Westbrook v. Westbrook

212 A.D.3d 1014

182 N.Y.S.3d 334

Sean WESTBROOK, Plaintiff,

v.Samantha WESTBROOK, Appellant.

534262

Supreme Court, Appellate Division, Third Department, New York.

Calendar Date: December 14, 2022

Decided and Entered: January 19, 2023

Whiteman Osterman & Hanna LLP, Albany (Anna V. Pinchuk of counsel), for appellant.

Before: Egan Jr., J.P., Clark, Pritzker, Fisher and McShan, JJ.

MEMORANDUM AND ORDER

Pritzker, J. Appeal from a judgment of the Supreme Court (Paul Pelagalli, J.), entered August 30, 2021 in Saratoga County, ordering, among other things, equitable distribution of the parties’ marital property, upon a decision of the court.

Plaintiff (hereinafter the husband) and defendant (hereinafter the wife) were married in April 2010 and have three minor children. In August 2020, the husband commenced this action for divorce, asserting as the grounds for divorce that the parties’ relationship had been irretrievably broken for at least six months. The wife thereafter filed her answer and counterclaims, alleging separate grounds for divorce. At trial, both parties proceeded in a self-represented capacity. At the start of the trial, Supreme Court found that the marriage was irretrievably broken for at least six months prior to the commencement of the action and the trial proceeded on the issue of equitable distribution. The wife thereafter sought to admit 502 pages of evidence that had not been submitted as individual exhibits and where no foundation had been laid. Supreme Court scheduled a second trial date for the purpose of addressing this evidence. The day before this second trial date, the wife's newly retained counsel requested an adjournment, which was denied. The wife declined to proceed without counsel, at which time the court closed the proof and allowed the wife to move to reopen testimony within 30 days after having time to consult counsel; however, the wife did not so move.

Thereafter, Supreme Court issued findings of facts and conclusions of law. As relevant here, the court ordered the husband to pay maintenance to the wife in the amount of $150 per week for three years and six months. As to the marital residence, Supreme Court ordered that the husband continue to pay the mortgage until 30 days after the judgment of divorce, at which time either party could buy out the other's interest for $7,500 or the house was to be sold. The court did not distribute the husband's 401(k) account due to a lack of proof regarding the account's accrual. Additionally, the husband was to retain and be responsible for a Dodge Ram 1500, and the wife would retain possession and be responsible for maintaining a Jeep Grand Cherokee. Supreme Court ordered that each party also be responsible for all debts solely in his or her name. Lastly, the court determined that neither party was entitled to an award of counsel fees.

A judgment of divorce was thereafter entered. The wife appeals.¹

Prior to reaching the merits, we address the wife's allegation that Supreme Court erred in not adjourning the second trial date to give the wife the opportunity to confer with her retained counsel. "The determination as to whether to grant an adjournment is addressed to the sound discretion of the trial court, and its determination will not be disturbed absent a clear abuse of that discretion" ( Matter of Braswell v. Braswell, 80 A.D.3d 827, 829, 914 N.Y.S.2d 749 [3d Dept. 2011] [citations omitted]). Here, when the parties appeared for the second day of trial, the court stated that it had received a letter, only the day prior, from an attorney requesting an adjournment on the wife's behalf.² Notably, over two months had elapsed since the first day of trial and, at this point, the husband had already closed his proof and the wife's testimony was mostly complete. Supreme Court acknowledged that adjourning at this point would prejudice the husband, especially given that the next date available for trial would not be for many weeks. The principal court attorney for the court also stated that the parties were urged to get counsel at every conference during the proceedings. Moreover, the court informed the wife that it was giving her attorney 30 days to file a motion to reopen the proof. Such motion was never filed. Given these facts, we find that Supreme Court did not abuse its discretion in denying the wife's request to adjourn to consult newly retained counsel (see Dench–Layton v. Dench–Layton, 151 A.D.3d 1199, 1200, 56 N.Y.S.3d 598 [3d Dept. 2017] ; Matter of Braswell v. Braswell, 80 A.D.3d at 829, 914 N.Y.S.2d 749 ).

Nor do we agree with the wife that she was deprived of a fair trial because Supreme Court did not allow her to admit her 502 pages of evidence. "The trial court has broad authority to control the courtroom, rule on the admission of evidence, elicit and clarify testimony, expedite the proceedings and to admonish counsel and witnesses when necessary" ( Grimaldi v. Sangi, 177 A.D.3d 1208, 1212, 113 N.Y.S.3d 771 [3d Dept. 2019] [internal quotation marks and citations omitted], lv denied 37 N.Y.3d 907, 2021 WL 4163887 [2021] ; see Matter of Andreija N. [Michael N.–Tiffany O.], 206 A.D.3d 1081, 1084, 169 N.Y.S.3d 408 [3d Dept. 2022] ). Here, on the first day of trial, when asked if she had submitted any exhibits, the wife informed the court that she had sent a large file containing pictures and videos. The court clarified that it could not just accept her proffer and that each piece of evidence would need to be broken down into exhibits and that a foundation would need to be laid for each one. The court then stated that, given the volume of the evidence submitted, it would need to come back another day to address the documents. When the parties arrived for the second trial date, after the court denied the wife's aforementioned adjournment request, the wife refused to continue testifying, stating that she was not prepared to move forward without an attorney present.

The court decided that the best course of action was to close proof and give the wife's attorney an opportunity to move to reopen the proof, but no such motion was filed.

Significantly, the wife mischaracterizes the action of Supreme Court as a failure to admit the evidence when the court was prepared to address the exhibits at the second trial date. However, it was the wife's desire not to continue without an attorney that precluded the court from accepting these documents into evidence. That the wife chose not to avail herself of the opportunity to have the proof reopened does not constitute an abuse of discretion. As such, Supreme Court did not deprive the wife of her right to a fair trial, especially given that "[c]ourts are obligated to keep the respective parties focused upon a succinct presentation of evidence relevant to the issues to be decided and to insure an orderly and expeditious trial" ( London v. London, 21 A.D.3d 602, 602, 799 N.Y.S.2d 646 [3d Dept. 2005] [internal quotation marks, brackets, ellipsis and citation omitted]; see Matter of Yeager v. Yeager, 110 A.D.3d 1207, 1211, 973 N.Y.S.2d 381 [3d Dept. 2013] ).

We turn now to the wife's contention that Supreme Court erred in failing to consider the extent, duration and impact of abuse by the husband when rendering the award of maintenance. "In any matrimonial action, the court, upon application by a party, shall make its award for post-divorce maintenance pursuant to the guidelines set forth in [ Domestic Relations Law § 236(B)(6) ]. The court shall order the post-divorce maintenance obligation up to the income cap in accordance with the statutory formula, unless the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate, which finding shall be based upon consideration of any one or more of the specifically enumerated factors set forth in the statute" ( Harris v. Schreibman, 200 A.D.3d 1117, 1120, 160 N.Y.S.3d 349 [3d Dept. 2021] [internal quotation marks, brackets and citations omitted]; accord King v. King, 202 A.D.3d 1383, 1384, 164 N.Y.S.3d 272 [3d Dept. 2022] ). "The amount and duration of a maintenance award, if any, are a matter within the sound discretion of Supreme Court, and the award will not be disturbed so long as the statutory factors and the parties’ predivorce standard of living were properly considered" ( Hughes v. Hughes, 198 A.D.3d 1170, 1173, 156 N.Y.S.3d 444 [3d Dept. 2021] [internal quotation marks, brackets and citations omitted]; see King v. King, 202 A.D.3d at 1384, 164 N.Y.S.3d 272 ). "Although the court need not articulate every factor it considers, it must provide a reasoned analysis of the factors it ultimately relies upon in determining maintenance" ( King v. King, 202 A.D.3d at 1384, 164 N.Y.S.3d 272 [internal quotation marks, brackets, ellipsis and citations omitted]; see Domestic Relations Law § 236[B][6][e][1] ). Here, the court articulated each factor it considered, including the wife's testimony regarding domestic violence by the husband and that, because he removed the wife's access to their bank accounts, she was unable to pay for childcare or a vehicle.³ Although the wife made references to domestic violence throughout the trial, her testimony detailed only one incident in particular.⁴

Also, while the husband's actions may have impeded the wife's ability to secure employment, we cannot say that Supreme Court's decision not to deviate from the guidelines obligation constitutes an abuse of discretion (see Harris v. Schreibman, 200 A.D.3d at 1121, 160 N.Y.S.3d 349 ).

Now, we turn to the wife's challenges to Supreme Court's equitable distribution of certain marital assets. The court "has substantial discretion to fashion such awards based on the circumstances of each case, and the determination will not be disturbed absent an abuse of discretion or failure to consider the requisite statutory factors" ( Williams v. Williams, 99 A.D.3d 1094, 1096, 952 N.Y.S.2d 662 [3d Dept. 2012] ; see Domestic Relations Law § 236[B][5][d] ). We do not...