A.B. v D.B.
Annotate this CaseDecided on December 19, 2016
Supreme Court, Queens County
A.B., Plaintiff,
against
D.B., Defendant.
15775/2012
Attorney for Plaintiff
Ursula A. Gangemi, Esq.
The Law Office of Ursula A. Gangemi, P.C.
7820 Third Avenue
Brooklyn, New York 11209
P: (718) 238-8855
F: (718) 238-8853
Attorney for Defendant
Sari M. Friedman, Esq.
Friedman and Friedman
666 Old Country Road, Suite 704
Garden City, New York 11530
P: (516) 222-1030
F: (516) 222-1053
Pam B. Jackman Brown, J.
background
On July 30, 2012, Plaintiff-Wife (hereinafter referred to as "Plaintiff") commenced the above-captioned matrimonial proceeding by the filing of the Summons with Notice, seeking an absolute divorce and ancillary relief. Plaintiff, by and through her counsel, filed the Verified Complaint on October 23, 2013. Defendant, by and through his counsel, filed a Verified Answer [*2]on November 1, 2013. The parties proceeded to trial before this Court on June 1, 2015, July 16, 2015, and January 25, 2016. The issues certified for trial were: (i) Plaintiff's interest in the marital residence of the parties; (ii) Plaintiff's interest in a parcel of land in Covington Township, Pennsylvania; (iii) the equitable distribution of the parties' respective retirement accounts; (iv) the division of student loan debt; (v) Plaintiff's claim for child support and associated add-ons; and (vi) counsel fees. Prior to Plaintiff calling her first witness, the parties stipulated on the record that each party would retain their respective retirement accounts free and clear of any claim by the opposing party.
Following the close of evidence, Plaintiff and Defendant, by and through their respective counsel, submitted post-trial summations in writing to be considered by this Court with an oral Decision to be rendered in court on March 7, 2016. The date for submission of post-trial summations was adjourned until April 29, 2016, with the oral Decision to be provided in court on May 19, 2016. Following the request for a further adjournment, this Court reserved this matter for a written Decision After Trial.
Upon full review of the evidence presented with respect to the issues in this proceeding, including the testimony offered and exhibits received, this Court makes the following findings of fact and conclusions of law.
FINDINGS
/i>
In or about 1988, Plaintiff and Defendant met in Ireland while Defendant vacationed with friends. Despite the distance between them, the parties maintained contact over the next couple of years. On November 28, 1989, Defendant purchased the property generally known as 376 Seabreeze Avenue, Rockaway, New York 11697 (hereinafter referred to as the "Marital Residence") for the amount of $75,000.00. Defendant testified that his parents provided the funds for seventy-five (75%) percent of the purchase price, with the remaining twenty-five (25%) percent, or $18,750.00, coming from a mortgage in Defendant's name.
At the time of purchase, the Marital Residence consisted of a first floor with access to the street (hereinafter referred to as the "Street Level"), and a second floor consisting of a bedroom, bathroom, kitchen, living room and full deck (hereinafter referred to as the "Main Level"). Defendant testified that the Street Level of the Marital Residence contained a "half sand" floor and two-by-four wood walls.
Plaintiff relocated to the United States in December of 1990 and began cohabiting with Defendant in the Marital Residence at that time. The parties were married on August 22, 1992, in New York in a civil ceremony, and later had a religious ceremony on November 14, 1992. At the time of marriage, and through the term of the marriage, Defendant worked as an x-ray technologist. Defendant's 2014 tax return indicates his employment as an x-ray technologist with Maimonides Hospital earning $55,533 in wages. Starting in 1996 and continuing through the present, Plaintiff worked as a flight attendant for Delta Airlines. Plaintiff's updated Statement of Net Worth and 2014 tax return, submitted pursuant to this Court's Pre-Trial Order, indicates an annual income of $66,792.00. The parties have two children, Shannon (D.O.B. 3/18/1993), and Noelle (D.O.B. 12/24/1994). At trial, Defendant testified that around the date of marriage certain renovations were made to the Marital Residence. Specifically, Defendant installed new walls and carpeting to the bedroom, replaced light fixtures, and renovated the Main Level bathroom.
Sometime after 1999 or 2000, the parties renovated the Street Level floor of the Marital Residence. Defendant testified at trial that this renovation included: (i) installation of two [*3]bedrooms with carpeting; (ii) installation of a laundry room; (iii) installation of a bathroom; (iv) installation of an interior staircase connecting the two floors of the property; (v) tiling of floors; and (vi) all attendant electrical, plumbing, sheet-rocking, and insulation. Defendant testified that he withdrew approximately $15,000 from his credit union account to fund the Street Level renovation. Plaintiff's witness, Frederick Sebade, a neighbor of the parties during the time of the renovation, testified at trial that during the Street Level renovation Plaintiff "[ran] the show" and that Mr. Sebade, a contractor by trade, on a daily basis conferred with Plaintiff to discuss dealing with the contractor, the layout of the floor plan, and the day-to-day operations of the renovation. Mr. Sebade further testified that Plaintiff did "everything around the house," including shoveling the snow, making repairs to the house, cleaning, etc. Mr. Sebade testified that all of his communications regarding the Street Level renovation were between himself and Plaintiff, never Defendant, and that he did not see Defendant assisting in the renovation or clean-up.
In or about September of 2005, the parties acquired a piece of improved real property located at 2-50 Lake Drive North, Covington Township, Pennsylvania (hereinafter referred to as the "Pennsylvania Property"). Defendant's submissions indicate the purchase price of the plot of land and the accompanying trailer were $15,632.17 and $8,520.00, respectively, for a total price of $24,152.17. The Pennsylvania Property consists of a trailer home, an adjoining deck, and a shed. At trial, Defendant testified that the funds for the purchase price of the Pennsylvania Property came from his mother as a gift. In support of his claim, Defendant entered into evidence cashier checks, banking withdrawal slips, and personal checks pertaining to the purchase of the Pennsylvania Property. However, Defendant testified that the property is held jointly with Plaintiff, and did not call either of his parents, to the extent they are available, to testify as to their intentions. Defendant's expert, Conrad Bosley, a certified real estate appraiser in the Commonwealth of Pennsylvania, testified at trial and submitted an appraisal into evidence which indicates a fair market value of $15,000.00 for the Pennsylvania Property, as of October 27, 2014. Plaintiff did not submit a counter-appraisal to contest Mr. Bosley's findings.
In 2009, the parties renovated the Main Level of the Marital Residence (hereinafter referred to as the "2009 renovation"). The 2009 renovation included the complete demolition of the Main Level, with the installation of new walls, ceilings, heating, insulation, floors, electrical work, as well as new appliances. As testified by both Plaintiff and Defendant, Plaintiff paid for the 2009 renovation by borrowing $20,000.00 from her Delta Community Credit Union. Plaintiff testified that at the time of trial the loan had been paid back in full. Defendant testified that at no point did he consent to the 2009 renovation, nor was he privy to the planning of said renovations. Rather, Defendant contends that "[I] came home one day and all my furniture was out on the back deck and the house was being torn apart there was no discussion about [the 2009 renovation] happening because if [Plaintiff] said anything to me, I would have said 'no' at the time." Plaintiff testified to Defendant having knowledge and approval of the 2009 renovation. Despite Defendant's allegations of lack of consent and/or knowledge, the parties and their children resided with Defendant's parents during the 2009 renovation.
Plaintiff commenced the instant action on July 30, 2012 and vacated the Marital Residence in September of 2012. Tragically, shortly thereafter, Superstorm Sandy essentially destroyed the Marital Residence in October of that year. It is undisputed that the fair market value of the Marital Residence post-Sandy was $75,000.00. Following the destruction caused by Superstorm Sandy, the Federal Emergency Management Agency (hereinafter referred to as "FEMA") sent an inspector to assess the damage to the Marital Residence. Subsequently, [*4]FEMA provided $28,000.00 to the parties in relief funds. During the first day of trial on June 1, 2015, Defendant testified that he retained Habitat for Humanity to restore the Marital Residence, and that at that time, he had exactly $3,000.00 in FEMA funds remaining. At trial, Defendant further testified that the roof and deck still required restoration.
According to Defendant's testimony, the parties' older daughter, Shannon, resided with Defendant from July 2012 through May of 2013, at which time Shannon agreed to assist Plaintiff in supervising her younger sister, Noelle, at Plaintiff's residence. Defendant's 2014 tax return lists Shannon as a member of Defendant's household, and claims an educational credit for Shannon's enrollment with the City University of New York (hereinafter referred to as "CUNY"). Shannon turned twenty-one (21) years old on March 18, 2014. Defendant further testified that the parties' child, Noelle, resided, at least temporarily, with her boyfriend and his grandmother post-Hurricane Sandy. Defendant testified at trial that Noelle works as a hostess for Gino's Restaurant for 30—36 hours per week at Ten ($10.00) Dollars per hour, and supplements this income by working at an establishment called the "Sugar Shack" for roughly twenty-one hours per week. At the commencement of trial, Noelle was again living with Plaintiff. Noelle turned twenty-one (21) years old on December 24, 2015. Defendant testified that the parties' children pay rent and/or provide other financial support to Plaintiff. Plaintiff did not dispute this testimony during her examination.
DECISION
Equitable Distribution
Plaintiff's interest in the Marital Residence
Plaintiff seeks equitable distribution of the Marital Residence. As aforementioned, Defendant purchased the Marital Residence in 1989, three (3) years prior to the date of marriage. Plaintiff concedes that Defendant purchased the Marital Residence prior to marriage, and is therefore, presumed to be separate property of Defendant. However, Plaintiff is seeking fifty (50%) percent of the Marital Residence's appreciation in value during the marriage, which she claims resulted from her monetary and nonmonetary contributions.
Domestic Relations Law (hereinafter referred to as "DRL") § 236(B)(5) governs the distribution of property in an action for divorce. Specifically, DRL § 236(B)(5)(a) provides that the court "shall determine the respective rights of the parties in their separate or marital property," and that "separate property shall remain as such," and "marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties."
DRL § 236 goes on to define separate property as: "(1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse; (2) compensation for personal injuries; (3) property acquired in exchange for the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse; and (4) property described as separate property by written agreement of the parties ." Marital property is defined as "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held ."
In addition, DRL § 236(B)(1)(d)(3) provides that appreciation in the value of separate property shall remain separate property, "except to the extent such appreciation is due in part to the contributions or efforts of the other spouse." See DRL § 236(B)(1)(d)(3); see also Bernholc v [*5]Bornstein, 72 AD3d 625, 628 (2d Dep't 2010). As set forth by the New York Court of Appeals in Price, and its progeny, Kilkenny and Bernholc, appreciation in value of separate property is nonetheless subject to equitable distribution, so long as the appreciation was "due in part" to the economic or noneconomic contributions of the nontitled spouse. See Price v Price, 69 NY2d 8, 17—18 (1986); see also Kilkenny v Kilkenny, 54 AD3d 816, 818—19 (2d Dep't 2008); see also Bernholc, 72 AD3d at 628.
In the event a nontitled spouse is seeking a distributive award from an appreciation in value of separate property, it is incumbent upon the nontitled spouse to establish: (i) an increase in value of the separate property; (ii) the manner in which their contributions resulted in the increase in value; and (iii) the amount of the increase which was attributable to the nontitled spouse's efforts. See Fitzgibbon v Fitzgibbon, 161 AD2d 619, 619 (2d Dep't 1990); see also Robinson v Robinson, 166 AD2d 428, 433—34 (2d Dep't 1990) (Balletta, J., concurring and dissenting opinion, "this court held that in order to obtain equitable distribution of the appreciation in value of the marital residence, the plaintiff was required to demonstrate the manner in which his contribution resulted in the increase in value and the amount of the increase which was attributable to his efforts.").
There is no dispute that Defendant acquired the Marital Residence prior to the marriage, and therefore, is Defendant's separate property. As a result, in her claim for equitable distribution of the Marital Residence, Plaintiff bears the burden of proving that the Marital Residence appreciated in value during the marriage, the amount of its appreciation, and that said appreciation was due to Plaintiff's economic and/or noneconomic contributions. Plaintiff has failed to meet this burden.
At trial, Plaintiff, as well as witnesses Frederick and Kathryn Sebade, testified at length about Plaintiff's contributions to the Marital Residence. Specifically, the testimony revealed that Plaintiff provided noneconomic contributions to the Marital Residence by making minor repairs, cleaning, shoveling snow, and other general activities necessary for the upkeep of a property. Moreover, Plaintiff provided economic contributions by paying Twenty Thousand ($20,000.00) Dollars to renovate the Main Level of the Marital Residence. Fatal to her claim, however, is the fact that Plaintiff failed to provide any evidentiary support that (1) the Marital Residence appreciated in value during the pendency of the marriage, and (2) Plaintiff's contributions caused said appreciation. In fact, neither Plaintiff nor Defendant offered a single appraisal of the Marital Residence into evidence, regardless of the place in time. Therefore, Plaintiff has failed to prove that the Marital Residence appreciated in value during the marriage, or that her contributions resulted in said appreciation, if any.
Accordingly, Plaintiff's request for equitable distribution in the appreciation of the Marital Residence is denied.
However, separate and apart from Plaintiff's claim for equitable distribution, is her claim for a mortgage credit. As stated by the Second Department in Khan and Bernholc, "where marital funds are used to pay off the separate debt of the titled spouse on the separate property, the nontitled spouse may be entitled to a credit." Such a credit is not related to any appreciation in value, but rather serves to "remedy the inequity created by the expenditure of marital funds to pay off separate liabilities." Khan v Ahmed, 98 AD3d 471, 72—73 (2d Dep't 2012).
At trial, Defendant testified that he purchased the Marital Residence in 1989 with funds provided by his parents and a mortgage in his name. According to Defendant's testimony, his [*6]parents provided seventy-five (75%) percent of the purchase price, or $56,250.00, and the remainder of the purchase price was paid by a mortgage in the amount of roughly $18,750.00.
It is undisputed that from the time the parties began to cohabitate in the Marital Residence in or about 1990, to the date of separation in or about September of 2012, that the parties shared in the marital expenses, including, but not limited to the monthly mortgage payment. Both parties testified as to their respective funds being deposited into one or several joint accounts throughout the marriage, from which the monthly bills would be paid. During her direct examination, Plaintiff testified that the monthly mortgage payment amounted to $522.11, with the mortgage being satisfied during the marriage.
The Court notes, however, that Plaintiff did not submit mortgage statements indicating the outstanding principal balance of the mortgage at the time of marriage and the date of commencement, nor did she provide testimony with regards to those amounts. Rather, Plaintiff stated that throughout the marriage, marital funds were used to pay the monthly mortgage payment of $522.11. The parties satisfied the mortgage obligation during the marriage.
Despite the lack of evidence submitted by the parties, such as the original mortgage documents, mortgage statements indicating the outstanding principal obligation as of the date of marriage and the date of commencement, and the eventual satisfaction of mortgage filed by the mortgagee, some of which, the Court notes, are likely available on the Automated City Register Information System, or ACRIS, the parties did not dispute that marital funds were applied to reduce Defendant's separate indebtedness. Plaintiff and Defendant testified that their incomes were deposited into a joint account. When questioned as to who paid the monthly bills, Defendant responded "my wife." Plaintiff credibly testified that the monthly mortgage payment for the Marital Residence was $522.11. Plaintiff further testified during examination that she lived in the Marital Residence for "fourteen years of that mortgage." This was not disputed by Defendant.
Accordingly, it is hereby
ORDERED, that Plaintiff is entitled to recoup from Defendant fifty (50%) percent of the principal mortgage reduction from the date of marriage to the date of commencement of this action, or date of satisfaction of the mortgage.
Plaintiff's interest in the Pennsylvania property
Plaintiff further seeks equitable distribution of the parties' Pennsylvania Property. During testimony and in his post-trial summation, Defendant asserts that the funds to purchase the Pennsylvania Property were a gift from his mother to him solely, and therefore, is his separate property.
As aforementioned, DRL § 236 defines marital property as "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of the matrimonial action, regardless of the form in which title is held." DRL § 236; see also Fields v Fields, 15 NY3d 158, 161—62 (2010). It is well-settled that the term "marital property" and its definition under DRL § 236 should be "construed broadly in order to give effect to the 'economic partnership' concept of the marriage relationship." Fields, 15 NY3d at 162—63; see also Price, 69 NY2d at 15.
DRL § 236 creates a statutory presumption that "'all property, unless clearly separate, is deemed marital property' and the burden rests with the titled spouse to rebut that presumption." Id. at 163.
It is undisputed that the parties acquired the Pennsylvania Property during the marriage in 2005. Neither party submitted the deed, contract of sale, or other relevant documents pertaining to the Pennsylvania Property. However, Defendant testified that the parties hold title jointly, which is also indicated in his Statement of Net Worth submitted into evidence. Plaintiff submitted an appraisal of the Pennsylvania Property and called upon Conrad Bosley to testify. Mr. Bosley testified that the fair market value of the Pennsylvania Property was $15,000.00, as of October 27, 2014. Despite Defendant testifying that the property was at one point facing foreclosure, neither Defendant nor Plaintiff submitted evidence of any encumbrances or liens on the Pennsylvania Property.
At trial, Defendant testified that the funds used to purchase the Pennsylvania Property, roughly $25,000.00, were provided as a gift by his mother to Defendant solely. In support of his separate property claim, Defendant submits two (2) cashier checks in the amounts of $15,632.17 and $8,520.00, or $24,152.17 collectively, made payable to ELCA Development Corp., a Certificate of Deposit withdrawal slip dated September 8, 2005 in name of Defendant's mother, Margaret Baatz, and a personal check dated August 15, 2005 made payable to ELCA Development Corp. by Joseph and Margaret Baatz in the amount of $500.00.
Here, Defendant has failed to rebut the presumption that the Pennsylvania Property be deemed marital property. The parties purchased the Pennsylvania Property during the marriage in 2005. By Defendant's own testimony and submissions, the Pennsylvania Property is jointly held. The only iota of evidence that could arguably be in favor of Defendant's separate property claim is that the memo portion of the personal check issued by Defendant's parents reads "For Danny." However, the personal check in question is not even for the purchase price of the Pennsylvania Property. Notably, Defendant did not call either of his parents to testify as to their intentions for providing the purchase price of the Pennsylvania Property, nor did he supply any additional support for his claim.
Accordingly, Plaintiff's claim for equitable distribution of the Pennsylvania Property is granted, and shall receive fifty (50%) percent of any equity remaining after the satisfaction of any properly filed and recorded mortgages, liens, encumbrances, or judgments.
Outstanding Student Loans
Defendant seeks for Plaintiff to contribute fifty (50%) percent of the outstanding balance on a student loan taken out on behalf of the parties' child, Shannon. Defendant testified that the outstanding balance is roughly $12,000.00. Defendant testified that the subject loan is in his name solely, not as co-signor, and that he only signed the loan documents at the behest of Plaintiff. To date, no payments have been made to the loan under Defendant's name. In response, Plaintiff states that she, herself, has taken out four (4) student loans on behalf of Shannon, and that the aggregate amount of these loans are in excess of $12,000.00, as well.[*7]Moreover, Plaintiff's expenses in her Statement of Net Worth, dated April 27, 2015, indicate a monthly college expense of $833.00.
Defendant testified that he was unaware that he was signing a loan in his name, but rather thought he was co-signing with his daughter. However, Defendant admitted during examination that Plaintiff asked him to sign the loan documents and he did so because "he trusted her."
It is well-settled that expenses incurred prior to the commencement of the divorce action are marital debt and are to be shared equally. See Epstein v Messner, 73 AD3d 843, 845 (2d Dep't 2010). College expenses or debt which arise for the benefit of the parties' child or children are deemed marital debt. See Sawin v Sawin, 128 AD3d 589, 593 (2d Dep't 2015).
Defendant testified during trial that he signed the loan documents because he wanted his daughter to go to college. Defendant further clarified that he did indeed sign the original loan documents, and did not provide any evidence that he only signed the loan documents as a result of fraudulent or deceitful conduct on behalf of Plaintiff.
Accordingly, it is hereby
ORDERED, that Plaintiff and Defendant shall share equally in all student loan obligations incurred by the parties during the marriage.
Child Support & Add-Ons
In Plaintiff's Post-Trial Memorandum of Law, Plaintiff seeks child support for both of the parties' children from January 1, 2013 through March 18, 2015, and for one child from March 18, 2013 through December 24, 2015. Shannon turned twenty-one (21) years old on March 18, 2014. Noelle turned twenty-one (21) years-old on December 24, 2015.
DRL § 240 (1-b) codifies the Child Support Standards Act (hereinafter referred to as "CSSA"). CSSA provides a numeric formula for calculating child support awards. The Court must calculate each party's annual income. According to DRL §240(1-b)(b)(5), income is defined as gross (total) income as should have been or should be reported in a party's most recent federal tax return, investment income reduced by sums expended in connection with such investment, to the extent such income is not reported on the party's tax return, income or compensation voluntarily deferred and income received from workers' compensation, disability benefits, unemployment insurance benefits, social security benefits, veteran benefits, pension and retirement benefits, fellowships and stipends and annuity payments. DRL § 240(1-b)(5)(iv) grants the court discretion to impute or attribute income from other resources if there is insufficient evidence to determine income.
Plaintiff commenced the instant action on July 30, 2012, and vacated the Marital Residence in September of 2012. Unfortunately, Hurricane Sandy struck New York in October of 2012 and destroyed the Marital Residence, thereby displacing this family. According to Defendant's testimony, the parties' elder child, Shannon, resided with Defendant from July of 2012 through the May of 2013, and thereafter resided with Plaintiff up until and after her emancipation on March 18, 2014. The parties' younger child, Noelle, purportedly resided with her boyfriend and his grandmother immediately following Hurricane Sandy, and then began to reside with Plaintiff. Defendant is unaware of when exactly Noelle began residing with Plaintiff in 2013. Plaintiff did not [*8]provide any testimony regarding the children's residences, let alone testimony that controverted Defendant's aforementioned timeline of events. Notably, in their respective 2014 tax returns, Plaintiff claimed Noelle as a dependent and Defendant claimed Shannon as a dependent.
Based upon the parties' submissions, specifically their Statements of Net Worth, reported expenses, most recent tax returns, and testimony, the Court determines Plaintiff's annual income to be $66,792.00, and the Court shall impute income to Defendant in the amount of $45,500 annually.
The applicable child support percentage pursuant to the CSSA for two children is twenty-five (25%) percent, and the applicable percentage for one child is seventeen (17%) percent.
In light of the limited testimony and evidence presented to the Court with respect to the children's whereabouts during the period between July of 2012 and the present, there are only three separate timelines that are discernable for any ultimate child support award: (1) the period of September 2012 through May of 2013 when Shannon resided with Defendant; (2) the period of May of 2013 through Shannon's emancipation on March 18, 2014, during which both children resided with Plaintiff; and (3) the period of March 18, 2014 through Noelle's emancipation on December 24, 2015, during which Noelle resided with Plaintiff.
As it pertains to the first period, the parties' combined income amounts to $112,292.00. Multiplied by the applicable percentage of 17% amounts to an annual award of $19,089.64. Plaintiff's and Defendant's respective pro rata share is 60% and 40%, making Plaintiff's annual child support obligation to Defendant $11,453.78 or $954.48 monthly. However, by Defendant's own testimony, Shannon only resided with Defendant from September of 2012 through May of 2013. Accordingly, Plaintiff's presumptive child support obligation to Defendant for this period amounts to $8,590.32.
For the second period, both Shannon and Noelle resided with Plaintiff. Applying the same combined annual income of $112,292.00 to the applicable percentage of 25% amounts to $28,073.00. Defendant's pro rata share of said amount equals $11,229.20 annually or $935.76 monthly. However, Shannon turned 21 years old on March 18, 2014 and is thereby emancipated, accordingly, Defendant's presumptive child support obligation for the second period amounts to $9,357.60.
Last, Noelle resided with Plaintiff from March 18, 2014 to December 24, 2015, or one year and nine months. Applying the same combined parental income to applicable percentage of 17%, Defendant's presumptive child support obligation amounts to $13,361.89 for the third period.
Despite the aforementioned, the Court takes note of the tumultuous times this family has experienced since the filing of the instant action. Most notably, the Marital Residence, where the parties and their children resided since 1990, being entirely destroyed by Hurricane Sandy and completely decimating the nucleus of this family. Post-Sandy, each party and individual child bounced from residence to residence before [*9]the Marital Residence could be restored and Plaintiff and Defendant could attain suitable lodging.
Moreover, Defendant testified to the employments of both S.B. and N.B., both currently and prior to their emancipation. Defendant testified that both children are gainfully employed and provide monthly funds to Plaintiff. Plaintiff did not dispute this testimony.
In addition, Plaintiff requests that Defendant be required to pay fifty (50%) percent of college expenses, up to the SUNY cap, for the parties' younger child, Noelle. Defendant opposes said request.
DRL § 240(1-b)(c)(7) that "Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses." In the absence of an agreement by the parties, the court may exercise its discretion in directing a non-custodial parent to pay a portion of college expenses. See Crispino v Crispino, 2010 NY Slip Op 52364(U)(Sup. Ct. Queens Cty. 2010). "In exercising its discretion, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children and the requirements of justice." Id.
Throughout the course of the marriage, and up to the present, the parties are a modest-income family. Defendant states that his annual income at the present is roughly $20,000.00 to $25,000.00, with annual expenses of $45,483.00. Plaintiff lists her annual income as $66,792.00, with annual expenses of $48,357.00. Neither party submitted evidence with respect to their respective education levels, with the sole exception of listing "college" in section of (I)(p) of their respective Statements of Net Worth. In addition, Defendant testified that Noelle works full-time and is financially emancipated. Plaintiff did not dispute this testimony.
The Court also notes that the parties and their children have endured significant financial hardship since the impact of Hurricane Sandy, and according to testimony, are still in the process of recuperating. Therefore, Plaintiff's request for Defendant to pay 50%, up to the SUNY cap, for Noelle's college expenses is denied.
ORDERED, that Plaintiff's request for retroactive child support is denied; and it is further
ORDERED, that Plaintiff's request that Defendant pay 50% of Noelle's expenses, up to the SUNY cap, is hereby denied.
Custody and Visitation
The children are all over the age of 18 years, as such, there are no issues of custody and/or visitation.
Maintenance
Both parties have waived their rights to maintenance. Both parties are in good health and self-supporting.
[*10]Pension and Retirement Accounts
At trial, both parties stipulated and agreed that they will both keep their individual retirement or pension accounts and neither is seeking any distributive award.
Satisfaction of DRL § 255
Both parties have acknowledged that they are aware that they will be responsible for their individual health coverage after the judgment of divorce is signed.
Counsel Fees
DRL § 237 provides that in an action for a divorce, the court may award counsel fees "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 the respective parties." See Prichep v Prichep, 52 AD3d 61 (2d Dep't 2008). Indigence is not a prerequisite to an award of counsel fees pursuant to DRL § 237. See DeCabrera v Cabrera-Rosete, 70 NY2d 879 (1987). In considering an application for an award of counsel fees, the court shall consider the "equities and circumstances" of the case before it. Basile v Basile, 122 AD2d 759 (2d Dep't 1986). An award of reasonable counsel fees in a matrimonial action is a matter within the discretion of the trial court. See DRL § 237.
In the instant case, Defendant's most recent Statement of Net Worth, dated April 1, 2015, indicates a gross annual income of $20,000.00 to $25,000.00. Defendant's Statement of Net Worth also indicates only $500 in debt, with no liens or encumbrances on either the Marital Residence or Pennsylvania Property. However, it does list his annual expenses as amounting to $45,483.00. The 2014 tax return submitted by Defendant indicates annual wages of $55,533.00.
Pursuant to this Court's Pre-Trial Order dated March 23, 2015, Plaintiff's counsel submitted an updated Statement of Net Worth, dated April 27, 2015. Said Statement of Net Worth, and the 2014 tax returns attached thereto, indicate Plaintiff's annual income to be $66,792.00, with annual expenses amounting to $48,357.00.
Following the conclusion of trial, Defendant's counsel submitted an Affirmation in Support of Defendant's Counsel Fee Request, dated April 21, 2016. Defendant's counsel's affirmation outlines the various alleged delays and/or dilatory tactics caused by Plaintiff and her counsel including, but not limited to agreeing to a neutral appraiser for the Pennsylvania Property, but not stipulating to the neutral appraiser's report being entered into evidence. Moreover, the Court notes that Plaintiff continued with an appreciation claim against the Marital Residence, and then failed to enter a single appraisal into evidence to substantiate any appreciation. The Court notes that a day of trial had been vacated due to Plaintiff's counsel's unavailability for which Defendant's counsel appeared. Also, on July 16, 2015, Plaintiff, by and through her counsel, filed an emergency application to further stay the trial in order to attain an updated appraisal of the Marital Residence or enforce a prior stipulation of the parties regarding valuation.
In light of the aforementioned, it is hereby
ORDERED, that Defendant is awarded $2,500 in counsel fees, which is to be paid by Plaintiff to Defendant's counsel within ten (10) days of the entry of the Judgment of Divorce.
Grounds
The parties were married on August 22, 1992 in a civil ceremony, and took part in a religious ceremony on November 14, 1992. A judgment of divorce pursuant to DRL § 170(7) is granted to Plaintiff after the submission of the final papers and signing of the judgment of divorce. The requirements of DRL § 230 are satisfied. Plaintiff shall be responsible for removing any and all barriers towards Defendant's remarriage, pursuant to DRL § 253. Neither party is in the military or dependent on anyone in the military.
Enter Judgment on Notice.
Submit final papers consistent with this decision and Order within sixty (60) days of Notice of Entry.
Dated:December 19, 2016
Queens, New York
So Ordered:
______________________________
Hon. Pam Jackman Brown, J.S.C.
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