Masri v. Masri, 1557/2016.

• Decision Date: 13 January 2017
• Docket Number: 1557/2016.
• Citation: 55 Misc.3d 487,50 N.Y.S.3d 801
• Parties: Esther R. MASRI, Plaintiff, v. Joseph Habib MASRI, Defendant.
• Court: New York Supreme Court

55 Misc.3d 487
50 N.Y.S.3d 801

Esther R. MASRI, Plaintiff,
v.
Joseph Habib MASRI, Defendant.

1557/2016.

Supreme Court, Orange County, New York.

Jan. 13, 2017.

50 N.Y.S.3d 802

Eric Ole Thorsen, New City, for plaintiff.

Joseph Habib Masri, defendant pro se.

CATHERINE M. BARTLETT, J.

55 Misc.3d 488

A trial in this contested matrimonial action was conducted on September 28, 2016 on the issues of (1) grounds for divorce, (2) spousal maintenance, and (3) child support. Plaintiff appeared with her attorney, Eric Ole Thoreson, Esq. Defendant appeared pro se. The parties were the only witnesses at trial. Plaintiff in addition produced documentary material (Exhibits "1" through "23") which was received in evidence. Based on the credible evidence adduced at trial, the court finds as follows.

The parties are both Orthodox Jews. They married on August 7, 2002, separated in July 2007 and have lived separate and apart since that time. A prior Judgment of Divorce, granted to Plaintiff in New York County in 2009, was vacated on Defendant's application on February 2, 2011. A separation action commenced by Plaintiff in Orange County in November 2015 was thereafter discontinued, and Plaintiff commenced the present action for a divorce pursuant to Domestic Relations Law § 170(7) on March 8, 2016.

Throughout this lengthy period of matrimonial litigation, Plaintiff has attempted without success to secure from Defendant a "Get", which she requires under Jewish law in order for her to remarry. Documentary evidence establishes that Defendant refused to participate in proceedings in 2012 before a Rabbinical Court, asserting that Plaintiff had waived her right to rabbinical arbitration by going to a secular court. The Rabbinical Court advised Defendant that he had no power to decide the issue of Plaintiff's alleged waiver on his own, and was required to arbitrate that issue before the Rabbinical Court. Defendant refused to comply, whereupon the Rabbinical Court declared him to be a "Rabbinical Court evader."

Plaintiff is 33 years of age and in good health. She is employed as a teacher's

50 N.Y.S.3d 803

aide. Although her 2015 tax return reflects a total income of $11,656.00, she acknowledges gross income of $18,000.00 annually. Defendant is 33 years of age, Yeshiva educated, and in good health. Although he claims that

55 Misc.3d 489

he is unemployed, Defendant did not respond to Plaintiff's discovery demands and trial subpoena, and has thus failed to comply with his financial disclosure obligations in this proceeding. While his 2015 tax return reflects a total income of only $3,813.00, credit card statements and rental car records (obtained independently for trial by Plaintiff) evidence undisclosed financial resources and employment on Defendant's part.

There are two children of the relationship, Y.M., aged 14 (d/o/b xx/xx/2002), and S.M., aged 11 (d/o/b xx/xx/2004). Y.M. is disabled and resides in an institutionalized setting at the expense of the state. S.M. has resided with Plaintiff since the parties' separation. Plaintiff has temporary physical custody of the children pursuant to an order of the Orange County Family Court. Custody and visitation issues are being litigated in Family Court.

Grounds for Divorce

Plaintiff has pleaded and proven a cause of action for divorce pursuant to Domestic Relations Law § 170(7).

Spousal Maintenance

1. General Principles

" ‘The amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts' (Wortman v. Wortman, 11 A.D.3d 604, 606, 783 N.Y.S.2d 631 )." Signorile v. Signorile, 102 A.D.3d 949, 950, 958 N.Y.S.2d 476 (2d Dept.2013). "The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting." Castello v. Castello, 144 A.D.3d 723, 41 N.Y.S.3d 250, 254 (2d Dept.2016).

"[A]n award of maintenance is not determined by actual earnings, but rather by earning capacity." Scher v. Scher, 91 A.D.3d 842, 848, 938 N.Y.S.2d 317 (2d Dept.2012) ; Arrigo v. Arrigo, 38 A.D.3d 807, 808, 834 N.Y.S.2d 534 (2d Dept.2007). "In determining a party's maintenance or child support obligation, a court need not rely upon the party's own account of his or her finances (see Khaimova v. Mosheyev, 57 A.D.3d 737, 871 N.Y.S.2d 212 ; Peri v. Peri, 2 A.D.3d 425, 767 N.Y.S.2d 846 )." Weitzner v. Weitzner, 120 A.D.3d 1406, 1407, 992 N.Y.S.2d 576 (2d Dept.2014). " ‘[W]here a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed.’ (Scammacca v. Scammacca, 15 A.D.3d 382, 790 N.Y.S.2d 482 )." Castello v. Castello, supra.

55 Misc.3d 490

Thus, "[t]he court may impute income to establish the party's support obligation (see Domestic Relations Law §§ 240[1–b][b][5] [iv] ; 236[B][5–a][b][4][a]; Wallach v. Wallach, 37 A.D.3d 707, 708, 831 N.Y.S.2d 210 )." Weitzner v. Weitzner, supra, 120 A.D.3d at 1407, 992 N.Y.S.2d 576. "An imputed income amount is based, in part, upon a parent's past earnings, actual earning capacity, and educational background." Morrissey v. Morrissey, 259 A.D.2d 472, 473, 686 N.Y.S.2d 71 (2d Dept. 1999) ; Zwick v. Kulhan, 226 A.D.2d 734, 641 N.Y.S.2d 861 (2d Dept. 1996). Among the various factors relevant to a determination of imputed income are (1) "demonstrated earning potential" (see, Gorelik v. Gorelik, 71 A.D.3d 730, 731, 895 N.Y.S.2d 717 [2d Dept.2010] ; Wallach v. Wallach, supra ); (2) evidence that a "spouse's actual income and financial resources were greater than what he or she reported on his ... tax returns" (Weitzner v. Weitzner, supra; see,

50 N.Y.S.3d 804

Wallach v. Wallach, supra ); and (3) the party's failure to provide financial disclosure (see, Farag v. Farag, 4 A.D.3d 502, 503, 772 N.Y.S.2d 368 [2d Dept.2004] ; S.A. v. K.F., 22 Misc.3d 1115(A) at *18, 2009 WL 212566 [Sup.Ct. Kings Co.2009] ; Janet O. v. James O., 13 Misc.3d 1225(A) at *4, 2006 WL 2977563 [Sup.Ct.N.Y.Co.2006] ; cf., Maybaum v. Maybaum, 89 A.D.3d 692, 697, 933 N.Y.S.2d 43 [2d Dept.2011] ).

2. Domestic Relations Law § 236B(6)

This matrimonial action, commenced on March 8, 2016, is governed by the amended Domestic Relations Law ("DRL") § 236B(6) effective January 23, 2016.

DRL § 236B(6)(c) establishes a formula for determining "the guideline amount of post-divorce maintenance." Section (e)(1) provides that the court "shall order the post-divorce maintenance guideline obligation up to the income cap ... unless the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate" based upon consideration of one or more of 15 enumerated factors. Section (f)(1) establishes an "advisory schedule" for determining the duration of post-divorce maintenance. Whether or not the court uses the advisory duration schedule, it must per Section (f)(2) consider the discretionary (e)(1) factors in determining the duration of post-divorce maintenance.

Finally, DRL § 236B(6)(o ) provides:

In any decision made pursuant to this subdivision the court shall, where appropriate, consider the effect of a barrier to remarriage, as defined in subdivision ‘6’ of Section 253 of this

55 Misc.3d 491

Article, on the factors enumerated in paragraph ‘e’ of this subdivision.¹

3. Plaintiff's Proposal For Post–Divorce Maintenance

Plaintiff represents, and Defendant does not effectually deny, that Defendant has repeatedly refused to provide Plaintiff with a "Get." According to Plaintiff, the effect of Defendant's refusal is as follows:

Until such time as the defendant gives plaintiff a Get, even if the plaintiff has a secular judgment of divorce, she will still be considered married to the defendant, she has no ability to remarry, nor can she have children from another relationship. If she violates this law, she is considered an adulteress, and a child born to such a "married" woman from a subsequent relationship is deemed to be a "mamzer."

A "mamzer" is forbidden to marry another Jew, and the "mamzer" may also not marry a Gentile, as he/she is still

50 N.Y.S.3d 805

considered to be a Jew—a "mamzer" is permitted to marry only another "mamzer." Furthermore, progeny of "mamzerim" are also considered "mamzerin" for four subsequent generations, and they, too, are forbidden to marry anyone other than mamzerim. This stigma is imposed on all descendants of a woman who gives birth to the child of a man while still married to her previous husband,

55 Misc.3d 492

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