S.A. v K.F.

Annotate this Case
[*1] S.A. v K.F. 2009 NY Slip Op 50141(U) [22 Misc 3d 1115(A)] Decided on January 28, 2009 Supreme Court, Kings County Sunshine, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 28, 2009
Supreme Court, Kings County

S.A., Plaintiff,

against

K.F., Defendant.



XX/09



Steven Z. Mostofsky, Esq.

Attorney for Plaintiff

26 Court Street, Suite 700

Brooklyn, New York 11242

Joan L. McFarquhar, Esq.

Attorney for Defendant

105 Stevens Avenue, 4th Floor

Mt. Vernon, New York 10550

Jeffrey S. Sunshine, J.



Plaintiff commenced this matrimonial action on October 1, 2003.[FN1]

Findings of Fact

The parties were married in December 1972 in Brooklyn, NY.[FN2] The

husband is 80 years of age and the wife is 61 years of age. The parties do not have any [*2]children in common.

The husband is a high school graduate and has obtained two associate degrees. He was ordained as a rabbi in 1955. The wife has a Bachelors of Science in Education. She began her employment during the marriage in 1973 at a New York State agency where she is still employed. The husband was employed during the first 10 years of the marriage, but has been unemployed since, and instead has spent his time volunteering for different religious and civil rights organizations. His only income is from Social Security, though more recently he, reluctantly, accepted reparation payments as a Holocaust survivor, from Austria.

The wife contends she was diagnosed with lung cancer and asthma, as well as hypertension, acid reflux, and breathing problems for which she takes medications. The husband alleges he has emphysema, arthritis, gout, gastroenterology problems, and attention deficit disorder, and also takes medications for these conditions.

Final Order of Protection

A final order of protection was entered against the husband in Kings County Family Court on January 19, 2001 by the Hon. Nora Freeman, which directed, inter alia, that the husband be excluded from the marital residence and refrain from contacting the wife at her home and place of employment. The husband appealed and the Appellate Division modified the order, adding that there were "aggravating circumstances including violent and harassing behavior by the husband towards the wife which constitutes an immediate and ongoing danger to her;" [FN3] [citation omitted to protect the [*3]identity of the parties].

Grounds

On October 1, 2003, the wife commenced this action against the husband,

and filed a summons and verified complaint with proof of service thereof alleging that the husband's behavior towards her was cruel and inhuman, and pursuant to Domestic Relations Law section 170 [1].

In a decision dated March 15, 2005, summary judgment on the issue of divorce was granted by the Hon. Betsy Barros. That decision constitutes the law of the case and this court is bound to recognize it as such (see Doscher v. Doscher, 54 AD3d 890, 865 NYS2d 238, [2 Dept., 2008] [Supreme Court judge improperly overruled a court of coordinate jurisdiction.]). The signing of the judgment related thereto has been held in abeyance pending a hearing on jurisdiction and resolution of the Article 81 proceeding.

As stated above, the parties married in December 1972 in the State of New York. Both parties are over the age of 18, and have lived in New York State continuously for at least one year immediately before this action was started. The wife testified that she resided in Brooklyn, New York during August 2000 when she initially sought relief in Family Court, and continues to reside there. Furthermore, the cause of action arose in Brooklyn, New York and at all relevant times the parties have resided in Kings County including but not limited to the two (2) years preceding the commencement of the action. Therefore, this court has jurisdiction over the matter under Domestic Relations Law section 230 [2].

Standard of Living

The husband submitted a handwritten statement of net worth dated June

29, 2005, approximately three (3) years before the trial date. He failed to provide an updated statement of net worth, at the time of trial despite the wife's repeated requests, and contrary to the trial rules of this court as such the only insight given as to his recent [*4]financial status was from his testimony at trial.[FN4] While the amounts stated in his 2005 statement of net worth are not entirely inconsistent with what was stated at trial, the lack of documentation supporting the amounts claimed are troublesome in assessing the husband's current financial situation. Moreover, Domestic Relations Law section 236 requires disclosure by both parties of their respective financial status. These disclosures include pay stubs and state and federal tax returns. The husband included no such supporting documents, nor did he cooperate in the discovery process. Therefore, there only exists sparse information that this court can reference which are the amounts proffered by the husband in his trial testimony and the 2005 statement of net worth.

The amounts recorded pursuant to the husband's 2005 statement of net worth regarding the his monthly expenses are as follows: (1) rent $124.00; (2) utilities $140.00; (3) food $600.00; (4) clothing $30.00; (5) laundry $60.00; (6) unreimbursed medical $411.00; (7) household maintenance $110.00; (8) educational $102.00; (9) recreational $28.00; (10) barber $15.00; (11) beauty aides, cosmetics, drug items $15.00; (12) books, magazines, newspapers $30.00; (13) gifts $20.00; (14) charitable contributions $30.00; (15) transportation $38.00; and (16) loan payments $1,000.00. Accordingly, the total amount of his monthly expenses, according to this net worth statement, is estimated at $2,753.00.

At trial, the husband testified his monthly expenditures were as follows: (1) rent $160.00; (2) utilities $119.00; (3) food $400.00; (4) clothing $100.00; (5) laundry $120.00; (6) unreimbursed medical undetermined; (7) educational $42.00; (8) recreational $110.00; (9) barber $20.00; (10) beauty aides, cosmetics, drug items $60.00; and (11) charitable contributions $100.00. Accordingly, the husband's estimated monthly expenses, based on his testimony during direct examination, amounts to $1,231.00. There is a $1,532.00 difference in expenses between the 2005 statement of net worth and the husband's testimony at trial ($2,753.00-$1,231.00 = $1,532.00).

Pursuant to the 2005 statement of net worth, he estimated his monthly gross income as a total of $855.00: (1) dividends and interest $100.00; (2) social security $755.00. He also estimated his total assets as follows: (1) personal checking accounts $6,000.00; (2) joint savings account $63,170.44; and (3) security deposits $1,217.47, totaling $70,387.91. He noted that he has $12,000.00 in outstanding credit card debt to be paid in addition to his monthly expenses.

In his summation, the husband contends his only gross income is $835.00 each [*5]month from social security. He also testified that he receives $460.00 [FN5] each month from reparation payments from Austria [FN6], and has used $27,500.00 from lump sum amounts he has received from Austria to date to pay his attorney fees. Based on this testimony his monthly gross income is $1,295.00. During trial, he also testified regarding his total assets, stating that he has: (1) Safra Bank checking account $5,000.00; (2) Washington Mutual savings account $6,565.45; (3) Washington Mutual savings account $4,145.01; (4) Washington Mutual CD $15,000.00 (5) joint Safra Bank savings account with the wife $70,000.00; and (6) debts owed to him $17,000.00. Thus according to his trial testimony his total assets equal $117,710.46. The husband did note, however, that the Washington Mutual CD in the amount of $15,000.00 is being held by the husband for his nephew, as it is the remainder of amounts left by the nephew's father for the husband to give to his nephew. He also testified that he has $29,960.00 total in outstanding credit card debt, and owes a total of $6,000.00 in personal debts.

Pursuant to the wife's updated statement of net worth, dated April 4, 2008, her monthly expenses are as follows: (1) rent $1,287.00; (2) utilities $242.47; (3) food $588.30; (4) clothing $251.00; (5) laundry $135.00; (6) insurance $494.81;

(7) unreimbursed medical $566.60; (8) household maintenance $86.70; (9) household help of $50.00; (10) automotive $757.80; (11) recreational $484.73; (12) income taxes $2,831.25; (13) beauty parlor $148.80; (14) union and organization dues $44.42;

(15) beauty aides, cosmetics, drug items $55.00; (16) books, magazines, newspapers $62.70; (17) gifts $98.40; (18) charitable contribution $250.00; (19) transportation $76.00; (20) religious organization dues $33.00; and (21) unreimbursed business expenses $73.75. The wife's estimated total monthly expenses amount to $8,617.73.

Pursuant to the wife's written statement of net worth, dated April 4, 2008, the wife's monthly gross income is $3,404.40 from her New York State employment. She also estimated her total liquid assets at $101,352.00, including: (1) Washington Mutual checking account $700.00; (2) joint Safra Bank savings account $73,508.00;

(3) Washington Mutual savings account $10,959.00; (4) Chase savings account $506.00; (5) Apple savings $1,595.00; and (5) New York Tax Free Bond Fund $14,084. The wife's New York State pension has a present day discounted value, as of commencement, of $783,881.00. She also noted that she is indebted in the amount of $3,474.00 for a car loan.

Due to the husband's lack of documentation regarding his net worth and the [*6]conflicting 2005 statement of net worth, trial testimony and summation, this court's knowledge of the husband's finances, particularly his assets, liabilities and income, is limited to the sparse documentary evidence discussed herein, and the parties testimony. Where one party fails to provide information pursuant to discovery, the appropriate sanction, at the court's discretion, is to hold what the other party says as truth, with regards to the information in discovery being withheld (see Miceli v. Miceli, 233 AD2d 372, 373, 650 NYS2d 241, 242 [2 Dept., 1996] ["The sanction of preclusion imposed by the court is not a satisfactory remedy in this case. Unlike a negligence action where a preclusion order may foreclose presentation of a prima facie case or defense, the preclusion of proof in an equitable distribution action could permit a party to secrete the very property the other party is seeking to discover. . . .[A] more appropriate sanction in this case would be to deem true the defendant's allegations regarding the property about which discovery has been withheld."]). Furthermore, where one party fails to comply with court ordered demands, the court may use its discretion in determining equitable distribution, and fashion a remedy based on the particular situations of the parties involved, and on overriding concerns of fairness and equity (see Saleh v Saleh, 40 AD3d 617, 618, 836 NYS2d 201, 202 [2 Dept., 2007]).

Domestic Violence

The wife testified credibly to a history of violence and aberrant behavior against her by the husband. In 1995 or 1996, the husband broke the wife's pencils as she was preparing to leave for a civil service exam. When she did not complete the exam in the time period that the husband wanted her to, he yelled at her and kicked plants along the street in the presence of others who were also exiting the examination site. The wife alleges that in 1999 her finger was broken when her husband had an argument with her at the marital residence and he grabbed her and pushed her on to the counter. She did not call the police but did seek medical attention.

The wife contends that in the year 2000 there were a series of violent incidents by the husband. In April 2000, following a heated argument between the parties, the husband continuously smashed a vacuum cleaner into a chair until the vacuum cleaner broke into pieces. The wife testified that "[a]ctually, the end for that was only the bag for garbage from the vacuum cleaner and the wheels that were recognizable.". On Memorial Day weekend of May 2000, the husband awoke the wife at 5:00 a.m. insisting that they pick up her cousin at the airport. The wife said that her cousin made alternate arrangements to be picked up, but the husband insisted. After not finding the cousin at the airport, the husband yelled at the wife the entire ride back, pounding on the dashboard. On the highway, the husband pushed the gears into neutral, causing the car to stall. Also, in June of 2000, the husband became angry and pulled down and twisted a medicine rack, spilling drugs all over the floor.

The events on August 14, 2000 compelled the wife to seek an order of protection [*7]in Family Court occurred.[FN7] The wife avers that she was on her bed reading a hardcover book when the husband inquired about a photograph that he took from her night table. In response, she asked him if he took the photograph out of her drawer and the husband started to yell. The wife continued to read her book, and the husband took the book out of her hand and started hitting her feet with the book. He then grabbed her wrists, twisting them, and pushed her down on the bed. The husband eventually left the room, screaming that he is opening the door and she can leave. The wife testified that she was frightened. He came back to the room with a full glass of water and proceeded to pour it over the wife. When she went to the bathroom to get a towel and dry off the husband entered the bathroom and threatened to carve certain letters into her stomach, while holding a broken glass and hitting her with the palm of his hand on her calf. The letters that the husband threatened to carve are an abbreviation of their last name used by their health insurance provider on their insurance cards. The wife testified that she believed her husband would attempt to carry out his threat. She did not call the police because she was afraid of being cornered, nor did she attempt to leave the apartment due to the late hour. Eventually the husband calmed down and went to bed.[FN8] The wife attempted to go to sleep as well.

The husband conceded that he did take a photograph from his wife's night table that evening, but that this was normal behavior. He testified that he became angry when his wife questioned his actions. He later brought her a glass of water to help her calm down, but became annoyed when she continued reading her book. He testified that he regretted bringing her the water, and that he threw it at her while she was on the bed. He further testified to taking the book she was reading away from her and "with that soft-cover book, gone a couple of times like this [indicating with his hand forward, making movements towards the right quickly.]."

The wife also testified to the following incident:

"Q: Did anything occur on August 19, 2000?

A: Yes

Q: Can you tell the Court what, if anything, occurred on that date?

A: I went to the synagogue, and I didn't go to our regular one. We had a friend who had a grandchild and they named the baby. So I went to that synagogue and K. F. followed me there, and then, when we left or when the synagogue was over, I left, and he followed me, and he wanted to talk to me about taking a walk or, you know, have some kind of [*8]conversation, and I said, no, and I answered very tersely. Then he started getting angry at me and said, you are not going to talk to me, and he started screaming at me in the street, and then, he was just bombarding me with screaming and yelling, and I walked away from him. And when I got to the corner of Avenue I and Coney Island Avenue, he was so agitated and so angry, he took a garbage can, picked it up, turned it around and tossed it in my direction. He then was not through and he went across the street and did the same thing with the garbage can across the street on the same side of Coney Island Avenue, but on the other side of Avenue I.

Q: As a result of these incidents, is there anything that you did?

A: Yes.

When he went to get the other can, he didn't see me. I was behind him. I ran up the block and around the corner and ran away.

Q: Where did you go?

A: I think there was somebody at the baby naming that I knew, and I ran to her house.

Q: After the weekend, did you take any action as a result of what happened?

A: Yes. I came into court, I think it was the 21st of August, and I asked the Judge to give me a protection order and exclude him from the household.

Q: Where you granted a temporary order of protection by the court?

A: Yes, I was."

The wife described the marital apartment in a state of disarray.

The court observed that defendant is unable or unwilling to move on with his life, organize his finances or surroundings. His conduct in refusing to follow the direction of the court as it is related to trial discovery and preparation and order of the trial were the original basis to seek the appointment of a guardian. His insistence on lengthy monologues and expositions of the way he was treated previously in the Family Court have long delayed this matter. He claimed dyslexia and attention deficit disorder as a basis not to be able to go forward. When the trial finally commenced he refused to cooperate with his own lawyer and numerous delays and recesses were required. Even on the last day of trial the husband was reluctant to enter the courtroom and conclude the trial. The wife's descriptions of the husband's actions during the course of the marriage are noteworthy; to wit she describes the residence in a state of disarray, and her attempts [*9]to help organize the defendant as futile. The incident where the medicine rack was thrown to the floor occurred when friends came over to help organize the apartment. In describing the marital apartment as a two bedroom, two bath apartment, plaintiff stated it would have been spacious if things were put in their place. The wife testified, "if things were not thrown on the floor, if things were hung up in the closet, if things were just taken care, if things weren't constantly broken, if tables were not busted, if chairs were not busted, if things were just taken care of." She additionally testified:

"Around the same time, and also earlier, he took books - - my father had left me a whole bunch of books. I put them in cartons. He wouldn't let me put up the bookcases. They were leaning on the walls of my bedroom, and then, he decided that he wanted to just look through all the cartons and he opened up all the cartons and took all the books and threw them all over the floor. Of course I think - - I have no idea how many cartons I had, but I must have, at least, had fifteen (15) cartons of books."

Similarly, the husband's tax records for years were in a state of disarray. The husband refused to comply with the order of this court and hire his own forensic accountant even when monies were made available by the wife at the suggestion of the court. When suggested that defendant move for an expert to value the marital furnishings, since he repeatedly requested a division of the furnishings, he failed to do so. Also, when given the opportunity by the Family Court to retrieve his personal belongings by a date certain, he did not. Rather, he insisted on lengthy unfettered access to the apartment.

Failure to Deliver a Get

At trial, on the question of removal of barriers (Domestic Relations Law 253), the wife testified that in February 2001, she summoned the husband to a Beth Din of America, a Jewish religious court, in order to obtain a Get, or a Jewish divorce from him. He signed the summons acknowledging receipt, but failed to appear. In June 2001 the wife again summoned the husband to the religious court, this time the Beth Din of Elizabeth, New Jersey. After the husband's failure to respond to repeated summons, he was named a "mesarev" or refuser to appear before the court. The husband summoned the wife to Beth Din Zedek of America-Ein Mosche at the same time in June 2001, to which the wife responded that she had already summoned him to Beth Din of Elizabeth, New Jersey which was handling the matter. The husband's failure to appear before the Beth Din despite repeated summons and requests led the Beth Din to issue a "seruv," or contempt citation against him for refusal to appear. It was signed by a panel of rabbis in September 2002, including the rabbi of the congregation which the parties attend. The wife testified that because she was unable to obtain a Get, this led her to become an "agunah" or a chained woman' within the Jewish faith. As an "agunah" she is not permitted to remarry or date.

The parties Rabbi, when asked about efforts to have the husband appear before the [*10]Rabbinical Court stated:

"Q. Can you tell us what efforts were made to get Mr. [F.] To appear before the Beth Din?

A. Well, I know that I had a lengthy conversation with him where I tried many methods of persuasion to explain to him that the court would be fair to him and would listen to everything he had to say. He insisted only if they would have different conditions and pre-conditions and first they would agree to talk about this or that. I can't remember all the specifics. It was a very, very difficult conversation.

Q. Do you recall when this conversation took place?

A. It had to be somewhere around the time this was going on. Somewhere between the year 2000, 2001."

The wife requests that the husband be barred from receiving from equitable distribution for his failure to give her a Get. She testified that until he grants her a Get, she will be barred from remarriage, and the favorable economic consequences that accompany marriage. Thus, she requests that unless the husband gives her a Get, he should not be entitled to any marital assets or maintenance.

The husband contends that the wife's position that the husband should be barred from receiving any monies from equitable distribution should be disregarded. He avers in his written summation that statistically, most women over 60 years of age support themselves and it is unlikely that the wife herein will finds a man to financially provide for her, given that she has been the primary wage earner throughout their 30 year marriage.

Maintenance

The husband seeks an unspecified amount in maintenance. This demand is

premised upon a multitude of factors. The parties have been married for more than 30 years. The wife has been the primary wage earner throughout the duration of the marriage, working for New York State, wherein she also has a pension. The husband has been unemployed for 20 years, utilizing his time to participate in various religious and civil rights organizations. His only source of income is through his Social Security benefits, and reparation payments from Austria which, until recently, he has refused to accept on philosophical and moral grounds. Thus, based on the inequality of their economic situations, the disparity in the parties ages and his needs, the husband asks that the wife provide him financial support.

The wife opposes the husband's request for maintenance, as she claims that his [*11]income exceeds his living expenses, that he has not been forthright in his finances and her inability to remarry poses an unfair economic burden on her. She notes her own compromised state of health and desire to retire. The wife claims that she was the major supporter of the relationship because of the husband's refusal to obtain gainful employment.

Equitable Distribution of the Marital Apartment in Midwood, Brooklyn, New York

The marital apartment located in the Midwood section of Brooklyn, New

York, has been leased by the parties for many years. The lease is in both their names, although the wife has been residing there by herself since the temporary order of protection was issued on September 3, 2000. The husband was formally excluded from the residence on January 19, 2001. The wife requests that the lease be transferred to her name, individually. The husband requests that the lease be transferred in his name, individually and that he be allowed to live in the apartment.

Equitable Distribution of Retirement Benefits

The wife earned pension benefits as an employee of New York State.

Pension Appraisers, Inc., the neutral appraiser selected by this court pursuant to 22 NYCRR 202.16, produced an appraisal report which was marked in evidence, without objection. The appraisal considered pension earnings from the date the wife started the employment in June 1973, until the date of the commencement of the action, October 1, 2003, valuing the pension at $783,881.06. The appraisal also considered pension earnings from the date the wife started the employment, June 28, 1973, until the date the husband was excluded by court order from the residence, January 19, 2001, assigning a present day discounted value of $502,910.57. The wife requests that the pension be valued up to the date of the husband's exclusion from the marital residence. She also requests that if the husband is to receive part of the pension, then the remainder be returned to her upon the death of the husband. However, she further requests that if the husband does not deliver her a Get, then he should not be entitled to any portion of the pension, due to the negative economic repercussions she will face pursuant to his failure to deliver the Get, stating that her inability to remarry negatively impacts on her future financial circumstances (see Domestic Relations Law 236 [B] ][5] [h]).

The husband requests that the pension be valued from when the wife began the employment, June 28, 1973, until the commencement date of the proceeding, October 1, 2003, and that he receive one-half of the amount included in the plan in accordance with the formula enunciated in the seminal Court of Appeals decision Majauskas v. Majauskas (61 NY2d 481, 463 NE2d 15 [1984]).

Equitable Distribution of Bank Accounts

The parties have a joint savings account, under the control of the wife, with

a balance of $67,900.00 plus accumulated interest. Both the husband and wife request that this amount be divided equally. However the wife, as with all other marital assets, requests that the husband does not receive his share of the savings account if he does not [*12]grant her a Get.

Furthermore, the wife avers that the husband's individual checking and savings accounts, CD's, and other assets should be treated as marital assets, due to his failure to produce an updated statement of net worth regarding these amounts.

Equitable Distribution of Household Furnishings

Both the husband and wife are requesting various items of household furniture and personal possessions to be distributed solely to themselves. While both parties testified regarding some of the items being claimed, neither party included the value of these items in their respective statements of net worth, nor did either party hire an appraiser to value these assets.

Counsel Fees

The wife requests counsel fees based on the undue delay caused in the proceeding by the husband. She argues that the husband's behavior resulted in a court ordered Article 81 proceeding, as his behavior suggested that he may be in need of a guardian. Furthermore, she asserts that further delay was caused by the husband's behavior during trial, which resulted in cancellations in trial dates, as well as unnecessarily lengthy examinations. The wife's counsel requests fees in the sum of $24,010.00, and additionally requests leave to move for further additional counsel fees incurred at trial including preparation of the written summation. The husband also requests counsel fees in an undetermined amount. The court heard testimony at trial as to the parties expenditures of legal fees.

Discussion

Grounds

Pursuant to the order of the Honorable Betsy Barros, contained in her

decision granting summary judgment dated March 15, 2005, the wife shall submit, forthwith, on notice a bifurcated judgment of divorce to Judge Barros predicated on her decision and the establishment of the jurisdiction based upon the testimony in this trial.

Domestic Violence

As a general rule in New York State, marital fault, except in rare instances, is not to be considered by the court for the purposes of equitably distributing the marital assets (see O'Brien v. O'Brien, 66 NY2d 576, 498 NYS2d 743 [1985]; see also Blickstein v. Blickstein, 99 AD2d 287, 472 NYS2d 110 [2 Dept 1984]).

The incidents of abuse as described in this case do not rise to the level of "egregious conduct" that "shocks the conscience of the court." Therefore, it would be inappropriate for this court, under existing New York law, to consider these acts of violence when equitably distributing the martial assets (see Weinstock v. Weinstock, 114 AD2d 450, 494 NYS2d 361 [2 Dept., 1985). In Blickstein, the Appellate Division explained that there could be rare cases in which marital fault may play a role in equitable distribution, but such cases "will involve situations in which the marital misconduct is so [*13]egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship misconduct that shocks the conscience' of the court thereby compelling it to invoke its equitable power to do justice between the parties." (see Blickstein v. Blickstein, 99 AD2d 287, supra ; see also O'Brien v. O'Brien, 66 NY2d 576, supra ).

In the seminal case on egregious conduct, Havell v. Islam, (186 Misc 2d 726, 718 NYS2d 807, aff'd 301 AD2d 339 [2000]), the plaintiff wife produced evidence of years of physical abuse by her husband, often resulting in serious injuries. This pattern of abuse culminated in violence, after which the husband was sentenced to be incarcerated for 8 1/3 years. In the court's trial opinion, the Hon. Jacqueline Silbermann held that the husband's conduct was so outrageous as to warrant depriving him of his share of the marital assets. This decision expanded the "egregious conduct" standard by allowing for a pattern of ongoing, serious domestic violence over several years to be considered in equitable distribution.

In Kellerman v. Kellerman, (187 AD2d 906, 590 NYS2d 570 [3 Dept., 1992]), the Appellate Division overruled the Supreme Court's decision to allow marital fault to be considered in equitable distribution. The court noted that "[d]efendant's conduct, which consisted predominantly of verbal harassment, threats and several acts of minor domestic violence, is in our view not so outrageous as to shock the conscience of the court and to justify his divestiture of certain of the parties' marital property." " (Id. at 908; see also Stevens v. Stevens, 107 AD2d 987, 484 NYS2d 708 [holding that the court could not consider marital fault for purposes of equitable distribution where wife had a history of physically and verbally abusing husband even having stabbed him with a kitchen knife]).

The element of serious egregious conduct is lacking in the case at bar. The final order of protection issued in the Family Court against the husband which was modified and affirmed by the Appellate Division in which the Appellate Division described the incidents as "aggravating circumstances exist including violent and harassing behavior by the husband towards the wife which constitutes an immediate and ongoing danger to her." [citation omitted to protect the identity of the parties]. Similar to Kellerman in which the court found the husband's misconduct not to have risen to the level of egregiousness,the husband's conduct in this case consisted of threats, harassment, and certain acts of domestic violence. Furthermore, although this court heard the wife's credible testimony that she believed her husband would attempt to carry out his threat of carving certain letters into her stomach with broken glass, fortunately, this did not occur. Thus, in accordance with the existing case law, this court is constrained not to take the issue of domestic violence into consideration for purposes of equitably distributing the marital assets (see DRL 236 [B] [5] [d] [13]).

Refusal to Deliver a Get

Domestic Relations Law section 236 [B] [5] [h] states that "[i]n any

decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of barrier to remarriage as defined in subdivision six of section two hundred [*14]fifty-three of this article, on the factors enumerated in paragraph d of this subdivision.". This section was added to the equitable distribution statute in 1992 to authorize a judge in a matrimonial action to consider the effects of a barrier to remarriage of one of the spouses when determining equitable distribution. In the sponsoring Member's Memo, Assemblyman Sheldon Silver stressed that a judge should be able to consider "whether one party maintains a barrier to remarriage' in arriving at said decision." [emphasis added] (Sponsor's Mem, Bill Jacket, L 1992, ch 415).

This section of the law codified the then seminal Supreme Court decision of which characterized the husband's refusal to give a Get as another "factor" under Domestic Relations Law 236 [B] [5] [d] [13] to take into consideration when determining the distribution of assets between parties (see Schwartz v. Schwartz, 153 Misc 2d 789, 583 NYS2d 716 [Rigler, J., N.Y.Sup. Mar 11, 1992] [No. 14556/89, 2734]). In 1997 the Appellate Division affirmed Judge Rigler's decision and held that the former husband forfeited any right to distributive awards due to his initial refusal to give his wife a Get (see Schwartz v. Schwartz, 235 AD2d 468, 652 NYS2d 616 [2 Dept., 1997]).

In Pinto v. Pinto (260 AD2d 622, supra ), the Appellate Division held that granting the ex-wife one hundred percent of property listed on the parties' statement of net worth in the event the ex-husband did not deliver a Get within a specified time period was not an improvident exercise of discretion. The court referred to Schwartz when considering the effect on equitable distribution of a husband's

refusal to deliver a Get (see Pinto v. Pinto, 260 AD2d, supra at 622).[FN9]

In his testimony before this court on the issue of the husband's refusal to [*15]give a Get to the wife, the Rabbi of the congregation that both the wife and husband attended, who also served as a judge on the Rabbinical court, testified that even if the wife were to obtain a civil divorce, the inability of the wife to obtain a Get would act as a barrier to her remarriage. According to his testimony, under Jewish law, a wife who is unable to receive a Get is called an "agunah," or a chained woman because she is unable to marry another man, yet at the same time is not in a real existing marriage. According to the Rabbi, the effects of a barrier to remarriage are not restricted to the inability of a spouse to remarry; this also limits her social life, because she cannot relate to married couples, nor can she freely interact with single men. She would be unable to go to "single's" events or date, and is consequently unable to find another potential spouse and remarry. The Rabbi further testified that according to Jewish history, "a woman who does not receive a Get is considered almost as if she's in mortal danger of her life because she has no ability to act in a normal fashion."

Additionally, the wife testified that because she is a practicing Orthodox Jew, if she does not obtain a Get her community will not consider her a single woman, placing her in a situation where she is still considered a married woman but without any religious rights or benefits of a married person.

The credible testimony by the wife, and the two (2) rabbis, both of whom sit as members of rabbinical courts, lead this court to find that the husband's refusal to voluntarily give the wife a Get, thereby removing barriers to her remarriage, is a basis to exercise its discretion under Domestic Relations Law 236 [B] [5] [h] to disproportionately distribute marital assets in the event that a voluntary Get is not delivered. [FN10] [*16]

The husband's claim that the wife's attempts to obtain a Get or the courts' authority to impose economic sanctions by way of limiting or denying equitable distribution is coercive and, therefore, not available because a Get must be voluntarily given are not persuasive. It must be stressed that the court is not requiring the husband to deliver a Get, rather the court is economically distributing property and determining maintenance in conformity with statutory scheme established by the legislature in the Domestic Relations Law 236 B [5] [h] which authorizes the court to "[i]n any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of barrier to remarriage as defined un subdivision six of section two hundred fifty-three of this article, on the factors enumerated in paragraph d of this subdivision.".

This court is not and will not interfere with the religious questions. The court first notes that "[i]t is without question that when courts must touch upon questions of religious concerns, they may not consider religious doctrine" (Presbyterian Church v. Hull Church, 393 US 440, 449 [1969]). Further, the court recognizes that it is a basic tenet of constitutional law that " civil courts are forbidden from interfering in or determining religious disputes. Such rulings violate the First Amendment because they simultaneously establish one religious belief as correct . . . while interfering with the free exercise of the opposing faction's beliefs'" (Lightman v. Flaum, 97 NY2d 128, 137 [2001], cert denied 535 US 1096 [2002], quoting First Presbyt. Church v. United Presbyt. Church, 62 NY2d 110, 116 [1984], cert denied 469 US 1037 [1984]).

In applying this doctrine to an issue similar to that now before the court, i.e., the limitations of the secular courts as it concerns the issuance or production of a [*17]religious divorce, it has been held that:

"This Court cannot preclude defendant from acting within the religious realm in seeking to obtain a religious dissolution of the parties' marriage. To do so would be an entanglement of the secular courts in the religious practice of defendant. Clearly this is improper and would be a violation of the Establishment Clause of the First Amendment to the United States Constitution."

(Moskowitz v. Moskowitz, NYLJ, June 10, 1997, p 27, col 6 [Rigler, J.]).

Clearly, the converse is true; this court cannot compel defendant to act within the religious realm and provide a religious dissolution of the parties marriage inasmuch as he is not the plaintiff herein nor has he filed a counterclaim for divorce.

The inquiry of this court is limited to the authority given the court to

consider the consequences of the failure to remove a barrier to remarriage pursuant to Domestic Relations Law section 236 B [5] [h]. The court is bound to accept the statute as written by the legislature. There is no challenge to the statute asserted nor can the court, or a court on its own initiative, raise such an issue (see Becher v. Becher, 245 AD2d 408, 667 NYS2d 50 [2 Dept.,1997]).

Maintenance

It is well settled that the amount and duration of maintenance is committed

to the sound discretion of the trial court (see e.g. Schultz v. Schultz, 309 AD2d 849, 766 NYS2d 76 [2 Dept., 2003]; Wilson v. Wilson, 308 AD2d 583, 764 NYS2d 828

[2 Dept., 2003]; Buchsbaum v. Buchsbaum, 292 AD2d 553, 740 NYS2d 359

[2 Dept., 2002]; Murray v Murray, 269 AD2d 433, 703 NYS2d 402 [2 Dept., 2000]), and that every case must be determined on its own unique facts (see e.g. Wortman v. Wortman, 11 AD3d 604, 783 NYS2d 631[2 Dept., 2004]; Mazzone v. Mazzone, 290 AD2d 495, 736 NYS2d 683 [2 Dept., 2002]). In awarding maintenance, "the court must consider the reasonable needs of the recipient spouse and the pre-separation standard of living in the context of the other factors enumerated in Domestic Relations Law §236 [B] [6] [a]" (Chalif v. Chalif, 298 AD2d 348, 751 NYS2d 197 [2 Dept., 2002]), which factors include " the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance.'" (Kret v. Kret, 222 AD2d 412, 634 NYS2d 719 [2 Dept., 1995], citing Domestic Relations Law 236 [B] [6] [a]). "[O]ne of the purposes of an award of maintenance is to encourage economic independence." Hildreth-Henry v Henry, 27 AD3d 419, 811 NYS2d 110

[2 Dept., 2006]; Benzaken v. Benzaken, 21 AD3d 391, 799 NYS2d 579 [2 Dept., 2005]; Ventimiglia v. Ventimiglia, 307 AD2d 993, 763 NYS2d 486 [2 Dept., 2003]; Unterreiner v. Unterreiner, 288 AD2d 463, 733 NYS2d 239 [2 Dept., 2001].

[*18]In this case, the marriage is one of long duration, the parties are ages 61 and

80, and both parties have ongoing health concerns. The wife has lung cancer, asthma, hypertension, acid reflux, and breathing problems, and the husband suffers from emphysema, arthritis, gout, gastroenterology problems and attention deficiency disorder. The wife is employed on a full time basis with New York State. The husband is currently unemployed. He held various forms of employment during the first 10 years of the marriage, but has spent the rest of his time volunteering with civil rights organizations. The husband has exhibited no intention to seek employment, nor does this court expect him to do so at his age and health.

The wife asserts that the husband has not been forthcoming regarding his statement of net worth. The statement provided by him is dated June 29, 2005. The husband has not complied with requests from the wife to reaffirm his original statement of net worth. Furthermore, he has not complied with a court order for an updated statement of net worth, even though the wife provided a check (pursuant to this court's request) at the time the husband was pro se, to pay for him to obtain the services of an accountant to prepare same. Even when he was represented by counsel, his counsel could not get him to provide an updated of statement of net worth or cooperate with discovery. Therefore, the wife avers that the court is able to make negative inference as to the husband's finances.

Throughout the duration of this marriage, the wife has been both the sole homemaker and primary wage earner. There are no children of the marriage and the husband has not significantly contributed financially to this marriage, nor has he meaningfully supported his wife in such a way to further her career. Furthermore, he stopped working and instead spent his time volunteering, leaving the burden entirely on the wife to financially provide for them, while, she claims, still neglecting domestic responsibilities, such as housecleaning, food shopping, meal preparation, and filing of taxes [FN11]. Also, due to his failure to provide an updated statement of net worth, the evidence as to his current finances is sparse.

However, the husband has limited earning potential, primarily due to his age and poor health. While the wife has her own health concerns and is nearing the age of retirement, she is currently employed and her income far exceeds that of the husband. There is also a significant age disparity between the parties. She has sufficient income, at this time, and property to maintain her standard of living, while still being able to provide for the reasonable needs of the husband. Thus, under the extant circumstances, the husband is awarded non-durational maintenance from the wife (see Marino v. Marino,52 AD3d 585, 860 NYS2d 170 [2 Dept., 2008]; see also Brooks v. Brooks, 55 AD3d 520, 867 NYS2d 451 [2 Dept., 2008]).

Under the circumstances based on the parties' marital standard of living, their [*19]respective disparity in income and ages, the husband's lack of employable skills, present and future earnings capacity of the wife as compared to the husband, property, length of the marriage, physical infirmities, and the husband's limited expenses, an award of maintenance is warranted. Applying these statutory considerations to the facts of this case, the court awards the husband non-durational taxable maintenance in the amount of $400.00 each month. It is clear to this court that even if the husband were to comply with the discovery demands, simply based upon his prior and present lifestyle and the disparity in income and the parties ages, an award of non-durational maintenance is warranted. This court notes that had the husband engaged in full and timely disclosure, the award of maintenance very well may have been greater.

Domestic Relation Law 236 B [6] [d] in referring to maintenance states that, "[i]n any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of a barrier to remarriage, as defined in subdivision six of section two hundred fifty-three of this article, on the factors enumerated in paragraph (a) of this subdivision.". Accordingly, based upon the facts presented to this court, the award of maintenance must be contingent upon the husband voluntarily giving the wife a Get within 45 days of entry of the judgment of divorce. It would be unjust and inappropriate to have the wife pay spousal support for the husband's benefit yet she is still "chained" to him.

The maintenance payments shall terminate in the event of the husband's remarriage, the death of either party, or failure of the husband to voluntarily give the wife a Get with 45 days of notice of entry of the judgment of divorce. Said payment shall be mailed to the husband's residence retroactive to the date of first application (see Dooley v. Dooley, 128 AD2d 669 [2 Dept., 1987]). If the husband refuses to voluntarily give and deliver a Get to the wife within 45 days then the wife shall not be obligated to pay maintenance to the husband.

Health Benefits

The husband is in poor health and has been unemployed for a large majority of the parties' long term marriage. Therefore, it is unlikely he is going to produce any income, other than that which he receives through Social Security and reparation payments, anytime in the near future. He is currently eligible for Medicare benefits, and may also be entitled to Medicaid benefits. The husband testified to his utilization of out-of-network providers.

Pursuant to Domestic Relations Law 177, the parties are on notice that they may no longer be allowed to receive health coverage under the former spouse's health insurance plan upon entry of the judgment of divorce. The husband may be entitled to health insurance through a COBRA option, or otherwise may be required to secure his own health insurance. There was no testimony at trial as to the cost of COBRA benefits and therefore, this court cannot award consider an award of payment by the wife of this [*20]expense. Accordingly, the parties shall cooperate in a timely manner and complete the necessary forms to apply for COBRA benefits if the husband so desires. He shall request the COBRA forms within 20 days so that he may obtain separate coverage, if he so desires.The court cannot award a party to pay the other party's unreimbursed medical expenses (see Bains v. Bains, 308 AD2d 557, 308 AD2d 557, 764 NYS2d 721 [2 Dpet., 2003] "[j]udgments of divorce which direct a parent to pay the other parent's unreimbursed health care expenses are in the nature of open-ended obligations which this Court has consistently disfavored . . . [o]rdinary or routine unreimbursed medical expenses should be considered as included in a maintenance award, and extraordinary unreimbursed medical expenses cannot be awarded prospectively in unfixed amounts' (Gulotta v. Gulotta, 215 AD2d 724, 725 [1995]; Zabin v. Zabin, 176 AD2d 262, 264 [1991]"). There was no testimony proffered at trial by the husband as to the cost of COBRA benefits notwithstanding the many months he had to prepare for trial.

Equitable Distribution

In recognizing a marriage as an economic partnership, the Domestic Relations Law mandates that the equitable distribution of marital assets be based on the circumstances of the particular case, and directs the trial court to consider a number of statutory factors listed in Domestic Relations Law 236 [B] [5] [d][FN12] (see generally [*21]Holterman v Holterman, 3 NY3d 1, 7-8 [2004]).

"Equitable distribution presents matters of fact to be resolved by the trial court, and its distribution of the parties' marital property should not be disturbed unless it can be shown that the court improvidently exercised its discretion in so doing'" (Johnson v. Johnson, 261 AD2d 439, 440, 690 NYS2d 92 [2 Dept., 1999], quoting Oster v. Goldberg,226 AD2d 515, 640 NYS2d 814[2 Dept., 1996], appeal denied 88 NY2d 811 [1996]).

Marital v Separate Property

Domestic Relations Law 236 [B] [1] [c] defines marital property as "all

property acquired by either or both spouses during the marriage and before . . . the commencement of a matrimonial action, regardless of the form in which title is held" (see Seidman v. Seidman, 226 AD2d 1011, 1012, 641 NYS2d 431 [1996]). Separate property, on the other hand, is defined, in part, as "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse" (DRL 236 [B] [1] [d] [1]). It must also be recognized, however, that the term "marital property" is to be broadly construed, while the phrase "separate property" is to be narrowly construed (see e.g. Judson v. Judson, 255 AD2d 656, 679 NYS2d 465 [3 Dept., 1998], citing Price v. Price, 69 NY2d 8, 511 NYS2d 219 [1986]). Hence, the law favors the inclusion of property within the marital estate (compare DRL 236 [B] [1] [c] and [d]; see Burns v. Burns, 84 NY2d 369, 618 NYS2d 761 [1994]; Majauskas v. Majauskas, 61 NY2d 481, 474 NYS2d 699 [1984]), and, accordingly, "the party seeking to establish that [*22]a particular item is indeed separate property bears the burden of proof" (LeRoy v. LeRoy, 274 AD2d 362, 712 NYS2d 33 [2000], citing Seidman, 226 AD2d 1011, 641 NYS2d 431 [3 Dept., 1996] Heine v. Heine, 176 AD2d 77, 580 NYS2d 231 [1 Dept., 1992], lv denied 80 NY2d 753 [1992]). When a party co-mingles separate funds with marital funds and assets (see Hartog v. Hartog, 85 NY2d 36, 623 NYS2d 537 [1995]; Lynch v. King, 284 AD2d 309, 725 NYS2d 391 [2 Dept., 2001]), it is that party's burden to trace the source of the funds with sufficient particularity to rebut the presumption that they were marital property (see Massimi v. Massimi, 35 AD3d 400, 825 NYS2d 262 [2 Dept., 2006]; see also Bennett v. Bennett, 13 AD3d 1080, 790 NYS2d 334 [4 Dept., 2004]).

Valuing an Asset

The party seeking the distribution of an asset has the burden of establishing

its value (see e.g. Vainchenker v. Vainchenker, 242 AD2d 620, 662 NYS2d 545

[2 Dept., 1997]; Amisson v. Amisson, 251 AD2d 274, 672 NYS2d 801 [2 Dept., 1998]; Harris v Harris, 242 AD2d 558, 662 NYS2d 532 [2 Dept., 1997]; Iwahara v. Iwahara, 226 AD2d 346, 640 NYS2d 217 [2 Dept., 1996]; Kaye v. Kaye, 192 AD2d 365, 596 NYS2d 33[1 Dept., 1993]; Vogel v. Vogel, 156 AD2d 671, 549 NYS2d 438

[2 Dept., 1989]).

Equitable Distribution of the "Marital Apartment", Brooklyn, New York

The marital apartment is not marital property subject to equitable

distribution, as it is rental property and not owned by the parties (see Fedoff v. Feoff, 41 AD3d 114, 835 NYS2d 895 [1 Dept., 2007] [where there is no expectation that a rental apartment will be converted into a condominium or cooperative, then it is not distributable property] see also Pulitzer v. Pulitzer, 134 AD2d 84, 523 NYS2d 508 [1 Dept., 1988]). However, based on the particular facts of this case, it is this court's determination that the wife should have sole possession (Martinucci v. Martinucci, 288 AD2d 444, 737 NYS2d 371 [2 Dept.,2001]citing Goldberg v. Goldberg, 172 AD2d 316, 568 NYS2d 394 [1 Dept., 1991] [[W]e find no abuse of discretion by the trial court in determining that the plaintiff was entitled . . . to exclusive possession of the marital rental apartment at Tudor City Place and the rights thereto]). The husbands' exclusion due to his violent acts as well as the entry of divorce based upon those acts would warrant that the wife shall continue to reside in the apartment. The wife has been the sole occupant of the apartment since 2001, eight years, and it is her income that has been paying the rent. This court recognizes that the husband did not voluntarily vacate the marital residence, rather he was excluded from the home based upon an order of protection and acts of violence. However, to uproot the wife from the apartment would be inappropriate. Additionally, the husband, with the help of a social services agency has established his own apartment. It should also be noted that the agency also provides the husband with household help once a week.

Equitable Distribution of Retirement Benefits

The wife acquired pension benefits during her continued full time employment [*23]with the State of New York. Pursuant to a court appointed neutral expert, the appraised value of the pension, from June 28,1973, the start of employment, up until October 1, 2003, the date of commencement is $783,881.06. The wife requests that the pension be appraised from June 28, 1973, when she began her employment, until January 19, 2001, when the husband was formally excluded from the residence, which is valued at $502, 910. 57. Pursuant to this valuation, she offers to divide the amount in half, so that she retains a 50% interest in the pension, and her husband assumes 50% interest, conditioned on the husband giving her a Get. However, if he fails to deliver a Get, the wife asks that she retain 100% of the pension (see Pinto v. Pinto 260 AD2d 622, supra [held that granting the ex-wife 100% of property listed on the parties' statement of net worth in the event the ex-husband did not deliver a Get within a specified time period was not an improvident exercise of discretion]). The husband requests 50% of the retirement benefits from the date of the marriage (or in the case the date of employment) to the date of commencement of this action.

It is well established that a spouse's pension constitutes marital property for the amounts accumulated during the marriage and prior to the commencement of the divorce action (see Majouskas v. Majouskas, 61 NY2d 481,[1984], supra ). The court finds no authority, statute, or case law, nor does the wife provide precedent, to establish her request that the date of separation should be utilized as the calculation date when valuing a pension plan. On the contrary, the Second Department has held, "[i]t is well established that a spouse's pension constitutes marital property only to the extent that the corpus of the fund accumulates during the marriage and prior to the commencement of the divorce action (see Domestic Relations Law § 236 [B] [1] [c]; Majauskas v. Majauskas, 61 NY2d 481; Marcus v. Marcus, supra , at 138; Damiano v. Damiano, 94 AD2d 132)" (Cohn v. Cohn,155 AD2d 412, 547 NYS2d 85 [2 Dept., 1989]).

Thus, the pension shall be calculated pursuant to Majauskas v. Majauskas (61 NY2d 481, supra ) using the date of June 28, 1973, the start of the wife's employment during the marriage, until October 1, 2003, the date of commencement of this divorce proceeding. The fact that the wife delayed in commencing the action is not a basis to use the parties' date of separation as the appropriate date for valuation.

In determining the equitable disposition of property, this court must also consider the "direct or indirect contribution made in the acquisition of such marital property by the party not having title, including contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party." (see Majouskas v. Majouskas, 61 NY2d 481, supra [1984], citing Domestic Relations Law 236 [B] [5] [d] [1] [6]).Both parties have ongoing health concerns, and the wife is nearing the age of retirement. Based on these factors, as well as the parties' respective age, future economic circumstances, health, standard of living and the disparity of the non-economic contributions to the marriage as described herein and this court's order of maintenance payment to the husband by the wife, the husband should receive 50% of the [*24]wife's pension, as valued from the date of commencement of this action (see Arvantides v. Arvantides, 64 NY2d 1033, 478 NE2d 199[1985]). This provision shall be effectuated only in the event that the husband voluntarily secures a Get for the wife with 45 days of the service of a copy of the judgment with notice of entry (see Pinto v. Pinto 260 AD2d 622, supra ).

The wife further requests in her statement of proposed disposition and

written summation that she be permitted to take a "Pop-Up" option when she retires. The wife avers that this option would provide that any pension payments due to the husband would revert back to the wife upon the husband's death. Inasmuch as neither side provided testimony or proof as to selection of retirement options the court includes no mandate related thereto except as to the requirement for a Qualified Domestic Relations Order in accordance with Majouskas v. Majouskas (61 NY2d 481, supra [1984]).

Equitable Distribution of Bank Accounts

The wife included the Safra account which is the parties' joint savings in

her statement of net worth. The value of the marital portion of this asset is $67,900.00 plus interest. Both parties agree that this asset should be shared equally. However the wife requests that the husband not receive these amounts if he does not give her a Get. The wife additionally asks that if she is entitled to attorney fees, then that amount be deducted from the husband's share in the Safra account. The husband requests this account be shared. This court directs that the parties share this account equally, together with accumulated interest in accordance with the parties concession at trial that this account should be shared equally (see Evans v. Evans - NYS2d , 2008 WL 5263831, supra ). However, if the husband fails to voluntarily deliver a Get within 45 days from entry of the judgment of divorce, the wife, consistent with this decision, shall own the account in its entirety (see DRL 236 B [5] [h]; see also Pinto v. Pinto, 260 AD2d 622, supra ).

The wife concedes that the husband maintains an account at Washington Mutual Bank for the benefit of his nephew and the monies are the nephew's monies, and therefore, based upon this concession, the funds are not subject to equitable distribution.

Additionally, the wife asks the court to make a negative inference regarding the husband's personal checking and savings accounts, CD's and consider these amounts to be marital assets. As previously stated this court's knowledge of the husband's finances is lacking due to his failure to submit an updated statement of net worth. Where one party fails to comply with court ordered demands, the court may use its discretion in determining equitable distribution, and fashion a remedy based on the particular situations of the parties involved, and on overriding concerns of fairness and equity (see Saleh v. Saleh, 40 AD3d 617, 618, 836 NYS2d 201, 202 [2 Dept., 2007]). Moreover, where one party fails to provide information pursuant to discovery, then the court may use its discretion and hold what the other party says about the withheld information as true (see Miceli v. Miceli, 233 AD2d 372, 373, 650 NYS2d 241, 242 [2 Dept., 1996]).

[*25]The husband's failure to cooperate could potentially result in a negative inference being drawn by the court and an award favorable to the wife. Here, the wife requests a negative inference to be drawn as it relates to the husband's assets based upon his failure to comply. However, this court finds the husband's testimony credible as to the bank accounts that he paid $12,500.00 to his former attorney utilizing lump sum payments from monies received from Austria, and $15,000.00 to pay his present counsel through a credit card advance. He further testified that he paid his present counsel a total of $30,000.00 inclusive of the Article 81 proceeding. It appears that the reparation monies were received and the debt incurred after the commencement of this action. It also appears from the husband's testimony that the remaining cash in his accounts were from credit card advances that were taken after the filing of the summons in this action. As such, the husband shall maintain exclusive rights to said accounts and shall be responsible for the debt. If the court were to equitably distribute this asset, the court would also have to equitably distribute the debt.

The monies derived from the war reparations are clearly separate property. They were received by the husband, post commencement for horrific historical events which occurred prior to the parties marriage. They clearly represent monies for pain and suffering and reimbursement for separate property which may have been lost or seized during the Nazi occupation (see DRL 236 B [1] [d]). It is well established in the context compensation for personal injuries are separate property (see DRL 236 B [1] [d] [2]). Similarly if the payments are for property wrongfully seized as an act of war, prior to the marriage, they were for separate property.

Equitable Distribution of Household Furnishings

The wife avers that she placed the husband's personal belongings aside, and has made them readily available. She also packed some boxes with clothing belonging to the husband, and has additionally set aside three (3) chairs, two (2) mirrors, two (2) slabs of marble, an antique desk, and some books, all which belong to him. The husband contends that he never had the opportunity to sort through their belongings and determine what items personally belong to him. He testified at trial as to several items that he wishes to retain, including books, bookcases, antiques, and various pieces of furniture, and entered photographs of these items into discovery. The court sustained the wife's objections to the admittance of photographs of the books in the bookcase, because the titles of the books being claimed by the husband were not legible and were in Hebrew, and therefore, it was unclear to the court as to which items he was specifically claiming. The court could not at trial allow the husband to testify as to the name and history of each book in the parties collection. The wife indicated, through counsel at trial, that if ordered, she would give to the husband's his separate property and books once he secured a Get. The husband objected to the wife deciding what would be considered separate property and was steadfast in his position that he needed an opportunity to go through the entire apartment by himself for lengthy periods of time to organize and inventory the contents. [*26]The husband has not availed himself of the rights to have an appraiser value and catalogue the contents and, clearly, this court cannot sanction the husband's return to the residence in consideration of the circumstances of this case including the history of domestic violence. However, it is also clear to this court that the wife has no right to hold the husband separate property. Accordingly, within 30 days of notice of entry of the judgment of divorce, the husband shall notify the wife of his intent to send an individual other than himself to retrieve his separate property. The items shall be retrieved no later than 45 days from the entry of the judgment of divorce. The court notes that the Family Court order excluding him from the apartment did allow him time to remove his separate property but the husband thought it was not enough time so he refused to avail himself of that opportunity. If he believes the items returned do not constitute all of his separate property, he may make a post judgment application to the court within 30 days after receipt to appoint an expert at his own cost to inventory the balance of the apartment and make an appropriate application related thereto. The balance of the contents of the apartment shall be the property of the wife.

Counsel Fees

Domestic Relations Law section 237 (a) permits the court to direct either spouse to pay counsel fees to the other "to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties." The award of counsel and accountant's fees is controlled by the equities and circumstances of each particular case. (see e.g. Levy v. Levy, 44 AD3d 398, 771 NYS2d 386, [2 Dept., 2004], citing DRL 237[a], [d]; see also DeCabrera v. DeCabrera-Rosete, 70 NY2d 879, 881, 524 NYS2d 176 [1987]; Kearns v. Kearns, 270 AD2d 392, 393, 704 NYS2d 627 [2 Dept., 2000], appeal denied 95 NY2d 760 [2000]).

"The intent of the provision is to ensure a just resolution of the issues by creating a more level playing field with respect to the parties' respective abilities to pay counsel, to make sure that marital litigation is shaped not by the power of the bankroll but by the power of the evidence.'" (Silverman v. Silverman, 304 AD2d 41, 756 NYS2d 14[1 Dept., 2003], quoting Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, DRL C237:1, at 6, citing O'Shea v. O'Shea,93 NY2d 187, 689 NYS2d 8 [1999]).

Unlike a pendente lite award of counsel fees, a final order of counsel fees "[i]n the absence of . . . a stipulation, an evidentiary hearing is required so that the court may test the claims" of the attorney seeking counsel fees regarding the extent and value of the services rendered (Kelly v. Kelly, 223 AD2d 625, 636 NYS2d 840 [2 Dept., 1996]; see also Nee v. Nee, 240 AD2d 478, 479, 658 NYS2d 440 [2 Dept., 1997]; Burns v. Burns, 193 AD2d 1104, 1105, 598 NYS2d 888 [4 Dept., 1993]; see also Marocco v. Marocco, 53 AD2d 707, 708, 383 NYS2d 939 [2 Dept., 1976]; Woessner v. Woessner, 108 AD2d 812, 813, 485 NYS2d 325 [2 Dept., 1985]).

[*27]When there is no stipulation allowing the court to base counsel fees on affirmations of the parties, the evidentiary hearing is necessary to "determine (1) an appropriate counsel fee for the...attorney and (2) the relative financial circumstances of the parties, so as to permit a proper allocation of the fee" (Hansen v. Hansen, 86 AD2d 859, 859, 447 NYS2d 323 [2 Dept., 1982]) and it provides the party opposing the award a crucial opportunity to "test in a meaningful way the value and time of the claimed services of counsel." (Maroney v Maroney, 208 AD2d 915, 916, 617 NYS2d 874 [2 Dept., 1994]). Additionally, the evidentiary hearing provides a safeguard against due process intrusions by ensuring that a party will not be deprived of property without notice and without an opportunity to be heard (Maroney v. Maroney, 208 AD2d 915, supra ).

The court must consider, inter alia, the following factors: (1) the nature and extent of the services rendered; (2) the actual time spent; (3) the nature of the issues involved; (4) the professional standing of counsel, including background and experience; and (5) the financial circumstances of the parties (see Thomas v Thomas, 221 AD2d 621; Willis v Willis, 149 AD2d 584; Silver v Silver, 63 AD2d 1017, supra ). Here, there is a clear disparity in income.

The wife asks, in her summation, for the court to award her $24,010.00 in counsel fees, plus additional fees for the cost of trial and summation which she has not yet calculated, based on the undue delay caused by the husband. At trial, the bills she received and checks she paid documenting her attorney's fees were marked into evidence.Based upon the husband's actions, this court partially grants the wife's request for attorney fees. Clearly, there was an undue delay caused by the husband's actions rendering the requirement that the wife's counsel had to provide his client with more hours of legal service than would have ordinarily been necessary. The court will not punish defendant for not settling the matter; he has a right to his day in court (see Comstock v. Comstock, 1 AD3d 307, 1 AD3d 307, 766 NYS2d 220 [2 Dept., 2003]) ["...an award of an attorney's fee is designed to redress the economic disparity between spouses. It is not intended to address a party's decision to proceed to trial rather than agree to a settlement (see O'Shea v. O'Shea, 93 NY2d 187 (1999)"]). However, as detailed in this opinion, the husband's absolute failure to recognize that in order to conclude this matter he had to conduct discovery, provide disclosure, cooperate with his lawyer and follow the directions of the court. Instead, the husband engaged in lengthy delays and an inability to move forward with the trial. He claimed, in statements that went on for great lengths, that he could not organize his thoughts or adequately present his position because of his emotional and mental state. While this court has no authority under the Domestic Relation Law to award fees related to the Article 81 proceeding - the delay in the matrimonial proceeding, and the amount of monies expended by the wife, because of the husband's refusal to follow court directions, refusal to even state his name on the record without being sworn or affirmed during the initial trial and his obstructionist conduct throughout warrant him paying $5,000.00 of the wife's counsel [*28]fees (see Sevdinoglou v. Sevdinoglou, 40 AD3d 959, 836 NYS2d 680

[2 Dept., 2007] award of counsel fees should be based upon, inter alia, the relative financial circumstances of the parties, the relative merits of their positions, and the tactics of a party in unnecessarily prolonging the litigation"]; see also Wenner v. Wenner, 56 AD3d 766, 869 NYS2d 563 [2 Dept.,2008]). The payment shall be made from his share of the marital bank account. The payment of the fees for dilatory conduct does not include any fees related to the Article 81 proceeding (see Holbrook v. Holbrook, 226 AD2d 831, 640 NYS2d 641, [3 Dept.,1996]; see also Cinnamond v. Cinnamond, 203 AD2d 229, 610 NYS2d 276 [2 Dept., 1994]; Erdheim v. Erdheim, 119 AD2d 623, 501 NYS2d 77 [2 Dept.,1986]). The court is only awarding the limited amount of $5,000.00 based upon the husband's limited earning ability. The court, thought, cannot ignore the fact that the wife's counsel fees were made unnecessarily higher due to the husband's actions.

The husband requests an uncalculated amount for attorney fees. While he

did testify regarding how much he has incurred in counsel fees in the past, he failed to submitt at trial any written documentation in the form of either receipts or billing statements in support of these claims. Without such documentation, this court cannot award him attorney fees due to a failure of proof [see Weinschneider v. Weinschneider,

50 AD3d 1128, 857 NYS2d 613 [2 Dept.,2008] ["The defendant was not entitled to an award of an attorney's fee as she failed to submit adequate documentation of fees paid in connection with an earlier cross motion"]; Gahagan v. Gahagan, 51 AD3d 863, 859 NYS2d 218 [2 Dept., 2008] ["[A]n attorney's failure to provide written, itemized bills at least every 60 days pursuant to 22 NYCRR 1400.2 will also preclude collection of a fee. The failure to abide by these rules, promulgated to address abuses in the practice of matrimonial law and to protect the public, will result in preclusion from recovering such legal fees.]).

Conclusion

The court in adjudging the credibility of the parties must note that the wife has credibly testified as to the years of and level of difficulty that she endured in staying with the husband for 30 years of this marriage.

While it appears she was willing to endure the years of disorganization and her husband's lack of gainful employment and she recognized the age disparity between them, his increasingly abusive behavior resulting in domestic violence directed towards her set in motion a chain of events culminating in the wife seeking relief in the Family Court and obtaining an order of protection.

The husband has adamantly refused to move on with his life or allow the litigation to end. He spent hours in lengthy testimony before the court directed against the Family Court Judge, who conducted the trial, the judge's law assistant and the wife's counsel. He fails [*29]to recognize that his appeal to the Appellate Division Second Department of that order resulted in a finding of "aggravating circumstances" yet he continues to rail against the Family Court decision. At the initial trial his refusal, while he was pro se, to follow directions of the court, his refusal to orderly allow the trial to proceed with the plaintiff going forward first, his insistence on constant repetition of past events in the Family Court and ad hominem attacks on his wife's lawyer and one of his own prior attorneys resulted in this court halting that trial and appointing a guardian ad litem pursuant to Article 12 of the C.P.L.R. At the trial the husband insisted, after numerous adjournments, that he still needed more time to prepare. Even after the Article 81 proceeding was dismissed the husband refused to move the matrimonial trial toward conclusion causing even further adjournments, innumerous recesses during the trial to speak with his lawyer and he failed to complete discovery or submit an updated affidavit of net worth. Even on the last day of trial the husband initially refused to come in to the courtroom and only entered when the court made it clear the trial would come to an end without him.

The court recognizes that the husband demands that the process proceed under his control and that he truly believes that he is the victim and that he has been wronged. Notwithstanding the husband's apologies for his actions relating to domestic violence on the record while minimizing them, it is clear to this court that it would be dangerous for the wife to continue to live with the husband given his increasingly out of control behavior. It is also clear to the court that the husband does not want to grasp the serious consequences and effect of his actions against the wife. This coupled with her own fragile state of health would make the continuation of a marital relationship impossible if not unlikely to succeed. It is time for him to recognize that there is life after divorce and that he is a cause of the divorce and not a victim of it.

The court recognizes through his many presentations that the husband is very proud of his contributions to society and the civil rights movement and the sacrifices that he has made both as a victim of the holocaust and in championing many social, political and religious causes. Yet the delay and this lengthy process must come to an end. He can no longer claim his medical condition warrant him being granted more time or rely on his lengthy speeches to prevent him from concluding this matter. It must be noted that he was successful in defending the Article 81 proceeding and as such he was deemed to be able to manage his own affairs.

Hopefully he will recognize the protests his lawyer mentioned at trial in his own religious community is caused by his adamant refusal to deliver a Get. He must recognize that the disintegration of the marriage was caused by him, the protests in the community are caused by him, the finding of the Family Court and the modification by the Appellate Division was caused by him, the refusal to previously inventory or remove his property was his own doing and his refusal to cooperate with his own lawyer in preparing affidavits of net worth and organizing his financial affairs has a detrimental affect on the presentation of his case. [*30]

The wife deserves the right to move on with her life, free from the control of the husband. She has endured long enough and the court urges the husband to accept this decision and it's consequences, cooperate in the voluntary granting of a Get and closing this chapter in their lives; to do otherwise would be unjust and unfair. This is a man whom has spent his early life living as a victim of a highly unjust and horrific period of the 20th century. He then dedicated his life to eliminate racial and ethnic prejudices, was jailed as part of the civil rights movement in the south, and was active in many social and religious causes. He is now in the 80th year of his life causing another to suffer by keeping her "chained" to him; it is a disservice to all that he professes to have stood for in life. All that K. F. insisted on during this litigation was that he be allowed to tell his story -he has had his day in court and the court clearly heard him.

Judgment of divorce is granted in accordance with the decision of the Hon. Betsy Barros. Equitable distribution shall be effectuated and the payment of maintenance and counsel fees as is directed in this trial decision.

The Family Court shall have concurrent jurisdiction with regard to

maintenance. The wife is authorized to resume or continue to use her maiden name if she so chooses.

The parties are directed to settle on notice separate Findings of Fact and

Conclusions of Law and Bifurcated Judgment of Divorce, and a Qualified Domestic Relations Order.

E N T E R:

Hon. Jeffrey S. Sunshine

J. S. C. Footnotes

Footnote 1: This matter was before two prior justices of this court who no longer sit in the matrimonial term and two other justices who presided over a companion Article 81 proceeding.

Footnote 2:Throughout this opinion the parties' last names have been omitted because of references to an Article 81 Proceeding, including quoted materials.

Footnote 3:During the course of this litigation the husband, when he was pro se, became increasingly agitated and claimed that his learning disabilities prevented him from concentrating or organizing his thoughts. At the commencement of a trial he refused to take his seat, demanding of the court that he be immediately sworn in. Also, the court received a letter dated August 3, 2005, from a social services organization, "Self Help" indicating their concern about his abilities and the need for a guardian.

"Self Help Community Services, Inc., has provided and continues to provide social work services through its Nazi Victim Services program for Mr. [F.]. In court on July 13, 2005 you asked why we have not applied to be Mr. [F.'s] Article 81 Guardian.' While in rare cases our agency does petition for appointment of an Article 81 guardian for some of our clients, our limited resources and other considerations prevent us from doing so in this case. However, just as this court raised the question of whether Mr. [F.] needs a guardian generally, we do feel that especially given the complexity of his divorce action he is not able to adequately represent himself. Our agency does not represent its clients in divorce matters. We lack the resources to serve as guardian ad litem. To protect Mr. [F.'s] rights, we ask the court to appoint an experienced matrimonial attorney as his counsel or, if the court finds that he qualifies under C.P.L.R. Section 1201, as his Article 12 Guardian Ad Litem, with payment coming from the marital assets."

Pursuant to C.P.L.R. 1201 the court appointed Charles S. Spinardi, Esq. as the guardian ad litem. The Article 12 guardian moved for the appointment of a guardian pursuant to Article 81 of the Mental Hygiene Law. Thereafter, the husband retained counsel who opposed the application and has represented him in this action as well. The matrimonial action was stayed pending the outcome of the Article 81 proceeding. That application was before the Hon. Ariel Belen and upon his appointment to the Appellate Division it was transferred to the Hon. David Schmidt. The former guardian ad litem reported to the court that on December 14, 2007, Judge Schmidt denied the application with the right to restore upon a letter.

Footnote 4: The husband's attorney, at trial, indicated on the record that client did not cooperate in providing her the necessary information to prepare a statement of net worth despite having made (4) four separate attempts to do so with him.

Footnote 5:While the transcript indicates $4,160.00, the court trial notes indicate $460.00, which is also this court's recollection.

Footnote 6:The husband has indicated in the past his refusal to accept reparations on moral grounds from Austria from the period of Nazi occupation, and now has indicated that he has reluctantly accepted the monies.

Footnote 7:The events which occurred in the Family Court have been a source of much of the defendant's anger during the course of the litigation.

Footnote 8:The wife testified that at various times the husband would corner her in the apartment.

Footnote 9:DRL 253 [6] defines barrier to remarriage:

"As used in the sworn statements prescribed by this section "barrier to remarriage" includes, without limitation, any religious or conscientious restraint or inhibition, of which the party required to make the verified statement is aware, that is imposed on a party to a marriage, under the principles held by the clergyman or minister who has solemnized the marriage, by reason of the other party's commission or withholding of any voluntary act. Nothing in this section shall be construed to require any party to consult with any clergyman or minister to determine whether there exists any such religious or conscientious restraint or inhibition. It shall not be deemed a "barrier to remarriage" within the meaning of this section if the restraint or inhibition cannot be removed by the party's voluntary act. Nor shall it be deemed a "barrier to remarriage" if the party must incur expenses in connection with removal of the restraint or inhibition and the other party refuses to provide reasonable reimbursement for such expenses. "All steps solely within his or her power" shall not be construed to include application to a marriage tribunal or other similar organization or agency of a religious denomination which has authority to annul or dissolve a marriage under the rules of such denomination."

Footnote 10:During the husband's counsel's cross examination of the Rabbi-witness, the following colloquy took place:

"Q. Rabbi, is a Get something that is supposed to be

voluntarily given?

A. Yes. It is supposed to be voluntarily given.

Q. So when people are demonstrating in front of other people's houses to embarrass them into giving a Get, I don't really know, is that appropriate?

A. Yes, that is appropriate. First of all, there are certain extreme circumstances when a Get can be coerced physically. We don't do that today anymore, because that's not the law of the land, but in ancient times, there were times when men could actually be coerced to give a Get. They could literally be beaten. The rational for that, it sounds a little bit strange to you, Mishna explains that, basically, deep down, everybody really wants to do the right thing, but sometimes you just have to beat it out of them to get them to do the right thing when their evil inclinations get in the way. I know it would be hard for you to understand. That's the exception rather than the rule. That is not normally done. There has to be egregious grounds for that to be done. Normally, less serious method, such as embarrassment and shame are used that were already used in the medieval times by the great authority. Actually, the grandson of the man who I mentioned before, Rashi, his grandson, Rabbi Tom Jacob, he's known as Rabbenu Tam. He had written a whole series of things that could be done. Communal pressure could be something. Coercion is physical force. Sometimes monetary threats to take some money away from someone. Giving someone something or making their life a little bit uncomfortable for them is not viewed as coercion in Jewish law."

Footnote 11:There was uncontradicted testimony that for years the husband could not organize his records to be able to file tax returns.

Footnote 12:As is relevant here, DRL 236 [B] [5] [d] provides that;

"In determining an equitable disposition of property under paragraph c, the court shall consider:

"(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;

"(2) the duration of the marriage and the age and health of both parties;

"(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;

"(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;

"(5) any award of maintenance under subdivision six of this part;

"(6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;

"(7) the liquid or non-liquid character of all marital property;

"(8) the probable future financial circumstances of each party;

"(9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;

"(10) the tax consequences to each party;

"(11) the wasteful dissipation of assets by either spouse;

"(12) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

"(13) any other factor which the court shall expressly find to be just and proper."



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