Opinion
Index No. 56088/2018
03-13-2024
J.S, Plaintiff v. Z. G-S, Defendant
Nina Epstein, Esq., Of Counsel - Cardi & Edgar LLP, Attorney for Plaintiff Z. G-S, pro se, Defendant
Unpublished Opinion
Nina Epstein, Esq., Of Counsel - Cardi & Edgar LLP, Attorney for Plaintiff
Z. G-S, pro se, Defendant
Steven Z. Mostofsky, J.
STEVEN Z. MOSTOFSKY, J.S.C.
FACTUAL AND PROCEDURAL HISTORY
The parties married on September 18, 2013, in a civil ceremony in Manhattan. Mr. S is a United States citizen. Ms. G-S is a citizen of the United Kingdom, but she has a Green Card. Mr. S filed the divorce proceeding on December 27, 2018. He served the summons on Ms. G-S on May 3, 2019.
The Hon. Delores Thomas, J.S.C, originally presided over this case before its transfer to this Court by Administrative Order dated January 6, 2022. The parties had no children. The litigation has lasted longer than the marriage.
Mr. S is currently employed as the Vice President of Sales at Thom Browne, a global fashion brand. He has held this position since the start of the marriage. (Tr. 44).
Ms. G-S has been a freelance consultant since 2012. (Tr. 278-279). She is self-employed and runs a consultancy business.
The parties have each represented themselves at different times in the case. Ms. G-S appeared at the trial without counsel. The trial was held in person on January 31, February 1, and February 2, 2024.
MS. G-S'S REPRESENTATION
Mr. S commenced this case in 2018 represented Kirsten Brodsky, Esq. (Plaintiff's Exhibit 1; Tr. 29). Ms. G-S submitted to the Court's jurisdiction and signed and filed an Answer and Counterclaim for divorce pro se. (Plaintiff's Exhibit 4). She received affirmative relief, in the form of, among other things, interim maintenance payments. (Motion Seq. 1).
On September 30, 2020, Mr. S substituted himself for Ms. Brodsky and proceeded pro se until he retained Nina Epstein, Esq., on February 14, 2023. (NYSCEF Doc. 11, 269).
On July 21, 2022, Ms. G-S filed an Order to Show Cause requesting that Mr. S pay her $25,000 to retain an attorney. On August 23, 2022, the Court denied Ms. G-S's application without prejudice to renew, if she provided the Court with a signed retainer from an attorney seeking a more reasonable retainer. (Motion Seq. 5).
On November 17, 2022, Ms. G-S renewed her motion for attorney's fees. David P. Badanes, Esq., provided an affidavit that he would represent Ms. G-S. He sought a $7,500 retainer and a $450 hourly rate. The Court ordered Mr. S to pay the retainer, subject to reallocation. (NYSCEF Doc. 232). Mr. Badanes filed a Notice of Appearance on December 29, 2022. (NYSCEF Doc. 233). Mr. Badanes filed motions to vacate the note of issue and dismiss the case on the eve of trial. The Court denied both motions. (Motion Seq. 8 & 9). On February 3, 2023, the Court told Mr. Badanes he could seek additional counsel fees. (NYSCEF Doc. 483).
On April 7, 2023, Mr. Badanes asked the Court to relieve him as Ms. G-S's attorney because he could not represent her without extreme difficulty. (NYSCEF Doc. 274). The court was inclined to deny the request given the proximity to the scheduled trial, but Ms. G-S consented to his application. (NYSCED Doc. 276). Ms. G-S told the Court at trial that she was "blindsided" by Mr. Badanes' motion to withdraw. (Tr. 384). But she submitted an exhibit indicating she was considering dismissing Mr. Badanes as early as February 16, 2023. (NYSCEF Doc. 277). The Court allowed him to withdraw.
On April 28, 2023, Ms. G-S filed another attorney fee motion. On May 9, 2023, the Court awarded her an additional $5,000 to retain an attorney, who Mr. S would pay subject to reallocation. The Court told her that her attorney could ask for additional fees once retained. (Motion Seq. 11). But she only attempted to retain attorneys who sought large retainers. (NYSCEF Doc. 458, 524). Ms. G-S's decision to appear at the trial unrepresented was entirely her choice.
Before and during the trial, Ms. G-S demonstrated knowledge about the legal and factual issues necessary for her to proceed. The Court found her to be intelligent, capable, and articulate. She filed over a dozen orders to show cause - many contained well-drafted affidavits. She also prepared over 12 subpoenas. During the trial, Ms. G-S claimed she "[does] not understand this [Court] process at all." (Tr. 58). But she placed an email into evidence that showed she applied for a job in June of 2023 and told the prospective employer that she "successfully composed legal and court papers including order to show causes, motions, oppositions, contract underwriting, and [she] possess[es] the capability to diligently conduct legal research and present compelling case law, statutes, and legal arguments." (Defendant's Exhibit K).
CONCLUSIONS OF LAW
GROUNDS
The parties appeared before Judge Thomas on September 26, 2019. They stipulated that Mr. S would take the divorce under DRL 170(7), irretrievable breakdown of the marital relationship for a period over six (6) months. The Court allocuted Mr. S on February 2, 2024, and granted the divorce subject to the entry of a final judgment of divorce.
CREDIBILITY
It is well established that the "trial court, which had the opportunity to view the demeanor of the witnesses, [is] in the best position to gauge their credibility." (Massirman v. Massirman, 78 A.D.3d 1021, 911 N.Y.S.2d 462 [2d Dept 2010] quoting Peritore v. Peritore, 66 A.D.3d 750, 888 N.Y.S.2d 72 [2d Dept 2009]). In a "non-jury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion." (In re Elam, 140 A.D.3d 754,34 N.Y.S.3d 97 [2 Dept., 2017]).
Ms. G-S appeared at the trial with a laptop and a tablet. She referred to each during the trial. She appeared alert and oriented. She competently presented her case, especially about the marriage.
Ms. G-S repeatedly claimed that files she uploaded to the Virtual Evidence Courtroom ("VEC") the day before the trial were "corrupt," but the Court saw no evidence of damaged files. (Tr. 149). She uploaded some blank pages within larger exhibits, but the Court instructed her weeks in advance of the trial to upload evidence to the VEC. She did not follow the Court's instructions.
Mr. S claims the parties separated in 2015. (Tr. 31). But he waited to file for divorce until December 27, 2018, because Ms. G-S threatened to harm herself or Mr. S if he did so. (Tr. 31-34; Plaintiff's Exhibit 68). She also threatened self-harm during this proceeding, which forced the Court to appoint a Guardian Ad Litem to determine if she required an Article 81 guardian. (NYSCEF Doc. 470).
In his Statement of Proposed Disposition, dated November 30, 2023, Mr. S described the marriage as one "of convenience to enable the [Ms. G-S] to apply for a Green Card." (NYSCEF Doc. No. 514). He also indicated a desire to open a joint bank account with Ms. G-S. (Defendant's Exhibit D). His attorney argued "this was not a marriage in the true sense of the word where they were partners either emotionally, sexually or financially." (Tr. 11-14). Mr. S claimed that he and Ms. G-S "ceased being intimate after just one month of marriage, despite Plaintiff's desire to maintain a marital relationship." (NYSCEF Doc. No. 514).
But on August 21, 2014, far more than one month into the marriage, Mr. S wrote an email to Ms. G-S saying, "2 nights ago you rolled over in bed and held me a little and it was really like a great medicine. I felt much better when you did that." (Defendant's Exhibit C).
Mr. S admitted he put his address on forms he submitted to the federal government when sponsoring Ms. G-S's Green Card. (Tr. 105-106). He testified that he did so "because [he] was in love with the [her] and wanted to support her." (Tr. 48).
Mr. S said he and Ms. G-S never resided together. (Tr. 31). But on cross-examination, Mr. S admitted he took affirmative steps to add Ms. G-S to his lease and admitted asking Ms. G-S to move in with him. (Tr. 31-35). This undermines his claims that it was a marriage "of convenience to enable the Defendant to apply for a Green Card."
The Court finds that the parties had a viable, albeit untraditional, marriage.
REALLOCATION
The Court's award of $7,500 for Ms. G-S to retain Mr. Badanes was subject to reallocation after trial. (Motion Seq. 6; NYSCEF Doc. 232). On November 28, 2023, Mr. S moved for an order requiring Ms. G-S to repay him the $7,500. He argued that Ms. G-S misrepresented her income to this Court when it issued the pendente lite award. He supplied the Court with an exhibit showing that Ms. G-S traveled internationally around the same time she told this Court she had no money. (NYSCEF Doc. 504, 509, 510). She admitted to the travel. (Tr. 359-363). On January 23, 2024, the Court issued a Decision and Order denying the motion without prejudice to renew at trial. He did not renew his application at trial. (Motion Seq. 20, NYSCEF Doc. 588).
On January 29, 2024, the Court issued a sua sponte order requiring Mr. S to pay Ms. G-S $100 for her travel to Court for the trial, subject to reallocation. (Motion Seq. 21, 22; NYSCEF Doc. 586, 598, 602). She used some of the funds to attend the first day of trial, but then claimed that she could not afford to come to Court for the remainder of the trial because the funds went towards outstanding auto payments that she knew about. (Tr. 135-138, 297-302). The Court ordered Mr. S to pay Ms. G-S an additional $100 for her transportation, subject to reallocation at the end of trial. (Tr. 302-303). The Court finds that Ms. G-S must remit the $200 back to Mr. S. The Court will deduct the amount from Ms. G-S's distributive award.
EQUITABLE DISTRIBUTION
Domestic Relations Law § 236 (B)(5)(a) requires that 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." In determining equitable distribution, the court is required to consider 13 specific factors and may consider any other factor the Court finds just and proper. (DRL § 236 (B)(5) (d]). The Court must explain the factors it considered and the reasons for doing so in reaching its decision. (DRL § 236 (B)(5)(g); Kaufman v Kaufman, 189 A.D.3d 31, 52 [2d Dept. 2020]). Since "marriage [is] an economic partnership," the law "mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the courts to consider a number of statutory factors." (Fields v Fields, 15 N.Y.3d 158, 170 [2010]).
The factors are:
1. Income and property; 2. Duration of the marriage and age and health of the parties; 3. Need of custodial parent to occupy or own the marital residence; 4. The loss of inheritance and pension rights; 5. The loss of health insurance benefits upon dissolution of the marriage; 7. An award of maintenance; 8. Direct and indirect contributions; 9. Liquid or non-liquid character of the property; 10. Future financial circumstances of the parties; 11. The difficulty of valuing marital assets; 12. The tax consequences to each party; 13. The wasteful dissipation of assets; 12. Transfer in contemplation of action; 14. Any other factors.
The Court must first determine the parties' separate and marital property. DRL § 236 (B)(1)(c) provides that "It is presumed that all property acquired by either spouse during the marriage is marital property." (See also DeLuca v. Deluca, 97 N.Y.2d 139, 144 [2001]). "The burden rests with the titled spouse to rebut the presumption." (DeJesus v. DeJesus, 90 N.Y.2d 643, 652 [1997]).
Courts must construe the definition of marital and separate property differently. "[M]arital property [is] construed broadly in order to give effect to the economic partnership concept of the marriage relationship. By contrast, separate property-denoted as an exception to marital property-should be construed narrowly." (Fields, 15 N.Y.3d at 163 , quoting Price v Price, 69 N.Y.2d 8, 15 [1986]; see also Majauskas v Majauskas, 61 N.Y.2d 481, 489 [1984]). Separate property is defined as "(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; (2) compensation for personal injuries; (3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; (4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part." (DRL § 236 [B][1][d]).
Based on DRL § 236, the Court reaches the following determinations about the equitable distribution of the marital assets:
CITIBANK CHECKING ACCOUNT X4014
The Court finds that the Citibank checking account ending in x4014 is marital property. According to Mr. S's final Statement of Net Worth, filed on November 30, 2023, he has sole title to the account and opened it in 1993. (NYSCEF Doc. No. 513). But he continued to deposit funds into this account during the marriage. (Defendant's Exhibit O, P). At the date of marriage, the account held $11,405.04. (Defendant's Exhibit P). The total in the account on the date of commencement was $ 151,347.63. (Defendant's Exhibit O). The Court finds that the marital portion of the account is worth $139,942.59, representing the increase in value from the date of marriage to the date of commencement.
Mr. S testified that he received $60,000, after attorney fees, from an accident that occurred in 2015 during the marriage and deposited the funds in his checking account. (Tr. 91-92.) He did not ask the Court to consider the deposit when calculating the value of the marital portion of the account. (See generally Renck v Renck, 131 A.D.3d 1146 (holding that parties' separate property from an inheritance lost its separate property character once it was commingled with marital assets in a financial account)).
Mr. S acknowledges the account is marital. He wants the Court to award him 90% of it and 10% to Ms. G-S. (Tr. 396-397). Ms. G-S wants the Court to equitably distribute this account but did not ask for a specific percentage.
FIDELITY DOLCE AND GABBANA 401 (K)
Mr. S testified that he worked at Dolce and Gabbana before the marriage and made contributions to a 401(k), held by Fidelity. (Tr. 60; Plaintiff's Exhibit 47). Mr. S testified that he made no contributions to the account during the marriage. (Tr. 61-62). He stopped contributing to the account when he stopped working at Dolce and Gabbana. (Tr. 61-63). Plaintiff's Exhibit 47 shows that the account held $168,426.44 as of April 1, 2013, and $270,668.16 as of December 31, 2018.
The account was opened before the marriage. While the value of this 401(k) increased during the marriage, Mr. S made no contributions during the marriage, and the passive increase in value was due to market increases. Accordingly, the Court finds that this account is Mr. S's separate property. (DRL § 236 [B][1][d][1]; Price v Price, 69 N.Y.2d 8, 18 [1986]).
VANGUARD IRA X5204
Mr. S opened this account in 2016. (Tr. 96-97, NYSCEF Doc. 513). On July 31, 2023, the account was worth $5,926.66. (Plaintiff's Exhibit 44). The balance on December 31, 2018, just four days after commencement, was $5,532.93. (Plaintiff's Exhibit 22). Mr. S's attorney represented to the Court that there was no money in the account at the date of commencement. (Tr. 97). But the statements show that contributions to the account began as early as September 21, 2018, which was before commencement. (Plaintiff's Exhibit 22). The Court holds that the $5,926.66 of this account is subject to equitable distribution. (D'Angelo v. D'Angelo, 14 A.D.3d 476 [2d Dept. 2005] (finding that the trial court has discretion to set the valuation date between the date of commencement and trial)).
THOM BROWNE ADP 401(K)
Mr. S opened this account on October 22, 2019, which was post-commencement. The Court finds that this account is Mr. S's separate property and not subject to equitable distribution. (Plaintiff's Exhibits 21 and 41; DRL § 236 (B)(1)(d)(1]).
UTMA ACCOUNTS
Mr. S is the custodian for three UTMA accounts for his family members, B., H., and M. (Tr. 97-98). Mr. S testified he did not make contributions to these accounts during the marriage. (Tr. 79-80, 83). All three accounts were opened before the marriage. (Plaintiff's Exhibits 49, 50, 51). Under DRL § 236 [B][1][d], these accounts are Mr. S's separate property.
CITIBANK ROTH IRA X7314
In his Statement of Net Worth filed November 30, 2023, Mr. S listed a Citibank IRA worth $33,173.9 as of the date of commencement. He listed the funds as salary. Curiously, he wrote that the account was opened in 2020, which was after commencement. (NYSCEF Doc. 513). But Mr. S's attorney acknowledged this account is marital property. (Tr. 9, 393). Mr. S's attorney represented to the Court that the account is worth $37,000 and asked the Court to evenly divide this account between the parties (Tr. 9, 396). The Court is utilizing this amount as the marital value of the account.
L. FOUNDATION DEPOSIT AND REMITTANCE
Mr. S is the treasurer at the L. Foundation charity. He has been affiliated with it for 13 years. (Tr. 87). The charity does work together with a charity in Ethiopia. (Tr. 87). The foundation held an event in 2016 where Mr. S accepted donations into his own checking account because the charity's PayPal account was inoperable. (Tr. 89-90). He testified that "within a day or two" he remitted them to the charity's account. (Tr. 89-90). He marked for identification a bank statement that showed the exact amount transferred from his Citibank account to the L. Foundation on October 21, 2016, as $19,650. (TR. 98-99). The statement does not show the exact amount of $19,650 deposited into his checking account, nor when it was received, but there is a deposit of $25,590.36 reflected on October 14, 2016. The Court cannot say for certain if this includes the L. Foundation funds he received. Neither party explained this discrepancy.
Ms. G-S claims that Mr. S used the L. Foundation to hide money from the IRS. (Tr. 272). Mr. S received the L. Foundation donations because of technical difficulties and then remitted them into the charity's account shortly after. The Court finds these funds are his separate property. (See Signorile v Signorile, 102 A.D.3d 949, 950 [2d Dept. 2013].
DISTRIBUTIVE AWARD
"While the distribution of marital property must be equitable, there is no requirement that the assets be split evenly." (Giokas v Giokas, 73 A.D.3d 688, 689 [2010]).
The Court considers the following under DRL § 236B(5)(d) in issuing its award:
1. Income and property: Mr. S has retirement accounts and earns more than $250,000 annually. He works for a reputable fashion brand. Ms. G-S estimated that she earned around $54,000 in 2019. (Motion Seq. 1; Tr 328-329). Though the Court has concerns about her underemployment, she is currently receiving welfare. She does not own property, but she rents out her apartment and received income over many years from doing so.
2. Duration of the marriage and age and health of the parties: The parties were married for just over 5 years. They had no children together. Both parties are young and there was no testimony about serious health issues on either side.
3. Need of custodial parent to occupy or own the marital residence: Not applicable.
4. The loss of inheritance and pension rights: Not applicable.
5. The loss of health insurance benefits upon dissolution of the marriage: Mr. S currently covers Ms. G-S with his health insurance, provided through his employer. (Tr. 45-46). Neither side testified further about health insurance coverage.
6. An award of maintenance: The court awards Ms. G-S seven months of maintenance.
7. Direct and indirect contributions: Ms. G-S made efforts to maintain the relationship, even seeking out couples counseling. (Tr. 262) At times she provided emotional support to Mr. S. (Defendant's Exhibits C, D).
8. Liquid or non-liquid character of the property: The Court finds that a checking account and two IRAs are subject to equitable distribution.
9. Future financial circumstances of the parties: Both parties have promising financial futures. Mr. S plays a prominent role at his company, Thom Browne, where he has been employed for over a decade. Ms. G-S is young, driven, passionate, and in her own words, "adept" at her work. (Tr. 279).
10. The difficulty of valuing marital assets: None.
11. The tax consequences to each party: Neither party testified about possible tax consequences related to equitable distribution.
12. The wasteful dissipation of assets: None.
13. Transfer in contemplation of action: None.
14. Any other factors: None.
The Court has considered all the factors as outlined in DRL § 236B(5)(d)(1-14) and makes its finding based on factors (1), (2), (6), (7), (8), and (9).
Dividing the martial property equally would not be equitable because the parties maintained largely separate financial lives in a short-term marriage. This is not a case in which the less-monied spouse's attention to homemaking in place of employment allowed the monied spouse to succeed. There was no testimony that Ms. G-S contributed financially to any of the marital accounts. When considering the relative financial contributions of the parties in short-term marriages, the Courts may order an unequal distribution. (See generally Doscher v Doscher, 137 A.D.3d 962 [2016]; Scher v Scher, 91 A.D.3d 842 [2d Dept. 2012]). The Court relies on Davenport v Davenport, an opinion from the Appellate Division, Second Department , that upheld the trial court's award of 25% of the other spouse's bank account after the court considered the relative financial contributions of the parties in a four-year marriage. (199 A.D.3d 637, 641 [2d. Dept 2021]).
Accordingly, the Court awards Ms. G-S 50% of the Citibank IRA account valued at $37,000 and 25% of the Vanguard IRA, worth $5,926.66. Mr. S may roll over the IRA to avoid early withdrawal payments. If Ms. G-S decides not to cooperate, Mr. S may deduct the penalty from the IRA funds and distribute 25% of the remaining balance to her. The Court also awards Ms. G-S 25% of the Citibank checking account valued at $139,942.59. Mr. S shall retain $200 from Ms. G-S's share of the Citibank checking account for her transportation to Court, which the Court reallocates to him.
MAINTENANCE
On June 29, 2020, Judge Thomas ordered that Mr. S pay Ms. G-S $2,109.96 bi-weekly in pendente lite support, until December 25, 2020, retroactive to December 23, 2019. She also ordered him to make $250 bi-weekly payments to Ms. Graham- until the arrears were paid.
Mr. S is the Vice President of Sales for Thom Browne, a global fashion brand. Ms. G-S has been a freelance consultant since 2012. (Tr. 278-279). She is self-employed, running a consultancy business called H. During the trial, she attempted to downplay the business by pointing out that it is not registered as an LLC and is simply a "moniker." (Tr. 288). But she retained global clients such as Nike, Valentino, and Club Monaco. (Tr. 169-170). She said she is "adept" at her work and "on a roll" before the pandemic. (Tr. 279).
Ms. G-S seeks between one year and one year and seven months of maintenance at $5,095.72 per month, based on her calculations using the Joy Rosenthal calculator. (Tr. 276-277, 391). She listed her gross income as $-1,346.00 annually and assigned $278,344.00 to Mr. S for his annual gross income. Mr. S argues the Court should not grant Ms. G-S additional maintenance. (Tr. 396).
Domestic Relations Law § 236 B (6) explains how to calculate a presumptive maintenance award unless it finds it to be "unjust or inappropriate." (DRL § 236 [B] [5-a] [h] [1]; see also Goncalves v Goncalves, 105 A.D.3d 901, 902 [2d Dept 2013]). The maintenance guidelines require the Court to consider the payor's income up to a cap of $203,000. (DRL § 236[B][6][b][4]). The Court may consider the payor's income above the cap in determining whether to award additional maintenance beyond the guidelines, but it must do so based on the statutory factors. (DRL § 236(B)(6)(d)(1)-(3)). An award of maintenance is meant to give the recipient spouse "economic independence," for a "duration that would provide the recipient with enough time to become self-supporting" (D'Iorio v D'Iorio, 135 A.D.3d 693, 695, [2d Dept. 2016]). This is within "the sound discretion of the trial court" and should be based on the specific facts of this case. (Culen v Culen, 157 A.D.3d 926, 928 [2d Dept. 2018]).
The parties' income for maintenance is determined the same way as child support under the Child Support Standards Act (CSSA). (See DRL 240(1-b)(b)(5)(i); DRL § 236B [5-a][b][4]); see also Toscano v. Toscano, 153 A.D.3d 1140 [2d Dept. 2017]). The Court starts with the parties' incomes as they were reported on their most recent tax returns. (Id.) The Court may also impute income to a party "based upon the party's past income or demonstrated future potential earnings." (Matter of Rohme v Burns, 92 A.D.3d 946, 947 [2d Dept. 2012]). The Court does not need to accept either party's representation of their finances. (See Cazar v. Browder, 191 A.D.3d 837 [2d Dept. 2021]).
IMPUTING INCOME TO MS. G-S
Ms. G-S's tax returns from 2016 to 2022 show varied income. In 2016, Ms. G-S's reported earning $21,630 in gross receipts from her consulting business (Plaintiff's Exhibit 4). In 2017, she reported earning $11,230 in gross receipts from the business. She told the Court that in 2018, she earned a total income of $49,772.50. (Tr. 326-327; Motion Seq. 1). In 2019, after the commencement but before the COVID-19 pandemic, Ms. G-S claimed her business had grossed $29,078, but she claimed it netted only $5,816. (Plaintiff's Exhibit 7). In October 2019, when Ms. G-S first applied for interim maintenance, she submitted evidence indicating $54,000 in estimated earnings for the year. (Tr. 328-329).
In 2020, Ms. G-S's return listed gross receipts of $25,680 from her consulting firm. (NYSCEF Doc. 84). For 2021, she claimed only $24 in gross receipts and a net loss of $29,650. In 2022, she claimed the business only produced $6,342.00 in gross receipts. She claimed her individual adjusted gross income was $-1,346. (NYSCEF Doc. 294). Given the nature of Ms. G-S's business, a solo consultancy that relies on generating income from booking talent, the Court finds these numbers incredible.
Ms. G-S repeatedly told the Court that the Covid-19 pandemic adversely impacted her business. The Court disagrees. There was not a significant change in her income between 2019 and 2020 as reflected on her tax returns. The Court does not believe that Ms. G-S's line of work in consulting, specifically in the fashion industry, is one so adversely impacted by the pandemic that it would never return to its pre-pandemic levels.
The Court instructed Ms. G-S to find consistent employment. It does not appear she seriously did so. She told the Court she asked opposing counsel for a receptionist job at her firm. (Tr. 343). Ms. G-S is puzzled as to why she hasn't obtained meaningful and consistent employment during the pendency of this action. (Tr. 279). She said if given time to focus and concentrate on her work, she can be successful in acquiring new clients. (Id.). Ms. G-S also sublets her apartment to generate income, but the exact amounts were not provided to the Court. (Tr. 290-291).
The Court imputes $35,000 of CSSA income, inclusive of deductions, to Ms. G-S for calculating the presumptive final maintenance award. The Court notes that the current minimum wage in NYC is $16 per hour, which at 35 hours per week would result in an annual salary of $29,120. Ms. G-S could have obtained one of these jobs to supplement her consulting income but chose not to.
Ms. G-S's business has international clients, including household names such as Nike, Valentino, and Club Monaco. (Tr. 169-170). She also receives accommodations at times, in the form of unpaid stays abroad or paid-for airfare. (Tr. 359). The Court imputes the $35,000 to Ms. G-S after considering her prior earnings, her experience in the workforce, the nature of her business in a post-pandemic world, her self-reported ability to rent out her apartment, and the fact that she did not obtain even a minimum wage job while this case was pending to supplement her business earnings.
Mr. S's 2022 income is $278,344, based on his 2022 tax return. The Court cannot deduct FICA taxes paid since he did not give complete information to the Court. However, it does not affect the calculations because of the income cap in the statute. (DRL § 236(B)(6)(d). Mr. S paid $10,354 in NYC tax, which is deductible from his income for CSSA purposes. Mr. S's adjusted CSSA income is $267,990. This number is over the statutory cap of $203,000, which was in effect at the time of trial. However, after considering the statutory factors, the Court does not believe it would produce a more just maintenance award under these circumstances to consider Mr. S's income above the cap. (DRL § 236(B)(6)(d)(1)-(3)). The presumptive award using the cap will still allow Ms. G-S to become economically independent.
Effective March 1, 2024, the combined income cap for calculating the presumptive maintenance award increased to $228,000. The seven months of maintenance the Court is awarding is retroactive to the date Ms. G-S first requested maintenance, which was in her answer, filed June 24, 2019. (Plaintiff's Exhibit 3). All off the retroactive payments cover the period in which the CSSA cap was $203,000. For that reason, the Court is using the $203,000 cap for its calculation.
There are two calculations used to determine the presumptive award. Under the first calculation, the Court considers 30% of Mr. S's 2022 income up to the cap of $203,000, which is $60,900. Subtracting 20% of Ms. G-S's income from that number produces a result of $53,900. Under the second calculation, the Court considers the payor spouse's income up to the $203,000 income cap and adds the payee spouse's income. Then, it considers 40% of that total, minus the payee spouse's income. Here, the combined income is $238,000.40% of the combined income is $95,200. Subtracting Ms. G-S's imputed $35,000 of CSSA income from that number produces a result of $60,200. The first result of $53,900.00 annually, $4,491.67 per month, or $2,073.08 biweekly, is the lower of the calculations and thus is the presumptive award under the guidelines. (DRL §236(B)(6)(c)(1)(d)).
Calculation one
30% of the payor's income up to the cap of $203,000
$60,900.
Minus 20% of the payee's income (20% of 35,000 = 7,000)
$53,900
Result
$53,900
Calculation 2
Payors income up to the cap of $203,000
$203,000
Plus, payee's income
$35,000
Combined total income
$238,000
40% of the combined income
$95,200
Minus payee's income
$35,000
Result
$60,200
In determining whether the presumptive calculation is just and appropriate, the Court must consider the following factors within in DRL § 236(B)(6)(e)(1)(a-o)
(a) the age and health of the parties;
(b) the present or future earning capacity of the parties, including a history of limited participation in the workforce;
(c) the need of one party to incur education or training expenses;
(d) the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded;
(e) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
(f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
(g) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
(h) the availability and cost of medical insurance for the parties;
(i) the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;
(j) the tax consequences to each party;
(k) the standard of living of the parties established during the marriage;
(l) the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage;
(m) the equitable distribution of marital property and the income or imputed income on the assets so distributed;
(n) the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
(o) any other factor which the court shall expressly find to be just and proper.
The Court considered the factors in DRL § 236(B)(6)(e)(1)(a-o), and focused heavily on the liquid component of the Court's equitable distribution award to Ms. G-S, the fact that the parties were married for approximately five years and three months, and are both relatively young and healthy, Ms. G-S's future earning capacity based on her admitted skill in her field of work, and the standard of living established during the marriage in which the parties largely kept their finances separate. The Court believes the presumptive award will allow Ms. G-S to return to the standard of living she enjoyed during the short marriage while allowing her to focus on her business. This will allow her to retain new clients and become economically independent. (See generally Pandis v. Lapas, 176 A.D.3d 837 [2d Dept. 2019]). The Court emphasizes that a large portion of the distributive award Ms. G-S is receiving is liquid. (See Grumet v. Grumet, 37 A.D.3d 534 [2d Dept. 2007]).
Accordingly, the Court is awarding Ms. G-S $4,491.67 per month, which Mr. S shall pay $2,073.08 biweekly, via paper check sent by regular mail to Ms. G-S's residence at 252 Norman Avenue, Brooklyn, NY, 11222 with proof of mailing.
DURATION
The Court must now consider how long Ms. G-S should receive maintenance, which "is a matter committed to the sound discretion of the trial court." (See Rennock v. Rennock, 203 A.D.3d 675 (1st Dept. 2022). The Court must consider the advisory schedule in DRL § 236(B)(6)(f)(1) and the factors in DRL § 236(B)(6)(e)(1)(a-o) to determine the duration of the award. (See also Gutierrez v. Gutierrez, 193 A.D.3d 1363 [4th Dept. 2021]).
The duration of the marriage is approximately five years and three months, spanning from September 18, 2013, to December 27, 2018. The guidelines suggest that spousal support last between 15% and 30% of the duration of the marriages between 0 and 15 years, which in this case is approximately between 9.5 months to one year and seven months (1.6 years). Ms. G-S already received one year of interim maintenance under Judge Thomas' Decision and Order in Motion Sequence 1. The Court subtracts that year of maintenance from the guideline range.
The Court relies on the statutory factors in DRL § 236(B)(6)(e)(1)(a-o) and finds that seven months of maintenance is appropriate. The Court considered Ms. G-S's age and active participation in the workforce for over 10 years in her field, which provides a baseline earning capacity. It also considered that the distributive award it issued in this case contains significant liquid assets, the fact there are no children of the marriage, and it was not alleged that Ms. G-S cares for any dependents that would limit her abilities in the work force. Additionally. the initial year of maintenance Ms. G-S received did not seem to impact her ability to embrace steady work. This duration of this award considers the parties' educational backgrounds and finances and is intended to help Ms. G-S become self-supporting. (See Acosta v. Acosta, 301A.D.2d 467, 497 [1st Dept. 2003]).
Under DRL § 236(B)(6)(f)(3) this maintenance award will terminate seven months from its inception unless a party dies, or Ms. G-S remarries. (See also Gold v. Gold, 276 A.D.2d 587 [2d Dept. 2000]).
RETROACTIVITY
A credit is only appropriate when "the award is in excess of any temporary maintenance and support award." (Foxx v Foxx, 114 A.D.2d 605, 607, 494 N.Y.S.2d 446 [1985]). Here, the final award is not more than the interim award.
Under Domestic Relations Law Section 236(B)(6)(a), a maintenance obligation is retroactive to its first application. Ms. G-S first asked for maintenance in her answer, filed on June 24, 2019. (Plaintiff's Exhibit 3). Judge Thomas issued the pendente lite maintenance award on June 29, 2020, and ordered retroactive support paid from December 23, 2019. (Motion Seq. 1). Six months lapsed between Ms. G-S's first application and the start of the interim maintenance payments. This Court's award of seven months is retroactive and covers these six months, along with an additional month after Mr. S paid the interim award in full. All retroactive payments encompass the period in which the CSSA income cap considered income up to $203,000.
HEALTH INSURANCE
Under Domestic Relations Law Section 255, both parties are made aware "...that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan."
If either Mr. S or Ms. G-S retains health insurance benefits for the other spouse, the other spouse may be eligible to receive health insurance through a COBRA option. The other spouse may need to acquire health insurance. Mr. S and Ms. G-S are each financially responsible for any costs arising from their dental and vision coverage.
There was no testimony at trial on health insurance costs or medical debts.
THE GUARDIAN AD LITEM
Ms. G-S sent emails to the Court that appeared paranoid and included multiple threats of self-harm. (NYSCEF Doc. 460, 461). This was consistent with the threats she made to Mr. S when he initially wanted to file for divorce. (Tr. 31-34; Plaintiff's Exhibit 68). On September 7, 2023, the Court appointed Julie Clark, Esq., as Guardian Ad Litem ("GAL") for Ms. G-S to determine if she required an Article 81 guardian. The Court's reasons for appointing Ms. Clark are discussed in greater detail in its September 7, 2023, Order. (NYSCEF Doc. 470).
Ms. Clark reported that Ms. G-S was "very intelligent and articulate. She was appropriate and well-dressed when we met in person." She reported that Ms. G-S did not need an Article 81 guardian. (NYSCEF Doc. 474).
She submitted an invoice for five hours of work at $350 per hour, totaling $1,750. (NYSCEF Doc. 547). The Court approves the invoice.
Mr. S is the monied spouse. The Court deems him responsible to pay Ms. Clarke $1,750. He must remit the fee to Ms. Clark within 14 days of entry of this Order.
CONCLUSION
Mr. S's attorney shall settle the completed judgment roll for a judgment of divorce in favor of the plaintiff on the grounds of DRL 170(7), along with the minutes of the inquest on grounds and oral decisions on the record, copies of any stipulations and/or any allocutions on ancillary issues, with a copy of this decision on notice to the other party within sixty (60) days. Failure to timely settle the Findings of Fact and Judgment of Divorce may result in this action being dismissed, or sanctions.
This constitutes the Court's trial Decision and Order.