Opinion
09-23-2024
R.F., Plaintiff, v. A.F., Defendant
Joseph R. Miano, Esq., counsel for the plaintiff/husband, Law Office of Joseph R. Miano Maria DeMarco, Esq., Law Office of Maria DeMarco PC
Unpublished Opinion
Joseph R. Miano, Esq., counsel for the plaintiff/husband, Law Office of Joseph R. Miano
Maria DeMarco, Esq., Law Office of Maria DeMarco PC
HON. JAMES L. HYER, J.S.C.
RELEVANT FACTUAL AND PROCEDURAL HISTORY
The parties were married on [Redacted]. During the parties' marriage, a personal injury action was commenced in the New York State Supreme Court captioned, [Redacted], which was resolved pursuant to a stipulation of settlement dated August 24, 1982, which set forth the following structured settlement payable to Defendant (hereinafter the "Annuity"), a copy of which was admitted into evidence at hearing as Plaintiff's Exhibit 3:
"The above-entitled matter is hereby settled by and between the respective parties and their attorneys without interest, costs and disbursements to either party upon the following terms and conditions:
1. a) Plaintiff shall be paid by the [Redacted] Insurance Companies of [Redacted], the sum of $1,900 per month until Plaintiff reaches the age of sixty-five (65) years. Should Plaintiff die before the age of sixty-five (65), the above sum shall be payable to Plaintiff's designated beneficiaries as if Plaintiff had lived to the age of sixty-five.
b) After Plaintiff passes the age of sixty-five, Plaintiff shall be paid the sum of $2,300 per month for the balance of Plaintiff's lifetime. Said payment shall cease with the first payment due after the date of Plaintiff's death.
2. a) Plaintiff shall, in addition to the sums set forth in 1a and 1b supra, be paid by the [Redacted] Insurance Companies of [Redacted], the sum of:
$25,000 upon Plaintiff's 50th birthday
$50,000 upon Plaintiff's 55th birthday
$75,000 upon Plaintiff's 60th birthday
$100,000 upon Plaintiff's 65th birthday
$125,000 upon Plaintiff's 70th birthday
Should Plaintiff die before the age of 70, the above sums shall be payable to Plaintiff's designated beneficiaries if Plaintiff had lived to the age of 70 in accordance with the above schedule.
b) After Plaintiff passes the age of 70, Plaintiff shall be paid the sum of $125,000 every fifth birthday thereafter for the balance of Plaintiff's lifetime. Aid payment shall cease upon Plaintiff's death.
3. Plaintiff shall be paid the sum of $50,000 payable to [Redacted] and [Redacted] with the execution of this document, receipt of which shall be separately acknowledged."
This matrimonial action was commenced with Plaintiff's filing of a summons and complaint on November 11, 2007.
On October 15, 2009, the parties entered into a stipulation of settlement resolving all of the ancillary issues arising out of the dissolution of the parties' marriage by placing terms on the record which are set forth in a so ordered Court Transcript (hereinafter the "Stipulation of Settlement"). Prior to the terms being placed on the record, with a Portuguese language court interpreter present, the Court confirmed that it was the understanding of the parties that a settlement had been reached and requested that the parties listen carefully and ask their attorneys questions to the extent necessary:
Citations to the Court Transcript of the Stipulation of Settlement refer to the Court Exhibit admitted into evidence at trial as Plaintiff's Exhibit A (NYSCEF Doc. No. 5) (hereinafter "Settlement Transcript").
"THE COURT: Good morning. This is the matter of [Redacted] v. [Redacted], Index No. [Redacted] of [Redacted]. This matter has been referred to me by Judge [Redacted], having been referred to this part by Judge [Redacted] on the issues of equitable distribution and maintenance. We have previously conferenced this case on more than on occasion and I understand we have reached a settlement.
MR. MIANO: That's correct.
THE COURT: Who will be placing this on the record?
MR. MIANO: I will place it on the record. Obviously [Redacted] will add anything if he thinks it's necessary.
THE COURT: [Redacted], I would request that both of you listen carefully. If you have any questions or there is something that you don't understand, please make a note of it and you can discuss it with your attorney.
[Redacted]: Okay.
[Redacted]: Okay."
(See, Settlement Transcript 2:1-25; 3:1-7)
The Stipulation of Settlement further provides the parties' agreement with respect to a parcel of real property located in the country of Portugal known as "La Cortina" (hereinafter the "Portugal Property"):
"MR. MIANO:... However, there is one property that is partial marital in nature which is called La Cortina, L-A-C-O-R-T-I-N-A, which is located in [Redacted], [Redacted], located at [Redacted], [Redacted], [Redacted]. This property consists of land and a partially completed single family residence. The parties have agreed that they shall endeavor in the future to make equal contributions to the work and materials that will be needed to complete the residence. Once completed, the parties have also agreed that they shall share occupancy of the residence as follows: the residence shall be divided into two time periods. One beginning in August running through the following January and the second beginning February through the following July. Each party shall be entitled to one of the two time periods with [Redacted] selecting at this time the time period he desires. Thereafter, the time periods shall be alternated. However, with respect to [Redacted], she will notify [Redacted] if she intends to utilize the property during her time period at least 90 days prior to the commencement of her time period. If she does not notify him that she has elected to take occupancy during her time period, [Redacted] will be entitled to occupy the premises during that period also. The parties have advised that there is a car at these premises La Cortina and it will continue to be maintained and insured and be available for the enjoyment and use of both parties."
* * *
MR. MIANO: With respect to the property in Portugal, La Cortina, each party represents and covenants that they will either by deed instrument or by last will and testament, take all steps necessary to insure that upon their death their interest in that property will pass equally to their grandchildren. I guess finally the expenses currently being paid at the Portugal residence which may include some real estate taxes and car insurance will continue to be paid in the same manner as they have been in the past. The off the record colloquy indicated that the parties have agreed that they will each bear the expenses associated with their respective occupancies of the premises at such times they may be present.
THE COURT: Let's go off the record (whereupon a discussion was held off the record.)
THE COURT: Back on the record. There was some off-the-record discussion about the automobile at the Portugal property. The record should at this time reflect that the parties' daughter has been in the room for this entire stipulation. Part of the discussion was with her just now and it is understood by the parties that [Redacted] remain the titled owner of the car. It will be available to [Redacted] for her use when she is at the premises.(See, Settlement Transcript 17:5-25; 15:1-25; 19:1-2; 23:25; 24:1-25; 25:1-15)
The Stipulation of Settlement provided the following terms pertaining to a marital real property known as [Redacted] (hereinafter the "[Redacted]"):
"MR. MIANO: I will slow down. As to the real estate owned by the parties at [Redacted], it is the agreement of the parties that all right, title and interest to the [Redacted] property shall become the property of [Redacted] and clear of any claims of [Redacted].
MR. MIKLUS: Might I add one thing? [Redacted], that the residence is a six-family home known as [Redacted], and I am also assuming that henceforth, [Redacted] will have the right to collect all rents therefore, but will also have the duties to pay all expenses with reference to that property in any form whatsoever."(See, Settlement Transcript 4:17-25; 5:1-10)
The Stipulation of Settlement provided the following terms pertaining to a marital property known as [Redacted] (hereinafter the "[Redacted]"):
"MR. MIANO: As to the second piece or property that is a single-family residence located at [Redacted], all right, title and interest to that property shall be transferred to [Redacted] free and clear of any claims by [Redacted]. That house is presently rented and there is a three-year lease. Three or Four?
[Redacted]: Four.
MR. MIANO: Four-year lease currently in affect for that property for a monthly rental of $5,500. [Redacted] will transfer the two months' security deposit collected by him in the amount of $11,000 and relinquish any rights to the property. In addition, there is a first mortgage of approximately $300,000 on the [Redacted] property under which both parties are liable as mortgagees. Payment of that mortgage and all of the expenses from this day forward shall be the responsibility of [Redacted] and she will hold harmless and indemnify [Redacted] with respect to any breach of her obligations to pay this joint mortgage on the [Redacted] property."(See, Settlement Transcript 5:11-25; 6:1-16)
The Stipulation of Settlement includes a provision wherein Defendant agrees to provide Plaintiff a monthly spousal support payment of $1,000.00 until the death of either party, in addition to other periodic lump sum support payments originating from the Annuity:
"In addition to the transfers of the real estate, as set forth, [Redacted] shall also make payment of $50,000 upon his receipt of his periodic lump sum annuity payment which is payable to him under a structured settlement. That structured settlement provides for a monthly payment of approximately $2,300 and a periodic payment of $125,000 every five years. As part of the equitable distribution award and maintenance and waiver of additional maintenance, [Redacted] shall pay to [Redacted] the aforesaid $50,000 upon receipt of the lump sum annuity that he shall receive in September 2011. In addition thereto, each five years thereafter in which he collects his lump sum payment of $125,000, he shall upon receipt of the lump sum, pay the sum of $25,000 to [Redacted]. In addition thereto, commencing on October 1, 2009, [Redacted] shall pay monthly maintenance in the amount of $1,000, which payment shall be made directly by him to [Redacted] as and for maintenance. This Maintenance payment shall continue through the natural life of either of the parties and terminate upon the death of [Redacted] of the death of [Redacted].
[Redacted]: I'm going to ask a question, will this monthly payment terminate if [Redacted]should remarry?
MR. MIANO: Yes."(See, Settlement Transcript 7:17-25; 8:1-25; 9:1-8)
The Settlement Transcript confirms that each party was sworn in and subject to an allocution by the Court wherein both parties confirmed that they understood the terms of the Stipulation of Settlement and agreed to be bound by said terms.
On January 22, 2010, a Judgement of Divorce was entered dissolving the parties' marriage, which did not merge but incorporated the terms of the Stipulation of Settlement.
Thereafter, the parties engaged in significant post-judgment motion practice pertaining to the spousal support payments due from Defendant to Plaintiff. Plaintiff has filed multiple applications seeking to hold Defendant in contempt for failure to provide payment of spousal support payments to her, while Defendant has sought unsuccessfully to obtain a downward modification of his spousal support payments.
On February 13, 2024, Plaintiff filed a motion (hereinafter "Motion Sequence #11") requesting that an order be entered granting the following relief:
1. Holding the Defendant in contempt of this Court for his continued willful violation of the parties' September 15, 2009 oral stipulation of settlement, placed on the record in open Court, in failing and refusing to pay the Plaintiff maintenance in the amount of $1,000.00 per month with arrears of $14,000.00 and accruing;
2. Ordering sequestration of Defendant's property / monies in an amount to be determined by this Court but no less than the cost of the Defendant's remaining maintenance obligation due Plaintiff pursuant to DRL 243;
3. Awarding Plaintiff counsel fees in the amount of seven thousand five hundred ($7,500.00) dollars in connection with the instant proceeding, with leave to seek additional fees if necessary; and
4. For such other and further relief as this Court deems necessary and proper.
On March 28, 2024, Defendant filed a cross motion (hereinafter "Motion Sequence #12") seeking the entry of an order granting the following relief:
1. Directing that Defendant's current maintenance obligation be terminated, or modified, and an offset be issued on any alleged maintenance arrears of Defendant as a result of Plaintiff's willful and deliberate default of her payment obligations, regarding the property known as La Cortina; and
2. For such other and further relief as may be just, proper and equitable.
On July 3, 2024, a Decision and Order was entered pertaining to Motion Sequence #11 and Motion Sequence #12, wherein all relief sought in both motions were referred to a hearing to be held on August 5, 2024; both parties were directed to serve and file pre-hearing disclosure by July 26, 2024; and counsel was directed to file the documents necessary to convert this action to a NYSCEF filed case.
On August 5, 2024, all parties appeared with counsel, after which an Order was entered scheduling the hearing to continue on August 27, 2024 (NYSCEF Doc. No. 24).
On August 27, 2024, all parties appeared with counsel and the hearing was completed, after which an order was entered which directed that by September 6, 2024, counsel may file post-hearing submissions, and counsel were directed to order a copy of the Court transcript, split the cost equally and file same by September 27, 2024 (NYSCEF Doc. No. 25).
Plaintiff's counsel filed a post-hearing submission on September 4, 2024 (NYSCEF Doc. No. 26). Plaintiff's counsel asserts that at the time of the Stipulation of Settlement Defendant's monthly income was $10,758.66, comprised of $6,000.00 in rental income; $2,300.00 in monthly structured settlement payments from the Annuity; $1,666.66 in monthly pro-rated structured settlement payments originating from the $100,000.00 received by him every five years divided by six months from the Annuity; and $792.00 in Social Security payments. Counsel then asserts that following the entry of the Judgment of Divorce, Defendant sold the [Redacted] Property for $900,000.00 and received $500,000.00 in cash and $400,000.00 in the form of a purchase money mortgage between Defendant and the purchaser, a copy of which was admitted into evidence at trial as Plaintiff's Exhibit D (hereinafter the "Purchase Money Mortgage") , wherein he would receive $3,000.00 per month. Plaintiff's counsel then claims that on March 28, 2017, Defendant purchased a new construction home for $500,000, which he placed in the name of his current spouse. Accordingly, Defendant's counsel proffers that no financial hardship exists. With respect to the offset claims of Defendant pertaining to the Portugal Property, Defendant's counsel asserts that no such offsets should be awarded as no contribution to the alleged renovations to the property were required of Plaintiff pursuant to the Stipulation of Settlement and no proofs of such expenses exist. Finally, Defendant's counsel requests an award of legal fees in the amount of $20,140.00, comprised of $14,409.50 related to this instant litigation and $5,920.00 related to prior litigation pertaining to a motion filed by Defendant in 2023.
The Purchase Money Mortgage is dated February 17, 2017; referencing a note as of the date; listing [Redacted] and [Redacted] as borrowers, and Defendant and [Redacted] as Lenders; for the loan amount of $400,000.00; providing collateralization rights to the lenders pertaining to the [Redacted] Property; with a payment period through March 31, 2032 with amounts due to be paid on a monthly basis making reference to the note as to the amount of the monthly payments.
Defendant filed a post-hearing submission on September 6, 2024 (NYSCEF Doc. No. 27), requesting that the Court modify or terminate Defendant's spousal support obligations to Plaintiff, asserting that such relief would be warranted due the alleged existence of a substantial change in circumstances and existence of extreme hardship. Defendant's counsel notes," Starting in 2015, the Defendant has had difficulty in meeting his monthly obligations and this inspired the parties to commence an endless series of contempt motions by the Plaintiff and motions for downward modifications from the Defendant. The instant motion and cross-motion are a continuation of this theme" (emphasis added) (NYSCEF Doc. No. 27 ¶ 1). Counsel requests that the Court take into consideration Defendant's advanced age, medical ailments and monthly expenses of $7,075.00, from which Defendant claims difficulty in meeting his monthly expenses. With respect to the Portugal Property counsel asserts that Plaintiff owes Defendant forty thousand euros for half the funds Plaintiff spent on improvements to the property and half of the monthly expenses. Counsel asserts that Defendant cannot pay the $1,000.00 in spousal support per month and requires a termination or downward modification of Defendant's spousal support obligations to Plaintiff to permit him to remain in his home.
The Court transcript for the hearing was filed on September 17, 2024 (NYSCEF Doc. No. 28) (hereinafter referred to as the "Trial Transcript") .
Citations to the Court Transcript of the hearing refer to this document, which includes only the second day of the hearing, as the first day included only a discussion of procedural issues.
HEARING TESTIMONY AND DOCUMENTS IN EVIDENCE
The Court held a hearing on August 5, 2024 and August 27, 2024. Appearances were made by Plaintiff, Plaintiff's counsel, Defendant and Defendant's counsel. Two Portuguese language court interpreters were present and provided assistance to both Plaintiff and Defendant.
Exhibits:
During the hearing, the following exhibits were admitted into evidence:
Plaintiff's Exhibits
1. Exhibit A: Court Transcript dated 10/15/2009
2. Exhibit B: Judgment and Decree dated 1/22/2010
3. Exhibit C: Stipulation of Settlement dated 8/24/1982
4. Exhibit D: Mortgage dated 2/17/2017
5. Exhibit D1: Attorney Invoices for services 7/3/2024-8/5/2024
6. Exhibit E: Order to Show Cause dated 12/23/2016
7. Exhibit F: Order to Show Cause dated 4/23/2021
8. Exhibit G: Affidavit in Opposition dated 10/30/2023
9. Exhibit H: Statement of Net Worth, undated
10. Exhibit I: Google Maps Photograph - [Redacted]
11. Exhibit J: Affidavit in Opposition and in Support of Cross Motion dated 1/20/2016
12. Exhibit K: [Redacted] Hospital Records
13. Exhibit L: Attorney Invoices for services 1/8/2024-4/11/2024
14. Exhibit M: Engagement Agreement dated 10/30/2023
Defendant's Exhibits
1. Exhibit 1: Court Transcript dated 10/15/2009
2. Exhibit 2: Statement of Net Worth of Defendant dated 3/28/2024
Witnesses:
Plaintiff, Defendant, [Redacted] (Defendant's Wife), and Joseph R. Miano, Esq., (Plaintiff's counsel) were the four witnesses who testified at the trial.
a. Summary of Testimony of Plaintiff
Plaintiff testified that she was married to Defendant and that the parties divorced in 2010. She testified that she receives $400.00 per month from Social Security income, she currently resides with her daughter, and she has experienced medical problems. She testified that she has problems with her joints and has had surgery done on her ears, neck, and heart. She testified that as part of the resolution of the parties' divorce, Defendant was to pay her support in the amount of $1,000.00 per month and that Defendant currently owes her approximately $20,000.00. She testified that in 2023, Defendant paid her the required support in February and March but owes her the remaining ten months of support, and that in 2024 thus far Defendant has provided her with no support payments. She testified that she hired her current attorney to bring the instant proceeding to collect her outstanding spousal support.
When asked about the real property in the country of Portugal called La Cortina she testified that she was familiar with the property as it belonged to her father and that she was last inside the property in the year 2010 for about one hour. She testified that after the parties' divorce the locks were changed to the property and she was not provided keys. When asked if she was aware of any repairs done to the property since 2010, she responded that she was not, that she did not choose any of the finishing done for the home but recalled that in 2013 Defendant sent her a bill for 39,000 euros for repairs. She testified that she should not be responsible for any costs associated with the property that she did not agree to expending. When asked if she was aware of expenses related to the house, she replied that she was not.
b. Summary of Testimony of Joseph D. Miano, Esq.
Mr. Miano testified that the current application of Plaintiff includes a request for counsel fees. A copy of his retainer agreement was admitted into evidence as Plaintiff's Exhibit M. With respect to Plaintiff's Exhibit D1, which was admitted into evidence, he testified that the document is a billing of the amount owed by Plaintiff for services rendered in connection with Plaintiff's motion and this hearing, totaling $12,254.50. He testified that his client was billed periodically. He testified further that an additional amount of approximately $5,000.00 in legal services was provided to Plaintiff on a prior motion, which has since been withdrawn. He asked that the Court grant an award for the total amount of the current legal fees, as well as legal fees accrued in the last motion, which was withdrawn, asserting that this is the fourth application based upon the same facts that have been raised each time since 2016 and denied on three prior occasions. He testified that his legal fees are reasonable taking into consideration his experience and the time expended to enforce the terms of the parties' settlement.
c. Summary of Testimony of Defendant
Defendant testified that he resides at [Redacted] (hereinafter the "[Redacted]"). He testified that he was married to Plaintiff and the parties were divorced after the parties reached a settlement. With respect to the settlement, he testified that each party received a parcel of real estate located in this country, and that the property located in the country of Portugal was to be shared by the parties. He confirmed that at the time of the parties' divorce he resided in the [Redacted] Property consisting of four apartments and collected rent from the three tenants with a monthly rent roll of approximately $6,000.00. He testified that at the time of the parties' divorce he received additional income of $700.00 per month from Social Security, $2,330.00 per month from an annuity he received from a personal injury litigation, and $125,000.00 every five years from that same annuity, of which $25,000.00 is payable to Plaintiff.
He testified that he sold the [Redacted] Property in 2016 due to his inability to care for it. When asked about the sale price, he confirmed he sold the property for $900,000.00 and received $500,000.00 in cash and $400,000.00 by retaining a purchase money mortgage. He testified that he has been unable to work since 2012 because he was already sick but then became paralyzed. When asked about his medical conditions he testified he only has one lung, has cancer and is cared for by his current spouse, [Redacted].
With respect to his current financial situation, Defendant testified that his monthly income includes $5,907.00 comprised of $700.00 from Social Security; $2,300.00 from his annuity; and $2,907.00 from a mortgage he holds. When asked if his wife is employed, he initially indicated that she cannot work as she cares for him and when asked when she stopped, he responded that it was not his life and he did not know. When asked if he leased a car last year, he confirmed that he leased a BMW which was the cheapest car he could find. He then testified that he has a second car which is a Mercedes. When asked if he recalls the settlement with Plaintiff requiring his payment of $1,000.00 to Plaintiff, he responded that this was a mistake and he is asking that the Court lower or eliminate this amount because he doesn't have the money to pay it.
With respect to the Portugal property, he testified that the house needed repairs at the time of the parties' divorce and that both parties would pay half of the expenses to complete these repairs. He testified that repairs were completed on the property after the parties' divorce at a cost of $85,000.00 including sheetrock and taping, and use of a handyman. He testified that he asked Plaintiff to provide half of the cost being 39,000 euros, Plaintiff declined to contribute and he did not ask her again. When asked if he changed the locks to the property after the parties' divorce, he confirmed that he did. When asked to describe the costs of the monthly maintenance expenses associated with this property, he testified that the monthly expenses totaled $800.00 and that Plaintiff has not contributed to these costs. When asked about the current value of the house, he provided the following testimony:
"Q All right, on that same document you list La Cortina in Portugal. On this document that you filled out, you put down that the value of La Cortina is $25,000, is that correct?
A I don't recall putting that number, but the truth is that currently it is not worth nothing, nobody wants to buy anything there.
Q That's worth nothing after you put, according to your testimony, $85,000 of improvements into the house, is that correct?
A Yes, that is correct. I am now spending more money than I was anticipating." (See, Trial Transcript 66:13-23)
When asked if he owns and another property in the country of Portugal he provided the following testimony:
"Q Now, is there another property in Portugal that you own?
A Yeah, there are other properties, they were her properties, but half of them are mine.
Q Did you buy out your siblings to purchase your father's home?
A Yes, I didn't find the money to pay that yet, but I will find the money to pay them.
Q And how much money did you agree with your brothers to pay them to buy your father's house in Portugal?
A $50,000.00" (See, Trial Transcript 67:7-17)
d. Summary of Testimony of [Redacted]
She testified that she has been married to Defendant since 2015 and is familiar with his health conditions, including a brain tumor, stage four lung Cancer, prediabetes, and kidney disease. She testified that she takes Defendant to the doctor several times per week and assists with his activities of daily living. When asked about the household finances she testified that she is in charge of these responsibilities and testified that the monthly household income is $6,000.00, with over $5,000.00 in monthly expenses. When asked if Defendant ceased remitting support payments to Plaintiff, she confirmed he did.
LEGAL ANALYSIS
a. Witness Credibility
The Second Department Appellate Division has held that the determination of witness credibility is to be determined by the trier of fact:
"The credibility of the witnesses, the reconciliation of conflicting statements, a determination of which should be accepted and which rejected, the truthfulness and accuracy of the testimony, whether contradictory or not, were issues for the trier of the facts. The memory, motive, mental capacity, accuracy of observation and statement, truthfulness, and other tests of the reliability of witnesses can be passed upon with greater safety by a trial judge who sees and hears the witnesses than by appellate judges who simply read the printed record" (Barnet v. Cannizzaro, 3 A.D.2d 745 [2d Dept 1957] [internal citations omitted]).
It has been recognized that in the context of matrimonial proceedings, "Since the court had the opportunity to view the demeanor of the witnesses at the hearing, it was in the best position to gauge their credibility, and its resolution of credibility issues is entitled to great deference on appeal" (Lieberman v. Lieberman, 21 A.D.3d 1004 [2d Dept 2005] [internal citations omitted]).
Based upon the demeanor and substance of the testimony of Plaintiff, Joseph R. Miano, Esq., and [Redacted], the Court finds all three individuals to be credible witnesses. The Court made this determination based upon an assessment of the character, temperament, and sincerity of these witnesses.
Based upon the demeanor and substance of the testimony of Defendant, the Court finds Defendant not to be a credible witness and while not discrediting Defendant's entire testimony, affords it appropriate weight. The Court made this determination based upon an assessment of the character, temperament, and sincerity of this witness. Specifically, the Court noted the following testimony of Defendant:
1. Value of Portugal Property - When asked about the value of the Portugal Property, Defendant testified that it had no value despite Section IV(B)(4.2) of Defendant's SNW listing the estimated fair market value of this asset at $25,000.00.
2. Additional Real Property - When asked if he owned any other real property in the country of Portugal, Defendant answered in the affirmative noting that he had bought out his siblings in the purchase of his father's home for $50,000.00 and while he had not provided payment yet that he would find the money. Notably, this property is not listed on Defendant's SNW in section IV(B) pertaining to real estate and while Defendant has represented to this Court in sworn submissions that he is experiencing financial hardship, he not only indicated his ability to find $50,000.00 (equating to over four years of spousal support payments to Plaintiff), he is voluntarily assuming all of the additional expenses associated with this additional property.
3. Mercedes - When asked if he owned any vehicles, he responded that he owned a Mercedes. Notably this vehicle was not listed on Defendant's SNW section IV(D) pertaining to vehicles which was blank.
4. Purchase Money Mortgage - Despite the Purchase Money Mortgage being admitted into evidence by Plaintiff, which reflects Defendant and Defendant's spouse as lenders, Defendant's SNW section V(I) does not include reference to this asset, nor is the asset referenced elsewhere in Defendant's SNW.
5. Vacation Home Landscaping - When asked about the expenses associated with the Portugal Property, he confirmed that he is expending monthly amounts for landscaping, however Defendant's SNW section II(g) pertaining to household maintenance is blank and includes no reference to such payments.
6. Vacation Home Cleaning - When asked about the expenses associated with the Portugal Property, he confirmed that he is expending monthly amounts for house cleaning, however Defendant's SNW section II(h) pertaining to household help is blank and includes no reference to such payments.
7. Gross Income - Defendant's SNW section III pertaining to gross income is entirely blank in section (a) which required Defendant to provide "gross (total) income - as should have been or should be reported in the most recent Federal income tax return," and required that Defendant, "Attach most recent W-2, 1099s, K1s and income tax returns." Accordingly, the Court was not provided with the Defendant's total income, nor any corroborating proofs by way of the required attachments.
8. Legal & Expert Fees - Defendant's SNW section VII pertaining to legal & expert fees was left blank with no information provided, nor was any retainer agreement annexed as required.
9. Total Assets and Total Liabilities - Defendant's SNW fails to provide a total value of Defendant's assets on page 16 or a total value of Defendant's liabilities on page 21.
As the applications before the Court and hearing held before the Court centered around Defendant's financial condition, it is without question that Defendant should have complied with the Court's requirements for full and complete financial disclosure with due candor to the Court. This was not done as Defendant's SNW is incomplete with vital information having been omitted and lacking the required annexed documents. The Court is further troubled as Defendant's own testimony at the hearing contradicts his statements made within Defendant's SNW. Defendant's failure to complete the SNW in accordance with the Court's Rules has prevented this Court from fully evaluating Defendant's financial condition and is one of the factors assessed by the Court in making the determination that Defendant is not a credible witness.
b. Non-Compliance With 22 NYCRR § 202.16(k )
Pursuant to 22 NYCRR § 202.16(k) a party filing a motion pertaining to spousal support must attach a statement of net worth executed in the proper form:
"Motions for Alimony, Maintenance, Counsel Fees Pendente Lite and Child support (other than under section 237(c) or 238 of the Domestic Relations Law).
Unless, on application made to the court, the requirements of this subdivision be waived for good cause shown, or unless otherwise expressly provided by any provision of the CPLR or other statute, the following requirements shall govern motions for alimony, maintenance, counsel fees (other than a motion made pursuant to section 237(c) or 238 of the Domestic Relations Law for counsel fees for services rendered by an attorney to secure the enforcement of a previously granted order or decree) or child support or any modification of an award thereof:
(1) Such motion shall be made before or at the preliminary conference, if practicable.
(2) No motion shall be heard unless the moving papers include a statement of net worth in the official form prescribed by subdivision (b) of this section.
(3) No motion for counsel fees and expenses shall be heard unless the moving papers also include the affidavit of the movant's attorney stating the moneys, if any, received on account of such attorney's fee from the movant or any other person on behalf of the movant, the hourly amount charged by the attorney, the amounts paid, or to be paid, to counsel and any experts, and any additional costs, disbursements or expenses, and the moneys such attorney has been promised by, or the agreement made with, the movant or other persons on behalf of the movant, concerning or in payment of the fee. Fees and expenses of experts shall include appraisal, accounting, actuarial, investigative and other fees and expenses to enable a spouse to carry on or defend a matrimonial action or proceeding in the Supreme Court.
(4) The party opposing any motion shall be deemed to have admitted, for the purpose of the motion but not otherwise, such facts set forth in the moving party's statement of net worth as are not controverted in:
(i) a statement of net worth, in the official form prescribed by this section, completed and sworn to by the opposing party, and made a part of the answering papers; or
(ii) other sworn statements or affidavits with respect to any fact which is not feasible to controvert in the opposing party's statement of net worth.
(5) The failure to comply with the provisions of this subdivision shall be good cause, in the discretion of the judge presiding, either:
(i) to draw an inference favorable to the adverse party with respect to any disputed fact or issue affected by such failure; or
(ii) to deny the motion without prejudice to renewal upon compliance with the provisions of this section.
(6) The notice of motion submitted with any motion for or related to interim maintenance or child support shall contain a notation indicating the nature of the motion. Any such motion shall be determined within 30 days after the motion is submitted for decision.
(7) Upon any application for an award of counsel fees or fees and expenses of experts made prior to the conclusion of the trial of the action, the court shall set forth in specific detail, in writing or on the record, the factors it considered and the reasons for its decision."
The failure to annex an executed statement of net worth has been determined to be a basis for denial of an application pertaining to support (Donohue v. Donohue, 258 A.D.2d 498 [2d Dept 1999])(father denied downward modification of child support in part due to his failure to furnish statement of net worth). The failure to include a statement of net worth when seeking certain financial relief described in 22 NYCRR § 202.16(k) is only permissible in such circumstances where financial information is provided by the movant in another form and this information is undisputed by the parties with no further information needed for the court to make an informed ruling on the motion (Antoine L. v. Virginie F., 212 A.D.3d 502 [1st Dept 2023]). In reversing a lower court decision, the Appellate Division Second Department noted that granting relief to a party who failed to furnish a statement of net worth pursuant to 22 NYCRR § 202.16(k) was improper and the proper course would have been for the court to have declined to hear the motion or deny it without prejudice upon compliance with the applicable requirements (Fischer-Holland v. Walker, 12 A.D.3d 671 [2d Dept 2004]).
Pursuant to 22 NYCRR § 202.16(b), "Sworn statements of net worth, except as provided in subdivision (k) of this section, exchanged and filed with the court pursuant to section 236 of the Domestic Relations Law, shall be in substantial compliance with the Statement of Net Worth form contained in appendix A of this Part (see Appendix A, following part 218)." Notably, at the end of the statement of net worth form is the following instruction as to documents which are to be annexed, "REQUIRED DOCUMENTS: Retainer Agreement, Most Recent W-2, 1099s, K1s and Income Tax Returns." The failure to provide a fully executed complete statement of net worth with income tax return has formed a basis for the Court to draw an adverse inference with respect to a party's financial condition (Glass v. Glass, 233 A.D.2d 274 [1st Dept 1996]; Trevino v. Pray, 217 A.D.3d 592 [1st Dept 2023]; O'Connor v. O'Connor, 241 A.D.2d 648 [3rd Dept 1997]).
Here, Defendant's statement of net worth was admitted as Defendant's Exhibit 2 (hereinafter "Defendant's SNW"). Upon review of the document, it does not include a copy of Defendant's most recently filed income tax return, nor any W-2, 1099s, K1s or retainer statement. While the Court acknowledges Defendant's representation made to this Court within Defendant's SNW that he is retired, the Court further notes that Defendant has also represented to the Court that he receives considerable income from multiple sources that likely would have required his filing of an income tax return in 2023. Even if he had not filed a return in that year, he still would have been required to annex his last filed income tax return from whatever year he last filed with schedules, W-2, 1099s, and K1s. Moreover, Defendant's retainer statement/engagement agreement was not annexed which as required by 22 NYCRR § 202.16(c), even if counsel is proceeding on a pro bono basis.
Moreover, to the extent Defendant's SNW was filed, it has omitted multiple vital pieces of information provided by Defendant's own testimony during the hearing which further contradicts other vital pieces of information set forth within the document. Finally, the financial information that is to be provided within a statement of net worth is not available in this action other than within such a filing as much of the financial information is disputed.
Accordingly, due to Defendant having failed to comply with 22 NYCRR § 202.16(k), the Court draws a negative inference as to Defendant's financial condition in that the Court determines the possibility exists that Defendant is concealing additional assets and income.
c. Defendant Requests Pertaining to the Portugal Property
"A stipulation of settlement which is incorporated but not merged into a judgment of divorce is a contract subject to principles of contract construction and interpretation" (Meccio v. Meccio, 76 N.Y.2d 822 [1990]). Where a settlement agreement that is incorporated but not merged into a judgment of divorce is "clear and unambiguous on its face," the parties' intent will be determined "from within the four corners of the instrument" (Id.). "An ambiguity exists only if the contract is susceptible to more than one reasonable interpretation" (Nappy v. Nappy, 40 A.D.3d 825 [2d Dept 2007]). "A court's fundamental objective in interpreting a contract is to determine the parties' intent from the language employed and to fulfill their reasonable expectations" (Landmark Ventures, Inc. v. H5 Tech., Inc., 152 A.D.3d 657 [2d Dept 2017]). An unambiguous agreement "must be enforced according to the plain meaning of its terms" (MHR Capital Partners LP v. Presstek, Inc., 12 N.Y.3d 640 [2009]).
Terms such as "it is the intention of the parties" and "the goal is" to effect certain acts have been determined to be precatory in nature and thus unenforceable (Dragon Heald LLC v. Elkman, 118 A.D.3d 424 [1st Dept 2014]; see also, IDT Corp. v. Tyco Group, S.A.R.L., 13 N.Y.3d 209 [2009]).
Here, the parties' Stipulation of Settlement provides the following regarding possible future renovations to the property, "The parties have agreed that they shall endeavor in the future to make equal contributions to the work and materials that will be needed to complete the residence." It is without question that this language does not impose an affirmative obligation on either party to contribute to any such renovation costs, but is precatory in nature and thus unenforceable. For this reason alone, the request by Defendant for any recovery from Plaintiff arising out of any alleged monies he expended on the Portugal Property would be unwarranted. However, the Court must note that beyond the testimony of Defendant which provided no specific information as to the renovations asserted to have been conducted or itemized payments made for such work and/or materials, no corroborating evidence was presented to the Court by way of invoices, receipts or otherwise. Moreover, as Plaintiff testified that she was not involved in any planning of renovations to the Portugal Property and Defendant failed to refute this, the Court is inclined to determine that to the extent Defendant engaged in renovations of the Portugal Property, he did so unilaterally. This is troubling as Defendant's own testimony includes his belief that the Portugal Property is worthless leaving the Court to conclude that he now seeks Plaintiff to share in his poor investment which he engaged in without Plaintiff's consent.
The second provision of the parties' Settlement applicable to Defendant's request for Plaintiff's contribution to the Portugal Property involves the payment of routine operating costs, "The off the record colloquy indicated that the parties have agreed that they will each bear the expenses associated with their respective occupancies of the premises at such times they may be present." During the hearing Plaintiff testified credibly that she has not visited the Portugal Property since the parties' divorce and aside from Defendant's testimony that Plaintiff removed items from the property on one occasion, he did not testify that she had visited the property nor did he testify as to any expenses alleged to have been incurred pertaining to the property during any of Plaintiff's alleged visits. Nor did Plaintiff provide any testimony or corroborating evidence as to what expenses were incurred and during what periods.
Based upon the foregoing, the Court determines that as Plaintiff's required contribution for routine expenses pertaining to the Portugal Property are limited to those accrued during her visits to the property, and as she has not engaged in any such visits following the execution of the Settlement, she has no such obligations, and Defendant is not entitled to any credits from her in this regard.
d. Defendant's Request For Downward Modification or Termination of Spousal Support
The Appellate Division Second Department has provided guidance as to the manner within which a request for downward modification of spousal support should be evaluated:
"The Family Court may modify any prior order or judgment with respect to maintenance (see Domestic Relations Law § 236[B][9][b]; Matter of Rodriguez v. Mendoza-Gonzalez, 96 A.D.3d 766, 766). "The party seeking the modification of a maintenance award has the burden of establishing 'the existence of the change in circumstances that warrants the modification'" (Noren v. Babus, 144 A.D.3d 762, 764, quoting Rabinovich v. Shevchenko, 120 A.D.3d 786, 786). "Importantly, in determining if there is a substantial change in circumstances to justify a downward modification, the change is measured by comparing the payor's financial circumstances at the time of the motion for downward modification and at the time of the divorce or the time when the order sought to be modified was made" (Matter of Parascandola v. Aviles, 59 A.D.3d 449, 450 [internal quotation marks omitted]; see Taylor v. Taylor, 107 A.D.3d 785, 785)" (Connor v. Connor, 171 A.D.3d 746 [2d Dept 2019]).
Here, the Court determines that no downward modification or termination of Defendant's spousal support obligation to Plaintiff is warranted as no substantial change in circumstances exists. Upon examination of Defendant's finances, they have largely remained the same since the parties' divorce, with the exception of decreases in monthly income resulting solely from Defendant's decisions.
Turning first to Defendant's residence, it is undisputed that Defendant resided in the [Redacted] Property at the time of the parties' divorce and by his own testimony, Defendant received a monthly income from tenant occupancy totaling $6,000.00. Defendant then sold the [Redacted] Property testifying that he could no longer engage in the upkeep but having provided the Court with no corroborating proof of this claim, or in the alternative, that he could not retain a property manager to assist him. Defendant confirmed his receipt of $900,000.00 in sale proceeds in the form of $500,000.00 in cash which he used to purchase his current residence, and $400,000.00 in the form of the Purchase Money Mortgage. Due to this transaction and the subsequent purchase of his new home, Plaintiff not only deceased his monthly income through the loss of rental income but he further ensured that all of the net proceeds would be illiquid. Defendant could have waited for a purchaser who did not require a purchase money mortgage providing him with additional liquid net proceeds and/or moved into a rental apartment or less expensive home than the one he currently resides in which he testified as having an approximate fair market value of $700,000.00. However, Defendant made decisions which benefitted him, without taking into consideration how those decisions would impact his obligations to Plaintiff, which is unfortunately a recurring theme in Defendant's conduct as observed by this Court.
Turning next to Defendant's income, upon review of the submissions made to this Court and testimony received, at the time of the parties' divorce Defendant had monthly income of $10,758.66 comprised of: (1) $6,000.00 rental income from the [Redacted] Property; (2) $2,300.00 monthly structured settlement payments from the Annuity; (3) $1,666.66 in pro-rated monthly structured settlement payments from the Annuity; and (4) $792.00 in Social Security payments. At the time of the hearing Defendant had a monthly income of $7,665.66 comprised of: (1) $2,907.00 payments from the Purchase Money Mortgage; (2) $2,300.00 monthly structured settlement payments from the Annuity; (3) $1,666.66 in pro-rated monthly structured settlement payments from the Annuity; and (4) $792.00 in Social Security payments. While Defendant claims not to have the funds to pay Plaintiff spousal support, his current wife testifies that the household expenses leave a $1,000.00 surplus and Defendant's testimony confirms that his monthly payments toward the upkeep of the Portugal Property are $800.00.
Accordingly, the Court finds it troubling that Defendant asserts his financial hardship in providing a $1,000.00 monthly spousal support payment to Plaintiff, while having no problems providing payment of $800.00 in monthly expenses towards the Portugal Property, which is essentially a vacation home. This concern is compounded by Defendant's testimony that he has purchased his siblings' interest in his father's home in Portugal for $50,000.00 and will locate the funds to effectuate this purchase. The Court is at a loss as to how Defendant will find this amount of money, equating to over four years of spousal support payments to Plaintiff, while incurring the additional carrying costs for this third property, if he is claiming financial hardship in that he is unable to meet his current expenses without a downward modification or termination of his spousal support. Again, it appears that Defendant is placing his own interests before that of Plaintiff. This Court cannot comprehend any situation where a downward modification or termination of spousal support on the basis of hardship would be appropriate to provide the payor spouse additional funds to fund a vacation home, purchase and pay the carrying costs on a third property, and lease a luxury vehicle.
Based upon the foregoing, this Court determines that no downward modification or termination of spousal support payments from Defendant to Plaintiff is warranted. The Court further determines Defendant to have spousal support arrears due to Plaintiff in the amount of $19,000.00 calculated in the following manner: (1) 10 months of arrears in 2023 and (2) 9 months of arrears in 2024. Accordingly, Plaintiff is awarded from Defendant as and for spousal support arrears $19,000.00, which shall be paid from Defendant to Plaintiff by September 30, 2024. If full payment is not made by that date, Plaintiff shall have leave of the Court to file with notice of settlement on Defendant a proposed money judgment for the then amount due minus payments made.
The Court will note that in addition to the past arrears due at the time of hearing, by Defendant's own admission he had no intention of providing any additional spousal support payments to Plaintiff causing the Court to calculate the total spousal support arrears to include all months up to the date of this Decision as if Defendant made no additional support payments to Plaintiff.
e. Plaintiff's Request to Hold Defendant in Contempt
"A motion to punish a party for civil contempt is addressed to the sound discretion of the court, and the movant bears the burden of proving contempt by clear and convincing evidence." (Matter of Hughes v. Kameva, 96 A.D.3d 845, 846 [2d Dept 2012]; see Cassarino v. Cassarino, 149 A.D.3d 689, 690 [2d Dept 2017]). The movant must establish that: (1) a lawful order of the court, clearly expressing an unequivocal mandate, was in effect, (2) the order was disobeyed and the party disobeying the order had knowledge of its terms, and (3) the movant was prejudiced by the offending conduct (See Judiciary Law § 753[A][3]; El-Dehdan v. El-Dehdan, 26 N.Y.3d 19, 29 [2015]). "Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemnor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order" (Toranzo v. Toranzo, 185 A.D.3d 621, 623 [2d Dept 2020]). The Appellate Division clarified that "[i]t is not necessary that the disobedience be deliberate or willful; rather, the mere act of disobedience, regardless of its motive, is sufficient if such disobedience defeats, impairs, impedes, or prejudices the rights or remedies of a party" (See Cutroneo v. Cutroneo, 140 A.D.3d 1006 [2d Dept 2016] quoting Gomes v. Gomes, 106 A.D.3d 868 [2d Dept 2013]).
Here, the Stipulation of Settlement was so ordered and constituted a lawful order of the court, clearly expressing an unequivocal mandate. The Judgment of Divorce, which incorporated by reference the terms of the Stipulation of Settlement, but did not merge the Stipulation of Settlement, also constituted a lawful order of the Court. Both the Stipulation of Settlement and Judgment of Divorce were in effect at all times following the parties' divorce and remain in effect as of the date of this decision. Both expressed an unequivocal mandate for Defendant to provide Plaintiff with a monthly spousal support payment of $1,000.00. The Court determines that the order was disobeyed by Defendant through his failure to provide monthly spousal support payments to Plaintiff and Defendant had knowledge of the terms of the Stipulation of Settlement and Judgment of Divorce. The Court further finds that Plaintiff was prejudiced by Defendant's conduct. Upon review of the submissions made to this Court, along with the testimony and evidence received at the hearing, this Court further determines that Defendant has failed to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order.
Based upon the foregoing, the Defendant is determined to be in contempt of Court.
f. Plaintiff's Request for Sequestration of Plaintiff's Property
New York State Domestic Relations Law (hereinafter "DRL") § 243 provides the following:
"Where a judgment rendered or an order made in an action in this state for divorce, separation or annulment, or for a declaration of nullity of a void marriage, or a judgment rendered in another state for divorce upon any of the grounds provided in section one hundred seventy of this chapter, or for separation or separate support and maintenance for any of the causes specified in section two hundred, or for relief, however designated, granted upon grounds which in this state would be grounds for annulment of marriage or for a declaration of nullity of a void marriage, upon which an action has been brought in this state and judgment rendered therein, requires a spouse to provide for the education or maintenance of any of the children of a marriage, or for the support of his or her spouse, the court, in its discretion, also may direct the spouse from whom maintenance or support is sought to give reasonable security, in such a manner and within such a time as it thinks proper, for the payment, from time to time, of the sums of money required for that purpose. If he or she fails to give the security, or to make any payment required by the terms of such a judgment or order, whether or not security has been given therefor, or to pay any sum of money for the support and maintenance of the children or the support and maintenance of the spouse during the pendency of the action, or for counsel fees and expenses which he or she is required to pay by a judgment or order, the court may cause his or her personal property and the rents and profits of his or her real property to be sequestered, and may appoint a receiver thereof. The rents and profits and other property so sequestered may be applied, from time to time, under the direction of the court, to the payment of any of the sums of money specified in this section, as justice requires; and if the same shall be insufficient to pay the sums of money required, the court, on application of the receiver, may direct the mortgage or sale of such real property by the receiver, under such terms and conditions as it may prescribe, sufficient to pay such sums."
Affirming a decision requiring a spouse to provide security for future spousal support payments the Appellate Division Second Department noted, "In view of the plaintiff former husband's history of failing to make timely maintenance payments without the defendant former wife having to resort to litigation, the Supreme Court providently exercised its discretion in directing him to provide reasonable security to guarantee the future payment of maintenance to the defendant former wife (See Domestic Relations Law § 243; Klepp v. Klepp, 35 A.D.3d 386, 826 N.Y.S.2d 629; Dunbar v. Dunbar, 309 A.D.2d 780, 765 N.Y.S.2d 638; Adler v. Adler, 203 A.D.2d 81, 610 N.Y.S.2d 22)." (Brincherhoff v. Brinkerhoff, 53 A.D.3d 592 [2d Dept 2008]).
The use of sequestration as an enforcement device is an appropriate remedy when a payor spouse has engaged in a pattern of repeatedly failing to comply with Court imposed support obligations (See, Rose v. Rose, A.D.2d 475 [2d Dept 1988]) ("Wife was entitled to be appointed receiver and sequestrator of 50% of husband's equitable interest in proceeds of sale of former marital residence, in light of husband's repeated failure to satisfy his child support obligations and insufficiency of wage deduction order in effect; child could best be protected by sequestering 50% of husband's share of proceeds of sale,"; see also, Berger-Carniol v. Carniol, 273 A.D.2d 427 [2d Dept 2000]) ("Sequestration of husband's assets to secure future payment of child support and maintenance was appropriate, where husband was found to be in contempt of pendente lite support.")
When utilizing sequestration as an enforcement mechanism, many types of property have been sequestered as long as that property is known to be owned by the party responsible for payment of funds due (Golub v. Golub, 73 A.D.2d 591 [2d Dept 1979]). Such property has included vested stock and pension plan rights (Katz v. Katz, 75 A.D.2d 839 [2d Dept 1980), appeal denied, 51 N.Y.2d 702 (1980); future earnings provided in a stockholder's agreement (Neidorf v. Neidorf, 43 Misc.2d 710 (Sup. Ct. Nassau County 1964); cause of action (Albert v. Albert, 199 N.Y.S.2d 766 [Sup. Ct. Nassau County 1960); contract rights (Marks v. Marks, 283 A.D. 825 [2d Dept 1954); insurance proceeds (Cross v. Cross, 22 A.D.2d 1013 [4th Dept. 1964]); and rents and profits of real property (Schwartz v. Schwartz, 200 Misc. 99 (Sup. Ct. Kings County 1951).
Here, the procedural history of this action confirms that Defendant has engaged in a pattern and practice of failing to provide payment of his spousal support obligations to Plaintiff compelling her to file applications to seek compliance. Unfortunately, this recalcitrant conduct of Defendant dates back to the underlying matrimonial action wherein Defendant's failure to provide payment of interim spousal support to Plaintiff resulted in Plaintiff's filing of a motion seeking to hold Defendant in contempt, which ultimately was resolved within the parties' Settlement. This conduct has continued to date and is coupled with Defendant's applications seeking termination or downward modification of his spousal support obligations, which border on frivolous as his claims of financial hardship are refuted by his own testimony.
Upon review of the known assets of Defendant, as to which assets may be subject to sequestration:
1. Mercedes - While this vehicle is titled in the name of Defendant, it is located in the country of Portugal, making sequestration of this asset unfeasible.
2. [Redacted] Property - This property is the primary residence of Defendant and his current spouse. Accordingly, the Court determines that it would be best to sequester other available assets before this asset so as not to displace Defendant and his spouse.
3. Portugal Property - The parties' ownership interest in this property is unclear as the Stipulation of Settlement did not clearly articulate how the Portugal Property was then held in title, nor how it would be distributed between the parties, but did indicate that it would be transferred to the parties' grandchildren in equal shares by deed transfer or testamentary provisions upon the death of the parties. As this property is situated in the country of Portugal, it remains unclear how the property is now held in title and whether or not any encumbrances exist against the property. The value of the property is unknown to this Court and the parties previously agreed to transfer the property to their grandchildren. As such, the Court determines that the property is not an appropriate asset for sequestration.
4. Second Portugal Property - While Defendant testified that he is the owner of a second parcel of real property in the country of Portugal formerly owned by his father, he further testified that he had not paid his siblings for his buy out of their interest in the property. Further, the Court has no information pertaining to the address of the property, the manner within which this property is held in deed, if any encumbrances exist against the property, or the value of the property. Accordingly, the Court determines that the property is not an appropriate asset for sequestration.
5. Annuity - The evidence and testimony provided to the Court lead the Court to determine that the Annuity is an asset solely of the Defendant which has not been transferred or encumbered in any way, making it an appropriate asset for sequestration.
6. Purchase Money Mortgage - The evidence and testimony provided to the Court lead the Court to determine that the Defendant is owner of no less than half of the interest in the Purchase Money Mortgage, making Defendant's fifty percent interest in the Purchase Money Mortgage an appropriate asset for sequestration.
Accordingly, the Court determines it appropriate to grant Plaintiff's request for a sequestration of Defendant's property including the Annuity and Defendant's fifty percent interest in the Purchase Money Mortgage from which all funds received therefrom may be collected by a receiver to be appointed by this Court herein the fees for which shall be paid by Defendant and which will be distributed to Plaintiff for the payment of funds due to Plaintiff under the supervision of the Court. Moreover, the Court determines it appropriate for the Receiver to continue to collect funds received from these assets of Defendant until such time as Plaintiff is paid all amounts then due Plaintiff from Defendant until such time as the receiver has collected an additional sum which shall constitute security for payments due from Defendant to Plaintiff in the amount of $36,000.00 calculated by the Court to include three years of spousal support payments due from Defendant to Plaintiff which the Court determines to be reasonable based upon the age and health of both parties.
g. Plaintiff's Request for An Award of Attorneys' Fees
The Appellate Division Second Department has noted how a trial court should determine if an award of attorneys' fees is warranted in a matrimonial action:
"In a matrimonial action, an award of attorney's fees is a matter committed to the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case (see Prochilo v. Prochilo, 165 A.D.3d 1304; Patete v Rodriguez, 109 A.D.3d 595, 599). The purpose of Domestic Relations Law § 237(a) is to redress the economic disparity between the monied spouse and the nonmonied spouse by ensuring that the latter will be able to litigate the action on equal footing with the former (see Chesner v. Chesner, 95 A.D.3d 1252, 1253; Finnan v. Finnan, 95 A.D.3d 821; Prichep v. Prichep, 52 A.D.3d 61, 64-65).
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In determining whether to award attorney's fees, the court should review the financial circumstances of both parties, together with all of the other circumstances of the case, including, inter alia, the relative merit of the parties' positions, and whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation (see Prochilo v. Prochilo, 165 A.D.3d 1304; Chesner v. Chesner, 95 A.D.3d 1252; Prichep v. Prichep, 52 A.D.3d at 64-65)." (Brockner v. Brockner, 174 A.D.3d 567, 568 [2d Dept 2019]).
When seeking an award of attorneys' fees, parties are required to submit itemized billing statements as proof of the attorneys' fees incurred, both to demonstrate substantial compliance with 22 NYCRR 1400.2 and 1400.3 and to establish the "extent and value of [the] services" rendered (Yakobowitz v. Yakobowicz, 217 A.D.3d 733 [2d Dept 2023] [internal citations omitted]).
Here, Plaintiff's counsel's retainer agreement was admitted into evidence as Plaintiff's Exhibit M. Upon review of the document, it was executed by both Plaintiff's counsel and Plaintiff; is dated October 30, 2023; provides an hourly rate of $550.00 for Joseph R. Miano; and an hourly rate of $295.00 for [Redacted], Esq. Plaintiff's counsel further submitted two billing statements from his firm for services rendered to Plaintiff in connection with this litigation. The first was admitted into evidence as Plaintiff's Exhibit L for services rendered for from January 8, 2024 through April 11, 2024, totaling $8,219.50. The second was admitted into evidence as Exhibit D1 for services rendered from July 3, 2024 through August 5, 2024, totaling $4,125.00. The cumulative total of both billing statements is $12,254.50.
Based upon the Court's review the financial circumstances of both parties, together with all of the other circumstances of the case, including, inter alia, the relative merit of the parties' positions, and whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation, the Court determines it appropriate to award Plaintiff $12,254.50 from Defendant for attorneys' fees and costs incurred in connection with the instant motions and hearing.
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Based upon the foregoing, it is hereby
ORDERED that Defendant's request for a termination or downward modification of Defendant's spousal support obligations payable to Plaintiff is denied; and it is further
ORDERED that Defendant's request for an award from Plaintiff arising out of Defendant's payment of funds for the renovation and/or carrying costs associated with the Portugal Property is denied; and it is further
ORDERED that the Defendant is determined to be in contempt of Court due to his failure to comply with his spousal support obligations to Plaintiff as required pursuant to the parties' Stipulation of Settlement dated October 15, 2009, and Judgment of Divorce dated January 22, 2010; and it is further
ORDERED that Plaintiff is awarded from Defendant as and for spousal support arrears $19,000.00, as and for spousal support arrears through September 1, 2024, which shall be paid from Defendant to Plaintiff by September 30, 2024, and if full payment is not made by that date, Plaintiff shall have leave of the Court to file with notice of settlement on Defendant a proposed money judgment for the then amount due minus payments made; and it is further
ORDERED that unless Defendant makes full payment to Plaintiff of all sums due and owing to Plaintiff pursuant to the Decision by September 30, 2024, so that such payment is received in-hand by Plaintiff's counsel in the form of a certified bank check, Defendant's property interest in the Annuity and Purchase Money Mortgage shall be sequestered with all funds received therefrom to be collected by a receiver to be appointed by this Court herein to be distributed to Plaintiff for the payment of funds due Plaintiff from Defendant under the supervision of the Court; and it is further
ORDERED that: (1) [Redacted], is hereby appointed to act as court-appointed Receiver whose appointment shall remain in effect until such time as he shall submit to this Court an Affirmation of Services setting forth the services completed as Receiver, that all services have been completed, and requesting that this Court approve fees to the Receiver in an amount set forth within the Affirmation and annexed supporting billing statements; (2) Providing a scope of authority of the Receiver to include the following: to collect funds received from the Annuity and the Purchase Money Mortgage (limited to half) until such time as Plaintiff is paid all amounts then due Plaintiff from Defendant and the receiver has collected an additional sum which shall constitute security for payments due from Defendant to Plaintiff in the amount of $36,000.00; and (3) Authorizing the Receiver to file, on notice of settlement to the parties and their counsel, proposed Orders enlarging Receiver's scope of authority to address new issues that may arise following this Decision and Order; and it is further
ORDERED that Plaintiff is awarded from Defendant $12,254.50 as and for counsel fees and costs incurred in connection with this action which shall be paid from Defendant to Plaintiff by September 30, 2024, and if full payment is not made by that date, Plaintiff shall have leave of the Court to file with notice of settlement on Defendant a proposed money judgment for the then amount due minus payments made; and it is further
ORDERED that a Status Conference shall be held on October 25, 2024, at 2:00 p.m., wherein all parties, counsel and the Receiver shall appear in person; and it is further
ORDERED that Plaintiff shall serve this Decision and Order with Notice of Entry on Defendant within 20 days of the date of this Decision and Order, and shall file an Affidavit of Service within 20 days of the date of this Decision and Order; and it is further
ORDERED that to the extent any relief sought has not been granted, it is expressly denied.
The foregoing constitutes the Decision and Order of the Court.