Opinion
Decided on August 16, 2007.
Barry A. Elisofon, Brooklyn, NY, Attorney for Plaintiff.
Sankel, Skurman McCartin, By: Mark Plaine, Esq., New York, NY, Attorneys for Defendant.
Stanton Pannitto, By: Rosa A. Pannitto, Esq., Law Guardian, Brooklyn, NY.
Ms. Pannitto was the law guardian during the custody phase of the litigation and was discharged at the conclusion of the settlement of those issues. Towards the conclusion of the economic phase of the trial, when it became apparent that there would be the need for another in camera interview with the child, Ms. Pannitto was reappointed on consent. The court developed a methodology which was agreed to by the parties wherein Ms. Pannitto was provided with a complete transcript of the economic phase of the trial prior to the in camera so she could effectively represent the child at the in camera.
This court is called upon inter alia to make certain decisions based upon a dispute involving allegations that a mother, through her actions, actively and passively alienated and influenced a child to the point that the child mayno longer have any inclination or desire to see her father again. As equally important, the court must also determine the credibility of claims of egregious domestic violence during a long-term marriage of 31 years alleged to have been perpetrated against the mother, herself an advocate for the rights of women in divorce actions.
One of the most difficult decisions a Judge has to make is that which impacts upon the life of a child. The law has long recognized the special place and role of the court in deciding issues relating to children and the long term impact that our courts have on the life of a child ( see Finalay v. Finalay, 240 NY 429, 148 NE 624).
The parties were married in August 1973. The wife is presently 52 years of age and the husband is presently 56 years of age. On the date of their marriage, plaintiff was 22 years of age and a college graduate. Defendant was then 18 years of age and a high school graduate. During the course of the marriage, four children were born to the parties, to wit: the eldest daughter, age 32; the eldest son, age 26; the youngest son, age 20; and the youngest daughter, age 13. The two youngest children, the youngest son (presently age 20) and the youngest daughter (presently age 13), remain unemancipated. During the course of the litigation the youngest son resided in Israel or was a resident student at A university. It appears the youngest son is fully and voluntarily supported by the father and does not permanentlyreside with either party, although he does reside with the mother during the summer recess from school.
The children will be referred to hereinafter by eldest or youngest to protect their identity and their respective chronological names will be substituted by the court even in quotes from testimony. Similarly, the names of the parties will be changed in testimonial quotes as plaintiff or husband, defendant or wife to protect the parties identities. The edited for publication version further protects the identity of the parties.
The husband commenced this action in December 2004 after the wife withdrew an action commenced in November 2004. The parties litigated in Family Court from November 10, 2004, through January 31, 2005. The husband also brought a writ of habeas corpus under a separate index number against the wife and her mother which was dismissed. The Family Court action was consolidated into the Supreme Court action, on consent. The wife was granted a divorce, on consent, after proof, on June 10, 2005, on the grounds of constructive abandonment and shortly thereafter the husband gave the wife a Jewish divorce (get) ( see DRL § 253). A law guardian, Rosa Pannitto, Esq., was appointed for the youngest daughter, and a neutral forensic evaluator, Dr. Alex Weintrob, was appointed by the court.
On November 29, 2005, the day set for trial on the issue of custody, all issues of custody and visitation were resolved by stipulation on the record. The agreement inter alia provided that the parties would share joint decision making of the youngest daughter, age 13, that the wife would have physical custody, there would be a parent coordinator and that the husband, the wife and child would separately enroll in therapy. The wife voluntarily, without prejudice, withdrew her request for a temporary order of protection and same was vacated, on consent. The agreement further provided for supervised visitation and a mechanism for the child and father to re-establish their relationship.
The issues before this court which were tried are: equitable distribution, maintenance, child support, and counsel and expert fees. The gravamen of the parties' dispute is as a result of the bifurcated custody agreement entered into by the parties on November 29, 2005, and the adamant refusal of the child to visit with the father. The wife requests that the court grant her a disproportionate share of equitable distribution based upon egregious conduct by the husband. The father requests that the court take into account, in its financial decision including the maintenance, child support and equitable distribution, the child's refusal to see him and the mother's support, encouragement and manipulation of events. The father alleges that the mother's acts of encouraging alienation constitute egregious conduct.
This court painstakingly heard testimony from the parties, conducted three separate in camera interviews with the child, the last being at the request of the child which was made one day after the conclusion of the second in camera interview. The court heard from various witnesses including the maternal and paternal grandparents, the editor of the largest Jewish weekly newspaperin New York, the wife of a deceased judge, as well as a rabbi who is the presiding judge of a religious court, the maternal grandmother's and mother's "bookkeeper", the husband's sister, the parties' long-time spiritual leader rabbi, the court-appointed neutral expert on business and license valuations, Glenn Liebman, and the wife's expert on valuation, Martin Randisi, the wife's expert on real estate value, Martin Levine, and the husband's real estate expert, A.L. Santagata
As this matter was sub judice, the father moved for custody based upon the youngest child not visiting with him and the child has sought an order of protection against her father. The child's court-appointed law guardian has been relieved based upon an irreconcilable breakdown in the attorney-client relationship and a new law guardian has been appointed.
Expert forensic testimony was elicited from a neutral expert, Dr. Alex Weintrob, appointed by this court, on consent, upon recommendation by the mother's first attorney. The court also heard testimony from the wife's expert, Dr. Charles Kincaid, a vocation evaluation and rehabilitation expert. Voluminous pre-trial discovery was conducted by the mother's second lawyer and the father's lawyer, as well as 21 separate days of trial before this court with the mother's third lawyer, Mark Plaine, of Sankel, Skurman McCartin, and Barry Elisofon, who has represented the father throughout this litigation.
Especially troubling to this court is this court's belief that the mother has, byher own exaggerated actions, manipulated the court process, the child and the father; the court fears that reconciliation between the child and the father will be difficult. The father has, through his actions, exacerbated the situation by exhibiting a lack of control and a history of poor judgment when dealing with not only the wife's dysfunctional behavior throughout the marriage, but his own dysfunctional behavior and inability to control his anger with outbursts of rage, sometimes culminating in incidents of domestic violence directed toward the wife. This court takes the personal view that in a civilized society even one act of violence against a spouse isviolative of human dignity and damaging to society and the individual. The court must note that the court recognizes that the acts that the wife describes, if she were found to be truthful, may rise to the level of egregious conduct ( see O'Brien v. O'Brien, 66 NY2d 576, Havell v. Islam, 301 AD2d 339, 751 NYS2d 449).
The mother seeks to have this court believe that her husband paints her as, in her words, "crazy" and that it is he who caused her mental stress. Yet this court had the opportunity over a long period of time to adjudge credibility of the mother and the father from the witness stand, in the courtroom and based upon her actions and tactics. In the matter of Scarlett v. Scarlett, the Appellate Division, Second Department held:
The plaintiff, basing her argument primarily upon her allegations of physical abuse inflicted upon her by the defendant, contends that the court erred in its determinations with respect to, among other things, the grounds for divorce and the equitable distribution of the marital assets. The defendant denied the plaintiff's assertions of physical abuse and the court, having the unique opportunity to observe the witnesses and hear their testimony, credited the defendant's testimony and discredited the plaintiff's testimony. In a case tried without a jury, this Court's inquiry is "as broad as that of the trial court," and this Court may render a judgment it finds warranted by the facts, taking into account in a close case that the trial judge had the advantage of seeing the witnesses ( Martinez v State of New York, 225 AD2d 877, 878-879 [1996]; see Northern Westchester Professional Park Assoc. v Town of Bedford, 60 NY2d 492 [1983]). Here, the evidence supports the trial court's determination.
( 35 AD3d 710, 830 NYS2d 156).
Uniquely, the court has not only had the opportunity to see the mother as a witness, but also had an opportunity to view her mother (the maternal grandmother) who plays a major (if not too major) role in this child's life, as well as the child on three separate occasions in camera. During the course of the proceedings as the maternal grandmother faced cross examination, her testimony was halted and the grandmother was hospitalized for allegedly extremely high blood pressure. The mother too was hospitalized during the trial, although the exact reasons for the hospitalization were never disclosed. The mother who exhibited to this court inappropriate behavior on a frequent basis engaged in both pre-trial litigation and trial tactics, which prolonged and delayed the litigation, and added greatly to the cost. The father too, although appearing docile and calm in court, clearly could be agitated at times, or even inappropriately indifferent to realizing that his behavior and conduct were a contributing factor to the child's reaction to him and her susceptibility to the actions of the mother.
The parties have, apparently, successfully parented three adult children and until the marital discord of 2004, a fourth child. Testimony adduced at trial portrays a well-respected and learned family within the orthodox Jewish community of Brooklyn, New York.
The wife successfully (as the wife described it) shepherded and encouraged the husband to attend dental school, helped him with his studies and even convinced the dean of the dental school not to flunk him out of the program. It is undisputed that the wife helped select and hire staff for the dental practice, chose and negotiated the parties' purchase of a home in Brooklyn as well as apartments in Israel. She was primarily a homemaker, raised three adult children, whom the parties referred to but have never been called by either party as witnesses. The wife delayed her own education while raising a family.She obtained the following degrees during the course of the marriage: Degree of Bachelor of Science in Education in1979; Masters of Arts Degree inFebruary 1985; Post Masters Certificate in Aging in June 1992; and New York State Certified Social Worker in December 29, 1999. Additionally, with her husband's financial assistance and encouragement, the wife founded an organization, thelaudable purpose of which is to assist orthodox women in obtaining Jewish divorces and providing financial assistance. The husband spoke openly and freely of the parties' desire to "tithe" their incomes for charity purposes as his success and income grew. The husband, voluntarily with the wife, gave large sums of money and room in their home to support this organization. In addition to his dental practice, he successfully opened Article 28 health related clinics after he obtained a license from the New York State Department of Health. They conduct business to provide dental clinics through a certificate of need.
As the husband continued to expend time and efforts in the development of these business enterprises, it appears that the wife became more involved in raising the children and taking care of the home, obtaining two degrees, and nurturing what she described as "her organization".
Although the wife claims that the husband was the individual in control throughout the marriage, her own testimony, behavior and written documentation lead this court to find that claim without merit. In fact, it is clear to the court that while describing a multitude of "wonderful", "fabulous" people who she has found along the way to assist in the husband's practice, the selection, purchase and location of the marital residence, keeping him in dental school, all the while the wife claims throughout she was at the economic peril and power of the husband (a concern that permeated the marriage). The checks on the joint checking account were more often than not written in her handwriting. Demands for $100,000.00 in monies for her own security were met (although the wife's explanation of the utilization of those funds is inconsistent) as well as $30,000.00 in diamonds, hidden in shoes in case of the need to flee, as a result of any potential international persecution. The husband voluntarily gave the wife a 9% interest in the health related facilities even though the wife claimed she did not want them because she always feared the husband would be indicted. According to the husband, 9% is the maximum percentage the wife could have by Health Department regulations. The real property in which the dental practice is housed is in the wife's name, as is a cooperative apartment in Brooklyn and three apartments in Israel.
It appears that throughout the marriage the husband, wife and children enjoyed what could be described as a close family relationship with the maternal grandparents and the paternal grandparents. The husband's sister described the wife in the terms of how helpful she was to her during her own divorce and that she felt like "sisters" with her although she described her as a "tough cookie" with whom you would be afraid to disagree. Involvement and contact with grandparents from both sides have been described as warm with a common theme of the maternal grandmother being a strong overwhelming influence in the family. The father apparently continues to have a full, complete and loving relationship with his adult children and frequently babysits and cares for the grandchildren. It is undisputed that he was involved in the youngest daughter's growth and development and that until the final marital discord enjoyed a relatively good relationship with the child. His relationship, subsequent to the execution of the custody and visitation agreement, has deteriorated substantially. Even during the forensic evaluation early discussions with Dr. Weintrob, child and father interaction were positively viewed.
The court heard credible compelling testimony from the parties long-time rabbi and spiritual leader who not only was involved for many years with the wife's organization as an advisor, but whose young daughter was a close friend of the youngest child; the parents entertaining each other at respective homes. Once the marital discord started, though, the couples' relationship soured. The rabbi clearly disturbed and still bewildered by not only the wife's distancing and resignation from the synagogue which they belonged for many years, but the denial of access to the youngest daughter by not only to him but more painfully from her best friend, his own daughter. These two children had a close bond, spent time in camp and each other's home, which was interfered with by the mother.
The rabbi, who had often and consistent contact with the wife, never knew or heard of any domestic violence and would occasionally meet with the wife and clients of the organization who were victims of domestic violence. The rabbi relayed that, in his opinion, the wife's descriptions of events to him were "generally truthful but often with exaggeration".
It is clear to the court, the wife's exaggeration, coupled with an escalating need and quest to control, permeates the wife's testimony. Moreover, in his report Dr. Weintrob noted that the wife "demonstrates personality traits characterized by a high degree of anxiety, with a somewhat histrionic and medodramatic tendency, which leads to a certain degree of catastrophicing particularly in relation to her daughter [youngest daughter]." The issue of exaggeration and control by the wife was all too evident during the course of the trial, as was the fact that the father chose to ignore much of the tension and dysfunctionalism that went on during the marriage in the hope of saving the marriage, culminating in a loss of control and inappropriate verbal rage and a literal "tug of war" with each parent trying to pull the child. That rage, when taken in the context ofthis divorce action, has serious, deleterious affects on the family unit. Clearly, though, this divorce was long overdue.
This court does not in any way base its opinion on Dr. Weintrob's view (or anyone else's) as to who was an accurate reporter. That is a decision for the court.
It appears that all neutral witnesses central to the wife's claims of domestic violence (except her mother who certainly was not neutral) who the wife contends could, in affect, corroborate even a scintilla of her testimony, what she referred to as her credible litany of named sources, are either deceased or were never called as a witness. The many claims of domestic violence were listed in the wife's verified answer and counterclaim but many of the most serious allegations of domestic violence were not revealed until trial and after the neutral forensic evaluator testified. In fact, it was not until Dr. Weintrob testified that the wife requested fees to hire an expert to testify on domestic violence.
Due to the fact that the trial was underway and the neutral expert already testified, this court denied the application for the wife to hire an expert on the issue of domestic violence. Defendant has previously sought and obtained a delay of the trial because she had hired a new lawyer and her own new financial expert prior to trial. Martin Randisi. During that first application for a delay, there was no mention of a domestic violence expert.
This court has grave concerns regarding letters signed by the husband, apologizing for acts of domestic violence. Some of these letters, the husband claims, were signed in the presence of the maternal grandmother and all of the letters were dictated by the wife.
A review of the letters marked into evidence signed by the husband clearly contain admissions of domestic violence and have two themes, violence and economic security for the wife; themes which permeate the wife's testimony and child's concerns.
The careful observation of the wife's testimony, inconsistency, lack of credibility and clear exaggeration cause this court to pause and seriously question her credibility as to the egregious claims. While doctors and studies of experts on the issue of domestic violence are all cited and quoted by the wife, they are all significantly missing witnesses. Dr. [J], the parties' longtime therapist, is deceased, as is the judge who allegedly had all of the wife's proof. Although the wife called his widow to the stand, she was never asked about the missing proof which the court finds incredulous. Police reports of the alleged long history of domestic violence, with a claim that a judge who is a former Assistant District Attorney had the evidence are non-existent. Corroboration of the testimony that the husband caused the wife serious physical injury including a broken wrist is non-existent. The wife claims that all the xrays and reports were taken by the husband or in the possession of others, yet it is highly unlikely that there are no copies of the police reports, original medical records or doctors records. The wife claims she self-diagnosed the broken wrist. Doctors who witnessed bruises are referred to by name but no medical records or testimony were ever introduced, although the wife's longtime physician was listed as a witness, he never testified, even though the trial spanned for months. The wife cites a multitude of credible witnesses to events, none of which appeared at trial but are put forth by her by name and title to corroborate her claims. The only corroboration she puts forth is her mother. The maternal grandmother testified incredulously that she called the police and she, who allegedly saw bruisesbut never violence, asked the police to stay outside the house through the night to "listen" for violence. The maternal grandmother, when pressed to answer truthfully and evading the questions on cross, took ill on the witness stand and was hospitalized. That testimony is as incredible as the wife's testimony that she feared for her safety while in Israel and she told the "soldiers on the corner" of the apartment building where they were living (not the police or her many contacts in Israel) to listen if she needed them! It is clear that through the pre-trial discovery the maternal grandparents thwarted the discovery process on economic issues.
The wife described throughout the course of the marriage a history of domestic violence which she claimed included punching, raping, kicking, slapping and twisting her neck so hard so as to sustain a herniated disc, a broken wrist, slamming car doors by plaintiff and pushing at the marital residence, all the while listing on her affidavits of net worth that her health was good. The wife's claim that she was raped by her husband and the next day by clarification she added:
Q: During the course of this trial, during your direct from time to time you've accused [the husband] of forcing himself sexually upon you, is that correct? Yes or no?
A: Yes
Q: If that was a problem that [the husband] was actually forcing himself sexually upon you why then did you seek to help him correct erectile dysfunction problems?
A: This is not a brief answer. May I?
Dr. [J] was already at the stage where he could not go to her. She was too sick. She had strokes. And I was on my own. I never wanted a divorce because I wanted my children to have a father, and I felt that it was important not to have a divorce.
I learned that if a woman does not go then she can be set up for a heter for the hundred rabbis enforcing the law that she would not get a Get. And that sometimes men who are preparing for a divorce tell their wives not to go to the Mikvah and then they go ahead and then claim to the rabbis she's refusing to have relations with him and refuses to go to the Mikvah as in the Seiger v. Seiger case, which [the husband] knew about, because I was involved in trying to help her get her Get at one point.
This court was the trial court in Sieger v. Sieger. A mikvah is a ritualistic bath.
So when he told me not to go, and I did not want a divorce because I wanted my children to have a father, and I wanted to continue being married even though I wasn't happy, that wasn't ever the issue.
The issue was always the children and what's best for them. So I learned that I had to go. It was my commandment to go and that [the husband] had no right to tell his wife not to go. And I went.
When I came back from the Mikvah that night, at that point he said "I told you not to go." And he literally got on top of me, ripped my nightgown off, literally forced himself in, pushed himself out when he was good and finished while I was screaming in pain. He put his hand on my mouth.
I subsequently went to the bathroom, found myself bleeding, and he said "Well, you wanted it, now you got it.
So I did not know what to do. I did not know what to make of this. And I went to his doctor. I called his doctor, Dr. [S], because he's claiming he has erectile problems, and obviously he's perfectly capable when he wants to.
And I did not want a divorce. I did not know what to make of this. I did not have Dr. [J]. I did not know what to do so I went to-I spoke to Dr. [S], and I thought that sometimes men go crazy when they cannot have sex, maybe they do not know what they are doing. So I asked Dr. [S] to help me . . . I learned that [the husband] needed to see a psychiatrist. I also knew he would not. I still did not want a divorce because of the children. I believe that children need a nuclear family as the best.
Therefore I tried to help him.
Shortly thereafter at the next court appearance, defendant testified:
A: It wasn't happening I think I want to make it clear I was never accusing [the husband] of every sexual relationship being rape. That is not what happened.
First of all, it never happened when I was forbidden to him as a wife two weeks. That is a number one. It happened that time that I described here. It happened a few other times to the point where went to a Beth Din to have to undo a swear that I said I would never go to Mikvah again.
Q: On how many occasions did this conduct occur where you described him physically forcing himself to know you?
A: At least four.
Q: Is that over a period of years?
A: Yes, It wasn't every time, God forbid.
At the conclusion of the testimony regarding the husband's erectile dysfunctionissue, the wife smirked and broadly smiled at the husband.
While the wife admits that she may have told the forensic evaluator, Dr. Weintrob, there was no physical violence involving the child directly in a monologue, she testified:
. . . And the bottom line is if a child is pushed or shoved or hurt, if she doesn't have and I was told by numerous by lawyers in New York that and even after the case I consulted with numerous lawyers, and I was told that I should have let him beat her up, because if I would have let him beat her up I wouldn't be here today. That I would have allowed her all I needed was one broken bone. "[The wife], why did you protect her." If a Jewish child of Orthodox background with a man who is rich can hire a lawyer, he can get way with anything. All you need is money. And if a black woman was sitting in this seat and she said that certain things would happen, she would be in and out, and the system would have had him in jail. But because I'm, quotes, (sic)"wealthy and I look good, and I speak well, I'm educated and my child looks well", and she is well because I protected her, and her father can hire a rich lawyer than's why she's writing a book, "Father with a Gun" is the title. To tell the world that it's like to be a child living in a world of domestic violence with a father who has a gun literally and has the bigger gun, money to buy everybody off.
This gun was initially a licensed pistol, never brought to the marital home and located in the Queens dental office. The husband never carried the weapon. He testified, and it is unrefuted, that this gun was never in his possession off premises. The court is concerned that this weapon, which was never shown, never carried, never utilized, kept at a business location in another borough, has become the focal point of the child.
The court is also concerned that the license to maintain this gun during thelitigation lapsed and joins in Dr. Weintrob's concern that the husband was indifferent at the time of the license's lapse.The gun has now been surrendered, according to the husband.
While no medical testimony, proof or corroboration, but for the wife's recitation of a host of witnesses, was ever adduced at the time of trial, the wife posits that this severe domestic violence has had two affects; the first being that she is entitled to a far greater percentage of the assets to be equitably distributed than the share that would otherwise be equitable because of the domestic violence and an award of lifetime maintenance because of her multitude of serious injuries including a broken wrist and herniated disc. The husband posits that the wife has so influenced the child through her acts that the child will have no contact with him, and he avers that the wife's actions constitute egregious conduct which should, according to the husband, result in an inequitable distribution of assets, no maintenance and limited child support (basic needs and education expenses only). The husband posits that this is the last resort that he has to require the mother not to interfere in his relationship with the child.
Move to Israel
It appears that the crux of the last marital dispute erupted with the parties' decision in the year 2004 to emigrate to the State of Israel. The wife posits at trial that the decision to go to Israel was an experimental decision, one couched in terms of a series of fraught plans to return which included but were not limited to the health of the wife and the need for her medical treatment in the United States. The wife puts forth the proposition that is why the house in Brooklyn was not sold and that the move was temporary in nature (even though the eldest child and her family were residing in the home). The maternal grandfather also testified that the move was temporary in nature and that he did not believe that the parties had emigrated to Israel. The wife indicated throughout her testimony that she was appalled at the notion that the husband had told people that he was emigrating to Israel, a term known as "aliyah", and the wife testified during the trial the significance of telling an individual that they were going to commit themselves to a life of Israel versus the temporary arrangement of trying to see what it would be like in Israel. The move to Israel was fraught with a pattern which developed throughout the marriage. For example, ultimatums were made and disputes arose shortly beforeleaving, one of which related to $100,000 that was given to the wife by the husband years before.
It also appears from the credible evidence herein that the husband, as far back as 1999, was pressured by the wife (during a prior trip to Israel) to buy property in Israel and required that the husband buy certain apartments during a visit to Israel and she would not leave Israel until such time asthey did so. The purpose of the purchases was for not only for them to live in at some time, but for their children to also inhabit from time to time, and even on a permanent basis.
The ultimate decision of the parties to move to Israel in 2004 in many ways was the culmination of years of a dysfunctional marriage. The husband, by verbal agreement, agreed to share 50% of the interest in the Article 28 businesses with his office managers, together with his dental practice, and the parties emigrated to Israel. The husband testified that it was his belief, if he gave these individuals a 50% interest in the profits there would be tremendous incentive for them to succeed. He planned to manage the business by video conferencing and returning to New York every eight weeks. It was clear from the testimony of the parties' long-time rabbi that the rabbi believed they were moving permanently to Israel. The wife, once in Israel, obtained a social work license, admittedly using contacts with the Israeli government in order to obtain the license to practice social work in the State of Israel. While in Israel, the husband took language courses in Hebrew to satisfy the language requirement to sit for the dental examinations for licensing dentistry in the State of Israel. Clearly, while the dispute between the parties prior to the emigration to the State of Israel were significant, the events that occurred within the State of Israel were also filled with conflict and concern. The wife testifies that she was the victim of violence and that the child herself had become a victim of violence during an incident relating to an excursion to the Wailing Wall which occurred during the Yom Kippur holiday in 2004.The wife testified:
One of us said "Let's go." He got very angry and said he didn't want to go. We were very surprised. It was planned. And he got angrier and angrier, and it escalated to the point where he pushed her and she fell on the floor and she was crying and she hurt herself.
There was a crowd of people, she was mortified. And he said "Are you coming with me or going with mommy," and he started a whole tug of war type of thing. [Youngest daughter] looked at me. "I don't know what to do." And then eventually and then we-[the youngest daughter] and I walked to the Wailing Wall and left him there.
The husband's version of the events was:It was a long day. It was a fast day. I was exhausted. I did not want to make the forty minute walk to the Wailing Wall from the synagogue and I told her I did not want to go. We talked about it. One might even call it we argued about it.
Thereupon I told her if she wants to go she can go, but I am not going with her, and thereupon she took [the youngest daughter] and went to the Wailing Wall for final services on Yom Kippur day. That is all that happened.
Q: Did you ever touch the child in anger on that day?
A: No, I did not."
Q: Did you ever push the child or in some way cause the child to fall on that day?
A: No, I did not."
Another incident in Israel that the wife described, and reported to the Kings County Family Court was the "car door slam" incident which occurred while the family was living in Israel. According to the wife, the husband slammed the car door into the wife as she was exiting a cab. The slammed car door caused the wife severe abdominal pain and hurt her wrist. The wife did not see a doctor for her injuries.
The husband testified that while he did slam the car door, it was not malicious but rather accidental in nature. The husband testified that he was exiting the cab on the "traffic" side and presumed that the wife would not follow him but rather would exit on the "pedestrian" side with the youngest daughter. He alleges that because he did not realize that the wife was following him, he allowed the door to slam. The wife's testimony about the resulting severe abdominal pain and bruising, which did not require any medical attention, is not credible. Similarly, is the act of a car door slamming of an individual an accident or an act of purposeful violence; no police report, no accident report, no medical report, no hospitalization, but that results allegedly in a self-diagnosed serious injury.
The court finds that the parties did decide to permanently move to the State of Israel. The court finds that it is not credible that the defendant's version that this was a temporary move even though her oldest child and her family moved into the home in Brooklyn. During extremely emotional testimony the wife revealed that she was gravely concerned about her aging parents and the husband's aging parents in New York and that they were so far away. The court truly believes the wife's return to New York permanently was based upon defendant's concern over leaving her parents. Even during a trip to Israel in June 2004 the parties wisely put the child into a day camp which was structured a little differently than the camps in the United States so that she could familiarize herself with her future classmates in the State of Israel prior to the commencement of the school year. The wife's claim that she did not know that the husband wished to work and live in the State of Israel permanently is without merit. It is impossible for this court to believe that the husband traveled everyday to Tel Aviv from their home in Jerusalem for the purposes of learning the language and preparing for the dental licensing examination and the wife secured her own license without there being a permanent plan for residency. Additionally, the party purchased a larger second apartment in Israel, all the while immersing the child in the language and culture of Israel which leads this court to conclude that the parties had intended on living in the State of Israel permanently. There is no doubt the wife hid the parties' relocation from her own father.
In August 2004, prior to leaving for Israel, the parties were involved in a dispute relating to the "missing" $100,000.00 that was in the possession of the wife. The husband gave the wife $100,000.00 some time during the early 1990s in order to provide for her "security" as per Dr. [J]'s recommendation. Dr. [J]was the parties' longtime now deceased marriage counselor. As the husband was consolidating assets prior to the move to Israel he had asked the wife to account for the $100,000.000. The wife did not wish to open the safety deposit box where she kept the money, testifying:
I told him that as per the agreement, that money was to be used in my discretion, he was never supposed to ask me about it and I never had to account to him or discuss with him what I did with it, and that statement still held true, and I was not going to open the box or discuss-the hundred thousand dollars in any shape or form.
On cross, however, the wife stated:
The money that was given to me for a hundred thousand dollars was given to me after a very, very bad beating with Dr. [J]'s involvement, because she said that he had threatened numerous times that if I ever left him that he would leave me penniless and I would be left on the street, on 34th street with a cup, without a Get, and he would take my children away claiming that I'm crazy and a liar and convince the community that it is all my fault, and nobody would believe me.
I learned subsequently that with an abuser when an abuser is at a point where he is here and the abused one is down there, he feels total control with finances, it becomes a very dangerous situation.
What was done was a shift in power, so to speak, which did work in a way because for a while it was quite physical, and she said at the time that I was in no position. . . .
It is clear that by 2004 this "security" money was spent. The wife, according to the husband, blurted out that she spent this sum during a Rabbinical Court proceedings that the husband convened.
The husband claims he called for the assistance of a bet din (a religious court) for the sole purpose of resolving the dispute with the wife regarding the missing $100,000.00. The rabbiwho attended and presided at the bet din testified credibly that the purpose in calling of the bet din was to secure for the wife a get (an orthodox Jewish divorce) because the parties were going to divorce. The husband claims that he discharged the bet din after they were convened because it was not his understanding that they were there for the purpose of securing a get but were there for the purpose of arbitrating the issue of the missing $100,000.00. The court finds the rabbi's testimony, to be credible and believes that the husband during a period of rage over this $100,000.00 (which the wife continues to evade accounting for even today), has been a source of great concern to the husband. The husband admits he did go forward with requesting that a bet din be created but says it was not for the purposes of securing a get. It is this court's belief that it was only at the last minute that the husband realized the seriousness of his actions and dropped the request to deliver to the wife a get.
The court, though, finds the husband's testimony credible in that he wanted to move to Israel at any cost. Likewise, after the event at the bet din, he sat at his home and signed one of the "confession letters", dictated by the wife, dated August 2004 in which he admitted:
We continued arguing about it, because during that conversation over in downtown Manhattan, [the wife] blurted out that she spent the hundred thousand dollars. And I just couldn't understand that. And we just continued to argue more and more, and then she just basically said, if that's the case, I am not going to Israel. You know, if you can't accept the fact that I spent a hundred thousand dollars, that's it, we have no reason to go to Israel. So we argued about that also.
And then basically I said, okay, let's forget about it and everything, and then she asked me to write this letter to her, this would be the only way she would go to Israel, is if I wrote this, which she dictated
And by the way, her mother was standing there with us.
The husband added "she dictated, I wrote and I signed, that is my signature".
When responding to an inquiry regarding a prior letter, the husband stated:
A: It made me notice it was an old letter as opposed to one written in 2004. But also, I have never sat down alone and written anything of this nature or any nature like this by myself. So either the letter must have been dictated to me by [the wife] or a letter must have been written by [the wife] for me to sign. Those are the only two instances in which I participated in this letter campaign.
The husband admits to writing and signing the letters, but claims they were dictated by the wife and the admissions of violence were not true.
The Return to New York
The events of October through January 2005 were the culmination of years of marital discord. The court believes that sometime in November 2004 the wife decided that she wouldreturn to New York permanently but did not tell the husband of her plans not to return to Israel. She testified:
I also when I knew I was coming home soon, and I made arrangements soon after Yom Kippur, against [the husband's] wishes, because he had promised we would go home, and then he did not want to let me go home, he did not want [the youngest daughter] to go home.
The husband was about to embark on a business trip back to the United States in November 2004to participate in management decisions and discussions as he regularly planned to do before moving to the State of Israel regarding both the Article 28 clinics as well as his dental practice.
The wife, asserting that she needed to attend to medical needs in New York City insisted, on short notice, on returning with the husband and taking the child with them even though she was in the middle of the school semester (adjusting to a new school) all the time knowing this was a premeditated decision to permanently return to the United States. The court does believe she did need medical attention and appreciates the sensitive nature of her concern and why she would want her own physician/specialist to deal with the issue. Yet, she still had no intention of returning to Israel after the treatment.
The parties returned to New York on November 8, 2004, ostensibly for a week. The husband previously made reservations for all three of them for a return flight to Israel on a Saturday night flight on November 13, 2004. The court simply does not believe the wife's testimony and believes she is lying when she indicated she told the husband in Israel that she had no intention of going back to Israel while in Israel. In fact, upon the parties' return to the United States, it is clear that they lived in the marital home in Brooklyn (where the eldest daughter and her family had been living), that the husband was actively out in the community buying goods and food items which are not readily available in Israel to bring back to Israel for friends. The parties entertained family members in the home over the sabbath weekend before the scheduled return, all the while the wife secretly was applying to the Kings County Family Court for inter alia an ex parte order of protection which she could not complete on Friday, November 12, 2004, because of the approaching sundown.
It is clear to the court that from the husband's reaction and the child's reaction that the husband knew nothing of the wife's seeking an order of protection the day before their scheduled return to Israel. No incident occurred during the week the parties were in New York, nor was the husband aware that the wife was not returning to Israel. In fact, it was only onthe evening of November 13, 2004, after sunset and a few hours before the return trip to Israel, that the husband learned that the wife and the child would not be returning to Israel. Nothing was mentioned during a November 9, 2004 visit with the husband's sister. It is clear that the wife from time billing recordssubmitted, met with her first attorney on Wednesday, November 10, 2004, together with her mother, and a retainer check was given in the amount of $10,000.00 to prosecute a divorce action. The maternal grandmother testified that counselwas not supposed to cash the check, but he did anyway.
There was a calculated strategy to obtain from the Family Court an ex parte order of protection, exclusive occupancy and custody before the weekend and commence a divorce action shortly thereafter, with the order of protection, temporary custody and an ex parte order of exclusive occupancy, all in effect from the Family Court.
However, in Family Court an ex parte request for exclusive occupancy was denied. A Supreme Court summons dated November 12, 2004, had already been prepared with plaintiff as the wife. Those records reveal that on November 14, 2004, that Sunday, defendant met with her then lawyer for a substantial period of time.
On Saturdaymorning, November 13, 2004, the parties went to their local regular house of worship, with the youngest daughter. The oldest daughter and her family and the mother's parents all visited the marital residence for sabbath lunch which was uneventful and that plaintiff even took a nap. When the husband awoke he saw neither the youngest daughter nor his in-laws present. Notwithstanding the fact that at 9:00 p.m. that evening they had been scheduled to be picked up by a car service to take them to the airport, at 6:00 p.m. that evening the wife had returned and announced to the husband in the presence of the oldest daughter that they were not going to return!
The testimony revealed at trial that not only has the maternal grandmother been so intimately involved in the parties'marital discord that she has hired a private detective at her own behest at a cost of $25,000.00 and she also completed and faxed to the U.S. State Department on the sabbath November 13, 2004, (even before any court order) an alert regarding the child's removal back to the State of Israel. Thereafter, the wife divided the marital bank accounts in half, wrote over $12,000.00 in checks to cash (endorsed by her parents) and the child was promptly re-enrolled by the mother at the local school which she had previously attended prior to emigrating to Israel.
After informing the husband of her intent not to return with the child to Israel, on the evening of November 13, 2004, defendant left for Manhattan and told the husband at sometime between 11:00 p.m. and 1:00 a.m. by telephone that she would be home the next day, November 14, 2006, and that she was sleeping at her parents.
It appears to the court that on Sunday, November 14, 2004, the wife and child returned to the residence after having remained overnight at the maternal grandparents' house on Saturday while the father did not know of their whereabouts. The wife testified that when she arrived home that Sunday, the husband refused to help her with the packages and by looking at his face she knew she was in trouble. She claims that the evening before the husband called her begging and crying that he loved her and loved the children and that he would put everything back the way it was.
The wife testified she had gone to the "mikvah" and was prepared to have sex with her husband to, in her words, "calm the savage beast" even though she already had retained counsel and spent the Friday before in Family Court attempting to obtain an order of protection.
The events that transpired that evening can only be described as an atrocious act of incredibly poor judgment and actions by the husband exacerbated by the wife. Plaintiff confronted the child in her room, demanding to know if she was going back to Israel. He placed the child right in the middle of their marital dispute. While the mother tried to open the child's door, he held it shut, trapping him and the child inside; all the while with both parties and the child screaming. The mother finally entered the room, scooped up the child and left the residence. Later, while searching the streets for the mother and child, when confronting them, he was told by the police officers called to the scene by the mother to go home. The child and mother, thereafter, resided nearby at the home of the maternal grandparents for a seven-month period until the husband vacated the residence voluntarily at the court's suggestion, and the wife and youngest child resumed living at the home.
On Monday, November 15, 2004, the police came to the marital residence, served the husband with the ex parte temporary orders of protection and on November 16, 2004, the husband filed cross petitions in the Family Court and obtained no ex parte relief.
Thereafter, an action for divorce was litigated with wife as plaintiff before the Hon. Betsy Barros which the wife discontinued on December 16, 2004. Thereafter, a writ of habeas corpus was brought by the husband against the wife and maternal grandmother on December 16, 2004, claiming the child was being held illegally by the parties which was assigned to the undersigned. There was an agreement as to the supervised visitation and the writ was dismissed. Thereafter, on December 20, 2004, the husband brought a divorce action against the wife which was assigned to this court.
Pendente Lite Support
The pendente lite order provides that the husband pays certain expenses together with weekly maintenance and child support. Those expenses, according to the order and the affidavits of net worth, total approximately $10,086.00 per month or $2,345.73 per week. The monthly expenses are: $108.00 in water and sewer taxes; $254.00 in car insurance; $320.00 for homeowners insurance; $291.00 for real estate taxes; $27.00 for pest control; $77.00 for the gardener; $345.00 for gas (Key Span); and $290.00 for electricity. Plaintiff is also paying, pendente lite, $250.00 per week inmaintenance and $500.00 per weekin child support ($750.00 x 4.3 = $3,225.00). The monthly total expenses exclusive of health insurance and tuition are $4,937.00. Tuition for both children is $3,591.66. Health insurance for the family plan (which includes plaintiff) is $1,558.00 per month. There is no mortgage on the Brooklyn residence.It is clear to the court that from the time the action was instituted, the wife has taken the position that she will protect the child at all costs and that she has repeatedly assured the child and promised the child that she would protect the child. From the very first visitation which was supervised in nature by the mother's sister, all relatives of the father were excluded and labeled unsuitable. Visitation times were agreed upon only to be interfered with almost immediately by the actions of the mother in arranging for various lessons for the child during the visitation on Long Island with the wife's sister's supervision. The insistence that the visitation occur in Nassau County with the mother's sister when all the parties lived in Kings County was a questionable act of judgment. When faced almost immediately with the child having a dance lesson scheduled that interfered with his visitation, the visits were re-arranged for 9:00 a.m. and the father complied. The mother never once refuted the husband's claims that prior to 2004 he had a close father — child relationship with the child and was actively involved in her development, maturation and related issues. Through the course of this litigation, although Dr. Weintrob describes visits between the father and child in his office as pleasant and open, the relationship between the child and the father has deteriorated to the point where the child has totally cut off all access with her father. Any attempts even through the stipulation of settlement which was entered into by the parties after the parties charted their own course which had extremely onerous terms of visitation, have not been successful. This court believes that based upon the mother's testimony and acts, she clearly never intended to abide by the terms of their stipulation. Dr. Weintrob testified:
The child and father separately traveled to Long Island, had a supervised visit in a restaurant and were not allowed to leave the restaurant to go elsewhere at the insistence of the supervisor, the wife's sister.
And basically, based upon what she said, she in became increasingly fearful that [the husband] would do to [the youngest daughter] what he had done to her.
And I mentioned in my report in that sense I believe that she identified [the youngest daughter] with herself. This happened to her and this was going to happen to [the youngest daughter]. And she had little ability to step back and say, well, [the youngest daughter] is [the youngest daughter] and I'm [the wife], and although my husband has been abusive to me, it doesn't necessarily mean he is going to be abusive to [the youngest daughter]. She wasn't able to do that.
Dr. Weintrob further testified:
In terms of her concern that her daughter would likely or more than likely be harmed by her father, that appeared to me to be quite a fixed idea based largely, in my opinion, upon her experience with him, her reported experience with him and somewhat on the individual incident.
The mother's testimony reveals that she feels great economic strain as a result of the pendente lite decision of the court and is even relying on charitable donations, notwithstanding the fact that she is receiving the sum of $500.00 weekly in child support and $250.00 in maintenance weekly pursuant to the order dated September 26, 2005, has all of the utilities and overhead on the marital residence including her automobile insurance paid for and that both unemancipated children's school tuition is fully paid. The college-aged child (age 20) has resided in either Israel in school during the course of the litigation or as a resident student at A university, where the husband pays annual tuition and room and board of $36,000.00.
Applications by defendant for pendente lite counsel fees have been granted in the total amount of $55,000.00 and timely paid. The husband has paid counsel fees of his own and neutral experts, law guardians, etc., totaling in excess of $250,000.00.
There has been no application for an upward modification of child support and/or maintenance pendente lite and the court learned to its dismay that the mother was claiming to rely upon charity within the community to help her buy necessaries, even though she receives monthly pendente lite support and all of the carrying charges on the residence are paid. The youngest child has been intimately involved in the economic circumstances relating to the divorce litigation. Admittedly, the child's attendance at summer camp during the summer of 2006 was surrounded with conflict, wherein the child was led to believe the father was refusing to voluntarily pay for camp. In fact, the wife when confronted in open court with the sealed envelope (certified mail) containing the check for camp which remained unclaimed at the post office by the wife, she asserted she was too busy to go to the post office to pick it up (and that this was an improper method of communication) and after three notices it was returned. The child was left with the belief that her father abandoned his summer camp commitment, all the while the check was in the post office, awaiting pick up but purposefully ignored.
The wife, while at times describing this court as having been "wonderful", claims that her lawyers and the court have stifled her attempts to put forth assertions with greater detail than the 15 page counterclaim.
Events of August 2005
On August 28, 2005, while the child was scheduled to return from summer day camp (after the parties having successfully negotiated a joint visitation with the child at the camp and the child and the parents planned the child's bat mitzvah), the mother apparently notified the father that the child would be arriving at the location of {[A Local High School]. The father, attempting to arrive at the location in a timely fashion through traffic, was notified by cell phone that upon her arrival, the child had to leave immediately for a friend's bat mitzvah. The mother, apparently in the possession of a tape recorder which she claims malfunctioned (which tape was never produced, but the mother claims she utilized the recorder for work) attempted to engage the father in an argument, threatening to leave even before he got there to meet the bus. Although the mother testified at trial that there was an independent witness to an altercation where the father allegedly, in front of a group of people, threatened to use a gun, she never brought an individual in to testify. When the court asked if anyone was present by name, a name was testified to by the wife but no witness ever appeared at trial. The tape recording was never produced and the child went home with the mother. A witness was produced who apparently saw the child that afternoon at the marital residence, shaken and concerned about the events that had previously occurred. That witness' production, who happens to be a bookkeeper for the grandmother and mother who was present at the residence at that time, leaves this court to question why produce a witness who works for you to testify of an event she never saw, and not produce one of a multitude of witnesses who the wife claims was one of many parents who saw the whole event? Why would the mother claim to have a tape recorder to meet a child at a school bus? Why tell a father to meet you at a bus to greet a child, but not tell him of a bat mitzvah the child had to attend immediately thereafter until he was already enroute? Why teach a child that being on time for a bat mitzvah is more important than having your estranged father see and welcome you home? It is curious to this court why there would be an independent witness who saw an alleged event is not produced like all of the other witnesses who the wife claims saw or knew of events who were never produced at trial.
The court is aware that there is no requirement, nor should there be a requirement, that individual corroborated acts of domestic violence. The court is also aware that victims of domestic violence often hide their abuse and acts of violence from those closest to them. The defendant herself is aware of that literature and has herself testified that
"Over the years I had gone to experts in the field of trauma, experts in the field of domestic violence, including I had spoken to Lenore Walker who is the authority the woman who wrote "Battered Women Syndrome," she coined the term. "I consulted with my professors, without saying it was me. I consulted with the head of the Ackerman Institute. I consulted with Wanda Lucibello, Mary Hughes. I had access to great people in Israel. Experts. . . ."
The wife blames the neutral forensic expert for not verifying her claims:
Q: What did you think the purpose of this forensic examination was for?
A: When I asked Dr. Weitraub specifically to look into the violence in the marriage and I asked him to call specifically Dr. Yankovich to call Harriet Birnbaum, who had heard the whole incident over the phone, and she's a therapist for twenty five years working with children, and she heard violence between me and [the husband] as well, he refused, saying it was not his place to determine whether or not there was violence, and then I asked him again to please check the order. He even read from the order and told me that whether or not [the youngest daughter] had witnessed violence between me and [the husband] was not his place and that it was irrelevant, and he never called the people that he was asked that could verify the violence. So with all due respect, you are asking me because Dr. Weintrob went back to the exact wording and then told me that. When I asked Dr. Weitnraub and I said to him it is my understanding that we are going to determine what will be the future safety of my child, and I want to be sure that my child is a hundred percent safe, he said that it was unreasonable for me to request that my child be a hundred percent safe. So in answer to your question, with all due respect to you, no. The answer is emphatic NO. And he did not under any circumstance follow through on the recommendations that clearly I know are usually done in domestic violence cases and checking in fact whether it was true or not. I also told him to call Dr. Copulsky, which he never followed through on. I asked him to call Rabbi P, who was there when [the husband] had his outburst at the Beth Din. I gave him a list of people to call I asked him to call the school to find out how she was coming in late.
There is no doubt that there is a pattern in this marriage of the wife exacerbating situations and causing conflict in such a manner that it results in inappropriate and improper reaction by the husband which cannot be sanctioned by the court. There is no doubt that the husband was angry after having negotiated traffic through the streets of Brooklyn to greet the child upon her arrival from camp to only be confronted with a tape recorder and a child who he would not have an opportunity to see. The court does not believe the wife has met her burden to prove by a preponderance of the evidence the very serious allegation that there was ever a threat to use a gun.
At this juncture, the relationship between the child and the father is so fractionalized that any member of the father's family have been totally estranged. The paternal grandparents testified as to this estrangement which culminated in April of 2005 during a home inspection of the residence. Those events which included a prearranged inventory by the wife of the contents of the home resulted in the paternal grandfather, a holocaust survivor, be excluded from the home without a coat and having described his treatment by his daughter-in-law as being better treated by the gestapo as he wandered the streets on a cold day! The relationship between the paternal grandparents and the child as well as the paternal aunt and the child have totally disintegrated and deteriorated notwithstanding a bat mitzvah planned by both parents and attended by both families. To have paternal grandparents totally cut off from all access with the child where the grandfather is 89 years of age is of concern to the court inasmuch as the court cannot bring back missed years of estrangement.
The court is also concerned that while the eldest daughter of the parties had been a resource for the youngest child and available to supervise visits during the earlier part of the marital discord(which allowed for the father to spend Passover seders with the child), she is no longer available.
Credibility
"Evaluating the credibility of the respective witnesses is primarily a matter committed to the sound discretion of the Supreme Court" ( Varga v Varga, 288 AD2d 210, 211 [2001], citing Diaco v Diaco, 278 AD2d 358 [2000]; Ferraro v Ferraro, 257 AD2d 596, 598 [1999]). The court's assessment of the credibility of witnesses is entitled to great weight ( see generally Wortman v Wortman, 11 AD3d 604, 606 [2004]). "In a nonjury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion" ( Ivani v Ivani, 303 AD2d 639, 640 [2003], citing L'Esperance v L'Esperance, 243 AD2d 446 [1997]; accord Krutyansky v Krutyansky, 289 AD2d 299, 299-300 [2001]; Diaco, 278 AD2d at 359; Solomon v Solomon, 276 AD2d 547 [2000]).The trial court is in the best position to judge the credibility of the parties. It appears to the court that the husband was forthright in his testimony regarding the issue of finances but minimized the impact of his actions upon the child. As Dr. Weintrob said in his report:
1. Regarding the issue of [the husband's] alleged lack of anger control and his alleged systematic physical and psychological abuse of [the wife] in the presence of the child: From his self-report and that of his wife, there are strong indications that in the past there have been serious issues of control over anger, most likely by both parties. There is no question in my mind, based upon my interviews with all parties, that [the husband] demonstrated a serious loss of control over anger on the evening of November 14th, directed against both [the youngest daughter] and her mother. While comment might be made in regard to the context of this incident (the entire issue of the return to Israel), in my opinion nothing justifies the level of expressed anger on this occasion.
Other than the incident of November 14th, there appear to be quite limited occasions when [the youngest daughter] was exposed to the alleged abuse of her mother. [The wife] herself has stated that she always attempted to shield her children from the alleged violent interactions between her and her husband. . .
2. Regarding the issue of diagnosis and treatment: While I do not believe that [the husband] suffers from diagnosable mental disorder. . .
Furthermore, he minimizes the impact of his behavior on November 14th upon his daughter, and has little sensitivity and awareness of how this might affect her current attitude toward him, instead seeing it as only instigated by her mother. [The husband's] delay in giving up his gun is also quite troublesome in that he appeared to have little awareness of the impact of his continuing to hold onto it upon his current situation and his wife's anxiety.
There seems to be a lack of understanding that his verbal rage and the tugs of war which occurred would have a great impact upon the child. There seems to be a lack of understanding of the affect of convening a rabbinical court to secure and deliver a get, to totally then later change his mind when his anger diminished. There is no doubt that at times he was provoked but that is no excuse for his conduct or behavior. His acts of rage andviolence cannot be sanctioned. When faced, though, with allegations of egregious domestic violence, his testimony was clear and concise. He denied them. During the course of his testimony he appeared calm but at times very emotional when speaking of the loss of relationship with his child. He spoke in glowing terms of the relationship that he had and still enjoys with his older children and grandchildren, and his frustration in trying to deal with his wife. When speaking of his relationship with the youngest daughter prior to the divorce action, he was compassionate, concerned and at times very emotional. Both parents exhibited a reluctance to have any of the other children testify or become involved in the marital discord. His testimony was consistent, whether on direct or cross examination but at some times seemed distant and aloof. As the trial continued he became more dejected and forlorn as the wife continued to exacerbate and her claims seemed to grow with each court appearance. The court notes Dr. Weintrob reports that there was serious issues of control over anger by both parties.
The wife's testimony was often extremely vitriolic while on direct examination and able to control the flow of information. She exhibited a need to try to control the entire court process and become involved at every stage of the litigation. In a very real sense it was clear to the court from observing her actions that she was able on direct examination to put forth information to the court that she believed was necessary even though unrelated to the question at hand. She was able to do so, and remember with great detail incidents and events. On cross examination she was often vague, non-responsive and at times asked for the question to be repeated or read back notwithstanding the fact that it may not have been a complex or hard to understand question. Often, on cross examination, she would not remember dates or details. She would often look down and away from the court when answering on cross examination, at times hiding her eyes with her left hand from the court. She and her mother both testified that they were not good with dates and names.
Defendant remembered some issues with great detail and claimed that therapy had helped her remember events throughout the marriage that she had never revealed before and at the same time, on questions which had the potential to impeach her credibility or when she perceived there to be the possibility of a trap, she would adamantly refuse to answer a question or say something that was not responsive to the question instead of answering the question. Simple yes or no answers could rarely be provided.
While citing the benefits of therapy in helping her to remember, the mother (and child) maintain that all therapy is confidential and outside of the reach of the court. Defendant testified that there was a difference between therapy and forensics. Moreover, according to plaintiff's testimony, he could not talk to the youngest daughter's therapist as part of his agreement with defendant. However, defendant was allowed to speak with the therapist. The agreement also provided that the youngest daughter's therapist would not be allowed to testify in any capacity.
There seems to be a lack of acceptance by the wife, or child for that matter, of the long established principle that when dealing with issues of custody and visitation one puts their own mental status into evidence ( see Rosenblitt v. Rosenblitt, 107 AD2d 292).
Equitable Distribution
In recognizing a marriage as an economic partnership, the Domestic Relations Law (DRL) mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the trial court to consider a number of statutory factors listed in DRL 236 (B) (5) (d) ( see generally Holterman v Holterman, 3 NY3d 1, 7-8).
As is relevant here, DRL § 236 (B) (5) (d) provides that;
"In determining an equitable disposition of property under paragraph c, the court shall consider:
"(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
"(2) the duration of the marriage and the age and health of both parties;
"(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
"(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
"(5) any award of maintenance under subdivision six of this part;
"(6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
"(7) the liquid or non-liquid character of all marital property;
"(8) the probable future financial circumstances of each party;
"(9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
"(10) the tax consequences to each party;
"(11) the wasteful dissipation of assets by either spouse;
"(12) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
"(13) any other factor which the court shall expressly find to be just and proper."
"Although in a marriage of long duration, where both parties have made significant contributions to the marriage, a division of marital assets should be made as equal as possible, there is no requirement that the distribution of each item of marital property be made on an equal basis" ( Chalif v Chalif, 298 AD2d 348, 349 [citations omitted]; accord Arvantides v Arvantides, 64 NY2d 1033, 1034; Adjmi v Adjmi, 8 AD3d 411, 412; Graves v Graves, 307 AD2d 1022, 1024; Meza v Meza, 294 AD2d 414; Saasto v Saasto, 211 AD2d 708, 709; Ehrlich v Ehrlich, 184 AD2d 400). Further, it is proper for the court to consider the parties' relative economic contributions to the marriage in arriving at a formula for the distribution of the marital property ( see e.g. Kaplinsky v Kaplinsky, 198 AD2d 212, 213, citing DRL 236 (B) (5) (d) (1); Palmer v Palmer, 156 AD2d 651; Michalek v Michalek, 114 AD2d 655; Kobylack v Kobylack, 111 AD2d 221, 222). In this regard, the fact that one party may have made greater economic contributions to the marriage than the other does not necessarily mean that the former is entitled to a greater percentage of the marital property ( Bartek v Draper, 309 AD2d 825, 826). Rather, "[e]quitable distribution presents matters of fact to be resolved by the trial court, and its distribution of the parties' marital property should not be disturbed unless it can be shown that the court improvidently exercised its discretion in so doing'" ( Johnson v Johnson, 261 AD2d 439, 440, quoting Oster v Goldberg, 226 AD2d 515, appeal denied 88 NY2d 811).
Marital v Separate Property
DRL 236 (B) (1) (c) defines marital property as "all property acquired by either or both spouses during the marriage and before . . . the commencement of a matrimonial action, regardless of the form in which title is held" ( see Seidman v Seidman, 226 AD2d 1011, 1012; quoting Sclafani v. Sclafani, 178 AD2d 830, 831). Separate property, on the other hand, is defined, in part, as "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse" (DRL 236 [B] [1] [d] [1]). All of the assets of this marriage were accumulated during the marriage.
Valuation Date
DRL 236 (B) (4) (b) provides that "[a]s soon as practicable after a matrimonial action has been commenced, the court shall set the date or dates the parties shall use for the valuation of each asset." In so doing, it is well settled that "[a] trial court possesses discretion to select valuation dates for marital assets which are appropriate and fair under the circumstances, limited only by the requirement that the date be set sometime between the commencement of the action and the date of the trial" ( D'Angelo v D'Angelo, 14 AD3d 476 [citations omitted]). Hence, the trial court has broad discretion in selecting the dates for the valuation of marital assets and, depending on the particular circumstances of the case, may appropriately fix different valuation dates for different assets ( see e.g. Kirshenbaum v Kirshenbaum, 203 AD2d 534, 535, citing Siegel v Siegel, 132 AD2d 247, appeal dismissed 71 NY2d 1021, appeal denied 74 NY2d 602; Wegman v Wegman, 123 AD2d 220).
In this particular case all of the documentation introduced by both parties provided date of commencement data as it relates to bank accounts. This is appropriate because of the wife's invasion of these accounts and division or expenditures paid the week the first action was commenced. November 17, 2004, was the date of commencement of that action.
Valuing a Business
"There is no uniform method of fixing the value of an ongoing business for equitable distribution purposes and valuation is properly within the fact-finding power of the trial court" ( Miness v Miness, 229 AD2d 520, 521, citing Amodio v Amodio, 70 NY2d 5; Rice v Rice, 222 AD2d 493). "The determination of a fact-finder as to the value of a business, if it is within the range of the testimony presented, will not be disturbed on appeal where valuation of the business rested primarily on the credibility of expert witnesses and their valuation techniques" ( Ferraro v Ferraro, 257 AD2d 596, 598, quoting Dempster v Dempster, 236 AD2d 582, appeal denied 90 NY2d 806, quoting Matter of Penepent Corp., 198 AD2d 782, 783; accord L'Esperance v. Esperance, 243 AD2d 446 at 447, supra).
The assets of this marriage, including plaintiff's dental license and practice as well as defendant's degrees and license, were all obtained during the course of the marriage. Additionally, the husband opened and operated the Article 28 clinics heretofore described. Thus, the following licenses, degrees and businesses are all subject to equitable distribution.
While originally a long term practicing dentist, the husband's management of these Article 28 practices became his major source of income. As the Article 28 practice grew so did the husband's income.
The assets were acquired during the long-term marriage and should be distributed equally ( see Miller v. Miller, 128 AD2d 844 "Although equitable distribution is not necessarily equal distribution ( see, Rodgers v. Rodgers, 98 AD2d 386, 391, 470 NYS2d 401), where, as here, both spouses equally contribute to a marriage that is of long duration, a division of marital assets should be made that is as equal as possible (see, e.g., Ahrend v. Ahrend, 123 AD2d 731; Bisca v. Bisca, 108 AD2d 773"). The enhanced earning capacity due to acquisition of a professional license during the marriage is clearly a marital asset subject to equitable distribution( see Grunfeld v. Grunfeld, 94 NY2d 696 (2000); McSparron v. McSparron, 87 NY2d 275 (1995); O'Brien v. O'Brien, 66 NY2d 576, supra, DRL 236[B] [1] [c] and DRL [B] [5] [c]).
Alienation and Egregious Conduct
Both of the parties request the court find that their respective spouse's actions rise to the level of egregious conduct, warranting a disproportionate share of equitable distribution pursuant to DRL 236 [B] [5] [d] [13]. The wife further argues the domestic violence has resulted in permanent medical disability warranting lifetime maintenance. The husband further argues that the alienation of the child should result in reduced or no maintenance for the wife.
In rendering an award of maintenance (as well as equitable distribution), the husband urges that this court consider the wife has engaged in a pattern of alienation which has been detailed painstakingly in this opinion. The court is extremely concerned about the affect that the wife has had on the child. The father, though, is not totally blameless. Most telling, is that even after the parties entered into a stipulation of settlement on the issue of custody and visitation, it is clear that the wife never intended to participate or obey the order of custody which had many therapeutic visitation components. For example, for substantial periods of time the child was not in therapy because a confidentiality agreement had not been signed and then extended, or the child was "away" at camp. The mother has adamantly refused to cooperate with an agreed upon parent coordinator and has successfully prevented the intervention and assistance of the coordinator.
On November 14, 2006, the mother, while screaming on the witness stand, testified as follows:
The line that you read to me about beating, he never beat my child because I got her out before he had the chance to do so. I was not going to have my child with a broken neck, or God forbid, a concussion or dead. I got my kid out of that thing in time. Because I know [the husband's] rage. And I know the level of rage it can escalate to and that has cost me $600,000 and two years of my life. . . And very frankly, I was told by you "We will see how much money you are going to spend before you are going to break, andyouare going to give in.
When a mother is truly protecting a child there is nothing that a mother will not give up. And you want to prove that it is true because the proof is in the pudding.
How many women sit here and give up $500,000 in legal fees, live in their mother's house for seven months in one room with two inches between them. Give up their entire life. Their reputation. Everything. Only a mother who really truly believes that her child is right in saying "I'm terrified," and yes, I protected my child as a mother first. That is a God given right, and as a social worker, I did it as a mandated reporter and I have paid dearly for this.
When asked if she notified protective services for children in Israel or New York, the wife would not provide a cogent answer.
The mother testified in great detail, loudly screaming, flinging her arms about, in an uncontrollable manner that she would do anything she has to do to protect her daughter. She truly believes that her actions protect her daughter, yet the testimony adduced at trial indicates to this court that the daughter has been in no danger from the father and that the daughter's reaction to the circumstances herein and the dramatic change in her relationship with her father (which had always been loving, caring and supportive) has had a dramatic impact upon the child. The mother has, through her own emotional state and actions, so influenced this child that the hope of reconciliation between the child and the father is severely impacted. There is no doubt in this court's mind that the mother truly wishes to paint herself as the most severe victim of domestic violence that this court has ever seen. This court is extremely cognizant of the gravity of a decision and is absolutely pained to have to come to the conclusion, based upon the inconsistencies and upon the nature of the testimony and the very facts and circumstances described herein and the wife's testimony (including but not limited to three separate in camera interviews with the child), that the mother has fabricated and exaggerated many of the incidents so complained of in this matter.
The reason this court has so detailed the testimony and history herein is because of the court's recognition of the implications of its decision.
The court painstakingly reviewed all of the testimony, patiently heard the mother's testimony without curtailing the often vitriolic responses, as repetitive and exaggerated as they were. It appeared to this court that the moment the mother, once realizing that the neutral forensic expert's report and testimony was not favorable to her, created and exaggerated additional incidents that were never mentioned before under the guise that she was revealing same for the first time, that she had learned of same only after engaging in counseling for battered women. While in many cases, suppressed beliefs and actions are recognized and accepted given the totality of the testimony, the court rejects said contention in this instance. Defendant testified:
Q: But you never told Dr. Weintrob that only in September 2005 that [the husband] was violent to [the youngest daughter] and he threw her to the ground?
A: Excuse me. That is your statement. You were not present. And very frankly, that fact that he did not include it does not mean that I did not say it, and I do not remember what I said to him on every score, and furthermore, the therapy that I am having with Dr. Hughes in helping me as a battered woman, since she is a battered woman expert, has increased my memory tremendously.
The court was cognizant of the gravity of its decision not to allow the domestic violence expert to be retained and paid for by the husband. This application was made only after the neutral forensic expert, who was chosen by the wife's former attorney, testified. Equally disturbing is the wife's position that not only has the neutral forensic expert failed in his obligation to report certain matters, she does not remember whether or not she ever told him of the severe beatings, the rapes, the allegation that she has gone from physician to physician, hiding for years the domestic violence that she claims was imposed upon her. Just as the neutral forensic expert has not properly done his job, according to the mother, neither did her first attorney. Defendant claims she spoke to the police yet states:
. . . I had spoken to some police officers. One of their names was Detective Barry and her partner, she had black hair, the other one had blond hair. I do not remember her name. An Italian lovely woman.
She claims:
I spoke to Detective I spoke to the police not once, but twice at least. More. When I was in America. And I learned that Orthodox Jewish women, unlike black or Puerto Rican or Italian, in quotes, or Greek, I was told, when they go when they go to the police, even, and even if they have an order of protection, if the husband has a relationship with certain rabbis or certain prominent members of the community, they go in and out, and they warned me that "your religion-and I am telling you, it escalates more and you would be in more danger, so you better watch what you do."
and shefurther asserted:
And the bottom line is if a child pushed or shoved or hurt, if she doesn't have and I was told by numerous lawyers in New York that and even after the case I consulted with numerous lawyers, and I was told that I should have let him beat her up, because if I would have let him beat her up I would not be here today. That I should have allowed her all I needed was one broken bone. But because I am, "wealthy and I look good, and I speak well, I am educated and my child looks well," and she is well because I protected her, and her father can hire a rich lawyer that is why she's writing a book "Father with a Gun" in the title. To the world what it is like to be a child living in a world of domestic violence with a father who has a gun literally and has the bigger gun, money to buy everybody off.
The wife claimed her now deceased friend (who was a judge) and was "like a brother to me", had her police records and she testified:
What happened, they took it down. Those idiots, they sent me a letter. On the top of the letter in the corner, you know, it says the Domestic Violence Unit, or whatever it is, the Police Department, and he got the mail before me. And I walked in the door and he almost killed me.
I went to the police. I lied. I said yes I lied. Do not believe me. I lied and I said to him "The man who could have killed me numerous times," I said no, I was going for one of my girls from the organization. Then he went after me. Until I had to go to [deceased judge], who then called Wanda.
The mother unfortunately will do whatever is necessary to interfere with and prohibit the child from having a normal relationship with the father. The court has considered greatly the possibility of economically penalizing the mother for her past behavior but the court truly believes that her actions rise to the level of an illness. Her testimony that it was the husband who was in control is belied by the evidence, her own testimony and her own actions. The claim that she was a victim of egregious domestic violence ( Havell v. Islam, 301 AD2d 339, supra), is belied by the evidence presented. She was no doubt though a victim of domestic violence and verbal rage. The court does not and will not minimize its disdain to the fact that at some times during the marriage there were incidents of violence and loss of control.
As a general rule in New York, marital fault is not to be considered by the court for the purposes of equitably distributing the marital assets ( see O'Brien v. O'Brien, 66 NY2d 576, supra; see also Blickstein v. Blickstein, 99 AD2d 287).
The exaggerated incidents of abuse as described in this case, do not rise to the level of "egregious conduct" that "shocks the conscience of the court", and therefore, it would be inappropriate for the court under existing New York law to consider domestic violence when dividing the marital estate ( see Blickstein v. Blickstein, 99 AD2d at 292, supra). In Blickstein, the court stressed the idea that the basic assumption underlying equitable distribution is that the marriage relationship is to be viewed as an economic partnership in which both parties have contributed to the accumulation of marital assets. Upon dissolution of this relationship, each party should receive a fair share of what was gained through the parties' joint efforts. As a result, it would be inconsistent with this view to consider non-economic factors such as marital fault when dividing economic assets. However, the court went on to explain that there could be rare cases in which marital fault may play a role in equitable distribution, but such cases "will involve situations in which the marital misconduct is so egregious or uncivilized as to bespeak of a blatant disregard of themaritalrelationship — misconduct that shocks the conscience' of the court thereby compelling it to invoke its equitable power to do justice between the parties." ( see also O'Brien, v. O'Brien, supra, 66 NY2d 576, supra)
In the seminal case on egregious conduct, Havell v. Islam ( 186 Misc 2d 726, affd 301 AD2d 339), plaintiff wife produced evidence of years of physical abuse by her husband, often resulting in serious injuries. This pattern of abuse culminated in a violent, murderous assault, after which the husband was sentenced to be incarcerated for 8 1/3 years. In her trial opinion, Judge Silbermann held that the husband's conduct was so outrageous as to warrant depriving him of his share of the marital assets. This decision did somewhat expand the "egregious conduct" standard by allowing for a pattern of ongoing, serious domestic violence over several years to be considered in equitable distribution. However, the court concluded by stating that in order to be considered, such violence must be "proven by competent testimony and evidence." ( id. at 732). This element is lacking in the case now before the court. Defendant's testimony has proven to be somewhat incredible and inconsistent. Also, no credible witnesses testified to corroborate her testimony regarding her husband's history of violent behavior other than those she claims exists and her own self diagnosed injuries. The letters admitted into evidence were signed by the husband. The court does believe, though, that defendant dictated the letters and plaintiff signed them. These letters do not rise to the competent evidence requirement set forth in Havell. Also, unlike the husband in Havell, there is no competent evidence to indicate that plaintiff ever perpetrated any domestic violence against his children. In fact, through the trial the wife admitted same. In Brancoveanu v. Brancoveanu ( 145 AD2d 395) there was evidence that the husband repeatedly beat his wife and at one point hired someone to murder her. The facts of the present case are clearly distinguishable from those in both Havell and Brancoveanu. It should also be noted that in Havell where there existed numerous instances of evidence, including hospital records, to prove that serious physical harm had been done to the wife. The court doubts that the husband would have signed the letters if there had some level of violence. The preparation and signing of these letters are more indicia of a very trouble marital relationship.
In Weilert v. Weilert ( 167 AD2d 463), defendant husband had a history of alcohol problems, he verbally and emotionally abused his wife for several years, and on a few occasions he struck her as well as their child. In the face of this evidence, the Appellate Division still concluded that the husband's conduct did not satisfy the "egregious" standard set forth in Blickstein. "While the defendant herein may not have been a model husband or father, this is not one of those rare cases where marital fault should have entered into the equitable distribution equation." (id. at 464). Another case along the same vein is Kellerman v. Kellerman ( 187 AD2d 906). In that case, the Appellate Division overturned the Supreme Court's decision to allow marital fault to be considered in equitable distribution. The court noted that "[d]efendant's conduct, which consisted predominantly of verbal harassment, threats and several acts of minor domestic violence, is in our view not so outrageous as to shock the conscience of the court and to justify his divestiture of certain of the parties' marital property." ( id. at 908; see also Stevens v. Stevens, 107 AD2d 987, [holding that the court could not consider marital fault for purposes of equitable distribution where wife had history of physically and verbally abusing husband and even stabbed him with a kitchen knife]). These cases demonstrate the reluctance of the appellate courts to find all but egregious domestic violence should be a factor when it comes to equitable distribution.
After hearing all of the testimony (at one point the court even sat in the well of the court to observe defendant testify on cross examination), the court concludes that the standard of egregiousness established in this State has not been met.
The court alsohas had the opportunity, first hand, to view defendant's ability to enter an enraged state in the courtroom which she clearly would enter into during the marriage.
If a parent is in need of medical treatment for an organic disease, would the court, at first instance, limit the amount of support or equitable distribution that she received? Clearly, the answer is no. This court could not in good consciousness economically penalize the mother at the present time for her acts. Her testimony revealed a fear in many ways that the husband would convince the world that she is crazy, as she put it, and that she is not. Yet, her testimony revealed more than idiosyncratic behavior, more than annoying personality traits, but a deep rooted inability to allow the father to have a relationship with the child and an absolute need to control each and every situation, truly believing the child will be harmed by the father. She has actively and passively exposed this child to that fear on an ongoing basis, and now, for a number of reasons, the child fears the father.
Thus, the court at this juncture will not penalize the mother for her present mental state but will direct her forthwith to stop speaking with the childabout the father, and more importantly to stop involving the child in the litigation by letting her overhear her conversations with others, or leading the child to believe that the pendente lite economic order is causing the mother great economic harm. The mother's attempt to utilize the good name and reputation of well-respected members of the community and make them into fact witnesses under very controlled circumstances is circumspect. For example, thechild"happened" to be with the mother at the headquarters of a local newspaper editor on the Friday before Father's Day, and the editor happened to tell the child to send her father a Father's Day card, and that editor then encouraged, to no avail, the sending of a card, is quite circumspect, especially in light of the fact of that editor was then called as a witness in the latter part of the trial to testify as to the event. The motives of the community leader may have been genuine and well intentioned; however, the mother's timing was purposeful and manipulative. Similarly, the calling to the stand the widow of a deceased judge to testify that she gave money to the wife as charity to defray the cost of litigation, is circumspect.
The court has fully disclosed immediately on the record that the court many years ago had come in contact with the editor and the widow of the deceased judge.
In the present case, the parties were married for 31 years and both significantly contributed to the marriage; plaintiff provided for a comfortable lifestyle and defendant, raised their children and maintained the household, spirited the parties' charitable organization, and encouraged, fostered and assisted in selection of property, employees and even the husband's progress at dental school. During the early years of the marriage defendant worked and plaintiff attended dental school. Plaintiff earned his dental degree and his license to practice during the marriage. The husband built his practice after many years of marriage and with the active encouragement and support of his wife. He will continue to have the ability to earn greater sums of monies than the wife. The wife remains the primary parent to the child, as she was to all of the children during this long-term marriage. The court, by crediting certain assets as having been received byoneparty or the other, has adjusted for a transfer or dissipation. Both parties will be eligible for social security in 10 years, wherein the wife will be 62, the husband 66. Given the joint efforts of the parties in this marriage, the wife's support and encouragement during the early years, the contributions to the household, the transfers of assets already made, and the fact that all, if not most, of the assets were accumulated during the course of this long-term marriage, in making the equitable distribution award the court has considered its award of maintenance and the health claims of both spouses as well. Therefore, equitable distribution here should be equal distribution. The martial assets, including plaintiff's enhanced earning capacity from his dental degree and license as well as his practice, should be distributed equally. The court will make the final adjustment in recapitulation at the end of this opinion to reflect that each party will receive credit for one half of each marital asset.
Q.C., Inc. (dental practice and Article 28 clinics)
This business entity comprises plaintiff's dental practice and the clinics. Mr. Liebman of Klein, Liebman, the court-appointed neutral appraiser, valued plaintiff's equity in Q.C. according to generally accepted methods of determining market value, i.e., the amount a willing buyer would pay. Liebman's report states that Q.C. is 100% owned by plaintiff and consists of three principal business units as follows: (1) a dental practice located in Queens, New York; (2) a full time medical clinic located in Brooklyn, NY; and (3) 15 Part-time medical clinics located throughout New York City (which have been discontinued as of January 2006).
Due to legislative changes that impacted Q.C., it was valued under three scenarios, differing by the period of prior income used as a basis for likely future income. Q.C., Inc.: scenario No. 1: 2002 2004 3-year weighted average $1,183,000; scenario #
2: 2004 only $1,103,000; scenario #
3: 2005 annualized closing of clinics $731,000.
Liebman's valuation of Q.C. based on the 2005 annualized income, scenario #
3, is most appropriate for determining the distributive award because it is most representative of his actual future earnings even though it is the lowest of the three scenarios that the neutral appraiser proffered (see McSparron v. McSparron, 87 NY2d at 285, supra [the court favored a more pragmatic and individualized analysis based on the particular licensee's remaining professional earning potential]).
It is unrefuted that the utilization of the Article 28 clinics was in the process of being eliminated or scaled back by governmental policy decision post summons. Thus, scenario #
3 is most appopriate because the court takes into account this event which plaintiff clearly had no control over.
To value Q.C., Liebman considered its various business segments, and valued the dental practice independently from the remaining operations of Q.C., Since Liebman was able to identify a sufficient sample size of transactions of dental practices, he valued the dental practice utilizing the market approach. Liebman was unable to identify a sufficient sample size of companies similar to Q.C., with respect to the medical clinic operations of Q.C., As a result, to value the medical clinic operations of Q.C., he utilized the income approach.
In applying the market approach to value the dental practice, a sufficient sample size of similar companies was used to develop indicators of value, which were then applied to Q.C. to determine its value. The indicators of value used were markets multiples derived from guideline companies such as price-to-revenue multiple and a price-to-owner's cash flow multiple.
Based on the market approach, Liebman opined that the value of plaintiff's 100% interest in the Queens Dental Practice as of December 31, 2004 was $350,000.00.
In applying the income approach to value the remaining operations, Liebman relied on the excess earning method. The excess earning method is based on Revenue Ruling 68-609, and involves the determination of two components of value: net tangible assets and goodwill. Consistent with I.R.S. Revenue Ruling 68-609, goodwill is determined by calculating normalized excess earnings after allowing for a reasonable return on net tangible assets, and then applying an appropriate multiple to these excess earnings. Based on the excess earnings method, Liebman opined that the indicated value of Q.C.'s Extension and part-time medical clinics is $381,000.00. In sum, Q.C. was valued by the neutral appraiserfor a total value of $731,000.00.
Defendant's expert witness, Martin Randisi, testified on cross that he agreed with Liebman's valuations of Q.C. and D.S.Services. Randisi agreed in his testimony that the 2003 or 2004 income values for Q.C. cannot be used in its valuation stating: "We have to deal with what's out in the market today". Liebman's valuation report states that the decline in revenue for Q.C. is attributable to the closing of three extension clinics by May 2003 and changes in managed care which have resulted in a decrease in reimbursements to providers. Furthermore, Q.C. was doing the billing for 15 Article 28 part-time clinics as of December 31, 2005. According to Liebman's report, the New York State Department of Health approved the closure of Article 28 part-time clinic, including Q.C.'s, effective January 1, 2006. In addition, the statistical assumptions and discount rates used by Liebman in his analysis seem reasonable and are not presently in dispute.
For reasons stated heretofore, each party is awarded one half interest in this asset.
D.S.
Additionally, plaintiff owns an entity known as D.S.. This entity which is separate from the Article 28 clinics is a mobile dental service.
Liebman concluded that the market approach was most appropriate to value D.S.. The fair market value of D.S. is $83,000.00 if using a price-to-revenue multiple, and is $96,000.00 if using a price-to-owner's cash flow multiple. Leibman opined that the value of the husband's 100% interest in D.S. as of December 31, 2004 is $96,000.00 based upon the market approach. The court notes defendant's expert Randisi agreed.
In his testimony, Liebman noted that there was a typographical error in his report.
For the reasons stated heretofore, each party is awarded a one half interest in this asset.
Plaintiff's Enhanced Earning Capacity
The enhanced earning capacity due to acquisition of a professional license during the marriage is clearly a marital asset subject to equitable distribution ( see Grunfeld v. Grunfeld, 94 NY2d 696, supra; McSparron v. McSparron, 87 NY2d 275, supra; O'Brien, O'Brien, 66 NY2d 576, supra, DRL 236 [B] [1] [c] and 236 [B] [5] [c]). Enhanced earning capacity is the present value, after tax, of the incremental income an individual earns over his or her expected work life, which can be attributable to additional education or training achieved during the marriage. In considering to professional degrees and licenses, the incremental income is considered to be the difference between the expected earnings without the additional degree and license [base-line earnings] and anticipated income with the degree and license [top-line earnings].
During the parties' marriage, plaintiff attained his dental surgery degree and New York State dental surgery license. Plaintiff completed 100% of his dental degree education during the marriage and therefore, there is no coverture. Prior to 2002, plaintiff had practiced dentistry for approximately 25 years. Since 2002, he served as President of Q.C. (Q.C.) a business that he manages which operates a dental practice and medical clinics. He also operates a company known as D.S. (D.S.). Valuations of these businesses were presented in a separate report by Liebman.
Plaintiff's enhanced earning capacity from his dental degree and license was valued by a neutral appraiser, Liebman, at $296,000.00, as of December 20, 2004. As of the date marriage, plaintiff had completed a Bachelor's degree. Accordingly, his baseline earnings as of the valuation date are $80,000.00.
Liebman expressed that it is appropriate to use the top-line earnings of $150,000.00 because it represents the statistical level of earnings of a dentist as well as reasonable compensation for his managerial duties (the husband's 2004 W-2 Salary was $151,000). In addition, Liebman utilized all his income in excess of $150,000 in valuing his business interests, thus avoiding double-counting.
Liebman calculated the present value of the difference in the husband's baseline and top-line earnings from the date of commencement of divorce until the date of plaintiff's expected retirement, taking actuarial factors into account. Relevant risk factors were considered, increasing the risk-free 3% discount rate to the implied risk adjusted discount rate of 8% that was used to calculate present value. According to Liebman's testimony, the present value of the husband's enhanced earning capacity attained during the marriage, as of December 20, 2004, is $296,000.00 assuming a work-life to age 66 (annual net enhanced earnings of $39,050.00). Defendant's expert witness Martin Randisi stated that he agreed with Liebman's valuations of the husband's enhanced earning capacity.
Although plaintiff is no longer technically a full time practicing dentist, his degree undoubtedly facilitated his ability to open and operate dental and health clinics, as well as to obtain the Article 28 license. Also, the top-line earnings of $150,000.00 used in his enhanced earning capacity analysis is approximately his W-2 salary and is also in line with reasonable compensation for his managerial duties, whether or not he goes back to practicing dentistry exclusively or continues operating clinics. His earning capacity is therefore, enhanced by his degree and license, and like any other marital asset, the present value of his enhanced earning capacity, $296,000.00.
For the reasons heretofore state, each party is awarded for equitable distribution purposes one half interest in this asset.
In the instant case, the court believes the most practical approach is to distribute the full 50% of the value of the husband's license and of Q.C. and D.S. ($296,000.00 + $731,000.00 + $90,000.00 = $1,117,000.00, and 50% of $1,117,000.00 = $558,500.00). Thus, plaintiff should maintain his businesses as an ongoing interest and half their value should be credited to defendant.
Defendant's Enhanced Earning Capacity
Liebman valued defendant's enhanced earning capacity using the same method of valuation as for plaintiff. At the date of marriage, the highest level of education defendant had completed was her high school diploma. Accordingly, Liebman used $34,000.00 for her baseline earnings. Regarding top-line earnings, Liebman offered two scenarios: Scenario A: given the fact that defendant has not been employed in a paid position during the thirteen years prior to the date of commencement of divorce, if actual compensation is utilized, then her top-line earnings would be zero. Consequently, the value of her enhanced earning capacity would be zero; scenario B: during the parties' marriage, defendant attained a Bachelors of Science Degree in Education, a Master of Arts Degree in Recreational Therapy, a Post-Masters Certificate in Aging, and a Masters Degree in Social Work, along with New York State Licensure in Social Work. Defendant, earlier in the marriage, worked on a part-time basis selling emergency medical help devices (Life Line) and other for various jobs, and also volunteered for her founded charity for the past seven years; therefore, no actual earnings stream can be relied on for top-line earnings. Nonetheless, Liebman relied on reasonable compensation, based on industry research, for a social worker with her Masters Degree as well as a recreational therapist to determine $50,000.00 as her top-line earnings. Since she began her post-secondary education prior to marriage (college courses of approximately one year prior to marriage), the coverture attributable to defendant's degrees attained during marriage is 82%, according to Liebman. Thus, the present value of defendant's enhance earning capacity using this scenario is $69,000.00.
Defendant's enhanced earning capacity derived from her degrees and license is deemed to have a value of $0, following Liebman's first scenario valuation. The value of a degree should be based upon "actual prior earnings rather than on the estimated earnings of a hypothetical license holder." (see Grunfeld v. Grunfeld, 94 NY2d at 296, supra; McSparron v. McSparron, 87 NY2d at 275, 286, supra). "Where the licensee has already embarked on his or her career and has acquired a history of actual earnings, the foregoing theoretical valuation method must be discarded in favor of a more pragmatic and individualized analysis based on the particular licensee's remaining professional earning potential."( see McSparron v. McSparron, 87 NY2d at 285, supra). Liebman's first scenario valuation of defendant's enhanced earning capacity was based on her actual prior earning to reach the value of $0. Therefore, $0 is more representative of her actual earning potential than Liebman's second scenario valuation, which was based on a hypothetical person, to arrive at a present value of $69,000.00. In sum, based on an individualized analysis of her remaining earning potential, defendant's enhanced earning capacity should have no monetary value regarding the equitable distribution of the parties' marital assets given the number of years out of the workforce and her present psychological state, significant employment in the near future is not likely. Her admirable devotion to worthwhile charitable activities accomplished during the marriage with the consent and encouragement of plaintiff, should be considered and is not "employment".
Liebman's higher valuation of defendant's enhanced earning capacity at $69,000.00 should not be used as plaintiff claims. The neutral appraiser, Liebman, testified that whether the value is $0 or $69,000.00 depends on which methodology the court adopts: one based on statistical averages or one based on the actual history of earnings. The Court of Appeals in McSparron, id. and Grunfeld, id. clearly favors the latter. Plaintiff also claims that defendant's malpractice policy is an indication of earning potential. The court disagrees. Liebman persuasively testified as to the difficulty in drawing any evaluation conclusions that a desire to legally protect oneself (obtain malpractice insurance) necessarily indicates earning potential.
In sum, because the Court of Appeals clearly favors a more individualized analysis based on the particular licensee's remaining professional earning potential, defendant's enhanced earnings capacity should be valued at $0 in calculating equitable distribution. The Court of Appeals in McSparron and in Grunfeld held that a theoretical valuation should be discarded in favor of the actual earning potential. Moreover, even if the wife were to work, her income, according to the vocational expert, Dr. Kincaid, would not be significantly enhanced by her degrees or license; her statistical baseline income falls within the potential income range opined by Dr. Kincaid. Thus, based on her actual earning history, defendant's enhanced earning capacity should have no monetary value regarding the equitable distribution of the parties' marital assets.
Marital residence located in the South Brooklyn section, Brooklyn, New York, value$2,000,000.00 court-appointed neutral appraisal; $2,200,000.00 value asserted byplaintiff and his expert :
Significantly, the court is loath to order this house sold. Given the level of anger and fear that plaintiff has exhibited to keep both parties as owners of the property until the youngest child is 21 would put an unfair further strain on the parties, increasing the need for them to have to deal with the joint ownership of real estate which would need to be jointly maintained. It is well established that where a child is entrenched in a community it is best to try and maintain the child in the residence during her or his minority. Here, while this is a large house and the single most valuable asset of the marriage, the court must consider the emotional stability of the child as paramount. This child is in a state of emotional extremes; to uproot her now would be inappropriate.
The wife, in consideration of the awarded equitable distribution and support payments, should be able to meet the upkeep costs of the residence, especially since it is debt free. Therefore, simultaneously with the transfer of the assets herein(within 60 days of judgment), the husband shall transfer to the wife title to the residence. Defendant will have minimal disruption in her and the child's lifestyle by the wife owning the marital residence. Joint ownership of this asset would create enormous ongoing conflict.
In the case at bar there are sufficient assets to be exchanged which would allow for the transfer of this property as opposed to maintaining the home until the youngest is 18 or 21 years of age ( cf. Mazzone v. Mazzone, 290 AD2d 495). The wife has not only sought exclusive occupancy but title to the home. The husband, by necessity in order to continue his business interests, has sought title to those assets including the location they are operated. Fairness and equity dictate, where there are sufficient assets exist to allow for transfer of titles, that title to the wife. Clearly, her earning abilities are far less than the husband's, his potential for future financial security are far greater, even though he reports he suffers from controlled diabetes. To the contrary, the wife's earning capacities are not as promising; her future financial, economic and emotional security is inter alia in that home.
For the reasons heretofore stated, a 50 — 50 distribution of this asset which was purchased and maintained during the course of the marriage is appropriate.
Two different real estate appraisers have valued the marital residence in Brooklyn, New York. Joseph F. Monti, the court-appointed appraiser, valued the property at $2,000,000.00, while A.L. Santagata, plaintiff's expert, valued the property at $2,200,000.00. Mr. Monti, who submitted his appraisal report on July 15, 2005, used comparable sales in the area to reach his estimate. He examined five houses within three blocks of the home, each with the same type of room layout, utility, and the construction as the subject property. These dwellings were sold for an adjusted sale price of $1,922,000.00, $2,155,000.00, $1,836,000.00, $2,225,000.00 and $1,967,000.00. These sales were the most recent in the area, and thus a good indicator of market conditions at the time. Monti averred in his report that he relied on this market data to arrive at his final valuation of $2,000,00.00.
Santagata, plaintiff's appraiser, submitted his report on June 8, 2006. Like Monti, he also used comparable sales in the area to compute his estimate of value for the marital residence. Santagata used four comparable sales as opposed to five. However, only two of these sales took place within one year of June 8, 2006, the date on which Santagata viewed the subject property. Therefore, two of his comparable sales would not accurately reflect market conditions at the time of the appraisal. Those two houses were sold for $2,500,00.00 and $2,000,00.00. Mr. Santagata did not rely solely on comparable sales and market date in order to value the residence, but he also took into account the uniqueness of the zoning in that area. The property is located in what is known as the "special Ocean Parkway District" which is an R2X zone. This special zoning allows for houses to be extended farther than they would in a normal residential R2 zone. This allowance provides that larger houses may be built on these lots, and thus they are more valuable than others. Also, Santagata noted that this area is quite desirable because of its proximity to certain religious institutions. The court, though, rejects that portion of Mr. Santagata's testimony that the fact that the house is directly behind a synagogue and therefore may be desirable for purchase by the synagogue, as mere speculation. The fact that the house is near religious institutions is, though, a factor to consider. The court values the marital residence at $2,200,000.00 ( see Bartek v. Draper, 309 AD2d 825, supra).
Co-op Apartment
The cooperative apartment presently occupied by the husband, in the South Brooklyn section of Brooklyn, New York, is valued at $280,000.00 by the court-appointed neutral appraiser which is uncontroverted.
It is uncontroverted that this property is marital and titled in the wife's name and is debt free. The husband, since his voluntary vacatur of the marital home, has lived in this apartment and maintains his residence in this building. The husband in his proposed statement of disposition states that if it is not necessary to sell same, he should be awarded occupancy and title to the property.The court agrees. This will insure that there be no further disruption in the husband's living situation as well. He, too, will be able to continue to live in the same community, if he so desires. The apartment shall be transferred to the husband simultaneously with the other transfers.
For the reasons heretofore stated, an equal distribution of this asset which was purchased and maintained during the course of the marriage is appropriate.
Israel Apartments
1. Apartment #
13, Jerusalem, value $300,000.00 uncontroverted, the first apartment purchased in 1999 wherein the parties' resided while living in Israel which is custom decorated and extensively furnished;
2. Apartment #
22, Jerusalem, value $270,000.00 uncontroverted, purchased in 2000 for the purposes of an investment / income property and a residence for the children if any chose to relocate to Israel; decorated but not as extensively as marital residence.
3. Apartment #
24, Jerusalem, value $400,000.00 uncontroverted, purchased in 2001 or 2002 which the parties' renovated and redecorated and which as of November 2004 is rented out and is income producing.
These apartments were appraised by a neutral court-appointed appraiser.
These properties in Israel purchased during the course of the marriage totaling $970,000.00 are uncontroverted in value. While they refer in various testimony that certain property was purchased for one child's use or another, they are all titled in the wife's name. The court, for the reasons stated heretofore, believes that a 50% distribution to each of the parties would be appropriate.
It appears that at the present time each party is requesting title to the properties in Israel. Additionally, there has been a dispute as to the management and rents associated with these properties. At the present time that the husband has been in contact with the management company which manages the properties and collects rental income and the wife has been excluded from the operational management of the properties. The escrow fund appears to be under the control of the management company. The parties shall jointly execute a release and request for an accounting of rents and expenses from the date of commencement of the action through the date of judgment from the management company. At the time of transfer any net profits then existing after expenses generated or received or escrowed and not disbursed shall be shared equally. Since the husband has been maintaining all of the marital properties, the wife's request to return any gross or net "profit" generated during the litigation which does not appear to be significant is denied.
In order for the parties to either maintain their lifestyles of spending time in Israel (or if the husband decides to move back to Israel) or receive rental income for these assets, the court directs that the apartments at #
13, Jerusalem, (the marital apartment) valued at $300,000.00, including all furnishings, and the apartment at #
22, valued at $270,000.00, shall be titled and belong to the husband. In order to assure that the wife also has an apartment in Israel to either reside in, rent or sell, apartment #
24, value at $400,000.00, shall belong to her, inclusive of all furnishings.
The court believes that each party is entitled to 50% of the value of these apartments. Any deeds and/or transfer of documents shall be executed and delivered within 60 days of the signing of the judgment.
Location of Queens Dental Office, Queens, New York, value $618,000.00(value asserted by court-appointed neutral appraiser); $715,000.00 (value asserted bydefendant's expert)
In order to evaluate the property value of the Queens medical office the court-appointed Stephen Gutleber, Jr., as an independent appraiser pursuant to 22 NYCRR 202.16. Defendant hired Martin Levine to review Gutleber's appraisal reports of July 2005, updated for trial on May 2006. The court-appointed independent appraiser valued the property at $618,000 based on converting the Medical Office to a two-family residence. Defendant's expert valued the property at $715,000.00 based upon its continuous use as a medical office on the lower level and professional offices on the upper lever. Levine testified in Court. The neutral appraiser did not testify during the trial; his report was admitted into evidence on consent, pursuant to 22 NYCRR 202.18.
The property is currently used as a dental office. This office is located in a converted two family residence. There is a valid certificate of occupancy for the commercial use of the property in the residential area. The property has been used for the purposes of the dental office for quite some time. The entire house is converted for use as a commercial space. Plaintiff's dental practice and medical equipment businesses are based in the Queens office and therefore, the real estate provides a continuous stream of income.
The disagreement between the two experts is whether the highest and best use of the property would be as commercial or residential space. According to Gutleber, which defendant's expert doesn't question, the definition of the highest and best use is:
The most profitable, likely use to which a property can be put. The opinion of such use may be based on the highest and most profitable continuous use to which the property is adapted and needed or likely to be in demand in the reasonable near future. However, elements affecting value which depend upon events or a combination of occurrences which while within the realm of possibility, are not fairly shown to be reasonably probable, should be excluded from consideration. Also, if the intended use is dependent upon an uncertain act of another person, the intent can not be considered.
The Gutleber report concludes that the highest and best use of the property would be to convert the property, or at least the upper level of the property, to residential space. Predicated upon that determination, the expert used the market value approach to determine that the value of Queens is $618,000.00. This assessment is based upon evaluating the five comparable properties (not disputed by defendant's expert) in relation to the conversion of the medical office into residential space.
Defendant's expert analyzed the documents prepared by the neutral appraiser and performed a desk review of the expert's appraisal.
Levine generally agreed with the comparable properties that the neutral expert used, however, he disagreed with the techniques used to analyze the data. In his report and testimony, Levine opined that the highest and best use of the property would be as a medical office facility rather than a two family residence. On direct, Levine testified that such a use would be justified given that the property's "current use is as a medical office facility. It's been used for that for sometime. It's configured as medical office space. It has a certificate of occupancy for professional office use in a two family residential." As a result of this approach, Levine analyzed Gutleber's comparables as in relation to the medical office facility rather than as in relation to the residential facility. He made adjustments to the court-appointed expert's analysis.
It appears to the court that since the property has been utilized as a medical office for many years and will continue to be used as commercial space, the adjustments contained in the Levine report are valid and agrees with the conclusion that the highest and best use of the property would be to continue to use it as a medical office. The adjustments made by the neutral appraiser based upon residential room size and location to the house of worship are more germane if the residence was to be valued as a residential property. That has not been either its recent past or intended future use nor is that the present certificate of occupancy for the property.
As such, the court finds that the fair market value of the property as appraised closest to the time of the testimony to be $715,000.00 based upon the Levine report and testimony. It is the court's opinion that this property should be titled in the husband's name, where his businesses are presently located. Any inter-spousal transfer made during the course of the marriage does not divest the property of its marital status. This will give the husband unfettered use and control over the property from which his significant source of income is derived. The court also recognizes that with the curtailment of Article 28 facilities by the government, the husband's continued sources of income will most likely be, in part, derived from the dental practice.
Simultaneously with the transfer of the assets herein, the wife shall transfer to the husband title to this propertyand he shall be credited with receipt of same. Each party has an equal interest in the value of this asset.
The Consequences and Costs of Transfer of Real Estate and Cooperative Apartments
Inasmuch as the parties are each receiving an equal value in each of the properties, they shall be equally responsible for any transfer taxes, capital gains, or usual and customary reasonable closing costs to effectuate transfer of the properties.
Bank Accounts :
As stated heretofore, the court has determined that the appropriate date to calculate the value of various bank accounts is the date of commencement. In doing so, the court will identify each account and make appropriate adjustments if monies are found to have been removed from the account. Unless specified otherwise for the reasons stated in this opinion previously, each party shall have a one half interest in these accounts.
Citibank, account number ending in 1119, value $64,649.63
At the time of the commencement of the action this account was jointly divided by defendant when she took one half of the proceeds of that account and placed it in her own name. As such, each party will be charged with the receipt of $32,324.81. Said sum was left by defendant to plaintiff.
Citibank account number ending in 1282, value $70,287.98
At the commencement of the action defendant withdrew the sum of $35,143.99 from this account and left a balance for plaintiff of $35,143.99. As such, each party shall be credited with the receipt of one half of the value of the account or $35,143.99 each.
Citibank, account number ending in 1303, value $68,935.75
At the commencement of the action defendant removed the sum of $34,467.88 from this account and left a balance for plaintiff of $34,467.87. As such, each party shall be credited with the receipt of one half of the value of the account or $34,467.88 each.
Bank of Jerusalem, account number ending in 5667, value $223,442.88
At the commencement of the action defendant withdrew the sum of $111,721.44 from this account by wire transfer and left a balance for plaintiff of $111,721.44. As such, each party shall be credited with the receipt of one half of the value of the account or $111,721.44 each.
Citibank, account number ending in 3316
At the commencement of the action Citibank account number ending in 3316 was comprised of two portions, the "charity account" and defendant's personal account.
In the original proposed statement of disposition, plaintiff referred to this account as "Citibank checking 3316". He stated that the account had $977.00. In the amended statement of disposition he referred to the same account as the "charity account" with a balance of $6,283.00 in it. Plaintiff testified that the amount reflected the figures provided by defendant's second attorney. In both her proposed and amended proposed statements of disposition, defendant refers to this portion of the account as the "charity account" with a balance of $6,283.26.
Defendant, in her original and amended proposal statement of disposition refers to Citibank account 3316. This, according to the bank statements in evidence, is a reference to the checking part of the account. She claims $81,963.98 was in that account at the time of commencement. The court believes that this sum of money is not subject to equitable distribution because plaintiff has not claimed these monies in his proposed statement of disposition. Additionally, it appears that this money emanated from defendant's self-help funds appropriated by her from the joint accounts.
The charity account was utilized to make donations after the parties had agreed to "tithe" their income during the course of the marriage. There was significant testimony about the generosity of the parties during the course of the marriage in funding various charitable causes including but not limited to the organization founded by defendant. This account as of commencement contained $6,283.26. Defendant totally liquidated this account and took possession of the funds for her own use and as such should be charged with $6,283.26. Each part had a one half interest in this account.
Citibank, account ending in 6987, value $20,000.00
Defendant, in her memorandum of law and proposed statement of disposition, requests that account at Citibank, ending with 6987, valued at $20,000.00 be distributed as part of equitable distribution. This account also appears in plaintiff's 12 in evidence which is defendant's affirmation and verified accounting dated August 11, 2005. This account is in the possession of defendant. The court, for the reasons heretofore stated, finds that each party has a one half interest in the value of this account as of the date of commencement (value as of November 16, 2004 in accordance with defendant's verified accounting) and as such defendant shall be charged with having possession and receipt of the $20,000.00 in her possession at the time of commencement. Each party has a one half interest in these funds.
Citibank, account ending with 1433
The joint Citibank account ending in 1433 contained $22,462.00 at the time of commencement. In November, 2004, defendant depleted the account. She wrote checks totaling $8,063.00 to the school for the youngest daughter, $1,700.00 for a doctor visit during the week of November 7, 2004, and various checks to "cash" totaling $12,699 and endorsed by her parents. Plaintiff is asking that except for the $1,700.00 medical fee, the amount be charged to defendant. Defendant will not be charged with $8,063.00. This child has always attended Yeshiva and it is clear to the court that the parties have always agreed that all of their children would attend Yeshiva. This was a debt, properly paid from marital assets. Defendant wife shall not be charged with the $1,700.00 medical bill, which the husband agrees is a marital debt. Defendant wife, however, will be charged with the sum of $12,699.00 for checks written out to cash. In the event the wife received a reimbursement from insurance for the $1,700.00 (or any part thereof) medical bill, that reimbursement shall be shared equally.
Each party has a one half interest in the balance after these adjustments.
Custodian Accounts Defendant Acts as Trustee
1. Washington Mutual, account ending with 5054, value $16,467.64, in trust for the youngest son, as of the date of the commencement.
2. Citibank, account ending with 9017, value $25,133.00, in trust for the youngest daughter, as of the date of the commencement.
3. Citibank, account ending with 9025, value $25,133.00, in trust for the youngest son, as of the date of the commencement.
4. Washington Mutual, account ending with 0886, value $5,399.00, in trust for the eldest son, as of the date of the commencement.
5. Atlantic Liberty, account ending in 6800. The Atlantic Liberty account ending in 6800 appeared to be in the possession of defendant at the time of the commencement of the action. The amount in the account was $20,155.09. There is a dispute as to whether the said account was originally given to defendant as part of her "security", or whether the account was a "Totten trust" account for the eldest daughter. Regardless, this money is subject to equitable distribution and will be treated as such. The wife has already withdrawn and spent this money; therefore $20,155.09 will be charged to defendant.
Each party has a one half interest in this account.
The Totten trust accounts (heretofore enumerated as 1 through 5) which appear to have been in the possession of defendant are assets subject to equitable distribution. Plaintiff's assertion that they should be given to the children because that is what the parties intended, does not relieve or divest the court of the obligation to equitably distribute these assets. Defendant's assertion that she should hold these accounts as trustee for the children and the children are the beneficial owners is also not viable. These assets appear to be Totten trusts.
A Totten trust ( see Matter of Totten, 179 NY 112, 71 NE 748) is essentially an account which the depositor holds "in trust for" or "as trustee for" another person, the beneficiary. The trust may be revoked during the lifetime of the depositor by withdrawal of the funds or other affirmative acts, but if the depositor predeceases the beneficiary without revoking the trust, the beneficiary takes the balance of the funds at the time of the depositor's death without the funds passing through the depositor's estate. The account, in effect, is an alternative testamentary disposition ( see Eredics v. Chase Manhattan Bank, NA, 790 NE2d 1166; see also Barrick v. Barrick, 83 AD2d 290, 444 NYS2d 98 [Totten trust is tentative one, revocable at will]; Rametta v. Kazlo, 68 AD2d 579 418 NYS2d 113 [Totten trust account vests no interest in beneficiary, but, rather, owner of account is free to dispose of the funds in any manner]; Matter of Totten, 1904, 179 NY 112, supra [A deposit by one person of his own money, in his own name as trustee for another, standing alone, does not establish an irrevocable trust. Such transfer is revocable by the transferor, at will, during his lifetime or on his death unless the transferor has transferred title to the beneficiary by some unequivocal act]).
In a divorce action, a Totten trust can be divided for equitable distribution purposes as a marital asset ( see e.g. Marrone v. Marrone, 69 AD2d 898, 415 NYS2d 892 [Where Totten trust in favor of parties' son was in the name of both parties, each party had a one-half interest in the account and it should have been so divided in divorce action]). A Totten account created by parties in a divorce action should be considered a marital asset available for equitable distribution because the custodian of the account has complete control.
While the parties appear to agree that they want their minor and adult children to have the eventual use of the monies, who should be trustee and when the monies should inure to the benefit of their children is in dispute. As such, each party shall be entitled to a 50% interest in said accounts and they are then able to designate beneficiaries, if any, that they deem appropriate for their share.
Additional Property : Parties' Jewelry and Furs
"[G]ifts given by one spouse to another during the marriage do not constitute separate property and are subject to equitable distribution" ( Feldman v. Feldman, 204 AD2d 268, 269, citing Foppiano v. Foppiano, 166 AD2d 550; accord Chase v. Chase, 208 AD2d 883, 885). From this it follows that the remainder of the jewelry, which was purchased during the marriage by either plaintiff or defendant, using marital earnings, is found to be marital property ( see Ferina v. Ferina, 286 AD2d 472, 474).
The parties in their proposed statement of disposition and/or post trial submissions request that the diamonds and jewelry be sold and the proceeds shared. At trial five appraisals were submitted: (1) December 1999, one round brilliant diamond 1.70 ct. GJA cert 070 $15,500.00; (2) December 1999 one round brilliant diamond 1.72 ct. GIA cert 059 $15,500.00; (3) December 1999 one pair 18 kt gold diamond earnings 172 diamonds 3.50 ct. $4,400.00; (4) ladies 18 kt gold diamond necklace 45 round diamond 3 ct. $4,500.00; and (5) August 2001 14 kt gold tennis bracelet with 51 diamond 8.08 ct. $6,500.00. Additionally, an insurance policy bill (August 3, 2006) was introduced for two furs: one phantom sheared beaver $2,700.00 and one ranch mink coat $5,500.00. All of this jewelry and furs shall be jointly sold and the proceeds shared within 60 days from the date of judgment. In the event the parties cannot agree on a sale, the court will appoint a receiver to sell the diamonds and furs, and assess who should be responsible for the receiver's fee.
Plaintiff's request that the engagement ring be sold is denied. The ring was a pre-marital asset and belongs to defendant ( see Lipton v. Lipton, 134 Misc 2d 1076; cf. Beck v. Cohen, 237 App Div 729).
Contents of Marital Properties
Plaintiff, in his proposed statement of disposition, lists the property in the marital residence as $23,460.00 as the "Ragazzi" report. Defendant also lists the value of the contents as $23,460.00. As such, the court fixes the value at $23,460.00 in her statement. No appraisal was admitted into evidence, nor was any testimony of "Ragazzi" provided but both parties agree to this value. The court notes that the wife's initial claims of missing items and the inventory of those items at trial were for the most part specious and the wife conceded at trial that once she was voluntarily restored to possession, many of the items she claimed were missing were located.
The husband shall have full right and title to the furnishings in the apartment located at #
13 and #
22. The husband, in his proposed statement of equitable distribution, itemizes the value of this personal property in apartment #
13 at $15,000.00; the wife offered no testimony to dispute this claim. The wife shall have full right and title to the furnishings and the contents in apartment #
24.
2000 Automobile
It appears from both parties' proposed statement of disposition that the parties agree that the value of this vehicle is $5,000.00. The husband has pendente lite maintained the costs of the insurance. The wife has had exclusive use of this vehicle and utilizes it for transportation of herself and the child. She shall have exclusive right and title to the vehicle, and each party shall have a 50-50 interest in the value of this vehicle.
Defendant Wife's Claim of $1,300,000.00 to $1,400,000.00 of Monies Unaccounted For
Throughout the course of the litigation the wife claimed that the husband did not accounted for substantial sums of money. At first utilizing the services of her own expert, Randisi, a report was produced where the wife claimed there was $3,400,000.00 in unaccounted for assets. The husband denied this assertion throughout the litigation. He claimed that he had voluntarily provided any and all documentation and discovery, much of it at the initiation of the litigation. He asserted that it was the wife and in-laws who thwarted the discovery process and it was the wife who dissipated assets. He likewise denied the wife's claims that he was involved in "Medicaid fraud" (except for the wife's repeated claim, same has never been substantiated or corroborated). Additionally, at the time of trial the amount of the wife's claim was reduced to $1,700,000.00, one half of the original claim. At the trial, after certain documents were shown to the witness, the wife's claim was further reduced to a total $1,300,000.00 to $1,400,000.00 of unaccounted monies for the period of 1997 through 2003 (seven years).
The expert based his opinion on the number of assumptions he made after a one to two hour conversation with the wife. His employee also spoke with the wife, but he did not bring to court the notes with him to refer back to how they derived at certain calculations and assumptions. The expert utilized the parties' earnings as reported on the tax returns, deducted tax liabilities, IRAs, living expenses (utilizing the 2004 affidavit of net worth of the husband and liquid assets). Apparently, the updated affidavit of net worth submitted was not utilized.
The expert did testify that he did not have sufficient data to make determinations as to how the money was disbursed. He does admit in his testimony that his methodology is not "perfect". The expert admitted that all of his living expenses were based on the one December 2004 net worth statement. Moreover, the expert testified that his staff "attempted to" analyze the bank account activities, however, he did not have the notes with him to refer back to and answer how much was deposited and disbursed. The expert's main concernrelating to the $1,300,000.00 to $1,400,000.00 that he identified as missing was "[w]here did the money go. . . [d]id the money go to living expenses or to wire transfers that went to Israel or wire transfers for purchase". The expert testified "[t]here was a certain amount of disbursements that I recall that we couldn't find where they went, what they were for. And that's what this task is all about". The expert kept asking the husband's attorney to show him "where the money went".
The expert did not recall asking the wife specific questions about major expenses aside from those accounted for specifically in the net worth statement and checks.
During a court recess the expert had a chance to look through the documents prepared by plaintiff and was able to account for another $350,000.00 and needed the husband to "help account" for another $1,300,000.00 to $1,400,000.00. After extensive questioning by the husband's attorney, using bank account statements, the attorney and expert arrived at the number of $1,800,000.00 in accounted for money. The expert explained that while "mathematically" plaintiff's method accounted for the money, plaintiff used a "different methodology" and spoke a "different language" and "somehow, coincidentally. . . got this approximately the same number". Plaintiff used the actual deposits that went into the bank accounts and the actual yearly expenses that the family had over the period from 1998 through 2004.
The argument as to the methodology of accounting for money is that plaintiff attempts to account for the money being deposited and spent and the balance then remaining while defendant wants to identify the actual source of where the money went. The expert, on cross, testified that he reviewed the depositions and year end balances for 1999 through 2003. Assuming that the money was spent, the expert was able to account for up to $1,800,000.00 in expenditures. The expert contested plaintiff's explanation, testifying that while mathematically the numbers were similar, the expert and plaintiff were speaking different languages. The expert wanted to understand where the money was spent rather than the fact that it was spent.
The husband, on rebuttal, testified to several expenses that would not have been accounted for by the wife or the expert: (1) wire transfers to Israel for renovations of the apartment in the sums of $30,000.00, $50,000.00, $20,000.00 and $100,000.00; (2) charitable donations through the wife's "charity" account in the amount of $490,000.00 as well as other charity contributions; (3) expenditures of $20,000.00 to $30,000.00 in weddings; (4) a loan was made to the wife's parents in the amount of $50,000.00; (5) $2,500.00 for the wife's automobile; (6) two to three family trips to Israel each year, each trip costing between $20,000.00 and $25,000.00; and (7) renovations to the marital residence in Brooklyn cost over $200,000.00.
The expert concluded that the money for charity, any checks, and any wire transfers had been accounted for. He did not worry about illegible checks and checks that were written to cash, many by the wife, and only worried about the amounts of the checks. The main dispute is whether there is double counting of the same money by plaintiff and defendant's expert. The husband's chart of bank accounts and expenditures marked into evidence is fairly simple: he puts the income into various accounts and there was some movement back and forth among the accounts. The expert considers that double counting. There is disagreement as to the technique used and the expert ultimate repetitive testimony that the husband "show the money".
It should be noted that both parties should be responsible for accounting the funds since both expended monies jointly and made joint economic decisions during the course of the marriage. The expert does explain that his method is not perfect and in reality, neither is the husband's method and the wife had access to monies despite her assertions to the contrary. As the court noted on the record, the only way to really check whether there is double counting would be to count every deposit / withdrawal / transfer / wire, something that admittedly was not done. In fact, the expert testified that his staff "attempted to" analyze the bank account activities, however, he did not have the notes with him to refer back to and answer how much was deposited and disbursed. It cannot go unnoticed that the testimony during trial revealed it was the wife whose expended large sums of monies and her depletion of assets was quite noticeable.
The party seeking the distribution of an asset has the burden of establishing its value ( see e.g. Vainchenker v Vainchenker, 242 AD2d 620; Amisson v Amisson, 251 AD2d 274; Harris v Harris, 242 AD2d 560; Kaye v Kaye, 192 AD2d 365; Vogel v Vogel, 156 AD2d 671; see also Iwahara v Iwahara, 226 AD2d 346, 640 NYS2d 217 [Where a party fails to sustain her burden of proving the value of the license then the testimony as to its value provided by the other parties expert stands uncontroverted. Moreover, the valuation of a marital asset must be founded in economic reality; in the absence of any proof to sustain its valuation, the trial court's decision was mere speculation and such an unsupported conclusion, without an adequate articulation of reasons, cannot stand]).
It appears that the husband's expert conceded that his assumptions were based upon an incomplete analysis of the expenditures of the parties during the course of the marriage.
Question: "So your assumption of the parties' living expenses was based is it a fair statement is based upon solely that net worth statement in terms of what the parties expended and projecting it backwards through 1998? Answer: "Yes"
The husband's testimony that he put the income into various accounts and other expenditures over a seven year period was credible. Similar to this court's recognition that to ask the wife to account for $100,000.00 (which definitely existed) during the course of the marriage, the wife's expert did not by a preponderance of the evidence based upon the model and assumptions set forth a basis to charge the husband with missing monies. While each version of events was plausible, the methodology and assumptions made by Randisi are based upon an assumption that the 2004 affidavit of net worth can accurately reflect back on seven years of expenditures. This presentation causes this court to consider that defendant did not meet her burden of proof. This is especially significant in light of her failure to call her first accountant experts (Eisner Co.) as a witness or produce a report notwithstanding the fact she paid them $21,159.00 (at one point the claim was over $50,000.00), nor did she call the private investigator who was paid $25,000.00.
The court would also note that the neutral appraiser Liebman testified that he did not find missing monies except for a small adjustment for missing cash of $7,400.00.
It must be noted that there is absolutely no evidence that the husband secreted assets or engaged in self help. The wife though clearly was engaged in self help.
The husband was forthright in his economic disclosures, the wife has not. Nor is there any evidence the husband did anything other than expend monies over the years to meet financial expenses of the family, his business or investments. It was only in the last six to seven years of the marriage did the husband's income grow substantially and during the period the expert utilizes in his calculation model and his earnings were more modest compared to the earnings in the last few years of the marriage.
Loan to Defendant's Parents
There has been extensive testimony regarding a loan made by the parties to defendant's parents several years prior to the parties' 2004 move to Israel. The husband testified that the amount of the loan was $50,000.00; the wife testified the amount of the loan was $30,000.00. It is conceded that at some point $30,000.00 was repaid and deposited into an account at the Bank of Jerusalem. The wife claims the monies were given to her by the husband as "security" and part of the oral "agreement" that she had with her husband. The husband claims they are still owed an additional $20,000.00. The grandmother testified that the loan was for $50,000.00
The wife's testimony on cross examination established the $30,000.00 was wired by her at the end of November 2004 to New York from the account that was located at the Bank of Jerusalem and deposited into an account in defendant's mother's name at Washington Mutual. The wife asserts the monies were used for "legal fees, etc."
These monies were marital assets utilized unilaterally by the wife. Each party is entitled to a 50% interest in the $30,000.00. The receipt of $30,000.00 shall be credited to the wife.
The wife's testimony that the loan was $30,000.00 is belied by her mother's testimony that the loan was $50,000.00. It is conceded, though, that only $30,000.00 was repaid. The outstanding $20,000.00, at this juncture, is an uncollected third party debt, which if ever recovered should then inure to the benefit of the parties equally.
$100,000.00 in Atlantic Liberty Account and Subsequently Deposited Into a Safety Deposit Box as Cash, Which Husband Claims Wife Dissipated
There was extensive testimony over the disposition of $100,000.00 given by the husband to the wife allegedly sometime in 1998. Defendant acknowledged at first that there were two checks, $92,000.00 and $8,000.00 that she received. This $100,000.00 was under the wife's sole and exclusive control at the suggestion, apparently, of the parties' marriage counselor to provide the wife with security. This is the same $100,000.00 that the husband claimed was the original basis for the convening of a religious court after the wife's statements to the husband regarding the disposition thereof.
During the examination before trial the wife testified that the $100,000.00 was utilized for the payments of the elder daughter's wedding expenses and for the celebrations that ensued for seven days after the wedding. Subsequently, it was established that the daughter was married two years before the $100,000.00 was ever given to the wife. At trial the wife changed her testimony and said the $100,000.00 was given to her in 1993 before the youngest child was born. At trial defendant offered a third accounting of the monies and that was that the husband gave her $100,000.00 several times during the marriage.
The court finds these explanations to be disingenuous at best since it is she who claims there are unaccounted for assets. The court determines that, unlike the other assets which the wife "disbursed", she has never fully accounted for these assets. The court will not, though, order distribution of this asset. Clearly, these monies at some time were utilized during the course of the marriage and the wife was not willing to divulge when. To ask a party to go back into the marriage more than 10 years (if 1993), six years (if 1998) and to explain or account for every expenditure is not possible or practicable, especially if those expenditures were long before the commencement of the action. The wife's lack of forthrightness, though, is of concern to the court.Simply put, the wife spent this money over a period of years, and this court finds that to be acceptable. She just should have said that from the beginning.
It is clear that as the plaintiff's income increased so did both of these parties' spending and expenditures with a large family over so many years is possible.
Retirement Accounts :
1. Plaintiff's IRA, value $86,000.00 as of commencement.
2. Plaintiff's 401K, value $56,110.00 as of commencement.
3. Defendant's IRA, value $89,057.79 as of commencement.
The assets were accumulated during the course of the marriage and are fully marital property subject to equitable distribution. Each party shall be credited with their own IRA or 401(K) plan in their own names and shall maintain their own IRAs and KEOGHs; plaintiff's are valued at a total of $142,110.00 and defendant's are equal to $89,057.00. The husband has $53,053.00 greater than the wife in retirement benefits. Thus, the husband shall transfer from his IRA or KEOGH account to the wife, by Qualified Domestic Relations Order, the sum of $26,526.50. Said Qualified Domestic Relations Order shall be submitted contemporaneously with the judgment of divorce and any transfer shall occur no later than 60 days from the signing of the Qualified Domestic Relations Order.
The court has treated these assets separately because of their tax status and any distribution must be made pursuant to a Qualified Domestic Relations Order. There are no other retirement benefits for each party.
Date to Transfer Assets
All assets ordered to be transferred and or exchanged shall be completed no later that 60 days after notice of entry of the judgment of divorce. Any reference to transfer within 60 days of judgment means after notice of entry.
Maintenance
It is well settled that the amount and duration of maintenance is committed to the sound discretion of the trial court ( see e.g. Schultz v Schultz, 309 AD2d 849; Wilson v Wilson, 308 AD2d 583; Buchsbaum v Buchsbaum, 292 AD2d 553; Murray v Murray, 269 AD2d 433), and that every case must be determined on its own unique facts ( see e.g. Wortman v Wortman, 11 AD3d 604, 606, supra; Mazzone v Mazzone, 290 AD2d 495, supra). In awarding maintenance, "the court must consider the reasonable needs of the recipient spouse and the pre-separation standard of living in the context of the other factors enumerated in Domestic Relations Law § 236 (b) (6) (a)" ( Chalif v Chalif, 298 AD2d 348, supra, 348), which factors include "the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance'" ( Kret v Kret, 222 AD2d 412, 412 citing DRL 236 [B][6][a]). "[O]ne of the purposes of an award of maintenance is to encourage economic independence" ( Ventimiglia v Ventimiglia, 307 AD2d 993, 994 citing Chalif v. Chalif, 298 AD2d 348, supra; Unterreiner v Unterreiner, 288 AD2d 463).
These factors must be evaluated along with the fact that "the overriding purpose of a maintenance award is to give the spouse economic independence" ( see Bains v. Bains, 308 AD2d 557; see also O'Brien v. O'Brien, 66 NY2d 576, supra). In Bains, the Appellate Division held that Supreme Court "providently exercised its discretion in awarding the plaintiff maintenance in the sum of $3,000 per month for a period of five years." Moreover, the court in Bains noted that "[s]pousal support should be awarded for a duration that would provide the recipient with enough time to become self-supporting" ( id.; see also Schenfeld v Schenfeld, 289 AD2d 219; Granade-Bastuck v Bastuck, 249 AD2d 444). Similarly, in Comstock v. Comstock, ( 1 AD3d 307), the Second Department affirmed an award of maintenance even though the movant had a Masters Degree in Education and Social Work and there was a substantial distributive award of cash.
Any determination of maintenance in the instant matter must be made pursuant to Section 236 (d) (6) 1 through 11. In setting maintenance, the court is cognizant of the history of parties as delineated herein. Notwithstanding same, it is important to recognize that these parties are relatively of the same age, will both, as a result of the marital distribution, be entitled to substantial sums of money and the mother's request for full ownership of the marital residence granted. The court, though, bases a determination of maintenance herein in part because the continuation of the ability to earn income for the husband will be far greater than that for the wife. The court has painstakingly heard 21 days of testimony, often compelling and for the most part very revealing as to the wife's psychological states, together with a concomitant fear of a loss of economic security. While many of her claims are exaggerated, the court can discern from the testimony and the history hereof that she will not be able to earn sums of money comparable to plaintiff in the future. It will take a considerable amount of time for the wife to re-enter the workforce. Her testimony on November 30, 2006, regarding what she tells women in matrimonial actions or who are alleged victims of domestic violence is of great concern.
The court has heard extensive testimony from the wife only as to her claimed undocumented extensive medical history and the court has noted before that not one medical record, not one medical professional has ever been put forth before court to testify, verify any of the ailments or injuries which she claims that she has suffered from which remain uncorroborated ( see Taub v. Taub, 33AD3d 612, 822, NYS2d 154 [2006]). While claiming to have suffered years of abuse and serious injuries such as broken wrist, herniated disc, severe injuries to her body and bruises, she has failed to provide one independent instance of verification for the medical conditions or affects. Her hearsay corroboration is not competent evidence. She has on two separate occasions listed on her affidavits of net worth that her health was good. What she has provided, though, to this court is clearly a picture of an individual who cannot earn substantial sums of monies as a social worker, at present.
Dr. Charles Kincaid, an expert in vocational evaluation and vocational rehabilitation, was called as a witness for the defendant. Upon direct examination, he testified as to his expert opinion concerning defendant's potential for employment. He met once with the defendant in person, and spoke to her one or two times subsequently by telephone. Relying on what she told him, as well as medical records and past employment records, Dr. Kincaid calculated what he believed to be her earning potential. First, he testified that if the defendant was to find work, it would have to be a job where she could be sedentary most of the time, due to her various medical conditions. Furthermore, the last time she held real full time employment was in 1991 when she worked as a developmental director for Lifeline. Therefore, Dr. Kincaid opined that her opportunities were limited because most of her skills are obsolete. For example, in order to work, she would need to learn computer skills as well as complete some sort of 40-hour training program. Dr. Kincaid further testified that the defendant is best suited for an entry-level position in gerontology, due to her background in that field. To determine possible salaries, he used resources from the Department of Labor, Office of Economics, and Economic Research Institute, and he ran the defendant's information through several software programs. He concluded that she would need six months to one year to search for a job, and that she could earn between $33,701.00 and $34,810.00 working as a social worker or a recreational therapist. If she were unable to work full time, the defendant could earn approximately $17.00 per hour working part time.On cross-examination, plaintiff's attorney questioned Dr. Kincaid's knowledge concerning the defendant's medical conditions. It was unclear whether the witness was relying on actual medical records or on hearsay conversations with her doctor, who was listed as a witness by defendant but was never called.
The wife is entitled to a substantial period of maintenance based upon a host of factors including the disparity in income of the parties, the fact that she was never gainfully employed in earning sums of money and, in the latter years of the marriage, that the parties entered into a lifestyle clearly utilizing the husband's substantial income as the basis and method of support. That prior lifestyle clearly showed to this court that there was never any need to or to concern about her not working for income. The fact that she had malpractice insurance is of no consequence. She has not earned monies in many years by mutual agreement, even before the husband embarked on the Article 28 practices.
The court cannot credit her testimony as to her many physical ailments which she has described in detail as a basis for providing her with lifetime maintenance. The court, though, after listening to her testimony for over 21 days, the inconsistencies and quite frankly, the distortions that she has put forth together with her lack of earned income employment history, make it clear to this court that she should have maintenance for a substantial period of time because in part it will take some time for her to become employed in the foreseeable future. There is a disparity in income and earnings potential and it is clear that the lifestyle she has been accustomed to based upon the premarital standard of living would warrant such an award. There is no doubt to this court that she has in many ways by being a mother, grandmother and having maintained the home for many years, lost lifetime earning capability during of her marriage. While her education was delayed, she has obtained substantial degrees, including but not limited to: Degree of Bachelor of Science in Education in 1979; Masters of Arts Degree in 1985; Post Masters Certificate in Aging in 1992; and New York State Certified Social Worker in 1999.
In making this decision the court is also aware of the fact that there will be tax consequences to the wife in that any income payments for tax purposes will be taxable to her and deductible to the husband. Any maintenance shall cease upon the death of plaintiff or defendant or remarriage of defendant.
Plaintiff's income from the enhanced earnings derived from his dental license and his income from his equity in his practices must be analyzed separately for purposes of distribution and maintenance calculations. The Court of Appeals in McSparron v. McSparron ( 87 NY2d 275, supra), explicitly rejected the theory that the license eventually "merges" with and has no separate value apart from a professional practice ( id. at 282-285). "Even after the licensee has had the time and opportunity to exploit the license and to realize a portion of the enhanced earning potential it affords, the license itself retains some residual economic value, although in particular cases it may be nominal." (id. at 285-286; see also Grunfeld v. Grunfeld, 94 NY2d. 696 at 704, supra). In addition, "care must be taken to ensure that the monetary value assigned to the license does not overlap with the value assigned to other marital assets that are derived from the license such as the licensed spouse's professional practice" (id. at 704, quoting McSparron v. McSparron, 87 NY2d 275 at 286, supra).
Here, the husband's annual income must be divided into three distinct parts, which in sum must equal 100% of his income. First is his baseline income, or what he would likely have earned with his education at the time of marriage, which, according to the neutral expert, is $80,000.00/year. Second is his enhanced earning capacity, or the value of his degree and license (gross enhanced earnings = top-line baseline, e.g., $70,000.00 = $150,000.00 to $80,000.00). Third is his income from equity in his practice and related businesses (equity income = total income reasonable compensation, e.g., $350,000.00 = approximately $500,000.00 — $150,000.00). The reasonable compensation for his managerial duties equals his top-line earnings as a dentist, which simplifies the analysis. This income from equity, approximately $350,000.00, is used to value the business from which it is derived (because the $500,000.00 income is from 2004, according to Liebman, it does not accurately represent the husband's future earning due to Q.C. diminishing revenue; therefore an equity income less than $350,000 is more appropriate in valuing Q.C., as discussed below).
To avoid a double count, the income used in determining the present value of the practice must be deducted from the calculation of future enhanced earning capacity (see Grunfeld v. Grunfeld, 94 NY2d at 705, supra, citing Wadsworth v. Wadsworth, 219 AD2d 410). Given that, under McSparron v. McSprarron ( 87 NY2d at 286, supra), the husband's enhanced earning capacity must be analyzed separately from his practice, it is essential to account for all of his earning without any overlap in assigning income to his license and to his practice.; ( see also Grunfeld v. Grunfeld, 94 NY2d at 704, supra, ("the monetary value assigned to the license [should not] overlap with the value assigned to other marital such as the licensed spouse's professional practice."])
In addition, Liebman opined the value of the husband's enhanced earning capacity is the same whether based on a statistical average or based on his actual earnings; reasonable compensation for a dentist is comparable to the salary from his managerial duties. "License" cases measure the difference in earning potential of the party holding the license over the earnings of a person without the license ( see O'Brien v. O'Brien, 66 NY2d 576, supra). Traditionally licenses have been valued by one of two formulas. Where the license is relatively new, the expert performs a statistical projection of the difference between earnings of a person with the license and the earnings of a person without it for the working life of the license holder, and reduces the figure to present value, taking into account life expectancy. id. In other instances the same computation is done using the actual earnings of the license holder rather than the statistical projection ( see McSparron v. McSparron, 87 NY2d 275, supra). The Court of Appeals recognizes the use of actual earnings "where the licensee has already embarked on his or her career." (id at 286). The court should use "a more pragmatic and individualized analysis based on the particular licensee's remaining professional earning potential." (id.). In the instant case, the average value of a dental license for someone with a comparable demographic profile reasonably represents the husband's actual enhanced earning capacity according to Liebman. Furthermore, Liebman opines that because both the value of the business and the value of his enhanced earning capacity from his license will be distributed in the same manner, precisely where the distinction lies is irrelevant here.
Under Grunfeld, if the value of both his enhanced earning capacity and his practice is distributed, the income derived from those assets cannot be used in calculating a maintenance award in order to avoid double dipping. In sum, all of the husband's future income has been trifurcated into (1) baseline earnings, (2) enhanced earning capacity, and (3) equity income from Q.C. and D.S.. The husband's expected future income from his equity in Q.C. and D.S. is fully accounted for in Mr Liebman's valuation: $731,000 and $90,000 respectively. The future benefit he will likely receive from his dental degree and license has been fully accounted for in Mr Liebman's analysis of the present value of his enhanced earning capacity, $296,000. Additionally, the 50% distribution of Q.C. and D.S., as valued by Mr Liebman, includes theoretical revenue from an eventual sale of Q.C. and D.S. because the Market Value of a business necessarily includes the capitalized income during a potential ownership period as well as the discounted residual value at the end of that period. Therefore, if 50% of the marital assets, including the businesses, property and enhanced earning capacity, are distributed, then half of all plaintiff's expected income above $80,000, his baseline gross earnings, will have already been awarded to the wife.
Because the future income derived from his license and from Q.C. and D.S. has been used in their respective valuations, that income cannot be used in determining the award of maintenance. The Grunfeld v. Grunfeld, ( 94 NY2d 696, supra) court held that once a court converts a specific stream of income into an asset, that income may no longer be calculated into the maintenance formula and payout. Furthermore, McSparron also cautioned lower courts to "be meticulous in guarding against duplication in the form of maintenance awards that are premised on earnings derived from professional licenses," ( see Grunfeld v. Grunfeld, 94 NY2d at 704, supra, quoting McSparron v. McSparron, 87 NY2d at 286, supra). If projected earnings used to value a license also form the basis of an award of maintenance, the licensed spouse is being twice charged with distribution of the same marital asset value, or with sharing the same income with the non-licensed spouse; "to allow such duplication would, in effect, result in inequitable, rather than equitable, distribution." )Grunfeld v. Grunfeld, 94 NY2d at 704, supra). Therefore, since all of the husband's future gross income above $80,000 will have been distributed as marital property, maintenance can only be based on that $80,000.
On the other hand, the Grunfeld court recognizes that double counting can be avoided by reducing the distributive award based on that same income, thereby allowing license income to be considered in setting maintenance ( id. at 705, 706). One advantage of this method is that the maintenance award may be adjusted in the future if the licensed spouse's actual earnings turn out to be less than expected at the time of the divorce ( id.; see also O'Brien v. O'Brien, 66 NY2d 576 at 591, supra). Nonetheless, there may be cases where it is more equitable to avoid double counting by reducing the maintenance award. Where the license is likely to retain its value in the future but the non-licensed spouse may only be entitled to receive maintenance for a short period of time, it may be fairer to distribute the value of the license as marital property rather than to take the license income into consideration in determining the licensed spouse's capacity to pay maintenance ( id.)
It should also be noted that the recent Court of Appeals decision in Keane v. Keane, ( 8 NY3d 115), does not apply to the income derived from the businesses. It is distinguishable on its facts. Although the Keane court held that rental income from property deemed a marital asset could be used in determining maintenance even after that same income was capitalized and distributed, it limited this double-dipping to passive assets, e.g., real estate. In Keane, thecourt specifically excluded active assets, such as a professional practice, because the asset's value is "totally indistinguishable from and has no existence separate from the [income stream] from which it is derived. Keane v. Keane, 8 NY3d at 122, supra, citing Grunfeld v. Grunfeld, 94 NY2d at 704, 709, supra). Because a "service business" is an active asset, it is still governed by the Grunfeld prohibition regarding double-dipping for maintenance and distributive awards ( id., see also testimony Jan 2, 2007 p. 52-53, [defendant's expert Randisi agrees that Keane does not apply to the instant case]). As service businesses, Q.C. and D.S. are active assets and clearly distinguishable from a passive rental property as in Keane. Therefore, Keane does not apply to the present case and the husband's future income derived from his equity in Q.C. and D.S. cannot be double counted in awarding equitable distribution as well as maintenance.
Keane was decided during the trial and a copy was provided to Mr. Randisi.
It should be noted though that Keane applies to the Queens property owned subject to equitable distribution and occupied by Q.C.. Under Keane, even if 50% of the market value (which necessarily includes potential future rental income) of the Queens property is distributed to defendant, the future rental income plaintiff receives can be double counted for calculating maintenance ( Keane v. Keane, 8 NY3d 115, supra) (Consideration of husband's monthly rental income from body shop repair business in computation of award of maintenance to wife did not constitute impermissible double counting, even though capitalization of income method was used to appraise full market value of rental property in calculating wife's distributive award of marital property, since the rental property could be readily distinguished from its income-producing capacity). Plaintiff's 2004 tax return in evidence states that his total rental income was $79,253.00 (the rental income reported in his 2005 tax return, was not utilized as it was not in evidence, is $82,675.00), which can be used to calculate maintenance. Thus, this rental income from Queens is part of the analysis in calculating the amount of monies available for a maintenance award.
Therefore, the court utilizing the sum of $159,523.00 as the income of plaintiff for maintenance determination grants defendant taxable maintenance for 10 years, until her 62nd birthday, in the amount of $2,500.00 per month. If she so desires, at the age of 62 she will also be eligible for Social Security. Defendant is receiving the marital residence totally debt free.
In sum, plaintiff's income on which maintenance should be based, is $159,253.00 gross, consisting of his baseline earnings of $80,000.00 and his rental income of $79,253.00.
Child Support
Section 240 of the Domestic Relations Law of New York provides guidelines by the Child Support Standards Act ("CSSA") which must be considered in ascertaining child support.
[T]he CSSA provides a precisely articulated, three-step method for determining child support.' [ citing Matter of Cassano, 85 NY2d 649, 652 (1995)] The first step requires the computation of combined parental income' (Domestic Relations Law § 240 [1-b] [b] [4]; [c] [1]). The amount of income' attributed to each parent is derived by adding gross income, as reported on the most recent Federal tax return, and, to the extent not included as gross income, investment income, imputed income and other income received' by the parent from eight enumerated sources' ( Matter of Graby v. Graby, 87 NY2d 605, 609-610, citing Family Ct Act § 413 [b] [5]).
After computing statutory income, a limited number of deductions are allowable under Domestic Relations Law § 240 (1-b). The CSSA provides for eight categories of deductions from income, which includes maintenance payments and Federal Insurance Contributions Act (FICA) taxes paid (see Domestic Relations Law § 240[1-b] [b] [5] [vii] [A] — [H]. Significantly, receipt of a distributive award payments is not a statutory category of income, nor is the payment of a distributive award a recognized deduction.
The court next multiplies the combined parental income figure, up to a ceiling of $80,000, by a designated percentage based on the number of children to be supported, and then allocates that amount between the parents, applying each parent's respective portion of the total income to reach the amount of each parents support obligation (Domestic Relations Law § 240 [1-b] [b] [3]; [c] [2]. In the final step, where combined parental income exceeds $80,000, the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of [Domestic Relations Law § (1-b)] and/or the child support percentage' (Domestic Relations Law § 240 [1-b] [c] [3]).
( Holterman v. Holterman, 3 NY3d 1, supra).
The court, however, is aware that, "[i]n determining a party's child support obligation, a court need not rely upon the party's own account of his or her finances, but may impute income based upon the parties' past income or demonstrated earning potential ( see Westenberger v. Westenberger 23 AD3d 571; citing Rocanello v. Rocanello, 254 AD2d 269, 678 NYS2d 385).
Specifically, the CSSA requires the court to establish the parties' basic child support obligation as a function of the income that is, or should have been, reflected on the party's most recently filed income tax ( see Wallach v. Wallach, 37 AD3d 707 citing DRL 240 [1-b] [b] [5] [i]; Miller v. Miller, 18 AD3d 629, 631; Bains v. Bains, 308 AD2d 557, supra; McNally v. McNally, 251 AD2d 302, 303); see also Holterman, 3 NY3d at 10, supra, quoting Matter of Graby v. Graby, 87 NY2d 605, 609-610. ["The amount of income' attributed to each parent is derived by adding gross income, as reported on the most recent Federal tax return, and, to the extent not included as gross income, investment income, imputed income and other income received' by the parent from eight enumerated sources"]). It is also improper to base the child support calculation on an average of the defendant's past earnings ( see Wallach v. Wallach, 37 AD3d 707, supra).
In the present case, the income reported on plaintiff's tax returns should be used to calculate child support, which is the last tax return put into evidence.. Specifically, plaintiff's 2004 tax return, which is in evidence, states a gross income of $320,017 and his 2005 tax return, which is not in evidence, states a gross income of $299,137. (This tax return was included in the post judgment memorandum of law.) Also, defendant's accountant, Mr. Randisi, used the cash flow of plaintiff's business not his taxable income regarding child support and maintenance. The court will impute as additional $7,400.00 in income pursuant to the Liebman analysis of unaccounted cash.
After computing statutory income, a limited number of deductions are allowable under Domestic Relations Law 240(1-b). The CSSA provides for eight categories of deductions from income, which include maintenance payments and Federal Insurance Contributions Act taxes paid ( see Holterman v. Holterman, 3 NY3d at 11, supra, citing DRL 240[1-b][b][5][vii] [A]-[H]. Significantly, the receipt of distributive award payments is not a statutory category of income, nor is the payment of a distributive award a recognized deduction ( id.).
The court next multiplies the combined parental income figure, up to a ceiling of $80,000.00, by a designated percentage based on the number of children to be supported, and then allocates that amount between the parents, applying each parent's respective portion of the total income to reach the amount of each parent's support obligation ( see Holterman v. Holterman, 3 NY3d at 11, supra, citing DRL 240[1-b][b][3]; [c] [2]). In the final step, where combined parental income exceeds $80,000.00, "the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of [Domestic Relations Law § 240(1-b)] and/or the child support percentage." ( id). Finally, the court is required to articulate its reasons for awarding child support in addition to basic child support ( see Wallach v. Wallach, 37 AD3d 707, supra, citing Matter of Cassano v. Cassano, 85 NY2d 649, 654-655, supra; Clerkin v. Clerkin, 304 AD2d 784; Wagner v. Dunetz, 295 AD2d 501).
Like in Matter of Cassano v Cassano ( 85 NY2d 649, supra), where combined parental income exceeds $80,000.00 — the situation at issue in this case — the statute provides that "the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of this subdivision and/or the child support percentage" (Family Ct Act 413 [c] [3]) ( id. at 653). The "paragraph (f)" factors include the financial resources of the parents and child, the health of the child and any special needs, the standard of living the child would have had if the marriage had not ended, tax consequences, non-monetary contributions of the parents toward the child, the educational needs of the parents, the disparity in the parents' incomes, the needs of other nonparty children receiving support from one of the parents, extraordinary expenses incurred in exercising visitation and any other factors the court determines are relevant ( id.)
The court in Holterman saw no reason to treat a distributive award paid in periodic installments differently than an award satisfied by the transfer of a noncash asset or lump-sum payment (Holterman v. Holterman, 3 NY3d at 11, supra). However a distributive award is paid-whether in installments derived from the license holder's income stream, by lump-sum payment or by other asset transfer-the CSSA does not permit the award to be viewed as income for the purpose of allocating combined parental income ( id.; see also Wallach, 37 AD3d 707, supra, ["In determining the defendant's income for child support purposes, the Supreme Court correctly deducted from the defendant's income the maintenance he is required to pay, but incorrectly included the maintenance payments in the plaintiff's income and should have provided for a corresponding adjustment in child support upon the expiration of the durational maintenance award"]).
The court in Holterman v. Holterman, ( 3 NY3d at 11, supra) also noted that neither McSparron nor Grunfeld discussed double counting vis-À-vis child support. Rather, in each case the court held that a court may not award maintenance and the distribution of enhanced earnings attributable to a professional license from the same income stream (id.). Unlike maintenance, child support is governed by a precise formula in the CSSA, which simply does not authorize a court to deduct a distributive award from the titled spouse's income ( id.).
However, this court shall consider the child support obligation of combined parental income over $80,000.00 ( see Cassano v. Cassano, 85 NY2d 649, 628 NYS2d 10, supra) based upon the past lifestyle of the parties and the child and the standard of living established during the marriage, and the standard of living this child would have enjoyed had the marriage not ended. Given that standard and the disparity in income between the parties, support based upon a $250,000.00 cap in income is appropriate. The pre-dissolution lifestyle includes dance classes, summer camp, travel, and other school and non-school related extra curriculum activities, which can be included in the child's life post-divorce by capping the CSSA gross at $250,000.00, not $80,000.00. The court recognizes that the husband too needs to have income to meet expenses and his income over the years prior to commencement was in large part derived from the Article 28 clinics. It is undisputed that these clinics have been substantially reduced by a governmental policy change.
The court can only make decisions based upon the competent evidence beforeit. The submission of a 2005 tax return with a post trial memorandum of law does not suffice to serve as a document in evidence that defendant had an opportunity to review. The court recognizes, though, that this trial spanned over a great deal of time due to illness of defendant, illness of her mother, illness of plaintiff's counsel and was initially delayed due to a change of counsel. Although the trial ended during the first week of January 2007, the 2006 tax returns could not have been prepared. The 2005, though, should be the year that the court utilizes in determining child support. The court, at this juncture, has utilized 2004, the only tax return in evidence. Inasmuch as the 2005 tax return has gross income which, in effect, equals the amount of the cap the court is utilizing, utilizing either 2004 or 2005 is therefore irrelevant. In calculating pro rata income, the wife's income is $0 in 2004 and 2005.
The court did consider sua sponte opening up the trial for purposes of a more up to date calculation but the court. sitting in equity, recognizes that these parties and the youngest daughter need a decision; that the longer this goes on the worst it is for all involved. The decision was delayed enough by the additional requests for an in camera and the voluminous complex issues that the court had to decide. The parties (and now, unfortunately, the child) need economic closure; that closure should not be delayed because the parties' 2005 tax return was not ready in a timely manner.
In determining child support the mother's income is set as $0 and the father's, prior to any Cassanno analysis, would be set at the $80,000.00 cap when deducting NYC taxes of $12,355.00 and maintenance of $30,0000.00 (the court has not deducted FICA or Medicare because the tax return does not report any deduction for self-employment tax). The CSSA gross on the combined pro rata income is $37,645.00 per year. At 17 % for one child the amount would be $6,399.65 per year or $123.00 per week; for two children 25% the amount would be $9,411.25 per year or $180.98 per week.
The court, though, will not utilize the 2004 total gross of $320,017.00 plus the additional imputed income for unaccounted for cash in the amount of $7,400.00 pursuant to Mr. Liebman's report but a cap of $250,000.00 ( see DeVries v. DeVries 35 AD3d 794 [ trial court properly exercised its discretion in calculating child support against $300,000.00 of husband's income]). Thus, defendant's pro rata share is $0 and plaintiff's income is capped at $250,000.00. When you subtract the NYC taxes of $12,335.00 and the maintenance of $30,000.00 per year, the father's CSSA gross for child support calculation is $207,655. At 17% child support would be $35,303.50 per year or $678.91 per week; if it were for two children, it would be $51,916.25 ($998.38) per week, or a differentiation of $319.00 per week.
The court notes in determining this amount of child support that it would be inappropriate to provide weekly child support on a percentage basis pursuant to the Child Support Standards Act for the 20 year old son (who turns 21 during the first week of January 2008). This determination is made based upon the fact that there was no credible evidence that the child resides this the mother except for occasional weekends and summer visits . During the course of most of the pre-trial litigation it was clear to the court that the child was residing in the State of Israel, studying (which is something that is common place and accepted in the orthodox Jewish community for a child of this age) and being fully supported by the father. Additionally, it appears that the father is paying for and continues to pay for the son's $36,000.00 annual expenses at A university which includes housing, room and board. On those occasions when the child does spend time with the mother, it is for purposes similar to that of visitation and that there is no custodial relationship between the child and the mother. The mother has complained that she has very little input into this child's life. As such, it would be inappropriate at this juncture to provide for full child support to the mother for this child who is being fully supported by the father except that the father shall pay to the mother the sum of $319.00(the difference between 17% and 25%) per week (retroactive to date of first application) for any week (three and one half days or more) consecutive that the child stays overnight (three nights) with the mother until date of the youngest son's 21st birthday in January 2008.
The court, at this juncture, will deny plaintiff's application that he should only have to pay minimal child support and tuition because of the child's actions. The parties and the court must recognize that she is a child who, at the age of 13, may have made inappropriate decisions after witnessing both of her parents. The role of a parent is to teach, nurture and, hopefully, guide a child while providing love, safety and guidance; even when children make mistakes. These parents must now put all of their efforts into these tasks encouragingly actively a re-unification and helping this troubled child; to punish herby not providing child support is the wrong alternative and sends the wrong message, and would wrongfully empower her even further.
Retroactivity
The court determines that maintenance and child support shall be retroactive to March 1, 2005, the date of first application ( see Dooley v. Dooley, 128 AD2d 669, 513 NYS2d 167) with a credit for any payments made by the father pursuant to the court's pendente lite order or voluntary payment as and for maintenance and child support. In order to avoid double shelter payments, credits shall also include verifiable court-ordered or voluntary payments for car and property insurance, utilities, water, sewer, real estate taxes, alarm, gardener and pest control on the marital residence ( cf. Fruchter v. Fruchter, 29 AD3d 942). Any payments due for retroactive payments shall be made within 90 days of entry of the judgment.
The pendente lite order is deemed vacated effective with the signing of the judgment.
Private School, College and Camp Expenses
The court recognizes herein that the father has at first voluntarily and agreed to continue to pay for the child's tuition at Yeshiva in the amount of $7,100.00 per annum pendente lite. It is clear that these parties have established a lifestyle which is indicative of children attending private parochial secondary school education and plaintiff agrees to and consents to the continued payment (even with his claims of influence) for the child's full attendance at Yeshiva. This child is academically doing very well in school. As such, the father shall continue to pay the basic Yeshiva tuition and registration fees for the youngest child until her graduation. The father shall receive notice of all events relating to the child's schooling directly from the school and the mother shall provide the necessary documentation to the school so that said payment information and all information regarding the child's school attendance is also sent to the father.
It is also clear that the father has not only paid for the youngest son's college education, but was fostered his attendance at college and voluntarily paid for all of this child's expenses including room, board, tuition, books, clothing and travel costs, with a total amount of $36,000.00 representing costs and increases relating to the tuition and expenses ( see Manno v. Manno, 196 AD2d 488). The father shall directly provide the child with the necessary spending money. The court recognizes that this child turns the age of 21 and will be emancipatedduring the first week of January 2008. In New York State any payments for college tuition beyond the age of 21 are purely voluntarily ( see Gibbons v. Gibbons, 31 AD3d 605 [in absence of voluntary agreement, ex-husband could not be directed to pay child support or to contribute to college education of child who had attained the age of 21 years]).
The court rejects the contention of the father that the mother should be charged with the full cost of this child's college education. He claims that because of her failure and refusal to provide and fill out the necessary FAFSA form related to income, there may have been a concomitant loss of a possible scholarship at another school. The claim is, at best, speculative and there is no proof that the child's educational costs would have been less elsewhere or with these parties' assets, a scholarship would be granted.Now that the litigation is over and there have been findings entered, the court, in the future, expects that the mother will comply with requests to file appropriate forms and will consider any failure to so sign, unless good cause is shown, in any applications related to the youngest daughter.
The father's responsibility to pay for the costs of college education for the youngest daughter will be held in abeyance for future application. The child is just turning 14 and given the present circumstances, that application is premature (see Halpern v. Kuruvilla, 280 AD2d 670; cf. Tan v. Tan, 260 AD2d 543). The decision of a 13 or 14 year old to estrange herself from a parent may be looked upon very differently if it continues when she is 18 or 19.
Summer Camp
The mother requests that the father pay the costs of $3,800.00 for summer. The court is aware that summer camp is an integral part of a child's experience in the community the parties reside in. Notwithstanding same, and despite the fact that the failure of the father to voluntarily pay for same in 2006, this summer has been a source of great conflict between this child and father. The court will not order camp to be paid directly by the father. The Second Department has previously held that "the former wife's contention that summer camp expenses should have been separately stated and added to the amount of basic child supporthas no basis in the statute and is without merit." ( Slankard v. Chahinian, 204 AD2d 529). Were the summer camp a form of child care, then such payment would be appropriate. It is undisputed that the mother is not employed at the present time. The award of child support with a cap of $250,000.00 as the CSSA gross is sufficient for defendant pay these costs.
Health Insurance
The husband shall continue to maintain the two unemancipated children as covered dependents on his own health insurance until their emancipation. He shall continue to pay for any reasonable co-payments or deductibles. He shall provide the wife any COBRA forms within 20 days. The court cannot award a party to pay the other party's unreimbursed medical expenses ( see Bains v. Bains, 308 AD2d 557, supra "[j]udgments of divorce which direct a parent to pay the other parent's unreimbursed health care expenses are in the nature of open-ended obligations which this Court has consistently disfavored . . . Ordinary or routine unreimbursed medical expenses should be considered as included in a maintenance award, and extraordinary unreimbursed medical expenses cannot be awarded prospectively in unfixed amounts' ( Gulotta v. Gulotta, 215 AD2d 724, 725; Zabin v. Zabin, 176 AD2d 262, 264").
DRL 240 [1 b 3 [c] (5) does, though provide:
The court shall prorate each parent's share of future reasonable healthcare expenses of the child not covered by insurance in the same proportion as each parent's income is to the combined parental income. The non-custodial parent's pro rata share of such healthcare expenses shall be paid in a matter determined by the court, including direct payment to the healthcare provider.
As such, plaintiff, who is the 100% wage earner, shall pay any reasonable future healthcare expenses for the children until their emancipation. Plaintiff shall reimburse defendant for any unreimbursed reasonable deductibles or co-pays incurred on behalf of the child.
Life Insurance
The husband shall name the wife as beneficiary on a life insurance policy in the amount of $300,000.00 to secure his obligation to pay maintenance (see Hartog v. Hartog, 85 NY2d 36 and DRL 236 [B] [8] [a]). The principal amount of the death benefit may be reduced by $30,000.00 per year for each year the policy must remain in effect until the 10 year period of maintenance as defined in this decision shall have expired. The husband, upon written request of the wife by certified mail, shall provide proof of the existence of said policy yearly by January 15 of each year.
The wife has testified that she has been paying a life insurance policy on the life of the husband. If the husband so opts, he may pay this policy to meet this obligation provided the value is equal to or exceeds the requirement of this provision.
The husband shall also maintain a life insurance policy naming the youngest daughter as the beneficiary in the amount of $500,000.00 until her emancipation.
Tutoring Expenses
DRL 240 [1-b] (c) (7) provides:
(7) Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award education expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment of the education provider.
Defendant has described the child as excelling in school and doing quite well. Notwithstanding same, she testified that the child is dyslexic and in need of extra tutoring. No admissible proof was provided by defendant or any witness called from the school as to the need for tutoring. As such, the application is denied with right to seek modification in the future if circumstances should warrant the need for a tutor upon presentation of proper, competent proof.
Counsel Fees and Costs
DRL 237 (a) permits the court to direct either spouse to pay counsel fees to the other "to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties." The award of counsel and accountant's fees is controlled by the equities and circumstances of each particular case ( see e.g. Levy v. Levy, 4 AD3d 398, citing DRL § 237[a], [d]; DeCabrera v. DeCabrera-Rosete, 70 NY2d 879, 881; Kearns v. Kearns, 270 AD2d 392, 393, appeal denied 95 NY2d 760). "The intent of the
provision is to ensure a just resolution of the issues by creating a more level playing field with respect to the parties' respective abilities to pay counsel, to make sure that marital litigation is shaped not by the power of the bankroll but by the power of the evidence'" ( Silverman v. Silverman, 304 AD2d 41, 48, quoting Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, DRL C237:1, at 6, citing O'Shea v O'Shea, 93 NY2d 187). The parties stipulated that the issue of counsel fees was to be decided by submissions of affirmations and affidavits and waived a formal hearing ( see Krutyansky v. Krutyansky, 289 AD2d 299;, supra; Silverman v. Silverman, 193 AD2d 595, 597 NYS2d 455).
Any award of counsel fees must take into account a host of factors. Primarily, though, the court must be cognizant of the fact that tremendous sums of money have been already expended by both sides in this matter, far more than that which should have been required. The wife from the beginning of this action has taken the position that the husband was hiding large sums of money and that she needed to expend whatever was necessary in an aggressive manner in order to ascertain the true earnings of the husband. The husband has appeared to be cooperative and met each and every one of the court's requests including but not limited to vacatur of the marital residence without the need for extensive motion practice to allow the wife and child to reoccupy same, voluntarily providing sums of money to the wife prior to a formal pendente lite decision of the court including paying for all of the costs and overhead of the marital residence, securing and obtaining a get for the wife at the request of the court and resolution of the issue of grounds as well as providing discovery and disclosure.
Furthermore, the court during the action and testimony herein, learned that the wife expended the sum of $21,159.00 in hiring an accountant, Eisner Co., Certified Public Accountants, Business Advisers, at the institution of this action, for the preparation of an affidavit of net worth. No report was ever introduced into evidence produced from said accountants notwithstanding the fact that the husband voluntarily supplied eightboxes of documents to said accountants. The court also learned from conflicting testimony that the wife's mother retained the utilization of a private investigator. That private investigator also never testified and never came forward with a report and the court must question the failure to call these two individuals as witnesses and the efficacy of retaining them in awarding costs for their services. The wife requests $25,000.00 reimbursement for the private investigator's services. The court does not have the authority to order reimbursement for the maternal grandmother's retention of a private investigator. At the same time, the husband claims to have expended a total of $250,000.00 in litigation. At the beginning of the action the wife insisted that she pay one half the cost of the law guardian for now which she seeks reimbursement.
The court has pendente lite directed that the husband pay $55,000.00 in counsel fees mindful that orders of counsel fees should not be deferred to the trial court ( see Frankel v. Frankel, 2 NY3d 60, supra [first award of $20,000.00 in June 2005 and second award of $35,000.00 on March 6, 2006]). The court recognizes that the wife's special needs and the demands that she places upon all who come in contact with her for unfettered access is a costly process. She demanded of and received from the court days upon days of testimony to tell her story and yet she complained.
The lawyers chose what they chose to put in documents. They did not write everything. As you know, I have trouble saying a lot and my lawyers don't' take everything I say and write it or expect it to be admitted. That is been determined.
Q: But isn't it apparent to anybody who sat through these court sessions on direct that you are going to say whatever you want to say regardless of what is being asked of you?
A: No. I did not get a chance to say half of what will be said some day.
A: If I were here to discuss every act of violence that this man has acted upon me and upon my children, every act of violence according to the definition of violence and battering, very frankly, the judge would be here from here until tomorrow, and the judge has requested we not do that.
We did not even get through all the things that I did put in and you objected to many of them saying it was too much. And Mark can testify that very often I begged him to be able to say more. And I've been told it is — If I am supposed to say more and if I'm allowed now to say more may I please have a lengthy — days and days of testimony of torture and abuse emotionally, physical that we have been subjected to and that my child and I have witnessed and been subjected to.
The court patiently listened to all of that testimony notwithstanding the fact that on 150 occasions the court had to strike defendant's answers (many on her own direct testimony) as non-responsive. Defendant's litigation tactics including litigation in Family Court, withdrawal of an action in Supreme Court. She has spent sums of money with a vengeance to litigate this matter, all the while involving and influencing the child who knows far too much about the litigation. Plaintiff has had to expend monies to obtain discovery from defendant's mother who clearly was in pari delicto with defendant. The trial was extended an extraordinary amount of time, by defendant's insistence on testifying "her way". A substantial reason for the incurrence by defendant of such exorbitant fees and expenses must rest at her doorstep, not plaintiff's, the court's, the "rich lawyers"' and not her own lawyers'.
The court take into account the disparity in future earnings of each of the parties and that a party is not required to exhaust their equitable distribution award for the purposes of payment of counsel fees. The court must consider the fact that the husband will be the major wage earner and will earn substantially higher sums of money than the wife in the future with a greater disparity in income in the future.
Even though defendant will receive a large sum of money from distribution of the marital assets, this does not preclude an award of counsel fees. In Maher v. Maher ( 196 AD2d 530), the Appellate Division increased the wife's award of counsel fees from $10,000.00 to $30,000.00. The court stated that "[g]iven the great disparity between the incomes of the parties, the award should have been greater. That the wife had received a substantial distribution from the marital property does not preclude a significant award of attorney's fees" ( see also Hackett v. Hackett, 147 AD2d 611), [counsel fees were warranted even though wife had received substantial distribution of marital assets as well as adequate maintenance]).
Due to defendant's lack of a recent paid employment history, as well as the fact that the plaintiff will continue to make a substantial income for several more years, it would not be an improper exercise of judicial discretion to award the defendant at least a portion of the enormous debt owed to her attorneys. "Matrimonial litigation in New York is expensive. It has been repeatedly recognized that in a fiercely contested case, the costs of the litigation can consume the marital estate of even an affluent couple." ( Charpie v. Charpie, 271 AD2d 169). Furthermore, it seems that women may suffer more from these costs than do men. "Unless she continues to receive a substantial income .a woman in the midst of matrimonial litigation, even a formerly well-to-do woman, may wind up without funds and in debt. Recognizing this reality of litigation, the possibility that even a woman who had enjoyed an affluent lifestyle can end up in dire financial straits cannot be ignored." ( id. at 171). Therefore, to be sure that a party is able to fully litigate her case, and also to prevent her from being destitute once the litigation is over, the court may certainly award her a fair portion of her counsel fees.
The court will not punish defendant for not settling the matter; she has her right to a day in court (see Comstock v. Comstock, 1 AD3d 307, supra [". . . an award of an attorney's fee is designed to redress the economic disparity between spouses. It is not intended to address a party's decision to proceed to trial rather than agree to a settlement ( see O'Shea v. O'Shea, 93 NY2d 187 (1999)"]). The court has wide discretion in awarding litigation expenses other than counsel fees. Pursuant to DRL 237, these would include such expenses "that the court may determine to be necessary to enable a spouse to carry on or defend an action or proceeding." In determining the appropriateness and necessity of awarding counsel fees, the court shall consider: (1) the nature of the marital property involved; (2) the difficulties involved, if any, in identifying and evaluating the marital property; (3) the services rendered and an estimate of the time involved, and (4) the applicant's financial status." DRL 237 These guidelines apply for the determination of the award, if any, of other litigation expenses ( see Ganin v. Ganin, 114 AD2d 883). Moreover, an appropriate award "should take into account the parties' ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances." ( see Grumet v. Grumet, 37 AD3d 534). Therefore, the court has wide discretion in determining counsel fees for which plaintiff would be responsible.
There are several circumstances that the court needs to consider when assessing the expenses and costs of this case. Defendant spent $553,525.32 on attorney fees and $107,628.60 on expert fees. The breakdown of defendant's expenses and debts is as follows:
With regard to counsel fees, Aaron Weitz, Esq., defendant's first attorney, billed and was paid a fee of $18,815.00. Anthony Danielle, Esq., defendant's second attorney, billed a total of $239,254.37 of which he was paid $151,488.83 and has an outstanding balance due of $87,765.54. Defendant's current attorney, William McCartin, Esq., of the firm of Sankel, Skurman McCartin, has billed for services rendered in conjunction with the wife's organization the sum of $20,495.01 of which he received $6,500.00 and there is a balance due of $13,995.01.
As to expert fees, defendant's expert Randisi billed a total of $51,496.25 of which he was paid $34,190.50 and there is a balance due of $17,305.75. Defendant's real estate expert Levine, was paid a total sum of $7,200.00. Vincent Parco, the private investigator hired by defendant's mother, was paid a total sum of $25,000.00.
Plaintiff in his post trial memorandum indicates he spent about $250,000.00 on both the attorney fees and other litigation-related expenses.
Defendant requests that the court mandate plaintiff to pay her counsel fees ($552,525.32), her expert expenses ($107,618.60) as well as reallocation of the costs of court-appointed experts and the law guardian and make plaintiff 100% responsible for these costs. Plaintiff is asking the court to force defendant to pay in full for her expert witnesses, Randisi and Levine, as well as pay in full for the private investigator that defendant's mother hired. Plaintiff claims that defendant's excessive use of the attorneys and delay in litigation "shocks" the conscience and should be taken into account when awarding counsel fees and expert expenses.
In his affidavit, Aaron Weitz (defendant's first attorney) stated that "the matter proved to be complex and time consuming during the period of time that I was involved in it. I was caused to spend a large number of hours meeting with the defendant, discussing the case with her on the phone, discussing the matter with opposing counsel, reviewing numerous documents and attending court appearances." It is clear that each time defendant switched her attorney the case was delayed and further expenses were incurred. Moreover, defendant spent copious amounts of time contacting her attorneys, for example when William McCartin, Esq., was involved, defendant called him at least daily, sometimes several times a day for anywhere between 5 to 30 minutes. At $350.00 per hour that quickly added up to $20,495.01. A review of the time records reveal the same pattern of continuous phone calls and conferences could be observed between defendant and each one of her attorneys. This is especially of concern given the fact that defendant claimed that she did not have enough money to timely file motions or request expert fees regarding pre-trial domestic violence. A review of the records reveal that defendant spent over 17 hours in conferences with defendant's second attorney regarding custody and over 27 hours regarding pre-trial motions with Mr. Plaine. In the month of June 2005, for example, telephone conferences with defendant in regards to a variety of issues totaled over 13 hours. This is not counting the court appearances and the time that Mr. Plaine spent working on defendant's case.
In Mesholam v. Mesholam, ( 25 AD3d 670), the Second Department concluded that:
[t]he Supreme Court's award of counsel fees to the wife was an improvident exercise of discretion ( Krutyansky v. Krutyansky, 289 AD2d 299 [2001]) in view of her abrupt discontinuance of the prior action which left the husband with no practical course but to commence a new action, her significant resources resulting from the equitable distribution of marital property, and the amount of maintenance awarded. Under the circumstances presented, the Supreme Court should have denied the wife's request for counsel fees.
In a sworn affidavit, defendant's first attorney, affirmed that defendant discontinued her initial divorce proceeding on her own accord, and not under the advice of counsel.
Defendant herein testified for eleven days. Defendant's testimony was very copious and contained significant instances of "striking" by the court portions of questions and refusing to follow direction of the court. Defendant's testimony was often non-responsive, which further prolonged litigation. Defendant's mother testified for five days often, not answering questions and refusing to follow direction of the court, with her testimony and tactics at times very similar to that of her daughter's. Given the extent to which defendant's and her mother's testimony has been striken, it is clear that defendant and her mother, a witness clearly in pari delicto with her daughter, prolonged the litigation beyond what would be reasonable and required.
Defendant also prolonged the litigation outside of the courtroom walls. Her conduct during the depositions and the demands for time she place on her attorneys, Aaron Weitz, then Anthony Danielle, and now the firm of Sankel, Skurman McCartin, were not reasonable.
The court appointed experts pursuant to 22 NYCRR 202.18 in addition to Dr. Weintrob to determine equitable distribution of the marital assets. Klein Liebman was appointed to evaluate the wife's and husband's licenses as well as the husband's practice. Gutleber was appointed to evaluate the Queens property. Joseph Monti was appointed to appraise the Brooklyn property and both parties consented to an appraiser for the properties in Israel.
Defendant's mother hired Vincent Parco, a private investigator, some time in early 2005. According to the mother's testimony, she hired and Parco without the knowledge of her daughter. Some time before April 2005, however, defendant learned of Parco and his employees went with her to the marital property to retrieve her belongings. Defendant requests that the court compel plaintiff to pay for Parco's expenses. Parco was paid and hired by defendant's mother. The court does not have authority to order fees to be paid by a party for an expert hired by a non-party.
It appears here, though, the wife has claimed that the husband is the individual who did not fully reveal his assets and controlled the finances, leaving her to expend large sums of money, yet at trial it became clear that it was the wife who wrote many of the checks, who outrightly owned in her own name the three properties in Israel valued at $970,000.00 total. The wife also owned outright the Co-op apartment valued at $280,000.00 and the Queens property valued at $715,000.00 where the husband's business operates out of; the husband all the while obeyed the pendente lite support order and paid the pendente lite counsel fee order. It was the wife who invaded the marital assets during the first week of litigation and wrote $12,000.00 in checks made payable to cash (that her parents cashed), and it was the wife who spent the "$100,000.00" during the marriage, offering different conflicting accounts. The court cannot order the husband to reimburse the wife's counsel for fees related to the representation of the charitable organization founded by the wife and husband. That charitable organization is not a party to the action. The court does not believe the requests for discovery of the organizations, books and records was unreasonable. There were 60 checks written from the charitable organization to the maternal grandparents' business.
Each of the attorneys in the action were experienced, highly regarded matrimonial litigators. Their hourly rates were commensurate with reasonable compensation for attorneys of their experience and professional standing.
The court is cognizant that counsel is requesting fees in excess of $250,000 and the sum total herein of an additional $125,000.00 will provide the wife with a total of $180,000.00 in counsel fees. Counsel for plaintiff has indicated that the husband has paid $250,000 in counsel fees and costs. The court believes that the award of counsel fees is fair and reasonable and is designed to "level the playing field", and that the husband should not be required to pay all of the wife's counsel fees based upon what is clearly an excessive burden that she has placed upon her attorneys who well deserve to be paid, but the balance of which must be paid out of her own funds. The review of the time records submitted and affirmations of counsel clearly indicate a litigant whose demands for access to counsel and experts and the monopolization of those professionals became unreasonable. The wife has repeatedly stated that she has had to expend $600,000.00 to protect herself from the husband and his expensive lawyers. Yet, the husband has incurred substantially less than the wife in counsel fees. It should also be noted that the husband inter alia should not have to pay for the wife's attorneys fees related to the husband's efforts to obtain testimony and discovery from the maternal grandmother who attempted to defeat and interfere with that discovery.
There is no basis to award defendant's Israeli real estate attorney's fee to be reimbursed. She did not represent defendant in a matrimonial action.
In December 2006 the parties and counsel stipulated in writing that the issue of counsel fees would be decided based upon submission of documents and formal testimony would be waived. Upon submission, defendant's counsel submits affirmations from experts as well. A review of the stipulation only provided for said submission for counsel fees, and not witness fees. Plaintiff's counsel avers had he known the issue of expert fees was to be included he would have inquired further from each of the witnesses on cross examination.
There appears, therefore, to be a genuine misunderstanding of what the parties agreed to as relates to the determination of expert fees. Therefore, to the extent not addressed in this decision, the parties shall either stipulate within 21 days of the date of this decision as to that issue being decided by the submissions provided, or either party may move within 21 days of the judgment being signed for a plenary hearing on the issue. In either event, the court will not delay the signing of the judgment so as to effectuate the many other provisions of this decision given the nature of the parties' continuing dispute and the present status of the child.
It should be noted that plaintiff paid all of the fees for the neutral economic evaluators, his own real estate appraiser for the South Brooklyn property ($3,000.00), 50% of the law guardian fees and forensic evaluator's fee.
The additional $125,000.00 in counsel fees shall be paid to counsel within 90 days of the date of entry of the judgment.
The court does not rule on defendant's claim at trial that she will need counsel fees for an appeal of this decision.
Sanctions
Plaintiff requests that defendant be sanctioned for frivolous litigation and trial tactics. The court further notes that an award of attorney's fees is not proper pursuant to DRL 237 under circumstances where the award is sought as a sanction for alleged improper or dilatory conduct, since a sanction can only be awarded pursuant to and in accordance with the Rules of the Chief Administrator of the Courts, 22 NYCRR 130-1.1 ( see e.g. Landes v Landes, 248 AD2d 268 [an award of $7,000 to the husband's attorney, described by the court as a "fine for this patently frivolous action," rendered it a sanction and not an award of attorney's fees, and as such, it must comply with the requirements of 22 NYCRR 130-1.1 (d)]; accord Gober v Gober, 11 AD3d 261 [plaintiff's request for counsel and expert fees pursuant to DRL 237, based upon defendant's allegedly obstructive litigation conduct, was properly denied on the ground that the divorce judgment put the parties in financial parity and made each a multi-millionaire; under the circumstances, plaintiff's remedy was to seek counsel and expert fees as a form of sanction under 22 NYCRR part 130]; Silverman v. Silverman, 304 AD2d at 47-49 [an award of counsel fees that did not serve to level the playing field, but would serve merely to punish the adverse spouse for what the court viewed as wasteful, frivolous litigation conduct, was impermissible as punitive nature; such award should instead be sought under 22 NYCRR 130-1.1]). Here, notwithstanding the wife's obstreperous conduct at trial, the court must ultimately deny the application for sanctions.The court has considered sanctioning the wife for her alleged frivolous actions regarding her testimony tactics causing the prolongation of the trial. Ultimately, the court rejects that request. There is sometimes the need for courts to put aside the acts of an individual after trial where it is clear that those individual's acts were motivated by a state of mind, not by a purposeful intention to interfere in the court process. The court once did sanction the wife $100.00 during the trial (which was held in abeyance and is now vacated) for repeatedly not answering the question posed. Once sanctioned, her answering of questions was more directed to the question as opposed to telling the court much more than the question called for.
The court believes that in issuing this opinion the wife will hopefully understand the destructive nature of her acts. Those acts are not only limited to interfering with, and by her actions encouraging the disintegration of, the relationship between father and child, but also her trial actions of not following court directions or even the requests of her own attorney. The wife's conduct permeated the prolongation of depositions and trial, all based upon her need to control questions and answers and the fear she could be "trapped" by a question or wrong answer. Her acts will not, at this juncture, rise to level of a sanction for the same reason the court rejects the husband's theory of decreased support or equitable distribution.
In Camera Interview
The court rejects as inappropriate plaintiff's counsel attempt in his post trial memorandum of law to forecast what was said by the child in the in camera interview or to interpret as a result of that in camera interview what the court should do. The court has had the benefit of three separate in camera interviews with this child, far in excess than that which the court would normally have held in any other case. The court has also had the benefit of two additional letters made part of this record while this case was sub judice from the child. Those in camera interviews and letters have been marked into evidence, have been delineated and sealed pursuant to CPLR 4019 and will be the subject of review by any other court, if appropriate. The court will not discuss or violate the sanctity of those in camera interviews in this opinion in order to protect the child, except the court has divulged, on the record, to counsel new information not previously disclosed by either parties pursuant to the seminal case on in camera interviews of Lincoln v. Lincoln ( 24 NY2d 270, 299 NYS2d 842). The court has substantially relied upon the information and telling insight it gained in those in camera interviews in writing this opinion and those transcripts speak for themselves.
On consent, the first in camera interview during the custody phase of the litigation was made a part of this record.
Withdrawal of Order of Protection
The court will not, as plaintiff suggests, taken into account in this decision the wife's consent to withdraw pre-trial the request for an order of protection. That withdrawal was without prejudice; to now hold that against defendant or for the court to draw an inference from said act would be inappropriate. Without prejudice means without prejudice to both parties!
Interest
If either party engages in inequitable or dilatory conduct regarding the compliance with this decision (judgment to be entered), the court will fix interest on any unpaid amount pursuant to CPLR 5504 ( see Greenberg v. Greenberg, 269 AD2d 354), together with any other statutory remedies.
Conclusion
The court, in refusing to grant the father economic relief because of the refusal of the child to visit with him, does so at this juncture in the hope that the mother will immediately take the steps to realize that her actions can and will have serious consequences. This court does not believe that there is a generally accepted diagnostic determination or syndrome known as "parental alienation syndrome". Each case must be reviewed on its own merits. The court is well aware that it cannot just accept the opinion of an expert and must evaluate it and then determine its efficacy or application to the case before it. This is especially true where there are allegations of domestic violence which must be considered in the context of a custody dispute (see DRL 240; see also Wissink v. Wissink, 301 AD2d 36).
Terminology such as inappropriate parental influence would be far more appropriate (see Hoult, Jennifer, The Evidentiary Admissibility of Parental Alienation Syndrome: Science Law a Policy, Children's Legal Rights Journal, vol. 26 no. 1, Spring 2006).
The court cannot ignore the fact that these parties (who have agreed to joint decision making) have entered into a stipulation settling that portion of the divorce action. This stipulation provided that not only would they engage in individual therapy but that the child will engage in therapy that the father cannot have any input related thereto at the specific request of the child. This child, it has become increasing clear, has been empowered in this divorce action and has adopted (in a rather public fashion by writing newspaper columns) the mother's cause without limitation. A child cannot be in charge of the other parent's custodial rights ( see Jeffrey T. v. Julie B., 35 AD3d 1222 [it was improper to condition visitation with an incarcerated father based upon when the child desired to have visitation]). In Hutter v. Hutter ( 839 NYS2d 541 {42 AD3d 434} [2007]), the Appellate Division recently stated:
The court has directed the mother not to have any further contact with the father's therapist. If she continues to believe this therapist should not be the father's therapist, her remedy is in a complaint to the appropriate professional body, not to contact or threaten the therapist.
The mother argues that a so-ordered stipulation that the parties entered into during the litigation, pursuant to which they agreed that the mother would have custody, was the law of the case. That argument is not properly before this court, as it was made for the first time on appeal. The argument is without merit in any event. "No agreement of the parties can bind the court to a disposition other than that which a weighing of all the factors involved shows to be in the child's best interest" ( Friederwitzer v Friederwitzer, 55 NY2d 89, 95).
After careful consideration, the court has not economically penalized the mother or the child because it appears to the court that she was not, until now, truly aware of the nature of both her active acts of alienation and her passive acts by educating the child as to the process and her own concerns by making the child part of her own crisis. This does not mean that a future application of the interference continues may not be the basis for a suspension of maintenance or support ( see DRL 241; Legdin v. Ledgin, 36 AD3d 669) nor does this court ignore that body of case law that hold that where the interference is both a "deliberate frustration" or "active interference", suspension of support may be warranted ( see Beal v. Beal, 244 AD2d 550); Hiross v. Hiross, 224 AD2d 662; Hecht v. Hecht, 222 AD2d 589; Weinrich v. Weinrich, 184 AD2d 505).
This court believes, though, that the true amount of child support and maintenance should be set before a suspension is considered so that the party that would be economically penalized will fully know and understand that which is at risk. The court also believes it would be unfair to make such a determination without both parties having had the benefit of knowing the court's findings and decisions which will now be law of the case. After reading this opinion, they both will have had a full and fair opportunity to have had the matter adjudicated. Now, with that knowledge, violation of the court's order will be dealt with appropriately.
Pending resolution of the post trial applications, the mother is hereby enjoined and restrained from discussing this litigation at any time the child may be within 1,000 feet of her. That includes her economic concerns, concerns about the father and his relationships with others, the role of therapists in a divorce, domestic violence and orders of protection, and this opinion; nor shall the mother take the child to members of the community or her parents for them to discuss the case or the parent-child relationships ( see Powell v. Blumenthal, 35 AD3d 615; AC v. DR, 36 AD3d 465).
The 1,000 feet restriction is to insure that the mother is not on the telephone within earshot of the child or that the child can pick up a phone and listen in. This direction must be scrupulously enforced especially in light of the fact that while this matter has been sub judice the father has moved for a change of custody based upon the fact that he has been totally cut off from the child and that subsequent to that application, the child, who is 13 years of age, has sent the court two typed letters by certified mail, the law guardian has been discharged, a new law guardian has been appointed and a formal application has been made by the child for an order of protection, even though they have not spoken in months. She has apparently seen him in her school and the neighborhood they share.
The mother has absolutely no right to attempt to limit access to the parent coordinator that both parties agreed to in the stipulation. This methodology was adopted by the parties in this agreement. In order for the parent coordinator to understand the nature of the parties' relationship with the child, he must be granted unfettered access to the parents and the child forthwith.
The court will adopt the methodologies approved by the First Department Rodman v. Friedman ( 33 AD3d 400) and will impose a series of fines upon the mother if she continues to prevent even one visit with the child's therapist or she fails to sign a retainer and fully and completely cooperate with the parent coordinator she agreed to forthwith. The mother and the child must understand that mother and the father have placed their own and their minor child's mental and physical health at issue in a custody / visitation dispute ( see Rosenblitt v. Rosenblitt, 107 AD2d 292, supra; and CPLR 3101, 3121). The issue is still ripe based upon the apparent post trial continuation of the litigation and the fact that the court is not bound to accept the agreement of the parties ( see Hutter v. Hutter, 839 NYS2d 541, {42 AD3d 434} supra).
The application by the child for an order of protection, which if granted, would further restrict access of the father to the child. As Dr. Weintrob testified, the affect of the continuing great length of time that the child has not seen the father is of great concern. The father must recognize that this child is truly afraid of him. Restoration of his relationship with the child must be based upon a restoration of trust. His underlying acts of rage and the "tug of war" described herein and the mother's acts, will leave an indelible mark on the child.
Plaintiff must also recognize that this court does believe there has been some level of domestic violence in this marriage. While not finding it was egregious nor did it occur in front of the unemanicipated children or upon them, based upon the testimony it did happen and is acknowledged.
Recapitulation Table No. 1
ASSETWIFEHUSBAND
Q.C. $731,000.00
Co-op Apt., Brooklyn, NY
Husband's Enhanced Earnings 296000 Wife's Enhanced Earnings 0 0 Marital Residence, Brooklyn, NY 2200000 280000Apartment #
13, Israel 300000 Apartment #
24, Israel 400000 Apartment #
22, Israel 270000 Commercial Property, Queens, NY 715000 Citibank 1119 32324.81 32324.81 Citibank 1282 35143.99 35143.99 Citibank 1303 34467.88 34467.88 Bank of Jerusalem 5667 111721.44 111721.44 Citibank 3316 6283.26 Citibank 6987 20000 Citibank 1433 12699 Atlantic Liberty 1967 20155.09 Washington Mutual 5054 8233.82 8233.82 Citibank 9017 12566.5 12566.5 Citibank 9025 12566.5 12566.5 Washington Mutual 0886 2699.5 2699.5 Automobile 5000 Repayment of Loan to Wife's Parents 30000 Contents of Brooklyn Marital Residence 23460 Contents of Apartment #
13 Israel 15000 TOTAL $2,967,321.79 $2,952,724.44
Table No. 2
(recapitulation of tax deferred subject to a Qualified Domestic Relations Order)
ASSETWIFEHUSBAND
Husband's IRA 86000 Husband's 401K 56110 Wife's IRA 89057.79
Thus, the wife has been credited with or has received $2,967,321.79 in assets and/or cash and the husband has received $2,952,724.44 in assets and/or cash. The wife therefore has received or been credited with $14,587.00 more than the husband. In order to equalize the distribution so that each party receives one half of the marital estate pursuant to this decision, the wife owes the husband $7,298.50. The husband may offset these monies from monies due and owing directly to the wife pursuant to this decision.
Settle separate Findings of Fact and Conclusions of Law and Judgment of Divorce, together with the minutes of any stipulations and inquest and a copy of this decision and within 60 days.