Jolis v. Jolis

• Decision Date: 30 October 1981
• Citation: 111 Misc.2d 965,446 N.Y.S.2d 138
• Parties: Albert E. JOLIS, Plaintiff, v. Eva Ortega JOLIS, Defendant.
• Court: New York Supreme Court

Page 138

446 N.Y.S.2d 138

111 Misc.2d 965

Albert E. JOLIS, Plaintiff, v. Eva Ortega JOLIS, Defendant.

Supreme Court, Trial Term New York County, Part 70.

Oct. 30, 1981.

William G. Mulligan of Mulligan & Jacobson, New York City, for plaintiff.

Arthur N. Field of Field, Lomenzo & Turret, P.C., New York City, for defendant.

LEONARD N. COHEN, Justice:

This matrimonial action involves the first trial in this City under § 236 Part B of the Domestic Relations Law (DRL) popularly referred to as the Marital Equitable Distribution Law, effective on July 19, 1980. Governor Hugh Carey, in approving this legislation, stated it "represents the most sweeping reform of the divorce laws in this State since the Divorce Reform Act of 1966." The Governor further said: "The bill recognizes that the marital relationship is also an economic partnership. Upon its dissolution, property accumulated during the marriage should be distributed in a manner which reflects the individual needs and circumstances of the parties regardless of the name in which such property is held. In addition, it permits awards of maintenance to be made to meet the reasonable needs of a party without regard to gender." Memorandum of Approval, June 19, 1980.

The procedure in this matrimonial action was as follows: The plaintiff (hereinafter referred to as the husband) commenced an action on May 12, 1977, for separation on the sole ground of cruelty. The defendant (hereinafter referred to as the wife) denied the allegations and sought alimony but did not assert a counterclaim for either divorce or separation. On July 14, 1980, the husband served a notice of intention to amend his complaint substituting a prayer for a judgment of divorce in lieu of separation.

The trial commenced in December, 1980. On December 5th, the Court granted the husband's motion to amend his complaint to seek a divorce. Subsequently, on December 8th, based on a written stipulation by the parties and the evidence at that time, the Court granted leave to the parties to amend their pleadings to request a dual divorce on the respective grounds of cruelty. Accordingly, the Court granted dual judgment of divorce on December 8, 1980. In addition, the stipulation permitted the parties to seek equitable distribution under DRL § 236 Part B (hereinafter referred to only by specific Subd.) and the husband accepted his wife's amended answer to this effect as a timely pleading as of December 8, 1980. Both parties waived any claim that equitable distribution should be denied on the ground that the action was deemed to have been commenced untimely, and also waived any bar of a court award for maintenance by reason of the wife's misconduct constituting grounds for the husband's judgment of divorce.

Left unresolved by the stipulation was the date of the commencement of the matrimonial action. Under subd. 1(c), marital property is defined as property acquired during the marriage and prior to the commencement of the "matrimonial action." The wife contends that as a matter of law, the December date of the stipulation and pleading amendments marks the "commencement of the matrimonial action" for the purpose of determining marital property and the equitable distribution of the appreciated value of her husband's separate property, the value of which increased substantially between 1977 and 1980.

The husband disputes the wife's contention and argues that the stipulation of December 8, 1980 was consented to solely for applying the new law retroactively to permit distribution in accordance with its terms, and to remove the old law alimony bar. He claims that as a matter of law, the commencement of his separation action on May 12, 1977, should be the governing date for all purposes of equitable distribution.

Subd. 5(a) provides that the Court shall determine the parties equitable entitlement to marital property in "certain matrimonial actions". A separation action is excluded therein from those matrimonial actions to which equitable distribution applies. This Court, therefore, finds that the legislature intended to defer the equitable distribution of marital assets belonging to separated spouses, as such an act of finality should be suspended until an action is commenced to dissolve the marriage. Consequently, both spouses are on notice that property acquired after the commencement of a separation action may still be subject to equitable distribution at a later date, should a dissolution of the marriage subsequently occur.

Following this logic in this action, which commenced in May 1977 as a separation action, it was not until July 14, 1980 when a notice of intention to amend the separation action to a divorce action was served that the wife was put on notice that this proceeding could result in the dissolution of the marriage. It was that point, according to the statutory framework, which acted as the terminus for the acquisition of property potentially subject to equitable distribution, for that was the point in time when a "matrimonial action" seeking to dissolve the marriage was commenced. It would be unjust to fix the commencement of the matrimonial action, as the wife in effect urges, on the actual date that the motion to amend was granted, December 5, 1980, since matrimonial practice requires that the disposition of such motions await trial. Nor is the husband's argument that but for the stipulation, the action would be controlled by the former law compelling. That is surely true, but under the stipulation the parties agreed to the application of the equitable distribution law and the statute is clear in this regard that the commencement of a separation action is not a termination point for the acquisition of marital property. Therefore, the Court finds that the commencement of the marital action for the purpose of equitable distribution is July 14, 1980.

A background of some of the uncontroverted marital circumstances is relevant. Both parties are highly educated, intelligent and articulate. The husband was British born and became a naturalized U.S. citizen in 1942. Prior to his marriage in 1938, he and his brother formed American Industrial Diamonds Inc. for the sale of industrial diamonds and the manufacture of diamond tools in the United States and Canada, with its working capital provided by their father, who was a prosperous businessman in the world-wide diamond mining and distribution field. This company later was absorbed by merger into Diamond Distributors Inc. (hereinafter referred to as DDI) engaged in the importing, sales, mining and marketing of diamonds in the United States and abroad. The husband's background reflects a prosperous mercantile and well-established tightly knit family, with international, social, professional and commercial relationships, which were and still are influential in the world-wide diamond business. Dominating the family was the husband's deceased father, in control of various American and international diamond enterprises. Upon his death, the husband's uncle, his mother's brother, assumed control in the line of succession under the family tradition. Since 1977, the husband has been the President and Chief Executive Officer of this continuing and flourishing diamond business. His brother, Bernard, and the parties' two eldest sons are also in this business, following the DDI tradition.

In 1980, the husband earned an annual salary of $150,000 and concededly an additional $30,000 from investments. Plaintiff estimates his 1981 total annual earning as $208,136.

The wife, born in New York City of a Spanish father and French mother, was graduated from Hunter College. She is a natural linguist, fluent in English, Spanish, French and thoroughly familiar with German, Portugese and Russian. Prior to marriage she was a successful chanteuse in the United States and Canada with a potential movie career, earning in 1939, an average of $500 weekly. At the Maisonette Russe Club in New York's St. Regis Hotel, where she was appearing as a singer, the parties met and fell in love. Shortly thereafter, they married in November, 1939, in this City.

The circumstances of the wife's background also involve a tightly knit family, but lacking a commercially successful family anchor, as in the case of her husband. The wife, as the evidence showed, assumed the responsibility prior to and during marriage for caring for her family, particularly her handicapped sister, the education of one brother and the support of another brother who is currently incapable of earning a livelihood.

At the time of marriage, the husband knew of his wife's promising career and earnings, her family's needs and her feelings of responsibility to them. The husband at that time may have been earning less than she, but nevertheless he had the resources and potential security of a successful family business tradition to rely upon, which she lacked. Whether or not it was upon the husband's insistence, the fact is, that the wife gave up her career upon her marriage to be a wife and mother of four sons, now aged 37, 34, 32 and 27 to whom both parties have been and still are devoted.

Those facts remaining undisputed, the Court will now consider the issues raised during trial in the following sequence:

I--the type of property, marital or separate, subject to equitable distribution or a distributive award and the values thereof,

II--the equitable distribution of appropriate property or the equitable distributive award, if appropriate, including the wife's entitlement to certain forms of special relief,

III--the award of maintenance.

I. PROPERTY: Marital and Separate

The Court first focuses consideration on the issue of the type of property, marital or separate, which is subject to equitable distribution and the values thereof. The relevant provisions of the law in this regard are as follows: Subd. 5(a) provides that "... the court, in an action wherein all or part of the relief granted is divorce ......