Opinion
2012-07-4
MOJDEH M., Plaintiff, v. JAMSHID A., Defendant.
Bernadette M. Davidson, Esq., Caruso, Caruso & Branda, Brooklyn, for Plaintiffs. George Gilmer, Esq., Brooklyn, for Defendant.
Bernadette M. Davidson, Esq., Caruso, Caruso & Branda, Brooklyn, for Plaintiffs. George Gilmer, Esq., Brooklyn, for Defendant.
JEFFREY S. SUNSHINE, J.
Procedural Background
The instant action for divorce was commenced on December 27, 2007. The ancillary issues were tried on November 5, 2010, November 18, 2010 and June 6, 2011. The wife submitted plaintiff's written summation, dated September 9, 2011. The husband submitted defendant's written summation on September 28, 2011. The wife thereafter replied to the husband's summation on September 30, 2011. The issues presently before the court are: (1) maintenance; (2) child support; (3) equitable distribution; and (4) counsel fees.
* Publication version edited for privacy.
Findings of Fact
The parties were married on October 21, 1996 in a religious ceremony. The husband is 56 years of age and the wife is 41 years of age. The parties have one (1) child who is 11 years of age, born in May 2002. The parties are each in good health. They have each earned graduate degrees. The wife attended medical school prior to the parties' marriage in Iran. During the marriage, the wife passed the United States medical boards, earned her internal medicine certificate, completed a four (4) year medical residency program, worked in private practice for one (1) year and then completed her three (3) year fellowship in gastroenterology in 2008. The husband holds two (2) masters degrees; one in education in research and management and another in industrial engineering. Prior to the parties marriage the husband worked as a professor and engineer. During the first two (2) years of the marriage, he worked sporadically, thereafter, he stopped working altogether and has been unemployed ever since.
Grounds for Divorce
The wife was granted a divorce on the grounds of constructive abandonment after a trial before Special Referee Charmaine Henderson on November 25, 2008.
Custody and Visitation
Pursuant to the oral decision of this court, after an extensive trial, on June 23, 2010, the wife was awarded custody of the parties' child. The husband was awarded visitation with the child. An interlocutory judgment of custody and visitation was signed on September 13, 2010. This court found in its oral decision at the conclusion of the custody trial that the Administration for Children's Services (ACS) investigated a physical altercation between the husband and the parties' child which involved twisting and choking of the child. The case was “indicated” by ACS and concluded with an adjournment in contemplation of a dismissal (ACD).
Standard of Living
According to the wife's 2009 tax return her annual income was $253,011.00. Although no 2008 tax return was submitted, the wife's 2008 W–2 the hispital itemizes the wife's wages at $34,446.53. However, the wife's affidavit of net worth dated September 22, 2010 has a federal income tax summary annexed to her 2009 tax return. This summary indicates that the wife's income in 2008 was $124,747.00. The wife did not submit her 2010 tax return and it is not before this court. The wife submitted three (3) separate affidavits of net worth dated June 16, 2008, January 20, 2009 and September 22, 2010. In accordance with these affidavits of net worth, the wife's annual income was $252,996.00, $150,000.00, and $61,767.84 respectively. These affidavits itemize the following information:
Image 1 (6.51" X 1.62") Available for Offline Print
The affidavits each show a corresponding increase in the wife's monthly income, monthly expenses, assets and liabilities. At trial, the wife testified that the change in her income was due to her change in employment from her fellowship at the hospital to working in private practice. The increase in the wife's assets was due to her changing her life insurance policy coverage in 2009 from $500,000.00 to $1,500,000.00, and the difference in liability reflected the fluctuation in her credit card debt.
The wife's affidavits of net worth itemize the wife's monthly expenses as follows:
Image 2 (6.4" X 4.7") Available for Offline Print
Editor's Note: The preceding image contains the reference for footnote
The wife considered $825.00 for after-school tuition and $20.00 for school events which totals $845, not $905.00 as she indicated.
In the wife's most recent affidavit of net worth, her total monthly expenses are $11,621.00 which is $139,452.00 annually.
In addition, the wife also projected in her affidavit two (2) other educational costs that she did not include in this calculation of her net worth but that she affirms will be a part of her expenses as of September 22, 2010, when the son begins math tutoring and speech therapy classes costing $200.00 and $560.00 a month respectively. The wife's testimony at trial is consistent with her affidavit of net worth.
Although in the wife's affidavit of net worth she states a slightly different amount; $11,731.00 per month, not $11,621.00.
The husband's first affidavit of net worth, dated June 30, 2008, indicates that he is unemployed, with no assets or liabilities and $4,155.00 in monthly expenses. In his amended, September 21, 2010, affidavit of net worth, the husband remains unemployed, with no assets or liabilities, and indicates that his monthly expenses are $1,005.00. The affidavits itemize the husband's monthly expenses as follows:
Image 3 (6.37" X 4.84") Available for Offline Print
Editor's Note: The preceding image contains the reference for footnote
The husband's affidavit lists $40.00 for gas, but does not calculate this expense into his total monthly expenses. He did not offer any testimony at trial to clarify this discrepancy.
In his most recent affidavit of net worth dated September 21, 2010, the husband's total monthly expenses are $1,005.00 which is $12,060.00 annually. At trial, the husband testified that his monthly expenses were as follows: (1) $600.00 in rent; (2) $400.00 in food; (3) $100.00 in transportation
; (4) $100.00 for clothes for a year; which is approximately $8.50 a month; and (5) between $100.00 and $200.00 a month for unexpected expenses. The husband testified that his monthly expenses range from approximately $1,208.50 to $1,308.50. It should be noted that the husband does not offer an explanation for the inconsistencies in his affidavits of net worth and his testimony at trial. The husband also testified that he wanted to move out of his current apartment and rent another that costs the same amount as the wife's apartment.
It should be noted that this expense was first introduced to the court at trial, and was not included in the husband's affidavits of net worth.
In accordance with the parties' joint tax returns the parties' annual income was $61,788.57 in 2007;$57,717.82 in 2006; $103,275.35 in 2005; and $105,580.74 in 2004. Each of the parties' joint tax returns lists the wife as the sole earner and lists the husband as unemployed.
The wife testified that she was a medical resident from 2000–2004 and earned an annual salary of $45,000.00. As a resident, however, the Chairman of the Department allowed the wife to work extra shifts, moonlighting in the emergency room to earn more money, as she was the sole breadwinner supporting the family. The wife testified that after she completed her residency in 2004, she worked as an attending intern for one year, and earned an annual salary of $110,000.00. Thereafter, the wife completed her fellowship in gastroenterology in three (3) years where she earned an annual income starting at $60,000.00 which increased to $65,000.00. The wife testified that unlike a resident, a fellow's work hours are regulated and, therefore, she was prohibited from working extra shifts. This prohibition explains the downward shift in her income in the joint tax returns from 2004, when it was $105,580.74, through 2007 when it was $61,788.57.
The wife testified that her fellowship ended in 2008, which concluded her required medical training. In July of 2008, she began working for her current employer, [redacted], MD, PC. In 2009, the wife's reported income was $253,011.00. The wife testified that although her training was completed and she was, therefore, able to increase her fees per patient visit, her expenses simultaneously increased. The wife had the additional expense of office space, medical malpractice insurance, health insurance and an office assistant.
The husband, other than his temporary contracting jobs at the beginning of the marriage and his work at McDonald's in Michigan from 1997 to 1998, and one (1) work day in New York at a Wall Street job, has been consistently unemployed and contributed no income for the duration of the parties' marriage. The wife testified that the husband's refused to search for gainful employment even though he holds two (2) master degrees and was a considerable cause of strife and disagreement between the parties. Although the husband testified that it was the wife who did not want him to work, the wife refuted the husband's testimony by testifying that she tried to help him find a job by introducing him to her brother's friend who had two (2) positions and who asked the husband for his resume, but he refused to comply. The wife testified that she knew the husband could work a decent job because he was employed steadily from 1989 to 1995, prior to their marriage. The husband testified, and his resume indicates, that he worked as an engineer in a technology center in Rochester, Michigan, and then at [redacted] also in Michigan.
The wife also testified that the husband's unemployment did not benefit her, but, rather, hurt her because the family was in need of the additional income. She testified that at the beginning of the marriage in 1998, she sought employment as a medical assistant in Warren, Michigan at a hospital while studying for the medical boards because her husband's erratic employment was not producing a stable source of income sufficient to support the family. After the parties moved to New York in 2000, the husband remained unemployed and told the wife that she should get a second job, which she did to make some extra money. In addition to the financial strain from the husbands not working, the wife testified that she was embarrassed by her husband's daily routine of staying home because in her culture a man is supposed to work. To compensate, the wife lied to her colleagues, neighbors and family about the husband's unemployment. When asked why she put up with the husband's behavior, she testified that in her culture one has to try everything to make a marriage work and to avoid divorce.
The wife requests that the court impute at least $40,000.00 of income to the husband for the purposes of calculating child support
. The wife testified that prior to the marriage the husband held a job for several years and that his affidavit of support that he submitted when the parties applied for her green card indicated that he made $20.00 per hour. The wife also testified that the husband told her that he had a job earning $40,000.00 at the beginning of their marriage. The husband conceded to this and testified that he worked for McDonald's from 1997 to 1998 and earning $42,000.00. The husband testified that he believed he could earn $60,000.00 because of his education and experience. On cross-examination, as follows:
Although the wife requests by way of summation that $40,000.00 be imputed to the husband, this court notes that the wife's 2010 affidavit of net worth on page 12 under “Support Requirements” requests a salary of $60,000.00 be imputed to husband and the wife testified on November 18, 2011 at page 57 that she requests $50,000.00 be imputed to the husband.
Q So 60,000 is a fair number for your income?
A How much?
Q 60,000
A You know
Q Yes or no?
A Probably is more, but when I don't have a job I go with 60,000
Furthermore, he testified that in a recent job interview he requested a $60,000.00 salary. However, the husband also testified that has never earned more than $42,000.00. The husband also testified that he is qualified not only as a teacher or engineer, but also as a marketing statistical analyst or business analyst because of his degree of education in research and management.
The wife submitted into evidence, without objection, a list of jobs and their respective salaries from salary.com. According to this list, a starting position in the husband's field based on his masters degrees and experience could potentially earn a $50,000.00 to $60,000.00 salary. At this time, the husband receives $1,200.00 each month which is $14,400.00 annually from his sister. Prior to September 2010 the husband admits he received $2,000.00 a month from his sister.
The wife testified that during the five (5) years preceding the commencement of this action, from 2002 through 2007, the family took several vacations which were all paid for by the wife. After the son was born they traveled to Iran. They also visited Germany, Hawaii, California, Puerto Rico, Miami and Virginia. The husband offered no testimony contradicting the wife's testimony regarding the parties' standard of living.
The parties concede that during the marriage the wife's income paid all household, credit card and insurance bills. The wife testified that all of the bank cards were in her name individually and that she was in possession of them most of the time, although the husband used them too whenever it did not require her signature or pin number, for example online purchases. She further testified that she opened and managed three (3) bank accounts in her name in addition to credit cards which was reflected in her affidavits of net worth. However, the husband contends that it was he who was responsible for the payment of the household bills. He avers that his wife did not understand how to manage the parties' finances including the payment of monthly bills despite his repeated efforts to teach her the necessary skills. He testified that she did not know how to write a check and that she simply wanted him to take charge of the financial affairs of the family.
Maintenance
Initially, the husband testified that he was requesting $3,000.00 a month in spousal support. However, when he itemized his expenses at trial, he retracted his request for $3,000.00 and instead requested $2,300.00 in spousal support. He contends that he sacrificed his career for the benefit of the wife.
It is clear from the testimony that the parties were married in 1996, their child was born in 2002 and the wife completed her fellowship in 2008. At no time prior to the birth of the parties' child, upon the completion of the wife's fellowship or the child's attending school full time did the husband maintain full time employment. The husband proffers that the basis for him not working during the marriage was to benefit the wife's career and this sacrifice in consideration of his age, 56, has limited his ability to have a “lucrative engineering job”.
Although the husband testified that he did not work because the wife wanted him to remain at home, he also testified that he tried to find employment but was unsuccessful. This court notes that the husband also testified at the custody trial as to his lack of employment. He stated that he was not working because he was paralyzed by his quest for custody. The custody decision was rendered on June 23, 2010.
The wife requests that the court deny any maintenance award to the husband based upon the husband's refusal to seek employment during their marriage. The wife testified that she was often forced to work overtime or two (2) jobs simply to meet their monthly bills. Alternatively, the wife requests that, based on the reasonable needs of the husband in view of the standard of living the parties established during the marriage, the court should calculate his maintenance based on her average salary during the marriage, which was approximately $50,000.00. The wife testified that in 1997 and 1998 the husband worked on and off while the wife studied for her medical boards. The wife testified that during that time, she also took care of all of the household chores and cleaning. It was clear to the court during the custody trial that the husband's involvement with the child rearing was questionable. He often appeared to an obstructionist in assisting in the child's development with minimal insight. For example, he opposed the child's attendance in preschool and necessary speech therapy and he often placed the child in diapers while the wife was toilet training the child. The husband was also the subject of an A.C.S. investigation regarding the parties child which resulted in an indicated report. Throughout the proceeding it appeared to be a pattern of the husband to isolate and physically remove himself from events involving social interaction with others. He never fully explained to the satisfaction of the court why he does not work.
As indicated above, the wife avers that in 1998, while studying, she worked as a medical assistant because the husband was not earning a steady income. She testified that from 1996 to1998 the family finances were so dire that the husband's father had to send them money. The wife also testified that she had to use her own savings to pay for their rent. During this time, the wife also testified, that she was studying and taking care of the house. When she was working in 1998, the husband often made her request an advance of her paycheck because they needed the money. She testified that she requested the advance reluctantly and that it was an embarrassing occurrence. She testified that she knew he could work if he tried because prior to their marriage he maintained a job for several years, but after the wife moved to Michigan to live with him, his employment varied and was, at best, sporadic temporary odd jobs. For example, the husband worked at McDonald's for a short period, and then worked as a contractor for a two (2) week period, then earned $10.00 an hour for a brief time, but then stopped working and collected unemployment benefits. The wife testified that as soon as the husband saw the wife take any action, for example a household chore, then he would stop doing that activity.
After the wife passed her medical boards, she testified that she consulted with the husband to determined which residency program to accept; New York or Michigan. She considered staying in Michigan since the husband had some employment history there, however, the wife testified that the husband told her to accept the residency in New York immediately and that he could find a job in New York. The wife testified that she even asked the husband again to consider whether he would prefer staying in Michigan for his employment contacts. She testified in detail that he told her to sign the New York contract immediately, even though she told him she had four to six (4–6) weeks to consider the offer. It is undisputed that after their move to New York in 2000 the husband stopped working altogether. The wife contends that it was the husband's choice not to work despite her repeated requests that he find work.
At the trial the wife testified that she practiced medicine for three (3) years between 2007 and 2010. The wife contends that if the court requires that she pay maintenance that it be calculated from her income prior to the commencement of the divorce and not based on her current income. She contends that this is reasonable because the husband played no role in her studying or training that would result in her higher earning capacity. She testified that he did not support her or the household while she worked to acquire her license. She testified that he did the bare minimum by cooking for himself and cleaning his laundry, but did not cook for her or clean the house in a satisfactory manner. In fact, she testified that she often had to clean after him because his inadequate cleaning led to cockroaches. She was also responsible for bathing the child, making any medical appointments, contacting the super when anything needed repair in the apartment, making her own meals and doing her own laundry. The wife testified that her parents visited from March 2002 through September 2002 and at that time the wife's mother prepared the family meals. She testified that the parties shared the responsibility for grocery shopping.
The husband contends that he took care of the child and the household chores and supported the wife while she studied and trained, and therefore is entitled to the maximum amount of maintenance. He testified that since the wife commenced this action he relies on his sister and other family members to survive financially. They gave him approximately $2,000.00 each month on a regular basis to support himself during this proceeding but reduced the amount to $1,200.00 a month in the recent months because his expenses went down. He testified that his family members will no longer be able to support him in the future and that he wants to match his standard of living to that of the wife's.
The husband also testified that since the wife commenced the divorce proceeding he has sought full and part-time employment at numerous places including a McDonald's in Manhattan. He testified that he sent 200 resumes by facsimile to prospective employers. Although the husband testified that he had the confirmations for these 200 facsimiles at home, incredibly, he failed to proffer them at trial. He testified that he received almost no responses and no job offers. When asked where he sent the 200 facsimile transmissions, he answered that he sent them to numerous employment agencies, management consultant firms and some private high schools outside of New York City. To bolster this claim the husband submitted a typed diary of jobs and their location from January 5, 2011 to June 2, 2011. Examples of the positions itemized in the husband's job search diary are senior process engineer, senior statistical analyst, senior marketing associate, research marketing specialist and senior manufacturing engineer. The husband testified that his applications were to schools in Long Island and Westchester because there was a high demand for math teachers, for which he testified he had a lot of experience. He also testified that he applied to some New York City public schools. On direct examination the husband was unable to name one (1) employment agency or one (1) school that he applied to during his job search. On cross-examination, he testified to the contrary that he had not considered seeking employment with the New York City Department of Education. He also testified that he was qualified for all the jobs he applied to, which included some marketing statistical analyst and business analyst positions. On cross-examination he also admitted to the address on his resume being the marital residence where he has not resided for quite some time in compliance with this court's pendente lite order awarding the wife exclusive occupancy. The husband failed to provide an explanation as to why he used that address, nor did he provide an explanation as to how he would retrieve any responses by mail. The husband simply testified that any potential employer could telephone or email him. He testified that his reasonable earning capacity is $60,000.00. He further testified that a fair number for his income “[p]robably is more, but when I don't have a job I go with $60,000.00”.
Child Support
The wife's most recent tax return in evidence is 2009 and the reported income is $253,011.00. The husband's income is $14,400.00 based upon his testimony that he receives the sum of $1,200.00 each month from his sister.
The wife requests that the husband pay child support in the sum of $510.00 each month, retroactive to the date of the commencement of this action, December 27, 2007. The wife avers that she is the sole supporter of their son, as the husband has not made any financial contribution to the support of their son during the pendency of this proceeding.
The wife testified that the child's monthly expenses include his private school tuition at the Lutheran Elementary School which costs $487.00 each month and $250.00 each month for after-school care. Additionally, the child receives speech therapy for two (2) hours each week. One hour of therapy is paid by the Board of Education and the second hour is paid by the wife at the cost of $140.00 each week. The child is tutored in math for one (1) hour a week at the rate of $50.00. This court notes that at the custody trial the husband maintained that he was against the child attending private school or day care, and that notwithstanding evidence to the contrary, he did not believe the child needed speech therapy.
The wife testified to the child's extracurricular activities including soccer, basketball, chess and swimming class at $40.00 per hour.
The wife further testified that she intends to enroll the child in additional extracurricular activities which include music lessons and a martial arts class. The cost of these programs were not known to the wife at the time of trial. Finally, the son attends summer day camp that costs $3,000.00 each summer.
It is not clear to this court if each of these activities cost $40.00 an hour or if this cost is only for swimming
The husband contends he should pay the statutory minimum requirement of $25.00 per month for child support. He testified that he is unemployed and his unemployment is not willful. He avers that his sole source of financial support is the monies that his sister provides on a monthly basis.
Enhanced Earnings
The wife received her certificate in internal medicine during the time of the marriage. The court appointed Financial Appraisal Services, Inc. by Joel A. Rakower to value the certificate. The valuation report dated June 2, 2009, values the licence at $361,000.00. The report was admitted into evidence, without objection. Neither party called the expert to cross-examine on the valuation nor did either party call their own expert. Neither party proffered any testimony or evidence as to tax impacting of this asset.
The wife testified that the husband was against the wife taking classes to prepare her for the medical board exams. She also avers since the parties' were financially struggling she told her parents that the books she had were not in good quality so her parents would send books from Iran for her to study thereby saving her the cost of her medical books. At other times, the wife used the books at the library. Further, the wife contends that she had to work as a medical assistant while studying because the parties were unable to pay their monthly bills since the husband refused to work. Nevertheless, the wife passed her exams because of her hard work as both she and the husband testified.
The wife further testified that because the husband refused to obtain employment during the course of the marriage, and especially when the wife was studying for her boards and license, she did not stay on for an additional year in her fellowship which she testified would have resulted in more offers and a potentially greater income had she completed the additional year of training. Furthermore, not only did the husband refuse to work, but he also did not fulfill the duties of a homemaker. As indicated above, the husband activities in the home were limited. All repairs were the responsibility of the wife to address. The wife testified that once the husband saw that she could do something in the house, he stopped making any attempt to do that activity himself.
The wife avers that the birth of their child did not bring any change in the husband's behavior or responsibilities in the family. The parties each testified that they cared for the child; however, the husband testifies that he did not bathe or read to the child. He testified that he took the child for walks or watched television with the child. The wife testified that although both parties cared for the child, she bore the greater share of the responsibility. She made all of the child's medical appointments, investigated schools and found the apartment when the parties relocated to New York. Nevertheless, in her proposed statement of disposition, the wife concedes that her degree is a marital asset and is worth, as appraised, $361,000.00. The wife, by way of summation, avers that if any award in equitable distribution is warranted it should not exceed 5% of the value of the wife's internal medicine certification or $10,050.00 after tax impacting.
Despite the wife's request, by way of summation, no evidence as to tax impacting has been proffered.
The husband seeks an equitable share of the wife's license. He contends that he helped with the household chores, thereby freeing the wife to study. Although he testified that he helped her study, he could not recall the approximate date of the wife's board exam. The only thing that both parties concede is that the husband booked a hotel room for the wife to stay in before taking her exam. However, he concedes that it was her hard work and her dedicated studying that led to her passing her exams on her first attempt. The husband failed to proffer a credible explanation as to why he was not employed during the time the wife was in school notwithstanding his advanced degrees and prior work experience. The husband further testified that when the parties were expecting their child he studied up on the subject since they didn't have any experience. He testified that he read the book, “What to Expect When You're Expecting”. He also testified that he took care of the home during the time of the wife's residency when she was gone for 16 hours a day. Although they got a lot of take -out, he also testified that he never let the wife touch that food. Sometimes he ate the take -out food but also made home cooked meals for the wife. He further testified that he assisted the wife with computer work, for example, “emailing, those types of things .... almost everything except working the residency program”. The husband avers that the wife's first year of residency was difficult but his contribution was to encourage her since he “had a lot of experience in the United States ... how to deal with people, working, working with men and those types of things”. He contends that the parties did not trust the clothes washing machine so although they used the washing machine for their clothes, the husband hand washed all of their child's clothes.
Equitable Distribution of the Bank Accounts
The wife contends that there are three (3) bank accounts in her name individually: (1) Chase Bank NA checking account with the account number ending in 8865, and according to the Chase Bank statement from November 20, 2007 through December 18, 2007, with a balance in the amount of $3,646.00 at the commencement of this action; (2) Chase Bank savings account with the account number ending in 8801, and also according to the Chase Bank statement from November 20, 2007 through December 18, 2007, with a balance in the amount of $20.00 at the commencement of this action; and (3) NYM Federal Credit Union account with the account number ending in 8523, with a balance in the amount of $1,172.85 at the end of the statement period.
The wife opened these accounts during the marriage, was the primary user of these accounts and deposited her earnings in these accounts. She itemized these accounts as separate property in her revised statement of proposed disposition dated September 22, 2010, and requested the court to declare them her separate property. Since these accounts contain her income and remain in her name and possession only, she avers that the husband is not entitled to any portion of these accounts
Although this action was commenced in December 2007, this April through June 2008 statement is the only statement for this account in evidence.
The husband contends that he should be entitled to one-half the marital balance of these accounts since they are marital property. This court notes that despite the husband's insistent testimony that he managed the finances for the family since the wife did not know how to write a check, the husband failed to testify about these bank accounts or include them in his first or second affidavit of net worth. The court finds his statements related to the management of the family finances false.
Life Insurance
The wife testified that she has life insurance on her life in the sum of $1,500,000.00. Pursuant to her affidavit of net worth dated September 2010, the wife has a term life policy with Guardian. She acquired this policy in 2004.
Automobile
The wife owns a 2004 Toyota Rav4. Pursuant to her affidavit of net worth dated December 27, 2007, the wife is the titled owner of this vehicle and there is no lien on this vehicle. This vehicle was purchased for $20,000.00. The wife submitted into evidence, unopposed, the Kelly Blue Book value of the this vehicle in fair condition for the sum of $7,000.00.
Credits and Debt
The wife testified that since the commencement of this action she has provided the husband with the sum of $2,750.00 in cash and requested that this sum be credited against any equitable distribution award. Further, she testified and the husband does not dispute that he took $3,800.00
from her credit card as a cash advance in 2007
The wife testified at different times to the amount of the husband's withdrawal being $3,800.00 and $4,000.00”.
without her permission and the wife requests that she be credited against any equitable distribution, as well. The wife also testified that she should be credited fifty (50%) percent of all marital debt against equitable distribution.
The wife testified that this occurred “around May, 2007–December, 2007. May, 2008.”
The wife offered the following account statements at trial:
Neither party testified as to these expenses.
Image 4 (5.68" X 5.29") Available for Offline Print
Editor's Note: The preceding image contains the reference for footnote
This is the account from which the husband withdrew a cash advance in the amount of $3,800.00 to $4,000.00.
Counsel Fees
The wife seeks an award of counsel fees in the sum of $25,000.00 and $5,800.00 for other costs related to this litigation. The wife testified that her initial attorney, Jamshid Irani, was retained for the sum of $3,000.00. There are no billing statements or testimony related to Mr. Irani's counsel fees.
Thereafter, the wife retained her current attorney on June 3, 2008. The initial retainer agreement was in the amount of $10,000.00. The wife testified that she borrowed money from a friend in order to pay this retainer. The wife's counsel billed $300.00 per hour. The total billing for legal services for the period of June 2008 through September 2010 was $44,175.00. To pay some legal fees, the wife continued to borrow money from friends. She later borrowed money from a union bank located across the street from a hospital to repay the loans to her friends.
This court relies on NYM Federal Credit Union, exhibit 25, which is a statement from April 1, 2008 to June 30, 2008. As of June 30, 2008, this account had a balance of zero.
The wife testified that during the proceedings, her counsel sent several settlement proposals to the husband which went unanswered. As a result, the wife's attorney prepared and sent two (2) or three (3) settlement proposals to the husband, but the husband's attorney only answered a portion of one (1) proposal. The parties had a grounds trial, custody trial and a trial on finances. In her summation, the wife contends that the husband delayed this litigation to so that it lasted more than four (4) years, despite her repeated efforts to move the process forward with settlement proposals and out of court agreements. She claims that for a case with such modest assets, there was no reason why litigation has lasted for over four (4) years and, therefore, she should not be responsible for the husband's counsel fees. The court notes that the husband insisted that all decisions be made by the Judge and was uncooperative in the filing of proposed statement of disposition.
On September 19, 2010, the parties entered into a consent order wherein, the wife paid the husband's attorney, Mr. Gilmer, $3,000.00 “... subject to reallocation as an advance against an equitable distribution or counsel fee award.”
This court appointed Eli Yeger an attorney for the child by order date June 11, 2009. Paragraph 6 of that order reads that, subject to reallocation at trial, the retainer and all subsequent compensation, including reimbursement for disbursements, shall be paid to the attorney for the child by the parties at the rate of 75% by the wife and 25% by the husband. However, the wife testified that she was responsible for the total cost of the attorney for the child, subject to reallocation at the time of trial. The wife paid $3,000.00 to the attorney for the child. On June 16, 2008, this court appointed Financial Appraisal Services to appraise the wife's internal medicine licence.
On November 25, 2008, the parties entered into a consent order wherein the cost of the appraisal was apportioned; the wife was to pay 90% and the husband to pay 10% of the cost. The wife testified that the cost of the appraisal was “about $2,500.00”. The wife further requests that the husband pay for the cost of duplicating evidence in the amount of $629.00; transcripts for the grounds custody and equitable distribution trial in the amount of $2,335.00; and, the attendance and bust fee for the deposition that the husband failed to appear at in the amount of $135.00, totaling $3,989.00.
That portion of the order stating how the cost of the appraisal shall be paid was left blank.
The husband does not testify about his request for counsel fees. Although counsels pre-marked exhibit list shows plaintiff's 37 to be the husband's counsel bills, this item is crossed out and initialed by both counsel. On June 6, 2011, the record reflects that the husband's counsel's billing statements were not part of the court record. The only information pertaining to the husband's request for counsel fees is in his summation wherein he requests that the wife pay all his counsel fees as she is in the better financial position. This court notes that the husband's affidavit of net worth from 2008 is blank in the section titled “Counsel Fee Requirement” and does not attach a retainer statement. However, his second affidavit of net worth dated September 2010 requests counsel fees in the sum of $10,000.00, but again the husband fails to annex a copy of his retainer statement.
Refusal to Deliver a Religious Divorce
At trial on November 18, 2010, the wife testified that since the date she commenced this action, on December 27, 2007, she has repeatedly asked the husband, both in person and by email, to accompany her to a mosque to obtain a religious divorce. The wife avers that in accordance with the parties' religious practices in the Islamic faith, the husband must accompany the wife to a mosque where “... there is a gentleman or lady that will read some part of the Koran that we are divorced. So it's going to be transported to [her] birth certificate” thereby officially divorcing the parties. The wife testified that this is the only way the parties can obtain a religious divorce. The wife also testified that in the Islamic faith until her birth certificate reflects her religious divorce, she will be unable to remarry. She testified that she located a mosque located near both parties in an effort to make it as convenient as possible. Despite these efforts and the wife's repeated requests, the husband has not participated in this process. He simply states “no comment. I have to talk to my lawyer”. Thereafter, the husband conceded that he had still not accompanied the wife to a mosque. There was no testimony by the husband to explain his refusal to participate in this process.
In addition to the wife being unable to remarry if she does not obtain a religious divorce she avers that if she were to travel to Iran, the husband could legally withhold his permission for her to leave Iran indefinitely. The wife asserts that she would have no remedy; a civil judgment of divorce would bear no impact in this situation. In consideration of the husband's failure to provide the wife a religious divorce, the wife requests that the husband be barred from equitable distribution and maintenance if within 45 days from the court's judgment he still has failed to cooperate in taking all steps necessary to secure the religious divorce. The husband contends that the issue of the religious divorce should have no impact on his award of maintenance or equitable distribution.
Mehrieh
The wife testified that Iranian society follows a practice of signing a “mehrieh” which is an amount of money paid or a gift given to the bride from the groom. The couple negotiates, agrees and signs the mehrieh which is a written marital contract. The wife testified that if this agreement is not signed by both parties at the time of the marriage ceremony, the religious ceremony does not take place. During the preparations the bride is to propose an amount to the groom to pay. In this case, the wife proposed that the husband pay to her 1,348 Iranian gold coins which are called Bahar Azadi. The wife testified that the Bahar Azadi are full gold coins that are sealed by a bank. She testified that she chose 1,348 gold coins based on the year she was born in her calendar. The husband rejected the wife's proposal and counter offered the amount of 1,000 coins. When the wife asked the husband why he was decreasing her request by 348 coins, she testified that he stated that he had to agree to an amount that he could pay her. Thereafter, the parties agreed on 1,000 coins, a silver mirror, candle sticks and a Koran. The wife testified that both parties had the opportunity to read the document in its entirety before signing the mehrieh. She also testified that they each signed various portions of the mehrieh in front of the person performing the marriage ceremony, and three (3) witnesses that included the wife's father, the husband's father and the wife's uncle. The wife testified that the coin value fluctuates on a weekly basis. At the time of trial, the wife testified that a coin was valued at approximately $340.00, but that a week prior, a coin's value was approximately $380.00, according to an official Persian news channel that announces its values. The wife further testified that as part of the agreement, any time after the marriage ceremony, she may ask the husband to pay her the financial portion of the agreement. She testified that she asked the husband for the coins on two (2) occasions since the marriage. The first time was immediately after moving to Michigan when she was studying for the Board exams, and did not have an income. She described the time period as a real struggle because the couple was unable to pay their rent and utilities. The husband did not respond to her request. The second time she asked the husband for the coins was on the subway in New York City. The wife testified that she does not recall when this was but that it was about one (1) year before her parents visited in the summer of 2007. Both parties testified that the husband just laughed at the wife's request and did not respond seriously. It should also be noted that the husband did give the wife a Koran, one of the gifts that was indicated in the agreement, even though the husband avers that these items were merely symbolic gifts.
The wife contends that she is entitled to these coins or their equal value because even though the agreement was part of a religious ceremony, the contract itself is a legal document in Iran with available recourse if breached. The wife further testified that the document should be considered a valid document by this court since it was accepted as a legitimate document by the United States government when it issued her a green card.
The husband contends that the mehrieh is not a legal document, but that it is a religious document and therefore, this court should not interfere in a religious question. A section of the mehrieh is dedicated to the items and money the parties agree on before the marriage that the husband will give to the wife. The translated version reads as follows, “[a] volume of Holy Koran, a pane of mirror and a pair of candlesticks which were received by the wife and 1000 Bahar Azadi Gold coins which the husband is liable to submit to his wife on her demand”. In the original document, the parties concede that the phrase “Inshah a allah” (spelled phonetically) precedes the portion of the marriage agreement that indicates what the husband owes the wife. According to the wife's testimony this phrase translates more or less to “God willing”. The husband avers that because the phrase “God willing” precedes the portion of the agreement that states that the husband owes the wife 1000 coins, that it is not a legal obligation, and that the coins are meant as a symbolic gift, or ceremonial, just as are the candle sticks and Koran. The husband testified on direct examination, “[g]old coins, I mean you can give it, maybe buy diamond ring or something, but together than that, I'm not dealing with gold. I have no—I never—I don't like gold. I never wear gold. Silver I like but I don't like gold.”. When again asked about the gold coins on direct examination the husband testified that “It's traditional. Even people don't you know—as they said about the gold, when somebody talk about the gold, they said nobody giveth, nobody taketh. That's the way they look at it (laughing)”. The husband conceded that he recalls one occasion where the wife requested payment of the gold coins, but he simply thought she was joking. Upon reflection, he testified that her request may have been serious and not intended as a joke.
In the official translation of the mehrieh that was submitted to the court there is a section titled “CONDITION”, which states the following:
A–By a separate binding contract, the wife made the conditions that if divorce application would not be filed by her and the marriage would not be dissolved as a result of her default of matrimonial duties or misbehavior or maltreatment, as judged by the court, the husband would be bound to transfer freely to the wife up to half of the properties acquired during the marriage or its equivalent at the court's discretion;
B–By a separate binding contract, the husband irrevocably empowered the wife including right of substitution, so that she may call to the court and obtain authorization of the court and by choosing type of divorce to dissolve the marriage in the following circumstances and also empowered irreversibly the wife with right of substitution that she may accept a proposed waiver of the marriage settlement.
ON THE FOLLOWING CASES THE WIFE CAN APPLY TO THE COURT FOR THE ISSUANCE OF DIVORCE CERTIFICATE AS FOLLOWS:
1–Man's refusal for giving alimony for a period of six months and inability of man to give alimony for six months.
2–Misbehavior or misrealtionship by the husband to the extent of making the life unbearable for the wife....
5–Non observance of court's decree for non practicing in a profession which shall endanger woman's family prestige....
We, the wife and husband signed and accepted all conditions in this marriage certificate with full knowledge.
Discussion
Credibility
It is well established that the “trial court, which had the opportunity to view the demeanor of the witnesses, was in the best position to gauge their credibility” (Massirman v. Massirman, 78 A.D.3d 1021, 911 N.Y.S.2d 462 [2 Dept., 2010], quoting Peritore v. Peritore, 66 A.D.3d 750, 888 N.Y.S.2d 72 [2 Dept., 2009]; see also Varga v. Varga, 288 A.D.2d 210, 732 N.Y.S.2d 576 [2 Dept., 2001], quoting Diaco v. Diaco, 278 A.D.2d 358, 717 N.Y.S.2d 635 [2 Dept., 2000]; Ferraro v. Ferraro, 257 A.D.2d 596, 684 N.Y.S.2d 274 [2 Dept., 1999] ), and that “[i]n 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” (Goldstein v. Guida, 74 A.D.3d 1143, 904 N.Y.S.2d 117 [2 Dept.,2010], quoting Ivani v. Ivani, 303 A.D.2d 639, 757 N.Y.S.2d 89 [2 Dept.,2003], quoting L'Esperance v. L'Esperance, 243 A.D.2d 446, 663 N.Y.S.2d 95 [2 Dept.,1997]; see also Schwartz v. Schwartz, 67 A.D.3d 989, 890 N.Y.S.2d 71 [2 Dept.,2009]; Krutyansky v. Krutyansky, 289 A.D.2d 299, 733 N.Y.S.2d 920 [2 Dept.,2001] ).
The trial court's assessment of the credibility of witnesses and evidence is afforded great weight on appeal ( see Alper v. Alper, 77 A.D.3d 694, 909 N.Y.S.2d 131 [2 Dept.,2010]; see also Massirman v. Massirman, 78 A.D.3d 1021, 911 N.Y.S.2d 462 [2 Dept.,2010]; Schwartz v. Schwartz, 67 A.D.3d 989, 890 N.Y.S.2d 71 [2 Dept.,2009]; Jones–Bertrand v. Bertrand, 59 A.D.3d 391, 874 N.Y.S.2d 152 [2 Dept.,2009]; Wortman v. Wortman, 11 A.D.3d 604, 783 N.Y.S.2d 631 [2 Dept.,2004] ).
This court had the opportunity to observe the parties at many court appearances, during numerous days of the custody trial and over the course of three (3) days required for the financial trial. Based thereon, this court finds that there are severe credibility issues with the husband's testimony. There is ample evidence in the record which indicates to this court that the husband lacks credibility. He testified that the wife does not know how to write and therefore, was incapable of paying a bill during the time of the marriage. However, the husband was unable to testify with any specificity about the bank accounts. Furthermore, he did not list the bank accounts in either of his affidavits of net worth. At times, the husband testified that the reason for not working was that the wife wanted him in the home but he also testified that he could not find employment during the time of their marriage. Although he held himself out as the homemaker he testified that his customary activities with the child were watching television and going for walks. It is evident that the husband did what he wanted when he wanted without consideration to the wife, their marriage or their family unit. It is clear to this court from observing the totality of the trial testimony that the husband's testimony was tailored around the relief he sought. This court finds that the wife testified credibly during the trial.
Imputation of Income
Domestic Relations Law section 240 1–b (b)(5)(iv) states that “... at the discretion of the court, the court may attribute or impute income from, such other resources as may be available to the parent, including, but not limited to:
(A) non-income producing assets,
(B) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirectly ... confer personal economic benefits,
(C) fringe benefits provided as part of compensation for employment, and
(D) money, goods, or services provided by relatives and friends;
Furthermore, DRL section 240 1–b (b)(5)(v) specifically permits “an amount imputed as income based upon the parent's former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support.”
“A court is not required to rely upon a party's account of his or her finances in determining that party's income ( see DeSouza–Brown v. Brown, 71 A.D.3d 946, 947, 897 N.Y.S.2d 228)” (Manning v. Manning, 82 A.D.3d 1057, 920 N.Y.S.2d 126 [2 Dept., 2011]; see Khaimova v. Mosheyev, 57 A.D.3d 737, 737, 871 N.Y.S.2d 212 [2 Dept., 2008], quoting Matter of Moran v. Grillo, 44 A.D.3d 859, 861, 843 N.Y.S.2d 674 [2 Dept., 2007]; see also Barnett v. Ruotolo, 49 A.D.3d 640, 854 N.Y.S.2d 155 [2 Dept., 2008] ).
In determining a party's support obligation, “[a] court need not rely upon a party's own account of his finances, but may impute income based upon the party's past income or demonstrated future potential earnings' (Steinberg v. Steinberg, 59 A.D.3d 702, 705, 874 N.Y.S.2d 230). The court may impute income to a party based on his or her employment history, future earning capacity, educational background, or money received from friends and relatives' (Wesche v. Wesche, 77 A.D.3d 921, 923, 909 N.Y.S.2d 764). “Where a party's account is not believable, the court may impute a true or potential income higher than alleged” ( Id., citing Lilikakis v. Lilikakis, 308 A.D.2d 435, 436, 764 N.Y.S.2d 206)” (Duffy v. Duffy, 84 A.D.3d 1151, 924 N.Y.S.2d 449 [2 Dept., 2011] ).
The wife requests that $50,000.00 of income be imputed to the husband. The basis for this request stems from the internet site salary.com. The wife posits that in consideration of the husband's education and prior work experience salary.com predicts that he is capable of earning a salary in the amount of $60,000.00. Although the printout from this web site was moved into evidence at the trial, without objection, this court cannot rely upon salary.com to determine the earning capacity of the husband. The wife failed to set forth a sufficient foundation for the husband's earning capacity. The wife's position is not based upon income the husband earned during the time of the marriage. The parties are in agreement that the husband did not work during the time of the marriage. His earning capacity, as proffered by the wife, is simply premised upon the husband's education and degrees. “The determination of whether to award maintenance rests in the sound discretion of the trial court [citations omitted]. However, there must be some evidence in the record from which a proper evaluation of employability can be assessed ( see Halaby v. Halaby, 289 A.D.2d 657, 660, 734 N.Y.S.2d 271 [2001];Semans v. Semans, 199 A.D.2d 790, 790–791, 605 N.Y.S.2d 510 [1993], lv. denied 83 N.Y.2d 758, 615 N.Y.S.2d 875, 639 N.E.2d 416 [1994] )” (Schwalb v. Schwalb, 50 A.D.3d 1206, 854 N.Y.S.2d 802 [3 Dept., 2008] ). In this case the wife failed to proffer sufficient evidence for a proper evaluation of the husband's earning capacity. A vocational expert is the proper means of determining a persons earning capacity in this case.
However, the husband testified to receiving $1,200.00 each month from his sister. A pattern of substantial gifts to the husband from his sister shall be imputed income to the husband ( see Fabrikant v. Fabrikant, 62 A.D.3d 585, 879 N.Y.S.2d 431 [1 Dept., 2009]; see also Scopelliti v. Scopelliti, 934 N.Y.S.2d 849, 850, 90 A.D.3d 1016, [2 Dept., 2007] ). He also testified that he was qualified for employment in the salary range of $60,000.00.
Maintenance
Every case of maintenance must be determined on its unique facts and the determination of an appropriate standard for maintenance rests on a host of factors that the court shall consider, which are set forth in the Domestic Relations Law § 236[B][6][a]
This statute was effective September 22, 2003 to August 31, 2009. The instant divorce action was commenced on December 27, 2007; therefore, the applicable version of the statute is that which became effective September 22, 2003 through August 31, 2009.
(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
(2) the duration of the marriage and the age and health of both parties;
(3) the present and future earning capacity of both parties;
(4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;
(5) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;
(6) the presence of children of the marriage in the respective homes of the parties;
(7) the tax consequences to each party;
(8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(9) the wasteful dissipation of marital property by either spouse;
(10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and
(11) any other factor which the court shall expressly find to be just and proper.
It is well-settled that
[t]he amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts' “ (DiBlasi v. DiBlasi, 48 A.D.3d 403, 404, 852 N.Y.S.2d 195, quoting Wortman v. Wortman, 11 A.D.3d 604, 606, 783 N.Y.S.2d 631). Maintenance is designed to give the spouse economic independence and should continue only as long as is required to render the recipient self-supporting” (Schenfeld v. Schenfeld, 289 A.D.2d 219, 220, 734 N.Y.S.2d 465 [internal citations omitted]; Palestra v. Palestra, 300 A.D.2d 288, 289, 751 N.Y.S.2d 509). In determining the appropriate amount and duration of maintenance, the court is required to consider, among other factors, the standard of living of the parties during the marriage and the present and future earning capacity of both parties ( seeDomestic Relations Law § 236[B][6][a] [citations omitted] )” (DiBlasi v. DiBlasi, 48 A.D.3d at 404, 852 N.Y.S.2d 195, quoting Haines v. Haines, 44 A.D.3d 901, 902, 845 N.Y.S.2d 77).”
(Charap v. Willett, 84 A.D.3d 1000, 924 N.Y.S.2d 433 [2 Dept., 2011] )
Pursuant to the case law at the commencement of this action, “the court must consider the payor spouse's reasonable needs and the reasonable needs of the recipient spouse and the pre-separation standard of living in the context of the other factors enumerated in Domestic Relations Law § 236(B)(6)(a), and then, in [its] discretion, fashion a fair and equitable maintenance award accordingly' “ (Hartog v. Hartog, 85 N.Y.2d 36, 52, 623 N.Y.S.2d 537, 647 N.E.2d 749 [1995], quoting Domestic Relations Law § 236[B][6][a][1][11]; see Chalif v. Chalif, 298 A.D.2d at 348, 751 N.Y.S.2d 197 [2002] );see also Griggs v. Griggs, 44 A.D.3d 710, 844 N.Y.S.2d 351 [2 Dept., 2007]; Appel v. Appel, 54 A.D.3d 786, 864 N.Y.S.2d 92 [2 Dept.,2008] ).
The factors enumerated in DRL 236 must be evaluated in light of the principle that “the overriding purpose of a maintenance award is to give the spouse economic independence” (Bains v. Bains, 308 A.D.2d 557, 559, 764 N.Y.S.2d 721 [2 Dept.,2003]; see O'Brien v. O'Brien, 66 N.Y.2d 576, 489 N.E.2d 712 [1985];see also Abrams v. Abrams, 57 A.D.3d 809, 870 N.Y.S.2d 401 [2 Dept.,2008] ). It is well-established that “[s]pousal support should be awarded for a duration that would provide the recipient with enough time to become self-supporting” ( Bains, 308 A.D.2d at 553, supra; see Schenfeld v. Schenfeld, 289 A.D.2d 219, 734 N.Y.S.2d 465 [2 Dept.,2001]; Granade–Bastuck v. Bastuck, 249 A.D.2d 444, 671 N.Y.S.2d 512 [1998] );Baron v. Baron, 71 A.D.3d 807, 897 N.Y.S.2d 456 [2 Dept.,2010] ).
In the case at bar, the parties were married for 11 years prior to the commencement of this action. The husband is 56 years of age and the wife is 41 years of age. Both parties are in good health. The husband is unemployed. As elaborated above, this court imputed income to the husband in the annual sum of $14,400.00 based upon regular and ongoing monetary gifts to him from his sister.
When the parties married, the husband virtually stopped working. The husband has not held any notable employment since the inception of the marriage. Throughout the marriage, the wife's income was the exclusive source of financial support for the family. Furthermore, this court notes that the wife has a lucrative career in medicine and that her future earning potential is vastly greater than what the husband can reasonably anticipate earning in the future. However, this court also notes that the husband has made little to no effort during this lengthy litigation to seek employment. The court believes he simply refuses to work. This court noted in its custody decision that”[t]he Court cannot help but think that it was defendant's real desire to use child support from the plaintiff's earnings because the plan that he even proposed for custody, if he were to get custody, lacked credibility and reason and it was not one that would benefit the child”.
Under the facts and circumstances herein, including the parties' marital standard of living, their respective disparity in incomes, respective present and future earnings capacity, marital asserts, length of the marriage, age, physical and mental health, the tax consequences to each party and the time required for the husband to become self-sufficient, this court finds that an award of maintenance to the husband is warranted.
Applying the above-detailed statutory considerations to the facts of this case, and in consideration of the amount and duration specifically requested by the husband, this court awards the husband rehabilitative maintenance in the sum of $1,000.00 per month for 12 months retroactive to the date of first application ( seeDRL 240; see also Dooley v. Dooley, 128 A.D.2d 669, 513 N.Y.S.2d 167 [1987] ). Maintenance shall be taxable to the recipient-husband and deductible by the payor-wife to the extent permitted by law ( see26 USC § 71[b][1][B]; see generally Girgenti v. Girgenti, 81 A.D.3d 886, 917 N.Y.S.2d 258 [2 Dept., 2011]; Grumet v. Grumet, 37 A.D.3d 534, 829 N.Y.S.2d 682 [2 Dept., 2007]; Markopoulos v. Markopoulos, 274 A.D.2d 457, 710 N.Y.S.2d 636 [2 Dept., 2000]. The maintenance shall be payable on the first of each month commencing on the first of the month after entry of the judgment of divorce. Future payments shall terminate in the event of the husband's remarriage, his death or the wife's death. The husband's has advanced degrees and must now obtain employment.
This court notes that it rejects the wife's contention that a maintenance award to the husband be calculated from her income prior to the commencement of the divorce and not based on her current income. The basis for this request is that the husband did not contribute to the wife's enhanced earning capacity. Such a consideration may be made when equitably distributing the enhanced earning capacity, but is not a consideration when awarding maintenance.
Child Support
Section 240 of the Domestic Relations Law of New York provides guidelines by the Child Support Standards Act (“CSSA”) which must be considered in ascertaining child support. “[T]he CSSA provides a precisely articulated, three-step method for determining child support' [quoting Matter of Cassano, 85 N.Y.2d 649, 652, 628 N.Y.S.2d 10, 651 N.E.2d 878 (1995) ]. The first step requires the computation of combined parental income' (Domestic Relations Law § 240[1–b][b][4]; [c][1] ). The amount of income' attributed to each parent is derived by adding gross income, as reported on the most recent Federal tax return, and, to the extent not included as gross income, investment income, imputed income and other income received' by the parent from eight enumerated sources' “ (Matter of Graby v. Graby, 87 N.Y.2d 605, 609–610, 641 N.Y.S.2d 577 [1996], quoting Family Ct Act § 413[1][b][5].
After computing statutory income, a limited number of deductions are allowable under Domestic Relations Law § 240(1–b). The CSSA provides for eight categories of deductions from income, which includes maintenance payments and Federal Insurance Contributions Act (FICA) taxes paid (see Domestic Relations Law § 240[1–b][b][5][vii][A]–[H]. Significantly, receipt of a distributive award payments is not a statutory category of income, nor is the payment of a distributive award a recognized deduction.
The court next multiplies the combined parental income figure, up to a ceiling of $80,000, by a designated percentage based on the number of children to be supported, and then allocates that amount between the parents, applying each parent's respective portion of the total income to reach the amount of each parents support obligation (Domestic Relations Law § 240[1–b][b][3]; [c][2]. In the final step, where combined parental income exceeds $80,000, the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of [Domestic Relations Law § (1–b) ] and/or the child support percentage' (Domestic Relations Law § 240[1–b][c] [3] ).
(Holterman v. Holterman, 3 N.Y.3d 1, 814 N.E.2d 765 [2004] ).
The New York State legislature has since amended the Domestic Relations Law and, thereby, the CSSA formula to increase the statutory guideline cap. The CSSA cap is $136,000.00. Effective January 31, 2010,”[t]he court shall multiply the combined parental income up to the amount set forth in paragraph (b) of subdivision two of section one hundred eleven-I of the social services law by the appropriate child support percentage and such amount shall be prorated in the same proportion as each parent's income is to the combined parental income.” (DRL 240 1–b [c][2] ). The Social Services law states that:
[t]he combined parental income amount to be reported in the child support standards chart and utilized in calculating orders of child support in accordance with subparagraph two of paragraph (c) of subdivision one of section four hundred thirteen of the family court act and subparagraph two of paragraph (c) of subdivision one-b of section two hundred forty of the domestic relations law shall be one hundred thirty thousand dollars; provided, however, beginning January thirty-first, two thousand twelve and every two years thereafter, the combined parental income amount shall increase by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPIU) as published by the United States department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars.
(Social Services Law § 111–I[2][b] ).
Domestic Relations Law section 240 1–b (b)(5)(iii) further defines gross income. “[T]o the extent not already included in gross income in clauses (I) and (ii) of this subparagraph, the amount of income or compensation voluntarily deferred and income received, if any, from the following sources:
(A) workers' compensation,
(B) disability benefits,
(C) unemployment insurance benefits,
(D) social security benefits,
(E) veterans benefits,
(F) pensions and retirement benefits,
(G) fellowships and stipends, and
(H) annuity payments;”
It is well established that maintenance payments are properly considered income for the recipient spouse for the purpose of determining a final child support award ( see Lee v. Lee, 18 A.D.3d 508, 795 N.Y.S.2d 283 [2 Dept., 2005]; see also Krukenkamp v. Krukenkamp, 54 A.D.3d 345, 862 N.Y.S.2d 571 [2 Dept.,2008]; Lueker v. Lueker, 72 A.D.3d 655, 898 N.Y.S.2d 605 [2 Dept., 2010]. In this case, there was no pendente lite maintenance.
As detailed above, in determining a party's child support obligation, the court need not rely upon a party's own account of his or her finances, but may impute income based upon the parties' past income or demonstrated earning potential or on the income the parent is capable of earning “by honest efforts” (Morille–Hinds v. Hinds, 87 A.D.3d 526, 928 N.Y.S.2d 727 [2 Dept., 2011]; see also Genender v. Genender, 40 A.D.3d 994, 836 N.Y.S.2d 291 [2 Dept., 2007]; Westenberger v. Westenberger 23 A.D.3d 571 [2 Dept., 2005]; Rocanello v. Rocanello, 254 A.D.2d 269, 678 N.Y.S.2d 385 [2 Dept., 1998] ). This is particularly true where the record supports a finding that a parties' reported income on a tax return is suspect ( see Ivani v. Ivani, 303 A.D.2d 639, 757 N.Y.S.2d 89 [2 Dept., 2003]; see also Maharaj–Ellis v. Laroche, 54 A.D.3d 677, 863 N.Y.S.2d 258 [2 Dept., 2008]; Matter of Graves v. Smith, 284 A.D.2d 332, 725 N.Y.S.2d 367 [2 Dept.,2001] ). Further, it is well-established that the court can award child support based on the needs of the child where the court finds that a payor spouse's representations regarding income are not credible ( seeDomestic Relations Law § 240[1–b][k]; see also Lew v. Lew, 82 A.D.3d 1171, 920 N.Y.S.2d 230 [2 Dept., 2011]; Evans v. Evans, 57 A.D.3d 718, 870 N.Y.S.2d 394 [2 Dept., 2008] ).
Domestic Relations Law 240 1–b (b)(5)(iv) states that “... at the discretion of the court, the court may attribute or impute income from, such other resources as may be available to the parent, including, but not limited to:
(A) non-income producing assets,
(B) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirectly ... confer personal economic benefits,
(C) fringe benefits provided as part of compensation for employment, and
(D) money, goods, or services provided by relatives and friends;
Domestic Relations Law section 240 1–b (b)(5)(v) specifically permits “an amount imputed as income based upon the parent's former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support”.
The court next multiplies the combined parental income figure up to an initial statutory cap, which is currently combined parental income up to the sum of $136,000.00, by a designated percentage based on the number of children to be supported, and then allocates that amount between the parents, applying each parent's respective portion of the total income to reach the amount of each parent's support obligation ( see Holterman v. Holterman, 3 N.Y.3d at 11, 781 N.Y.S.2d 458, 814 N.E.2d 765,supra, quoting DRL 240[1–b][b][3]; [c][2] ). In the final step, where combined parental income exceeds the statutory cap, “the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of [Domestic Relations Law § 240(1–b) ] and/or the child support percentage” ( id ).
The “paragraph (f)” factors include the financial resources of the parents and child, the health of the child and any special needs, the standard of living the child would have had if the marriage had not ended, tax consequences, non-monetary contributions of the parents toward the child, the educational needs of the parents, the disparity in the parents' incomes, the needs of other nonparty children receiving support from one of the parents, extraordinary expenses incurred in exercising visitation and any other factors the court determines are relevant.
Finally, the court is required to articulate its reasons for awarding child support in addition to basic child support ( see Wallach v. Wallach, 37 A.D.3d 707, 831 N.Y.S.2d 210 [2 Dept., 2007], quoting Matter of Cassano v. Cassano, 85 N.Y.2d 649, 654–655, 628 N.Y.S.2d 10, 651 N.E.2d 878,supra; see also Clerkin v. Clerkin, 304 A.D.2d 784, 759 N.Y.S.2d 500 [2 Dept., 2003]; Wagner v. Dunetz, 295 A.D.2d 501, 744 N.Y.S.2d 344 [2 Dept., 2002] ).
The husband has not filed tax returns; he is unemployed and alleges to have no source of income.
Although such an order may reduce a party's child support obligation from that calculated by application of the CSSA statutory guidelines, “[i]n no instance shall the court order child support below twenty-five dollars per month” (Family Ct Act § 413[1][g]; see Domestic Relations Law § 240[1–b] [g] ). In addition, a noncustodial parent's child support obligation resulting from the application of the statutory guidelines may be reduced where that obligation would place that parent below the self-support reserve level ( seeFamily Ct Act § 413[1][b][6]; Domestic Relations Law § 240[1–b][b][6]; Harrison v. Harrison, 255 A.D.2d 490, 491 [1998];Matter of Keay v. Menda, 210 A.D.2d 483, 483–484 [1994] ). Under such circumstances, the support obligation to be imposed is the greater of $25 per month or the difference between the noncustodial parent's income and the self-support reserve ( seeFamily Ct Act § 413[1][d]; Domestic Relations Law § 240[1–b][d] ).
( see Moore v. Abban, 72 A.D.3d 970, 899 N.Y.S.2d 362 [2 Dept., 2010] ).
However, the husband also testified to receiving $1,200.00 each month from his sister. Based on the facts and circumstances herein, this court shall impute income to the husband in the annual sum of $14,400.00 for the purposes of determining a final award of child support ( see generally DeSouza–Brown v. Brown, 71 A.D.3d 946, 897 N.Y.S.2d 228 [2 Dept.,2010]; Mongelli v. Mongelli, 68 A.D.3d 1070, 892 N.Y.S.2d 471[2 Dept.,2009] ). There is no evidence of the husband having paid New York City tax or FICA, therefore there no deduction of the taxes to his child support income. The wife's annual income was $253,000.00 in accordance with her 2009 federal tax return, which is the most recent tax return in evidence.
The wife's W–2 indicates that $10,290.10 was withheld for FICA and $9,990.20 for New York City local tax. This court will reduce the wife's income to $244,611.00 based upon the maintenance payments of $1,200.00 each year ($253,000.00 - $10,290.10 - $9,990.20 - $1,200.00 = $231,519.70). The combined parental income is $245,919.70 ($14,400.00 + $224,319.70 = $245,919.70).
This court recognizes that the CSSA formula enunciated in DRL 204[1–b] (b)(5) states that “(i) gross (total) income as should have been or should be reported in the most recent federal income tax return. If an individual files his/her federal income tax return as a married person filing jointly, such person shall be required to prepare a form, sworn to under penalty of law, disclosing his/her gross income individually.” The wife's most recent return in evidence is her individual tax return for 2009. The most recent returns for the husband is the parties joint return for 2008.
In accordance with CSSA, 17% of the combined parental income shall be applied to the child support. The husband's pro rata obligation is 6% and the wife's pro rata obligation is 94%
In applying the CSSA the husband's pro rata share, 6%, for child support on the total combined parental income is $2,448.00 annually; which is $204.00 a month until the wife's maintenance payments to the husband cease. However, “[t]he 2012 poverty income guideline amount for a single person as reported by the United States Department of Health and Human Services is $11,170 and the 2012 self-support reserve is $15,080” (Child Support Standards Chart, Released April 1, 2012 [prepared by New York State Office of Temporary and Disability Assistance Division of Child Support Enforcement] ). The husband's income, $14,400.00, is below the self support-reserve prior to applying the child support calculation and the calculation places the husband's income well below the self support reserve.
... where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the poverty income guidelines amount for a single person as reported by the federal department of health and human services, the basic child support obligation shall be twenty-five dollars per month, provided, however, that if the court finds that such basic child support obligation is unjust or inappropriate, which finding shall be based upon considerations of the factors set forth in paragraph (f) of this subdivision, the court shall order the non-custodial parent to pay such amount of the child support as the court finds just and appropriate. Notwithstanding the provisions of paragraph (c) of this subdivision, where the annual amount of the basic child support obligation would reduce the non-custodial parent's income below the self-support reserve but not below the poverty income guidelines amount for a single person as reported by the federal department of health and human services, the basic child support obligation shall be fifty dollars per month or the difference between the non-custodial parent's income and the self-support reserve, whichever is greater, in addition to any amounts that the court may, in its discretion, order in accordance with subparagraphs four, five, six and/or seven of paragraph (c) of this subdivision.
(Domestic Relations Law § 240[1–b][d]; seeFamily Ct. Act § 413[1][d]; see also Moore v. Abban, 72 A.D.3d 970, 899 N.Y.S.2d 362 [2 Dept.,2010] ).
In this case, the annual self-support reserve is $15,080.00 and the husband's annual income is $14,400.00. The difference between the self-support reserve and the husband's income is $680.00 ($15,080.00 - $14,400.00 = $680.00). The child support at the rate of $50.00 each month is $600.00 annually. Accordingly, consistent with the above quoted statutory scheme, the husband's child support obligation shall be $680.00 annually which is $56.66 each week retroactive from the date of first application ( seeDRL 236[B][7][a] ). Child support shall be paid on the first of each month until the child is 21 years of age or emancipated, whichever is sooner. Since, at this time, the husband's income is below the self-support reserve and obligated to pay the statutory minimum for child support a recalculation upon the termination of the maintenance obligation is not necessary.
However, the husband shall be obligated to notify the wife within 48 hours of obtaining gainful employment. Furthermore, the wife shall be permitted to bring a motion for modification within 12 months of entry of the judgement of divorce. The basis of the modification may be a request for the imputation of income considering his testimony that he can earn $60,000.00 and the fact the he has earned income in the sum of $42,000.00 and the additional time given herein for the husband's re-entry into the work force.
The court has the authority to determine which parent shall claim the dependency exemption. Case law holds that it is within the sound discretion of the court to direct that the non-custodial parent be entitled to the dependency exemption for the purposes of filing income taxes where the custodial parent has little taxable income and, thus, is unable to take full advantage of the dependency exemption for any children, especially where the non-custodial parent is contributing all, or the majority of, a child's support (see Jurgielewicz v. Jurgielewicz, 31 A.D.3d 639, 817 N.Y.S.2d 916 [2 Dept., 2006]; see also Frei v. Pearson, 244 A.D.2d 454, 664 N.Y.S.2d 349 [2 Dept., 1997] ). Here, the wife is obligated to pay the vast majority of the child's support and the husband is currently unemployed. This court finds that under the facts and circumstances herein, the wife shall be entitled to claim the dependency exemption.
Life Insurance
Pursuant to DRL 236(8)(a):
“[t]he court may ... order a party to purchase, maintain or assign a policy of insurance on the life of either spouse, and to designate either spouse or children of the marriage as irrevocable beneficiaries during a time fixed by the court. The interest of the beneficiary shall cease upon termination of such party's obligation to provide maintenance, child support or a distributive award....”
This provision empowers the court to secure future payments of maintenance and child support, as well as payments pursuant to any distributive award, by directing the payor spouse to purchase, maintain or assignment of life insurance to protect the recipient in the event the payor dies prior to the time the future obligation is satisfied ( see Macari v. Marichal, 83 A.D.3d 942, 920 N.Y.S.2d 731 [2 Dept., 2011]; see generally Moran v. Grillo, 44 A.D.3d 859, 843 N.Y.S.2d 674 [2 Dept., 2007]; Penna v. Penna, 29 A.D.3d 970, 817 N.Y.S.2d 313 [2 Dept.,2006]; Corless v. Corless, 18 A.D.3d 493, 795 N.Y.S.2d 273 [2 Dept., 2005]; Comstock v. Comstock, 1 A.D.3d 307, 766 N.Y.S.2d 220 [2 Dept., 2003] ).
Appellate case law has held that to require that a life insurance policy be reduced each year “... by the amount of child support paid in the prior year, is difficult to administer” (Fogarty v. Fogarty, 284 A.D.2d 300, 302, 725 N.Y.S.2d 673 [2 Dept.,2001] ) and that a fixed amount of life insurance for collateralization of support obligations is preferable ( see Lueker v. Lueker, 72 A.D.3d 655, 898 N.Y.S.2d 605 [2 Dept.,2010]; see also Corless v. Corless, 18 A.D.3d 493, 795 N.Y.S.2d 273 [2 Dept.,2005]; Morton v. Morton, 130 A.D.2d 558, 515 N.Y.S.2d 499[2 Dept.,1987] ). In this case, the wife testified her current life insurance policy is in the amount of $1,500,000.00. The wife shall designate the husband irrevocable beneficiary for the amount of the maintenance obligation and the child irrevocable beneficiary for the remaining balance until the and maintenance obligation ceases or the death of either of the parties. Upon the cessation of the maintenance obligation, the wife shall designate the child the irrevocable beneficiary until her child support obligation ceases or the death of either of the parties or the child. If he obtains employments, he must secure life insurance to secure his child support obligation.
Health Insurance
Pursuant to Domestic Relations Law section 255, both parties are on notice “... 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” (DRL 255).
In the event that either party maintains health insurance for the benefit of their spouse, the other party may be entitled to health insurance through a COBRA option, or otherwise may be required to secure their own health insurance. The court cannot award a party to pay the other party's unreimbursed medical expenses ( see Bains v. Bains, 308 A.D.2d 557, 764 N.Y.S.2d 721 [2 Dept.,2003] ). “Judgments of divorce which direct a parent to pay the other parent's unreimbursed health care expenses “are in the nature of open-ended obligations which this court has consistently disfavored ... Ordinary or routine unreimbursed medical expenses should be considered as included in a maintenance award, and extraordinary unreimbursed medical expenses cannot be awarded prospectively in unfixed amounts” (Gulotta v. Gulotta, 215 A.D.2d 724, 725, 627 N.Y.S.2d 428 [2 Dept.,1995]; see Zabin v. Zabin, 176 A.D.2d 262, 264, 574 N.Y.S.2d 75 [2 Dept.,1991] ).
Pursuant to Domestic Relations Law 236[B][8][a], the court has the authority “to order a party to purchase, maintain or assign a policy of insurance providing benefits for health and hospital care and related services for either spouse or children of the marriage....”. The husband seeks an order of this court requiring that the wife maintain health insurance for her benefit and for the benefit of the parties' child.
The only evidence of the parties current health insurance coverage is exhibit 22 in evidence which is a HIP billing statement dated September 1, 2010. The monthly bill is for the sum of $1,102.72. Also part of exhibit 22 is “The [redacted] Hospital COBRA Insurance Premium Statement” in the wife's name. The coverage is “GHI PPO–Health” Family and the COBRA completion date is December 31, 2009. In the event that the husband is insured by the wife's plan, he may be entitled to COBRA benefits, however, there is no testimony from either party regarding the cost of the COBRA benefits. Accordingly, this court will not render an award for health insurance to the husband valued at an unknown amount. The wife shall promptly provide the husband with all information and forms so he may apply for COBRA at his choice, if available.
Equitable Distribution
In recognizing that marriage is an economic partnership, the Domestic Relations Law mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the trial court to consider a number of statutory factors listed in Domestic Relations Law 236[B][5][d], as follows:
(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) any award of maintenance under subdivision six of this part;
(6) 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;
(7) the liquid or non-liquid character of all marital property;
(8) the probable future financial circumstances of each party;
(9) 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;
(10) the tax consequences to each party;
(11) the wasteful dissipation of assets by either spouse;
(12) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(13) any other factor which the court shall expressly find to be just and proper.
.DRL 236[B][5][d] was amended in 2009 to include factor [5] relating to loss of health insurance. This divorce action commenced in 2007, predating the change in DRL 236.
Equitable distribution presents matters of fact to be resolved by the trial court, which are vested with broad discretion in determining distributive awards ( see DeGroat v. DeGroat, 84 A.D.3d 1012, 924 N.Y.S.2d 425 [2 Dept., 2011]; see also, Saleh v. Saleh, 40 A.D.3d 617, 836 N.Y.S.2d 201 [2 Dept., 2007]; Shifer v. Shifer, 27 A.D.3d 549, 810 N.Y.S.2d 361 [2 Dept.,2006]; Sebag v. Sebag, 294 A.D.2d 560, 743 N.Y.S.2d 276 [2 Dept., 2002]; Oster v. Goldberg, 226 A.D.2d 515, 640 N.Y.S.2d 814 [2 Dept.,1996] ).
Moreover, “unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed” (Raville v. Elnomany, 76 A.D.3d 520, 521, 906 N.Y.S.2d 586 [2 Dept.,2010]; see also Alper v. Alper, 77 A.D.3d 694, 909 N.Y.S.2d 131 [2 Dept.,2010]; Johnson v. Johnson, 261 A.D.2d 439, 440, 690 N.Y.S.2d 92 [2 Dept.,1999], quoting Oster v. Goldberg, 226 A.D.2d 515, 640 N.Y.S.2d 814 [2 Dept.,1996], appeal denied88 N.Y.2d 811 [1996];Jones–Betrand v. Bertrand, 59 A.D.3d 391, 874 N.Y.S.2d 152 [2 Dept.,2009]; Grasso v. Grasso, 47 A.D.3d 762, 764, 851 N.Y.S.2d 213 [2 Dept.,2008] ).
Marital v. Separate Property
Domestic Relations Law section 236(B) [1][c] defines marital property as “all property acquired by either or both spouses during the marriage and before ... the commencement of a matrimonial action, regardless of the form in which title is held” (Marcellus–Montrose v. Montrose, 922 N.Y.S.2d 506, 507, 922 N.Y.S.2d 506 [2 Dept., 2011]; see also Schwartz v. Schwartz, 67 A.D.3d 989, 890 N.Y.S.2d 71 [2 Dept.,2009].
Separate property, on the other hand, is defined as “property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse” (Domestic Relations Law 236[B][1][d] [1] ).
The law favors the inclusion of property within the marital estate ( compareDomestic Relations Law 236[B][1][c] and [d]; see Burns v. Burns, 84 N.Y.2d 369, 374, 618 N.Y.S.2d 761 [1994];see also Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699 [1984] ); therefore, the term “marital property” is to be broadly construed, while the phrase “separate property” is to be narrowly construed (Price v. Price, 69 N.Y.2d 8, 15, 503 N.E.2d 684 [1986];see also Saasto v. Saasto, 211 A.D.2d 708, 621 N.Y.S.2d 660 [2 Dept.,1995], quoting Price v. Price, 69 N.Y.2d 8, 511 N.Y.S.2d 219 [1986];Feldman v. Feldman, 194 A.D.2d 207, 605 N.Y.S.2d 777 [2 Dept.,1993] ). Accordingly, “the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property' “ (Spera v. Spera, 71 A.D.3d 661, 664, 898 N.Y.S.2d 548 [2 Dept.,2010], quoting Massimi v. Massimi, 35 A.D.3d 400, 412, 825 N.Y.S.2d 262 [2 Dept.,2006] ) and must trace the source of the funds utilized to acquire the property with sufficient particularity to rebut the presumption that it is marital in nature ( see Massimi v. Massimi, 35 A.D.3d 400, 825 N.Y.S.2d 262 [2 Dept.,2006]; see also Spera v. Spera, 71 A.D.3d 661, 898 N.Y.S.2d 548 [2 Dept.,2010] ). Furthermore, separate property can lose its separate property distinction and become classified as marital property if a party commingles it with marital funds or assets ( see Hartog v. Hartog, 85 N.Y.2d 36, 623 N.Y.S.2d 537 [1995];see also Lynch v. King, 284 A.D.2d 309, 725 N.Y.S.2d 391 [2 Dept., 2001] ).
Enhanced Earning Capacity
The enhanced earning capacity due to acquisition of a professional license during the marriage is a marital asset subject to equitable distribution ( see Grunfeld v. Grunfeld, 94 N.Y.2d 696, 709 N.Y.S.2d 486 [2000];McSparron v. McSparron, 87 N.Y.2d 275, 639 N.Y.S.2d 265 [1995];O'Brien, O'Brien, 66 N.Y.2d 576, 498 N.Y.S.2d 743 [1985];Domestic Relations Law 236[B][1][c] and 236[B][5][c] ). “The value of a degree is the enhanced earning capacity it affords the holder” (O'Brien v. O'Brien, 66 N.Y.2d 576, 588, 498 N.Y.S.2d 743, 489 N.E.2d 712)” Huffman v. Huffman, 84 A.D.3d 875, 923 N.Y.S.2d 583 [2 Dept.,2011] ). Enhanced earning capacity is the present value, after tax, of the incremental income an individual earns over his or her expected work life, which can be attributable to additional education or training achieved during the marriage. In considering professional degrees and licenses, the incremental income is considered to be the difference between the expected earnings without the additional degree and license [base-line earnings] and anticipated income with the degree and license [top-line earnings].
“[I]t is ... incumbent upon the nontitled party seeking a distributive share of such assets to demonstrate that they made a substantial contribution to the titled party's acquisition of that marital asset' and [w]here only modest contributions are made by the nontitled spouse toward the other spouse's attainment of a degree or professional license, and the attainment is more directly the result of the titled spouse's own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity' “ (Higgins v. Higgins, 50 A.D.3d 852, 853, 857 N.Y.S.2d 171 [2 Dept., 2008], quoting Brough v. Brough, 285 A.D.2d 913, 914–915, 727 N.Y.S.2d 555 [3 Dept., 2001] and Farrell v. Cleary–Farrell, 306 A.D.2d 597, 599–600, 761 N.Y.S.2d 357 [3 Dept., 2003]; see Vora v. Vora, 268 A.D.2d 470, 471, 702 N.Y.S.2d 343[2 Dept., 2000] see also Kriftcher v. Kriftcher, 59 A.D.3d 392, 874 N.Y.S.2d 153 [2 Dept., 2009]; Kuznetsov v. Kuznetsova, 79 A.D.3d 974, 913 N.Y.S.2d 325 [2 Dept., 2010] ).
The court appointed appraiser, Joel A. Rakower, valued the wife's enhanced earning capacity on June 2, 2009 to be $361,000.00 as of January 1, 2008, and is uncontroverted by the parties ( see Bricker v. Bricker, 69 A.D.3d 546, 893 N.Y.S.2d 128 [2 Dept., 2010]; see also Levine v. Levine, 37 A.D.3d 550, 830 N.Y.S.2d 252 [2 Dept., 2007] ). The wife did not complete her fellowship in gastroenterology until June 2008 which is seven (7) months after the commencement of this action. Furthermore the appraisal order prepared by the parties states the wife's “internal medicine certification” is the subject of the appraisal. Rakower's report itemized the various educational attainments by the wife and her employment history considered in preparation of their analysis. Questionnaires were provided to counsel for their clients to complete; the wife responded and the husband did not respond.
Rakower computed the present value of the wife's enhanced earning capacity based upon her actual income as a medical doctor licensed with an internship and residency and chief resident in internal medicine. The fellowship in gastroenterology, was completed after the commencement of this action. The wife's top line earnings as an internist are $166,719.00 and utilized data obtained from the Medical Group Management Association. The wife's baseline earnings are $34,714.00 considered the wife's sex, age and education. The total enhanced earnings based upon the two earning streams, top line and base line earnings, is $1,061,228.00. Since the wife's education was completed prior to the marriage, Rakower “... credited her for that portion of the total education which occurred outside of the period of the couple's marriage as compared to that which occurred during the marriage” ( see Exhibit 29 at 9). The coverture fraction of 34% was applied in this case. Accordingly, the present value of the wife's enhanced earning capacity is $361,000.00.
After hearing the testimony of the parties, this court determines that the husband did not make a substantial contribution toward the wife completing her license. He was not a homemaker, his contribution to raising the parties child was minimal, taking the child for walks and watching television with the child, he did not perform many household duties and he cooked for himself and did his own laundry but did not do so for the wife. Nor did the husband support the family financially. The wife worked two jobs at times to enable the parties to pay their rent. Although the wife concedes that both parties raised the child, the husband provided minimal care for the parties' child, he took the child for walks and watched television with the child. The husband provided no economic support, no maintenance to the martial home and did not sacrifice his education while the wife pursued her medical license. On the contrary, the wife testified that she repeatedly request that the husband make use of his education and seek employment, but to no avail. He appeared to be more of an obstructionist and drain to the marital relationship as opposed to being an asset.
In consideration of the husband's very limited contribution and efforts towards the wife attaining her license the husband is awarded 5% of the enhanced earning value which is $18,050.00 as and for his share in the wife's enhance earning capacity ($361,000.00 x .05 = $18,050.00). The Appellate Division, Second Department in Guha v. Guha (61 A.D.3d 634, 877 N.Y.S.2d 151 [2 Dept., 2009] ) awarded 5% of an enhanced earning capacity. The Court held that
[h]ere, the evidence at trial established that the defendant made minimal financial contributions to the marriage ( see Evans v. Evans, 57 A.D.3d at 719, 870 N.Y.S.2d 394;Arrigo v. Arrigo, 38 A.D.3d 807 [2007];Sade v. Sade, 251 A.D.2d 646, 647 [1998] ). The defendant, moreover, failed to satisfy his burden of demonstrating that he made substantial contributions to the plaintiff's attainment of her license to practice medicine in the United States ( see Higgins v. Higgins, 50 A.D.3d at 853, 857 N.Y.S.2d 171;Brough v. Brough, 285 A.D.2d 913, 914 [2001];Sade v. Sade, 251 A.D.2d at 647, 675 N.Y.S.2d 119). The record reflects that the plaintiff completed medical school in India prior to meeting the defendant and that she passed the United States Medical Licensing Examination based on her own ability, tenacity, perseverance, and hard work ( see Gandhi v. Gandhi, 283 A.D.2d 782, 784–785 [2001] ). Thus, the Supreme Court, after properly considering the relevant statutory factors ( seeDomestic Relations Law § 236[B][5]; Arrigo v. Arrigo, 38 A.D.3d 807 [2007];Falgoust v. Falgoust, 15 A.D.3d at 614, 790 N.Y.S.2d 532), providently exercised its discretion in distributing the marital estate.
“[W]here only modest contributions are made by the nontitled spouse toward the other spouse's attainment of a degree or professional license, and the attainment is more directly the result of the titled spouse's own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity' “ (Higgins v. Higgins, 50 A.D.3d at 853, 857 N.Y.S.2d 171;see Farrell v. Cleary–Farrell, 306 A.D.2d 597, 599–600, 761 N.Y.S.2d 357).” (Schwartz v. Schwartz, 67 A.D.3d 989, 890 N.Y.S.2d 71 [2 Dept., 2009]; ( seeDomestic Relations Law 236[B][5] [d]; cf Jayaram v. Jayaram, 62 A.D.3d 951, 880 N.Y.S.2d 305 [2 Dept., 2009] [“The court also properly determined that the wife was entitled to a 35% share of the husband's enhanced earning capacity. Although the wife did not make direct financial contributions to the husband's attainment of his MBA degree and NASD licenses, she made substantial indirect contributions by supporting the husband's educational endeavors, working full-time and contributing her earnings to the family, being the primary caretaker of the couple's children, cooking family meals, and participating in housekeeping responsibilities”]; cf Huffman v. Huffman, 84 A.D.3d 875, 923 N.Y.S.2d 583, supra [“The Supreme Court also properly determined that the plaintiff was entitled to a 30% share of the defendant's enhanced earning capacity. Although the plaintiff did not make direct financial contributions to the husband's attainment of his MBA degree, she made substantial indirect contributions by, inter alia, supporting the husband's educational endeavors, working until August 2000 and contributing her earnings to the family, being the primary caretaker of the couple's children, cooking family meals, and participating in housekeeping responsibilities ( see Holterman v. Holterman, 3 N.Y.3d 1, 8–9, 781 N.Y.S.2d 458, 814 N.E.2d 765;Jayaram v. Jayaram, 62 A.D.3d at 953, 880 N.Y.S.2d 305)”]. The extent of the husband's testimony as to his efforts in assisting the wife during her training by making a hotel reservation for the evening before her boards is simply not persuasive and does not warrant a greater percentage for equitable distribution of the wife's enhanced earning capacity.
The husbands' request for equitable distribution of the wife's enhanced earning capacity related to her gastroenterology fellowship is denied. The husband failed to proffer any evidence as to the value of this certificate ( see Rosenberg v. Rosenberg, 155 A.D.2d 428, 547 N.Y.S.2d 90 [2 Dept., 1989] [“We need not reach the issue of whether the wife's Master's degree in social work and her accompanying State certification constituted marital property, since there was no credible evidence adduced as to the value of the degree and/or certification”] ). Furthermore, this certificate was acquired after the commencement of this action.
Equitable Distribution of the Bank Accounts
It is undisputed that, as of the date of commencement, that the Chase Bank NA checking account with the account number ending in 8865 with a balance in the amount of $3,646.00 at the commencement of this action; (2) Chase Bank savings account with the account number ending in 8801, with a balance in the amount of $20.00 at the commencement of this action; and (3) NYM Federal Credit Union account with the account number ending in 8523, with a balance in the amount of $1,172.85 The total monies in the bank accounts at the time of commencement was $4,838.85 ($3,646.00 + $20.00+$1,172.85 = $4,838.85). Neither party offered any testimony or evidence regarding any alleged separate property element with respect to any of these bank accounts. As such, the total sum of marital monies from marital bank accounts subject to equitable distribution is $4,838.85; therefore, the husband is entitled to a credit in equitable distribution at the time of commencement in the sum of $2,419.43, representing fifty (50%) percent of the $2,419.43 from marital bank accounts ($4,838.85 / 2 = $2,419.43).
Equitable Distribution of the Automobile
The wife is the titled owner of a 2004 Toyota Rav4, which was purchased during the time of the marriage. She is currently in possession of the vehicle. The husband did not request the use of this vehicle. The wife submitted into evidence, unopposed, the Kelly Blue Book value of the this vehicle in fair condition, which came to $7,000.00. The husband also did not request the vehicle or request its value be distributed between the two parties. Since this vehicle is an asset acquired during the marriage it is subject to equitable distribution. The wife is the titled owner and the sole operator of the vehicle. Therefore, this court finds that the wife shall retain the vehicle and the husband shall be entitled to a credit for fifty (50%) percent of the value of the vehicle, which is $3,500.00 in accordance with the unopposed valuation submitted into evidence.
Equitable Distribution of the Marital Debt
The wife testified that since the commencement of this action she has provided the husband with the sum of $2,750.00, however, the wife failed to substantiate this claim with proof of payment. Further, she testified and the husband does not dispute that he took $4,000.00 from her credit card as a cash advance in 2007.
The wife also testified that she should be credited fifty (50%) percent of all marital debt against equitable distribution. Statement for the numerous credit cards were moved into evidence, without objection. The Macy credit card and the Macy's Chase Visa credit card both had a zero balance at the time of commencement of this action. Each of the four (4) Chase Visa cards, the Chase Overdraft and the Capital One Mastercard were opened post commencement and, therefore, not subject to equitable distribution. The Chase Mastercard had a balance of $818.65 at the commencement of this action. The Bank of America/FIA Credit Card Services had a balance of $9,960.58 at the time of the commencement of this action. This court notes that this balance includes the cash advance that the husbands took in the amount of $4,000.00 and therefore shall not provide a credit to the wife for the cash advance and also equitable distribute the debt which includes the cash advance. To do so would constitute a double counting of the debt. The total marital debt at the time of commencement of this action was $10,779.23 ($818.65 + $9,960.58 = $10,779.23).
In Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 421, 881 N.Y.S.2d 369 [2009], the Court of Appeals held that:
As a general rule, where the payments are made before either pary is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets.... The parties' choice of how to spend funds during the course of the marriage should ordinarily be respected. Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end ( see also Johnsons v. Chapin, 12 N.Y.3d 461, 909 N.E.2d 66 [2009] ).
The $4,000.00 cash advance taken by the husband was a withdrawal made at or near the time of the commencement of this action. The husband shall be responsible for the $4,000.00 cash advance he took from the wife's credit card, therefore the wife shall receive a credit for $4,000.00 in equitable distribution and the wife shall be responsible for the balance of this debt.
Counsel Fees
The New York State Domestic Relations Law section 237(a) states, in part that
a) In any action or proceeding brought ... for a divorce, .... may direct the person or persons maintaining the action, to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. Such direction must be made in the final judgment in such action or proceeding,....
(DRL § 237 [Effective to October 11, 2010] ).
.DRL 237 was amended, and the historical and statutory notes state that “[t]his act shall take effect on the sixtieth day [Oct. 12, 2010] after it shall have become a law and shall apply to actions and proceedings commenced on or after such effective date.” Accordingly, this court cites the statutory scheme in effect at the time this action was commenced in 2007.
The Court of Appeals has held that “[p]ursuant to Domestic Relations Law [DRL] § 237(a), a court in a divorce action may award counsel fees to a spouse to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties.' We have held that when exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions' “ (Johnson v. Chapin, 12 N.Y.3d 461, 909 N.E.2d 66 [2009], quoting DeCabrera v. Cabrera–Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168 [1987];see also Perry v. Perry, 88 A.D.3d 861, 931 N.Y.S.2d 516 [2 Dept.,2011], quoting DeCabrera v. Cabrera–Rosete, id. at 881, 931 N.Y.S.2d 516;Manning v. Manning, 82 A.D.3d 1057, 920 N.Y.S.2d 126 [2 Dept., 2011]; Levy v. Levy, 4 A.D.3d 398, 771 N.Y.S.2d 386, [2 Dept.,2004], quoting DRL 237[a], [d] ). “In a matrimonial action, an award of an attorney's fee should be based, inter alia, on the relative financial circumstances of the parties and the relative merit of their positions' (Ciociano v. Ciociano, 54 A.D.3d 797, 797, 863 N.Y.S.2d 766; see Domestic Relations Law § 237[a] ). An award of interim counsel fees ensures that the nonmonied spouse will be able to litigate the action, and do so on an equal footing with the monied spouse' (Avello v. Avello, 72 A.D.3d 850, 851, 899 N.Y.S.2d 337 [internal quotation marks omitted] ). Whether to award an attorney's fee is in the discretion of the trial court ( see Prichep v. Prichep, 52 A.D.3d 61, 66, 858 N.Y.S.2d 667).” (Finnan v. Finnan, 943 N.Y.S.2d 559, 2012 WL 1521807 [2 Dept.,2012] [“Here the plaintiff failed to demonstrate that she had incurred counsel fees in the amount requested. Thus, the Supreme Court did not improvidently exercise its discretion by granting that branch of the plaintiff's motion which was for an award of an attorney's fee only to the extent of awarding her the sum of $5,000 ( id.).”] ).
The purpose of a counsel fee award in matrimonial proceedings pursuant to DRL 237 is to ensure a just resolution of the issues by creating a more level playing field with respect to the parties' respective abilities to pay counsel, to make sure that marital litigation is shaped not by the power of the bankroll but by the power of the evidence' “ Silverman v. Silverman, 304 A.D.2d 41, 48, 756 N.Y.S.2d 14 [1 Dept.,2003], quoting Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, DRL C237:1, at 6, quoting O'Shea v. O'Shea, 93 N.Y.2d 187, 689 N.Y.S.2d 8 [1999];see also DiBlasi v. DiBlasi, 48 A.D.3d 403, 852 N.Y.S.2d 195 [2 Dept.,2008] ).
It is well established that “[t]he evaluation of what constitutes reasonable counsel fees is a matter within the sound discretion of the trial court” because “[t]he trial court is in the best position to evaluate the factors integral to determining counsel fees' “ (Brantly v. Brantly, 89 A.D.3d 881, 933 N.Y.S.2d 300 [2 Dept., 2011], quoting Lodovico v. Lodovico, 51 A.D.3d 731, 732, 858 N.Y.S.2d 706 [2 Dept., 2008]; see also, Tarone v. Tarone, 59 A.D.3d 434, 874 N.Y.S.2d 148 [2 Dept., 2009] ).
In this case, the husband requests, by way of summation, a counsel fee award for the sum of $10,000.00 and the wife request a counsel fee award in the sum of $25,000.00. The wife's request is premised on the billing statements entered into evidence which detail the work completed by counsel. The husband failed to testify or to provide billing statements of the counsel fees he incurred.
This court has considered the parties' respective incomes, including inputted income, the nature and extent of the services rendered, the time spent by counsel and the necessity for the services, the nature of the issues involved, the financial circumstances of the parties, and husband's obstructionist tactics. Clearly there is a vast disparity in income and in earning potential. This court has considered the fact that the wife was the sole wage earner during the marriage and, as such, has a demonstrably vastly greater income earning potential than it is reasonable to anticipate that the husband will have in the future. This court is cognizant of the fact that sizable sums of money were incurred by both sides in this proceeding. This court notes that during the course of the litigation this court repeatedly warned the parties of its concern that the counsel fees they were expending could exceed the value of the marital estate that would remain to distribute upon the completion of the litigation. The husband did not heed these warnings. He was often non-responsive to even the simplest questions asked of him by his own counsel and the instructions of this court, let alone opposing counsel. During both the custody and financial trials, the husband attempted to conduct this proceeding according to his own agenda.
“Matrimonial litigation in New York is expensive. It has been repeatedly recognized that in a fiercely contested case, the costs of the litigation can consume the marital estate of even an affluent couple” (Charpie v. Charpie, 271 A.D.2d 169, 170–171, 710 N.Y.S.2d 363 [2 Dept.,2000]; see generally Prichep v. Prichep, 52 A.D.3d 61, 858 N.Y.S.2d 667 [2 Dept.,2008]. It would be inappropriate for this court to award counsel fees to the wife. Obstructionist tactics is one of the many factors for this court to consider when rendering an award for counsel fees. The other factors cannot simply be ignored. The wife is clearly the monied spouse. Although it is unclear to this court why the husband has continued to not work for years after the commencement of this matrimonial litigation, the simple fact is that the only monies that he has are imputed to him based upon regular gifts from his sister. A counsel fee award to the wife would be inappropriate and inapposite with the intent of the statute.
The husbands request for counsel fees is also denied. There is a failure of proof for which his request for counsel fees should be premised upon. The husband did not testify at trial regarding how much he incurred in counsel fees and he failed to submit at trial any written documentation in the form of either receipts or billing statements in support of his request for counsel fees in his summation. The pre-marked exhibit list, exhibit 37 states “Defendant/Husband's bills for the period of through from George M. Gilmer, Esq. And proof of payment”. This language is crossed and initialed by both counsel. The record reflects that theses documents were not provided and the husband's counsel agreed to strike it “for now”. Thereafter the wife's 2009 tax return was marked exhibit 37. Without such testimony and documentation, this court cannot award him attorney fees due to a failure of proof ( see Weinschneider v. Weinschneider, 50 A.D.3d 1128, 857 N.Y.S.2d 613 [2 Dept., 2008] [“The defendant was not entitled to an award of an attorney's fee as she failed to submit adequate documentation of fees paid in connection with an earlier cross motion”]; Gahagan v. Gahagan, 51 A.D.3d 863, 859 N.Y.S.2d 218 [2 Dept., 2008] [”[A]n attorney's failure to provide written, itemized bills at least every 60 days pursuant to 22 NYCRR 1400.2 will also preclude collection of a fee. The failure to abide by these rules, promulgated to address abuses in the practice of matrimonial law and to protect the public, will result in preclusion from recovering such legal fees.] ).
Domestic Relations Law section 237(d) defines expenses that can be awarded. It “... shall include, but shall not be limited to, accountant fees, appraisal fees, actuarial fees, investigative fees and other fees and expenses that the court may determine to be necessary to enable a spouse to carry on or defend an action or proceeding under this section. The wife's request for expert expenses is similarly denied. The wife is the monied spouse. The expenses expended are not extraordinary expenses. The wife's position that the husband's refusal to settle this matter and then to detail the preparation of stipulation drafted in this matter is not a basis to award expenses. A party has a right to their day in court. Failure to settle is not a basis to awarded expenses in a matrimonial litigation. The court will not punish the husband for not settling the matter ( see Comstock v. Comstock, 1 A.D.3d 307, 766 N.Y.S.2d 220 [2 Dept., 2003] [“... an award of an attorney's fee is designed to redress the economic disparity between spouses. It is not intended to address a party's decision to proceed to trial rather than agree to a settlement ( see O'Shea v. O'Shea, 93 N.Y.2d 187, 689 N.Y.S.2d 8, 711 N.E.2d 193 (1999)”] ).
The Husband's Refusal to Give a Religious Divorce
Domestic Relations Law section 236[B][5][h] states that “[i]n any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of barrier to remarriage as defined under subdivision six of section two hundred fifty-three of this article, on the factors enumerated in paragraph d of this subdivision”. This section was added to the equitable distribution statute in 1992 to authorize a judge in a matrimonial action to consider the effects of a barrier to remarriage of one of the spouses when determining equitable distribution. In the sponsoring Member's Memo, Assemblyman Silver stressed that a judge should be able to consider “whether one party maintains a barrier to remarriage' in arriving at said decision.” [emphasis added] (Sponsor's Mem, Bill Jacket, L 1992, ch 415).
This section of the law codified the then seminal Supreme Court decision which characterized the husband's refusal to give a Get as another “factor” under Domestic Relations Law 236[B][5][d][13] to take into consideration when determining the distribution of assets between parties ( see Schwartz v. Schwartz, 153 Misc.2d 789, 583 N.Y.S.2d 716 [Rigler, J., N.Y.Sup. Mar 11, 1992] [No. 14556/89, 2734] ). In 1997 the Appellate Division affirmed the decision and held that the former husband forfeited any right to distributive awards due to his initial refusal to give his wife a Get ( see Schwartz v. Schwartz, 235 A.D.2d 468, 652 N.Y.S.2d 616 [2 Dept., 1997] ). In Pinto v. Pinto (260 A.D.2d 622, 688 N.Y.S.2d 701 [2 Dept., 1999] ), the Appellate Division held that granting the ex-wife one hundred (100%) percent of property listed on the parties' statement of net worth in the event the ex-husband did not deliver a Get within a specified time period was not an improvident exercise of discretion. The court referred to Schwartz when considering the effect on equitable distribution of a husband's refusal to deliver a Get ( see Pinto v. Pinto, 260 A.D.2d at 622, 688 N.Y.S.2d 701).
A barrier to remarriage includes any religious or conscientious restraint or inhibition that is imposed on a party, that the party is aware of, to a marriage under principles of a clergyman or minister by reason of the other party's commission or withholding of any voluntary act.
The unequal allocation of power between spouses to terminate a religious marriage, thereby removing barriers to remarriage has been acknowledged by prior judicial opinions. The misuse of this power by the husband in the form of withholding a religious divorce can be taken into consideration when determining equitable distribution. Subdivision [h] of Domestic Relations Law 236[B][5] was enacted after Schwartz (153 Misc.2d 789, 583 N.Y.S.2d 716,supra ) to codify and to prevent one spouse from using the requirement of voluntarily removing barriers to remarriage as financial leverage against the other spouse and conceding them to secure an agreement that barriers will be removed.
.DRL 253[6] defines barrier to remarriage:
As used in the sworn statements prescribed by this section “barrier to remarriage” includes, without limitation, any religious or conscientious restraint or inhibition, of which the party required to make the verified statement is aware, that is imposed on a party to a marriage, under the principles held by the clergyman or minister who has solemnized the marriage, by reason of the other party's commission or withholding of any voluntary act. Nothing in this section shall be construed to require any party to consult with any clergyman or minister to determine whether there exists any such religious or conscientious restraint or inhibition. It shall not be deemed a “barrier to remarriage” within the meaning of this section if the restraint or inhibition cannot be removed by the party's voluntary act. Nor shall it be deemed a “barrier to remarriage” if the party must incur expenses in connection with removal of the restraint or inhibition and the other party refuses to provide reasonable reimbursement for such expenses. “All steps solely within his or her power” shall not be construed to include application to a marriage tribunal or other similar organization or agency of a religious denomination which has authority to annul or dissolve a marriage under the rules of such denomination.
In the case at bar, the wife testified that she is a Muslim and if she does not obtain a religious divorce she will be unable to remarry. Although she will be divorced in accordance with secular law, she will not be considered a single woman within her religious community. She further testified that in the event she were to travel to Iran that her husband, or then ex-husband, could withhold his permission for her to leave Iran. The court credits the wife's testimony that she made arrangements for the parties to meet at a local mosque to address the religious divorce but that the husband simply did not respond. The husband's only testimony regarding the religious divorce was that he needed to speak to his attorney. By was of summation he states that his failure to provide a religious divorce should have no impact on the issues of maintenance and equitable distribution. This is simply not sufficient and is inconsistent with the New York State law. The husband proceeds to have his own agenda and does not address this question that is asked of him in open court.
The credible testimony by the wife leads this court to find that the husband's refusal to give the wife a religious divorce, thereby removing barriers to her remarriage, is a basis to exercise its discretion under Domestic Relations Law 236[B][5][h] to disproportionately distribute marital assets. The husband shall have 45 days from the date of this decision to take any necessary steps to remove any barriers to the wife's remarriage. In the event that the husband fails to comply, he shall forfeit the maintenance and equitable distribution award made herein and repay to the wife the $4,000.00 cash advance heretofore discussed.
Mehrieh
Pursuant to Domestic Relations Law section 236[B][3],
An agreement by the parties, made before or during the marriage, shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.
( see Matisoff v. Dobi, 90 N.Y.2d 127, 659 N.Y.S.2d 209 [1997] [“At issue here is the validity of a written postnuptial agreement that was signed by the parties but not acknowledged. Because neither the statute's unambiguous language nor its history suggests that the Legislature intended the acknowledgment prerequisite to be dispensable, we conclude that the unacknowledged agreement here is unenforceable”]; see also Kessler v. Kessler, 33 A.D.3d 42, 818 N.Y.S.2d 571 [2 Dept., 2006] ).
Here, the mehrieh is an agreement between the parties that was made prior to the parties' marriage. Also, it is in writing and subscribed by both parties, but it is not acknowledged or proven in the manner required to entitle a deed to be recorded. Accordingly, due to its failure to comply with all three statutory requirements of Domestic Relation Law section 236[B][3], this court lacks the necessary jurisdiction to enforce its terms as part of this matrimonial action ( see Matisoff v. Dobi, supra at 134, 659 N.Y.S.2d 209, 681 N.E.2d 376). However, although this court cannot enforce the mehrieh as a valid and enforceable matrimonial agreement, the court notes that the wife may bring a separate plenary action in civil proceeding, seeking enforcement of the mehrieh as an independent contract ( see Singer v. Singer, 261 A.D.2d 531, 690 N.Y.S.2d 621 [2 Dept., 1999] [“Contrary to the appellant's contention, the separation agreement was enforceable as an independent contract in this plenary action commenced by the plaintiff ( see,General Obligations Law §§ 3–309, 3–313[2]; Rainbow v. Swisher, 72 N.Y.2d 106, 109, 531 N.Y.S.2d 775, 527 N.E.2d 258;Kleila v. Kleila, 50 N.Y.2d 277, 283, 428 N.Y.S.2d 896, 406 N.E.2d 753). Although the parties' agreement would not be enforceable as an “opting out” agreement in a matrimonial action because it was not acknowledged ( see,Domestic Relations Law § 236[B][3]; Matisoff v. Dobi, 90 N.Y.2d 127, 659 N.Y.S.2d 209, 681 N.E.2d 376), the action at bar was commenced to recover damages, inter alia, for breach of contract. Since the appellant's companion action for a divorce was dismissed prior to the trial of the action at bar, we find no impediment to enforcement in a contract action of the provisions of the parties' agreement insofar as it concerns their personal property and certain monetary obligations (cf., Detmer v. Detmer, 248 A.D.2d 582, 669 N.Y.S.2d 911;Youngkrans v. Youngkrans, 245 A.D.2d 1142, 667 N.Y.S.2d 540).”] ).
Conclusion
Equitable distribution shall be effectuated and the payment of maintenance is directed in this trial decision. The Family Court shall have concurrent jurisdiction with regard to custody, visitation, maintenance and child support. The wife shall have the right to use her maiden or prior surname if she so chooses.
This court reiterates that pursuant to Domestic Relations Law section 255,
both parties are on notice “... 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.” (Domestic Relation Law § 255). A copy of this decision is being mailed to both parties.
Either party may settle separate findings of fact and conclusions of law and judgment of divorce, together with the minutes of the decision after trial on grounds, custody and visitation and a copy of this decision within 60 days.