R.I. v. T.I.
| Decision Date | 17 August 2018 |
| Docket Number | XXXXX |
| Citation | 60 Misc.3d 1226 (A),110 N.Y.S.3d 499 (Table) |
| Parties | R.I., Plaintiff, v. T.I., Defendant. |
| Court | New York Supreme Court |
Elliot Green, Esq., Attorney for Plaintiff, 32 Court Street, Suite 404, Brooklyn, New York 11201
David Seidemann, Esq., Attorney for Defendant, 974 East 27th Street, Brooklyn, New York 11210
This Court is called upon, in a short-term marriage, to determine inter alia the issues of refusal to remove barriers to remarriage, maintenance, child support, equitable distribution and counsel fees. The plaintiff, a physician, extensively commingled personal and business assets, invoked his Fifth Amendment right against self-incrimination related to specific financial issues, attempted to make a mockery of the judicial process, which he commenced, and acted in a manner designed to degrade the defendant; however, in doing so, he destroyed his own veracity and credibility.
The issues before the Court in this action for divorce are maintenance, child support for the parties' one (1) minor child, equitable distribution and counsel fees.
The parties were married in a religious ceremony on March 27, 2014 and they have one (1) child who was born in October 2015. Plaintiff commenced this divorce action on December 23, 2015 by filing a summons and verified complaint. A request for judicial intervention was filed on March 9, 2016. The preliminary conference was held on April 25, 2016. Defendant filed an answer and counterclaim on the first day of the financial trial on September 11, 2017.
During this litigation the plaintiff sought DNA testing of the parties' infant child, who was born after the plaintiff filed for divorce, but by written decision and order dated April 22, 2016 the Court found that, in light of plaintiff's verified complaint that there is one child of the marriage and naming that child the plaintiff was judicially estopped from subsequently asserting a position inapposite of his prior position. It was undisputed that the plaintiff has never seen the child, who was born in October 2015, and he has never sought parenting time or any access to the child during this litigation (see R.I. v. T.I. , 51 Misc 3d 1215(A) (NY Sup. Ct. 2016) [April 22, 2016] ).
On the record on September 11, 2017 the plaintiff testified that he was not seeking custody of the parties' infant child and that he was not requesting parenting time with the child. Based upon plaintiff's consent, defendant is award sole legal and residential custody of the parties' child. Based upon plaintiff's refusal to have any contact with the parties' infant child the plaintiff is not awarded any parenting time with the parties' child (id ).
The Court issued a pendente lite support award in a written decision dated April 22, 2016 which ordered plaintiff to pay to defendant $2,966.67 monthly in spousal maintenance; $2,025.83 monthly in basic child support; the child's monthly child care expenses and health insurance premiums for a plan selected by the defendant.
The Court heard testimony in the trial on financial issues between the parties including equitable distribution, maintenance, child support and counsel fees on September 11, 2017; September 18, 2017; December 4, 2017; December 5, 2017; December 6, 2017; December 7, 2017; December 8, 2017; December 11, 2017; and December 12, 2017.
On December 13, 2017 the parties and counsel appeared for oral argument of motion sequences No.8, # 9 and # 10 after which the Court issued an oral decision on the record resolving all relief requested in motion sequences # 8, # 9 and # 10 except for the issue of plaintiff's request for a "refund" of the health insurance premiums he paid to the defendant during the litigation which was reserved to the trial court for determination in the written trial decision (see Order dated December 14, 2017). The parties stipulated for the Court to determine the issue of counsel fees upon submission of papers on the record on December 12, 2017 (see Order dated December 12, 2017). The date of March 12, 2018 was selected by counsel on the record for submission of minutes and summations and the Court signed an order dated December 14, 2017.
Plaintiff is forty-two (42) years old. He was born in Tajikistan in the former Soviet Union where he attended public school and medical school which he testified was free. He testified that prior to leaving the Soviet Union he worked as a barber. Plaintiff immigrated to the United States in 1997 when he was twenty-one (21) years old. He worked as a "busboy at a Jewish facility on Upper West Side." He completed his medical residence in Queens and in Brooklyn before opening a private medical practice in 2008.
Defendant is thirty-two (32) years old. She graduated from college and obtained a graduate degree in health science specializing as a physician's assistant from Touro College with a grade point average (GPA) of 4.0. She testified that she was not formally employed during the marriage but that she assisted the plaintiff in his private medical practice performing clerical and medical services.
The Court held an inquest on September 11, 2017 during which the plaintiff testified as to the grounds of DRL § 170(7) irretrievable breakdown in the marital relationship for a period in excess of six months inasmuch as all the ancillary issues were not resolved, the Court reserved decision. As part of that inquest, the plaintiff testified having affirmed that he would comply with DRL 253 by removing all barriers to remarriage. Defendant filed an answer and counterclaim on the first day of the financial trial on September 11, 2017.
Equitable Distribution: Bank Account s
Plaintiff's sworn statement of proposed disposition lists "assets claimed to be marital property: $106,000.00 savings" and he proposes that defendant be awarded equitable distribution of those savings in the sum of $53,000.00. Plaintiff offered no rational or legal basis for limiting the equitable distribution to this sum or how he calculated that he believes the marital "savings" are $106,000.
The record established that the Court ordered plaintiff to contribute pendente lite to defendant's child care expenses by order dated April 22, 2016. During cross-examination on December 6, 2017 the plaintiff testified that he had made no payments at all toward child care expenses in compliance with that order. Plaintiff testified that "you can find a day care for about $300 a month for the full-time" and he objected to the monthly expense of $1,500 for the child care selected by the defendant. Plaintiff testified on redirect that defendant only provided a redacted receipt for her alleged day care expenses and never provided a fully executed contract for day care or a name or an address of the day care.
Defendant testified that the child has been in full-time day care at the cost of $1,500 monthly since June 2017 and, despite a court order requiring plaintiff to pay day care expenses for the child, the plaintiff has not paid any of the day care costs and he has not provided any child care for the child himself. On cross-examination she testified that the child is in full-time day care because She testified that she selected a day care for the child instead of a babysitter because "...I want my child to be able to [sic ] adaptable to a social world."
By written order dated March 22, 2016, the plaintiff was ordered to obtain health insurance on behalf of the defendant and the parties' child by March 25, 2016. Thereafter, based upon plaintiff's failure to obtain health insurance pursuant to the March 22, 2016 order the Court directed, by written order dated April 22, 2016, the plaintiff to pay the premiums of a health insurance policy selected by the defendant.
On cross-examination, when questioned whether he forged the defendant's signature on a health insurance policy, the plaintiff testified that he signed the defendant's name on the form "to expedite" the process. Plaintiff testified that the only health insurance premiums he paid were based on the policy that he selected for defendant despite the court order dated April 22, 2016 that permitted the defendant to select the health insurance policy for herself and the parties' young child based upon the plaintiff's non-compliance with the court order to obtain and pay for health insurance for the defendant and the parties' infant child.
The record established that on April 22, 2016 the Court directed the plaintiff to pay for a health insurance selected by the defendant. Defendant testified that, pursuant to the Court order dated April 22, 2016, she selected a health insurance policy for herself and the child that "would cover everything and not have a lot of out-of-pocket expenses." She testified that the cost of the health insurance policy she selected was $1,635 monthly. She testified that the plaintiff refused to pay the full monthly premium for the health insurance she selected and, instead, only paid $976 monthly to her based on the cost of a health insurance that he selected for her.
Plaintiff testified — apparently unapologetically — that he completed an application for a health insurance policy on behalf of defendant, without her knowledge or consent and after the Court had ordered him to pay for a health insurance selected by the defendant, during this litigation that included signing her name without her consent. The insurance policy application was never effectuated. Plaintiff testified that he signed defendant's signature on the health insurance policy for convenience. He did not testify that defendant...
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