Opinion
XXXXX
02-04-2020
SVETLANA E., Plaintiff, v. MARCUS E., Defendant.
Igor Niman, Esq., 1909 East 17th Street, Brooklyn, New York 11229, Attorney for Plaintiff. Marcus E., Defendant Pro Se.
Igor Niman, Esq., 1909 East 17th Street, Brooklyn, New York 11229, Attorney for Plaintiff.
Marcus E., Defendant Pro Se.
Jeffrey S. Sunshine, J.
The following papers numbered 1 to 3 read herein:
Papers Numbered
Notice of Motion/Order to Show Cause/
Petition/Cross Motion and
Affidavits (Affirmations) Annexed 1
Opposing Affidavits (Affirmations) 2
Reply Affidavits (Affirmations) 3
The Defendant pro se filed a pendente lite order to show cause dated May 14, 2019 seeking, the following relief: "1) Modifying the terms of the judgment [Sic] of child support and 2) Modifying the terms of the maintenance payments."
The Court will deem Defendant's order to show cause as an application for a downward modification of the pendente lite child support and maintenance decision and order signed on December 18, 2018.
The Defendant asserts that, during the course of this litigation, on March 29, 2019 that he was terminated from his employment in the maritime industries after having worked for the same employer for approximately 5 years. The Defendant asserts that his loss of employment was in part related to the Plaintiff's commencement of the divorce action herein and her request for an order of protection. In fact, in his reply affidavit to this instant motion dated January 2, 2020 he asserts "I am unemployed since 3/29/19 due to undue stress of my wife unfair demands forcing me for divorce"
The oral argument in this application was delayed because the Defendant asserted that his mother in Turkey was ill and that he had to travel to Turkey due to her poor health. It has also been previously alleged and not refuted that on his trip to Turkey he also traveled to Russia.
It is undisputed that the Defendant is living in the marital property in West Hempstead New York and the Court is presently in the middle of conducting a trial on the issues of custody, visitation and the Plaintiff's request for an Order of Protection. His prior counsel was relieved, on consent, by filing an Order to Show Cause to be relieved on April 29, 2019. The Court did appoint Defendant counsel pursuant to Judiciary Law 35(8) for the limited purposes of custody, visitation and Order of Protection.
In his affidavit of Net Worth, attached to the instant Order to Show Cause, Defendant asserts that he pays a monthly mortgage of $5,267.16 per month together with insurance of $141.66 per month, fuel costs of $300 per month, electricity costs of $190 per month, cell phone bills of $95 per month, cable bill of $60 per month, internet bill of $60 per month, water bill of $40 per month, grocery costs of $600 per month, cost of dining out is $320 per month, clothing costs for himself of $150 per month, dry cleaning bill of $40 per month and an additional $150 for clothing for the child. He further asserts that he has automobile insurance that costs $250 per month and that he had to purchase a new 2018 Honda with a monthly payment of $711 per month and that he took a 12-month car repair package that costs $150 per month and also pays $250 monthly for gas and oil. In his affidavit of Net Worth, he leaves the total monthly section of expenses "to be determined" and asserts that an addition to the unemployment checks that he also receives $1600 a month for rent sporadically from a tenant, in an apartment in the home, which he is currently in a dispute with. He lists the real estate in New York as owned by both parties purchased on January 13, 2017 for $570,000 and he claims that there is mortgage and loans from his mother totaling $397,795. He also asserts that he owns a home in Turkey with a current value of $50,000.
At oral argument, after having been sworn and thoroughly allocuted on the risks of representing himself and the availability of resources through local bar associations and having been provided a copy of the child support standards act and the maintenance guidelines notice, the Defendant reiterated that it was the Plaintiff's fault that he could no longer work because of the commencement of the divorce action. He claimed that he was seeking employment on a daily basis and had not been successful. He asserted that presently living with him in the marital home in West Hempstead is his mother, his sister (who cleans houses), and his 15-year-old niece. He claims that none of them pay rent and that his mother lends him money to support himself and the household. He also asserted at oral argument that his mother receives monies from illegal immigrants who work at a local gas station and then she sends that money for them to Turkey.
Plaintiff's counsel asserted that (and under oath his client adopted his statement) that the Defendant is able to meet $10,000 per month in expenses but seeks a reduction in child support. Plaintiff asserts that there are additional tenants in the property and that the Defendant is purposely not seeking employment. According to the Plaintiff's affidavit of net worth she is residing in Brooklyn with the child who is 3 years of age, at a confidential address after obtaining a Temporary Order of Protection due to allegations of domestic violence. By affidavit of Net Worth dated December 6, 2019 she asserts that she earned $52,500 in 2019 and $37,727 in 2018 and her rent is $1150 per month, $40 in electric bills per month, $60 on cell phone costs per month, and $60 on internet costs per month. She also expends $400 per month on groceries and $40 per month on dining out. She further claims costs of $216.66 for a 2013 Hyundai and that she pays for the child $990 per month in nursery and preschool costs.
In his reply affidavit, the Defendant attacks the Plaintiff's expenditures as frivolous for example he states "She is a online shopholic, while we were living together, we were receiving boxes everyday from amazon or other online shops every single day. We have had toys that covering our 2 rooms." [Sic], "She abuses child care money that she received from me: she purchased apple product for $2229.76 on 1/24/2019 while she was eagering [Sic] and craving money for our son." [Sic], "Svetlana uses 3 form of transportation while she is making limited money biweekly $1265.09 . Personal Car, Subway and Uber. [Sic] She is using subway card for her work about $100 per month. She uses UBER for some reasons average $50 .. She also keep personal/marital car which costing her average monthly : $400 in the name of punishment to husband and using child's money for no reason to care insurance and car that she doesn't use." [Sic], "buying clothes and swim suits to her family example on amex 9/26/2018 $109,7" [Sic], "sephora cosmetic on 10/12/2018 $179.64 amex, and on 12-3-2018 $89.28 for sephora", [Sic], "Her checking account gradually increasing monthly, she is earning money from child support even with unnecessary abused expenses for my son." [Sic], On 5/26/2019 while I was exchanging out son with sveta [Sic], sveta [Sic] complain for money that I was giving $200 monthly due to unemployment. I said what have you doen [Sic] with the $1900 monthly child support that I gave you previously. She said it is not my job and she can do whatever she wants." [Sic], "She shares home and utilities, she doesn't need that much money to support our child. She will not share the home forever." [Sic], "If she is having difficulties to take care our son , she should give the baby to me, marital house already getting paid my mother. Our son can stay with us and my mother and me can look after our baby free. Our baby will not face the risk of adultery at home due to her sister and her oy [Sic] friend at home around 25 years old," [Sic]. The Defendant further asserts the following which was taken from the Reply Affidavit of Plaintiff dated January 2, 2020 "Based on the foregoing, I charge respondent with an unlawful discriminatory practice relating to employment because of national origin, religion/creed, hostile work environment, as well as retaliation for opposition thereof, in violation of the New York State Human Rights Law (Executive Law, Article 15), Section 296" [Sic]. It is clear from the above statements that the Defendant does not understand the Child Support Standards Act and the purpose of child support and maintenance and that the Plaintiff is not accountable to him.
Defendant is presently in the middle of trial, each party seeking custody of the child age 3
--------
It is well established that, any perceived inequities in the pendente lite award can be best remedied by a speedy trial, at which the parties' financial circumstances can be fully explored (see Sinanis v. Sinanis, 67 AD3d 773, 888 N.Y.S.2d 606 [2nd Dept. 2009] ; Swickle v. Swickle , 47 AD3d 704, 705, 850 NYS2d 487 [ 2nd Dept. 2008] ; Stubbs v. Stubbs , 41 AD3d 832, 833 [2nd Dept. 2007] ; Barone v. Barone , 41 AD3d at 624 [2nd Dept. 2007] ).
At this time the Defendant's request is referred to the trial court and denied without prejudice and an expeditated financial trial is to be scheduled. It is clear from the Defendant's own statements that he blames the Plaintiff for his unemployment, and he is somehow able to meet substantial financial obligations while claiming his only source of income is unemployment. The Court bifurcated the issues of custody and financials. The custody trial has been commenced and is scheduled to continue on February 19, 2020, 9:30 AM- 1:00 P.M., March 25, 2020, 9:30 AM-1:00PM and March 26, 2020 2:15 P.M.-4:30 P.M.. At the completion of the custody trial, the financial trial shall commence.