Ettinger v. Ettinger
| Decision Date | 29 January 1981 |
| Parties | Andrea ETTINGER, Plaintiff, v. Lawrence ETTINGER, Defendant. |
| Court | New York Supreme Court |
Bechtle, Burruano & Tomich, Rockville Centre, for plaintiff.
Lawrence Ettinger, defendant, pro se.
The issues presented in this matter are of significance and of first impression in that they affect matrimonial actions in which a determination is to be made granting equitable distribution and/or distributive award and/or maintenance and support.
This matrimonial action was commenced under the equitable distribution law effective on July 19, 1980, wherein Domestic Relations Law § 236(B) applies and in which there has been no appearance or answer by the defendant. The summons and pleadings served by the plaintiff-wife in this case specifically reflect that the plaintiff is seeking, in addition to other relief, the equitable distribution of the marital property. In addition, as to the marital residence presently occupied solely by the defendant-husband, the plaintiff-wife in her summons specifically seeks exclusive possession of same, and in the complaint seeks exclusive use and occupancy of the marital domicile and its contents, together with title to said domicile and its contents.
At the outset the court finds that, where there is a default by a party in a matrimonial action seeking equitable distribution, the court may provide for the equitable distribution of marital property at an inquest without any further hearing. The court further finds that it is under a mandate pursuant to DRL § 236(B)(5), (6) to determine the respective rights of the parties in their separate or marital property, notwithstanding the fact that one of the parties has defaulted. For to do otherwise, simply because one side defaults, would give to the party choosing not to appear an advantage in defaulting and constitute a prejudice to the party seeking equitable distribution.
In determining an equitable disposition of property the court pursuant to DRL § 236(B)(5)(d), must consider the following factors:
(1) the income and property of each party at the time of marriage and at the time of the commencement of the action (2) the duration of the marriage and the age and health of both parties;
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(5) any award of maintenance under subdivision six of this part;
(6) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(7) the liquid or non-liquid character of all marital property;
(8) the probable future financial circumstances of each party;
(9) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
(10) any other factor which the court shall expressly find to be just and proper.
The statute makes no distinction between a contested matter and one in which there has been a default by one of the parties. The court appears to be required, even where there is an inquest taken on the non-appearance of a party, to consider the above factors when it equitably disposes of marital property in the final judgment. Indeed, the court must set forth the factors it considered and the reasons for its decision, and such may not be waived by either party or counsel. (see DRL § 236(B)(5)(g))
Likewise, with respect to an award of maintenance the statute provides in paragraph 6 of the DRL § 236(B) as follows:
6. Maintenance. a. Except where the parties have entered into an agreement pursuant to subdivision three of this part providing for maintenance, in any matrimonial action the court may order temporary maintenance or maintenance to meet the reasonable needs of a party to the matrimonial action in such amount as justice requires, having regard for the circumstances of the case and of the respective parties. In determining reasonable needs the court shall decide whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs and whether the other party has sufficient property or income to provide for the reasonable needs of the other. In determining the amount and duration of maintenance the court shall consider:
(1) the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;
(2) the duration of the marriage and the age and health of both parties;
(3) the present and future capacity of the person having need to be self-supporting;
(4) the period of time and training necessary to enable the person having need to become self-supporting;
(5) the presence of children of the marriage in the respective homes of the parties;
(6) the standard of living established during the marriage where practical and relevant;
(7) the tax consequences to each party;
(8) contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(9) the wasteful dissipation of family assets by either spouse and
(10) any other factor which the court shall expressly find to be just and proper.
It is noted here, too, with the question of maintenance, just as with the equitable disposition of marital property, where the court is required to determine the amount and duration of maintenance, it must consider certain factors in its determination. The exception here too exists when there is an agreement between the parties pursuant to DRL § 236(B)(3).
Section 236(B)(7) of the DRL deals with child support and provides in part as follows:
7. Child Support. a. In any matrimonial action, or in an independent action for child support, the court as provided in section two hundred forty of this chapter may order either or both parents to pay temporary child support or child support. The court shall not consider the misconduct of either party but shall make its award for child support after consideration of all relevant factors, including:
(1) the financial resources of the custodial and non-custodial parent, and those of the child;
(2) the physical and emotional health of the child, and his or her educational or vocational needs and aptitudes;
(3) where practical and relevant, the standard of living the child would have enjoyed had the marriage not been dissolved;
(4) where practical and relevant, the tax consequences to the parties; and
(5) the non-monetary contributions that the parents will make toward the care and well-being of the child.
In view of the requirements imposed upon the court by the provisions of DRL § 236(B)(5), (6) and/or (7), it becomes apparent even in a situation where there is a defaulting party that the record established must be at least as extensive to permit the court to make its determination based upon its consideration of the aforesaid factors as they apply to the relief granted.
With this in mind, then, prior to the inquest being taken the court required the plaintiff to submit a statement of particulars fairly tracking the subject matter which makes up the factors required to be taken into consideration. The plaintiff at the inquest then submitted into evidence her statement of particulars and testified along the lines of the provisions of DRL § 236(B)(5), (6) and (7) so that the court would have for its consideration a record complete enough to comply with the aforesaid statutory requirements. It is upon just such a record that the court bases its decision in this case.
The summons and complaint which were introduced into evidence reflect that the plaintiff seeks a judgment of absolute divorce based upon alleged cruel and inhuman treatment, as well as the following additional relief:
(1) Alimony (maintenance);
(2) Child Support;
(3) Counsel Fees;
(4) Custody of the infant issue;
(5) Exclusive possession of the marital abode;
(6) Equitable distribution of the marital property;
(7) Permission to resume use of the maiden name;
(8) Such other and further relief as to the court may seem just...
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