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Achuthan v. Achuthan

Supreme Court of New York, Second Department

January 15, 2020

M. Radh Achuthan, appellant-respondent,
v.
Nisha Sahai Achuthan, respondent-appellant. (Appeal No. 1) M. Radh Achuthan, appellant,
v.
Nisha Sahai Achuthan, respondent. (Appeal No. 2) Index No. 9591/14

          Submitted - October 16, 2019

         D61302 M/afa

          Hasapidis Law Offices, South Salem, NY (Annette G. Hasapidis of counsel), for appellant-respondent in Appeal No. 1 and appellant in Appeal No. 2.

          Hegge & Confusione, LLC, New York, NY (Michael Confusione of counsel), for respondent-appellant in Appeal No. 1 and respondent in Appeal No. 2.

          ALAN D. SCHEINKMAN, P.J. JOSEPH J. MALTESE HECTOR D. LASALLE LINDA CHRISTOPHER, JJ.

          DECISION & ORDER

         In an action for a divorce and ancillary relief, (1) the plaintiff appeals, and the defendant cross-appeals, from a judgment of divorce of the Supreme Court, Suffolk County (David T. Reilly, J.), entered October 21, 2016, and (2) the plaintiff appeals from an order of the same court dated March 16, 2018. The judgment of divorce, insofar as appealed from, upon a decision of the same court dated July 22, 2016, made after a nonjury trial, awarded the defendant maintenance in the amount of $2, 000 per month for a period of 10 years, directed the plaintiff to provide security for his obligation to pay maintenance, and equitably distributed the marital assets by awarding approximately 51% to the defendant and approximately 49% to the plaintiff. The order denied the plaintiff's motion, in effect, to vacate so much of the judgment of divorce as awarded the defendant maintenance, directed the plaintiff to provide security for his obligation to pay maintenance, and equitably distributed the marital assets, and thereupon, to award the plaintiff 60% of the marital assets.

         ORDERED that the cross appeal from the judgment of divorce is dismissed as abandoned; and it is further, ORDERED that the appeal from so much of the judgment of divorce as awarded the defendant maintenance in the amount of $2, 000 per month for a period of 10 years and directed the plaintiff to provide security for his obligation to pay maintenance is dismissed as academic in light of our determination on the appeal from the order; and it is further, ORDERED that the judgment of divorce is modified, on the law and in the exercise of discretion, by deleting the provisions thereof awarding the plaintiff and the defendant the amount of $87, 200.50 each as their respective equitable shares of a CitiBank account containing $174, 401, and substituting therefor provisions awarding the plaintiff the amount of $112, 973.85 and the defendant the amount of $61, 427.15 as their respective equitable shares of the CitiBank account containing $174, 401; as so modified, the judgment of divorce is affirmed insofar as reviewed; and it is further, ORDERED that the order is modified, on the law and in the exercise of discretion, by deleting the provisions thereof denying those branches of the plaintiff's motion which were, in effect, to vacate so much of the judgment of divorce as awarded the defendant maintenance and directed the plaintiff to provide security for his obligation to pay maintenance, and substituting therefor provisions granting those branches of the motion; as so modified, the order is affirmed, and the matter is remitted to the Supreme Court, Suffolk County, for the entry of an appropriate amended judgment of divorce in accordance herewith; and it is further, ORDERED that one bill of costs in connection with each separately briefed appeal is awarded to the plaintiff.

         The parties were married on May 28, 1981, in New Delhi, India, and have one adult daughter. At the time of the marriage, the plaintiff was 45 years old and the defendant was 36 years old. At the time of trial in 2015, the plaintiff and the defendant were approximately 80 years old and 71 years old, respectively.

         At the time of the marriage, the plaintiff was a professor of physics at Southampton College, where he had been employed since 1966. At the time of trial, he was employed full time at Long Island University with an annual salary of approximately $122, 530, and he had annual social security income in the amount of $29, 014.

         At the time of the marriage, the defendant was studying for her doctorate in political science at Columbia University while on leave from her position with the government of India, where she had been employed since 1968. After obtaining her doctorate in 1985, the defendant returned to India and resumed her career with the government of India in order to qualify for her 20-year "golden handshake" retirement package, which she expected to receive in 1988. However, she was unable to qualify due to her years of absence while pursuing her studies in the United States. She continued to work for the government of India until retiring in 1999 at the age of approximately 55. At trial, there was scant evidence regarding the amount of the defendant's earnings during the years she was employed in India. Upon her retirement, the defendant's pension was in the amount of approximately $7, 500 per year. According to the defendant, there are governmental restrictions that impede her ability to transfer funds out of India. Notwithstanding that the defendant obtained her green card in approximately 2001, which she achieved with the help of an attorney paid for by the plaintiff, she never secured gainful employment in the United States. At the time of trial in 2015, she had been working as a freelance interpreter but claimed that she had only earned $240 for the year and that the contract had terminated. Since 2010, the defendant received social security income of $14, 400 per year based on the plaintiff's earnings. The Supreme Court determined that the defendant's income from all sources was $55, 000 per year.

         For a significant amount of time during their 33-year marriage, the plaintiff and the defendant lived apart, with the plaintiff residing at the marital residence located in Southampton, which he had purchased prior to the marriage, and the defendant residing in India. After their marriage in 1981, the parties resided together at the marital residence from July 1981 through November 1985, along with their daughter, who was born in October 1982. For the daughter's first three years, the defendant was her primary caregiver, with the plaintiff assisting in the late afternoons while the defendant worked on her studies. Subsequently, in December 1985, the defendant returned to India with the parties' daughter and remained in India until approximately 1999. Over the course of the years 1985 to1999, the family spent time together intermittently in India, in Southampton, and while on vacation. The parties' daughter resided with the defendant in India from 1985 to 1997, except for the 1993-1994 school year, during which she resided with the plaintiff in Southampton. The parties' daughter began living with the plaintiff and attending high school in Southampton in 1997 and remained in the United States, except for periodic visits to India. After retiring, the defendant returned to the marital residence in Southampton in 2000, where she resided intermittently between Southampton and India until May 2014, when the divorce action was commenced, after which the defendant remained in the United States.

         During the marriage, while maintaining separate finances, the parties each amassed substantial marital assets. The parties agreed that the plaintiff accumulated marital assets totaling $2, 573, 440.69, including real property located in India with a value of $733, 179.23. The defendant accumulated marital assets totaling $1, 424, 673.55, including real property located in India, the marital portion of which was valued by the Supreme Court at $1, 234, 072.57 after awarding the defendant a separate property credit of $63, 714.55.

         This action for a divorce and ancillary relief was commenced on May 8, 2014. At trial, the parties stipulated, inter alia, to the identity and valuation of all the marital property at the time of commencement, except for the value of the real property in India, which was ultimately determined by the Supreme Court after trial. The issues of equitable distribution and maintenance were determined by the court after a nonjury trial in a decision dated July 22, 2016. The court entered a judgment of divorce on October 21, 2016. The court, inter alia, (1) awarded the defendant maintenance in the amount of $2, 000 per month for a period of 10 years, (2) directed the plaintiff to provide security for his obligation to pay maintenance, and (3) equitably distributed the marital assets by awarding approximately 51% to the defendant and approximately 49% to the plaintiff. The court stated that "[s]ome additional assets were distributed to the defendant as an adjustment for the loss of health insurance benefits." One of the marital assets distributed by the court was the marital portion of the plaintiff's TIAA-CREF account, which was stipulated to be in the amount of $945, 082, which the court divided equally between the parties. The remaining portion of the plaintiff's TIAA-CREF account in the amount of $1, 027, 239.89 was stipulated to be the plaintiff's separate property. The plaintiff appeals from stated portions of the judgment of divorce. While the defendant filed a notice of cross appeal from the judgment of divorce, we must dismiss the cross appeal as abandoned since the defendant does not seek reversal or modification of any portion of the judgment of divorce in her brief (see Kamins v United Healthcare Ins. Co. of N.Y., Inc., 171 A.D.3d 715, 716).

         By letter dated June 19, 2017, TIAA-CREF advised the plaintiff that an error was previously made in the calculations of the marital portion of the plaintiff's TIAA-CREF account. As a result of the recalculations, the marital portion of the TIAA-CREF account, which had been calculated at $945, 082, was increased by approximately $800, 000 to approximately $1, 755, 724. The plaintiff's separate property portion was correspondingly decreased by approximately $800, 000 from $1, 027, 239.89 to ...


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