Z.U. v. F.U.

2023 NY Slip Op 50090(U)

Z.U., Plaintiff, v. F.U., Defendant.

Index No. 2023-50090

Supreme Court, New York County

February 7, 2023

Unpublished Opinion

Counsel for Defendant Law Offices of Joseph S. Hubicki By Joseph Stanley Hubicki, Esq.

Counsel for Plaintiff Brostowin & Associates, PC111 John Street, By: Terry Brostowin, Esq.

HON ARIEL D. CHESLER, J.S.C.

INTRODUCTION

The duration of this divorce action and post-judgment proceedings is approaching the quarter century mark. But, neither that length of time nor the fact that this is the 50th motion sequence fully captures the Jarndyce-like history that has transpired between these parties and in this courthouse. Like that fictional case imagined by Dickens in "Bleak House," this litigation has seen "processions" of jurists and "great bundles of papers." It too is "so complicated that no [person] alive knows what it means," and the case "still drags its dreary length before the court, perennially hopeless."

Prior jurists who have handled this matter have described it as "long," "tortuous," "convoluted," involving "scores of motions," "endless," and "seemingly interminable." It has been noted that "much of the history involves the bad conduct of the parties, particularly that of defendant, which has created needless problems for the judges and staff of New York County Supreme Court and caused a constant and unconscionable drain on precious judicial resources." Indeed, Justice Saralee Evans (retired) presided over the case until she felt compelled to recuse herself.

This conduct has included that on October 25, 2012, the day on which a prior hearing was scheduled to begin before a Referee, Defendant was arrested for striking "her ex-husband with an open hand across the face while both were seated in the 6th Floor Lobby [at 60 Centre Street] awaiting their court appearance," according to the summons issued to her. This incident, coupled with prior incidents where Defendant had threatened to bring a gun to court, led to a decision by the prior jurist assigned to this matter that all proceedings needed to take place in a judge's courtroom where extra court officers could be assigned.

In prior proceedings before Justice Matthew F. Cooper (retired) Defendant did not deny but instead almost gleefully admitted, that she "forged plaintiff's signature, stole documents from him, and obtained copies of plaintiff's tax returns in violation of this court's directive." Ultimately, such behavior led Judge Cooper to direct that any of Plaintiff's tax returns only be examined by Defendant in the courtroom. Thereafter, as Justice Cooper set forth in a March 1, 2016 order, Plaintiff was to provide only redacted copies of his tax returns, leaving only the gross income reported visible. And, later, such returns were to be provided only to the Court for in camera inspection to prevent further harassing or illegal conduct from Defendant.

Before this Court, Defendant admitted on the record, to calling the CIA and FBI to locate Plaintiff because she did not know where he lived and needed assistance in serving him process in this litigation. This is yet another example of her misuse of Court and law enforcement resources in her quest to harm Plaintiff.

Beyond this outrageous behavior, Justice Cooper explained in a March 4, 2014 Order that, "a good part of the blame for why this case's interminability must be attributed to the penchant the parties have for side-deals, unwritten agreements and opaque private arrangements." He went on to explain that:

To this day, it remains totally unclear as to how the two apartments in which defendant lives came to be titled in her name alone, when the stipulation of settlement and the judgment of divorce required the parties to divide the units by January 1, 2007. Similarly, the court cannot fathom how defendant was able to refinance the apartments - despite a prohibition in the agreements against refinancing - resulting in astronomical monthly mortgage payments that defendant has been unable or unwilling to pay. Finally, there remains the question of what became of the money that defendant received as part of the refinances; there are suggestions that she took close to $200,000, yet there has never been an explanation given for where this money went.

As further explicated by Justice Cooper in his January 11, 2012 decision in a related plenary action concerning the enforceability of a purported amended stipulation:

it is extremely difficult to state with certainty almost anything as to the facts surrounding the parties' financial obligations towards one another. Not only have the parties been constantly litigating by making post-judgment motion after post-judgment motion ever since the entry of the judgment of divorce on May 4, 2004, but they have managed to complicate matters to the greatest extent possible by entering out-of-court arrangements and what might best be described as "side-deals." Thus, a history that is difficult to decipher to begin with because of the number of motions that have been partially decided or have had portions held in abeyance, because of the multiple appeals and remands, and because of the emotional volatility of the ex-wife, is made all that much more indecipherable by the parties' penchant for entering these private arrangements outside the purview of the court.

Also unexplained is why Defendant retained all the proceeds from the sale of the parties' Pennsylvania home, even though such proceeds were to have been equally shared by the parties under their 2002 stipulation (see Justice Cooper's October 1, 2015 Decision in Motion Seq No. 24, 26, 27, & 41). Nor is it clear how or why Plaintiff is obligated to pay $3,765.90 in monthly spousal support when the 2002 stipulation only obligated him to pay $3,100 per month.

Defendant's lack of respect for this Court is particularly stunning. Defendant's inappropriate behavior is showcased through her interactions with the Court. Predating this current motion and this jurist being assigned to the case, Defendant has continuously and repeatedly undermined the Court proving to make the resolution of this matter difficult. In the Court's Decision dated March 4, 2014, Justice Cooper stated:

"Rather than allow a judge to be a decision maker who sits above the fray, defendant has worked tirelessly to undermine the court's authority and destroy any sense of decorum in the courtroom. In addition to regularly speaking derogatorily of the court and its staff, and going on long diatribes where she turns to address the audience in the courtroom, defendant has threatened to bring guns to court and hurt or kill the plaintiff."

In this current proceeding, Defendant has been forcibly muted during virtual appearances because she would constantly interrupt the Court with outbursts and not stop after repeated warnings. She was similarly rude and abusive to court staff, and unnecessarily argumentative with the Court including regarding the Court's choice of words, selection of dates, and procedural and logistical directions. Defendant has even taken phone calls during the virtual proceedings and hearing and had to be directed to hang up the phone, again, showing no respect for this process or this Court which is reflected in the record. At other times, Defendant simply walked away from her computer screen with no announcement, and, when this Court declined to incarcerate Plaintiff, Defendant was seen and heard running out of her room screaming.

This last observation is perhaps most significant as it relates to Defendant's singular years-long goal of seeing Plaintiff incarcerated which was made clear in these recent proceedings and in the many that came before. However, unlike Defendant, courts do not lightly consider incarceration, particularly when it is related to a civil contempt involving private financial obligations.

In this motion sequence, as in many previous ones, Defendant seeks to hold Plaintiff in contempt for failing to make maintenance payments since January 2021. Additionally, Defendant seeks an upward modification on the current support amount. ^[1] Plaintiff cross moves to terminate or in the alternative, for a downward modification of the spousal support obligation.

In determining the motion and cross motion, this Court, particularly since it sits as a Court of equity, was obligated to review the dense and byzantine history of this litigation in order to uncover the twists and turns of this litigation, and with the hope of coming to some partial understanding of what it all means.

BACKGROUND

Thankfully a comprehensive history of this litigation and the parties' agreements (through 2007) can be found in a 2007 decision from the Appellate Division, First Department (see 40 A.D.3d 201, 202-204 [1st Dept 2007]). The history as set forth there is as follows:

The parties, married in 1982, have three children. The husband commenced this divorce action in February 2001. ^[2] On November 11, 2002, the parties, each represented by counsel, entered into a 55-page stipulation of settlement to be incorporated but not merged in any subsequent divorce decree. The stipulation provided that upon execution of the agreement, or as soon thereafter as practical, the parties would execute all documents necessary to transfer title of the two condominiums held by them as tenants by the entirety one to each of them individually, subject to existing mortgages, with the wife to receive the condominium unit with the larger value. By January 1, 2007, the apartments were to be reconfigured into two separate units, with each party responsible for all costs and expenses related to his/her unit. Until the division of the apartments into separate units, the wife was entitled to exclusive use and occupancy

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