Opinion
200580/05.
Decided May 27, 2010.
Raymond Kerno, Esq., Mineola, NY, Attorney for the plaintiff.
Beverly Silver, Esq., Jericho, NY, Attorney for the defendant.
Jeffrey Halbreich, Esq., Baldwin, NY, Attorney for the Children.
This Court conducted a non-jury trial with respect to the above entitled matrimonial action on March 17, 18, 19, 22, April 8, 9, 12, 13, 2010. Plaintiff called one witness to testify at the trial: plaintiff N.H. Defendant called four witnesses to testify at the trial: defendant S.H., R.L., A.K., and R.W. At the request of the Attorney for the Children, this Court conducted in-camera interviews of the two (2) infant children.
Plaintiff and defendant were married on July 17, 1997. The parties have two (2) infant children: J.H., born on December 19, 2002, and M.H., born on December 15, 2004. The above entitled matrimonial action was filed by plaintiff on June 30, 2005.
SUMMARY OF THE TRIAL TESTIMONY
Both plaintiff and defendant blame each other for their failed marriage. Both plaintiff and defendant each allege that the other was verbally, emotionally, and physically abusive during the course of the marriage. During the pendency of this matter, based on criminal charges pending against both plaintiff and defendant, the physical custody of the infant children was changed by the Court twice. The defendant has had temporary physical custody of the infant children since April 15, 2008. The following summarizes the trial testimony:
1. PLAINTIFF'S CASE:
A. TESTIMONY OF PLAINTIFF (HUSBAND)-N.H.
Plaintiff testified that he has a Bachelor's degree in Accounting from Yeshiva University. Plaintiff is currently unemployed and has not worked for approximately six (6) years. Plaintiff testified that from 1997 to 2000, he worked in the garment industry, and as a cantor in the Temple. Plaintiff testified that thereafter, he worked periodically in the financial services field. The only financial information which plaintiff provided was that he made approximately Twenty-Five Thousand ($25,000.00) Dollars in 2005. No further details regarding plaintiff's employment or earnings were provided to this Court. No explanation was offered for plaintiff's six (6) years of unemployment.
Plaintiff described his marriage to defendant as "challenging" and "volatile". Plaintiff testified that, during the course of their marriage, he was frequently harassed by defendant. He claimed that he was verbally, emotionally, and physically abused by defendant. Plaintiff testified that defendant frequently told him that he was not affectionate, not loving, called him a bum, told him that he did not care about her, and told him that he was not responsible. Plaintiff described a number of incidents which occurred between 1999 and 2005, wherein defendant hit him. Plaintiff testified that in December of 2004, the house in which they resided was destroyed by a fire and all of their belongings were destroyed. Plaintiff testified that the problems in the marriage increased after the fire because defendant had a difficult time dealing with the aftermath of the fire, and with the raising of their two infant children. Plaintiff contends that from January through March of 2005, defendant refused to go to marriage counseling and threatened to kill herself and the infant children.
Plaintiff testified that during February of 2005, based on defendant's behavior, he brought her to Franklin General Hospital. Thereafter, on March 22, 2005, plaintiff again brought defendant to the Franklin General Hospital's psychiatric ward where she remained for seventeen (17) days.
Plaintiff testified that he filed divorce papers on June 30, 2005. Thereafter, plaintiff contends that defendant's behavior escalated and she continued to verbally, emotionally, and physically abuse him. Plaintiff claimed that on July 17, 2005, because defendant was again exhibiting what he described as disturbing behavior, he took her to Franklin General Hospital where she spent a week. Plaintiff testified that when defendant came home from the hospital she continued the same physically abusive behavior toward him. Plaintiff testified that on two occasions, first in July and then in August of 2005, defendant slapped him on the head. Plaintiff called the Police after each incident and defendant was arrested each time.
Plaintiff testified that on September 16, 2005, defendant was admitted into the psychiatric unit of Zucker-Hillside Hospital, where she remained for two months. Plaintiff testified that after defendant was released, she attended counseling and was prescribed medication. Plaintiff testified that he attempted to help defendant obtain a part time job. Plaintiff testified that in March of 2006, defendant refused to take her prescribed medication and became verbally, emotionally, and physically abusive toward him. Plaintiff claims that in both March and May of 2006, defendant attacked him. Plaintiff called the Police after each incident and defendant was arrested each time. Plaintiff was issued a Stay Away Order of Protection after the incident on May 29, 2006, and he was granted temporary custody of the infant children. Defendant was granted supervised visitation. From 2006 through 2009, numerous Family Offense Petitions were filed by both plaintiff and defendant in Nassau County Family Court.
From 2006 throughout 2009, plaintiff had defendant arrested on multiple occasions for various allegations including: contacting him, harassing him, and for arriving late to or from visitation. Plaintiff testified in detail about various problems with the supervised visitation including that defendant arrived late, did not cooperate with scheduling, yelled at him, improperly clothed the infant children, improperly fed the infant children, and harassed the supervisors. Based on the problems during this period of time, the supervised visitation changed from one agency to another and then from one private supervisor to another. Plaintiff claimed that after the children visited with defendant they would act differently; i.e., curse, spit, and have unspecified stomach ailments.
Plaintiff testified that after being served with a Writ of Habeas Corpus to produce the infant children in Nassau County Family Court on March 15 or 16 of 2008, he left New York State with the infant children because he feared that he was going to be arrested. Plaintiff testified that he and the children lived in motels in various states. Plaintiff testified that at one motel where they were staying, his son fell off the bed and fractured his arm. Plaintiff was unable to give precise details as to how the injury occurred. Plaintiff testified that on April 15, 2008, he was arrested in Arkansas and extradited back to New York to face criminal charges for leaving New York State with the infant children. After plaintiff was arrested in Arkansas, custody of the children was transferred to defendant, and plaintiff was granted supervised visitation. Plaintiff testified that from 2008 to through 2010, he rarely saw his children because defendant would not comply with the visitation Orders. On cross-examination, plaintiff admitted that when he left New York with the infant children, he told Rabbis, and others that he met, that his wife had died.
2. DEFENDANT'S CASE:
A. TESTIMONY OF DEFENDANT (WIFE)-S.H.
Defendant testified that she has a Bachelor's degree in Psychology from Yeshiva University. Defendant is currently unemployed and has not worked for the last three years. She testified that from 1997 to 1999, she worked in Medicaid sales. From 1999 to 2001, defendant worked for Yellow Book, and from 2005 to 2007, she worked in various office positions. Defendant stated that in 2007, she earned approximately Six Hundred ( $600.00) Dollars per week. No further details regarding defendant's employment or earnings were provided. No explanation was offered for defendant's unemployment for three years.
Defendant testified that her marriage to plaintiff started out happy. She stated that over time plaintiff became verbally abusive. Defendant testified that plaintiff started fights with her for no apparent reason, frequently yelled and cursed at her, and called her stupid. Defendant recalled that plaintiff would storm off after an argument and then come back later and act as if nothing had happened. Defendant detailed many instances of verbal and physical abuse by plaintiff towards her during her first pregnancy. After her son Joseph was born, plaintiff would yell, curse, and throw things at defendant while she was holding the infant child. Defendant testified that in July of 2004, plaintiff and defendant had a planned trip to Florida with their son. After a verbal argument, plaintiff left defendant alone with their son and went to Florida by himself for six (6) weeks. Defendant testified that plaintiff threatened to kill her if she came to Florida. Defendant recalled that during the time that plaintiff was in Florida, he never called to ask about their son.
Defendant testified that in December of 2004, two (2) weeks after the birth of their second son Michael, the house that plaintiff and defendant lived in was destroyed by a fire. Thereafter, for two (2) months, they were forced to live in different places with other families. Defendant admitted that, during that time, she experienced severe depression. Defendant testified that she had an overwhelming feeling of despair because she had two children which she had to care for, she had no belongings, she was living in different places, and she received no help from plaintiff. Defendant testified that in February of 2005, they rented a house in Woodmere. Defendant testified that although plaintiff was not working, he would leave the house early every morning and would not return until late in the evening. Defendant testified that plaintiff did not offer her any help or assistance with the infant children. Defendant noted that her older son was suffering with extensive developmental problems. Defendant testified that when she raised these issues with plaintiff, he simply ignored her or was verbally abusive to her. Plaintiff's only recommendation to defendant was that they attend marriage counseling. Defendant stated that she did not want to attend marital counseling because she felt that it would not help her depression. Defendant testified that in the midst of her depression, plaintiff began calling the Police on her. Defendant testified that on a number of occasions plaintiff manipulated her into thinking that he was taking her for help and instead would take her to hospitals. In March 2005, defendant called plaintiff for help with the children. Plaintiff responded that he would come home and take her to the doctor for help. When plaintiff arrived home, he took the children out of the house, the Police arrived, and defendant was taken by the Police to Franklin General Hospital. Defendant remained in the hospital for seventeen (17) days. Defendant testified that during her hospitalization, plaintiff rarely visited her or brought the children to see her. Defendant testified that she pumped breast milk every day for the infant children, but plaintiff never came to retrieve it. Defendant testified that upon returning home from the hospital, her depression was still present. She testified that she was released by the hospital without a follow up schedule and was simply prescribed medication. Defendant testified that the same routine that had overwhelmed her before the hospitalization continued when she returned home. Plaintiff continued to leave her alone all day with the children, and he came home late at night. Defendant testified that she continued to feel depressed and overwhelmed. In June of 2005, plaintiff filed for Divorce.
Defendant testified that in July of 2005, she was again admitted to Franklin General Hospital. Defendant testified that upon her release, her relationship with plaintiff remained strained, and she continued to feel depressed and overwhelmed. Defendant testified that plaintiff would have daily arguments with her and then call the Police and have her arrested. Defendant testified that in September of 2005, she was admitted to Hillside Hospital for two months. She stated that she was diagnosed with Bi-polar Disorder, given medications, and released. Defendant testified that the medication did not help her feel better, it only made her tired, and consequently she discontinued taking it.
Defendant testified that from 2006 through 2008, her attempts to engage in supervised visitation with her children were constantly thwarted by plaintiff. Defendant testified that plaintiff would bring the children late to the visitation, or cancel the visitation, or change the dates of the visitation without notifying her. Defendant testified that plaintiff refused to make up time for cancelled visitation and refused to extend the times of the visitation when he came late. Defendant testified that during the exchange of the children for visitation, plaintiff would yell and scream at her, push her, choke her, spit at her, and then call the Police and have her arrested. Defendant testified that the Police were called by plaintiff approximately fifteen (15) times regarding issues caused by plaintiff, which resulted in several arrests of defendant. Defendant testified that all of her arrests resulted in Adjournments in Contemplation of Dismissal.
Defendant testified that in March of 2008, plaintiff left New York State with the two infant children and was missing for approximately (6) six weeks. On April 15, 2008, plaintiff was found and arrested by the Police in Arkansas. Defendant testified that she flew to Arkansas to pick up her children who were held in foster care following plaintiff's arrest. Defendant learned that plaintiff had told the infant children that she had died. Defendant noticed that her older son Joseph was wearing a cast. Joseph informed her that plaintiff had broken his arm. Thereafter, defendant was given temporary custody of the children and plaintiff was granted supervised visitation. Defendant testified that plaintiff continued to cause problems with visitation. Defendant testified that her original diagnosis of Bi-polar Disorder was incorrect and that she was ultimately diagnosed with Postpartum Depression.
With respect to finances, defendant testified that in 2006, when she was arrested and removed from the house, all of her belongings were left in the marital residence with plaintiff. Defendant stated that plaintiff has all of her jewelry (including a diamond ring), her money, her photos, her clothing, and their furniture. No detail or value of any of the items delineated was testified to by defendant or provided to the Court.
B. TESTIMONY OF R.L.
Ms. L. testified that from 2007 to 2009, she was involved in effectuating Court Ordered supervised visitation of the infant children between plaintiff and defendant. She testified that she was responsible for picking up the infant children from plaintiff, bringing the infant children back to her home for supervised visitation with defendant, and returning the infant children to plaintiff after the visitation had concluded. Ms. L. testified that she was involved in approximately fifteen (15) visitation sessions. She recalled that on many occasions the infant children did not want to go back to plaintiff after the visitation concluded. Ms. L. testified that when she picked up the infant children from plaintiff, they were not properly dressed, and their clothes were either too big or too small. She testified that the infant children were frequently hungry when they arrived for visitation. Ms. L. testified that she was warned by plaintiff never to be late for the pick up or drop off of the infant children, and consequently she was always afraid to be late. Ms. L. remarked that she did not want to have any issues with plaintiff. She recalled that plaintiff was frequently late to drop off and pick up the infant children. Ms. L. testified that in April of 2008, she traveled to Arkansas with defendant to bring the infant children home. Ms. L. testified that she has interacted with the infant children since defendant has had custody and feels that the children are well taken care of, well dressed, and well adjusted.
C. TESTIMONY OF A.K.
Ms. K. testified that from 2007 to 2008, she was involved in effectuating the Court Ordered supervised visitation of the infant children between plaintiff and defendant. She testified that many times plaintiff was late dropping off the children or simply failed to appear for the visitation without previously notifying her. Ms. K. described a number of incidents where plaintiff cursed and screamed at her. She testified that on one occasion, upon arriving at the local Police Station to drop off the infant children after visitation, the infant children refused to get out of the car to return to plaintiff. Ms. K. said that it took a few minutes for her and defendant to remove the infant children from the car. When they eventually removed the infant children from the car and brought them into the Police Station for the exchange, plaintiff had defendant arrested for arriving late. Ms. K. testified that she has interacted with the infant children since defendant was given temporary custody. Ms. K. described the infant children as happy and well adjusted.
D. TESTIMONY OF R.W.
Ms. W. testified that she was involved in effectuating the Court Ordered supervised visitation of the infant children between plaintiff and defendant. She testified that the infant children were dropped off at her house by plaintiff, where defendant visited with the infant children. Ms. W. testified that at the end of the visitation plaintiff would return to her house and she would bring the infant children out to plaintiff's car. Ms. W. described the visitations as extremely difficult because plaintiff was often late or would not appear. She said that plaintiff would not extend the visitation time even when he arrived late and refused to schedule make up time when he unilaterally cancelled the visitation. Ms. W. testified that plaintiff told her to make sure the infant children were ready on time. She recalled that each time plaintiff picked up the infant children after visitation he was always upset about something. Ms. W. described a number of incidents where plaintiff would scream at her and raise his hands. Ms. W. testified that plaintiff yelled and cursed at her regularly in front of the infant children. Ms. W. testified that when plaintiff brought the infant children to visitation, they appeared to be dressed haphazardly. Ms. W. testified that defendant enjoyed positive visits with the infant children. She stated that the infant children often did not want to go back to plaintiff at the end of the visitation.
FINDINGS OF FACT
In a non-jury trial involving the credibility of the respective witnesses, determining their credibility are matters committed to the Trial Court's sound discretion. (See Ivani v. Ivani, 303 AD2d 639, 757 NYS2d 89 [2d Dept. 2003]; Varga v. Varga, 288 AD2d 210, 732 NYS2d 576 [2d Dept. 2001]; Ferraro v. Ferraro, 257 AD2d 596, 684 NYS2d 274 [2d Dept. 1999], appeal denied 93 NY2d 803, 689 NYS2d 16. Having heard all of the trial testimony, observing the demeanor of all of the witnesses, reviewing all of the evidence, considering the arguments of counsel, and evaluating all of the facts and circumstances regarding this matter, this Court makes the following findings of fact:
The Court finds that the testimony of plaintiff was not credible and was often false. Plaintiff was extremely combative on the witness stand. Plaintiff was unable to follow simple Court directives regarding his conduct, demeanor, and decorum during the proceedings. Plaintiff's testimony often defied logic, reason, and common sense. Plaintiff claimed that he was verbally and emotionally abused by defendant throughout the entire marriage, yet his examples of this alleged abuse consisted of defendant calling him a bum, saying that he did not care, and that he was not responsible. Plaintiff's testimony regarding his prior employment history and finances was vague and evasive. Plaintiff was unable to provide a clear employment history. Plaintiff was unable to explain why he has not worked in over six years. Plaintiff provided no explanation whatsoever regarding why he has not paid Court Ordered child support for over two years. Plaintiff's testimony regarding the problems which he experienced with supervised visitation is unsupported by the record. In fact, the three defense witnesses directly and consistently contradicted plaintiff's accounts of the problems experienced during the supervised visitation. Each witness unequivocally indicated that it was plaintiff who caused all of the problems during visitation.
This Court finds that the testimony of defendant was credible. The defendant was open and forthcoming when testifying. The defendant's testimony regarding the history of the marriage and the problems with the supervised visitation were all supported by the record. The Court finds that the testimony of the three defense witnesses, R.L., A.K., and R.W., was credible.
Overall, this Court finds that plaintiff engaged in cruel and inhuman treatment of defendant over the course of the marriage. Plaintiff engaged in a regular and cyclical pattern of domestic violence using verbal, emotional, mental and physical threats, and abuse. This Court finds that plaintiff provided defendant with absolutely no support or assistance with their infant children and intentionally allowed her mental state to deteriorate. Plaintiff then engaged in an alternating pattern of having defendant committed to mental hospitals and having her arrested without a valid basis. This Court finds that plaintiff intentionally frustrated the supervised visitation process when he was the custodial parent, and refused to properly engage in meaningful visitation when defendant was the custodial parent.
GROUNDS FOR DIVORCE
The parties entered into a stipulation dated February 20, 2007, agreeing to a divorce based on Domestic Relations Law Section 170 (2), constructive abandonment. Accordingly, the plaintiff is granted a judgment of divorce on said grounds.
CUSTODY AND VISITATION
Plaintiff seeks joint custody with defendant of the infant children, J.L., born on December 19, 2002, and M.L., born on December 15, 2004. Plaintiff requests that all of the religious and educational decisions be made by him. Plaintiff consents to defendant having liberal unsupervised visitation.
Defendant seeks sole legal, physical, and residential custody of the infant children. Defendant requests that any visitation by plaintiff be supervised and therapeutic with a monitoring process.
The Attorney for the Children recommends that defendant be granted sole legal, physical, and residential custody of the infant children. The Attorney for the Children recommends that plaintiff initially have therapeutic supervised visitation with the infant children, and then unsupervised visitation.
This Court conducted separate in-camera interviews with each of the infant children, with the Attorney of the Children present. The Court inquired into various aspects of the infant children's experiences and desires. The Court also inquired into the behavior of plaintiff and defendant during periods when each was the custodial parent and during visitation. The Court was disturbed by many of the infant children's disclosures regarding plaintiff. In addition, equally troubling was plaintiff's response to a Nassau County Family Court Order of Habeas Corpus requiring him to produce the infant children in Court in March of 2008; i.e., plaintiff absconded from New York State with the children and could not be found for several weeks. He also told the infant children and strangers that defendant was dead.
In deciding a custody dispute, it is this Court's obligation to determine what is in the best interest of the children based on a consideration of all the relevant facts and circumstances (See New York State Domestic Relations Law ("DRL") Section 70; Friederwitzer v. Friederwitzer, 55 NY2d 89, 447 NYS2d 893; Eschbach v. Eschbach, 56 NY2d 167, 451 NYS2d 658; Tabernuro v. Jones , 23 AD3d 667, 807 NYS2d 606 [2d Dept. 2005]; Mutterperl v. Reyes, 293 AD2d 542, 740 NYS2d 415 [2d Dept. 2002]). This Court has reviewed all of the relevant facts and circumstances, made a determination of the credibility of the witnesses, reflected upon the character, temperament, and sincerity of the parties, and has considered the quality of the home environment, the parental guidance the custodial parent provides for the children, the ability of each parent to provide for the children's emotion and intellectual development, financial status and ability of each parent to provide for the child, relative fitness of the respective parents, and the effect an award of custody to one parent might have on the children's relationship with the other parent. (See: Zafran v. Zafran, 306 AD2d 468, 761 NYS2d 317 [2d Dept. 2003], leave dismissed 4 NY3d 826, 796 N.Y.S2d 579, leave denied 8 NY3d 837, 830 NYS2d 8). After reviewing same, this Court finds that the best interests of the children would be served by granting defendant S.H. sole custody of the infant children.
Accordingly, in light of the foregoing, it is hereby:
ORDERED , that defendant is hereby granted sole physical, legal, and residential custody of J.H., born on December 19, 2002, and M.H., born on December 15, 2004; and it is further
ORDERED , that defendant shall have sole decision making authority over all matters concerning the infant children; and it is further
ORDERED , that plaintiff shall engage in and complete a twenty-six (26) session Domestic Violence program within one (1) year of the date of this Order, and provide written proof of same, through his attorney, to this Court, to defendant's attorney, and to the Attorney for the Children; and it is further
ORDERED , that plaintiff shall be permitted the right to exercise therapeutic supervised visitation with the infant children at least once per week for one (1) hour per week through Visitation Alternatives, or any similar Agency providing therapeutic supervised visitation, or any other therapeutic visitation as agreed to by the parties and approved by the Attorney for the Children, for a continuous six (6) month period from the date of this Order. Upon completion of the six (6) month period, plaintiff shall be permitted non-therapeutic supervised visitation for two (2) hours per week for a continuous period of six (6) months from the date of this Order to one (1) year after the date of this Order.
ORDERED , that provided plaintiff has completed said Domestic Violence Program, and the continuous therapeutic supervised visitation period, and the continuous supervised visitation period, and provided proof of same to this Court, to defendant's attorney, and to the Attorney for the Children, plaintiff shall have the right to exercise unsupervised visitation with the infant children as follows:
REGULAR VISITATION :
a) The first and third weekend of each month from Friday at 5:00 p.m. until Sunday at 6:00 p.m., or any other alternate weekends as agreed to by the parties. Plaintiff shall pick up and drop off the infant children curbside at the residence of defendant, or as otherwise agreed to by the parties.
b) The second and fourth Monday of each month from 4:30 p.m. until 7:30 p.m., or any other alternate Mondays as agreed to by the parties.
c) If plaintiff cannot exercise the aforesaid visitation, he will give twenty-four (24) hours notice to defendant and said visitation shall be waived, unless otherwise agreed to by the parties. d) In the event that either party is running late for any scheduled pick up or drop off, they shall immediately notify the other party. In no event shall either party be more than thirty (30) minutes late for any scheduled pick up or drop off. If plaintiff is more than thirty (30) minutes late for a scheduled pick up, visitation for that entire block of visitation shall be waived, unless otherwise agreed to by the parties. If plaintiff is more than thirty (30) minutes late for a drop off, then his subsequent visitation will be reduced by the amount of time that he was late for the drop off. If defendant is more than thirty (30) minutes late for a drop off, then plaintiff's visitation time for that visitation shall be increased by the amount of time that defendant was late. If defendant is more than thirty (30) minutes late for a pick up, then plaintiff's visitation time for the next scheduled visitation shall be increased by the amount of time that defendant was late for the pick up.
e) In the event of illness of either one or both of the infant children, defendant may cancel the visitation, regarding the sick infant child(ren), upon giving twenty-four (24) hours notice to plaintiff, with a specific explanation of the illness and the reason that the visitation can not occur. Said cancelled visitation shall be rescheduled at a time mutually agreed to by the parties.
HOLIDAY VISITATION :
f) Holiday Visitation shall be from 10:00 a.m. until 8:00 p.m. as follows:
HOLIDAY EVEN YEARS ODD YEARS President's Day Father Mother Memorial Day Mother Father Fourth of July Father Mother Labor Day Mother Father Columbus Day Father Mother Thanksgiving Day Mother Father Mother's Day Mother Mother Mother's Birthday Mother Mother Father's Day Father Father Father's Birthday Father Father Children's Birthdays Father Mother
Any Other Holidays (Religious or otherwise) Father Mother
g) Holiday Visitation shall be considered a single day event and shall take priority over Regular Visitation and School Vacation Visitation, for that day only, unless otherwise agreed to by the parties.
h) Father's Day, Mother's Day, each Parent's Birthday, and the infant children's Birthdays, shall take precedence over any other Visitation, for that day only. Both parties shall make certain that their visitation during these times will not interfere with any of the infant children's important commitments which may fall on these days.
SCHOOL RECESS VISITATION:
i) School Recess Visitation shall commence at 6:00 p.m. on the last day of school immediately preceding such School Recess and terminating at 8:00 p.m. on the last day of the School Recess period as follows:
EVEN YEARS ODD YEARS Spring Recess Mother Father Thanksgiving Recess Mother Father December/January Holiday Recess Father Mother Winter/February Recess Father Motherj) School Recess Visitation shall take precedence over Regular Visitation. School Recess Visitation shall not take precedence over Holiday Visitation, for that day only, unless otherwise agreed to by the parties.
SUMMER VACATION VISITATION:
k) Each Party shall have two contiguous uninterrupted weeks of Summer Vacation Visitation with the infant children, in either July or August. The plaintiff shall submit his selected two weeks, in writing, to defendant no later than April 15th of each year. Defendant shall submit her selected two weeks, in writing, to plaintiff no later than May 1st of each year. The Summer Vacation Visitation selection shall be binding upon plaintiff and defendant, unless otherwise agreed to by the parties. If plaintiff does not submit his selected two weeks to defendant by April 15th, then defendant may first choose her Summer Vacation Visitation with the infant children. Summer Vacation Visitation weeks shall take precedence over all other Visitation, with the exception of required summer school remedial education.
ORDERED , that plaintiff and defendant shall make every effort to maintain access and contact between the infant children and the other parent. Both plaintiff and defendant may telephone the infant children when they are in the other parent's care between 7:00 p.m. and 7:30 p.m. every evening; or at a time otherwise agreed to by the parties; and it is further
ORDERED , that neither plaintiff nor defendant shall make disparaging remarks about the other in the presence of the infant children. Neither parent shall discuss any issues pertaining to this action or any Court case with the infant children; and it is further
ORDERED , that both plaintiff and defendant shall advise the other regarding all major issues concerning the infant children, including but not limited to the health, education, welfare, extra curricular, religious, and other activities. If either parent has knowledge of any illness, accident, or other circumstances seriously affecting the infant children's health or well-being, they will immediately notify the other parent. Plaintiff and defendant shall be entitled to contact and obtain information from physicians, dentists, mental health professionals, or any other health care providers of the infant children; and it is further
ORDERED , that plaintiff and defendant shall be entitled to contact and obtain information from any teacher, substitute teacher, teacher's aide, school or other educational provider of the infant children. Both defendant and plaintiff shall be notified of all school events including but not limited to performances, ceremonies, parent/teacher conferences, and open house school events. Both plaintiff and defendant shall have the right to attend any and all school related events and extracurricular activities; and it is further
ORDERED , that plaintiff and defendant shall separately engage in and complete a parenting course within six (6) months of the date of this order, and provide written proof of same to this Court through their attorneys; and it is further
ORDERED , that neither plaintiff nor defendant shall arbitrarily withhold access to the infant children as provided for in this agreement; and it is further
ORDERED , that both plaintiff and defendant shall keep the other advised of the whereabouts of the infant children; and it is further
ORDERED , that both plaintiff and defendant shall keep the other advised of their current telephone numbers, addresses, and any other pertinent contact information; and it is further
ORDERED , that plaintiff shall not be permitted to take the infant children outside of New York State unless agreed to by defendant, and for no longer than one (1) week; and it is further
ORDERED , that plaintiff shall not leave the infant children for any overnight visits with any other person unless plaintiff is present with the infant children for the entire night; and it is further
ORDERED , that neither plaintiff nor defendant shall use corporeal punishment on either of the infant children.
EQUITABLE DISTRIBUTION
Domestic Relations Law § 236(b)(5)(d) sets forth the statutory factors which must be considered when rendering a determination regarding the equitable distribution of marital assets, i.e.:
(1) the income and property of each party at the time of the 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.
Both plaintiff and defendant testified that they are currently unemployed, and have been unemployed for a number of years. The reason for the extended unemployment period of both plaintiff and defendant has been left a mystery to this Court. There was no testimony that either plaintiff or defendant has sought or is seeking employment. This is particularly surprising in light of the fact that they have two children to support. Both plaintiff and defendant appear to be in good health and capable of working. Both plaintiff and defendant have college educations. This Court finds that there is no valid reason for the unemployment of either plaintiff or defendant other than their unwillingness to work.
Neither plaintiff nor defendant established to the satisfaction of this Court their past earnings. Similarly, neither plaintiff nor defendant established to the satisfaction of this Court their past and current assets, the value of their past and current assets, and whether their past and current assets are separate or marital property. The testimony of both plaintiff and defendant was scattered and incomplete as to what if any assets they had and whether the assets currently exist. No tax returns were submitted to the Court by either plaintiff or defendant. No current Statement of Net Worth was submitted to the Court by either plaintiff or defendant. There was a passing reference by both plaintiff and defendant to the other receiving and using past tax refunds. Similarly, there was a passing reference by both plaintiff and defendant about the existence of nondescript furniture, pictures, household items, miscellaneous jewelry, and a diamond engagement ring. No specific information about these items was provided to the Court. No value regarding these items was properly established to the Court. The Court is left to speculate about what assets the parties previously had and what assets currently exist. Astonishingly, both plaintiff and defendant went into excruciating detail about the marital discord that led to the instant divorce action, notwithstanding the fact that the grounds for the divorce was already resolved by stipulation. However, neither party covered, in any detail, the relevant financial issues necessary for this Court to make an equitable distribution determination as set forth in D.R.L. § 236(b)(5)(d).
In light of the parties' complete failure to satisfy their respective burdens of proof regarding the parties' separate or marital assets, this Court is unable to direct any specific distribution of assets. The Appellate Division has held that in a matrimonial action, where there is an absence of proof regarding the value of property or the reasons for treating property as marital property, the Court may refuse to consider any equitable distribution of those assets. (See Gredel v Gredel, 128 AD2d 834, 513 NYS2d 754 [2d Dept. 1987], leave dismissed 70 NY2d 693, 518 NYS2d 1028; Michalek v Michalek, 114 AD2d 665, 494 NYS2d 487 [3d Dept. 1986], leave denied 69 NY2d 602, 512 NYS2d 1025; Moller v Moller, 188 AD2d 807, 591 NYS2d 244 [3d Dept. 1992]).
With respect to the American Century and Interactive Brokers, LLC accounts, each party is entitled to fifty (50%) percent of the balances in said accounts as of June 30, 2005. To the extent that either party has received more than fifty (50%) percent of the balance in either account, as of June 30, 2005, the other party is entitled to an offset against amounts due from that party herein, excluding child support arrears.
Any amounts owing to either party after the offsets as provided herein, must be paid within thirty (30) days of this Decision and Order. Any amounts due after thirty (30) days from the date of this Decision and Order may be reduced to a Judgment upon separate application to this Court by the aggrieved party.
Any future Social Security awards received by either plaintiff or defendant with respect to the infant children for the period from August 2005 to June 2006, shall be put in a trust account and held for the benefit of the infant children until they reach the age of twenty-one (21).
MAINTENANCE
It is well settled that the amount and duration of maintenance is a matter committed to the sound discretion of the Trial Court. (See Brodsky v Brodsky, 214 AD2d 599, 624 NYS2d 960 [2d Dept. 1995], Feldman v Feldman, 194 AD2d 207, 605 NYS2d 777 [2d Dept. 1993]; Loeb v Loeb, 186 AD2d 174, 587 NYS2d 738 [2d Dept. 1992]). A Court may Order maintenance in such amount as justice requires considering, inter alia, standard of living of the parties during the marriage, income and property of the parties, distribution of marital property, duration of the marriage, health of the parties, present and future earning capacity of both parties, ability of party seeking maintenance to become self-supporting, and reduced or lost lifetime earning capacity of the party seeking maintenance. (See Kret v Kret, 222 AD2d 412, 634 NYS2d 719 [2d Dept. 1995], Unterreiner v Unterreiner, 288 AD2d 463, 733 NYS2d 239 [2d Dept. 2001]). An award of maintenance may be denied after considering the age and health of the parties, the duration of the marriage, the ability of each to be self-supporting and the fact that neither party was delayed or prevented from foregoing education or other career opportunities during the marriage. (See Smith v Smith , 8 AD3d 728 , 778 NYS2d 188 [3d Dept. 2004]).
Based on the testimony adduced at trial, and the earning capacities of both plaintiff and defendant, this Court declines to award maintenance to either plaintiff or defendant. Any Pendente lite award regarding maintenance is hereby vacated.
CHILD SUPPORT
Domestic Relations Law Section 240 (1-b), requires the Court to follow a three step process for determining child support: calculate the combined parental income; multiplication of the combined parental income up to Eighty Thousand ($80,000.00) Dollars by the specified child support percentage, and allocation between the parties on a pro rata basis unless application of the percentage is deemed unjust or inappropriate.
In the case at bar, both parties are currently unemployed, and have been unemployed for an extended period of time. This Court finds that the parties are unemployed based on choice and not based on circumstance. As set forth above, both parties have college degrees. Plaintiff's previous employment garnered him Twenty-Five Thousand ($25,000.00) Dollars, as set forth on his Net Worth Statement filed with the Court in 2006. Defendant testified that she was making approximately Six Hundred ($600.00) Dollars per week. Therefore, this Court imputes a salary of Twenty-Five ($25,000.00) Dollars to both plaintiff and defendant. Based on the imputed salary, the combined imputed salary for both plaintiff and defendant is Fifty Thousand ($50,000.00) Dollars. The statutory obligation for two children is twenty-five (25%) percent; therefore, the total child support obligation based on the imputed combined salary is twenty-five (25%) percent of Fifty Thousand ($50,000.00) Dollars, which is Twelve Thousand Five Hundred ($12,500.00) Dollars. Plaintiff's fifty (50%) percent share of the total child support is Six Thousand Two Hundred Fifty ($6,250.00) Dollars or One Hundred Twenty ($120.19) Dollars and Nineteen Cents per week. It is well settled that a proper award of child support is not necessarily based upon a parent's actual income but may be based upon his or her earning potential. (See, Liadis v Liadis, 207 AD2d 331, 615 NYS2d 409 [2d Dept. 1994]; Brodsky v Brodsky, 214 AD2d 599, 624 NYS2d 960 [2d Dept. 1995]).
Child support is retroactive to the date of the service of the pleadings, i.e., June 30, 2005. However, in the instant matter the parties continued to reside together with the infant children until the issuance of a Stay Away Order of Protection in May 2006, against defendant in favor of plaintiff, wherein plaintiff received temporary custody of the infant children. Plaintiff is entitled to receive retroactive child support for the period that the infant children were in his custody, from June, 2006, to March 15, 2008. This Court is excluding the period when the plaintiff fled from New York State with the infant children in contravention of the Family Court Writ of Habeas Corpus. Defendant is entitled to receive retroactive child support from April 15, 2008, to the date of this Order. Plaintiff shall receive a credit of Ten Thousand Eight Hundred Seventeen ($10,817.10) Dollars and ten cents and defendant shall receive a credit of Twelve Thousand Seven Hundred ($12,740.14) Dollars and fourteen cents. Therefore, defendant is awarded retroactive child support in the net amount of One Thousand Nine Hundred Twenty Three ($1,923.04) Dollars and four cents. This amount must be paid by plaintiff to defendant within sixty (60) days of this Order. If said amount remains outstanding after sixty (60) days, defendant may separately submit to this Court an application for a Judgment against plaintiff regarding same.
Additionally, plaintiff is Ordered to pay fifty (50%) percent of the infant children's past (retroactive to April 15, 2008), present and future: un-reimbursed medical and dental expenses or co-payments, school tuition (including college), summer camp tuition, and child care expenses.
The parties are directed to submit Findings of Fact and a Judgment of Divorce within sixty (60) days from the date of this Decision and Order.
This constitutes the opinion, decision and Order of the Court.