Yehia v GomaAnnotate this Case
Decided on March 20, 2017
Supreme Court, Westchester County
Omkalthoum Yehia, Plaintiff,
Ahmed Goma, Defendant.
Neveen M. Nesheiwat, Esq.
Attorney for Plaintiff
598 Tuckahoe Road
Yonkers, New York 10710
Howard J. Pobiner, Esq.
Attorney for Defendant
99 Court Street, Suite 100
White Plains, New York 10601
Victor G. Grossman, J.
This action presents a clash between the cultural, religious, and economic lifestyles chosen by the parties and the application of New York Law affecting long-term marriages. The conflict arises from the religious and cultural traditions followed by the parties, essentially negating an economic partnership, and Plaintiff's claim of an economic partnership at the dissolution of the marriage. It is complicated by issues of proof of Egyptian real estate interests, as well as the fact that both parties are nearing retirement. The Court is placed in the position of determining the issues, balancing the equities, and achieving some level of equitable relief that incorporates, if not harmonizes, these conflicting positions. It is a task made more difficult by the parties' choices.
History and Trial Testimony
The parties were married in Zagazig, Egypt on July 28, 1977. They have three grown children, ages 39, 34 and 30 at the time of trial. The marriage ceremony was both religious and civil, and Plaintiff has agreed to remove any religious barrier to the remarriage of Defendant. [*2]Between 1985 and 1989, Plaintiff resided in Egypt with Defendant, and their children. Then, between 1989 and 1992, Defendant resided in the United States, periodically returning to Egypt. The parties have resided in New York since 1992, although Plaintiff returned to Egypt between 2008 until 2011.
This action was commenced by the filing of a Summons and Complaint on August 8, 2014, followed by service on September 5, 2014. The trial of this contested matrimonial action took place on May 23, 24, 25, June 7, June 10, August 17, 18 and September 13, 14, 16, 2016.[FN1] Plaintiff's testimony established her entitlement to a Judgment of Divorce on the grounds of the irretrievable breakdown of the parties' relationship for a period of at least six months pursuant to DRL §170(7). Plaintiff was granted a Judgment of Divorce, the signing of which was withheld pending the resolution of the ancillary issues.
Plaintiff was born in Egypt on February 20, 1952. At the time of trial, she was 64 years old. She is now 65. In June 1976, prior to her marriage, she obtained a Bachelor's Degree in Physical Education from Halwan University in Egypt. In 1985, during the marriage, she obtained her Master's Degree in Physical Education from Brooklyn College. Defendant, at the time of trial, was nearly 73 years old. He, too, received an undergraduate degree in Egypt, and later obtained his Ph.D. from Baruch College in 1977.
During trial, the parties entered into two Stipulations. One Stipulation resolved the issues of properties held in Egypt by each of the parties.[FN2] A second Stipulation addressed the division of the sale proceeds of the marital residence in New York, and Plaintiff's claim for counsel fees. The parties agreed Plaintiff would receive the first $300,000.00 of sale proceeds from the marital residence, which would also satisfy Plaintiff's counsel fee requests. Plaintiff agreed that Defendant reserved claims for credits against the marital residence, and other credits. Defendant received $232,000.00, after closing costs, as his share of the marital residence "without prejudice to Defendant's claims for credits in Equitable Distribution against other assets and the Plaintiff's claim that Defendant is not entitled to any such credits in Equitable Distribution" (August 16, 2016 Order). As a result of the two Stipulations, the issues left open for decision included equitable distribution of pension and 401-k Plan assets, maintenance, and credits against [*3]Equitable Distribution.
A significant issue affecting the claims of credits arises from how the parties managed their economic spheres during the marriage. The term "sphere" is used to expressly indicate the minimal, "economic partnership" in the parties' marital relation. The parties are both Egyptian citizens. They led a devout life and marriage in accordance with Islamic Law. Both parties' actions are consistent with their religious and/or cultural traditions. Defendant testified that, according to the tenets of Islamic faith, he is fully responsible to satisfy all the family's needs, and once he does so, the remainder of his income is his. At the same time, whatever Plaintiff earns, according to the Islamic faith, is hers, and she has no obligation to contribute her earnings to the marriage. These beliefs guided their economic activities.[FN3] During the marriage, Plaintiff maintained several bank accounts in her name only, both in the United States and at least two accounts in Egypt.[FN4] In 2007, she also opened an account at TD Bank, and a second account at Chase in 2012. She suggested her income was deposited into a joint account with her husband since 1993 at Chemical Bank (later Chase), but, she failed to disclose a Chemical Bank account in her name alone opened in 1993 into which payroll checks were deposited. She also failed to disclose a second account in 1995 or 1996 into which her payroll checks were deposited. She was significantly less than candid in disclosing this information and particular transactions as if she did not want the Court to know about the various accounts.
For the most part, the parties maintained an independent economic existence. In 1996, Defendant had been paying for Plaintiff's car from the joint account. When Plaintiff opened the new account with her funds, Defendant told Plaintiff she should be responsible for her car payments, and she reimbursed him for two months of those payments, again keeping their financial affairs separate and distinct. Plaintiff also objected to Defendant's using the money in the joint account to visit his ailing mother in Egypt. He made two trips and he was planning a third visit. Plaintiff said if he used the money in the joint account for a third visit, she would open her own account. Defendant went to Egypt. After he returned, Plaintiff had her own account and Defendant had no knowledge what she did with her money. The account in joint names remained until 2012 but only Defendant's salary or consulting income from the daycare center was deposited into it.
Defendant also maintained separate accounts. There is no dispute that he paid the family's housing obligations, including the mortgage, taxes, interest, utilities, insurance, repairs, etc., without contribution from Plaintiff and in accordance with his Islamic teachings. Plaintiff claims from time to time she purchased groceries and clothing for the three children. She also acknowledged Defendant provided funds to her for the family needs. For example, when Plaintiff resided in Egypt between 1985 and 1992, Defendant opened an account for Plaintiff in [*4]Egypt and funded it with his income. At one point, while teaching in Egypt, Plaintiff deposited her income in her own account at Bank Masr, and she also used Defendant's income to acquire real estate in Egypt. Upon returning to the United States in 1992 and finding employment in 1993, she opened her own account at Chemical Bank. The marital residence in Hawthorne, New York was purchased in 1994, with Defendant providing the down payment of $57,000.00 from the income deposited into his account at Chemical Bank. The parties opened a joint account in September 1994, after the purchase of the marital residence. It appears the joint account was used by both parties for a brief period of time until 1996. Defendant paid all household expenses from an account into which only he made deposits, although Plaintiff's name remained on the account until 2012.[FN5] The parties continued to spar over their separate finances. Defendant testified he spoke with his sons in February 2012 and a decision was reached to give his wife $1,400.00/month allocated as $800.00/month for food and $600.00/month for personal expenses. However, since she was receiving $611.00/ month from her pension at this time, he gave her only $800.00/month. On returning from Egypt in June 2012, Plaintiff responded by withdrawing $2,400.00 from the joint account, an amount equal to the four months that she did not receive the $600.00 from Defendant. After this withdrawal, Defendant ceased depositing income into the joint account, and deposited income in his own account, from which he continued to pay household and other expenses. In 2011, he opened an account in his name when he began collecting Social Security payments. Yet, in 2013, after the reconciliation agreement and discontinuation of the first divorce action, Defendant again deposited income funds into the joint account. He also transferred funds into the joint account from his individual account to pay bills. Other than the joint account, the parties maintained separate accounts. Defendant followed Islamic teachings and said, "I never asked her about her money." For a period of time, the parties filed separate tax returns. Beginning in March 2008, after resigning from her job, Plaintiff spent 33 months in Egypt with occasional brief returns to the United States. Defendant did not provide any money to her during this period, but instead, he paid all household bills in the United States and provided for the parties' youngest son who resided with him. Plaintiff had a pension income of $611.00/month and she told him she had enough money to meet her needs in Egypt. Defendant asserts that he and his wife "understood" the accounts would remain separate in the year 2000, when Plaintiff asked Defendant to transfer his separate property in Egypt into joint names and he refused.
Shortly after the marriage, the parties came to the United States so Defendant could pursue his Ph.D. degree in accounting. He received a scholarship and stipend from Al-Azhar University in Cairo to study at Baruch College. The parties' oldest child was born in the United States, one year after the marriage, followed by their second child a few years later. During this time, Defendant also worked as an accountant at the Tremont Day Care Center. The parties remained in the United States from 1977 until 1985 when Defendant received his degree. During this period, Plaintiff also completed her Master's Degree in Physical Education at Brooklyn College. Although there is some dispute between the parties, it appears that both [*5]parties juggled their educational efforts and parenting responsibilities.[FN6] In 1985, the parties returned to Egypt. Defendant taught at Al-Azhar University for three years as a condition of the scholarship and stipend he received. In addition, Plaintiff also taught in Egypt. At the time, they had two young children. Then, in 1989, Defendant obtained a position with Manhattan College, which also sponsored Defendant for a green card and permanent residency.[FN7] For the next three years (1989 - 1992), Defendant traveled between Egypt and the United States and continued his teaching at Manhattan College, accounting, and consulting at the Tremont Monterey Day Care Center ("Tremont") and the East Tremont Child Care and Development Center ("East Tremont"). At the end of August 1992, the parties emigrated to the United States and lived in Harrison, New York. Plaintiff obtained her green card through her husband's employment at Manhattan College. Plaintiff, who had been working as a teacher in Egypt during 1986-1987, obtained a position as a teacher at Tremont in 1993, where she remained until 1998, when she took a position at the Concourse Day Care Center ("Concourse"). She remained at Concourse until 2008. Defendant also was working at Manhattan College, Tremont, and East Tremont. An accident in the classroom kept Plaintiff out of work for six months in 2002, for which she received Worker's Compensation. She returned to work, limited to light duty, where she remained until 2008, when her situation "got very worse, with the stress and everything. I couldn't take it anymore" and she stopped working. She claims if she walks for a half hour, her back starts to hurt.[FN8]
Both parties worked full time. In 2008, Plaintiff began receiving her pension in the amount of $611.00/month and deposited it in an account in her name at TD Bank (formerly Commerce Bank). She claims she used the money for her personal use to support herself. She also withdrew funds totaling $57,500.00 from her 401-k. She made a subsequent withdrawal from her 401-k in connection with her first divorce action but when the action was discontinued, she did not return the funds to the 401-k. Beginning in 2013, her Social Security disability payment of $633.00 was directly deposited into her individual account.[FN9] She claims she stopped using the joint account in 2007. She also claims her husband threatened to hurt her in 2007 if she withdrew money from the joint account for her expenses. Any checks she wrote were drawn on her account. She claims she also used a debit card connected to the joint account for purchases.
In 2012, Plaintiff commenced a matrimonial action against Defendant. The action was [*6]discontinued in early 2013 after some friends of the parties and a local Imam intervened and mediated an agreement. The agreement, inter alia, provided for the discontinuance of the matrimonial action, renovation of the marital residence at Defendant's expense, the payment to Plaintiff of $1,500.00/month, and the transfer of an Egyptian apartment to Plaintiff. The transfer was never completed.
Lynn Mizzy Jonas testified for Defendant. Ms. Jonas is a Vocational Consultant. She has a Master's Degree in Guidance and Counseling, and a Bachelor's Degree in Psychology. Her career in the vocational field spans more than thirty years with an emphasis on people re-entering the work force. She has testified numerous times as an expert. She also met with Plaintiff, reviewed documents, including Plaintiff's resume and documents provided by Plaintiff and she prepared a report. Her interview, research, and reliance on U.S. Department of Labor publications, led her to produce a vocational profile. Notably, she was not provided with any medical reports, but she was provided with a 2012 Decision from the Social Security Disability Office that referred to a disc problem, arthritis and impairment. Although Plaintiff obtained her Master's Degree in 1985 in Physical Education, she took a licensing exam twelve years later and failed. In addition, she pursued course work after her Master's Degree and earned 24 additional credits at Manhattan College through 1999. Her work history was that of an assistant teacher, teacher and Group Leader in a day care center. She worked as a Group Leader for several years from 1998-2000. Her work was interrupted by an injury in 2002, and although she was supposed to return to "light duty" work, she performed regular duty work, including lifting cots, field trips, and other activities for six years until she stopped working in 2008, when she was earning more than $35,000.00/year. In 2012, she resumed teaching, on a volunteer basis, at the Islamic Cultural Center in Stamford, Connecticut. By 2013, she became the Principal, also as a volunteer. Her duties in those years included teaching young children, and as Principal designing curriculum, schedules, conducting ceremonies, organizing activities, and choosing teachers. She also did some work at home, and sometimes missed work due to physical problems. She was observed by the witness in a 15-minute video on YouTube standing and conducting a graduation ceremony with a microphone in one hand and papers in the other hand.[FN10] Plaintiff also told the witness her other interests include walking with friends, study of the Koran, gardening (which occasionally hurt her back), seeing her grandchildren, and visiting Egypt once a year. The witness also saw photographs of Plaintiff working in her yard, and bending down while gardening. The photos were taken in April 2015 and October 2015. Ms. Jonas did not observe Plaintiff completing any physical tasks. The witness concluded, based on her education, career, skills, leadership, and other attributes, that Plaintiff could return to work as a pre-school teacher in Westchester County with a salary range of $36,375.00 to $42,648.00/year. Non-teaching positions, which require little physical effort such as cashier, retail sales, or receptionist, are also available with a salary range of $22,100.00 to $33,060.00 year. Ms. Jonas did not have specific statistical data regarding 64-year-old women re-entering the work force, although more general statistical analyses exist. Ms. Jonas acknowledged that returning to the work force for an older worker who is not physically fit presents more challenges. The witness further acknowledged she did not know if Plaintiff was physically able to perform as a pre-school teacher, and there was no evidence that she was or was not able to do [*7]so. Ms Jonas reviewed and considered the Social Security Disability determination in rendering her report. Ms. Jonas has also assisted people re-entering the work force after they have been found to be disabled by the Social Security Administration. She noted that Social Security Administration has a "back to work" program for people who are found to be disabled.
No Economic Partnership
The premise of equitable distribution is that a marriage is, among other things, an economic partnership to which both parties contribute as "spouse, parent, wage earner or homemaker." (Fields v. Fields, 15 NY3d 158, 162 (rearg. denied, 15 NY3d 819 (2010)); O'Brien v. O'Brien, 66 NY2d 576, 585 (1985)). "The Equitable Distribution Law reflects an awareness that the economic success of the partnership depends not only upon the respective financial contributions of the partners, but also on a wide range of nonremunerated [sic] services to the joint enterprise, such as homemaking, raising children, and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home * * *." (Price v. Price, 69 NY2d 8, 14 (1986)(internal citations omitted); see also DeLuca v. DeLuca, 97 NY2d 139 (2001)).
The equitable distribution of marital assets must be based on the circumstances of the particular case and the consideration of a number of statutory facts (Holterman v. Holterman, 3 NY3d 1 (2004); DRL §236(B)(5)(d)). The basic premise of equitable distribution is that:"modern marriage should be viewed as a partnership of co-equals. Upon the dissolution of a marriage there should be an equitable distribution of all family assets accumulated during the marriage and maintenance should rest on the economic basis of reasonable needs and the ability to pay. From this point of view, the contributions of each partner to the marriage should ordinarily be regarded as equal, and there should be an equal division of family assets, unless such a division would be inequitable under the circumstances of the particular case."
Conner v. Conner, 97 AD2d 88, 96 (2nd Dept. 1983)(emphasis and internal quotations omitted).
"The trial court is vested with broad discretion in making an equitable distribution of marital property and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed." Michaelessi v. Michaelessi, 59 AD3d 688, 689 (2nd Dept. 2009) (internal citations and quotations omitted)). "In determining equitable distribution, the trial court is directed to consider statutory factors, including the income and property of each party at the time of the marriage, and at the time of the commencement of the divorce action, the duration of the marriage, the age and health of the parties, any maintenance award, and the nontitled spouse's direct or indirect contributions to the marriage, including services as a spouse, parent, wage earner and homemaker."[FN11] (Loria v. Loria, 46 AD3d 768, 770 [*8](2nd Dept. 2007); DRL §236(B)(5)(d)(6)).
Marital property is defined in DRL §236 B(1)(c) as "all property acquired by either or both spouses during the marriage..." Under the law of equitable distribution, there is a presumption that all property acquired by either spouse during the marriage is marital property. (See Domestic Relations Law §236(B)(1)(c); DeLuca v. DeLuca, 97 NY2d, supra at 144)). The burden rests with the titled spouse to rebut the presumption of marital property. (DeJesus v. DeJesus, 90 NY2d 643, 652 (1997)). "[M]arital property should be construed broadly in order to give effect to the economic partnership concept of the marriage relationship. By contrast, separate property - denoted as an exception to marital property - should be construed narrowly." (Fields v. Fields, supra at 162, quoting Price v. Price, supra (internal quotation marks omitted)). Separate property is "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse." DRL §236(B)(1)(d). Separate property also includes "property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse." DRL §236(B)(1)(d)(3)).
There is no dispute that the parties' incomes earned during the marriage constitute "marital property" regardless of how the parties treated their income. In the absence of contributions to an economic partnership, the issue is one of distribution of a marital estate. Here, the definition of "marital property" is contrary to the parties' practice, who, by their traditions, neither created nor contributed to an "economic partnership." They have offered minimal testimony about homemaking and child-rearing, and what little testimony, if any, each party offered about parenting responsibilities is disputed by the other. Plaintiff claims she assumed the childcare responsibility but she also worked full-time. Defendant had perhaps a more relaxed college teaching schedule, but he also had his consulting responsibilities at the daycare centers. No testimony was offered about regular cooking, cleaning, housekeeping, laundry, car-pooling, homework, or other duties. Notably, neither party offered testimony that would demonstrate an economic partnership.
An analysis of the spousal contributions to the acquisition of the marital estate is the key to the principle that marriage is an economic partnership. Here, there is no dispute that Defendant financially supported the parties during the marriage, and Plaintiff obtained a Master's degree, which was also paid for by Defendant. There is scant evidence of Plaintiff's contributions to the "economic partnership." There is undisputed evidence of Plaintiff's role as homemaker and caretaker of the parties' young children while she remained in Egypt with the children, and Defendant traveled to and from the United States between January 1989 and [*9]August 31, 1992.[FN12] During this time period, there was little, if any, direct contribution to the economic partnership by Plaintiff; indeed, Defendant was regularly sending her money (K. v. B., 13 AD3d 12 (1st Dept. 2004) appeal dismissed 4 NY3d 776 reconsideration denied 4 NY3d 878 (2005)). In K. v. B., in affirming an unequal distribution of marital property on the basis of the parties' respective contributions to the marriage (a marriage that also included separate residences for each spouse and some furtive banking transactions), the First Department explained:"[t]he unequal distribution of marital assets awarded by the court, [was] not as a punitive consequence but, rather, as a factually supported reflection of the actual contributions each spouse made to the existence and survival of the marriage and in fulfillment of their respective roles as parents and partners."
Id. at 16-17.
The division of the marital estate is not dependent on the size of the economic contribution. Each spouse's contribution need not be identical, or equal, to fashion an equitable distribution. Indeed, quantifying contributions, other than economic, is subjective, at best, and far from uniform. And here, there must also be recognition of the parties' religious and cultural background, as those factors affected their mutual understanding of the estate being created. Although this factor is not among the specific enumerated factors found in DRL §236(B)(5)(d), consideration of it is appropriate within "any other factor the court shall expressly find to be just and proper." (DRL §236(B)(5)(d)(14)). There is an inequitable component where a spouse makes less than a significant economic contribution to the marriage pursuant to the parties' cultural traditions, while retaining an estate created during the marriage and simultaneously seeking an equal distribution of the marital estate in accordance with New York law. While the parties' roles in their marriage should not be second-guessed by negating the contribution of a spouse (Mahoney Buntzman v. Buntzman, 12 NY3d 415, 420-21 (2009)), the basis for those roles should not be ignored in fashioning an equitable distribution of the marital estate where both parties assented to them.
Here, based on these unique circumstances, an unequal distribution of the marital estate, where there were significant unequal contributions to the marriage, is appropriate. The Court recognizes that Plaintiff apparently assumed child-rearing responsibilities while she lived alone with the children in Egypt, and Defendant traveled back and forth. However, the testimony also reveals that Plaintiff retained her employment income in her own account from 1993 to 2008. Thereafter, she retired, began collecting a pension ($611.00/month), and later in 2013 Social Security Disability payments, and she retained those funds as well. From 2008 until 2011, she periodically resided in Egypt, returning to the United States for brief periods. Defendant resided in Westchester with his youngest son and provided for him during this time period. While Plaintiff retained her income and traveled freely, Defendant used his income to pay all household bills, including the mortgage payments, taxes, utilities, insurance, and food.
A further indication of the absence of an economic partnership can be found in an Agreement between the parties dated January 29, 2013 and acknowledged on February 15, 2013. [*10]This Agreement was entered into after Plaintiff commenced a matrimonial action in December 2012. Justice Ecker, by Decision and Order dated August 13, 2015, determined the Agreement,"was not an opt-out agreement binding on the parties in a subsequent divorce proceeding but rather a settlement agreement of the prior action with the consideration therefor being Plaintiff's agreement to discontinue the 2012 action without prejudice."
Notably, the Agreement provides that both parties "should share all information regarding their own properties in Egypt with each other and with their sons." An affirmative obligation to disclose, after thirty-five years of marriage, suggests an absence of disclosure during the preceding time period. Presumably, after a thirty-five-year "economic partnership" such information would be known to the parties. The Agreement also requires a direct payment of $1500.00/month by Defendant to Plaintiff. Such a requirement would not be necessary if Plaintiff had access to Defendant's funds. Of course, it is true many couples have separate accounts or separate responsibilities for various expenses. But here, it appears there was more than simply separate accounts; rather, it appears that each party had a separate financial identity, suggesting the absence of a partnership, let alone an economic partnership. There is also the absence of Plaintiff's economic contributions to the marital estate, while simultaneously relying on Defendant's obligations to provide for the family.
In short, there is little or no evidence of an "economic partnership" notwithstanding the language in Price v. Price (69 NY2d, supra at 15), or Fields v. Fields (15 NY3d, supra, at 162)). Nevertheless, lower courts are compelled to acknowledge the "economic partnership" arising from the exchange of marital vows, if not from the marital relationship. Moreover, Conner v. Conner, 97 AD2d, supra, at 96, suggests that in long-term marriages, the contributions of a homemaker are presumed to be equal to the contributions of a wage earner (see Schwartz v. Schwartz, 67 AD3d 989 (2nd Dept. 2009)); Steinberg v. Steinberg, 59 AD3d 702 (2nd Dept. 2009). If presiding in matrimonial cases has taught anything, it is that human relationships are very complex and do not lend themselves to a "one-size fits all" theory, notwithstanding statutory or case-law definitions. It would be easy to say this marriage is long-term, and then equally divide everything, but it would be inequitable to do so based on the parties' treatment of their respective economic contributions. Similarly, it would be inequitable to divide the marital estate solely on the basis of indirect parental and spousal contributions, which cannot be quantified. Further, there is some indication in the record that the parties, at times, lived under the same roof, but that may have been the extent of their "marriage" and "economic partnership." (See Hessen v. Hessen, 33 NY2d 406 (1974)). In short, the presumption of an equal division of the marital estate in a long-term marriage, as discussed in Conner v. Conner, supra, may be a presumption of judicial convenience, but it cannot be said to be equitable. Fortunately, the presumption is not conclusive, and equitable does not mean equal (see Ackley v. Ackley, 100 AD2d 153, 154 (4th Dept. 1984) appeal dismissed 63 NY2d 605, lv. dismissed 63 NY2d 772 (1984)).
Many decisions reflect unequal distributions based on their particular facts (McLoughlin v. McLoughlin, 74 AD3d 911 (2nd Dept. 2010); Griggs v. Griggs, 44 AD3d 710 (2nd Dept. 2007); Chalif v. Chalif, 298 AD2d 348 (2nd Dept. 2002)). In Ventimiglia v. Ventimiglia, 307 AD2d 993 (2nd Dept. 2003) lv. denied, 1 NY3d 508 (2004)), an award of 8.4% of the value of the husband's partnership interest was increased to 25%. An award of 40% of the plaintiff's enhanced earning capacity was reduced to 20% in Martinson v. Martinson, 32 AD3d 1276 (4th Dept. 2006). A 40% interest in a dental practice was reduced to 15% in Peritore v. Peritore, 66 AD3d 750 (2nd [*11]Dept. 2009), where the court stated:"[t]he defendant is correct that the court improvidently exercised its discretion in awarding the plaintiff a distributive share of 40 percent of the defendant's dental practice. "'Although in a marriage of long duration, where both parties have made significant contributions to the marriage, a division of marital assets should be made as equal as possible...there is no requirement that the distribution of each item of marital property be made on an equal basis'" (Griggs v. Griggs, 44 AD3d 710, 713, 844 N.Y.S.2d 351, quoting Chalif v. Chalif, 298 AD2d 348, 349, 751 N.Y.S.2d 197). Under the particular circumstances of this case, where the plaintiff successfully embarked on her own full-time career and made only indirect contributions to the defendant's dental practice, the award to the plaintiff of 40 percent of the value of the defendant's practice should be reduced to 15 percent (see Wagner v. Dunetz, 299 AD2d 347, 349, 749 N.Y.S.2d 545; Grandadeo-Bastuck v. Bastuck, 249 AD2d 444, 671 N.Y.S.2d 512)."
Id. at 752-53.
Where the parties had not functioned as an economic partnership for many years, there was no basis to equally distribute bank accounts as of the commencement of an action (Taylor v. Taylor, 123 AD3d 693 (2nd Dept. 2014)). Where a party makes a minimal contribution to the marriage, the court can consider those contributions in making an equitable distribution (Evans v. Evans, 57 AD3d 718 (2nd Dept. 2008); see also Wansi v. Wansi, 71 A.D.3d 599 (1st Dept. 2010)). It is each party's contribution, or lack thereof, to the economic partnership that affects the equitable distribution of the marital estate (Hathaway v. Hathaway, 16 AD3d 458 (2nd Dept. 2005) lv. denied 6 NY3d 703 (2006)). A disparate distribution of property was affirmed in Matwijczuk v. Matwijczuk, 261 AD2d 784 (3rd Dept. 1999), where the husband was periodically employed and the wife's income was used to pay all household expenses. DeSouza-Brown v. Brown, 71 AD3d 946 (2nd Dept. 2010), affirmed a 65% -35% distribution in favor of the wife. See also Balsamo v. Balsamo, 200 AD2d 649 (2nd Dept. 1994). The economic contributions to the marriage are appropriate to consider (Kaplinsky v. Kaplinsky, 198 AD2d 212 (2nd Dept. 1993)), but they are not dispositive. See Bartek v. Draper, 309 AD2d 825 (2nd Dept. 2003). Where the spouse's contributions to a marriage are unequal, the marital assets do not have to be divided equally (Naimollah v. DeUgarte, 18 AD3d 268 (1st Dept. 2005)).
What is also troubling in fashioning relief here is the fact that there is a disparity in income, and some degree of Plaintiff's dependence on Defendant for financial support, while Defendant's age and health limits his income production. Yet, neither side offered any medical testimony. See Cerabona v. Cerabona, 302 AD2d 346 (2nd Dept. 2003); Rothbaum v. Rothbaum, 155 AD2d 650 (2nd Dept. 1989); appeal dismissed 76 NY2d 770 on reargument 76 NY2d 918 (1990); Matter of De Nicola v. De Nicola, 108 AD2d 745 (2nd Dept. 1985)).
Guided by these principles of law and those discussed, infra, the Court makes the following findings relative to the statutory factors and the equities of the parties' circumstances:
1. The income and property of each party at the time of the marriage, and at the time of the commencement of the action;
At the time of the marriage in Egypt, the parties had little, if any, property and their income was limited. Each party had obtained an undergraduate degree at an Egyptian university. During the marriage, Plaintiff obtained a Master's Degree from Brooklyn College, paid for by Defendant. Defendant obtained a Ph.D. on a scholarship and stipend. At the time of [*12]commencement of the action, their property consisted of the marital residence and its contents, separate Egyptian rental and investment properties, and deferred compensation. During the pendency of this action, they sold the marital residence, and, in accordance with the parties' Stipulation, they divided their Egyptian properties. The extent and value of each of the Egyptian assets, and Plaintiff's Egyptian bank account was not established. Both parties were employed during the marriage, and each party had deferred compensation. After living in Egypt for several years, Plaintiff returned to the United States and obtained a position as a teacher at a daycare center and retired in 2008. She later undertook volunteer work as a teacher and principal at an Islamic school. Defendant was employed as a faculty member at Manhattan College, and he also performed financial consulting on a self-employed basis and later, under the name Goma Consulting LLC. Plaintiff applied for, and currently receives, Social Security Disability payments, which began in 2013, and it has been claimed that she can work and generate an income. Prior to the commencement of the action, on various occasions, Plaintiff withdrew funds from her 401-k Plan. From a high balance of $78,594.00, she only had $34,068.00 in the Plan as of the date of commencement. She also had savings and checking accounts totaling $31,000.00. Defendant had bank and brokerage accounts totaling $38,500.00 and a 401-k balance of $597,570.00. At the time of commencement, Plaintiff's income included: her pension of $611.00/month, which she had been collecting since 2008; her Social Security Disability of $633.00/month; $1,500.00/month pursuant to the Order of Justice Ecker; and her rental income in Egypt. She had no liabilities and debts. Defendant's income from Manhattan College was $102,000.00 at time of commencement, and subsequently was reduced to $54,000.00 (net) or less, depending on his actual retirement date. In addition, his financial consulting income was $66,000.00 at time of commencement, reduced to $44,000.00 when his youngest son became a member of Goma Consulting, LLC. Defendant also receives a monthly net Social Security payment of $2,300.00, and a pension from an Egyptian university that pays between $80.00 and $90.00/month.
2. The duration of the marriage and health of the parties;
At the time of commencement, the parties were married for 37 years, inclusive of the periods they lived separate and apart. Plaintiff is 64 years old. For purposes of Social Security Disability, she is classified as disabled, but photographs and a videotape introduced into evidence depict her engaging in activities which contradict that claimed disability. In addition, Plaintiff's claimed disability was not medically established in this Court, notwithstanding her receipt of Social Security Disability payments. Her physical activities, vocational analysis and daily exercise at Club Fit suggest an ability to be active.
Defendant is 73 years old. He has reduced his teaching load at Manhattan College after he collapsed in the classroom and was hospitalized for several days, in addition to his subsequent hospitalizations in 2015 and 2016 for internal bleeding and Hepatitis C. Defendant also suffers from Klippel-Trenaunay, a congenital vascular disorder. His retirement is imminent.
3. The need of the custodial parent to occupy or own the marital residence and to use or own the household effects;
By Stipulation, the marital residence has been sold and the proceeds have been divided. Plaintiff received $300,000.00, and Defendant received $232,000.00.
4. The loss of inheritance and pension rights upon dissolution of the marriage as of the date of the dissolution;
Neither party presented proof or argument that this is a factor to be considered. Each [*13]party is also retaining interests in certain real estate in Egypt acquired by themselves or through family members, and each party has lost or surrendered any inheritance rights to the others property in Egypt. Plaintiff currently receives a pension of $611.00/month. Defendant has a pension from an Egyptian University which, he testified, amounts to $80.00 to $90.00/month. Plaintiff has a 401-k against which withdrawals have been made, and hold, a current balance of $34,068.00. Defendant's 401-k has a balance of $597,500.00. Thus, only the loss of deferred compensation remains for consideration.
5. The loss of health insurance benefits upon dissolution of the marriage;
Plaintiff has been covered by medical, optical and dental insurance through Defendant's employer, and it will be available to her through COBRA at a cost. She also receives Medicare, but has not made any claims. Defendant anticipates working for another year at Manhattan College, after which time he will have to pay for his own health insurance above Medicare.
6. Any award of maintenance under DRL §236(B)(6);
The Court has made a maintenance award to Plaintiff in the amount of $800.00 per month until she turns 67, see infra.
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 or homemaker, and to the career or career potential of the other party;
The unique circumstances here negate the existence of any real "economic partnership." Instead, there is a demonstrated history of separate financial spheres where the parties, on rare occasions, may have mixed some marital assets, but never merged them into a marital estate. The brief period that they appear to have both contributed to and used a joint account (1994-1996), is the exception rather than the rule. The parties' repeated affirmations maintaining their separate estates, in 2000, and in their 2013 reconciliation agreement, further strengthens, and evidences, the lack of an economic partnership.
Both parties worked during the marriage and shared parenting responsibilities. The Court is mindful of the early years in Egypt (1989-1992), when Defendant taught in the United States and Plaintiff was the primary caretaker of the children. Consistent with the parties' religious beliefs, Plaintiff retained her income, while Defendant used his income to provide for the family. Plaintiff made no financial contribution to the purchase of the marital residence, did not use her income to help with the mortgage, taxes, insurance, utilities, etc., and did nothing to contribute to home renovations except a contribution to some bathroom renovations in 2013. While Defendant's income paid for Plaintiff's Master's Degree, and 24 additional credits, the attainment of his Ph.D., on a scholarship with a stipend limits Plaintiff's contributions to that degree, and she has clearly received the benefit of any of her contributions as a homemaker. Plaintiff offered no testimony regarding the value of Goma Consulting, LLC, as the successor, in corporate form, of his daycare accounting work.
There is some uncertainty in assessing these criteria. Counsel has argued Plaintiff's Social Security Disability is projected to increase to $1,700.00/month as regular Social Security payments. There are income and assets of the parties in Egypt not fully known to the Court. Plaintiff has not been forthcoming about her income between 1993 and 2008. She is also capable of earning an income for a few more years. The Court notes her maintenance demands would require Defendant to work for the remainder of his life, so she would not have to work. On the other hand, Defendant, to the extent he can remain employed, will have a higher income, [*14]but he cannot be expected to work forever. He will need to rely on his Social Security ($2,300.00/month) and his 401-k Plan to meet his needs.
Were the Court to focus on the long-term aspect of the parties' marriage, and assume contributions were equal, an equal, or substantially equal, distribution would be appropriate. But here, the contributions are far from equal. Plaintiff's income and assets were kept separate, and to the extent Defendant advanced funds to Plaintiff for the benefit of the marital estate, he is entitled to the following credits:
½ down payment on marital residence$28,500.00
½ Kremer valuation$ 1,750.00
½ Markowitz fees$ 2,155.00
½ closing costs$15,814.00
½ Lane Appraisals$212.00
Advance against equitable distribution, per Ecker Order$42,000.00 [FN13]
TOTAL$89,803.00Moreover, Plaintiff's sole retention of her income, her pension, and 401-k must be considered. She was employed from 1993-2008. Based on her testimony, it appears her net income was at least $15,000.00/year or $225,000.00. Her 401-k had a balance as high as $78,000.00 before she invaded it. Considering these assets, the following adjustments can be made:
Estimated Income (1993-2008)
Less: credit to Defendant
The figure of $30,000.00 is an appropriate award reflecting the de minimus, if any, contributions made by Plaintiff to the marital estate. The award shall be paid over the next three years in payments of $5,000.00, on June 1st, and December 1st, of each year, unless paid sooner. In order [*15]to achieve this distribution, it was necessary to add Plaintiff's estimated income to the marital estate. Alternatively, the Court could have simply allocated a percentage of Defendant's 401-k to Plaintiff to accomplish the same result. The Court recognizes some contributions by Plaintiff when she was in Egypt with the parties' young children, and she was receiving funds from Defendant. Notably, at no time did Plaintiff ever claim her needs, or the needs of her children, were not being met, whether in Egypt or the United States.
8. The liquid or non-liquid character of all marital property;
The remaining marital property available for Equitable Distribution is Deferred Compensation, and is liquid.
9. The probable future financial circumstances of each party;
Each party will be relying on Social Security, Medicare, and an allocation of Deferred Compensation to meet their needs. Plaintiff has been receiving pension income and Social Security Disability Income for many years.
10. The impossibility of evaluation of 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;
The real property and/or liquid assets in Egypt were not fully established, due to language, evidentiary, authentication and certification issues.
11. The tax consequences to each party;
Maintenance as herein awarded will be deductible by Defendant and taxable to Plaintiff.
12. The wasteful dissipation of assets by either spouse;
Not applicable. To the extent each party retained separate accounts, they have redefined marital property notwithstanding the statutory definition. Each party used so-called "marital" funds for separate purposes. Crediting one party or the other for the use of marital funds for separate purposes would be nearly impossible in a marriage of this duration. Mahoney Buntzman v. Buntzman, supra. However, some credits may be appropriate where the expenditure benefitted the marital estate. The Court will not selectively examine Defendant's withdrawals any more than it will examine Plaintiff's withdrawals in the three years she spent in Egypt from 2008 - 2011.
13. Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
Both parties acted in accordance with the dictates of their faith and cultural traditions in a way that conflicts with New York's Equitable Distribution Law. They did so from the time they married, and they retained their assets without regard to an "economic partnership" or "marital assets". The Court cannot conclude that a lifetime of behaviors was "made in contemplation of a matrimonial action".
14. Any other factor which the Court shall expressly find to be just and proper;
For the reasons set forth herein, based on the parties' economic arrangements, dictated by their religious and cultural traditions, the Court has considered the absence of a true economic partnership.
Turning to the issue of maintenance, the Court finds that this issue is clouded by the incomplete information about assets and income in Egypt. Each party has real property interests in Egypt, but the evidence offered about those assets was limited. Their Stipulation dividing their Egyptian properties effectively removed the issue from the Court's consideration. In addition, [*16]considering the parties' ages and circumstances, the role of Social Security payments must be considered (Myers v. Myers, 118 AD3d 1315 (4th Dept. 2014); Alleva v. Alleva, 112 AD3d 567 (2nd Dept. 2013); Gilliam v. Gilliam, 109 AD3d 871 (2nd Dept. 2013); Siskind v. Siskind, 89 AD3d 832 (2nd Dept. 2011); Penna v. Penna, 29 AD3d 970 (2nd Dept. 2006)).
Applying the provisions of DRL §236 (B)(6), yields the following results:
1. The income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
Plaintiff's income and property includes the following:
Advance payments of Equitable Distribution
$ 42,000.00 [FN14]
Inputed employment income (1993-2008)
Bank/brokerage account in United States
Social Security Disability income [FN15]
Inputed income (2017-2019)
Defendant's income and property includes the following:
Bank accounts in United States
Income from Manhattan College [FN16]
Income from Goma Consulting
Social Security income
2. The length of the marriage;
The parties were married on July 28, 1977. The action was commenced on August 5, 2014. The marriage lasted 37 years.
3. The age and health of the parties;
See this factor under Equitable Distribution, infra.
4. The present and future earning capacity of both parties;
Plaintiff, despite her claimed disability, is capable of generating some employment income. Despite her age and claimed limitations, she exercises daily at Club Fit, has engaged in physical activity, such as gardening, and she volunteers at least weekly at a local Islamic school. A vocational analysis suggests Plaintiff can find gainful employment earning between $25,000.00 and $42,648.00 per year. Of course, given her age of 65, she is not likely to continue working for a long period of time. Her pension is $611.00/month and her Social Security Disability income is $725.00/month. In addition, she has been receiving an advance against Equitable Distribution of $1,500.00/month, pursuant to Justice Ecker's Order.
5. The need of one party to incur education or training experience;
Both parties have graduate degrees in their respective fields, and neither requires further training.
6. The existence and duration of a pre-marital joint household or a pre-divorce separate household;
The marital residence has been sold and the proceeds have been divided. The parties had separate households for several years while Plaintiff resided in Egypt.
7. Acts by one party against the other that have inhibited a party's earning capacity or ability to obtain meaningful employment;
This factor is inapplicable. There are no allegations of domestic violence, although there was some testimony alleging Defendant's behavior, at times, was excessive under the circumstances. Each of the parties, according to the testimony, had moments where their behavior could have been more civil.
8. The ability of the party seeking maintenance to become self-supporting, and if applicable, the period of time and training necessary therefore;
Plaintiff can become self-supporting by substituting her volunteer work for an income-producing position. Her employment income can reach $30,000.00/year and that amount would be supplemented by her pension and Social Security Disability income.
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;
Plaintiff did not lose any earning capacity by foregoing education, etc. She worked as a teacher in Egypt, obtained her Master's Degree and additional credits, and worked in a day-care setting and educational institution until she voluntarily retired. Following a long sojourn to Egypt, she returned to the United States and resumed working as a volunteer at a local private school.
10. The presence of children of the marriage in the respective homes of the parties;
The children are grown; this factor is inapplicable.
11. The presence of children or stepchildren, disabled adult children or stepchildren, elderly [*17]parents or in-laws that has inhibited or continues to inhibit a party's earning capacity;
The parties' children are adults. There is no indication that the earning capacity of either parent was inhibited by the presence of children. Both parents worked full-time when the children were young. For a few years in Egypt, Plaintiff was the children's primary caretaker, but no testimony was offered as to how that fact affected her earning capacity.
12. The inability of one party to obtain meaningful employment due to age or absence from the workforce;
Both parties are nearing, or are past, retirement age. Still, Plaintiff can find work that provides compensation. She has chosen to work as a volunteer for several years, but that choice does not alter her ability to generate an income.
13. The need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;
This factor is inapplicable.
14. The tax consequences to each party;
Each party has incurred tax consequences as a result of withdrawals from their 401-k plans. In addition, any maintenance awarded herein will be taxable to Plaintiff and deductible by Defendant.
15. The equitable distribution of marital property;
The distributions ordered herein are augmented by the parties' Egyptian properties and income. Plaintiff's retention of income earned during the marriage resulted in nominal, if any, contribution to the marital estate, and will result in a nominal distribution, which when added to her retained assets, is more than equitable.
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;
Plaintiff's request for maintenance is not matched by her minimal, if any, contributions to the marital estate. The residence was acquired, and paid for, by Defendant's income, a marital asset. Plaintiff retained her income and her deferred compensation, also marital assets. For nine years, Plaintiff has been drawing on her pension, totaling more than $65,000.00, without any distribution to Defendant. There was some testimony of her making grocery purchases and clothing for the children, but it appears to be the exception, not the rule. Her indirect contributions as parent and homemaker have been considered on the issue of equitable distribution.
17. The wasteful dissipation of marital property by either party;
This criterion is difficult to apply as the parties kept their finances separate from each other. Any "marital assets" arose by operation of law, rather than from an economic partnership. The failure to contribute to an economic partnership prevented the creation of a marital estate, but cannot be said to be a wasteful dissipation of marital property.
18. The transfer or encumbrance made in contemplation of a marital action without fair consideration;
This factor is inapplicable.
19. The loss of health insurance benefits upon dissolution of the marriage and the availability and cost of medical insurance for the parties;
Plaintiff has Medicare coverage, which is paid for by deduction from her disability payments. When Defendant retires, he, too, can avail himself of Medi care. He currently has family medical coverage through his employment. The parties may need additional or supplemental coverage, [*18]but no testimony was provided as to cost.
20. Any other factor the Court shall expressly find to be just and proper.
The instant action predates the current maintenance guidelines. See DRL §236 (B) (6). While the Court has considered the current statutory criteria, it has not applied them to this action. Instead, applying the statute in effect at the time of commencement and considering the various factors, the Court awards Plaintiff maintenance in the amount of $800.00/month until Plaintiff reaches her 67th birthday.
The Court has considered the parties' additional contentions not specifically addressed herein. To the extent any relief requested by either party was not addressed by the Court, it is hereby denied.
Counsel shall settle the Findings, Conclusions of Law, and Judgment in accordance with this Decision & Order within 30 days of its service upon Defendant's counsel with notice of entry. Any proposed counter judgment shall be submitted in accordance with 22 NYCRR §202.48(c)(2). The parties are directed to retrieve their trial notebooks within sixty (60) days of this Decision and Order, or they will be destroyed.
The foregoing constitutes the Decision and Order of the Court.
Dated: March 20, 2017
Poughkeepsie, New York
HON. VICTOR G. GROSSMAN, J.S.C. Footnotes
Footnote 1:This is the parties' second action for divorce. Plaintiff brought her first action for divorce on December 20, 2012, under Westchester County Index No. 5238/2012. That action was settled and discontinued by a reconciliation agreement, dated January 19, 2013, and acknowledged on February 15, 2013.
Footnote 2:The real property in Egypt has been a source of friction between the parties for many years. Each party has interests in real property in Egypt, either individually, or in common with their respective family members, and either by inheritance or purchase. Some of that property is income-producing, but the amount of income is in dispute. In or about 2000, Plaintiff sought to have her name added to the title of Defendant's properties, but Defendant refused. The value of the individual properties, and the particular interests held by each party were not fully established on the record at the time of the Stipulation, but remain known to the parties. Undetermined issues concerning unknown values, income production and other factors make consideration of these properties on the issues of equitable distribution and maintenance difficult to apply. See DRL §236(B)(6).
Footnote 3:The Court neither received any expert testimony in the Islamic faith, nor is it applying any provisions of Sharia Law. Instead, it is acknowledging the manner in which the parties defined their marital relation.
Footnote 4:Counsel did not present a complete chronological history of their client's bank accounts, or their opening and closing, or other changes in account identification. Instead, they presented a disjointed banking history in support of their positions. The Court has identified the salient actions regarding their separate activities based on the testimony.
Footnote 5:Defendant testified that the reason he kept Plaintiff's name on the account was so that she could have access to funds in order to pay for his funeral. He has certain health issues including a vascular condition known as Klippel-Trenaunay, and Hepatitis C, which he contracted from a blood transfusion in 1992 while receiving treatment for Klippel-Trenaunay.
Footnote 6:Neither party offered detailed testimony regarding parenting responsibilities when their children were younger, nor did they offer detailed testimony about household obligations and how they were handled.
Footnote 7:Defendant had been in the United States on an H-1 student Visa prior to his employment by Manhattan College.
Footnote 8:There was no medical testimony or documentation about the 2002 accident, or its effects in 2008.
Footnote 9:The disability benefits are currently $977.00/month less a Medicare deduction of $344.00/month, leaving a net payment of $633.00/month.
Footnote 10:The videotape disappeared from YouTube after the witness observed it.
Footnote 11:Specifically, the factors include, as set forth in DRL §236(B)(5)(d): 1. Income and property of each party at the time of the marriage, and at the time of commencement of the action; 2. Duration of the marriage and age and health of the parties; 3. Need of custodial parent to occupy or own the marital residence; 4. Loss of inheritance and pension rights; 5. Loss of health insurance benefits upon dissolution of the marriage 6. Any award of maintenance; 7. Direct and indirect contributions; 8. Liquid or non-liquid character of the property; 9. Probable future financial circumstances of the parties; 10. Difficulty of valuing marital assets; 11. Tax consequences to each party; 12. Wasteful dissipation of assets by either spouse; 13. Transfer in contemplation of action; 14. Any other factor which the court shall expressly find to be just and proper.
Footnote 12:Between 1985 and 1988, the parties lived in Egypt while Defendant taught at a university. There is some disagreement between the parties as to the allocation of child-rearing responsibilities during this time period.
Footnote 13:Justice Ecker's January 24, 2015 Decision and Order acknowledged the equitable aspect of the monthly payments of $1,500.00.
Footnote 14:Pursuant to Justice Ecker's January 24, 2015 Decision and Order.
Footnote 15:According to Defendant, this amount is projected to increase to $1,700.00/month at age 67.
Footnote 16:This income will be eliminated when Defendant retires at the end of the 2016-2017 academic year.