Opinion
20726/02.
Decided April 12, 2006.
Barry Elisofon, Esq., Brooklyn, NY, Attorney for Plaintiff.
The Legal Aid Society, By: Emily Ruben, Esq., Brooklyn, NY, Attorney for Defendant.
Procedural Background
The instant matter was tried over a six (6) day period before the undersigned. An initial trial in this matter was commenced on October 4, 2004, when the wife was represented by private counsel. That counsel moved to withdraw after a dispute arose between counsel and the wife, and the court granted that application. The trial was halted and the wife was given a new opportunity to obtain counsel. After numerous adjournments, the wife proceeded to trial pro se. During the course of the trial it became apparent to the court that notwithstanding the utilization of an excellent court-employed Spanish interpreter, the wife who alleged to be a domestic violence victim and an illegal immigrant, did not understand the nature of the proceeding. Her lack of understanding was not only due to her inability to read and understand English and thereby the documents which were presented into evidence, but she also lacked a basic capacity to understand the complex nature of the litigation process; for example, when complex words were translated, the wife did not understand their meaning. This also happened on occasion with every day words. Thereafter, the court, upon consent of the husband's counsel, contacted the Legal Aid Society, Brooklyn Division, to seek their assistance on behalf of the wife. After a period of preparation and retention, the Legal Aid Society, Brooklyn Division, by Emily Ruben, Esq., appeared on behalf of the wife. A mistrial was granted as to economic issues, however, the issue of grounds for divorce was resolved during the first trial and the wife's new counsel consented to the entry of judgment of divorce based upon the testimony of October 4, 2004. The wife successfully testified that she is entitled to a divorce against the husband on the grounds of actual abandonment. The husband has been represented by private counsel throughout this litigation.
Facts
Plaintiff commenced the action on May 21, 2002. The parties were married on January 24, 1992, in Brooklyn, New York. The husband is 37 years of age and the wife is 46 years of age. The parties have two (2) children, a son born on March 31, 1988, and a daughter born on September 27, 1995. The husband is a business and property owner. The wife is a homemaker and factory worker.
The parties were born in the Country of Ecuador and knew each other in Ecuador prior to coming to the United States. The wife was previously married to the husband's cousin who subsequently died. It is undisputed that the husband also knew the wife's two (2) brothers who were the subject of testimony in the instant matter, to wit: Luis Palaguachi and Manual Palaguachi.
When the wife emigrated to the United States in 1987, she did so without permission to permanently reside in the United States and was in the company of her now deceased husband. It appears that the husband and wife herein and the wife's husband at that time, moved into a two-bedroom apartment which was also occupied by other individuals from Ecuador.
The husband claims that he has a partial grade school education from Ecuador. He first worked as a restaurant dish washer and delivery person. Eventually, he learned to cook and drive an automobile. The husband asserts that although his income was not substantial, his expenses were minimal. For example, his share of the rent at that time was $120 a month. It is undisputed that the wife is presently a recipient of public assistance on behalf of the two (2) children of this marriage.
The wife asserts that she does not speak or write English but her husband is well versed in English notwithstanding the fact that he used an interpreter during the trial. This court notes that in court appearances prior to the trial there was never a Spanish interpreter requested for the husband and, in fact, during the course of the trial the husband often answered questions in English before the translation began.
The parties have been separated since May 2001 when the Family Court issued a temporary order of protection ordering the husband to stay away from the wife, children and the marital residence. The wife asserts that she was the victim of severe domestic violence. However, the husband postures that the trial testimony of the wife's daughter from another relationship reveals that the domestic violence which was imposed upon her mother was not as severe as the wife would like the court to believe. The husband asserts that he was good provider for the wife. Despite this contention, the domestic violence that was imposed upon the wife resulted in a Criminal Court order of protection, after a violation of an underlying order of protection.
The wife argues that this finding, together with the husband's purposeful lack of obtaining a green card on the wife's behalf while securing a green card for himself and the wife's daughter, would warrant this court entering a finding of egregious conduct.
The husband testified that he and his wife are in good health however the wife asserts that her health is poor. She is seven (7) years older than her husband and claims she suffers with constant headaches, memory loss and is fearful of leaving her apartment alone; all of which she believes are a result of the domestic violence she endured. The wife does not refute the claim the husband is in good health. The husband argues that the wife's health claims are specious particularly in light of the fact that she is able to work in a factory and in the wife's sister's restaurant.
A Family Court order of child support was issued through the Family Court Child Enforcement Unit on June 20, 2002, directing the husband to pay $40 each week as and for child support.
The IssuesCustody and Visitation
The husband concedes that the children should reside with the mother but requests visitation with them pursuant to a schedule to be established by the court. The mother takes the position that the father rarely sees the children and does not make arrangements to visit with them. There was no request for either a law guardian or a forensic evaluation, nor did it appear that it was necessary, and the husband's testimony concerning the request for visitation seems specious at best.
Maintenance
It is the husband's position that he applied for a green card for himself and the wife. The husband was issued a green card in 1996 and granted permanent citizenship in the United States in 2005. He claims that the status of the wife's application is still pending or unknown. The husband admitted that in 1996 he brought the wife's daughter, Gloria, to the United States to reside with the parties and their two (2) children in a Brooklyn rental apartment.
It is the husband's contention that the wife admitted she did piece work sewing before and during the course of the marriage until 1998. The husband contends that the wife's average earnings were $150 a week in 1996. However, there were periods of time for two (2) to (3) months where the wife did not work. Only one (1) income tax return was filed by the wife during this period of time.
The husband contends that although he rarely stayed at the marital residence after 1997 when marital discord was apparent, he continued to pay the rent and utilities and provide money to the wife for food and clothing for the family. The testimony reveals he eventually returned to the home in an attempt at reconciliation, but to no avail. In 2001, the parties separated on a permanent basis.
The husband disputes the wife's testimony that she has not been gainfully employed since 1998 and survives on public assistance provided for the children in the amount of $216 a month, food stamps in the amount of $268 and support from the husband in the amount of $200 a month. The husband further notes that the testimony indicates the wife pays a monthly rent in the amount of $1,200. Testimony of a witness subpoenaed by the husband, Jamie Landy, leads the husband to posit that the wife works in her brother's restaurant. The husband contends that in addition to the income from her work in the restaurant, the monthly rent is augmented by an undisclosed couple sharing the apartment with the wife and also from money given to the wife by her brother Manuel. At trial, the wife denied that she works for her family but testified that she occasionally helps her sister.
The husband claims that the assertions by the wife that she is a victim of domestic violence and she is so frightened that she cannot leave her home unless accompanied by other persons, simply is not credible. In support of this contention, he cites the testimony of the wife's only witness, her daughter, who said that the husband ". . . was a good person". The daughter testified that one night when the husband was drunk and arguing with the wife he brandished a large kitchen knife. The police were not called because the wife and children were afraid. The daughter testified that this was an unexpected event that had never occurred prior to this incident. Although, the daughter acknowledged other instances of drunkenness and regular screaming arguments.
The husband denies any pattern or history of domestic violence. Rather, he contends any domestic violence was limited. He supports his allegation with the testimony of the wife's own daughter. He posits that the daughter testified that only on one (1) occasion did the daughter see the husband drunk with a knife. The wife locked the husband out of the bedroom and forced him to live on the living room couch. Otherwise, the daughter believed the husband was "a good person".
The husband contends that the wife is untruthful when she testifies about her inability to work. The basis for his contention is that the wife's expenses, for example, the monthly rent, food and clothing for the children, exceed her income of $728 a month from all sources ($260 from public assistance; $268 a month for food stamps and $200 each month from the husband). Therefore, the wife's testimony simply is not credible. Husband posits that there must be undisclosed sources of income. It is the husband's position that the wife collects money from people boarding in her apartment in addition to working in a restaurant.
The husband testified that during the marriage he sent money to the wife's mother in Ecuador so that the wife's mother could purchase agricultural land to help support her. He claims it was the wife who saved this money from the husband's income. In order to credit the husband's testimony, the court must assume, that these monies were saved from the husband's $300 a week income.
The husband claims that when the parties were in Family Court, false tax returns were submitted which lead to a consent order of $40 each week, payable to the New York State Child Support Enforcement Team. The husband asserts that the wife's attorney in Family Court and the support magistrate did not find the alleged tax returns credible. The husband also asserts that he did not spend large sums on clothing or jewelry for himself or for the children or go on expensive vacations or purchase new cars. He believes there was no credible or competent testimony or evidence that the parties had a high or grand lifestyle in excess of reported earnings.
There is no proof that said order was issued on consent; no transcript was submitted at trial and the order was not an order based on an agreement.
The husband argues that the since the wife has not applied for public assistance, the support that she is currently receiving must be sufficient. Also, the wife has multiple skills as a seamstress and restaurant worker, unlike the husband whose only skills are that of a car driver and dispatcher and that he too has a limited education. Therefore, the wife is not entitled to maintenance. Moreover, the husband posits that since the parties' son is almost 18 years of age and able to take care of himself and the daughter is 10 years of age and is old enough to arrange visitation with the husband alone, that the wife should not have to stay at home and care for this child. Therefore, the husband claims there is no basis for an award of maintenance.
It is the wife's position that the husband is a successful businessman and property owner who has turned away from his severely abused wife and children. The wife contends that Eastern Car Service, the husband's primary source of income, is a business that derives most of its money in the form of cash. Although the husband reports earnings on his tax returns, between $15,000 and $17,000, the wife asserts that a much greater income is generated by Eastern Car Service. The wife contends that the husband's true income is approximately $125,000 from this business alone. In addition to the $125,000 annual earnings from the car service, the wife argues that the husband earned at least $250 each week for a vehicle leased to others in 2003. Additionally, the husband testified that RR United Inc., another company that he has an interest in, was established to obtain insurance for drivers unable to procure insurance on their own. The wife intimates there must be some form of income for this service, yet none is disclosed.
The wife asserts that she is a victim of domestic violence and that the Court must take that into account in deciding both the issue of maintenance and equitable distribution. Specifically, from 1997 to 2001 the husband allegedly forced the wife to have sexual relations with him at least two (2) to three (3) times a month. She testified that, at times, the couple's children were present in the apartment and they heard their mother yelling. The wife testified that the husband would arrive home drunk, grab her by her hair, swing her against the bed and threaten her. She alleged physical violence was imposed upon her when he hit her, pushed her and kicked her, and that he hit her on the head, pushed her up against the bed and other furniture, kicked her in the stomach to the extent that her "bellybutton bled". According to the wife, he hit her head so frequently and violently that she suffers from constant headaches and memory loss. The wife notes an August 6, 2001, a final order of protection, rendered after trial in Family Court, directed the husband stay away from the wife and their children except for court ordered visitation. On December 27, 2001, the wife obtained a final Criminal Court order of protection based upon two (2) violations of the Family Court order. The wife claims that the husband threatened her with a weapon and in 1994 when he arrived home intoxicated with the children in the house, the husband brandished a gun and began saying "bad things" to her. The wife testified that the husband even threatened the children with a gun.
The wife testified to a pattern of violence that was systemic and ongoing. In 1998 or 1999 the husband arrived at home and began drinking from a bottle of liquor in the living room. At this time their daughter was three (3) or four (4) years old. The child hid the bottle of liquor and the husband allegedly went into the kitchen, took out a knife and stabbed the wall, saying to the wife "that's how I'm going to do it to you". The wife testified that the husband said "if you call the police I'm going to do something to you right now so I'll go to jail for something". The wife testified that the children began crying and she and the children left while the husband remained in the apartment. The wife testified she was afraid of calling the police. Again, she stated that her husband repeatedly threatened that if the wife ever called the police he would do something really bad to her so he would have a reason to go to jail. The one (1) time the wife decided to telephone the police she called her niece and ask her niece to make the telephone call since she did not know how to reach the police. It is apparent to the court that fear of calling the police was premised in the husband's expected and threatened reaction to the call and the wife's inability to communicate since she does not speak English.
The wife also testified that on the husband's birthday in 2000 he came home so drunk that when she went to help him from the car into the house, he said to her "I was drinking with a woman and I don't love you anymore". She claims he started hitting her when they entered the house.
The wife alleges that the wife's daughter witnessed daily arguments between the parties and that the husband yelled at the wife and called her names. This daughter testified "she [the wife] [is] not going to be able to do anything never because she's an uneducated person, she doesn't speak English, that she doesn't have friends." Kicking her out sometimes saying "if she [the wife] keeps talking too hard — answer him [the husband] back, he would do something to her, he will break her face or something". This type of argument occurred on a regular basis. On another occasion the husband was drunk and punched the wall in an attempt to gain entry into the wife's bedroom. Since that time, the husband slept in the living room. The wife's daughter testified that the wife would try to defend herself and that the wife was always crying.
The daughter further testified that she was present in the home in 1999 when the husband, again drunk, came home and grabbed a knife from the kitchen, went into the wife's bedroom with a large kitchen knife in hand. The wife apparently was sleeping in the bed with her daughter Maria who was only three (3) or four (4) years old at the time. The witness testified that she, her brother and cousin rushed into the bedroom to protect their mother. Apparently, a cousin screamed "don't hurt nobody, hurt me". The witness and the wife herself both described the wife as depressed, nervous and afraid to go outside alone. Additionally, the wife asserts that she has not received medical attention or psychological counseling because she does not have money to pay for such services.
The wife asserts that she never made more than $150 a week at any given time working as a seamstress and that she stopped doing this kind of work when the local factories closed and she could no longer find piece work. The wife denies that she has any hidden income. She does not work in her family's restaurant, however, her sister does help with rent and other things and in exchange she tries to help her sister. Additionally, testimony was adduced that a couple moved into one (1) of the bedrooms in her apartment to help pay the rent. This occurred after the May 2005 statement of net worth. She also received $1,225 each month from her brother whose 17 year old son is living with the wife. It is the wife's position that she has no marketable skills, suffers from agoraphobia, headaches and depression. As a result of the trauma from the domestic violence the wife was subjected to, she is relegated to collecting bottles on the street as a means to pay for public transportation.
The wife argues that maintenance should be retroactive to October 18, 2002, the date of the wife's verified answer and counterclaim. Further, the husband should be directed to obtain health insurance for the wife and the parties' children. The wife contends that the Family Court order dated June 20, 2002, which found the husband's income was $15,600 should not be utilized as a benchmark. It is the wife's position that the husband's income is in excess of $125,000. The difference in income is based upon the testimony adduced at trial herein. The wife posits that if in fact this court imputes income to the husband greater than that which the Family Court considered, this would certainly qualify as a change in circumstances.
Child Support
The wife asserts that the Family Court award for child support in the amount of $40 each week should be modified based upon a substantial change in circumstance. The wife maintained that the husband possesses substantial earnings and ownership of properties and businesses not disclosed in the Family Court proceeding which warrants a modification in the award of support. The wife claims that the husband's income, in accordance with the June 20, 2002 Family Court order, was only $15,200 a year and that the credible evidence adduced at trial herein supports a finding of support in an amount in excess of $125,000.
The husband counters that the child support should remain at $40 each week pursuant to the order of the Family Court which was entered on consent of the Department of Social Services through the Support Collection Unit because both children receive public assistance, and the court is bound by this order. The husband asserts that this order was predicated upon a tax return with an Internal Revenue Service stamp attached to it which the wife claims she found in the house. It revealed income by the husband of $70,000 a year but it was not truthful. It is the husband who infers throughout the course of testimony that this is a document created by the wife. It is the wife's contention that this is a document she found in the home. The husband further alleges that at the time of the Family Court order it was alleged and accepted that those tax returns were false and that the amount of child support entered into of $40 per week with the consent of the Child Support Enforcement Team was based upon a consent order. The Family Court order was admitted into evidence herein, and this court notes that the order was grounded in findings of fact with no mention of an agreement or consent. Husband did not provide a transcript of the Family Court proceedings to substantiate his position as to what occurred in the Family Court.
The wife asserts that the court should impute income totaling $125,000 based upon the documentary evidence and the credible testimony of the wife. Additionally, it is the contention of the wife that since the children are the recipients of public assistance for almost four (4) years, they have been deprived of the standard of living based upon their father's income.
Equitable Distribution
The husband testified that although he is an owner and president of various businesses and corporations, he has little or no knowledge of these assets. He alleges that his only income is $300 each week which he earns as a dispatcher for Eastern Car Service. Husband testified that this income has been his sole source of income for many years. The wife asserts that the husband is a wealthy businessman and hides behind the wife's brothers whom are his business partners. She believes the husband has a network of assets which, if not subject to equitable distribution in their entirety, should be utilized for the imputation of income. The assets in questions are: (1) a one third (1/3) interest in a mixed use property consisting of nine (9) apartments and four (4) stores located at on 40th Street, Brooklyn, New York [exact street address omitted for publication purposes]; (2) an interest in a car service known as Eastern Car Service located at 222 Fifth Avenue, in Brooklyn, New York, which the tax records show the husband was the president of the corporation for many years; (3) a social club utilized and visited by the Ecuadorian community for social networking which had a liquor license enabling the business to sell alcohol; (4) property owned by the husband in Philadelphia, Pennsylvania; and (5) a residence in the State of New Jersey owned by the husband with his girlfriend, Reyna Gonzalez located at 213 Munn Avenue, Irvington, New Jersey. Additionally, there was testimony about automobiles including the ownership of two (2) Lincoln Town Cars and a KIA automobile. All of these assets were obtained on the husband's alleged steady salary of $300 each week.
Throughout the entire trial the husband asserted that he attempted to subpoena the wife's two (2) brothers with whom the husband has a business relationship. The husband asserts that his brothers'-in-law evaded service of the subpoena and were unwilling to testify. He contends that he was unable to successfully subpoena his business partners, notwithstanding the fact that they accompanied the wife, their sister, to court on numerous occasions. The wife asserts that her brothers and husband, have intentionally failed to cooperate in any discovery or disclosure. The husband's repeated contention that he knows very little about his businesses involving himself and the wife's brothers is not credible. Moreover, the husband failed to call his present girlfriend, Reyna Gonzalez. Ms. Gonzalez is the alleged lease holder of the bar social club, subsequent to the husband. Ms. Gonzalez is also a joint holder in title with the husband to the residence in New Jersey. First, Ms. Gonzalez was unable to testify first due to illness and then at the end of the trial she was out of the country. The wife posits that the failure of the husband and her brothers to cooperate is a collaboration between them because they do not want the wife to have any interest in their properties or businesses. They have, in effect, built a wall around these assets preventing any intrusion by the wife, their sister, which could possibly infringe upon their operation and ownership of the businesses.
Asset: Eastern Car Service
While the wife makes no claim to Eastern Car Service as an asset subject to equitable distribution, a great deal of testimony ensued in the instant action regarding this entity and the income it produces. It is undisputed that in 1988 the husband and the wife's two (2) brothers, Luis Palaguachi and Manuel Palaguachi, and Manuel Sombrano started this company known as Eastern Car Service. In 1990 the company was incorporated and the first federal tax return was filed in 1991. In 1991 the Internal Revenue Service schedule K-1 form itemized the husband as an 84 percent owner, Luis Palaguachi and Manuel Palaguachi each 8 percent owners. However, the ownership interest itemized on the Internal Revenue Service schedule K-1 shifted in 1992. The husband was listed as the 100 percent owner of Eastern Car Service from 1992 through the 2001. After eight (8) years the tax return filed in 2002 listed the husband as 50 percent owner.
The testimony adduced at trial revealed that Eastern Car Service is a business that supplies passenger pick up calls to driver-owners who drive their own vehicles. Eastern does not own or supply any cars of their own, it is a dispatch company. The corporate tax returns revealed both business expenses and income. The tax returns were prepared for Eastern Car Service by Continental Business Services, a neighborhood business tax preparer.
Throughout the course of the trial the husband steadfastly held that he earns $300 a week for years which is approximately $16,000 annual income from Eastern Car Service. It is the husband's position that Eastern Car Service is a pre-marital asset and the wife failed to offer any proof of any appreciation in the value of this asset during the marriage through the commencement of this action in October 2002. Therefore, the husband submits this asset is not subject to equitable distribution.
The wife concedes that Eastern Car Service is a separate asset. Furthermore, there was not testimony regarding appreciation of this asset after the parties' marriage. However, this business was a focus of this trial for the purposes of a determination of the husband's income for the calculation of maintenance child support as well as his credibility.
The wife asserts that the husband is an owner of Eastern Car Service and that Eastern Car Service is not merely a small establishment, rather, it is a major car service company servicing the areas of Park Slope and Sunset Park in Brooklyn, New York. The wife claims that the husband's representation that Eastern Car Service is a small operation limited primarily to Hispanic clientele and serving a limited geographical area, is belied by the record. The Eastern Car Service log dated June 13, 2005, shows pick-ups on Prospect Park West, Eastern Parkway, Washington Avenue, Plaza Street, Terrace Place, Bergen Street, 7th Avenue, 6th Street, Carroll Street, Union Street and even East 4th Street. Clearly the information in this log demonstrates that the car service company spans across a broad geographical area in Brooklyn, New York.
The wife questions the husband's assertion that he earns only $300 each week yet, he saved $30,000 in cash for his contribution towards the down payment on the purchase of a mixed use property located at on 40th Street, Brooklyn, New York. The wife also questions the feasibility of the husband to own and operate a social club, located at 1619 4th Avenue, with a rent for the approximate amount of $3,000 a month at the same time that he alleges he earned $300 each week. Both the purchase of the 40th Street property and the opening of the social club took place in the same year, 1994. The husband was also able to travel to Ecuador and Honduras at this time. The wife posits that the husband has been untruthful and has deceived this court and other courts in claiming that he only earns $300 each week.
In an attempt to determine the husband's income, he was questioned at trial as to whether the Taxi and Limousine Commission (TLC) requires him, as an owner of a car service, to maintain records. He answered "no". This testimony directly contradicts the husband's testimony at his examination before trial. At trial, the husband explained that the rule requiring the retention of records for a six (6) month period has changed and he no longer has to maintain such records. At the request of the wife, the court took judicial notice of the Rules and Regulations of the City of New York for the TLC for hire vehicles which sets out the record keeping requirements. Operation records shall be maintained for a six (6) month period ( see 35 RCNY § 6-08 (d)).
Additionally, the husband testified at his examination before trial that each driver paid Eastern Car Service $60 each week for the use of Eastern Car Service as their base and receiving dispatches. At trial, two (2) years later, the husband claimed that the fee was only $50 each week for a driver. The wife's daughter testified that she recalls the fee was $70 from the time she spent at the car service. The husband contends that the fee increased to $70 when two (2) drivers shared one (1) car. Furthermore, the husband was questioned about the number of drivers working with Eastern Car Service. When attempting to tally the number of call names together with a list of drivers, the husband testified that one (1) driver could have multiple call names. If true, this would reduce the number of drivers and thereby the income collected by Eastern Car Service. On cross examination the husband explained that each driver who drives for Eastern Car Service has their own number. It became clear to the court that the June 13, 2005 log presented demonstrated at least 88 drivers at one (1) time during an approximate eight (8) hour shift. It must be noted that the husband then changed his testimony and stated that some drivers could have more than one (1) number. Again, if true, this would reduce the number of drivers for Eastern Car Service, thereby reducing the income to the business. No explanation was given for this aberration. The wife further questions the husband's testimony regarding the logs at Eastern Car Service. Husband testified that the average number of log pages for a 24 hour period is approximately 20 pages. Pursuant to the Eastern Car Service log dated June 13, 2005, which was obtained in response to a subpoena, only one (1) shift for approximately eight (8) hours on June 13, 2005, created an 18 page dispatching log.
The wife also alleges that the husband's testimony that he has little knowledge or involvement with the business is contradicted by the Internal Revenue Service schedule K-1 of his shareholder's federal tax return. In 1991 the husband was an 84 percent owner of Eastern Car Service. For the period of 1992 through 2001 husband listed his shareholder's percentage of ownership as 100 percent. This action was commenced by the husband in 2002, at which time the husband, without explanation, listed his ownership interest at 50 percent. The husband steadfastly contends he knew nothing about the business, did not review or sign any tax returns and could not explain fluctuations in the gross receipts from $340,000 in 1995 to as low as $56,409 in 1997. In the year 2003 gross receipts were listed as $125,561. At the same time, the husband was listed as the president. The husband claimed that the partners receive their weekly salary of $300 and put any excess monies into the bank to allow for payment of business expenses such as rent. The testimony also revealed that the husband admitted that the drivers make their payments in cash at the end of each week.
The wife argues that this business produces gross income in the amount of $312,000 a year. The wife calculates the actual gross receipts by considering a minimum of 100 drivers paying $60 each week pursuant to the testimony of the husband at the deposition, is equal to $312,000 in gross receipts each year ($60 multiplied by 100 drivers equal $6,000 each week multiplied by 52 weeks in a year equals $312,000). The parties agree that the annual expenses are $62,400 a year which is $5,200 a month which leaves the corporation with $249,600 ($312,000 in gross receipts less $62,400 in overhead equals $249,600). Even if the husband is now only a 50 percent owner, the imputed annual income must be at least $124,800 ($249,600 divided by 2 equals $124,800).
The wife contends that this is a reasonable figure in consideration that the corporate tax returns for 1994 and 1995 show gross receipts of $318,320 and $340,421 respectively. The wife further argues that there are 556 dispatches in approximately an eight (8) hour shift as depicted in the June 13, 2005 log. Furthermore, the wife subpoenaed telephone records from Verizon which demonstrate that in a 20 hour period on January 30, 2005, there were approximately 2,079 calls received. A similar 20 hour period on March 11, 2005, showed 2,211 calls were received by Eastern Car Service. Yet, the husband testified that only 40 to 50 drivers allegedly work for Eastern Car Service. Finally, the wife asserts that the husband's unexplained transfer of the 50 percent interest in Eastern Car Service in 2003 is a transfer in contemplation of the instant lawsuit and as such is a basis to impute income.
Asset: The 40th Street, Brooklyn, New York
It is undisputed that the husband is a one-third (1/3) owner of a building located at on 40th Street, Brooklyn, New York. The two (2) other owners are the wife's two (2) brothers. This building has been described as a building with four (4) stores with two (2) small stores facing 5th Avenue and two (2) stores on, 40th Street, and nine (9) residential units. It was purchased with the use of a down payment and a purchase money mortgage. It is claimed that the wife's brother Luis has been the sole manager throughout the entire period of ownership. It is also claimed that one (1) of the wife's brother operates a restaurant out of two (2) stores on 40th Street. The husband claims that notwithstanding the fact that he repeatedly asked for information from his brothers'-in-law concerning the operation of this building, they failed to ever present an accounting or give him any income.
Throughout the course of this litigation the husband has steadfastly maintained that he has no information regarding this building. He receives no income from the property and he remains "in the dark" as to the value or income of the building. Husband insists that he receives no monies as a result of his one-third (1/3) ownership in this property. The husband has not taken any steps to secure his legal interest and demand an accounting and/or partition of this property.
The husband agrees to transfer one-half (½) of his one-third (1/3) interest in this property to the wife. He notes that any transfer of the one-third (1/3) interest should be subject to the purchase money mortgage.
The wife, on the other hand, believes that the husband is not forthright or credible in his revelation of the income received from the property. For example, the husband had a complete and accurate recollection of what his apartment rent was in 1991 but cannot recall his cost or share of the down payment for the 40th Street property which he purchased in 1994. Later in his testimony the husband recalled that he contributed $30,000 in cash for the down payment which he secreted in his apartment from his $300 a week earnings. This property was purchased for the sum of $420,000 in 1994 with a down payment in the amount of $100,000 and a mortgage in the amount of $320,000. 40th Street is the only martial asset, according to the wife, which has not been secreted during the course of this litigation.
Asset: Bar Social Club
The testimony adduced at trial indicated that in 1994 the husband, while earning $300 a week, opened a social club for members of the community of his home country of Ecuador. This business was located in a two-story premises leased at 1619 4th Avenue in Brooklyn, New York. A New York State liquor license was obtained in the husband's name which enable the business to sell alcohol. The evidence at trial showed that this license is renewable every two (2) years at a substantial state licensing fee in excess of $1,700. It is alleged that the club operated on Friday, Saturday and Sunday nights. The club also operated at other times to accommodate the "Pay Per View" soccer game schedule on large screen televisions. The husband claims that as of 1995 he was no longer involved in the operation of the club, due to numerous building violations which were issued and the landlord refused to make the requisite repairs. It is alleged that in 2001, when the club was closed for building violations, the husband surrendered the premises to the landlord. The husband contends that several months thereafter the husband's girlfriend, Reyna Gonzalez, took over the rental of the premises and operated a similar social club. Despite the husband's relinquishment of this business he failed to surrender his liquor license and the business continued to operate under that liquor license until 2004, almost ten (10) years later. At that time, the husband's divorce attorney arranged for the husband to formally surrender the liquor license.
There was no testimony as to the value of this social club or that the social club created any stream of income. Therefore, the husband claims there was a failure of proof as it relates to this asset. The husband contends that since there has been no evaluation of this social club, even if it was still in operation on the date of the commencement of this action, it is not subject to equitable distribution due to a failure of proof. The husband produced no documentary proof that he relinquished the lease of the premises although he contended that his girlfriend, Reyna Gonzalez, took over the lease and reopened the club a few weeks after the husband sent Ms. Gonzalez to see the building owner. The husband claims the social club was closed on March 21, 2002. He denies paying money to renew the liquor license although it was renewed at a substantial cost through November 2004.
The wife posits that the husband became the owner of the bar social club in 1994. Her brother Manuel Palaguachi was originally involved with this business. The wife testified at trial that she often witnessed the husband counting the cash income from the bar social club. The wife worked at the club when there were events broadcasted by satellite such as the World Cup Soccer. The husband charged an entrance fee in the amounts of $10 to $20 a person and there were approximately 200 people in attendance at some events. The club operated Friday through Sunday from early evening until four or five o'clock in the morning The cost of drinks was between $4 and $5 and bottles of alcohol were sold for $60 and $70. The wife testified that she helped clean and paint the club prior to it opening in 1994. It is undisputed that the husband purchased several regular televisions and two large screen television for broadcasts.
At trial, the wife's adult daughter from a prior relationship testified that the bar social club remained open after March 2001 and the husband continued to run it. Despite the husband's contention that he had no involvement with the club after its first year of business in 1994, according to this witness, on four (4) occasions in 2002 she saw the husband at the bar social club. He collected admissions at the door, walking around, coming out of the office and working behind the bar. She further testified that the first floor of the bar was filled with 100 to 125 people, each paying admission of $10 to $15 and that drinks cost $4 each. Also, the witness saw the husband's girlfriend, Ms. Gonzalez, there on only two (2) occasions, once dancing and once selling drinks behind the bar.
It is the wife's contention that the husband allegedly transferred the ownership of this business to his girlfriend and closed it down after the parties' separation. It is her position that his actions made it impossible to value this business. The wife contends that once again, the husband transferred marital property in contemplation of the instant matrimonial action without receiving fair market value.
Assets: RR United Inc.
The husband contends that after the action was commenced his girlfriend formed a corporation entitled RR United. Sometime thereafter, the husband became a part owner. It is alleged by the husband that this consist of a 1993 and 1998 Lincoln Town Car. The husband contends that there was no proof at trial as to the value of either RR United Inc. or the two (2) Lincoln Town Cars, nor was there any proof at trial proffered as to the alleged income earned by the corporation or by the husband from the operation of RR United Inc.
The wife contends that the husband testified at his deposition that he owned two (2) cars in 2003, a 2000 KIA and a 1992 Lincoln Town Car. At trial, the husband denied owning a 1998 Lincoln Town Car and could not remember if he owned a 2003 Lincoln Town Car. The wife does note that at the husband's deposition he admitted that the company RR United Inc. owned a 1993 and a 1998 Lincoln Town Car. However, the wife argues that certified documents from the TLC contain a Certificate of Title for the very same 1993 Lincoln Town Car naming the husband as the owner notwithstanding his deposition and trial testimony to the contrary. Additionally, the wife claimed that certified documents from the TLC introduced at trial contain a March 8, 2003 document entitled "Minutes of Meeting of Board of Directors and Shareholders of RR United". This March 8, 2003 document lists the husband as the president of the corporation and states "Mr. Manuel Rocano accepts the offer and becomes one of two shareholders". The document is signed by the husband. This contradicts the husband's testimony where he testified at trial that he was the secretary of RR United Inc. The document admitted into evidence reveals that he is the president.
Assets: 213 Munn Avenue, Irvington, New Jersey
The husband contends that after the parties separated he developed a romantic relationship with Ms. Gonzalez. She is a business owner who had previously employed the husband as a sewing piece worker. This action was commenced in May 2002. Thereafter, the husband and Ms. Gonzalez jointly purchased a house in Irvington, New Jersey, for $84,000.00 from Mike Mazza. Mr. Mazza is the same individual who sold the 40th Street property to the husband and the wife's brothers. The down payment for the purchase of the New Jersey property was $12,000 and the remaining balance was financed directly by the seller. The monthly mortgage payment due to Mr. Mazza is for the amount of $500. The husband contends that both the down payment and the monthly mortgage payments were paid by Ms. Gonzalez until late 2004. At that time Ms. Gonzalez allegedly became seriously ill and the mortgage payments stopped. At the time of trial husband testified that the mortgage payments were six (6) months in arrears. It is the husband's position that there is no credible proof to refute that the financing of the New Jersey residence was not by Ms. Gonzalez.
The wife claims that the property was purchased two (2) months after the commencement of this action and as such, any money used for the down payment would most likely be marital monies. Furthermore, the wife avers that since the husband failed to call Ms. Gonzalez as a witness or produce any documentation to corroborate his contention that all funds used in the purchase and mortgage payments were from Ms. Gonzalez, this would render these funds to be marital property.
Asset: 139 E. Wishart, Philadelphia, Pennsylvania
The wife asked that a HUD-1 statement be marked into evidence. This statement shows the husband purchased property in Philadelphia in 2001 for the amount of $2,000. This purchase was made during the time of the marriage. There was no expert testimony as to the value of this asset. The husband testified that his girlfriend, Ms. Gonzalez, provided the money to purchase this property.
Assets: Automobiles
The husband alleges that a 2000 automobile which he purchased for himself with a $1,000 down payment and financing for the balance of the loan was the subject of arson and destroyed. The husband claims that at the time this vehicle was destroyed in May 2004 it was worth $6,000 with an outstanding loan on the vehicle of $13,000. The insurance proceeds went to the secured loan provider and a debt of $7,000 remains outstanding. The husband testified that the same night his vehicle was burned, a vehicle owned by the boyfriend of Manuel Palaguachi's ex-wife was also burned a few blocks away. The husband alleges that at that time he replaced the KIA with a 1997 Pontiac in poor condition which cost $500. Additionally, the 1992 Lincoln Town Car which he purchased in 1999 that had over 300,000 miles registered on the odometer was totaled in an accident and there were no funds received or sought from that loss. The wife offered no proof at trial of this vehicle.
Debt
The wife testified at trial that the husband would file credit card applications in her name. This resulted in approximately $20,000 to $30,000 in aggregate debt that remains outstanding. She also testified he utilized some of these monies to purchase the wide screen televisions for the social club bar and used some of the monies to loan a friend that was traveling back to Ecuador. No documentary evidence was admitted into evidence to substantiate the claims of debt. The wife asks this court to direct that the husband pay all of the credit card debt which is allegedly in the wife's name.
The Law
Custody and Visitation
Upon consent, custody of the parties' daughter who is ten (10) years of age is awarded to the wife. The husband shall have visitation with the daughter commencing Sunday, April 23, 2006, from 1:00 p.m. to 6:00 p.m. and every other Sunday thereafter. The parties shall alternate New Year's Day, President's Day, Easter Sunday, Memorial Day, Labor Day, Thanksgiving, Christmas and Father's Day. The husband is to pick up and drop off the child in front of the wife's residence but shall not leave his automobile. It does not appear from the testimony adduced at trial that the husband has made any serious effort to maintain contact with the children. The visitation shall take place in pubic places, such as a park, a museum, a zoo, a restaurant or an appropriate movie house. This court makes this determination cognizant of the testimony that acts of domestic violence occurred in the presence of the children ( see also Wissink v. Wissink, 301 AD2d 36, 749 NYS2d 550 [2nd Dept. 2002]). If the father fails to appear regularly for visitation, the wife may move for modification and the child should be free to make other plans. Of course, if regular and consistent visitation ensues, then visitation may be extended. If the visitation is regular and consistent, the husband may move for an order of modification for increased visitation time after a six (6) month period. The parties' son's 18th birthday was March 31, 2006, accordingly, no award of custody or visitation shall be made herein for the son.
Maintenance
It is well settled that the amount and duration of maintenance is committed to the sound discretion of the trial court ( see e.g. Schultz v. Schultz, 309 AD2d 849 [2nd Dept 2003]; Wilson v. Wilson, 308 AD2d 583; Buchsbaum v. Buchsbaum, 292 AD2d 553 [2nd Dept 2002]; Murray v. Murray, 269 AD2d 433 [2nd Dept. 2000]), and that every case must be determined on its own unique facts ( see e.g. Wortman v. Wortman, 11 AD3d 604 [2nd Dept 2004]; Mazzone v. Mazzone, 290 AD2d 495 [2nd Dept 2002]). In awarding maintenance, "the court must consider the reasonable needs of the recipient spouse and the pre-separation standard of living in the context of the other factors enumerated in Domestic Relations Law § 236 [B] [6] [a]" ( Chalif v. Chalif, 298 AD2d 348, 348 [2nd Dept 2002]), which factors include "'the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance'" ( Kret v. Kret, 222 AD2d 412, 412 [2nd Dept 1995] citing Domestic Relations Law § 236 [B][6][a]). "[O]ne of the purposes of an award of maintenance is to encourage economic independence" ( Ventimiglia v. Ventimiglia, 307 AD2d 993, 994; Unterreiner v. Unterreiner, 288 AD2d 463). As is also relevant here, "'[a] court is not bound by a party's account of his or her own finances, and where a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed'" ( Lilikakis v. Lilikakis, 308 AD2d 435, 436 [2nd Dept 2003], quoting Matter of Thomas v. DeFalco, 270 AD2d 277, 278; accord Costello v. Costello, 304 AD2d 517; Maggi v. Maggi, 303 AD2d 650; Rohrs v. Rohrs, 297 AD2d 317).
In awarding maintenance herein the court must consider the fact that the husband has caused the wife to be placed in a state where her immigration status is, to say the least, vulnerable, while at the same time protecting his own immigration status, and even that of the wife's daughter. This, when combined with the credible testimony of the overt physical and verbal domestic violence leads this court to believe that the husband intentionally neglected to take the steps necessary to assist the wife in obtaining legal immigration status in this country as a means of exerting power over her. It is clear to this court that the husband believes that the incidents of domestic violence which have been imposed upon the wife by him are limited. In a somewhat naive view, he believes that by testifying that the acts of domestic violence were far and few between or that the wife's daughter's testimony that he was a good provider, would obviate the affects of domestic violence upon this woman or minimize the effects of domestic violence on the wife. It is this court's impression that the violent behavior exhibited by the husband was often accompanied by his intoxication. The violence has clearly been substantiated by the testimony of the wife and her daughter.
The husband is a United States citizen who is a successful businessman and owner of multiple properties with a source of steady income, juxtaposed to the wife who is an immigrant without legal immigration status, a victim of domestic violence who fears for her health, welfare and safety, with no command of the English language and she has a very limited education. The wife's fear from physical domestic violence, coupled with the husband's threats that the wife will get nowhere because she does not speak English, has placed her in a position of vulnerability which warrants an award of substantial maintenance as a basis for the wife to maintain her meager standard of living. While the husband has been able to enjoy the benefits of United States citizenship, the ownership of buildings, storefronts, a car service dispatch operation, a home in New Jersey with his girlfriend, land in Pennsylvania, automobiles for business use, travel, send money to the wife's mother back in Ecuador and also send money to allegedly maintain a vehicle that the husband keeps in his home country, yet the husband does not assist the wife in obtaining legal immigration status. The court notes that although the husband suggests the wife must not need more money since she does not receive public assistance, it is evident that the wife's immigration status, at present, prevents her from being a recipient of public assistance and from obtaining employment.
It was clear to this court that the husband's knowledge and understanding of the English language was far greater than that which he was willing to concede. The trial was the very first time in this litigation process that the husband requested an interpreter. Although, complex words utilized in a trial could warrant him requiring an interpreter, he spoke English quite well, answered questions long before the interpreter would even begin translation and had to be reminded to continue to use the court interpreter if he needed interpreter services. On the contrary, the wife's knowledge of the English language was severely limited and understanding pivotal words and their meanings, even in Spanish, was far beyond her capabilities. The husband has been a successful businessman, earning a substantial sum of cash income where the wife has certainly tried to "hold it together" by being employed as a factory worker at times and maybe even helping in the family restaurant, together with the assistance provided by the government to provide for the children. The vulnerable situation which the wife finds herself in, to wit; unable to speak English, unable to understand complex words in the Spanish language, limited ability to work in a factory, the victimization resulting from domestic violence and the fear of authority which could challenge her immigration status, has caused her not to seek intervention.
The husband's attempts to portray the wife as a full time employee in her family's restaurant and as such, self supporting were not credible.
The court, in awarding maintenance, must also take into account that while the husband has been able to integrate into American society and may remain in the United States as a legal citizen, the wife has not been able to adequately integrate. She lacks the skill of understanding or speaking the English language as well as any marketable skills other than the piecemeal factory work which she admits she had done in years past. The wife's economic prospects for self-sufficiency and entering the mainstream workforce are highly improbable.
Accordingly, the court believes that maintenance should be non-durational ( see Keane v. Keane, 25 AD3d 729, 809 NYS2d 133 [2nd Dept 2006]). This is necessary based on the length of the parties marriage, their age, the vast difference in their actual income earned and the wife is unequipped to become self supporting due to her lack of education and inability to speak English. Additionally, although expert testimony was not introduced, the wife testified to severe headaches and memory loss as a result of the multiple beatings the wife endured. The husband is in good health. The wife's mental state is also a health issue. The prospects of her obtaining significant employment which would allow her to become self-supporting, is limited at best. In awarding maintenance, the court is aware that the wife presently has no medical coverage and is not eligible, at the present time, to receive any medical coverage and, therefore, any cost for medical assistance must be borne solely by the wife. Accordingly, the court awards $125 each week as non-durational maintenance, retroactive to the date of first application, in this case the verified answer ( see Dooley v. Dooley, 128 AD2d 669, 513 NYS2d 167 [2nd Dept 1987]). The maintenance is not deductible to the husband given his failure to properly claim his cash income.
It would be inappropriate to award the husband a tax benefit given his years of thwarting that very system. The arrears are to be paid at a rate of $25 a week.
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.' [ citing Matter of Cassano, 85 NY2d 649, 652 (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, citing Family Ct Act § 413 [b] [5].
After computing statutory income, a limited number of deductions are allowable under Domestic Relations Law § 240 (1-b). The CSSA provides for eight categories of deductions from income, which includes maintenance payments and Federal Insurance Contributions Act (FICA) taxes paid (see Domestic Relations Law § 240[1-b] [b] [5] [vii] [A] — [H]. Significantly, receipt of a distributive award payments is not a statutory category of income, nor is the payment of a distributive award a recognized deduction.
The court next multiplies the combined parental income figure, up to a ceiling of $80,000, by a designated percentage based on the number of children to be supported, and then allocates that amount between the parents, applying each parent's respective portion of the total income to reach the amount of each parents support obligation (Domestic Relations Law § 240 [1-b] [b] [3]; [c] [2]. In the final step, where combined parental income exceeds $80,000, the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of [Domestic Relations Law § (1-b)] and/or the child support percentage' (Domestic Relations Law § 240 [1-b] [c] [3]).
( Holterman v. Holterman, 2004 WL 1263742, 2004 NY Slip Op 04786, NY June 10, 2004 [2004]).
However, "[i]n determining a party's child support obligation, a court need not rely upon the party's own account of his or her finances, but may impute income based upon the parties' past income or demonstrated earning potential ( see Westenberger v. Westenberger 23 AD3d 571 [2nd Dept 2005]; Rocanello v. Rocanello, 254 AD2d 269, 678 NYS2d 385 [2nd Dept 1998]). This is particularly true where, as here, the record supports a finding that the husband's reported income on his tax return is suspect ( Ivani v. Ivani, 303 AD2d 639, 757 NYS2d 89 [2nd Dept. 2003] see Matter of Graves v. Smith, 284 AD2d 332, 725 NYS2d 367 [2nd Dept. 2001]).
Here, the wife earns a minimal income of $4,500. This court credits the wife's testimony that she has been unable to work in the local factories since they closed, years back. Furthermore, this court considers the husband's contention that the wife works at her family's restaurant. The wife refutes any form of steady employment in the restaurant. She concedes to assisting in the restaurant from time to time when they are in need. However, this court does not believe it is appropriate to impute income for this sporadic assistance where it appears she does not receive actual earnings. The wife testified that she regularly receives financial assistance from her brothers and sister. When a sibling occasionally asks for assistance and the wife volunteers her services, this is not employment. Jamie Landy, a long time friend of the husband testified that he saw the wife in a white shirt and apron in her brother's restaurant in 2003 and 2004. He stated that the wife was not wearing the same uniform of the other workers which leads this court to believe the wife was not a regular employee.
Husband claims he earns an annual gross income of $17,185 pursuant to his 2003 tax return. However, in determining the appropriate amount of child support pursuant to the analysis provided herein, the court imputes income of $88,895. The total income earned by defendant is $106,080.
This court arrived at this number by considering the 88 drivers represented in the Eastern Car Service log and the husband's testimony that the driver's pay $60 each week for the dispatch service to equal corporate income in the amount of $5,280 a week (88 drivers multiplied by $60 a week equals $5,280 a week). This equal $274,560 income earned by Eastern Car Service in a year ($5,280 a week multiplied by 52 weeks in a year equals $274,560 each year). This court then subtracted $62,400 for expenses of Eastern Car Service which leaves a profit in the amount of $212,160 ($274,560 minus $62,400 equals $212,160). This court then divided the profit of $212,160 in half, based on the 2003 corporate tax return which listed the husband as a 50 percent owner, rather than a 100 percent owner. That leaves the husband with an income of $106,080 from Eastern Car Service ($212,160 divided by 2 equals $106,080). To avoid double dipping, this court then subtracted the husband's declared income of $17,185 from the total income believed to be earned by him ($106,080 minus $17,185 equals $88,895). Accordingly, the amount of income imputed to the husband is $88,895. The total income of $17,185 plus the imputed income of $88,895 based on Eastern Car Service records and testimony adduced at trial results in income to the husband of $106,080.
The husband's total gross income of $106,080 minus FICA paid in the amount of $1,193, New York City tax paid in the amount of $61 and the annual maintenance obligation in the amount of $6,500 brings his total income for child support purposes to $98,326 a year. The wife's concedes a total gross income of $4,500. She is not entitled to deductions for FICA or New York City tax since no such payments were made. The wife's income for child support purposes is $4,500 a year. The parties' total combined income is $102,826. The total child support obligation for the parties' two (2) children for the first $80,00 in combined income is $20,000 a year until the oldest child is 21 years of age on March 31, 2009, or emancipated, whichever is earlier. Thereafter, the child support obligation is $13,600 a year until the parties' youngest child is 21 years of age on September 27, 2016, or emancipated, whichever is earlier ( see Lee v. Lee, 18 AD3d 508, 795 NYS2d 283 [2nd Dept. 2005]). Wife's pro rata obligation is 4 percent and the husband's pro rata obligation is 96 percent.
However, this court shall consider the child support obligation of combined parental income over $80,000 ( see Cassano v. Cassano, 85 NY2d 649, 628 NYS2d 10). The total combined income of the parties for child support purposes is $102,826. The total child support obligation for the parties' two (2) children is $25,700 until the oldest child is 21 years of age on March 31, 2009, or emancipated, whichever is earlier. Thereafter, the child support obligation shall be reduced to $17,480 a year until the parties' youngest child is 21 years of age on September 27, 2016, or emancipated, whichever is earlier. Wife's pro rata obligation is 4 percent and the husband's pro rata obligation is 96 percent. Accordingly, the child support obligation for the husband is $24,672 a year or $474.46 a week through March 31, 2009, and thereafter shall be $16,780 a year or $322.69 a week until September 27, 2016. Payments are to be made on Friday of each week.
The factor considered by this court in applying the parties' combined parental income over $80,00 are numerous. Th wife is not working at this time. She is currently unable to obtain legal employment since she is an illegal immigrant. Although the husband successfully secured citizenship for himself, he did not see fit to do the same for the wife. Furthermore, the lingering health consequences from the domestic violence creates a difficult, if not impossible, circumstance for the wife to earn a living. She is afraid to leave her home and she has constant headaches and memory loss. The wife has an elementary school education and has not learned to speak the English language. Pursuant to the wife's affidavit of net worth, the lifestyle of the wife and children is as follows: the monthly rent is $1,225, the electric bill is $70 a month, the telephone is $80 a month, clothing for the children costs $130 a month and supplies and events for school cost $25 a month. The children have basic needs that must be met, however, in consideration of the facts surrounding the wife's current inability to earn an income and a father whose income is far greater than he claims, this court determines it is appropriate to award child support on combined parental income in excess of $80,000 ( see Cassano, 85 NY2d 649; see also Kaplan v. Kaplan, 801 NYS2d 391, 21 AD3d 993 [2nd Dept 2005]). The child support shall be payable to the Commissioner of Social Services and paid through the New York State Child Support Processing Center. At such time when the monies collected for child support exceed the children's public assistance, the New York State Child Support Processing Center shall forward payments directly to the wife. Further, the husband shall provide health insurance for the children.
The court rejects the argument put forth by the husband that the court is bound to accept that which was agreed to by the Child Support Enforcement Team in the Family Court. The court rejects said notion since the Family Court order was effective as of June 21, 2002, any action for divorce would allow this court to fix child support retroactive to the date of first request, the summons or, in this case, the answer which requested an award of both support and maintenance. The Family Court order provides for child support in the amount of $40 a week. This amount is inadequate to prevent the children from becoming a public charge. Therefore, an upward modification is warranted ( see Domestic Relations Law 236 [B] [9] [b]). Also, given the finding that this court is imputing income to the husband upon the basis of his unreported cash income, this court must recalculate child support. The testimony adduced at trial demonstrates the husband's representations of his assets and income are patently fraudulent. The economic interests of the Department of Social Services as assignee of the benefits is different from an award of child support and maintenance de novo.
Among the factors to be considered in whether there has been a change in circumstances warranting an upward modification of support are the increased needs of the children, the increased cost of living insofar as it results in great expenses for the children, a loss of income or asset by a parent or substantial improvement in the financial condition of a parent and the current or prior lifestyles of the children'" Shed v. Shed, supra [ 277 AD2d 917] While an increase in the noncustodial parent's income is a factor which may be considered in deciding whether to grant an upward modification of child support this factor alone is not determinative ( see Matter of Rosenthal v. Buck, supra [ 281 AD2d 909]; Shed v. Shed, supra).
Love v. Love, 303 AD2d 756, 757 NYS2d 579 [2nd Dept 2003].
Clearly, there is a substantial change of circumstance in that the husband's earnings reported to the Family Court and his actual earnings determined by this court, after a full trial on the issues of inter alia equitable distribution and maintenance, are substantially incompatible and this court is making an award of maintenance ( see Domestic Relations Law 236 [B] [9] [6]). Since maintenance is deductible from the husband's gross income for the purposes of child support, this court must recalculate the child support obligation ( see Lee, 18 AD3d 508). The discovery of this income and assets during this divorce action and not revealed in the Family Court is a basis to recalculate the husband's child support obligation.
Equitable Distribution
In recognizing a marriage as an economic partnership, the Domestic Relations Law mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the trial court to consider a number of statutory factors listed in Domestic Relations Law § 236 (B) (5) (d) ( see generally Holterman v. Holterman, 3 NY3d 1, 7-8).
As is relevant here, DRL § 236 (B) (5) (d) provides that; "In determining an equitable disposition of property under paragraph c, the court shall consider: "(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action; "(2) the duration of the marriage and the age and health of both parties; "(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects; "(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution; "(5) any award of maintenance under subdivision six of this part; "(6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party; "(7) the liquid or non-liquid character of all marital property; "(8) the probable future financial circumstances of each party; "(9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party; "(10) the tax consequences to each party; "(11) the wasteful dissipation of assets by either spouse; "(12) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; "(13) any other factor which the court shall expressly find to be just and proper."
"Although in a marriage of long duration, where both parties have made significant contributions to the marriage, a division of marital assets should be made as equal as possible, there is no requirement that the distribution of each item of marital property be made on an equal basis" ( Chalif v. Chalif, 298 AD2d 348, 349 [citations omitted]; accord Arvantides v. Arvantides, 64 NY2d 1033, 1034; Adjmi v. Adjmi, 8 AD3d 411, 412; Graves v. Graves, 307 AD2d 1022, 1024; Meza v. Meza, 294 AD2d 414; Saasto v. Saasto, 211 AD2d 708, 709; Ehrlich v. Ehrlich, 184 AD2d 400). Further, it is proper for the court to consider the parties' relative economic contributions to the marriage in arriving at a formula for the distribution of the marital property ( see e.g. Kaplinsky v. Kaplinsky, 198 AD2d 212, 213, citing DRL § 236 (B) (5) (d) (1); Palmer v. Palmer, 156 AD2d 651; Michalek v. Michalek, 114 AD2d 655; Kobylack v. Kobylack, 111 AD2d 221, 222). In this regard, the fact that one party may have made greater economic contributions to the marriage than the other does not necessarily mean that the former is entitled to a greater percentage of the marital property ( Bartek v. Draper, 309 AD2d 825, 826). Rather, "'[e]quitable distribution presents matters of fact to be resolved by the trial court, and its distribution of the parties' marital property should not be disturbed unless it can be shown that the court improvidently exercised its discretion in so doing'" ( Johnson v. Johnson, 261 AD2d 439, 440, quoting Oster v. Goldberg, 226 AD2d 515, appeal denied 88 NY2d 811).
Marital v. Separate Property
Domestic Relations Law § 236 (B) (1) (c) defines marital property as "all property acquired by either or both spouses during the marriage and before . . . the commencement of a matrimonial action, regardless of the form in which title is held" ( see Seidman v. Seidman, 226 AD2d 1011, 1012). Separate property, on the other hand, is defined, in part, as "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse" (DRL § 236 [B] [1] [d] [1]). It must also be recognized, however, that the term "marital property" is to be broadly construed, while the phrase "separate property" is to be narrowly construed ( see e.g. Judson v. Judson, 255 AD2d 656, 657, citing Price v. Price, 69 NY2d 8, 15). Hence, the law favors the inclusion of property within the marital estate ( compare DRL § 236 [B] [1] [c] and [d]; see Burns v. Burns, 84 NY2d 369, 374; Majauskas v. Majauskas, 61 NY2d 481, 489), and, accordingly, "the party seeking to establish that a particular item is indeed separate property bears the burden of proof" ( LeRoy v. LeRoy, 274 AD2d 362, citing Seidman, 226 AD2d at 1012; Heine v. Heine, 176 AD2d 77, 83, lv denied 80 NY2d 753). As is also relevant herein, "[i]t is clear from the language of the statute that the Legislature intended that a gift from a third party to one spouse be considered the separate property of that spouse" ( Ackley v. Ackley, 100 AD2d 153, 155, appeal dismissed 63 NY2d 605, motion dismissed 63 NY2d 772).
Credibility
"Evaluating the credibility of the respective witnesses is primarily a matter committed to the sound discretion of the Supreme Court" ( Varga v. Varga, 288 AD2d 210, 211, citing Diaco v. Diaco, 278 AD2d 358; Ferraro v. Ferraro, 257 AD2d 596, 598). The court's assessment of the credibility of witnesses is entitled to great weight ( see generally Wortman v. Wortman, 11 AD3d 604, 606). "In a nonjury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion" ( Ivani v. Ivani, 303 AD2d 639, 640, citing L'Esperance v. L'Esperance, 243 AD2d 446; accord Krutyansky v. Krutyansky, 289 AD2d 299, 299-300; Diaco, 278 AD2d at 359; Solomon v. Solomon, 276 AD2d 547).
Asset: Eastern Car Service
Based upon the credible evidence in the instant action and the evident concession of the wife, the court believes that Eastern Car Service is not subject to equitable distribution. This business existed prior to the marriage and there is no basis to award any appreciation as there has been no testimony as to active or passive appreciation.
However, it is clear that this asset, although separate property, is the husband's main source of income. The husband has been less than forthright in his revelation as to its true amount of income. It is beyond any doubt that this business receives its income in the form of cash. To that end, it is totally incredible to believe that the husband earned $300 each week all of the years of this marriage from the operation of Eastern Car Service while at the same time amassing the assets and investments which he has been able to gather during the course of the marriage. This court finds that the husband is simply not telling the truth and he refuses to recognize his obligation to tell the truth in a court of law. It is crystal clear to this court that the husband runs a business that has substantial cash income. This court simply must come to the conclusion that his representations as to the amount of income received from Eastern Car Service are without merit or credibility given the number of calls received at Eastern Car Service as evidenced by the phone logs from Verizon, and the number of cars utilized for the calls. Furthermore, the step-daughter's recollection of playing a counting game with her cousin utilizing the car service trip sheets indicate a large number of drivers. In 2002 and 2003 she recalls counting 140 drivers. This contradicts the husband's illogical testimony that one driver can have more than one call name. This court can only deduce that the husband lied about his true income. Accordingly, this court attributes Eastern Car Service's total income at approximately $212,160 each year of which 50 percent is earned by the husband.
Yet, given the number of telephone calls received, even if the calls in and of themselves do not result in a pick-up by an Eastern Car Service driver each and every time, the amount of drivers that utilized Eastern Car Service and the territory covered far exceeded that which the husband led this court to believe. Eastern Car Service is not a small operation from which he earns $300 a week. It is clear from the testimony of the husband that he has not produced the complete books, records and logs of Eastern Car Service. The court finds the inconsistent testimony of the husband as to the total number of cars, the number assigned to drivers, the amount of calls and amount of money made by Eastern Car Service for each car leads this court to believe there are more drivers and cars utilizing Eastern Car Service then the husband testified. Similarly, it is not credible that the husband has little to no knowledge of this business given he was president of the company for many years and this has been his full time job outside of the social club which he alleges he only operated for one (1) year.
Asset: The 40th Street, Brooklyn, NY
The party seeking the distribution of an asset has the burden of establishing its value ( see e.g. Vainchenker v. Vainchenker, 242 AD2d 620 [2nd Dept. 1997]; Amisson v. Amisson, 251 AD2d 274 [2nd Dept. 1998]; Harris v. Harris, 242 AD2d 560 [2nd Dept. 1997]; Iwahara v. Iwahara, 226 AD2d 346 [2nd Dept. 1996]; Kaye v. Kaye, 192 AD2d 365 [1st Dept. 1993]; Vogel v. Vogel, 156 AD2d 671 [2nd Dept. 1989]). However, this court recognizes that the husband has built a wall around the assets and sources of income. The husband feigned ignorance regarding the property located at 40th Street thereby preventing the wife from establishing a value for this marital asset. The only testimony before this court is that husband has a one-third (1/3) ownership interest. If this court did not enter a finding of distribution of this asset upon the basis of no valuation that would simply reward an obstreperous litigant, the husband ( see Misceli v. Misceli, 233 AD2d 372, 650 NYS2d 241 [2nd Dept 1996]). Therefore, notwithstanding the fact that no value was placed into evidence nor was there any testimony as to the value of this mixed use multiple dwelling, the court refuses to adopt the husband's theory that he knows nothing and does not understand the operation of nor does he receive any profits from this property known as the 40th Street, Brooklyn, New York. At the very least, his failure to seek partition of that action, an accounting of rents or assert his ownership interest in this property, is a wasteful dissipation of a marital asset pursuant to Domestic Relations Law § 236 [B] [5] [d] [11].
The husband consents to a 50 percent distribution to the wife of his one third (1/3) interest in the 40th Street property. However, this court does not believe that an equal distribution of this asset is necessarily equitable ( see Chalif, 298 AD2d 348). Accordingly, the wife is awarded 100 percent of the husband's right, title and interest in the 40th Street property. The court does so recognizing that the husband has not been truthful about his assets or income. The husband's attempts to feign ignorance with regard to the income generated from the disclosed assets and his ownership interest therein. He is unconvincing. Furthermore, the husband's failure to properly secure his interest in the 40th Street property and the benefits that should arise from that property is clearly a wasteful dissipation of the asset. Given the future financial circumstances of the parties, it is clear that the husband has had the wherewithal to continue to provide capital as well as interest in businesses to provide income to him in futuro.
The wife, on the other hand, still remains as an immigrant without legal status in this country and speaking no English. She also continues to suffer the effects as a victim of domestic violence. While medical proof is not required at trial in order to prove that domestic violence occurred, it is clear to this court that she has a limited ability to work in the future and that she has been traumatized by the incidents of domestic violence.
Given the wasteful dissipation of the 40th Street property, the domestic violence endured by the wife and the duration of this marriage where the wife has not been the major wage earner of this family, she is entitled to a 100 percent of the husband's one-third (1/3) interest in this asset which is the only asset of the marriage available to the wife. Accordingly, the husband is directed to transfer his one-third (1/3) interest in the property within 30 days of service of the judgment with notice of entry. The husband shall be responsible for any transfer taxes.
Asset: The Social Club
The court does not, at this juncture, have any basis to award any interest in the bar social club to the wife in that it appears the husband no longer owns this business. Furthermore, the business was not appraised. It appears that while the liquor license remained in the husband's name for years subsequent to his surrender of this bar social club, that there has not been any proof adduced at trial which would indicate that he receives any profits, at the present time, from the bar social club. Nor is there any testimony regarding the value of the business or assets that could have been sold for fair market value at the time the business was transferred to Ms. Gonzalez, with the exception of large screen television. It is certainly suspect that this social club was transferred to his girlfriend however, at this juncture, there is no credible evidence that the bar social club is subject to equitable distribution.
Additionally, it is clear that the social club was an asset acquired during the course of the marriage but at present time has no value due to the husband's secreting of the assets related thereto. It is not believable that the husband would continue to be a holder of a liquor license at a cost in excess of $1,700 every two years for a business he no longer has an interest. What is more, credible testimony was adduced at trial which repeatedly placed the husband at the social club, not as a patron, after his alleged relinquishment of ownership. Given the difficulty in evaluating this business which the husband gave to his girlfriend, this court believes the only viable alternative is to award the wife 100 percent in the 40th Street property and the husband can continue to maintain whatever value exists in the social club or the value that he should have received upon the transfer of ownership to his girlfriend. The court recognizes the wife may have to move to partition this property.
Asset: RR United Inc.
There is no proof at the present time that this asset is subject to equitable distribution since this business was formed after the commencement of this action and there is no evidence that marital funds were utilized. The only assets of this corporation are two (2) old Lincoln Town Cars with high odometer readings. The fact that the husband is listed as president of RR United Inc., does not rise to the level that this court can order equitable distribution of any asset where there is absolutely no valuation of the asset by any expert testimony or any testimony adduced by any party during the course of the litigation. The court notes, that while it is highly suspect that the plaintiff claims that both this business and the bar social club generate no income, based on the failure of proof, the court must decline to award any interest in RR United.
Asset: 213 Munn Avenue, Irvington, New Jersey
The husband's testimony in conjunction with the HUD-1 statement establishes that the New Jersey property was purchased with Ms. Gonzalez after the commencement of this divorce action. Pursuant to Domestic Relations Law § 236 (B) (1) (c), property acquired after the commencement of the divorce action is separate property. Furthermore, the husband testified that he contributed no monies to the acquisition of this asset and the wife was unable to prove anything to the contrary. Accordingly, this court declines to award any interest to the wife in the New jersey property.
Asset: 139 E. Wishart, Philadelphia, Pennsylvania
The husband also purchased property in Philadelphia in his name alone. This purchase was made in 2001, during the course of the marriage. Again, he contends that the funds used to purchase the property were obtained from Ms. Gonzalez. Nevertheless, this court heard no testimony from Ms. Gonzalez, nor was any documentary proof submitted to substantiate his contention. Pursuant to Domestic Relations Law § 236 [B] [1] [c], this asset was acquired during the course of the marriage, consequently, it is a martial asset subject to equitable distribution. Accordingly, the husband shall sell this property forthwith, for fair market value and one-half (½) of the proceeds shall be distributed to the wife as and for equitable distribution.
Assets: Automobiles
There does not appear to be any equity subject to equitable distribution in the $2,000 automobile which was allegedly destroyed in a fire and still has an outstanding loan. The husband shall have all right, title, interest and liabilities associated with the KIA automobile which the husband purchased to replace the vehicle destroyed by the fire. Additionally, the court declines at this juncture to equitably distribute a 1997 Pontiac which was allegedly purchased during the course of the marriage for the sum of $500, nor does the court have a basis by which to equitably distribute the Lincoln Town Car with approximately 300,000 miles on the odometer. There was no evidence adduced at trial as to the book value of these automobiles.
Debt
Although the wife testified at trial that the husband filed applications for credit cards in the wife's name and that there was approximately $20,000 to $30,000 in debts that remain outstanding, there was no offer of proof. Accordingly, this court does not equitably distribute this alleged debt.
Conclusion
In awarding nondurational maintenance and 100 percent of the husband's one-third (1/3) interest in the 40th Street property to the wife, this court has considered the factors enunciated in the Domestic Relations Law 236 [B] [6] [1-11] as well as 236 [B] [5] [d] [1-13]. The husband has offered no credible explanation for obtaining legal immigration status for himself and the wife's daughter but not for the wife herself. This leaves this court to believe that while he secured his future financial independence by purchasing businesses, real property, social clubs and a residence in New Jersey, he purposely did not assist his non-English speaking wife in securing her future financial well-being. While imposing domestic violence upon her and keeping her without legal immigration status, he asserted total control over her, physically, emotionally and economically. At the same time, it appears for the last years of their marriage he flaunted an adulterous relationship with another, his girlfriend and business partner, and often drank to excess.
He took no steps to permit the wife to move forward, notwithstanding the fact that she is 10 years older than him and has a young child who will be with her for many years to come in her custody and care. It should be noted that the court does not find credible the husband's testimony that it is the wife who interfered with his relationship with the child and, in fact, verily believes that this father has all but abandoned himself from this child and must take the steps necessary, if he so desires, to reinstitute a relationship with this child.
It is clear that in this long term marriage the husband's future earning capacity and ability to not only earn money but obtain financing for businesses and properties will flourish. While the wife, clearly in this country for many years, still does not speak and understand English and has a limited understanding of words in the Spanish language. The domestic violence which has been imposed on her by her often intoxicated husband, when coupled with her immigration status, will make it difficult for her to integrate into society. Notwithstanding same, her limited ability to work in either a factory or assist in her family's restaurant will not provide the economic wherewithal for her to be self-sufficient in the future without assistance from the husband. While he was in the business world secreting assets, transferring the social club in contemplation of divorce while maintaining a liquor license on the same premise, purchasing a one-third (1/3) interest in property containing rental units and stores while allegedly never collecting a penny in rent, the wife has lived below the poverty level. His failure to collect an income and his share of profits from the 40th Street property, clearly led to the wasteful dissipation of this asset and a loss of income for the wife.
It is clear that the wife herein has attempted to maintain the rearing of her children and provide for support by whatever means necessary, including borrowing from relatives, taking in boarders and doing piece sewing in a factory. She has gone on alone without any real assistance from the husband and would probably have continued in that lifestyle were it not for the efforts of The Legal Aid Society and an award of nondurational maintenance. This court must recognize that the husband can earn income the wife cannot due to her immigration status. He continues to earn sums of money in cash while not reporting a majority of that income to any governmental agency.
This court in awarding 100 percent of the one-third (1/3) marital interest in the 40th Street property is cognizant of the fact that the husband has transferred property in contemplation of this divorce action, has secreted the true value of Eastern Car Service as well as the true earnings of the corporation, has liquidated his interest in the bar social club, while still maintaining home ownership with his girlfriend in the New Jersey and he owned the lot in Pennsylvania. This 40th Street property is the asset that can be ascertained by the wife in order to provide her with equitable distribution of at least some of the marital assets. The husband cannot hide behind his secretion of assets, his less than candid revelation of income and his steadfast testimony that he only earns $300 a week for years upon years. This husband has always earned more monies that the wife.
These factors, when coupled with the overt domestic violence imposed upon this wife, at times in the presence of the children, which is especially disconcerting given the fact that she has been in this country without legal status, does not understand English, warrant the awarding of 100 percent of the marital share of the 40th Street property, together with nondurational maintenance. Her credible, compelling testimony, her plight and her courage in holding herself and children together as a family despite this adversity, should not go unrecognized.
Settle separate Findings of Fact and Conclusions of Law and Judgment of Divorce, and affidavit by plaintiff pursuant to Domestic Relations Law § 253 on notice, together with the minutes of this court related to the inquest and this decision within 60 days.