Opinion
13/6997
05-19-2016
Walter Novitski, Plaintiff, v. Christine Novitski, Defendant.
Vincent Barone, Esq. Attorney for Plaintiff Rochester, New York Michael Schmitt, Esq. Attorney for Defendant Rochester, New York
Vincent Barone, Esq. Attorney for Plaintiff Rochester, New York Michael Schmitt, Esq. Attorney for Defendant Rochester, New York Richard A. Dollinger, J.
Sometimes, balancing equities walks the court into a performance worthy of Phillipe Petit: a high-wire journey where the slightest disturbance of undisputed, but uncomfortable, facts causes the court to come down on one side or the other. In this matter in which the defendant (a former wife) seeks to vacate a divorce decree or, in the alternative, presses a claim for maintenance, the court finds itself buffeted by such crosswinds while trying to walk a straight line to the proper exercise of its discretion.
Mr. Petit walked on a tight rope between the Twin Towers of the World Trade Center in lower Manhattan in 1974.
The facts are almost entirely undisputed. The couple were married in 1992. They began discussing a possible divorce in 2008, and in 2011, the husband moved out of the marital residence, but he continued to cover the costs of the home. During this time, the wife was not employed and/or barely earned any income. It is undisputed that the wife's income in the last decade has never exceeded $6,000 annually.
The couple originally consulted with a certified divorce financial planner who served as a mediator. At some point, the mediator assembled a proposal for resolution of the finances involved in this divorce. As part of the initial discussions, the husband indicated that the wife would have the marital residence free and clear, and that the husband would retain his "Pepperidge Farm distribution Route," which was the source of his income. At no time during these negotiations with the mediator did the wife consult with an attorney. She claims that the husband, throughout the discussions with the mediator, had represented that "you did not need [an attorney]" and that "he would take care of it." In 2012, the wife received a letter from her husband asking her to review the proposal from the mediator and advise him of her intentions. In the handwritten letter, the husband states that the mediator had drawn up an outline of a proposed settlement that the wife should review. The husband explained that pursuant to the proposal the wife would receive a portion of the husband's inheritance, the house, maintenance, and half of the husband's social security benefits. The husband also promised to cover the cost of attorney fees to finalize the divorce. The husband told his wife that "you should see him (the mediator) about it," in the letter's closing paragraph.
The letter attached to the wife's papers contains additional handwriting in the margins. There is no identification of these emendations, but it appears that they reflect the wife's subsequent observations regarding the statements made in the letter.
There is no evidence in the record that the wife actually reviewed the "proposal from the mediator" and there is no evidence of the terms of the proposal in the record before the court.
In her current application to the court, the wife now claims that she "mistakenly relied upon the terms that were negotiated." But, there is no evidence that the wife ever accepted the "terms" mentioned in the letter, no evidence she contacted the mediator after receipt of the letter as the husband suggested, and no description of the exact terms of financial settlement that were obliquely referenced in the handwritten letter. From the record before this court, it appears that the discussions with the mediator and the handwritten follow-up letter from the husband to the wife (sometime in 2012), were the only discussions that ever occurred between husband (or his attorney) and wife during the entire divorce process. The husband indicates that, after the letter, his wife stopped participating in the mediation and/or communicating with him, and eventually, frustrated by her lack of response, he retained his current attorney.
On May 10, 2012, the husband's attorney wrote to the wife. The letter indicated that the husband had retained him as counsel and that the parties should enter into a written settlement agreement prior to commencing an action for divorce. The attorney's letter encouraged the wife to contact the mediator to continue the negotiation process. The letter also stated in bold letters:
Please give your immediate attention to this important matter. In the event that you failed to do so we have been instructed to commence a legal action for divorce.The next sentence read: "you are encouraged to consult with your own legal counsel if you so desire." The letter requested that the wife reply by June 9, 2012. The wife did not reply and there is no evidence she contacted her husband during this time.
When the husband's attorney heard no response, he authored a second letter, nearly six months later, on December 5, 2012. The letter informed the wife that the attorney had been instructed to move ahead with the legal separation, a property settlement agreement, and the divorce. The letter asked that the wife respond by December 14th. Importantly, the letter stated that either the wife or her attorney could contact the husband's attorney. The wife never responded to this letter. During this period of time, the wife continued to reside in the marital residence - the husband had vacated the property - and the husband paid all the household bills. On April 24, 2013, nearly a year after the first letter and nearly six months after the second, the husband's attorney forwarded a proposed separation and property settlement agreement to the wife. The agreement was not signed by the husband when forwarded to the wife. The attorney, in his accompanying letter, made it clear that "I cannot represent both of you concerning this matter," and encouraged the wife to read the document carefully, and to consult with her own legal counsel. The husband's attorney asked that the wife review the agreement and sign it if she deemed it appropriate. The letter asked for a response by May 7, 2013.
There is no evidence that this proposed agreement was ever signed by the husband.
The proposed agreement forwarded to the wife contained several of the provisions that the husband had mentioned in the handwritten letter earlier on in the process. He retained the business distribution route that provided him with income and the wife retained the house and its equity. The house equity was valued at $153,300, and the route was valued at $209,000 in the agreement. The agreement also provided for a roll-over of $109,361 from the husband's retirement accounts into the wife's name (the wife was solely responsible for preparation of the documents to effectuate the roll over). The proposed agreement suggests that the husband was rolling over most, if not all, of his retirement accounts to his wife. The agreement also contained a proposed maintenance schedule in which the wife would be paid $1,077.41 per month for 10 years (based on an income to the wife, as stated in the agreement, of $11,082 annually). The agreement represented that the wife could be "self-supporting." The wife never responded to the offered agreement. There is no evidence that she discussed it with her husband, and no evidence that she contacted the husband's attorney.
In a May 15, 2013 follow-up letter to the wife, the husband's attorney indicated that he had not received the signed document and asked her for a response by May 24, 2013. The husband's attorney again heard nothing. On June 24, 2013, the husband's attorney filed a complaint seeking a divorce. The basis for the divorce was an irretrievable breakdown in the relationship. NY DRL § 170 (7). The complaint was served on the wife on June 29, 2013. (There is no dispute that she was served with the complaint.) The wife did nothing: she never filed an answer to the complaint, never contacted her husband's counsel, and never sought legal counsel.
Furthermore, the wife was on notice that her marital status was changing in December, 2013, when she learned that she had been removed from her husband's health insurance plan. Again, there is no evidence that she contacted her husband, his attorney or anyone when she discovered this fact.
The husband, nearly a year after the wife had been served with the verified complaint, then applied for a default divorce. In his testimonial affidavit, the husband indicated that his wife has been employed on a part-time basis as a dental hygienist earning $30 per hour. He stated that his wife was "capable" of working on a full-time basis, and earning approximately $61,000 a year. In the proposed separation agreement, circulated a year earlier, he had pegged his wife's annual earnings at only $11,000 and stated that she had never earned more than $5,000/yr in the previous decade. In the affidavit, he indicated that his wife had sole use and occupancy of the marital residence since 2011 and he further suggested that the trade of the equity in the marital residence for the value of his distribution business involved approximately equivalent values. In his testimonial affidavit, his IRA investment account would be split in half and his wife would be entitled to her half share. This proposal differed significantly from the distribution proposed in the unsigned separation agreement. Pursuant to the testimonial affidavit, the wife would receive half of $131,308. Under the unsigned agreement, she would have received more than $109,341. Finally, the husband, in his testimonial affidavit, stated that he "will file" a statement of net worth, and it will be "served" on the wife. After noting that his wife had failed to file such a statement, the husband states that, "I am reasonably familiar with the defendant's financial circumstances and do not wish to compel discovery."
There is no evidence before the court that the husband ever filed his statement of net worth or served a copy on his wife.
The divorce was issued by default on April 1, 2014, and filed in the Monroe County Clerks Office on April 21, 2014. The wife admits that she was served a final copy of the divorce papers sometime in May 2014, but in what can only be described as a continuing pattern of habitual neglect in this matter, she did not open the envelope containing the divorce decree right away. The wife alleges that she was encountering some health difficulties at the time. In any event, she admits that she did not open the packet containing the divorce papers until June 2015. According to her affidavit, that is when she learned that the terms of the divorce were significantly different than what she was led to believe in 2012.
There is no medical evidence before this court that would support a conclusion that the wife was incapacitated when she received the papers in April 2015, or that any disability prevented her from opening, reading, or comprehending the divorce papers until June 2015.
Nearly two years after the divorce was signed and served on her, nearly three years after she was served with the complaint, six years after she began divorce discussions with her husband, five years after he left the marital residence, after never responding to letters, and neglecting to read the divorce materials for more than a year, the wife now seeks to vacate the divorce. She claims that the value of the distribution that she received under the terms of the divorce was $45,000 less than what "had been represented to her." She also contends that she never received maintenance, which does not surprise this court because the divorce decree did not grant maintenance. It could hardly be considered a surprise to the wife: she was served with the divorce papers in April 2014, had never received a maintenance payment in the two years prior to that date, and never received any after that date. She cannot credibly argue that she "thought" she would receive maintenance when, in fact, she had never received it over a course of four years.
The wife does not specify how she was short-changed in the equitable distribution. It appears the $45,000 reduction resulted from the decrease in the retirement distribution. The proposed agreement - never signed by the wife - allocated her $109,361. The judgment of divorce reduced that distribution to only half of the husband's account or $65,656 or approximately $45,000 less.
In her affidavit before this court, the wife contends that her husband's statement (in his testimonial affidavit) that she was capable of earning $61,920 per year was "the biggest fraud committed upon the court." She argues that she never earned $60,000 during her career, and that her annual income in the last 20 years has never been more than $5,000/yr. In her application, the wife claims that she cannot earn $62,000, but she provides no evidence of an effort to find work or any income tax returns. The only evidence before the court suggests that she had barely worked at all (less than $2,000 in income) during the four years from 2010 - when the divorce discussion started - until 2014. There is no evidence of any disability that would prevent her from working, and no evidence of any effort to find employment, at any time.
In opposing this application, the husband seeks dismissal or the equivalent of summary judgment dismissing the wife's claims. CPLR 3212. In this case, the husband must set forth evidence that there is no factual issue and that he is entitled to judgment, dismissing this application. Forrest v. Jewish Guild for the Blind, 3 NY3d 295, 315 (2004) citing Zuckerman v City of New York, 49 NY2d 557 (1980). If the husband establishes a basis for summary judgment, then the wife must present evidence that there is a triable issue of fact. Forrest v. Jewish Guild for the Blind. The facts must be viewed in the light most favorable to the wife. Id.
While the New York courts have adopted a liberal policy with respect to vacating defaults in matrimonial actions, it is still incumbent on the wife in this instance to demonstrate a reasonable excuse for her default, and the existence of a potentially meritorious defense. Dervisevic v Dervisevic, 89 AD3d 785, 786 (2nd Dept. 2011). If there is no reasonable excuse for the default, then the court need not consider whether the claim — for maintenance, in this case — is meritorious. Mathew v Mathew, 137 AD3d 1086 (2nd Dept. 2016); Diaz v. Diaz, 71 AD3d 947 (2nd Dept. 2010) (since the defendant failed to demonstrate a reasonable excuse for his default, we need not determine whether he had a meritorious defense to the plaintiff's motion). In this court's view, the exercise of discretion has been utilized most often when there were disputes over whether a party received notice, or had legitimate excuses for failing to appear at a trial or inquest. Celesia v Celesia, 136 AD3d 854 (2nd Dept. 2016) (decree vacated in part when party failed to respond to service of the complaint); Backhaus v Backhaus, 128 AD3d 872 (2nd Dept. 2015) (excuse was failure to receive motion papers); Dervisevic v Dervisevic, 89 AD3d 785 (2nd Dept. 2011) (if properly served, then no excuse for default in failing to make an appearance). To grant this application and vacate the judgment, this court must find sufficient facts to establish a prima facie claim that either that the wife's default, in failing to timely answer after service of the complaint, was excusable, or that the husband defrauded his wife when he applied for the divorce judgment. CPLR 5015 (a) (1) (3). Even if the application to vacate the divorce is denied, the wife seeks maintenance as a matter of law.
In this case, there is no dispute that the wife received the handwritten letter from her husband, the letters from his attorney, the proposed separation agreement, the verified complaint, and the divorce decree. She had notice in writing of every twist and turn in this matter.
In order to vacate this judgment of divorce for "excusable fault," this court must conclude that the wife's application was brought within one year after service of a copy of the judgment. CPLR 5015 (a) (1). The wife admits that she received a "packet" - which included the judgment of divorce in May 2014, but she did not bring this application to vacate until March 2016. This court acknowledges that the one-year time limit in CPLR 5015 (a) (1) is not a statute of limitations. Ashley v Ashley, 2016 NY Slip Op 03459 (2nd Dept. 2016) (Supreme Court has the inherent authority to vacate a judgment in the interest of justice even after the statutory one-year period has lapsed). Nonetheless, CPLR 5015 (a) (1) is a legislative direction to this court that applications to vacate judgments - especially judgments of divorce, which allocate assets and free individuals to remarry - should be brought with some haste to avoid easily foreseeable complications. In this instance, the wife's attitude toward the resolution of her marriage - habitual nonchalance at best, and stone-cold indifference at worst - does little to prompt this court to find her default "excusable" even if this court were to consider it "timely" under CPLR 5015 (a ) (1). The wife never returned to mediation, ignored the letters from her husband and his counsel, never responded to the proposed separation agreement (which offered a better deal than the eventual judgment of divorce), ignored the service of the complaint, shelved the "packet" which contained the judgment of divorce, opening it more than a year later, and then waited nine months to bring an action to vacate the default. These undisputed facts curb the court's enthusiasm to use any discretionary powers to rescue the wife from the consequences of habitual neglect. Under these facts, the wife offers no reasonable excuse for the default and fails to meet the one-year requirement. The application to vacate the judgment under CPLR 5015 (a) (1) is denied.
As a second option, the wife alleges that her husband engaged in fraud in obtaining the judgment of divorce, triggering an analysis of her claims under CPLR 5015 (a) (3), which permits this court, in exercise of discretion, to vacate the judgment if the husband engaged in fraud, misrepresentation or misconduct. CPLR 5015 (a) (3). In order to find fraud, there must be evidence of the required elements of fraud: "representation of a material existing fact, falsity, scienter, deception and injury" Goldfarb v Hoffman, 2016 NY Slip Op 03682 (1st Dept. 2016); Edison Stone Corp. v 42nd St. Dev. Corp., 145 AD2d 249, 257 (1st Dept. 1989). Justified reliance is part of the deception incorporated into any allegation of fraud. Stortini v. Pollis, 2016 NY Slip Op 02984 (2nd Dept. 2016); Gottlieb v Gottlieb, 25 NYS3d 90 (1st Dept. 2016) ("an essential element of fraud is justifiable reliance upon the representations made"). The evidence, viewed in the best light for the wife, indicates that the husband, sometime in 2012 or before, acting through a mediator, made a series of proposals for resolution of the financial issues in the divorce action. These proposals are sketched in a hand written letter to the wife, even thought the language is imprecise and does not set forth the exact contours of any property settlement. There is no evidence that the wife accepted this proposal. There is no evidence that she relied on this proposal or took any steps in reliance on it.
In 2013, the husband made a proposal to the wife to give her a lion's share of his retirement accounts and maintenance for 10 years. This proposal was presented in an offer to settle the divorce action, and crystallized in the proposed settlement agreement that the husband's attorney sent to the wife in April 2013. There is no evidence that the wife discussed this proposal with the husband at any time. The wife never responded to the offer, much less "accepted" the offer. There is no evidence, in her affidavit before this court, that she even read the settlement agreement after receiving it in April 2013.
A simple legal review of these facts leads to inescapable conclusions. First, while CPLR 5015 (a) (3) does not contain a time limit, the New York courts have required that any application thereunder be brought within a "reasonable time." Matter of Mclaughlin, 111 AD3d 1185, 1186 (3rd Dept. 2013); Augustin v Augustin, 79 AD3d 651 (1st Dept. 2010). In this court's view, the wife did not bring the application to vacate within a reasonable time. The application was brought nearly 33 months after service of the divorce complaint, and a month-shy of two years after the judgment was entered. In addition, the motion to vacate was brought long after it was apparent that the wife was not receiving maintenance. If she thought she was entitled to maintenance, as she claims the husband promised, then she would have realized that no maintenance was being paid as early as April 2013 - three years before she brought the application to vacate. In this court's view, the application to vacate should have been brought within a reasonable period of time after the wife realized that she was not receiving maintenance. Because it was not brought within a reasonable time - measured either from the time that maintenance should have been paid, but wasn't, the time of service of the complaint, or the date of receipt of the (unread) divorce judgment - the application to vacate on the basis of fraud or misrepresentation is untimely.
Second, the wife has waived her claim to vacate the judgment under CPLR 5015 (a) (3) because she accepted the benefits of the divorce judgment. Matter of Burkwit v. Olson, 98 AD3d 1236 (4th Dept. 2012) (the general rule is that a party who accepts the benefits of an order waives the right to appeal from that order); Elias v. Elias, 187 AD2d 999 (4th Dept. 1992) (by accepting and disposing of the property, defendant is precluded from contesting on appeal the equitable distribution provisions of the judgment). There is no evidence that the husband failed to comply with the judgment of divorce which required him to transfer his retirement accounts and the marital residence to his wife. In his affidavit, the husband -without contradiction from the wife - states that he offered to transfer the marital residence to his wife through his attorney, but his wife never responded. His retirement accounts were, in fact, transferred to her, a fact that she does not challenge. In addition, even though he had no obligation to pay any expenses for his wife, he states - again, without contradiction - that he paid utilities, taxes, and insurance on the marital residence for a year after the divorce. The wife's acceptance of these benefits - both those under the terms of the divorce decree and voluntarily paid by the husband - waives her right to contest the terms of the decree.
Third, the reference to payment of maintenance in the handwritten letter or offer of maintenance in the proposed settlement does not constitute a "misrepresentation" under the language of CPLR 5015 (a) (3). As a matter of contract law, the husband made an offer, encapsulated in the settlement agreement, to resolve the divorce action on certain conditions. The offer had to be accepted by the wife within a reasonable period of time. Sterngass v. Maisel, 133 AD2d 450 (2nd Dept. 1981). Because the wife never demonstrated any assent to this offer, the unaccepted settlement offer is unenforceable and the husband had the right, at any time prior to acceptance, to revoke it. Tierney v Home Depot U.S.A., 2016 NY Slip Op 50711 (U) (2nd Dept. 2016). When the offer expired, the wife lost the power to bind the husband to terms extended in the proposed settlement and her power to accept the offer lapsed. Freed from that offer, the husband was permitted to commence the divorce action. Even at that time, on June 29, 2013, when the complaint was served, the wife may have retained the power to accept the offer in the settlement agreement, but she did not. Despite knowing that the divorce action was commenced, she never sought to request that the now-expired offer be reinstated by her husband. In view of the wife's neglect, the husband was under no obligation, when he filed the testimonial affidavit seeking to distribute his assets and obligations, to conform those obligations to the terms of the unaccepted proposed settlement agreement. Whatever representations that the husband had made in the handwritten note, or in the 2013 settlement agreement, they were no longer binding on him when he submitted his testimonial affidavit and sought a divorce.
Conveniently, the husband could argue that his attorney's notation - please respond by May 7, 2013 — was the establishment of a date on which the offer, contained in the agreement, expired. This court declines to interpret that language as the legal equivalent of an expiration deadline.
Fourth, even if the proffered separation agreement contained "representations" of the husband's intentions, there is no evidence that the representations, at the time, were misleading. The agreement contained the terms that the husband was willing to give to his wife and they were accurate at the time. There is no evidence that the husband intended to deceive his wife by sending her the settlement agreement. Finally, the wife never makes any claim that she relied on the representations that were contained in the proposed separation agreement. In fact, the evidence fairly establishes that she never read them, much less relied upon them.
The final issue before this court involves a misrepresentation that the wife suggests is the "whopper" - the husband's statement, in his testimonial affidavit, that his wife is capable of earning $61,290 annually. In this court's view, this representation is clearly an overstatement, and this court acknowledges that misrepresentations in the statement of net worth can require a court to vacate a decree. Porter v Porter, 137 AD3d 992 (2nd Dept. 2016). The wife properly notes - and the husband was well aware - that the wife had never earned more than $5,000 during each of the years preceding their separation. In dissecting the husband's representations to the court, several conclusions emerge. First, the wife does not deny that she was, at some point "employed" as a dental hygienist earning $30 per hour or that she could not earn $30 per hour as a hygienist. Second, the husband did not directly suggest that his wife was earning more than $60,000; he simply stated that based on her good health, education and work history, she was "capable of working on a full-time basis" and could earn that amount. There is no evidence that the wife lacked the education and good health to earn a significant salary if she worked full-time. However, the husband's claim that this estimate of her income potential was premised, in some part, on her work history was untrue. The husband knew that his wife's work history was sporadic, at best, and would have known that his wife had never earned more than $10,000 annually in the decade before the divorce.
Although this court does not have the couple's jointly filed income tax returns, the court assumes that those returns would validate the wife's claims, especially because the husband does not contest the wife's claims regarding her pre-divorce income. The husband, in his responsive affidavits, does not challenge the wife's assertion that she made less than $5,000 annually in the years preceding the divorce.
This court does not condone the husband's carelessness with the truth. If he had been truthful, the reviewing court might not have condoned the lack of maintenance in the decree. In the findings of the court, the reviewing judge, relying on the husband's affidavit, concluded that the wife's "age, health, work, history, income and assets together with the fact that she has maintained a separate household" led to the conclusion that she was self-supporting and that no maintenance "was required or requested." In fact, a truthful rendition of the wife "work history" would have revealed less than $10,000 a year in income. Similarly, the wife had not "maintained a separate household" during the period after the husband vacated the marital residence and before the divorce. The husband acknowledges that he paid the taxes, mortgage, and utilities for the marital residence in the year before and for a year after the divorce. The husband was, in essence, maintaining the household even after the divorce decree was entered.
In this court's view, these misrepresentations, made in the testimonial affidavit, are not easily ignored. As other courts have noted, dishonest disclosure at a critical stage in a divorce proceeding has consequences:
The court has a vital stake at preserving the sanctity of honesty in disclosure in matrimonial actions filed with the court - - regardless of whether filed by counsel or parties acting pro se. The court thus has a keen need to address whether or not any consequences should flow from dishonest disclosure.N.C. v M.C., 38 Misc 3d 1202 (A) (Sup. Ct. Queens Cty. 2012). Similarly,
[I]n the case of matrimonial actions . . . the withholding of information from the court which, if disclosed, might cause the court to take a different view of the facts, is as much a fraud upon the court as actual misstatements of fact and in matrimonial actions, the People of the State of New York have an interest as a matter of public policy in addition to the rights of the plaintiff and defendant as between themselves.L. C. B. -T. v T. L. T., 38 Misc 3d 1202 (A) (Sup. Ct. Queens Cty. 2012). See also Mestrovic v. Mestrovic, 133 NYS2d 112 (Sup. Ct. Onondaga Cty. 1953). While this court bristles at the lack of verisimilitude from the husband in seeking the divorce decree, the court is equally troubled by the wife's lack of attention to any detail in this divorce proceeding. The court, in scanning the record, cannot find any responsible conduct on the wife's part which would justify holding the husband responsible for his apparent dishonesty, or imposing the drastic consequence of reopening the decree.
If the wife had merely read the divorce decree when she was sent it in May 2014, she would have easily assessed the husband's lack of truthfulness and the court's unfounded conclusions. But, she didn't read it for more than a year. She described it as "an un-opened packet." After she read it, she waited for another eight months to seek judicial relief. In balancing any equities in this case, I find fault on both sides. On one side is an overzealous, truth-shading husband, frustrated by his wife's inattention, and seeking to avoid paying maintenance (which he had at one time offered to pay) to a non-working spouse that he was routinely supporting voluntarily after they separated, even for a year after the divorce. On the other side is a wife who ignored everything related to her marriage and her divorce until years after everything had happened. She failed to respond to a generous settlement offer or even read the divorce decree until more than a year after it was served. Finding both parties equally culpable — one grossly neglectful and the other untruthful in a critical detail — the court declines to use its discretion to vacate the divorce decree to reopen the issue of maintenance, or the equitable distribution plan.
Finally, this court notes that the wife requests that this court, if it denies her application to vacate the divorce decree, nonetheless, order maintenance to her. The court finds that she does not, under the current application, have a meritorious claim for maintenance. There is no evidence that the wife has diligently sought employment, that her income has been constricted by age or disability, that she is "incapable" of earning significant sums, that she cannot meet her lifestyle needs, that her house or vehicles are in danger of any defaults or that she has any debts. Her statement of net worth, dated August 8, 2015, shows no liabilities, which suggests that her lifestyle has been accommodated by her earnings or other sources. There are no income tax returns attached to her statement of net worth. There is no evidence that she is in danger of becoming a public charge. The application for maintenance is denied.
Even under the recent enacted maintenance guidelines, there is no basis for an award of maintenance in the papers before the court. Both parties are able to work, the wife has a lesser income history, but there is no evidence of any educational needs, no allegations of wasteful dissipation, no evidence of domestic violence, no evidence of the consequences of absent health insurance or tax issues and no evidence of any abrupt change in lifestyle. See DRL § 236 B (5-a) (h) (1).
The motion to vacate the judgment of divorce is denied. The application for maintenance is denied with prejudice. DATED: May 19, 2016 _______________________________ RICHARD A. DOLLINGER, A.J.S.C.