J.E. v T.E.

[*1] J.E. v T.E. 2012 NY Slip Op 50989(U) Decided on June 1, 2012 Supreme Court, Nassau County Palmieri, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 1, 2012
Supreme Court, Nassau County

J.E., Plaintiff,

against

T.E., Defendant.



200269/11



Attorney for Plaintiff

Shana L. Curti, Esq.

The Nelson Law Office, P.C.

2249 Derby Road

Baldwin, NY 11510

Attorney for Defendant

Dorothy M. Going, Esq.

600 Old Country Road, Ste. 229

Garden City, NY 11530

Daniel R. Palmieri, J.

Plaintiff's pendente lite motion to require payment to him of $51,863.00 for the purpose of paying his creditors is denied. [*2]

The parties were married on April 25, 2001 and have three children, ages 11, 9 and 6. The parties have lived separate and apart for an undisclosed period, with defendant having residential custody of the children and plaintiff having parental access pursuant to mutual agreement. Just prior to the commencement of this action, defendant wife won a substantial amount of money in the New York State Lottery, and pursuant to the parties' written stipulation ("Stipulation") most of the winnings have been placed in accounts with an investment company (hereinafter collectively referred to as the Fund), subject to mutual restraints against withdrawal or other use of the Fund. Tax free income from a portion of the Fund is payable to defendant and, pursuant to the Stipulation, she has deferred plaintiff's obligation for child support, pending trial. Further, and insofar as is relevant here, plaintiff has been granted leave by defendant to withdraw $50,000.00 from the Fund for his personal use, with an additional $10,000.00 that was paid to plaintiff's attorney.

The Court takes judicial notice of a more recent stipulation pursuant to which defendant has been granted leave by plaintiff to withdraw monies from the Fund to pay income taxes and legal and accounting fees arising in connection with her lottery winnings.

In his present application, plaintiff claims that he is in need of monies to pay various judgment creditors, some of whom have attached his wages. Plaintiff is a "Union Ironworker" reporting income form wages and interest of $81,332.00 in 2011, and claiming the three children as exemptions. Plaintiff's net worth statement lists 14 accounts payable which add up to the $51,863.00 requested. Items 3 and 13 are for identical amounts, albeit with different creditors, and no amount is listed for item 7. Plaintiff has submitted two recent credit reports which show a plethora of debts in various stages of collection. There has been no submission of any judgments, details or records showing when, to whom, by whom or for what purpose the debts were incurred.

This lack of information is, standing alone, a sufficient basis for denial of the motion because the Court is not able to discern whether the debt was incurred in furtherance of the marriage. Outstanding financial obligations incurred during the marriage, which are not solely the liability of either spouse, may be deemed marital obligations. However, a financial obligation incurred by one party in pursuit of his or her separate interests should remain that party's separate liability. Corless v. Corless, 18 AD3d 493 (2d Dept. 2005).

Moreover, even if there were a proper exposition of the claims, there is no authority in the Domestic Relations Law for interim distribution of marital assets, especially where, as here, numerous economic issues remain for consideration. Sloan v. Sloan, 127 AD2d 650 (2d Dept. 1987); see also Gordon v. Gordon, 278 AD2d 274 (2d Dept. 2000).

Further, while it is arguable that the proceeds of a lottery prize may be considered a marital asset, and subject to equitable distribution, the prize need not be apportioned [*3]evenly. See, Damon v. Damon, 34 AD3d 416 (2d Dept. 2006), which supports the necessity of withholding even partial equitable distribution until the trier of fact has heard all of the evidence at a trial. DRL §236 B (1) (c); Campbell v. Campbell, 213 AD2d 1027 (4th Dept. 1995). A trial court is vested with broad discretion and unless it can be shown that the court improvidently exercised that discretion, its determination should be not disturbed. Alper v. Alper, 77 AD3d 694 (2d Dept. 2010).

Debt that is considered to be marital, as well as assets, need not be equally apportioned but may be distributed in accordance with the factors set forth in DRL §236(B) (5) (d). Lewis v. Lewis, 6 AD3d 837 (3d Dept. 2004).Sums expended after the action's commencement date do not qualify as marital debt. DRL §236 B[1][c]; Zwickel v. Szajer, 45 AD3d 1222 (3d Dept. 2007); Prince v. Prince, 247 AD2d 457 (3d Dept. 1998).

Simply stating, as does plaintiff here, that the debt was incurred during the marriage is not a sufficient basis upon which to make a finding that the debt plaintiff claims is a marital obligation and, as noted above, even if it is a marital obligation, it is not a given that it should be apportioned equally. Nor is it clear plaintiff's share of equitable distribution of marital property will be enough to offset any credits in favor of the defendant arising by reason of any pre-trial distribution of a portion of marital assets.

Based on the foregoing, the motion is denied.

All parties shall appear at the trial before the undersigned at the Supreme Courthouse, 100 Supreme Court Drive, Mineola, NY, on September 20, 2012, at 2:00 p.m. No adjournments of this trial will be permitted absent the permission of or Order of this Court. All parties are forewarned that failure to attend the trial may result in Judgment by Default, the dismissal of pleadings (see 22 NYCRR 202.27) or monetary sanctions (22 NYCRR 130-2.1 et seq.).

In order to prevent unnecessary public attention to the litigants, the caption is hereby amended to identify the parties as J.E. v. T.E.

This shall constitute the Decision and Order of this Court.

E N T E R

DATED: June 1, 2012

_____________________________

HON. DANIEL PALMIERI

Acting Supreme Court Justice [*4]