January 3, 2014
Lawrence J. Dachille, Plaintiff,
Mary T. Dachille, Defendant.
Kenneth R. Fisher, J.
Before the court is plaintiff's Notice of Motion seeking an order: (1) awarding temporary maintenance; (2) awarding counsel fees; and (3) directing that defendant contribute the sum of $500 per month toward the monthly payment on the note to discharge the parties' Chapter 13 plan. Defendant cross-moves for an order: (1) that defendant bring all delinquent mortgage (principal, interest, taxes, insurance) payments current for the marital residence and pay the mortgage until the closing and transfer of title to the marital residence; (2) granting exclusive use and occupancy of the marital residence; (3) directing that plaintiff reimburse the defendant for the difference in cost between an individual and 2 person medical insurance plan; and (4) directing that the plaintiff pay interim attorneys' fees to the defendant.
The parties were married on July 4, 1981, and have been living apart since June of 2010. There are no unemancipated children of the marriage. Defendant resides at the marital residence at 60 Ramblewood Drive, North Chile, New York, and plaintiff resides with his cousin at 18 Hunts Point, Rochester. Plaintiff contends that he paid the mortgage at the marital residence until June 2013 when his attorney advised him to stop paying. Affidavit of Lawrence J. Dachille, November 15, 2013, ("Plaintiff's Aff."), ¶41. Plaintiff alternately asserts that he stopped paying because defendant's boyfriend "barred" him from the marital residence (Plaintiff's Aff. ¶16), and because he could no longer afford pay the mortgage payments, $1, 534, and the Chapter 13 plan payments of $2, 020 per month. Plaintiff's Aff., ¶23.  Defendant contends that, between 2008 and early 2012, he made 35 plan payments without contribution from defendant. Plaintiff's counsel avers that he instructed his client to cease making mortgage payments. Affirmation of Thomas A. Corletta, Esq., dated November 15, 2013, ¶15. Plaintiff and counsel reason that the home is underwater because $146, 335 is owed on the mortgage and the marital residence is assessed at $138, 900. Plaintiff asserts that the marital residence is in disrepair.
The parties entered Chapter 13 bankruptcy in 2008, and the Chapter 13 plan was confirmed on November 2, 2009. The plan called for the parties to pay $121, 000 in 60 payments of $2, 020. On August 29, 2012, plaintiff borrowed $53, 262.72 from his cousin to payoff the balance of their bankruptcy plan. The bankruptcy estate closed August 2, 2013. See Plaintiff's Affidavit, Ex. M.
Defendant asserts that plaintiff handled all the finances for 29 years of their marriage and refused to keep her informed as to their financial condition. She asserts she was horrified to discover they were $120, 000 in debt in 2008 and were forced to file bankruptcy. Defendant asserts that, due to marital discord in 2010, plaintiff declared that if defendant did not move out of the marital residence, then he would. Defendant asserts that the home is in no worse shape than when plaintiff vacated in 2010.
Defendant avers that she has not consulted an appraiser or Realtor, but she believes their home could be sold for more than the assessed value, at least enough to break even. She asserts that plaintiff's decision to stop paying the mortgage and let the house go to foreclosure was made without consulting her and she fears the damage to her credit. Defendant asks that plaintiff consent to list the house and that the court so order this on consent of the parties.
Defendant contends that before plaintiff moved out, they resided in the marital residence with two of their adult children and their families. She asserts that they agreed he would pay the mortgage and she would pay the groceries and utilities. Further, she asserts that the parties jointly contributed to the bankruptcy payments together, and that the payments came from a joint account into which they both deposited their income, until June 2010. She asserts that after they separated, plaintiff agreed to make the payments as he lived rent free with his cousin. Defendant asserts that plaintiff earns $5, 500 per month in net income and that she earns only $3, 200 in net income.
She asserts that the loan from the cousin was without her knowledge. She notes that plaintiff signed the note August 29, 2012, and that she did not sign until February 22, 2013, when she learned of the existence of the loan. She acknowledges that this loan, to the extent funds were used to discharge their bankruptcy, is marital debt.
Plaintiff here seeks maintenance from defendant. Plaintiff receives $2, 004 per month ($24, 048 annually) in social security disability benefits, $2, 973 per month in veteran's disability benefits ($35, 676 annually), and a Postal Workers pension of $436.18 monthly ($5, 234 annually). That is $5, 413.18 per month or $64, 958.16 per year. Defendant earned $64, 110 in 2012 from her job as supervisor with the United States Postal Service, together with a modest amount of deferred income.
Plaintiff contends that the court cannot consider his Veteran's disability benefits as income to him. The court does not agree. Section 236(B)(5-a)(c) of the Domestic Relations Law provides the formula to calculate the presumptively correct temporary maintenance award amount. "Income" for purposes of the formula means income as defined in the Child Support Standards Act, codified at §240 of the Domestic Relations Law. That statute provides that disability benefits, veterans benefits and pension benefits must be included in gross income. DRL §240[1-b](b)(5)(iii). Accordingly, plaintiff's income would be $64, 958.16 per year. Defendant's income, minus FICA of $4, 904 would be $59, 206.
There is no need here to perform any calculations. The temporary maintenance guidelines, by design, "only result in an award when there is an income gap between the two parties such that the less-monied spouse's income is less than two thirds of the more monied spouse's income." Assembly Introducer Mem. in Support, Bill Jacket, L. 2010, ch. 371, at 14.
The court does not find that 10 U.S.C. §1408 or the authority cited in Alvarado v. Alvarado, 38 Misc.3d 1211(A), 2013 WL 196521, 2013 NY Slip Op. 50077 (Sup. Ct. Richmond Co. January 15, 2013), relied upon by plaintiff, prevents consideration of veterans disability benefits for the purposes of determining plaintiff's income when considering his application to receive temporary maintenance from defendant. The Federal Uniformed Services Former Spouses' Protection Act, 10 U.S.C. §1408, displaces the total preemption ruling concerning federal military retirement benefits in McCarty v. McCarty, 453 U.S. 210 (1981). Under USFSPA, Congress authorized state courts to distribute, with certain limitations not relevant here, disposable retired pay in a divorce proceeding. 10 U.S.C. §1408(a)(2)(C); §1408(a)(4). Thereafter, in Mansell v. Mansell, 490 U.S. 581 (1989), the Supreme Court further limited the authority of a state court by prohibiting distribution of disposable retired pay which constitutes that portion of retired pay that has been waived under 38 U.S.C. §5305 to receive veterans disability benefits. Id., 490 U.S. at 594-95 (USFSPA "does not grant to state courts the power to treat as property divisible upon divorce military retirement pay that has been waived to receive veteran's disability benefits").
It should be underscored at this point that neither Mansell nor 10 U.S.C. §1408 have anything to say about the proper calculation of income for purposes of temporary or permanent maintenance, especially as it concerns the putative payee or recipient of maintenance. The federal scheme purports only to concern the division of future benefits upon equitable distribution, or an order directing that alimony or maintenance be paid out of veteran's disability payments. Rather, the statute addresses whether any final divorce decree orders payment of a portion of either disposable military retirement pay, which is permissible, or veterans disability payments that result from a waiver, which under Mansell is not permissible.  It would be a perverse application of the statute and Mansell to hold that the tax free disability benefit, Mansell v. Mansell, 490 U.S. at 583-84 ("military retirees who waive their retirement pay in favor of disability benefits increase their after tax income"), is exempt from consideration when the question is whether the veteran should receive alimony or maintenance from the non-military former spouse. The USFSPA was, after all, designed to displace the total federal preemption imposed by McCarty in favor of protecting the spouse or former spouse of a military retiree.
The state cases upon which plaintiff relies do not require a different result. First, Newman v. Newman, 248 A.D.2d 990 (4th Dept. 1998) declares VA disability benefits as "separate property, " and thus is an equitable distribution case, as is Hoskins v. Skojec, 265 A.D.2d 706, 707 n.1 (3d Dept. 1999)(USFSPA "authorizes state courts to allocate as marital or community property a veterans disposable retired pay... [defined by] 10 U.S.C. §1408(a)(4)(B)[, ]... [but] preempts the authority of state courts to consider veterans' disability benefits as property divisible upon termination of marriage")(emphasis supplied).
The fly in the ointment comes from Carl v. Carl, 58 A.D.3d 1036 (3d Dept. 2009) and the cited Alvarado case, which relied on Carl for the maintenance observation. The word "observation" is used because in neither case was the reference to maintenance, as it juxtaposed with veterans disability benefits resulting from the above described waiver, necessary to the decision. In Carl, the court held that income from a private disability insurance policy, conceded to be separate property, must be considered in the maintenance calculus. Id., 58 A.D.3d at 1037 ("the fact that a portion of that income is derived from an asset determined to be separate property not subject to equitable distribution does not render that income immune from consideration in calculating a party's maintenance obligation"). In a footnote, however, the court stated that veterans disability payments "would otherwise be precluded from consideration with respect to maintenance" (citing 10 U.S.C. §1408 and Hoskins v. Skojec, supra). Inasmuch as the court was not dealing with a veteran, or a veteran's retirement or disability payments, the observation was entirely unnecessary to the decision and therefore dictum. Indeed, as shown above, such a categorical "preclus[ion] from consideration with respect to maintenance" cannot be supported by reference to the USFSPA or Hoskins.
Second, in the Alvarado case, the husband moved for an order declaring that, inter alia, his veterans disability payments are exempt from consideration for purposes of maintenance. Relying on Carl, the court agreed. Thus considered, Alvarado stands on no better authority than Carl itself for the proposition advanced. In addition, the procedural posture the court faced in Alvarado compromised its persuasive force. No application for temporary maintenance was made in that case, and the court acknowledged that the issue of maintenance would be reserved to trial. Nevertheless, the court converted the motion to one "in limine to limit the issues to be adjudicated at trial" and determined it as set forth above. Because such a motion in limine had the effect of limiting the issues and facts to be tried, it was, as the Appellate Divisions have consistently found, a poor substitute for a motion for summary judgment. O'Donnell v. Ferguson, 100 A.D.3d 1534, 1535-36 (4th Dept. 2012), and see esp., Scalp of Blade, Inc. V. Advest, Inc., 309 A.D.2d 219, 224 (4th Dept. 2003). Therefore, the court views the Alvarado "precedent" as of limited probative value. 
Even if the court did not consider such income to plaintiff for purposes of the temporary guideline calculation, it would find any resulting guideline award to plaintiff unjust and inappropriate. Section 236(B)(5-a)(e)(1) provides that "[t]he court shall order the presumptive award of temporary maintenance in accordance with paragraphs c and d of this subdivision, unless the court finds that the presumptive award is unjust or inappropriate and adjusts the presumptive award based upon consideration of the" factors at DRL §236(B)(5-a)(e)(1). Notably, plaintiff has maintained a pre-divorce separate household for more than three years prior to the commencement of this action. DRL §236(B)(5-a)(e)(1)(ix). Plaintiff further has not presented any argument that he is in need of support or that he is now living below the marital standard of living. DRL §236(B)(5-a)(e)(1)(iii). Plaintiff's application fails to address how he could afford to pay the mortgage and make the Chapter 13 payments from June 2010 through August 2012, $3, 554 ($1, 534 $2, 020), and then beginning August 29, 2012, only $2, 534 (the mortgage plus the $1000 per month note to the cousin, replacing the Chapter 13 plan), and beginning June of 2010, just the note at $1000, but now requires temporary spousal support. Rather, according to plaintiff, "[t]his motion has been necessitated by Defendant's unwarranted threats of Temporary Maintenance Motion through her attorney, which are groundless and borderline frivolous." Plaintiff's Affidavit, ¶ 4. By "unwarranted threats" plaintiff refers to a letter from defendant's counsel which requests that defendant resume paying the mortgage on the marital residence as he did until June 2013. The letter provides that a settlement offer is forthcoming but that the house should be listed for sale and that plaintiff should resume making the mortgage payments as he did from June 2010 through June 2013. If there could be no agreement to list the house or to resume the mortgage payments, a motion would be brought. The court does not consider this an unwarranted threat as it merely sought to restore the status quo.
Plaintiff's application for temporary maintenance is denied.Further, the court denies plaintiff's application that defendant contribute $500 per month toward the note to the cousin. The debt of the parties shall be distributed at the time of judgment. The court has no power to distribute this debt prior to final judgment without agreement of the parties.
Similarly, the court orders plaintiff to bring current and pay the mortgage on the marital residence as both parties intend to sell the residence. The court will apportion any proceeds or debt considering all the facts and circumstances as presented here and developed at trial.
Exclusive Use and Residency
"Courts are statutorily empowered to grant one spouse temporary exclusive use and occupancy of the marital residence during the pendency of divorce proceedings. See Domestic Relations Law §234. "Exclusive occupancy of a marital residence by one party, pendente lite, is warranted only: (1) when needed to protect the safety of persons or property; or (2) when the nonmovant spouse has voluntarily established an alternative residence and that spouse's return to the marital residence would cause domestic strife. Kenner v. Kenner, 13 A.D.3d 52, 53 (1st Dept. 2004)(citations omitted).
Although it appears plaintiff vacated the marital residence voluntarily, there are insufficient allegations that his return would engender strife. In fact, it appears that plaintiff has no intention of returning to the marital residence. An award of exclusive occupancy must be based upon incidents that exceed petty harassments such as the hostility and contempt admittedly demonstrated herein that are routinely part and parcel of an action for divorce." Estis v. Estis, 2002 NY Misc. LEXIS 2028 (Sup. Ct., Nassau Co., 2002).
Finally, there are no allegations here that plaintiff is a danger to defendant. Exclusive use and occupancy is denied.
As to the parties' applications for interim counsel fees, DRL §237(a) provides a presumption that the moneyed spouse pay interim counsel fees to ensure that each side is adequately represented. As the statute provides, "[a]n award of an attorney's fee... 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." Grant v. Grant, 71 A.D.3d 634, 634-635 (2d Dept. 2010) (quoting Gruppuso v. Caridi, 66 A.D.3d 838, 839[2d Dept 2009], quoting Morrissey v. Morrissey, 259 A.D.2d 472, 473 [2d Dept 1999]). In addition, that "[a]n award of interim counsel fees is designed to create parity in divorce litigation by preventing a monied spouse from wearing down a nonmonied spouse on the basis of sheer financial strength". Rosenbaum v. Rosenbaum, 55 A.D.3d 713, 714 (2d Dept. 2008). There is substantial parity here between the parties' incomes and the court does not perceive that either party has an advantage over the other "on the basis of sheer financial strength."
The cross-motion for an order directing that plaintiff reimburse the defendant for the difference in cost between an individual and two person medical insurance plan is granted using the 2014 figures handed up to court at oral argument. Submit order accordingly.