Opinion
xxxx/xxxx
10-25-2017
R.A., Plaintiff, v. K.A., Defendant.
For Plaintiff: Patricia Moran, Esq. and Susan J. Malamed, Esq. Pace Women's Justice Center Defendant Via USPS
For Plaintiff: Patricia Moran, Esq. and Susan J. Malamed, Esq. Pace Women's Justice Center Defendant Via USPS Lawrence H. Ecker, J.
NOTICE OF RIGHT TO SEEK MODIFICATION OF CHILD SUPPORT ORDER
This decision contains a child support order. The parties are advised that pursuant to the Low Income Support Obligations and Improvement Act of the Laws of 2010, contained in Domestic Relations Law § 236B(7)(d) and (9)(b)(2) and Family Court Act § 451, unless the parties have specifically opted out of subparagraph (2) or (3) below in a validly executed agreement or stipulation, either party has the right to seek a modification of this child support order upon a showing of:
1. a substantial change of circumstances; or
2. that three years have passed since the order was entered, last modified, or adjusted; or
3. there has been a change in either party's gross income by 15% or more since the order was entered, last modified, or adjusted, provided that the reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience.
The parties are further advised that, pursuant to Domestic Relations Law § 236B(9)(b)(2), child support arrears that have accrued prior to the date of application to annul or modify any prior order or judgment as to child support may not be reduced or annulled.
The trial of this contested matrimonial action between R.A. ("plaintiff") and K.A. ("defendant") was held on September 7, 2017. Defendant did not appear at the Matrimonial Trial Assignment Part on the afternoon of September 6, 2017, at which time, pursuant to the order of Hon. Alan D. Scheinkman, Administrative Judge, 9th Judicial District, the matter was referred to the undersigned for trial that same afternoon. Due to the hour, the court adjourned the trial until the following morning, with a directive given to plaintiff's counsel to advise defendant by e-mail that the trial would proceed the following morning whether or not he appeared. Plaintiff's counsel demonstrated the following morning that she had complied with that directive.
The Issues
The issues to be ruled upon by the court are maintenance, child support, equitable distribution that includes plaintiff's claim of defendant's wasteful dissipation of marital assets, and life insurance. In making its decision, the court has reviewed, considered and evaluated the testimony of plaintiff, the Statements of Net Worth, federal and state tax returns, Statement of Proposed Disposition and other financial documents. The court has evaluated all evidence in light of its relevance, materiality, credibility, importance, weight, and where applicable, permissible inferences have been considered.
Plaintiff was sworn in as the only trial witness. She testified as to the grounds for divorce, as requested pursuant to DRL § 170(7), namely the irretrievable breakdown of the marriage for six months or more. The action was commenced on ****. The parties were married on **/**/**** in ********* in a religious ceremony. The court granted her motion for divorce, with the understanding that the Judgment of Divorce will not be signed until all ancillary issues have been resolved. Offered in evidence as Ex. 1 was the Parenting Stipulation, dated July 24, 2017, and acknowledged by each of them. The Parenting Stipulation sets forth that there are three children of the marriage, namely ****, born ***** , ****, born **** and ****, born ****. In accordance with the Parenting Stipulation, Article 2 provides that the children shall reside primarily with the Mother. This is so, notwithstanding the parties are both still residing within the marital residence, albeit in separate parts of the residence.
Plaintiff testified that defendant has been primarily employed as a maintenance worker/plumber for a state agency. He also runs his own plumbing business on the side, as admitted to plaintiff by defendant. He works a regular shift of 40 hours per week, leaving the house at 7:00 a.m. and returning home by 4:30 p.m. As to his side job, he receives calls on his cell phone, and is paid by cash and check. Plaintiff also knows that defendant conducts his side business because she had referred customers to him in the past. She testified that he told her in June, 2016 that he earned $100,000. per year from both jobs, a statement he repeated before Rohana Itubany, a mediator who met with the parties. Plaintiff has seen defendant leaving the residence with his tools that he stores in the basement, and that he needs only for the second job. Plaintiff also did plumbing work at his brother's laundromat. In August, 2017, plaintiff saw defendant leave the residence with his tools on three occasions.
Plaintiff introduced as Ex. 2 copies of Wells Fargo Combined Statements of Account No. xxxx4578, for the period July 1, 2014 through January 27, 2017. Plaintiff introduced as Ex. 3 a group of deposit slips into this account, one of which, dated June, 2014, showed deposit of a check and cash totaling $1,073.50, no part of which represented his bi-weekly wages from the State. As an aid to the court, plaintiff introduced a compilation of deposits that showed $10,000. in paychecks and $13,863.50 in other sources for the period July 1, 2014 through December 31, 2014, $27,730.20 in paychecks and $23,295. in other sources for calendar year 2015, and $27,500. in paychecks and $10,478. in other sources for calendar year 2016. Plaintiff introduced defendant's Statement of Net Worth as Ex. 5 showing gross income for 2016 of $46,082.45, as per his pay stub dated December 22, 2016.
Plaintiff has requested that the court deem plaintiff's annual income to be $70,082., based upon his gross wages and his side income which is estimated to be $24,000. per year, which the court hereby adopts. The calculation of defendant's income, for guidelines purposes, is as follows: $46,082.45 - $2,857.11 (FICA) - $668.20 (Medicare) = $ 42,557.14 + second job income of $24,000. = $66,557.14. It is noted that defendant's individual 2015 federal and state income tax returns, attached to his Statement of Net Worth, do not reflect income from other than regular wages. In that year defendant received a federal tax refund of $5,690. and a state tax refund of $2,203. The total of these two items is $7,893., which when added to the figure of $66,557.14, totals $74,450.14. The court finds that this is the more appropriate figure upon which to calculate its child support and maintenance awards, given that the 2015 tax returns are before the court as the last filed returns by defendant, and the amount refunded represents real buying power.
Plaintiff introduced as Ex. 6 her Statement of Net Worth. She has a ninth grade education and is employed full-time at a coffee shop earning $18,463. per year [$11. per hour], as confirmed by her 2016 federal income tax return attached to the Statement of Net Worth. She is no longer working at her brother-in-law's laundromat, from which she earned $2,850. in 2016, as shown on the W2 for that year, introduced as Ex. 7. Using only her wages from the coffee shop, plaintiff's adjusted gross income, for guidelines purposes, is estimated to be $17,050.58, taking into account a deduction of 7.65% from her gross wages to account for FICA and Medicare, which equals $1,412.42. In 2016, she received a federal tax refund of $2,177 and a state tax refund of $441., for a total refund of $ 2,618, representing real buying power, added to $17,050.58 supra, equals $19,668.58. It is this figure that the court will use for guidelines purposes.
Maintenance
Pursuant to DRL § 236.B.6.1.(g), the maintenance obligation shall be calculated prior to the child support obligation because the amount of maintenance awarded must be subtracted from the payer's income and added to the payee's income as part of the calculation of the child support obligation. This is a thirteen-year marriage. DRL § 236.B.6.f(1) provides advisory direction that the court may determine the duration of post-divorce maintenance of a marriage of 0 - 15 years at 15% to 30% of the length of the marriage for which maintenance will be payable. Plaintiff, in her Statement of Proposed Disposition, seeks maintenance for a period of 11 years, 10 months. According to the statute, DRL § 236.B.6.c.(1)(a), where child support is to be paid by a parent who is the non-custodial parent, and whose income is below the current income cap of $178,000., the formula to be used is as follows:
Step 1: Calculate 20% of the payer's income and subtract 25% of the payee's income: Payer:20% X$74,450.14= $14,890.03 Payee:25% X$19,668.58= ($4,917.15) Total:$9,972.88
Step 2: Calculate 40% of the parties' combined income (capping the payer's income at $178,000 and subtract payee's income:
| Payer: | $74,450.14 |
| Payee: | $19,668.58 |
| Subtotal: | $94,118.72 |
| 40% of Subtotal: | $37,647.49 |
| Payee's Income: | ($19,668.58) |
| Total: | $17,978.91 |
Step 3: Compare the resulting amounts from Steps 1 and 2. The lesser amount will be the presumptive amount of maintenance. Here, the lesser amount is $9,972.88 from Step 1.
Commencing November 1, 2017, and continuing each month thereafter, defendant shall pay plaintiff, as and for post-divorce maintenance, for a period of seven (7) years, measured from November 1, 2017, the amount of $9,972.88 per year, which equals a bi-weekly payment of $383.57, due and payable the first and fifteenth of each month, payable direct, until such time as the income execution requested by plaintiff through the Support Collection Unit is in place. In addition, and to be added to the amount of post-judgment maintenance, is the amount of $10,803.91, representing 13 months [9/30/16 - 10/31/17] [$9,972.88 ÷ 12 months = $831.07 per month x 13 months = $10,803.91] for past due maintenance, at the rate of $ 100. bi-weekly, either direct pay or through the Support Collection Unit, once that account is in place. Post divorce maintenance shall terminate upon the death or remarriage of plaintiff, or pursuant to DRL § 248. The post-divorce maintenance shall not be deductible by plaintiff or need to be included by plaintiff for income tax reporting purposes, the reason being that defendant will continue to enjoy the tax benefit associated with unreported income and showed no federal income tax owed for 2015.
Child Support
The court has found that plaintiff's adjusted gross income for guidelines purposes is $19,668.58, plus the amount of maintenance supra, $9,972.88, which equals $29,641.46, and defendant's adjusted gross income for guidelines purposes is $74,450.14 less $9,972.88, for an adjusted gross income of $64,477.26, and combined parental adjusted gross income of $94,118.72. Plaintiff is seeking child support only for the two younger children as the oldest child is living on his own and is self-sufficient. The two children are entitled to 25% of their parents' adjusted gross income, which equals $23,529.68. Plaintiff earns 31.5% of that amount and defendant earns 68.5% of that amount. Hence, plaintiff is deemed responsible for $7,411.92 per year, or $617.65 per month, and defendant is responsible for $16,117.83 per year, or $1,343.15 per month.
Commencing November 1, 2017, and continuing each month thereafter, until the emancipation of one of the two children who are to receive child support, defendant shall pay plaintiff, as and for basic child support, the amount of $16,117.83 per year, which amounts to a bi-weekly payment of $619.92, due and payable the first and fifteenth of each month, payable direct, until such time as the income execution requested by plaintiff through the Support Collection Unit is in place. In addition, and to be added to the amount of post-judgment child support, is the amount of $17,460.95 representing 13 months [9/30/16 - 10/31/17] as follows: $16,117.83 per year ÷ 12 months = $1,343.15 per month x 13 months = $17,460.95] for past due child support at the rate of $150 bi-weekly to be added to the amount of basic child support., either direct pay or through the Support Collection Unit, less the following credits, as stated by plaintiff in her Statement of Proposed Disposition [NYSCEF Doc. No. 45], for items paid by defendant, namely $ 160. per month for Con Edison, total for 13 months is $2,080.; $183. per month for fuel oil, total for 13 months is $2,379., and 25% of the food expenses of $600. or $150. per month, total for 13 months $1,950. Total credits due defendant are $6,409., which when subtracted from the child support total arrears of $17,460.95 equals a net due for past child support of $11,051.95, payable as directed, supra.
Plaintiff shall be responsible for statutory add-ons at the rate of 31.5% and defendant shall be responsible for statutory add-ons at the rate of 68.5%.
Defendant shall be entitled to declare both younger children as dependants for income tax reporting purposes, provided he is in full compliance with his support obligations, as herein set forth. At such time as plaintiff earns from her labors more than $30,000. per year, the parties shall share equally the dependancy allowances for the two children, but again only if defendant is in full compliance with his financial obligations.
Defendant shall continue to enroll the children in the health insurance plan provided by his employer, New York State, and plaintiff, at her own expense, may utilize such health insurance coverage for C.O.B.R.A. coverage, for as long as available to her.
The award of post-divorce maintenance and basic child support, plus the arrears due for each of these items yields the following results, which the court finds to be a fair and equitable distribution of the parties' combined wealth, and the allocation of same to the needs of the family members who are entitled to be supported by defendant.
Plaintiff's annual funds available for herself and the two supported children:
| Plaintiff's adjusted gross income | $19,668.58 |
| 2016 federal income tax | $0.00 |
| 2016 NYS income tax | ($281.00) |
| Post-divorce maintenance [ per annum-7 years] | $9,972.88 |
| Maintenance arrears [per annum-7 years] | $1,543.42 |
| Basic child support | $16,117.83 |
| Child support arrears | $3,900 |
| Total | $50,921.17 |
This amount is sufficient to cover plaintiff's claimed monthly expenses, as shown on her Statement of Net Worth [Ex. 6].
Defendant's annual funds available for himself:
| Defendant's adjusted gross income | $74,450.14 |
| 2015 federal income tax | $0 |
| 2015 NYS income tax | ($505) |
| Post-divorce maintenance obligation | ($9,972.88) |
| Maintenance arrears | ($1,543.42) |
| Basic child support obligation | ($16,117.83) |
| Child support arrears | ($3,900) |
| Total | $42,411.01 |
Equitable Distribution
A. Marital residence
Plaintiff seeks, and is hereby awarded exclusive use and occupancy of the marital residence, together with the dependant children, until the youngest child graduates high school, or plaintiff elects to vacate, whichever sooner occurs. Defendant shall vacate the marital residence no later than forty-five (45) days from the date of this Decision/Order, taking with him his personal property and work tools. At such time as the marital residence is placed on the open market for sale, which if such occurs during the youngest child's last year in high school, shall be, at the latest, February 1st of that year, the parties shall select a licensed real estate broker well familiar with the neighborhood where the marital residence is situated, who shall list the marital residence on multiple listing. In the event the parties cannot agree upon which real estate broker to use, then the court directs that the nearest Century 21 (or its successor) office be designated as the listing broker. The upset price for the marital residence shall be as recommended by the broker. The net proceeds from the sale of the marital residence shall be divided as directed supra. Plaintiff shall be solely responsible for the upkeep and maintenance of the marital residence after defendant has vacated.
B. Defendant's pension and deferred compensation.
These benefits shall be divided pursuant to the Majauskas formula (Majauskas v Majauskas, 61 NY2d 481 [1984]), with plaintiff to receive one-half of that amount of the benefit(s) that accrue to her account, and are to include pre-retirement and post-retirement death benefits. The expense of preparing the Domestic Relations Orders required to facilitate the division of these assets shall be divided equally. Defendant shall designate the children as alternate beneficiaries in the event plaintiff predeceases defendant.
C. Automobiles
Plaintiff shall retain title and possession of the 2010 Suburu, and shall be solely responsible for the outstanding loan thereon. Defendant shall retain title and possession of the 2006 Honda which is debt-free, or if there is a loan, he shall be solely responsible for same. Each party shall indemnify and hold the other harmless as to any said loan(s).
D. Defendant's Gamblng / Wasteful Dissipation of Marital Assets
In determining an equitable distribution of marital property, the court must consider, inter alia, the wasteful dissipation of assets by either party [DRL 236[B][5][d][12]. A spouse who alleges that the other engaged in waste and dissipation of marital assets bears the burden of establishing that conduct by a preponderance of the evidence. Renck v Renck, 131 AD3d 1146 [2d Dept 2015]; Heymann v Heymann, 102 AD3d 832, 834 [2d Dept 2013; Epstein v Messner, 73 AD3d 843, 846 [2d Dept 2010].
Plaintiff produced documentary evidence that defendant frequents the Empire City Casino in Yonkers. Plaintiff introduced Ex. 9 as an aid to the court which enumerates the withdrawals from his Wells Fargo account number xxxx4578, all of which were ATM transactions at the casino. For the second half of 2014, these withdrawals were $4,000; for calendar year 2015 $17,500. and for calendar year 2016, $15,800., for a total of $37,300. Plaintiff introduced as Ex. 10 withdrawals from the parties' Chase joint account xxxx4998, summarized as an aid to the court in Ex. 11, that show Empire City withdrawals by defendant in calendar year 2012 totaling $10,000. and for one half of 2013 totaling $22,372., which together equal $32,372. The records of the parties' Discover Card show Empire Casino withdrawals from this account totaled $7,300. [$ 3,300. ATM and $4,000. cash advances], as demonstrated in Ex. 13.
Plaintiff has shown that defendant spent $ 76,972. in apparent support of his gambling activities, while at the same time failing to pay the mortgage principal and amortization, real estate taxes and homeowner's insurance since January 2016. According to defendant's Statement of Net Worth, sworn to on January 30, 2017 [Ex. 8, Expenses, Section II(a)], these housing expenses amount to $2,041. per month, which is not disputed. She argues that the apparent gambling expenses constitute waste of a marital asset. The court agrees. Had defendant not spent the substantial sums of money at the casino over a period of five years, there would have been sufficient funds to pay the mortgage in a timely fashion.
The court finds that defendant is indebted to plaintiff in the amount of $38,486., representing one-half of the amount of his gambling expenses. Plaintiff shall be entitled to enter judgment against defendant in this amount, and to have execution thereof. Added to this amount shall be any amount greater than one-half that plaintiff is caused to pay as to the outstanding balance on the Discover Card, approximating $5,000., part of which was incurred by the parties when plaintiff and the three children visited family in Afghanistan 7 or 8 years ago, which was a trip approved by defendant, and part of which represented family and household necessaries.
E. Life Insurance
Pursuant to DRL § 236(8)(a): "[t]he court may...order a party to purchase, maintain or assign a policy of insurance on the life of either spouse, and to designate either spouse or children of the marriage as irrevocable beneficiaries during a time fixed by the court. The interest of the beneficiary shall cease upon termination of such party's obligation to provide maintenance, child support or a distributive award...."
This provision empowers the court to secure future payments of maintenance and child support, as well as payments pursuant to any distributive award, by directing the payor spouse to purchase, maintain or assign a policy of life insurance to protect the recipient in the event the payer dies prior to the time the future obligation is satisfied. Macari v Marichal, 83 AD3d 942 [2d Dept 2011]; Baron v Baron, 71 AD3d 807 [2d Dept 2010]; Comstock v Comstock, 1 AD3d 307 [2d Dept 2003].
It has been held that to require that a life insurance policy be reduced each year "...by the amount of child support paid in the prior year, is difficult to administer" Fogarty v Fogarty, 284 AD2d 300 [2d Dept 2001], and that a fixed amount of life insurance for collateralization of support obligations is preferable. Lueker v Lueker, 72 AD3d 655 [2d Dept 2010]; Corless v Corless, supra.
Plaintiff has proposed that defendant obtain and maintain life insurance on his life in the amount of $200,000. The court directs that defendant obtain and maintain $200,000 coverage in life insurance and designate plaintiff as the irrevocable beneficiary until defendant's maintenance and child support obligations cease. The required coverage may be maintained through employer provided group life insurance, supplemented as need be, by privately obtained term life insurance. Defendant shall have forty-five (45) days from the date of this Decision/Order to furnish proof to plaintiff that the life insurance policy is in full force and effect. Further, at the time that defendant provides plaintiff with this documentation, he shall provide her with his written, acknowledged authorization allowing her to have access, now and in the future, to the insurance carrier to confirm coverages and payments going forward. In the event defendant does not maintain said policies, plaintiff may pay the premiums, and seek reimbursement from defendant, including reasonable attorneys' fees, costs and disbursements. In addition, the amount of the life insurance required hereunder shall be a first lien against defendant's estate. Upon the emancipation of the last child as a dependant, defendant may cancel the life insurance coverages, or change the beneficiary(ies) thereof.
Conclusion
The court has considered plaintiff's contentions not specifically addressed herein. To the extent any relief requested by plaintiff was not addressed by the court, it is hereby denied.
Pursuant to 22 NYCRR § 202.48, plaintiff's counsel shall settle the Findings of Fact/Conclusions of Law and Judgment of Divorce, consistent with this Decision/Order After Trial within 30 days and serve same upon defendant by certified mail/return receipt requested and first class mail, with working copies to the court, on or before November 27, 2017.
This case is adjourned to November 29, 2017 at 9:30 a.m. for calendar purposes. The parties and counsel shall appear unless the documents have been submitted by that date.
Trial exhibits and trial notebooks may be retrieved from the Part Clerk. If they are not picked up withing 30 days, they shall be destroyed without further notice.
The foregoing constitutes the Decision/Order After Trial of the court. Dated: October 25, 2017 White Plains, New York HON. LAWRENCE H. ECKER, J.S.C.