On 21 May 2002, plaintiff commenced the action. The parties were married on 24 January 1992, in Brooklyn, New York. The husband is 37 years of age and the wife is 46 years of age. The parties have two (2) children, a son born on 31 March 1988, and a daughter born on 27 September 1995. The husband is a business and property owner. The wife is a homemaker and factory worker.
A New York Sex Crimes Lawyer said the parties were born in the Country of Ecuador and knew each other in Ecuador prior to coming to the United States. The wife was previously married to the husband’s cousin who subsequently died. It is undisputed that the husband also knew the wife’s two (2) brothers who were the subject of testimony in the instant matter.
When the wife immigrated to the United States in 1987, she did so without permission to permanently reside in the United States and was in the company of her now deceased husband. It appears that the husband and wife herein and the wife’s husband at that time, moved into a two-bedroom apartment which was also occupied by other individuals from Ecuador.
The husband claims that he has a partial grade school education from Ecuador. A New York Sex Crimes Lawyer said he first worked as a restaurant dish washer and delivery person. Eventually, he learned to cook and drive an automobile. The husband asserts that although his income was not substantial, his expenses were minimal. For example, his share of the rent at that time was $120 a month. It is undisputed that the wife is presently a recipient of public assistance on behalf of the two (2) children of this marriage.
The wife asserts that she does not speak or write English but her husband is well versed in English notwithstanding the fact that he used an interpreter during the trial. This court notes that in court appearances prior to the trial there was never a Spanish interpreter requested for the husband and, in fact, during the course of the trial the husband often answered questions in English before the translation began.
The parties have been separated since May 2001 when the Family Court issued a temporary order of protection ordering the husband to stay away from the wife, children and the marital residence. The wife asserts that she was the victim of severe domestic violence. However, the husband postures that the trial testimony of the wife’s daughter from another relationship reveals that the domestic violence which was imposed upon her mother was not as severe as the wife would like the court to believe. A Nassau County Sex Crimes Lawyer said the husband asserts that he was good provider for the wife. Despite this contention, the domestic violence that was imposed upon the wife resulted in a Criminal Court order of protection, after a violation of an underlying order of protection.
The wife argues that this finding, together with the husband’s purposeful lack of obtaining a green card on the wife’s behalf while securing a green card for himself and the wife’s daughter, would warrant this court entering a finding of egregious conduct.
The husband testified that he and his wife are in good health however the wife asserts that her health is poor. She is seven (7) years older than her husband and claims she suffers with constant headaches, memory loss and is fearful of leaving her apartment alone; all of which she believes are a result of the domestic violence she endured. A Queens Sex Crimes Lawyer said the wife does not refute the claim the husband is in good health. The husband argues that the wife’s health claims are specious particularly in light of the fact that she is able to work in a factory and in the wife’s sister’s restaurant.
On 20 June 2002, a Family Court order of child support was issued through the Family Court Child Enforcement Unit, directing the husband to pay $40 each week as and for child support.
On Custody and Visitation:
Upon consent, custody of the parties’ daughter who is ten (10) years of age is awarded to the wife. The parties’ son’s 18th birthday was 31 March 2006, thus, no award of custody or visitation.
It is well settled that the amount and duration of maintenance is committed to the sound discretion of the trial court
In awarding maintenance, “the court must consider the reasonable needs of the recipient spouse and the pre-separation standard of living in the context of the other factors enumerated in Domestic Relations Law, which factors include ” the standard of living of the parties during the marriage, the income and property of the parties, the distribution of marital property, the duration of the marriage, the health of the parties, the present and future earning capacity of both parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance’. One of the purposes of an award of maintenance is to encourage economic independence. A court is not bound by a party’s account of his or her own finances, and where a party’s account is not believable, the court is justified in finding a true or potential income higher than that claimed.
In awarding maintenance herein the court must consider the fact that the husband has caused the wife to be placed in a state where her immigration status is, to say the least, vulnerable, while at the same time protecting his own immigration status, and even that of the wife’s daughter. This, when combined with the credible testimony of the overt physical and verbal domestic violence leads the herein court to believe that the husband intentionally neglected to take the steps necessary to assist the wife in obtaining legal immigration status in this country as a means of exerting power over her.
It is clear that the husband believes that the incidents of domestic violence which have been imposed upon the wife by him are limited. In a somewhat naive view, he believes that by testifying that the acts of domestic violence were far and few between or that the wife’s daughter’s testimony that he was a good provider would obviate the effects of domestic violence upon this woman or minimize the effects of domestic violence on the wife.
It is the court’s impression that the violent behavior exhibited by the husband was often accompanied by his intoxication. The violence has clearly been substantiated by the testimony of the wife and her daughter.
The husband is a United States citizen who is a successful businessman and owner of multiple properties with a source of steady income, juxtaposed to the wife who is an immigrant without legal immigration status, a victim of domestic violence who fears for her health, welfare and safety, with no command of the English language and she has a very limited education. The husband does not assist the wife in obtaining legal immigration status. The court notes that although the husband suggests the wife must not need more money since she does not receive public assistance, it is evident that the wife’s immigration status, at present, prevents her from being a recipient of public assistance and from obtaining employment.
It was clear that the husband’s knowledge and understanding of the English language was far greater than that which he was willing to concede. The trial was the very first time in this litigation process that the husband requested an interpreter. Although, complex words utilized in a trial could warrant him requiring an interpreter, he spoke English quite well, answered questions long before the interpreter would even begin translation and had to be reminded to continue to use the court interpreter if he needed interpreter services.
On the contrary, the wife’s knowledge of the English language was severely limited and understanding pivotal words and their meanings, even in Spanish, was far beyond her capabilities.
It must also be noted that while the husband has been able to integrate into American society and may remain in the United States as a legal citizen, the wife has not been able to adequately integrate. She lacks the skill of understanding or speaking the English language as well as any marketable skills other than the piecemeal factory work which she admits she had done in years past. The wife’s economic prospects for self-sufficiency and entering the mainstream workforce are highly improbable.
Accordingly, the court believes that maintenance should be non-durational. This is necessary based on the length of the parties marriage, their age, the vast difference in their actual income earned and the wife is unequipped to become self-supporting due to her lack of education and inability to speak English. Additionally, although expert testimony was not introduced, the wife testified to severe headaches and memory loss as a result of the multiple beatings the wife endured. The husband is in good health. The wife’s mental state is also a health issue. The prospects of her obtaining significant employment which would allow her to become self-supporting, is limited at best. In awarding maintenance, the court is aware that the wife presently has no medical coverage and is not eligible, at the present time, to receive any medical coverage and, therefore, any cost for medical assistance must be borne solely by the wife. Thus, the court awards $ 125 each week as non-durational maintenance, retroactive to the date of first application. The maintenance is not deductible to the husband given his failure to properly claim his cash income. On the other hand, the court finds it inappropriate to award the husband a tax benefit given his years of thwarting that very system. The arrears are to be paid at a rate of $25 a week.
On Child Support:
Section 240 of the Domestic Relations Law of New York provides guidelines by the Child Support Standards Act (“CSSA”) which must be considered in ascertaining child support.
The court rejects the argument put forth by the husband that the court is bound to accept that which was agreed to by the Child Support Enforcement Team in the Family Court. The Family Court order provides for child support in the amount of $40 a week. Such amount is inadequate to prevent the children from becoming a public charge. Therefore, an upward modification is warranted. Also, given the finding that the court is imputing income to the husband upon the basis of his unreported cash income, the herein court must recalculate child support. The testimony adduced at trial demonstrates the husband’s representations of his assets and income is patently fraudulent. The economic interests of the Department of Social Services as assignee of the benefits are different from an award of child support and maintenance de novo.
Among the factors to be considered in whether there has been a change in circumstances warranting an upward modification of support are the increased needs of the children, the increased cost of living insofar as it results in great expenses for the children, a loss of income or asset by a parent or substantial improvement in the financial condition of a parent and the current or prior lifestyles of the children. While an increase in the noncustodial parent’s income is a factor which may be considered in deciding whether to grant an upward modification of child support this factor alone is not determinative.
Clearly, there is a substantial change of circumstance in that the husband’s earnings reported to the Family Court and his actual earnings determined by this court, after a full trial on the issues of inter alia equitable distribution and maintenance, are substantially incompatible and this court is making an award of maintenance. Since maintenance is deductible from the husband’s gross income for the purposes of child support, this court must recalculate the child support obligation. The discovery of this income and assets during this divorce action and not revealed in the Family Court is a basis to recalculate the husband’s child support obligation.
On Equitable Distribution:
In recognizing a marriage as an economic partnership, the Domestic Relations Law mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the trial court to consider a number of statutory factors listed in Domestic Relations Law.
Accordingly, some of the assets owned by the husband were awarded to the wife.
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