Opinion
No. 50408/2011.
07-09-2014
L.R., Plaintiff, v. C.R., Defendant.
Kathleen M. Garrigan Esq., Staten Island, Attorney for Plaintiff. Defendant Pro Se, (Redacted to C.R.). Roseann Scotto DiRinaldi, Staten Island, Attorney for the Subject Child.
Kathleen M. Garrigan Esq., Staten Island, Attorney for Plaintiff.
Defendant Pro Se, (Redacted to C.R.).
Roseann Scotto DiRinaldi, Staten Island, Attorney for the Subject Child.
CATHERINE M. DIDOMENICO, J.
Procedural History
By Summons with Notice dated April 27, 2011, Ms. L.R. (hereinafter “Wife” or “Mother”) commenced this action for divorce against Mr. C.R. (hereinafter “Husband” or “Father”). The Law Office of Soren and Soren filed a Notice of Appearance and Demand for Complaint on behalf of Husband on or about May 24, 2011. Wife responded with the filing of a Verified Complaint on or about October 19, 2012. Husband has never answered Wife's Complaint.
The parties were married in a civil ceremony on July 23, 1999 which was followed by a religious ceremony held in Sturbridge, Massachusetts on October 1, 2002. There are two children of this marriage Olivia (age 10) and Brian (age 8). Both parties seek, among other relief, an order of sole legal and physical custody, equitable distribution, child support, and an award of counsel fees. Wife also seeks an award of maintenance. If granted custody, Wife intends to reside in Sturbridge, Massachusetts where her parents have made a private home available to her and the children free of charge. By Order dated March 26, 2011, the parties agreed that Wife would be granted a divorce on the grounds that the marriage has broken down irretrievably pursuant to Domestic Relations Law § 170(7) after the remaining issues have been adjudicated. (Jud. Notice No. 3).
Wife has been represented throughout this proceeding by Ms. Kathleen Garrigan Esq. Husband was first represented by Ms. Karen Soren Esq. from the beginning of this case until she was relieved without objection by Order dated July 22, 2013. Thereafter, Husband represented himself until the start of trial in June 2013 when he retained Mr. Michael Heitmann Esq. as trial counsel. Mr. Heitmann remained as counsel until November 15, 2013 when Husband consented to Mr. Heitmann being relieved and elected to represent himself for the remainder of the trial. By Order dated May 27, 2011, Ms. Roseann DiRinaldi was appointed as attorney for the children. By Order dated September 16, 2011, Dr. Paul Hymowitz was appointed to conduct a Court Ordered forensic evaluation in this case. He testified before the Court on July 24, 2013. His report was received into evidence on consent as Defendant's Exhibit A. Neither party objected to his qualification as an expert in the field of forensic psychology with a specialization in child custody evaluations.
By Notice of Motion dated May 26, 2011, Wife moved for spousal support, child support and an award of counsel fees. By Order dated November 23, 2011 (the “Pendente Lite Order”), Husband was ordered to pay temporary maintenance in the amount of $1,792.45 per month, child support in the amount of $350 per month, and it was further ordered that the parties would split the cost of the children's extracurricular expenses equally. In addition, Husband was ordered to continue to pay the encumbrances on the home in the collective amount of $2,644.83 (mortgage, second mortgage, home equity line of credit) as well as the homeowner's insurance, water bill and one half of the parties' car insurance. Wife was ordered to pay a number of expenses as specified in that Order including the utilities and landscaping costs associated with the marital home. For the reasons set forth in the Pendente Lite Order, and in light of the financial obligations imposed on Husband in that Order, Wife's application for counsel fees was denied at that time without prejudice.
Husband admits that he has not complied with all of his obligations under the Pendente Lite Order. The first mortgage, second mortgage and home equity loan are all in arrears, having not been paid since October of 2011. By Order dated May 26, 2011, Ms. Heidi Muckler was Ordered to appraise the parties' marital interest in “Marsala Pizza” (a pizzeria owned by Husband and his parents in Florida), and the value of “BL & OM & The Gypsy, LLC”, (a snow plow business owned by Husband). While Husband paid Ms. Muckler's retainer, he never complied with the Order in that neither he nor his accountant brother, Alfred R., ever provided the financial records necessary to value the businesses. Accordingly, Ms. Muckler was unable to provide a report to the Court. Moreover, while Husband paid Ms. Muckler's retainer by credit card, he later discharged that charge in bankruptcy. An appraisal was also ordered to determine the marital interest in a condominium in Florida co-owned by the parties and Husband's parents. However, without any notice to Wife, Husband and his parent's, allowed that home to be lost to foreclosure before the Court Ordered appraisal could be conducted.
Husband also admits that he sold the truck and plow necessary to operate the snow plow business. The sale of this equipment was done without court permission and in violation of the Automatic Orders of this Court. See 22 NYCRR 202.16–a. Husband did not share any of the proceeds of the sale of this equipment with Wife. The loss of the truck and plow resulted in the unilateral closure of this business.
Wife filed for bankruptcy protection on January 24, 2012. On May 3, 2012 Wife was discharged of approximately $24,000 in credit card debt. Husband first filed for bankruptcy protection in 1999 prior to the marriage. Husband filed for bankruptcy a second time in March of 2012. In March of 2013, Husband was granted discharge of over $150,000 in consumer debt. Among the debts successfully discharged by Husband was the bill associated with his prior counsel, the Law Firm of Soren and Soren, in the amount of $15,323 and a loan by Husband's parents in the amount of $50,000 allegedly used to fund counsel fees to Husband's trial attorney, Mr. Michael Heitmann. Esq.
The Trial
This case was tried on June 14, 2013, June 24, 2013, September 19, 2013, October 17, 2013, October 25, 2013, November 15, 2013, November 18, 2013, December 12, 2013, December 16, 2013, January 10, 2014, January 27, 2014, February 27, 2014, March 11, 2014, March 17, 2014, and March 21, 2014. An in camera of the children was held on April 7, 2014. Plaintiff Wife testified on her own behalf and called the following witnesses: 1. Mr. Joseph W. (Plaintiff's father); and 2. Ms. Lori W. (Plaintiff's sister). Ms. Lori W. was also appointed as supervisor for Husband's initial visitation with the children. See Order dated May 26, 2011. Plaintiff introduced various documents into evidence (Pl.Ex.1–95). Defendant Husband testified on his own behalf and called the following witnesses: Dr. Paul Hymowitz (forensic evaluator) and a rebuttal witness Mr. Jim B. (Defendant's friend). Husband introduced various documents into evidence (Def A, M, U, V, W, Z, AA). Judicial Notice was taken of several documents (Judicial Notice 1–6 ).
At trial, Wife claimed that Husband's conduct evidenced a pattern of abusive treatment towards her and a willful failure to comply with this Court's Orders regarding finances. Wife argues that Husband's history of domestic violence and financial instability has left her with no choice but to seek residence in Massachusetts where she can avail herself of the financial and emotional support offered by her family. Wife claims that Husband's financial abuse is intended as retaliation against her for seeking an Order of Protection from the Family Court and for filing for divorce. Wife alleges that Husband used finances as an instrument of power and control by first allowing the marital home to fall into foreclosure causing Wife and the children to live under the constant fear of eviction and then offering to remedy the situation as long as Wife would agree to remain living here on Staten Island. Wife also claims that this prolonged trial is retaliatory in nature as the parties always planned on moving to Massachusetts after Husband retired from the FDNY in January of 2011. Wife claims that despite Husband's assertions that he can save their house, his controlling personality and his admitted gambling addiction make it untenable and potentially unsafe for them to remain in this geographic area.
Husband claims that he lacked sufficient funds to comply with the Pendente Lite Order of this Court. Husband makes this claim despite the fact that Wife was concurrently ordered to pay various expenses for which Husband was previously responsible. As argued by the Attorney for the Children, the Pendente Lite Order of this Court arguably resulted in a lower monthly financial obligation after Wife's assumption of various bills associated with the marital home. The Order also reduced Husband's prior child support obligation of $300 a week to $350 a month. Further, the Court notes that Husband neither appealed the Pendente Lite Order, nor sought to reargue it. Rather, Husband simply chose not to abide by certain aspects of the Order.
Husband admits he has a gambling addiction but claims that he has it under control. Husband has filed for bankruptcy on at least two occasions and has been involved in at least two failed investments, but denies that he is fiscally irresponsible. Husband claims that Wife caused their financial troubles when she had him arrested, filed a Family Offense Petition, and filed for divorce. However, these events had no effect on Husband's fixed monthly pension income. Husband nets approximately $4,792 per month as a retired firefighter and works a side security job earning $15.00 an hour. Husband claims that this income is insufficient to meet his Court Ordered obligations, particularly after he agreed to pay his sister $1,200 per month in rent. While Husband chose not to pay the mortgage associated with his children's residence, he paid his sister because she relied upon his rental income to pay her mortgage. Husband anticipates to net around $6,000 a month once his service pension is finalized. However, he hopes to earn more than $9,000 per month in the event his application for a disability pension is approved. The Court notes Husband's updated Statement of Net Worth contains no monthly income figure but states that he currently earns $62,795 a year from his pension.
Findings of Fact
At trial, both parties testified to a litany of events that occurred during the course of their marriage and throughout this hard fought litigation. Rather than recount each incident, this Court discusses herein only those significant events that weighed most heavily in this Court's custodial decision.
Plaintiff Wife.
Wife was born on August * *, * * * *. She is currently 42 years old. Wife was born and raised in Southbridge, Massachusetts. Wife's highest level of education is high school. In 1989, she earned a license as a beautician in Massachusetts but has not worked in that field since her relocation to Staten Island in 1999. The highest annual income she has earned was as a hairdresser in 1998 when she earned approximately $10,000. Despite moving to New York, Wife credibly testified that she has maintained her license in Massachusetts because the parties always intended to return there at some point in their lives.
The parties met in or around 1992 when Wife was 20 years old and Husband was 28. At that time, Wife was living with her parents in Massachusetts. During their courtship, Husband routinely visited her in Massachusetts. Wife was aware that Husband suffered from a long standing gambling addiction. She regularly attended Gamblers Anonymous meetings with him to support his efforts to overcome his addiction. Over the course of the marriage, Wife realized that Husband's attendance at Gamblers Anonymous did not have any sustained effect on his addiction as he continued to gamble with bookies and in Foxwoods Casino. Wife admits that from time to time she played slot machines alongside Husband despite the fact that she knew of his addiction.
The parties purchased the former marital residence located at * * Winfield Street, Staten Island, New York in February 1999. Approximately six months after they bought this home, the parties were married in a civil ceremony on July 23, 1999. In October 1999, eight months after buying the marital home, Husband filed for bankruptcy protection for the first time which resulted in the discharge of a number of debts and liabilities. In his written trial summation, Husband admits that this bankruptcy filing was “caused primarily by my gambling at Foxwoods [Casino] and through bookies”. (Def.Summation, p. 12).
Olivia was born on September * *, * * * *. Brian was born on July * *, * * * *. Throughout the course of the marriage Wife was the primary caretaker of both children. Husband was employed by the New York City Fire Department. After the children were born, Husband continued to work at the firehouse and indulge in his pastime pleasures including gambling and attending professional football games.
1. Husband's Treatment of Wife.
Wife credibly testified that throughout the course of the marriage, and particularly during the course of her two pregnancies, she was regularly degraded and humiliated by Husband. He called her profane disgusting names. He constantly referred to her as “slow”, “retarded”, “stupid” and a “moron” whenever he was displeased with something she did or allegedly failed to do, or when he sustained gambling losses which he routinely blamed on Wife. He would scream at Wife for being quiet and introverted claiming she did not know how to socialize with people and was not competent in a social setting. In his view, she should become more interesting and worldly by watching the way he interacts with people and by watching the news. (Tr. 1/17/14, p. 61). He would call her family and friends telling them that she was “crazy” and “acting erratically” when he got angry at her. He forced her to have sex because it was her “duty” and refused to allow the use of a condom claiming he wanted her to get an STD or AIDS. (Tr. 11/15/13, p. 87). *
* After an Order of Protection was granted to Wife, she came home to find that someone had placed “a whole bunch of condoms in [her] mailbox, wraps, open condoms, sealed condoms”. Husband denies any involvement with this event. Wife believes that Husband did this as retaliation for the May 26, 2011 Court appearance which imposed supervised visitation on Husband with Wife's sister as supervisor.
Husband's poor treatment of Wife often occurred in the presence of the two subject children. Husband routinely undermined Wife's authority as a parent. He was “bossy” and “controlled everything in the house” from bed time, to baths, to whether the family could go out to eat and if so, what restaurant. (Tr. 11/15/13, p. 62). Wife credibly testified that Husband often told the children that their mother was like a dim witted animal:
“He came up with a new one of I'm an ostrich with my head up my ass. He told the kids to imitate that..touch their head, touch their bottom, go like that when she's looking”. (Tr. 10/17/13, p. 23).
Indeed, Husband so often referred to Wife in this manner that the children began imitating this gesture and started referring to their mother in this disrespectful manner.
Husband was not very helpful in caring for the children when they were young. The few times Wife asked for his assistance, he refused to help claiming that he had friends who had multiple children and their “wives do it all”. (Tr. 10/17/13, p. 117). While she struggled to meet the children's needs and care for the home, Husband sat at the computer, watched TV or gambled. It was as if he had separated himself from the marriage as he spent more and more time meeting his own needs and ignoring those of his Wife and children. Husband did not become truly involved in the care of the children until after he retired in January and most particularly, after this divorce proceeding was filed.
Husband's poor treatment of Wife so affected her mentally and emotionally that she sought treatment for depression from the only physician Husband would allow her to consult, Dr. Kerry Kelly. The Court notes that Dr. Kelly is not a psychiatrist or psychologist. Dr. Kelly is the Fire Department's Chief Medical Officer and treated Husband and the children, although Dr. Kelly is also not a pediatrician. When Wife asked Husband if the children could be seen by a “real pediatrician” covered by their health insurance, Husband refused since he had made the determination that Dr. Kelly was sufficient.* * Dr. Kelly prescribed Wife Celexa to treat her depression. At various times and depending on his mood, Husband would either try to dissuade Wife from taking the medication or ridicule her for not taking it. On one such occasion, he told Wife she should take more anti depressant medication because the chicken she cooked for him was “dry and tough”. (Tr. 10/17/13, p. 118). Husband also threatened that if she ever tried to divorce him, he would tell the Court she was on medication which would prevent an award of custody to her. He repeated this threat to Wife's sister, Ms. Lori W., who credibly testified at trial.
* * Wife credibly testified that this was not the first time Husband controlled her access to health care. Just before their marriage, Husband insisted that Wife be treated for Obsessive Compulsive Disorder at the George B. Wells Human Service Center in Massachusetts. He claimed that Wife's cracked hands were an indication of her troubled mental state, rather than due to the harsh chemicals she was using as a hair stylist. Although Wife did not believe she needed mental health services, she complied because Husband threatened to break off their engagement if she didn't do what he asked. Husband insisted on accompanying Wife to the sessions so he “could explain who [she] was to the doctor”. (Tr. 10/17/14, p. 114).
As Husband's behavior became increasingly volatile, Wife withdrew further from the relationship. Husband continued working at the firehouse, gambling and socializing with his friends. He also made weekly trips to Weight Watchers and food shopping with a female friend. Husband believed Wife was incapable of food shopping and therefore, he had to do it. (Tr. 1/10/14, p. 14). He also routinely criticized Wife's housekeeping and cooking. Husband frequently spoke to Wife's sister about what he deemed to be Wife's inadequacies. On one such occasion Husband commented that he had married the “wrong sister”. (Tr. 12/16/13, p. 72).
In addition to verbal abuse, Husband has pushed, shoved and thrown things at Wife throughout the marriage. At trial, Husband denied throwing things at Wife but concedes he has thrown things in her presence. Wife credibly testified that over the years Husband has thrown, among other items, television remote controls, eyeglasses, pretzel rods and chairs at her when he was displeased about something. In or around October or November of 2010, during Ash Wednesday services at their church, Husband pushed Wife as she was on line to receive communion. Husband does not deny the incident but claims he “accidentally bumped into her”. (Tr. 11/15/13, p. 57).
Notwithstanding these incidents, Wife did not call the police or seek assistance until October of 2010. On that evening, the parties took the children to Perkins family restaurant. The children were misbehaving and she tried to tell them to stop jumping on the booth seat, Husband told her they could do what they wanted since they were having fun and instructed her to leave them alone. As the parties drove home, Husband berated Wife about “letting kids be kids”. When the parties returned home, Husband followed Wife upstairs, clearly agitated. An argument ensued and Wife suggested that they should separate because Husband was increasingly moody and unhappy with her. This infuriated Husband who grabbed a laundry basket and hurled it at her. Wife called 911 and huddled with the children in the living room near the front door to the house until the police arrived. (Tr. 6/14/13 pp. 98–105). Husband was removed from the home, but not arrested.
The day after the laundry basket incident Brian reported to his teacher that his father had been removed from the house by the Police. This resulted in the teacher calling the Administration for Children's Services who initiated an investigation. (Tr. 11/15/13, p. 152). During the course of that investigation, Husband compelled Wife to tell ACS that everything was fine in the home. While Wife was interviewed by an ACS caseworker, Husband remained outside the examination room and watched through the glass wall. When the ACS caseworker inquired if Husband's presence was intimidating her, Wife claimed that it wasn't. However, at trial Wife credibly testified that Husband told her that if she didn't tell ACS everything was fine, the children would be taken away from them and put into foster care. (Tr. 11/15/13, pp. 152–154). After the ACS investigation, Husband returned to the marital home and the parties attempted to reconcile their differences by attending marriage counseling. (Tr. 11/15/13, p. 71).
On April 13, 2011, Wife filed a Family Offense Petition (O–1858–11) against Husband which resulted in the issuance of an ex parte Order of Protection excluding him from the marital home. In that Petition, of which the Court takes judicial notice, Wife claimed that Husband had become increasingly violent and screamed and cursed at her on a daily basis. On April 18, 2011, the parties both appeared in Family Court and the Order of Protection was modified to include the two subject children. At or around the time of the issuance of the Order of Protection Husband called Wife's sister and told her that Wife was crazy and suicidal and that he would make Wife “pay” for requesting an Order of Protection. (Tr. 12/16/13, pp. 55–57). Wife filed for divorce on April 27, 2011. On June 3, 2011 Wife's Family Offense Petition was consolidated into this matrimonial action. During the course of these proceedings, Husband was arrested twice for alleged violations of the Order of Protection, on May 3, 2011 and again on August 9, 2011. Both of these arrests were dismissed before charges were filed against him in Criminal Court. Wife's Family Offense Petition was withdrawn on September 16, 2011.
2. Massachusetts.
During the marriage, the parties frequently went to Sturbridge, Massachusetts to visit Wife's relatives. Husband enjoyed a warm cordial relationship with Wife's family. They would stay at Wife's parents' home or at a hotel. Conversely, they did not see Husband's family often. Husband's parents live in Fort Meyers, Florida. Husband has two sisters on Staten Island, one sister in Texas and one on Long Island.
Wife and her father, Joseph W., both credibility testified that, if permitted to reside with the children in Massachusetts, Wife would move into her now vacant grandmother's home located at * * Fiske Hill Road. This private home sits on acres of land, has three bedrooms, a dining room, a kitchen and full bathroom. The home is currently owned by Mr. W. who credibly testified at trial that if Wife were permitted to live there with the children, he would not charge them any rent. Wife would be asked only to contribute “some portion” of the real estate taxes and her utilities, but if that proved too difficult, her father would pay those expenses as well. This home is located approximately 180 miles from Staten Island. Wife and her sister Lori W. both credibly testified that the parties planned to move to Sturbridge when Husband retired and that the children were excitedly counting down the days until they moved. (Tr. 7/14/13 p. 27); (Tr. 1/10/14 p. 16).
In the event that Wife and the children are permitted to reside in Sturbridge, Wife's suggests that pick up and drop off for Husband's parenting time should be at the “half way” point between Staten Island and Sturbridge. The parties have regularly used a restaurant in Connecticut off Route 15 as a mid point. This restaurant is between 70 and 80 miles from Staten Island. To compensate for the loss of weekday parenting time, Wife suggests that Husband be afforded extended parenting time in the form of additional weekends, holidays, school recesses and extended vacations. She has also researched hotels in the Sturbridge area which she found to be as inexpensive as $70.00 per night should Husband choose to visit with the children in Massachusetts. Finally, should Husband decide to move to Massachusetts near the children, then the parenting schedule could be revisited and expanded accordingly.
Defendant Husband
Defendant Husband was born on December * *, * * * *. The highest level of education obtained by Husband was High School. He began working as a New York City Firefighter on October 21, 1990. He remained working for the FDNY until January 2011 when he voluntarily retired on a service pension. The decision to retire was jointly made between Husband and Wife. Husband's service pension has not been finalized as he has a pending application for a disability pension from pulmonary illness and Gastroesophageal Reflux Disease (GERD) allegedly caused by Husband's employment as a firefighter in relation to the events of September 11, 2001.Husband currently earns $5,233 per month in retirement benefits. If Husband's disability application is granted then his monthly income will increase to approximately $9,000. Husband's retirement benefits are New York City and New York State tax free. In addition to his monthly income, Husband also has numerous retirement accounts, including a Compensation Accrual Fund, 457 Deferred Compensation Plan and at least one 401(k). Husband's reported income for 2011 (the most recent tax return made available to this Court) was $183,264. (Pl.Exs.58, 60, 64).
Husband admits that has had a gambling addiction that began before his marriage to Wife. He admits sustaining gambling losses through internet gambling, betting on sports events through bookies, and playing table games and slots at various casinos, including his favorite, Foxwoods Casino, which is located near Wife's family in Massachusetts. Husband claims to have not lost more than $1,500 per year gambling and claims that he has not used a bookie since 1999. His testimony on the subject of his gambling activities is not credible. It is also contrary to the amount of debt incurred during the marriage and discharged in his two bankruptcy filings.During the marriage, it is not disputed that Husband controlled all of the marital finances. He maintained all the bank accounts, paid all the bills, made all the borrowing decisions and used, at least some of these marital funds, to finance his gambling addiction. Husband had exclusive possession of all the financial records for the family which he kept in a duffle bag that he carried back and forth to the firehouse. Wife credibly testified that Husband repeatedly warned her not to go near the duffle bag.* * * Wife did not have access to a checkbook, debit cards, or any bank statements. She was prohibited from even opening the mail that came to the home.
* * * Indeed, after he was excluded from the marital home by Family Court Order dated April 13, 2011, Husband was granted the right to return with police escort to enter back into the premises to retrieve his personal belonging. He retrieved the duffle bag.
There were a number of questionable borrowing decisions made by Husband throughout the marriage. The parties took out a mortgage in the approximate amount of $164,000 when they bought the marital premises. Thereafter, the parties took out a number of loans using the marital residence as collateral. In 2005, the parties entered into a Consolidation and Modification Agreement. They also took out a line of credit in the approximate amount of $90,000. Although the parties represented to the lender that the proceeds would be used to improve the marital home, the proceeds were in fact used to invest in Marsala Pizza, a pizzeria being opened by Husband's father in Florida. Wife was concerned how they would repay these loans, but she was “not allowed” to get involved in the finances. Husband became a 20 percent co-owner of the pizzeria along with his parents. Husband boasted about how his friend John S. would go to Florida to pick up money from the pizzeria then fly the cash back to him. (Tr. 12/16/13, p. 83). Ms. Muckler was unable to complete her valuation of the pizzeria due to Husband's families' non cooperation. At trial Husband claimed that the pizzeria has no current value.
In addition to the pizzeria, Husband invested in a townhouse rental property with his parents which was located at * * * * * Via Solera Circle in Fort Myer's Florida. Wife's name was also added to the deed to that property and the parties were 50% co-owners with Husband's parents. Unbeknownst to Wife, during the course of this action, Husband and his parents allowed that property to fall into foreclosure when they stopped paying the mortgage. In or around September of 2013, Husband informed Wife that the house was the subject of a short sale authorized by his parents and that the parties would receive no return on their investment. (Tr. 9/19/13 p. 24–26).During the course of the marriage, Husband also opened a snow plow business. He was paid to plow out post offices after it snowed. During the course of this litigation, Husband sold the truck and the snow plow which resulted in the forfeiture of the business. Despite the fact that the business has no material assets Husband would not rule out that he might plow again in the future. In that regard, Husband has not dissolved the corporate entity known as “BL & OM & The Gypsy” despite the fact that he claims that it has no current value. (Tr. 3/11/14 p. 60–61)
In June or July of 2010, Husband approached Wife about applying for a loan in her name. Wife let Husband know that she was uncomfortable with the loan being in her name as she only had limited income at the time. Moreover she was afraid he would gamble the money away. (Tr. 9/19/13 p. 69). Despite Wife's reluctance, Husband forced Wife to apply for a Discover loan in the amount of $25,000. This occurred as the parties were driving. Husband called Discover credit services and began applying for a loan in her name. Husband told the loan officer that the loan was intended to invest in a beauty salon. When Wife did not want to take the phone to confirm the application, Husband began yelling and shoving the phone at her and ordering her to speak to the loan officer. Husband's demeanor caused Wife to fear for her safety and the safety of her children in the backseat. Wife got on the phone and confirmed that she was seeking a loan. (Tr. 9/19/13 p. 68–73). While Wife has never actually seen the loan check she knows she was approved and believes a check was issued and that the proceeds were taken by Husband. (Tr. 11/15/13, p. 115–116). To this day, Wife has no idea what was done with that money.
In March of 2012, after borrowing the maximum amount on a number of his credit cards, Husband filed for bankruptcy protection a second time. Included in the sums discharged were the counsel fees he owed his prior attorney Ms. Karen Soren Esq. and a $50,000 loan from his parents. In anticipation of filing for bankruptcy, Husband purchased a television at Walmart, electronics at Best Buy, and Mets and Jets Season tickets before discharging those debts. Husband also spent lavishly on dining out and purchasing gifts for his friends. Despite being free of consumer debt in March of 2012, Husband still refused to pay the mortgage as he was Ordered to do by this Court in its Pendente Lite Decision dated November 23, 2011.
Although Defendant receives $5,233 per month in retirement benefits from the FDNY and has substantial assets in a number of retirement accounts, he claims that he has no money to buy the children proper fitting clothing. Instead, he gives the children items donated to his friend's consignment shop which are often ill fitting, mix matched or completely the wrong size. This is particularly upsetting to Olivia who likes to have clean clothes that match, particularly when she goes to school. On more than one occasion Olivia has confided in Wife's sister, Ms. Lori W., that she was ridiculed at school for wearing mismatched or boys clothing. (Tr. 12/16/13, p. 118). Brian also suffered from a lack of adequate clothing. For example, when Brian accidently tore his coat Husband replaced it with a used coat that didn't fit properly and had a hole in its pocket. (Tr. 1/10/14 PP. 37–39). Husband obtained this coat, rather than one that fit, because he got it for free from his friend's consignment shop. (Pl.Ex.50, 51).
The marital home was the subject of a foreclosure Summons and Complaint filed on January 23, 2014. By Verified Answer dated February 10, 2014, Husband answered the Complaint in the foreclosure case and alleged, among things, that he was unable to make the required payments because a court order forced him out of the house. He also blamed the foreclosure on Plaintiff's alleged refusal to settle this divorce case. (Jud. Notice No. 5).
Olivia and Brian.
Olivia is currently 10 years old. She recently completed the 5th grade and graduated from P.S. 46. Brian is currently 8 years old and recently completed the 3rd grade at the same school. While both children have academic potential they are considered average students.
While Husband had very little interaction with the children when they were young, as they got older and Husband retired, he started to undermine Wife's parenting role resulting in the children having behavioral problems. Due to Husband's influence, the children realized that they did not have to listen to their mother. Rather than supporting the reasonable limitations placed on the children by Wife, Husband encouraged unhealthy behavior. Brian, who is overweight, was allowed to continue overeating and his behavior deteriorated. Brian has been receiving mental health services to deal with his tantrums and anger outbursts. (Tr. 10/17/13, p. 55). In addition, both children have been designated as having special needs. Both children have Individualized Education Plans after Wife insisted they be evaluated for services. Both children receive services in school for speech therapy, physical therapy and occupational therapy. Brian has been diagnosed as having ADHD.
An in-camera was held with each of the children on April 7, 2014. Both children have reached an age where they are capable of articulating their needs and preferences to the Court. See Lozada v. Lozada, 270 A.D.2d 422 (2d Dept.2000). Accordingly, the views of the children have weighed heavily in this Court's decision.
The Forensic Evaluator.
Based upon the facts presented to him by the parties when conducting his forensic evaluation, Dr. Paul Hymowitz PHD recommended that residential custody be granted to Mother, that decision making be shared, and that both parents have equal access to significant information regarding the children. Dr. Hymowitz initially deemed the move to Massachusetts to be “not feasible”. However, after being informed at trial of the dire financial circumstances Wife and the children find themselves in as a result of the foreclosure of their home, Dr. Hymowitz waivered on his opinion. He agreed that Husband's failure to pay the mortgage and other encumbrances was a destabilizing force in the children's lives. (Tr. 7/24/13 p. 231–232). Dr. Hymowitz failed to ask Husband if he continued to gamble, assuming that this was an activity Husband had engaged in the past. Dr. Hymowitz admitted that if Husband continues to gamble, it would be”worrisome” to him. (Tr. 2/24/13 pp. 237–238). When faced with the facts as they currently exist Dr. Hymowitz admitted that his opinion would likely change. (Tr. 2/24/13 p. 239). This Court finds that the forensic evaluator did not consider in sufficient depth the effect Husband's gambling and fiscal irresponsibility has had on the children.
Similarly, this Court finds that insufficient weight was given in the forensic report to the poor treatment of the Wife by Husband and the acts of domestic violence committed in the presence of the children. For example, Dr. Hymowitz dismissed, as not particularly significant, the incident in which Husband threw a laundry basket at Wife because, according to the evaluator, the basket was made of plastic. Regardless of what materials were used to construct the container, this event caused Wife and the children to remain huddled in fear near the front door for some 40 minutes until police responded. The forensic evaluator also apparently disregarded the history of Husband throwing other items at Wife including eyeglasses and food. The forensic evaluator was also seemingly unaware of the incidents were Husband shoved Wife in the presence of the children for not moving fast enough in Church, Husband's tendency to walk around the house naked, or Husband's past history of verbal and emotional abuse against Wife. In light of the above deficiencies, the forensic evaluators initial position was afforded little weight by this Court. See Matter of Pitt v. Reid, 111 AD3d 946 (2d Dept.2013). The Court notes that when faced with hypothetical questions on cross examination Dr. Hymowitz admitted that his initial opinion would likely change.
Custody
When determining custody cases the primary concern is the best interests of the child. See Matter of Islam v. Lee, 2014 N.Y. Slip Op 2045 (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 AD3d 458 (2nd 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 AD3d 966 (2d Dept.2009) ; see also, McGovern v. Lynch, 62 AD3d 712 (2d Dept.2009). 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 AD3d 621 (2d Dept.2009). While the child's preference is not determinative, it is important in a custody decision, especially when the children are of sufficient age to express their wishes. See Matter of Reven W. v. Jenny Virginia. D.,107 AD3d 445 (1st Dept.2013). The children's stated position is examined in camera, but also proffered by the attorney for the child. See Eschbach v. Eschbach, 56 N.Y.2d 167 (1982) ; see also, Catalan v. Catalan, 6 AD.3d 482 (2d Dept.2004).
While the parties have been following a schedule of split parenting time pendente lite, a final award of joint custody is not a viable option for these children because, as conceded by the parties, the relationship them is too volatile and acrimonious to support such an arrangement. See Bliss on behalf of Ach v. Ach, 56 N.Y.2d 995 (1982). Joint custody is inappropriate where the parties are antagonistic towards each other and have demonstrated an inability to cooperate on matters concerning the child. See Matter of Lawrence v. Davidson, 109 AD3d 826 (2d Dept.2013.). Accordingly, the Court is faced with the difficult determination of which parent would be the more suitable custodial resource for Olivia and Brian. In making this determination, the Court has considered whether each parent would foster the relationship between Olivia and Brian and the other parent. See Matter of Feliccia v. Spahn, 108 AD3d 702 (2d Dept.2013). The Court has also considered which parent is better equipped to provide for the child's educational, emotional and social development. See Matter of Ganzenmuller v. Rivera, 40 AD3d 756 (2d Dept.2007). Finally, the Court has considered the financial circumstances of the parties and considered who is in a better position to provide a stable home for the children. See Matter of Carl T. v. Yajaira A.C., 95 AD3d 640 (1st Dept.2012).
Wife is correct in asserting that her application to reside with the children in Massachusetts is not a matter of “relocation” and thus is not explicitly subject to the principles set forth in the case Tropea v. Tropea, 87 N.Y.2d 272 (1996). Wife's application to reside with the children in Massachusetts amounts to but one factor, although a significant one, in this Courts initial custody determination. See Matter of Santano v. Cezair, 106 AD3d 1097 (2d Dept.2013) ; see also, Matter of Saperston v. Holdaway, 93 AD3d 1271 (4th Dept.2012).
After considering the voluminous documentary evidence submitted at this trial, the testimony of the witnesses as observed by this Court, and after considering Dr. Hymowitz's opinion, and revised opinion on cross examination, the Court agrees with the attorney for the child that Plaintiff Wife presents as the parent better fit to be the sole custodial parent of Olivia and Brian and better able to provide a stable, nurturing, environment for these children long term. See Matter of Andrews v. Mouzon, 80 AD3d 761 (2d Dept.2011). In making this determination the Court has considered the following:
In this case, joint custody is not practicable given power imbalance and domestic violence between the parties. Husband alleges that Wife engaged in parental alienation when she sought assistance from the police and the Family Court and when she filed for Divorce. However, the very opposite was proven at trial. It was Husband's poor treatment of Wife in the presence of the children which served to undermine her parental authority. From equating Wife to a dim witted animal to throwing objects at her and encouraging the children to disrespect and ignore her in similar fashion, Husband has attempted to eliminate Wife as a parental figure in the eyes of these children. Over time this poor treatment would continue to diminish the view the children have of their mother. The Court finds that out of the two parents Husband would be less likely to foster the children's relationship with their Mother in the event that he was awarded custody. See Matter of Feliccia v. Spahn, 108 AD3d 702 (2d Dept.2013).
For example, during the many times the parties, the subject children, and Wife's sister drove to or from Massachusetts, Husband directed Wife to sit in the third row of the mini-van behind the children who were seated in the second row and behind Wife's sister who was directed to sit next to Husband in the front passenger seat. A second example is evidenced by the Perkin's incident wherein Wife attempted to settle her children, who were being rowdy, and Husband ridiculed her for not letting the children misbehave. This conduct, coupled with the many other degrading acts endured by Wife in the presence of the children, suggest to the children that their Mother has little authority or influence over them.
Moreover, Husband does not allege that Wife is an unfit Mother or that she has failed in any way to adequately care for the children. The only allegedly neglectful act committed by Wife was a one-time failure to apply a sufficient amount of sun block to Brian which caused him to get sun burn. This event was clearly not intentional and resulted in no injury to Brian.
Husband has also tried to suggest that Wife suffers from mental illness, namely depression which renders her the less fit parent for custodial purposes. Wife has admitted to suffering from mild depression at times but Husband failed to show that this sadness interfered in any way with her parenting. Rather, as credibly explained by Wife, her struggle at times with depression was the consequence of the stress caused by Husband's treatment of her during the marriage. In addition, Husband encouraged Wife to seek mental health treatment, only to later ridicule her for it. Moreover, Husband has admitted that he has also sought mental health treatment to deal with the stress of these proceedings and the breakup of the family. There is absolutely no evidence of mental illness on the part of Wife which would make her an unfit mother.
In addition to the poor treatment of Mother in front of the children, Husband has illustrated a profound lack of insight as to how to put the interests of his children ahead of his own. He has utterly failed to nurture his relationship with Olivia or to meet her reasonable needs. This Court is particularly troubled by the response Father has had to Olivia's refusal to have overnight visits with him. It appears that he has chosen to retaliate against this child for her decision much like the way he has retaliated against her mother for choosing to leave him. A few of examples of poor choices made by Husband when parenting these children, particularly Olivia, are set forth below:
Parenting Incidents
1. Olivia Camping
In 2006, when Olivia was three years old, Husband took her away with his friends and family members on an annual camping trip. Husband's adolescent nieces were also present. As a means of entertainment, the nieces coached then three year old Olivia to say “I can wipe my own bum” and to gesture to her buttocks area. With Husband's knowledge the nieces video-taped Olivia repeating this phrase. Husband's nieces later named the video “I Can Wipe My Own Ass” and posted it on YouTube where it remained for many months. When Wife found out, she was furious and demanded that this inappropriate video be taken down from the internet. Husband claims he “asked” his nieces to take down the video but they didn't listen to him. Ignored by his adolescent nieces, Husband took no further steps to remove these images of his young daughter, notwithstanding Wife's protests. (Tr. 3/17/14, pp. 45–54).
2. The Beach Incident
In July 2007, when Olivia was four years old and Brian was about two years old, Husband and Wife took the children to the beach for the first time. The children were happily playing at the shoreline with their beach toys when Husband decided they needed to learn how to swim. Wife asked Husband not to disturb them, as they were happy playing by the water's edge. She further explained that she was concerned because they were little and had not been in water much. (Tr. 10/17/13, p. 25). Husband, in defiance, angrily scooped up the children and took them into the ocean until he was up to his neck in water. The children were crying and calling for their mother. Wife responded by demanding that Husband bring the children to shore. Husband ordered her to leave him alone and threatened, “don't come any closer or I'll drown them.” (10/07/13, p. 26). Regardless of whether Husband had any actual intention of harming the children, this act was reckless and an inappropriate response to Wife's concerns.
3. Olivia's Communion
Olivia made her First Holy Communion on May 14, 2011. Olivia, then 7 years old, received an Easter basket from her Aunt Barbara W. who is Husband's sister. Inside the basket was a single pack of tissues. Ms. Barbara W. proceeded to tell Olivia she would need those tissues to “cry over” her mother. Bewildered and confused, Olivia asked her Aunt whether her mother was sick. (10/17/13, p. 126 Pl.Ex. 37 A, 37B). Husband claimed not to know anything about this incident. His testimony was not credible.
4. Olivia's Bed
In or around May of 2013, following an incident where Husband grabbed Olivia by the arm in a restaurant, Olivia decided she no longer wanted to have overnight visits with her Father. (Tr. 3/17/14, p. 55). Olivia's request resulted in an application by her attorney to suspend the overnight visits. By Order dated May 14, 2013, Olivia continued to visit with her father but was returned to her mother at 9:00 p.m. each evening. Brian continued to sleep over Husband's house. On the day of her dance recital, Olivia wanted to take a nap while in her father's care. Husband said she could not take a nap because she no longer had a bed at his house. He told her that since she did not want to sleep overnight at his house he rented her bed out. When she asked where the stuffed animals were that had been previously laid on her bed, Husband explained that since she didn't sleep over anymore she had no say as to what happened to her toys. When Wife told Husband how much this hurt Olivia, Husband was unmoved. Rather, he told Olivia that his birthday wish was that she sleep over his house again. Husband's statement that he rented out her bed and that she lost ownership of her toys is petty and shows very poor judgment. Moreover, the statement regarding Husband's birthday wish put undue pressure on Olivia at a time when she was increasingly uncomfortable visiting with him.
5. Urination Incident
In October of 2013, Olivia indicated that she needed to use the bathroom during Husband's parenting time. In response, Husband refused to allow Wife's sister (Ms. W.), to bring Olivia home to use the bathroom at the former marital home. Although Olivia's home was only a few blocks away, Husband refused to allow the child to leave because it was “his parenting time” and she was absolutely forbidden to go to her mother's home during “his time.” Instead, Husband started to look for a public bathroom. Unfortunately, Olivia could not wait and urinated on herself. When Olivia began crying Husband refused to allow Ms. W. to take her home so she could shower and put on clean clothes. As a result, Ms. W. had to take Olivia to a restroom at a car dealership, clean her up as best she could in a sink and wait for Mother to arrive with clean clothes. Ms. W. then took Olivia back into the car dealership restroom, removed her urine soaked clothes and cleaned her with a baby wipes brought by Mother. This so upset Olivia that she refused to get into the car with Husband at the end of this ordeal and instead attempted to run away into the nearby cemetery to get away from him. (Tr. 12/16/13, pp. 104, 116; 3/17/14, pp. 106–07). Aside from yelling at Olivia to get in the car, Husband did nothing to address the scene he had caused or to otherwise comfort Olivia.
6. Dad's House.
When Brian has overnight visits with Husband, he typically sleeps in the same bed as his father even though he has his own bed and his own room. When Wife spoke to Husband about this issue, Husband said he will “do what he wants with Brian while Brian is in his care.” (Tr. 10/17/13, p. 132). In addition, the children have reported that Husband exits the shower naked and walks into the living room to get dressed. Olivia and Brian are often present when this occurs and find it disturbing. When Husband walks around naked Olivia closes her eyes while Brian looks away. (Tr. 12/16/13, p. 128). When Olivia confided to her aunt that Husband was walking around naked Ms. Lori W. confronted him about it. Husband did not deny it, rather he said that it was “appropriate because it is a human body and the kids should get to know their body”. (Tr. 12/16/13, p. 128).
The above events, when viewed in their totality, make clear that an Order of Sole Custody to Father would not be in the children's best interest. To the contrary, Plaintiff Mother is the more fit parent for custodial purposes. She has consistently nurtured and parented these children in the face of poor treatment and obstacles posed by their father. She has always been the primary caretaker of the children and remained their primary caretaker throughout the course of this litigation. To the contrary, Defendant Father has only become involved in the actual daily care of the children since his retirement and increasingly since this divorce action has been commenced. Moreover, Mother has shown she is flexible and open to facilitating contact between the children and their father. Father, on the other hand, has been so inflexible with respect to “his time” that Olivia was made to urinate on herself because he would not allow her to go to “Mother's” home to use the toilet.
In addition to an Order of Sole Custody, it is this Court's opinion, after weighing all the relevant factors, that Wife should be permitted to reside in Massachusetts with the children. While the children's residence in Massachusetts will result in Father's seeing the children less during the week when school is in session, the move will benefit the children economically and emotionally. These benefits outweigh any inconvenience to Father. Wife's residence in Massachusetts will allow the children to move from a home constantly under the threat of eviction and pending foreclosure to a rent free home where they will enjoy the consistent financial and emotional support of Mother's family. The children do not claim to have the same strong bond with Father's family, many of whom do not live in the New York area. The children have also expressed their strong desire to reside in Massachusetts through their attorney who has consistently advocated for this position. See Ortiz v. Ortiz, 2014 N.Y. Slip Op 4202 (2d Dept 2014).
Perhaps most importantly, Husband's failure to comply with this Court's Orders requiring him to pay the mortgages associated with the children's shelter created the very situation that now compels Wife to seek residential stability elsewhere. At the same time as he allowed the children's home to fall into peril, his own living situation was stable because he continued to pay his sister $1,200 a month in rent, an amount that he claims his sister needed to pay her mortgage. (Tr. 2/27/14 p. 25). In addition, this Court credits that testimony of multiple witnesses that the parties always planned on moving to Massachusetts after Husband's retirement and it was not until this divorce was filed that Husband changed his position. Courts have consistently held that economic necessity presents a particularly persuasive ground for permitting a proposed move, particularly where, as here, the Court is making an initial custody determination. See Tropea v. Tropea, 87 N.Y.2d 727 (1996) ; See also, Matter of Kevin Mck. V. Elizabeth A.E., 111 AD3d 124 (1st Dept.2013).
For the reasons set forth above, and after considering the totality of the circumstances, and the position of the subject children as proffered by their attorney, the Court finds that it is in the best interests of the children for an Order of Sole Legal and Physical Custody to be awarded to Plaintiff Mother. See Matter of Nunn v. Bagley, 63 AD3d 1068 (2d Dept.2009). In making this determination the Court has considered the parental guidance provided by each parent, each parent's ability to provide for the children's emotional well being, each parent's ability to provide financial stability, the relative fitness of each parent, and the effect that an award of custody would have on the relationship with the non custodial parent. See Miller v. Pipia, 297 A.D.2d 362 (2d Dept.2002). After balancing all of these factors, it is the Court's opinion that Plaintiff Mother is the better custodial parent for the subject children. The Court notes that this ruling is contrary to the initial recommendation of the Forensic Evaluator, however, when faced with the parties' current situation, Dr. Hymowitz indicated that he would likely change his opinion. In that regard the Court finds that Dr. Hymowitz's initial recommendation was based upon insufficient facts and therefore, not entitled to much weight. See Bruno v. Bruno, 47 AD3d 606 (2d Dept.2008). Dr. Hymowitz acknowledged that a year had elapsed since he issued his report and the date of his trial testimony.
Wife is hereby directed to confer with Husband on all issues relating to education, religion and medical matters. Wife shall, however, have final decision making authority with respect to these and all other major issues. Each party shall retain authority to make day to day decisions while they are with the children. Both parents shall have free access to Olivia and Brian's medical and educational records. Each parent shall be responsible for securing said information. Both parties shall be entitled to attend all school, extracurricular and significant events in their children's lives at their own expense.
In addition to an award of Sole Custody, it is further Ordered, that Wife and the children are hereby permitted to reside in Massachusetts. See Matter of Pietrafesa v. Pietrafesa, 018 AD3d 557 (2d Dept.2013), See also, Matter of Lynch v. Gillogly, 82 AD3d 1529 (3rd Dept.2011). Wife has proven by a fair preponderance of the evidence that her desire to reside in Massachusetts is motivated by a desire to separate herself from the poor treatment and acts of domestic violence committed by Husband, many of which occurred in front of the children. See Matter of Clarke v. Boertlein, 82 AD3d 976 (2d Dept.2011) ; see also, Matter of Eddingon v. McCabe, 98 AD3d 613 (2d Dept.2012). In addition, Wife has established that there is an economically necessity for her to reside closer to her extended family who are willing to provide financial and emotional support to her and the children, and to secure affordable and stable housing. See Tracy A.G. v. Undine J., 105 AD3d 1046 (2d Dept.2013) ; See also, Matter of Harrsch v.. Jesser, 74 AD3d 811 (2d Dept.2010). This is in sharp contrast to the pending and destabilizing foreclosure of their current home caused by Husband.
In addition to Wife's desire to escape domestic violence and the establishment of economic necessity, Wife established at trial that the lives of the children will be enhanced emotionally and educationally by this move. See Shaw v. Miller, 91 AD3d 879 (2d Dept.2012) ; See also, Matter of Hall v. Hall, 2014 N.Y. Slip Op 4487 (2d Dept.2014). Wife credibly testified that Sturbridge is a historic town with cultural programs and activities for children. (Tr. 10/17/13 p. 92). Wife further credibly testified that she did considerable research regarding the school system in Sturbridge (Tr. 10/25/13 pp. 123) and that they have speech and occupational therapy programs for her son. (Tr. 11/15/13 p. 18). Ms. Lori W. shared Wife's opinions regarding the school system in Sturbridge. (Tr. 11/18/13, pp. 52–58).
Moreover, while Mother's move to Massachusetts will impact Father's ability to spend time with the children during the week while school is in session, this will be mitigated by the increased weekend, summer and school recess vacation schedule set forth below. This schedule, which provides for substantial time with Husband, will allow for the continuation of a meaningful relationship with the children. In addition to physical visitation, Husband shall be entitled to liberal telephone, electronic and Skype contact as often as he likes with the children. Given Husband's concern that some of his visitation time would be taken up by travel, the following schedule provides for extended visits during school recesses and summer. See Shaw v. Miller, 91 AD3d 879 (2d Dept.2012). The schedule also requires Mother to transport the children half way to Father on Fridays and pick them up at the same location on Sunday nights. Finally, it also compels Mother to do all the round trip driving during holiday and extended vacation weeks. Father's parenting plan has been carefully crafted in such a way as to preserve a meaningful relationship between Father and children. See Mathie v. Mathie, 65 AD3d 527 (2d Dept.2009) ; See also, Smith v. Bonvicino, 50 AD3d 806 (2d Dept 2008)
In accordance with the terms of this Decision, Wife may immediately enroll both children in school in Sturbridge Massachusetts. Wife shall vacate the marital home with the children on or before July 31, 2014. Wife may take all of her personal belongings and the personal belongings of the children, including their toys and clothes with them when they move. Wife is to inform Husband within 7 days of her arrival in Massachusetts of her address and any relevant phone numbers to the children's home, their school, medical providers etc to the extent that they are immediately known to her. Wife shall have an ongoing duty to inform Husband of all relevant phone numbers as they become available.
Parenting Time
While Wife is granted an Order of sole legal custody with final decision making, this does not end the analysis. This Court finds that a liberal parenting plan which preserves the opportunity for a meaningful relationship with Husband and the children is in the children's best interests. Matter of Hall v. Hall, 2014 N.Y. Slip Op 4487 (2d Dept.2014).
With these principles in mind, Defendant Father is hereby awarded overnight visitation with the subject children on the first, second and fourth weekend of each month. In the event that there is a fifth weekend in a month, it shall be parenting time with Father. Each period of weekend visitation shall commence on Friday night at 6:30 p.m. with pick up by Father at the parties' established half way point, “Main Hins Chinese Restaurant” which is located at 7365 Main Street, Stratford, Connecticut. Both parties have testified that they frequently used this restaurant as a half way point between Wife's parent's home in Massachusetts and the marital home in Staten Island. Mother shall be responsible for the transport of the children to the restaurant. Husband's weekend visitation shall cease with drop off at 6:00 p.m. at the restaurant.The parties may maintain communication by cell phone about their whereabouts during the transportation of the children.
Father's first weekend of overnight visitation with the children shall commence on Friday August 1st 2014. As Olivia has not had overnight visitation with Husband since this Court's Order dated May 14, 2013, and to facilitate a smooth transition from day visits to overnight visits, this first visit shall take place in or within 25 miles of Sturbridge, Massachusetts. The visitation shall be held at a hotel of Father's choosing, or any other location agreed upon by the parties. In making this determination, the Court has considered the in camera examination. In addition to the weekend parenting time detailed above Husband shall have the right, upon 48 hours notice to Wife, to a weekday dinner visit which shall occur in Massachusetts between the hours of 5p.m. and 9 p.m. should Husband choose to avail himself of this visit.
1. Holidays and Vacation Schedule
Wife credibly testified at trial that if allowed to reside in Massachusetts she would transport the children to and from visitation. (Tr. 10/25/13, p. 132). Although the transportation of the children for weekend visitation shall be shared by the parties as detailed above, Mother shall be solely responsible for the round trip drop off and pick up of the children from Father's residence curbside for all holiday and vacation visitation. In the event that Mother cannot transport the children for holiday or vacation visitation she may designate a friend or relative to transport the children to and from visitation with Father.
2. Holidays
Mother's Day weekend shall always be with Mother and Father's Day weekend shall always be with Father. The following holidays shall be alternated:
Children's Birthday: even years: Motherodd years: Father
Halloween: even years: Fatherodd years: Mother
Thanksgiving: even years: Motherodd years: Father
On Father's years, Thanksgiving shall begin on the day before Thanksgiving with drop off by Mother at 6 p.m. and end on the day after Thanksgiving with pick up by Mother at 5 p.m.
Christmas even years: Fatherodd years: Mother
On Father's years Christmas shall begin on December 23rd with drop off by Mother at 6 p.m. and end on December 26th at 3 p.m. with pick up by Mother.
New Years even years: Motherodd years: Father
On Father's years New Years shall begin at 6 p.m. with drop off by Mother on December 30th and end on January 2nd at 3 p.m with pick up by Mother.
Easter even years: Fatherodd years: Mother
On Father's years Easter shall begin on Good Friday at 6 p.m. with drop off by Mother and end on Easter Sunday at 5 p.m. with pick up by Mother.
The following holidays when the children have off from school shall be with Father: Martin Luther King Day, President's Day, Memorial Day, the Fourth of July, Labor Day, Columbus Day and Veteran's Day. If these holidays fall on a Monday Mother shall drop the children off at Father's residence the day before at 3 p.m. In the event that these holidays fall on a day other than Monday, Mother shall drop off the children the night before at 9 p.m. and pick the children up the day of the holiday at 5 p.m.
Holiday visitation afforded to Father herein that falls on a school day such as Halloween or the children's birthdays shall be pick up by Father at the children's school in Massachusetts commencing at school dismissal and ending at 8:30 p.m. with drop off by Father curbside at Mother's residence.
3. Vacation and School Recess Time
February Recess: Each year Father shall have uninterrupted visitation with the subject children during February Recess commencing with drop off by Mother at Father's residence at 9 p.m. the day before the recess begins and ending with pick up by Mother at Father's residence on the last day of recess at 5 p.m.
Winter Break: In years that Father has the Christmas holiday, he shall be entitled to have parenting time with the children commencing 9 p.m. with drop off by Mother at Father's residence on the last day of school before the break begins and ending on December 26th at 3 p.m. with pick up by Mother at Father's residence.
In years that Mother has the Christmas holiday, she shall drop the children off to Father on December 26th at 3 p.m. and he shall have the remainder of Winter Break ending on January 2nd at 3 p.m. with pickup by Mother at Father's residence.
Spring Break: Each year Father shall have uninterrupted visitation with the subject children during Spring Break commencing with drop off by Mother at Father's residence at 9 p.m. the day before Spring Break begins and ending on the last day of Spring Break at 5 p.m. with pick up by Mother at Father's residence.
If the Easter holiday falls during Spring Break, Easter visitation shall supersede Spring Break visitation.
Summer Vacation: The vacation visitation schedule herein shall commence in June of 2015. Father's visitation for the month of August 2014 shall follow the parties regular weekend visitation schedule. Father shall be afforded extended Summer Vacation with the subject children as follows:
In the month of June, Father shall have visitation with the subject children commencing on the last day of school with drop off by Mother at Father's residence at 9 p.m. and ending on June 25th with pickup by Mother at Father's residence at 5 p.m.
In the month of July, Father shall have visitation with the subject children commencing July 1st at 3 p.m. with drop off by Mother at Father's residence and ending on July 15th at 5 p.m. with pick up by Mother at Father's residence. Mother shall have visitation commencing with pick up by Mother from Father's residence on July 15th at 5 p.m. and ending on July 25th with drop off by Mother at Father's residence at 3 p.m. Father shall have visitation from July 25th at 3 p.m. to July 31st at 5 p.m. with pick up by Mother.
In the month of August, Father shall have visitation with the subject children commencing with drop off by Mother on August 1st at 3 p.m. and ending with pick up by Mother on August 15th at 5 p.m. Mother shall have visitation commencing with pick up by Mother from Father's residence on August 15th at 5 p.m. and ending with drop off on August 25th with drop off at Father's residence at 3 p.m. Father shall have visitation from August 25th at 3 p.m. to August 31st at 5 p.m. with pick up by Mother.
Equitable Distribution.
The Domestic Relations Law recognizes that a marriage relationship is an economic partnership. As such, during the course of a marriage, spouses share in both its profits and losses. When the 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 NY3d 158 (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 AD3d 1449 (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 NY3d 415 (2009). Equitable distribution does not necessarily indicate equal distribution. See Henery v. Henery, 105 AD3d 903 (2d Dept.2013).
1. Marital Home
As per his application, Husband is hereby granted full title and interest in the marital home. Husband is hereby deemed solely responsible for any debts owed in relation to the multiple encumbrances and mortgages associated with the home as it was his failure to comply with this Court's Order that caused the accumulation of debt and the pending foreclosure action. See Ropiecki v. Ropiecki, 94 AD3d 734 (2d Dept.2012). In addition, Husband is in the superior financial position to pay down these debts that he created. See Wexler v. Wexler, 34 AD3d 458 (2d Dept.2006). In order to limit the likelihood of further confrontation between these parties, Husband shall be permitted to keep all the furniture in the home. Wife may take all of her personal belongings and the children's personal belongings. Husband shall prepare a Quit Claim Deed transferring the marital home into his name only. All fees associated with the Quit Claim Deed shall be borne by Husband. Wife is hereby directed to sign all paperwork associated with the deed transfer.
2 Wasteful Dissipation of Marital Assets
In this Court's Pendente Lite Order dated November 23, 2011, Husband was Ordered to continue paying the mortgage, and the payments associated with two home equity loans in the monthly amount of $2,644.83. It is undisputed that Husband has failed to comply with this aspect of the Pendente Lite Order resulting in the home being foreclosed upon by Summons and Complaint dated January 23, 2014. Wife argues that Husband's failure to pay the mortgage amounts to the wasteful dissipation of the equity in the Marital Home and now seeks an increased portion of Husband's retirement benefits, or a distributive award, to compensate her for the amounts lost.
By Order dated May 26, 2011, Richmond County Appraisers were Ordered to appraise the value of the Martial Home. While an appraisal report was prepared it was never entered into evidence at trial. However, Wife credibly testified that the house was appraised at $370,000, an amount not contested by Husband at trial. (Tr. 9/19/13 p. 35). While the house may have a market value of approximately $370,000, the evidence at trial indicates that the parties jointly encumbered the home with a Mortgage and two home equity lines of credit in the approximate amount of $337,788. (See Plaintiff's Exs. 13, 4, 3, 1). In January of 2012, Wife filed for bankruptcy and in her sworn Petition Wife alleged that the combined encumbrance debt had increased to $367,226. (See Plaintiff's Ex. 26). The parties do not dispute that there is currently no equity remaining in the marital home which is the subject of a pending foreclosure proceeding.
However, if Husband had complied with the Pendente Lite Order of this Court, which Ordered him to pay $2,645 a month towards the encumbrances, that sum would have decreased the debt rather than allowing it to increase. Husband admits that he has not made a single monthly payment in the thirty one months since the issuance of that Order. (Tr. 3/11/14 pp. 45–46). Husband's failure to pay down the debt, as Ordered by this Court, amounts to the waste of a marital asset in the approximate amount of $81,990 (31 months x $2,645). See Maggiore v. Maggiore, 91 AD3d 1096 (3rd Dept.2012) ; Noble v. Noble, 78 AD3d 1386 (3rd Dept.2010). Wife is hereby awarded a distributive award in the amount of $40,995 representing one half of the sum of payments Husband was Ordered to make towards the encumbrances associated with the marital home. See Ferdinando v. Ferdinando, 236 A.D.2d 585 (2d Dept.1997). This distributive award shall be paid by Husband, directly to Wife within 90 days of the date of this decision.
3. Husband's Business Interests
By Stipulation and Order dated October 10, 2013, Husband agreed to pay Wife $15,000 in full satisfaction of any claim of equitable distribution related to Marsala's Pizzeria located in Bonito, Florida, BL & OM & The Gypsy (the “plow business”) and the Florida townhouse located in Fort Meyers, Florida. This $15,000 is to be paid from Husband's share of the marital portion of his 457 Deferred Compensation Account as set forth more fully in that Order (Jud. Notice No. 4). In addition to this distribution from Husband's share of the 457 Account the Stipulation determines Wife's equitable share for a total award to Plaintiff of $32,756.25 which shall be satisfied by preparation of an appropriate Domestic Relations Order.
4. Husband's Pension
Husband's pension with the New York City Fire Department was the subject of an appraisal by Lexington Pension Consultants. The resulting valuation report was admitted into evidence as Plaintiff's No. 53. According to that report, the value of the portion of Husband's pension that was accrued during the marriage is $508,332 (all amounts rounded to the nearest dollar). The accrued annual value of the marital portion is $28,658 and the accrued monthly portion is $2,388. Husband's pension is currently in pay status at the rate of $62,795 per year (gross) or $5,233 per month (gross). It is this Court's determination that Wife is entitled to an award consisting of 50% of the Majauskas share of Husband's pension. Based on the application of the Majauskas formula and rounding to the nearest dollar, Wife is entitled to $1,194, per month from Husband's monthly pension. As Husband's service pension has not been finalized, and his application for a disability pension is still pending, Husband is hereby Ordered to designate Wife as the post retirement death beneficiary of his FDNY benefits so that in the event that he predeceases Wife she will continue to receive her equitable share of the pension as survivor benefits. See Kazel v. Kazel, 3 NY3d 331 (2004) ; see also, See Hughes v. Hughes, 79 AD3d 473 (1st Dept.2010).
Within 60 days of the date of this decision, Wife shall prepare a Domestic Relations Order (DRO) to be signed by the Court, on notice to Husband, in accordance with this decision to be signed by the Court. See Phillips v. Haralick, 70 AD3d 663 (2d Dept.2010). Wife may utilize the services of a pension consultant and any cost associated therewith shall be borne by Wife. See Auriemmo v. Auriemmo, 87 AD3d 1090 (2d Dept.2011). Until such time as Wife receives her first payment under the DRO, Husband is hereby Ordered to pay an adjusted temporary maintenance award of $1,194 a month. (see maintenance below).
5. Husband's Retirement Benefits
In addition to his FDNY Pension, Husband has various other retirement benefits from his employment with the Fire Department which were valued by Lexington Pension Consultants. The marital portion of Husband's retirement benefits are as follows: A 457 Deferred Compensation Account with a marital portion of $35,513; a 401(k) Deferred Compensation Account with a marital portion of $37,241; and a Special 401(k) rollover with a marital portion of $34,018.
Wife is entitled to her equitable share of Husband's retirement benefits. See Majauskas v. Majauskas, 61 N.Y.2d 481 (1984) ; See also, McGrath v. McGrath, 261 A.D.2d 369 (2d Dept.1999). Accordingly, Wife is hereby awarded a 50% share of the marital portion of each of these benefits in the following amounts: 401(k) Deferred Compensation Account in the amount of $18,621; and Special 401(k) rollover in the amount of $17,009. Husband's 457 Deferred Compensation account has already been distributed by So Ordered Stipulation dated October 10, 2013.
In addition to the retirement benefits listed above, during his active employment with the Fire Department Husband maintained an account with the Compensation Accrual Fund (CAF). At the date of marriage the balance of this account was $4,947. As this amount existed before the date of marriage it is Husband's separate property. On March 21, 2011 Husband rolled his full account balance into a JP Morgan Traditional IRA. At the time of transfer the balance was $20,172. Wife seeks her equitable share of Husband's IRA. The marital portion of Husband's Traditional IRA is $15,225 ($20,172–$4,947). Wife is hereby awarded 50% of the marital portion which equates to $7,613.
Finally, if Husband's application for a disability pension is denied, he will be entitled to a yearly Variable Supplement Fund (VSF) check in the amount of $12,000. If Husband's pending disability pension application is granted neither party shall be entitled to VSF benefits. The martial portion of the anticipated VSF fund is approximately $117,320. In the event that Husband's disability pension is denied Wife is hereby awarded a 50% equitable share of the marital portion of this benefit, to be distributed by DRO to be prepared by Wife, at Wife's expense.
Within 60 days of the date of this decision, Wife shall prepare a Domestic Relations Order (DRO) to be signed by the Court, on notice to Husband, distributing Husband's retirement benefits in accordance with this decision. All payments authorized by this DRO shall be made in a lump sum unless Wife elects to have the funds “rolled over” into equivalent IRA's. See J.K.C. v. T.W.C., 966 N.Y.S.2d 812 (Sup.Ct. Monroe Cty.2013). Wife may utilize the services of a pension consultant and any cost associated therewith shall be borne by Wife.
6. Other Assets
As indicated above Husband shall be entitled to keep the furniture located in the marital home. Husband shall be entitled to keep the marital 2003 Ford Windstar. Each party shall be solely responsible for any debt currently in their own name, however all debts associated with the marital home are attributed to Husband as detailed herein. Each party shall retain their separate bank accounts and investment accounts.
Maintenance
Wife's Summons with Notice and Verified Complaint seek an award of maintenance. However, Wife's summation only requests maintenance as an alternative request for relief in the event the Court determines that Husband wastefully dissipated marital assets and decides not to award a distributive award. In addition, Wife's Statement of Proposed Disposition only requests that the temporary maintenance award in the amount of $1,792.45 continue until such time as Wife starts receiving her equitable share of Husband's pension. At trial Wife did not testify as to a need for maintenance or request a specific amount or duration.
Husband's pension with the Fire Department of the City of New York is in pay status. Wife seeks her equitable share of this pension as a marital asset. When a pension is in pay status “care must be taken to avoid double counting of the interdependent issues of distribution of a pension and maintenance” See Bellizzi v. Bellizzi, 107 AD3d 1361 (3rd Dept.2013). Once “a court coverts a specific stream of income into an asset, that income may no longer be calculated into the maintenance formula and payout”. Haspel v. Haspel, 78 AD3d 887 (2d Dept.2010) ; See also Rubin v. Rubin, 63 AD3d 549 (1st Dept.2009) ; Grunfeld v. Grunfeld, 94 N.Y.2d 696 (2000). As Wife requests that Husband's pension be treated as an asset, and since she has not requested a specific amount of maintenance for a specific period of time, there shall be no award of maintenance. See Messemer v. Messemer, 272 A.D.2d 672 (3rd Dept.2000) ; See also Tolosky v. Tolosky, 304 A.D.2d 876 (3rd Dept.2003). Under the circumstances, awarding a percentage of the pay status pension as equitable distribution, rather than a maintenance award, more accurately reflects the value to Wife of Husband's pension. See Bellizzi, Supra.
Wife's application to continue the temporary maintenance payments until such time as a DRO can be prepared and implemented is hereby granted, in part. Husband is hereby Ordered to pay the sum of $1,194 directly to Wife on the fifteenth of each month until Wife receives her first pension payment. Husband's first payment of $1,194 shall be due on August 15, 2014.
Child Support.
In Wife's Summons with Notice, filed on April 27, 2011 she makes an application for child support for the subject children. During the pendency of this action, Husband has been paying $350 a month in temporary child support under this Court's Order dated November 23, 2011. There are two children of the marriage Olivia R. (age 10) and Brian R. (age 8), both of whom Wife has been awarded custody herein.
The Child Support Standards Act (CSSA) presumptively results in the correct amount of child support to be awarded to the custodial parent. Applying the statutory percentage of 25% to the combined parental income will provide the appropriate level of support to meet the basic needs of the subject children.
When determining child support under the guidelines the Court is directed to utilize 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 AD3d 822 (2d Dept.2012). However, there is authority to use more recent income information where available. See Eberhart–Davis v. Davis, 71 AD3d 1487 (4th Dept.2010). The most recent tax return provided by Husband is a proposed 2011 tax return which indicates a gross income of $182,966. Husband's 2012 and 2013 tax returns, if filed, have not been provided to the Court. However, it is undisputed that Husband is currently retired from the New York City Fire Department and his pension in is pay status. Annexed to his Updated Statement of Net Worth Husband has provided documentation which indicates that he currently earns $62,796 a year in gross income. This amount is paid to Husband in monthly payments of $5,233 gross. Wife does not dispute that this is Husband's current income. If Husband filed taxes in 2012 or 2013 he “should have” reported this amount as income. See Heiny v. Heiny, 74 AD3d 1284 (2d Dept.2010).
When determining child support the Court must deduct payments of Social Security, Medicare and New York City taxes, however Husband credibility testified that he only pays Federal income tax out of his pension. Accordingly there are no allowable statutory deductions from his income. While Wife's receipt of a portion of Husband's monthly pension payment precludes an award of Maintenance, the theory of “double counting” does not apply to the strict statutory formula used for determining child support under the guidelines. See Holterman v. Holtermn, 3 N.Y3d 1 (2004). Accordingly, the full amount of Husband's income shall be utilized for purposes of determining child support.
Annexed to Wife's Updated Statement of Net Worth is a W2 which indicates that she grossed $8,608 in 2012. Wife has provided evidence that she has filed for an extension for her 2012 taxes. While Wife has provided pay stubs up until August of 2013 which seem to indicate that she will earn slightly less than she did in 2012 the Court will use her 2012 income as a reflection of her current income earning capacity. See DiFiore v. DiFiore, 87 AD3d 971 (2d Dept.2011). While it is appropriate to deduct the amount that will be paid to Wife out of Husband's pension for purposes of calculating child support, this prospective income shall not be included when calculating her income for purposes of child support. See Shapiro v. Shapiro, 35 AD3d 585 (2d Dept.2006). From the sum of $8,608 the Court must deduct the following statutory deductions, Social Security in the amount of $362, Medicare in the amount of $125 and local tax in the amount of $89 for an adjusted gross income of $8,032.
The combined parental income for purposes of calculating child support is $70,828. Applying the statutory percentage of twenty five percent (25%) to the combined parental income results in a combined child support obligation of $17,707. Husband's pro rata share of the $14,125 guidelines child support obligation is 89% which equates to $15,759 a year or $1,313 a month.For the reasons set forth above Husband is hereby Ordered to pay child support in the amount of $1,313 a month. This payment shall be made directly to Wife on the 15th of every month starting August 15, 2014.
1. Retroactivity
The award of child support Ordered herein shall be retroactive to Wife's Summons with Notice which was filed on April 27, 2011. Husband shall be entitled to a credit for the amounts he paid under the temporary support Orders of this Court. Husband credibly testified that he has paid the Ordered child support and Wife does not contest Husband's claim. The Court thereby credits Husband's testimony that he has made all required child support payments under the temporary Orders of this Court.
On May 26, 2011 this Court issued a Temporary Order of Protection on Wife's behalf. This Order contained a provision for temporary child support in the amount of $300 a week. On September 16, 2011 Husband entered into a Consent Order wherein he agreed to continue paying the sum of $300 a week in child support to Wife. This Order remained in effect until the Court issued the Pendente Lite Order on November 23, 2011 which modified the child support award to $350 a month. Crediting Husband for all payments under the above Orders Husband is entitled to a credit of $7,800 for payments made prior to November 23, 2011 (26 months x $300 ) and $10,850 for payments after November 23, 2011 (31 months x $350 ). The retroactive award of child support under the amount awarded herein is $49,894 (38 months x $1,313 ). Husband is entitled to a credit of $18,650 for amounts paid. Accordingly, Husband owes $31,244 in child support arrears. This amount shall be paid in monthly installments of $500 to be paid in addition to Husband's child support obligation each month. In the event that Husband wishes to pay off the balance in a lump sum payment he may do so at any time.
2. Children as Tax Dependents
Wife argues in her Written Summation that Husband would achieve no tax benefit from being able to claim the children as his pension is New York State and City tax free. However, in her Statement of Proposed Disposition Wife requests that she be granted the ability to claim Olivia as a dependent and that Husband be entitled to claim Brian as a dependent. Husband takes no position on the issue of tax consequences. While Wife is correct that Husband's pension is State and City tax free, Husband does pay Federal Income Tax on his pension. Accordingly, the parties shall split the two children for purposes of who may claim them as dependents. As suggested by Wife, she shall be entitled to claim Olivia as a dependent and Husband shall be entitled to claim Brian. See Skladanek v. Skladanek, 60 AD3d 1035 (2d Dept.2009). However, Husband may only claim Brian in the event that his child support payments are made on a consistent and timely basis.
3. Subsequent Modification
Wife argues that Husbands retirement income is uncertain as his service pension has not yet been finalized and moreover that he has a pending application for a disability pension. Husband agrees that he anticipates earning a higher monthly income in the future. Accordingly, Husband is hereby ordered to keep Wife apprised of the status of his pension status. To effectuate this obligation Husband is hereby Ordered to copy Wife on all correspondence he sends related to his pension, and provide copies of any correspondence received relating to his pension. Husband is also Ordered to provide Wife with copies of his quarterly pension statements to ensure that Wife is notified of any change in status.
Husband's receipt of disability benefits or any increase in his income by 15% or more shall constitute an automatic “substantial change in circumstances” entitling Wife to move to modify Husband's child support obligation in any court of competent jurisdiction.
4. Additional Child Support Expenses
Wife requests that Husband be Ordered to provide his pro-rata share of all additional child care expenses in the form of unreimbursed medical, childcare, and educational expenses incurred by the subject children. Husband is silent on the issue. Accordingly, Wife's application is granted. It is hereby Ordered that the parties shall split all unreimbursed medical, childcare and educational expenses pro rata. See Cassano v. Cassano, 85 N.Y.2d 649 (1995) ; See also, Leuker v. Leuker, 72 AD3d 655 (2d Dept.2010). Husband's pro rata share shall be 89% and Wife's pro rata share shall be 11%. See Harris v. Harris, 97 AD3d 534 (2d Dept.2012).
Husband is hereby directed to maintain the children's health insurance until each child reaches the age of 21. See Mejia v. Mejia, 106 AD3d 786 (2d Dept.2013). Wife's application that Husband pay for her health insurance through COBRA until she can obtain health insurance of her own is hereby denied. See DRL § 255 ; See also, Alleva v. Alleva, 112 AD3d 567 (2d Dept.2013). However, Husband is hereby directed to maintain Wife's health insurance until the signing of the Judgment of Divorce.
Wife's application that Husband secure his child support obligation through a life insurance policy is hereby granted. See DRL § 236(B)(8)(a) ; See also Hainsworth v. Hainsworth, 987 N.Y.S.2d 215 (2d Dept.2014). Accordingly, Husband is hereby Ordered to maintain a life insurance policy in the amount of at least $150,000 and name both children as beneficiaries. This policy may have a term that ends upon the cessation of child support payments if Husband so chooses.
Counsel Fees
Wife seeks an award of counsel fees incurred in relation to this long and bitterly contested matrimonial action. Wife's attorney sets forth that to date she has been paid the sum of $11,400 which was paid by Wife's Father. Wife seeks payment of fees currently due and owing in the amount of $99,140. In support of her application Wife's Attorney has submitted detailed billing records which substantiate this amount. Husband opposes Wife's application and states that each party should be responsible for their own counsel fees. Husband further argues that if anyone delayed the proceedings, it was his Wife.
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 AD3d 605 (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 AD3d 704 (2d dept.2009) ; See also, Silverman v. Silverman, 304 A.D.2d 41 (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 AD3d 832 (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 (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, 2013 N.Y. Slip Op 8071 (2d Dept.2013).
The relative financial circumstances of the parties has been well established through the credible testimony and documentary evidence offered at trial by both parties. Wife, a part time employee at Walgreens, earns approximately $8,608 a year in taxable income. Husband, in contrast, currently earns $62,796 in pension income, which income is only subject to Federal Income Tax. While this comparison alone establishes the financial disparity between the parties, the difference is more apparent when assets are considered. Wife's assets are limited to her equitable share of the marital portion of Husband's retirement benefits as set forth herein. Husband, in comparison, has considerable assets in the form of retirement benefits which were accrued prior to the marriage together which his share of the marital portion. Husband's pension alone has been valued at $1,237,619. In addition to his pension Husband has a Compensation Accrual Fund, a 457 Deferred Compensation Plan, a 401(k) Deferred Compensation Plan, and potentially a Variable Supplement Fund in the event that his disability retirement application is denied. 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 AD3d 348 (1st Dept.2008) ; See also, Sterling v. Sterling, 303 A.D.2d 290 (1st Dept.2003).
Wife's attorney asserts that since the commencement of this action she has been paid a total sum of $11,400 which was provided by Wife's Father. Husband, while currently Pro Se, has had the benefit of two attorneys during the course of this action. Husband was first represented by the Law Offices of Soren and Soren, who were paid at least $15,323 in counsel fees although the fees were later discharged by Husband in his second bankruptcy. On June 3, 2013 Husband hired his second attorney, Michael Heitmann Esq. who represented him for a total of five months before Husband relieved him as counsel on consent choosing to proceed Pro Se. Husband credibly testified at trial that for his services Mr. Heitmann was paid the sum of approximately $45,000 from money which was provided by Husband's Mother.
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 this Court's Order regarding the payment of the mortgage resulted in both the wasteful dissipation of an asset and necessitated the filing of at least one motion for enforcement.After consideration of the totality of the circumstances with significant weight being afforded to the disparity of income between the parties, it is hereby Ordered that Husband shall pay the sum of $99,140 representing counsel fees payable directly to Wife's Counsel. See Estis v. Estis, 309 A.D.2d 829 (2d Dept.2002) ; See also, Schek v. Schek, 49 AD3d 625 (2d Dept.2008). In making this determination the Court notes that Husband has considerable assets from which he can pay counsel fees, as compared to Wife's limited assets. See Carr v. Carr, 309 A.D.2d 1001 (3rd Dept.2003). This award of counsel fees is to be paid directly to Wife's counsel in a lump sum payable within 120 days of the signing of the Judgment of Divorce.
Reallocation of Expert and Legal Fees
Husband requests a reallocation of the legal fees associated with the Attorney for the Subject Children, the fees related to the Court appointed Forensic Evaluator Dr. Hymowitz, and the fees associated with the appraisal of the marital home. By Order dated May 26, 2011 Ms. Rosanne Scotto DiRinaldi was appointed to represent the subject children with a retainer of $5,000 and an hourly rate of $250 an hour. The fees associated with Ms. DiRinaldi's representation were attributed 100% to Husband, subject to reallocation. On September 16, 2014, in light of the financial burdens already placed on Husband by this litigation, the Court Ordered Dr. Paul Hymowitz to conduct a forensic evaluation and further Ordered that Dr. Hymowitz would be paid pursuant to Judiciary Law section 35.
After a consideration of the financial situation of both parties, and the circumstances set forth above in this bitterly contested matrimonial action which necessitated the appointment of both an Attorney for the Children and the Forensic Evaluator, Husband's application for a reallocation of the expert fees, attorney fees and appraisal fees is hereby denied.
Motions Referred to Trial
During the course of these proceedings two motions were referred to the Trial Court. Motion Sequence No. 003, filed by Plaintiff Wife requests enforcement of the Pendente Lite Order and counsel fees. Motion Sequence No. 005, filed by the Attorney for the Children seeks the interim suspension of overnight visits with Defendant Husband. To the extent that Wife's application has not been addressed by this decision it is hereby denied. The Attorney for the Subject Children's application to suspend overnight visitation was resolved by this Court's Order dated May 14, 2013.
Conclusion
For the detailed reasons set forth above, Wife is hereby granted a Final Order of Sole Custody of Olivia R. and Brian R.. It is further Ordered that Wife may reside with the children in Sturbridge, Massachusetts. Husband is granted the extensive parenting time set forth herein.
For the reasons set forth above a Divorce is hereby granted, on consent, to Plaintiff Wife on the grounds that the marriage has broken down irretrievably for a period of six months. See DRL § 170(7). As to ancillary relief: Wife is hereby awarded child support in the amount of $1,313 a month. Child Support arrears are calculated at $31,244. Husband is Ordered to pay an additional $500 a month towards arrears. The Equitable Distribution of marital assets shall be effectuated as detailed herein. Wife is hereby directed to serve and file Domestic Relations Orders in accordance with this decision within 60 days from the date of this decision. Wife's application for a final award of counsel fees is granted in the amount of $99,140 payable to Wife's attorney within 120 days of the signing of the Judgment of Divorce. Husband is hereby directed to pay temporary maintenance in the amount of $1,194 until such time as Wife receives her first pension distribution.
All requests for relief raised at trial, or by motion referred to trial, not explicitly addressed herein are hereby denied. Wife's attorney is hereby directed to prepare and file aJudgment of Divorce, Findings of Fact and Conclusions of Law in accordance with this decision within 30 days.
This constitutes the Decision of the Court after trial.