Opinion
No. 15225/08.
2010-09-9
P.D., Plaintiff, v. L.D., Defendant.
Anthony J. Pirrotti, Esq., Ardsley, Attorney for the Defendant. Kaminsky & Rich, White Plains, Attorneys for the Plaintiff.
Anthony J. Pirrotti, Esq., Ardsley, Attorney for the Defendant. Kaminsky & Rich, White Plains, Attorneys for the Plaintiff.
FRANCESCA E. CONNOLLY, J.
This action for divorce was commenced on July 10, 2008. A divorce was granted to the plaintiff after inquest on March 31, 2010 on the ground of constructive abandonment by the defendant. The defendant did not contest the plaintiff's testimony on divorce grounds and consented to the divorce. The trial on the ancillary issues of equitable distribution, maintenance, and child support immediately followed and continued over a period of five days. The only witnesses to testify were the parties and the plaintiff's cousin. At the conclusion of the trial, the Court reserved decision pending receipt of post-trial summations and memoranda of law, which were subsequently served and filed by both parties. The following papers were considered by the Court in rendering its decision:
Defendant's Trial Memorandum of Law
Plaintiff's Post–Trial Memorandum
Defendant's Amended Trial Memorandum of Law
Before the trial decision was rendered, the defendant moved by Order to Show Cause to re-open the trial to admit additional evidence, which application was opposed by the plaintiff. The following papers were considered in connection with the motion:
Defendant's Order to Show Cause, Affidavit, Affirmation, Exhibits1–21
Plaintiff's Affidavit in Opposition, Affirmation, Exhibits22–26
Defendant's Supplemental Affidavit, Exhibits27–31
Plaintiff's Supplemental Affidavit, Affirmation, Exhibits32–34
Plaintiff's Supplemental Post–Trial Memorandum, Exhibits35–37
Defendant's Supplemental Post–Trial Memorandum of Law38
After considering the testimony of the parties and the witness, the documents admitted into evidence, the parties' statements of proposed disposition, the parties' net worth statements, the memoranda of law, and the motion papers, the Court makes the following findings of facts deemed established by the evidence and reaches the following conclusions of law.
DIVORCE GROUNDS
After inquest, the plaintiff is granted a divorce on the ground of constructive abandonment by the defendant.
BACKGROUND
Procedural Background
The parties were married on May 27, 1984 and thereafter separated on February 20, 2007 when the defendant obtained an ex parte temporary order of protection against the plaintiff with a stay away provision. This action for divorce was commenced on July 10, 2008.
Since leaving the marital residence in 2007, the plaintiff has resided in a one-bedroom apartment in White Plains, New York, paying monthly rent of $1,478.00. He continued to pay the mortgage, utilities, and landscaping charges on the marital residence, as well as the college tuition and expenses for his daughter. He has also paid for his children's health insurance in the amount of $800.00 per month.
On June 15, 2009, the Hon. LaTia Martin, J.S.C., issued a pendente lite order essentially ordering the plaintiff to pay the defendant what he had already been paying voluntarily. Specifically, the order directed the plaintiff to pay the carrying charges on the marital residence, which included the mortgage in the amount of $1,332.73, real estate taxes of about $15,000.00 per year ($1,250.00 per month), utilities in the amount of $520.00 per month, homeowner's insurance in the amount of $170.00 per month, and household repairs, totaling about $3,272.73 per month. The order further directed the plaintiff to pay for their daughter's college tuition and expenses as and for child support. From April of 2008 to February of 2010, the plaintiff has paid $51,505.00 in college expenses, which amounts to about $1,921.04 per month. Justice Martin also awarded the defendant interim counsel fees from the plaintiff in the amount of $10,000.00. This amount, which was never paid, was thereafter reduced to a judgment. The plaintiff continues to pay for the children's health insurance expenses at about $800.00 per month.
In making its pendente lite award, the Court did not impute income to either party. However, the Court acknowledged that the plaintiff's expenses exceeded his reported income and therefore, Eisman, Zucker, Klein & Ruttenberg, LLP (“EZKR”) was appointed to conduct a neutral forensic evaluation of the plaintiff's business to estimate his income stream and the value of plaintiff's 50% interest in a hair salon as of December 31, 2008. The Court ordered the plaintiff to pay 100% of the cost for the valuation, subject to reallocation at the time of trial.
In order to pay the fees for the evaluation, the plaintiff claims he borrowed $10,378.00 from the Max Group through his cousin. He claims he still owes EZKR an additional $1,700.00 for the valuation, but does not have the financial means to pay the balance.
This case was transferred to this Court by administrative order as of January 1, 2010. The trial was held over a period of five days. The defendant seeks lifetime maintenance and child support for their daughter who is attending college. The assets to be considered in equitable distribution include the marital residence, plaintiff's business interest in his hair salon, a joint investment account with Opus Advisory Group (“Opus”), cash surrender values of life insurance policies, retirement accounts, bank accounts, and personal property. The defendant claims that she should be awarded the marital residence in equitable distribution based upon the plaintiff's economic fault in secreting and concealing assets. This claim, which the plaintiff denies, is discussed at length below.
Following the conclusion of the trial, but before decision was rendered, the defendant moved by Order to Show Cause to re-open the trial to submit additional evidence regarding the plaintiff's alleged “concealment of his finances, forging the defendant's signature to various accounts and transferring monies to his own personal account,” which evidence she claims was not available at the time of trial. In addition, the defendant submitted a supplemental affidavit informing the Court that she received a letter from her employer post-trial stating its intention not to renew her employment contract for the 2010–2011 school year.
The plaintiff opposes the motion upon grounds that the evidence the defendant seeks to introduce was disclosed during discovery and available to her prior to trial, but that defendant's counsel failed to act with due diligence during discovery to explore the issues. The plaintiff maintains that the defendant's post-trial motion is without merit and was made to delay the Court's decision to the plaintiff's detriment. The plaintiff objects to the admissibility of the letter from the defendant's employer regarding her employment status as hearsay. The plaintiff also maintains that the Court should not consider the defendant's post-trial affidavit as to her employment status, but should impute income to her based upon her earnings history. For the reasons set forth at length below, the defendant's motion to re-open the trial is denied.
The Parties and Their Children
The parties have two children, S.D., (DOB July 4, 1987), who is 24 years of age and emancipated, and A.D., (DOB February 12, 1990), who is 20 years of age. A.D. is a college student attending Hofstra University.
As of March 2010, the plaintiff was 56 years of age and the defendant was 48 years of age. Both parties appeared to be in relatively good health. Neither party presented proof nor argument that their health was a factor for the Court to consider on the issues.
The Plaintiff's Income and Earnings Capacity
The plaintiff has a high school equivalency diploma and attended one year of college, never attaining a college degree. He has been a licensed hairdresser for 39 years. In 1997, he invested $25,000.00 of marital funds to become a 50% owner of a hair salon located in White Plains, New York. The hair salon has about 16 employees, 10 of whom produce income. The remaining six employees are assistants or receptionists who are paid a salary, but do not produce income. Some of his employees earn more than $1,400.00 per week. Although the plaintiff charges the same for services as his employees, it is customary that clients do not tip owners. He works six days each week, cutting hair and maintaining the business.
According to the plaintiff's tax returns, he earned $45,166.05 in 2006, with a reported loss in partnership income of $2,039.00; he earned $49,180.81 in 2007, with a reported loss in partnership income of $843.00; and he earned $56,655.35 in 2008, with a reported gain in partnership income of $5,390.00. In 2009, the plaintiff stated in his response to interrogatories that he earned $70,000.00 per year. In his 2010 updated net worth statement, the plaintiff reported earning an annual income of $67,000.00.
The court-appointed neutral forensic financial evaluator, EZKR, valued the plaintiff's 50% share of the business at $106,000.00 and his income stream at $145,000.00 per year as of December 31, 2008. The evaluator's report was admitted into evidence without objection. Neither party called the evaluator as a witness at trial to test the validity of his conclusions by cross-examination. Nor did either party call their own expert to refute the neutral financial evaluator's findings.
Plaintiff's counsel argues that the income stream analysis is flawed in that it included as income the cost of health insurance benefits and a City of White Plains recreation fee that the hair salon pays to support a local soccer team. However, plaintiff's counsel has failed to submit competent proof to support his argument and the report indicates that EZKR considered these factors.
Conversely, defendant's counsel argues that plaintiff's income is in excess of $145,000.00. However, defendant's proof was also lacking, relying instead upon conjecture and innuendo to support her claim. The defendant's proof on this issue was chiefly her own testimony about the parties' lifestyle during the marriage, without documentation or other evidence to substantiate her claims. In his Amended Trial Memorandum of Law, defendant's counsel bases his arguments on alleged facts that are not supported by the record at trial, such as the costs of various types of hair services, which costs are inflated from those testified to by the plaintiff. No other witnesses were called at trial to testify on this issue.
The Court accepts the income analysis of the neutral forensic financial evaluator and rejects the income reported by the plaintiff in his income tax returns, net worth statements, and response to interrogatories. Accordingly, the Court imputes an annual wage to the plaintiff of $145,000.00.
The Defendant's Income and Earnings Capacity
Before the marriage, the defendant graduated from Fordham University in 1983 with a Bachelors degree. The defendant did not work outside the home while their children were young, as the parties agreed that she would devote her time raising their two daughters and maintaining the home. However, the defendant returned to work in 1997 when the children were in elementary school. From 1997 to 2000, she worked in a nursery school two to three days a week from 9:00 A.M. to 11:00 A.M.
In 2000, she began to work as an aide at a Catholic School in Greenwich, Connecticut. She was later promoted to computer teacher for grades K–5. She has held this position for the past four years. This is a contractual position with the Archdiocese of Bridgeport, which is reviewed each year in June for renewal. She works Monday through Friday from September through June from 8:00 A.M. to 3:30 P.M. and four hours per day for two to three weeks during the summer. According to the defendant, her job is in jeopardy because the Archdiocese has been eliminating this position in other schools.
The defendant is fluent in Italian and French and taught French for two years.
In addition to teaching, she has held a part-time job in retail sales at Anthropologie, a retail clothing store, earning $10.00 per hour.
For the year 2007, she earned $42,450.00 as a teacher and $2,252.12 from her job in retail sales. In 2008, she earned $43,440 .60 as a teacher and $4,1908.33 from her job in retail sales. For the school year 2009 to 2010, her salary decreased to $40,978.00 per year.
The defendant never obtained a teaching license. She decided to go back to school for a Masters degree in educational technology in January of 2007, but dropped out due to the emotional toll the separation and impending divorce placed upon her. The defendant testified that a Masters program costs about $20,000.00 to complete and it will take her about two years to obtain her teacher certification. The defendant believes that a Masters degree is necessary for her professional development as a teacher. She would like to pursue her Masters degree in teaching and claims she will need at least $1,500.00 per month to accomplish this. The defendant did not submit any proof to support her estimated costs in connection with obtaining a Masters degree.
Post-trial, the defendant submitted an affidavit informing the Court that she received a letter from her employer advising that it did not intend to renew her 2010–2011 school year contract. Plaintiff objects to the admissibility of the letter as hearsay and because defendant's counsel thwarted plaintiff's right to verify this claim by giving him a restricted authorization prohibiting him from speaking to the defendant's employer. Nevertheless, the plaintiff maintains that even if the defendant lost her job, the Court should impute income to her based upon her earnings history.
The Court accepts plaintiff's arguments and declines to consider either the defendant's affidavit or the letter from her employer in determining her earnings capacity, which is discussed more fully below. Plaintiff's counsel was willing to consider waiving his objection to admissibility pending his independent verification of the defendant's employment status. However, his right to uncover critical facts to dispute the defendant's claim was frustrated by defendant's counsel providing a restricted authorization prohibiting plaintiff's counsel from speaking to defendant's employer—a third party—a prohibition defendant's counsel had no authority to make. Considering the defendant's prior earnings history and potential, the Court imputes income to her in the amount of $45,000.00 per year.
Predivorce Standard of Living
The defendant seeks $7,500.00 per month in lifetime maintenance. The defendant's trial testimony focused on convincing the Court that the parties lived a lavish lifestyle. In support of her argument, she produced photographs of various interior rooms of the marital residence, as well as photographs of jewelry, wines and liquors, and designer handbags and shoes that were purchased over the course of the parties' 24 years of marriage before their separation.
The defendant also testified as to a major renovation that was completed on the marital residence about six years ago, where the size of the home was increased from 2,000 to 3,000 square feet. According to the defendant, the cost of the new addition was $350,000.00, which she claims the plaintiff paid for in cash. The plaintiff disputes this claim and testified that the cost of the addition was much less, approximately $150,000.00, and was funded by refinancing the mortgage and using savings. Neither party submitted any independent proof to corroborate their testimony as to the cost of the renovation or the source of funding.
The defendant also testified at trial that the parties spent an additional $65,000.00 on new furnishings and accessories for the home. However, in her net worth statements, she estimates the total value of the home furnishings to be $15,000.00. At trial, the defendant did not present any evidence to substantiate her claim as to the cost of these items.
The defendant claims that the plaintiff was responsible for all of the finances during the marriage and was very controlling. According to the defendant, before the separation, the plaintiff would give her $2,500.00 to $3,000.00 per month in cash for spending. She claims that the parties lived a lavish lifestyle, dining out in expensive restaurants every Saturday night, going on vacations every year, and spending money on luxury items such as expensive jewelry and designer handbags. The plaintiff disputes the defendant's claim that the parties lived an extravagant lifestyle, and claims he would only give the defendant $200.00 per week in cash for groceries and that the defendant would charge everything else. The plaintiff maintains that he did not spend more than $20,000.00 for jewelry for the defendant over their 24–year marriage and that they vacationed one to two weeks each year, typically to beaches on the east coast from Maine to Florida. They also vacationed in Italy three times, and in Venezuela, St. Martin, and California. The children also vacationed in Aruba and the Bahamas, paid for by the plaintiff.
The plaintiff's income was used to pay the marital expenses, while the defendant admits that her income was spent for her own enjoyment and for the children.
Assets to be Considered in Equitable Distribution
The assets to be considered in equitable distribution include the marital residence, plaintiff's business interest in the hair salon, a joint investment account with Opus Advisory Group (“Opus”), cash surrender values of life insurance policies, retirement accounts, bank accounts, and personal property.
DISCUSSION/ANALYSIS
EQUITABLE DISTRIBUTION
The premise of the equitable distribution law is that “a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner or homemaker.” (O'Brien v. O'Brien, 66 N.Y.2d 576, 585 [1985];Fields v. Fields, ––– N.Y.2d ––––, 2010 WL 2301107 [2010].) “The Equitable Distribution Law reflects an awareness that the economic success of the partnership depends not only upon the respective financial contributions of the partners, but also on a wide range of nonenumerated services to the joint enterprise, such as homemaking, raising children, and providing emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home.” (Price v. Price, 69 N.Y.2d 8, 15 [1986].)Although equitable distribution does not necessarily mean equal distribution, the general rule calls for an equal distribution of the marital assets, unless the equities of an individual case require an unequal distribution. ( See Conner v. Conner, 97 A.D.2d 88, 96, 468 N.Y.S.2d 482 [2d Dept 1983].) The basic premise of equitable distribution is that:
“modern marriage should be viewed as a partnership of co-equals. Upon the dissolution of a marriage, there should be an equitable distribution of all family assets accumulated during the marriage and maintenance should rest on the economic basis of reasonable needs and the ability to pay. From this point of view, the contributions of each partner to the marriage should ordinarily be regarded as equal and there should be an equal division of family assets, unless such a division would be inequitable under the circumstances of the particular case.” (Conner v. Conner, 97 A.D.2d 88, 96, 468 N.Y.S.2d 482 [2d Dept 1983] [citing 11C Zett–Kaufman–Kraut, N.Y.Civ.Prac., Appendix B, p. 8].)
“The trial court is vested with broad discretion in making an equitable distribution of marital property and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed.” (Michaelessi v. Michaelessi, 59 A.D.3d 688, 689, 874 N.Y.S.2d 207 [2d Dept 2009].) “In determining equitable distribution, the trial court is directed to consider statutory factors, including the income and property of each party at the time of the marriage, and at the time of the commencement of the divorce action, the duration of the marriage, the age and health of the parties, any maintenance award, and the nontitled spouse's direct or indirect contributions to the marriage, including services as a spouse, parent, wage earner and homemaker.” (Loria v. Loria, 46 A.D.3d 768, 770, 848 N.Y.S.2d 681 [2d Dept 2007]; Domestic Relations Law § 236[B][5][d][6].) Pursuant to Domestic Relations Law § 236B(5)(d), the court shall consider the following 13 factors in making an equitable distribution of the marital property:
1. Income and property;
2. Duration of the marriage and age and health of the parties;
3. Need of custodial parent to occupy or own the marital residence;
4. The loss of inheritance and pension rights;
5. An award of maintenance;
6. Direct and indirect contributions;
7. Liquid or non-liquid character of the property;
8. Future financial circumstances of the parties;
9. The difficulty of valuing marital assets;
10. The tax consequences to each party;
11. The wasteful dissipation of assets;
12. Transfer in contemplation of action;
13. Any other factors.
Marital property is defined in Domestic Relations Law § 236 B(1)(c) as “all property acquired by either or both spouses during the marriage ...” Under the law of equitable distribution, there is a presumption that all property acquired by either spouse during the marriage is marital property. ( SeeDomestic Relations Law § 236[B][1][c] ). The burden rests with the titled spouse to rebut the presumption of marital property. (DeJesus v. DeJesus, 90 N.Y.2d 643, 652 [1997].) “[M]arital property should be construed broadly in order to give effect to the economic partnership concept of the marriage relationship.' ” (Fields v. Fields, ––– N.Y.2d ––––, 2010 WL 2301107 [2010].) “By contrast, separate property—denoted as an exception to marital property—should be construed narrowly.' ” ( Id.)
Separate property is “property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse ...”. (Domestic Relations Law § 236 B[1][d] ). Separate property also includes “property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse.” (Domestic Relations Law § 236[B][1][d][3].)
Where separate property of one spouse appreciates during the marriage due to market forces rather than the efforts of the titled spouse, the appreciation remains separate property and the nontitled spouse has no claim to a share of the appreciation. (Price v. Price, 69 N.Y.2d 8, 18 [1986].) The nontitled spouse bears the burden of establishing that the increased value was due in part to his or her efforts as opposed to market forces or other unrelated factors. (Bonanno v. Bonanno, 57 A.D.3d 1260, 1261, 870 N.Y.S.2d 551 [3d Dept 2008] .)
Guided by these principles of law and those discussed below, the statutory factors, and the equities of the parties' circumstances, the Court makes the following equitable distribution of the marital property.
—The Plaintiff's Business Interest—Hair Salon
The plaintiff has been a licensed hairdresser for 39 years, attaining his skills well before the marriage. In 1997, he invested $25,000.00 of marital funds to become a 50% owner of a hair salon. He works six days each week, cutting hair and maintaining the business. It is conceded that the defendant never worked at the salon and no proof was presented as to her direct contributions to the value of the business, other than the initial contribution from marital funds.
The court-appointed neutral forensic financial evaluator, EZKR, evaluated the plaintiff's 50% share of the business at $106,000.00 and his income stream at $145,000.00 as of December 31, 2008. The report of the neutral forensic financial evaluator was admitted into evidence without objection. Neither party called the expert as a witness at trial to test the validity of his conclusions by cross-examination. Nor did either party call their own expert to refute the neutral financial evaluator's findings. The Court accepts the neutral forensic evaluator's figures in determining equitable distribution of the value of the plaintiff's business.
“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.” (Kaplan v. Kaplan, 51 A.D.3d 635, 637, 857 N.Y.S.2d 677 [2d Dept 2008].) In equitably distributing a spouse's business interest, the court must consider the direct contributions the non-titled spouse made to the business as well as the indirect contributions to the marital partnership, including homemaking, parenting, and providing the necessary emotional and moral support to sustain the titled spouse in carrying on the business. ( See Price v. Price, 69 N.Y.2d 8, 15 [1986];Granade–Bastuck v. Granade–Bastuck, 249 A.D.2d 444, 445, 671 N.Y.S.2d 512 [2d Dept 1998].)
Unlike other marital assets, in valuing a non-titled spouse's share in a spouse's business interest, the Second Department typically upholds awards between 25% and 35% to the non-titled spouse. ( See H. Cohen and T. James, “ What's Equitable When Distributing Businesses, Enhanced Earning Capacity? ” New York Law Journal, August 9, 2010; see e.g., Chalif v. Chalif, 298 A.D.2d 348, 349, 751 N.Y.S.2d 197 [2d Dept 2002][25% award to wife of husband's medical practice and enhanced earning capacity]; Granade–Bastuck v. Granade–Bastuck, 249 A.D.2d 444, 445, 671 N.Y.S.2d 512 [2d Dept 1998][25% award to plaintiff of defendant's law practice]; Giokas v. Giokas, 73 A.D.3d 688, 900 N.Y.S.2d 370 [2d Dept 2010][10% award to wife of husband's business]; Kerrigan v. Kerrigan, 71 A.D.3d 737, 896 N.Y.S.2d 443 [2d Dept 2010][35% award to wife of the husband's business]; Ciampi v. Ciampi, 47 A.D.3d 745, 747, 850 N.Y.S.2d 190 [2d Dept 2008][35% award to wife of husband's business]; Kaplan v. Kaplan, 51 A.D.3d 635, 637, 857 N.Y.S.2d 677 [2d Dept 2008][30% award to wife of the husband's dental practice].)
Beyond the initial monetary contribution from marital funds, no evidence was introduced that the defendant contributed directly to the appreciation in value of the business. The plaintiff acquired his expertise as a hairdresser well before the marriage and used this expertise as a foundation for his business. While the defendant was the primary caretaker of the children and the home, the plaintiff also contributed to the household by taking responsibility of the family's finances, doing laundry, and going grocery shopping. The defendant testified that she sacrificed her career in not pursuing her Masters degree during the marriage to care for the family, which is a factor the Court has considered. Although she worked outside the home as a teacher once the children were in elementary school, her earnings were not used to pay the marital expenses, but were used for her own enjoyment and for the children.
Since the plaintiff used $25,000.00 of marital funds to start the business, the defendant is awarded 50% of this amount, or $12,500.00. Of the remaining $81,000.00, after careful consideration of the contributions, both direct and indirect, of the parties to the value of the business, the Court awards the defendant 30%, or $24,300.00, making the defendant's total credit for the business asset $36,800.00.
—The Marital Residence
The parties purchased the marital residence, located in Rye Brook, New York, in August of 1992 for $315,000.00. The funds to purchase the marital residence came from a mortgage in the amount of $240,000.00 and proceeds from the sale of a residence the plaintiff previously owned and purchased before the marriage in the amount of $75,000.00. As of June 25, 2009, the appraised value of the marital residence was $780,000.00. The residence is encumbered by a mortgage in the amount of $214,000.00, leaving equity in the home of approximately $566,000.00.
The marital residence is 3,000 square feet with four bedrooms. The defendant resides in the home with the parties' older daughter, who is now emancipated, and the parties' younger daughter, who is away at college most of the time. The plaintiff has been paying the mortgage, taxes, insurance, and utilities for the marital residence since he moved out in February 20, 2007, which total about $3,300.00 per month. —The Plaintiff's Separate Property Interest in the Marital Residence
The plaintiff claims a separate property interest in the down payment on the marital residence in the amount of $75,000.00, which amount came from the sales proceeds from the plaintiff's home that he purchased before the marriage located in Philipstown, New York. The plaintiff purchased the Philipstown property on August 4, 1983, ten months before the marriage, for approximately $77,000.00. The plaintiff purchased the home with his pre-marital savings of $35,000 .00 and a mortgage loan for $42,000.00. The defendant made no monetary contribution to purchase this residence. The parties resided in the Philipstown home for about eight years following their marriage in 1984 until June of 1992 when it was sold, approximately two months before the marital residence was purchased. According to the defendant, the monthly mortgage was paid from the parties' joint account. The parties' children were born in the Philipstown home. No testimony or other proof was introduced at trial to establish what, if any, improvements were made to the property or what efforts or contributions were made by either party that caused the property's value to appreciate.
The Philipstown property sold for $146,500.00, leaving net proceeds from the sale of the home in the amount of $106,000.00 after paying off the mortgage in the amount of $40,500.00. According to the plaintiff, the mortgage balance was reduced by $1,500.00 during the marriage by using marital funds. The plaintiff placed the net proceeds in the parties' joint account for convenience from June to August 1992 before the parties closed on the marital residence. At the closing, the plaintiff contributed $75,000.00 of the proceeds from the sale of his separate property to purchase the marital residence. The remaining $31,000.00 became commingled with the marital funds in the joint account. The plaintiff makes no separate property claim to this remaining amount.
Where a spouse traces his or her separate funds to deposits into the parties' joint accounts that were made as a matter of convenience, he or she is entitled to a separate property credit. ( See McGarrity v. McGarrity, 211 A.D.2d 669, 671, 622 N.Y.S.2d 521 [2d Dept 1995].) Here, the defendant does not dispute that the plaintiff purchased the Philipstown property before their marriage with his own funds and that it constitutes the plaintiff's separate property. However, the defendant argues that the funds from the sale of the property became transmuted when the plaintiff placed them in the parties' joint account for two months pending the purchase of the marital residence. Other than the sales proceeds from plaintiff's separate property, no other possible source of funds for the down payment on the marital residence has been shown. ( See Sarafian v. Sarafian, 140 A.D.2d 801, 804, 528 N.Y.S.2d 192 [3d Dept 1988].) The Court finds the plaintiff's testimony concerning his separate property claim, sufficiently substantiated by documentation, to be credible.
Although the plaintiff deposited $106,000.00 of his separate funds generated from the sale of his separate property into the parties' joint account for a period of two months before the marital residence was purchased, this limited commingling does not change the nature of the funds from separate to marital. Contrary to the defendant's claim, the record does not demonstrate that the plaintiff's separate funds were transmuted into marital property by the actions of the parties. ( See Feldman v. Feldman, 194 A.D.2d 207, 215–216, 605 N.Y.S.2d 777 [2d Dept 1993].) Thus, the plaintiff is entitled to a credit of $75,000.00 for the investment of his separate funds in the marital residence. ( See Midy v. Midy, 45 A.D.3d 543, 545, 846 N.Y.S.2d 220 [2d Dept 2007].)
“Appreciation in the value of separate property is considered separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse.” ' (Bernholc v. Bornstein, 72 A.D.3d 625, 628, 898 N.Y.S.2d 228 [2d Dept 2010][ citing Johnson v. Chapin, 12 N.Y.3d 461, 466].) “When the nontitled spouse makes direct financial contributions to the property and/or direct nonfinancial contributions to the property such as by personally maintaining, making improvements to, or renovating a marital residence,' or the appreciation is the result of both parties' efforts, appreciation due to those efforts constitutes marital property subject to equitable distribution.” ' ( Id.) Where such appreciation is not due, in any part, to the efforts of either spouse but to the efforts of others or to unrelated factors including inflation or other market forces, the appreciation remains separate property, and the nontitled spouse has no claim to a share of the appreciation. (Feldman v. Feldman, 194 A.D.2d 207, 215–216, 605 N.Y.S.2d 777 [2d Dept 1993].) The nontitled spouse bears the burden of establishing that the increased value in the separate property of the titled spouse was due in part to their efforts as opposed to market forces or other unrelated factors. (Bonanno v. Bonanno, 57 A.D.3d 1260, 1261, 870 N.Y.S.2d 551 [3d Dept 2008].)
However, “where marital funds are used to pay off the separate debt of the titled spouse on the separate property, the nontitled spouse may be entitled to a credit.” ( Id., citing Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 421 [2009].) “The reduction of indebtedness on separate property is not considered appreciation in the value of the separate property; rather, the credit is to remedy the inequity created by the expenditure of marital funds to pay off separate liabilities. The marital funds used to pay off those liabilities are added back into marital property, and the nontitled spouse is awarded his equitable share of those recouped marital funds.” ( Id. at 628–629, 881 N.Y.S.2d 369, 909 N.E.2d 62,citing Kilkenny v. Kilkenny, 54 A.D.3d 816, 819 [2008];Markopoulos v. Markopoulos, 274 A.D.2d 457, 458–459, 710 N.Y.S.2d 636 [2d Dept 2000].)
While the parties resided in the Philipstown home for eight years after their marriage, the defendant makes no argument or claim that she is entitled to the appreciation in value of the plaintiff's separate property, and her counsel presented no proof at trial for the Court to find in her favor on this issue. Although the defendant, as the nontitled spouse, had the burden of proof on this issue, neither party presented any evidence as to improvements, changes, repairs, or maintenance made to the Philipstown home during the marriage. The Court can only conclude that the appreciation in value of the plaintiff's separate property was due to inflation or other market forces and not as the result of the efforts of the marital partnership. Therefore, the appreciation remains the plaintiff's separate property, to which the defendant has no claim. ( Id. at 217, 710 N.Y.S.2d 636;See Burgio v. Burgio, 278 A.D.2d 767, 769, 717 N.Y.S.2d 769 [3d Dept 2000].)
Although the defendant made no claim at trial to the reduction in the mortgage on the plaintiff's separate property through the use of marital funds, the proof presented at trial established that the mortgage was paid from the parties' joint account and that the mortgage was reduced by $1,500.00 (from $42,000.00 to $40,500.00) at the time of sale. Thus, the defendant is entitled to a credit for 50% of the reduction in the mortgage, or $750.00, reducing the plaintiff's separate property credit to $74,250.00. —Exclusive Use and Occupancy of the Marital Residence
The defendant requests an award of exclusive use and occupancy of the marital residence. In determining whether to make such an award, the court “should give weight to the relative financial resources of the parties, the need of either party for occupancy of the home, and the duration of the exclusive possession.” (Ripp v. Ripp, 38 A.D.2d 65, 69, 327 N.Y.S.2d 465 [2d Dept 1971], aff'd, 32 N.Y.2d 755 [1973].) The court should consider such factors as “the cost of maintaining the home in comparison to the benefits received, the financial hardship suffered by either party by the refusal to authorize a sale of the property, the presence or absence of children to enjoy the use of the home, or the size and expansiveness of the home in relation to the expected use.” ( Id.) “Only when the interests of one party (or the children of the marriage) are so predominant, when counterpoised against the interests of the other, that exclusive possession is virtually compulsory should the court act to continue the co-ownership.” ( Id. at 70, 344 N.Y.S.2d 950, 298 N.E.2d 114)
“Ordinarily, trial courts should avoid a method of distribution which permits one party immediate enjoyment while relegating to the other spouse a relatively long and uncertain wait ... [T]here is absolutely no basis for exclusive possession to continue once the youngest child graduates from high school, absent extraordinary circumstances.” (Cutson v. Cutson, 161 A.D.2d 996, 999, 557 N.Y.S.2d 568 [3d Dept 1990].)
No extraordinary circumstances are presented here to warrant an award of exclusive, use, and occupancy of the marital residence to the defendant now that both children have graduated from high school. The defendant presented no proof at trial to establish her need to occupy the marital residence or her financial ability to do so. Both of the parties' children are over the age of 18—one child is already emancipated and the other will be emancipated in about six months. ( cf. Campbell v. Campbell, 286 A.D.2d 467, 729 N.Y.S.2d 531 [2d Dept 200].) The marital residence is clearly the most valuable marital asset and each party has the right to access their share of the equity. Additionally, the plaintiff has a separate property interest of $74,250.00 in the marital residence, which he cannot realize without the property being sold. Considering all of the facts and circumstances presented here, along with the statutory factors, the defendant's application for exclusive use and occupancy of the marital residence is denied.
As discussed at length below, the Court finds no merit to the defendant's claim that the plaintiff's alleged actions in concealing or secreting assets warrant a finding of economic fault to justify awarding her the marital residence.
—Defendant's Claim of Economic Fault against the Plaintiff
The defendant claims that the plaintiff secreted or concealed assets to prevent the court from making an equitable distribution of property and therefore, his economic fault should be considered as a factor in adjusting equitable distribution. Specifically, the defendant argues that the plaintiff's economic fault justifies awarding her the marital residence in equitable distribution. “Economic fault, which consists of dissipation or secreting of assets, or other conduct which unfairly prevents the court from making an equitable distribution of marital property, has generally been considered relevant to the distribution.” (Blickstein v. Blickstein, 99 A.D.2d 287, 472 N.Y.S.2d 110 [2d Dept 1984].) “Once such a finding is made, the trial court must consider the missing assets in making its distributive award.” (Contino v. Contino, 140 A.D.2d 662, 529 N.Y.S.2d 14 [2d Dept 1988].)
Findings of economic fault have been made in the following situations: where the husband hid assets in a foreign bank account preventing the court from accurately assessing the size of the marital estate, and by squandering sizeable sums on luxury items and in admitted adulterous affairs (Maharam v. Maharam, 245 A.D.2d 94, 666 N.Y.S.2d 129 [1st Dept 1997] ); where the wife admitted that she did not truthfully complete her net worth statement, and failed to provide an adequate explanation as to how she was able to afford to pay for a significant elective procedure with her claimed level of assets (Michaelessi v. Michaelessi, 59 A.D.3d 688, 874 N.Y.S.2d 207 [2d Dept 2009]; where the plaintiff withdrew funds in the amount of $105,000.00 from bank accounts and concealed them so they could not be distributed, and where the parties' lifestyle could not be supported by the resources the plaintiff revealed to the trial court (Contino v. Contino, 140 A.D.2d 662, 529 N.Y.S.2d 14 [2d Dept 1988]; where the husband's claimed unemployment and poverty were found to be contrived (Griffin v. Griffin, 115 A.D.2d 587, 496 N.Y.S.2d 249 [2d Dept 1985] ); where the husband dissipated marital assets by diminishing the value of the family-owned business and transferring funds to third parties without fair consideration (Davis v. Davis, 175 A.D.2d 45, 573 N.Y.S.2d 162 [1st Dept 1991]; where, in defiance of a temporary restraining order, the husband fraudulently conveyed marital assets to third parties to evade the wife's claims to equitable distribution (Hasegawa v. Hasegawa, 290 A.D.2d 488, 736 N.Y.S.2d 398 [2d Dept 2002].)
Here, the defendant claims that the Court should award her the marital residence based upon the plaintiff's economic fault. The Court has spent a tremendous amount of time and effort parsing through defendant's counsel's claims, and concludes that there was no intent to deceive or willful concealment of assets on the plaintiff's part to warrant a finding of economic fault. While the plaintiff should have spent more time and attention in preparing his net worth statements, the Court finds no basis to find that the plaintiff willfully concealed or secreted assets, as defendant's counsel suggests. All of the assets that the defendant's counsel claims were “concealed” or “secreted” were identified and disclosed during discovery.
However, defendant's counsel did not diligently pursue discovery to trace all of the assets prior to trial. The withdrawals the defendant questions were from the parties' joint account—an account the defendant knew about and had an equal right to access. Defendant's counsel questioned the plaintiff about his withdrawals at his deposition, but never followed through to obtain the account records until after the trial.
In his post-trial motion to re-open the trial, defendant's counsel focuses on a Merrill Lynch joint account, which the defendant claims she first learned about after the trial when she found a box in her closet containing copies of old statements. Defendant's counsel never tells the Court that this account last existed in 2005 when the plaintiff transferred the funds to another joint account at Opus Advisory Group (SEI Investment account). The Merrill Lynch account was disclosed during discovery on the parties' 2005 joint tax return. Although the plaintiff apparently signed the defendant's name on the Opus SEI Investment application to make the transfer, an action the Court does not condone, the transfer was made two years before the parties separation and three years before the divorce action was commenced, to another joint account to which the defendant had an equal right to access. The plaintiff claims that he left the Opus SEI Investment application for the defendant to sign, but she never did so, so he signed it for her in order to make the transfer for the parties' benefit. Even though the plaintiff admits to signing the defendant's name on the application forms, the Court finds no intent to deceive on the part of the plaintiff in making the transfer from the Merrill Lynch account to the joint Opus SEI account. The defendant was fully aware of the Opus SEI account, which is an asset to be distributed in equitable distribution. Since the Opus SEI account was joint, the defendant had equal access to the funds.
The parties' joint Opus SEI Investment account and the plaintiff's individual savings account at Citizens Bank were identified in the plaintiff's net worth statements. However, the amounts the plaintiff listed as withdrawals and deposits were estimated and inaccurate. Defendant's counsel could have obtained copies of the account statements during discovery to verify the figures, but waited until trial to investigate. While defendant's counsel claims that the plaintiff failed to disclose withdrawals from the joint Opus SEI account, this is misleading, as the plaintiff was questioned about the withdrawals at his deposition and admitted that withdrawals were made.
The plaintiff failed to list his life insurance policy in his 2007 Net Worth Statement, but it was disclosed during discovery and listed in the 2010 net worth statement. The parties stipulated to the value at trial.
Defendant's counsel faults the plaintiff for reporting the value of his IRA in his 2010 net worth statement as $24,660.00, when the value at the time of trial was $30,791.20, concluding that this information was “false.” Defendant's counsel's use of the word “false” is harsh under the circumstances, as he never considered the broad fluctuations in values that are normal in today's markets as the reason for the discrepancy.
Defendant's counsel spent much time at trial and in his Trial Memoranda of Law on the issue of the jewelry the plaintiff removed from the marital residence when he was barred by the temporary order of protection in February of 2007. The parties gave conflicting testimony—the plaintiff testified that the defendant voluntarily gave him the jewelry out of rage because she did not want it anymore, while the defendant testified that the plaintiff removed it without her permission. In any event, the scene at the home at the time was indeed heated and emotional, where neither party acted rationally. Both parties knew that the plaintiff had the jewelry and the defendant never pursued its return prior to trial. The plaintiff presented a bag of jewelry at trial that was identified. After the trial was concluded, both parties with their counsel finally went to the safe deposit box on April 19, 2010, where the remaining jewelry was found, consistent with the plaintiff's testimony. No credible claim has been made that any jewelry is missing. Predictably, the parties resolved the issue concerning the distribution of the jewelry by stipulation post-trial.
Defendant's counsel also questions the contents of the parties' joint safe deposit box, making an unfounded claim that the plaintiff concealed an IRA,
the children's savings bonds, and jewelry, when the defendant had an equal right to access the box.
The IRA that was found in the safe deposit box was from Chemical Bank, a bank that merged with JP Morgan Chase and is no longer in existence. This IRA was transferred to Chase and is an asset to be distributed.
Neither the defendant nor her counsel ever sought access to the joint safe deposit box during the pendency of the divorce proceedings. However, after the trial was concluded, the parties went to the safe deposit box, conducted an inventory, and resolved all issues regarding the contents and distribution of personal property by stipulation. Had this been done prior to trial, the defendant's questions, concerns, and anxiety about the jewelry and contents of the box could have been alleviated, the number of contested issues would have been streamlined, and the trial would have been concluded in less than half the time.
The defendant's counsel faults the plaintiff for not disclosing the contents of the parties' joint bank safe deposit box, when the defendant had the same right as the plaintiff to access the contents and never requested the right to do so before the commencement of the trial. Defendant's counsel claims that the plaintiff “lied” about not entering the joint safe deposit box after he was removed from the marital residence, but failed to submit any proof at trial to support this claim. Rather, in his Amended Trial Memorandum of Law, submitted after the trial, he annexes a document purporting to be a “Safe Deposit Box Access Record” that he claims shows that the plaintiff accessed the safe deposit box on April 4, 2007. However, this document was never admitted at trial, nor has the defendant submitted any foundation to establish that this document is what the defendant purports it to be. The signature on the record is not discernible and could be anyone's. Nevertheless, even if this Court were to consider this document for the proposition adduced by the defendant—that the plaintiff is guilty of economic fault—it is not persuasive proof.
This type of practice is not helpful to the litigants, as it prolongs the litigation, creating unnecessary acrimony, anxiety, and uncertainty, while driving the costs of the litigation to a proportion that is not warranted by the circumstances of the case.
The Court does find troubling the disparity in income the plaintiff reported on his income tax returns and net worth statements compared to the income stream analysis provided by EZKR, the court-appointed neutral financial evaluator. The plaintiff reported his yearly income between $45,000.00 and $70,000.00 per year, while the court-appointed neutral financial evaluator found his annual income stream to be $145,000.00, two to three times the reported amount. However, the plaintiff fully cooperated with the neutral financial evaluator to accurately assess the value of the business and income stream, with the expert making no claim that assets were secreted or concealed. Nevertheless, considering the significant disparity in income, which established the need for the neutral forensic evaluation, the plaintiff shall be responsible for paying 100% of the costs of the expert fee. In addition, the Court has accepted the valuations of the neutral forensic evaluator in making its awards of equitable distribution and maintenance.
—Defendant's Post–Trial Motion to Re–Open the Trial
The defendant moves by Order to Show Cause to re-open the trial to submit additional evidence regarding the plaintiff's alleged concealment of his finances, forging the defendant's signature to various accounts, and transferring monies to his own personal account, which evidence was allegedly not available prior to trial. As discussed at length in footnotes 1, 2, and 3, the Court finds no willful concealment of assets or intent to deceive on the plaintiff's part in transferring the funds from the parties' joint Merrill Lynch account to the joint Opus SEI Investment account three years before the divorce action was commenced. While the plaintiff admits to signing the defendant's name to the application forms to effectuate the transfer, the defendant was fully aware of the existence of the joint Opus SEI Investment account and had equal access to withdraw the funds. The Court gave the parties adequate opportunity to submit documents and papers post-trial on the issues the defendant raises. After considering the post-trial submissions and the trial testimony and evidence, the Court finds no need to re-open the trial for additional evidence, as the papers adequately address the issues, and the material facts, which are discussed below, are not in dispute.
Between the time the plaintiff was barred from the marital residence by a temporary order of protection with a stay away provision in February of 2007 and the commencement of the divorce action on July 10, 2008, the plaintiff withdrew $18,000.00 from the joint Opus SEI Investment account and deposited the funds into his own checking account with Citizens bank.
From these funds, the plaintiff accounts for $10,166.30, which were used to pay municipal and school taxes. While the plaintiff claims that the remainder of the joint funds withdrawn in the amount of $7,833.70 were used to pay for various unspecified bills as they became due, he does not adequately explain why the joint funds were needed to pay these bills, as opposed to using his own income. He also fails to explain which bills were actually paid, and whether the bills were his own or for the family. Since the Court cannot conclude that the unaccounted for joint funds were used to pay for legitimate living expenses, the defendant is entitled to a credit of 50% of this amount, or $3,916.85. ( See Maczek v. Maczek, 248 A.D.2d 835, 837, 669 N.Y.S.2d 749 [3d Dept 1998]; Sivigny v. Sivigny, 213 A.D.2d 243, 245, 624 N.Y.S.2d 120 [1st Dept 1995].)
The plaintiff made the following withdrawals from the parties' joint Opus SEI Investment account: $8,000.00 in April of 2007, $4,000.00 in June of 2007, and $6,000.00 in September of 2007. Although two of these checks were payable to the order of both parties, the back of the checks contain no signatures, but were stamped “for deposit only” and were accepted by Citizens Bank for deposit into the plaintiff's account.
For the time period between the date of commencement on July 10, 2008 and the date of the pendente lite order on June 15, 2009, the plaintiff withdrew $9,800 from the joint Opus SEI account
and paid a total of $11,660.42 for their daughter's college expenses ($7,255.00) and school taxes ($4,405.42). Since the plaintiff has adequately accounted for these funds, the defendant is not entitled to a credit for any amount of these withdrawals.
The plaintiff withdrew $2,000.00 in July of 2008 and $7,800.00 in April of 2009. These checks were payable to the order of both parties, but were stamped “for deposit only” and were accepted by Citizens Bank for deposit into the plaintiff's account without any signatures.
For the period after the pendente lite order, the plaintiff withdrew $1,100.00 from the joint Opus SEI account
and used $1,023.62 of the funds to pay for municipal taxes. However under the pendente lite order, the plaintiff was obligated to pay the real estate taxes on the marital residence from his own funds, and therefore, the defendant is entitled to a credit of 50% of $1,100.00, or $550.00. ( See Sivigny v. Sivigny, 213 A.D.2d 243, 244–245, 624 N.Y.S.2d 120 [1st Dept 1995].)
The plaintiff withdrew $1,100.00 in February of 2010. The check was made payable to the order of both parties, but was stamped “for deposit only” and was accepted by Citizens Bank for deposit into the plaintiff's account without any signatures.
Based upon the foregoing, the defendant is entitled to a credit of $4,466.85 for withdrawals from the joint Opus SEI account against the plaintiff's share in equitable distribution.
—Joint Checking/Savings/Investment Accounts
—Joint Accounts at Chase and Bank of New York/HELOC
The defendant admits that in 2007 she withdrew $53,000.00 from the parties' joint checking and savings accounts at Chase Bank and Bank of New York and the plaintiff admits that he withdrew $50,000.00 from Chase Bank, thereby depleting the parties' joint accounts at these banks. To equalize the distributions from these joint accounts, the plaintiff shall be awarded a credit of 50% of the $3,000.00 disparity, or $1,500.00.
The plaintiff's request for a credit for the cost of the car he purchased for their daughter is denied, as the proof indicates that he chose to make this purchase voluntarily on his own without the defendant's consent.
( See Heiny v. Heiny, 74 A.D.3d 1284, 1288, 904 N.Y.S.2d 191 [2d Dept 2010].)
The plaintiff used $20,000.00 of the funds he withdrew from the joint accounts to purchase their daughter a car.
The plaintiff's request for a credit for interest the defendant received from the deposit of the HELOC funds into her own account is granted to the extent of awarding him a credit of 50% of $1,746.00, or $873.00.
The plaintiff's request for a credit for interest payments he made on the HELOC resulting from the defendant's withdrawal is denied for lack of competent proof.
In July of 2007, the plaintiff withdrew $20,000.00 from the HELOC to purchase the car for their daughter prompting the defendant to withdraw the remaining $280,000.00 and deposit the funds in her personal bank account, generating $1,746.00 in interest. Both parties subsequently agreed to return the funds and close the HELOC.
Based upon the foregoing, plaintiff's total credit on these items is $2,373.00. —Opus Advisory Group—Joint SEI Investment Account
As of January 12, 2010, the joint Opus SEI account had a balance of $44,145.53. This account shall be closed within 30 days of the date of this Decision and Order, with the proceeds distributed equally between the parties.
The pre-commencement withdrawals were accounted for and discussed at length under the heading “Defendant's Post–Trial Motion to Re–Open the Trial” at pages 26–28.
—Life Insurance Policies
The parties stipulated to the cash value of three life insurance policies as of February 2010 at $56,120.57, which is marital property. The value of these policies shall be divided equally between the parties.
—Retirement Assets
—Plaintiff's IRAs
The plaintiff had an IRA with SEI that had a value of $31,869.06 as of January 12, 2010. He also had a Roth IRA with Park Avenue Securities LLC that had a value of $1,189.77 as of December 31, 2009. He also had a Retirement Money Market at Chase Bank with a value of $3,413.11 as of January 23, 2007.
The total value of plaintiff's retirement assets subject to equitable distribution is $36,471.94, which the parties shall share equally at $18,235.97 each. —Defendant's IRAs
See plaintiff's Exhibit 9 in evidence—Chase Bank statement for period December 22, 2006 through January 23, 2007.
The defendant had an IRA with SEI that had a value of $7,060.84 as of January 12, 2010. She also had a Roth IRA with Park Avenue Securities LLC that had a value of $1,307.75 as of December 31, 2009. The total value of defendant's retirement assets subject to equitable distribution is $8,368.59. The parties shall share these accounts equally at $4,184.30 each. —Distribution of IRA Funds
Each party is entitled to $22,420.27 of marital IRA funds. The funds shall be distributed within 30 days of the date of this Decision and Order by transferring $14,345.13 from plaintiff's account number 206091 to an IRA account established for the defendant. The parties shall retain their other accounts.
—Marital Debt
“[M]arriage may be viewed as an economic partnership ... in which spouses share in the profits and assets of the partnership as well as in the losses and liabilities incurred in the pursuit of marital wealth.” ( Gelb v. Gelb, 163 A.D.2d 189, 191, 558 N.Y.S.2d 934 [1st Dept 1990].) “[E]xpenses incurred prior to the commencement of a divorce action constitute marital debt and should be equally shared by the parties.” (Bogdan v. Bogdan, 260 A.D.2d 521, 688 N.Y.S.2d 255 [2d Dept 1999].) “[M]ortgages and debts incurred during the marriage constitute joint obligations which are the responsibility of both parties.” (Loria v. Loria, 46 A.D.3d 768, 770, 848 N.Y.S.2d 681 [2d Dept 2007].)
Neither party presented proof at trial of any marital debt other than the mortgage on the marital residence. Each party shall, therefor, be solely responsible for any credit card debt in his or her name and shall be equally responsible for satisfying the mortgage on the marital residence, which shall be paid at the time of closing.
—Personal Property
The parties' personal property shall be distributed in accordance with the parties' post-trial stipulation.
MAINTENANCE AND CHILD SUPPORT
—Maintenance
“The amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts. The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting.” (Kilkenny v. Kilkenny, 54 A.D.3d 816, 820, 863 N.Y.S.2d 807 [2d Dept 2006].) “In fixing the amount of a maintenance award, a court must consider the financial circumstances of both parties, including their reasonable needs and means, the payor spouse's present and anticipated income, the benefitting spouse's present and future earning capacity, and both parties' standard of living.” (Morrissey v. Morrissey, 259 A.D.2d 472–473, 686 N.Y.S.2d 71 [2d Dept 1999].) The main purpose of a maintenance award is to give the nonmonied spouse economic independence. (Giokas v. Giokas, 73 A.D.3d 688, 900 N.Y.S.2d 370 [2d Dept 2010].)
In determining the appropriate amount and duration of maintenance, the court is required to consider the following factors as enumerated in Domestic Relations Law § 236 F(6)(a):
1. The income and property of the respective parties including marital property distributed;
2. The duration of the marriage and the age and health of both parties;
3. The present and future earning capacity of both parties;
4. The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefore;
5. Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment or career opportunities;
6. The presence of children of the marriage in the respective homes of the parties;
7. The tax consequences to each party;
8. Contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party;
9. Wasteful dissipation of marital property;
10. Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
11. Any other factor(s).
In addition to these enumerated factors, the parties' predivorce standard of living is an essential component of evaluating and properly determining the duration and amount of the maintenance award to be accorded a spouse. (Hartog v. Hartog, 85 N.Y.2d 36, 50–51 [1995].)
In determining a party's support obligation, “the court need not rely upon a party's own account of his or her finances, but may impute income based upon past income or demonstrated earning potential.” ( Id.) “[W]here a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed.” (Rohrs v. Rohrs, 297 A.D.2d 317, 318, 746 N.Y.S.2d 305 [2d Dept 2002].) As discussed more fully above, the plaintiff's annual income is imputed at $145,000.00 and the defendant's annual imputed income is $45,000.00.
The Court will not consider the defendant's affidavit submitted post-trial alleging a change in circumstances concerning her employment, or the letter from her employer, as it would prejudice the plaintiff. ( See Higgins v. Higgins, 50 A.D.3d 852, 854, 857 N.Y.S.2d 171 [2d Dept 2008].) Plaintiff's counsel was willing to consider waiving his objection to admissibility pending his independent verification of the defendant's employment status. However, his right to uncover critical facts to dispute the defendant's claim was frustrated by defendant's counsel providing a restricted authorization prohibiting plaintiff's counsel from speaking to defendant's employer—a third party—a prohibition defendant's counsel had no authority to make. “Counsel for all parties have a right to interview an adverse party's witnesses (the witness willing) in private, without the presence or consent of opposing counsel and without a transcript being made.” (International Business Machines Corp. v. Edelstein, 526 F.2d 37, 42 [CANY 1975].) Conducting interviews of third party witnesses is a valuable avenue of “informal discovery of information that may serve both litigants and the entire justice system by uncovering relevant facts, thus promoting the expeditious resolution of litigation.” ( Niesig v. Team I, 76 N.Y.2d 363,376 [1990].) Since defendant's counsel impeded the informal discovery process proposed by the Court as a means to resolve the issue expeditiously, the Court can not consider the defendant's affidavit or the letter from her employer. Considering the defendant's prior earnings history and potential, the Court imputes income to her in the amount of $45,000.00 per year.
The defendant's request for lifetime maintenance is not reasonable under the circumstances presented here. “Lifetime maintenance is appropriate only where a spouse is incapable of future self-support or has clearly subordinated a career to act as homemaker or parent ... has no obvious skills or training ... or is mentally or physically ill.” ( See Sivigny v. Sivigny, 213 A.D.2d 243, 624 N.Y.S.2d 120 [1st Dept 1995].) The defendant has a Bachelors degree and is fluent in three languages. She has a recent earnings history as a teacher and salesperson of about $47,000.00 per year, indicating that she is indeed capable of being self-supporting. While the defendant testified that she did not pursue her Masters degree in order to care for the family, under the circumstances presented here, this is not the equivalent of the defendant “subordinating her career to act as a homemaker or parent” to justify an award of lifetime maintenance.
The parties lived a comfortable lifestyle, in a nice home, in a good neighborhood. The parties' children are older and will be emancipated within a few months. The defendant is educated, eight years younger than the plaintiff, and with a longer worklife expectancy. Considering her educational background and that she is multi-lingual, her job prospects at an income level comparable to her current earnings or even higher are likely. While both parties appeared in good health, the plaintiff's work as a hairdresser requires physical labor that will likely limit his earnings capacity in the years to come. According to the worklife expectancy tables, the plaintiff has a life expectancy of 20.3 years and a work life expectancy of 8.3 years, and the defendant has a life expectancy of 32.5 years and a worklife expectancy of 12.3 years. ( See NYPJI, Civil Appendix B Tables of Working Life for Men and Women, Tables 3 and 8; J.S. v. J.S., 19 Misc.3d 634, 650, 857 N.Y.S.2d 427 [Sup Ct Nassau Co 2008].)
Considering the statutory factors as applied to the equities presented here, the Court awards the defendant maintenance for a period of five years from the date of this order, payable by the plaintiff as follows: $2,000.00 per month commencing on the first day of the month immediately following the sale of the former marital residence and continuing for a period of 24 months, at which time the maintenance payment shall be reduced to $1,000.00 per month, and shall end five years from the date of this order, or upon the defendant's remarriage or the death of either party, whichever occurs earlier. ( See Scheer v. Scheer, 130 A.D.2d 479, 480–481, 515 N.Y.S.2d 61 [2d Dept 1987].)
Unless otherwise agreed to by the parties in writing, the plaintiff shall make the maintenance payment at the beginning of each month, payable to the defendant at her residence or any other place she designates in writing to the plaintiff by regular and certified mail, return receipt requested. The maintenance payments shall be taxable to the defendant, as recipient, and deductible to the plaintiff, as payor.
The pendente lite order shall continue until the former marital residence is sold. As the plaintiff has paid the household expenses since the commencement of the action, both prior to and pursuant to the pendente lite order, the award of maintenance shall not be retroactive. ( See J.S. v. J.S., 19 Misc.3d 634, 652, 857 N.Y.S.2d 427 [Sup Ct Nassau Co 2008].)
The defendant has expressed a desire to return to school to attain a Masters degree to further her career as a teacher. This is indeed reasonable, as a Masters degree is a requirement for teaching and will enhance her ability to become self-supporting. Accordingly, in addition to the maintenance award, should the defendant choose to attain her Masters degree, the plaintiff shall pay the defendant's tuition expenses at a rate not to exceed that of a New York State university, along with her required books and fees. ( See Frost v. Frost, 49 A.D.3d 1150, 1151, 854 N.Y.S.2d 621 [4th Dept 2008].) The plaintiff shall pay the tuition expenses, required books, and fees in a timely manner upon receipt of the bills from the defendant. The defendant shall complete the Masters degree program within five years from the date of this Decision and Order, with the plaintiff's obligation to pay for the tuition, required books and fees ceasing at that time.
—Child Support
Pursuant to Domestic Relations Law § 240(1–b), the Court has considered the calculations delineated in Domestic Relations Law § 240(1–b)(c) as well as the factors set forth in Domestic Relations Law § 240(1–b)(f), which permit a deviation from the calculations set forth in Domestic Relations Law § 240(1–b)(3). “Child support is determined by the parents' ability to provide for their child rather than their current economic situation. An imputed income is based, in part, upon a parent's past earnings, actual earning capacity, and educational background.” (Morrissey v. Morrissey, 259 A.D.2d 472–473, 686 N.Y.S.2d 71 [2d Dept 1999].)Considering the standard of living the child enjoyed during the marriage, the economic reality of raising a family in Westchester County, and the disparity in the parents' income, the Court will apply the child support guidelines to the total amount of the parties' combined incomes, including the imputed amounts referenced above. Based upon the facts and circumstances of this particular case, this application would result in a just and appropriate award for child support. (Domestic Relations Law § 240[1–b][c][3]; Matter of Cassano v.Cassano, 85 N.Y.2d 649 [1995];McAuliffe v. McAuliffe, 70 A.D.3d 1129, 1133, 895 N.Y.S.2d 228 [3d Dept 2010].)
The combined parental income is $190,000.00. However, considering maintenance payments by the defendant and FICA, the total income amounts to $169,430.00. Applying the CSSA percentage of 17%, the non-custodial parent's pro rata share of the basic child support obligation is $17,658.00 per year, or $1,471.50 per month. Accordingly, the plaintiff is directed to pay the defendant $1,471.50 per month as and for child support. The plaintiff shall also pay 60% of all statutory add-ons for the reasonable expenses of education, extracurricular activities, and non-reimbursed medical and dental costs for the parties' child after the defendant presents any related bills. (Domestic Relations Law § 240[1–b][c][4], [5] and [7].) The plaintiff is entitled to a credit against his child support obligation for the amounts he contributes to the college expenses for their daughter for room and board. (Rohrs v. Rohrs, 297 A.D.2d 317, 746 N.Y.S.2d 305 [2d Dept 2002].)
The plaintiff's child support payment in the amount of $1,471.50 per month shall commence as of September 20, 2010 and shall continue until their child turns 21 or becomes emancipated, whichever occurs earlier. Since the plaintiff has been paying the household expenses and the child's college expenses of about $1,921.04 per month, the award shall not be retroactive.
The plaintiff asks the Court to direct the parties to establish a college fund from the sales proceeds from the marital home to cover the costs of the child's last two years of college. However, in the absence of a voluntary agreement, the court may not mandate a parent to pay college expenses of a child after the child reaches the age of 21. (Lincer v. Lincer, 30 A.D.3d 382, 383, 817 N.Y.S.2d 92 [2d Dept 2006].)
Unless otherwise agreed to by the parties in writing, the plaintiff shall pay the child support payment at the beginning of each month, payable to the defendant at her residence or any other place she designates in writing to the plaintiff by regular and certified mail, return receipt requested.
“Where a noncustodial parent meets all or a substantial part of a child's financial needs, a court may determine that the noncustodial parent is entitled to declare the child as a dependent.” (Popelaski v. Popelaski, 22 A.D.3d 735, 738, 803 N.Y.S.2d 108 [2d Dept 2005].) Since both parties have contributed towards the child's support, they shall alternate years in taking her as a tax exemption. Whichever parent took the child as a tax exemption in 2009, the other parent shall be entitled to take the exemption in 2010.
—Medical and Dental Insurance
The plaintiff shall maintain existing medical and dental insurance for the parties' minor child until she turns 21 or becomes emancipated, whichever occurs earlier. The defendant shall use participating providers under the plaintiff's medical and dental insurance plans whenever possible.
—Life Insurance Policy
The plaintiff shall maintain life insurance naming the defendant as irrevocable beneficiary in a face amount sufficient to secure his maintenance and child support obligation. ( SeeDomestic Relations Law § 236[B][8][a]; Hartog v. Hartog, 85 N.Y.2d 36 [1995].) The plaintiff is permitted to reduce the principal amount of the death benefit each year by the annual amount of his maintenance and child support obligation.
SALE OF THE MARITAL RESIDENCE
It is ordered that within 30 days of the date of this order, the former marital residence shall be listed for sale on the Westchester County Multiple Listing Service with a reputable broker familiar with the neighborhood at an asking price calculated to attract a sale at fair market value. The parties shall execute the customary listing agreement with the real estate broker. If the parties cannot agree on an asking price, the appraiser who prepared the appraisal in evidence, Lane Appraisals, Inc., shall determine the asking price. The parties shall accept any offer within 10% of the asking price. If the house does not sell within 45 days, the sales price shall be reduced by 5%. Thereafter, the sales price shall be reduced by 5% every 45 days, for a total of three price reductions within 135 days. If the parties cannot agree on a further reduction in the asking price, then either party may apply to the court for a further reduction in the listing price or for a determination of an acceptable sales price.
Both parties shall fully cooperate with each other and third parties in the sale of the marital residence so as to produce the best sale price. The residence shall be made available at reasonable times for all purposes to facilitate the sale and shall be maintained in a manner to promote its sale. The listing broker shall be permitted to place a lock-box on the premises so that the residence may be viewed when no one is home.
The gross proceeds of the sale shall first be applied to discharge any tax liens, existing mortgages, broker's commission, attorney's fee, payment of customary and usual closing costs, and payment of any agreed upon cost of repairs or allowance to the purchaser to render the premises saleable or as a condition of the contract of sale. The net sales proceeds shall be distributed as follows: $35,356.15 to the plaintiff as his net credit against the defendant's share in equitable distribution;
an amount equal to one-half the reduction in the principal amount of the mortgage and one-half the real estate taxes paid from his separate funds from July 10, 2008 (date of commencement) and the date of sale. ( See Louzon v. Montalto, 70 A.D.3d 652, 653, 893 N.Y.S.2d 630 [2d Dept 2010]; Grasso v. Grasso, 47 A.D.3d 762, 764, 851 N.Y.S.2d 213 [2d Dept 2008]; Kilkenny v. Kilkenny, 54 A.D.3d 816, 819, 863 N.Y.S.2d 807 [2d Dept 2008].) The remaining net proceeds shall be divided equally between the parties.
The net credit takes into account the plaintiff's separate property credit in the marital residence of $74,250.00; his credit for the distribution of the of the parties joint bank accounts of $2,373.00; less the defendant's credits for the joint Opus SEI withdrawals of $3,916.85 and the defendant's share of the plaintiff's business interest of $36,800.00.
COMPUTATIONS
The plaintiff is entitled to the following credits against the defendant's share in equitable distribution:
1. Separate property credit—$74,250.00
2. Distribution from joint bank accounts—$2,373.00
Plaintiff's credit: $76,623.00
The defendant shall be entitled to the following credits against the plaintiff's share in equitable distribution:
1. Withdrawals from joint Opus SEI account—$4,466.85
2. Defendant's business interest—$36,800.00
Defendant's credit: $41,266.85
Deducting the defendant's credit, the plaintiff is entitled to a net credit of $35,356.15 from the defendant's share in equitable distribution, which shall be paid at the time of closing from the net proceeds from the sale of the former marital residence.
The other financial accounts shall be distributed in accordance with this Decision and Order. The parties shall cooperate with each other to close the accounts and distribute the funds in an efficient and expeditious manner.
COUNSEL FEES
Defendant's counsel has made application for counsel fees from the plaintiff in the amount of $65,000.00, which is the outstanding bill he claims for services rendered. Plaintiff opposes the application and requests a hearing on the issue. Accordingly, the parties shall appear for a hearing before this Court on the issue of counsel fees on December 13, 2010 at 9:30 A.M. Pending the hearing date, the parties are encouraged to make efforts to resolve the issue on their own without court intervention.
CONCLUSION
The Court has considered the additional contentions of the parties not specifically addressed herein and finds them to be without merit.
This constitutes the Decision and Order of the Court.
Either party may settle the judgment in accordance with this Decision and Order within 45 days.
8. The net credit takes into account the plaintiff's separate property credit in the marital residence of $74,250.00; his credit for the distribution of the of the parties joint bank accounts of $2,373.00 (discussed below); less the defendant's credits for the joint Opus SEI withdrawals of $3,916.85 and the defendant's share of the plaintiff's business interest of $36,800.00.