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2006 NY Slip Op 51490(U)
BETH M., Plaintiff,
v.
JOSEPH M., Defendant.
203398/2001.
Supreme Court of the State of New York, Nassau County.
Decided July 25, 2006.
RUTH C. BALKIN, J.
“Whoever you are I have always depended on the kindness of strangers.”12
The instant matrimonial action presents issues of equitable distribution, maintenance, child support, custody and visitation involving three children embroiled in a long-standing and embittered fight between their parents. The Criminal Court, having heard the witnesses who testified during the trial, having examined the documents introduced into evidence, having listened to the parties’ arguments and having studied the memoranda of law, hereby makes these findings of fact deemed established by the evidence and reaches the following conclusions of law.
I. FACTUAL BACKGROUND
Plaintiff Beth M. (hereinafter “Wife”) and Defendant Joseph M. (hereinafter “Husband”) exchanged marital vows on August 25, 1983 in an Orthodox Jewish ceremony in Nassau County, New York State. At the time of the marriage the parties were very young New York residents, the Wife was 18 years old and the Husband, 22. Although the Wife had two years of college education at the Stern College for Women in New York City, the Husband merely finished a Yeshiva high school. She stopped studying without obtaining a degree after the birth of their first child, Roberta, and three more followed, to wit: Roz, Jack and Sofia. After the children
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were born, the Wife became a full time homemaker and parent. The parties raised their children adhering to the tenets of Orthodox Judaism and the children attended or currently attend Yeshiva.
At the time of their marriage in August 1983, the Husband was a Jewish music producer and sole owner and employee of Z Orchestra, which primarily booked bands for weddings, Bar/Bat Mitzvahs and other special events. Through Z Orchestra and the use of professional production studios, the Husband also produced albums and recordings for some well-known Hasidic musical entertainers, both in New York and in Israel. The Husband initially maintained a business office in Queens, which later operated from the marital home. The Husband at some point sold the company name of Z Orchestra, but continued in the same business, calling his company JMP. Throughout the marriage, the Husband remained the primary support for the household with these enterprises.
Upon the formation of JMP in or about 1985, the Husband’s income increased to the range of $100,000 to $125,000 per year. This would later include the Husband’s income of between $50,000 to $75,000 generated from his employment by the non-profit Jewish organization known as ABC. From 1989 through 1996, the Husband’s primary function with ABC consisted of putting together an annual special concert in New York City’s Lincoln Center that raised major funds for ABC. The Husband testified that in one year during the early to mid 1990’s, he had occasion to earn $150,000 as a result of the fundraising concerts and his employment by ABC, although he never attained that income level again.
Although the parties initially lived modestly with the children in rental apartments in Queens County, that changed in December 1989, when the family purchased for $350,000 their marital residence in an Orthodox community within Nassau County. From that point on, members of this tight knit community have emotionally aided and financially assisted the family throughout the marriage in the form of loans, barter, gifts and other generosities and “kindness of strangers” from within the Orthodox community, which extended from Nassau County all the way to Israel. It appears that the Husband scrapped together a down payment in the sum of $100,000, which he said he borrowed from a friend. Title to the home was placed in the name of the Wife and a mortgage was taken with Greenpoint Savings Bank on December 5, 1989, for $260,000 with a yearly interest rate of 10.75% and a default interest rate of 15.75%. On October 1, 1994, Greenpoint Savings Bank assigned the Mortgage to OCI Mortgage Corporation.
The Wife testified that in the Spring of 1995, she saw a notice that their house was in foreclosure, and she had a discussion with her Husband, whereupon he assured her he would take care of everything. In fact, the Wife testified that the last mortgage payment had been made in April 1993, there being non-payment for three years in addition to interest that was accruing. The house went into foreclosure in 1995 or 1996. At the time of the foreclosure, the Husband admitted to the Wife apparently for the first time that he had a drug problem and was using criminal cocaine.
A summons and complaint was filed by OCI Mortgage as against the Wife on May 10,
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1996, commencing a foreclosure action and demanding an acceleration of payment of the mortgage which at that time totaled over $260,000. A corporation familiar to the Wife’s family, XYZ Corporation, became involved in the foreclosure matter as a charitable act to the Wife, and negotiated with OCI to pay the outstanding mortgage which at that time was approximately $225,000 in addition to accrued interest, which combined totaled $387,000 as of July 1, 1996. On July 24, 1996, XYZ Corporation purchased and was assigned OCI’s rights under the mortgage. XYZ never took title to the house, which continues to be in the Wife’s name. The Husband testified that he made contributions toward fixing up the marital residence after 1996, but provided no evidence of any upgrades or improvements. An appraisal as of December 5, 2005, indicated the value of the marital residence to be $760,000.
From 1997 to early 1999, the Husband began working for another Jewish agency, as a coordinator of special events and earned, according to his own testimony, somewhere between $45,000 and $48,000 for an annual fundraising concert he organized. The Wife, for her part, testified that the Husband earned $75,000 in salary from the agency and was provided with a medical insurance plan, in addition to income generated by JMP for which the Husband had no documentation. A biweekly pay check dated December 31, 1998, indicated that the Husband earned a yearly gross income of $80,410.84 from the agency, which sum of criminal money did not take into account any income derived from JMP. In 1999, the Husband had approximately five jobs booked through JMP and sixteen (16) jobs booked through Sound Orchestra, a company through which the Husband also booked musicians, earning about $20,000.
In February 1999, the Husband started working as a day trader for Main Street Co. Main Street was owned by Mr. Martin., and in addition to day trading, the Husband organized all of Mr. Martin’s private events and parties, including Bar/Bat Mitzvahs for his children. According to the Wife, the Husband was paid $1,500 per week from a private charitable fund controlled by Mr. Martin, and sometimes the Husband was paid even more. The checks continued until 2001. In the year 2000, the Husband earned $100,000 from JMP, in addition to income from Main Street Co. The Wife introduced into evidence 55 checks paid by Mr. Martin to the Husband from March 10, 2000 through March 21, 2002 totaling $62,400.
Marital difficulties ensued in 2001 in part as a result of the Husband’s drug usage and allegations of domestic violence, prompting the Wife’s institution of a family offense proceeding in Nassau County Family Court (Lawrence, J.), which issued an Order of Protection against the Husband, directing him to stay away from the Wife and children, except for agreed upon visitation, and vacated him from the marital home on August 24, 2001. Shortly thereafter, on October 11, 2001, the Wife commenced the instant matrimonial action against the Husband by Summons with Notice, the parties having been married for over 18 years. In her Verified Complaint, the Wife alleges adultery by the Husband, drug abuse resulting in financial ruin as well as a litany of acts of domestic violence, verbal abuse, intimidation and threats against her and the maternal family. At the time, the Husband had been living in Brooklyn at his father’s residence, while the Wife has been living in the marital home with the parties’ four children.
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On November 7, 2001, the Nassau County Supreme Court (LaMarca, J.) issued a Preliminary Conference Order where the parties agreed to a discovery schedule, the Wife’s exclusive use and occupancy of the marital residence, and her retention of temporary legal and residential custody of the children subject to the Husband’s visitation rights. These terms were further elucidated in the Court’s pendente lite Short Form Order dated April 1, 2002, which directed the Husband to pay $400 per week in temporary maintenance and $1,000 per week for child support for the four children, in addition to paying for the children’s school tuition and extra curricular activities. The Husband was further directed to pay and maintain current policies of auto, medical and dental insurance on behalf of the Wife and children, as well as all reasonable and necessary medical, dental, orthodontic, optical and prescription medication not covered by insurance. The Husband was also directed to maintain a policy of life insurance with a face value of $200,000 naming the Wife and children as beneficiaries. Interim counsel fees in the sum of $5,000 were awarded to the Wife.
The matrimonial matter proceeded slowly as a result of discovery problems and the Husband’s lack of cooperation. Motion practice ensued and a Law Guardian, Alfred Reinharz, Esq., was appointed to represent the children throughout the course of the divorce proceedings. Because of further issues concerning drug usage by the Husband, it was ordered that he have supervised visitation with the children, which as of the date of the commencement of the trial, consisted of one to two hours on alternate Sundays supervised by the paternal aunt and uncle who reside in the children’s neighborhood. He was also ordered to undergo drug testing, some of which revealed positive results; the most recent drug test results submitted to the court reflected a positive test for cocaine as of February 2005.
A neutral forensic evaluator, Dr. William K. Kaplan, was appointed by the court on September 18, 2002, concerning contested custody and parenting access issues. A report was rendered a year later, in September 2003. On the strength of that report, the court ordered the parties and children to engage in psychotherapy with Dr. Roger Pierangelo, who worked with the couple and established therapeutic visitation for the Husband and the children.
By Short Form Order (LaMarca, J.) dated January 2, 2003, the Criminal court scheduled a contempt hearing based on the Husband’s failure to comply with the child support and maintenance provision of its pendente lite order, denied the Husband’s downward modification application and granted a money judgment to the Wife of $27,595 on child support and maintenance arrears. That was the beginning of the Husband’s continuous failure to fully pay for maintenance and child support to the Wife as well as for the children’s tuition and other necessaries. Although contempt hearings were scheduled, additional delays were caused by the Husband being hospitalized on multiple occasions for diabetes, cellulitis and heart disease, hospitalizations which the Wife alleged were often bogus and arranged by the Husband in collaboration with certain physicians.
Upon reassignment of this matter to the undersigned in 2005, this court immediately scheduled a status conference to ascertain the discovery needed and the status of the Husband’s
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visitation with the children. The undersigned reappointed Dr. Kaplan to render an updated forensic report and directed the parties to cooperate in securing same; the Husband, however, failed to cooperate. The matter was certified ready for trial and set for an expedited trial.
A non-jury trial was commenced on June 9, 2005 and spanned until January 9, 2006. Following the completion of the trial in January 2006, counsel summed up for the Court and was afforded the opportunity to submit legal memoranda addressing the issues presented for resolution. The submission date was adjourned at counsel’s request. The issue of counsel fees was to be submitted on papers without the necessity of a hearing (see Krutyansky v. Krutyansky, 289 AD2d 299, 300; Pinto v. Pinto, 260 AD2d 622). Chambers received the final submissions of the parties’ Memoranda of Law on April 14, 2006.
II. GROUNDS
An inquest was taken on June 9, 2005 with respect to the grounds for divorce, wherein the Wife testified with regard to her entitlement to a Judgment of Divorce based upon constructive abandonment, in that her Husband without justification, refused to engage in marital relations with her for one year prior to the date of commencement of this action which refusal has continued to the present time. She further testified that she did not consent or condone the refusal by her Husband to engage in sexual relations, there being no physical or mental impediment preventing such relations, and that she would remove all barriers which would prevent the ability of the Husband to remarry.
The Wife’s motion to conform the pleadings to the proof adduced at the inquest was granted by the undersigned, who reserved decision on the divorce grounds. The Husband neither admitted nor denied the allegations on grounds for Divorce. Under the extant circumstances and after hearing the testimony adduced at trial, the Court finds that the Husband constructively abandoned the Wife and hereby grants the Wife a judgment of divorce against the Husband pursuant to the provisions of Domestic Relations Law § 170(2) (see Gonzalez v. Gonzalez, 262 AD2d 281; Silver v. Silver, 253 AD2d 756).
Although a great deal of testimony was elicited throughout the course of these proceedings regarding the fact that the Husband (for many months, if not years) would not grant the Wife a “Get” in accordance with a religious divorce, the court received notice from both counsel upon the conclusion of the trial, that the Husband did in fact finally provide a “Get” to the Wife. There exists no barrier, religious or otherwise, affecting the ability of either party to remarry subsequent to a divorce being granted by this Court
III. CUSTODY
The following facts were elucidated at the trial with respect to custody and visitation. The Husband and Wife have been married for 22 years; she being married 1½ years when her first child Roberta was born. Roberta is now 21 years of age and was married on November 7,
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2005, a marriage to which the Husband and his family were not invited. There are three remaining unemancipated children of the marriage: Roz, age 17½, Jack, 13, and Sofia, 11. Although the two younger children are currently having supervised visitation with the Husband, Roz has refused to visit with her father for some time.
During the marriage, the Husband worked in the Jewish music industry, producing records and acting as a middle man between clients who needed musical entertainment and the orchestras who rented out their musicians for family events. The Wife was a “stay at home mother” while the children were growing up, and has always taken care of the children’s needs, including cooking for them, helping them with their homework, attending school functions, arranging and paying for tutors for Sofia and Roz, taking the children to their extracurricular activities and paying for them, taking Jack to his sports activities, attending to the children’s religious upbringing and providing a roof over their heads, even when the Husband failed to make support payments or pay the mortgage. The Wife arranged for the children’s schooling in various Yeshivas, and made sure they attended school even when there were insufficient funds to secure their private school tuition.
The Wife recalled that prior to the Husband being vacated from the marital home, he was rarely home for dinner with the children, and disappeared over many Friday nights and Sabbaths, his whereabouts being unknown to her. The Husband candidly acknowledged that, while he played with his children and took them to various places, including the synagogue, he rarely helped them with their homework or attended extracurricular activities, stating that he was often working while the children ate their dinner or participated in activities.
The Wife testified that sometime after they moved to Nassau County, and more precisely in 1992 through 1993, the Husband would disappear for hours and sometimes days at a time without notifying her of his whereabouts. According to the Wife, in December 1994, the Husband admitted he had a problem with cocaine. Although the Wife testified that she wanted a divorce, the Husband indicated he would seek help and, in fact, he attended the Smithers outpatient facility for drug treatment for a few months. The Husband refused to go in-patient for more extensive treatment and ultimately signed himself out of the recovery program. The Husband testified he completed the Smithers program but produced no verification.
Sometime in 2000, the Wife received a phone call from the Husband who stated: “I can’t talk, they are holding me here, I can’t leave,” and he hung up the phone. According to the Wife, the Husband was being held somewhere in Jackson Heights owing money to drug dealers, and was released when monies were paid. Indeed, it is the Wife’s belief that the Husband continues to use cocaine. A random drug test administered to the Husband in February 2005, demonstrated a positive test for cocaine. The Husband has not sought any help from any other licensed drug rehabilitation facility nor did he provide proof of any further testing after the positive drug test or proof of treatment with any licensed drug treatment therapist.
Not only does the Wife note her Husband’s drug abuse as disqualifying him from a
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custodial role, but she also points to his reckless and volatile behavior in order to further reduce his now minimal supervised visitation. The Wife testified to the Husband’s numerous car accidents when the children have been in the car, more specifically, in 1998, the Husband fell asleep at the wheel, and the Wife reported that they almost had an accident. In June 2001, The Husband was in a car accident when Roberta was with him and he totaled the car.
She also related an incident in August 2002, where the Husband came to the house to pick up Sofia for the weekend and Sofia wanted her older sister Roberta to go with her for the visit. According to the Wife, the Husband did not want to take Roberta, who nonetheless insisted on accompanying her sister. The Husband created a danger to the children by speeding off with Roberta and Sofia in the car. The Husband, in fact, confirmed that he was supposed to take Sofia to Great Adventures and his daughter Roberta pushed herself into the car and he had only wanted to take Sofia. At that point the Husband, by his own admission stated: “When your grandmother passes away, I will piss on her grave.”
An additional Order of Protection was sought and received by the Wife as a result of this incident, which also resulted in the Husband having only supervised visitation with the children. After the Husband was initially vacated from the home, he had supervised visitation every other Sunday and one midweek visit. Gradually, unsupervised visitation was resumed and then as of September 2003, it returned to supervised visitation, which continues to date. According to the Wife, the children are aware that the Husband has a drug problem.
A forensic evaluation dated September 2003, was conducted by Dr. Kaplan. As previously noted, the Husband did not cooperate with the court’s Order dated March 11, 2005 to secure an updated report from Dr. Kaplan regarding the parties and the children. In the only report submitted to this court, Dr. Kaplan opined that “normalized and liberal visitation for the Husband cannot be realistically implemented at this time. The children are too resistant to such contact with their father. Further, the Husband has failed to take proper therapeutic steps to demonstrate his capacity to rehabilitate his relationship with the children.” Dr. Kaplan recommended that the Husband engage in therapeutic supervised visitation with the children with the goal of normalizing visitation once the family therapist is “assured of the sincerity of the Husband to engage in such a process.”
The Husband has had therapeutic supervised visitation at Visitation Alternatives in 2003-2004 and has engaged in therapeutic visitation with Dr. Pierangelo for thirteen months thereafter, sometimes once a month, which visitation is no longer occurring. Other than speaking with a therapist at Visitation Alternatives at the conclusion of his supervised visit, the Husband never attended individual counseling with certified professionals nor attended any parenting programs or anger management courses. The Husband did, however, testify that he sought counseling from various Rabbis.
The Husband has had supervised visits with Sofia and Jack every other weekend on Sundays for an hour or two, and phone contact with the children two or three times a week. The
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supervisors for the Husband’s visits are the Husband’s brother and sister-in-law who reside in Nassau County, a few minutes from the Wife’s residence. When they are unavailable, alternate supervisors from the community are provided; however, if the Husband is not comfortable with the alternate supervisors he does not show up for his visits.
While the parties explored a supervisor in Brooklyn, where the children could stay overnight and not have to travel on the Sabbath, the acceptable supervisor to the Wife would not permit the Husband in his house. The Wife is willing to have the Husband’s brother continue to supervise the children’s visitation.
The Husband testified that the Wife contributed to the children’s estrangement from him. When he was hospitalized on many occasions as a result of acute complications for diabetes, the Wife never brought the children to visit him at the hospital. Additionally, the Wife was not cooperative in efforts by Dr. Pierangelo to work with the family, and in fact, she sabotaged this therapeutic process, since Dr. Pierangelo had some positive reports concerning the Husband. The Wife did confirm, that she believed that Dr. Pierangelo spoke on behalf of the Husband without giving the children’s concerns credence. However, Dr. Kaplan stated in his report that “it is the obstinacy, evasion and deceit of the Husband which has perpetuated and exacerbated this family turmoil. It is not due to any conscious or unwitting efforts of the Wife to undermine (the Husband’s) relationship with his children.”
While the Wife is opposed to therapeutic visitation with Dr. Pierangelo, she testified that she would cooperate with another therapist, while at the same time maintaining that she is opposed to therapeutic visitation in general, since it is not conducted in a warm and nurturing environment where the children are comfortable. In fact, it was the Wife’s opinion that visitation should be left up to the children and if the children are not comfortable, she would not force them to visit their Father. When asked what she has done to encourage a relationship between the children and their Father, the Wife could only point out that she makes sure the children are respectful when they are on the phone with their Father, although the children do a “coin toss” to see who will dial their Father on the telephone and the loser must initiate the call.
Nevertheless, the Wife testified that she would be in favor of the Husband being reunited with the children and having the relationship repaired but “it is conditional” on the Husband undergoing anger management, treatment for substance abuse issues, and parenting. The Wife points to the fact, that the Husband prefers the child Jack to his daughters, and provides Jack with gifts that are much greater in value than those given to the daughters.
Currently, the Husband has had no contact with 21 year-old Roberta. He is further estranged from 17½ year old Roz with whom he admits to having a history of verbal disagreements, and pressing her to do things in a certain way, which he now realizes was wrong. Regarding Jack, the Husband believes that their relationship is as good as it can be under the circumstances. The Husband has visits with Jack in a supervised setting. Sofia also attends supervised visitation and speaks with her Father.
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According to the Husband, in addition to designated telephone times, Jack has initiated telephone contact with his father as much as ten times a week and they discuss school, friends, and how he is doing. The Husband testified that he had a “fabulous relationship” with his son prior to the divorce action.
In sum, the Husband is seeking to have a schedule of visitation that includes holidays. The last Jewish holiday that the children and their Father spent together was Passover 2003 at the Husband’s brother’s residence. He is seeking visitation every other weekend (beginning on Fridays) and dinners twice a week with the children. He testified that he is willing to engage in therapy with the children, work on his parenting skills, go to individual therapy, go for drug testing, and he fully believes that people in the community would be willing to help him pay for these services.
A. In-Camera Interview of ChildrenRoz, Jack and Sofia were interviewed in Chambers by the Court with the Law Guardian present. The minutes of the children’s interview are part of this record, and remain “under seal,” and have been duly considered by this Court, but no further reference will be made to protect the confidentiality and contents of their testimony (Matter of Lincoln v. Lincoln, 24 NY2d 270).
B. The Law Guardian
The Law Guardian, in considering the needs of the children and the attributes of both parents, advocated on behalf of the children that they remain in their mother’s custody, and that the younger children Jack and Sofia remain in supervised visitation with their father until he is drug free and takes the proper therapeutic steps to rehabilitate himself. With respect to 17 year-old Roz, the Law Guardian advocated that she not be compelled to visit with her Father.
The Court has reviewed the exhibits and testimony and observed the parties over many days, if not months, and has carefully assessed their credibility and demeanor, as well as that of their witnesses. In short, the Court has painstakingly reviewed all the relevant evidence, including the forensic report, the testimony of all witnesses, the documentary evidence and testimony as well as the Law Guardian’s recommendation and the in-camera interview of the children.
C. Analysis
The main issue to be determined by the criminal court is the issue of custody and visitation. Each party herein is seeking sole custody of the parties’ children, albeit the majority of the testimony by the Husband addressed the need for expanded unsupervised parenting time with the children. The Husband’s primary argument is that he should become the children’s permanent sole custodian or, at the very least, have a normalized visitation schedule with the children, including expanded holiday, weekday, weekend and vacation days with the children, because the Wife has
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alienated the children from what was once a good parental relationship. For her part, the Wife strenuously objects to the Husband’s arguments, stressing his drug problems, parenting issues, anger management issues and his failure to seek his own therapy. The Wife fully believes that the children are being forced to participate in a relationship with their father, who has engaged in negative conduct and has done nothing to address his issues. The Wife seeks sole custody and a continuation of supervised visitation between the Husband and the children until he has “serious rehabilitation” regarding his use of criminal cocaine, and how to interact with his children. This Court agrees.
It is well settled that the paramount concern in a custody proceeding arising out of a parental dispute is “the best interest of the child[ren], and what will best promote the child[ren’s] welfare and happiness” (Eschbach v. Eschbach, 56 NY2d 167, 171; Matter of Lincoln v. Lincoln, 24 NY2d 270, 272-273). The Court must make provisions for the children in accordance with the Court’s view as to what is in their best interest, rather than the adjudication of any disputes between the parents (see Matter of Louise E.S. v. Stephen S., 64 NY2d 946; Matter of Findlay, 240 NY 429). There is no prima facie right to the custody of the children in either parent as “[t]he only absolute in the law governing custody of children is that there are no absolutes” (Friederwitzer v. Friederwitzer 55 NY2d 89, 93; Obey v. Degling, 37 NY2d 768, 771; see Domestic Relations Law §§ 70, 240; Matter of Jaeger v. Jaeger, 207 AD2d 448; Bluemke v. Bluemke, 155 AD2d 574, 575).
A myriad of factors have been considered by the Courts in the voluminous number of custody cases in which the Court’s seek to determine the best interests of the child. The primary factors which are considered, and which appear similarly stated in one way or another, are the ability to provide for the children’s emotional and intellectual development, the quality of the home environment, the parental guidance provided, the stability of the respective homes, the financial status and ability of each parent to provide for the children, the relative fitness of the respective parents and the length of time the present custody arrangements have been in effect (see Eschbach, supra at 173; Friederwitzer, supra at 94-95; Matter of Louise E.S. v. Stephen S., supra at 947; Matter of Canazon v. Canazon, 215 AD2d 652; Raniolo v. Raniolo, 203 AD2d 268; Matter of Lobo v. Mutee, 196 AD2d 585, 587; Matter of Cornelius C. v. Linda C., 123 AD2d 536). At the end, the question of custody is a matter of discretion for nisi prius, who is “accorded the greatest respect” (Matter of Ebert v. Ebert, 38 NY2d 700, 703; Matter of Irene O., 38 NY2d 776, 777).
Applying these principles to the matter at bar, the court finds that the Wife is a better custodial parent for the children. It is undisputed that the children have lived exclusively with her since the Husband was vacated from the marital residence on August 24, 2001. Although the court finds that the Wife deeply loves her children and testified that she would like her Husband to be able to resume a healthy relationship with his children, if he meets certain conditions, this court also finds that the Wife has engaged in subtle manipulative conduct designed to undermine any such relationship, even in a supervised setting between the children and the Husband. The Wife has categorically labeled therapeutic visitation in a therapy setting to be uncomfortable for
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the children without exploring alternatives; she undermined the one therapeutic setting that the Husband found beneficial, namely, Dr. Pierangelo, and she has countenanced negative activity by her children, such as their game of tossing a coin to determine that the loser of coin toss must initiate the phone contact with their father.
Having said this, the Husband has engaged in countless acts of self-sabotage, and knowing the issues of this case, has failed to taken any positive steps which would have enabled him to address his parenting issues. Although recited in the facts, it bears noting that the Husband has refused to partake in supervised visitation if he does not like the supervisors, has make derogatory remarks about the maternal grandmother (with whom the children are very close), angered the children with his conduct and placed them in fear by driving dangerously with them in the car, even getting into car accidents. “The testamentary evidence is compelling that the Husband is devoid of good judgment regarding the care of his children and that it would not be in (their) interests for the Court to consider unsupervised visitation with (their) father.” (M.S. v. J.S. Supreme Court, Richmond County, NYLJ, November 18, 2005).
The unchallenged3 forensic report by Dr. William Kaplan further support this conclusion. Dr. Kaplan found in his September 2003 forensic report that:
normalized and liberal visitation for the Husband cannot be realistically implemented at this time. The children are too resistant to such contact with their father. Further, the Husband has failed to take proper therapeutic steps to demonstrate his capacity to rehabilitate his relationship with the children.
The first step to normalizing visitation for the Husband will require therapeutic supervised visitation in order that he can gain the confidence of the children. It is important that the children continue in individual psychotherapy to help them cope with this highly stressful family situation. I am optimistic that the relationships between the Husband and all of his children can be rehabilitated if there is a good faith effort on his part to accept professional help in order to gain insight about how his behavior has been the primary culprit in the alienation his children have expressed towards him. I do support normalizing visitation once the family therapist is assured of the sincerity of the Husband to engage in such a process. I am confident that the Wife will honor her obligation to promote a healthier relationship between the children and their father.
While the forensic evaluator recommended that the Husband engage in individual therapy, he has
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to date not done so.
Nor has the Husband properly addressed his admitted drug problem. Although he testified that drugs are a problem of his past, a February 2005 drug test exhibited a positive test for cocaine. The Husband did not provide any evidence that he has addressed his drug problem, that he has attended a licensed rehabilitation facility (with the exception of his outpatient attendance at Smithers in 1994), or that he has secured any consistent drug testing that demonstrates that he is no longer using drugs. In fact, the only evidence produced by the Husband with respect to whether he has an ongoing drug problem, is his own testimony of denial and under the circumstances of this case, that is insufficient.
The Court finds that the Wife has been a caring mother to the children, ensuring that they attended Yeshiva, managing to keep them in school despite the Husband’s failure to contribute to tuition payments, involving them in extra curricular activities and keeping them well clothed, fed, nurtured and with a roof over their head. The Court finds that the children have shown positive improvements as a result of her initiatives and she has parented them well, such that Roberta is now married and attending university, and Roz, Jack and Sofia are doing well in school and participating in activities.
The Court finds, based on the credible evidence and in the best interests of the children, that the Wife will be a more fit sole legal custodian who will sincerely attempt to provide a stable home environment for the children. In rendering this decision, the Court has also considered the summation of the Law Guardian, the report of the professional evaluator, the testimony of the parties as well as the in camera interview of the children and relevant case law. While considering the forensic report and the summation of the Law Guardian, this Court has nonetheless made its own independent assessment based on the evidence presented at trial.
In rendering this determination, the Court is also mindful that unless a comprehensive parenting access plan is established for the Husband, the Wife will not promote or initiate a schedule designed to rekindle a relationship between the Husband and the children. The record is clear that the parties disagree on practically every scheduled visitation, every holiday and every celebration in their children’s lives. There is no communication regarding health, education or welfare of the children. Simply put, the record demonstrates non-cooperation, non-communication and antagonism between the parties, which despite the granting of a “Get” by the Husband to the Wife, has not produced any cessation of the negativity between the parties.
Accordingly, a full and comprehensive roadmap is set forth below in the Visitation portion of this decision, to enable the Husband to engage in a step by step parenting access plan with the goal of implementing a full and regular access schedule to the non custodial parent. The Court urges the parties, to set their difference aside, and cooperate in the implementation of this schedule and the utilization of professionals to effectuate same.
Needless to state, any on-going negative activity demonstrated by either parent, may
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derail any attempt to achieve long term normalization of visitation issues and the positive growth of their children, including any attempt to derail the implementation of a visitation plan as set forth below:
D. Visitation
The Husband shall continue to have supervised visitation with the two younger children, Jack and Sofia, supervised by the Husband’s brother on alternate Sundays for two hours, with substitute supervisors being designated, should the brother not be available. Although there is testimony that the children are comfortable in the home of the Husband’ brother, the visits are not being accompanied by any therapeutic component to address issues between the Father and the children, a key component to moving visitation forward.
Accordingly, the Court hereby appoints Dr. Calvin Haber, as a therapeutic supervisor (excluding those professionals previously utilized in this case) to conduct weekly therapeutic visitation between Jack, Sofia and their father. These therapeutic visitation sessions shall be in addition to the bimonthly visits with the Husband at his brother’s residence. The Husband shall bear the cost of the therapeutic visitation to the extent that same is not covered by insurance, and in fact, the Husband testified that he has “sponsors” who will help him with the cost of these services to enable him to facilitate greater visitation. The Court shall receive confirmation of a scheduled appointment with the therapeutic supervisor within 15 days of service of this decision.
In addition to supervised and therapeutic visitation, and as part of a roadmap to normalizing visitation, the Husband shall have a drug assessment conducted by Smithers (or if Smithers is not able to do an assessment, counsel shall agree upon another licensed rehabilitation facility) to determine the extent of any on-going drug problem that the Husband may currently have. The assessment shall contain a recommendation as to any required level of treatment (in-patient or out-patient) needed to effectuate any rehabilitation. The Husband shall sign releases to enable the court and counsel to be apprised of the nature of any rehabilitation required. If the Husband is not being tested as part of any rehabilitation plan, the Husband shall have random drug testing for a period of one year, the results of same being provided to the Court and Counsel.
As an additional part of the roadmap to normalizing visitation between the Husband and children, the Husband shall engage in his own individual therapy, not as a precondition to therapeutic or supervised visitation, but as a component to normalizing visitation (see Matter of Williams v. O’Toole, 4 AD3d 371, 372; Matter of Remillard v. Luck, 2 AD3d 1179; Gadomski v. Gadomski, 256 AD2d 675, 677). As the Husband engages in therapeutic visitation, coupled with his own individual therapy, drug counseling, and proof of compliance with drug testing, the parties are encouraged to modify the supervised visitation so as to provide for incremental increases in visitation, including unsupervised dinner visits between the Husband and children, day visits, and finally overnight visits inclusive of the Sabbath and other holidays. If the parties cannot agree upon expanding visitation, court intervention should be sought only upon a showing
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of a change of circumstances, which change of circumstances shall include, but not be limited to the Husband’s participation in the aforesaid therapies and programs.
The Husband shall have the right to initiate telephone contact with Jack and Sofia three times a week, and in addition, the children shall have the right to initiate unlimited telephonic or computer access with their father, which shall not be discouraged by the Wife. In order to accomplish this, the parties at all times shall inform each other with respect to the residence and telephone number of the children and the residence of each other, and any change relative thereto. It is further ordered that neither parent shall denigrate the other parent in the presence of the children.
The relationship between the Husband and the 17½ year old daughter Roz is at the present time estranged. The Husband admits to this strained relationship with Roz as he has a history of ongoing verbal battles with her and, in reflection, he pushed her to do things in a certain way which he now regrets. She shall be encouraged but not ordered to attend visitation with the Husband. Although the Husband is seeking to terminate his support obligation to Roz, based upon the fact that she refuses to visit and has abandoned him, the Husband has not proven that he has undertaken any steps to ameliorate the problems which led to their estrangement, and he has thus failed to demonstrate that Roz has abandoned him.
IV. CHILD SUPPORT
In the case at bar, the gross income of the Husband who is the non-custodial parent has been the source of much mystery. For child support purposes, the court must examine the most recent annual earnings of the non-custodial parent, but it can impute additional income to him based on a history of higher income prior to the marriage, as here. During the marriage, the Husband’s earnings fluctuated between $65,000 to $150,000. After commencement of the action in 2001, the Husband went back to work with ABC until September 9, 2005, producing their annual concerts at locations such as Lincoln Center and Madison Square Garden. In some years, he also produced an album in conjunction with the concerts that took place. ABC also provided a medical plan for the family. In 2001, the Husband earned approximately $16,000 from ABC and about $10-15,000 for producing an ABC album. According to the Wife, the Husband also had 20 jobs from JMP in 2001, the Husband conceding additional income of at least $20,000.
In January 2002, for an ABC concert organized at the Metropolitan Opera, the Husband was paid $34,521.44 and also received another $10,096.20. He was also offered a financial commitment of $60,000 from ABC for future employment. On a Net Worth Statement dated June 12, 2002, the Husband reported earnings of $100,000 as income from all sources, specifically citing “musical entertainment jobs.” Similarly, in 2003, the Husband organized a concert for ABC in Lincoln Center and was paid $50,813.80 and earned $10,000 from JMP according to his Net Worth Statement. The Husband also earned $20,000 for an album he produced for ABC.
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The Husband testified that with respect to the year 2004, his accountant prepared a tax return. It has not been signed by him nor filed with Internal Revenue Service. While the draft tax return lists income in the amount of $46,000 from ABC, it reflects no information concerning any income received from JMP in 2004, although the Husband testified it was less than $20,000.
In 2005, the Husband produced another concert for ABC and earned $46,000, in addition to receiving medical insurance coverage for the family. He also produced a CD through his company, although the compensation of $20,000 that the Husband is seeking for this album is still “undecided.” An additional $5,000 to $6,000 was also earned by the Husband for musical productions at weddings. Although he gave a concert for the Fund in March 2005, the Husband testified he received no compensation.
The Husband testified that his employment with ABC terminated as of September 9, 2005 and although he mentioned a severance package, there were no details as to the final pay-out. The Husband has not sought unemployment, but indicated he would continue to pay medical insurance for his family through COBRA. When asked whether he still booked entertainment jobs, the Husband responded he had stopped as of the latter part of 2005. With respect to any income earned from JMP, the Husband testified it was under $10,000.
The Husband testified that he really does not know how much he earned from JMP, but from 2001 on, his income from this entity decreased. He also maintained no records of income for CDs or musical albums that he produced. He acknowledged, for example, that in 2003, he earned more than $10,000, but he could not say if it was more than $20,000, even while conceding that he received a $15,000 check issued to him in 2003 for a wedding. The Husband explained that the $15,000 check was a loan to him, although he did not list this “loan” as a liability on his 2003 Net Worth Statement nor has he ever paid it back. The Husband in fact lived off the income of many loans provided by friends and relatives of several thousands of dollars.
In addition to loans, the Husband testified as to sponsors and friends that provided him with additional benefits. For example, in the year 2001, the Husband was given the use of a Maxima vehicle which was provided to him at no cost by a Rabbi. He was subsequently given the use of a Toyota Camry by that Rabbi and now drives a 2004 Honda Accord vehicle also provided by the Rabbi, who pays the monthly car payments while the Husband’s father pays the insurance.
In 2004, the Husband went to Israel and stayed at the Jerusalem Gold Hotel for one month in Jerusalem. He testified that the airfare was paid for by a friend and the hotel invited him to come as a celebrity guest and paid for his stay, since he was an advertisement for the hotel. In fact, the Husband traveled to Israel on more than one occasion in the past few years, with his airfare and meals being paid for by other donors, including a “spiritual trip,” right after he left the marital residence and other trips involving the recording of musical productions. In late March 2005, the Husband took a trip to Russia to visit and pray at the gravesite of three
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Rabbis. The Husband testified that the cost of the trip, in the amount of $1,200 or $1,500 has still not been paid.
Mr. Samuels testified that he knows the Husband for 10 or 15 years and has helped him financially over time. From the summer of 2003 until September 2005 (the date of Mr. Samuels’s in-court testimony), Mr. Samuels gave the Husband $178,775, which Mr. Samuels testified “I like to look at it as a loan,” although he admitted there was no formal loan agreement. The Husband also made re-payments to Mr. Samuels over the period of time that he advanced or gave him monies. Over the past two years, Mr. Samuels has received repayments from the Husband in the sum of $140,000.
The Husband testified that for a period of time Mr. Samuels was paying his temporary maintenance and child support obligations in the sum of $3500 per month, the last payment being made by Mr. Samuels on August 17, 2005. The Husband testified these were loans. The Husband also received money from Mr. Samuels, whom he listed as a creditor on his net worth statement in the sum of $48,000, which the Husband testified was used to pay his contempt and other arrears. Another donor, Mr. Brooks also gave him money for support. The Husband nonetheless testified he had no idea how much money he received from others in total to help him pay his support obligation. When asked in what form the Wife received her pendente lite payments of $3,500, the Husband testified that he had money orders made up, or sometimes it was a bank check.
When questioned as to specific musical events or recordings, the Husband acknowledged that he produced the music for various events including the Carol Wedding which was recorded on cassette tape in 2000, as well as tapes of other private parties and events. For the Carol Wedding tape, the Husband was paid $7,000 or $7,500. He does not recall how many CDs he produced in 1999, but conceded he had at least 16 musical jobs for which he received money. Many times he was paid in cash.
When questioned about various other events he performed in 2002, 2003 and 2004, including the M. Bar Mitzvah, the B. wedding, the L. wedding, the M. party, the S. wedding, the S. Bar Mitzvah, the G. wedding, the J. wedding, and the S. Bar Mitzvah, the Husband testified he didn’t remember how much he was paid, or he wasn’t paid, or he did it as a favor, or it was part of a barter deal, or he received cash. In any event when asked how much money he earned for the years 1997 through 2004, the Husband replied he did not know, and in fact, he never produced any contracts as part of discovery proceedings.
When asked whether he filed tax returns, the Husband responded, “No.” In fact, it was the Husband’s position that he did not know how much money he earned, and he never kept records. The Husband testified that he did not have a bank account from 2001 on and that any checks he received, were cashed at check cashing places or through someone else’s account. The Husband had no recollection of filing tax returns in the years 1997, 1998, 1999, 2000 or 2001
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and he never filed tax returns for JMP.4
This Court, pursuant to the Domestic Relations Law § 240(1-b), must consider and conduct the calculations delineated there as well as the factors set forth in Domestic Relations Law § 240(1-b)(f), which permit a deviation from the calculations set forth therein. “Income” for the purposes of calculating child support shall include the gross income reported in the most recent federal income tax return in addition to investment income, compensation voluntarily deferred and any other income from any other sources, such as meals, lodging, memberships, automobiles, and money provided from relatives and friends (see Matter of Ladd v. Suffolk County Dept. of Social Servs., 199 AD2d 393, 394; see Domestic Relations Law § 240 [1-b][b][5][iv][D]). Indeed, the matrimonial court has the discretion to attribute or impute income in calculating child support “based upon the parent’s former resources or income” (Domestic Relations Law 240[1-b][b][5]; see Brown v. Brown, 239 AD2d 535), or “based upon a prior employment experience * * * as well as such parent’s future earning capacity in light of that party’s background” (Matter of Susan M. v. Louis N., 206 AD2d 612, 613).
Applying these principles to the matter at bar, the criminal court must impute a gross income amount to the Husband commensurate with his past earnings and ability in order to calculate child support. Although the Husband’s testimony with respect to his finances was vague filled with “I don’t remembers” and he had no idea how much he made from JMP, the Wife presented a more accurate picture of the large cash component of the family’s finances and the profits of JMP. Faced with the failure of proof by the Husband, the court need not rely upon his own account of his finances in awarding relief (see id.; Brown v. Brown, 239 AD2d 535). Despite the Husband’s lamentations of inability to obtain employment, this Court is not satisfied that he has done everything possible to secure employment. The record reveals that he has substantial experience in the music business and connections prepared to “sponsor” or find suitable employment to him upon his asking. In fact, in the mid 1990s, the Husband earned as much of $150,000 as a result of employment and organizing musical events.
Throughout the marriage, the Husband attained a certain level of celebrity status, such that hotels in Israel granted him free meals and lodging, and his name was used to attract other guests to the hotel. He engaged in barter and loans, had paid vacations to Israel and Russia, and monies loaned to him to pay child support. Indeed, the Husband has “sponsors” who pay for his car, give him loans, pay his insurance, and counsel fees for prior and current counsel. The fact is that the Husband is being supported by his “sponsors,” whose largesse must be hereby imputed as income to him (see Matter of Ladd, supra 394). That he is currently unemployed appears to be a
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self-created ploy arising as a result of the continuation of this action.
The Husband testified that he is currently unable to lead the band, as a result of problems from diabetes affecting his foot and he estimated 70-75% of the jobs were booked predicated on him being the band leader. It is noteworthy that there were many delays in the divorce proceedings occasioned by the Husband being hospitalized for diabetes or alleging the need for medical home confinement, a fact which the Wife contested alleging that, for example on April 2, 2005, he was unable to attend the criminal court date, but appeared at a wedding that same day. When confronted with this date, the Husband did nor recall why this occurred.
When faced with contradictory testimony in matrimonial actions, as here, “[e]valuating the credibility of the respective witnesses is primarily a matter committed to the sound discretion of the Supreme Court” (Varga v. Varga, 288 AD2d 210, 211; Diaco v. Diaco, 278 AD2d 358; Ferraro v. Ferraro, 257 AD2d 596). The Court’s assessment of the credibility of witnesses in a nonjury trial is entitled to great weight (see Wortman v. Wortman, 11 AD3d 604, 606; Ivani v. Ivani, 303 AD2d 639, 640). In this case, the court believes the Wife’s statements and evidence regarding the Husband’s finances. The Husband’s testimony with respect to his finances is contradictory and incredible. Faced with his self-created unemployment, lack of financial records and questionable claim of limited future earnings, this Court finds sufficient basis to impute employment income and earnings of $100,000 per year to the Husband (see Peri v. Peri, 2 AD3d 425, 426; Johnson v. Chapin, 299 AD2d 294; Kent v. Kent, 291 AD2d 258, 259; Darling v. Darling, 220 AD2d 858).
Reducing the Husband’s earnings of $100,000 by FICA, which is calculated as 6.2 percent of the first $94,200 of earned income for social security taxes (see 26 USC 3101[a][, 3121[a]), or $5,840, and Medicare tax, which is calculated at 1.45 percent of earned income (see 26 USC 3101[a][, 3121[a]), or $1,450 per year, the Husband’s employment earnings for child support purposes are $92,710. That sum must be further reduced by the maintenance award he is required to pay in the amount of $24,000 per year, as discussed below (see Domestic Relations Law 240[1-b][b][5][vii]; Rohrs v. Rohrs, 297 AD2d 317, 318), to arrive at his income for child support purposes of $68,710.
On the other hand, the Wife, who has since returned to work, has filed her own tax returns for the year 2002, when she earned $8,800, and in 2003, when she earned $33,100 in her capacity as a title closer. In 2004, the gross income of the Wife, who is the custodial parent, is $59,000 per year. Reducing her earnings by FICA, which is calculated as 7.65% or $4,513.50, yields an income for child support purposes of $54,487. The parties combined income for child support purposes is, therefore, $123,197, of which 56% is attributable to the Husband and 44% is attributable to the Wife. Even though the parties’ combined income is $123,197, pursuant to the CSSA, multiplying only the first $80,000 to the applicable child support percentage for the three children of this marriage of 29%, yields a basic child support obligation of $23,200 per year. The Husband’s 56 percentage share of this obligation is $12,992 per year or $1,083 per month; the Wife’s 44% percent share is $10,208 or $851 per month. Clearly, these amounts of child support are woefully inadequate herein, where the family expends almost that total yearly amount for two
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months of family and housing expenses.
Consequently, where the combined parental income exceeds $80,000, as here, the statute requires the Court to determine whether additional child support is appropriate by reason of the parental income in excess of the basic child support limit and, if so, “through consideration of the factors set forth in paragraph (f) * * * and/or the child support percentage” (Domestic Relations Law § 240[1-b][c][3]). The “paragraph (f)” factors include the financial resources of the parents and child, the health of the child and any special needs, the standard of living the child would have had if the marriage had not ended, tax consequences, non-monetary contributions of the parents toward the child, the educational needs of the parents, the disparity in the parents’ incomes, the needs of other nonparty children receiving support from one of the parents, extraordinary expenses incurred in exercising visitation and any other factors the court determines are relevant (Domestic Relations Law § 240[1-b][f]). After considering the circumstances of the parties, the Court may apply the paragraph (f) factors, or the statutory formula, or a combination of both (see Matter of Cassano v. Cassano, 85 NY2d 649, 654-655; Zelma v. Zelma, 294 AD2d 431, 432; Anonymous v. Anonymous, 286 AD2d 585, lv denied 97 NY2d 611).
Under the circumstances of this case, the Court will opt to apply the statutory percentage to the combined parental income over $80,000. There are several reasons why application of the statutory percentage beyond the basic child support is appropriate here. First, the statutory limit on basic child support does not reflect current economic reality. Not only was the basic child support cap adopted by the Legislature almost twenty years ago in 1989, but the economic reality of raising a family and living in New York has increased dramatically since then. Secondly, applying the statutory percentage to income over $80,000 is consistent with the standard of living enjoyed by the family herein. The parties’ Statements of Net Worth and testimony reflect ordinary spending of well over $145,000 for combined family and housing expenses.
As a third reason for the application of the statutory percentage to the total parental income, is that courts, including the Appellate Division, Second Department, have, in fact, routinely applied the statutory formula to combined parental income as high as and greater than $200,000 (see Scheinkman, New York Law of Domestic Relations, § 16.34, at 679; compare Matter of Brim v. Combs, 25 AD3d 691, lv denied 6 NY3d 713 [over one million dollars in income used for child support of $220,000 per year]; Anonymous v. Anonymous, 286 AD2d 585, 586, lv denied 97 NY2d 611 [over $150,000 child support]; with Kosovsky v. Kosovsky, 272 AD2d 59, 60 [$300,000 cap on income for child support]). Here, the lifestyle established during the marriage, the standard of living enjoyed by the children, and the amounts expended on daily living are commensurate with a level of expenditure greater than that which would be possible if child support were limited to the basic child support required by statute.
Accordingly, in considering the circumstances of the parties as well as their standard of living in Nassau County, application of the CSSA percentage of 29% to the total $68,710 for the Husband and $54,487 for the Wife is appropriate here. The combined parental income is thus
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$123,197 and the child support obligation shall be $35,727 per year or $2,977 per month. The non-custodial parent’s pro rata share of the basic child support obligation is $20,007 per year or $1,667 per month. The Wife’s share is $15,720 per year or $1,310 per month. The Husband shall therefore pay to the Wife child support for his three children in the sum of $1,667 per month. The Court finds that based on the facts and circumstances of this particular case, the non-custodial parent’s pro rata share of the basic child support obligation would result in a just and appropriate award for base child support (see Matter of Cassano, supra at 649).
Child support shall commence immediately and will be retroactive to the date on which the Wife made her initial demand for child support, to wit: October 11, 2001. The Husband may take credits for sums paid from his income during the pendency of this action pursuant to the pendente lite order towards child support, carrying charges of the marital residence, repairs to same, tuition, summer camp expenses and extracurricular activities which benefitted the children, for which he has canceled checks or other similar proof of payment (see Koeth v. Koeth, 309 AD2d 786; Daniels v. Daniels, 243 AD2d 254). This obligation shall continue at the same rate until the maintenance award is terminated on October 11, 2006. At that time, the Husband’s child support amount shall be upwardly modified to the sum of $26,883 per year or $2,240 per month until emancipation of the first child based on the Husband’s income of $92,710 per year ($68,710 plus $24,000 maintenance), or the appropriate sum after the actual amount of income he and the Wife shall be making at that time (see Domestic Relations Law § 240 [1-b][b][vii][C]). After Roberta’s emancipation, the child support amount payable by the Husband under a rate of 25% shall be $23,175 per year or $1,931 per month; upon the emancipation of Jack, it shall be $15,759 yearly or $1,313 monthly as 17% of the Husband’s $92,710 salary (see Lee v. Lee, 18 AD3d 508, 511).
The Husband shall continue to maintain all existing medical, hospitalization and dental insurance for the benefit of the Wife and children until such time as a Judgment of Divorce is signed and entered, and thereafter, only for the benefit of the children. The Wife shall endeavor to use physicians and specialists who are participants and covered under the Husband’s health insurance plan (see Hills v. Hills, 240 AD2d 707), unless the parties agree to the contrary.
A. Arrears of Child Support and Tuition for Yeshiva
The children all attend private Yeshiva schools, a fact which was agreed upon by the Husband. The Wife testified that the Husband has not paid their children’s private school tuition and from the date of the pendente lite order, $80,000 is owed for tuition. The Husband testified he worked out barter deals for Roz, Sofia’s and Jack’s tuition wherein he would produce benefit fundraising concerts for the children’s school in exchange for a waiver of tuition, and he contests the amount of tuition arrears sought by the Wife.
Roz, age 17, has had scholarships for most of her high school years at her Yeshiva. The Wife has covered the deficiency of her tuition in the sum of $5,000 to $6,000 receiving no assistance or reimbursement from the Husband. Roz’s tuition this year was $18,000 of which the
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Wife paid $2,000 and the rest is scholarship. The Wife paid between $1,500 and $2,000 for the year 2004-2005, the rest being scholarship. In 2003-04 the Wife paid $1,000. In 2002-2003, the Wife paid $1,000. In 2001-02, the Wife paid $1,000, the Husband paid $500.
The daughter Roberta attended Yeshiva and graduated in 2003. In 2001 through 2002, the tuition was $8,000. In 2002-03 her tuition was also $8,000. Even though Roberta’s tuition was not paid, she was allowed to attend school. When questioned whether that there is a debt still due and owing, the Wife responded “not really,” although she still would like to have the school paid. The Husband testified that the fund paid $6,000-$7,000 for a scholarship for Roberta, without any documentation to verify said scholarship or that it was funded. Currently, the daughter Roberta, age 21, is enrolled in college. In the Fall 2004, the Wife paid $12,315 towards Roberta’s college expenses and in the Spring 2005, she paid $9,000. For the 2005-06 semester, Roberta has a scholarship and the Wife paid only $3,000, the difference being paid through a scholarship. Roberta was recently married in 2005.
Regarding the child Jack, age 12½, he attends a Yeshiva, where tuition, beginning in 2001 was $7,500 per year and has risen in 2005 to $10,000 per year. The Wife has partially paid $3,000 in order that the school continue Jack in his studies. Other people in the community have made donations to cover some of the past tuition deficiencies for Jack. The Husband has provided no money for tuition payments, although he organized a concert as barter for Jack’s tuition. The Wife testified on cross examination, that she was not sure if the tuition was expunged by the bartered concert. Jack’s tuition for camp was paid for by other donors, although the Husband did perform a concert in barter for camp tuition.
With respect to 10½ year old Sofia, the Wife testified they owe $36,420 to the School for Girls, reciting the five year tuition history between September 2001 and 2005. The Husband has not made any payments for any of the school years, however, he informed the Wife that Sofia’s tuition would be taken care of, by way of a barter arrangement for a musical event at her school. The Husband never did the concert, his explanation being that it cannot take place until the divorce is resolved. There was no defined testimony as to whether the school is actually requiring payment from either the Husband or the Wife, but neither party has made payments to date.
With respect to educational expenses, the Wife testified that she paid out of pocket for Roz $7,000, for Sofia $0, and for Jack $3,000, totaling $10,000 out of pocket educational expenses for the children. In addition, the Wife is seeking reimbursement for payment of Roberta’s college tuition of $13,000. While the Wife claims the total sum of $80,000 allegedly due the private schools, she has not demonstrated that the yeshivas were actively seeking reimbursement or have commenced an action to recover any tuition arrears. Other than this being a charitable or moral debt, there is no evidence of the existence of a legal debt to the yeshivas. It was not even clear whether the Husband had actually bartered away this debt. As such, the Wife shall be entitled to reimbursement of a percentage of $23,000 of tuition expenses.
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In addition to non payment of tuition the Wife testified that the Husband has failed to pay for any of the extra curricular activities of the children, including ballet, dance and karate for Sofia (approximately $1,250) and basketball, karate and hockey for Jack (approximately $1,750). The Wife further seeks a contribution from the Husband for the expenses associated with sending Sofia and Jack to summer camp which sum totals $3,550, as well as all unreimbursed medical expenses from doctors and prescriptions for the children including expenses for a psychologist for Jack. The sum total of these unreimbursed medical expenses equal $12,000, inclusive of $10,675 for Jack’s psychologist, the latter cost not being covered by insurance.
The Wife further testified that as of September 26, 2005 (the date of her testimony), the Husband is in arrears in the sum of $46,000 for support arrears. The Husband agreed he was in arrears for child support, maintenance, unreimbursed medical and tuition, but did not know the amount of arrears since other people were making payments for him including Mr. Samuels and Mr. Brooks.
It is statutorily required that the Husband is, in addition to the child support payments, obligated to pay his proportionate share, 56% percent, and the Wife, 44%, of the statutory “add-ons” for the expenses of child care, education, extra-curricular activities and non-reimbursable medical and dental costs (see Domestic Relations Law § 240[1-b][c][4], [5] & [7]; Slankard v. Chahinian, 204 AD2d 529; Matter of Copeland v. Evans, 181 AD2d 1062, 1063), after the Wife presents to the Husband any related bills. As such, the Husband must pay to the Wife child support arrears of $46,000; plus 56% of educational expenses and extra-curricular activities amounting to $14,868 (56% of $26,550); and non-reimbursable medical expenses of $6,720 (56% of $12,000); for a grand total of child support and related arrears of $67,588. He may take credits if he has made any payment towards those arrears.
expenses for the parties’ unemancipated children, her request must be denied as being too speculative since neither party focused at trial on the children’s college education. There was no evidence presented to the court with respect to such factors as: the children’s academic abilities and interests, their likely choices and preferences for college education, whether the children attend high school where most students go on to college, and the likely costs involved (see Friedman v. Friedman, 216 AD2d 204; Rochio v. Rochio, 213 AD2d 535; Romansoff v. Romansoff, 167 AD2d 527). Without this necessary evidence, the court cannot award college expenses to the Wife at this time (see Granade-Bastuck v. Bastuck, 249 AD2d 444; Gilkes v. Gilkes, 150 AD2d 200, 201; Matter of Whittaker v. Feldman, 113 AD2d 809, 811-812).
V. MAINTENANCE
The next issue to be determined by this Court is the Wife’s entitlement to maintenance from the Husband. Relying on her contributions to the marriage and business, the Wife requests the payment of ten years of durational maintenance in the monthly sum of $2,000 per month or
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$24,000 per year, in order to continue the pre-separation standard of living in this 18-year marriage. The Husband opposes any amount of maintenance to the Wife based on her capacity to work full time, his alleged payment of pendente lite maintenance for almost four years, and the children’s ages. This Court agrees with the Husband in part.
Domestic Relations Law § 236(B)(6)(a) permits a court to order maintenance for a spouse “in such amount as justice requires, having regard for the standard of living of the parties established during the marriage,” their individual property and income and their ability to provide for each other’s reasonable needs (see Summer v. Summer, 85 NY2d 1014, 1016; Wortman v. Wortman, 11 AD3d 604, 606; Unterreiner v. Unterreiner, 288 AD2d 463). The ability of the payee spouse to become self-supporting “with respect to some standard of living” neither obviates these requirements nor precludes an award of maintenance (Hartog, supra, at 52; Allen v. Allen, 275 AD2d 225, 226). “The overriding purpose of a maintenance award is to give the spouse economic independence” (Bains v. Bains, 308 AD2d 557, 559). The matrimonial court must consider the factors set forth in Domestic Relations Law § 236(B)(6)(a)(1-11) in order to determine the appropriate maintenance payments (see Hathaway v. Hathaway, 16 AD3d 458, lv denied 6 NY3d 703; Kaprelian v. Kaprelian, 236 AD2d 369; Phillips v. Phillips, 182 AD2d 746, 747). It is well settled that the amount and duration of such maintenance is a matter committed to the sound discretion of the matrimonial court (see Fridman v. Fridman, 301 AD2d 567; Plotnick v. Plotnick, 266 AD2d 108; Ferraro v. Ferraro, 257 AD2d 596, 597).
Under the extant circumstances, the Wife shall be entitled to maintenance from the Husband. The parties had an 18 year marriage, characterized by the Wife being a homemaker and parent from the time the children were born. Throughout the marriage, the Husband’s business has been the primary source of financial support for the family. His earnings permitted the continuance of a business, the purchase of the marital residence and the maintenance of the family’s lifestyle. Although the Husband alleges several medical problems,5 no evidence has been submitted as to the permanency of any medical condition which would support any diminution in his earning capacity or financial circumstances in the future. Although the Husband’s testimony regarding his finances left much to be desired, this court already imputed income of $100,000 per year to him, and finds that he has demonstrated during the years a favorable earning ability and capacity, and should so continue in the future given his age and
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connections, until his eventual retirement.
The Wife, on the other hand, has limited earning potential in the short and long term. The Wife was forced to return to work as a result of the Husband’s failure to pay his criminal court ordered maintenance and child support. She currently has full time employment earning a total of $59,000 per year. Even if the Wife finds full-time employment, her level of remuneration and opportunities of advancement do not compare to those of the Husband and would not provide a similar pre-separation standard of living. While the Wife lacks sufficient income and property, the Husband has sufficient income to provide for her reasonable needs (see Poli v. Poli, 286 AD2d 720, 723; Salermo v. Salermo, 142 AD2d 670, 672; see generally, Domestic Relations Law § 236[B][6][a][1-11]). Indeed, the distribution herein will not provide a sufficient cushion to the Wife and, as such, an award of durational maintenance to her is needed, even taking into account her earning ability, to maintain the pre-separation standard of living.
Upon the aforesaid criteria and considering the criminal evidence adduced at trial of the circumstances and prospects of the parties, the Court has reached the conclusion that the Wife is entitled to an amount of monthly maintenance from the Husband in the sum of $2,000 per month for a period of five years retroactively to the date of commencement of the action of October 11, 2001, resulting in a maintenance obligation to October 11, 2006. This sum is based upon, inter alia, the Husband’s current earnings and business, the parties’ pre-divorce lifestyle, the Husband’s required payment of pendente lite maintenance for four years, and the fact that the Wife is currently employed (see Graves v. Graves, 307 AD2d 1022; Taylor v. Taylor, 300 AD2d 298). The sums awarded herein for maintenance for the Wife shall be paid by the Husband by cash or check at the beginning of the month (see Domestic Relations Law § 236[B][6][a]), payable at the Wife’s residence or any such other place as she designates in writing to the Husband by certified mail, return receipt requested.
The total amount of maintenance payments to the Wife retroactive to the commencement of the action is $114,000 ($2,000 per month for 57 months). Although at trial there was no evidence of maintenance payments made, the law provides that the Husband shall take credits for sums voluntarily paid from his income during the pendency of this action and prior to the date of this decision, towards maintenance to the Wife, for which he has canceled checks or other similar proof of payment (see Fogarty v. Fogarty, 284 AD2d 300; Ferraro v. Ferraro, 257 AD2d 598; Verdrager v. Verdrager, 230 AD2d 644, 645). The Husband shall pay all remaining maintenance arrears in reasonable monthly installments as agreed upon between the parties, but in no event in installments of less that $2,000 per month.
The Husband’s obligation to pay maintenance shall terminate before the five years in the event of the Wife’s remarriage, her death or the Husband’s death. For that reason, the Husband is hereby further directed to obtain and maintain a life insurance policy to secure his obligation for maintenance ordered herein (see Corless v. Corless, 18 AD3d 493, 494; Comstock v. Comstock, 1 AD3d 307, 308). A life insurance policy in the fixed amount of $120,000 naming the Wife as beneficiary should be sufficient (see Fogarty v. Fogarty, 284 AD2d 300, 301-302).
VI. EQUITABLE DISTRIBUTION
Among the main issues to be resolved by the Court is the equitable distribution of the parties’ marital residence the only marital asset of value. The Husband requests an equal or 50-50 division of the marital residence, while the Wife claims the Husband should receive no distribution of the parties’ asset asserting his failure to comply with the court orders and abandonment of the family. In any event, the Wife contends that the marital residence is worthless given the accumulated indebtedness on same. This Court disagrees.
According to the Wife’s trial testimony of August 17, 2005, as a result of foreclosure proceedings taking place, she no longer owns the home, but that ABC Corporation purchased the home for her and allowed her to continue to maintain residence there with her children. Her mother testified that she has a contract with ABC and is responsible for the payment of rent on the house to ABC. The Wife testified she currently pays rent of $1,250 to ABC per month plus utilities and telephone. Despite the testimony of all parties as to the foreclosure of the residence by Greenpoint Bank, the deed to the property reflects that title is still held by the Wife and was never transferred to ABC.
Mr. Kay, a corporate officer of ABC Corporation and a non-practicing attorney, testified that ABC purchased the mortgage on the marital residence, which mortgage continues to accrue interest. Using the 10.75% mortgage rate and default mortgage payment rate of 15.75%, he computed that as of January 2002, ABC was owed over $900,000 in interest on the mortgage. In addition to the mortgage and interest, ABC also paid off tax liens on the property in November 2001, totaling $65,650 and has continued to pay the taxes of $13,000 per year. Since January 2002, ABC has received $1,250 monthly paid by either the Wife or her mother, which sum does not even cover monthly interest payments. They have no written agreement with the Wife nor did they ever pursue or intend to pursue a foreclosure action against the Wife.
Mr. Kay testified that using the stated interest rate and the default interest rate contained in the original terms of the mortgage, and crediting the payments by the Wife, there is accrued interest of over $1.5 million now owed on the original mortgage as computed between May 1993 and December 2005. The property itself has an appraised value in 2005 of only $760,000, thus according to ABC, there is no current equity in the property. However, according to Mr. Kay, ABC purchased the property as a “kind act,” and they are “not expecting someone to pay ABC $1,500,000 for something not worth it.” ABC never believed that the Wife had the means to pay off the mortgage and they never intended to evict her from the property. ABC has never received any money from the Husband.
Under the law of equitable distribution, there is a presumption that all property acquired by either spouse during the marriage is marital property (see Domestic Relations Law § 236[B][1][c]). This presumption is based on the contemporary legal concept that marriage “is an economic partnership” (Hartog v. Hartog, 85 NY2d 36, 47; O’Brien v. O’Brien, 66 NY2d 576,
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585), whose success depends both on the economic and non-economic contributions of each participant (see DeJesus v. DeJesus, 90 NY2d 643, 648). Those contributions might be direct, such as earnings of an employed spouse, or indirect, such as efforts of one spouse as a primary caretaker of the parties’ children, companion and homemaker (see Price v. Price, 69 NY2d 8, 11; Majauskas v. Majauskas, 61 NY2d 481, 489-490; Domestic Relations Law § 236[B][5][d][6]). And, just as business partners, the “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. Gelb, 163 AD2d 189, 191).
It is well settled law that where there is a long term marriage, and both spouses contributed to the economic and non-economic aspects of the marriage, “a division of marital assets should be made as equal as possible” (Miller v. Miller, 128 AD2d 844, 845; see, Olivo v. Olivo, 82 NY2d 202; Arvantides v. Arvantides, 64 NY2d 1033, 1034). Such is not the case when the marriage is short term or of less than twenty years in duration, where the division can take different permutations in the court’s discretion (see Rheinheimer v. Rheinheimer, 235 AD2d 742), depending on the parties’ contributions to the marital wealth (see Hathaway v. Hathaway, 16 AD3d 458, 459).
After considering these principles and the thirteen factors set forth in Domestic Relations Law § 236(B)(5)(d) in determining the appropriate equitable distribution of the marital property of the parties (see Holterman v. Holterman, 3 NY3d 1; Snow v. Snow, 14 AD3d 764; Rosenkranse v. Rosenkranse, 290 AD2d 685), this court finds that the Wife shall be entitled to retain the marital residence. It should be initially noted that this Court finds that the Wife is currently the sole title owner of the premises. In 1996, ABC generously paid the entire outstanding mortgage and interest of $387,000 to OCI and took an assignment of the mortgage. ABC did this for the specific purpose of making sure that Wife was able to keep the marital residence. The circumstances surrounding the payment of the mortgage and the parties’ expectations suggest that ABC is not expecting any payment from the parties or has pursued any foreclosure on the mortgage. In any event, it appears that ABC would be precluded by the six-year Statute of Limitations from foreclosing on the property against the Wife at this late stage (CPLR 213[4]). Since OCI accelerated the mortgage back in 1996, the Statute of Limitations began to run when the mortgagee’s predecessor in interest, OCI, elected to accelerate the mortgage, more than nine years ago (see EMC Mtge. Corp. v. Smith, 18 AD3d 602; Lavin v. Elmakiss, 302 AD2d 638, 639; Saini v. Cinelli Enters., 289 AD2d 770, 771, lv denied 98 NY2d 602; Loiacono v. Goldberg, 240 AD2d 476, 477).
That ABC appears to have essentially forgiven the mortgage indebtedness on the residence in the family’s favor does not end the question of equitable distribution as it may be considered marital property to be distributed between the Wife and Husband. Other criminal factors support the award of the marital residence to the Wife. As the custodial parent, the Wife needs to occupy and own the marital residence and to use its household effects. It has been consistently recognized by the courts of this State that there is an overriding need of a custodial parent and children to occupy and remain in the marital residence, which needs outweighs the non-custodial
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parent’s desire to receive any immediate proceeds from its sale (see Nissen v. Nissen, 17 AD3d 819; Mazzone v. Mazzone, 290 AD2d 495; Markopoulos v. Markopoulos, 272 AD2d 457). This is especially so when, as here, the children have deep roots in the community where they have lived for the majority of their life, have their friends and attend school or yeshiva there (Goldblum v. Goldblum, 301 AD2d 567; Waldman v. Waldman, 231 AD2d 710). Moreover, the award of durational maintenance to the Wife for five years from the date of commencement of the action should help her continue the payments of “rent” on the marital residence.
It has also being undisputed that the Wife has an equitable claim to the marital residence as a result of direct and indirect contributions “made in the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party.” During the entire marriage, the Wife tended to the children’s needs, including cooking, bathing, dressing and nurturing. She has been solely responsible to take the children’s to their school functions, tutorials, medical and dental appointments as well as the selection of their doctors. She alone attended to the children’s special needs and educational matters at Yeshivas. She also planned for the children’s social activities by arranging play dates and various extra-curricular activities to which she drives them.
In sum, her indirect contributions consisted of raising the children and maintaining a well organized home for her Husband conducive to his business success and mental well being. This Court must therefore recognize and compensate the Wife for the fact that she performed a valuable contribution in raising, socializing and educating the children while the Husband worked full-time in his career. She was a spouse, parent, confidant and social companion to the Husband. In addition, the Wife provided the solace and moral support “necessary to sustain [the Husband] in coping with the vicissitudes of life outside the home'” (Price v. Price, supra, at 14 [quoting Brennan v. Brennan, 103 AD2d 48, 52]).
In awarding what could be considered a disproportionate share of the marital estate to the Wife, the court can consider any other factor deemed appropriate under the extant circumstances. Sitting in equity, this court cannot be blind to the fact that the Husband has essentially emotionally and financially abandoned the Wife. He should not be allowed to profit from the value of the premises when he walked away from his responsibilities to pay the mortgage and carrying charges while at the same time finding monies to pay for cocaine. Although the Husband was knowledgeable of the need to contribute financially to the support of his Wife and children, there is clear evidence that he failed to do this in a regular and consistent basis during the pendency of the action. The failure of the Husband to understand the need of the children to have emotional and financial stability demonstrates a significant failure on his part in considering the well being of his family. This consistent failure coupled with the dissipation of monies to subsidize his addiction calls for additional compensation for the Wife. Moreover, by reason of the dissolution of the marriage, both parties will lose their rights as surviving spouses to share in pensions or any other individual retirement accounts as well as any rights of inheritance from the other.
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In accordance with the foregoing, this court finds that the Wife’s direct and indirect contributions to the Husband’s business and in maintaining a safe haven for the family’s well being through her domestic responsibilities entitles her to the marital residence in equitable distribution. Taking the present value of the property at the time of trial of $760,000 and subtracting the value of the mortgage at the time foreclosure of $387,000, leaves an equity to be equitably distributed of $373,000. Dividing that sum by two, yields an equitable distribution of $186,500 each. Faced with the Husband’s arrears of child support of $67,588, the Husband’s portion of the marital residence minus those arrears is hereby awarded to the Wife as an equitable distribution in kind award of $118,912.
VII. COUNSEL FEES
The Wife next requests that the Husband pays her counsel fees of $50,000 incurred during the pendency of this action, claiming that he was the sole cause of this matter languishing and necessitating a full trial. In opposition, the Husband argues that he possesses no income or assets sufficient to pay for his and his Wife’s counsel fees.
Domestic Relations Law § 237(a), permits the matrimonial court to award counsel fees to enable a spouse to carry on with or defend against a matrimonial action having regard to the circumstances of the parties and the complexities of the case. The determination is addressed to the sound discretion of the court and indigence is not a prerequisite to an award of fees (DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 88; Pascarelli v. Pascarelli, 283 AD2d 472, lv denied 96 NY2d 937). When there is a disparity of income between the parties, and tactics were used which unnecessarily prolonged the litigation, the titled spouse should be responsible for counsel fees despite the existence of a substantial equitable distribution award to the non-titled spouse (see Levy v. Levy, 4 AD3d 398; Sterling v. Sterling, 303 AD2d 290; Heilbut v. Heilbut, 297 AD2d 233). The court must consider, inter alia, the following factors: (1) the nature and extent of the services rendered; (2) the actual time spent; (3) the nature of the issues involved; (4) the professional standing of counsel, including background and experience; and (5) the financial circumstances of the parties (see Thomas v. Thomas, 221 AD2d 621, 623; Willis v. Willis, 149 AD2d 584; Silver v. Silver, 63 AD2d 1017, 1018).
Under the extant circumstances, however, the Wife’s request for counsel fees must be summarily denied as procedurally defective because she has failed to provide the Retainer Agreement between her and her counsel, an affirmation of counsel’s qualifications and the services rendered, or an updated Statement of Net Worth on her behalf (see 22 NYCRR 202.16[k][2]; Bertone v. Bertone, 15 AD3d 326; Matter of Fischer-Holland v. Walker, 12 AD3d 671). In any event, this Court believes that the Wife is not entitled to the payment of counsel fees by the Husband as, inter alia, her behavior throughout the litigation also contributed to the prolongation and contentiousness of this matter (see Levy, supra at 398; Krutyansky, supra, at 300), particularly with respect to visitation issues between the Husband and the children.
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VIII. CONCLUSION
The Court has examined and rejected all additional contentions not specifically addressed herein. In accordance with the foregoing, custody, visitation, equitable distribution, child support, maintenance, and all other ancillary issues are determined as set forth hereinabove. The Wife’s counsel is hereby ordered to submit a Judgment of Divorce and Findings of Fact forthwith consistent with the aforesaid to the Matrimonial Clerk’s office on notice to the Husband and his counsel within 60 days from the date below (see 22 NYCRR 202.48). Counsel are further directed to serve a copy of this decision insofar as relevant upon Dr. Calvin Haber.
This constitutes the decision, findings of fact and order of the Criminal Court.
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Notes:
1. The names of all parties have been fictionalized for purposes of publication.
2. (Tennessee Williams, A Streetcar Named Desire, at 418 [1947]).
3. In connection with the evidence presented herein, it is noteworthy that neither side called Dr. Kaplan to testify in connection with his forensic report which was admitted into evidence. Although the Court ordered an updated forensic report, the Husband did not cooperate with appointments for an updated evaluation despite the fact that he sought increased visitation. Moreover, neither side called Dr. Pierangelo, who had an opportunity to observe the family and their interaction.
4. This court is troubled by the Husband’s admissions in open court that he did not file income tax returns or pay income taxes, other than the preparation of a draft tax return for the tax year 2004 which had not been filed. The court is obligated to report admissions of possible tax evasion or fraud to the authorities (see Hashimoto v. Roz, 4 Misc 3d 1027 [Silbermann, J.]). Faced with these candid statements, this court believes it appropriate to forward a copy of this Memorandum Decision to the United States Internal Revenue Service for their review.
5. The Husband testified that his ability to earn money has been reduced as a result of health factors, including his diabetes for which he is taking medication. He underwent a surgical procedure on his right toe as a result of his diabetes in January 2003 at Maimonides Hospital whereupon he was hospitalized for three or four weeks. When released, he was on intravenous three times a day with eight weeks of intravenous treatments. He was once again hospitalized in July 2003 for chest pain, and had an angiogram. In July 2005, the Husband was hospitalized one month related to his diabetes. The Husband testified he is currently taking medication for his diabetes and a nurse would come to his home to change bandages and administer a PIC line. The bone on his right toe was removed in 2003. The bone on his left toe was removed as well, although the Husband does not require a cane for work and was able to walk.
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