A GREY DIVORCE WITH NO SPOUSAL SUPPORT

In this case, the parties are senior citizens, estranged for 27 years after only a few months of living together.

Ruby W. v. Cleveland W., Date filed: 2023-04-28, Court: Family Court, Nassau, Judge: Support Magistrate Sondra Mendelson-Toscano, Case Number: F-08836-22:

"A married person is chargeable with his or her spouse’s support. See N.Y. FAM. CT. ACT §§412, 442 (McKinney’s 2023); see also Young v. Young, 186 A.D.3d 719, 721 (2d Dep’t 2020); Bibbes-Turner v. Bibbes, 174 A.D.3d 1506, 1507 (4th Dep’t 2019). Where married parties have not entered into an agreement of their own, a spouse may petition the family court for a spousal support award. See N.Y. FAM. CT. ACT §§412, 422(a) (McKinney’s 2023). A hearing must be held after which there must be a finding that a husband or wife is possessed of sufficient means, or able to earn such means, justifying spousal support. See N.Y. FAM. CT. ACT §442 (McKinney’s 2023); Young, 186 A.D.3d at 721.

Family Court Act (hereinafter “FCA”) §412 contains a formula for computing spousal support based upon the parties’ combined income.1 See N.Y. FAM. CT. ACT §§412(3), (4), (5) (McKinney’s 2023). A support magistrate may depart from the guidelines amount where it is found that such sum is unjust or inappropriate. See N.Y. FAM. CT. ACT §412(6)(b) (McKinney’s 2023). In its determination, a support magistrate must contemplate the factors delineated within FCA §412(6)(a). See N.Y. FAM. CT. ACT §§412(6)(a). A support magistrate must issue a written order with, or set forth on the record, the factors it considered and the reasons for its departure from the guidelines amount. See N.Y. FAM. CT. ACT §412(6)(b) (McKinney’s 2023).

Spousal support awards are non-durational. See N.Y. FAM. CT. ACT §§412, 442 (McKinney’s 2023); see also Levy v. Levy, 65 A.D.3d 1295, 1296 (2d Dep’t 2009) (unlike maintenance in context of matrimonial action, Family Court Act does not provide durational limit on spousal support). Such awards terminate by operation of law upon the parties’ divorce or the death of either party, or by the parties’ written or oral agreement in open court. See N.Y. FAM. CT. ACT §412(10) (McKinney’s 2023).

The evidence showed that Mrs. W is 70 years old and Mr. W is 66 years old. The proof established that the parties were married on January 26, 1996 and have one emancipated child together. The evidence showed that the parties’ nuptials and cohabitation occurred almost three decades ago and was short-lived with little or no communication thereafter until the instant petition’s filing.

Both parties’ earning capacities and financial landscapes appear bleak with no relief in sight. The proof established that Mrs. W lives on what she characterized as a “fixed income.” The evidence showed that Mr. W has a part-time job working in the shelter system, earning $18.26 an hour. The proof established that Mr. W will receive Social Security Disability benefits in the amount of $466.00 monthly, commencing April, 2023. Mrs. W failed to establish that Mr. W’s ability to earn is anything more than what Mr. W has shown it to be.

The evidence showed that Mr. W was incarcerated for almost a decade. Moreover, the proof established that the petition’s filing was a total shock to Mr. W, who testified that he has been trying to divorce Mrs. W for years and was frustrated by her lack of cooperation. Thus, the Court finds that Mr. W has not purposefully underemployed himself or hidden income or assets in an effort to thwart the proceedings. See e.g. Justin v. Justin, 120 A.D.3d 1417, 1418 (2d Dep’t 2014) (finding court properly declined to impute income where father’s choice not to re-enlist in Army not undertaken to reduce or avoid child support obligation); Cordero v. Olivera, 40 A.D.3d 852, 853 (2d Dep’t 2007) (upholding trial court’s credibility determination that parent had not intentionally underemployed herself).

Taking into consideration the totality of the evidence presented at trial and applying it to the law, the Court finds that Mr. W is not possessed of sufficient means, or able to earn such means, to justify an award of spousal support to his wife of 27 ½ years who has been estranged from him for the last 27 years. Accordingly, the Court declines to award spousal support to Mrs. W.2 See e.g. Hutchinson v. Hutchinson, 188 A.D.3d 1208, 1208 (2d Dep’t 2020) (“the court’s spousal support award was appropriate based upon a consideration of the parties’ respective circumstances at the time of their presentation to the Family Court”); Bibbes-Turner v. Bibbes, 174 A.D.3d 1506, 1507 (4th Dep’t 2019) (upholding deviation from presumptive amount where husband was incarcerated during marriage, parties lived apart for 13 years preceding support proceeding, and had limited contact after his release); Costigan v. Renner, 76 A.D.3d 1039, 1040 (2d Dep’t 2010) (affirming supreme court’s denial of spousal support where court took statutory factors into account, including parties’ less than three years cohabitation); Zaky v. Andil, 81 A.D.3d 842, 843 (2d Dep’t 2011) (upholding support magistrate’s decision based upon particular circumstances of case).

Assuming arguendo that the Court found otherwise, in light of the parties’ ages and health,3 present and future earning capacity, short duration of their cohabitation prior to separation, and remote proximity of the parties’ pre-support proceedings household, the Court would likewise decline to order Mr. W to pay spousal support to Mrs. W."