Opinion
XXXXX
08-01-2019
RACQUEL L.J., Plaintiff, v. DERWIN J.J., Defendant.
Rena C. Dawson, Esq., Attorney for Plaintiff, Koehler & Issacs LLP, 61 Broadway - 25th Floor, New York, NY, 1006 Derwin J.J. Defendant, Pro Se
Rena C. Dawson, Esq., Attorney for Plaintiff, Koehler & Issacs LLP, 61 Broadway - 25th Floor, New York, NY, 1006
Derwin J.J. Defendant, Pro Se
Sunshine, J.
The Court must determine, after trial, the appropriate amount of child support, maintenance and counsel fees in the context of a defendant-father whose prior sworn testimony and affidavits were found after trial patently false and misleading and designed to obfuscate his true income. Plaintiff-wife Racquel L.J. and defendant-husband Derwin J.J. were married in September 2015 in a civil ceremony in Hempstead, NY. There is one (1) unemancipated child of the marriage, D.J.J., born in 2011, who now resides with the plaintiff. The parties lived together from September 2015 to April 29, 2016, in Brooklyn, NY. Plaintiff filed a Summons and Complaint for divorce pro se on October 17, 2016 pursuant to Domestic Relations Law § 170(7) asking for spousal maintenance and requesting to retain her last name (L). Domestic Relations Law § 170(7) states:
"An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds: ...(7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce."
Plaintiff testified that the marriage irretrievably broke down on April 29, 2016, at xxx Avenue, Brooklyn, NY. Defendant was personally served the Summons and Complaint as well as a copy of the Child Support Standards Chart and a copy of the Notice of Continuation of Health Care Coverage on October 19, 2016. Defendant answered by asking for dismissal of plaintiff's DRL § 170(7) claim, denying its truth, and counterclaimed under DRL § 170(2) on grounds of abandonment.
DRL § 170(2) states: "An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:...(2) The abandonment of the plaintiff by the defendant for a period of one or more years."
Plaintiff was born in 1989 and is twenty-nine (29) years of age. She is employed by a home health care agency and reported her income at $30,536 in 2017 and $27,040 in 2018. Defendant was born in 1975 and is currently forty-five (45) years of age. He works as a car salesman in Nassau County, New York and his tax documents list multiple employers. Defendant reported lower incomes on his sworn statements — including his affidavit of net worth — during litigation than that were ultimately revealed at trial on his tax forms.
Before commencing this instant action, the parties litigated support issues in the Kings County Family Court. During that litigation, defendant swore under oath that he earned approximately $65,000 a year; however, during this instant trial, plaintiff established that defendant was not truthful about his income. In fact, the record during this instant litigation revealed that in 2016 defendant earned income of at least $96,620.24 as totaled from three (3) 2016 tax forms ($66,581.28; $23,850; and $6,188.96) and defendant's 2017 income totaled at least $135,683.07 from one 2017 W2 form that reports $121,115.07 and another 2017 1099 MISC form reports $14,568.
Defendant testified that he was unaware that his submitted Statement of Net Worth dated August 4, 2017, which does not accurately reflect the entirety of his earnings, was a sworn affidavit.
Plaintiff endured a long procedural battle in an effort to get support for the parties' child. Plaintiff originally filed for child support in Kings County Family Court on October 12, 2016 alleging that defendant had failed to provide fair and reasonable support for her and the subject child based on his means and earnings. Plaintiff's application in Family Court was denied on December 2, 2016 because the child was born in 2011 before the parties were married and defendant's name was not on the birth certificate. Plaintiff testified that defendant did not come to the hospital so she was unable to put his name on the birth certificate without him present at the hospital.
Thereafter, plaintiff filed a paternity petition on November 30, 2016 on grounds that defendant had acknowledged paternity by furnishing support after initially opposing said application. On September 14, 2017, both parties appeared before Honorable Dean Kusakabe in King's County Family Court. An Order of Affiliation was issued, in which both parties waived a hearing, and it was formally established that defendant was the father of the subject child.
Thereafter, plaintiff filed a petition for support in Kings County Family Court. During that proceeding, defendant testified that he earned $65,000 a year. Plaintiff testified she earned approximately $30,000 a year. The Support Magistrate of Kings County Family Court issued a Temporary Order of Support for $400 biweekly payments, commencing September 22, 2017, to be paid through the Support Collection Unit.
On October 17, 2016, plaintiff commenced this action for divorce in Kings County Supreme Court which also sought temporary spousal support. On February 14, 2018, this Court issued an Order of Consolidation regarding the previous actions brought in King's County Family Court.
On August 1, 2017, this Court issued a Temporary Order of Spousal Maintenance upon the defendant's default and lack of any opposition papers. On default, this Court awarded plaintiff $629.95 monthly in temporary maintenance pursuant to plaintiff's submitted maintenance guideline worksheets utilizing the parties' 2015 W2 forms. The record reveals that the defendant was served with the temporary spousal support order on September 29, 2017.
Plaintiff filed an Order to Show Cause dated November 16, 2017 seeking to hold defendant in contempt for failure to comply with the temporary support order. Based on the record presented, this Court issued a money judgement of $4,541.58 with statutory interest. Plaintiff waived contempt.
On April 20, 2018, defendant discharged his attorney Kafi Harris Associates PC on the record after a full allocution which was also reduced into a written order. Defendant has appeared pro se since that time. The Court has, at each appearance, informed defendant of his right to obtain counsel and informed him of the risks of self representation, while also providing him with copies of the Child Support Standards Act chart and maintenance guidelines and information about legal resources, bar association panels, and the existence and location of the Office of Self Represented Litigants. The Court also provided defendant extensive time to hire counsel, but he declined to retain counsel and proceeded pro se , even after the matter was adjourned from April 20, 2018 to May 18, 2018 and then again to July 30, 2018. On July 30, 2018, the matter was scheduled for trial to commence on November 15, 2018 at 2:15 p.m. However, due to calendar issues, the trial was adjourned until December 21, 2018 at 9:30 a.m. on consent of all parties and continued trial dates of January 23, 2019 at 2:15 p.m. and January 25, 2019 at 2:15 p.m. were selected. As such, defendant had more than six (6) months to retain counsel prior to the commencement of the trial but he still declined to do so.
The trial commenced on December 21, 2018, after the Court denied defendant's request for a further adjournment. At trial on January 23, 2019, plaintiff's counsel showed discrepancies between the earnings defendant reported in his affidavit of net worth and the income reported on his income tax forms. Defendant testified that the affidavit of net worth only reflected part of his earnings, that he did not know that his previous counsel had notarized the affidavit of net worth and that he did not know that the affidavit of net worth was a sworn document.
On January 25, 2019, defendant again sought to adjourn the trial. Plaintiff's counsel informed the Court that plaintiff was no longer interested in pursuing settlement discussions. The Court denied defendant's application to further postpone the litigation, as defendant had repeatedly delayed trial with a number of excuses and had been given ample time and has financial resources to obtain new counsel. The Court also noted that the trial dates were set on November 15, 2018 on consent of the parties.
This Court has granted defendant numerous adjourn dates which afforded him an opportunity to obtain new counsel after he discharged previous counsel; however, defendant has repeatedly failed to obtain counsel and has sought repeated delays.
In Ramsay v. Ramsay , the Appellate Division held that it was not an abuse of the trial court's discretion to refuse to grant an additional adjournment date in a situation where there has been prolonged and costly litigation due to a party's litigious nature. See Ramsay v. Ramsay , 51 AD2d 734 [2d Dept 1976].
The defendant claimed that he could not afford a lawyer because he had exhausted all of his funds on previous counsel and to maintain his lifestyle. Thereafter, defendant asserted his Fifth Amendment right against self-incrimination and refused to offer any additional testimony. When asked if he rested, he stated:
THE DEFENDANT: Sir, as I said, sir, I plead the Fifth. I don't know how to defend myself. If that's what it is to keep me from not getting in trouble, fine, I will rest. But as far as I said, sir, I don't know how to defend myself. I plead the Fifth.
The record reveals that plaintiff's counsel had to go through comprehensive and extraordinary efforts to locate and obtain defendant's financial records because defendant did not comply with discovery demands. At each appearance, the defendant has been thoroughly allocuted as to the risks of representing himself.
THE LAW
Fifth Amendment: Drawing of the Adverse Inference
Article 1 § 6 of the New York State Constitution states that, "No person...shall...be compelled in any criminal case to be a witness against himself or herself..." This language is substantially identical to that of the Fifth Amendment of the United States Constitution, "No person...shall be compelled in any criminal case to be a witness against himself" ( US Const amend. V, full text).
A party to a civil suit may also take advantage of the Fifth Amendment, "...since the test is whether the testimony might later subject the witness to criminal prosecution, the privilege is available to a witness in a civil proceeding, as well as to a defendant in a criminal prosecution" ( Lefkowitz v. Cunningham , 431 US 801, 805 [1977] ); however in the context of a civil action, a witness' Fifth Amendment privilege is more constrained:
"Unlike his counterpart in a criminal prosecution, the defendant in a civil suit has no inherent right to remain silent or, once on the stand, to answer only those inquiries which will have no adverse effect on his case. Rather, he must, if called as a witness, respond to virtually all questions aimed at eliciting information he may possess relevant to the issues, even though his testimony on such matters might further the plaintiff's case." ( McDermott v. Manhattan Eye, Ear and Throat Hosp. , 15 NY2d 20, 28 [1964].)
Furthermore, a party who invokes the Fifth Amendment privilege in a civil action may be subject to an adverse inference:
"In New York, unlike the rule in a criminal case, a party's invocation of the privilege against self-incrimination in a civil case may be considered by the finder of the facts in assessing the strength of the evidence offered by the opposing party on the issue which the witness was in a position to controvert." (citation omitted) ( Kuriansky v. Bed—Stuy Health Care Corp. , 135 AD2d 160, 178—79 [2d Dept 1988] affd, 73 NY2d 875 [1988] )
The Court of Appeals has held that when a witness invokes the Fifth Amendment in a civil action the Court may draw an adverse inference against that party (see El—Dehdan v. El—Dehdan , 26 NY3d 19, 19 NYS3d 475 [2015] (affirming that in a matrimonial action the Supreme Court was correct to draw an adverse inference against the defendant in a contempt hearing where the defendant invoked his Fifth Amendment privilege).
The New York Court of Appeals has held that drawing the adverse inference against a party based on invocation of the Fifth Amendment privilege is "...akin to that arising when a party fails or refuses to produce a material witness who is within his control..." ( Marine Midland Bank v. John E. Russo Produce Co., Inc. , 50 NY2d 31, 42, 427 NYS2d 961 [1980] ).
It is clear that there are inconsistences, if not outright misrepresentations, among defendant's financial records, sworn affidavits and previous testimony in legal proceedings. When questioned during this trial about these inconsistencies, he invoked his Fifth Amendment right and refused to answer. Defendant testified that he did not understand the questions during trial and provided no additional information to clear up any inconsistences. He was recalcitrant in providing financial document disclosure and his failure to cooperate stalled this action a multitude of times. The Court finds that the defendant lack credibility based upon his unwillingness to provide forthcoming answers during trial and his refusal to explain the many inconsistencies in his financial representations: the Court must, based upon defendant's testimony and invocation of his Fifth Amendment right, draw negative inference related to the discrepancies in his financial representations.
Maintenance
Defendant did not make interim maintenance payments pursuant to the August 1, 2017 order until March 1, 2018. Plaintiff filed an Income Execution, dated March 15, 2018. The defendant was personally served with the Income Execution Order, although he attempted to avoid and to refute that service. Thereafter, this Court entered a Money Judgment on May 18, 2018, of $4,541.58. At trial, plaintiff conceded on the record that she received a total of $6,489.98 in support from defendant's employer pursuant to the income execution and judgment, so the Court will credit defendant with that sum in any arrears calculations.
Plaintiff testified that from September 2017 to February 2018 she did not receive any payments from the defendant's employer.
According to the Income Execution, as of March 1, 2018, defendant owed plaintiff $5,039.60 in spousal support arrears. The document states that monthly deductions in income of the defendant will total $878.95 until retroactive arrears from the August 1, 2017 order are fulfilled.
According to the Affidavit of Service: "Defendant attempted to refuse service by stating 'You didn't put it in my hand it's on film' pointing to the security camera in the showroom of [name redacted]. Defendant than [sic] ran across [name of street redacted]. (4 lane road) with the Order to Show Cause in his hand and stuck them under the windshield wiper of the county vehicle assigned to me."
This number reflected what defendant owed for 10 months of temporary spousal support arrears (totaling $6,299.50) minus what defendant's employer had paid (totaling $1,757.92).
According to the trial transcript, plaintiff conceded to receiving $6,4489.98 in accordance with Plaintiff's Exhibit 16, pay stubs from defendant's employer. However, upon a more detailed inquiry of such exhibit, the Court notes that the dates and amounts plaintiff testified to receiving are not wholly consistent with documentary evidence provided. The pay stubs show that plaintiff was paid at least $5,105.58 from defendant's employer. In a divorce action, if testimony is found to be "contradictory or convoluted" the Court has discretion on determining the credibility of such testimony. (See Hoffman v. Hoffman , 68 AD2d 806, 807 [1st Dept., 1979] ) Since there was an concession on the record, the Court will use that number rather than the pay stubs in evidence.
The pendente lite support order was calculated based upon defendant's representation of his income that, were shown after trial, not to be a true reflection of the his income: this Court must recalculate defendant's spousal maintenance obligation based upon the record after trial despite defendant's attempts to obfuscate his higher income.
As stated in DRL § 236[5-n], an order of pendente lite spousal maintenance does not prejudice either party from an award of post divorce maintenance. DRL § 236[6] states "Except where the parties have entered into an agreement pursuant to subdivision three of this part providing for maintenance, in any matrimonial action, the court, upon application by a party, shall make its award for post-divorce maintenance pursuant to the provisions of this subdivision."
In as much as there was an Order of Consolidation filed, this Court has the discretion to apply calculations to the date of plaintiff's first application. This action was commenced on October 17, 2016, as such, the statute in effect at that date was DRL § 236 [B] , effective after January 23, 2016, requiring Courts to calculate and award maintenance awards derived from applying statutory formulas to parties' annual income in an effort to regulate and create more consistency among maintenance awards up to a cap, which is currently $148,000. See DRL § 236[6][b][4]. This statutory provision is commonly referred to as the maintenance guidelines statute.
The defendant, who is an automobile salesperson maintained that he did not understand financial questions or basic inquiries about his own income. The Court repeatedly and painstakingly explained the process, while noting that the defendant is an automotive salesperson, who works with issues of financing and costs on a daily basis, which calls into question the veracity of his protestations that he does not understand finances.
The Court finds that the defendant's testimony regarding his income were not credible because they were not supported by the credible documentary and testimonial evidence and he displayed a lapse in truthfulness regarding his own finances.
Plaintiff provided defendant's income tax returns, filed by the defendant, which report income approximately twice that which the defendant represented he earned. The Court will use the income reported by defendant on his income tax returns, not the far lower income representations defendant made at trial, in calculating his maintenance and child support. The defendant's income tax returns are far more credible regarding his income than his testimony or his sworn affidavit of net worth.
In accordance with statute, maintenance calculations must be done before child support calculations because maintenance is deducted from the payor's income and added to the payee's income for purposes of calculating child support. See DRL § 236[6][c][1][g].
In order to calculate maintenance, the Court must apply the statutory formula in DRL § 236[B][6][c][1] to the payor's income, subject to a cap of $184,000.00. See DRL § 236[B][6][b][4]. Where the payor's income exceeds the cap, the Court shall conduct calculations as in § 236[B][6][c] up to the statutory cap, then may consider factors listed in DRL § 236[B][6][e][1] in the application of additional maintenance awarded. See DRL § 236[B][6][d]. It must be noted that income above the cap is not used in a maintenance calculation pursuant to the statutory formula for the consideration of income over $184,000.00.
"...[T]he intent of the statute is not simply that temporary or post-divorce maintenance be capped at $178,000 [now $184,000.00] of the payor's income regardless of the extent of the payor's income. Rather, the intent is that the court use its discretion in making maintenance awards on the excess income through a factor-based analysis tailored to the faces of the case." Elena Karabatos & Eric A. Tepper, New York's Spousal Maintenance Guidelines , 51 Fam. L. Q., 51, 61-62 (2017)
Domestic Relations Law § 236[B][6][c][1] provides separate post divorce maintenance guidelines for non-custodial parents subject to child support payments. This distinction is important to make because there is a specific differentiation for those who are subject to child support payments:
"c. Where the payor's income is lower than or equal to the income cap, the court shall determine the guideline amount of post-divorce maintenance as follows:
(1) Where child support will be paid for children of the marriage and where the payor as defined in this subdivision is also the non-custodial parent pursuant to the child support standards act:
(a) the court shall subtract twenty-five percent of the payee's income from twenty percent of the payor's income.
(b) the court shall then multiply the sum of the payor's income and the payee's income by forty percent.
(c) the court shall subtract the payee's income from the amount derived from clause (b) of this subparagraph.
(d) the court shall determine the lower of the two amounts derived by clauses (a) and (c) of this subparagraph.
(e) the guideline amount of post-divorce maintenance shall be the amount determined by clause (d) of this subparagraph except that, if the amount determined by clause (d) of this subparagraph is less than or equal to zero, the guideline amount of post-divorce maintenance shall be zero dollars."
In accordance with subsection (f) of DRL § 236[B][6][c][1], if the amount derived from the above formula would reduce the payor's income below the "self support reserve" for a single person, the calculation would be as follows: "the guideline amount of post-divorce maintenance shall be the difference between the payor's income and the self-support reserve. If the payor's income is below the self-support reserve, there shall be a rebuttable presumption that no post-divorce maintenance is awarded." The self support reserve is defined as follows:
"(6) ‘Self-support reserve’ shall mean one hundred thirty-five percent of the poverty income guidelines amount for a single person as reported by the federal department of health and human services. For the calendar year nineteen hundred eighty-nine, the self-support reserve shall be eight thousand sixty-five dollars. On March first of each year, the self-support reserve shall be revised to reflect the annual updating of the poverty income guidelines as reported by the federal department of health and human services for a single person household. ( NY Dom. Rel. Law § 240(b)(6) )"
Calculations
This Court has fully considered the post divorce maintenance guidelines and statutory factors in DRL § 236[B][6][c][1]. This subsection defines "income" the same as the CSSA, so the Court will deduct FICA and local taxes from the parties' reported incomes.
2016
The parties' incomes, as reported on their 2016 federal income tax returns, are as follows: plaintiff's income, $28,044.54 (Gross income of $31,169.60, less FICA taxes of $2,384.46 and local taxes of $740.60); defendant's income, $88,969.27 (Gross income of $96,630.24, less FICA taxes of $5,566.93 and local taxes of $2,094.04).
Since defendant will also be subject to child support payments, the calculation is charted below:
According to the final maintenance guidelines calculation, the plaintiff is entitled to $10,782.71 in spousal maintenance for the year of 2016, which is $898.56 per month. Pursuant to DRL § 236, spousal maintenance is retroactive to the date of first application. (See Domestic Relations Law § 236 [B][6][a] ; see also Elimelech v. Elimelech , 58 AD3d 672, 874 N.Y.S.2d 490 [2d Dept., 2009] ; Evans v. Evans , 57 AD3d 718, 870 N.Y.S.2d 394 [2d Dept., 2008] ). Plaintiff first filed for divorce and asked for spousal maintenance on October 17, 2016, and is therefore entitled to two (2) months and (2) weeks of spousal maintenance for the year 2016, totaling $2,246.40.
The calculations are as follows:
[$898.56 [payment per month] x 2 [months] = $1,797.12]
[$898.56 / 4 [weeks per month] = $224.64 per week]
[$224.64 x 2 [weeks maintenance] = $449.28]
$1,797.12 [2 months' maintenance] + $449.28 [2 weeks' maintenance] = $2,246.40
2017 - Present
The parties' incomes, as reported on their 2017 federal income tax returns, the most current tax returns provided to the Court, are as follows: plaintiff's income, $27,559.27 (Gross income of $30,536.15, less FICA taxes of $2,336.03 and local NYC taxes of $640.85); defendant's income, $121,894.80 (Gross income of $135,683.07, less FICA taxes of $9,265.27 and local NYC taxes of $4,522.97).
Since defendant will also be subject to child support payments, the calculation is charted below:
According to the final maintenance guidelines calculation, the plaintiff is entitled to $17,489.14 in spousal maintenance per year, which is $1,457.43 per month. Therefore, plaintiff is entitled to maintenance payments in the amount of $17,489.14 for the year 2017 and $17,489.14 for the year 2018. For the present year (2019) to August 1, 2019, plaintiff is entitled to $11,659.44. [$1,457.43 [monthly payment] x 8 [months in 2019] = $11,659.44]
The August 1, 2017 pendente lite order of temporary spousal maintenance was in the amount of $629.95 monthly.
This number does not include additional post judgement maintenance the Court will award to plaintiff.
Under the statute, the Court has discretion to adjust the award of final maintenance calculated pursuant to the maintenance guidelines if the Court believes the award is "unjust or inappropriate" after considering any one or more of enumerated factors listed in DRL§ 236[B][6][e][1-2].
(a) the age and health of the parties; (b) the present or future earning capacity of the parties, including a history of limited participation in the workforce; (c) the need of one party to incur education or training expenses; (d) the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded; (e) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration; (f) the existence and duration of a pre-marital joint household or a pre-divorce separate household; (g) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law; (h) the availability and cost of medical insurance for the parties; (i) the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity; (j) the tax consequences to each party; (k) the standard of living of the parties established during the marriage; (l) the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage; (m) the equitable distribution of marital property and the income or imputed income on the assets so distributed; (n) the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and (o) any other factor which the court shall expressly find to be just and proper. (2) Where the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate and the court adjusts the post-divorce maintenance guideline obligation pursuant to this paragraph, the court shall set forth, in a written decision or on the record, the unadjusted post-divorce maintenance guideline obligation, the factors it considered, and the reasons that the court adjusted the post-divorce maintenance obligation. Such decision shall not be waived by either party or counsel. DRL§ 236[6][e][1-2].
Duration of Maintenance
The legislation established factors specifically so the court may determine the duration of post-divorce maintenance under the guidelines. DRL § 236 [B] [6] [F 1-4] states:
"The duration of post-divorce maintenance may be determined as follows:
(1) The court may determine the duration of post-divorce maintenance in accordance with the following advisory schedule:
[Editor's Note: The preceding image contains the reference for footnote ].
(2) In determining the duration of post-divorce maintenance, whether or not the court utilizes the advisory schedule, it shall consider the factors listed in subparagraph one of paragraph e of this subdivision and shall set forth, in a written decision or on the record, the factors it considered. Such decision shall not be waived by either party or counsel. Nothing herein shall prevent the court from awarding non-durational maintenance in an appropriate case. (3) Notwithstanding the provisions of subparagraph one of this paragraph, post-divorce maintenance shall terminate upon the death of either party or upon the payee's valid or invalid marriage, or upon modification pursuant to paragraph b of subdivision nine of this part or section two hundred forty-eight of this article. (4) Notwithstanding the provisions of subparagraph one of this paragraph, when determining duration of post-divorce maintenance, the court shall take into consideration anticipated retirement assets, benefits, and retirement eligibility age of both parties if ascertainable at the time of decision. If not ascertainable at the time of decision, the actual full or partial retirement of the payor with substantial diminution of income shall be a basis for a modification of the award.
The plaintiff and defendant were married for one (1) year and one (1) month, so the statute advises a duration of maintenance ranging from 15% to 30% of the length of the marriage. Therefore, under the advisory guidelines, plaintiff is presumed to a post-divorce maintenance duration of two months (representing 15% of the length of the marriage) to four (4) months (representing 30% of the length of the marriage). The Court is not obligated to adhere to the duration guidelines; however, if the Court decides to deviate from the guidelines, it must explain its reasoning. See DRL § 236[B][6][e][2]. After considering all the facts and circumstances, the Court finds that here it is appropriate to award the plaintiff two (2) months of final maintenance: this will allow the plaintiff time to plan and adjust for the cessation of maintenance payments. Therefore, in addition to the $11,659.44 defendant owes in arrears for 2019, defendant will be responsible for making additional maintenance payments of $1,457.43 terminating two (2) months from the date of this decision. Had defendant cooperated with this litigation, not sought so many adjournments and provided honest and voluntarily disclosure of his finances during discovery, the pendente lite period may have been far less than what defendant was responsible for in this case. The Court warned defendant of this fact and possible result repeatedly on the record in open court. The Court also notes that defendant never made a formal application to terminate plaintiff's pendente lite support during this litigation. As specifically stated in the statute, a "temporary maintenance order shall not prejudice the rights of either party regarding a post-divorce maintenance award." (DRL§ 236[5][n] ) This Court will not deprive the plaintiff of a post divorce maintenance award as a result of defendant's delaying tactics. Additionally, the award of final maintenance of two (2) months provides plaintiff with predictability and the ability to make necessary financial plans.
Self Support Reserve
According to the Federal Department of Health and Human Services, the 2019 poverty income guidelines amount for a single person is $12,490. The self support reserve for 2019 is $16,862.The calculated maintenance guideline amount of $1,457.43 monthly for two (2) months [total of $2,914.86] would not reduce the defendant's income below the self support reserve where his income exceeds $120,000 annually.
Maintenance for 2 months: $1,457.43 [statutory monthly maintenance] x 2 [ months of maintenance to be paid] = $2,914.86. $121,894.80 [defendant's income] - $2,914.86 [total maintenance] = $118,979.94.
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 NY2d 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 NY2d 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. Pursuant to the Tax Cuts and Jobs Act of 2017, the payment of maintenance [alimony] is no longer deductible to the payor of income to the defendant. (See Tax Cuts and Jobs Act of 2017, Pub. L. No. 115-97, § 11051, 131 Stat. 2089 ) The New York State Tax Code § 612w has not changed. The statute also has not changed and therefore maintenance is still deducted from child support. (See New York State Tax Code § 612w). The defendant has failed to offer any evidence or argument that the non-deductibility of maintenance (or the fact that it is no longer taxable to the plaintiff) should be considered in the Court's decision in fixing the maintenance. The burden would be on the payor spouse. The Court also notes that under the New York State Tax Code, the payments remain deductible by the payor and income to the payee.
The court next multiplies the combined parental income figure, currently up to a cap of $148,000.00, 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 parents support obligation. (See Domestic Relations Law § 240[1—b][b][3] ; [c][2] ) In the final step, where combined parental income exceeds the current cap, [now $148,000.00], 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 NY3d 1, 814 N.E.2d 765 [2004] ).
The CSSA formula provides for regular increase in the statutory guideline cap over time. The CSSA cap is currently $148,000.00. [ NY Fam. Ct. Act § 413, Sup. Practice Commentaries, 2018]
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;"
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 AD3d 526, 928 N.Y.S.2d 727 [2d Dept.,2011] ). This is particularly true where the record supports a finding that a parties' reported income on a tax return is suspect (see Maharaj—Ellis v. Laroche , 54 AD3d 677, 863 N.Y.S.2d 258 [2d Dept.,2008] ). 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 (see Domestic Relations Law § 240[1—b][k] ; see also Lew v. Lew , 82 AD3d 1171, 920 N.Y.S.2d 230 [2d Dept.,2011] ).
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".
Finally, the court is required to articulate its reasons for awarding child support in addition to basic child support (see Wallach v. Wallach , 37 AD3d 707, 831 N.Y.S.2d 210 [2d Dept., 2007] ).
"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 (see Family Ct Act § 413[1][b][6] ; Domestic Relations Law § 240[1—b][b][6] ; Harrison v. Harrison , 255 AD2d 490, 491 [1998] ; Matter of Keay v. Menda , 210 AD2d 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 (see Family Ct Act § 413[1][d] ; Domestic Relations Law § 240[1—b][d] ). (see Moore v. Abban , 72 AD3d 970, 899 N.Y.S.2d 362 [2d Dept., 2010] )."
Child Support Calculation
Pursuant to statute, the Court would calculate retroactive child support from the date of plaintiff's now consolidated original Family Courtpetition for child support, which was filed on October 12, 2016, given the misrepresentations by the defendant of his income in that proceeding. However, the difference between the date of plaintiff's first application and the commencement of this instant action of divorce is de minimus. Therefore, the Court will hereafter use October 17, 2016 when discussing retroactivity.
The plaintiff filed for divorce October 17, 2016, and for child support October 12, 2016. The Court need not use the October 12 date because the difference is de minimus in calculations of child support and maintenance.
2016
Defendant's exact income in 2016 is unclear. Under the facts and circumstances presented, the Court will use the total income reported on his combined 2016 W-2s, which is $96,630.24. Defendant lists the following on his 2016 federal tax return: New York City local tax of $2,094.04 and FICA taxes of $5,566.93. As such, the Court will deduct those payments from his income as follows: $96,620.24 less $7,660.97 = $88,969.27.
Under the controlling statutory scheme at the date of commencement of this action and the applicable case law, the payor spouse is entitled to a deduction for an award of maintenance from his income for the purposes of calculating child support (see generally Lee v. Lee , 18 AD3d 508, 795 NYS2d 283 [2d Dept.,2005] ). As such, the defendant's income for the purposes of calculating child support is $86,722.87. [$88,969.27- $2,246.40 [annual award of maintenance to plaintiff in 2016] = $86,722.87]
Plaintiff's total income in 2016 was listed as $31,169.60. The plaintiff lists the following on her 2016 federal tax return: New York City local tax of $740.60 and FICA taxes of $2,384.46. As such, the Court will deduct those payments from her income as follows: $31,169.60 less $3,125.06 = $28,044.54. The Court is required to add the maintenance she is to receive to her income in 2016. As such, plaintiff's wages in 2016 are calculated to be $30,290.94 [$28,044.54 + $2,246.40]. The combined parental income is $117,013.81. [$86,722.87 + $30,290.94 = $117,013.81]
The Court next multiplies the combined parental income figure up to an initial statutory cap 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 NY3d at 11, 781 N.Y.S.2d 458, 814 N.E.2d 765, supra, quoting DRL 240[1—b][b][3] ; [c][2] ). The current Combined Parental Income Cap under the CSSA is $148,000.00. Here, the combined parental income does not reach the statutory cap.
In accordance with the CSSA, 17% (for one child) of the combined parental income will be applied to child support. Parental child support obligation is $19,892.35. [$117,013.81 [combined parental income] x .17 [applicable child support percentage] = $19,892.35] Based on the parties' combined parental income, the defendant's pro rata obligation is 74.11% and the plaintiff's pro rata obligation is 25.89%. As such, the basic child support award payable from defendant to plaintiff as and for basic child support in 2016 is $14,742.89. [$19,892.35 [child support obligation] x .7411 = $14,742.22]. Plaintiff filed for divorce on October 17, 2016. Therefore, she is entitled to (2) months and two (2) weeks of child support adding to $3,071.30. The calculations are as follows:
Calculations are as follows: defendant- $86,722.87 [income] / $117,013.81 [combined income] = .7411. .7411 x 100 = 74.11%. Plaintiff- $30,290.94 [income] / $117,013.81 = .2589. .2589 x 100 = 25.89%.
$14,742.22 [annual obligation]/12 [months] = $1,228.52 [monthly obligation]
$1,228.52 [monthly obligation] x 2 [months in 2016] = $2,457.04
$1,228.52 [monthly obligation] / 4 [weeks per month] = $307.13 [weekly obligation]
$307.13 [weekly obligation] x 2 [weeks] = $614.26
$2,457.04 + $614.26 = $3,071.30
2017- 2018
Defendant's income for 2017 totals to $135,683.07. Defendant lists the following on his 2017 federal tax return: New York City local tax of $4,522.97 and FICA taxes of $9,265.30. As such, the Court will deduct those payments from his income as follows: $135,683.07 less $13,788.27 = $121,894.80. Under the controlling statutory scheme at the date of commencement of this action and the applicable case law, the payor spouse is entitled to a deduction for an award of maintenance from his income for the purposes of calculating child support (see generally Lee v. Lee , 18 AD3d 508, 795 NYS2d 283 [2d Dept.,2005] ). As such, the defendant's income for the purposes of calculating child support is $104,405.66. [$121,894.80 - $17,489.14 [annual award of maintenance to plaintiff in 2017] = $104,405.66].
Defendant lists $121,115.07 from one employer, and other income $14,568 from an employer of a different name.
Plaintiff's total income in 2017 was listed as $30,536.15. The plaintiff lists the following on her 2017 tax return: New York City local tax of $640.85 and FICA taxes of $2,336.03. As such, the Court will deduct those payments from her income as follows: $30,536.15 less $2,976.88 = $27,559.27. The Court is required to add the maintenance she is to receive to her income in 2017. Therefore, plaintiff's wages in 2017 are calculated to be $45,048.41 [$27,559.27 + $17,489.14]. The combined parental income is $149,454.07. [$104,405.66 + $45,048.41 = $149,454.07].
The Court next multiplies the combined parental income figure up to an initial statutory cap 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 NY3d at 11, 781 N.Y.S.2d 458, 814 N.E.2d 765, supra, quoting DRL 240[1—b][b][3] ; [c][2] ). The current Combined Parental Income Cap under the CSSA is $148,000.00. Here, the combined parental income surpasses the cap, so the Court will use $148,000.00 as combined parental income. The Court declines to order child support herein above the $148,000.00 cap because the plaintiff has failed to meet the burden to show why the Court should exceed the cap. (See Cassano v. Cassano , 85 NY2d 649 [1995] ; DRL§ 236[6][e][1] ).
In accordance with the CSSA, 17% (for one child) of the combined parental income will be applied to child support. Parental child support obligation is $25,160.00. [$148,000 [statutory cap] x .17 [applicable child support percentage] = $25,160.00.] Based on the parties' combined parental income, the defendant's pro rata obligation is 69.86% and the plaintiff's pro rata obligation is 30.14%. As such, the basic child support award payable from defendant to plaintiff as and for basic child support in 2017 and 2018 is $17,576.28. [$25,160 x .6986 = $17,576.28]
Calculations are as follows: defendant- $104,405.66 [income] / $148,000 [combined income] = .6986. .6986 x 100 = 69.86%. Plaintiff- $45,048.41 [income] / $148,000 [combined income] = .3014. .3014 x 100 = 30.14%.
January 2019 - July 2019
The defendant shall pay the plaintiff the sum of $1,464.69 monthly [$17,576.28 /12 months per year] as and for child support beginning on January 1 and continuing on the 1st day of each month up to and including July 1, 2019.
August 2019 - September 2019
The defendant shall pay the plaintiff the sum of $1,464.69 monthly [$17,576.28 /12 months per year] as and for child support beginning on August 1, 2019 and continuing on the 1st day of each month up to and including September 1, 2019.
Child Support Commencing October 1, 2019 [when maintenance ends]
Due to the fact that defendant will no longer be paying maintenance to plaintiff, the child support calculations will be different.
The most current documentation regarding annual income information in the record after trial is defendant's income for 2017, which totaled to $135,683.07. Defendant lists the following on his 2017 federal tax return: New York City local tax of $4,522.97 and FICA taxes of $9,265.30. As such, the Court will deduct those payments from his income as follows: $135,683.07 less $13,788.27 = $121,894.83.
Defendant lists $121,115.07 from one employer, and $14,568 from another.
Plaintiff's total income in 2017 was listed as $30,536.15. The plaintiff lists the following on her 2017 tax return: New York City local tax of $640.85 and FICA taxes of $2,336.03. As such, the Court will deduct those payments from her income as follows: $30,536.15 less $2,976.88 = $27,559.27. The combined parental income is $146,539.21. [$121,894.83 + $27,559.27 = $149,454.10]
The Court next multiplies the combined parental income figure up to an initial statutory cap 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 NY3d at 11, 781 N.Y.S.2d 458, 814 N.E.2d 765, supra, quoting DRL 240[1—b][b][3] ; [c][2] ). The current Combined Parental Income Cap under the CSSA is $148,000.00. Here, the combined parental income surpasses the cap, so the Court will use $148,000.00 as combined parental income.
In accordance with the CSSA, 17% (for one child) of the combined parental income will be applied to child support. Parental child support obligation is $25,160.00. [$148,000 [statutory cap] x .17 [applicable child support percentage] = $25,160.00.] Based on the parties' combined parental income, the defendant's pro rata obligation is 81.56% and the plaintiff's pro rata obligation is 18.44%. As such, the basic child support award payable from defendant to plaintiff as and for basic child support in 2017 is $20,520.50 [$25,160 x .8156 = $20,520.50]
Calculations are as follows: defendant- $121,894.80 [income] / $148,000 [combined income] = .8156. .8156 x 100 = 81.56%. Plaintiff- $27,559.27 [income] / $148,000 [combined income] = .1844. .1844 x 100 = 18.44%.
Upon the cessation of maintenance, defendant shall pay the plaintiff in the sum of $1,710.04 monthly [$20,520.50 /12 months per year] as and for child support continuing on the 1st day of each month thereafter until the child is 21 years of age or sooner emancipated. Payment of the monthly child support shall be made through Support Collection Unit (SCU). The plaintiff shall serve a copy of the Judgment of Divorce on the SCU.
The parties shall be pro rata financially responsible for statutory add-ons, including extracurricular activities and unreimbursed medical expenses, as follows: plaintiff, 18.44%; defendant, 81.56%.
The above calculations are charted below:
CHARTED CALCULATIONS
[Editor's Note: The preceding image contains the reference for footnote ].
As stated above, the most recent tax returns submitted to the Court are from 2017, so the Court will use those numbers in order to calculate 2018-19 arrears and present obligations. According to pay stubs from 2018, defendant's gross income in the year 2018 is $78,230.70 as of July 27, 2018. Defendant's monthly obligation for final maintenance terminates October 1, 2019.
Retroactivity
The Court notes that an award of maintenance and child support is effective as of the date of first application, which is October 17, 2016 . (See Domestic Relations Law § 236 [B][6][a] ; see also Elimelech v. Elimelech , 58 AD3d 672, 874 N.Y.S.2d 490 [2d Dept., 2009] ; Evans v. Evans , 57 AD3d 718, 870 N.Y.S.2d 394 [2d Dept., 2008] ). "Courts have continuing jurisdiction to modify or vacate support orders until they are completely satisfied, except that they have no discretion to reduce or cancel arrears of child support which accrue before an application for downward modification of the child support obligation" ( Dembitzer v. Rindenow , 35 AD3d 791, 828 N.Y.S.2d 139 [2d Dept., 2006] [quoting Hasegawa v. Hasagawa , 290 AD2d 488, 490, 736 N.Y.S.2d 398 [2 Dept., 2002] ; see Matter of Dox v. Tynon , 90 NY2d 166, 659 N.Y.S.2d 231, 681 N.E.2d 398 [1997] ; Matter of Jenkins v. McKinney , 21 AD3d 558, 799 N.Y.S.2d 904 [2 Dept., 2005] ; Matter of Miller v. Miller , 308 AD2d 541, 764 N.Y.S.2d 850 [2 Dept., 2003] ; Howfield v. Howfield , 250 AD2d 573, 574, 671 N.Y.S.2d 988 [2 Dept., 1998] ; Domestic Relations Law section 236[B][9][b] ).
The Court again takes note of the October 12, 2016 Family Court petition that was consolidated into this instant action.
Here, since there was an Order of Consolidation filed in this Court on February 14, 2018, the retroactive award is calculated from the date of the plaintiff's first application, which was October 17, 2016. The defendant's combined maintenance and child support obligation to the plaintiff is $1,710.04 monthly as ordered herein above. At the time of trial, plaintiff conceded that she received a total of $6,489.89 from defendant's employer in enforcement of the order. Defendant shall be entitled to a credit for any maintenance or child support payments made directly to the plaintiff pursuant to court order by negotiable instrument. Therefore, defendant shall receive a credit of $6,489.89 in calculations of retroactive arrears. The Court will also subtract money judgment of $4,541.58 when calculating retroactive arrears.
Arrear Calculations
[Editor's Note: The preceding image contains the reference for footnote ].
Money judgement dated May 18, 2018 for a total of $4,541.58 together with statutory interest.
Defendant will be responsible for paying $250.00 of retroactive arrears along with his maintenance and/or child support obligation each month until all arrears are paid.
Custody and Visitation
There is no previous order regarding custody or visitation. Plaintiff prefers to maintain visitation as parties have mutually agreed. Plaintiff believes it is in the best interest of the child that defendant resume his routine and have regular access to his son. The Court will include a provision in the judgment for a party to make an application for visitation, since defendant is not asking for custody or visitation at this time, claiming he needs to consult with his legal staff on issues regarding custody and has not requested to see the child.
The record supports the position that defendant does not wish to be granted custody of or formal visitation with the subject child. Therefore, at this time, this Court grants custody of subject child to plaintiff.
Health Insurance Coverage
Plaintiff testified that she has enrolled the subject child in health insurance coverage, beginning on August 1, 2018. Plaintiff pays $9 a month for subject child.
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 Court will calculate costs of the child's monthly health insurance coverage between the parties on a pro rata basis. This includes any deductibles or medical bills incurred. Domestic Relations Law 240[1a][d] states:
"The cost of providing health insurance benefits or benefits under the state's child health insurance plan or the medical assistance program, pursuant to paragraph (c) of this subdivision, shall be deemed cash medical support, and the court shall determine the obligation of either or both parents to contribute to the cost thereof pursuant to subparagraph five of paragraph (c) of subdivision one-b of this section."
DRL 240 [1-b][5] further details that "the court shall determine the parties' obligation to provide health insurance benefits pursuant to this section and to pay cash medical support as provided under this subparagraph."
The Court will use the parties' 2017 tax returns because they are the most recent completed tax returns provided.
Defendant Total Income $135,683.07
Plaintiff Total Income $30,536.15
Total Income $166,219.22
Defendant Pro Rata Share 82% [$135,683.07/$166,219.22 = .816 x 100 = 81.6]
Plaintiff Pro Rata Share 18% [$30,536.15/$166,219.22 = .183 x 100 = 18.3]
$9 [monthly coverage] x .82 [defendant pro rata share] = $7.38 monthly
$9 [monthly coverage] x .18 [plaintiff pro rata share] = $1.62 monthly
Defendant's total income in 2017 was reported at $135,683.07. Plaintiff's income in 2017 was reported at $30,536.15. Defendant's pro rata share of the total of the two incomes is 82% [$135,683.07/$166,219.22 = .816 x 100 = 81.6] while plaintiff's pro rata share of the total incomes is 18%. [$30,536.15/$166,219.22 = .183 x 100 = 18.3] The subject child's health insurance is $9 monthly. 82% of $9 is $7.38 and 18% of $9 is $1.62 . Therefore, according to the Court's pro rata calculations, plaintiff will pay $1.62 per month, and defendant will pay $7.38 per month towards the subject child's heath insurance.
$9 [monthly coverage] x .82 [defendant pro rata share] = $7.38
$9 [monthly coverage] x .18 [plaintiff pro rata share] = $1.62
The Court calculated the parties' pro rata share using the parties' 2017 tax returns. Information submitted regarding the full income of both parties in 2018 was incomplete therefore the Court is unable to make a wholly accurate calculation.
Health Insurance Arrear Calculations
The calculations are as follows: $7.38 [defendant's share per month] x 12 [months of arrears as of July 1, 2019] = $88.56. As of August 1, 2019, defendant owes plaintiff $88.56 to cover his pro rata share of the subject child's health insurance.
Counsel Fees
Plaintiff made an application for payment of counsel fees. Domestic Relations Law 237(a), states that:
"There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite , so as to enable adequate representation from the commencement of the proceeding."
The purpose of a court granting an award of counsel fees to one party in a matrimonial action has been said to be as follows:
"The intent of the provision 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 AD2d 41, 756 N.Y.S.2d 14 [1st Dept., 2003], quoting Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, DRL C237:1, at 6, citing O'Shea v. O'Shea , 93 NY2d 187, 689 N.Y.S.2d 8 [1999] ; see also DiBlasi v. DiBlasi , 48 AD3d 403, 852 N.Y.S.2d 195 [2 Dept.,2008] ).
It is well-established that " ‘[i]n a matrimonial action, an award of attorney's fees or an expert fee is a matter committed to the sound discretion of the trial court’ " ( Montoya v. Montoya , 143 AD3d 865, 865, 40 NYS3d 151 [2d Dept.,2016] citing Vitale v. Vitale , 112 AD3d 614, 614-615, 977 N.Y.S.2d 258 ).
"In determining whether to award final counsel fees at the end of trial, a more detailed inquiry is warranted" ( Duval v. Duval , 144 AD3d 739, 743, 40 N.Y.S.3d 535 [2d Dept.,2016] ). During this more detailed inquiry the New York State Court of Appeals has ruled that the Court must "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" (See DeCabrera v. Cabrera-Rosete , 70 NY2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168 [1987] ; see also Johnson v. Chapin , 12 NY3d 461, 909 N.E.2d 66 [2009] ; see e.g. see also Badawi v. Alesawy , 135 AD3d 793, 795, 24 NYS3d 354 [2d Dept.,2016] ; Levy v. Levy , 4 AD3d 398, 771 N.Y.S.2d 386, [2d Dept., 2004], citing DRL 237[a], [d] ; see also Kearns v. Kearns , 270 AD2d 392, 393, 704 N.Y.S.2d 627 [2d Dept., 2000], appeal denied 95 NY2d 760 [2000].
In Duval v. Duval , the Appellate Division, Second Department held that when making a final award of counsel fees "the court is in the best position to determine whether counsel fees should be charged to the moneyed [sic ] spouse, or charged to the less moneyed [sic ] spouse as an offset against the equitable distribution award ultimately received, or divided between the parties" ( 144 AD3d 739, 743, 40 NYS3d 535 [2d Dept.,2016] ).
Additionally, it is well-established that the Court may also take into account "...whether either party has engaged in conduct or has taken positions resulting in a delay of the proceedings or unnecessary litigation." ( Prichep v. Prichep , 52 AD3d 61, 65 [2d Dept 2008] ; see also Black v. Black , 140 AD3d 816, 33 NYS 3d 379 [2d Dept.,2016] ; Vitale v. Vitale , 112 AD3d 614, 615 [2d Dept 2013] ).
Unlike a pendente lite award of counsel fees, a final order of counsel fees "[i]n the absence of ...a stipulation, an evidentiary hearing is required so that the court may test the claims" of the attorney seeking counsel fees regarding the extent and value of the services rendered ( Kelly v. Kelly , 223 AD2d 625, 636 N.Y.S.2d 840 [2d Dept., 1996] ; see also Pfluger v. Pfluger , 35 AD3d 828, 828 N.Y.S.2d 118 [2d Dept.,2006] ; Nee v. Nee , 240 AD2d 478, 479, 658 N.Y.S.2d 440 [2d Dept., 1997] ; Burns v. Burns , 193 AD2d 1104, 1105, 598 N.Y.S.2d 888 [4 Dept., 1993] ; see also Marocco v. Marocco , 53 AD2d 707, 708, 383 N.Y.S.2d 939 [2d Dept., 1976] ; Woessner v. Woessner , 108 AD2d 812, 813, 485 N.Y.S.2d 325 [2d Dept., 1985] ). Counsel testified credibly as to the hours of work performed and the diligent efforts required to obtain defendant's true income. The testimony is wholly supported by the documentary evidence.
However, when the actions of one party are so clearly "obstructionistic," it may preclude the need for an evidentiary hearing. (See Bongannam v. Bogannam , 60 AD3d 985, 987 [2d Dept., 2009] citing Schwartz v. Schwartz , 54 AD3d 400, 403 [2d Dept., 2008], Messinger v. Messinger , 24 AD3d 631, 632 [2d Dept., 2008], Mancuso v. Mancuso , 178 AD2d 584 [2d Dept., 1991], Messinger v. Messinger 24 AD3d 631, 632 [2d Dept., 2005] citing Bengard v. Bengard , 5 AD3d 340, 341 [2d Dept., 2004] ; Roshevsky v. Roshevsky , 267 AD2d 293, 294 [2d Dept., 1999] ; Matter of Zirkind v. Zirkind , 218 AD2d 745, 746 [2d Dept., 1995] ; Rosenberg v. Rosenberg , 155 AD2d 428 [2d Dept., 1989], Theroux v. Theroux , 112 AD2d 288 [2d Dept., 1985] citing Stern v. Stern , 67 A.D. 253, 256 [1st Dept., 1979]) Also, it is well established that a party's failure to raise an objection or request a hearing on the issue can result in a waiver of the right to such hearing. (See Adinolfi v. Adinolfi , 168 AD2d 401, 402 [2d Dept., 1990] citing Rosenberg v. Rosenberg , 155 AD2d 248 [2d Dept., 1989]; Scheer v. Scheer , 139 AD2d 502 [2d Dept., 1988] ; Lynch v. Lynch , 97 AD2d 814 [2d Dept., 1983], see also DeJesus v. DeJesus , 264 AD2d 436, 437 [2d Dept., 1999] citing Matter of Zirkind v. Zirkind , 218 AD2d 745, 746 [2d Dept., 1995] ; Rosenberg v. Rosenberg , 155 AD2d 428 [2d Dept., 1989].) When the evidence establishes that a party is clearly in a financially superior position the Court may exercise its discretion in awarding counsel fees without conducting an evidentiary hearing. (See DeJesus v. DeJesus , 264 AD2d 436, 437 [2d Dept., 1999] citing Kennedy v. Kennedy , 128 AD2d 840, 841 [2d Dept., 1987] )
In order to make a proper determination of an award of counsel fees, the Court must find (1) the appropriate counsel fee for a party's attorney, and (2) the relative financial circumstances of the parties. Hansen v. Hansen , 86 AD2d 859 [2d Dept., 1982]. This position is reiterated in the recent decision by the Appellate Division, Second Department, Brockner v. Brockner :
"In determining whether to award attorney's fees, the court should review the financial circumstances of both parties, together with all of the other circumstances of the case, including, inter alia, the relative merit of the parties' positions, and whether either party has engaged in conduct or taken positons resulting in a delay of the proceedings or unnecessary ligation. (See Prochilo v. Prochilo , 165 AD3d 1304 ; Chesner v. Chesner , 95 AD3d 1252 ; Prechep v. Prechep , 52 AD3d at 64-65 )." Brockner v. Brockner , No. 2018-06099, slip op. at 1 [2d Dept., July 10, 2019]
However, the Court may consider testimony of counsel regarding reasonable value of services, especially when there is extensive evidence regarding the financial positions of the parties, and such hearing would be reiterative of testimony already given at trial. (See Gleckman v. Kaplan , 215 AD2d 527, 528 [2d Dept., 1995] citing Gutin v. Gutin , 155 AD2d 586, 587 [2d Dept., 1989] ; Price v. Price , 113 AD2d 299, 309 [2d Dept., 1985], McNenney v. McNenney , 159 AD2d 440, 441 [2d Dept., 1990] ; Dawson v. Dawson , 152 AD2d 717, 721 [2d Dept., 1989].)
Proper documentation should be provided to the Court regarding the legal services rendered and/or time spent by counsel in order for it to determine an adequate award of counsel fees. (See Scavuzzo v. Scavuzzo , 201 AD2d 638 [2d Dept., 1994] ). Plaintiff's counsel has submitted into evidence adequate documentation of services rendered.
According to 22 NYCRR 1400.2, attorneys practicing Domestic Relations Law are required to provide their clients with itemized bills for their services every sixty (60) days as set forth in the Statement of Clients Rights and Responsibilities. Attorneys must also supply clients with a written retainer agreement which includes a provision requiring attorneys to bill client at least every sixty (60) days ( 22 NYCRR 1400.3 ). Attorneys who fail to substantially comply with 22 NYCRR 1400.2 and 22 NYCRR 1400.3 are precluded from recovering legal fees from the opposition party (see Montoya v. Montoya , 143 AD3d 865, 865, 40 NYS3d 151 [2d Dept.,2016] ; also Rosado v. Rosado , 100 AD3d 856, 995 N.Y.S.2d 119 [2d Dept.,2012]). "The court rules imposing certain requirements upon attorneys who represent clients in domestic relations matters (see 22 NYCRR part 1400) were designed to address abuses in the practice of matrimonial law and to protect the public" (Rosado v. Rosado , 100 AD3d 856, 995 NYS2d 119 [2d Dept.,2012] citing Hovanec v. Hovanec , 79 AD3d 816, 817, 912 N.Y.S.2d 442 [2d Dept.,2010]. However, when a client does not receive a bill every sixty (60) days but does not object to the timeliness of the invoice the client is assumed to have waived such right (see Rivacoba v. Aceves , 110 AD3d 495, 973 N.Y.S.2d 585 [1st Dept.,2013] ). Furthermore, "[i]t is the right of the client, not the adversary spouse, to be billed at least every 60 days, and the client may waive that right" ( id at 495, citing Petosa v. Petosa , 56 AD3d 1296, 1298, 870 N.Y.S.2d 178 [4 Dept.,2008] ).
Plaintiff entered into a retainer agreement with counsel for the amount of $2,800. Plaintiff's Counsel, Rena C. Dawson, then testified in the narrative regarding counsel fees. Bills were put into evidence regarding the retainer agreement and payment plan. Plaintiff's counsel testified that fees were around $15,050. Plaintiff has paid $1,070.57 towards her $2,800 retainer agreement as of January 2, 2018. Plaintiff's counsel testified that her hourly rate is $350 per hour. Plaintiff's counsel attached an itemized list of costs leading up to trial, totaling $15,050. Plaintiff's counsel testified that she would like to add an additional $2,800 for preparation of summation (8 hours at the rate of $350 an hour). Plaintiff is also requesting reimbursement for litigation fees in the amount of $724.26. However, such costs were not specifically testified to under oath, therefore, the Court is unable to award these extra costs.
In this case, it is clear that there is a disparity in income between the two parties. Plaintiff has reported making $30,536 in 2017, while, combining all of defendant's incomes, he reported making $135,683.07. The defendant is undoubtably the monied spouse.
Although this marriage was of short duration, it is clear that defendant was the primary source of income. In Denholz v. Denholz , a case where the marriage was of "short duration," the Court found that there was a "marked disparity between the income and resources of the respective parties" and "paying her own counsel fees would significantly deplete the [wife's] meager resources" and awarded the wife "reasonable counsel fees." ( Denholz v. Denholz , 147 AD2d 522, 525, 537 NYS2d 607 [2d Dept., 1989] ). Plaintiff has had to file multiple motions and attempt service multiple times in order to attempt to get defendant to comply with court orders. When served with an Income Execution, defendant attempted to run away from the process server.
Plaintiff has had to endure multiple adjourn dates because of defendant's failure to cooperate which have in turn caused her to incur more and more counsel fees in pursuit of a divorce.
The defendant's misrepresentations, failure to cooperate in the judicial process, and the delays he has caused is a basis to award plaintiff counsel fees. The amount of time plaintiff has devoted to ascertaining defendant's true income and the clear falsity of his initial claims must also be considered. Defendant is clearly in a financially superior position. Plaintiff's counsel also testified about an additional two (2) hours for a preliminary conference on June 1, 2017 which was adjourned, three (3) hours for trial on January 23, 2019, and four (4) hours for trial on December 21, 2018, each at $350 an hour, for a total of $3,150.
Plaintiff is awarded $15,050 toward counsel fees based on information submitted into evidence, and an additional $3,150 for counsel court appearances which were testified to on the record, for a total of $18,200. Defendant is hereby ordered to pay this award of counsel fees directly to plaintiff's counsel within one hundred and twenty (120) days of service of notice of entry of the judgment of divorce. If defendant fails to do so plaintiff's counsel may enter a money judgment, together with statutory costs and interest from the date of default, of any unpaid sum with the Office of the County Clerk upon ten (10) days notice to defendant by certified and regular mail of an affirmation of non-compliance with no need to seek further Court intervention. This amount is fair and reasonable especially given the recalcitrant nature of the defendant and the amount of professional services plaintiff's counsel performed responsive and necessitated by defendant's obfuscating tactics toward the litigation process.
Transcript Costs
Plaintiff's counsel asked the Court to direct the defendant to pay for the cost of purchase of the trial transcripts. In summation, plaintiff's counsel provided proof of payment for a total of $816.20 and is thereby awarded such amount.
It would be impossible to know the total sum of transcript fees until the proceeding was concluded and, as such, it was not a failure of proof at trial where plaintiff clearly requested that the Court award her said fees and proof of payment was provided, on notice to defendant, in the summation when the transcript fee total was available.
Total Owed by Defendant
[Editor's Note: The preceding image contains the reference for footnote ].
Less any payments made along with proof of payment.
Conclusion
Judgment of divorce is granted to the plaintiff on the grounds of irretrievable breakdown DRL § 170(7). It is well established that there is no defense to a divorce on grounds of irretrievable breakdown. A "statement under oath that the marriage was irretrievably broken for a period of six months [is] sufficient to establish [a] cause of action as a matter of law." Motta v. Motta , 145 AD3d 560, 561 [1st Dept., 2016] citing Hoffer—Adou v. Adou , 121 AD3d 618, 619, 997 N.Y.S.2d 7 [1st Dept.2014] ). "[An] opposing spouse in a no-fault divorce action pursuant to Domestic Relations Law § 170(7) is not entitled to litigate the other spouse's sworn statement that the relationship has broken down irretrievably for a period of at least six months" Trbovich v. Trbovich , 122 AD3d 1381, 1382 [4th Dept., 2014] citing Palermo v. Palermo , 35 Misc 3d 1211[A], 100 AD3d 1453 [4th Dept., 2012], Rinzler v. Rinzler , 97 AD3d 215, 218 [3d Dept., 2012], A.C. v. D.R. , 32 Misc 3d 293, 306, 927 N.Y.S.2d 496. Plaintiff has testified that the marital relationship of her and defendant irretrievably broke down April 29, 2016. Defendant did not proceed on grounds of abandonment, which at this juncture would have been a waste of judicial resources. All ancillary issues herein are resolved. Both parties may resume the use of their prior surname if they so choose. Settle findings of fact and conclusions of law and a judgment of divorce together with a copy of this decision and a copy of the minutes of the allocution on grounds within sixty (60) days.
This constitutes the decision and order of the Court.