Opinion
471/2012
11-15-2017
A.P., Plaintiff, v. F.L., Defendant.
Attorney for Plaintiff: Plaintiff proceeded pro se Attorney for Defendant: Patricia Lynch
Attorney for Plaintiff: Plaintiff proceeded pro se Attorney for Defendant: Patricia Lynch Elisa S. Koenderman, J.
After a consolidated matrimonial and family offense trial as well as an inquest on grounds, the court grants Plaintiff a judgment of divorce; awards Defendant an order of protection; awards Defendant sole legal custody and physical custody of the children; denies Plaintiff visitation; awards Defendant maintenance and child support; appoints a receiver to sell the marital residence; and equitably distributes the net proceeds of the sale thereof.
Procedural History
Plaintiff filed the instant action for divorce on January 9, 2012. On July 24, 2012, the court granted Defendant a temporary limited order of protection against Plaintiff. On August 30, 2012, Plaintiff was arrested and charged with criminal contempt and related offenses. Both the divorce and criminal actions then were transferred to the Integrated Domestic Violence Part ["IDV"]. Plaintiff subsequently was arrested and charged with criminal contempt and related offenses on three additional occasions in January 2013, February 2013 and April 2013. These cases also were transferred to IDV where the criminal actions were consolidated and the charges were reduced for a bench trial. A different judge acquitted Plaintiff on January 30, 2015.
The order directs Plaintiff, among other things, to refrain from assaulting, harassing, or committing any other offense against Defendant.
On February 15, 2015, Defendant filed a family offense petition for the February 2013 incident, which was transferred to IDV to join the divorce action.
On March 13, 2017, Plaintiff filed a note of issue and certificate of readiness in the divorce action.
On March 29, 2017, the court consolidated Defendant's family offense petition with the divorce action.
On July 11, 2017 and July 12, 2017, the court conducted an inquest on grounds and a trial on all other issues in the divorce action as well as on the family offense petition.
On July 14, 2017, the court conducted a Lincoln hearing at which the parties' children testified.
Three different attorneys have appeared on Plaintiff's behalf in the divorce action. On August 20, 2014, the court granted his last attorney's request to be relieved due to a breakdown in communication. Thereafter, Plaintiff represented himself pro se. Although four different attorneys also have appeared on Defendant's behalf, counsel has represented her throughout the proceedings.
Plaintiff testified at trial that he retained an unidentified lawyer as a "consultant;" however, no attorney filed a notice of appearance on his behalf.
The Inquest
Plaintiff testified that he and Defendant married on May 23, 1992 in Queens County; that they conceived two children, S.P. [D.O.B. 10/23/99] and N.P. [D.O.B 3/26/05]; that his relationship with Defendant had irretrievably broken down for at least six months before he filed for divorce; and that he was not seeking maintenance or child support. The Trial Plaintiff's Case
John P's Testimony
John P is Plaintiff's brother. Before the divorce action began, Plaintiff had a "perfect" relationship with his children as well as "a perfect family life according to what I saw" (30). After the divorce action began, John P only saw S.P. a few times in court and once in the hospital when she was having an appendix operation. When he approached S.P. in court "she was not welcoming" (33). He was "lucky enough to spend time" with N.P. in 2012 and 2013 during Plaintiff's weekend visitations (34-35). After that Plaintiff had no visitation rights and John P had "zero interaction" with the children (36). John P identified some pictures of N.P. taken during Plaintiff's visitation. He said that a picture of N.P. taken just before Plaintiff returned him to his mother shows a change in his expression from happy to "sad," "hesitant," and "scared" (45-46).
Plaintiff's Testimony
Plaintiff filed for divorce in January 2012 because Defendant's behavior became unhealthy for the children. The court initially granted him temporary sole custody of the children, whom he lived with in the marital residence. After seeing "the demise in their face" [sic] (55) he allowed Defendant to return to the residence. On a Sunday morning on March 11, 2012, after spending the weekend in bed, Defendant became "very agitated" and threw a vase at him (57). S.P. previously had moved out to live "on and off" (60) at her grandparent's apartment and N.P. was the only child present. Defendant called the police, who arrested her when they saw the scratches on Plaintiff's neck. Plaintiff then received an order of protection against Defendant which excluded her from the marital residence.
After Defendant's arrest, S.P. went to live with her mother at her grandparents' apartment "full-time" and "slowly [N.P.] was taken away as well" (61). Plaintiff claimed that "some degree of alienation was happening" (61). As of the May 31, 2012 court date, he had not seen N.P. for five weeks.
Plaintiff stayed at the marital residence through the end of July 2012. On the July 24, 2012 court date, Plaintiff "kind of voiced myself [sic] that the kids are sleeping on the floor in one-bedroom apartment [sic] at her parents, and I voiced myself to the Judge and I agreed that, you know, best they take the house, and I move out for the sake of the kids until we can sell the house and there is a trial" (62). Afterwards, "everything went to hell" (62). On August 26, 2012, after he had dropped off N.P. at the marital residence, Defendant made a complaint at the 109 Precinct that he "hit her hard against the fence" (64). Plaintiff was "cleared of any charges" (64) after a trial two-and-a-half years later.
In September 2012, at a precinct exchange of N.P., Defendant prevented N.P. from coming to Plaintiff by holding him with her arms around him. N.P. "was crying" and was "terrified" (74). By September 2012, Plaintiff was no longer speaking to S.P., who was like a "stranger" (67) to him. His relationship with N.P. also "was worsening" (67). On the October 23, 2012 court date, he agreed to buy N.P. a cell phone so that he could speak to him every day. Nevertheless, "communication got dimmer and dimmer" so that by the January 28, 2013 court appearance he had not spoken to N.P. "75 percent of the time" (70).
In December 2012, when he went to N.P.'s Christmas recital, Defendant "came right behind me on the mezzanine flashing a cell phone in my face" and then called the police (78). In January 2013, at a precinct exchange of N.P., Plaintiff was arrested after Defendant complained that he pointed his finger and threatened her. The case also "was dismissed two-and-a-half years later" after trial.
On January 26, 2013, when he was at Toys R Us with N.P. during a visit, Plaintiff removed N.P.'s hat and saw that his ears were bruised. He took pictures and sent them to his lawyer. On the January 28, 2013 court date, Plaintiff "received [N.P.'s] cell phone in pieces in this courtroom" (79). He said that the judge "at the time decided not to allow another phone. So that cut me off communication [sic] with [N.P.] completely" (79).
On February 8, 2013, a Friday night, N.P. called Plaintiff and told him not to pick him up for visitation the next day because of a blizzard forecast. On February 9, 2013, Plaintiff was arrested for "an accident" which occurred at the marital residence where Plaintiff was "being very hurtful" to Defendant (83). "Again, [Plaintiff] was cleared of that charge two years later" (83).
Plaintiff requested a forensic evaluation by Dr. Steinberg because he was "overly concerned of what was happening at the time ending 2012," he "was totally alienated from the kids" and "wasn't seeing neither [sic] kid" (84). He last saw N.P. on March 9, 2013 during a precinct exchange and he last saw S.P. on November 29, 2012 or November 30, 2012 when he went to visit her at the hospital after she had her appendix removed.
Plaintiff is in debt which is why "at some point I stopped having a lawyer and I'm pro se" (87). He explained that "there is a lawyer that supports as consultant [sic], a lawyer that supports my efforts here . . . but it doesn't cost me as much as it did before" (87). He pays $2,200 a month in credit card bills. He understands that the marital residence is in foreclosure. He paid his two-thirds share of the monthly mortgage payments for the first two years after the divorce action began but he "was drained between the legal and paying $4,000 plus child support plus trying to have an apartment" (88).
Plaintiff has "a very good job," however (88). His "ballpark" salary is $207,000 per year and he receives a yearly bonus of "a third" of his salary (90). He pays $1,600 per month rent, and has been paying $1800 per month child support for the past five years. Dr. Neil Edgar Busuttil's Testimony
Dr. Busuttil is a Unit Chief at Kings County Hospital as well as a professor of psychology at Manhattan College. He received a PhD in psychology from Yeshiva University, Albert Einstein School of Medicine; a Masters in forensic psychology from John Jay College of Criminal Justice; and a Bachelors in psychology from Fordham University. On January 14, 2012, at the request of Defendant's prior attorney, he examined Defendant to offer an opinion about the case. He wrote an internal memo based upon his examination, which he did not expect to submit to court. Defendant reported to him that Plaintiff verbally, emotionally, physically and sexually abused her but that he never physically abused the children. Dr. Busuttil saw "some evidence from a medical doctor" (136) that Defendant had suffered severe trauma but did not include the doctor's name in his memo and did not recall it. He noted in his memo that Defendant had no history of drug or alcohol use, although she told him that she was taking Effexor. Defendant showed him a picture of a trip to Mexico which seemed "like a nice trip where the whole family was having fun" (133). Based upon her behavior during his examination, Dr. Busuttil believed what Defendant told him.
Effexor is an antidepressant medication.
Helen M-A's Testimony
Plaintiff has been Helen M-A's tenant for five years. She said that she recalled the "blizzard of 2013" (146). The date of the snowstorm was February 9, 2013. She knew the snowstorm occurred on a weekday "based on my work and the work I brought home" (156). She remembered that it "was during the week, because I work in a hospital and I remember I had to take home a patient list for that" (146). She explained that "when we know that there's going to be a blizzard, we have to bring home our patient list to contact patients" to ensure that they do not come in to the office (146). On the day of the snow storm, she was in Plaintiff's apartment sitting across from him at his kitchen table. They "were snowed in completely" and she came to bring Plaintiff breakfast since he was going to help her husband shovel (147). They "finally cleared up everything about 2:00 in the afternoon" and she did not see Plaintiff leave (148). She said that she had testified for Plaintiff about "the blizzard" once before at his criminal trial and that she had come to court to bail him out three times. She said that "I felt that when [Plaintiff was] accused of the blizzard being in front of [his] prior home allegedly knocking down [his] wife and beating her when [he was] rearrested, I felt that that was a grievous injustice because there was no way anybody was out on the roads" (153).
The court takes judicial notice of the fact that a northeast US blizzard occurred on February 8-9, 2013 (2013 Blizzard, February 8-9, available at http://www.nycareaweather.com/archives/feburary-8-2013/; Matt Daniel, February 2013 Nor'easter Recap [Feb. 11, 2013], available at http://earthsky.org/earth/february-2013-noreaster-recap; Blizzard Drops More Than 2 Feet of Snow on Northeast, available at http://abcnews.go.com/US/blizzard-2013-fierce-storm-drops-feet-snow-northeast/story?id=18443349; see also People v Santiago, 64 AD2d 355, 357 FN1 [1st Dept 1979], citing Hunter v New York, Ont. & WRR Co, 116 NY 615 [1889]).
At Defendant's request, the court takes judicial notice of the fact that February 9, 2013 was a Saturday (see Matter of Persing v Coughlin, 214 AD2d 145, 148 [4th Dept 1995]; People ex rel Kelly v Wilkins, 14 AD2d 490, 491 [4th Dept 1961]; Schenectady Discount Corp v Dziedzic, 31 NYS2d 636, 638 [County Ct, Schenectady County 1941]).
Haritini P's Testimony
Plaintiff lived in Haritini P's home during the summer 2012. On one occasion when N.P. stayed overnight he "was sad when he was leaving" and "became very withdrawn" and "wasn't like himself" (162). N.P. was "always a very happy little boy, very active" (162). By the fall 2012 N.P. "changed" and "appeared very depressed" (163). Before the divorce action N.P. was "hugging, kissing everyone, very warm" but afterwards he "appeared a little distant" and "wasn't as warm as he was when he was little" (165). The last time she saw him was more than four years ago.
Helen P's Testimony
Helen P has known Plaintiff since he was thirteen or fourteen years old. She said that he is "a good and pleasant person" who likes "family" and that he "did a lot for [his] family, the kids" (171). Plaintiff worked hard for his family and was a "great father" and a "great husband" (172). When she came to his home in Flushing, she saw a "beautiful house" and a "happy family" (172). Defendant seemed "happy" with Plaintiff (174). Helen P has not spoken to Plaintiff's children in more than four years (173). When she saw N.P. after the divorce action began, "he was not so happy" as before and "was a little closed" (175).
Defendant's Case
Defendant's Testimony
Defendant and Plaintiff started dating in 1986 at community college when she was eighteen and he was twenty. She knew him from junior high school and high school. He was her "first boyfriend" and her "first love, everything I wanted" (96). They married on May 23, 1992 and conceived two children: S.P., born in 1999 and N.P., born in 2005. She had miscarriages and "both of us decided to have two abortions" before S.P. was born (97). Plaintiff wanted to "build his career" and "to succeed" (97). He wanted to obtain an MBA so that he could "be the American dream of being part of a big company" (97). When the children were infants and toddlers, Plaintiff did not spend a lot of time with them because of school and work. He "tried his best" but "he wasn't there, and if he was there he was not involved with the kids as much" because he was "trying to build his career" (98-99). Although she worked full-time as a teacher, Defendant cared for the children with some help "from two wonderful grandmothers," her mother and mother-in-law (98).
On August 26, 2012 or August 27, 2012, as Plaintiff was dropping off N.P. at the marital residence, Defendant was returning from "the teacher store" but could not unlock the metal gate leading to the basement (101). Plaintiff became angry and started cursing, and "pushed her to the gate" (103). She felt afraid and N.P. started to cry.
On February 13, 2013, Defendant was shoveling the driveway during a snow storm so that she could take N.P. to a precinct exchange for a visit with Plaintiff. Plaintiff "appeared out of nowhere" and "was very angry" (106). He pinched her arm, threw her down and told her "you will never see your son again" (107). She identified two photographs as pictures of the bruises she sustained on her arm.
The court takes judicial notice of the fact that February 13, 2013 was a Wednesday (see Persing, 214 AD2d at 148; Kelly, 14 AD2d at 491; Schnectady, 31 NYS2d at 638).
The court takes judicial notice of the fact that pursuant to the so ordered stipulation of January 28, 2013, Plaintiff was scheduled to have visitation with N.P. from 10:00 a.m. to 6:00 p.m. on alternate Saturdays and Sundays beginning February 9, 2013 (see Bergstol v Town of Monroe, 305 AD2d 349, 350 [2d Dept 2003]; see also In re Adolph v Lynn, 117 ASD3d 495, 496 FN1 [1st Dept 2014]; People v England, 48 AD3d 838 [3rd Dept 2008]).
Defendant introduced the photographs into evidence as Exhibits B and C.
Additionally, at a precinct exchange in March 2013, Plaintiff pointed his finger at her through a glass partition and told her "I'm going to get you" (110).
In February 2015, S.P. became upset because she was receiving multiple hang-up calls from Plaintiff's phone number (180). Although Defendant felt "happy that [Plaintiff] was reaching out to S.P., because I wanted him to have a relationship with her," she recognized that "safety comes first" (181). Defendant wanted to protect S.P. from Plaintiff's verbal and emotional abuse. Defendant said that Plaintiff "constantly" put S.P. down (182). Since she was very young, Plaintiff would call S.P. an "idiot" in Greek and tell her that she was "stupid" and "not worth anything" (182). When S.P. had leading roles in plays, Plaintiff would "come late," "sit in the back" and be on "his blueberry" (183). When Plaintiff attended N.P.'s soccer games, he would "make a scene" yelling and screaming at N.P. and "embarrassing him in front of his friends" (184-185).
When Defendant said "blueberry" rather than "blackberry," Plaintiff mocked "blueberry?" (183).
S.P. graduated with honors from high school with an international baccalaureate degree; speaks Mandarin; and scored one hundred percent on the Greek Regents. S.P. "took [after] her father" (186). S.P. will attend Fordham University, which costs $44,000 per year including scholarships and work/study.
Defendant told Plaintiff in court "I think you would be very proud of her" (186).
N.P. achieved the principal's honor roll at Saint Demetrios Dual Language School and will attend the 7th grade honors program there. The school costs $10,000 per year, excluding extracurricular activities.
S.P. and N.P. often see their friends at their house. S.P. and her friends like to cook different recipes in the kitchen. Most of the kids in the neighborhood are N.P.'s age. He "loves riding his bicycle" and playing basketball (189). N.P. and his friends play outside rather than inside.
After the divorce action began in 2012, N.P. felt stressed and anxious. He suffered vomiting, diarrhea, and did not sleep well, so Defendant enrolled him in therapy. Now her children are "healthy . . . happy . . . [and] have grown as normal children" (100). They "are very independent" and "have blossomed in school, and in sports" (191). Their emotional well-being has improved and "they have hopes and dreams" as well as goals for themselves (191). They are "not afraid to express themselves" (191).
During the marriage, Defendant took the children to the doctor and the dentist and bought them clothing. Plaintiff would sometimes accompany them on a "family shopping trip" but "it was a little tense" because he "didn't like spending money" (191). If S.P. wanted something that was more expensive, they would have to come back another time without him to buy it (192). Plaintiff went to the supermarket since he thought Defendant spent too much money. He sometimes bought juice or snacks that the children did not like, and Defendant would exchange the food he bought with other food in the car. She could not exchange the food at home because Plaintiff would argue that she was spoiling the children.
On weekends while Plaintiff was studying for his MBA, he did not come home until 11:00 p.m. or 11:30 p.m. During the week, he left for work at 6:30 a.m. Defendant got the children ready and dropped them off at school before she went to work. Plaintiff never shared that responsibility with her. Defendant helped the children with their homework and Plaintiff "never, never" helped (193). When the children were sick, she stayed at home with them. On one occasion, when she was at a seminar in Brooklyn for her job, she asked Plaintiff to pick up N.P. from school and take him to the doctor. Plaintiff told her "I'm at work. You have to do it. You're the mother" (196). Defendant said that "other than work," Plaintiff's priority was "to make sure we had food in the house" and to pay the mortgage and bills (194-195).
In January 2012, after Plaintiff filed for divorce, while Defendant was living at her mother's apartment with S.P., Plaintiff called to ask Defendant how to do N.P.'s homework assignment. He also asked her what kind of shampoo he should use to wash N.P.'s hair. Four or five days later, Plaintiff dropped N.P. off and told Defendant "you take care of him. I can't do it" (193).
Defendant stayed in the marriage because "there is no choice in my family, nobody gets divorced" (197). She also said that "no matter what has happened . . . I'm still in love with this man" (197). Nevertheless, Plaintiff made her feel lower than an ant. She said that "no matter what I did, I never thought I gained his love. I was never loved for me" (197). Plaintiff physically and sexually abused her. He also would "grab [the children] so hard" (198). The children would "become like ice" because they felt "violated" but could not "express themselves" (199). When they turned to her for comfort, she and Plaintiff fought because he believed that she was spoiling them. Plaintiff's parenting style was "old school" (199). It was "verbally abusing, bringing them down. Screaming, yelling, name-calling" (199). Defendant is afraid of Plaintiff for herself and the children. She would want her children to be with Plaintiff if that were possible but "safety comes first" (335). Plaintiff is "too angry" to visit with the children (331). He "will not let them be who they are" and "make them cry" and "most of all, he will make them feel unsafe" (331). Defendant fears that Plaintiff is "so angry with me, that he might take it out on my children" (332).
Defendant testified that she is a public elementary school teacher. Her current salary is $92,000 per year. In 2016, she only earned $49,000 because she missed work due to an accident where she injured her foot. In 2015, she earned between $78,000 and $82,000. She has accumulated approximately $170,000 in attorneys' fees.
Defendant testified that she and Plaintiff purchased the marital residence in 1999 for approximately $380,000 and that title is in both their names. Her parents gave her $40,000 or $50,000 towards the approximate $70,000 down payment. She said that she recently received notice of a foreclosure action on the house. She does not know what year the mortgage last was paid. She tried to make a payment one year around Saint Patrick's Day but her check came back.
Police Officer Leslie Yuhas' Testimony
Police Officer Yuhas is a domestic violence officer at the 109th Precinct. Her responsibility is to follow-up with victims to ensure that they are receiving necessary services and are safe. In 2014 the precinct included Defendant in their "high propensity" list of victims who are "in a lot of danger" because of the number of incidents involving Plaintiff (297). She has visited with Defendant as a high propensity victim twice a month since 2014. She saw Defendant and her children as a close family who enjoyed being together and were happy. She and Defendant talked about "everything" (299). Defendant sometimes was emotional about upcoming court dates and spoke to her privately. Because there have not been any recent incidents, the precinct removed Defendant from their high propensity list. Dr. Michael Steinberg's Testimony - Court's Witness
Dr. Michael Steinberg testified as an expert in child, adolescent and adult psychology. He received his doctorate from the University of Florida in 1987. He was the Chairman of the Psychology Department at Brunswick Hospital in Long Island and is a Professor of Family Therapy in the PhD program at Fordham. He has been in private practice for the past 27 years. He sees approximately 85 patients per week and does approximately five custody evaluations each year. He previously has testified as an expert approximately 50 times in Nassau and Suffolk County courts.
Dr. Steinberg performed the custody evaluation in the instant case over a three-month period. Based upon his investigation, including interviews with the children and Defendant's psychiatrist, Dr. Steinberg found that Plaintiff had verbally, physically and sexually abused Defendant. Additionally, he believed that Defendant's response as a "highly anxious and frightened person" to "an atmosphere that promoted tremendous anxiety" caused certain behaviors and characteristics in the children (231).
The court admitted his report into evidence as Court Exhibit 1.
S.P. was "parentified and over-responsible" (229) as well as "over-involved" in the case (257). Because Defendant was not "computer-savvy," she arranged to have legal correspondence sent to S.P.'s email address, which inappropriately exposed her to the litigation. S.P. also twice accompanied Defendant to court (257). Further, N.P. was extremely anxious. On one occasion Defendant brought a vomit bag to a precinct exchange with Plaintiff, which provided "a cue for [N.P.] to be upset" (258). Regardless, "it wasn't exclusively [Defendant's] doing" but a function of her abusive environment (231). Defendant was "caught in an irresolvable dilemma of trying to care for and protect her children" while "at the same time trying to promote a relationship with" Plaintiff (258).
The children gave Dr. Steinberg "multiple examples of [Plaintiff's] mistreatment" (232). The children were "completely credible in their descriptions by virtue of the elaborative nature and detailed nature of their accounts" (232) as well as "utterly without guile" (250). They said that Plaintiff was completely uninvolved in their school work and did not attend parent-teacher conferences. Plaintiff occasionally attended school performances, but arrived at the end, sat in the back, and was on his cell phone. Both children as well as collateral sources told Dr. Steinberg that at one soccer game, Plaintiff humiliated N.P. and made him cry (232-233). N.P. also came to several interviews with Dr. Steinberg "shaking, crying [and] incredibly anxious" (233). He said that he was "scared of" Plaintiff (233). N.P. told Dr. Steinberg that sometimes Plaintiff slapped him and punished him by taking away his pants and making him sit in a corner. Other times Plaintiff "took [N.P.'s] face in [his] hands, asked him to stick out his tongue, and stabbed it with a sewing needle" (234).
Because Plaintiff was uninvolved both physically and emotionally, S.P. assumed "the burden of fathering her brother" N.P. (271). Consequently, N.P. "felt very loved and supported and protected by her" and S.P. became "incredibly precocious in all the best ways . . . very bright . . . very insightful . . . psychologically incredibly astute . . . very caring . . . very kind . . . and incredibly self-reliant" (271).
Dr. Steinberg found Defendant "honest" (274) and "very credible" (250). He emphasized that "the credibility issue was very significant in this case" (236). In 95% of child custody evaluations, the Minnesota Multiphasic Personality Inventory ["MMPI"] profiles are invalid because "there is so much at stake and people want to present themselves in an unrealistic and glowing manner" (236). Defendant's MMPI profile was "a hundred percent valid" (236). She bore out that quality on the multiple occasions he saw her during his three-month investigation. Defendant "elaborated on her weaknesses," "never tried to explain away her mistakes" and "took complete responsibility" (236). Indeed, Defendant "blamed herself for things" which were not her fault (250). He "did not catch her in one inconsistent lie" (236). Defendant was "unusually open and candid" about her shortcomings (272). In his thirty years of practice, Dr. Steinberg rarely had seen "that level of assumption of responsibility and lack of defensiveness" (272). Moreover, when asked to describe Plaintiff's strengths, despite his abuse, Defendant acknowledged that he is a hard worker who is "devoted to his family of origin and good with people" (282). Further, Defendant's responses to the disciplinary questionnaire showed that she looked for underlying causes of her children's misbehavior and delivered negative consequences appropriately. Her child developmental history form was detailed, descriptive and corresponded with the pediatrician's record.
Dr. Steinberg conceded that Defendant suffered from major depression and general anxiety disorder. Although Defendant had a "history of extreme fearfulness and anxiety" as well as "deep feelings of inadequacy" before she met Plaintiff, her "intolerably abusive" living situation was the main source of her dissatisfaction with life (265). Regardless, Defendant was not and never had been suicidal.
Dr. Steinberg believed that there was not "any chance" that Defendant programmed the children against Plaintiff (272). Instead, Defendant struggled with how to promote the children's relationship with Plaintiff, a man whom she did not trust and who terrified her. Dr. Steinberg said that he believed the children feared Plaintiff because he was "fear inducing" and "very aggressive" (273). He saw Plaintiff's "temper" and "out-of-control behavior in [his] office on multiple occasions" (273). Dr. Steinberg said that where one parent programs a child against the other, there is a "complete lack of ambivalence" about the other parent (285). Here, with S.P. for example, that was not the case. Instead, "it was more a sadness about the father she wanted and didn't have" (285). S.P. was "angry, hurt, and very sad and frightened" of Plaintiff (250).
Dr. Steinberg found Plaintiff incredible (250). His MMPI profile was invalid. Every explanation that he gave for events was "blaming and . . . an attempt to dismantle" Defendant as well as "gratuitous, simulated, shallow and not supportive of the facts" (237). Plaintiff's focus was "on proving how terrible [Defendant] was as a parent" (236). Plaintiff was "self-aggrandizing" and spent most of his time trying to build a case against Defendant (272). Plaintiff alleged that Defendant was suicidal, psychotic and engaged in fantasy. He also claimed that Defendant's school had charged her with abusing a student; that she had incarcerated him on false allegations; and that she had poisoned his children against him. Dr. Steinberg found no basis for any of these contentions. In contrast, Plaintiff lauded his own attributes and did not admit to any true weaknesses. For example, Plaintiff denied any interest in pornography even though his cable bills revealed repeated orders for multiple adult videos over an extended time period. Moreover, Plaintiff's responses to the disciplinary questionnaire were superficial and showed that he was punitive as well as unconscious of the root causes of his children's misbehavior. As well, Plaintiff's child developmental history form lacked descriptive detail and revealed a "hypercritical understanding" of the children (279).
Additionally, Plaintiff's behavior during a supervised meeting with N.P. was "bizarre" (260). N.P. was sitting on the edge of the couch by the door, "shaking" and "crying" (260). Plaintiff "went about closing the blinds . . . and shutting the lights" (260). He told N.P., "I know why you're afraid. You're afraid your mother is looking. You know you love dad" (260). Plaintiff then told N.P. that his mother almost had put him in prison and that she had put him in financial jeopardy. Plaintiff failed to acknowledge N.P.'s "immobilizing anxiety" and "promot[ed] an atmosphere of intense and frenetic anxiety and fear" in him (260). Dr. Steinberg said the meeting was "more a vehicle for [Plaintiff] to declare the unfair way" he felt he had been treated "rather than an attempt to put [his] own feelings aside and focus on [his] son and his anxiety" (260).
Dr. Steinberg testified that it was his practice during a custody evaluation to invite all family members to his office and observe them interact for two hours. Because Defendant had an order of protection against Plaintiff, Dr. Steinberg separately observed each child with each parent.
S.P. also appeared very frightened and was crying when she entered Dr. Steinberg's office for a supervised meeting with Plaintiff. When Plaintiff asked, "how are you" she responded, "shut up" (261). Plaintiff then accused S.P. of being disrespectful and declared that her mother likewise had programmed her against him. He also told her that her mother "needs help" which Dr. Steinberg found "very problematic" since "that was not the time or the place to say that" (261).
Dr. Steinberg believed that Plaintiff was programming the children "to see [Defendant] as sick" and "to believe that [she] had created all this hardship for [him]" (262). Plaintiff's "focus was on [his] difficulties and [his] situation, not [his] children" (262). Dr. Steinberg diagnosed Plaintiff with narcissistic personality disorder with histrionic and antisocial features. In Dr. Steinberg's opinion, Defendant is a loving parent who is "one hundred percent committed to giving [the children] everything she did not have, [such as] friends, activities, comfort in the world, academic opportunities" (274). She has enriched the children by taking them to plays, museums, parks and restaurants and is "fully invested in exposing them to a broad array of experiences and pleasurable activities" (276). Defendant is "adamant, active and . . . formidable in her conviction and ability to effectively create alternative experiences for her children" (265-266). For example, although Defendant reported that she had trouble making friends, she made sure that her children had "play dates" as well as "sleep-overs" and were involved in multiple activities (268). Furthermore, Defendant's goal of keeping her children away from Plaintiff is "valid" because "he does not make them feel safe" and "doesn't provide a safe environment" (285).
On the other hand, Plaintiff is not a good parent. He is "frightening" and "aggressive" (280). Plaintiff "does not look at his own behavior," "lacks self-awareness," is "self-aggrandizing," "narcissistic" and "completely unattuned" to his children's needs (280). Plaintiff criticized the children for not having friends yet prohibited them from having play-dates at their home. On weekends when he engaged in activities with the children, they ate where he wanted and did what he wanted. Plaintiff is skilled at appearing composed and pleasant and it is easy for him to "put on a good front" (281). But although Plaintiff is "adept and savvy interpersonally in the sprint . . . in the long run he cracks if challenged" (281).
Finally, Dr. Steinberg testified that if Plaintiff developed the "capacity to look at himself and his own part in this scenario" in the years since the forensic evaluation, then supervised therapeutic visitation with the children "has a possibility of being helpful" (291). Nevertheless, he believes that Plaintiff has minimal capacity for self-reflection and change.
Lincoln Hearing
The court conducted separate in camera examinations of S.P. and N.P. "to corroborate information acquired through testimonial or documentary evidence adduced" at trial (In re Spencer v Spencer, 85 AD3d 1244, 1245 [3rd Dept 2011]). The children's testimony at that hearing is confidential (In re Verry v Verry, 63 AD3d 1228, 1229 [3rd Dept 2009]).
Findings of Fact and Conclusions of Law
The court rejects Plaintiff's claims that Defendant is mentally unstable; has falsely accused him; and has alienated his children against him. Rather, the court finds that by his own actions, Plaintiff has alienated Defendant and his children against himself. The court accepts the evidence adduced at trial and the Lincoln hearing that Plaintiff mentally and physically abused Defendant and the children during the marriage. Defendant's testimony was compelling, believable and supported by the findings of the forensic evaluator, Dr. Steinberg. Dr. Steinberg's evaluation was thorough and complete, and his testimony both articulate and persuasive. Moreover, the children's testimony at the Lincoln hearing significantly corroborated certain information elicited at trial. In contrast, Plaintiff's testimony was contrived, implausible and unsupported by the evidence.
The credible evidence establishes that Plaintiff's priority during the marriage was himself and his work. Although Defendant also worked, she exclusively cared for the children. Because Plaintiff was always working, and the children mostly were with Defendant, they grew closer to her than Plaintiff. On the occasions that Plaintiff was around, he created tension in the family. They had to do what he wanted. Plaintiff controlled what they bought as well as what they ate. He belittled and demeaned them if they did not fulfill his expectations. He yelled, screamed and was physically aggressive towards them.
Defendant submitted to Plaintiff's domination during the marriage. Already insecure and fearful, Defendant became depressed and anxious due to Plaintiff's abuse. She tried to manage an untenable situation by focusing on her children. Her children suffered from the atmosphere in the household, but her love and commitment to them, particularly in the years since she and Plaintiff separated, enabled them to thrive. When Plaintiff filed for divorce, S.P. was twelve and N.P. was seven. S.P. was parentified as well as over-responsible and N.P. was extremely anxious. Now, five years later, during most of which they lived with Defendant and did not see Plaintiff, S.P. is a bright and accomplished young woman entering college while N.P. is an active and cheerful adolescent in middle school.
Defendant claims that despite Plaintiff's abuse, she still loves him. She recognizes that he has worked hard and achieved material success. In no way has Defendant poisoned the children against Plaintiff. Her testimony at trial as well as S.P.'s testimony at the Lincoln hearing demonstrate the very opposite. She would prefer her children to have a relationship with Plaintiff but is afraid that he will harm them. Defendant is not angry. Like her children, she is sad.
Defendant is honest, credible and acknowledges her own limitations. Despite the stress she endured due to Plaintiff's abuse, she persisted in nurturing her children. She is a loving mother who has done her best to make her children's lives better than her own. She has enriched them academically and socially and is responsive to their emotional and physical needs. The children love her and want to be with her.
To the contrary, beneath his polite exterior, Plaintiff is insincere and manipulative. He takes no responsibility for his own actions and but blames others for whatever goes wrong. Ironically, given his claim that she falsely accused him and alienated his children against him, Plaintiff alleges, without a modicum of evidence, that Defendant is mentally unstable and suicidal. Moreover, he has tried to program his children to see her that that way. Plaintiff is entirely self-interested and self-serving. Apart from his financial support, Plaintiff has done little good for his children. His relationship with them during the marriage was tenuous at best. He was involved only peripherally in their lives and subjugated their needs to his own. He verbally and physically abused Defendant in their presence. He also verbally and physically abused them. Then, the children were afraid of him. Now, they are sad and angry with him. They have not seen him for four years and do not want to see him. Defendant has not programmed them to feel this way. They feel the way they do because of how he treated them and their mother.
Family Offense Petition
The court credits Defendant's testimony that in February 2013, when she was shoveling the driveway during a snow storm so that she could take N.P. to the precinct for a visit with Plaintiff, Plaintiff suddenly appeared, pinched her arm causing bruises, threw her down and told her that she would never see her son again. Although Defendant testified that the incident occurred on February 13, 2013, the court takes judicial notice that this date was a Wednesday (see Persing, 214 AD2d at 148; Kelly, 14 AD2d at 491; Schnectady, 31 NYS2d at 638). The court also takes judicial notice that, pursuant to a so-ordered stipulation, Plaintiff was scheduled to have a weekend visit with N.P. on Saturday, February 9, 2013 at 10:00 a.m. (see Bergstol, 305 AD2d at 350; see also In re Adolph, 117 AD3d at 496; England, 48 AD3d at 838). Indeed, Plaintiff himself testified that on February 8, 2013, N.P. called him and told him not to come to the precinct the next day because of the blizzard. Additionally, Plaintiff's witness, Helen M-A testified that the "blizzard of 2013" (146) occurred on February 9, 2013 (156). Therefore, the court finds that the date of the incident was February 9, 2013, which the court takes judicial notice was a Saturday (see Persing, 214 AD2d at 148; Kelly, 14 AD2d at 491; Schnectady, 31 NYS2d at 638). Further, the court takes judicial notice that between February 8, 2013 and February 9, 2013, NYC received over 11" of snow from an intense winter storm (see Blizzard Drops More than Two Feet of Snow on Northeast, available at http://abcnews.go.com/US/blizzard-2013-fierce-storm-drops-feet-snow-northeast/story?id=18443349; Winter of 2012-2013, available at http://thestarryeye.typepad.com/weather/2014/11/each-winters-snowstorm-1970-2014.html; see also Santiago, 64 AD2d at 357 FN1; Brown v McCullough, 240 AD 381, 382 [1st Dept 1934]; People v McCray, 61 AD2d 860, 861 [3rd Dept 1978]); LGS Realty Partners LLC v Kyle & Nikitin, 43 Misc 3d 1220[A], 5 FN1 [Civil Ct, NY County 2014]).
Defendant testified that the incident occurred in February 2013 but that she didn't recall the exact date.
Furthermore, the court rejects Plaintiff's proffered alibi for this incident. Helen M-A, Plaintiff's landlord for the past five years, testified that they were sitting at the kitchen table in his apartment during the morning of the snow storm. She had brought Plaintiff breakfast because he was going to help her husband shovel. She said that they were snowed in until the afternoon and that she never saw Plaintiff leave. She specifically recalled, however, that the snow storm happened on a week day because she had brought home from the hospital where she works a list of patients to contact to cancel their appointments for the next day. Apart from her relationship to Plaintiff - which was close enough for her to post his bail on three occasions - Helen M-A has no apparent motive to lie. Regardless, the court concludes that she is mistaken about the date of the snowstorm. Since February 9, 2013 is not a week day but a Saturday, Helen M-A must have recalled Plaintiff's whereabouts during another snow storm on a different date. Indeed, the court takes judicial notice that approximately one year later, on February 13-14, 2014, a Thursday and Friday, NYC received over 12" of snow from an intense winter storm (New York City Weather Archive: A Glance Back, Day to Day, Recap of Each Winter's Snowstorms in New York (1950—2017), available at http://thestarryeye.typepad.com/weather/2014/11/each-winters-snowstorms-1970-2014.html; 2013-2014 Northeast Winter Stats [March 9, 2014], available at https://www.weatherworksinc.com/winter-statistics-2013-2014; see also Santiago, 64 AD2d at 357; Brown, 240 AD at 382; McCray, 61 AD2d at 861; LGS Realty Partners LLC, 43 Misc 3d at 5).
Pursuant to the stipulation of January 28, 2013, Plaintiff had access to N.P. on weekends only.
Accordingly, the court finds by a preponderance of the evidence that Plaintiff committed the family offenses of Attempted Assault in the Third Degree (see Penal Law § 110/120.00[1]) and Harassment in the Second Degree (see PL § 240.26[1]) against Defendant on February 9, 2013. Consequently, the court grants Defendant a two-year full order of protection against Plaintiff (see FCA § 842).
Custody and Visitation
The court must award custody based upon the best interests of the children (see Agyapon v Zuniga, 150 AD3d 1226, 1227 [2d Dept 2017]; Tofalli v Sarrett, 150 AD3d 1122, 1123 [2d Dept 2017]; Lieberman v Lieberman, 142 AD3d 1144, 1145 [2d Dept 2016]). The court must consider the totality of the circumstances, including but not limited to which alternative will best promote stability; the available home environments; the past performance of each parent; each parent's relative fitness, including the ability to guide the children, support the children's overall well-being, and foster a relationship with the noncustodial parent; and the children's desires (see Agyapon, 150 AD3d at 1227; Tofalli, 150 AD3d at 1123; Lieberman, 142 AD3d at 1145). The quality of the home environment and the parent's ability to guide the children are paramount (see Tofalli, 150 AD3d at 1123). Nevertheless, the presence or absence of any one factor is not dispositive (see id.). Indeed, "there are no absolutes" in deciding custody (Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; see Friederwitzer v Friederwitzer, 55 NY2d 89, 93 [1982]). Finally, any custody determination largely depends on the court's assessment of the credibility of the witnesses as well as the character, temperament and sincerity of the parties (see Agyapon, 150 AD3d at 1227; Lieberman, 142 AD3d at 1146).
Here, it is in the children's best interests for Defendant to have sole custody. As her past performance irrefutably demonstrates, she is the parent who will best promote stability in their lives, guide them and support their overall well-being. Moreover, the children want to be with her. Thus, Defendant shall have sole legal and residential custody of the children.
Further, based upon Plaintiff's history of abusive behavior, his denial of responsibility for his actions and his lack of capacity for change, it is in the children's best interests that Plaintiff shall not have visitation with them (see Matter of Giannoulakis v Kounalis, 97 AD3d 748, 749 [2d Dept 2012]; Matter of Wright v LaRose, 271 AD2d 615 [2d Dept 2000]; Matter of Gavrusinas v Melnichenko, 305 AD2d 679 [2d Dept 2003]; see also Matter of Williams v O'Toole, 4 AD3d 371 [2d Dept 2004]; Nacson v Nacson, 166 AD2d 510 [2d Dept 1990]). The children have had no contact with Plaintiff for four years and presently oppose visiting with him. While their desires are not controlling, substantial evidence demonstrates that visitation with Plaintiff would be detrimental to the children and "inimical to [their] welfare" (Matter of Jones v Jones, 155 AD2d 542 [2d Dept 1989] ["the record indicates that the children had had virtually no contact with their father for the preceding seven years, that their last visit with him in 1982 was particularly disruptive to them, and that they were both vehemently opposed to visitation"]; see also Cook v Cook, 142 AD3d 530 [2d Dept 2016]).
The court declines to award even therapeutic supervised visitation (see Giannoulakis, 97 AD3d at 749). The forensic evaluator indicated that therapeutic supervised visitation might be reasonable if Plaintiff developed the "capacity to look at himself and his own part in this scenario" in the years since the custody evaluation (291). Nevertheless, it was the evaluator's opinion that Plaintiff has minimal capacity for self-reflection and change. Indeed, there is no evidence that Plaintiff has changed since the custody evaluation. To the contrary, Plaintiff still refuses to acknowledge his misconduct and falsely blames Defendant for his current predicament. Therefore, Plaintiff shall have no visitation with the children.
Equitable Distribution
Marital property constitutes "all property acquired by either or both spouses during the marriage" (DRL § 236[1][c]). Moreover, a gift to both spouses during the marriage from one spouse's parents constitutes marital property (see Strang v Strang, 222 AD2d 975, 976 [3rd Dept 1995]; Ackley v Ackley, 100 AD2d 153, 155 [4th Dept 1984]; see also Mula v Mula, 131 AD3d 1296, 1299 [3rd Dept 2015]). In a divorce action, the court need not divide marital property equally but should distribute it "in a manner which reflects the individual needs and circumstances of the parties" (Diaco v Diaco, 278 AD2d 358 [2d Dept 2000]; Coffey v Coffey, 119 AD2d 620, 622 [2d Dept 1986]; Rodgers v Rodgers, 98 AD2d 386, 391 [2d Dept 1983]). Because the guidepost is "fairness not mathematical precision," the court has the "flexibility and elasticity" to mold a decree appropriate to the circumstances of the case (Rodgers, 98 AD2d at 391). Furthermore, where the court has granted a divorce, it is empowered to dispose of real property regardless of the state of title (see St. Angelo v St. Angelo, 130 Misc 2d 583, 584 [Sup Ct, Suffolk County 1985]).
Here, the sole property subject to equitable distribution is the marital residence. Defendant testified that she and Plaintiff purchased the home in 1999 for approximately $340,000 and that her parents gave them $40,000 or $50,000 towards the $70,000 down payment. She said she recently received a notice of foreclosure action on the house. Plaintiff also testified that he understood that the house was in foreclosure. He stated that he had stopped contributing to the mortgage after he filed for divorce since his other expenses "drained" him (88). The court takes judicial notice of a Queens County Supreme Court order entered on February 27, 2017 granting summary judgment to the mortgagor and appointing a referee to compute the amount due on the note prior to a foreclosure and sale (see Bergstol, 305 AD2d at 350; see also In re Adolph, 117 AD3d at 496; England, 48 AD3d at 838).
Although the custodial spouse generally obtains exclusive possession of the marital residence, the court must weigh the need to remain in the home against the financial circumstances of the parties (see Stolow v Stolow, 149 AD2d 683, 685 [2d Dept 1989]). The court is aware that the children would prefer to stay in the marital residence. N.P., in particular, is very attached to the house and neighborhood. Nevertheless, once Plaintiff stopped contributing his share, Defendant could not pay the mortgage on her own, and a foreclosure action ensued. Because the home is in imminent danger of dissipation through foreclosure, the court appoints a receiver, with the usual powers and directions, to sell the marital residence forthwith (see Zephirin v Pierre-Louis, 141 AD3d 517, 518 [2d Dept 2016]; Foley v Gootenberg, 137 AD3d 744, 745 [2d Dept 2016]; Sprole v Sprole, 145 AD3d 1367, 1371 [3rd Dept 2016]; Bennett v Bennett, 112 AD3d 1108 [3rd Dept 2013]; Martinucci v Martinucci, 288 AD2d 444 [2d Dept 2001]; see also Stratton v Stratton, 39 Misc 3d 1230[A], 4 [Sup Ct, Sullivan County 2013]; Lidsky v Lidsky, 134 Misc 2d 511, 512 [Sup Ct, Westchester County 1986]). Both parties shall cooperate with the receiver to effectuate the sale and shall pay equally, 50/50, the receiver's costs (see Bennett, 112 AD3d at 1108).
Furthermore, considering the twenty-year length of the marriage as well as each spouse's financial and other contributions to the property, including Defendant's contributions as a parent and homemaker, the parties shall share equally, 50/50, in the net proceeds of the sale of the marital residence (see O'Donnell v O'Donnell, 41 AD3d 447, 449 [2d Dept 2007]; Florio v Florio, 25 AD3d 947, 949 [3rd Dept 2006]; Rywak v Rywak, 100 AD2d 542 [2d Dept 1984]). The equity realized from the sale of the residence, in conjunction with the award of maintenance and child support, should allow Defendant to buy or rent another, albeit smaller, home in the same neighborhood (see Stolow, 149 AD2d at 685).
Enhanced Earning Capacity
The court declines to award Defendant 50% of the value of Plaintiff's MBA degree. Defendant failed to establish any value, actual or otherwise, of Plaintiff's enhanced earning capacity (see Shkreli v Shkreli, 142 AD3d 546, 548 [2d Dept 2016]; Elsayed v Edrees, 141 AD3d 503, 505 [2d Dept 2016] [the nontiled spouse "has the burden of proving the asset's value so as to afford the court a sufficient basis upon which to make a distributive award"]; see also Kriftcher v Kriftcher, 59 AD3d 392 [2d Dept 2009]; Vainchenker v Vainchenker, 242 AD2d 620 [2d Dept 1997]). Because there is no evidence of the value of Plaintiff's MBA degree, the court cannot determine the value of Defendant's non-monetary contribution towards it.
Post-Divorce Maintenance
The court grants Defendant's application for post-divorce maintenance. The court must calculate post-divorce maintenance before child support since it must subtract maintenance from the payor's income to determine the amount of child support (see DRL § 240[1-b][b][5][iii][I]). To determine maintenance, the court must calculate the guideline amount by applying the statutory formula to the payor's income up to the statutory cap of $178,000 (see DRL § 236[B][6][d][1] & [2]). The court may adjust the guideline amount of post-divorce maintenance if it is "unjust or inappropriate" (DRL § 236[B][6][e][1]; Griggs v Griggs, 44 AD3d 710, 712 [2d Dept 2007]; Wortman v Wortman, 11 AD3d 604, 606 [2d Dept 2004]). The court must consider certain enumerated factors, including the parties' standard of living during the marriage and the contributions of the payee as parent and homemaker to the career of the other party, as well as any other factor which it finds just and proper (see id.) to determine whether and to what extent it will apply the statutory formula to the payor's income which exceeds the statutory cap (see Griggs, 44 AD3d at 713; Wortman, 11 AD3d at 606; Kaplan v Kaplan, 21 AD3d 993, 996 [2d Dept 2005]; see also DRL § 236[B][5-a][d]; cf. Lundgren v Lundgren, 127 AD3d 938, 940 [2d Dept 2015]).
Plaintiff testified that his 2016 salary was $207,000 and that he receives a yearly bonus of one third of his salary. Accordingly, the court attributes a current income of $275,310 per year to Plaintiff. Defendant testified that her present salary as a teacher is $92,000 per year. Applying the statutory formula, the guideline amount of post-divorce maintenance based upon Plaintiff's income capped at $178,000 is $12,600 per year, or $1,050 per month (see DRL § 236[B][6][d]).
After considering the relevant statutory factors, the court finds the guideline amount of post-divorce maintenance to be unjust and inappropriate (see DRL § 236[B][6][e][1]). Here, although Defendant makes a good living as a teacher, Plaintiff earns three times as much as she does. By his own admission, Plaintiff has a "very good job" (88). The parties enjoyed a comfortable standard of living during the marriage. They lived in a private home in an affluent neighborhood; took vacations; and involved their children in extracurricular activities and sports. Moreover, Defendant contributed to Plaintiff's career by taking care of their home and children while Plaintiff worked and studied for his MBA. Accordingly, it is just and appropriate that Plaintiff pay Defendant post-divorce maintenance of $1,750 per month, or $21,000 per year, taxable to Defendant (see DRL § 236[B][6][e][2]; see also Griggs, 44 AD3d at 712; Wortman, 11 AD3d at 606). Since the parties were married for twenty years, Plaintiff shall pay Defendant post-divorce maintenance for a period of six years (see DRL § 236[B][6][f][1]; see also Griggs, 44 AD3d at 712; Wortman, 11 AD3d at 606). Considering Defendant's current inability to meet her housing costs, evident from the foreclosure action, this award is sufficient for her to meet her reasonable needs and monthly expenses in the interim (see Grumet v Grumet, 37 AD3d 534 [2d Dept 2007]; Griggs, 44 AD3d at 712).
Child Support
The court grants Defendant's application for child support. To determine child support, the court must calculate the amount of the basic child support obligation by applying the statutory formula to the parents' combined income up to the statutory cap of $143,000 (see DRL § 240[1-b][b] & [c]). Here, Plaintiff's current income, minus post-divorce maintenance to Defendant, is $254,310. Defendant's income, including maintenance, is $113,000. The basic child support obligation for two children based upon the parents' combined income capped at $143,000 is $35,750 per year (see DRL § 240[1-b][c][2]; DRL § 240[1-b][b][3][i]).
When the parents' combined income exceeds the statutory cap, the court must determine the amount of child support, if any, from the excess income by considering certain enumerated factors as well as any other factors which the court deems relevant (see DRL § 240[1-b][c][3]; see also Sprole v Sprole, 145 AD2d 1367, 1369 [3rd Dept 2016]). Considering Plaintiff's substantial income; Defendant's significantly lesser income; and the standard of living the children would have enjoyed had the marriage continued, the court finds it just and appropriate to apply the statutory formula to the parents' combined income up to $250,000 (see DRL § 240[1-b][f]; see also Allison B v Edward A, 54 Misc 3d 1226[A], 5, 2017 NY Slip Op 50322[U] [Sup Ct, NY County 2017]; cf. CG v FG, 53 Misc 3d 229, 236, 2016 NY Slip Op 26220 [Sup Ct, Richmond County 2016]). The enhanced child support obligation is $62,500 per year. Plaintiff shall pay 69%, or $44,125, and Defendant shall pay 31%, or $19,375 of that amount. Accordingly, Plaintiff shall pay Defendant $3,593.75 per month in child support until S.P. is emancipated at the age of twenty-one. Thereafter, Plaintiff shall pay $2,514.58 in child support until N.P. is emancipated at the age of twenty-one. Further, Plaintiff shall pay 69% and Defendant shall pay 31% of statutory add-on expenses, including but not limited to unreimbursed medical expenses (see DRL § 240[1-b][c][5][v]; see also Lueker v Lueker, 72 AD3d 655, 658 [2d Dept 2010]; Hughes v Hughes, 79 AD3d 473, 476 [1st Dept 2010] ["add-on expenses such as child care and unreimbursed medical expenses are to be prorated in the same proportion as each parent's income is to the combined parental income"]).
Tuition
"Unlike child care expenses and unreimbursed health care expenses . . . education expenses are not directly connected to the basic child support calculation" (Cimons v Cimons, 53 AD3d 125, 131 [2d Dept 2008]). Education expenses encompass private school tuition and college (see id. at 131-132). The evidence at trial and at the Lincoln hearing establishes that S.P. and N.P. each are excellent students with diverse interests. Both children graduated their respective grades with honors. S.P. received an international baccalaureate degree and is proficient in Greek and Mandarin. N.P. is the captain of the school soccer team, plays the saxophone in the school band and aspires to be a computer engineer. S.P. will attend private college and N.P. will continue to attend private middle school. Defendant testified that S.P.'s college tuition is $44,000 and N.P.'s middle school tuition is $10,000 per year. "In determining whether to award educational expenses, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice" (Manno v Manno, 196 AD2d 488, 491 [2d Dept 1993]). The children's best interests as well as justice require that Plaintiff contribute to their educational expenses (see id.; Cimons, 53 AD3d at 131; Cassano v Cassano, 203 AD2d 563, 564 [2d Dept 1994]). Hence, Plaintiff shall pay 69%, or $30,360, of S.P.'s college tuition and 69%, or $6,900 of N.P.'s middle school tuition (see Taylor v Taylor, 140 AD3d 944 [2d Dept 2016]; Amos-Richburg, v Richburg, 94 AD3d 1112, 1113-1114 [2d Dept 2012]; Yorke v Yorke, 83 AD3d 951, 952-953 [2d Dept 2011]; Ataande v Ataande, 77 AD3d 742 [2d Dept 2010]; Durso v Durso, 68 AD3d 1107, 1108-1109 [2d Dept 2009]; cf. Niewiadomsk v Jacoby, 61 AD3d 871, 872 [2d Dept 2009]).
Plaintiff shall pay only his share of S.P.'s college tuition but not her collegiate housing while she lives on campus (see Iaanza v Boeger, 58 AD3d 733, 733-734 [2d Dept 2009]; Wortman v Wortman, 11 AD3d 604, 605 [2d Dept 2004]). --------
Counsel Fees
The court denies Defendant's request for counsel fees. An award of counsel fees is within the sound discretion of the trial court (see Prichep v Prichep, 52 AD3d 61, 64-65 [2d Dept 2008]).Moreover, there is "a rebuttable presumption that counsel fees shall be awarded to the less monied spouse" (DRL § 237[a]). Nevertheless, the movant must support a request for reimbursement of counsel fees with an up-to-date and complete net worth statement; a retainer agreement (see Grald v Grald, 33 AD3d 922 [2d Dept 2006]); an itemized invoice of the attorney's work (see Fackelman v Fackelman, 71 AD3d 724 [2d Dept 2010]); and proof of periodic billing at least every sixty (60) days (see Montoya v Montoya, 143 AD3d 865 [2d Dept 2016]). Here, Defendant neglected to present evidence of the required documentation. Although Defendant testified that she spent approximately $170,000 on counsel fees, she did not submit invoices or proof of periodic billing. Accordingly, her application is denied.
The court denies any application not specifically addressed herein. This constitutes the decision and order of the court.
The court directs Defendant to submit a proposed judgment of divorce on notice within sixty days of the date of filing of this decision and order (see CPLR 202.48[a]). Dated: November 15, 2017 Kew Gardens, New York Hon. Elisa S. Koenderman, ASCJ