Long v Long

[*1] Long v Long 2011 NY Slip Op 52549(U) Decided on September 1, 2011 Supreme Court, Monroe County Dollinger, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 1, 2011
Supreme Court, Monroe County

Thomas W. Long, Plaintiff,

against

Geraldine L. Long, Defendant.



1987/7755



Edward L. D'Amico, Esq.

Attorney for Plaintiff

1171 Titus Avenue

Pittsford, New York 14617

Jon E. Bonavilla, Esq.

Culley, Marks, Tannebaum & Pezzulo

Attorney for Defendant

36 W. Main Street, Ste. 500

Rochester, New York 14614

Richard A. Dollinger, J.

In this application, the retired plaintiff seeks to modify his non-durational maintenance obligations to his now infirm and Medicaid-supported former spouse. The plaintiff/husband argues that he is enduring an "extreme hardship" from the continued enforcement of this longstanding obligation, and that circumstances have changed to justify a modification. In this Court's view, this case asks an unanswered question in New York: when a spouse becomes a public charge, should a long-term maintenance agreement be modified to relieve the payor of his obligations, if such payments are made indirectly to the government and provide no benefit to the spouse?

The parties' divorce decree was entered on July 9, 1987. In December 1985, the parties signed a separation agreement, which was subsequently incorporated but not merged into the decree. The husband agreed to pay non-durational maintenance payments of $160.00 per week until the wife remarried, and provide medical insurance for a five-year period following the divorce. He paid, faithfully, for more than 20 years.

The husband retired from full-time employment with New York State in October 1998, but continued to work part-time installing carpets. Recently, the husband has suspended his part-time employment because of health issues. A retirement pension and social security are now the husband's only sources of income. As the husband's second job income declined because of his own infirmities, his maintenance payments became sporadic. As of the filing of this application, $10,183 of unpaid maintenance obligations have accrued. [*2]

The wife, now 72, is permanently disabled and currently resides at Monroe Community Hospital, where Medicaid will cover the costs of her care for the foreseeable future. Because the wife is disabled and publicly-supported, the husband now seeks to modify his non-durational maintenance and either discontinue the payments or significantly reduce them. In a statement of net worth, prepared by his accountant, the husband contends that "there has been a significant change in my financial circumstances and my financial ability to provide the support as ordered." The statement shows that the husband owns a $135,000 house encumbered by a $126,448 mortgage. He has monthly income from his pension and social security totaling $5,470. In his monthly expenses, he lists the mortgage payment at $1,140. In addition, he has what appears to be credit card charges and associated consumer debt totaling more than $1,500 monthly.[FN1] There is no explanation in the statement as to how the personal consumer-related debt accrued, but if this amount is deducted from his expenses, his monthly usual expenses are substantially less than his $5,470 income, and could easily accommodate the estimated $640 per month in maintenance payments to his wife.

This Court also notes that there is a disparity in the husband's income based on his statements before the Court. In his affidavit submitted January 27, 2010, the husband indicated his income was $4,755. In his later "financial statement" prepared by an accountant, his income is nearly $1,000 higher. These discrepancies make it difficult to rely on the husband's income and cast doubt on his financial representations.

In addition to the financial statement, the husband offers a letter from the County of Monroe's County Attorney, which indicates that the amount of unpaid maintenance would be collected by the County in a subsequent proceeding. The letter also makes it clear to this Court that the County, in computing the wife's available income for purposes of "cost sharing," includes the court-ordered maintenance payments. The letter indicates that the County's hospital bill for Medicaid would, even if there was no direct assignment of the wife's right to collect maintenance, at some point, be referred to the County's collection agency. In short, as this Court reads the letter, the County intends to collect the maintenance payments for the wife, unless this Court concludes that the husband is entitled to a reduction in maintenance payments as a matter of law.

In opposition to the modification, the wife responds through her brother, who holds a general power of attorney. He avers that his ward, the defendant/wife, had a stroke in 2009, is diabetic, requires dialysis, suffered an amputation and now only moves about in a wheelchair. The attorney also alleges that as a consequence of the husband's failure to pay maintenance, the wife has had to sell other assets to pay for her medical care. The only income received by the wife is $805 per month in social security benefits. At the time of the filing of her statement of net worth, she had less than $6,000 in the bank, no assets other than old jewelry and some furniture in storage. The husband, in his reply papers, [*3]avers that he paid off the mortgage on the marital residence, even though not required by the agreement, and was never reimbursed by the wife. The marital residence was deeded to his wife under the agreement. He also notes that a reduction in maintenance will not impact on his former wife's care at the County hospital. Significantly, this Court earlier issued an order granting the wife arrears in maintenance through the date of the original order to show cause to modify the maintenance and requiring accelerated payments to make up the arrears.

Initially, this Court has been asked to modify the husband's maintenance obligations without knowing the circumstances under which the original obligation was calibrated. A thin record, sparse on details relating to the circumstances of the parties at the time of the agreement or the entry of the decree, further complicates matters. When addressing a request for maintenance modification, a court can often reassesses the DRL § 236(B)(6)(a) factors that gave rise to the original order. See Reed v. Reed, 55 AD3d 1249, 1251 (4th Dept 2008). However, based on the sparse factual record before the Court, it is unclear what factors (if any) within DRL § 236(B)(6)(a) were particularly relevant or utilized by the parties or the Court when the original maintenance obligation was implemented.[FN2] In other cases, the courts have considered the size of a distributive award and the spouse's share of retirement benefits in fashioning maintenance awards with limited duration and denied applications for lifetime maintenance. Charles v. Charles, 53 AD3d 468, 469 (2d Dept 2008). There is no evidence of those factors in this case.

When addressing the duration of a maintenance order, New York courts generally have required non-durational maintenance when it is unlikely that the obligee spouses will be able to support themselves in the future. Cordell, 267 AD2d 1049 (4th Dept 1999); Behrmann v. Behrmann, 204 AD2d 1076 (4th Dept 1994). In this application, the husband has not alleged error in the original non-durational maintenance award. In the absent of evidence to the contrary in the record, the Court can only conclude that a non-durational award was appropriate.

The Court reluctantly draws this conclusion. The customary procedure when addressing a maintenance modification request is to identify the primary factors underlying the original obligation, and assess how those factors have changed overtime. The Court then assesses the current circumstances and determines whether an extreme and unforeseen hardship exists sufficient to justify a modification.[FN3] The exercise is futile here because the Court has little detail of the circumstances surrounding the original agreement and a reliable comparison between then and now is not possible.

The Court does note that, if it were considering maintenance de novo, it would be required to consider the "reasonable needs of the recipient spouse" and the "health of the [*4]parties" as an aspect of any maintenance award. Hartog v. Hartog, 85 NY2d 36, 51-52 (1995); Litvak v. Litvak, 63 AD3d 691 (2d Dept 2009). These factors would amply merit a maintenance award for the wife in this instance. The husband suggests that his wife's needs are not being improved by maintenance payments that will only be used to offset the government's cost to continue her health care. This argument suggests that the government should be substituted as the sole "maintenance payor."The Court declines this substitution, as it would boldly contradict New York's public policy favoring spousal support when an individual may become — or, as in this case, already has become — a public charge.

In New York, modification of a maintenance obligation is permissible only when compliance with the order creates an "extreme hardship" for the obligated spouse. DRL § 236(B)(6)(a); Pintus v. Pintus 104 AD2d 866, 867-868 (2d Dept 1984). The party seeking modification bears the burden of proving extreme hardship. Pintus at 868. DRL § 236(B)(6)(a) . Soba v. Soba, 213 AD2d 472, 473 (2d Dept 1995). When assessing the merits for maintenance modification, the court must assess the cause of the hardship. See Fendsack v. Fendsack, 290 AD2d 682, 684 (2d Dept 2002). Anticipated retirement alone, however, cannot be a catalyst for downward modification. Id at 684; Di Novo v. Robinson, 250 AD2d 898, 899 (3d Dept 1998) (voluntary actions resulting in a diminished income does not warrant downward modification of a maintenance obligation).

The husband voluntary retired from full-time employment in late 1998, but continued to work part-time until a back ailment forced a second retirement. There is no evidence before the Court on the amount of income lost to the husband as a consequence of his retirement from his second job. Nevertheless, in the absence of any data substantiating the loss of income due to his second retirement, modification of maintenance by this Court is improper. Due to the age of the husband and the physically demanding nature of installing carpets, eventual retirement from all employment must have been anticipated. Therefore, this Court is not concerned with the loss of income due to cessation of the husband's part-time employment for modification purposes. See McKeown v. Woessner, 249 AD2d 396, 397-398 (2d Dept 1998). Moreover, the husband continues to enjoy sizable pension distributions, augmented by social security income.[FN4] The Court also notes that a large portion of the husband's monthly expenditures are related to consumer credit counseling services, suggesting much of the husband's financial woes are self-inflicted. See Kaplan v. Kaplan, 23 Misc 3d 1123A (Sup. Ct. Nassau Cty 2009) (self-imposed loss of income or increased debt does not constitute a severe hardship sufficient o justify a modification). Accordingly, it is difficult for this Court to see how the alleged fiscal crisis of the husband is relevant for maintenance modification purposes. Unpaid general creditors should not displace the former spouse in the hierarchy of the husband's payment obligations.

Finally, the maintenance payments comprised less than 15 percent of the husband's total income. And the payments are tax-deductible to the husband, which means that [*5]some portion of these payments are indirectly financed by the federal and state governments, the same entities that are paying for his ex-wife's health care. By making the maintenance payments tax-deductible, the government is tax-financing the offset to government funded healthcare for the ex-wife. There is also no evidence that the continuing maintenance payments would diminish his ability to maintain his lifestyle. Taylor v. Taylor, 83 AD3d 815 (2d Dept 2011) (modification denied when there was no evidence of any lifestyle changes occasioned by an alleged downturn in the economy). There is no evidence that continued payment of maintenance would bring the husband below the poverty line or compel him to liquidate assets or incur huge unmanageable debt. V.P. v. C.P., 2011 NY Misc LEXIS 3898 Sup. Ct. Nassau Cty. 2011) (Overturning a modification of monthly maintenance from $2,400 to $2,000 because the "extreme hardship" test was not met, even though "infirmities of age" and reduced ability to earn had lowered payor's income. "Extreme hardship is not merely the medical consequence of a maturing life but its plain meaning calls for a substantial dislocation of the financial circumstances so that the litigant is nearly without resources or shelter"). For these reasons, the husband's stressed financial condition as contained in his application does not meet the test of an "extreme hardship" sufficient to justify a modification of his agreed maintenance obligation.

Next, the husband argues that the wife's Medicaid benefits create a substantial change in circumstances that reduce the wife's dependence on maintenance income. In essence, the husband argues that his maintenance payments provide only a fraction of the wife's medical costs and, hence, his payments are a subsidy to government support for his

ex-wife and should be either erased or substantially reduced after more than 20 years of payments.

The Court begins its assessment of this argument with an analysis of the federal medical assistance statutes. It is undisputed that Congress intended Medicaid to function only as a last resort for parties with no other means to cover their health care costs. State Medicaid programs have operational autonomy, but must comply with federal guidelines to receive federal funding. 42 U.S.C.A. § 1396a(a). Notably, a state participating in the Federal Medical Assistance program is obligated to take reasonable measures to determine the legal liability of third parties to the applicant. 42 U.S.C.A. § 1396a(a)(25). Further, 42 U.S.C. § 1396k directs that, as a condition of eligibility, an applicant shall assign any rights of support the applicant has from third parties to the state. 42 U.S.C.A. § 1396k(a)(1)(A). The regulations implementing the federal-support programs universally include maintenance or alimony payments as "unearned income" to the recipient, which offsets federal support payments. 20 CFR 416.1121(b)(maintenance is unearned income for SSI eligibility). It is clear that Congress intended to complement the payment obligation of third parties to the applicant, not to replace those obligations entirely.

New York has implemented the federal requirements. See NY Social Service Law §366 (available income defined and includes spousal support payments). New York law requires the assignment of the right to seek "payment from any third party for any medical care provided by Medicaid, at the time the recipient applies." See 42 U.S.C §1396k(a)(1), [*6]cited in Estate of Heard, 25 Misc 3d 1233A (Sur. Ct. Monroe County 2009).[FN5] Furthermore, the state is required to seek recovery from estate of a decedent for all Medicaid assistance provided after the decedent's 55th birthday. See 42 U.S.C. §1396p(b)(1)(B); NY Social Services Law §369(2)(b)(i)(B). Based on these clear statutory commands, there can be little doubt that New York, as public policy, favors using spousal support payments to offset the public-support expenses paid for care through the Medicaid program.

New York courts, implementing this strong public policy preference, have required married persons to contribute support when their spouses are utilizing Medicaid for healthcare costs. Department of Social Services v. Barbara M, 123 Misc 2d 523 (Fam. Ct. Duchess Cty. 1984) (requiring wife to contribute monthly payments for her husband while he is on Medicaid). Despite the legislative direction to utilize spousal support as an offset for Medicaid payments, this Court can not find direct New York authority on the correlation between receipt of Medicaid benefits and continuation or modification of maintenance payments.

One other statutory command argues against granting the relief sought here. The Domestic Relations Law makes separation agreements subject to the provisions of General Obligations Law §5-311, which decrees a separation agreement void if the result is that the spouse will "become incapable of self-support and therefore is likely to become one. NY Gen. Obl. Law §5-311. Even if an agreement, signed years ago, did not anticipate the wife's becoming a public charge, the New York courts have awarded maintenance when a former spouse is in substantial danger of becoming one. Lasky v. Lasky, 163 Misc 2d 859 (Sup. Ct. Westchester Cty. 1994), aff'd 216 AD2d 366 (2d Dept 1995)(awarding temporary maintenance eight years after the agreement was signed because the ex-wife's serious psychiatric condition and lack of employment made her a danger of becoming a public charge). In Curran v. Curran, 169 AD2d 975 (3d Dept 1991), an agreement which waived maintenance was not a bar to a temporary maintenance order when the recipient had become a public charge 11 years after the agreement was signed. See also Sass v. Sass, 276 AD2d 42 (2d Dept 2000)(ex-wife who was receiving public assistance was entitled to maintenance) and Guerriero v. Guerriero, 40 AD2d 684 (2d Dept 1972)(in describing an award of maintenance to a welfare recipient, the court said: "it is neither the parent's nor the public's [duty] to support her at this juncture, rather, it is the husband's").

The General Obligations Law, as interpreted above, could require this Court to order temporary maintenance in this case 24 years after the agreement was signed, even if it had previously been waived. As the Court in Sass v. Sass concluded:

While it is implicit in the provisions of the Equitable Distribution Law that a former spouse's duty of support will end, and the parties' economic ties will be severed, in instances where the goal of economic independence can be not met, where that is not a [*7]realistic goal or where a subsequent change in circumstance prevents that goal from being reached, Domestic Relations Law Section 236(B)(9)(b) allows the courts to continue, as they have done historically, to impose a duty of support on a former spouse.

Sass v. Sass, 276 AD2d at 49. Given that command under the Domestic Relations Law and the command that maintenance should be granted if there was a danger of the wife becoming a public charge, this Court can only conclude that reducing maintenance, when the recipient is already a public charge, would violate the spirit of the General Obligations Law and the well-structured system of "last resort" public financing through Medicaid of the wife's healthcare needs.

Other state courts, which have considered requests to modify maintenance obligations of spouse's of public assistance recipients, reinforce this conclusion as a matter of public policy. The Indiana Court of Appeals refused to permit a modification of maintenance payments when the recipient spouse received Medicaid, concluding that to permit a modification would be contrary to the intentions of Congress. Lowes v. Lowes, 650 N.E.2d 1171 (Ind. Ct. App. 1995). There, a nineteen-year marriage ended, and the obligee spouse's health deteriorated. The oligee spouse was receiving medical coverage from her husband's health insurance until the coverage expired. The husband requested a maintenance modification after the wife began receiving Medicaid benefits. The Lowes court noted that terminating the maintenance order "frustrates the policy of the federal Medicaid scheme and prematurely shifts the entire financial burden to taxpayers." Id at 1176. Other courts have been equally reluctant to grant modification in situations where, in lieu of receiving maintenance payments, the obligee spouse becomes more dependent on public assistance. Eichenholz v. Eichenholz, 407 N.W.2d 699 , 702 (Minn. Ct. App. 1987) (a possible increase in government assistance resulting from a reduction in maintenance is not a justifiable reason to modify the maintenance order and frustrates public policy). An Ohio Court refused to modify a maintenance payment when the recipient was receiving Medicaid payments. Coker v. Ulrich, 853 N.E.2d 358 (Ct. App. Ohio 2006). The court concluded: [Petitioner] argues that she should no longer be forced to reimbursement the state/federal coffers because [her husband's] Medicaid benefits are sufficient to meet all of his present and future needs. While this argument is somewhat compelling, it requires us to completely ignore the above-stated public policy that Medicaid was intended to be the last resource for individuals in need of medical care, not a vehicle for avoiding the financial obligations which are otherwise appropriate and reasonable, thereby shifting the burden to the taxpayer.

Id at 363-364. See also Ely v. Ely, 139 Vt. 238 (Vt. 1981) (alimony is specifically an offset against federal SSI benefits).

In contrast, a Pennsylvania court granted a reduction in non-durational maintenance to a husband whose wife required nursing home care and whose care "has been and will continue to be paid for by Medicaid, regardless of whether or not the husband pays alimony."' Colella v. Colella, 72 Pa. D & C 165 (4th Common Please Ct. [*8]2005). The Court concluded that the wife had "no need for alimony" because Medicaid and SSI benefits "adequately met her needs." The Court found:

The crucial fact is that the payment of alimony by [husband] does not improve the quantity or quality of the care [wife] receives at all: she has absolutely no need for it. Should the laws governing [wife's] entitlement to government benefits she now relies on change so that alimony payments could significantly benefit the [wife], the court will consider reinstituting alimony at that time.

Id at 169. Two factors militate against using Colella as support for this application, First, Colella is not the last word from Pennsylvania. In Lawson v. Lawson, 940 A.2d 444 (Sup. Ct. Pa. 2007), the Court expressly rejected the argument offered here: that the payment of alimony made no difference to the healthcare of the wife who received receipt public assistance benefits. After reviewing Pennsylvania's system of publicly-funded healthcare, the Court declined to modify the husband's support obligation. Second, even if this Court ignored New York's statutes and strong public policy favoring spousal support of a public charge, the facts which might justify some modification under the logic of Colella are not present here. In this case, the husband and wife were in a long-term marriage and they agreed to non-durational maintenance. By contrast, in Colella, there was evidence that the husband's financial needs had increased because of new family members and greater family costs and the Court conducted a balancing of the husband's other obligations with his continuing maintenance obligation. There is no evidence of any substantial "balancing factors" present here. The husband's claim that his expenses are significant is mainly the consequence of his own excessive spending.[FN6]

This Court agrees with the Lowes, Eichenholz, and Lawson decisions regarding the maintenance liability of former spouses and their continuing obligations to provide support despite governmental assistance. Allowing maintenance modification in such circumstances violates public policy and circumvents both the congressional intent of the Medicaid program and New York's elaborate balancing of the obligations of government and its citizens. To evade the command and spirit of the Domestic Relations and the General Obligations Law and the fine-tuned balancing of individual and public support to those in need in New York should not be countenanced. "Whatever merit there may be for substituting public liability for spousal . . . responsibility, the result must be reached, if ever, by legislative means rather than judicial interpretation." Ely v. Ely, 139 Vt. 238. In denying this application, this Court whole-heartedly embraces the comments of the Lawson court:

That Wife is eligible to receive assistance from publicly-funded programs does not give the courts license to ignore [state law] and thus to decide questions of alimony unencumbered by the collective decisions of our Legislature. Furthermore, that Wife is eligible to receive assistance from publicly-funded programs does not eliminate Husband's [*9]obligation toward her. If we were to accept Husband's argumentwhich we emphatically do notit could be used, with only slight extension, to support denial of alimony in virtually any case in which a public assistance program could be invoked in alimony's stead. We have no hesitation in concluding that our Legislature most certainly had no such intention in constructing the Divorce Code, and thus we, in the strongest terms possible, reject Husband's argument as to the substitution of public funds for alimony.

Lawson at 449.

The wife's counsel seeks attorneys fees for collection of the maintenance in this case. The Court awards $1,500 in fees, to be paid in $500 per month installments beginning the first month after an order is entered consistent with this decision.

_________________________________

Richard A. Dollinger

9/1/11A.J.S.C. Footnotes

Footnote 1:The husband also has a $347 "auto lease" payment, which does not specify the automobile. The statement

indicates that the husband has a 1994 Pathfinder. In the Court's judgment, this is a sizable monthly expense

for a 17-year-old car and the Court can only conclude that it is overstated or the payment is directed to another

vehicle.

Footnote 2:The Court notes that many cases have affirmed awards of maintenance that discontinue when the

recipient "becomes eligible for full Social Security benefits." Northway v. Northway, 70 AD3d

1347, 1348 (4th Dept 2010). The courts have granted cessation of maintenance upon reaching the age of 65. Litvak v. Litvak, 63 AD3d 691, 692 (2d Dept 2009).

Footnote 3:

Footnote 4:

Footnote 5:As noted earlier, the letter from the County Attorney makes reference to an "assignment" but there

is no evidence of such an assignment before the Court.

Footnote 6:In Colella, the husband had two young children to support and the Court concluded that the husband was not guilty of bad faith in seeking to reduce his alimony payments.