Esther R. Masri, Plaintiff,
Joseph Habib Masri, Defendant.
CATHERINE M. BARTLETT, A.J.S.C.
in this contested matrimonial action was conducted on
September 28, 2016 on the issues of (1) grounds for divorce,
(2) spousal maintenance, and (3) child support. Plaintiff
appeared with her attorney, Eric Ole Thoreson, Esq. Defendant
appeared pro se. The parties were the only witnesses
at trial. Plaintiff in addition produced documentary material
(Exhibits "1" through "23") which was
received in evidence. Based on the credible evidence adduced
at trial, the court finds as follows.
parties are both Orthodox Jews. They married on August 7,
2002, separated in July 2007 and have lived separate and
apart since that time. A prior Judgment of Divorce, granted
to Plaintiff in New York County in 2009, was vacated on
Defendant's application on February 2, 2011. A separation
action commenced by Plaintiff in Orange County in November
2015 was thereafter discontinued, and Plaintiff commenced the
present action for a divorce pursuant to Domestic Relations
Law §170(7) on March 8, 2016.
this lengthy period of matrimonial litigation, Plaintiff has
attempted without success to secure from Defendant a
"Get", which she requires under Jewish law in order
for her to remarry. Documentary evidence establishes that
Defendant refused to participate in proceedings in 2012
before a Rabbinical Court, asserting that Plaintiff had
waived her right to rabbinical arbitration by going to a
secular court. The Rabbinical Court advised Defendant that he
had no power to decide the issue of Plaintiff's alleged
waiver on his own, and was required to arbitrate that issue
before the Rabbinical Court. Defendant refused to comply,
whereupon the Rabbinical Court declared him to be a
"Rabbinical Court evader."
is 33 years of age and in good health. She is employed as a
teacher's aide. Although her 2015 tax return reflects a
total income of $11, 656.00, she acknowledges gross income of
$18, 000.00 annually. Defendant is 33 years of age, Yeshiva
educated, and in good health. Although he claims that he is
unemployed, Defendant did not respond to Plaintiff's
discovery demands and trial subpoena, and has thus failed to
comply with his financial disclosure obligations in this
proceeding. While his 2015 tax return reflects a total income
of only $3, 813.00, credit card statements and rental car
records (obtained independently for trial by Plaintiff)
evidence undisclosed financial resources and employment on
are two children of the relationship, Y.M., aged 14 (d/o/b
xx/xx/2002), and S.M., aged 11 (d/o/b xx/xx/2004). Y.M. is
disabled and resides in an institutionalized setting at the
expense of the state. S.M. has resided with Plaintiff since
the parties' separation. Plaintiff has temporary physical
custody of the children pursuant to an order of the Orange
County Family Court. Custody and visitation issues are being
litigated in Family Court.
has pleaded and proven a cause of action for divorce pursuant
to Domestic Relations Law §170(7).
amount and duration of maintenance is a matter committed to
the sound discretion of the trial court, and every case must
be determined on its own unique facts' (Wortman v.
Wortman, 11 A.D.3d 604, 606...)." Signorile v.
Signorile, 102 A.D.3d 949, 950 (2d Dept. 2013).
"The overriding purpose of a maintenance award is to
give the spouse economic independence, and it should be
awarded for a duration that would provide the recipient with
enough time to become self-supporting." Castello v.
Castello, 144 A.D.3d 723, 41 N.Y.S.3d 250, 254 (2d Dept.
award of maintenance is not determined by actual earnings,
but rather by earning capacity." Scher v.
Scher, 91 A.D.3d 842, 848 (2d Dept. 2012); Arrigo v.
Arrigo, 38 A.D.3d 807, 808 (2d Dept. 2007). "In
determining a party's maintenance or child support
obligation, a court need not rely upon the party's own
account of his or her finances (see Khaimova v.
Mosheyev, 57 A.D.3d 737...; Peri v. Peri, 2
A.D.3d 425...)." Weitzner v. Weitzner, 120
A.D.3d 1406, 1407 (2d Dept. 2014). "'[W]here a
party's account is not believable, the court is justified
in finding a true or potential income higher than that
claimed.' (Scammacca v. Scammacca, 15 A.D.3d
382...)." Castello v. Castello, supra.
"[t]he court may impute income to establish the
party's support obligation (see Domestic
Relations Law §§ 240[1-b][b][iv];
236[B][5-a][b][a]; Wallach v. Wallach, 37 A.D.3d
707, 708...)." Weitzner v. Weitzner, supra, 120
A.D.3d at 1407. "An imputed income amount is based, in
part, upon a parent's past earnings, actual earning
capacity, and educational background." Morrissey v.
Morrissey, 259 A.D.2d 472, 473 (2d Dept. 1999);
Zwick v. Kulhan, 226 A.D.2d 734 (2d Dept. 1996).
Among the various factors relevant to a determination of
imputed income are (1) "demonstrated earning
potential" (see, Gorelick v. Gorelick, 71
A.D.3d 730, 731 [2d Dept. 2010]; Wallach v. Wallach,
supra); (2) evidence that a "spouse's
actual income and financial resources were greater than what
he or she reported on his...tax returns" (Weitzner
v. Weitzner, supra; see, Wallach v. Wallach,
supra); and (3) the party's failure to provide
financial disclosure (see, Farag v. Farag, 4 A.D.3d
502, 503 [2d Dept. 2004]; S.A. v. K.F., 22 Misc.3d
1115 (A) at *18 [Sup. Ct. Kings Co. 2009); Janet O. v.
James O., 13 Misc.3d 1225 (A) at *4 [Sup. Ct. NY Co.
2006]; cf., Maybaum v. Maybaum, 89 A.D.3d 692, 697
[2d Dept. 2011]).
Domestic Relations Law §236B(6)
matrimonial action, commenced on March 8, 2016, is governed
by the amended Domestic Relations Law ("DRL")
§236B(6) effective January 23, 2016.
§236B(6)(c) establishes a formula for determining
"the guideline amount of post-divorce maintenance."
Section (e)(1) provides that the court "shall order the
post-divorce maintenance guideline obligation up to the
income cap...unless the court finds that the post-divorce
maintenance guideline obligation is unjust or
inappropriate" based upon consideration of one or more
of 15 enumerated factors. Section (f)(1) establishes an
"advisory schedule" for determining the duration of
post-divorce maintenance. Whether or not the court uses the
advisory duration schedule, it must per Section (f)(2)
consider the discretionary (e)(1) factors in determining the
duration of post-divorce maintenance.
DRL §236B(6)(o) provides:
In any decision made pursuant to this subdivision the court
shall, where appropriate, consider the effect of a barrier to
remarriage, as defined in subdivision '6' of Section
253 of this Article, on the factors enumerated in paragraph
'e' of this subdivision. 
Plaintiff's Proposal For Post-Divorce Maintenance
represents, and Defendant does not effectually deny, that
Defendant has repeatedly refused to provide Plaintiff with a
"Get." According to Plaintiff, the effect of
Defendant's refusal is as follows:
Until such time as the defendant gives plaintiff a Get, even
if the plaintiff has a secular judgment of divorce, she will
still be considered married to the defendant, she has no
ability to remarry, nor can she have children from another
relationship. If she violates this law, she is considered an
adulteress, and a child born to such a "married"
woman from a subsequent relationship is deemed to be a
A "mamzer" is forbidden to marry another Jew, and
the "mamzer" may also not marry a Gentile, as
he/she is still considered to be a Jew - a "mamzer"
is permitted to marry only another "mamzer."
Furthermore, progeny of "mamzerim" are also
considered "mamzerin" for four subsequent
generations, and they, too, are forbidden to marry anyone
other than mamzerim. This stigma is imposed on all
descendants of a woman who gives birth to the child of a man
while still married to her previous husband, ...