Opinion
Index No. 66160/2022
10-20-2023
J.M-C, Plaintiff, v. S.C., Defendant.
Unpublished Opinion
JAMES L. HYER, J.
BASIC BACKGROUND & PROCEDURAL HISTORY
The parties to this matter were married on August 2, 2002, in New Rochelle, New York, in a religious ceremony. Together, they have two unemancipated children: (1) N.C. (born XX/XX/2014); and (2) Z.C. (born XX/XX/2008) (hereinafter referred to as the "Children"). No further children of the marriage are expected.
Plaintiff commenced this matrimonial action on October 3, 2022, with the filing of a Summons with Notice and Verified Complaint. In Paragraph 9 of the Verified Complaint, Plaintiff asserts:
The grounds for divorce, in accordance with Domestic Relations Law § 170(7) are as follows:
Irretrievable Breakdown in Relationship for at Least Six Months (DRL § 170(7))
a. That the relationship between Plaintiff and Defendant has broken down irretrievably for a period of at least six months.
The Complaint then requests judgment be entered against Defendant, dissolving the marriage between the parties to this action, and granting the following relief:
A. Granting to Plaintiff a judgment of absolute divorce dissolving the bonds of matrimony between Plaintiff and Defendant forever on the grounds that the marriage has broken down irretrievably for at least a six-month period; adultery, and cruel and inhuman treatment;
B. Directing sole legal custody of the subject children to be awarded to Plaintiff and Defendant;
C. Directing physical custody of the subject children to be awarded to the Plaintiff;
D. Directing that the Defendant has reasonable visitation with the children under the age of 18 away from the custodial residence;
E. Awarding attorney fees and cost for the Plaintiff as the Court deems just and proper;
F. That the Marital Property and Assets shall be equitably distributed;
G. Providing that Plaintiff may resume use of her pre-marriage surname, Manning or any other surnames;
H. Providing that any future issues of maintenance, custody, visitation and child support may be heard by this Court, the Family Court or any other Court of competent jurisdiction;
I. Directing an order of child support and reasonable spousal support in favor of the Plaintiff, which shall include extra-curricular activities for the subject children and tuition costs;
J. Directing Defendant to purchase and/or maintain a policy of insurance on Defendant's life and name Plaintiff and the parties' minor children as irrevocable beneficiaries thereof;
K. Granting any other relief as the Court deems just and proper.
On May 25, 2023, Plaintiff filed an Affidavit of Service of Althea Smith, indicating that the following documents were personally served upon Defendant on February 17, 2023: (1) Summons with Verified Complaint; (2) Notice of Entry of Automatic Orders; (3) Notice of Guideline Maintenance; (4) Notice Concerning Continuation of Health Care Coverage; and (5) Notice of Electronic Filing.
On May 25, 2023, Plaintiff's counsel filed a Request for Judicial Intervention seeking the scheduling of a Preliminary Conference.
On June 1, 2023, a Court Notice was issued scheduling a Preliminary Conference to be held on June 29, 2023, at 10:30 a.m. The Court notice indicated:
All parties and counsel are to appear IN PERSON in Courtroom 1003. Preliminary Conference Order shall be completed and uploaded to NYSCEF three (3) days prior to the conference. Counsel/self-represented litigants must bring to the conference the following: 1. The complete case file; 2. Completed child support and spousal support worksheets; 3. Any evaluation reports. Any requests for an adjournment or any issues related to this matter must be submitted in writing and uploaded to NYSCEF.
A Preliminary Conference was held on June 29, 2023, wherein appearances were made by Plaintiff, Plaintiff's counsel, and the self-represented Defendant, after which the Court entered a Preliminary Conference Order. The Preliminary Conference Order set forth a discovery schedule and directed:
The Court directs that the parties and their respective Counsel are to appear at a compliance conference to be held on September 15, 2023 at 9:00 a.m. All discovery set forth herein above is expected to be completed prior to the compliance conference. At the conference, counsel shall also be prepared to discuss settlement.
On June 29, 2023, as directed by the Court, Plaintiff's counsel filed three Orders entered pertaining to the parties to this action. The first was entered on June 15, 2023, being an Order of Custody Upon Default entered by the Hon. Arlene A. Gordon-Oliver of the New York State Family Court, Westchester County, within a proceeding known as [Redacted], File No. [Redacted] and Docket Nos. [Redacted], granting Plaintiff sole legal and physical custody of the Children (hereinafter referred to as "Custody Order").
The second was entered on June 15, 2023, being an Order of Protection Upon Default entered by the Hon. Arlene A. Gordon-Oliver of the New York State Family Court, Westchester County, within a proceeding known as [Redacted], File No. [Redacted] and Docket No. [Redacted] (hereinafter referred to as "Order of Protection"). This Order of Protection directed Defendant to stay away from Plaintiff and the Children; to stay away from the home, school and place of employment of Plaintiff and the Children; to refrain from communication with Plaintiff and the Children; to refrain from assault, stalking, harassment, aggravated harassment, menacing, reckless endangerment, strangulation, criminal obstruction of breathing or circulation, disorderly conduct, criminal mischief, sexual abuse, sexual misconduct, forcible touching, intimidation, threats, identity theft, grand larceny, coercion, unlawful dissemination or publication of intimate image(s) or any criminal offense against Plaintiff and the Children. This Order of Protection was ordered to remain in effect until June 14, 2025.
The third was entered on May 1, 2023, by the Hon. Carol Ann Jordan of the New York State Family Court, Westchester County, within a proceeding known as [Redacted], File No. [Redacted], Docket No. [Redacted], and CSMS No. [Redacted] (hereinafter referred to as "Order of Support"), directing Defendant pay to Plaintiff the following through the Support Collections Unit: (1) basic child support in the amount of $1,350.00 per month; (2) child care in the amount of $115.00 per week; and (3) $22,018.88 in retroactive support. The Order of Support also directed that health insurance coverage shall be provided for the Children by both Plaintiff and Defendant for as long as such health insurance plans remain available.
On July 11, 2023, a so ordered transcript from the Preliminary Conference was filed (hereinafter referred to as the "PC Transcript") which confirms Defendant was sworn in and provided his contact information on the record, including: (1) Address: [Redacted], Pelham, New York; (2) Telephone Number: [Redacted]; (3) E-Mail Address: [Redacted]. As Defendant was a self-represented litigant, he was provided with a copy of the Part Rules of the Hon. James L. Hyer, J.S.C., and a Self-Represented Litigant Information Sheet. The Court advised Defendant of his right to retain counsel and that if he decided to proceed as a self-represented litigant, he would be held to the same rules and responsibilities as any attorney who appear before the Court.
Defendant confirmed his understanding that if he proceeded as a self-represented party he would be held to the same rules and requirements as an attorney. Defendant was then presented with copies of the Custody Order, Order of Protection and Order of Support. The parties then confirmed that no marital agreements exist under the New York State Domestic Relations Law.
With respect to the property known as [Redacted], New Rochelle, New York (hereinafter referred to as the "Marital Domicile"), Plaintiff's counsel, Plaintiff, and Defendant made statements on the record as reflected by the PC Transcript:
MS. HALL: Your Honor, the reason for my filing of the RJI is my client's concern of the home. As we have continued an investigation, the parties do have a marital residence in the City of New Rochelle in which it's now in foreclosure. My client learned that it was in foreclosure a few months ago when she was served. That case is actually to be heard today at 11:15 before I believe it's Judge Malone. I just want the defendant to be aware of that as well.
MS. HALL: The father, which my client wasn't aware of, did change the owner of the home to a trust, and, as such, we are seeking to possibly break the trust in order for my client to be able to move forward in that action. I wasn't necessarily sure if this Court would consolidate that action, but they do have, she believes, quite a large amount of equity in the home. So it was very surprising to her that now the name on the deed is actually a trust, as opposed to the husband, which makes it a little more difficult.
THE COURT: When was the house first purchased?
[REDACTED]: I believe the closing was October 30, 2015.
THE COURT: At that point in time, what was listed on the deed as the oner?
[REDACTED]: The defendant's name.
THE COURT: And the date of the parties' marriage is?
[REDACTED]: August 2, 2002.
THE COURT: So your position is, is that regardless of how the property was titled, it was purchased during the marriage with marital funds, and because of that it's a marital piece of property?
MS. HALL: That is correct, Judge.
THE COURT: And when was it transferred to the name of this trust?
MS. HALL: It's our understanding that it was transferred, we are still doing research to make this determination, I reached out to the bank, approximately a year, approximately 15 months ago. My client had no knowledge of it.
THE COURT: Okay. Defendant, to the extent that this property was owned by you and it was taken by title by you in 2015, did you transfer this to a family trust?
[REDACTED]: I sold it to a family trust, correct.
THE COURT: You did. Do you have any of those documents?
[REDACTED]: No, I do not.
THE COURT: You don't have any of the transfer documents?
[REDACTED]: I don't have them here.
THE COURT: But do you have them in general?
[REDACTED]: I have them, yes.
THE COURT: Did you utilize a lawyer to do all of those transfers?
[REDACTED]: Excuse me?
THE COURT: Did you use a lawyer to do those transfers, sir?
[REDACTED]: Did I use a lawyer?
THE COURT: Did you use a lawyer to draft the trust and to complete the real property transfer?
[REDACTED]: Yes, I did.
THE COURT: Do you know who you used?
[REDACTED]: I don't have the attorney's name.
THE COURT: Do you have that at home with your documents?
[REDACTED]: Yes.
THE COURT: As part of this process, you are going to be directed to turn that over to the other side. I am going to direct that you do all of that by July 7th. That should be received in hand by the other side by July 7th. To be clear, all documents pertaining to the ownership, any liens or transfers pertaining to that property. You should file an affidavit of service by July 7th indicating that that has been served upon opposing counsel by overnight delivery, with a copy of the tracking slip. Do you have Plaintiff's attorney's information?
[REDACTED]: Yes, I do.
THE COURT: Just for the record, if you can, please do you have a copy of your card with you?
MS. HALL: I do. I will give him one. But I have received packages from the defendant.
THE COURT: I want to make sure on the record that he receives a copy of your card, and if you can just read your address on the record.
MS. HALL: Chrstina T. Hall, 600 Mamaroneck Avenue, Harrison, New York Fourth Floor, 10528.
THE COURT: One more question for you, Defendant. With respect to that trust, who is the trustee of the trust?
[REDACTED]: It's private. It's a private trust.
THE COURT: Sir, I am asking you under oath, sir, who is the trustee is named in that trust that you created?
[REDACTED]: It's a private trust.
THE COURT: Who is the trustee, sir?
[REDACTED]: It's a private trust, Your Honor.
THE COURT: I am asking who the trustee -
[REDACTED]: It's outside of the United States.
THE COURT: Sir, I am asking who the trustee is.
[REDACTED]: It's outside of the United States, Your Honor. It's in Bridgetown, Barbados. It's a private trust.
THE COURT: Did you create the trust?
[REDACTED]: No I did not.
THE COURT: That property was under your name, and I see here that you executed documents to transfer the trust. So your testimony before this Court, and I am going to ask you to think very carefully about how you respond now, is that you did not sign that trust document?
[REDACTED]: If I signed the trust document?
THE COURT: Correct.
[REDACTED]: I transferred the trust over to the Campbell Family Trust. I am not the owner of the trust.(NYSEF Doc. No. 18 at Page 19, lines 23-25; Page 20, Lines 1-6, 25; Page 21, Lines 1-25; Page 22, Lines 1-6; Page 23, Lines 5-25; Page 24, Lines 1-25; Page 25, Lines 1-2; Page 28, Lines 16-25; Page 29, Lines 1-21).
On July 14, 2023, Plaintiff filed a 68-page Statement of Net Worth. Pages 65 to 68 are a Westchester County Recording & Endorsement Page (hereinafter referred to as the "Recording Page") and Deed pertaining to the Marital Domicile (hereinafter referred to as the "Deed"). The Recording Page pertains to the Deed for the Marital Domicile, dated October 30, 2015, filed under Westchester County Clerk Control Number [Redacted] on November 9, 2015, listing the party of the first part as [Redacted] and Defendant as party of the second part with a consideration for the transfer of $465,000.00.
On August 4, 2023, Defendant filed a document entitled "Claim of Alleged: Criminal Conduct, Mortgage Fraud, Conspiracy and Misrepresentations to Achieve Unjust Enrichment, and a Formal Dispute of Debt Claim/Challenge."
On August 11, 2023, Defendant filed a 40-page document entitled, "Notice of Right to Access Government A Petition for Redress Via Appeal Enforcing The Right to Challenge the Statute and/or Rules of Court As Unconstitutional/Not Properly Enacted!!!!" And on August 23, 2023, Defendant filed a one-page document entitled "Writ to Transfer to Article III Court of Equity."
On September 15, 2023, the Court held a Compliance Conference at which Plaintiff and Plaintiff's counsel appeared, but Defendant did not. The Court noted that Defendant failed to file a responsive pleading and Statement of Net Worth.
On September 18, 2023, the Court entered an Order of Inquest, directing the following:
On September 15,2023, Defendant engaged in a default and an inquest was directed.
It is hereby ORDERED that:
1. September 18, 2023 - Deadline for Plaintiff to serve Defendant with a copy of the Order scheduling the Inquest, with service to be completed in the following manner: (1) Overnight delivery to [Redacted], Pelham, New York; (2) Text message with date, time and location of Inquest and copies of images of the Inquest scheduling Order, to [Redacted]; and (3) E-mail to [Redacted] and [Redacted]. Plaintiff shall file an Affidavit of Service with copies of the text message, e-mail and overnight mail tracking slip by September 18, 2023.
2. September 19, 2023 - Deadline for Plaintiffs counsel to file a transcript from today's conference, with Plaintiff providing payment for the cost of the transcript.
3. September 22, 2023 - Deadline for parties to file: (1) List of Witnesses to be called at Inquest; (2) List of Exhibits to be marked for identification at Inquest; (3) Copies of exhibits to be marked for identification at Inquest. Plaintiff is directed to e-mail a copy of these documents to Defendant by September 22, 2023 and to file an Affidavit of Service with a copy of the e-mail.
4. September 28, 2023 - Inquest will be held at 2:00 p.m. in person in Courtroom 1003.
On September 25, 2023, the Court so ordered the transcript from the September 15, 2023 Compliance Conference.
On September 27, 2023, Plaintiff's counsel filed a witness list indicating two witnesses would be called to provide testimony at the Inquest being the parties, and an exhibit list with copies of such exhibits filed, including:
1. Family Court - Order of Support dated May 1, 2023
2. Family Court - Order of Protection dated June 15, 2023
3. Family Court - Order for Custody Upon Default dated July 6, 2023
4. Plaintiff's Statement of Net Worth
5. Plaintiff's Tax returns (2021 and 2022)
6. Home Appraisal Report dated September 5, 2023
7. Foreclosure-Summons and Complaint
8. Foreclosure-RJI
9. Foreclosure - Decision and Order dated July 25, 2023
10. Foreclosure - Notice of Motion dated August 25, 2023, plus supporting documents
11. Plaintiff's Bank Statements 2021-2022
On September 28, 2023, Plaintiff's counsel filed an Affidavit of Service of Michael Smith indicating that on September 18, 2023, Defendant was served with an Order of Inquest by mail to [Redacted], Pelham, New York 10805. On September 28, 2023, Plaintiff's counsel filed an Affirmation of Service of Plaintiff's counsel advising that an Order of Inquest was served upon Defendant by e-mail to [Redacted] and via text message to [Redacted].
On September 28, 2023, an Inquest was held as scheduled by the Court, wherein appearances were made by Plaintiff and Plaintiff's counsel, with no appearances by Defendant or any legal counsel representing Defendant. The Court was not in receipt of any requests for extensions or adjournments from Defendant. Because the Court was in receipt of Defendant having been served with Notice of the Inquest in three separate manners, the Inquest proceeded. The Court set October 13, 2023 as the deadline to file Post-Trial Submissions.
On October 3, 2023, a copy of the Inquest Transcript was so ordered.
On October 13, 2023, Plaintiff's counsel filed a letter with the Court requesting an extension of time to file a Post Trial Submission and the Court granted an extension to do so by October 18, 2023. Despite the extension being granted, no Post Trial Submissions were received by the Court.
TRIAL TESTIMONY AND DOCUMENTS IN EVIDENCE
As noted above, an Inquest was held on this matter where appearances were made only by Plaintiff and Plaintiff's counsel, with Defendant failing to appear.
Trial Exhibits:
At Inquest, the following exhibits were admitted into evidence by Plaintiff:
1. Family Court - Order of Support dated May 1, 2023
2. Family Court - Order of Protection dated June 15, 2023
3. Family Court - Order for Custody Upon Default dated July 6, 2023
4. Plaintiff's Statement of Net Worth
6. Home Appraisal Report dated September 5, 2023
7. Foreclosure - Summons and Complaint
8. Foreclosure - RJI
9. Foreclosure - Decision and Order dated July 25, 2023
10. Foreclosure - Notice of Motion dated August 25, 2023, plus supporting documents
Plaintiff's Exhibits 5 and 11 were only marked for identification, they were not moved into evidence.
Plaintiff's Testimony
Plaintiff testified that she married the Defendant in August of 2001 or 2002 in a religious ceremony in New Rochelle, New York. She testified that she and Defendant are the Children's parents, who are currently enrolled in public school. She and Defendant are both over 18 years of age and have resided in New York State for more than two years prior to the filing of this action for divorce.
She testified that before the commencement of this action for divorce, there were other proceedings commenced in the New York State Family Court. She received an Order of Support, identified as Plaintiff's Exhibit No.1 which was admitted into evidence. Plaintiff testified that she has not received any payments from Defendant pursuant to this Order of Support. She testified that Defendant was ordered to continue to provide medical insurance coverage for the Children. Plaintiff is requesting that this Court direct that the Order of Support remain in effect.
Plaintiff then testified that she received an Order of Protection, benefitting her and the Children, identified as Plaintiff's Exhibit #2 which was admitted into evidence. She testified that there have been no modifications to this Order of Protection. Plaintiff stated that Defendant violated this Order of Protection, including on August 25, 2023, and on another date in August 2023, when Defendant was outside her home. She is requesting that this Court direct that the Order of Protection remain in effect. Plaintiff testified that she received a Custody Order granting her sole custody of the Children, with Defendant having no access until granted by the Court. Plaintiff identified the Custody Order as Plaintiff's Exhibit #3, and it was admitted into evidence.
Currently, Plaintiff is in her second year employed as the Superintendent of Schools for the [Redacted]. Previously, Plaintiff was employed as the Assistant Superintendent of Schools for the [Redacted]. She testified that her current salary is $285,000.00, and Defendant does not assist her with household expenses.
Plaintiff lives in the home that she purchased on October 30, 2015. The funds utilized for this purchase came from her bank account, funds borrowed from her parents, and $16,000.00 from Defendant's 401K retirement account. Plaintiff testified that the title was placed solely in Defendant's name. Plaintiff retained Lane Appraisals to value the home and identified Plaintiff's Exhibit #6 as the Appraisal Report which was admitted into evidence. The Appraisal Report reflects a fair market value of the Marital Domicile, as of September 5, 2023, to be $750,000.00.
Plaintiff testified that the home's mortgage is in foreclosure and that she discovered this when someone was attempting to serve a trust at her home. Plaintiff identified Plaintiff's Exhibit #7 as a Summons and Complaint for an action commenced in New York State Supreme Court, County of Westchester, entitled Newrez LLC d/b/a Shellpoint Mortgage Servicing v [Redacted] (hereinafter referred to as the "Foreclosure Complaint"), filed under Index Number [Redacted] (hereinafter referred to as the "Foreclosure Action"), which was admitted into evidence. The Foreclosure Complaint alleges, inter alia, the following:
"4. Upon information and belief, Defendant [REDACTED] is the mortgagor pursuant to the Subject Mortgage as modified. At all relevant times, mortgagor maintains a residence within the State of New York. The description and interest of the above-referenced Defendant(s) is more fully set forth in Schedule "B". See RPAPL §§ 1311, 1312, and 1313.
7. On or about October 30, 2015, [REDACTED] duly executed, acknowledged, and delivered a note (hereinafter referred to as the "Subject Note"), wherein and whereby [REDACTED] promised to repay the sum of $372,000.00 in monthly payments plus interest, taxes, assessments, leasehold payments or ground rents (if any), together with hazard and mortgage insurance as more fully set forth therein. Annexed hereto as Exhibit "A" is a copy of the Subject Note.
8. On or about October 30, 2015, as collateral and to secure the repayment of the sum represented by the Subject Note, [REDACTED] duly executed, acknowledged and delivered to the Plaintiff or Plaintiff's assignor a mortgage in the same amount, which was recorded on November 9, 2015, in Control Number [Redacted] in the public records of Westchester County, New York (hereinafter referred to as the "Subject Mortgage"), and the mortgage tax was duly paid.
9. On or about June 7, 2021, [REDACTED], duly executed, acknowledged and delivered to the Plaintiff or Plaintiff's assignor a loan modification agreement in the amount of $360,669.91, which was recorded on July 8, 2021, in Control Number [Redacted] in the public records of Westchester County, New York (hereinafter referred to as the "Loan Modification"), and the mortgage tax was duly paid.
10. Plaintiff, directly or through an agent maintains physical and/or constructive possession of the Subject Note as modified, which Note is secured by the Subject Mortgage as modified, and the Subject Note as modified is made either payable to Plaintiff or is duly indorsed having been delivered to Plaintiff and/or such party having delegated authority to Plaintiff, prior to the commencement of the instant action.
11. The Subject Mortgage as modified secures the real property commonly known as [REDACTED], NEW ROCHELLE, NY 10804 and by [Redacted], together with all fixtures, appurtenances, and articles of personal property annexed thereto, installed therein, or used in connection with the Subject Property in addition to all right, title, and interest of the Defendants in and to the land lying in the streets and roads in front of and adjoining said Subject Property. Annexed hereto as Schedule "A" is a copy of the legal description.
12. Thereafter, the Subject Mortgage as modified was transferred to Plaintiff via an Assignment of Mortgage, thereby memorializing delivery of the Subject Note as referenced hereinabove.
13. Now, as the owner and/or holder of the Subject Note and Subject Mortgage as modified, or having been delegated the requisite authority to commence a mortgage foreclosure action by the owner and/or holder of the Subject Note and Subject Mortgage, Plaintiff further complains and alleges upon information and belief as follows:
15. That [REDACTED] defaulted on her obligation having failed to comply with the conditions of the Subject Note as modified by withholding the payment amount that became due on March 1, 2022, and Plaintiff is entitled to enforce its security interest pursuant to the terms of the Subject Mortgage as modified. As of August 2, 2022, said default has not been cured. There is now the amount of $357,630.10, plus interest, taxes, assessments, leasehold payments or ground rents (if any), together with hazard and mortgage insurance, if applicable, due and owing to Plaintiff.
Plaintiff testified that she never provided Defendant permission to change the ownership of the home. Plaintiff's Exhibit #8 was admitted into evidence being a Request for Judicial Intervention in the Foreclosure Action. Plaintiff then testified as to a Decision and Order of the Hon. Janet C. Malone, J.S.C., entered on July 24, 2023, marked for identification as Plaintiff's Exhibit #9 which was admitted into evidence.
Plaintiff testified that she was served with a Motion to confirm the referee's report and for a judgment of foreclosure and sale, identified as Plaintiff's Exhibit #10 which was admitted into evidence. Plaintiff's Exhibit #10 included Exhibit L, being an Affidavit of Indebtedness of Emma Charles, an employee of Plaintiff in the Foreclosure Action which included the following sworn statement:
11. According to the Records, the following amounts are due and owing pursuant to the Subject Note as modified and Subject Mortgage as modified:
Unpaid Principal Balance:
$357,630.10
Interest (at date of default 4.33%) from
$12,759.54
2/1/2022 Through 11/28/2022:
(Per Diem Interest: $42.43)
Late Charges:
$126.56
Taxes:
$107,886.59
Insurance:
$21,002.00
Escrow Balance at Loan Transfer:
($5,358.78)
Escrow Disbursements:
$4,765.35
ADDITIONAL COSTS:
Recording Fees:
$840.11
Credits:
($112,128.22)
GRAND TOTAL AS OF 11/28/2022:
$387,523.25
Plaintiff then testified that she completed a Statement of Net Worth, identified her Statement of Net Worth as Plaintiff's Exhibit #4 which was admitted into evidence. Plaintiff testified that there is an outstanding balance on the mortgage of her home of $415,000.00, leaving an equity in the home in an amount in excess of $300,000.00. Plaintiff requested that the Court permit the sale of the home, permit Plaintiff to facilitate that process, and direct that the net proceeds be held in escrow pending further resolution. With respect to the net proceeds, Plaintiff requested that she receive all the net proceeds because Defendant has abandoned the home. She further testified that before Defendant abandoned the home, he did not work a traditional schedule, and she "shouldered the majority of the bills."
Plaintiff testified that she drives a 2022 Lexus SUV and that Defendant does not contribute to the finances of her car. Plaintiff testified that Defendant drives a 2006 Porsche Cayenne SUV. Plaintiff requested that the Court permit both parties to retain ownership of their respective vehicles, with the other having no rights to same.
Plaintiff testified that she has a Chase Checking Account with a balance of approximately $60,000.00. Plaintiff testified that she is aware Defendant has bank accounts that he solely own and are not held jointly with her. Plaintiff requested that the Court permit both parties to retain the funds held in their own financial accounts, with the other having no rights to same.
Plaintiff testified that her prior surname is "[Redacted]". She is asking that the Court permit the use of her prior surname if she decides to do so. Plaintiff also testified that she has removed all barriers to Defendant's remarriage. Plaintiff requests that the Supreme Court and Family Court retain concurrent jurisdiction for issues pertaining to custody, access, and support. Plaintiff retained her own counsel, has paid her counsel, and is waiving any application to have Defendant pay for her attorneys' fees.
Plaintiff testified that she has a 403(b) Retirement Account and a New York Retirement System Pension, both through her employer. Plaintiff testified that Defendant has a 401(k) Retirement Account. Plaintiff requests that the Court award each party sole interest in their respective retirement accounts, with the other having no rights to same.
Plaintiff is asking the Court to direct Defendant to obtain life insurance for a minimum face amount of $350,000.00, listing the Children and Plaintiff as beneficiaries. Finally, Plaintiff testified that due to her fear of Defendant she be permitted to have a confidential address when she relocates and that she be permitted to relocated in an area with an unrestricted radius.
Plaintiff's Counsel Closing/Applications
Plaintiff's counsel made applications, including:
1. To conform the facts of the pleadings as this Court heard them thus far.
2. To permit the continuation of the Support Order, Custody Order and Order of Protection.
3. To either consolidate the foreclosure proceeding or determine the way the home may be listed for sale by Plaintiff.
4. With respect to the equitable distribution of the home, that the Court enter a Decision what is just and fair.
5. With respect to Defendant's alleged non-compliance with any entered Family Court Orders, that Plaintiff not waive her rights with respect to alleged violations.
FINDINGS OF FACT & CONCLUSIONS OF LAW
a. Grounds for Divorce
Pursuant to New York State Domestic Relations Law § 170(7):
An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:
(7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.
A spouse's statement under oath that the marriage was irretrievably broken for a period of six months is, by itself, sufficient to establish a cause of action for divorce as a matter of law (see Hoffer-Adou v Adou, 121 A.D.3d 618, 619 [1st Dept 2014]).
Based upon the submissions to this Court and the testimony and evidence received at trial, Plaintiff's request is granted to the extent that she is seeking that a judgment be entered granting a divorce in her favor and against Defendant, dissolving forever the bonds of matrimony existing between Plaintiff and Defendant upon the ground of the Irretrievable Breakdown of the Relationship pursuant to DRL § 170(7).
b. Custody & Access of the Parties' Children
The Appellate Division Second Department has noted the manner child custody determinations are to be made:
The court's paramount concern in any custody dispute is to determine, under the totality of the circumstances, what is in the best interests of the child (Matter of Gooler v. Gooler, 107 A.D.3d 712, 712, 966 N.Y.S.2d 208, quoting Matter of Julie v. Wills, 73 A.D.3d 777, 777, 899 N.Y.S.2d 669; see Eschbach v. Eschbach, 56 N.Y.2d 167, 171, 451 N.Y.S.2d 658, 436 N.E.2d 1260). In determining an initial petition for child custody, the court must consider, among other things, "(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires" (Matter of Supangkat v. Torres, 101 A.D.3d 889, 890, 954 N.Y.S.2d 915). Custody determinations depend to a great extent upon an assessment of the character and credibility of the parties and witnesses, and deference is accorded to the Family Court's credibility findings (see Matter of Frankiv v. Kalitka, 105 A.D.3d 1045, 963 N.Y.S.2d 393). The court's custody and visitation determination will not be disturbed unless it lacks a sound and substantial basis in the record (see id.; Matter of Andrews v. Mouzon, 80 A.D.3d 761, 763, 915 N.Y.S.2d 604).(Gibson v Gibson, 152 A.D.3d 592 [2d Dept 2017] [quotation marks omitted]).
Pursuant to Family Court Act § 447(b), any order of the family court under this section shall terminate when the supreme court makes an order of custody or of visitation concerning the children, unless the supreme court continues the order of the family court.
In making this determination here, the Court has considered numerous factors as to what custody and access arrangement would serve the Children's best interests, including, but not limited to: (1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well-being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires.
Based upon the submissions to this Court and the testimony and evidence received at trial, Plaintiff's request is granted to the extent that the Custody Order entered by the Family Court shall remain in full force and effect without any modification or other action being taken by this Court with respect to that Order in that Plaintiff shall have sole legal and physical custody of the Children.
c. Plaintiff's Request That the Family Court Order of Protection Remain In Effect
Based upon the submissions to this Court and the testimony and evidence received at trial, Plaintiff's request is granted to the extent that the Order of Protection entered by the Family Court shall remain in full force and effect without any modification or other action being taken by this Court.
d. Plaintiff's Request That the Child Support Order Remain In Effect
Based upon the submissions to this Court and the testimony and evidence received at trial, Plaintiff's request is granted to the extent that the Order of Support entered by the Family Court shall remain in full force and effect without any modification or other action being taken by this Court with respect to that Order.
e. Spousal Support and Maintenance
New York State Domestic Relations Law sets forth the way spousal maintenance and support shall be calculated, and the duration determined by the court (see Emmanuel D. v Ximena D., 73 Misc.3d 1208 [A] [Sup Ct, Kings County 2021]). Further, courts are permitted to award increased spousal support and maintenance to an abused spouse and the subject of domestic violence by the other (see J.N. v T.N., 77 Misc.3d 894 [Sup Ct, NY County 2022]).
This Court recognizes that the focus and purpose of awarding increased maintenance to an abused spouse is different than the focus and purpose of awarding an abused spouse a greater share of marital property. Maintenance is meant to remedy the abused spouse's diminished earning capacity as a result of the abuse and enable them to live a lifestyle similar to that enjoyed in the marriage. Jessica T. v. Kieth T., supra It simply cannot be the case that the equities prohibit the Court from taking into account the actions of an abusive spouse who is intent on ruining the other spouse's professional reputation, career, financial security, and health, simply because they have not yet totally destroyed their partner The fact that Wife is still gainfully employed despite Husband's unabated harassment and abuse should not bar application of DRL § 236 B (5)(d)(14) to this Court's analysis and conclusions as to equitable distribution of assets. Indeed, it is clear from this record that Husband's "main desire seems to be to inflict some sort of harm upon [Wife] in any manner possible as displayed throughout the entirety of this case." Jessica T. v. Kieth T., supra. His harassment did not stop at commencement but has continued and in fact accelerated over the past four years. By all accounts, this is an insidious case of domestic violence, the end of which has yet to be reached. Consequently, this Court is empowered to, and must on this record, find that Husband's acts resulted in "actual... emotional injury" and has "created a substantial risk of... emotional harm" to Wife, and has negatively impacted her professional reputation and career and threatened her ability to make a living. DRL § 236 B (5)(14).(J.N. v T.N., 77 Misc.3d at 933-934).
During the Inquest, Plaintiff's counsel requested, "Are you asking this Court to waive any interest any party may have in spousal support?" (See, Transcript Page 26, Lines 18, 19). Plaintiff Responded, "Yes." (See, Transcript Page 28, Line 20).
Based upon Plaintiff's submissions, along with the testimony and evidence received at the trial, as well as in Plaintiff's Post-Trial submission, the Court has determined that neither party shall be responsible for payment of spousal support or maintenance to the other.
f. Equitable Distribution of Marital Assets, Separate Property & Dissipation Claims.
The Appellate Division, Second Department has noted the way a trial court is to decide equitable distribution in the context of a matrimonial action:
The Equitable Distribution Law mandates that, whenever a marriage is terminated, absent an agreement of the parties, the court must determine the rights of the parties in their separate and marital property and provide for the disposition of the property in the final judgment (see Domestic Relations Law § 236[B][5][a]). In determining the equitable distribution of marital property, the court is required to consider 14 specific factors and may take into account any other factor the court finds just and proper (see Domestic Relations Law § 236[B][5][d]). The court is obligated to render a decision in which it sets forth the factors it considered and the reasons for its decision, a requirement that cannot be waived (see Domestic Relations Law § 236[B][5][g]). In the absence of express findings of fact and of a detailed discussion of the enumerated factors, meaningful appellate review is precluded and a remittal for further fact finding may be required (see Gape v. Gape, 110 A.D.2d 621, 487 N.Y.S.2d 111; see also Kluge v. Kluge, 159 A.D.2d 968, 552 N.Y.S.2d 771). Facts must be sufficiently developed at trial to enable a reasoned determination of the issues of equitable distribution and, if not, a new trial may be ordered (see Madu v. Madu, 135 A.D.3d 836, 837, 24 N.Y.S.3d 678; McLoughlin v. McLoughlin, 74 A.D.3d 911, 915, 903 N.Y.S.2d 467).(Kaufman v Kaufman, 189 A.D.3d 31, 52 [2d Dept 2020]).
The New York State Domestic Relations Law § 236[B][5] notes, in part, that:
b. Separate property shall remain such.
c. Marital property shall be distributed equitably between the parties, considering the circustances of the case and of the respective parties.
d. In determining an equitable disposition of property under paragraph c, the court shall consider:
(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
(2) the duration of the marriage and the age and health of both parties;
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(5) the loss of health insurance benefits upon dissolution of the marriage;
(6) any award of maintenance under subdivision six of this part;
(7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party. The court shall not consider as marital property subject to distribution the value of a spouse's enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, in arriving at an equitable division of marital property, the court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse;
(8) the liquid or non-liquid character of all marital property;
(9) the probable future financial circumstances of each party;
(10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
(11) the tax consequences to each party;
(12) the wasteful dissipation of assets by either spouse;
(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(14) whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts;
(15) in awarding the possession of a companion animal, the court shall consider the best interest of such animal. "Companion animal", as used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law; and
(16) any other factor which the court shall expressly find to be just and proper.
e. In any action in which the court shall determine that an equitable distribution is appropriate but would be impractical or burdensome or where the distribution of an interest in a business, corporation or profession would be contrary to law, the court in lieu of such equitable distribution shall make a distributive award in order to achieve equity between the parties. The court in its discretion, also may make a distributive award to supplement, facilitate or effectuate a distribution of marital property.
f. In addition to the disposition of property as set forth above, the court may make such order regarding the use and occupancy of the marital home and its household effects as provided in section two hundred thirty-four of this chapter, without regard to the form of ownership of such property.
g. In any decision made pursuant to this subdivision, the court shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel.
The Court is not required to engage in a "point-by-point catechistic discussion" of each factor under DRL § 236B(5)(d) (see Sykes v Sykes, 43 Misc.3d 1220 [A], *4 [Sup Ct, NY County 2014]). "There is no requirement that the distribution of each item of marital property be made on an equal basis (see DeSouza-Brown v Brown, 71 A.D.3d at 946, 897 N.Y.S.2d 228; Peritore v. Peritore, 66 A.D.3d 750, 752-753, 888 N.Y.S.2d 72; Griggs v. Griggs, 44 A.D.3d 710, 713, 844 N.Y.S.2d 351)" (Baumgardner v Baumgardner, 98 A.D.3d 929, 931 [2d Dept 2012]).
Separate property, which is an exception to marital property, is construed narrowly (see Fields v Fields, 15 N.Y.3d 158, 163 [2010]). The party claiming that an asset is separate property has the burden of proof on the issue (see DeJesus v DeJesus, 90 N.Y.2d 643, 652 [1997] ["statutory presumption that all property, unless clearly separate, is deemed marital property and must further recognize the titled spouse's burden to rebut that presumption."]; Saasto v Saasto, 211 A.D.2d 708, 709 [2d Dept 1995] ["A court is not bound by a party's own account of his or her finances, and where a party fails to trace the sources of money claimed to be separate property, the court is justified in treating it as marital property."]).
"The party alleging that his or her spouse has engaged in wasteful dissipation of marital assets bears the burden of proving such waste by a preponderance of the evidence (see Solomon v. Solomon, 307 A.D.2d 558, 561, 763 N.Y.S.2d 141; Strang v. Strang, 222 A.D.2d 975, 978, 635 N.Y.S.2d 786; Reidy v. Reidy, 136 A.D.2d 614, 615, 523 N.Y.S.2d 860)" (Epstein v Messner, 73 A.D.3d 843, 846 [2d Dept 2010]). To the extent a spouse engages in dissipation through the transfer of a marital asset to a party other than the other spouse, and there is no evidence of consideration for the transfer which is otherwise subject to equitable distribution between the parties, the spouse who did not engage in the transfer shall be entitled to half of the value of the asset transferred (see Cooper v Cooper, 52 A.D.3d 429, 430 [1st Dept 2008]).
With respect to retirement accounts, generally that portion of a pension's value that accrues during the marriage constitutes marital property subject to equitable distribution; however, the spouse seeking an equitable share of the participant spouse's retirement account is required to provide proof of the value of the retirement account and absent proof, will not be entitled to a share (see Seckler-Roode v Roode, 36 A.D.3d 889, 889-890 [2d Dept 2007]). To the extent one party has withdrawn funds from a retirement account after the commencement of a divorce action, the other is entitled to receive a credit for half of that amount (see Iacono v Iacono, 145 A.D.3d 972, 974 [2d Dept 2016]). With respect to the equitable distribution of real property, the court is required to determine the net equity of the property upon review of a current appraisal report and payoff statements for any liens against the real property (see Donovan v Szlepcsik, 52 A.D.3d 563, 563-564 [2d Dept 2008]).
Based upon the submissions made to this Court, along with the testimony and evidence received at the trial, and Plaintiff's Post Trial Submissions, the Court directs the following equitable distribution:
1. 2022 Lexus SUV - The Court awards Plaintiff sole title and ownership of the 2022 Lexus SUV. To effectuate the terms of this provision, the parties are directed to complete all documents to transfer title to the vehicle into Plaintiff's sole name by November 15, 2023. Plaintiff shall immediately be solely responsible for obtaining and paying for any automobile insurance or other carrying costs for the vehicle.
2. 2006 Porsche Cayenne SUV - The Court awards Defendant sole title and ownership of the 2006 Porsche Cayenne SUV. To effectuate the terms of this provision, the parties are directed to complete all documents to transfer title to the vehicle into Defendant's sole name by November 15, 2023. Defendant shall immediately be solely responsible for obtaining and paying for any automobile insurance or other carrying costs for the vehicle.
3. Financial Accounts - Plaintiff testified that she has one bank account being a Chase Bank Account with an approximate balance of $60,000.00, and that she has no bank accounts held jointly with Defendant. Plaintiff further testified that she is aware that Defendant has bank accounts. However, the Court is not in possession of any information pertaining to any possible financial accounts held by Defendant as he failed to participate in the discovery process and failed to appear for the Inquest. Plaintiff requested that both parties be awarded sole ownership of any financial accounts held in their respective names. The Court awards each party sole title and interest in all financial accounts titled in their respective names.
4. Retirement Accounts - Plaintiff testified that she has two retirement accounts being a New York State Pension and a 403(b) arising from her employment. Plaintiff further testified that Defendant has a 401(k). However, the Court is not in possession of any information pertaining to any possible retirement accounts held by Defendant as he failed to participate in the discovery process and failed to appear for the Inquest. Plaintiff requested that both parties be awarded sole ownership of any retirement accounts held in their respective names. The Court awards each party sole title and interest in all retirement accounts titled in their respective names.
5. Marital Domicile - The Court finds that the Marital Domicile is a marital asset as it was purchased and placed in title in the name of Defendant during the parties' marriage prior to the commencement of this action, and no separate property claims were asserted by the defaulting Defendant. This Court further finds that Plaintiff has proved by a preponderance of the evidence that Defendant engaged in a wasteful dissipation of the Marital Domicile by transferring the property to a trust for consideration of an unknown amount which was not subject to equitable distribution by this Court. This is the result of Defendant failing to comply with the discovery process and defaulting in this action. Consequently, the Court awards Plaintiff a sum equal to 50% of the equity in the Marital Domicile at the time of the Inquest, which the Court has determined to be $181,238.37, calculated in the following manner:
$750,000.00(Appraised value of the Marital Domicile)
$387,523.25(The amount calculated due to Plaintiff in the Foreclosure Action)
$362,476.75 ÷ 2 = $181,238.37
To effectuate this provision, Defendant shall provide Plaintiff with a certified bank check payable to Plaintiff in the amount of $181,238.37 by October 31, 2023. If such payment is not made timely, Plaintiff shall have leave to file with Notice of Settlement a proposed Money Judgment against Defendant for the benefit of Plaintiff for $181,238.37.
g. Counsel Fees
The Appellate Division, Second Department has noted how the trial court should determine if an award of attorneys' fees is warranted in a matrimonial action:
In a matrimonial action, an award of attorney's fees is a matter committed to the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case (see Prochilo v. Prochilo, 165 A.D.3d 1304, 84 N.Y.S.3d 786; Patete v Rodriguez, 109 A.D.3d 595, 599, 971 N.Y.S.2d 109). The purpose of Domestic Relations Law § 237(a) is to redress the economic disparity between the monied spouse and the nonmonied spouse by ensuring that the latter will be able to litigate the action on equal footing with the former (see Chesner v. Chesner, 95 A.D.3d 1252, 1253, 945 N.Y.S.2d 409; Finnan v. Finnan, 95 A.D.3d 821, 943 N.Y.S.2d 559; Prichep v. Prichep, 52 A.D.3d 61, 64-65, 858 N.Y.S.2d 667).
In determining whether to award attorney's fees, the court should review the financial circumstances of both parties, together with all of the other circumstances of the case, including, inter alia, the relative merit of the parties' positions, and whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation (see Prochilo v. Prochilo, 165 A.D.3d 1304, 84 N.Y.S.3d 786; Chesner v. Chesner, 95 A.D.3d 1252, 945 N.Y.S.2d 409; Prichep v. Prichep, 52 A.D.3d at 64-65, 858 N.Y.S.2d 667).(Brockner v Brockner, 174 A.D.3d 567, 568 [2d Dept. 2019]).
Plaintiff testified that she retained counsel, paid legal fees to her counsel, discussed the right to seek legal fees from Defendant, and declined to pursue those fees (see Transcript at page 28, Lines 20-25; Page 29, Lines 1-5).
Based upon the submissions made to this Court, along with the testimony and evidence received at the trial, and Plaintiff's Post Trial Submissions, the Court determines that each party shall be solely responsible for their own legal fees, attorneys' fees, or costs associated with this action.
h. Use of Prior Sur-Names.
In the context of a matrimonial action, trial courts have the authority to grant the parties' request to resume the use of prior pre-marriage names. Based upon the submissions made to this Court, along with the testimony and evidence received at the trial, and Plaintiff's Post Trial Submissions, both parties may resume the use of any pre-marriage sur-names, including, but not limited to, Plaintiff's resuming the use of the sur-name "[Redacted]".
i. Confidential Address
"In order to facilitate the ability of survivors of domestic violence to avoid detection by an abuser after having escaped from the abuse and having established a new address, the state legislature in 2011 enacted an Address Confidentiality Program, permitting persons certified as being survivors of domestic violence to provide a confidential address to the Secretary of State in connection with public records, public benefits, and service of process" (NYLDOMVIOL § 7:42; see also New York State Executive Law § 108).
Plaintiff has requested to utilize a confidential address upon relocating with the Children, citing a history of domestic violence perpetrated by Defendant. Based upon the submissions made to this Court, along with the testimony and evidence received at the trial, and Plaintiff's Post Trial Submissions, the Court grants Plaintiff's request to the extent that she may utilize a confidential address for Plaintiff and the Children pursuant to New York State Executive Law § 108.
j. Life Insurance
In the context of a matrimonial action, when entering a judgement of divorce, a trial court may require a party to obtain and maintain a life insurance policy to secure child support obligations (see Siskind v Siskind, 89 A.D.3d 832, 834 [2d Dept 2011]).
Plaintiff has requested that Defendant obtain and maintain a life insurance policy with a face amount of $350,000.00 naming Plaintiff and the Children as beneficiaries. Based upon the submissions made to this Court, along with the testimony and evidence received at the trial, and Plaintiff's Post Trial Submissions, the Court grants Plaintiff's request to the extent that Defendant shall be required to obtain and maintain a term life insurance policy with a face value of $350,000.00, naming Plaintiff and the Children as beneficiaries, which shall remain in effect until the date of emancipation of each of the Children, or the date when Defendant has satisfied all of his child support obligations, whichever date is later.
To effectuate the terms of this provision, Defendant shall by November 30, 2023:
1. Provide a Certificate of Insurance with proof of payment of the insurance premium confirming that he has obtained a term life insurance policy that complies with this provision;
2. Provide a fully executed Authorization permitting Plaintiff the right to obtain information on the life insurance policy until the date of termination of such policy, including, but not limited to, copies of all life insurance premium payment invoices, policy renewals and beneficiary designations.
k. Other Relief
Any relief specifically not granted or otherwise addressed herein is denied.
Based upon the foregoing, it is hereby
ORDERED that Plaintiff is granted a judgment of divorce against Defendant, dissolving forever the bonds of matrimony existing between Plaintiff and Defendant upon the grounds of the Irretrievable Breakdown of the Relationship pursuant to DRL § 170(7); and it is further
ORDERED Plaintiff is granted sole legal and physical custody of N.C. (born XX/XX/2014) and (2) Z.C. (born XX/XX/2008), pursuant to the Order of Custody Upon Default entered on June 15, 2023, by the Hon. Arlene A. Gordon-Oliver in the New York State Family Court, Westchester County, within a proceeding known as [Redacted], under File Number [Redacted], and Docket Numbers [Redacted] and [Redacted], which shall remain in full force and effect without any modification or other action being taken by this Court with respect to that Order, except to direct that the terms of which be incorporated by reference but not merged into the Judgement of Divorce; and it is further
ORDERED that this Court directs that the Order of Protection Upon Default entered on June 15, 2023, by the Hon. Arlene A. Gordon-Oliver of the New York State Family Court, Westchester County, within a proceeding known as [Redacted], commenced under File Number [Redacted], and Docket Number [Redacted] shall remain in full force and effect without any modification or other action being taken by this Court with respect to that Order, except to direct that the terms of which be incorporated by reference but not merged into the Judgement of Divorce; and it is further
ORDERED that by October 31, 2023, Plaintiff's counsel shall serve the Order of Protection Upon Default dated June 15, 2023, upon the law enforcement agencies with jurisdictions including the then residence of Plaintiff (including the City of New Rochelle Police Department, County of Westchester Police Department and New York State Police) and shall file an Affidavit of Service with the Court by October 31, 2023; and it is further
ORDERED that this Court directs that the Order of Support entered on May 1, 2023, by the Hon. Carol Ann Jordan of the New York State Family Court, Westchester County, within a proceeding known as [Redacted], commenced under File Number [Redacted], and Docket Number [Redacted] and CSMS Number [Redacted], shall remain in full force and effect without any modification or other action being taken by this Court with respect to that Order, except to direct that the terms of which be incorporated by reference but not merged into the Judgement of Divorce; and it is further
ORDERED that neither party shall be responsible for payment of spousal support or maintenance to the other; and it is further
ORDERED that with respect to the 2022 Lexus SUV, the Court awards Plaintiff sole title and ownership of the 2022 Lexus SUV. To effectuate the terms of this provision, the parties are directed to complete all documents to transfer title to the vehicle into Plaintiff's sole name by November 15, 2023. Plaintiff shall immediately be solely responsible for obtaining and paying for any automobile insurance or other carrying costs for the vehicle; and it is further
ORDERED that with respect to the 2006 Porsche Cayanne SUV, the Court awards Defendant sole title and ownership of the 2006 Porsche Cayenne SUV. To effectuate the terms of this provision, the parties are directed to complete all documents to transfer title to the vehicle into Defendant's sole name by November 15, 2023. Defendant shall immediately be solely responsible for obtaining and paying for any automobile insurance or other carrying costs for the vehicle; and it is further
ORDERED that the Court awards each party sole title and interest in all financial accounts titled in their respective names; and it is further
ORDERED that the Court awards each party sole title and interest in all retirement accounts titled in their respective names; and it is further
ORDERED that with respect to the parties' former marital domicile is determined to be a marital asset, being the real property located at [Redacted], New Rochelle, New York 10804, which the Court has determined to have been wastefully dissipated by Defendant, Plaintiff is awarded an equitable distribution from Defendant in the amount of $181,238.37. In order to effectuate this provision, Defendant shall provide Plaintiff with a certified bank check payable to Plaintiff in the amount of $181,238.37 by October 31, 2023, and if such payment is not made timely, Plaintiff shall have leave to file with Notice of Settlement a proposed Money Judgment against Defendant for the benefit of Plaintiff for the amount of $181,238.37; and it is further
ORDERED that each party shall be solely responsible their own legal fees, attorneys' fees or costs associated with this action; and it is further
ORDERED that both parties may resume the use of any pre-marriage sur-names, including, but not limited to, Plaintiff's resuming the use of the sur-name "[Redacted]"; and it is further
ORDERED that the Court grants Plaintiff's request to the extent that she may utilize a confidential address for Plaintiff and the Children, N.C. (born XX/XX/2014), and (2) Z.C. (born XX/XX/2008), pursuant to New York State Executive Law § 108; and it is further
ORDERED that Defendant shall be required to obtain and maintain a term life insurance policy with a face value of $350,000.00, naming Plaintiff and the Children as beneficiaries, which shall remain in effect until the date of emancipation of each of the Children or the date when Defendant has satisfied all his child support obligations, whichever date is later. To effectuate the terms of this provision, Defendant shall by November 30, 2023: (1) Provide a Certificate of Insurance with proof of payment of the insurance premium confirming that he has obtained a term life insurance policy that complies with this provision; and (2) Provide a fully executed Authorization permitting Plaintiff the right to obtain information on the life insurance policy until the date of termination of such policy, including, but not limited to, copies of all life insurance premium payment invoices, policy renewals and beneficiary designations; and it is further
ORDERED that by October 31, 2023, Plaintiff's counsel shall serve Defendant with a copy of this Decision and Order with a Notice of Entry of the Decision and Order, via overnight traceable delivery to [Redacted], Pelham, New York and via e-mail to [Redacted] and [Redacted], and by October 31, 2023, shall file an Affidavit of Service with a copy of the mail tracking slip and copy of the e-mail; and it is further
ORDERED that by November 20, 2023, Plaintiff's counsel shall submit, noticed for settlement, a proposed Findings of Fact and Conclusions of Law, Judgment of Divorce, and all other ancillary documents needed for the Court to enter a Judgment of Divorce, along with proof of service of those documents upon Defendant via overnight traceable delivery to [Redacted], Pelham, New York and via e-mail to [Redacted] and [Redacted], and by November 15, 2023, shall file an Affidavit of Service with a copy of the mail tracking slip and copy of the e-mail; and it is further
ORDERED that to the extent any relief sought has not been granted it is expressly denied.
The foregoing constitutes the Decision and Order of the Court.