In the instant action the parties were married on December 26, 1996. At the commencement of the action, the husband was 38 years of age, the wife 31, and there are three children: ages 5, 3 and 2. The parties resided in Brooklyn, New York. The trial was concluded on November 6, 2006.

An inquest on the issues of grounds was marked "decision reserved" on October 27, 2006. The wife brought forth a contempt proceeding regarding the husband obtaining a refinance of the marital residence and liquidating the sum of $128,000.00 during the course of the action. This contempt motion which was extant before the court was resolved by the parties (without the assistance of the court) which resulted in, inter alia, an agreement where the husband agreed to a judgment to be entered against him for $64,000.00.

The issues of custody and visitation as well as the request for an order of protection were previously resolved, and the wife was granted custody of the infant issues, on consent. The husband did not seek visitation.

On the issue of custody and visitation, order of protection and contempt, the court assigned counsel for the husband pursuant to the newly enacted Section 35(8) of the Judiciary Law. There is no provision in accordance with Section 35(8) of the Judiciary Law for the assignment of counsel on the economic issues of the divorce or child support. The wife waived any equitable distribution and maintenance and proceeded to trial on the issues of counsel fees and child support. It should be noted that when the action was commenced the husband had a lawyer of his own choosing who was discharged by the husband on the record on June 27, 2006. The husband chose to represent himself in this matter, after his court-appointed counsel was discharged by the court when the issues of contempt, custody, visitation and order of protection were resolved.

The parties owned a residence in Brooklyn, New York, and according to the husband's affidavit of net worth, introduced into evidence at trial, the monthly mortgage payments were $2,323.66 per month and real estate taxes were $550.00. He listed his monthly utilities as costing $222.00 for gas, $100.00 for electricity, $62.00 for telephone and water costs of $200.00, together with $400.00 in grocery costs, $200.00 per month for lunches at work, and $700.00 per [*2]month in dining out costs, clothing costing $400.00, laundry $60.00, insurances $63.00 per month, as well as total household repairs of $30,000.00, together with furnishings of $1,666.00. He also listed appliances at $333.00 per month for maintenance. The husband listed his federal income taxes at $27,400.00.

The section delineated "gross income" was left blank and he indicated that he had $2,000.00 in a Washington Mutual Savings Bank account, and a Washington Mutual account number ending with the last four digits of "6253" with the sum of $25,599.61. The real estate was listed as valued at $500,000.00, the original value being $232,000.00 with a $396,000.00 lien. He also listed a UGMA account in the name of one of the children in the amount of $5,000.00 with a current value of $4,000.00.

As for liabilities, in the affidavit of net worth the husband lists $396,000.00 as a debt to US Mortgage Corporation for the home mortgage as well as credit card debt in the amount of $4,500.00 for Sears, $200.00 for Macy's, $400.00 to Old Navy. The husband failed to list any "total liability" and indicated that he paid his attorney the sum of $1,500.00 with a $2,500.00 retainer and additional amounts were due as necessary.

In response to a demand to answer interrogatories, the husband indicated that he had no tax returns in his possession for the past five years, listing the name of an accountant. He indicates that he spent about $30,000.00 for home repair materials including carpeting and to one "Edward Stewart" for labor, and indicates that he expended sums of money for gambling in Atlantic City and Las Vegas including "Bali Casino", "Caesars" and "Trump Casino". Attached to the husband's response to interrogatories supplied by him was a uniform residential loan application. Utilizing said application the husband applied for and received refinancing of the residence, in the sum of $128,079.35. On said application income was listed as $4,868.00 per month with expenses of a first mortgage at the time of $1,523.00. At that time there was an unpaid mortgage from Chase Manhattan in the sum of $239,675.00

The wife's affidavit of net worth introduced at trial indicates that there are three children under the age of 21: ages 5, 3 and 2, of this marriage. The wife indicates on said affidavit of net worth that the husband was an HVAC mechanic and she was a homemaker. According to the wife's affidavit of net worth, the husband ceased paying the mortgage in 2005 of $2,323.00, that her real estate taxes were $23.23 per month, that utilities were paid by the husband in the amount of $224.00 for gas, $95.00 for electricity, $33.00 for water and in violation of the pendente lite order, the utilities were in arrears. She stated she paid $416.00 a month for grocery through food stamps and $100.00 in home entertainment for cable. She lists dining out costs at $40.00 per month. The wife indicates that the husband had a 1999 Chevy Blazer and that the husband may have disposed of the car. In the affidavit of net worth, the wife places asterisks next to the "Gross Income" section and states that "upon information and belief payments have ceased due to investigation of the husband by Housing Authority. Former amount was $1,420.00" and that according to the documents supplied at the time of the refinance by the husband as to balance in a bank account "husband/plaintiff had a $25,599.61 in bank account at time of the refinance according to documents provided by him."

In her affidavit of net worth, the wife describes the residence as a marital home that was occupied by defendant wife and three children in one unit and a renter in another unit and that the husband refinanced the property of the home during the period of separation. According to the wife's affidavit of net worth, the refinance occurred in approximately October of 2005. It [*3]must be noted that a review of the court records herein indicates that the summons with notice and complaint were filed on June 17, 2005. According to her affidavit of net worth, the husband liquidated the bank account in 2005 in the amount of $25,599.31. The proceeds of the equity loan in the sum of $128,079.00 as well as a 1999 Chevy Blazer which he estimates to be worth $5,000.00 to $7,000.00. Additionally, jewelry is listed in the amount of $800.00.

In the section requesting support requirements, the wife indicates:

(a)Deponent is at present paying $0 per week, and prior to separation paid $400.00 per week to cover expenses for cable, telephone, food, clothing, life insurance for himself, movies, cd's and beauty aids, allowances for children, birthday gifts for children's parties.

(b)Deponent requests for support of each child $84.58 per week. Total for children $253.75. (29% of husband's 875.00 weekly income/520.00 salary prior to loss of job during pendency of action and 355.00 rental income prior to investigation by Housing Authority)

(c)Deponent request for support of self $150.00 per week.

With regard to counsel fees, the wife indicates: " Deponent requests for counsel fee and disbursements the sum of $1,500 plus fees if uncontested divorce. If contested, $1,500.00 and $200.00 bi-weekly until hourly rate is paid in full plus miscellaneous fees (see retainer)". The wife indicates that she has paid counsel "an additional $1,200.00 and an additional 5,310.00 is owed counsel as of 5/31/06".

The only issues that the wife requested the court to decide were child support and counsel fees. The wife called the husband as her first witness on the application for child support who at first could not remember how much he originally paid for the home but when given documents to refresh his recollection was reminded that he made a down payment of $13,700.00. Additionally, when questioned as to his income as listed on the loan refinance application of $48,048.00, the witness denied that was the correct amount. He also denied that he had $25,599.61 in the bank as listed in the application at the time he applied for the refinance. He admitted that he did receive $128,079.35 and that he listed the value of the home at $500,000.00, indicating that was based upon an appraisal. The husband admitted providing a copy of the loan application to his former attorney which was then attached as part of his response to interrogatories. He said he did not know what the "big word" interrogatory meant but he did know that it was being attached to something to submit for purposes of the divorce. He said that he just signed the document, not knowing what it was but just wanted to get his life back together, "so I signed anything. Anything anybody bring to me to get my life back together, I signed it". When asked if he attested to the truthfulness of the document, the witness responded "Yes. But I don't read it. I'm not a very bright and intelligent person. So if they bring it, come give to me, I sign it." While admitting that he knew it was coming into court, he states he did not read it. The witness did not remember signing the interrogatory documents and responses thereto in front of a notary.

At trial the husband admitted that he received a check of $128,000.00 from the refinance of the marital residence during the course of the divorce action. He indicated that he gave the check to a "John Brown...because he was a friend of mine and he would change it for me". [*4]When questioned why he did not bring the money to a bank, he said that he wanted nothing to do with a bank. The husband testified that there were three payments made by this friend who lived in Queens whose address he did not know and that he went there a lot of times but he didn't have the address in his head. When asked what this friend's phone number was he said the "friend died and his number changed". The witness could not remember his phone number although he indicated he was a good friend of his and that he received three payments after he gave him a $128,000.00 check. He thought it was $40,000.00. He doesn't remember now in what amounts he gave him the money, he wrote it down on a piece of paper and he didn't bring the piece of paper with him "so my head is not here, you know. I am not a lawyer who study whatever you do, and you know, I don't have my paperwork." He could not remember whether or not he was given $50,000.00 at one time, $50,000.00 a second time and $28,000.00 a third time.

In response to the question as to why he gave Mr. Brown the money, the husband testified at trial that his wife and her family had planned to take the house from him. The husband did not remember signing the back of the $128,000.00 check. The husband indicated that he knew Mr. Brown for four or five years.

The husband also testified that he sent $30,000.00 to Jamaica by giving to "someone" to take it there in cash, could not remember when he gave it to this individual who then allegedly gave it to his mother. He said his mother has no address in Jamaica and "they live in the bush". The husband claimed he did not know the name of the person he gave the $30,000.00 cash to, didn't know how old she was and gave it to her, in a car in a parking lot at an airport.

The husband claims he used an additional $30,000.00 to fix up the marital residence and that his best friend did the work in the basement, buying most of the materials from Home Depot and a carpet place. He could not remember if he purchased things with a credit card and didn't keep any receipts even though it was a rental property.

Additionally, the husband testified that the remaining $68,000.00 had been gambled away. He didn't remember when he went to Atlantic City to gamble it away and did claim he drove his brother's Expedition. He also admitted to going to Las Vegas, staying in a cheap hotel and could not remember the name of the hotel. At trial he was reminded that at the deposition he claimed that he had $45,000.00 in cash and $5,000.00 in checks with him when he went to Las Vegas and indicated that he brought the $45,000.00 in one hundred dollar bills on the plane but did not remember if there were all hundreds. The husband admitted at deposition and testified that some of the money was in his shoes, some of the money was in his pockets and that he played "jack and stuff like that". He indicated he went to three different named hotels but could not remember when he took the money out of his shoes.

When asked about the $68,000.00 that he gambled away and whether or not he gave the money to his children, his answer "I didn't give them nothing. They wasn't my kids. She told them that I am the father (sic)."

After being read his deposition testimony in open court that he indicated that he would not voluntarily give his checking account statements, the husband stated that his lawyer told him he did not have to do so. Yet, when further pressed at the deposition, when asked why he was not going to put forward his account records his answer was "it's mine..." He further answered "it's mine I don't want to give it".

In response to questions concerning the 1999 Chevy Blazer, the witness answered "it wasn't mine from the first place. I did buy it, yes I did, but at that time I give it over to [*5]somebody who insure it, license it and everything and she knew that also".

The husband indicated upon direct examination that he gave up his job and was now unemployed because business was slow and that he had to come to court too many times. He also claimed that "I&S (sic) said I can't get a job".

The husband stated that he did not remember that this court ordered him to pay $300.00 per week in child support pendente lite. Notwithstanding the fact that the husband was in the courtroom at the time of the pendente lite order!

The husband apologized to the court during cross-examination in the narrative. "I was sorry that I take the money out and it happened and I can't really bring that money back. You know. The money is done and gone already." The husband blamed the wife's father of trying to kill him and claimed that the wife told the children that they are not his children.

Defendant wife testified that she was a full time homemaker and caretaker of the children since their birth. At the present time the husband is not providing any support as required by the court's pendente lite award; that she is fully supported at the present time by her father who purchased the former marital home while the house was in foreclosure (once the husband refinanced the property he stopped making all mortgage payments). She receives food stamps but all other costs are paid for by her own father. She claims that she did not know what happened to the bank account or the Chevy Blazer and that the husband took her jewelry. When the proceeding was commenced he was earning $500.00 per week, she thinks before taxes. There was additionally rental income from the upstairs tenant in the amount of $1,420.00 monthly but has not received any income from the rental. When questioned as to why no rents were being paid, the wife indicated that last winter the husband came into the marital home while she was at the courthouse, broke the boiler, the hot water heater and that since then the tenants have stopped paying the rent.

The wife testified that the home had been foreclosed upon and that her father purchased the house in foreclosure by selling his own house.

The wife stated that while the parties lived together, the husband paid approximately $3,000.00 a month in support for the children while at the same time she testified that he earned $500.00 per week before taxes.

The husband did not wish to cross examine the wife, indicating that all he wanted to do was move on. "I ain't got nothing to say. I just want to move on". Although the husband did not wish to put on a witness, the court, as the trier of fact, swore the husband in to briefly ask him some questions. He indicated he did not sign his affidavit of net worth yet, it was signed and notarized. When questioned as to whether or not he spent the $128,000.00 after the court issued an order stating that he should not spend the money, he indicated "No Your Honor".

QUESTION:Was it after the court issued an order that you shouldn't transfer the property or encumber it?

ANSWER:The court didn't order me not to sell it, not to sell the house. That's all I remember, Your Honor. That's what the court ordered me not to do.

The husband indicated that he hasn't worked since last January, that he is living with a friend, and that the person he is staying with named "Donnette" gave him money to take the train to come to court. He indicated that he sits home all day, he picks up this individual's children from school for her "until he gets his life back together". When asked how he plans on getting his life back together, his answer was that he had to get married to his girlfriend so he [*6]could start his life all over again because that is the only way he can have paperwork in the United States. He indicated that he plans on getting married to this individual as soon as the divorce is over. As the witness was leaving the stand he asked one final question: "When I get my divorce papers, sir?".

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.

However, "[i]n determining a party's child support obligation, a court need not rely upon the party's own account of his or her finances, but may impute income based upon the parties' past income or demonstrated earning potential" (see Rocanello v. Rocanello, 254 AD2d 269, 678 NYS2d 385 [2nd Dept 1998]).

This court can impute income based on the wife's testimony concerning the parties' marital lifestyle and earnings, and based on the husband's evasive testimony as to his income and expenses, and accordingly draw an adverse inference that the husband was dissipating assets (Domestic Relations Law § 240 (1-b) (b) (5) (v); Talero v. Talero, 767 NYS2s 235, 1 AD3d 522 [2nd Dept 2003]; Cohen v. Cohen, 294 AD2d 184, 741 NYS2d 6868 [ 1st Dept 2002]; Matter of Graves v. Smith, 284 AD2d 332, 725 NYS2d 367 [2nd Dept 2001]).

It is clear to this court that the husband has been both deceitful and dishonest to this court. His credibility is severely lacking and he told a tale of woe that was evasive, non-responsive and clearly untruthful. He dissipated the marital residence, violated a court restraining order and has abandoned his family. The court believes he still has a portion of the $128,000.00, together with the bank accounts. Yet, the court is bound by the parties' decision to settle the issue of equitable distribution, contempt and maintenance. He has provided his family with no support and allowed the house to go into foreclosure while for a time absconded with the rents. Now he wants his divorce to be final so that he can re-marry, claiming that he can no longer work due to his immigration status.

The husband clearly stonewalled any discovery and the only clear and accurate picture of his income comes from his mortgage application that he attached to his discovery response. Clearly, the husband's attaching to his sworn response to interrogatories a copy of the mortgage application he filed, constitutes an informal judicial admission (see Prince, Richardson on Evidence § 8-219, at 529 [Farrell 11th ed]; see also Liquidation of Union Indemnity Ins. Co. of New York v. American Centennial Ins. Co., 89 NY2d 94 [1996]; see also Mortenthow & Latham v. Bank of New York, 305 AD2d 74 [1st Dept 2003]); Koslowski v. Koslowski, 245 AD2d 266 [2nd Dept 1997]). He denied reading anything he signed and disavows all of his representations made to his prior lawyer, the mortgage broker or to this court, even forgetting that this court issued a pendente lite decision on March 2, 2006.

It has been previously held that "[a]lthough not conclusive, informal judicial admissions are evidence' of the fact or facts admitted and may, if unrebutted and unexplained, support a motion for summary judgment" (citing Koslowski at 266). Similar to the court's holding in Koslowski, the fact that the husband allegedly did not read the application before signing it is insufficient. Clearly, his trial testimony, conduct during the litigation, refusal to provide discovery, and complete lack of candor and credibility did not rebut or explain the informal judicial admission.

He does not know the name of an individual he gave $30,000.00 to at an airport or where [*7]she lives, nor does he know his mother's address, or where his "deceased" friend who apparently cashed his $128,000.00 check lived. The wife has waived equitable distribution and maintenance and is only seeking child support and counsel fees.

The husband's affidavit of net worth is left blank in the gross earning section and the wife believed he earned $500.00 a week gross or $26,000.00 a year. When you take into account the rents he was receiving of $1,420.00 per month (said amount is equal to $17,040.00 a year), plus the $26,000.00, for a total of $43,040.00 per year. It is significant that on the application to refinance the husband listed his income as $58,416.00. The wife no longer owns the house and those rents are not presently being received. As such, the court will fix child support at 29% of the parties' gross income. The wife's income is $0.00 and the husband's gross income is $41,376.00 ($58,416.00 less $17,040.00 [rents no longer received]).

The husband's affidavit of net worth states he paid FICA at $41.28 and Medicare at $9.65. Since he placed a "?" mark next to NYC taxes, the court will deduct only FICA and Medicare ($50.93) from his gross income, or $2,648.00 per year. Thus, the court finds that the husband's gross income is $38,728.00 per year for purposes of calculating child support ($38,728 x 29% = $11,231,12) (see Apgar v. Apgar, ___AD3d___, 2007 NY Slip Op 01295 [2nd Dept 2007]). The wife's income equals $0.00 pro rata share 100% the husband, 0% the wife. Child support is fixed at $216.00 per week, payable through Support Collection Unit, retroactive to the date of first application (July 6, 2005) (see Dooley v. Dooley, 128 AD2d 669, 513 NYS2d 167 [2nd Dept. 1987]), with arrears fixed at $50.00 per week.

The court does not believe that the husband is unable to secure any form of employment. He has absolutely no credibility and has lied and evaded the court process. He plans on "remarrrying" and while he abandoned his own children he takes care of his girlfriend's and is allegedly receiving money from her. If in fact he is telling the truth about his desire to quickly remarry and then obtain employment, he should be held to the same standard of his prior earnings.

"An award of an attorney's fee lies in the sound discretion of the trial court, after the court has taken into account the equities and circumstances of the particular case and the respective financial circumstances of each party" (see Domestic Relations Law § 237(a); see also Gagstetter v. Gagstetter, 283 AD2d 393 [2nd Dept. 2001]). "[I]n exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the circumstances of the case, which may include the relative merit of the parties' positions" (DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 518 NE2d 1168, 524 NYS2d 176 [1987]).

Unlike a pendente lite decision, a final order of counsel fees must be based on an evidentiary hearing unless there is a stipulation allowing the court to decide the issue on submission. In this case, the parties did not stipulate in open court that a determination regarding counsel fees may be made on submission in lieu of a hearing on the reasonableness of the fees (see Krutyansky v. Krutyansky, 289 AD2d 299 [2nd Dept 2001]; Silverman v. Silverman, 193 AD2d 595, 597 NYS2d 455 [2nd Dept 1993]).

The wife or her attorney failed at trial to submit any bills, records or testimony concerning counsel fees. As such, the application for counsel fees is reluctantly denied.

Additionally, the court grants the husband a divorce without objection based upon the [*8]grounds of constructive abandonment pursuant to his testimony on October 27, 2006, and custody of the infant issues to the wife pursuant to the stipulation. Either party may settle judgment on notice, together with the minutes of the inquest, this decision and the minutes of any other agreement, separate findings of fact, conclusions of law within 60 days.

HON. JEFFREY S. SUNSHINE

J. S. C.