C.S., Plaintiff–Respondent, v. R.H., Defendant–Appellant. (2026)

Order, Supreme Court, New York County (Kathleen Waterman–Marshall, J.), entered September 8, 2025, which, to the extent appealed from as limited by the briefs, held, after a financial trial, that the trust-held assets were part of the marital estate available for equitable distribution, divided both non-trust assets and the value of the trust assets equally between the parties, awarded the wife $1,676,594.25 in legal fees and $162,306.50 in expert fees, awarded her $8,333 per month in child support, retroactive to the date of commencement, and set the child support arrears at $724,971, modified, on the law, to the extent of vacating the determination that the value of the trust-held assets was subject to equitable distribution, the case remanded for the recalculation of the wife's share of the marital estate, and otherwise affirmed, without costs.

While a trial court has broad discretion in fashioning an equitable distribution award, that discretion is not unlimited.  Courts must respect the parties' economic decisions made during the marriage, and may not disregard the legal character of property based solely on equitable concerns.  As the Court of Appeals has emphasized, courts should not second-guess how parties chose to structure and allocate their assets during the marriage (see Mahoney–Buntzman v. Buntzman, 12 NY3d 415, 420–421 [2009] ).  Consistent with this principle, assets transferred to valid, irrevocable trusts for third-party beneficiaries are not subject to equitable distribution absent evidence that the trust is a sham or that a spouse retains revocation power or a beneficial interest (see Hofmann v. Hofmann, 155 AD3d 442, 442 [1st Dept 2017];  see also Oppenheim v. Oppenheim, 168 AD3d 1085, 1087–1088 [2d Dept 2019], lv dismissed 34 NY3d 974 [2019] ).

Here, it is undisputed that the trusts were irrevocable and that neither spouse retained a beneficial interest.  Indeed, the trial court expressly found that the trusts were not a sham and were valid estate-planning vehicles intended to benefit future generations.  Moreover, the wife knowingly participated in the creation of the trusts, met with counsel, reviewed explanatory materials, and understood that she was transferring marital assets beyond her ownership.  That the trusts' designation as intentionally defective grantor trusts caused the grantor—here, the husband—to be treated as the owner for income-tax purposes and retain limited administrative power does not change the result because that designation is purely tax-driven and does not confer any beneficial interest in, or ownership of, the trust assets (Bogert's The Law of Trusts and Trustees § 264.10 [May 2026 Update] ).  The husband's involvement in the administration of the trusts and incidental benefits, such as below-market housing and payment of select expenses, also does not establish the type of ownership interest required under New York law to include trust assets in the marital estate.  The trial court, therefore, should not have included the value of the trust assets in the marital estate subject to equitable distribution.

As noted by the trial court, the husband was evasive during the litigation, violated court orders to refrain from transferring assets, and prevented the court from ascertaining the amount of marital property at issue.  The record reflects that the husband derived and continues to derive certain benefits from his involvement in the administration of the trusts.  However, those benefits, as well as the husband's conduct, may be considered in determining the extent of the unequal distribution of the non-trust assets pursuant to Domestic Relations Law § 236(B)(5)(d) (see Maharam v. Maharam, 245 A.D.2d 94, 94 [1st Dept 1997] [where the Court resolved issues related to the composition and valuation of the marital estate and equitably distributed those assets as evidence existed that the husband secreted assets in a foreign bank account preventing an accurate assessment of the marital estate, and squandered sizeable funds] ).

While our dissenting colleague correctly notes that this Court may make its own determination, as was done in Maharam, here, the trial court, which explicitly relied heavily on Domestic Relations Law § 236(B)(5)(d)(16), is in the best position to reevaluate equitable distribution.

Additionally, the husband identifies potential objective mathematical or duplicative counting of the same assets, including the inclusion of postcommencement distributions alongside the value of accounts holding those funds, and the valuation of financial accounts prior to their use to purchase real property while also including the full value of that property.  Thus, given the complexity of the parties' financial arrangements, the fact that the Park Avenue apartment appears to have been sold, the lack of clarity in the record regarding certain transactions, and the trial court's ambiguous treatment of the charitable foundation assets, the matter is remanded to the trial court for recalculation of the nontrust assets.

The award of counsel and expert fees to the wife was a provident exercise of the court's discretion.  The trial court expressly relied on multiple permissible factors, including the husband's status as the more monied spouse during the proceedings, the complexity of the parties' financial circumstances, and his litigation conduct (see Domestic Relations Law § 237;  DeCabrera v. Cabrera–Rosete, 70 N.Y.2d 879, 881 [1987];  Todres v. Freifeld, 151 AD3d 569, 572 [1st Dept 2017], lv denied 30 NY3d 912 [2018] ).  Moreover, the husband failed to preserve any challenge to the reasonableness of the fees because he did not meaningfully contest them at trial (see Winter v. Winter, 50 AD3d 431, 432 [1st Dept 2008] ).  Additionally, the trial court considered that the wife did not seek fees incurred after January 2023—including six days of trial and posttrial work—and found that the husband's violations of the automatic orders and his cavalier and controlling conduct warranted a substantial award (see Yentis v. Yentis, 218 AD3d 418, 420 [1st Dept 2023] ).

Given that the custody stipulation providing for equal parenting time was never modified or vacated, the court's finding that the husband was the monied spouse, and the absence of clear, quantified evidence showing a sustained deviation from equal parenting time, the award of child support to the wife was proper (see Rubin v. Salla, 107 AD3d 60, 68 [1st Dept 2013] ).

I agree with the majority that the trial court's awards of child support and counsel and expert fees to the wife should be affirmed.  I also agree that we are constrained by existing law from including trust assets in the marital estate for purposes of equitable distribution (see Hofmann v. Hofmann, 155 AD3d 442, 442 [1st Dept 2017][“In general, trust assets are not considered marital property subject to equitable distribution where ․ the parties are not trustees and have relinquished control over the trust assets”] ).  However, I disagree that we should remand this eight-year-old divorce action to the trial court for recalculation of the wife's share of the marital estate for two reasons.

First, as the trial court found, due to the husband's improper conduct, including his postcommencement transfers of marital assets in violation of court orders and his failure to respond to the wife's subpoenas, the trial court did not have a full picture of the party's finances, particularly with regard to trust assets.  In particular, the court found that the husband failed to produce documents related to the trusts' “purchase of property and payment of expenses” (C.S. v. R.H., 87 Misc3d 1201[A], 2025 N.Y. Slip Op 51426[U], *16 [Sup Ct, N.Y. County 2025] ).  Under these circumstances, it is unlikely that a remand will lead to any clearer picture of the marital assets and their appropriate distribution than the trial court already reached in its detailed posttrial decision, including its discussion of the statutory equitable distribution factors and its finding that, during the marriage, “[t]he family lived off the Trusts;  the entire family life is structured around them ․ the Court can and does conclude that the Trusts paid all of the family expenses—including but not limited to those for the Park Avenue Home” (C.S., 2025 N.Y. Slip Op 51426[U], *23).

Second, in my view, and as discussed further below, a remand is unnecessary, just as it was unnecessary in Maharam v. Maharam (245 A.D.2d 94, 94 [1st Dept 1997];  see also Kobylack v. Kobylack, 62 N.Y.2d 399, 403 [1984];  Majauskas v. Majauskas, 61 N.Y.2d 481, 493–494 [1984];  Wechsler v. Wechsler, 58 AD3d 62, 72 [1st Dept 2008], appeal dismissed 12 NY3d 883 [2009] ).  Accordingly, I respectfully dissent.

The trial court attempted to evade the legal principle this Court articulated in Hoffman by directing the husband to pay the wife a distributive award representing a portion of the value of trust assets, in addition to distributing to the wife 100% of the marital nontrust assets other than a boat and home in Sun Valley, Idaho which the husband purchased after commencement.  I agree with the majority that, as a matter of law, we may not affirm the distributive award because it was based on the trial court's inclusion of the value of the trust assets in the marital pot when calculating the amount available for equitable distribution.  However, I would affirm the award to the wife of 100% of the nontrust assets listed on pages 39 and 40 of its order, inclusive of any increase in the values of those assets between the date of trial and the time of distribution.  This award is based on the trial court's factual finding, to which we must defer (see Culman v. Boesky, 207 AD3d 18, 22 [1st Dept 2022], lv denied 39 NY3d 907 [2023] ), that the husband committed egregious economic fault.  I would find that, in awarding the nontrust asets to the wife, the trial court appropriately exercised its broad power to fashion an equitable distribution award that is proper under the circumstances (see Mahoney–Buntzman v. Buntzman, 12 NY3d 415, 420 [2009] ) by applying the statutory criteria for equitable distribution to the court's detailed factual findings (Domestic Relations Law § 236[B][5][d] ).

This Court may modify a trial court's award by applying the criteria for equitable distribution to the facts found by the trial court and established by the record (see Kobylack, 62 N.Y.2d at 403;  Majauskas, 61 N.Y.2d 481, 493–494; Wechsler, 58 AD3d at 72;  Maharam, 245 A.D.2d at 94–95).  Here, I would modify the trial court's equitable distribution award in two respects.  First, consistent with the majority's position, I would vacate the directive that the husband pay to the wife a distributive award representing a share of the value of the assets held in trust, as those assets are not subject to equitable distribution.

Second, as the wife concedes on appeal, the trial court's order contains an incorrect value for the nontrust asset “Drawbridge Funds 2109 RCA Withheld Distributions.”  The court listed the value as $4,432,168.  The correct value is $3,432,168.  Accordingly, the trial court overvalued the nontrust assets by $1,000,000.¹  The court should have found that the total value of the marital nontrust assets is $69,243,473.  However, remand to recalculate the award of the nontrust assets to the wife would be unnecessary, since the parties agree on the value of this asset and the wife would receive 100% of this and other specific assets listed in the trial court's order.

 Facts

 Credibility

We defer to the trial court's findings on credibility (see Culman, 207 AD3d at 22).  Here, the trial court found that the wife's testimony was “clear, consistent and straightforward ․ [and] highly credible.”  In particular, the court credited her testimony that she executed trust instruments based on the husband's assurances that they were “tax shelters” and that the parties would continue to use and enjoy trust assets during their lifetimes, and based on her reasonable belief that he would continue to manage the family finances for her benefit and the benefit of their children.  The trial court also found that she reposed this faith in her husband without the benefit of legal advice or representation, which she was never offered or told that she needed.²  The attorney who drafted the trust instruments and set up the corporate entities that the husband used to transfer marital assets into the trusts met exclusively with the husband except on three occasions when the wife was asked to be present to execute each of the trust instruments and to sign documents appointing the husband as investment advisor to certain corporate entities.  The husband never provided the wife with the trust instruments or the corporate documents until the day that he arranged for her to sign them.

Conversely, the trial court found that the husband was arrogant, and

“gave the impression that he need not account to anyone for any of his conduct as it relates to his wealth, his financial decisions, and his family.  He did not testify at any length or with any great detail about the family life throughout the marriage, or his relationship with [the wife].  He did not refute [the wife's] testimony about her contributions to the marriage, that she was the primary caregiver of the four daughters, or any specifics of their home life and lifestyle” (C.S., 2025 N.Y. Slip Op 51426[U], *3–4).

The court also found that he “lacked credibility on the core financial issues, specifically as to the critical matter of his control over the Trusts.”  The court also found that his testimony was internally inconsistent with, and flatly contradicted by, the documentary evidence.  Despite the husband's attempts to deny that he controlled the trusts, he admitted that “he alone decided who to appoint and remove as Trustee and Managing Director of the LLCs and which assets went into the Trusts and when, and that he alone set the below-market rents for the Trust properties in which the family lived.”

 History of their marriage and life together

The parties married in 1994 and have four children.  At the date of marriage, the wife was 26 and earned $52,000 per year as a financial reporter.  The husband was 34 and earned $2 million per year as an equity partner in an investment firm.

In 1995, the family moved to London, at the husband's request, in order to support his career.  The wife acquiesced in this decision, even though it required her to leave a job that she loved.  The parties and their children spent years living in Europe and returned to the United States only when the husband decided that they should.  Throughout the marriage, the wife cared for their children, including taking primary responsibility for providing their children the best education possible wherever they were living at the time and ensuring that the children became bilingual when the family lived abroad.  She attended to their children's medical care, and bore the primary responsibility for addressing one child's special medical and learning needs, which were ultimately resolved.  The wife helped to create, furnish, and maintain the family's multiple luxurious homes.  She also supported the husband, including caring for him during two major medical crises, and deferred to the husband's wishes on most issues even when doing so meant giving up her own career opportunities.  The husband, “a hands-on” financial professional, managed the family's finances.

 The Goldman Sachs Buyout and the Parties' Subsequent Employment

In September 2000, Goldman Sachs acquired the husband's firm.  As a result, the husband received Goldman stock worth approximately $120 million, which the husband concedes was marital property,³ and was required to work for Goldman for two years.  The husband then “retired” in 2002 at the age of 42.  At the time of trial, however, he identified his occupation as “executive,” and reported annual earnings of between $555,949 and $6,718,301 between 2016 and 2022.  In contrast, at the time of trial, the wife had last been gainfully employed outside the home in 2004 when she earned $26,000 per year.  She also had a yoga business that reported a $30,000 loss in 2021.

 The Children's Trust and the Grandchildren's Trust

In March 2001, the husband formed the R.H. Generation Skipping Trust for the benefit of future grandchildren (the Grandchildren's Trust) and the R.H.2001 Family Trust for the benefit of the parties' children (the Children's Trust).  Under the trust instruments, the husband, as grantor, had the power to appoint and remove the trustee at will.  Initially, he named the wife the trustee of both trusts.  However, in 2004, the husband removed the wife as trustee and appointed her sister.  After commencement of the divorce action in 2018, the husband removed the wife's sister and appointed as sole trustee his good friend Todd Stuart with whom he had worked at his former investment firm.

Over the years, the husband utilized complex financial transactions through a network of grantor retained annuity trusts (GRATs) and limited liability companies (LLCs) to transfer most of the marital assets into the trusts.  The wife testified credibly that she did not understand or did not know about virtually all of these transactions.

Almost immediately after receipt of the Goldman buyout, the husband transferred $83 million of the $120 million buyout into the Grandchildren's Trust through the RH Family LLC.⁴

The husband used six additional LLCs that he formed between 2004 and 2016 to transfer into the Grandchildren's Trust the family's estates on Shelter Island and in Hampton, New York;  the family's Shelter Island investment property, which the parties also used for family celebrations and charity events hosted by the parties;  and an 85% interest in a firm specializing in electronically traded funds (ETFs) which the husband had acquired with marital funds.

As with the trusts, the husband had sole authority under the LLC operating agreements to appoint or remove the managing director of the LLCs. As LLC investment adviser, the husband also had “sole and absolute discretion” to manage LLC property, including the power to sell and purchase property.

In 2004, the husband named the wife managing director of four LLCs:  (1) the 2004 Mont Blanc Holdings LLC, (2) the 2006 American Direct LLC, which owns the family's Shelter Island estate;  (3) the 2014 Pandion Acquisitions LLC, which owns the Shelter Island investment property;  and (4) the 2016 Hogan's Hill LLC, which owns the family's Hampton, New York residence.  Mont Blanc owned the other three LLCs of which the wife was named managing director as well as the 2011 Cottonwood ETF Holdings, LLC, which owns a majority interest in the ETF firm.⁵  By the date of trial, the Grandchildren's Trust owned 100% of Mont Blanc.

The trial court found that the wife did not know anything about the duties or responsibilities of a managing director and she was never advised to consult with a lawyer about these matters, even when she was removed as trustee and appointed as managing director of four LLCs in 2004.  The trial court further found that she testified credibly that she trusted the husband's representations that her ability to continue to use and enjoy the trust assets was protected even after the husband removed her as trustee.

The husband transferred the balance of the funds from the Goldman buyout into the Children's Trust through two GRATs, which the husband created in 2001 and 2002, naming himself as trustee.  By their terms, each GRAT terminated after two years and the husband transferred their assets to the Children's Trust.  The trial court found no evidence that the wife had any involvement in the creation or management of the GRATs, and further found that the wife testified credibly at trial that she did not know what a GRAT is.

During the marriage, the wife had no reason to disbelieve the husband's assurances that the parties would continue to use and enjoy trust assets throughout their lifetimes, since, for nearly two decades, the family's luxurious lifestyle was made possible through trust assets.  The family resided in the Hampton and Shelter Island estates either for free or for well below market rents, and used the Shelter Island investment property for family events and fundraising galas hosted by the parties.  In addition, the husband used trust assets to pay all of the family's expenses, including expenses for the family's New York City residence which was not part of any trust.

 The Husband's Postcommencement Transfers of Trust Assets

As the trial court found, after the wife commenced this action in 2018, the husband engaged in “a systematic effort to ․ cut [the wife] off from the marital assets and out of the family wealth ․ and evict her from [the family] homes without court approval or any notice.”  He did so in four steps.

First, in June 2019, the husband exercised his exclusive authority as grantor of the Children's and Grandchildren's Trusts to remove the wife's sister as trustee and replace her with his close friend, Todd Stuart.  At the same time, the husband exercised his exclusive authority as investment advisor to remove the wife as managing director of the four LLCs that owned the parties' residences and a majority interest in the ETF firm.  He replaced the wife with another close friend of his, Brian Haklisch, and, later, the husband's sister.

The trial court found the husband's explanations for these acts incredible, and further found that the husband's “true motive ․ was to replace [the wife and her sister] with people who would follow his mandate, maintain his control over the Trust assets, cut [the wife] out of the family's wealth and strip her of any influence over the marital assets in the Trusts while he continued – and continues – to fully utilize and enjoy the benefits of those assets.”

Second, on November 25, 2019, the husband directed Mr. Stuart to decant the assets from the Children's Trust into the Grandchildren's Trust, and he did so.  Had the husband not emptied the Children's Trust, each child would have been entitled to distribution of their share of trust assets when they reached the age of 30.  As the trial court found, this act, which was done without notice to the wife, the attorney for the children, or the court, “secured [for the husband] financial influence and power over the children indefinitely” because the children's only access to family assets would now be through their father' beneficence.  The husband also gave consent on behalf of the parties' minor children to decant the Children's Trust assets into the Grandchildren's Trust.  This was a blatant violation of the parties' December 2018 custody agreement, which provides that the parties jointly make all major decisions for the children.

Third, the husband forced the wife out of the family's Shelter Island and Hampton, New York homes during the pandemic.  In March 2020, the parties and their children were living in the Shelter Island home full time.  The husband stayed primarily in the main house, and the wife stayed in the guest house.  This allowed them to enjoy the parenting time schedule established by their custody agreement.  That same month, Mr. Stuart, at the husband's direction, terminated the parties' leases of the Shelter Island and Hampton homes and executed new leases at below-market rates to the husband alone.

In addition to the lease change, the husband embarked on a campaign to drive the wife out of the parties' Shelter Island and Hampton homes.  He emptied the wife's Hampton home closet of her belongings and replaced them with a picture of his new girlfriend.  He repeatedly and angrily demanded that the wife get out of “his” house, including on the wife's birthday and in the presence of the parties' youngest child, who was 11 at the time.  He replaced the sign at the entrance to the Shelter Island estate which listed both parties' names with a sign containing his name only.  He bulldozed the vegetable garden that the wife and children had cultivated together.  He changed the alarm code to the Shelter Island home, moved the keys from their customary location, and changed the locks to the guesthouse.  When the wife tried to enter, the alarm went off and she had to explain to the police that she was not an intruder.  Ultimately, the wife was forced to rent a much smaller home so that she could stay close to the children and exercise her 50–50 parenting time under the parties' custody agreement.  The court credited the wife's testimony that the husband's cruelty during this period caused her to relapse into alcohol use disorder, for which the wife attended a rehabilitation program in 2021.

Finally, in 2023, during the trial of this action, and without notice or approval by the wife or the trial court, the husband decanted the Grandchildren's Trust assets into two new generation-skipping trusts under Delaware law.  The husband's trust and estates lawyer testified that, because there is no rule against perpetuities under Delaware law, generation skipping trusts “go on forever” and their assets need never be distributed to the nominal beneficiaries.  This further underscores the accuracy of the trial court's finding that the husband retains total control over, and continues to benefit from, the trust assets.  Indeed, the husband is the investment advisor for the new trust that owns the family's real properties in Shelter Island and Hampton, New York. As such, he has even more power than he had under the Grandchildren's Trust, including the express ability to direct the trustees' actions.

Furthermore, the trial court found that the husband violated the automatic orders by making two major purchases for himself postcommencement, using marital assets, without the wife's consent or court authorization.  In 2022, he purchased a boat for $185,000.  In the middle of trial, in 2024, he purchased a home in Sun Valley, Idaho for $4,150,000 and relocated there, without even advising the wife or the court.

The husband also failed to respond to the wife's trial subpoenas, depriving the court and the wife of a full picture of the parties' financials.

In sum, the trial court found that:

“The ample, undisputed proof establishes that the majority of the marital assets were placed in the Trusts to protect the family's wealth for future generations while also funding every aspect of the family's present life․  Almost immediately after receipt of the Goldman Sachs buy-out, [the husband] transferred into the GST $83 of the $120 million of the cash and stock – nearly 70% of the parties' marital assets.  Over time, he transferred the rest of the [Goldman buyout] marital assets into the Trusts ․ [and] added more of their marital assets [to the trusts].  They used their valuable lifetime gift tax exemptions to reduce or defray the taxes on the transfers into the [Grandchildren's Trust]․  They received promissory notes at deep discounts to the value of the assets transferred to the Grandchildren's Trust, and then [the husband] forgave some of the debt due under the notes.  The parties paid taxes on the income generated by the Trusts from their non-trust money.  In exchange the Trusts provided the family with breathtaking homes and an affluent lifestyle.

Post-commencement, [the husband] unequivocally, unreservedly and unilaterally cut [the wife] out of the Trusts, removed her as Managing Director of the LLCs, terminated her access to trust accounts, kicked her out of her homes with all of their attendant luxury accommodations, and cut her off from the family lifestyle.  His transfer of the parties' remaining interest in Mont Blanc to the [Grandchildren's Trust], decanting of the [Children's trust] into the [Grandchildren's Trust] and then the [Grandchildren's Trust] into the [newly created post-commencement trusts], unauthorized distributions of marital assets to the tune of $21,800,0000, assumption of total control over the [parties' charitable foundation], and purchase of the Sun Valley Home and 2022 Boat with marital assets, violated the Automatic Orders as well as specific orders of the court which denied his request to do so․  [The husband] failed to fully respond to [the wife's] trial subpoena․  These violations and bad-faith post-commencement conduct amount to egregious economic fault” (C.S., 2025 N.Y. Slip Op 51426[U], *66–67, *88).

The trial court concluded that the husband's actions supported distribution to the wife of 100% of the marital nontrust assets as well as a portion of the value of the trust assets, which the trial court directed him to pay as a distributive award to the wife over a period of 10 years under the “statutory catchall ‘just and proper’ factor” (Domestic Relations Law § 236[B][5][d][16] ).⁶  While I agree with the majority that distribution of the value of the trust assets was improper, for the reasons discussed below, I would find that the husband's actions and the equities in this case support the trial court's distribution of 100% of the remaining nontrust marital assets, including all accrued interest and other increases in value to the financial and investment accounts, to the wife

 Analysis

“[E]quitable distribution does not require equal distributions.  More precisely, our precedents provide courts with a great deal of discretion in distributing assets, and, in particular, support a wide range of appropriate distributions” (Culman, 207 AD3d at 25).  Here, the trial court properly considered the equitable distribution factors (Domestic Relations Law § 236[B][5][d] ) and, under the circumstances of this case, properly awarded the wife 100% of the nontrust assets, including any increase in value of investment and bank accounts.

As the trial court found, an unequal distribution of marital nontrust assets is equitable here for four reasons.  First, the husband will continue to enjoy the use of and total control over all of the marital assets that he poured into the trusts largely without the wife's knowledge or involvement.  Second, and in contrast, the wife will no longer enjoy any access to those assets, contrary to the parties' practice during their two decades of marriage.  Third, the wife's exclusion from the use and enjoyment of these assets is grossly inequitable in light of the wife's extensive direct and indirect contributions to the marriage.  Finally, the trial court found that the husband's postcommencement violation of trial subpoenas and bad faith postcommencement conduct in violation of the automatic orders and the court's direct orders constituted egregious economic fault (Domestic Relations Law §§ 236[B][5][d][1], [2], [7], [16] ).

Consideration of the statutory factors governing equitable distribution supports distribution of the entire marital estate to the wife.  At the time of their marriage in 1994, the wife, then 26, was earning $52,000 per year as a financial reporter.  The husband, then 34, earned $2 million per year as an equity partner and financial professional at an investment firm.  He also owned a 200 acre property in New York, close to the Vermont border;  the wife had no significant assets.  The trial court found that the husband's income always dwarfed the wife's.  By the time of trial, the wife was 55 and had a yoga business that lost money.  She had not been employed since 2004, when she earned $26,000.  In contrast, the court imputed to the husband income of nearly $3 million annually based on his average reported earnings in the five years before trial.  In addition, the court found that the husband could also earn a salary at his ETF firm and as investment advisor for the postcommencement trust, but chose not to do so.  The court also found that the parties' living expenses were funded by the trusts (Domestic Relations Law §§ 236[B][5][d][1] and [2] ).

As a result of the Goldman buyout, the family owned three Manhattan apartments and investment accounts with a total value of approximately $69 million.⁷  The husband placed the majority of the remaining marital assets, with a total value of approximately $111 million, into the trusts, largely without the wife's involvement or knowledge (Domestic Relations Law § 236[B][5][d][1] ).  Furthermore, during the marriage, the family's lavish lifestyle was funded by marital assets the husband had poured into the trusts.  Postcommencement, the husband completely cut the wife off from those assets while continuing to enjoy them himself.  At the time of trial, he continued to reside at both the Shelter Island and Hampton, New York homes.  The wife will also lose inheritance rights and health insurance upon entry of the divorce (Domestic Relations Law §§ 236[B][5][d][4], [5] ).  As a result, the husband's future financial circumstances are commensurate with the lifestyle the parties enjoyed throughout the marriage, while the wife's will be greatly diminished, by orders of magnitude, in the absence of an award to her of all of the marital assets that the husband did not pour into the trusts (Domestic Relations Law § 236[B][5][d][9] ).⁸  This would be particularly inequitable in view of the wife's enormous direct and indirect contributions to this nearly 24–year long marriage, including her having given up career opportunities at the husband's request in order to care for the children and support the husband's career, nursing the husband through a life-threatening catastrophic injury in 2004 and serious illness in 2015–2016, and her substantial role in the acquisition and development of the parties' luxurious homes (Domestic Relations Law §§ 236[B][5][d][2], [7] ).

Although the law permits unequal distribution of assets under these circumstances, the trial court declined to award the wife a greater share of the marital assets, which it considered to include the value of the trust assets, only “because the value of the assets within the [trusts] will be considered in the marital estate and distributed equitably;  in other words [the wife] will receive fair consideration for her share of the Trust assets by this award.”  I agree with the majority that this was improper.

However, the catchall factor provides “substantial flexibility [to] fashion[ ] an appropriate decree based on what i[s] ․ fair and equitable under the circumstances” (Mahoney–Buntzman, 12 NY3d at 420).  Here, given the trial court's findings as to the equitable distribution factors (Domestic Relations Law § 236[B][5][d] ), including its finding that the husband's violations of subpoenas and other bad faith postcommencement conduct constitute egregious economic fault under the catchall factor, I would affirm the court's distribution of 100% of the nontrust assets to the wife (other than the boat and Sun Valley home he bought postcommencement) (see Branche v. Holloway, 124 AD3d 553, 554 [1st Dept 2015] [unequal equitable distribution based on the husband's egregious economic fault];  Stewart v. Stewart, 133 AD3d 493, 494 [1st Dept 2015], lv denied 26 NY3d 919 [2016] [unequal equitable distribution based on the wife's egregious economic fault];  Mohamed v. Abuhamra, 222 AD3d 1344, 1346–1348 [4th Dept 2023] [affirming award to the wife of 100% of the known marital assets based on the husband's egregious economic fault, including his disregard of court orders and other actions making it impossible for the court to accurately determine facts relevant to equitable distribution];  Gafycz v. Gafycz, 148 AD3d 679, 680 [2d Dept 2017] [affirming award to the wife of 100% of two real properties and 50% of the husband's marital one-half interest in property he purchased with his father during the marriage based on the husband's secreting of assets, violation of court orders, and evasive testimony];  Ropiecki v. Ropiecki, 94 AD3d 734, 735–736 [2d Dept 2012] [affirming award to the wife of 100% of the equity in the marital residence and directing the husband to pay off the mortgage, holding that, during the parties' 27 year marriage, the wife stayed home to care for their children, resulting in her limited earning potential at the time of divorce] ).

Furthermore, I disagree with the majority that the trial court relied “heavily” on the catchall factor (Domestic Relations Law § 236[B][5][d][16] ).  Rather, in its detailed consideration of each of the equitable distribution factors, it cited the catchall factor only once (see C.S., 2025 N.Y. Slip Op 51426[U], *89).  Moreover, the fact that the trial court relied on the catchall factor to any degree does not make it any less appropriate for this Court to decide equitable distribution.  In any event, the trial court's findings support distribution to the wife of 100% of the marital assets.

The court found that the husband's management of the trusts during the marriage resulted in payment of all of the family's expenses, and that the husband completely cut the wife off from access to any of the properties owned by the trusts and payment of her expenses from trust assets after commencement of the divorce action, while retaining those benefits for himself.  The wife's net worth statement in evidence listed her monthly expenses as $125,175 per month.  The husband's listed his as “approximately” $97,325.  Unlike the wife's net worth statement, the husband's did not include many expense items, including expenses for the parties' New York City residence, utilities other than phone, unreimbursed medical, automobile, or any expenses for the minor children.  The court found that the parties' standard of living during the marriage was “luxurious,” that “the Trusts provided the family with breathtaking homes and an affluent lifestyle,” including luxury vacations, high-end activities such as heli-skiing and mountain climbing, luxury homes in multiple countries, an art collection, and boats and other watercraft.  The court found that “the family expenses and lifestyle was funded ․ by the Trusts” (C.S., 2025 N.Y. Slip Op 51426[U], *4–5, *10,*22).  The court further found that the husband continues to have total access to and control over the trust assets worth $111 million (including the parties' Shelter Island and Hampton estates), and the wife does not.  Under these circumstances, the only way the wife can enjoy anything close to the marital lifestyle, particularly given the parties' relative earning capacities and the loss by the wife of health insurance and inheritance rights, is by affirming the trial court's award to the wife of the entirety of the nontrust assets worth $69 million.

Accordingly, for all of the reasons discussed above, I disagree with the majority that this Court should remand the matter to Supreme Court for recalculation of the wife's share of the marital estate.

Finally, I disagree with the majority that there is any need to remand this matter to the trial court for further consideration of the husband's claims that the court made mathematical errors or “double-counted” certain assets.  First, to the extent that he argues that the court made such errors with regard to trust assets, there is no need to remand for recalculation of the values of those assets because the trust assets are not subject to equitable distribution.

The husband makes four claims about the court's distribution of nontrust assets.  As discussed above, only one has any merit and it does not require remand.  The court's order contains a typographical error in the value for “Drawbridge Funds 2109 RCA Withheld Distributions.”  As discussed above, this resulted in an overvaluation of the nontrust assets by $1,000,000.  However, it does not require recalculation, as the parties agree on the actual value of this account.  I find that none of the husband's other three claims is supported by the record or requires remand.

First, he claims that the trial court erred by including in the nontrust assets to be distributed to the wife some portion of the husband's pre-trial distribution to himself of $10,950,000, which he now claims he deposited into the RH Revocable Trust accounts to be distributed to the wife.  This claim fails for two reasons.  First, the husband failed to present any evidence demonstrating that he in fact deposited those funds into any of the RH Revocable Trust accounts or any other known accounts.  The RH Trust accounts contained a total of $7,875,416 at the time of trial.  Thus, even if they were intended to pay for the husband's ordinary needs pendente lite, he apparently did not need them and they should be distributed to the wife as directed by the court.  Second, as the trial court found, the husband made this distribution (and others) unilaterally, without leave of the court, and in violation of the automatic orders.  Specifically, the court found:

“As of October 17, 2022, he distributed $21,800,000 in marital assets – $10,950,000 to himself and $10,850,000 to [the wife] – without any accounting as to the non-trust assets or investments that funded those distributions.  [The husband] also did not demonstrate how the distributions were required to fund legitimate household or living expenses for either party.  As far as the record shows, the post-commencement family expenses for [the husband and the parties' children] were funded by the [Grandchildren's Trust].  [The husband's] testimony that he made the distributions of non-trust marital assets in order to avoid claims that he mishandled investments belonging [to the wife], is not credible – indeed, it flies in the face of his financial expertise.”

Accordingly, there is no reason to remand the husband's claim as to these funds for further consideration, as the trial court already addressed this claim in its order.

Next, the husband similarly claims that the court included in the accounts to be distributed to the wife “over $3.7 million” from the RH Revocable Trust accounts that the husband used to purchase a home in Sun Valley for himself for $4.15 million postcommencement and without authorization.  However, the husband failed to present evidence at trial about what funds he used to purchase the Sun Valley residence.  In any event, the court expressly distributed to the husband the Sun Valley home.  To the extent that the court listed an inaccurate value for the RH Revocable Trust accounts, the court's order provides that 100% of those accounts be distributed to the wife, along with any increase since trial, regardless of their precise present value.  Therefore, there is no need to remand to the court for recalculation.

Finally, the husband argues that the court should not have directed that the wife receive 100% of the value left in the parties' charitable foundation accounts because that “could result in severe tax penalties ․ for self-dealing and loss of tax-exempt status by the foundation.”  However, the wife counters that she understands that the court's distribution of the accounts to her is not so that she can use those funds for herself, but rather so that the wife can control the foundation going forward.  This is clear from the court's finding that, following commencement of the divorce action, the husband “cut her out of decisions” about the foundation and disposed of approximately $1.5 million of foundation funds pendente lite, without authorization and without giving any accounting of what happened to those funds.  Accordingly, there is no need to remand this issue to the court.

Neither the majority's decision nor the result I propose will satisfy anyone.  It is likely that the husband will continue to believe that he is entitled to 50% of the nontrust assets, and that the wife will continue to feel betrayed by the husband's actions, no matter what the ultimate outcome.  The best that we can do is to bring this matter to a close, by using our equitable powers to apply the criteria for equitable distribution to the facts already determined by the trial court, without requiring further lengthy court proceedings.  We can only hope that the parties' four daughters have not been scarred by the animosity that pervaded the dissolution of their family's charmed life.

FOOTNOTES

1.   As discussed further below, I disagree with the majority that the record does not permit this Court to address the husband's claim that the trial court made additional errors in calculating the values of various assets or double-counted assets, and would find, as more fully discussed below, that the husband's other claims lack merit.

2.   Had the husband prepared and had the wife sign a postnuptial agreement that effectively gave the husband exclusive control and enjoyment of the lion's share of marital property upon divorce to a degree comparable to what the husband accomplished in this case, it might well have been vulnerable to a motion to vacate it as unconscionable or the result of overreaching or other inequitable conduct.  Matrimonial agreements are “subjected to limitations and scrutiny beyond that afforded contracts in general” (Kessler v. Kessler, 33 AD3d 42, 46 [2d Dept 2006], lv dismissed 8 NY3d 968 [2007];  see also Christian v. Christian, 42 N.Y.2d 63, 71–73 [1977]; Barocas v. Barocas, 94 AD3d 551, 551–552 [1st Dept 2012], appeal dismissed 19 NY3d 993 [2012] ).  Several of the factors courts consider in determining unconscionability in matrimonial agreements were present here, including detrimental reliance on the part of the less-monied spouse, the relative financial positions of the parties, the greater knowledge and influence of the spouse proposing the agreement, and the absence of separate, independent counsel for the less knowledgeable party (see Matter of Greiff, 92 N.Y.2d 341, 345 [1998];  Maddaloni v. Maddaloni, 142 AD3d 646, 649–650 [2d Dept 2016] ).  Here, the documents the husband had the wife sign were not entitled “postnuptial agreement,” and, unlike a matrimonial agreement, made no mention of the parties' rights upon divorce.  Accordingly, without independent legal counsel, the wife had no way of understanding or even considering the effect of these documents in the event of divorce.

3.   The trial court found that the husband had no direct involvement in the buyout negotiations and his payout was not the result of any of his specific work.

4.   The husband formed the RH Family LLC in February 2001.  In March 2001, he funded it with $1,194,738 in marital cash and 208,667 shares of Goldman stock worth $18,621,443, and then sold a 99% interest in the RH Family LLC to the Grandchildren's Trust for a promissory note in the amount of $11,600,000 (a 41.5% discount on the market value of the GS stock).  The husband later forgave much of the promissory note.  The husband dissolved the RH Family LLC in 2004.  Its assets, worth in excess of $20 million, remained in the Grandchildren's Trust.  There is no evidence in the record that the wife had any involvement in, or was even aware of, the RH Family LLC.

5.   The husband, who had experience with ETFs in his former firm, is managing director of Cottonwood.  The ETF firm has offices in Oklahoma and Manhattan, employs dozens of people, and its Board of Trustees is comprised of the husband and people he worked with at his former firm and at Goldman.  The husband chooses not to draw a salary, but may do so and is actively engaged in firm management.

6.   The trial court noted that the husband could pay the distributive payments from his earnings, borrowing against trust assets to provide funds for himself under his expanded trust powers, if necessary, and paying back any loan from his income as investment advisor to the trust and as ETF firm partner (C.S., 2025 N.Y. Slip Op 51426[U], *86).

7.   Because the parties' youngest daughter will soon be emancipated, neither party has a need to occupy or own the marital residence.  In any event, the trial decision reflects that the parties had signed a contract of sale for their Manhattan home (Domestic Relations Law § 236[B][5][d][1] ).the

8.   The wife has not sought and was not awarded maintenance (Domestic Relations Law § 236[B][5][d][6] ).

All concur except Gesmer, J. who dissents in part in a memorandum as follows: