Villano v. Villano

• Decision Date: 14 March 1979
• Citation: 98 Misc.2d 774,414 N.Y.S.2d 625
• Parties: Elizabeth VILLANO, Plaintiff, v. Anthony VILLANO, Defendant.
• Court: New York Supreme Court

Page 625

414 N.Y.S.2d 625

98 Misc.2d 774

Elizabeth VILLANO, Plaintiff, v.Anthony VILLANO, Defendant.

Supreme Court, Special Term, Suffolk County, Part V.

March 14, 1979.

Firestone & Chekenian, Hauppauge, for plaintiff; Arnold B. Firestone, Hauppauge, of counsel.

Robert W. Shebar, Freeport, for defendant.

MEMORANDUM

JOSEPH JASPAN, Judge.

The plaintiff wife moves for an order enforcing the alimony and child support provisions incorporated in a Decree of Divorce and in aid thereof moves, pursuant to the provisions of Section 49-b of the Personal Property Law, to reach sums due the defendant from the United States Civil Service Commission, Bureau of Retirement, Insurance and Occupational Health.

The defendant cross moves for an order reducing the amount of alimony and child support and for an order directing the plaintiff to refrain from interfering with his visitation rights.

The parties entered into a separation agreement on June 16, 1976 which provided, inter alia, for the payment of $600.00 per month in alimony and $200.00 per month for each of the two younger children of the marriage, William, then aged 14 and Thomas, then aged 13.The wife was given custody subject to liberal visitation rights to be agreed upon but not less than alternate weekends.

It provided that the agreement would survive any decree of divorce and "shall be incorporated by reference or in substance in any court decree".It further provided that the agreement and performance thereunder and all suits and special proceedings thereunder be construed in accordance with the laws of the State of New York.

The marriage was thereafter dissolved by a Decree of Divorce issued on July 16, 1976 in the Dominican Republic which provided that the aforementioned separation agreement "shall survive and shall not be merged in the Judgment of Divorce" and further provided "that the parties are hereby ordered and directed to comply with each and every provision of the said agreement".

The defendant has failed to make any payments since June, 1978 except for the sum of $400.00 in August, 1978.The parties have stipulated that the arrears as of the date of the hearing (February 1, 1979) was $7,575.00, 60 percent attributable to the wife and 40 percent to the children.

Jurisdiction

The defendant acknowledges that Section 466(c)(i) of the Family Court Act authorizes this Court to enforce the provisions of a Santo Domingo decree (Seitz v. Drogheo, 21 N.Y.2d 181, 287 N.Y.S.2d 29, 234 N.E.2d 209;Lombardo v. Lombardo, 37 A.D.2d 993, 327 N.Y.S.2d 515) and that this Court also has the power to modify the alimony and support provisions (Buchman v. Buchman, 61 A.D.2d 973, 402 N.Y.S.2d 613).

He claims, however, that these rights are limited to cases where the foreign judgment has entered an order or decree granting alimony and support and that the mere incorporation of the separation agreement by reference does not accomplish that purpose.

This Court disagrees upon the authority of Gardner v. Gardner, 40 A.D.2d 153, 338 N.Y.S.2d 639, aff'd.33 N.Y.2d 899, 352 N.Y.S.2d 626, 307 N.E.2d 823.

Silver v. Silver, 36 N.Y.2d 324, 367 N.Y.S.2d 777, 327 N.E.2d 816andWertheimer v. Wertheimer, 50 A.D.2d 879, 376 N.Y.S.2d 638, do not hold to the contrary.They limit the authority to enforce or amend to cases where there is a currently effective support or alimony provision.

Facts

At the time of the execution of the separation agreement the husband was receiving a disability pension of $12,000 (now approximately $12,750) per year by reason of injuries sustained while an agent of the FBI.In addition, he was then earning $16,000 per year as an undercover investigator for the Nassau County District Attorney.In August, 1978he was forced to resign that position because he had published a book about his FBI activities which contained admissions that he had engaged in illegal searches and illegal wiretapping and because the jacket featured his picture thereby destroying his usefulness as an undercover agent.

In February, 1977he was remarried to a fellow Nassau County employee then earning $15,000 per year who was later obliged in September, 1978 to take leave of her position to give birth to their child.She is not presently employed.

The net effect of these events was to reduce his earnings to the disability income at a time when he was also obliged to support his new family.

While the defendant claims that his former wife has an income derived from a "responsible position with Suffolk County", no evidence was presented by either to otherwise define that job or the salary it commands.The plaintiff's affidavit of August 25, 1978 states her salary to be $7,200 per year.Her other income, consisting of dividends is computed by her at $800 per annum.

The husband's affidavit of September 14, 1978 indicated ownership of a home valued at $55,000 free of liens, two automobiles worth $10,000 subject to liens of $3,500 now reduced to $1,350, $500 in cash and $500 in stocks and bonds and two boats worth $4,000.On the stand the defendant also acknowledged prior receipt of $25,000 for rights to his book, which he claims has been disbursed for living expenses.

Testimony at the hearing before this Court established that the defendant bought a boat in July or August of 1978 at a time when he was no longer making support or alimony payments; that he declined a job as head of security for Lee Myles and also declined a job as chief of security at the Waldorf Astoria, both at a proposed salary of $25,000 per year.

Some question arose as to the ability of the defendant to work, but that evidence establishes that his disability would not have impaired his ability to take on the security positions which were offered to him.Incidentally, an article which appeared in the magazine "'People" in January of 1979 portrays the defendant as a virile, healthy man and shows a picture of him purporting to chop wood.

Significantly, during the period of his default and the pendency of these proceedings, the defendant transferred stock without consideration to his current wife and also conveyed title to his home valued at $55,000, free of lien, to his present wife and to his brother, also without consideration, in transactions which could trigger remedies under Sections 270, et seq. of the Debtor and Creditor Law.

Defendant's Request for a Modification

Alimony provisions can only be modified upon the moving party's showing of a substantial change of circumstances that have not resulted from the actions or inactions of that party(Hickland v. Hickland, 39 N.Y.2d 1, 382 N.Y.S.2d 475, 346 N.E.2d 243, rehearing 56 A.D.2d 978, 393 N.Y.S.2d 192;Canfield v. Canfield, 55 A.D.2d 694, 389 N.Y.S.2d 52;Tagarelli v. Tagarelli, 50 A.D.2d 917, 377 N.Y.S.2d 583).

Moreover, a husband may not avoid his obligation to support his former wife by an act of voluntary retirement (Grant v. Grant, 61 Misc.2d 968, 307 N.Y.S.2d 153) or by giving up his profession to pursue a career in some unrelated field (Sullivan v. Sullivan, 55 Misc.2d 691, 286 N.Y.S.2d 346, aff'd no op. 29 A.D.2d 739, 287 N.Y.S.2d 353).

In Sullivan, a reduction in child support payments was refused where the father deliberately left his job to pursue graduate studies.

It is also well settled that current economic condition is not the rod by which the proper amount of support is measured the rod is the "ability to provide" and requires that potential earning power be considered.(Kay v. Kay, 37 N.Y.2d 632, 376 N.Y.S.2d 443, 339 N.E.2d 143;Porcelain v. Porcelain, 94 Misc.2d 891, 405 N.Y.S.2d 961.)As stated in Porcelain :

"The fact that he does not work, does not, in and of itself, preclude his capacity to work, nor preclude a finding that he has the means wherewith to discharge an order for support. . . .The measure of ability to support is not based upon what an irresponsible husband designs to earn, But what he is potentially able to earn in light of his established capabilities."(emphasis supplied)

Thus, the defendant's current loss of income must be examined in light of his own testimony that he thereafter refused opportunities for significant gainful employment.The positions available paid substantially more than he had been earning with the Nassau District Attorney and provides substantial evidence that there has been no diminution in the defendant's potential earning power.

Another consideration is the defendant's remarriage.While remarriage with its concomitant support obligations may be viewed as a changed circumstance when there is also diminished income (Hickland v. Hickland, supra;Windwer v. Windwer, 39 A.D.2d 927, 333 N.Y.S.2d 205, aff'd33 N.Y.2d 599, 347 N.Y.S.2d 458, 301 N.E.2d 440), such remarriage should be considered in determining the amount of a modification Only after the Court has found that a modification is warranted.(R. v. R., 89 Misc.2d 666, 392 N.Y.S.2d 178;Cf.Swartz v. Swartz, 43 A.D.2d 1012, 349 N.Y.S.2d 1005.)Here, there is no such finding.

Defendant's contention that his former wife is currently receiving income from her job has some bearing on the matter before the Court, its effect limited by the separation agreement provision that "(t)he wife's income shall not be a basis for application by the husband for a reduction of alimony"(Separation Agreement, pp. 5-6).(See, Null v. Null, App.Div., 413 N.Y.S.2d 760(2d Dept.).)For the reasons set forth, I hold that the defendant's application for modification should not be granted.

An additional reason exists for denying relief to the defendant.

This Court now sits as a Court of equity and one may be denied relief upon his failure to come before it with "clean hands"(Christian v. Christian, 42 N.Y.2d 63, 396 N.Y.S.2d 817, 365 N.E.2d 849;Henderson v. Henderson, 63 A.D.2d 853, 405 N.Y.S.2d 857;Gevis v. Gevis, Sup., 141 N.Y.S.2d 121).

Here, the defendant, by his own admission, transferred a residence and stocks without consideration during the...