Mojdeh M. v. Jamshid A.
| Decision Date | 04 July 2012 |
| Citation | 36 Misc.3d 1209,2012 N.Y. Slip Op. 51236,954 N.Y.S.2d 760 |
| Parties | MOJDEH M., Plaintiff, v. JAMSHID A., Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Bernadette M. Davidson, Esq., Caruso, Caruso & Branda, Brooklyn, for Plaintiffs.
George Gilmer, Esq., Brooklyn, for Defendant.
The instant action for divorce was commenced on December 27, 2007. The ancillary issues were tried on November 5, 2010, November 18, 2010 and June 6, 2011. The wife submitted plaintiff's written summation, dated September 9, 2011. The husband submitted defendant's written summation on September 28, 2011. The wife thereafter replied to the husband's summation on September 30, 2011. The issues presently before the court are: (1) maintenance; (2) child support; (3) equitable distribution; and (4) counsel fees.
* Publication version edited for privacy.
The parties were married on October 21, 1996 in a religious ceremony. The husband is 56 years of age and the wife is 41 years of age. The parties have one (1) child who is 11 years of age, born in May 2002. The parties are each in good health. They have each earned graduate degrees. The wife attended medical school prior to the parties' marriage in Iran. During the marriage, the wife passed the United States medical boards, earned her internal medicine certificate, completed a four (4) year medical residency program, worked in private practice for one (1) year and then completed her three (3) year fellowship in gastroenterology in 2008. The husband holds two (2) masters degrees; one in education in research and management and another in industrial engineering. Prior to the parties marriage the husband worked as a professor and engineer. During the first two (2) years of the marriage, he worked sporadically, thereafter, he stopped working altogether and has been unemployed ever since.
The wife was granted a divorce on the grounds of constructive abandonment after a trial before Special Referee Charmaine Henderson on November 25, 2008.
Pursuant to the oral decision of this court, after an extensive trial, on June 23, 2010, the wife was awarded custody of the parties' child. The husband was awarded visitation with the child. An interlocutory judgment of custody and visitation was signed on September 13, 2010. This court found in its oral decision at the conclusion of the custody trial that the Administration for Children's Services (ACS) investigated a physical altercation between the husband and the parties' child which involved twisting and choking of the child. The case was “indicated” by ACS and concluded with an adjournment in contemplation of a dismissal (ACD).
According to the wife's 2009 tax return her annual income was $253,011.00. Although no 2008 tax return was submitted, the wife's 2008 W–2 the hispital itemizes the wife's wages at $34,446.53. However, the wife's affidavit of net worth dated September 22, 2010 has a federal income tax summary annexed to her 2009 tax return. This summary indicates that the wife's income in 2008 was $124,747.00. The wife did not submit her 2010 tax return and it is not before this court. The wife submitted three (3) separate affidavits of net worth dated June 16, 2008, January 20, 2009 and September 22, 2010. In accordance with these affidavits of net worth, the wife's annual income was $252,996.00, $150,000.00, and $61,767.84 respectively. These affidavits itemize the following information:
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The affidavits each show a corresponding increase in the wife's monthly income, monthly expenses, assets and liabilities. At trial, the wife testified that the change in her income was due to her change in employment from her fellowship at the hospital to working in private practice. The increase in the wife's assets was due to her changing her life insurance policy coverage in 2009 from $500,000.00 to $1,500,000.00, and the difference in liability reflected the fluctuation in her credit card debt.
The wife's affidavits of net worth itemize the wife's monthly expenses as follows:
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Editor's Note: The preceding image contains the reference for footnote 1.
In the wife's most recent affidavit of net worth, her total monthly expenses are $11,621.00 which is $139,452.00 annually.2 In addition, the wife also projected in her affidavit two (2) other educational costs that she did not include in this calculation of her net worth but that she affirms will be a part of her expenses as of September 22, 2010, when the son begins math tutoring and speech therapy classes costing $200.00 and $560.00 a month respectively. The wife's testimony at trial is consistent with her affidavit of net worth.
The husband's first affidavit of net worth, dated June 30, 2008, indicates that he is unemployed, with no assets or liabilities and $4,155.00 in monthly expenses. In his amended, September 21, 2010, affidavit of net worth, the husband remains unemployed, with no assets or liabilities, and indicates that his monthly expenses are $1,005.00. The affidavits itemize the husband's monthly expenses as follows:
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Editor's Note: The preceding image contains the reference for footnote 3.
In his most recent affidavit of net worth dated September 21, 2010, the husband's total monthly expenses are $1,005.00 which is $12,060.00 annually. At trial, the husband testified that his monthly expenses were as follows: (1) $600.00 in rent; (2) $400.00 in food; (3) $100.00 in transportation 4; (4) $100.00 for clothes for a year; which is approximately $8.50 a month; and (5) between $100.00 and $200.00 a month for unexpected expenses. The husband testified that his monthly expenses range from approximately $1,208.50 to $1,308.50. It should be noted that the husband does not offer an explanation for the inconsistencies in his affidavits of net worth and his testimony at trial. The husband also testified that he wanted to move out of his current apartment and rent another that costs the same amount as the wife's apartment.
In accordance with the parties' joint tax returns the parties' annual income was $61,788.57 in 2007;$57,717.82 in 2006; $103,275.35 in 2005; and $105,580.74 in 2004. Each of the parties' joint tax returns lists the wife as the sole earner and lists the husband as unemployed.
The wife testified that she was a medical resident from 2000–2004 and earned an annual salary of $45,000.00. As a resident, however, the Chairman of the Department allowed the wife to work extra shifts, moonlighting in the emergency room to earn more money, as she was the sole breadwinner supporting the family. The wife testified that after she completed her residency in 2004, she worked as an attending intern for one year, and earned an annual salary of $110,000.00. Thereafter, the wife completed her fellowship in gastroenterology in three (3) years where she earned an annual income starting at $60,000.00 which increased to $65,000.00. The wife testified that unlike a resident, a fellow's work hours are regulated and, therefore, she was prohibited from working extra shifts. This prohibition explains the downward shift in her income in the joint tax returns from 2004, when it was $105,580.74, through 2007 when it was $61,788.57.
The wife testified that her fellowship ended in 2008, which concluded her required medical training. In July of 2008, she began working for her current employer, [redacted], MD, PC. In 2009, the wife's reported income was $253,011.00. The wife testified that although her training was completed and she was, therefore, able to increase her fees per patient visit, her expenses simultaneously increased. The wife had the additional expense of office space, medical malpractice insurance, health insurance and an office assistant.
The husband, other than his temporary contracting jobs at the beginning of the marriage and his work at McDonald's in Michigan from 1997 to 1998, and one (1) work day in New York at a Wall Street job, has been consistently unemployed and contributed no income for the duration of the parties' marriage. The wife testified that the husband's refused to search for gainful employment even though he holds two (2) master degrees and was a considerable cause of strife and disagreement between the parties. Although the husband testified that it was the wife who did not want him to work, the wife refuted the husband's testimony by testifying that she tried to help him find a job by introducing him to her brother's friend who had two (2) positions and who asked the husband for his resume, but he refused to comply. The wife testified that she knew the husband could work a decent job because he was employed steadily from 1989 to 1995, prior to their marriage. The husband testified, and his resume indicates, that he worked as an engineer in a technology center in Rochester, Michigan, and then at [redacted] also in Michigan.
The wife also testified that the husband's unemployment did not benefit her, but, rather, hurt her because the family was in need of the additional income. She testified that at the beginning of the marriage in 1998, she sought employment as a medical assistant in Warren, Michigan at a hospital while studying for the medical boards because her husband's erratic employment was not producing a stable source of income sufficient to support the family. After the parties moved to New York in 2000, the husband remained unemployed and told the wife that she should get a second job, which she did to make some extra money. In addition to the financial strain from the husbands not working, the wife testified that she was embarrassed by her husband's daily routine of staying home because in her culture a man is supposed to work. To compensate, the wife lied to her colleagues, neighbors and family...
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