Opinion
Index No. Redacted
01-03-2024
GARY G., Plaintiff, v. ELENA AG., Defendant.
The parties were married on August 21, 2011. The plaintiff-husband commenced this action for divorce on September 24, 2015 in Supreme Court, Queens County; thereafter, on October 17, 2019, this matter was administratively transferred to this Court by Administrative Order No.318. This Court issued a lengthy written decision and order dated June 14, 2021, which details the extensive procedural history of this litigation ( Gary G. v Elena A.G. , 72 Misc 3d 1201, 146 NYS3d 92 ).
The issues of custody and parenting time were resolved by stipulation of settlement, dated November 9, 2021, which was incorporated into an interlocutory judgment dated March 18, 2022 [Judicial Notice #1]. Pursuant to that stipulation of settlement, which continued the parties’ parenting time schedule from the June 18, 2018 so-ordered stipulation, the parties share joint legal custody and residential custody of the child.
This Court heard trial testimony on: May 25, 2022 [NYSCEF #487]; May 26, 2022 [NYSCEF #488]; June 1, 2022 [NYSCEF #489]; August 2, 2022 [NYSCEF #492]; August 9, 2022 [NYSCEF #493]; September 13, 2022 [NYSCEF #490]; and September 14, 2022 [NYSCEF #491]. Thereafter, prior to submission of summations, on October 4, 2022, defendant filed an order to show cause seeking to reopen testimony on an issue. The Court issued a written decision and order on that application dated December 5, 2022 [NYSCEF #478] granting the application ( Gary G. v Elena A.G. , 77 Misc 3d 760 [Kings County, December 5, 2022] ; however, by stipulation dated February 1, 2023, the parties requested that the additional trial dates be vacated [NYSCEF #481]. In that stipulation the defendant withdrew her claim for allocation of the parties’ marital credit card debt and her application to reopen trial testimony and extended the time to submit summations to March 31, 2023. Thereafter, counsel requested to further extend the date of submission of summations to April l0, 2023 [NYSCEF #483]. Summations by plaintiff and defendant were uploaded on April 10, 2023. The parties uploaded the trial transcripts on October 16, 2023 [NYSCEF #487; #488; #489; #490; #491].
The parties further provided the transcripts for August 2, 2022 and August 9, 2022 on November 14, 2023 after the Court made a second written request that the transcripts of the trial testimony be provided in compliance with the part rules.
The Parties
The parties were married for four years and one month at the time the plaintiff commenced this action for divorce.
The plaintiff-husband is 52 years old. He has a law degree and a license to practice law in New York; however, he was not employed as an attorney during the marriage [Tr. 6/01/23, p. 30]. He is employed as a manager for leasing and special projects for a major government authority.
The defendant-wife is 48 years old and is employed as a clinical pharmacist for a Federal agency where she has worked full-time since 2004 [Tr. 8/2/22, p. 16].
Defendant testified that she had not worked in retail pharmacy since 2003 or 2004 "when I just graduated from pharmacy school" [NYSCEF #493, p. 58].
There is one child of the marriage, A.G., who is ten (10) years old.
Grounds: DRL 170(7)
The plaintiff proceeded to inquest on grounds pursuant to DRL 170(7) on September 14, 2022 and the Court reserved decision. Judgement of divorce is hereby granted to the plaintiff on the grounds of DRL 170(7) irretrievable breakdown of the marital relationship for a period in excess of six (6) months.
Maintenance
Neither party seeks an award of maintenance. [Tr. 9/30/22, p. 42].
Marital Debt
Pursuant to the "Stipulation to Vacate Trial Dates and To Withdraw Defendant's Claims to Marital Debt" dated February 1, 2023 entered into after the conclusion of the trial, the defendant withdrew her application for allocation of marital debt [NYSCEF #481]. The plaintiff listed no marital debts on his affidavit of net worth [Plaintiff's Exhibit 3 in evidence]. Absent that stipulation, the parties’ respective financial responsibility for marital debt would be before the Court as part of equitable distribution; however, based on the parties’ stipulation, no allocation of marital debt is made herein. Based on plaintiff not requesting any reallocation of marital debt and the defendant withdrawing her application for allocation of marital debt, the Court find that each party shall be solely financially responsible (100%) for any debts in his or her name.
Issues Before The Court:
The issues before the Court are: child support; equitable distribution of the marital residence and the defendant's retirement account; and the parties’ cross-applications for counsel fees.
The parties, through counsel, stipulated on the record during trial on August 2, 2022 that various accounts were plaintiff's separate property including plaintiff's HSBC banks accounts ending xx28; xx47; and xx11 and his deferred compensation plans from New York City; his IRA account ending xx40; his Merrill Lynch brokerage account ending xx87 and his TD Ameritrade accounts ending xx81, xx30, xx96 and xx08 [NYSCEF #492, p. 4-7].
Domestic Violence
The defendant-wife contends that the marital discord began in or around 2014 when she alleges the plaintiff-husband began engaging in domestic violent conduct towards her. The defendant-wife testified to the following acts by the plaintiff-husband:
• In July 2014, that the parties had a disagreement about who was going to take care of the parties’ child [A.] and that the plaintiff "followed me around the apartment and poked me in the eye causing for me to have severe eye operation, cornea operation" [Tr. 6/01/23, p. 21]. On cross-examination, she testified that she continued to live with the plaintiff and did not call 911 or file a policy report [Tr. 06/01/23, pp. 23-24].
• On December 14, 2014, that the plaintiff "grabbed my hands, squeezed them, he punched me in the arm causing me severe pain and bruises" [Tr. 6/01/23, p. 22]. On cross-examination, she testified that she continued to live with the plaintiff and did not call 911 or file a policy report [Tr. 06/01/23, p. 24].
• On February 13, 2015, that the husband punched her in the nose and as a result she sustained a nose bleed [Tr. 6/01/23, p. 19]. On cross-examination she testified that she did not call 911 or file a police report [Tr. 6/01/23, p. 22].
• On November 10, 2017, "I was also holding my little son and that day was Gary's day of care. He was asking me about a jacket that he couldn't find, which he bought for [A.]" and that " ... he grabbed my arm and squeezed it so painfully it caused those marks to occur" [Tr. 6/01/23, pp. 20-21]. On cross-examination she testified that she did not call 911 or file a police report [Tr. 6/01/23, p. 22-23].
• On May 23, 2018, the husband "grabbed my arm" and "squeezed so strong causing those visible marks" on her arm [Tr. 6/01/23, p. 19-20]. On cross-examination, the wife testified that the parties stopped living together after the May 2018 incident [Tr. 06/01/23, p. 25].
The husband denied any acts of domestic violence against the wife during the marriage [Tr. 5/26/22, pp. 42-44].
Credibility
It is well established that the "trial court, which had the opportunity to view the demeanor of the witnesses, was in the best position to gauge their credibility" ( Massirman v. Massirman , 78 AD3d 1021, 911 N.Y.S.2d 462 [2d Dept 2010], quoting Peritore v. Peritore , 66 AD3d 750, 888 N.Y.S.2d 72 [2d Dept 2009] ; see also Varga v. Varga , 288 AD2d 210, 732 N.Y.S.2d 576 [2d Dept 2001], quoting Diaco v. Diaco , 278 AD2d 358, 717 N.Y.S.2d 635 [2d Dept 2000] ). It is also well-established that "[i]n a non-jury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion" ( Goldstein v. Guida , 74 AD3d 1143, 904 N.Y.S.2d 117 [2d Dept 2010], quoting Ivani v. Ivani , 303 AD2d 639, 757 N.Y.S.2d 89 [2d Dept 2003], quoting L'Esperance v. L'Esperance , 243 AD2d 446, 663 N.Y.S.2d 95 [2d Dept 1997] ; see also Schwartz v. Schwartz , 67 AD3d 989, 890 N.Y.S.2d 71 [2d Dept 2009] ). The trial court's assessment of the credibility of witnesses and evidence is afforded great weight on appeal (see Alper v. Alper , 77 AD3d 694, 909 N.Y.S.2d 131 [2d Dept 2010] ; see also Massirman v. Massirman , 78 AD3d 1021, 911 N.Y.S.2d 462 [2d Dept 2010] ; Schwartz v. Schwartz , 67 AD3d 989, 890 N.Y.S.2d 71 [2d Dept 2009] ; Jones—Bertrand v. Bertrand , 59 AD3d 391, 874 N.Y.S.2d 152 [2d Dept 2009] ; Wortman v. Wortman , 11 AD3d 604, 783 N.Y.S.2d 631 [2d Dept 2004] ).
The Court, who had the opportunity to observe the candor and demeanor of the parties and their testimony, finds that defendant's testimony related to the alleged acts of domestic violence was credible and compelling. The Court finds that plaintiff's testimony did not appear candid.
This case was commenced prior to May 3, 2020 when the Legislative amendment to DRL 236 became effective requiring courts determining equitable distribution to consider domestic violence and the nature, extent, duration and impact of the domestic violence.
Prior to the effective date of May 3, 2020, the level of marital fault required to be proper consideration in equitable distribution was governed by the well-established line of case law that only permitted Courts to consider marital fault in equitable distribution when the marital fault was such that it "shocks the conscious" of the Court ( Blickstein v Blickstein , 99 AD2d 287, 292 [2 Dept.,1984] ; see also Alice M. v. Terrance T. , 50 Misc 3d 1204(A) [Kings County, December 23, 2015] ). Under the statute and case law that existed as of the date of commencement of this action, the level of marital fault necessary to be a weighty consideration in determination of equitable distribution "require[d] proof of marital fault substantially greater than that required to establish a bare prima facie case for matrimonial relief. They will involve a situation in which the marital misconduct is so egregious or uncivilized as to bespeak of a blatant disregard for the marital relationship-misconduct that "shocks the conscience" of the court thereby compelling it to invoke its equitable power to do justice between the parties" [ id. at 292 ].
Under the version of DRL 236 in effect as of the date of commencement of this action and the controlling case law at that time, conduct that courts found not to be egregious includes adultery (see Lestrange v. Lestrange , 148 AD2d 587, 588 [1989] ), alcoholism (see Weilert v. Weilert , 167 AD2d 463 [1990] ), abandonment (see Wilson v. Wilson , 101 AD2d 536 [1984], lv. denied 64 NY2d 607 [1985] ), and verbal harassment coupled with several acts of minor domestic violence (see Kellerman v. Kellerman , 187 AD2d 906 [1992] ) ( Howard S. v. Lillian S., 62 AD3d at 191—192, 876 N.Y.S.2d 351 ). Conduct that courts found to rise to the level of "egregious conduct" under DRL 236 prior to the May 3, 2020 amendment sufficient to be considered in awarding equitable distribution were hiring a hitman to kill a spouse (see generally Blickstein v Blickstein , 99 AD2d 287, 292 [2 Dept.,1984] ) and attempting to murder a spouse in front of the parties’ children by beating the spouse's head with a dumb bell (see Havell v Islam , 301 AD2d 339 [1 Dept.,2002] ).
In Howard S. v. Lillian S. , the Court of Appeals noted that mere reprehensible behavior and misconduct that violates the marital relationship is not, by definition, egregious conduct and stated that "[a]t a minimum, in order to have any significance at all, egregious conduct must consist of behavior that falls well outside the bounds of the basis for an ordinary divorce action" ( 14 NY3d 431, 436 [2010] ). This Court is bound to apply the effective statute and controlling case law as of the date of commencement of this action. Here, the conduct alleged by defendant does not rise to the level of egregious conduct under the statute in effect at the date of commencement.
Expenses
The plaintiff testified that during the marriage the parties both contributed to marital expenses:
Q [Plaintiff], prior to commencement of this action, how were the payment of finances in your household handled?
A We shared expenses.
Q And how was that determined between yourself and your wife?
A We talked about it. And made decisions based on whatever the given expense was.
Q And what expenses were you paying?
A I was paying the mortgage. And other household related expenses. She was paying the maintenance [for the cooperative apartment].
The plaintiff testified that later during the marriage the defendant asked that they swap so that she could pay the mortgage and he paid the maintenance which, he testified, had "always been pretty close to each other" as expenses. This appears consistent with the representation as to the monthly costs of the mortgage on the marital residence and the monthly maintenance on that apartment. The plaintiff testified that:
Q And at the time, do you remember approximately the cost of the monthly mortgage payment and the cost of the monthly, cost of the monthly maintenance payment?
A The mortgage I believe has always been a consistent $1,176 a month. And the maintenance at this time was probably around $950 to $1,000. They have always been pretty close to each other.
Q Did your wife articulate to you why she wanted to change your arrangement so that she was paying the mortgage instead of you?
A It was her understanding that she would be able to get a write-off on her taxes for a portion of the mortgage payment.
Plaintiff's Affidavit of Net Worth dated January 15, 2022 [Plaintiff's 3]
Plaintiff testified that many of the expenses in his affidavit of net worth have increased between January 15, 2022 and the time of trial. The difference in those costs are highlighted herein by an asterisk denoting that the sum included is the updated sum from his testimony on September 13, 2022 [NYSCEF #490] for total monthly expenses of $20,362.61:
Mortgage, $1,176; renters insurance, $43; co-operative maintenance, $1,040; other, $40; electric, $50; cellular phone, $113; cable, $193; groceries, $800*; dining out, $400*; other, $200; clothing (self), $200; clothing (child), $250; dry cleaning, $40; other, $25; medical insurance, $745; unreimbursed medical/dental/pharmaceutical, $150; household repairs/maintenance, $125; gardening, $25; household (other), $125; automotive gas, $125; automotive repairs, $100; car wash, $20; car parking, $260*; school supplies (child), $70; vacations, $750; movies, $20; music, $10; activities for self, $50; health club, $78; summer camp, $166; birthday party for child, $100; federal income tax, $2,180; NY state taxes, $722; NY city taxes, $459; social security/Medicare, $883; barber, $50; toiletries, $100; books, $50; gifts for others, $120; charitable contributions, $210; commutation expenses, $50; toys, $125; accountant, $40; legal, $9,000.
The Court notes that when the "monthly legal" expense of $9,000 is removed, the plaintiff's monthly expenses are: $11,362.61.
The Court notes that the plaintiff included $9,000 monthly in legal fees for this divorce action in his monthly expenses.
Defendant's Affidavit of Net Worth dated April 28, 2022 [Plaintiff's 16]
Defendant listed her total monthly expenses as $11,225, as follows:
Rent, $2,600; gas, $125; electric, $50; mobile phone, $150; cable, $50; internet, $50; groceries, $593; dining out, $355; clothing (self), $50; clothing (child), $50; dry cleaning, $18; auto insurance, $216; unreimbursed medical, dental and pharmaceutical, $69; household exterminator, $20; auto lease, $448; auto gas/oil, $150; public transportation, $3; parking, $25; tolls, $30; religious instruction, $100; school supplies, $42; tutoring, $520; child's extracurricular activities, $263; vacations, $163; movies, $16; summer camp, $250; child's birthday party, $63; federal monthly tax, $1,618; state monthly tax, $681; NYC monthly tax, $442; social security and medicare, $887; beauty, $50; toiletries, $87; gifts to others, $29; charitable contributions, $17; loan payments, $901.
Based on the parties’ respective affidavits of net worth, their monthly expenses appear to be substantially similar; however, based upon the temporary exclusive use and occupancy, the plaintiff-husband is paying the mortgage while the defendant-wife was paying rent elsewhere.
Marital Residence
The marital residence is a co-operative apartment in Forest Hills, New York that the parties purchased in 2012 during the marriage. He testified that he was able to provide documentation supporting that he paid $54,000 of separate property fund towards the 10% downpayment for marital residence. In support, the husband offered into evidence copies of bank records and a carbon copy of a check for $32,000 supporting his testimony [Tr. 5/26/22, p. 29-33; plaintiff's exhibit 4] which he testified was cashed [Tr. 6/01/23, p. 16]. The husband did not dispute his examination before trial testimony that the wife contributed $32,000 to the downpayment. The Court found after bifurcating the issue of the marital residence, which was on consent, under the unique facts and circumstances here that the wife should receive a credit in the sum of $32,000 for her separate property contribution. The wife through counsel conceded that the husband paid $54,000 toward the downpayment [Tr. 5/26/22, p. 39-40; plaintiff's exhibit 5].
The parties through counsel stipulated on the record that neither party was seeking reimbursement for renovation payments made for the martial residence (Tr. 5/26/23, pp. 48-50). The Court notes that both parties alleged that they were unable to obtain bank records from the bank in question in support of their respective separate property claims due to the bank having changed names and the long passage of time.
The wife testified that she paid "around $32,000" towards the downpayment of the marital residence from her bank account using savings from her salary [Tr. 6/01/23, p. 17]. She testified on cross-examination that she tried to obtain bank records in support of her $32,000 separate property claim to the downpayment but was not able to because the bank records were no longer available [Tr. 6/01/23, p. 25].
The plaintiff-husband was granted exclusive use and occupancy of the marital residence on May 24, 2019 pursuant to court order of the Honorable Jodi Orlow, Queens County Supreme Court [JN4] after an extensive trial . That decision was appealed and the Appellate Division, Second Department in affirming the trial court's decision to grant the plaintiff's application for temporary exclusive use and occupancy of the marital residence during the pendency of the divorce proceeding did so "[i]n light of the defendant's voluntary establishment of an alternative residence for herself and the existence of an acrimonious relationship between the parties ..." ( 185 AD3d 1012, 1012 [2 Dept.,2020] ).
Plaintiff's counsel represented on the record that it was an eight-day trial before Judge Orlow and defendant's counsel did not dispute that claim (Tr. 6/01/23, p. 4).
Parties’ Position Regarding Buy-Out of the Marital Residence
The Court bifurcated the issue of the buy-out of the marital residence during the trial to allow for the attorney for the child to participate in that limited issue inasmuch as it related to her client, the parties’ ten (10) year old child who has lived in the marital residence since his birth and who continues to reside in that residence during his parenting time with the father.
Plaintiff-husband sought the right to buy-out the defendant-wife's interest in the marital residence so that the parties’ child can continue to live in the marital residence. He testified that "[i]t's the only home [the son]’s ever known, he's comfortable there, he has friends in the building, he knows his way around the building, it's convenient for him, it's a couple of blocks from his school, where he is going to continue to go to school. There are many, many reasons why I want him to remain there" [May 26, 2022 Tr., p. 20; NYSCEF #488]. He contends that the wife's insistence that the residence be sold and that the husband should not be permitted to buy out her interest is punitive toward the husband and the parties’ child who continues to live in the marital residence during parenting time with the husband-father.
The husband testified that since he took possession of the marital apartment in June 2019 he has paid the mortgage, monthly cooperative maintenance fees and all utilities for the marital residence.
Defendant-wife's statement of proposed disposition requests that the marital residence be sold and the proceeds shared equally (50/50%). She contends that the plaintiff-husband should not be permitted to buy out her share of the marital residence, in effect, because she contends that he has "unclean hands" from seeking to exclude her from the marital residence. She contends that the Court, in effect, forcing the sale of the marital residence and not allowing the husband the right to buy-out her share is equitable. She testified that when the parties got married she had no debt but as of the date of commencement she has "[a]bout $75,000 to $76,000" in debt [Tr. 9/14/22, p. 10]. She contends that she was improperly excluded from the marital residence and incurred higher expenses because of her being excluded.
The attorney for the child took the position that it was in her client's best interest to be allowed to remain in the marital residence if the plaintiff was able to buy-out the defendant-wife's interest given that the child had lived in that home for his whole life and had friends in the building and was comfortable there and that requiring the plaintiff-father to move with the child only served, in effect, to punish him at the detriment of stability for the child.
In a bifurcated hearing held on consent, the Court by oral decision granted exclusive occupancy of the marital residence to plaintiff, which is the residence of the child, and granted the plaintiff's application for a right of first refusal to buy-out the defendant's share of the marital residence. The Court found that inasmuch as defendant-wife conceded that she had no ability to buy out the plaintiff-husband's interest in the marital residence and the plaintiff represents that he does have the financial means to do so and, as such, found that the plaintiff should have the right to buy out the defendant's interest in the marital residence noting that to require, as the defendant requested, that the marital residence must be sold would be unnecessarily disruptive to the child (Tr. 6/1/22, p. 34).
In addition to the credit for her separate property credit for the downpayment towards the house, defendant seeks an award of 70% of the value of the marital residence because, she alleges, plaintiff retained legal counsel more than a year before he commenced the divorce action and refused to save money in his pension account which prevented the Court from making an equitable distribution of marital assets that could have otherwise existed. Defendant contends that the Could should deem this failure to save in his retirement accounts as economic fault by the plaintiff when awarding equitable distribution together with defendant claim that she is likely to face ongoing financial challenges due to the amount of debt she has incurred since the commencement of the action which exceeds her assets. She contends that she incurred debt after the plaintiff commenced this divorce and, she contends, contrived to have her excluded from the marital residence which, she alleges, forced her to incur higher living expenses to rent an apartment and establish an alternative residence while the defendant continued to enjoy the financial benefit of residing in the marital residence. Defendant contends that plaintiff will likely be able to continue enjoying the same standard of living that he has enjoyed during the marriage because of his higher income, his access to separate financial resources exceed $860,000 (Plaintiff's exhibit 3, pp 16, 21) and the financial benefit of remaining in the marital residence.
Neither party hired an appraiser to challenge the court-appointed neutral appraisal for the marital residence and, as such, the Court accepted the neutral court-appointed real estate appraisal dated April 13, 2022 [Plaintiff's 2 in evidence] for the value of $540,000. The Court finds that under the facts and circumstances the parties shall share (50/50%) the value of the marital portion of the marital residence in equitable distribution subject to any credits for separate property contributions to the downpayment.
Neither party offered mortgage statements into evidence as to the balance of the mortgage on the marital residence as of the date of commencement. Pursuant to the plaintiff's affidavit of net worth dated February 18, 2016 in evidence as Defendant's Exhibit L, the outstanding balance of the mortgage was "approx.. $230,000.00" . Based on the testimony and evidence presented by the parties at trial, the following represents the buy-out sum due and owing to the defendant:
The action was commenced in September 2015, approximately five (5) months prior to the date of the affidavit of net worth. Plaintiff provided this sum of outstanding mortgage as of the date closest to the date of commencement and did not provide any other testimony or evidence as to the exact mortgage sum as of the date of commencement. Defendant did not dispute plaintiff's representation as to the balance of the outstanding mortgage and used the sum provided by plaintiff in her summation when calculating what she requested the Court order for a buy-out. Inasmuch as there appears to be consent by the parties to the sum of the mortgage as represented by plaintiff the Court will calculate the buy-out sum using that mortgage balance.
| Appraised Value of Marital Residence | $540,000 |
| Less Mortgage as of date closes to commencement | --$230,000 |
| Net Value | $309,000 |
| Each Parties’ 50% interest | $154,800 |
| Plaintiff's net downpayment separate credit | |
| Plaintiff's Credit of $1,050 pursuant to Order dated June 25, 2018 (Plaintiff's Exhibit 6) | -$1,050 |
| Plaintiff's Buy Out Amount | $130,950 |
|---|
As detailed herein-above, plaintiff established a $54,000 separate property downpayment and defendant established a $32,000 separate property downpayment ($54,000 -- $32,000 = $22,000).
Joint Savings Account: no one testified about it — in Husband's Affidavit of Net Worth:
Valley National Bank account xx54 which the plaintiff concedes in his affidavit of net worth dated January 15, 2022 [plaintiff's exhibit 3 in evidence] has a balance of $13,000 as of the date of commencement and that the source was "marital gifts". Based on plaintiff's affidavit of net worth, the Court finds that the balance as of the date of commencement of that account was marital property subject to equitable distribution and that the parties shall share equally (50/50%) in that balance. Based on the affidavits of net worth in evidence, the balance of that account went from $13,000 as of date of commencement to less than $1,000. There was a failure of proof by both parties as to what happened to those funds and, as such, there is no equitable distribution of those funds based upon a failure of proof (see Massimi v Massimi , 35 AD3d 400 [2 Dept.,2006] ).
Income Tax Returns: Dependent Exemption
Plaintiff testified that the Defendant has claimed the child on her personal income tax returns each year between 2015 and 2021. He testified that he tried to claim the child as his dependent on the 2021 income tax returns but they were rejected because the defendant also claimed the child [Tr. 9/13/22, p. 14-15]. He testified that as a result of the defendant claiming the parties’ child as a dependent he incurred additional accountant costs to amend his tax returns and "lost a $2,000 exemption" [Tr. 9/13/22, p. 15]. The defendant testified that she claimed the child as her dependent every year because "it is fair that I will be claiming [sic ] [the child] as a dependent based on the amount of expenses I am carrying for [the child]" [Tr. 9/14/22, p. 33].
On the record, the parties represented through counsel that they both claimed the child as a dependent on their individual personal income tax returns in 2019.
In Miller v Miller , the Appellate Division, Second Department found that:
Where, as here, the noncustodial parent is contributing the majority of the financial support of the parties’ children, "the court may determine that the noncustodial parent is entitled to declare the children as dependents on his or her income tax returns" (Matter of Jurgielewicz v. Jurgielewicz, 31 AD3d 639, 639, 817 N.Y.S.2d 916 ; see Cohen v. Cohen, 177 AD3d 848, 854, 114 N.Y.S.3d 458 ; Frei v. Pearson, 244 AD2d 454, 457, 664 N.Y.S.2d 349 ). Accordingly, under the circumstances here, the plaintiff is entitled to declare all of the parties’ unemancipated children as his dependents for income tax purposes (see Matter of Jurgielewicz v. Jurgielewicz, 31 AD3d at 639, 817 N.Y.S.2d 916 ; Frei v. Pearson, 244 AD2d at 457, 664 N.Y.S.2d 349 ).
The Court notes that despite the opportunity to do so, neither party offered any testimony or evidence as to the tax consequence on their respective tax liability for claiming the dependent exemption. Here, the Court finds that given the parties shared residential custody arrangement and the fact that the plaintiff has been deemed the non-custodial parent due solely to his higher income, the plaintiff shall have the right to claim the dependent exemption for the child to the extent permitted by applicable tax code inasmuch as he will be paying child support to the defendant and earns a higher income than the defendant.
Thrift Saving Plan: Defendant's Retirement Account [Marital Portion]
The defendant testified that she began her employment with the Federal government in July 2004 and started making contributions to her Thrift Saving Plan. She contends that she should retain the full (100%) amount of her contributions to her Thrift Savings Plan accrued during the marriage because, she argues, the plaintiff-husband did not contribute anything to his own retirement plan during the marriage while she contributed the "maximum possible" to her retirement plan.
It is undisputed that while the plaintiff contributed to established retirement and deferred compensation plans prior to the marriage he did not contribute to these financial assets during the marriage despite having done so prior to the marriage. The parties, through counsel, stipulated on the record during trial on August 2, 2022 that the plaintiff's retirement accounts were his separate property and not subject to equitable distribution [NYSCEF #492, p. 4].
It is undisputed that the plaintiff did not contribute to his retirement plan during the marriage. The defendant contends that plaintiff did not contribute to his retirement plan because he was strategically planning for the divorce. Testimony established that the plaintiff retained his attorney on March 19, 2014 ; however, he did not commence this divorce in September 2015. There is no indication that plaintiff contributed anything to any retirement fund during the marriage either before or after retaining counsel. Based on plaintiff's affidavit of net worth in evidence as Defendant's Exhibit L, plaintiff has deferred compensation and IRA accounts that were funded prior to the marriage but not during the marriage.
Defendant repeatedly highlighted that plaintiff retained his divorce attorney only a few months after the parties’ child was born in XX XX, 2013.
The parties were married on August 21, 2011. As of the date of the statement closest to the date of marriage [September 30, 2011], the defendant's retirement account had a value of $117,497.87 and the value was $198,120 as of the statement closest to the date of commencement [September 30, 2015] [Defendant's exhibit G in evidence].
Defendant contends that it is nearly impossible to compute the marital portion of her thrift savings plan because the funds were moved from account to account; however, neither party requested an appraisal of the marital portion of the defendant's retirement account [Tr. 9//30/22, pp. 55-58] and, at the end of trial, the parties, on consent, provided a stipulation as to the defendant's contributions to her retirement account during the marriage as Defendant's exhibit U on consent, showing a total marital contribution of $70,486.36 to the retirement account. Neither party provided any testimony, documentary evidence or expert testimony as to any increased interest on the marital contribution portion.
The defendant contends that the plaintiff engaged in a secret course of conduct to "set her up" for the divorce including refusing to contribute to his retirement plan and obtaining exclusive use and occupancy of the marital residence post-commencement so that she was forced to incur higher living expenses to obtain housing after she was excluded from the marital residence. The defendant seeks an award of 100% of her retirement account.
"In recognizing marriage as an economic partnership, Domestic Relations Law § 236 mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the courts to consider a number of statutory factors" ( Fields v. Fields , 15 NY3d 158, 170, 905 N.Y.S.2d 783, 931 N.E.2d 1039 ). As of the date of commencement of this action, prior to the amendment in 2020, Domestic Relations Law § 236(B)(5)(d) directed the Court to consider the following statutory factors in accessing the particular facts and circumstances of each case when making a determination of equitable distribution:
(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
(2) the duration of the marriage and the age and health of both parties;
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(5) the loss of health insurance benefits upon dissolution of the marriage;
(6) any award of maintenance under subdivision six of this part;
(7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(8) the liquid or non-liquid character of all marital property;
(9) the probable future financial circumstances of each party;
(10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
(11) the tax consequences to each party;
(12) the wasteful dissipation of assets by either spouse;
(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(14) any other factor which the court shall expressly find to be just and proper.
It is well-established that "[t]he trial court ‘is vested with broad discretion in making an equitable distribution of marital property,’ and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed" ( Kaufman v Kaufman , 189 AD3d 31, 55, 133 NYS3d 54 [2 Dept.,2020], quoting Eschemuller v Eschemuller , 167 AD3d 983, 984 [2 Dept.,2018] ).
"Equitable distribution does not necessarily mean equal distribution ( Michaelessi v Michaelessi, 59 AD3d 688, 874 NYS2d 207 [2 Dept., 2009] ; see also Evans v. Evans, 57 AD3d 718, 870 N.Y.S.2d 394 ; Greene v. Greene, 250 AD2d 572, 672 N.Y.S.2d 746 ).
Here, the testimony and evidence show that the plaintiff is the monied spouse: during the marriage he consistently earned more income than the defendant. The plaintiff also has access to far more financial resources in the form of separate property than the defendant does. The Court has considered the 14 factors and bases the determination of the award on these factors:
the income and property of each party at the time of the marriage and at the time of the commencement of the action : here the plaintiff has far greater separate property resources than the defendant;
the extent of any maintenance award : here there is no award of maintenance;
the non-titled spouse's direct or indirect contributions to the marriage, including services as a spouse, parent, wage earner and homemaker : here there is no indication that the plaintiff made any greater contribution to the marriage than the defendant did but he did not contribute any of his income to assets that are subject to equitable distribution;
the wasteful dissipation of assets by either spouse : here the plaintiff chose to spend his income and not invest any in retirement assets while the defendant diligently contributed to retirement accounts while also contributing equally to the family's living expenses during this short-term marriage.
It is well-established that the trial "court is not required to specifically cite to and analyze each statutory factor ( Rubackin v Rubackin , 107 AD3d 872, 872 [ 2 Dept.,2013]citing Milnes v Milnes , 50 AD3d 750, 750 [2 Dept.,2008] ). Based upon consideration of the factors in DRL § 236[B][5][d] ) as detailed herein-above, the Court finds that it would be unjust to divide the marital share of the defendant's retirement account equally between the parties where she shared in the financial responsibility for the family's living expenses while the plaintiff did not contribute any of his marital income to savings or retirement accounts or any other marital asset subject to equitable distribution. To award the plaintiff an equal (50%) share of the defendant's sole contributions to the only retirement account during the marriage where both parties were otherwise sharing family expenses would provide a windfall to the plaintiff and would, in effect, penalize defendant for diligently attempting to save for the future while still contributing equally to the family's living expenses during the marriage.
In Cuomo v Moss , the Appellate Division, Second Department upheld the trial court's determination that it was appropriate to award the plaintiff 1% of the defendant's retirement accounts "the plaintiff made no contributions to the defendant's retirement accounts, which accumulated funds while the parties were separated but prior to the commencement of this action" ( 199 AD3d 635, 157 NYS3d 475,478 [2 Dept., 2021] ).
Here, it appears that both parties contributed to the living expense of the family during this short-term marriage. The plaintiff does not dispute defendant's representation that she shared the family's living expenses during the marriage and, at times, paid more of the household expenses. After meeting the family's living expenses, the parties made separate fiscal decisions about how to spend what remained of their respective incomes: the defendant diligently ensured that she contributed a portion of her income to building her retirement account — a marital asset — while the plaintiff spent his remaining marital income in ways that did not increase the marital estate. Here, the plaintiff-husband accumulated more separate property wealth prior to the marriage and, as a result of that, it appears at this time that his financial future will be greater than the defendant-wife's financial future. The plaintiff without any explanation chose not to contribute to retirement accounts during the marriage despite having contributed to such accounts prior to the marriage. Furthermore, as herein determined, the plaintiff-husband will have the right to buy-out the defendant-wife's interest in the marital residence and he will enjoy the financial benefits of remaining in the marital residence while it appears undisputed that the defendant is not in a similar financial position.
In Davenport v Davenport , the Appellate Division, Second Department found that the trial court providently exercised its discretion in awarding a spouse only 25% of the other parties’ bank account considering the parties’ relative financial contributions and the short duration of the parties’ four (4) year marriage ( 199 AD3d 637 [2 Dept., 2021] ).
The Court finds that under the unique facts and circumstances here, it would be unjust and inappropriate to divide the defendant's retirement account equally (50/50%) between the parties given that while it appears that the parties jointly shared the day-to-day expenses of the family that it was only the defendant who made financial investments from her income towards building the marital estate while the plaintiff devised not to contribute any of his marital income toward building the marital estate. It is clear from the testimony and evidence at trial that it was a direct result of defendant's efforts that resulted in the existence of the retirement account [ DRL 236, part B[5][d][6] (see generally Cappiello v. Cappiello , 110 AD2d 608 [2 Dept.,1985] ). Given the short duration of the marriage [ DRL 236, part B[5][d][2] and the totality of the circumstances, including that the plaintiff's decision not to contribute to his retirement during the marriage does not appear to have been a joint decision by the parties during the marriage. It is undisputed that the parties were married in August 2011 and that plaintiff retained his divorce attorney in March 2014 before filing the divorce action in September 2015. As such, it is clear that plaintiff was contemplating the divorce on or before March 2014.
In Cappiello v Cappiello , the Appellate Division, Second Department noted that:
This was a brief marriage which, quite simply, did not work. Taking into account the critical consideration of essential fairness and equity, incorporated as part of the "catch-all" factor in Dom.Rel.Law 236, part B(5)(d)(10), as well as the other factors discussed, we conclude that the trial court's award of an equal distribution was improper here. Equitable distribution, as a remedy in marital actions, is not designed either to result in a penalty or a windfall. The fact of marriage, standing alone, does not automatically vest property rights in the assets or estate of the other spouse. Rather, the determination in each case must be individual, based upon the circumstances presented and the considerations of fairness and equity in terms of the several factors enumerated in part B of section 236 of the Domestic Relations Law ( 110 AD2d 608, 609 [2 Dept.,1985] )
As such, based on the facts detailed herein-above including but not limited to the fact that it was a short-term marriage and the defendant was the only party to contribute to retirement accounts, the Court finds that it is appropriate to award the plaintiff-husband 10% and the defendant-wife 90% of the marital contribution to her retirement account of $70,486.36 which is the sum which was accumulated between the date of marriage and the date of commencement. As such, the plaintiff is awarded 10% of the marital portion of the defendant's retirement account in the sum of $7,048.63 ($70,486.36 x .10 = $7,048.63). Plaintiff may seek a domestic relations order in accordance herewith.
Child Support
At trial, the defendant contends that income should be imputed to the plaintiff because he "could" earn more money if he was employed as an attorney and the plaintiff contends that the defendant "could" be working another part-time job in addition to her current employment if she works remotely. Defendant testified credibly at trial to the sources of cash ATM deposits from personal loans from family and friends during the litigation [NYSCEF #492, pp. 38-43]. Defendant testified that in total she received more than $550,000 in personal loans from a relative -- Mr. A. -- spanning from 2017 through to the trial [NYSCEF #493, Tr. 8/9/22, p. 17]. She testified that she entered into a written agreement for the repayment of $89,000 with Mr. A. but she did not entered into any additional loan agreements securing the remainder of the loans [NYSCEF #493, p.
There is no testimony that the plaintiff was ever employed as an attorney during the marriage and the defendant did not offer any expert testimony as to the plaintiff's allegedly higher earning potential. The Court finds that there was a failure of proof by both parties as to alleged claims of additional income and their respective applications to impute income to the other are denied: there is no credible testimony or evidence in the trial record to support either claim. There is no evidence that plaintiff ever practiced law or that defendant had outside income as a pharmacist. The Court cannot consider the parties claims based upon conclusory allegations.
The defendant seeks an award of child support in compliance with the Child Support Standard's Act and opposes any downward deviation. She alleges that the plaintiff did not contribute to the child's financial needs during the litigation and that the plaintiff has more financial resources than she does to support the child in a lifestyle that he would have enjoyed had the marriage continued and that, as such, she needs the full award of child support to meet the needs of the child given that she has less access to financial resources and is encumbered by debt she was forced to incur after plaintiff commenced this litigation.
Defendant contends that plaintiff's net worth including his pre-marital separate property is over a million dollars while her net worth is -$369,428 (Plaintiff's exhibit 16, p. 18) so, she contends, she needs the presumptively correct award of child support without any deviation based on their shared parenting time agreement to help meet the needs of the child.
The parties stipulated to Child Support Standards Act worksheet for 2016 [Defendant's N in evidence consent], 2017[Defendant's O in evidence consent], 2018 [Defendant's P in evidence consent], 2019 [Defendant's Q in evidence consent], 2020 [Defendant's R in evidence consent], and 2021 [Defendant's S in evidence consent]; and 2022 [Defendant's T in evidence consent]. Plaintiff-husband also provided a proposed CSSA worksheet for 2021 including proposed imputed income for defendant which came in as Plaintiff's 24 in evidence on consent. Those CSSA worksheets and the full CSSA calculations detailed therein are incorporated herein by reference.
In Bast v Rossoff , the Court of Appeals noted that custody should be governed by their desire and ability to spend time with their children and their children's bet interests, rather than considerations of child support awards ( 91 NY2d 723, 731, 675 NYS2d 19 [1998] ). In Bast , the Court of Appeals noted that a flexible approach is more likely to promote the objectives of the CSSA. One of the primary objectives of the CSSA, as detailed in Bast was "to increase child support awards so that children do not ‘unfairly bear the economic burden of [parental] separation’ " ( Bast v. Rossoff , 91 NY2d at 731, 675 N.Y.S.2d 19, 697 N.E.2d 1009, quoting Governor's Approval Mem, Bill Jacket, L 1989, ch 567 at 2, 1989 NY Legis Ann, at 250). The Court of Appeals further noted that it is a "generally accepted fact that shared custody is more expensive than sole custody" ( Bast v. Rossoff , 91 NY2d at 730, 675 N.Y.S.2d 19, 697 N.E.2d 1009 ). As the Court of Appeals explained, "shared custody actually increases the total cost of supporting a child by necessitating duplication of certain household costs in each parent's home" ( id. at 730, 675 N.Y.S.2d 19, 697 N.E.2d 1009 ).
In Baraby v. Baraby , the parties shared physical custody of the children on an equal basis (alternating weeks) and the Appellate Division, Third Department determined that "where, as here, the parents’ custodial arrangement splits the children's physical custody so that neither can be said to have physical custody of the children for a majority of the time, the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the ‘noncustodial’ parent for the purpose of support" ( Baraby v Baraby , 250 AD2d 201, 204 [3 Dept.,1998].
The Appellate Division, Second Department in Smisek v DeSantis , 209 AD3d 142 [2 Dept.,2022], has interpreted the Bast and Baraby that "when necessary, courts should take a practical approach to assessing which parent is properly identified as the custodial parent" ( id. at 144 ). In Smisek , the Appellate Division, Second Department found that where parents have substantially the same amount of custodial time it can be appropriate to apply the Baraby rule noting:
"[w]hile a strict counting of overnights might have the advantage of ease of application, it also has disadvantages. Most significantly, as discussed above, such a method does not always reflect the reality of the situation. Furthermore, determining status as the custodial parent on this basis, without considering the reality of the situation, is more likely to encourage gamesmanship on the part of parents in their requests for, or agreements as to, custody, with each parent vying for a slightly higher number of overnights. As observed by the Court of Appeals, parents’ requests for, or agreements as to, custody should be governed by their desire and ability to spend time with their children and their children's best interests, rather than considerations of child support awards" ( id. at 150 ).
In reaching this determination, the Appellate Division, Second Department noted that:
"a flexible approach is more likely to promote the objectives of the CSSA. One of the primary objectives of the CSSA was "to increase child support awards so that children do not ‘unfairly bear the economic burden of [parental] separation’ " ( Bast v. Rossoff , 91 NY2d at 731, 675 N.Y.S.2d 19, 697 N.E.2d 1009, quoting Governor's Approval Mem, Bill Jacket, L 1989, ch 567 at 2, 1989 NY Legis Ann, at 250). It is a "generally accepted fact that shared custody is more expensive than sole custody" ( Bast v. Rossoff , 91 NY2d at 730, 675 N.Y.S.2d 19, 697 N.E.2d 1009 ). As the Court of Appeals explained, "shared custody *151 actually increases the total cost of supporting a child by necessitating duplication of certain household costs in each parent's home" ( id. at 730, 675 N.Y.S.2d 19, 697 N.E.2d 1009 ). Flexible application of the Baraby rule will ensure that children "realize the maximum benefit of their parents’ resources and continue, as near as possible, their preseparation standard of living in each household," when, in a practical sense, they truly have two primary households ( Baraby v. Baraby , 250 AD2d at 204, 681 N.Y.S.2d 826 ). On the other hand, a strict approach to determining which parent is the custodial parent for purposes of child support will make it difficult or impossible for a parent with a lower income to share what is essentially close to equal parenting time, as opposed to precisely equal or greater custodial overnight time. In such cases, the children may experience a significant disparity in standard of living in their two households (id. at 150).
Following the Appellate Division, Second Department's "reality of the situation" analysis as detailed in Smisek v. DeSantis , here this is a case in which:
"the ‘custodial arrangement splits the children's physical custody so that neither can be said to have physical custody of the children for a majority of the time’
( Baraby v. Baraby , 250 AD2d at 204, 681 N.Y.S.2d 826 ). Thus, ‘the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the "noncustodial" parent’ (id.)" (Smisek at 152).
Here, consistent with controlling case law, the plaintiff-father is deemed the non-custodial parent for the purposes of calculating the child support award in compliance with the CSSA inasmuch as the plaintiff consistently earned higher income than the defendant during the marriage (see Cotton v Meng , 212 AD3d 610, 612 [2 Dept.,2023] ; see also Cazar v Browder , 191 AD3d 837, 837 [2 Dept.,2020], citing Matter of Conway v Gartmond , 144 AD3d 795, 796 [2 Dept.,2016] ).
The Child Support Standards Act (CSSA) requires the court to direct "the non- custodial parents to pay his or her pro rata share of the basic child support obligation unless it finds that amount to be "unjust or inappropriate" based upon consideration of the statutory factors. The Court has considered the "(f) factors" in DRL 240[1-b][f] which are:
(f) The court shall calculate the basic child support obligation, and the non-custodial parent's pro rata share of the basic child support obligation. Unless the court finds that the non-custodial parents's2 pro-rata share of the basic child support obligation is unjust or inappropriate, which finding shall be based upon consideration of the following factors:
(1) The financial resources of the custodial and non-custodial parent, and those of the child;
(2) The physical and emotional health of the child and his/her special needs and aptitudes;
(3) The standard of living the child would have enjoyed had the marriage or household not been dissolved;
(4) The tax consequences to the parties;
(5) The non-monetary contributions that the parents will make toward the care and well-being of the child;
(6) The educational needs of either parent;
(7) A determination that the gross income of one parent is substantially less than the other parent's gross income;
(8) The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action;
(9) Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent's expenses are substantially reduced as a result thereof; and
(10) Any other factors the court determines are relevant in each case, the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation, and may order the non-custodial parent to pay an amount pursuant to paragraph (e) of this subdivision.
The Court finds that based on the financial resources of the parties and the standard of living the child would have enjoyed had the marriage or household not been dissolved that it is appropriate to deviate from the presumptively correct child support award to be paid to the defendant by the plaintiff who is the non-custodial parent for the purposes of calculating the basic child support award. The Court notes that while the parents share parenting time with the child, it is clear that the plaintiff-father is the more monied party and he has access to vastly more financial assets than the defendant-mother. As such, the defendant-mother is deemed the residential parent for child support purposes in accordance with existing case law. Based upon the totality of the circumstances, the Court finds that an award of one half of the presumptively correct child support to the mother is appropriate under the facts and circumstance presented here.
Here, the plaintiff is the monied spouse and has greater separate property financial resources than the defendant. Additionally, the plaintiff will have the financial advantage of buying out the defendant's interest in the marital residence while, based on the defendant's testimony she will continue to rent a residence as she contends that she does not have the financial resources to purchase another residence.
The Parties’ Income for Purposes of Calculating Child Support
The parties submitted, on consent, CSSA worksheets and calculation by year from 2015-2022. The full CSSA calculations in those CSSA worksheets provided by the parties on consent are incorporated by reference hereto. The Court rejected both parties’ allegations about imputation of income to the other and the Court will not impute income to either party for the purposes of calculating the presumptively correct child support pursuant to the CSSA.
Here, the non-custodial parent is deemed to be the plaintiff-father who is the monied spouse for the purposes of awarding child support inasmuch as the parties’ share (50/50) residential custody of the child.
| TAX YEAR | Plaintiff's Reported Income | Defendant's Reported Income | Presumptively correct CSSA amount to the mother without any deviation | |
| $132,752.55 | $123,146.06 | $13,581.40 ($1,131.78 monthly) | $6,790.68 annually ($565.89 monthly) | |
| $132,752.55 | $123,146.06 | $13,581.40 ($1,131.78 monthly) | $6,790.68 annually ($565.89 monthly) | |
| $125,958.09 | $120,725.53 | $13,367.68 ($1,113.97 monthly) | $6,683.84 annually ($556.98 monthly) | |
| $126,003.85 | $118,408.90 | $12,970.91 ($1,080.90 monthly) | $6,485.45 annually ($540.45 monthly) | |
| $122,330.97 | $114,737.50 | $12,982.95 ($1,081.91 monthly) | $6,491.47 annually ($540.95 monthly) | |
| $120,803.29 | $112,652.23 | $12,579.39 ($1,048.28 monthly) | $6,289.69 annually ($524.13 monthly) | |
| $128,256.72 | $110,729 | $13,046.47 ($1,087.20 monthly) | $6,523.23 annually ($543.60 monthly) | |
| $128,256.72 | $110,729 | $13,046.47 ($1,087.20 monthly) | $6,523.23 annually ($543.60 monthly) |
The Court herein, based upon the factors detailed herein, is deviating from the full presumptively correct child support award in awarding the defendant-mother half of the presumptively correct award.
The parties stipulated their CSSA income for the purposes of determining 2022 retroactive child support [Defendant's exhibit T in evidence on consent].
The parties stipulated their CSSA income for the purposes of determining 2021 retroactive child support [Defendant's exhibit S in evidence on consent].
The parties stipulated their CSSA income for the purposes of determining 2020 retroactive child support [Defendant's exhibit R in evidence on consent].
The parties stipulated their CSSA income for the purposes of determining 2019 retroactive child support [Defendant's exhibit Q in evidence on consent].
The parties stipulated their CSSA income for the purposes of determining 2018 retroactive child support [Defendant's exhibit P in evidence on consent].
The parties stipulated their CSSA income for the purposes of determining 2017 retroactive child support [Defendant's exhibit O in evidence on consent].
The parties stipulated their CSSA income for the purposes of determining 2016 retroactive child support [Defendant's exhibit N in evidence on consent].
The parties stipulated to utilize their 2016 income for the purposes of determining 2015 retroactive child support [Defendant's exhibit M in evidence on consent].
As such, based on the CSSA worksheet offered into evidence on consent of the parties, commencing on December 1, 2023 and continuing on the 1st day of each month thereafter until the child emancipates, the plaintiff shall pay to the defendant basic monthly child support in the sum of $565.89 monthly ($6,790.68 annually) and the CSSA calculation detailed therein is incorporated herein.
Representing a downward deviation of the presumptively correct CSSA from $1,131.78 to $565.89
The parties’ respective pro rata shares of child support add-ons are: plaintiff, 51.88%; defendant, 48.12%.
Retroactive Child Support
The Court notes that an award of maintenance and child support is effective as of the date of application (see Domestic Relations Law § 236 [B][6][a] ; see also Elimelech v. Elimelech, 58 AD3d 672, 874 N.Y.S.2d 490 [2 Dept., 2009] ; Evans v. Evans, 57 AD3d 718, 870 N.Y.S.2d 394 [2 Dept., 2008]. "Courts have continuing jurisdiction to modify or vacate support orders until they are completely satisfied, except that they have no discretion to reduce or cancel arrears of child support which accrue before an application for downward modification of the child support obligation" ( Dembitzer v. Rindenow, 35 AD3d 791, 828 N.Y.S.2d 139 [2 Dept., 2006] [quoting Hasegawa v. Hasagawa, 290 AD2d 488, 490, 736 N.Y.S.2d 398 [2 Dept., 2002] ; Domestic Relations Law section 236[B][9][b] ).
Defendant first sought an award of child support in her Verified Answer and Counterclaim dated September 15, 2017; however, it is undisputed that the parties continued to live together through May 2019. Based upon the record it appears that the parties maintained the status quo in paying living expenses from the date of commencement until June 2019 when the defendant was excluded from the marital residence when the plaintiff was granted temporary exclusive use and occupancy on May 24, 2019 pursuant to court order of the Honorable Jodi Orlow from Queens County Supreme Court.
Inasmuch as the parties continued to share living expenses status quo and neither party made an application for pendente lite support the Court finds that it is appropriate to award child support back to the date when defendant was excluded from the marital residence and that it would be, under the unique facts and circumstances presented here, inappropriate to award either party child support when they continued to pay the child's living expenses pursuant to the status quo before the defendant moved out of the marital residence. To award child support to either party prior to that date under the facts and circumstances presented would amount to a double shelter allowance (see generally Uttamchandani v Uttamchandani , 175 AD3d 1457 [2 Dept.,2019] ). Based on the hereinabove determination, the plaintiff's retroactive basic child support obligation is as follows based upon the stipulated CSSA worksheets entered into evidence on consent of the parties: June — December 2019, $3,783.15 ; 2020, $6,683.84; 2021, $6,790.68; 2022, $6,790.68; 2023, $6,790.68 ($565.89 monthly x 12 months = $6,790.89).
$540.45 monthly x 7 months = 43,783.15
Based on the basic child support calculation as submitted by the parties on consent as detailed hereinabove, the total retroactive basic child support due from June 2019 through December 2023 is: $24,048.35 subject to reduction for any sums actually paid by plaintiff to defendant by negotiable instrument.
Retroactive sums due by reason of this award shall be paid, together with the monthly support obligation with a credit for any basic child support payments made by check or other negotiable instrument, at the rate of $500.00 monthly until paid in full (see Domestic Relations Law § 236 [B][6][a] ). (See Mosso v. Mosso, 84 AD3d 757, 924 N.Y.S.2d 394 [2 Dept., 2011] ).
Life Insurance
The plaintiff is directed to maintain any existing life insurance policy to secure his child support obligation. Here, no proof was provided as to the cost of maintaining life insurance or the eligibility of obtaining life insurance.
Medical Insurance Cost for Child
Pursuant to Domestic Relations Law 236[B][8][a], the Court has the authority "to order a party to purchase, maintain or assign a policy of insurance providing benefits for health and hospital care and related services for either spouse or children of the marriage ..."
The plaintiff testified that he covered the family on his medical insurance through his employment during the marriage and that the defendant did not financially contribute to that expense. He testified that the monthly cost of the family health insurance was $514.34 bi-weekly; the cost of employee and child only was $299.01; and the cost of employee only coverage was $190.62 bi-weekly. In support he offered medical insurance cost charts from his employer [Plaintiff's exhibit 11 in evidence]. Defendant did not dispute this testimony and evidence nor did she proffer any alternative to maintaining the child on the plaintiff's health insurance. As such, the parties shall be responsible for the cost of maintaining the child on the plaintiff's health insurance as follows: plaintiff, 51.88%; defendant, 48.12%.
The parties shall be pro rata responsible for reasonable and necessary unreimbursed medical expenses. The parties shall utilize in-network providers where possible unless there is an agreement in writing to use an out-of-network provider or no in-network provider is reasonably available.
Health Insurance
Pursuant to Domestic Relations Law section 255, both parties are on notice "... that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan" ( DRL 255 ).
In the event that either party maintains health insurance for the benefit of their spouse, the other party may be entitled to health insurance through a COBRA option, or otherwise, may be required to secure their own health insurance. Plaintiff and defendant shall each be financially responsible for the cost, if any, associated with their own dental and vision coverage.
Despite an opportunity to testify with specificity and to offer documentary evidence in support of any claims for alleged sums due and owing for payment of health insurance costs during the pendency of the action neither party testified or offered any accounting with specificity. As such, there is a failure of proof as to any allocation of health insurance costs.
Add-On Expenses
The defendant-wife contends that the child has additional expenses related to "special needs". She contends that the award of child support should include expenses related to tutoring inasmuch as, had the parties’ marriage not ended, the child would have had access to financial support for these expenses.
The defendant testified that the child "is behind with his writing a lot in school" [Tr. 9/14/22, p. 15]. She testified that she took the child for evaluation at a tutoring program but she was "not able to afford the lessons" [Tr. 9/14/22, p. 15] which were $9,000 a semester [Tr. 9/14/22, p. 23]. The defendant testified that she obtained tutoring for the child at Kumon which she paid for herself [Tr. 9/14/22, p. 22]. On cross-examination, she conceded that at other times the plaintiff paid for some tutoring while the child was in his care and that she paid for that tutoring when the child was in her care [Tr. 9/14/22, p. 25]. She testified that if the marriage had continued she "would have more tutoring for him" [Tr. 9/14/22, p. 17] so that the child "would be in a, in a better school, maybe private school" [Tr. 9/14/22, p. 18].
The defendant testified that the parties hired a tutor recommended by the child's school but that there were issues because the tutoring took place in a "noisy café" [Tr. 9/14/22, p. 33]. She testified that the plaintiff dismissed her when she raised alternative tutoring options [Tr. 9/14/22, p. 33].
Plaintiff did not dispute the defendant's representation about the child's need for tutoring and it appears that the plaintiff conceded that the child benefitted from tutoring inasmuch as he participated in hiring tutoring services during the litigation for the child. As such, the Court finds that the parties shall continue to be pro rata financially responsible for reasonable and necessary tutoring expenses for the child who it is conceded has special needs.
Despite an opportunity to testify with specificity and to offer documentary evidence in support of any claims for retroactive add-on expenses, there was a failure of proof by the defendant on any claims of retroactive add-on expenses and no such retroactive costs are awarded.
Child Support: Extracurricular Activity and Camp Expenses
Generally, basic child support is presumed to meet all the child's basic needs including the "expenses of leisure, extracurricular and enrichment activities, such as after-school clubs, sporting activities, etc., are usually not awarded separately but are encompassed within the basic child support award" ( Sinnott v Sinnott , 194 AD3d 868, 876 [2 Dept.,2021] ). The Court has authority to order a parent to pay these expenses over and above basic child support but doing so is a deviation from the basic statutory formula and requires an analysis under the factors in DRL 240(1-b)(f) (id. ; see also Michael J.D. v Carolina E.P. , 138 AD3d 151 [1st Dept.,2016] ).
Domestic Relations Law 240 [1-b][f] enumerates ten (10) "f-factors" for the Court to consider before deviating. They include the financial resources of the parties and child, the health, needs and aptitude of the child; the standard of living the child would have enjoyed had the household not been dissolved; tax consequences; nonmonetary contributions that a parent makes; educational needs of either parent; disparity in income of the parents; other child support obligation of the non-custodial parent; extraordinary expenses incurred in visitation and any other factor that the court finds relevant ( Domestic Relations Law § 240 [1—b][f] ). Although all the factors do not have to be present, the Court needs to articulate its reasons for making a deviation from basic child support and relate those reasons to the statutory paragraph "f-factors" (see generally Monaco v Monaco, 214 AD3d 659 [2 Dept.,2023] ; see also Hepheastou v Spaliaras , 201 AD3d 793 [2 Dept.,2022] ; Peddycoart v MacKay, 145 AD3d 1081 [2 Dept.,2016] ; Matter of Pitman v. Williams , 127 AD3d 755, 756—757, 7 N.Y.S.3d 227 [2d Dept.2015] ; Matter of Gluckman v. Qua , 253 AD2d 267, 270—271, 687 N.Y.S.2d 460 [3d Dept.1999], lv. denied 93 NY2d 814, 697 N.Y.S.2d 561, 719 N.E.2d 922 [1999] ).
Plaintiff testified that each party presently picks an extracurricular activity for the child and they pay for the cost associated with those respective activities. He testified that the parties alternate picking the child's summer camp and that they split the cost associated with the selected camp [Tr. 9/13/22, pp. 16-17].
The defendant testified that from the date of commencement in 2015 she exclusively paid — except for one or two occasions when the plaintiff contributed -- for the child's extracurricular activities. [Tr. 9/14/22, pp. 11-14]. The defendant testified that the parties’ child is "obese" and that she has incurred expenses for private personal trainers "one to two times per week" [Tr. 9/14/22, pp. 14-15]. She testified that had the marriage continued the child would have enjoyed greater access to extracurricular activities. Defendant did not offer specific testimony as to sums incurred and paid by her related to extracurricular activities nor did she provide any documentary evidence in support of any such claim and, as such, any claim for retroactive expenses are denied based upon a failure of proof. The Court notes that if obesity treatment is prescribed by a doctor then that could be a medical expense.
Here, the Court finds that basic award of child support is sufficient to meet the needs of the child for extracurricular activities. Defendant offered no testimony or evidence related to the DRL 240 "f-factors" that this Court believes would make a deviation over basic child support appropriate here to include extracurricular activities. As such, the Court declines to deviate above the basic child support calculation by awarding additional support for extracurricular expenses. The basic child support award should cover the reasonable extracurricular and weekend activities of the children (see generally Sinnott v Sinnott , 194, AD3d 868 [2 Dept.,2021]). The Court finds that if the parties utilize summer camp in lieu of child care while they are working and/or seeking employment that that cost would be subject to pro rata allocation.
Counsel Fees
The controlling statute in effect at the time of commencement — September 2015 — Domestic Relations Law 237(a) 11 states that:
The statute in effect at the date of commencement in this action was effective October 12, 2010.
... [t]here shall be rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in his own name in the same proceeding. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section."
"The intent of the provision is to ensure a just resolution of the issues by creating a more level playing field with respect to the parties’ respective abilities to pay counsel, ‘to make sure that marital litigation is shaped not by the power of the bankroll but by the power of the evidence.’ " ( Silverman v. Silverman , 304 AD2d 41, 756 N.Y.S.2d 14 [1 Dept., 2003], quoting Scheinkman, Practice Commentaries, McKinney's 81Cons Laws of NY, Book 14, DRL C237:1, at 6, citing O'Shea v. O'Shea,93 NY2d 187, 689 N.Y.S.2d 8 [1999] ; see also DiBlasi v. DiBlasi, 48 AD3d 403, 852 N.Y.S.2d 195 [2 Dept.,2008] ).
It is well-established that " ‘[i]n a matrimonial action, an award of attorney's fees or an expert fee is a matter committed to the sound discretion of the trial court’ " ( Montoya v. Montoya, 143 AD3d 865, 865, 40 NYS3d 151 [2 Dept.,2016] citing Vitale v. Vitale, 112 AD3d 614, 614-615, 977 NYS2d 258 ).
"In determining whether to award final counsel fees at the end of trial, a more detailed inquiry is warranted" ( Duval v. Duval, 144 Ad3d 739, 743, 40 NYS3d 535 [2 Dept.,2016] ). During this more detailed inquiry the New York State Court of Appeals has ruled that the Court must "review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties’ positions" ( DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168 [1987] ; see also Johnson v. Chapin, 12 NY3d 461, 909 N.E.2d 66 [2009] ; see e.g. see also Badawi v. Alesawy, 135 AD3d 793, 795, 24 NYS3d 354 [2 Dept.,2016] ; Levy v. Levy, 44 AD3d 398, 771 N.Y.S.2d 386, [2 Dept., 2004], citing DRL 237[a], [d] ; see also Kearns v. Kearns, 270 AD2d 392, 393, 704 N.Y.S.2d 627 [2 Dept., 2000], appeal denied 95 NY2d 760 [2000] ).
In Duval v. Duval , the Appellate Division, Second Department held that when making a final award of counsel fees "the court is in the best position to determine whether counsel fees should be charged to the moneyed spouse, or charged to the less moneyed spouse as an offset against the equitable distribution award ultimately received, or divided between the parties" ( 144 Ad3d 739, 743, 40 NYS3d 535 [2 Dept.,2016] ). Additionally, it is well-established that the Court may also take into account " ... whether either party has engaged in conduct or has taken positions resulting in a delay of the proceedings or unnecessary litigation." (Prichep v. Prichep, 52 AD2d 61, 65 ; see also Black v. Black, 140 AD3d 816, 33 NYS 3d 379 [2 Dept.,2016] ; Vitale v. Vitale, 112 Ad3d 614, 615 ).
Unlike a pendente lite award of counsel fees, a final order of counsel fees "[i]n the absence of ... a stipulation, an evidentiary hearing is required so that the court may test the claims" of the attorney seeking counsel fees regarding the extent and value of the services rendered ( Kelly v. Kelly, 223 AD2d 625, 636 N.Y.S.2d 840 [2 Dept., 1996] ; see also Pfluger v. Pfluger, 35 AD3d 828, 828 N.Y.S.2d 118 [2 Dept.,2006] ; Nee v. Nee, 240 AD2d 478, 479, 658 N.Y.S.2d 440 [2 Dept., 1997] ; Burns v. Burns, 193 AD2d 1104, 1105, 598 N.Y.S.2d 888 [4 Dept., 1993] ; see also Marocco v. Marocco, 53 AD2d 707, 708, 383 N.Y.S.2d 939 [2 Dept., 1976] ; Woessner v. Woessner, 108 AD2d 812, 813, 485 N.Y.S.2d 325 [2 Dept., 1985] ).
According to 22 NYCRR 1400.2, attorneys practicing Domestic Relations Law are required to provide their clients with itemized bills for their services every sixty (60) days as set forth in the Statement of Clients Rights and Responsibilities. Attorneys must also supply clients with a written retainer agreement which includes a provision requiring attorneys to bill client at least every sixty (60) days ( 22 NYCRR 1400.3 ). Attorneys who fail to substantially comply with 22 NYCRR 1400.2 and 22 NYCRR 1400.3 are precluded from recovering legal fees from the opposition party (see Montoya v. Montoya, 143 AD3d 865, 865, 40 NYS3d 151 [2 Dept.,2016] ; also Rosado v. Rosado, 100 AD3d 856, 995 NYS2d 119 [2 Dept.,2012]). " ‘The court rules imposing certain requirements upon attorneys who represent clients in domestic relations matters (see 22 NYCRR part 1400) were designed to address abuses in the practice of matrimonial law and to protect the public’ " (Rosado v. Rosado, 100 AD3d 856, 995 NYS2d 119 [2 Dept.,2012] citing Hovanec v. Hovanec, 79 AD3d 816, 817, 912 N.Y.S.2d 442 [2 Dept.,2010]. However, when a client does not receive a bill every sixty (60) days but does not object to the timeliness of the invoice the client is assumed to have waved such right (see Rivacoba v. Aceves, 110 AF3d 495, 973 NYS2d 585 [1 Dept.,2013] ). Furthermore, "[i]t is the right of the client, not the adversary spouse, to be billed at least every 60 days, and the client may waive that right" (id at 495, citing Petosa v. Petosa, 56 AD3d 1296, 1298, 870 N.Y.S.2d 178 [4 Dept.,2008] ).
The parties stipulated that the Court decide the issue of whether either party is entitled to an award of counsel fees pursuant to Domestic Relations Law 237 by way of written submissions (see Reehill v. Reehill , 181 AD2d 725 ; Pinto v. Pinto , 260 AD2d 622 ).
The parties stipulated on the record on May 26, 2022 to waive their right to an evidentiary hearing on counsel fees and to submit the issue of counsel fees on written papers at the conclusion of the trial [Tr. 5/26/22, p. 46-47].
Plaintiff seeks an award of counsel fees to be paid by the defendant in the sum of $50,000. In support, plaintiff attached his retainer agreement with counsel dated March 19, 2014 with an hourly rate of $350 for legal services rendered in this divorce action. Plaintiff's contends that he should be awarded counsel fees because, he alleges, defendant engaged in conduct and took positions that resulted in delay and/or unnecessary litigation, including a party's refusal to follow court orders and resulting motion practice that would have been otherwise unnecessary (see Klein v Klein , 178 AD3d 802 [2 Dept.,2019] ; see also Khan v Ahmed , 98 AD3d 471 [2 Dept.,2012] ). Plaintiff contends that $50,000 in contribution towards his counsel fees should be granted because defendant "refused to comply with Judge's [sic ] Orlow's Order granting to Plaintiff exclusive use and occupancy of the Cooperative Apartment" and which required him to incur "in excess of $25,000 to secure Defendant's compliance with the Court Order" [NYSCEF #485, pp. 19-20] and that defendant took litigation positions, including but not limited to her refusing "to comply with that part of the Custody Stipulation which required her to cooperate in the disposal of certain embryos" which resulted in him incurring approximately another $25,000 in counsel fees that would have otherwise been necessary. Plaintiff also contends that "Defendant's repeated hiring and firing of seven attorneys prior to her retention of Mr. Levortiz (Plaintiff's Exhibit 23) resulted in innumerable length delays in the matter" which forced him to incur additional unnecessary counsel fees. Plaintiff submitted billing records in support of his application showing that he incurred more than $518,000 in counsel fees in this divorce action.
The Defendant contends that the Court can only award counsel fees to the less monied spouse pursuant to DRL 237 and that since plaintiff is the monied spouse it would be inappropriate for the Court to award him counsel fees. She also contends that an award of counsel fees is appropriate because he allegedly engaged in secretive, well-calculated course of conduct to imbalance the matrimonial action in his favor. Defendant seeks an award of counsel fees claiming such an award is appropriate because she is the less-monied spouse, because plaintiff allegedly engaged in financial decisions in contemplation of the divorce that decreased the marital estate by not contributing to his retirement accounts and as such she should be awarded "reasonable counsel fees and expenses pursuant to DRL 237" (Defendant's Affirmation of Counsel Fees NYSCEF #484). Defendant does not request a specific sum of counsel fees. Defendant testified that she "had about five, six" attorneys in this litigation [NYSCEF #493, p. 43] including Mr. Jeffrey Strauss ($45,000); Mr. Richard Hause ($70,000); Mr. J. M. ; Ms. Salami Sadadu ($7,000); Mr. John Gemelli ($50,000); and Mr. Yonatan Levoritz ($350,000). Based on defendant's testimony, she incurred in excess of $522,000 in counsel fees related to this divorce action. Defendant testified that she paid these counsel fees from "my salary, and then I had to open the loan" and from loans from friends and family "which I pay back" [NYSCEF #493, p. 44-45].
Defendant testified that she retained Mr. M for $15,000 but that he returned the check to her "because he got sick" [NYSCEF #493, p. 43].
Based upon the parties’ counsel fees submissions it appears that both parties incurred similar counsel fee bills: plaintiff, $518,000; defendant, $522,000.
The Court finds that it is appropriate to award plaintiff counsel fees related to his need to seek enforcement by seeking contempt against defendant for her failure to comply with Judge Orlow's order for exclusive use and occupancy. That application for contempt was granted by Judge Orlow by order dated May 23, 2019 [NYSCEF #6] which was affirmed by the Appellate Division, Second Department (see 185 AD3d 1012, 1012 [2 Dept., 2020). Based upon plaintiff's counsel's request for an award of $25,000 related to counsel fees related to that enforcement application and a review of the billing records submitted by plaintiff the Court finds that an award of $15,000 is appropriate related to the enforcement application plaintiff had to seek to enforce the order of exclusive occupancy against defendant.
Defendant shall pay, directly to plaintiff's counsel, counsel fees in the sum of $15,000 as and for this award of counsel fees within thirty (30) days of notice of entry of the judgment of divorce. If Defendant fails to pay this award of counsel fees as detailed herein, plaintiff's counsel may enter judgment with the Office of the County Clerk against defendant together with costs and statutory interested from the date of non-payment without need for further Court order together with an affirmation of non-payment on ten (10) days notice by overnight mail.
While the plaintiff is the monied spouse, here it is clear that both parties took litigation positions that forced the other to incur additional counsel fees. Some of those unsupportable positions included, but not limited to, the plaintiff's initial refusal to acknowledge the defendant's contribution to the downpayment on the marital residence despite conceding during his deposition that she had contributed toward the downpayment resulted in both parties incurring additional counsel fees as did the defendant's position that the Court should, in effect, force him to sell the marital residence on the open market instead of being able to buy her interest out so that the parties’ child could remain in the only home he has ever known. After careful consideration of the parties’ incomes and respective access to financial resources and their positions, the Court finds that under the facts and circumstances presented that each party should be responsible for their own counsel fees incurred in this action except for the award of $15,000 made herein-above based upon defendant's actions which forced plaintiff to successfully seek enforcement by way of contempt.
Under the unique facts and circumstances presented here, the Court will not award defendant or plaintiff counsel fees based upon defendant's choice to retain and discharge more than five (5) attorneys as detailed herein-above. Defendant's choice to retain and discharge so many attorneys undoubtedly increased her counsel fees; however, the Court will not force the plaintiff to bear the financial consequence of defendant's choice to engage in this litigation strategy. To do so would be to allow the defendant to utilize counsel fees as a weapon against the plaintiff. The Court does not find that under the facts and circumstances presented that defendant's changes in counsel increased plaintiff's counsel fees so significantly to warrant awarding him counsel fees.
Defendant is currently represented by her sixth attorney in this litigation. The Court notes that defendant's current counsel also filed an application to be relieved but subsequently withdrew it.
The Court also recognizes the emotional impact surrounding the parties’ frozen embryos and will not use that, under the facts and circumstances presented here, as a basis to award counsel fees to either side.
Conclusion
This constitutes the trial decision on all ancillary issues.
Plaintiff's counsel shall settle the completed judgment roll for a judgment of divorce in favor of the plaintiff on the grounds of DRL 170(7), together with the minutes of the inquest on grounds and oral decisions on the record, copies of any stipulations and/or any allocutions on ancillary issues, together with a copy of this decision on notice to the other party within sixty (60) days.