Opinion
No. 5* * * */* *.
06-16-2017
D.D., Plaintiff, v. A.D., Defendant.
Procedural History
Plaintiff D.D. (hereinafter "Wife" or "Mother") commenced this action for divorce against Defendant A.D. (hereinafter "Husband" or "Father") by Summons and Verified Complaint filed on March 21, 2013. Husband filed a Verified Answer with Counterclaims on April 30, 2013. A Preliminary Conference was held on June 11, 2013. By Order dated June 11, 2013, the parties agreed that Plaintiff Wife would be granted a divorce on the grounds that the parties' marriage had broken down irretrievably for a period of at least six months pursuant to Domestic Relations Law § 170(7). The issuance of a Judgment of Divorce was held in abeyance until all ancillary issues were resolved on consent or otherwise adjudicated by this Court.
The parties were unable to settle a single substantive issue causing this case to become one of the most protracted and contentious proceedings ever tried by this Part. No less than forty-six (46) interim pre trial orders were issued in this case. These Orders include a lengthy Pendente Lite Order dated December 2, 2013. Pursuant to the terms of that Order, Husband was ordered to pay $2,837 per month in temporary maintenance and $2,000 per month in temporary child support. The child support award represented a substantial downward deviation from the CSSA guidelines in Husband's favor. The imputation was based on income from "A. D. Electric" an electrical contracting business started and prospered by the parties during the marriage. Wife lost her $75,000 annual salary from the business when Husband fired her at or around the time this action was commenced. By Order dated April 29, 2014, Husband was ordered to pay $12,000 in counsel fees to Wife's attorney because this Court determined he was the more monied spouse. Husband failed to comply with this Order causing the liquidation and distribution of his retirement account in an attempt to avoid a contempt finding against him.
Throughout this litigation, Husband has consistently failed to comply with many court orders. Among other court ordered obligations, Husband has failed to pay maintenance, counsel fees, his share of Dr. Favaro's fee (Forensic Evaluator) and failed to purchase trial transcripts. Husband has paid court ordered child support payments, but has paid nothing toward court ordered support arrears. In short, he has paid what he wants to pay based on his perception of how it will affect his quest for custody of the subject children. Husband refuses to comply with any Orders that he believes will help Wife or sustain this litigation. Husband's selective compliance with court orders has necessitated the filing by Wife of multiple enforcement and contempt motions against (See e.g. Mot Seq. Nos. 005,006, 007 & 008). Many of these applications were disposed of prior to trial (See e.g., SFO's dated 11/19/14; 11/24/14 & 6/16/14).
While current law no longer requires that "alternative remedies" be exhausted before a finding of contempt is made , this was not the law at the time Wife's motions were filed. Accordingly, this Court went to great lengths to find alternative remedies to a finding of contempt against Husband and a potential period of incarceration based on his undisputed refusal to pay spousal maintenance. These Orders included appointing Wife as a limited temporary receiver for the purpose of selling their Amboy Road real property which was sold and the net proceeds placed in attorney escrow (See SFOs 11/24/14 & 12/3/15). In addition to equitable distribution claims, this money is also the subject of a related proceeding "J. D. v. A.D. and D.D. " Index No. * * * * */2014. This breach of contract action seeking repayment of $280,000.00 plus interest, was commenced by Wife's father against both parties. Wife acknowledged the debt to her father but Husband refused to repay any of it unless Wife gave up custody of the subject children in this related divorce case. After a full trial, and for the reasons explained in this Court's Decision dated February 27, 2017, this Court found that the funds used to purchase the Amboy Road property were a loan from Wife's father, rather than a gift, as claimed by Husband. See J.D. v. A.D., 2017 N.Y. Slip Op 50261(U) (Sup.Ct.Rich.Cty.2017). Judicial Notice is taken of that Decision and subsequent Judgment.
See DRL § 245 as amended, effective September 29, 2016.
After the Amboy Road Decision, and as another alternative remedy to contempt, the Court authorized Wife to modify the mortgage related to the former marital home where she has resided with the subject children throughout this proceeding. This home, located at * * * Drumgoole Road West Staten Island, New York, had fallen behind on the mortgage and was in danger of foreclosure due to Husband's failure to pay court ordered maintenance. To ensure the continued housing of the children in the face of Husband's willful marital waste, and after giving Husband numerous opportunities to comply with this Court's Orders, Wife was granted authority to sign a loan modification in both parties' names as attorney in fact for Husband. See Weinstock v. Weinstock, 8 Misc.3d 221, 797 N.Y.S.2d 246 (Sup.Ct. Nassau Ct.2005) ; See also, Rosenshein v. Rosenshien, 211 A.D.2d 456, 620 N.Y.S.2d 383 (1st Dept.1995). Wife modified the loan to a monthly payment not dependent on court ordered maintenance. Her efforts in this regard have warded off foreclosure and stopped the potential eviction of the children from their home.
Similarly, Wife testified at trial that she had received a "turn off notice" from Con Edison that threatened to shut off the electrical service to the former marital home for non-payment. Wife was unable to make the payments because Husband was not making his maintenance payments. Husband was ordered to make an immediate payment, which he did, in the amount of $343. In response to the deteriorating conditions of the case, the Court directed that the next two trial dates, May 8, 2015 and May 28, 2015 be set aside for the purposes of having a hearing on Wife's contempt motions. Both parties submitted post hearing briefs in addition to post-trial summations. This Court's ruling on Wife's contempt application is set forth below.
The Trial
The trial lasted seventeen days and resulted in over 2402 transcript pages. The issues addressed at trial were custody and parental access, family offense, contempt, equitable distribution, spousal maintenance, child support and counsel fees. Throughout the course of this litigation, Wife was represented by Michael Coscia, Esquire and his associates. The subject children were represented by Rosa Pannitto, Esquire. Defendant Husband was represented by a number of attorneys during this action. Husband was initially represented by Brian Perskin, Esquire until he was relieved with Husband's consent on or about February 10, 2015. Maria Novak, Esquire and Louis Kleiger, Esquire represented Defendant until they were relieved on their motion by Short Form Order dated October 7, 2015. Thereafter, Husband represented himself until on or around December 11, 2015 when his current attorney, Dahlia Zaza, Esq. filed a notice of appearance.
The trial, including the contempt hearing, took place on the following dates 1/30/15, 2/10/15, 3/06/15, 4/17/15, 5/08/15, 5/28/15, 6/10/15, 6/17/15, 7/31/15, 9/01/15, 9/02/15, 11/13/15, 12/18/15, 3/02/16, 3/04/16, 6/09/16, 6/10/16.
The retention of Ms. Zaza was a point of controversy and media attention. Husband admits that, in an alleged act of desperation, he posted hundreds of flyers seeking to trade his electrical services for legal services on telephone poles surrounding courthouses throughout New York City, including this courthouse. These flyers and an accompanying social media campaign caused Husband to gain immediate notoriety. He was interviewed by main-stream media outlets with his image and statements appearing on radio, television, internet programs, and in newspapers. Husband used these interviews to foster a self serving and inaccurate portrayal of how he was being treated by Wife, her lawyers, his prior lawyers, and the justice system as a whole. He also chose to opine about the reasons this marriage failed including making disparaging statements about Wife and detailing her many alleged "affairs". His salacious account of their relationship led to the media's quick unmasking of Wife and the subject children. This caused additional court appearances and motion practice by the attorney for the children and Wife's lawyers. By Short Form Order dated November 13, 2015, this Court prohibited further interviews by any party with media outlets about any aspect of this case. Ms. Zaza has remained as Husband's attorney in this case and in the related contract action.
At trial, Plaintiff testified on her own behalf and called Dr. Peter Favaro (court appointed forensic evaluator), J.D. (her father), and Defendant Husband as witnesses. She submitted voluminous documentary evidence (Pl.Exs.1–85). Husband testified on his own behalf and called A. D., Sr (his father) and Plaintiff Wife as witnesses. He also submitted voluminous documentary evidence (Def.Exs.A–KKK). Counsel for both parties submitted questions for individual in camera examinations of the two subject children which was held by the Court on September 12, 2016. At the conclusion of the in camera examination, the record was sealed. Summations were received from all counsel on or before February 26, 2017.
General Factual Findings
There are two children of this marriage, N.D. (age 12) and A. D., Jr. (age 10). Neither child presents with any special needs. At trial, both parties attempted to show that they were the more fit custodial parent for the subject children. To this end, both parties testified to a litany of events that occurred during the course of their relationship and throughout this litigation. Many of these incidents were not critical to this Court's determination of custody and parental access. Rather than dignify each and every incident between the parties, this Court discusses herein only those significant findings of fact that weighed most heavily in this Decision.
Plaintiff Wife
Plaintiff Wife was born on September * *, 1976. Wife earned a Bachelor's Degree in Psychology with a Minor in Education. In 2011, Wife attained a Real Estate License. During the course of this litigation, Wife returned to school to complete her Master's Degree in Psychology, which she was awarded in January of 2016. She works part time as a therapist and counselor for two separate entities as she works to build her own practice. She also continues to work part time as a real estate agent.
The parties were married on March * *, 2004. At or around the time they were married, Wife worked as an elementary school teacher for gifted and talented students at a public school in Brooklyn. Wife stopped working as a teacher in June of 2004 just prior to the birth of the subject child N. D.. At that time, Husband was working for Local 3 as an unlicensed electrician. He obtained an electrician's license for New York City and Suffolk County in 2005 and for New Jersey in 2008. The parties agreed Wife would not return to teaching. Rather, she would raise the children and help Husband open his own business doing electrical contracting work.
Wife was N. D.'s primary caretaker from birth. While both parties acknowledge that they occasionally hired household help, Wife performed most of the household and child rearing duties throughout the marriage until commencement of this divorce action. Wife credibly testified that after this action was commenced, Husband immediately became more involved in the subject children's lives in an apparent attempt to strengthen his position in this case. During the marriage, Husband worked six days a week at his fulltime job and on side jobs leaving the house 6:00 A.M. most mornings and not returning home until around 9:00 P.M.
The parties' second child, A.D., was born in August of 2006. In addition to taking care of the children, Wife was working long hours for Husband's electrical business, A.D. Electrical Contracting Corp ("A.D.Electric"). This business was started by the parties and grew very successful during the marriage. Wife was the office manager whose duties included supervising the other office employees, coordinating estimates and scheduling of jobs, ordering supplies, billing, writing and depositing checks, maintaining the corporate books and records, performing all significant banking functions, and interfacing with accountants and attorneys. She had full signatory authority on the business accounts.
While Wife managed the office, Husband worked in the field giving estimates, supervising jobs, performing electrical work, marketing with prospective clients and doing everything possible to grow this business. The parties had a mutual goal of building A.D. Electric into a "premier" electrical business which would enjoy a significant share of the market for high end commercial and residential electrical jobs throughout New York City. Their objective was largely achieved due to their mutual hard work and commitment to growth. Within two years the business was earning more than $500,000 annually. At trial, Husband testified that Wife "controlled the money" and that he had no say over what happened to any of it. This Court finds more credible Wife's assertion that, while she had significant banking responsibilities, Husband was the final arbiter of all business decisions.
Sadly, as the parties' business flourished, their marriage withered. Plaintiff testified that, as time went on, and particularly after the birth of A.D. Jr., Husband's behavior became increasingly erratic, controlling, angry and abusive. He was excessively jealous, demanding to know where she was and who she was with at all times. Husband would get "insane" if he could not reach her by phone or if his text messages were not immediately answered. Husband would text or call her over thirty times a day and berate her when he reached her. His demeanor was loud, nasty, aggressive and vulgar. Wife testified in detail to a number of incidents where Husband lost his temper and went on a shouting tirade. This occurred over the phone, and in person, frequently in the presence of their young children.
After each incident, Husband apologized and promised to control his anger so these incidents would not keep occurring. At Wife's insistence, the parties went for marriage counseling. However, Husband refused to return after the clinician suggested he think about taking mood stabilizing medication. On another occasion, Husband voluntarily attended an anger management program but refused to return after two sessions claiming he was "not like those people". Their marriage continued to deteriorate with the parties fighting numerous times per week often in front of the children. Indeed, it got so bad that the children asked their parents not to fight for a couple days as a gift to them.
In 2011, the parties decided that it would be beneficial to them and the business if Wife secured a real estate license. This was because they were looking for a piece of property to run the business out of, and if Wife was a licensed real estate professional, then part of the commission would get kicked back to them. The business had grown too large to be managed from the basement of their home. Also, the parties were paying for storage space in Brooklyn, an expense that could be eliminated if they acquired their own space. In 2012, with money borrowed from Wife's father, the parties purchased the Amboy Road property. Husband began renovating these premises but stopped after this divorce was commenced. Husband's failure to maintain the property caused multiple fines and liens to be placed on the property until it was eventually sold.
In March of 2013, Wife filed for divorce. Despite her repeated requests, Husband refused to leave the marital home. Around this time, Wife became romantically involved with another man. Husband learned of this relationship from a friend who had encountered Wife in New Jersey with her boyfriend. Husband tracked Wife to a hotel in New Jersey. Upon arrival, Husband ordered Wife to come down to the parking lot where he was waiting. Fearful of Husband's reaction to finding her there, Wife never came down to meet Husband. In retaliation for her infidelity Husband took Wife's car from the parking lot and stranded her in New Jersey.
Fearful of Husband's reaction to learning of her infidelity, Wife obtained an Order of Protection from the Family Court the next day. In response, Husband told Wife that she would never get custody of the children from the Court. He threatened to inject her with heroin in her sleep and claim that she was a drug addict and unfit mother. Husband was removed from the house shortly after the issuance of the Order. Notwithstanding the Temporary Order of Protection, Husband stalked Wife on a regular basis. During the early stages of this divorce, Husband would frequently text Wife, reporting where she was, who she was with, and what movie she was watching while in her home. Husband's stalking behavior, despite the Temporary Order of Protection, made Wife feel scared, anxious and worried about her physical safety.
Defendant Husband
Defendant Husband was born on November * *, 1972. He is a high school graduate and attended one semester of college. Contrary to the alcohol and drug laden environment he alleges Wife grew up in, Husband claims that he was raised in a "traditional family." His father was a New York City Police Officer (retiring as a Detective) and his mother was a hair dresser. While he does not regret his own childhood, Husband desires a "better life" for his own children, namely for them to go to college and be well off financially.
In late 1990 or early 1991, when Defendant was around 20 years old, he was arrested for the attempted murder of a fellow college student. While all the details of the incident were not placed into the trial record, Husband admits that he was on line to register for a course at a local college when he became involved in an argument with another student. Husband credibly testified that he got angry, pulled out a knife, and stabbed the student. Husband claimed it was act of self defense, but plead guilty anyway. Due to his age, Husband was permitted to plead guilty as a youthful offender. He was sentenced to sixteen months to four years in jail. He was released from prison in November 1992 or 1993. He was enrolled in a work release program for a period of time after his release from prison.
Husband's family was friendly with Wife's family for a long time. Husband knew Wife well and often spent time with her when they were young. Husband described Wife's childhood home as "chaotic" with no rules, drug and alcohol use, and little structure. He claims that Wife wanted a different life for herself one day. Husband hoped they could build a new life together.
Husband testified that, in the beginning of their marriage, the parties were on the same page in terms of their love and commitment to each other and their plans to build a family and a successful business together. The parties had their "ups and downs" but they were generally happy. According to Husband, Wife began to change after A.D. Jr. was born. She became obsessed with Tony Robbins, a motivational speaker, to the point where she compelled Husband to attend a marriage encounter with one of the group's surrogates. The amount of money spent by Wife to attend motivational seminars was a significant point of contention between the parties.
During this time, Husband claims Wife began neglecting her obligations to the marriage, the house, the business and the children. She lost a lot of weight and got cosmetic surgery. She stopped cooking, locked him out of the marital bedroom, began drinking wine excessively and would leave the house to go see men after the children were asleep. Husband claimed that Wife's abrupt change in behavior left him, the children, the home, and the business in a frustrated and confused state. At trial, Husband spent much time focusing on their sex life, particularly testifying about restrictions he claimed Wife placed on sex after the marriage began to sour. This testimony was largely irrelevant and sensational except where indicated below with respect to a lack of consent. Wife contends that Husband and his attorney focused on sex at trial to make this litigation as humiliating and degrading as possible for her.
Husband admits that the end of their marriage was a time of great conflict in the house. The parties fought constantly often in the presence of the children. Husband testified that he believed this activity to be "normal" for a married couple. Husband admits that the parties had distinct styles of conflict resolution. Wife was passive aggressive. Husband was loud, overtly hostile, and angry. Wife credibly testified that the majority of conflicts between the parties were caused by Husband's volatile moods, his impatience and his angry bullying behavior.
Husband testified that, even after this action started, Wife continued to neglect the children in favor of spending time with her boyfriend and pursuing her own new found interests. While the children wore expensive designer clothes during the marriage, Husband complained that they now present for visitation in dirty, urine smelling, ill-fitting, cheap clothing. Husband acknowledges that Wife suffered a "financial change" that may have led to this decreased standard of living, but denies that it is attributable in any way to his protracted failure to pay court ordered support.
The Subject Children
While the parties blame each other for the demise of the marriage, they agree that towards the end of the time they lived together, their home was a traumatic and toxic environment for the children. The effects of the traumatic memories can still be seen today. Notwithstanding the many years that have passed since the parties resided together, both children present as nervous and anxious. Each child suffers from various physical manifestations of stress from eating disorders to inability to properly control bowel movements. Both children have been in and out of therapy throughout the course of this litigation. Even the children's access to mental health services, which was intended to help them, has been traumatic and chaotic. They have been dismissed from multiple therapists due to Husband's confrontations with the providers who he perceives were sympathetic to Wife.
The children testified separately before this Court in camera. While their testimony has been sealed, suffice to say here, both children love their parents. However, they are both deeply wounded and traumatized by the erratic, violent fighting they have witnessed and the ongoing hostility between their parents.
Decision after Trial
Custody and Parental Access
When determining an appropriate custodial arrangement, the primary concern for the Court is the best interests of the children. See Matter of Islam v. Lee, 115 A.D.3d 952, 982 N.Y.S.2d 772 (2d Dept.2014). There is "no prima facie right to custody of the child in either parent." DRL § 70[a] ; DRL § 240[1][a]. When determining custody, the Court must consider the "totality of the circumstances" including the relative fitness of the parties and quality of their home environments. See Matter of Blanc v. Larcher, 11 A.D.3d 458, 782 N.Y.S.2d 360 (2d Dept.2004). Factors to be considered include "the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent." See Salvatore v. Salvatore, 68 A.D.3d 966, 893 N.Y.S.2d 63 (2d Dept.2009) ; See also, McGovern v. Lynch, 62 A.D.3d 712, 879 N.Y.S.2d 490 (2d Dept.2009). The preferences of the subject children, while not determinative, are another factor to be considered by the Court. See Matter of Xiomara M. v. Robert M., 102 A.D.3d 581, 958 N.Y.S.2d 391 (1stDept.2013). The weight to be afforded to each of the various factors is within the discretion of the trial court and requires an evaluation of the testimony, character and sincerity of all of the parties involved. See Bourne v. Bristow, 66 A.D.3d 621, 886 N.Y.S.2d 502 (2d Dept.2009).
Despite Husband's repeated requests for "joint custody," a final award of joint custody is not a viable option where, as here, the relationship between the parties is too volatile and acrimonious to support such an arrangement. See Bliss on behalf of Ach v. Ach, 56 N.Y.2d 995, 453 N.Y.S.2d 633, 439 N.E.2d 349 (1982). Joint custody is inappropriate where the parties are antagonistic towards one another and have demonstrated an inability to cooperate and co-parent on matters concerning the child. See Matter of Lawrence v. Davidson, 109 A.D.3d 826, 971 N.Y.S.2d 62 (2d Dept.2013). The presence of domestic violence is another factor which will preclude an award of joint custody. See West v. Vanderhorst, 92 A.D.3d 615, 939 N.Y.S.2d 378 (1st Dept.2012). Accordingly, the Court is faced with the difficult determination of which parent is the more suitable custodial resource for N.D. and A.D. Jr. In making this determination, the Court's primary consideration, amongst the other factors indicated below, is which parent presents as better able to foster the relationship between the subject children and the other parent. See Matter of Feliccia v. Spahn, 108 A.D.3d 702, 968 N.Y.S.2d 893 (2d Dept.2013).
Both parents here are physically and mentally capable of caring for these children on a basic level. Neither parent has been the subject of any child protective proceedings, or credible allegations of abuse or neglect.Neither parent has a physical or mental limitation that would render them unfit solely on that basis. While Wife has considerable reservations regarding Husband's treatment of her, and the effect that treatment has had on the children, she has no concerns about Husband's general ability to parent. In contrast, Husband spent a considerable amount of trial time disparaging Wife's fitness to parent. Husband went so fas as to testify that, if Wife could have given up the children without "stigma", she would have. (Tr. 11/13/15 pg. 137). The Court does not credit this outrageous statement.
Husband acknowledges that Wife had been the children's primary caretaker, but claims Wife neglected the children after the marriage soured. Among other things, Husband alleged that Wife stopped cleaning the house, started drinking excessive amounts of wine, and stayed out late with friends on weekends. Husband offered pictures into evidence depicting the "messy condition" of the house with partially empty wine bottles and glasses left around the home. Husband admitted that he could have cleaned up the alleged mess if he believed it was harming the children, but instead he chose to photograph the condition to use as evidence at trial. When questioned about photographs of dishes left in the sink, Husband explained that, when the marriage was good, he would have washed them. However, since the marriage had broken down, he took a picture of the unwashed dishes leaving the sink as he had found it. (Tr. 11/13/15 pg.132).
The Court does not credit Husband's claim that Wife "became" an unfit parent when she decided to leave this marriage. Rather, the Court finds that both parties are fit to care for their children during their own parenting time. Thus, the question presented to this Court is not if either parent is "unfit to parent," but rather which parent presents as "more fit to parent." See Matter of Florio v. Niven, 123 A.D.3d 708, 997 N.Y.S.2d 728 (2d Dept.2014). In making this determination, this Court has considered the totality of the evidence in the trial record, with specific consideration of the factors discussed below.
a. Primary Caretaker.
Wife credibly testified that she has always been the primary caretaker of the children. Notably, this is a role that she managed to satisfy while also helping Husband manage the marital business. While the parties hired household help during various periods, Wife consistently maintained her role as the children's primary caretaker. Husband claims he played a larger role in the care of the children than Wife gives him credit for at trial. This may be true, but is of little consequence here as the parties agree that Husband worked long hours outside the home leaving Wife responsible for the needs of the children.
Both parties have been afforded equivalent time with the subject children during this proceeding. However, despite having close to equal parenting time, Wife has continued to be the children's primary caretaker. She has also been primarily responsible for assisting the children with their homework, and taking care of their medical and emotional needs. She has also gone to extraordinary lengths to maintain the children in the former marital home notwithstanding Husband's brazen and willful refusal to pay spousal support. In the face of turn off notices and unnecessarily prolonged litigation, Wife managed to return to school to achieve another degree. All this was accomplished by Wife while remaining the primary caretaker of the children.
To be fair, since the parties have separated Husband has been much more active in the daily care of the children. Regardless of whether this occurred out of necessity, or litigation strategy as alleged by Wife, Husband's increased involvement in the care of the children during his parenting time is a positive change. While Wife contends Husband is a "good" father and is loved by the children, the Court finds that he has never been their primary caretaker. See Matter of Gregory D. v. Athena Q., 149 A.D.3d 542, 51 N.Y.S.3d 516, 2017 N.Y. Slip Op 02929 (1st Dept.2017) ; See also, Matter of Kougne T. v. Mamadou D., 133 A.D.3d 455, 18 N.Y.S.3d 857 (1st Dept.2015). This factor has been given some weight by the Court in its custodial determination.
While Wife spent little time disparaging Father's parenting, Husband attempted to prove that Wife neglected the children towards the end of their marriage. More credible is Wife's claim that as Husband's resentment for her increased, his opinion of her parenting decreased without a rational basis. While Husband views Wife's infidelity as the sole cause of the demise of the marriage, the evidence at trial suggests that many factors led to the parties' separation. Whether it was Wife's infidelity or Husband's abusive behavior towards Wife, the evidence suggests that both parents contributed to the breakdown of this relationship and the emotional toll this divorce has had on the children. Evidence of infidelity is generally of very little evidentiary value in a custody proceeding absent direct harm to the children. See Matter of Lawson v. Lawson, 111 A.D.3d 1393, 974 N.Y.S.2d 854 (4th Dept.2013). To this point, Husband woefully failed to prove by any standard of proof that the children suffered any harm proximately caused by Wife's infidelity. Moroever, his claim rings hollow because, as discussed below, Husband has fathered a child with another woman during this very litigation. When all the accusatory and irrelevant smoke is cast aside, of more concern to this Court is the behavior of each parent toward each other and the children after their separation, as this conduct has been particularly harmful to the emotional well being of the children.
b. Safeguarding the Emotional Health of the Children
The respective ability of each parent to safeguard the emotional and mental health of the subject children is of "paramount concern in a custody determination" and has been given significant weight in this case. See Matter of Perez v. Brown, 150 A.D.3d 1011, 2017 N.Y. Slip Op 03956 (2d Dept.2017) ; See also Matter of Michael B. (Lillian B.), 145 AD3d 425 (1st Dept.2016). An excellent indicator of a parent's concern for the emotional well being of a child is, in this Court's view, their treatment of the other parent in the presence of the children and the image they portray of the other parent to the children. In short, the parents cannot go back in time and change the traumatic scenes witnessed by their children while the family resided together. However, a parent can, and must, stop the hate after separation. Sadly, this has not occurred here. The consequences to the children's mental health here has been significant.
Throughout trial, Wife credibly testified to various incidents during the marriage wherein Husband was verbally abusive, hostile, angry and inappropriate in the presence of the children. Husband would fly into fits of rage which included degrading Wife with a tirade of profanity in front of the children. In some instances, the fighting would get so severe that these young children would intervene to stop the argument. In one such incident, upon learning of Wife's intention to file for divorce in or around January of 2013, Husband told the children that "mommy is filing for divorce and throwing me out, she does not love us anymore." (Tr. 1/30/15 pg. 123). This incident was so traumatic that N.D. hid under the dining room table crying while A.D. Jr. hit his mother. This incident is one of many instances in which the children were deliberately dragged into an argument between their parents. While Husband did not deny fighting with Wife in the presence of the children, he sought to minimize his behavior and shift the blame to her. Husband's refusal to acknowledge the effect his anger and lack of impulse control has had on the subject children is deeply troubling.
In another telling choice made by Husband, he got a permanent tattoo on his arm of a dead "family tree" being stabbed by Wife's favorite flower and surrounded by tombstones. He then made the poor choice of showing it to his daughter whileimplying that it was a depiction of how Mommy destroyed their family. (Tr. 3/6/16 pgs. 94–96). Husband may purchase whatever body art he chooses. However, his decision to reveal it to his children, and suggest its meaning, is strong evidence of Husband's inability to place the emotional needs of the children before his own anger for their Mother.
Even after the parties separated, and after the commencement of this action, Husband has continued to manifest an inability to control his temper. For example, on or about May 14, 2015, Husband asked the children if their mother was using an electronic stimulation collar on the family dog to decrease barking. Husband ordered the children to let the dog out of the house. When one of the children released the dog into the yard where Husband could see it, Husband flew into a rage and tried to remove the collar. Notwithstanding the Temporary Order of Protection in place at that time, he stood outside of the marital home screaming. When Wife came out to see what the commotion was about, the parties got into a "screaming match" about the dog. The children went crying and running into the house. While Wife admitted she yelled back at Husband, Husband instigated this scene.
Inside the house, the children were frightened and began crying and arguing with each other. Each child went from blaming themselves to blaming each other to blaming their mother for causing their father's actions. It is interesting to note that here again, the only participant the children failed to blame (perhaps because they were too fearful of the consequence) was the person who actually caused this outrageous scene, namely their father. It is apparent that since the inception of this case, the subject children have been desperately trying to walk a thin line between both of their parents. This is an unfair and unhealthy position for these children as they try to navigate and rationalize Husband's explosive temper and his pathological hatred for their mother.
At trial, Husband denied Wife's account of the May 14th "dog incident" as grossly exaggerated and claimed that he was simply inquiring about the safety of the dog. He claimed that Wife abused the dog because she did not like its frequent barking. Husband did not explain why, if he had this animal abuse concern, he did not make an immediate application for the dog to reside with him. In any event, Husband's version of this event was not credible. Husband further wasted an inordinate amount of time at trial analyzing a recording that Wife made of her conversation with the children after the incident. Regardless of Wife's motivation for making it, this sad recording, in which the children are heard tearfully apologizing and blaming each other for letting the dog out, is compelling real time proof of the trauma sustained by these children. Husband correctly points out that Wife did not have to record her alleged consoling of these children. However, the fact remains that Husband should not have caused this incident in the first place. Put simply, Wife's use of a legal training collar at her home is not Husband's concern. Even if it was his concern, the placing of collar on a dog could never justify traumatizing one's own children. This incident is illustrative of Husband's explosive and unpredictable behavior that created an aura of fear, stress, and turmoil in the home and which continues to this day. It is for this reason that these young children do not feel safe nor secure anywhere, not even in their own home.
In yet another explosive incident testified to at trial, on Christmas Eve 2012, Husband took the children out to run errands while Wife prepared a traditional meal and cleaned the house for the many guests who were joining them later that evening. Upon returning home, Husband placed the items he had purchased on the counter Wife had just cleaned. Wife "gave him a look" but said nothing. Husband flew into a violent rage, screaming profanities and degrading Wife. Husband was so enraged he broke the front door of the home as he stormed out. Wife called Husband's father to come over immediately. The subject child A.D. Jr. (then five years old) begged his father to stop but to no avail. Husband continued his tirade publicly outside the house until the paternal grandfather was able to calm him down. After this incident, like so many before it, Husband apologized, admitted he could not control his temper, professed his love for Wife, and swore that it would never happened again.
This Court's concerns regarding Husband's ability to safeguard the emotional health of the children has been heightened by another decision made by him during this trial. In or around October of 2015, Husband's attorneys of record made an application to withdraw as counsel for nonpayment of legal fees, among other reasons. Husband decided that the best way to obtain a substitute attorney was to post hundreds of flyers around the courthouses of Richmond, Kings, and New York counties. While Husband did secure a lawyer to his benefit, Husband caused the public dissemination of details of this divorce, including photographs of Wife. (Tr. 12/18/15 pg.78; Pl.Ex. 62). Beyond posting flyers, Husband gave numerous media interviews. At trial, Husband indicated no remorse whatsoever for the consequences his actions including the humiliation of Wife and the subject children. Rather, Husband testified that he "did what he needed to do" to obtain an attorney. Husband's showed poor insight in that he failed to foresee the effect his actions could have on his children. Moreover, Husband's widespread dissemination of the details of this divorce proceeding is in clear violation of Domestic Relations Law § 235 which mandates that divorce proceedings remain confidential. See e.g. Kodsi v. Gee, 54 A.D.3d 613, 864 N.Y.S.2d 9 (1st Dept.2008).
After considering the testimony of both parties, and the evidence offered at trial, this Court finds that Wife is by far the more fit parent to protect and safeguard the emotional development of the children. See Miller v. Pipia, 297 A.D.2d 362, 746 N.Y.S.2d 729 (2d Dept.2002). In contrast to Husband, Wife has been a stable, consistent, supportive force in the children's lives and has attempted to lessen the impact of this divorce on them. When considered together with the other factors set forth herein, this Court finds that Wife's actions in response to the trauma suffered by her children is illustrative of her superior fitness to parent. Conversely, Husband has shown that he will resort to any means to get what he perceives is in his own interest even at the cost of his children's mental health. This "any means justifies the end" approach is not responsible parenting and is not in these children's best interest.
c. Demeanor, Impulse Control, Criminal History
Wife testified at length at trial as to Husband's inability to control his anger. This inability to maintain self-control was also apparent to the Court. Throughout the trial, Husband frequently would snicker, smirk, laugh, and acted in a disrespectful manner. Husband's contempt for mother was evident and visible throughout the divorce proceedings, even in the presence of the Court. From shouting profanities during Wife's testimony such as "This is f$( 3) ( 3)( 3) cking bulls* *t" (Tr. 5/28/15 p. 175) to storming out of the courtroom during trial to throwing a cup of water given to him by a court officer, Husband's inability to control his anger is clear. Husband's frequent angry outbursts caused the Court to halt the proceedings numerous times in order to give Husband a "time out" cooling off period. This immature behavior cost the parties and this Court much precious trial time that could have been used for far better purposes. (See e.g. Tr. 6/10/16 pgs. 18; 41). In addition, Husband's testimony was heavily laden with crass, vulgar language, even when unnecessary. As with any trial, the demeanor of the parties is a factor that the Court has to consider as is it is reflective of both credibility and character. See Pedreira v. Pedreira, 17 A.D.3d 213, 793 N.Y.S.2d 373 (1st Dept.2005) ; See also, Matter of Tony R. v. Stephanie D., 145 A.D.3d 691, 44 N.Y.S.3d 66 (1st Dept.2017). In the present case, Husband's courtroom demeanor not only denotes a lack of respect for authority, and a lack of credibility, but also evidences the very unmitigated anger and impulse control issues alleged by Wife. See Braverman v. Braverman, 140 AD3d 413 (1st Dept.2016) ; See also, Susan G.B. v. Yehiel B.H., 2016 A.D.2d 58 (1st Dept.1995).
While vulgar language is sometimes used on the record in divorce cases in relation to quotes, in this matter, Husband would use vulgar language so frequently and without reservation that it is clear to this Court that it is his normal manner of speech. (See e.g. Tr. 11/13/15 pg.127).
In addition, while remote in time, another undisputed incident is cause for concern when deciding Father's fitness. In or around 1991, Husband was involved in an incident on a college campus which ultimately resulted in his arrest and incarceration for attempted murder. When making a custody determination, a Court may consider each parties' criminal history as evidence of fitness and character. See Matter of Nunn v. Bagley, 63 A.D.3d 1068, 880 N.Y.S.2d 561 (2d Dept.2009). According to Husband, he was arrested for "stabbing" another student. Husband explained that he was convicted for attempted murder and served "one and a third to four [years] under a youthful offender status." Husband actually served over a year in prison, from November of 1992 to December of 1993, followed by two years in a work release program. When questioned about this crime, Husband testified that he got into a fight in school and "stabbed a guy, and that's it." (Tr. 9/1/15 pg. 170).
While this event, which was considerably remote in time, was afforded little weight in this Court's custodial determination, it does support Wife's claim that Husband cannot control himself when angry. While Wife does not allege that Husband's rage has been directed towards their children, Husband cannot control his temper in the presence of the children. For example, on New Year's Eve 2012, the parties went to a party at Wife's uncle's house. Husband, Wife and the subject children were driving home. While traveling on the highway at a high rate of speed, an erratic drunk driver cut their car off. Rather than back off, or drive defensively, Husband flew into a rage, sped up until he was in front of the car, and slammed on his breaks in an attempt to cause the other driver to slam into the back of their car where the children were seated. (Tr. 7/31/15 pg. 51). Wife credibly testified that when she was screamed for Husband to stop and calm down, he called her degrading names and told her to shut up. The children were so frightened they sat motionless in their car seats. When asked why Husband would engage in such a wanton and reckless act with his own young children in the car, Husband testified that in his view, "it was the best decision to get him away from me" (Tr. 9/2/15 pg.284). Husband could not explain how pulling up in front of that car and slamming on his brakes in an effort to get the other car to rear end their car would get them away from the other driver. The explanation was ludicrous and not worthy of belief. It is fortunate that a high speed collision on this highway did not occur because the children strapped in their car seats in the back would have absorbed the majority of that impact.
The common theme in all these examples (and there were more not discussed here) is Husband's inability to control his anger in the presence of the children and his reckless lack of regard for the consequences of his rage. At trial, the Forensic Evaluator, Dr. Peter Favaro, opined that when children see abusive, demeaning, or vulgar behavior, they are likely to imitate it. After considering the trial record, and the opinion of the Forensic Evaluator, the Court is concerned that if granted custody, Husband's temper and lack of impulse control are likely to have even more negative effects on the subject children's emotional and psychological wellbeing. See Jared CC. v. Marcie D.D., 138 A.D.3d 1168, 32 N.Y.S.3d 330 (3rd Dept.2016). Conversely, when asked how Wife displays her anger, Husband testified that Wife is "passive-aggressive" but "very rarely loses control." (Tr. 11/13/15 pg.156).
Last, while Husband asserts that his poor treatment of Wife and others has "no effect" on his children the record does not support this claim. Clearly, the children are more perceptive than Husband cares to acknowledge. In one such example, N.D. wanted to share a play date with a friend. Husband asked for the friend's phone number so that he could speak with her parents to arrange the play date. While this would be routine in other families, N.D. began crying and begged her father to be "nice" to her friend's parents. She begged him not to be mean to them. (Tr. 3/4/16 pg.109). Rather than pausing to consider why N.D. would feel the need to beg him not to alienate her friends parents, Husband blamed Wife. Clearly, even at her young age, N.D. was unsure what her Father's treatment would be to her friend's parents. It is obvious that she was worried that if Father was mean to them she might lose her friend. In short, this child cannot be sure who will "show up" any particular time, the "loving Daddy" or the "mean Daddy." This is a sad commentary when considered against the vast love that Husband admittedly has for his children.
Clearly, Husband's uncontrolled temper, lack of impulse control, and criminal history are factors that do not weigh in his favor in this custody determination. See Matter of D'Amico v. Corrado, 129 A.D.3d 718, 10 N.Y.S.3d 316 (2d Dept.2015) ; See also, Susan G.B. v. Yehiel B.H., 216 A.D.2d 58, 627 N.Y.S.2d 384 (1st Dept.1995). These findings have been given some weight by this Court as they bear on Husband's fitness to be the custodial parent.
d. Ability to Foster a Relationship with Non–Custodial Parent.
Primary among the factors considered in making this custody determination, this Court has considered which parent is in a better position to facilitate and foster a meaningful relationship between the subject child and the non-custodial parent. See Matter of Lawler v. Eder, 106 A.D.3d 739, 966 N.Y.S.2d 92 (2d Dept.2013). "One of the primary responsibilities of a custodial parent is to assure meaningful contact between the child and the noncustodial parent ." Alvarez v. Alvarez, 114 A.D.3d 889, 980 N.Y.S.2d 583 (2d Dept.2014). In evaluating N.D. and A .D. Jr.'s best interests, this Court has given substantial time and thought to "the effect that an award of custody to one parent might have on the child's relationship with the other parent." Bliss on behalf of Ach v. Ach, 56 N.Y.2d 995, 453 N.Y.S.2d 633, 439 N.E.2d 349 (1982).
At trial, Wife attempted to establish that Husband had waged a campaign of parental alienation against her. In support of this claim, Wife credibly testified to a number of actions and decisions by Husband that substantiate her concern that, if granted sole custody, Husband would isolate her from the children's' lives. Wife indicated that Husband has attempted to poison the children against her, blaming her for causing the breakup of the family. Wife credibly testified that Husband has said "mommy caused the death of the family, Mom did this, this is mommy's fault, Mommy wants me out of the house." (Tr. 1/30/15 pg. 124). Wife further testified that the kids are undergoing "psychological damage" in that they are being "encouraged to lie hide things [and] keep secrets they are traumatized." (Tr. 6/10/15 pg.18).
The record is replete with examples of Husband's marginalization of Wife. One such example involved something as benign as the children's sports uniforms. Wife credibly testified that throughout the course of this litigation she would do her best to ensure that the children had the equipment that they needed in order to participate in their chosen activities. All that she requested was that Husband inform her of what they needed during his parenting time. Rather than complying with this request, Wife credibly testified that Husband would intentionally "forget" to ask her for things with the intention of blaming her when the children were unprepared. When the children would start crying that they could not participate because they lacked a piece of equipment, Husband would state "your mother has it, she's out partying, she don't give a sh*t." (Tr. 1/30/15 pg. 172).
Wife further testified that, before the parties had a court ordered parenting schedule, Husband would place these young children in the untenable position of deciding which parent they should visit with at that moment. Husband would regularly show up at random locations where Wife was with the subject children and demand immediate parenting time. If Wife objected, Husband would turn to the kids and demand that they choose which parent they wanted to be with at that moment. This chaotic impulsive appearance of their Father and his insistence that the children decide who to visit with caused them great stress and fear of his reaction if they didn't choose him. In order to lessen the trauma to the children, Wife would often give in to his demands which positively reinforced this negative behavior.
On the subject of alienation, Husband has already shown a propensity to "get even" with Wife by causing the destruction of her relationships with other people in her life. Wife credibly testified that she once enjoyed a "special relationship" with her father in law with whom she spent significant personal time. They enjoyed going to the gym together, among other activities. Wife further testified that she got along well with her mother in law. The parties also had mutual friends, including the parents of their children's friends. Since the commencement of this divorce action, Husband has taken active steps to alienate Wife from her in-laws, and pretty much everyone else they knew in common. Wife credibly testified that Husband "has instructed everyone, including my own family, not to speak to me." (Tr. 7/31/15 pgs.124–125).
When testifying, Husband found it difficult to say anything positive about Wife's parenting of either of the subject children. Husband accused Wife of neglecting the children by putting her own needs before theirs. Husband connects Wife's alleged decline in parental fitness to the decline of their marriage. Husband testified that "she at some point was a good mother and a good wife, and that stopped around 2010 or 2011 a drastic change." (Tr. 11/13/15 pg.78). Wife proved at trial that far from fostering a relationship, Husband uses every incident, no matter how trivial, as ammunition against her. For example, when N.D. did poorly on a test, Husband texted Wife a picture of the test writing "evidence of your destruction". (Tr. 2/10/15 pg.237).
Despite Husband's clear animosity towards Wife, Wife has established that she has done her best to foster a positive relationship between her children and their father. In one such instance, the subject child A.D. Jr. was to receive communion and requested that his father be present at the party after the event. Despite her concerns, Wife offered that Husband could come to her house to pick up the child and spend the evening with him at the party or after the party. Husband simply ignored Wife's offer, resulting in the subject child "crying himself to sleep." (Tr. 2/10/15 pg. 245; 6/17/15 pg.41).
Wife further evidenced her ability to foster a relationship as she was able to say positive things about Husband despite the amount of hostility that existed during the marriage. Wife testified that Husband is a good father, that his children love him, and that he loves his children. (Tr. 7/31/15 pg. 49). Wife also identified various positive attributes of Husband to the forensic evaluator. Wife established that she understands that Husband does not have hatred for his children, just for her. Wife argues that this hatred causes him to use poor judgment which ultimately results in harm to the children, whether intended or not. Wife credibly testified that she has told him "we need to put our issues aside I understand that we have issues but we need to be parents we need to put that aside and do what's right for them." (Tr. 7/31/15 pg. 96).
In one illustrative occurrence that took place during the course of this litigation, both parties jointly appeared in the office of a child therapist who was considering taking on the subject children as patients. The therapist felt it appropriate to have the parties, and the children, sit in the same room during the intake process. Husband immediately objected to the entire process. He first objected to being in the same room with Wife, although Wife correctly indicated that the Temporary Order of Protection allowed for them to be in the same place, at the same time. (Tr. 12/18/15 pg.41). Husband then objected to being questioned in the presence of his children. While the intake process was ultimately modified to meet Husband's demands, this incident makes clear that Husband's unresolved anger towards Wife would preclude any award of joint decision making.
Dr. Peter Favaro, offered his insight on the issue of co-parenting in this case. Dr. Favaro opined that if "even a few of the allegations set forth by [D.D.] about [A.D.] are true then I would say [that Husband] has a limited ability to foster a relationship with her, because he's poisoning the kids." (Tr. 3/6/15 pg.79). After consideration of the instances above, together with the balance of the record, and the observations of the Forensic Evaluator, it is clear that Wife presents as the parent far more likely to foster a relationship between the subject children and Husband. See Matter of David C. v. Laniece J, 102 A.D.3d 542, 958 N.Y.S.2d 145 (1stDept.2013) ; See also Matter of Cisse v. Graham, 120 A.D.3d 801, 991 N.Y.S.2d 465 (2d Dept.2014). The ability to foster a meaningful relationship with the non custodial parent is a factor given a considerable amount of weight by this Court in reaching its custody decision.
After consideration of the record before the Court, there is more than enough evidence to suggest that if Husband were awarded sole custody, he would likely limit any meaningful relationship between Wife and the subject children. See Khan–Soleil v. Rashad, 111 A.D.3d 728, 978 N.Y.S.2d 226 (2d Dept.2013) ; See also William S v. Tynia C., 283 A.D.2d 327, 724 N.Y.S.2d 848 (1stDept.2001). While Husband loves his children, and might not "intentionally" alienate them from Mother, he has exhibited a profound hatred for his Wife and a general inability to control his impulses and temper, such that his conduct would likely result in parental alienation.As Husband evidences no insight into what role he might have played in the demise of the marriage or with respect to the consequences of his anger on the subject children, this Court holds little hope that this issue will ever improve. In contrast, while Wife certainly dislikes Husband, she has acknowledged certain positive attributes of Husband, and has shown a willingness to include him in important decisions and events involving the children.
e. Financial Stability/ Failure to Follow Court Orders
Early on in this proceeding the Court found that Husband's income as a licensed electrician was more than sufficient to support Wife and the subject children as it did during the course of the marriage. Nothing during the trial has served to change this Court's opinion in that regard. Notwithstanding Husband's claims of diminished income, which are self-serving and not credible, Wife's income is substantially less than Husband's. Indeed, despite substantial effort, Wife has not yet been able to duplicate the $75,000 income she earned when she was working for Husband's business.
While financial stability would be a factor that would ordinarily benefit Husband, as the monied spouse, it does not benefit him in this case given his contemptuous conduct. When given the opportunity to do so, Husband refused to pay the maintenance ordered by this Court. This endangered the lifestyle and the stability of the children. They have been forced to endure the utilities being shut off, access to the internet needed to do their homework removed, and the threatened loss of their home to foreclosure. This Court had to grant Wife sole authority to modify the mortgage on an emergency basis just to ensure that the children were not evicted from the marital home. Even when faced with the dire circumstances he caused, Husband still refused to sign the modification agreement lowering the mortgage payment to an amount not dependent on court ordered support so that the children could remain in their home.
While arguing that he was "unable" to pay maintenance, Husband credibly testified that, for example, he frequently took his children, and their friends (at his expense), to the movies. While these entertainment costs are far less than the amount of support Husband owes, it shows that Husband was capable of spending money for things he wanted to spend money on. When faced with a question as to how he could justify treating his children's friends to the movies when he couldn't afford to pay maintenance, Husband stated that "it's important to foster a relationship with my children and their friends". (Tr. 12/18/15 pg. 86). While this may be true, it is far more important that the court ordered expenses are paid in the marital home. Moreover, while Husband was proud that his children got to see virtually "every new movie" with him, he had no problem allowing their television service to be shut off for lack of payment.
While it is true that Husband was generally consistent in making his child support payments, his failure to comply with the Court's maintenance award still endangered the children's stability. Moreover, Husband's child support included a significant downward deviation from the CSSA guidelines in part due to Husband's obligation to pay maintenance. (See PL Decision dated 12/2/13). Whether intended or not, Husband's attempt to punish Wife by not complying with this Court's orders placed the stability of the children in jeopardy since the beginning of this case. Rather than moving to reargue this Court's orders, or appealing them, Husband simply chose to disregard them. Separate and apart from the financial harm done to the household, Husband's failure to pay maintenance evidences a blatant disregard of the authority of this Court. See Matter of Lopez v. Alvarez, 132 A.D.3d 766, 17 N.Y.S.3d 658 (2d Dept.2015). This Court has given substantial weight to the fact that Husband complies with the court orders that he chooses to follow, and disregards those he believes benefit Wife. For these reasons, this Court is not confident that if awarded custody, Husband would follow any parental access directive that he did not agree with, such as a duty to confer, or provide access to information. See Greenberg v. Greenberg, 144 AD3d 625 (2d Dept.2016) ; See also Matter of Nia Dara B. v. Jonathan B., 127 A.D.3d 518, 9 N.Y.S.3d 10 (1st Dept.2015).
f. Access to Extended Family.
A child's access to extended family is a factor that would generally benefit the parent who fosters and provides that access. See Matter of Blakeney v. Blakeney, 99 A.D.3d 898, 952 N.Y.S.2d 295 (2d Dept.2012). Both parties here have extended family in the New York area, although Husband's family is larger than Wife's. During the course of this litigation, Husband has resided in his parents' home with his mother, his father and his adult brother, J. D.. While this fact would ordinarily weigh in Husband's favor, in this case, it does not benefit him.
Husband called paternal grandfather, A. D., Sr., as a witness at trial. A. D., Sr. is a retired police officer. He acknowledged that he deposited checks made out to his son (of the same name) for electrical work into his own personal checking account. At the time he deposited Husband's checks into his own account, he knew Husband was being accused of manipulating his income to avoid complying with this Court's support order. As Husband's failure to pay support has harmed the subject children, Paternal Grandfather's admitted complicity in Husband's diversion of income is deeply troubling to this Court.
Husband further testified that while Wife and his mother once enjoyed a close relationship, they no longer get along. Paternal Grandmother frequently attends the child A.D. Jr.'s football and baseball games and when she does, she stays on the opposite end of the field from Wife. While Husband denied Wife's claim that his mother "spit" on her at A.D. Jr.'s baseball game, Husband admits his mother resents Plaintiff for using her babysitting and other assistance "to have her affair." (Tr. 11/13/15, p. 152). Wife credibly testified that Husband forbade any member of his family from ever speaking to her again. The poor relationship between Paternal Grandmother and Plaintiff is also distressing to the children, who recall past times when everyone was together as a cohesive family.
In addition to his parents, Husband has been residing throughout the course of this litigation with his brother, J. D.. At trial, Wife testified that she was concerned about the children's access to their uncle, as she believes he was "arrested for federal drug charges for drug sales to kids" (Tr. 2/10/15 pg.254). No further evidence was offered as to what crimes, if any, Husband's brother actually committed. Husband did not address this subject while on the stand.
In short, far from being a resource for the children as they adjust to the separation of their parents, Husband's extended family has aligned with him in his disdain for Wife. While the Paternal Grandparents have supported Husband, they have also have served to enable, intentionally or otherwise, Husband's attempts to alienate Wife and prolong this litigation. For example, according to Husband, Paternal Grandmother pays for horse lessons for N.D., an activity she loves. While this would ordinarily be a generous loving act on the part of a grandmother, in this case it was used to alienate Wife, and confuse N.D., as Grandmother refused to pay for lessons "on Mother's time."
Notwithstanding the foregoing, Wife has indicated that she is supportive of the children having a relationship with Husband's family. Accordingly, while all parties agree that the children will benefit from having a relationship with their paternal grandparents, that benefit is greatly diminished by their taking sides in this litigation. Therefore, the fact that Husband has access to more extended family than Wife is a factor that has been afforded very little weight by this Court.
On the other hand, the maternal relatives have been a loving stable support for Wife and children. While maternal grandfather sued the parties herein to secure monies he had lent them, this was not the fault of Mr. J. D.. He and his attorneys made numerous offers to settle this litigation that were accepted by Wife, who acknowledged the loan. Husband refused to pay Mr. J.D. back the $280,000 the parties borrowed unless Wife gave up her custody claim here.
g. Access to Siblings.
Neither party to this divorce has requested an order of custody that would split the subject children, nor would the record support any such order. During this trial, and despite his anger against Wife for having an affair, Husband has fathered a new baby. This baby girl, who is a half-sibling to the subject children, lives with her mother in Queens. Husband does not live with his girlfriend or with his new baby at this time. Husband credibly testified that the subject children have a relationship with their new baby sister who visits with them once a week at the paternal grandparents' home. This Court has considered the subject children's right to have a loving relationship with their half-sibling. See Olimpia M. v. Steven M., 228 A.D.2d 270, 643 N.Y.S.2d 584 (1st Dept.1996).
While access to their new baby sister would be a factor that would ordinarily weigh in Husband's favor, Husband has credibly testified that he has no intention of relocating to Queens or otherwise living with his child's mother. Therefore, the subject children's access to their new sister would be unchanged by an award of custody to Wife. The subject children would continue to see this baby on a regular basis during Husband's parental access time as they currently do.
Moreover, this Court finds that Wife would support the subject children having a meaningful relationship with their new baby sister. See Eshbach v. Eschbach, 56 N.Y.2d 167, 451 N.Y.S.2d 658, 436 N.E.2d 1260 (1982) ; See also Matter of Parrish P. v. Camille G., 140 AD3d 586 (1st Dept.2016). For example, although Husband did not tell Wife or the subject children that he was expecting a new baby with another woman until the eve of his girlfriend's baby shower, Wife encouraged N.D. to attend, and helped her pick out a dress to wear. In another example, Husband admitted that Wife was "nice" for letting the subject children go to a christening party for their new sibling. (Tr. 11/13/15 pg.30).
Throughout the trial, both parties testified that while the subject child A.D. Jr. seemed unaffected by the arrival of a new sister, N.D. did not take the news well at all. Husband credibly testified that when he informed N.D. about the baby she had an emotional and angry outburst. Husband further testified that when the new baby visits his house, N.D. often chooses to stay in her room. The Court credits Wife's testimony that she has done her best to comfort N.D. and address her anxiety about the new baby. Wife credibly testified that she has had numerous discussions with the subject children about their half-sister. The discussions have been mostly positive as Wife tries to get the children accept this newest addition to their father's family.
The importance of this half-sibling relationship is a factor that was afforded some weight by this Court. To this end, this Court has considered that Wife has encouraged access. In addition, Husband does not live with his daughter and has to plans to do so in the foreseeable future. For these reasons, the Court finds that the subject children's access to their halfsibling will remain substantially the same regardless of which parent was awarded custody.
h. The Forensic Evaluator
During the course of these proceedings, a forensic evaluation was conducted by Dr. Peter Favaro. The recommendation of the forensic evaluator was a factor considered by this Court in making its custody determination. "While the recommendation of a court-appointed evaluator is not determinative, it is a factor to be considered and is entitled to some weight." Matter of Doyle v. Debe, 120 A.D.3d 676, 991 N.Y.S.2d 135 (2d Dept.2014).
By Order dated August 6, 2013, Dr. Peter Favaro was appointed to conduct a forensic evaluation in furtherance of the issues of custody and parental access. Husband was ordered to pay 95% of the costs of Dr. Favaro's fees and Wife was ordered to pay 5% of those fees. As part of his evaluation, Dr. Favaro interviewed various collateral sources. His report was entered into evidence without objection (Pl.Ex.10). Dr. Favaro testified before this Court on March 6, 2015. All counsel stipulated that Dr. Favaro was an expert in "forensic psychology" and "anger management." Both parties cooperated with the forensic evaluation, which was conducted in an extensive, scientific format detailed on the record by the forensic evaluator.
In Dr. Favaro's professional view, both parties love the children and the subject children love both of their parents. While Dr. Favaro repeatedly indicated during this testimony that he (correctly) understands that he is not the "finder of fact," he did offer his professional opinions. Dr. Favaro testified that if Wife's allegations of stalking, verbal abuse and maltreatment were found to be credible (as they have been found by this Court) that it would "be a factor to serve to eliminate [Husband] as a potential custodian" (Tr. 3/6/15 pg. 25). While again, not making a credibility determination, Dr. Favaro further offered his opinion that when children are exposed to a parent who exhibits rage and a violent temper, that it is detrimental, as they will "imitate aggression that is modeled". (Tr. 3/6/16 pg. 32). As indicated above, this Court has credited Wife's testimony regarding Husband's temperament and anger control issues.
In regard to Husband's views towards Wife, Dr. Favaro concluded that Husband "hates his Wife" and thus has difficultly co-parenting with her. During the evaluation, Husband referred to Wife as a "bad person" and a "bad mother." As part of the evaluation, Dr. Favaro had each party write a narrative regarding their marriage and divorce. Husband took this opportunity to write Dr. Favaro a long, detailed, and graphic letter describing the parties' sex life. Dr. Favaro opined that this may have been intended "to demean and embarrass" Wife.
While Dr. Favaro indicated that Wife "dislikes" Husband, and is passively hostile to him, he concluded that she "does not hate him". (Tr. 3/6/15 pg.62). Dr. Favaro indicated that Wife can be civil to Husband for the sake of the children, though her attempts are often rejected. Notably, Dr. Favaro indicated that Wife was able to discuss some of Husband's good qualities and to indicate that he is a "good, loving dad." In contrast Dr. Favaro stated that "[A.D.] spent most of his time talking to me trying to convince me that she is a sick, horrible person." (Tr. 3/6/15 pg.75).
Dr. Favaro further opined that Husband "often prioritized punishing [D.D.] for being unfaithful over the needs of his kids. "He loves his kids. His kids love him. He is very attuned to his kid's needs, but he hates his Wife." (Tr. 3/6/16 pg.34). The Court finds this observation quite troubling. As indicated above, this Court finds that Husband's anger for Wife is so strong it causes an inability on Husband's part to effectively co-parent. Rather, Husband's burning hatred for his Wife fuels his efforts to marginalize her, and his attempts to alienate the children from her. On this topic, Wife astutely and succinctly testified that "his hate towards me overrides his love for his children." (Tr. 7/31/15 pg.146).
As indicated in his report, and in his trial testimony, Dr. Favaro opined that, as joint custody was not indicated, spheres of decision making might be appropriate in this case. (Tr. 3/6/15 pg.40). The attorney for the children suggested sphere decision making as well, but did not recommend any particular sphere to each parent. Dr. Favaro identified four applicable spheres of decision making, (1) medical; (2) educational, (3) extracurricular activities, and (4) religion. In regard to religious decision making, Dr. Favaro opined that both parents are on the same page, and thus it is not an issue worth addressing. This court disagrees that spheres of decision making would be practicable in this case or in the children's best interests.
On the subject of educational decision making, Dr. Favaro opined that Wife is the more fit parent. Dr. Favaro based this opinion on the fact that Wife has obtained a Bachelor's and Master's Degree and better appreciated the value of higher education. At trial, Husband agreed that Wife was better educated than he was, and better equipped to make educational decisions.
On the subject of medical decision making, Dr. Favaro candidly testified that, if the Court credited Wife's claim that Husband interfered with the subject children's therapy that would be a troubling event. In this regard, Wife has proven that, on numerous occasions, Husband has taken steps to interfere with these children's access to mental health services. From bullying therapists he perceived as siding with Wife to enrolling the children in alternate services without prior court approval, to failing to pay support which caused the children to lose their existing medical insurance and their participating therapist, Husband has ensured that the children's access to therapy has been wrapped in chaos, uncertainty and unnecessary stress. On the contrary, Wife has consistently understood the importance of continued counseling for the children and has been left to deal with the consequences of Husband's behavior, including finding multiple therapists to replace those that refused to treat the children after dealing with Husband. In any event, Wife has been primarily responsible for the medical needs of the children. Her higher education will aid her in making informed decisions in the medical sphere.
Moreover, an incident that occurred mid trial speaks to Husband's ability to have final decision making regarding medical decisions. The subject N.D. needed to be taken to an emergency room for abdominal pain while in Husband's care. Rather than calling Wife himself, Husband directed N.D. to call her mother while he drove her to a local hospital. Husband refused to speak Wife even in that emergency medical situation. Husband's cell phone had Wife's contact information stored under the name "Z. D. Animal Piece of Sh*t." This derogatory and degrading "name" remained on the screen as the child spoke to her mother. When asked about this incident, Husband outright lied under oath to this Court claimed that he had his Wife's phone number stored simply as "D.D.." When he was demanded to produce his phone for examination on cross examination, Wife's contact information was found only under this vulgar and degrading "contact name" (Tr. 6/9/16 pg. 7). During Wife's redirect testimony, it was established through an in-court phone call that this degrading name would have necessarily remained on the screen while N.D. was forced to explain that she was on the way to the hospital. Husband's conduct during this medical emergency speaks volumes as to his fitness to have final decision making regarding medical decisions.
Wife credibly testified that the "Z" was intended to place her at the bottom of Husband's telephone contact list, the "D" represented her first name. "Animal Piece of Sh*t" is self-explanatory, but did not include an asterisk on the phone.
Finally, Dr. Favaro opined that Husband could be granted the sphere of "after school activities" or "extra-curricular" activities. Here again, this Court disagrees. While this Court agrees that Husband has been more involved in the children's after school activities than Wife has, even with regard to these activities, Husband has sowed unnecessary trouble. For example, at various times, he has refused to communicate practice schedules to Wife and has refused to advise her as to what equipment the children need. Perhaps more importantly, on at least one occasion, Husband sent a group text to the team parents using "Z. D. animal Piece of Sh*t" as Wife's text information. Clearly, Husband has failed to show that he is the more fit parent even for this sphere. While Husband has been present at athletic games more than Wife, this does not mean he should be granted final decision making over what activities these children are engaged in. To award any sphere of decision making to Husband, would be to necessarily remove Wife from that sphere completely. Moreover, awarding extra-curricular activities to Husband would support Husband's misguided belief that he can freely spend money on his children's recreational activities while completely ignoring his financial obligations under the Orders of this Court.
Dr. Favaro suggested the parties could make use of a third party professional, such as a parent coordinator, to help them communicate regarding decisions. However, when presented with Husband's failure to follow court orders, Dr. Favaro withdrew the suggestion. (Tr. 3/6/16 pgs. 40–41). Dr. Favaro further pointed out that, as of the date of his testimony, Husband had still not paid his share of his forensic evaluation fee in violation of this Court's Orders.
In regard to parenting time, the Court agrees with Dr. Favaro and the attorney for the children that both parties should share significant time with the children. The Court finds that the parenting schedule set forth below will provide significant parental access to both the custodial and non-custodial parent.
i. The Attorney for the Subject Children
The position of the subject children's attorney was also considered by the Court. See Matter of Guiracocha v. Amaro, 122 A.D.3d 632, 996 N.Y.S.2d 108 (2d Dept.2014) ; See also Matter of Conway v. Gartmond, 108 A.D.3d 667, 969 N.Y.S.2d 525 (2d Dept.2013). The attorney for the child contends that Wife should be awarded "physical custody." (See AFC's Summation Para. 59). Any recommendation of spheres of parenting has been rejected by this Court. The Attorney for the Subject Children also suggests that the current schedule should remain as currently set forth in the temporary parenting orders. This is not appropriate as both parents have proffered different preferences. Both have testified to practical difficulties with this temporary schedule. Moreover, the Court is concerned that the current "multiple transition" schedule is disruptive and causes unnecessary stress to these already anxious children. While the Court sees the benefit of providing both parties with equivalent access, the Court must also weigh Wife's stated concerns regarding stability during the school week.
j. In Camera Examination
Separate and apart from the position set forth by the Attorney for the Subject Children, the children's stated wishes must be considered by the Court. While not determinative, a child's expressed preference is a factor to be considered by the Court "particularly where the attorney for the child recommend[s] that the child's wishes be given weight, and where the [in camera] interview demonstrates the child's level of maturity" Matter of Ivory B. v. Shamecca D.B., 121 A.D.3d 674, 993 N.Y.S.2d 173 (2d Dept.2014). The subject children appeared for an in camera examination on September 12, 2016. After a swearability hearing, the Court determined that each child has sufficient understanding of truthfulness such that they can give testimony under oath. While the Court will not reveal the content of the in camera examination, their testimony was considered by the Court in rendering this Decision.
k. Domestic Violence
On April 29, 2013, Wife brought a Family Offense Petition against Husband alleging a longstanding pattern of abusive behavior concluding in an incident wherein Husband "stole" her car and left her stranded in New Jersey. This Petition was consolidated into this matrimonial action on June 11, 2013. At trial, in addition to the allegations set forth in the Family Offense Petition, Wife credibly testified that Husband had engaged in a longstanding pattern of poor treatment against her, including verbal abuse, stalking, and harassment. Wife testified that many of these events took place in the presence of the subject children. To the extent that these events are also the subject of Wife's request for an Order of Protection, they are discussed at length later in this Decision.
Rather than repeat each allegation here, the Court notes that Wife's testimony on the subject of domestic violence was credible. Wife established that from even the early stages of their marriage Husband asserted power and control over her, and was prone to fits of rage when upset. Notably, Husband has admitted at trial that he has a temper and would frequently yell at his Wife, albeit while alleging that she would provoke him to anger on purpose. Wife clearly established that Husband would not hesitate to degrade her in front of her children, and that at times she feared for her safety. Perhaps most shockingly, Husband testified that he honestly believes that constant verbal fighting, with degrading and derogatory language being screamed in the presence of children is "normal behavior" for a married couple. (Tr. 9/2/15 pgs. 256–257). This Court vehemently disagrees that verbal abuse, even if mutual, is "normal." The fact that Husband believes that this type of behavior is normal, is very troublesome to this Court, as it reflects on Husband's character and fitness to parent.
The Court has specifically considered Wife's credible allegations of domestic violence and abusive behavior in this proceeding and given them substantial weight. See Matter of Melissa G. v. John W ., 143 AD3d 406 (1st Dept.2016) ; See also, Matter of Supangkat v. Torres, 101 A.D.3d 889, 954 N.Y.S.2d 915 (2d Dept.2012). To the extent that Husband alleged, and Wife admitted, that many of the verbal arguments were mutual, the Court credits Wife's position that it would be Husband that would instigate the fights, lose his temper, and fly into fits of rage.
l. Allegations of Sexual Misconduct
An extensive amount of trial time was utilized to describe the parties' sexual history. While Wife attempted to paint her Husband as a sexual deviant, she admitted on cross examination that both parties were engaging in somewhat extreme, but consensual, sexual behavior. However, despite the fact that Husband was aware the Wife was attempting to paint him as sexually obsessed, Husband could not resist bringing up the topic numerous times during the trial. Husband complained about having to wear a condom during his marriage, complained about the sexual positions Wife would consent to, and the frequency of oral sex. (Tr. 9/1/15 pgs.192–193). Moreover, Husband introduced a sexually explicit picture of his Wife into evidence, despite the fact that Wife was willing to stipulate that she sent explicit pictures to her Husband.
Much of the testimony offered by both parties on this subject is irrelevant to the issues present in this divorce proceeding as it described consensual sexual conduct that took place during the course of the parties' marriage. However, Wife also testified that some of the sexual behavior was not consensual. In one such example, Wife credibly testified that Husband would creep into her room at night while she was sleeping and grab her sexually. (Tr. 6/17/15, pg.60). Wife further credibly testified that even after their relationship had ended, Husband would come into the house and insist that he had the right to have sex with her because he paid the bills. (Tr. 6/17/15 pg.62). This Court considered Wife's credible testimony on this subject and gave it some weight in this custody decision.
Custody of N.D. and A.D., Jr.
After considering all the relevant factors indicated above, this Court finds that while both parents can meet the physical needs or the subject children, on balance, Wife is far more capable to address their emotional and intellectual needs and general wellbeing. See Rosenberg v. Rosenberg, 145 A.D.3d 1052, 44 N.Y.S.3d 489 (2d Dept.2016). Unfortunately, while Husband loves his children dearly, his strong negative feelings for Wife have clouded his judgment and caused him to make decisions that are not in his children's best interests.
Moreover, the Court finds that Husband has severe anger and impulse control issues. While Husband's decision to attend individual therapy is commendable, this level of intervention appears to have been insufficient. Notwithstanding years of litigation, and the fact that both parties have started new lives, Husband's antipathy for Wife has not waned. Husband's hatred was visible and apparent even in the controlled setting of a courtroom, as Husband could not control himself from snickering, laughing and acting out when his Wife was testifying.
The record at trial supports a conclusion that to award sole custody to Husband, or to award him final decision making in any sphere, would be to essentially remove Wife from that particular sphere. Moreover, the only sphere that the forensic evaluator recommended for Husband to have was extra-curricular activities. The Court finds that granting Husband the sole right to enroll his children in whatever activities he chooses, regardless of cost, while he concurrently fails to pay his court ordered support would award Husband for his contemptuous actions, and is otherwise not supported by this record.
In contrast, an award of sole, legal and physical custody to Wife will ensure that Husband is fully informed as to major events in the children's lives and that his concerns will be thoughtfully considered before a final decision is made. The Court finds that Wife is far better equipped to provide for the needs and emotional and educational development of these fragile children. Matter of Moses v. Williams, 138 A.D.3d 861, 29 N.Y.S.3d 493 (2d Dept.2016) ; See also, Matter of Smalls v. Payne, 64 A.D.3d 783, 884 N.Y.S.2d 761 (2d Dept.2009).
Moreover, after listening to Husband's testimony, this Court finds that Wife is the only parent capable of fully understanding that the children have a right to have a loving and meaningful relationship with the non-custodial parent. Sadly, this Court concludes that if granted sole custody, Husband's antipathy for Wife supported by the paternal relatives with whom Husband resides would significantly impair a meaningful relationship between the children and their mother. The duty to foster a relationship with the non-custodial parent becomes all the more important when dealing with young children who have already manifested symptoms of stress and anxiety due to parental conflict in their presence. Husband has established that he cares little for Wife's opinions, and that he feels that Wife is not an adequate parent, despite lacking any evidence to support that claim. The Court fears that an award of custody to Husband would risk these misplaced opinions being imputed to the children. Accordingly, the Court finds that Wife is the parent who is far more capable of fostering a relationship between the subject child and the non-custodial parent. See Matter of Quinones v. Quinones, 139 A.D.3d 1072, 32 N.Y.S.3d 607 (2d Dept.2016) ; See also, Matter of Wilson v. Bryant, 143 A.D.3d 905, 41 N.Y.S.3d 503 (2d Dept.2016).
After consideration of the above factors, and considering the fact that Wife presented as the more credible witness at trial, and moreover that Wife presents as the parent with the better temperament, an award of sole, legal and physical custody to Wife is hereby granted. The Court finds that an award of sole custody to Wife is in the subject child's best interests. See Matter of Clarke v. Wiltshire, 145 AD3d 776 (2d Dept.2016) ; See also, Patanella v. Keveney, 145 AD3d 686 (2d Dept.2016).
In furtherance of this award of sole custody, and the resulting responsibility as the custodial parent to foster the child's relationship with the non-custodial parent, Wife is hereby directed to confer with Husband on all issues relating to the children's, education, religion and medical matters. Wife shall, however, have final decision making authority with respect to these and all other major issues. At trial, Wife testified that she has had difficulty communicating with Husband as he has become hostile towards her, and that she feels that it will only get worse when he is not being "watched" by the Court. Accordingly, Wife's obligation to confer with Husband shall be limited to communication in writing, by email, letter, or text message. In so ruling, the Court notes that email and text messaging has been their preferred method of communication throughout these proceedings.
Each party shall retain authority to make day to day decisions while they are with the children. Both parents shall have access to the children's medical and educational records and to their medical providers and educators. Each parent shall be responsible for securing said information on their own. Both parties shall be entitled to attend all school, extracurricular and significant events in the children's life, at his or her own expense.
Parenting Time with Husband
While Wife has been granted an Order of sole legal and physical custody with final decision making, this does not end the Court's analysis. Husband shares a loving, close bond with the subject children that must be fostered through a meaningful parental access schedule. Wife is reminded of her increased obligation under the law to foster a relationship with Husband when exercising her award of sole custody. See Phillips v. Phillips, 146 A.D.3d 719, 46 N.Y.S.3d 77 (1st Dept.2017).
Both the forensic evaluator and the attorney for the subject children indicate their belief that an equal, or equivalent, sharing of parenting time would be in the children's best interests. During the course of this litigation, the parties have shared an equivalent amount of time with the subject children. However, the pendente lite visitation schedule which was never intended to remain in effect as long as it did, failed to serve the best interests of the children in a number of ways. For example, at trial, Wife expressed legitimate concerns about homework being done during Husband's parenting time, and the anxiety and stress caused by the mid-week exchange. Accordingly, Wife requests a parenting schedule that affords the children more consistency during the school week and decreases the current mid-week transitions.
After considering the totality of the circumstances, the Court finds that a more consistent schedule, without a mid-week transition, would be in the children's best interests. Accordingly, Husband shall have parenting time with the subject children on alternate weekends from pick up at school on Friday until drop off at school on Monday morning. In addition, Husband shall have overnight visits with the children every Monday from after school until drop off at school on Tuesday mornings. Wife's parenting time will commence with pickup after school on Tuesday. This schedule, while slightly different from the pendente lite schedule, addresses Wife's weekday homework concerns while still providing Husband with a significant amount of parenting time. Moreover, this schedule will limit the number of midweek transitions and result in a more continuous period of visitation for both parties. Finally, by removing mid week parenting obligations from Husband, Husband will be in a better position to remain at work in an effort to meet his purge conditions and other court obligations. All pick-ups and drop-offs that do not occur at school shall by Husband to Wife's home, curbside. When school is not in session on a Monday morning or on a Tuesday morning, drop off shall be by Husband curbside at Wife's home at 9:00 A.M. When school is not in session on a Friday, then pick up shall be by Father at 3:00 p.m from Mother's home curbside.
During trial, Husband testified that he manipulated his work schedule to "make time for his children" and implied that he could be making additional money during those hours as he did when Wife was tasked with watching the children on those days.
Holiday Time
The parties shall alternate all of the major holidays and school vacations as set forth below. Parenting time shall commence at 10:00 a.m. on the first day of the holiday or vacation period and shall conclude 9:00 p.m. on the final day of the visit unless otherwise specified below. If a conflict occurs between the normal parenting schedule and the holiday visitation schedule, the holiday visitation schedule will supersede normal parenting time. Holidays that fall on school days, such as Halloween, and the child's birthday, shall commence at school dismissal and end at 9:00 p.m.
Mother's Day shall always be with Mother and Father's Day shall always be with Father. Each parent shall have a total of two non-consecutive weeks of vacation with the child during the months of July and August. One week shall be in July; the other week shall be in August. Each party shall designate by email their vacation weeks by May first of each calendar year or be subject to the other parent's choice of designated weeks. Husband, as the non custodial parent, shall be granted first choice in the event that both parties seek the same weeks provided that he has timely designated his weeks in accordance herein.
At trial Wife testified at length that it would be her desire to have parenting time with the subject children every Christmas Eve. In return Wife suggested that Husband be granted every Fourth of July. Husband opposed Wife's proposed holiday schedule and argues that Christmas Eve is important to him also. Husband requests that each holiday simply be alternated. In regards to holiday visitation, the Court agrees with Husband. Accordingly, the following holidays shall be alternated:
Child's Birthday: even years: Mother / odd years: Father
Thanksgiving: even years: Mother / odd years: Father
Christmas Eve: even years: Father / odd years: Mother
Christmas Eve visit shall begin at 4 p.m. and end at 11 a.m. on Christmas Day.
Christmas Day: even years: Mother / odd years: Father
New Years Eve: even years: Mother / odd years: Father
New Years Eve visit shall begin at 4:00 p.m. and end at 12:00 p.m. on New Year's Day.
New Years Day: even years: Father / odd years: Mother
Martin Luther King Day: even years: Mother / odd years: Father
President's Day: even years: Father / odd years: Mother
Good Friday: even years: Father / odd years: Mother
Easter: even years: Mother / odd years: Father
Memorial Day: even years: Father / odd years: Mother
Fourth of July: even years: Father / odd years: Mother
Labor Day: even years: Mother / odd years: Father
Halloween: even years: Mother / odd years: Father
Columbus Day: even years: Father / odd years: Mother
Veteran's Day: even years: Mother / odd years: Father
Midwinter Recess (February ): the parent with the weekend directly preceding midwinter recess shall have parental access with the subject children until Wednesday of the vacation week at 3:00 p.m. The parent with the second weekend shall have the subject children from 3:00 p.m. Wednesday until Sunday at 9:00 p.m.
Spring Recess (April): the parent with the weekend directly preceding spring recess shall have the subject children until Wednesday of the vacation week at 3:00 p.m. The parent with the second weekend shall have the subject child from 3:00 p.m. Wednesday until Sunday at 9:00 p.m.
General Matters
Each parent shall ensure that homework, if any, is completed during their parenting time. It is the responsibility of the parent enjoying parenting time to arrange for child care, or to take off time from work, as may be appropriate in that parent's discretion.
Each parent is responsible for notifying the other parent in writing when they intend to take the children overnight outside of the New York tristate area (New York, New Jersey, Connecticut). If the children are to be taken out of the New York tristate area, then an itinerary of the travel plans must be provided with contact information.
The Court has attempted to craft a visitation schedule that is both comprehensive, and fair to both parties. However, unforeseen circumstances will occur. Accordingly, the parenting time schedule delineated herein and may be modified or supplemented by such additional and further visitation as agreed upon by the parties in writing.
Family Offense
Wife filed a Family Offense Petition on or about April 29, 2013 in Family Court. In her sworn Petition, Wife alleges a long pattern of aggressive and controlling behavior, including a threat from Husband to "inject her with heroin" to prevent her from getting custody in this divorce proceeding. Pursuant to that Petition, Wife seeks a "no contact full stay away order of protection with the usual terms and conditions." Upon appearing in Family Court, Wife was issued a Temporary Order of Protection that directed Husband to say away from her, her home, and her place of business together with the usual terms and conditions. Upon transfer to this Part, that Order was reissued, however it was modified to remove the "stay away" provision. The Temporary Order of Protection issued by this Court has remained in effect throughout this proceeding.
It is the burden of a party seeking an Order of Protection to establish one of the enumerated family offenses by a fair preponderance of the evidence. See Family Ct. Act § 812 ; See also, Matter of Tulshi v. Tulshi, 118 A.D.3d 716, 986 N.Y.S.2d 350 (2d Dept.2014). At trial, Wife attempted to establish that Husband committed acts which constitute the family offenses of Harassment in the First Degree; Harassment in the Second Degree; Reckless Endangerment; and Stalking in the Fourth Degree.
Wife's Family Offense Petition was consolidated into this divorce action, and supplemented by her testimony at trial. Wife testified not only as to the incident that caused her to file, but also to a long history of poor treatment by Husband throughout the course of the marriage. Wife credibly testified that early on in the marriage, Husband would have temper issues, but could generally control himself. However, as the marriage progressed, his behavior became more aggressive and controlling. Wife testified to a "cycle" of abusive behavior where Husband would fly into a fit of rage, and then later apologize. Wife credibility testified that in the later stages of their marriage Husband would frequently lose his temper, often in the presence of the children. Husband would also denigrate Wife in front of the children, repeatedly alleging infidelity and calling her a "whore." When Wife filed for divorce, Husband threatened to "shoot her up with heroin" if she tried to obtain custody of the children, a statement that he admitted through counsel, while claiming it was intended as a "joke ." (Tr. 6/17/15 pg. 54). Wife credibly testified that this threat caused her to fear for her physical safety. The record is replete with so many instances of verbal abuse that it would be arduous to cite them all here. Wife credibly testified that Husband would fight in front of the children at least "4, 5, 6 times a week." (Tr. 1/30/15 pg. 99.)
Husband's inappropriate behavior was not limited to verbal abuse. Wife also credibly testified to fits of violent behavior. In one such incident in, or around December of 2012, Husband flew into a fit of rage during an argument and destroyed the front door of the house. Soon thereafter, Husband put Wife and the children in imminent danger of harm during a New Year's Eve road rage incident. (1/30/15 pgs. 86–87). While Husband's violent behavior never resulted in physical injury to Wife, she did testify that Husband would sneak into her room at night and touch her inappropriately. (Tr. 6/17/15 pg. 60). Moreover, while Husband made much of the fact that he "never raised his hands" to his Wife, he did admit that he would frequently lose his temper and that on one occasion he "snatched the phone out of her hand." (Tr. 9/1/15 pgs. 197–199).
Wife further testified that throughout the course of their marriage Husband was so mistrusting of her that he could not control himself. Wife testified that Husband would constantly accuse her of infidelity any time she spoke with a man, or dared to be in a man's presence. Even when Wife was alone she would be suspected of wrongdoing. Wife credibly testified that when he was in a jealous state, Husband would send text message accusations "a hundred [times] a day." (Tr. 1/30/15 pg.136). The Court finds that these text messages served no legitimate purpose.
While Husband was unable to maintain self-control, Wife credibly testified that he did his best to control her. Husband would limit her use of the marital vehicle to activities that he "approved of." Husband would constantly interrogate Wife about her daily activities and expect her to be "on call" at all times. Husband even admitted that he could be controlling and possessive, callously stating "towards the end, yeah, sure." (Tr. 9/1/15 pg. 188).
Finally, Wife testified to at least ten instances where Husband would "follow" or "watch" her without her knowledge. As detailed in her Family Offense Petition, on or about April 28, 2013, which was notably after the commencement of this action, Wife went to a hotel in New Jersey. Unbeknownst to her, Wife was "spotted" by Husband's friend at a convenience store. Husband's friend contacted Husband, who was at a boxing match, and informed him of Wife's whereabouts. When Husband found that she was at a hotel, he traveled from Brooklyn to New Jersey, and removed her vehicle from the parking lot, without permission, stranding her without transportation. Wife was forced to call car service to get back home to Staten Island. In addition to this event, Wife further testified that she was in constant fear that she was being followed. Despite the fact that she was alone, or with friends, Husband would frequently text message her with what movie she was watching, what food she was eating, or who she was with. Husband's text messages would often be complete with details, such as if she was "15 minutes late to church." Wife indicated that Husband's apparent omniscience put her in a state of constant fear.
Wife admitted that she was very reluctant to call the police in reaction to Husband's behavior. While Husband attempted to use the lack of police involvement as an attack on Wife's credibility, the Court finds Wife's testimony to be credible. Moreover, Wife explained that she was reluctant to call the police because the one time she did, Husband's father (a retired detective) appeared on the scene and had a discussion with the responding police officers about "professional courtesy." Wife alleges that the police took no action in response to her complaint and thus she was dissuaded from calling them again. (Tr. 6/7/15 pgs.62–68).
After considering Wife's credible testimony on the subject of domestic violence, the Court finds that Husband's pattern of violent, controlling behavior, together with an unending and continuous pattern of verbal abuse, and his tendency to follow her, or have her followed, is sufficient to establish the family offenses of Stalking in the Fourth Degree and Harassment in the Second Degree.
Pursuant to Penal Law § 120.45, a person is guilty of Stalking in the Fourth Degree when "he or she intentionally, and for no legitimate purpose, engages in a course of conduct directed towards a specific person and knows or reasonably knows that such conduct is likely to cause reasonable fear or material harm to the safety of such person." The Court finds that the pattern of abusive and controlling behavior that Husband has engaged in, both during the marriage and after the commencement of this action, is sufficient to establish the family offense of Stalking in the Fourth Degree. See Matter of Renz v. Little, 137 AD3d 920 (2d Dept.2016) ; See also Charalambous v. Zohios, 125 A.D.3d 963, 1 N.Y.S.3d 862 (2d Dept.2015).
In addition to a finding that Husband committed acts which constitute Stalking in the Fourth Degree, the Court finds that those same acts also constitute the family offense of Harassment in the Second Degree. Pursuant to Penal Law § 240.26(3), a person is guilty of Harassment in the Second Degree when they "engage in a course of conduct or repeatedly commits acts which alarm or seriously annoy such other person and which serve no legitimate purpose." Here, the Court finds that the incidents detailed above are sufficient to establish the necessary course of conduct, and finds that Husband's conduct served no legitimate purpose other than to alarm and seriously annoy Wife. See Matter of Jordan v. Verni, 139 AD3d 1067 (2d Dept.2016) ; See also Matter of Pochat v. Pochat, 125 A.D.3d 660, 3 N.Y.S.3d 112 (2d Dept.2015).
A Temporary Order of Protection with "usual terms" was issued by this Court on or about June 11, 2013. While it is true that there have been no reported incidents of actual violence during the period in which Husband has been the subject of this Court's temporary order, Wife's concerns about Husband's reaction to this Decision after Trial are supported by the record. Accordingly, the Court finds it appropriate that Husband be enjoined by a one year Final Order of Protection, which shall be issued in conjunction with this Decision. See Matter of Sommella v. Kimble, 150 A.D.3d 1018, 2017 N.Y. Slip Op 03960 (2d Dept.2017). Among other provisions, this Order shall prohibit Husband from committing an unlawful act against Wife as defined in the Family Court Act. This Order shall not require Husband to "stay away" from Wife, or to "refrain from communication" only because there have been no reported incidents of violence during the time fame in which the Temporary Order of Protection has been in effect.
The Court notes that in addition to Wife's credible testimony regarding his inability to control his temper, the Court also had the opportunity to witness Husband's behavior during these proceedings. On various occasions throughout the trial, Husband would snicker, smirk, laugh and even engage in verbal outbursts. More than one trial break was needed to allow Husband to attempt to compose himself, often unsuccessfully. Wife testified that when their marriage began to deteriorate, Husband voluntarily enrolled himself in an anger management course, but abruptly stopped after two sessions. (Tr. 1/30/15 pg.98).
Accordingly, after a consideration of Wife's credible testimony, Husband's established history of impulse control issues, and his behavior exhibited before this Court, in addition to this one year Order of Protection, Husband is hereby ordered to complete an anger management program with Applied Behavioral Services , or an equivalent program that accepts his insurance. See Matter of Marth B. v. Julian P., 133 A.D.3d 418, 18 N.Y.S.3d 529 (1st Dept.2015). The A.B.S. program is 26 sessions which must be completed over a period of six months. See Matter of Coumba F. v. Mamdou D., 102 A.D.3d 634, 959 N.Y.S.2d 70 (1st Dept.2013). Any substitute program found by Husband, that accepts his insurance, must be at least equivalent to the A.B.S. program in duration. Husband is to provide enrollment information to Wife's counsel within 30 days of service of the Order of Protection and to provide a certificate to Wife's counsel upon the completion of the program.
Applied Behavioral Services is an anger management program located at 120 Stuyvesant Place, Staten Island, New York 10301.
Wife is hereby directed to serve Husband with the Order of Protection issued in conjunction with this Decision forthwith. The Temporary Order of Protection will remain in effect until such time as service of the final order is effectuated.
Equitable Distribution
The Domestic Relations Law recognizes that a marriage is an economic partnership. As such, during the course of a marriage, spouses share in both its profits and losses. When a marriage comes to an end, courts are required to equitably distribute both the assets and liabilities remaining from the marriage. See Fields v. Fields, 15 N.Y.3d 158, 905 N.Y.S.2d 783, 931 N.E.2d 1039 (2010). A trial court considering the factors set forth in the Domestic Relations Law has broad discretion in deciding what is equitable under all of the circumstances. See Krolikowski v. Krolikowski, 110 A.D.3d 1449, 973 N.Y.S.2d 502 (4th Dept.2013). Indeed, when it comes to the equitable distribution of marital property, Domestic Relations Law § 236(B)(5)(d)(13) authorizes the trial court to take into account "any other factor which the court shall expressly find to be just and proper." Consequently, the trial court has substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances. See Mahoney–Buntzman v. Buntzman, 12 N.Y.3d 415, 881 N.Y.S.2d 369, 909 N.E.2d 62 (2009). Equitable distribution does not necessarily indicate equal distribution. See Groesbeck v. Groesbeck, 51 A.D.3d 722, 858 N.Y.S.2d 707 (2d Dept.2008).
When making its determinations as to equitable distribution, the Court has considered the factors enumerated in DRL § 236. See Henery v. Henery, 105 A.D.3d 903, 962 N.Y.S.2d 719 (2d Dept.2013). In addition to any factor specifically considered in relation to a particular asset herein, the Court finds that: (1) this is marriage of moderate duration; (2) that Husband is the monied spouse in this action as the owner / operator of a well-established electrical contracting company; (3) that both parties are in good health; (4) that Wife currently resides in the marital home together with the two subject children of this marriage; (5) that Wife shall be entitled to an award of maintenance as delineated herein; (6) that Wife has made indirect contributions to Husband's success by providing support as a spouse and primary caretaker of the marital home; (7) that Wife has further made direct contributions to Husband's success as she was an integral part of Husband's business from its formation to her termination shortly before the commencement of this divorce proceeding; (8) that while Wife has a superior education, Husband still has a superior opportunity for financial growth as he has anelectrician license, union membership, and is the owner of a successful and established business; (9) that Husband has refused to pay the maintenance awarded by this Court for an extended period of time, threatening the welfare of Wife and the subject children by endangering their shelter and (10) that Husband wastefully dissipated equity that did, or could have, existed in the parties' investment property located on Amboy Road in Staten Island, New York, by abandoning the same and letting it fall into disrepair. Husband further dissipated equity in the former marital home by not paying the maintenance award of this Court resulting in an inability for Wife to pay the mortgage.
A. D.Electric.
It is undisputed that Husband's electrical contracting company "A. D. Electric" was formed during the marriage, and thus is a marital asset subject to equitable distribution. See Wasserman v. Wasserman, 66 A.D.3d 880, 888 N.Y.S.2d 90 (2d Dept.2009). Despite the fact that Husband is the sole shareholder of the business, and the named President, Wife testified that she was intricately involved in the formation, growth, marketing and development of this business. She testified that she was the business manager and had multiple responsibilities, including managing the books, interfacing with clients, supervising employees, managing payroll, and ensuring that supplies were ordered and received as needed.
Husband testified that when he created A.D. Electric he envisioned his Wife as a "partner" in the business. (Tr. 9/1/15 pg.182). Husband's testimony regarding Wife's involvement in the marital business did not differ greatly from Wife's testimony. Husband testified that she did "everything clerical" and was completely in charge of the banking and finances. Husband further agreed with Wife that her role when the business started was more prevalent, and that her duties were reduced as the business grew and hired more employees. Wife's involvement with the marital business ceased shortly before the commencement of this divorce proceeding when Husband fired her. Wife has since been replaced with a bookkeeper who earns approximately $30,000 a year, considerably less than the approximate $75,000 a year that was paid to Wife. Notably, this bookkeeper was hired in the later stages of the divorce trial.
By Order dated June 16, 2014, HFM Valuation & Consulting Services, Inc. was directed to conduct a forensic appraisal of A.D. Electrical Contracting. HFM Valuation issued a report which was marked for identification at trial, but never entered into evidence. On June 9, 2016 the parties stipulated that the report and testimony of the business evaluator would be unnecessary as they came to a resolution on the issue of the value of A.D. Electrical. Pursuant to a Stipulation offered by the parties on that date, they agreed that the value of A.D. Electrical would be set at the sum of $350,000. The parties further stipulated that the Court would apply the principles of equitable distribution set forth in the Domestic Relations Law, to this stipulated value. (Tr. 6/9/16 pg.5).
When determining the equitable distribution of business, the Court is mandated to consider both the direct and indirect contributions of the non titled spouse, in this case Wife. See Perdios v. Perdios, 135 A.D.3d 840, 24 N.Y.S.3d 680 (2d Dept.2016). After considering the testimony offered by both Husband and Wife, the Court finds that Wife was an integral part of the formation and growth of the business. While it may be true that her role decreased as the children were born, and her home duties increased, Husband admitted that she remained fully in charge of all of their personal and business banking, and maintained an important role until the commencement of this action. In addition to clear direct contributions to the business, Wife also made significant indirect contributions as it has been established that she was the children's primary caretaker throughout the course of the parties marriage, allowing Husband to work long hours.
After considering the totality of the circumstances presented, including the substantial direct and indirect contributions of Wife, and after consideration of the other factors indicated above, the Court finds that Wife is entitled to a 30% share of the value of the marital business, A.D. Electric. See Sutaria v. Sutaria, 123 A.D.3d 909, 2 N.Y.S.3d 124 (2d Dept.2014) ; See also Shah v. Shah, 100 A.D.3d 734, 954 N.Y.S.2d 129 (2d Dept.2012) ; Ventimiglia v. Ventimiglia, 307 A.D.2d 993 (2d Dept.2003). Accordingly, Wife is entitled to 30% of the stipulated value of the business ($350,000 ) which calculates to a distributive award in the amount of $105,000.
At trial and in her post trial summation, Wife requested that in lieu of her equitable share of the marital business that she be awarded the equity in the marital home. Accordingly, rather than directing payment of this award, it shall be credited to Wife in accordance with the equitable distribution of the marital home, as indicated below.
Marital Home
The marital home is located at * * * Drumgoole Road East in Staten Island, New York. Like the payment of maintenance, the marital home has become a constant point of contention throughout the course of this litigation. It is undisputed that the home was purchased during the course of this marriage and is thus marital property subject to equitable distribution. See Caracciolo v. Chodkowski, 90 A.D.3d 801, 937 N.Y.S.2d 60 (2d Dept.2011).
The parties co-habited in the former marital home until shortly after commencement of this divorce proceeding. During the course of their marriage, the mortgage, utilities and household expenses were paid out of profits from Husband's business, paid to the respective parties as salary. Wife approximated that the household bills were expensive, and in some months could reach as high as $11,000. As the parties' marriage deteriorated, Wife repeatedly requested that Husband leave the home. Finally after the police became involved on at least one occasion, Husband agreed that he would voluntarily leave. At Husband's request this "agreement" was reduced to a writing. Pursuant to the terms of this writing, Wife acknowledged that Husband was not "abandoning" his family. Husband, in return, agreed that he would continue to pay the bills associated with the home. This voluntary relocation was short lived, however, as Husband returned home soon thereafter. Husband was subsequently removed from the home by the police after the issuance of the Family Court Temporary Order of Protection in April of 2013.
On or about December 3, 2013, this Court issued its Pendente Lite Order. Pursuant to its terms, Husband was obligated to pay Wife the sum of $2,000 a month in child support and $2,837 a month in maintenance. The Pendente Lite Order further obligated Wife to pay for all of her own reasonable expenses, including the mortgage, upon the receipt of the court ordered support. However, as has been established herein, while Husband paid his child support with regularity, he refused to pay maintenance to his Wife. Accordingly, the monthly mortgage payments soon fell behind, and Wife and the subject children found themselves facing imminent foreclosure proceedings.
Despite Husband's refusal to pay maintenance, Wife took various actions throughout the proceedings in an attempt to save the marital home. Wife first filed contempt and enforcement applications against Husband. However, while these applications were effective in securing money judgments, Husband still refused to pay his monthly maintenance obligation. Thereafter, Wife sought assistance from the bank in the form of a loan modification. The bank agreed, and offered to lower her monthly payments from approximately $2,300 a month to a more reasonable sum of $1,359 a month. However, Wife credibly testified that this modification required Husband's signature, which he refused to give. (Tr. 7/31/15 pg.68). As Husband refused to sign the modification, the bank began foreclosure proceedings against the home.
After giving Husband various opportunities to either comply with his maintenance obligation, or agree to refinance the home, on March 2, 2016 Wife was appointed as attorney in fact for Husband so that a loan modification could be executed by her signature alone. This remedy, which was issued in the alternative to a finding of contempt, prevented the Marital Residence from being foreclosed upon. While this modification did obligate both parties for an additional ten years added to the end of their loan term, it only added approximately $6,000 to the total debt principal. (See Order dated 3/02/16; Jud. Not. 5).
During the course of these proceedings the parties paid for a court ordered neutral evaluation of the marital home. According to this evaluation, which was entered into evidence, (See Pl.Ex. 39), the home has an approximate value of $455,000. At or around the commencement of the action the principal balance of the parties mortgage was $207,145. Generally, this amount would decrease during the course of the proceedings resulting in more equity to be shared between the parties. However, in the present matter, Wife was unable to pay the mortgage as Husband refused to pay his maintenance obligation. Moreover, Husband further refused to sign documents that would reduce the mortgage payment to an amount that Wife could afford without maintenance. Accordingly, at or around the time of trial, the mortgage debt had increased to the sum of $225,670 (Pl.Ex.64). For the reasons set forth above, the Court finds that this increase in the mortgage debt, in the amount of $18,525 is attributable to Husband as marital waste. See Maggiore v. Maggiore, 91 A.D.3d 1096, 937 N.Y.S.2d 366 (3rd Dept.2012) ; S.M.S. v. D.S., 48 Misc.3d 1228(A) (Sup.Ct.Rich.Cty.2015). Accordingly, Wife is hereby awarded a credit in the amount of $18,525 towards her share of the equity in the marital home.
As the marital home was valued at the sum of $455,000, and the mortgage debt is $225,670, the available equity for this Court to distribute is $229,330. Under the circumstances of this case, and considering the factors indicated above, the Court finds that each party is entitled to one half (50%) of this equity as equitable distribution. In so ruling, the Court notes that equitable distribution should generally be as equal as possible when both parties contribute to the formation of an asset. See Repetti v. Repetti, 147 AD3d 1094 (2d. Dept.2017). Accordingly, each party is entitled to a distribution in the sum of $114,665. However, as indicated above, Wife is entitled to a credit in the amount of $18,525 for Husband's wasteful dissipation of equity. Accordingly, Wife's adjusted equitable share of the marital home is $133,190 and Husband's adjusted equitable share is $96,140.
During trial and in her post trial summation, Wife requests that in lieu of being granted a share of Husband's business, that she be granted the entirety of the equity in the marital home. In his Statement of Proposed Disposition, Husband requested the sale of the home, but with the proceeds going to Wife "up to the sum of $450,000. " In return, Husband requested that he be allowed to "sole and exclusive possession of A.D. Electrical Contracting and no maintenance award." (See S.P.D. 11/18/14).
However, by the end of trial, Husband had changed his position. Notably, his Statement of Proposed Disposition was prepared while Husband was represented by his second attorney in this action. Now, under the counsel of his third attorney, Husband argues in his post-trial summation that the house should be sold on the open market, and the proceeds divided equally between the parties.
After considering the totality of the circumstances, including the equitable distribution factors set forth above, and particularly the presence of minor children, the Court finds that Wife should be given the right to buy out Husband's share of the equity in the marital home. In this regard, the Court grants Wife's application to apply her $105,000 distributive award from A. D.Electric as a credit against Husband's interest in the marital home. However, as Husband's share of the marital home is only $96,140, he shall still owe Wife the sum of $8,860. This Distributive award shall be paid within 90 days of service of a signed Judgment of Divorce on Husband.
In accordance with this Decision, Wife's counsel is hereby directed to prepare a Deed transferring Husband's interest in the marital home to Wife. Husband is directed to comply with this transfer in any way required, including the signing of any necessary documents. Any costs associated with this transfer shall be paid by Wife.
Regardless of this deed transfer, it is undisputed that Husband remains obligated under the mortgage debt associated with the marital home. As Wife will have exclusive ownership, use, and occupancy of that property, she shall be solely responsible for the payment of the mortgage and shall hold Husband harmless for payment of the same. See T.S v. J.S., 54 Misc.3d 1202(A) (Sup.Ct. Orange Cty.2016).
Upon the payment of all maintenance arrears established herein, Wife shall take all reasonable steps to refinance the property, or otherwise remove Husband's name from the mortgage. Wife's obligation to take steps to remove him from the mortgage is being connected to the payment of arrears because those arrears will be necessary to put Wife in a financial position where she will be able to enter into a fair refinancing agreement. Notably, Wife testified that the bank informed her that they would consider another modification at the end of the divorce. (Tr. 6/9/16/ pg.75).
Amboy Road Property
After a few years of marriage, and acknowledging that the electrical business was growing at an accelerated rate, the parties' decided that it would be best to relocate the business out of the marital home. Accordingly, the parties jointly purchased a parcel of real property located at * * * * Amboy Road, in Staten Island, New York ("The Amboy Road Property"). The property was zoned for mixed residential and commercial use, and the parties' stated goal was to relocate Husband's electrical business to that location.
To purchase the property, the parties obtained funds totaling $280,000 from Wife's father, J. D.. The Amboy Road property was unfinished at the time of purchase and Husband further stripped it with the intention of remodeling it for his business' use. Unfortunately, after initially moving certain business operations (including equipment storage) to the property, the parties' relationship soured, and Wife began the process of getting divorced. As a result, the Amboy Road Property was effectively abandoned, resulting in it becoming a blight to the community and an eyesore to neighbors. Despite the intended use for the property, and the benefit gained by Husband from using it for equipment storage, Husband refused to maintain the property resulting in various fines and Environmental Control Board (ECB) violations. In or around January of 2014, Wife made an application to compel the sale of the Amboy Road property in an effort to stave off additional fines and further deterioration of market value. That initial application was denied for the reasons set forth in this Court's Short Form Order dated April 29, 2014.
Throughout this litigation the Amboy Road property remained a point of contention. As Husband consistently failed to pay maintenance and other Court ordered obligations, both parties looked to this vacant real estate as a source of funds. However, Wife consistently maintained that they should not keep the funds obtained from any sale because they owed the purchase price to her father. Husband, on the other hand, took the position that the money obtained from Wife's father was a gift, rather than a loan, and that any sale proceeds should be used to fund his obligations and this litigation. Husband repeatedly indicated that he had no intention to pay Wife's father back, despite the fact that he had previously indicated that he would in a number of text messages.
In early 2014, the issue of whether the down-payment made by Wife's father was a gift, or a loan, came to a head when Wife's father filed a breach of contract action against both parties. See J.D. v. A. D., et.al., Rich. Cty Supt Ct. Index No. 1* * * */2014. That breach of contract action was initially venued before a different Supreme Court Justice, but was later transferred into this trial part for adjudication as a related action. An expedited trial was held in the breach of contract action after the conclusion of the divorce trial. A written Decision was issued by this Court on or about February 27, 2017 wherein the Court found that the money given by Wife's father was a loan, not a gift. See J.D. v. A.D. et. al., 2017 N.Y. Slip Op 50261 (Sup.Ct.Rich.Cty.2017). Judgment was entered in that related action on April 21, 2017. The resulting marital debt created by this loan is addressed at length below. (See "Marital Debt")
On or about November 24, 2014, Wife renewed her application to sell the Amboy Road Property in light of Husband's longstanding and continuing failure to comply with his support and counsel fee obligations. Wife also established that Husband continued to fail to pay real estate taxes, and that the property was amounting considerable fines. Upon reconsideration, the Court granted Wife's application and granted her authority to sell the property with the proceeds to be placed in escrow pending this Decision, and the Decision in the related contract action initiated by her father. (See SFO 11/24/14).
The property at * * * * Amboy Road was sold on March 4, 2016 and resulted in net proceeds of $209,973.83 which are currently being held in escrow by Wife's attorney. (Pl.Ex.77). As of the closing, $20,452.22 was due and owing for a real estate lien and $6,569.02 in current real estate taxes. Husband failure to complete the work he began on these premises and failure to otherwise maintain the property resulted in ECB violations, sanitation charges, and emergency repair liens totaling approximately $26,701. Significantly, a considerable number of these liens were electrical violations which Husband could have easily avoided or cured as a licensed electrician. When Wife was questioned as to why she believed that Husband failed to make even these relatively easy repairs to maximize their sale return, Wife answered with a single word "spite." (Tr. 9/1/15 pg.13).
The Court finds that Husband's failure to make even basic repairs to the property, and maintain it, caused the wasteful dissipation of this marital asset. See Shkreli v. Shkreli, 142 AD3d 546 (2d Dept.2016) ; See also, Kahn v. Kahn, 221 A.D.2d 320, 633 N.Y.S.2d 382 (2d Dept.1995). Husband's failure to maintain the property caused additional costs in the amount of approximately $63,000. (Tr. 6/9/17 pg.100). Notably, due in part to Husband's failure to maintain the property, the proceeds of the sale are now insufficient to satisfy the loan given by Wife's father ($280,000, principal excluding interest). At trial, both parties, and the Attorney for the Subject Children, sought to receive monies from the net sale proceeds. Wife seeks a portion of the funds held in escrow in clear contradiction to the fact that she has always acknowledged that she owes that money to her father. The distribution of the funds located in Plaintiff's attorneys' escrow account is addressed below. (See "Marital Debt.")
Marital Debt
For the reasons set forth in this Court's Decision after Trial dated February 27, 2017, this Court found the parties herein to be jointly and severally liable under applicable contract law for the repayment of the loan made by Plaintiff's Father J. D.. That loan had a principal amount of $280,000 plus statutory interest, resulting in a combined judgment in the amount of $383,941.62. (See Judgment dated 4/21/17). As this debt was incurred during the marriage, it is now this Court's responsibility to equitably distribute the same. See Serao v. Bench–Serao, 149 A.D.3d 645, 2017 N.Y. Slip Op 03135 (1st Dept.2017) ; See also Madu v. Madu, 135 A.D.3d 836, 24 N.Y.S.3d 678 (2d Dept.2016).
After consideration of the applicable factors indicated above, this Court finds each party equally responsible for the initial amount of the marital debt in the amount of $280,000. In making this decision, the Court notes that these parties equally solicited this money from Plaintiff's father and benefitted from the purchase of the Amboy Property. Moreover, this ruling supports the general proposition that equitable distribution should be as equal as possible. See Steinberg v. Steinberg, 59 A.D.3d 702, 874 N.Y.S.2d 230 (2d Dept.2009) ; See also Adjmi v. Adjmi, 8 A.D.3d 411, 779 N.Y.S.2d 80 (2d Dept.2004). The Court further notes that Plaintiff's Father is the only party involved in this action who did not contribute to the demise of this marriage, or the resulting financial consequences. In addition, he has unjustly been forced to wait at least four years, and incur substantial legal fees, in order to recover what was rightfully his money.
As indicated above, the Amboy Road Property has been sold, and the proceeds, amounting to approximately $209,974, are currently being held in escrow. As these proceeds are the only liquid assets identified in the record, the Court finds it appropriate that Plaintiff's father be granted access to them before recovery by anyone else, including the parties herein. As the parties have been found to be jointly responsible for the principal amount of this debt, Wife's attorney is hereby ordered to release the monies held in escrow to J. D.. One half of these funds shall be credited as a payment from each party in partial satisfaction of this $280,000 marital obligation.
It is undisputed that the amount currently being held in escrow falls short of the amount owed under this Court's Decision and the resulting Judgment. In addition to this deficiency, the Court granted Plaintiff's Father statutory interest, costs, and fees totaling $103,941.62. (See Judgment dated 4/21/17). While this Court has found that each party equally benefitted from the loan at the time it was made, it does not necessarily follow that they are each equally responsible for the current deficiency and interest. Equitable distribution does not necessary mandate an equal distribution. See Fairchild v. Fairchild, 149 A.D.3d 810, 51 N.Y.S.3d 613, 2017 N.Y. Slip Op 02776 (2d Dept.2017).
As indicated above, this Court has found that Husband has committed acts of marital waste with respect to the Amboy Property, which reduced the equity therein, and contributed to the current deficiency. The Court notes that some of the improvements were electrical work that Husband could have performed at little or no cost. On the other hand Wife, while of limited means, made efforts to clean up the property and cut down the weeds to avoid further municipal fines and make the property more appealing for sale.
Neither party conducted an analysis of the equity that would have been in the house had it been sold in a finished state, however Wife credibly testified that it certainly would have been worth more, not less, than they borrowed to purchase it.
In addition to marital waste committed by Husband, the simple fact that Plaintiff's father was required to file a breach of contract action resulted in additional debt. In its Decision after Trial, this Court found that Plaintiff's Father was entitled to statutory interest running from the date of breach. Accordingly, the necessity of filing a breach of contract action turned a $280,000 marital debt into a $383,942 marital debt. While Wife was named as a defendant in the action, she made it clear from the onset that she was not contesting that the transfer of money from her father to the parties was a loan. Accordingly, the necessity of a breach of contract trial falls squarely on Husband's shoulders. However, as neither party made an effort during the course of the marriage to repay the loan, Wife is not without blame. Accordingly, after consideration of the totality of the circumstances, this Court finds Husband should bear a larger burden of the deficiency and interest after the money held in escrow is applied to the debt. For these reasons, and after consideration of the factors indicated above, Husband is hereby ordered to pay 75% of the deficiency and interest with the remaining 25% attributable to Wife. The Court finds that this unequal distribution is equitable under the circumstances. See Gafycz v. Gafycz, 148 AD3d 679 (2d Dept.2017) ; See also Ropiecki v. Ropiecki, 94 A.D.3d 734, 941 N.Y.S.2d 650 (2d Dept.2012) ; Ashmore v. Ashmore, 92 A.D.3d 817, 939 N.Y.S.2d 504 (2d Dept.2012).
Very little (if any) trial testimony was spent by either party discussing any other debts that were incurred during the course of this marriage that would be subject to equitable distribution. Accordingly, the Court finds that there is general failure of proof by both parties in this regard. See Fu Kuo Hsu v. Hsuan Huang, 149 A.D.2d 405, 542 N.Y.S.2d 972 (2d Dept.1989). When determining equitable distribution, both parties have an affirmative burden to establish the existence of an asset, or debt, that is subject to equitable distribution, and the value thereof. See Barnhart v. Barnhart, 148 AD3d 1264 (3rd Dept.2017). Here, both parties failed to do so with any specificity. Accordingly, each party shall be responsible for the repayment of debts titled in their own names.
Bank and Investment Accounts
Throughout this trial, both parties spent considerable time discussing marital bank and / or investment accounts. However, much of the testimony and evidence that was submitted was not specific as to time or value. Husband testified on various occasions that he knew virtually nothing about how the marital finances were handled. Husband indicated that he left that responsibility to Wife. Wife acknowledged that both of their respective pay checks were deposited into a variety of joint and personal checking and savings accounts and that the money was subsequently used for a variety of purposes, many of which she could not specify. Like Husband, Wife's recollection of the parties' finances was fractured and not specific.
Husband credibly testified, and offered evidence, sufficient to establish at least three transfers that occurred post commencement, that he was not aware of, and did not benefit from. These transactions, which were documented by Defendant's exhibit BBB, established that in September of 2014 and January of 2014 (both post commencement) Wife withdrew the combined sum of $12,000 from an investment account, and that Husband did not receive his share of those funds. (Tr. 12/18/15 pgs. 28–30). It was further established that Wife withdrew $5,000 from a "Fidelity" account and that Husband also did not receive his share of those funds. Accordingly, the Court, having credited this testimony, finds that Wife owes Husband a distributive award in the amount of $8,500 representing one half of this unauthorized transfers.
It was further established during trial that Husband had a marital investment account titled in his name through TD Ameritrade. Husband credibly testified that his account was liquidated by Court Order dated June 16, 2014. At the time of liquidation, this account contained approximately $20,000. As stated in the June 16th Order, the liquidation of this account was made necessary by Husband's failure to pay his maintenance and counsel fee obligations. Accordingly, Husband was directed to liquidate this account, and use $6,927 of it to pay arrears. It is unclear from the trial record what became of the rest of the money, but it is undisputed that the account was marital in nature, and thus that Wife had a claim to one half of the funds Husband used.
Husband made an admission on the record that the account contained "at least" $20,000, while Wife argued that she believed it contained at least $25,000.
After consideration of a totality of the circumstances, including the evidence and testimony offered at trial, and after considering the equitable distribution factors set forth above, the Court finds that Husband's T.D. Ameritrade account should be distributed evenly between the parties. The Court credits Husband's admission that the account contained at least $20,000 when he liquidated it, and hereby award's Wife a distributive award in the amount of $10,000. When the distributive award owed by Wife is deducted from this amount, Husband owes Wife a distributive award in the amount of $1,500 ($10,000—$8,500 = $1,500 ). This distributive award shall be paid within 90 days of service of a signed Judgment of Divorce.
Personalty
Neither party spent a significant amount of time addressing the issue of personal property at trial. However, Husband established that when he left the marital home he left behind certain tools that he used for his business, including a tile cutter. Wife testified that she has used the tools to do home repair projects, but acknowledged that Husband primarily used them for his business. When asked why she did not return the tools upon his request, Wife testified that she refused upon the advice of counsel. In addition to tools, Husband has asserted throughout the course of this Divorce, and then again in his post trial summation, that certain business related documents may still be located in the marital home.
After consideration of the equitable distribution factors indicated above, and in consideration of the fact that Husband is the primary wage earner in this family, Wife is hereby directed to return Husband's employment related tools (not basic household tools) so that they can be used for his business. Counsel are hereby directed to confer with one another regarding the return of these tools. The Court notes that this was suggested to the parties during the course of the trial, however there is no indication that counsel ever actually resolved the same. (Tr. 6/10/16 pgs. 83–84). In addition to any business related tools, Wife is hereby directed to exchange any business related documents that may remain in the house. In the event that no such documents exist, Wife is to provide an Affidavit to Husband's counsel indicating the diligent search she made for the documents. See Flores v. Velez, 111 A.D.3d 599, 974 N.Y.S.2d 134 (2d Dept.2013).
Other than tools, both parties shall be entitled to keep whatever personalty they currently have in their possession. Wife shall be entitled to keep the furnishings in the marital home as she has been granted possession and ownership of the same. During the course of this divorce litigation, it was established that the parties had possession of a safety deposit box wherein they stored cash. Both parties were directed to inventory the same as part of the discovery process. In the event that any funds remain in that box, the parties are hereby directed to split them equally.
Maintenance
Wife makes a claim for maintenance in this divorce proceeding. This claim was first raised in her Summons and Compliant which was filed on or about March 21, 2013. In her Statement of Proposed Disposition, Wife seeks maintenance in the sum of $5,000 per month for an unspecified period of time. However, by the time the present trial ended, Wife's application for maintenance was modified. In her summation after trial, Wife seeks the sum of $2,146 a month, again for an unspecified period of time. Husband opposes Wife's claim for maintenance, arguing that she is capable of supporting herself.
In calculating this number, Wife relied upon the mathematical formula set forth in DRL § 236(B)(6) as recently amended. Wife acknowledges that the "post divorce maintenance calculator" is not binding on this Court, as it is not the applicable law for this case, but offers that it should be used as "guidance" in determining what would be reasonable under the law as it existed when this action was commenced.
During the course of these proceedings Wife was awarded pendente lite maintenance in the sum of $34,047 a year. Husband's failure to abide by his court ordered maintenance obligation has resulted in Wife filing at least four enforcement and contempt applications, one of which was referred for decision herein.
While this Decision is being issued in 2017, this action was commenced well before the 2017 statutory revisions regarding awards of post trial maintenance. Accordingly, in determining whether to award spousal maintenance under DRL § 236(B), the Court must consider the statutory factors in existence when this case was commenced. After consideration of these factors, the factors deemed most relevant to the present matter are (1) the comparative income and assets of both parties; (2) the present and future earning capacities of both parties; (3) the ability of the party seeking maintenance to become self supporting; (4) the standard of living established by the parties; (5) the equitable distribution awarded to each party and; (6) the comparative age of the parties. See DRL § 236(B)(6) ; Carroll v. Carroll, 125 A.D.3d 710, 3 N.Y.S.3d 397 (2d Dept.2015) ; Naik v. Naik, 125 A.D.3d 734, 3 N.Y.S.3d 405 (2d Dept.2015).
"The overriding purpose of a maintenance award is to give the [receiving] spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting." Sirgant v. Sirgant, 43 A.D.3d 1034, 842 N.Y.S.2d 483 (2d Dept.2007). When determining if a party will be able to support themselves, a simple subsistence standard of living is not what the legislature contemplated. See Hartog v. Hartog, 85 N.Y.2d 36, 623 N.Y.S.2d 537, 647 N.E.2d 749 (1995). Rather, a party is entitled to an award of maintenance sufficient to support a semblance of the standard of living that they enjoyed during the marriage. See Golden v. Golden, 98 A.D.3d 647, 949 N.Y.S.2d 753 (2d Dept.2012).
Wife is currently 38 years old and in good health. When the parties started dating Wife was employed as a teacher. Both Husband and Wife credibly testified that they made a joint decision that Wife should no longer work at or around the time that their daughter N.D. was born. However this was short lived, as soon thereafter the parties opened A.D. Electric, and Wife became employed by that entity.
During the marriage, Wife was employed by Husband as a bookkeeper in the marital business "A. D. Electric." Wife credibly testified, and the evidence supports, that during certain years of their marriage Husband allocated more of the business profits as salary to Wife than he did for himself. Wife testified that she would receive an annual salary of approximately $75,000 while Husband would allocate himself a salary of approximately $60,000. Wife testified that the purpose of this allocation had less to do with the amount of work that they each did, and more to do with Workers' Compensation Insurance percentages and taxes. Wife's employment with A.D. Electric ended at or around the time the parties started contemplating a divorce and Husband did notimmediately replace her. As a result, this Court found that the imputation of Wife's income to Husband was appropriate for the purpose of calculating pendente lite child support and maintenance. (See PL Decision Dated 12/2/13)
Throughout the course of the divorce proceeding Wife was reliant upon Husband for financial support. However, as Husband did not abide by his court ordered maintenance obligation, Wife was forced to obtain employment with a local realtor as a part time real estate agent. Wife approximated that she earned $6,000 in 2013 and $15,000 in 2014 from real estate commissions. While Husband attempted to challenge these figures on cross examination, and Wife admitted that her figures were approximations, the undisputed fact is that Wife was earning considerably less than her Husband. It is further undisputed that Wife was only selling real estate part time, as she was also matriculated as a full time Masters student at the College of Staten Island. During the course of the proceedings Wife also attempted to open a "nutritional consulting" business, but she credibly testified that she didn't earn any money from that failed venture.
In any event, by the end of this lengthy trial, Wife's employment situation had changed considerably. As of the date of Wife's post trial summation, she has graduated from college with a Masters degree in Clinical Mental Health Counseling. Wife obtained this degree at a per semester cost of $5,500. Wife's tuition was paid for by her father, who was "ambiguous" about being paid back. (Tr. 6/9/16 pg. 21). The record supports a finding that Wife's parents have been forced to provide her financial assistance in many forms throughout these proceedings.
Since graduating, Wife has obtained employment in her chosen field as a Clinical Mental Health Counselor with an entity known as S.L. Support Services earning $18.50 an hour. In addition, Wife has obtained supplementary employment, every other weekend, as a therapist with an entity known as R. and Associates earning $30 an hour. Wife testified that on a typical weekend she earns between $240 and $300. Prorated over a period of 26 weekends Wife earns, or is capable of earning, between $6,240 and $7,800 from her weekend sessions. Wife's employment with these firms is currently part time, and "fee for service," meaning that Wife only gets paid when they have a client available for her. Accordingly her hours and salary vary from week to week. While it is unclear if Wife's plan is to continue selling real estate part time, it is undisputed that she is licensed and able to do so. Wife testified that in her best year she earned around $15,000.
At trial, Wife introduced various tax returns and financial documents into evidence. The most recent tax return provided (Pl.Ex.79) is from 2015 and reports that Wife earned the sum of $1,000 from her employment as a part time real estate agent. Wife also provided a recent pay stub (Pl.Ex.78) which indicates that she currently earns $18.50 an hour from S.L. Support Services. According to this pay stub, which covers a period of two weeks, Wife earned the gross sum of $907. Wife testified that her hours vary from week to week and accordingly her salary varies, but utilizing the pay stub provided, prorated over the course of a year, Wife currently earns approximately $23,582 gross from her primary employment.
When all of her current sources of income are compiled it appears that Wife is currently capable of earning a salary somewhere in the vicinity of $44,822 a year, gross. However, as Wife credibly testified, each of her available sources of income are inconsistent, as she only works as a counselor when they have a client available for her, and she only earns real estate income if she manages to sell a house. As indicated above, while Wife has earned $15,000 in "good" real estate years, she only earned $1,000 in 2015. Accordingly, after consideration of all the relevant factors, the Court finds that Wife is capable of earning an average imputed gross salary of $45,000 based upon her current employment, her education, certifications, skills and demonstrated earning potential. See Repetti v. Repetti, 147 AD3d 1094 (2d Dept.2017).
$6,240(R. and Associates) plus $15,000(real estate sales) plus $23,582(S.L. Support Services) equals $44,822.
Husband is 44 years old and in good health. Husband's income is equally difficult to calculate. It is undisputed that Husband is the sole shareholder and President of his own electrical contracting business "A. D. Electric." Accordingly, Husband is capable of adjusting his own salary within the parameters of how much net profit his business generates in a calendar year. During trial, various corporate tax returns were offered into evidence. In addition to corporate tax returns, Husband's individual tax returns were offered. According to his 2015 tax return Husband earned gross income of $68,874 from his employment with A.D. Electric, with an adjusted gross of $56,243.
In addition to tax returns, Husband was required to file a sworn Statement of Net Worth in compliance with 22 NYCRR 202.16. According to his initial Statement of Net Worth, which was signed in or around May of 2013, Husband claimed monthly household expenses which totaled to $11,621.66. This sum, when prorated over the course of a year amounts to annual expenses of $139,452. Notably, as expenses are generally paid with post tax income, this amount is based upon Husband's net income, as opposed to his gross income. Remarkably, when questioned at trial regarding the accuracy of this document, Husband claimed that he copied the numbers in hissworn Statement of Net Worth from his Wife's Statement of Net Worth, which she had inadvertently left out in the marital home. (Tr. 9/1/15 pgs.66–67). In any event, this figure supports Wife's argument that when they lived together, and Wife was employed by Husband, the marital business was capable of supporting an affluent lifestyle.
Wife argues that Husband's income, for the purpose of both child support and maintenance, should be calculated in the vicinity of $142,395 a year. Wife argues that this sum is fair, as it represents what both parties jointly earned the last time they were both employed in the marital business. (See Pl. Post Trial Summation pg.28).
After consideration of the testimony and evidence offered at trial, this Court finds Husband's account of his income to be not credible. In addition to crediting Wife's allegation that Husband is capable of manipulating his own income, the Court was persuaded by the testimony of Husband's father who admitted that Husband was using his bank account to deposit "cash" payments that should have been made to the business. Moreover, Husband openly admitted that some of his electrical work is paid for in unreported cash that he deposits directly into his personal bank account, or his pocket. It is clear to this Court, after a review of the testimony and evidence offered at trial, that Husband has intentionally reduced his salary in an effort to justify his non-payment of pendente lite support. The Court notes that Husband has voluntarily, but routinely, paid varying sums of money to his parents each month, and has remained consistent with his child support payments, but has simply refused to support his Wife.
After considering the evidence and arguments set forth by both parties at trial, the Court finds it appropriate to impute an annual salary of $135,000 to Husband. This amount is reflective of the fact that Husband has been less than forthcoming regarding his actual income, which would necessarily include all "cash" payments, and the payments that he secreted through his father's bank account. However, it also credits, to some degree, Husband's allegation that his business has undergone a downturn in profits since the commencement of this divorce proceeding. Notably, this amount is far below the amount of income that would be required to support the parties' established standard of living during the marriage. As indicated above, according to both parties' Sworn Statements of Net Worth, Husband's business supported monthly expenses of $11,622 ($139,464 a year)just before the commencement of this action. Husband has not established why his business is no longer capable of earning the same amount of income it once earned. Accordingly, the Court finds that the sum of $135,000 is reflective of Husband's established earning capacity in a less than stellar business year. See Matter of Watson v. Maragh, 147 AD3d 769 (2d Dept.2017) ; See also Matter of Scheppy v. Kelly–Scheppy, 145 AD3d 903 (2d Dept.2016).
The Court's primary concern in deciding whether to award post trial maintenance in this matter is whether or not Wife is self supporting. See Hartog v. Hartog, 85 N.Y.2d 36, 623 N.Y.S.2d 537, 647 N.E.2d 749 (1995) ; See also Gass v. Gass, 137 AD3d 423 (1st Dept.2016).Wife credibly testified at trial that she has always been "hard working." Wife started working when she was sixteen years old and has remained employed ever since. Before the parties were married Wife was employed as a teacher, however she gave that career up to assist Husband in growing his electrical business. During the course of the parties' marriage, Wife earned an inconsistent salary, however in her best years she earned approximately $75,000. In his post trial summation, Husband argues that this amount should be imputed to her, however, the Court finds that Wife's income during her employment in the marital business is not a good indicator of her earning potential, as that salary was controlled by Husband, and purposefully manipulated for Workers Compensation and tax purposes.
It is commendable that unlike Wife has taken considerable steps to improve herself during the course of this proceeding. Despite the stress of this divorce, Wife has accomplished the feat of graduating from college and earning a Master's Degree. She has further gone from working part time as a real estate agent to working two jobs in her chosen field. Accordingly, after consideration of the facts, the Court finds that Wife has placed herself in a position where she is capable of supporting herself. However, this does not end the Court's analysis, as the second necessary inquiry is a determination of what standard of living her current income can support. See Summer v. Summer, 85 N.Y.2d 1014, 630 N.Y.S.2d 970, 654 N.E.2d 1218 (1995) ; See also, Bean v. Bean, 53 A.D.3d 718, 860 N.Y.S.2d 683(3rd Dept.2008).
Wife credibly testified that the parties enjoyed a lavish lifestyle during the "good" years of their marriage. Even at the early stages in their marriage, when the business was just starting, the parties were capable of affording household help, including a nanny and a housekeeper. Throughout the marriage the children and the parties enjoyed a beautiful spacious home. They only ate organic foods and butcher cut meats. The parties drove luxury cars including a Mercedes. They all wore designer clothes, including the children. Wife credibly testified that she had a personal shopping assistant at Nordstrom's department store and that she was able to purchase anything she wanted. Husband would also present Wife with lavish gifts. For example in December of 2012, Husband bought Wife a Christmas gift of jewelry that consisted of 20 karats of sapphires and diamonds. Husband testified that Wife's engagement ring cost him $15,000.
As the parties marriage deteriorated, so did Wife's lifestyle. During the course of this proceeding Wife consistently came to Court seeking emergency relief due to the fact that the utilities were about to be shut off, or in some cases were already shut off. Wife's Mercedes was repossessed for non-payment. The mortgage was in danger of foreclosure such that Wife was forced to make an emergency application to modify the same. Finally, Wife testified that she no longer purchased organic food, because she was forced to seek public assistance in the form of food stamps and child health plus subsidized health care. Wife also testified that she consistently had to borrow money from friends and family to pay her bills. Wife credibly testified that she owes her relatives between "$10,000 to $15,000 ". (Tr. 6/9/16 pg.64).
After consideration of the above factors, the Court finds that Wife is entitled to an award of durational maintenance. See Samimi v. Samimi, 134 A.D.3d 1010, 22 N.Y.S.3d 515 (2d Dept.2015).However the unique circumstances of this case make a proper amount and duration difficult to calculate. Generally, "the amount and duration of spousal maintenance is an issue committed to the sound discretion of the trial court and each case is to be resolved upon its own unique facts and circumstances." Brody v. Brody, 137 AD3d 830 (2d Dept.2016).
As previously noted, Wife has made great improvements to her employability throughout the course of this litigation, moving herself from a position where she was wholly dependent on Husband, to a position where she has become self-supporting. However, despite the Court's Order mandating Husband to pay temporary maintenance, Wife was required to struggle to support herself while working and attending college. Wife was forced to obtain public assistance, liquidate retirement accounts, borrow money from her parents, and repeatedly ask this Court for emergency relief simply to survive. Accordingly, under the unique circumstances of this case, the Court finds that a two-step graduated maintenance schedule is appropriate. See Sansone v. Sansone, 144 AD3d 885 (2d Dept.2016) ; See also Hughes v. Hughes, 79 A.D.3d 473, 912 N.Y.S.2d 206 (1st Dept.2010) ; Worsnop v. Worsnop, 204 A.D.2d 624, 612 N.Y.S.2d 626 (2d Dept.1994).
The first step of this maintenance schedule shall be retroactive in nature, and set in the amount dictated by this Court in its Pendente Lite Decision, to wit, the monthly sum of $2,837. Upon reconsideration, and after a full evidentiary trial, this Court finds that the pendente lite maintenance award was appropriate at the time when it was ordered and should therefore be enforced. Notably, the income figure assigned to Husband in the Pendente Lite Decision ($138,495 ) is only slightly more than the income being imputed to him at this juncture ($135,000 ). Husband's failure to pay pendente lite support resulted in a great hardship to Wife, that has been documented throughout the course of this proceeding. The Court finds that had Husband paid the support previously ordered, Wife would have been in a far better financial position than she is now. Accordingly, the Court hereby enforces its pendente lite award and the arrears accumulated there-under (see Contempt below). Moreover, the Court finds that this maintenance award shall be extended retroactively back to the filing of Wife's Summons and Compliant in accordance with applicable law. See McKay v. Groesbeck, 117 A.D.3d 810, 985 N.Y.S.2d 686 (2d Dept.2014). Husband shall therefore be responsible for the payment of maintenance in the amount of $2,837 from the date of filing, March 21, 2013 to the date of this Decision.
The second step of the maintenance award shall be prospective in nature. While it is true that Wife has worked to become self-supporting, she has done so at the expense of the luxurious lifestyle that she once enjoyed. Wife has traded organic food for food stamps, and has lived under the constant threat of foreclosure and utility "turn off" notices. Moreover, as Wife has indicated, her current employment is tenuous and inconsistent. While Wife admittedly has three jobs, the real estate sales position is commission based, and the two counseling positions are "pay for service." Wife credibly testified at trial that if a house does not sell and there are no therapy clients referred to her, she will earn nothing. Under these circumstances the Court finds a prospective maintenance award of limited duration to be appropriate to afford Wife a financial cushion until she can establish herself in her chosen field, secure a client base, and develop employment relationships that will result in a fixed and consistent income. Accordingly, the Court finds it appropriate that Wife be awarded a monthly maintenance award in the sum of $1,500 for a period of one year ($18,000 annual) running from the date of this Decision. This prospective maintenance award shall be paid in weekly sums of $346. This additional money each month, will assist Wife to maintain a semblance of the lifestyle that she enjoyed during the course of the marriage.
This award shall be taxable to Wife and tax deductible to Husband. Wife's maintenance award will terminate upon her remarriage, or the death of either party. The payment of the retroactive maintenance mandated herein shall be addressed below. (See "Retroactivity ").
Child Support
The Child Support Standards Act sets forth the method by which the "presumptively correct" amount of child support can be calculated. See Domestic Relations Law § 240 ; Family Court Act § 413. A three step process is required by the relevant statutes. The first step requires a calculation of the "combined parental income" up to a statutory cap, currently $143,000. See N.Y. Soc. Serv. Law § 111–i(2)(b). The second step requires the Court to multiply the combined parental income by a specified percentage based upon the number of children. The third step is only triggered when the combined parental income exceeds the statutory cap. Once the statutory percentage is applied to the parties' combined income, and each parties' pro rata contribution to that amount is determined, the resulting sum is the presumptively correct amount of child support.
As indicated above, the Child Support Standards Act (CSSA) presumptively results in the correct amount of child support to be awarded to the custodial parent. As there are two children of this union, the correct statutory percentage to be applied to the combined parental income is 25%. See Turco v. Turco, 117 A.D.3d 719, 985 N.Y.S.2d 261 (2d Dept.2014). Application of this percentage to the combined parental income will provide the appropriate level of support to meet the basic needs of the subject child.
When determining child support under the guidelines, the Court is directed to begin its analysis by considering the income as it was, or should have been, reported on the parties' most recent tax return. See DRL § 240(1–b)(b)(5)(i) ; see also, Matter of Lynn v. Kroenung, 97 A.D.3d 822, 949 N.Y.S.2d 144 (2d Dept.2012). However, where appropriate, the Court is able to use more recent income information, such as recent employment information from a tax year not yet completed. See Matter of Daily v. Govan, 136 AD3d 1029 (2d Dept.2016) ; See also Matter of Moran v. Grillo, 44 A.D.3d 859, 843 N.Y.S.2d 674 (2d Dept.2007). A parent's child support obligation is determined by his or her ability to support the child, and not necessarily upon tax documentation alone, especially where that tax documentation is incomplete, or inaccurate. See Matter of Azrak v. Azrak, 60 A.D.3d 937, 876 N.Y.S.2d 439 (2d Dept.2009). The Court has the authority to impute income to either, or both parties, based upon their established earning history, or current earning potential. See Matter of Gao v. Ming Min Fan, 148 AD3d 897 (2d Dept.2017) ; See also Gafycz v. Gafycz, 148 AD3d 679 (2d Dept.2017).
Here, for the detailed reasons set forth above (See "Maintenance") the Court has found it appropriate to impute an annual salary of $45,000 to Wife and an annual income of $135,000 to Husband. From these gross income figures, the Court is directed to subtract statutory deductions of FICA, Medicare, and local (N.Y.C) tax that were "actually paid." See Khaira v. Khaira, 93 A.D.3d 194, 938 N.Y.S.2d 513 (1st Dept.2012). According to Wife's 2015 tax return, she only earned the sum of $1,000. (Pl.Ex.79). The income being imputed to Wife herein is based upon her prospective earning capacity. Accordingly, there is no evidence in the record from which the Court can determine what applicable taxes she "actually paid."
According to the tax documentation provided (Def.Ex.DDD), Husband is a "W2 employee." However, he has not provided a complete W2 form, or any other documentation to the Court that would reveal the applicable taxes that he "actually paid." While a W2 "summary sheet" has been annexed to his 2015 tax return, it is mostly blank and does not include entries for the applicable taxes. The only information provided is contained in his New York State return, which indicates that he paid the sum of $1,443 in local (N.Y.C tax). Accordingly, the sum of $1,443 shall be deducted from Husband's imputed income of $135,000 resulting in an adjusted income of $133,557. It should be noted that the Court's inability to properly deduct the other statutorily allowable taxes is due to the lack of financial information provided by Husband at trial. See Chait v. Chait, 290 A.D.2d 340, 736 N.Y.S.2d 220 (1st Dept .2002) ; See also Abramovitz v. Bercovici, 278 A.D.2d 175, 718 N.Y.S.2d 64 (1st Dept.2000).
Under the terms of this Decision, Husband shall be required to pay the annual sum of $18,000 in prospective maintenance to Wife. In addition to the deduction of allowable taxes, both the Family Court Act, and Domestic Relations Law, as they existed at the time this matter was commenced, allow for a deduction of prospective maintenance payments, so long as the Decision includes an automatic adjustment in child support at the time the maintenance term ends. See FCA § 413(1)(b)(5)(vii)(C) ; DRL § 240(1–b)(b)(5)(vii)(C). Accordingly, for the purpose of calculating child support herein, the sum of $18,000 shall be deducted from Husband's income. Both parties shall have the right to seek an automatic adjustment of child support from a Court of competent jurisdiction, at the time when the maintenance award mandated herein ends. This results in a further adjusted income for child support purposes of $115,557.
Under the law as it existed at the time this case was commenced, prospective maintenance to be received by Wife was not to be included when calculating her income for purposes of child support. See Shapiro v. Shapiro, 35 A.D.3d 585, 829 N.Y.S.2d 114 (2d Dept.2006) ; See also Lee v. Lee, 18 A.D.3d 508, 795 N.Y.S.2d 283 (2d Dept.2005). Notably, the Legislature has since changed the maintenance and child support statutes, effective to cases commenced after January 26 2016, to include prospective maintenance awarded to Wife as income. See DRL § 240(1–b)(b)(5)(iii)(I) [as amended]. However, in order to determine the applicability of the new laws, the Court must look to the commencement date of this action. As the present action for divorce was commenced by Plaintiff Wife in 2013, the new law is inapplicable. See R.I. v. T.I., 51 Misc.3d 1215(A) (Sup Ct. Kings Cty.2016) ; See also C.G. v. F.G., 53 Misc.3d 229 (Sup.Ct.Rich.Cty.2016).
Accordingly, after all of the adjustments indicated above, Wife's income for child support purposes is $45,000 and Husband's income is $115,557. Utilizing these figures, the combined parental income for purposes of calculating CSSA child support is $160,557. As this amount exceeds the child support standards cap of $143,000 the Court is required to consider the record and the factors set forth in Domestic Relations Law 240(1–b)(f) when determining how, if at all, the income above the cap should be considered. See Bono v. Bono, 127 A.D.3d 905, 6 N.Y.S.3d 638 (2d Dept.2015). Here the Court has considered the enumerated factors and finds that the record does not evidence an enhanced standard of living, special needs, or any other special circumstances which would require the utilization of income above the child support cap. Accordingly, the Court will utilize the statutory cap of $143,000 when determining Husband's child support obligation. See Weitzner v. Weitzner, 120 A.D.3d 1406, 992 N.Y.S.2d 576 (2d Dept.2014).
As there are two subject children of this marriage, the correct CSSA percentage is 25%. Twenty-five percent of $143,000 is $35,750 which amounts to the parties' combined annual child support obligation. Of this combined amount, Husband is responsible for 72% and Wife is responsible for 28% (pro rata based upon the parties' respective incomes as compared to their combined income). Accordingly, Husband's child support obligation under the CSSA guidelines is 72% of $35,750, which amounts to $25,740 a year, $2,145 a month, or $495 a week. Accordingly, Husband is hereby Ordered to pay the sum of $495 a week in conjunction with the maintenance payment schedule set forth herein, commencing upon the date this Decision is signed.
As indicated above, either party shall be entitled to an automatic recalculation of child support from a Court of competent jurisdiction once the maintenance period indicated herein terminates. This child support award shall also be modifiable in accordance with statutory law, upon a showing of (1) a substantial change in circumstances; (2) an increase or decrease of 15% in either parties' income; or (3) three years passage of time from the issuance of this Decision. As Husband has failed to make prior payments of support, Wife shall be authorized to utilize the services of the Support Collection Unit, to the extent that she chooses to do so.
Unreimbursed medical expenses, Life insurance.
During the course of this trial, the issue of health insurance for the subject children has been a point of constant contention. At least two orders have been issued by this Court directing Husband to reinstate the subject children to his health insurance plan after they were mysteriously removed during these proceedings. At trial, Wife indicated that she was unsure how the children were removed, while Husband indicated that he investigated the issue and found that the children were removed by operation of law when Wife requested public assistance. While it is unclear as to why the subject children were removed from their prior insurance, the Court finds that Husband shall be the party responsible for maintaining the subject children on his health insurance policy in the future. See Matter of Kreiswirth v. Shapiro, 103 A.D.3d 725, 962 N.Y.S.2d 156 (2d Dept.2013) ; See also, Cohen v. Cohen, 21 A.D.3d 341, 800 N.Y.S.2d 435 (2d Dept.2005).
In addition to his obligation to maintain the subject children on his health insurance policy, Husband is hereby directed to pay his pro-rata share of any reasonable and necessary unreimbursed medical expenses incurred by the subject children during the time in which he is responsible for the payment of child support. See Granade–Bastuck v. Bastuck, 249 A.D.2d 444, 671 N.Y.S.2d 512 (2d Dept.1998) ; See also Castello v. Castello, 144 AD3d 723 (2d Dept.2016). Each party's pro rata share shall be in the same proportion as each parent's income is to the combined parental income. See Goldberg v. Goldberg, 98 A.D.3d 944, 950 N.Y.S.2d 578 (2d Dept.2012). In the present case, Husband's share of unreimbursed medical expenses shall be 72% and Wife's share shall be 28%.
Husband is hereby further directed to secure his child support and maintenance obligations through a life insurance policy. See DRL § 236(B)(8)(a) ; See also Hainsworth v. Hainsworth, 118 A.D.3d 747, 987 N.Y.S.2d 215 (2d Dept.2014) ; See also Gillman v. Gillman, 139 A.D.3d 667, 31 N.Y.S.3d 164 (2d Dept.2016). Accordingly, Husband is hereby ordered to maintain a life insurance policy in the amount of $220,000 naming both subject children as beneficiaries. This policy may have a term that ends upon the cessation of child support payments if Husband so chooses. Moreover, the policy may be adjusted every year to reflect the amount of future child support due under this Decision.
Husband is further directed to maintain a life insurance policy in the amount of at least $89,000 with Wife named as the beneficiary. This amount reflects both Husband's prospective maintenance obligation ($18,000 ) and the maintenance arrears that can be definitively established herein ($79,556 –See "Retroactivity" below). Husband shall be required to maintain this policy until his maintenance award is paid in full, but will be entitled to adjust the policy each year to reflect the amount of maintenance outstanding. Husband is hereby directed to provide proof of the required insurance within 30 days of service of a signed Judgment of Divorce.
Retroactivity
Child support and maintenance awards are generally retroactive to the first time that they were affirmatively requested. See Crane v. Crane, 264 A.D.2d 749, 694 N.Y.S.2d 763 (2d Dept.1999). Here, Wife made her first application for support in her Summons and Verified Complaint which was filed on March 21, 2013. In calculating arrears, the Court is directed to credit payments of pendente lite maintenance and child support ordered by the Court but not amounts voluntarily paid for the benefit of the children. See LiGreci v. LiGreci, 87 A.D.3d 722, 929 N.Y.S.2d 253 (2d Dept.2011) ; See also Heiny v. Heiny, 74 A.D.3d 1284, 904 N.Y.S.2d 191 (2d Dept.2010). In addition, Husband would arguably be entitled to a credit for his contribution to payments made to third parties (including the mortgage and utilities), however Husband failed to prove at trial that such payments were ever made. See Yunis v. Yunis, 94 N.Y.2d 787, 699 N.Y.S.2d 702, 721 N.E.2d 952 (1999).
During trial, the issue of pendente lite maintenance arrears was addressed repeatedly. As has been discussed at length in this Decision, Husband blatantly refused to pay his pendente lite maintenance obligation for the vast majority of this protracted divorce proceeding. On June 9, 2016, Wife credibly testified that as of that date Husband's maintenance arrears had accumulated to the excessive sum of $52,078. This is the last testimony that was taken from either party on the issue of arrears during trial. The Court notes that Husband's failure to pay maintenance has resulted in a rather complicated retroactivity analysis, which could have been avoided through compliance with Court Orders.
On or about December 19, 2016, Plaintiff Wife filed a post trial motion (Seq. No. 013) to update the Court regarding the amount of arrears owed under the Pendente Lite Order. While this motion was opposed by Husband, he limited his opposition to his "reasons" for not paying maintenance, rather than challenging the amount owed. Accordingly, Husband has admitted the factual portion of that motion, to wit, that as of December 2016 he owed the sum of $73,919 in maintenance arrears.
As indicated above (See "Maintenance"), this Court has determined that a two-step graduated maintenance award is warranted under the unique facts of this case. Accordingly, the prospective final maintenance award herein, of $1,500 a month, shall not be applied retroactively. Rather, the Court finds that the pendente lite maintenance award in the amount of $2,837 was appropriate and proper when it was issued, and that it should have been followed by Husband. Moreover, the Court has found that the pendente lite maintenance award was appropriate to support Wife while she endeavored to better herself during the course of this litigation. Thus, it is that amount ($2,837 ) that shall be applied retroactively to the commencement of this action as the first step of the two-step final maintenance award. See Sansone, Supra.
This action was commenced on March 21, 2013. Wife filed her pendente lite application in May of 2013. Accordingly, Husband owes two months of retroactive maintenance arrears running from commencement, to the filing of Wife's pendente lite motion. Two months at the sum of $2,837 a month calculates to retroactive arrears totaling $5,674 ("the first amount of arrears"). The next step in calculating retroactivity is to determine the maintenance arrears that accumulated from the date of the pendente lite motion forward. As has been established through Wife's December 2016 motion, that sum amounted to $73,919 as of that date ("the second amount of arrears"). This amount gives Husband credit for the few payments he did make. As indicated above, Husband has not opposed that amount of arrears.
The date of the pendente lite motion is relevant as the Pendente Lite Decision dated 12/2/13, and the subsequent Order Fixing Arrears dated 12/11/14 addressed pendente lite arrears running retroactively to the filing of Wife's motion.
The third amount of arrears must be calculated from December 2016 to the present. As established herein, Husband owes retroactive final maintenance arrears for the five months that have elapsed since Wife's motion, with credit afforded for any payments that he may have made. Husband's retroactive arrears from the date of motion sequence number 013 to the date of this Decision amounts to $11,935 (5 x $2,387 ) ("the third amount of arrears"). As a factual determination cannot be made in regard to this third amount of arrears without some degree of speculation, Wife is hereby directed to settle an Order on notice to Husband's counsel indicating arrears running from December 16, 2016 to the date of this Decision, giving Husband credit for any amounts that he may have paid. Husband shall have an opportunity to submit a counter judgment in the event that he feels that he has not been given credit for payments he has made during the relevant time period. Once the third amount of arrears is fixed, the Court will make a determination of how it should be paid.
The second amount of retroactive maintenance arrears, in the amount of $73,919 is currently the subject of a contempt motion that has been referred to this trial. Accordingly, the payment of that sum will be addressed in relation to that motion. (See "Contempt" below). However, as the first amount of maintenance arrears, in the amount of $5,674, is being addressed herein for the first time, Husband shall be authorized to pay the same over the course of the next 12 months, in monthly sums of $473, to be paid in addition to his prospective maintenance obligation. Accordingly, Husband's monthly maintenance obligation for the next year shall effectively be $1,973 ($1,500 + $473 ).
While Husband refused to pay maintenance, it was established at trial that he consistently paid his child support obligation. Pursuant to this Court's Pendente Lite Decision, Husband was required to pay a monthly sum of $2,000 both prospectively, and retroactively to the filing of Wife's motion. (See D & O dated 12/2/13). By Order dated December 11, 2014, this Court fixed pendente lite child support arrears from May of 2013 to December of 2013 in the sum of $8,845. Pursuant to the Pendente Lite Decision, Husband was authorized to make installment payments towards these established arrears at a rate of $200 a month in addition to this ongoing child support payments. As Wife established at trial, Husband failed to make a single retroactive installment payment. Husband's failure to pay any installments towards that sum is also the subject of Wife's contempt motion. (See "Contempt" below).
In addition to these previously established pendente lite arrears, the final child support award established herein, in the amount of $2,145, is retroactive to the commencement of this action. This action was commenced on March 21, 2013. Wife filed her pendente lite application in May of 2013. Accordingly, Husband owes two months of full retroactive child support payments running from commencement, to the filing of Wife's pendente lite motion. Two months at the sum of $2,145 a month calculates to retroactive child support arrears totaling $4,290. The next step in calculating retroactivity is to determine the arrears that accumulated from the date of the pendente lite motion forward. As the final award of child support is exactly $145 per monthmore than the pendente lite award, the arrears can be calculated by multiplying the number of months since the filing of the pendente lite motion and multiplying those months by $145. The pendente lite motion was filed in May of 2013. Accordingly, forty nine (49) months have passed since the motion was filed. Husband has been underpaying child support by the sum of $145 a month for those 49 months. Thus, he owes retroactive arrears in the sum of $7,105 (49 x $145 ). In total, Husband owes retroactive child support arrears in amount of $20,240. ($8,845 + $4,290 + $7,105 ). The payment schedule for these arrears shall be set forth below. (See "Contempt").
Contempt
As indicated above, during the course of these proceedings, Wife has filed a number of contempt applications wherein she alleged that Husband failed to pay his Court ordered obligations, primary among them being his pendente lite maintenance obligation. One of these motions, Seq. No. 008, was referred to trial, while the rest were withdrawn or resolved by prior order. During trial, two dates were set aside as a contempt hearing, May 8, 2015 and May 28, 2015 respectively. Post-hearing summations were submitted at the close of this hearing. Notably, while these two days were set aside for the issue of contempt, a good portion of trial time was spent on Husband's alleged reasons for not obeying court orders, and the ramifications of this Decision on Wife and the subject children. Notably, Husband's failure to follow court orders continued throughout the trial. In addition to failing to pay maintenance, Wife alleges that Husband failed to maintain the children's health care coverage, and failed to pay the Forensic Evaluator, Dr. Peter Favaro. The Court notes that Husband further failed to purchase trial transcripts as directed.
In order to prevail on a motion for civil contempt, the moving party must prove: (1) the existence of a clear and lawful mandate of the court; (2) that the party alleged to have disobeyed the Order was aware of its terms, and (3) that the moving party's rights were prejudiced. See Coyle v. Coyle, 63 A.D.3d 657, 882 N.Y.S.2d 423 (2d Dept.2009) ; See also Keller v. Keller, 126 A.D.3d 940, 6 N.Y.S.3d 126 (2d Dept.2015). These elements must be established by the moving party by clear and convincing evidence. See McCormick v. Axelrod, 59 N.Y.2d 574, 466 N.Y.S.2d 279, 453 N.E.2d 508 (1983) ; See also, Matter of Hughes v. Kameneva, 96 A.D.3d 845, 946 N.Y.S.2d 211 (2d Dept.2012). While "willfulness" is an essential element for a finding of "criminal contempt", the mere act of disobedience, regardless of motive, is sufficient to establish "civil contempt" if such disobedience "defeats, impairs, impedes, or prejudices the rights or remedies of a party." Therefore, a showing of willfulness is unnecessary for a finding of civil contempt. El–Dehdan v. El–Dehdan, 114 A.D.3d 4, 978 N.Y.S.2d 239 (2d Dept.2013) ; See also, Cassarino v. Cassarino, 149 A.D.3d 689, 50 N.Y.S.3d 558, 2017 N.Y. Slip Op 02623 (2d Dept.2017) ; Yalkowsky v. Yalkowsky, 93 A.D.2d 834, 461 N.Y.S.2d 54 (2d Dept.1983).
Domestic Relations Law § 245, which addresses contempt in the context of matrimonial proceedings, has been recently modified by legislative action. In the past, a party seeking contempt pursuant to DRL § 245 (for the nonpayment of funds in a domestic relations matter) had an obligation to show that all less drastic remedies have been exhausted, or would be ineffectual. See Wolfe v. Wolfe, 71 A.D.3d 878, 895 N.Y.S.2d 855 (2d Dept.2010). However, the New York State Legislature has recently removed this obligation when it comes to the nonpayment of "any sum of money" mandated by an "order" in the context of an "action for divorce." This amendment to the Domestic Relations Law was made effective "immediately" and is intended to "apply to all actions, whenever commenced, as well as judgments or orders previously entered". See DRL § 245, as amended.
Upon a finding of civil contempt, and a failure to purge that contempt, the Court may impose a period of incarceration. See Matter of Rubackin v. Rubackin, 62 A.D.3d 11, 875 N.Y.S.2d 90 (2d Dept.2009). This period of incarceration will cease if the contemnor commits the affirmative act required by the purge condition. See New York City Tr. Auth. v. Transport Workers Union of Am., 35 A.D.3d 73, 822 N.Y.S.2d 579 (2d Dept.2006). As the contemnor may purge his contempt at any time, he effectively "carries the key of his prison in his own pocket." International Union, United Mine Workers of America v. Bagwell, 512 U.S. 821, 114 S.Ct. 2552, 129 L.Ed.2d 642 (1994).
Wife's motion alleges that Husband failed to pay his court ordered maintenance obligation. At the time in which the motion was filed, Wife alleged that Husband owed the sum of $8,845 in child support arrears and $24,109 maintenance arrears. During trial, Wife consistently updated the amount of arrears owed by Husband. As of her last testimony on the subject, Husband owed the sum of $52,078 in unpaid maintenance and had not made any contribution to the previously established child support arrears in the sum of $8,845. The maintenance arrearswas later updated by post trial motion and set at the sum of $73,919. (See Motion Seq. No. 013).As indicted above, Husband has not opposed the portion of the motion that calculates the amount of his maintenance arrears. Accordingly, that amount of arrears is deemed admitted.
The Child Support Arrears were calculated from the date of the Pendente Lite Decision retroactive to the filing of the Pendente Lite Motion (See Order dated 12/11/14). The Maintenance arrears are a combined sum of arrears established in that Retroactivity Order, together with additional arrears that Husband accumulated during this proceeding.
Husband's failure to pay maintenance severely prejudiced Wife and the subject children. Wife credibly testified that her utilities were shut off on more than one occasion, and the mortgage went unpaid resulting in over $18,500 being added to the parties' mortgage debt. Before she was allowed by court order to refinance the mortgage, the bank was threatening foreclosure. To make ends meet, Wife was frequently forced to borrow money from friends and family, and use credit cards, thus increasing her personal debt at a time in which she was already struggling financially.
Husband has admitted, somewhat brazenly, that he has failed to pay maintenance. Accordingly, Husband's defense at trial was centered on an alleged inability to pay the sums ordered. For the reasons set forth below, this Court finds Husband's testimony on the subject of finances to be patently incredible and wholly unpersuasive in light of his business' established earning capacity.
First, other than self-serving claims of a decline in the business, Husband failed to establish, with any credible testimony or evidence, how his business admittedly supported average household expenses of $11,000 a month ($132,000 a year, post tax) when the parties were married, but could no longer support the marital household after the commencement of this action. Wife has consistently argued that Husband is capable of setting his own salary, and therefore has reduced his income to make it appear that he is unable to pay support. When cross examined on this very topic, Husband admitted that he was capable of setting his own income as the sole owner of the business. Thus he established that his business' net profit was actually synonymous with his income, if he chose to take it as such. However, Husband then admitted that he chose to only take $55,000 as income, and bluntly stated "who would take more money in the middle of a divorce." (Tr. 3/4/16 pg.145). The Court finds this statement to be compelling evidence that Husband has intentionally manipulated his income to give the appearance of an inability to pay support.
In its Pendente Lite Decision, this Court concluded that since Husband paid Wife the sum of $75,000 from business profits, and then did not replace her, that a least a good portion of that income could be distributed to Husband. Based upon this premise, the Court imputed Wife's income to Husband as reflective of his earning capacity. At trial, Husband argued that the money that he historically paid Wife was reinvested back into his business, however this testimony on was not credible. Moreover, even if Husband's testimony was to be credited, and his business was under performing, Husband took no steps to obtain substitute, or additional employment. In fact, when asked by the Court if he would be able to make a higher salary working for someone else, he contradicted himself, stating that he could not make more money than his business, but that he would likely earn a higher salary than he was paying himself. (Tr. 3/4/16 pg. 135).
Husband's claims of an inability to pay was further contradicted by the testimony of his father. On September 2, 2015, Husband called his father J. D., Sr. ("Paternal Grandfather") to testify on his behalf. As indicated above, Husband currently resides with his parents. Paternal Grandfather admitted that he consistently receives between $600 and $800 a month from his son for alleged "rent and expenses." Accordingly, it was established that at a time that Husband failed to pay court ordered support to his Wife, he voluntarily paid his parents the at least $7,200 a year. While Husband has a right to pay for his own living expenses, it is clear from Grandfather's testimony that the figure was not a set obligation, but rather a voluntary contribution from Husband to "help out." At trial, Husband admitted that while he was "unable" to pay maintenance to this Wife, he made voluntary contributions, in varying amounts, to his father's household each month. (Tr. 12/18/15 pg.149; 153).
In addition to receiving "rent and expenses" from Husband, Paternal Grandfather admitted that he has received money from Husband's customers. He admitted that during the last year or so he deposited "less than six" checks in his personal bank account that were actually business related checks that should have been made out to his son, or to A.D. Electric. (Tr. 9/2/15 pgs. 234–238). When asked why he would deposit Husband's business payments into his personal checking account, Paternal Grandfather candidly admitted that he did it because "it's what [his] son asked [him] to do." (Tr. 9/2/15 pg. 239;247). Paternal Grandfather conveniently could not remember any additional details, such as the frequency, or the amount of the checks. In this regard the Court finds his testimony to be not credible, and intentionally protective of his son. What was established, however, is that Husband has intentionally secreted money by depositingit into his father's bank account.
Husband admits that he sometimes deposits checks into his father's account that should have been deposited into a business account. When asked why, Husband boldly indicated that he did so because some of his jobs were paid for in unreported "cash." (Tr. 12/18/15 pg.136). Husband further indicated that in addition to using his father, he would also deposit checks for "cash" in his personal bank account instead of his business bank account. (Tr. 12/18/15 pg.137). Accordingly, while not necessary for a finding of civil contempt, it can be established from these secret deposits that Husband's failure to abide by his court ordered financial obligations is willful.
In addition to his admitted failure to pay maintenance, Wife further alleges that Husband also failed to follow additional Court Orders, including the failure to pay the Forensic Evaluator, Dr. Peter Favaro. Dr. Peter Favaro was appointed by Order of this Court dated August 6, 2013. Pursuant to the terms of that Order, Husband was directed to pay 95% of his fee with Wife paying the remaining 5%. On or about March 2, 2016, just a few days before he was scheduled to testify, Dr. Favaro informed this Court, and all parties, that Husband had not paid his retainer. In response to this letter, this Court issued a Short Form Order compelling Husband to comply with his obligation to pay the evaluator by "no later than 6:00p.m. on March 5, 2015."
As indicated above, Dr. Favaro testified before this Court on March 6, 2015. Before commencing his analysis of the issues of custody and visitation, Dr. Favaro indicated that while Wife had paid her share of his fee, Husband still owed him the sum of $5,000. (Tr. 3/6/16 pgs. 28–29). However, despite not being paid, Dr. Favaro commendably appeared and offered his expert testimony anyway out of a sense of responsibility and professionalism. The last testimony offered to this Court on the subject of Dr. Favaro's fee was that the forensic evaluator had worked out a potential payment plan with Husband. The Court notes that it did not approve any such payment plan, and to date the Court has not received confirmation as to whether the payment has been made.
Contempt Finding
After consideration of the credible evidence offered by Wife, and in light of the admissions made by Husband, this Court finds that Wife has met her burden, and has established the elements of civil contempt by clear and convincing evidence. See Manning v. Manning, 82 A.D.3d 1057, 920 N.Y.S.2d 126 (2d Dept.2011) ; See also Soehngen v. Soehngen, 58 A.D.3d 829, 874 N.Y.S.2d 142 (2d Dept.2009). Accordingly, the Court hereby finds Husband to be in contempt of this Court's Pendente Lite Order dated December 2, 2013, and this Court's Orders mandating payment to the Forensic Evaluator dated August 6, 2013 and March 2, 2015 respectively. Wife has further established that the failure to pay maintenance was clearly calculated to, and/or actually did defeat, impair, impede, or prejudice her rights. See Stempler v. Stempler, 200 A.D.2d 733, 607 N.Y.S.2d 111 (2d Dept.1994). While not a party to this action per se, Husband's failure to pay the Forensic Evaluator's fee certainly did defeat, impair, impede and prejudice Dr. Favaro's right to be paid in accordance with this Court's Order. Accordingly, Wife's motion to hold Defendant in civil contempt is hereby granted subject to the purge conditions indicated below.
While no longer required by statute, the Court is aware of no alternative remedy to contempt here, as Husband has no liquid assets identified to this Court, and does not own any property that can be sequestered and sold. An income deduction order would be ineffectual as Husband is self-employed, and Husband owns no assets against which a money judgment could be levied. Accordingly, the Court is only left with a remedy of civil contempt, and the requested remedy of incarceration.
In regard to unpaid child support arrears, while it is true that this Court's Pendente Lite Order (dated 12/2/13) and Order Affixing Arrears (dated 12/11/14) directed the payment of retroactive child support arrears in the sum of $8,845, it did so with a directive that payments towards those arrears should be made in $200 increments. At trial Wife established that Husband had not paid any of the $200 a month increments. However, in her motion to update the arrears total (Seq. No. 013), Wife alleges that Husband owes additional child support arrears in the sum of $4,464 without indicating how that number was calculated.
After a review of the trial record, together with Wife's contempt motion (Seq. No. 008) and the motion updating arrears (Seq. No. 013), the Court finds that Wife has not met her burden of showing, by clear and convincing evidence, that Husband is in contempt of the child support order of this Court. In that regard, the Court finds that Husband has consistently made his child support payments. While he may not have made the required installment payments towards retroactive arrears, Wife has not sufficiently established anyadditional payments missed for contempt purposes. Accordingly, Wife's application for contempt, to the limited extent that it relates to child support arrears, is hereby denied.
Moreover, in an effort to clarify the same, the child support retroactivity provisions set forth in the Order Affixing Arrears (12/11/14) and the Pendente Lite Order (12/2/13) are hereby modified and superseded by this Decision. For the reasons set forth above, this Court has calculated Husband's total amount of retroactive child support arrears to the sum of $20,240. Husband shall be afforded a period of three years (36 months) to pay these arrears, at a sum of $562 a month to be paid in conjunction with his prospective child support obligation. Accordingly, Husband's monthly child support obligation for the next three years shall effectively be $2,707 ($2,145 + $562 ).
Child support arrears running from the commencement of the action till the filing of the Pendente Lite Motion amount to $4,290. The child support arrears running from the Pendente Lite Order retroactively to the filing of the Pendente Lite Motion amount to $8,845. The child support arrears running retroactively from this Decision to the commencement of this action amount to $7,105. Accordingly the total amount of child support arrears to date amount to the sum of $20,240.
Purge Conditions
The party in contempt must be given an opportunity to perform the act which is still within his power to perform. See Wides v. Wides, 96 A.D.2d 592, 465 N.Y.S.2d 285 (2d Dept.1983) ; See also, Judiciary Law § 774. Therefore, the Defendant shall be given an opportunity to purge the contempt finding, by making installment payments towards the maintenance arrears owed.
Generally, when dealing with non-payment of support, a purge condition takes the form of the amount of arrears owed. See Cutroneo v. Cutroneo, 140 A.D.3d 1006, 35 N.Y.S.3d 173 (2d Dept.2016) ; See also, Diaz v. Diaz, 129 A.D.3d 658, 10 N.Y.S.3d 314 (2d Dept.2015). Here, it has been established that Husband owes Wife the sum of $73,919 in unpaid maintenance arrears. Accordingly, Husband's purge condition shall be broken into three equal payments of $24,640 to be paid directly to Wife. The first payment shall be due on or before July 31, 2017. The second payment shall be due on or before September 29, 2017. The third payment shall be due on or before November 30, 2017.
The parties and counsel are hereby directed to appear before the Court on Monday July 31, 2017 at 9:30 A.M. In the event that Defendant fails to begin the process of purging his contempt by paying the first installment sum of $24,640 by bank check or other certified funds on or before this date, he will be committed to the custody of the New York City Department of Corrections (DOC) to serve six months of consecutive weekends of incarceration. See Matter of Cutroneo v. Cutroneo, 140 A.D.3d 1006, 35 N.Y.S.3d 173 (2d Dept.2016) ; See also Matter of Nancy R. v. Anthony B., 121 A.D.3d 555, 995 N.Y.S.2d 18 (1st Dept.2014) ; Carlin v. Carlin, 108 A.D.3d 493, 969 N.Y.S.2d 115 (2d Dept.2013). A period of weekend incarceration, as opposed to straight time, is to allow Defendant to continue working, and make support payments during his period of incarceration. In the event that such payments are not made on an ongoing basis, the Court will entertain applications for a modification to straight time incarceration. Defendant's failure to appear on July 31, 2017 will result in a warrant being issued for his arrest. Husband may purge himself fully of his contempt by paying the entire amount of maintenance arrears, in the sum of $73,919, at any time. The Court has given Husband an"installment" purge condition on the sincere hope that it will make it easier for him to make the required payments, as a failure to do so will have the unfortunate result of negating his weekend visitation during his period of incarceration.
In addition to the installment payment schedule indicated above, Husband must purge his contempt by showing that he has paid the forensic evaluator, Dr. Peter Favaro's, outstanding bill in the amount of $5,000 in full on or before July 31, 2017. The Court notes that the forensic evaluator testified that he and Husband had come to an "arrangement" for the payment of fees. If this remains the case, Husband is hereby directed to have that arrangement reduced to a consent Short Form Order between himself and Dr. Favaro, which must be presented for signature by the Court on or before July 31, 2017.
Motions Referred to Trial
During the course of the divorce proceeding a number of motions that were filed by both parties were referred to trial. Wife's contempt motion (Seq. No. 008) and her motion to update arrears (Seq. No. 013) have already been addressed in this Decision. Wife's request for enforcement related counsel fees in motion sequence number 013 shall be addressed below (See "Counsel Fees"). Wife's application for various money judgments are hereby denied without prejudice. The Court will re-entertain these applications upon a showing that Husband fails to meet any of the contempt purge conditions set forth herein.
Husband's motion to vacate the Temporary Order of Protection (Seq. No. 010) has been mooted by the issuance of a Final Order of Protection herein. Finally, Husband's motion to vacate and or modify certain aspects of this Court's Pendente Lite Order (Seq. No. 011) is hereby denied. As indicated herein, the Court has found that the pendente lite maintenance award was correct when it was issued.
Any other motion that was referred to trial is hereby denied to the extent that it has not been mooted or resolved by this issuance of this Decision after Trial.
Counsel Fees
Wife seeks an award of counsel fees incurred in relation to this long and bitterly contested matrimonial action. Wife seeks payment of fees currently due and owing to her attorney Michael Coscia Esquire (as of December 2016) in the amount of $84,775 together with a prospective award of fees in the amount of $4,500 for anticipated post-trial submissions. In total, Wife seeks an award in the sum of $90,000. In support of her application, Wife's Attorney has submitted an "Affirmation of Services Rendered" which includes detailed billing records which substantiate the amount due and owing. While Wife also seeks counsel fees in relation to motions that have been referred to the trial, it appears that the billing related those counsel fee requests has been absorbed into her final application. However, as those applications were made in relation to enforcement and contempt motions, Wife's final counsel fee award application necessarily invokes DRL § 237(a) together with DRL § 237(c) and DRL § 238.
Husband opposes Wife's application and argues that each party should be responsible for their own counsel fees. While he has offered general opposition to a counsel fee award, he has not challenged the sufficiency of the billing documentation provided, or the nature of the legal work itself. Husband also waived the right to call Wife's attorney as a witness at trial. See Castello v. Castello, 144 AD3d 729 (2d Dept.2016).
In addition to opposing Wife's application, Husband requests affirmative relief in the form of an Order directing that the counsel fees that he owes to his prior attorney be paid out of the monies held in escrow by Wife's attorney. Husband's application for a disbursement to his prior attorney can be summarily denied, as those funds have already been distributed herein. In any event, the issue of Husband's debt to his prior counsel is not properly before this Court, other than to acknowledge the fact that Husband failed to pay both of his prior attorneys resulting in two motions to withdraw as counsel. Husband has not attempted to assert that Wife is the monied spouse in this action, or that she should be required to pay his legal fees.
An award of reasonable counsel fees is a matter within the sound discretion of the trial court. The issue of counsel fees is controlled by the equities and circumstances of each particular case. See Nicodemus v. Nicodemus, 98 A.D.3d 605, 949 N.Y.S.2d 741 (2d Dept.2012) ; see also DRL § 237(a). While DRL § 237 permits consideration of many factors, paramount amongst these factors is financial need. See O'Halloran v. O'Halloran, 58 A.D.3d 704, 873 N.Y.S.2d 87 (2d dept.2009) ; See also, Silverman v. Silverman, 304 A.D.2d 41, 756 N.Y.S.2d 14 (1st Dept.2003). "An award of an attorney's fee will generally be warranted where there is a significant disparity in the financial circumstances of the parties". Cohen v. Cohen, 73 A.D.3d 832, 900 N.Y.S.2d 460 (2d Dept.2010). The purpose of DRL § 237 is to "redress the economic disparity between the monied spouse and the non-monied spouse. See O'Shea v. O'Shea, 93 N.Y.2d 187, 689 N.Y.S.2d 8, 711 N.E.2d 193 (1999). Other factors to be considered include the relative merits of the parties' positions, and if either party engaged in conduct that resulted in a delay of the proceedings or unnecessary litigation. See Vitale v. Vitale, 112 A.D.3d 614, 977 N.Y.S.2d 258 (2d Dept.2013). In addition to DRL § 237(a), DRL § 237(c) mandates an award of attorney's fees upon a showing of a willful failure to comply with a Court Order, and DRL § 238 authorizes the Court to award fees in the context of a contempt proceeding. See Hayes v. Hayes, 127 A.D.3d 1021, 7 N.Y.S.3d 439 (2d Dept.2015) ; See also Pelgrim v. Pelgrim, 127 A.D.3d 710, 7 N.Y.S.3d 305 (2d Dept.2015).
The relative financial circumstances of the parties has been well established through the credible testimony and documentary evidence offered at trial by both parties. As indicated herein, both parties have had incomes imputed to them, albeit for significantly different reasons. Wife, a part time mental health counselor and real estate saleswomen has been imputed an income of $45,000 a year based upon her future earning potential. However, Wife's current income is admittedly a recent development, and inconsistent in nature. In addition to this imputed sum, Wife has been awarded an annual sum of $18,000 in maintenance.
Husband, in contrast, has been imputed an income of $135,000 based upon his established prior earning history and the fact that he is the owner of a successful electrical contracting business. Wife established that Husband is capable of manipulating his own salary to fit his needs. Moreover, Husband has admitted at trial that he has secreted business funds via cash payments into both his personal bank account and his father's bank account. For the reasons set forth in this Decision as a whole, and after considering the totality of the circumstances, Husband is clearly in the superior financial position to fund this litigation as he is the monied spouse and has significant assets. See Johnson v. Chapin, 49 A.D.3d 348, 854 N.Y.S.2d 18 (1st Dept.2008) ; See also, Sterling v. Sterling, 303 A.D.2d 290, 757 N.Y.S.2d 530 (1st Dept.2003).
Wife's attorney asserts that since the commencement of this action he has been paid a total sum of $22,931 in fees and disbursements out of the total counsel fee bill of $107,705. In contrast to Wife's single attorney, Husband has had the benefit of four attorneys during the course of this action. Husband was first represented by Brian Perskin Esq. until Mr. Perskin withdrew as counsel in or around October of 2014. Husband was next represented by two attorneys, Maria Novak Esq. and Louis Kleiger Esq. until November of 2015 when they withdrew as counsel. Husband was finally represented by Dalia Zaza Esq. from December of 2015 to the present.
At trial, Husband established that he owes all of his prior attorneys at least a portion of their legal bill. While Husband does not owe his current attorney money, it is only because he entered into a retainer agreement by which he agreed to barter his electrical services for her legal services.As indicated herein, Husband obtained his current attorney by engaging in a media blitz wherein he repeatedly shared details of this divorce proceeding with the press in order to get his request for a "barter exchange" out into the world. After all of these facts are taken into account, the resulting conclusion is that Husband has managed to maintain representation throughout this proceeding at little or no actual cost to himself, as he refused to pay his past attorneys, and made an arrangement wherein he does not have to pay his current attorney. In contrast, Wife, the non monied spouse, owes her attorney over $80,000.
Finally, Wife argues that Husband's conduct during the course of the trial further supports an award of counsel fees. Wife argues that Husband's failure to comply with numerous court orders has resulted in the necessity of filing at least five motions seeking enforcement, including the contempt motion that was granted herein. In addition to the filing and litigation of these motions, Husband has further delayed the proceedings with his antics inside and outside of the courtroom. A review of the record of this case as a whole reveals that a rather non-complicated case turned into one of the longest litigated cases in this Part's history due to Husband's conduct. In making its counsel fee determination herein, the Court has considered the delay caused by Husband's refusal to follow court orders and the resulting motion practice that would have been otherwise unnecessary. See Samimi v. Samimi, 134 A.D.3d 1010, 22 N.Y.S.3d 515 (2d Dept.2015) ; See also, Branche v. Holloway, 124 A.D.3d 553, 2 N.Y.S.3d 450 (1st Dept.2015) ; McMahon v. McMahon, 120 A.D.3d 1316, 992 N.Y.S.2d 550 (2d Dept.2014).
After consideration of the totality of the circumstances with significant weight being afforded to Husband's conduct during this ligation and the financially disparity between the parties, it is hereby Ordered that Husband shall pay the sum of $84,775 representing counsel fees due and owing as of the end of trial. This award shall be payable directly to Wife's Counsel. See Cohen v. Cohen, 120 A.D.3d 1060, 993 N.Y.S.2d 4 (1st Dept.2014) ; See also, Guzzo v. Guzzo, 110 A.D.3d 765, 973 N.Y.S.2d 265 (2d Dept.2013) ; Schek v. Schek, 49 A.D.3d 625, 856 N.Y.S.2d 127 (2d Dept.2008).This award of counsel fees is to be paid directly to Wife's counsel in four equal payments of $21,194. The first such payment shall be due on or before July 31, 2017. The second payment shall be due on or before September 29, 2017. The third payment shall be due on or before November 30, 2017 and the last payment shall be due on or before January 31, 2018. In the event that a single installment payment is missed, the entire amount will become due and owing, and Wife's attorney shall be authorized to file a Money Judgment on notice to Husband for the entire amount without the necessity of additional motion practice.
Attorney for the Subject Children's Fees
In her written summation after trial, the attorney for the subject children, Rosa Pannitto Esq. requests an award of counsel fees to be paid out of the monies held in escrow from the sale of the Amboy Road Property. Ms. Pannitto was appointed as attorney for the subject children by Order of this Court dated June 11, 2013. Pursuant to the terms of that Order, Husband was directed to pay 80% of Ms. Pannitto's fees, with Wife being responsible for the remaining 20%. In her summation after trial Ms. Pannitto established that other than a $5,000 retainer, she had not received any additional payments. As of the date of her summation, the attorney for the children was owed fees in the amount of $31,062.
As indicated herein, Ms. Pannitto's application for her fees to be paid out of the monies held in escrow is hereby denied as those funds have already been distributed. However, both parties are hereby directed to pay their court ordered share of Ms. Pannitto's fees within fourteen (14) days of the issuance of this Decision. Accordingly, Husband is hereby directed to pay Ms. Pannitto the sum of $24,850 within 14 days and Wife is directed to pay the remaining sum of $6,212. In the event that Ms. Pannito's fees are not timely paid, she is hereby authorized to file Money Judgments, on notice to the parties, for the amounts owed without the need for further application to the Court.
Conclusion
For the detailed reasons set forth above, Wife's application for an award of sole legal and physical custody of the subject children N.D. and A. D., Jr. is hereby granted. This award of custody shall be subject to Husband's parenting time, and other provisions as set forth herein.
Wife's application for child support is granted in the amount of $25,740 a year. Wife's application for a final award of maintenance is hereby granted with a two-step graduated maintenance award. The first step of the maintenance award shall be retroactive in nature from the issuance of this Decision backwards to the commencement of this action in an annual amount of $34,044. The second step of this maintenance award shall be prospective in nature in an annual amount of $18,000 for one year. Both the child support and maintenance awards shall be retroactive to the commencement of this action, with retroactive amounts payable as indicated herein.
In regards to equitable distribution, Wife's equitable share of A .D. Electric shall be $105,000. This amount shall be credited against Husband's share of the equity in the marital home resulting in a deficit in the amount of $8,860 that Husband will owe Wife as a distributive award. Wife shall be entitled to keep the entirety of the marital residence as delineated herein. The "Amboy Road" proceeds that are currently held in escrow by Plaintiff's attorney shall be distributed to J.D. to satisfy a portion of the marital debt owed by both parties. The remaining deficiency debt shall be distributed 75% to Husband and 25% to Wife. The parties' respective retirement accounts shall be offset against one another resulting in a distributive award owed to Wife by Husband in the amount of $1,500.
Wife's Family Offense application is granted resulting in a one year Order of Protection being issued against Husband. In addition to thisOrder, Husband shall be mandated to complete an anger management program as delineated herein. Wife is hereby directed to serve Husband with the Order of Protection issued in conjunction with this Decision forthwith. The Temporary Order of Protection will remain in effect until such time as service of the final order is effectuated.
Wife's application for an award of counsel fees is granted in the amount of $84,775 payable in installments as indicated herein. The attorney for the subject children's application to be compensated for her legal work is granted with Husband being responsible for fees totaling $24,850 and Wife being responsible for fees totaling $6,212.
Wife's application to hold Husband in civil contempt of court is granted. Husband may purge this contempt finding by paying three installment payments in equal sums of $24,640. The first such sum shall be due and owing on the "Purge date" which is hereby set for July 31, 2017. All parties and counsel are hereby directed to appear at 9:30 on that date. A failure to purge on that date will result in Husband's incarceration.
Pursuant to the Inquest on the issue of grounds, and the grounds Order that was issued on June 11, 2013, Plaintiff Wife is granted a Judgment of Divorce on the ground that the parties' marriage had broken down irretrievably for a period of six months. See DRL § 170(7).
Plaintiff Wife is hereby directed to file a Judgment of Divorce in accordance with the rulings of this Court, together with Findings of Fact and Conclusions of Law. In addition, Plaintiff is hereby directed to file all necessary supporting documentation and file a Note of Issue if one has not been filed. This documentation is to be filed within 30 days of the issuance of this Decision.
This constitutes the Decision of the Court after trial, in the event that an application was made during or before trial, and not specifically addressed herein, that application is hereby denied.