MARTIN & COLIN, P.C.

April 30, 2007

 

Honorable Jane DiLorenzo
District Attorney
Westchester County
Richard J. Daronco Westchester County Courthouse
111 Martin Luther King Jr. Blvd.
White Plains NY 10601

 

Re:  People v. Alan Bender
Justice Court, Rye Town

 

Hon. Judge DiLorenzo:

I am the attorney representing the defendant Alan Bender in a criminal prosecution currently pending before the Hon. John Colangelo in the Justice Court, Town of Rye.  The matter is next scheduled for all purposes on Wednesday, May 9, 2007.

The defendant is charged with a crime of driving while intoxicated for having a .16 blood alcohol content as measured by an intoxilizer instrument administered by the Rye Brook Police Department.  The purpose of this letter is to demonstrate to you that the best interests of the people of Westchester County, the community which you so honorably protect and defend as its top law enforcement official, would be best served by offering this individual defendant a reduced plea offer to the lesser offense of Driving While Ability Impaired in full satisfaction of the current misdemeanor charge of Driving While Intoxicated.

The truest administration of justice in its finest form requires the considerations of compassion and kindness and necessitates the application of mercy.  The People of this State, by statutory enactment of their state legislature, could have imposed upon you the requirement that you hold as charged every individual accused of the crime of driving while intoxicated for having a .15 % or higher blood alcohol content.  By not doing so, the People of this State expressly vest in you the power and authority to apply considerations of kindness, compassion and leniency to all of your criminal prosecutions, including the prosecution of individuals accused of the crime of driving while intoxicated for having a .15 % or higher blood alcohol content.

Whereas I do know what factors you do not consider in the exercise of your prosecutorial discretion: as stated above, economic privilege, social status, political affiliation and any other form of rank favoritism are all rejected by you; I do not know what factors you do consider in your dispensation of justice.  Obviously, your ultimate obligation as top law enforcement officer is the overall safety and security of the entire community; you carry out that obligation best when you protect those least able to protect and care for themselves.  Similarly, I will bet that you shower the most favor upon those members of the community who have previously given of themselves to those other members of our community who are least able to provide for and care for themselves.  In other words, the community should give back to those who have previously given to it.

Most respectfully, I submit to you that the community which you so honorably serve would be entirely satisfied if you exercised your prosecutorial discretion in favor of the accused, Alan Bender.  Most respectfully, I suggest to you that because Alan Bender volunteered so much of his time, and devoted so much of his talents, to those in our community least able to care for themselves, prior to his involvement in the alleged DWI charge, that our community would rightfully acknowledge his prior good deeds, our community would agree that his prior good deeds outweigh the current misdeed for which he stands accused, and when balancing all of the factors, our community would be well served if you made an exception for Alan Bender and offered him a reduced plea to a DWAI as a thoughtful exercise of your prosecutorial discretion.

An exercise of prosecutorial discretion in favor of Alan Bender would promote volunteerism, encourage community involvement and most importantly, improve the quality of life of some of the most vulnerable members of our society.  Thus, if you were to show mercy to Alan Bender you would be furthering your objective of improving the quality of life of the residents of our community.

Prior to his involvement in the alleged DWI charge, Alan volunteered his time at a local children’s center for many years.  Starting in middle school, Alan has been devoting hundreds of hours per year volunteering his time working with young children at the Children’s Center at Purchase College.  The staff at the Children’s Center has been so grateful to Alan for his many years of volunteer service, and so impressed with his ability, that they recently hired him as an assistant teacher.

Prior to his involvement in the alleged DWI charge, Alan volunteered his evenings at the local soup kitchen.  He spent countless evenings at the AME Zion Church on Smith Street in Port Chester, New York serving meals to the indigent and cleaning up after them.  Under the supervision of Ms. Logan, Alan spent many nights helping out the least fortunate of his community.

In recognition of his many hours of volunteer service to his community, in November 2000 Alan Bender was awarded a Certificate of Merit from the Westchester County Youth Board and the Westchester County Board of Legislators.  In making this request for a special exception and a reduced plea for Alan, I suggest to you that the citizens you serve and protect would select Alan for special treatment because in the last ten years he has given so much to them.

Finally, Alan Bender recognizes that he is not worthy of any leniency from his community or from the District Attorney if there is any possibility of the situation ever happening again.  There are no conditions on Alan’s ROR status.  He was not referred to TASC or anywhere else.  Nevertheless, Alan immediately and voluntarily enrolled himself into an OASAS-approved Outpatient Chemical Dependency Treatment Program.  He attends and participates in the program, and will continue to do so, until successful completion.  He entered the program voluntarily to evaluate himself for any underlying problem and also to assure you that there is absolutely no chance that the situation that Alan Bender placed himself in will ever happen again.

Thank you so very much for taking an office full of excellent prosecutors and transforming it into an ethical instrument of justice, honorable and even-handed.  A rising tide does indeed lift all boats, and your leadership has raised the bar throughout the County.  I thank you, in advance, for your consideration of our application for leniency and a reduced plea, and assure you that I would not make this request if there was any chance that granting my request would be inconsistent with the high standards you have set for yourself and your office.  Rather, I believe that if you grant my request, and thereby give clemency to the person who volunteered countless hours to his community, you are using your prosecutorial powers for community improvement, promoting the noble endeavor of civic duty, and encouraging acts of charity and kindness toward our neighbors.

Once again, I thank you for your consideration of my request.  If you have any questions or concerns, please contact me.

 

Sincerely,

 

MARTIN & COLIN, P.C.
WILLIAM MARTIN

WM/cb
Enclosures
cc:  Alan Bender

NEW YORK STATE SUPREME COURT
APPELLATE DIVISION:  SECOND DEPARTMENT
—————————————

DONATO CALDERON,

Plaintiff-Appellant,

-against- APP. DIV. NO. 2008-09380
LIZA CALDERON,

Defendant-Respondent.

—————————————

BRIEF FOR PLAINTIFF-APPELLANT

DONATO CALDERON

MARTIN & COLIN, P.C. Attorneys for Plaintiff-Appellant

Office and Post Office Address: 44 Church Street White Plains, New York 10601 (914) 771-7711

—————————————
NEW YORK STATE SUPREME COURT
APPELLATE DIVISION:  SECOND DEPARTMENT
—————————————

DONATO CALDERON,

Plaintiff-Appellant,

-against- APP. DIV. NO.
2008-09380
LIZA CALDERON,

Defendant-Respondent.

—————————————

BRIEF FOR PLAINTIFF-APPELLANT

DONATO CALDERON

TABLE OF CONTENTS

Page

PRELIMINARY STATEMENT  1

QUESTIONS PRESENTED  2

STATEMENT OF FACTS  6

ARGUMENT

POINT I

ON RE-TRIAL, THE COURT BELOW REWARDED
THE WIFE FOR HER PATTERN OF NON-COMPLIANCE

WITH COURT ORDERS 16

POINT II

THE TRIAL COURT ERRED WHEN IT AWARDED

MORE THAN HALF THE MARITAL ESTATE TO THE WIFE 22

POINT III

THE TRIAL COURT ERRED WHEN IT AWARDED

CHILD SUPPORT ARREARS AND SET CHILD SUPPORT

GOING FORWARD BY IMPUTING AN INCOME

EARNED BY THE HUSBAND 17 YEARS EARLIER 25

CONCLUSION 28

CERTIFICATE OF COMPLIANCE 29

—————————————
NEW YORK STATE SUPREME COURT
APPELLATE DIVISION:  SECOND DEPARTMENT
—————————————

DONATO CALDERON,

Plaintiff-Appellant,

-against- APP. DIV. NO.
2008-09380
LIZA CALDERON,

Defendant-Respondent.

—————————————

BRIEF FOR PLAINTIFF-APPELLANT

DONATO CALDERON

PRELIMINARY STATEMENT

In June 2005, at the end of a twenty-one year marriage, the Supreme Court, Westchester County (Tolbert, J.): equitably and evenly divided the assets and debts of the parties, and ordered the plaintiff/ husband to pay reasonable child support (A21-38).#  Subsequently, this Court ordered a re-trial of the issues of equitable distribution and child support (A15-16).  Following re-trial, the Supreme Court awarded almost the entire marital estate to the defendant/ ex-wife and ordered the plaintiff/ ex-husband to pay a draconian, punitive child support (A8-A14).  This Brief is respectfully submitted on behalf of the plaintiff/ ex-husband Donato Calderon to: 1) reverse the decision and order of the Supreme Court, Westchester County (Tolbert, J.) dated September 17, 2008; and 2) remit the matter to the Supreme Court, Westchester County for an equitable distribution of the parties’ assets and debts, and for an order of reasonable child support (A8-14).
The plaintiff/ ex-husband’s Notice of Appeal is dated October 10, 2008 and was served on October 11, 2008 (A3).

QUESTIONS PRESENTED

1.  Whether the Court below erred and abused its discretion in denying the husband any interest whatsoever in the wife’s pension accrued during their 21 year marriage?
The Court below erred and abused its discretion in awarding the wife the entire pension, even though the children lived with their father for more than twelve years, and even though the husband and wife maintained a true economic partnership throughout the entire 21 year marriage.
2.  Whether the Court below erred and abused its discretion in ordering the husband to pay an exceedingly harsh child support award?
The Court below erred and abused its discretion when, in 2008, it ordered the husband to pay child support based upon his annual income earned as an Allstate agent in 1991 even though he had lost his insurance license that same year and had not made anywhere near that amount of money at any time ever since.
3.  Whether the Court below erred and abused its discretion in imputing the income to the husband that he used to earn when he ran an insurance business (seventeen years earlier), but did not impute any income from that very same insurance business to the wife, even though the testimony was undisputed that since 1991 the wife has been (and continues to be) the sole owner and operator of the very same insurance business?
The Court below erred and abused its discretion when it imputed income to the husband based upon his annual income earned as an Allstate agent seventeen years earlier even though a 1991 felony conviction precludes him from ever again having an insurance license (A240), especially where the Court below did not impute income to the wife even though she has been and continues to be the sole owner and operator of the very same insurance business.
4.  Whether the Court below erred and abused its discretion when, although it precluded the wife from offering evidence at trial based upon her failure to comply with prior discovery orders, it refused to draw an inference favorable to the husband?
During the re-trial, the husband told the court that during the first ten years of the marriage, he started an insurance business and built it up to the point that, in 1991, he earned $108,000.00.  The husband also testified that when he left for prison in 1991 he turned the insurance business over to the wife, who has been successfully operating it ever since.  When the wife took the stand, she did not discuss the insurance business at all, because she had been precluded from doing so based on her failure to comply with court orders of discovery.  In its decision, the trial court did not draw an inference against the wife based upon her failure to disclose the current financial status of the insurance business, and thereby rewarded her disobedience to prior court orders.  Instead of drawing an inference against the wife, the trial court imputed $108,000 in income (from the insurance business) to the husband but imputed no income (from the insurance business) to the wife.  Thus, the wife actually benefitted from her non-compliance with discovery orders.  This failure to draw an inference in favor of the husband was clear error and corrupted both the trial court’s equitable distribution award as well as the trial court’s calculation of child support.
5.  Whether the Court below erred and abused its discretion when it gave the husband no credit for his significant contributions to the family during the last ten years of the marriage (from 1991 to 2001) and when it gave the husband no credit for paying the mortgage (A242) and otherwise preserving marital assets for equitable distribution from the filing of the action for divorce in 2001 until the trial court’s decision on re-trial in 2008?
Upon the husband’s release from prison in 1996, the husband had custody of the children in Florida for several years, while at the same time the wife kept all the rental income from the second floor apartment in the marital residence and kept all the income from the insurance business.  Nonetheless, the trial court gave the husband no credit for any of these contributions.  Later on, from the issuance of the judgment of divorce in 2005 until today, the wife continued to occupy the marital residence without paying one cent toward the mortgage and continued to keep all the proceeds from the insurance business.  Yet, the trial court gave the husband no credit for carrying the mortgage on the marital residence from 2005 until the present, even for most of that time he was not living in the marital residence, the wife was, and even though she was keeping all the income from the insurance business.  This constitutes clear error and abuse of discretion.

STATEMENT OF FACTS

History of the Marriage

On January 24, 1980, the plaintiff Donato Calderon married the defendant Liza Calderon (A58).  When the parties were first married they lived in a rental apartment in Yonkers (A60). Approximately three years later, the parties purchased the marital residence at 55 South High Street, Mount Vernon, New York, where the parties lived throughout the marriage and continue to live in today (A61).

In order to purchase this house, for which the parties paid ninety-six thousand ($96,000.00) dollars, the husband Donato borrowed twenty-thousand ($20,000.00) dollars from his mother and the parties took a mortgage for the remaining seventy-six thousand ($76,000.00) dollars (A65).

In 1988, the parties purchased a home in the Dominican Republic (A62).  The husband Donato used money earned through his employment as an insurance agent with Allstate to purchase the property in the Dominican Republic (A62).  The property was purchased from Donato’s mother for twenty-six thousand ($26,000.00) dollars (A62).

The parties had married in 1980 (A58).  In 1983, the wife, Liza Calderon, began full time employment with the County of Westchester that continues to the present (A114-115; A288-290).  It is permanent, civil service employment that pays her approximately $37,000.00 per year and accrues a pension (A290).

When the parties were first married, the husband Donato was employed by Sears as a battery technician and was attending school (A69).  After about five years, Donato obtained his insurance license and began his career selling insurance, first with John Hancock, and then with Allstate (A70).  After working for three years with Allstate, he was given his own agency in Port Chester, selling Allstate products (A72).

The bilingual Donato built a successful insurance business amidst the large Latin-American population in Port Chester (A74).  So successful, that Donato expanded beyond Allstate Insurance products and offered insurance products from other companies as well (A74-75).  While Donato ran the Port Chester agency from 1983 through 1991 it became very profitable and flourished (A75).  However, all this came to an end for Donato in 1991, when he was sent to federal prison (A75-76).  Rather than close a terrific money-making business, Donato looked to find another person to take over his highly profitable agency, and left it in his wife’s capable hands (A76).  Thus, since 1983, the wife Liza Calderon has been employed full time as a bookkeeper for Westchester County and since 1991, in addition to her job as a bookkeeper, she also owns and operates the insurance business (A116, A290, A351).

While the husband Donato ran the insurance agency, between 1983 and 1991, his income rose steadily.  With some help refreshing his recollection by means of social security records (A78, A137-38), Donato testified that his income from the insurance business rose steadily:

• 1983 $  5,000.00

• 1984 $ 15,000.00

• 1985 $ 26,000.00

• 1986 $ 45,000.00

• 1987 $ 68,000.00

• 1988 $ 70,000.00

• continued increases until

• 1991 $108,000.00

(A79).  The plaintiff Donato also testified that he made additional, unreported cash in the business by writing assigned risk automobile policies and charging additional fees for processing documents through the department of motor vehicles (i.e., “motor vehicle service”) (A79-81).

Indeed, he had successfully expanded the business and Donato was making just as much money brokering assigned risk business as he was writing Allstate policies (A81).  Thus, due to Donato’s business skill and years of hard work, in 1991 he turned over to Liza Calderon a highly profitable insurance business (A81).  Despite the fact that a term in federal prison was going to require the husband Donato to be absent from the family for a while (A81-82), he managed to continue to provide for his family by leaving them a viable, successful, money-generating asset, capable of providing for their financial needs, that his wife continues to operate to the present day (A152, A351).  Thus, though the physical partnership between Donato and Liza essentially ended in 1991, their economic partnership (in which the wife kept all the income) continues to the present day (A121).

In 1991, Donato went to trial in federal court on several cocaine distribution felony charges (A226).  He was aquitted of all charges, except the conspiracy charge (A262), and was sentenced to 63 months in prison (A226).  Later on, in 1994 or 1995, Donato returned to a federal camp for four additional months rather than finish probation (A238).  Thus, during approximately 1992 – 1995, Donato was incarcerated in the federal prison system.  However, prior to beginning his prison sentence, in 1992, Donato cashed out his pension / annuity with Allstate and received approximately $58,000.00 (A233-35).

Not only did Donato leave his wife the profitable insurance business that she continues to operate today (A151-52, A351), but prior to his prison term, Donato also took additional steps to ensure that he would continue to provide for his wife and children even while incarcerated.  In 1991, $30,000.00 was spent converting the second floor of the marital residence at 55 South High Street in Mount Vernon, New York into a rental apartment (A83-85).  The second floor apartment has been rented out almost continuously by Liza Calderon from 1991 through early 2008 (A84-86, A152).  Thus, once again, even though the physical partnership between Donato and Liza may have ended in 1991, their economic partnership (in which the wife kept all the income) continues to the present day.

Not only did Donato leave behind a rental apartment and a profitable insurance business, but before Donato left for prison, he made other arrangements to insure the welfare of Liza and his children.  He spent fifteen thousand ($15,000.00) dollars to and purchased two new vehicles for his wife, one of which was a Pathfinder, and left another fifteen thousand ($15,000.00) dollars in the business checking account (A119-20).

Liza only visited Donato in prison a couple of times (A121).  Despite the fact that she had agreed to advise him how the insurance agency was doing and what monies she was depositing, she never did (A121).  After Donato went to prison, he never saw another dime from his successful insurance business (A121).

While Donato was in prison, Liza had control of the profitable insurance business, was still employed full time by Westchester County, enjoyed rent from the second renovated apartment at the marital residence, and appeared to have a new man in her life (A123).

After Donato was paroled out of prison, Liza sent their two sons, Donato and Gilbert, to live with him in Florida, which they did for approximately two years (A125).  In or about year 2000, when the husband Donato finally came back to New York, he was forced initially to stay at the YMCA (A125-26).  After about five months, the wife consented to his return to the marital residence (A126-27).  However after about six months at home, the wife kicked Donato out of the marital residence and he was forced to file for divorce (A127).

Donato was forbidden by his wife from returning to the business that he worked so hard to develop and that had helped support his family while he was gone.  In 2001, when he did try to return to the office, lasting about one month (A129), the wife humiliated him and did not even permit him to sit at his old desk (A128).  By this time, the wife had expanded the business so that now it included selling multiple lines of insurance, including Travelers, and also included non-insurance services, including an income tax preparation service (A130).

During this last year of the marriage (i.e., 2000-01), after Donato had returned from Florida, and while the parties tried reconciling for the last time, Donato was a salesman for a company named “In Person Payments” and earned approximately $36,000 per year (A127-28, A241).

Procedural History

In January, 2001, the husband commenced an action for divorce (A40-44).  The wife filed an Answer on or about May 3, 2001, counterclaiming for divorce (A46-51).  The parties were divorced on January 31, 2005 (A21-29).

There are three children of the marriage, Gilbert Calderon, Donato Calderon and Angelina Calderon (A31).  But the issues in this case only involve the youngest child who, at the time of the second trial, was nineteen years old (A22).

The defendant Liza Calderon was precluded from offering any testimony by order dated October 20, 2004 (A22) based on her failure to comply with discovery orders (A39).  Thus, the matter was initially scheduled for inquest on the issue of equitable distribution (A22).  The first trial was held on January 18, 2005 (A22).  At the conclusion of that trial, this Court determined that a 50/50 split of the marital assets was fair, equitable and appropriate.  The defendant wife Liza Calderon appealed the judgment.

On December 26, 2006, this Court remitted the action and ordered a re-trial on the issues of child support and equitable distribution.  The Supreme Court (Tolbert, J.) conducted a re-trial of the issues of Equitable Distribution and child support on May 29 and May 30, 2008 (A54-305).

Decision and Order After Re-Trial

At the end of the first trial between these parties, in 2005, the Supreme Court (Tolbert, J.) determined that a 50/50 split of the marital assets was fair, equitable and appropriate.  There were four assets to be divided:

• Marital Residence at 55 High Street, Mt. Vernon, NY
• Parties’house in Santo Domingo, Dominican Republic
• The Calderon Insurance Company in Port Chester, NY
• The NYS Retirement System Pension from wife’s employment as a bookkeeper for Westchester County.

After the first trial, the court distributed the assets as follows:  The marital residence and second home to the husband Donato Calderon, the business to the wife Liza Calderon, and the pension to be divided to the extent that the husband was to receive a Majauskas share (A28).
However, on re-trial in 2008, the Supreme Court divided the same four marital assets as follows:  The marital residence and second home to be sold and the proceeds evenly divided, the business to be sold and the proceeds evenly divided, and the wife to receive 100% of the pension (A10).
As to child support, at the end of the first trial in 2005, the Supreme Court determined that: the wife earned $50,000.00, the husband earned $26,000.00, that the husband’s child support obligation was $338.13 per month, and that the husband owed zero in child support arrears.
As to child support, at the end of the re-trial in 2008, the Supreme Court:  imputed $85,000.00 per year in income to the husband, based upon the husband’s peak earning year in 1991 (seventeen years earlier!) of $108,000.00, determined that the wife earned $27,418.00, determined that the husband’s child support obligation was $1,204.17 per month, and determined that the husband owed $119,704.00 in child support arrears (ignoring the undisputed facts that throughout this time, the wife had exclusive use of the marital residence while the husband was paying the mortgage, the wife was collecting all rental income from the second floor rental apartment in the marital residence, and the wife was collecting every cent from the parties’ insurance business!).
The order appealed from, i.e., the decision and order after retrial, was filed on September 17, 2008 (A8).  The plaintiff Donato Calderon filed his notice of appeal on October 11, 2008 (A3).

ARGUMENT

POINT I

On Re-Trial, the Court Below Rewarded the Wife
For Her Pattern of Non-Compliance with Court Orders

The plaintiff husband urges this Court to reverse the decision and order after re-trial because the court below rewarded the defendant wife for her repeated disobedience to court orders.

On March 30, 2004, the Supreme Court, Westchester County (Dillon, J.) issued an order appointing a neutral Court-appointed expert accountant/evaluator to place a value on the parties’ business (A39).  Justice Dillon’s order appointing the expert required both parties to pay an up-front retainer to the expert within ten days of the date of the order (A39).  On October 20, 2004, the Supreme Court, Westchester County (Dillon, J.) issued the following order:

10/24/04  Ms. Calderon shall transmit the retainer agreement in executed form and her share of the retainer fee within 10 days, or she is precluded from introducing evidence on equitable distribution at trial.  CPLR 3126.  She shall also comply with the document schedule set forth in the Order of Appointment.  So Ordered.  Mark C. Dillon, JSC  (A39)

The plaintiff wife refused to comply with the pre-trial orders of the court below.  As a result, the wife was precluded from offering any testimony and the matter proceeded in 2005 as an inquest (A22).

Subsequently, in 2006, the wife refused to comply with the provisions of the trial court’s judgment of divorce and the husband was required to return to the Supreme Court (Giacomo, J.) by Order to Show Cause to compel the wife to comply, and to compel the wife to quit- claim the former marital premises to the husband (A17-20).  In the lower court’s decision filed in 2006, the trial court noted that the wife only executed the documents following the Court’s bench directive at the hearing (A18).

Preclusion orders are not readily granted, as courts are generally reluctant to sever a party’s rights to prosecute their claims.  It was only after repeated warnings from the trial court and the wife’s repeated contumacious, willful disregard for the Court’s warnings that the preclusion order was entered.

Moreover, the wife’s conduct begs the question:  why was she so firmly against conducting an appraisal of the business?  The wife obstructed the forensic evaluation to such an extent that by the start of trial she was precluded from introducing any evidence on equitable distribution. She was adamant in her refusal to provide any disclosure with respect to the business.  The complete and total refusal to provide any disclosure whatsoever suggests that the wife did not want the true value of the business revealed.  Especially where, as here, she did pay her share of an appraisal of the marital residence.

However, on re-trial in 2008, the trial court completely ignored (or forgot about) the preclusion order and as a result, the wife profited immensely from her wrongdoing.

A preclusion order does not merely prohibit the introduction of evidence.

C.P.L.R. § 3126 and existing case law hold that a party should be precluded from offering documents at trial that he failed to produce during discovery pursuant to a Court Order. In addition, an inference favorable to the Plaintiff shall be drawn with respect to all financial issues if a party has failed to produce the requisite documents in a timely manner.

(Sherril R.D. v. Alfred B.D., 8 Misc3d 1015, 801 NYS2d 781 [Sup. Ct., Queens Cty. 2005] [emphasis added]).  In addition to precluding evidence, in order to do justice, a preclusion order also required the trial court to draw an inference that the wife herein did not produce the financial records regarding the insurance brokerage business because it was not in her financial interest to do so.

Thus, the trial court should have drawn the inference that the wife’s refusal to cooperate with any disclosure that would permit a valuation of the parties’ insurance business was intended to conceal or suppress the true value of the asset from the husband and the court, and that the true value of the business was higher than the value placed on the business with without those documents.

The significant disparity between the trial court’s distribution of marital assets at the end of the first trial, and the entirely unjust distribution of marital assets at the end of the second trial results from the trial court’s failure to penalize the wife for her willful disregard of Judge Dillon’s order of preclusion.  From the beginning, the husband has always contended that the parties’ insurance business, from which he earned an income of $108,000.00 in 1991 and turned over to the wife in 1992, has generated substantial sums of money to the wife from 1992 to the present.  The wife refused to provide any financial documentation whatsoever regarding this business. The husband obtained an order of preclusion.  But on re-trial, the court below did not draw the inference that the wife refused to comply with court orders because it was not in her financial interest to do.  As a result, the trial court essentially rewarded the wife:

• by not counting the income to the wife generated by the parties’ insurance business when the court below concluded: “from the time of Plaintiff’s incarceration (1991) through commencement of the instant action, (2001) Plaintiff made minimal, if any financial contributions” (A9);
• by not counting the income to the wife generated by the parties’ insurance business when the court below concluded: “Given the minimal financial support given to Defendant by Plaintiff during the approximately 13 year period he was away and she was growing her pension…” (A9);
• by not counting the income to the wife generated by the parties’ insurance business when the court below concluded: “It is undisputed, that during his incarceration and residence in Florida, he contributed little to the upkeep of the house” (A10)
• by not counting the income to the wife generated by the parties’ insurance business when calculating child support, but counting business income of $108,000.00 to husband even though he had lost his license to run an insurance business in 1991, seventeen years earler (A11);
• not only did the trial court impute business income from an insurance business to a husband who no longer has an insurance license; but the trial court did not impute business income from the parties’ insurance business to the wife who does have a license and does have the business;
• by attributing the insurance business’ IRS debt to the husband, and not the wife, although no evidence in the record supports that conclusion and even though the Court had attributed that IRS debt to the wife at the first trial (A10, A37).

The conclusions drawn by the trial court after the re-trial are not supported by the facts or the law. In fact, the conclusions are contrary to established law and result from the trial court’s failure to draw an inference unfavorable to the wife for her failure to comply with lawful court orders.  Stated differently, the trial court rewarded the wife for her contumacious behavior, resulting in a substantial injustice to the husband.

POINT II

The Trial Court Erred When It Awarded
More than Half of the Marital Estate to the Wife

It is well settled law in New York that, in a long term marriage where both parties made significant contributions to the marriage, an approximately equal distribution of the marital estate is generally warranted (see, e.g., Chalif v. Chalif, 298 AD2d 348, 751 NYS2d 197 [2d Dept. 2002]; Fuegel v. Fuegel, 271 AD2d 404, 705 NYS2d 400 [2d Dept. 2000]).  In fact, after a long term marriage, New York’s equitable distribution law requires trial courts to divide the marital property in half unless there is a compelling reason, such as financial wrongdoing or domestic violence, not to do so.
Nonetheless, without offering an explanation for doing so, and without any support in the record, this Court issued a decision and order that is entirely lopsided and eminently unfair.

The parties were married in 1980.  In 1983, the wife began earning a pension with the New York State Employees Retirement System as a full time employee of the County of Westchester, a full time position she has held continuously to the present.  The husband was not incarcerated until after his conviction in 1991.  Thus, at an absolute minimum, the husband should have received one half of the pension accrued from 1983 until 1991.  Yet, on re-trial the court below awarded the husband none of the pension.

However, as in the first trial, the husband should have been awarded his Majauskas share of the pension from the date of commencement of the wife’s employment in 1983 until he filed for divorce in 2001, because the evidence is undisputed that the parties continued their economic partnership throughout the entire marriage (and even well past 2001).  Although not acknowledged by the trial court in its decision after re-trial, the evidence is undisputed that from 1991 until 2001 the parties’ economic partnership continued in that: the wife had exclusive use of the marital home, the wife had full benefit of the parties’ insurance business, and the wife had full benefit of the rental income from the second floor apartment in the marital residence.

In sum, the conclusions drawn by the trial court after the re-trial are not supported by the facts, in that the parties’ economic partnership continued throughout the marriage, therefore there should have been an equal division of the marital estate.  In addition, the conclusions drawn by the trial court are not supported by the law, as the law requires an even split, after a long term marriage, absent compelling circumstances.  The trial court appears to have concluded that the plaintiff’s four year incarceration was a compelling circumstance.  However, because the wife received all the financial benefit from the parties’ entire marital estate from 1991 through 2001, the economic partnership continued throughout the entire marriage.  Therefore, the trial court erred by not dividing the marital estate evenly.

The decision and order appealed from should be reversed, and the marital estate should be divided evenly, in the same manner as it was divided at the end of the first trial in 2005.

POINT III

The Trial Court Erred When It Awarded
Child Support Arrears and Set Child Support
Going Forward By Imputing an Income Earned 17 Years Earlier

Since 1991, the wife has enjoyed the fruits of the insurance brokerage and tax return business started originally by the husband, which, has continued to grow from year to year.  Additionally, the wife has continued to be employed fulltime by Westchester County, from which she will also derive a pension with the New York State Employees’ Retirement System.  Moreover, at the trial, it was undisputed that the husband paid the mortgage on the marital residence that the wife occupied (A156-57), even though the wife received all income from the second floor rental apartment.  In addition, the husband brought in proof that he had borrowed money from family and friends to take the marital residence out of foreclosure, although this Court did not give him credit for doing so (A164-71).

Notwithstanding all this financial support to the household, on re-trial, the trial court determined that the plaintiff paid no child support and owed the wife $119,704.00 in child support arrears.  This determination is without any factual support in the record and must be reversed.

In addition, after re-trial, the court imputed income to the plaintiff of $80,000.00 per year based in part on testimony that he earned $108,000.00 in 1991, seventeen years earlier, although he earned that income with a NY State insurance license that the plaintiff lost upon his felony conviction in 1991.  This conclusion is in error as the undiputed testimony was that, since his release from prison in 1996, the plaintiff has almost always worked with ATM machines making approximately $36,000 per year (A127-28, A241).

The trial court’s unfair, unjust and erroneous determination of child support going forward and the trial court’s award of a money judgment for child support arrears are not supported by the record and should be reversed.

The trial court committed other errors resulting in substantial prejudice to the defendant.

In its decision after re-trial, the court below penalized the husband: “Plaintiff did not submit an updated net worth statement” (A11) although the husband did submit an updated net worth statement (A306-22).

Also in its decision after re-trial, the court below penalized and attributed fault to the husband: “It is undisputed that Plaintiff liquidated his annuity of about $58,000.00 in 1991.  Where that money went is unclear and unproven” (A9).  In fact, the annuity funds were disbursed in the middle of a long term marriage, which on its face is proper, and in addition the annuity distribution was explained at the trial, and the explanation was unrefuted: the husband bought two new cars for his family, left $15,000.00 in the checking account, and remodeled the second floor in the marital residence to make it into a rental unit.

For all of the above reasons, the decision and order after retrial, filed September 17, 2008, must be vacated and a new order issued consistent with the Court’s findings at the conclusion of the first trial.

CONCLUSION

Accordingly, for the reasons set forth above, the decision and order entered September 17, 2008 should be reversed in all respects.
Dated:  White Plains, New York
April 9, 2009

Respectfully submitted,
MARTIN & COLIN, P.C.
Attorneys for Plaintiff-Appellant

____________________________
William Martin
Office and Post Office Address:
44 Church Street
White Plains, New York 10601
(914) 771-7711

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NEW YORK STATE SUPREME COURT
APPELLATE DIVISION:  SECOND DEPARTMENT
—————————————
DONATO CALDERON,
CERTIFICATE
Plaintiff-Appellant,  OF COMPLIANCE

-against- APP. DIV. NO.
2008-09380
LIZA CALDERON,

Defendant-Respondent.
—————————————

WILLIAM MARTIN, an attorney duly licensed to practice before the Courts of the State of New York does hereby affirm under penalty of perjury:

1. The within Brief of Plaintiff-Respondent was prepared on a computer.
2. The typeface is Courier New.
3. The point size is 12 point type for the text and 10 point type for the footnotes.
4. The margins are one inch on all sides.
5. The line spacing is double space.
6. The word count as calculated by the word processing system is 5,341 words.

Dated: White Plains, New York
April 9, 2009

________

WILLIAM MARTIN