Just made aware of this case that came out in December - but the transmission of an STD or STI by one non disclosing spouse to another is a form of domestic violence and is a factor to consider in equitable distribution.
NS v TS, 2025 NY Slip Op 51897(U), (Nass. Co. Sup. Ct. 2025):
"EDMUND M. DANE, J.
Introduction
After a non-jury trial, this Court is ostensibly presented with a
difficult question: whether or not the transmission of a sexually
transmitted infection from one spouse to another constitutes a form of
domestic violence within the context of the Court's obligation to
equitably dispose of the parties' marital property? DRL §
236(B)(5)(d)(14) provides, in sum, that in determining an equitable
disposition of property, the Court shall consider whether either
party has committed an act or acts of domestic violence against the
other party and the nature, extent, duration and impact of such act or
acts. Whether or not the transmitting spouse's conduct was intentional,
or unintentional but reckless, this Court answers that question in the
affirmative. To this point, the Court holds that one spouse's
transmission of a sexually transmitted infection to the other spouse
constitutes a form of domestic violence. For the reasons that follow in
this Decision and Order, the Wife is hereby awarded 100% of the marital
assets which are subject to equitable distribution.
Background
These parties were married on xxxx 2019. They have one (1) child
together, to wit, XXXX, born xxxx 2019. The Plaintiff (hereinafter
referred to as the "Wife") was born on xxxx, 1985. The Defendant
(hereinafter referred to as the "Husband")[1]
was born on xxxx 1987. The Wife commenced the within matrimonial action
against the Husband on April 11, 2022 by the filing of a Summons and
Verified Complaint with the Nassau County Clerk's Office. The Wife
appeared through counsel, Capetola & Divins, P.C. While the Husband
participated in this action, he is currently serving a term of
incarceration at Mohawk Correctional Facility in Rome, New York. The
parties appeared before this Court for a Preliminary Conference on July
29, 2022. The Husband did not sign the proposed Preliminary Conference
Stipulation & Order. The Court, therefore, so ordered same simply as an Order of the Court (hereinafter referred to as the "PC Order").
On September 12, 2022, this Court issued an Order Assigning Counsel
Pursuant to Judiciary Law 35(8) whereby it assigned Mark Green, Esq., as
attorney for the Husband solely on the issues of custody and parental
access. On October 21, 2022, this Court issued an Order Appointing
Attorney for the Child whereby it appointed Lisa Silverman, Esq., as
attorney for the subject child. On January 9, 2023, and due to the
resignation of Ms. Silverman from the panel, this Court issued an Order
Appointing Attorney for the Child whereby it appointed Susan G. Mintz,
Esq., as attorney for the subject child. On April 24, 2023, this Court
issued a Certification Order. On August 22, 2023, an Order of
Fact-Finding and Disposition (Hon. Robin M. Kent, J.S.C.) was issued by
the Nassau County Family Court which, inter alia and in sum and
substance, adjudged that the Husband had neglected the subject child. An
Order of Protection was issued by the Family Court on August 22, 2023.
On January 12, 2024, an Order of Protection was issued by the Nassau
County District Court (Hon. David Kirschner) in favor of the subject
child. That Order of Protection expires January 11, 2039. On January 12,
2024, an Order of Protection was issued by the Nassau County District
Court (Hon. David Kirschner) in favor of the Wife. That Order of
Protection also expires January 11, 2039. On April 10, 2024, the Wife
filed a Note of Issue & Certificate of Readiness for Trial.
On May 20, 2024, this Court issued a Decision and Order (hereinafter referred to as the "May 2024 Order") which, inter alia
and in sum and substance, granted the Wife summary judgment on the
issues of custody and parental access, awarded the Wife sole legal,
physical and residential custody of the child, and directed that the
Husband have no contact or communication, of any kind whatsoever, with
the subject child. See generally N.S. v. T.S., 82 Misc 3d 1253(A)
(Supreme Court Nassau County 2024). On December 2, 2024, this Court
issued a Decision and Order (hereinafter referred to as the "December
2024 Order") which, inter alia and in sum and substance, denied
without prejudice and with leave to renew so much of the Wife's
application seeking summary judgment on the issue of child support and
denied so much of the Wife's application seeking summary judgment on the
issue of equitable distribution. On July 31, 2025, this Court issued a
Decision and Order (hereinafter referred to as the "July 2025 Order')
which, inter alia and in sum and substance, precluded the Husband
from offering at trial any evidence or defense, testimonial or
documentary, with respect to any documents directed to be produced by
the PC Order and any requests set forth in the Plaintiff's Notice for
Discovery & Inspection.
Trial Date
The trial of this matter commenced and concluded on October 20, 2025.
Given the Husband's incarcerated status, the Court elected to conduct
this matter virtually via Microsoft Teams, which the Court found to be
necessary to carry into effect the powers and jurisdiction possessed by
the Court. See generally Judiciary Law § 2-b(3).[2]
At trial, the only two witnesses were the Wife and the Husband. The
Wife was represented at the trial by Capetola & Divins, P.C. The
Husband proceeded pro se.
The Trial Testimony
A. Wife's Case
1. Testimony of the Wife:
Direct Examination
The Wife testified with respect to background information. She was
born xxxx, 1985. The parties were married on May xx, 2019. The parties
have one (1) child together, named, born on xxxx 2019.
The Wife testified with respect to an incident on February 17, 2022.
The Wife was at Cohen's Children's Medical Center. The child had surgery
the day prior to February 17, 2022. The Wife was in child's hospital
room. The Husband arrived at hospital on February 17, 2022, only after
the Wife "begged" him to come pick-up her and the child. The Husband
entered the room. The Wife was upset at that time that the Husband left
the Wife and the child alone. The Husband told the Wife that the parties
should get a divorce. The Husband told the Wife that the child was
coming home with him. The Wife told the Husband that the child was going
home with her. At that time, the Husband took out a gun from his
pocket. The Wife was holding the child at this time. The Husband
reiterated that the child was coming home with him, and told the Wife
that if she were to come near the home, he would "shoot you on site".
The Husband then pointed the gun towards the Wife and the child. When a
hospital employee entered the room at that time and was standing in
doorway, the Wife yelled "help". The Husband proceeded to put the gun in
his pants. The Husband told the Wife again that she was not allowed to
go home and that she needed to figure out where she could stay. The
Husband, after he left the hospital room, told the Wife on the phone
that if she comes back to the home, it would be easy for him because he
could shoot her while she was sleeping. The police were then called. The
police found the Husband in the parking lot with two (2) guns and
drugs. The Husband was sentenced to seven years imprisonment and plead
guilty to a felony. The Husband is currently incarcerated. There were
two Order(s) of Protection issued, one in favor of the Wife and one in
favor of the child. The Husband cannot contact the Wife or the child
until 2039. There was also a finding of neglect against the Husband.
The Wife testified with respect to other incidents of domestic
violence. The Husband previously threatened the Wife's life when the
Wife confronted the Husband about excessive drug use and the Husband
spending money on heroin. In October of 2020, the Husband told the Wife
that if she did not shut the fuck up and leave him alone, he would kill
her, he would kill the child and he would kill himself. He told the Wife
this while he was holding a gun.
The Wife testified with respect to the Husband's drug use. The
Husband would use heroin, crack and cocaine. The Husband admitted to
using drugs. The Husband would pay for drugs with large amounts of cash
that he withdrew from checking account ending xxx4438. The Husband would
take cash withdrawals during the marriage anywhere from two to three
times per week. At any given time, he would withdraw between $200 and
$800. The Wife estimates that approximately $60,000 was used on drugs
and nonmarital expenses. When the Wife would confront the Husband about
these withdrawals, the Husband would become violent and defensive. While
the Husband would "storm" away, he told the Wife that if she was still
there when he got back, he would kill her.
The Wife testified with respect to a text message that the Husband
sent to her. The Husband sent the Wife a text message that he was going
to kill her and then himself. The Husband threatened to "kill us". The
Wife believed that the Husband would kill her. The Wife did not call the
police because the Husband told her that if she called the police, he
would kill her before the police arrived.
The Wife testified with respect to what she believed were the
Husband's tendencies. The Wife characterized the Husband as very
"dangerous" and "violent". The Wife described that, during arguments
between the parties, the Husband put a blanket over the Wife's head and
proceeded to choke her. The Husband once punched the Wife in the face,
and the Wife sustained a black eye. The Husband once threw a frying pan
at the Wife. The Husband once swung a vacuum at the Wife as if he was
swinging a baseball bat.
The Wife testified with respect to an incident in November, 2021. The
Husband punched the Wife in the face. The Wife had confronted the
Husband about spending money and going on out dates with other women in
the city while the parties could not even afford to pay their own bills.
The Husband was not working at this time. The Husband got upset that
the Wife broached this issue with him. The Wife was injured and she
suffered a black eye.
The Wife testified with respect to sexually transmitted infections
("STI's") that she was infected with by the Husband. The Wife testified
that the STI's that she was infected with were the direct result of the
Husband's affairs, as she was not sleeping with anyone else. The Wife
was in "agonizing" pain after she contracted them. The Wife went to her
gynecologist and was tested for STI's. The Wife tested positive for
herpes simplex virus 1 ("HSV-1"), herpes simplex virus 2 ("HSV-2") and
human papillomavirus ("HPV"). The HPV led to the development of
cancerous cells in the Wife's cervix. She had to have surgery to remove
these cells. The Wife now has to take medicine, namely, acyclovir, for
the rest of her life.
The Wife testified with respect to an incident in December, 2020. The
Husband's friend was staying with the parties. The Wife was home with
the child. The Husband and the Husband's friend went out, and, when they
returned, the Husband tried to bring another woman back to the home.
The Wife was home and the child was sleeping. After the Wife confronted
the Husband, the other woman sped off. The Husband went on a "rampage",
and he was smacking himself in head with his loaded gun. The Husband
told the Wife to "get the fuck out" or "I will kill you". The Husband
proceeded to point the gun at his friend. The friend jumped out the
window, and the Wife left to go and stay with her uncle.
The Wife testified with respect to the incident with the frying pan.
The kitchen sink had been clogged for approximately two weeks. The Wife
asked the Husband to fix it, but the Husband said that he would do it
when he wants to. The Husband then proceeded to pick up the greasy
frying pan, which was in the sink, and threw the frying pan at the Wife.
The Wife testified with respect to how the Husband's conduct made her
feel. She now has "crippling" anxiety and lives in "paralyzed fear"
every day. When the Wife would go to her uncle's home and stay there,
the Husband would tell the Wife that if she returned home, he would
"shoot her on site".
The Wife testified with respect to the Husband's weapons. They were
kept in the closet, but the Husband always kept a loaded gun on the
night table. The Husband, during the marriage, would purchase weapons
from the bank account at Chase bank ending xxx4438.
The Wife testified as to the residence located at 89 Baisley Avenue,
East Rockaway, New York (hereinafter referred to as the "East Rockaway
Residence"). It was purchased on April 1, 2019, which was prior to the
parties' marriage. The Wife took a $50,000 loan from her TDA for the
down payment. The Wife paid mortgage on the East Rockaway Residence. The
East Rockaway Residence was sold in May of 2022 for $450,962. The Wife
derived the sum of $3,934.55 in net proceeds of sale. The Wife sold the
East Rockaway Residence because she could no longer financially maintain
it. She seeks that the proceeds of sale be declared her separate
property.
The Wife testified with respect to her employment. She is a teacher
with the New York City Department of Education. She has been employed as
a teacher since 2009. In 2024, the Wife earned approximately $100,000.
The Wife testified with respect to the Husband's employment. The Husband worked in construction during the parties' marriage.
The Wife testified with respect to money contributed by the Husband.
Since the Husband's incarceration, he has not contributed anything to
the support of the subject child. The Wife was granted sole custody of
the subject child. Since the Husband's arrest, the Husband has not
provided the Wife with any support. The Wife pays food, clothing,
shelter, school, extracurricular activities, and, as she described it,
"everything". The Husband can earn minimum wage when he is released from
prison. The Husband worked before his incarceration and claimed that he
is taking college courses while he is in prison. The Wife seeks child
support retroactive to the date of commencement of this action.
The Wife testified with respect to her account at Chase Bank (ending
xxx438). This account was funded with the income that the Wife earned
from employment. This account was previously titled in the name of the
Wife and the Wife's mother. The Wife's mother is now deceased. At times,
there was money in the account from the Social Security for the Wife's
mother, which money was used to pay for the nursing home. There was some
money in this account from various jobs that the Husband had. However,
the Husband would pay for drugs from this account. This account had a
value of approximately $626.38 as of the date of the commencement of
this action. The Wife seeks to have this account declared her separate
property.
The Wife testified with respect to her account(s) Chase Bank (ending
xxx3301 and ending xxx9036). The Wife opened both of these accounts
after the commencement of this action.
The Wife testified with respect to retirement benefits. The Husband
does not have any retirement benefits. The Wife has retirement benefits
through her employment. The Wife has a Qualified Pension Plan
("hereinafter referred to as a "QPP") and a Tax Deferred Annuity
(hereinafter referred to as the "TDA") with the Teacher's Retirement
System. The Wife's TDA and QPP existed prior to parties' marriage and
the Wife was contributing to same prior to the parties' marriage. The
Wife was also contributing to the QPP and the TDA during the parties'
marriage. The Husband never contributed to the QPP or the TDA. The QPP
had a value of $18,374.25 as of the date of date of marriage and the TDA
had a value of $45,938.86 as of the date of marriage. The QPP had a
value of $22,369.77 as of March 1, 2022 and the TDA had a value of
$130,829.88 as of March 1, 2022. The Wife seeks that these accounts be
distributed such that she receive 100% of same.
The Wife testified with respect to her counsel fees. She paid her
counsel a $7,500 retainer and owes her counsel approximately $32,000.
The Husband has delayed this litigation. The Husband has ignored court
orders and refused to produce discovery.
Cross Examination
The Wife was questioned about the incident in the hospital in
February of 2022. The Wife acknowledged that there were other "patients"
in the room that she was in with the child when the Husband entered.
The Wife could not definitively say what color the gun was that the
Husband was holding, but testified that the gun was "maybe" black.
The Wife was questioned about confronting the Husband about his drug
use. The Wife conceded that when the Husband and his friend went out to
Manhattan together, it was approximately a two-hour round trip. When
asked why she did not call the police during this two-hour period of
time, the Wife responded that she was "nervous" to do so, and that she
figured that the Husband would be released back and would become more
violent when he was released.
The Wife was questioned about the Husband's jobs. There was a
business called "Aurora Home Repair". The Wife conceded that it was
"their" business" but also testified that the Husband ran the business.
The Husband was hired to paint a home, but only showed up on the job "a
few times". There were also people who sued the Husband because they
hired the Husband to perform work, but the Husband never finished the
work. One customer provided the Husband a "large deposit" for a basement
job, but the person who hired the Husband fired the Husband, and the
Husband never returned the deposit he received. The Husband also
performed work for friends and co-workers of the Wife.
The Wife was questioned about the East Rockaway Residence. The Wife
conceded that when she purchased the residence, the condition of it
"wasn't great" and she described it as "fair. The Wife acknowledged that
the residence needed "many" repairs. The Wife conceded that the Husband
did some of the repairs, but also testified that she did some of the
repairs, and that some of the repairs were done by friends and family.
The Wife conceded that the Husband rebuilt the kitchen. The Wife
conceded that the Husband "re-plumbed" the residence. The Wife conceded
that the Husband re-did the flooring. The Wife conceded that the Husband
did a majority of the siding, although it was never completed. When
asked how the proceeds of sale of the East Rockaway Residence were only
(approximately) $3,000, the Wife testified that she refinanced the home
because they had no money to pay their bills, and new mortgage on the
residence was higher than the initial mortgage. At the closing of title,
the mortgage was satisfied, commissions were paid, the lawyers were
paid, and closing costs were paid. The Wife acknowledged that the down
payment may have only been approximately ten (10%) percent of the
purchase price. The Wife conceded that the East Rockaway Residence
increased in value from when she purchased it, but she was unsure as to
whether the increase in value was due to market forces or because of
improvements on the residence.
The Wife was questioned about a motorcycle. The Wife owned a
motorcycle in her name. The payment for the motorcycle came from the
Chase Bank account (ending xxx4438). The purchase price was $7,000 and
it was purchased during the parties' marriage. The motorcycle was sold,
and the sale proceeds were $2,400. The motorcycle was sold after the
commencement of this action. The sale proceeds of $2,400 were deposited
into the Chase Bank account (ending xxx4438) and the sale proceeds were
spent on living expenses for the Wife and the child.
The Wife was questioned about her Chase Bank account (ending
xxx4438). The Wife conceded that the Husband made financial
contributions to this account. The Wife conceded that she spent money
from this account from the time of the Husband's arrest to the time of
the commencement of this action. While the Wife was not sure about the
amount she spent, the money went to pay for food, clothing and shelter.
The Wife was questioned about the purchasing of firearms/guns. The
Wife conceded that she purchased firearms, but those purchases were not
for herself. She purchased them because the Husband "made" or "forced"
her to do so. The Husband once sent the Wife a text message (when she
was approximately seven months pregnant), accusing the Wife of not
appreciating him. He also threatened to leave her if she did not do
anything nice to him. The Husband wanted a Mossberg 500. The Wife was
afraid at that time that the Husband would desert her and the child, so
she purchased a Mossberg 500 for the Husband.
The Wife was questioned about the Husband delaying the case. The Wife
conceded that the Husband had been "bounced around" two different
prisons.
The Wife was questioned about the child's extracurricular activities.
The child participates in dance, girl scouts and stem class. The Wife
has been paying for these costs without contribution from the Husband.
Re-Direct Examination
The Wife testified with respect to the $50,000 loan for the purchase
of the East Rockaway Residence. The down payment was $32,000, and the
balance of the money was used for home repairs.
The Wife testified with respect to some of the repairs on the East
Rockaway Residence. The Wife paid for the cost of the plumbing repairs.,
and she paid for the siding, which was never completed.
The Wife testified with respect to "Aurora Home Repair". While this
business was only registered to the Wife, it was done so only because
the Husband was in poor moral standing. The Husband owed $70,000 in
unpaid child support for his first child and had prior domestic violence
charges on his record. The Wife never performed any work for Aurora
Home Repair. It was dissolved during the parties' marriage, and there
were no remaining assets or funds.
The Wife testified as to the child's extracurricular activities. The
cost of dance is $85 per month. The cost of girl scouts is $100 for the
year plus the cost of field trips and parties. The cost of the stem
class is $30 per week.
Re-Cross Examination
The Wife was questioned about the cost of the siding and the pipes
for the plumbing repairs. She could not remember how much she paid for
this.
B. Husband's Case
1. Testimony of the Husband:
Direct Examination
The Husband testified in the form of a narrative. His position is
that anything he is awarded, he wants those monies to be held in escrow
for the benefit of the child. He wants to be reimbursed for the costs of
improving the East Rockaway Residence. He wants to be reimbursed for
the truck that was sold for $4,800, and he wants to be reimbursed for
the motorcycle that was sold for $2,400.
Cross Examination
The Husband was questioned about the sale of the RAM truck. The Husband conceded that he never produced a bill of sale.
The Husband was questioned about what he produced in this action. He
conceded that he did not produce any bank records. He conceded that he
never filed an Answer is this action.
The Husband was questioned about that he has paid on behalf of the
child since his incarceration. The Husband conceded that he has not paid
anything to the Wife since his incarceration.
Post-Trial Summations
Neither party submitted written post-trial summations to the Court.
The parties provided the Court with oral summations on October 20, 2025.
DECISION + ORDER
It is well established that where the findings of fact rest in large
measure on considerations relating to the credibility of the witnesses,
deference is owed to the trial court's credibility determinations. See Pappas v. Liapes, 138 AD3d 943 (2d Dept. 2016); see also Lawson-Groome v. Smalls, 144 AD3d 633 (2d Dept. 2016).
There were only two (2) witnesses at the trial: the Husband and the
Wife. The Court found the Wife to be remarkably credible. The Court
found the Husband to lack credibility.
GROUNDS
On October 20, 2025, an Inquest was held before this Court and the
Wife was granted a Judgment of Divorce pursuant to DRL § 170 subd. (7),
which Judgment was held in abeyance pending adjudication of the
remaining financial issues.
CUSTODY & PARENTING TIME
The issues of custody and parenting time were heretofore determined by the Court's May 2024 Order.
EQUITABLE DISTRIBUTION
DRL § 236(B)(5)(a) provides:
Except where the parties have provided in an agreement for
the disposition of their property pursuant to subdivision three of this
part, the court, in an action wherein all or part of the relief granted
is divorce . . . shall determine the respective rights of the parties in
their separate or marital property, and shall provide for the
disposition thereof in the final judgment.
The Domestic Relations Law recognizes that a marital relationship is
an economic partnership, and during such marriage, spouses share in both
its profits and losses. When the marriage is dissolved, however, courts
are charged to equitably distribute both the assets and liabilities
remaining from the marriage. Fields v. Fields, 15 NY3d 158 (2010).
A trial court considering the factors set forth in the Domestic
Relations Law has broad discretion in deciding what is equitable under
all of the circumstances. Krolikowski v. Krolikowski, 110 AD3d 1449 (4th Dept. 2013). In recognizing marriage as an economic partnership, DRL § 236 mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the courts to consider a number of statutory factors. Potvin v. Potvin, 193 AD3d 995 (2d Dept. 2021). DRL § 236(B)(1)(c) provides:
The term "marital property" shall mean all property acquired
by either or both spouses during the marriage and before the execution
of a separation agreement or the commencement of a matrimonial action,
regardless of the form in which title is held, except as otherwise
provided in agreement pursuant to subdivision three of this part.
Marital property shall not include separate property as hereinafter
defined.
Indeed, when it comes to the equitable distribution of marital
property, DRL § 236 (B)(5)(d)(13) authorizes the trial court to take
into account "any other factor which the court shall expressly find to
be just and proper." Consequently, the trial court has substantial
flexibility in fashioning an appropriate decree based on what it views
to be fair and equitable under the circumstances. Mahoney—Buntzman v. Buntzman, 12 NY3d 415 (2009). However, the Court is ever-mindful that equitable distribution does not necessarily indicate equal distribution. Henery v. Henery, 105 AD3d 903 (2d Dept. 2013); see also Ropiecki v. Ropiecki, 94 AD3d 734 (2d Dept. 2012).
It is well established that the fundamental purpose of equitable
distribution law is the recognition of marriage as an economic
partnership (see e.g. Fields v. Fields, 15 NY3d 158 (2010); Price v. Price, 69 NY2d 8 (1986); Mesholam v. Mesholam, 11 NY3d 24 (2008))
and that marital property "should be construed broadly in order to give
effect to the `economic partnership' concept of the marriage
relationship recognized in the statute" (see Price, supra; see also Burke v. Burke, 175 AD3d 458 (2d Dept. 2019)). In this case, the Court has carefully considered the factors in equitably distributing the marital assets as follows:
1. The income and property of each party at the time of marriage and
at the time of the commencement of the action. There was no documentary
evidence in the record at trial as to the income of either party at the
time of the marriage in 2019. There was no testimony or evidence in the
Record as to the property of the Husband at the time of the marriage.
The testimony and evidence in the Record reflected that the Wife owned
the East Rockaway Residence prior to the parties' marriage, and that she
participated in the QPP and TDA prior to the parties' marriage. This
action was commenced on April 11, 2022. Neither party provided proof of
their respective income(s) in 2022. The Wife earned $106,203 in 2024.[3] The Husband is currently incarcerated and earned $0.00 in 2024.
2. The duration of the marriage and the age and health of both
parties. These parties were married on May 21, 2019, and this action for
divorce and ancillary relief was commenced on April 11, 2022. This is a
marriage with a duration of approximately thirty-four (34) months. The
Wife is approximately forty (40) years old and the Husband is
approximately thirty-eight (38) years old. There was testimony in the
Record, which was uncontradicted, that the Wife now suffers from two
STI's which were transmitted to her by the Husband. There was no
evidence in the record at trial that the Husband suffers from any health
maladies or infirmities.
3. The need of a custodial parent to occupy or own the marital
residence and to use its household effects. The East Rockaway Residence,
which was the Wife's separate property (see infra), was sold.
4. The loss of inheritance and pension rights upon the dissolution of
the marriage as of the date of the dissolution. The Wife will lose the
right to inherit from the Husband and the Husband will lose the right to
inherit from the Wife, unless otherwise expressly set forth in the
Trust, if applicable.
5. Loss of health insurance benefits upon dissolution of marriage.
The Record was barren of any documentation concerning existing health
benefits of the parties, but, in any event, upon the entry of a Judgment
of Divorce, neither party will be permitted to be covered under the
other's health insurance plan, subject to his or her rights under COBRA.
6. Any award of maintenance. The Court has declined to award maintenance to either party (see infra).
7. Any equitable claim to interest in or direct or indirect
contribution made to the acquisition of such marital property of the
party not having title including joint efforts or expenditures and
contributions and services as a spouse, parent, wage earner and
homemaker, and to the career or career potential of the other party. The
Court does not find this factor to be applicable in this case.
8. The liquid or non-liquid character of all marital property. The
largest liquid asset(s) of this marriage at this time appear to be the
Wife's QPP and the Wife's TDA.
9. The probable future financial circumstances of each party. The
Husband is currently serving a term of incarceration and is unemployed.
The Wife earned approximately $106,000 in 2024. The Wife has been
gainfully employed for years. The Husband worked in construction prior
to his incarceration.
10. The impossibility or difficulty of evaluating any component asset
of any interest in a business, corporation or profession and the
economic desirability of retaining such asset or interest intact and
free from any claim or interference by the other party. This factor is
inapplicable.
11. The tax consequences to each party. There was no evidence in the
record at trial of the tax consequences that either party may face upon
the dissolution of their marriage and the distribution and allocation of
the marital assets and liabilities.
12. The wasteful dissipation of assets by either spouse. There was
testimony in the Record that the Husband used marital money to purchase
firearms and that he used marital money on nonmarital expenses, such as
on other women.
13. Any transfer or encumbrance made in contemplation of a
matrimonial action without fair consideration. There was no testimony or
proof that either party made a transfer or encumbrance in contemplation
of this matrimonial action.
14. Whether either party has committed an act or acts of domestic
violence, as described in subdivision one of section four hundred
fifty-nine-a of the social services law, against the other party and the
nature, extent, duration and impact of such act or acts. This factor
will be discussed in-depth herein (see infra).
15. In awarding the possession of a companion animal, the court shall
consider the best interest of such animal. This factor is inapplicable.
16. Any other factor which the court shall expressly find to be just
and proper. The Court has considered the fact that these parties were
married for less than three (3) years.
*
In equitable distribution, courts are charged with classifying,
valuing and distributing assets and liabilities. The initial
determination of whether a particular asset is marital or separate
property is a question of law. L.K.F. v. M.T.F., 82 Misc 3d 1223(A) (Supreme Court Nassau County 2024); see also Renck v. Renck, 131 AD3d 1146 (2d Dept. 2015). Each asset that is classified as marital property must be valued. See generally Sharabani v. Sharabani,
2017 NYLJ LEXIS 2707 (Supreme Court Kings County 2017) (once property
has been deemed marital, the Court must fix a valuation date). The
valuation of a marital asset must be founded in economic reality, and
valuation is an exercise properly within the fact-finding power of the
trial court. Davenport v. Davenport, 199 AD3d 637 (2d Dept. 2021).
However, what is a matter of the court's broad discretion is selecting
the dates for the valuation of marital assets and, depending on the
particular circumstances of the case, the court may appropriately fix
different valuation dates for different assets. Pappas v. Pappas, 140 AD3d 838 (2d Dept. 2016).
The trial court has broad discretion in selecting valuation dates and
may select any date between the date of commencement of the action and
the date of trial. Carter v. Fairchild-Carter, 199 AD3d 1291 (3d Dept. 2021); see also DRL § 236(B)(4)(b). The court must then distribute the particular asset, and a trial court is vested with broad discretion in making an equitable distribution of marital property. Mahoney v. Mahoney, 197 AD3d 638 (2d Dept. 2021) (emphasis added); see also Westbrook v. Westbrook, 212 AD3d 1014 (3d Dept. 2023) (court has substantial discretion to fashion equitable distribution of marital assets) (emphasis added).
*
Domestic Violence
In equitably distributing the parties' assets, the Court has given
substantial and profound weight to acts of domestic violence which were
perpetuated on the Wife by the Husband. Domestic violence can take many
forms. Domestic violence can exist through the interpersonal
relationship dynamics of two adults. K.E. v. A.E., 2025 NYLJ
LEXIS 3235 (Family Court Kings County 2025). The 2020 amendment to DRL §
236 (B)(5)(d)(14) requires the Court to consider whether a party has
committed acts of domestic violence, as that term is defined in the
Social Services Law § 459(a), and the nature, extent, duration, and
impact of such act or acts in determining equitable distribution of
martial assets. C.S. v. R.H., 87 Misc 3d 1201(A) (Supreme Court New York County 2025). See also A.S. v. A.B., 84 Misc 3d 692 (Supreme Court Kings County 2024) (domestic violence is a factor that the courts shall consider when determining equitable distribution (emphasis added)).
1. Sexually Transmitted Infection(s)
During the Wife's direct testimony on her case-in-chief, she
began sobbing when questioned regarding how she contracted certain
STI's. The Wife credibly — and remarkably — testified that she was not
engaging in sexual intercourse with any other individual but the
Husband. The Wife's credible testimony established that she tested
positive for HSV-1, HSV-2 and HPV[4]
during the parties' marriage. The Wife's testimony that she was in
"agonizing" pain after she contracted these STI's was strikingly
credible to the Court. The Wife also credibly testified that her
contraction of HPV led to the development of cancerous cells, which she
had to have surgically removed, and that her contraction of HSV requires
her to take acyclovir — an antiviral medication — for the rest of her
life. Critically, the Husband never refuted the Wife's testimony with
respect to how, and more importantly from whom, she contracted HSV-1,
HSV-2 and HPV. Stated simply, the Wife is a victim of domestic violence.
Social Services Law § 459-a(1) defines a victim of domestic violence as:
1. "Victim of domestic violence" means any person over the
age of sixteen, any married person or any parent accompanied by his or
her minor child or children in situations in which such person or such
person's child is a victim of an act which would constitute a violation
of the penal law, including, but not limited to acts constituting
disorderly conduct, harassment, aggravated harassment, sexual
misconduct, forcible touching, sexual abuse, stalking, criminal
mischief, menacing, reckless endangerment, kidnapping, assault,
attempted assault, attempted murder, criminal obstruction of breathing
or blood circulation, strangulation, identity theft, grand larceny or
coercion; and
(i) such act or acts have resulted in actual physical or
emotional injury or have created a substantial risk of physical or
emotional harm to such person or such person's child; and
(ii) such act or acts are or are alleged to have been committed by a family or household member.
In People v. Williams, the victim and the defendant engaged in sexual encounters which led to them having unprotected sexual intercourse. People v. Williams, 24 NY3d 1129, 1130 (2015).
The defendant assured the victim that it was safe to engaged in
unprotected sexual intercourse, with the victim and the defendant
previously discussing the HIV virus and the need to be careful to avoid
infection. Williams, 24 NY3d at 1130.
After the victim learned that he was HIV positive, the defendant
admitted that he had been diagnosed with HIV prior to the defendant and
the victim becoming intimate. Id. at 1131. The trial court
therein reduced the defendant's conviction of first-degree reckless
engagement to second-degree reckless endangerment. Id. at 1129.
In Doyle v. Kennedy, the parties therein began dating in April, 2021. Doyle v. Kennedy,
2024 NY Misc. LEXIS 64183 (Supreme Court New York County 2024). The
defendant had assured the plaintiff that he had tested negative for any
sexually transmitted infection(s) in or around March, 2020, and that he
did not engage in any sexual activity with any person since that test. Doyle, 2024 NY Misc. LEXIS at *1. The plaintiff, therefore, assented to unprotected sexual intercourse. Id. The plaintiff learned, in June, 2021, that she had tested positive for herpes. Id.
The plaintiff later learned that the defendant's most recent STI test
was, in fact, in May, 2019, and that the defendant had sexual
intercourse with a high-risk individual for an STI on New Year's of
2021. Id. The plaintiff thereupon commenced an action,
interposing causes of action for assault and battery, intentional
infliction of emotional distress, negligence/gross negligence, the
Victims of Gender-Motivated Violence Protection Act; and assault and
battery, rape, criminal sexual act, and aggravated sexual abuse. Id. In its decision, the Court wrote:
However, the facts alleged here, taken as true, do not constitute a
sexual offense under any provision of Article 130 of the Penal Law or as
incest under [Penal Law] §§ 255.26 or 255.27. Rather, the complaint's
allegations support a charge of reckless endangerment under [Penal Law]
§§ 120.20 or 120.25 . . . or a violation of [Public Health Law] § 2307,
which provides that any person who, knowing himself or herself to be
infected with an infectious venereal disease, has sexual intercourse
with another shall be guilty of a misdemeanor.
Id. at 6 (internal citations omitted).
New York Penal Law § 120.20 defines reckless endangerment in the second degree as:
A person is guilty of reckless endangerment in the second
degree when he recklessly engages in conduct which creates a substantial
risk of serious physical injury to another person.
Reckless endangerment requires proof of reckless conduct. People v. Jakobson, 119 AD3d 815 (2d Dept. 2014). Reckless endangerment cannot be found in the absence of actual and substantial risk of serious physical injury. Matter of Lashlee v. Lashlee, 145 AD3d 723 (2d Dept. 2016).
Often, there is no direct evidence of a defendant's mental state and
the mens rea must be inferred circumstantially from the surrounding
facts. People v. Smith, 79 AD2d 309 (1992). In order to establish
that defendant engaged in reckless endangerment, the risk created by a
defendant's conduct must be foreseeable and the conduct must actually
create a risk of serious physical injury, and, additionally, there must
be demonstrated a gross deviation from the standard of conduct of a
reasonable person. People v. Kohler, 2024 NY Misc. LEXIS 70136 (Justice Court Torn of Clearance 2024). New York Penal Law § 15.05(3) provides:
Recklessly. A person acts recklessly with respect to a
result or to a circumstance described by a statute defining an offense
when he is aware of and consciously disregards a substantial and
unjustifiable risk that such result will occur or that such circumstance
exists. The risk must be of such nature and degree that disregard
thereof constitutes a gross deviation from the standard of conduct that a
reasonable person would observe in the situation. A person who creates
such a risk but is unaware thereof solely by reason of voluntary
intoxication also acts recklessly with respect thereto.
The Court finds that the Husband acted reckless when he transmitted
the HSV-1, HSV-2 and HPV virus(es) to the Wife by engaging in
unprotected sexual intercourse with her after having an affair. Marriage
occupies sacrosanct ground. People v. Lucas, 80 Misc 3d 574 (Supreme Court Albany County 2023). The annals of human history reveal the transcendent importance of marriage. Obergefell v. Hodges, 576 U.S. 644 (2015). Rising from the most basic human needs, marriage is essential to our most profound hopes and aspirations. Obergefell, 576 U.S. at 657.
Marriage is more than a mere contract, and once the contract of
marriage is executed, a relationship is created between the parties
which is regulated by law. Spalter v. Spalter, 234 AD3d 508 (1st Dept. 2025).
Naturally implicit in any marriage is trust. While this Court cannot
stand in judgment of the Husband for astraying from his marriage to the
Wife by having an extramarital affair, the Court can certainly consider
the consequences of it. While every individual is, of course, free to
make choices, one must own those choices, especially when they come with
adverse consequences. Indeed, while people seek to dissolve their
marriages, and while no marriage may last forever, a marriage is not a
license — nor should it be treated as permission — for one spouse to
contract an STI and transmit that STI to the other spouse. Stated as
simply as it can be: in that instance, there must be consequences.
The Court is able to infer the existence of the Husband's affair due
to the Wife's credible testimony with respect to the incident where the
Husband returned to the East Rockaway Residence with another female.
Coupled with that inference, the Husband never denied the Wife's
allegation(s) that he was engaged in an extramarital affair. Morever, it
is readily apparent that the Wife had not contracted any STI's prior to
the parties' marriage, but had only contracted same after the parties'
marriage. Finally, the Wife credibly testified that she was, in effect,
not engaging in sexual relations with anyone else other than the
Husband. The upshot being, therefore, that the Wife could have only
contracted STI's from the Husband. The Court finds that the Husband
acted recklessly when he engaged in an extramarital affair, which put
him at risk of — and resulted in him — contracting HSV-1, HSV-2 and HPV.
And the Husband, after engaging an an extramarital affair, thereafter
having unprotected sexual intercourse with the Wife, constitutes the
appropriate degree of recklessness to conclude that the Husband
committed reckless endangerment. The Court finds that the risk created
by the Husband's conduct was foreseeable, namely, that having
unprotected sexual intercourse with someone not his spouse carried with
it the risk of transmission of an STI and the Court concludes that the
Husband's conduct created a risk of physical injury, namely, the Wife's
excruciating pain and the cancer cells which developed. Lastly, the
Husband's unprotected sexual intercourse with someone not his spouse was
a gross deviation from the standard of conduct of a married person.
2. Physical Acts/Treats
Additionally, the Court has also considered the Husband's other acts
of domestic violence. To this end, the Court has considered the incident
on February 17, 2022 at Cohen's Children's Hospital when the Husband
pointed a gun at the Wife and the child and told the Wife that if she
returned to the East Rockaway Residence, he would shoot her on site. The
Court has also considered the Husband's conduct of putting a blanket
over the Wife's head and choking her, the Husband punching the Wife in
the face, which caused the Wife to sustain a black eye,[5]
and the Husband throwing a frying pan at the Wife. The Wife testified
to all of these incidents credibly, and the Husband, critically, failed
to refute the Wife's allegations. The Court has also considered, in
assessing the Husband's conduct, the Husband's test message to the Wife[6]:
Wife: So now what
Husband: Now you come back here and I kill you
And then me
Idc [sic]
Done
Test it if you want to
Wife: I think we should just talk. I don't want to fight with u [sic]
Husband: I can't do that
I'm going to kill us
Wife: That makes no sense
*
A. East Rockaway Residence
Classification. These parties were married on May xx, 2019.
The deed to the East Rockaway Residence reflects that the Wife acquired
same in her sole name on April 1, 2019.[7] Property acquired before the marriage is separate property. Rosenstock v. Rosenstock,
53 Misc 3d 1218(A) (Supreme Court Kings County 2016). Inasmuch as the
Wife acquired the East Rockaway Residence prior to the parties'
marriage, the Court ordinarily would have classified same as her
separate property. However, there is no dispute that the East Rockaway
Residence was sold.
Other Claims. The closing statement to the East Rockaway
Residence reflects that the Wife received net proceeds of $3,934.55.
Inasmuch as the East Rockaway Residence would have been classified as
the Wife's separate property (see supra), the Husband is not
entitled to a share in the net proceeds of sale. The Husband produced no
evidence at trial as to how much, if at all, the mortgage on the East
Rockaway Residence was paid-down during the marriage. Therefore, he
failed to substantiate any claims with respect to the parties'
post-marriage principal mortgage pay down. In addition, while there was
testimony that the Husband performed repairs on the East Rockaway
Residence during the parties' marriage, the Husband failed to
substantiate how much money was spent on the repairs performed.
Likewise, the Husband failed to offer into evidence any cognizable proof
of the increase in value, if any, of the East Rockaway Residence as a
result of the work performed on same. Therefore, the Court declines to
award the Husband any relief with respect to same. Accordingly, it is
hereby:
ORDERED, that the net proceeds of sale of the East Rockaway Residence
shall be deemed the Wife's sole and separate property; and it is
further
ORDERED, that the Husband has no claim, marital, equitable or otherwise in and to the East Rockaway Residence.
B. The Parties' Vehicles
Classification. There was no testimony or evidence at trial
regarding ownership of any vehicles by the Husband. The Wife purchased a
Toyota Corola on December 1, 2023, which was after the commencement of
this action. Inasmuch as the Wife acquired the Toyota Corola after the
commencement of this action, said vehicle is, therefore, the Wife's
separate property. Accordingly, it is hereby:
ORDERED, that the Husband shall be responsible for any and all cost(s) associated with his vehicle(s); and it is further
ORDERED, that the Toyota Corola automobile be and shall be the Wife's sole and separate property; and it is further
ORDERED, that the Wife shall be responsible for any and all cost(s) associated with her Toyota Corola vehicle.
C. Personal Property
Classification. There was no testimony or evidence with
respect to the issue of personal property. The Court therefore declines
to distribute any personal property. Accordingly, it is hereby:
ORDERED, that each party shall retain any personal property in his or her respective possession(s).
D. Wife's Case Bank Checking Account (account number ending xxx4438)
Classification. The Wife's checking account at Chase Bank
(ending xxx4438) was previously titled in the name of the Wife and the
Wife's mother (who is now deceased). The evidence at trial was
insufficient to establish the opening date of the account, but there was
testimony that money earned by the Wife during the marriage was
deposited into this account. The Court therefore classifies this account
as a marital asset subject to equitable distribution.
Valuation. The only statement in evidence at Trial for this account reflects an account value of $626.38 as of April 12, 2022.[8]
The Court therefore values this account as of April 12, 2022, which is a
date closest in time to the date of commencement of this action, and
values the account at $626.38.
Distribution. The Court declines to equitably distribute any
portion of this account to the Husband such that the Wife shall receive
one hundred (100%) percent of this account. In arriving at that
distribution, the Court has considered the substantial acts of domestic
violence perpetuated by the Husband against the Wife, the de minimis
value of the account as of April 12, 2022, and the fact that there was
testimony at trial that some of the funds in this account were used to
pay for the nursing home for the Wife's mother. Accordingly, it is
hereby:
ORDERED, that the Wife's checking account at Chase Bank (account
number ending xxx4438) shall be distributed such that the Wife shall
receive one hundred (100%) percent of the value of this account.
E. Wife's Chase Bank Checking Account (account number ending xxx3301)
Classification. While the Wife testified that she opened this
account after the commencement of this action, the Wife's Statement of
Net Worth reflects that it was opened on February 22, 2022, which was
just prior to the commencement of this action. Therefore, the Court has
no choice but to classify this account as a marital asset subject to
equitable distribution.
Valuation. No evidence was submitted at the trial as to the
value of this account on the date of commencement of this action. The
Wife's Statement of Net Worth reflects an account balance of $2,758.00
as of August 15, 2025, which is the date in time closest to trial.
Therefore, the Court values this account as of August 15, 2025, and
values same at $2,758.00.
Distribution. The Court declines to award the Husband
equitable distribution of this account, and distributes the account to
the Wife such that she shall receive one hundred (100%) percent of same.
In arriving at that distribution, the Court has considered the fact
that this account was opened a mere two months prior to the commencement
of this action and the fact that this account was opened during a
period of time when the parties were physically separated. Accordingly,
it is hereby:
ORDERED, that the Wife's checking account at Chase Bank (account
number ending xxx3301) shall be distributed such that the Wife shall
receive one hundred (100%) percent of the value of this account.
F. Wife's Chase Bank Savings Account (account number ending xxx9036)
Classification. The Wife testified at the trial that this
account was opened after the commencement of this action. While there
was no documentary evidence introduced in evidence at trial as to the
value, or the date of opening of the account, the Court finds the Wife
to have testified credibly in this regard. The Husband produced no
evidence to refute this testimony. Therefore, it is hereby:
ORDERED, that the savings account at Chase Bank (account number
ending xxx9036) shall be deemed the Wife's sole and separate property.
G. Wife's QPP Account
Classification. While the Wife acquired her QPP account prior
to the parties' marriage upon her commencement of employment as a
teacher, there is no question that the Wife was contributing to her QPP
during the parties' marriage. Therefore, the Court classifies a portion
of the Wife's QPP Account as marital property subject to equitable
distribution. Valuation. As of March 31, 2022, the Wife's QPP Account was worth $22,369.77.[9]
This action was commenced on April 11, 2022, so the Court cannot value
the account as of March 31, 2022. The Wife's Statement of Net Worth
reflects that her QPP was valued as $13,527 as of the date of
commencement of this action. There was no evidence of the account value
as of the date of trial. Therefore, the Court values the QPP Account as
of April 12, 2022, which is the date of the commencement of this action,
and values the QPP at $13,527.00. Distribution. The Court awards
the Wife one hundred (100%) percent of the value of the QPP Account,
and declines to distribute any portion of this account to the Husband.
The reason for arriving at that conclusion is the Husband's profound
acts of domestic violence against the Wife, including transmitting to
her HSV-1, HSV-2 and HPV, which have caused the Wife to require
medication for the rest of her life and to undergo surgery for the
removal of cancer cells, and the Husband threatening to kill the Wife by
telling her he would "shoot her on site" and the Husband punching the
Wife in the face. Accordingly, it is hereby:
ORDERED, that the Wife's QPP Account shall be distributed such that
the Wife shall receive one hundred (100%) percent of the value of this
account.
H. Wife's TDA Account
Classification. While the Wife acquired her TDA account prior
to the parties' marriage upon her commencement of employment as a
teacher, there is no question that the Wife was contributing to her TDA
during the parties' marriage. Therefore, the Court classifies a portion
of the Wife's TDA Account as marital property subject to equitable
distribution. Valuation. As of March 31, 2022, the Wife's TDA Account was worth $130,829.88.[10]
This action was commenced on April 11, 2022, so the Court cannot value
the account as of March 31, 2022. The Wife's Statement of Net Worth
reflects that her TDA was valued as $90,339 as of the date of
commencement of this action. There was no evidence of the account value
as of the date of trial. Therefore, the Court values the TDA Account as
of April 12, 2022, which is the date of the commencement of this action,
and values the TDA at $90,339. Distribution. The Court awards
the Wife one hundred (100%) percent of the value of the TDA Account, and
declines to distribute any portion of this account to the Husband. The
reason for arriving at that conclusion is the Husband's profound acts of
domestic violence against the Wife, including transmitting to her
HSV-1, HSV-2 and HPV, which have caused the Wife to require medication
for the rest of her life and to undergo surgery for the removal of
cancer cells, and the Husband threatening to kill the Wife by telling
her he would "shoot her on site" and the Husband punching the Wife in
the face. Accordingly, it is hereby:
ORDERED, that the Wife's TDA Account shall be distributed such that
the Wife shall receive one hundred (100%) percent of the value of this
account.
MAINTENANCE[11]
For matrimonial actions commenced after January 23, 2016, the post
divorce maintenance guidelines as contained in DRL § 236(B), which
establishes a formula and guidelines, must be applied. The court must
first apply one of two formulas based on the parties' respective
incomes, capping the Payor's income at $228,000.00. Where the Payor's
income is below or equal to the income cap and is also paying child
support to the Payee, the calculation is as follows: calculate 20% of
the Payor's income (up to $228,000.00) and subtract 25% of the Payee's
income. Then, the Court must calculate 40% of the parties' combined
income (capping the Payor's income at $228,000.00) and subtract the
Payee's income. Next, the Court compares the resulting amounts from both
calculations and the lesser amount is the presumptive amount of
maintenance. The statute expressly provides that maintenance shall be
calculated prior to child support because the amount of maintenance
awarded shall be subtracted from the Payor's income and added to the
Payee's income as part of the calculation of the child support
obligation.
Notwithstanding the formulas set forth above, the statute provides
the Court with flexibility to deviate from the presumptive amount of
temporary maintenance. Thus, the Court may, in its discretion, adjust
the award of maintenance in a situation where: (i) the Payor's income
exceeds the statutory cap of $228,000.00; or (ii) the Court finds that
the guideline amount of maintenance would be unjust and inappropriate.
If the Court chooses to do so, it shall consider any one or more of a
list of factors set forth in the statute. The aforementioned factors are
as follows (see DRL § 236[B][6][e][1]):
a) The age and health of the parties;
b) The present or future earning capacity of the parties, including a history of limited participation in the workforce;
c) The need of one party to incur education or training expenses;
d) The termination of a child support award during the
pendency of the temporary maintenance award when the calculation of
temporary maintenance was based upon child support being awarded and
which resulted in a maintenance award lower than it would have been had
child support not been awarded;
e) The wasteful dissipation of marital property, including
transfers or encumbrances made in contemplation of a matrimonial action
without fair consideration;
f) The existence and duration of a pre-marital joint household or a pre-divorce separate household;
g) Acts by one party against another that have inhibited or
continue to inhibit a party's earning capacity or ability to obtain
meaningful employment. Such acts include but are not limited to acts of
domestic violence as provided in section 459-A of the Social Services
Law;
h) The availability and cost of medical insurance of the parties;
i) The care of children or stepchildren, disabled adult children or
stepchildren, elderly parents or in-laws provided during the marriage
that inhibits a party's earning capacity;
j) The tax consequences to each party;
k) The standard of living the parties established during the marriage;
l) The reduced or lost earning capacity of the payee as a
result of having forgone or delayed education, training, employment or
career opportunities during the marriage; and
m) The equitable distribution of marital property and the income or imputed income on the assets so distributed;
n) The contributions and services of the payee as a spouse,
parent, wage earner and homemaker and to the career or career potential
of the other party; and
o) Any other factor which the court shall expressly find to be just and proper.
When the Court determines that the guideline amount of maintenance
would be unjust or inappropriate, the Court shall set forth, either in
writing or on the record, the factor(s) it considered, the reasons for
the deviation, and also the guideline amount of maintenance (see DRL
§236[B][5-a][h][1]). The Court considered the statutory factors when
determining the amount and duration of maintenance. In particular, the
Court considered:
A. Duration of the Marriage, Age and Health of the Parties.
The parties were married on May 21, 2019. This action for divorce was
commenced on April 11, 2022. This is a marriage of approximately
thirty-five (35) months. The Wife is approximately forty (40) years old
and the Husband is approximately thirty-eight (38) years old. There was
no testimony or evidence that the Husband suffers from any health
maladies or infirmities. The testimony revealed that, because of the
Husband, the Wife became infected with multiple STI's (see supra), one of which caused cancer cells to develop in the Wife.
B. Present and Future Earning Capacity. The Wife is gainfully
employed as a teacher and, in 2024, her gross income was $106,203.00.
The Husband is currently incarcerated and does not earn any income.
C. Need to Incur Education or Training Expenses. There was no testimony offered with respect to either party's need to incur education or training expenses.
D. Termination of Child Support Award During Pendency of Temporary Maintenance Award. No order of temporary maintenance was issued by the Court during the pendency of this action. No order of pendente lite basic child support was issued during the pendency of this action. Therefore, this factor is inapplicable.
E. Wasteful Dissipation of Marital Property. The Wife
testified and alleged that the Husband wastefully dissipated assets by
purchasing guns and parts for guns and that he spent marital funds on
other women.
F. Existence and Duration of a Pre-Marital Joint Household/Pre-Divorce Separate Household. This is a very short-term marriage of only thirty-five (35) months.
G. Acts Inhibiting a Party's Earning Capacity/Ability to Obtain Meaningful Employment.
There was no testimony or evidence that either party undertook an act
which inhibited or prevented the other party from obtaining meaningful
employment.
H. Availability and Cost of Medical Insurance. There was minimal testimony and/or evidence, if any at all, regarding the cost of medical insurance.
I. Care of Children/Step-Children. The Court has considered
the fact that the Husband has been incarcerated, and that the child has
been living with the Wife for years. The Court has also considered that
the Husband was directed not to have any contact or communication with
the child pursuant to the May 2024 Order and that there is an Order of
Protection in favor of the child against the Husband until the year
2039.
J. Tax Consequences. There was no testimony or evidence as to the tax consequences of any maintenance award in this matter.
K. Standard of Living Established During Marriage. There was little, if any, testimony regarding the parties' standard of living.
L. Reduced or Lost Earning Capacity of Payee. While the Husband is incarcerated which impedes his ability to earn income, he is incarcerated because of his own actions.
M. Equitable Distribution of Marital Property. The Court has
considered, among other things, that is has awarded the Wife one hundred
(100%) percent of the marital property because of the substantial and
profound domestic violence of the Husband.
N. Contributions/Services of Payee Spouse. The Court gives
little, if any, weight to this factor, as the Court notes that both
parties have always worked full-time and that the Wife was always the
primary caretaker of both children.
O. Any Other Factor that the Court Finds Just and Proper. The parties have been physically separated for years.
*
1. Determination of Income
Prior to reaching its determination of the appropriate amount of
post-divorce maintenance, if any, the Court must determine the incomes
of the parties. The Court notes that both parties are W-2 wage earners,
and neither party has made an allegation that the other receives any
income other than what has been claimed by the other party.
A. Husband's Income. The Husband is incarcerated and earned $0.00 in 2024.
B. Wife's Income. The Wife's 2024 Form 1040 U.S. Individual Income Tax Return reflects W-2 income of $106,203.00.[12] Her gross income, for purposes of of computing spousal maintenance, is $98,078.48.[13]
2. Statutory Computations — DRL § 236(B)(6)(d)(1)
Pursuant to the aforesaid statutory calculations, this Court utilized
the calculation where the Payor is not paying child support to the
Payee.[14]
Accordingly, the Court made the following computation based upon the
respective imputed income(s) to each of the party(ies): the payor's
percentage ($98,078.48 × 30% = $29,423.54) minus the payee's percentage
($0.00 × 20% = $0.00) = $29,423.54. The Court then compared this
resulting number with the following: payor's income ($98,078.48) plus
payee's income ($0.00), which equals $98,078.48 × 40%, which equals
$39,231.39. Next, the Court subtracted one hundred percent (100%) of the
payee's income ($0.00 from $39,231.39), which equals $39,231.39. The
lesser of these amounts is the "presumptive award" pursuant to the
statute, which is $29,423.54 per year, or the sum of $2,451.96 per
month.
3. Factors Considered — DRL § 236(B)(6)(d)(3)
The Court finds the presumptive amount of maintenance of $2,451.96
per month to be unjust and inappropriate in this case, and the Court
declines to award the Husband any maintenance, based upon the
multiplicity of factors set forth herein, in addition to that which is
set forth aforesaid (see supra). First, the Court has considered the age and health of the parties. See
DRL § 236(B)(6)(e)(1)(a). The Court has considered that the Husband is
only thirty-eight (38) years old, and, upon his release from
incarceration, nothing is stopping the Husband from obtaining employment
and earning income. Second, the Court has considered the existence and duration of a pre-marital joint household or a pre-divorce separate household. See
DRL § 236(B)(6)(e)(1)(f). To this point, the Court notes that this is a
marriage of only thirty-five (35) months, and the parties did not
reside together for a significant period of time. Third, the Court has considered the standard of living the parties established during the marriage. See
DRL § 236(B)(6)(e)(1)(k). Neither party introduced evidence or
convinced the Court that these parties lived a life of luxury, so the
Court does not find that either party is in actual need of maintenance.
Also, there was no evidence at trial at all of the parties' lifestyle. Fourth, the Court has considered any other factor that it finds just and proper. See DRL § 236(B)(6)(e)(1)(o). These parties have been living separately for years. Fifth,
and finally, the Court has considered that the Husband failed to submit
a sworn Statement of Net Worth during this trial, which would have
warranted a denial of an application for spousal maintenance on
procedural grounds.[15]
4. Conclusion
Accordingly, based upon all of the aforesaid factors and the facts and circumstances of this case, it is hereby:
ORDERED, that neither party is awarded maintenance.
BASIC CHILD SUPPORT
Child support is awarded pursuant to the Child Support Standards Act
(hereinafter referred to as the "CSSA"). The CSSA sets forth a formula
for calculating child support by applying a designated statutory
percentage, based upon the number of children to be supported, to
combined parental income up to a particular ceiling known as the
statutory cap. Miller v. Miller, 216 AD3d 1154 (2d Dept. 2023).
The CSSA provides a three-step method for calculating child support.
The first step is to compute combined parental income. Second, the
combined parental income is multiplied by a designated percentage based
upon the number of children to be supported. Finally, that amount is
then allocated between the parents by applying each parent's respective
portion to the total income. Hughes v. Hughes, 200 AD3d 1404 (3d Dept. 2021).
Under CSSA, the court must determine the amount to be paid to the
custodial parent based on a percentage of the parents' total income for
child support purposes. The court applies a percentage to that income,
less certain deductions, up to $183,000.00.
For child support purposes, after deducting FICA Social Security
taxes and FICA Medicare taxes from each party's gross wages/gross pay,
the income of the Wife is $98,078.48 (see supra) and the income of the Husband is $0.00[16] (see supra). The combined parental income of $98,078.48. The Wife's pro rata share of the combined parental income is one hundred (100%) percent and the Husband's pro rata
share of the combined parental income is zero (0%) percent. The
applicable child support percentage is seventeen (17%) for the one (1)
unemancipated child, which in this case equals $16,673.34 as and for a
combined child support obligation. Therefore, the Husband's pro rata
share (to wit: 0%) of the combined child support obligation is $0.00 per
year or $0.00 per month and Wife's pro rata share (to wit: 100%) of the
combined child support obligation is $16,673.34 per year or $1,389.45
per month.
However, DRL § 240(1-b)(f) provides:
The court shall calculate the basic child support
obligation, and the non-custodial parent's pro rata share of the basic
child support obligation. Unless the court finds that the non-custodial
parents's [parent's] pro-rata share of the basic child support
obligation is unjust or inappropriate, which finding shall be based upon
consideration of the following factors:
(1) The financial resources of the custodial and non-custodial parent, and those of the child;
(2) The physical and emotional health of the child and his/her special needs and aptitudes;
(3) The standard of living the child would have enjoyed had the marriage or household not been dissolved;
(4) The tax consequences to the parties;
(5) The non-monetary contributions that the parents will make toward the care and well-being of the child;
(6) The educational needs of either parent;
(7) A determination that the gross income of one parent is substantially less than the other parent's gross income;
(8) The needs of the children of the non-custodial parent
for whom the non-custodial parent is providing support who are not
subject to the instant action and whose support has not been deducted
from income pursuant to subclause (D) of clause (vii) of subparagraph
five of paragraph (b) of this subdivision, and the financial resources
of any person obligated to support such children, provided, however,
that this factor may apply only if the resources available to support
such children are less than the resources available to support the
children who are subject to the instant action;
(9) Provided that the child is not on public assistance (i)
extraordinary expenses incurred by the non-custodial parent in
exercising visitation, or (ii) expenses incurred by the non-custodial
parent in extended visitation provided that the custodial parent's
expenses are substantially reduced as a result thereof; and
(10) Any other factors the court determines are relevant in
each case, the court shall order the non-custodial parent to pay his or
her pro rata share of the basic child support obligation, and may order
the non-custodial parent to pay an amount pursuant to paragraph (e) of
this subdivision.
The Court elects to upwardly deviate from the presumptive amount of child support of $0.00.[17]
In arriving at this determination, the Court has expressly considered
the standard of living the child would have enjoyed had the marriage or
household not been dissolved. See DRL § 240(1-b)(f)(3). In this
respect, a review of the Wife's Statement of Net Worth reveals aggregate
expenses of $3,270.00 per month for the costs of housing and food and
clothing for the child. Therefore, the Court upwardly deviates from the
presumptive amount of basic child support under the CSSA and directs the
Husband to pay basic child support in the sum of $1,660.00 per month.
Shelter costs, like food and clothing, inhere in the basic child support
obligation. Iacono v. Iacono, 145 AD3d 972 (2d Dept. 2016).
There is simply no reason why the Husband should not be contributing
towards 50% of those costs of the child, especially given that the
Wife's pro rata share of the statutory add-on expenses set forth herein require her to pay for 100% of those costs (see infra). A party's child support obligation commences, and is retroactive to, the date the application was made. See DRL § 236(B)(7)(a); see also Malkani v. Malkani, 208 AD3d 863 (2d Dept. 2022). The Wife requested child support for the parties' children in the Rider to her Verified Complaint[18] filed with the Court on April 11, 2022. Therefore, the award is made retroactive to April 11, 2022. Accordingly, it is hereby:
ORDERED, that the Wife is awarded and the Husband is hereby directed
to pay basic child support for the one (1) unemancipated child, A.S., in
the monthly sum of $1,660.00 per month, commencing on first day of the
first full month following the date of this Decision and Order and
payable prospectively on the first (1st) of each month thereafter until
the emancipation of the first child; and it is further
ORDERED, that this award is retroactive to April 11, 2022, the date
of first request. Retroactive basic child support arrears are hereby
calculated to be and fixed at $72,486.66.[19]
Retroactive sums due by reason of this basic child support award shall
be paid at the rate of $500.00 per month in addition to the sums awarded
until all arrears have been satisfied. The Husband is entitled to a
credit for sums paid for actual maintenance and support of the children (see Peltz v. Peltz, 56 AD2d 519 (1st Dept. 1977); see also Pascale v. Pascale, 226 AD2d 439 (2d Dept. 1996)); and it is further
ORDERED, that unless otherwise agreed to by the parties in writing,
the Husband's basic child support obligation shall be paid through the
Support Collection Unit/Child Support Enforcement Bureau.
HEALTH INSURANCE
Domestic Relations Law § 240(1) provides, in part, "[w]here employer
or other organization subsidized health insurance coverage is available,
the court shall order the legally responsible relative to enroll
eligible dependents" for coverage under the policy". Vlak v. Nelissen, 206 AD2d 521 (2d Dept. 1994).
New York Codes, Rules and Regulations defines a legally responsible
relative as "any person who is legally obligated to furnish support for a
child, or spouse and child". N.P. v. D.M., 2024 NYLJ LEXIS 3631
(Family Court Nassau County 2024). The Court has granted the Wife sole
legal custody of the child. It therefore finds it appropriate to direct
the Wife, the custodial parent of the child, to enroll the child, to the
extent not already enrolled, in her health insurance plan. Accordingly,
it is hereby:
ORDERED, that, to the extent not already enrolled, the Wife shall
enroll the child in her health plan and shall maintain such health
insurance coverage for the child until the child's emancipation; and it
is further
ORDERED, that the Wife shall pay one hundred (100%) percent of the child's monthly health insurance premiums.[20]
UNREIMBURSED/UNINSURED HEALTH CARE EXPENSES
With respect to unreimbursed health care expenses, pursuant to
Domestic Relations Law § 240 (1-b)(c)(5)(v), each parent's share of
unreimbursed health care expenses is to be prorated in the same
proportion as each parent's income is to the combined parental income. See generally Castello v. Castello, 144 AD3d 723 (2d Dept. 2016). Accordingly, it is hereby:
ORDERED, that the cost of the unemancipated child's reasonable
uninsured/unreimbursed medical, dental, pharmaceutical and optical
expenses incurred by or on behalf of the unemancipated child shall be
paid with the Wife one hundred (100%) percent of said expenses, provided
in-network providers are utilized absent an emergency, or if the child
have a pre-existing relationship with an out-of-network provider.[21]
CHILD CARE EXPENSES
With respect to child care expenses, pursuant to the CSSA, where the custodial parent incurs child care expenses as a result, inter alia,
of employment or vocational training, the noncustodial parent may be
required to pay his or her proportionate share of such expenses as a
supplement to the basic support obligation, and such expenses shall be
prorated in the same proportion as each parent's income is to the
combined parental income (see DRL § 240(1-b)(c)(4); see McBride v. McBride, 238 AD2d 320, 321, (2d Dept. 1997). See Matter of Wallin v. Wallin, 53 AD3d 663 (2d Dept. 2008). Accordingly, it is hereby:
ORDERED, that the Wife shall pay one hundred (100%) percent of the
costs of the child's childcare expenses incurred by the Wife in
furtherance of her employment or vocational training in furtherance of
her employment.[22]
LIFE INSURANCE
DRL § 236(B)(a)(8) provides, inter alia, that:
". . . [i]n any matrimonial action the court may order a
party to purchase, maintain or assign a policy of insurance providing
benefits for . . . child support . . . [t]he court may also order a
party to purchase, maintain or assign a policy of accident insurance or
insurance on the life of either spouse, and to designate in the case of
life insurance, either spouse or children of the marriage, or in the
case of accident insurance, the insured spouse as irrevocable
beneficiaries during a period of time fixed by the court. The obligation
to provide such insurance shall cease upon the termination of the
spouse's duty to provide maintenance, child support or a distributive
award . . ."
A life insurance policy should generally be maintained the secure a party's child support obligation. See generally Corless v. Corless, 18 AD3d 493 (2d Dept. 2005); see also Geller v. Geller, 69 AD3d 563 (2d Dept. 2010). The Court notes that the child just attained the age of six (6) years. To this end, it is hereby:
ORDERED, that within thirty (30) days of the date of this Decision
and Order, the Husband shall obtain and/or maintain a policy of life
insurance on his life with a death benefit in the sum of $300,000.00,[23] naming the Wife as beneficiary to secure his pro-rata share of the total child support obligation; and it is further
ORDERED, that upon the Husband obtaining the requisite life insurance set forth in the preceding decretal paragraph (see supra)
set forth in this Decision and Order, the Wife party is permitted to
submit a Qualified Life Insurance Order to the Court for signature.
COUNSEL FEES
A review of the Wife's billing statements/statements for services
rendered with her counsel reflect that she has incurred total counsel
fees of $72,002.02 with her counsel, with a balance due to her counsel
as of the July 30, 2025 invoice of $17,156.40. DRL § 237(a), the
statutory predicate for an award of counsel fees, provides as follows:
(a) In any action or proceeding brought . . . for a divorce .
. . the court may direct either spouse . . . to pay counsel fees and
fees and expenses of experts directly to the attorney of the other
spouse to enable the other party to carry on or defend the action or
proceeding as, in the court's discretion, justice requires, having
regard to the circumstances of the case and of the respective parties.
There shall be a rebuttable presumption that counsel fees shall be
awarded to the less monied spouse. In exercising the court's discretion,
the court shall seek to assure that each party shall be adequately
represented and that where fees and expenses are to be awarded, they
shall be awarded on a timely basis, pendente lite, so as to enable
adequate representation from the commencement of the proceeding.
An award of counsel fees pursuant to Domestic Relations Law § 237(a)
is a matter within the sound discretion of the trial court, and the
issue is controlled by the equities and circumstances of each particular
case. Fugazy v. Fugazy, 210 AD3d 653 (2d Dept. 2022). This is an application for a final award of counsel fees at the end of the parties trial. In Duval v. Duval, the Second Department explained:
In determining whether to award final counsel fees at the
end of trial, a more detailed inquiry is warranted and the court must
review the financial circumstances of both parties together with all the
other circumstances of the case, which may include the relative merit
of the parties' positions. The court may also consider whether either
party has engaged in conduct or taken positions resulting in a delay of
the proceedings or unnecessary litigation. At that point, the court is
in the best position to determine whether counsel fees should be charged
to the moneyed spouse, or charged to the less moneyed spouse as an
offset against the equitable distribution award ultimately received, or
divided between the parties.
Duval v. Duval, 144 AD3d 739 (2d Dept. 2016) (internal citations omitted); see also and see generally Klestadt v. Klestadt, 182 AD3d 592 (2d Dept. 2020).
Among many factors, the court must consider the respective financial
positions of the parties in determining whether an award is appropriate
(see Borakove v. Borakove, 116 AD2d 683 (2d Dept. 1986)), the financial need of the party and the parties' disparate incomes (see Hausman v. Hausman, 162 AD2d 590 (2d Dept. 1990)),
the time expended by counsel, the hourly rate for such services in the
legal marketplace, the nature of the legal services rendered, the issues
before the court and the professional standing of counsel. See DeCabrera v. Cabrera-Rosete, 70 NY2d 879 (1987).
Here, the Court finds that an award of counsel fees to the Wife is
proper, but in the amount of $15,000.00. In this respect, the Court has
considered, in arriving at the sum herein, that the Wife is the monied
spouse, earning approximately $106,000 per year as to the Husband's
$0.00 income. Additionally, the Court has considered the overall
equitable distribution of the parties' assets, and notes that it has
awarded the Wife one hundred (100%) percent of the marital assets
herein. Those two factors are major factors that the Court has
considered. However, the Court notes that the Husband unnecessarily
prolonged this litigation by refusing to settle the issues of custody
and parenting time despite his incarcerated status and despite the
issuance of the Order of Protection in favor of the child until 2039.
Additionally, the Court notes that the Husband prolonged this matter by
refusing to produce a Statement of Net Worth and by refusing to produce
mandatory and compulsory financial disclosure. The Court also notes that
the Husband's conduct resulted in the Wife having to make an
application for discovery sanctions. That conduct, as described herein, supra, cannot go unnoticed. The Wife's status as the "monied spouse" is not
a bar to awarding her legal fees at the conclusion of this matter. The
Court has reviewed the retainer agreement of the Wife's counsel and
finds the fees charged to be reasonable, and the Court has reviewed the
invoices of the Wife's counsel and finds that most of the fees charged
therein were reasonable. Accordingly, it is hereby:
ORDERED, that the Wife's request for reimbursement of counsel fees be
and the same is hereby GRANTED TO THE EXTENT that the Husband shall
pay, directly to the Wife's counsel, Capetola & Divins, P.C., the
sum of $15,000.00, within thirty (30) days of the service of the
Judgment of Divorce with Notice of Entry; entry of the Judgment of
Divorce; and it is further
ORDERED, that upon the failure of Defendant to pay the Plaintiff's
counsel as set forth herein above, the Plaintiff's attorneys may file an
Affidavit of Non-Compliance with the Clerk of the County, who shall
enter a judgment, with statutory interest thereon as of the date of this
Decision and Order, in favor of CAPETOLA & DIVINS, P.C., attorneys
for the Plaintiff, as against the Defendant, T.S., without further
proceedings.
MISCELLANEOUS
An Order directing the submission of the Findings of Fact,
Conclusions of Law and Judgment of Divorce, consistent with this
Decision and Order, shall be issued separately and simultaneously
herewith, and Judgment is to be settled on notice in accordance with 22
NYCRR § 202.48.
* * *
Any other relief requested not specifically addressed herewith is hereby DENIED.
This constitutes the Decision and Order of this Court.
[1]
While the Court, in this Decision and Order, will refer to the parties
as "Husband" and "Wife", where appropriate, for the purposes of
identifying the parties' exhibits proffered at trial, the Court will
refer to the "Wife" as the "Plaintiff" and the "Husband" as the
"Defendant".
[2]
". . . [b]y enacting Judiciary Law § 2-b(3), the Legislature has
explicitly authorized the courts' use of innovative procedures . . .
courts may fashion necessary procedures consistent with constitutional,
statutory, and decisional law . . ." Perez v. 1857 Walton Realty Corp., 71 Misc 3d 1203(A) (Supreme Court Bronx County 2021).
[3] See Plaintiff's Exhibit "5", in evidence.
[4] The World Health Organization opines that STI's have a profound impact on sexual and reproductive health worldwide. World Health Organization,
retrieved from
https://www.who.int/news-room/fact-sheets/detail/sexually-transmitted-infections-(stis).
Some STI's are curable. There are four types of viral STI's, including
hepatitis B, herpes simplex virus (HSV), HIV and human papillomavirus
(HPV).
[5] See Plaintiff's Exhibit "3", in evidence.
[6] See Plaintiff's Exhibit "2", in evidence.
[7] See Plaintiff's Exhibit "4", in evidence.
[8] See Plaintiff's Exhibit "6", in evidence.
[9] See Plaintiff's Exhibit "7", in evidence.
[10] See Plaintiff's Exhibit "7", in evidence.
[11] The Husband failed to submit a Statement of Net Worth in this action.
[12] See Plaintiff's Exhibit "5", in evidence.
[13] $106,203.00 [gross wages] — $6,584.59 [FICA Social Security taxes] — $1,539.94 [FICA Medicare wages] = $98,078.48.
[14]
Inasmuch as the child resides with the Wife, and inasmuch as the Wife
is the payor spouse under the statute, the Court utilized this formula.
[15] The Court nonetheless considered the issue of maintenance on the merits.
[16]
The Court simply cannot impute any income to the Husband at this time.
While the Husband is incarcerated because of his own conduct, the Court
cannot ignore the simple fact that the Husband is incarcerated and
unable to earn income. The Court therefore has no basis in this Record
to impute income to the Husband at this time, as there is no record
support for it.
[17]
To address the argument by the Husband that he is currently unable to
work due to his incarceration, the Court does not find that same is a
bar to ordering child support. Indeed, an award of child support is
retroactive to application therefor. The Husband's incarcerated status
notwithstanding, he has an obligation to support the child he brought
into this world. The Husband is incarcerated because of his own conduct.
To not award any child support, or the statutory minimum, would
ostensibly result in punishment of this child. Upon the Husband's
release from incarceration, and upon his attainment of employment, he
can start making payments towards the arrears herein.
[18] See Plaintiff's Exhibit "1", in evidence.
[19]
Arrived at and calculated as follows: $1,106.66 for April, 2022
[pro-rated for twenty (20) days in April, 2022]; 1,660.00 × 30 [days in
April] = $55.33 per day × 20 [days from the date of Summons to end of
April, 2022] + $13,280.00 for the remainder of 2022 [$1,660.00 × 8
months = $13,280.00] + $19,920.00 for year 2023 [$1,660.00 × 12 months =
$19,920.00] + $19,920.00 for year 2024 [$1,660.00 × 12 months =
$19,920.000] + $18,260.00 for year 2025 [$1,660.00 × 11 months (January —
November] = $72,486.66.
[20]
Inasmuch as the Court directs the Wife to pay one hundred (100%)
percent of the health insurance premiums of the child, an award of
retroactivity is not required.
[21] See footnote "19".
[22] See footnote "19".
[23] $1,660.00 (Husband's basic child support obligation) × 180 (months remaining until the child's emancipation) = $298,800.00."
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