R.I. v T.I.
Annotate this CaseDecided on August 17, 2018
Supreme Court, Kings County
R.I., Plaintiff,
against
T.I., Defendant.
XXXXX
Elliot Green, Esq.
Attorney for Plaintiff
32 Court Street, Suite 404
Brooklyn, New York 11201
David Seidemann, Esq.
Attorney for Defendant
974 East 27th Street
Brooklyn, New York 11210
Jeffrey S. Sunshine, J.
This Court is called upon, in a short-term marriage, to determine inter alia the issues of refusal to remove barriers to remarriage, maintenance, child support, equitable distribution and counsel fees. The plaintiff, a physician, extensively commingled personal and business assets, [*2]invoked his Fifth Amendment right against self-incrimination related to specific financial issues, attempted to make a mockery of the judicial process, which he commenced, and acted in a manner designed to degrade the defendant; however, in doing so, he destroy his own veracity and credibility.
The issues before the Court in this action for divorce are maintenance, child support for the parties' one (1) minor child, equitable distribution and counsel fees.
The parties were married in a religious ceremony on March 27, 2014 and they have one (1) child who was born in October 2015. Plaintiff commenced this divorce action on December 23, 2015 by filing a summons and verified complaint. A request for judicial intervention was filed on March 9, 2016. The preliminary conference was held on April 25, 2016. Defendant filed an answer and counterclaim on the first day of the financial trial on September 11, 2017.
During this litigation the plaintiff sought DNA testing of the parties' infant child, who was born after the plaintiff filed for divorce, but by written decision and order dated April 22, 2016 the Court found that, in light of plaintiff's verified complaint that there is one child of the marriage and naming that child the plaintiff was judicially estopped from subsequently asserting a position inapposite of his prior position. It was undisputed that the plaintiff has never seen the child, who was born in October 2015, and he has never sought parenting time or any access to the child during this litigation (see R.I. v. T.I., 51 Misc 3d 1215(A) (NY Sup. Ct. 2016) [April 22, 2016]).
Custody and Parenting Time
On the record on September 11, 2017 the plaintiff testified that he was not seeking custody of the parties' infant child and that he was not requesting parenting time with the child. Based upon plaintiff's consent, defendant is award sole legal and residential custody of the parties' child. Based upon plaintiff's refusal to have any contact with the parties' infant child the plaintiff is not awarded any parenting time with the parties' child (id).
Pendente Lite Support
The Court issued a pendente lite support award in a written decision dated April 22, 2016 which ordered plaintiff to pay to defendant $2,966.67 monthly in spousal maintenance; $2,025.83 monthly in basic child support; the child's monthly child care expenses and health insurance premiums for a plan selected by the defendant.
Trial Dates
The Court heard testimony in the trial on financial issues between the parties including equitable distribution, maintenance, child support and counsel fees on September 11, 2017; September 18, 2017; December 4, 2017; December 5, 2017; December 6, 2017; December 7, 2017; December 8, 2017; December 11, 2017; and December 12, 2017.
On December 13, 2017 the parties and counsel appeared for oral argument of motion sequences No.8, #9 and #10 after which the Court issued an oral decision on the record resolving all relief requested in motion sequences #8, #9 and #10 except for the issue of plaintiff's request for a "refund" of the health insurance premiums he paid to the defendant during the litigation which was reserved to the trial court for determination in the written trial decision (see Order dated December 14, 2017). The parties stipulated for the Court to determine the issue of counsel fees upon submission of papers on the record on December 12, 2017 (see Order dated December 12, 2017). The date of March 12, 2018 was selected by counsel on the record for submission of [*3]minutes and summations and the Court signed an order dated December 14, 2017.
The Facts
Plaintiff is forty-two (42) years old. He was born in Tajikistan in the former Soviet Union where he attended public school and medical school which he testified was free. He testified that prior to leaving the Soviet Union he worked as a barber. Plaintiff immigrated to the United States in 1997 when he was twenty-one (21) years old. He worked as a "busboy at a Jewish facility on Upper West Side." He completed his medical residence in Queens and in Brooklyn before opening a private medical practice in 2008.
Defendant is thirty-two (32) years old. She graduated from college and obtained a graduate degree in health science specializing as a physician's assistant from Touro College with a grade point average (GPA) of 4.0. She testified that she was not formally employed during the marriage but that she assisted the plaintiff in his private medical practice performing clerical and medical services.
Grounds for Divorce: DRL 170(7)
The Court held an inquest on September 11, 2017 during which the plaintiff testified as to the grounds of DRL §170(7) irretrievable breakdown in the marital relationship for a period in excess of six months inasmuch as all the ancillary issues were not resolved, the Court reserved decision. As part of that inquest, the plaintiff testified having affirmed that he would comply with DRL 253 by removing all barriers to remarriage. Defendant filed an answer and counterclaim on the first day of the financial trial on September 11, 2017.
Equitable Distribution: Bank Accounts
Plaintiff's sworn statement of proposed disposition lists "assets claimed to be marital property: $106,000.00 savings" and he proposes that defendant be awarded equitable distribution of those savings in the sum of $53,000.00. Plaintiff offered no rational or legal basis for limiting the equitable distribution to this sum or how he calculated that he believes the marital "savings" are $106,000.
Child Care Expenses
The record established that the Court ordered plaintiff to contribute pendente lite to defendant's child care expenses by order dated April 22, 2016. During cross-examination on December 6, 2017 the plaintiff testified that he had made no payments at all toward child care expenses in compliance with that order. Plaintiff testified that "you can find a day care for about $300 a month for the full-time" and he objected to the monthly expense of $1,500 for the child care selected by the defendant. Plaintiff testified on redirect that defendant only provided a redacted receipt for her alleged day care expenses and never provided a fully executed contract for day care or a name or an address of the day care.
Defendant testified that the child has been in full-time day care at the cost of $1,500 monthly since June 2017 and, despite a court order requiring plaintiff to pay day care expenses for the child, the plaintiff has not paid any of the day care costs and he has not provided any child care for the child himself. On cross-examination she testified that the child is in full-time day care because "that gives me the ability to search for positions and to go onto [sic] interviews. I cannot just throw him in and take him out, throw him in and take him out, he has to be able to acquire and adapt to an environment that is safe for him and to be happy to be there." She [*4]testified that she selected a day care for the child instead of a babysitter because "...I want my child to be able to [sic] adaptable to a social world."
Health Insurance
By written order dated March 22, 2016, the plaintiff was ordered to obtain health insurance on behalf of the defendant and the parties' child by March 25, 2016. Thereafter, based upon plaintiff's failure to obtain health insurance pursuant to the March 22, 2016 order the Court directed, by written order dated April 22, 2016, the plaintiff to pay the premiums of a health insurance policy selected by the defendant.
On cross-examination, when questioned whether he forged the defendant's signature on a health insurance policy, the plaintiff testified that he signed the defendant's name on the form "to expedite" the process. Plaintiff testified that the only health insurance premiums he paid were based on the policy that he selected for defendant despite the court order dated April 22, 2016 that permitted the defendant to select the health insurance policy for herself and the parties' young child based upon the plaintiff's non-compliance with the court order to obtain and pay for health insurance for the defendant and the parties' infant child.
The record established that on April 22, 2016 the Court directed the plaintiff to pay for a health insurance selected by the defendant. Defendant testified that, pursuant to the Court order dated April 22, 2016, she selected a health insurance policy for herself and the child that "would cover everything and not have a lot of out-of-pocket expenses." She testified that the cost of the health insurance policy she selected was $1,635 monthly. She testified that the plaintiff refused to pay the full monthly premium for the health insurance she selected and, instead, only paid $976 monthly to her based on the cost of a health insurance that he selected for her.
Plaintiff testified — apparently unapologetically — that he completed an application for a health insurance policy on behalf of defendant, without her knowledge or consent and after the Court had ordered him to pay for a health insurance selected by the defendant, during this litigation that included signing her name without her consent. The insurance policy application was never effectuated. Plaintiff testified that he signed defendant's signature on the health insurance policy for convenience. He did not testify that defendant consented to him signing her name on that application and the defendant credibly testified that she did not give the plaintiff permission to sign her name to the application. Plaintiff testified that he does not carry health insurance for himself.[FN1]
Defendant testified that the child is currently covered by Fidelis Medicaid because the open enrollment period of the health insurance policy that she selected had closed when the plaintiff started providing her money toward the premiums and that she put the money he eventually provided her "away" so that when the open enrollment opened she could obtain the policy.
"Refund" of Health Insurance Premiums
Defendant testified on cross-examination that plaintiff started receiving health care payments of $966 monthly from the plaintiff in December 2016 and that all that money is "on the side in the bank for the insurance." She testified that she was eventually forced to use the health insurance payments toward child care costs because the plaintiff refused to pay for child care and he was "always late" making his court ordered maintenance and child support payments.
She testified that "there were no child care payments made, but child support and maintenance he did make but it was always late. And I can understand that but other people that you do business with can't. So yes, I did use the insurance money to pay for his child care." She testified that her attorney had to file "quite a few" months on her behalf seeking to compel plaintiff to pay his existing support obligation because the payments were not made or were late.
Plaintiff requests that the Court order the defendant to "refund" the health insurance payments he provided during the litigation.
Plaintiff's Income
Plaintiff testified that he considered himself to have multiple professions, including doctor, barber and watchmaker and that he was also an entrepreneur. Plaintiff testified on cross-examination that he did not respond to discovery demands from defendant related to an online application called "Kikiyaya" because it is his "intellectual property."
Plaintiff testified that his income during the marriage was the highest when the parties married as a result of income from his private medical practice and from full-time employment at Interfaith Hospital from June 2011 until June 2015 when he contends he was "terminated."
He testified that after his full-time hospital employment ended he obtained per diem work at two (2) different hospitals in upstate New York between 2015 and 2017 where, he testified on redirect, he earned approximately $250.00 hourly, but that both positions had been "terminated." He testified on redirect that he sought employment upstate because it "[t]hey paid better there" but that they only him to work "one to two times a month." Evidence entered at trial from one of the update hospitals where plaintiff worked from May 2017 to September 2017 revealed that plaintiff earned $280.00 hourly and worked approximately "4-5 shifts a month." He testified that his current income is derived from the two (2) days a week he works at his private medical practice and some per diem work at an urgent care center where he earns $110.00 hourly. He testified that he is not looking for additional employment opportunities or any full-time employment positions to replace the full-time hospital employment he had when the parties married.
Plaintiff's Private Medical Practice
Plaintiff testified that his private medical practice is open two (2) days a week for eight (8) hours. He testified that he sees between eight (8) and twenty-five (25) patients a day or approximately 130-150 patient visits monthly (approximately 1,800 patient visits annually). He testified that he does not have enough patients to open his private medical practice for additional days.
Plaintiff testified that the only medical staffing that supports him in his medical practice are "volunteers from the medical assistant school" who each provide "200 to 275 hours a year up until they complete their internship." He testified at trial that he does not employ any receptionist/office support staff, does not employ an office manager. Plaintiff testified on cross-[*5]examination that he had never hired an office manager and that he did not know the standard salary for that position. He further testified that he does not employ anyone to do billing for his medical practice and, on cross-examination, he testified that "nobody does the bookkeeping."
Plaintiff testified that he paid the vendors for his medical supplies using his credit cards; however, testimony and documents, including plaintiff's credit card statements entered into evidence at trial, showed only nominal sums for medical supplies — for example, just $1,492.52 for medical supplies in 2015.
Subsequently at trial, when confronted with his deposition testimony that he does employ office staff and that he pays them in cash the plaintiff asserted his Fifth Amendment right against self-incrimination and refused to answer any further questions related to whether he employs support staff or medical staff in his private medical practice.
Plaintiff initially testified that all of his patients pay using medical insurance and that any co-pays are paid using credit card or check. He testified on cross-examination that he collected co-pays paid through Square (an electronic payment system) as follows: $5,808.75 in 2014; $3,795.00 in 2015; $3,467.00 in 2016. On redirect, plaintiff testified that "about 99 or 100 percent" of his patients pay for his medical services using insurance and that "approximately 85 to 90 percent" of those insurance payments are "Medicaid based" and those patients do not have co-pays or deductibles. He testified on redirect that the co-pays for private insurance are paid as follows: "about 80 percent" by credit card; "[a]bout five to ten percent" by check and the remaining "one percent out of the private patient" are paid in cash and that he received a total of "about $15 to $30" in cash every two weeks from patients paying co-pays for private insurance. He conceded that he "pocket[s] those monies." On re-cross, plaintiff testified that he collected approximately $720 annually in cash co-pays from his private medical practice. When questioned on cross-examination about whether he kept track of walk-in patients and home visits and whether he kept track of how much money he made off walk-in patients and home visits he testified "Why do I need to keep track of the money that I am making?"
He testified on cross-examination that his appointment schedule for his private medical practice is kept track in "the computer system" and that he is able to "print out the patient log, the appointments..." Copies of plaintiff's patient logs from 2013, 2014, 2015 and 2016 were entered into evidence. Plaintiff offered no testimony about who maintains these logs and maintained his Fifth Amendment right against self-incrimination related to all questions about whether he employed staff and how any staff was paid.
Plaintiff testified on cross-examination that the patient logs reflected "more or less" the patients he saw in those year but that some of the "patient [sic] that listed there may not show-up." He testified that he also treated "walk-in" patients but that he did not provide any sign-in sheet for walk-in patients because he did not keep a record of walk-in patients and he did not know how many walk-in patients he treated in the four (4) years between 2013 and 2016.
Defendant, to the contrary, testified that plaintiff's private medical practice is usually open from 9 a.m. to 8 p.m. "six days a week, unless there was an emergency on Motzei Shabbat."[FN2] She testified that when the parties were dating and after they were married she assisted the plaintiff with his medical practice by answering telephones, taking blood and medical histories [*6]for patients and accompanying plaintiff on patient home visits. She testified that she was not paid a salary for assisting the plaintiff in this manner. She testified that plaintiff "would see up to 40 or more" patients a day and that, based on her experience working at the front desk for plaintiff's medical practice, "most of his patients had co-pays or deductibles" that were paid in cash. On cross-examination defendant testified that the co-pays "depend on the patient's insurance, it could be $20, $50, $70" and that some patients who did not have insurance paid the plaintiff in cash. She testified that she regularly collected "maybe thousand or two" each day from co-pays and deductibles and that plaintiff would take these envelops of cash each day. On cross-examination plaintiff claimed that his prior deposition testimony that he had enough cash to stack it up tall enough to be a "leg of a table" and that he had money in banks on Saturn and Venus was a "joke."
Defendant testified that plaintiff is also affiliated with a medical practice in Queens and another one in Coney Island, Brooklyn. She also testified that plaintiff worked at more hospitals than the ones he admitted to on direct examination that he worked at "Wyckoff Hospital. New York Community Hospital. Kings Brook. Maimonides. Lutheran" in addition to Interfaith and the two (2) upstate hospitals where he testified he had worked during the marriage.
Plaintiff's Separate Property
He testified that he owns two (2) properties outside of New York City but that neither one generates income. He testified on cross-examination that he did not provide financial documentation for these properties during discovery because "[t]here are none." Defendant testified that plaintiff "flips" houses.
Rental Space
Plaintiff testified on cross-examination that during the marriage he leased space from the building where he operates his private medical practice to a chiropractor and a GI doctor but that he could not "recall" if he had written leases with them. He testified that these tenants paid by check but that he could not recall how much rent they paid. On cross-examination he testified that he did not provide those rent checks during discovery because "they were deposited." Defendant testified that these doctors who rented space in plaintiff's medical building also paid plaintiff a percentage of the fees that they collected from their patients.
Plaintiff's Income Tax Returns
Plaintiff's 2014 income tax return lists total income of $335,453 as follows: W2 income from his full-time employment at the hospital as $190,499; dividends of $1,818; $3,589 in business income [FN3] ; and $139,547 income from his S-corp private medical practice. $335,408 in total income less $48.00 for self-employment tax for adjusted gross income of $335,405.00.
Plaintiff's 2015 income tax returns lists total income of $406,160 as follows: W2 income from his full-time employment at the hospital as $133,613; dividends of $2,441; $57,802 in business income; and $222,078 income from his S-corp private medical practice. $415,934 in total income less $774.00 for self-employment tax and $9,000.00 for alimony paid for adjusted gross income of $406,160.00.
Plaintiff's 2016 income tax returns lists total income of $189,568.00 as follows: no W2 [*7]income; dividends of $2,472.00; $81,639 in business income; and $137,956 income from his S-corp private medical practice. $222,067 in total income less $5,768.00 for self-employment tax and $26,731.00 for alimony paid for adjusted gross income of $189,568.00.
Defendant's Income
The defendant was not employed when the parties married or during the marriage. It is undisputed that defendant obtained her physician's assistant degree prior to the marriage but that she did not pass the licensing exam until after the marriage.
Plaintiff testified that defendant did not obtain employment during the parties' marriage and that she has never worked for him at his private medical practice or saw patients there because although she obtained her license she did not obtain a Drug Enforcement Administration (DEA) number or malpractice insurance which are, he testified, both required in addition to a license to work as a physician's assistant. He testified that he attempted to assist the defendant obtain a DEA number in 2015 but she "did not disclose" her social security number to him. Defendant testified on cross-examination that she believed she was covered under the plaintiff's malpractice insurance when she assisted him in his private medical practice. Plaintiff testified that defendant was offered a physician's assistant position paying $60 hourly at the hospital where he was working at the time but, he testified, the defendant did not accept the offer because "she wanted more money."
Defendant testified that she has been and continues to look for work as a physician's assistant and has kept a log of her employment search. She testified that she has encountered obstacles such as job offers that would require her to work on Friday nights and Saturdays which she cannot take because she is a Sabbath observer and other jobs that would require a flexible shift schedule but she cannot take those jobs because "I don't have anyone to stay with the kid at night. I don't have a father that would be willing to help. There is just — — it's just me and the kid." On cross-examination she testified that she was unable to accept one employment opportunity because she found out that the plaintiff worked at the same urgent care center.
She testified on cross-examination that she has interviewed once or twice a month at hospitals, urgent case centers and private doctor's offices and that "[a]t this point I am ready to take anything, and I don't — — salary is not an issue for me right now because I need a job." She testified that she continues to work part-time per diem shifts "when they call if I am available, if I have a babysitter, and if that time slot fits into my chance to go and fill in" earning $65.00 hourly. Defendant's 2016 income tax return reports the sum of $49,345 as follows: $19,679 as "wages, salaries, tips, etc." and $29,667 as "alimony received."
Plaintiff did not retain or introduce any evidence or testimony from a vocational expert regarding defendant's earning ability or the availability of employment options. Plaintiff testified that the salary for a physician's assistant was between $40 to $50 hourly in an office setting; $60 and $70 hourly in an emergency room; and as much as $100 in an urgent care center.
Lifestyle
Plaintiff testified that he was the sole financial supporter of the family. He testified that the parties lived a "regular" lifestyle during the marriage: occupying a modest one-bedroom rental apartment and that the parties went on one (1) vacation during the marriage to St. Thomas.
On cross-examination, plaintiff conceded that during his deposition he testified that he took the defendant to eat at "the most expensive" restaurants when they were married. On [*8]redirect plaintiff testified that these "expensive" restaurants were paid for "by the pharmaceutical companies." He testified that he pays his father's New York City Housing Authority apartment rent of approximately $185 monthly. He conceded that he purchased silver "religious things" for himself and for his mother during the marriage, including a pair of $6,000 silver candlesticks for his mother, but testified that he could not recall whether he paid using cash; however, he testified that he gave the defendant "gifts in cash" during the marriage whenever she asked for money.
Plaintiff conceded on cross-examination that he sold the furnishings from the marital residence after he commenced this divorce action and that he used the money to buy food for himself. Defendant testified that when she regained entry to the marital apartment with the assistance of the police a few days later the apartment was empty except for some garbage bags of "broken" items.
Defendant testified that plaintiff controlled the parties' finances during the marriage and that she did not have access to his personal checking account, business checking account or tax returns and she did not have access to an ATM card during the marriage. She testified that if she needed something he would give her cash and that he bought her "[j]eweltry, electronics, anything" that she wanted. She testified that "[i]f he wanted to go to his mother's and I wouldn't go. If I wouldn't treat his family a certain way. If I wouldn't give him what he wanted..." that the plaintiff stopped being generous with her.
She testified that the parties had company over to their home "once or twice a week" and that the parties observed the Sabbath. Defendant testified that during the marriage the parties kept kosher and, she testified, kosher food was "much more expensive" than non-kosher food.
Plaintiff testified that he "might" have loaned someone $25,000 to open a bakery but he did not recall when that happened and he did not recall the terms or conditions of the alleged loan and whether there had been repayment and, if there had been repayment whether it was made by check or cash; however, the record revealed that during his deposition he testified that the loan was repaid in cash and that he deposited the cash but he did not recall where he deposited the $25,000.
The record also revealed numerous checks written from plaintiff's business account to individuals with memo lines of "gift" or "mazol tov" on a monthly basis. These "gift" checks totaled $8,066.05 in 2015 and including checks of $999.99 (11/30/14); $333.33 (1/10/15); $555.55 (2/16/15); $111.11 (3/14/15); $333.33 (3/22/15); $555.55 (4/19/15); $250.00 (4/2/15); $222.22 (5/04/15); $222.22 (5/10/15); $100.00 (5/04/15); $555.55 (6/06/15); $555.55 (8/11/15); $455.00 (7/24/15); $111.11 (9/08/15); $111.11 (10/19/15); $150.00 (11/08/15); $1,111.11 (11/17/15); $999.99 (11/30/15); $111.11 (12/14/15); $222.22 (12/27/15). When questioned about these checks on cross-examination plaintiff testified that they were "gifts".
On cross-examination the plaintiff conceded that he purchased a 2016 Lexus automobile for $40,000 in August 2016 despite having made no direct or indirect support payments to the defendant in compliance with the Court's April 2016 pendente lite support order.
Plaintiff's Affidavit of Net Worth
Plaintiff's affidavit of net worth dated April 25, 2017 listed the following monthly expenses (total: $24,433 monthly): rent, $2,100; real estate taxes, $1,600; fuel/oil, $100; electricity, $50; telephone, $70; internet, $30; cell phone, $70; groceries, $500; dining out, $500; clothing (husband), $500; laundry, $100; dry cleaning, $100; automotive insurance, $2,500; [*9]medical insurance for child, $1,000; household repairs, $200; sanitation, $100; automotive (gas, repairs, car wash, registration, parking), $640; vacations, $833; movies, $100; cable television, $40; health club, $50; birthday parties, $50; federal income taxes, $3,258; state income taxes, $868; city income taxes, $466; social security and medicare, $774; barber, $200; beauty aids, $300; gifts, $833; charitable contributions, $2,500; religious organization dues, $417; commutation, $167; unreimbursed business expenses, $417; "other major expenses", $3,000.
Plaintiff testified on cross-examination that his income reported on his 2016 income tax return was approximately $100,000 less than his annual expenses (detailed as $293,196 in his affidavit of net worth) and that he paid the difference using funds from his business account.
Plaintiff testified on cross-examination that his lifestyle has not changed because of the decrease in income from $406,000 in 2015 to $189,000 in 2016 other than that his housing expense decreased because he is living with his mother. The Court notes that the value of this housing situation could potentially be imputed as income to the plaintiff.
Defendant's Affidavit of Net Worth
Defendant's affidavit of net worth dated September 6, 2017 listed the following monthly expenses (total: $14,826.30 estimated monthly): $2,500, rent; $50, land-line telephone; $75, cellular telephone; $50 cable; $50 internet; $300, automobile (gas, car wash, parking/tolls); $1,500, nursery/pre-k; $150, continuing education; $100, religious instruction; $200, school transportation; $100, school supplies; $100, school lunches; $100, field trips; $1,185, extracurricular activities; $800, groceries; $600, dining-out/take-out; $500, clothing (defendant); $500, clothing (child); $100, dry cleaning; $135, automotive insurance; $1,600, health insurance; $200, dental insurance; $200, optical insurance; $333, vacations; $150, movies; $100, recreation clubs; $50, swimming (defendant); $100, health club; $416.65, summer camp; $416.65, birthday party (child); $100, books; $100, gifts for others; $100, charitable contributions; $200, religious dues; $400, union dues; $400, unreimbursed pharmaceutical; $200, household cleaning supplies/laundry; $600, housekeeper; $600, babysitter; $565, loan payments.
Defendant testified that the expenses listed in her affidavit of net worth dated September 6, 2017 "was done at the beginning of when we first started the case and it was an estimate of what it would cost to live with a child." She testified that some expenses, like the entry for a housekeeper were based on expenses she had when she "was living with the plaintiff" and was "an estimate of how much it would cost." She testified on cross-examination that her current actual expenses are "[a]round $5,000 or $6,000" monthly."
Plaintiff testified that his spousal support obligation is $3,000 and that he has paid approximately $78,000 total in spousal support since the commencement of the divorce action and that he pays $2,000 monthly for child support.
On cross-examination, when questioned whether defendant's counsel filed two (2) contempt motions seeking enforcement of pendente lite support payments by plaintiff, the plaintiff testified, after being admonished by the Court that if he continued not to answer questions posed to him that he could be precluded from further testimony and the drawing of a negative inference, that he "maybe" recalled the contempt motions. During cross-examination on December 6, 2017, when questioned why he did not provide his December 2017 pendente lite support payment to defendant until that day, when it was due on the 1st of the month, plaintiff testified "I don't know."
[*10]Jewelry
On cross-examination, plaintiff conceded that in March 2014 he purchased $35,000 in jewelry (including diamond earrings, diamond necklace, diamond bracelet and a diamond ring), a $5,000 kalym (a cash gift) for the defendant prior to their religious marriage. Defendant testified that the parties had a "week's ceremony" that plaintiff paid "maybe $2,000 to $3,000 a day." She also testified that plaintiff purchased a $3,500 wig for her wedding ceremony. On cross-examination plaintiff testified that he did not recall whether he made those purchases using cash or checks; however, on redirect he testified that he paid cash withdrawn from his checking account for the jewelry. Plaintiff testified that he purchased a $6,000 pair of silver candlesticks for the defendant in May or June of 2014 after the marriage using cash given to the parties as a wedding gift from plaintiff's mother. Defendant testified on cross-examination that she did not have the jewelry in her possession and she did not know what had happened to it after she was locked out of the marital residence. She testified that she still has possession of the silver candle sticks.
Domestic Violence
Plaintiff testified that he first learned that defendant was not working as a physician's assistant a few weeks before the wedding when she told him that she had not yet passed the physician's assistant exam. He testified that he did not learn that she had taken and failed the physician's assistant exam three (3) times until after the wedding when she found out that she had not passed the exam again on her fourth (4) attempt.
Defendant testified that plaintiff laughed at her when she found out she did not pass the exam on her fourth attempt. Defendant testified on redirect that immediately before she took the exam the fourth time the plaintiff beat her "because I wouldn't go to his mother's for Shabbat..." She testified that "there were many times that he beat me" during the marriage. She testified that the "first time" plaintiff beat her was in April or May of 2014 "because I found a picture of a naked girl that he was having an affair with, and I deleted it because I was upset that we got married and he has a naked girl in his phone." She testified that as a result "he hit me on the head with his phone, and decided to beat me, and put me in the hospital for that." She also testified that the "same year May, June, he was physically violent with me, dragging me by my hair, and punching me against the wall, slamming my head against the apartment door, where, at that point, I was screaming for help and the neighbor called the police." Defendant testified that her address is currently confidential pursuant to an Order dated March 31, 2016. That order continues.
Plaintiff testified that he helped the defendant study for the exam after the parties were married and that she took the exam a fifth (5) time in December 2014 and successfully passed the exam. Defendant testified that she had difficulty passing the exam initially because, at that time before the parties were married, she "invested more of my time providing for my [parents] than for studying." She testified that after the parties married she also studied for the exam but that she was also working in the plaintiff's private medical practice and "cooking, cleaning, anything that his family needed...." She testified that she "had to be available for every single part of his family. I had to be available for his beck and call. I had to help him in his office. I had to do exactly what he wanted me to do." On cross-examination she testified that the plaintiff did not help her study for the exam because "he was working."
Defendant testified that a few months before the marriage the plaintiff "made me sign" a piece of paper that she "would be doing everything and anything that he says, that he would be the sole person to control everything." She testified that plaintiff asked her to "puncture my finger and to stamp [the paper] with the blood" so that the document would be "sealed with blood." She testified that she signed that paper at the plaintiff's demand and that "at every point he would always bring the paper to me and say, do you remember? You signed this. You have to do what I tell you to do." She also testified that in January 2015 when she was pregnant "he was insisting that I sign the paper with, basically declaration that I would do everything that he wants me to do. He had [sic] even had my parents involved to force me to sign it." She testified that in March 2015 she was having "a lot of issues with my parents. They didn't want me to sign [the paper] because they feel [sic] like I shouldn't be controlled" but that she "wanted to sign it because I wanted to save my marriage." She testified that she "wanted to do something where he would appreciate the respect that I had for him and that I wanted this family so bad, so I took the candle, and I wanted to embed them — — embedded them — — engrave them with our marriage, and by the time I came back he changed the locks and he kicked me out of the house." She testified that "I basically left the home with just the candles to get it engraved, having the hopes to come back into my home. I didn't know I was going to be locked out." On cross-examination defendant testified that the plaintiff's family "had nothing to doing [sic] with me during my pregnancy. They didn't care to even call. They put me out on the street. I did the best thing that could [sic] possibly can [sic], even after going back to his mother's the day when he kicked me out, she didn't let me in."
She testified that she only regained entry to the home with the assistance of the police but "there was nothing left in the house. I only had like a bunch of garbage bags with stuff in there that was already damaged." She testified that she was pregnant and did not have a place to go and that when she obtained a new residence she also obtained an order to keep the address confidential.[FN4]
Defendant testified that a few months after the parties married she was hospitalized and, as a result, medical records were made. She testified that after plaintiff commenced this divorce action he used his position as a medical doctor to obtain photographs of those medical records without her permission and had shown photographs of her medical records to "members of the community" and, as a result, people from the community had spoken to her about medical records. She also testified that when she appeared at the beth din (a religious court) for the plaintiff to grant her a get the plaintiff himself showed the pictures of the medical records to the counsel in front of her.
On cross-examination, when questioned whether he had shown pictures of defendant's medical records to anyone in the last month from his telephone plaintiff testified that he could not recall.
Religious Education
Plaintiff testified on cross-examination that he is religiously observant: he attends synagogue on Sabbath and that the parties kept a kosher home during the marriage. Defendant testified that she continues to be observant and keep a kosher home.
Plaintiff testified that he believes in Jewish education "if it is being given by the parents because the parents are the ones who gave the Jewish education. I was raised in a country [sic] of communist country and I did not attend the yeshiva, yet my parents were the ones who brought me to the religious way." The record established that the parties maintained a kosher home during the marriage and that the parties are both religiously observant. Defendant takes the position that the child should attend a yeshiva for religious education. Plaintiff does not share in that belief.
Business Expenses
Plaintiff testified on cross-examination that he paid the operating expenses of his private medical practice from a credit card and checks written from the business operating account. He testified on cross-examination that he had no business expenses for office staff because he did not employ secretaries or other office staff except that he employed "secretaries that are paid in cash that were working once or occasionally" including a "cousin" who worked from "2010 up until 2014". On cross-examination, when asked if he paid this cousin in cash the plaintiff invoked his Fifth Amendment right against self-incrimination and asserted his Fifth Amendment right also to questions related to how many employees he paid in cash and whether he takes out taxes and Social Security from his employees payments. Plaintiff also invoked his Fifth Amendment right against self-incrimination when questioned about his deposition testimony that he had "multiple secretaries".Plaintiff testified on cross-examination that personal expenses were paid from the business account and his personal bank account records, entered into evidence, show that his private medical practice income collected using "Square" was deposited directly to his personal bank account and not into his business bank account. He testified on cross-examination that he paid both personal and business expenses using the business credit card and that all of the charges on that business credit card were paid using "one electronic transaction from the business account" without reconciling what portion of the credit card balance was for personal expenses and how much was for business expenses.
Plaintiff maintained at trial that he pays his monthly expenses of approximately $24,000 using his credit cards and then he uses checks from his business accounts to pay the credit card balances; however, credit card annual statements entered into evidence at trial without objection listed the following: charges of $23,145.73 in 2014 and $14,365.87 in 2015 for the LL Bean credit card and charges of $1,340 in 2014 and $6,911.20 in 2015 for the American Express. The record established that plaintiff's credit card purchases for 2015 were approximately $22,000, which is less than just one (1) month of plaintiff's claimed $24,000 monthly expenses. The only check drawn on his business account that plaintiff identified as for vendor payment was one (1) for malpractice insurance. Plaintiff testified on cross examination that he did not pay any of his vendors in cash.
Charitable Donations
The charitable contributions listed on plaintiff's income tax returns are as follows: $33,756 in 2015; $37,702 in 2016; however, bank records entered into evidence and the plaintiff's own testimony on cross-examination revealed that in 2016, the year when his reported income decreased from $406,000 to $189,000, he made charitable contributions to "Brighter Jewish Future" (hereinafter referred to as BJF) in excess of $50,000 more, he testified on cross-[*11]examination, than he had donated in any prior year.
Defendant takes the position that plaintiff's charitable contributions are actually checks drawn for exchange for cash. Plaintiff denied at trial that he ever received cash back from any of his charitable contributions.
On cross-examination, plaintiff testified that he did not know how much of the $50,000 he gave to "BJF" in 2016 was for marketing and how much was a charitable donation; however, on redirect, plaintiff testified that in 2014, his payments to BJF were "approximately $18,000 was given in donation and $20,000 in advertisements"; "around $12,000 to $13,000 in 2015"; and "around $24,000 in donations and $26,000 in marketing" in 2016. He testified on redirect that he spent $26,000 on marketing in 2016 because he had lost his full-time employment at the hospital and were trying to reach "the community."
He testified that a man he knows from his religious community — Mr. D. D. — collects the charitable donation checks that he writes from his business account for BJF. Plaintiff testified that he does not know where the BJF is located and that he has never been to their facility.
QUESTION: Have you Googled their website, does it exist?ANSWER: No, I did not.QUESTION: So, a guy shows up at your office, tells you he is collecting for something called the BJF, and in a year when your income goes down from $405,000 to $189,000 you give $50,000, that's about 30 percent of your income?ANSWER: Correct.Plaintiff testified that he selected that charity because "they were helping to arrange the engagement party, so to say, on the defendant's account, and they do it for the multiple people who are coming from former Soviet Union, helping those people, as well." Plaintiff testified that he made annual charitable donations because he is a charitable person and testified that he never received cash back from any charitable donations he gave. The record revealed that plaintiff often gave $2,000 biweekly to Bright Jewish Future. In addition to his frequent donations to BJF, the record revealed that plaintiff also made frequent donations of $2,000 to a yeshiva (a religious school).
"Get"
Plaintiff testified on September 11, 2017 that he had removed all barrier to defendant's remarriage. He also testified during cross-examination on September 18, 2017 that he would give the defendant a get the following morning but did not. Again during the proceedings on December 12, 2017 and December 13, 2017 plaintiff represented that he would provide a "get" to the defendant. The Court directed on the record on December 12, 2017 that counsel for the parties notify the Court by joint correspondence that the barriers to remarriage have been removed no later than the following Wednesday. The Court did not receive that joint notification from counsel and, at this time, there is no record before the Court that the plaintiff has provided a voluntary and unconditional "get" to defendant.
Plaintiff testified that he had made "[m]ultiple attempts" to provide a get to the defendant but that she "refused to take the Get..." unless he gave it to her voluntarily. Plaintiff testified that until he provided defendant with a get she is unable to remarry. Defendant testified on December 12, 2017 that plaintiff had not yet given her a get. She testified that when she and the [*12]plaintiff appeared at the beth din the plaintiff offered to grant her a get if she agreed to waive any claims for financial support for herself and the parties' child and that when she did not accept the plaintiff's conditions he refused to grant her a get. Defendant testified that she is an observant Jewish woman and that she cannot remarry if she does not receive a Get from the plaintiff and that it will negatively impact her if she cannot remarry "and possibly having help with my child."
The Law
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 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's testimony related to his income, his charitable contributions and particularly his claims that he did not keep many basic bookkeeping or financial records, were beyond the pale of any sense of credibility or honesty. Plaintiff casually testified that he commingles all of his business and personal finances, claimed to have no knowledge of how much of his considerable monthly "donations" are allocated between marketing for his business and charitable contributions. Plaintiff's testimony often lacked credibility or was not forthcoming including his claims that he does not need bookkeeping for his private medical practice.
Plaintiff's reported income in 2016 was $189,568 but his testified that he "has been no" change to his lifestyle, which his affidavit of net worth includes more than $288,000 in annual expenses, made charitable contributions in excess of $50,000 and purchased a Lexus automobile for approximately $40,000 without incurring any debt and only decreasing his available cash balances by approximately $7,220.00 [FN5] . Plaintiff offered no explanation for how this was [*13]financially possible.
The balance of plaintiff's personal bank account (Apple xx24) was $290,908.18 as of March 31, 2014 and $471,048.11 as of December 31, 2015.
The balance of plaintiff's business bank account (Apple xx49) was $97,455.91 as of March 31, 2014 and $260,419.86 as of December 31, 2015.
Plaintiff did not offer credible testimony as to how he met his reported expenses of approximately $288,000 as detailed in his affidavit of net worth dated April 25, 2017 on his reported 2016 income of approximately $189,000, which is approximately $99,000 less than his reported annual expenses, while also giving in excess of $50,000 in charitable contributions and purchasing a Lexus automobile for approximately $40,000.
The plaintiff asserted his Fifth Amendment right against self-incrimination regarding whether he paid clerical support staff for his private medical practice in cash for which the Court draws a negative inference.
The Court does not credit the plaintiff's contention that but for his efforts the defendant would not have passed her exam and become a physician's assistant during the marriage. The Court finds the plaintiff, who is a medical doctor, maintained a cavalier attitude regarding the judicial process — a process that he initiated — throughout the litigation. This continuing disdain for the integrity of the judicial process is shocking to the Court.
The Court finds that defendant testified credibly and compellingly regarding the allegations of domestic violence and overt power imbalance imposed upon her by the plaintiff. Plaintiff's acts of violence, degradation and humiliation are of great concern. The vulnerable position the defendant was left in when the plaintiff summarily locked her out of the marital apartment and cleaned out the marital possessions is disturbing to say the least. The Court also finds defendant's testimony regarding the plaintiff's private medical practice and his financial earnings credible based upon her first-hand knowledge. The Court found that the defendant generally offered forthright and candid testimony.
Plaintiff is and has been the monied spouse and the record at trial established that he has abused his greater economic strength to attempt to impose his will on the defendant or to punish her for what he believed was her non-compliance with his wishes during the marriage.
Throughout this litigation the plaintiff continued to enjoy his pre-commencement lifestyle — including purchasing a luxury automobile and making multiple generous charitable donations each month while simultaneously refusing to timely comply with financial support orders of pendente lite maintenance and child support which resulted in defendant having to file multiple enforcement applications. Plaintiff has been able to exhort this financial control because he controls the flow of income while defendant struggles to find employment while being the sole child care provider to the parties' infant child based upon the plaintiff's voluntary refusal to have any contact with the child who was born after plaintiff filed for divorce.
Under the facts and circumstances presented here the Court wholly rejects plaintiff's position at trial that he should not be required to pay child care expenses for the parties' infant child because the defendant is not working full-time and that he should not be required to pay spousal support to defendant because she is not working full-time. The defendant testified credibly that she has been and continues to be seeking full-time employment. She has done this despite plaintiff's categorical refusal to pay any money towards child care expenses. Plaintiff attempt to excuse his complete refusal to pay any child care expenses for the parties' infant child because he believed the full-time child care selected by the defendant was "unreasonable" is unavailing. If plaintiff had paid the child care expense as required by Court order during this litigation it would have bolstered his argument that the defendant should be employed but his refusal to do so — together with his consistent failure to make timely basic maintenance and child support payments to defendant forced her into a financially precarious situation making it, effectively, nearly logistically impossible for her to accept any employment when she was unable financially — due to the plaintiff's voluntary refusal to have any contact with the infant child and his unilateral decision not to comply with Court ordered child care payments — to ensure that child care would be in place so she could commit to employment. Defendant's testimony related to this issue are credible, especially given the nature of her employment. Effectively, plaintiff took that position that he would have no role in providing child care himself, that he would contribute no financial support to allow the defendant to obtain child care and yet continues to insist that the defendant should be employed full-time.
It is clear from his action that despite commencing this litigation the plaintiff did not take this proceeding seriously. He sought judicial intervention but then often did not comply with Court orders if they did not comport with his opinion about how the case should progress. The Court notes that plaintiff's lackadaisical approach during this litigation resulted in delays whether by choosing not to pay the maintenance and child support obligation to the plaintiff for months at a time where there was certainly no financial basis for the delays forcing defendant's counsel to file enforcement applications or by participating sarcastically in his deposition with statements about having money in banks on other planets and then subsequently attempting to explain away his deposition answers as "jokes." None of these tactics facilitated a resolution of this litigation. When considered against plaintiff's pattern of non-compliance with Court orders during this litigation and his approach to basic discovery mechanisms like the deposition, the Court does not find after trial that defendant's changing legal representation during this litigation was the main or substantial cause for any delay in this litigation.
Discussion
Fifth Amendment: Adverse Inference
Article 1 §6 of the New York State Constitution states that, "No person...shall...be compelled in any criminal case to be a witness against himself or herself..." This language is substantially identical to that of the Fifth Amendment of the United States Constitution, "No person...shall be compelled in any criminal case to be a witness against himself" (US Const amend. V, full text). A party to a civil suit may also take advantage of the Fifth Amendment, "...since the test is whether the testimony might later subject the witness to criminal prosecution, the privilege is available to a witness in a civil proceeding, as well as to a defendant in a criminal prosecution" (Lefkowitz v Cunningham, 431 US 801, 805 [1977]; however in the context of a [*14]civil action, a witness' Fifth Amendment privilege is more constrained:
Unlike his counterpart in a criminal prosecution, the defendant in a civil suit has no inherent right to remain silent or, once on the stand, to answer only those inquiries which will have no adverse effect on his case. Rather, he must, if called as a witness, respond to virtually all questions aimed at eliciting information he may possess relevant to the issues, even though his testimony on such matters might further the plaintiff's case. (McDermott v Manhattan Eye, Ear and Throat Hosp., 15 NY2d 20, 28 [1964].)Furthermore, a party who invokes the Fifth Amendment privilege in a civil action may be subject to an adverse inference: In New York, unlike the rule in a criminal case, a party's invocation of the privilege against self-incrimination in a civil case may be considered by the finder of the facts in assessing the strength of the evidence offered by the opposing party on the issue which the witness was in a position to controvert (citation omitted) (Kuriansky v Bed-Stuy Health Care Corp., 135 AD2d 160, 178-79 [2d Dept 1988] affd, 73 NY2d 875 [1988]).
It is well-established that when a witness invokes the Fifth Amendment in a civil action the Court may draw an adverse inference against that party (see El-Dehdan v El-Dehdan, 114 AD3d 4 [2d Dept.,2013] (holding that in a matrimonial action the Supreme Court was correct to draw an adverse inference against the defendant in a contempt hearing where the defendant invoked his Fifth Amendment privilege).
The New York Court of Appeals has held that drawing the adverse inference against a party based on invocation of the Fifth Amendment privilege is "...akin to that arising when a party fails or refuses to produce a material witness who is within his control..." (Marine Midland Bank v John E. Russo Produce Co., Inc., 50 NY2d 31, 42, 427 NYS2d 961 [1980]).
Here, plaintiff invoked his Fifth Amendment right against self-incrimination to questions about cash income derived from his private medical practice, whether he employed staff at his private medical practice and whether he paid those employees in cash. The Court will draw the adverse inference against plaintiff on those issues.
Equitable Distribution
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 (see Bloom v. Teryk-Bloom, 104 AD3d 632, 960 NYS2d 472 [2 Dept., 2013]; see also 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]).
Separate Property vs. Marital Property
Domestic Relations Law § 236 (B) (1) (c) defines marital property as follows:
The term 'marital property' shall mean all the property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action regardless of the form in which title is held . . . . Marital property shall not include separate property as hereinafter defined."Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property" (Hymowitz v. Hymowitz, 119 AD3d 736, 739, 991 NYS2d 57 [2 Dept.,2014]; see Domestic Relations Law § 236; see Fields v. Fields, 15 NY3d 158 (2010); see also Judson v. Judson, 255 AD2d 656, 657, 679 N.Y.S.2d 465; see Steinberg v. Steinberg, 59 AD3d 702, 704, 874 N.Y.S.2d 230; D'Angelo v. D'Angelo, 14 AD3d 476, 477, 788 N.Y.S.2d 154; Farag v. Farag, 4 AD3d 502, 503, 772 N.Y.S.2d 368).
Separate property includes, amongst other things, property acquired before the marriage or property obtained by bequest, devise, descent or gift from a party other than the spouse (see Domestic Relations Law 236 [B] [1] [d] [1]); see also Price v. Price, 69 NY2d 8 [1986]).
Separate property is also "property acquired in exchange for or the increase in value of separate property" (Domestic Relations Law 236 [B] [1] [d] [3]; see also Rossi v Rossi, 137 AD2d 590, 591 [1988] [finding that real property was separate property where such property was [*15]"purchased by the defendant in exchange for separate property acquired by him before the marriage"]; Adams v Adams, 129 AD2d 661, 662 [1987][automobile deemed separate property where it was purchased with insurance proceeds from car which was received as a gift and was therefore also separate property]; Pacifico v Pacifico, 101 AD2d 709, 710 [1984][business considered to be separate property where it had been acquired in exchange for another piece of separate property].
"In identifying nothing less than 'all property' acquired during the marriage as marital property [Domestic Relations Law § 236 (b) (1) (c)] evinces an unmistakable intent to provide each spouse with a fair share of things of value that each helped to create and expects to enjoy at a future date" (DeLuca v DeLuca, 97 NY2d 139, 144 [2001]). Given that the law favors the inclusion of property within the marital estate (see Burns v Burns, 84 NY2d 369, 374 [1994]; Majauskas v Majauskas, 61 NY2d 481, 489 [1984], "the party seeking to establish that a particular item is indeed separate property bears the burden of proof" (see LeRoy v LeRoy, 274 AD2d 362, 362 [2000][internal quotation marks and citation omitted]; Heine v Heine, 176 AD2d 77, 83 [1992], lv denied 80 NY2d 753 [1992]).
Moreover, a party's inability to trace the source of funds claimed to be separate (see Nasca v Nasca, 302 AD2d 906, 907 [2003]; Boardman v Boardman, 300 AD2d 1110, 1110 [2002]; Corasanti v Corasanti, 296 AD2d 831, 832 [2002]; Haas v Haas, 265 AD2d 887, 888 [1999]; Galachiuk v Galachiuk, 262 AD2d 1026, 1027 [1999]; Matwijczuk v Matwijczuk, 261 AD2d 784, 785 [1999]; Pullman v Pullman, 176 AD2d 113, 114 [1991], lv dismissed 84 NY2d 850 [1994]; Verrilli v Verrilli, 172 AD2d 990, 992 [1991], lv denied 78 NY2d 863 [1991]; Foppiano v Foppiano, 166 Ad2d 550, 551 [1990]; Lischynsky v Lischynsky, 120 AD2d 824, 826 [1986]) or the existence of evidence that the allegedly separate property was ultimately commingled with marital property (see Geisel v Geisel, 241 AD2d 442, 443 [1997]; Cerretani v Cerretani, 221 AD2d 814, 816 [1995]; Dunn v Dunn, 224 AD2d 888, 890 [1996]; Glazer v Glazer, 190 AD2d 951, 953 [1993]; Carney v Carney, 202 AD2d 907, 908 [1994]), will serve to defeat a party's separate property claim.
Jewelry: Gift in Contemplation of Marriage
It is well-established in the State of New York that any gifts, including gifts of jewelry, exchanged between spouses during marriage are considered marital property and are subject to equitable distribution (Foppiano v. Foppiano, 166 AD2d 550, 560 N.Y.S.2d 831 [2 Dept., 1990], citing DRL §§ 236B[1][c], [d][1]). The same is not true for gifts given in contemplation of marriage, such as an engagement ring, between two unmarried persons. For purposes of distribution of marital property upon divorce, an engagement ring given by a party to another is a gift in contemplation of marriage which becomes the recipient's separate property once the parties are married (McKinney's DRL § 236; NY Dom. Rel. § 236; Epstein v. Epstein, 289 AD2d 78, 734 N.Y.S.2d 144 [1 Dept., 2001], [holding that an engagement ring given by the husband to the wife was a gift and is therefore her separate property]; see also Nasca v Nasca, 302 AD2d 906, 754 NYS2d 502 [4 Dept.,2003][holding that an engagement ring returned by the plaintiff to the defendant because it held sentimental value as it had previously belonged to his mother was plaintiff's separate property and she was entitled to a credit against equitable distribution for the full (100%) value of the ring]).
On cross-examination, plaintiff conceded that in March 2014, prior to the marriage, he [*16]purchased $35,000 in jewelry (including diamond earrings, diamond necklace, diamond bracelet and a diamond ring) for the defendant and that he gave defendant a $5,000 kalym (a cash gift). Defendant testified credibly that the plaintiff purchased a $3,500 wig for her wedding ceremony prior to the marriage. Plaintiff did not dispute the defendant's testimony regarding the purchase date or value of the wig.
Defendant testified on cross-examination that she did not have the jewelry in her possession and she did not know what had happened to it after she was locked out of the marital residence. Plaintiff testified that he sold the property that was in the marital residence after he changed the locks and refused to allow the defendant back into the marital residence. Plaintiff testified that he did not provide any of the proceeds of the sale of the marital property from the marital residence to the defendant. Inasmuch as both parties conceded that the jewelry and the wig were gifts in contemplation of marriage they became defendant's separate property after the parties married on March 27, 2014. Plaintiff's own testimony established that the jewelry and wig were gifts to the defendant prior to the marriage and therefore her separate property and the plaintiff did not dispute the values offered by defendant. Defendant is entitled to a full (100%) credit against equitable distribution for the jewelry ($35,000) and the wig ($3,500): $38,500.
It is undisputed that the $6,000 pair of silver candlesticks were purchased in May or June of 2014 after the marriage. Property acquired during the marriage are presumed to be marital. Neither party offered testimony or documentation in support of a claim of separate property. As such, the presumption is that the silver candle sticks, acquired during the marriage, are marital asset subject to equitable distribution. Defendant testified that she has possession of the silver candle sticks. Plaintiff is entitled to a credit for $3,000 representing half (50%) of the value of the silver candlesticks.
Plaintiff testified that he sold all of the marital furnishing in the marital residence after he locked out the defendant and that he did not share the proceeds from those sales with the defendant; however, the defendant offered no testimony or documentation regarding the alleged value of the marital furnishings and as such her request for equitable distribution of the value of the marital furnishings is denied based upon a failure of proof (see Massimi v Massimi, 35 AD3d 400, 825 NYS2d 262 [2 Dept.,2006]).
Plaintiff testified that he owns two (2) properties outside New York City. He testified that he acquired them prior to the marriage and defendant did not offer any testimony or documentation to dispute that claim nor did she offer any testimony or documentation related to any appreciation claim to those properties. Additionally, while defendant contends that plaintiff may be collecting rental income from these properties she offered no legal basis for awarding her equitable distribution of that alleged rental income. As such, defendant failed to meet her burden of proof that the properties — or any appreciation — are marital assets subject to equitable distribution (see generally Embury v. Embury, 49 AD3d 802, 854 NYS2d 502 [2 Dept.,2008]).
Similarly, defendant failed to meet her burden of proof relating to any claimed appreciation to the plaintiff's private medical practice which, it was conceded on the record, was his separate property prior to the marriage. Defendant offered no testimony or documentation into evidence regarding any alleged appreciation in value of plaintiff's business (id.). Defendant also did not offer any testimony or documentation into evidence regarding the value of plaintiff's "KIKIYA" which plaintiff maintained was his intellectual property.
[*17]Commingling: Separate Property to Marital Property
It is well-established that separate property that is commingled with marital property loses its separate character and a presumption arises that each party is entitled to a share of the funds (see Fields v Fields, 15 NY3d 158, 905 NYS2d 783 [2010]; see also Golden v. Golden, 98 AD3d at 649—650, 949 N.Y.S.2d 753; Geisel v. Geisel, 241 AD2d 442, 443, 659 N.Y.S.2d 511; Crescimanno v Crescimanno, 33 AD3d 649, 822 NYS2d 310 [2 Dept.,2006]). Despite this presumption, "[t]he titled spouse may seek to rebut that presumption that any commingled funds became marital property by tracing the source of the funds with sufficient particularity" (Overton v. Overton, 118 AD3d 858, 988 NYS2d 239 [2 Dept.,2014]; see also DeGroat v. DeGroat, 84 AD3d 1012, 924 NYS2d 425 [2 Dept.,2011]; Masella v. Masella, 67 AD3d 749, 750, 889 N.Y.S.2d 80; Massimi v. Massimi, 35 AD3d 400, 402, 825 N.Y.S.2d 262).
In Overton v. Overton, the Appellate Division, Second Department held that the party had met her prima facie burden where she established that the balance in her bank account was her separate property by providing documentation that she received that total amount in the form of gifts and inheritances, which are considered separate property (see Domestic Relations Law § 236[B][1][d][1]).
Commingling can also take place where marital income is added to a financial account that initially held only separate property at the date of marriage. In Goldman v. Goldman, the Appellate Division, Second Department held that "while the account at its inception held the defendant's separate property in the form of a check for disability benefits in the amount of $400,000, over the years, that property was commingled with marital assets in the account and, therefore, lost its separate character" (131 AD3d 1107, 1108, 17 NYS3d 166 [2Dept.,2015]; see also Renck v Renck, 131 AD3d 1146, 17 NYS3d 431 [2 Dept.,2015](holding that parties' separate property from an inheritance lost its separate property character once it was commingled with marital assets in a financial account); Litvak v Litvak, 63 AD3d 691, 880 NYS2d 690 [2 Dept.,2009](holding that $193,000 inherited by party from grandparent constituted marital property inasmuch as the party co-mingled it with marital assets).
Plaintiff's Bank Accounts
Here, while it is undisputed that the only bank accounts used by the parties during the marriage were plaintiff's and held money that was plaintiff's separate property when the parties were married the Court finds that under the unique facts and circumstances here there was a complete commingling of the cash balances of these accounts and that plaintiff engaged in purposeful efforts to manipulate his finances in an effort to foreclose defendant from being able to obtain an equitable distribution award. In addition to the complete commingling that took place in this case, the plaintiff engaged in extensive manipulation of his income both during the marriage and after commencing this litigation and he made continuous efforts to obfuscate his financial status during this litigation. Plaintiff, attempting to shield the true nature of his income and to limit the assets available to the defendant by continuing to spend funds from these bank accounts in his name after commencing this litigation without making any efforts to obtain employment with fully reportable income commensurate with the reportable income that he had during the marriage.
The Court notes that the case law is clear that it is the burden of the party seeking to have an asset declared separate property to trace and to prove the claim. Here, at every turn, the [*18]plaintiff engaged in efforts to obfuscate the record as to financial information in this case. Clearly, plaintiff's attempts were intended to impede defendant's rights to equitable distribution which he believes she is not entitled to; however, the impact of plaintiff's utter lack of candor with the Court regarding financials resulted in the plaintiff failing to meet his burden at proving what funds in the bank accounts, if any, were separate property. The Court found plaintiff wholly incredible regarding his income, including cash income, and plaintiff himself testified that he maintained no differentiation or separation between his personal and business accounts freely depositing to both and paying from both as well as pocketing cash payments from patients. The end result of plaintiff's commingling of funds and lack of candor are that he failed to meet his burden of establishing what, if any, of the funds remaining in the accounts may have been separate property.
It appears, from the record before the Court, that after commencing this litigation, the plaintiff purposefully limited his reportable income which would be deposited into these accounts and, instead, used the deposited assets for ongoing expenses in an effort to decrease any availability of funds that may be subject to equitable distribution. As such, plaintiff created a situation, after commencing this litigation, where he was, in effect, "living off" the assets in an attempt to "starve out" the defendant. It is impossible for the Court, due to plaintiff's own recalcitrance in this litigation process to determine whether the funds plaintiff was using to fund his self-selected term of under-employment after commencing this action were separate property funds or marital property funds because all of the funds were deposited into the same account and commingled.
It is undisputed at trial that the parties never had a joint bank account during the marriage, the defendant did not have access to the plaintiff's personal bank account where he deposited his income earned during the marriage and during the marriage the defendant was not employed and did not have a separate bank account. The bank records entered into evidence at trial and the parties' testimony established that the plaintiff deposited his income during the marriage — a marital asset — into his personal bank account where he had separate property before the parties married.
Plaintiff's Personal Bank Account — Apple xx24
Similar to the facts in Goldman, at the date of marriage, the plaintiff's Apple xx24 account, which was held in his name alone, held his separate property; however, the parties did not establish a joint bank account, instead, plaintiff chose to deposit his income earned during the marriage — marital asset — into his bank account. As a result, he commingled his income earned during the marriage — marital property — with what had been his separate property before the marriage thereby commingling the assets. Here, unlike the facts in Overton, the plaintiff has not established that the total source of the money in the bank account held solely in his name was separate property. Here, plaintiff's separate property lost its separate character when he commingled it with marital assets and the case law is clear that he is not entitled to a separate property credit.
The date of marriage was March 27, 2014. As of the bank statement March 31, 2014, the balance of plaintiff's bank account Apple xx24 was $290,908.18. The date of commencement was December 23, 2015. As of December 31, 2015, the statement closest to the date of [*19]commencement, the balance of plaintiff's bank account Apple xx24 was $471,048.11. Plaintiff's personal bank account Apple xx24 increase in value at least $180,139.93 during the marriage from marital income; however, based on the facts and circumstances detailed herein-above, the Court finds that the funds were commingled and any separate property lost its separate property character. As such, the Court finds that the parties shall each receive half (50%) of the balance of the Apple xx24 bank account as of the date of commencement, to wit: $235,524.05 each ($471,048.11 x .5 = $235,524.05).
Plaintiff's Business Bank Account — Apple xx49
The record at trial, including bank records entered into evidence and the plaintiff's own testimony, established that the plaintiff maintained no separation of his business and personal expenses or bank accounts and that he used them interchangeably. The Court notes that plaintiff is self-employed. Plaintiff testified that he paid personal expenses through his business and bank records revealed that plaintiff deposited credit card payments made to his business using Square directly into his personal bank account. It is clear that plaintiff used his position as a sole owner of his business to conducted his finances loosely and that instead of maintaining a separation of business finances and personal finances he treated his business bank account as just another source of funds for his personal expenses and that the Apple xx49 account was a "business" account in name only and, in reality, served as just another bank account freely available for plaintiff's personal use where he could hold his income for his personal use without necessarily "paying" it to himself as income and having to report it on his income tax returns. Plaintiff failed to rebut the presumption that the funds in his Apple xx49 bank account, acquired during the marriage, are marital assets.
The date of marriage was March 27, 2014. As of the bank statement March 31, 2014, the balance of plaintiff's bank account Apple xx49 was $97,455.91. The date of commencement was December 23, 2015. As of December 31, 2015, the statement closest to the date of commencement, the balance of plaintiff's bank account Apple xx49 was $258,750.69. Plaintiff's bank account Apple xx49 increase in value at least $161.294.78 during the marriage from marital income; however, based on the facts and circumstances detailed herein-above, the Court finds that the funds were commingled and any separate property lost its separate property character. The Court finds that each party shall share equally (50/50%) in the date of commencement balance of the Apple xx49 account, it wit: $129,375.34 each ($258,750.69 x .5 = $129,375.34).
Total Equitable Distribution Award
Total Marital Assets Subject to Equitable Distribution$735,798.80
AssetPlaintiff (50%)Defendant (50%)
Apple xx49
$258,750.69$129,375.34$129,375.34
Apple xx24
$471,048.11$235,524.05$235,524.05
Silver Candlesticks
$6,000+ $3,000— $3,000
Household Furnishings$0$0
Total$367,899.39$361,899.39
Separate Property Credits
Jewelry— $38,500+ $38,500
Total Equitable Distribution Award$329,399.39$400,399.39
The award of equitable distribution shall be paid by plaintiff to the defendant within sixty (60) days. Plaintiff's failure to do so that result in defendant having the right to enter a money judgment for the sum due and owing, together with statutory costs and interest, upon ten (10) days written notice to plaintiff and without further need for judicial intervention or court permission.
Maintenance
This Court has fully considered the statutory factors in Domestic Relation Law 236(B)(6) the final maintenance statute that was effective for cases commenced before January 23, 2016 (see O'Brien v. O'Brien, — NYS3d — [2 Dept., 2018]). The amount and duration of final maintenance is committed to the sound discretion of the trial court, and each case is to be decided on its own unique facts (see Carr—Harris v. Carr—Harris, 98 AD3d 548, 551 [2 Dept.,2012]; Wortman v. Wortman, 11 AD3d 604, 606 [2 Dept.,2004]).
Every case of maintenance must be determined on its unique facts and the determination 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 duration of the marriage and the age and health of both parties;(3) the present and future earning capacity of both parties;(4) the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor;(5) 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;(6) the presence of children of the marriage in the respective homes of the parties;(7) the tax consequences to each party;(8) 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;(9) the wasteful dissipation of marital property by either spouse;(10) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; and(11) 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 own unique facts'" (DiBlasi v. DiBlasi, 48 AD3d 403, 404, 852 N.Y.S.2d 195, quoting Wortman v. Wortman, 11 AD3d 604, 606, 783 N.Y.S.2d 631). Maintenance is designed to give the spouse economic independence and should continue only as long as is required to render the recipient self-supporting (see Schenfeld v. Schenfeld, 289 AD2d 219, 734 N.Y.S.2d 465; see also Palestra v. Palestra, 300 AD2d 288, 289, 751 N.Y.S.2d 509). In determining the appropriate amount and duration of maintenance, the Court is required to consider, among other factors, the standard of [*20]living of the parties during the marriage and the present and future earning capacity of both parties (see Domestic Relations Law § 236[B][6][a]); see also DiBlasi v. DiBlasi, 48 AD3d at 404, 852 N.Y.S.2d 195]; see also Charap v. Willett, 84 AD3d 1000, 924 N.Y.S.2d 433 [2 Dept., 2011]).
Pursuant to the case law 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] ).
This Court finds that under the facts and circumstances presented here, including the plaintiff's complete lack of candor with the Court and his incredible and inconsistent testimony regarding his financial situation and income and, having drawn an adverse inference against the plaintiff based upon his invoking the Fifth Amendment regarding his cash income, that it is appropriate to impute income to the plaintiff. The Court is mindful that the plaintiff is, at this time, largely self-employed and has the ability to manipulate his income. There are many open questions regarding the plaintiff's income but it is clear to the Court that plaintiff's income is vastly higher than what he has reported on his income tax returns. It is also clear that plaintiff has obfuscated his finances so as to make a factual determination difficult. In fact, plaintiff testified on cross-examination that he did not believe he needed to keep track of how much money he earned. Here, the plaintiff's total lack of candor regarding his income and his purposeful efforts to obscure his financial situation to such an extent — even at one point claiming to have money in banks on other planets, which he later claimed was a "joke" — that the Court is left with no alternative but to impute income to the plaintiff. The Court categorically finds plaintiff's testimony regarding his access to cash income incredible particularly given his invoking the Fifth Amendment right against self-incrimination on questions related to cash. As such, he has enjoyed the tax-free benefit of certain sums of income.
Additionally, the plaintiff has by his own testimony made no efforts to obtain employment commensurate with the income he earned during 2015 when the parties were married, which according to his income tax return was in excess of $406,000 and has chosen, without explanation, to reduce his income during this litigation to less than $190,000 in reported income. The Court finds that based upon "honest efforts" the plaintiff's income would be at least [*21]$406,000, as it was during 2015 when the parties were married and before plaintiff commenced this action and thereafter reduced his income by almost half (50%). In making this finding the Court notes that in only imputing the plaintiff's reported income in 2015 the Court has not imputed the additional cash that plaintiff was, by his own admission during trial, "pocketing".
The Court finds that plaintiff purposefully redirected the income from "traceable" sources, for example, hospitals, so he could rely on his cash income. While plaintiff may have lost his job at Interfaith his claims of lack of income or ability to obtain traceable income lack any credibility or merit. It is evident to the Court after trial that plaintiff has purposefully reduced his employment and has, by his own testimony, refused to seek employment with reportable income commensurate with his income before he commenced this litigation. Clearly, such litigation tactics cannot be rewarded. The Court further notes that plaintiff conceded at trial that he had previously during the marriage rented space in his medical office to other health care providers but did not provide financial discovery to defendant regarding how much rental income he received for those rentals.
In the case at bar, the parties were married for less than two (2) years prior to the commencement of this action and throughout the marriage, the plaintiff's income was the exclusive source of financial support for the family. The Court notes that the plaintiff has a lucrative career in medicine and that his future earning potential is greater than what the defendant can reasonably anticipate earning in the future even as a physician's assistant when she is able to work full-time at some time in the future.
The plaintiff has chosen to have no contact with the parties' infant child since the child was born. As such, the defendant is truly a single parent who is solely responsible to provide child care to the parties' child either herself or by hiring outside child care. Throughout this litigation the plaintiff's recalcitrant refusal to pay child care expenses as ordered by the Court directly undermined the defendant's ability to seek full-time employment. The defendant testified credibly that because she had no child care assistance from the plaintiff either by providing direct child care or by financially contributing to child care for the infant child, it has been impossible for her to find full-time employment as a physician's assistant. The fact that defendant continues to be substantially unemployed or only employed in a limited capacity is, quite simply, a situation created by the plaintiff.
The plaintiff tried to use his greater access to financial resources to control the defendant but in doing so he created an economic landscape where it was impossible for the defendant to provide all the child care for the parties' infant child and to seek and obtain full-time employment or even meaningful per diem employment. Even had the defendant been successful in her attempt to find full-time employment she would have been, most likely, unable to continue the employment where plaintiff refused to financially contribute to child care expenses so that defendant could work. Had the plaintiff not chosen litigation tactics focused more on controlling the defendant than on the practicalities of ensuring that she — the only parent providing child care for the parties' child — had reliable and consistent financial support — including child care expenses — the defendant may have been able to obtain and maintain full-time employment. The Court finds defendant's testimony that because of the unpredictability of the plaintiff's support payments and his refusal to pay child care expenses she has only been able to accept nominal per diem employment. Plaintiff's claims as to the costs of child care are not credible or realistic.
Any determination of maintenance in the instant matter must be made pursuant to Section 236 (d) (6) factors 1 through 11. In setting maintenance, the Court is cognizant of the history of parties as delineated herein. Under the facts and circumstances herein, including the parties' marital standard of living, their respective disparity in incomes, respective present and future earnings capacity, marital asserts, length of the marriage, age, physical and mental health, the tax consequences to each party and the time required for the husband to become self-sufficient, this Court finds that an award of post-divorce maintenance to the defendant is warranted even though this is a short-term marriage.
The Court notes that this award of maintenance is made notwithstanding the defendant's advanced degree. In Bains, the Appellate Division held that Supreme Court "providently exercised its discretion in awarding the plaintiff maintenance in the sum of $3,000 per month for a period of five years." Moreover, the court in Bains noted that "[s]pousal support should be awarded for a duration that would provide the recipient with enough time to become self-supporting" (id.; see also Schenfeld v Schenfeld, 289 AD2d 219 [2001]; Granade-Bastuck v Bastuck, 249 AD2d 444 [1998]). Similarly, in Comstock v. Comstock, (1 AD3d 307 [2003]), the Second Department affirmed an award of maintenance even though the movant had a Masters Degree in Education and Social Work and there was a substantial distributive award of cash.
The Court notes that plaintiff did not provide a vocational evaluation that could potentially assist the Court in determining what, if any, employment opportunities are available part-time for the defendant or what, if any, income should be imputed to the defendant for employment.
The record established that the defendant is a highly motivated individual who, despite the obstacles plaintiff has placed in her way, has tenaciously pursued her physician's assistant degree and taken the steps necessary to obtain her license despite, as her testimony credibly established at trial, the actions of the plaintiff. It is clear to the Court that the plaintiff's testimony during the trial was colored by his obvious disdain for the defendant. What possible litigation strategy — other than utter disdain — could explain the plaintiff's attempts at trial to discredit the defendant's intellect, her professional abilities or future career options? At trial, plaintiff attempted to paint a picture of the defendant's abilities as weak and that she was only able to succeed professionally because of his efforts and that left on her own she would, in essence, be unable to take care of herself. Certain, if the Court believed the theory put forth by the plaintiff regarding the defendant's employability it could only increase his maintenance obligation to her.
Inasmuch as this was a short-term marriage and, as such, there is limited "lifestyle" to consider, the Court has considered those expenses listed by the plaintiff, in part, in assessing the reasonableness of some of the expenses listed by the defendant. It appears that the expenses listed by the defendant are reasonable and, absent those expenses which include herself and the child, are in some cases, considerably lower than the cost listed by plaintiff for the same expense. It appears that the expenses, as delineated by the defendant are reasonable considering the lifestyle the parties enjoyed during the marriage.
Claimed Expense
Plaintiff
Defendant
rent
$2,100
$2,500 (includes child)
[*22]clothing
$500
$500
groceries
$500
$800 (includes child)
charitable contribution
$2,500
$100
religious dues
$417
$200
dining-out
$500.00
$600.00 (includes child)
gifts for others
$833
$100
automotive costs
$640
$300
movies
$100
$150
barber/beauty aids
$500
$0
housekeeper
$0
$600 [FN6]
automotive insurance
$2,500
$135
vacations
$833
$150
The Court has deducted the following expenses listed by the defendant inasmuch as these expenses are statutory add-ons and are dealt with herein-below. The Court notes that some of these expenses are estimates based on the child's anticipated future needs inasmuch as the child is two (2) years old at this time.
Expense
Cost
nursery/pre-k
$1,500
field trips
$100
extracurricular activities
$1,185
summer camp
$416.65
babysitter
$600.00
The Court also reduced the $400.00 monthly expense for "unreimbursed medical expenses" listed by the defendant based upon a lack of testimony or evidence at trial in support. The Court has deducted the $565.00 monthly expense for "loan payments" inasmuch as there [*23]was no testimony or evidence entered at trial related to this claimed expenses and, as such, there is no record before the Court to determine if this claimed expenses relates to a marital debt or to a pre-marital debt.
Considering all of the foregoing, and based upon the needs of the plaintiff and the resources of the plaintiff, the Court determines that an award of maintenance in the sum of $7,500.00 monthly from the plaintiff to the defendant is appropriate.[FN7]
Applying the above-detailed statutory considerations to the facts of this case, and in consideration of the amount and duration specifically requested by the defendant, this Court awards the defendant rehabilitative maintenance in the sum of $7,500.00 monthly. This award is retroactive to the date of first application (see DRL 240; see also Dooley v. Dooley, 128 AD2d 669, 513 N.Y.S.2d 167 [1987]).
The defendant is entitled to this duration of maintenance based upon a host of factors not least of which is the young age of the child and the fact that the plaintiff has chosen to have no contact with the child and therefore is not providing any of the child care responsibilities for the parties' infant child; however, perhaps the factor most necessitating an award of maintenance for a longer duration is the plaintiff's apparently purposeful efforts to interfere during this litigation with the defendant's attempts to obtain employment by not providing child care costs as ordered by the Court. In making this award, the Court credits the defendant's testimony at trial that her limited per diem employment is, in large part, because of the plaintiff's refusal to pay court ordered child care during this litigation. As a result of plaintiff's litigation tactic, defendant has almost no work experience as a physician's assistant.
The monthly award of maintenance shall continue for twenty-four (24) months from the date plaintiff complies with DRL 253. In awarding this duration of maintenance the Court is mindful that if the plaintiff immediately complies fully with DRL 253 and removes all barriers to the defendant's remarriage then twenty-four (24) months from the date of this decision and order would coincide with the parties' child being five (5) years old and eligible to be in school full-time (as detailed herein below). At that time, defendant would be better situated to obtain employment commencerate with her education and licensing as a physician's assistant; however, if plaintiff delays in complying with DRL 253 his maintenance obligation will continue [see generally Mizrahi-Srour v Srour, 138 AD3d 801 [2016]; see also Domestic Relations Law §§ 236[B][6][d] and [o]; Pinto v Pinto, 260 AD2d 622 [1999]; Schwartz v Schwartz, 235 AD2d 468 [1997]).
Maintenance shall be taxable to the recipient and deductible by the payor to the extent permitted by law (see 26 USC § 71[b][1][B]; see generally Girgenti v. Girgenti, 81 AD3d 886, 917 N.Y.S.2d 258 [2 Dept., 2011]; Grumet v. Grumet, 37 AD3d 534, 829 N.Y.S.2d 682 [2 Dept., 2007]; Markopoulos v. Markopoulos, 274 AD2d 457, 710 N.Y.S.2d 636 [2 Dept., 2000]. The maintenance shall be payable on the first of each month commencing on the first of the month after entry of the judgment of divorce. Future payments shall terminate in the event of the defendant's remarriage, her death or the plaintiff's death.
Child Support
Section 240 of the Domestic Relations Law of New York provides guidelines by the Child Support Standards Act ("CSSA") which must be considered in ascertaining child support. "[T]he CSSA provides a precisely articulated, three-step method for determining child support' [quoting Matter of Cassano, 85 NY2d 649, 652, 628 N.Y.S.2d 10, 651 N.E.2d 878 (1995)]. The first step requires the computation of combined parental income' (Domestic Relations Law § 240[1—b][b][4]; [c][1] ). The amount of income' attributed to each parent is derived by adding gross income, as reported on the most recent Federal tax return, and, to the extent not included as gross income, investment income, imputed income and other income received' by the parent from eight enumerated sources' " (Matter of Graby v. Graby, 87 NY2d 605, 609—610, 641 N.Y.S.2d 577 [1996], quoting Family Ct Act § 413[1][b][5].
After computing statutory income, a limited number of deductions are allowable under Domestic Relations Law § 240(1—b). The CSSA provides for eight categories of deductions from income, which includes maintenance payments and Federal Insurance Contributions Act (FICA) taxes paid (see Domestic Relations Law § 240[1—b][b][5][vii][A]—[H]. Significantly, receipt of a distributive award payments is not a statutory category of income, nor is the payment of a distributive award a recognized deduction.The court next multiplies the combined parental income figure, up to a ceiling of $80,000, by a designated percentage based on the number of children to be supported, and then allocates that amount between the parents, applying each parent's respective portion of the total income to reach the amount of each parents support obligation (Domestic Relations Law § 240[1—b][b][3]; [c][2]. In the final step, where combined parental income exceeds $80,000, the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of [Domestic Relations Law § (1—b) and/or the child support percentage' (Domestic Relations Law § 240[1—b][c] [3] ).(Holterman v. Holterman, 3 NY3d 1, 814 N.E.2d 765 [2004]).
The CSSA formula provides for regular increase in the statutory guideline cap over time. The CSSA cap is currently $148,000.00.
Effective January 31, 2010,"[t]he court shall multiply the combined parental income up to the amount set forth in paragraph (b) of subdivision two of section one hundred eleven-I of the social services law by the appropriate child support percentage and such amount shall be prorated in the same proportion as each parent's income is to the combined parental income." (DRL 240 1—b [c][2] ). The Social Services law states that:
[t]he combined parental income amount to be reported in the child support standards chart and utilized in calculating orders of child support in accordance with subparagraph two of paragraph (c) of subdivision one of section four hundred thirteen of the family court act and subparagraph two of paragraph (c) of subdivision one-b of section two hundred forty of the domestic relations law shall be one hundred thirty thousand dollars; provided, however, beginning January thirty-first, two thousand twelve and every two years thereafter, the combined parental income amount shall increase by the product of [*24]the average annual percentage changes in the consumer price index for all urban consumers (CPIU) as published by the United States department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars. (Social Services Law § 111—I[2][b] ).Domestic Relations Law section 240 1—b (b)(5)(iii) further defines gross income. "[T]o the extent not already included in gross income in clauses (I) and (ii) of this subparagraph, the amount of income or compensation voluntarily deferred and income received, if any, from the following sources:(A) workers' compensation,(B) disability benefits,(C) unemployment insurance benefits,(D) social security benefits,(E) veterans benefits,(F) pensions and retirement benefits,(G) fellowships and stipends, and(H) annuity payments;"As detailed above, in determining a party's child support obligation, the court need not rely upon a party's own account of his or her finances, but may impute income based upon the parties' past income or demonstrated earning potential or on the income the parent is capable of earning "by honest efforts" (Morille—Hinds v. Hinds, 87 AD3d 526, 928 N.Y.S.2d 727 [2 Dept.,2011]). This is particularly true where the record supports a finding that a parties' reported income on a tax return is suspect (see Maharaj—Ellis v. Laroche, 54 AD3d 677, 863 N.Y.S.2d 258 [2 Dept.,2008]). Further, it is well-established that the court can award child support based on the needs of the child where the court finds that a payor spouse's representations regarding income are not credible (see Domestic Relations Law § 240[1—b][k]; see also Lew v. Lew, 82 AD3d 1171, 920 N.Y.S.2d 230 [2 Dept.,2011]).
Domestic Relations Law 240 1—b (b)(5)(iv) states that "... at the discretion of the court, the court may attribute or impute income from, such other resources as may be available to the parent, including, but not limited to:
(A) non-income producing assets,(B) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirectly ... confer personal economic benefits,(C) fringe benefits provided as part of compensation for employment, and(D) money, goods, or services provided by relatives and friends;Domestic Relations Law section 240 1—b (b)(5)(v) specifically permits "an amount imputed as income based upon the parent's former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support". Herein-above, the Court imputed annual income of $406,000.00 to the plaintiff based upon his reported income in 2015, the year the parties were living together, before [*25]the plaintiff commenced this litigation and subsequently manipulated and decreased his reportable income below $200,000.
The Court next multiplies the combined parental income figure up to an initial statutory cap by a designated percentage based on the number of children to be supported, and then allocates that amount between the parents, applying each parent's respective portion of the total income to reach the amount of each parent's support obligation (see Holterman v. Holterman, 3 NY3d at 11, 781 N.Y.S.2d 458, 814 N.E.2d 765, supra, quoting DRL 240[1—b][b][3]; [c][2] ). The current Combined Parental Income Cap under the CSSA is $148,000.00. In the final step, where combined parental income exceeds the statutory cap — as is the case here — "the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of [Domestic Relations Law § 240(1—b) ] and/or the child support percentage" (id).
The "paragraph (f)" factors include the financial resources of the parents and child, the health of the child and any special needs, the standard of living the child would have had if the marriage had not ended, tax consequences, non-monetary contributions of the parents toward the child, the educational needs of the parents, the disparity in the parents' incomes, the needs of other nonparty children receiving support from one of the parents, extraordinary expenses incurred in exercising visitation and any other factors the court determines are relevant (see Matter of Cassano v Cassano, 85 NY2d 649, 628 NYS2d 10 [1995]).
Finally, the court is required to articulate its reasons for awarding child support in addition to basic child support (see Wallach v. Wallach, 37 AD3d 707, 831 N.Y.S.2d 210 [2 Dept., 2007]).
Although such an order may reduce a party's child support obligation from that calculated by application of the CSSA statutory guidelines, "[i]n no instance shall the court order child support below twenty-five dollars per month" (Family Ct Act § 413[1][g]; see Domestic Relations Law § 240[1—b] [g] ). In addition, a noncustodial parent's child support obligation resulting from the application of the statutory guidelines may be reduced where that obligation would place that parent below the self-support reserve level (see Family Ct Act § 413[1][b][6]; Domestic Relations Law § 240[1—b][b][6]; Harrison v. Harrison, 255 AD2d 490, 491 [1998]; Matter of Keay v. Menda, 210 AD2d 483, 483—484 [1994] ). Under such circumstances, the support obligation to be imposed is the greater of $25 per month or the difference between the noncustodial parent's income and the self-support reserve (see Family Ct Act § 413[1][d]; Domestic Relations Law § 240[1—b][d] ).(see Moore v. Abban, 72 AD3d 970, 899 N.Y.S.2d 362 [2 Dept., 2010]).
The Court herein-above imputed income to the plaintiff of $406,000. Plaintiff lists the following on his affidavit of net worth dated April 25, 2017: New York City local tax of $10,416 and FICA taxes of $9,311. As such, the Court will deduct those payments from his imputed income as follows: $406,000 less $19,727 = $386,273.
Under the controlling statutory scheme at the date of commencement of this action and the applicable case law, the payor spouse is entitled to a deduction for an award of maintenance from his income for the purposes of calculating child support (see generally Lee v. Lee, 18 AD3d 508, 795 NYS2d 283 [2 Dept.,2005]). As such, the plaintiff's income for the purposes of [*26]calculating child support is ($386,273 - $90,000 [annual award of maintenance to defendant] = $296,273).
The Court herein-above found the defendant credible regarding her income. Defendant's annual income as reported on her 2016 income tax return was $49,345 ($19,678 reported as "wages, salaries, tips, etc." and $29,667 reported as "alimony received"). Furthermore, under the statutory scheme controlling when this case was commenced, "maintenance payments received and reported on a party's most recently filed income tax return should be included as income for purposes of calculating child support" (Lueker v. Lueker, 72 AD3d 655, 898 N.Y.S.2d 605 [2 Dept., 2010]; see Domestic Relations Law § 240 [1-b] [b] [5] [i]; see also Ansour v Ansour, 61 AD3d 536, 536-537 [2009]; Matter of Krukenkamp v Krukenkamp, 54 AD3d 345, 346 [2008]). There is no indication in the record that any FICA or New York City local tax was withheld from the defendant's 2016 income so no deduction for those possible deductions is appropriate.
As such, the combined parental income is $345,618 ($296,273 [plaintiff's imputed income of $386,273 less maintenance awarded herein $90,000 annually] + $49,345 [defendant's 2016 reported income] = $345,618).
The Court finds that in this case the defendant offered no testimony or evidence related to why it would be appropriate to calculate basic child support on combined parental income above the cap of $148,000. Furthermore, the Court notes that the parties' infant child is two (2) years old and does not appear from the testimony and evidence presented at trial to have an special needs that would necessitate an award of child support, at this time, above the statutory cap of $148,000. As such, in accordance with CSSA, 17% (for one child) of the combined parental income up to the $148,000.00 cap shall be applied to child support. Based on the parties' combined parental income, the plaintiff's pro rata obligation is 85.72% and the defendant's pro rata obligation is 14.28%. As such, the basic child support award payable from plaintiff to defendant as and for basic child support shall be $1,797.32 monthly [$21,567.84 annually] ($148,000 x .17 = $25,160/12 = $2,096.67 x .8572 = $1,797.32).
The plaintiff shall pay the defendant the sum of $1,797.32 monthly as and for child support beginning on August 1, 2018 and continuing on the 1st day of each month thereafter until the child is 21 years of age or emancipated, whichever is sooner. Payment of the monthly child support shall be made by the plaintiff directly to the defendant unless the defendant elects to open an account with Support Collection Unit (SCU).
The parties shall be pro rata financially responsible for statutory add-ons, including extracurricular activities and unreimbursed medical expenses, as follows: plaintiff, 85.72%; defendant, 14.28%.
The plaintiff shall contribute his pro rata share for reasonable child care when the child is not in school necessitated by the defendant seeking or maintain employment. The Court specifically finds that the current child care obtained by the defendant ($1,500.00 monthly) is reasonable and finds that there is absolutely no evidence to support the plaintiff's testimony that he believes that full-time child care in Brooklyn costs $300.00 monthly.
The Court notes if plaintiff fails to pay reasonable child care costs while the defendant and that negatively impacts the defendant's ability to seek or maintain employment it may be a basis for defendant to seek to extend the amount and/or duration of maintenance inasmuch as the plaintiff cannot manipulate the ability of the defendant to earn money by refusing to contribute [*27]his pro rata share of child care expenses while also not paying maintenance.
The defendant shall provide the plaintiff with an itemized bill of pro rata expenses together with proof of payment for the prior month by certified mail on the first (1st) day of the month and the plaintiff shall provide the defendant with payment for his pro rata share of the child care expenses by certified mail on or before the 15th day of the same month.
Retroactivity
The Court notes that an award of maintenance and child support is effective as of the date of application (see Domestic Relations Law § 236 [B][6][a]; see also Elimelech v. Elimelech, 58 AD3d 672, 874 N.Y.S.2d 490 [2 Dept., 2009]; Evans v. Evans, 57 AD3d 718, 870 N.Y.S.2d 394 [2 Dept., 2008]. "Courts have continuing jurisdiction to modify or vacate support orders until they are completely satisfied, except that they have no discretion to reduce or cancel arrears of child support which accrue before an application for downward modification of the child support obligation" (Dembitzer v. Rindenow, 35 AD3d 791, 828 N.Y.S.2d 139 [2 Dept., 2006] [quoting Hasegawa v. Hasagawa, 290 AD2d 488, 490, 736 N.Y.S.2d 398 [2 Dept., 2002]; see Matter of Dox v. Tynon, 90 NY2d 166, 659 N.Y.S.2d 231, 681 N.E.2d 398 [1997]; Matter of Jenkins v. McKinney, 21 AD3d 558, 799 N.Y.S.2d 904 [2 Dept., 2005]; Matter of Miller v. Miller, 308 AD2d 541, 764 N.Y.S.2d 850 [2 Dept., 2003]; Howfield v. Howfield, 250 AD2d 573, 574, 671 N.Y.S.2d 988 [2 Dept., 1998]; Domestic Relations Law section 236[B][9][b]).
The plaintiff's combined maintenance and child support obligation to the defendant is $9,297.32 monthly as ordered herein above. The retroactive award is calculated from the date of the defendant's first application, which was March 9, 2016 when an order to show cause was filed seeking pendente lite financial relief including child support and maintenance totals $278,919.60 ($9,297.32/month x 30 months = $278,919.60). Plaintiff shall be entitled to a credit for any maintenance or child support payments made directly to the defendant pursuant to court order by negotiable instrument. Retroactive sums due by reason of this award shall be paid by plaintiff to defendant within sixty (60) days of service of notice of entry of this decision and order. Failure of plaintiff to comply with this payment shall result in the defendant having the right to file a money judgment with the Office of the County Clerk against plaintiff for the sum outstanding, together statutory costs and interest, from the date of default upon ten (10) days written notice of entry of this decision and order without the need to seek further Court intervention.
"Refund" for Health Insurance Premiums
Plaintiff's request that defendant "refund" the health insurance premiums he paid during this litigation is categorically rejected. It is undisputed that plaintiff had an ongoing obligation since the written order dated April 22, 2016 to pay all (100%) of the child care costs for the child. Defendant testified that the child care expense for the child's full-time day care is $1,500 monthly and that the child has been in day care since June 2017. As such, the plaintiff's obligation for child care was $19,500 ($1,500 monthly x 13 months $19,500). The Court found that the child care expense for the child was reasonable under the facts and circumstances presented here.
The record, including plaintiff's own testimony, established that plaintiff made no ($0) payments toward the child care costs for the child. As such, the plaintiff left defendant with no option but to use the payments plaintiff did make to cover the child care expense so that she could look for employment. The plaintiff is not entitled to a "refund" but he is entitled to a credit [*28]against his child care expense arrears for any health insurance premiums he provided to the defendant between December 2016 and August 2018 that defendant used to pay child care expenses. Plaintiff shall provide the defendant with an accounting on or before August 15, 2018 of the health insurance premium payments that he made during this litigation and that sum shall be credited against his child care arrears. The remaining child care arrears, if any, shall be paid in full (100%) by September 1, 2018.[FN8] If the health insurance premiums paid by plaintiff exceed the child care arrears then the excess shall be applied as a credit against his retroactive arrears for maintenance and child support as detailed herein If plaintiff fails to make that payment the defendant shall be permitted to enter judgment, together with statutory interest from the date of default, with the Office of the County Clerk upon affidavit of non-compliance on ten (10) days notice to plaintiff by regular and certified mail without further Court intervention.
Yeshiva Tuition Expenses
DRL 240 [1-b] (c ) (7) provides:
(7) Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award education expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment of the education provider.The Court may also direct the parties to contribute toward discretionary add-on expenses such as private school tuition having regard for the circumstances of the case and of the respective parties and in the best interests of the children (see Cohen v Cohen, 21 AD3d 341 [2005]; DRL §(1-b)(c)(7). Under the CSSA, private school tuition is considered an "add on" expense, which, if otherwise appropriate, is to be paid over and above the basic allowance (see DRL §240 (1-b)(h)).
Here, the child is only two (2) years old and is not currently enrolled in yeshiva; however, the parties both testified that they are observant and maintain kosher homes. While the record established that the plaintiff did not receive religious education during his childhood in the former Soviet Union and the defendant attended public schools in New York City, the record reveals that the plaintiff obtained religious education once he immigrated to the United States and since that time has been and continues to be very involved in the religious community. Both of these parents hold advanced education degrees and are medical professionals.
The records entered into evidence and plaintiff's own testimony established that plaintiff provides regular and generous financial support to certain Brooklyn yeshivas by way of charitable contributions. The Court notes that bank records entered into evidence revealed that plaintiff often made monthly charitable contributions to yeshivas in excess of the parties' child's current monthly daycare expense, which the plaintiff simultaneously refused to pay.
It would certainly be incongruous with the plaintiff's own financial charitable actions — in effect meritoriously subsidizing the yeshiva education of other people's children — that he would not financially support his own child receiving a yeshiva education. It appears to the Court that the child would have attended a yeshiva had the marriage continued.
As such, the Court finds that the parties shall be pro rata financially responsible for the cost of private yeshiva for the parties' child when the child reaches four (4) years of age.
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 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]).
Appellate case law has held that to require that a life insurance policy be reduced each year "...by the amount of child support paid in the prior year, is difficult to administer" (Fogarty v. Fogarty, 284 AD2d 300, 302, 725 N.Y.S.2d 673 [2 Dept.,2001]) and that a fixed amount of life insurance for collateralization of support obligations is preferable (see Lueker v. Lueker, 72 AD3d 655, 898 N.Y.S.2d 605 [2 Dept.,2010]; see also Corless v. Corless,18 AD3d 493, 795 N.Y.S.2d 273 [2 Dept.,2005]; Morton v. Morton, 130 AD2d 558, 515 N.Y.S.2d 499[2 Dept.,1987]). The plaintiff shall obtain a life insurance policy in the sum of $750,000.00 and shall designate the defendant irrevocable beneficiary for the amount of the maintenance obligation and the children irrevocable beneficiaries for the remaining balance until the and maintenance obligation ceases or the death of either of the parties. Upon the cessation of the maintenance obligation, the plaintiff shall designate the child the irrevocable beneficiary until his child support obligation ceases or the death of either of the parties or the child. The plaintiff shall provide proof of the existence of said policy to defendant by January 15 of each year by regular and certified mail to an address provided by the defendant inasmuch as the defendant's address is confidential.
Removal of Barriers to Remarriage
Domestic Relations Law section 253 (DRL § 253) details the actions required for divorcing spouses to remove barriers to remarriage. The statute states, as relevant here:
2. Any party to a marriage defined in subdivision one of this section who commences a proceeding to annul the marriage or for a divorce must allege, in his or her verified [*29]complaint: (i) that, to the best of his or her knowledge, that he or she has taken or that he or she will take, prior to the entry of final judgment, all steps solely within his or her power to remove any barrier to the defendant's remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision.3. No final judgment of annulment or divorce shall thereafter be entered unless the plaintiff shall have filed and served a sworn statement: (i) that, to the best of his or her knowledge, he or she has, prior to the entry of such final judgment, taken all steps solely within his or her power to remove all barriers to the defendant's remarriage following the annulment or divorce; or (ii) that the defendant has waived in writing the requirements of this subdivision. In the instant case, the parties observe the Jewish faith. Within the Jewish faith, even if a civil divorce is granted, a husband must grant a wife a Get (a religious divorce) before she can date or remarry. Without receiving a Get, a Jewish woman is an "agunah," or a chained woman, within the Jewish community.An inquest and allocution were held on September 11, 2017 during which the plaintiff-husband affirmed that he would comply with DRL § 253. Plaintiff also testified during cross-examination on September 18, 2017 that he would give the defendant a get the following morning but he did not. Again during the proceedings on December 12, 2017 and December 13, 2017 the plaintiff represented that he would provide a "get" to the defendant. The Court directed on the record on December 12, 2017, based upon plaintiff's representations on the record, that counsel for the parties notify the Court by joint correspondence that plaintiff had complied with DRL 253 later than the following Wednesday (December 20, 2017). Notification of plaintiff's compliance with DRL 253 was not provided and, as of now, there is nothing before this Court to suggest that plaintiff has complied with DRL § 253.
The Court has the authority to consider the consequences to a wife where a husband refuses to remove the barriers to her remarriage, pursuant to Domestic Relations Law section 236(B)[5](h). Domestic Relations Law Section 236(B)[5](h) states that "[i]n any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of a barrier to remarriage as defined in subdivision six of section two hundred fifty-three of this article, on the factors enumerated in paragraph d of this subdivision."
Here, defendant cross moved for a divorce pursuant to DRL 170(7). As such, if plaintiff does not comply with DRL 253 the defendant may proceed on her application for divorce and she may move for plaintiff to be held in contempt in as much as he is the plaintiff. If plaintiff fails to comply with DRL 253 it may be a basis for defendant to seek a future modification of the duration of maintenance in the future.
If plaintiff does not comply with DRL 253 the defendant may submit a judgment of divorce on notice to plaintiff based upon her counter claim for divorce under DRL 170(7) where she has stated under oath.
COUNSEL FEES
The controlling statute in effect at the time of commencement [FN9] — December 23, 2015 — Domestic Relations Law 237(a), states that:
There shall be a 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."The intent of the provision is to ensure a just resolution of the issues by creating a more level playing field with respect to the parties' respective abilities to pay counsel, 'to make sure that marital litigation is shaped not by the power of the bankroll but by the power of the evidence.'" (Silverman v. Silverman, 304 AD2d 41, 756 N.Y.S.2d 14 [1 Dept., 2003], quoting Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, DRL C237:1, at 6, citing O'Shea v. O'Shea,93 NY2d 187, 689 N.Y.S.2d 8 [1999]; see also DiBlasi v. DiBlasi, 48 AD3d 403, 852 N.Y.S.2d 195 [2 Dept.,2008]).
It is well-established that "'[i]n a matrimonial action, an award of attorney's fees or an expert fee is a matter committed to the sound discretion of the trial court'" (Montoya v. Montoya, 143 AD3d 865, 865, 40 NYS3d 151 [2 Dept.,2016] citing Vitale v. Vitale, 112 AD3d 614, 614-615, 977 NYS2d 258).
"In determining whether to award final counsel fees at the end of trial, a more detailed inquiry is warranted" (Duval v. Duval, 144 AD3d 739, 743, 40 NYS3d 535 [2 Dept.,2016]). During this more detailed inquiry the New York State Court of Appeals has ruled that the Court must "review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions" (DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168 [1987] ; see also Johnson v. Chapin, 12 NY3d 461, 909 N.E.2d 66 [2009]; see e.g. see also Badawi v. Alesawy, 135 AD3d 793, 795, 24 NYS3d 354 [2 Dept.,2016]; Levy v. Levy, 44 AD3d 398, 771 N.Y.S.2d 386, [2 Dept., 2004], citing DRL 237[a], [d]; see also Kearns v. Kearns, 270 AD2d 392, 393, 704 N.Y.S.2d 627 [2 Dept., 2000], appeal denied 95 NY2d 760 [2000]).
In Duval v. Duval, the Appellate Division, Second Department held that when making a final award of counsel fees "the court is in the best position to determine whether counsel fees should be charged to the moneyed [sic] spouse, or charged to the less moneyed [sic] spouse as an offset against the equitable distribution award ultimately received, or divided between the parties" (144 AD3d 739, 743, 40 NYS3d 535 [2 Dept.,2016]).
Additionally, it is well-established that the Court may also take into account "...whether either party has engaged in conduct or has taken positions resulting in a delay of the proceedings or unnecessary litigation." (Prichep v. Prichep, 52 AD2d 61, 65 [2 Dept 2008]; see also Black v. Black, 140 AD3d 816, 33 NYS 3d 379 [2 Dept.,2016]; Vitale v. Vitale, 112 AD3d 614, 615 [2 Dept 2013]).
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 AD2d 625, 636 N.Y.S.2d 840 [2 Dept., 1996]; see also Pfluger v. Pfluger, 35 AD3d 828, 828 N.Y.S.2d 118 [2 Dept.,2006]; Nee v. Nee, 240 AD2d 478, 479, 658 N.Y.S.2d 440 [2 Dept., 1997]; Burns v. Burns, 193 AD2d 1104, 1105, 598 N.Y.S.2d 888 [4 Dept., 1993]; see also Marocco v. Marocco, 53 AD2d 707, 708, 383 N.Y.S.2d 939 [2 Dept., [*30]1976]; Woessner v. Woessner, 108 AD2d 812, 813, 485 N.Y.S.2d 325 [2 Dept., 1985]).
According to 22 NYCRR 1400.2, attorneys practicing Domestic Relations Law are required to provide their clients with itemized bills for their services every sixty (60) days as set forth in the Statement of Clients Rights and Responsibilities. Attorneys must also supply clients with a written retainer agreement which includes a provision requiring attorneys to bill client at least every sixty (60) days (22 NYCRR 1400.3). Attorneys who fail to substantially comply with 22 NYCRR 1400.2 and 22 NYCRR 1400.3 are precluded from recovering legal fees from the opposition party (see Montoya v. Montoya, 143 AD3d 865, 865, 40 NYS3d 151 [2 Dept.,2016]; also Rosado v. Rosado, 100 AD3d 856, 995 NYS2d 119 [2 Dept.,2012]). "'The court rules imposing certain requirements upon attorneys who represent clients in domestic relations matters (see 22 NYCRR part 1400) were designed to address abuses in the practice of matrimonial law and to protect the public'" (Rosado v. Rosado, 100 AD3d 856, 995 NYS2d 119 [2 Dept.,2012] citing Hovanec v. Hovanec, 79 AD3d 816, 817, 912 N.Y.S.2d 442 [2 Dept.,2010]. However, when a client does not receive a bill every sixty (60) days but does not object to the timeliness of the invoice the client is assumed to have waived such right (see Rivacoba v. Aceves, 110 AF3d 495, 973 NYS2d 585 [1 Dept.,2013]). Furthermore, "[i]t is the right of the client, not the adversary spouse, to be billed at least every 60 days, and the client may waive that right" (id at 495, citing Petosa v. Petosa, 56 AD3d 1296, 1298, 870 N.Y.S.2d 178 [4 Dept.,2008]).
Here, the parties stipulated on the record in open court on December 12, 2017 (see Order dated December 12, 2017) to submit the issue of a final award of counsel fees to the Court by stipulation and waived their right to an evidentiary hearing on the issue (see Reehill v. Reehill, 181 AD2d 725 [2 Dept 1992]; Pinto v. Pinto, 260 AD2d 622 [2 Dept 1999]).
The invoice shows that defendant's counsel billed at an hourly rate of $400. Defendant paid an initial retainer of $3,000 which she represented that she borrowed from friends and family. Based upon plaintiff's affirmation dated February 27, 2018, plaintiff paid $32,000 in legal fees to defendant's current counsel during this litigation. It is undisputed that plaintiff did not pay any counsel fees on defendant's behalf voluntarily. According to defendant's counsel's affirmation dated February 27, 2018 the remaining balance due for legal fees rendered in this matrimonial action is $43,810.75. Defendant's counsel requests that plaintiff pay his firm the total amount of the outstanding balance—$43,810.75—and requests leave to seek additional fees if plaintiff submits papers which require addition work on defendant's counsel's behalf. Plaintiff's counsel stated in his affirmation in opposition to defendant's counsel's request for counsel fees on behalf of defendant that plaintiff had paid him $25,000 in legal fees. Plaintiff's counsel did not attach any billing records to his affirmation.
Defendant's counsel argues that an award of counsel fees is appropriate here because plaintiff is the monied spouse, as recognized by the Court in its pendente lite order dated April 22, 2016, and, as such, is in a greater financial position to pay the fees associated with litigation. Furthermore, defendant's counsel argues that plaintiff's actions in deliberately failing to pay support resulted in additional work that needed to be done and fees that needed to be paid.
Plaintiff's attorney submitted an memorandum in opposition to defendant's application for [*31]a final award of counsel fees dated March 6, 2018.[FN10] The gravamen of plaintiff's counsel's opposition to defendant's application for a final award of counsel fees appears to be plaintiff's position that defendant should be penalized for not being employed full-time and the fact that defendant concedes that she used the health insurance premiums forwarded by plaintiff to her to pay child care costs so that she could seek employment when plaintiff refused to pay the court ordered child care expenses so that she could seek employment and work. He also posits that no final award of counsel fees would be appropriate because he paid for all the transcript costs.
In the instant matter, there is clearly a disparity in income between the parties. Plaintiff's counsel's memorandum of law concedes that "it is uncontested that the wife is the less-monied spouse." Plaintiff testified that he was solely responsible for supporting the financial needs of the family during the marriage. Plaintiff's income tax returns list his annual income as $406,160 in 2015 at the end of which the divorce action was commenced, and $189,569 in 2016. This Court found herein-above that plaintiff's representations regarding his income were wholly not credible based both on his lack of candor with the Court and his voluntary under-employment after commencing this litigation. Defendant did not work during the marriage and has only been able to work part-time per diem shifts when her schedule, and that of the parties' child, allows since the marriage broke down. Defendant's income tax return lists her annual income as $49,345 in 2016 which includes the pendente lite maintenance payments made by the plaintiff to her in 2016 in the sum of $29,667.
The parties here had a relatively short marriage; however, as detailed herein-above, the marriage resulted in a child who is still very young and the plaintiff's actions during this litigation have directly undermined the defendant's ability to find and maintain full-time employment. Clearly, the future earning capacity of the parties is quite different with the plaintiff capable of earning far more than the defendant both in the immediate future and after the child is older and the defendant is able to have full-time employment.
In Denholz v. Denholz, a case where the marriage was of "short duration," the Court found that there was a "marked disparity between the income and resources of the respective parties" and "paying her own counsel fees would significantly deplete the [wife's] meager resources" and awarded the wife "reasonable counsel fees." (Denholz v. Denholz, 147 AD2d 522, 525, 537 NYS2d 607 [2d Dept., 1989]).
Plaintiff's counsel argues that the Court should take into account money that plaintiff has already paid to defendant when determining whether to award counsel fees. In a written decision dated April 22, 2016, the Court issued a pendente lite support award ordering plaintiff to pay monthly maintenance, child support, child care expenses, and health insurance premiums for a plan selected by the defendant . Plaintiff has been late in paying both maintenance and child support, refuses to pay child care expenses, and only provides defendant with enough money to pay for an insurance plan that he chose. Defendant's counsel has had to file "numerous contempt motions" to force plaintiff to make his obligatory payments. This, in turn, has cost additional money for defendant due to her attorney needing to work extra hours to prepare the motions.
Because plaintiff did not provide money for the parties' child's child care expenses, [*32]defendant was forced to use the money that had been provided for health insurance to pay for child care. Without having her child in full-time day care, she would not have been able to look for employment, a search which she states she has documented in a journal, or work part-time. Plaintiff's counsel's statements that defendant "has not attempted to obtain full-time employment" and has "misappropriated the health insurance proceeds that were provided by Plaintiff" are not supported by the record and are disingenuous based upon the findings detailed herein.
Defendant is awarded $43,810.75, the amount of counsel fees requested by defendant's counsel on notice to plaintiff, in counsel fees, together with disbursements such as transcript fees, to be paid by the plaintiff. Plaintiff is hereby ordered to pay this award of counsel fees directly to defendant's counsel within thirty (30) days of service of notice of entry of this decision and order. If plaintiff fails to do so defendant's counsel may enter a judgment, together with statutory costs and interest from the date of default, of any unpaid sum with the Office of the County Clerk upon ten (10) days notice to plaintiff by certified and regular mail of an affirmation of non-compliance with no need to seek further Court intervention. This amount is fair and reasonable especially given the recalcitrant nature of the plaintiff and the amount of professional services defendant's counsel performed responsive and necessitated by plaintiff's obfuscating tactics and attitude toward the litigation process, which he commenced, and toward the defendant.
Conclusion
Judgment of divorce is granted to the plaintiff on the grounds of irretrievable breakdown DRL §170(7) upon compliance with DRL 253. If plaintiff fails to comply with DRL 253 by removing any barriers to remarriage within ten (10) days of service of notice of entry of this decision the defendant shall be entitled to settle a judgment of divorce based upon her pleadings. All ancillary issues herein are resolved. Defendant may resume the use of her maiden name or prior surname if she so chooses. Either party may settle findings of fact and conclusions of law and a judgment of divorce with a copy of this decision within 60 days. A separate order will be signed herein ordering the plaintiff to comply with DRL 253 forthwith. The foregoing constitutes the decision of this Court.
ENTER:
_________________________
Hon. Jeffrey S. Sunshine
J.S.C. Footnotes
Footnote 1:Plaintiff provided this testimony after being provided an opportunity to confer with his attorney outside the presence of the Court regarding his right to invoke his Fifth Amendment right against self-incrimination and that invoking the Fifth Amendment could result in an adverse inference. Plaintiff's counsel stated on the record that plaintiff wished to answer the question against his legal counsel.
Footnote 2:Defendant testified that "Motzei Shabbat" means "after Sabbath — after a Friday [sic]."
Footnote 3:On cross-examination, plaintiff testified that he did not know where that $3,589 in business income was earned.
Footnote 4:Order dated March 31, 2016.
Footnote 5:The record at trial, including plaintiff's own testimony and banking records entered into evidence, revealed that plaintiff used his business bank account and his personal bank account interchangeably by routinely depositing business income into his personal bank account and by paying personal expenses out of his business account. Bank records from his business and personal accounts reveal the following: that the available cash balance of Apple xx49 increased from January 2016 at $258,750.69 to December 31, 2016 at $306,350.44, an increase of $47,599.75 and that Apple xx24 decreased from January 2016 at $471,048.11 to December 31, 2016 at $416,226.47, a decrease of $54,821.64 which resulted in a net decrease of available cash balance of only $7,221.89.
Footnote 6:The Court notes that the plaintiff does not list an expense for a housekeeper but the record at trial included testimony by the defendant that the parties employed a housekeeper during the marriage and the plaintiff testified that after changing the locks on the marital residence and selling all of the household furnishings from the marital residence he moved in with his mother.
Footnote 7:The Court has not applied the final maintenance guidelines calculations up to $175,000 because that statute only applies to cases commenced after January 25, 2016 and this action was commenced on December 23, 2015.
Footnote 8:Assuming that plaintiff paid $966 monthly consistently from December 2016 through July 2018 he would have paid $20,286 [$966 monthly x 21 months = $20,286] which would exceed the claimed child care expenses of $19,500 [$1,500 monthly x 13 months = $19,500] by $786 ($20,286 — $19,500 = $786).
Footnote 9:This statute was amended effective November 15, 2015.
Footnote 10:Plaintiff's attorney also submitted an affirmation of lateness, a letter requesting acceptance of a late memorandum, and an affidavit of service on defendant's attorney, David Seidman.
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