P.D. v. L.D.
| Decision Date | 09 September 2010 |
| Docket Number | No. 15225/08.,15225/08. |
| Citation | 28 Misc.3d 1232,2010 N.Y. Slip Op. 51574,958 N.Y.S.2d 62 |
| Parties | P.D., Plaintiff, v. L.D., Defendant. |
| Court | New York Supreme Court |
OPINION TEXT STARTS HERE
Anthony J. Pirrotti, Esq., Ardsley, Attorney for the Defendant.
Kaminsky & Rich, White Plains, Attorneys for the Plaintiff.
This action for divorce was commenced on July 10, 2008. A divorce was granted to the plaintiff after inquest on March 31, 2010 on the ground of constructive abandonment by the defendant. The defendant did not contest the plaintiff's testimony on divorce grounds and consented to the divorce. The trial on the ancillary issues of equitable distribution, maintenance, and child support immediately followed and continued over a period of five days. The only witnesses to testify were the parties and the plaintiff's cousin. At the conclusion of the trial, the Court reserved decision pending receipt of post-trial summations and memoranda of law, which were subsequently served and filed by both parties. The following papers were considered by the Court in rendering its decision:
Defendant's Trial Memorandum of Law
Plaintiff's Post–Trial Memorandum
Before the trial decision was rendered, the defendant moved by Order to Show Cause to re-open the trial to admit additional evidence, which application was opposed by the plaintiff. The following papers were considered in connection with the motion:
Defendant's Order to Show Cause, Affidavit, Affirmation, Exhibits1–21
Plaintiff's Affidavit in Opposition, Affirmation, Exhibits22–26
Defendant's Supplemental Affidavit, Exhibits27–31
Plaintiff's Supplemental Affidavit, Affirmation, Exhibits32–34
Plaintiff's Supplemental Post–Trial Memorandum, Exhibits35–37
After considering the testimony of the parties and the witness, the documents admitted into evidence, the parties' statements of proposed disposition, the parties' net worth statements, the memoranda of law, and the motion papers, the Court makes the following findings of facts deemed established by the evidence and reaches the following conclusions of law.
After inquest, the plaintiff is granted a divorce on the ground of constructive abandonment by the defendant.
The parties were married on May 27, 1984 and thereafter separated on February 20, 2007 when the defendant obtained an ex parte temporary order of protection against the plaintiff with a stay away provision. This action for divorce was commenced on July 10, 2008.
Since leaving the marital residence in 2007, the plaintiff has resided in a one-bedroom apartment in White Plains, New York, paying monthly rent of $1,478.00. He continued to pay the mortgage, utilities, and landscaping charges on the marital residence, as well as the college tuition and expenses for his daughter. He has also paid for his children's health insurance in the amount of $800.00 per month.
On June 15, 2009, the Hon. LaTia Martin, J.S.C., issued a pendente lite order essentially ordering the plaintiff to pay the defendant what he had already been paying voluntarily. Specifically, the order directed the plaintiff to pay the carrying charges on the marital residence, which included the mortgage in the amount of $1,332.73, real estate taxes of about $15,000.00 per year ($1,250.00 per month), utilities in the amount of $520.00 per month, homeowner's insurance in the amount of $170.00 per month, and household repairs, totaling about $3,272.73 per month. The order further directed the plaintiff to pay for their daughter's college tuition and expenses as and for child support. From April of 2008 to February of 2010, the plaintiff has paid $51,505.00 in college expenses, which amounts to about $1,921.04 per month. Justice Martin also awarded the defendant interim counsel fees from the plaintiff in the amount of $10,000.00. This amount, which was never paid, was thereafter reduced to a judgment. The plaintiff continues to pay for the children's health insurance expenses at about $800.00 per month.
In making its pendente lite award, the Court did not impute income to either party. However, the Court acknowledged that the plaintiff's expenses exceeded his reported income and therefore, Eisman, Zucker, Klein & Ruttenberg, LLP (“EZKR”) was appointed to conduct a neutral forensic evaluation of the plaintiff's business to estimate his income stream and the value of plaintiff's 50% interest in a hair salon as of December 31, 2008. The Court ordered the plaintiff to pay 100% of the cost for the valuation, subject to reallocation at the time of trial.
In order to pay the fees for the evaluation, the plaintiff claims he borrowed $10,378.00 from the Max Group through his cousin. He claims he still owes EZKR an additional $1,700.00 for the valuation, but does not have the financial means to pay the balance.
This case was transferred to this Court by administrative order as of January 1, 2010. The trial was held over a period of five days. The defendant seeks lifetime maintenance and child support for their daughter who is attending college. The assets to be considered in equitable distribution include the marital residence, plaintiff's business interest in his hair salon, a joint investment account with Opus Advisory Group (“Opus”), cash surrender values of life insurance policies, retirement accounts, bank accounts, and personal property. The defendant claims that she should be awarded the marital residence in equitable distribution based upon the plaintiff's economic fault in secreting and concealing assets. This claim, which the plaintiff denies, is discussed at length below.
Following the conclusion of the trial, but before decision was rendered, the defendant moved by Order to Show Cause to re-open the trial to submit additional evidence regarding the plaintiff's alleged “concealment of his finances, forging the defendant's signature to various accounts and transferring monies to his own personal account,” which evidence she claims was not available at the time of trial. In addition, the defendant submitted a supplemental affidavit informing the Court that she received a letter from her employer post-trial stating its intention not to renew her employment contract for the 2010–2011 school year.
The plaintiff opposes the motion upon grounds that the evidence the defendant seeks to introduce was disclosed during discovery and available to her prior to trial, but that defendant's counsel failed to act with due diligence during discovery to explore the issues. The plaintiff maintains that the defendant's post-trial motion is without merit and was made to delay the Court's decision to the plaintiff's detriment. The plaintiff objects to the admissibility of the letter from the defendant's employer regarding her employment status as hearsay. The plaintiff also maintains that the Court should not consider the defendant's post-trial affidavit as to her employment status, but should impute income to her based upon her earnings history. For the reasons set forth at length below, the defendant's motion to re-open the trial is denied.
The parties have two children, S.D., (DOB July 4, 1987), who is 24 years of age and emancipated, and A.D., (DOB February 12, 1990), who is 20 years of age. A.D. is a college student attending Hofstra University.
As of March 2010, the plaintiff was 56 years of age and the defendant was 48 years of age. Both parties appeared to be in relatively good health. Neither party presented proof nor argument that their health was a factor for the Court to consider on the issues.
The plaintiff has a high school equivalency diploma and attended one year of college, never attaining a college degree. He has been a licensed hairdresser for 39 years. In 1997, he invested $25,000.00 of marital funds to become a 50% owner of a hair salon located in White Plains, New York. The hair salon has about 16 employees, 10 of whom produce income. The remaining six employees are assistants or receptionists who are paid a salary, but do not produce income. Some of his employees earn more than $1,400.00 per week. Although the plaintiff charges the same for services as his employees, it is customary that clients do not tip owners. He works six days each week, cutting hair and maintaining the business.
According to the plaintiff's tax returns, he earned $45,166.05 in 2006, with a reported loss in partnership income of $2,039.00; he earned $49,180.81 in 2007, with a reported loss in partnership income of $843.00; and he earned $56,655.35 in 2008, with a reported gain in partnership income of $5,390.00. In 2009, the plaintiff stated in his response to interrogatories that he earned $70,000.00 per year. In his 2010 updated net worth statement, the plaintiff reported earning an annual income of $67,000.00.
The court-appointed neutral forensic financial evaluator, EZKR, valued the plaintiff's 50% share of the business at $106,000.00 and his income stream at $145,000.00 per year as of December 31, 2008. The evaluator's report was admitted into evidence without objection. Neither party called the evaluator as a witness at trial to test the validity of his conclusions by cross-examination. Nor did either party call their own expert to refute the neutral financial evaluator's findings.
Plaintiff's counsel argues that the income stream analysis is flawed in that it included as income the cost of health insurance benefits and a City of White Plains recreation fee that the hair salon pays to support a local soccer team. However, plaintiff's counsel has failed to submit competent proof to support his argument and the report indicates that EZKR considered these factors.
Conversely, defendant's counsel argues that plaintiff's income is in excess of $145,000.00. However, defendant's proof was also...
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