Opinion
23753/2012
03-11-2016
H.T., Plaintiff, v. M.T., Defendant.
Plaintiff's Attorney: Mallilo & Grossman, Esqs. BY: Jawan Finley, Esq. 163-09 Northern Boulevard Flushing, New York 11358 T: 718-406-8112 F: 718-406-8193 Defendant's Attorney: Law Office of Nancy T. Sherman, PC 1010 Northern Boulevard, Ste 208 Great Neck, New York 11021 T: 516-773-3400 F: 516-773-3404 Attorney for Child: Law Offices of Angella S. Hull, Esq. 90-05 Parsons Boulevard, Ste 214 Jamaica, New York 11432 T: 718-206-2290
Plaintiff's Attorney: Mallilo & Grossman, Esqs. BY: Jawan Finley, Esq. 163-09 Northern Boulevard Flushing, New York 11358 T: 718-406-8112 F: 718-406-8193 Defendant's Attorney: Law Office of Nancy T. Sherman, PC 1010 Northern Boulevard, Ste 208 Great Neck, New York 11021 T: 516-773-3400 F: 516-773-3404 Attorney for Child: Law Offices of Angella S. Hull, Esq. 90-05 Parsons Boulevard, Ste 214 Jamaica, New York 11432 T: 718-206-2290 Pam B. Jackman-Brown, J.
Plaintiff/husband (hereinafter referred to as "Plaintiff") commenced the above captioned matrimonial proceeding with the filing of a Summons with Notice on November 29, 2012. The Verified Complaint was filed on January 30, 2014. The Verified Answer with counterclaims was filed on March 14, 2014. Plaintiff seeks an absolute divorce pursuant to Domestic Relations Law (hereinafter referred to as "DRL") §170.7 and other ancillary relief. Defendant/wife (hereinafter referred to as "Defendant") seeks maintenance and equitable distribution.
A trial was held on all issues. After considering all the evidence presented by witnesses and documents, the Court makes the following findings of fact and conclusions of law. The Court takes judicial notice of all Orders issued and pleadings filed in this action.
FINDINGS OF FACT
The parties were married on August 17, 2006, in a religious ceremony. They have one child, K. J. T., was born prior to the marriage. On or about July 2012, the parties separated after a domestic violence incident, upon which an Order of Protection was issued in favor of Plaintiff and against Defendant. Thereafter, Defendant was excluded from the marital residence, located at 165-15 Foch Boulevard, Jamaica, New York (hereinafter referred to as "marital residence"). This action was commenced November 29, 2012.
CUSTODY AND VISITATION
The issue of Custody was resolved pursuant to a So Ordered Stipulation of Settlement dated October 29, 2014. The stipulation is hereby incorporated into the findings, conclusions and judgment but will not merge into and will survive the judgment. Joint Legal Custody is awarded to both Plaintiff and Defendant. Residential Custody is awarded to Defendant with visitations to Plaintiff.
MAINTENANCE
Defendant seeks an award of final maintenance. In the So Ordered stipulation dated April 10, 2013, the parties agreed to pendente lite maintenance in the sum of $1,023.20 biweekly effective January 2013. Plaintiff moved to have the maintenance terminated.
DRL §236 (B)(5-a) provides statutory guidelines to be applied in determining temporary maintenance awards in matrimonial proceedings. The factors for a final maintenance award are different. "The amount and duration of maintenance are a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts" Wortman v Wortman, 11 AD3d 604, 606; see Sidhu v Sidhu, 304 AD2d 816, 817. In determining the amount and duration of an award of maintenance, the court "must consider the factors enumerated in DRL § 236 (B)(6)(a), which include the predivorce standard of living of the parties, the income and property of the parties, the equitable distribution of marital property, the duration of the marriage, the present and future earning capacity of the parties, the ability of the party seeking maintenance to be self-supporting, and the reduced or lost earning capacity of the party seeking maintenance." Giokas v Giokas, 73 AD3d 688, 689; see Baron v Baron, 71 AD3d 807, 809. See also, Levitt v Levitt, 97 AD3d 543.
Predivorce standard of living and income of the parties
As of the date of marriage, Plaintiff was employed by the United States Military. In 2012, Plaintiff retired from the military as a result of his injuries sustained during his service and is now employed with the Federal Bureau of Prisons. He is also receiving disability pay from the military. Plaintiff's Statement of Net Worth, dated June 16, 2014, shows his income for 2011 in the sum of $46,339.00 and 2012 income in the sum of $71,961.00.
During the marriage, Defendant worked as a Certified Nurse Assistant and Personal Care Technician. Defendant's Statement of Net Worth, dated April 9, 2013, shows her 2010 income as $10,887.00, 2011 income as $30,322.00, and 2012 income as $21,465.00. There are no joint assets, bank accounts or tax returns between the parties during the marriage.
At issue are the assets: the real properties, the vending machines, the automobiles and the pensions. Except for one automobile, there is no dispute that all the assets were acquired prior to marriage and are titled in Plaintiff's name. There was no lavish lifestyle. This family took vacations but not often. This is a modest middle class family. Defendant proffers that because the parties had a long term romantic relationship prior to marriage, all assets acquired prior to marriage are marital.
Assets distribution
Although Defendant's evidence is predicated on the romantic relationship prior to marriage, there is no document in evidence that shows Defendant contributed financially to any of the assets prior to or during the marriage. There is evidence to show non-economic contribution by Defendant and based on that Defendant is entitled to her equitable distributive share for the term of the marriage. All the real properties were acquired prior to marriage and are titled in Plaintiff's name. Plaintiff maintained the carry charges on all the properties either from his income or the rental income. Prior to the marriage, in 2001, the parties opened a joint bank account to purchase a Time Share. The joint account was subsequently closed after the purchase. Interestingly, Plaintiff was the person who maintained the carrying charges on the Time Share with his separate income. Three automobiles were purchased prior to marriage and titled in Plaintiff's name. One was purchased during the marriage with a loan secured by Plaintiff and paid for by Plaintiff. Both Plaintiff and Defendant have pension and/or retirement plans. There is no pooling of money for joint ventures. The parties kept their income, bank accounts and tax filing separate. Each used their income separately to pay the marital expenses. Defendant testified that she saved her money by "Sou Sou" (a term commonly known for saving outside of a financial institution). However, there was no other evidence presented other than Defendant's testimony that she had this non conventional type of saving. Defendant did not place in evidence her bank accounts statements, her pay stubs, any witness or document to confirm the "Sou Sou" saving or to show she pooled her money with Plaintiff.
Term of Marriage
The parties were married in 2006 and separated 2012. The term of marriage is six (6) years. Defendant argued that this Court should look back prior to the marriage and deem the romantic relationship a common law marriage with intent to marry, basically a creation of constructive trust. However, the laws and statute of New York State do not provide for a finding of common law marriage to determine equitable distribution. This Court will have to find that Defendant has proven the elements necessary to show a creation of a constructive trust for the equitable distribution of the assets prior to marriage.
Ability to earn and potential earning capacity
Plaintiff and Defendant are in good health, although Plaintiff is on disability caused by his military service. Defendant testified that she has medical issues. However, there is no evidence to support Defendant's claim. Presently, Plaintiff and Defendant are employed.
Defendant has failed to disclose her correct income and failed to provide an accurate Statement of Net Worth. Defendant has a license and ability to earn income based on her work history and experience during the marriage. Defendant testified, in support of her application for maintenance, that she is unable to be self-supporting. Conversely, Defendant testified, for her application for equitable distribution, that she worked during the marriage and saved her money in bank accounts and by " Sou Sou" which she used to contribute to the purchases of the assets. In addition, she further testified that she maintained the household and child's expenses.
Reduced effect to earning
There is no evidence that Defendant is unable to seek and find gainful employment. Defendant testified that she has medical issues that limit her ability to seek gainful employment. However, she further contradicted herself when she testified that her license was suspended. Presently, Defendant is employed but testified that she is unable to meet her household expenses. Lacking in evidence is Defendant's current Statement of Net Worth with W2 and tax return to show her current income and expenses. Ironically, Defendant testified that her income was sufficient to make purchases, maintain the marital home, buy food and clothing during the marriage and later contradicted herself that unable to be self-supporting.
Of note, Defendant received an award of temporary maintenance effective January 2013. Assuming Defendant is entitled to an award of final maintenance, she has had the benefit of that award since January 2013. Given this short term marriage of six years, the reasonable applicable duration is approximately one-third of the years of marriage or at most one-half of the marriage term. Defendant's pendente lite maintenance has exceeded both durational time periods. Moreover, Defendant has the capacity to potentially earn income given her experience and good health and to be self supporting.
Based on the above analysis, Defendant has failed to maintain her burden of proof for a final award of maintenance. Defendant's application for an award of final maintenance is denied. The pendente lite maintenance as of January 2013 terminates effective October 31, 2015. Plaintiff shall receive a credit for all payments made after October 2015 toward his child support payments or arrears.
CONSTRUCTIVE TRUST
Defendant testified that she was given an engagement ring by Plaintiff with the intent to marry. Further, she testified that she relied upon Plaintiff's promise to marry and pooled her money with his to buy the marital residence and the automobiles. Based on this, Defendant claimed that a constructive trust was created prior to the marriage.
The Court of Appeals has outlined the factors necessary for a constructive trust. "In the development of the doctrine of constructive trust as a remedy available to courts of equity, the following four requirements were posited: (1) a confidential or fiduciary relation, (2) a promise, (3) a transfer in reliance thereon and (4) unjust enrichment " Sharp v Kosmalski, 40 NY2d 119, citing, Janke v Janke, 47 AD2d 445, affd. 39 NY2d 786; Foreman v Foreman, 251 NY 237; Sinclair v Purdy, 235 NY 245.
There is no dispute that the parties were in a romantic relationship from 1996. They resided in an apartment prior to purchasing the marital residence in August 1999. Their son was born in November 1999. The investment property was purchased in 2003. The automobiles were purchased some around 2001 and 2005. The date of marriage was August 2006.Plaintiff is a member of the military and Defendant is in the health care industry. Plaintiff has another child prior to marriage that is older than the parties' son. Although they resided together, with the exception of the purchase of the Time Share which is titled in join names, there is no evidence of a joint bank account or joint ventures with pooled money prior to marriage.
Defendant testified that an engagement ring was given to her with a promise by Plaintiff to marry her. Defendant did not establish the date of this promise. There is no evidence of the engagement ring. Defendant testified that Plaintiff stole the ring and her jewelry. There is no evidence of the value of the ring or date of purchase of the ring. Notably, the parties continued living together in the same lifestyle without pooling their income for any joint ventures. Defendant proffered that she did not have good credit to put her name on the deeds or title for the automobiles but failed to show any document to support her testimony. However, Defendant and Plaintiff jointly purchased the Time Share and it was jointly titled proving that Defendant had knowledge of her rights when assets are purchased together. Defendant received a large award for a personal injury case, kept it separately and there was no commingling of her money with Plaintiff's. Defendant did not show how she relied on the promise to her detriment. Except for the Time Share, all the other assets were purchased with Plaintiff's separate funds. There was no change in the living lifestyle in the relationship from 1996 to 2006 and this style continued the same throughout the marriage.
Defendant's mere testimony of a romantic relationship, that she was aware of the purchases and that all the titles are in Plaintiff's name do not establish that Plaintiff was unjustly enriched. Defendant must show more than a romantic relationship. There must be sufficient credible evidence that Defendant participated and lost any of her income or changed personally due to the promise of Plaintiff. See, George Malone & Co v Rieder, 19 NY3d 511.
Based on lack of the evidence, Defendant has failed to maintain her burden of proof to show that a constructive trust was created between the parties prior to the marriage. See, Sharp v Kosmalski, 40 NY2d 119, supra.
Therefore, the Court analyzes each asset acquired during the marriage and the contribution made for equitable distribution.
EQUITABLE DISTRIBUTION
Marital property is defined in DRL § 236(B)(1)(c) as "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held." The statute provides that separate property is not included within the definition of marital property which is defined in DRL § 236(B)(1)(d). DRL §236(B)(5)(a) provides that in matrimonial proceedings, the court shall "determine the respective rights of the parties in their separate or marital property." While the statute provides that separate property shall remain as separate property, marital property shall be equitably distributed, considering the circumstances of the case and the parties. To determine an equitable distribution of the property, DRL §236(B)(5)(d) requires that the Court considers the fourteen factors.
The Court of Appeals has held that marital property should be "construed broadly in order to give effect to the economic partnership' concept of the marriage relationship recognized in the statute" Price v Price, 69 NY2d 8, 15 (1986). On the contrary, separate property, "which is described in the statute as an exception to marital property . . . should be construed narrowly. Id. at 15. Thus, the structure of DRL § 236, "creates a statutory presumption that all property, unless clearly separate, is deemed marital property' and the burden rests with the titled spouse to rebut that presumption" Fields v Fields, 15 NY3d 158, 163 (2010), quoting DeJesus v DeJesus, 90 NY2d 643, 652 (1997).Contribution, as defined by the Appellate Courts, can be economic or non-economic. See, Morille-Hinds v Hinds, 87 AD3d 526, (App Div, 2nd Dept 2011) citing, Holterman v Holterman, 3 NY3d 1, 8 (2004); Morille-Hinds v Hinds, 42 Misc 3d 1230(A) Sup Ct, Qns Cty 2014.Defendant failed to show she contributed any money or participated at any of the closing of the real properties or during the purchases of the automobiles. Plaintiff's separate funds were used for each purchase. There is no dispute that Defendant made non-economic contribution. However, contribution must be more than minimal to the marriage ( Barnes v Barnes, 106 AD2d 535) and a clear showing of a financial partnership. See, Dugan v Dugan, 238 AD2d 741. Curiously, Defendant makes no mention of her income, her bank accounts and retirement account to be considered for equitable distribution in support of her argument of a joint financial partnership. Instead, Defendant seeks to have her assets remain separate.
Upon review of Defendant's Verified Answer, she seeks equitable distribution with respect to the real properties and one automobile. She did not seek any equitable distribution from the bank accounts. For equitable distribution there must be a showing of a financial partnership and contribution either economic and non-economic. Plaintiff and Defendant worked during the marriage. There were no joint ventures, joint tax returns or joint bank accounts. Each deposited their income separately and used their income separately for marital expenses. It is unclear what is the correct income for Defendant since all of her correct income was not reported to the Internal Revenue Service.
Plaintiff and Defendant lived together, did not comingled their income and bank accounts, managed the household expenses with their separate income and jointly cared for their child. This Court finds, based on these set of facts, there was no financial partnership during this six-year marriage and at most minimal contribution by Defendant. See Dugan v Dugan, 238 AD2d 741. 165-15 Foch Boulevard Blvd., Jamaica , NY
This property is known as the marital residence. This property was purchased prior to marriage on or about August 11, 1999, with Plaintiff's separate funds which he received from a loan from his FERS Thrift Savings Plan. The parties resided in this property with the two children from the date of marriage until the date Defendant vacated. Albeit, the parties lived together prior to marriage. Defendant testified that she contributed $3,000.00 toward the purchase of this property with monies she received from her "Sou Sou." Assuming this is credible, the purchase was made prior to marriage and Defendant may only be entitled to her alleged contribution of $3,000.00. Moreover, Defendant has failed to produce any witness to support her testimony of the "Sou Sou." Defendant relies on her argument that a constructive trust was created prior to marriage rather than showing a financial partnership. Defendant admitted that she did not contribute to paying any carrying charges on this property. There is evidence that Defendant made non-economic contribution by assisting with the decorating, furnishing, up keeping and purchasing food and cared for the child, although noting that both parties worked and the child was primarily cared for by family members. Based on these set of facts, Defendant's non-economic contribution is deemed to be minimal for the six-year period of this marriage. See, Dugan v Dugan, 238 AD2d 741, supra.
Therefore, Defendant shall be awarded a reasonable equitable distributive award on the martial residence for her minimum non-economic contribution to this property for six (6) years.
In addition, the Defendant shall be awarded the following personal items in the martial residence: the livingroom set, the curio, the coffee table and her bedroom set. All other items are awarded to Plaintiff. Defendant must remove these items within 30 days from the date of entry of this Order. The attorneys shall make an arrangement for a date and time for removal. If Defendant fails to remove these personal items, they shall be deemed the property of Plaintiff. 353 Beach 70th Street , Averne , New York 11692
This property was purchased prior to marriage on or about August 22, 2003, with funds Plaintiff acquired from refinancing the marital residence. This is a rental investment property with a building superintendant that maintains the upkeep of this property. The rental income is used to maintain the mortgage on this property. Defendant admits that she did not make any financial contribution to this property but testified that marital funds were used to purchase this property. Further, Defendant testified that she collected rents when Plaintiff was deployed. However, the applicable law is that Defendant has the burden to show that her non-economic contribution directly enhanced the value of this property. There was no testimony that Defendant provided any other contribution other than collecting rents. Merely collecting the rents alone does not demonstrate direct contribution which increased the value of this property other than market forces. See, Davidman v Davidman, 97AD3d 627 (App Div 2nd Dept.). This property is deemed Plaintiff's separate property purchased prior to marriage.
Therefore, Defendant is not awarded any equitable distributive share from this property. 223rd Street Property
This property, located at 100-47 223rd Street, Queens Village, NY, was purchased June 2000, prior to the marriage. This property is titled in Plaintiff's name together with a family member. Defendant testified that marital funds were used to purchase this property for Plaintiff's family. This Court has found that there is no financial partnership and constructive trust was created prior to marriage. Defendant has failed to show from what source of her funds she made contribution this property.
Therefore, there is no equitable distributive award to Defendant. Interval Time Share
Prior to marriage, on or about May 14, 2001, Plaintiff and Defendant purchased a Time Share at the Palms County Club and Resort Condominium Association, Inc. (hereinafter referred to as "Time Share") which is titled in both names. In order to purchase this Time Share, a joint bank account was opened. Curiously, soon after the purchase, the joint bank account was closed. This contradicts Defendant's testimony for not having her name put on the deeds of the real properties and the titles of the automobiles purchased prior to the marriage. Interestingly, Plaintiff was the sole person who paid the maintenance on this property. This Time Share is presently in default of its maintenance payments.In as much as Plaintiff being the sole person who made the maintenance payment, this property was jointly purchased and titled and it will be distributed equally.
This Time Share shall be sold within 60 days of the date of the Order and the proceeds shall be divided equally after deducting all debts and costs incurred. Plaintiff and Defendant must cooperate with the sale and execution of all documents to effectuate the sale of this Time Share. Vending Machines
Sometime in 2001, prior to the marriage, Plaintiff purchased, with his separate money, approximately four to eight vending machines located in some laundromats in Brooklyn, Queens and Nassau. Plaintiff maintained these vending machines and used the income generated for restocking. However, when Plaintiff is deployed on his military duties, Defendant and Plaintiff's oldest child assisted in maintaining and restocking the vending machines with the income generated from the vending machines. Defendant testified that she did this approximately once or twice per week during Plaintiff's absence. The income from the vending machines was not established, although speculated. The approximate value of each is $500.00, as testified and there is no other evidence to dispute this testimony. It is unclear whether there are four or eight vending machines still remaining as of the date of commencement of this action. There is no evidence by Defendant to show the number of vending machines remaining or their value as of the date of commencement of this action. Although Defendant testified that Plaintiff used marital funds to purchase and maintain the vending machines, there was no evidence to support her testimony. The evidence clearly showed that the vending machines were self-supporting from the proceeds generated from the vending machines.
Defendant is awarded an equitable distributive share for her minimal non-economic contribution during Plaintiff's military duties. Automobiles
Plaintiff purchased three automobiles prior to marriage with his separate funds. The automobiles are titled in Plaintiff's name. The 2001 Pathfinder was purchased in 2004. The 2004 Dodge Durango was purchase in 2004 and given to Defendant as a gift.Defendant testified that Plaintiff used her money to purchase the 2004 Durango automobile. Defendant's testimony primarily centered toward the 2004 Durango and there was no testimony of how she contributed to the other automobiles. In addition, Defendant specifically refers to the 2004 Durango in her Verified Answer. The 2001 Hyundai was purchased in 2005.
The 2011 Dodge Durango was purchased with a loan secured by Plaintiff in 2011. There is an outstanding debt of approximately $29,050.00. There is no proof of the blue book value of this automobile. There is no dispute that Plaintiff made all the financial payments on this automobile.
Defendant testified to a constructive trust or common law marriage prior to marriage that should be applied to her distributive share in distributing these vehicles. This Court determined differently above.
Therefore, Defendant shall be awarded the 2004 Dodge Durango. The parties' stipulated at trial that this automobile was already transferred to Defendant. Defendant shall have sole use and title of this automobile. Defendant shall be responsible for all maintenance and use of this automobile effective as of the date of transfer.
The two automobiles, 2001 Pathfinder and the 2001 Hyundai, shall remain Plaintiff's separate property and there is no distributive award to Defendant for these two automobiles. Plaintiff shall have sole use and title of these automobiles.
There is no proof that Defendant contributed to paying any of the loan on the 2011 Dodge Durango. Plaintiff is awarded the sole use and title and ownership of this automobile and is the sole person responsible for the debt.
Lump Sum Equitable Distributive Award
Defendant is awarded a lump sum equitable distributive share of $10,000.00 for her non-economic contribution to the marital residence and vending machines. Pension , Brokerage and Retirement Accounts , Bank and Investment Accounts
Plaintiff and Defendant acquired bank accounts that are titled in their individual names prior to and during the marriage. There is no pooling or commingling of any income or funds into the individual bank accounts. The marital expenses were paid by Plaintiff partly from the rental income from both properties and his income. Defendant contributed her income to food and clothing for herself and the parties' child. The accounts acquired include savings, checking, CDs, IRAs, brokerage account and pension/retirement accounts. Plaintiff seeks an equitable distributive award from Defendant's retirement accounts but not her bank accounts. Defendant seeks equitable distribution from all of the bank accounts, investment accounts and retirement accounts titled in Plaintiff's name.
Based on the above, Plaintiff and Defendant are awarded all of their individual bank accounts, including IRAs and CDs that are titled in their respective names or opened in the name of the Plaintiff's child or the parties' child of the marriage. These accounts include: all savings, checking, CDs, IRAs and Roth IRAs. All of these accounts are marital assets with no contribution.
The accounts that were opened in the name of or for the benefit of the parties' child, K. T., shall remain in effect until the age of emancipation with the party who acquired the account being the trustee of such account.
Pursuant to the Majaskus formula, Defendant is awarded a thirty-five percent (35%) share, from the date of marriage (August 2006) to the date of commencement (November 2012), of Plaintiff's retirement plan with the United States Military Retirement Benefits (known as the FERS Thrift Savings Plan) from his direct contribution made during the marriage and not from any roll over contribution made prior to August 2006. Defendant is also awarded a thirty-five percent (35%) distributive share of Plaintiff's retirement plan held with Federal Bureau of Prisons from the date of marriage to the date of commencement of this action. Plaintiff is awarded an equitable distributive share from the date of marriage (August 2006) to the date of commencement (November 2012) of thirty-five percent (35%) of Defendant's retirement plan held with 1199 Pension plan. See, Majaskus v Majaskus, 61 NY2d 481.
A Qualified Domestic Relations Order (hereinafter referred to as "QDRO") shall be submitted to the Court with the Plans approval for distribution. The cost for the preparation of the QDRO shall be shared equally. Bank Account in Jamaica , WI
Defendant testified that Plaintiff transferred marital funds to the Island of Jamaica, W.I. into a bank account at National Commercial Bank which was opened in 1985. Defendant has failed to show she contributed to this account or that marital funds were deposited into this account from any joint bank account or her account. There is no certified bank record of the value of this account in United States currency.
Based on the finding of no economic partnership, there is no equitable distributive award to Defendant from this account. Professional Degree , Certificate or License
There is no award for equitable distribution to Plaintiff and Defendant. Plaintiff is awarded the full value of his college degree and Defendant is awarded the full value of her professional certificate or license.
JEWELRY
Defendant testified that a diamond ring was given to her sometime in 1995 and later replaced by another as a promise of marriage. She also testified that other jewelry was purchased by Plaintiff and given to her during their relationship. However, there is no evidence to show any of the jewelry, their value or that the jewelry existed as of the date of commencement of this action.
Therefore, there is no award for the claim of jewelry or the alleged value.
PHOTOGRAPHS AND VIDEOS
Defendant did not testify to any photographs or videos of the parties' child but seeks same in her post-trial brief. There is no evidence and therefore there is no award.
CHILD SUPPORT
New York Domestic Relations Law § 240 (1-b) codifies the Child Support Standards Act (hereinafter referred to as "CSSA"). CSSA provides a numeric formula for calculating child support awards. The Court must calculate each party's annual income. According to DRL §240 (1-b)(b) (5), income is defined as gross (total) income as should have been or should be reported in a party's most recent federal tax return, investment income reduced by sums expended in connection with such investment, to the extent such income is not reported on the party's tax return, income or compensation voluntarily deferred and income received from workers' compensation, disability benefits, unemployment insurance benefits, social security benefits, veteran benefits, pension and retirement benefits, fellowships and stipends and annuity payments. DRL § 240 (1-b)(5)(iv) grants the court discretion to impute or attribute income from other resources if there is insufficient evidence to determine income.
Plaintiff's income is determined to be $83,979.34 plus his disability income of $17,184.00, for a total yearly income of $101,163.34. The Statement of Net Worth placed in evidence on behalf of Defendant is missing relevant information and Defendant's testimony lacks credibility. Defendant's testimony was inconsistent as to her correct income and her earning potential. Clearly, Defendant does not report all her correct income. Based on the lack of sufficiency and credible evidence by Defendant, the Court imputes income to Defendant in the sum of $39,000.00 based on her income during the marriage, her work history, her potential ability to earn income with her professional license and work experience.
Defendant is deemed the custodial parent and is awarded child support of 17% of the combined parental income effective from the date of application. A child support worksheet shall be provided with the correct calculation of child support payment pursuant to CSSA guidelines retroactive to date of application. In addition, the pro rata responsibility shall be calculated for all out of pocket medical expenses. The agreement between the parties for equal responsibility for the private school tuition shall remain the same. Both parents shall be equally responsible for all add-ons' expenses for the child. An affidavit of the accounting of all arrears or credits shall be provided with the final papers and shall be deducted or included against the equitable distributive award above.
Plaintiff's application for a deviation from the presumptive amount of child support is denied.
MEDICAL
In the Preliminary Conference Order dated April 10, 2013, both parties acknowledge that they were notified of DRL §255 that they will be responsible for their individual health coverage upon the termination of this marriage. This requirement is deemed satisfied.
The parties' child shall be covered by an applicable health insurance plan. A Qualified Medical Child Support Order must be provided with the final papers together with a registry check pursuant to DRL §240(5).
ARREARS
All arrears or overpayment for maintenance and child support shall be deducted from or added to the distributive share awarded above.
LIFE INSURANCE
Plaintiff acquired a life insurance from Madison National Life Insurance Company which is held as an Annuity. This life insurance was acquired prior to marriage. As of 2006, the value was $4,515.43. The yearly deposit was $408.00. Defendant was not a beneficiary on this life insurance nor did she make any contribution to this policy. Notably, this Court has determined that there was no financial partnership during this six-year marriage. Plaintiff liquidated this Annuity in 2012 for a value of $11,534.21. In addition, Plaintiff paid applicable taxes in the sum of $2,116.02. Assuming this is a marital asset, which this Court does not find, the portion to be distributed is $4,902.76. Defendant argues that marital funds were used to pay this life insurance. This argument is flawed since there was no commingling of income during the marriage.
Based on all the above, there is no equitable award to Defendant from this life insurance policy.
Plaintiff acquired a life insurance with USAA in March 2011. This action was commenced November 2012. The insurance was opened for the benefit of the child of the marriage and Plaintiff's older child.
There is no equitable distribution to Defendant from this life insurance.
However, Plaintiff must maintain a life insurance in the sum of $100,000.00 for the benefit of the child of the marriage, "K. T.", until the age of emancipation within 60 days of the date of entry of this Order. Defendant must be added as the trustee. Proof must be submitted with the final papers.
In addition, Defendant must maintain a life insurance in the sum of $100,000.00 for the benefit of the child of the marriage, "K. T.", until the age of emancipation within 60 days of the date of entry of this Order. Plaintiff must be added as the trustee. Proof must be provided with the final papers
DEBTS OR LOANS
There is no evidence with respect to credit card debts. Therefore, Plaintiff shall be responsible for all credit card debts titled in his name and, likewise, Defendant shall be responsible for all credit card debts titled in her name.
There is on evidence of joint credit card debts.
Defendant's application for 50% credit for the loan Plaintiff made to a third party is denied based on the finding of no financial partnership.
FEES
The appraisal costs, expert fees, transcript fees and fees for the Attorney for the Child shall be reallocated pursuant to the CSSA calculation with respect to each parent responsibility. Plaintiff shall be credited for any money paid and the payments are deemed reallocated as the CSSA pro rata responsibility.
All credits shall be deducted from the distributive award or credited toward child support payments.
ATTORNEY FEES
This Court had made an initial award of $6,500.00 in attorneys fees to Defendant's attorney. Defendant's application for additional attorneys fees is denied.
GROUNDS
In the Preliminary Conference Order dated April 10, 2013, the parties agreed to terminate the marriage, pursuant to DRL §170.7, based on the marriage being irretrievably broken for a period of six months or more prior to the commencement of this action. The residency requirement is satisfied pursuant to DRL §230. Defendant may resume the use of her maiden name. Plaintiff shall be responsible for removing all barriers toward Defendant's remarriage pursuant to DRL §253.
Based on the evidence, a final judgment of Divorce is issued in favor of Plaintiff pursuant to DRL §170.7. This marriage was irretrievably broken for at least six months prior to the commencement of this action and all the economic issues, custody, visitation and child support are resolved in this Court's findings above. The termination of marriage shall be subject to the submission of the final papers and upon the signing of the judgment by this Court.
The above constitutes the Decision and Order after trial.
Submit Final Papers with Notice of Settlement with proof of Plaintiff and Defendant social security numbers and dates of birth and likewise the same for the child.
Enter Order on Notice.
So Ordered, Dated: March 11, 2016 Queens, New York ___________________________ Hon. Pam Jackman Brown, JSC