K. v. B.

13 A.D.3d 12, 784 N.Y.S.2d 76, 2004 N.Y. App. Div. LEXIS 13151

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 9, 2004
• Status: Published

Opinions

OPINION OF THE COURT

Marlow, J.

This appeal presents an unusual set of facts, whose most pertinent aspects are substantially set forth in the dissent. The parties’ marriage was unconventional in certain ways, but that lack of convention does not, as the defendant husband would have it, trump the settled equitable distribution principles which have evolved in New York since 1980. For that reason we most respectfully disagree with our dissenting colleague(s) and affirm the trial court.

Cruel and Inhuman Treatment

Without citing any legal authority, the husband argues that the wife could not establish cruel and inhuman treatment as a ground for divorce since the parties did not cohabit, but rather maintained separate residences—the wife in Manhattan and the husband in Putnam County. However, in considering a cause of action for cruel and inhuman treatment, the factfinder should focus primary attention on the nature of the interaction between a husband and wife, rather than on the type of living arrangement they have.

After trial, the court made express findings of fact in favor of the wife’s claim of cruel and inhuman treatment. Specifically, the court found sufficient proof that the husband committed “marital rape” more than once; that the husband wiretapped and monitored the wife’s telephone conversations without her knowledge; that the husband accused the wife of adultery; that the husband threatened to ruin the wife’s business; that the husband refused to discuss his finances with the wife, some of which involved projects which the wife was financing; that the husband engaged in “various financial maneuvers” which involved “surreptitiously” withdrawing money from joint accounts, selling stock and liquidating assets, including taking for his own benefit a $35,000 federal income tax refund check; that the husband suggested to the wife that she was mentally unstable and incapable of making decisions; that the husband wrote a “manipulative and intimidating” letter¹ to the wife’s therapist; that the husband engaged in a pattern of anger followed by withdrawal when the wife wanted to talk about her feelings concerning the parties’ marriage and family; that the husband continually gave the wife “mean and frightening” stares; that the husband yelled at the wife, demeaned her and berated the wife when she tried to discuss serious issues with him; that the husband engaged in a long pattern of intimidation;² and that when the wife was feeling “pressured” by her mounting, severe business problems, the husband remained upstate, refusing to spend any more time in New York City with her and their three children, despite her repeated requests. These incidents, evincing a long-standing pattern of emotional neglect and abuse, are amply supported by the record and they well establish the wife’s cause of action for cruel and inhuman treatment (see e.g. Allwell v Allwell, 252 AD2d 683 [1998]; Gascon v Gascon, 187 AD2d 955 [1992]; Richardson v Richardson, 186 AD2d 946 [1992], lv dismissed in part and denied in part 81 NY2d 867 [1993] ; Birnbaum v Birnbaum, 177 AD2d 367 [1991], lv dismissed 79 NY2d 1040 [1992]; Rieger v Rieger, 161 AD2d 227 [1990]). Thus, no basis exists to disturb the trial court’s finding, largely one of credibility (see Eschbach v Eschbach, 56 NY2d 167, 173-174 [1982]); that the wife proved the stated ground for divorce.

65%-35% Distributive Award

The husband also maintains that the court erred in distributing the marital property 65%-35% in the wife’s favor since the parties had a premarriage agreement requiring a 50%-50% division of all mutually held assets.³ Although the parties signed the “agreement,” it was not acknowledged or proven in the manner required to entitle a deed to be recorded (see Domestic Relations Law § 236 [B] [3]; Matisoff v Dobi, 90 NY2d 127, 130 [1997]). Therefore, the “agreement” is unenforceable, and the trial court properly rejected it as evidence.

Moreover, while the husband may have contemplated an unconventional marriage in which the parties make unequal financial and emotional contributions, but, upon dissolution, the parties are nonetheless awarded an equal distribution of marital assets, the law does not contemplate such an arrangement; especially in a two-decade-long marriage like this, where time, a variety of difficult circumstances, and the arrival of three children have together created a life the parties likely never anticipated when they wrote a so-called “agreement.” That writing—created in a pre-equitable distribution context— carries no legal force save for the minor impact of its historical voice.

Under the current law, this husband cannot escape accountability for his ever-increasing family obligations simply because these otherwise intelligent parties—20 years earlier and yet to be faced with the demands of parenthood and other unanticipated challenges—had agreed to live in separate counties. While originally the wife did agree to that unorthodox arrangement, she nevertheless continued to work full time, provided the lion’s share of the family’s financial support, and reared their three children virtually alone. While the dissent maintains that neither party “contemplated altering their lives so the children would have both parents around on a daily basis,” they did agree that if both parents were working full time, they would jointly share responsibility for child rearing. Here, the wife worked full time and assumed virtually all child-rearing responsibility, while the husband dabbled in his projects and assumed virtually none of the child-rearing responsibility. The unexpected evolution of this couple’s joint and separate lives bespeaks, with crystal clarity, the wisdom of the Equitable Distribution Law, designed so that the experience a couple endures and the contributions each spouse makes foretell the character of a marriage’s end.

We therefore respectfully disagree with the dissent’s position that the husband’s inaction during the parties’ most financially difficult periods was justified based on their premarriage “agreement” two decades earlier. During the time the wife was earning an excellent living, even though she was simultaneously and almost singlehandedly raising the children, the husband’s lack of interest or help may arguably be considered of lesser importance than more recent events only because some of his proven indifference occurred earlier in their marriage. However, over the long haul, the record is clear that the husband gave very little, both financially and domestically, to his marriage and his family.

Thereafter, the family’s size and financial health dramatically changed. After her law partner was suddenly killed in 1996, the wife became solely responsible for the operation of the debt-ridden law firm. Under the enormous pressure of trying to salvage the firm by herself in the wake of her partner’s death and, further, upon the consequential discovery that the firm had other significant liabilities, all while at the same time raising and trying to nurture their three children, the wife asked her husband for help. He refused to step up to the plate and offer any assistance, be it financial, emotional or otherwise.

The husband’s reliance on the parties’ premarriage agreement became increasingly indefensible and illogical with the birth of each of his three children. We can reach no other conclusion than that the husband’s indifference clearly justifies the unequal distribution of marital assets awarded by the court, not as a punitive consequence, but, rather, as a factually supported reflection of the actual contributions each spouse made to the existence and survival of the marriage and in fulfillment of their respective roles as parents and partners.

The Domestic Relations Law contemplates an equitable, not necessarily equal, division of marital assets based on the parties’ respective contributions to the marriage (see Domestic Relations Law § 236 [B] [5] [d] [6]). Equitable distribution is “based on the premise that a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner or homemaker” (O’Brien v O’Brien, 66 NY2d 576, 585 [1985]; accord Price v Price, 69 NY2d 8, 14 [1986]). The distribution of marital assets depends not only on the financial contribution of the parties “but also on a wide range of nonremunerated services to the joint enterprise, such as homemaking, raising children and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home” (Brennan v Brennan, 103 AD2d 48, 52 [1984] [citations omitted]; accord Price, 69 NY2d at 14). The evidence is abundant that the wife contributed significantly in every single category, and the husband hardly at all. Therefore, we affirm the trial court’s unequal distribution of marital property, as amply supported by the record, even were we not to consider any economic fault (see Domestic Relations Law § 236 [B] [5] [d]).

The wife was the principal wage earner for most of the marriage. As conceded by the husband, during the second half of the marriage the wife provided nearly all of the entire family’s financial support. In addition to paying all the New York City household and child care expenses, she contributed substantial sums to the husband’s various real estate projects. Indeed, the husband admitted that the wife contributed between 1.5 and 2 million dollars for his projects, which, with abundant consistency, failed to produce reliable or substantial income. For example, one venture, a cattle farm in Vermont, produced “a couple of thousand dollars a year.” However, the husband later testified that this project “throws off some money, but it’s a much bigger loss” and with the exception of one year it never made a profit. Beyond that, the evidence unquestionably establishes that the wife undertook the herculean combined roles of full-time lawyer, primary homemaker and primary parent of the three children, all with, at best, marginal help and support from their father. As the family grew and the professional and personal demands on the wife increased, the husband—rather than pitching in- more—refused to spend additional time in New York City to help his wife with their three children.

When her law practice was failing and she needed her husband, he once again refused. This husband’s telling response during these trying times was to complain that his wife was too exhausted to go out with him during the one or two evenings each week that he would journey about 60 miles to New York City. His reaction was, as the trial court put it, “selfish and self-centered,” as during these “extremely stressful” events “a married person would be expected to look to her spouse at such time for emotional, if not financial support.” This record depicts a husband who gave neither.

The husband also criticizes the court’s determination that economic fault warranted a greater distribution of marital assets to the wife.⁴ The dissent says that the court’s consideration of fault is punitive. However, while most often, where a marriage is of long duration, a court does not distribute marital property unequally unless there is a finding of marital or economic fault. Here, based on these most unusual circumstances, the record fully supports an unequal distribution of assets based solely on the parties’ respective, unequal contributions to the marriage. Indeed, the court specifically and correctly cites, in addition to the wife’s financial contributions, her “contributions as the primary homemaker and caretaker, particularly her assumption of almost all responsibility for child-rearing” as a basis for awarding the wife the greater share of marital assets (see Domestic Relations Law § 236 [B] [5] [d] [6]; cf. Greenwald v Greenwald, 164 AD2d 706 [1991], lv denied 78 NY2d 855 [1991]; Granade-Bastuck v Bastuck, 249 AD2d 444 [1998]).

In any event, the court’s finding concerning the husband’s relentless appropriation of money, including money set aside for his children’s education, and conversion of personalty, for his own purposes while ignoring his wife’s pleas for financial and emotional assistance, further supports the trial court’s conclusion that an unequal distribution of property is fair and legally justified (see Domestic Relations Law § 236 [B] [5] [d] [11], [13]; Davis v Davis, 175 AD2d 45 [1991]). In addition, the husband refused the wife’s request to sell off some real estate holdings to produce some much needed cash. The husband also admitted that he withdrew money from an escrow account in violation of a court order. Against this backdrop of financial misconduct, it is of no moment whether the husband’s actions in filing a claim for innocent spouse relief were inappropriate, as the trial court found, and as challenged by the dissent as a basis for a finding of economic misconduct.

Contrary to the dissent’s conclusion that defendant liquidated marital assets, including his children’s investment funds, in an attempt to earn income from developing properties, defendant admitted that he sold marital property to “fend for himself’ as he understood that no money would be coming his way from his wife or her law firm. There is no evidence in the record that the husband used any of the money from the liquidated marital assets for his family’s ultimate benefit. On the contrary, the husband incessantly invaded marital property for his own purposes, as he was earning no appreciable income to support either himself or his family.

This behavior stands in stark contrast to his wife’s one-time liquidation of a mutual fund which she used solely to preserve the major family asset—her law practice from which the husband benefitted for many years. The wife used this money to repay investors who had placed a lien on the firm. While the husband also complains that the wife incurred millions of dollars of tax liability in her business, the firm made a business decision to pay several million dollars it owed to investors instead of paying payroll taxes. Had the firm paid the payroll taxes, it would still have owed its investors. Either way, the firm would still have significant debt, with virtually identical financial consequences for this family. Accordingly, we affirm the trial court’s distribution of marital property as fairly representing the parties’ lopsided contributions to the marriage.

Valuation of Wife’s Business

The husband also challenges the court’s finding that the wife’s firm had no value. However, there is no dispute that at the time the wife commenced this action, her firm’s tax liabilities and other debt far outweighed any assets. Consequently, when the husband offered no evidence to the contrary, the court correctly found that the firm had no value whatsoever. That the court-appointed independent accountant did not perform an analysis of the value of those contingency-fee cases, which the firm possessed on the valuation date, does not warrant a different result. Although given the opportunity to do so, the husband, as the spouse claiming entitlement to marital property, did not offer any evidence to show that the value of those cases exceeded the firm’s liabilities (see Davis v Davis, 128 AD2d 470 [1987]). Accordingly, the husband failed to meet his burden to prove that the wife’s business had any value.

Child Support

The husband argues that the court improperly imputed a $60,000 annual income to him for child support purposes. Child support is based on a parent’s ability to provide for his or her children, not necessarily the parent’s current economic situation (see Family Ct Act § 413 [1] [a]; Matter of Zwick v Kulhan, 226 AD2d 734 [1996]). Since the trial court considered the credible proof—specifically, the husband’s possession of both an architect’s and real estate broker’s license and his extensive training and experience in both fields—and rendered a decision based on the proven facts and applicable law, we find no basis to disturb its reasoned and reasonable imputation of income to the husband (see Chervin v Chervin, 264 AD2d 680 [1999]).

Wife’s Law License

Although at the end of his main brief and in a conclusory fashion the husband asserts that the matter must be remanded, among other reasons, to value the wife’s law license, he makes no specific substantive argument which focuses on the merits of this claim. We therefore decline to consider it.

Judicial Bias

To begin with, the husband’s claim of judicial bias is unavailing, since he both failed to interpose an objection when he had an opportunity to do so, and, in the absence of a mandatory statutory basis for disqualification, he failed to demonstrate bias affecting the result (see Schrager v New York Univ., 227 AD2d 189, 191 [1996]; Melnik v Melnik, 118 AD2d 902, 904 [1986]). Furthermore, the judge violated no controlling ethics opinion or rule (see Advisory Comm on Jud Ethics Op 02-06 [2002]). Moreover, not only does the credible evidence overwhelmingly support the results, but, indeed, in some respects, the court’s economic determinations are generous to the husband.

Accordingly, the judgment of the Supreme Court, New York County (Marylin Diamond, J.), entered April 4, 2000, granting the wife a divorce on the ground of cruel and inhuman treatment, and supplemental judgment of divorce, same court and Justice, entered October 19, 2001, inter alia, dividing the parties’ marital property 65%-35% in the wife’s favor, finding that the wife’s law firm has no value, and finding the husband 50% responsible for those debts of the wife’s business for which she may be held personally liable, should be affirmed, without costs.

1 . In the letter, the husband purported to express concern about his wife’s allegedly deteriorating mental health, but urged that, since the therapist could be tired at the end of a full day at the office and therefore not totally “in touch,” the therapist should possibly involve a psychiatrist in evaluating the wife’s state. This letter was attached to a copy of a news article that described a case where a therapist was held liable for misdiagnosing a patient who subsequently killed two people. At the bottom of the article was written, “Professional Responsibility.” The therapist testified that he found the husband’s correspondence “quite manipulative.”

2 . In particular, the husband manipulated the wife into writing a letter at his direction, indicating that he did not treat her cruelly. The letter was to be shown to the parties’ children in the event they learned of a prior divorce action which the wife had commenced, but discontinued after the husband threatened to destroy her, their family and her law practice.

3 . Ironically, the agreement also provides that “[a]ll child rearing shall be a joint responsibility if both [husband and wife] are working full time.”

4 . The husband also argues that the court improperly found that his “conduct constituted ‘egregious’ marital fault.” However, this is a gross and disingenuous distortion of the court’s findings of fact and conclusions of law. The court acknowledged defendant’s argument that marital fault is ordinarily not a factor in equitable distribution, but then observed that “economic misconduct, as distinct from marital fault, may properly be considered.”