Anonymous AB v Anonymous DB
Annotate this CaseDecided on October 13, 2005
Supreme Court, Nassau County
Anonymous AB, Plaintiff
against
Anonymous DB, Defendant
xxxx
Anthony J. Falanga, J.
This action seeking a divorce on the ground of cruel and inhuman treatment, and ancillary relief, was commenced on or about June 10, 2003. By order dated December 23, 2003, both parties' applications for temporary custody were denied and an injunction was issued prohibiting either party from taking the children out of the United States. The plaintiff was granted omnibus pendente lite financial relief pursuant to an order dated February 24, 2004. The parties entered into a written "parenting-time" stipulation on February 8, 2005. The trial of the action commenced on February 1, 2005. On that date, an inquest was conducted on grounds and the plaintiff was granted a judgment of divorce on the ground of constructive abandonment. Entry of the judgment of divorce was stayed pending the determination, after trial, of ancillary issues. The trial continued on February 2, 2005; February 3, 2005; February 4, 2005; February 7, 2005; February 9, 2005; February 10, 2005; February 16, 2005; February 17, 2005; February 18, 2005; February 28, 2005; March 1, 2005; March 2, 2005; March 3, 2005; and concluded on March 4, 2005. At the conclusion of the trial, the Court reserved decision, pending receipt of post-trial memoranda and summations which were thereafter served and filed by both plaintiff's counsel, defendant's counsel and the law guardian, marked as Court Exhibits VI, IV, and V respectively. The parties stipulated that the issue of counsel fees would be determined upon the submission of affirmations which were thereafter served and filed and marked as Court Exhibits VII, VIII, IX and X.
The plaintiff testified on her own behalf and called the following persons as witnesses: M. D.; S. M. R.; C. M.; Harris Kantor, Esq.; Dr. Joseph Tripodi; Dr. William H. Kaplan; and David Gressen, CPA. The defendant testified on his own behalf, and called his mother H. B. and a private investigator, Anna Santiago, as witnesses. Dr. Peter J. Favaro, the expert appointed by the Court to conduct a custody forensic evaluation, also testified.
Findings of Fact [*2]
Background
Uncontroverted Testimony
The parties met in Poland and were married there in a religious ceremony on September 10, 1994, after a civil ceremony conducted in April 1994. There are three infant issue of the marriage, P born December 11, 1996; C born May 25, 1999; and V born September 15, 2000. The plaintiff is 32 and the defendant is 38 years old. The parties and their children are all in good health. The plaintiff earned a bachelor's degree in economics in 1993 and a master of business administration in international economics in 1994 in Poland, prior to the marriage. She first came to the United States after she married the defendant. The defendant has dual citizenship in Poland and the United States. He came to the United States when he was 14 years old. He obtained a bachelor's degree in engineering in 1990 from Manhattan College and an MBA from Fordham University in 1997.
After they married, the parties resided with the defendant's parents in an apartment in Manhattan. The plaintiff was first employed in this country as a babysitter. She became literate in a computer program, "Sabre System" utilized by travel agencies and obtained employment in that industry. Eventually, plaintiff became employed by American Express Travel as a "senior travel consultant." She was earning approximately $50,000.00 a year when she ceased said employment in 1999 upon the birth of the parties' second child. She was not gainfully employed thereafter until May 2003 when she commenced employment as a secretary for Coach Realty, earning $293.00 net biweekly working 16 hours a week. She was not employed at the time of trial.
The defendant was employed by N D C from 1994 through 1998. It was during this period that he attended school in the evenings at Fordham University, earning an MBA in 1997. He accepted employment with D and T in 1998 at a starting salary of $90,000.00. For eight months he worked in the Kansas City office of D and T and spent long weekends at home in New York. In 1999, the defendant commenced employment as an IT consultant, specializing in implementation/programing of oracle and people software with C G, at a starting salary of $125,000.00. Upon obtaining this employment, he made his parents, rather than the plaintiff, the beneficiaries of a $500,000.00 life insurance policy provided as a benefit of his employment. His employment required, at times, that he travel away from home, including a one month trip to Asia. The defendant ceased working for C G in December 2004. He was earning approximately $150,000.00 a year at that time. He earned $145,831.00 in 2001; $142,495.00 in 2002 and $146,379.00 in 2003. He received a severance package in December 2004. He acquired a 401k incident to his employment with C G.
In or about February 2001, the parties, their children, and the defendant's parents moved into a residence in M. The first floor on the residence consists of two bedrooms with a joint bathroom, kitchen, diningroom and livingroom, and the upstairs has two bedrooms and a bathroom. During the marriage, the parties slept in the master bedroom upstairs and all three children used the second upstairs bedroom. The defendant's parents slept downstairs and the second bedroom on the first floor was used as a guest room.
A deed to said premises was not offered into evidence, but the defendant and his [*3]mother testified that they took title to the residence at a closing on February 8, 2001. Neither the defendant nor his mother testified as to whether title was taken as tenants in common or joint tenants with survivorship rights. The purchase price was $440,000.00. The deposit on contract of $44,000.00 was paid by a check drawn on the defendant's Citibank checking account and negotiated on December 12, 2000. Cancelled checks received in evidence document that mortgage and utility payments were paid by checks drawn on the defendant's checking account. No documentary proof was adduced that defendant's parents made any financial contribution toward the purchase or maintenance of the premises. The parties' 2001 income tax return indicates that they took the full real estate tax of $6062.00 and mortgage interest deductions of over $25,000.00, relating to the marital residence. There was an original mortgage on the marital residence in the sum of $396,000.00. The premises was refinanced in 2002, less than one year after the purchase. At the time of the trial, the premises had an appraised value of $785,000.00 and was encumbered by a mortgage in the sum of $475,000.00.
At the time of the trial, both parties, their three children, and the defendant's parents were residing in the marital residence in M. The plaintiff resided on the second floor and the defendant and his parents resided on the first floor. Pursuant to the "parenting-time" stipulation dated February 8, 2005, the plaintiff "parents" the children Tuesday through Saturday and the defendant "parents" them Saturday through Tuesday. The stipulation requires that the children sleep in their upstairs bedroom, establishes detailed bedtimes for the children, affords the grandparents five minutes with the children before bedtime to say goodnight, and prohibits the removal of the children's personalty from the marital residence.
On December 6, 2002, the plaintiff filed a bankruptcy petition. According to said petition, plaintiff owned $2120.00 in personal property and owed $45,513.12 to unsecured creditors, consisting of credit card companies and health service providers. Documents received in evidence indicate that between 1999 and June 2002, balance transfers were made against plaintiff's MNBA and Discover charge cards in the total sum of $32,700.00 to defendant's checking account and to pay credit cards maintained in his name, to wit: the November 12, 1999 statement of plaintiff's MBNA account shows a balance transfer to defendant's checking account in the sum of $15,000.00; the September 13, 2000 statement of said account shows a $1000.00 payment to defendant's American Express account; the December 13, 2000 statement of said account shows a $3200.00 payment to defendant's American Express account; the December 26, 2000 statement of plaintiff's Discover card account shows a cash advance payment to defendant's American Express account of $12,000.00; and the June 26, 2002 statement of plaintiff's Discover card shows a transfer to defendant's American Express card of $1500.00. Plaintiff's indebtedness to MNBA and Discover were included in her bankruptcy petition.
In 2001, shortly after moving to M, the plaintiff was caught shoplifting in a Lord and Taylors department store. While being detained by the store, the plaintiff telephoned her mother-in-law for help. The defendant's mother went to the store, and assisted plaintiff in avoiding arrest by paying a sum of money to the store. In the summer of 2002, plaintiff underwent gallbladder surgery performed by Dr. Joseph Tripodi. On or about November 4, 2002, plaintiff underwent a leg vein stripping procedure. On November 25, 2002, plaintiff presented in Dr. Tripoldi's office for a scheduled visit as a follow-up to her gallbladder surgery. [*4]On December 2, 2002, plaintiff appeared in Dr. Tripoli's office, although she did not have a scheduled follow-up appointment relating to the gallbladder surgery on that date. As a result of such visit, Dr. Tripoldi wrote a letter to plaintiff's referring physician, Dr. Luciano stating that plaintiff had presented in his office complaining of bruises to her neck, left hip and thigh; that he observed some bruising on plaintiff's thigh and hip, but none on her neck; that plaintiff had confided to him that said bruises were inflicted by the defendant; and that plaintiff had told him she had been treated for said bruises the previous weekend at Lenox Hill Hospital. On June 2, 2003, plaintiff obtained all copies of Dr. Tripodi's letters in her file; and on June 18, 2003, she advised him that he had incorrectly informed Dr. Luciano that she had been seen in Lenox Hill Hospital. On that same date, Dr. Tripoldi wrote Dr. Luciano a letter stating that he had been incorrect in his prior letter when he had stated that plaintiff had been seen at Lenox Hill Hospital.
In or about 2002, plaintiff commenced a relationship with one A R, whom she met in a cell phone store in 2001. In January 2003, she consulted with an attorney, Harris Kantor, Esq. about a divorce. In February 2003, defendant's parents hired a private investigator to follow plaintiff. In March 2003, a hidden video camera was installed in the livingroom in the marital residence. On February 10, 2003, plaintiff and defendant's mother went to Harris Kantor's office and obtained a copy of his file notes. On March 26, 2003, plaintiff was videotaped engaging in sexual relations with a male other than her husband in the livingroom of the marital residence.
The plaintiff denied engaging in such conduct to the court appointed custody forensic evaluator, until she was confronted with the existence of the videotape. The parties' two younger children were at home at the time, in locked rooms. Between February 18, 2003 and March 17, 2003, a private investigator observed the plaintiff in the company of Mr. R and the parties' children on at least six occasions. On one such occasion, on March 17, 2005, the plaintiff did not return from having lunch with Mr. R in time to pick up P (then 6 years old) from the school bus, and she allowed V (then 21/2 years old) to cross a street by herself, while she rushed home to meet the school bus.
On or about May 1, 2003, upon observing water from an overflowing tub leaking downstairs, the defendant's mother discovered that the plaintiff had left the parties' sons unattended in a bathtub in a upstairs bathroom while she talked on the phone in her bedroom. The following day, the plaintiff was admitted to St. Francis Hospital complaining of breathing difficulties. After two days at St. Francis, she was transferred to South Oaks Hospital where she remained until May 8, 2003. Her discharge summary states that she had been treated during the previous year for depression by her primary care physician; that she had been prescribed Wellbutrin and Zanax and had abruptly stopped the medication. During this period of time, plaintiff lost a substantial amount of weight, going from a size 12 to a size 4. In May 2003, after her discharge from South Oaks, the plaintiff approached a neighbor, S M R, a practicing matrimonial attorney, at the children's school bus stop, and advised her that she had been the victim of domestic violence. Ms. R advised plaintiff to file a petition for an order of protection in Family Court. In May 2003, the plaintiff obtained an ex parte temporary "stay away" order of protection against the defendant based upon allegations of assaultive conduct she alleged occurred in November 2002. In June 2003, the plaintiff commenced the instant divorce action. [*5]On July 21, 2003, each party obtained a final "do not harass" order of protection against the other on consent. Said orders expired in July 2004. On July 25, 2003, the plaintiff filed a police report stating that she believed the defendant had taken their children to Poland. The defendant and children were at a Mets baseball game. On February 22, 2005, the defendant filed a police report stating that the plaintiff had inappropriately "spanked" the children.
Testimony
The plaintiff testified that the defendant has been physically and emotionally abusive to her throughout the marriage; he physically assaulted her on their honeymoon cruise, when, as they prepared to have lunch, he insisted that they "have sex" and when she resisted, he struck her in the head and various other parts of her body until "he got what he wanted;" he told her repeatedly throughout the marriage that she was "not good enough for him" and was not capable of performing activities pleasing to him; in 1996, during a visit to Poland, the defendant physically assaulted her while she was pregnant with P; she and the defendant argued about spending their last night of the trip having dinner with her parents and he proceeded to call her names, hitting her in the head, face and all over her body, stating "I wish I could rip that baby right out of you;" she had previously suffered a miscarriage and feared the assault would result in another miscarriage; defendant controlled every aspect of her life and did not permit her to socialize with friends without his permission; defendant threatened physical harm and threatened she would lose the children; defendant hit her in the eye, but she told her doctor she was hit with a tennis ball; there were numerous other physical attacks, usually when she told the defendant that she was too tired to have sex; in November 2002, while at the marital home an argument began concerning the plaintiff's parents coming from Poland to visit, and the defendant told her that her parents couldn't visit and proceeded to hit her in the face, pull her hair, push her down the stairs, kicking her and chasing her around the house; this incident occurred while defendant's mother and grandmother were in the room; the bruises she exhibited to Dr. Tripodi in December 2002 were on her left hip and thigh, and not from the vein stripping procedure which was done on her right leg; defendant threatened to kill her if she ever filed for divorce; the defendant struck her on at least ten occasions; when her husband found out that she had consulted with Harris Kantor, he intimidated her into having his mother accompany her to return to Mr. Kantor's office and retrieve whatever notes Mr. Kantor may have taken; the defendant warned her to never go see another lawyer and that he wanted her to get the notes from the attorney, because "no Jewish lawyer was going to know about him."
According to the plaintiff, she was the primary caretaker of the children throughout the marriage; she took four months off after P's birth; she breast fed P until he was a year old, pumping milk and coming home from work at lunch time to feed him; a babysitter as well as the defendant's parents helped care for P; she changed his diapers and got up with the baby during the night; defendant, who was traveling on business a great deal of the time, spent little time with his son, not even on the weekends when he may have been home; she breast fed C; took the children to the pediatrician; organized play dates; registered the children in school; brought both sons to an arts and crafts program; read to them; took them to the zoo; cared for V in the same fashion, as the parties' sons, after her birth; was the parent who got up with the children during the night; took all three children on errands as the defendant refused to watch them even for an [*6]hour; cared for the children while defendant was frequently absent from the home on work related travel or vacation; she also cleaned the house and cooked meals; in addition to his absences from home for work related reasons, the defendant often took vacations on his own, including trips in the year 2000 to Aspen Colorado, San Diego California, as well as to Costa Rica for a wedding where he stayed for two or three weeks, and a number of trips to Poland to visit family and to check on a house he owned there before their marriage; the defendant also extended a number of business trips by several weeks which he used as vacation, such as extending a seven or ten day business trip to Singapore, Hong Kong and Australia to six or seven weeks. On cross examination, plaintiff conceded that she traveled to Poland with the defendant in 1996 and 2001 or 2002; Miami in 1998; St. Lucia in 2000, Aruba, Lake Placid, Washington D. C. in 2003 and on a ski trip to Gore Mountain in 2003; and that the defendant's parents did not accompany them on these trips.
Plaintiff denied that she took medication to lose weight, or drank an excessive amount of coffee. She stated that she would "smack" the children on their bottoms with "light force." She denied she ever assaulted the defendant and denied drinking alcohol excessively. She testified that she ended her affair with A in or about August 2003.
Plaintiff related that the defendant exercised total dominion over the family's finances; he told her he had purchased a home in Poland before he married her; that he was in the process of renovating same and intended to live there some time in the future; the defendant was using marital income to renovate the house in Poland; that at his request, she photographed the progress of renovations for him when she visited her ill grandfather in Poland in December 2000 or 2001; during the marriage, the parties maintained one joint checking account; her pay checks were deposited into said account; the defendant maintained several bank accounts in his name; the defendant would pay the bills; both parties had credit cards; she took cash advances against hers, on the defendant's instructions; he told her he used the cash advances to make improvements to the house in Poland; defendant gave her $250.00 a week for groceries and she had the use of credit cards with his permission; she first obtained a driver's license two years ago and presently drives a 1997 Dodge Caravan; defendant suggested she file bankruptcy and hired an attorney for that purpose; he transferred all of his debt into her name; defendant incurred substantial credit card debt, running up balances and making balance transfers including from credit cards in her name which she never used; defendant refused to reside without his parents and told her she was "not good enough to live alone with him;" the defendant had represented that they parties would buy a house in Sound Beach where they would live without his parents, but he changed his mind and purchased the residence in M; plaintiff quit her job with Coach Realty, where she had been employed as a receptionist because she needed to meet with her attorney to prepare for trial.
The plaintiff asserts that the defendant is undermining her relationship with the children. She testified that starting sometime in 2003, her relationship with her son P had deteriorated as a result of the defendant's influence; P told her that he hated her and stated, "daddy says you don't love us" and "why don't you go to your boyfriend - you threw daddy out of the house and made him sleep on the street;" for two months P didn't speak to her and before then behaved rudely and "mean" towards her in a totally disrespectful manner; currently, the
[*7]
relationship between the plaintiff and P, however, was described by her to be quite good; she has recently taken the children to restaurants, to the library, to the circus and to "Disney on Ice;" P stated to her, "I love you so much" and "I want to live with you;" two or three weeks ago when she wasn't feeling well P gave her a card he prepared in school so that she would feel better; P acts angry towards her after he has spent time with the defendant and/or his parents; plaintiff has heard the defendant say to P that if he's angry with his mother he can call the police; at times P has imitated the defendant by walking around the house calling her a "bitch," which the defendant has done in the presence of the children.
The plaintiff called M D as a witness. He testified that he was the owner of N D Corporation and had worked with the defendant from October 1992 through in or about March 1998; he knew the defendant before the witness met the plaintiff; he and his wife socialized with the parties; the defendant showed him a picture of a house he had inherited in Poland which he was renovating; the defendant told him he periodically went to Poland to supervise the work, and he intended to move to Poland with the children; he complained about the amount of money he had to send to Poland for the renovation, and he spoke about the house frequently.
S M R was called as a witness on behalf of the plaintiff. She testified that she first met the plaintiff in the fall of 2001 at a school bus stop; she had observed plaintiff interacting with her children and other children; the plaintiff presented as being "kind, loving and sweet;" plaintiff always kissed and hugged her son P as he got on the bus; the witness was present at various play dates involving her child and P, some of which were at plaintiff's home; during the play dates plaintiff was very loving and involved; she observed plaintiff's children acting in a loving manner towards their mother and she had no reservations entrusting her children with the plaintiff and has, in fact, recommended plaintiff as a babysitter; she and the plaintiff became friends and she was eventually retained by the plaintiff to represent her in her divorce action; in or about May 2003, plaintiff told her she was having trouble with her marriage, that she had already seen an attorney and that she needed help due in part to the fact that her husband had been assaulting her over a period of time; after being advised of the alleged assaultive behavior on the part of the defendant, Mrs. R told the plaintiff that she was going to take her to the Family Court the next day, which she did.
C M, the parties' neighbor, also testified on behalf of plaintiff that she had observed loving and affection interaction between plaintiff and her children; she knew both plaintiff and defendant for approximately four years and lived six houses away from the Bs; she first met the plaintiff while accompanied by her children and they eventually got together at the park with their children; during these visits to the park, and also during play dates, she observed the plaintiff to be a very loving mom who was devoted to her children; plaintiff did a great deal of cooking for her children, kisses their "boo boos" and hugs them; sometime in the year 2003, plaintiff mentioned to the witness that the defendant had physically abused her when she was pregnant; in or about April 2003, she observed that P appeared to be angry and withdrawn and just didn't seem to be the same child, but in the past six to eight months he seemed to be better; the plaintiff told her she wanted to get help for P, but that the defendant wouldn't permit it.
The plaintiff called Dr. Tripodi, M.D. as a witness. After refreshing his recollection [*8]by reviewing plaintiff's medical records, he testified that he saw her on December 2, 2002 and observed bruising on her thigh and left hip; the plaintiff told him the defendant had inflicted these injuries; she was upset and crying and told him she was going to discuss the issue with her attorney; and he wrote a letter to plaintiff's referring doctor.
The defendant testified that he was involved in his children's lives; he assisted in bathing and feeding them; took them to Central Park, Zoos, Great Adventure and Delaware River either by himself or with plaintiff and/or with his parents; he plays tennis and soccer with them, as well as being involved on weekends as a parent instructor for a Saturday Series program in the neighborhood, which the children enjoy very much. He emphasized differences in the parties' parenting styles, stating that plaintiff has always relied on physical punishment; he has a much stronger patience level for the children; does not strike them and has a way of communicating with them, which results in the children respecting and behaving appropriately around himself and his parents.
The defendant denied plaintiff's allegations that he was a controlling, abusive spouse. He denied hitting, slapping or ever laying a hand on plaintiff. He testified that he accepted employment in Kansas City with plaintiff's approval; the parties intended to move there without his parents; he signed a long term lease for a town house in Kansas City, but after visiting, plaintiff refused to move there; plaintiff's return to work after P's birth was a decision jointly made by them; plaintiff had ten different employers during the marriage, eight of whom were identified by defendant; defendant placed a binder and obtained an engineer's report on the Sound Beach house, intending to move there without his parents, but plaintiff did not want to move to the Sound Beach house and preferred to live with his parents as they assisted with the children; plaintiff on numerous occasions shoplifted in the presence of the children; in January 2000, plaintiff became obsessed with her appearance and losing weight even though defendant told her he was happy with her appearance; she bragged to him that she manipulated her doctor into prescribing pills intended to aid depression, which resulted in weight loss; she began staying out until between 1:00a.m. and 4:00a.m., leaving the light on in her bathroom and the door locked to fool the children into thinking she was at home; at times she did not return at home all night; on Thanksgiving weekend 2002, she went away without telling the defendant or the children; she returned home tan and told him she had gone to Florida with two men who were brothers; plaintiff began to exhibit mood swings in 2002; she was taking medication, stopped eating and lost a substantial amount of weight; she was drinking bottles of red wine by herself , as well as six cups of coffee a day; in 2002 she was drunk at least once a week; she became very physical with the children, screaming at them and hitting them for no reason; she generally hit them on the rear end, but slapped C in the face twice; she told him her physician had prescribed medication and she was drinking coffee to enable her to lose weight quickly; in November 2002, plaintiff had a vein stripping procedure performed on both legs; during the first four years of the marriage, he did not travel and participated in caring for P; plaintiff elected not to spend time with the children pursuant to the February 8, 2005 stipulation, but instead left them in his or his parents' care at least one day each week that she was scheduled to spend with them; when plaintiff is away for the day or weekend, she does not provide a phone number and the defendant and the children cannot contact her. [*9]
The defendant conceded he traveled extensively at times during the marriage; that he spent eight months in Kansas City from Monday through Thursday; he traveled extensively overseas and throughout the United States for C G; he was in Asia for a month and several weeks at a time with respect to jobs in the United States; he stated at his deposition that he was in Asia for two to three months; more than five years ago, he vacationed in Poland and Sweden with his parents and without the plaintiff; and he took P to Denmark, Sweden and Poland on a two week trip in 2002 without the plaintiff. He pointed out that during the marriage, Plaintiff traveled to Poland several times without him and traveled to Chicago after the commencement of the action. In addition to vacations mentioned by plaintiff, he recalled vacationing with her in St. Thomas and/or Cancun in 2002.
When called as a witness on plaintiff's direct case the defendant testified, with regard to financial issues as follows: at the time of the marriage plaintiff owned no assets and he owned only some jewelry; at the time of the marriage he had student loans of $30,000.00 to $40,000.00 and credit card debt of $5000.00; he conceded that at his deposition he had stated he had premarital credit card debt of $25,000.00; he has used marital earnings to pay his premarital student loans and presently pays $450.00 a month; at the time of the commencement of the action he had stocks with Citibank; plaintiff's exhibits 18 and 19 in evidence show said stock was worth approximately $8700.00 in February 2004, and he sold $5957.23 of said stock in February 2004; as of June 22, 2003, he had $12,997.62 on deposit in his Citibank checking account as confirmed by plaintiff's exhibit 21 in evidence; he purchased a 1947 Ford in Ohio in 2002 for $7500.00 and transferred title to his father in June 2003; the $41,058.12 deposited into his Citibank checking account on November 20, 2001 as confirmed by plaintiff's exhibit 25, was the return of a down payment on a prior real estate transaction; his checking account statements from April 18, 2001 through December 18, 2001, plaintiff's exhibit 29 in evidence, indicate he paid mortgage payments of $3600.00 a month; plaintiff's exhibit 30 in evidence show similar payments for 2002; plaintiff's exhibit 33 in evidence shows that defendant's 401k with Cap G was worth $49,664.00 in January 1, 2003; that between January 1, 2003 and September 30, 2003, defendant contributed $6097.00 and his employer contributed $10, 741.00 to the 401k; that defendant took a loan against his 401k of $21,900.00 on March 27, 2003; defendant acknowledged he took a $4000.00 cash advance on his Chase account in June 2003 as shown by plaintiff's exhibit 46 in evidence; defendant acknowledged he took cash advances of $3400.00 posted on May 9, 2002; $3400.00 on May 14, 2002, $200.00 on May 16, 2002 and $3400.00 on August 7, 2002 on his Citi Gold card account as shown by plaintiff's exhibits 47 and 48 in evidence; defendant acknowledged he took cash advances of $650.00, $2500.00 and $250.00 in June 2003 as shown by plaintiff's exhibit 50 in evidence, but did not recall cash advances of $500.00 and $3400.00 in January 2003 from said account as shown by plaintiff's exhibit 49 in evidence; he conceded accumulating substantial frequent flyer miles during the marriage; after he lost his job in December 2004, he utilized 425,000 miles to buy a laptop computer; at the time of the commencement of the action, the parties only owned one car, the Dodge Caravan, registered in the defendant's name; the defendant testified that he did not take mortgage interest or real estate tax deductions for the marital residence on his 2002 return, although plaintiff's exhibit 30 in evidence, defendant's checking account records, show over $40,000.00 in payments on the mortgage in that year. [*10]
When questioned by his own attorney, the defendant offered the following testimony with regard to financial issues: he attended school for two years, part time at night, to obtain his MBA; the cost of $24,000.00 was paid with student loans; said MBA was not a requirement of his employment as a computer programmer; both he and plaintiff worked while he attended school; he had premarital credit card debt of $10,000.00; that from the time of the marriage until the commencement of the action, the plaintiff utilized his checking account to write checks by signing his name and used his ATM card for cash withdrawals; his father gave him $7500.00 for the 1947 Ford automobile; $18,000.00 of the mortgage refinancing proceeds were used for home improvement materials for work done by his father; $20,000.00 went toward refinance closing costs and the balance paid off credit cards in his and his parents' names; he paid 50% of the mortgage and his parents paid the other 50% by giving him checks which he deposited into his checking account, including $9000.00 deposits in March 2001 and on June 19, 2001; $7000.00 on July 11, 2001; $5000.00 on August 6,2001; $2000.00 on September 4, 2001; September 7, 2001; and November 21, 2001; $1500.00 on November 26, 2001 and December 26, 2001; some portion of said deposits were for mortgage payments and the balance was to pay for charges his mother made using his American Express card; he took all the tax and interest deductions on the marital residence in 2001; his parents took the full deductions in 2002; he took 50% of said deductions in 2003; he had premarital credit card debt of $5,000.00 to $10,000.00 on the date of the parties' first marriage ceremony in April 1994 and $20,000.00 to $25,000.00 on the date of the second ceremony in September 1994; the down payment for the marital residence were funds received by his mother as an inheritance; during part of 2002 and most of 2004, he worked from home, eight hours, usually at night; after losing his job, he gave his resume to a placement agency and scheduled interviews with MGM and IBM; in March 2005, the plaintiff started using a silver Mercedes which she parked across the street from the marital residence; she also uses a van.
The defendant's mother, H B, testified that she had a good relationship with plaintiff from 1994 to 2001; their relationship was like "mother-daughter;" the parties' children have resided with the witness and her husband and the parties since their births; they are nice, calm, obedient, intelligent children; she and her husband have assisted in child care since the children were born.
According to H B, in the Fall of 2001, received a phone call from plaintiff who was crying because she got caught stealing at Lord & Taylors; the witness paid the store over $800.00 and no charges were pressed against plaintiff; the witness did not tell the defendant about the incident at plaintiff's request; plaintiff confessed to a history of changing price tags and shoplifting from stores including Rainview Pharmacy and Macy's; there were numerous occasions plaintiff would shoplift accompanied by the children, at either Macy's or the other stores in the neighborhood; plaintiff bragged to her and was proud of being able to manipulate the people working at the stores, and explained that she was able to change price tags on items, thereby paying a great deal less for an item worth a great deal more; despite her attempts to persuade plaintiff to stop behaving in such an inappropriate manner, plaintiff ignored her advice, claiming that the store owners were "stupid."
In 2002 the witness observed that plaintiff had become moody and lost weight; [*11]plaintiff would yell at the children and hit them; the witness would watch the children two or three times a week until 9:00 or 10:00p.m. so plaintiff could have time to go out and relax with friends; plaintiff would drink a lot of wine, including drinking wine out of a coffee cup while she fed the children; plaintiff was taking pills and laxatives to lose weight; plaintiff began moving things around the house and rearranging furniture without having any discussions with either defendant and/or the witness.
In the Fall of 2002, plaintiff had cosmetic surgery on both legs; the witness cared for her during her recuperation and observed "bad bruises that stayed for a long time" resulting from the surgery; the witness drove plaintiff to an attorney's office in February 2003 at plaintiff's request; the witness came to believe that plaintiff was conducting an adulterous affair based on the plaintiff's conduct and appearance, causing the witness to hire a private investigator in February 2003; in mid-March 2003, the witness' husband installed a video camera in the livingroom of the marital residence; several days later, the witness viewed a video of plaintiff and a man engaged in sexual relations; the tape was first given to the defendant in May 2003.
On May 1, 2003, the witness came home and went upstairs to the children's bedroom; she found the door to their room locked; she went downstairs and saw water running down the ceiling; her husband broke the lock on the door of the children's bedroom and forced the door open; P and C were in an overflowing bathtub and plaintiff was on the phone in an adjoining room; plaintiff began yelling at P saying his jumping was causing water to spill over the tub; P began to cry; at 7:00p.m. the next day the witness attempted to take plaintiff to Dr. Luciano because plaintiff was experiencing dizziness; his office was closed so she took her to the hospital and stayed with her until 11:00p.m.; the defendant was in Washington, D.C. at the time; plaintiff called her from South Oaks Hospital, where she had been transferred from St. Francis, and was extremely angry at her, rude and abrasive.
The witness testified that she has observed plaintiff hit the children "hard," sometimes a couple of days in a row, leaving "marks" on the children; plaintiff had previously advised the witness years ago, prior to plaintiff having children, that she had been fired for hitting a child while she was babysitting in Manhattan; the witness has observed her son having discussions with the children, using communication to discipline them; plaintiff has a low tolerance for frustration, and when the children act up and/or behave in a manner which is not consistent with the way plaintiff wants them to behave, she lashes out, yells and screams at them, and at times hits them; plaintiff would get angry at her and say harsh things to her without justification, such as on a recent occasion plaintiff stated "one day my kids will call you a fucking stranger;" in the middle of January 2003, plaintiff left the children in the witness' care despite the fact that V was running a high fever; plaintiff returned home at midnight with her faced "messed up."
With regard to financial issues, H B testified that she received a $60,000.00 inheritance; she utilized $44,000.00 as a down payment to purchase the residence in M; she loaned the parties $9000.00 in 1999 so they could buy their own house; she told them they could live in the M house until they had enough money to buy their own house; she paid closing costs of $13,000.00; the defendant's name was put on the deed because she could not obtain a [*12]mortgage without listing his income on the mortgage application; she worked part time in 2003, but hasn't worked since July 31, 2003; she gave the defendant $6000.00 in 2001 to buy a car; she maintained a checking account in 2001, but did not write checks to the mortgagee; she pays 50% of the mortgage expense.
The forensic psychological report prepared by Dr. Peter J. Favaro was stipulated into evidence. Dr. Favaro testified that each party completed various questionnaires and an objective personality test (MMPI-2); interviews were conducted with the parties, the paternal grandparents and the children, and data was collected from various sources including teachers and physicians. With regard to the plaintiff, Dr Favaro stated that she gave inaccurate presentations on more than one occasion; she denied engaging in extramarital sexual relations until confronted with the existence of a videotape; she denied engaging in sexual relations while the children were at home; after learning of the videotape, plaintiff stated she had locked the children in a room with a deadbolt so they wouldn't discover her having sex; plaintiff told the witness that she never intended to steal, but that the incident at Lord & Taylors had been an "accident;" plaintiff denied drug or alcohol abuse, but admitted that at times she has had a glass of wine and admitted being drunk on one occasion; plaintiff advised the witness that the defendant had hit or humiliated her at least 10 times during the marriage; plaintiff was "well aware" that the establishment of domestic violence by the defendant would disqualify him as a custodial parent.
Dr. Favaro's report states that the MMPI-2, a computer-scored test did not form the basis of his opinion, but was useful in describing the personality and character of the parties; "from a strictly clinical point of view," the plaintiff's test results are a sign of potentially extreme personality and/or character disorder, borderline personality, criminal behavior and antisocial personality; a person not concerned about violating rules or social norms, who is opportunistic, manipulative, self-serving.
After reviewing the South Oaks Hospital records, in evidence, Dr. Favaro stated that said records revealed that plaintiff suffered from depression from the Spring of 2002 to the Spring of 2003; that she attempted suicide by taking ten pills in April 2003; she later reported taking only two pills; on about three occasions she consumed an entire bottle of wine; and was diagnosed with major depressive disorder.
Dr. Favaro found that the defendant did not present outwardly with the same types of emotional stability problems presented by plaintiff. The defendant presented as angry, frustrated and disappointed over not being taken seriously that his children would be in jeopardy if left in plaintiff's care. The witness detailed the defendant's efforts to amass and present "proof" of plaintiff's shortcoming. Regarding the MMPI-2 test results, Dr. Favaro's report sets forth that defendant's score indicated he was emotionally-over-reactive, but that this is a common score found in matrimonial litigants.
Dr. Favaro recognized that it was not his role to assess the credibility of the parties. He opined that plaintiff had serious adjustment problems; had committed serious transgressions in parenting judgment; had withheld a good deal of information; could be extremely mentally unstable and unable to meet the children's needs. He further opined that if her behavior was a [*13]misguided response to domestic violence, she should not be disqualified as a custodial parent. If, in fact, the court determined that plaintiff's allegations of domestic violence were true, the defendant should be disqualified from contact with the children, except for supervised visitation, until he completed a course on anger management. Dr. Favaro noted that the defendant has the resource of extended family, while plaintiff's family lives out of this country. He concluded that unless plaintiff's allegations of domestic violence were substantiated, plaintiff's assessed behavior is "much more significant for personality and character disorder than the defendant's."
The wife offered the testimony of William H. Kaplan, MD, a psychiatrist, qualified by the Court as an expert in the area of forensic psychiatry regarding matters related to custody, visitation and domestic violence. With regard to domestic violence, Dr. Kaplan opined: "...the impact on the victim is pervasive and devastating, and it is a very serious matter which should be given great weight in a custody matter." He testified that with a reasonable degree of psychiatric certainty, that plaintiff was the victim of domestic violence, both physical and emotional, and that her conduct was explainable within the context of such abuse; the conduct included what occurred during both episodic and quiescent periods; the individual who is the perpetrator of the violence should not be awarded custody; plaintiff told him of instances of physical abuse on the part of her husband, including an instance on their honeymoon and also when she was pregnant with P; the plaintiff described a pattern of domestic violence that included intimidation, control and manipulation and how she felt she had no economic power to do anything; the plaintiff also told him she felt degraded and totally dependent on her husband, unable to make it on her own and that the only way she could hold on to her children was to accept things as they were; plaintiff expressed the full gambit of emotions including shame and humiliation and described her as being ambivalent - she loved her husband and excused his conduct towards her as his being under stress. Dr. Kaplan concluded that plaintiff's allegations were truthful and that the plaintiff fit the classic pattern of spouse abuse; her failure to make any complaint or, in fact, her failure to impart to anyone the circumstances of the alleged physical abuse she had been subjected to, until after the passage of many years, is a common occurrence in spousal abuse cases, and is part of the "battered wife syndrome;" the embarrassment and fears and, at times, the belief that it will not happen again is all part of the syndrome; the plaintiff's conduct in stealing merchandise from a department store and engaging in an extra-marital liaison in the marital home were a cry for help by a battered spouse.
The plaintiff called David Gressen,of Klein, Liebman & Gressen, the court appointed neutral forensic accountant as a witness. He testified that he had valued the defendant's MBA by comparing his present actual earnings of approximately $150,000.00 a year with a baseline of $90,000.00 representing the earning Cacity of a computer programmer with a bachelor's degree. Utilizing this methodology, Mr. Gressen calculated the present value of defendant's MBA to be worth $651,000.00 as of the date of the commencement of the action. He acknowledged that he had applied the statistical earnings of an average computer programmer, rather than an IT consultant implementing oracle and people software. He also acknowledged that the defendant told him his MBA was irrelevant to his employment with C G, and that his peer co-employees did not possess MBA degrees. In response to inquiry by the Court, Mr. Gressen stated that he could not assign a value of enhanced earnings to an MBA degree where the degree holder was unemployed or not utilizing the degree to earn income.
Findings of Fact and Conclusions of Law
Custody
Each party seeks sole legal and physical custody of the children. The plaintiff attempted at trial to portray herself as a loving and devoted parent, who has been the primary caretaker, and enjoys a close and constructive relationship with the children. The testimony elicited during the course of the trial did establish that she has historically been the primary care giver for the children. Trial testimony, however, also revealed that she has repeatedly exercised profoundly poor judgment, including shoplifting from a department store at a time when she was accompanied by the children, engaging in a sexual liaison at the marital abode while the children were in the home; leaving the parties' sons in a bathtub without proper supervision; and meeting with a paramour in the presence of the children. The plaintiff contends, however, that she has been the victim of abuse by the defendant throughout the marriage; that her inappropriate behavior is the result of such abuse; that custody of the children should not be awarded to a perpetrator of domestic violence; and that the defendant has been an absent parent, largely uninvolved in the children's upbringing.
The defendant emphasized both the plaintiff's inappropriate conduct and poor judgment and his own involvement in his children's lives. In explaining why this Court should award him custody, the defendant offered that he will continue to provide the children with stability, moral values, emotional and intellectual growth, encourage a warm relationship and contact with their mother and he stated that he would keep the children from harm's way.
Confronted with the monumental task of determining which parent is to be awarded primary custody, a court must initially ferret out the credible testimony and make findings of fact on which the ultimate determination can be supported. Notwithstanding the effort that goes into the process, the result, in reality, is often nothing more or less than the Court's forecast or best estimate of future events, specifically as to which parent would be the superior custodial care giver, able to provide a more stable and safer environment, both physically and emotionally.
For any court considering questions of child custody, the standard by which we are guided is to make every effort to determine "what is for the best interest of the child, and what will best promote its welfare and happiness" (see Eschbach v. Eschbach, 56 NY2d 167,quoting DRL 70). In determining the best interests of the child, the Court must review the totality of the circumstances presented (see Friederwitzer v. Friederwitzer, 55 NY2d 89; Hom v. Hom, 249 AD2d 447). In making a best interests determination, the factors to be considered include the quality of the home environment and the parental guidance provided for the child; the ability of each parent to provide for the child's emotional and intellectual development; the financial status and ability of each parent to provide for the child; the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent (see Eschbach v. Eschbach, supra; Matter of Ring v. Ring, 15 AD3d 406; Miller v. Pipia, 297 AD2d 362). In addition, the Courts may consider the length of time of the present custody arrangement (see Fanelli v. Fanelli, 215 AD2d 718; Matter of Garvin v. Garvin, 176 [*14]AD2d 318, mot lv app den 79 NY2d 752 ) and which parent is the more likely to assure meaningful contact between the child and the non-custodial parent (see Matter of Green v. Gordon, 7 AD3d 528; Matter of Dobbins v. Vartabedian, 304 AD2d 665, mot lv app den 100 NY2d 506). In making its determination on the issue of custody, the Court is to evaluate the testimony, credibility, character, temperament, demeanor and sincerity of the parties and other witnesses (see Matter of Rory H. v. Mary M., 13 AD3d 373; Matter of Dobbins v. Vartabedian, supra; Matter of McLaren v. Heuthe, 296 AD2d 500).
Further DRL 240[1][a] provides in pertinent part: "Where either party to an action concerning custody of or a right to visitation with a child alleges in a sworn petition or complaint or sworn answer, cross-petition, counterclaim or other sworn responsive pleading that the other party has committed an act of domestic violence against the party making the allegation or a family or household member of either party, as such family or household member is defined in article eight of the family court act, and such allegations are proven by a preponderance of the evidence, the Court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the Court deems relevant in making a direction pursuant to this section." (McKinney's Con. Laws of New York, Book 14, Domestic Relations Law ยง240 [l] [a]).
Has the defendant perpetrated domestic violence against the plaintiff? Has the plaintiff fabricated allegations of domestic violence? The determination of these issues, although determinative, is pivotal in deciding the custody issue. Both Dr. Favaro and Dr. Kaplan essentially agreed that domestic violence was a very serious matter and should be given great weight above every other behavior in determining custody. However imperfect the process, the responsibility of deciding whether plaintiff has been the victim of domestic violence rests with the Court, which has painstakingly undertaken its obligation herein. In fulfilling its obligation, the Court has carefully evaluated the testimony of the neutral forensic evaluator and the forensic expert retained by the plaintiff.
Dr. Favaro did not make any assessment of the veracity of plaintiff's allegations of domestic violence. In his report, as well as in his trial testimony, Dr. Favaro detailed the results of the psychological test administered to the plaintiff-mother, which reflected elevated scores in combination on both the psychopathic deviate and paranoia/anger scales. This combination of elevated scores significantly correlated to sociopathic behavior and was a sign of potentially extreme personality and/or character disorder of the plaintiff. Dr. Favaro concluded that the plaintiff's combined elevated scores, associated with borderline personality, criminal behavior and antisocial actions, taken in combination with the interview data he collected from her and the substantiation of certain of the husband's allegations, tended to validate the hypothesis that the wife has severe social and character problems. Dr. Favaro's made reference to the plaintiff's former therapist's observation that the plaintiff presents as helpless and fragile, which can cause people to become very sympathetic to her self reports. According to Dr. Favaro, "these are the same qualities that an accomplished psychopathic personality hones with years of practice manipulating people," especially when dealing with someone who, like the plaintiff, is engaging and likeable. He added that if it were determined by the trier of facts that the plaintiff was physically and emotionally abused by the defendant, such finding would present an "alternative [*15]psychological explanation for behavior alleged to have been committed by A." Indeed, it was Dr. Favaro's opinion that the commission of domestic violence, "is the most severe form of parenting deficit and should be considered above every other form of behavior maladjustment."
Dr. Favaro also discussed, at length, what he perceived to be the potential character or psychological flaws of the defendant including concerns that, at times, the defendant "appears intense, obsessive and highly motivated to disrupt A' relationship with the children."
As previously noted, Dr. Kaplan did attempt an assessment of plaintiff's credibility. In stating his opinion, with a reasonable degree of psychiatric certainty, that plaintiff was the victim of domestic violence, Dr. Kaplan concluded that plaintiff's allegations were truthful and fit the classic pattern of spousal abuse.
The law guardian has opined the plaintiff's "....allegations of domestic violence....to be incredible, without substantive corroboration." In challenging plaintiff's credibility, the law guardian pointed out that Dr. Favaro reported that the plaintiff initially denied having an extramarital affair, but changed her story when confronted with the existence of a videotape. Similarly, the plaintiff was evasive and less than candid in her discussion of shoplifting with Dr. Favaro, as indicated by him in his report as follows: "I asked her to be very clear about whether she intended to steal from the store and she replied she did not, that she took the items completely by accident." However, when questioned by the Court as to whether or not she intended to steal, the witness testified that she did.
After an exhaustive review of the trial testimony and exhibits and the proceedings herein, the Court finds that the record is replete with instances where the plaintiff withheld and/or misrepresented information. Most telling, is the Court's finding that the plaintiff misled Dr. Tripodi in an effort to convince him that her bruises were the result of abuse, by advising him that she had been seen previously at Lenox Hill Hospital. It appears that the plaintiff went to Dr. Tripodi's office in December 2002, specifically for the purpose of documenting the bruises on her hip and thigh; and it further appears that the bruises were, in reality, the result of a vein stripping procedure. The Court notes that plaintiff's expert, Dr. Kaplan, relied to some extent on Dr. Tripodi's records in assessing plaintiff's credibility and forming his opinion.
Further, the Court finds the plaintiff's portrayal of herself, as a financial mendicant surviving only upon the good graces of the defendant, to be intentionally exaggerated. Plaintiff conceded at trial that she had the use of defendant's bank account and credit cards. In fact, plaintiff's exhibit 62 in evidence shows that she made thousands of dollars in charges for necessities such as groceries and drug store items as a signatory on the defendant's American Express charge card in December 2001.
Nevertheless, the plaintiff clearly was not treated as an equal or a partner by the defendant. She was excluded from ownership in the marital residence and, to a large degree, from participation in financial decisions. It was the defendant who orchestrated the plaintiff's filing for bankruptcy after saddling her with debt. The defendant's various claims that he often consulted with plaintiff concerning employment and other financial matters, do not ring true. [*16]
In view of his controlling nature, it is conceivable that his dominion over plaintiff may have risen to the level of emotional abuse, and it is not impossible that he physically abused plaintiff on one or more occasions. A Court, however, must deal in proof and not speculation, and the plaintiff has shown herself to be unworthy of belief. Further, the chronology of events in this case is telling. Plaintiff's first reports of domestic violence to neighbors and her resort to the Family Court, occur only after she became engaged in an extramarital affair. After careful and thorough consideration of all of the evidence, the Court is not convinced that plaintiff was the victim of domestic violence in the nature of physical abuse and further finds that she fabricated allegations of same in order to persuade the Court to award her custody of the parties' children.
Clearly, both parents have demonstrated substantial shortcomings in their ability to provide for the welfare of their children. In fact, the law guardian commented in his post-trial memorandum and summation that "...while professing their love and concerns for their children, both parties have not been beyond exploiting and manipulating the children to gain what they perceive as an 'advantage.' " He notes that, "In literally tugging the children between the upstairs of the marital residence, occupied by the mother, and the downstairs, occupied by the father and his parents, in competing for the children's physical presence as well as emotional control over them, the parties have already done incalculable damage to their children."
The plaintiff, who has historically been the children's primary caretaker, has clearly demonstrated that she cannot be trusted to safeguard the children and promote their best interests over her own needs and desires. The defendant, has shown himself to be a controlling individual who has not been primarily responsible for the care and upbringing of the children. It seems clear that neither party can be expected to willingly engage in fostering a healthy, loving relationship between the children and the other parent. Confronted with such conundrum, the Court has given in-depth thought to the comments of Dr. Favaro relative to his conjoint interview with the parties, as follows:
"The conjoint interview was significant in that one would have expected people who make allegations as severe as those made by A and D against one another would not be able to make it through an hour of conjoint interview. In fact, they were quite civilized toward one another. When they disagreed, they disagreed politely. When I asked them to stop talking they both stopped. D was particularly conscientious about not saying anything inflammatory, stopping himself and saying that he would talk to me about it in an individual interview. I had instructed both parties to answer questions I was posing directly and not go off on tangents that would lead to arguing and bickering in the session, and they both complied very well.
Despite the severity of the allegations, the manner in which both A and D conducted themselves in the individual interviews suggested they might do very well with an impartial third party helping them through their future disagreements after the case is tried or settled.
Another noteworthy facet about the conjoint interviews was that when it came down to discussing sharing time with the children, neither party had trouble acknowledging that both parents should have an equivalent amount of time with the children. While this was encouraging on one hand, it is always odd to hear people say this when one alleges the other is violent and [*17]aggressive; and the other claims their soon-to-be former partner is mentally unstable and out of control. This points to a disparity we often see between battling custody litigants - they want to 'win custody,' with horrible allegations, but at the same time, as long as they win, they don't seem to mind that the same person they claim is either violent or mentally ill, will be spending lots of time with the children."
Although neither party has specifically sought joint legal custody, the Court has considered same in view of Dr. Favaro's comments. Joint custody involves the sharing by the parents of responsibility for control over the upbringing of the children, and imposes upon the parents an obligation to behave in a mature, civilized and cooperative manner in carrying out the joint custody arrangement (see Braiman v. Braiman, 44 NY2d 584; Matter of Fowler v. Rivera, 296 AD2d 409; Matter of Fedun v. Fedun, 227 AD2d 688. Joint custody should not be imposed on parents who do not communicate (see Matter of Diana W. v. Jose X, 296 AD2d 614; Matter of Heintz v. Heintz, 275 AD2d 971; who are unwilling or unable to cooperate (see Bliss v. Ach, 56 NY2d 995; Amari v. Molloy, 293 AD2d 431; who are unwilling or unable to set aside their personal differences (see Webster v. Webster, 283 AD2d 732; Matter of Meres v. Botsch, 260 AD2d 757, and work together for the good of the children.
In the instant case, where the Court has found that the plaintiff has fabricated instances of physical violence against the defendant, and the defendant has historically exercised absolute control over the family's financial issues, it is highly unlikely that the parties will be able to act as equal co-parents and make constructive co-operative decisions regarding their children. Accordingly, the Court finds that joint legal custody is clearly inappropriate(see Matter of Fedun v. Fedun, 227 AD2d 688, supra; Juneau v. Juneau, 206 AD2d 647).
Finally, the Court notes the position of the law guardian on the ultimate issue of custody was expressed as follows: "Evaluating the requisite factors relevant to the best interests of P, Ch and V, including the ability of either parent to provide parental guidance, to provide for the children's intellectual and emotional development, to provide for the children's needs, and to foster a positive relationship with the non-custodial parent, it is respectfully submitted that the father would provide a more suitable, consistent, stable and safer environment both physically and emotionally for the children."
The plaintiff's fabrication of allegations of instances of physical domestic violence, viewed together with her repeated failure to put the children's needs above her own and her poor judgment and inappropriate conduct, clearly disqualify her from being the parent responsible for making decisions regarding the children's upbringing and welfare.
The defendant has not historically been the children's primary caretaker. He has, however, historically had child care assistance from his parents, who have resided with the children and cared for them since the children's births. The defendant has not persuaded the Court that he has customarily subjugated his own needs to the best interests of the children. Further, it is clear that throughout the marriage the defendant has exercised total dominion over the family's finances and has not viewed or treated the plaintiff as an equal partner in their marriage. Nevertheless, upon all the facts and circumstances set forth herein above, the Court [*18]finds that the best interests of the children will be served by awarding legal custody to the defendant.
Accordingly, the defendant is awarded legal custody of the children. The parties shall, however, have equal "parenting-time" with the children as will be addressed, in detail, herein below.
Neither parent shall take the children outside the United States without leave of Court or without the acknowledged and notarized written consent of the other parent. In the event either party removes a child of the marriage from the United States without a court order permitting same or the written, acknowledged and notarized consent of the other, the parent remaining in the United States shall be deemed to have been awarded sole legal and residential custody prior to said removal, such that the removal of the child or children from the United States shall constitute criminal custodial interference as defined by New York State and Federal Law.
Equitable Distribution
The plaintiff did not own any assets at the date of the marriage, except a master's degree, and as of the date of the commencement of the action, she did not own any assets, other than said degree, her clothing and personalty located in the marital residence. She did not have any debt at the time of the marriage or as of the date of the commencement of the action. She filed bankruptcy in 2002 discharging approximately $45,000.00 in marital debt.
The defendant owned some jewelry at the time of the marriage, and owed approximately $30,000.00 to $40,000.00 in student loans, as well as between $5000.00 and $25,000.00 in credit card debt. According to credible, unbiased testimony from Michael Daniec, the defendant also owned a house in Poland at the time of the marriage. The defendant's affidavit of net worth dated August 22, 2003, sets forth that he owed approximately $74,000.00 in credit card debt; $24,000.00 in student loans; $20,000.00 borrowed against his 401k.; and $43,000.00, he claims he borrowed from his mother in 1999/2000 for "investments." Said affidavit of net worth lists the following assets: cash and bank accounts of $1010.00; 1997 Caravan, purchased in 2001 for $6000.00, presently worth $2000.00; marital residence owned with his mother, purchased for $440,000.00, appraised as of the date of trial at $785,000.00; 401k worth $37,250.00 ( reduced by virtue of a loan of $20,000.00 taken in March 2003 and disbursed for living expenses;) household furnishings and computers worth a total of $1500.00; jewelry received as a gift from his grandfather worth $6000.00; and collectibles worth $1000.00.
The defendant contends that the Court should equitably apportion marital debt between the parties and further contends that any claim plaintiff may have to share in the [*19]defendant's 401k and the marital residence should be offset by her liability for marital debt. He also asserts that his MBA has no value and should not be distributed by the Court as a marital asset and that he only has a 50% interest in the marital residence.
The plaintiff contends that the marital estate as of the date of the commencement of the action was comprised of the following assets:
1. Bank accounts of $20,204.77, to wit: Citibank account XXXXX840 checking $9945.14 (including a state tax refund of $2764.00 and a federal refund of $560.00); savings $36.36; stocks $3015.12; and Citibank XXXXX981 checking $7187.03; savings $20.12. Account XXXXX981 shows the sum of $20,000.00 transferred to savings on April 22, 2003 and the sum of $20,300.00 transferred back from savings to checking the next day. Between April 17, 2003 and May 18, 2003 the sum of $42,307.00 was withdrawn from this account and $28,716.00 was deposited into the account.
2. Securities liquidated in February 2004 of $5927.73.
3. Defendant's C G 401k valued at $47,574.37 as of September 30, 2003, plus the then outstanding loan of $20,247.14, for a total value of $67,821.51.
4. Federal income tax refund attributable to the income earned by the defendant in 2003 prior to the commencement of the action and paid to him subsequent to the commencement of $3505.50. Plaintiff claims a 2002 federal tax refunds of $560.00, but said sum was deposited in defendant's Citibank account as referenced above.
5. The marital residence located in M appraised at $785,000.00 and encumbered by a mortgage of $475,000.00. Plaintiff contends that 100% of the equity in said premises is a marital asset; that the defendant unilaterally refinanced the premises in 2002, reduced the equity in the premises by $79,000.00, and failed to account for the disbursement of refinance proceeds; that she is entitled to 50% of the present equity of $310,000.00 plus 50% of the reduction in equity. She contends that her 50% interest in the marital residence is worth $194,500.00.
6. The 1947 Ford automobile purchased by the defendant in Ohio in 2002 and transferred to defendant's father.
7. Plaintiff seeks 50% of Marriott rewards points (approximately 370,000) and frequent flyer miles (approximately 70,000 miles) accumulated by the defendant as of the date of the commencement of the action.
8. Plaintiff seeks an award of 50% of the value of the defendant's MBA. She suggests that, at the very least, his MBA should be valued at 50% of the value assigned by the expert and that she should be awarded 50% of that reduced value. She concedes that the defendant was unemployed as of the date of the trial, but points out that his MBA was listed on his resume.
9. Plaintiff contends that in 2001, 2002 and 2003 the defendant earned over $60,000.00 each year in unaccounted for income net of taxes and expenses listed on his affidavit of net worth. She seeks a credit for 50% of said sum. The court notes that 50% of defendant's 2003 income was earned subsequent to the commencement of the action.
10. Plaintiff calculates that at the rate, on average, of $450.00 a month, the defendant liquidated premarital student loans of $47,700.00 during the 108 months of the parties' marriage. She seeks a credit for 50% of this sum, as well as 50% of $5000.00 in premarital credit card debt admitted by the defendant, which she contends was paid off with marital income.
The defendant's account of his financial circumstances during the marriage is [*20]unreliable. This is a case where "two plus two does not seem to equal four." The defendant earned $90,000.00 in 1999 and $125,000.00 in 2000. The plaintiff worked until in or about May 1999 when C was born, earning $50,000.00 a year. During this time, the parties and their children lived in an apartment with the defendant's parents and shared expenses, yet according to the defendant, the parties had no savings when the marital residence was purchased in February 2001, and his mother provided 100% of the down payment and closing costs. What happened to the parties' 1999 and 2000 income? The defendant insists that he only pays 50% of the mortgage on the marital residence and accordingly lists only approximately $46,000.00 a year in annual expenses for the parties and their children. He earned $145,831.00 in 2001; $142,495.00 in 2002 and $146,379.00 in 2003.
The defendant increased the mortgage on the marital residence in 2002 by $79,000.00 and offered no accounting documenting the disbursement of the proceeds. The parties acquired debt of $45,000.00 in the plaintiff's name during the marriage and approximately $74,000.00 in claimed credit card debt in the defendant's name. The defendant alleges that he owes his parents $43,000.00 borrowed in 1999/2000 for "investments." In March 2003, the defendant took a 401k loan of $20,900.00. In total, the defendant contends that the parties acquired $261,900.00 in debt during the marriage, exclusive of his marital student loans of $24,000.00 ($79,000.00 + $45,000.00 + $74,000.00 + $43,000.00 + $20,900.00 = $261,900.00).
Except for the fact that the parties elected to take numerous trips, it appears that throughout the course of the marriage, their income substantially exceeded their living expenses and yet they incurred substantial debt. Nothing in the trial record clarifies how the parties' income and the borrowed funds were disbursed. What happened to the defendant's 2001, 2002 and 2003 income in excess of expenses and the substantial funds borrowed by refinancing the marital residence and incurring credit card debt? One possible explanation is that the defendant sent significant sums out of the country to renovate his house in Poland. Another possible explanation is that the down payment paid from the defendant's checking account for the purchase of the marital residence was, in fact, marital funds, and, as evidenced by defendant's bank records, in evidence, the defendant paid not 50%, but 100% of the carrying charges on the marital residence. The Court notes that the defendant did testify that some portion of the mortgage refinance proceeds were used to pay credit card debt in his name and his mother's name, but he did not offer any detail as to the amount applied toward this purpose, nor did he provide any documentation to support this claim.
A deed for the marital residence was not offered into evidence. Although the defendant's mother testified that she maintained a checking account, neither the defendant nor his mother offered a single cancelled check to establish that funds deposited into the defendant's checking account came from his mother. Further, not a single document was offered to demonstrate that defendant's parents made any financial contribution toward the purchase or maintenance of the marital residence.
In 2001, the year the marital residence was purchased, the parties took the full deductions, in excess of $31,000.00, for real estate taxes and mortgage interest on the marital [*21]residence. The parties' 2002 return shows that they did not take any deductions, and on the defendant's 2003 return he took only 50% of said deductions. The defendant's contention that said tax returns demonstrate that his mother paid 50% of the mortgage payments is unpersuasive. The Court notes that the video tape of the plaintiff engaging in sexual relations was made in March 2003 and the defendant took a $20,900.00 pension loan that same month. The parties' 2002 tax return, filed in April 2003, substantially increased the parties' tax liability and deprived the plaintiff of her share of an additional refund that would have been received if the parties' had deducted real estate taxes and mortgage interest. The Court finds the defendant's and his mother's statements that defendant had no knowledge of the videotape until May 2003 to be unworthy of belief and that the parties' 2002 and the defendant's 2003 tax returns were prepared by the defendant to deprive plaintiff of a greater 2002 refund and to support his contention that his mother is the legal and equitable owner of a 50% interest in the marital residence. The Court notes further that the defendant did not offer his parents' tax returns in evidence.
The defendant's mother is not a party to this action and accordingly, the judgment herein cannot effect her right, title and interest, if any, in the marital residence. Nevertheless, based upon the lack of proof that the defendant's mother has either a legal or equitable interest in the marital residence, the Court finds that the plaintiff's interest in said premises is valued at $194,500,00 (see, Bartha v Bartha, 15 AD3d 111). (The marital residence located in Manhasset appraised at $785,000.00 and encumbered by a mortgage of $475,000.00. The defendant unilaterally refinanced the premises in 2002, and thereby reduced the equity in the premises by $79,000.00, and failed to account for the disbursement of refinance proceeds. In view of the parties' respective contributions to the marriage, the Court finds that the plaintiff is entitled to 50% of the present equity of $310,000.00 plus 50% of the reduction in equity or $194,500.00 [$310,000.00 + $79,000.00 = $$389,000.00 divided by 2 = $194,500.00]).
Said determination is based upon a finding that the defendant utilized marital funds to purchase the marital residence and pay 100% of the carrying charges. As this finding accounts for the disbursement of marital income earned between 1999 and the commencement of the action in 2003, the plaintiff will not be awarded a credit for "unaccounted for income" as demanded in her summation.
The plaintiff is entitled to 50% of the value of the 1947 Ford transferred to the defendant's father, to wit: $3750.00. The defendant shall transfer title to the 1997 Caravan to the plaintiff. He shall retain sole ownership of his rewards points and frequent flyer miles.
The plaintiff is awarded $33,910.75 of the defendant's 401k. She is entitled to any passive appreciation and her award shall be diminished by any passive depreciation on said sum between June 10, 2003 and the date said funds are transferred into her name. Said transfer shall be accomplished by means of this order, or, if necessary by a domestic relations order to be prepared by the plaintiff's attorney.
The plaintiff is awarded 50% of stocks worth $3015.12; savings of $36.36; savings of $20.12 and stocks liquidated in February 2004 for the sum of $5927.73, or a total of: $4499.67. She is not awarded any portion of the funds on deposit in the defendant's checking [*22]account as said sums were required by defendant to pay the family's living expenses.
The plaintiff is awarded 25% of the 2003 income tax refund, to wit: $1752.75.
The defendant did not offer any explanation with regard to his motivation for attending school at night in 1998 to obtain an MBA, but clearly he did so with the expectation that said degree would enhance his ability to earn. Nevertheless, it is uncontroverted that subsequent to attaining said advanced degree, the defendant was employed exclusively in the computer field as a programmer.
The law is clear that in determining child support and maintenance, a court may impute income to a party who has voluntarily reduced his or her earning Cacity (see, Hickland v Hickland, 39 NY2d 1; Alfano v Alfano, 151 AD2d 530), or has hidden assets or refused to make them productive (see, Kay v Kay, 37 NY2d 632; Prill v Mandell, 237 AD2d 445). This Court holds analogously, that a party's unilateral and voluntary election not to utilize an advanced degree does not necessarily defeat his or her spouse's claim to equitable distribution of the enhanced earnings value thereof (see, Pino v Pino, 189 Misc 2d 331).
In the instant case, however, the defendant's MBA did not enhance the defendant's earnings, as the defendant's actual earnings in the computer field were equal to the enhanced earnings figure utilized by the expert, David Gressen, CPA to value defendant's MBA.
In valuing a recently attained advanced degree, an expert will generally calculate the commencement date present value of the difference in the degree holder's earning potential, over his or her lifetime, by comparing the statistical average earnings of persons in the appropriate geographical area who have attained such advanced degree and those who have attained only a bachelor's degree (see, O'Brien v O'Brien, 66 NY2d 576; McSparron v McSparron, 87 NY2d 275). Where the degree holder has utilized the degree for a significant period of time, his or her actual earnings are applied to the calculation in lieu of a statistical average (see, R.R. v P.R., 298 AD2d 169).
Here, the expert utilized the statistical average annual earnings of a computer programmer of $90,000.00 compared to the defendant's actual annual earnings of $150,000.00 and attributed the $60,000.00 annual increase to the defendant's attainment of an MBA degree. As the defendant's actual earnings are the result of his employment as a computer programmer, his baseline earnings (his ability to earn without an MBA) are, in fact, the same as his actual earnings of $150,000.00, rather than the statistical average of $90,000.00 relied upon by the expert. Absent proof that his unused MBA would statistically garner the defendant yearly earnings in excess of the $150,000.00 he earns programming computers, said MBA has not enhanced his ability to earn, and has no distributable value. (The Court notes that if the defendant had left the computer field after acquiring his MBA to pursue a career utilizing said degree, and if he thereby increased his earnings from $90,000.00 to $150,000.00 a year, his MBA would have, in fact, been valued at $651,000.00. As he elected to remain in the computer field, and as he was able to earn as much or more in that field as he would have if he had accepted employment utilizing his MBA, the MBA, in reality has no value in the context of [*23]"enhanced earnings").
To clarify said point, consider the well known physician or the several well known attorneys who have abandoned their degrees and become successful best selling authors earnings millions of dollars. While their degrees clearly have a statistical average value, their actual earnings, in an endeavor in which their degrees are not utilized, far exceed any statistical average or their historic actual income earned by utilizing their degrees. In such cases, as in the case herein, it would be inappropriate to award the non-degree holder spouse a distributive award for the value of an unused degree.
The plaintiff contends that although the defendant may not utilize his MBA in his employment as a computer programmer, said degree appeared on his resume and assisted him in obtaining employment. She suggests that an unused degree has value in that, where two job candidates have exactly equal qualifications except that one has an MBA, an employer will hire the degree holder. Her contention lacks merit.
The proposition that a degree is an asset subject to equitable distribution is grounded in the concept that the degree's value can be measured by increased earnings attributable to the attainment and utilization of the degree. While listing an advanced degree on a resume might assist one in obtaining employment in a field in which said degree is not required or applied, the person's earnings in such field do not constitute enhanced earnings that can be attributed to the attainment and utilization of the degree. For example, where a nurse is hired to manage a restaurant or nightclub, at a salary far exceeding her income as a nurse, her salary as a manager does not constitute enhanced earnings subject to equitable distribution, as such income is not attributable to her abandoned nursing degree, although the listing of said degree on her resume may have aided her in standing out, from an otherwise equally qualified candidate, for the manager's position.
As the plaintiff is not entitled to an award for the value of the defendant's unused MBA degree, the Court declines to apportion any liability to her for student loans incurred by the defendant in attaining said degree. The defendant testified that he incurred approximately $24,000.00 in student loans in attaining his MBA.
The defendant testified that he had $30,000.00 to $40,000.00 in premarital student loans. His net worth affidavit states that he owes student loans of $26,000.00 incurred in 1985. It is not relevant whether the outstanding student loans are premarital or marital, as the defendant is solely liable for the payment of both. He commenced the marriage with $40,000.00 in student loans, and testified that during the marriage, he incurred $24,000.00 in additional loans. His net worth affidavit states that at the time of the commencement of the action, he had only $26,000.00 in student loans. Accordingly, he satisfied $38,000.00 in student loans during the marriage utilizing marital funds ($40,000.00 in premarital loans + $24,000.00 in marital loans = $64,000.00 - $26,000.00 remaining outstanding as of the date of commencement = $38,000.00 liquidated during the marriage). The defendant shall be liable for 100% of the student loans of $26,000.00 set forth on his affidavit of net worth. Further, as the defendant satisfied or paid off $38,000.00 in student loans utilizing marital funds, the plaintiff is entitled to a credit in the sum [*24]of $19,000.00 (see, Markopoulos Markopoulos, 274 AD2d 457; Micha v Micha, 213 AD2d 956). The Court notes that additional marital funds may have been applied toward the payment of interest that accrued on the defendant's premarital and/or marital student loans, but the plaintiff offered no proof or proposed calculation of same, nor did she specifically demand compensation for interest in her summation.
The defendant failed to document the existence of claimed marital credit card debt of $74,000.00, other than listing same on his affidavits of net worth. A review of his various credit card statements and tax returns, in evidence, indicates that during the marriage, he utilized his personal credit cards to regularly charge substantial business expenses, including hotels, meals, airfare and car rentals. Although, he received full reimbursement from his employer for said expenses, he did not apply all of said reimbursement to pay his credit card charges, but instead carried large Bances on his charge cards, which accrued significant interest. Accordingly, the Court finds that much of the claimed marital credit card debt is comprised of business expenses, which the defendant elected not to pay, despite the fact that he received full reimbursement from his employer.
In view of his exclusive control of finances during the marriage, the tangled web of financial transactions made during the marriage including cash advances and Bance transfers historically made by him, and a finding that he did, in fact, utilize marital funds to renovate his separate property in Poland, the Court finds that 100% of the marital credit card liability should be apportioned to the defendant.
In summary, the plaintiff is awarded $33,910.75 of the defendant's 401k, title to and possession of the 1997 automobile, and the defendant is required to pay the plaintiff a distributive award of $223,502.42 (marital residence $194,500.00 + bank accounts and stocks $4499.67 + 1947 Ford $3750.00 + tax refund $1752.75 + credit for student loan payments $19,000.00 = $223,502.42). On October 22, 2004, plaintiff entered a money judgment against the defendant in the sum of $17,212.69 as and for outstanding interim counsel fees of $15,000.00 and pendente lite arrears of $1792.87 and interest thereon. Said judgment remained unsatisfied as of the date of trial and was assigned by plaintiff to the law firm of Giaimo & Vreeburg, LLP, her second counsel of record, discharged by her prior to trial. The plaintiff also assigned said law firm the right to an interim counsel fee of $950.00 awarded to her pursuant to an order dated August 18, 2004 for costs she incurred enforcing the pendente lite order. In addition, the Court has awarded the plaintiff's first attorney of record $10,000.00 in counsel fees and her trial attorney $20,000.00 in counsel fees herein below. Accordingly, the defendant owes the total sum of $271,665.11 ($223,502.42 [plaintiff] + $17,212.69, heretofore reduced to a money judgment upon which interest has accrued [Giamo & Vreeburg] + 950.00[Giamo & Vreeburg] + $10,000.00[Nicolosi & Nicolosi] + $20,000.00 [Slade & Newman]= $271,665.11). The defendant shall pay said sums within 180 days of the date of this decision and order. The plaintiff may continue to occupy the marital residence until 30 days after the defendant pays the sum of $271,665.11 in full, together with any interest that may have accrued on any money judgment(s).
The pendente lite order dated February 24, 2004 is continued until such time as [*25]plaintiff relocates away from the marital residence. The maintenance and child support provisions provided for herein below shall commence upon the plaintiff's vacatur from the marital residence.
The defendant shall transfer title to the Caravan to the plaintiff within ten days of her vacatur of the marital residence. Until such time, the pendente lite order shall govern the parties' rights and obligations vis a vis said automobile.
The plaintiff is awarded a money judgment against the defendant in the sum of $223,502.42 as and for the sum due for her distributive award. She may file said judgment in the office of the Nassau County Clerk forthwith, but interest shall not accrue and she may not execute thereon until the refinance or sale of the marital residence or the expiration of 180 days from the date hereof whichever occurs soonest. In the event the defendant fails to timely pay said distributive award, the plaintiff shall be entitled to interest on said distributive award from the date payment was due at the statutory rate. In the event the defendant elects to sell the marital residence prior to or after the date on which payment of $271,665.11 is due, plaintiff shall be provided a copy of the contract of sale within ten days of the execution thereof. She shall be afforded reasonable notice of the closing date. In the event the defendant paid the sum of $271,665.11, with interest from the date payment was due, at or before the closing, the plaintiff shall vacate the marital residence within 30 days of her receipt of payment or 72 hours of the date of closing whichever occurs sooner.
Parenting Time
Once the plaintiff relocates away from the marital residence, she and the defendant shall have equal parenting time with the children. The children shall spend one week with the plaintiff and one week with the defendant unless the parties agree to an alternative shared parenting schedule. In the event the defendant elects to remain in the marital residence, the children shall attend school in that district and the plaintiff shall obtain housing in a proximity to the marital residence such that the children can be transported to and from school generally in less than 20 minutes. In the event the defendant elects to sell the marital residence prior to the plaintiff's vacatur, each party shall relocate not more than a 20 minute ride from the marital residence, unless the parties agree to both relocate to a location where each shall obtain housing not more than a 20 minute ride from the children's schools. In the event the defendant sells the marital residence after the plaintiff has vacated the marital home and established a residence in compliance with the terms of this decision and order, he shall relocate not more than a 20 minute ride from the children's school, unless the parties agree otherwise and upon such agreement both relocate to premises not more than a 20 minute ride from the children's schools.
The parties shall alternate legal and religious holidays and school recess periods.
Maintenance
The defendant represented that he became unemployed in December 2004, although as part of a severance package, he would continue to receive the equivalent of his salary into [*26]March 2005. He further represented that he was attempting to obtain commensurate employment. The plaintiff voluntarily ceased employment as a receptionist for Coach Realty in order to prepare for the trial of the action. According, the Court must impute income to both parties.
The law is well settled that imputed income is determined, in part, upon a party's past earnings, actual earnings, Cacity to earn and educational background (see, Ellenbogen v Ellenbogen, 6 AD3d 1026; Bragar v Bragar, 277 AD2d 136; Matter of Bouchard v Bouchard, 263 Ad2d 714; Morrissey v Morrissey, 259 AD2d 472; Zwick v Zwick, 226 AD2d 734; Matter of Lutsic v Lutsic, 245 AD2d 637). A party who is involuntarily terminated from his or her employment is required to demonstrate that he or she made diligent efforts to seek employment commensurate with his or her qualifications and experience (see, D'Altilio v D'Altilio, 14 AD3d 701, Douglas v Douglas, 7 AD3d 481; Clarke v Clarke, 8 AD3d 272; Beard v Beard, 300 AD2d 268; Kefeli v Kefeli, 270 AD2d 490; Matter of Dallin v Dallin, 250 AD2d 847; Matter of Heverin v Sackel, 239 AD2d 418; Yepes v Fichera, supra; Matter of Davis v Davis, 197 AD2d 622).
Here, the plaintiff was earning $293.00 bi-weekly working part time. In 1999, she was earning $50,000.00 working in the travel industry for American Express. She speaks English and Polish and her resume indicates she has some proficiency in French. She is computer literate and has knowledge of certain computer programs keyed to the travel industry. The Court finds that the plaintiff has the present ability to earn $25,000.00 a year. In view of her work history, her education, and her other skills, the Court finds that she has the ability to resume full time employment earning $50,000.00 a year, with 24 months of the date of this decision and order.
The defendant was earning $90,000.00 in 1999. He earned approximately $150,000.00 in 2004. The Court imputes income to the defendant of $125,000.00 a year.
Plaintiff requires maintenance of $2000.00 a month from the time she vacates the marital residence until 24 months from the date of this decision and order. Accordingly, commencing on the date plaintiff vacates the marital residence, the defendant shall pay her maintenance of $2000.00 a month until the death of either party, the plaintiff's remarriage or the expiration of 24 months from the date of this decision and order whichever occurs soonest.
Child Support
The law is well settled that in cases of equally shared parenting time, the higher income spouse is to be deemed the non-custodial parent for purposes of calculating child support pursuant to CSSA (see, Bast v Rossoff, 91 NY2d 723; Baraby v Baraby, 250 AD2d 201).
Section 240 of the Domestic Relations Law of the State of New York sets forth the guidelines provided by the Child Support Standards Act (CSSA) which must be used in determining child support. The CSSA provides that child support shall be determined by multiplying the combined parental income of the parents, up to $80,000.00, by the appropriate [*27]percentage and then allocating the amount between the parents.
In 1995, the Court of Appeals in Cassano v Cassano,85 NY2d 649, established that the CSSA shifts the emphasis from "a Bancing of the expressed needs of the child and the income available to the parents after expenses" to "the total income available to the parents and the standard of living that should be shared with the child." With regard to combined parental income in excess of $80,000.00, the court has discretion to apply the statutory percentages of the CSSA, or to apply the factors contained in DRL 240(1-b)(f) or both.
Pursuant to DRL 240(1-b) child support is awarded as follows:
(a) The children of the marriage entitled to receive parental support are P born December 11, 1996; C born May 25, 199; and V born September 15, 2000.
(b) The income of the defendant, who is the non-custodial parent, net of FICA and Medicare taxes is imputed to be $117,600.00; net of maintenance $93,600.00.
(c) The income of the plaintiff, who is the custodial parent, net of FICA and Medicare taxes is imputed to be $23,100.00.
(d) The applicable child support percentage is 29%.
(e) Combined parental income is imputed to be $116,700.00.
(f) CSSA child support on the first $80,000.00 of combined parental income is $23,200.00 or $1933.33 a month. Combined parental income above $80,000.00 is $36,700.00 (116,700.00 - $80,000.00 = $36,700.00). Child support on the combined parental income in excess of $80,000.00 a year is $10,643.00 a year ( 29% of $36,700.00). Child support on total combined parental income is $33,843.00 a year ($23,200.00 + $10,643.00) or $2820.25 a month.
(g) The defendant's share of combined parental income is 80% and the plaintiff's share is 20%.
(h) The defendant's child support obligation on the first $80,000.00 of parental income is $18,560.00 a year or $1547.00 a month ($23,200.00 x 80% = $18,560.00). The defendant's child support obligation of the combined parental income over $80,000.00 is $8515.00 a year or $710.00 a month ($10,643.00 x 80% = $8515.00). The defendant's child support obligation on the total combined parental income is $27,074.00 a year or $2256.00 a month ($33,843.00 x 80% = $27,074.00).
(g) The parties' enjoyed a comfortable standard of living during the marriage. They resided in an affluent community and traveled extensively during the marriage. The defendant's ability to earn substantially exceeds the plaintiff's ability to earn. The defendant's parents reside in the marital residence, have the use and enjoyment thereof, and are, or should be making some financial contribution to the carrying charges and maintenance of the premises. In view of all the above and upon consideration of the reasonable needs of the children, the Court finds that it would be [*28]just and equitable to apply the statutory percentage to total combined parental income. Accordingly, upon the plaintiff's vacatur of the marital residence, the defendant shall pay the plaintiff child support of $2256.00 a month. Said award shall be adjusted upon the termination of maintenance to reflect the defendant's gross imputed income of $125,000.00 and the plaintiff's gross imputed income, at the time maintenance is scheduled to terminate, of $50,000.00. At the request of either party, payment shall be through the Nassau County Support Collection Unit.
Arrears
The pendente lite award herein provided for the interim needs of the plaintiff and the children commencing December 3, 2003 and the defendant was providing voluntary support between the commencement of the action and said date. The pendente lite order will continue until the plaintiff's vacatur of the marital residence. Accordingly, the maintenance and child support awarded herein is not retroactive.
Child Support Add Ons
Child Care Expenses
Pursuant to the provisions of DRL 240(1-b)(c)(4), the Court is to consider child care expenses. The parties do not incur child care expenses at the present time. As the defendant resides with his parents, it is not likely he will incur child care expenses in the future. The plaintiff shall also avail herself of any offer by the defendants' parents to provide child care in the future. In the event the defendant's parents are unable or unwilling to provide child care, the plaintiff shall pay 20% and the defendant shall pay 80% of child care expenses incurred by both parties to enable them to pursue employment and/or education.
Health Insurance
Defendant is directed to maintain medical, dental and hospital insurance coverage for the issue of the marriage commensurate with the coverage in effect as of December 1, 2004. He shall provide such coverage for the plaintiff until entry of a judgment of divorce. In addition, the defendant shall pay 80% and plaintiff shall pay 20% of all un-reimbursed and/or non-covered necessary medical, dental, orthodontic, optical and prescription expenses incurred on behalf of the issue of the marriage, including medically necessary psychological expenses. The plaintiff shall pay her own uncovered expenses.
Life Insurance
The defendant is directed to maintain life insurance coverage in the sum of $500,000.00, naming the defendant as trustee for the benefit of the children until the youngest is emancipated. [*29]
Attorney's Fees
The plaintiff was represented by three law firms during the course of the instant action. Plaintiff paid a retainer of $2000.00 to the law firm of Nicolosi & Nicolosi, LLP on or about May 27, 2003. During the course of said law firm's representation, the plaintiff was awarded an interim counsel fee of $15,000.00 to be paid by the defendant, in installments, on or before April 15, 2004. Said fee was not paid and was reduced to a money judgment entered October 22, 2004. The law firm of Nicolosi & Nicolosi, LLP billed the plaintiff $44,325.00 for 147.75 hours of out of court services at $300.00 an hour; $4500.00 for 15 hours of in court services at $300.00 an hour, and disbursements of $538.30, for a total of $49,363.30. As said law firm received only a retainer payment of $2000.00, there is a Bance due of $47,363.30.
The plaintiff retained the law firm of Giamo & Vreeburg, LLP. in or about December 2003. Plaintiff signed a retainer agreement obligating her to pay a retainer of $5000.00, but she did not make that or any other payment to said law firm, except for the sum of $1119.40 for disbursements. During the course of said firm's representation, the plaintiff was awarded $950.00 for legal fees incurred in motion practice. As of the date of trial, said sum had not been paid or reduced to a money judgment. The plaintiff assigned the money judgment entered on October 22, 2004, of $17,212.87, which included outstanding interim counsel fees of $15,000.00, awarded to her while she was represented by the Nicolosi & Nicolosi, LLP, to the law firm of Giamo & Vreeburg, LLP. She also assigned her entitlement to the interim award of $950.00 to said firm. The Giamo & Vreeburg law firm has billed plaintiff the sum of $33,300.00 for 111 hours of legal representation at $300.00 a hour.
The law firm of Slade & Newman, LLP was retained by the plaintiff on December 6, 2004. The plaintiff paid a retainer of $10,000.00 toward legal fees and $1400.00 toward disbursements. Said law firm has billed the plaintiff $104,295.84 for 257.92 hours of legal services and $10,629.49 for disbursements ( including $5000.00 for Dr.Kaplan's fees) for a total of $114,925.33, leaving a Bance due of $103,525.33. Counsel asserts that the issues at trial were legally complex and may "make new law in the Second Department." He points out that he received plaintiff's file from prior counsel only weeks before the trial and was required to devote substantial time to familiarizing himself with the work done by prior counsel.
The defendant points out that some portion of the fees charged by plaintiff's first attorney were for Family Court matters. He advises the Court that he has paid his attorney over $60,000.00 in counsel fees, including services rendered in Family Court matters, and still owes his attorney over $30,000.00. He asserts that a substantial portion of the legal fees incurred by both parties were necessitated by the plaintiff's fabrication of allegations of domestic violence and contends that he should not have to pay same. He also points out that he has been required by the Court to bear the following expenses: David Gressen, CPA - $5250.00; Dr. Favaro - $6750.00; law guardian fees $15,500.00; trial transcripts - $2700.00 and real estate appraisal - $450.00.
The Court of Appeals has held that a Court must consider the following factors in determining counsel fees: [*30]
...time and labor required, the difficulty of the questions
involved, and the skill required to handle the problems
presented; the lawyer's experience, ability and reputation;
the amount involved and benefit resulting to the client
from the services; the customary fee charged by the Bar
for similar services; the contingency or certainty of
compensation; the results obtained; and the responsibility
involved (see, Matter of Potts, 213 App. Div. 59, 62, affd.
241 NY 593; Code of Professional Responsibility EC 2-18;
Canons of Professional Ethics, canon 12; Ann., Attorney
Compensation - Amount 56 ALR 2d 13, 20 - 50; see, also
H. Cohen, History of English Bar and Attornatus to 1450,
p. 279 [1929])." (In re Lincoln Rochester Trust Co. v
Freeman, 34 NY2d 1, 9; see, also McCann v Guterl,
100 AD2d 577).
Based on (1) all of the evidence adduced at trial; (2) the findings as to the relevant and material factors set forth above; (3) the respective financial circumstances of the parties and the disparity in their earning Cacities; and (4) after considering the assets available to plaintiff to satisfy the counsel fees she has incurred, the Court awards her the sum of $30,000.00 inclusive of legal fees and disbursements in addition to the interim awards, heretofore referred to, of $15,000.00 and $950.00 (see, DeCabrera v Cabrera-Rosete, supra; DeBernardo v DeBernardo, 180 AD2d 500; Cotton v Cotton, 147 AD2d 436; Stern v Stern, 67 AD2d 253). The defendant shall pay said counsel fees within 180 days after the date of this order, as follows: the sum of $10,000.00 shall be paid to the law firm of Nicolosi & Nicolosi, LLP and the sum of $20,000.00 shall be paid to the law firm of Slade & Neuman, LLP. No portion of the $30,000.00 awarded herein shall be paid to the law firm of Giamo & Vreeburg, LLP as said firm has heretofore received the rights to over half their total billings of $33,300.00 by way of the assignments heretofore mentioned.
The law firm of Nicolosi & Nicolosi. LLP is awarded a money judgment against the defendant in the sum of $10,000.00. The law firm of Slade & Newman, LLP is awarded a money judgment against the defendant in the sum of $20,000.00. The law firm of Giamo & Vreeburg is awarded a money judgment against the defendant in the sum of $950.00. Said law firms may file said judgments in the office of the Nassau County Clerk forthwith, but interest shall not accrue and said law firms may not execute thereon until the refinance or sale of the marital residence or the expiration of 180 days from the date hereof whichever occurs soonest. In the event the defendant fails to timely pay said counsel fee awards, said law firms shall be entitled to interest on said awards from the date payment was due at the statutory rate.
The defendant is directed to afford reasonable notice of the date scheduled for closing of any mortgage refinance or sale of the marital residence to the three law firms that appeared as counsel of record for the plaintiff.
The defendant shall be liable for 100% for the fees charged by David Gressen, CPA; [*31]Dr. Favaro; and the law guardian. He shall also be liable for 100% of the cost incurred to appraise the marital residence.
The plaintiff shall submit a proposed Findings of Fact, a Judgment of Divorce, and all the requisite supporting papers to the Matrimonial Center Intake Office within 60 days of the date of this decision and order. Failure to do so may result in this action being deemed abandoned pursuant to 22 NYCRR 202.48. Notice of compliance with this order shall be forwarded to the undersigned Justice by facsimile to 516-571-0029.
Dated: October 13, 2005 E N T E R:
Mineola, NY
_________________________
Anthony J. Falanga, Justice
Supreme Court, Nassau County
B-custody
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