A.S., Plaintiff, v. M.S., Defendant. (2023)

On March 20, 22, 24, 27, and 29, 2023, the Court presided over a trial as to financial issues including, inter alia, spousal maintenance, child support, and equitable distribution. The Court rendered a decision and order as to the issues of custody and access on February 15, 2023, whereby the parties share joint legal custody of their three (3) children with residential custody to Plaintiff. After considering the sworn testimony of the parties—who were the only witnesses to testify at the financial trial, the credibility of the witnesses, the documents admitted into evidence, and the post-trial submissions submitted by the parties on April 5, 2023,¹ the Court hereby makes the following findings of fact and reaches the following conclusions of law:

Factual And Procedural History

The Court refers to its February 15, 2023 Decision and Order (“February Decision”) (NYSCEF Doc. No. 184) for a full recitation of facts and procedural history in this matter, and supplements said recitation as follows.

The parties were married on August 11, 2013, in New York. There are three (3) unemancipated children of the marriage: S.S. (born [Redacted]), S.S. (born [Redacted]), and S.S. (born [Redacted]) (the “Subject Children”). Plaintiff commenced this action on February 15, 2021, by filing a Summons and Complaint for dissolution of marriage pursuant to Domestic Relations Law (DRL) § 170(7). Relevant to the resolution of the instant financial issues is the Preliminary Conference held before Court Attorney-Referee [Redacted] on May 26, 2021. Pursuant to the Report of the Attorney-Referee (NYSCEF Doc. No. 10) and the Preliminary Conference Stipulation/Order (“PC Order”) signed by both parties, who were represented by counsel at the time, and entered by the Court (Loehr, J.) (NYSCEF Doc. No. 11), the parties agreed to, inter alia, joint legal custody (joint decision making) with residential custody to Plaintiff. The parties also agreed to list the marital residence for sale, that Defendant would pay $700 per week in child support to Plaintiff commencing on May 26, 2021, and that Plaintiff waives all claims for spousal maintenance. However, the PC Order reflects in a separate section that maintenance is unresolved. Despite the apparent resolution as to custody, the sale of the home, and maintenance, both parties engaged in subsequent motion practice for failure to adhere to the PC Order. On September 23, 2021, Plaintiff filed an Order to Show Cause seeking to vacate the provision of the PC Order regarding waiver of maintenance claims, and granting Plaintiff and the three children exclusive use and occupancy of the marital residence. NYSCEF Doc. Nos. 18—25. The parties attempted to resolve these issues and, ultimately the Report of Court Attorney-Referee [Redacted] recommended that, pursuant to an appearance on January 7, 2022, “[b]ecause maintenance is statutory and is presumptively awarded if the payee spouse qualifies, and because New York has a strong public policy in favor of resolving matrimonial issues on the merits, it is the recommendation of the undersigned that the preliminary conference stipulation and order be amended to reflect that maintenance is “unresolved” pending a trial or settlement of the action.” NYSCEF Doc. No. 65 at 2.

Plaintiff and the Subject Children continue to reside at the Marital Residence located at [Redacted] (“Marital Residence”). Pursuant to the February Decision, the Court directed the parties to maintain their respective primary residences within a 15-mile radius of the Subject Children's school. The Marital Residence was purchased during the parties’ marriage and the parties began residing there in 2018.

Plaintiff attended Lehman College and graduated in May 2021; thereafter, she worked per diem as a nurse. She began working as a registered nurse at [Redacted] Hospital in November 2021, after the youngest child, S.S., began attending school full-time in September 2021.

Plaintiff filed an updated statement of net worth (“SNW”), as well as her 2021 federal tax return, 2021 New York State tax return, and 2021 Connecticut tax return on November 28, 2022. See Pl. Ex. 56 (11/28/22 Updated SNW). Plaintiff's SNW states that her gross income is $90,240. She lists monthly expenses totaling $11,329.55; assets comprised of two bank accounts with a total balance of $610, her interest in the Marital Residence which was purchased for $762,500 on August 7, 2018, a 2019 Lexus, and her 10% interest in the parties’ business of [Redacted] (“[Redacted]”); liabilities totaling $64,307 for student loans, $591,000 for the mortgage on the Marital Residence at the date of commencement, $2,097.66 for an amount due for landscaping, and $3,712.25 due for S.S.’s nursery school tuition. Her SNW also states that she has, to date, paid her former counsel $2,000 and her current counsel a total of $14,000.

Defendant is presently employed as an account executive at [Redacted]; he also owns and operates [Redacted] (Defendant holds a 90% interest; Plaintiff holds a 10% interest); and has ownership interests in at least three properties in addition to the Marital Residence. Defendant presently resides at [Redacted].

Defendant filed a SNW on May 10, 2021 and, in contravention of this Court's Part Rules and the Matrimonial Part Rules, failed to file an updated SNW in advance of trial. At trial, Plaintiff made an application that a negative inference be taken as a result of said non-compliance and the Court reserved on the application. Defendant's May 2021 SNW states that his gross income is $135,000. See Pl. Ex. 40 (5/10/21 SNW). He listed monthly expenses totaling $7,050—which at the time, listed $2,500 for rent and $5,234 in mortgage forbearance; assets totaling $32,000 in bank accounts (comprised of two Wells Fargo checking accounts and one Wells Fargo savings account), his interest in the Marital Residence for which he lists $591,000 as the amount due on the mortgage, his separate property located at [Redacted] for which he lists $280,000 as the amount due on the mortgage, a property located at [Redacted] with an unknown value, three retirement accounts with a consolidated, approximate balance of $84,450, a 2019 Lexus, a 2007 BMW, watches and jewelry with an estimated value of $15,000, his 90% interest in [Redacted], and 50% interest in [Redacted] both with an unknown value. Defendant lists no liabilities.

Trial Proceedings

Testimony of Plaintiff Mother

Plaintiff testified that her financial circumstances have not changed since she signed her updated SNW, and she does not anticipate changes in the near future. Plaintiff has been working as a registered nurse at [Redacted] Hospital since November 2021; her working hours are approximately 8:45 a.m. to 6:30 p.m. She offered into evidence her 2022 W-2—which she received after uploading exhibits for trial—that shows her Medicare wages for 2022 equal $94,869.05. See Pl. Ex. 57 (Pl. 2022 W-2). Other than income derived from her current employer, Plaintiff had no other or additional income in 2022. Prior to her employment at [Redacted] Hospital, Plaintiff worked per diem for Private Care Solutions earning $47 to 48 per hour.

Plaintiff testified that each of the Subject Children have savings accounts held at Bank of America, and she is listed as the custodian for these accounts. See Pl. Exs. 8, 9, 10 (Subject Children UTMA Bank of America statements). Plaintiff asks that the Court leave these accounts as-is and allow Plaintiff to remain as the custodian on each of the three accounts.

Plaintiff owns a Lexus GX vehicle, which she initially leased and now finances to own; she pays approximately $678 per month for the vehicle and testified that she did not receive financial assistance from Defendant when she purchased the lease out. Plaintiff asks that the Court grant her 100% ownership of the vehicle.

At present, Plaintiff testified she has no retirement or investment accounts in her name. Plaintiff has a Robinhood account that held a value of $401.01 as of January 31, 2021. Pl. Ex. 11 (Pl. Robinhood statements). Plaintiff also has Bank of America checking account ending in [Redacted] and a Bank of America savings account ending in [Redacted]; these accounts had a consolidated balance of $3,388.68 as of January 29, 2021. See Pl. Ex. 5C (2021 Bank of America consol. statements). Plaintiff separately has a Bank of America account ending in [Redacted], which she opened post-commencement, and the balance as of April 15, 2021 is $7,489.53. See Pl. Ex. 6 (4/15/21 Bank of America [Redacted] statement).

With respect to liabilities, Plaintiff testified that there is an outstanding amount due of $3,712.25 for S.S.’s nursery school; Plaintiff asks that the Court direct Defendant to pay the balance owed. See Pl. Ex. 24 (1/4/21 Nursery Bills).

Plaintiff testified that the Subject Children are each involved in extra-curricular activities, including dance, gymnastics, and an after-school daycare that costs approximately $10,000 for all three children each year. In light of her working hours and childcare needs, Plaintiff asks that the Court direct Defendant to contribute towards the after-school day care and extra-curricular activities. Plaintiff testified that she is presently incurring these costs in full. See 3/27/23 Tr. at 37:15—39:18. Plaintiff further asks that the Court direct Defendant to contribute to summer camp for the Subject Children for the past and in the future. For 2022, the total amount of summer camp was $13,552.50. See Pl. Ex. 51 (5/25/22 [Redacted] invoice).

Plaintiff testified that, after commencing the divorce action, she incurred all household expenses including landscaping (outstanding amount of $1,800); plumbing (paid amount of $162.56). Plaintiff asks that the Court direct Defendant to be 100% responsible for said expenses. See Pl. Exs. 52 (4/4/22 [Redacted] invoices); 53 (7/27/22 RPL Enterprises LLC invoice).

Additionally, Plaintiff testified that she has student loans in the approximate amount of $70,000. See Pl. Ex. 20 (10/4/21 Nelnet Statement; 10/4/21 Stffrd Statement; 10/4/21 Navient Statement).

With respect to Plaintiff's 10% ownership interest in [Redacted], see Def. Ex. 53 (10/24/12 [Redacted] Operating Agreement), Plaintiff testified that, pre- and post- commencement, she has not received any amounts associated with her ownership. She testified that she has not managed the books and records of, or otherwise participated in the business. 3/27/23 Tr. at 63:6—17. She testified that she seeks to waive her 10% interest in the business and that the Court direct she is held harmless from any liabilities that may arise from her ownership interest.

As to the Marital Residence, Plaintiff seeks to be permitted to stay in the Marital Residence with the Subject Children and be afforded the opportunity to buy out Defendant's interest in the residence. She also testified that there is an amount of approximately $115,000 ² overdue on the mortgage for the Marital Residence and for which the parties are in default; she testified that during the period of default, Plaintiff was working per diem whereas Defendant was generating income from [Redacted], disability payments from Sun Life, [Redacted], and the Eastchester Property.

Testimony of Defendant Father

Defendant testified that he has worked at [Redacted] since 2011 and his current income is comprised of a base salary of $135,000 and a bonus component, which was $14,000 in 2022. He testified as to his financial interests in five entities as follows.

The Marital Residence, purchased during the marriage in August 2018 for approximately $765,000, is located at [Redacted]. Defendant testified that the source of the down payment of approximately $76,500 was his savings. See Pl. Ex. 1 (Contract of Sale). The property is a two-family unit in which Plaintiff and the Subject Children presently reside in one unit and the second unit is rented out at $2,700 per month. Defendant testified that the mortgage is held by Wells Fargo and was, at the time of the purchase, in the amount of $610,000 with monthly payments of $4,715.33. See Pl. Ex. 2 (6/28/18 Commitment Letter). Defendant testified that the parties stopped paying the mortgage in March 2020, and that it was a “family decision” to go into “forbearance.” 3/20/23 Tr. at 61:2. Defendant testified that he is not in default on the mortgage and the property is not in foreclosure. See 3/22/23 Tr. at 163:18—24. He testified that the parties did not pay the mortgage during the period of April 2020 through September 2021, despite the fact that the parties were collecting rental income of $2,700 on a unit in the Marital Residence in addition to Defendant's salary and disability income. He later testified on direct examination that he applied for a loan modification with Wells Fargo in March/April 2020, and was approved. 3/29/23 Tr. at 15:20—16:7. Defendant offered no evidence as to an application and approval of said loan modification. On cross-examination, Defendant admitted that, after the divorce action was commenced, he did not pay the mortgage amount from February 2021 through October 2021. 3/29/23 Tr. at 33:10—15.

The November 17, 2022 Wells Fargo mortgage statement indicates the total amount overdue on the mortgage was $112,042.43, the monthly payment including principal, interest, escrow is $5,114.45, thereby yielding a total amount due of $117,156.88, and the total unpaid principal balance is $582,678.58. Def. Ex. 106 (11/17/22 [Redacted] Mortgage St.); see also 3/22/23 Tr. at 203:17—206:12 (wherein the Court granted Plaintiff's request for a negative inference with respect to the outstanding overdue payment on the mortgage, listed as $117,156.88 on December 1, 2022). Defendant asks that the Court direct that the Marital Residence be listed for sale, with the equity shared equally by both parties, and the overdue amount of approximately $117,000 shared equally by both parties.

Defendant has owned and operated [Redacted], located at [Redacted], since 2012; presently, Plaintiff and Defendant hold a 10% and 90% interest in the business, respectively. Defendant testified that the business generated gross sales of $229,307 in 2018, $231,934 in 2019, $154,678 in 2020, and he believes that the gross sales in 2021 exceed the 2020 amount. See Pl's Exs. 42 (2018 [Redacted] Tax Return), 43 (2019 [Redacted] Tax Return), 44 (2020 [Redacted] Tax Return). Defendant concedes that there is a meaningful cash component to the business in that some customers pay in cash, and he pays his employees in cash. Defendant testified that the expenses associated with the business are comprised of rent (approximately $2,306 per month), utilities (approximately $600 to $1,800 depending on the time of year), telephone and internet (approximately $280 to $320), an annual permit (approximately $2,000 per year), equipment (two vacuum cleaners and a power washer), supplies (approximately $2,800 per month), advertising (approximately, $1,500 per month), and staff. When asked, Defendant could not answer how many employees he currently employs, whether they are full-time or part-time, and their respective salaries, although he stated that he would pay one full-time employee approximately $105 per day. Defendant did not offer any evidence, other than his own testimony, to substantiate the types and amounts of expenses incurred by the business.

Defendant testified that he owns a residential property at [Redacted] (“Eastchester Property”) that is comprised of two family units and an illegal third unit—all of which are presently rented out. He purchased the property in October 2006; he resided in the illegal third unit with Plaintiff for two years prior to and during their marriage. The property has a mortgage that is presently held by Shellpoint. Defendant testified that he receives approximately $4,350 per month in rental income for this property (totaling $52,200, annually), which includes some portion from a Section 8 tenant. Pursuant to the mortgage statement, the monthly payment amount is $2,686.67 (totaling $32,240.04, annually)—inclusive of interest and escrow for taxes and insurance—and there is $260,167.18 in outstanding principal. See Pl. Ex. 30 (12/14/21 [Redacted] Mortgage St.). Defendant testified that after paying the mortgage/interest/taxes and expenses for the property—including oil, water, ConEdison, garbage removal, repairs—he receives no net income from the property. Defendant did not offer any evidence, other than his own testimony, to substantiate the types and amounts of expenses incurred.

Defendant testified that he holds a 13% interest in [Redacted] (“Crotona Property”), which was purchased during the marriage in 2015. After the Crotona Property was purchased, [Redacted]—an entity owned by a third-party, Mr. [Redacted]—was established as the purported owner of the property. Defendant testified that he had previously engaged in business dealings with Mr. [Redacted], including with respect to his ownership interest in a property located at [Redacted] (“Ozone Park Property”). Defendant maintains that he was “scammed” and “defrauded” by Mr. [Redacted] with respect to his investment in the Crotona Property, 3/20/23 Tr. at 62:20—22, thereby causing him to commence a lawsuit against Mr. [Redacted] on January 7, 2021. See Pl. Ex. 28 (1/5/21 Summons with Complaint). Defendant testified that he invested a total of $50,000 in the Crotona Property, of which $20,000 was borrowed from a third-party Mr. [Redacted] against the Eastchester Property. Defendant admitted that said loan was not disclosed on his SNW. He further testified that he did not “receive any benefit or monies from the Crotona property.” 3/22/23 Tr. at 18:11—13.

Defendant purchased the Ozone Park Property, a one-family home, on December 31, 2012; Defendant's name appears on the deed to the property, and he testified that there was a mortgage on the property held by Shellpoint. See Pl. Ex. 46 (Ozone Park Deeds). Defendant maintains that Mr. [Redacted] again defrauded him and transferred Defendant's interest in the Ozone Park Property without Defendant's consent sometime in January 2023. On cross-examination, Defendant testified that, on December 10, 2014, he transferred 50% of his interest in the property to Mr. [Redacted] and received no payment in return, although the mortgage remained in his name. See id.; see also 3/20/23 Tr. at 75:13—17 (“All I did was do him a favor and put my name on the mortgage, okay, with the promise that it was going to be paid off in six months and it literally just got paid in February of this year where I'm not on the mortgage no more anything.”). He later transferred the balance of his interest in the Ozone Park Property on September 18, 2017, although Defendant maintains his signature was forged on the deed. See Pl. Ex. 46. Defendant denied that he “transfer[red] this property in order to defraud [his] wife of any interest” in the Ozone Park Property. 3/20/23 Tr. at 78:15—17. At present, Defendant has no interest in this property and claims that he never had an interest in the property but was, rather, defrauded by Mr. [Redacted]. He further testified that Mr. [Redacted] “told me the mortgage was paid off” at the time he sold the Ozone Park Property in January 2023—without Defendant's consent. Id. at 82:23—83:2.

With respect to bank accounts held in his name or [Redacted], LLC, Defendant testified as follows:

• the value of his Fidelity 401(k) retirement savings plan as of February 15, 2021 is $79,796.76, and that he has not removed any funds from this account since the date of the statement, see Pl. Ex. 33 (Fidelity 401(k) statements);

• the value of his Robinhood account as of February 28, 2021 is $12,851.79, see Pl. Ex. 34 (Robinhood statements);

• the value of his J.P. Morgan IRA account as of March 31, 2021 is $108,967.31, see Pl. Ex. 35 (J.P. Morgan IRA statements);

• the account balance of his Wells Fargo account ending in [Redacted]—associated with the Eastchester Property—as of February 28, 2021 is $13,633.24, see Pl. Ex. 36 (Wells Fargo [Redacted] statements);

• the account balance of his Wells Fargo account ending in [Redacted]—associated with [Redacted] income and borrowed funds—as of February 28, 2021 is $11,773.63, see Pl. Ex. 37 (Wells Fargo [Redacted] statements);

• the account balance of his Wells Fargo account ending in [Redacted]—from which the mortgage on the Marital Residence was/is paid—as of January 31, 2021 is $85,002.48, see Pl. Ex. 38 (Wells Fargo [Redacted] statements), and Defendant further testified that he made withdrawals from this account in the amount of $82,500 during the period 2019 through 2020 to pay contractors for renovations on the Marital Residence although he produced no evidence to corroborate said payments, see 3/20/23 Tr. at 111:17—21;

• the account balance of his Chase account ending in [Redacted]—an account that Defendant did not disclose in his SNW because he maintains he opened the account in July 2021 after the date of commencement (on February 15, 2021) to buy out Plaintiff's interest in the Marital Residence—as of November 8, 2021 is $169,985, see Pl. Ex. 47 (Chase [Redacted] statement); 3/20/23 Tr. at 117:16—21; and

• the account balance of [Redacted] Capitol One account ending in [Redacted] as of December 31, 2020 is $32,994.31, see Pl. Ex. 45 (Capitol One [Redacted] statements); Defendant admitted that he uses some of the funds in this account for personal expenses, see 3/20/23 Tr. at 114:3—10.

Regarding the Wells Fargo account ending in [Redacted], Defendant testified that the withdrawals from this account relate to construction performed on the home during 2019 through 2020 for which he paid contractors in cash. See, e.g., 3/22/23 Tr. at 160:14—25. Defendant testified that he acted as the general contractor, 3/27/23 Tr. at 144:24—25, and filed permits with the City of New Rochelle for the construction (the Court notes that said permits were not offered into evidence), and that the total amount for the renovation was $300,000. Defendant testified that he borrowed money from Mr. [Redacted] against the Eastchester Property to pay for the renovation. Id. at 146:1—12. Defendant did not offer any evidence, other than his own testimony, to substantiate the types and amounts of expenses incurred in connection with the renovation as well as the loan from Mr. [Redacted]. Defendant further testified that he withdrew $70,000 from this account on March 19, 2021, after he was served in the divorce action. 3/29/23 Tr. at 45:3—7.

Regarding the Chase account ending in [Redacted], Defendant testified that he borrowed money from six individuals for the purpose of negotiating with Plaintiff to buy out her interest in the Marital Residence. He stated that the account balance has not changed since he opened the account in July 2021 through the present, although Defendant offered only one statement for the account for the period of October 9, 2021 through November 8, 2021.

With respect to the borrowing of funds, Defendant testified that, since 2018, he has borrowed the sum of $625,000 from individuals. 3/29/23 Tr. at 37:18—20. Defendant offered no evidence, other than his testimony, to substantiate these loans including, for example, promissory notes, evidence of transfers, names of lenders, amounts, and dates. Additionally, Defendant did not disclose any of these loans as liabilities on his SNW.

Post-Trial Submissions

Plaintiff

Plaintiff contends that, for purposes of spousal maintenance and child support, Plaintiff's income is $94,869.05 per year and Defendant's income is $440,560.00 per year. Based on these figures, Plaintiff proposes the following calculations and amounts, and attaches proposed worksheets for each of the below scenarios:

• Defendant's spousal maintenance obligation to the cap of $203,000 equals $1,558.09 per month ($18,697.11 per year).

• Applying the spousal maintenance cap of $300,000, Defendant's spousal maintenance obligation equals $3,174.76 per month ($38,097.11 per year).

• Plaintiff argues that the Court should apply the factors enumerated under DRL § 236B(6)(e)—namely, the present or future earning capacity of the parties, acts by one party against the party that have inhibited earning capacity, availability and cost of medical insurance for Plaintiff, Plaintiff's care of the parties’ children during the marriage that inhibited her earning capacity, the standard of living established during the marriage, the reduced or lost earning capacity of Plaintiff as a result of circumstances during the marriage, the equitable distribution of marital property, and the contributions and services of Plaintiff to the career of Defendant during the marriage.

• Applying the spousal maintenance cap of $203,000 and the child support cap of $163,000, Defendant's child support payment equals $3,118.87 per month ($37,426.44 per year), and the parties’ pro rata share of statutory add-ons equals 20.82% (Plaintiff) and 79.18% (Defendant).

• Applying the spousal maintenance cap of $203,000 and the child support cap of $300,000, Defendant's child support payment equals $5,740.24 per month ($68,882.91 per year), and the parties’ pro rata share of statutory add-ons equals 20.82% (Plaintiff) and 79.18% (Defendant).

• Applying the spousal maintenance cap of $300,000 and the child support cap of $163,000, Defendant's child support payment equals $2,969.17 per month ($35,630.04 per year), and the parties’ pro rata share of statutory add-ons equals 24.62% (Plaintiff) and 75.38% (Defendant).

• Applying the spousal maintenance cap of $300,000 and the child support cap of $300,000, Defendant's child support payment equals $5,464.73 per month ($65,576.77 per year), and the parties’ pro rata share of statutory add-ons equals 24.62% (Plaintiff) and 75.38% (Defendant).

• Should the Court determine to award no spousal maintenance and apply a child support cap of $350,000, Defendant's child support payment equals $7,006.73 per month ($84,080.76 per year), and the parties’ pro rata share of statutory add-ons equals 17.16% (Plaintiff) and 82.84% (Defendant).

Based on the foregoing, Plaintiff asks that the Court use a cap of $300,000 for both spousal maintenance and child support. Plaintiff proposes that the parties share, pro rata, colleges expenses up to the cost of SUNY Binghamton for each of the three children.

Regarding equitable distribution, Plaintiff proposes that she is permitted to purchase Defendant's interest in the Marital Residence, and that she is responsible for the mortgage as it presently exists less the amount of default on the mortgage ($117,000). Plaintiff seeks a credit of $1,350 per month (representing half of the rental payments for the Marital Residence collected by Defendant) for the period March 2020 to present, for a total of $49,950. Plaintiff seeks a credit of $1,343 per month (representing half of the monthly mortgage payments for the Eastchester Property) for the period of September 2018 through February 2021 for a total of $40,290. Plaintiff seeks an amount of $27,500, representing half of the investment amount of $55,000 that Defendant put into the Crotona property; Plaintiff further seeks 50% of any sum recovered by Defendant in the pending civil action. Regarding [Redacted], Plaintiff contends that “Defendant has operated the business on his own and kept the entirety of the proceeds for himself,” NYSCEF Doc. No. 193 at 11, and therefore, Plaintiff asks that she is held harmless and indemnified from any liability associated with said business. Plaintiff seeks the same as to her 50% ownership interest in [Redacted].

Plaintiff seeks half of the date of commencement balance of each of the marital bank and retirement accounts—this includes the Chase account [Redacted]. With respect to the Wells Fargo account [Redacted], Plaintiff argues that she is entitled to an amount that includes withdrawals of $82,500 made by Defendant during the marriage.

Plaintiff asks that she maintain 100% ownership of the 2019 Lexus. She further asks that the Court direct that neither party shall utilize the children's custodial accounts, such that they may be used for college expenses or, should a child not attend college, transferred to the child on her twenty-first birthday.

Finally, Plaintiff states that she has incurred counsel fees in the amount of $83,262.90 through April 5, 2023. Based on Defendant's status as the monied spouse, his refusal to comply with the Court's orders, and his desire to protract the litigation, Plaintiff seeks counsel fees in full, with $14,000 paid directly to Plaintiff (for fees paid to date) and the balance of $69,262.90 paid directly to Plaintiff's counsel.

Defendant

Defendant asserts that, per the Preliminary Conference Order, Plaintiff has waived any claim to spousal maintenance. Regarding child support, Defendant states Plaintiff's gross income is $99,433.57 [sic] and Defendant's gross income is $142,520.86, such that the parties’ combined gross income is $224,040.21. Accordingly, Defendant states that his basic child support payment equals $2,322.96 per month ($28,875.50 per year).

Defendant submits that the Marital Residence be listed for sale using the appraised value as per the Preliminary Conference Order, with both parties having the ability to bid and purchase the property. Defendant proposes that the “forbearance amount” of $117,156.88 is shared equally among the parties on the basis that it constitutes a marital debt. Defendant states that the Eastchester Property was acquired prior to the marriage and that it yielded no net income—here, the Court notes that Defendant's submission provides monthly carrying charges for which there is no substantiating documentation and for which there was no testimony consistent with the figures offered at trial. Accordingly, Defendant argues that the Eastchester Property should not be subject to equitable distribution, and should be deemed separate property. Regarding the Crotona property, Defendant argues that he no longer has any ownership in the property, that he never received any returns on the property, and that he should assign all rights, interests, liabilities—if any—to Plaintiff, including all rights and potential claims associated with the pending civil litigation.

Defendant argues that Plaintiff's nursing license should be deemed as marital property subject to equitable distribution. Defendant neither offered nor elicited any relevant testimony with respect to this form or relief at trial and, accordingly, the Court will not make any findings of fact or conclusions of law thereto.

With respect to the parties’ bank, brokerage, and retirement accounts, Defendant proposes that the parties equally divide the balance of the accounts using the date of commencement value; Defendant does not propose any distribution as to the Wells Fargo [Redacted], Robinhood [Redacted], and Chase [Redacted] accounts. Rather, Defendant argues that the Wells Fargo [Redacted] account is separate property because the “funds in deposit were monies Defendant borrowed to pay for living expenses and construction costs on the Marital Residence.” NYSCEF Doc. 195 at 7. Defendant argues that the Chase [Redacted] account is separate property because it is an account opened for purposes of depositing monies Plaintiff borrowed to buy Plaintiff's interest in the Marital Residence.

As to the [Redacted] Capitol One checking account [Redacted], Defendant argues that Plaintiff is entitled to 10% of her interest in any net profits. Defendant asserts that Plaintiff shall be liable for any liability associated with the business, including the rental arrears amount of $57,159.37. Defendant states that [Redacted] is not in business and has not been operational since 2020.

Defendant argues that the 2019 Lexus is marital property, to which he is entitled 50% of any equity that has accrued as a result of the financing to purchase the vehicle.

Regarding the children's custodial accounts, Defendant asks that the accounts should be held jointly by Plaintiff and Defendant as custodians and agrees with Plaintiff's position as to the use of the funds in each custodial account.

Conclusions of Law

Credibility

Both parties offered testimony at trial and were subject to direct and cross-examination by counsel. Plaintiff answered each question succinctly and clearly. Her answers are consistent with the documentary evidence offered at trial. The Court finds Plaintiff to be credible and her answers to be reliable.

By contrast, and as described supra, Defendant failed to offer into evidence any of the following items, among others: updated Statement of Net Worth, recent paystubs, recent personal tax returns, recent business tax returns; documentation to substantiate expenses associated with the rental unit located at the Marital Residence, expenses associated with the rental property located at [Redacted], expenses associated with operation of [Redacted], and expenses associated with renovations to the Marital Residence; and documentation with respect to income derived from the Crotona and Ozone Park Properties. The Court observes that Defendant's testimony with respect to the foregoing is wholly unreliable and contradictory, and lacks any basis in fact. The Court grants Plaintiff's application that a negative inference is drawn as a result of Defendant's failure to comply with the Court's directives that an updated Statement of Net Worth is filed prior to trial. See S.A. v. K.F., 22 Misc 3d 1115(A), 880 N.Y.S.2d 226, 2009 WL 212566 at *3 (Kings Cnty. Sup. Ct. 2009) (“where one party fails to comply with court ordered demands, the court may use its discretion in determining equitable distribution, and fashion a remedy based on the particular situations of the parties involved, and on overriding concerns of fairness and equity”).

For example, with respect to the Eastchester Property, Defendant testified at trial that he receives approximately $4,350 per month in rental income, and he provided sworn testimony as to various categories of expenses associated with the property. Defendant did not provide approximate or exact amounts of said expenses, nor did he offer any evidence thereto. In his post-trial submission, Defendant stated that the rental income for the Eastchester Property is $4,100, and he listed categories of expenses totaling $48,779.26 in expenses, void of any documentation or corroborating evidence. The Court provides a second example with respect to his operation of [Redacted]—a business that Defendant has owned and operated since 2012. Defendant did not produce a single document to substantiate his business expenses and/or or net income. In fact, the only exhibit Defendant sought to admit into evidence at trial was the Operating Agreement (Def. Ex. 53).

Furthermore, the Court finds it compelling that Defendant testified that, since 2018, he has borrowed the sum of $625,000 from individuals—a fact that is not disclosed on his SNW. 3/29/23 Tr. at 37:18—20. Again, the Court reiterates that Defendant offered no evidence, other than his testimony, to substantiate these loans including, for example, promissory notes, evidence of transfers, names of lenders, amounts, and dates. Furthermore, the Court has no information as to where and how these funds were deployed.

Grounds for Divorce

In the verified complaint, Plaintiff alleges an irretrievable breakdown of the marriage for a period of in excess to six months prior to commencement of the action, see DRL § 170(7), as the sole ground for the divorce. In the verified answer with counterclaim, Defendant likewise alleges an irretrievable breakdown of the marriage for a period of at least six months. The parties are not in dispute as to the grounds for divorce and both testified credibly at trial that the marital relationship had broken down irretrievably since at least December 2020. Accordingly, the Court grants parties a divorce on the ground set forth in DRL § 170(7).

Maintenance

“The amount and duration of spousal maintenance is an issue generally committed to the sound discretion of the trial court and each case is to be resolved upon its own unique facts and circumstances.” Silvers v. Silvers, 197 AD3d 1195, 1199 (2d Dept. 2021); see Alam v. Alam, 168 AD3d 896, 896 (2d Dept. 2019). “ ‘The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting.’ ” Sansone v. Sansone, 144 AD3d 885, 886 (2d Dept. 2016), quoting Sirgant v. Sirgant, 43 AD3d 1034, 1035 (2d Dept. 2007).

Regarding the calculation of income, DRL § 236B(6)(b)(3)(a) and, accordingly the Child Support Standards Act (CSSA) to which the DRL refers, define how income should be calculated for purposes of calculating the total gross income of the parties. See also DRL § 240(1-b)(b)(5).

“ ‘The court may impute income to a party based on his or her employment history, future earning capacity, educational background, or money received from friends and relatives.’ Duffy v. Duffy, 84 AD3d at 1152, 924 N.Y.S.2d 449 [internal quotation marks omitted]; see Matter of Rohme v. Burns, 92 AD3d 946, 947, 939 N.Y.S.2d 532; Wesche v. Wesche, 77 AD3d at 923, 909 N.Y.S.2d 764. ‘Where a party's account is not believable, the court may impute a true or potential income higher than alleged.’ Wesche v. Wesche, 77 AD3d at 923, 909 N.Y.S.2d 764; see Duffy v. Duffy, 84 AD3d at 1152, 924 N.Y.S.2d 449. ‘The court has considerable discretion in determining whether income should be imputed to a party and the court's credibility determinations are accorded deference on appeal.’ Matter of Monti v. DiBedendetto, 151 AD3d 864, 866, 56 N.Y.S.3d 544; see Matter of Kiernan v. Martin, 108 AD3d 767, 768, 970 N.Y.S.2d 69.’ ” Klein v. Klein, 178 AD3d 802, 803—04 (2d Dept. 2019).

Here, Defendant's reliance upon the Preliminary Conference Order at page 5 for the proposition that Plaintiff has waived spousal maintenance is misplaced in light of the contradictory information at page 4 of the same document, wherein parties indicated maintenance is unresolved. The Court is further guided by the recommendation of Court Attorney-Referee [Redacted] that “[b]ecause maintenance is statutory and is presumptively awarded if the payee spouse qualifies, and because New York has a strong public policy in favor of resolving matrimonial issues on the merits, it is the recommendation of the undersigned that the preliminary conference stipulation and order be amended to reflect that maintenance is ‘unresolved’ pending a trial or settlement of the action.” NYSCEF Doc. No. 65 at 2.

The parties were married for 7 years, 6 months. At the time of trial, Plaintiff was 29 years old, and Defendant was 32 years old, and both are in good health and presently employed full-time. Plaintiff testified that she has worked full-time as a registered nurse at [Redacted] Hospital since November 2021. From approximately May 2021 through November 2021, Plaintiff worked per diem as a nurse earning approximately $47 to $48 per hour. Plaintiff submitted her 2022 W-2 Form, admitted into evidence at Pl. Ex. 57, which states that her Medicare wages and tips are $94,869.05. Plaintiff testified that she earns no other income. Accordingly, the Court will apply that amount for Plaintiff's income for purposes of calculating maintenance and child support obligations.

Defendant has worked at [Redacted] as an account/sales executive since 2011. Defendant testified that, in 2022, his base salary was $135,000 and he received an annual bonus of $14,000. Defendant testified that he derives $2,700 per month, or $32,400 each year, in rental income from the rental unit locate at the Marital Residence. Defendant stated that the rental income is applied to offset the mortgage payment of $5,114.45 per month, or $61,373.40, and living expenses.

With respect to [Redacted], Plaintiff offered into evidence the tax returns for 2018, 2019, and 2020 (Pl. Exs. 42, 43, 44) showing gross receipts or sales of $229,307, $231,934, and $154,678 in each of those respective years. Defendant testified that he believes that gross sales in 2021 exceed the 2020 amount—which was heavily impacted by COVID. Defendant further testified that the business has meaningful cash component, and he could not provide reliable testimony as to any business-related expenses. The testimony adduced at the trial establishes that Defendant controls the business and makes all significant decisions including purchases, expenditures, and hiring and salaries of employees—likely, including his own. Defendant also admitted that some of the income from [Redacted] is used towards covering personal expenses, and that the Capitol One account used for the business co-mingles business expenses with personal expenses. Parties have not provided the Court with a 2021 or 2022 tax return for [Redacted], and accordingly the Court takes the average of the gross receipts or sales during the years of 2018 and 2019 only—as Defendant acknowledges the 2020 figure is an outlier, which yields $230,620.50, and applies said amount as gross (total) income as should have been or should be reported in the most recent federal tax return. See DRL § 240 (1-b)(b)(5)(i); see also E.D. v. J.D., 42 Misc 3d 1204(A), 983 N.Y.S.2D 202, 2013 WL 6797570 at *5 (Westchester Cnty. Sup. Ct. 2013) (court imputed the full amount of the gross receipts as income to Defendant).

Defendant further testified that he generates rental income from the Eastchester Property in the amount of $4,350 per month, or $52,000 annually. The monthly mortgage payments are $2,686.67, or $32,240.04 annually. As the Court discusses infra, the Eastchester Property is deemed as separate property for which Defendant will continue to generate rental income to his benefit only. The parties did not offer any testimony or evidence as to any income derived from the Crotona or Ozone Park Properties. Based on the foregoing, the Court calculates Defendant's income as $149,000 ($135,000 + $14,000), and imputes additional annual income to Defendant in the amount of $250,580.46, thereby totaling $399,580.46. The amount of imputed income is based on the following: income derived from [Redacted] of $230,620.50 and rental income less mortgage payments associated with the Eastchester Property of $19,959.96.

As this action was commenced after January 23, 2016, it is governed by amendments to the calculation of post-divorce maintenance set forth in DRL § 236B. See L 2015, ch 269, § 4; Mahoney v. Mahoney, 197 AD3d 638, 639 (2d Dept. 2021). Where, as here, the Defendant's annual income exceeds the statutory income cap of $203,000, see DRL § 236B(6)(b)(4), the Court shall determine the guideline amount of post-divorce maintenance by performing the calculations set forth in DRL § 236B(6)(c), and then shall determine whether to award additional maintenance for income exceeding the cap by considering the factors set forth in DRL § 236B(6)(e)(1) and setting forth the factors it considered. See DRL § 236B(6)(d)(1)—(3). Defendant's maintenance obligation up to the income cap is $1,558.09 per month. Considering the relevant factors, see DRL § 236B(6)(e)(1)(a)—(o), including the length of the parties’ marriage, their age and health, the marital property being distributed, Plaintiff's ability to become self-supporting, the Court declines to award additional maintenance.

Based upon the duration of the 7 year, 6-month marriage, Plaintiff would be entitled to maintenance for a period of 30% to 40% of the length of the marriage, which is 1 year, 2 months to 2 years, 3 months. See DRL § 236B(6)(f)(1). Under the circumstances of this case, and considering the Plaintiff's age and limited employment history, the parties’ standard of living during the marriage, and the distribution of marital property, the Court awards maintenance for a duration of 2 years, 3 months. In reaching this determination, the Court has considered, among other things, the disparity in the parties’ respective incomes, that Plaintiff put her education and career on hold to stay home to raise the parties’ children, Plaintiff's limited employment history, and Plaintiff's demonstrated effort to become self-supporting.

The award of maintenance shall continue until the earlier of the expiration of the stated period, either party's death, or the Plaintiff's remarriage or cohabitation within the meaning of DRL § 248.

Accordingly, commencing on the first day of the first full month after the date of this Decision After Trial, Defendant shall remit payment of $1,558.09 per month as and for spousal maintenance for a period of 2 years and 3 months.

Child Support and Add-On Expenses

“The Child Support Standards Act ‘sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling.’ ” Spinner v. Spinner, 188 AD3d 748, 751 (2d Dept. 2020), quoting Matter of Freeman v. Freeman, 71 AD3d 1143, 1144 (2d Dept. 2010); see DRL § 240(1-b)(c). “ ‘Where the combined parental income exceeds that ceiling, the court, in fixing the basic child support obligation on income over the ceiling, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1-b)(f), or to apply the statutory percentages, or to apply both.’ ” Spinner, 188 AD3d at 751, quoting Candea v. Candea, 173 AD3d 663, 664 (2d Dept. 2019); see DRL § 240(1-b)(c)(3). “ ‘The court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap.’ ” Spinner, 188 AD3d at 751, quoting Candea, 173 AD3d at 665.

For purposes of calculating child support, Plaintiff's annual income adjusted for maintenance is $106,308.68, Defendant's annual income is $364,179.21, and the parties’ combined parental income equals $470,487.89, see DRL § 240(1-b)(c)(1), of which Plaintiff's income comprises 22.6% and Defendant's income 77.4%. Multiplying the combined parental income up to the statutory cap of $163,000 by the appropriate child support percentage of 29% for three children yields an annual parental child support obligation of $47,270, of which 22.6% is to be paid annually by Plaintiff, or $890.07 per month, and 77.4% is to be paid annually by Defendant, or $3,049.10 per month. See DRL § 240(1-b)(c)(2).

Next, because the combined parental income exceeds the statutory cap currently set at $163,000, the Court must determine the amount of child support, if any, for the amount of the combined parental income in excess of $163,000. Under the circumstances of this case and upon consideration of the statutory factors set forth in DRL § 240(1-b)(f)(1-10), including, among other things, the financial resources of the parties, the earning potential of the parties, the disparity in the parties’ respective incomes, and the standard of living enjoyed by the children during the marriage, the Court finds it just and appropriate to calculate child support based on combined parental income above the statutory cap up to $250,000. See Bari v. Bari, 200 AD3d 835, 838 (2d Dept. 2021); Sinnott v. Sinnott, 194 AD3d at 875; Matter of Levin v. Blum, 167 AD3d 609, 611 (2d Dept. 2018). In reaching this determination, the Court has considered the substantial amount of income Defendant has historically drawn from the Eastchester Property, the Marital Residence, and [Redacted], as well as the investments Defendant has made in the Crotona ($50,000 investment) and Ozone Park (investment amount unknown) Properties. Additionally, the Court is mindful of its prior directive that Plaintiff continue to reside within a 15-mile radius of the Subject Children's school to facilitate access and visitation with their father, and accordingly will not impose an undue burden on Plaintiff to sustain a lifestyle for the Subject Children absent reasonable and just support from Defendant.

The combined parental income above the cap is $87,000 ($250,000 less $163,000). Applying the statutory percentage of 29% for three children yields an annual parental child support obligation above the cap of $25,230, of which 22.6% is to be paid annually by Plaintiff, or $475.07 per month, and 77.4% is to be paid annually by Defendant, or $1,627.43. After adding that amount to Defendant's monthly pro rata share of the child support obligation up to the cap ($3,049.10), Defendant's total child support obligation for the Subject Children while Plaintiff receives spousal maintenance equals $4,676.53 per month.

Accordingly, commencing on the first day of the first full month after the date of this Decision After Trial, Defendant shall remit payment of $4,676.53 per month as and for child support. Upon emancipation of each child, child support shall be recalculated. Child support shall also be recalculated upon the termination of maintenance.

Defendant shall maintain a life insurance policy in an amount sufficient to secure the payment of child support and maintenance. See DRL § 236B(8)(a); Shvalb v. Rubinshtein, 204 AD3d 1059 (2d Dept. 2022).

The DRL provides that reasonable health care expenses not covered by insurance, the cost of health insurance, and childcare expenses should be allocated “in the same proportion as each parent's income is to the combined parental income.” DRL § 240(1-b)(c)(4), (5)(ii). Here, Defendant shall continue to maintain health insurance for the parties’ Subject Children until their graduation from college or until Defendant is no longer able to provide dependent coverage for the Subject Children under his insurance plan. Plaintiff is directed to pay her 22.6% pro rata share of the cost of providing health insurance benefits for the Subject Children, which shall be deducted from Defendant's basic child support obligation. See id.; Candea, 173 AD3d at 666; Bauman v. Bauman, 132 AD3d 791, 793 (2d Dept. 2015). Defendant is directed to pay his 77.4% pro rata share of the children's future unreimbursed health care expenses. See Strohli v. Strohli, 174 AD3d 938, 943 (2d Dept. 2019).

“Expenses for extracurricular activities are not specifically delineated as an ‘add on’ under the Child Support Standards Act.” Tuchman v. Tuchman, 201 AD3d 986, 992-993 (2d Dept. 2022). The Court refers to its February Decision at page 12 (“Extra-Curricular Activities and Summer Camp”), wherein it directed parties “to engage in meaningful consultation as to extra-curricular activities and summer camp for the children, and mutually agree upon a financial budget for said activities. Subject to resolution of the financial issues in this case, the parties shall be responsible for paying for such activities and camp based on their pro rata share.” To the extent parties are unable to agree on said budget and/or activities, parties are directed to the February Decision at page 11 (“Decision-Making”), wherein Plaintiff shall have final decision-making authority as to all major matters, including but not limited to, extra-curricular activities.

Defendant is further directed to remit payment for his pro rata share for the following: S.S.’s nursery school, which has an outstanding amount due of $3,712.25; the Subject Children's 2022 summer camp, which totaled $13,552.50; the Subject Children's 2023 summer camp, with invoice to be provided by Plaintiff to Defendant within fifteen (15) days of this Decision After Trial. Defendant shall remit said payments for outstanding amounts due within forty-five (45) days of this Decision After Trial.

Given the age of the parties’ children—the oldest being only nine (9) years old—it is premature at this juncture to include a directive regarding the payment of college expenses. See Spinner, 188 AD3d at 752. The Court notes that each of the children has a custodial account and those accounts shall continue to be maintained for the benefit of each of the children, with Plaintiff as the custodian on each of the accounts.

Neither party requested the Court to address the tax deductions to which they may be entitled for the children. Nevertheless, the Court addresses the issue to avoid any future disputes regarding which party is entitled to the deductions. Plaintiff shall be entitled to the deduction for the three children in the first such year, and Defendant shall be entitled to the deduction for the three children in the second such year, and the parties shall alternate each year thereafter. When there are two children, the parties shall split the number of children to be taken as a deduction during the years that an even number of children are eligible for a deduction. When there is only one child eligible to be taken as a deduction, Plaintiff shall be entitled to the deduction in the first such year, and the parties shall alternate until no children are eligible to be taken as a deduction. Defendant shall be entitled to the aforementioned tax deductions only if he is current on his child support obligations on the first day of the year for which the deduction is to be declared.

Equitable Distribution

Equitable distribution of marital property does not necessarily mean equal distribution. See Santamaria v. Santamaria, 177 AD3d 802, 804 (2d Dept. 2019); Culen v. Culen, 157 AD3d 926, 929 (2d Dept. 2018). “ ‘Domestic Relations Law § 236 mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the courts to consider a number of statutory factors.’ ” Fairchild v. Fairchild, 149 AD3d 710, 710-711 (2d Dept. 2017), quoting Fields v. Fields, 15 NY3d 158, 170 (2010). “Those factors include: the income and property of each party at the time of marriage and at the time of commencement of the divorce action; the duration of the marriage; the age and health of the parties; the loss of inheritance and pension rights; any award of maintenance; any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of marital property by the party not having title; and any other factor which the court shall expressly find to be just and proper.” Taylor v. Taylor, 140 AD3d 944, 945—946 (2d Dept. 2016); see DRL § 236B(5)(d). “ ‘While equitable distribution does not necessarily mean equal distribution, when both spouses have made significant contributions to a marriage of long duration, the division of marital property should be as equal as possible.’ ” Kamm v. Kamm, 182 AD3d 590, 591 (2d Dept. 2020), quoting Eschemuller v. Eschemuller, 167 AD3d 983, 985 (2d Dept. 2018).

“ ‘A trial court is vested with broad discretion in making an equitable distribution of marital property, and ‘unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed.’ Moreover, where, as here, “a determination as to equitable distribution has been made after a nonjury trial, the trial court's assessment of the credibility of witnesses and the proffered items of evidence is afforded great weight on appeal.’ ” Sufia v. Khalique, 189 AD3d 1499, 1500 (2d Dept. 2020)(internal citations omitted).

Marital property is defined in DRL § 236B(1)(c) as “all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action.” Separate property is defined as including “property acquired before marriage” or “property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse.” DRL § 236B(1)(d)(1), (3).

After considering the aforementioned principles of law, the statutory factors, and the circumstances of this particular case, the Court equitably distributes the marital property as follows:

Marital Residence

The parties do not dispute that that they purchased the Marital Residence on August 7, 2018, for $762,500 and it is marital property subject to equitable distribution. The mortgage is held by Wells Fargo and is in Defendant's name only. The most current statement admitted into evidence at trial, and offered by Defendant, is dated November 17, 2022. Def. Ex. 106 (11/17/22 [Redacted] Mortgage St.). Per the statement, the principal balance on the mortgage through Wells Fargo is $582,678.58 and the total amount overdue is $117,156.88, which is comprised of principal, interest, escrow, the then-current monthly payment of $5,114.45, and the overdue payment of $112,042.43. Parties did not offer into evidence any of the following at trial: current mortgage statement; mortgage payoff statement, or appraisal report.³ Accordingly, the parties failed to offer any proof at trial as to the value of the Marital Residence and/or the current equity in the residence.

Although the Court agrees that it is desirable that the Subject Children remain in the Marital Residence with Plaintiff to afford them stability in their home life, the ability to remain in the same neighborhood, and to attend the same schools, Plaintiff has not offered any proof as to her ability to financially remain in the Marital Residence and/or qualify for a mortgage on the residence. Plaintiff seeks to have the Court permit her to buy out Defendant's interest in the Marital Residence, however due to the failure of proof as to the value of the residence and ability of Plaintiff to qualify for the mortgage coupled with the current default of approximately $117,156.88 on the mortgage, the Court cannot accede to Plaintiff's request.

Accordingly, the Court directs that the Marital Residence shall be listed on the market for sale with a licensed real estate broker mutually agreed upon by the parties within thirty (30) days from the date of entry of the judgment of divorce. If the parties cannot agree on a broker, each party shall select a broker, both of whom shall co-list the Marital Residence for sale. The parties shall abide by the recommendation of the broker(s) and shall not act in any manner to interfere with the sale of the Marital Residence so as to ensure that the property is sold for an appropriate price in a timely manner. If the Marital Residence does not sell at the asking price within sixty (60) days, the parties shall adjust the asking price as recommended by their broker(s). Upon receipt of an acceptable offer as provided herein, Plaintiff shall have the right of first refusal to bid and purchase the Marital Residence.

Upon the sale of the Marital Residence, the gross proceeds of the sale shall first be applied to the discharge of the existing mortgage—including the total amount overdue on the mortgage of approximately $117,156.88, the payment of the broker commissions, and the payment of usual and customary closing costs and adjustments. Subject to both parties being in full and complete compliance with DRL § 236B(6), the net proceeds shall be shared equally by the parties subject to the credits that each party is entitled to as set forth in this Decision After Trial.

Bank and Brokerage Accounts

The parties do not dispute the distribution of funds and amounts with respect to the following marital accounts: Defendant's Wells Fargo account in ending in [Redacted] with a balance as of February 28, 2021 of $11,773.63. Plaintiff is entitled to 50% of the aforesaid balance in the account in the amount of $5,886.82. Defendant's Wells Fargo account ending in [Redacted] with a balance as of February 28, 2021 of $13,633.34. Plaintiff is entitled to 50% of the aforesaid balance in the amount of $6,816.67.

Regarding Defendant's Wells Fargo savings account ending in [Redacted], which had a balance as of February 28, 2021 of $85,003.13, Defendant maintains that said account is separate property because “the funds in deposit were monies Defendant borrowed to pay for living expenses and construction costs on the marital residence.” NYSCEF Doc. No. 195 at 7. However, there was no evidence admitted at trial as to the borrowing of funds that were allegedly deposited into these accounts and to substantiate Defendant's assertions that the approximate amount of $82,500 in withdrawals was used to pay for the renovation of the Marital Residence. At trial, Defendant did not dispute the total amount of withdrawals from this account from 2019 through 2020. Defendant also testified that he withdrew $70,000 from this account on or about March 19, 2021, after the action was commenced and in direct violation of the statutory automatic orders.

The Court finds Defendant's testimony as to the borrowing of funds deposited into this account and the use of funds withdrawn from this account during the marriage (from 2019 through 2020) as unreliable and accordingly, the Court finds that Defendant has not sustained his burden of proof sufficient to establish a separate property claim and/or to establish that the $82,500 in withdrawals were used towards renovations of the Marital Residence and should therefore be deemed as a marital debt. See, e.g., Tenore v. Tenore, 110 AD3d 711, 714 (2d Dept. 2013) (“[w]here a party fails to trace sources of money claimed to be separate property, a court may treat it as marital property”)(internal quotations omitted). Accordingly, the Court determines that this account has a date of commencement balance of $85,003.13 plus $82,500, yielding $167,503.13. Plaintiff is entitled to 50% of the aforesaid sum in the amount of $83,751.57.

Defendant argues that his Chase checking account ending in [Redacted], which had a balance of $167,985.00, as of October 9, 2021, and was opened post-commencement is separate property. Plaintiff does not dispute that the account was opened post-commencement and therefore, Plaintiff is not entitled any share from this account.

Defendant testified that he holds a Robinhood account, which had a value of $12,851.79 as of February 28, 2021. Plaintiff is entitled to 50% of the aforesaid value in the amount of $6,425.90.

Defendant testified that [Redacted] Capitol One checking account ending in [Redacted] had a balance as of December 31, 2020 of $32,994.31. Parties have not supplied the Court with a statement of this account through the date of commencement. Plaintiff is entitled to 50% of the aforesaid balance in the amount of $16,497.16.

Plaintiff testified she holds a Robinhood account, which had a value as of January 31, 2021 of $401.01. Defendant is entitled to a credit from the account in the amount of $200.50, which shall be deducted from the amount owed to Plaintiff for her equal share of the aforementioned accounts.

Plaintiff's Bank of America consolidated accounts ending in [Redacted] and [Redacted] with a balance as of January 29, 2021 of $3,388.68. Defendant is entitled to a credit from the account in the amount of $1,694.34, which shall be deducted from the amount owed to Plaintiff for her equal share of the aforementioned accounts.⁴

Finally, each party shall be responsible for any credit card debt or other debt in his or her name.

Defendant's Retirement Accounts

“[P]ension and retirement benefits belonging to either spouse attributable to employment during the marriage constitute marital property subject to equitable distribution upon divorce.” McGrath v. McGrath, 261 AD2d 369, 370 (2d Dept. 1999). Here, the parties do not dispute the distribution of funds and amounts with respect to the following marital retirement accounts: Defendant's J.P. Morgan IRA account ending in [Redacted] with a value as of March 31, 2021 of $108,967.31 and Defendant's [Redacted], Inc. Fidelity 401(k) Plan with a value as of February 15, 2021 $79,796.76.

The Court directs that the marital portion of Defendant's retirement accounts be divided equally between the parties according to the Majauskas formula. See Majauskas v. Majauskas, 61 NY2d 481 (1984). Counsel for Defendant is directed to obtain and submit a proposed Qualified Domestic Relations Order or Domestic Relations Order, whichever applicable, with notice of settlement, to the Court within sixty (60) days of the date of this Decision After Trial, with any costs incurred in the preparation of a Qualified Domestic Relations Order or Domestic Relations Order to be shared equally between the parties.

Any adverse tax consequences and penalties associated with an early withdrawal of funds from the retirement accounts by either party shall be borne entirely by that party.

Real Property and Business Interests

• Eastchester Property

Defendant testified that he purchased this property prior to the marriage in October 2006. During the marriage, the parties do not dispute that they derived rental income from this property in the amount of $4,350 per month and made monthly mortgage payments from a joint account (Wells Fargo account ending in [Redacted]) in the amount of $2,686.67. In his post-trial submissions, Defendant argues that, in 2021, he “paid $48,779.26 to maintain and preserve the Eastchester Property” inclusive of the mortgage payments. Defendant provides no evidence to substantiate his assertions. Accordingly, Plaintiff shall be credited with half of the rental income derived from the Eastchester Property less the monthly mortgage payments for the period of approximately September 2018, when the parties moved to the Marital Residence, through February 15, 2021 (29.5 months). Accordingly, Plaintiff is entitled to a credit in the amount of $24,534.12.

• Crotona Property

Defendant testified that he holds a 13% interest in the Crotona Property, which was purchased in 2015. Defendant further testified that he invested a total of $50,000 in this property during the marriage, and that the investment has generated no returns. Additionally, Defendant testified that he commenced a civil suit in Bronx County Supreme Court (Index No. [Redacted]) alleging fraud with respect to this property. The Court deems any investment in this property as marital and therefore declines to award Plaintiff a credit with respect to the investment amount. Plaintiff shall be entitled to receive 50% of any sum recovered by Defendant in the pending Bronx County civil action.

• Ozone Park Property

The parties do not dispute that Defendant purchased the Ozone Park Property in December 2012, prior to the marriage, and that he yields no income or returns from this investment. He further maintains that he presently has no ownership interest in this property. Accordingly, Plaintiff is not entitled to any award or credit with respect to the Ozone Park Property.

• [Redacted]

The parties do not dispute that Defendant is the operator of [Redacted], LLC, and that by virtue of the Operating Agreement, see Def. Ex. 53, Plaintiff owns 10% and Defendant owns 90% of the business. When asked whether Plaintiff receives her portion of her interest in the business, Defendant testified that “because if you look at the tax returns, there wasn't any money that was filed to show that there was — you know, profits.” 3/20/23 Tr. at 22:9—18. In his post-trial submission, Defendant argues that Plaintiff should be held liable for the business pursuant to her 10% ownership interest, including with respect to rental arrears in the amount of $57,159.37, accumulated since the date of commencement. There was no evidence admitted at trial to substantiate the rental expense for the business, let alone the rental arrears.

Plaintiff testified that she has never received her 10% interest in the business. 3/27/23 Tr. at 46:21—23. On cross-examination, she stated that she has not managed the books and records, she has not participated in running the business, and has not had any input on how the business was/is operated. Id. at 63:6—17. Plaintiff asks the Court to allow her to waive her interest in the business and be held harmless from any liabilities that may arise out of the 10% ownership in the business. Id. at 46:25—47:12.

The Court directs that Plaintiff shall surrender her 10% interest in [Redacted], LLC, and that Defendant shall hold Plaintiff harmless and indemnify Plaintiff from any and all liability associated with [Redacted], LLC.

• [Redacted]

In his post-trial submission, Defendant stated that [Redacted] is not in business and has not been operational since 2020. No testimony or evidence was admitted at trial with respect to this business. Accordingly, the Court directs that Plaintiff shall surrender her interest, if any, in [Redacted], and that Defendant shall hold Plaintiff harmless and indemnify Plaintiff from any and all liability associated with said business.

Vehicles, Furniture and Personal Property

Plaintiff is the title owner of a 2019 Lexus 460, which was disclosed on her updated SNW. Plaintiff testified that she makes monthly payments of approximately $678 per month, without the assistance of Defendant. Defendant disclosed on his 2021 SNW the 2019 Lexus—which, at the time, was leased but which Plaintiff has since financed—and a 2007 BMW with the current fair market value as “unknown.” No evidence was offered at trial regarding the value of both vehicles. The Court directs that each party shall retain the vehicle in his or her possession, and be responsible for the expenses associated with his or her vehicle. See Sawin v. Sawin, 128 AD3d 663, 668 (2d Dept. 2015) (“[s]ince there was no evidence as to the value of the parties’ three vehicles, the Court cannot say that the Supreme Court improvidently exercised its discretion in the manner in which it distributed those vehicles.”).

No evidence was offered at trial regarding the value of any furniture, household furnishings, or jewelry in the parties’ possession. Each party shall retain his or her personal property, jewelry, and clothing. At the close of trial, Defendant's counsel raised the issue of scheduling a date and time for Defendant to collect his personal belongings from the Marital Residence. Accordingly, the Court directed counsel to coordinate a date and time for Defendant, accompanied by the New Rochelle Police Department due to the active order of protection, to retrieve his personal belongings.

Counsel Fees

Plaintiff asserts that Defendant should be directed to pay 100% of her counsel fees, and seeks a final award of counsel fees in the amount of $83,262.90. Plaintiff contends that not only is Defendant the monied spouse in this proceeding, but he has demonstrated a refusal to comply with the Court's Orders, “desire to protract and complicate this litigation,” as evidenced by his decision to untimely upload one hundred-fourteen (114) proposed trial exhibits, while only moving to admit six (6) of those exhibits. Plaintiff states that she has paid her counsel $14,000 to date in two increments. The Affirmation submitted by Plaintiff's counsel attaches the signed retainer agreement (dated August 13, 2021) and true copies of Plaintiff's invoices. Based upon the Court's review of said invoices, the Court is satisfied that the counsel fees billed by Plaintiff's counsel are reasonable given the issues in this case, the procedural history of this case, and the need to litigate both custody and finances.

By statute, there is “a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.” DRL § 237(a). “In exercising judicial discretion to determine counsel fee applications, the courts must take into account not only the financial circumstances of the parties but the circumstances of the case as a whole, including the relative merits of the parties’ positions and whether either party has delayed the proceedings unreasonably or engaged in unnecessary litigation. A less-monied spouse should not be expected to exhaust or spend down a prospective or actual distributive award in order to pay counsel fees as the result of unreasonable or excessive litigation conduct by the adverse party. On the other hand, the more affluent spouse should not be treated as an open-ended checkbook expected to pay for exorbitant legal fees incurred by the less affluent spouse through excessive litigation or the assertion of unreasonable positions.” Kaufman v. Kaufman, 189 AD3d 31, 74—75 (2d Dept. 2020).

The record in this case demonstrates that while both parties have engaged in motion practice, Defendant, in particular, has demonstrated conduct and adopted positions that prolonged this case and caused unnecessary litigation. By way of examples, on November 22, 2022, Defendant moved by Order to Show Cause for the Court to vacate the Note of Issue filed on October 12, 2022, vacate the scheduled trial dates of December 5 and 6, 2022, and appoint a forensic evaluator to conduct an evaluation of the parties with respect to custody. See NYSCEF Doc. Nos. 135-140, 142. The Court denied said Order to Show Cause. NYSCEF Doc. No. 154. Following the custody trial in December 2022, on January 13, 2023, Plaintiff was forced to file a motion seeking an order adjudging Defendant in contempt for failure to remit child support payments for fourteen (14) weeks, resulting in an arrears amount of $9,800 and in direct contravention of an order of the Court. See NYSCEF Doc. Nos. 158—163. With respect to the instant financial trial, and as described supra, Defendant has failed to comply with this Court's Part Rules by, inter alia, failing to submit an updated SNW and timely filing pre-trial submissions.

Under these circumstances, and considering the merits of the parties’ respective positions, the degree to which each party sought to reasonably resolve the matter without resorting to trial, and the financial circumstances of the parties, the Court awards Plaintiff counsel fees in the amount of $50,000. Such payment shall be made by Defendant to Plaintiff's counsel within sixty (60) days of the date of this Decision After Trial.

The Court has considered the additional contentions raised by the parties and finds them to be without merit. All claims for relief not specifically addressed herein are denied.

Accordingly, it is hereby,

ORDERED that Plaintiff is granted a divorce on the ground set forth in DRL § 170(7); and it is further

ORDERED that Defendant shall pay maintenance to Plaintiff in the amount of $1,558.09 per month, for a period of two (2) years and three (3) months commencing on the first day of the first full month after the date of this Decision After Trial. The award of maintenance shall continue until the earlier of the expiration of the stated period, either party's death, or Plaintiff's remarriage or cohabitation within the meaning of DRL § 248; and it is further

ORDERED that, pursuant to the Court's February Decision as to custody and access, Defendant shall pay child support to Plaintiff in the amount of $4,676.53 per month commencing on the first day of the first full month after the date of this Decision After Trial. Upon emancipation of each child and/or upon the termination of spousal maintenance, Defendant's child support obligation shall be recalculated; and it is further

ORDERED that Defendant shall maintain a life insurance policy in an amount sufficient to secure the payment of child support and maintenance until payment of child support and maintenance are completed; and it is further

ORDERED that the parties shall share the costs of statutory add-on expenses on a pro rata basis with Plaintiff responsible for 22.6% of those expenses and Defendant responsible for 77.4% of those expenses; and it is further

ORDERED that Defendant shall maintain health insurance for the children with Plaintiff responsible for 22.6% of the cost of providing health insurance benefits for the children, which shall be deducted from Defendant's child support obligation; and it is further

ORDERED that the parties shall share in the cost of the children's future unreimbursed healthcare expenses on a pro rata basis with Plaintiff responsible for 22.6% of those expenses and Defendant responsible for 77.4% of those expenses; and it is further

ORDERED that the parties shall share in the cost of the children's extra-curricular activities and summer camp expenses on a pro rata basis with Plaintiff responsible for 22.6% of those expenses and Defendant responsible for 77.4% of those expenses; and it is further

ORDERED that Defendant shall remit payment for his pro rata share for the following: S.S.’s nursery school, which has an outstanding amount due of $3,712.25; the Subject Children's 2022 summer camp, which totaled $13,552.50; the Subject Children's 2023 summer camp, with invoice to be provided by Plaintiff to Defendant within fifteen (15) days of this Decision After Trial. Defendant shall remit said payments for outstanding amounts due within forty-five (45) days of this Decision After Trial; and it is further

ORDERED that Plaintiff shall be entitled to the deduction for the three children in the first such year, and Defendant shall be entitled to the deduction for the three children in the second such year, and the parties shall alternate each year thereafter. When there are two children, the parties shall split the number of children to be taken as a deduction during the years that an even number of children are eligible for a deduction. When there is only one child eligible to be taken as a deduction, Plaintiff shall be entitled to the deduction in the first such year, and the parties shall alternate until no children are eligible to be taken as a deduction. Defendant shall be entitled to the aforementioned tax deductions only if he is current on his child support obligations on the first day of the year for which the deduction is to be declared; and it is further

ORDERED that the Marital Residence shall be listed on the market for sale with a licensed real estate broker mutually agreed upon by the parties within thirty (30) days from the date of entry of the judgment of divorce. If the parties cannot agree on a broker, each party shall select a broker, both of whom shall co-list the Marital Residence for sale. If the Marital Residence does not sell at the asking price within sixty (60) days, the parties shall adjust the asking price as recommended by their broker(s). Upon receipt of an acceptable offer as provided herein, Plaintiff shall have the right of first refusal to bid and purchase the Marital Residence; and it is further.

ORDERED that upon the sale of the Marital Residence, the gross proceeds of the sale shall first be applied to the discharge of the existing mortgage—including the total amount overdue on the mortgage of approximately $117,156.88, the payment of the broker commissions, and the payment of usual and customary closing costs and adjustments. Subject to both parties being in full and complete compliance with DRL § 236B(6), the net proceeds shall be shared equally by the parties subject to the credits that each party is entitled to as set forth herein; and it is further

ORDERED that the balances held in any savings, checking or other non-retirement accounts as of the date of commencement of this action be equally divided between the parties as set forth herein within sixty (60) days of the date of this Decision After Trial; and it is further

ORDERED that the marital portion of Defendant's retirement accounts be divided equally between the parties according to the Majauskas formula, with any costs incurred in the preparation of a Qualified Domestic Relations Order or Domestic Relations Order to be shared equally between the parties. Counsel for Defendant is directed to obtain and submit a proposed Qualified Domestic Relations Order or Domestic Relations Order, whichever applicable, with notice of settlement, to the Court within sixty (60) days of the date of the Judgement of Divorce, and it is further

ORDERED that any adverse tax consequences and penalties associated with an early withdrawal of funds from the retirement accounts by either party shall be borne entirely by that party; and it is further

ORDERED that Plaintiff is entitled to a credit in the amount of 24,534.12, representing half of the rental income derived from the Eastchester Property less monthly mortgage payments incurred for the Eastchester Property during September 2018 through February 15, 2021, and said amount shall be deducted from Defendant's share of net proceeds from the sale of the Marital Residence; and it is further

ORDERED that Plaintiff shall be entitled to receive 50% of any sum recovered by Defendant in the pending Bronx County civil action with respect to the Crotona Property; and it is further

ORDERED that Plaintiff shall surrender her 10% interest in [Redacted], LLC, and that Defendant shall hold Plaintiff harmless and indemnify Plaintiff from any and all liability associated with [Redacted], LLC; and it is further

ORDERED that Defendant shall hold Plaintiff harmless and indemnify Plaintiff from any and all liability associated with [Redacted]; and it is further

ORDERED that each party shall retain the vehicle in his or her possession, and be responsible for the expenses associated with his or her vehicle; and it is further

ORDERED that each party shall retain his or her personal property, jewelry, and clothing; and it is further

ORDERED that Plaintiff is awarded final counsel fees in the amount of $50,000, payable by Defendant to Plaintiff's counsel within sixty (60) days of the date of this Decision After Trial; and it is further

ORDERED that all other prayers for relief not specifically addressed herein are denied; and it is further,

ORDERED that Plaintiff shall settle Findings of Fact and Conclusions of Law, a Judgment of Divorce, and all other documents necessary to allow the Court to enter Judgment in accordance with this Decision After Trial, on at least five (5) days’ notice, within thirty-five (35) days of the date hereof. Failure to timely settle the Findings of Fact and Judgment of Divorce may result in this action being dismissed, or other appropriate sanctions.

The foregoing constitutes the Decision and Order of this Court.

FOOTNOTES

1.   Pursuant to the Court's directives at the close of trial, counsel was directed to file a combined transcript of trial proceedings on or before April 26, 2023. NYSCEF Doc. No. 191. The Court extended the deadline to May 3, 2023. NYSCEF Doc. No. 200. Parties did not file a combined transcript of trial proceeding as directed. Parties did file the transcripts in piecemeal form with the final transcript filed on June 15, 2023.

2.    See Def. Ex. 106 (11/17/22 [Redacted] Mortgage St.) (total amount due is $117,156.88; total amount overdue for the period 2/1/21 through 11/1/22 is $112,042.43).

3.   Parties did not offer into evidence at trial the February 5, 2022 Appraisal Report prepared by Jane M. Moss that values the Marital Residence at $955,000 as of said date. See NYSCEF Doc No. 89. Even if the parties had offered this document into evidence at trial, the Court's position is that the appraisal value is now stale given the approximately eighteen (18) months that have elapsed, and the Court still has insufficient information to determine the payoff amount of the mortgage and/or current equity in the Marital Residence.

4.   Parties post-trial submissions with respect to the equitable distribution of these accounts are inaccurate and conflate the ending balance with that of Plaintiff's Robinhood account. See NYSCEF Doc. Nos. 193 at 10, 195 at 5.

Anar Rathod Patel, J.