The plaintiff commenced this action on September 26, 2005 by the filing of a summons and verified complaint. The defendant was served on October 6, 2005, by personal service, but failed to appear or serve an answer. The plaintiff submitted an application for a default judgment on the ground of abandonment (DRL 170, subd.2), with a request for an inquest on equitable distribution of the marital residence owned by the parties as tenants by the entirety.

The Court scheduled an inquest for November 14, 2006. The defendant was served with a copy of the order scheduling the inquest, by regular and certified mail, but failed to appear on the scheduled date. The court conducted the inquest pursuant to the mandates of Domestic Relations Law §236(B). (See, Otto v. Otto, 150 AD2d 57).

BACKGROUND

The parties were married on December 21, 1971. There are three children of this marriage, Theodore, Stephen and Elizabeth. In her complaint, the plaintiff sought inter alia divorce on the ground of abandonment, maintenance of the plaintiff, child support , and exclusive possession and title to the marital residence and its contents located at 134-23 246th Street, Rosedale, New York.

At the inquest, the plaintiff made a prima facie case for a divorce based on abandonment. The plaintiff testified that on or about March 1996, the defendant left the marital residence, without providing any address or contact, and has not resided there since that time. The defendant disappeared, abandoning the plaintiff and their three children, and this abandonment was not provoked by any conduct on the part of the plaintiff. The Court then heard testimony as to the equitable distribution of the marital assets. The plaintiff offered testimony and exhibits, consisting of cancelled checks, tax returns, mortgage statements, in support of her claim for exclusive possession and title to the marital residence owned by the plaintiff and defendant, as tenants by the entirety.

The parties purchased the subject premises, to which they received a deed dated October 17,1984, for the price of $85,000. Of the aforementioned sum, approximately $75,000 was secured by a [*2]mortgage that was paid on a regular basis by both parties. On or about September 1994, the parties refinanced the marital residence for the sum of $107,000. Plaintiff alleges that the net proceeds of the mortgage refinancing, approximately $30,000, were taken by the defendant, without her consent, and utilized by him to pay his personal debts.

In March 1996, when the defendant abandoned his family, he was earning approximately $50,000 per year from his employment with the New York City Transit Authority. The plaintiff, then employed by the United States Department of Justice, earned approximately $55,000. per year. The plaintiff testified that when the defendant left, he absconded with marital funds of

approximately $20,000 in joint savings accounts and bonds. From March 1996, the defendant ceased

any contribution to the support of the children and to mortgage and household expenses.Without any contribution from the defendant, plaintiff solely paid the monthly mortgage charges and other expenses of the marital residence, and provided food and clothing for the family. She alone took all necessary steps to maintain the household, assuming all responsibilities for the rearing of the parties' children, in effect as a single parent although still married to the defendant. On August 27, 2005, almost ten years later, the defendant suddenly appeared and knocked on door of the marital residence.Plaintiff testified that she received a phone call from one of her children saying, "Ma, there is someone at the door. I think it is our father." The plaintiff immediately rushed home to discover that defendant had dropped off a piece of paper containing some addresses and left quickly.

Plaintiff avers that as to equitable distribution, she is entitled to sole title to the marital residence and it contents, in addition to exclusive rights to her pension benefits and deferred compensation. The Court agrees.

EQUITABLE DISTRIBUTION

Defendant's interest in the marital residence should be transferred to the plaintiff in the case at bar. In Bittner v. Bittner (296 AD2d 516), the court directed the defendant to convey his interest in the marital residence to the plaintiff-wife, upon the condition that she deliver to him a satisfaction of all money judgments in her favor for support arrears entered prior to the judgment. The parties in that case had $123,000 in equity in the marital residence and pendente lite support arrears had beenfixed at $63,262.46. The court therein concluded that the transfer of the marital residence to the

plaintiff to offset the support arrears was appropriate. (See, Maher v Maher, 144 AD2d 343;Erdheim v. Erdheim, 119 AD2d 623; Maloney v. Maloney, 114 AD2d 440; Sementilli v. Sementilli,102 AD2d 78).

In the instant action, plaintiff-wife did not commence any proceeding for child support or maintenance. As a result, no arrearage can be attributed to defendant. Nevertheless, the husband's lack of contribution of any monies for maintenance or child support from March, 1996 to the present time, is a factor which warrants consideration by the Court in determining equitable distribution of the marital residence.

As stated supra, at the time the defendant left his family, he was earning approximately [*3]$50,000 a year. The parties had three infant children, but the eldest was nineteen years old and reached his majority in 1998. Even if the oldest child is discounted from the child support computation, the defendant's child support obligation pursuant to the CSSA guidelines was approximately $11,000 per year. When this action was commenced, the defendant had not paid any child support for nine years. Without considering even cost of living increases in defendant's earnings, he would have owed $99,000 in child support had the plaintiff moved for pendente lite child support. The defendant would also have been required to share proportionately in the payment of childcare expenses incurred by the plaintiff in the sum of $66,727 in order to work outside the home. Additionally, plaintiff incurred the following expenses: life insurance -$11,400; school tuition -

$14,595, after school activities $4,560, and medical insurance premiums which are currently

$354.00 monthly.To maintain thehouse the plaintiff made mortgage payments of $165,100,

Con Edison payments of $18,000, and payments to Keyspan for heating of $19,800, from 1996 tothe time of inquest.

The value of the marital residence is approximately $375,000, with a balance of $343,000 remaining after the mortgage balance is deducted. The Court finds that defendant's share of the expenses incurred by the plaintiff in maintaining the marital residence and supporting her three children far exceeds the value of any equitable share of the marital residence to which he may be entitled. Therefore, in light of the totality of the circumstances , it is appropriate to offset defendant's support obligations by awarding plaintiff title to the marital residence and its contents. (See, Bittner v. Bittner, 276 AD2d at 518.The plaintiff and defendant were both government employees with pension benefits, earning almost equal salaries, when the defendant left in 1996. At the inquest, plaintiff stated that she waives her right to any share of defendant's accrued pension benefits and seeks to retain all rights to her own pension benefits and deferred compensation.Since March 1996 the plaintiff's salary has almost doubled as she worked her way up to the position of Officer- In- Charge at the U.S. Citizenship Service for the Department of Homeland Security.The pension benefits and deferred compensation to which plaintiff is now entitled are predominately attributable to this increased salary. The defendant did not contribute in any manner to the accumulation of increased pension benefits and deferred compensation earned by the plaintiff. Accordingly, he is not entitled to any share of these assets.

The Court in reaching the conclusion that the plaintiff is to be awarded exclusive possession and title to the marital residence and all rights to her pension benefits and deferred compensation has considered the thirteen factors delineated in Domestic Relations Law Section 236(B), as follows:

(1)the income of each party;

Plaintiff and defendant were both government employees. The plaintiff was [*4]employed by the United States Department of Justice and the defendant was employed by the New York City Transit Authority. At the time defendant abandoned the family, he and the plaintiff were earning similar amounts and had been contributing equally to the marriage. However, the defendant abandoned the family in 1996 and ceased making any financial contributions.

(2)the duration of the marriage and the age and health of both parties;

The plaintiff and defendant were married in 1971 and had been living together for almost 25 years in March 1996. When this action was commenced, both were 52 years old and apparently in good health;

(3)the need of a custodial parent to occupy or own the marital

residence and to use or own its household effects;

There are at present two minor children of the marriage: Steven Matthew Pritchett and Elizabeth Ann Pritchett . These children have resided in the marital residence since they were born. It is in their best interest that the plaintiff, who is the custodial parent, continue to occupy the marital residence.

(4)the loss of inheritance and pension rights upon dissolution ofthe marriage as of the date of dissolution;

(5)any award of maintenance;

As this time, the plaintiff is not seeking a maintenance

award.

(6)any direct and indirect contribution made to the acquisition

of such marital property by the party not having title.

Not applicable

(7)the liquid or non-liquid character of all marital property.

The only liquid marital property consisted of bank accounts and bonds in the sum of $20,000. The defendant absconded with this property

when he abandoned the family in 1996.

(8) the probable future financial circumstances of each party.

Defendant's present income is unknown, but in 1996, he was employed by the New York City Transit Authority and earned approximately $50,000 a year. At that time the plaintiff [*5]earned about $55,000 a year. The plaintiff presently earns approximately $125,000 per year and it is presumed that defendant's earnings have also increased.

(9)the impossibility or difficulty of evaluating any component asset.

Not applicable.

(10)the tax consequences to each party.

Not applicable.

(11)the wasteful dissipation of assets by either spouse.

In 1994, the defendant took $30,000, obtained by refinancing

the marital residence, and used this sum to pay his personal debts. He absconded with the marital savings in the approximate sum of $20,000 when he abandoned the family in 1996. From the time of defendant's

departure, he has not paid child support nor contributed in any way to

the support of his family, including the upkeep of the marital residence.

(12)any transfer or encumbrance made in contemplation of this action without fair consideration

Not applicable

(13)any other factor

The plaintiff has had the entire financial burden of supporting

three children, paying the mortgage and other expenses of the marital

residence for over nine years, as well as the emotional strain of raising

three children without the other parent.

CONCLUSION

After considering all relevant factors, this court finds that the expenses incurred by the plaintiff in maintaining the marital residence and supporting her three children since the defendant abandoned the family far exceed the value of defendant's interest in the marital residence, which is minimal at best. The premise of the equitable distribution law as it has been written and interpreted by the courts of this state is that the marriage is an economic partnership. (See, Price v, Price, 69 NY2d 8, 14; O'Brien v. O'Brien, 66 NY2d 476). The success of this partnership depends on the the contributions of both spouses. Defendant's abandonment of his family for nine years and his failure to contribute any monies for their support during this period created a substantially unequal burden upon the plaintiff to the benefit of the defendant. This benefit of the non-contributing [*6]spouse constituted an unjust enrichment which should be rectified.

Accordingly, plaintiff is awarded a judgment of divorce on the ground of abandonment, pursuant to Domestic Relations Law Section 170, subdivision 2.

As equitable distribution, plaintiff is awarded sole title to the marital residence and its contents, along with retention of her pension benefits and deferred compensation.

The plaintiff is awarded custody of the two minor children, Stephen and Elizabeth.

The defendant is directed to pay the sum of $917.00 per month as child support commencing on the first day of the month following entry of the judgment herein. The child support payments

are to be made through the Child Support Collection Unit.

Submit findings of fact and judgment of divorce.

A copy of this decision is to be served upon the defendant together with the proposed findings

and judgment.

__________________________________

Darrell L. Gavrin, J.S.C.