Wenzel v. Wenzel

• Decision Date: 17 January 1984
• Citation: 472 N.Y.S.2d 830,122 Misc.2d 1001
• Parties: Rosemary WENZEL, Plaintiff, v. Harry WENZEL, Defendant.
• Court: New York Supreme Court

Page 830

472 N.Y.S.2d 830

122 Misc.2d 1001

Rosemary WENZEL, Plaintiff, v. Harry WENZEL, Defendant.

Supreme Court, Special Term Suffolk County, Part V.

Jan. 17, 1984.

Jeffrey W. Waller, P.C., Huntington, for plaintiff.

William J. Eppig, West Islip, for defendant.

MEMORANDUM

BERNARD F. McCAFFREY, Justice.

In order to give meaning to the intent and spirit of the Equitable Distribution Law it is necessary, at times, for the court to utilize judicial innovation. The underlying facts and the unique set of circumstances in this matrimonial matter cry out to the court for such relief.

On May 29, 1981, the defendant-husband, without cause or provocation, attacked the plaintiff-wife with a knife and inflicted numerous serious wounds upon her, requiring extensive hospitalization, surgery and therapy. After leaving her for dead, the defendant fled from the marital premises and was not apprehended until some five months later. The defendant was subsequently tried and convicted of attempted murder, and is now serving a 8 1/3 to 25 year prison term.

The court notes that this plaintiff-wife, solely through the acts of the defendant, has been left in a destitute financial situation. It would be inconceivable to merely make a meaningless, uncollectable award of maintenance and child support, leaving her relegated to never ending legal expenses in vain frustration seeking these support payments, while the debts were ever increasing. Plaintiff was compelled to go on welfare to support herself and the three children.

Thus, the court has been called upon to employ judicial innovation in the application of the Equitable Distribution Law in order to do equity and justice. This is so, not only to a viable alternative to an uncollectable award of maintenance and support, but also as to the structuring of an equitable distributive award to meet these unique circumstances. In particular, is the court's dilemma of how to equitably apply the intent of the Equitable Distribution Law in a situation where the pension is vested, and the defendant declines to file for either a regular pension, or apply for and submit to a physical for a substantially higher disability pension. The economic crisis to the family is ever increasing in that the pension pay out is not cumulative. Thus, for each pension period that the pension is not in effect, that portion of the pension proceeds is forever lost. Therefore, if there ever was a time that reason and justice should prevail, it is here. This is so even if new judicial trails must be blazed, where, as here, there are no controlling precedents to guide the court.

At the outset the court finds that fault itself should not be considered as a factor in either the granting or denying of equitable distribution or a distributive award. However, this court holds that there are certain circumstances that can trigger fault as a factor. Though there is no question but that the assault on plaintiff's life by the defendant-husband was a heinous act, it is not the repugnance or violence of the act itself that is the basis for fault to be considered as a factor, rather there must be a finding of such adverse detrimental effect upon the innocent spouse. Thus, there must be a two-step finding: (1) fault, and (2) such adverse physical and/or psychological effect upon the innocent spouse so as to interfere with her ability to be, or to become self-supporting. The facts presented in this matter clearly spell out the exception to the rule. The overwhelming evidence demonstrates that the effect of the marital fault had a drastic physical and psychological effect upon the wife's ability to be, or to become self-supporting. Thus, there was a convincing showing of the two-step finding.

DIVORCE

The plaintiff-wife of this eighteen year marriage seeks a divorce against her husband There are three children of the marriage, Jeffrey born October 13, 1965; John born January 10, 1969; and Lynn born June 4, 1976. Jeffrey, during the school year resides at New Paltz where he is attending college.

the defendant. Plaintiff and defendant were married on March 28, 1965. The defendant is 42 years of age; he previously was a Suffolk County Police Officer, and is now committed to a state correctional facility for the attempted homicide of his wife, the plaintiff. The plaintiff is also 42 years of age, and presently is unemployed. The defendant himself refused to return to Suffolk County for the trial, contending that he was afraid for his life in Suffolk County. The defendant was represented at the trial by counsel and by a guardian ad litem, William Harrison, Esq., appointed by order of the court dated May 1983 (Geiler, J.).

The plaintiff testified at the trial, substantiating the following allegations of her complaint:

a) On or about May 29, 1981, defendant, without cause or provocation therefor, attacked plaintiff with a knife and inflicted multiple stab wounds upon the body of the plaintiff;

b) In August 1979 defendant struck the plaintiff;

c) In the Spring of 1979 defendant attempted to choke the plaintiff;

d) During the last several years of the marriage defendant engaged in irrational, paranoid behavior causing plaintiff to suffer severe emotional anguish, being hypercritical of the plaintiff.

To the extent that defendant's history of mental illness and irrational behavior was introduced at the trial, including the written report of a psychiatrist who examined defendant prior to his sentencing on the attempted murder conviction (Exh. 16) and found defendant to have a serious mental illness, the court finds that such condition does not excuse the defendant from his acts of cruel and inhuman treatment.

The court finds in favor of the plaintiff in her cause of action for a divorce on the grounds of cruel and inhuman treatment of the plaintiff by the defendant. Clearly, the defendant's conduct toward plaintiff constituted cruelty as defined in Section 170(1) of the Domestic Relations Law, as "rendering it unsafe and improper" for the plaintiff to continue to live with the defendant. The function, here, for the court is not to determine intent but, rather, the result of the conduct of defendant and whether or not it was such as to render it "unsafe or improper for the plaintiff to cohabit with the defendant". This issue appears to have been raised and considered in the Court of Appeals in Pajak v. Pajak, 56 N.Y.2d 394, 437 N.E.2d 1138, 452 N.Y.S.2d 381, which indicated that Section 170(1) of the Domestic Relations Law "focuses exclusively upon the effect of the conduct complained of and makes no mention of its cause." Under the circumstances, plaintiff is entitled to a divorce against defendant. The court finds that plaintiff shall have custody of the infant children of the marriage.

Having established that plaintiff is entitled to a divorce, the court now turns to the issues of maintenance and support, equitable distribution, and the other ancillary aspects of the case.

MAINTENANCE AND SUPPORT

Plaintiff testified to a need for income in a sum of approximately $2,000 per month for herself and her three children. Of course, the ten factors under Domestic Relations Law Section 236(B)(5) and (6), and the five factors under Domestic Relations Law Section 236(B)(7) must be considered in the light of the fact that the defendant is incarcerated in prison and is mentally ill.

The plaintiff, before the attack, had been a secretary and a bookkeeper, capable of self-support and contribution to the support of the children. As a result of the defendant's acts, she can no longer, despite efforts, work and she will not be able to work for the foreseeable future. She can't type and, though she tried to return to the job market, she was unable to hold onto a bank job where she had been employed. The The court believes that the plaintiff is entitled to maintenance and child support in the sum of $350 per week. The court would allocate the $350 as $125 for maintenance, and $225 as child support. However, inasmuch as defendant, because of his incarceration, is incapable of making weekly payments to plaintiff, the court finds that at the very outset the circumstances call out for an equitable solution.

permanent nerve damage, particularly to her hand, and the pain and difficulty she experiences from physical exertion makes this particularly so. The plaintiff is now back on public assistance.

In setting an award of maintenance and support, the court is well aware of the fact that it might very well be uncollectable, particularly during the period that the defendant remains incarcerated. However, the court makes this award of maintenance support lest the plaintiff and the children, in effect, should be left with no means of support in the event that any of the equitable distribution or distributive award provisions are unable to be realized for any reason.

To the extent that the plaintiff is able to collect defendant's pension benefits as provided for hereinafter, said benefits shall be deemed to be a credit towards the maintenance and child support established hereinabove.

Payment of maintenance and child support shall be deemed payable beginning with the date of signing of the judgment to be submitted herein.

PENSION

A major asset in this case which requires unique handling is the defendant's right to a pension from his employment as a police officer in Suffolk County. The pension in question is vested. However, in this case, the defendant has refused to apply for same, as he does not need said funds due to his incarceration and does not wish the plaintiff to share in said proceeds. The fact the defendant, by his attitude, is denying his children the benefit of said proceeds does not dissuade him from the position he has taken in regard to his pension. The situation is made more complicated in that defendant may very well qualify for a disability pension (mental illness), but will not consent to an examination to confirm...