Alice M. v Terrance T.

Annotate this Case
[*1] Alice M. v Terrance T. 2015 NY Slip Op 51913(U) Decided on December 23, 2015 Supreme Court, Kings County Sunshine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 23, 2015
Supreme Court, Kings County

Alice M., Plaintiff,

against

Terrance T., Defendant.



XX/15



Stephanie M. Baez, Esq.

Anna E. Ognibene, Esq.

Her Justice

Attorneys for the Plaintiff

100 Broadway

New York, New York 10005

Terrance T.

Pro Se Defendant

Clinton Correctional Facility

P.O. Box 2000

Dannemora, New York 12929
Jeffrey S. Sunshine, J.

Introduction

The issue before the Court is whether defendant-husband, who is serving a forty (40) years prison sentence following conviction of rape in the first degree against plaintiff-wife, is entitled to maintenance, equitable distribution and counsel fees.[FN1]

This matrimonial action was tried on March 18 and 19, 2015. Defendant-husband, Terrance T., appeared pro se having been produced in Court from the Clinton Correctional Facility. The Court, on numerous occasions, informed defendant of his right to counsel and the risks associated with representing himself. The Court directed that post-trial summations be served and provided to the Court by May 19, 2015.

The parties were married September 16, 2002. Plaintiff Alice M., 52, commenced the instant divorce action on September 30, 2011 against the defendant Terrance T., 42. The issues presently before the court are grounds for divorce, maintenance, equitable distribution, and counsel fees.

Grounds for Divorce

Plaintiff's complaint, dated November 9, 2011 [FN2] , seeks a divorce on the grounds of irretrievable breakdown of the marital relationship for a period of six (6) months. Plaintiff filed a sworn statement as part of her verified complaint, pursuant to DRL§ 170(7), that the marriage has irretrievably broken down for a period in excess of six (6) months.

Defendant filed a verified answer dated November 23, 2011, containing a cross-claim for divorce on the grounds of cruel and inhuman treatment allegedly because, he avers, plaintiff "falsely accused" him of domestic violence and rape. Defendant's verified answer, pro se, asserts the following:



"I Terrance T. am counter claiming the grounds of divorce as follows: Cruel and inhuman treatment DRL 170(1). Whereas on or about June 29, 2008, the plaintiff falsely accused defendant of domestic violence resulting in false arrest. Whereas on or about October 11, 2011 the plaintiff again falsely accused the defendant of assault and rape resulting in false arrest and conviction. Whereas the plaintiff willingly committed perjury in open court as well as on legal documents to the Courts (as well as numerous incidents of mental cruelty).

It is also my contention to ask for fair and equitable distribution of marital property, payment in spousal support, relocation cost and contribution of health coverage. Since the defendant was a student at times and provided domestic upkeep for the household throughout the years of marriage, I am asking for one-half the value of: 1) the bedroom set; 2) the living room set' 3) the household television; 4) spousal support and relocation stipend; 5) a percentage of the plaintiff's retirement package; 6) life insurance; and



7) health care coverage."

Effective October 10, 2010, the New York legislature adopted DRL §170(7) which provides that "[a]n action for divorce may be maintained by a husband or wife to procure a judgement divorcing the parties and dissolving the marriage on any of the followings... [t]he relationship between husband and wife has broken down for a period of at least six months provided that one party has so stated under oath..." (NY Dom. Rel. Law § 170 [McKinney 2015]).

The Appellate Division, First Department, has ruled that a spouse's statement under oath that the marriage has been irretrievably broken for a period of six months is, by itself, sufficient [*2]to establish a cause of action for divorce as a matter of law (Hoffer-Adou v. Adou, 121 AD3d 618, 997 N.Y.S.2d 7 [1 Dept.,2014]; NY Dom. Rel. Law § 170 [McKinney]). Furthermore, the Appellate Division, Fourth Department held in Trbovich v. Trbovich, 122 AD3d 1381, 1382, 997 N.Y.S.2d 855, 857 [4 Dept.,2014] "that the opposing spouse in a no-fault divorce action pursuant to Domestic Relations Law § 170(7) is not entitled to litigate the other spouse's sworn statement that the relationship has broken down irretrievably for a period of at least six months (see Palermo v. Palermo, 35 Misc 3d 1211[A], 2011 NY Slip Op. 52506[U], [Sup Ct, Monroe County 2011]; affd. 100 AD3d 1453 [4 Dept.,2012]; see e.g. Rinzler v. Rinzler, 97 AD3d 215, 218, 947 N.Y.S.2d 844 [3 Dept.,2012]; A.C. v. D.R., 32 Misc 3d 293, 306, 927 N.Y.S.2d 496 [Sup Ct, Nassau County 2011])."

Here, it is clear to the Court that defendant seeks, by way of his counterclaim, to collaterally attack his criminal conviction for first degree rape of plaintiff during the marriage. Defendant admitted at trial that he was sentenced to a forty (40) years prison term for raping plaintiff during the marriage. Defendant provided no testimony or documentary evidence at trial as to whether he is eligible for parole before his forty (40) year sentence is complete in 2050.

The standard of proof in a criminal action is "beyond a reasonable doubt" while the standard of proof in a civil action is "by a preponderance of the credible evidence" (NY Crim. Proc. Law § 70.20 [McKinney 2015]). Defendant was convicted in the criminal proceeding against him which means that the prosecution met the higher standard of "beyond a reasonable doubt." As such, the conviction for rape in the first degree cannot be attacked by a counterclaim for a divorce on the grounds of cruel and inhuman treatment in this civil proceeding. It is well-established that a criminal conviction, whether by plea or after trial, is conclusive proof of its underlying facts in a subsequent civil action and collaterally estops a party from relitigating the issue (see generally Maiello v. Kirschner, 98 AD3d 481, 949 NYS2d 200 [2 Dept.,2012]). All that is required to give collateral estoppel effect to a criminal conviction is that there be an identity of issues in the criminal and subsequent civil actions and that the defendant have had a full and fair opportunity to contest the issues raised in the criminal proceedings (see generally People v. Plevy, 52 NY2d 58, 436 N.Y.S.2d 224 [1980]; see also Gilberg v. Barbieri, 53 NY2d 285, 441 NYS2d 49 [1981]).

As such, defendant is collaterally estopped from attacking his criminal conviction in this civil action. Defendant's counter claim for divorce on the grounds of cruel and inhuman treatment by plaintiff is denied.

Plaintiff's application for a divorce on the ground of an irretrievable breakdown in the marital relationship for a period of in excess of six months, is granted. The Court notes that all ancillary issues between the parties are decided herein in compliance with DRL §170(7).



Credibility

It is well established that the "trial court, which had the opportunity to view the demeanor of the witnesses, was in the best position to gauge their credibility" (Massirman v. Massirman, 78 AD3d 1021, 911 N.Y.S.2d 462 [2d Dept 2010], quoting Peritore v. Peritore, 66 AD3d 750, 888 N.Y.S.2d 72 [2d Dept 2009]; see also Varga v. Varga, 288 AD2d 210, 732 N.Y.S.2d 576 [2d Dept 2001], quoting Diaco v. Diaco, 278 AD2d 358, 717 N.Y.S.2d 635 [2d Dept 2000]; Ferraro v. Ferraro, 257 AD2d 596, 684 N.Y.S.2d 274 [2d Dept 1999]). It is also well-established that "[i]n a non-jury trial, evaluating the credibility of the respective witnesses and [*3]determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion" (Goldstein v. Guida, 74 AD3d 1143, 904 N.Y.S.2d 117 [2d Dept 2010], quoting Ivani v. Ivani, 303 AD2d 639, 757 N.Y.S.2d 89 [2d Dept 2003], quoting L'Esperance v. L'Esperance, 243 AD2d 446, 663 N.Y.S.2d 95 [2d Dept 1997]; see also Schwartz v. Schwartz, 67 AD3d 989, 890 N.Y.S.2d 71 [2d Dept 2009]; Krutyansky v. Krutyansky, 289 AD2d 299, 733 N.Y.S.2d 920 [2d Dept 2001]).

The trial court's assessment of the credibility of witnesses and evidence is afforded great weight on appeal (see Alper v. Alper, 77 AD3d 694, 909 N.Y.S.2d 131 [2d Dept 2010]; see also Massirman v. Massirman, 78 AD3d 1021, 911 N.Y.S.2d 462 [2d Dept 2010]; Schwartz v. Schwartz, 67 AD3d 989, 890 N.Y.S.2d 71 [2d Dept 2009]; Jones-Bertrand v. Bertrand, 59 AD3d 391, 874 N.Y.S.2d 152 [2d Dept 2009]; Wortman v. Wortman, 11 AD3d 604, 783 N.Y.S.2d 631 [2d Dept 2004]).

During trial, plaintiff testified credibly that defendant engaged in extreme acts of physical and sexual violence against her during the marriage. The Court recognizes that in testifying in this matrimonial action plaintiff was forced to recount the devastating, demoralizing and degrading acts defendant committed against her.

The Court finds that plaintiff's testimony was credible and compelling. The Court finds that defendant's testimony was not credible. Defendant attempted to utilize this proceeding to attack his prior conviction. The Court finds defendant's attempts to do so inappropriate and a malicious and vexing attempt to cause plaintiff further emotional distress. Clearly, defendant refuses to acknowledge his violent crime against plaintiff during the marriage.



Equitable Distribution

The only marital assets subject to equitable distribution in this matter are: plaintiff's retirement benefits; some household furniture; and marital debt totaling approximately $38,000.

Plaintiff testified that during their marital relationship defendant "barely" contributed financially to the marriage. Plaintiff acknowledges that the defendant received food stamps from the government during the marriage, but she contends that he would use the food stamps for himself and forced her to pay for her own food. The record established that defendant was incarcerated or living in a men's shelter for more than half of the parties' marriage before he was convicted of raping plaintiff and sentenced to forty (40) years in prison.

Plaintiff testified that the parties' marriage was marred by separations and domestic violence perpetrated by defendant against plaintiff. Plaintiff also testified credibly that when defendant was not incarcerated during the marriage that he repeatedly committed violent acts against her that resulted in her losing her employment. Plaintiff testified that in 2002, shortly after the parties married, defendant forbad her from going anywhere without him. She testified that she "didn't take that serious" but about a week later she went to visit a female friend and defendant "got very upset" that she went. Plaintiff testified that while she was at her friend's house defendant "came to her window, yelling out my name, for me to come downstairs." She testified that when she went home defendant questioned her and she responded that "I'm grown, I can do what I want to do" and that in response he pulled the braids out of her head and hit and punched her repeatedly before he tied her up and sexually assaulted her. She testified that she "looked like a monster beated [sic] me". Plaintiff testified credible that defendant physically hurt her "a lot of times" during the marriage. On direct she testified that defendant physically hurt her [*4]so many times during the marriage that she "can't count, it's been so many."

She testified that "when his friend died, he took it out on me." Plaintiff also testified about another incident shortly after the parties married in 2002 when defendant held her by her neck and choked her all while telling her that "you don't play with me...". Plaintiff testified that during this incident she felt "real nervous and scared" because she thought she was "going to die" because she had asthma. Plaintiff testified that she lost her employment in 2002 because she was absent from work repeatedly because of defendant's attacks on her.

Plaintiff testified that in June 2009 defendant punched her in her right eye after he accused her son, who was not born of the marriage, of stealing one of his shirts. She testified that, as a result of defendant's punch, she had a "big black eye."

Plaintiff testified to another incident during the marriage, shortly before defendant was arrested, during which defendant "was fighting me and broke my glasses and almost broke my back." She testified that she "heard [her] whole back snap."

Plaintiff testified that she called the police as a result of defendant's physical attacks sometimes "but not all the time..." She testified that she filed approximately six (6) domestic incident reports with the police during the marriage. She testified that she "always threw them out" because she "could not have them around" fearing that they would make defendant angry.

Plaintiff testified in compelling, explicit detail regarding the details of defendant's October 11, 2010 attack on her that resulted in arrest and, ultimately, his conviction for rape. She testified that the defendant repeatedly raped and "punched" her all over her body, threw her to the floor and repeatedly kicked her started around 1 a.m. and did not stop until "daybreak...." when she agreed to his demands that she "get rid of [her] phone, don't let [her] son come visit [her], don't let [her] daughter come to [her] house...don't let [her] momma [sic] come to [her] house." She testified that she "got out...and called the police on [defendant]" when he finally fell asleep.

The Court determines that it is not necessary to quote plaintiff's full testimony regarding the attack here particularly since defendant was previously convicted of the acts against plaintiff and is estopped from disputing them before this Court.

Plaintiff testified credibly that defendant was never gainfully employed during the marriage. The record established that, after the parties married in September 2002 defendant was convicted and incarcerated for three (3) years. Plaintiff testified that defendant went to jail around 2004 and "came home in 2007 or 2006..." Plaintiff testified that defendant was arrested in 2004 "because he was selling weed in [her] house. He was selling weed. He had a gun. And plus actually what happened that day was he raped me in the kitchen, that's why I was so upset and I called the police. But then like, I don't know, they didn't go by that, they went by when I said that he had a gun and some drugs...."

Plaintiff testified that defendant was in prison from 2004 to sometime in 2006 or 2007. Defendant, on direct, testified that after his release in 2007, pursuant to the terms of his parole, he lived in a men's shelter for year and "maxed out" of the men's shelter on February 2, 2008. She testified that thereafter "he just come to [her] house and just like it was his." She testified that she did not want him to live with her anymore but that he was "a hard person to get rid of. He is a manipulator."

Defendant, on direct, testified that after he left the men's shelter in 2008 he returned to [*5]where plaintiff lived "to help her pay the bills and support her" and that he "had went back down to public assistance to reapply, to help support the household, to help support her."

Plaintiff testified credibly that defendant did not contribute, directly or indirectly, towards her ability to graduate from college or in her obtaining her current employment with a City agency where she earns approximately $35,000.00 annually. She testified that she was only able to secure her currently employment with a City agency in 2005 after defendant was removed from the household and incarcerated in 2004 for selling drugs and possession of a gun. Plaintiff also testified credibly that she graduated from college with a bachelor's degree in June 2008. She testified that she was able to attend and complete college during the marriage because "[h]e was incarcerated." She testified that "if he was around, I would not have been able to finish college." On direct, defendant testified that when plaintiff "acquired degrees through this marriage, through my support, my help. I was there...[w]hen she needed this, she needed that, I gave it to her." Defendant further testified on direct that he "hustled cigarettes" and that he "helped with that money that [he] hustled" and that he "took care of her" generally during the marriage. The Court notes that defendant also testified on direct that he was incarcerated or living in a men's shelter from 2004 into 2008 when plaintiff attended college.

Plaintiff testified that the parties have been living separate and apart since October 11, 2010 when he was arrested for raping and assaulting her. She testified that she has not provided any financial support to defendant since he was arrested in 2010.

According to her statement of net worth, plaintiff reported the following annualized gross income and deductions:



1) Gross income $35,673.00;

2a) Federal Income tax $4,763.46;

2b) New York State Income tax $1,633.58;

2c) New York City Income tax $1,040.00;

2d) FICA and Medicare $2,955.42;

After deductions the plaintiff's net annual income is $25,280.54.

Plaintiff lists in her statement of net worth her annualized expenses as follows:



1) Housing $7,800.00;

2) Utilities $1,800.00;

3) Food $5,760.00;

4) Laundry $720.00;

5) Life Insurance $564.00;

6) Unreimbursed medical $648.00;

7) Household maintenance $480.00;

8) Telephone $1,044.00;

9) Commutation [sic] and transportation $1,500.00;

Plaintiff's annual living expenses total $20,316.16.

Plaintiff indicated that she has no savings accounts and no car. She reported the balance of her 401k is currently valued at $8,333.01 and her government pension has a current vested interest of $18,104.00 with $9,771.87 in unpaid liens.[FN3] Her debts include $37,007.06 in student [*6]loans; two loans of $586.21 and $1,246.00 for various household items; $2,913.80 debit with Capital Credit; further debits totaling $3,045 from various banks and retail stores. Her total debt and liabilities are $44,798.07.[FN4]



Defendant's Contentions

Defendant asserted during the trial that anything [plaintiff] says, I'm challenging that..." At trial defendant repeatedly attempted to prove, in his own words, to "[r]efute the allegations that she is saying that she was raped..." Defendant, on direct, testified that "[h]ell hath no fury like a woman scorned. This woman is being vindictive because she assumed that I was cheating on her. And the only way she could get back at me is by trumping up the charges and making these false allegations that I raped her." He asserted over and over that he is "incarcerated under false allegations" by plaintiff. The Court repeatedly reminded defendant that the Court was "not retrying your criminal conviction."

Defendant testified at trial that in the year 2003-2004 he received Supplemental Security Income (SSI) amounting to approximately $600.00 per month. Defendant testified at trial that plaintiff, essentially, "cost" him money during the marriage because plaintiff was employed and earning an income so his benefits were reduced by approximately $93.00 each month. Defendant testified that he helped plaintiff pay bills and that he actually supported her. The Court does not find defendant's testimony that he supported plaintiff credible. It is clearly belied by the record. Furthermore, defendant did not dispute at trial that he was incarcerated or living in a men's shelter for approximately half of the years that the parties were married before he was convicted and incarcerated for raping plaintiff. Defendant testified that during the marriage plaintiff charged him rent and that the public assistance office would issue checks in plaintiff's name but that he was "never around when she had any type of money as far as with those checks."

Defendant also stated that during the marriage when he lived with plaintiff he received approximately $200.00 in food stamps monthly. He testified that he spent "every dime" to make sure the parties had "food, drinks, meats." Defendant testified that during the marriage "all she had to do was pay for was light bill, cable bill, a cell phone bill" and that he paid for the car insurance and food. On direct, defendant testified that "I have helped this woman in numerous ways through out whole marriage, through our whole marriage. Even before we got married, I took care of her. Rather it was illegal or legal, if I made money, she had it, if she needed it. She needed clothes, I came out of my pocket, asking her size, whatever it was, and went out there and went shopping for her and buy it." The sum of the rest of defendant's testimony, on direct, was that he believed plaintiff to be a woman who is greedy for money and "very jealous" and "[v]ery insecure" because she is eleven (11) years older than he is and, he alleges, he knew how to dress to attract attention from other women.

Defendant did not testify with any clarity to being employed at any time during the marriage. The Court finds plaintiff's testimony that defendant "barely" contributed financially to the marriage and that she provided the parties' financial support credible. The Court also finds plaintiff's testimony that defendant's acts against her during the marriage resulted in her losing employment during the marriage to be credible. It is clear to the Court that plaintiff has been solely financial responsible for her own survival without any financial contribution from [*7]defendant during the marriage and that defendant's course of violent acts against her and his extended periods of incarceration during the marriage detrimentally impacted plaintiff. Clearly, any financial achievements by plaintiff were the result of her own extraordinary perseverance and hard-work despite defendant.

Marriage is recognized as an economic partnership between the spouses in New York (see Fields v. Fields, 15 NY3d 158, 905 NYS2d 783 [2010]). Domestic Relations Law § 236 (B) (5) (d) directs the Court to consider the following statutory factors in accessing the particular facts and circumstances of each case when making a determination of equitable distribution:

(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;

(2) the duration of the marriage and the age and health of both parties;

(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;

(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;

(5) the loss of health insurance benefits upon dissolution of the marriage;

(6) any award of maintenance under subdivision six of this part;

(7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;

(8) the liquid or non-liquid character of all marital property;

(9) the probable future financial circumstances of each party;

(10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;

(11) the tax consequences to each party;

(12) the wasteful dissipation of assets by either spouse;

(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

(14) any other factor which the court shall expressly find to be just and proper.

"Equitable distribution presents matters of fact to be resolved by the trial court, and its distribution of the parties' marital property should not be disturbed unless it can be shown that the court improvidently exercised its discretion in so doing" (Johnson v Johnson, 261 AD2d 439, [2d Dept 1999], quoting Oster v Goldberg, 226 AD2d 515 [2d Dept 1996], appeal denied 88 NY2d 811 [NY 1996]). Furthermore, it is well-settled that trial courts "are vested with broad discretion in determining distributive awards" (Jones-Bertrand v Bertrand, 59 AD3d 391 [2d Dept 2009]).



Fault and Equitable Distribution

More than thirty (30) years ago in 1984 the Appellate Division, Second Department decided Blickstein v. Blickstein which is often cited in this jurisdiction for the proposition that marital fault is not, as a general rule, "a just and proper' consideration in determining equitable distribution of marital property, in light of the over-all purpose of the Equitable Distribution Law" (99 AD2d 287, 290, 472 N.Y.S.2d 110 [2d Dept. 1984]; appeal dismissed 62 NY2d 802, 1984 WL 255469[1984]). In Blickstein, the Appellate Division, Second Department noted that:



It has been repeatedly emphasized that the marriage relationship is to be viewed as, among other things, an economic partnership and that upon its dissolution the accumulated property should be distributed on the basis of the economic needs and circumstances of the case and the parties (see Conner v. Conner, 97 AD2d 88, 107, 468 N.Y.S.2d 482 [2d Dept 1983]; Governor's Approval Memorandum, Session Laws of 1980, p. 1863; Assembly Memorandum, NY Legis Ann 1980, pp. 129, 130). It would be, in our view, inconsistent with this purpose to hold that marital fault should be considered in property distribution. Indeed, it would introduce considerations which are irrelevant to the basic assumptions underlying the Equitable Distribution Law. (id at 291-292).

The Court noted that "fault is very difficult to evaluate in the context of a marriage and may, in the last analysis, be traceable to the conduct of both parties" (id at 292); however, the Court then unequivocally noted in Blickstein that in rare cases where the Court found that one spouse had engaged in "egregious" conduct against the other spouse that it may be a factor the Court could consider in making an equitable distribution award.

Thus we conclude that, as a general rule, the marital fault of a party is not a relevant consideration under the Equitable Distribution Law in distributing marital property upon the dissolution of a marriage. This is not to deny, however, that there will be cases in which marital fault, by virtue of its extraordinary nature, becomes relevant and should be considered. But such occasions, we would stress, will be very rare and will require proof of marital fault substantially greater than that required to establish a bare prima facie case for matrimonial relief. They will involve situations in which the marital misconduct is so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship — misconduct that "shocks the conscience" of the courtthereby compelling it to invoke its equitable power to do justice between the parties. Thus, for example, in D'Arc v D'Arc (164 NJ Super 226, mod on other grounds 175 NJ Super 598, cert den 451 U.S. 971), the New Jersey Superior Court considered the fact that during the pendency of the divorce proceedings the husband had offered $50,000 for the murder of [*8]his wife, even though it had previously been held by the Supreme Court of New Jersey that fault was not to be relied upon (see Chalmers v Chalmers, 65 NJ 186). As the D'Arc court stated, "where a spouse has committed an act that is so evil and outrageous that it must shock the conscience of everyone, it is inconceivable that this court should not consider his conduct when distributing the marital assets equitably" (164 NJ Super 226, 241, supra) [emphasis added] (id at 292).

The following year, in 1985, in O'Brien v. O'Brien, the Appellate Division, Second Department reaffirmed its holding in Blickstein that using an award of equitable distribution to attempt to balance marital fault, perceived or otherwise, in the ordinary course of a litigated matrimonial proceeding would be inconsistent with the intent of the Domestic Relations Law (106 AD2d 223, 485 N.Y.S.2d 548, aff'd as modified, 66 NY2d 576, 489 N.E.2d 712 [2d Dept 1985]). In O'Brien, the wife supported the parties, financially and otherwise, during the marriage while the husband obtained a college degree and then attended medical school. The parties had no property of any kind and only "a few dollars in the bank" when the husband sued the wife for divorce shortly after obtaining his medical license (id at 228). The wife sought an equitable distribution award of the husband's medical license. The Court in O'Brien captioned its discussion of the alleged marital fault of the husband in accepting the wife's financial assistance during the marriage while he obtained his medical license and then sued her for divorce as "BROKEN DREAMS" [emphasis in original] (id at 228). The Court noted in O'Brien that "[t]he wife has expended time (nine years), rendered services (homemaker, companion), contributed funds (principal fund raiser, living expenses, tuition, books, etc.), and, at first blush, it seems grossly unfair that she should not, now, as they stand on the threshold of achieving their common goal, fully share in the material success they both have worked so hard to achieve" (id at 228). The Court continued that while it "is almost irresistible to conclude that the wife has been woefully abused in that the husband, through the long years of college and medical school, accepted her help, financial and otherwise, and then, shortly after receiving his medical license, walked out on her and sued for divorce" it would be inappropriate for the Court to "apply our own notions of equity in order to right this perceived wrong" (id at 228-229). The Court ultimately reiterated its prior decision in Blickstein holding that "marital fault, except in the most egregious case, is not a relevant consideration in the equitable distribution of marital property" (id at 229).

The parties in O'Brien cross-appealed the Appellate Division, Second Department decision, to the New York Court of Appeals which affirmed the Appellate Division, Second Department's holding that marital fault is not a relevant consideration in equitable distribution absent egregious conduct (see O'Brien v. O'Brien, 66 nY2d 576, 498 NYS2d 743 [1985]). The Court of Appeals reasons that "marital fault is inconsistent with the underlying assumption that a marriage is in part an economic partnership and upon its dissolution the parties are entitled to a fair share of the marital estate, because fault will usually be difficult to assign and because introduction of the issue may involve the courts in time-consuming procedural maneuvers relating to collateral issues [emphasis added]" (O'Brien v. O'Brien, 66 NY2d 576 at 590).

In 2002, eighteen (18) years after the Second Department decided Blickstein, the Appellate Division, First Department addressed the issue of marital fault and equitable [*9]distribution in Havell v. Islam (301 AD2d 339, 751 N.Y.S.2d 449 [1st Dept 2002]; lv denied 301 AD2d 339 [NY 2003]). In Court in Havell adopted the position that it is only appropriate for the Court to consider marital fault in making an equitable distribution award where the Court determines that the fault rises to the level of "egregious conduct" (id at 345-346). In detailing what would satisfy the egregious conduct threshold the Court in Havell adopted the definition asserted by Justice David B. Saxe in a 1993 New York County trial court decision of McCann v. McCann, 156 Misc 2d 540, 593 NYS2d 917 (Havell, 301 AD2d at 345).

The trial court in McCann found that the husband's conduct was non-egregious where he deceitfully entered into a marriage based upon his promise to make every effort to have children with his wife and he subsequently refused to fulfill that promise after several years of lying, resulting in the wife, who relied on his promise, passing the age of child-bearing without having a child (see generally McCann, 156 Misc 2d 540). In reaching that determination the trial court considered the role of social harm played in determining whether spousal behavior during a marriage was marital fault, not to be considered by the Court in an equitable distribution award, and egregious conduct, which the Court could consider in an equitable distribution award:

...with respect to the concept of egregious behavior, marital fault may also

be understood as a voluntary act in the context of the marriage that causes some social harm. The difference between ordinary marital fault and egregious marital fault, however, concerns the relative importance of the particular social value involved. The more highly the preservation of an interest is valued by society, the more likely it is that the offensive conduct in question will be deemed egregious. A judge, therefore, in determining whether particular conduct amounts to egregious marital fault, must decide whether the social interest compromised by the offending spouse's conduct is so fundamental that the court is compelled to punish the offending spouse by affecting the equitable distribution of the marital assets (McCann, 156 Misc 2d at 546).

The McCann trial court then reasoned that attempted murder by one spouse of another would constitute egregious conduct because society values the preservation of human life so highly that conduct that offends that interest would warrant punishment (id at 546). The trial court further proffered that the rational behind other trial courts decisions holding that rape, kidnaping, and a long history of severe physical abuse constituted egregious conduct was that "such conduct callously imperils the value our society places on human life and the integrity of the human body" (id at 547).

In Havell, the Appellate Division, First Department affirmed Justice Jacqueline W. Silbermann's New York County trial court decision (186 Misc 2d 726, 718 NYS2d 807 [New York County,2000]) that the husband was entitled to only a 4.5% equitable distribution award of the parties' extensive marital assets based on egregious conduct by the husband. The record established in Havell that during the parties' twenty-one (21) year marriage the husband was verbally and/or physically abusive to the wife and the parties' six (6) children on numerous occasions; that on April 15, 1999 the wife told the husband that she was seeking a divorce; that on April 21, 1999 the husband broke the locks on the door of the wife's bedroom where she slept separately from him; and that on April 22, 1999 the husband set his alarm for 4:00 a.m. and entered the wife's bedroom at approximately 5:00 a.m., wearing yellow rubber gloves, and when the wife woke up he pinned her to the bed and beat her viciously on the head, face, neck and [*10]hands with a barbell (id at 341). The record established that the wife observed her blood, teeth and bone spattering everywhere and that her screams brought the parties' three young daughters, aged 15, 12 and 10, into the room where the husband told them he had killed the wife and that he continued to attack the wife while the children attempted to hold him off of her (id). The wife suffered "severe" injuries as a result of the husband's attack (id). The husband was indicted for attempted murder, pleaded guilty to assault in the first degree and was sentenced to 8 1/4 years in prison (id at 342).

In asserting the McCann definition and factors for determining whether the asserted marital fault satisfied the egregious conduct threshold the Appellate Division in Havell found that the husband's conduct involved the paramount social values of "preservation of human life and the integrity of the human body'" (Havell, 301 AD2d at 345, citing McCann at 547) and that his assault on the wife was "precisely the type of egregious,' conscience-shocking' conduct defined in McCann" (id at 346).

In 1988, the Appellate Division, Second Department in Brancoveanu v. Brancoveanu affirmed the trial court's determination that an equitable distribution award of 60% to the wife and 40% to the husband of the proceeds of the marital residence and denied the husband any equitable distribution of the wife's dental practice was appropriate based, among other DRL 236(B)(5)(c) factors, on egregious conduct by the husband where the record established that during the litigation he offered A.S., an admitted former instructor at a Romanian terrorist camp, $20,000.00 to murder the wife, and subsequently offered A.S. $5,000.00 to change his testimony when he found out that A.S. had told the wife about his machinations (see generally Brancoveanu, 145 AD2d 395, 535 NYS2d 86 [2 Dept.,1988]). The Appellate Division held that "a great injustice would result if the husband, who unsuccessfully contrived to have his wife murdered, was granted an award of a portion of the value of her dental practice" which the record also established that she had built through her own diligent efforts (id at 399).

In 2007, the Appellate Division, Second Department affirmed the trial court's determination that the husband engaged in egregious conduct warranting an equitable distribution award of all the marital assets solely (100%) to the wife where the husband conspired to bribe a Justice of the Supreme Court in an attempt to gain an advantage in the pending divorce (46 AD3d 520, 521, 848 N.Y.S.2d 225 [2d Dept 2007], leave to appeal dismissed, Levi v. Levi, 10 NY3d 882 [2008]).

In 2010, the New York Court of Appeals, in Howard S. v. Lillian S., addressed the impact of a finding of egregious conduct in a Court making an equitable distribution award for the first time since it decided O'Brien in 1985 (14 NY3d 431, 435-36, 928 N.E.2d 399 [2010]).

Before reaching the Court of Appeals, the Appellate Division, First Department affirmed the trial court's finding that the record did not support a finding of egregious conduct by the wife that would be appropriate to consider in making the equitable distribution award (see Howard S. v. Lillian S., 62 AD3d 187, 190, 876 NYS2d 351 [1 Dept.,2009]). The record established that during the marriage the wife misrepresented to her husband that he was the biological father of one of their four (4) children, when in fact Charles — the child in question — was conceived during her extramarital affair and fathered by her lover (id at 188). The husband became suspicious about the child's parentage allegedly " due to all the jokes within his and [defendant's] circles of family and friends that Charles looked nothing like him'" and without telling the wife he [*11]"arranged for a DNA test of himself and Charles which confirmed that he was not Charles's biological father" (id at 189). The husband argued that based on the wife's misrepresentation about Charles' parentage he raised the child as his own and, he alleged, made economic decisions — including spending money on the child, taking profits from marital investments he would have deferred, and continuing the marriage — that he would not have made had he known that the child was conceived as a result of the wife's extramarital affair.

The Appellate Division found that "while defendant's alleged misconduct cannot be condoned and is clearly violative of the marital relationship, it does not rise to the level of egregious fault, since defendant neither endangered the lives or physical well-being of family members, nor deliberately embarked on a course designed to inflict extreme emotional or physical abuse upon them" and therefore her conduct was not egregious (id at 192). Relying on its prior decision in Havell, the Court further noted that "[t]he only cases in which reprehensible behavior has been deemed to constitute egregious fault sufficient to affect equitable distribution have involved extreme violence" (id at 191). The Appellate Division, First Department further noted that:

Egregious fault has also been found in instances of rape (see Thompson v Thompson, NYLJ, Jan. 5, 1990, at 28, col 3 [husband raped his stepdaughter]), kidnapping [sic] (see Safah v Safah, NYLJ, Jan. 8, 1992, at 26, col 5 [in midst of hearing on equitable distribution and custody, husband took couple's two children and fled to Lebanon with them, where he left them in a "war zone"]), and protracted and severe physical abuse (see Debeny v Debeny, NYLJ, Jan. 24, 1991, at 29, col 2 [over course of 37-year marriage, husband broke wife's foot by stamping on it, broke one of her fingers, pulled her arm out of its shoulder socket, cracked two of her teeth by punching her cheek, pushed her causing her to break her arm, pushed her on another occasion causing her to fall and break her ankle, slapped her face between 50 and 70 times per year, and committed other violent acts against her]).Conversely, conduct that courts have found not to be egregious includes adultery (see Lestrange v Lestrange, 148 AD2d 587, 588 [1989]), alcoholism (see Weilert v Weilert, 167 AD2d 463 [1990]), abandonment (see Wilson v Wilson, 101 AD2d 536 [1984], lv denied 64 NY2d 607 [1985]), and verbal harassment coupled with several acts of minor domestic violence (see Kellerman v Kellerman, 187 AD2d 906 [1992]) (Howard S. v. Lillian S., 62 AD3d at 191-192).

The Appellate Division granted plaintiff leave to appeal (2009 NY Slip Op 74834[U] [2009]) and the Court of Appeals affirmed (Howard S. v. Lillian S., 14 NY3d 431, 902 NYS2d 17 [2010]). The Court of Appeals noted



We have, however, rejected the notion that marital fault is a "just and proper" factor for consideration, "[e]xcept in egregious cases which shock the conscience of the court" (O'Brien v O'Brien, 66 NY2d 576, 589-590 [NY 1985]). This rule is based, in part, upon the recognition that marriage is, among other things, an economic partnership and that the marital estate should be divided accordingly. We also observed that "fault will usually be difficult to assign and [that] introduction of the issue may involve the courts in time-consuming procedural maneuvers relating to collateral issues" (O'Brien, 66 NY2d at 590).

The Court of Appeals further noted that mere reprehensible behavior and misconduct that violates the marital relationship is not, by definition, egregious conduct and stated that "[a]t a minimum, in order to have any significance at all, egregious conduct must consist of behavior that falls well outside the bounds of the basis for an ordinary divorce action" (id at 436). Citing to Levi and Havell, the Court of Appeals asserted that while Courts should not regularly be "in the business of regulating how spouses treat one another" during a marriage, it is still appropriate in a "truly exceptional situation" for the Court to consider egregious conduct — that conduct that "falls well outside the bounds of the basis for an ordinary divorce action" and is "outrageous or conscious-shocking" — when making equitable distribution awards (Howard S., 14 NY3d 431at 436).[FN5]



The Facts Presented

Here, it is undisputed that defendant was incarcerated or living in a men's shelter for at least half of the duration of the parties' marriage. Not only does the record reflect that defendant did not contribute financially to the marriage but plaintiff testified credibly that defendant obstructed her employment opportunities during the marriage. It appears from the record that defendant's role in the marriage was solely financially disruptive. Plaintiff testified compelling that, in 2002 during the marriage, defendant's physical and emotional abuse against her resulted in her being too ill to go to work. The Court finds her testimony that this happened so many times that her employer fired her due to her high rate of absences as credible.

The Court finds plaintiff's testimony that defendant was unemployed throughout the marriage credible. Furthermore, defendant did not offer testimony about gainful employment during the marriage. The Court also finds plaintiff's testimony credible that defendant's physical abuse during the marriage resulted in her losing at least one job during the marriage and interfered with her ability to obtain other employment during the marriage.

The Court cannot ignore the fact that defendant seeks equitable distribution of the modest assets that plaintiff has earned not through any financial, physical or emotional support from him but despite the extreme mistreatment she endured from him during the marriage in the few years when he was not incarcerated. The plaintiff testified credible and in chilling detail about the heinous acts defendant perpetrated against her during the marriage.

The Appellate Division and Court of Appeals decisions that address the issue, starting with Blickstein in 1984 and as recently as Howard S. in 2010, are unanimous that marital fault — even when repugnant and clearly conduct that violates the marital relationship — is not an appropriate consideration in making an equitable distribution award but that where the Court finds that one spouse engaged in egregious conduct against the other spouse during the marriage the Court may consider that in awarding equitable distribution of marital assets. The Courts have clearly stated that mere repugnant misconduct and behavior that violates the marital relationship is not enough for a finding of egregious conduct. Tellingly, the Appellate Division, Second Department in O'Brien captioned that part of its decision as "Broken Dreams" where it noted that [*12]the facts presented revealed that the wife may have been "woefully abused" by the husband who "through the long years of college and medical school, accepted her help, financial and otherwise, and then, shortly after receiving his medical license, walked out on her and sued for divorce" (O'Brien, 106 AD2d at 228 [2 Dept.,1985]). While there is no bright line rule of what behavior is and is not egregious it is clear from a review of the case law that a spouse who perpetrates extreme violence against the other spouse during a marriage that callously imperils the value our society places on human life and the integrity of the human body it may be, based on the facts and circumstances presented, a basis for finding egregious conduct.

If the Court has ever been presented with facts and circumstances demonstrating egregious conduct by one spouse against another spouse it is the case at bar. The case at bar is not a case of "broken dreams" where one spouse merely violated the bounds of the marital relationship. The facts presented to the Court, including the credible and compelling testimony presented by plaintiff, reveal that during the marriage defendant engaged in egregious conduct against the plaintiff because he perpetrated violent attacks against her that violated the integrity of the human body, including but not limited to his attack against her that resulted in his conviction for rape in the first degree. Without a doubt, defendant's rape of plaintiff during the marriage shock the conscious of the Court and his subsequent conviction of rape in the first degree unequivocally evidences that defendant callously imperiled the value our society places on human life and the integrity of the human body.

Even if the Court were to award defendant equitable distribution in this matrimonial action it is clear that there are more marital debts than assets. Plaintiff's statement of net worth lists approximately $35,000 in debts, which far exceeds the available assets in approximately $18,104 in plaintiff's statement of net worth. Further supporting this Court's equitable distribution award, in the case at bar, there was no evidence of an economic partnership between the parties during the marriage (see generally K. v. B., 13 AD3d 12, 784 NYS2d 76 [1 Dept.,2004][affirming trial court's award of equitable distribution 65-35% in favor of the wife where the record reflected the parties' respective, unequal contributions to the marriage where the wife was the primary financial supporter for the family and was primary homemaker and caretaker for the parties' children and the husband primarily lived separate and apart from the family]).

Defendant committed numerous acts of violence against plaintiff during the marriage including, but is not limited to, choking plaintiff and pulling her braids out of her head in 2002; fighting her; breaking her glasses and "almost breaking her back" in 2011, and the rapes she endured in 2010. Based upon the totality of the facts and circumstances presented here this Court finds that defendant's conduct against plaintiff during the marriage, including his attack on her in 2010 which resulted in his conviction for rape in the first degree and a sentence of forty (40) years in prison satisfies the "truly exceptional situation" detailed by the Court of Appeals in Howard S. It is clear that defendant's conduct in raping plaintiff is conduct that "callously imperils the value our society places on human life and the integrity of the human body." (McCann, 156 Misc 2d 540 at 546-547)

The only assets with unencumbered value potentially available for equitable distribution in this marriage are plaintiff's 401k and vested pension which plaintiff detail in her statement of net worth as follows: 401k, $8,337.01; pension, $18,104 with $9,771.87 in unpaid liens against [*13]it.

Having considered all of the factors in Domestic Relationship Law 236 (B) (5) (d) this Court denies defendant's application for equitable distribution of plaintiff's pension earned during the marriage based in part on defendant's utter failure to contribute to the marriage and his egregious conduct against plaintiff including the rape he perpetrated against her for which he was convicted of rape in the first degree.

Defendant's egregious conduct herein tragically rises at least to the egregious level of defendant's conduct in Havell where defendant's vicious beating of the plaintiff in front of the parties's three daughters causing plaintiff severe physical injury resulted in him pleading to a class B felony and being sentenced to eight and one-third (8 1/3) years in prison. On appeal, the Appellate Division, First Division found that an equitable distribution award of just 4.5% was within the trial court's discretion based on defendant's egregious conduct (see Havell v. Islam, 186 Misc. 2 726, at 727.)

The Court further notes that in Havell, where defendant was granted an equitable distribution award of 4.5% the parties were married for nearly twenty-one (21) years; the parties had children together; and defendant and plaintiff had, for the first six (6) years of marriage, both earned six-figure salaries until the wife became the sole breadwinner for the final nine (9) years of the marriage.

Here, the parties were married less than half the years that the parties in Havell were married; had no children together; and the record, including plaintiff's credible testimony, established that defendant did not contribute financially in any meaningful way to the marriage and that his vicious and violent acts against her resulted in her losing employment during the marriage and made it difficult for her to obtain employment. Furthermore, unlike defendant in Havell, who earned a six-figure salary during the early years of the marriage, the defendant in the case at bar served a three-year prison sentence and subsequently lived for one year in a men's shelter and was voluntarily unemployed during the rest of the years the parties were married. So, unlike the defendant in Havell, the defendant herein did not contribute financially to the marriage at any point during the marriage.

The Court finds plaintiff's testimony that defendant never shared the benefit of his food stamps with her during the marriage to be credible. Furthermore, the Court categorically rejects defendant's claim that he contributed financially to the marriage because he, allegedly, received reduced government benefits because plaintiff was employed. For the Court to accept defendant's theory that he contributed financially to the marriage because he enjoyed fewer food stamps because of plaintiff's income earned during the marriage would be to punish plaintiff for being employed during the marriage while rewarding defendant for remaining unemployed where defendant offered no testimony that his unemployment was anything other than entirely voluntary. There was no testimony at trial that defendant contributed to the marriage as a homemaker. There were no children of the marriage so neither party contributed to the marriage as a care-giver for marital children.

In the case before this Court, defendant did not contribute financially to the marriage and was not a homemaker. He was convicted of two (2) class B felonies and is serving a forty (40) year sentence for first degree rape committed against plaintiff. In as much as an award of just 4.5% was appropriate in Havell where defendant had at one point contributed financially to the [*14]marriage and was convicted of one (1) class B felony, this Court finds that based upon the existing case law and the facts and circumstances presented here it is appropriate for this Court to exercise its discretion by denying defendant any equitable distribution award (0%) of plaintiff's pension.

Defendant's request for equitable distribution is denied. Plaintiff is awarded 100% of the limited marital assets which she listed in her statement of net worth as valued at approximately $18,104. The record after trial, including plaintiff's credible testimony, reveals that under the facts and circumstances presented here defendant did not contribute financially or otherwise to the marriage. To award any portion of plaintiff's retirement account to defendant, under the facts and circumstances here, would be contrary to the interest of justice and deprive plaintiff of an ability to support herself now and in retirement. Defendant callously seeks to profit, at plaintiff's expense, from his wrongdoing and criminal behavior against her. Plaintiff has solely through her own industry and perseverance, which are extraordinary under the facts and circumstances presented here, acquired a small pension with no support of any kind from defendant and despite his physical abuse of her during the marriage and his egregious conduct in raping her.



The rape defendant perpetrated against plaintiff during the marriage is egregious conduct in that it was so "uncivilized as to bespeak of a blatant disregard of the marital relationship—misconduct that shocks the conscience' of the court thereby compelling it to invoke its equitable power to do justice between the parties" (Blickstein, 99 AD2d 287 at 292; see generally O'Brien, 66 NY2d at 590; ) This determination is consistent with the Court of Appeals decision in Howard S. in that defendant's egregious conduct herein is a "truly exceptional situation, due to outrageous or conscious-shocking conduct on the part of one spouse" against another that "falls well outside the bounds of the basis for an ordinary divorce action" (Howard S., 14 NY3d at 436).

Furniture/Household Items

Defendant seeks an award of certain furniture and household items in addition to seeking an equitable distribution award of plaintiff's small pension. Plaintiff's statement of net worth reveals that she owes debts related to the furniture and household items that defendant seeks in equitable distribution. The Court notes that defendant's need for furniture and household items in the foreseeable future is highly in doubt as he was incarcerated in 2010 for a forty (40) year sentence. If defendant serves his full sentence he will not be released until the year 2050. Plaintiff testified at trial that her wages are being "garnished" for furniture she purchased during the marriage while defendant lived with her. Defendant appears to seek an award of items for which he cannot use and which are encumbered with debts that he is unable to pay. The Court notes that defendant offered no indication at trial that he is willing or able to assume any of the marital debts for the furniture or household items or pay for storage during his extensive incarceration. Defendant's position appears to be that he should be awarded the furniture, which he cannot use while incarcerated, and that plaintiff should remain financially responsible for paying the debts associated with the furniture. It appears, from the facts and circumstances presented here, there is no practical or legitimate motive for defendant to seek such award. Defendant's application for the furniture and household items is denied.



Maintenance Every case of maintenance must be determined on its unique facts and the determination [*15]of an appropriate standard for maintenance rests on a host of factors that the Court shall consider, which are set forth in the Domestic Relations Law § 236 [B] [6] [a] as follows:

(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;

(2) the length of the marriage;

(3) the age and health of both parties;

(4) the present and future earning capacity of both parties;

(5) the need of one party to incur education or training expenses;

(6) the existence and duration of a pre-marital joint household or a pre-divorce separate household;

(7) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;

(8) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;

(9) reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;

(10) the presence of children of the marriage in the respective homes of the parties;

(11) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity;

(12) the inability of one party to obtain meaningful employment due to age or absence from the workforce;

(13) the need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;

(14) the tax consequences to each party;

(15) the equitable distribution of marital property;

(16) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;

(17) the wasteful dissipation of marital property by either spouse;

(18) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

(19) the loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and

(20) any other factor which the court shall expressly find to be just and proper.

It is well-settled that "[t]he amount and duration of maintenance is a matter committed to the sound discretion of the trial court and every case must be determined on its unique facts" (Monroe v. Monroe, 71 AD3d 647, 648, 895 N.Y.S.2d 827 [2 Dept., 2010], quoting DeVries v. DeVries, 35 AD3d 794, 796, 828 N.Y.S.2d 142 [2 Dept., 2006]; see also Raynor v. Raynor, 68 AD3d 835, 890 N.Y.S.2d 601 [2 Dept.,2009]; Zaretsky v. Zaretsky, 66 AD3d 885, 888 N.Y.S.2d 84 [2 Dept.,2009]; Wasserman v. Wasserman, 66 AD3d 880, 888 N.Y.S.2d 90 [2 Dept.,2009]; Brooks v. Brooks, 55 AD3d 520, 867 N.Y.S.2d 451 [2 Dept.,2008]; Jendras v. Jendras, 82 AD3d 1049, 918 N.Y.S.2d 882 [2 Dept.,2011]).

Pursuant to the case law as it existed at the commencement of this action, "the court must consider the payor spouse's reasonable needs and the reasonable needs of the recipient spouse and the pre-separation standard of living in the context of the other factors enumerated in Domestic Relations Law § 236(B)(6)(a), and then, in [its] discretion, fashion a fair and equitable maintenance award accordingly'" (Hartog v. Hartog, 85 NY2d 36, 52, 623 N.Y.S.2d 537, 647 N.E.2d 749 [1995], quoting Domestic Relations Law § 236 [B] [6] [a] [1]- [11]; see Chalif v. Chalif, 298 AD2d at 348, 751 N.Y.S.2d 197 [2002]); see also Griggs v. Griggs, 44 AD3d 710, 844 N.Y.S.2d 351 [2 Dept., 2007]; Appel v. Appel, 54 AD3d 786, 864 N.Y.S.2d 92 [2 Dept.,2008]).

The factors enumerated in DRL 236 must be evaluated in light of the principle that "the overriding purpose of a maintenance award is to give the spouse economic independence" (Bains v. Bains, 308 AD2d 557, 559, 764 N.Y.S.2d 721 [2 Dept.,2003]; see O'Brien v. O'Brien, 66 NY2d 576, 489 N.E.2d 712 [1985]; see also Abrams v. Abrams, 57 AD3d 809, 870 N.Y.S.2d 401 [2 Dept.,2008]). It is well-established that "[s]pousal support should be awarded for a duration that would provide the recipient with enough time to become self-supporting" (Bains, 308 AD2d at 553, supra; see Schenfeld v. Schenfeld, 289 AD2d 219, 734 N.Y.S.2d 465 [2 Dept.,2001]; Granade-Bastuck v. Bastuck, 249 AD2d 444, 671 N.Y.S.2d 512 [1998]); Baron v. Baron, 71 AD3d 807, 897 N.Y.S.2d 456 [2 Dept.,2010]).

The factors provided in Domestic Relations Law §236(B)(6)(a) do not expressly give Courts direction regarding whether "marital fault" should be considered as a factor in determining maintenance. As such, Courts have looked to DRL §236 (B)(6)(a)(20), the "catch-all" provision, to determine whether it should be part of the determination of maintenance [*16]awards.

In 1985, the Appellate Division, Third Department, held in Stevens v. Stevens that "egregious" marital fault is a factor to be considered in determining maintenance as follows:



In fixing the amount of maintenance, we believe that plaintiff's marital fault is relevant (see McMahan v. McMahan, 100 AD2d 826, 827, 829, 474 N.Y.S.2d 974 [Kassal, J., dissenting]; Blickstein v. Blickstein, 99 AD2d 287, 293, 472 N.Y.S.2d 110). Here, beyond openly engaging in an adulterous relationship and threatening future involvement in similar affairs, plaintiff repeatedly berated defendant in the presence of his co-workers at his place of employment, his friends and his family; on a number of occasions she physically abused defendant, striking and scratching him, pulling his hair and even biting him twice; and in the course of breaking into his locked briefcase, she wounded him with a kitchen knife. Without recounting additional instances of marital fault established at trial, we find the circumstances already outlined sufficiently egregious that it would be unjust to ignore plaintiff's behavior. (107 AD2d 987, 988, 484 N.Y.S.2d 708, 710 [3rd Dept. 1985]).

In the case at bar, the marriage lasted for nine (9) years prior to the commencement of this action. The plaintiff's statement of net worth dated February 5, 2015 lists her age as 52 and defendant's age as 42. In the case at bar, defendant is serving a forty (40) year sentence for a 2010 conviction of rape in the first-degree rape against plaintiff. If defendant serves his full sentence he will not be released until the year 2050. Defendant seeks an award of maintenance from plaintiff. Plaintiff works for a New York City government agency earning approximately $35,000.00 gross annually.

During the trial, plaintiff testified credibly that during the parties' nine (9) year marriage, defendant was incarcerated for three (3) years and subsequently lived in a men's home for another year. The Court finds that defendant's claim that he used his government benefits to support plaintiff to be dubious and without merit.

Plaintiff's net annual income, after taxes, is $25,280.54. She has a disposable income of $4,964.38 annually after her living expenses and she is carrying student loans and debt for furniture and household items totaling $44,798.07. It is evident that plaintiff can scarcely meet her own expenses without being required to pay maintenance to defendant.

Here, if the Court awarded maintenance to defendant he would profit from his misconduct and crimes against plaintiff and it would punish plaintiff for her continued efforts to support herself despite defendant's egregious conduct against her during the marriage.



Furthermore, the Court notes that as an inmate in a state prison, defendant's living expenses are paid for by the taxpayers of the State of New York. In as much as defendant has served less than five (5) years of his forty (40) year sentence he has no foreseeable need for his daily living expenses to be supplemented by plaintiff.

This Court finds that awarding maintenance to defendant would be contrary to DRL §236 (B) and to public policy under the facts and circumstances of this case, including but not limited to the following: plaintiff's financial circumstances herein; the relatively short duration of the marriage, especially since defendant was incarcerated or residing in a men's shelter for approximately half the marriage; and defendant's financial and physical circumstances as an incarcerated inmate for a forty (40) year sentence following conviction for rape in the first degree [*17]against plaintiff during the marriage.

It is clear to the Court that the plaintiff's present economic circumstance is a result of her own efforts clearly without any support or encouragement from the defendant and despite the defendant's efforts and egregious conduct. For all of the foregoing reasons the defendant's application for maintenance is denied.



Health Insurance

Pursuant to Domestic Relations Law section 255 both parties are on notice "... that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan." (Domestic Relation Law § 255).

In the event that either party maintains health insurance for the benefit of their spouse, the other party may be entitled to health insurance through a COBRA option, or otherwise may be required to secure their own health insurance. The Court cannot award a party to pay the other party's unreimbursed medical expenses (see Bains v. Bains, 308 AD2d 557, 764 N.Y.S.2d 721 [2 Dept.,2003] ). "Judgments of divorce which direct a parent to pay the other parent's unreimbursed health care expenses "are in the nature of open-ended obligations which this court has consistently disfavored ... Ordinary or routine unreimbursed medical expenses should be considered as included in a maintenance award, and extraordinary unreimbursed medical expenses cannot be awarded prospectively in unfixed amounts" (Gulotta v. Gulotta, 215 AD2d 724, 725, 627 N.Y.S.2d 428 [2 Dept.,1995]; see Zabin v. Zabin, 176 AD2d 262, 264, 574 N.Y.S.2d 75 [2 Dept.,1991] ).

Pursuant to Domestic Relations Law 236[B][8][a], the Court has the authority "to order a party to purchase, maintain or assign a policy of insurance providing benefits for health and hospital care and related services for either spouse or children of the marriage....". Here, defendant seeks an order of this court requiring that the plaintiff maintain health insurance for his benefit.

Defendant's application for health insurance is denied. Defendant is incarcerated in a state prison and, as such, his medical care is provided and paid for by the State of New York.



Life Insurance

Pursuant to DRL 236(8)(a):



[t]he court may...order a party to purchase, maintain or assign

a policy of insurance on the life of either spouse, and to designate

either spouse or children of the marriage as irrevocable beneficiaries

during a time fixed by the court. The interest of the beneficiary

shall cease upon termination of such party's obligation to provide maintenance, child support or a distributive award....

This provision empowers the Court to secure future payments of maintenance and child support, as well as payments pursuant to any distributive award, by directing the payor spouse to purchase, maintain or assignment of life insurance to protect the recipient in the event the payor dies prior to the time the future obligation is satisfied



(see Macari v Marichal, 83 AD3d 942, 920 N.Y.S.2d 731 [2 Dept.,2011]; see generally Moran v Grillo, 44 AD3d 859, 843 N.Y.S.2d 674 [2 Dept.,2007]; Penna v Penna, 29 AD3d 970, 817 [*18]N.Y.S.2d 313 [2 Dept.,2006]; Corless v. Corless, 18 AD3d 493, 795 N.Y.S.2d 273 [2 Dept.,2005]; Comstock v. Comstock, 1 AD3d 307, 766 N.Y.S.2d 220 [2 Dept.,2003]).

There is no basis to order plaintiff to obtain life insurance for the benefit of defendant in as much as there is no award of equitable distribution or maintenance to collateralize.



"Relocation Stipend"

Defendant seeks an order of the Court requiring plaintiff to pay him a "relocation stipend." There is no basis to award defendant a "relocation stipend". Defendant has served less than five (5) years of his forty (40) year sentence. While it is conceivable that defendant may be transferred to another prison facility those expenses would, of course, be paid for by the State of New York. It is clear that defendant will not be relocated anywhere in the near future that would cause him to incur moving costs.



Counsel Fees

Domestic Relations 237 (a), as amended and in effect at that time states, in part, that



"[i]n any action or proceeding brought . . . (3) for a divorce, . . . the court may direct either spouse . . . to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party 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 of the respective parties. There shall be rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in his own name in the same proceeding. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section.

Unlike a pendente lite award of counsel fees, a final order of counsel fees "[i]n the absence of ... a stipulation, an evidentiary hearing is required so that the court may test the claims" of the attorney seeking counsel fees regarding the extent and value of the services rendered (Kelly v. Kelly, 223 A.D.2 625, 636 N.Y.S. 2 840 [2d Dept 1996]; see also Pfluger v. Pfluger, 35 AD3d 828, 828 N.Y.S. 2 118 [2d Dept 2006]).

"An award of reasonable counsel fees in a matrimonial action is a matter within the discretion of the trial court (see Domestic Relations Law § 237; DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 881, 524 N.Y.S.2d 176, [NY 1987]; O'Shea v. O'Shea, 93 NY2d 187, 190, 689 N.Y.S.2d 8, [NY 1999]). In determining a motion for such fees, the trial court must consider, inter alia, the relative financial circumstances of the parties (see Guzzo v. Guzzo, 110 AD3d 765, 973 N.Y.S.2d 265 [2d Dept 2013]; Sotnik v. Zavilyansky, 101 AD3d 1102, 956 N.Y.S.2d 514 [2d Dept 2012]; Chaudry v. Chaudry, 95 AD3d 1058, 945 N.Y.S.2d 110 [2d Dept 2013]; Siskind v. [*19]Siskind, 89 AD3d 832, 933 N.Y.S.2d 60 [2d Dept 2011]; Raynor v. Raynor, 68 AD3d 835, 839, 890 N.Y.S.2d 601 [2d Dept 2009])." (Dunn v Dunn, 116 AD3d 997985 N.Y.S.2d 257 [2d Dept 2014]). The Court may look to which party has superior earning power and whether a party engaged in conduct or tactics which unnecessarily prolonged the litigation (see, e.g., Nee v. Nee, 240 A.D.2 478, 658, N.Y.S.2d 440 [2d Dept 1997]).

As an initial consideration, defendant represented himself pro se in this matrimonial action and has failed to present any evidence of counsel fees incurred in this matter.

Even had defendant incurred counsel fees in connection with this matrimonial action, this Court finds that, although plaintiff is the monied spouse, it would be inappropriate to award counsel fees to defendant under the facts and circumstances presented as plaintiff has barely enough money to support herself. She clearly has no resources available to pay counsel fees on behalf of defendant. It must also be noted that plaintiff herself has not incurred legal fees in connection with this matrimonial action. It is through the efforts of her counsel, "Her Justice", that has enabled her to be represented without fee.

DRL §237 provides for a "rebuttable presumption." In the case at bar plaintiff has met that burden. Plaintiff herein does not have the "power of the wallet." As the Court of Appeals noted in Frankel v. Frankel (309 AD2d 65, 69, 764 N.Y.S.2d 135, [2d Dept.,2003]) rev'd, 2 NY3d 601, 814 N.E.2d 37 [NY 2004]), the statute "is designed to redress the economic disparity between the monied spouse and the non-monied spouse" (O'Shea v. O'Shea, 93 NY2d 187, 190, 689 N.Y.S.2d 8, 711 N.E.2d 193 [NY 1999]). One party to a matrimonial action should not have the advantage simply because he or she has greater financial resources; thus, the Legislature gave trial courts discretion "to make the more affluent spouse pay for the legal expenses of the needier one" (O'Shea v. O'Shea 93 NY2d 187 at 190). Defendant's application for attorneys fees is denied.



Conclusions

In a civilized society where one spouse perpetrates violent acts of domestic violence which satisfy the standard of egregious conduct upon the other spouse it may be a bar to any equitable distribution pursuant to DRL §236(B)(5)(d) and maintenance pursuant to DRL §236(B)(6)(a).

The Court finds the following: (1) The plaintiff is entitled to a divorce on the grounds of DRL § 170(7) based upon irretrievable breakdown in the marital relationship for a period in excess of six (6) months; (2) The defendant's counterclaim for divorce is denied; (3) The defendant's application for equitable distribution is denied and the plaintiff's application for 100% of the marital assets is granted; (4) The defendant's application for maintenance and a "relocation stipend" is denied, (5) The defendant's application for counsel fees is denied.

The plaintiff, despite all she endured, compounded by the defendant's steadfast attempt to interfere in her desire to move on, has displayed both courage and perseverance beyond what any human being should have to endure, and so is noted by this Court.

The foregoing constitutes the decision of this court. All ancillary issues herein are resolved. Plaintiff may resume the use of her maiden name or prior surname if she so chooses. Plaintiff shall settle separate findings of fact and conclusions of law and judgment of divorce, and a copy of this decision within 60 days.



E N T E R:

Hon. Jeffrey S. Sunshine

J.S.C.

:

Footnotes

Footnote 1:Plaintiff entered into evidence a copy of an order of protection from Supreme Court, Kings County Criminal Court in her favor against defendant dated May 2, 2013 to remain in effect until October 2, 2058 which includes a provision that defendant have "no contact thru friends or family."

Footnote 2:The summons is dated September 30, 2011.

Footnote 3:In her statement of net worth, the plaintiff lists her total assets at $18,104.00.

Footnote 4:Plaintiff's statement of net worth lists annual wage garnishment and sick leave payments of $9,530.56.

Footnote 5:This Court notes a footnote to the Howard S. decision that reads "Although the Appellate Division opinion below generally stated the correct standard, to the extent that it can be read to limit egregious conduct to behavior involving extreme violence, the definition should not be so restrictive." (Howard S. v. Lillian S., 14 NY3d 431, 439 n [NY 2010]).