Opinion
03-200872.
Decided August 8, 2011.
Deidre Foster, Esq., Foster, Vandenburgh Riyaz, LLP., Riverhead, NY, for the Plaintiff.
Rose Caputo, Esq., Nassau Suffolk Law Services Committee, Inc., Hempstead, NY, for the Defendant.
The court recalls its decision and order, dated June 29, 2011, and substitutes the following order in its place after review of the transcripts of the proceedings before Special Referee Lawrence Schaffer, dated July 20, July 30 and September 13, 2010.
Plaintiff former husband (hereinafter referred to as the "husband') moves to confirm portions of the report of the Special Referee, Lawrence Schaffer, dated November 23, 2010, which found that the husband had established a change of circumstances warranting a modification of an existing order of support for the defendant former wife (hereinafter referred to as the "wife'), in that husband was unable to earn the income that he was earning at the time of the divorce and separation, but moves to reject that portion of the report that recommended a downward modification only to the extent of reducing maintenance from $2,400.00 to $2,000.00 per month. The husband also seeks an order modifying and or making new findings upon an error in calculation in the November 23, 2010 report and upon a mistake of fact about whether or not certain funds transferred from the husband's father to the husband were gifts and because the husband no longer receives such gifts as the funds are exhausted, and directing that the husband's maintenance obligation be reduced to $978.00 per month. The wife opposes confirmation of the Special Referee's report on the ground that the finding that the husband had established a substantial change in circumstances is not supported by the facts or the law.
The report of the Special Referee recites that it was called upon to "balance the needs of a disabled woman who was granted permanent non-durational maintenance after a marriage of 29 years, with the diminished ability of a man who is now disabled" and the weighing of the factual assertions of the witnesses and their credibility is evident throughout the report. The Referee credited the testimony of the husband's treating physician, Dr. Goldenberg, that the husband had been diagnosed with acromegaly, a condition that resulted in the excessive production of human growth hormone resulting from a pituitary tumor, that he had undergone brain surgery for removal of the pituitary tumor but still had the elevated hormone levels of acromegaly that required treatment with Somavert. The doctor testified that the husband experienced physical fatigue, blurred vision, headaches and diminished comprehension, which were, in fact, the usual and customary side affects of Somavert, and that the husband was medically disabled from continuing in his prior employment position as a commercial and residential mortgage broker but could probably do consulting work. Moreover, the record reflects that, despite the husband's testimony that he presently only receives Social Security disability payments of $2068.00 per month, which he points out is less than the $2,400.00 per month maintenance sum he agreed to pay his former wife, for the past four (4) years, during his health problems, he has supported himself and his present wife and child with funds taken from a joint account held with his father, from which the husband wrote out checks mostly to his present wife, Joanne, totaling $164,000.00. Additionally, the record reflects that, although the husband's present wife receives income from Social Security disability benefits and a small pension totaling only approximately $2,000.00 per month, all of their monthly expenses, listed as $6,178.00, including the mortgage on the home owned by the wife, home and car insurance, the wife's car payments, credit card debt and the husband's attorney's fees are all up to date.
The Special Referee concluded, denoted hereinafter in bold print, that, although the husband established that he was unable to earn the income he was earning at the time of the divorce and separation and that he is presently receiving Social Security disability benefits of only $2068.00 per month,
. . . the evidence established that .this was not the only funds that are available to the plaintiff. Between 2007 and 2010, plaintiff has written checks totaling $164,000.00 made out to his current wife. This is from the bank account that plaintiff maintains in a joint account he has with his father. He asserts that these are his father's funds and are only in a joint account for convenience so he can disburse them for his 87 year old disabled father. Notwithstanding this assertion, he has complete control over this bank account and has written a substantial amount of checks to himself, his wife and others over the past three years. Plaintiff continues to maintain power and control over this joint account. He freely withdraws money from this account when the needs of his family call for it (emphasis in the original).
(Report of the Special Referee, annexed to the moving papers as Exhibit "A").
The Special Referee noted that the husband had been "less than forthcoming and inconsistent" with respect to his real and personal property transactions. The record reflects that the husband's father's residence is in the husband's name and the expenses for same are listed on the husband's statement of net worth yet are paid for with the father's money; that the husband's residence is owned by his current wife yet expenses for said residence are not listed on the husband's statement of net worth because he claims he does not own the home, that the husband unilaterally reduced his support payments to his former wife by half-to $1,200.00 per month, by claiming that he had exhausted the funds borrowed from his father, yet he wrote checks from said account to his current wife in the sum of $39,800.00. The Special Referee found that, based on the totality of the circumstances, there should be a downward modification in the sum of $400.00 per month and that the husband should be directed to pay $2,000.00 monthly to the former wife as permanent non-durational maintenance.
The Law and Analysis
CPLR Rule 4403 directs as follows:
Upon the motion of any party or on his own initiative, the judge required to decide the issues may confirm or reject, in whole or in part, the verdict of an advisory jury or the report of a referee to report; may make new findings with or without taking additional testimony; and may order a new trial or hearing. The motion shall be made within fifteen days after the verdict or the filing of the report and prior to further trial in the action. Where no issues remain to be tried the court shall render decision directing judgment in the action.
. . . [A] party seeking a modification of the maintenance provisions of a divorce decree reflecting the terms of a stipulation of settlement, which has been incorporated into, but not merged with that judgment, should be required to demonstrate that the continued enforcement of those provisions previously agreed to by the parties would create "extreme hardship".
( Pintus v. Pintus, 104 AD2d 866, 480 NYS2d 501 [2nd Dept. 1984]; see also, Cashin v. Cashin , 79 AD3d 963 , 913 NYS2d 321 [2nd Dept. 2010]; Morrisey v. Morrisey, 61 AD3d 753, 901 NYS2d 545 [2nd Dept. 2010]). Domestic Relations Law § 236 (B)(9)(b), in pertinent party, directs as follows:
Where, after the effective date of this part, a separation agreement remains in force no modification of a prior order or decree incorporating the terms of said agreement shall be made as to maintenance without a showing of extreme hardship on either party, in which event the decree or order as modified shall supersede the terms of the prior agreement and decree for such period of time and under such circumstances as the court shall determine.
As set forth in Pintus v. Pintus, supra, "[i]t should be noted that the above quoted portion of Domestic Relations Law (§ 236, part B, subd. 9, par. b) makes a significant change in the prior law regarding the modification of the maintenance or alimony provisions of an unmerged separation agreement and stipulations of settlement, by permitting the court to supercede the applicable terms of the agreements themselves, as well as the judgments of divorce into which they are incorporated" (citations omitted).
In the case at bar, although the infirmities of age and, perhaps, the husband's inability to earn as he has in the past has taken a toll on the husband's finances, it is the judgment of the court that the husband has not demonstrated extreme financial hardship which diminishes his ability to maintain his lifestyle, brings him below any poverty guideline, or compels him to liquidate assets or incur huge unmanageable debt. "Extreme hardship" is not merely the medical consequences of a maturing life but its plain meaning calls for a substantial dislocation of financial circumstances so that the litigant is nearly without resources or shelter, factors not present herein.
After a careful reading of the submissions herein, the Court rejects the report of the Special Referee to the extent that it found that the husband had established "a change of circumstances" to warrant the reduction of maintenance from $2,400.00 per month to $2,000.00 per month. The court also rejects the husband's post-hearing documentary submissions allegedly demonstrating that he has depleted his father's funds and that no checks have been written from said accounts since March 2010. Such evidence is dehors the record and could have been presented at the time of the hearing but was not. The court finds the further contentions of the husband to be without merit.
Based on the foregoing, and after review of the transcript of the proceedings provided on the motion, it is hereby
ORDERED, that the report of the Special Referee Lawrence Schaffer, dated November 23, 2010, is rejected to the extent that the Court finds that the standard of "extreme hardship" has not been demonstrated and no downward modification of the former wife's lifetime maintenance award is warranted.; and it is further
ORDERED, that the husband shall settle judgment on notice.
This constitutes the decision and order of the court. All further requested relief not specifically granted is denied.