DECISION/FINDINGS OF FACT AND ORDER AFTER TRIAL The parties are married and have one emancipated child together. On November 21, 2022, the wife, Ruby W. (hereinafter “Wife” or “Mrs. W”) filed a spousal support petition against the husband, Cleveland W. (hereinafter “Husband” or “Mr. W”). See Petition for Spousal Support (W, 11/07/2022), Nassau County Family Court Docket Number F-08836-22.Petitioner subsequently discovered that the property is located in the Glens Falls Common School District (hereinafter the Common School District), and not the City School District. To that end, the notice of petition and petition were mailed to the superintendent of the Common School District on July 28, 2020. On July 31, 2020, Claudia K. Braymer, Esq. sent correspondence advising of her representation of the Common School District and requesting that all “[c]orrespondence, pleadings, motions and other papers regarding the…matter…be served upon [her] firm.” Despite attempts to settle the matter, the parties were unable to resolve the case. On April 26, 2023, a trial in the matter commenced and was completed. Mr. and Mrs. W proceeded as self-represented parties. At the conclusion of the evidence, the parties delivered their summations. The Court reserved decision. The Court’s determination follows: THE EVIDENCE TESTIMONIAL EVIDENCE Mrs. W’s Testimony Mrs. W testified that she and Mr. W were married on January 26, 1996. She told the Court that the marriage “only worked for three to six months.” She stated that Mr. W “betrayed” her because he met another woman. Mrs. W testified that after Mr. W left her, he “got locked up.” She told the Court that she did not visit him in prison because she knew that the other woman was visiting him there. She asked the Court to look at Mr. W’s neck because she stated that he has a tattoo of the other woman’s name on it. Mrs. W testified that Mr. W “disrespected” her because the other woman is someone that she did not get along with in high school. Mrs. W testified that Mr. W held several jobs over the years when he was not in prison, but he never provided her with any support. She told the Court that when a man marries a woman, it is his obligation to take care of that woman. She elaborated that instead of taking care of her for the past 27 years, Mr. W has being taking care of the other woman. Mrs. W testified that the parties have one grown child together, L.W. (hereinafter “L.W.” or “daughter”). She told the Court that when Mr. W went to prison, their daughter was one years old and when he came out, she was nine years old. She stated that Mr. W has never done anything for their daughter. She told the Court that L.W. speaks with her father, but does not visit him because she does not like the other woman. Mrs. W testified that she is 70 years old and is living on a fixed income. She asked the Court to order Mr. W to pay spousal support to her. She stated “what he can pay, let him pay because he owes that to me. He hasn’t given me money in years.” Mr. W’s Testimony Mr. W testified that Mrs. W was lying to the Court. He told the Court that when he met Mrs. W, she already had three kids. He stated that he took care of her and them. He elaborated that he was “born in the south where you are taught to help people.” He told the Court that when the parties got married and were living together in the marital residence, he continued to take care of her. Mr. W testified that a marriage is “supposed to be 50/50.” He explained that “at the very least, the woman should help the man out sometimes.” He told the Court that he left the marital abode because whenever he came home from work, Mrs. W was having parties there. Mr. W testified that Mrs. W was spending the marital money on others so she could look important. He elaborated that Mrs. W gave him nothing but problems, and that she was a “gold digger.” Mr. W testified that he found another woman who cares for him and loves him. He stated that he has been with that other woman for the last 27 years. He told the Court that he tried to divorce Mrs. W, but she evaded service so he was never able to start a divorce proceeding. He stated that he does not have money to hire a matrimonial attorney, but he is going to try to save some so he can be “done with her.” Mr. W acknowledged that the parties have one grown child together. He told the Court that he has a good relationship with his daughter. He stated that they speak with each other on a regular basis and go to dinner together. Mr. W testified that he is 66 years old and earns “very little money.” He told the Court that his marginal income barely covers his bills. He stated that he had also been receiving Social Security Disability benefits, but his Social Security Disability benefits stopped because of a problem that he is trying to sort through. DOCUMENTARY EVIDENCE Mrs. W admitted her spousal support petition, dated September 7, 2006, and concomitant dismissal order due to the unknown whereabouts of the respondent, dated November 9, 2006, into evidence as Petitioner’s Exhibit 1. Mrs. W admitted a letter from St. Francis Hospital, dated January 5, 2007, a Notice of Fair Hearing, dated May 29, 2007, an Application Summary for Disability Insurance Benefits, dated February 26, 2007, and a Social Security Income benefits document, dated February 28, 2007, into evidence as Petitioner’s Exhibit 2. Mrs. W admitted a copy of the parties’ Certificate of Marriage Registration, dated January 31, 1996, into evidence as Petitioner’s Exhibit 3. Mrs. W admitted her spousal support petition, dated November 7, 2022, into evidence as Petitioner’s Exhibit 4. Mrs. W admitted her signed and notarized financial disclosure affidavit, dated March 1, 2023, into evidence as Petitioner’s Exhibit 5. Mr. W admitted his Social Security Disabiliy benefits document, dated February 6, 2023, into evidence as Respondent’s Exhibit A. Mr. W admitted three of his January, 2023 pay stubs into evidence as Respondent’s Exhibit B. Mr. W admitted his Social Security Disability benefits document, dated February 15, 2023, into evidence as Respondent’s Exhibit C. Mr. W admitted his Social Security Disability benefits document, dated March, 14, 2023, into evidence as Respondent’s Exhibit D. Mr. W admitted two of his recent paystubs, one from February, 2023 and one from March, 2023, into evidence as Respondent’s Exhibit E. The Court took judicial notice of the information contained within the Universal Case Management System’s online database as it relates to the parties. DISCUSSION A married person is chargeable with his or her spouse’s support. See N.Y. FAM. CT. ACT §§412, 442 (McKinney’s 2023); see also Young v. Young, 186 A.D.3d 719, 721 (2d Dep’t 2020); Bibbes-Turner v. Bibbes, 174 A.D.3d 1506, 1507 (4th Dep’t 2019). Where married parties have not entered into an agreement of their own, a spouse may petition the family court for a spousal support award. See N.Y. FAM. CT. ACT §§412, 422(a) (McKinney’s 2023). A hearing must be held after which there must be a finding that a husband or wife is possessed of sufficient means, or able to earn such means, justifying spousal support. See N.Y. FAM. CT. ACT §442 (McKinney’s 2023); Young, 186 A.D.3d at 721. Family Court Act (hereinafter “FCA”) §412 contains a formula for computing spousal support based upon the parties’ combined income.1 See N.Y. FAM. CT. ACT §§412(3), (4), (5) (McKinney’s 2023). A support magistrate may depart from the guidelines amount where it is found that such sum is unjust or inappropriate. See N.Y. FAM. CT. ACT §412(6)(b) (McKinney’s 2023). In its determination, a support magistrate must contemplate the factors delineated within FCA §412(6)(a). See N.Y. FAM. CT. ACT §§412(6)(a). A support magistrate must issue a written order with, or set forth on the record, the factors it considered and the reasons for its departure from the guidelines amount. See N.Y. FAM. CT. ACT §412(6)(b) (McKinney’s 2023). Spousal support awards are non-durational. See N.Y. FAM. CT. ACT §§412, 442 (McKinney’s 2023); see also Levy v. Levy, 65 A.D.3d 1295, 1296 (2d Dep’t 2009) (unlike maintenance in context of matrimonial action, Family Court Act does not provide durational limit on spousal support). Such awards terminate by operation of law upon the parties’ divorce or the death of either party, or by the parties’ written or oral agreement in open court. See N.Y. FAM. CT. ACT §412(10) (McKinney’s 2023). The evidence showed that Mrs. W is 70 years old and Mr. W is 66 years old. The proof established that the parties were married on January 26, 1996 and have one emancipated child together. The evidence showed that the parties’ nuptials and cohabitation occurred almost three decades ago and was short-lived with little or no communication thereafter until the instant petition’s filing. Both parties’ earning capacities and financial landscapes appear bleak with no relief in sight. The proof established that Mrs. W lives on what she characterized as a “fixed income.” The evidence showed that Mr. W has a part-time job working in the shelter system, earning $18.26 an hour. The proof established that Mr. W will receive Social Security Disability benefits in the amount of $466.00 monthly, commencing April, 2023. Mrs. W failed to establish that Mr. W’s ability to earn is anything more than what Mr. W has shown it to be. The evidence showed that Mr. W was incarcerated for almost a decade. Moreover, the proof established that the petition’s filing was a total shock to Mr. W, who testified that he has been trying to divorce Mrs. W for years and was frustrated by her lack of cooperation. Thus, the Court finds that Mr. W has not purposefully underemployed himself or hidden income or assets in an effort to thwart the proceedings. See e.g. Justin v. Justin, 120 A.D.3d 1417, 1418 (2d Dep’t 2014) (finding court properly declined to impute income where father’s choice not to re-enlist in Army not undertaken to reduce or avoid child support obligation); Cordero v. Olivera, 40 A.D.3d 852, 853 (2d Dep’t 2007) (upholding trial court’s credibility determination that parent had not intentionally underemployed herself). Taking into consideration the totality of the evidence presented at trial and applying it to the law, the Court finds that Mr. W is not possessed of sufficient means, or able to earn such means, to justify an award of spousal support to his wife of 27 ½ years who has been estranged from him for the last 27 years. Accordingly, the Court declines to award spousal support to Mrs. W.2 See e.g. Hutchinson v. Hutchinson, 188 A.D.3d 1208, 1208 (2d Dep’t 2020) (“the court’s spousal support award was appropriate based upon a consideration of the parties’ respective circumstances at the time of their presentation to the Family Court”); Bibbes-Turner v. Bibbes, 174 A.D.3d 1506, 1507 (4th Dep’t 2019) (upholding deviation from presumptive amount where husband was incarcerated during marriage, parties lived apart for 13 years preceding support proceeding, and had limited contact after his release); Costigan v. Renner, 76 A.D.3d 1039, 1040 (2d Dep’t 2010) (affirming supreme court’s denial of spousal support where court took statutory factors into account, including parties’ less than three years cohabitation); Zaky v. Andil, 81 A.D.3d 842, 843 (2d Dep’t 2011) (upholding support magistrate’s decision based upon particular circumstances of case). Assuming arguendo that the Court found otherwise, in light of the parties’ ages and health,3 present and future earning capacity, short duration of their cohabitation prior to separation, and remote proximity of the parties’ pre-support proceedings household, the Court would likewise decline to order Mr. W to pay spousal support to Mrs. W. CONCLUSION ADJUDGED, that Mr. W is not possessed of sufficient means, or able to earn such means, to be chargeable with spousal support; and it is further, ADJUDGED, that having considered the totality of the evidence presented and having applied such proof to the law, the Court declines to enter a spousal support award on Mrs. W’s behalf; and it is therefore, ORDERED, that Mrs. W’s spousal support petition is hereby dismissed with prejudice. This constitutes the decision, opinion and order of the Court. YOUR WILLFUL FAILURE TO OBEY THIS ORDER MAY, AFTER COURT HEARING, RESULT IN YOUR COMMITMENT TO JAIL FOR A TERM NOT TO EXCEED SIX MONTHS FOR CRIMINAL NON-SUPPORT OR CONTEMPT OF COURT; YOUR FAILURE TO OBEY THIS ORDER MAY RESULT IN SUSPENSION OF YOUR DRIVER’S LICENSES, STATEISSUED PROFESSIONAL, TRADE, BUSINESS AND OCCUPATIONAL LICENSES AND RECREATIONAL AND SPORTING LICENSES AND PERMITS; AND IMPOSITION OF REAL OR PERSONAL PROPERTY LIENS. PURSUANT TO SECTION 1113 OF THE FAMILY COURT ACT, AN APPEAL MUST BE TAKEN WITHIN 30 DAYS OF RECEIPT OF THE ORDER BY APPELLANT IN COURT, 35 DAYS FROM THE DATE OF MAILING OF THE ORDER TO APPELLANT BY THE CLERK OF COURT, OR 30 DAYS AFTER SERVICE BY A PARTY OR THE ATTORNEY FOR THE CHILD UPON APPELLANT, WHICHEVER IS EARLIEST. Check applicable box: Order mailed on [specify date(s) and to whom mailed]: Order received in court on [specify date(s) and to whom given]: Dated: April 28, 2023
