Opinion
61725/2017
03-28-2019
M.L.M., Plaintiff, v. R.G.M., Defendant.
NOTICE OF RIGHT TO SEEK MODIFICATION OF CHILD SUPPORT ORDER
This decision contains a child support order. The parties are advised that pursuant to the Low Income Support Obligations and Improvement Act of the Laws of 2010, contained in the New York Domestic Relations Law §§ 236(B)(7)(d) and 236(B)(9)(b)(2), unless the parties have specifically opted out of subparagraph (2) or (3) below in a validly executed agreement or stipulation, either party has the right to seek a modification of this child support order upon a showing of:
1. a substantial change of circumstances; or
2. that three years have passed since the order was entered, last modified, or adjusted; or
3. there has been a change in either party's gross income by 15% or more since the order was entered, last modified, or adjusted, provided that the reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience.
The parties are further advised that, pursuant to Domestic Relations Law § 236 (B)(9) (b(2), child support arrears that have accrued prior to the date of application to annul of modify any prior order or judgment as to child support may not be reduced or annulled.
Factual and Procedural Background
This action for divorce was commenced by plaintiff M. L. K. ("Plaintiff" or the "Wife") against defendant R. G. M. ("Defendant" or the "Husband") on August 8, 2017. (The "Date of Commencement" or "DOC"). The parties were married on December 31, 2007 (the "Date of Marriage" or "DOM"). The parties have three children, all unemancipated: A., age 9; E., age 7; and S., age 5. (The "Children"). The issues of custody and access with respect to the Children were resolved by the Stipulation of Custody and Parenting Time signed by the parties on September 26, 2018 and so ordered by the Court. (The "Custody Stipulation", Deft. Trial Exh. N). Pursuant to the Custody Stipulation, the parties share joint legal custody of the Children and equally divide physical custody according to a 2-2-3 weekly access schedule and equal alternating of holiday and school breaks - - essentially a 50/50 custodial and access arrangement.
The issue of grounds for divorce was resolved by stipulation of the parties, so ordered by the Court on November 17, 2017, by which the parties agreed that Plaintiff would obtain a divorce on the grounds of DRL § 170(7). Accordingly, the Court grants a judgment of divorce on such grounds. Plaintiff may, if she wishes, resume the use of her maiden name.
The trial in this action commenced on November 14, 2018 and continued for six additional days thereafter before concluding on December 10, 2018. Both parties were represented by counsel, and both Plaintiff and Defendant testified at trial. Defendant also called an expert witnesses, Lee Miller, to testify with respect to issues concerning Plaintiff's employment and earning capacity. A number of documents were admitted into evidence and considered by the Court. The parties each filed a post-trial submission.
Since the issues of custody and access have been resolved, the only extant issues are economic ones: equitable distribution, child support and maintenance. Upon review of the testimony and exhibits adduced at trial, the Court makes the following findings and conclusions.
Factual Background
The parties are both well educated children of privilege who, up to this point, have managed to live a comfortable life style thanks in large part to the generosity of their respective parents. Plaintiff is a graduate of Northwestern University where she received a B.A. and B.M. degree, and earned a Masters Degree in Clinical Nutrition from New York University in 2009 (Deft. Exh. A). Since their marriage, Plaintiff has mostly dabbled in the field of nutrition, but in the last few years landed an offer of full time employment at the nutrition/health and wellness company Rejuvenan Global Health, Inc. ("Rejuvenan"), for which she had worked and continues to work on a part-time basis. The offer (Deft. Exh. P), which carried an annual salary of $ 85,000, was made to Plaintiff in May 2017 shortly before the DOC and was rejected by her in favor of her desire to pursue an independent internet career in the health/nutrition area. She did accept a June 2017 Rejuvenan offer to continue working for the company on a consulting basis (Deft. Exh. G). However, other than her work at Rejuvenan, Plaintiff earned less than $ 10,000 in 2017 (Trial Test. ("Tr.") at 313-315). As described below, during her relationship with Rejuvenan and during the marriage, Plaintiff was also awarded 30,000 shares of restricted Rejuvenan stock. (See discussion infra at 25-26).
As far as Defendant is concerned, his employment career has been, to put it mildly, somewhat checkered. A graduate of Dartmouth College and Harvard Law School, Defendant began his career as an associate attorney at the prestigious law firm of Cravath, Swaine & Moore, but soon left to pursue opportunities in the world of finance. His quest included several years, beginning around the DOM, as an erstwhile film producer, during which time he earned virtually nothing (see Pl. Exh. 1), followed by, beginning in 2011, a series of well paying jobs in the more traditional financial sector. Unfortunately, his tenure in each financial sector job could usually be measured in months rather than years, and Defendant - - during the marriage - - was frequently unemployed, searching for another position. (See Tr. at 30-45; 555-567). During these periods, with Defendant wandering in the financial wilderness and Plaintiff not gainfully employed, the parties and their Children nonetheless thrived, thanks to the largesse of their parents; they continued to live in desirable areas, finally settling in the City of Rye, New York. They received cash infusions from their parents and, when necessary, dipped into their Children's 529 accounts, which had been amply funded by their parents - - particularly Defendant's, to the tune of approximately $ 352,000 - - to meet monthly expenses (Tr. at 121; 133-135).
Shortly before the DOC, Defendant left a position in the financial sector and resolved, with the grudging approval of his Wife, to pursue a business venture with his father in Florida. (Tr. at 151-155; 578-579). Within a day or two after he arrived in Florida, Plaintiff informed him that the "situation" was "much harder than [she] ever anticipated." (Tr. at 169). Sensing a serious problem with their marriage, Defendant immediately drove back to Rye, told Plaintiff that he would abandon the Florida venture and do "whatever it takes" to save their marriage. (Tr. at 581-583). He promptly began looking for work, in and outside the financial sector. (Tr. 587-590). As far as preventing a divorce was concerned, Defendant's efforts proved unavailing. Within a few weeks of his return from Florida, Plaintiff commenced the instant action.
In April 2018, within a few months of the DOC, Defendant landed what he hopes is a more stable job outside the financial sector, at Gartner, Inc. ("Gartner"), where he holds the position as Vice President and head of product marketing (Tr. at 593-594), with an annual salary of $ 235,000, and a potential but not guaranteed bonus.
Imputation of Each Party's Income
Much of the trial testimony - - by the parties and Defendant's expert witness Lee Miller - - as well as documentary evidence adduced at trial, focused on the issue of what income should be attributed to each party for the purposes of calculating support payments. After reviewing the testimony and exhibits, the Court concludes as follows:
1. Defendant Husband's Income . The determination of the income to attribute to Defendant is straightforward: his current salary of $ 235,000, with a provision for potential annual bonuses, should be the benchmark. Although Defendant did have relatively short periods of time during the marriage in which he earned somewhat more, he also endured extended periods in which he earned much less or even nothing at all. (See Pl. Exh. 1, Deft. Soc. Sec. St.). With respect to his current position and salary, Defendant testified to and presented evidence of the somewhat extensive job search he engaged in before accepting employment at Gartner. (See Deft. Exh. P). Such search efforts included an attempt to obtain employment in the financial sector - - an area, at least according to Plaintiff, presumably more lucrative than his current position - - with companies similar to those at which he had previously been employed. His search in the financial realm, through no apparent fault of Defendant, did not bear fruit. Indeed, no documentary evidence or credible testimony was adduced by Plaintiff to show that Defendant failed to engage in meaningful efforts to find employment, in the financial sector or elsewhere, in the period following the DOC or at any relevant earlier time in which he was out of a job. Accordingly, the Court will use Defendant's current annual salary of $ 235,000 but will also include a provision for an annual bonus which Defendant seemed somewhat confident of obtaining particularly in view of the "signing" bonus he received when he joined Gartner. In view of the fact that when he was hired by Gartner, Defendant received a $ 10,000 "signing bonus" (Tr. at 670-671; 610-611) as well as his eligibility for an annual bonus in an amount up to 25 percent of his base salary - - potentially over $ 50,000 - - (Tr. at 44-45), the inclusion of some bonus amount in Defendant's imputed income is reasonable. The Court will therefore employ an income figure of $ 270,000 for Defendant, representing a base salary of $ 235,000 and an imputed annual bonus of $ 35,000 in calculating maintenance and child support.
2. Plaintiff Wife's Income . The determination of Plaintiff's base income also proves straightforward due to a recent employment offer to her by Rejuvenan, a company with which she maintains a working-consulting relationship. As Plaintiff's own testimony revealed and the trial exhibits reflect, in May 2017 Plaintiff was offered full time employment with Rejuvenan, a nutrition/health and wellness firm with which she has worked in the past and still maintains a consulting employment relationship. (See Deft. Exh. F). The offer, extended to her in May, 2017, was one for full time employment at an annual salary of $ 85,000 (See Deft. Exh. F). There is no indication that she could not obtain employment there now if she so chooses. Indeed, Rejuvenan thought so highly of Plaintiff that the company awarded her a stock bonus even after she rejected the full time employment offer (Deft. Exh.. G). Moreover, Lee Miller, the occupational expert called by Defendant, testified that Plaintiff could easily earn more than that amount - - $ 92,000 at minimum (Tr. at 388) - - as a full time nutritionist, testimony supported by his written report which the Court finds credible and persuasive in light of Plaintiff's educational background and experience as well the Rejuvenan offer (Miller Report, Exh W at 12-13).
As to what Plaintiff could possibly earn in her own limited liability company through which she now does consulting work (the "LLC") as a nutrition internet entrepreneur - - an opportunity that Plaintiff would prefer to pursue now in lieu of full time employment - - is far more speculative. Indeed, the flights of speculative fancy of both Defendant's expert on the one hand and Plaintiff on the other (see Tr. at 392, 398-400; Deft. Exh. I, Miller Report at 13-14) dovetail into a pie in the sky riches scenario if Plaintiff is simply allowed to earn little or nothing for now into the indefinite future, and instead devote her time to developing her business. (See Tr. at 396-402). Unfortunately, reality must intrude; Plaintiff needs to earn and earn now a significant salary to help support herself and the parties' Children - - which, all must concede, she is certainly capable of doing, both economically and personally. All three Children are of school age, and Plaintiff can and perhaps must do what many spouses with Children are constrained to do - - go to work full time.
Moreover, as Plaintiff herself proclaims, she has been devoting time to developing her LLC business but, exclusive of her income through Rejuvenan - - a potential full time employer - - she earned less than $ 10,000 in 2017 (Tr. at 313-315). Perhaps if her parents are inclined to indulge her and support her desired career path in the same manner in which they have supported her litigation proclivities - - spending, on her behalf, several hundred thousand dollars to date to prosecute this eminently settleable case (Tr. at 452-465) - - she can pursue her dream of business development. Failing that, Plaintiff can join the working world. Accordingly, as far as employment income is concerned, Plaintiff's annual income is imputed to be $ 85,000.
3. Income Imputed to Plaintiff With Respect to Post-DOC Monies Received from Plaintiff's Parents .
Defendant seeks to impute additional income to Plaintiff for support purposes by virtue of the ongoing assistance that Plaintiff's parents have afforded her post-DOC. It is undisputed that Plaintiff's parents have provided her significant financial assistance during the past, post-DOC year including, most notably and exclusive of litigation expenses, with respect to her residential living situation. Thanks to her parents, Plaintiff lives in a single family house in Rye, New York - - one of the more expensive communities in Westchester County - - for free; her father rents the house for her at the rate of $ 7,000 per month (Pl. Exh. 2). Defendant maintains that all or part of such rent - - $ 84,000 annually - - should be imputed to Plaintiff as income; Plaintiff contends that it should be deemed a gift. This latest parental largess continues a pattern of assistance by Plaintiff's parents to her both before and after the DOC. Defendant established at trial that Plaintiff received substantial monies from her parents during the marriage, some used for the Children and living expenses, albeit in a more sporadic fashion than the current regular monthly rental payments. (See Tr. 274-300; Deft. Exh. B-D).
It should be noted that both sets of the parties' parents contributed substantial sums to the parties during the course of their marriage. For example, Defendant's parents not only provided the parties with $ 64,000 of assistance when Defendant was between jobs, but contributed over $ 350,000 earmarked for the Children's 529 accounts - - much of which was subsequently used by the parties for living expenses. (See Tr. at 121, 133-135). Be that as it may, the question remains: what portion, if any, of the rent which Plaintiff's father is paying to house her should be imputed to Plaintiff as income for support purposes.
While contributions made to one of the parties by parents or relatives are not invariably imputed to that party as income for support purposes, the law is clear that contributions made on a regular basis for certain types of expenses may be so considered. Indeed, cases hold that money provided to a party by relatives for necessities and on a regular basis may be deemed income to that party for support calculation purposes. The tenor of the case law that addresses this issue is to the effect that in order to be imputed as income rather than characterized as a gift, contributions from parents or other relatives must be regular, systematic and be used consistently for a necessary expense as opposed to a frivolity.
For example, in the Second Department Case of Ambrose v. Felice , 45 AD3d 581, 585 (2d Dept. 2007), the Court ruled that in determining the mother's income for child support purposes, the lower court erred by failing to impute as income to her "significant expenses covered by a relative." As the Court held,
"As for the mother's income, the mother testified that her father covered certain of her expenses, including her car payments, automobile insurance, and cellular phone service, but did not know the monthly value of those payments. Under the circumstances of this case, it was an improvident exercise of discretion to fail to impute any income to the mother for these significant expenses covered by a relative."
Similarly, in Recco v. Turbak , 124 AD3d 900 (2d Dept. 2015), the Second Department affirmed a Family Court decision to impute as income to the father for child support purposes financial support and resources systematically "provided to him by his own father over a number of years." See Scheinkman, NY Law of Dom. Rel. § 16:22 at 1038 ("Where the noncustodial parent regularly receives money from family members, and also past patterns shows that there is a likelihood the monies will continue to be provided, the court should impute such funds to the noncustodial parent."); see also Baumgardner v. Baumgardner , 98 AD3d 929, 931 (2d Dept. 2012). ("Here, the record supports the Supreme Court's determination that an imputation of income higher than that claimed was warranted. The court properly determined that the plaintiff has access to, and receives, financial support from his family."); Rudish v. Rudish , 150 AD3d 1291, 1292 (2d Dept. 2017) (The Court upheld imputing additional income to defendant since "the evidence presented at the trial demonstrated that he had received financial and other assistance from family members and friends."); Mellen v. Mellen , 260 AD2d 609, 610 (2d Dept. 1999) (For purposes of calculating child support "[i]t was also proper for the court to consider sums of money which the plaintiff received from his parents as income for purposes of determining the amount of his support obligation."); Collins v. Collins , 241 AD2d 725, 727 (3d Dept. 1997) (Respondent in Family Court proceeding "testified that he received $ 80 per month in spending money from his father and estimated the value of benefits he received from living with his parents to be approximately $ 425 per month" which the court attributed as income to him); Miller v. Miller , 18 AD3d 629, 631 (2d Dept. 2005) (In the context of a post-judgment modification of the husband's child support obligation, "the Supreme Court should have considered the assistance the plaintiff received from her mother when calculating her child support obligation for the son."); Abellard v. Aime , 18 AD3d 653 (2d Dept. 2005) ("[T]he Family Court properly considered the assistance [petitioner] received from his father in calculating his child support obligations ... by imputing the loans the petitioner received from his father as income."); Lapkin v. Lapkin , 208 AD2d 474 (1st Dept. 1994) ("In determining the parties' resources for the purpose of child support, the court also properly attributed and imputed to defendant monies received from his parents."); Tesler v. Tesler , 228 AD2d 491, 492 (2d Dept. 1996) ("Further, the court properly attributed and imputed to the husband monies received from his parents.").
More to the point, as a leading commentator noted, housing is plainly a necessary expense the regular provision of which "at little or no cost" by parents or relatives may well be a basis for income imputation to the recipient spouse:
"It is not uncommon to encounter situations where the custodial parent and children are residing with grandparents or other relatives or friends at little or no cost. The provision of free or low cost housing is a factor that the court may consider in deciding whether to deviate from the guidelines. But, it may well be that the provision of free or low cost housing may be considered income to the custodial parent. Where the provision of housing is likely to continue, the court may impute income based on the difference between the market value of the housing and the amount actually paid for it by the custodial parent. Conversely, if it is the noncustodial parent who has free or low cost housing, income may likewise be imputed to that parent where it is shown that such housing will likely continue to be provided and the economic value of the housing is established." (Emphasis added).
Scheinkman, NY Law of Dom. Rel. , § 16.23 at 1039. See Collins v. Collins , supra , 241 AD2d at 727 ; Johnson v. Robusto , 254 AD2d 828 (4th Dept. 1998) (The Court held that the Hearing Examiner properly "attributed to respondent $ 3000 in gifts from his brother to pay respondent's mortgage").
It is undisputed that, thanks to her parents' generosity, Plaintiff is living rent free in one of the most desirable and expensive communities in Westchester County, the City of Rye. This is not to say, however, that the entire $ 84,000 annual housing costs shouldered by her parents should necessarily be attributed as income to Plaintiff. After all, her parents theoretically can, if they so choose, rent a penthouse apartment for her at $ 50,000 per month, well in excess of what the necessity of her housing cost would entail. As the Scheinkman commentary suggests, only a necessary housing expense, if systematically provided by a parent or relative, should be imputed to the recipient spouse as income. However, in the instant case, Plaintiff adduced no evidence of what a reasonable or necessary housing expense for her would be, perhaps because of her insistence throughout her testimony that only a City of Rye residence was appropriate for her so that the Children could continue to attend Rye schools, particularly the Milton Elementary School. Parenthetically, whether Plaintiff's assertion is correct given the fact that Defendant, who has joint, 50/50 physical custody of the Children, also resides in Rye is an open question (Tr. at 327-328). However, by so insisting, Plaintiff effectively concedes - - if not proclaims - - that the rental for a Rye residence is a necessity, not an extravagance. Plaintiff is thus hoist by her own petard and the entire amount of rent paid by her parents - - and deemed essential by her - - may be imputed to her as income.
Accordingly, the annual rent paid by Plaintiff's parents should be imputed to Plaintiff as income for support purposes. Thus, for purposes of calculating maintenance and child support, Plaintiff's annual income is deemed to be $ 169,00 - - $ 85,000 in imputed salary plus $ 84,000 in rental payment contributions of her parents. See Kiernan v. Martin , 108 AD3d 767 (2d Dept. 2013) ; Simmons v. Simmons , 48 AD3d 691 (2d Dept. 2008).
The Court rejects Defendant's related contention that occasional monetary gifts to Plaintiff from her parents and the use by Plaintiff of certain of her parents' credit cards should also be imputed to Plaintiff as income. Since such monies are, unlike the rental payments, not regular and systematic and not used exclusively for necessities and there is no basis for concluding that such largesse will continue indefinitely, such gifts are just that and should not be included as income attributable to Plaintiff. See, e.g. , Scheinkman, NY Law of Dom. Rel. , § 16.22 at 1038 ("[I]mputation is not appropriate where the monies at issue are clearly gifts and there is no fair basis for concluding that the gifts will continue to be given."); Huebscher v. Huebscher , 206 AD2d 295 (1st Dept. 1994) ; Mayle v. Mayle , 299 AD2d 869 (4th Dept. 2002) ("The Court erred, however, in imputing $ 11,000 in income to plaintiff based on the living expenses provided to plaintiff by his girlfriend.")
Maintenance
Plaintiff is seeking maintenance from Defendant in the amount of $ 2,288.33 per month for three years. (Pl. St. Of Proposed Disp. at 1; Pl. Post Trial Br. at 24). Defendant contends that he should pay no spousal maintenance at all. (Deft. Post Trial Br. at 34). Since this action was commenced after January 25, 2016, maintenance must be calculated in accordance with Part B of DRL § 236, specifically DRL § 236 Part B(6).
In the instant case, although custody is to be shared on a 50/50 basis, since Defendant's income exceeds Plaintiff's income, Plaintiff will be deemed the custodial parent for child support purposes and the recipient of child support payments. (See discussion infra at 20). Defendant's income - - calculated as above to amount to $ 270,000 for purposes of this action - - exceeds the maintenance income cap now set at $ 184,000.
Under § 236 Part B(d), the first step is to calculate the maintenance guidelines amount up to and including the $ 184,000 cap using the formula set forth in § 236 B (c)(1) since Plaintiff, not Defendant maintenance payor, will be deemed the "custodial parent pursuant to the child support standards act."
The Court must first subtract 25% of the payee's (here, Plaintiff's) income from twenty percent of the payor's (here, Defendant's) income:
a. 20% of Defendant's income up to the $ 184,000 income cap yields a figure of $ 36,800;
b. 25% of Plaintiff's imputed income of $ 169,000 yields a figure of $ 42,250.
c. $ 36,800 minus $ 42,250 equals ($ 5,450.00).
2. The Court must then:
a. Multiply the sum of Defendant payor's income up to the $ 184,000 and the Plaintiff payee's $ 169,000 income - - $ 353,000 - - by 40%.
b. Forty percent of $ 353,000 yields a figure of $ 141,200.
c. The Court must then subtract Plaintiff's payee's imputed income from that amount: $ 141,200 - $ 169,00 = ($ 27,800).
3. The lower of the two amounts calculated above is the guideline amount of post-divorce maintenance.
Both calculations yield a negative number, indicating that if the cap figure for Defendant's income is used, no maintenance would be due. However, where, as here, the putative payor's income exceeds the statutory income cap, Section 236 Part B(6)(d)(2) provides that the court may, in its discretion, allow for an additional amount of maintenance "which shall take into consideration any one or more of the factors set forth in subparagraph e of this subdivision" (i.e. DRL § 236 Part B (6)(e) ) and shall "set forth the factors it considered and the reasons for its decision in writing or on the record." ( DRL § 236 Part B (6)(d)(3). Next DRL, Part B (6)(e) requires the Court to order the guideline amount up to the income cap "unless the court finds that the post-divorce guideline obligation is unjust or inappropriate" based upon one or more of the fifteen factors listed in the statute, and if the court so adjusts the guidelines amount, it must state the "factors it considered, and the reasons that the court adjusted the post-divorce maintenance obligation." As § 236 Part B 6 (e)(1) and (2) provide:
"e. (1) The court shall order the post-divorce maintenance guideline obligation up to the income cap in accordance with paragraph c of this subdivision, unless the court finds that the post-divorce maintenance guideline is unjust or inappropriate, which findings shall be based upon consideration of any one or more of the following factors, and adjusts the post-divorce maintenance guideline obligation accordingly based upon such consideration:
(a) the age and health of the parties;
(b) the present or future earning capacity of the parties, including a history of limited participation in the workforce;
(c) the need of one party to incur education or training expenses;
(d) the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded;
(e) The wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
(f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
(g) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine of the social service law;
(h) the availability and cost of medical insurance for the parties;
(I) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;
(j) the tax consequences to each party;
(k) the standard of living of the parties established during the marriage;
(l) the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage;
(m) the equitable distribution of marital property and the income or imputed income on the assets so distributed;
(n) the contribution of services of the payee as a spouse, parent, wage earner and homemaker and to the career potential of the other party; and
(o) any other factor which the court shall expressly find to be just and proper.
(2) Where the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate and the court adjusts the post-divorce maintenance guideline obligation pursuant to this paragraph, the court shall set forth, in a written decision or on the record, the unadjusted post-divorce maintenance guideline obligation, the factors it considered, and the reasons that the court adjusted the post-divorce maintenance obligation. Such decision shall not be waived by either party or counsel."
As far as the duration of post-divorce maintenance is concerned, the statute sets forth the following advisory schedule: for a marriage of less than 15 years, the maintenance duration should be between 15% - 30% of the years of marriage. ( DRL § 236 Part B (f)(2) ). Whether the Court employs this advisory schedule or not, the statute requires the court to "consider the factors listed in subparagraph e of this subdivision (quoted in full above) and shall set forth, in a written decision or on the record, the factors it considered." ( DRL § 236 Part B (f)(2) ).
In the instant case, Defendant's income exceeds the maintenance income cap, and the Court has considered the applicable factors set forth in subdivision (e) of the statute and concludes for the reasons set forth below, that Plaintiff shall receive some, limited amount of maintenance.
The Court is mindful of the overriding purpose of maintenance - - to permit the less monied spouse to get his or her feet on the ground financially and become self supporting. See, e.g. Kilkenny v. Kilkenny , 54 AD3d 816, 820 (2d Dept. 2008) ("The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self supporting."); Giokas v. Giokas , 73 AD3d 688 (2d Dept. 2010).
In the instant case, Plaintiff has the ability and means to be self-supporting. Granted, she will not be able to live the lifestyle that the parties together enjoyed absent some assistance from her parents. However, as the evidence adduced at trial showed, the Court has no reason to believe that substantial assistance from her parents will cease in the near future. Moreover, such assistance amounts to more than rental payments on Plaintiff's residence. While the Court was not declined to include in Plaintiff's imputed income the other contributions made to Plaintiff by her parents as described above - - which amount to substantial monthly sums (Tr. at 420-430) - - the Court may consider such gifts in determining whether, in light of them, the maintenance amount derived from the statutory formula is unjust or inappropriate. Since the DOC, Plaintiff's parents have not only furnished her new home, but fully pay, on a monthly basis, several credit cards which she uses. In addition, Plaintiff's parents have funded virtually all of Plaintiff's litigation expenses which amount to several hundred thousand dollars. Since her parents' credit card and legal fee subsidy show no signs of abating in the future, this factor is also part of the Court's calculus.
Nonetheless, in view of the difference between the imputed income of the parties and, more importantly, the opinion of Defendant's own expert, Mr. Miller, that Plaintiff may need some time - - but certainly no more than one year - - to fully transition back to the world of full time employment (Tr. at 409), some award of maintenance for a discreet period of time is called for. In light of all the factors as discussed above, and the relatively short - - less than ten year - - marriage of the parties, the Court concludes that a maintenance award of $ 1,000 per month for twelve months is appropriate. Such maintenance payments shall commence on the first day of the month following the Judgment of Divorce.
Child Support
Plaintiff's application for child support meets a similar fate, albeit for slightly different reasons. Pursuant to Domestic Relations Law § 240(I-b), the Court has considered the calculations delineated in Domestic relations Law § 240(I-b)(f), which permit a deviation from the calculations set forth in Domestic Relations Law § 240 (I-b)(3).
The Child Support Standards Act (the "CSSA") codified in section 240 of the Domestic Relations Law ("DRL") provides that the Court shall calculate the "basic child support obligations" and if the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, after considering ten enumerated factors, it must order the noncustodial parent to pay his or her pro rata share of the basic child support obligation. DRL § 240(f). The amount of child support derived from the implementation of the CSSA formula is presumptively correct.
As statute provides:
"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 parent's 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 amplitudes;
(3) The standard 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 noncustodial 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 such 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 (c) of this subdivision ( DRL § 240(I-b)(f) )."
In arriving at the "basic child support obligation", the Court must calculate the "combined parental income" and multiply it by the appropriate "child support percentage." Income is defined as "gross income as was or should have been reported on the most recent federal income tax return." DRL § 240(I-b)(b)(5)(1). There are required deductions from gross income for social security and New York City and Yonkers income taxes. In addition, the Court must consider the maintenance awarded for child support purposes.
Under the CSSA, the amount of child support owed to the custodial parent is determined by the non-custodial parent's income multiplied by a set percentage determined by the number of children for whom support is warranted. Where there are three children residing in the household with the same custodial parent, the applicable percentage of each parties' income under the CSSA is 29% ( DRL § 240(I-b)(b)(3)(I) ). Although the parties will share custody on a 50/50 basis, the more monied spouse - - here, Defendant - - is required to pay basic child support to the less monied spouse. See Al E. v. Joann E ,, 2017 NY Slip. Op. 50543 (Sup. Ct., Kings Co. 2017). In such a situation, the Court must first calculate basic child support according to the formula prescribed in DRL § 240.
The law is clear that "child support is determined by the parents' ability to provide for their child rather than their current economic situation. An imputed income is based, in part, upon a parents' past earnings, actual earning capacity, and educational background." Morrissey v. Morrissey , 259 AD2d 472, 473 (2d Dept. 1999). In determining a party's support obligation, the "court need not rely upon a party's own account of his or her finances," but may impute income based upon employment history, future earning capacity, educational background, or money received from friends and relatives. Mosso v. Mosso , 84 AD3d 757, 758 (2d Dept. 2011).
In the instant case, as discussed above, the Court concluded that Defendant's income should be set at $ 270,000 and Plaintiff's imputed income at $ 169,000. The first step in the child support calculation process is to arrive at the combined parental income - - here $ 439,000. That figure is then multiplied by the applicable child support percentage under the CSSA - - 29% for the three Children here, which amounts to $ 127,310 - - which is then allocated between the parties according to their share of the combined parental income. The parties pro rata share of the combined parental income is as follows: 61% for Defendant and 39% for Plaintiff. Defendant's child support obligation according to this formula would thus be $ 6,471.00 per month. That amount is substantially greater than the child support amount if the statutory cap of $ 148,000 in parental income is used - - $ 2,074.46 per month payable by Defendant.
Under the DRL, the Court is free to deviate from the strict application of the child care percentage to actual income if such a slavish adherence would prove unjust or inappropriate (See DRL 240 (I-b)(f) ). In light of the following factors, an application of the child care percentage to Defendant's actual income would be unjust or inappropriate here.
First, since each party will have the Children for, essentially, an equal period of time, the costs of maintaining them and each respective household should be roughly equivalent. In addition, the parties respective base incomes are similarly equivalent particularly once maintenance payments are considered. However, the Court does not accept Defendant's position that he should pay no child support whatsoever. After all, Plaintiff will be receiving only small maintenance payments for twelve months, and Plaintiff has the potential - - thus far unrealized - - of obtaining annual bonuses of up to 25% of his base salary. (Tr. at 44-45, 610, 670).
Accordingly, the Court concludes that Defendant should pay the child support amount calculated by employing the statutory cap of $ 148,000. As stated above, that monthly figure is $ 2,074.46. Such child support payments by Defendant shall commence on the first day of the month following entry of the Judgment of Divorce and will be due and payable on the first day of each month thereafter.
As far as add-on expenses are concerned, using Defendant's income as $ 270,000 and Plaintiff's imputed income of $ 169,000, Defendant shall be responsible for 61% of all statutory add-on expenses incurred for the Children, with Plaintiff responsible for 39% of them.
Equitable Distribution
The premise of Equitable Distribution Law is that "a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner, or homemaker." O'Brien v. O'Brien , 66 NY2d 576, 585 [1985]. "The Equitable Distribution Law reflects an awareness that the economic success of the partnership depends not only upon the respective financial contributions of the partners, but also on a wide range of nonenumerated service to the joint enterprise, such as home making, raising children, and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home." Price v. Price , 69 NY2d 8, 14 [1986].
Although equitable distribution does not necessarily mean equal distribution, the general rule calls for equal distribution of the marital assets unless the equities of an individual case require an unequal distribution. Connor v. Connor , 97 AD2d 88, 96 [2d Dept. 1983]. The basic premise of equitable distribution is that "modern marriage should be viewed as a partnership of co-equals . Upon the dissolution of a marriage, there should be equitable distribution of all family assets accumulated during the marriage and maintenance should rest on the economic basis of reasonable needs and the ability to pay. From this point of view, the contributions of each partner to the marriage should ordinarily be regarded as equal and there should be an equal division of family assets, unless such a division would be inequitable under the circumstances of the particular case. " Id. at 96 ; emphasis in original.
When distributing marital property, the trial court is accorded "substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances." Mahoney-Buntzman v. Buntzman , 12 NY3d 415, 420 [2009]. Thus, "[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." Michaelessi v. Michaelessi , 59 AD3d 688, 689 [2d Dept. 2009], quoting Saleh v. Saleh , 40 AD3d 617-618 (2d Dept. 2007).
In that regard, the Court notes that Plaintiff's assertion that equitable distribution of marital assets should be on a 60/40 rather than a 50/50 basis is meritless. While equitable distribution does not necessarily mean equal distribution ( Giokas v, Giokas , 73 AD3d 688 (2d Dept. 2010), and the Court has broad discretion to determine equitable distribution of marital property under the circumstances of the case ( Michaelessi v. Michaelessi , 59 AD3d 688 (2d Dept. 2009) ) it is axiomatic that most marital assets are to be divided on a 50/50 basis. See Scheinkman, NY Law of Dom. Rel. at § 14:58 at 800-801). The Court sees no reason to depart from that general principle here, particularly in view of the relative parity in the parties' income once imputed amounts are considered, and the relative dearth of marital assets to divide.
"In determining equitable distribution , the trial court is directed to consider statutory factors, including the income and property of each party at the time of the marriage, and at the time of the commencement of the divorce action, the duration of the marriage, the age and health of the parties, any maintenance award, and the nontitled spouse's direct or indirect contribution to the marriage, including services as a spouse, parent, wage earner and home maker," Loria v. Loria , 46 AD3d 768, 770 [2d Dept. 2007] ; DRL § 236 (B)(5)(d). Pursuant to DRL Section 236B (5)(d), the Court shall consider the following 14 factors in making equitable distribution of the marital property:
1) Income and Property;
2) Duration of the marriage and age and health of the parties;
3) Need of custodial parent to occupy or own the marital residence;
4) The loss of inheritance and pension rights;
5) The loss of health insurance;
6) An award of maintenance;
7) Direct and indirect contributions;
8) Liquid or non-liquid character of the property;
9) Future financial circumstances of the parties;
10) The difficulty of valuing marital assets;
11) The tax consequences to each party;
12) The wasteful dissipation of assets;
13) Transfer in contemplation of action; and
14) Any other factors.
Under the law of equitable distribution, there is a presumption that all property acquired by either spouse during the marriage is marital property. DRL § 236(B)(1)(c). Marital property is defined in DRL Section 236(B)(1)(c) as "all property acquired by either or both spouses during the marriage and before execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held."
Separate property is defined as "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse ...." DRL § 236(B)(1)(d). Separate property also includes "property acquired in exchange for the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse." DRL § 236(B)(1)(d)(3).
All of the factors listed in the statute have been considered as required by law.
As discussed above, the parties' parents have been generous to them, perhaps to a fault. The downside of this largesse, however is that during the marriage, the parties were not constrained to save and thus failed to accumulate any substantial assets. Their marital residences were invariably rentals, albeit expensive ones, and they accumulated relatively little - - in light of their earnings potential and given their educational background as well as some all too brief periods of Defendant's substantial earnings. Be that as it may, several marital assets are in dispute, and the Court finds that they should be equitably distributed as follows.
The marital assets fall into a few categories, some of which have been resolved in whole or in part, by agreement of the parties.
Retirement Accounts
During the course of the trial, on November 16, 2018 in open court, the parties reached a stipulation concerning the division of the parties' retirement accounts and Plaintiff's separate property claim with respect to them. (The "November 16 Stip."). The parties agreed that Plaintiff would receive as her separate property $ 70,000 from the Doble Le Branti Roth IRA titled in her name, subject to gains and losses from the date of the November 16 Stipulation, and the remaining retirement assets would be divided, in kind, on a 50/50 basis as of the date of the division (Tr. 11/16/18 at pp. 145-147). Such distributions and divisions shall take place no later than thirty days after the entry of the Judgment of Divorce.
Rejuvenan Stock
By letter dated June 11, 2017, Plaintiff's part-time employer Rejuvenan Global Health, Inc. ("Rejuvenan") with whom she had and, as of the date of trial, continues to have a consulting arrangement, advised Plaintiff that she "will be granted 30,000 shares of restricted common stock of Rejuvenan as incentive options. Moreover, in recognition of your past contributions and dedication to the company and its mission, one quarter of the grant, or 7500 shares, will vest immediately at the signing of the Consulting Agreement. The balance of the grant will vest monthly over the following 36 months upon each month of your continuous service." (Deft. Exh. G). Plaintiff testified at trial that she received the Rejuvenan stock and that rather than 7500 shares, 10,000 shares vested immediately pursuant to an oral agreement with an officer of Rejuvenan. Plaintiff advised Defendant that the 30,000 shares were worth $ 210,000, with one-third of them immediately vested. (Tr., 11/21/18 at 305-309). Soon thereafter, in August 2017, Plaintiff commenced this action for divorce.
The Rejuvenan stock which Plaintiff was entitled to receive and which vested with her before the Date of Commencement is clearly marital property. Not only was she entitled to receive such stock before the DOC, the basis for her receipt of it was work performed by her during the marriage. Moreover, Plaintiff herself provided evidence of its value. Thus, Defendant is entitled to 50% of 11,111 Rejuvenan shares (10,000 shares which vested on June 11 and 1,111 which vested in the two months thereafter) - - namely 5,555 shares.
However, as Plaintiff testified and as the June 11 Rejuvenan letter reflects, the Rejuvenan stock is "restricted" in some fashion (Deft. Exh. G; 11/21/18 Tr. at 145-147). The nature of such restriction was not adduced at trial. Although the Rejuvenan stock may not be capable of being sold at the present time, shares can presumably be transferred in kind. Accordingly, within thirty days of the entry of the Judgment of Divorce, Plaintiff shall transfer to Defendant 5,555 shares of the vested Rejuvenan stock that she received. If, however, due to some restriction, Rejuvenan stock cannot be divided or transferred from Plaintiff at the present time, Plaintiff is ordered to retain such stock and unless the parties otherwise agree, transfer such stock to Defendant as soon as she is permitted to do so, or liquidate it as soon as she is permitted to do so and pay to Defendant the proceeds of such sale net of transaction costs (e.g. brokerage commission and taxes). The residual Rejuvenan shares shall remain Plaintiff's separate property.
The $ 64,000 Provided to the Parties by Defendant's Father
In late 2015, Defendant had left his previous job and was looking for employment. Defendant's father then provided the parties with a series of four monthly checks in the amount of $ 16,000 each for a total of $ 64,000 in order to assist the parties in paying household expenses. All such checks were made payable to Defendant, and then deposited in the parties' joint checking account. That much is undisputed. The parties disagree, however, as to whether such $ 64,000 in checks should be characterized as a loan which the parties were and remain jointly obligated to repay - - and therefore a marital debt - - or, was, in essence, a gift which Defendant preferred to return but was not required to do so.
On the one hand, Defendant testified that he and Plaintiff always regarded the $ 64,000 as a loan; according to Defendant, at least one of the checks contained a note in the Memo section of the check which read that it was a "loan," and Defendant wrote a $ 64,000 check to his father in mid-February 2017 to repay him (Pl. Exh. 3; Tr. at 59-75). Plaintiff admits that Defendant "told me that he wrote his parents a check for $ 64,000 early in 2017, after he received his first - - his bonus from Black Rock. And he sent them the check" (Tr. at 138). When defendant's father presented the check for payment several months later, it was returned for insufficient funds due, according to Defendant, to Plaintiff's withdrawal of monies to pay the retainer for her first matrimonial counsel. (Tr. at 66-67).
On the other hand, as Defendant conceded, no evidence of indebtedness was ever produced; no promissory note or loan document was issued; the check or checks containing the "loan" notation were never adduced at trial, nor was Defendant's father called to testify. Moreover, and tellingly, although Defendant's father received the $ 64,000 check from the parties' account in mid-February, he did not attempt to negotiate it until late July 2017 - - days before the Date of Commencement, perhaps sensing that a divorce action was imminent. According to Defendant, when, prior to July, he asked his father why he had not cashed the check, his father responded "[d]on't worry about it. I will cash it when I cash it." (Tr. at 66).
In light of all the circumstances as detailed above as well as history of gift giving by the parents of both parties, the Court concludes that Defendant has not sustained his burden of proving that the $ 64,000 provided by his father was a loan rather than a gift. See GRP v. LBP , 41 Misc 3d 1233 [A], 2013 NY Slip op. 51965 (Sup Ct., Monroe Co. 2013). No written evidence of indebtedness was produced; the alleged lender - - Defendant's own father - - was not called to testify as to the bona fides of the purported loan; and Defendant's father did not make any effort to cash the repayment check for nearly six months - - from mid-February to late July 2017 - - and only deposited it shortly before the Date of Commencement and after Defendant left him and returned to New York from Florida, with a divorce action in the offing. (Deft. Test., Tr. at 570-580). Except for those events, and particularly in light of the parents' ongoing generosity, the $ 64,000 provided to the parties by the senior Mr. M. may well have remained the gift it was likely intended to be and Defendant's effort of "repayment" but a gallant gesture.
Accordingly, the $ 64,000 is not a marital debt requiring repayment by the parties jointly.
Motor Vehicles
The parties own two motor vehicles: a 2015 Infiniti QX60 driven by and in Plaintiff's possession, and a 2011 Jeep Grand Cherokee, driven and in Defendant's possession. (See Pl. St. of Proposed Disposition at 4; Deft. St. of Proposed Disposition at 2; Tr. at 632-634). The parties agree that each party should retain the vehicle in his or her respective possession but Plaintiff, perhaps motivated by the fact that a 2013 Infiniti would tend to be valued at a higher price than a 2011 Jeep, would be content with a simple even-up distribution. (Pl. St. at 4; Deft. St. at 2). However, since the cars are both marital property, an equalization of their values is called for.
Defendant alone offered testimony and introduced an exhibit concerning vehicle valuations. Defendant's Exhibit T, the Kelly Blue Book valuation of each vehicle, was admitted into evidence without objection (Tr. at 632). Defendant's Exhibit T reflects a value of $ 13,803 for the Jeep and $ 23,991 for the Infiniti.
In addition, as Defendant, uncontroverted, testified, the Infiniti has an outstanding debt of $ 595 and the Jeep $ 2,478. While Plaintiff appears to claim that the Infiniti is in need of some repairs (Tr. at 695-696), no evidence of that car's condition was adduced, and no repair estimates presented.
In view of the foregoing, the Court concludes as follows with respect to the vehicles: Plaintiff shall retain possession of the Infiniti, and if she is not currently the titled owner, such title shall be transferred to her within 30 days of the entry of the Judgment of Divorce. Plaintiff shall be solely responsible for the remaining debt on the Infiniti which, by now, is surely di minimus . Similarly, Defendant is to retain possession of the Jeep, and if he is not now the titled owner, such title shall be transferred to him within 30 days of the entry of the Judgment of Divorce. Defendant shall be solely responsible for the remaining debt on the Jeep. Finally, to equalize the value of the vehicles, Defendant is awarded a credit from Plaintiff in the amount of $ 5,094. Such amount shall be paid by Plaintiff to Defendant within 30 days of the entry of the Judgment of Divorce.
Bank and Brokerage Accounts Other Than Retirement Accounts
Little or no testimony or exhibits were adduced at trial concerning any marital non-retirement savings or brokerage accounts, and for good reason: given the parties proclivity to spend their funds and their parents' monies rather than engage in a savings program, few funds appear to have been accumulated. As far as the Court can discern, no testimony was elicited or documents introduced into evidence with respect to the DOC value of any such marital accounts. However, the parties respective Statements of Net Worth were admitted into evidence. (See Pl. Exh. 23, Pl's. Net Worth Statement dated 11/14/18, and Deft. Net Worth Statement, Deft. Exh. R, dated September 18, 2018).
The Net Worth Statements reveal little if any funds in separate checking and savings accounts maintained by each party: Plaintiff's accounts titled in her name and opened, according to her Net Worth Statement, post-DOC amount to less than $ 7200, and such accounts and their current balances shall remain her separate property. (Pl. Exh. 23 at 7-8). Similarly, Defendant's Net Worth Statement reflects a balance of $ 10,555 in an account titled in his name, which appears to have been opened post-DOC (Deft. Exh. R at 7); such account and its current balance shall remain his separate property.
While Plaintiff's Net Worth Statement does reflect DOC balances of approximately $ 60,000 in several joint checking account and savings accounts, no testimony was adduced at trial to show that such monies were expended for other than marital purposes; after all, the parties continued to live together and support themselves and their Children post-DOC, and in a commodious lifestyle in Rye, New York. To the extent that any balances remain in the joint savings, checking or other non-retirement accounts, such balances are to be equally divided between the parties within thirty days of the entry of the Judgment of Divorce.
The Children's 529 and UTMA Accounts
Pursuant to the Custody Stipulation, the parties have agreed to use these accounts for educational costs and expenses of their Children. See Custody Stipulation, Deft. Exh. N at pp. 15-16.
Security Deposit on the Former Marital Residence
Defendant testified at trial that when the parties moved into the former Marital Residence in Rye, they provided their landlord with a $ 12,000 security deposit. (Tr. at 682). The security deposit has not been returned, and Defendant continues to reside there. (Id. ). Plaintiff would nonetheless like a share of that deposit. (Pl. Br. at 34). Aside from the fact that Plaintiff did not establish that marital as opposed to separate funds were used to pay such deposit, the issue is not ripe for adjudication; the security deposit may or may not be returned, in whole or in part.
Furniture and Household Furnishings
In her Statement of Proposed Disposition, submitted shortly before trial, Plaintiff succinctly stated her position with respect to the disposition of the parties' personal property:
" Personalty : Other than the items specifically set forth in Schedule A attached hereto, which shall remain the sole and separate property of the Plaintiff, each party shall keep the household furnishings, artwork, jewelry and collectibles currently in his or her possession."
Pl. St. of Proposed Disposition, dated November 13, 2018, Deft. Exh. O).
At trial, Plaintiff did not contradict her position with respect to any item of furniture and furnishings other than to state that she had removed from the former marital residence some pre-marital items of furniture and installed them in her new residence. (Tr. at 246). For his part, Defendant did not challenge at trial that the items removed by Plaintiff were pre-marital and therefore her separate property, nor did he offer any testimony objecting to the proposed division set forth in Plaintiff's Statement of Proposed Disposition.
Accordingly, the Court concludes that each party shall retain the personal property, including the furniture and furnishings in their respective residences, currently in their possession as their separate property, except that with respect to the items listed on Schedule A of Plaintiff's Statement of Proposed Disposition (Deft. Exh O), Defendant shall transfer such items now in his possession to Plaintiff, and such items should be and remain Plaintiff's separate property. Such transfer shall take place no later than 30 days after the entry of the Judgment of Divorce.
2017 Tax Liability
Defendant testified at trial that there are federal taxes due in the amount of $ 1,550 with respect to the parties' joint 2017 federal income tax return. (Tr. at 712). While both parties agree that this is a "joint liability" (Tr. at 712; Post Trial Br. at 36), Plaintiff somehow maintains that Defendant should be compelled to pay the entire amount. The Court disagrees. The parties shall be responsible for this $ 1,550 joint obligation on a 50/50 basis.
Attorneys Fees
Plaintiff is seeking counsel fees from the Defendant. Plaintiff principally relies on the contention that she is the less monied spouse and is therefore, under DRL 237, entitled to an attorneys fee award. In light of the circumstances that obtain herein, Plaintiff's argument is meritless and she is not entitled to an attorneys fee award.
DRL 237 does provide that the Court may award counsel fees and related expenses to the less-monied spouse. As the language of § 237 reflects, the principal concern of the statute is prospective rather than retrospective; that is, the main objective of the statute is to assure that during the course of litigation, both parties are adequately represented such that one party's superior resources do not work to invidiously tip the scales of justice in his or her favor. As Section 237(a) states, "[i]n any [matrimonial] action or proceeding the court may direct either spouse ... to pay counsel fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regarding to the circumstances of the case and of the respective parties." (Emphasis added). Cases applying § 237 reflect this emphasis. See e.g. O'Shea v. O'Shea , 93 NY2d 187, 190 (1999) ( DRL 237(a) "is designed to reduce the economic disparity between the monied spouse and the non-monied spouse" so "that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet."); DeCabrera v. Cabrera-Rosete , 70 NY2d 879 (1987) ; Prichep v. Prichep , 52 AD3d 61 (2d Dept. 2008).
Such concern - - to assure adequate representation of the less-monied spouse - - is not in issue here. Plaintiff was ably represented by experienced matrimonial counsel and was provided with the resources to pay them. As Plaintiff testified at trial, her parents have funded her litigation expenses - - to the tune of hundreds of thousands of dollars (Tr. at 452-465). Although Plaintiff indicated that she would "like" to consider such counsel fee payments a loan (Tr. at 453-454), she conceded that she was never advised that her parents expected to be repaid, and proffered no evidence that the legal fee payments were anything other than a gift. The Court notes that the generosity of the parents of both parties with respect to payment of attorneys fees likely served only to prolong a litigation that could have and should have been amicably resolved some time ago.
Be that as it may, Plaintiff's attorneys fee application is infirm for other reasons as well. As discussed above, in light of the income imputed to Plaintiff, it is unclear whether she meets the threshold criteria as the less monied spouse to any significant extent. (See discussion supra at 6-13, 16-17). Moreover, Plaintiff failed at trial to adduce any competent evidence of legal work performed and time spent on her behalf. No invoices, billing statements or testimony from counsel was adduced, depriving the Court of the ability to evaluate the bona fides of her attorney fee application. Such lack of proof of services rendered, standing alone, is fatal to her claim. See, e.g. , McLane v. McLane , 209 AD2d 1001 (4th Dept. 1994) ; Osinan v. Osinan , 142 AD3d 978 (2d Dept. 2016) ; Nolan v. Nolan , 104 AD3d 1102 (3d Dept. 2013) ; Schultz v. Schultz , 309 AD2d 1020 (3d Dept. 2003). (In denying plaintiff's counsel fee application, the Court stated that "the only evidence regarding plaintiff's counsel fees is testimony as to the total amount owed and the amount she paid. Plaintiff failed to present any documentation as to the nature of the legal services provided, the amount of time spent or the reasonable value of those services.").
In the instant case, Plaintiff did not even provide the "total amount owed," much less a detailed explanation as to the services actually rendered by her several sets of counsel.
For all these reasons, the Court declines to grant Plaintiff any award for attorneys or other fees. Both parties shall bear their own fees and costs.
The Court has considered the additional contentions of the parties not specifically addressed herein and finds them to be without merit and not worthy of further comment. Plaintiff is directed to settle the Judgment in accordance with this Decision and Order within 30 days of the date of this Decision with notice of entry.
The foregoing constitutes the Decision and Order of this Court.