C.G., Plaintiff,
against
R.G., Defendant.
|
51073/2005
For Plaintiff;
Victor Mevorah, Esquire
100 Garden City Plaza
Suite 400
Garden City, N.Y. 11530
For Husband:
Self represented
For children:
Ralph Porzio, Esquire
686 Forest Avenue
Staten Island, NY 10310
Catherine M. DiDomenico, J.
By Summons filed December 5, 2005, Plaintiff C. G. ("Wife" or "Mother")
commenced this action for divorce against Defendant R. G. ("Husband" or Father"). A
Verified Complaint was filed by Wife, then represented by Alison Aplin Esq., and served
on or about March 16, 2006. A second Verified Complaint was apparently filed by
Wife's second attorney Valarie Van Leer-Greenberg on or about May 9, 2007. After a
review of the official Court file, of which the Court takes judicial notice, there is no
indication that Husband ever filed an answer to either complaint, or asserted any
counterclaims. See Walker
v. City of New York, 46 AD3d 278 (1st Dept. 2007).
The parties were married on March 11, 1990 in a religious ceremony. There are three
issue of this marriage: Jo.G. ; J.G. and J.L.G. By Consent Order dated December [*2]12, 2006, Defendant Father was granted sole legal and
physical custody of Jo.G. as the parties agreed that Father was in the better position to
meet Jo.G's psychiatric needs. Plaintiff Mother was granted an Order of Visitation (See
Order dated 9/17/08). Jo.G. aged out of the custody jurisdiction of this Court during the
pendency of the proceeding. Jo.G., now 21years old, has a reported diagnosis of
Attention Deficit Disorder, Generalized Anxiety Disorder and Obsessive Compulsive
Disorder. A forensic evaluator herein, Stephen Herman, MD, vehemently disagrees with
these findings believing that a more accurate diagnosis of schizophrenia is warranted.
During the course of these proceedings, Jo.G. has remained in the physical custody of the
Father with whom he lives today.
By Consent Order dated December 12, 2006, Mother was granted an Order of Sole
Legal and Physical Custody of the children J.G. and J.LG. However in or around March
of 2010 Husband made an application for a change in custody which was referred to trial.
Husband's application for a change in custody was resolved by on or about March 3,
2011 when he consented to Mother having custody, for a second time. Mother retained
physical custody of these children until on or about June 26, 2012 when a mold condition
in the marital home resulted in the children changing their residence to that of their
Father until such time as the issue was remedied. In addition to mold from water seepage,
the waterfront former marital residence also sustained significant damage in Hurricane
Sandy including the erosion of a significant portion of the yard.
During its pendency, this case has been assigned to a number of judges and special
referees before it was assigned to this Part for trial.[FN1]
Throughout the course of this litigation, twenty-seven motions were collectively filed by
the parties. Plaintiff Wife was represented by Ms. Allison Aplin Esq. from the
commencement of this matrimonial action until March 8, 2007 when Ms. Valerie Van
Leer-Greenberg Esq. was substituted in as Plaintiff's attorney.[FN2]
Ms. Van Leer-Greenberg represented Wife until June 12, 2009 when she withdraw as
counsel alleging that Husband failed to comply with the Court's counsel fee awards to
Wife. Plaintiff remained self represented from Ms. Greenberg's [*3]withdrawal to February 22, 2010 when this Part appointed
Mr. Mitchell Newman Esq. as Wife's attorney for the issues of custody and visitation. On
or about November 17, 2010, Mr. Newman made an application to be relieved as Wife's
counsel which was granted without opposition. On or about December 3, 2010 Wife
hired a privately retained attorney, Mr. Victor Mevorah Esq. Various scheduled trial
dates were vacated to allow Mr. Mevorah an opportunity to prepare for trial. In
December of 2011, on the eve of trial, Mr. Mevorah moved to be relieved as counsel
based on, among other issues, Wife's inability to pay any further legal fees. His
application was denied.
Defendant Husband was represented by Mr. Robert Schwartz Esq. at the
commencement of this action until October 26, 2006 when he was relieved on consent.
Defendant proceeded Pro Se until October 12, 2007, when the law firm of Kasowitz,
Benson, Torres & Freidman, LLP substituted in as counsel. On or about August 6,
2008, this firm was relieved by Defendant based on his alleged inability to pay, subject to
various charging and retaining liens. (See Consent to Change Attorney dated August 6,
2008). Husband represented himself until May of 2010 when he retained Ms.
Anne-Louise DePalo Esq. Ms. De Paolo was relieved on consent by Order dated January
12, 2011 when Husband claimed he could no longer afford to pay her. Defendant
represented himself at trial though he admits that he utilized the services of a "ghost
attorney" to assist him with the preparation of documents at various times throughout the
proceedings. Throughout this long litigation, Defendant Husband also utilized the
representation of a real estate attorney, and at least one other matrimonial attorney.
By Preliminary Conference Order dated February 21, 2006, the parties agreed that
Wife would be granted a divorce on the grounds of constructive abandonment. This
agreement was further codified in a Short Form Order dated March 21, 2010. On or
about January 24, 2006, Defendant Husband was arrested which resulted in a criminal
case being commenced against him which was subsequently transferred into the IDV Part
(Adams, J). A Temporary Order of Protection was issued in favor of Wife and against
Husband. Due in part to the pending criminal case, Husband was ordered to have visits
with his daughters supervised by Ms. Diane Hesseman L.M.S.W.
By Order dated April 28, 2006, Dr. Stephen Herman was Ordered by the
Court to conduct a forensic evaluation of the parties and subject children with
recommendations as to custody and visitation. Dr. Herman's initial report dated
November 10, 2006 recommended an award of custody of J.L.G and J.G. to Mother with
an award of unsupervised visitation to Father (Pl. Ex. 38). At a court appearance before
Justice Aliotta on December 12, 2006, wherein he was advised of this recommendation,
Husband consented to an Order of Sole Custody to Wife and Wife consented to an Order
of unsupervised visits for Husband. (See Order dated 12/16/06). Despite this Consent
Order, Wife credibly testified at trial that Husband called ACS a number of times
alleging that she committed acts of neglect against the children. The Court notes that all
of these child protective services investigations were deemed unfounded after [*4]investigation. Wife further testified, and Husband admitted
that he also employed, at various times, a private investigator to follow Wife. Wife
credibly testified that she believed the investigator was hired in an effort to compile
evidence to use against her in these proceedings.
On June 25, 2007, the criminal case against Husband was tried and
dismissed by the Hon. Karen Rothenberg. The companion Family Court docket, a Family
Offense Petition (Docket O-3762/08) brought by Wife against Husband was tried before
this Part in March of 2011. By Short Form Order dated March 9, 2011 this Court
dismissed Wife's Petition as she failed to meet her burden of proving that Husband
committed a specified family offense. On that date Wife's Temporary Order of Protection
was vacated.
After Wife's Family Offense Petition was dismissed, Husband commenced a
Civil Court action alleging false arrest and other charges against Wife and the City of
New York. During the course of the present divorce trial, Husband testified that the Civil
Court action was resolved in his favor after he obtained a default judgment against Wife
in the amount of $300,000. This default judgment was based upon Wife's failure
to appear in court. Wife attempted to explain her non-appearance in Civil Court by
claiming that she arrived late, encountered Husband in the courthouse and that he falsely
told her that the matter was adjourned. Husband has recorded the default judgment
against the marital home. Wife claims that the judgment was levied against the home to
defeat any possible award of equitable distribution she may receive with regard to this
property. Despite her claims of fraud, Wife has never moved to vacate the default
judgment against her.
Prior to the Consent Order of Custody dated December 12, 2006, Rita Kaufman Esq.
of the Children's Law Center was appointed to represent the subject children J.G. and
J.L.G. (See Order dated February 21, 2006, Adams, J). Ms. Kathleen Garrigan was
appointed to represent the child Jo.G. (See Order dated March 14, 2006, Adams, J).
During the course of the litigation, among other motions, Husband moved on two
separate occasions before two different Judges to disqualify Ms. Kaufman and the
Children's Law Center on the grounds of alleged bias against Husband, and an alleged
inability to properly represent the interests of the subject children. These motions were
denied as was Husband's motion to renew and reargue the same.
After custody of J.G. and J.L.G was resolved, for the second time, in March
of 2011, Ms. Kaufman and Ms. Garrigan were relieved as counsel. Ms. Garrigan was
granted a judgment and lien on the marital premises to satisfy outstanding Court Ordered
legal fees that Husband failed to pay. During the course of these proceedings Ms. Valerie
Van Leer-Greenberg Ms. Alison Aplin, and the law firm of Kasowitz, Benson, Torres
& Freidman, LLP were also granted judgments and liens on Husband and the
marital property at issue in this divorce.
By Pendente Lite Motion filed June 16, 2006 (Seq. No. 003) Wife sought, among
other relief, an award of temporary spousal maintenance, child support and counsel fees.
By Order dated October 4, 2006 (the "Pendente Lite Order'), Husband was ordered to pay
$4,000 per month in temporary maintenance and $2,294.24 per month
in temporary child support for a combined monthly total support award of
$6294.24 effective October 11, 2006. The Pendente Lite Order further directed
Wife to "maintain the marital residence including the payment of the mortgage, utilities,
car note and car insurance for herself, and school tuition for the two daughters". At that
time this Order was issued the mortgage payment alone was $6,400, which
amounts to approximately $100 more than Wife's combined support award.
Wife subsequently moved for an upward modification of the Pendent Lite Order. That
motion was denied by Order dated June 27, 2007. By Notice of Appeal dated July 24,
2007, Wife appealed the Order denying her upward modification to the Appellate
Division Second Department. In a written decision the Appellate Division denied Wife's
appeal. See G. v. G., 56 AD3d 424 (2d Dept. 2008).
In or around July of 2012, Husband made his second application for a change of
custody based on the physical condition of the marital home and the presence of
dangerous mold therein. On or about July 10, 2012 Ralph Porzio, Esq. was appointed to
represent the subject children J.G. and J.L.G. in relation to Husband's application. As
Husband alleged a change in circumstances and approximately six years had elapsed
from the first forensic evaluation, the Court appointed Dr. Peter J. Favaro Ph.D. to
conduct a second forensic evaluation. After receipt of Dr. Favaro's report Wife made an
application for Dr. Herman to prepare an update to his forensic report. Wife's application
was granted and Dr. Herman prepared an updated report on November 5, 2010.
On or about August 20, 2009, Wife was arrested based on a Criminal Court
Complaint sworn out by Husband. After a bench trial held on May 16, 2014 in the
Criminal Court (Mattei, J.), Wife was convicted of a violation of Penal Law section
240.26 (1) Harassment in the Second Degree. Wife was sentenced on May 30, 2014 to a
one year conditional discharge. A two year Order of Protection was granted in favor of
Husband subject to Family and Supreme Court Orders. This Order of Protection will
expire on May 29, 2016. On the same day she was sentenced by the Criminal Court Wife
filed a new Family Offense Petition against Husband (Docket O-2271/14), which
resulted in the issuance of a Temporary Order of Protection in her favor. However, this
matter was dismissed on August 6, 2014 when Wife failed to appear in Family
Court.
Throughout the course of this protracted litigation, the former marital premises has
been the subject of numerous foreclosure actions none of which have proceeded to a
foreclosure sale. In addition to the actions commenced against the marital home, an
investment home and dock purchased by the parties at * Harbor Court, Staten Island,
New York was foreclosed upon, and the parties' yacht was repossessed. Since the
commencement of this litigation virtually all of the assets owned by the parties have
either gone missing or have been drained of equity. Wife alleges that Husband has [*5]engaged in a pattern of delay and divert using multiple
courts, and countless tactical maneuvers to gain time to dissipate, dispose of or otherwise
unlawfully transfer away assets. Husband accuses Wife of delaying this litigation by
switching lawyers, asking for adjournments, and consistently arriving late for court
appearances. In short, each party blames the other for the failure of this litigation to be
brought to a close within a reasonable time period and for the emotional and financial
toll it has taken on their family.
Preclusion
Order
/i>
During the course of these proceedings Wife has made numerous
attempts to compel Husband to comply with her discovery demands. When Husband
failed to comply with Court Ordered depositions, a Judicial Hearing Officer was assigned
to preside over the examination. (See Order dated June 18, 2006, Minardo, J). Shortly
thereafter, J.H.O. Ajello made a recommendation to the Court that Husband be held in
contempt for his failure to produce documents or make himself available for the Court
Ordered depositions. By Report with Recommendations dated November 20, 2006,
Special Referee Faye DeGrimston recommended to the Court that Husband be precluded
from offering testimony as to "any of the financial issues upon which he failed to
disclose". Referee DeGrimston further recommended that all financial issues be resolved
in Wife's favor. According to Referee DeGrimston's report the only item of financial
discovery exchanged by Husband was a 2005 tax return.
On April 17, 2007 Wife moved by Notice of Motion to confirm the
Special Referee's Report. By Short form Order dated April 18, 2007 Referee
DeGrimston's recommendations were adopted by the then presiding Justice (Aliotta, J).
Accordingly, as of April 18, 2007 Husband was precluded from offering any financial
evidence at trial other than his 2005 tax return, and all financial issues were to be
resolved in Wife's favor. See Hartloff v. Hartloff, 296 AD2d 847 (4th Dept.
2002); See also, Pearl v. Pearl, 266 AD2d 366 (2d Dept. 1999);
Miceli v. Miceli, 233 AD2d 372 (2d Dept. 1996).
The Trial
After extensive motion practice, and extended conferencing, this bitterly contested
divorce proceeding was tried before this Court for at least twenty days spanning from
October 18, 2012 to April 17, 2014. Plaintiff Wife testified on her own behalf, and called
Husband and the first forensic evaluator, Dr. Herman, as a witness. Wife introduced
various documents into evidence (Pl. Ex. 1-41). Defendant Husband testified on his own
behalf and called Dr. Peter Favaro as a witness. Husband also introduced documents into
evidence (Def. Ex. A-R). Judicial Notice was taken of several documents (J.N. 1-28). In
camera examinations of the subject children J.G. and J.L.G. were held on April 17, 2014.
Both parties submitted questions for consideration at the in camera examination. After
numerous requests for extensions of time, written summations were received from all
parties on or before September 30, 2014. A "Rebuttal [*6]Summation" was submitted by Husband on October 29,
2014 in purported opposition to the summation submitted by Wife's counsel. A second
"Rebuttal Summation" was submitted by Husband on November 10, 2014. While neither
of these Rebuttal Summations were authorized by this Court, they were not objected to
by either Wife's attorney, or the attorney for the children and accordingly were
considered for the limited purposes indicated below.
For the reasons set forth below, a Judgment of Divorce is hereby granted to Wife on
the grounds of constructive abandonment pursuant to DRL '170(1). A Final Order of
Sole Legal and Physical Custody of the two subject children is granted to Husband with
substantial parenting time awarded to Wife as delineated herein. The issues of equitable
distribution, maintenance, child support and counsel fees are decided as set forth
below.
Factual Findings
/i>
At trial, both parties testified as to a litany of events that occurred during the
course of their marriage and throughout the course of this bitter litigation. Rather than
recount each and every incident, this Court makes the following findings of fact
regarding those events deemed most significant to this Decision.
A. Plaintiff Wife
Plaintiff Wife is currently 54 years old (dob 11/04/60). Wife attended
Our Lady of Guadeloupe Elementary School, New Utrecht High School, and earned
approximately three years of college credits from Saint John's University. Prior to
marriage, Wife worked as a contract analyst for Paramount Pictures, and then for Money
Magazine. Wife stopped working sometime in 1997 when she became pregnant with the
parties' second child J.G. At that time, Wife's annual salary was approximately
$45,000. Wife credibly testified that the parties agreed that she would remain
home to raise the children. Wife has not worked outside the home since she left the work
force in 1997. She claims that she lacks marketable skills based on her age, her lack of a
college degree, her unfamiliarity with modern technology and her deteriorated health.
Throughout the marriage, Husband would deposit funds by check or wire into Wife's
checking account for her clothing, food, shopping, and other discretionary expenses. He
also gave her cash whenever requested and frequently showered her with luxurious
gifts.
B. Defendant Husband
Husband is a former holder of a Series 7 license. He was employed with
J.T. Moran & Co., Inc. a now defunct "boiler room" broker-dealer. On February 7,
1991, Husband was convicted after pleading guilty to a federal felony information
charging him with one count of mail fraud in connection with his employment at Moran.
See [*7]United States v. R. G., 91
CR 25 (EDNY 1991). Thereafter, the Securities and Exchange Commission
commenced an administrative proceeding against Husband alleging that he executed or
facilitated a series of sham trades designed to generate false paper profits for the
company. See SEC v. John T. Moran, et.al, 92 CIV. 5209 (SDNY
1994) . On October 5, 1994, Husband settled with the SEC. Under the terms of that
settlement, he was barred from association with any SEC related entity with the right to
reapply after five years. Husband has not sought to have his license reinstated.
Husband claims that he works as a "consultant" for "The Damon Group"
with a partner named Mr. D. T. since he left J.T. Moran. Husband is compensated via
commission. According to his testimony, Husband is a consultant with employment
responsibilities including advising businesses how to restructure departments, the
leverage and renegotiation of debt, and advice on how to facilitate alternative financing.
(Tr. 6/04/13 pp.21-25) Husband is also involved in advising private firms how to become
public companies. In addition to his primary employment, Husband has also invested in
other business ventures, including but not limited to real estate companies, financial
consulting firms, a water filtration company, a landmark New York City restaurant, and
various movie productions. Husband has also worked as an actor in at least one such
production.
At trial, Wife credibly testified that Husband is a partner in Mr. D.T.'s firm
and that they "split" the profits on any deal they work on together. She further credibly
testified that Husband's work with Mr. D.T. is only one of many avenues of income
available to him. However, Wife's information regarding Husband's financial situation is
limited, and was actively frustrated, by Husband's failure to provide discovery. Husband's
failure to provide financial information ultimately lead to his preclusion from offering
testimony at trial.
Wife credibly testified that Husband controlled all the household finances
during the marriage. He decided what companies, projects, and parcels of real estate to
invest in, under what terms, and how much of an investment would be made. For
example, Wife credibly testified that Husband invested in "Vermont Water" a water
filtration company that ultimately went public in the year 2000 resulting in an
approximate $7 million dollar profit. (Tr., 6/04/13 pp. 58-59).
On January 25, 2006, Husband was excluded from the marital home located at ***
Boardwalk Avenue by Temporary Order of Protection issued by Criminal Court (Meyer,
J.). Husband then lived at various other residences including * Harbour Court, ** Mace
Street and ** Weaver Street, all located in Staten Island New York. The subject children
resided primarily with Wife until June of 2012 when the Court was advised that mold
existed in the former marital home, and that it was likely a safety hazard. By Order dated
June 26, 2012 the children were permitted to reside with Husband until such time as the
mold condition in the former marital home was remediated. By Order dated [*8]October 24, 2012, Defendant Husband was ordered to pay
for the mold remediation. On various subsequent court appearances Husband argued that
Wife was frustrating the mold remediation process by not allowing the workers access to
the home. Ultimately the mold was removed in or around June of 2013 after the
contractor was put on the record to describe the difficulties he was having with the
repairs. Despite the mold being removed, the Court allowed the children to continue to
primarily reside with Husband as the attorney for the subject children advocated that the
children wished to remain there and the circumstances had evolved such that a de novo
review of custody was warranted. Husband formally requested a change in custody by
Notice of Motion filed July 27, 2012 (Seq. No. 024). In an attempt to maintain frequent
contact, by Order dated March 15, 2013 Wife was awarded parenting time with the
subject children every day of the week with alternating weekends.
In or around December of 2013, Defendant moved with the subject children from **
Weaver Street to ** Dahlia Street a 5,000 square foot private home where he currently
pays rent in the amount of approximately $4,000 a month.
1. Income:
Throughout the course of this protracted litigation, and particularly during
the time this matter was before this Part, significant time has been spent attempting to
ascertain Husband's financial situation. To date, the actual source and amount of
Husband's annual income is uncertain. Defendant claims he works primarily as an
investment consultant to Mr. D.T. A trial, he testified that his salary is based solely on
commissions which vary on a monthly basis. For the period January through May 2013,
Husband testified at trial that he earned $18,000 in January, $15,000 in
February, "over $10,000" in March and April, and between
$15,000-$16,000 in May of 2013. (Tr. 6/04/12, pp. 24-25). The Court finds
Husband's testimony on the subject of his financial situation to be overly speculative and
not credible. Wife argues that the amount of income he claims would not be able to
sustain his affluent lifestyle. When asked what she reasonably believed Husband earned,
Wife testified that Husband earned an annual salary of somewhere around
$600,000 with peaks of close to $7,000,000 during the course of the
marriage, with his current income being approximately $800,000. (Tr. 6/10/13,
p. 37). When asked what basis she had for claiming Husband's income to be
$800,000, Wife testified that her children have more money than she does with
no charge card limit imposed by their father. (Tr. 6/10/13, p. 40-41).
As per the Preclusion Order dated April 18, 2007 Husband is precluded from
offering evidence regarding his finances other than his income in 2005 as that was the
only tax return he exchanged in discovery.[FN3]
That tax return indicates total income of $130,830. However, a review of his
contemporaneous sworn Statement of Net Worth dated December 5, 2005, which
annexes his 2005 return, lists monthly expenses totaling $22,018.00, an amount
not sustainable by his reported 2005 income. Moreover, in his Affidavit dated November
28, 2007, Defendant swore that his average gross annual income for the years 2001 to
2005 was approximately $410,504, a figure which is more reflective of his
sworn to monthly expenses. Accordingly, the Court shall use the sum of
$410,504 as his established earning capacity and impute that amount of income
to him. See Kessler v.
Kessler, 118 AD3d 946 (2d Dept. 2014); See also, DiPalma v. DiPalma, 112
AD3d 663 (2d Dept. 2013). In imputing income to Husband the Court has
considered Husband's lengthy testimony regarding discrepancies in his bank deposits as
compared to his tax returns. (Tr. 5/17/13, pp. 15-19). In 2006 alone Husband's tax return
indicates income of $51,609 while the deposits into his checking account during
that year total over $265,000. Husband's account of his finances is patently not
credible.
Husband claims, despite being precluded, that his income has dropped
significantly since the divorce action was commenced in December of 2005. While the
record is very limited as to Husband's income, the sums more recently claimed by
Husband could not sustain his lifestyle. Accordingly, even if Husband were not
precluded, the Court would likely find that Husband's expenses are the most clear
indicator of his actual income. See Hainsworth v. Hainsworth, 118 AD3d 747 (2d. Dept.
2014); See also, DeSouza-Brown v. Brown, 71 AD3d 946 (2d Dept.
2010). In this regard, Wife credibly testified that Husband currently employs the
services of a cook, driver, housekeeper, private tutors, and various babysitters. In
addition, Husband funds elaborate vacations for the children including trips to Bermuda
and Disney World. All three children have always attended private schools and J.G. and
J.L.G continue to do so at this time. Husband also fully supports Jo.G. Indeed, Husband
recently rented a 5,000 square foot home at a monthly rental of $4,000. not
including utilities and other related expenses. Husband also claims that the has faithfully
paid over $6,000 per month in support, on top of his expenses, for years,
although Wife claims he owes significant arrears as addressed later in this decision.
Finally, in what purports to be his first Rebuttal Summation, Husbands
admits that all of the income figures alleged in Wife's summation are, in fact,
lower than his actual income for those years. As indicated above, the Court has
considered Husband's rebuttal submission for this admission only. Husband's admission
is indicative of the discovery problems that plagued the pre trial proceedings and led to
the Order of Preclusion. Indeed, Husband's lack of credibility regarding his finances is
perhaps most evident by his attempt to explain the disparity between his admitted
monthly expenses and his reported income. Husband claims that he borrowed
approximately $150,000 from three friends, $100,000 from his parents,
and another "couple of hundred thousand" from his employer D. T. According to
Husband, there is written documentation supporting these debts though said evidence
was not even offered by Husband at trial. Husband further claims that none of these
lenders expect these sums to be repaid. Husband's arguments attempting to explain how
he could finance his lifestyle in light of his underreported income are patently
unbelievable.
The Subject Children
J.G. was born on October 1, 1997. She is currently 17 years old. She is in her
Junior at a parochial high school on Staten Island. J.L.G. was born on November 28,
2001 is currently 13 year old. She is in the 7th grade in a parochial elementary school on
Staten Island. Father has consistently paid their tuition, private tutoring, test preparation
and all other costs associated with their academics. Both children do well in school and
are well adjusted despite the disruption this ongoing litigation has had on their lives. J.G.
is currently researching out of state colleges and intends to reside on campus. Both
parents are supportive of her decision to live away at school. Father has agreed to pay all
attended costs. Father is not seeking any form of child support from Mother for either
child should he be awarded custody. This position, consistently maintained by Husband,
amounts to an express, voluntary, and knowing waiver of child support. See Stevens v. Stevens, 82 AD3d
873 (2d Dept. 2011); See also, O'Connor v. Curcio, 281 AD2d 100 (2d Dept.
2001); Matter of Hastie v. Tokle, 2014 NY Slip Op 08090 (3d Dept. 2014).
The Court notes in this instance that Husband is by far the monied spouse and has
provided financial support for the children throughout the course of this litigation
without financial contribution from Wife.
Since the condition of their home deteriorated in or around June 2012, the
children have resided with their father (See Order dated June 26, 2012). Jo.G. also
resides in the home, however, he is in and out of residential treatment for his psychiatric
condition. While Jo.G.'s behaviors have been regarded as distracting and annoying to
J.G. and J.L.G., neither child reports feeling afraid of Jo.G. No allegations of physical
[*9]altercations among Jo.G. and these children have
been reported. While Dr. Herman testified as to the urgent need for Jo.G. to be correctly
diagnosed and treated, Dr. Herman did not feel that Jo.G.'s presence in the home should
preclude the girls from living there.
The Forensic Evaluators.
By Order dated April 28, 2006, Dr. Herman was ordered to conduct a
forensic evaluation. By Report dated November 10, 2006, he recommended that an Order
of Sole Custody be granted to Mother for J.G. and J.L.G. which was consented to by
Father in a Consent Order dated December 12, 2006. Pursuant to that Order, the children
resided with Mother and visited with Father.
In or around May 2012, this Court was alerted to the deteriorated condition
of the children's home. After investigation, the Administration for Children's Services
issued a report dated July 10, 2012 which was made part of the Court's record that date.
After consideration of that report, and the testimony of the parties, this Court issued an
Order permitting the children to reside with father until such time as hazardous mold
condition was fully remediated. Mother was granted a liberal visitation schedule which
was to occur away from the mold infested home.Since the June 26th Order , J.G. and
J.L.G. have resided with Father and by all accounts thrived under his care. While the
mold condition was finally resolved in June of 2013, Husband maintained that the
children were doing much better in his care. In or around July of 2012 Husband filed a
motion for a change in custody, alleging a change in circumstances subsequent to the
mold. (Motion Seq. No. 24). Husband's application was referred to the trial. At the time
Husband filed his motion, the attorney for the subject children argued that the children
should remain in Husband's care. After considering the totality of the circumstances, and
not wanting to further disrupt the lives of the subject children, the Court allowed the
children to remain with their Father pending the completion of trial. Mother was granted
various Orders of visitation culminating in an Order of liberal visitation which permitted
her to see the children every week day and on alternate weekends. (See Order dated
12/10/13). Unfortunately, Mother did not avail herself of the vast majority of the
parenting time allotted under this Order, much to the disappointment of the children.
Father now moves for a change of custody based on Mother's failure to
provide a safe environment for the children, and based on the children's desire to remain
with him. By Order dated March 20, 2013, this Court appointed Dr. Peter Favaro to
conduct a second forensic evaluation based upon the alleged changed circumstances.
Despite being given an opportunity to do so, Mother initially failed to cooperate with Dr.
Favaro's evaluation. Accordingly, on June 27, 2013, Dr. Favaro issued a report with
recommendations to the Court. (AFC Ex. 10). However, as this report did not include
participation by Mother it was limited in scope and lacked probative value. On a record
subsequent to the receipt of the report, Mother requested another opportunity to
cooperate with the evaluation. In an effort to reach an equitable decision, with Mother's
participation, she was afforded a final opportunity to cooperate. On September 24, 2013,
[*10]Dr. Favaro submitted two updated reports which
included the participation of Mother. (AFC Ex. 11 & 12). In the final version of his
Forensic Report, Dr. Favaro recommends custody to Father with liberal parenting time
allotted to Mother.
As this recommendation differed from of that of Dr. Herman, made more
than six years prior, Wife made an application for an update of the initial report. Over
Husband's objection, the Court granted Mother's application to allow Dr. Herman to
update his report. Dr. Herman issued his updated Forensic Report dated April 18, 2014,
in which he changed his initial recommendation of custody to Mother and recommended
custody to Father. So by the time the trial concluded, both Dr. Favaro and Dr. Herman
ultimately recommended that Father be granted an Order of sole physical and legal
custody of J.G. and J.L.G, and further that the children be granted liberal visitation with
Mother. The position of the forensic evaluators is consistent with the position ultimately
taken by the attorney for the children. When asked at trial why he changed his position to
now support an award of sole custody to Father, Dr. Herman explained that much had
changed in the lives of the children since he made his initial recommendations several
years ago. For example, the children were much older, were better able to articulate their
positions, and had expressed sound reasoning" for their preferences. Furthermore, in Dr.
Herman's opinion, Mother seemed to have become significantly more unstable and less
of a consistent reliable resource for the children as they matured and their needs changed.
Custody
/i>
It is undisputed that an award of sole physical and legal custody was
previously granted to Wife on consent of Husband. However, it is well settled that an
agreement between parties is not permanently binding, as the Court retains jurisdiction
for the purpose of making such further custody decrees as it finds appropriate under the
circumstances existing at the time the application for a change in custody is made.
See Eschbach v. Eschbach, 56 NY2d 167 (1982). However, "where
parents enter into an agreement concerning custody it will not be set aside unless there is
a sufficient change in circumstances since the time of the stipulation and unless the
modification of the custody agreement is in the best interests of the child". Matter of Lazo v. Cherrez, 121
AD3d 999 (2d Dept. 2014). Once the door to the issue of custody has been
opened by a sufficient showing of a change in circumstances, the Court must determine
the best interests of the child by a "review of the totality of the circumstances." Matter of Weinberger v.
Monroe, 120 AD3d 583 (2d Dept. 2014); See also, Nusbaum v. Nusbaum, 106
AD3d 791 (2d Dept. 2013).
After reviewing the record, together with the motions filed by Husband, the Court
finds that Husband has met his initial burden of showing that a change of circumstances
existed such that a de novo review of custody is warranted. See Matter of Estevez
v. Perez, 2014 NY Slip. Op. 08430 (2d Dept. 2014). Husband has shown, in the
first instance, that the marital home where the children resided with Mother was
permitted to deteriorate to the point where it was no longer safe for the children to
remain there. A septic tank backup caused human waste to build up into the house,
unresolved [*11]leaks caused a severe mold condition,
and there were various species of fungi growing out of the carpet. Moreover, there was
intermittent heat and no air conditioning for a prolonged period of time. The mold
condition that existed in the basement was so severe that this Court felt in necessary to
Order ACS involvement. The Court finds that the deteriorated physical condition of the
home, coupled with Wife's inactivity in addressing the situation, and her acquiescence in
allowing the children to reside in a dangerous home, constitutes a sufficient change of
circumstances such as to permit Father an opportunity to be heard on his change of
custody application. See Matter of Hillord v. Davis, 2014 NY Slip Op 09131
(2d Dept. 2014); See also, Matter of Lore v. Scalfani, 114 AD3d 685 (2d Dept.
2014).
At trial, both parents blamed the other for the failure to maintain the former marital
home. Mother blamed Father for not paying for the repairs, and Father blamed Mother
for obstructing the repair process by diverting to her own use money he gave her for the
repairs and by refusing to allow repairmen access to the home. This Court finds that
while both parties are to blame for allowing their children's home to become
uninhabitable, it was Wife that allowed the condition to remain without taking proactive
action, and that she frustrated the repairs once they were Court Ordered.
Regardless of who bears the blame for relocation, it is undisputed that the children
were relocated to their father's residence. It is also clear to the Court that since that
relocation the children have thrived in the care of their Father. Moreover, since relocation
both of these children, now aged 17 and 13, have made their positions clear to this Court
during extensive in camera examinations, and through the advocacy of their counsel.
Moreover, the Court has given serious consideration to the undisputed fact that
Mother, for one reason or another, has not utilized the generous visitation schedule
afforded to her. While Mother initially claimed that she was unaware of the visitation
Orders which were asked for by her lawyer, discussed on the record, and granted in open
court, her testimony on the subject is not credible. Mother acknowledged the Order at
trial and admitted that sometimes the visits don't happen because the girls have plans, are
busy, or simply are not amenable to making time to see her. The children, on the other
hand, feel that it is Mother who fills her day with frivolous errands and tasks which make
her unavailable to them even though she is not employed at this time.
This Court also takes judicial notice of Mother's conviction after trial in the Criminal
Court of a violation of Penal Law section 240.26 (1), Harassment in the Second Degree,
for acts committed against Father. This Court also considers and takes judicial notice of
the sentence imposed on Mother as a result of that conviction which includes a one year
conditional discharge with the added specific condition that Mother enter into and
complete an anger management program, and that she abide by a two year final Order of
Protection in favor of Father.
Furthermore, despite her claims, Mother did not prove at trial that Father had
engaged in acts of alienation designed to estrange the children from her. While Wife
[*12]claims that Father seeks to exclude her from her
children, Dr. Favaro observed that "it is not readily apparent that mother makes any
independent effort, and appears much more likely to blame, than to exert effort" (AFC
Ex. 11, p. 10). This Court finds that it is Mother's passive, cavalier approach to spending
time with J.G. and J.L.G which has caused them disappointment and fostered any
reluctance they may have in bonding with her.
In short, the children feel that while Mother fights hard for them in Court, she does
not fight hard for them in life. These children need to be shown that spending time with
them is paramount to endless "errands" and Mother's busy lifestyle. The subject children,
now 17 and 13 years old, do not feel that they are Mother's priority at this time.
Moreover, on the subject of alienation, the primary example of alleged alienation alleged
by Mother against Father is that J.G. and J.L.G. have credit cards from Father and have
more money to spend than she does, thus humiliating her as a parent. Father's generosity
toward these children is not a basis for finding that he has alienated them from their
mother.
While neither of these parents are perfect, it appears that the children are thriving
with Father. The Court finds that Father presents as a more structured and focused
influence at this critical time in the children's lives, and the more stable parent. See
Matter of Crivelli v.
Tolento, 100 AD3d 884 (2d Dept. 2012). It is notable that while Husband is
involved in various business activities, he exhibits more time to devote to the children
than Mother, who is currently unemployed. Moreover, Wife's testimony at trial clearly
indicates that she sees Husband as evil, conniving, and manipulative and that to a certain
degree she feels jealous that Husband treats the children better than he treats her.
Accordingly, while both parties clearly bear animosity towards one another, the Court
finds that Husband is the parent more likely to foster the relationship with the non
custodial parent. See Matter
of Cobourne v. James, 35 AD3d 734 (2d Dept. 2006).
After consideration of the totality of the circumstances, this Court finds it is in the
best interests of these 17 and 13 year old girls for Father to be granted sole legal and
physical custody subject to Mother's parenting time. See Matter of Mack v. Kass, 115
AD3d 748 (2d Dept. 2014). After considering the voluminous documentary
evidence submitted at this trial, the testimony of the witnesses as observed by this Court,
and after considering Dr. Favaro's and Dr. Herman's thoughtful recommendations, the
Court agrees with the attorney for the child that while far from perfect, Defendant Father
presents as the parent better fit to be the sole custodial parent of J.G. and J.L.G and better
able to provide a stable, nurturing, environment for these children long term. See Matter of Andrews v. Mouzon,
80 AD3d 761 (2d Dept. 2011). The consistent opinion of two separate forensic
evaluators was afforded significant weight in this Court's decision. See Matter of Doyle v. Debe, 120
AD3d 676 (2d Dept. 2014); See also, Matter of Lynch v. Velella, 85 AD3d 1032 (2d Dept.
2011).
In awarding custody to Father, this Court has also given significant weight to the in
camera examinations of J.G. and J.L.G, who both presented as extremely bright [*13]and mature. See Matter of Hall v. Hall, 118 AD3d 879 (2d Dept. 2014); See
also, Matter of McVey v.
Barnett, 107 AD3d 808 (2d Dept. 2013). Despite Mother's claims, these
children did not appear to have been cajoled or brain washed into stating their
preferences. To the contrary, both children were highly articulate and candid with their
attorney and this Court in making their preferences known. After the privilege of
speaking to these children in camera, this Court remains baffled by the parents' inability
to appreciate the toll their nine year long battle has had on their children. As
stated eloquently by Dr. Favaro, it is beyond comprehension why they "refuse to drop
their swords to support and (especially in this case) enjoy the miracles they have
created.". (AFC Ex. 12, p.4).
Visitation
/i>
With respect to J.G., the Court notes that, by the time this Decision issues, she
will be in the second half of her Junior year of high school. Both parents support her
desire to dorm away at a college of her choice. Both parties agree that J.G. at her
advanced age is in a position to communicate with Mother to set up parenting time. The
Court acknowledges the attorney for the child's position that parenting time with Mother
should be at J.G.'s discretion rather than pursuant to a strictly defined schedule.
Accordingly, as to J.G., who will soon age out of this Court jurisdiction, Mother shall
have a liberal visitation schedule to be agreed upon between the parties with considerable
thought afforded to the wishes of J.G. This finding recognizes the reality of what is now
occurring between J.G. and Mother and eliminates any risk of further diminishing their
relationship by imposing a strict visitation schedule which would potentially subject her
to a contempt finding should she refuse to see her Mother pursuant to the mandated
schedule. As there is currently an Order of Protection in effect from Criminal Court
which prohibits communication between the parties, but has been made subject to the
Orders of this Court, the parties are hereby authorized to contact each other, via email or
text message, for the limited purpose of scheduling visitation between Mother and J.G..
Mother may also contact J.G. directly regarding visitation, provided Husband is informed
by text or email of the agreed upon times.
While there is support in the record for a finding of liberal, non structured,
visitation for the elder child J.G. the same does not apply to J.L.G., who is now 13 years
old. As the younger child, J.L.G needs a more stable and structured schedule. It is this
Court's expectation Mother (and Father) will respect the schedule Ordered herein as this
Court finds it to be in this younger child's best interest.
Accordingly, it is hereby Ordered that Mother shall have parenting time with
J.L.G. Monday through Friday from pick up at her bus stop until 7:00 p.m. with drop off
Father's residence, curbside. This curbside drop off shall not be a violation of the Order
of Protection. Mother shall also have parenting time with J.L.G. on alternate weekends
from Friday after school until Monday drop off at school. If there is no school on
Monday, then Mother shall have parenting time on her weekends until Monday at 7:00
[*14]p.m. The Court notes that this schedule is consistent
with Wife's current visitation schedule which she has been admonished to
utilize.
During their parenting time each party shall retain authority to make day to day
decisions while they are with the child. However, as to all major issues, Husband, as the
parent with sole custody, will have final decision making authority. Both parents shall
have unlimited access to the children's medical and educational records. However, each
parent shall be responsible for securing said information. Both parties shall be entitled to
attend all school, extracurricular and significant events in the subject children's
lives.
Father has testified at trial that he believes the parties can confer on issues
respecting the safety, health, welfare and education of these children. However, the Court
notes that there is currently a Criminal Court Order of Protection (Sciarrino J.) which
prohibits communication between the parties. This Order expires on May 29, 2016. To
this end, Mother shall have full access to all medical and educational providers of both
children as detailed above, and may contact Husband by email or text regarding the
safety and welfare of the subject children, and to facilitate visitation with J.G.
a. Holiday Time.
For the reasons set forth above, the following holiday and vacation schedule shall
only apply to the subject child J.L.G. While the Court encourages J.G. to follow a similar
schedule, it will not be mandated after considering her stated wishes, and her advanced
age and maturity.
The parties shall alternate all of the major holidays and school vacations as set
forth below. As a general rule Holiday time shall override periods of normal visitation
and a specific holiday will override a school break period for that day. Parenting time
shall commence at 10:00 a.m. on the first day of the holiday or vacation period and shall
conclude 8:30 p.m. on the final day of the visit unless otherwise specified below. Mother
shall pick J.L.G. up from Father's home curbside at the start and conclusion of holiday
and vacation time.
Holidays that fall on school days such as Halloween and the child's birthday shall
commence at school dismissal (or 3:00 p.m. if there is no school) and end at 8:30 p.m.
Mother's parenting time for Christmas break, Spring break, and Winter break shall
include overnights for any weekday parenting time.
Mother's Day shall always be with Mother and Father's Day shall always be with
Father. Each parent shall have a total of two non-consecutive weeks of vacation with
J.L.G. during the months of July and August. One week shall be in July; the other week
shall be in August. Each party shall designate by email their vacation weeks by May 1 of
each calendar year or be subject to the other parent's designated weeks. Mother shall be
granted first choice in the event that both parties seek the same weeks provided she has
timely designated her weeks in accordance herein.
The following holidays shall be alternated:
J.L.G's Birthday:even years: Motherodd years: Father
Thanksgiving:even years: Motherodd years: Father
Christmas Eve:
Christmas Eve visit shall begin at 4 p.m. and end at 11 a.m. on Christmas
Day.even years: Fatherodd years: Mother
Christmas Day:even years: Motherodd years: Father
New Years Eve:
New Years Eve visit shall begin at 4:00 p.m. and end at 12:00 p.m on New
Years Day.even years: Motherodd years: Father
New Years Day:even years: Fatherodd years: Mother
Martin Luther King Day:even years: Motherodd years: Father
President's Day:even years: Fatherodd years: Mother
Good Friday:even years: Fatherodd years: Mother
Easter:even years: Motherodd years: Father
Memorial Day:even years: Fatherodd years: Mother
Fourth of July:even years: Fatherodd years: Mother
Labor Day:even years: Motherodd years: Father
Halloween:even years: Motherodd years: Father
Columbus Day:even years: Fatherodd years: Mother
Veteran's Day:even years: Motherodd years: Father
December Winter Recess: The parties will alternate Winter Recess with
Mother having weekday overnight visitation for the entire break on odd years and Father
having weekday overnight visitation for the entire break on even years.
February Mid Winter Recess: The parties will alternate Mid Winter Recess
with Mother having weekday overnight visitation the entire school break on even years
and Father having weekday overnight visitation for the entire break on odd years.
April Spring Break: The parties will alternate Spring break with Mother
having weekday overnight visitation the entire school break on odd years and Father
having weekday overnight visitation for the entire break on even years.
As the Court cannot reasonably anticipate every occurrence or event that may occur
which would require a slight adjustment or temporary modification of this schedule, the
parties are hereby authorized to agree to reasonable modifications, or additional visitation
time, in writing by text message or email. Such writing shall not constitute a violation of
the Order of Protection currently enjoining Wife.
Equitable Distribution
The Domestic
Relations Law recognizes that a marriage relationship is an economic partnership. As
such, during the course of a marriage spouses share in both its profits and [*15]losses. When the marriage comes to an end, courts are
required to equitably distribute both the assets and liabilities remaining from the
marriage. See Fields v.
Fields, 15 NY3d 158 (2010). A trial court considering the factors set forth
in the Domestic Relations Law has broad discretion in deciding what is equitable under
all of the circumstances. See Krolikowski v. Krolikowski, 110 AD3d 1449
(4th Dept. 2013). Indeed, when it comes to the equitable distribution of marital
property, Domestic Relations Law § 236 (B) (5) (d) (13) authorizes the trial court to
take into account "any other factor which the court shall expressly find to be just and
proper." Consequently, the trial court has substantial flexibility in fashioning an
appropriate decree based on what it views to be fair and equitable under the
circumstances. See Mahoney-Buntzman v. Buntzman, 12 NY3d 415
(2009). Equitable distribution does not necessarily indicate equal distribution.
See Henry v. Henry, 105 AD3d 903 (2d Dept. 2013). In making its
equitable distribution decision, the Court has taken into account that Husband has been
precluded from offering any testimony at the time of trial regarding financial issues and
moreover that all financial issues are to be resolved in Wife's favor. The Court further
notes that Husband's failure to comply with discovery, together with his pattern of
dissipating assets, coupled with Wife's difficulties in articulately presenting her case
frustrated this Court's ability to fairly distribute the property accumulated by this parties
during the course of their marriage.
*** Boardwalk Avenue.
As with all of the financial issues raised in this matter, the evidence and
testimony offered in relation to the marital home was sparse and contradictory. It appears
from the record that the parties purchased the former marital residence, a two story,
approximately 4000 square foot single family ocean front home with 4 bedrooms and 4
½ bathrooms, in or around 1998 though Husband claims it was 1997 and Wife
1996. Husband testified at trial that the parties paid approximately $860,000 for
the house when it was purchased using funds obtained from the sale of marital property
in Brooklyn. At the time the marital premises were purchased, the parties took out a
mortgage the exact amount of which neither party could recall. At the time the Pendente
Lite Decision was written, the mortgage amounted to $725,000. (See Order
dated 10/4/06). Husband testified that he later refinanced the mortgage and took
additional equity in the approximate amount of $100,000 out of the marital
home.
Husband testified at trial that during the course of this protracted proceeding
he has continuously argued for the marital home to be sold. By Motion Sequence No. 21,
Husband moved for an Order appointing himself receiver to sell the marital home to
effectuate a contract of sale he had allegedly negotiated in the alleged amount of
$1,850,000, and to penalize Wife for not agreeing to the sale. In her opposition
to that motion, Wife pointed out that that contract would require her to pay
approximately $10,000 per month in rent to the buyer, who Wife alleged was
associated in some way [*16]with Husband. Wife has
consistently held that all of Husband's proposed transactions were actually "sham"
transactions between himself and his associates.
It is undisputed that the mortgage has not been paid since the inception of this action,
though the parties are still in possession of the home. Husband argues, correctly, that the
Pendente Lite Order required Wife to pay the mortgage. However, Wife testified at trial
that she was unable to pay the mortgage as Husband never paid the full amount of
support which, in any event, totaled less than the mortgage payment. In a Decision dated
June 27, 2007 (Aliotta, J), the Court noted that this home was already in foreclosure. By
the time of trial, the mortgage had not been paid in over 6 years. (Tr. 6/19/13 p. 47).
Husband testified that as of October of 2012 a total of $1.45 Million was owed on the
house together with penalties and fees. (Tr. 10/24.12 P11). It is fair to anticipate that this
amount owed has only increased while this decision was pending due to lack of
payments, late fees, penalties, court costs, lender fees and other costs. By all accounts
there is no equity left in this once valuable asset.
After considering the evidence in this trial, this Court finds that there is no
alternative but to sell the marital home with the proceeds of sale to be first applied to
mortgage arrears and other amounts owed to recorded creditors in accordance with
applicable law.[FN4]
Accordingly, it is hereby Ordered that the home be placed on the market by Husband
immediately. The home shall be sold by a licensed realtor to be selected by Husband with
a commission rate not to exceed five percent. The home shall be sold at a listing price to
be selected by the realtor with due consideration given to contemporary comparable sales
in the same market. Husband shall have the final decision making authority as to the final
sale price, but he must agree to any offer that comes within 5% of the realtors suggested
listing price. In the unlikely event there are any proceeds from this sale after all expenses,
liens and fees are paid, they shall be divided by the parties equally.
Wife shall continue to have exclusive use and occupancy of the home
pending sale, however Wife is hereby directed to comply with every aspect of the sale,
including allowing the realtor, inspectors or prospective buyers to view the home upon
24 hours notice. Wife is hereby specifically directed to not interfere with the sale in any
way. While Husband is being granted authority to make decisions regarding the sale,
Wife shall have full authority to inquire with the realtor regarding the status of the
sale.
The Court credits Wife's testimony that Husband was not consistent with his
maintenance obligation, and moreover that the amount awarded was insufficient to pay
[*17]the mortgage obligation even if he were consistent.
However, by Order dated October 4, 2006 Wife was obligated to pay the mortgage, an
obligation that was never modified by subsequent Court Order. Accordingly, crediting
both Husband's argument that Wife was the party responsible for the payment of the
mortgage, and Wife's claim that she was never awarded funds sufficient to do so, and
moreover that Husband did not consistently pay the support awarded, any debts, costs, or
penalties associated with the mortgage are to be split equally (50%/50%) between the
parties after the house proceeds are applied.
b.Vacant Lot (Block ****/Lot ** aka Leo's Lot).
Both parties credibly testified that during the course of their marriage, they
jointly purchased various lots of undeveloped land adjacent to the marital home. The
exact number of lots purchased is unclear, but it appears from the trial record that only
one such lot remains. During the course of this litigation, this lot has been referred to as
"Leo's Lot" adopting the name of an adjacent neighbor who had allegedly shown an
interest in purchasing the property. The official identification of this lot is Block
****/Lot **. The current status of this parcel of property is in dispute, Husband asserts
that the lot was previously sold along with a number of other vacant parcels. Wife argues
that the property is still owned by Husband.
This parcel of land is adjacent to the marital premises. It was purchased by
the parties subsequent to the purchase of the marital home and was titled solely in
Husband's name. By Court Order dated December 20, 2007, Leo's Lot was ordered to be
appraised by Wonica Realtors. By Order dated December 20, 2007, the parties agreed
that this lot, which had an agreed upon appraised value at that time of approximately
$325,000, would be sold with the proceeds divided equally between the parties.
There is no indication in the record that the parties complied with this Court Ordered
sale. To the extent that the lot currently exists, the parties are hereby directed to comply
with the Order directing its sale. As the market appraisal previously utilized to set a
listing price is likely stale, Wonica Realtors is hereby directed to sell the vacant lot at
current fair market value with the proceeds to be divided between the parties. Husband
shall have the final decision making authority as to the final sale price, but he must agree
to any offer that comes within 5% of the realtors suggested listing price. Wonica's
commission shall be at their usual and customary rate, but not to exceed five percent.
The Court notes that Husband testified at trial that this lot has already been
"sold" however no documents were offered at trial in support of this claim. Moreover, in
his "Statement of Net Worth Worksheet" dated July 10, 2012, Husband listed this vacant
land as an asset and indicated a purchase price of $125,000 (Def. Ex. A). In the
event that this lot was previously sold, Wife did not receive compensation for its sale.
Accordingly, Husband is hereby Ordered to produce any and all documents relating to
that alleged sale directly to Wife's counsel within 10 days and to pay Wife a distributive
award equal to one half of the sale price within 60 days of the signing of the Judgment of
Divorce.
c. * Harbour Court, Staten Island, New York with Boat Slip.
Husband testified that a condominium located at * Harbour Court in Staten
Island, New York, was purchased in 2005, during the course of this marriage, but prior to
the commencement of this action, for $530,000. Neither party ever resided in
this residence though Husband testified that he intended to live there with the children
after his separation from Wife. The parties invested the initial sum of $100,000
in cash which Wife credibly testified represented monies extracted from the equity in the
marital home when Husband refinanced. The remainder of the purchase price was
financed. Along with the property located at * Harbour Court, the parties purchased a
related boat slip. There is a failure of proof on the part of both parties as to whether this
boat slip was purchased as a separate entity from the condominium, or together with the
property. Wife testified at trial that Husband still owns this slip, though she offered no
evidence to substantiate this claim. Husband testified that the slip was lost to foreclosure
together with * Harbour Court based upon his failure to pay the mortgage.
By Consent Order dated December 12, 2006, * Harbour Court was Ordered
sold by then presiding Justice Thomas Aliotta. The parties agreed that the proceeds of the
sale would be held in escrow by Wife's then attorney, Ms. Alison Aplin. Despite this
Order, there is no evidence in the record that the home and boat slip were ever sold. Wife
argues that following the issuance of this Order, Husband immediately stopped paying
this mortgage and allowed the property to go into foreclosure. Husband testified at trial
that he was not earning enough money to pay the mortgage on both *** Boardwalk and *
Harbour, but his testimony is not credible in light of the Pendente Lite Order which
directed Wife to pay the mortgage related to *** Boardwalk and Husband's admission
that neither party paid the Boardwalk mortgage during the pendency of this action. There
was no evidence offered at trial as to any steps taken by the parties to comply with the
December 12th Order to sell the home while it still arguably had equity.
While there were no Orders concerning the payment of the mortgage on *
Harbour Court it is undisputed that Husband was the only income producing spouse in
this marriage, and the sole decision maker regarding the purchase and distribution of
property. Moreover, the Court issued an Order dated July 18, 2006 prohibiting Husband
from dissipating any assets and calling for the Status Quo to be maintained. See
Pascazi v. Pascazi, 52 AD3d 664 (2d Dept. 2008); See also, Drazal v.
Drazal, 122 AD2d 829 (2d Dept. 1986). As Husband failed to pay the mortgage
relating to * Harbor Court, and failed to comply with the sale of the home while it still
arguably had equity, his failure to act resulted in the wasteful dissipation of the equity
that existed in this property. See Maggiore v. Maggiore, 91 AD3d 1096 (3rd Dept. 2012);
See also, Noble v. Noble,
78 AD3d 1386 (3rd Dept. 2010).
There has been a failure of proof by either party to show any increase in the
equity of * Harbor Court between the time when the property was first purchased and
when the foreclosure action was commenced, as there was no evidence of mortgage
payments made during that time which might have accounted for an increase in the
equity in that property. Therefore, for the purposes of equitable distribution, * Harbor
[*18]Court is hereby deemed to be a dissipated marital
asset worth $100,000. This amount represents the parties initial cash investment
in the property.
As Husband's failure to pay the mortgage, and maintain the status quo,
resulted in the foreclosure of the property, the parties did not realize a return on their
investment. When the house was foreclosed upon, the loss of the parties initial
investment amounts to marital waste on the Part of Husband in the amount of
$50,000 representing Wife's one half share of the $100,000 investment
. To the extent that Husband claims that separate property was used to finance this
$100,000 down payment, his testimony was not credible. Moreover, Husband
has been precluded from offering evidence to the contrary of Wife's claim that the
$100,000 down payment was marital in nature. Accordingly, with respect to *
Harbour Court, Husband is hereby Ordered to pay Wife a distributive award of
$50,000 within 120 days of the signing of the Judgment of Divorce.
d. Husband's Yacht.
In 1999 Husband purchased a 53 foot "Carver" yacht, which he named
"Double J". This boat was obtained at an initial purchase price of $650,000. The
boat had three bedrooms, a dedicated captain, and staff who cleaned up after the parties
completed their use of the vessel. On September 5, 2006 Justice Rachel Adams issued an
appraisal Order directing Mr. Gilbert Cigal to appraise the boat. The cost of this appraisal
was assessed 100% to Husband. There is no indication in the record that Husband
complied with this appraisal Order. Neither party offered a boat appraisal as evidence
during this trial.
As with many of the now dissipated assets in this proceeding, the evidence
offered at trial regarding this boat is sparse. Husband testified that this yacht was docked
and maintained at Slip 28 of the Port Regal Marina in Staten Island, New York. Husband
testified that at the time the boat was purchased he financed the sum of approximately
$500,000 towards the purchase price with a monthly payment due of
approximately $5,000. Husband further testified that he paid an additional sum
of approximately $150,000 towards the purchase of the boat with money
withdrawn from a marital checking account. On October 7, 2006 this Court, with Justice
Rachel Adam's presiding, found that a $363,000 lien existed on the boat as of
that date. By Order dated December 12, 2006, the parties agreed to sell the "marital boat
immediately" with all proceeds to be held in Wife's counsel's escrow account.
It is undisputed this vessel was never sold as ordered. Wife credibly testified
that immediately following the commencement of this divorce action, Husband stopped
paying the loan on this vessel. Husband testified that the boat was "repossessed" in 2006
or 2007 but offered no proof to substantiate exactly what happened to this valuable asset
during the course of this litigation including the substantial amount of equity the Court
found existed in it as of the date of the Pendente Lite Order.
As Husband was indisputably the only income producing spouse in this
action, his failure to pay the loan, or to facilitate the sale of the boat as he was Ordered to
do, resulted in the wasteful dissipation of yet another of the parties' assets. Husband's
inaction in allowing the boat to be repossessed is in violation of this Court's Order dated
July 18, 2006 which prohibited Husband from "selling, transferring, or dissipating any
marital assets." Accordingly, Husbands' inaction amounts to marital waste. See Iwanow v. Iwanow, 39 AD3d
471 (2d Dept. 2007); Southwick v. Southwick, 202 AD2d 996 (4th Dept.
1994).
There was no evidence in the record as to the amount of depreciation
sustained by this asset prior to its repossession. Defendant Husband, however, has
introduced his "Net Worth Worksheet", which was received into evidence as Defendant's
A, in which he claims that the boat constituted a loss in the amount of $146,148.
Defendant's representation as to the loss sustained is a likely reflection of the minimum
value of the boat at or around the time it was repossessed. Therefore, the sum of one half
of this value or $73,074 is hereby attributed to Husband as marital waste
representing Wife's one half equitable share of that asset. See Sotnik v. Zavilyansky, 101
AD3d 1102 (2d Dept. 2012); Accordingly, with respect to the vessel "Double
J", Husband is hereby Ordered to pay Wife a distributive award of $73,074
within 120 days of the signing of the Judgment of Divorce.
e. Valuable Personal Property.
By Order dated December 12, 2007, the parties agreed that their attorneys
would go the marital home and the "new and current home" of Husband to "obtain for
sale by Sotheby's" various articles of personal property including a water color painting,
engagement ring, estate rings, Husband's collection of Rolex and Piaget watches among
other jewelry, and other art work and vehicles. The proceeds were to be divided equally
between the parties. At trial no evidence was submitted as to whether this Order was ever
followed or what happened to any of these items. On his Statement of Net Worth
Worksheet dated July 10, 2012, Husband indicated he still has a watch worth
$12,000 and a piano worth $10,000 (Def. Ex. A). Wife testified that
she is unsure as to what happened to any of these items, though she admitted to selling
one painting for $4,000 early in the divorce proceeding. (Tr. 6/10/13, p.20).
Husband claims that many of these assets still remain in the marital residence. Wife
claims that Husband took them and they have "gone missing".
In light of the parties' complete failure to satisfy their respective burdens of proof
regarding the existence or value of claimed personalty, this Court is unable to direct any
specific distribution of the items claimed by Wife or fashion a monetary distributive
award representing their value. See Grendel v. Grendel, 128 AD2d 834 (2d
Dept. 1987), leave dismissed 70 NY2d 693 (1987); see also, Alper v. Alper, 77 AD3d
694 (2d Dept. 2010); Michalek v. Michalek, 114 AD2d 655 (3rd
Dept. 1985). To the extent that these specified items of personalty still exist, the
parties are hereby Ordered to comply with this Court's prior Order dated December 12,
2007 which directed their sale at Sotheby's auction house. It is hereby Ordered that this
sale shall include the watch claimed by Husband worth $12,000 and the piano
worth $10,000 as those items were apparently not included in the prior Order.
All of the other items not specified in this Order shall be deemed the property of the
person to whom they are titled, or who currently possesses them, free and clear of any
claims against them. The proceeds of the Sotheby's auction shall be distributed equally
between the parties, however, Husband shall be entitled to a $2,000 credit
representing his one half share of the $4,000 painting admittedly sold by Wife.
Sotheby's shall be entitled to their customary fees and commissions.
f. Banks Accounts/Brokerage Accounts/Investment Accounts.
Wife credibly testified that although Husband had his Series 7 license
revoked for fraud after a federal criminal prosecution, he continued trading and investing
using other people's licenses. Wife further testified that it is her belief that Husband has a
number of investment accounts in other people's names to secret them from this Court.
Wife argued that her inability to identify the nature and value of these accounts was
caused by Defendant's failure to comply with numerous discovery demands and Orders
which culminated in his preclusion. Indeed, when Husband refused to submit to a
deposition on his finances, the then presiding Justice Ordered the examination to occur in
front of a Judicial Hearing Office (Aiello, J.) who recommended a contempt finding
against Husband. Throughout the course of this trial Wife has maintained that Husband
has secreted all of his assets to hide them from the Court.
During the course of her direct case, Wife called Husband as a witness and
examined him on the issue of his investment accounts. Wife also introduced various
documents into evidence showing Husband's account statements in the years 2000
through 2007. According to Husband's S.I.P.C. (Securities Investor Protection
Corporation) account statement from the year 2000 he maintained a marital investment
account with a balance of $1,011,541. (Pl. Ex. 14). Husband's 2006 Statement
of Net Worth, the only piece of financial discovery exchanged by Husband, makes no
mention of this investment account. When questioned as to where these monies went,
Husband indicated that he could not recall, but that he made a movie around that same
time. (Tr. 10/25/12, p. 39). In furtherance of her claims Wife offered into evidence a
similar S.I.P.C account statement from December of 2005, contemporaneous with the
[*19]commencement of this action, which indicates a
balance of $134,254. (Pl. Ex. 27). The Court notes that the last statement
submitted as evidence, from September of 2007 indicates a negative balance ($
-.30). As the valuation date of a marital asset is generally the date the action was
commenced, and it appears that this valuable asset no longer exists, Wife is hereby
awarded a distributive award in the amount of $67,127 representing her one half
share of this account as it existed at the time of commencement. See Michaelessi
v. Michaelessi, 59 AD3d 688 (2d Dept. 2009); See also, Sieger v. Sieger, 51 AD3d
1004 (2d Dept. 2008).
In addition to the S.I.P.C account statement from 2005, Wife introduced into
evidence a second "tax shelter" bank account statement from Citibank dated November
30, 2005. (Pl. Ex. 14) . This statement shows that prior to November 1, 2005 the account
at issue had a balance of $67,599 but as of November 30, 2005 the account
balance had decreased to $0. When questioned as to where these monies went,
Husband indicated that he "liquidated it". (Tr. 10/25/12, p. 31). As Husband admittedly
liquidated a marital account, without Wife's consent, just prior to the commencement of
this action in December of 2005, he is hereby Ordered to pay Wife a distributive award in
the amount of $33,800 representing her one half share in this now dissipated
marital account. See DeGroat v. DeGroat, 84 AD3d 1012 (2d Dept. 2011); See
also, Ferraro v. Ferraro, 257 AD2d 596 (2d Dept. 1999).
Other than the two account statements submitted by Wife, the only other
evidence of marital bank or investment accounts comes from the only piece of financial
discovery exchanged by Husband during the course of the pre-trial phase of this action, a
Statement of Net Worth dated March 15, 2006. (Pl. Ex. 35). In his Statement of Net
Worth, which was entered into shortly after the commencement of this action, Husband
identifies a "Southwest Securities" investment account with a balance of
$32,000, a "Guardian" life insurance policy with a cash surrender value of
$6,900, and a Citibank trust in the amount of $12,500. At trial there
was no testimony as to what ultimately happened to these assets, but Husband's updated
"Net Worth Statement Worksheet" does not indicate their existence as of July 2012.
Accordingly, Husband is hereby Ordered to pay a distributive award in the combined
amount of $25,700 representing Wife's one half share of these accounts as they
existed at or around the time of commencement. See Michaelessi v.
Michalessi, 59 AD3d 688 (2d Dept. 2009); See also, Ruane v. Ruane, 55 AD3d
586 (2d Dept. 2008); D'Angelo v. D'Angelo, 14 AD3d 476 (2d Dept. 2005).
All of the distributive awards Ordered under this section are to be paid
within 120 days of the signing of the Judgment of Divorce.
g. Fraunces Tavern.
Wife claims that during the course of their marriage, Husband purchased an
ownership interest in a famous Manhattan landmark restaurant, Fraunces Tavern, through
an entity known as 54 Pearl Street Associates. Wife testified that Husband owned this
[*20]restaurant with four partners. (Tr. 6/04/13, p. 56).
Husband admits that at one time he had a deal to invest $500,000 in the
restaurant, however he claims that he could not raise sufficient funds to cover that
amount. Ultimately Husband claims he invested the sum of $180,000 but pulled
the money out in 2005 or 2006. (Tr. 10/25/12 p. 13-15). Husband could not recall if he
withdrew his investment before or after the commencement of this action in December of
2005.
By Order dated March 2, 2010 BST Valuation and Litigation Advisors was
appointed to conduct an evaluation of the marital assets, including the marital interest, if
any, that existed in Fraunces Tavern at the commencement of this action. By report dated
November 12, 2010 BST found that "Mr.[ R.G.] did not hold an ownership interest in 54
Pearl Street Associates, Fraunces Tavern at the date of commencement of this action,"
and therefore found the further valuation was not required. As this action was
commenced in December of 2005 Husband could not have withdrawn his interest in
2006 as he suggested.
While the parties did not hold a marital interest in Fraunces Tavern at the
commencement of the action, this does not end the analysis. When questioned as to what
he did with the monies obtained from the return on his investment Husband testified that
he "used it for the marriage and did a lot of liquidating". (Tr. 10/25/12 p.15). The Court
does not credit this vague statement, especially when considering the timing of the
withdrawal shortly before the commencement of this action. Husband's testimony, and
the BST report, indicate that he withdrew the investment in 2005 (the year this action
was commenced), and Wife credibly testified did not receive any of the returns on the
investment. Moreover, the money from the investment was not included in Husband's
Statement of Net Worth which was filed in early 2006. Accordingly, the money
withdrawn from the marital investment in Fraunces Tavern, which was exclusively in
Husband's control, went missing along with many of the other assets to this marriage. As
Husband admits that he liquidated this marital investment but could not show where the
money went, Wife is hereby awarded a distributive award of $90,000
representing her one half share of the investment. The Court finds that, like many of the
parties' other assets, Husband wrongfully liquidated the parties' investment in Fraunces
Tavern and secreted the funds received. See Xikis v. Xikis, 43 AD3d
1040 (2d Dept. 2007); See also, Housset v. Housset, 200 AD2d 508 (1st
Dept. 1994). Husband's inability to "testify with specificity as to how" he spent the
$180,000 "suggests that [he] dissipated these marital assets in contemplation of
divorce." Abrams v.
Abrams. 57 AD3d 809 (2d Dept. 2008). With respect to Fraunces Tavern,
Husband is hereby Ordered to pay a distributive award in the amount of $90,000
directly to Wife within 120 days of the signing of the Judgment of Divorce.
h. Movies and Other Creative Endeavors.
During the course of this marriage Husband produced and acted in a movie
entitled "License to Steal" which was later released under the title "Kings of Brooklyn"
(hereinafter "The Movie"). This movie has been a constant point of contention between
the parties. Like all of the other assets once held by the parties the exact circumstances
surrounding the movie are a mystery. It is unclear exactly how much money was invested
in the film, but Husband estimates that he invested approximately $1.2 million dollars.
(Tr. 10/25/12 p. 17). Husband has alleged that the movie was the subject of at least one
alleged distribution deal in 2006 and another in March 2012 (See Affidavit of R.G.,
April 25, 2012; Mot. Seq. 20). Husband formed "Jana Films, LLC", a production
company, to produce and distribute "The Kings of Brooklyn". It is undisputed that the
movie was shown at least once at a film festival in Brooklyn, but that it was never widely
distributed. For the majority of this divorce proceeding the physical movie, which
Husband claims is the only copy, has been in the possession of Wife, however on June
10, 2013 the physical movie was surrendered to Court. Husband claims that this movie
has been wrongfully kept from him by Wife and he now seeks 100% of any proceeds
when he sells the film plus a $1.8 million dollar distributive award representing the sums
he would have allegedly received had Wife not thwarted the distribution of the film.
Wife seeks her marital share of the film, which she calculates at 50%, in the event that it
is every sold or distributed.
In addition to "Kings of Brooklyn", Husband also invested at least
$50,000 in other movie projects and scripts, but the parties never saw a return
on those investments. Husband represented to BST, the court appointed business
appraiser, that that none of these works resulted in any net profits and that Jana Films has
been dissolved.
As Husband has failed to establish the reasonable value of any of these
works, and moreover, that any willful act or omission on the part of Wife caused this
asset to dissipate, his claim for a distributive award of $1.8 Million dollars is hereby
denied. See Graves v. Graves, 307 AD2d 1022 (2d Dept. 2003); See also, Corbett v. Corbett, 6 AD3d
766 (3rd Dept. 2004). While Husband vehemently argues that Wife blocked his
access to at least two distribution deals, Husband failed to substantiate by documentary
evidence or witness testimony that any of the deals" in fact existed. Moreover, his
testimony on this subject of possible distribution deals was not credible and he remains
precluded from offering evidence relating to financial matters with those matters to be
resolved in Wife's favor.
Accordingly, Husband is hereby Ordered to retrieve the physical copy of the film
within 30 days of the date of this decision from the Court. Husband thereafter shall be
afforded exclusive use and possession of the film for the purposes of seeking to sell or
distribute it. Husband shall be the party with sole decision making authority regarding the
sale of the movie. In the event that the film is subsequently sold, the proceeds shall be
divided between the parties with 70% of the proceeds going to Husband and 30% going
to Wife. While the money invested in the film was marital in nature, Husband also [*21]actively contributed to the marketing and production of
the movie together with playing an acting role. Husband's non monetary contributions to
the movie added value above the value of the invested marital funds. See McCaffrey v. McCaffrey, 107
AD3d 1106 (3rd Dept. 2013). Equitable distribution is not always equal
distribution and in this instance the equities favor Husband receiving a larger share of the
asset. See Augustin v.
Bullen, 112 AD3d 658 (2d Dept. 2013).
In seeking to sell or distribute the film Husband is hereby Ordered to advise Wife,
within ten days of occurrence, of any and all negotiations, "distribution deals", draft
contracts, licensing, options or any other business transaction or negotiation involving
the movie. After compliance with this duty to notify, Husband shall have final decision
making authority with regards to the movie.
i. Pennsylvania Property
Husband claimed that marital funds were invested by Wife in two vacant pieces of
property located in Pennsylvania. Wife claimed these properties were inherited by her.
Beyond this basic information, neither party provided information to the Court sufficient
to allow for a thoughtful assessment of these properties as potential marital assets.
Accordingly, as there was a full failure of proof by both parties regarding the details of
these purported parcels, including block/lots, dates and details regarding their
acquisition, and any documentation regarding any alleged investment of marital funds,
proof of ownership, title, or value, the Court is unable to address the distribution of these
properties. See Fu Kuo Hsu v. Hsuan Huang, 149 AD2d 405 (2d Dept.
1989); See also, Reiner v. Reiner, 100 AD2d 872 (2d Dept. 1984); Antoian v.
Antoian, 215 AD2d 421 (2d Dept. 1995). In the event that these properties still
exist they shall hereafter be owned as titled. In the event that the properties are titled in
both parties names they shall be owned as tenants in common. See V.R.W., Inc.
v. Klein, 68 NY2d 560 (1986).
j. Pension/Retirement Accounts
While Wife testified that she believes Husband had a pension which he liquidated
during these proceedings, she has otherwise failed to provide admissible evidence
sufficient to prove the existence of any such pension. (Tr. 6/ 10/13, p. 25). No pension
was ever properly identified or appraised during the course of the discovery phase of this
proceeding which continued for several years before several judges and hearing officers.
While Husband has been precluded for his failure to provide discovery, this does not
eliminate Wife's burden of proof to show the existence of the pension as a marital asset.
As Wife failed to put even a basic framework of the value of the pension, where it was
obtained from, or the portion that was marital in nature, it cannot be distributed. See
Seckler-Roode v. Roode, 36
AD3d 889 (2d Dept. 2007); See also, Michalek v. Michalek, 114 AD2d 655
(3rd Dept. 1985).
Wife admits she has retirement benefits from her employment with Time Warner.
While Wife claims that this benefit is a "pension," a review of the record reveals that it
appears to be an employer match 401k. When asked whether this benefit was acquired
before or during the marriage Wife indicated that it was acquired both before and during
the marriage though she did not indicate, nor was she asked, how much she contributed
and when. Wife credibly testified that this account is currently worth approximately
$28,000. (Tr. 6/10/13, p. 23). The burden of proving the value of retirement
benefits rests on the party seeking an equitable share of that benefit. See Biagiotti
v. Biagotti, 97 AD3d 941 (3rd Dept. 2012). While Wife admitted the existence
of retirement benefits in response to direct questions from her attorney, Husband failed to
elicit testimony or submit evidence sufficient to establish the marital portion of this
benefit. Without knowing how much Wife contributed to her 401k during the marriage
the Court cannot determine the percentage of that account Husband would be entitled to.
See Majauskas v. Majauskas, 61 NY2d 481 (1984). Accordingly,
Husband failed in his burden of proof, and this asset will not be distributed. See
Shapiro v. Shapiro, 151 AD2d 559 (2d Dept. 1989); See also, Iwahara v.
Iwahara, 226 AD2d 346 (2d Dept. 1996). The Court further notes that at no time
during this trial, or in his post trial summation, does Husband clearly state that he is
seeking a portion of Wife's 401k. See LeVigne v. LeVigne, 220 AD2d 561
(2d Dept. 1995).
Maintenance
/i>
In both her first and second Verified Complaints, dated March 16, 2006 and May
9, 2007 respectively, Wife seeks an award of spousal maintenance. Even as early as the
Pendente Lite Order issued in this case, Judge Adams (then presiding) found that the
likelihood of Plaintiff Wife becoming "gainfully employed in the near future is remote"
(See Order dated 10/4/06). Based on that initial assessment, and for the additional
reasons set forth in that Order, Wife was awarded $4,000 per month in pendente
lite maintenance.
In her written summation after trial Wife requests an award of
non-durational maintenance in the amount of $10,000 a month. Wife
also seeks the payment of alleged arrears in relation to the temporary maintenance award
in the amount of $166,100. Husband opposes any award of final maintenance,
and claims that he has paid his temporary maintenance obligation in full.
While this decision is being issued in 2015, this action was commenced well
before the 2010 revisions regarding awards of maintenance. In determining whether to
award spousal maintenance under DRL §236(B), the Court must consider the
statutory factors in existence when this case was commenced. After consideration of
these factors, the factors deemed most relevant to the present matter are (1) the duration
of the marriage; (2) the present and future earning capacities of both parties; (3) the age
and health of the parties; (4) the ability of the party seeking maintenance to become self
supporting; (5) the [*22]wasteful dissipation of marital
assets; and (6) the standard of living established by the parties. See DRL 236 (B)(6);
Kaprelian v. Kaprelian, 236 AD2d 369 (2d Dept. 1997); Loeb v. Loeb,
186 AD2d 174 (2d Dept. 1992).
"The overriding purpose of a maintenance award is to give the [receiving]
spouse economic independence, and it should be awarded for a duration that would
provide the recipient with enough time to become self-supporting." Sirgant v. Sirgant, 43 AD3d
1034 (2d Dept. 2007). However, in certain circumstances, where it can be
established that the receiving spouse has little reasonable chance of becoming self
supporting, an award of non-durational, or lifetime maintenance is appropriate. See
Keane v. Keane, 25 AD3d
729 (2d Dept. 2006); See also, Wexler v. Wexler, 34 AD3d 458 (2d Dept. 2006). In
determining whether a award of non durational maintenance is appropriate, courts
consider the age and health of the movant, the duration of the marriage, the likelihood of
the movant spouse being able to find gainful employment, the parties pre-divorce
standard of living, their disparity in income and movant spouse's lack of future earning
potential. See Summer v. Summer, 85 NY2d 1014 (1995); Marino v. Marino, 52 AD3d
585 (2d Dep't 2008).
The parties were married in March of 1990 and this action for divorce was
commenced in December of 2005. Accordingly this marriage is one of 15 year duration.
Wife is 54 years old and has approximately three years of college credits from Saint
John's University. Wife has not been employed since 1997. In or around March of 2012,
Wife had an acute illness involving her ear which has had lasting effects on her hearing.
She also suffered a fracture to her leg which causes her lingering pain and a broken hip
which required surgery. (Tr. 11/1/2013). Wife credibly testified that during the course of
this prolonged litigation she was forced to borrow over $100,000 from her
family to meet her expenses, especially prior to the Court's entry of the Pendente Lite
Order.
It is undisputed that throughout the marriage Husband managed all the
marital finances and supported what can best be described as an affluent lifestyle. The
established standard of living during the course of the marriage has been afforded
considerable weight in this Court's determination of a maintenance award. At trial, Wife
testified at length as to the life that she has enjoyed. Wife credibly testified that Husband
would frequently shower her with extravagant gifts including furs, jewelry, Cartier
watches, artwork, clothes and whatever else she requested. Husband's income further
supported a waterfront mansion, investment properties, various luxury and collector cars
and a private yacht. The parties surrounded themselves with fine art work, fine watches
including a Rolex deemed by Husband to be worth at least $28,000, rare exotic
fish costing as much as $2,000 per fish, fine bottles of wine, and other items
only accessible to the very wealthy. Wife further credibly testified that she did not have a
budget, could spend freely without concern, and was never denied money when she
requested it. (Tr. 6/10/13 p.16-17); (Tr. 6/4/13 p.47-48;62).
During the course of this protracted matrimonial proceeding Wife has
struggled to maintain the lifestyle she is accustomed to, as her only source of income is
the support paid by Husband. Without contribution from Husband, Wife would not be
able to maintain a standard of living even remotely close to the standard of living she has
enjoyed during the marriage. Indeed, even with the amount of maintenance awarded
herein, Wife will be unable to maintain the luxurious lifestyle she once had. On the other
hand, Husband still maintains an extravagant lifestyle for himself and the children as he
still employs a cook, a housekeeper, a driver, a babysitter, tutors, and rents a 5000 square
foot home for $4,500 per month.
In the Pendente Lite Order, Justice Adams assessed very little chance of
Wife becoming self supporting, and the passage of time since that observation has only
supported it. Wife has not found employment for the duration of this proceeding and has
been living solely off the support from Husband together with monies borrowed from her
family.
The Court finds that Wife presents with marked limitations making it
virtually impossible for her to obtain and more importantly, retain, employment sufficient
to support herself. These limitations were discussed by both of the forensic evaluators in
this case. Dr. Favaro noted that while Plaintiff's home was organized, she otherwise
"appeared disorganized and chaotic" which made her "for the most part unable to make
and keep appointments." (AFC Ex. 11, p. 9). He further found her behavior to be
"extremely threat sensitive, to the point of making what appeared to be outrageous claims
". (AFC Ex. 11, p.9). Dr. Herman made similar observations, noting Mother's tendency to
go on unrelated incomprehensible tangents, her describing events surrounding this
divorce as "complete mysteries' much "like a deer in headlights", almost "childlike"
reasoning regarding the events relevant to this divorce and in short, consistently
"confused and mixed up." While neither forensic evaluator diagnosed Wife with any
mental illness, as Dr Herman indicated; "This style does not bespeak a psychiatric
diagnosis but, rather, a style of relating to the world—especially when under
stress." (AFC Ex. 14, p. 8). Clearly, these characteristics would not be consistent with the
skill sets required for sustained full or part time employment in today's economic market.
Rather, as suggested by Dr. Herman, Wife appears to be in need of mental health services
to address these manifestations and to create stability in her life.
In addition to the observations of the two forensic evaluators, with whom the
Court agrees, the Court has had the opportunity to observe Wife on a myriad of
occasions, and found that she presents with consistent pervasive limitations which
severely hinder her ability to secure and retain future gainful employment. Wife has a
chronic issue with lateness which manifested itself in various delayed court appearances.
Wife further often appeared disorganized and unfocused. These traits, among those
identified by the forensic evaluators, together with her age, her lengthy time spent away
from the workforce, and her complete lack of familiarly with computers and the internet
[*23]will likely prevent Wife from becoming a suitable
candidate for employment even remotely sufficient to support the extravagant lifestyle
that Husband has established for her. Moreover, Wife's stated career goals are unrealistic.
When Wife was asked what her employment plans are for the future, she reluctantly
responded that she, in essence, wanted to open up her own business where she would be
an advertising "middle man". (Tr. 12/3/13, p.15-16). For the reasons set forth above,
Wife's aspirations towards business ownership would appear very difficult to
achieve.
The disparity of income between the parties in this action is a factor which
has been afforded considerable weight by the Court. While Husband has been cagey
regarding what he actually does for a living, there is no doubt that he earns a substantial
sum of money doing it. For the reasons set for the above (see "Income"), and in light of
the Preclusion Order, this Court has determined that Husband's income should be
calculated at the imputed sum of $410,504 which represents his established
earning capacity and reflects his expenses. See Hainsworth v. Hainsworth, 118 AD3d 747 (2d Dept.
2014). The Court notes that this imputed income is significantly less than what Wife
believes that Husband is earning. Wife, on the other hand, is solely supported by the
funds that have been awarded to her throughout the course of this proceeding. Wife is
100% dependent upon Husband for support.
After considering the statutory factors, with substantial weight afforded to
the aforementioned factors, this Court finds that Wife has proven by a fair preponderance
of the evidence that she is "incapable of becoming self supporting at a level roughly
commensurate with the marital standard of living." Summer v. Summer, 85
NY2d 1014 (1995); See also, Bean v. Bean, 53 AD3d 718 (3rd Dept. 2008); Konigsberg v. Konigsberg, 3
AD3d 330 (1st Dept. 2004). Accordingly, this Court hereby awards Wife
non-durational maintenance in the amount of $6,000 per month subject to the
parameters indicated below. See Cohen v. Cohen, 120 AD3d 1060 (1st Dept. 2014); See
also, Steinberg v. Steinberg,
59 AD3d 702 (2d Dept. 2009); Polizzano v. Polizzano, 2 AD3d 615 (2d Dept.
2003).
While Courts have considered the effect of an eventual award of social
security to the party receiving maintenance and in some cases have tailored the
maintenance award to be reduced upon the receipt of benefits, in this case, the record is
devoid of any proof as to either parties eligibility for social security or as to the potential
amount of benefits. See Rodriquez v. Rodriquez, 70 AD3d 799 (2d Dept.
2010); See also, DiPalma v.
DiPalma, 112 AD3d 663 (2d Dept. 2013). However, as the Court is aware
that both parties are approaching social security age, Wife's receipt of social security
benefits shall be a change in circumstances such that either party may return to a Court of
competent jurisdiction for the purpose of modifying the maintenance award herein.
Moreover, the award of maintenance will terminate upon the death of either party, or
Wife's remarriage. See Domestic Relations Law § 236[B][6][c];
Gold v. Gold, 276 AD2d 587 (2d Dept. 2000). This award will be taxable to
the recipient and tax deductible to the payor. See [*24]Lee v. Lee, 18 AD3d 508 (2d Dept. 2005).
The first payment of the final award of maintenance shall be made within 20 days of the
singing of the Judgment of Divorce and subsequent payments shall be made directly to
Wife on the first day of each month thereafter. Until such time as the Judgment of
Divorce is signed, the Order of temporary maintenance shall continue. Child Support
/i>
At trial, Husband made clear that in the event that he were granted custody of the
subject children he would not seek an award of child support from Wife. (Tr. 6/19/13 p.
38-39). Husbands repeated statements, under oath, that he is not seeking an award of
child support from Wife constitute a knowing waiver of that right. Matter of Hinck v. Hinck, 113
AD3d 681 (2d Dept. 2014); See also, Matter of Tafuro v. Tafuro, 102 AD3d 877 (2d Dept.
2013); Stevens v. Stevens,
82 AD3d 873 (2d Dept. 2011). Moreover, during the course of this protracted
litigation Husband has never made an application for child support. Accordingly, child
support is not awarded at this time for the subject children of the marriage.
Retroactivity
Generally, an award of maintenance is retroactive to the date when the application
was first made. Caviolo v. Caviolo, 155 AD2d 410 (2d Dept. 1989).
Here Wife's first application for spousal support was made in her "first" Summons and
Complaint which was filed on December 5, 2005. Accordingly, the spousal maintenance
awarded herein is retroactive to that date. See Huffman v. Huffman, 84 AD3d 875 (2d Dept. 2011).
When calculating retroactive arrears Husband is entitled to a credit for maintenance
payments made under the Pendente Lite Order of this Court. See Higgins v. Higgins, 50 AD3d
852 (2d Dept. 2008). Accordingly, Husband owes Wife the sum of
$6,000 per month retroactive to December of 2005, with a credit due for each
payment of $4,000 made under the Pendente Lite Order. While Husband is
correct in arguing that he would be entitled to a credit for voluntary payments
allegedly made during the course of these proceedings, he has shown no credible
evidence at trial of specific voluntarily payments made. See Graham v.
Graham, 277 AD2d 423 (2d Dept. 2000); See also, Baraby v. Baraby, 250
AD2d 201 (3rd Dept. 1998). Moreover, even if Husband had provided evidence of
specific payments made, he would have also had to show that he had no legal obligation
to make those payments, and somehow differentiate payments made in support to his
Wife from payments made in support of his children, as no credit is awarded for
voluntary child support payments. See McKay v. Groesbeck, 117 AD3d 810 (2d Dept. 2014); See
also, LiGreci v. LiGreci, 87 AD3d 722 (2d Dept. 2011). Husband failed in
his burden to show voluntary spousal support payments. Accordingly, his application for
credit for voluntary payments is hereby denied. In fact, Wife [*25]credibility testified that he has not been fully compliant
with the Pendente Lite Order , and that he owes maintenance arrears totaling
$166,100. (Tr. 6/12/13, p.11); (5/17/13, p.9).
Husband admitted in his trial testimony that under the strict terms of the Order he
owes approximately $131,000 in arrears, subject to his argument regarding
voluntary payments addressed above. (Tr. 5/17/13, pp 52-53). However, the Court finds
Husband's testimony to be not credible, and moreover, not supported by the trial
record.
Given the amount of Husband's support obligation, and the aggressive litigation
between these parties on the subjects of finances and in particular, support, this Court is
shocked by the poor accounting, record keeping and lack of documentation offered by
Husband at trial. The Court notes that Husband testified at length as to his skill in
negotiating debt and his history of shrewd financial transactions, but that he was unable
to maintain even basic records of the amounts that the now claims he paid in support. At
best, Husband has maintained partial bank records, self supporting charts, and random
bank statements allegedly showing wire transfers of varying amounts from Husband's
accounts to Wife's. Husband also testified as to thousands of dollars of alleged random
cash payments with no accompanying credible receipts. Instead of making a single
$4,000 payment a month, Husband testified that he would frequently make
multiple payments in varying amounts at the alleged request of Wife. (Tr. 10/24/12 pp.
66-68).
Wife admitted at trial that Husband made certain payments under the Pendente Lite
Order. Wife claims that Husband owes her maintenance arrears under that order totaling
$166,100. Wife's counsel indicated that his inquiry of Husband at trial was
limited to the alleged payments that he did not have proof of. (Tr. 1/4/13, p.10) When
cross examined on the issue of arrears, Husband begrudgingly admitted that he has no
proof of payments made other than those admitted by Wife. (Tr. 1/4/13, pp. 5-7). While
Husband frequently made reference to documentation which would support payments
that he allegedly made, those documents are not in the trial record. Husband further made
reference to alleged audio tapes of Wife accepting cash payments, but those recording
were also not offered into evidence. (Tr. 1/4/13, p. 11). When asked if he had receipts for
the various payments at issue, Husband repeatedly indicated that he had no receipts. (Tr.
1/4/13, pp. 10-16). Accordingly, Husband has failed in his burden of showing that he has
paid the sums that Wife alleges he failed to pay.
As the party claiming arrears, Wife has the initial burden of showing non-payment of
support. See McLoughlin v.
McLoughlin, 74 AD3d 911 (2d Dept. 2010); See also, Miller v. Miller, 18 AD3d
629 (2d Dept. 2005). While Wife's testimony regarding arrears owed was far
from comprehensive, it was credible. Moreover, Husband's failure to provide discovery,
including receipts and other documentation relating to support, resulted in him being
precluded. By the terms of the Preclusion Order, dated April 18, 2007, all financial issues
are to be resolved in Wife's favor. [*26]Accordingly,
after considering her credible testimony, together with the terms of the Preclusion Order,
the Court finds that Wife met her burden of showing that Husband failed to pay the sum
of $166,100 in spousal support arrears. See Matter of Marra v. Hernandez,
102 AD3d 699 (2d Dept. 2013); See also, Matter of Peterson v. Peterson, 75 AD3d 512 (2d Dept.
2010). Husband's testimony that he only owes $131,000 under the terms of
the Order, but that he made voluntary payments which equal to more than that amount is
not credible, and not supported by the record. (Tr. 5/17/13, p 53).
As Wife is being awarded the sum of $6,000 a month, retroactive to the
commencement of this action in December of 2005, that amounts to 99 months of
payments running from commencement to the closing of the trial record in April of 2014.
Ninety nine months at $6,000 a month totals $594,000 in total
retroactive maintenance arrears. Husband is hereby credited for the undisputed
maintenance sums he paid under the Pendente Lite Order. This Order was issued in
October of 2006, but made retroactive to June of 2006. Under the Pendente Lite Order
Husband was directed to pay the sum of $4,000 a month, plus $500 a
month towards arrears. If Husband had been fully compliant with his temporary
maintenance obligation he would have made 95 payments at $4,000 a month,
between the months of June 2006 and April 2014. Ninety five payments at
$4,000 a month totals $380,000. Wife testified that of this sum
Husband currently owes $166,100 that he failed to pay, but she admits that he
paid the rest. $380,000 minus $166,100 equates to an admitted
temporary maintenance credit of $213,900. As the total sum of retroactive
arrears under the final maintenance award herein is $594,000, and Husband is
entitled to a credit of $213,900, he owes the balance of $380,100.
Accordingly, Husband is hereby directed to pay the sum of $380,100 in
maintenance arrears. This amount shall be paid in monthly sums of $2,000 in
addition to Husband's maintenance payment each month until such time as the arrears are
paid in full.
Life Insurance
It is generally appropriate to require a payor spouse to maintain a life insurance
policy sufficient to secure his maintenance obligation. See DRL 236 (B)(8)(a); See
also, Alleva. v. Alleva, 112
AD3d 567 (2d Dept. 2013). At trial, Husband testified that in or around January
of 2013, he established a $500,000 life insurance policy of which Wife is an
alleged 66.6 percent beneficiary and each of the three children are 11.3 percent
beneficiaries. ( Tr. 6/04/13, pp. 27-28). The amount of life insurance currently carried by
Husband is insufficient to secure his maintenance obligation to Wife. As no actuarial
evidence was offered at trial, the Court takes judicial notice of the most recent official
Center for Disease Control life expectancy table which found that the current life
expectancy is approximately 79 years old. See Vincent v. Landi, 2014 NY
Slip Op. [*27]08527 (3rd Dept. 2014); See also,
Holbrook v. Jamesway Corp., 172 AD2d 910 (3rd Dept. 1991); Sanchez v. State of New York,
22 Misc 3d 1125(A) (NY Ct. Claims 2008). As Wife is currently 54 years old,
Husband's maintenance obligation will likely run for at least the next 25 years. Husband's
prospective annual maintenance obligation amounts to $72,000 a year.
$72,000 for the next 25 years amounts to $1,800,000. Husband is
hereby Ordered to obtain, and maintain, life insurance of at least $1,800,000
with Wife named as the sole beneficiary for the duration of his maintenance obligation.
See Hartog v. Hartog, 85 NY2d 36 (1995); See also, Baron v. Baron, 71 AD3d
807 (2d Dept. 2010). Each year that Husband is compliant with the payment of
maintenance, he is hereby authorized to decrease the insurance policy to an amount
sufficient to cover his remaining obligation.
Counsel and Expert Fees.
/i>
As indicated above, each party to this action has been represented
throughout the course of this lengthy divorce by a number of attorneys, and various
attorneys have been assigned to the subject children. A review of the official Court File
indicates that a number of these attorneys have entered into Stipulations and Orders
securing their outstanding fees from the sale of the marital residence and therefore shall
be included as creditors relating to that sale. In addition, at least one attorney, Alison
Aplin Esq., has filed an action to recover the fees owed to her. That action is currently
pending before this Court. At trial, Wife only made a claim for Husband to pay for the
counsel fees due to her current attorney, Mr. Victor Mevorah Esq. Moreover, as Wife has
declined to call any of her prior attorneys as witnesses, Husband has not been afforded an
opportunity to contest their fees in an adversarial context. See Stang v. Stang,
173 AD2d 812 (2d Dept. 1991). In addition, billing information from any prior
attorneys has not been made part of the trial record. See Mimran v. Mimran, 83 AD3d
550 (2d Dept. 2011); See also, Darvas v. Darvas, 242 AD2d 554 (2d Dept.
1997). Accordingly, the only counsel fee request addressed herein is the request
relating to Wife's current attorney, Victor Mevorah Esq., who has been counsel of record
for Wife since December of 2010.
Wife seeks a final award of counsel fees in the amount of $110,000.
In support of her application Wife testified at trial, as did her trial counsel, Victor
Mevorah Esq. Both Wife and Mr. Mevorah credibly testified that Wife paid an initial
retainer of $25,000 and that Mr. Mevorah bills at a rate of $400 an
hour. Both Wife and Mr. Mevorah testified that Wife obtained this initial payment by
borrowing it from family. Since the initial retainer Wife has borrowed additional funds to
make three partial payments on her balance owed. In April of 2011 Wife paid the sum of
$8,000, in September of 2011 Wife made a payment of $4,000 and in
January of 2013 Wife made a payment of $3,000. The balance of Mr. Mevorah's
bill remains outstanding in the sum of $64,490 as of the last day of trial. (Tr.
4/30/13 p.87). Wife seeks an award of counsel fees in the amount of $110,000
representing the sums owed to her attorney together with a reimbursement of [*28]the retainer and partial payments. The sum of
$110,000 also includes counsel fees accrued after the last day of trial in the
preparation of post trial submissions.
At Husband's request, Mr. Mevorah was called to the stand as Wife's witness
regarding the counsel fee application and Husband was given the opportunity to cross
examine on the reasonableness and value of his purported fees. Finally, Wife offered
detailed billing documentation regarding the fees paid to Mr. Mevorah together with all
fees due and owing up until the close of the record. (See Pl. Ex. 41) Husband has not
objected to the billing documentation submitted, other than his arguments regarding the
reasonableness of the fees. (Tr. 4/30/13 p.80). The Court has reviewed Mr. Mevorah's
credentials and has determined that $400 an hour is reasonable for an attorney of
his experience in a case as complex as this matter.
An award of counsel fees pursuant to Domestic Relations Law § 237
(a) is a matter within the sound discretion of the trial court, and the issue "is controlled by
the equities and circumstances of each particular case". Morrissey v Morrissey,
259 AD2d 472 (2d Dept. 1999); See also, Timpone v Timpone,
28 AD3d 646 (2d Dept. 2006). In determining whether to award fees, the court
should "review the financial circumstances of both parties together with all the other
circumstances of the case, which may include the relative merit of the parties' positions"
See DeCabrera v Cabrera-Rosete, 70 NY2d 879 (1987); See also, Ciampa v Ciampa, 47 AD3d
745 (2d Dept. 2008). A final award of counsel fees can only be granted after
conducting a hearing where the opposing party is afforded a "meaningful way of testing
the attorney's claims relative to time and value." Patterson v. Patterson, 302
AD2d 507 (2d Dept. 2003); See also, Price v. Price, 113 AD2d 299 (2d Dept.
1985).
Wife argues that Husband is clearly the monied spouse in this action and
moreover that his actions throughout this divorce proceeding, including his failure to
provide discovery, have resulted in unnecessarily protracted litigation which has caused
her both emotional and economic stress. Moreover, Wife claims that Husband has
engaged in frivolous motion practice, has failed to comply with various Court Orders,
and has intentionally delaying the proceedings.
In opposition to Wife's claim for counsel fees, Husband first argues that
Wife's current counsel fee application is barred by a prior Order of the Court dated
December 20, 2007. In the alternative, Husband argues that Wife should be required to
pay her own counsel fees as she consistently delayed the proceeding.
On December 20, 2007 Justice Aliotta, who was then presiding over this
matter, signed an Order regarding counsel fees in connection with an application to hold
Husband in contempt. (Mot. Seq. No. 007). The language relied upon Husband is as
follows: "In light of the stipulation between the parties on December 12, 2007 pertaining
to the sale of marital personalty the Court hereby orders the Husband to pay the sum of
$15,000 to the Wife's attorney as counsel fees within 60 days of the date of this
Decision [*29]and Order. Thereafter, each party
shall be responsible for their individual counsel fees" (emphasis added). Husband claims
that the language of this Order controls Wife's present application for a final award of
counsel fees and precludes the Court from issuing such an award. The December 12th
stipulation referenced in the Order indicated that certain valuable objects would be sold
by the parties at auction "immediately" with the proceeds to be distributed equally.
Assuming that this Order, entered seven years ago, was not intended to be an
Interim Order, and would somehow be binding on this Court for the issue of a final
award of counsel fees, Husband's argument regarding the December 20th Order is still
unpersuasive for the following reasons. First, the Order at issue was made in
contemplation of an anticipated sale of marital personalty which would have yielded
Wife a significant sum of money from which she could have arguably contributed to her
own counsel fees. It is undisputed that this personalty, including various pieces of
artwork and jewelry, was never sold. Moreover, Justice Aliotta's Order directed Husband
to pay the sum of $15,000 to Wife's attorney as counsel fees, however Husband
admits that he never paid this sum. (Tr. 4/30/14, pp.82-82). As the parties never complied
with the Order directing the sale of personalty, and Husband failed to pay the
$15,000 in counsel fees, the December 20th Order cannot be equitably
interpreted in such a way as to bar all future counsel fee applications. When interpreting
the December 20th Order, the operative word is "thereafter" (i.e. "after that")
which creates a condition precedent. As Husband failed to comply with the
pre-conditions indicated in the Order, he cannot now attempt to utilize it to prohibit
Wife's subsequent application for counsel fees. See Hermann v. Hermann,
278 AD2d 200 (2d Dept. 2000); see also, Velkas v. Kaplan, 16 AD3d 580 (2d Dept. 2005);
Kozinitsky v. Richman, 247 AD2d 366 (2d Dept. 1998). The Court notes
that Husband, in attempting to interpret the Order in his favor, substituted the word
"therefore" for "thereafter" which significantly changes the meaning of
the paragraph. (Tr. 4/30/14 p.82).
While the Court does not agree that Wife is prohibited from seeking counsel
fees, the Court has also considered Husband's argument regarding Wife's conduct during
the trial. A review of the trial record indicates that Wife was considerably late to a
number of the trial appearances. Moreover, Wife often interrupted proceedings by raising
her hand or talking aloud over the instructions of her attorney. In addition, Wife's initial
failure to comply with the Court appointed forensic evaluator, Dr. Favaro, and her
disruption of the mold remediation and repairs to the marital home caused significant
delay. Finally, Husband correctly argues that Wife's own attorney has indicated that Wife
is often uncooperative. (Tr. 4/30/13 p.92).
After consideration of the totality of the circumstances, including the merits of the
positions taken by both parties, and the financial circumstances of the parties, the Court
hereby determines that an award of counsel fees to Wife is appropriate. See Kaplan v. Kaplan, 51 AD3d
635 (2d Dept. 2008). In making this determination the Court notes [*30]that Husband is in a vastly superior financial situation
than Wife. While Husband is self represented, the Court finds that he has made this
choice voluntarily, and not because of an alleged inability to compensate counsel.
Moreover, Husband admittedly has had the assistance of advisory counsel outside of
court. For the reasons set forth above, Wife is hereby awarded counsel fees in the amount
of $90,000. See Prichep v. Prichep, 52 AD3d 61 (2d Dept. 2008); See also,
O'Halloran v. O'Halloran,
58 AD3d 704 (2d Dept. 2009); Scheck v. Scheck, 49 AD3d 625 (2d Dept.
2008). While the Court finds that the $110,000 amount sought by Wife is
reasonable under the circumstances, that amount is being reduced by $20,000 to
represent the delays caused by Wife during the course of the trial. See Ciampa v. Ciampa, 47 AD3d
745 (2d Dept. 2008); See also Morrissey v. Morrissey, 259 AD2d 472 (2d
Dept. 1999). While the Court credits Husband's testimony regarding delays caused
by Wife, the Court notes that Husband has also caused delays throughout this proceeding
and often appeared in court unprepared and disorganized.
Husband is hereby Ordered to pay the sum of $65,000 directly to Mr.
Mevorah within 120 days of the signing of the Judgment of Divorce. The balance of the
counsel fee award which shall be paid directly to Wife as a reimbursement for fees paid
will be addressed below (see "reallocation").
In various motions filed by Husband throughout the course of these proceedings, he
has sought attorneys fees, costs and sanctions against Wife for, among other things,
seeking a Temporary Order of Protection, moving to preclude him, and for seeking the
payment of arrears. After a review of the motion papers, together with the trial record,
Husband's applications are hereby denied. Husband failed to show any legal or factual
basis for an award of attorneys fees under DRL '237 or sanctions under 22 NYCRR
'130.1.1. See Schiller v.
Guthrie, 102 AD3d 852 (2d Dept. 2013). In regard to DRL '237 Husband is
clearly in the stronger economic position, and has chosen to represent himself since
January of 2011 while utilizing the assistance of a ghost writer and legal advisor. As for
Husband's application for sanctions and costs, Husband and has not proven the "bad
acts" and abuses of process" that he alleges. (See e.g., Mot Seq. 16). Moreover, Husband
has failed to prove that any of the positions taken by Wife in this divorce were frivolous.
See Stone Mtn. Holdings,
LLC v. Spitzer, 119 AD3d 548 (2d Dept. 2014); See also, Matter of Lebron v. Lebron,
101 AD3d 1009 (2d Dept. 2012).
Reallocation of Expert Fees.
In addition to the reduction of Wife's counsel fee award due to delays caused by her
actions, this Court further grants Husband's application for a reallocation of Dr. Favaro's
forensic evaluation fee. While Husband's application for a change of custody necessitated
the appointment of Dr. Favaro to conduct a second forensic evaluation, Wife's failure to
comply with that evaluation in a timely fashion resulted in additional fees attributed to
Husband. Accordingly, a portion of Dr. Favaro's fee, in the amount of [*31]$2,000 is hereby reallocated to Wife. As Wife lacks
the financial resources to pay this sum to Husband, the amount of counsel fees awarded
to Wife herein is hereby reduced by the sum of $2,000 resulting in a net award
of $23,000. Husband's application for the reallocation of the other expert fees
related to this proceeding is hereby denied. Husband is hereby Ordered to pay the sum of
$23,000, directly to Wife as a reimbursement of the counsel fees she previously
paid her attorney within 120 days of the signing of the Judgment of Divorce.
Motions
During the course of the this matrimonial action, a number of motions were referred
to the Trial Court. The majority of the issues raised in those motions have been addressed
by the Court's decision herein, withdrawn, or deemed moot by the passage of time. The
remaining issues are hereby resolved as follows:
a. Defendant Husband filed Order to Show Cause Sequence No.
001 on or about February 15, 2006. Therein, Husband sought, among other relief, an
Order of sole custody for J.G. and J.L.G. As Husband has been awarded sole physical
and legal custody of these children, this application is granted. This Court has reviewed
the balance of Husband's motion and has determined that to the extent the issues raised
therein are not mooted, resolved by this decision or previously withdrawn, the relief
sought therein is denied in its entirety.
b. Plaintiff Wife filed an Order to Show Cause (Sequence No. 013)
on or about August 9, 2010. Therein, Wife seeks, among other relief, to hold Husband in
contempt for his failure to comply with various court orders. The Court's finding with
respect to Husband's compliance with court ordered maintenance and child support is
discussed above. Suffice to say here, that while Wife has shown a failure on Husband's
part to comply fully and consistently with the support awards, Wife failed to properly
plead and prove that alternative remedies would be ineffectual. See Jones v. Jones, 65 AD3d
1016 (2d Dept. 2009); See also, El-Dehdan v. El-Dehdan, 114 AD3d 4 (2d Dept.
2013). As Wife did not show that she lacked less restrictive means of securing
compliance, her application for contempt is hereby denied. Upon review of the remaining
requests for relief sought in this motion, the Court finds that they have been addressed by
this decision, mooted, or previously withdrawn. To the extent that the issues raised were
not previously addressed, or addressed herein, they are hereby denied in their entirety.
c. Defendant Husband filed a Notice of Motion (Sequence No. 015) on or
about October 25, 2010. Therein, Husband seeks various aspects of relief that have been
resolved by this decision including a request for sale of the former marital premises.
Husband's request for a $5,000 sanction against Wife for filing a motion seeking
arrears is denied as Wife's motion was not frivolous. See Genco v. Genco,
2015 NY Slip Op 00332 (2d Dept. 2015). Husband request for an Order vacating
the Preclusion Order is denied. Husband's application for child support for Jo.G. has
been withdrawn as [*32]Husband has indicated that he
waives all claims of child support from Wife. Moreover, Jo.G. has now advanced in age
beyond the child support jurisdiction of this Court. See Family Ct. Act '413
(1)(a). Upon review of the motion papers, together with the trial record, all of the
remaining aspects of relief sought in this motion, have been addressed by this decision,
withdrawn by Husband, or mooted by the passage of time. To the extent that any aspect
of relief sought in this motion has not been addressed by the prior orders of this Court, or
this present decision, those applications are hereby denied.
d. Defendant Husband filed a Notice of Motion (Motion Sequence No. 16) on or
about October 5, 2010. Therein, Husband's seeks, among other relief, an Order vacating
the temporary Order of Protection entered against him. After a hearing held in March of
2011 this Court dismissed Wife's Family Offense Petition (O-3672/08) and her
subsequent application by Order to Show cause for a violation of the temporary Order of
Protection. (Motion Sequence No. 14). The temporary Order of Protection previously
issued was vacated. While the Court found after hearing that Wife did not reach her
burden of proving a specified family offense, the Court does not find that her application
for an Order of Protection was frivolous in nature. Accordingly, Husband's application
for $2,500 as a sanction against Wife is hereby denied. See Matter of Miller v. Miller, 96
AD3d 943 (2d Dept. 2012).
e. Defendant Husband filed a Notice of Motion (Motion Sequence No. 19) on or
about March 15, 2012, wherein he sought to dismiss Plaintiff's action for divorce in its
entirety for trial delays on part of Plaintiff Wife. This motion is hereby denied. A review
of the trial record clearly indicates that both parties contributed to the numerous
delays in this divorce proceeding. Moreover, Husband does not provide a basis, in law or
fact, for the dismissal this long pending divorce matter due to delays in the trial. Wife's
conduct which resulted in delay has been addressed in relation to her counsel fee
application.
f. Defendant Husband filed a Notice of Motion (Motion Sequence No. 20) on or
about May 10, 2012, seeking an Order compelling Plaintiff Wife to surrender the movie,
"Kings of Brooklyn" to Husband, among other relief. The movie was surrendered to this
Court on or about June 10, 2013 and its distribution is determined herein. Accordingly,
Husband's application for the return of the movie has been resolved. Moreover,
Husband's claim for marital waste on the part of Wife in relation to the movie is denied
as not proven at trial for the reasons set forth at length herein.
g. Defendant Husband filed a Notice of Motion (Motion Sequence No. 21) on or
about May 16, 2012, seeking, among other relief, the appointment of a receiver to sell the
marital home and vacant land and to hold Wife responsible for damages due to her
alleged interference with a potential sale of the home. Husband's application requesting
the immediate sale of the marital residence and vacant land, to the extent that it still
exists, is resolved by the direction herein that the home and vacant lot be placed on the
[*33]market for sale. Husband's application that he be
appointed receiver for sale of these properties is hereby denied though he is granted
authority to make decisions regarding those sales to the extent delineated herein.
Husband's claim for damages regarding an alleged sale of the property allegedly thwarted
by Wife is denied as Husband failed to meet his burden of proof at trial regarding
existence of a bona fide offer together with proof that Wife frustrated or prevented the
alleged sale. Moreover, the Court notes that Wife had no legal obligation to agree to sell
the home, nor could the Court have Ordered the sale of the home, absent consent or
emergency circumstances. See Brevilus v. Brevilus, 41 AD3d 630 (2d Dept. 2007); See
also, Moran v. Moran, 77
AD3d 443 (1st Dept. 2010).
h. Defendant Husband filed a Notice of Motion (Motion Sequence No. 24) on or
about July 27, 2012 seeking, among other relief, dismissal of this action based upon
Wife's actions which resulted in delays to the proceeding, and for alleged fraud in
connection with this litigation. After consideration of the moving papers, together with
the trial record, Husband's application is denied. This motion, in many aspects, seeks
relief identical to that sought by motion sequence number 19, and it is therefore denied
for similar reasons. As previously stated, both parties have engaged in tactics which
resulted, either intentionally or otherwise, in the delay of this action. Moreover, Husband
does not provide a basis, in law or fact, for the dismissal of this long pending divorce
matter. The Court notes that such a result would be grossly inequitable to both parties in
the event that it were supportable by law. The Court further notes that Husband has failed
to prove the Wife attempted to defraud the Court by fabricating excuses for her absences.
The Court has reviewed the balance of Husband's motion together with the trial record,
and after consideration of the requests for relief therein, Husband's application is denied
in its entirety to the extent that it is not addressed by this Decision.
i. Defendant Husband filed a Notice of Motion (Motion Sequence No. 27)
on or about April 16, 2014 seeking to vacate the interim Visitation Order awarded to
Wife dated December 10, 2013. After a review of the moving papers together with the
trial record, Husband's application is denied to the extent that it is not mooted by the
parenting schedule as set forth herein.
Conclusion
For the reasons set forth above, a Judgment of Divorce is hereby granted to Plaintiff
Wife on the grounds of constructive abandonment.
As to ancillary relief: Father is hereby granted sole custody of the two
subject children, J.G. and J.L.G. Mother is hereby granted extensive parenting time with
the children as set forth herein. Husband has waived any claim for child support for the
subject children.
Wife is granted non durational maintenance in the amount of
$6,000 a month retroactive to the commencement of this action. Husband's
retroactive arrears shall be set at the sum of $380,100 after all credits and
deductions as set forth herein. This sum shall be paid in monthly payments of
$2,000 in addition to the non-durational maintenance award until such time as
the arrears are paid in full. Husband's first payment of maintenance as awarded herein
shall be made within 20 days of the signing of the Judgment of Divorce, until that time
Husband is directed to continue paying interim support under the pendente lite Order.
Husband's subsequent payments of support shall occur on the first of each month.
Husband shall be required to obtain and maintain life insurance in the amount of
$1,800,000 to insure Wife's maintenance award subject to the conditions set
forth herein.
The Equitable Distribution of marital assets shall be effectuated as detailed
herein. The former marital home located at *** Boardwalk is to be sold as detailed herein
with any proceeds, or debts related to the mortgage to be split evenly between the parties.
The vacant lot located at Block ****/ Lot** is to be sold as detailed herein with the
proceeds to be split evenly between the parties. The parties valuable personalty shall be
sold by Sotheby's Auction House, with the proceeds to be split as indicated herein.
Husband shall pay the various distributive awards delineated herein, totaling
$339,701 within 120 days of the signing of the Judgment of Divorce. Husband
is directed to retrieve the physical copy of the marital film (Kings of Brooklyn) within 30
days of the date of this decision, it shall be distributed as indicated herein.
Wife's application for a final award of counsel fees is granted as set forth
herein. Husband is directed to pay the sum of $65,000 directly to Victor
Mevorah Esq. within 120 days of the signing of the Judgment of Divorce. Husband is
further directed to pay the sum of to pay the sum of $23,000, directly to Wife as
a reimbursement of the counsel fees she previously paid within 120 days of the Judgment
of Divorce.
All requests for relief raised at trial, or by motion referred to trial, not
explicitly addressed herein are hereby denied. Wife's attorney is hereby directed to
prepare and file a Judgment of Divorce, Findings of Fact and Conclusions of Law and all
supporting documentation in accordance with this Decision within 60 days and deliver
those documents directly to chambers.
This constitutes the Decision of the Court after trial.
Dated:January 28, 2015
E N T E R:
__________________________________
HON. CATHERINE M. DIDOMENICO
Acting Justice Supreme Court
Footnotes
Footnote 1:This matrimonial action
was assigned to the Matrimonial Part 11 (Adams, J) on January 17, 2006. At the
Preliminary Conference held on February 21, 2006, this matter was transferred to the
IDV Part (Adams, J). That Part recused itself leading to a re-assignment to Trial Part 12
(Aliotta J.). The then pending criminal case against Husband remained in the IDV Part
(then Rothenberg, J). In addition to the above, Special Referee Faye DeGrimston was
assigned to decide various pre trial motions and Judicial Hearing Officer Michael Ajello
was appointed to oversee depositions.
Footnote 2:Ms. Aplin has
commenced a plenary action against Defendant Husband seeking a money judgment for
additional legal fees allegedly never paid by Husband or Wife which matter is currently
pending before this Part.
Footnote 3:Husband's purported tax
returns for years 2002-2011 were introduced by Wife without objection on her direct
case as Plaintiff's Ex. 1A-J. The admission into evidence of these documents by Wife on
her direct case does not relieve Husband of the preclusion consequences with respect to
his ability to prove his affirmative claims and/or defenses as all financial issues are to be
resolved in Wife's favor.
Footnote 4:There are numerous
liens that have been placed on this property including those levied by various attorneys in
this case including Ms. Kathleen Garrigan, Ms. Alison Aplin, Ms. Valerie Van
Leer-Greenberg, the law firm of Kasowitz, Benson, Torres & Friedman among
others. Husband also claims to have levied a Default Judgment against Wife in the
amount of 300,000. on this property based on his Civil Court action stemming from her
filing of domestic violence charges against him in Family and Criminal Court.