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

Monika HEILBUT, Plaintiff-Respondent, v. Francis HEILBUT, Defendant-Appellant.

Decided: August 15, 2002

TOM, J.P., BUCKLEY, ELLERIN, RUBIN, and GONZALEZ, JJ. William S. Beslow, for Plaintiff-Respondent. Bradley B. Davis, for Defendant-Appellant.

Judgment, Supreme Court, New York County (Marjory Fields, J.), entered on or about June 22, 2000, which granted plaintiff a judgment of divorce, order, same court (Sherry Klein Heitler, J.), entered on or about October 23, 2000, which granted plaintiff's motion to confirm the findings of the Special Referee, order, same court (Marjory Fields, J.), entered on or about June 19, 2001, which denied defendant's motion to reopen the equitable distribution hearing, order, same court (Marjory Fields, J.), entered February 8, 2002, which, to the extent appealable, denied his motion to reargue and renew the denial of the request to reopen the equitable distribution hearing, order, same court (Marjory Fields, J.), entered on or about November 28, 2000, which denied defendant's motion for an award of maintenance and attorney's fees, and order, same court (Marjory Fields, J.), entered on or about May 18, 2001, which, to the extent appealable, denied his motion to renew the motion for an award of maintenance and attorney's fee, unanimously modified, on the law, the facts, and in the exercise of discretion, to the extent of granting defendant's motion for an award of attorney's fees in the amount of $41,932, and otherwise affirmed, without costs.

 The parties were married in May 1971 and have one adult child.   At trial, plaintiff testified that in January 1987 defendant stated he no longer wanted to be married, changed his residence to another location and no longer engaged in sexual relations with her.   Both parties agreed that plaintiff moved from the marital home in April 1988, after which defendant returned.   Although defendant provided an alternative version of what transpired in 1987, inconsistent with plaintiff's allegations of abandonment, the record contains ample support for the trial court's findings which resolved credibility in favor of plaintiff (Gunn v. Gunn, 240 A.D.2d 704, 660 N.Y.S.2d 134, lv. dismissed, lv. denied 91 N.Y.2d 911, 669 N.Y.S.2d 255, 692 N.E.2d 124).   Abandonment requires an unjustified, voluntary departure with an intention on the part of the departing spouse not to return (Bazant v. Bazant, 80 A.D.2d 310, 314, 439 N.Y.S.2d 521), against the will and without the consent of the complaining spouse (Belandres v. Belandres, 58 A.D.2d 63, 64, 395 N.Y.S.2d 458).   Defendant abandoned plaintiff when, without justification or consent, he departed from the marital home and resided in another apartment for more than one year.

 With respect to equitable distribution, the 1971 pre-nuptial agreement was properly found to be invalid since it was premised upon a scheme to circumvent immigration laws and was also contrary to public policy since it purported to eliminate essential aspects of every marriage, viz. spousal duties, responsibilities and rights (see, Hartman v. Bell, 137 A.D.2d 585, 524 N.Y.S.2d 477;  and, cf., Bloomfield v. Bloomfield, 97 N.Y.2d 188, 193, 738 N.Y.S.2d 650, 764 N.E.2d 950).   We have reviewed defendant's other contentions regarding the IAS court's resolution of equitable distribution and find them to be without merit.

 The trial court properly denied defendant's application for maintenance since he did not seek maintenance until 10 years after the action was commenced and defendant has not demonstrated any change in his income or standard of living established during the marriage.   Finally, while an award of counsel fees is within the discretion of the trial court (see, De Cabrera v. Cabrera-Rosete, 70 N.Y.2d 879, 524 N.Y.S.2d 176, 518 N.E.2d 1168), defendant submitted documented attorney's fees in excess of $41,000, plaintiff is in a clearly superior financial position, and an award to defendant is required to enable him to obtain representation (Charpie v. Charpie, 271 A.D.2d 169, 710 N.Y.S.2d 363).   We therefore award counsel fees to defendant in the amount sought, including fees for work performed in connection with this appeal.