Opinion
Index No. 67513/2021
01-23-2024
A.F., Plaintiff, v. T.F., Defendant.
RACHEL CICCONE counsel for pltf. DAVID RIFAS counsel for deft.
Unpublished Opinion
RACHEL CICCONE counsel for pltf.
DAVID RIFAS counsel for deft.
HON. ROBERT S. ONDROVIC, J.S.C.
On May 31, June 1, and September 5, 2023, a nonjury trial was held as to certain issues concerning, inter alia, custody, parental access, child support, and equitable distribution. After considering the sworn testimony of the parties, the credibility of the witnesses, and the documents admitted into evidence, the Court makes the following findings of fact and conclusions of law:
Procedural History
The parties were married on March 6, 2007, and are the parents of two unemancipated children born in 2009 and 2011. The plaintiff commenced this action for divorce on December 15, 2021, upon the filing of a summons and verified complaint, alleging an irretrievable breakdown of the marriage for a period six months prior to commencement of the action (see Domestic Relations Law [DRL] § 170[7]), and seeking ancillary relief.
The plaintiff is employed by Fordham University as a senior accountant and the defendant is employed by the New York Public Library as an information assistant. The plaintiff's 2022 income tax return reflects that she earned annual wages of $86,547. The defendant's 2021 Summary of W-2 Statement reflects that he earned $48,391.22. According to each of the parties' 2020 Summary of W-2 Statements, the plaintiff earned $78,028 and the defendant earned $48,188. In 2020, the defendant earned an additional $9,189 from his employment with Manhattan Beer Distributors. In 2019, the defendant earned annual wages of $44,473 from the New York Public Library and $41,026 from Manhattan Beer Distributors. That same year, the plaintiff earned annual wages of $72,149 from Fordham University and an additional $3,250 from Jewish Theological Seminary of America.
The defendant did not provide the Court a copy of his 2022 income tax return.
In February 2022, the plaintiff filed a Family Offense Petition against the defendant alleging that he committed numerous family offenses against her including, inter alia, harassment in the first or second degree, assault in the second or third degree, and strangulation. A temporary order of protection was issued in favor of the plaintiff and against the defendant, ordering the defendant to refrain from communicating with the plaintiff except for matters that solely relate to the children and from committing any criminal offense against the plaintiff.
In May 2022, the plaintiff moved by order to show cause seeking, among other things, temporary sole legal and physical custody of the children, an order directing the defendant to refrain from communicating with the children about the litigation, and awarding her exclusive use and occupancy of the marital residence located at XXXXXXX (hereinafter the martial residence). In a supporting affidavit, the plaintiff alleged that the defendant has created a chaotic environment in the marital residence, has been physically and verbally abusive toward her, and disparages her to the children. She averred that the defendant's erratic and aggressive behavior has increased since he was served with the divorce papers. In an affidavit in opposition, the defendant denied discussing the divorce with the children and being abusive to the plaintiff or the children. He claimed that the plaintiff is manipulative and interferes with his access and involvement with the children. The defendant asserted that he does not have alternative housing and has limited financial means.
Thereafter, a neutral real property appraiser was appointed by the Court to conduct an appraisal and identify the fair market value of the marital residence. The Court also appointed an attorney for the children (hereinafter the AFC).
In June 2022, on the return date of the motion, the Court, after considering the best interests of the children and the toxic environment in which they are residing, ordered the defendant to vacate the marital residence within 30 days and awarded the defendant a $10,000 advance against his share of equitable distribution.
The defendant's counsel's motion to be relieved was granted and in February 2023, the Court appointed counsel to represent the defendant with respect to the issue of custody pursuant to Judiciary Law § 35(8).
The Trial
A trial was held in this matter on May 31, 2023, June 1, 2023, and September 5, 2023. Testimony was taken related to the issue of custody on May 31, 2023, June 1, 2023, and during the morning session of September 5, 2023.
At trial, the defendant testified that he left the marital residence on July 14, 2022, and his last overnight visit with the children was in January 2023. He stated that he is currently staying at the home of a friend in Harlem and has been "couch surfing" since December 2022. The defendant testified that he requires permission from his friend in order for the children to stay overnight. He acknowledged that as of the time of trial, he had not established a residence that is appropriate for the children.
The defendant testified that between 2015 and 2020, he worked two jobs. He stated that in addition to his full-time employment at the New York Public Library, where he has worked since 1995, he also worked at UPS, Kohl's, Yonkers Casino Raceway, and Manhattan Beer Distributors. He denied that the reason he resigned from Yonkers Casino Raceway was due to misconduct. The defendant stated that he stopped working for Manhattan Beer Distributors in March 2020.
The defendant testified that he had an affair in 2011, and asked the plaintiff to accompany him to a court proceeding in the Bronx involving an "allegation" made against him by his paramour. He testified that in 2017, he was arrested related to allegations made against him by a woman with whom he had a "fling." When asked whether he was ever directed to pay restitution as a result of a "criminal plea," the defendant replied, "not to my knowledge." The defendant acknowledged that he spent money on the women with whom he was having affairs.
Transcript 5/31/23 at 14
id. at 16
id. at 12
The defendant testified that he first learned that the children were enrolled in therapy at Northeast Family Services (hereinafter Northeast) in November 2022. He acknowledged that he received an email from Northeast on November 18, 2022, advising that the children were doing well and liked their therapists. The defendant also acknowledged that on November 21, 2022, he sent an email to the director of Northeast wherein he stated that the plaintiff was a "liar" and "manipulating" the court system. When asked whether "this is the first time you're hearing that your interference with the therapy caused these children to be discharged from therapy," the defendant responded that he received a direct call from Northeast.
Transcript 6/1/23 at 13
The defendant acknowledged that he was present in court on January 13, 2023, when the Court ordered the children to return to therapy at Northeast and that neither party should interfere with the children's services. When asked whether he contacted Northeast immediately after the appearance and "continue to interfere with the therapy," he stated that he could not recall. The defendant also stated that he could not recall when asked whether he told the children that the plaintiff cannot take away a cell phone that he had purchased for them and whether he called the police as a result of an incident involving the phone.
id. at 55
On cross-examination by the defendant's attorney, the defendant testified that after he left the marital residence in July 2022, he stayed in hotels and at his mother's home in Queens until December 2022, when he began staying with a friend in Harlem. According to the defendant, in March 2020, the parties discussed that he would resign from his job with Manhattan Beer Distributors in order to provide "guidance" to the children, who were learning remotely at that time.
id. at 65
The defendant testified that he has a wonderful relationship with the children and they are bonded. He stated that since leaving the marital residence, he has visited the children every weekend and texts and calls them every day. The defendant acknowledged that his daughter calls him "on a regular basis" after 11:00 p.m. on a weeknight.
id. at 117
The defendant testified that he graduated from Lehman College and attended a graduate program in business management at Fordham University, but did not graduate. He stated that he is not looking for a second job because he is focusing "on what's most important," meaning his health. The defendant testified that he is diabetic and suffers from a sciatic nerve and heart palpitations. He stated that he was diagnosed with bipolar disorder when he was 19 years old, it does not impact his ability to care for the children or his employment, and speaks to a psychiatrist monthly. The defendant testified that he was never convicted of a crime in connection with his arrests in 2011 and 2017.
id. at 74-75
With regard to his living situation, the defendant testified that his plan is to obtain housing close to the children in "lower Westchester." However, he later testified that he was also considering finding housing in Harlem, indicating that he has extended family that live in the area. The defendant stated that he has "access to cars" and "a couple of friends to help out." The defendant acknowledged that the children attend school in Harrison and are thriving academically. He stated that he is capable of communicating with the plaintiff to advance the best interests of the children. The defendant testified that he was not involved in the decision to enroll the children in therapy at Northeast and was disappointed that the plaintiff did so unilaterally, but agreed that the children are in need of therapeutic services. He stated that it was his position that the plaintiff was controlling the situation at Northeast.
id. at 91
id. at 108
On cross examination by the AFC, the defendant testified that he is seeking a 50/50 access schedule with the children. He acknowledged that given his current living arrangements, he will need assistance from his family in order to comply with that schedule. Although the defendant stated that he and the plaintiff are capable of making major decisions concerning the children in a timely and efficient manner, he acknowledged that they never agreed upon a treating therapist for the children since the issue was raised in March 2022. The defendant testified that he agrees that the children should remain in the Harrison school district and continue seeing their current pediatrician and dentist. He stated that he was able to agree with the plaintiff on enrolling the parties' son in soccer and summer programs for the children.
The plaintiff's sister, V.F. (hereinafter V.F.), testified that she resided with the parties in the marital residence for a one-year period beginning in December 2019. She stated that she provided financial assistance to the parties and contributed toward the payment of their son's private school tuition. V.F. asserted that the plaintiff was largely responsible for the "financial upkeep of the family" and the defendant worked two jobs for a period of time. She contended that the plaintiff was the primarily caretaker of the children and the defendant "was very rarely involved." V.F. stated that on one occasion, the defendant "charged" at her, claiming that she "ruined [his] marriage" and criticized her for being a single mom.
id. at 127
id. at
id. at 139-140
V.F. testified that she offered to the plaintiff to contribute toward the payment of a home in a good school district for the children. She stated that the defendant did not accompany her and the plaintiff when they visited the marital residence and decided to move forward with the purchase. V.F. testified that she was present at the closing and co-signed the mortgage documents. She stated that she gifted $52,888 to the plaintiff for the down payment of the marital residence. V.F. asserted that in total, she gifted more than $201,227.83 to the plaintiff, which was used toward renovations and improvements to the marital residence. According to V.F., she was not sure if the defendant was moving into the marital residence because the parties were having "pretty serious marital issues" at that time. She stated that in around March 2023, she paid $17,500 directly to a contractor to replace the roof of the marital residence after the insurance company gave notice that the policy would not be renewed if the work was not completed.
id. at 158
When asked why she gifted such substantial sums of money to the plaintiff, V.F. explained that the plaintiff paid for her rent during her last year of law school and helped her secure a $12,000 loan. V.F. insisted that it was never her intention to provide any gift to the defendant. She stated that she was aware that the defendant had incurred debt resulting from gambling. V.F. acknowledged that while she was residing with the parties, she observed the defendant to be kind, patient, and loving with the children. She stated that she entrusted the defendant to watch her own son on occasion and the defendant treated him with kindness. V.F. testified that the children are well-cared for by the plaintiff.
The plaintiff testified that she is currently employed as a senior accountant at Fordham University. She stated that she has always been the primary caretaker of the children, was awarded exclusive use and occupancy of the marital residence on July 17, 2022, and the children have resided with her continuously at the home since that date. The plaintiff testified that she does not believe the parties can effectively co-parent the children. She emphasized that the children are in need of therapy, the Court issued an order directing the children to engage in therapy at Northeast, and the defendant interfered with those services. The plaintiff noted that due to the defendant's behavior, Northeast refused to continue treating the children. She testified that the defendant refused to cooperate in renewing their son's passport so she can travel with the children to Nevis to visit her terminally ill mother and she was forced to seek Court intervention to gain his compliance. The plaintiff stated that although she was ultimately successful in renewing their son's passport, at the passport appointment, the defendant caused "[c]haos" and told the receptionist that "he did not approve of the children traveling." She noted that the defendant took the children during his weekend access time to a new ophthalmologist without her knowledge or consent, notwithstanding that the children already had an eye doctor that they had been seeing since birth. The plaintiff also testified that she is unable to supervise the children's use of their cell phones since "the police get[] called because it is in [the defendant's] account."
Transcript 9/17/23 at 13
id. at 18
The plaintiff testified that the defendant should not be awarded physical custody of the children because he lacks structure and routine. She stated that the defendant is unable to adhere to the access schedule and does not communicate to her what his plans are with the children. The plaintiff asserted that she can provide a stable life for the children and is better able than the defendant to make decisions in the best interests of the children. She insisted that she would consult with the defendant as to all major matters before making a decision and would foster a loving relationship between him and the children. The plaintiff testified that she intends to continue residing in the marital residence and the children can remain in their current schools. She emphasized that since July 2022, she has been financially supporting the children without any contribution of child support payments from the defendant.
On cross examination, the plaintiff acknowledged that the children are enrolled in therapy once a week through the Harrison Youth Council and the defendant has not prevented them from attending. The plaintiff stated that the defendant slept a lot, but acknowledged that he was present in the children's lives and attended medical appointments and soccer games. She admitted that she blocked the defendant from texting or calling her and that he was limited to communicating with her via email. The plaintiff noted that he has sent her "hundreds" of emails concerning the children. She indicated that the defendant did not have the children's best interests in mind when he took them to a new ophthalmologist without consulting her. The plaintiff acknowledged that the defendant has consistently exercised his visitation with the children, but has not adhered to "the specific times." She acknowledged that the children and the defendant have a loving relationship, but stated that his relationship with his mother and sisters during the marriage was volatile.
id. at 32
id. at 46
On cross examination by the AFC, the plaintiff testified that the marital residence is a comfortable home, the children have their own bedrooms, and they do well in school. She stated that if the defendant is able to secure a permanent residence in Westchester, she would be agreeable to a 50/50 access schedule. The plaintiff insisted that she would seriously consider the defendant's opinions before making a decision concerning the children.
Counsel each gave a closing statement on the issue of custody. The plaintiff's counsel stated that the parties have been living separate for over a year, the plaintiff remains the primary caregiver of the children, and the defendant has failed to obtain suitable housing for the children. She argued that the defendant has actively interfered with every major decision related to the children since the commencement of this action and the continued deterioration of the parties' relationship renders a joint custodial arrangement not feasible. The plaintiff's counsel asserted that the evidence supports an award of sole legal and physical custody of the children to the plaintiff.
The defendant's attorney argued that the evidence supports an award of joint legal custody, highlighting that the defendant has a meaningful and significant relationship with the children and is actively involved in their lives. He asserted that a shared access schedule should commence immediately once the defendant begins residing in Harrison or lower Westchester.
The AFC indicated that the children, who were then 14 and 11 years old, wish to have a 50/50 access schedule with the parties, but the defendant's inability to establish a residence in over a year has presented a problem. She stated that if the plaintiff is awarded final decision making authority, the plaintiff must genuinely consider the defendant's opinions.
Following the closing statements, the defendant's court-appointed attorney and the AFC were dismissed, and the plaintiff's counsel called the defendant as a witness to begin the financial trial.
The defendant testified that he is currently employed by the New York Public Library and earns $52,000 per year. He testified that there were times during the marriage when he was working two jobs and the most he ever earned in a year was $90,000. The defendant stated that he is now unable to work two jobs because it would prevent him from spending time with the children. He asserted that he has not paid any child support to the plaintiff, but has covered the children's expenses during his access time.
The defendant acknowledged that he is not named on the title to the marital residence or the mortgage documents. He claimed that in 2017, his paychecks were deposited in the parties' joint bank account and that those funds were used to pay the down payment on the marital residence and to pay down the mortgage. The defendant asserted that Veronique's testimony concerning the down payment was false. He testified that he has withdrawn money from his retirement accounts to pay for the parties' living expenses and not for gambling or paramours. The defendant acknowledged that he gambled "small amount[s] of money" during the marriage, but claimed that he stopped in 2011.
id. at 85
The plaintiff testified that the defendant was not involved in the purchase of the marital residence and was not named on the mortgage because he has bad credit. She insisted that the defendant did not contribute to the mortgage payments, stating that he deposited biweekly checks in the amount of $500 in a joint bank account, which was used to pay childcare expenses and utilities. The plaintiff asserted that the defendant was "an excessive, compulsive gambler" and "[s]pent most of his time at the casino." She stated that the defendant has made no contributions toward the mortgage payments since he left the marital residence. The plaintiff asserted that the parties currently do not have any joint bank accounts.
id. at 92
The plaintiff testified that as of the date of commencement, her retirement account had a value of approximately $330,000, and a premarital value between $60,000 and $80,000. She asserted that the defendant should have a commensurate retirement account having worked two jobs, but does not due to penalties associated with his withdrawals. The plaintiff contended that the defendant's testimony that she was aware that he was withdrawing money from his retirement account is false. She stated that the funds withdrawn by the defendant were not used toward the parties' living expenses.
According to the plaintiff, the defendant worked two jobs most of the marriage "because he had lots of debt" and can "easily" earn an annual salary of $90,000. She insisted that the defendant's income from his primary job amounted to approximately $500 per paycheck, which was deposited in the parties' joint bank account, and the monies earned by the defendant from his second job was used to pay off his debts. The plaintiff stated that she helped the defendant pay off his premarital debt and he "created more" stemming from his affairs and "cash advances in the casino." The plaintiff testified that she is seeking an award of counsel fees because the defendant is responsible for delaying these proceedings and refused to enter into a reasonable settlement and avoid trial.
id. at 96-97
id. at 109
Conclusions of Law
Grounds for Divorce
In the verified complaint, the plaintiff alleged an irretrievable breakdown of the marriage for a period six months prior to commencement of the action (see DRL § 170[7]). Although two of the defendant's prior attorneys filed a notice of appearance, no answer was ever filed with the Court. In addition, in the Preliminary Conference Stipulation filed on May 5, 2022, the parties indicated that the grounds for divorce is resolved, however, a separate stipulation with respect to that issue was never provided to the Court.
Under these circumstances, the Court grants the plaintiff a divorce on the ground set forth in DRL § 170(7).
Custody
The paramount concern in any custody determination is the best interests of the child, under the totality of the circumstances (see Eschbach v. Eschbach, 56 N.Y.2d 167, 171 [1982]; Friederwitzer v. Friederwitzer, 55 N.Y.2d 89, 95-96 [1982]). In determining the best interests of the child, the factors to be considered include which alternative will best promote stability, the available home environments, the past performance of each parent, each parent's relative fitness, including ability to guide the child and provide for the child's overall well-being, and the child's desires (see Eschbach v. Eschbach, 56 N.Y.2d at 172-173; Matter of Hart v. Hart, 218 A.D.3d 582, 583 [2d Dept. 2023]).
The Court finds that the children's best interests would be served by awarding the plaintiff residential custody of the children and awarding the parties joint legal custody of the children, with the plaintiff having final decision-making authority for all major decisions including, but not limited to, medical, health, therapeutic, psychiatric, extracurricular activities, summer camp/summer programs, religion, education, and tutoring.
In reaching this determination, the Court has considered the evidence in the record of the defendant exercising poor judgment, lacking insight into his behavior, and demonstrating an inability or unwillingness to work cooperatively with the plaintiff with respect to major decisions concerning the children. In particular, the testimony and evidence admitted at trial demonstrated that the defendant was unnecessarily difficult when asked to agree on the selection of a mental health provider for the children, was uncooperative in securing the children's passports so that they can visit their terminally ill maternal grandmother, unilaterally made changes to the children's medical provider, and interfered with the children's treatment at Northeast by threatening a clinician. The plaintiff also credibly testified that the defendant has a history of allegations being made against him by his previous paramours that resulted in criminal proceedings and that he has, at times, inappropriately involved the children in the litigation.
Nevertheless, it is abundantly clear to the Court that the defendant loves the children, cares deeply about their well-being, enjoys a very close relationship with them, and wants to remain actively involved in their lives. The Court has also considered the wishes of the children, who at the time of their in camera interviews, were 14 and 11 years old and expressed their strong desire to spend more time with the defendant. While the record demonstrates that the plaintiff is more able than the defendant to promote stability for the children, provide a suitable home, and provide for their overall well-being, the Court does not think it is appropriate at this time to award the plaintiff sole legal custody of the children, thereby precluding the defendant from having his position concerning major decisions affecting the children from being taken into consideration.
The parties shall seek mutual agreement on major decisions affecting the children with a view toward arriving at a decision calculated to promote the children's best interests. Consultation between the parties regarding a major decision shall be initiated by an email from one party to the other party. The subject line of the email shall be "Major Decision" and shall not be part of any other email chain. The initiating party shall set forth the details regarding the major decision(s) at issue and the initiating party's position in connection therewith. The party who receives the initiating email shall promptly respond in writing by email no later than 72 hours after it was sent by the initiating party and shall set forth his/her position regarding the major decision(s) at issue. If the initiating party is the plaintiff, and she does not receive a written response from the defendant within 72 hours, the defendant shall be deemed to have waived his right to consult with the plaintiff prior to the major decision being implemented. The plaintiff, who hereunder was awarded final decision-making authority, must notify the defendant in writing by email of the decision and its implementation, as well as any other relevant details. Neither party shall use this directive as a basis to send unnecessary and unproductive emails to the other for the purpose of harassing, alarming or annoying.
Each party retains the right to bring before a Court of competent jurisdiction any issue regarding a major decision involving the children. Absent a stay from a Court of competent jurisdiction, the plaintiff's decision may be implemented and the defendant shall not have the right or authority to delay, block, or interfere with the plaintiff's implementation of her decision. If either party seeks judicial review or intervention, the prevailing party in such action or proceeding may be entitled to receive from the losing party his or her reasonable counsel fees and all costs and disbursements resulting from or made necessary by such request for judicial relief.
Furthermore, the Court cautions that neither party shall disparage the other in the presence of the children or otherwise interfere with the children's relationship with the other parent by making demeaning and negative statements about that parent to the children.
With respect to the issue of residential custody, the children have been residing exclusively with the plaintiff in the marital residence since June 2022, and are thriving and excelling academically. Conversely, the defendant has not secured a permanent living arrangement, which has impacted his ability to exercise overnight visitation with the children during the pendency of this divorce action. Until such time as the defendant obtains suitable housing and accommodations for the children, the defendant shall have liberal access with the children during the day on weekends and after school, as agreed upon by the parties, so long as access does not interfere with the children's activities and schedules. Once the defendant obtains suitable housing and accommodations for the children, the parties shall alternate weekend access from Friday through Sunday and additional access during the weekdays as agreed upon by the parties.
Although the plaintiff sought an award of maintenance in her verified complaint, there is no indication in the record that the defendant ever made such a request.
"The amount and duration of spousal maintenance is an issue generally committed to the sound discretion of the trial court and each case is to be resolved upon its own unique facts and circumstances" (Silvers v. Silvers, 197 A.D.3d 1195, 1199 [2d Dept. 2021]; see Alam v. Alam, 168 A.D.3d 896, 896 [2d Dept. 2019]). "'The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting'" (Sansone v. Sansone, 144 A.D.3d 885, 886 [2d Dept. 2016], quoting Sirgant v. Sirgant, 43 A.D.3d 1034, 1035 [2d Dept. 2007]).
The parties were married for approximately 14 years when this divorce action was commenced. At the time of trial, the plaintiff was 51 years old and the defendant was 48 years old. The plaintiff has been steadily employed by Fordham University and based on her most recent income tax return, earned annual wages of $86,547. The defendant has been employed by the New York Public Library since 1995, and up until March 2020, has historically worked two jobs in order to contribute toward the parties' living expenses and pay off his significant debts, some of which was amassed by gambling. Although the defendant stated that he is not seeking a second job because he wants to focus on his health and the children, he testified that his mental health issues and physical ailments do not impact his employment and ability to parent. The defendant's 2021 Summary of W-2 Statement, which was the most recent documentation submitted reflecting his annual wages, indicates that he earned $48,391.22, however, he testified that he currently earns approximately $52,000 per year. When the defendant was working two jobs in 2019, he earned annual wages totaling $85,499. Under these circumstances, and taking into consideration the defendant's health, the impact his access schedule with the children will have on his ability to work a second job, and his voluntary decision not to seek out additional employment opportunities, the Court finds that an imputation of additional income to the defendant for purposes of calculating maintenance and child support is appropriate to the extent of imputing the amount of only $10,000, which is commensurate with what he earned when he worked a second job for a short duration in 2020, for a total amount of $62,000.
As this action was commenced after January 23, 2016, it is governed by amendments to the calculation of post-divorce maintenance set forth in Part B of section 236 of the DRL (see L 2015, ch 269, § 4; Mahoney v. Mahoney 197 A.D.3d 638, 639 [2d Dept. 2021]). Upon performing the calculations set forth in DRL § 236(B)(6)(c)(2), the Court finds that the presumptive amount of maintenance is $0 per month and an award in favor of either party is not warranted.
"The Child Support Standards Act 'sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling'" (Spinner v. Spinner, 188 A.D.3d 748, 751 [2d Dept. 2020], quoting Matter of Freeman v. Freeman, 71 A.D.3d 1143, 1144 [2d Dept. 2010]; see DRL § 240[1-b][c]). "'Where the combined parental income exceeds that ceiling, the court, in fixing the basic child support obligation on income over the ceiling, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1-b)(f), or to apply the statutory percentages, or to apply both'" (Spinner v. Spinner, 188 A.D.3d at 751, quoting Candea v. Candea, 173 A.D.3d 663, 664 [2d Dept. 2019]; see DRL § 240[1-b][c][3]). "'The court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap'" (Spinner v. Spinner, 188 A.D.3d at 751, quoting Candea v. Candea, 173 A.D.3d at 665).
For purposes of calculating child support, the plaintiff's adjusted CSSA income is $79,926.16, the defendant's adjusted CSSA income is $57,257, and the parties' combined parental income equals $137,183.16 (see DRL § 240[1-b][c][1]), of which the plaintiff's income comprises 58% and the defendant's income 42%. Multiplying the combined parental income up to the statutory cap of $163,000 by the appropriate child support percentage of 25% for two children yields an annual parental child support obligation of $34,295.79, of which 42% is to be paid annually by the defendant, or $1,192.85 per month (see DRL § 240[1-b][c][2]).
Such payments are to be paid by the defendant on the first day of the first full month after the date of this Decision After Trial. Upon emancipation of each child, child support shall be recalculated.
Furthermore, it is well settled that a party's child support obligations commence, and are retroactive to, the date the application for child support was first made, which, in this case, was December 15, 2021, the date of the plaintiff's verified complaint (see Shvalb v. Rubinshtein, 204 A.D.3d 1059, 1063 [2d Dept. 2022]; Posson v. Posson, 243 A.D.2d 884, 885 [3d Dept. 1997]). Here, however, it is undisputed that the defendant continued to reside in the marital residence until July 2022, when the Court granted the plaintiff's application for exclusive use and occupancy of the home. Under these circumstances, the plaintiff is awarded retroactive child support from July 2022 to date (19 months) in the amount of $22,664.15.
"The obligations for health care, child care, and education[] expenses are commonly referred to as add-on expenses" (Cimons v. Cimons, 53 A.D.3d 125, 130 [internal quotation marks omitted]). Each party shall be responsible for their own child care expenses. Uncovered, unreimbursed health care expenses shall be prorated in the same proportion or percentage as each parent's income bears to the combined parental income, that is, 58% to the plaintiff and 42% to the defendant. The plaintiff is directed to continue to maintain health insurance for the parties' children.
Neither party requested the Court to address the tax deductions to which they may be entitled for the children. Nevertheless, the Court addresses the issue to avoid any future disputes regarding which party is entitled to the deductions. The parties shall split the number of children to be taken as a deduction during the years that an even number of children are eligible for a deduction. When there is only one child eligible to be taken as a deduction, the plaintiff shall be entitled to the deduction in the first such year, and the parties shall alternate until no children are eligible to be taken as a deduction. The defendant shall be entitled to the aforementioned tax deductions only if he is current on his child support obligations on the first day of the year for which the deduction is to be declared.
Equitable Distribution
Equitable distribution of marital property does not necessarily mean equal distribution (see Santamaria v. Santamaria, 177 A.D.3d at 804; Culen v. Culen, 157 A.D.3d 926, 929 [2d Dept. 2018]). Rather, "[t]he equitable distribution of marital assets must be based on the circumstances of the particular case and the consideration of a number of statutory factors" (id.; see Domestic Relations Law § 236[B][5][d]; Shvalb v. Rubinshtein, 204 A.D.3d 1059, 1061 [2d Dept. 2022]). "Those factors include: the income and property of each party at the time of marriage and at the time of commencement of the divorce action; the duration of the marriage; the age and health of the parties; the loss of inheritance and pension rights; any award of maintenance; any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of marital property by the party not having title; and any other factor which the court shall expressly find to be just and proper" (Taylor v. Taylor, 140 A.D.3d 944, 945-946 [2d Dept. 2016]; see Domestic Relations Law § 236[B][5][d]).
Here, the largest asset acquired during the marriage is the marital residence, which was purchased for the amount of $460,750 in May 2017, and encumbered by a mortgage in the principal amount of $368,000. It is undisputed that the marital residence is solely owned by the plaintiff, as evidenced by the deed, and the plaintiff is listed as the sole insured under the homeowner's insurance policy. The mortgage documents subpoenaed from Wells Fargo list the plaintiff as the mortgagor and V.F. as the co-mortgagor.
The evidence in the record includes a check that was issued by V.F. to the seller on the date of the closing in the amount of $52,880.10, and an unnotarized letter signed by V.F. stating that she gifted the total amount of $201,227.83 to the plaintiff toward the purchase and renovation of the marital residence. In addition to the letter, copies of receipts and bank statements were admitted into evidence substantiating the amounts that V.F. had gifted to the plaintiff.
The Court finds, based on the unrefuted credible testimony of the plaintiff and V.F. and the documentary evidence adduced at trial, that the plaintiff satisfied her burden of demonstrating that the money given by V.F. to her during the marriage was intended as a gift and is not marital property (see DRL § 236[B][1][d][1]; Noble v. Noble, 78 A.D.3d 1386, 1389 [3d Dept. 2010]). Furthermore, since the plaintiff contributed monies toward the acquisition and renovation of the marital residence derived from separate property, she is entitled to a credit for that contribution (see Field v. Fields, 15 N.Y.3d 158, 166 [2010]; Ferrante v. Ferrante, 186 A.D.3d 566, 568 [2d Dept. 2020]). The plaintiff' met her burden of establishing the value of the separate property contribution, to wit, $201,227.83, by tracing the source of the funds to monetary gifts given to her by V.F. (see Alliger-Bograd v. Bograd, 180 A.D.3d 975, 977 [2d Dept. 2020]). Furthermore, the plaintiff demonstrated that during the pendency of this action, V.F. loaned her $17,500 to replace the roof on the marital residence after she received notice that her homeowner's insurance would not be renewed based on the poor condition of the roof.
It is also undisputed that the plaintiff, alone, has made all payments toward the mortgage since the commencement of this action and is entitled to a credit of 50% of the reduction in the mortgage principal made during the pendency of the action (see Lieberman-Massoni v. Massoni, 215 A.D.3d 656, 661-662 [2d Dept. 2023]; Turco v. Turco, 117 A.D.3d 719, 722 [2d Dept. 2014]).
The marital residence was appraised as having a value of $640,000 as of June 22, 2022. As of the date of commencement, the principal balance of the mortgage was $334,800.90. Even assuming that the defendant is entitled to a one-half share in the equity of the marital residence ($152,599.55), which the Court finds is unlikely given his minimal direct and indirect contributions, based on the credits to which the plaintiff demonstrated she is entitled to receive, which exceeds $217,000, there is no remaining equity to be distributed to the defendant.
The plaintiff shall retain exclusive use and occupancy of the marital residence, which she has enjoyed since July 2022, and shall retain sole ownership of the marital residence free and clear of any claimed interest by the defendant. The plaintiff, as the sole owner of the marital residence, shall retain responsibility for repayment of the mortgage and shall hold the defendant harmless from any and all payments due under the mortgage.
"[P]ension and retirement benefits belonging to either spouse attributable to employment during the marriage constitute marital property subject to equitable distribution upon divorce" (McGrath v. McGrath, 261 A.D.2d 369, 370 [2d Dept. 1999]). The record demonstrates that the plaintiff has a TIAA retirement account with a date of commencement value of $345,927.51. At the time of the marriage, the account had a value of $60,587.85. The record further demonstrates that the defendant took out a loan against his NYSLRS pension, which as of March 2021, had a member contribution balance of $18,804.28 and a loan balance of $11,634.49.
Each party shall retain ownership of their respective pension and retirement account free and clear of any claimed interest by the other party, except that the plaintiff shall transfer to the defendant the amount of $52,937.85, which represents a 30% share of the marital portion of her TIAA account, less the advance on equitable distribution of $10,000 to the defendant and the $22,664.15 of retroactive child support that remains due and owing by the defendant. Each party shall retain any bank account held solely in his or her name, and shall be responsible for any debt in his or her name. The Court's determination takes into account the plaintiff's unrefuted testimony that the defendant contributed only $500 biweekly toward the parties' living expenses, and used income from his second job solely to pay down his personal debts resulting from gambling and spending money on paramours. In addition, the defendant failed to offer any credible proof that the monies he borrowed against his retirement account was used toward marital expenses.
Finally, the plaintiff's request for an award of counsel fees is denied inasmuch as she failed to submit any evidence at trial, such as detailed billing records and invoices from her attorney, concerning the amount of counsel fees incurred by her during this action (see Massina v. Massina, 149 A.D.3d 927, 928 [2d Dept. 2017]).
All other claims for relief not specifically addressed herein are denied.
Accordingly, it is hereby, ORDERED that the plaintiff is granted a divorce on the ground set forth in DRL § 170(7); and it is further, ORDERED that the plaintiff is awarded residential custody of the children, with liberal parental access to the defendant during the day on weekends and after school, as agreed upon by the parties, so long as access does not interfere with the children's activities and schedules. Once the defendant obtains suitable housing and accommodations for the children, the parties shall alternate weekend access from Friday through Sunday and additional access during the weekdays as agreed upon by the parties; and it is further, ORDERED that the parties are awarded joint legal custody of the children, with the plaintiff having final decision-making authority for all major decisions including, but not limited to, medical, health, therapeutic, psychiatric, extracurricular activities, summer camp/summer programs, religion, education, and tutoring; and it is further, ORDERED that the parties shall seek mutual agreement on major decisions affecting the children with a view toward arriving at a decision calculated to promote the children's best interests. Consultation between the parties regarding a major decision shall be initiated by an email from one party to the other party. The subject line of the email shall be "Major Decision" and shall not be part of any other email chain. The initiating party shall set forth the details regarding the major decision(s) at issue and the initiating party's position in connection therewith. The party who receives the initiating email shall promptly respond in writing by email no later than 72 hours after it was sent by the initiating party and shall set forth his/her position regarding the major decision(s) at issue. If the initiating party is the plaintiff, and she does not receive a written response from the defendant within 72 hours, the defendant shall be deemed to have waived his right to consult with the plaintiff prior to the major decision being implemented. The plaintiff, who hereunder was awarded final decision-making authority, must notify the defendant in writing by email of the decision and its implementation, as well as any other relevant details. Neither party shall use this directive as a basis to send unnecessary and unproductive emails to the other for the purpose of harassing, alarming or annoying; and it is further, ORDERED that each party retains the right to bring before a Court of competent jurisdiction any issue regarding a major decision involving the children. Absent a stay from a Court of competent jurisdiction, the plaintiff's decision may be implemented and the defendant shall not have the right or authority to delay, block, or interfere with the plaintiff's implementation of her decision. If either party seeks judicial review or intervention, the prevailing party in such action or proceeding may be entitled to receive from the losing party his or her reasonable counsel fees and all costs and disbursements resulting from or made necessary by such request for judicial relief; and it is further, ORDERED that neither party shall disparage the other in the presence of the children or otherwise interfere with the children's relationship with the other parent by making demeaning and negative statements about that parent to the children; and it is further, ORDERED that the defendant shall pay child support to the plaintiff in the amount of $1,192.85 per month, to be paid by the defendant on the first day of the first full month after the date of this Decision After Trial. Upon emancipation of each child, child support shall be recalculated; and it is further, ORDERED that the plaintiff shall maintain health insurance for the children; and it is further, ORDERED that each party shall be responsible for their own child care expenses. The parties shall share in the cost of the children's uncovered, unreimbursed health care expenses on a pro rata basis. The plaintiff shall be responsible for 58% of those expenses and the defendant shall be responsible for 42% of those expenses; and it is further, ORDERED that the parties shall split the number of children to be taken as a deduction during the years that an even number of children are eligible for a deduction. When there is only one child eligible to be taken as a deduction, the plaintiff shall be entitled to the deduction in the first such year, and the parties shall alternate until no children are eligible to be taken as a deduction. The defendant shall be entitled to the aforementioned tax deductions only if he is current on his child support obligations on the first day of the year for which the deduction is to be declared; and it is further, ORDERED that the plaintiff shall retain exclusive use and occupancy of the marital residence and shall retain sole ownership of the marital residence free and clear of any claimed interest by the defendant. The plaintiff, as the sole owner of the marital residence, shall retain responsibility for repayment of the mortgage and shall hold the defendant harmless from any and all payments due under the mortgage; and it is further, ORDERED that each party shall retain ownership of their respective pension and retirement account free and clear of any claimed interest by the other party, except that the plaintiff shall transfer to the defendant the amount of $52,937.85, which represents a 30% share of the marital portion of her TIAA account, less the advance on equitable distribution of $10,000 to the defendant and the $22,664.15 of retroactive child support that the Court determined was due and owing by the defendant to the plaintiff; and it is further, ORDERED that each party shall retain any bank account held solely in his or her name, and shall be responsible for any debt in his or her name; and it is further, ORDERED that the plaintiff's request for an award of counsel fees is denied; and it is further, ORDERED that all other prayers for relief not specifically addressed herein are denied; and it is further, ORDERED that the plaintiff shall settle Findings of Fact and Conclusions of Law, a Judgment of Divorce, and all other documents necessary to allow the Court to enter Judgment in accordance with this Decision After Trial, on at least five (5) days' notice, within thirty-five (35) days of the date hereof. Failure to timely settle the Findings of Fact and Judgment of Divorce may result in this action being dismissed, or other appropriate sanctions.
The foregoing constitutes the decision and order of this Court.