Bloom v Hilpert, 2023 NY Slip Op 06798 [222 AD3d 574]

December 28, 2023

Appellate Division, First Department

[*1]

Erika Bloom, Respondent,

v

Daniel Hilpert, Appellant.

Daniel Hilpert, appellant pro se.

Judgment, Supreme Court, New York County (Elizabeth Shamahs, Special Ref.), entered December 21, 2022, insofar as appealed from as limited by the briefs, granting plaintiff wife a judgment of divorce; setting child support at $5,558.42 monthly to be paid to the wife by defendant husband through the support collection unit, based on the apportionment of the parties’ respective incomes at 52% to the husband and 48% to the wife; ordering entry of a money judgment against the husband for retroactive support in the amount of $341,650.66 plus statutory interest; awarding the wife exclusive occupancy of the parties’ home in East Hampton until the younger child reaches the age of 18 or sale of the home, with the wife to bear the carrying charges , and providing for the distribution of the proceeds upon sale; ordering that 16 Judge Street, Brooklyn, be placed in a receiver’s control and sold, with provision for distribution of the proceeds to the husband, wife, and the husband’s irrevocable trust for the children’s benefit; and awarding the wife counsel fees in the amount of $80,579.84, unanimously affirmed, without costs. Order, same court and Special Referee, entered December 13, 2022, as amended, January 4, 2023, unanimously dismissed, without costs, as subsumed in the judgment of divorce. Order, same court and Special Referee, entered December 21, 2022, which appointed a receiver for the sale of the 16 Judge Street property, unanimously affirmed, without costs.

The husband was not deprived of his right to a fair trial. A court has broad discretion in controlling its trial calendar, so long as it is exercised in a judicious manner ( see generally People v Griffin , 92 AD3d 1 , 3 [1st Dept 2011], affd 20 NY3d 626 [2013]). Under the circumstances, after 33 days of trial, and numerous delays, verbal outbursts and threats by the husband, the court’s determination that it would only allow three more trial days was not an improvident exercise of its discretion. Moreover, the court advised the husband of this over a month before the next trial date, providing him with ample opportunity to prepare for the remainder of the trial. Although the husband complains he had trouble getting his documents into evidence, he elected to be unrepresented by counsel. While courts may afford a pro se litigant some latitude, a pro se litigant “acquires no greater right than any other litigant” and is “held to the same standards of proof as those who are represented by counsel” ( Duffen v State of New York , 245 AD2d 653, 654 [3d Dept 1997], lv denied 91 NY2d 810 [1998]; see also Roundtree v Singh , 143 AD2d 995, 996 [2d Dept 1988]).

The court did not improvidently exercise its discretion by imputing income to each party. Courts are afforded considerable discretion in imputing income, so long as it has some basis in law and fact ( Flom v Flom , 170 AD3d 440 , 443 [1st Dept 2019]). A court need not rely upon a party’s own account of his or her finances but may impute income based upon past [*2] income or demonstrated earning potential ( see Lennox v Weberman , 109 AD3d 703 , 703-704 [1st Dept 2013]). Here, the court rejected both parties’ claims regarding their financial situations and based its imputed income calculation for the wife on her expenses in her 2019 Statement of Net Worth and calculated the husband’s income based on averaging seven years of tax returns as his income admittedly fluctuated over the years.

Based on the record before us, the court’s determination that 16 Judge Street was marital property was not in error. Property acquired during the marriage is presumptively marital ( Fields v Fields , 15 NY3d 158 , 163 [2010]). The burden of proof is with the party who claims that the property is separate ( Ferrante v Ferrante , 186 AD3d 566 , 568 [2d Dept 2020]; see also Domestic Relations Law § 236 [B] [1] [c]). Thus, it was the husband’s burden to show that he used separate property to acquire this asset. However, the record contains no documentation supporting this claim. The husband’s unsupported testimony is insufficient to meet his burden.

We further conclude that it was not error for the court to have appointed a receiver to manage 16 Judge Street and to effectuate its sale. Although the record provided by the husband on his appeal lacks over half of the transcripts from the 36-day trial, it nonetheless demonstrates that the husband admitted that he used tenant security deposits for personal use, among other things, and that the parties have an acrimonious relationship. Consequently, sale of the property and distribution of the proceeds is proper ( see Martinucci v Martinucci , 288 AD2d 444, 445 [2d Dept 2001]; Wong v Wong , 161 AD2d 710, 711 [2d Dept 1990]). The husband claims that his “partner” was not made a party to the divorce action. However, the other member of the entity owning 16 Judge Street LLC is an irrevocable trust for the couple’s children, whose interest as beneficiaries of the trust will be protected by the sale and distribution.

It was not an improvident exercise of discretion for the court to award the wife the exclusive use and occupancy of the parties’ home in East Hampton. Although the husband claims that he has been residing in the Hamptons home, the inadequacy of the record, which entirely lacks the wife’s testimony concerning the relevant facts, precludes our review of this point ( see Djeddah v Djeddah , 172 AD3d 634 [1st Dept 2019], lv dismissed 34 NY3d 1084 [2020]; Reiss v Reiss , 280 AD2d 315, 315 [1st Dept 2001]).

The court’s award of counsel fees to the wife was also a provident exercise of the court’s discretion. It is well established that a court may award counsel fees to a party when the other party has engaged in conduct that has resulted in a delay of the proceedings (Domestic Relations Law § 237 [a]; Prichep v Prichep , 52 AD3d 61 , 64 [2d Dept 2008]). Although the record is limited, the transcripts we have before us reflect that the husband engaged in dilatory tactics and behavior, threatened the [*3] wife, her counsel, witnesses and the court, repeatedly asked for adjournments, and otherwise behaved in a manner that , at a minimum , delayed the proceedings.

We have considered the husband’s remaining arguments and find them unavailing. Concur—Kern, J.P., Oing, Gesmer, Moulton, Mendez, JJ.

Motion to stay appointment of a receiver pending appeal, denied as moot..