Opinion
20919/05.
Decided on March 13, 2007.
The plaintiff commenced this action on September 26, 2005 by the filing of a summons and verified complaint. The defendant was served with said papers on October 6, 2005, by personal service, but failed to appear or serve an answer. The plaintiff submitted an application for a default judgment on the ground of abandonment, (DRL 170(2), with a request for an inquest on equitable distribution of the marital residence owned by the parties as tenants by the entirety.
The court scheduled an inquest for November 14, 2006. The defendant was served with a copy of the order scheduling the inquest, by regular and certified mail, but failed to appear on the scheduled date. The court conducted the inquest so that a judgment could be rendered in compliance with mandates of Domestic Relations Law § 236(B). ( See, Otto v. Otto, 150 AD2d 57, 58).
BACKGROUND
The parties herein married on December 21, 1971, and had three children, Theodore, born July 3, 1977, Stephen, born July 15, 1991, and Elizabeth, born August 3, 1992. In her complaint, the plaintiff sought inter alia divorce on the ground of abandonment, pursuant to DRL § 170(2), support and maintenance of the plaintiff and infant children, title and exclusive possession of the marital residence and its contents located at 134-23 246th Street, Rosedale, New York.
During their marriage, the parties made a purchase of the subject real property, as tenants by the entirety, for the price of $85,000, to which they received a deed dated October 17, 1984. Of the aforementioned sum, there was a mortgage secured by the parties for approximately $75,000, which was paid on a regular basis by both parties. On or about September 1994, the parties refinanced the marital residence in the sum of $107,000. Plaintiff alleges that the net proceeds of the mortgage refinancing in the approximate sum of $30,000 were taken by the defendant and utilized by him to pay his personal debts.
On or about March, 1996, the defendant disappeared, abandoning the plaintiff and their three children. From 1996 to 2005, the plaintiff, without any contribution from the defendant paid the mortgage, purchased food, clothing, covered school expenses and took all necessary steps to maintain the household, acting in effect as a single parent.
On August 27, 2005, the defendant suddenly materialized and knocked on door of the martial residence. Plaintiff received a phone call from one of her children saying, "Ma, there is someone at the door. I think it is our father." The plaintiff rushed home to find that defendant had dropped off a piece of paper containing his address and had left as quickly as he appeared.
The defendant left the marital residence, and permanently abandoned the plaintiff and three minor children in 1996. Plaintiff alleges that at the time of the abandonment, defendant depleted all marital funds from their joint savings accounts and bonds accrued by the parties in the approximate sum of $20,000, leaving the family without funds.
From the time of defendant's departure and permanent abandonment to the present, defendant has failed to provide any maintenance or support of the plaintiff and children of the marriage. Plaintiff seeks as equitable distribution, sole title to the marital residence and it contents, in addition to exclusive rights to her pension benefits and deferred compensation.
EQUITABLE DISTRIBUTION
Marital Property
"While distribution of assets is a significant undertaking for both parties, it is not a process carried out by calculator but rather the application of the principles of law by an impartial judicial officer whose job is not to be mathematically precise, but rather to be fair in all of the circumstances to each party as an individual." See Cappiello v Cappiello, 110 AD2d 608; Schwartz v. Schwartz, 2004 NY Slip Op 51661(U), 3 (NY Misc. 2004).
Defendant's interest in the marital residence should be transferred to the plaintiff in the case at bar. The court in Bittner v. Bittner ( 296 AD2d 516) directed the defendant to convey his interest in the marital residence to the plaintiff, upon the condition that she deliver to him a satisfaction of all money judgments in her favor for support arrears entered prior to the judgment. The court held this transfer to be appropriate to offset the support arrears fixed against the defendant for his failure to comply with the pendente lite support order that remained prior to the entry of the judgment of divorce. (See, Maher v Maher, 144 AD2d 343: Erdheim v. Erdheim, 119 AD2d 623; Maloney v. Maloney, 114 AD2d 440; Sementilli v. Sementilli, 102 AD2d 78). In the instant matter, plaintiff-wife did not commence any pre-action proceeding for child support or maintenance. While no arrearage can be attributed to defendant, the husband's lack of contribution of any monies for child support from March, 1996 to the present time is a factor which warrants consideration by the court.
At the time defendant abandoned his family, he was earning approximately $50,000 a year. The parties had three minor children, but the eldest was nineteen years old. Even if the nineteen year old child is discounted from the child support computation, the defendant's child support obligation pursuant to the guidelines was approximately $11,000 per year. When this action was commenced, the defendant had not paid any child support for nine years. Without considering any probable increase in defendant's earnings, he owed $99,000 in child support. The defendant would also have been required to share equally in the payment of the following expenses incurred by the plaintiff: child care — $66,727, life insurance — $11,400; school tuition — $14.595, after school activities — $4,560. The plaintiff also made mortgage payments of $165,100, Con Edison payments of $18,000, and payments to Keyspan for heating of $19,800. It should be noted that the marital residence at the time of trial was valued at $375,000.
The value of the marital residence is $375,000 with a balance of $343,000 remaining after the mortgage balance is deducted. Therefore, defendant's share, based on an equal apportionment, would be approximately $171,500. This court finds that defendant's share of the expenses incurred by the plaintiff in maintaining the marital residence and supporting her three children far exceeds his interest in the marital residence.
CONCLUSION In awarding the plaintiff title and exclusive possession of the marital residence, the court weighed the following factors in deciding the award: the arrears of child support, maintenance, mortgage payments, the lack of any good faith effort on the defendant's part to offer any sum of money to his family, as well as the unknown whereabouts of defendant for a period exceeding nine years. The court in reaching this conclusion considered the thirteen factors delineated in the equitable distribution of the martial property. Domestic Relations Law § 236B(5)(d). The premise of the equitable distribution law as it has been written and interpreted by the courts of this state is that the marriage is an economic partnership. ( See, Price v. Price, 69 NY2d 8, 14; O'Brien v. O'Brien, 66 NY2d 476). The success of this partnership depends not only on the contributions of the wage earner spouse but on various contributions made by the non-titled spouse. Here, the record is void of any such worthy contributions. It is defendant's abandonment for nine years and failure to contribute any monies during this period that created a substantially unequal burden upon the plaintiff to the benefit of the defendant. This in effect constituted an unjust enrichment, as the non-contributing defendant failed to support the plaintiff and three children.The plaintiff's request to be granted a divorce on the ground of abandonment is so granted. Plaintiff is not seeking maintenance and has agreed to waive any rights she may have to defendant's pension. In light of the foregoing, plaintiff's request for sole title to the marital residence and its contents, retention of her pension benefits and deferred compensation, is more than reasonable under the aforementioned circumstances. Plaintiff is not however seeking maintenance and has agreed to waive any rights she may have to defendant's pension.
A copy of this decision is to be served upon the defendant together with the proposed findings and judgment.