Hogle v Hogle

[*1] Hogle v Hogle 2013 NY Slip Op 51240(U) Decided on July 29, 2013 Supreme Court, Columbia County Lynch, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 29, 2013
Supreme Court, Columbia County

Gayle M. Hogle, Plaintiff,

against

Richard R. Hogle, Defendant.



2626-11



FRIEDMAN AND MOLINSEK, P.C.

(Michael P. Friedman, Esq., of Counsel)

Attorney for Plaintiff

2 Normanskill Boulevard

P.O. Box 69

Delmar, New York 12054

BETHENE LINDSTEDT-SIMMONS, ESQ.

Attorney for Defendant

P.O. Box 180

Chatham, New York 12037

Michael C. Lynch, J.

The parties to this matrimonial were married on June 22, 1979. This action was commenced on April 15, 2011 and came before the Court for a non-jury trial on February 21, 2013 and April 1 and 5, 2013. Post-trial Briefs were submitted by both parties on June 28, 2013. This Decision and Order constitutes the Court's Findings of Fact and Conclusions of Law in accord with Rule 202.50. The Court has jurisdiction under DRL §230.

At the commencement of the trial by stipulation, defendant withdrew his answer insofar as plaintiff stated grounds for a divorce pursuant to DRL §170[7], [*2]i.e. irretrievable breakdown of the marital relationship for more than six months (TT Vol. 2, pp. 4-8; Court Exhibit "1" Affidavit of Appearance and Adoption of Oral Stipulation and Opt-Out Agreement).

The trial proceeded to address the equitable distribution of the marital assets, as well as plaintiff's claim for maintenance and counsel fees (TT Vol. 1, p. 8).

EQUITABLE DISTRIBUTION. In rendering an equitable distribution determination, the Court is required to consider the factors set forth in DRL §236[B][5][d][g]. The parties had been married for almost 32 years when this action was commenced. At the time of the marriage they had limited assets. Plaintiff is now 56 years old, and defendant is 59. The parties have two children, now emancipated, and the Court credits plaintiff's testimony that they initially agreed plaintiff would stay at home to raise the children after their second child was born in 1988 (TT Vol. 2, p. 59). Defendant testified that he agreed that plaintiff could stay home after their second child was born only if they could afford to live on one income (TT Vol. 2, p. 144). He began urging plaintiff to return to work as early as 1989 but maintains she refused to seek full time employment (TT Vol. 2, pp. 144-145). Even though the parties disagree on this issue, the record confirms that plaintiff was the primary homemaker (TT Vol. 2, pp. 152-153) and generated income through her "Longaberger" basket business. Her efforts as a homemaker are as significant as defendant's contributions as the primary wage earner in determining an equitable distribution award (DRL §236[B][5][d][7]). Upon the dissolution of the marriage, defendant will retain health insurance coverage through his employer; plaintiff will be required to obtain new health insurance, which defendant testified would be available under COBRA for a period of three years at a cost of $568 per month (TT Vol. 2, pp. 24-25). The parties have agreed that the marital residence should be sold. As noted below, defendant has a pension through his employer that will be distributed in accord with Majauskus v. Majauskus (61 NY2d 481). Defendant is gainfully employed as an attorney with the State of New York. Plaintiff is not employed.

Given the long term of this marriage, and the respective contributions of the parties to the marriage, the Court finds that an essentially 50/50 distribution of the marital assets is warranted in accord with the decision below.

PENSION. The defendant acknowledges that plaintiff is entitled to a 50% Majauskus share of his NYS pension and the Court hereby awards same to plaintiff. Plaintiff is also awarded a Majauskus share of defendant's pre-retirement death benefit. Defendant's purchase of .26 years of service time for employment [*3]during 1972-73 is his separate property (see Valachovic v. Valachovic, 9 AD3d 659). In their post-trial briefs, the parties agree that the defendant should utilize the "pop-up joint allowance" such that plaintiff would continue to receive her monthly share in the event of defendant's death, while defendant's share would "pop-up" to the maximum benefit available ("single-life allowance") in the event plaintiff predeceases him. Also, defendant proposes and the Court orders that plaintiff be named as the irrevocable beneficiary of defendant's post-retirement death benefit (see defendant's Exhibit "U"; defendant's post-trial memorandum at paragraph 57).

MARITAL RESIDENCE. The parties agree that the marital residence at 40 Daley Road should be directly listed for sale through a mutually acceptable broker, with the net proceeds distributed 50-50 after adjustments for credits set forth in this decision. Notably, there is considerable equity in the home, which remains encumbered by a mortgage of approximately $11,000 (TT Vol. 2, p. 85). The parties disagree as to the value of the property, which plaintiff estimates at $170,000 (TT Vol. 2, p. 115) and defendant at $260,000 (TT Vol. 1, p. 34). Neither party submitted an appraisal, and the Court declines defendant's invitation to set a listing price of $200,000. In the event the parties fail to list the property at a mutually agreeable listing price within (30) days following entry of the Judgment of Divorce, either party may apply for the appointment of a receiver

(CPLR 5106; see Westfall v. Westfall, 194 AD2d 960; Wagenmann v. Wagenmann, 96 AD2d 534). Since plaintiff now resides in New Hampshire, the Court rescinds her right to exclusive occupancy of the residence. Pending the sale, the parties shall continue to pay the mortgage, taxes and insurance on the residence, 50-50.

DEFERRED COMPENSATION. The parties agree that defendant's deferred compensation plan contained marital funds in the sum of $96,430.88 as of June 30, 2011, the closest valuation date to the date of commencement on April 15, 2011 and that 50% of this fund should be distributed to plaintiff. Plaintiff should also receive 50% of any accrued appreciation in value.

ENHANCED EARNINGS - LAW DEGREE. Defendant acknowledges that plaintiff is entitled to an award with respect to his law degree and asssociated license obtained during the marriage, but not more than 10% of the value. Based on plaintiff's expert's testimony valuing the enhanced earnings attributable to defendant's law degree at $118,000, defendant asserts plaintiff is entitled to an award of $11,800 (see Exhibit "38"). For her part, plaintiff seeks an award of $50,000, without explaining the premise for this amount in her post-trial [*4]submissions.

Shortly after the parties were married, defendant enrolled in law school full time and earned his law degree in 1982. "A nontitled spouse seeking a portion of the enhanced earning potential attributable to a professional license or degree of a titled spouse is required to establish that a substantial contribution was made to the acquisition of the degree or license" (Sadaghiani v. Ghayoori, 83 AD3d 1309, 1310; Esposito-Shea v. Shea, 94 AD3d 1215). By the time they were married, both parties had obtained a college degree. Plaintiff was employed as a computer programmer at Albany Medical Center Hospital, but left the position to relocate to White Plains, New York where defendant attended law school. While defendant worked part-time and in the summer during law school, plaintiff provided the primary family support. In March 1982, the parties daughter was born and plaintiff took a six week maternity leave. After graduation, defendant procured employment in Chatham, New York, where the parties again relocated and eventually built the marital residence. The parties financed defendant's law school education through student loans which were eventually paid with marital funds (TT Vol. 2/21/13, pp. 20, 21). Given the above , the Court hereby awards to plaintiff 25% of the enhanced earnings attributable to defendant's law degree (see Owens v. Owens, ___ AD3d ___ [6-13-13]; Vertucci v. Vertucci, 103 AD3d 999, 1004; Quinn v. Quinn, 61 AD3d 1067, 1069-1070; Mairs v. Mairs, 61 AD3d 1204, 1206-1207). Since both parties have accepted the valuation of plaintiff's expert calculating the enhanced earnings at $118,000, the Court hereby awards to plaintiff the sum of $29,500; payable at the rate of $1,000 a month until the marital residence is sold, at which time the balance must be paid in full at closing.

PERSONALTY. Plaintiff testified that when defendant left the residence in April, 2011, the parties split various personalty items including cars (TT Vol. 2, p. 74). She also consented to defendant having the personalty items listed in Exhibit "W", with the exception of a generator actually owned by a neighbor (Id. pp. 79-80). Defendant is hereby awarded the approved items listed in Exhibit "W", but the Court directs that the riding mower remain at the premises pending a sale.

The parties shall otherwise retain the personalty items they divided by agreement including, without limitation, the SMART car used by defendant and the Sonata used by plaintiff. The parties also own three motorcycles and an MG Midget automobile acquired during the marriage (TT Vol. 1, p. 130). A fourth motorcycle was acquired by defendant before the marriage and is separate property (Id p. 131). For purposes of completing the equitable distribution of the motorcycles and MG, absent an agreement between the parties, these vehicles [*5]must be sold by defendant at market value, with the net proceeds split 50-50. In the event the vehicles are not sold within sixty (60) days after entry of a Judgment of Divorce, either party may apply for the appointment of a receiver to complete the sale.

The parties maintained a 529 College Savings Program account for the benefit of their son, which had a value as of February 15, 2013 of $321.55 (Exhibit "20"). The Court credits defendant's testimony that the funds withdrawn from this account were used to pay for their son's educational expenses (TT Vol. 1, pp.46-49). Of course, the balance of these funds must be utilized for the son's education.

The record shows that defendant took an $11,300 loan against a life insurance policy issued by AXA Equitable (TT Vol. 1, pp. 37-40; Exhibit "11"). He testified that the proceeds were used to pay $5,000 for plaintiff's attorney fees; $5,700 to pay the loan balance on the SMART car he drives and the balance to pay marital credit card debt (Id; also TT Vol. 2, p. 138).

While, as noted above, the parties agreed that defendant should retain the SMART car there was certainly no agreement that he could use the loan to pay the balance due. Moreover, the 2009 SMART car has a greater value than the 2005 Sonata vehicle retained by plaintiff, which had 133,000 miles on the odometer as of the time of trial (TT Vol. 2, p. 70). The Court recognizes that the Sonata was repaired just prior to the commencement of this action (Exhibit "G") but by the time of trial, further repairs were needed (TT Vol. 2, p. 70). As for defendant's use of the loan proceeds to pay $5,000 in attorney fees to plaintiff, that payment was required by the Decision and Order (McGrath, J.) of this Court, issued on May 21, 2012. As such, defendant is hereby charged with the sole responsibility for paying the AXA loan. Each party shall otherwise be responsible for their own debts. Since the Court has directed defendant to name plaintiff as the irrevocable beneficiary of his post-retirement death benefit, the Court hereby awards the AXA insurance policy to defendant.

The record shows that defendant is a musician with a number of musical instruments. Plaintiff agrees that defendant should retain these items. As such, these items are awarded to defendant, with a $1,500 credit to plaintiff (see defendant's Post-Trial Memorandum at paragraphs 10, 44).

As indicated above, plaintiff has operated her own business selling "Longaberger" baskets. A dispute exists as to the remaining inventory and value of the baskets. Defendant estimates plaintiff has retained 900 baskets, while he kept "a dozen or so" (TT Vol. 1, pp. 111-112). He testified that the baskets had a [*6]value of $90,000, but did not submit an appraisal (Id). By comparison, plaintiff estimates she has 500 baskets and that defendant has 200 baskets (TT Vol. 2, pp. 73-74). Plaintiff testified the baskets have limited, if any, value due to a failing market (TT Vol. 2, pp. 75-76). From the testimony presented, the Court is left with no plausible valuation for the baskets. The parties respective valuations are not convincing and it is doubtful plaintiff's business remains viable. For purposes of equitable distribution, the Court directs plaintiff to turn over 150 baskets (but not to include "booking baskts" [TT Vo. 1, p. 166]) to defendant within sixty (60) days after this Decision and Order is entered.

The defendant also agrees that plaintiff should be credited $50 for the sale of the 1991 GMC Truck; $362.50 for a security deposit; $375 for the First Niagara checking account and $375 for the SEFCU credit union account and the Court orders same accordingly (see defendant's Post Trial Memorandum at paragraph 11).

MAINTENANCE. Plaintiff seeks a non-durational award of $35,000 per year, effective as of May 1, 2013.[FN1] Defendant opposes any award and asserts plaintiff is capable of supporting herself. He emphasizes that with his planned, impending retirement, the parties will be on a relatively equal footing.

The Court looks to the factors set forth in DRL §236[B][6][a] in determining whether to award maintenance and, if so, the amount and duration of such an award (see Hartog v. Hartog, 85 NY2d 36, 50-51; Bean v. Bean, 53 AD3d 718, 723). Giving due recognition to the respective financial prospects of each party, "the primary purpose of maintenance is to encourage self-sufficiency by the recipient" (Quinn v. Quinn, 61 AD3d 1067, 1071). "Notably, maintenance is appropriate where, among other things, the marriage is of long duration and the recipient spouse has been out of the work force for a number of years and has sacrificed her or his own career development or has made substantial noneconomic contributions to the household or to the career of the payor" (Musacchio v. Musacchio, ___ AD3d ___ [6/27/13, 3d Dept.] (internal quotations and citations omitted). In such a circumstance, as here, plaintiff's "ability to be self-supporting must be considered within the parties' predivorce standard of living" (see Owens [*7]v. Owens, ___ AD3d ___, supra; Ndulo v. Ndulo, 66 AD3d 1263, 1265).

This marriage is clearly of long duration. Defendant has been employed as an attorney with the State of New York for the past seventeen years and currently earns a salary of $117,000. While he raised a concern that his position was a political appointment, subject to non-renewal, the evidence shows that has been the nature of this position since he started and and he retains rights to a fall back attorney position that has a salary of $104,000. In calculating the value of defendant's law degree, plaintiff's expert valued defendant's earning capacity with a bachelor's degree at a baseline at $77,563 (Plaintiff's Exhibit "38"; TT Vol. 1, p. 80). To avoid the prohibition against double counting defendant's income enhanced by his law degree, the Court will utilize $77,563 to define defendant's annual income for purposes of defining a maintenance award (see Grunfeld v. Grunfeld, 94 NY2d 696, 704-705; McSparron v. McSparron, 87 NY2d 275).

For her part, defendant openly confirmed that she has not sought employment since the commencement of this action. The Court recognizes that plaintiff procured a bachelor of science degree in computer science prior to the marriage, and worked full time as a computer programmer up until 1988 when her second child was born and her employer closed shop. Her highest rate of pay in this field was $31,600 (TT Vol. 2, p. 60). She has not, however, worked or been trained in the computer field since 1988. During the marriage she developed her own business selling "Longaberger" baskets, but has generated minimal income in this business in recent years, a decline defendant attributes to competition from eBay and the economy (TT Vol. 2, p. 73). She also was the primary caretaker for the family until her youngest child moved out three years ago (Id, p. 81).

Defendant's expert witness, Andrew Gluck, who identified himself as a "vocational economic consultant" (TT Vol. 3, p. 4) opined that plaintiff had an earning capacity of $56,613, plus medical benefits, conceding that she would not be able to earn that much "within six months" (Id, p. 24; Defendant's Exhibit "2"). This opinion is based on a statistical survey for women who have a bachelor's degree, and is discounted for the rural market where the parties have lived and 10% based on plaintiff's age (Id).

In the Court's view, Mr. Gluck's opinion is seriously flawed given that he failed to factor into his analysis plaintiff's actual work-life expectancy (TT Vol. 3, p. 41-42). As such, the Court is unable to define the time frame over which the witness determined plaintiff's earning capacity. Moreover, the witness fails to account for the fact plaintiff has been out of the computer field for 25 years and the analysis would compare her to a recent college graduate. [*8]

From the Court's perspective, plaintiff is expected to make every reasonable effort to resume employment, but her prospects are limited due to both her age and absence from the work force. Her health does not preclude her from working.

The irony here is that defendant, who is 59, made it clear that his preference is to retire now from his position with the State (TT Vol. 1, p. 127, 146), while insisting that plaintiff, age 56, should return to the workforce. He glosses over the prospect that upon retirement from the State, he remains a licensed attorney capable of returning to the private practice of law. Moreover, it is evident that defendant has the ability to generate income as a musician. His testimony that he did not receive compensation for performances, while his current girlfriend (also a member of the band) was paid is simply not plausible.

It is also worth noting that given their respective work histories, assuming retirement at age 62, plaintiff's projected social security benefit is $744 a month (Plaintiff Exhibit "52"), while defendant's is $1,706 per month (Plaintiff Exhibit "24").

Upon the dissolution of the marriage, defendant will continue to have health insurance through his employer, even after retirement. Plaintiff will have to procure health insurance coverage, a prospect complicated by the fact she has now relocated to live in New Hampshire with her parents, and thus may not qualify for COBRA coverage through their current health insurance provider CDPHP.

The Court recognizes that through the equitable distribution of the marital assets plaintiff will receive a Majuskaus share of defendant's pension benefits, estimated at approximately $19,800 per year at this point (compared to defendant's receipt of approximately $24,200). She will also receive a 50% share of the deferred compensation plan and the net proceeds of sale from the marital home.

Giving due regard to the circumstances of the parties, including the particular factors noted above, the Court hereby awards maintenance to plaintiff for a period of seven (7) years commencing May 1, 2013, payable at a rate of $1,000 per month for a minimum period of three (3) years; and, thereafter upon defendant's retirement (or if he has retired during the initial three year period), the maintenance amount is reduced to $500 per month for the balance of the seven year term (see Quinn v. Quinn, 61 AD3d 1067, 1070).

CONTEMPT. By Order to Show Cause (McGrath, J.) dated December 4, 2012, and initially returnable January 17, 2013, plaintiff applied for an order holding defendant in contempt for allegedly failing to comply with the Court's Order (McGrath, J.) dated May 21, 2012, directing the payment of maintenance. Defendant filed a cross-motion seeking, in part, to adjust the support award. By [*9]letter order (McGrath, J.) dated January 22, 2013, the Court deferred the issues for resolution at trial.

The temporary maintenance issue centers on the May 21, 2012 Decision and Order, in which the Court ordered defendant to pay temporary maintenance of $2,581.93 per month. Notably, defendant had been paying this amount since May, 2011, subject to credits for payments of the mortgage, cable, utilities, insurance and vehicle payments which he was making directly, while paying the net to plaintiff. This structure was in accord with a proposal from plaintiff's counsel (see defendant's Exhibit "R"). At issue here is the following directive from the Court:

"Now that the Court has determined the correct amount

the Court will allow the parties thirty (30) days to determine whether

they can come to an agreement as to whether the present arrangement

will remain in effect. If the parties do not agree, the Court will order

that the payments be made directly to the wife, and the Court will

allocate and direct the wife to make payments from the award to

preserve the marital assets, such as paying the mortgage, insurance,

taxes, etc."

The Court further stated the maintenance award was intended to cover plaintiff's dental work and automobile expenses.

In her contempt application, plaintiff asserts that the parties were unable to agree on the credits and that as such, defendant was obligated to directly pay her the full amount of $2,581.93, plus $500 towards the arrearage. The problem with this thesis is that plaintiff failed to secure a further order directing this adjustment. Moreover, the trial record shows that defendant continued to make the required monthly payments of the mortgage and insurance through December, 2012 (see defendant's Exhibit "A"). As for the $848 offset for plaintiff's dental work, the Court expressly authorized offsets of this nature.

Contempt involves a knowing violation of a clear mandate of the Court intended to impede the rights of another party (Judiciary Law §753[3]). Under the circumstances presented, the Court finds plaintiff's application to hold defendant in contempt is without merit. Defendant's application for attorney fees relative to this motion is denied. The balance of the issues raised in the motions have been resolved above.

ATTORNEY FEES AND EXPERT FEES. To date, defendant has paid $7,850 to plaintiff for attorney fees incurred in this action and $2,500 for expert expenses. Given the equitable distribution and maintenance award as described above, and the circumstances of the parties, the Court declines plaintiff's request for an additional award of attorney and expert fees (DRL §237; DeCabrera v. [*10]Cabrera-Rosete, 70 NY2d 879, 881; Keil v. Keil, 85 AD3d 1233, 1238).

This Memorandum constitutes the Decision and Order of the Court. This original Decision and Order is being returned to the attorney for Plaintiff. The below referenced original papers are being mailed to the Columbia County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.

DATED:July 29, 2013

Albany, New York

________________________________________

Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

(1)Trial Transcript Volumes 1 - 3, with Trial Exhibits;

(2)Plaintiff's Proposed Findings of Fact and Conclusions of Law, with Memorandum

of Law, dated June 28, 2013;

(3)Defendant's Post-Trial Memorandum dated June 28, 2013;

(4)a. Order to Show Cause (McGrath, J.) dated December 4, 2012, returnable

January 17, 2013, with Affidavit of Gayle Hogle dated November 6,

2012, and Exhibits A-C, A);

b. Notice of Cross Motion dated January 11, 2013 with Affidavit of Richard

Hogle dated January 11, 2013; Affidavit of Andrew Gluck dated January

2, 2013; Affirmation of Bethene Lindstedt Simmons dated January 11,

2013 with attachments;

c. Reply Affidavit of Gayle Hogle dated January 16, 2013;

d. January 22, 2013 Letter Order of Hon. Patrick J. McGrath, J.S.C.;

(5)a. Plaintiff's Notice of Motion returnable July 12, 2013 with Affidavit of

Michael Friedman, Esq. dated June 28, 2013, and Exhibit "A" - "B";

b. Affirmation in Opposition of Richard Hogle dated July 7, 2013 with [*11]

Exhibit "A". Footnotes

Footnote 1:In her post-trial Memorandum of Law, plaintiff begins by stating she should receive a non-durational award of at least $35,000 a year; and concludes with a demand of at least $25,000 a year. Her proposed Findings of Fact and Conclusions of Law demand $30,000 per year retroactive to the date of commencement (see paragraph 231). In paragraph 233 of the proposed Findings, she proposes that maintenance commence as of May 1, 2013. Given the history of maintenance payments throughout this case, the Court will initiate payments as of May 1, 2013.