THE SPOUSE WITH A SECRET FAMILY

G.M. v M.M., 2015 NY Slip Op 25422 , Decided on December 17, 2015, Supreme Court, Westchester County:

"It is well established that equitable distribution of marital property does not necessarily mean equal distribution. Duffy v. Duffy, 84 AD3d 1151 [2d Dept 2011]; Michaelessi v. Michaelessi, 59 AD3d 688 [2d Dept 2009]. The equitable distribution must be based on the circumstances of the particular case and the consideration of a number of statutory factors. DRL § 236[B][5][d]. The court has substantial discretion in fashioning an award of equitable distribution. Stated another way, "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, 420 [2009].

In determining an equitable disposition of property the court must consider, inter alia, the wasteful dissipation of assets by either party. DRL 236[B][5][d][12]. Renck v. Renck, 131 AD3d 1146 [2d Dept 2015]. Further, it has been repeatedly held that economic misconduct may properly be considered by the trial court. Contino v. Contino, 140 AD2d 662 [2d Dept 1988]; DiBella v. DiBella, 140 AD2d 292 [2d Dept 1988]; Langdon v. Langdon, 138 AD2d 358 [2d Dept 1988]; Mahon v. Mahon, 129 AD2d 684 [2d Dept 1987]. The courts have long recognized that economic fault, which consists of dissipation or secreting of assets, or other conduct which unfairly prevents the court from making an equitable distribution of marital property, has generally been considered relevant to the distribution. Owens v. Owens, 107 AD3d 1171 [3d Dept 2013]; Blickstein v. Blickstein, 99 AD2d 287 [2d Dept 1984].

A spouse who alleges that the other engaged in waste and dissipation of marital assets bears the burden of establishing that conduct by a preponderance of the evidence. Heymann v. Heymann, 102 AD3d 832, 834 [2d Dept 2013]; Epstein v. Messner, 73 AD3d 843, 846 [2d Dept 2010]; Raynor v. Raynor, 68 AD3d 835, 838 [2d Dept 2009].

Here, plaintiff has met her burden of proving, by a preponderance of the evidence, that the defendant committed wasteful dissipation of marital assets with regard to his financial support of a second family, and this constituted financial misconduct as related to marital assets. There can be no dispute that income received by a spouse during the marriage is marital property. DRL, § 236[B][1][c]. In fact, defendant concedes that marital funds were used to support his second family. Plaintiff introduced into evidence examples of defendant's diversions of marital income, from the parties' joint checking account, for A.S's rent, cable television bill, and other expenses. Although not easily quantified, the court believes that defendant's conduct in dissipating marital funds for so many years during this long-term marriage justifies a finding that there should be a disproportionate distribution of the equity in the marital residence. Kerley v. Kerley, 131 AD3d 1124 [2d Dept 2015]. Clearly, the record supports that defendant's conduct meets the test of Factors 12 and 14 of DRL §236 [B][5]b], respectively: i.e. the wasteful dissipation of marital property [Factor12]; and any other factor which the court shall expressly find to be just and proper, i.e., the so called "wild card" factor [Factor 14]. In this regard, the court finds Factors 12 and 14 are significant factors applicable to the disposition of the marital residence.

The court finds that it is fair and reasonable that plaintiff be awarded sole and exclusive title and possession to the marital residence located in XXX, with her entitlement to one hundred (100%) of the equity. Henery v. Henery, 105 AD3d 903 [2d Dept 2013]. This is justified by the wasteful dissipation of marital assets by defendant, and the unilateral placing of his own interests above those of his rightful dependants.

To implement this distribution, defendant's counsel shall include a provision in the Judgment of Divorce providing for the transfer of title to the marital premises from plaintiff and defendant, to plaintiff alone. This shall be accomplished by defendant executing a bargain and sale deed with covenant against grantor's acts, and the ancillary documents required to be filed together with the recording of the deed. Defendant's attorney shall prepare the transfer documents required to effectuate the conveyance of the marital residence, and defendant shall incur any and all expenses relative to the conveyance and the recording of the deed. In the event defendant fails to sign the deed within 30 days of the Judgment of Divorce being served upon him with notice of entry, the court directs the Westchester County Clerk to sign the deed in his stead upon presentation by plaintiff without further application to the court."