H.B. v J.B.

[*1] H.B. v J.B. 2006 NY Slip Op 51836(U) [13 Misc 3d 1215(A)] Decided on September 29, 2006 Supreme Court, Nassau County Falanga, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 29, 2006
Supreme Court, Nassau County

H.B., Plaintiff

against

J.B., Defendant.



05-200617

Anthony J. Falanga, J.

Procedural History

The above captioned action for divorce was commenced on March 8, 2005. The husband defaulted and the wife submitted a proposed judgment of divorce. Thereafter, the husband retained counsel, and the wife consented to the vacatur of his default and accepted service of an answer denying the allegations of her complaint.

A preliminary conference was held on October 25, 2005 before the Hon. Joseph Spinola. Justice Spinola set the action down for a bifurcated trial on grounds on December 15, 2005 and then adjourned the trial to January 19, 2006. The action was assigned to the undersigned Justice on January 3, 2006. On January 19, 2006, neither the husband nor his attorney appeared before the undersigned Justice and the action was calendared for a conference on February 8, 2006. Both parties and counsel appeared on February 8, 2006. On that date, the Court granted the wife's application for leave to serve an amended complaint and determined that it would not conduct a bifurcated trial on the issue of grounds.

On or about February 8, 2006, the wife served a demand for a net worth statement, a demand for the production of documents, and interrogatories on the husband's attorney. Pursuant to an order dated February 14, 2006, each party was ordered to pay 50% of the retainer required by Heidi Muckler, CPA to value the wife's medical license. Pursuant to an order dated May 8, 2006, the husband was ordered to pay a retainer to a law guardian of $750.00.

At a conference on May 3, 2006, the Court granted the husband an additional two weeks to serve an affidavit of net worth and responses to the wife's discovery demands.

When both counsel appeared for a conference on June 21, 2006, the husband's attorney advised the Court that he believed the husband had gone to India because one of his parents had become ill and or passed away. Counsel was not certain when the husband had gone to India or when he would return to the United States. [*2]

Pursuant to a motion submitted on June 21, 2006, the wife moved for an order 1) striking the husband's answer; 2) directing the husband to pay his portion of the fee due Heidi Muckler, CPA and 3) awarding the wife counsel fees for costs incurred incident to the instant motion. Said motion was decided, without opposition, by an order dated June 21, 2006 that directed the following, denoted in bold print:1) the husband shall pay the retainer due the law guardian within 30 days of the date of this order. The law guardian shall not provide legal services until such time as the retainer is paid; 2) the husband's appearance and or answer shall be stricken unless he serves a net worth affidavit and responses to the wife's discovery demands and interrogatories, dated February 8, 2006, within 30 days of the date of this order; and 3)in the event the husband's appearance and or answer are stricken, the action will be scheduled for an inquest.

Both parties and their respective attorneys appeared for a certification conference on July 24, 2004. On that date, the husband's attorney advised the Court, on the record, that the husband had failed to comply with the order dated June 21, 2006. Pursuant to an order dated July 24, 2006, the Court declared the husband in default, struck his answer, vacated the order appointing a law guardian, and calendared the action for inquest on August 23, 2006.

On August 21, 2006, the husband brought an order to show cause seeking to stay the inquest and vacate the order dated July 24, 2006. Said order to show cause did not request an ex parte temporary order staying the trial. Said application was not supported by the production of an affidavit of net worth or any other financial disclosure, despite the fact that the action had been commenced on March 8, 2005.

Both parties and counsel appeared on August 23, 2006 and the inquest was commenced and completed. The wife's attorney made an opening statement indicating that the wife was seeking a judgment of divorce on the ground of cruel and inhuman treatment, custody of the parties' son and the minimum statutory child support. Counsel stated that the wife was withdrawing her cause of action for divorce on the ground of constructive abandonment and further advised the Court that the wife was not seeking an equitable share of any assets acquired by the husband during the marriage, nor was she seeking the apportionment of any debt. The wife testified at the inquest and was cross examined by the husband's attorney. At the conclusion of the inquest, the Court reserved decision. Pursuant to an order dated August 30, 2006, the husband's order to show cause dated August 21, 2006 was denied.

Testimony

The parties were married in New Delhi, India on March 14, 1988. The wife, who was 47 years old on the date of the inquest, was 29 years old as of the date of the marriage. She had graduated from medical school in India and was licensed to practice medicine in India in 1983.

In 1990, the wife took an examination to qualify to practice medicine in New Jersey. In 1991, she took a similar examination to qualify to practice medicine in New York. The wife studied for said examinations for a year and a half. She did not work during this time. The [*3]husband worked for a courier service and supported himself and the wife. The husband assaulted the wife in 1991. The parties' son was born on January 3, 1992. The parties separated in January 1992 and did not reside together again until December 1999. In 1994, the wife completed a residency and was licensed to practice medicine in New Jersey. In 1997, she completed a residency and was licensed to practice medicine in New York. The husband did not provide any financial support for the wife or the parties' son after 1991. In December 1999, the parties resumed cohabitation. They lived together for eleven months until November 2000. During that period on five occasions, the husband verbally abused the wife during arguments that took place in their residence. In November 2000, in the presence of the wife, the husband assaulted the parties' son, then eight years old, in the parking lot of a shopping mail, hitting him with his fists and boots. After the parties and child got into their car, the husband again hit the child on the face and head. After a short time, the husband calmed down and the parties drove home. When they arrived home, the husband hit the child on the head with a stick. He then packed up his clothes and went to his brother's house. When the husband returned six days later, the wife asked the husband to leave and he complied. Sometime thereafter, the wife changed the locks on the premises. The child was not bruised or otherwise injured from the assault and did not require medical treatment, but the wife feared for her own and the child's safety after the assault, particularly in view of the husband's assault of the wife that had occurred in 1991. The wife has been the sole caretaker of the parties' son since November 2000. The husband has not written to, telephoned or visited with the child since that date.

The wife is presently employed by P H Services. She earns $135,000.00 a year. In October 2004, she purchased a home for $222,000.00. There is a mortgage on the premises of $176,000.00. She does not presently have a pension. Since 1992, she has accumulated savings of $300,000.00 and a annuity of $200,000.00.

The wife testified that she continuously resided in the State of New York for more than two years prior to the commencement of the action; that there is no other action for divorce pending in any other court; and that she has not been granted a judgment or decree of divorce by any other court. She did not testify that she would take all steps solely within her power to remove any barrier to the husband's religious remarriage following the parties' divorce, but her amended verified complaint, marked into evidence as plaintiff's "1" includes such statement.

Finding of Fact and Conclusions of Law

Grounds

It is well established that a plaintiff seeking a divorce based upon cruel and inhuman treatment must establish that the defendant engaged in a course of conduct which is harmful to the plaintiff's physical or mental well-being and renders cohabitation unsafe or improper (Brady v Brady, 64 NY2d 339; Hessen v Hessen 33 NY2d 406; Habib v Habib, 278 AD2d 277). The proof necessary to prove a cause of action for divorce is measured, in part, by the duration of the marriage ( Brady v Brady, supra). What might be considered " transient discord" in a marriage of long term duration may constitute substantial misconduct in a marriage of brief duration (see, [*4]Brady v Brady, supra; Meltzer v Meltzer, 255 AD2d 497; M.M. v E.M.; 248 AD2d 109; Allwell v Allwell, 252 AD2d 683). Objective proof that plaintiff sustained physical or mental injury is not a prerequisite (see, Hessen v Hessen, supra), nor is there a requirement that the plaintiff produce evidence of medical or psychological treatment ( see, Habib v Habib, supra; Soto v Soto, 216 AD2d 455; Reiss v Reiss, 170 AD2d 589; Rieger v Rieger, 161 AD2d 227).

Although the parties herein were married seventeen years prior to the commencement of the action in March 2005, they lived together for less than one year during the fourteen years immediately preceding the commencement of the action, and had not resided together in over four years as of the date the action was commenced. Generally, a seventeen year marriage would be considered of long duration, and a high burden of proof would be imposed upon a plaintiff to demonstrate misconduct serious enough to support the granting of a divorce on the ground of cruel and inhuman treatment. However, in the case at bar, in view of the brief period of co-residence during the fourteen years immediately preceding the commencement of the action, the Court finds the plaintiff's burden of proof to be that which would be required in a short term marriage (see, Lin v Straub, 282 AD2d 234).

The Court found the wife's testimony at the inquest was completely credible, and based on the applicable burden of proof, same was sufficient to substantiate her cause of action for divorce on the ground of cruel and inhuman treatment. Accordingly, the wife is granted a divorce against the husband on the ground of cruel and inhuman treatment.

Ancillary Issues

The husband and his attorney received timely notice that the action would proceed to inquest (see, Tovar v Tovar, _AD3d_, 2006 WL 2742474), and although the husband was precluded from offering evidence or testifying at the inquest regarding financial issues, the husband's attorney was permitted to cross examine the wife (see, Settembrini v Settembrini, 270 AD2d 408; Baruch v Baruch, 224 AD2d 649; Otto v Otto, 150 AD2d 57).

Custody

The issue of custody was not controverted. The husband never paid a retainer to the law guardian and the law guardian was discharged by the Court before rendering any services. The husband did not provide any support nor participate in the parties' son's upbringing after November 2000. He did not provided financial support since the birth of the child. Since November 2000, the wife has been the sole caretaker of the child. Accordingly, the wife is awarded custody of the parties' son and the husband shall have visitation as agreed on between the parties.

Child Support

There is no information in the record relating to the husband's actual income or ability to earn. He has not provided financial support since the birth of the parties' son on January 3, 1992. The wife testified that she has the financial means to provide for the child's needs and she is [*5]seeking only the minimum statutory child support of $25.00 a month. Absent a claim by the wife that the husband earns income in excess of the federal poverty level, the Court awards the wife the statutory minimum child support pursuant to DRL 240(1-b)(d) of $25.00 a month retroactive to the commencement of the action in March 2005. Commencing October 1, 2006, the husband shall pay child support directly to the wife of $25.00 a month. Arrears shall be paid on or before December 1, 2006. The wife shall provide health insurance for the child and shall pay 100% of his necessary uncovered health expenses. The wife shall also pay 100% of any child care expenses.

Maintenance and Counsel Fees

The wife waived any claim to maintenance and counsel fees. The husband was precluded by order dated July 24, 2006 from offering any testimony or evidence in support of such claims. The Court notes that the parties resided together only eleven months during the fourteen years preceding the commencement of the action and during said fourteen year period, the husband did not seek financial support from the wife (see, Calandra v Calandra, 303 AD2d 704). Accordingly, neither party is awarded maintenance or counsel fees.

Equitable Distribution

Although the husband was precluded from offering financial testimony or other evidence at the inquest, the Court must nevertheless equitably distribute marital assets pursuant to the factors set forth in DRL 236B(5) (see, Beinholz v Beinholz, 184 AD2d 542; Otto v Otto, supra).

The wife had completed her medical education and was a licensed physician in India on the date of the parties' marriage. She did not own any other assets of value as of the date of the marriage. She attained a license to practice medicine in New York State in 1997; she purchased a home in 2004; and she acquired $500,000.00 in savings between 1992 and the date of the inquest. She is employed as a physician earning $135,000.00 a year, and she is likely to maintain her present level of income in the future. She is the sole caretaker of the parties' son and has not received any financial assistance from the husband since the birth of the child. She is solely responsible for all the child's prospective financial needs except for $25.00 a month child support to be paid by the husband as set forth herein. The husband supported the wife for a year and a half, prior to 1992, so that she could devote her efforts to studying for examinations to qualify to practice medicine in New Jersey and New York, but subsequent to 1992, he made no contribution toward the acquisition of marital assets. He provided no significant services as spouse or parent subsequent to 1992, and in fact, the Court finds that there was no "partnership," financial or otherwise between the parties subsequent to 1992.

Accordingly, the Court awards the wife 100% of the home she purchased in 2004 and 100% of her savings. The husband is not entitled to a distributive award for any value of the wife's licenses to practice medicine in New Jersey and New York. Each party is awarded all right, title and interest to assets presently held in his or her name or in his or her possession and or control. [*6]

The wife shall submit a proposed Findings of Fact, a Judgment of Divorce, and all the requisite supporting papers to the Matrimonial Center Intake Office within 60 days of the date of this decision and order. Failure to do so may result in this action being deemed abandoned pursuant to 22 NYCRR 202.48. Notice of compliance with this order shall be forwarded to the undersigned Justice by facsimile to 516-571-0029.

E N T E R:

_________________________

Anthony J. Falanga, Justice

Supreme Court, Nassau County

Dated: September 29, 2006

Mineola, NY