New York Family Law Blog
This action seeking a divorce on the ground of cruel and inhuman treatment, and ancillary relief, was commenced on or about June 10, 2003. By order dated December 23, 2003, both parties’ applications for temporary custody were denied and an injunction was issued prohibiting either party from taking the children out of the United States. The plaintiff (Wife) was granted omnibus pendente lite financial relief pursuant to an order dated February 24, 2004. The parties entered into a written “parenting-time” stipulation on February 8, 2005. The trial of the action commenced on February 1, 2005. On that date, an inquest was conducted on grounds and the plaintiff was granted a judgment of divorce on the ground of constructive abandonment. Entry of the judgment of divorce was stayed pending the determination, after trial, of ancillary issues.
At the conclusion of the trial, the Court reserved decision, pending receipt of post-trial memoranda and summations which were thereafter served and filed by both plaintiff’s counsel, defendant’s counsel and the law guardian.
Background
The parties met in Poland and were married there in a religious ceremony on September 10, 1994, after a civil ceremony conducted in April 1994. There are three infant issue of the marriage, P born December 11, 1996; C born May 25, 1999; and V born September 15, 2000. The plaintiff is 32 and the defendant is 38 years old. The parties and their children are all in good health. The plaintiff earned a bachelor’s degree in economics in 1993 and a master of business administration in international economics in 1994 in Poland, prior to the marriage. She first came to the United States after she married the defendant. The defendant has dual citizenship in Poland and the United States.
At the time of the trial, both parties, their three children, and the defendant’s parents were residing in the marital residence in M. The plaintiff resided on the second floor and the defendant and his parents resided on the first floor. Pursuant to the “parenting-time” stipulation dated February 8, 2005, the plaintiff “parents” the children Tuesday through Saturday and the defendant “parents” them Saturday through Tuesday. The stipulation requires that the children sleep in their upstairs bedroom, establishes detailed bedtimes for the children, affords the grandparents five minutes with the children before bedtime to say goodnight, and prohibits the removal of the children’s personalty from the marital residence.
Testimony
The plaintiff testified that the defendant has been physically and emotionally abusive to her throughout the marriage; he physically assaulted her on their honeymoon cruise, when, as they prepared to have lunch, he insisted that they “have sex” and when she resisted, he struck her in the head and various other parts of her body until “he got what he wanted;” he told her repeatedly throughout the marriage that she was “not good enough for him” and was not capable of performing activities pleasing to him.
According to the plaintiff, she was the primary caretaker of the children throughout the marriage. She cared for the children while defendant was frequently absent from the home on work related travel or vacation; she also cleaned the house and cooked meals; in addition to his absences from home for work related reasons, the defendant often took vacations on his own, including trips in the year 2000 to Aspen Colorado, San Diego California, as well as to Costa Rica for a wedding where he stayed for two or three weeks, and a number of trips to Poland to visit family and to check on a house he owned there before their marriage
The plaintiff asserts that the defendant is undermining her relationship with the children. She testified that starting sometime in 2003, her relationship with her son P had deteriorated as a result of the defendant’s influence.
The defendant denied plaintiff’s allegations that he was a controlling, abusive spouse. The defendant conceded he traveled extensively at times during the marriage.
Custody
Each party seeks sole legal and physical custody of the children. The plaintiff attempted at trial to portray herself as a loving and devoted parent, who has been the primary caretaker, and enjoys a close and constructive relationship with the children. The testimony elicited during the course of the trial did establish that she has historically been the primary care giver for the children. Trial testimony, however, also revealed that she has repeatedly exercised profoundly poor judgment, including shoplifting from a department store at a time when she was accompanied by the children, engaging in a sexual liaison at the marital abode while the children were in the home; leaving the parties’ sons in a bathtub without proper supervision; and meeting with a paramour in the presence of the children. The plaintiff contends, however, that she has been the victim of abuse by the defendant throughout the marriage; that her inappropriate behavior is the result of such abuse; that custody of the children should not be awarded to a perpetrator of domestic violence; and that the defendant has been an absent parent, largely uninvolved in the children’s upbringing.
For any court considering questions of child custody, the standard by which we are guided is to make every effort to determine what is for the best interest of the child, and what will best promote its welfare and happiness.
Here, the defendant has not historically been the children’s primary caretaker. He has, however, historically had child care assistance from his parents, who have resided with the children and cared for them since the children’s births. The defendant has not persuaded the Court that he has customarily subjugated his own needs to the best interests of the children. Further, it is clear that throughout the marriage the defendant has exercised total dominion over the family’s finances and has not viewed or treated the plaintiff as an equal partner in their marriage. Nevertheless, upon all the facts and circumstances set forth herein above, the Court finds that the best interests of the children will be served by awarding legal custody to the defendant.
Accordingly, the defendant is awarded legal custody of the children. The parties shall, however, have equal “parenting-time” with the children as will be addressed, in detail, herein below.
Parenting Time
Once the plaintiff relocates away from the marital residence, she and the defendant shall have equal parenting time with the children. The children shall spend one week with the plaintiff and one week with the defendant unless the parties agree to an alternative shared parenting schedule. In the event the defendant elects to remain in the marital residence, the children shall attend school in that district and the plaintiff shall obtain housing in a proximity to the marital residence such that the children can be transported to and from school generally in less than 20 minutes. In the event the defendant elects to sell the marital residence prior to the plaintiff’s vacatur, each party shall relocate not more than a 20 minute ride from the marital residence, unless the parties agree to both relocate to a location where each shall obtain housing not more than a 20 minute ride from the children’s schools. In the event the defendant sells the marital residence after the plaintiff has vacated the marital home and established a residence in compliance with the terms of this decision and order, he shall relocate not more than a 20 minute ride from the children’s school, unless the parties agree otherwise and upon such agreement both relocate to premises not more than a 20 minute ride from the children’s schools.
Maintenance
Here, the plaintiff was earning $293.00 bi-weekly working part time. In 1999, she was earning $50,000.00 working in the travel industry for American Express. She speaks English and Polish and her resume indicates she has some proficiency in French. She is computer literate and has knowledge of certain computer programs keyed to the travel industry. The Court finds that the plaintiff has the present ability to earn $25,000.00 a year. In view of her work history, her education, and her other skills, the Court finds that she has the ability to resume full time employment earning $50,000.00 a year, with 24 months of the date of this decision and order.
The defendant was earning $90,000.00 in 1999. He earned approximately $ 150,000.00 in 2004. The Court imputes income to the defendant of $125,000.00 a year.
Plaintiff requires maintenance of $2000.00 a month from the time she vacates the marital residence until 24 months from the date of this decision and order. Accordingly, commencing on the date plaintiff vacates the marital residence, the defendant shall pay her maintenance of $2000.00 a month until the death of either party, the plaintiff’s remarriage or the expiration of 24 months from the date of this decision and order whichever occurs soonest.
Child Support
The parties’ enjoyed a comfortable standard of living during the marriage. They resided in an affluent community and traveled extensively during the marriage. The defendant’s ability to earn substantially exceeds the plaintiff’s ability to earn. The defendant’s parents reside in the marital residence, have the use and enjoyment thereof, and are, or should be making some financial contribution to the carrying charges and maintenance of the premises. In view of all the above and upon consideration of the reasonable needs of the children, the Court finds that it would be just and equitable to apply the statutory percentage to total combined parental income.
Accordingly, upon the plaintiff’s vacatur of the marital residence, the defendant shall pay the plaintiff child support of $2256.00 a month. Said award shall be adjusted upon the termination of maintenance to reflect the defendant’s gross imputed income of $125,000.00 and the plaintiff’s gross imputed income, at the time maintenance is scheduled to terminate, of $50,000.00. At the request of either party, payment shall be through the Nassau County Support Collection Unit.
Child Care Expenses
Pursuant to the provisions of DRL 240(1-b)(c)(4), the Court is to consider child care expenses. The parties do not incur child care expenses at the present time. As the defendant resides with his parents, it is not likely he will incur child care expenses in the future. The plaintiff shall also avail herself of any offer by the defendants’ parents to provide child care in the future. In the event the defendant’s parents are unable or unwilling to provide child care, the plaintiff shall pay 20% and the defendant shall pay 80% of child care expenses incurred by both parties to enable them to pursue employment and/or education.
Health Insurance
Defendant is directed to maintain medical, dental and hospital insurance coverage for the issue of the marriage commensurate with the coverage in effect as of December 1, 2004. He shall provide such coverage for the plaintiff until entry of a judgment of divorce. In addition, the defendant shall pay 80% and plaintiff shall pay 20% of all un-reimbursed and/or non-covered necessary medical, dental, orthodontic, optical and prescription expenses incurred on behalf of the issue of the marriage, including medically necessary psychological expenses. The plaintiff shall pay her own uncovered expenses.
Life Insurance
The defendant is directed to maintain life insurance coverage in the sum of $500,000.00, naming the defendant as trustee for the benefit of the children until the youngest is emancipated.
Divorce cases entail tiresome and complicated issues. It will involve much time for preparation testimonies of qualified witness to give opinion to which the court may base a sound judgment.
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