Alice M. v. Terrance T.

• Decision Date: 23 December 2015
• Docket Number: XX/15
• Citation: Alice M. v. Terrance T., 2015 NY Slip Op 51913(U), XX/15 (N.Y. Sup. Ct. Dec 23, 2015)
• Parties: Alice M., Plaintiff, v. Terrance T., Defendant.
• Court: New York Supreme Court

2015 NY Slip Op 51913(U)

Alice M., Plaintiff, v. Terrance T., Defendant.

XX/15

Supreme Court, Kings County

Decided on December 23, 2015

Stephanie M. Baez, Esq.

Anna E. Ognibene, Esq.

Her Justice

Attorneys for the Plaintiff

100 Broadway

New York, New York 10005

Terrance T.

Pro Se Defendant

Clinton Correctional Facility

P.O. Box 2000

Dannemora, New York 12929

Jeffrey S. Sunshine, J.

Introduction

The issue before the Court is whether defendant-husband, who is serving a forty (40) years prison sentence following conviction of rape in the first degree against plaintiff-wife, is entitled to maintenance, equitable distribution and counsel fees.¹

This matrimonial action was tried on March 18 and 19, 2015.Defendant-husband, Terrance T., appeared pro se having been produced in Court from the Clinton Correctional Facility.The Court, on numerous occasions, informed defendant of his right to counsel and the risks associated with representing himself.The Court directed that post-trial summations be served and provided to the Court by May 19, 2015.

The parties were married September 16, 2002.Plaintiff Alice M., 52, commenced the instant divorce action on September 30, 2011 against the defendant Terrance T., 42.The issues presently before the court are grounds for divorce, maintenance, equitable distribution, and counsel fees.

Grounds for Divorce

Plaintiff's complaint, dated November 9, 2011² , seeks a divorce on the grounds of irretrievable breakdown of the marital relationship for a period of six (6) months.Plaintiff filed a sworn statement as part of her verified complaint, pursuant to DRL§ 170(7), that the marriage has irretrievably broken down for a period in excess of six (6) months.

Defendant filed a verified answer dated November 23, 2011, containing a cross-claim for divorce on the grounds of cruel and inhuman treatment allegedly because, he avers, plaintiff"falsely accused" him of domestic violence and rape.Defendant's verified answer, pro se, asserts the following:

"I Terrance T. am counter claiming the grounds of divorce as follows: Cruel and inhuman treatment DRL 170(1).Whereas on or about June 29, 2008, the plaintiff falsely accused defendant of domestic violence resulting in false arrest.Whereas on or about October 11, 2011the plaintiff again falsely accused the defendant of assault and rape resulting in false arrest and conviction.Whereas the plaintiff willingly committed perjury in open court as well as on legal documents to the Courts(as well as numerous incidents of mental cruelty).

It is also my contention to ask for fair and equitable distribution of marital property, payment in spousal support, relocation cost and contribution of health coverage.Since the defendant was a student at times and provided domestic upkeep for the household throughout the years of marriage, I am asking for one-half the value of: 1) the bedroom set; 2) the living room set' 3) the household television; 4) spousal support and relocation stipend; 5) a percentage of the plaintiff's retirement package; 6) life insurance; and 7) health care coverage."

Effective October 10, 2010, the New York legislature adopted DRL §170(7) which provides that "[a]n action for divorce may be maintained by a husband or wife to procure a judgement divorcing the parties and dissolving the marriage on any of the followings...[t]he relationship between husband and wife has broken down for a period of at least six months provided that one party has so stated under oath..."(NY Dom.Rel. Law § 170[McKinney 2015]).

The Appellate Division, First Department, has ruled that a spouse's statement under oath that the marriage has been irretrievably broken for a period of six months is, by itself, sufficientto establish a cause of action for divorce as a matter of law ( Hoffer-Adou v. Adou, 121 AD3d 618, 997 N.Y.S.2d 7[1 Dept.,2014];NY Dom. Rel. Law§ 170[McKinney]).Furthermore, the Appellate Division, Fourth Department held in Trbovich v. Trbovich, 122 AD3d 1381, 1382, 997 N.Y.S.2d 855, 857[4 Dept.,2014]"that the opposing spouse in a no-fault divorce action pursuant to Domestic Relations Law § 170(7) is not entitled to litigate the other spouse's sworn statement that the relationship has broken down irretrievably for a period of at least six months ( seePalermo v. Palermo, 35 Misc 3d 1211[A], 2011NY SlipOp. 52506[U], [Sup Ct, Monroe County2011];affd.100 AD3d 1453[4 Dept.,2012];see e.g.Rinzler v. Rinzler, 97 AD3d 215, 218, 947 N.Y.S.2d 844[3 Dept.,2012];A.C. v. D.R., 32 Misc 3d 293, 306, 927 N.Y.S.2d 496[Sup Ct, Nassau County2011])."

Here, it is clear to the Court that defendant seeks, by way of his counterclaim, to collaterally attack his criminal conviction for first degree rape of plaintiff during the marriage.Defendant admitted at trial that he was sentenced to a forty (40) years prison term for raping plaintiff during the marriage.Defendant provided no testimony or documentary evidence at trial as to whether he is eligible for parole before his forty (40) year sentence is complete in 2050.

The standard of proof in a criminal action is "beyond a reasonable doubt" while the standard of proof in a civil action is "by a preponderance of the credible evidence"(NY Crim. Proc. Law § 70.20[McKinney 2015]).Defendant was convicted in the criminal proceeding against him which means that the prosecution met the higher standard of "beyond a reasonable doubt."As such, the conviction for rape in the first degree cannot be attacked by a counterclaim for a divorce on the grounds of cruel and inhuman treatment in this civil proceeding.It is well-established that a criminal conviction, whether by plea or after trial, is conclusive proof of its underlying facts in a subsequent civil action and collaterally estops a party from relitigating the issue (see generallyMaiello v. Kirschner, 98 AD3d 481, 949 NYS2d 200[2 Dept.,2012]).All that is required to give collateral estoppel effect to a criminal conviction is that there be an identity of issues in the criminal and subsequent civil actions and that the defendant have had a full and fair opportunity to contest the issues raised in the criminal proceedings (see generallyPeople v. Plevy, 52 NY2d 58, 436 N.Y.S.2d 224[1980];see alsoGilberg v. Barbieri, 53 NY2d 285, 441 NYS2d 49[1981]).

As such, defendant is collaterally estopped from attacking his criminal conviction in this civil action.Defendant's counter claim for divorce on the grounds of cruel and inhuman treatment by plaintiff is denied.

Plaintiff's application for a divorce on the ground of an irretrievable breakdown in the marital relationship for a period of in excess of six months, is granted.The Court notes that all ancillary issues between the parties are decided herein in compliance with DRL §170(7).

Credibility

It is well established that the "trial court, which had the opportunity to view the demeanor of the witnesses, was in the best position to gauge their credibility"(Massirman v. Massirman, 78 AD3d 1021, 911 N.Y.S.2d 462[2d Dept2010], quotingPeritore v. Peritore, 66 AD3d 750, 888 N.Y.S.2d 72[2d Dept2009];see alsoVarga v. Varga, 288 AD2d 210, 732 N.Y.S.2d 576[2d Dept2001], quotingDiaco v. Diaco, 278 AD2d 358, 717 N.Y.S.2d 635[2d Dept2000];Ferraro v. Ferraro, 257 AD2d 596, 684 N.Y.S.2d 274[2d Dept1999]).It is also well-established that "[i]n a non-jury trial, evaluating the credibility of the respective witnesses anddetermining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion"( Goldstein v. Guida, 74 AD3d 1143, 904 N.Y.S.2d 117[2d Dept2010], quotingIvani v. Ivani, 303 AD2d 639, 757 N.Y.S.2d 89[2d Dept2003], quotingL'Esperance v. L'Esperance, 243 AD2d 446, 663 N.Y.S.2d 95[2d Dept1997];see alsoSchwartz v. Schwartz, 67 AD3d 989, 890 N.Y.S.2d 71[2d Dept2009];Krutyansky v. Krutyansky, 289 AD2d 299, 733 N.Y.S.2d 920[2d Dept2001]).

The trial court's assessment of the credibility of witnesses and evidence is afforded great weight on appeal (seeAlper v. Alper, 77 AD3d 694, 909 N.Y.S.2d 131[2d Dept2010];see alsoMassirman v. Massirman, 78 AD3d 1021, 911 N.Y.S.2d 462[2d Dept2010];Schwartz v. Schwartz, 67 AD3d 989, 890 N.Y.S.2d 71[2d Dept2009];Jones-Bertrand v. Bertrand, 59 AD3d 391, 874 N.Y.S.2d 152[2d Dept2009];Wortman v. Wortman, 11 AD3d 604, 783 N.Y.S.2d 631[2d Dept2004]).

During trial, plaintiff testified credibly that defendant engaged in extreme acts of physical and sexual violence against her during the marriage.The Court recognizes that in testifying in this matrimonial action plaintiff was forced to recount the devastating, demoralizing and degrading acts defendant committed against her.

The Court finds that plaintiff's testimony was credible and compelling.The Court finds that defendant's testimony was not credible.Defendant attempted to utilize this proceeding to attack his prior conviction.The Court finds defendant's attempts to do so inappropriate and a malicious and vexing attempt to cause plaintiff further emotional distress.Clearly, defendant refuses to acknowledge his violent crime against plaintiff during the marriage.

Equitable Distribution

The only marital assets subject to equitable distribution in this matter are: plaintiff's retirement benefits; some household furniture; and marital debt totaling approximately $38,000.

Plaintiff testified that during their marital relationship defendant"barely" contributed financially to the marriage.Plaintiff acknowledges that the defendant received food stamps from the government during the marriage, but she contends that he would use the food stamps for himself and forced her to pay for her own food.The record established that defendant was incarcerated or living in a men's shelter for more than half of the parties' marriage before he was convicted of raping plaintiff and sentenced to forty (40) years in prison.

Plaintiff testified that the parties' marriage was...