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In the case below in Kings County Supreme Court, Judge
Sunshine awards a divorce to a couple who were married for 30 years,
one of whom was a Holocaust Survivor. Judge Sunshine goes into great detail discussing both the law and the facts of this case.
S.A., Plaintiff, against K.F., Defendant.
XX/09
SUPREME COURT OF NEW YORK, KINGS COUNTY
2009 NY Slip Op 50141U; 22 Misc. 3d 1115A; 880 N.Y.S.2d 226; 241 N.Y.L.J. 27
Decided: January 28, 2009
Justice Jeffrey S. Sunshine
KINGS COUNTY
Supreme Court
Plaintiff commenced this matrimonial
action on October 1, 2003.1
Findings of Fact
The parties were married in December 1972 in Brooklyn,
NY.2 The husband is 80 years of age and the wife is 61 years of age.
The parties do not have any children in common.
The husband is a high school graduate and has obtained two associate degrees.
He was ordained as a rabbi in 1955. The wife has a Bachelors of Science in
Education. She began her employment during the marriage in 1973 at a New York State agency where she is still employed. The husband was
employed during the first 10 years of the marriage, but has been unemployed
since, and instead has spent his time volunteering for different religious and
civil rights organizations. His only income is from Social Security, though
more recently he, reluctantly, accepted reparation payments as a Holocaust
survivor, from Austria.
The wife contends she was diagnosed with lung cancer and asthma, as well as
hypertension, acid reflux, and breathing problems for which she takes
medications. The husband alleges he has emphysema, arthritis, gout, gastroenterology
problems, and attention deficit disorder, and also takes medications for these
conditions.
Final Order of Protection
A final order of protection was entered against the husband in Kings County
Family Court on January 19, 2001 by the Hon. Nora Freeman, which directed, inter alia,
that the husband be excluded from the marital residence and refrain from
contacting the wife at her home and place of employment. The husband appealed
and the Appellate Division modified the order, adding that there were "aggravating
circumstances? including violent and harassing behavior by the husband towards
the wife which constitutes an immediate and ongoing danger to her;"3
[citation omitted to protect the identity of the parties].
Grounds
On October 1, 2003, the wife commenced this action against the husband, and
filed a summons and verified complaint with proof of service thereof alleging
that the husband's behavior towards her was cruel and inhuman, and pursuant to
Domestic Relations Law section 170 [1].
In a decision dated March 15, 2005, summary judgment on the issue of divorce was granted
by the Hon. Betsy Barros. That decision constitutes the law of the case and
this court is bound to recognize it as such (see Doscher v. Doscher, 54 A.D.3d 890, 865 N.Y.S.2d 238, [2 Dept.,
2008] [Supreme Court judge improperly overruled a court of coordinate
jurisdiction.]). The signing of the judgment related thereto has been held in
abeyance pending a hearing on jurisdiction and resolution of the Article 81
proceeding.
As stated above, the parties married in December 1972 in the State of New York. Both parties are over the age of 18, and have lived
in New York State continuously for at least one year immediately before
this action was started. The wife testified that she resided in Brooklyn,
New York during August 2000 when she initially sought relief
in Family Court, and continues to reside there. Furthermore, the cause of action
arose in Brooklyn, New
York and at all
relevant times the parties have resided in Kings
County including but not limited to the two (2) years
preceding the commencement of the action. Therefore, this court has
jurisdiction over the matter under Domestic Relations Law section 230 [2].
Standard of Living
The husband submitted a handwritten statement of net worth dated June 29, 2005, approximately three (3) years before the trial date.
He failed to provide an updated statement of net worth, at the time of trial
despite the wife's repeated requests, and contrary to the trial rules of this
court as such the only insight given as to his recent financial status was from
his testimony at trial.4 While the amounts stated in his 2005
statement of net worth are not entirely inconsistent with what was stated at
trial, the lack of documentation supporting the amounts claimed are troublesome
in assessing the husband's current financial situation. Moreover, Domestic
Relations Law section 236 requires disclosure by both parties of their
respective financial status. These disclosures include pay stubs and state and
federal tax returns. The husband included no such supporting documents, nor did
he cooperate in the discovery process. Therefore, there only exists sparse information
that this court can reference which are the amounts proffered by the husband in
his trial testimony and the 2005 statement of net worth.
The amounts recorded pursuant to the husband's 2005 statement of net worth
regarding the his monthly expenses are as follows: (1) rent $124.00; (2)
utilities $140.00; (3) food $600.00; (4) clothing $30.00; (5) laundry $60.00;
(6) unreimbursed medical $411.00; (7) household maintenance $110.00; (8)
educational $102.00; (9) recreational $28.00; (10) barber $15.00; (11) beauty
aides, cosmetics, drug items $15.00; (12) books, magazines, newspapers $30.00;
(13) gifts $20.00; (14) charitable contributions $30.00; (15) transportation
$38.00; and (16) loan payments $1,000.00. Accordingly, the total amount of his
monthly expenses, according to this net worth statement, is estimated at
$2,753.00.
At trial, the husband testified his monthly expenditures were as follows: (1)
rent $160.00; (2) utilities $119.00; (3) food $400.00; (4) clothing $100.00;
(5) laundry $120.00; (6) unreimbursed medical undetermined; (7) educational
$42.00; (8) recreational $110.00; (9) barber $20.00; (10) beauty aides,
cosmetics, drug items $60.00; and (11) charitable contributions $100.00.
Accordingly, the husband's estimated monthly expenses, based on his testimony
during direct examination, amounts to $1,231.00. There is a $1,532.00
difference in expenses between the 2005 statement of net worth and the
husband's testimony at trial ($2,753.00-$1,231.00 = $1,532.00).
Pursuant to the 2005 statement of net worth, he estimated his monthly gross
income as a total of $855.00: (1) dividends and interest $100.00; (2) social
security $755.00. He also estimated his total assets as follows: (1) personal
checking accounts $6,000.00; (2) joint savings account $63,170.44; and (3)
security deposits $1,217.47, totaling $70,387.91. He noted that he has
$12,000.00 in outstanding credit card debt to be paid in addition to his
monthly expenses.
In his summation, the husband contends his only gross income is $835.00 each month
from social security. He also testified that he receives $460.005
each month from reparation payments from Austria6, and has used
$27,500.00 from lump sum amounts he has received from Austria to date to pay his attorney fees. Based on this
testimony his monthly gross income is $1,295.00. During trial, he also
testified regarding his total assets, stating that he has: (1) Safra Bank
checking account $5,000.00; (2) Washington Mutual savings account $6,565.45;
(3) Washington Mutual savings account $4,145.01; (4) Washington Mutual CD
$15,000.00 (5) joint Safra Bank savings account with the wife $70,000.00; and
(6) debts owed to him $17,000.00. Thus according to his trial testimony his
total assets equal $117,710.46. The husband did note, however, that the Washington
Mutual CD in the amount of $15,000.00 is being held by the husband for his
nephew, as it is the remainder of amounts left by the nephew's father for the
husband to give to his nephew. He also testified that he has $29,960.00 total
in outstanding credit card debt, and owes a total of $6,000.00 in personal
debts.
Pursuant to the wife's updated statement of net worth, dated April 4, 2008, her
monthly expenses are as follows: (1) rent $1,287.00; (2) utilities $242.47; (3)
food $588.30; (4) clothing $251.00; (5) laundry $135.00; (6) insurance $494.81;
(7) unreimbursed medical $566.60; (8) household maintenance $86.70; (9)
household help of $50.00; (10) automotive $757.80; (11) recreational $484.73;
(12) income taxes $2,831.25; (13) beauty parlor $148.80; (14) union and
organization dues $44.42; (15) beauty aides, cosmetics, drug items $55.00; (16)
books, magazines, newspapers $62.70; (17) gifts $98.40; (18) charitable
contribution $250.00; (19) transportation $76.00; (20) religious organization
dues $33.00; and (21) unreimbursed business expenses $73.75. The wife's
estimated total monthly expenses amount to $8,617.73.
Pursuant to the wife's written statement of net worth, dated April 4, 2008, the wife's monthly gross income is $3,404.40 from
her New York State employment. She also estimated her total liquid
assets at $101,352.00, including: (1) Washington Mutual checking account
$700.00; (2) joint Safra Bank savings account $73,508.00; (3) Washington Mutual
savings account $10,959.00; (4) Chase savings account $506.00; (5) Apple
savings $1,595.00; and (5) New York Tax Free Bond Fund $14,084. The wife's New York State pension has a present day discounted value, as of
commencement, of $783,881.00. She also noted that she is indebted in the amount
of $3,474.00 for a car loan.
Due to the husband's lack of documentation regarding his net worth and the
conflicting 2005 statement of net worth, trial testimony and summation, this
court's knowledge of the husband's finances, particularly his assets,
liabilities and income, is limited to the sparse documentary evidence discussed
herein, and the parties testimony. Where one party fails to provide information
pursuant to discovery, the appropriate sanction, at the court's discretion, is
to hold what the other party says as truth, with regards to the information in
discovery being withheld (see Miceli v. Miceli, 233 A.D. 2d 372, 373, 650 N.Y.S. 2d 241, 242 [2
Dept., 1996] ["The sanction of preclusion imposed by the court is not
a satisfactory remedy in this case. Unlike a negligence action where a
preclusion order may foreclose presentation of a prima facie case or defense,
the preclusion of proof in an equitable distribution action could permit a
party to secrete the very property the other party is seeking to discover . . .
.[A] more appropriate sanction in this case would be to deem true the
defendant's allegations regarding the property about which discovery has been
withheld."]). Furthermore, where one party fails to comply with court
ordered demands, the court may use its discretion in determining equitable
distribution, and fashion a remedy based on the particular situations of the
parties involved, and on overriding concerns of fairness and equity (see Saleh v. Saleh, 40 A.D.3d 617, 618, 836 N.Y.S. 2d 201, 202 [2
Dept., 2007]).
Domestic Violence
The wife testified credibly to a history of violence and aberrant behavior
against her by the husband. In 1995 or 1996, the husband broke the wife's
pencils as she was preparing to leave for a civil service exam. When she did
not complete the exam in the time period that the husband wanted her to, he
yelled at her and kicked plants along the street in the presence of others who
were also exiting the examination site. The wife alleges that in 1999 her
finger was broken when her husband had an argument with her at the marital residence
and he grabbed her and pushed her on to the counter. She did not call the
police but did seek medical attention.
The wife contends that in the year 2000 there were a series of violent
incidents by the husband. In April 2000, following a heated argument between
the parties, the husband continuously smashed a vacuum cleaner into a chair
until the vacuum cleaner broke into pieces. The wife testified that
"[a]ctually, the end for that was only the bag for garbage from the vacuum
cleaner and the wheels that were recognizable.". On Memorial Day weekend
of May 2000, the husband awoke the wife at 5:00 a.m.
insisting that they pick up her cousin at the airport. The wife said that her
cousin made alternate arrangements to be picked up, but the husband insisted.
After not finding the cousin at the airport, the husband yelled at the wife the
entire ride back, pounding on the dashboard. On the highway, the husband pushed
the gears into neutral, causing the car to stall. Also, in June of 2000, the
husband became angry and pulled down and twisted a medicine rack, spilling
drugs all over the floor.
The events on August 14, 2000 compelled the wife to seek an order of protection in
Family Court occurred.7 The wife avers that she was on her bed
reading a hardcover book when the husband inquired about a photograph that he
took from her night table. In response, she asked him if he took the photograph
out of her drawer and the husband started to yell. The wife continued to read
her book, and the husband took the book out of her hand and started hitting her
feet with the book. He then grabbed her wrists, twisting them, and pushed her
down on the bed. The husband eventually left the room, screaming that he is
opening the door and she can leave. The wife testified that she was frightened.
He came back to the room with a full glass of water and proceeded to pour it
over the wife. When she went to the bathroom to get a towel and dry off the
husband entered the bathroom and threatened to carve certain letters into her
stomach, while holding a broken glass and hitting her with the palm of his hand
on her calf. The letters that the husband threatened to carve are an
abbreviation of their last name used by their health insurance provider on
their insurance cards. The wife testified that she believed her husband would
attempt to carry out his threat. She did not call the police because she was
afraid of being cornered, nor did she attempt to leave the apartment due to the
late hour. Eventually the husband calmed down and went to bed.8 The
wife attempted to go to sleep as well.
The husband conceded that he did take a photograph from his wife's night table
that evening, but that this was normal behavior. He testified that he became
angry when his wife questioned his actions. He later brought her a glass of
water to help her calm down, but became annoyed when she continued reading her
book. He testified that he regretted bringing her the water, and that he threw
it at her while she was on the bed. He further testified to taking the book she
was reading away from her and "with that soft-cover book, gone a couple of
times like this [indicating with his hand forward, making movements towards the
right quickly.]."
The wife also testified to the following incident:
"Q: Did anything occur on August 19, 2000?
A: Yes
Q: Can you tell the Court what, if anything, occurred on that date?
A: I went to the synagogue, and I didn't go to our regular one. We had a friend
who had a grandchild and they named the baby. So I went to that synagogue and
K. F. followed me there, and then, when we left or when the synagogue was over,
I left, and he followed me, and he wanted to talk to me about taking a walk or,
you know, have some kind of conversation, and I said, no, and I answered very
tersely. Then he started getting angry at me and said, you are not going to
talk to me, and he started screaming at me in the street, and then, he was just
bombarding me with screaming and yelling, and I walked away from him. And when
I got to the corner of Avenue I and Coney Island Avenue, he was so agitated and so angry, he took a garbage
can, picked it up, turned it around and tossed it in my direction. He then was
not through and he went across the street and did the same thing with the
garbage can across the street on the same side of Coney Island Avenue, but on the other side of Avenue I.
Q: As a result of these incidents, is there anything that you did?
A: Yes.
When he went to get the other can, he didn't see me. I was behind him. I ran up
the block and around the corner and ran away.
Q: Where did you go?
A: I think there was somebody at the baby naming that I knew, and I ran to her
house.
Q: After the weekend, did you take any action as a result of what happened?
A: Yes. I came into court, I think it was the 21st of August, and I asked the
Judge to give me a protection order and exclude him from the household.
Q: Where you granted a temporary order of protection by the court?
A: Yes, I was."
The wife described the marital apartment in a state of disarray.
The court observed that defendant is unable or unwilling to move on with his
life, organize his finances or surroundings. His conduct in refusing to follow
the direction of the court as it is related to trial discovery and preparation
and order of the trial were the original basis to seek the appointment of a
guardian. His insistence on lengthy monologues and expositions of the way he
was treated previously in the Family Court have long delayed this matter. He
claimed dyslexia and attention deficit disorder as a basis not to be able to go
forward. When the trial finally commenced he refused to cooperate with his own
lawyer and numerous delays and recesses were required. Even on the last day of
trial the husband was reluctant to enter the courtroom and conclude the trial.
The wife's descriptions of the husband's actions during the course of the
marriage are noteworthy; to wit she describes the residence in a state of
disarray, and her attempts to help organize the defendant as futile. The
incident where the medicine rack was thrown to the floor occurred when friends
came over to help organize the apartment. In describing the marital apartment
as a two bedroom, two bath apartment, plaintiff stated it would have been
spacious if things were put in their place. The wife testified, "if things
were not thrown on the floor, if things were hung up in the closet, if things
were just taken care, if things weren't constantly broken, if tables were not
busted, if chairs were not busted, if things were just taken care of." She
additionally testified:
"Around the same time, and also earlier, he took books my father had left
me a whole bunch of books. I put them in cartons. He wouldn't let me put up the
bookcases. They were leaning on the walls of my bedroom, and then, he decided that
he wanted to just look through all the cartons and he opened up all the cartons
and took all the books and threw them all over the floor. Of course I think I
have no idea how many cartons I had, but I must have, at least, had fifteen
(15) cartons of books."
Similarly, the husband's tax records for years were in a state of disarray. The
husband refused to comply with the order of this court and hire his own
forensic accountant even when monies were made available by the wife at the
suggestion of the court. When suggested that defendant move for an expert to
value the marital furnishings, since he repeatedly requested a division of the
furnishings, he failed to do so. Also, when given the opportunity by the Family
Court to retrieve his personal belongings by a date certain, he did not.
Rather, he insisted on lengthy unfettered access to the apartment.
Failure to Deliver a Get
At trial, on the question of removal of barriers (Domestic Relations Law 253),
the wife testified that in February 2001, she summoned the husband to a Beth
Din of America, a Jewish religious court, in order to obtain a Get,
or a Jewish divorce from him. He signed the summons acknowledging receipt, but
failed to appear. In June 2001 the wife again summoned the husband to the
religious court, this time the Beth Din of Elizabeth,
New Jersey. After the husband's failure to respond to repeated
summons, he was named a "mesarev" or refuser to appear before the
court. The husband summoned the wife to Beth Din Zedek of America-Ein Mosche at
the same time in June 2001, to which the wife responded that she had already
summoned him to Beth Din of Elizabeth, New Jersey which was handling the matter. The husband's failure
to appear before the Beth Din despite repeated summons and requests led the Beth
Din to issue a "seruv," or contempt citation against him for refusal
to appear. It was signed by a panel of rabbis in September 2002, including the
rabbi of the congregation which the parties attend. The wife testified that
because she was unable to obtain a Get, this led her to become an
"agunah" or a 'chained woman' within the Jewish faith. As an
"agunah" she is not permitted to remarry or date.
The parties Rabbi, when asked about efforts to have the husband appear before
the Rabbinical
Court
stated:
"Q. Can you tell us what efforts were made to get Mr. [F.] To appear
before the Beth Din?
A. Well, I know that I had a lengthy conversation with him where I tried many
methods of persuasion to explain to him that the court would be fair to him and
would listen to everything he had to say. He insisted only if they would have
different conditions and pre-conditions and first they would agree to talk
about this or that. I can't remember all the specifics. It was a very, very
difficult conversation.
Q. Do you recall when this conversation took place?
A. It had to be somewhere around the time this was going on. Somewhere between
the year 2000, 2001."
The wife requests that the husband be barred from receiving from equitable
distribution for his failure to give her a Get. She testified that until he
grants her a Get, she will be barred from remarriage, and the favorable
economic consequences that accompany marriage. Thus, she requests that unless
the husband gives her a Get, he should not be entitled to any marital assets or
maintenance.
The husband contends that the wife's position that the husband should be barred
from receiving any monies from equitable distribution should be disregarded. He
avers in his written summation that statistically, most women over 60 years of
age support themselves and it is unlikely that the wife herein will finds a man
to financially provide for her, given that she has been the primary wage earner
throughout their 30 year marriage.
Maintenance
The husband seeks an unspecified amount in maintenance. This demand is premised
upon a multitude of factors. The parties have been married for more than 30
years. The wife has been the primary wage earner throughout the duration of the
marriage, working for New
York State, wherein she also has a pension. The husband has been
unemployed for 20 years, utilizing his time to participate in various religious
and civil rights organizations. His only source of income is through his Social
Security benefits, and reparation payments from Austria which, until recently, he has refused to accept on
philosophical and moral grounds. Thus, based on the inequality of their
economic situations, the disparity in the parties ages and his needs, the
husband asks that the wife provide him financial support.
The wife opposes the husband's request for maintenance, as she claims that his
income exceeds his living expenses, that he has not been forthright in his
finances and her inability to remarry poses an unfair economic burden on her.
She notes her own compromised state of health and desire to retire. The wife
claims that she was the major supporter of the relationship because of the
husband's refusal to obtain gainful employment.
Equitable Distribution of the Marital Apartment in Midwood, Brooklyn,
New York
The marital apartment located in the Midwood section of Brooklyn,
New York, has been leased by the parties for many years. The
lease is in both their names, although the wife has been residing there by
herself since the temporary order of protection was issued on September 3, 2000. The husband was formally excluded from the residence
on January
19, 2001. The wife requests
that the lease be transferred to her name, individually. The husband requests
that the lease be transferred in his name, individually and that he be allowed
to live in the apartment.
Equitable Distribution of Retirement Benefits
The wife earned pension benefits as an employee of New York State. Pension Appraisers, Inc., the neutral appraiser
selected by this court pursuant to 22 NYCRR 202.16, produced an appraisal report which was
marked in evidence, without objection. The appraisal considered pension
earnings from the date the wife started the employment in June 1973, until the
date of the commencement of the action, October 1, 2003, valuing the pension at $783,881.06. The appraisal
also considered pension earnings from the date the wife started the employment,
June 28, 1973, until the date the husband was excluded by court order from the
residence, January 19, 2001, assigning a present day discounted value of
$502,910.57. The wife requests that the pension be valued up to the date of the
husband's exclusion from the marital residence. She also requests that if the
husband is to receive part of the pension, then the remainder be returned to
her upon the death of the husband. However, she further requests that if the
husband does not deliver her a Get, then he should not be entitled to any portion
of the pension, due to the negative economic repercussions she will face
pursuant to his failure to deliver the Get, stating that her inability to
remarry negatively impacts on her future financial circumstances (see Domestic
Relations Law 236 [B] ][5] [h]).
The husband requests that the pension be valued from when the wife began the
employment, June 28, 1973, until the commencement date of the proceeding,
October 1, 2003, and that he receive one-half of the amount included in the
plan in accordance with the formula enunciated in the seminal Court of Appeals
decision Majauskas v. Majauskas (61 N.Y.2d 481, 463 N.E.2d 15 [1984]).
Equitable Distribution of Bank Accounts
The parties have a joint savings account, under the control of the wife, with a
balance of $67,900.00 plus accumulated interest. Both the husband and wife
request that this amount be divided equally. However the wife, as with all
other marital assets, requests that the husband does not receive his share of
the savings account if he does not grant her a Get.
Furthermore, the wife avers that the husband's individual checking and savings
accounts, CD's, and other assets should be treated as marital assets, due to
his failure to produce an updated statement of net worth regarding these
amounts.
Equitable Distribution of Household Furnishings
Both the husband and wife are requesting various items of household furniture
and personal possessions to be distributed solely to themselves. While both
parties testified regarding some of the items being claimed, neither party
included the value of these items in their respective statements of net worth,
nor did either party hire an appraiser to value these assets.
Counsel Fees
The wife requests counsel fees based on the undue delay caused in the
proceeding by the husband. She argues that the husband's behavior resulted in a
court ordered Article 81 proceeding, as his behavior suggested that he may be in
need of a guardian. Furthermore, she asserts that further delay was caused by
the husband's behavior during trial, which resulted in cancellations in trial
dates, as well as unnecessarily lengthy examinations. The wife's counsel
requests fees in the sum of $24,010.00, and additionally requests leave to move
for further additional counsel fees incurred at trial including preparation of
the written summation. The husband also requests counsel fees in an
undetermined amount. The court heard testimony at trial as to the parties
expenditures of legal fees.
Discussion
Grounds
Pursuant to the order of the Honorable Betsy Barros, contained in her decision
granting summary judgment dated March 15, 2005, the wife shall submit, forthwith, on notice a
bifurcated judgment of divorce to Judge Barros predicated on her decision and
the establishment of the jurisdiction based upon the testimony in this trial.
Domestic Violence
As a general rule in New York State, marital fault, except in rare instances,
is not to be considered by the court for the purposes of equitably distributing
the marital assets (see O'Brien v. O'Brien, 66 N.Y.2d 576, 498 N.Y.S.2d 743 [1985];
see also Blickstein v. Blickstein, 99 A.D.2d 287, 472 N.Y.S.2d 110 [2 Dept
1984]).
The incidents of abuse as described in this case do not rise to the level of
"egregious conduct" that "shocks the conscience of the
court." Therefore, it would be inappropriate for this court, under
existing New York law, to consider these acts of violence when
equitably distributing the martial assets (see Weinstock v. Weinstock, 114 A.D.2d 450, 494 N.Y.S.2d 361 [2
Dept., 1985). In Blickstein, the Appellate Division explained that there
could be rare cases in which marital fault may play a role in equitable
distribution, but such cases "will involve situations in which the marital
misconduct is so egregious or uncivilized as to bespeak of a blatant disregard
of the marital relationship - misconduct that 'shocks the conscience' of the
court thereby compelling it to invoke its equitable power to do justice between
the parties." (see Blickstein v. Blickstein, 99 A.D.2d 287, supra; see also O'Brien v. O'Brien, 66 N.Y.2d 576, supra).
In the seminal case on egregious conduct, Havell v. Islam, (186 Misc.2d 726, 718 N.Y.S.2d 807, aff'd 301
A.D.2d 339 [2000]), the plaintiff wife produced evidence of years of
physical abuse by her husband, often resulting in serious injuries. This
pattern of abuse culminated in violence, after which the husband was sentenced
to be incarcerated for 8 1/3 years. In the court's trial opinion, the Hon.
Jacqueline Silbermann held that the husband's conduct was so outrageous as to
warrant depriving him of his share of the marital assets. This decision
expanded the "egregious conduct" standard by allowing for a pattern
of ongoing, serious domestic violence over several years to be considered in
equitable distribution.
In Kellerman v. Kellerman, (187 A.D.2d 906, 590 N.Y.S.2d 570 [3
Dept., 1992]), the Appellate Division overruled the Supreme Court's
decision to allow marital fault to be considered in equitable distribution. The
court noted that "[d]efendant's conduct, which consisted predominantly of
verbal harassment, threats and several acts of minor domestic violence, is in
our view not so outrageous as to shock the conscience of the court and to
justify his divestiture of certain of the parties' marital property."
" (Id. at 908; see also Stevens v. Stevens, 107 A.D.2d 987, 484 N.Y.S.2d 708 [holding
that the court could not consider marital fault for purposes of equitable
distribution where wife had a history of physically and verbally abusing
husband even having stabbed him with a kitchen knife]).
The element of serious egregious conduct is lacking in the case at bar. The
final order of protection issued in the Family Court against the husband which
was modified and affirmed by the Appellate Division in which the Appellate
Division described the incidents as "aggravating circumstances exist
including violent and harassing behavior by the husband towards the wife which
constitutes an immediate and ongoing danger to her." [citation omitted to
protect the identity of the parties]. Similar to Kellerman in which the court
found the husband's misconduct not to have risen to the level of egregiousness,
the husband's conduct in this case consisted of threats, harassment, and
certain acts of domestic violence. Furthermore, although this court heard the
wife's credible testimony that she believed her husband would attempt to carry
out his threat of carving certain letters into her stomach with broken glass,
fortunately, this did not occur. Thus, in accordance with the existing case law,
this court is constrained not to take the issue of domestic violence into
consideration for purposes of equitably distributing the marital assets (see
DRL 236 [B] [5] [d] [13]).
Refusal to Deliver a Get
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 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.". This section was added to the equitable
distribution statute in 1992 to authorize a judge in a matrimonial action to
consider the effects of a barrier to remarriage of one of the spouses when
determining equitable distribution. In the sponsoring Member's Memo,
Assemblyman Sheldon Silver stressed that a judge should be able to consider
"whether one party maintains a 'barrier to remarriage' in arriving at said
decision." [emphasis added] (Sponsor's Mem, Bill Jacket, L 1992, ch 415).
This section of the law codified the then seminal Supreme Court decision of
which characterized the husband's refusal to give a Get as another
"factor" under Domestic Relations Law 236 [B] [5] [d] [13] to take
into consideration when determining the distribution of assets between parties
(see Schwartz v. Schwartz, 153 Misc.2d 789, 583 N.Y.S.2d 716 [Rigler,
J., N.Y.Sup. Mar 11, 1992] [No. 14556/89, 2734]). In 1997 the Appellate
Division affirmed Judge Rigler's decision and held that the former husband
forfeited any right to distributive awards due to his initial refusal to give
his wife a Get (see Schwartz v. Schwartz, 235 A.D.2d 468, 652 N.Y.S.2d 616 [2 Dept.,
1997]).
In Pinto v. Pinto (260 A.D.2d 622, supra), the Appellate
Division held that granting the ex-wife one hundred percent of property listed
on the parties' statement of net worth in the event the ex-husband did not
deliver a Get within a specified time period was not an improvident exercise of
discretion. The court referred to Schwartz when considering the effect on
equitable distribution of a husband's refusal to deliver a Get (see Pinto v. Pinto, 260 A.D.2d supra at 622).9
In his testimony before this court on the issue of the husband's refusal to
give a Get to the wife, the Rabbi of the congregation that both the wife and
husband attended, who also served as a judge on the Rabbinical court, testified
that even if the wife were to obtain a civil divorce, the inability of the wife
to obtain a Get would act as a barrier to her remarriage. According to his
testimony, under Jewish law, a wife who is unable to receive a Get is called an
"agunah," or a chained woman because she is unable to marry another
man, yet at the same time is not in a real existing marriage. According to the
Rabbi, the effects of a barrier to remarriage are not restricted to the
inability of a spouse to remarry; this also limits her social life, because she
cannot relate to married couples, nor can she freely interact with single men.
She would be unable to go to "single's" events or date, and is
consequently unable to find another potential spouse and remarry. The Rabbi further
testified that according to Jewish history, "a woman who does not receive
a Get is considered almost as if she's in mortal danger of her life because she
has no ability to act in a normal fashion."
Additionally, the wife testified that because she is a practicing Orthodox Jew,
if she does not obtain a Get her community will not consider her a single
woman, placing her in a situation where she is still considered a married woman
but without any religious rights or benefits of a married person.
The credible testimony by the wife, and the two (2) rabbis, both of whom sit as
members of rabbinical courts, lead this court to find that the husband's
refusal to voluntarily give the wife a Get, thereby removing barriers to her
remarriage, is a basis to exercise its discretion under Domestic Relations Law
236 [B] [5] [h] to disproportionately distribute marital assets in the event
that a voluntary Get is not delivered.10
The husband's claim that the wife's attempts to obtain a Get or the courts'
authority to impose economic sanctions by way of limiting or denying equitable
distribution is coercive and, therefore, not available because a Get must be
voluntarily given are not persuasive. It must be stressed that the court is not
requiring the husband to deliver a Get, rather the court is economically
distributing property and determining maintenance in conformity with statutory
scheme established by the legislature in the Domestic Relations Law 236 B [5]
[h] which authorizes the court to "[i]n any decision made pursuant to this
subdivision the court shall, where appropriate, consider the effect of barrier
to remarriage as defined un subdivision six of section two hundred fifty-three
of this article, on the factors enumerated in paragraph d of this subdivision.".
This court is not and will not interfere with the religious questions. The
court first notes that "[i]t is without question that when courts must
touch upon questions of religious concerns, they may not consider religious
doctrine" (Presbyterian Church v. Hull Church, 393 US 440, 449 [1969]).
Further, the court recognizes that it is a basic tenet of constitutional law
that "'civil courts are forbidden from interfering in or determining
religious disputes. Such rulings violate the First Amendment because they
simultaneously establish one religious belief as correct . . . while
interfering with the free exercise of the opposing faction's beliefs'" (Lightman v. Flaum, 97 N.Y.2d 128, 137 [2001], cert denied 535 US
1096 [2002], quoting First Presbyt. Church v. United Presbyt. Church, 62 N.Y.2d 110,
116 [1984], cert denied 469 US 1037 [1984]).
In applying this doctrine to an issue similar to that now before the court,
i.e., the limitations of the secular courts as it concerns the issuance or
production of a religious divorce, it has been held that:
"This Court cannot preclude defendant from acting within the religious
realm in seeking to obtain a religious dissolution of the parties' marriage. To
do so would be an entanglement of the secular courts in the religious practice
of defendant. Clearly this is improper and would be a violation of the
Establishment Clause of the First Amendment to the United States
Constitution."
(Moskowitz v. Moskowitz, NYLJ, June 10, 1997, p 27, col 6 [Rigler, J.]).
Clearly, the converse is true; this court cannot compel defendant to act within
the religious realm and provide a religious dissolution of the parties marriage
inasmuch as he is not the plaintiff herein nor has he filed a counterclaim for
divorce.
The inquiry of this court is limited to the authority given the court to
consider the consequences of the failure to remove a barrier to remarriage
pursuant to Domestic Relations Law section 236 B [5] [h]. The court is bound to
accept the statute as written by the legislature. There is no challenge to the
statute asserted nor can the court, or a court on its own initiative, raise
such an issue (see Becher v. Becher, 245 A.D.2d 408, 667 N.Y.S.2d 50 [2 Dept.,1997]).
Maintenance
It is well settled that the amount and duration of maintenance is committed to
the sound discretion of the trial court (see e.g. Schultz v. Schultz, 309 A.D.2d 849, 766 N.Y.S.2d 76 [2 Dept.,
2003]; Wilson v. Wilson, 308 A.D.2d 583, 764 N.Y.S.2d 828 [2 Dept.,
2003]; Buchsbaum v. Buchsbaum, 292 A.D.2d 553, 740 N.Y.S.2d 359 [2
Dept., 2002]; Murray v. Murray, 269 A.D.2d 433, 703 N.Y.S.2d 402 [2 Dept.,
2000]), and that every case must be determined on its own unique facts (see
e.g. Wortman v. Wortman, 11 A.D.3d 604, 783 N.Y.S.2d 631[2 Dept.,
2004]; Mazzone v. Mazzone, 290 A.D.2d 495, 736 N.Y.S.2d 683 [2 Dept.,
2002]). In awarding maintenance, "the court must consider 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]" (Chalif v. Chalif, 298 A.D.2d 348, 751 N.Y.S.2d 197 [2 Dept.,
2002]), which factors include "'the standard of living of the parties
during the marriage, the income and property of the parties, the distribution
of marital property, the duration of the marriage, the health of the parties,
the present and future earning capacity of both parties, the ability of the
party seeking maintenance to become self-supporting, and the reduced or lost
lifetime earning capacity of the party seeking maintenance.'" (Kret v. Kret, 222 A.D.2d 412, 634 N.Y.S.2d 719 [2 Dept., 1995],
citing Domestic Relations Law 236 [B] [6] [a]). "[O]ne of the purposes of
an award of maintenance is to encourage economic independence." Hildreth-Henry v. Henry, 27 A.D.3d 419, 811 N.Y.S.2d 110 [2
Dept., 2006]; Benzaken v. Benzaken, 21 A.D.3d 391, 799 N.Y.S.2d 579 [2 Dept.,
2005]; Ventimiglia v. Ventimiglia, 307 A.D.2d 993, 763 N.Y.S.2d 486 [2
Dept., 2003]; Unterreiner v. Unterreiner, 288 A.D.2d 463, 733 N.Y.S.2d 239 [2
Dept., 2001].
In this case, the marriage is one of long duration, the parties are ages 61 and
80, and both parties have ongoing health concerns. The wife has lung cancer, asthma,
hypertension, acid reflux, and breathing problems, and the husband suffers from
emphysema, arthritis, gout, gastroenterology problems and attention deficiency
disorder. The wife is employed on a full time basis with New York State. The husband is currently unemployed. He held various
forms of employment during the first 10 years of the marriage, but has spent
the rest of his time volunteering with civil rights organizations. The husband
has exhibited no intention to seek employment, nor does this court expect him
to do so at his age and health.
The wife asserts that the husband has not been forthcoming regarding his
statement of net worth. The statement provided by him is dated June 29, 2005. The husband has not complied with requests from the
wife to reaffirm his original statement of net worth. Furthermore, he has not
complied with a court order for an updated statement of net worth, even though
the wife provided a check (pursuant to this court's request) at the time the
husband was pro se, to pay for him to obtain the services of an accountant to
prepare same. Even when he was represented by counsel, his counsel could not
get him to provide an updated of statement of net worth or cooperate with
discovery. Therefore, the wife avers that the court is able to make negative
inference as to the husband's finances.
Throughout the duration of this marriage, the wife has been both the sole
homemaker and primary wage earner. There are no children of the marriage and
the husband has not significantly contributed financially to this marriage, nor
has he meaningfully supported his wife in such a way to further her career.
Furthermore, he stopped working and instead spent his time volunteering,
leaving the burden entirely on the wife to financially provide for them, while,
she claims, still neglecting domestic responsibilities, such as housecleaning,
food shopping, meal preparation, and filing of taxes11. Also, due to
his failure to provide an updated statement of net worth, the evidence as to
his current finances is sparse.
However, the husband has limited earning potential, primarily due to his age
and poor health. While the wife has her own health concerns and is nearing the
age of retirement, she is currently employed and her income far exceeds that of
the husband. There is also a significant age disparity between the parties. She
has sufficient income, at this time, and property to maintain her standard of
living, while still being able to provide for the reasonable needs of the
husband. Thus, under the extant circumstances, the husband is awarded
non-durational maintenance from the wife (see Marino v. Marino, 52 Ad3d 585, 860 NYS2d 170 [2 Dept., 2008];
see also Brooks v. Brooks, 55 A.D.3d 520, 867 N.Y.S.2d 451 [2 Dept., 2008]).
Under the circumstances based on the parties' marital standard of living, their
respective disparity in income and ages, the husband's lack of employable
skills, present and future earnings capacity of the wife as compared to the
husband, property, length of the marriage, physical infirmities, and the
husband's limited expenses, an award of maintenance is warranted. Applying
these statutory considerations to the facts of this case, the court awards the
husband non-durational taxable maintenance in the amount of $400.00 each month.
It is clear to this court that even if the husband were to comply with the
discovery demands, simply based upon his prior and present lifestyle and the
disparity in income and the parties ages, an award of non-durational
maintenance is warranted. This court notes that had the husband engaged in full
and timely disclosure, the award of maintenance very well may have been
greater.
Domestic Relation Law 236 B [6] [d] in referring to maintenance 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 (a) of this subdivision.". Accordingly,
based upon the facts presented to this court, the award of maintenance must be
contingent upon the husband voluntarily giving the wife a Get within 45 days of
entry of the judgment of divorce. It would be unjust and inappropriate to have
the wife pay spousal support for the husband's benefit yet she is still
"chained" to him.
The maintenance payments shall terminate in the event of the husband's
remarriage, the death of either party, or failure of the husband to voluntarily
give the wife a Get with 45 days of notice of entry of the judgment of divorce.
Said payment shall be mailed to the husband's residence retroactive to the date
of first application (see Dooley v. Dooley, 128 A.D.2d 669 [2 Dept., 1987]). If the
husband refuses to voluntarily give and deliver a Get to the wife within 45
days then the wife shall not be obligated to pay maintenance to the husband.
Health Benefits
The husband is in poor health and has been unemployed for a large majority of
the parties' long term marriage. Therefore, it is unlikely he is going to
produce any income, other than that which he receives through Social Security
and reparation payments, anytime in the near future. He is currently eligible
for Medicare benefits, and may also be entitled to Medicaid benefits. The
husband testified to his utilization of out-of-network providers.
Pursuant to Domestic Relations Law 177, the parties are on notice that they may
no longer be allowed to receive health coverage under the former spouse's health
insurance plan upon entry of the judgment of divorce. The husband may be
entitled to health insurance through a COBRA option, or otherwise may be
required to secure his own health insurance. There was no testimony at trial as
to the cost of COBRA benefits and therefore, this court cannot award consider
an award of payment by the wife of this expense. Accordingly, the parties shall
cooperate in a timely manner and complete the necessary forms to apply for
COBRA benefits if the husband so desires. He shall request the COBRA forms
within 20 days so that he may obtain separate coverage, if he so desires. The
court cannot award a party to pay the other party's unreimbursed medical
expenses (see Bains v. Bains, 308 A.D.2d 557, 308 A.D.2d 557, 764 N.Y.S.2d 721
[2 Dept., 2003] "[j]udgments of divorce which direct a parent to pay
the other parent's unreimbursed health care expenses are in the nature of
open-ended obligations which this Court has consistently disfavored . . .
[o]rdinary or routine unreimbursed medical expenses should be considered as
included in a maintenance award, and extraordinary unreimbursed medical
expenses cannot be awarded prospectively in unfixed amounts' (Gulotta v. Gulotta, 215 A.D.2d 724, 725 [1995]; Zabin v. Zabin, 176 A.D.2d 262, 264 [1991]"). There was
no testimony proffered at trial by the husband as to the cost of COBRA benefits
notwithstanding the many months he had to prepare for trial.
Equitable Distribution
In recognizing a marriage as an economic partnership, the Domestic Relations
Law mandates that the equitable distribution of marital assets be based on the
circumstances of the particular case, and directs the trial court to consider a
number of statutory factors listed in Domestic Relations Law 236 [B] [5] [d]12
(see generally Holterman v. Holterman, 3 NY3d 1, 7-8 [2004]).
"Equitable distribution presents matters of fact to be resolved by the
trial court, and its distribution of the parties' marital property should not
be disturbed unless it can be shown that the court improvidently exercised its
discretion in so doing'" (Johnson v. Johnson, 261 A.D.2d 439, 440, 690 N.Y.S.2d 92 [2
Dept., 1999], quoting Oster v. Goldberg, 226 A.D.2d 515, 640 N.Y.S.2d 814[2 Dept.,
1996], appeal denied 88 N.Y.2d 811 [1996]).
Marital v. Separate Property
Domestic Relations Law 236 [B] [1] [c] defines marital property as "all
property acquired by either or both spouses during the marriage and before . . .
the commencement of a matrimonial action, regardless of the form in which title
is held" (see Seidman v. Seidman, 226 A.D.2d 1011, 1012, 641 N.Y.S.2d 431
[1996]). Separate property, on the other hand, is defined, in part, as
"property acquired before marriage or property acquired by bequest,
devise, or descent, or gift from a party other than the spouse" (DRL 236
[B] [1] [d] [1]). It must also be recognized, however, that the term
"marital property" is to be broadly construed, while the phrase
"separate property" is to be narrowly construed (see e.g. Judson v. Judson, 255 A.D.2d 656, 679 N.Y.S.2d 465 [3 Dept.,
1998], citing Price v. Price, 69 N.Y.2d 8, 511 N.Y.S.2d 219 [1986]). Hence,
the law favors the inclusion of property within the marital estate (compare DRL
236 [B] [1] [c] and [d]; see Burns v. Burns, 84 N.Y.2d 369, 618 N.Y.S.2d 761 [1994]; Majauskas v. Majauskas, 61 N.Y.2d 481, 474 N.Y.S.2d 699 [1984]),
and, accordingly, "the party seeking to establish that a particular item
is indeed separate property bears the burden of proof" (LeRoy v. LeRoy, 274 A.D.2d 362, 712 N.Y.S.2d 33 [2000],
citing Seidman, 226 A.D.2d 1011, 641 N.Y.S.2d 431 [3 Dept., 1996] Heine v. Heine, 176 A.D.2d 77, 580 N.Y.S.2d 231 [1 Dept., 1992],
lv denied 80 N.Y.2d 753 [1992]). When a party co-mingles separate funds
with marital funds and assets (see Hartog v. Hartog, 85 N.Y.2d 36, 623 N.Y.S. 2d 537 [1995]; Lynch v. King, 284 A.D.2d 309, 725 N.Y.S.2d 391 [2 Dept., 2001]),
it is that party's burden to trace the source of the funds with sufficient
particularity to rebut the presumption that they were marital property (see Massimi v. Massimi, 35 A.D.3d 400, 825 N.Y.S.2d 262 [2 Dept.,
2006]; see also Bennett v. Bennett, 13 A.D.3d 1080, 790 N.Y.S.2d 334 [4 Dept.,
2004]).
Valuing an Asset
The party seeking the distribution of an asset has the burden of establishing
its value (see e.g. Vainchenker v. Vainchenker, 242 A.D.2d 620, 662 N.Y.S.2d 545 [2
Dept., 1997]; Amisson v. Amisson, 251 A.D.2d 274, 672 N.Y.S.2d 801 [2 Dept.,
1998]; Harris v. Harris, 242 A.D.2d 558, 662 N.Y.S.2d 532 [2 Dept.,
1997]; Iwahara v. Iwahara, 226 A.D.2d 346, 640 N.Y.S.2d 217 [2 Dept.,
1996]; Kaye v. Kaye, 192 A.D.2d 365, 596 N.Y.S.2d 33[1 Dept., 1993];
Vogel v. Vogel, 156 A.D.2d 671, 549 N.Y.S.2d 438 [2 Dept., 1989]).
Equitable Distribution of the "Marital Apartment", Brooklyn, New York
The marital apartment is not marital property subject to equitable
distribution, as it is rental property and not owned by the parties (see Fedoff v. Feoff, 41 A.D.3d 114, 835 N.Y.S.2d 895 [1 Dept., 2007]
[where there is no expectation that a rental apartment will be converted into a
condominium or cooperative, then it is not distributable property] see also Pulitzer v. Pulitzer, 134 A.D.2d 84, 523 N.Y.S.2d 508 [1 Dept.,
1988]). However, based on the particular facts of this case, it is this
court's determination that the wife should have sole possession (Martinucci v. Martinucci, 288 A.D.2d 444, 737 N.Y.S.2d 371 [2
Dept.,2001] citing Goldberg v. Goldberg, 172 A.D.2d 316, 568 N.Y.S.2d 394 [1 Dept.,
1991] [[W]e find no abuse of discretion by the trial court in determining
that the plaintiff was entitled . . . to exclusive possession of the marital
rental apartment at Tudor City Place and the rights thereto]). The husbands'
exclusion due to his violent acts as well as the entry of divorce based upon
those acts would warrant that the wife shall continue to reside in the
apartment. The wife has been the sole occupant of the apartment since 2001,
eight years, and it is her income that has been paying the rent. This court
recognizes that the husband did not voluntarily vacate the marital residence,
rather he was excluded from the home based upon an order of protection and acts
of violence. However, to uproot the wife from the apartment would be
inappropriate. Additionally, the husband, with the help of a social services
agency has established his own apartment. It should also be noted that the
agency also provides the husband with household help once a week.
Equitable Distribution of Retirement Benefits
The wife acquired pension benefits during her continued full time employment
with the State of New
York. Pursuant
to a court appointed neutral expert, the appraised value of the pension, from June 28,1973, the start of employment, up until October 1, 2003, the date of commencement is $783,881.06. The wife
requests that the pension be appraised from June 28, 1973, when she began her employment, until January 19, 2001, when the husband was formally excluded from the
residence, which is valued at $502, 910. 57. Pursuant to this valuation, she
offers to divide the amount in half, so that she retains a 50 percent interest
in the pension, and her husband assumes 50 percent interest, conditioned on the
husband giving her a Get. However, if he fails to deliver a Get, the wife asks
that she retain 100 percent of the pension (see Pinto v. Pinto 260 A.D.2d 622, supra [held that granting the
ex-wife 100 percent of property listed on the parties' statement of net worth
in the event the ex-husband did not deliver a Get within a specified time
period was not an improvident exercise of discretion]). The husband requests 50
percent of the retirement benefits from the date of the marriage (or in the
case the date of employment) to the date of commencement of this action.
It is well established that a spouse's pension constitutes marital property for
the amounts accumulated during the marriage and prior to the commencement of
the divorce action (see Majouskas v. Majouskas, 61 N.Y. 2d 481, [1984] supra). The
court finds no authority, statute, or case law, nor does the wife provide
precedent, to establish her request that the date of separation should be
utilized as the calculation date when valuing a pension plan. On the contrary,
the Second Department has held, "[i]t is well established that a spouse's
pension constitutes marital property only to the extent that the corpus of the
fund accumulates during the marriage and prior to the commencement of the
divorce action (see Domestic Relations Law §236 [B] [1] [c]; Majauskas v. Majauskas, 61 NY2d 481; Marcus v. Marcus, supra,
at 138; Damiano v. Damiano, 94 AD2d 132)" (Cohn v. Cohn, 155 A.D.2d 412, 547 N.Y.S.2d 85 [2 Dept., 1989]).
Thus, the pension shall be calculated pursuant to Majauskas v. Majauskas (61 N.Y.2d 481, supra) using the date
of June
28, 1973, the start of the
wife's employment during the marriage, until October 1, 2003, the date of
commencement of this divorce proceeding. The fact that the wife delayed in
commencing the action is not a basis to use the parties' date of separation as
the appropriate date for valuation.
In determining the equitable disposition of property, this court must also
consider the "direct or indirect contribution made in the acquisition of
such marital property by the party not having title, including contributions
and services as a spouse, parent, wage earner and homemaker, and to the career
or career potential of the other party." (see Majouskas v. Majouskas, 61 NY 2d 481, supra [1984], citing
Domestic Relations Law 236 [B] [5] [d] [1] [6]). Both parties have ongoing
health concerns, and the wife is nearing the age of retirement. Based on these
factors, as well as the parties' respective age, future economic circumstances,
health, standard of living and the disparity of the non-economic contributions
to the marriage as described herein and this court's order of maintenance
payment to the husband by the wife, the husband should receive 50 percent of
the wife's pension, as valued from the date of commencement of this action (see
Arvantides v. Arvantides, 64 N.Y.2d 1033, 478 N.E.2d 199 [1985]).
This provision shall be effectuated only in the event that the husband
voluntarily secures a Get for the wife with 45 days of the service of a copy of
the judgment with notice of entry (see Pinto v. Pinto 260 A.D.2d 622, supra).
The wife further requests in her statement of proposed disposition and written
summation that she be permitted to take a "Pop-Up" option when she
retires. The wife avers that this option would provide that any pension
payments due to the husband would revert back to the wife upon the husband's
death. Inasmuch as neither side provided testimony or proof as to selection of
retirement options the court includes no mandate related thereto except as to
the requirement for a Qualified Domestic Relations Order in accordance with Majouskas v. Majouskas (61 NY 2d 481, supra [1984]).
Equitable Distribution of Bank Accounts
The wife included the Safra account which is the parties' joint savings in her
statement of net worth. The value of the marital portion of this asset is
$67,900.00 plus interest. Both parties agree that this asset should be shared
equally. However the wife requests that the husband not receive these amounts
if he does not give her a Get. The wife additionally asks that if she is
entitled to attorney fees, then that amount be deducted from the husband's
share in the Safra account. The husband requests this account be shared. This
court directs that the parties share this account equally, together with
accumulated interest in accordance with the parties concession at trial that
this account should be shared equally (see Evans v. Evans N.Y.S.2d, 2008 WL 5263831, supra). However, if
the husband fails to voluntarily deliver a Get within 45 days from entry of the
judgment of divorce, the wife, consistent with this decision, shall own the
account in its entirety (see DRL 236 B [5] [h]; see also Pinto v. Pinto, 260 A.D.2d 622, supra).
The wife concedes that the husband maintains an account at Washington Mutual
Bank for the benefit of his nephew and the monies are the nephew's monies, and
therefore, based upon this concession, the funds are not subject to equitable
distribution.
Additionally, the wife asks the court to make a negative inference regarding
the husband's personal checking and savings accounts, CD's and consider these
amounts to be marital assets. As previously stated this court's knowledge of the
husband's finances is lacking due to his failure to submit an updated statement
of net worth. Where one party fails to comply with court ordered demands, the
court may use its discretion in determining equitable distribution, and fashion
a remedy based on the particular situations of the parties involved, and on
overriding concerns of fairness and equity (see Saleh v. Saleh, 40 A.D.3d 617, 618, 836 N.Y.S. 2d 201, 202 [2
Dept., 2007]). Moreover, where one party fails to provide information
pursuant to discovery, then the court may use its discretion and hold what the
other party says about the withheld information as true (see Miceli v. Miceli, 233 A.D.2d 372, 373, 650 N.Y.S. 2d 241, 242 [2
Dept., 1996]).
The husband's failure to cooperate could potentially result in a negative
inference being drawn by the court and an award favorable to the wife. Here,
the wife requests a negative inference to be drawn as it relates to the
husband's assets based upon his failure to comply. However, this court finds
the husband's testimony credible as to the bank accounts that he paid
$12,500.00 to his former attorney utilizing lump sum payments from monies
received from Austria, and $15,000.00 to pay his present counsel through a
credit card advance. He further testified that he paid his present counsel a
total of $30,000.00 inclusive of the Article 81 proceeding. It appears that the
reparation monies were received and the debt incurred after the commencement of
this action. It also appears from the husband's testimony that the remaining
cash in his accounts were from credit card advances that were taken after the
filing of the summons in this action. As such, the husband shall maintain
exclusive rights to said accounts and shall be responsible for the debt. If the
court were to equitably distribute this asset, the court would also have to
equitably distribute the debt.
The monies derived from the war reparations are clearly separate property. They
were received by the husband, post commencement for horrific historical events
which occurred prior to the parties marriage. They clearly represent monies for
pain and suffering and reimbursement for separate property which may have been
lost or seized during the Nazi occupation (see DRL 236 B [1] [d]). It is well
established in the context compensation for personal injuries are separate
property (see DRL 236 B [1] [d] [2]). Similarly if the payments are for
property wrongfully seized as an act of war, prior to the marriage, they were
for separate property.
Equitable Distribution of Household Furnishings
The wife avers that she placed the husband's personal belongings aside, and has
made them readily available. She also packed some boxes with clothing belonging
to the husband, and has additionally set aside three (3) chairs, two (2)
mirrors, two (2) slabs of marble, an antique desk, and some books, all which
belong to him. The husband contends that he never had the opportunity to sort
through their belongings and determine what items personally belong to him. He
testified at trial as to several items that he wishes to retain, including
books, bookcases, antiques, and various pieces of furniture, and entered
photographs of these items into discovery. The court sustained the wife's
objections to the admittance of photographs of the books in the bookcase,
because the titles of the books being claimed by the husband were not legible
and were in Hebrew, and therefore, it was unclear to the court as to which
items he was specifically claiming. The court could not at trial allow the
husband to testify as to the name and history of each book in the parties
collection. The wife indicated, through counsel at trial, that if ordered, she
would give to the husband's his separate property and books once he secured a
Get. The husband objected to the wife deciding what would be considered
separate property and was steadfast in his position that he needed an
opportunity to go through the entire apartment by himself for lengthy periods
of time to organize and inventory the contents. The husband has not availed
himself of the rights to have an appraiser value and catalogue the contents
and, clearly, this court cannot sanction the husband's return to the residence
in consideration of the circumstances of this case including the history of
domestic violence. However, it is also clear to this court that the wife has no
right to hold the husband separate property. Accordingly, within 30 days of
notice of entry of the judgment of divorce, the husband shall notify the wife
of his intent to send an individual other than himself to retrieve his separate
property. The items shall be retrieved no later than 45 days from the entry of
the judgment of divorce. The court notes that the Family Court order excluding
him from the apartment did allow him time to remove his separate property but
the husband thought it was not enough time so he refused to avail himself of
that opportunity. If he believes the items returned do not constitute all of
his separate property, he may make a post judgment application to the court
within 30 days after receipt to appoint an expert at his own cost to inventory
the balance of the apartment and make an appropriate application related
thereto. The balance of the contents of the apartment shall be the property of
the wife.
Counsel Fees
Domestic Relations Law section 237 (a) permits the court to direct either
spouse to pay counsel fees to the other "to enable that spouse to carry on
or defend the action or proceeding as, in the court's discretion, justice
requires, having regard to the circumstances of the case and of the respective
parties." The award of counsel and accountant's fees is controlled by the
equities and circumstances of each particular case. (see e.g. Levy v. Levy, 44 A.D.3d 398, 771 N.Y.S.2d 386, [2 Dept., 2004],
citing DRL 237[a], [d]; see also DeCabrera v. DeCabrera-Rosete, 70 N.Y.2d 879, 881, 524 N.Y.S.2d
176 [1987]; Kearns v. Kearns, 270 A.D.2d 392, 393, 704 N.Y.S.2d 627 [2 Dept.,
2000], appeal denied 95 N.Y.2d 760 [2000]).
"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 A.D.2d 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 N.Y.2d 187, 689 N.Y.S.2d 8 [1999]).
Unlike a pendente lite award of counsel fees, a final order of counsel fees
"[i]n the absence of . . . a stipulation, an evidentiary hearing is
required so that the court may test the claims" of the attorney seeking
counsel fees regarding the extent and value of the services rendered (Kelly v. Kelly, 223 A.D.2d 625, 636 N.Y.S.2d 840 [2 Dept., 1996];
see also Nee v. Nee, 240 A.D.2d 478, 479, 658 N.Y.S.2d 440 [2 Dept., 1997];
Burns v. Burns, 193 A.D.2d 1104, 1105, 598 N.Y.S.2d 888 [4 Dept.,
1993]; see also Marocco v. Marocco, 53 A.D.2d 707, 708, 383 N.Y.S.2d 939 [2
Dept., 1976]; Woessner v. Woessner, 108 A.D.2d 812, 813, 485 N.Y.S.2d 325 [2
Dept., 1985]).
When there is no stipulation allowing the court to base counsel fees on
affirmations of the parties, the evidentiary hearing is necessary to
"determine (1) an appropriate counsel fee for the . . . attorney and (2)
the relative financial circumstances of the parties, so as to permit a proper
allocation of the fee" (Hansen v. Hansen, 86 A.D.2d 859, 859, 447 N.Y.S.2d 323 [2 Dept.,
1982]) and it provides the party opposing the award a crucial opportunity
to "test in a meaningful way the value and time of the claimed services of
counsel." (Maroney v. Maroney, 208 AD2d 915, 916, 617 NYS2d 874 [2 Dept.,
1994]). Additionally, the evidentiary hearing provides a safeguard against
due process intrusions by ensuring that a party will not be deprived of
property without notice and without an opportunity to be heard (Maroney v. Maroney, 208 A.D.2d 915, supra).
The court must consider, inter alia, the following factors: (1) the nature and
extent of the services rendered; (2) the actual time spent; (3) the nature of
the issues involved; (4) the professional standing of counsel, including
background and experience; and (5) the financial circumstances of the parties
(see Thomas v. Thomas, 221 AD2d 621; Willis v. Willis, 149 AD2d 584; Silver v. Silver, 63 AD2d 1017, supra). Here, there is a
clear disparity in income.
The wife asks, in her summation, for the court to award her $24,010.00 in
counsel fees, plus additional fees for the cost of trial and summation which
she has not yet calculated, based on the undue delay caused by the husband. At
trial, the bills she received and checks she paid documenting her attorney's
fees were marked into evidence.
Based upon the husband's actions, this court partially grants the wife's
request for attorney fees. Clearly, there was an undue delay caused by the
husband's actions rendering the requirement that the wife's counsel had to
provide his client with more hours of legal service than would have ordinarily
been necessary. The court will not punish defendant for not settling the
matter; he has a right to his day in court (see Comstock v. Comstock, 1 AD3d 307, 1 A.D.3d 307, 766 N.Y.S.2d 220
[2 Dept., 2003]) [" . . . an award of an attorney's fee is designed to
redress the economic disparity between spouses. It is not intended to address a
party's decision to proceed to trial rather than agree to a settlement (see O'Shea v. O'Shea, 93 NY2d 187 (1999)"]). However, as
detailed in this opinion, the husband's absolute failure to recognize that in
order to conclude this matter he had to conduct discovery, provide disclosure,
cooperate with his lawyer and follow the directions of the court. Instead, the
husband engaged in lengthy delays and an inability to move forward with the
trial. He claimed, in statements that went on for great lengths, that he could
not organize his thoughts or adequately present his position because of his
emotional and mental state. While this court has no authority under the Domestic
Relation Law to award fees related to the Article 81 proceeding the delay in
the matrimonial proceeding, and the amount of monies expended by the wife,
because of the husband's refusal to follow court directions, refusal to even
state his name on the record without being sworn or affirmed during the initial
trial and his obstructionist conduct throughout warrant him paying $5,000.00 of
the wife's counsel fees (see Sevdinoglou v. Sevdinoglou, 40 A.D.3d 959, 836 N.Y.S.2d 680 [2
Dept., 2007] award of counsel fees should be based upon, inter alia, the
relative financial circumstances of the parties, the relative merits of their
positions, and the tactics of a party in unnecessarily prolonging the
litigation"]; see also Wenner v. Wenner, 56 A.D.3d 766, 869 N.Y.S.2d 563 [2 Dept.,2008]).
The payment shall be made from his share of the marital bank account. The
payment of the fees for dilatory conduct does not include any fees related to
the Article 81 proceeding (see Holbrook v. Holbrook, 226 A.D.2d 831, 640 N.Y.S.2d 641, [3
Dept.,1996]; see also Cinnamond v. Cinnamond, 203 A.D.2d 229, 610 N.Y.S.2d 276 [2
Dept., 1994]; Erdheim v. Erdheim, 119 A.D.2d 623, 501 N.Y.S.2d 77 [2
Dept.,1986]). The court is only awarding the limited amount of $5,000.00
based upon the husband's limited earning ability. The court, thought, cannot
ignore the fact that the wife's counsel fees were made unnecessarily higher due
to the husband's actions.
The husband requests an uncalculated amount for attorney fees. While he did
testify regarding how much he has incurred in counsel fees in the past, he
failed to submitt at trial any written documentation in the form of either
receipts or billing statements in support of these claims. Without such
documentation, this court cannot award him attorney fees due to a failure of
proof [see Weinschneider v. Weinschneider, 50 A.D.3d 1128, 857 N.Y.S.2d 613
[2 Dept.,2008] ["The defendant was not entitled to an award of an
attorney's fee as she failed to submit adequate documentation of fees paid in
connection with an earlier cross motion"]; Gahagan v. Gahagan, 51 A.D.3d 863, 859 N.Y.S.2d 218 [2 Dept.,
2008] ["[A]n attorney's failure to provide written, itemized bills at
least every 60 days pursuant to 22 NYCRR 1400.2 will also preclude collection of a fee. The
failure to abide by these rules, promulgated to address abuses in the practice
of matrimonial law and to protect the public, will result in preclusion from
recovering such legal fees.]).
Conclusion
The court in adjudging the credibility of the parties must note that the wife
has credibly testified as to the years of and level of difficulty that she
endured in staying with the husband for 30 years of this marriage.
While it appears she was willing to endure the years of disorganization and her
husband's lack of gainful employment and she recognized the age disparity
between them, his increasingly abusive behavior resulting in domestic violence
directed towards her set in motion a chain of events culminating in the wife
seeking relief in the Family Court and obtaining an order of protection.
The husband has adamantly refused to move on with his life or allow the
litigation to end. He spent hours in lengthy testimony before the court
directed against the Family Court Judge, who conducted the trial, the judge's
law assistant and the wife's counsel. He fails to recognize that his appeal to
the Appellate Division Second Department of that order resulted in a finding of
"aggravating circumstances" yet he continues to rail against the
Family Court decision. At the initial trial his refusal, while he was pro se,
to follow directions of the court, his refusal to orderly allow the trial to
proceed with the plaintiff going forward first, his insistence on constant repetition
of past events in the Family Court and ad hominem attacks on his wife's lawyer
and one of his own prior attorneys resulted in this court halting that trial
and appointing a guardian ad litem pursuant to Article 12 of the C.P.L.R. At
the trial the husband insisted, after numerous adjournments, that he still
needed more time to prepare. Even after the Article 81 proceeding was dismissed
the husband refused to move the matrimonial trial toward conclusion causing
even further adjournments, innumerous recesses during the trial to speak with
his lawyer and he failed to complete discovery or submit an updated affidavit
of net worth. Even on the last day of trial the husband initially refused to
come in to the courtroom and only entered when the court made it clear the
trial would come to an end without him.
The court recognizes that the husband demands that the process proceed under
his control and that he truly believes that he is the victim and that he has
been wronged. Notwithstanding the husband's apologies for his actions relating
to domestic violence on the record while minimizing them, it is clear to this
court that it would be dangerous for the wife to continue to live with the
husband given his increasingly out of control behavior. It is also clear to the
court that the husband does not want to grasp the serious consequences and
effect of his actions against the wife. This coupled with her own fragile state
of health would make the continuation of a marital relationship impossible if
not unlikely to succeed. It is time for him to recognize that there is life
after divorce and that he is a cause of the divorce and not a victim of it.
The court recognizes through his many presentations that the husband is very
proud of his contributions to society and the civil rights movement and the
sacrifices that he has made both as a victim of the holocaust and in
championing many social, political and religious causes. Yet the delay and this
lengthy process must come to an end. He can no longer claim his medical condition
warrant him being granted more time or rely on his lengthy speeches to prevent
him from concluding this matter. It must be noted that he was successful in
defending the Article 81 proceeding and as such he was deemed to be able to
manage his own affairs.
Hopefully he will recognize the protests his lawyer mentioned at trial in his
own religious community is caused by his adamant refusal to deliver a Get. He
must recognize that the disintegration of the marriage was caused by him, the
protests in the community are caused by him, the finding of the Family Court
and the modification by the Appellate Division was caused by him, the refusal
to previously inventory or remove his property was his own doing and his
refusal to cooperate with his own lawyer in preparing affidavits of net worth
and organizing his financial affairs has a detrimental affect on the
presentation of his case.
The wife deserves the right to move on with her life, free from the control of
the husband. She has endured long enough and the court urges the husband to
accept this decision and it's consequences, cooperate in the voluntary granting
of a Get and closing this chapter in their lives; to do otherwise would be
unjust and unfair. This is a man whom has spent his early life living as a
victim of a highly unjust and horrific period of the 20th century. He then
dedicated his life to eliminate racial and ethnic prejudices, was jailed as
part of the civil rights movement in the south, and was active in many social
and religious causes. He is now in the 80th year of his life causing another to
suffer by keeping her "chained" to him; it is a disservice to all
that he professes to have stood for in life. All that K. F. insisted on during
this litigation was that he be allowed to tell his story-he has had his day in
court and the court clearly heard him.
Judgment of divorce is granted in accordance with the decision of the Hon.
Betsy Barros. Equitable distribution shall be effectuated and the payment of
maintenance and counsel fees as is directed in this trial decision.
The Family Court shall have concurrent jurisdiction with regard to maintenance.
The wife is authorized to resume or continue to use her maiden name if she so
chooses.
The parties are directed to settle on notice separate Findings of Fact and
Conclusions of Law and Bifurcated Judgment of Divorce, and a Qualified Domestic
Relations Order.
1. This matter was before two prior justices of this court who no longer sit in
the matrimonial term and two other justices who presided over a companion
Article 81 proceeding.
2. Throughout this opinion the parties' last names have been omitted because of
references to an Article 81 Proceeding, including quoted materials.
3. During the course of this litigation the husband, when he was pro se, became
increasingly agitated and claimed that his learning disabilities prevented him
from concentrating or organizing his thoughts. At the commencement of a trial
he refused to take his seat, demanding of the court that he be immediately
sworn in. Also, the court received a letter dated August 3, 2005, from a social services organization, "Self
Help" indicating their concern about his abilities and the need for a
guardian.
"Self Help Community Services, Inc., has provided and continues to provide
social work services through its Nazi Victim Services program for Mr. [F.]. In
court on July 13, 2005 you asked why 'we have not applied to be _________Article 81 Guardian.' While in rare cases our agency does petition for
appointment of an Article 81 guardian for some of our clients, our limited
resources and other considerations prevent us from doing so in this case.
However, just as this court raised the question of whether _____________ needs a
guardian generally, we do feel that especially given the complexity of his
divorce action he is not able to adequately represent himself. Our agency does
not represent its clients in divorce matters. We lack the resources to serve as
guardian ad litem. To protect ___________ rights, we ask the court to appoint an
experienced matrimonial attorney as his counsel or, if the court finds that he
qualifies under C.P.L.R. Section 1201, as his Article 12 Guardian Ad Litem,
with payment coming from the marital assets."
Pursuant to C.P.L.R. 1201 the court appointed _____________ Esq. as the
guardian ad litem. The Article 12 guardian moved for the appointment of a
guardian pursuant to Article 81 of the Mental Hygiene Law. Thereafter, the
husband retained counsel who opposed the application and has represented him in
this action as well. The matrimonial action was stayed pending the outcome of
the Article 81 proceeding. That application was before the Hon. Ariel Belen and
upon his appointment to the Appellate Division it was transferred to the Hon.
David Schmidt. The former guardian ad litem reported to the court that on December 14,
2007, Judge Schmidt denied
the application with the right to restore upon a letter.
4. The husband's attorney, at trial, indicated on the record that client did
not cooperate in providing her the necessary information to prepare a statement
of net worth despite having made (4) four separate attempts to do so with him.
5. While the transcript indicates $4,160.00, the court trial notes indicate
$460.00, which is also this court's recollection.
6. The husband has indicated in the past his refusal to accept reparations on
moral grounds from Austria from the period of Nazi occupation, and now has
indicated that he has reluctantly accepted the monies.
7. The events which occurred in the Family Court have been a source of much of
the defendant's anger during the course of the litigation.
8. The wife testified that at various times the husband would corner her in the
apartment.
9. DRL 253 [6] defines barrier to remarriage:
"As used in the sworn statements prescribed by this section "barrier
to remarriage" includes, without limitation, any religious or
conscientious restraint or inhibition, of which the party required to make the
verified statement is aware, that is imposed on a party to a marriage, under
the principles held by the clergyman or minister who has solemnized the
marriage, by reason of the other party's commission or withholding of any
voluntary act. Nothing in this section shall be construed to require any party
to consult with any clergyman or minister to determine whether there exists any
such religious or conscientious restraint or inhibition. It shall not be deemed
a "barrier to remarriage" within the meaning of this section if the
restraint or inhibition cannot be removed by the party's voluntary act. Nor
shall it be deemed a "barrier to remarriage" if the party must incur
expenses in connection with removal of the restraint or inhibition and the
other party refuses to provide reasonable reimbursement for such expenses.
"All steps solely within his or her power" shall not be construed to
include application to a marriage tribunal or other similar organization or
agency of a religious denomination which has authority to annul or dissolve a
marriage under the rules of such denomination."
10. During the husband's counsel's cross examination of the Rabbi-witness, the
following colloquy took place:
"Q. Rabbi, is a Get something that is supposed to be voluntarily given?
A. Yes. It is supposed to be voluntarily given.
Q. So when people are demonstrating in front of other people's houses to
embarrass them into giving a Get, I don't really know, is that appropriate?
A. Yes, that is appropriate. First of all, there are certain extreme
circumstances when a Get can be coerced physically. We don't do that today
anymore, because that's not the law of the land, but in ancient times, there
were times when men could actually be coerced to give a Get. They could
literally be beaten. The rational for that, it sounds a little bit strange to
you, Mishna explains that, basically, deep down, everybody really wants to do
the right thing, but sometimes you just have to beat it out of them to get them
to do the right thing when their evil inclinations get in the way. I know it
would be hard for you to understand. That's the exception rather than the rule.
That is not normally done. There has to be egregious grounds for that to be
done. Normally, less serious method, such as embarrassment and shame are used
that were already used in the medieval times by the great authority. Actually,
the grandson of the man who I mentioned before, Rashi, his grandson, Rabbi Tom
Jacob, he's known as Rabbenu Tam. He had written a whole series of things that
could be done. Communal pressure could be something. Coercion is physical force.
Sometimes monetary threats to take some money away from someone. Giving someone
something or making their life a little bit uncomfortable for them is not
viewed as coercion in Jewish law."
11. There was uncontradicted testimony that for years the husband could not
organize his records to be able to file tax returns.
12. As is relevant here, DRL 236 [B] [5] [d] provides that;
"In determining an equitable disposition of property under paragraph c,
the court shall consider:
"(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) any award of maintenance under subdivision six of this part;
"(6) 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;
"(7) the liquid or non-liquid character of all marital property;
"(8) the probable future financial circumstances of each party;
"(9) 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;
"(10) the tax consequences to each party;
"(11) the wasteful dissipation of assets by either spouse;
"(12) any transfer or encumbrance made in contemplation of a matrimonial
action without fair consideration;
"(13) any other factor which the court shall expressly find to be just and
proper."
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