DECISION AND ORDER REGARDING EQUITABLE DISTRIBUTION OF SUPREME COURT JUDGMENT I. Procedural Posture This matter was scheduled for trial on January 23, and 25, 2023 as to certain unresolved financial issues between the parties. On January 26, 2023, the court held an inquest after the parties were allocuted on a Stipulation of Settlement resolving all financial issues (except for the equitable distribution of a judgment in the amount of $226,582.33, in favor of Plaintiff’s mother, EM, against the Defendant JWM). The judgment at issue was rendered by Hon. Wayne M. Ozzi, JSC, and was Filed and Docketed on December 29, 2022, in the office of the Richmond County Clerk. The judgement stems from the Defendant’s occupancy of the marital residence, with the children of the marriage, pursuant to an Order of exclusive use and occupancy of this court (Hon. Barbara I. Panepinto, JSC) dated December 11, 2020. The parties submitted this issue to for the court to decide, on January 26, 2023, with each party subsequently submitting their position on the issue, via Memoranda of Law. The parties waived a hearing, trial, and oral argument on the issue, as the matter was extensively conferenced by the court, on and off the record, with counsel and the parties. II. Facts The parties were married on June 6, 2015. Prior to marriage they cohabitated at the home of MT (plaintiff’s grandmother) located at XXX Road, Staten Island, New York (the marital residence). They continued to reside at the premises together, after they were married. The parties never paid rent for the use and occupancy of the premises, and there is some indication that they contributed to real property taxes at times throughout their residency. Title to the marital residence passed to EM (Plaintiff’s mother) upon the death of MT, on or about September 24, 2019. On July 11, 2019, Defendant JWM obtained a Temporary Order of Protection against the Plaintiff, from Family Court, Richmond County, thereby excluding him from the marital residence. Further Family Court action ensued, not only with the parties of this action, but Plaintiff’s parents, whereupon Temporary Orders of Protection were sought by the Defendant JWM. Under one such docket, a consent Order for Plaintiff’s parents to stay away from the marital residence was issued. On August 27, 2019, Plaintiff JM filed a sworn Statement of Net Worth wherein he stated that his monthly rental and housing obligations are “$0.” On August 17, 2022, Plaintiff JM filed a second sworn Statement of Net Worth wherein he stated that his monthly rental and housing obligations are “$0.” On November 11, 2019, Defendant JWM filed a sworn Statement of Net Worth wherein she stated that real estate taxes were the only monthly expense for housing, in the sum of $385.00. On January 16, 2023, Defendant JWM filed a further sworn Statement of Net Worth wherein she lists housing costs as “$0.” Plaintiff filed an Order to Show Cause on January 17, 2020, seeking inter alia exclusive use and occupancy of the marital residence. Defendant cross-moved for the same. The motion was decided by the court (Panepinto, J.) on December 11, 2020, by written consent Order. On May 26, 2020, EM initiated an action solely against Defendant JWM (and John Does 1-2, Jane Does 1-2 presumably representing the grandchildren and any other persons residing at the marital residence) seeking inter alia ejectment, fair market value for rent, and exclusive use and occupancy of the marital residence. Notably absent from the caption is EM’ son (Plaintiff herein) JM. On December 11, 2020, the court (Panepinto, J) issued an Order (The pendente lite Order) which states in pertinent part, “that the Defendant’s cross-motion seeking exclusive use and occupancy is hereby granted. Defendant will have exclusive use and occupancy of the marital residence until further Order of this Court.” The issues in the action between EM and JWM were heard at IAS Part 23 of the Supreme Court, Richmond County at a bench trial before Justice Wayne M. Ozzi. The Court rendered its Decision and Order after trial on November 2, 2022 in favor of Plaintiff EM, and against Defendant JWM with respect to the Plaintiff’s second cause of action for use and occupancy, in the sum of $214,300.00 through October 24, 2022, plus $12,200.00 (at the per diem rate of $200.00) for sixty-one (61) days of further use and occupancy from October 25, 2022 to December 24, 2022, with prejudgment interest at the statutory rate (from September 24, 2019 through and including December 24, 2022) in the sum of $33,295.50, and costs and disbursements (in the sum of $755.00). In addition, the court held that use and occupancy would continue to accrue at a rate of $200.00 per diem until the Defendant surrendered possession of the marital residence. The total judgment, up to the date of its entry, less an amount ($25,898.00) representing Defendant’s award with respect to her first counterclaim, is $226,582.33. The judgment was entered on December 29, 2022. A Notice of Appeal was filed by the Defendant on January 4, 2023, however, at the time of this Decision and Order, there is no stay of execution, so the judgment continues to accrue at the rate of $200.00 per diem plus statutory interest. This court will only confront the portion of the judgment attributable to the duration between the date of its entry and the date of inquest (December 29, 2022, and January 26, 2023). A Judgment of Divorce was orally granted at inquest on January 26, 2023, however, the parties have not filed the proposed Findings of Fact and Conclusions of Law, and a proposed Judgment of Divorce, as they require this court’s Decision. The parties now seek a judicial determination as to the equitable distribution of this debt. III. Discussion A. Exclusive Use and Occupancy of the Marital Residence On July 11, 2019, Defendant JWM had obtained exclusive use and occupancy of the marital residence, resulting from a Temporary Order of Protection she petitioned obtained from the Family Court, excluding her husband from the marital residence. On December 11, 2020, the Supreme Court (Panepinto, J.) issued an Order (in connection with Motion Sequence: #001) denying the husband Plaintiff’s request for exclusive use and occupancy of the home and granting Defendant’s cross-motion (The pendente lite Order) and which states in relevant part, “that the Defendant’s cross-motion seeking exclusive use and occupancy is hereby granted. Defendant will have exclusive use and occupancy of the marital residence until further Order of this Court.” An Order of exclusive use and occupancy is an order of support, particularly when it is ordered pendente lite. Plaintiff’s Order to Show Cause seeking said relief was filed on January 17, 2020, and his mother commenced an action against Defendant JWM approximately four (4) months later, seeking to exclude her daughter-in-law and presumably her grandchildren from the home, and for the collection of rent, representing use and occupancy for the marital residence, that she had recently inherited. The court ultimately via consent Order (on December 11, 2020), granted the wife (and children of the marriage) exclusive use and occupancy of the marital residence without any mention of rent. It is undisputed that that parties and their children, resided in the marital residence their entire married life. During this time, rent was never demanded, expected, or paid by the parties. The husband represented, in sworn Statement(s) of Net Worth that there were no housing expenses. B. Equitable Distribution Equitable distribution law does not mandate an equal division of marital property[.]” (see Jones v. Jones, 182 AD3d 586 [2d Dept 2020] quoting Culen v. Culen, 157 AD3d 926 [2d Dept 2018]; Scaramucci v. Scaramucci, 140 AD3d 848 [2d Dept 2016]). “The equitable distribution of marital assets must be based on the circumstances of the particular case and the consideration of a number of statutory factors.” (See Jones v. Jones, 182 AD3d 586 [2d Dept 2020] quoting Culen v. Culen, 157 AD3d 926 [2d Dept 2018] citing Domestic Relations Law §236 [B] [5] [d]). “Those factors include: the income and property of each party at the time of marriage and at the time of commencement of the divorce action; the duration of the marriage; the age and health of the parties; the loss of inheritance and pension rights; any award of maintenance; any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of marital property by the party not having title; and any other factor which the court shall expressly find to be just and proper[.]” (see Silvers v. Silvers, 197 AD3d 1195 [2d Dept 2021]; quoting Taylor v. Taylor, 140 AD3d 944 [2d Dept 2016]; Halley-Boyce v. Boyce, 108 AD3d 503 [2d Dept 2013]; citing Domestic Relations Law §236 [B] [5] [d]). i. The Judgment is Marital Debt Domestic Relations Law §236(B)(5)(f) provides that the court may, in its discretion, make an order regarding the use and occupancy of the marital residence “without regard to the form of ownership of such property.” Exclusive possession of the marital residence is generally granted to the custodial parent (see Cabeche v. Cabeche, 10 AD3d 441 [2d Dept 2004]; Goldblum v. Goldblum, 301 AD2d 567 [2d Dept 2003]; see also Gahagan v. Gahagan, 76 AD3d 538 [2d Dept 2010]). In determining whether the custodial parent should be granted exclusive occupancy of the marital home, the trial court should consider, inter alia, the needs of the children, whether the noncustodial parent is in need of the proceeds from the sale of that home, whether comparable housing is available to the custodial parent in the same area at a lower cost, and whether the parties are financially capable of maintaining the residence (see Graziano v. Graziano, 285 AD2d 488 [2d Dept 2001]). As one factor, the “need of the custodial parent to occupy the marital residence [must be] weighed against the financial need of the parties” (Goldblum v. Goldblum, 301 AD2d at 468; see Skinner v. Skinner, 241 AD2d 544, 545-546 [2d Dept 1997]). Here, the court granted use and occupancy to the Defendant and custodial parent mother, based in part, on Statements of Net Worth of both parties, showing that they were not paying rent, and were, perhaps paying a nominal amount toward real property tax of the residence. There is no doubt that the judgment at bar, is the result of the collaborative efforts of Plaintiff JM and his mother to circumvent the Temporary Order of Protection as well as the pendente lite order. The court determined rental value, in the sum of $6,000.00 per month, is an amount that the parties could never have afforded during the marriage, and certainly not now. There is no doubt that Defendant’s mother-in-law knew this, nonetheless she persisted in seeking market value rent through a Supreme Court ejectment action, including retaining experts to support her claims at trial. Although this “debt” was created after the commencement of the within action, the debt was unforeseen, and contrived, for the benefit of one party over the other. The judgment/debt is unmistakably marital, and its apportionment between the parties, is the subject of equitable distribution herein. ii. Equitable Distribution of the Judgment (Marital Debt) The factors a court must consider in distributing marital property are set forth in Domestic Relations Law §236 [B] [5] [d]. ‘Before making the determinations herein, the Court has reviewed all the enumerated statutory factors. This Court has included for discussion herein of only those factors that specifically apply to the facts of this proceeding. Accordingly, some factors were omitted while others were afforded minimal weight, if any, by this Court. Regarding tax implications, if any, no evidence was offered by either party as to the tax impact of any potential award granted herein, and therefore the court remains silent on that matter. Specifically, in this case, the Court has considered the following factors: (a) the income and property of each party at the time of marriage, and at the time of commencement; (b) the duration of the marriage and the age and health of both parties; (c) the probable future financial circumstances of each party; (d) the wasteful dissipation of assets by either spouse including the deception, calculation, and manipulation in manufacturing marital debt that benefits one spouse over the other; and (e) acts of domestic violence committed by either party and the impact of said acts (See: Santamaria v. Santamaria, 177 AD3d 802 [2d Dept 2019]). In fashioning an award of equitable distribution, the Supreme Court is required to discuss the statutory factors it relied upon in distributing marital property[.]‘” (see Morille-Hinds v. Hinds, 87 AD3d 526 [2d Dept 2011]; quoting Spera v. Spera, 71 AD3d 661 [2d Dept 2010]; quoting Milnes v. Milnes, 50 AD3d 750 [2d Dept 2008]). This is in accord with the well-settled principle that the court has broad discretion in allocating the assets and debts of the parties to a matrimonial action (Minervini v. Minervini, 152 AD3d 666 [2d Dept 2017]) citing: DiFiore v. DiFiore, 87 AD3d 971 [2d Dept 2011]). Expenses incurred prior to a divorce action typically constitute marital debt and should be equally shared by the parties” (Bogdan v. Bogdan, 260 AD2d 521, 522 [2d Dept 1999]; see Sawin v. Sawin, 128 AD3d 663 [2d Dept 2015]; McCoy v. McCoy, 117 AD3d 806 [2d Dept 2014]). The debt at issue here came into existence post commencement. Nevertheless, the court has broad discretion in allocating the assets and debts of the parties to a matrimonial action (see DiFiore v. DiFiore, 87 AD3d 971, 974-975 [2d Dept 2011]; Corless v. Corless, 18 AD3d 493, 494 [2d Dept 2005]), and “liability for the payment of marital debts need not be equally apportioned but may be distributed in accordance with the [equitable distribution] factors set forth in Domestic Relations Law §236(B)(5)(d)” (Lewis v. Lewis, 6 AD3d 837 [3 Dept 2004]; see DiFiore v. DiFiore, 87 AD3d at 974-975). The timeline, strategy, and actions of the Plaintiff call into question whether the “debt” was manufactured for the purposes of this litigation, and, whether the husband Plaintiff acted in collaboration with his mother to manifest this outcome. This was a tight-knit family. The Plaintiff’s grandmother generously allowed the parties to reside “rent free” in a house she owned, for many years, and presumably, many more to follow has she not died, and the Plaintiff not sought a divorce. The action instituted by EM compelled Justice Ozzi to reach a conclusion as to the fair market rental value of the marital residence. The value the court arrived at, to wit: $6,000.00 per month, was derived based upon testimony of expert witnesses who were part of Plaintiff EM’s case. The rental value is more than the parties’ gross monthly income. It is unfathomable that the parties would ever have consented to or agreed to inhabit a premises that cost so much. The living arrangements were a family accommodation. When Plaintiff commenced this action, it is clear, that his parents not only chose sides, a somewhat understandable phenomenon, but actively tried to influence the rulings of this court, namely by litigating the matter in the Family Court, hiring counsel, and filing a petition to intervene, and by commencing the ejectment action; despite Justice Panepinto’s Order for temporary use and occupancy. This court has enough indicia to conclude that the action commenced by the Plaintiff’s mother was encouraged and conducted at the behest of her son, the Plaintiff herein, primarily for his benefit. The creation of the within marital debt could only serve as a benefit to the Plaintiff, who foreseeably, will have his apportioned share either forgiven or reduced by his mother, with whom he resides. Where indebtedness is incurred by one party for his or her exclusive benefit or in pursuit of his or her separate interests, the obligation should remain that party’s separate liability” (Corless v. Corless, 18 AD3d 493, 494 [2d Dept 2005]; citing: Jonas v. Jonas, 241 AD2d 839, 840 [3 Dept 1997]; see Oliver v. Oliver, 70 AD3d 1429 [4 Dept 2010]; McKeever v. McKeever, 8 AD3d [3 Dept 2004]). This court does not cast aspersions or critique as to the Decision rendered by Justice Ozzi, in the action by EM against her daughter-in-law, which was handed down after a bench trial. The role of this court is very different. This is an action for divorce. This court must consider the debt of the marital estate and ascribe percentages of apportionment of the debt to the respective parties. The power of this court, and its applicability in this instance, is rooted in equity. Justice Panepinto granted exclusive use and occupancy to the Defendant wife without any mention of rental value. The presumptive rationale for doing so was because there was no rent to due and owing, and it is clear to this court, that the lawsuit filed by the Defendant’s mother, although meritorious on its face, was indeed an attempt to oust her daughter-in-law and grandchildren from the marital residence, ostensibly at the behest of her son; to circumvent the Temporary Order of Protection, and this court’s pendente lite order. This was a bitter, nasty, and vengeful matrimonial action spanning almost four years, in multiple court forums, and costing hundreds of thousands of dollars in counsel fees and a judgment. Money that these parties never had. Both parties were petulant to the last day in court, where the parties quibbled and bickered nastily over personal property of little to no value, including a decades old television, an old snow blower, and other assorted tchotchkes collectively worth less than an hour of their respective counsel fees. It is abundantly clear to this court, based upon all facts and circumstances, including the timeline of the commencement of the action by the Plaintiff’s mother coinciding with his motion for exclusive use and occupancy, and the mother’s motion to intervene in the matrimonial action; that obtaining the judgment was an effort to manipulate the outcome of this court’s proceedings, ensuring financial victory for the Plaintiff. Perhaps in principle, and now as a matter of law, the Plaintiff’s mother is entitled to use and occupancy of the subject premises from the time that she came into title. This court has no authority to change that fact, nor does it seek to do so. However, as a matter of equity, this court can see through the Plaintiff’s charade. The attempt to circumvent court orders and proceedings is not veiled. This was a blatant collusive attempt to cause a windfall in favor of the Plaintiff husband, and it will not stand in this court. As stated previously, equitable distribution does not mean “equal” distribution of assets or debt. This case was assigned to this part several years after commencement, necessitating assiduous review of the file. The beckoning question, the striking, confounding inquiry of this court, is why the Plaintiff JM was not joined as a Defendant in the action brought by his mother against his wife and children. He was clearly an interested party, only excluded, albeit temporarily, by an Order of Protection. This fact would only be known to the Plaintiff EM, had she been provided with the information by her son, who, incidentally, was living with her during the pendency of this action; and would benefit from his wife and children vacating the marital residence. He wanted to live at the marital residence, his motion papers say so. EM was not a disinterested landlord seeking fair market rental value, despite what her pleadings averred in the ejectment action. She was and remains interested in an outcome that benefits her son’s interest. The efforts by mother and son were, to this court, calculated, planned, and contumeliously executed, to the detriment of JWM and by extension, the children of the marriage. This court, in its review of all facts and circumstances does not “check” its common sense at the door. This was a shameful attempt at manufacturing debt, to reduce the size of Defendant JWM’s distributive award. Debts incurred to reduce the size of the other’s spouse’s distributive award are not to be shared as conventional marital debts. This court can plainly see that JWM, (the custodial parent, receiving a relatively small amount of child support, manifested greatly, by the underemployment and moral ineptitude of the Plaintiff father who fails to seek or obtain alternative and/or additional employment, despite the time and ability to do so) would be financially ruined, and the children would suffer great hardship, if the court apportioned any of the marital portion of this judgment to her. That this court must determine this matter, is not only ignominious, but indicative of the selfish, manipulative, and egomaniacal, workings of the Plaintiff father. This court is hopeful that the Plaintiff’s positions herein were clouded by the ongoings of an acrimonious divorce action, and that he will move forward with clarity and prudent judgment, not only for his benefit, but for the sake of the children. The very fact that the Plaintiff’s mother only named her daughter-in-law and presumably her grandchildren (John Does 1-2 and Jane Does 1-2) all but ensures that she never intended to exact any money from her son. That’s a good prospect for both parties. Now, the Plaintiff can work out his apportioned debt with his mom, or pay it in full on his own. Nevertheless, this court refuses to saddle the Defendant mother, and by extension, the children of this marriage with ill-gotten “phantom debt.” IV. Conclusion Therefore, and based upon the foregoing, the judgment entered by Justice Wayne M. Ozzi on December 29, 2022, is deemed marital debt accruing up to and including January 26, 2023. As such, this court apportions the judgment as follows: 100 percent to the Plaintiff husband JM and 0 percent to Defendant JWM. Any amount accruing after January 26, 2023, is non-marital, and therefore, the sole responsibility of Defendant JWM. V. Decretal Paragraphs Therefore, it is hereby ORDERED, that the judgment of Hon. Wayne M. Ozzi, JSC, entered in the office of the Clerk of the County of Richmond on the 29th day of December 2022 up to and including January 26, 2023, is marital debt; and it is further, ORDERED, that the judgment of Hon. Wayne M. Ozzi, JSC, entered in the office of the Clerk of the County of Richmond on the 29th day of December 2022, deemed marital debt up to and including January 26, 2023, is hereby apportioned to the parties of this action as follows: 100 percent to Plaintiff JM and 0 percent to the Defendant JWM; and it is further, ORDERED, that any amounts accruing after January 26, 2023, from the judgment of Hon. Wayne M. Ozzi, JSC (entered in the office of the Clerk of the County of Richmond on the 29th day of December 2022) is not marital, and shall be the sole responsibility of JWM; and it is further, ORDERED, that Plaintiff shall settle proposed Findings and Conclusions of Law and proposed Judgment of Divorce, on notice, with a copy of the transcript of the proceedings of January 26, 2023, within 20 days of this Decision and Order. ORDERED, that the clerk of the court shall enter judgment accordingly. Any relief requested and not specifically addressed by this Decision and Order is DENIED. This shall constitute the Decision and Order of the court. Dated: February 24, 2023
