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G.T. v. A.T.

Supreme Court, Suffolk County

February 10, 2014

G.T., Plaintiff,
v.
A.T., Defendant.

Plaintiff's Attorney STEVEN J. HOMAYOON, ESQ. Defendant Pro Se

H. Patrick Leis III, J.

This matrimonial action was commenced on November 7, 2011. The parties first appeared in court on January 13, 2012. The case was tried on June 25, 26, 27, 2013, July 2, 8, 15, 16, 19, 24, 29, 2013, and September 3, 13, 2013. The defendant appeared pro se during the entire proceeding. The plaintiff's Post Trial Memorandum was received on September 30, 2013 and the defendant's Post Trial Memorandum, although not properly submitted, was faxed to this court on October 3, 2013. [1]

This case highlights the difficulties that arise when one party uses their self-represented status as both a sword and a shield in an attempt to gain undue advantage and behaves in a manner that the court would never tolerate from an attorney. The manner in which the defendant presented his minimal evidence, fueled by his own emotional agenda, lacked direction, reason and oftentimes was totally devoid of probative value. As a result of the defendant's lack of clarity in his presentation of evidence and the rambling nature of his post trial memorandum, the court was required to order numerous days of trial testimony in an effort to search the record for any evidence supporting the defendant's amorphous positions, thereby delaying this decision.

Prior to trial, the parties reached a settlement regarding custody of their son, T., and during the trial the parties reached a settlement regarding child support and equitable distribution of all of their real estate holdings. Based on the plaintiff's credible, sworn testimony that the parties' marriage has irretrievably broken down for a period of at least six months prior to the commencement of this action, the court hereby grants the plaintiff a divorce pursuant to DRL § 170 (7). The court issues this trial decision on the remaining issues of marital debt, personal property and counsel fees.

FACTS

The plaintiff G.T. is 50 years old and the defendant A.T. is 53 years old. The parties were married on December 19, 1987. They have two children; P. who is 21, and T. who is 16. The defendant is an engineer. He has a college degree, a Masters degree, and has completed most of the credits required for a doctorate. The plaintiff has a doctorate in Biochemistry and Molecular Physics. When the parties married, the plaintiff earned approximately $14, 000 per year and the defendant earned $23, 000 per year. In 1990 they moved from Virginia to New York. The defendant was employed by Brookhaven National Laboratories, earning $50, 000 per year. The plaintiff worked at Cold Spring Harbor Laboratories making $23, 000 per year. When the plaintiff lost her job in 2005, she was earning $73, 000 annually. She then went back to school and obtained a degree in computer programming. This allowed her to gain employment, combining her previous areas of expertise with her newly acquired knowledge of computers and software. She presently earns $45, 986 per year (see plaintiff's exhibit 14). When the defendant left his job, which also occurred in 2005, he was earning $90, 000 annually. Unlike the plaintiff, he has not obtained employment since leaving his job, choosing instead to manage the parties' real estate holdings.

Although the defendant first testified that he lost his job in 2005, he admitted during cross examination that he could have remained employed if he had so desired. The defendant has not shown any proof that he ever tried to find another position after leaving his job in 2005. The plaintiff testified that she asked the defendant to find employment but he refused, telling her that he felt it was beneath him to work for anyone. It was the defendant's belief that by constantly refinancing existing properties to purchase additional ones, he would make the parties rich. Instead, said refinancing put the parties in debt and caused expenses to exceed income. While the plaintiff signed the requisite financial documents allowing the defendant to refinance existing properties to purchase new ones, she stated that she did so reluctantly and under coercive pressure from the defendant. Throughout the marriage the plaintiff continually told the defendant that she wanted the real estate holdings to be an adjunct to their full-time employment. In fact, the plaintiff stated that the defendant's continued refusal to find employment was a significant factor contributing to the deterioration of the marriage. The plaintiff felt that the real estate "empire" that the defendant was attempting to build put the family in a precarious financial position and was unwise.

The plaintiff's health is good. According to the defendant, in 2005 he was diagnosed with Type 2 diabetes and he takes medication for this condition. In addition, he states that he takes high blood pressure medication. There is no evidence that either of these conditions effects his ability to work. In fact, he apparently is able to travel extensively to manage the parties' real estate holdings as well as his separate Pittsburgh property. [2]

Pursuant to the parties' stipulation concerning the distribution of their real estate holdings, each party is to have certain enumerated properties deeded to him or her exclusively with a hold-harmless clause protecting the other party who is no longer on the deed, from any liabilities for the other's properties. [3] Therefore, pursuant to the parties equitable distribution settlement agreement, all debts currently owed on the parties' respective properties are the responsibility of the owning party. [4] Furthermore, the parties have resolved the issue of child support [5] for T. by allowing the defendant to prepay his support obligations for T. who is 16 years old, by giving the plaintiff the marital home which has an equity of approximately $90, 000 to $120, 000.

DEBTS

The testimony established that at the time of trial there was a Discover Card in the name of the plaintiff, and a Visa and Master Card in the defendant's name. [6] The parties have accrued debt on these cards during the pendency of this case. [7] As no evidence was submitted that such debt was incurred for the benefit of the other spouse or incurred with the other spouse's permission, and as it accrued on each party's individual credit card(s) after commencement of this action, said debt is the sole responsibility of the party whose name appears on the credit card account. For example, it appears from the testimony and exhibits that the defendant's Master Card had a balance of $14, 500 at the time of trial and he had a balance of $19, 500 on his Visa card at the time of trial . [8] It is unknown what, if any, balance was on each of those cards on the date of commencement and how any such balance was paid as there was no evidence submitted by the defendant on these issues. There is testimony, however, that the defendant incurred these credit card debts that existed at the time of trial, after the commencement of the case by paying for his own living expenses after he moved out of the marital residence. [9] Also, these debts were substantially inflated by the defendant's choice to stay in a hotel for several months, at a cost of $60 per day, rather than to reside in one of the parties' vacant rental properties for free. Without proof of the debts owed on those two cards prior to commencement and how the balances, if any, were paid (either with joint or individual funds), the Court is constrained to find that the credit card balances that existed at the time of trial accrued after the case was commenced and are, accordingly, the sole responsibility of the defendant to pay.

The plaintiff testified and submitted credit card billing statements to establish that from the commencement of this case until trial she incurred $36, 643.38 in charges on her Discover Card. That amount is solely the plaintiff's responsibility to pay. [10] The plaintiff, however, admitted that she paid $2, 500 of her personal post-commencement credit card debt from the parties' joint business account. Accordingly, the defendant is due a credit in the amount of $1, 250 representing his share of the money taken from the joint account by the plaintiff to pay for her separate debt. There is also credible testimony that the defendant paid $14, 000 of his post-commencement personal credit card expenses from the joint business account. Accordingly, the plaintiff is due a credit in the amount of $7, 000 representing her share of the money taken from the joint account by the defendant to pay for his separate debt. After subtracting the defendant's credit of $1, 250 from the plaintiff's credit of $7, 000, the court finds that the plaintiff is due a credit from the defendant in the amount of $5, 750.

Regarding the retirement account loans, the credible evidence established that the parties took out loans from their individual retirement accounts prior to the inception of this case; the plaintiff has two pre-commencement retirement loans outstanding and the defendant has one pre-commencement retirement loan outstanding. The plaintiff owes approximately $3, 980 on one loan as of the time of trial and $2, 305 on another loan. The defendant owes approximately $32, 800 on his loan as of the time of trial. The court finds that as these liabilities were incurred prior to the commencement of this action and during the marriage, the parties are responsible to pay half of the outstanding balance from those loans to each other. Accordingly, the defendant shall owe a credit to the plaintiff equal to half of her retirement loan debt that she is responsible to pay, or $3, 980 plus $2, 305, divided by two which is $3, 142.50. And the plaintiff shall owe a credit to the defendant equal to half of his retirement loan debt that he is responsible to pay, or $32, 800 divided by two which is $16, 400. By subtracting the credit due to the plaintiff in the amount of $3, 142.50 from the credit due to the defendant in the amount of $16, 400, the court finds that the plaintiff owes a credit to the defendant in the ...


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