured in a fall approximately two years before trial. She did not produce any documentation or medical testimony in support of her assertion (pp. 113-115, transcript 6/18/18). Little weight is given to defendant's testimony regarding her medical condition due to this lack of support ( Davis v. Davis , 175 AD2d 45,47 ).
It was pointed out to defendant that her tax return indicated gross sales of $41,396 in 2017 and $38,950 in 2016 yet she had testified she received no income from the hair salon. Her response was "I do not draw a salary. I do not get an income from that" ... her testimony then morphed into a net income of $11,000 for 2017 and $14,000 in 2016 (pp. 115-116, transcript 6/18/18). In ascertaining defendant's net income she was questioned regarding her charitable contributions: in particular a wedding dress for which she claimed a donor's cost of $6,750 with a fair market value of $1,350 (exhibit 12). When asked about the actual cost of the dress to her; whether it was actually $350 or around $1,000 or around $7,000, defendant testified it was around $1,000 (pp. 116-119, transcript 6/18/18).
Cross examination moved to defendant's application for pendente lite maintenance, she claimed as an expense a $2,100 monthly payment towards the mortgage on Kirkville Road. Her affidavit in support of her application was dated October 20, 2017, at the point in time the property was under contract for sale and actually sold in November 2017. In her affidavit defendant also stated she had no other source of income than that existing in her individual and business savings account (the latter account titled in the name of her LLC, the Eccellare Group). During cross examination defendant admitted she also was receiving $4,650 monthly from her rental properties, had moved $320,000 out of the parties joint checking account into her sole Schwab account, and in 2017 had $41,000 in gross sales at her business. Her explanation at trial for claiming she had no money to cover bills in her motion was she had been using the money she transferred from the joint accounts to cover bills and support herself as she has no income. (pp. 120-122, transcript 6/18/18).
Defendant testified that her shooting has suffered since her fall, contending she does not have a "range of motion to constant repetition of picking up again and getting hit with the gun" (p. 122, transcript 6/18/18). A competition day's program consists of three events, around 100 targets per event, 300 targets per day. She has walked away from competitions with her face and arms black and blue (p. 123, transcript 6/18/18). Defendant testified the most recent time she was black and blue was when she competed in our state shoot in March 2018, it was noted in testimony that this was subsequent to her fall and injury. In the March 23, 2018 event she won the women's championship scoring 99 percent (pp. 124-125, transcript 6/18/18).
In addition, defendant was confronted with exhibit 13, two flyers for trapshooting clinics in which she was described as the lead instructor conducted on December 2, 2017 and February 18, 2018. She admitted she put on these professional clinics, which had a $150 per shooter entrance fee (p. 125, transcript 6/18/18). When asked if she had shot over 5,000 targets in competition since the fall of 2017 defendant's response was "yes" (p. 126, transcript 6/18/18).
Defendant testified she has enrolled in a paralegal program, and as a Florida resident for over a year she receives a favorable tuition rate so she deferred starting classes to obtain the tuition benefit, she has apparently paid a deposit (pp. 125-127, transcript 6/18/18). She was questioned about whether she can perform the duties of a paralegal without full use of her hand. Her response was it's not her hand, it's the use of her arm and she does not "really see paralegals or anybody in an office situation doing this constant repetition." (p. 127, transcript 6/18/18).
Defendant was cross examined as whether she disposed of plaintiff's personal property. Her initial response was she gave him his property on July 31, 2017 when plaintiff came with the Manlius Town Police. She was then questioned specifically about plaintiff's firearms. She testified at first that she did not dispose of them. When then asked if she had pawned the guns at a local store, Ra-Lin's, defendant invoked the Fifth Amendment. Defendant's counsel indicated there are felony charges pending against defendant and objected to any questions being posed as to the guns. (pp. 128-129, transcript 6/18/18).
In a civil proceeding a witness may invoke their right to not give an answer which will tend to accuse them of a crime ( CPLR 4501 ), the privilege against self incrimination. However, an adverse inference may be drawn against them because of their failure to testify ( Marine Midland Bank v. Russo Produce Co. , 50 NY2d 31,42 ; Commissioner v. Philip De G. , 52 NY2d 137, 141; El-Dehdan v. El-Dehdan , 26 N.Y.3d 19, 37 ; see also Baxter v. Palmigiano , 425 U.S. 308, 318 ). The failure of defendant to testify does not permit the Court to speculate about what her testimony might have been nor does it require an adverse inference; but it allows the Court to draw the strongest inference against her on that issue that the opposing evidence in the record permits (Commissioner V. Philip De G , supra; citing Noce v. Kaufman , 2NY2d 347, 353; NY PJI 1:76 ).
The Court indicated it would take an adverse inference as to the number and value of the firearms, and noted there was one exhibit in evidence relating to guns (p. 129, transcript 6/18/18); upon review of the exhibit, it relates to defendant's guns, not plaintiff's.
Cross examination then moved to what happened to plaintiff's dog, it went as follows:
Q: You had the dog spayed against his permission, correct?
Defendant: I did not, no.
Q: You gave the dog away, didn't you?
Defendant: I found a very good home for him, yes.
Q: You gave the dog away, correct?
Defendant: Yes.
Q: Without his knowledge, right?
Defendant: He abandoned the dog, yes.
Q: And when did you give the dog away to somebody else?
Defendant: August.
Q: August, after the divorce was filed?
Defendant: Yes. (pp. 130-131, transcript 6/18/18).
In the final phase of cross examination defendant posited she felt unappreciated about doing things for plaintiff. The end of cross examination transpired as follows:
Q: Okay. When you got married, how old were you?
Defendant: 51.
Q: And how old was Ed?
Defendant: 69.
Q: Did you think he might need extra help than you would need?
Defendant: Yes, and I knew that when I married him.
Q: You knew that. You said that you had to cut his hair?
Defendant: Yes.
Q: And that annoyed you, you said.
Defendant: That what?
Q: That annoyed you, or that was something that you weren't happy that you had to do, was that?
Defendant: I wasn't unhappy that I had to do it. I was unappreciated for it.
Q: You were a hair stylist for 35 years, right?
Defendant: Yes.
Q: I'm sure his hair isn't the most difficult hair you were ever presented with?
Defendant: No. Let's go with no, yes.
Q: But, it was too much to ask of you?
Defendant: No, it was not too much to ask of me. I did these things willingly. No problem. And I knew that I was going to have to do these things willingly and no problem.
Q: Okay. Your testimony now is different than you had on our last date —
Defendant: Okay.
Q: — but you said you had your hair done, your nails done, everything for you was done?
Defendant: Yes.
Q: Okay. And he made sure those things were paid for, right?
Defendant: Well, of course they were paid for. Nobody was going to do them for free.
(pp. 131-133, transcript 6/18/18).
One of the philosophical underpinnings of current domestic relations law in New York is that marriage is an economic partnership ( Fields v. Fields , 15 N.Y.3d 158 ; Mahoney-Buntzman v. Buntzman , 12 N.Y.3d 415, 420 ).
In Mahoney-Buntzman v. Buntzman , 12NY 3d 415; the Court of Appeals posited a general rule, that where "payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. Nor should courts attempt to adjust for the fact that payments out of separate property may have benefitted both parties or even the non titled spouse exclusively. The parties' choice of how to spend funds during the course of the marriage should ordinarily be respected. Courts should not second-guess the economic decisions made during the course of the marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end." (Mahoney - Buntzman , supra, pp. 420-421). The essence of the Court of Appeals holding is that courts should not engage in the review of every debit and credit incurred over the course of the marriage.
In considering the "circumstances of the particular case" (Fields v. Fields . supra, 170) and Mahoney-Buntzman 's "no fraud or concealment" exception the Court views the case herein through a different lens than a typical contested divorce.
Equitable distribution does not necessarily mean equal distribution, ( Campbell v. Campbell , 149 A.D.3d 560, citing Arvantides v. Arvantides , 64 NY2d 1033 ; Groesbeck v. Groesbeck , 51 A.D.3d 722, Mula v. Mula , 131 A.D.3d 1296, 1301 ); Bellizzi v. Bellizzi , 107 A.D.3d 1361 ).
Trial courts have discretion which has been described as "substantial" ( Holterman v. Holterman , 3 N.Y.3d 1, 8 ); "considerable" ( Corbett v. Corbett , 6 A.D.3d 766 ); or "broad" ( Dechow v. Dechow , 161 A.D.3d 1584 ; Ferrel v. Ferrel , 132 A.D.3d 1421 ; Krolikowski v. Krolikowski , 110 A.D.3d 1449 ); in distributing the parties' marital property.
One basis for an unequal distribution of marital property is economic fault or misconduct by a party (Stewart v. Stewart , 133 A.D.3d 494; Azizo v. Azizo , 51 A.D.3d 438 ; Maharam v. Maharam , 245 AD2d 94 ; Davis v. Davis , 175 AD2d 45 ).
Egregious conduct which provides a basis for altering the economic partnership model has been described as consisting of "behavior that falls well outside the bounds of the basis for an ordinary divorce action. This is not to say that there can never be a situation where grounds for divorce and egregious conduct will overlap. However, it should be only a truly exceptional situation, due to outrageous or conscience-shocking conduct on the part of one spouse, that will require the court to consider whether to adjust the equitable distribution of the assets" ( Howard S. v. Lillian S. , 14 N.Y.3d 431, 436 ).
In considering the testimony of the parties in this nonjury proceeding the Court, as the trier of fact must evaluate the credibility of the witnesses and quality of the proof (Mosely v. State of New York , 150 A.D.3d 1659, 1660 ; Gerard v. Cahill , 149 A.D.3d 813, 814 -50 ; see also R.I. v. T.I. , 60 Misc 3d 1226(A) ).
In seeing and hearing the witnesses the Court finds plaintiff's testimony quite credible whereas defendant's testimony lacks credibility ( see Mercone v. Monroe County Deputy Sheriff's Association , 90 A.D.3d 1498, 1699, 1699 citing Sterling Investor Services v. 1155 NOBO Associates , 65 A.D.3d 1128, 1129 ; Storico Development v. Battle , 9 A.D.3d 908, 909 ; Ring v. State of New York , 8 A.D.3d 1057 ).
In Sykes v. Sykes , 35 Misc 3d 591 ; a court had before it a proceeding relating to a violation of the automatic orders triggered by the commencement of a divorce action. In its decision the court discussed the nature of dissipation, it posited: "Dissipation has a specialized meaning within the context of matrimonial law. It has often been characterized as having a nefarious or devious undertone carrying the implication that the party transferring the funds did so with the intent of impeding the economic rights of the other spouse and preventing the court from making a fair and equitable distribution of the marital estate. (See Blickstein v. Blickstein , 99 A.D.3d 287, 293(2d Dept) 1984; Hartog v. Hartog , 192 WL 695903 (Sup. Ct., NY County 192.) In some cases, the dissipation consists of the transfer of marital funds to a secret bank account (see e.g. Maharam v. Maharam , 245 AD2d 94 (1st Dept, 1997), or a spouse's use of marital property to pay for personal expenses and debts (see e.g. Dewell v. Dewell , 288 AD2d 252 (2d Dept 2001) ). In other cases, the dissipation takes the form of transfer of funds without fair consideration to third parties (see e.g. Davis v. Davis , 175 AD2d 45 (1st Dept 1991)" (Sykes , supra, 596).
In considering the testimony and documentary evidence presented in the case herein and described above, the Court does not see an economic partnership, it sees looting; described in legal terms as economic fault or egregious economic misconduct.
Real Property
Defendant has two parcels of real property which are separate property; East Taft Road, East Syracuse, New York and North Burdick Street, East Syracuse, New York. Marital funds were used towards repairs on these properties however they maintain their character as premarital separate property. These separate properties remain defendant's.
Kirkville Road was the premarital separate property of defendant after the parties marriage it became the marital residence, but retained its character as separate property. Improvements to and mortgage payments on this property were made with marital funds. The Catherine Barney Irrevocable Trust sold the Kirkville Road property to one Thomas Gallery on November 30, 2017 for the sum of $270,000. A review of testimony and of exhibit L (the statement of sale and related documents) it appears that at the time of sale two mortgages were due, one in the amount of $213,238 and a second in the amount of $110,42. The result of this was the seller (defendant herein) owing $72,046 at the time of closing. Said amount was paid by defendant with marital funds by check number 1011 drawn on defendant's Schwab checking account (see exhibit L), this sale occurred during the pendency of the action in violation of the automatic orders.
Two parcels of real property are marital; Lueck Lane, Liverpool, New York and Cavalier Street, Palm Bay, Florida. Neither property is encumbered by a mortgage.
The Court directs that Lueck Lane, which is being used as a rental property be sold and the net proceeds divided evenly (50%/50%) after payment of taxes, accounting of rents, repairs and closing costs. Defendant is to quitclaim her interest (or her LLC is to do so) to plaintiff within 20 days of this decision and plaintiff will be responsible for collection of rents, repairs and maintenance until the property is sold. The only testimony as to the value of Lueck Lane was an assessed value of $147,000 (p. 61, transcript 6/18/18). In the absence of an agreed upon listing price between the parties, Lueck Lane is to be listed with a MLS agent at the price of $147,000, if it is not sold within six months the listing price shall be reduced by 10%, if it still is not sold this reduction procedure shall be repeated every six months.
Regarding Cavalier Street: the Court directs the following: Defendant is to quitclaim her interest in this property to plaintiff within 20 days. Defendant is to remove the lien she placed upon the property immediately and encumber the property no further. Defendant is to vacate Cavalier Street within 45 days of this decision, she may remove her personal effects, such as clothing, toiletries, guns, family pictures and furniture; however, she is to leave in an intact state all appliances and fixtures, she is to leave the property in a habitable condition, "broom clean" as is sometimes used in the vernacular of landlord-tenant law. Plaintiff testified he believed Cavalier Street was intended to be a vacation home. Defendant testified she thought the property was an investment, to be rented. It appears the only person who ever rented it, for ten weeks, for $3,000, was defendant's son. Cavalier Street was purchased for cash in the amount of $370,000 with the funds coming from a joint account, marital funds. However, the Court notes this joint account was funded with approximately $4,400 of defendant's premarital money and hundreds of thousands of dollars from plaintiff's premarital accounts and the proceeds ($270,000) from the sale of his premarital home at, Lake Grove, New York.
Defendant's conduct regarding Cavalier Street is reprehensible and the Court finds it to be egregious economic misconduct to a degree which shocks the conscience, during the pendency of the action, in violation of the automatic orders, defendant breached her fiduciary duty as a power of attorney by transferring by power of attorney Cavalier Street from both parties to herself alone, without knowledge of or notice to plaintiff; and in addition filed a fraudulent lien against the property. Plaintiff is awarded 100 percent of Cavalier Street.
Plaintiff had two parcels of separate property, East Setauket, New York and a parcel in Maine both were transferred to his son within a week after commencement of the action in June 2017. This technically violated the automatic orders, plaintiff testified the transactions were in progress prior to the commencement of the action. No further evidence was adduced regarding these separate properties of plaintiff, which remains his (or his son's).
Savings/Checking Accounts
The parties had three joint accounts with Chase ending in 9327, 7356 and 1262 (exhibit M). Account 9327 was opened with deposits by defendant of $2,200 on November 27, 2017 and plaintiff of $339,564 on December 8, 2017 (exhibit B). Other deposits were made over the course of the marriage, primarily out of the conversion of plaintiff's separate funds. The main account used by the parties appears to be the 9327 account.
Defendant surreptitiously withdrew $320,000 from the 9327 account in a series of transactions (see 30-31 infra) and deposited the funds into Schwab accounts in her name only. Defendant claims to have $150,000 in a Schwab investment account as of trial and the remainder of the $320,000 was spent on marital bills; testimony indicated much of it was spent on repairs and improvements to defendant's separate property.
Exhibit B indicates on March 4, 2016 Chase account 9327 contained $512,524, account 7356 contained $17,362 and account 1262 contained $40,246 (a total of $570,134); this was overwhelmingly funded by transfers from plaintiff's separate assets. On June 5, 2017 near the eve of the instant action's commencement exhibit M shows balances of $1,526 for account 9327, $5,184 for account 7356 and $44,440 for account 1262 (a total of $51,153).
No testimony was adduced at trial as to the current value of the three joint Chase accounts. Exhibit GG, defendant's statement of net worth dated September 18, 2017 sets forth balances of $50 for 9327, $478 for 7356 and $188 for 1262. Plaintiff's net worth statement dated August 17, 2017, contained in the court's file and of which it takes judicial notice, reflects August 2, 2017 balances of $250 for 9327, $504 for 7356 and 55 cents for 1262 (total of $754.55). To the extent anything remains in these accounts, 100 percent of these accounts are awarded to plaintiff, the accounts should then be closed.
Defendant has a Berkshire Bank "business" savings account ending in 4114 titled to the Eccellare Group with a value of $7,500 and a Schwab "business" savings account titled to the Eccellare Group with a value of $43,000 according to her net worth statement. At trial defendant testified she has a "business" account containing about $2,000 and a "property" account containing about $5,000 (p. 29, infra). Defendant is awarded 100 percent of these two accounts titled to the Eccellare Group. Plaintiff had a checking account prior to the marriage but closed it and moved the funds into the joint Chase account (p. 7, infra and see also exhibit N).
Investment Accounts
Exhibit W is a summary of plaintiff's UBS portfolio, it indicates a November 30, 2015 value of $825,644. Exhibit X is a similar summary, but dated June 30, 2017 indicating a value of $1,009,625. Defendant argues she is entitled to one half of this $183,981 growth in plaintiff's UBS portfolio, an amount of approximately $91,990. The Court disagrees. Plaintiff testified credibly that much of the increase should be attributed to his consolidating $75,000 from his Trade Station account and $49,000 from his SEP account, a total of $124,000 (p. 7, infra). The Court has also considered the economic misconduct of defendant in this determination, her devious transfer of $320,000 from a joint account to her sole account and her nefarious transfer of 223 Cavalier Street from both parties names to solely her own. The Court finds defendant's direct and indirect contributions to be minimalist, one basis for this finding being the court's finding of the defendant's lack of credibility in her testimony. The Court declines to award defendant any portion of the UBS portfolio. Plaintiff is awarded 100 percent of his UBS portfolio.
During the marriage defendant opened investment accounts with Schwab these are reflected in exhibit KK which evidences four accounts and their respective market values as of May 8, 2018; accounts ending in 4587 ($101,961), in 9703 ($5,851), in 4907 ($5,851), and in 5392 ($15,707). The aggregate of these accounts is $129,370.
Defendant testified she opened these accounts with a $6,500 deposit from her business or personal accounts in the spring of 2016 and did not put any money into them after the spring of 2017. These accounts grew largely through deposits of marital funds from the joint Chase account which originated from plaintiff's premarital accounts (infra, pp. 21-22). The funds in the Schwab accounts are marital property. At trial defendant's testimony was her Schwab investment account contained about $150,000 (infra, p. 29). In her statement of net worth defendant set forth a value of $200,000 in a Schwab mutual fund titled to her, allegedly funded by savings and wages (exh GG). The Court finds the value of the investment accounts titled in defendant's name to be $129,370 set forth in exhibit KK. As plaintiff has been awarded 100 percent of his investment accounts, defendant will be awarded 100 percent of investment accounts titled to her.
Vehicles
Defendant purchased a Hummer H3 on or about September 1, 2017 (post commencement) for $14,890; and purchased an Audi in the summer of 2016 for $23,000 (infra, p. 37). She still possesses both of these vehicles at this time, these vehicles were purchased with marital funds and are marital property. Defendant is awarded the Hummer and the Audi. Defendant came into the marriage with a 2009 Honda Pilot which she sold to her son for a dollar post commencement. The Court is not concerned with this vehicle which appears nearly valueless.
The parties purchased a 2016 Acura MDX for $51,163 on October 27, 2015 just over two weeks prior to the marriage (exh BB). The Acura was in both names with the purchase being made with plaintiff's separate funds. The Court will treat the Acura as marital property. Both parties have indicated they wish to have the Acura. No testimony was presented at trial regarding the current value of the Acura. The sole assessment of value available to the Court is contained in plaintiff's statement of net worth dated August 17, 2017 contained in the Court's own file, which it takes judicial notice of, the net worth statement describes purchase price as $51,000 and the date of commencement value as $41,050.
The Acura was transferred by defendant to her son without consideration for this transfer. Plaintiff is entitled to half the value of this marital asset ( Cooper v. Cooper , 52 A.D.3d 429 ). As defendant testified she drives the Acura when she is in the Syracuse area and it sits unused when she is not (infra, p. 38); the Court perceives the transfer of the Acura to her son as a sham. Defendant is to pay the sum of $20,525 to plaintiff within 45 days of this decision as and for his marital share of the Acura.
Plaintiff testified at trial he currently drives a 2017 Jeep Patriot purchased in October 2017 (post commencement) and also has a 2005 Jeep Cherokee, which his statement of net worth indicates was obtained in October 2016. Plaintiff is awarded both of these Jeeps.
A 2004 BMW 325 convertible was purchased during the marriage and sold by defendant in the spring of 2018 (infra, pp. 9, 37). According to plaintiff's testimony the BMW was purchased for $6,500 (p. 85, transcript 6/18/18) and according to defendant's net worth statement its fair market value was $6,500. No testimony or documentary evidence was presented at trial as to the sale price of the BMW from defendant to an unnamed purchaser. Plaintiff is entitled to one half the value of this asset dissipated by defendant, accordingly defendant is directed to pay the sum of $3,250 to plaintiff within 60 days as and for his marital share of the BMW.
Personal Property
As stated above defendant may keep her personal items such as clothing, toiletries, jewelry and furniture when she vacates the Cavalier Street property. She is to leave behind all fixtures and appliances. The firearms listed in exhibit LL are defendant's separate property and she retains exclusive use, possession and title to them.
Plaintiff set forth a list of personal property he seeks in exhibit QQ. He indicates these items were left behind by him at Kirkville Road, a piece of real property which we know has been sold through testimony and documentary evidence. If the defendant has retained control and dominion over any of the items set forth in exhibit QQ she is to turn over said items to plaintiff within 15 days of this decision. The Court notes testimony by defendant that the dog, a Labrador Retriever, was disposed of by her transfer of the animal to a third party.
Plaintiff is awarded all personal property currently in his possession, including the contents of Old Post Road, East Setauket New York.
In regard to the missing guns of plaintiff which he alleges defendant pawned off, which are the subject of a criminal investigation, and which defendant invoked the fifth amendment with regard to when questioned at trial: Plaintiff testified at trial (54) fifty four guns were gone. Plaintiff attached a list of (60) sixty guns to his statement of net worth. However, no evidence was introduced as to the value of these firearms. Although, the Court can, and has made an adverse inference from defendant's fifth amendment invocation, the Court cannot speculate. The Court finds a failure of proof as to the value of the firearms and is unable to make any monetary distributive award relating to the firearms.
Counsel Fees
The award of counsel fees is a discretionary matter for the Court; which is aware of the rebuttable presumption contained in DRL 237(a) that counsel fees shall be awarded to the less monied spouse. The Court previously awarded $5,000 in counsel fees to defendant. The Court declines to make any further award of counsel fees. As posited above the Court looks at this nineteen month marriage and perceives not an economic partnership, but instead a looting. Each party shall be responsible or their own attorney's fees.
In determining an equitable distribution of property, the Court has considered all relevant testimony and exhibits, and the (14) fourteen factors mandated in DRL 236. The most salient facts in this case relate to the transfer of hundreds of thousands of dollars of assets of plaintiff's premarital separate property into jointly held assets in this short term marriage having then been secretly converted into accounts and property held solely in defendant's name. The Court finds a complete lack of credibility on the part of defendant as to the reasons for and circumstances surrounding these transfers to her sole name.
CONCLUSIONS OF LAW
A. That jurisdiction as required by Section 230 of the Domestic Relations Law has been obtained.
B. Plaintiff is entitled to a Judgment of Divorce pursuant to DRL 170(7) on the grounds that the marital relationship between the parties has been irretrievably broken for a period of six months or more.
C. DRL 253 has been complied with.
D. DRL 255 has been complied with.
E. Equitable Distribution and maintenance shall be in accordance with the findings above.
F. Each party shall be permitted to resume the use of any pre-marriage surname.
G. All future matters relating to enforcement, modification or interpretation of the judgment to be filed in this proceeding, with the exception of issues relating to equitable distribution, shall be referred to the appropriate Family Court. Future matters shall be filed in the county in which a party resides, except for good cause, shown by motion or order to show cause. The parties shall execute all documents necessary to transfer title to real estate and to comply with any other distribution pursuant to the Court's decision.
Plaintiff to submit judgment on notice.