Opinion
155723
07-13-2016
Jon P. RICHEAL, Plaintiff, v. Angelia RICHEAL, Defendant.
John D. Wieser, Esq., Attorney for Plaintiff, 2350 N. Forest Road, Suite 24B, Getzville, New York 14068 Gina Marie DePrima, Esq., Attorney for Defendant, 392 Evans Street, Williamsville, New York 14221
John D. Wieser, Esq., Attorney for Plaintiff, 2350 N. Forest Road, Suite 24B, Getzville, New York 14068
Gina Marie DePrima, Esq., Attorney for Defendant, 392 Evans Street, Williamsville, New York 14221
Ralph A. Boniello III, J.
The action for divorce was commenced by the filing of a Summons with Verified Complaint in the Niagara County Clerk's Office on April 22, 2015. The grounds for divorce, that the marriage is irretrievably broken and has been for more than six months, is not being contested. However, despite extensive negotiations the parties were unable to resolve the following issues: spousal maintenance, equitable distribution of the marital assets including retirement accounts and personal property including vehicles as well as the division of marital debt. A hearing took place on March 29, 2016 with final submissions received by the Court on or before May 2, 2016.
After duly considering the testimony of the Plaintiff, Defendant and her mother along with reviewing the documentary evidence and submissions by both parties, this Court makes the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. The Plaintiff, Jon P. Richeal, and the Defendant, Angelia Richeal, were married in North Tonawanda, New York on October 29, 2011.
2. This is a marriage of relatively short duration of less than four (4) years but the parties did live together and jointly paid for all living expenses for four and one-half (4.5) years prior to the marriage.
3. Both parties are residents of the State of New York and have been for a continuous period of more than one (1) year immediately preceding the commencement of this action.
4. The action for divorce was commenced on April 22, 2015.
5. The parties have been continuously living separate and apart since March 2015.
6. There are no children born of this marriage.
7. There is no other action pending between the parties for divorce, separation or annulment.
8. Neither party to this action is a member of the military forces of the United States or any other nation, nor was either of them so employed at the time this action was commenced.
9. The Defendant advised the Court that she did not contest the grounds for divorce and the Plaintiff re-affirmed the allegations contained in his Verified Complaint which will be sufficient to grant a divorce on the basis of an irretrievable breakdown of the marriage ( Domestic Relations Law § 170 [7 ] ).
10. The Plaintiff further stated or will state in papers that he will take all steps solely within his power to remove any barriers to the remarriage of the Defendant.
11. A Temporary Order, by stipulation, was granted on July 27, 2015, by the Hon. Mark A. Montour, J.S.C., where it was agreed, in part, that the Defendant shall have sole and exclusive use and occupancy of the marital residence and that the Plaintiff would continue to pay the mortgage and all carrying charges of the marital residence including all cable and utilities which were to be placed in his name (see , Plaintiff's Exhibit 6).
12. However, the Defendant established that she paid at least $ 404.03 for various carrying charges for which she is entitled to be reimbursed by the Plaintiff.
13. The Plaintiff, Jon P. Richeal, is forty-three (43) years old with a high school education and in good health.
14. At the time of the hearing, the Plaintiff was employed full-time as a warehouse manager of Irr Supply Centers where he earned approximately $ 50,000.00 for year 2015 plus health insurance as well as retirement benefits (see , Defendant's Exhibit F).
15. The Plaintiff has vested rights in an Employee Stock Ownership Plan through Irr Supply Centers valued at approximately $ 56,000.00 as well as 401k Profit Sharing Retirement Plan which the Defendant seeks her equitable share (see , Defendant's Exhibit F).
16. The Plaintiff testified to paying child support for three (3) children of a previous marriage in the amount of $ 150.00 every two weeks.
17. The Defendant, Angelia Richeal, is thirty-six (36) years old who was found to be 100% disabled by Dr. Narhari M. Panchal (letter submitted on stipulation by counsel in lieu of testimony), due to complications from necrotic pancreatitis. The length of her disability is unknown.
18. Prior to becoming disabled, the Defendant had limited employment history working part-time as a hair dresser.
19. The Defendant receives Social Security Disability benefits in the sum of $ 549.90 per month (see , Plaintiff's Exhibit 2).
20. The Defendant also receives child support for two (2) children of a previous marriage in the amount of $ 700.00 per month.
21. The Defendant testified to her extensive medical problems that have required her to undergo twenty-eight (28) surgeries where she was hospitalized for period of six (6) months, during which, she was in a coma for large part of the time.
22. Currently, the Defendant cannot perform her duties as a hair dresser or any other type of work. It is undisputed that she is totally disabled and will likely have to undergo future surgeries.
23. Further, the Defendant must wear an ostomy bag and requires assistance with her daily personal needs including getting dressed, taking a shower and performing all other household activities.
24. The Defendant testified that her average monthly medical expenses/prescriptions to be $ 492.00 with outstanding medical bills over $ 11,000.00 and expects post divorce medical insurance to cost approximately $ 400.00 per month (see , Defendant's Exhibits C & D).
25. The Defendant is requesting non-durational spousal support of $ 11,488.20 annually or $ 220.93 per week by way of income deduction Order based on the disparity in income between the parties and the Defendant's total disability.
26. In support of her position that she is unable to work, the Defendant testified to her extensive medical problems and submitted evidence including certified medical records, a social security disability statement, statements/receipts for medical and prescription expenses and a letter from Dr. Panchal (see , Defendant's Exhibits C, D & E).
27. The parties agree that the former marital residence located at 1645 Eddy Drive, North Tonawanda, New York was owned by the Plaintiff (and his mother) prior to the marriage with the mortgage solely in the name of his mother (see , Plaintiff's Exhibit 4).
28. Nonetheless, the Defendant shall be entitled to one half of the pay down of the mortgage from the date of the marriage to the date of the commencement of the action.
29. It was undisputed that the Defendant received a $ 14,000.00 gift from her grandfather while she was in the hospital. The money was deposited upon the Defendant's discharge from the hospital but while she was heavily medicated into a joint bank account.
30. The Defendant testified that she had no other bank account at the time of the deposit.
31. Further, the Defendant's mother testified that the grandfather gave gifts to his Grandchildren noting "inheritance" in the memo section of the check and further claimed that the Plaintiff acknowledged to her that the monies were the Defendant's sole property.
32. The Defendant was readmitted into the hospital three days after the money was deposited and established that the Plaintiff spent some of the monies, without her knowledge or consent, on his children from a prior marriage.
33. Significantly, the Plaintiff voluntarily returned $ 5,000.00 to the Defendant upon closing the joint bank account leaving $ 9,000.00 unaccounted for and which the Defendant is seeking reimbursement.
34. The parties have closed the joint account and divided the monies. The remaining bank accounts opened after the date of commencement and in separate names shall remain each parties' sole and separate property.
35. Each party has his/her own automobile which each shall retain and execute any documentation necessary to effectuate transfer of title to such party.
36. The parties agreed that the Defendant shall receive the kitchen appliances and washer and dryer when she vacates the marital residence.
37. Any other items of personal property not already divided between the parties shall be sold with proceeds divided equally unless the parties otherwise agree.
38. The parties raised $ 14,000.00 from a charity benefit to help assist in paying the medical bills but the monies have been exhausted.
39. The parties indicated there were no outstanding loans or credit card accounts on their 236b Financial Affidavits but there are unpaid medical bills with a balance of $ 11,291.96 owed which is a marital debt (see , Defendant's Exhibit C).
40. The Defendant is seeking a contribution from the Plaintiff toward her attorney's fees in the amount of $ 6,640.00.
CONCLUSIONS OF LAW
Grounds
The Defendant advised the Court that she did not contest the grounds for divorce and the Plaintiff re-affirmed the allegations contained in his Verified Complaint. As a result, the Court grants a judgment of divorce on the basis of an irretrievable breakdown of the marriage ( Domestic Relations Law § 170 [7 ] ). The Plaintiff further stated or will state in papers that he will take all steps solely within his power to remove any barriers to the remarriage of the Defendant.
Maintenance
It is well settled that the purpose of maintenance is to assist a spouse in becoming economically independent and thus, should continue only as long as required to render the recipient spouse self-supporting ( O'Brien v. O'Brien , 66 NY2d 576 [1985] ; Schmitt v. Schmitt , 107 AD3d 1529 [4th Dept 2013] ; Zufall v. Zufall , 109 AD3d 1135 [4th Dept 2013] ). A court must consider both parties' financial circumstances including their standard of living during the marriage and the payee spouse's reasonable needs with the payor spouse's ability to pay in the context of the statutory factors, and then, set a fair and equitable maintenance award accordingly (see , Domestic Relations Law § 236 [B] [6] [a] [1] - [20]; Myers v. Myers , 118 AD3d 1315 [4th Dept 2014] ). The factors relevant to a consideration of an award of maintenance in this case are the income and property of the parties, the duration of the marriage, the age and health of the parties, the present and future earning capabilities of the parties, the ability of the Defendant to become self-supporting, the contributions and services of the Defendant as a spouse as well as the standard of living that the parties enjoyed during the marriage.
The record reveals that there is a disparity in income between the Plaintiff and Defendant. Both parties testified regarding such statutory factors as work history, health, standard of living and general financial situation. The parties enjoyed a middle class standard of living during the course of the marriage with the Plaintiff, Jon P. Richeal, earning approximately $ 50,000.00 per year working as a warehouse manager for Irr Supply Centers. The Defendant, Angelia Richeal, is thirty-six (36) years old with her limited employment history working part-time as a hair dresser and poor health, it is highly unlikely that she will be able to attain a comfortable level of self-support, let alone commensurate with her pre-divorce standard of living.
It is undisputed that during the marriage the Defendant became seriously ill and at this time is totally disabled due to complications from necrotic pancreatitis. By stipulation, a letter was received by the Court from Dr. Narhari M. Panchal who opined that "she is 100% disabled and future plan for surgery of length of disability is unknown; and unable to work". Further, the Defendant testified to her extensive medical problems which required her to undergo twenty-eight (28) surgeries resulting in her being hospitalized for period of over six (6) months, during which, she was in a coma for large part of the time. Such testimony was supported by documentary evidence including certified medical records, a social security disability statement, statements/receipts for medical and prescription expenses and the letter from Dr. Panchal.
At this time, the Defendant cannot perform her duties as a hair dresser or any other type of work. In fact, she must wear an ostomy bag and requires assistance with her daily personal needs including getting dressed, taking a shower and performing all other activities of daily living. The Defendant also testified that she will likely have to undergo future surgeries. Significantly, the Defendant's only sources of income include Social Security Disability benefits in the amount of $ 549.90 per month and child support for two (2) children of a previous marriage in the amount of $ 700.00 per month. Further, the Defendant testified that her average monthly medical expenses/prescriptions to be $ 492.00 with outstanding medical bills over $ 11,000.00 and expects post divorce medical insurance to cost approximately $ 400.00 per month. In addition, the Defendant stated that upon vacating the marital residence that suitable housing would cost approximately $ 1,000.00 per month. As a result, the Defendant is requesting non-durational spousal support of $ 11,488.20 annually or $ 220.93 per week by way of income deduction Order based on the disparity in income between the parties and her total disability.
In contrast, the Plaintiff, Jon P. Richeal, is forty-three (43) years old and in good health. At the time of the hearing, the Plaintiff was employed full-time as a warehouse manager of Irr Supply Centers where he earned approximately $ 50,000.00 for year 2015 plus health insurance as well as retirement benefits including an Employee Stock Ownership Plan and 401k Profit Sharing Retirement Plan. While the Plaintiff testified to paying child support for three (3) children of a previous marriage in the amount of $ 150.00 every two weeks, the Plaintiff is clearly in a superior financial position with his present and future earning capacity working full time as a manager along with receiving various job related benefits.
Based on the disparity in income between the parties, the Defendant's age and extremely poor health supported by medical evidence, the respective present or future earning capacity of the parties, the general inability of the Defendant to become self-supporting due to her total disability and lack of overall education and training, the availability and cost of medical insurance for the Defendant, the contribution made by the Defendant during the marriage as a spouse and the standard of living the parties enjoyed during the marriage, this Court orders a permanent award of $ 220.93 per week in maintenance which shall terminate either upon the death of either party, Defendant's remarriage; Defendant's eligibility for full Social Security benefits at the age of 67, or until modification pursuant to Domestic Relations Law § 236 (B) (9) or Domestic Relations Law § 248, whichever first occurs (see , Summer v. Summer , 85 NY2d 1014 [1995] ; Myers v. Myers , 118 AD3d 1315 [4th Dept 2014] ; Knope v. Knope , 103 AD3d 1256 [4th Dept 2013] ; Rabinovich v. Shevchenko , 93 AD3d 774 [2nd Dept 2012] ; Northway v. Northway , 70 AD3d 1347 [4th Dept 2010] ; Matter of Talty v. Talty , 75 AD3d 648 [2nd Dept 2010] ; Grasso v. Grasso , 47 AD3d 762 [2nd Dept 2008] ).
The amount and duration are required in light of the nature and extent of the Defendant's total disability and ongoing medical problems. It is unrealistic to believe that the Defendant will be able to achieve a level of financial independence which would eliminate her need to rely on the Plaintiff's support. It also reflects a balancing of the Defendant's needs with the Plaintiff's ability to pay (see , Cameron v. Cameron , 238 AD2d 925 [4th Dept 1997] ). The commencement of maintenance shall begin immediately. The Plaintiff is further directed to obtain a life insurance policy or policies to secure part of his maintenance obligation in the amount of $ 150,000.00, naming the Defendant as the sole beneficiary (see , Domestic Relations Law § 236 [B] [8] [a]; Martin v. Martin , 115 AD3d 1315 [4th Dept 2014] ). Said obligation to provide life insurance shall continue as long as the Plaintiff is obligated to pay maintenance.
Equitable Distribution
It is well established that marriage is viewed as an economic partnership in which spouses share in the profits and assets of the partnership as well as in the losses and liabilities incurred in the pursuit of marital wealth ( Gelb v. Brown , 163 AD2d 189 [2nd Dept 1990] ). In distributing marital assets, the Court has great flexibility and discretion to fashion an equitable award ( Burrows v. Burrows , 270 AD2d 871 [4th Dept 2000] ). While the law is clear that equitable distribution does not necessarily mean equal, where a court finds no factors that justify an unequal distributive award, those assets should be divided equally ( Baudisch v. Baudisch , 233 AD2d 834 [4th Dept 1996] ).
In determining an equitable disposition of property, the Court shall consider and set forth the statutory factors (see , Domestic Relations Law § 236 [B] [5] [d] & [g]; Hartnett v. Hartnett , 281 AD2d 900 [4th Dept 2001] ). The factors relevant to an equitable distributive award in this case are the income and property of each party, the duration of the marriage and the age and health of both parties, the loss of health insurance benefits upon the dissolution of the marriage, the award of maintenance, any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, and to the career or career potential of the other party, the liquid or non-liquid character of all marital property, the probable future financial circumstances of each party and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party. After taking into consideration the above stated factors and circumstances surrounding this case the Court finds that an equal division of the marital property is appropriate. However, there is no requirement that the distribution of each item of marital property recited herein shall be allocated on an equal basis ( Arvantides v. Arvantides , 64 NY2d 1033 [1985] ; Niland v. Niland , 291 AD2d 876 [4th Dept 2002] ).
Marital Residence
The parties agree that the former marital residence located at 1645 Eddy Drive, North Tonawanda, New York was owned by the Plaintiff (and his mother) prior to the marriage with the mortgage solely in the name of his mother. As a result, the Plaintiff shall retain the former marital residence as his sole and separate property. However, the Defendant shall be entitled to one half of the pay down of the mortgage on the property from the date of the marriage to the date of the commencement of the action. The Court further directs that the Defendant shall vacate the former marital residence within sixty (60) days of the date of this Decision.
Carry Charges of Marital Residence
A Temporary Order, by stipulation, was granted on July 27, 2015, by the Hon. Mark A. Montour, J.S.C., where it was agreed, in part, that the Defendant shall have sole and exclusive use and occupancy of the marital residence and that the Plaintiff would continue to pay the mortgage and all carrying charges of the marital residence including all cable and utilities which were to be placed in his name. However, the Defendant established that she paid at least $ 404.03 for various carrying charges. The Court directs that the Defendant shall be reimbursed for all expenses not paid by the Plaintiff pursuant to the above referenced Order.
Bank and Retirement Accounts
The parties have closed the joint account and divided the monies. The Plaintiff has vested rights in an Employee Stock Ownership Plan through Irr Supply Centers valued at approximately $ 56,000.00 as well as 401k Profit Sharing Retirement Plan. The Court directs that the monies in the above accounts as well as any other accounts that existed at the date of the commencement of this action that were not disclosed during the hearing shall be divided equally or utilized has a partial or full offset in effectuating the overall distribution of marital property as decided herein.
The Plaintiff shall be responsible for all costs and fees, including administrative fund fees, associated with effectuating the above distribution by Qualified Domestic Relations Order. Further, the remaining bank accounts opened after the date of commencement and in separate names shall remain each parties' sole and separate property.
Personal Property, Automobile and Marital Debt
The Court finds that the parties have acquired some personal property as well as accumulating some marital debt. The parties agreed that the Defendant shall receive the kitchen appliances and washer and dryer when she vacates the marital residence. The Court directs that any other personal property items that the parties are unable to divide by mutual agreement shall be sold with the proceeds split equally. Each party shall retain the vehicles currently in their possession and shall execute any documentation to effectuate a transfer of ownership and indemnify and hold the other party harmless in accordance with this Order.
The parties raised $ 14,000.00 from a charity benefit to help assist in paying the medical expenses but the monies have been exhausted. While there were no outstanding loans or credit card accounts on their 236b Financial Affidavits there are various unpaid medical bills with a balance of $ 11,291.96 owed which is a marital debt and shall be divided on a pro-rata basis based on each parties' respective 2015 incomes. The Court further orders that each party shall retain and be solely responsible for any additional debt that has been incurred in each of their names since the date of commencement of this action.
Separate Property
It is well settled that all property acquired by either or both spouses during the marriage is presumed to be marital property regardless of whose name the property is titled in ( Domestic Relations Law § 236 [B] [1] [c]; Price v. Price , 69 NY2d 8 [1986] ). There is an exception for property that is acquired before marriage or property acquired by bequest, devise or descent, or gift from a party other than the spouse ( Domestic Relations Law § 236 [B] [1] [d] [1]; Sommers v. Sommers , 203 AD2d 975 [4th Dept 1994] ). Such property is considered separate and not marital property subject to equitable distribution Id. However, the party seeking to overcome the presumption of marital property has the burden of proving that the property in dispute was separate property ( Galachiuk v. Galachiuk , 262 AD2d 1026 [4th Dept 1999] ).
It was undisputed that the Defendant received a $ 14,000.00 gift from her grandfather while she was in the hospital. The money was deposited upon the Defendant's discharge from the hospital but while she was heavily medicated into a joint bank account. The Defendant testified that she had no other account at the time of the deposit. Further, the Defendant's mother testified that the grandfather gave gifts to his grandchildren noting "inheritance" in the memo section of the check and further claimed that the Plaintiff acknowledged to her that such monies were Defendant's sole property. The Defendant was readmitted into the hospital three days after the money was deposited and established that the Plaintiff spent some of the monies, without her knowledge or consent, on his children from a prior marriage. In response, the Plaintiff provided less than compelling testimony regarding the source and use of the monies.
The law is clear that during the course of a trial that conflicting testimony raises an issue of credibility that must be resolved based on a fair interpretation of the evidence before the court ( McKiernan v. McKiernan , 274 AD2d 560 [2nd Dept 2000] ). Further, the attitudes and views that are conveyed during testimony are relevant in determining which versions of the conflicting stories are to be found credible ( Gleckman v. Kaplan , 215 AD2d 527 [2nd Dept 1995] ). Significantly, the record reflects that the Plaintiff voluntarily returned $ 5,000.00 to the Defendant upon closing the joint bank account which further supported the Defendant's claims that the monies were her sole and separate property. Thus, the Court finds that the Defendant has established the $ 14,000.00 was her sole and separate property and directs the Plaintiff to reimburse the Defendant the remaining balance of $ 9,000.00.
Attorneys' Fees
The Defendant is seeking a contribution from the Plaintiff toward his attorney's fees in the amount of $ 6,640.00. However, Domestic Relations Law § 237 (b) provides that, before an award of counsel fees may be made, "both parties to the action or proceeding and their respective attorneys shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses." An affidavit of that type is not included in the record. Although the Defendant's seeks counsel fees in the amount of $ 6,640.00, the Court has no support for that amount beyond the reference thereto in Defendant's proposed findings of fact. Therefore, the Court directs that a Quantum Meruit Application be submitted to the Court by August 14, 2016 detailing completely all services rendered in this action and any amounts paid with opposition papers, if any, due by August 28, 2016.
Conclusion
Accordingly, the various issues are decided as set forth above. The attorneys shall calculate the exact figures owed to each party within thirty (30) days of the date of this Decision with monies owed to a party paid out (after applying offsets) over the subsequent thirty (30) days .
The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of this rule with regard to filing, entry and Notice of Entry.
This Decision shall constitute the Order of this Court and shall be filed as such.