Opinion
*****/16
03-19-2019
G.S., Part MP11, Plaintiff, v. B.S., Defendant.
For Plaintiff: Lloyd Thompson Esq., 2110 Clove Road, Staten Island, New York 10301 For Defendant on the Issues of Parenting ONLY: Erin Colgan Esq., 235 Forest Ave, Staten Island, New York 10301 Attorney for the Children, Scott Schwartz Esq., 36 Richmond Terrace, Staten Island, New York 10301
For Plaintiff: Lloyd Thompson Esq., 2110 Clove Road, Staten Island, New York 10301
For Defendant on the Issues of Parenting ONLY: Erin Colgan Esq., 235 Forest Ave, Staten Island, New York 10301
Attorney for the Children, Scott Schwartz Esq., 36 Richmond Terrace, Staten Island, New York 10301
Catherine M. DiDomenico, J.
Procedural History
By Summons and Complaint filed on June 13, 2016, Plaintiff Husband, G. S. (hereinafter "Husband") commenced this action for divorce against Defendant Wife, B. S. (hereinafter "Wife"). Wife filed an Answer with Counterclaims on or about November 16, 2016. Husband replied to Wife's counterclaims on November 25, 2016.
The parties were married on June 2, 1990 in Richmond County. There are three children of this marriage: G. Jr. (d.o.b. */**/98), N. S. (d.o.b. **/**/01) and V. S. (d.o.b. */**/03). The Court notes that N.S. and V.S. are the only children subject to this Court's jurisdiction for the purposes of adjudicating custody and parental access. G. Jr. remains under this Court's jurisdiction for the purposes of child support.
By Short Form Order dated August 19, 2016, this Court ordered that the children reside with Husband, pendente lite, and that Wife vacate the former marital residence located at 90 R. Drive, Staten Island, New York (the "marital home"). At that time, Wife was residing in the home with a person named Virginia M. The nature of Wife's friendship with Ms. M. was never explained to this Court other than the fact that they met online. After requesting and receiving extensions of time to vacate from this Court, Wife moved out of the marital home on September 6, 2016 into a home then owned by her mother. All three children have continued to reside with Husband in the marital home from that date.
By Petition dated March 17, 2016, Wife commenced a Family Offense proceeding against Husband (O-1134-16). Wife alleged, among other things, that on March 17, 2015 Husband was verbally abusive and destroyed deck furniture in a fit of anger. Family Court granted Wife a "usual terms" Temporary Order of Protection which ordered Husband not to commit a specified family offense or other unlawful act against Wife, but which did not exclude Husband from the marital home. (See Order 7/7/16, Hamanjian, J.)
The date of this incident was a point of contention during trial, Wife at times indicated that the event took place in 2015 and other times she claimed in took place in 2016.
By Petition dated April 21, 2016, Husband commenced a Family Offense Proceeding against Wife (O-1605/16). Husband alleged, among other things, that Wife punched him multiple times in the face and head, threatened to kill him, and has been verbally and physically abusive to him in the past due to untreated mental illness. Husband further alleged that Wife was addicted to Facebook and attempted to get her "friends" to commit acts of violence against him. He also claimed that Wife threatened to call the police on him and get him arrested on false charges. Family Court granted Wife a "usual terms" Temporary Order of Protection which ordered Wife not to commit a specified family offense or other unlawful act against Husband, but which did not exclude her from the marital home.
On or about May 3, 2016, Husband was arrested and charged with Criminal Contempt in the Second Degree, Criminal Obstruction of Breathing, and Harassment in the Second Degree. These charges stemmed from a mutual argument that ensued between the parties that date. Wife was the complaining witness. At arraignment, Husband was excluded from the marital home leaving the children in Wife's care. Upon his release, Husband went to Family Court and asked that Court to ensure the safety of his children while he remained excluded. He claimed Wife made a false complaint to get him arrested in an attempt to get Criminal Court to exclude him from the home, something she could not persuade the Family Court to do. Husband's criminal case was transferred into this Integrated Domestic Violence Part ("IDV") on or about July 12, 2016. On January 25, 2017, Husband was granted an adjournment in contemplation of dismissal ("ACD") in his criminal case. A one-year "full stay away" temporary order of protection was granted in favor of Wife during that adjournment period. This order expired on January 24, 2018. Husband's criminal matter has since been sealed.
On May 3, 2016, the same day Husband was arrested, Wife was also arrested for charges stemming from the same incident indicated above (40048-2016). She was charged with Criminal Contempt in the Second Degree and Harassment in the Second Degree. Husband was the complaining witness. This matter was transferred into this IDV Court on or about July 12, 2016 and was dismissed on its first appearance on September 27, 2016. Husband refused to cooperate with the prosecutor and the matter was dismissed pursuant to CPL § 30.30 on Defendant's motion.
By Order dated July 12, 2016, both parties' Family Offense Petitions were transferred into this IDV Court. After review of both petitions, and hearing from the parties, this Court expanded both parties' Temporary Orders of Protection to include full stay away provisions and prohibitions against communication subject to orders of this Court regarding issues of custody and visitation.
On August 18, 2016, after a hearing, this Court restored Husband and the three children back to the marital home and granted him exclusive use and occupancy. (See Jud. Not. 9). Wife was granted time and funds from Husband to vacate to her mother's home or any other location of her choosing. Wife was also granted "liberal visitation" with the subject children with a schedule to be agreed upon through all counsel. Given the advanced ages of the children, the children's wishes were to be of "paramount concern" when devising their parental access schedule.
When this matrimonial action was commenced, Husband was represented by Thaniel J. Beinert Esq. On or about November 7, 2016, that firm was substituted as counsel, on consent, and replaced by Mr. Lloyd Thomson Esq. Mr. Thompson represented Husband throughout this trial. Wife was initially represented by Ms. Angela Conte Esq., a court appointed lawyer assigned to represent Wife on the custody, visitation, and family offense aspects of this divorce. On November 7, 2016, Ms. Conte was substituted by retained counsel, Mr. Jay Baum Esq.
On or about December 13, 2017, Mr. Baum filed an Order to Show Cause requesting the appointment of a Guardian Ad Litem ("G.A.L.") for Wife, or in the alternative, to withdraw as her counsel. Mr. Baum argued that the attorney-client relationship had broken down and that Wife's lack of cooperation made her unable to protect her own interests. Wife objected to the appointment of a G.A.L. but consented to Mr. Baum's withdrawal, and agreed to grant a charging lien in the amount of $ 31,253.08 . (Jud. Not. 7). After Mr. Baum's withdrawal, Wife was granted a second court appointed attorney to represent her on the issues of custody, visitation and family offense. Ms. Erin Colgan Esq. represented Wife on these issues throughout trial. Wife remained self-represented on all financial issues. The two children subject to this Court's custody jurisdiction were represented by Mr. Scott Schwartz Esq., throughout this case.
By Order dated November 7, 2016, Dr. N.G. Berrill was appointed on consent to conduct a forensic evaluation pursuant to Judiciary Law § 722(c). After interviewing the parties, and the subject children, Dr. Berrill issued a written report on October 27, 2017. This report was received into evidence during Dr. Berrill's trial testimony on March 26, 2018 (Pl. Ex. 6). Dr. Berrill's recommendations and findings were considered by this Court in making its decision as explained more fully below.
The Trial
The parties' claims for custody, parental access, family offense, maintenance, child support, and equitable distribution were tried before this Court on January 18, 2018, January 24, 2018, March 26, 2018, and July 9, 2018. Husband testified on his own behalf and called Dr. Berrill as a witness. Husband introduced documents into evidence (PL. Ex.1-6). Wife testified on her own behalf and introduced a Statement of Net Worth into evidence (Def. Ex A). All counsel submitted questions to be considered by this Court at the in-camera examinations of N.S. and V.S. which were held on August 2, 2018. The transcripts of the in camera examinations have been sealed by this Court. In addition to the trial claims in this case, all unresolved claims for relief contained in motion sequence numbers 001, 004, 006, and 007 were referred to this trial.
Written summations were filed by all parties at the close of the trial record. As Wife was self-represented on financial issues, she submitted two summations, one prepared by her attorney on parenting issues and family offense, and a second prepared herself. Upon review, Wife's Pro Se submission included various factual allegations that were not contained in the trial record. This Court has limited its review of Wife's summation to the issues and claims that were addressed at trial. A summation after trial is not a proper vehicle to offer new evidence or raise claims that were not addressed during trial. See S.Z. v. B.V. , 58 Misc 3d 1206(A) (Sup. Ct. Rich. Cty. 2017) .
As Wife was self-represented for the financial aspects of her case, she was granted some latitude by this Court relating to the form and substance of her questions, responses and written submissions. See Wells Fargo Bank, N.A. v. Erobobo , 127 AD3d 1176 (2d Dept. 2015) ; See also, Matter of Stephen W. v. Christina X. , 80 AD3d 1083 (3rd Dept. 2011) . Notwithstanding multiple allowances, Wife's testimony was disjointed and evasive, with numerous responses of "I'm not going to answer that," "I don't want to answer that," or "why does that matter?" Husband's testimony was also evasive at times. For example, even with the benefit of trial counsel, Husband offered, self-serving ramblings about his Wife's alleged infidelity, regardless of the question posed to him. (e.g. Tr. 3/25/18 pg.86).
See e.g. Tr. 1/24/18 pg.46.
Tr. 1/24/18 pg. 53.
Factual Findings
A. Plaintiff Husband
Plaintiff Husband is 60 years old. He never graduated high school nor secured a GED. Husband has been disabled for the past four years due to an accidental injury to his spine and knee. Husband's sole source of income is social security disability benefits that have been granted to him in the amount of $ 1,085 (gross) per month. Derivative benefits for Nicolas and V.S. are also received in connection with Husband's disability designation. During trial, Wife claimed that she was no longer receiving her derivative benefit for reasons unknown to either party. Wife indicated that she was going to "take care of it" with the Social Security Administration. Prior to his disability, Husband worked as a mason and landscaper. While Husband primarily worked for his late brother, A. S., he also conducted "side work" for himself under the business name "Vintage Landscaping" or "Vintage Grass Cutters."
Plaintiff Husband and Defendant Wife were married on June 2, 1990 when Wife was 17 years old and Husband was 25 years old. They separated in March of 2015. When the children were young, Husband worked outside the home but was still involved in the lives of the children, particularly N.S. Before the parties' relationship turned contentious, Wife was the primary caretaker of the children. Wife worked on and off during the early years of the marriage but has not worked outside the home since the birth of their first child in 1998. Contrary to Wife's claims, there is no evidence in the record that Husband ever prevented her from working outside the home, or that she is incapable of obtaining employment. Rather, Husband credibly testified that Wife was capable of working, but steadfastly refused to do so, causing tremendous friction in their marriage. Arguments involving Wife's lack of employment increased after Husband was unable to work due to his injuries.
Husband testified he loves Wife and did not want the marriage to end. However, their relationship changed with the advent of social media. Wife started becoming "friends" with men online, which caused the steady demise of the marriage. Once Wife "got on Facebook" in 2015, she lost all interest in the home, the children and their marriage. She was "obsessed" with Facebook and constantly focused on her telephone and the internet to the detriment of her family. She sought and received a lot of attention from men online. Husband became very concerned when he discovered that the men she "met" were using her claims of marital discord to open "go fund me" accounts.
Fueled by anger and jealously, Husband allowed his daughter to surreptitiously secure her mother's Facebook password. Husband then searched Wife's Facebook account and found pictures and text messages from men Wife was conversing with online. Husband also found sexually graphic pictures that were sent to Wife, and her responsive comments. Husband also discovered that Wife told her online associations that she was being mentally and physically abused by Husband. This prompted at least one male Facebook friend to threaten to come to the house and assault Husband in a misguided attempt to save Wife from her plight.
Ultimately, Husband created a fake Facebook account in the phony name of "Tony Gallo" and messaged his Wife, incognito. He sent Wife romantic messages which she responded to not realizing that they originated from Husband. Husband claims he was concerned for Wife's safety as she was meeting strangers online. However, he admitted his actions were also fueled by jealously. After surreptitiously interacting with Wife online, Husband again begged Wife to stop using Facebook and to stop confiding in strangers. Wife initially indicated that she would cease using Facebook, however, she quickly returned to her account.
Husband told the Forensic Evaluator, Dr. N.G. Berrill, that Facebook was not the only time Wife engaged in inappropriate extra-marital conduct. Dr. Berrill testified that he was told about intimate letters written by Wife to her dentist, however these letters were not offered as evidence at trial. Husband claims that Wife is a "pathological liar" and has become addicted to the attention she receives online. Husband believes Wife is in need of psychiatric services, a recommendation that is shared by Dr. Berrill.
Husband denies that he was physically or mentally abusive to Wife. He admits that the parties' arguments frequently became heated. Husband further admits that, during the course of one such argument, he "punched a wall" leaving a "tiny hole" which he believes led to the arrest discussed above. Husband testified that to the contrary, he was a victim of physical violence and mental abuse perpetrated by Wife. Husband alleged that Wife punched him in the eye on at least one occasion, slapped him, and constantly threw things at him throughout the marriage.
Since September of 2016, Husband has been responsible for the care of the subject children with no financial support or assistance from Wife. He cooks meals for the subject children every day and drives them to their numerous activities. He is also a coach on N.S.'s baseball team and is very involved in N.S.'s attempts to secure a college athletic scholarship. Wife has not had much involvement with the subject children since her relocation from the marital home. However, she clearly has exhibited a desire to resume her relationship with the children.
Husband seeks an award of sole custody in this proceeding. He does not believe that "joint custody" could work between these parties given the high amount of conflict and distrust between them, the volatility of their interactions, and the cross allegations of domestic violence. Husband is willing to support any visitation his children will agree to, as he believes that their wishes regarding visitation should be honored given their respective ages (17 & 15).
B. Defendant Wife.
Defendant Wife is 52 years old. She graduated from high school. Despite having achieved a higher level of education than Husband, Wife has not worked outside the home for many years. Wife claims that her last employment was related to "assisting prisoners and the elderly," although the details of that employment were unexplained. Wife claims that Husband refused to allow her to work during the marriage. However, this allegation is not credible in light of Husband's credible testimony that he begged Wife to help out financially. Wife is currently involved with at least one online business venture, but the trial record is devoid of details. When asked about her future plans, Wife indicated that she intends to go back to school, and that she will use internet to become an "advocate for the voiceless" (Tr. 7/9/18 pg. 82).
Wife testified that the marriage was "toxic" and that Husband treated her terribly by abusing her "physically and mentally." According to Wife, Husband drank alcohol excessively and became aggressive and violent when intoxicated. Husband denies that he drinks alcohol at all. There is no evidence in the record to support the allegation that Husband abuses alcohol.
Wife claims Husband is a poor role model for the children due to, among other inappropriate conduct, his racist tirades against certain groups. She also testified that Husband was jealous of her ability to make Facebook friends and accused her of having affairs with men she met online. She testified that Husband brainwashed the children. She claims he showed V.S. pictures of male genitalia and said it was from her Facebook account. She claims that Husband neglects the children's medical and dental needs and is not suited to raise a 15-year-old daughter. Wife also claims that Husband is hiding income earned from an ongoing landscaping and snow removal businesses. She also believes that Husband's disability claim is fraudulent.
On the subject of Facebook, which dominated much of both parties' trial testimony, Wife admits she is very active with social media and claims that the connections she made through Facebook "saved her life." Wife testified that she "meets" people from all over the world who provide financial and emotional support, and gifts. Wife also claims that she utilized Facebook to start a business venture, although her testimony on the subject was vague and inconsistent.
Wife denies that she was ever romantically involved with any of the male friends she met online. However, this testimony was not credible. While Husband failed to prove any physical relationship between Wife and any of her Facebook friends, Wife developed romantic relationships online during the course of her marriage that included the exchange of graphic images. Clearly, some of Wife's online activity was clearly misguided and dangerous. For example, Wife was talking to men who offered to assault Husband. To this end, Wife sent a picture of Husband and the subject child V.S. to this stranger, so he could know who to assault. (Tr. 3/26/18 pg. 50).
Wife told Dr. Berrill she was seeking sole custody of the children. However, in her Summation, an order of joint legal custody of N.S. and V.S. is sought with residential custody remaining with Husband. Wife also requests an award of visitation which would permit her to "visit with the children according to their school schedule" (Summation, p. 3). She also seeks access to the children's school and medical records, information regarding their extracurricular activities, scholastic, and athletic events. She also seeks unfettered telephone contact, texting and Skype access to the children. However, Wife admitted at trial that she has always had access to the children's academic and medical records and that she is able to call and text them without interference from Husband.
C. Subject Children.
The subject children were interviewed in camera by this Court. N.S. is currently 17 years old and V.S. is currently 15 years old. They present with no special needs. The subject children have lived with their father since Wife was ordered to vacate the marital home. Their academic performance has been improving during their time spend in the custody of Husband. The subject children love both of their parents. They speak with their mother frequently by text and telephone but only see her sporadically. The preferences of the children and their positions with respect to both parents are preserved in the in-camera transcript which has been given serious consideration by this Court given their advanced ages. Their attorney has advocated that they remain living in the care and custody of their father and with their older sibling G. Jr who also resides in the former marital home. The children would like Husband to purchase Wife's interest in the marital home so they can continue to reside there together.
Grounds for Divorce
In his Verified Summons and Complaint, Husband requests a divorce on the ground that the parties' marriage has broken down irretrievably for a period of six months pursuant to DRL § 170(7). (Jud. Not. 1). Wife's Verified Answer admits that the parties' marriage has broken down irretrievably and requests the same relief. (Jud. Not. 2). The parties entered into a Preliminary Conference Order on June 30, 2016 wherein both parties agreed that the issue of grounds was resolved pursuant to DRL § 170(7).
Family Offense
Both parties allege incidents of violent and inappropriate conduct towards the other. Husband testified in support of his Family Offense Petition that, on April 18, 2016 at the marital residence, Wife punched him in the eye with her closed fist and cellular telephone, resulting in a black eye. (Tr. 3/16/18 pg. 44). Husband further testified that Wife frequently threw things at him and solicited the men that she met online to do him bodily harm. Wife testified that on or about March 17, 2016, in a fit of rage, Husband broke the coffee table, screamed racial obscenities and tried to choke her. In addition to this particular incident, Wife claimed to have suffered years of verbal and emotional abuse by Husband. Husband denied any history of physical abuse against Wife, although he admitted that the parties frequently argued.
Wife initially testified that the event occurred in March of 2016, but she then modified her testimony after reviewing her Family Offense Petition to indicated that it could have been 2015. Wife's Family Offense Petition indicates an incident date of 2015, however the Petition was filed in March of 2016.
Both parties credibly testified that their relationship deteriorated further after Wife discovered Facebook. Both parties continue to harbor strong negative feelings for one another. While Husband testified that he still loves his Wife, he is furious at what he perceived to be marital infidelity. Wife harbors considerable anger towards Husband who she views as a liar and a bigot.
After considering the testimony of each party, this Court finds that they both failed to meet their respective burdens of proof to establish that either committed a specified family offense against the other. See FCA § 821(a) ; See also, London v. Blazer , 2 AD3d 860 (2d Dept. 2003) . The verbal disputes between the parties were heated, but they do not rise to the level of a Family Offense. As for claims of violent conduct, both parties were unsure of the dates and/or details of the alleged events and their testimony was often self-contradictory. Moreover, each party failed to offer any evidence whatsoever to support their claims aside from their uncompelling testimony. For example, while Husband testified that he had pictures of his black eye, no such pictures were offered into evidence. Husband also testified that he is not afraid of his Wife. (Tr. 3/26/18 pg. 109).
As both parties failed to establish their claims by a fair preponderance of the evidence, those claims are hereby dismissed on their merits. See Matter of Jordan v. Verni , 139 AD3d 1067 (2d Dept. 2016) . Moreover, the Court notes that cross Temporary Orders of Protection have been in effect since at least June of 2016. There have been no allegations of violations of the temporary orders by either party. For these reasons, this Court dismisses the parties' cross Family Offense Petitions for failure to meet the applicable burden of proof, and declines to issue a Final Order of Protection in favor of either party. The Temporary Orders of Protection which are now in effect are hereby vacated as the underlying claims have not been proven at trial.
Custody/Parental Access
Both parents seek custody of the children N.S. and V.S. At trial, both parties attempted to show that they were the more fit custodial parent for the subject children. To this end, both parties testified to a litany of events that occurred during the course of their relationship and throughout this litigation. Many of these incidents were not critical to this Court's determination of custody and parental access. Rather than dignify each and every incident between the parties, this Court discusses herein only those significant findings of fact that weighed most heavily in this Decision.
When determining an appropriate custodial arrangement, the primary concern for the Court is the best interests of the children. See Matter of Islam v. Lee , 115 AD3d 952 (2d Dept. 2014) . There is "no prima facie right to custody of the child in either parent." DRL § 70[a] ; DRL § 240 [1][a]. When determining custody, the Court must consider the "totality of the circumstances" including the relative fitness of the parties and quality of their home environments. See Matter of Blanc v. Larcher , 11 AD3d 458 (2d Dept. 2004) . Factors to be considered include "the quality of the home environment, the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent." See Salvatore v. Salvatore , 68 AD3d 966 (2d Dept. 2009) ; See also, McGovern v. Lynch, 62 AD3d 712 (2d Dept. 2009) . The preferences of the subject children, while not determinative, are another factor to be considered by the Court. See Matter of Xiomara M. v. Robert M. , 102 AD3d 581 (1st Dept. 2013) . The weight to be afforded to each of the various factors is within the discretion of the trial court and requires an evaluation of the testimony, character and sincerity of all of the parties involved. See Bourne v. Bristow, 66 AD3d 621 (2d Dept. 2009) .
Despite Wife's request in her summation for "joint custody," a final award of joint custody is not a viable option where, as here, the relationship between the parties is too volatile and acrimonious to support such an arrangement. See Bliss on behalf of Ach v. Ach , 56 NY2d 995 (1982) . Joint custody is inappropriate where the parties are antagonistic towards one another and have demonstrated an inability to cooperate and co-parent on matters concerning the child. See Matter of Lawrence v. Davidson , 109 AD3d 826 (2d Dept. 2013). Accordingly, the Court is faced with the difficult determination of which parent is the more suitable custodial resource for N.S. and V.S. In making this determination in this case, the Court has considered a number of factors, as detailed below.
General Fitness to Parent
Both parents here are capable of caring for these children on a basic level. Neither parent has been the subject of any child protective proceedings, nor credible allegations of abuse or neglect. Neither parent has a physical or a diagnosed mental limitation that would render them unfit solely on that basis, although the forensic evaluator in this case testified that Wife would benefit from mental health services.
While Wife has considerable concerns regarding Husband's treatment of her, and the alleged effect that treatment has had on the children, she has not raised any significant concerns about Husband's general ability to parent. Wife believes that Husband is less capable of mentoring his daughter during her teenage years, but she has not alleged that her daughter is unsafe in Husband's care. Wife also claims that the children are not up to date with their medical care, but this allegation was not supported by the trial record.
Husband believes that Wife loves the children but contends that her obsession with social media destroyed the family and changed her personality. As a result, she ignored the needs of the children to focus on her online life. Husband also argues, and Wife admits, that her current housing situation is not suitable for the subject children, as she claims to have intermittent heat and no hot water. However, Husband contends that Wife's claims of substandard housing are being exaggerated to support her cause of action for spousal maintenance.
Upon review of the record, this Court finds that both parties are safe and appropriate parents to their children. However, upon balance, and as set forth below, this Court finds that Husband is better suited to support the subject children's basic needs at this time.
Social Media
There is no doubt that while there was conflict and strife in this house throughout the marriage, it greatly intensified after Wife began her "obsession" with Facebook. Husband credibly testified that Wife spent hours on her phone or computer each day engaging with strangers she met on line. She posted messages about the maltreatment and abuse she claimed she was suffering at the hands of her husband, none of which was proven at trial.
In response to her postings, men previously unknown to Wife volunteered to come to the marital home and inflict harm on Husband to "save her." Wife sent and responded to sexually graphic images and flirtatious comments from Facebook friends. Her social media activities were discovered by the subject child V.S. who shared them with Husband. While Husband was angry and hurt that Wife was soliciting other men online, this Court credits his testimony that he also sincerely feared for Wife's safety, his own safety and the safety of the children.
While this Court recognizes that there are many positive benefits to the use of social media, including connections with family and friends, and the sharing of life events, in this case, Wife's obsessive usage caused irreparable harm to her family. Wife's preoccupation with Facebook and her new "friends" consumed the majority of her time and attention to the detriment of her children and her marriage. Moreover, her activities online were unsafe, as she gave personal information to random men who offered to "protect" her, including offers to come to the children's home to beat up their father.
The subject children, and Husband, begged Wife to get off Facebook and to stop sharing the family's personal information online. However, Wife's obsession continued without pause. Indeed, in one incident which occurred at or around the commencement of this case, Wife invited a random woman that she met online, Ms. Virginia M., to come and live in the marital home. When questioned as to why she allowed this stranger to live in the marital home, Wife could not offer a coherent reason. This Court had to order Ms. M. to vacate the home so that Husband and the children could return. (See SFO 8/19/16, Jud. Not. 9). Even after Husband's life was threatened by one of Wife's Facebook "friends", Wife did not stop her excessive and inappropriate social media use. To the contrary, she continued to make online pleas for help which resulted in random men sending her financial support and gifts in various forms, including new exercise equipment.
Sadly, Wife has exhibited little insight, if any, as to how her obsessive misuse of social media contributed to the end of her marriage and the breakdown of her relationship with her children. Rather, Wife accuses Husband of parental alienation with no evidence to support that claim. The subject children are of advanced ages, fifteen and seventeen respectively, and are keenly aware of the negative effects of their mother's excessive social media usage. Notwithstanding their pleas, Wife has continued her social media obsession. She continues to assert that her Facebook friends saved her life, and are the only people supporting her. This Court has given significant weight to Wife's lack of judgment concerning social media usage, and the lack of responsibility she assumes for the effect it has had on her family.
The Attorney for the Subject Children
The position of the subject children's attorney was also considered by the Court. See Matter of Guiracocha v. Amaro , 122 AD3d 632 (2d Dept. 2014) ; See also Matter of Conway v. Gartmond , 108 AD3d 667 (2d Dept. 2013). At trial, the attorney for the subject child established that the subject children have been negatively affected by Wife's obsession with Facebook, and the resulting breakdown of the family unit. Before Wife's use of Facebook in 2014, she was heavily involved in the children's care. However, after she discovered social media she was too occupied to meet the needs of the children. (Tr. 3/26/18 pgs.128-130).
In his summation after trial, the attorney for the subject children argues that Husband should be awarded sole legal and physical custody. The children's attorney further argues that the children have a very full schedule and should not be compelled to follow a "set parenting schedule" with their mother. (See AFC's Summation dated 11/15/18). The testimony of the subject children, and their attorneys' articulation of their position, has been given substantial weight by this Court given their advanced ages. See Matter of Hall v. Hall , 118 AD3d 879 (2d Dept. 2014) .
In Camera Examination
The children's wishes were also considered by the Court. While not determinative, a child's expressed preference is a factor to be considered by the Court "particularly where the attorney for the child recommend[s] that the child's wishes be given weight, and where the [in camera] interview demonstrates the child's level of maturity" Matter of Ivory B. v. Shamecca D.B. , 121 AD3d 674 (2d Dept. 2014) .
While not disclosing the details of the in-camera examinations, both children have articulated their positions clearly. They love their mother; however, they are happy living with their father who, in their view, has done an excellent job of fulfilling the role of their primary caretaker. They strongly want to remain residing with their father and with their older sibling G. Jr. While Wife contends that the children have been "brainwashed" by Husband, this is unsupported by the record. Rather, the children's reluctance to see their mother is due primarily to her change in behavior when she became involved with men and other "friends" on Facebook. The children also stress that their schedules are very "full" and do not support a formal visitation schedule. Due to their advanced ages, and their level of maturity, the subject children's positions in this matter have been particularly meaningful and have been afforded "great weight." See Matter of McDonald v. Thomas , 154 AD3d 763 (2d Dept. 2017) .
Status Quo (Stability)
The subject children have resided with their father and their older sibling G. Jr. throughout the course of this proceeding in the former marital home. They share a loving relationship with both their brother and their father. In contrast, the subject children have spent very little time with Wife and are reluctant to see her. There have been no incidents reported to this Court that would raise concern if they were to continue living with Husband. Both children are doing well in school, and their grades have improved while in their father's care. In contrast, throughout the course of this proceeding, Wife claims her housing situation has deteriorated, often leaving her without heat or hot water. (Tr. 7/8/18 pg.42;86-87).
Both children expressed a strong preference to remain living in the former marital home with their father and G. Jr. They urge this Court to allow Husband to purchase Wife's share of this home so that they can remain residing there. Both Husband and the subject children fear they would be rendered homeless by a court ordered sale to a third party as Husband's disability income would not be adequate to pay rent for another home or apartment of an equivalent size. After considering the stated wishes of the children, and the fact that they have flourished in their father's care, the benefit of continuing the current physical residency order has been given some weight by this Court. See Matter of Peroglu v. Baez , 54 AD3d 416 (2d Dept. 2008) ; See also, Matter of Moran v. Cortez , 85 AD3d 795 (2d Dept. 2011) .
Primary Caretaker
Wife was heavily involved in caring for the children when were young, but that this has not been the case for several years. After Husband was no longer able to work, and particularly after Wife began her fixation with social media, Husband served as the primary caretaker of the children. He cooks for the children every day, does his best to assist them with school, gives them money when they need it, and takes them everywhere they need to go. While Husband's role as primary caretaker started when Wife found Facebook, that relationship has deepened during the course of this proceeding.
In addition to describing his daily parenting routine, Husband spent a considerable amount of time expressing how involved his son N.S. is in baseball. In addition to playing for his high school, N.S. also plays for a summer travel league. N.S. and his father both believe that baseball is his best path to a college education. N.S.' extra-curricular sports activities are particularly relevant to the issue of custody as Husband credibly testified that Wife has failed to attend any of N.S.' games, and is generally unsupportive, because "she doesn't like baseball." Likewise, while V.S. has not participated in dance for a few years, Husband was the parent primarily responsible for transporting her to practice. (Tr. 3/26/18 pgs. 70-71). The fact that Husband has established himself as the subject children's primary caretaker, and moreover that the subject children seem to be doing well under that care, has been given considerable weight in this Court's custodial determination. See Matter of Yu Chao Tan v. Hong Shan Kuang , 136 AD3d 933 (2d Dept. 2016) .
Access to Siblings
N.S. and V.S. remain subject to the custody/visitation jurisdiction of this Court. G. Jr., who is 19 years old, voluntarily and happily resides with his father. Moreover, G. Jr. assists his father in taking care of N.S. and V.S., such as transporting them when Husband is unavailable. As G. Jr. resides with Husband, and has limited contact with Wife, an award of custody of the two subject children to Wife would separate them from their older brother and impair their ability to see him. Generally, it is not preferable to separate siblings from one another. See Mohen v. Mohen , 53 AD3d 471 (2d Dept. 2008) ; See also, Matter of Luz Maria V. , 23 AD3d 192 (1st Dept. 2005) . This factor has been given some weight in this Court's custodial determination.
Ability to Foster a Relationship with Non-Custodial Parent.
Among the factors considered in making this custody determination, this Court has considered which parent is in a better position to facilitate and foster a meaningful relationship between the subject child and the non-custodial parent. See Matter of Lawler v. Eder , 106 AD3d 739 (2d Dept. 2013) . "One of the primary responsibilities of a custodial parent is to assure meaningful contact between the child and the noncustodial parent ." Alvarez v. Alvarez , 114 AD3d 889 (2d Dept. 2014) . In evaluating N.S. and V.S.'s best interests, this Court has given substantial time and thought to "the effect that an award of custody to one parent might have on the child's relationship with the other parent." Bliss on behalf of Ach v. Ach , 56 NY2d 995 (1982) .
Wife argues that Husband has alienated the subject children from her. However, contrary to her claim of "brainwashing" this Court finds that there is no evidence that Husband has turned the children against their mother. In fact, Husband has taken steps to encourage the children to visit with their mother, despite their general reluctance to do so. For example, Husband arranged for Wife to attend V.S.'s graduation (though she refused to attend the lunch) and has offered to drive the children to see their mother "whenever they want," or provide his car as transportation if G. Jr. is able to drive them.
In response to their reluctance to visit, Husband credibility testified that he has occasionally "forced" the children to visit on holidays, such as Mother's Day (Tr. 3/26/18 pg.73). However, he generally takes a "hand's off" approach. Unfortunately, Husband defers to the wishes of his children regarding visitation with their mother. Husband testified that he allows his children to arrange visitation directly with their mother, and that he chooses to "stay out of it" as much as he can. (Tr. 3/26/18 pg. 111). While this passive role is less than perfect, it is more a result of the children's reasonable arguments for not visiting than a product of parental alienation. As indicated herein, the subject children are mature, and active with friends, school, and extra-curricular activities. Moreover, the children have serious concerns about their mother's social media usage, her current living conditions, and her willingness or ability to take care of them.
In contrast, Wife evidences no insight into what role her preoccupation with social media, and her ill will for Husband has played on the demise of her relationship with her children. Rather she blames Husband, claiming that he turned the children against her. While the subject children align themselves with their father, they do so because they feel badly for him because of the way he was treated by Wife. Sadly, this Court holds little hope that Wife will understand that she must repair her relationship with her children. Wife harbors a considerable amount of anger against Husband, an extreme amount of distrust, and an unsubstantiated belief that he is in some way unfit to care for V.S., despite the fact that he has been doing so for over two years, without any meaningful contribution from Wife.
After considering the foregoing, and the recommendations of the Forensic Evaluator, this Court finds that Husband presents as the parent more likely to foster a relationship between the subject children and the non-custodial parent. See Matter of David C. v. Laniece J , 102 AD3d 542 (1stDept. 2013) ; See also Matter of Cisse v. Graham , 120 AD3d 801 (2d Dept. 2014) . While Husband needs to encourage his children to visit with their mother more often, on balance, this Court finds that he is the parent more capable of ensuring that the children will have a meaningful relationship with the non-custodial parent.
Financial Stability
Husband receives social security disability payments as his sole source of income. Wife reports that she has no income whatsoever. Husband testified that Wife makes approximately $ 20,000 a year from an alleged internet business and asked this Court to impute this income to her. However, Husband woefully failed to prove that Wife had any income aside from the temporary maintenance awarded by this Court. Similarly, Wife asked this Court to impute an unknown sum of money to Husband as income from an alleged landscaping and snow removal business. However, Wife also woefully failed to establish this claim.
Given Husband's limited means, Wife was authorized to collect 100% of the rental income from the parties' tenant in the former marital home. This monthly sum of $ 800 was allocated as temporary maintenance.
Husband credibly testified that he has never received financial support from his Wife to help with expenses related to the parties' three children. In fact, Husband testified that the parties "biggest argument" concerned Wife's steadfast refusal to seek employment. As a result, during their marriage, and during this proceeding, Husband has been paying all of the children's expenses, including food, clothing, shelter and utilities. When asked how he pays all these expenses with such limited means, he testified that he "borrows from Peter to pay Paul," and uses credit cards to buy groceries. (Tr. 1/18/18 pg. 91).
In addition to basic expenses, the subject child N.S. participates in a baseball league. This league, and a related summer traveling league, costs Husband approximately $ 2,400 a year, which he pays without contribution from Wife. Husband testified that he will make whatever sacrifices are necessary to ensure that his son plays baseball as his talent in that regard may qualify him for a college scholarship.
For the limited purposes of this custody analysis, this Court finds that both parties are of extremely limited financial means. However, as the only party with a stable source of income, Husband presents as the parent better suited to address the financial needs of the children. See Matter of Batchelder v. BonHotel , 106 AD3d 1395 (3rd Dept. 2013) ; See also, Sciartelli v. Sciartelli , 140 AD2d 863 (3rd Dept. 1998) . Husband has shown that he will sacrifice his own needs to support his children. On the other hand, Wife has offered no viable plan towards achieving financial stability. To the contrary, Wife testified that she rejected job offers because she is not emotionally ready to enter the work force. (Tr. 1/24/18 pg. 71). Given their comparative limited resources, this Court has considered, but attributed little weight to this factor in reaching its custody determination.
The Forensic Evaluator
During the course of these proceedings, a forensic evaluation was conducted by Dr. N.G. Berrill. The recommendation of the Forensic Evaluator was a factor considered by this Court in making its custody determination. "While the recommendation of a court-appointed evaluator is not determinative, it is a factor to be considered and is entitled to some weight." Matter of Doyle v. Debe , 120 AD3d 676 (2d Dept. 2014) .
By Order dated November 7. 2016, Dr. N.G. Berrill was appointed to conduct a forensic evaluation in furtherance of the issues of custody and parental access. As part of his evaluation, Dr. Berrill considered collateral sources of information. His report was entered into evidence without objection (Pl. Ex. 6). Dr. Berrill testified before this Court on March 26, 2018. All counsel stipulated that Dr. Berrill was an expert in "forensic psychology."
Dr. Berrill recommended that N.S. and V.S. remain living with their father. While he viewed Wife as "someone who needs assistance on a number of levels", he recommended that the children be permitted liberal visitation with her. Both children reported to Dr. Berrill that they speak to their mother frequently, and that their father does not try to dissuade them from seeing her. Both children agreed that they prefer a less rigid schedule because they are busy with school, extra-curricular activities, sports, and friends. Dr. Berrill recommended that the children's schedules should be strongly considered when determining parental access.
After considering Wife's presentation during the forensic evaluation, her visit with the children in his office, and her psychological test results, Dr. Berrill "strongly recommended" that she seek outpatient treatment. He further recommended that the children consider joining their mother in some form of family therapy to address their feelings regarding Wife after her involvement with social media.
This Court agrees with Dr. Berrill that it is important that Wife visit with the children. The Court finds that the parenting schedule set forth below will provide significant parental access to both the custodial and non-custodial parent. In making its custody and parental access decision herein, this Court has given significant weight to the thorough and credible testimony of the forensic evaluator. Matter of Wilson v. Bryant , 143 AD3d 905 (2d Dept. 2016) ; See also, Matter of Mondschein v. Mondschein , 122 AD3d 636 (2d Dept. 2014) .
Domestic Violence
Both parties in this action have raised claims of domestic violence against the other. Wife claims that Husband attempted to strangle her, and that he broke furniture in a fit of rage. Husband testified that Wife punched him in the eye, hit him with a phone, and consistently threw things at him. Both parties testified as to verbal altercations. As indicated above (See "Family Offense") this Court has specifically considered the parties' cross allegations of domestic violence and has dismissed each of their petitions for a failure to meet their respective burdens of proof.
Both parties' allegations of violence against each other were considered by this Court in relation to the issue of custody. See Matter of Melissa G. v. John W. , 143 AD3d 406 (1st Dept. 2016) ; See also Matter of Supangkat v. Torres , 101 AD3d 889 (2d Dept. 2012) . While it is clear that the parties' contentious marriage grew increasingly volatile after Husband discovered Wife's inappropriate internet relationships, this trial record does not support a finding of domestic violence. The criminal cases brought by the People were dismissed. Moreover, both of the family offense petitions have been dismissed herein. While the subject children were witnesses to an acrimonious relationship, there is insufficient evidence of domestic violence such that a specific finding can be made against either parent. Accordingly, this Court has afforded little weight to the parties' cross-claims of domestic violence in relation to the issue of custody.
Custody N.S. and V.S.
After considering all the relevant factors indicated above, this Court finds that, on balance, Husband is far more capable to address the subject children's social and intellectual needs and general wellbeing. See Rosenberg v. Rosenberg , 145 AD3d 1052 (2d Dept. 2016) . Moreover, Husband is the parent more capable of providing stability for the children, both financially and emotionally. See Klat v. Klat , 176 AD2d 922 (2d Dept. 1991) . Perhaps more importantly, in this particular case, is the unequivocal desire of the subject children to continue residing with their father, as advocated by their counsel and as recommended by Dr. Berrill. See Cook v. Cook , 142 AD3d 530 (2d Dept. 2016) , See also Matter of McDonald v. Thomas , 154 AD3d 763 (2d Dept. 2017) . After consideration of the above factors, and considering the fact that Husband presented as the more credible witness at trial, an award of sole, legal and physical custody to Husband is hereby granted. The Court finds that an award of sole custody to Husband is in the subject children's best interests. See Matter of Clarke v. Wiltshire , 145 AD3d 776 (2d Dept. 2016) ; See also Patanella v. Keveney , 145 AD3d 686 (2d Dept. 2016).
In furtherance of this award of sole custody, and the resulting responsibility as the custodial parent to foster the child's relationship with the non-custodial parent, Husband is hereby directed to confer with Wife on all issues relating to the children's, education, religion and medical matters. That communication may be effectuated by any means, but email or text messages are encouraged to lessen the amount of hostility between the parties. Husband shall, however, have final decision-making authority with respect to these and all other major issues.
Each party shall retain authority to make day to day decisions while they are with the children. Both parents shall have access to the children's medical and educational records and to their medical providers and educators. Each parent shall be responsible for securing said information on their own. Both parties shall be entitled to attend all school, extracurricular, sporting and significant events in the children's life, at his or her own expense. Wife shall have reasonable telephone contact with the children when they are available.
Parenting Time with Wife
While Husband has been granted sole legal and physical custody with final decision making, this does not end the Court's analysis. Wife has a presumptive right to access to her children, and Husband has not attempted to rebut that right. Moreover, he has been generally supportive of the bond Wife seeks to rekindle with her children. Husband is reminded of his increased obligation under the law to foster a relationship with Wife when exercising his award of sole custody. See Phillips v. Phillips , 146 AD3d 719 (1st Dept. 2017) . In this regard, Husband should do his best to encourage the subject children to visit with their mother.
Given the advanced ages of the children and their consistent, steadfast, position that they do not want a formal schedule with their mother, a typical schedule would be difficult to devise and impossible to enforce in this case as a practical matter. However, for this Court to grant the children's application that no schedule be ordered, and authorize them to contact their mother if and when they desire to, would amount to an abdication of this Court's responsibility to enforce Wife's right to visitation. Accordingly, this Court is constrained to structure a parental access schedule, despite the children's stated wishes.
Against this background, Wife shall be granted alternate Sunday visits with the children beginning at 12:00 noon and ending at 6:00 p.m. together with a dinner visit every Wednesday evening from 6:00 p.m. to 9:00 p.m . The Court is aware that this is a very limited visitation schedule but is hopeful that this will help foster the bond between Wife and these teenage children such that they will voluntarily seek additional time with her without the need for further court intervention. To the extent the subject children are unable to transport themselves to the current visitation schedule, or any additional time agreed to between the parties, then Husband shall be responsible for pick up and drop off curbside at Wife's residence.
Both children have busy schedules that do not involve spending time with either parent, and have expressed a concern that a schedule of parenting time with their mother would disrupt their plans. N.S., in particular, is heavily involved in competitive baseball, and has indicated that he hopes to use his athleticism to secure a college scholarship. Accordingly, Wife is hereby directed to ensure that N.S. attends any games or practices that occur during her parenting time, although she may attend his games or practices if she so chooses.
Holiday Time
The parties shall alternate all of the major holidays as set forth below. Wife's Holiday Parenting time shall commence at 12:00 noon and end at 6:00 p.m. If a conflict occurs between the normal parenting schedule and the holiday visitation schedule, the holiday visitation schedule will supersede normal parenting time. Holidays that fall on school days, such as Halloween, shall commence at school dismissal and end at 9:00 p.m .
Mother's Day shall always be with Mother and Father's Day shall always be with Father.
Children's Birthday: even years: Mother / odd years: Father Thanksgiving: even years: Mother / odd years: Father Christmas Eve: even years: Father / odd years: Mother Christmas Day: even years: Mother / odd years: Father New Years Eve: even years: Mother / odd years: Father New Years Day: even years: Father / odd years: Mother Martin Luther King Day: even years: Mother / odd years: Father President's Day: even years: Father / odd years: Mother Good Friday: even years: Father / odd years: Mother Easter: even years: Mother / odd years: Father Memorial Day: even years: Father / odd years: Mother Fourth of July: even years: Father / odd years: Mother Labor Day: even years: Mother / odd years: Father Halloween: even years: Mother / odd years: Father Columbus Day: even years: Father / odd years: Mother Veteran's Day: even years: Mother / odd years: Father
Maintenance
Wife seeks an award of maintenance in this divorce proceeding. This claim was first raised in her Verified Answer with Counterclaims dated November 16, 2016. (Ct. Ex. No. 2). On more than one occasion Wife was directed to file and serve a written Statement of Proposed Disposition setting forth proposed parameters for a final award of maintenance, which she failed to do. However, this Court extended Wife the procedural leniency, as a self-represented litigant, to place her request for maintenance on the record. On the trial record of January 24, 2018, Wife informed the Court she is seeking the sum of "$ 1,200 or $ 1,500 a month, for as long as [she] can get it" (Tr. 1/24/18 pg.4). Wife offered no explanation as to how she calculated these figures and provided no presumptive calculations pursuant to DRL § 236(B)(6).
Husband opposes Wife's claim for maintenance, arguing that she is capable of gainful employment and that she currently supports herself despite claiming to be unemployed. He also argues that any award of maintenance would reduce his fixed disability income below the self-support reserve. Husband further testified that he is the only parent who provides any financial support for the subject children, and if he were ordered to pay even a nominal sum of maintenance, he would suffer an extreme financial hardship.
The present action was commenced in June of 2016, some five months after the statutory revisions of post-divorce maintenance which took effect in on January 23, 2016. See DRL § 236(B)(6) . Accordingly, in determining whether to award spousal maintenance under DRL § 236(B), the Court must utilize a statutory formula to determine the presumptive amount of guidelines maintenance to be awarded to the less monied spouse. In the event the Court finds that the presumptive amount is unjust, or inappropriate, thereby warranting a deviation, the Court must consider the statutory factors as set forth in DRL § 236(B)(6)(e)(1a-o). The statute further requires that the order adjusting the presumptive award must include the amount of the unadjusted presumptive award of post-divorce maintenance, the factors the Court considered, and the reasons the Court adjusted the presumptive award. See DRL § 236B [6][e][2] .
In addition to setting forth a means to calculate the amount of presumptive guidelines maintenance, DRL § 236 further provides a method by which the Court can determine an appropriate duration of post-divorce maintenance. See DRL § 236B(6)(f) . These provisions, which are advisory, indicate that for a twenty-six-year marriage, such as this marriage, the duration of maintenance should be between 35% to 50% of the duration of the marriage. In the present case, that would indicate a duration of between 9 and 13 years. Whether or not the advisory guidelines are utilized, the Court is directed to set forth the factors it considered in determining an appropriate duration of maintenance.
The parties were married on June 2, 1990 and the present action for divorce commenced on June 20, 2016.
In determining income for the purpose of calculating maintenance, the statute uses the same definition of income as set forth in the Child Support Standards Act. See DRL § 236B [5-a][b][4] . The Court is directed to utilize income figures as they were, or should have been, reported on the parties' most recently filed tax return. See DRL § 240(1-b)(b)(5)(i) ; See also Miller v. Miller , 18 AD3d 629 (2d Dept. 2005) .
During trial, no recent tax returns were provided to the Court by either party as evidence. In fact, it is unclear whether either party has even filed tax returns in recent years. The only tax return available to the Court, found as an attachment to Husband's Updated Statement of Net Worth (Pl. Ex. 2), indicates that he earned the sum of $ 22,209 in 2014. This figure consisted of "wages" in the amount of $ 19,100 from an undisclosed source, together with rental income in the amount of $ 3,109 . However, as was established during trial, these figures are of little value as Husband has since been declared disabled, and the parties' tenant has since vacated, leaving the parties without rental income. Husband credibly testified that he currently receives $ 1,085 a month in social security disability payments, less a Medicare premium in the amount of $ 134 , for an adjusted award of $ 951 a month. (Pl. Ex. 3). This amount, calculated over a year, results in an annual income of $ 11,412 .
While Wife claimed that Husband earns additional income as the owner/operator of a landscaping and snow removal business known as "Vintage Landscaping" she woefully failed to establish her claim. Rather, the Court credits Husband's testimony that he is disabled with serious injuries to his spine and knee, that he is unable to work, and does not currently operate a business. (Tr. 1/18/18 Pg.75). Husband credibly testified that Vintage Landscaping was a company name that he used while he was employed by his late brother's landscaping company. Wife offered no evidence, other than her speculative testimony, that Husband is currently earning any money in addition to his disability benefits.
Wife is currently unemployed and has been for a considerable amount of time. Wife credibly testified that she has not worked a "traditional" job since the "80's" when she worked with "prisoners" and the "elderly," though she failed to explain the nature of the services she provided. Wife could not recall what years she worked, or how much she earned from that alleged employment. (Tr. 1/18/18 pgs. 32-34). Wife further failed to identify any skills gained through her prior employment which might be transferrable to another career.
While this testimony was offered in connection with a lengthy "opening statement" and thus is not traditional admissible testimony, the Court notes that Wife was under oath at the time she made the statements, and self-represented. It has been considered as the equivalent of direct testimony from Wife on her direct case.
Husband argues that Wife is being less than truthful regarding her employment status. Husband claims that Wife runs an internet business with her Facebook boyfriend earning an unknown sum of money. Wife's testimony on the subject of this "internet business" was disjointed and unclear. At times, Wife admitted that she was involved with a "health related technology" business. In fact, she purchased shirts and hats to promote this business. However, Wife later testified that she didn't have an ownership interest in the business, and that she never earned any money from her involvement. In addition, Wife testified that she has been offered various jobs in her neighborhood, but that she turned them all down claiming she is not in an emotional state conducive to employment. (Tr. 1/24/18 pgs.72-76). Some of these opportunities included fostering dogs, working in a local bakery, or in a pork store.
Although Wife's testimony was not credible regarding her employment, or ability to obtain employment, Husband failed to establish the nature of Wife's involvement with the internet business, or her ability to earn a specific sum of income from any source that could be imputed to her. Accordingly, Husband's application for the Court to impute income to Wife is hereby denied as unsupported by the record. For the limited purposes of calculating statutory maintenance, Wife shall be considered unemployed with a reported income of zero ($ 0 ).
From these gross amounts the Court is required to subtract statutory tax deductions that were "actually paid". See Kaufman v. Kaufman , 102 AD3d 925 (2d Dept. 2013) . As indicated above Husband receives tax free income with a Medicare deduction, and Wife receives no income. Accordingly, for the purposes of calculating statutory maintenance both parties' incomes shall be as indicated above.
Calculations
Under the maintenance guidelines statute, the Court is required to make three calculations using the parties' annual incomes. The direction to utilize either the first or second calculation is dependent upon whether the spouse paying maintenance (the "payor spouse") is also the spouse required to pay child support. The presumptive award of maintenance shall be the lower of either the first or second calculation (whichever applies), as compared to the third calculation.
In the present case, Husband is the party presumptively obligated to pay maintenance, but not child support, thus, the second calculation applies. For the second calculation, the Court is required to subtract 20% of the payee's income from 30% of the payor's income. Here, Wife's income is $ 0 and Husband's adjusted income is $ 11,412 . After applying the parties' respective incomes with the above arithmetic, the Court finds that the second calculation results in an award of $ 3,424 a year.
For the third calculation, the Court is required to add together the payor's income and the payee's income and multiply the combined sum by 40%. The payee's income is then subtracted from this figure. Here, the parties' combined income is $ 11,412 . Multiplying this figure by 40%, the calculated figure is $ 4,565 . When Wife's income of $ 0 is subtracted from the combined amount the Court finds that the third calculation results in the sum of $ 4,565 a year.
As the Court is directed to utilize the lower of the two calculations, the presumptive amount of guidelines maintenance is $ 3,424 a year, or $ 285 a month. However, this does not end the Court's analysis, as the maintenance guidelines further indicate that if the payment of maintenance would reduce the payor's income below the self-support reserve ($ 16,281 ) then the presumptive award becomes the payor's income minus the self-support reserve. Moreover, if the payor's income is less than the self-support reserve, it shall be presumed that no maintenance should be awarded. See DRL § 236(B)(6)(c)(f) . Here, Husband's income of $ 11,412 is less than the self-support reserve of $ 16,281 . Thus, no award of maintenance is warranted under the maintenance guidelines.
Therefore, in accordance with the maintenance guidelines set forth in DRL § 236(B), this Court declines to award Wife maintenance in this proceeding. As set forth above, this case presents with two litigants who both claim to earn less than the self-support reserve, but who both somehow manage to live their lives without utilizing public assistance. In particular, despite her claims of being destitute, this Court notes that Wife lives in a large private home which she reluctantly admitted she has an ownership interest in. She also testified that she obtains financial assistance from "around the globe" with people sending her money, food, and exercise equipment. (Tr. 1/24/18 pgs. 52-55). This routine and regular support obtained by Wife from her friends, family, and through "Facebook" is arguably imputable to her. See Baumgardner v. Baumgardner , 98 AD3d 929 (2d Dept. 2012) ; See also, Margolis v. Cohen , 153 AD3d 1390 (2d Dept. 2017) . Finally, Husband alleges that Wife was entitled to receive an inheritance, in an unknown amount, from her mother, who unfortunately passed away during the course of these proceedings. Wife denied that she was going to get anything more than a nominal amount from her mother's estate. However, elsewhere in the record Wife admitted that she has, or would obtain, an ownership interest in her late mother's home.
While Wife admitted that she gets support from family and friends, Husband failed in his burden of establishing a reasonable value for this support, such that imputation could be properly considered by this Court. While Wife's admits that she has an ability to obtain assistance from various third parties, in contrast, Husband must rely upon his fixed income to support himself and the children of the marriage with no contribution from Wife, or anyone else. Moreover, while Wife has been offered employment by retail establishments near her house, she has turned those offers down, and testified that she hasn't sought employment since she left the former marital home. (Tr. 7/9/18 pg.67). The record supports a finding that Wife chooses to remain unemployed.
While this Court could arguably award a nominal amount of maintenance for the next 9 to 13 years, as this admittedly is a marriage of long duration, any such amount would likely be insufficient to support Wife. Moreover, even a trivial award to Wife would constitute an upward deviation from the statutory presumption ($ 0) that would arguably render Husband unable to care for the subject children at their already strained standard of living. Accordingly, rather than awarding Wife a trivial sum of maintenance, this Court will consider the lack of a maintenance award when it considers the equitable distribution of the parties' sole asset of value, the former marital home. (See "Equitable Distribution" below).
Child Support
Plaintiff Husband requests an award of child support for the three subject children of this marriage who reside with him. As per the terms of this Decision after Trial, Husband has been granted custody of the two subject children who are under the age of 18. Moreover, G. Jr. (d.o.b. */**/98) is subject to the child support jurisdiction of this Court. See Matter of Addimando v. Huerta , 147 AD3d 750 (2d Dept. 2017) . It is undisputed that G. Jr. resides primarily with Husband. Accordingly, Husband is the parent entitled to an award of child support for all three children.
The Child Support Standards Act sets forth the method by which the "presumptively correct" amount of child support can be calculated. See Domestic Relations Law § 240 ; Family Court Act § 413 . A three-step process is required by the relevant statutes. The first step requires a calculation of the "combined parental income" up to a statutory cap, currently $ 148,000 . See NY Soc. Serv. Law § 111-i(2)(b) . The second step requires the Court to multiply the combined parental income by a specified percentage based upon the number of children. The third step is only triggered when the combined parental income exceeds the statutory cap. Once the statutory percentage is applied to the parties' combined income, and each parties' pro rata contribution to that amount is determined, the resulting sum is the presumptively correct amount of child support.
As indicated above, the Child Support Standards Act (CSSA) presumptively results in the correct amount of child support to be awarded to the custodial parent. As there are three children of this union, the correct statutory percentage to be applied to the combined parental income is 31%. See Turco v. Turco, 117 AD3d 719 (2d Dept. 2014) . Application of this percentage to the combined parental income will provide the appropriate level of support to meet the basic needs of the subject child. When determining child support under the guidelines, the Court is directed to begin its analysis by considering the income as it was, or should have been, reported on the parties' most recent tax return. See DRL § 240(1-b)(b)(5)(i) ; see also, Matter of Lynn v. Kroenung , 97 AD3d 822 (2d Dept. 2012). However, where appropriate, the Court is able to use more recent income information. See Matter of Daily v. Govan , 136 AD3d 1029 (2d Dept. 2016) ; See also Matter of Moran v. Grillo , 44 AD3d 859 (2d Dept. 2007).
Here, for the detailed reasons set forth above (See "Maintenance"), the Court has found that Husband's income is limited to his Social Security disability payments in the monthly amount of $ 1,085 , less a Medicare deduction of $ 134 , for an adjusted award of $ 951 . (Pl. Ex. 3). This amount, calculated over a year, results in an annual income of $ 11,412 . Wife's income is zero ($ 0 ) as she is unemployed, does not receive public assistance or other benefits, and has not been awarded maintenance herein.
As Wife is the party obligated to pay child support, but has no reported income, the Court is unable to calculate child support under the CSSA guidelines. However, in circumstances such as this, the CSSA guidelines provide a statutory "floor" for child support in the amount of $ 25 a month. See DRL 240(1-b)(d), See also, Matter of DiDonato v. Sass , 66 AD3d 675 (2d Dept. 2009) . While the payment of this amount is not "un-rebuttable" the Court notes that Wife is not without means, as she admittedly obtains routine financial support in an unspecified amount from friends, family, and people that she meets on "Facebook." See Rose ex rel. Clancy, v. Moody , 83 NY2d 65 (1993) . Moreover, Wife is be entitled to a considerable sum of money in equitable distribution (see below) that she can use to pay the minimum amount of child support. Accordingly, Wife's child support obligation shall be the statutory minimum of $ 25 per month.
Either party shall be entitled to a recalculation of this child support award from a Court of competent jurisdiction upon a showing of (1) a substantial change in circumstances; (2) an increase or decrease of 15% in either parties' income; or (3) three years passage of time from the issuance of the Judgment of Divorce incorporating this Decision after Trial.
Retroactivity
Child support awards are generally retroactive to the first time that they were affirmatively requested. See Crane v. Crane, 264 AD2d 749 (2d Dept. 1999) . Here, Husband's Summons and Complaint makes no reference to child support. A review of the official court file reveals that that Husband made his first application for support in an Order to Show Cause which was filed on or about June 14, 2016. See Beach v. Beach , 158 AD2d 848 (3rd Dept. 1990) . As 32 months have passed from the time when Husband first requested child support to the month of this Decision, Wife owes the sum of $ 800 in child support arrears. However, as Wife's income is below the Federal Guidelines, the arrears shall be capped at $ 500 as required by applicable law. See FCA § 413(1)(g) ; See also Commissioner of Social Servs. V. Gomez , 221 AD2d 39 (1st Dept. 1996) . While Wife would be entitled to credit for any pendente lite payments, she has not provided child support, voluntarily or otherwise, throughout the course of this proceeding. Wife's payment of arrears will be addressed in this Court's Decision on Equitable Distribution (see below).
Filed by Plaintiff's former counsel.
Equitable Distribution
a. Marital Home
During their marriage, the parties resided at 90 R. Drive, on Staten Island, New York. The parties purchased the property during the course of their marriage. Neither party contests that the property is "marital" in nature. This home is the only valuable asset owned by the parties and is presently the residence of Husband and the three children of this marriage. Despite the paramount importance of this asset to both parties, very little admissible evidence was offered at trial regarding how it should be equitably distributed by this Court.
Husband has repeatedly requested the right to "buy out" Wife's share of the equity in the marital home to preserve it as a residence for the subject children. This application has also been made by the children themselves who have indicated a desire to remain in their childhood home. The parties ultimately agreed that Husband should have the right to buy out Wife's interest in the home. (See SFO 5/4/17, Jud. Not.16). However, Wife has allegedly rejected all of the buy-out offers made by Husband. (e.g. Tr. 7/9/18 pg. 106).
In the pre-trial stages of this proceeding, the parties initially agreed to sell the R. Drive property to a third party. By Order dated August 19, 2016, the marital home was ordered sold by a realtor chosen by Husband on notice to Wife. Both parties were ordered to "cooperate in all ways with the listing, showing, contract and sale of the home." (See SFO 8/19/16, Jud. Not.9). For reasons not explained at trial, this initial listing expired without the house being sold.
By Order dated May 4, 2017, the parties agreed to appoint a different real estate broker to conduct a "free market analysis" to determine an appropriate value for the home. The stated purpose of this market analysis was to "determine a buy-out amount." (See SFO 5/4/17, Jud. Not. 16). While a certified real estate appraisal would have been preferable, the parties jointly claimed an inability to pay for an expert valuation. When the parties once again failed to agree on a buyout amount, the home was listed for sale with that broker. The listing price on the new agreement was $ 629,888 in accordance with the market analysis. The relator later recommended a reduction in the listing price to $ 599,000 which was also ordered.
Despite the reduction in price, the house did not sell. On or about December 19, 2017, Husband made an application before this Court to lower the listing price from $ 599,000 to $ 570,000 . That application was granted. (See SFO 12/19/17, Jud. Not. 6). The property still did not sell at that amount. Based upon claims that Husband was not cooperating with the real estate broker, Wife moved by Order to Show Cause dated August 24, 2018 (Mot. Seq. No. 004) to be appointed receiver in control of the sale. That motion was referred to the trial, however, Wife never offered any testimony or evidence to support the claims made therein. To date, the home has still not been sold, and to this Court's knowledge, it is no longer on the market.
On the last day of trial (July 9, 2018), Husband filed an Order to Show Cause (Mot. Seq. No. 006) which contained his third request to buy out Wife's share in the property. He seeks an order authorizing him to pay Wife a total of $ 91,630 , representing what he determined to be her equitable interest in the property. In reaching this sum, Husband uses a starting value of $ 570,000 then credits himself $ 227,297 for his payoff of the mortgage allegedly using inherited funds. Husband then raised, for the first time, an alleged $ 120,000 lien filed by his now deceased brother A. S. No testimony or evidence was offered at trial regarding the existence of this lien, its nature, or whether it should even be considered a marital debt to be distributed by this Court.
In addition, Husband detailed additional expenses related to the home, including common charge arrears of $ 9,876.98 , real estate tax arrears of $ 14,861.03 , an outstanding water and sewer bill of $ 4,302.50 and NYS and NYC Transfer taxes of $ 10,402.30 . As will be indicated below, these figures differ from, and are unsupported by the trial record. According to his calculations, this analysis would net equity of $ 183,260. Further assuming that this Court would grant each party 50% of the remaining equity, Husband requests the right to buy out Wife's share for an amount of $ 91,630.06 . Wife has filed a cross motion (Mot. Seq. No. 007) wherein she objects to all aspects of this analysis and requests a buyout figure of $ 285,000 . Wife does not explain how she derived this figure; however, she vehemently contests all of Husband's "contribution claims." Notably, both Husband's motion, and Wife's cross motion, were filed after the trial record was closed by the parties and this Court.
The proper way to address a cause of action or claim during a trial is to elicit relevant testimony and offer admissible evidence in support of those claims. The filing of a motion after both parties rested, raising new claims and facts that were not raised during trial, negates concepts of basic due process and the rules of evidence. The Court is not authorized to consider facts outside of the trial record. See Central Hanover Bank & Trust Co. v. Eisner , 276 N.Y.121 (1937); See also, Kitchen v. Sothebys , 18 Misc 3d 1132(A), (Civ. Ct. NY Cty. 2008) . Moreover, even if the Court were in a position to consider the new facts and claims set forth in Husband's motion, his Affidavit in support thereof does not provide any details regarding the alleged lien from his deceased brother. Without admissible evidence, the Court cannot consider the lien, or the various arrearages indicated in Husband's motion. Accordingly, this Court finds that there is a failure of proof to establish that any alleged lien from his brother is a marital debt that should be shared by the parties or distributed by this Court. See Greenwald v. Greenwald , 164 AD2d 706 (1st Dept. 1991).
The only separate property claim made by Husband that was substantiated at trial was his claim that he inherited money from the passing of his mother, transferred through his father as a testamentary substitute, inter vivos gift. Inter vivos gifts, and inheritances, are separate property upon receipt, and thus are not subject to equitable distribution. See Feldman v. Feldman , 194 AD2d 207 (2d Dept. 1993) ; See also, Harned v. Harned , 185 AD2d 226 (2d Dept. 1992) ; Vogel v. Vogel , 156 AD2d 671 (2d Dept. 1989). Notably, while these funds were initially wired into a joint account bearing both parties' names, the proof at trial provided clear and convincing evidence that these funds were placed into that joint account solely as a matter of convenience. See Belilos v. Rivera , 164 AD3d 1411 (2d Dept. 2018) ; See also Signorile v. Signorile , 102 AD3d 949 (2d Dept. 2013) . Notably, the funds were wired out of the joint account to pay down the mortgage shortly after they were made available by the bank.
Husband further proved that he funded all of the expenses associated with the home (such as taxes and utilities) until this Court diverted the rental income that was used for that purpose. That monthly sum of $ 800 in rental income was diverted to Wife as an award of emergency pendente lite maintenance as there were no other funds available. (See SFO 8/19/16, Jud. Not. 9). Despite receiving the entirety of the rental income for a period of time, Wife did not contribute any money to the preservation of the marital home or to the support of the children. Accordingly, the Court finds that the house related arrears substantiated at trial, in the total amount of $ 35,500 (Tr. 1/24/18 pg. 21) were caused by the actions of both parties and thus should be distributed equally.
Husband testified that the parties owed $ 21,000 in taxes, $ 9,800 in association fees, and $ 4,700 for a water bill.
Thus, after considering the testimony of the parties, and the evidence elicited during trial, this Court finds that Husband is entitled to a separate property credit for the mortgage pay off in the amount of $ 227,297. See Wade v. Steinfeld , 15 AD3d 390 (2d Dept. 2005) . Husband is entitled to this credit as he obtained the money to satisfy the mortgage as an inter vivos gift from his father. See Adams v. Adams , 129 AD2d 661 (2d Dept. 1987) . Wife does not dispute that these monies came from Husband's father, but she claims that it was it was a gift to both parties. Wife offered no evidence in support of this assertion, and her testimony on the subject was not credible. Moreover, Husband credibly testified that Wife had no meaningful relationship with his father, and that his father never would have given her a gift in any amount, especially after her conduct on Facebook.
Having determined the appropriate credits that should be awarded to Husband, his application to have an opportunity to buy out Wife's share of the equity in the former marital home is granted. See Rado v. Rado , 298 AD2d 887 (4th Dept. 2002) ; See also Rubackin v. Rubackin , 107 AD3d 872 (2d Dept. 2013) . This application was supported by the subject children, who indicated, through counsel, a strong desire to remain in the former marital home. Notably, the parties also initially stipulated that Husband should have an opportunity to purchase Wife's share of the equity, although Wife later attempted to disavow that position. See Ramnarain v. Ramnarain , 7 AD3d 600 (2d Dept. 2004) ; ( SFO 5/4/17, Jud.Not.16).
In order to formulate an equitable buyout provision, the Court must first determine a proper starting value. Here, Husband argues that the value of the home should be set at $ 570,000 , which is the last reduction in price directed by this Court before the conclusion of the trial. (See SFO 12/19/17. Jud. Not. 6). While Wife's testimony suggested that it should "sell for more," she offered no evidence as to an alternative valuation at trial. However, in her written Summation, Wife offers documentation that a fair market value would be somewhere between $ 550,000 and $ 585,000 . After considering the limited record before the Court, this Court finds that the amount of $ 570,000 is fair under the circumstances, as the property failed to sell at the higher listing prices originally set by this Court ($ 629,888 and $ 599,000 respectively).
While not admissible evidence, Wife annexes to her Summation a letter from a Realtor which indicates that the "home's current market value could be ‘listed to sell’ anywhere between $ 550,000 and $ 585,000 ."
After determining a starting value for the home, the Court must then determine appropriate credits and equitably distribute marital debts associated with the home. For the reasons set forth herein, this Court credits Husband the sum of $ 227,297 , representing a paydown of the mortgage from funds gifted to him as an inheritance substitute. As set forth above, Husband is also entitled to a retroactive child support credit in the amount of $ 500 . As for marital debts, this Court finds that the utility and tax arrearages associated with the home, in the amount of $ 35,500 , should be split evenly (50% each) between the parties. As for the alleged lien levied by Husband's brother, raised in his post-trial motion, that lien is not properly in the record, and cannot be distributed by this Court. See Reiner v. Reiner , 100 AD2d 872 (2d Dept. 1984) . In the event that Husband is able to purchase Wife's share of the marital home's equity, Husband shall take the property subject to that lien to the extent that it actually exists and is legally enforceable. See Oliver A. v. Christina A. , 9 Misc 3d 1104(A) (Sup. Ct. Suff. Cty. 2005).
Finally, the Court must determine an equitable distribution of the net equity, after consideration of credits and marital debts. To this end, the Court is directed to consider a number of statutory factors. See DRL § 236(B)(5)(d)(1-14) . Generally, in a marriage of long duration assets are to be distributed as evenly as possible. See Morielle-Hinds v. Hinds , 2019 NY Slip Op 01208 (2d Dept. 2019) . However, the Court notes that a marriage of long duration usually also results in a maintenance award. Here, any award of maintenance payable to Wife would result in Husband's income falling below the self-support reserve. Moreover, as he is the only income producing parent, a reduction in his fixed income would adversely impact the subject children. Accordingly, in lieu of awarding Wife' maintenance, the Court finds it equitable to distribute the net equity from the marital home 55% to Wife and 45% to Husband. See DRL § 236(B)(5)(d)(6) . The Court finds that this uneven distribution of assets is equitable under the circumstances, especially in light of the considerable separate property contribution being credited to Husband. See DRL § 236(B)(5)(d)(1) . Equitable distribution does not always result in equal distribution. See Adjmi v. Adjmi , 8 AD3d 411 (2d Dept. 2004) .
As indicated above, the value of the marital home has been set by this Court at $ 570,000 . From this amount Husband is entitled to a gift credit of $ 227,297 "off the top." This results in an adjusted gross equity value of $ 342,703 , which shall be distributed 55% to Wife and 45% to Husband. Accordingly, before deductions, Wife is "entitled" to the sum of $ 188,487 . From this amount the Court must deduct the portion of marital debts associated with the property that are attributable to Wife. Husband established that the parties jointly owe the sum of $ 35,500 in taxes and carrying charges which have been attached to the property. Wife's 50% share of these arrearages amounts to $ 17,750 . In the event of a buyout, this amount shall be deducted from Wife's share of the equity, and in return Husband shall be wholly responsible to pay the arrears and taxes associated with the home. Finally, Wife owes Husband the sum of $ 500 in child support arrears which will be deducted from her share.
When adjusted by these deductions, Wife is entitled to the sum of $ 170,237 from the equity in the former marital home. Husband is hereby authorized to "buy out" Wife's equity in the home by paying her the sum of $ 170,237 within 180 days from the issuance of this Decision. If Husband chooses to exercise his right to buy Wife's interest in the home, he shall take the property subject to all existing liens, if any, including the alleged lien from his deceased brother.
$ 342,703 x 55% = $ 188,487 $ 17,750 = $ 170,737 $ 500 = $ 170,237 .
In the event that Husband is unable, or unwilling, to purchase Wife's equity interest in the home, it shall be sold on the open market to a third party. If this option is utilized, then Husband shall select a real estate broker to sell the house and inform Wife of the same in writing. That broker shall be authorized to take a commission of five percent (5%) for the sale unless Husband can negotiate a lesser rate. The house shall be listed at a minimum of $ 570,000 or an amount in excess of that figure if recommended by the listing broker. The listing price shall be reasonably reduced by the broker every 60 days that the house remains on the market without a sale. Husband shall cooperate in all ways with the sale of the home, including reasonable showings of the same, and open houses, if recommended by the broker.
Upon sale, existing liens and bills associated with the property, together with all usual and customary costs, taxes, commissions and fees associated with the sale shall be paid out of the gross sale proceeds. The remaining amount shall constitute the "net proceeds" of the sale. Husband shall then be entitled to deduct his $ 227,297 separate property credit and the $ 500 in child support arrears owed to him "off the top" of the net proceeds. The resulting remainder shall constitute the adjusted net proceeds, which shall be distributed 55% to Wife and 45% to Husband.
b. Motor Home
Wife attempted to establish that she is entitled to one half of $ 12,000 allegedly received from the sale of a motor home that she claims Husband owned. However, Wife offered no evidence in support of this claim. Husband credibly testified that he did not own this vehicle, and rather that it was owned by his late father and stored at his late brother's house. This testimony was supported by a title document that named Husband's father as the owner. (Pl. Ex. 4, Tr. 1/24/18 pg. 24). Husband admitted that he was authorized to use the motor home from time to time. After his brother's passing, Husband's only involvement with this motor home was helping his sister in law dispose of it. Husband credibly testified that the motor home was "junked" for no profit. Moreover, it actually cost his sister in law approximately $ 800 to have it removed from the property. (Tr. 1/18/18 pg. 99).
As Wife failed to establish that the motor home was marital property subject to distribution, and further failed to establish a value of the vehicle, and after crediting Husband's testimony regarding the same, the Court declines to make a distribution due to a basic failure of proof. See Fu Kuo Hsu v. Hsuan Huang , 149 AD2d 405 (2d Dept. 1989) ; See also, Barnhart v. Barnhart , 148 AD3d 1264 (3rd Dept. 2017).
c. Businesses
At trial, both parties attempted to establish that the other owned a business that could potentially be subject to equitable distribution or be regarded as a source of income. However, both parties failed to meet their burden of proof in this regard.
Wife attempted to establish that Husband owns a landscaping and snow removal business known as "Vintage Landscaping" but she offered no documentary evidence or credible testimony regarding the same. While his testimony on the subject was at times confusing, Husband indicated that he historically worked for his late brother's landscaping business, and that for one seven-month season in 2014 he utilized the name "Vintage Grass Cutters" to earn approximately $ 700 a month on the side. (Tr. 1/18/18 pgs. 111-112). Regarding snow plowing, Husband credibly testified that his truck is immobilized in his driveway, and his plow rusted beyond repair. Husband credibly testified that he has not plowed snow in a considerable amount of time and does not currently generate any income from his truck. Wife offered no evidence or credible testimony to counter these assertions made by Husband. Moreover, despite any involvement Husband previously had with "Vintage Grass Cutters," or any other landscaping or snow removal business in the past, he credibly testified that he currently has no business interests whatsoever and has not for some time.
Similarly, Husband attempted to establish that Wife and her alleged boyfriend co-own an internet business that is somehow involved with marketing a bracelet that tracks its user's health. Husband discovered Wife's involvement with this business from his children, who came home from a visit wearing promotional advertisement shirts given to them by their mother. While Wife vehemently denied that she is romantically involved with her business partner, she admitted that she is in the early stages of developing this business which she identified as "HELO Global Network." (Tr. 1/18/18 pg. 35). Despite the fact that Wife admits that she co-owns some aspect of this business entity, Husband failed to establish when the business was created, and further failed to establish any value for the same.
In short, no credible evidence was offered by either party to allow this Court to make a distribution of either of the businesses alleged in this proceeding. No businesses were valued as part of the pre-trial proceedings, and no party offered evidence, expert or otherwise, regarding the value of any business at trial. Accordingly, any claim to an equitable portion of either business is hereby denied due to a basic failure of proof. See Post v. Post , 68 AD3d 741 (2d Dept. 2009) ; See also, Antoian v. Antoian , 215 AD2d 421 (2d Dept. 1995) .
d. Personalty
Wife has indicated that she left various belongings in the former marital home and that she has been unable to retrieve the same. However, Husband credibly testified that when Wife vacated the residence, she took everything she wanted with her in a U-haul truck, including most of the furniture, and the silverware. (Tr. 1/18/18 pg. 97).
When given the opportunity to detail the items that she wishes to obtain from the house Wife indicated that she wanted her dog, and a cast iron clock. During the course of the trial Husband agreed that Wife could take the dog, which she did. Husband also allegedly gave her the cast iron clock. (Tr. 1/24/18 pg. 31). To the extent that the same has not been exchanged, Husband is hereby directed to facilitate the transfer of the clock to Wife within 20 days of the signing of a Judgment of Divorce incorporating this Decision.
The record is devoid of any mention of specific personality other than the items indicated above. Moreover as it has been over two years since Wife resided in the house, this Court cannot identify relevant items for distribution. Accordingly, as the current resident thereof, Husband shall be entitled to keep the current contents of the house. Similarly, Wife shall be entitled to keep any personalty currently in her possession.
e. Stocks
Throughout trial, Wife made repeated references to "Penny Stocks" that were allegedly purchased by Husband during the marriage. At first, Husband argued that he owned no such stocks. However, he later clarified his testimony and indicated that he did own penny stocks, but that the companies all went out of business, and that the stocks had no value by the time this action commenced. (Tr. 1/24/18 pg. 14-15). Husband further testified that all the penny stocks that he ever owned had a total value of $ 200-300 .
While Husband's testimony on the subject of his penny stock holdings was self- contradictory, Wife's testimony provided no better understanding of what stocks the parties owned, or what happened to those holdings. Wife offered no evidence as to the nature of these stocks, their ownership, or their value. In fact, when directly asked if she had any evidence as to the existence or value of penny stocks when this action commenced, she indicated that she did not. (Tr. 1/24/18 pg.85). In any event, any claim for stocks made by Wife was already resolved by a Court Ordered payment of $ 2,000 in the early stages of this proceeding. (See SFO 8/24/16, Jud. Not. 11).
f. Charging Lien
On or about December 13, 2017, Wife's former attorney Jay Baum Esq. filed an Order to Show Cause (Mot. Seq. No. 005) wherein he requested permission to withdraw as counsel, together with a request for a charging lien for services rendered on Wife's behalf throughout this action. On December 19, 2017, Wife consented to allow Mr. Baum's withdraw as counsel and further consented to the imposition of a charging lien in the amount of $ 31,253 . (See SFO 12/19/17 Jud. Not. 7).
Pursuant to Judiciary Law § 475, an attorney in an action or proceeding has a statutory lien against his or her client's cause of action. This lien, known as a "charging lien," does not provide for an immediately enforceable judgment, like a money judgment, but rather provides a security interest against an asset, i.e., a judgment or settlement in their client's favor. See Bernard v. De Rham , 161 AD3d 686 (1st Dept. 2018) . In the context of a matrimonial proceeding, a charging lien is available to the extent that an equitable distribution award creates an award for the client "greater than the value of the interests already held." See Charnow v. Charnow , 134 AD3d 875 (2d Dept. 2015) . A charging lien is only payable when an attorney is discharged without cause as was the case here. See Sprole v. Sprole , 151 AD3d 1405 (3rd Dept. 2017) .
As per this Decision, Wife succeeded in obtaining 55% of the equity in the former marital home, and as such, Mr. Baum shall be entitled to the sum of $ 31,253 payable to him "off the top" of any proceeds distributed to Wife by Husband in a buyout, or at closing if the house is sold to a third party. A redacted copy of this Decision shall be forwarded to Mr. Baum, as former counsel, so that he can be advised of his right to recovery herein.
Motions Referred to Trial
During the course of this proceeding a number of motions, or unresolved aspects thereof, were referred to trial. Among these applications were motion sequence number 001, filed by Plaintiff, motion sequence number 004, filed by Defendant, motion sequence number 006, filed by Plaintiff, and motion sequence number 007, filed by Defendant.
All of the issues raised in the motions indicated above have been addressed, resolved, or mooted by this Decision after Trial. However, certain issues in motion sequence numbers 006 and 007 were raised for the first time after both parties rested and the trial record was closed. Accordingly, those applications, which should have been supported by testimony and evidence at trial, were not considered by this Court to the extent they are not supported by the record. Neither motion sequence number 006 or 007 were framed as CPLR § 4404 motions to reopen the trial record to address new evidence that was somehow unavailable during trial. See Matter of John Jay Coll. of Crim. Justice of the City Univ. of NY , 74 AD3d 460 (1st Dept. 2010) .
Conclusion
For the detailed reasons set forth above, a Judgment of Divorce is hereby granted to Plaintiff Husband on the grounds that the marriage has broken down irretrievably pursuant to DRL § 170(7). As to ancillary relief; Husband is granted sole physical and legal custody of the parties' two children N.S. and V.S., subject to Wife's visitation schedule as set forth herein. Wife's application for maintenance is denied on the ground that any award would reduce Husband's income below the self-support reserve. Husband's application for child support is granted in the statutory minimum amount of $ 25 a month. The equitable distribution of the assets that the parties accumulated during the marriage shall be distributed as delineated herein. Both parties' cross family offense causes of action are dismissed due to a failure of proof. Wife's prior counsel's charging lien, to which Wife consented, shall be enforced out of the equitable distribution proceeds payable to Wife.
All other issues not specifically addressed or decided herein are hereby denied. The Court has considered all pending motions that have been referred to this trial and finds that they have been adjudicated by the terms of this Decision. To the extent that any application has been referred to trial, and not specifically addressed herein, that application has been denied.
Defendant Husband is hereby directed to file a Judgment of Divorce together with Findings of Fact and Conclusions of Law, annexing this Decision, within 30 days. Counsel is directed to file the Judgment of Divorce directly to chambers.
This constitutes the Decision of the Court.