Opinion
3388/2018
04-11-2019
R.M., Plaintiff, v. A.M., Defendant.
Sophia Trott, Esq., Attorney for the Plaintiff, 9 West Prospect Avenue, Mount Vernon, NY 10550 Jayson Lutzky, Esq., Attorney for the Defendant, 1740 Hone Avenue, Bronx, NY 10461
Sophia Trott, Esq., Attorney for the Plaintiff, 9 West Prospect Avenue, Mount Vernon, NY 10550
Jayson Lutzky, Esq., Attorney for the Defendant, 1740 Hone Avenue, Bronx, NY 10461
Llinet M. Rosado, J.
A trial was held on January 9, 2019. The parties were the only witnesses to testify at trial. Their respective sworn statements of net worth were placed into evidence by both parties. After a careful and thorough review of the testimony, and the exhibits moved into evidence, the Court makes the following Findings of Fact and Conclusions of Law.
The parties were married in a civil ceremony, in the State of New York, Sullivan County in the village of Monticello on May 16, 2008. There are two children of the marriage: R.A.M. (DOB 12/8/09); and R.A.M.(DOB 4/20/12). The parties testified to different dates of separation; plaintiff testified the parties separated on or about April of 2016, and defendant testified that the parties separated in September of 2015. The children reside with defendant mother. Plaintiff pays biweekly child support to the defendant in the amount of $ 314.94, pursuant to the order of the Family Court.
Pursuant to their stipulation, so-ordered by this court on October 22, 2018, the parties agreed that: i) the defendant will have physical custody of the minor children, subject to plaintiff's visitation/ access, in accordance with the Family Court order, dated August 5, 2016; and ii) the parties' pensions are to be distributed per Majauskas. The remaining issues for trial were plaintiff's application for spousal support, and counsel fees, and defendant's application for an increase in child support.
Based on their respective net worth statements, and supporting documentation, plaintiff is employed as a security guard by Northwell Health, Inc.; in addition, plaintiff is an independent contractor, engaged as an interpreter for the New York State Unified Court System. Plaintiff's annual adjusted gross income is $ 38,304.00. The defendant is employed as a registered nurse by New York City Health and Hospitals, and the Rebekah Rehab Center. Defendant's adjusted gross income is $ 125,139.00.
MAINTENANCE
The purpose of the amount and duration of maintenance is to give the less monied spouse economic independence. Plaintiff, the non custodial parent of the parties' children, seeks an award of maintenance for a period of four years. DRL 236 Part B (6)(c)(2).
Plaintiff's net annual income is $ 25,525.56 for the purpose of calculating post divorce maintenance. Defendant's net annual income is $ 116,137.29. Since plaintiff is the non custodial parent, maintenance is calculated as follows: 30% of defendant payor's income, minus 20% of plaintiff payees' income. Accordingly, since 30% of defendant's income is $ 38,841.19, and 20% of plaintiff's income is $ 5,105.11, the annual guideline award amount is $ 29,736.07.
Pursuant to DRL 236 Part B (6)(e), the court must order the post-divorce maintenance guideline obligation, unless the court finds that the guideline is unjust or inappropriate after consideration of the following factors:
1. The age and health of the parties: Both plaintiff and defendant are 37 years old, and in good health.
2. The present or future earning capacity of the parties including a history of limited participation in the workforce: During the marriage, both parties worked outside the home. Plaintiff has been employed as a security guard, and a court interpreter; the defendant has been employed as a nurse. In September 2015, plaintiff enrolled in Bronx Community College; upon graduation, he intends to seek employment related to immigration with the federal or state government. Both parties have the abilities and means to be self supporting.
3. The need of one party to incur education or training expense: none
4. the termination of a child support award before the termination of the maintenance award when the calculation for maintenance was based on child support being awarded which resulted in a maintenance award lower than if would have been had child support not been awarded: not applicable
5. The wasteful dissipation of marital property: none
6. The existence and duration of a premarital joint household or a pre-divorce separate household: the parties have lived separate and apart since at least from April of 2016, and at most from September of 2015.
7. Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity: none
8. The availability and cost of medical insurance for the parties: plaintiff has his own medical insurance; the defendant provides medical insurance for herself and the parties' children.
9. The care for children provided during the marriage that inhibited a party's earning capacity: not applicable.
10. Tax consequences to each party: none
11. the standard of living of the parties established during the marriage: the parties were both salaried wage earners during the marriage, shared household expenses, and enjoyed a reasonable standard of living.
12. the reduced or lost earning capacity of a payee as a result of having foregone or delayed education, training employment or career opportunities during the marriage: none
13. The equitable distribution of marital property and the income or imputed income on assets so distributed: the only asset of the marriage consists of the parties' pensions, which are to be distributed per Majauskas.
14. 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: the household expenses were maintained equally by both parties, as were their household duties.
15. Any other factor which the Court shall expressly find to be just and proper: Prior to the commencement of this action on February 3, 2018, the parties independently maintained separate households for approximately two years. Furthermore, plaintiff made no demand for ancillary relief of spousal maintenance in his verified complaint, stating neither the wife nor the husband needs maintenance.
At trial, however, plaintiff sought financial assistance, to wit, maintenance from the court. Plaintiff's claimed reasonable monthly expenses, as demonstrated in his statement of net worth, are as follows: $ 400.00 rent; $ 100.00 telephone; $ 300.00 food; $ 100.00 clothing; $ 200.00 insurance; $ 721.00 automotive; and education $ 16.66, totaling $ 1,837.66. Since plaintiff's net annual income, after deducting court ordered child support is $ 25,525.56, and his reasonable annual expenses are $ 22,051.92, plaintiff has sufficient income to cover his reasonable expenses. Further maintenance is not warranted.
CHILD SUPPORT
Defendant, by her verified answer, requested that the existing order of support, dated September 14, 2017, remain in full force and effect. However, at trial, defendant sought an increase in child support.
The court may modify a child support order based on a substantial change in circumstances, where three years have elapsed since the order was entered, or when there has been an involuntary change in either party's gross income by 15% or more since the order was entered. The party seeking modification of the order has the burden of establishing the existence of a substantial change in circumstances. DRL 236 (B)(9)(b)(2)(I). Since defendant failed to produce any evidence in support of her claim, modification is not warranted.
COUNSEL FEES
Pursuant to DRL§ 237, in an action for divorce the Court may direct either spouse to pay counsel fees directly to the attorney of the other spouse to enable the other party to carry on or defend the action. There is a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. "A court should review the financial circumstances of both parties together with all the other circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties positions." DeCabrera v. Cabrera-Rosete , 70 NY2d 879 (Ct. App 1987).
Plaintiff failed to present any evidence of services rendered in support of their claim for counsel fees. Accordingly, their application for counsel fees is denied.
Plaintiff shall settle the Findings of Fact, Conclusions of Law, and Judgment in accordance with this Decision and Order within 30 days of its' service upon defendant's counsel with notice of entry. Any proposed counter judgement shall be submitted in accordance with 22 NYCRR§ 202.48(c)(2).