Joseph G., Plaintiff v. Mary R.G., Defendant (2026)

Procedural History

By Summons with Notice filed July 23, 2020, Plaintiff Joseph G. (hereinafter "Husband") commenced the present action for divorce against Defendant Mary R. G. (hereinafter "Wife"). A Verified Complaint was filed by Husband on August 7, 2020. Wife filed an Answer to Husband's Complaint on August 11, 2020, and asserted a counterclaim for divorce. At commencement both parties were represented by counsel. Husband was represented by Catherine Bridge Esq. and Wife was represented by Elliot Polland Esq.

The present action is the third action for divorce between the parties. Husband initially filed an action for divorce with the filing of a Summons and Complaint under index number 50201/2020 on March 4, 2020. A few days later Wife commenced an action for divorce with the filing of a Summons with Notice on March 11, 2020, under index number 55011/2020. At the time she commenced the first divorce action, Wife was represented by Yonatan Levoritz Esq. It is unclear when, or under what circumstances, Mr. Levoritz was discharged. These cases, which predate the present divorce actions, were both abandoned. Both cases were ultimately consolidated and dismissed on consent by Order of this Court dated September 26, 2025. For all purposes relevant to this Decision, the date of commencement is July 23, 2020.

Ms. Bridge and her partner Joseph Magnotti Esq. represented Husband until May 11, 2024, when they were discharged as Husband could no longer afford their representation. Husband was then self-represented from May 11, 2024, until June 27, 2025. During this period of self-representation, this Court appointed Mr. Dominick Gullo Esq. to represent him on the limited issues of custody and visitation. Mr. Gullo served as Husband's court appointed counsel from April 2, 2025, until the issues of custody and visitation were resolved by So-Ordered Stipulation dated May 8, 2025. On June 27, 2025, a Notice of Appearance was filed by H. Benjamin Perez & Associates P.C. indicating that firm's representation of Husband. Husband was represented by Benjamin Perez Esq. throughout trial. Mr. Perez also remains Husband's post-dispositional attorney for the purpose of receiving any distributive awards payable to Husband (See Order dated 10/17/25).

Wife's history of representation is more complicated. Wife was initially represented by Elliot Polland Esq. from commencement until November 15, 2020, when Mr. Polland was substituted by Joseph O'Shea Esq. Mr. O'Shea represented Wife until April 28, 2021, when Wife discharged him. On May 5, 2021, Mary Condello Esq. filed a Notice of Appearance as Wife's counsel. Ms. Condello represented Wife until November 22, 2022, when she filed an Order to Show Cause (Seq. No. 11) seeking to be relieved. Therein, Ms. Condello alleged that there had been a "complete breakdown of the attorney-client relationship" and that Wife had repeatedly acted inappropriately by screaming at her and her office staff. Ms. Condello's motion was rendered moot when she was replaced by Daniel B. Nottes Esq. on December 1, 2022. Wife was represented by Mr. Nottes until she discharged him on January 25, 2023. On February 6, 2023, a Notice of Appearance was filed on Wife's behalf by Benjamin Haber Esq. Wife was represented by Mr. Haber until she discharged him on October 19, 2023. Wife remained self-represented for approximately one year from October 19, 2023, until October 1, 2024, when Wayne Mazur Esq. filed a Notice of Appearance on her behalf. Mr. Mazur's representation continued until January or February 2025 when he was replaced by Val Kleyman Esq. A Consent to Change Attorney was never filed discharging Mr. Mazur nor was a Notice of Appearance ever filed by Mr. Kleyman. Mr. Kleyman's representation continued until May 5, 2025, when he was discharged by Wife. Wife represented herself from May 5, 2025, through the commencement of trial on August 11, 2025. Wife was self-represented for the first six days of trial  ¹ until October 7, 2025, when Randolph Clarke, Jr. Esq. filed a mid-trial Notice of Appearance on her behalf. In total Wife has had eight retained attorneys who represented her in this matter.

Mr. Clarke zealously and professionally represented Wife throughout the remainder of trial despite the difficulties inherent in being retained mid-trial. However, while this matter was sub-judice awaiting summations, Mr. Clarke filed an Order to Show Cause (Mot. Seq. No. 035) seeking to withdraw as counsel alleging a "complete breakdown of communication" regarding the preparation of written summations. At or around the same time, Wife filed several letters indicating that she desired to file her summation pro-se. This Court declined to sign Mr. Clarke's Order to Show Cause and instead directed Wife to cooperate with her attorney in the preparation of her summation (See Order 3/10/26). Despite this Court's Order, Wife filed a pro-se Summation on March 23, 2026. On March 30, 2026, Mr. Clarke re-filed his Order to Show Cause seeking to withdraw as counsel (Mot. Seq. No. 036). This Court's conformed Order to Show Cause directed Wife to file opposition by "close of business on April 15, 2026" or the motion would be granted without opposition. No opposition was filed. Accordingly, Mr. Clark was relieved as counsel nunc pro tunc to April 15, 2026 (See Order dated 6/11/26).

When the present case was filed in 2020 it was originally assigned to Part MP12 of this Court, presided over by the Hon. Barbara Panepinto. Upon Judge Panepinto's retirement, the matter was transferred to Part MP3 of this Court, presided over by the Hon. Paul Marrone, Jr., in May 2022. The matter was subsequently transferred to this Part for trial in or around January 2025. This case has been bitterly contested by the parties for over five years. The official NYSCEF file for this action contains 859 documents, including thirty-six motions.

The parties were married on June 21, 2003, in a civil ceremony performed in New York. There are two children of this marriage: J.G. (d.o.b. **/1**/06); and G.G. (d.o.b. **/**/2011). Wife is currently 58 years old (d.o.b. **/**/68); Husband is currently 60 years old (d.o.b. **/**/65). By Preliminary Conference Order dated September 22, 2020, the parties agreed that Husband would be granted a divorce on the grounds that the marriage had broken down irretrievably for a period of six months pursuant to DRL § 170(7). By So Ordered Stipulation dated May 7, 2025, the parties resolved the issues of custody and visitation as they relate to G.G. Wife was granted sole legal and residential custody. Husband was granted liberal parenting time with G.G. when he visits New York. Husband currently resides in Florida. J.G. reached the age of 18 and aged out of the custody jurisdiction of this Court on September 19, 2024.

The issues of child support, maintenance, equitable distribution, and counsel fees were tried before this Court over the course of ten days between August 11, 2025, and October 17, 2025. In addition to these trial issues, seven motions were referred to the trial Court, including two motions seeking to hold Wife in civil contempt. At trial, Husband testified on his own behalf and called one additional witness, the court appointed neutral business evaluator Douglas Sosnowski. Husband offered fifty-two documents into evidence, forty-five of which were accepted. Wife testified on her own behalf and called two additional witnesses, her accountant David B. and her cousin Phyllis R. In addition to the "in person" witnesses called by Wife, Wife also submitted an affidavit prepared by Husband's adult son, M.G. Husband and Wife agreed to the submission of the affidavit into evidence in lieu of live testimony (Def. Ex. AAQ). Wife offered ninety-four documents into evidence, fifty-two of which were accepted. Judicial Notice was taken of several orders. Post-trial written summations were submitted by both parties.

As discussed above, Wife submitted a self-represented summation, despite being ordered by this Court to confer with her attorney of record and submit a summation prepared by counsel. Wife's eighty-page summation is well written, comprehensive, and includes citation to law and the trial record. However, it is also procedurally improper. Summations, whether written or oral, are not evidence and only serve as legal argument based upon the "four corners of the evidence" adduced at trial. See People v. Anderson, 29 NY3d 69 (2017); see also C. v. R., 118 N.Y.S 3d 379 (Sup. Ct. Kings. Cty. 2019). Wife's Summation is replete with allegations of fact that fall outside the 1200 page trial record. Wife clearly utilized her summation as an attempt to supplement her trial testimony where that testimony was lacking. Wife further used her summation to suggest the existence of documentary evidence that was not offered at trial. "A summation is not an opportunity to reopen proof, supplement the evidentiary record, amend the proceedings, or recast testimony." Neogenestar, LLC v. Crivera Partners Corp., 249 N.Y.S.3d 925 (Sup. Ct. Rich. Cty. 2026). To the extent that Wife's summation raises allegations of fact that were not elicited during trial, those facts, and the related arguments, have not been considered by this Court.

An Inquest on the issue of grounds was held on the first day of trial, August 11, 2025. Husband was granted a Judgment of Divorce on the grounds that the parties' marriage had broken down irretrievably for a period of six months pursuant to DRL § 170(7). The issuance of a Judgment of Divorce was held in abeyance until the remaining issues could be adjudicated as required by this statute.

The Marriage

Few details of the parties' premarital courtship or their relationship during the marriage are available to this Court given the limitations of the trial record. Husband's testimony was self-serving on direct and often abrasive and condescending on cross examination. Despite admonishment from this Court, the interactions between Husband and Wife during her periods of her self-representation frequently devolved into arguments reminiscent of the marital strife they both described during their relationship.

While self-represented, Wife's narrative testimony was rambling and inconsistent. After Wife retained counsel, he attempted to correct the omissions from Wife's prior testimony. This resulted in frequent contradictions. Moreover, Wife was primarily focused on topics not germane to the issues relevant to this proceeding. Despite several reminders that this Court is primarily tasked with equitably diving the marital estate that existed at the time of commencement, Wife remained primarily focused on events that allegedly affected the value of her businesses before and after the relevant time period.

Given these limitations, this Court does not possess a clear factual narrative that would typically accompany a complex financial trial with multi-million-dollar assets. Despite a 1,200 page trial record, this Court was required to piece together the events that led to the breakdown of the parties' marriage and the commencement of not one, but three consecutive actions for divorce. Accordingly, the following factual recitation is a summary of the incomplete narrative offered at trial.

There is little in the trial record regarding the parties' pre-marital relationship. When the parties met Wife was employed as a trader on the New York Mercantile Exchange and Husband owned a printing shop known as "R. S. Graphics." Shortly after the parties married, Husband became employed by Wife's father Vincent R. who owned an energy service company known as C.E. Corp. In 2008 and 2010, Wife and her father created two subsidiary energy service companies, C.E.P. and C.E.G. (collectively "C.E.P.&G."). Wife has been employed as the President of these companies since their inception and is the driving force behind their success in a highly regulated competitive market. Husband's involvement with these marital businesses began while he was still employed by C.E.Corp., which maintained offices on a different floor of the same office building.

In or around 2017, Wife began expressing concern regarding her father's tendency to withdraw capital from the companies. Wife took the position that business profits should be reinvested in the company rather than withdrawn for personal use. Following an argument that would ultimately sever Wife's relationship with her father, a decision was made that Mr. R. would end his involvement with C.E.P.&G. Vincent R.'s fifty percent ownership interest in C.E. P.&G. was transferred to Wife in early 2018. The nature of this transfer was a point of contention between the parties and is discussed in further detail below (See "Equitable Distribution"). After Wife obtained a controlling interest in the companies, Husband resigned from his position with C.E. Corp. and became the Executive Vice President of C.E.P.&G. Husband maintained this position until the parties separated in January 2020.

The parties lived together as a married couple for approximately seventeen years until cross allegations of infidelity caused them to argue and ultimately separate in January 2020. During their marriage, the parties had two children: J. G. (d.o.b. **/**/06); and G.G. (d.o.b. **/**/2011). The trial record supports a finding that the parties enjoyed an upper middle-class lifestyle during their marriage fueled by the success of the marital businesses. The parties resided in a beautiful home located in an affluent area of Staten Island, drove luxury vehicles, went on frequent vacations, and enjoyed the assistance of a housekeeper. While very little trial testimony was dedicated to the children's standard of living, they attended private schools and have thrived academically.

Despite their financial success, both parties testified that their marriage was plagued by domestic strife, especially in its later years. Both parties admitted that they would frequently argue, and that their arguments would often turn hostile with both parties screaming, using profanity and demeaning each other. Both parties also attributed cross allegations of infidelity to the downfall of their marriage. Finally, both parties raised allegations of domestic violence including physical abuse.

The Parties' Positions

Husband's requests for relief are detailed in his Statement of Proposed Disposition and written Summation after Trial. Husband seeks a final award of post-divorce maintenance retroactive to his Summons with Notice. Husband further requests equitable distribution of several assets that existed on the date of commencement. Among other assets, Husband seeks an equitable share of the marital businesses C.E.G. LLC and C.E.P. LLC. Husband also seeks distribution of various other business ventures that the parties invested in during their marriage. In addition, Husband seeks the distribution of several bank accounts, retirement accounts, and life insurance policies. Finally, Husband's trial attorney seeks a counsel fee award of at least $200,000 arguing that Husband is the less monied spouse and that Wife's failure to comply with court orders, frivolous positions, and disruptive behavior unnecessarily prolonged the case and complicated the trial.

Wife's Statement of Proposed Disposition and Summation were both prepared by Wife as a self-represented litigant, although she was represented by counsel when her summation was filed. Therein, Wife identified the same assets and debts as Husband but argues for a vastly different disposition. In sum and substance, Wife argues that Husband's equitable share of the assets accumulated during the parties' marriage should be extremely limited given his conduct during the marriage, including allegations of domestic violence. Wife claims that Husband's temporary maintenance should be terminated and that any request for a final award should be denied. Wife argues that the business ventures that they invested in during their marriage should be deemed losses, and those losses should be attributed to Husband as "marital waste." Wife acknowledges that Husband may be entitled to a share of the equity in the former marital home but argues that she is entitled to various credits which would serve to limit or negate his right to recovery. In addition to an unequal distribution of assets in her favor, Wife seeks an award of prospective child support. Finally, Wife argues that she should not be responsible for any of Husband's counsel fees claiming that his actions delayed this litigation.

Equitable Distribution

When determining the equitable distribution of marital property, the Court must consider the factors set forth in DRL § 236(B)(5)(d). Before making the determinations herein, the Court has reviewed and considered all the enumerated statutory factors. However, this Court has included for discussion only those factors that specifically apply to the facts of this proceeding and this Court's determination. Accordingly, some factors were omitted while others were afforded minimal weight, if any, by this Court. Regarding tax implications, no relevant evidence was offered by either party as to the likely tax impact of any potential award.

Specifically, in this case, the Court has considered the following factors: (a) the income and property of each party at the time of marriage, and at the time of commencement; (b) the duration of the marriage and the age and health of both parties; (c) the probable future financial circumstances of each party; (d) the wasteful dissipation of assets by either spouse; (e) acts of domestic violence committed by either party and the impact of said acts  ² ; (f) the need for the custodial parent to occupy the marital residence; (g) the liquid or non-liquid character of marital property; and (h) any award of maintenance. The enumerated factors also include a "catch all" provision which allows the Court to consider any other specific factor it identifies. Here, the Court has specifically considered Wife's pervasive non-compliance with court orders as a factor when determining equitable distribution.

Equitable distribution law is premised upon the theory that marriage is not only an emotional and physical union between spouses, but also an economic partnership. See Burke v. Burke, 175 AD3d 458 (2d Dept. 2019). "As such, during the life of a marriage spouses share in both its profits and losses." Ospina-Cherner v. Cherner, 178 AD3d 1059 (2d Dept. 2019). When considering issues of equitable distribution, the term "marital property" is to be construed broadly, while the concept of "separate property" is to be construed narrowly. See Price v. Price, 69 NY2d 8 (1986). "Were courts to engage in precise financial tracing, they would be paralyzed by divorcing parties seeking review of every debit and credit incurred during their marriage." Klauer v. Abeliovich, 149 AD3d 617 (1st Dept. 2017). Thus, the specific economic decisions made by the parties during their marriage are not subject to review, rather, the Court must effectuate an equitable distribution of marital assets that exist when the action is commenced, considering all relevant factors. See Mahoney-Buntzman v. Buntzman, 12 NY3d 415 (2009). When a marriage is one of significant duration, and both parties have equally contributed to it, the distribution of assets should be effectuated as equally as possible. See Repetti v. Repetti, 147 AD3d 1094 (2d Dept. 2017); see also Miller v. Miller, 128 AD2d 844 (2d Dept. 1987). In his summation, Husband requests an equal distribution of the marital estate. In her summation, Wife requests an unequal distribution of assets skewed heavily in her favor. However, this contradicts Wife's trial testimony wherein she indicated that it was "never her intention" to seek a larger share of the marital estate (Tr. 10/8/25, pg. 1005).

Factors Considered

(a) Income and Property of Each Party; Standard of Living.

The first factor considered by this Court in determining an appropriate distribution of marital assets is the relative income of each party. For the purposes of equitable distribution, the Court finds that Wife is clearly the monied spouse in this action, having earned an average annual gross income of approximately $860,000 between 2020 and 2024.³ In contrast, Husband's income during his tenure as Executive Vice President of C.E. P.&G never exceeded $136,000. Moreover, after he was terminated from this position by Wife, Husband became temporarily unemployed and reliant upon personal loans, inconsistent maintenance payments and unemployment insurance. Husband has since reinvented himself, obtaining an ownership interest in a nightclub in Florida and taking a lead role in the club's operation and management. As of his 2024 tax return Husband's income improved to $139,360. A more comprehensive discussion of the parties' comparative incomes can be found in relation to the issues of maintenance and child support below.

At trial, both parties testified as to their standard of living during the marriage. Wife testified that the parties would typically spend approximately $14,000 on expenses per month (Tr. 10/7/25, pg. 897). Wife described the marital standard of living as "modest" although she admitted that the parties routinely vacationed and that the subject children always attended private school. Husband offered a vastly different account as to the parties' standard of living. Husband testified that the parties were never in need of money, drove luxury vehicles, frequently vacationed and always had household help including a housekeeper that Wife still employs. Husband also established that the $14,000 figure offered by Wife was inaccurate as her Statement of Net Worth identifies approximately $60,000 a month in household expenses (Def. Ex. AAS; Tr. 10/8/25, pg.1056). After considering both parties' accounts, this Court finds that the parties enjoyed an upper-class lifestyle during their marriage that Wife still enjoys, while Husband's standard of living has significantly decreased. This factor weighs in Husband's favor as his standard of living has been diminished. See Linda G. v. James G., 156 AD3d 25 (1st Dept. 2017).

(b) Duration of the Marriage, Age and Health of the Parties

The parties were married seventeen years before the commencement of the present action. Accordingly, the Court finds that this is a marriage of significant duration. Wife is 58 years old. Husband is 60 years old. Neither party has testified as to any significant health problems which would affect their earning capacity or that would require a larger distributive award than they otherwise would have been entitled to. While Wife is slightly younger than Husband the age gap is not significant. Accordingly, while this factor is relevant, it does not significantly weigh in either party's favor.

(c) The Probable Future Financial Circumstances of the Parties

It is undisputed that Wife is the more monied spouse in this divorce action. Wife is a successful businesswoman who owns and operates two profitable New York City Energy Service Companies that generate millions of dollars in revenue each year. Wife has an advanced education and an established "high six figure" earning capacity. In terms of future earning capacity, Wife arguably has more employment options as a college graduate with experience trading on the mercantile exchange even if her current businesses were to fail.

While Husband only has an eighth-grade education, he has established his abilities as a businessman and entrepreneur. Husband owned his own printing company before he began working for Wife's Father. Husband has executive level experience managing the marital companies. After the commencement of this divorce, Husband has successfully reinvented himself as an owner/operator of a successful nightclub. The Court is not concerned that either party will be unable to support themselves in the future. Accordingly, the Court finds that while both have established their ability to sustain gainful employment, on balance Wife remains the party with the superior financial outlook. Accordingly, this factor weighs in Husband's favor.

(d) Wasteful Dissipation of Assets; Transfers Without Consideration

A wasteful dissipation occurs when a party wrongfully reduces or extinguishes marital assets without a reasonable explanation, or with the intention of depriving the other spouse of that asset. See e.g. Wilner v. Wilner, 192 AD2d 524 (2d Dept. 1993); see also Mage v. Mage, 174 AD3d 884 (2d Dept. 2019). The party alleging the wasteful dissipation bears the burden of proving such waste by a preponderance of the evidence. See Marino v. Marino, 2020 NY Slip Op 02922 (2d Dept. 2020). A wasteful dissipation of assets also occurs when one party transfers a marital asset to a non-party without fair consideration. See DRL § 236(B)(5)(d)(13); see also Shah v. Shah, 100 AD3d 734 (2d Dept. 2012).

As will be discussed more fully below, the trial record supports a finding that Wife has wastefully dissipated at least one significant marital asset, the parties' marital business interest in Nova Panorama, LLC and Nova Foothills, LLC. as she transferred the marital interest in these properties to a member of her extended family for no consideration. Husband further argues that Wife's failure to comply with her pendente lite support obligations, despite having the financial means to do so, has resulted in the unnecessary liquidation of marital assets to satisfy her arrears. Not only has this removed liquid assets from the marital estate, but it also resulted in Wife using funds that were presumptively Husband's in equitable distribution to satisfy support arrears owed to him. In essence, requiring Husband to pay himself. As there is no evidence in the record that Husband wasted marital assets, this factor weighs in his favor.

(e) Acts of Domestic Violence

Both parties credibly testified as to the acrimonious nature of their marriage, which became increasingly worse over time, especially after the birth of their second child G.G. in 2011. Both parties admit that they frequently used derogatory and foul language towards one another, especially during arguments. Wife further testified that Husband would occasionally shove or strike her, but never in front of the children (Tr. 10/7/25, pg. 851). Wife also described several physical altercations between the parties where Husband would grab her by the neck, and she would kick and punch him in response. Wife credibility testified that some of the parties' arguments, including some incidents of physical violence, took place in the offices of the marital businesses, in the presence of employees. This was not only publicly humiliating to Wife but also served to subvert her authority as the companies' President. Both parties accused the other of acts of infidelity which exacerbated the domestic strife.

In January 2020, Husband left the marital home at Wife's request (Tr. 10/8/25, pg. 1033). As a result of the parties' separation, Husband's employment with C.E. P.&G ended. Wife then limited his access to marital funds and cancelled his car insurance and EZ-Pass. In addition, Wife downloaded the call log from Husband's work phone and called numbers until she found the woman with whom Husband was allegedly having an affair. Thereafter, Wife suspended the use of Husband's company issued cell phone. Husband's overreaction to being "cut off" from the business and marital funds, but especially his cell phone, resulted in an incident of domestic violence that took place at the marital home and resulted in the issuance of an Order of Protection in Wife's favor (Tr. 9/23/25 pgs. 250-251). This incident, which took place on May 17, 2020, was recorded on the marital home's surveillance camera and was viewed by the Court on October 7, 2025 as part of this trial (Def. Ex. AQ).

In the video, Husband can be seen standing at the front door of the marital home yelling and violently banging on the door demanding that his phone be reactivated. Wife can be heard on the other side of the door yelling back at him. Both parties used profane and derogatory language, but Husband was clearly belligerent and the primary aggressor of the incident. Husband is then observed repeatedly striking the door, screaming threats and demanding to be let into the house. When Wife failed to comply with his demands, Husband violently kicked the door until he succeeded in kicking a hole through one of its lower panels. Husband is then depicted getting on all fours and yelling profanities and threats of violence through the hole in the door until his adult daughter "Christina" appeared on the scene and calmed him down. Christina was born of a different union and lived across the street from the marital home. Wife credibly testified that this incident left her terrified, shaken and scared for her life. Husband attempted to downplay his behavior before the video was viewed by suggesting that he only lightly kicked the door. The video clearly shows otherwise.

On May 18, 2020, the day after the incident, Wife appeared in Family Court and commenced a Family Offense Proceeding against Husband (See Def. Ex AT). In her Verified Petition, Wife described the May 17th Incident and indicated that she and the subject children were scared for their lives. Wife was granted a Temporary Order of Protection from the Family Court (Delizzo, J.) which directed Husband to stay away from the marital home and to refrain from communication other than text messages relating to the safety and welfare of the children. Wife's Family Offense Proceeding was consolidated into this matrimonial case by Order dated November 19, 2020. The Temporary Order of Protection was reissued on several dates by the Supreme Court (Marrone J.) and continued until March 28, 2025, when the Family Offense Petition was withdrawn on consent and the Temporary Order of Protection vacated (Tr. 10/7/25, pg. 855).

While Wife credibly testified that Husband was "easily triggered" and was often the primary aggressor when the parties argued, Husband also credibly testified as to incidents of domestic violence perpetrated by Wife. Wife testified that while she never considered herself to be the primary aggressor, she was not the type to run away or call the police and would normally "call her brother." (10/8/25, pgs. 1022-1024). Wife testified that when physical altercations occurred between the parties, she would stand her ground and fight back. Wife testified that in addition to what she considered to be self-defense, on at least one occasion, she sprayed Husband with "Windex" (Tr. 10/8/25, pg. 1027). However, Wife denied ever initiating a physical altercation other than the Windex incident. In support of his claims of domestic violence initiated by Wife, Husband also offered a video into evidence (Pl Ex. 52). This video depicted a domestic violence incident between the parties where Wife appeared to be the primary aggressor. This silent surveillance video captured a heated discussion between Husband and Wife in the driveway of the marital home. Husband testified that the subject of the argument was Wife's alleged affair with a business partner (Mark M.). After a short verbal exchange between the parties, Wife is shown taking a wide swing at Husband and striking his face. Husband testified that while this is the only incident for which he had video evidence, Wife routinely slapped him during arguments. Husband also denied ever striking Wife, repeatedly claiming that he "would never hit a woman."

In addition to both parties' credible testimony regarding the acrimonious nature of their marriage, and the video evidence depicting physical acts of violence, this Court was able to observe the nature of the parties' relationship firsthand during trial. When Wife questioned Husband on the stand as a self-represented party, her questions would often lead to arguments that offered a glimpse of what their relationship was like. Both parties had to be repeatedly warned about their outbursts and behavior in the courtroom throughout trial. Husband would frequently laugh or snicker during Wife's testimony. Wife would throw papers into the air and bang her hands on the table. Both parties had to be temporarily excused from the courtroom due to their behavior on more than one occasion. Husband also alleged that several of the male "supporters" that accompanied Wife to the Courtroom were irreputable individuals that were brought to intimidate him. When Wife requested that her supporters step outside, they could be heard screaming profanities at Husband through the closed courtroom door.

When determining equitable distribution, the Court is directed to consider incidents of domestic violence, including their nature, extent, duration and impact. See DRL § 236 (B)(5)(d)(14). While both parties offered credible testimony regarding the caustic nature of their relationship, only Wife offered any evidence as to the effect that Husband's behavior had on her emotionally and in relation to marital businesses. While this Court credits certain aspects of each party's testimony, this Court finds that Husband was more often the primary aggressor. This Court also credits Wife's testimony that several of their arguments (and at least one physical incident) occurred in the workplace, in front of the parties' employees. Accordingly, this Court has considered this factor and finds it weighs in Wife's favor to support an unequal distribution of the value of the marital businesses. See G.K. v. S.T., 213 N.Y.S.3d 705 (Sup. Ct. NY Cty. 2024). However, as both parties engaged in acts of domestic violence against the other, the nature and degree of their actions do not rise to the level that would support a drastic shift in the distribution of assets. See Ilyasov v. Ilyas, 221 AD3d 791 (2d Dept. 2023); see also Howard S. v. Lillian S., 14 NY3d 431 (2010) [finding of "conscience shocking conduct" required to significantly adjust equitable distribution.]

(f) Wife's Non-Compliance with Court Orders / Liquid or Non-Liquid Character of Marital Property

As will be discussed at greater length below, the progress of this case has been severely delayed and frustrated by Wife's persistent failure to comply with court orders. For example, Wife's failure to pay the correct amount of maintenance necessitated the filing of several contempt and enforcement motions, in addition to countless Court records dedicated to enforcement. Husband has established that since the entry of the first Pendente Lite Order in April 2021, Wife has almost never paid the correct sum of maintenance. Instead, she made no payments at all, or partial payments in arbitrary amounts. In addition to increased litigation, Wife's non-compliance resulted in the issuance of several pendente lite enforcement orders which required the liquidation of marital funds to satisfy her pendente lite obligations.

Moreover, when this Court issued orders directing the liquidation of marital funds, Wife would often take it upon herself to "comply" with those orders in the way she believed would be most cost effective or advantageous to her financially. For example, this Court issued an Order dated May 7, 2025, directing Wife to reduce the considerable amount of arrears that she owed Husband by either taking out a $250,000 loan or by liquidating $250,000 from her Empower 401K. This Order further required that $58,850 of this amount was to be paid directly to Husband to reduce pendente lite arrears and the rest was to be placed into escrow to fund ongoing obligations. Rather than comply with this Order, or prove to this Court why she could not, Wife elected to take a loan for $50,000 from her 401K, a loan for $60,000 from her Mother and issue a personal check in the amount of $15,000. While it is unclear from the trial record what she did with this $125,000, she testified that "it was my opinion after I gave, I don't know, $159,000, $160,000, I complied with the May Short Form Order" (Tr. 10/7/25, pg. 867). Contrary to Wife's testimony, the withdrawal of $125,000, $159,000, or $160,000 was not in compliance with the May 7th Order and only served to further complicate the parties' finances.

Wife's non-compliance with court orders has required this Court to order the liquidation of marital assets that otherwise would have been preserved as liquid assets for distribution. See DRL § 236 (B)(5)(d)(7); see also Fanelli v. Fanelli, 14 AD3d 592 (2d Dept. 2005). Wife's non-compliance also forced Husband to liquidate his limited retirement accounts and assets to support himself and to compensate his attorneys. These liquidations were prejudicial to Husband as this Court must order distributive awards where it could have otherwise ordered a simple "roll-over" or transfer of preserved funds. See e.g. Fleischmann v. Fleischmann, 987 N.Y.S.2d 669 (Sup. Ct. West. Cty. 2009). Accordingly, this Court finds that this factor weighs Husband's favor and supports the various distributive awards granted to Husband herein.

Distribution of Assets and Debts

Having considered the above factors, the Court will distribute the parties' marital assets as set forth below. In making its determination, the Court notes that this is a marriage of significant duration and starts with the presumption that the assets should be distributed as equally as possible. See Kamm v. Kamm, 2020 NY Slip Op 02465 (2d Dept. 2020); See Achuthan v. Achuthan, 117 N.Y.S. 3d 667 (2d Dept. 2020). However, equitable distribution does not necessarily mean equal distribution. See Arrigo v. Arrigo, 38 AD3d 807 (2d Dept. 2007). Here, neither party has established why the factors above, or the overall circumstances of this case, require a significant deviation from the presumption of an equal distribution of assets. See Achuthan v. Achuthan, 179 AD3d 751 (2d Dept. 2020). However, as the parties' most significant assets are marital businesses that cannot simply be divided equally, the Court has analyzed each party's respective contribution to the value of those businesses. See Fleurantin v. Fleurantin, 244 AD3d 817 (2d Dept. 2025); see also Cotton v. Roedelbronn, 170 AD3d 595 (1st Dept. 2019); Y.L. v. L.L., 129 N.Y.S.3d 669 (Sup. Ct. Rich. Cty. 2020).

1. Business Ventures

a) C.E.P. LLC and C.E.G. LLC.

The valuation and distribution of C.E.P. LLC and C.E.G. LLC constituted the parties' most significant point of contention throughout this divorce proceeding. The companies also constitute the parties' most significant assets. It is undisputed that during their marriage, the companies were the parties' main source of income and generated considerable wealth. In her Statement of Proposed Disposition and Summation after trial, Wife argues that these companies should be considered her separate property and that Husband should not be entitled to any distributive award representing a portion of their value. In his Statement of Proposed Disposition and Summation after Trial, Husband takes the position that both entities should be considered marital property and that he should be granted a distributive award equal to one half of their value in consideration of his direct and indirect contributions, as an executive employee and as a spouse.

Although these companies constitute two distinct business entities, they were typically treated by the parties, and by the Court's neutral business evaluator, as a single entity referred to as "C.E.P.&G." The companies shared employees, operated out of the same office, had a similar business model, and are owned and operated by Wife. C.E.P.&G are the proverbial "successors" of a company owned by Wife's late Father, known as C.E. Corp. C.E. Corp., was created in 1977 and operates as a reseller of heating oil to both commercial and residential clients. Husband was employed by C.E. Corp. before the marital businesses were created.

C.E.G. was formed in 2008 and C.E.P. in 2010. Wife testified that the companies did not become "active" until late 2012 early 2013. When the businesses were created, Wife was allocated a controlling 51% ownership interest and her father Vincent R. was allocated the remaining 49%. As the parties were married in 2003, the Court is required to presume that both businesses constitute marital property. See Wen Wen Sun v. Ti Zhou, 243 AD3d 735 (2d Dept. 2025). It is the burden of the party seeking to overcome this presumption to prove that the property in dispute is separate property. See Sosnowik v. Sosnowik, 238 AD3d 795 (2d Dept. 2025). This generally can not be proven through testimony alone and must be supported by documentary evidence. See Ferrante v. Ferrante, 186 AD3d 566 (2d Dept. 2020). This Court finds that Wife failed to offer documentary evidence sufficient to rebut the presumption that the businesses formed during the marriage constituted marital property. See Fields v. Fields, 15 NY3d 158 (2010); see also Mashieh v. Mashieh, 199 AD3d 911 (2d Dept. 2021).

C.E.P. and C.E.G. are Energy Service Companies or "ESCO's." Wife testified that a layperson would typically construe them to be utility providers, but that they are more appropriately considered utility "resellers." C.E.P. is in the business of "reselling" electricity to its customers and C.E.G. "resells" natural gas. Both companies operate within the five boroughs of New York City and in Long Island. Both companies operate out of the same rented office space located on M* Avenue in Staten Island.

The ownership structure of C.E.P.&G changed twice during the parties' marriage. In 2014, an investor known as "Mark M." acquired a 10% ownership interest in the company. Mr. M.'s 10% share was taken from Mr. R.'s 49% share. In or around 2016, Wife's relationship with Mr. M. became a point of contention between the parties. Husband became convinced that the two were having an affair and confronted them, demanding that they stop. Wife denied that she and Mr. M. were involved in a "sexual" relationship but admitted that they "loved each other" (Tr. 9/26/25, pg. 784). The domestic violence incident where Wife slapped Husband in the driveway of their home resulted from an argument regarding Mr. M.

Mr. M. "relinquished" his ownership interest in 2018 and formed a company that directly competed with C.E.P.&G. Mr. M. a then sued Wife, claiming that he was not compensated for his shares. Mr. M.'s lawsuit was ongoing as of the time of trial. The circumstances surrounding the transfer of Mr. M.'s 10% ownership interest back to Wife was not fully developed at trial. At times Wife took the position that she owned 100% of the company while at other times she claimed that Mr. M. still owned 10% "on paper." However, in all instances Wife admitted that she did not acknowledge his 10% ownership as a practical matter, and that she received 100% of the profits and was accountable for 100% of the losses for the business (Tr. 10/9/25, pg. 1066). Accordingly, for purposes of equitable distribution, this Court finds that Mr. M.'s technical ownership interest has no bearing on the distribution of this asset. Notably, his pending lawsuit does not seek the restoration of his 10% ownership interest, but rather the value of his former 10% ownership interest in damages.

The transfer of Mr. M.'s 10% ownership interest to Wife occurred during the marriage and before commencement of the present action. Transfers of equity that take place during a marriage are presumed to be marital unless they are clearly established to be separate. See Fields v. Fields, 15 NY3d 158 (2010). Here, Wife failed to meet her burden of establishing that this transfer of equity should be considered her separate property. See Varnit v. Varnit, 233 AD3d 917 (2d Dept. 2024). Accordingly, for equitable distribution purposes, this Court finds that Wife owned 100% of the equity in the marital companies on the date of commencement and that her acquisition of Mr. M.'s 10% constituted marital property.

At or around the time of Mr. M.'s withdrawal, Wife's father Vincent R., also withdrew from ownership following an incident that would ultimately cause a longstanding rift in Wife's relationship with her father. Wife credibly testified that her father was extremely generous, but also prone to improvident spending. Moreover, as a matter of principle, her father believed that it was his right to withdraw capital from businesses that he owned as he saw fit. As such, he would frequently take cash withdrawals from C.E.P.&G for his private use (Tr. 9/24/25, pg. 497). Wife credibility testified that she held a much different business perspective and believed it was important to have cash on hand, and to reinvest profits (Tr. 9/25/25, pg. 675). When Wife raised an objection to her father's withdrawals, it caused an argument that led to Mr. R. relinquishing his interest in the companies (Tr. 9/24/25, pgs. 494-495). Wife testified that while the fight with her father took a heavy emotional toll, it was necessary to stop him from "causing any more harm" to the businesses (Tr. 9/25/25, pg. 659). The circumstances surrounding Mr. R.'s withdrawal were disputed at trial as the nature of his departure would have significant ramifications on the businesses' value for equitable distribution purposes.

Husband takes the position that Mr. R. was compensated for the value of his 39% interest in the company at the time of his withdrawal. In this regard, it is undisputed that Mr. R. withdrew the sum of approximately $688,800 from business accounts at or around the time of his departure. This transfer was contemporaneously documented to Wife by the business accountant, Mr. David B. (Pl Ex. 39). Mr. B.'s letter to Wife, dated December 4, 2020, indicated that Wife acquired her father's 39% interest as a gift valued at $0, while simultaneously noting that Mr. R. was paid capital totaling $718,730 during 2018. Husband argues that Mr. R.'s contemporaneous cash withdrawal and Mr. B.'s letter to Wife constitute compelling evidence that he was compensated for his 39% equity interest and thus that his transfer of equity to Wife could not constitute a gift. See e.g. Matter of Rodman, 116 AD3d 422 (1st Dept. 2014).

Wife takes the position that the transfer of her father's 39% interest to her was an inter vivos gift, without consideration, and therefore constitutes her separate property. Wife argues that this Court should not correlate the cash withdrawal made by her father to the transfer of his equity. In support of her position Wife offered a document entitled "Assignment of Membership Interest" into evidence (Def. Ex. AD). This document, which is signed by both Mr. R. and Wife, indicates that his 39% ownership interest was transferred to his daughter as a "gift" for "no consideration." Wife admits that this agreement was effectuated at some point in the middle of 2018, after the events at issue took place, and that it was post-dated to January. This Court finds that the fact that the document was post-dated, a discrepancy relied upon by Husband as evidence of fraud, is irrelevant to the intentions of Wife and her father. Wife credibly testified that she believes the document was post-dated for tax purposes.

By Order dated August 28, 2023 (Marrone, J.), Brisbane Consulting Group., LLC was appointed to value all the parties' business interests, including C.E.P. LLC and C.E.G. LLC. The cost of this evaluation was attributed 100% to Wife, subject to reallocation. Although the August 28th Order did not include a valuation date, Brisbane correctly utilized a date of commencement value. Generally, the proper valuation date for a business that is in one party's name and is being actively managed is the date of commencement. See Izhaky v. Izhaky, 189 AD3d 617 (1st Dept. 2020).

As indicated above, Brisbane valued the two individual companies as one combined business entity. On or about May 10, 2024, Brisbane issued a "draft report" which offered a preliminary date of commencement value of $4,583,000 for the two businesses. Thereafter, the business' accountant Mr. David B. contacted Brisbane and requested that certain revisions be made to the draft report. The requested revisions related primarily to "discretionary expenses" and "income adjustments." At Mr. B.'s request, and after reviewing the supporting documentation provided, Brisbane agreed to "recharacterize" several "personal expenses" as valid "business expenses" (Tr. 9/24/25. pg. 348).

On or about February 6, 2025, Brisbane issued its "final report" and offered two potential values for the company. The utilization of one value over the other is contingent upon this Court's determination as to whether Mr. R.'s 2018 transfer of ownership in the companies to Wife constituted a "gift of equity" or a "compensated exchange." The Brisbane Report (Pl Ex. 24) indicates that the businesses' had a combined date of commencement value of $3,766,700 if the 2018 transfer was considered an exchange for consideration as argued by Husband. However, if the Court were to agree with Wife that the transfer was a gift, the report concludes that the "combined appreciation in value of Wife's combined ownership interest" during the marriage would be $2,931,000. In this instance, the "combined ownership interest" would include both her initial 51% interest and the 10% interest relinquished by Mr. M., which are both marital, and the 39% interest obtained as a gift.

A gift from a non-spouse to one spouse within a marriage constitutes that spouses' separate property. See Chase v. Chase, 208 AD2d 883 (2d Dept. 1994). However, a business interest that constitutes one party's separate property is still subject to claims of appreciation during marriage due to the contributions of the non-titled spouse. See Price v. Price, 69 NY2d 8 (1986). In situations where a marital asset was acquired in part with separate property, the spouse who made the separate property contribution is entitled to a credit for the value of that contribution before determining the marital value of the asset. See Szypula v. Szypula, 42 NY3d 620 (2024). The burden is on the spouse claiming a separate property contribution to prove and segregate that contribution's value. See Kaufman v. Kaufman, 189 AD3d 31 (2d Dept. 2020). The Brisbane valuation report opines that the value of Wife's separate property contribution was $835,200, a figure not challenged by Wife. Accordingly, if this Court determines that the transfer of equity was a valid gift, and grants Wife a separate property credit, the date of commencement value of the remaining marital equity becomes $2,931,000.⁴

Mr. Douglas Sosnowski, who prepared both the draft and final report, testified as a neutral witness in support of his findings on September 24, 2025. The parties stipulated to his credentials as an expert in forensic accounting. At the onset, Mr. Sosnowski testified that the valuation of the C.E.P.&G. companies was frustrated by difficulty in obtaining the necessary documentation from Wife (Tr. 9/24/25, pg. 349). As for the issuance of a draft report followed by a final report, Mr. Sosnowski credibly testified that this was his normal practice. The issuance of a draft report was intended to allow both parties to suggest changes to the draft. Mr. Sosnowski credibly testified that he spoke to both parties, or representatives from both parties after the issuance of the draft report and before the issuance of the final report. He further testified that any changes to the report were vetted and supported by documentary evidence. Mr. Sosnowski rebutted any claims by Husband that he was inappropriately influenced by calls from Wife's accountant, Mr. B.

As to the most relevant issue, Mr. Sosnowski testified that Mr. B. "pushed" for a finding that Mr. R.'s transfer of equity to Wife in 2018 constituted a gift. However, neither he nor Wife could not produce a "gift tax return" despite repeatedly being asking for one (Tr. 9/24/26, pg. 359). On cross examination, Mr. Sosnowski admitted that he received a copy of the "Gift Transfer Agreement" relied upon by Wife. However, he could not make a conclusion as to the nature of that transfer based upon on that document alone as his report acknowledges that Mr. R. "received distributions totaling $688,800, which represent(ed) the balance of his capital accounts" (Pl. Ex. 24, pg. 9). As Mr. Sosnowski observed proof supporting both parties positions, he identified the discrepancy as an issue for this Court to decide and offered two different values dependent upon the Court's decision (Tr. 9/24/26, pg. 415).

Mr. Sosnowski did, however, acknowledge that his valuation was incomplete given the status of the companies' collateral account. It was established through Wife's testimony, and through the testimony of Mr. Sosnowski, that ESCO companies are required by law to maintain collateral accounts. Mr. Sosnowski opined that this collateral requirement can either be satisfied by the posting of personal assets, or business assets. In the context of C.E.P.&G the collateral requirement was satisfied by an account held by an entity known as "Blackrock Liquidity Funds." Mr. Sosnowski admitted that when he conducted his evaluation, he was aware of the collateral requirement, and that he saw evidence of the existence of a collateral account in a "footnote" in the companies' financial statements. However, from what he saw, he could not discern the amount of the account, the identity of the financial institution, or whether it constituted a posting of personal collateral or business collateral.

When questioned about the nature of collateral accounts, and the requirements of financial reporting, Mr. Sosnowski opined that the companies' Blackrock Account was likely a "business funded collateral account," as it appeared as a footnote in the companies' financial documentation (Tr. 9/24/26, 419). Mr. Sosnowski further opined that the value of a collateral account is relevant to the fair market value of the company, as the contents of the collateral account would result in a dollar for dollar increase in the market value upon a hypothetical sale (Tr. 9/24/26, pgs. 363-364.) Finally, Mr. Sosnowski admitted that he failed to include the value of the Blackrock account in his report because it was not included as an asset on the balance sheets of the company, although he opined that it should have been (Tr. 9/24/26, pg. 419). Accordingly, Mr. Sosnowski admitted that the value of the Blackrock account in 2020, if established, should be added to either of his suggested market values.

Husband has established through a Blackrock Account Statement offered into evidence that the value of the Blackrock account in December 2020 was approximately $1,021,269 (Pl. Ex. 35). This Court finds that the December statement is a fair approximation of the amount required to be maintained by the businesses on a consistent basis, as required by the "New York ISO" (Tr. 9/24/25 pg. 465). Accordingly, this Court finds the figure to be a fair representation of what the account held on the date of commencement. This account statement further confirms that the collateral account was business funded, as C.E.P. LLC. is identified as its owner. When questioned about this account, and why it was never exchanged in discovery, Wife admitted that it was the businesses' account and was not funded with her personal money (Tr. 9/24/26, pg. 461).

Although Wife vehemently disagrees with the valuation offered by Brisbane, she failed to retain her own expert to offer a counter value. Rather, Wife called Mr. David B. CPA as a witness. Mr. B. has served as an accountant for C.E.P.&G for ten years and prepares Wife's personal taxes. At the time of his examination Wife was self-represented. Before any testimony was elicited, Husband's counsel raised an objection as to the nature of his testimony, as he was not disclosed as an expert pursuant to CPLR § 3101(d) and no report was exchanged detailing the nature of his testimony. Accordingly, this Court ruled that while Mr. B.'s testimony would potentially be material and relevant to the issues in this action as a "fact witness" he would be precluded from offering testimony that would typically be given by an expert witness (Tr. 9/25/25, pg. 513). Despite this ruling, many of Wife's questions elicited responses that straddled the line between the personal knowledge of Mr. B. and the opinion of an expert. When considering Mr. B.'s testimony, this Court has disregarded any testimony that would constitute the purview of an expert and has only considered the testimony offered as a fact witness. See Waters v. East Nassau Medical Group, 92 AD2d 893 (2d Dept. 1983); see also Angeli v. Mass, 2010 NY Slip Op 30408 (Sup. Ct. NY Cty. 2010); Genao v. Bronx Lebanon Hosp., 120 N.Y.S.3d 581 (Sup. Ct. Brx. Cty. 2019).

Mr. B. testified that in his role as the businesses' accountant he communicated several concerns to Brisbane regarding what he saw as errors in their draft evaluation. He testified that among other concerns he believed that the "capitalization rate" utilized by Brisbane was too low and the tax rate too high. Mr. B. also raised concerns regarding what he and Wife referred to as a "reset order" that took place in 2016. Mr. B. testified as to how this change in the regulatory laws of New York made doing business as an energy reseller much more difficult. However, as indicated by Mr. Sosnowski and admitted by Mr. B., while this regulatory change became law in 2016 it was not implemented until 2021 or 2022, after the 2020 valuation date used for the businesses (Tr. 9/25/25, pg. 523). As discussed above, Mr. Sosnowski credibly testified that he took Mr. B.'s concerns into consideration and made several of the changes he requested before he issued his final report. Notably, when cross-examined, Mr. B. admitted that he was not retained to do a business evaluation, he's not accredited to do a business evaluation, his practice does not include business evaluations for matrimonial cases, and he never prepared a valuation report for the businesses at issue (Tr. 9/25/25, pgs. 552-553). Accordingly, while this Court finds that Mr. B. testified credibly, his testimony as a fact witness was insufficient to change this Court's opinion as to the fair market value offered by the Court's neutral expert witness.

After considering the relevant evidence offered by both parties, and with significant weight being afforded to the testimony and report of the Court's neutral expert, Brisbane Financial, the Court determines that the date of commencement value of the combined enterprises known as C.E.P.&G was $2,931,000. In so ruling, this Court finds that Wife's initial 51% interest in the companies was marital. The Court further finds that the relinquishment of Mr. M.'s 10% interest was also marital. However, the Court credits Wife's testimony and finds that the Assignment of Membership Interest documentation is sufficient to establish that she obtained a gift of equity from her father. Wife does not contest that her father took equity at or around the time of his departure. However, she explained that the equity that he took was not reflective of the value of his 39% ownership interest. Wife testified that the business was never valued, and that, in her opinion, his 39% ownership interest would have been worth considerably more than the amount he withdrew. (Tr. 9/24/25, pg. 493).

The argument between Wife and her father resulted in a rift in their relationship that was never repaired before his passing. It further resulted in her father expressly disinheriting Wife in his Will (Pl. Ex. 44). When asked to opine on why her father would transfer his 39% ownership interest as a gift and simultaneously disinherit her, Wife credibly testified that his gift of equity represented her inheritance while he was still alive (Tr. 9/24/25, 499). This Court credits Wife's testimony and finds that withdrawal of $688,800 as a capital distribution was part of a pattern of withdrawals and was not intended to be consideration for his exchange of equity. The Court further finds that the transfer of equity was an inter vivos advance on her future inheritance and that it constituted a separate property gift for equitable distribution purposes. See Feldman v. Feldman, 194 AD2d 207 (2d Dept. 1993); see also DeNiro v. DeNiro, 185 AD3d 465 (1st Dept. 2020). This gift of equity created a separate property interest in the business equal to the value of her father's 39% ownership. Brisbane determined that the value of the gift transfer was $835,200.

However, this Court is also persuaded that the $1,021,269 contained in the collateral Blackrock account should be added to the value of the businesses. While this Court credits Wife's testimony that the companies cannot operate without this collateral, the proper measure of valuation is the "fair market value" of the companies if they were to be sold. In other words, "the price a willing buyer would pay a willing seller." J. Nazzaro Partnership, L.P. v. State of New York, 205 AD3d 690 (2d Dept. 2022); see also Grunfeld v. Grunfeld, 255 AD2d 12 (1st Dept. 1999). In a hypothetical sale to a third party the funds in Blackrock would need to be accounted for. They would either be transferred along with the business, resulting in a dollar for dollar increase in value, or withdrawn, resulting in the creation of a $1,021,269 marital asset. Thus, as opined by Mr. Sosnowski, the value contained in his report should be increased by the value of the collateral account resulting in an adjusted date of commencement value of $3,952,269 for purposes of equitable distribution.

Having determined the commencement date value of the C.E.P.&G. companies, the Court must now determine Husband's equitable share of the same as a non-titled spouse. While the value above includes both marital and separate property ownership interests held by Wife, the analysis for each interest requires the court to determine Husband's contributions to the businesses. It was Husband's burden at trial to establish his entitlement to a percentage of the companies' value based upon his direct contributions to the business as an employee, and his indirect contributions as a spouse. See Westbrook v. Westbrook, 164 AD3d 939 (2d Dept. 2018); see also Scher v. Scher, 91 AD3d 842 (2d Dept. 2012). Husband is entitled to a distribution of both the 61% marital interest in the companies and any increase in value during the marriage of Wife's 39% separate property interest that was attributable to his contributions. See Culman v. Boesky, 207 AD3d 18, 1st Dept. 2022).

Both parties testified at length regarding Husband's direct contributions, or lack thereof, to C.E.P.&G. Husband offered a narrative where he was a driving force behind the companies' success as Executive Vice President often referring to himself as "instrumental." Wife, on the other hand, offered a vastly different narrative, claiming that Husband's presence in the office was disruptive, that he was lazy, nasty and dismissive and more of a drain on the companies than an asset. This Court finds that the truth lies somewhere in between the parties' self-serving accounts.

It is uncontested that Husband was a valued employee of C.E. Corp. the "parent company" of C.E.P.&G. Husband had a close personal and business relationship with Wife's father and helped run his business for many years. When C.E.P.&G were formed Husband split his time working part time for C.E. Corp. and part time for C.E.P.&G at the direction of Wife's father. Husband's initial involvement with C.E.P.&G occurred while he was still employed full-time by C.E. Corp. However, in or around 2015 Husband was added to the books as a part-time employee to reflect the work he was doing (Tr. 9/22/25, pg. 28). This Court credits Husband's testimony that he utilized the experience that he obtained working for C.E. Corp. to help C.E.P.&G grow in their early years.

In 2018 when Mr. R. transferred his shares in the company to Wife, Husband testified that he faced a difficult choice as he was loyal to both Wife and her father, who were no longer on speaking terms. Husband claims that he chose to remain loyal to Wife, resigned from his position with C.E. Corp., and began working for C.E.P.&G full time. Wife offers a different version of events and claims that he was fired by her father, but it is undisputed that in 2018 Husband became a full-time employee of the marital businesses and was given the title of Executive Vice President. His first task as Vice President was to assist Wife in relocating the businesses' office from Brooklyn to Staten Island. The Court credits Husband's testimony that he was deeply involved in the process of finding the new office and setting it up. His assistance included purchasing office equipment, running "Cat 5" cables, setting up computers and meeting with third party providers such as Verizon (Tr. 9/26/25, pgs. 763-766).

Husband was employed full time by C.E.P.&G as Executive Vice President for approximately two years. During that time, he was involved in the day-to-day operations of the company and conferred with Wife on important business decisions. Wife admitted that Husband's responsibilities including opening the office every morning as he was an "early bird" (Tr. 9/26/25, pg. 777). Husband's employment with the companies ended in or around January 2020 when he was terminated by Wife. At the time of his termination, Husband was making approximately $130,000 a year and received additional benefits including the use of a luxury vehicle and cell phone service paid for by the companies. Husband credibly testified that his sudden termination left him in a dire financial position and ultimately resulted in him withdrawing $250,000 from the parties' home equity line of credit and relocating to Florida for a business opportunity in that state.

However, this Court also credits Wife's testimony that Husband's role diminished after the companies moved to Staten Island and as their personal relationship began to sour. Wife was, and remains, the driving force behind C.E.P.&G's success in a volatile and competitive field. In addition to her own testimony, Wife called Ms. P.R., her first cousin, who was an employee of C.E.P.&G. from January 2018 to November 2019. However, Ms. R. admitted that Husband had no direct involvement with her role as an "in house accountant" (Tr. 9/25/25, pg. 603). Accordingly, Ms. R. had little personal knowledge as to Husband's involvement with the company.

This Court further credits Wife's testimony that in addition to the experience he obtained working for C.E.P. he also learned several "bad habits" that were tolerated in her father's company. Wife credibly testified that Husband would often sit in his office watching Fox News on the television, smoking and playing "candy crush" while she was working. (Tr. 9/26/25, pg 782). Wife further credibly testified that Husband's attitude became increasingly worse as their marriage deteriorated. Wife testified that they would frequently argue and that he would scream in the office and use vulgar words in front of the other employees. Wife also credibly testified to one incident of violence that took place in the office in 2017 while Husband still worked for her father. On that date the parties got into an argument and Husband threw a stapler, putting a hole in the wall. While Wife admitted that he was never directly abusive to the other employees, his office demeanor became increasingly "disrespectful" (Tr. 9/26/25, pg. 786). Wife alleged, without specificity, additional incidents of domestic violence in the workplace, and claimed that Husband's behavior caused some clients and salespeople to leave the business (Tr. 10/8/25, pgs. 1036-1038). However, on cross examination, Wife admitted that employees left for several reasons some of which had nothing to do with Husband. Notably, at the time when Husband was Vice President the companies employed eight people. Currently Wife only has one employee, Husband's son. (Tr. 10/8/25, pg. 1041).

As indicted above, this Court finds both parties' testimony credible, in part, with the truth lying somewhere in between their accounts. This Court finds that Husband played an important role in the early years of the company but that his role decreased as the parties' marriage deteriorated. While Husband's work ethic was not up to Wife's standards, she admitted that he opened the office every day and worked as a full-time employee. The Court credits Wife's testimony that the parties frequently argued in the office and that Husband was loud and vulgar. However, Wife admitted that many of these arguments took place in Husband's back office so there "weren't a lot of interactions" (Tr. 9/26/25, pg. 803). This Court does not credit Wife's position that Husband offered no value to the company whatsoever. This claim is belied by Wife's own testimony that she repeatedly begged him to come back to work after the parties separated. This Court finds that Husband intentionally overstated his value to the companies to increase his share of equitable distribution, while Wife intentionally understated his value to limit his equitable distribution.

In addition to Husband's direct contributions to the businesses, the Court must also consider his indirect contributions as a spouse. See Scher v. Scher, 91 AD3d 842 (2d Dept. 2012). Little testimony was offered by either party regarding Husband's indirect contributions, but Wife admitted that some periods of their marriage were good, while other periods were not. While the marital lifestyle described by Husband, including a beautiful house, luxury cars and expensive family vacations suggests that there were several "good years" during their marriage, both parties primarily utilized this trial to demean and belittle one another. Regardless, it is well established that even minimal indirect contributions as a spouse warrant a percentage of the appreciation in value of a business, whether that business constitutes marital property, separate property, or in this case, both. See Price v. Price, 69 NY2d 8 (1986).

In his Summation after Trial Husband requests a distributive award equal to one half of the companies' date of commencement value. Wife's summation requests that that Court grant Husband no distribution whatsoever. After considering the relevant testimony and evidence, and the factors indicated above, this Court finds that Husband's direct and indirect contributions over the course of the parties' seventeen-year marriage, together with the sacrifices that he made in leaving his employment with C.E. Corp. to work for the marital companies entitles him to a distributive award equal to 25% of the date of commencement value of C.E.P.&G. See Repetti v. Repetti, 147 AD3d 1094 (2d Dept. 2017). When determining an equitable percentage this Court has specifically considered the credible allegations of domestic violence in the workplace raised by Wife and has adjusted the percentage accordingly. See DRL § 236 (B)(5)(d)(14); see also Socci v. Socci, 186 AD3d 1289 (2d Dept. 2020). Accordingly, this Court finds that Wife owes Husband a distributive award of $988,067 which represents 25% of the date of commencement value of $3,952,269.

b. Nova Panorama, LLC and Nova Foothills, LLC.

The second business investment made by the parties during the course of their marriage was in a pair of development companies known as Nova Panorama, LLC and Nova Foothills, LLC. collectively referred to as "Nova Built." Nova Built was engaged in the purchase and development of 70 acres of undeveloped land in Arizona. The parties were introduced to this business opportunity through Wife's brother, Joseph R*, who had invested approximately $1.4 million dollars in the development. The parties agreed to invest $640,000 of marital funds into the company. Wife credibly testified that she was initially hesitant to invest but ultimately agreed as Husband believed the investment could be lucrative. The investments were made in Wife's name, but it is undisputed that marital funds were used. Husband testified that at the time they invested the 70 acres were worth approximately $2.4 million dollars, as estimated by a title insurance company.

At trial, Husband offered a purported operating agreement into evidence, but Wife vehemently denied that the signature on the document was hers, so the document was never received. However, Wife did admit that she personally authorized the wiring of $640,000 of marital funds to invest in the development. (Tr. 9/25/25, pg. 630). Wife further admitted to unilaterally signing a document transferring her shares in the company to her brother's father-in-law Mr. Alexander Z. during the course of this proceeding (Pl. Ex. 46). While Wife claims that she told her matrimonial attorney to inform Husband's attorney of her intentions, there is no evidence that any such communication took place. Husband claims that he was unaware of Wife's intentions and would have objected to Wife's unilateral decision to surrender their entire investment. Husband also argues that the transfer was a violation of the "automatic orders" set forth in Domestic Relations Law § 236(B)(2)(b).

Wife testified that she decided to surrender the parties' Nova Built shares because the investments were capital intensive and she was repeatedly being asked to contribute additional funds, which she refused to do (Tr. 10/8/25, pg. 961). Wife admitted that she received nothing in exchange for her surrender (Tr. 9/25/25, pg. 632-633). However, even though she surrendered the parties' entire ownership interest to Mr. Z., Wife testified that she did not see the investment as a "total loss" and was hoping to receive some profits in the future. Wife failed to explain how this could occur as she no longer maintained an ownership interest in the development. However, Husband offered an email exchange between Wife, her brother Joseph R. and her "personal attorney" Chris Cardillo Esq. into evidence which arguably explains Wife's statement (Pl. Ex. 47). Therein, Mr. Cardillo suggests ways that Wife could advise her matrimonial attorney to "deal" with the Nova Built investment. One of the options suggested is to "transfer the shares to Alex Z." because "Alex is willing to guarantee your investment as per a side Call/Put Agreement." Wife admitted that she followed the recommendations of the email to the extent that she directed her matrimonial attorney to call her personal attorney, Mr. Cardillo, to arrange for the surrender (Tr. 9/25/25, pg. 641).

A wasteful dissipation of marital assets occurs when one party unilaterally transfers an asset to a non-party without fair consideration. See Xikis v. Xikis, 43 AD3d 1040 (2d Dept. 2007); see also Kaufman v. Kaufman, 189 AD3d 31 (2d Dept. 2020). This Court finds that Wife wastefully dissipated marital property when she unilaterally transferred the parties entire marital investment in Nova Built to her brother's father-in-law without receiving any consideration in return. See Buchsbaum v. Buchsbaum, 292 AD2d 553 (2d Dept. 2002). Accordingly, Husband is awarded a distributive award in the amount of $320,000 representing one half of the parties' initial Nova Built investment. See Sotnick v. Zavilyansky, 101 AD3d 1102 (2d Dept. 2012); see also V.M. v. N.M., 990 N.Y.S.2d 440 (Sup. Ct. Alb. Cty. 2014)

c. JMJG Enterprise Inc.

The third business investment made by the parties during their marriage was in a holding company known as JMJG Enterprise Inc. ("JMJG") that was formed in August 2018. The ownership structure of JMGJ is not discussed in the trial record although it is undisputed that the holding company constituted "marital property" (Tr. 9/25/25, pg. 642). The parties created this company to offer private loans to businesses. The only asset ever owned by JMJG was a promissory note payable to the company in the amount of $300,000. The debtor on the promissory note was a company known as "Rainer and Lloyd." The parties, through JMJG, loaned $300,000 into Rainer at a 25% interest rate and immediately started collecting returns of approximately $6,250 a month (Tr. 9/23/25, pg. 302).

In or around 2020 Rainer and Lloyd was indicted for tax crimes rendering the loan "uncollectable." As such, JMJG ceased business operations and "wrote off" the loan in 2021. However, the business did not claim the outstanding "bad debt" on its tax returns. When the loan was written off there was a $236,000 balance outstanding.

Husband claims that Rainer and Lloyd was placed into federal receivership after the indictment. Husband argues that once the receiver took control, the company's debtors, including JMJG, were authorized to commence lawsuits to recover their investments. However, Wife neglected to commence a suit or seek recovery through other means. Husband argued that given the amount of Wife's income, she was satisfied with letting the investment fail with the intention of claiming the resulting loss on her personal taxes. Wife unilaterally claimed the loss of $236,500 as a "bad debt" on her 2021 personal income tax return (See Pl Ex. 29). Wife received an unspecified tax benefit of $236,500 from this claimed loss. Husband received no benefit from the investment or its loss. Wife testified that she unilaterally claimed the debt, without consulting Husband, on the advice of her accountant (Tr. 9/25/25, pg. 642).

By Order dated August 28, 2023, Brisbane Consulting Group., LLC was appointed to value the parties' interest in JMJG. Brisbane issued its valuation report on May 10, 2024 (Pl Ex. 8). On September 24, 2025, Mr. Douglas Sosnowski, who prepared the report, testified as a neutral witness in furtherance of his findings. Seemingly at the direction of the parties, Brisbane valued JMJG as of September 30, 2023, a date without stated significance. Mr. Sosnowski found that as of September 2023 JMJG only held two assets, approximately $60,000 in cash, and the "deduction value of the bad debt" (Tr. 9/24/25, pg. 368). Considering these "assets" Mr. Sosnowski concluded that JMJG had a fair market value of $155,560 pursuant to a net asset valuation approach. Mr. Sosnowski opined that it was his understanding that neither party had deducted the loss, but that either party would be entitled to the deduction benefit (Tr. 9/24/25, pg. 370). Mr. Sosnowski was apparently not aware that Wife had already deduced the entire loss on her 2021 tax return as a "bad debt" in the amount of $236,500.

A party seeking the distribution of a marital asset bears the burden of establishing its value. See Nacos v. Nacos, 168 AD3d 413 (1st Dept. 2019). A trial court has broad discretion to accept a date of valuation offered by an expert, so long as that date is between the date of commencement and the date of trial. See DRL 236(B)(4)(b); see also Mesholam v. Mesholam, 11 NY3d 24 (2008). While the valuation date of September 30, 2023, utilized by Brisbane is without explanation, it is within the span of possible valuation dates. Moreover, the parties seemingly directed Brisbane to use this date and neither party objected to its use at trial. Parties are afforded great latitude in how they conduct litigation and are entitled to chart their own course at trial. See Cullen v. Naples, 31 NY2d 818 (1972).

Under these circumstances the Court credits the value offered by Brisbane and finds that JMJG was worth $155,560 as of September 30, 2023. Moreover, this Court finds that the largest component of that value was the ability to deduct the loan as a loss. The Court further credits Husband's testimony that Wife unilaterally decided not to pursue a lawsuit to recover the debt but instead claimed it as uncollectable "bad debt" on her 2021 personal tax returns. Not only did this action foreclose their ability to commence a suit, as the debt was declared "uncollectable" to the Internal Revenue Service, but the resulting tax benefit only inured to the benefit of Wife.

Under these circumstances, this Court finds that Husband is entitled to a distributive award equal to $77,780 payable by Wife. This amount represents one half of the company's value on September 30, 2023. While Husband claims that he should be entitled to one half of the $236,500 claimed by Wife, he has not offered any expert testimony to establish the actual "tax benefit" that Wife received from that deduction, or what benefit Husband would have received if he were able to deduct one half of the bad debt given his financial circumstances at the time. For these reasons, the Court finds Brisbane's conclusion as to value persuasive. See Madonna v. Madonna, 265 AD2d 455 (2d Dept. 1999); see also Mehlenbacher v. Mehlenbacher, 199 AD3d 1304 (4th Dept. 2021).

2. Bank Accounts / Safe Deposit Box

During their marriage the parties maintained several bank accounts, four of which were identified at trial.⁵ The marital bank accounts were maintained at Chase Bank, Investors/Citizen Bank, and Kearney Bank. The bank accounts, although marital, were all titled in Wife's name (Pl. Ex. 32) In addition to bank accounts, Husband credibly testified that the parties kept cash hidden within the house, and in a safe deposit box held at Chase Bank (Tr. 9/23/25, pgs. 204-207).

When the parties separated in January 2020, Husband demanded one half of the contents of the safe deposit box. Husband, Wife, and Wife's brother met at Chase to empty the box. Wife's brother attended because he had approximately $100,000 stored in the box. After Wife's brother retrieved his money, Wife left with the remaining contents of the box including his Husband's mother's jewelry. When Husband demanded his share later that day, Wife directed him to get it from her brother. When Husband met with his brother-in-law, he was handed $30,000 in cash and given his mother's jewelry. At trial, Husband attempted to establish that the amount he was given was $15,000 short, claiming that $90,000 of marital funds was stored in the box. Wife contested this amount and claimed that only $60,000 was secured in the box. As neither party offered any documentary evidence to establish the contents of the Chase safe deposit box, Husband's request for a $15,000 distributive award is denied due to a failure of proof. See Massimi v. Massimi, 35 AD3d 400 (2d Dept. 2006).

A party seeking the equitable distribution of a bank account has the burden of establishing the account's value. See Rudish v. Rudish, 150 AD3d 1291 (2d Dept. 2017). Bank accounts are typically valued as of the date of commencement if they are utilized during the proceeding. See Rywak v. Rywak, 100 AD2d 542 (2d Dept. 1984); see also Graziano v. Graziano, 285 AD2d 488 (2d Dept. 2001). If left untouched, the valuation date of a "passive" bank account would typically be the date of trial to capture any increase in value due to market forces. See Halley v. Craven, 236 AD3d 512 (1st Dept. 2025). Here, Wife admitted that she was in control of the marital bank accounts (Tr. 10/8/25, pg. 1035). Wife further admitted that she liquidated those bank accounts starting in March 2023 throughout the course of this litigation (Tr. 9/6/25, pg. 736). Accordingly, as the accounts were not preserved, a date of commencement value is appropriate. See Iacono v. Iacono, 145 AD3d 972 (2d Dept. 2016); see also Michaelessi v. Michaelessi, 59 AD3d 688 (2d Dept. 2009); Ruane v. Ruane, 55 AD3d 586 (2d Dept. 2008).

On September 26, 2025, both parties reported to this Court that they had settled the issue of the distribution of marital bank accounts, with each party receiving credit for one half of the date of commencement value. The parties stipulated on the record that the commencement date value of the marital bank accounts held at Chase, Investors/Citizen and Kearney Bank totaled $284,482 (Tr. 9/26/25, pg. 686). However, when Wife realized that the settlement would require her to pay Husband one half of the funds that she dissipated, she refused to sign the stipulation drafted by Husband's counsel (Tr. 9/26/25, pg. 739).

Although Wife recanted her settlement based upon payment terms, she admitted on the record that the date of commencement value of the accounts was $284,482. Wife's agreement on the record as to the value of the accounts constitutes a binding judicial admission. See GJF Constr., Inc. v. Sirius Am. Ins. Co., 89 AD3d 622 (1st Dept. 2011); cf. Pezza v. Pezza, 233 N.Y.L.J. 21 (Sup. Ct. Nass. Cty. 2005). In any event, Husband produced documentary evidence supporting the amount stipulated to on the record (Pl Exs. 9,10,32). Considering the equitable distribution factors above, this Court finds that Husband is entitled to 50% of the date of commencement value of these bank accounts which were unilaterally liquidated by Wife. See Habib v. Habib, 227 AD3d 874 (2d Dept. 2024). Accordingly, Husband is hereby granted a distributive award in the amount of $142,241.

3. Retirement Accounts / Life Insurance

Two retirement accounts were identified as potential marital assets at trial. As a benefit of their employment with C.E.P.&G., 401(k) retirement accounts were established for Wife and Husband. Both accounts were opened during the marriage and are presumed to be marital property. Once property is classified as marital, the trial court has broad discretion to select an appropriate date for measuring value. See Halley v. Craven, 236 AD3d 512 (1st Dept. 2025). However, the valuation date must be between the date of commencement and the date of trial. See Parkoff v. Parkoff, 195 AD3d 936 (2d Dept. 2021).

Although the date of commencement of the present divorce action was in July 2020, the account statements offered into evidence by both parties at trial were from March 2020 (See Pl. Ex. 11; Def. Exs. AAC, AAD). While no explanation for the March statements was offered, March 2020 correlates to the commencement of the first and second actions for divorce between the parties, both of which were abandoned, and subsequently consolidated and dismissed by this Court. Under these circumstances, and in the absence of any other account statements, the March statements provided are the best evidence available to establish the approximate date of commencement value of these marital accounts. By jointly relying upon statements from March 2020, this Court finds that the parties, in essence, stipulated to a valuation date that would have would have otherwise been inappropriate. See Mesholam v. Mesholam, 11 NY3d 24 (2008). Parties are entitled to chart the course of their own litigation and may stipulate themselves out of the legislative system of marital property. See Savignano v. Savignano, 194 AD3d 769 (2d Dept. 2021).

The Court finds that the approximate date of commencement value offered by both parties is appropriate under the circumstances of this case where the accounts have been borrowed against or liquidated during the pendency of this action for purposes other than paying down marital debt. See DiFiore v. DiFiore, 87 AD3d 971 (2d Dept. 2011); see also Williams v. Williams, 99 AD3d 1094 (3rd Dept. 2012). There is also evidence in the record to suggest that contributions have been made to Wife's 401(k) post commencement which would further support the use of a date of commencement value.

At commencement, both accounts were maintained by "John Hancock" although they were later transferred by Wife to "Empower" (Tr. 9/22/25, pg. 65). Wife's 401K had a date of commencement balance of $204,000 (Def. Ex. AAAC). Husband's account had a date of commencement balance of $116,757 (Def. Ex. AAAD). While Husband testified that he was aware that Wife possessed a second retirement account with "Alliance," no evidence of a second retirement account was offered at trial. The difference between Wife's 401(k) and Husband's 401(k) on the date of commencement was $87,243. This Court finds that a 50% distribution is appropriate after considering the factors above. Accordingly, Wife owes Husband a distributive award of $43,622, representing one-half of the difference between the accounts.

In addition to their respective retirement accounts, the parties also maintained life insurance policies that had a cash surrender component. It is undisputed that these policies were created during the marriage and thus constitute marital property. The cash surrender value of a life insurance policy is a marital asset that is subject to equitable distribution. See Miller v. Miller, 150 AD2d 652 (2d Dept. 1989). However, as monthly premiums were paid by Wife using post-commencement funds, the current surrender value has a separate property component. See LaBarre v. LaBarre, 251 AD2d 1008 (4th Dept. 1998); see also N.F. v. O.F., 208 N.Y.S.3d 921 (Sup. Ct. West. Cty. 2024). This comingling issue can be avoided by utilizing a date of commencement value. See Khol v. Khol, 800 N.Y.S.2d 348 (Sup. Ct. NY Cty. 2004); see also E.G. v. D.G., 43 N.Y.S.3d 766 (Sup. Ct. West. Cty. 2014).

The parties' policies were maintained by MetLife Insurance Company and Mass Mutual Insurance Company. On the date of commencement, Wife had two whole life policies with MetLife (Pl. Ex. 12). The first policy (account #1584) had a date of commencement cash surrender value of $51,639. Wife's second policy (account #4940) had a cash surrender value of $14,654. Wife also had two policies with Mass Mutual (Pl. Ex. 13). The first policy (account #2808) had a cash surrender value of $23,045. The second policy (account #3563) had a cash surrender value of $34,467. Wife's accounts have a total date of commencement value of $123,805.

Husband also had a policy with MetLife Insurance Company. At trial, Wife established that Husband liquidated his policy in April 2020 shortly before the commencement of the present action. Husband testified that he liquidated the policy shortly after his employment was terminated by Wife because he had no other source of income. Regardless of his motive, Husband's liquidation took place after he was aware of the automatic orders set forth in DRL § 236(B)(2) and 22 NYCRR § 202.16(a). Those orders became effective after both he and Wife filed for divorce in March 2020. While those divorce actions were abandoned in favor of the present action and ultimately consolidated and dismissed by this Court, the automatic orders were in effect at the time of liquidation. Accordingly, Husband did not have the right to liquidate the accounts. Under the unique circumstances of this case, this Court finds that the cash surrender value of Husband's policy remains subject to equitable distribution. Wife has established that the value of Husband's policy at the time that he surrendered it was $32,708 (Def. Ex. M).

The total value of Wife's policies on the date of commencement was $123,805. The difference between Wife's policies and Husband's policy is $91,097. This Court finds that a 50% distribution is appropriate after considering the factors above. Accordingly, Wife owes Husband a distributive award equal to one-half of the difference between the accounts, in the amount of $45,549.

4. Real Property - 15 C* Avenue

On or about June 23, 2003, during their marriage, the parties jointly purchased a parcel of real property located at 15 C* Avenue in Staten Island, New York. While the contract of sale was entered into before the date of marriage, on or about April 29, 2003, both Husband and Wife entered into the contract as joint purchasers (Def. Ex. AY). This property served as the parties' marital home until Husband relocated from the residence in January 2020. As of the time of trial, the property was inhabited by Wife and the parties' minor daughter G.G..

It is undisputed that this property is marital in nature and is therefore subject to equitable distribution. During the pendency of this action, the parties engaged Century 21 Zaloom as a neutral evaluator to value the property. By Order dated March 31, 2025, the parties agreed to update that appraisal and share the cost of the same equally. At trial, neither party elected to call the real estate appraiser to establish the value of the marital home. Rather, the parties stipulated to the admission of the real estate appraiser's report into evidence (See Pl. Ex. 43; Tr. 9/25/25, pg. 612). According to the report the "date of trial" market value of 15 C* Avenue was $1,420,000. The outstanding primary mortgage balance as of the date of trial is approximately $110,758 resulting in an approximately $1,309,242 in marital equity. However, before distributing this equity, this Court must address Wife's various claims for credits and for the distribution of the Home Equity Line of Credit and primary mortgage encumbering the property.

(4)(a). Separate Property Contribution Credit

Wife alleges that she is entitled to a $130,000 separate property contribution credit in relation to the purchase of 15 C* Avenue. Wife claims that at or around the time of closing she issued a pair of checks in the amount of $65,000 (each) towards the $650,000 purchase price of the property. Wife claims that she utilized pre-marital funds to make the downpayment. In support of her claim she has offered a pair of checks into evidence, a $65,000 check (#0534) issued from her Chase account on April 22, 2003, and a second $65,000 certified check (#2801) issued on June 23, 2003 (Def. Ex. AZ). While the second check bears Wife's married surname, it was only issued two days after the date of marriage on June 21, 2003. Wife credibly testified that at that point she had no shared accounts with Husband and had not co-mingled her funds with his (Tr. 10/7/25, pg. 880).

A party seeking a separate property contribution credit has the burden of "tracing" the source of the funds with "sufficient particularity." See Masella v. Masella, 67 AD3d 749 (2d Dept. 2009). A party making a contribution claim cannot meet their burden of proof through testimony alone. See Ferrante v. Ferrante, 186 AD3d 566 (2d Dept. 2020). Tracing requires the submission of documentary evidence. See Marshall v. Marshall, 91 AD3d 610 (2d Dept. 2012). Here, Wife has established, through credible testimony and documentary evidence, that she contributed her separate property funds into the purchase of 15 C* Avenue. Accordingly, she is entitled to a credit of $130,000 "off the top" when the property is distributed. See Vilca v. Kim, 246 AD3d 1139 (2d Dept. 2026); see also Wen Wen Sun v. Ti Zhou, 243 AD3d 735 (2d Dept. 2025).

(4)(b). Post Commencement Contributions to the Mortgage

In addition to a separate property credit for her contributions to the downpayment for the purchase of 15 C* Avenue, Wife also seeks credit for the post commencement payment of the mortgage. In support of her claim, Wife has established that that the original mortgage was approximately $257,970 at or around the time of commencement, and that it was reduced to approximately $110,759 as of November 1, 2025 (Def. Ex. AAA). Wife argues that she is entitled to a credit for this reduction in mortgage principal because she made all the post commencement payments using "her earnings without contribution from Husband" (Tr. 10/7/26, pg. 882). In her Summation, Wife seeks a credit of $73,606 representing one half of the $147,211 reduction in principal balance.

Generally, it is the responsibility of both parties to maintain the marital residence during the pendency of a matrimonial action. See Judge v. Judge, 48 AD3d 424 (2d Dept. 2008). Therefore, if it is established that one party paid the other party's share, without contribution, they are entitled to reimbursement. See Strohli v. Strohli, 174 AD3d 938 (2d Dept. 2019). The party making payment is generally entitled to a credit equal to 50% of the reduction in mortgage principal, as they remain responsible for paying the other half. See Le v. Le, 82 AD3d 845 (2d Dept. 2011). However, a credit for the post commencement paydown of the mortgage may not be warranted where the paying party is receiving child support pursuant to the CSSA guidelines. It is well settled law that "shelter costs" are a primary component of child support. See Torkin v. Susac, 236 AD3d 1082 (2d Dept. 2025). Accordingly, paying child support is, in effect, contribution toward the reduction in mortgage. See Boyajian v. Boyajian, 194 Misc 2d 756 (Sup. Ct. Nass. Cty. 2003).

By Pendente Lite Order dated April 5, 2021 (Panepinto, J.) Husband was directed to pay $1,587 a month in temporary child support to Wife during the pendency of this action pursuant to the CSSA guidelines. Wife was simultaneously obligated to pay the sum of $4,163 a month to Husband as temporary maintenance. To avoid cross payments, the Order directed Wife to deduct the amount of child support owed from her monthly maintenance obligation. This Order was subsequently modified by Pendente Lite Order dated January 6, 2023, which decreased Husband's monthly child support obligation to $679 a month after a consideration of the income disparity between the parties. The January 6th Order simultaneously increased Wife's pendente lite maintenance obligation to $14,724 per month. The Order maintained that Wife should deduct child support from her payments resulting in an adjusted monthly award to Husband of $14,724. While Wife's payment of support to Husband has been inconsistent at best, Wife has always been able to retain the amount of child support owed by Husband. Accordingly, Husband has always remained in compliance with his pendente lite child support obligations pursuant to the CSSA guidelines. Under these circumstances, awarding Wife a credit for 50% of her payments towards carrying costs would result in Husband making double shelter payments. See Iacono v. Iacono, 145 AD3d 972 (2d Dept. 2016); see also Davidman v. Davidman, 97 AD3d 627 (2d Dept. 2012); Mosso v. Mosso, 84 AD3d 757 (2d Dept. 2011). For the above reasons, Wife's application for a principal paydown credit is denied.

(4)(c) Home Equity Line of Credit

During the course of their marriage the parties opened a Home Equity Line of Credit ("HELOC") with Bank of America with a $300,000 credit limit. This HELOC allowed either party to withdraw equity from the marital home. At or around the time of commencement the HELOC had a balance of approximately $25,000. It is undisputed that between April 19, 2021, and June 14, 2021, Husband withdrew the sum of $250,000 from the HELOC in violation of the automatic orders set forth in 22 NYCRR § 202.16(a) and DRL § 236(B)(2). Husband admittedly withdrew these funds for his own use without informing Wife or obtaining her consent.

While admitting that he violated the automatic orders, Husband credibly testified that he withdrew the funds because he found himself in a dire financial situation. Wife fired Husband from his position as Executive Vice President of C.E.P.&G rendering him unemployed. Wife admittedly became inconsistent with her court ordered maintenance payments rendering him unable to pay his rent. At or around the same time, two of Husband's friends reached out to see if he wanted to join them in a new business venture in Boca Raton, Florida. Husband explained that he used the funds withdrawn from the HELOC to pay off several debts, relocate to Florida, and to purchase a one third ownership interest in JCD Boca Corporation, doing business as "Cosmos" nightclub.

Wife credibly testified that she was shocked when she discovered the significantly increased balance and immediately brought it to the attention of the Court (See Motion Sequence Number 006). By Order dated July 19, 2021 (Panepinto, J.), it was determined that Husband would be responsible for the monthly HELOC payments pendente lite. However, as Husband was without means of payment at that time, the July 19th Order directed Wife to make the HELOC payments "on [Husband's] behalf" by deducting the funds from her monthly maintenance obligation. While Wife's payment of maintenance to Husband has been inconsistent during the pendency of this action, she credibly testified that she has made every payment towards the HELOC. However, despite consistent monthly payments for over four years, the balance of the account was $256,749 as of October 3, 2025 (Def. Ex. AAB).

In her summation, Wife requests that she be awarded a credit in the amount of $250,000 representing Husband's unauthorized withdrawal. By withdrawing the funds after the commencement of this action, for his own purposes, Husband, in effect, created a separate property debt that became his responsibility to repay. See Prince v. Prince, 247 AD2d 457 (2d Dept. 1998). "Expenses incurred after the commencement of a matrimonial action are the responsibility of the party who incurred them." Nerayoff v. Rokhasr, 168 AD3d 1071 (2d Dept. 2019). Accordingly, $250,000 of the HELOC shall be satisfied from the proceeds of the sale of the marital home, deducted from Husband's equitable share at closing, or credited to Wife in connection with her "buy out" right as set forth below.

(4)(d) Additional Requests for Credits

In addition to the credits indicated above, Wife's Statement of Proposed Disposition and Summation after Trial raise several other credits that she claims to be entitled to. These credits include alleged repairs following a flood in 2021 and claims for contribution to the various expenses incurred during Wife's exclusive use and occupancy of the property. After considering these claims, the Court finds that that they are unsupported by admissible documentary evidence and/or are unsupportable by law (Tr. 10/7/25, pgs. 888-890). Accordingly, the credits awarded to Wife shall be limited to those delineated above.

(4)(e) Distribution

When a marriage is of significant duration, and both parties contribute, the distribution of property should generally be as equal as possible after considering the facts and circumstances of the case. See Silvers v. Silvers, 197 AD3d 1195 (2d Dept. 2021). This Court finds that both parties contributed to the acquisition, maintenance and upkeep of 15 C* Avenue during the marriage. Subject to the credits discussed above, neither party has established why they would be entitled to more than a 50% share of this marital asset. Accordingly, after consideration of the factors above, and the similar positions of both parties, the Court finds that each party shall be entitled to 50% of the equity in the former marital home. See Matter of Motta v. Motta, 145 AD3d 560 (1st Dept. 2016); see also Alleva v. Alleva, 112 AD3d 567 (2d Dept. 2013).

Husband requests that the property be sold so that he may recoup his equity and satisfy any distributive awards granted to him. However, Wife has requested the right to "buy out" Husband's 50% share of equity in the home, as she currently occupies the home with the parties' minor daughter. See Rubackin v. Rubackin, 107 AD3d 872 (2d Dept. 2013). After considering the totality of the circumstances, including the equitable distribution factors set forth above, and particularly the presence of a minor child, this Court finds that Wife should be granted the opportunity to "buy out" Husband's share of the equity in the marital home. Accordingly, Wife shall have a period of thirty days following the date of this Decision to advise, in writing, whether she intends to purchase Husband's 50% equity in the home with proof of funds. If Wife sends timely notice of her intention to utilize her "buy out" right, she shall have an additional sixty days from the date of the Notice to pay Husband the value of his equitable share of the property. Husband's 50% share shall be calculated as follows:

The value of the home established at trial is $1,420,000. Wife is entitled to a $130,000 credit for her downpayment "off the top" before the equity is divided. This results in an adjusted value of $1,290,000. This remaining equity is divided evenly between the parties in the amount of $645,000 each. The primary mortgage encumbering the house in the amount of $110,758 is divided evenly between the parties, a deduction of $55,379 each. The HELOC must be separated into two sections, Husband is obligated to satisfy $250,000 of the HELOC out of his share of the equity. The remaining $6,749 balance is marital and is divided equally between the parties resulting in a deduction of $3,375 each. These calculations result in an equity distribution to Wife of $716,246 and a distribution to Husband of $336,246. Accordingly, to buy out Husband's equity in the marital home, Wife owes Husband the sum of $336,246. As this buy out contemplates the satisfaction of at least Husband's share of all encumbrances on the property, Wife can elect to either assume the HELOC and the primary mortgage through refinancing and remove Husband's name from the same or she can satisfy the encumbrances by paying the amounts owed to remove Husband's name from the same. Once Husband is paid, and his name is removed from all encumbrances, title of the property shall be deeded to Wife.

If Wife elects not to purchase Husband's interest or fails to provide timely notice to Husband with proof of funds, then 15 C* Avenue will be immediately placed on the open market for sale at its present-day market value. To determine its present-day value, Wife shall forward the name of three licensed real estate brokers located on Staten Island to Husband's attorney and Husband shall have the right to select one name from the list. The selected broker shall list the property at its current market value taking into consideration the appraisal offered into evidence at trial but not being bound by its findings. Wife shall make the property available for showing and both parties are directed to comply with any reasonable requests of the broker. Once the house is sold, the proceeds shall be distributed equally (50% each) between the parties with Wife having the right to the credits set forth herein and the payment of the current balance of the HELOC being paid from Husband's share of the proceeds.

5. Personalty/ Motor Vehicles

Husband moved out of the marital home in or around January 2020. Husband credibly testified that when he left the home he left behind almost all of his personal property. Husband testified that some of the items that he left behind were valuable, such as sports memorabilia, and some of the items were of only sentimental value, such as pictures of his family. Wife testified that she was aware of his property being in the basement, and when the basement flooded in or around 2021, she moved his property to a "POD" in the driveway and she put valuable items on a shelf in the garage (Tr. 10/8/25, pg. 989). Wife claims that approximately two and a half years after he left the home he returned to clean out the POD, threw ninety percent of the contents away, and left the items he wanted in the garage. The trial record is unclear as to what happened to the items in the garage, but Husband claims that they are still there. At the close of the trial record the parties entered into a Short Form Order dated October 17, 2025, which resolved the issue of Personalty. By the terms of this Order counsel were to confer upon a list of items to be exchanged, and Husband was authorized to return to the former marital home on a date to be agreed upon to retrieve his belongings.

While Husband identifies marital motor vehicles as an asset subject to equitable distribution, and seeks a distributive award of $19,750, the Court is unable to make an equitable distribution award due to a failure of proof. A party seeking the distribution of a marital asset has the burden of both establishing the existence of the asset on the date of commencement and its value. See Fu Kuo Hsu v. Hsuan Huang, 149 AD2d 405 (2d Dept. 1989); see also Massimi v. Massimi, 35 AD3d 400 (2d Dept. 2006). Here, Husband has failed on both accounts. Accordingly, this Court cannot acknowledge the existence of marital vehicles or attribute any value to them. See Repetti v. Repetti, 147 AD3d 1094 (2d Dept. 2017).

6. Miscellaneous Assets

This Court has undertaken a thorough review of the parties' pre and post-trial submissions, the documentary evidence offered at trial and the trial record to make the distribution of the parties' property as complete and equitable as possible. However, the trial record admittedly makes passing references to other equitable distribution claims that are not specifically addressed herein. The Court finds that any claim for equitable distribution not specifically addressed herein is hereby denied due to a failure of proof. When determining equitable distribution, it is the burden of a party who seeks the distribution of an asset to specifically identify that asset and provide evidence as to its value. See Nacos v. Nacos, 168 AD3d 413 (1st Dept. 2019). The Court finds that after an exhaustive review, all other equitable distribution claims raised by the parties are hereby denied due to a failure to meet their respective burdens of proof. See Hand v. Hand, 196 AD3d 469 (2d Dept. 2021); see also Antonian v. Antonian, 215 AD2d 421 (2d Dept. 1995); Post v. Post, 68 AD3d 741 (2d Dept. 2009).

7. Marital Debt

Marital debts accumulated during a marriage are subject to equitable distribution. See Barra v. Barra, 191 AD3d 831 (2d Dept. 2021). The relevant time period for equitable distribution ends when the marital partnership ceases at the commencement of a divorce action. See Heyman v. Heyman, 102 AD3d 832 (2d Dept. 2013). Expenses incurred prior to the commencement of an action for divorce are marital debt to be shared by the parties upon an offer of proof that they represent marital expenses. See Bari v. Bari, 200 AD3d 835 (2d Dept. 2021). Expenses incurred after the commencement of a divorce action are the responsibility of the party who incurred them. See Prince v. Prince, 247 AD2d 457 (2d Dept. 1998.)

The only marital debt identified with any particularity at trial was the Home Equity Line of Credit associated with the marital home. As set forth above, Husband shall be held 100% responsible for the repayment of $250,000 of this debt upon the sale of the marital home. If Wife elects to utilize her "buy out" option, then the calculations herein include a credit for Husband's repayment obligation. If Wife elects to utilize her buy out option, she shall assume the full balance of the HELOC and take all necessary steps to remove Husband's name from the same.

Maintenance

Husband's Summation requests an award of maintenance in the amount of $14,044 per month, or $168,528 per year, for a term of 72 months. While Husband does not indicate the income figures that he utilized to determine this amount, nor does he include the required support calculations, the amount of support sought is identical to that awarded in the second Pendente Lite Order dated January 6, 2023 (Marrone, J.) Since the amount of support is identical, it is reasonable to assume that Husband utilized the incomes and calculations set forth in that Order. The January 6th Order attributes a capped income of $614,377 to Wife, and an income of $38,141 to Husband. The incomes utilized in the January 6th Order appear to have been derived from the 2021 tax year. Husband's maintenance claim was first raised in his Summons with Notice dated July 23, 2020. As such, any award herein will be retroactive to that date. See Crane v. Crane, 264 AD2d 749 (2d Dept. 1999); see also Hendry v. Pierik, 78 AD3d 784 (2d Dept. 2010).

Despite the clear discrepancy in the parties' respective incomes, Wife's Summation concludes that the Husband should be awarded "greatly reduced" maintenance, or that it should be terminated altogether. It is unclear what income Wife attributes to Husband, but she claims that an imputed income is warranted. It is also unclear what income Wife attributes to herself, but she claims that the Court should only consider her "net income" after all taxes and household expenses are paid. Wife argues that if this Court were to utilize her "cash available to pay support" in its calculations, Husband would not be entitled to a maintenance award. Wife's argument exhibits a misunderstanding of how income for support purposes is calculated pursuant to Domestic Relations Law § 236(B)(5-a). Without clearly indicating what incomes she utilized and without showing her calculations, Wife concludes that at best Husband would be entitled to a retroactive award of $5,138 a month. Wife claims that when her proposed award is applied retroactively, it will result in a finding that she overpaid support. Wife requests an overpayment credit of $359,212.

As this action was filed in July 2020, the statutory revisions  ⁶ to the determination of post-divorce maintenance apply. In essence, the statutory revisions apply the well-established "temporary maintenance" guidelines to any claim for post-divorce maintenance. Thus, the determination of maintenance, at least in the first instance, has been simplified to a mathematical calculation. See DRL § 236(B)(6). The result of this calculation is the presumptively correct award of maintenance that "shall" be paid to the less monied spouse unless the court finds the amount to be "unjust or inappropriate." See Mahoney v. Mahoney, 197 AD3d 638 (2d Dept. 2021); see also Hughes v. Hughes, 198 AD3d 1170 (3rd Dept. 2021). If the Court wishes to deviate from the guidelines, it is directed to consider "one or more" of the fifteen enumerated factors set forth in DRL § 236(B)(6)(e)(a-o) and explain its reasoning. See Caputo v. Caputo, 152 AD3d 643 (2d Dept. 2017). A consideration of these factors is also relevant to determine whether support should be awarded utilizing income in excess of the statutory cap. The statutory cap is presently $241,000.

The first step in determining the presumptive maintenance award is to determine each spouse's income, up to the statutory income cap. See Holterman v. Holterman, 3 NY3d 1 (2004); see also Lesser v. Lesser, 203 AD3d 466 (1st Dept. 2022); JTP v. SJ, 163 N.Y.S.3d 793 (Sup. Ct. NY. Cty. 2022). In determining income for the purpose of calculating maintenance, the statute uses the same definition of income as set forth in the Child Support Standards Act. See DRL § 236B [5-a][b][4]. The Court is directed to utilize income figures as they were, or should have been, reported on the parties most recently filed tax returns. See DRL§ 240(1-b)(b)(5)(i); see also Toscano v. Toscano, 153 AD3d 1140 (2d Dept. 2017); Miller v. Miller, 18 AD3d 629 (2d Dept. 2005). However, the Court is not bound by the parties' representation of their finances and has the authority to impute income where such a finding is supported by the record. See Cazar v. Browder, 191 AD3d 837 (2d Dept. 2021).

(a) Husband's Income

As discussed at length above, Husband was initially employed by Wife's father, Vincent R., as a manager of C.E. Corp. He was subsequently employed by the marital businesses' C.E.P.&G as Executive Vice President. When Husband was discharged from his employment by Wife following the breakdown of the parties marriage, he was earning approximately $135,000 a year (Pl Ex. 14). Wife terminated Husband's employment in or around January 2020 rending him unemployed. At or around the same time, Wife also requested that Husband leave the marital home and remove his name from the joint bank account, which he did voluntarily. Wife also allowed his car insurance to lapse, his EZ-Pass to be revoked, and his cell phone to be turned off. While Wife denies responsibility for any of these occurrences her testimony was not credible.

When Husband was terminated, he found himself without means to support himself for several months. While Wife credibly testified that Husband remained on the company payroll until March 2020, Husband credibly testified that his pay was deposited into the bank account that his name was removed from. As a result, Husband received a W2 in 2020 for approximately $15,000 that never actually received (Tr. 10/17/25, pg. 1168). Husband claims that Wife used the $15,000 for her own purposes. Following his termination, Husband supported himself by borrowing money from friends and family until August 2020 when he began receiving unemployment insurance. Notably, unemployment insurance is generally unavailable when a claimant leaves their employment voluntarily, as Wife claims he did. See Matter of Gilgoff (Commissioner of Labor) 247 AD3d 1450 (3rd Dept. 2026). During his unemployment, Husband was forced to borrow approximately $61,000 from friends and family and to surrender his life insurance policy for $32,000 to keep himself afloat (Tr. 9/23/25, p. 197).

After the commencement of this action in July 2020, Husband's financial situation did not significantly improve. By Order dated April 5, 2021, Husband was granted temporary maintenance in the amount of $4,163 a month, less his payment of child support of $1,587 a month, resulting in a net award of $2,557. Husband testified that this amount was insufficient to satisfy his financial obligations, including the debts that he incurred while unemployed, so he began looking for substitute employment. At or around the same time Husband was approached by his friends "Donald Dover" and "Cosmo Catanzano" about an investment opportunity in Boca Raton Florida. Dover and Catanzano were interested in opening a nightclub, and Husband agreed to "buy into" the project. Husband admits that between April and June 2021, in violation of the Automatic Orders, he withdrew $250,000 from the marital Home Equity Line of Credit. Husband credibly testified that he primarily used the HELOC funds to satisfy his personal debts, to relocate to Florida, and to purchase a one third ownership interest JCD Boca Corp. doing business as "Cosmos." JCD Boca Corp. was formed in April or May of 2021 and Cosmos opened its doors for business in or around October 2021.

Huband and his partners all retained their one third interest in JDC Boca until April 2022 when the company was forced to temporarily remove Donald Dover as an owner. Husband credibly testified that the Bureau of Alcohol and Tobacco raised concerns about the club's liquor license after discovering that Mr. Dover had a criminal history including a felony charge. Husband credibly testified that during the year that it took to "straighten the situation out" the other owners absorbed Mr. Dover's ownership interest. As a result, Husband was listed as a 50% owner of the company from around April 2022 until January 2023 when the ownership interest was returned to Mr. Dover (Tr. 9/23/25, pgs 192-194). Husband credibly testified that his income never changed during this time, as the business continued to pay Mr. Dover as if he was an equal owner.

The subject of Husband's income as an owner of JCD Boca Corp. was a point of contention between the parties. Wife alleged that the nightclub generates unreported cash income that is distributed between the partners in addition to their salaries and distributions. Husband did not testify as to whether he receives any cash income from his business. At the start of trial Wife indicated that she had evidence, including surveillance conducted by private investigators to prove that Husband's income was inaccurate, but no such evidence was offered at trial.

The only meaningful examination of unreported cash income came from the Court's neutral evaluator, Brisbane Consulting Group, who was appointed to value JCD Boca Corp. Notably, neither party to this action has claimed that JCD Boca Corp. constitutes a marital asset, as it was formed after the date of commencement. See Nerayoff v. Rokhsar, 168 AD3d 1071 (2d Dept. 2019). As part of its evaluation, Brisbane found evidence that the "cover charge" to enter the nightclub was not recorded by the company's point of sale ("POS") system. However, it was noted that the corporate tax returns did account for cash receipts not recorded in the POS system (Pl. Ex. 25, pg. 12). The Brisbane report does not offer an opinion on whether JCD Boca Corp. collects unreported cash revenue. In conclusion, Brisbane opines that as the shareholders' incomes are below industry benchmarks it is possible that they may be receiving unreported cash. Considering this possibility, Brisbane offers two potential values for Husband's share of the company as of September 2023, $144,000 if there is no unreported cash or $233,000 if there is unreported cash. However, as the value of JCD Boca is not subject to equitable distribution, this analysis is of little relevance to the issues in this proceeding. Absent from the Brisbane report is any forensic analysis of Husband's income, such as a "lifestyle analysis" or a "cash flow analysis" See e.g. Zito v. Zito, 43 Misc 3d 1236(A) (Sup. Ct. Kings. Cty. 2014); Warshaw v. Warshaw, 120 N.Y.S.3d 585 (Sup. Ct. NY Cty. 2020). Notably, the Order of Appointment dated August 23, 2023, did not direct Brisbane to perform an analysis addressing the accuracy of Husband's income.

A party seeking to have income imputed to another generally bears the burden of proof to establish that the party against whom imputation is sought is underemployed or is otherwise responsible for reporting less income than his or her income potential. See Harlan v. Harlan, 998 N.Y.S.2d 769 (Sup. Ct. Mon. Cty. 2014); see also Kessler v. Kessler, 2006 NY Misc. LEXIS 4041 (Sup. Ct. West. Cty. 2006). Here, Wife failed to offer any evidence other than her speculative testimony in support of her argument that income should be imputed to Husband. See Murphy v. Murphy, 166 AD3d 987 (2d Dept. 2018); See also Matter of Quashie v. Wint, 148 AD3d 905 (2d Dept. 2017). Wife further fails to suggest a specific amount of income to be imputed, and support for that amount. Wife admitted during cross examination that she does not know how much Husband earns in a year (Tr. 9/24/25, pg. 469).

As there is insufficient support in the record for imputation, the Court is directed to utilize the income figures that were reported on Husband's most recently filed tax return. See DRL§ 240(1-b)(b)(5)(i); see also Miller v. Miller, 18 AD3d 629 (2d Dept. 2005). The most recent tax return offered at trial was Husband's return from 2024 (Pl. Ex. 2). According to this document, Husband earned the gross sum of $139,360. Of this amount $36,400 is attributed to a W2 issued by his employer and $119,520 is seemingly attributed to "pensions and annuities." When asked to explain his return, Husband testified that he did not know what the $119,520 represented, although the return references the issuance of a tax form 1099. Regardless, Husband properly authenticated the document as a copy of the return that he filed with the IRS and stated that it was not altered in any way (Tr. 9/22/25, pgs. 13-16). Accordingly, this Court finds that it is an accurate representation of his income that should be utilized for the maintenance calculations herein. "A party to litigation may not take a position contrary to a position takin in an income tax return." See Mahoney-Buntzman v. Buntzman, 12 NY3d 415 (2009); see also Shyer v. Shyer, 187 AD3d 674 (1st Dept. 2020).

From this gross amount of $119,520 the Court is authorized to subtract statutory tax deductions that were "actually paid." See Kaufman v. Kaufman, 102 AD3d 925 (2d Dept. 2013). Typically, this information is gleaned from a party's W2 or indicated as "self-employment tax" on a 1099, however Husband's tax return fails to annex either of these documents. Husband further failed to offer either tax form into evidence as a separate document. Finally, the "tax deduction" section of his 2025 Statement of Net Worth has been left blank (Pl. Ex. 22). As this Court is unable to determine the amount of statutory taxes that he "actually paid," Husband has failed to establish that he is entitled to deductions. Accordingly, this Court is constrained to use Husband's entire income for its maintenance calculations.

(b) Wife's Income

The determination of Wife's income is less complicated. When the parties met, Wife was working in the New York Mercantile Exchange. However, for most of their marriage Wife has maintained the same position as President of the marital businesses' C.E.G. LLC and C.E.P. LLC. In this capacity Wife has always been the driving force behind the success of these lucrative Energy Service Companies and the primary wage earner between the parties. Wife credibly testified at length as to the nature of these companies, their operation, and the regulatory challenges that they face. Wife has established that the ESCO market is not only competitive, but also high risk. Despite these challenges, Wife has successfully maintained the profitability of the companies such that they routinely generate millions of dollars of annual revenue.

As President of the companies, Wife is in control of her own compensation. However, Wife claimed that she has never personally reviewed her tax returns and just signs off on whatever her accountant prepares. Her account, David B. CPA, testified as a fact witness at trial. Mr. B. explained the nature of Wife's income indicating that it includes her salaries, "member guaranteed payments" and the net profits from the businesses as indicated on a tax form K1 (Tr. 9/25/25, pg. 559). Several of Wife's tax returns were admitted into evidence. These documents corroborate Wife's claim that her income fluctuates in relation to the success of the businesses in any given year. According to the tax returns she filed with the IRS, Wife reported gross income of $917,586 in 2020, $1,115,271 in 2021, $354,114 in 2022, $1,111,011 in 2023 and $809,396 in 2024. Pursuant to the statutory guidelines, this Court is directed to use the most recent figure of $808,396(Pl. Ex. 36). Wife has requested that this Court consider deducting her entire tax burden, including her Federal and State Taxes. However, the only permitted tax deductions are set forth in Domestic Relations Law § 240(1-b)(b)(5)(vii). The first deductible tax is Wife's New York City resident tax, of which she paid $26,327. The next deductible tax is FICA (Social Security and Medicare), however as Wife is self-employed this tax appears as "self-employment tax" on her return. See Frankel v. Frankel, 287 AD2d 686 (2d Dept. 2001). Wife paid $40,056 in self-employment tax, and $4,143 in additional Medicare taxes for a total deduction of $44,199. When these deductions are subtracted from Wife's gross income it results in a tax adjusted income of $737,870. As Wife has not offered sufficient proof of any additional deductions under DRL § 240(1-b)(b)(5)(vii), this Court will consider her income available for maintenance to be $737,870.

(c) Statutory Cap

The current post-divorce statutory maintenance guidelines include a directive that the payor's income should be capped at the sum of $241,000. See DRL § 236(B)(6)(e)(1). In the event that the payor's income exceeds this amount, the Court is directed to conduct an analysis of the fifteen factors specified in the statute to see if income above the cap should be utilized. See Yamauchi v. Yamauchi, 2026 NY Slip Op 04003 (2d Dept. 2026). The factors are similar to the equitable distribution factors discussed at length above. Specifically, this Court has considered the following factors: (a) the age and health of the parties; (b) the present and future earning capacity of the parties; (c) the wasteful dissipation of marital property, including transfers of marital property without fair consideration; (d) the standard of living established during the marriage; (e) the contributions and services of the payee spouse to the career of the other party and (f) the equitable distribution of marital property.

This Court has already considered the enumerated factors in relation to its equitable distribution awards above. To preserve judicial economy this Court will not discuss the same factors at length again. This Court finds that the same factors that weighed in Husband's favor in relation to equitable distribution also weigh in Husband's favor when considering post-divorce maintenance. Specifically, the Court has considered the upper-middle-class lifestyle that Husband enjoyed during the marriage, and his current decreased standard of living. The Court has also considered Husband's limited education and future earning capacity in comparison to Wife's advanced education and established earing capacity. The Court has also specifically considered the contributions that Husband made to the development and success of the marital businesses and the fact that Wife will remain the sole owner of these profitable businesses post-divorce. However, the Court has also considered the significant equitable distribution awards to Husband herein and finds that Husband no longer needs the amount of support awarded to him Pendente Lite. The equitable distribution awards to Husband herein should serve to level the financial gap between the parties.

Before determining whether it is necessary to consider the factors above to increase the statutory cap, the Court must first determine the presumptive award using the current cap. See Vilca v. Kim, 245 AD3d 1139 (2d Dept. 2026). Here, the Court has utilized the statutory post-divorce maintenance calculations utilizing an income of $139,360 for Husband and $241,000 for Wife. The resulting maintenance payment owed from Wife to Husband is $12,784 a year, or $1,065 a month. The Court finds that this award of maintenance would be unjust and inappropriate in this case after consideration of the statutory factors.

Based upon a consideration of all fifteen factors set forth in the statute, but particularly the factors indicated above, this Court finds that utilization of the current statutory maintenance income cap, and the resulting award, would be unjust and inappropriate. See Novick v. Novick, 214 AD3d 995 (2d Dept. 2023); see also Torkin v. Susac, 236 AD3d 1082 (2d Dept. 2025); Accordingly, this Court has determined that a more appropriate cap would be the sum of $400,000 for Wife. See Lesser v. Lesser, 203 AD3d 466 (1st Dept. 2022); see also S.A. v. J.A., 225 N.Y.S.3d 602 (Sup. Ct. NY Cty. 2025).

(d) Calculations

Under the post-divorce maintenance guidelines, the Court is required to compare three calculations using the parties' annual incomes. The direction to utilize either the first or second calculation is dependent upon whether the party paying maintenance (the "payor") is also required to pay child support. The presumptive award of maintenance shall be the lower of either the first or second calculation (whichever applies), as compared to the third calculation.

Here, Wife is only obligated to pay maintenance, not child support, so the second calculation applies. The second calculation requires the Court to subtract 20% of the payee's income from 30% of the payor's income. Here, Husband is the payee and 20% of his income is $27,872. Wife is the payor and 30% of her adjusted cap income is $120,000. When Husband's 20% is deducted from Wife's 30% the resulting award to Husband is $92,128.

For the third statutory calculation, the Court is required to add the payor's income and the payee's income and multiply the combined sum by 40%. The payee's income is then subtracted from this figure. Here, the parties' combined income is $539,360. Multiplying this figure by 40%, the calculated figure is $215,744. When Husband's income of $139,360 is subtracted from the combined amount the Court finds that the second calculation results in the sum of $76,384 a year. As the Court is directed to utilize the lower of the two calculations, the presumptive amount of guidelines maintenance is $76,384 a year or $6,365 a month.

(e) Duration

Having determined the amount of maintenance the Court must now determine a proper duration. The duration of maintenance is a matter committed to the sound discretion of the trial court. See Rennock v. Rennock, 203 AD3d 675 (1st Dept. 2022). For actions commenced after January 16, 2016, there is statutory guidance related to the duration of a maintenance award, however it is to be considered advisory. See DRL § 236(B)(6)(f)(1); see also Harris v. Schriebman, 200 AD3d 1117 (3rd Dept. 2021). In addition to the advisory schedule, the Court is directed to consider the duration factors set forth in DRL 236(B)(6)(e) when determining the duration of a maintenance award. See Gutierrez v. Gutierrez, 193 AD3d 1363 (4th Dept. 2021).

The parties were married from June 21, 2003, to the date of commencement of this action on July 23, 2020, a period of seventeen years. The statutory duration guidelines indicate that for a marriage of more than fifteen years but less than twenty years the duration of maintenance should be 30% to 40% of the marriage length. Accordingly, the final award of maintenance set forth herein is presumptively payable between sixty-two and eighty-two months. In addition to the guidelines calculation, the Court has also considered the following factors when determining a proper duration of the maintenance awarded: (a) the age, health and education of the parties; (b) the present or future earning capacities of the parties; (c) the standard of living established during the marriage; and (d) the equitable distribution of marital property. A discussion of these factors can be found in relation to the determination of maintenance and equitable distribution above.

In his Summation, Husband requests maintenance for a seventy-two-month duration. Wife's Summation argues that maintenance should be terminated, and that she should be awarded a credit for alleged overpayments of temporary maintenance. After considering the statutory factors this Court finds that, in accordance with the guidelines, Husband should be awarded maintenance for the period of seventy-two months that he requested, retroactively commencing on the date his Summons with Notice was filed on July 23, 2020.

(f) Retroactivity

A party's maintenance obligation commences and is retroactive to the date the application for maintenance was first made. See Diliberto v. Diliberto, 230 AD3d 612 (2d Dept. 2024); see also Sinnott v. Sinnott, 194 AD3d 898 (2d Dept. 2021). Here, Husband's first request for maintenance first appeared in his Summons with Notice dated July 23, 2020. Accordingly, his seventy-two month durational award of post-divorce maintenance commenced on that date. See Liadis v. Liadis, 207 AD2d 331 (2d Dept. 1994). When calculating retroactivity, the payor spouse is entitled to a credit for any pendente lite payments made pursuant to court order. See D'Iorio v. D'Iorio, 135 AD3d 693 (2d Dept. 2016). Credits are also appropriate for any payments made to third parties on the recipient spouse's behalf or for their benefit (such as carrying charges, rent, utilities, or similar payments). See Yunis v. Yunis, 94 NY2d 787 (1999); see also Grasso v. Grasso, 47 AD3d 762 (2d Dept. 2008).

The award of post-divorce maintenance herein, to wit, $6,365 a month, is payable retroactive to July 23, 2020. Under the unique circumstances of this six-year protracted divorce proceeding seventy-three months have elapsed since commencement. Accordingly, Wife will not have an ongoing obligation to pay future prospective maintenance following the issuance of this Decision as all seventy-two months of maintenance requested by Husband have been covered by the retroactivity period.

Seventy-two months from July 23, 2020, is July 23, 2026. During that time, Wife owes seventy-two months of support at $6,365 a month for a retroactive total of $458,280. However, Wife is entitled to a credit against this amount for payments made pursuant to the Pendente Lite Support Orders of this Court, of which there were four. See Gorman v. Gorman, 165 AD3d 1067 (2d Dept. 2018).

By Pendente Lite Order dated April 5, 2021 (Panepinto, J.) Wife was directed to pay temporary maintenance to Husband in the amount of $4,163 a month, retroactive to January 1, 2021. The same Order directed Husband to pay the sum of $1,587 a month to Wife in temporary child support. To avoid cross payments, Wife was authorized to deduct (keep) the $1,587 that she was obligated to pay Husband. In essence, Wife was directed to pay child support to herself using Husband's money. As a result, each month Wife paid Husband $1,587 in maintenance and Husband paid $1,587 in child support, without any funds being exchanged. Both parties are now entitled to their respective credits for these payments from the effective date of the Order January 1, 2021.

On Wife's application the April 5th Order was modified following Husband's withdrawal of $250,000 from the HELOC associated with the marital home. By Order dated July 19, 2021, (Panepinto, J.) Wife was directed to deduct the variable monthly payment of the HELOC from her maintenance payments to Husband. The Order specifically indicated that the payments were being made on Husband's behalf using his temporary maintenance award. Accordingly, Wife is entitled to a maintenance credit for every HELOC payment established at trial. See Skladanek v. Skladanek, 60 AD3d 1035 (2d Dept. 2009). This modified Pendente Lite Order remained in effect until October 2022.

On or about September 28, 2022, Husband filed a motion (Seq. No. 009) seeking an upward modification of his temporary maintenance award. Husband's motion was resolved by Pendente Lite Order dated January 6, 2023 (Marrone, J.) wherein Wife's temporary support obligation was increased to $14,044 a month, and Husband's child support obligation was decreased to $679 a month. These modifications were made retroactive to October 2022. The September 28th Pendente Lite Order maintained the provisions mandating Wife to pay both child support to herself, and the HELOC on Husband's behalf, using funds earmarked as Husband's maintenance, and creditable as such.

Finally, at the close of the trial record this Court issued an order downwardly modifying Wife's temporary maintenance obligation after consideration of the evidence offered at trial and her continuing claim of an inability to pay $14,044 a month. By Order dated October 20, 2025, Wife's maintenance was reduced to $8,000 a month, commencing December 2025. This Order continued the provisions regarding the payment of child support and the HELOC as set forth in the prior Pendente Lite Orders. Notably, the payments anticipated by the October 20th Order fall outside the trial record.

Considerable trial testimony was dedicated to discussing Wife's compliance with her temporary maintenance obligation. Husband credibly testified that Wife's payment of maintenance has been inconsistent at best, often late and almost never in the correct amount. Wife admitted that her payment of support was inconsistent but claimed that it was not due to willful non-compliance but rather because she was unable to pay the amount of support ordered. However, Wife admitted that every month she managed to pay all her own household expenses, which totaled approximately $60,000 a month (Def. Ex. AAS; Tr. 10/8/25, pg.1056). Wife also managed to pay the HELOC every month, even in months where she failed to pay Husband. Wife explained that she prioritized the HELOC because it could affect her credit score. Moreover, Wife stopped paying maintenance altogether from February to August 2024 claiming that she "believed" her maintenance obligation had been suspended by the Court. However, Wife was unable to produce any order or record indicating that her maintenance was ever suspended.

As indicated above, Wife is entitled to a credit for the maintenance she paid to Husband pendente lite against the retroactive total of $458,280. For the purposes of calculation Wife's "maintenance payments" include payments towards the HELOC, self-payments of child support, and direct payments to Husband. It is the burden of the party seeking a retroactive credit to establish the pendente lite support payments that they made with admissible documentary evidence. See e.g. Miller v. Miller, 25 AD3d 537 (2d Dept. 2006); see also D'Lorio v. D'Lorio, 135 AD3d 693 (2d Dept. 2016). Here, Wife as the party seeking a retroactive credit had the burden of establishing the same, which she failed to do.⁷ However, Husband offered his own chart of payments into evidence (Def. Ex. 17). Moreover, when Wife argued that the chart was incorrect, Husband agreed to amend the exhibit to reflect additional payments (Tr. 9/22/25, pg. 128).

Considering first the payment of direct support, the trial record establishes that from the commencement of this action in July 2020, to October 23, 2025, Wife paid a total of $332,538. In addition to the payment of direct support to Husband Wife also paid the HELOC every month on Husband's behalf. The trial record establishes that from July 2020 to August 2025 Wife paid the sum of $95,671 towards the HELOC. Finally, as the manner in which Wife pays herself child support does not require the exchange of funds, this Court can conclude that Wife has paid child support every month from the retroactive date set forth in the first Pendente Lite Order of January 2021. Wife's self-payment of child support was first in the amount of $1,587 from January 2021 to September 2022 and then $679 a month from October 2022 to the present. Accordingly, Wife is entitled to a credit in the amount of $58,450 till the end of trial in October 2025, or $65,240 if the payments are credited to date. Utilizing these figures Wife is entitled to a retroactive credit in the amount of $483,449. Notably, these calculations result in an "overpayment" of maintenance of approximately $25,169.

In summation, Wife seeks an overpayment credit against equitable distribution. While such credits are permissible in some circumstances, they are not mandatory. See Kaufman v. Kaufman, 198 AD3d 31 (2d Dept 2020). For Wife to be entitled to an overpayment credit, this Court would be required to make a finding that the interim maintenance award(s) were "excessive" or "inequitable at the time they were made. See Johnson v. Chapin, 12 NY3d 461 (2009); see also Habib v. Habib, 227 AD3d 874 (2d Dept. 2024). This Court has not made such a finding. See Wechsler v. Wechsler, 58 AD3d 62 (1st Dept. 2008), appeal dismissed 12 NY3d 883 (2009). Rather, this Court finds that the temporary support orders, which were issued by prior Judges  ⁸ presiding over this case, were appropriate and adequately supported at the time they were issued. The purpose of a temporary award of maintenance and a final award of maintenance differ. A temporary award of maintenance is generally intended to "tide over the more needy party, not to determine the correct ultimate distribution." See Jordan v. Jordan, 2 AD3d 687 (2d Dept. 2003). In contrast, a final award of maintenance requires consideration of several factors not considered when determining a pendente lite motion, including the considerable awards of equitable distribution to Husband herein. Accordingly, this Court declines to award an equitable distribution credit simply because the pendente lite maintenance awards exceeded the final maintenance ultimately awarded. See Moyal v. Moyal, 85 AD3d 614 (1st Dept. 2011); see also Walker v Walker, 130 AD3d 805 (2d Dept. 2015); Vantine v. Vantine, 125 AD3d 1259 (3rd Dept. 2015). Moreover, the recoupment of support payments is generally against public policy. See Rader v. Rader, 54 AD3d 919 (2d Dept. 2008). While this Court's payment analysis ends at the close of the trial record in October 2025, the same ruling against recoupment shall apply to any payments made to the issuance of this Decision and the resulting Judgment of Divorce. A Short Form Order terminating maintenance shall be issued in conjunction with this Decision

Child Support

There are two "children" of the parties' marriage. J. G. was born on **/**/2006, and G. G. was born on **/**/2011. J.G. is currently nineteen years old and G.G. is fifteen years old. Wife was granted sole custody of both children by consent Order dated May 7, 2025, and both children continue to reside with Wife although J.G. is now a young adult attending Providence College as a full-time student.

Although the issue was only discussed tangentially at trial, Wife seeks an award of child support for both children. As Wife first asserted a claim for child support in her Answer dated August 11, 2020, the award of child support herein shall be retroactive to that date. Husband shall be entitled to a credit against retroactive arrears for the pendente lite child support payments he made. As discussed at length above, in this case Wife paid herself child support, utilizing funds earmarked as Husband's maintenance.

The Child Support Standards Act sets forth the method by which the "presumptively correct" amount of child support can be calculated. See Domestic Relations Law § 240; Family Court Act § 413. A three-step process is required by the relevant statutes. The first step requires a calculation of the "combined parental income" up to a statutory cap, currently $193,000. See NY Soc. Serv. Law § 111-i(2)(b). The second step requires the Court to multiply the combined parental income by a specified percentage based upon the number of children. The third step is only triggered when the combined parental income exceeds the statutory cap. Once the statutory percentage is applied to the parties' combined income, and each party's pro rata contribution to that amount is determined, the resulting sum is presumptively the correct amount of child support.

The correct statutory percentage to be applied to the parties' combined parental income for the two children is 25%. See Matter of Santman v. Schonfeldt, 159 AD3d 914 (2d Dept. 2018). Application of this percentage to the combined parental income will provide the appropriate level of support to meet the basic needs of the children. As discussed above, Husband's income for CSSA purposes is $119,520. Wife's adjusted income for CSSA purposes is $737,870. Given that a final award of maintenance was technically awarded to Husband, the Court is generally required to add the maintenance paid to Husband's income and subtract it from Wife's. See DRL § 240 (1-b)(b)(5)(iii); M.S. v. M.S. 141 N.Y.S.3d 255 (Sup. Ct. Mon. Cty. 2021). However, DRL § 240 also requires an "specific adjustment" in the child support payable upon the termination of maintenance. Here, maintenance already terminated in July 2026. Accordingly, as no further maintenance will be paid to Husband, his reported income of $119,520 remains appropriate for calculating child support as it is reflective of his earning capacity. The Court is authorized to use the most accurate income information available to it. See Matter of Dailey v. Goven, 136 AD3d 1029 (2d Dept. 2016); see also Matter of Moran v. Grillo, 44 AD3d 859 (2d Dept. 2007). Even if the Court were to include prior maintenance paid on a retroactive basis only, Husband's income would still be inaccurate given the fluctuating and inconsistent way in which Wife paid, or failed to pay, pendente lite support. For example, in ten months of 2025 Wife paid $163,200 in maintenance while in all of 2024 she paid $50,278 pursuant to the same Court Order.

For the same reasons, it would also be inequitable to deduct the payment of maintenance from Wife's income, as she is no longer required to pay maintenance as of the date of this Decision and her payment history is erratic at best. Accordingly, this Court will utilize an income of $119,520 for Husband and an income of $737,870 for Wife. Any other calculation would immediately result in the filing of a motion for a downward modification, as both parties' incomes will have changed by more than 15% after the issuance of the order terminating maintenance, which will be issued in conjunction with this Decision. See Matter of Lagani v. Li., 131 AD3d 1246 (2d Dept. 2015).

The combined parental income of the parties' is therefore $857,390. However, when calculating CSSA child support, there is a statutory cap limiting the parties combined income. See DRL § 240(1-b); see also Koutsouras v. Mitsos-Koutsouras, 198 AD3d 630 (2d Dept. 2021). The statutory cap is presently $193,000. When determining how to address income above the statutory cap the Court is directed to consider a number of factors including: (1) the financial resources of the parents; (2) the physical and emotional health of the children; (3) the standard of living the children would have enjoyed if the marriage had not dissolved; (4) whether one parent's income is considerably greater than the others; and (4) any extraordinary expenses that will be incurred by the non-custodial parent is exercising visitation. See DRL § 240 (1-b)(f); see also Park v. Park, 193 AD3d 1065 (2d Dept. 2021); Matter of Peddycoart v. MacKay, 145 AD3d 1081 (2d Dept. 2016). Notably, neither party has specifically addressed the issue of the statutory cap and whether it should be imposed. In fact, both parties' summations after trial are mostly silent on the issue of child support. Husband's Summation requests that the current pendente lite child support amount continue until emancipation. Wife's Summation requests a de novo recalculation of child support, but only prospectively (Def. Sum. pg. 67).

In determining whether to utilize income above the cap the Court has considered the enumerated statutory factors and makes the following findings. J.G. is not a "minor child" having reached the age of eighteen, and she is a full-time student in a college located in Rhode Island. Both parties have sufficient financial resources to support the children, but Husband's relationship with his children has become strained. Even if that relationship were to improve, visitation would require plane travel as he resides in Florida. Regarding the standard of living enjoyed by the subject children, there is no evidence in the record to support a finding that the children lived anything beyond a middle-class lifestyle. While both parties testified at length as to their own standard of living during the marriage, neither connected the parties' prosperity to the children's standard of living. There is no evidence in the trial record to establish that the children were taken on vacation with their parents, were engaged in expensive extracurricular activities, wore expensive clothes, or that their parents' wealth was otherwise used to substantially increase their lifestyle. The only relevant testimony in the record is that they were both enrolled in private school, an expense that will be addressed as a child support "add on." Neither party's trial testimony or Summation after Trial addressed the issue of the statutory cap or whether it should be imposed. Accordingly, after specific consideration of these factors, and a general consideration of the other factors set forth in DRL § 240, and as the parties failed to meaningfully address the issue, the Court finds that an application of the statutory cap of $193,000 without utilization of income above that cap is appropriate. See Marino v. Marino, 183 AD3d 813 (2d Dept. 2020); see also Hepheastou v. Spaliaras, 201 AD3d 793 (2d Dept. 2022).

The two children of this marriage reside with Wife. The applicable child support percentage is twenty-five percent. The capped combined parental income is $193,000. Twenty-five percent of the capped combined income is $48,250. This figure represents the parties' combined child support obligation. Husband's pro rata share of this combined child support amount is 13%, and Wife's share is 86% percent. Thirteen percent of $48,250 is $6,273, which is Husband's annual child support obligation. His monthly obligation is therefore $523. Husband is hereby ordered to pay the sum of $523 directly to Wife on or before the 15th of each month. However, given the issue date of this Decision, the first payment shall be due on or before October 15, 2026.

Husband's ongoing child support obligation may be revisited by a Court of competent jurisdiction upon a showing of "(i) a substantial change in circumstances; or (ii) that three years have passed since the order was entered, last modified or adjusted; or (iii) there has been a change in either party's gross income by fifteen percent or more since the order was entered, last modified or adjusted." See Mejia v. Mejia, 106 AD3d 786, 964 N.Y.S.2d 607 (2d Dept. 2013). Husband's may also seek a reduction in his child support when J.G. reaches the age of twenty-one. And the child support will end on its own terms when G.G. reaches the age of twenty-one.

Husband shall be obligated to maintain a life insurance policy with the subject children as beneficiaries and Wife as trustee until G.G. reaches the age of twenty-one. See Geller v. Geller, 69 AD3d 563 (2d Dept. 2010). The initial policy must be for at least $40,000 but may be reduced each year to reflect the outstanding balance of future child support owed. Husband shall provide proof that the insurance policy exists to Wife within 30 days of the issuance of a Judgment of Divorce, Wife shall be authorized to have access to the policy to ensure that it is being maintained.

(a) Retroactivity

Child support awards are generally retroactive to the first time that they were affirmatively requested. See Crane v. Crane, 264 AD2d 749 (2d Dept. 1999). A review of the official court file reveals that that Wife made her first application for child support in her Answer which was filed on August 11, 2020. Accordingly, Wife is entitled to a retroactive award of child support for seventy-two months from August 2020 to August 2026.

Husband owes seventy-two months of child support for the subject children at a rate of $523 a month for a total retroactive award of $37,656. When calculating arrears, the Court is directed to credit payments of pendente lite child support ordered by the Court but not amounts voluntarily paid for the benefit of the children. See LiGreci v. LiGreci, 87 AD3d 722 (2d. Dept. 2011).

As set forth above, the pendente lite orders issued in this case have all required Wife to pay herself temporary child support as a deduction from Husband's temporary maintenance award. The first Pendente Lite Order dated April 5, 2021, required Wife to pay herself child support in the amount of $1,587 a month from January 2021 to October 2022. The second Pendente Lite Order, dated January 6, 2023, required Wife to pay herself $679 a month from October 2022 to the present. These payments, which total to approximately $65,240 were all credited to Wife against Husband's retroactive maintenance award above. As the amount of the interim child support payments exceed the final retroactive award of child support, this Court concludes that Husband does not owe retroactive arrears as they have been satisfied. For the same reasons as set forth above, this Court finds that Husband is not entitled to any overpayment credit, as the Pendente Lite Orders were not excessive, and were adequately supported when issued.

(b) Child Support Add-On's / Tuition Arrears

In her Summation, Wife seeks a "credit," seemingly against equitable distribution, for the funds that she expended towards the subject children's unreimbursed medical expenses, and health-insurance premiums pendente lite. Wife also seeks a credit for private school education tuition and expenses paid from "grades K-12." Wife further seeks an allocation of future "statutory child-related add-on's pursuant to DRL § 240(1-b)." Finally, Wife seeks an order directing Husband to obtain a life insurance policy for the benefit of the subject children.

Child support add-on expenses are generally attributed to the parties on a pro-rata basis pursuant to the CSSA guidelines. See DRL § 240(1-b)(c); Vasileva v. Christy, 195 AD3d 980 (2d Dept. 2021). Some of the expenses enumerated in the statute are mandatory, while others are discretionary. See Michael J.D. v. Carolina E.P., 138 AD3d 151 (1st Dept. 2016). The Court shall determine the allocation of each parent's share of "reasonable health care expenses not reimbursed or paid by insurance." See DRL § 240(1-b)(c)(5)(v). The Court may allocate educational expenses and direct a non-custodial parent to pay their proportionate share. See DRL § 240(1-b)(c)(7). As for the mandatory allocation of unreimbursed medical expenses, this Court finds that Husband shall be responsible for paying 13% of the subject children's reasonable medical and dental expenses not covered by health insurance until they reach the age of twenty-one. Medical expenses shall include any reasonable mental health expenses including any therapy that is at least partially covered by Wife's health insurance. Wife shall be obligated to pay the remaining 86% of any unreimbursed expense. Neither party has offered any evidence regarding retroactive unreimbursed medical expenses incurred during the pendency of this action. Accordingly, Wife's application for a retroactive ward of unreimbursed medical expense

To the extent that Wife seeks a "credit" for unreimbursed expenses, it was her burden to establish that she paid Husband's pro-rata share of unreimbursed medical expenses after requesting contribution. See Matter of Rutuelo v. Rutuelo, 98 AD3d 518 (2d Dept. 2012); see also Matter of Palmer v. Palmer, 71 AD3d 1152 (2d Dept. 2010). Proof of actual payment to third-party medical providers is generally required for a party seeking reimbursement to satisfy their burden. See Matter of Uriarte v. Ippolito, 54 AD3d 379 (2d Dept. 2008). Here, Wife has offered no evidence whatsoever to support her claim of unreimbursed medical expenses. There are no medical or dental bills in the evidentiary record nor is there any proof that Wife ever requested contribution from Husband. Accordingly, her application for "a credit" for those alleged payments is denied due to a failure of proof. See Shanon v. Patterson, 38 AD3d 519 (2d Dept. 2007); see also Schacker v. Schacker, 43 AD3d 1029 (2d Dept. 2007).

In addition to unreimbursed medical expenses, Wife's Summation requests an allocation of educational expenses from kindergarten through grade twelve. Wife specifically waived any contribution towards college tuition. Unlike the obligation to provide for a child's healthcare expenses, funding a child's private school education is discretionary. See Cimons v. Cimons, 53 AD3d 125 (2d Dept. 2008); see also Michael J.D. v. Carolina E.P., 138 AD3d 151 (1st Dept. 2016). Notably, the parties' youngest child G.G. was nine years old on the date of commencement, so Wife's proposed timeframe begins well before the commencement of the present action. Moreover, several of the documents that Wife relies upon in support of her application were never admitted into evidence at trial (e.g. Def. proposed Exs. AE & AG). Wife's Summation asserts that she paid approximately $265,000 in total school costs, of which $160,000 represented tuition, but then cites to trial testimony where her approximation was $130,000 (Tr. 10/8/25, pg. 964)⁹ As it does in several other areas, Wife's Summation impermissibly relies upon allegations of fact outside the trial record.

What is undisputed is that both subject children have always attended private school, a decision that was jointly made by the parties during their marriage. Wife also credibility testified that both daughters have been thriving academically. Under these circumstances, this Court finds that Husband should be obligated to pay his 13% share of the remainder of G.G.'s high school tuition upon being served with a bill for the same. See Matter of Durso v. Durso, 68 AD3d 1107 (2d Dept. 2009). When making this determination, this Court has considered the financial circumstances of both parties, the best interests of the child, and the requirements of justice. See DRL § 240 (1-b)(c)(7); see also Mrowka v. Mrowka, 260 AD2d 613 (2d Dept. 1999).

In addition to a prospective allocation, Wife also seeks a retroactive award. As the party seeking an award of retroactive tuition payments, Wife bore the burden of proof of establishing her claim at trial. Wife was required to offer admissible evidence establishing the amount of tuition that the subject children were required to pay and whether those payments were made. This is typically satisfied through the submission of tuition billing statements. Wife was further required to establish that she paid "Husband's share" of the tuition expenses to support a claim for "reimbursement" or that the tuition payments remained due and owing for to support a claim for "enforcement." Here, Wife failed to provide any documentation to establish either of these requirements. Other than her self-serving testimony, the record is devoid of any billing documentation from which this Court could determine the tuition paid or the reasonableness of additional educational expenses. Moreover, while Wife relies upon banking documentation to prove the payments she made, those payments were all made from 2017 to 2020, before the commencement of this action (See Def Exs. AAE-AAG). In the absence of documentary evidence, this Court is unable to award retroactive arrears without resorting to speculation. See Shanon v. Patterson, 38 AD3d 519 (2d Dept. 2007); see also Schackler v. Shackler, 43 AD3d 1029 (2d Dept. 2007); Aleksandr V. v. Juliya V., 191 N.Y.S.3d 920 (Sup. Ct. Kings. Cty. 2023).

Motions Referred to Trial / Civil Contempt

During the course of this protracted proceeding thirty-six motions were filed. Thirteen motions were filed by Husband, and twenty-three were filed by Wife. Several of these motions were referred to trial in whole or in part. According to the official court record motion sequence numbers 016, 023, 024, 025, 026, 029 and 033 were referred to trial. This Court has reviewed the enumerated motions after considering the factual findings and legal rulings set forth at length herein and has determined that the requests for relief set forth in motion sequence numbers 024, 025, 026 and 033 have either been resolved or rendered moot by the issuance of this Decision. Accordingly, no further action need be taken in reference to those motions. This leaves motions 016, 023 and 029, which all seek enforcement or findings of civil contempt against Wife, open for consideration.

By Order to Show Cause dated October 17, 2023 (Seq. No. 016), Husband sought an Order adjudicating Wife to be in civil contempt for her failure to comply with the second Pendente Lite Order, dated January 6, 2023, which obligated her to pay the sum of $14,045 a month in temporary support. Husband also sought an award of counsel fees in the amount of $6,000 to cover the expense of having to file a contempt motion. Wife filed written opposition to the motion on October 20, 2023, claiming an inability to pay the amount awarded. Husband filed reply papers on November 27, 2023.

By Notice of Motion dated April 15, 2025 (Seq. No. 023), Husband, then self-represented, sought an order compelling Wife to comply with the January 6th Order, for a determination of arrears owed pursuant to that Order, and for an award of counsel fees. Wife filed written opposition to the motion on May 15, 2025. Husband's request for counsel fees in relation motion sequence 023 was resolved by Short Form Order dated June 25, 2025, which directed Wife to pay the sum of $45,000 in interim counsel fees so that Husband could retain trial counsel.

By Order to Show Cause dated August 13, 2025 (Seq. No. 029), Husband sought an Order adjudicating Wife to be in civil contempt for her continued failure to comply with the January 6th Order. Husband further alleged that Wife was in civil contempt for not complying with the Orders of this Court dated May 7, 2025, and June 17, 2025, which both directed her to deposit the sum of $250,000 into an escrow account  ¹⁰ to be used to satisfy arrears and fund potential future obligations related to this case. Wife failed to file opposition to motion sequence number 029.

Unless all the material facts are undisputed, a motion seeking a finding of civil contempt requires an evidentiary hearing. See Bergman v. Bergman, 84 AD3d 537 (1st Dept. 2011). Where, as here, the motions are filed around the start of trial, or the issues are interrelated with trial issues, the issues of contempt are best raised at that trial. See Mage v. Mage, 174 AD3d 884 (2d Dept. 2019). No particular day of trial was dedicated to the enforcement and contempt motions, rather, given the pervasive nature of Wife's failure to comply with court orders, the issue of non-compliance was raised throughout the trial. However, as Wife's non-compliance was primarily related to the payment of maintenance, most of the requests for relief sought by Husband have already been adjudicated herein (See "Maintenance" above).

To prevail on a motion for civil contempt, the moving party must prove: (1) the existence of a clear and lawful mandate of the court; (2) that the party alleged to have disobeyed the order was aware of its terms, and (3) that the moving party's rights were prejudiced as a result of the non-compliance. See Coyle v. Coyle, 63 AD3d 657 (2d Dept. 2009); See also Keller v. Keller, 126 AD3d 940 (2d Dept. 2015). These elements must be established by clear and convincing evidence. See McCormick v. Axelrod, 59 NY2d 574 (1983); See also Matter of Hughes v. Kameneva, 96 AD3d 845 (2d Dept. 2012). While "willfulness" is an essential element for a finding of "criminal contempt," the mere act of disobedience, regardless of motive, is sufficient to establish "civil contempt" if such disobedience "defeats, impairs, impedes, or prejudices the rights or remedies of a party." Therefore, a showing of willfulness is unnecessary for a finding of civil contempt. El-Dehdan v. El-Dehdan, 114 AD3d 4 (2d Dept. 2013); See also Yalkowsky v. Yalkowsky, 93 AD2d 834 (2d Dept. 1983)

Throughout trial, Husband credibly testified as to Wife's non-compliance with court orders, specifically the orders that required her to pay temporary maintenance. As has been addressed throughout this Decision, Wife failed to comply with the clear terms of either the first Pendente Lite Order dated April 5, 2021, or the second Pendente Lite Order dated January 6, 2023. As set forth in his chart of payments (Pl. Ex. 17) Wife's payment of support has been inconsistent since July 2021 when she missed her first payment until the end of trial when Wife admitted that she had not paid any support in the months of August 2025, September 2025 and October 2025. Husband established that during those five years Wife failed to make a payment on at least thirty occasions and paid sporadic amounts ranging between $32.02 in September 2021 to $140,000 in May 2025 when this Court ordered Wife to make a lump sum payment using marital funds (See SFO 3/31/25). Husband further established that Wife was aware of these lawful mandates of the Court and that the orders were never vacated, suspended, or reversed on appeal. Notably, Wife was already held to be in civil contempt once during this proceeding. By Order dated June 22, 2023 (Marrone, J.), Wife was found to be in civil contempt for the non-payment of maintenance and counsel fees totaling approximately $100,678, an amount that has been subsequently purged through lump sum payments ordered by this Court.

Husband also testified, at length, to the degree of prejudice that he suffered as a result of Wife's inconsistent and incomplete payments. At times he was rendered homeless, unable to pay bills, and he was forced to liquidate his only retirement account to pay his attorneys (Tr. 9/23/25, pg. 292). Husband has also routinely borrowed money from friends and relatives to make ends meet in the absence of support. Finally, when this Court ordered Wife to reduce the amount of arrears by making lump sum payments, she did so by liquidating marital accounts. This has resulted in the parties' liquid assets being used to fund Wife's pendente lite obligations, which has rendered those funds unavailable for a "roll-over" or cash distribution. Rather, this Court has been forced to issue distributive awards. This loss of liquidity is prejudicial to Husband as it limits his enforcement rights. See Sykes v. Sykes, 35 940 N.Y.S. 2d 474 (Sup. Ct. NY Cty. 2012). It is also a specific factor this Court considered when determining equitable distribution. See DRL § 236(B)(5)(d)(7).

This Court credits Husband testimony and documentary evidence and finds that he has established by clear and convincing evidence that Wife was aware of the orders at issue, that she disobeyed those orders, and that he has been prejudiced as a result. See Mohen v. Mohen, 2026 NY Slip Op 01195 (2d Dept. 2026); see also Breskin v. Moronto, 172 AD3d 1298 (2d Dept. 2019). Once contempt has been established, the burden shifts to Wife to offer evidence sufficient to establish a viable defense. See Shemtov v Shemtov, 153 AD3d 1295 (2d Dept. 2017).

In opposition, Wife does not allege that she was unaware of the Court's orders. In addition, she failed to produce any evidence whatsoever to support her claim that her maintenance obligation was "suspended." Moreover, Wife has also failed to establish a viable "inability to pay" defense. The extensive discussion of Wife's income set forth elsewhere herein establishes that she has had the means to comply with her court ordered support obligations. The evidence at trial supports a finding that Wife simply elected to prioritize Husband's support last amongst her monthly obligations. On cross examination, Wife admitted that she pays approximately $60,000 a month for her own expenses (Tr. 10/8/25, pgs. 1051-1056). Wife also admitted that she has paid the HELOC every month since being directed to do so, even in months were she neglected to make any payment to Husband. It is incumbent on a party claiming an inability to pay to offer documentary evidence supporting their lack of funds. See El-Dehdan v. El-Dehdan, 26 NY3d 19 (2015). A conclusory claim of an "inability to pay" unsupported by financial documentation is insufficient to raise a defense. See Matter of Fitzgerald, 144 AD3d 906 (2d Dept. 2016); see also Farkas v. Farkas, 209 AD2d 316 (1st Dept. 1994). Here, the financial information in the record belies Wife's claimed inability to pay. See Matter of Weiss v. Rosenthal, 195 AD3d 730 (2d Dept. 2021); Matter of Coward v. Biddle, 210 AD3d 1083 (2d Dept. 2022).

In addition to Wife's failure to comply with the temporary maintenance orders of this Court, Husband also claims that Wife failed to comply with this Court's orders directing her to set up a fund for future payments. By Order dated May 7, 2025, Wife was directed to either "liquidate $250,000 of her [Empower] 401(k)" or obtain a $250,000 loan from whatever source she could. If Wife elected to take a loan, she was directed to deposit $250,000 into escrow, if she elected to liquidate her 401(k), she was directed to deposit the net proceeds into escrow. By subsequent Order dated June 17, 2025, this Court reminded Wife of her obligation pursuant to the May 7th Order and modified that Order only to the extent that she was authorized to deposit the funds into a dedicated bank account, instead of an attorney escrow account.

Wife never complied with these Orders. Wife testified that when she contacted Empower to arrange for a loan, she was told that she would have to establish "hardship" which she did not believe she could do. It is unclear if Wife ever explained that the loan was court ordered. Wife then inquired as to the terms of an early withdrawal, and was informed that if she were to liquidate $250,000 from her 401(k) she would net approximately $107,000 to $110,000 after taxes and penalties. As this was not palatable to Wife, she allegedly borrowed $50,000 from her 401(k) and $60,000 from her mother, although no documentation was provided at trial to establish these amounts (Tr. 10/7/25, pgs. 866-870). Wife then allegedly elected to pay the funds she received directly to Husband, and for counsel fees, although no documentation was offered to establish those payments. Husband did not acknowledge ever receiving a $50,000 lump sum payment during this time frame. Moreover, the clear terms of the June 17th Order prohibited any withdrawal unless specifically directed by the Court. While Wife claims that she partially complied with "her understanding" of the Orders, it is undisputed that funds were never deposited into an account for future use, as required. Husband was prejudiced by Wife's failure to comply with the May 7th and June 17th Orders as there is no fund from which liquid funds can be paid to satisfy at least some of the distributive awards herein.

Accordingly, as Husband has met his burden and Wife has failed to raise a viable defense, this Court adjudicates Wife to be in civil contempt of the Orders identified in Motions 016, 023 and 029. See Goldsmith v. Cavuoti, 2026 NY Slip Op 01494 (2d Dept. 2026); see also Chen v. Chen, 245 AD3d 412 (1st Dept. 2026). However, as this Court has already considered Wife's non-compliance as a factor when determining the proper distribution of the marital estate and has found that Wife does not owe retroactive maintenance arrears, the Court need not craft an additional contempt remedy at this time. However, this finding of contempt has been specifically considered in relation to Husband's request for a final award of counsel fees, as discussed below. See Tankleff v. Tankleff, 239 AD3d 685 (2d Dept. 2025); see also Brandford v. Brandford, 237 AD3d 792 (2d Dept. 2025); Matter of Tender Touch Health Care Servs. Inc. v. Tnuzeg LLC., 246 AD3d 548 (1st Dept. 2026).

Upon a determination that a party has committed civil contempt, the court may indemnify the aggrieved party for counsel fees expended in relation to the motion. See Tankleff v. Tankleff, 239 AD3d 685 (2d Dept. 2025); see also Kohli v. Tewari, 216 AD3d 512 (1st Dept. 2023); Jud. Law § 773; DRL §§ 237(b); 237(c). Motion sequence number 023 filed by Husband's current counsel seeks an award of $5,000. Motion sequence number 016 filed by Husband's former counsel seeks an award of $6,000. As Husband's current counsel is making a broader application for a final award of counsel fees, the finding of contempt will be considered as an additional factor below. In relation to motion 016, this Court finds that Husband is entitled to reimbursement for fees reasonably expended in relation to the motion. See Brandford v. Brandford, 237 AD3d 792 (2d Dept. 2025). However, any application for counsel fees in a matrimonial action must be supported by billing documentation. See Prichep v. Prichep, 52 AD3d 61 (2d Dept. 2008). Upon review, the limited billing documentation annexed to motion 016 only supports an award of $1,725. Accordingly, Wife will owe Husband a reimbursement award of counsel fees in the amount of $1,725 for fees reasonably incurred in relation to the motion by his former counsel.

Counsel Fees

Throughout the course of this five-year litigation, both parties have been represented by counsel and have also litigated portions of the case while self-represented. Since commencement, Husband has retained two attorneys. Husband's first attorney withdrew due to his inability to pay legal fees. Wife, on the other hand, has been represented by eight different attorneys. Six were substituted on consent, while the remaining two attorneys withdrew for cause. Wife's pattern of hiring and discharging attorneys continued through trial. Wife represented herself for the first five days of trial, then retained competent counsel for the remaining three days. By the end of trial, Wife was openly exhibiting dissatisfaction with her attorney. Wife contacted the court via post-trial correspondence requesting to prepare a self-represented Summation but further indicating that she was not discharging her attorney. By Post-Trial Order dated March 10, 2026, Wife was directed to cooperate with her attorney of record in the preparation of her Summation. Despite the terms of this Order, Wife filed a self-represented Summation on March 23, 2026. As set forth herein, Wife's Summation was procedurally improper as it cited documents not in evidence and included factual assertions not elicited during trial. Wife's attorney filed a post-trial Order to Show Cause to withdraw as counsel on March 26, 2026. Counsel's motion was granted by Order dated June 11, 2026, after Wife failed to file opposition. In her Summation, Wife argues that Husband's application for counsel fees should be denied in its entirety.

Husband's request for a final award of counsel fees is limited to fees charged by his trial attorneys H. Benjamin Perez & Associates, P.C. In his Summation, Husband argues that Wife is the more monied spouse in this action and he is therefore entitled to a rebuttable presumption of a fee award pursuant to Domestic Relations Law 237(a). Husband requests a final counsel fee award of $200,000. Husband testified in support of his attorney's representation at trial, and detailed billing records were offered into evidence (Pl. Ex. 21). This Court finds that the billing records are sufficient to satisfy the 60-day billing requirements of 22 NYCRR 1400. See Spataro v. Spataro, 211 AD3d 1069 (2d Dept. 2022). Mr. Perez's representation began with the filing of a Notice of Appearance on June 27, 2025. The billing documentation provided indicates that an itemized bill will sent to Husband monthly in July 2025, August 2025 and September 2025. The billing documentation provided indicates that during that three month period Husband incurred $115,320 in legal fees. The last bill provided from September 2025 indicates that Husband owed $72,651 of the total amount charged. While Husband's counsel requests a total award of $200,000, this Court is constrained to only consider fees that are supported by adequate billing documentation, to wit, $115,320.

An award of reasonable counsel fees is a matter within the sound discretion of the trial court. See Gilliam v. Gilliam, 109 AD3d 871 (2d Dept. 2013). The issue of counsel fees is controlled by the equities and circumstances of each case. See Nicodemus v. Nicodemus, 98 AD3d 605 (2d Dept. 2012). While DRL § 237 permits consideration of many factors, paramount among these factors is financial need. See O'Halloran v. O'Halloran, 58 AD3d 704 (2d Dept. 2009); see also Silverman v. Silverman, 304 AD2d 41 (1st Dept. 2003)."An award of an attorney's fee will generally be warranted where there is a significant disparity in the financial circumstances of the parties". Cohen v. Cohen, 73 AD3d 832 (2d Dept. 2010). The main purpose of a counsel fee award is to "redress the economic disparity between the monied spouse and the non-monied spouse. See O'Shea v. O'Shea, 93 NY2d 187 (1999). Other factors to be considered include the relative merits of the parties' positions, and if either party engaged in conduct that resulted in a delay of the proceedings or unnecessary litigation. See Vitale v. Vitale, 112 AD3d 614 (2d Dept. 2013). While all relevant factors must be considered, there is a rebuttable presumption that counsel fees should be awarded to the less monied spouse. See Marchese v. Marchese, 185 AD3d 571 (2d Dept. 2020); see also Boltz v. Boltz, 178 AD3d 656 (2d Dept. 2019).

The primary consideration when determining a counsel fee application is financial need. See Rennock v. Rennock, 203 AD3d 675 (2d Dept. 2022). Accordingly, when considering an application for counsel fees, the Court must first determine which party represents the "more monied spouse." As set forth above, Wife has been established as the more monied spouse in this action as she earns a significantly higher income than Husband as the sole owner and operator of two profitable businesses. However, this must be considered in conjunction with the financial awards to Husband herein. Although Husband has not been awarded prospective maintenance, he has been awarded approximately $1,618,984 in distributive awards, not including the distribution of equity in the former marital home. The awards of equitable distribution herein serve to ameliorate the income disparity between the parties provided they are paid, which is questionable given Wife's history of non-compliance with court orders. After considering all the equities and circumstances of the case, this Court finds that Wife remains the more monied spouse, albeit to a considerably lesser degree than when the case commenced. As Wife has been determined to be the less monied spouse, there is a rebuttable presumption that Husband is entitled to an award of counsel fees. See Varnit v. Varnit, 2026 NY Slip Op 04893 (2d Dept. 2026); see also Sawaas v. Elzanaty, 2026 NY Slip Op 04336 (2d Dept. 2026); Borzilleri v. Borzilleri, 249 AD3d 665 (2d Dept. 2026).

In addition to consideration of the parties' respective financial circumstances the court must also consider the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has delayed the proceedings or engaged in unnecessary litigation. See Jacobson v. Jacobson, 240 AD3d 676 (2d Dept. 2025); see also Torkin v. Susac, 236 AD3d 1089 (2d Dept. 2025). As Husband's counsel fee application is limited to Mr. Perez's representation, the Court will limit its consideration to events that occurred during or around the trial of this action.

During the first five days of trial Wife elected to represent herself despite having funds to retain counsel. It is well settled that while self-represented litigants are held to the same standards of an attorney, they are entitled to some "procedural leeway" in the presentation of their case to the court. See Stoves & Stones, Ltd. v. Rubens, 237 AD2d 280 (2d Dept. 1997); see also Mirzoeff v. Nagar, 52 AD3d 789 (2d Dept. 2008). In the present case, Wife was granted significant procedural latitude by this Court, but at the expense of expediency. Wife's questions were often phrased in a manner that rendered them confusing and difficult to answer. Wife's questions also fluctuated in both timeframe and topic. Moreover, much of her inquiry was beyond the scope of the issues relevant to this proceeding. Wife was admonished on several occasions for wasting time and warned that counsel fees would result (See e.g. Tr. 9/23/25, pg. 281). Husband's attorney also made several records objecting to the nature of Wife's inquiry and the time it was taking (e.g. Tr. 9/24/25, pg. 443).

In addition, both parties had to be repeatedly admonished for their behavior during trial. Wife was repeatedly admonished for behaving in a manner not befitting a serious court proceeding. Wife was admonished for laughing at Husband's testimony, rolling her eyes, throwing papers, banging her hands on the table and crying out from counsel table in response to testimony with which she did not agree. Husband was also admonished for condescending behavior towards Wife and for angry outbursts during trial. However, his behavior was to some degree curtailed by the presence of his attorney who privately admonished him on more than once occasion. The behavior of both parties during trial has been considered by this Court when assessing an appropriate counsel fee award. See Gordon v. Anderson, 179 AD3d 402 (1st Dept. 2020).

Wife's mid-trial decision to retain Mr. Randal Clarke Esq. substantially improved the procedural flow of the proceedings. However, from his first appearance, it was clear that Wife was attempting to micromanage his representation. Wife continuously interrupted his examination by waving notes in his face, tapped his shoulder or leg, pulling on his suit jacket, and on at least one occasion hitting him with enough force for this Court to take notice (Tr. 10/17/25, pg. 1171). When repeatedly admonished, Wife attempted to explain these interruptions by alleging that her attorney did not adequately know the facts of the case (Tr. 10/17/25, pg. 1171). To the contrary, this Court finds that Mr. Clarke did an excellent job of zealously representing Wife's interests under the extremely difficult circumstances of being retained mid-trial in a complicated proceeding. This Court unequivocally finds that Mr. Clarke adequately and zealously advocated for Wife's legally sustainable positions, while attempting to sway her from unsupportable positions despite her consistent disruptive micromanagement from counsel table and the witness stand (See e.g. Tr. 10/8/25, pgs. 950; 987). Both Mr. Perez and Mr. Clarke treated this trial with the dignity and respect that it deserved, although the same cannot necessarily be said about their clients.

Finally, the Court has considered the relative merit of the positions taken by the parties during the course of trial. See Odermatt v. Odermatt, 119 AD3d 754 (2d Dept. 2014); see also Lugo v. Torres, 174 AD3d 594 (2d Dept. 2019). While settlement negotiations typically fall outside of the purview of the presiding Judge, in the present case, the parties stated on the trial record that they had come to a mutual resolution regarding the distribution of the parties' bank accounts and life insurance policies (Tr. 9/26/25, pgs. 682-687). Husband's attorney indicated that he would prepare a written stipulation over the lunch break, which he did. However, when the parties returned to Court, Wife reneged on the agreement, claiming that she did not realize that it would result in her having to make a payment to Husband (Tr. 9/26/25, pgs. 739-740). This is just one of several examples where Wife's positions during trial resulted in the accumulation of unnecessary counsel fees and caused delay. Significant delay was also caused by Wife's non-compliance with court orders, as it required Husband to file enforcement and contempt motions that would have otherwise been unnecessary (See "Contempt" above). See Lauria v. Usak-Lauria, 65 AD3d 1017 (2d Dept. 2009); see also Denholz v. Denholz, 147 AD2d 522 (2d Dept. 1989).

After considering both parties' arguments in support of, and in opposition to, Husband's request for counsel fees, and after reviewing the relevant evidence, this Court finds that Wife failed to rebut the presumption of a counsel fee award. The Court further finds that an award of counsel fees is warranted after considering the relative merit of the parties' positions, conduct that resulted in a delay of the proceedings and Wife's non-compliance with court orders which resulted in unnecessary motion practice, and ultimately resulted in a finding of civil contempt. This Court finds that a counsel fee award of $57,660 payable by Wife to Husband's counsel is warranted under the circumstances. See D'Angio v. D'Angio, 171 AD3d 1130 (2d Dept. 2019); see also Brockner v. Brocker, 174 AD3d 567 (2d Dept. 2019); Brantly v. Brantly, 89 AD3d 881 (2d Dept. 2011). This award represented a 50% contribution to the amount of fees adequately supported by billing documentation in the trial record. See Marino v. Marino, 183 AD3d 813 (2d Dept. 2020); see also Hofmann v. Hofmann, 173 AD3d 531 (1st Dept. 2019).

Conclusion

For the detailed reasons set forth above, and in accordance with the testimony of both parties, and the terms of the Preliminary Conference Order, Plaintiff Husband is hereby granted a Judgment of Divorce on the ground that the marriage has broken down irretrievably for a period of six months. See DRL § 170(7). The parties have resolved all issues of custody and parental access on consent.

The Court has made various distributive awards herein, all of which are payable from Wife to Husband. After calculating the total of the various awards herein, the Court finds that Husband is entitled to awards from Wife totaling $1,676,644. This total is inclusive of the counsel fee awards set forth herein but does not include the disposition of the former marital home. The disposition of the marital home shall be handled separately.

By So Ordered Stipulation dated October 17, 2025 (NYSCEF #835), Husband, J.G., expressly waived his right for any distributive awards to be paid to him. Rather, he agreed that all distributive awards that would otherwise be payable to him would be paid directly to his attorney of record "H. Benjamin Perez and Associates P.C." Husband further agreed that any amounts received by his attorney would first be applied to his outstanding legal bill before being distributed to him. Accordingly, the schedule of payments set forth below shall all be payable by Wife to Husband's counsel.

The distribution of the marital home shall occur first. As set forth above, Wife shall have the option to "buy out" Husband's equity. To do so, Wife must advise Husband of her election to utilize her buy out right by providing written notice to Husband and his attorney within 30 days from the issuance of this Decision. This notice must include proof of funds available, or a pre-approval for a mortgage including a "cash out" provision for the amount owed to Husband, to wit, $336,246. Notice shall be proper if sent by overnight mail together with email to Husband and Husband's counsel with a copy filed to NYSCEF. If Wife elects to utilize her right to purchase Husband's equity, and provides timely notice of the same in writing, she shall have an additional period of 60 days, running from the date notice is given, to pay Husband the sum of $336,246 by paying the same directly to Husband's attorney. As set forth above, as part of her buy out option, Wife shall be responsible for removing Husband's name from the existing mortgage and HELOC as she is now wholly responsible for paying the same. Once Husband is paid, and his name is removed from all encumbrances, title of the property shall be deeded to Wife.

If Wife elects not to purchase Husband's interest or fails to provide timely notice or payment to Husband, via his counsel as set forth above, then 15 C* Avenue will be immediately placed on the open market for sale at its present-day market value. To determine its present-day value, Wife shall forward the name of three licensed real estate brokers located in Staten Island to Husband's attorney and Husband shall have the right to select one name from the list. The selected broker shall list the property at its current market value at a price not less than the appraisal offered into evidence at trial. Wife shall make the property available for showing and both parties are directed to comply with any reasonable requests of the broker. Once the house is sold, the proceeds shall be distributed equally (50% each) between the parties with Wife having the right to the credits forth herein and the payment of the current balance of the HELOC being paid from Husband's share of the proceeds. As set forth in the October 17th Order, any payments to Husband shall be made to Husband's counsel.

In addition to the distribution of the former marital home, Wife owes distributive and counsel fee awards totaling $1,676,644. When equitable distribution is appropriate, but its payment would be burdensome, a court may order a distributive award to be payable in installments. See DRL § 236(B)(5)(e); see also Bisca v. Bisca, 108 AD2d 773 (2d Dept. 1985); see also Iarocci v. Iarocci, 98 AD3d 999 (2d Dept. 2012). Accordingly, Wife shall be obligated to pay the combined distributive and counsel fee awards set forth herein in "six equal installment payments, each six months apart." See Wasserman v. Wasserman, 66 AD3d 880 (2d Dept. 2009). Wife shall be obligated to pay Husband, via Husband's attorney, in equal installments of $279,441. The first installment shall be due on March 15, 2027, six months from of the date of this Decision, the second installment shall be due six months after the first due date, and so on until all six installment payments are made. Any missed payment will trigger statutory interest running at the statutory rate of 9% per annum on the unpaid balance due running from the date of the missed payment until payment is made in full. See Spinner v. Spinner, 188 AD3d 748 (2d Dept. 2020). Interest shall only accrue on the balance of the unpaid installment, not on the debt as a whole.

Wife shall be further obligated to maintain a life insurance policy in Husband's favor to secure the future distributive awards payable to him. See DRL § 236 (B)(8)(a); see also Baron v. Baron, 71 AD3d 807 (2d Dept. 2010). The initial policy must be for at least $1,676,644 but may be reduced when installment payments are made to reflect the outstanding balance owed. Wife shall provide proof that the insurance policy exists to Husband within 30 days of the issuance of a Judgment of Divorce. Husband shall be authorized to have access to the policy to ensure that it is being maintained in good standing with all premiums timely paid.

The final post-divorce maintenance award to Husband has been paid in full given the duration of the retroactive award. Wife shall not be entitled to recoupment of amounts paid beyond the duration of the final award given the public policy against recoupment of maintenance "overpayments." See Maria v. Ramadan, 219 AD3d 874 (2d Dept. 2023); see also Matter of McGovern v. McGovern, 148 AD3d 900 (2d Dept. 2017). The temporary award of maintenance currently being paid shall cease immediately upon the issuance of a Short Form Order in conjunction with this Decision. The final award of child support in the amount of $523 a month shall be payable from Husband to Wife on or before the 15th of each month, with the first payment due on or before October 15, 2026.

All motions that have been referred to trial have either been resolved herein or mooted by the issuance of this Decision. To the extent that this Decision does not resolve a specific application raised at trial, or in a motion referred to trial, that application is hereby denied.

Plaintiff Husband' attorney of record, H. Benjamin Perez Esq. is hereby directed to serve and file a Judgment of Divorce in accordance with the terms of this Decision, together with Findings of Fact, Conclusions of Law and all additional supporting documentation. The Judgment, Findings of Fact, and supporting documentation are to be filed within thirty days of the issuance of this Decision.

This constitutes the Decision of the Court after trial, any issue raised during trial that was not specifically addressed herein is hereby denied.

Dated: September 11, 2026

Hon. Catherine M. DiDomenico

Acting Justice Supreme Court

FOOTNOTES

1.   August 11, 2025, and September 22-26, 2025.

2.   See e.g. Santamaria v. Santamaria, 177 AD3d 802 (2d Dept. 2019)

3.    $917,586 in 2020, $1,115,271 in 2021, $354,114 in 2022, $1,111,011 in 2023 and $809,396 in 2024.

4.   The total date of commencement value is $3,766,700 less Wife's purported separate contribution of $835,200 equals a marital equity value of $2,931,000.

5.   Kearny account ending in 6565, Chase account ending in 9101, Chase account ending in 6565, Citizens/Investors account ending in 5693.

6.   The statutory revisions were made effective on January 16, 2016.

7.   The charts that Wife prepared in an attempt to establish the payments she made pendente lite were found to be inadmissible. (Def. Proposed Exs. AAAH & AAAQ).

8.   The Hon. Barbara Panepinto and The Hon. Paul Marrone Jr.

9.   Incorrectly cited by Wife as (Tr. 10/8/25, pg. 47).

10.   The June 17th Order modified the May 7th Order by allowing Wife to deposit the funds into a dedicated bank account in lieu of an attorney escrow account, as she had become self-represented after the issuance of the May 7th Order.

Catherine M. DiDomenico, J.