Opinion
50304/15
07-02-2019
W.S., Plaintiff v. A.S., Defendant.
Encl For Plaintiff: Harry Chiu Esq., 36 Richmond Terrace, Suite #202, Staten Island, NY 10301 For Defendant: The Yost Law Firm, 25 Hyatt Street, Suite #201, Staten Island, NY 10301 Defendant's Guardian Ad Litem: Gillen & Scali, PLLC, By William Gillen, 9201 4th Ave #7, Brooklyn, NY 11209 Attorney for the Children: The Law Office of Catherine Bridge Esq., 1358 Clove Road, Staten Island, NY 10301
Encl For Plaintiff: Harry Chiu Esq., 36 Richmond Terrace, Suite #202, Staten Island, NY 10301
For Defendant: The Yost Law Firm, 25 Hyatt Street, Suite #201, Staten Island, NY 10301
Defendant's Guardian Ad Litem: Gillen & Scali, PLLC, By William Gillen, 9201 4th Ave #7, Brooklyn, NY 11209
Attorney for the Children: The Law Office of Catherine Bridge Esq., 1358 Clove Road, Staten Island, NY 10301
Catherine M. DiDomenico, J.
Procedural History
By Summons and Complaint served on April 9, 2015, Plaintiff W. S. (hereinafter "Wife") commenced this action for divorce against Defendant A.S. (hereinafter "Husband"). Husband filed an Answer with Counterclaims on or about May 21, 2015. After numerous written and oral applications requesting a default judgment on his counterclaims, Wife replied to Husband's Answer on November 28, 2016 arguing that his counterclaims were frivolous.
The parties were married on September 8, 2000. There are two children of this marriage: A.S., Jr. (d.o.b. */**/01) and A.S. (d.o.b. */**/02). A.S. is the only child still subject to this Court's jurisdiction for the purposes of adjudicating custody and parental access. A.S. Jr. aged out of this Court's jurisdiction after the close of the trial record and while this Decision was being written. However, both children remain subject to this Court's jurisdiction for child support purposes.
On October 19, 2016, this Court issued a Pendente Lite Decision (Jud Not. No. 2). Temporary maintenance and child support were awarded in bi-weekly amounts of $1,372 and $871 , respectively. At trial, Wife proved that Husband failed to make a single payment towards maintenance and has only partially complied with his child support obligation. The October 19th Order granted Wife exclusive use and occupancy of the marital residence. Upon "actual receipt" of pendente lite support Wife was directed to pay the mortgage as well as additional expenses, however, she never received the funds allocated for those expenses. Wife's pre-trial application to sell the marital home was denied in the absence of a hearing and based on Husband's vehement objection. Sadly, while Wife and the children continue to reside there to date, this home has since become the subject of a foreclosure action based on Wife's inability to pay the mortgage.
Supreme Court Richmond County Index Number 135434/2017
However, Wife argues that this is a litigation tactic designed to garner sympathy in an attempt to reduce his support obligations. Wife further argues that Husband is keeping himself under-employed to avoid his support obligations.
On October 27, 2016, Wife made an application for a Temporary Order of Protection. She argued that Husband had been served with the Pendente Lite Order and refused to leave the home. Moreover, he had been acting erratically causing Wife to fear for her safety. Husband was incessantly praying "towards" or "over" her, despite repeated requests that he stop. Wife also found a "diary" or "journal" authored by Husband wherein he listed individuals and negative characteristics he attributed to them. Wife, the subject children, extended family, and friends were among the many individuals Husband targeted in his journal. After considering Wife's testimony, and reviewing the "journal", this Court granted several orders. First, a full Order of Protection was issued ordering Husband to stay away from Wife and the former martial residence. This Court also ordered that the children reside primarily with Wife, pendente lite.
When the present action was commenced Wife was represented by Mr. Leo Duval Esq. Once judicial intervention was requested, Mr. Duval was substituted by Ms. Ann Louise DePaolo, Esq. Ms. Depalo represented Wife throughout the pre-trial proceedings until July of 2017 when Ms. DePaolo was substituted by Mr. Harry Chiu Esq. Mr. Chiu represented Wife until the end of trial. Husband was initially represented by Ms. Valerie Camacho Esq. On or about November 7, 2016, Ms. Camacho moved to withdraw as counsel because Husband continued to take positions that were unsupportable by law (Mot. Seq. 001). This motion was granted without opposition. Husband remained self-represented until February 28, 2017 when Mr. Glenn Yost, Esq. was appointed pursuant to the Judiciary Law to represent him on the custody, parenting, and family offense aspects of this case. Husband remained self-represented on all financial issues. On June 12, 2017, Mr. Yost moved for the appointment of a Guardian Ad Litem ("GAL") for Husband to assist him in understanding the nature of this divorce proceeding (Mot. Seq. 008). This application was granted with Husband's consent. By Orders dated July 24 and 25, 2017, Mr. William Gillen Esq. was appointed to serve as Husband's GAL pursuant to the Judiciary Law.
The two children initially subject to this Court's custody jurisdiction (A.S. Jr. and A.S.) were represented by Ms. Catherine Bridge, Esq. until A.S. Jr. aged out on February 16, 2019. Ms. Bridge was appointed with Husband paying 80% of her original retainer of $5,000 and Wife paying the remaining 20%. However, as the litigation progressed, on her application, Ms. Bridge's appointment was converted to Judiciary Law as it became obvious that neither parent could pay the fees associated with her prolonged representation in this bitterly contested proceeding (Tr. 3/12/18, pg. 108).
By Order dated October 26, 2016, Dr. N.G. Berrill was appointed on consent to conduct a forensic evaluation pursuant to Judiciary Law § 722(c). After interviewing the parties, and the subject children, Dr. Berrill issued a written report on May 9, 2017. This report was received into evidence during Dr. Berrill's trial testimony on October 18, 2017 (Pl. Ex. 04). Dr. Berrill's recommendations and findings were considered by this Court in making its decision as explained more fully below.
The Trial
The parties' claims for custody, parental access, family offense, maintenance, child support, and equitable distribution were tried before this Court on October 5, 2017, October 19, 2017, January 22, 2018, March 12, 2018 and June 8, 2018. Husband's motion for an expedited trial on Wife's Family Offense claims was granted (Mot. Seq. 009). The trial began with testimony regarding this claim. Wife testified on his own behalf and introduced documents into evidence (PL. Ex.1-25). Husband testified on his own behalf and introduced documents into evidence (Def. Ex A-G). All counsel submitted questions to be considered by this Court at the in-camera examinations of A.S. Jr. and A.S. which were held on August 27, 2018. The transcripts of the in-camera examinations have been sealed by this Court. As Husband was self-represented for the financial aspects of his case, he was granted some latitude by this Court during trial relating to the form and substance of questions, responses and written submissions. See Wells Fargo Bank, N.A. v. Erobobo , 127 AD3d 1176 (2d Dept. 2015) ; See also Matter of Stephen W. v. Christina X. , 80 AD3d 1083 (3rd Dept. 2011) .
Written summations were filed by all parties at the close of the trial record. As Husband was self-represented on financial issues, he submitted two summations, one prepared by his attorney on parenting issues, and a second prepared without counsel on financial issues. Husband's Pro Se submission included various factual allegations that were not contained in the trial record. This Court has limited its review of Husband's summation to the issues, claims and proof addressed at trial. A summation after trial is not a proper vehicle to offer new evidence or raise claims that were not addressed during trial. See S.Z. v. B.V. , 58 Misc 3d 1206(A) (Sup. Ct. Rich. Cty. 2017) .
By Decision and Order dated March 12, 2018, this Court found that Wife had proven by a fair preponderance of evidence after trial that Husband committed the specified Family Offense of Harassment in the Second Degree ( Penal Law Sec. 240.26(3). A Final Order of Protection was granted to Wife mirroring the terms of the previous temporary order for a period of two years. This Order expires on March 11, 2020. Husband's filed a Notice of Appeal with respect to these orders. To date, this Court has not been advised as to any stay sought with respect to the same, nor any decision on the appeal.
Factual Findings
Plaintiff Wife.
Plaintiff Wife is 44 years old and is a survivor of thyroid cancer which required two significant surgeries. While she is currently in remission, Wife continues to struggle with several lingering illnesses attributed to this condition. She has a close and loving relationship with her parents and her siblings who she sees often. Wife graduated from a local public high school and earned some college credits. She met Husband in 1989 when they lived on the same block. They dated for a while, however, Husband was involved in another relationship at that time. Husband married and moved away. After his divorce from his first marriage, the parties began dating again in 1999. The parties were married on September 8, 2000. Wife was primarily a stay at home mother and homemaker during the marriage. Husband was the primary wage earner. Wife worked from time to time as a part time bartender and waitress. During this proceeding, Wife reentered the work force as a bookkeeper earning approximately $1,350 a month. She intends to return to college to secure her degree after the conclusion of this litigation.
Wife testified that at various times during the marriage she has been emotionally abused by Husband. She testified that she has endured demeaning, controlling and bizarre behavior that became particularly troublesome in or around 2014. Around that time, the party's marriage began deteriorating. Husband became increasingly jealous and accused her of having an affair. He also accused her on a regular basis of having an eating disorder. This was particularly hurtful to Wife because she had suffered from such a condition when she was young but had overcome it after many painful years of effort. Husband would also criticize Wife and point out her "deficiencies" which often left her in tears.
As their relationship continued to deteriorate, Husband presented Wife with a binder containing information related to her "problems" including an alleged eating disorder and a "midlife crisis." Throughout their marriage Husband played the role of amateur psychologist, diagnosing Wife with a litany of "problems" and offering strategies to solve them. Husband continues to view Wife as "emotionally vulnerable" (Tr. 10/19/17 pg. 159). Towards the end of their marriage, Husband became increasingly fixated on his belief that Wife was having an affair. Wife admits that she later did begin a romantic relationship with a man who was both a friend and co-worker of Husband. Wife argued that she did so because she grew tired and weary of having to listen to Husband's litany of complaints about her alleged shortcomings. Husband blames Wife and the affair for a number of things, including the breakdown of the marriage, the loss of his career, his current emotional state, and his alleged homelessness.
In 2015, Wife moved out of the marital bedroom and into the den. Wife ultimately installed a door and made it into a private bedroom for herself. At or around this time, Husband developed an increased interest in religion and began studying the Bible, particularly "spiritual warfare." Husband started to pray over Wife. While this behavior appeared innocent at first, it soon became obsessive. He would pray over her in the middle of the night, as she slept, and through closed doors. These prayers continued almost daily although Wife repeatedly requested that he stop. Wife also found evidence that Husband had had a key to the den where she slept and had been snooping through her private belongings.
During this proceeding, Wife discovered a "diary" or "journal" hidden in a marital vehicle. She was shocked to see her name as well as the names of their children, and many other family, friends and acquaintances listed in it. Below each name Husband wrote nouns and adjectives to describe each person. A few of the more alarming references included the terms "liar, betrayer" under Wife's name, and "pesky, needy" under one of the children's names. Under his own name, Husband wrote "angry and jealous" and seeks "revenge." Wife believes this protracted litigation, Husband's refusal to consent to a divorce, or to agree to joint custody, reflects his desire to exact revenge against her.
Wife seeks an award of sole custody of A.S. in this proceeding. Wife originally sought joint custody of the children and offered the same to Husband. However, she no longer believes that application to be practicable due to this Court's finding of domestic violence and Husband's pursuit of sole custody. Wife supports any visitation that A.S. (16) and Husband arrange. However, she believes that Husband should first take advantage of the access time that he has already been granted as he has not done so to date. Wife testified that she has no idea why Husband does not utilize the access that he has already been granted on his application (Tr. 10/19/17, pg. 145).
Defendant Husband
Husband is currently 47 years old. He has a history of routinely earning a six-figure salary in the securities industry and has extensive employment history as a stock broker. Although he worked long hours, he was always very involved with his children. At various times, he was coach of their basketball, baseball and soccer teams. In addition, as Wife often worked on the weekends, he would find interesting physical and educational activities to do with their sons, such as hiking.
While a parent's desire to engage in craft activities with his children would generally be commendable, the activities chosen by Husband were not always safe and appropriate. On one occasion, Husband decided to craft a ‘knife" and a "sword" with A.S. and A.S. Jr. after watching a "forging" television program. In Husband's opinion, this was not a dangerous activity since he did most of the work himself. However, Wife did not believe that crafting weapons was a good use of her children's time. Moreover, Wife had serious concerns about how these weapons were made. Husband and the children had 15 minutes' worth of instruction on the subject which consisted entirely of Google research. After this limited "training" they ran to Home Depot and created a makeshift forge with a sledgehammer, an anvil, files, and a blow torch. In Wife's view, the entire exercise was unsafe and inappropriate for the children (Tr. 10/19/17, pgs. 150-151).
Although Wife told Husband they should divorce many times throughout the marriage, Husband was shocked and surprised in 2015 when Wife stated that she no longer wanted to remain in the marriage. Husband testified that he found it increasingly difficult to talk to Wife. She would become angry and frustrated if he brought up an issue that was bothering him. At some point, Wife began dating someone who Husband claims was his "boss" at work. Wife alleges that this person was not Husband's boss, but rather his co-worker. According to Husband, Wife and her paramour "plotted" and succeeded in getting him terminated from his employment. Moreover, Husband claims the affair caused him great personal and professional humiliation within the Wall Street community which has hindered him from finding substitute employment. Wife's actions left Husband hurt, angry, humiliated and confused. Husband testified that he may never recover from this trauma.
With respect to the "journal" Wife found so alarming, Husband claims that he prepared it as part of his participation in an Alcoholics Anonymous ("AA") program. He testified that his sponsor suggested that he record his feelings towards people in a journal as part of the "twelve steps." However, Husband claims that the words written under each person's name such as "angry, needy, jealous or revenge" were not his words. Rather, his sponsor allegedly dictated them to him. In any event, and despite his admitted participation in an Alcoholics Anonymous program, Husband staunchly denied abusing alcohol or being an alcoholic. In fact, he claims that he rarely drinks. When asked why he would attend regular AA meeting multiple nights a week and avail himself of a sponsor if he was not in need of abstinence support, he testified that he used the tenets of the program in a spiritual and emotional way. Despite his complete denial of having a problem with alcohol, Husband testified that he has "relapsed" a few times since entering the program (Tr. 10/19/17, pgs. 179-180).
Husband claims that since he was removed from the home in October of 2016, his children have been suffering. This protracted custody battle has made it worse for them. According to Husband the children appear conflicted and sad, and their academic performance has declined, since this action started. However, no evidence was offered at trial to substantiate these claims which were denied by Wife. Husband argues that he is better able to provide structure and meals for them. Husband believes this Court should restore him to the former marital home to be reunited with the boys, and Wife if she chooses to live there. Husband argues that this Court has no authority to award Wife exclusive use and occupancy of the home or to direct him to pay support. He further claims, inter alia, that this Court has denied him due process and has created a power imbalance between the parties herein by granting interim Orders in favor of Wife.
Regarding his claimed homelessness, Husband told Dr. Berrill he has no idea why he was "kicked out" of his house and has no interest in renting an apartment or establishing an alternative residence. He demands to move back into his house and live with his family. He has reiterated this position throughout this proceeding despite Wife's clear statement that there is no chance of reconciliation (Pl. Ex. 4, p. 18). Husband has repeatedly argued that they should all be restored to the former marital home to live together, rather than having it sold or otherwise distributed.
C. Subject Child A.S..
The subject children of this marriage were interviewed in camera by this Court. However, since the date of that examination, A.S. Jr. aged out of this Court's jurisdiction for custody and parental access purposes. Therefore, this Decision examines what parenting arrangement is in A.S.'s best interests only, although A.S. Jr. is mentioned herein where relevant.
A.S. is currently 16 years old and presents with no special needs. This Court finds that his academic performance in a private Catholic high school has remained strong while in the de-facto custody of Wife, despite Husband's claims to the contrary. A.S. has lived with his mother and his older brother A.S. Jr. since Husband was ordered to vacate the marital home. He loves both of his parents. He speaks to his father on occasion, but only sees him sporadically. He would like to see his father more although Husband failed to avail himself of the parenting time granted to him. Visitation is currently effectuated through direct communication between Husband and A.S. due to his advanced age. Father's claimed homelessness remains a complicating factor as A.S. is forced to visit with his father in the community, at his office, or in his car. A.S.'s preferences with respect to both parents are preserved in the in-camera transcript that has been given serious consideration by this Court. His attorney has advocated that he continue living in the care and custody of Wife and with his older sibling A.S. Jr.
Grounds for Divorce
In her Verified Summons and Complaint, Wife requests a divorce claiming the parties' marriage has broken down irretrievably for a period of six months pursuant to DRL § 170(7). (Jud. Not. 1). Wife's ground for divorce has been a point of contention throughout this proceeding. Husband steadfastly refused to agree to a divorce on any grounds. Moreover, Wife credibly testified that, when she initially indicated that she wanted a divorce, Husband stated that he would "rather set himself on fire" than consent to a divorce (Tr. 10/19/17, pg. 120).
Husband refused to sign the Preliminary Conference Order until it indicated that grounds were unresolved. In fact, Husband fought the issue of grounds for over a year, ultimately demanding a trial on the ground of cruel and inhuman treatment based on Wife's adultery. Despite this demand, Husband woefully failed to establish the high burden necessary to establish the ground of cruel and inhuman treatment. See Palin v. Palin , 213 AD2d 707 (2d Dept. 1995) . Husband's refusal to concede the grounds for the divorce, or to acknowledge that it is not legally possible to compel a spouse to remain married, has unduly complicated and unnecessarily delayed these proceedings. See Culen v. Culen , 157 AD3d 930 (2d Dept. 2018) .
DRL § 170(7) permits a party to get divorced without the consent of the other spouse on a showing that the marriage has broken down irretrievably for a period of at least six months preceding the commencement of the action. One spouses' testimony, given under oath, is sufficient to satisfy the statute as a matter of law. See Hoffer-Adou v. Adou , 121 AD3d 618 (1st Dept. 2014) . As one spouses' testimony is enough as a matter of law, there is no valid opposition and no right to a trial. However, DRL § 170(7) is available only after all ancillary issues in the divorce case are resolved or otherwise adjudicated.
On April 7, 2016, this Court heard credible testimony under oath from Wife regarding the irretrievable breakdown of the parties' marriage. Summary Judgment on the issue of grounds was granted to Wife. However, the granting of a Judgment of Divorce was held in abeyance until all remaining issues in this trial were adjudicated or resolved, although resolution was not practical because Husband refused to settle a single issue in this case. The testimony offered by Wife during this trial substantiated her claim that the parties' marriage had broken down irretrievably.
Custody/Parental Access
Both parents seek an order of sole legal and physical custody of A.S. Wife initially indicated that she would consent to joint custody, however, when Husband rejected this suggestion she amended her proposed disposition to seek sole custody. At trial, both parties attempted to show that they were the more fit custodial parent. To this end, both parties testified to a litany of events that occurred during their relationship and throughout this litigation. Many of these incidents were not material to this Court's determination of custody and parental access. Rather than dignify each incident between the parties, this Court discusses herein only those significant findings of fact that weighed most heavily in this Decision.
When determining an appropriate custodial arrangement, the primary concern for the Court is the best interests of the children. See Matter of Islam v. Lee , 115 AD3d 952 (2d Dept. 2014) . There is "no prima facie right to custody of the child in either parent." DRL § 70[a] ; DRL § 240 [1][a]. When determining custody, the Court must consider the "totality of the circumstances" including the relative fitness of the parties and quality of their home environments. See Matter of Blanc v. Larcher , 11 AD3d 458 (2d Dept. 2004) . Factors to be considered include "the quality of the home environment, the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent." See Salvatore v. Salvatore , 68 AD3d 966 (2d Dept. 2009) ; See also McGovern v. Lynch, 62 AD3d 712 (2d Dept. 2009) . The preferences of the subject children, while not determinative, are another factor to be considered by the Court, especially when the child is of advanced age and maturity. See Matter of Newton v. McFarlane , 2019 NY Slip Op 04386 (2d Dept. 2019) ; See also Matter of Xiomara M. v. Robert M. , 102 AD3d 581 (1stDept. 2013) . The weight to be afforded to each of the various factors is within the discretion of the trial court and requires an evaluation of the testimony, character and sincerity of all the parties involved. See Bourne v. Bristow, 66 AD3d 621 (2d Dept. 2009) .
At the time of the forensic interview, Wife told Dr. Berrill she was open to a "joint custodial arrangement" as she would like to have Husband participate in making important decisions for the children. Husband told Dr. Berrill that joint custody was not possible absent a reunification of the family. Accordingly, he has requested an award of sole custody. Wife now seeks an award of sole custody after trial. Regardless of either parties' position, this Court finds that a final award of joint custody is not a viable option where, as here, the relationship between the parties is too acrimonious to support such an arrangement. See Bliss on behalf of Ach v. Ach , 56 NY2d 995 (1982) . Joint custody is inappropriate where the parties are antagonistic towards one another and have demonstrated an inability to cooperate and co-parent on matters concerning the child. See Matter of Lawrence v. Davidson , 109 AD3d 826 (2d Dept. 2013). Accordingly, the Court is faced with the difficult determination of which parent is the more suitable custodial resource for A.S. In making this determination the Court has considered several factors detailed below.
a. Emotional Stability/General Fitness to Parent
Neither parent has been the subject of any child protective proceedings, nor credible allegations of abuse or neglect. Moreover, neither parent has a physical or a diagnosed mental limitation that would render them unfit as a general proposition to be a custodial parent. However, some behaviors that were exhibited by Husband throughout these proceedings give rise to concerns regarding his emotional stability, temperament, and general fitness to parent.
Defendant Husband who was self-represented on financial issues, submitted numerous inappropriate and frivolous filings to this Court. While properly sworn and notarized, and designed to appear as pleadings, Husband's "motions" and "opposition papers" rarely addressed relevant legal issues. Rather, Husband offered lengthy and rambling manifestos setting forth his personal view of these proceedings, his Wife, the United States Constitution, this Court and court staff. He served on Wife, and filed with this Court, various documents wherein he repeatedly asserted "his right" to remain married to Wife, to be restored to "his home", to have "his family" reunited and similar perceived entitlements. Husband's writings, disguised as legal filings, evidence his unshakeable view that his rights as a husband and father are somehow superior to those of Wife and his children and that he cannot be the subject of a divorce without his consent. This pattern of inappropriate use of the judicial process continued in Husband's pro se summation after trial, wherein he argues that the Court violated his constitutional rights by issuing the kind of decisions and orders rendered routinely in every matrimonial proceeding.
In this regard, Husband repeatedly challenged the legal authority of this Court to preside over this proceeding, to grant a divorce and thereby "destroy" his family, to grant Wife exclusive use and occupancy of "his" home, to order pendente lite child and spousal support, or to take any other action designed to dissolve this marriage. He further argued, for example, that by granting routine orders of support, this Court was "tyrannical" and granting Wife "absolute power" over him in this case. Husband's behavior in this proceeding was addressed by this Court to no avail in both written decisions and on the trial record on several occasions. (See, e.g., Ct. Ex. 2). Notwithstanding this Court's attempts to explain the applicable substantive and procedural laws, Husband's Pro Se summation contends that this matter is an "open children and family crime occurring where a judicial proceeding has unfolded " (S. Financial Summation, pg. 2). Husband further erroneously maintains that the purpose of Article 8 of the Family Court Act, pursuant to which this Court issued Orders of Protection against him, is not to ensure the safety of impacted individuals but to facilitate a "remedy towards reconciliation or conciliation" (S. Financial Summation, pg. 4).
Husband's bizarre behavior was not limited to his Court filings. Husband testified that he joined Alcoholics Anonymous and attended "AA" meetings even though he drank alcohol very infrequently and did not feel at any time that he had a drinking problem (Tr. 10/19/17, pg. 165). In a similar vein, Husband testified that he routinely attended couple's marriage therapy, without Wife who refused to go, once a week for a year. (Tr. 10/19/17, pgs. 187-188). He further testified that after watching a television program about forging weapons he created a makeshift blacksmith shop in his garage with a blowtorch and attempted to forge weapons with his children. Finally, after reading a book on "spiritual warfare" Husband decided that he would profess his love and pray aloud towards Wife daily for a two-year period, despite "two or three dozen" requests that he stop (Tr. 10/19/17, pgs. 123-124). This "prayer" would begin at 5:30 A.M. when Wife was sleeping (or was pretending to sleep) and continue loudly through her closed bedroom doors. While each of these actions may seem innocuous alone, when considered together they gave both Wife, the Forensic Evaluator, and this Court concern regarding Husband's emotional status. It was this erratic behavior which convinced this Court to grant Husband's court appointed attorney's application for the appointment of a Guardian Ad Litem on Husband's consent. (see SFO dated 7/25/17).
While Wife has raised considerable concerns regarding Husband's sometimes bizarre behavior, and indicated that it scares her, she has not raised any significant concerns about Husband's general ability to visit with the subject children. She has not alleged that they are unsafe in his care or that she fears for their wellbeing. In fact, she supports increased contact between Husband and the children. While Dr. Berrill shared Wife's position that Husband's behavior was odd, he agreed that Husband did not pose a danger to his children. However, Dr. Berrill's diagnostic impression of Husband was that he presented with "histrionic, narcissistic and obsessive-compulsive personality features" (Tr. 10/19/17 pg. 41).
Wife believes that Husband loves his children but contends that his obsession with the end of the marriage and his refusal to accept that there is no possibility of reconciliation makes it impossible for him to move forward in his life. Wife also argues, and Husband admits, that his claimed current lack of housing is not suitable for A.S. to have overnight visitation (see below). Upon review of the record, this Court finds that Wife is far more emotionally stable than Husband and better suited to support A.S.'s emotional and intellectual needs and to better provide for his general welfare.
b. Primary Caretaker
There is no doubt that Husband was heavily involved with their upbringing when the family was intact. However, as Husband was always the primary wage earner, he worked outside the home leaving Wife as the parent primarily responsible for the care of the children. She credibly testified that she cooks for A.S. or otherwise ensures that he eats, assists him with his homework, drives him to extracurricular activities and is assisting him prepare for college. In contrast, as pointed out by A.S.'s attorney, Husband's relationship with A.S. is more "casual in the sense that either he would contact him, or vice versa, and they would schedule a time to meet every now and then without any prearranged regularity" (AFC Summation, p. 4). The fact that Wife has established herself as A.S.'s primary caretaker, and moreover that he has been doing well in her care, has been given considerable weight in this Court's custodial determination. See Matter of Yu Chao Tan v. Hong Shan Kuang , 136 AD3d 933 (2d Dept. 2016) .
c. Domestic Violence
On Husband's application, this trial commenced with testimony relevant to Wife's application for an order of protection. After all counsel presented evidence relevant to these events, and summations and argument was considered, this Court found that Wife established by a fair preponderance of the evidence that Husband had committed the Family Offense of Harassment in the Second Degree as set forth in Penal Law § 240.26. After making that finding, this Court proceeded to determine that an appropriate disposition was a two-year Final Order of Protection issued in favor of Wife subject to Orders of this Court and subsequent orders of the Family Court. This Order of Protection will expire on March 11, 2020. The findings of this Court are set forth in a written Decision and Order after trial dated March 12, 2018. This Court takes judicial notice of this Order and has given some weight to the findings therein when making its custody determination herein.
d. Status Quo
A.S. has resided with his mother and brother throughout the course of this proceeding. He has a strong loving relationship with both of them. He has had continuous telephone contact with his father. However, visits have been sporadic. He continues to do well academically and there have been no incidents causing this Court to be concerned about his safety or welfare if he continued to live with his mother. In contrast, throughout the course of this proceeding, Husband has claimed that he has no stable home and resides in his car or on friend's couches (Tr. 5/17/18 pg. 9). A.S. also enjoys spending time with his maternal grandparents and the large extended family on Mother's side who he sees quite often at his house. After considering A.S.'s stated wishes, and the fact that he has flourished in Wife's care, the benefit of continuing the current physical residency order has been given some weight by this Court. See Matter of Peroglu v. Baez , 54 AD3d 416 (2d Dept. 2008) ; See also Matter of Moran v. Cortez , 85 AD3d 795 (2d Dept. 2011) .
e. Stability (Financial/Housing)
Wife and A.S. continue to reside in the former marital home with A.S. Jr. Pursuant to this Court's Order dated October 19, 2016, Wife was awarded $871 in child support and $1,372 in maintenance on a bi-weekly basis. Wife was ordered to pay the mortgage on the home "upon her actual receipt" of the above support awards. Wife admits that Husband has made partial payments towards his child support obligation, however, he has not made a single payment towards maintenance. As of June 8, 2018, Husband owed approximately $58,996 in temporary maintenance arrears (Tr. 6/8/18, pg. 47). Wife credibly testified that Husband's failure to comply with this Court's Orders regarding pendente lite support rendered her unable to pay the mortgage. The home is now in foreclosure as the mortgage payments are over $80,000 in arrears (Tr. 6/8/18, pg.31). This Court has no reason to believe that this situation has improved since the trial record closed. Accordingly, it is very likely that the former marital home will not be available for Wife and the children to reside in much longer. In that case, Wife has indicated that she intends to move back in with her parents until she can garner enough funds to reestablish a permanent residence.
Husband argues that he could not comply with his court ordered child support and maintenance obligations. He testified that he has made partial child support payments, representing ninety percent of his take home income. Accordingly, Husband argues that he has very little income left to support himself. As a result, Husband claims to be homeless since Wife was granted exclusive use and occupancy of the former marital home. Husband further claims that he lives in his car parked at parks and other public locations and that he sometimes sleeps on the couches of various friends and family. Husband claims that he showers at the gym. Husband blames his alleged inability to secure employment equivalent to that which he enjoyed during the marriage on Wife's affair with his co-worker and the damage it caused to his reputation.
While this Court has no doubt that Wife's infidelity caused tremendous pain and embarrassment to Husband personally and professionally, his testimony regarding the effect it has on his ability to earn income is not persuasive. First, Husband credibly testified as to his impressive educational background, his extensive professional experience working at various Wall Street firms, his continuing professional licenses and his current position as manager of a securities firm. Cleary, an extramarital affair by Wife commenced four years ago has not prevented Husband from obtaining gainful employment in the securities industry as a whole. While this Court in no way condones Wife's affair and understands why Husband was unable to continue working alongside Wife's paramour, it does not follow that Husband will never be able to obtain substitute employment at a salary commensurate to his experience.
Second, this Court is not convinced that Husband is being truthful about his current compensation. Husband's testimony on the subject was not credible. Husband would have this Court believe that he reports to work on a full-time basis unsure as to what his hours are, how much money he will be paid, or even when (or if) he will be paid. Furthermore, even with all these claimed uncertainties, he still manages to pay child support on a regular basis but not maintenance. Wife argues that Husband's deliberate failure to pay maintenance is ongoing punishment for her infidelity.
Third, and perhaps more importantly, Husband's claims of chronic homelessness are deeply troubling to this Court. Wife argues he is not homeless as evidenced by the fact that he continues to hold an employment position which requires him to dress professionally and maintain a certain level of hygiene and appearance necessary to entertain clients and colleagues. Wife argues that this would be impossible for him to do if he was living in his car for over three years. Likewise, his appearance in Court does not support his claims of homelessness as he always appears well dressed and well groomed. Whether Husband's alleged homelessness is a litigation tactic to reduce potential support awards or an effort to portray himself as victim, it is not justified by the trial record. However, as this Court has no information as to Husband's true living situation, his claimed homelessness precludes an award of custody or overnight visitation.
In contrast, Wife has taken steps to improve her financial situation throughout this proceeding. When this Court issued its pendente lite order, it imputed the sum of $10,000 to Wife representing her employment as an "off the books" bartender. Now, in addition to her work as a bartender, she also works two part time jobs as a bookkeeper earning approximately $1,350 a month. It is telling that although Husband has a superior earning potential than Wife, she has taken more steps than Husband to secure adequate employment.
For all these reasons, Wife presents as the parent better able to offer financial stability to A.S. She has been the parent providing stability and guidance for A.S. and A.S. Jr., and she has maintained a lifestyle as close to what they have previously enjoyed as possible, even to the point of borrowing money to keep them in private school. In contrast, Husband has accepted a position at an allegedly drastically reduced salary and has not supplemented that income with additional employment. Moreover, he did not offer any credible testimony or evidence as to any specific efforts he has made over these years of "homelessness" to seek a higher paying position. Notably, while Husband has repeatedly asked that this Court return him to the former marital home, no mention is made of the impending foreclosure and the imminent loss of that property due to his failure to pay maintenance. Husband's claims of lack of stable housing, and his failure to explain any efforts made to alleviate this condition, have been given substantial weight by this Court.
f. The Forensic Evaluator
During these proceedings, a forensic evaluation was conducted by Dr. N.G. Berrill. The recommendation of the Forensic Evaluator was a factor considered by this Court in making its custody determination. "While the recommendation of a court-appointed evaluator is not determinative, it is a factor to be considered and is entitled to some weight." Matter of Doyle v. Debe , 120 AD3d 676 (2d Dept. 2014) .
By Order dated October 26, 2016, Dr. N.G. Berrill was appointed to conduct a forensic evaluation in furtherance of the issues of custody and parental access. His report dated May 7, 2017, was entered into evidence without objection (Pl. Ex. 4). Dr. Berrill testified before this Court on October 19, 2017. All counsel stipulated that Dr. Berrill was an expert in the field of "forensic psychology." Both parties cooperated with the forensic evaluation, which was conducted in an extensive, scientific format detailed on the record, and in the report.
Dr. Berrill recommended that A.S. and A.S. Jr. remain living with their mother with near equal time awarded to Husband. Both children reported to Dr. Berrill that they speak to their father frequently, and that their mother does not try to dissuade them from seeing him. As A.S. Jr. has since aged out of this Court's jurisdiction for parenting purposes, the remainder of his disclosures to Dr. Berrill are omitted from this decision. A.S. prefers a less rigid schedule because he is busy with school, extra-curricular activities, sports, and friends. Dr. Berrill recommended that A.S.'s schedules should be strongly considered when determining parental access.
In his report, Dr. Berrill stated that "neither parent emerges as necessarily superior to the other parent" (p. 26). This conclusion was based primarily on the subject children's statements that they preferred to remain neutral in this litigation, that they loved both parents, and that both parents treated them well. At trial, Dr. Berrill provided greater insight into his observations. He indicated that there were certain allegations which he was not made aware of that would have affected his professional recommendations. For example, he would have liked to "know more" and would have asked "a lot of questions" about Husband's journal entries, particularly the references to the children and the word "revenge." He was puzzled why, if Husband never identified as an alcoholic, he would attend Alcohol Anonymous meetings and subscribe so devotedly to their teachings. Dr. Berrill also acknowledged that, given Husband's alleged chronic state of homelessness, it was not a realistic expectation that A.S. would be able to reside with him, or even stay overnight. Moreover, Dr. Berrill noted that given Husband's claimed desire to have overnights with his sons, and spend as much time as possible with them, "it would have made sense to rent some kind of apartment or locate a family or relative member that would permit him to stay on a semi-permanent basis with them so he could demonstrate that he had a place for the boys to sleep if he was granted overnight visits’ (Tr. 10/19/17, pp. 18-19).
This Court agrees with Dr. Berrill that it is important that Husband visit with A.S. and finds that the parenting schedule set forth below will provide consistent and significant parental access to both the custodial and non-custodial parent. In making its custody and parental access decision herein, this Court has given significant weight to the thorough report and testimony of the forensic evaluator. Matter of Wilson v. Bryant , 143 AD3d 905 (2d Dept. 2016) ; See also, Matter of Mondschein v. Mondschein , 122 AD3d 636 (2d Dept. 2014) .
g. The Attorney for the Subject Children
The position of the subject children's attorney was considered by the Court. See Matter of Guiracocha v. Amaro , 122 AD3d 632 (2d Dept. 2014) ; See also Matter of Conway v. Gartmond , 108 AD3d 667 (2d Dept. 2013). At trial, the attorney for the then two subject children established that both children wanted to see their father on a more frequent and regular basis. They understood there was a Court Order from the early stages of this litigation directing their parents to devise a liberal parenting schedule that considered their schedules. Although such a parenting schedule was agreed upon by their parents, Husband failed to see them on a regular basis. To "save them" from unnecessary stress and pressure, Husband decided to "leave it up to the boys" to decide when they would see him. This ultimately evolved into an informal arrangement resulting in only sporadic and occasional visits. Husband admitted to many weeks he did not see the boys at all. While he would call or text them, this is not as meaningful as being in their presence.
In her summation after trial, the attorney for the subject children argues that Wife should be awarded sole legal and physical custody. She argues that Husband's lackadaisical approach to seeing A.S. Jr. and A.S. "while satisfactory to the children, does not rise to the level needed to guide and support teenagers" (AFC Summation p. 3). The children's attorney further argues that A.S. is 16 years old, is very busy with school and preparing for college, and therefore should be permitted to make his own access schedule with his father. (See AFC's Summation dated 11/15/18). The subject child's testimony, his attorney's articulation of his position, and Husband's sad decision to forgo weeks of court ordered parenting time with A.S. (and A.S. Jr.) has been given substantial weight by this Court. See Matter of Hall v. Hall , 118 AD3d 879 (2d Dept. 2014) . The subject child's position, as articulated by his attorney, was particularly meaningful. See Matter of Manfredo v. Manfredo , 53 AD3d 498 (2d Dept. 2008) .
h. In Camera Examination
The child A.S.'s wishes were also considered by the Court. While not determinative, a child's expressed preference is a factor to be considered by the Court "particularly where the attorney for the child recommend[s] that the child's wishes be given weight, and where the [in camera] interview demonstrates the child's level of maturity " Matter of Ivory B. v. Shamecca D.B. , 121 AD3d 674 (2d Dept. 2014) . As A.S. Jr. was not yet 18 at the time, both he and A.S. appeared for an in-camera examination on August 27, 2018. Both children's testimony was ordered "sealed" by this Court on that date.
While not disclosing the details of the in-camera examination, A.S. has made his positions clear. He loves his father but is happy and comfortable living with his mother and his brother. He stressed that he has a full schedule that does not support a formal, rigid visitation schedule. Due to his advanced age, and his level of maturity, the subject child's position in this matter has been particularly meaningful and has been afforded "great weight." See Matter of McDonald v. Thomas , 154 AD3d 763 (2d Dept. 2017) .
i. Access to Siblings
A.S. remains subject to the custody/visitation jurisdiction of this Court. A.S. Jr. is eighteen and continues to reside with Wife and A.S.. As A.S. Jr. has chosen to reside with Wife, an award of custody of A.S. to Husband would separate the siblings and burden their ability to see each other. Generally, it is not preferable to separate siblings from one another. See Mohen v. Mohen , 53 AD3d 471 (2d Dept. 2008) ; See also, Matter of Luz Maria V. , 23 AD3d 192 (1st Dept. 2005) . This factor has been given some weight in this Court's custodial determination.
j. Ability to Foster a Relationship with Non-Custodial Parent
Among the factors considered in making this custody determination, this Court has considered which parent presents as better able to facilitate and foster a meaningful relationship between the subject child and the non-custodial parent. See Matter of Lawler v. Eder , 106 AD3d 739 (2d Dept. 2013) . "One of the primary responsibilities of a custodial parent is to assure meaningful contact between the child and the noncustodial parent." Alvarez v. Alvarez , 114 AD3d 889 (2d Dept. 2014) . In evaluating A.S.'s best interests, this Court has given substantial time and thought to "the effect that an award of custody to one parent might have on the child's relationship with the other parent." Bliss on behalf of Ach v. Ach , 56 NY2d 995 (1982) .
After considering the foregoing, and the recommendations of the Forensic Evaluator, this Court finds that Wife presents as the parent more likely to foster a relationship between A.S. and Husband. See Matter of David C. v. Laniece J , 102 AD3d 542 (1stDept. 2013) ; See also Matter of Cisse v. Graham , 120 AD3d 801 (2d Dept. 2014) . Dr. Berrill noted that Wife did not present as interested in limiting contact between A.S. and his father. To the contrary, she presented as flexible and appreciated A.S.'s need to have an "enduring and substantial" relationship with both parents. Husband's claims of parental alienation were not substantiated at trial. To the contrary, Wife has repeatedly indicated a credible desire to foster a relationship between the children and their father. Notably, she initially sought an award of joint custody until Husband insisted that he be granted an award of sole custody.
Custody of A.S.
After considering all the relevant factors indicated above, this Court finds that, on balance, Wife is far more capable to address the subject child's social and intellectual needs and general wellbeing. See Rosenberg v. Rosenberg , 145 AD3d 1052 (2d Dept. 2016) . Moreover, Wife is the parent more capable of providing stability for A.S., both financially and emotionally. See Klat v. Klat , 176 AD2d 922 (2d Dept. 1991) . Perhaps more importantly, it is A.S.'s unambiguously stated desire to continue residing with his mother as advocated by his counsel and recommended by Dr. Berill. See Cook v. Cook , 142 AD3d 530 (2d Dept. 2016) , See also Matter of McDonald v. Thomas , 154 AD3d 763 (2d Dept. 2017) .
After consideration of the above factors, and considering the fact that Wife presented as the more credible witness at trial, an award of sole, legal and physical custody to Wife is hereby granted. The Court finds that an award of sole custody to Wife is in the subject child's best interest. See Matter of Clarke v. Wiltshire , 145 AD3d 776 (2d Dept. 2016) ; See also, Patanella v. Keveney , 145 AD3d 686 (2d Dept. 2016).
In furtherance of this award of sole custody, and the resulting responsibility as the custodial parent to foster the child's relationship with the non-custodial parent, Wife is hereby directed to confer with Husband on all issues relating to the children's, education, religion and medical matters. That communication may be effectuated by any means, but email or text messages are encouraged to lessen the amount of hostility between the parties. Wife shall, however, have final decision-making authority with respect to these and all other major issues after considering Husband's position.
Each party shall retain authority to make day to day decisions while they are with A.S. Both parents shall have independent access to the child's medical and educational records and to their medical providers and educators. Each parent shall be responsible for securing said information on their own. Both parties shall be entitled to attend all school, extracurricular, sporting and significant events in the subject child's life, at his or her own expense. Husband shall have reasonable telephone contact with A.S. and may contact A.S. directly to effectuate the same.
Parenting Time with Husband
While Wife has been granted sole legal and physical custody with final decision making, this does not end the Court's analysis. Husband has a presumptive right to meaningful and reasonable access to his child, and Wife is in favor of A.S. having regular and consistent access to his father. While this Court would be inclined to grant Husband overnight visitation, his prolonged claims of homelessness present a barrier to a schedule of overnight visitation at this time. Accordingly, this Court is constrained to limit Husband's visitation with A.S. to day visits. Should Husband's housing situation become stabilized such that it is appropriate for overnight visitation, he is encouraged to seek such relief in Family Court or any other court of competent jurisdiction. For now, however, Husband shall have visitation alternate Saturdays and Sundays from 11:00 A.M. to 7:00 P.M. as well as every Wednesday from 5:00 P.M. until 8:30 P.M. It is this Court's hope that Husband will avail himself of this schedule in additional to whatever additional visitation is agreed upon between him and Wife after considering A.S.'s schedule.
Although a younger child's holiday schedule would generally include school holidays such as President's Day, given A.S.'s age (16 going on 17), only major holidays are included below. Parenting time shall commence at 11:00 and end at 6:00 p.m. If a conflict occurs between the normal parenting schedule and the holiday visitation schedule, the holiday visitation schedule will supersede normal parenting time.
Mother's Day shall always be with Mother
Father's Day shall always be with Father. Thanksgiving: even years: Mother / odd years: Father Christmas Eve: even years: Father / odd years: Mother Christmas Day: even years: Mother / odd years: Father New Years Eve: even years: Father / odd years: Mother New Years Day: even years: Mother / odd years: Father Easter: even years: Mother / odd years: Father
Husband shall also have two weeks of non-consecutive vacation time during summer provided he has secured suitable housing. In the alternative, Father shall provide Wife with a travel itinerary or other evidence of a suitable lodging accommodations for A.S. at his vacation destination. Nothing herein shall preclude Husband's vacation visitation from occurring at the home of a suitable relative on notice to Wife.
Maintenance
Wife seeks an award of maintenance in this divorce proceeding. This claim was first raised on April 3, 2015 in her Summons and Complaint. By Pendente Lite Order dated October 19, 2016, Wife was granted temporary maintenance to be paid in bi-weekly payments of $1,372 . At trial, Wife credibly testified that Husband failed to make even a single court ordered maintenance payment. As of June of 2018, Husband owed approximately $59,000 in pendente lite maintenance arrears. Wife asks that this Court continue the pendente lite award, as a final award, for an additional seven years running from the signing of a Judgment of Divorce. Wife argues that this amount, and duration, will allow her to continue her successful reentry into the work force which she started during the litigation. Wife has also indicated a desire to go back to school to further her education.
Notwithstanding numerous opportunities to do so, Husband failed to submit a Statement of Proposed Disposition. Moreover, his post-trial Summation which was supposed to address financial issues, fails to meaningfully discuss maintenance or equitable distribution. Rather, Husband's Summation contains broad baseless complaints about the proceedings and discusses issues of parenting and family offense. As he was repeatedly informed, Husband's Court appointed attorney was obligated to submit a Summation covering parenting issues, which he did. Accordingly, it is not clear to this Court what Husband's position is with respect to Wife's maintenance claim. Suffice to say, however, that Husband claimed to be unable to pay the pendente-lite support and did not comply at all with this Court's Order. Accordingly, it is fair to assume that he opposes any future award of maintenance as a practical matter.
The present action was commenced in 2015 before the statutory revisions of post-divorce maintenance which took effect on January 23, 2016. See DRL § 236(B)(6) . Accordingly, in determining whether to award spousal maintenance under DRL § 236(B), this Court is constrained to follow the law as it existed prior to the statutory change. Pursuant to the applicable law at the time of commencement, "the overriding purpose of a maintenance award is to give the [receiving] spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting." Sirgant v. Sirgant , 43 AD3d 1034 (2d Dept. 2007) . The amount and duration of maintenance is a matter committed to the sound discretion of the trial court based upon the unique facts of a case. See Lamparillo v. Lamparillo , 12 N.Y.S.3d 296 (2d Dept. 2015) . When determining a maintenance award the Court is directed to review a list of enumerated factors, and indicate which factors it considered in making its award. See DRL § 236(B)(6)(a)(1-20).
In the case at bar the Court has considered the following factors (1) the standard of living of the parties; (2) the comparative income of the parties; (3) the equitable distribution of property; (4) the duration of the marriage; (5) the age, health, and future earning capacities of the parties; (6) the ability of the party seeking maintenance to become self-supporting; (7) the wasteful dissipation of marital assets; (8) the need for one party to incur education or training expenses and; (9) the presence of children in the recipient spouses' household. See Carroll v. Carroll , 125 AD3d 710 (2d Dept. 2015) ; See also, Brian v. Brian , 36 AD3d 847 (2d Dept. 2007) .
a. Age, Duration, Health, Education
The parties were married on September 8, 2000 and the present cause of action was commenced in April of 2015 making this a marriage of significant duration. See Ehrman v. Ehrman , 67 AD3d 955 (2d Dept. 2009) . Wife was born on August 2, 1973, she is currently 45 years old. Wife testified that during the marriage she was diagnosed with thyroid cancer and a parotid cancerous tumor, but that she is now in remission (Tr. 6/8/18, pg. 63). Husband was born on January 13, 1971 and is currently 48 years old. There is no testimony in the record to indicate that Husband is not in good physical health although Wife argues that she believes that he may be suffering from untreated mental health issues. Husband has a bachelor's degree and numerous certifications in the field of financial securities, while Wife completed high school and has some college credits. Wife has indicated a desire to return to college to obtain a degree so that she can better her career.
b. Comparative Incomes / Earning Potential / Ability to become Self Supporting
At trial, Wife used the parties' joint tax returns (PL. Exs. 19-22) to establish that Husband had consistently earned between $140,000 and $170,000 before the commencement of this divorce action, between the years of 2011 to 2015. She claims that since commencement Husband has deliberately remained unemployed, and then under-employed, to reduce his ability to pay support. Husband argues that his initial unemployment was due to Wife's affair with his boss. However, despite this period of unemployment he has reentered the securities field and is currently working for a company known as "Traderfield Securities" as a "Chief Administrative Officer." Husband testified that he works between 35 and 50 hours a week, although he has no set schedule or set rate of pay. Husband claims he earns approximately $48,000 a year and no longer earns commissions as he once did. Husband has offered no admissible documentary evidence to support this drastically reduced salary. Moreover, Husband's sole claim that he is unable to earn income because his reputation has been tarnished, is unsupported by the record, and not credible.
Wife denies that her boyfriend was Husband's boss, although she admits that he was his co-worker and friend. She further denies plotting with her boyfriend to get Husband fired. Wife asks this Court to consider the parties' jointly filed 2015 tax return for the purposes of establishing Husband's income to be $140,700 resulting in a tax adjusted income of $126,324 (Pl. Summation, pgs. 7-14). Wife argues that imputation is proper as Husband historically earned over $140,000 a year and that he should be held to the standard of his earning potential rather than his alleged current salary. Wife has established through credible testimony, and documentary evidence, that Husband is capable of earning at least $140,000 gross a year, accordingly this Court will impute that sum to him for support purposes as it represents both his past reported income and his demonstrated earning potential. See Mollon v. Mollon , 282 AD2d 659 (2d Dept. 2001) ; See also Baumgardner v. Baumgardner , 98 AD3d 929 (2d Dept. 2012) .
Regarding her own income, Wife requests that this Court use the same joint tax return from 2015 and consider her income to be $11,114 . However, this figure is unsupported by the trial record. Wife admits that she currently works three jobs to make ends meet. She is currently employed as a bookkeeper for a company named "The Fieldway Group" and that she also works as a bookkeeper off the books for a friend, and occasionally as a bartender. Wife argues that in total she earns a monthly sum of $1,350 (Tr. 6/8/18 pgs. 39-31). Like Husband, Wife has offered no admissible documentary evidence to support her income although her testimony was credible. When calculated over the course of a year, Wife's income is approximately $16,200 . Accordingly, this amount shall be utilized for the purposes of considering both child support and maintenance.
While there is insufficient evidence in the record to determine Husband's exact current income, for the purpose of a maintenance determination, it is clear that he is in a superior financial situation than his Wife. It is also clear that Husband currently has a superior earning potential than Wife due to his education, and considerable experience in the securities field.
c. Standard of Living
When determining a maintenance claim the Court's primary concern is whether the spouse seeking maintenance can become self-supporting. See Walter v. Walter , 38 AD3d 763 (2d Dept. 2007) . However, in so determining, the Court is directed not to limit its consideration to a basic level of self-support and should rather consider the parties established standard of living. See Hartog v. Hartog , 85 NY2d 36 (1995) . A spouse in a marriage of moderate to long duration is entitled to an award of maintenance that will allow him or her to become self-supporting at a level approximate to the standard of living that they enjoyed during the marriage. See Summer v. Summer , 85 NY2d 1014 (1995) .
Wife credibly testified as to the parties' established standard of living, and that testimony is supported by the evidence in the record. Wife testified that she lived a comfortable middle-class lifestyle that was wholly supported by Husband's income. In support of her position, Wife established that the parties' owned their own home, went on two vacations a year costing between $5,000 and $10,000 , and drove luxury vehicles such as an Audi A4 (Tr. 6/8/18, pgs.35,58). Husband's income also supported the subject children attending private school (Tr. 6/8/18, pg. 60). Husband did not contradict this testimony regarding the parties' established standard of living.
d. Equitable Distribution / Marital Waste
Among the factors to be considered by the Court when determining a maintenance award is a contemporaneous award of equitable distribution. See Falgoust v. Falgoust , 15 AD3d 612 (2d Dept. 2005) . The Court is also directed to consider any wasteful dissipation of marital assets. See Sperling v. Sperling , 165 AD2d 338 (2d Dept. 1991) ; See also, Blickstein v. Blickstein , 99 AD2d 287 (2d Dept. 1984) .
Wife argues that the parties' primary asset, to wit, the former marital home, is in foreclosure due to Husband's failure to comply with Court Orders. While it is true, as Husband argues, that Wife was directed to pay the mortgage pendente lite, she was only obligated to do so upon the "actual receipt" of maintenance and child support from Husband (See Ct. Ex. 2 Pg. 8). Wife has established that Husband is over $59,000 in arrears of his maintenance obligation and has never paid full child support. Wife argues that if he had complied with court orders, the equity in the house would have been saved. Recognizing that Husband refused to make a single maintenance payment, Wife repeatedly requested that Husband consent to the former marital home being sold. Husband vehemently refused any consideration of his house being sold, and this Court lacked the power to force a sale absent a dissolution of the marriage. See Delvito v. Delvito , 6 AD3d 487 (2d Dept. 2004) . Accordingly, this Court finds that Husband's actions, in failing to pay court ordered spousal support, and failing to agree to sell the former marital home when it was in a pre-foreclosure posture, resulted in the wasteful dissipation of the equity in that home. This loss of equity resulted in more of an immediate financial need on the part of Wife as she will be receiving less of an equitable distribution award than she would have had court orders been complied with.
e. Subject Children
Finally, the Court has considered the presence of children in the recipient spouses' home. See Gordon v. Gordon , 113 AD3d 654 (2d Dept. 2014) . During the course of the trial Wife testified that the parties' two children currently reside with her in the marital home and only visit with their father sporadically despite an order granting him liberal visitation. Wife further testified that Husband discouraged Wife from seeking full time employment after the children's birth and that she served as their primary caretaker throughout the parties' marriage. Wife's role as primary caretaker clearly limited her opportunities to gain work experience, education, and training during the marriage. See DRL § 236 (B)(6)(a) (9 & 11) . Moreover, while both children are of advanced age (18 and 16 respectively) Wife has become the parent primarily responsible for their continued care as Husband has voluntarily limited his contact with them. Wife's responsibilities to her children, one of whom is admittedly an adult, will continue to limit her employment opportunities until they become self-supporting.
Durational / Rehabilitative Maintenance Award
After considering the factors above, with considerable weight being afforded to the parties' respective incomes and their earning potentials, the Court determines that Wife is capable of becoming self-supporting through further education and ultimately full-time employment. Accordingly, the award of maintenance herein is intended to help Wife meet her reasonable needs while at the same time acting as an incentive for her to obtain additional education and or training to obtain full time employment in the next few years. See Naik v. Naik , 125 AD3d 734 (2d Dept. 2015) ; See also, Griggs v. Griggs , 44 AD3d 710 (2d Dept. 2007).
Accordingly, after considering the factors set forth above, Wife is hereby awarded a period of three years of prospective maintenance at the sum of $1,500 a month. See Acosta v. Acosta , 310 AD2d 467 (1st Dept. 2003) . As Wife has indicated an intention to return to school, this payment shall be considered rehabilitative maintenance to afford Wife the financial support necessary to seek out the continued education and or vocational training she testified she would like to pursue. See Scheer v. Scheer , 130 AD2d 479 (2d Dept. 1987) . This award is also intended to supplement Wife's current part time income in order for her to maintain some semblance of the standard of living that she enjoyed during the marriage. See Myers v. Myers , 118 AD3d 1315 (4th Dept. 2014) . When determining the prospective duration of this award the Court has considered that fact that the award will also be retroactive to the commencement of this action (see retroactivity below).
Despite the rehabilitative justification of this award, there is no requirement that Wife use the funds to further her education. This award, which is considerably lower than the pendente lite award, also takes into consideration the fact that Husband is currently under-employed, despite his established ability to earn income and the resulting imputation of income as set forth herein. Wife has testified that she believes Husband's under-employment is voluntary. Husband is encouraged to seek gainful employment at a level equivalent to his pre-divorce income forthwith to avoid falling further into arrears.
This award of maintenance shall be payable as follows: The first payment of maintenance under this Decision shall be due on Wednesday July 17, 2019. As this Court's Pendente Lite Order directed bi-weekly payments, Husband shall be obligated to pay the sum of $692 every other Wednesday (alternate Wednesdays with a second payment due on July 31, 2019) as and for prospective maintenance (this amounts to $18,000 a year or $1,500 a month). The award of maintenance issued herein shall end upon the death of either party or Wife's remarriage. See In re Riconda , 90 NY2d 733 (1997) . A Short Form Order shall be issued in conjunction with this Decision modifying the pendente lite amount to reflect the amounts herein until such time as the Judgment of Divorce is signed.
Child Support
Plaintiff Wife requests an award of child support for the two subject children of this marriage who currently reside with her (A.S. Jr., A.S.). As per the terms of this Decision after Trial, Wife has been granted custody of A.S. who is under the age of 18. Moreover, while A.S. Jr. is over the age of 18, he is under the age of 21, and thus is subject to the child support jurisdiction of this Court. See Matter of Addimando v. Huerta , 147 AD3d 750 (2d Dept. 2017) . It is undisputed that A.S. Jr. resides with Wife. Accordingly, Wife is the parent entitled to an award of child support for the parties' two children.
The Child Support Standards Act sets forth the method by which the "presumptively correct" amount of child support can be calculated. See Domestic Relations Law § 240 ; Family Court Act § 413 . A three-step process is required by the relevant statutes. The first step requires a calculation of the "combined parental income" up to a statutory cap, currently $148,000 . See NY Soc. Serv. Law § 111-i(2)(b) . The second step requires the Court to multiply the combined parental income by a specified percentage based upon the number of children. The third step is only triggered when the combined parental income exceeds the statutory cap. Once the statutory percentage is applied to the parties' combined income, and each parties' pro rata contribution to that amount is determined, the resulting sum is the presumptively correct amount of child support.
As indicated above, the Child Support Standards Act (CSSA) presumptively results in the correct amount of child support to be awarded to the custodial parent. As there are two children of this union, the correct statutory percentage to be applied to the combined parental income is 25%. See Turco v. Turco, 117 AD3d 719 (2d Dept. 2014) . Application of this percentage to the combined parental income will provide the appropriate level of support to meet the basic needs of the subject child.
When determining child support under the guidelines, the Court is directed to begin its analysis by considering the income as it was, or should have been, reported on the parties' most recent tax return. See DRL § 240(1-b)(b)(5)(i) ; see also, Matter of Lynn v. Kroenung , 97 AD3d 822 (2d Dept. 2012). However, where appropriate, the Court can use more recent income information. See Matter of Daily v. Govan , 136 AD3d 1029 (2d Dept. 2016) ; See also Matter of Moran v. Grillo , 44 AD3d 859 (2d Dept. 2007). The Court may also impute income based upon a number of factors, including a party's past income, or demonstrated earning potential. See McLoughlin v. McLoughlin , 74 AD3d 911 (2d Dept. 2010) ; Matter of Picone v. Golio , 170 AD3d 859 (2d Dept. 2019) . Child support is determined by a parent's ability to provide for their children rather than their current economic situation. See Bittner v. Bittner , 296 AD2d 516 (2d Dept. 2002) ; See also Matter of Vela v. Land-Wheatley , 165 AD3d 807 (2d Dept. 2018) .
Here, for the detailed reasons set forth above (See "Maintenance"), the Court has found that Husband's imputed gross income is $140,000 and Wife's gross income is $16,200 . From this amount the Court is required to deduct certain statutory taxes that were "actually paid" by the parties including FICA, social security tax, and local NYC tax. See Brevlius v. Brevlius , 72 AD3d 999 (2d Dept. 2010) ; See also Matter of Heintzman v. Heintzman , 157 AD3d 682 (2d Dept. 2018) . As Wife's income is being approximated from her testimony, and she failed to testify as to the amount of taxes that she paid, the entirety of her income will be utilized for child support purposes. While Husband's income is also being approximated, and imputed to him, Wife has suggested that he be afforded the benefit of a tax deduction seemingly based upon his 2015 tax return (Pl. Ex. 25). Wife suggests that this Court use the figure of $126,234 for Husband's adjusted income for child support purposes. (Pl. Summation pg. 8). Considering the evidence offered at trial, and Wife's admission regarding Husband's income, this Court will utilize the sum of $16,200 for Wife and $126,234 for Husband.
Simultaneous with the passage of the new maintenance laws (see above), the Legislature also amended the CSSA guidelines set forth in the Domestic Relations Law and the Family Court Act to indicate that prospective payments of maintenance should be subtracted from the payor's income, and then added to the payees' income before child support is calculated. See DRL § 240 [1-b][b][5][iii] ; See also C.G. v. F.G. , 53 Misc 3d 229 (Sup. Ct. Rich Cty. 2016). However, these amendments were made effective for cases filed on or after January 26, 2016. Accordingly, as this case was commenced in April of 2015 the new law is inapplicable to this action.
Under the law that existed at the time this case was filed, prospective maintenance to be paid was only to be deducted from a payor's income if there was an automatic recalculation of child support at the termination of maintenance payments. See DRL § 240[1-b][b][5][vii][C] ; See also D.D. v. A.D. , 56 Misc 3d 1201(A) (Sup. Ct. Rich. Cty. 2017) ; Polychronopoulos v. Polychronopoulos , 226 AD2d 354 (2d Dept. 1996). Under the terms of this Decision, Husband shall be required to pay the annual sum of $18,000 in prospective maintenance to Wife. Accordingly, for the purposes of calculating child support, the sum of $18,000 shall be deduced from Husband's income. In accordance with the applicable law, both parties shall have the right to seek an automatic adjustment of child support from a court of competent jurisdiction at the time when the maintenance term ends. While prospective maintenance is to be deduced from Husband's income, the law the existed at the time this case was commenced did not permit prospective maintenance payments to be received by Wife to be included when calculating her income. See Shapiro v. Shapiro , 35 AD3d 585 (2d Dept. 2006) ; See also Lee v. Lee , 18 AD3d 508 (2d Dept. 2005) .
After subtracting Husband's prospective maintenance award of $18,000 from his income, his adjusted imputed income for child support purposes is $108,234 . Wife's income for child support purposes is $16,200 . The combined parental income is therefore $124,434 . As there are two children of this marriage, the applicable child support percentage is 25%. Twenty-five percent of the combined parental income is $31,109 . This figure represents the parties combined child support obligation. Husband's pro rata share of this combined child support amount is 87% and Wife's share is 13%. Eighty-seven percent of $31,109 is $27,065 , which is Husband's annual child support obligation. His monthly obligation is $2,255 . As Husband's maintenance obligation is to be paid bi-weekly, Husband's child support obligation shall be paid at the same time, with the first payment due on Wednesday July 17, 2019. Husband's bi-weekly child support payments shall be due every other Wednesday (alternate Wednesdays with a second payment due on July 31, 2019) in the amount of $1,041 . A Short Form Order shall be issued in conjunction with this Decision modifying the pendente lite amount to reflect the amounts herein until such time as the Judgment of Divorce is signed.
Both parties may seek an "automatic recalculation" of child support from a Court of competent jurisdiction after the maintenance period indicated herein terminates. See DRL § 240[1-b][b][5][vii][C]. The child support award granted herein may also be modified in accordance with statutory law, upon a showing of (1) a substantial change in circumstances; (2) an increase or decrease of 15% in either parties' income; or (3) three years passage of time from the issuance of this Decision. As Husband has failed to make prior payments of support, Wife may utilize the services of the Support Collection Unit, to assist with enforcement of the awards herein.
Child Support Add-On's
Wife seeks an Order directing Husband to pay his pro rata share of the children's unreimbursed medical expenses and the subject child A.S.'s private high school education. Pursuant to this Court's Pendente Lite Order, Husband was obligated to pay 89% of unreimbursed medical and educational expenses. Wife credibly testified at trial that Husband failed to do so, and that he owed her $2,205 in add on expenses, and $21,243 in unpaid tuition as of June 8, 2018 (Tr. 6/8/18 pgs. 52-54). Husband offered no proof to the contrary.
This Court has determined that the actual pro rata allocation pursuant to the CSSA guidelines is 87% to Husband and 13% to Wife, representing a slight adjustment from the pendente lite calculation. Therefore, Husband shall have an obligation to pay his 87% share of any reasonable and necessary unreimbursed medical or dental bills presented to him, or his counsel, within 20 days of receipt. See Matter of McNair v. Fenyn, 100 AD3d 903 (2d Dept. 2012) . Husband shall also pay of 87% of the subject child A.S.'s private high school tuition. See Yorke v. Yorke , 83 AD3d 951 (2d Dept. 2011) . Tuition bills must be paid within 30 days of receipt. Wife established that Husband owes the sum of $20,766 in arrears for A.S.'s past tuition and $2,156 representing retroactive add-on expenses. The payment of the same shall be addressed below (See Retroactivity).
This amount represents 87% of the total amount from which Wife calculated Husband's pendente lite 89% share.
Retroactivity (Maintenance, Child Support & Add-On's)
Child support awards and maintenance awards are generally retroactive to the first time that they were affirmatively requested. See Crane v. Crane, 264 AD2d 749 (2d Dept. 1999) . Here, Wife's application for maintenance and child support were first requested in her Summons and Complaint which was served on or around April 3, 2015. However, in her summation after trial, Wife requests that her award be made retroactive "to October 19, 2016, the date the court ordered defendant to vacate the marital; residence" (Pl. Summation, p. 21). Thirty-three months have passed from the time when Husband vacated the marital home until the first payments of support mandated herein. Accordingly, the retroactive award of maintenance set forth herein is $49,500 ($1,500 x 33 months) and the retroactive award of child support set forth herein is $74,415 ($2,255 x 33 months).
Husband is entitled to a credit for interim maintenance and child support payments ordered by this Court. See Schack v. Schack , 128 AD3d 941 (2d Dept. 2015) ; See also Pascale v. Pascale , 226 AD2d 439 (2d Dept. 1996) . Wife credibly testified that Husband made no payments of court ordered maintenance. Accordingly, Husband is not entitled to any credits against the retroactive maintenance award of $49,500 .
Regarding child support, neither party proved the exact amount that Husband paid during this proceeding. Husband completely failed to prove any credits he may be entitled to under the Pendente Lite Order. He offered no credible testimony, records of payment, or receipts. Rather, both parties approximated that Husband routinely paid $800 bi weekly in pendente lite child support, an amount $71 less than the amount required by the Pendente Lite Order (Ct. Ex. 2). Wife credibly testified that Husband's $800 payments commenced in January of 2017 (Tr. 6/8/18 pgs. 78-79). Accordingly, as Husband has routinely paid $800 every two weeks via income execution order, he shall be entitled to a credit in a monthly amount of $1,733 commencing in January of 2017 and continuing to date. As the retroactive awards set forth herein run from October of 2016, Husband owes three months of support from October to December of 2016 totaling $6,765 . Commencing in January of 2017 Husband shall be credited the amount of $1,733 a month against his retroactive child support obligation of $2,255 a month leaving a balance due of $522 a month. When calculated over the remaining retroactive period of 30 months this amounts to retroactive arrears of $15,660 (30 x $522 ). When added to the three months of unpaid support, this Court finds that Husband owes total child support arrears of $22,425 .
$800 bi-weekly equals $20,800 a year (26 payments x $800 ). When reduced to monthly payments, Husband paid $1,733 a month ($28,800 / 12).
In total, Husband owes the sum of $94,847 in combined child support, maintenance and child support add on arrears. He may pay the full amount owed at any time. However, in the alternative Husband may pay his retroactive arrears in monthly installments, to be made by separate check from his prospective maintenance and child support obligations as set forth herein. This check shall indicate that it is for "retroactive arrears" on its face. This arrears payment shall be paid over the course of three years in monthly installments of $2,635 . Each monthly installment payment shall be due on or before the last day of each month, commencing with a first payment due on or before July 31, 2019. In the event that Husband fails to make a single monthly payment towards arrears, Wife shall be entitled to a Money Judgment on Notice to Husband for the full amount of retroactive maintenance and child support due and owing at that time, and installment payments shall end. The money judgment shall accrue statutory interest from the date it is issued until it is fully satisfied.
$49,500 (maintenance) + $22,425 (child support) + $22,922 (tuition & add on's)= $94,847
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Equitable Distribution
The Domestic Relations Law recognizes that a marriage relationship is an economic partnership. As such, during the course of a marriage, spouses share in both its profits and losses. When the marriage comes to an end, courts are required to equitably distribute the assets and liabilities remaining from the marriage. See Fields v. Fields , 15 NY3d 158 (2010) . A trial court considering the factors set forth in the Domestic Relations Law has broad discretion in deciding what is equitable under all of the circumstances. See Maddaloni v. Maddaloni, 142 AD3d 646 (2d Dept. 2016) . Indeed, when it comes to the equitable distribution of marital property, Domestic Relations Law § 236 (B)(5)(d)(13) authorizes the trial court to take into account "any other factor which the court shall expressly find to be just and proper." Consequently, the trial court has substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances. See Mahoney-Buntzman v. Buntzman , 12 NY3d 415 (2009) . Equitable distribution does not necessarily indicate equal distribution. See Groesbeck v. Groesbeck , 51 AD3d 722 (2d Dept. 2008).
When making its determinations as to equitable distribution, the Court has considered a number of the factors enumerated in DRL § 236. See Henery v. Henery , 105 AD3d 903 (2d Dept. 2013) . In addition to any factor specifically considered regarding a particular asset herein, the Court finds that: (1) this is a marriage of significant duration; (2) Husband is the monied spouse in this action as he is capable of earning in excess of $140,000 a year; (3) Wife has health concerns as a cancer survivor in remission, while Husband is in general good health; (4) Wife currently resides in the marital home together with the two children of this marriage, one of whom is over the age of 18; (5) Wife is entitled to an award of maintenance as set forth herein however, Husband has failed to comply with this Court's orders of support; (6) Wife has made considerable contributions to Husband's prior career by providing support as a spouse and primary caretaker of the children; (7) Husband has a superior opportunity for financial growth as a licensed stock broker, while Wife's opportunity for future economic growth is more limited and; (8) Husband's failure to comply with this Court's pendente lite support order has resulted in Wife's inability to pay the mortgage resulting in a pending foreclosure action.
a. Marital Home
The parties resided in a property located at ** ******* Avenue in Staten Island, New York which was purchased during their marriage. Neither party contests that the property is "marital property." This home is presently the residence of Wife and the two children of this marriage. Pursuant to this Court's Pendente Lite Order dated October 19, 2016, Wife was directed to pay the mortgage upon her "actual receipt" of the maintenance and child support awarded therein. As a direct consequence of Husband's failure to pay support, the home is currently in foreclosure (See Ct. Ex. 15). When the foreclosure action started, Wife made an immediate application to sell the home to mitigate the parties' losses. Husband vehemently refused to consent to a sale resulting in a further loss of equity. Wife now asks this Court to appoint her as "receiver" for the purpose of ensuring the orderly and efficient listing and sale, if possible, of the marital home.
When considering the equitable distribution of real property, the Court is tasked with determining how to distribute the net equity in that property, if any, after consideration of credits and marital debts. To this end, the Court is directed to consider the several statutory factors indicated above. See DRL § 236(B)(5)(d)(1-14) . Generally, in a marriage of long duration assets are to be distributed as evenly as possible. See Morielle-Hinds v. Hinds , 2019 NY Slip Op 01208 (2d Dept. 2019) .
During these proceedings, the parties had the former marital home appraised. The resulting appraisal report was offered into evidence (Pl. Ex. No. 6). Pursuant to that Report, the marital home had a value of approximately $456,500 as of May 9, 2016. As of June 8, 2018, Wife testified that the outstanding mortgage on the home was approximately $430,000 with $80,000 of that amount in arrears together with penalties from non-payment (Tr. 6/8/18 pg. 31). This Court finds that the loss of equity, the assessed penalties, and the pending foreclosure action are primarily due to Husband's failure to comply with court ordered support. Under these circumstances the Court finds it equitable to distribute the net equity, if any, from the marital home 60% to Wife and 40% to Husband. See DRL § 236(B)(5)(d)(6) ; See also Adjmi v. Adjmi , 8 AD3d 411 (2d Dept. 2004) ; Southwick v. Southwick , 202 AD2d 996 (4th Dept. 1994).
The disposition of the home is complicated due to the pending foreclosure action and the absence of proof in the trial record as to that action. In her summation, Wife requests the right to make all decisions regarding the home, and to negotiate for both parties in the foreclosure proceeding. Wife seeks the right to seek a refinance, to sell the home, or to allow it to proceed to a short sale with the right to retain residence therein, until she is forced to vacate. Husband requests that he be restored to the home, without explaining how he would pay the mortgage or compensate Wife for her share of the equity.
After consideration of Wife's position, and the factors indicted above, Wife is granted the right of first refusal to purchase Husband's share of the equity in the marital home in accordance with the percentages indicated herein. See Rubackin v. Rubackin , 69 AD3d 546 (2d Dept. 2010) . To effectuate this right, Wife is hereby authorized to "buy out" Husband's 40% of the equity in the property (if any remains) as determined by an updated appraisal to be conducted by the court appointed neutral broker who conducted the prior appraisal of the property, "Zaloom Appraisal Associates." Wife shall be responsible for any fee associated with this updated appraisal. If Wife is electing this option, she must retain Zaloom Appraisal Associates within 30 days of this Decision. The purpose of the updated appraisal is to determine the current market value of the home, as the original appraisal is now over three years old. See Opperisano v. Opperisano , 35 AD3d 686 (2d Dept. 2006) .
Wife shall have 30 days from the receipt and exchange of an updated appraisal to utilize the buy out option granted herein. If Wife chooses to purchase Husband's share of the equity, she may do so by using the significant child support and maintenance arrears owed by Husband as "credits against equity" by reducing the amount of arrears (dollar for dollar) to compensate Husband for his 40% share. If Wife chooses to buy out Husband's share of the property, she must take all possible steps to remove his name from the mortgage, either by obtaining a substitute mortgage, refinancing the current mortgage, or by paying off the mortgage balance in full. After Wife purchases Husband's equity, she shall be entitled to make all decisions regarding that property in relation to the pending foreclosure action. Husband shall be responsible for preparing a deed transferring his interest in the property to Wife, in the event that his share of the equity is purchased.
Should Wife choose not to buy out Husband's interest, then the parties are hereby directed to place the marital home on the market for sale at its current market value as recommended by a licensed real estate broker to be selected by Wife. The property shall be listed for sale within 15 days of Wife's decision not to utilize her buy out provision but no later than 30 days after her right to buy out expires. The broker shall be authorized to take a commission of five percent (5%) for the sale unless Wife can negotiate a lesser rate. The listing price shall be reasonably reduced by the broker every 60 days that the house remains on the market without a sale. Wife shall cooperate in all ways with the sale of the home, including reasonable showings of the same, and open houses, if recommended by the broker.
Upon sale, existing liens and bills associated with the property, together with all usual and customary costs, taxes, commissions and fees associated with the sale shall be paid. The remaining amount (if any) shall constitute the "net proceeds" of the sale. Wife shall be entitled to deduct any unpaid child support and maintenance arrears owed to her "off the top" of the net proceeds. The resulting remainder (if any) shall constitute the adjusted net proceeds, which shall be distributed 60% to Wife and 40% to Husband. These options assume that the parties still retain control over the disposition of the home. In the event that the foreclosure court has already ordered a short sale, or if a sale to a third-party results in a mortgage deficiency, any deficiency judgment levied against the parties shall be borne 100% by Husband as his failure to comply with Court Orders directly resulted in the foreclosure proceeding.
b. Retirement Accounts
Wife seeks an equitable share of husband's retirement account, which she identifies as an Individual Retirement Account or IRA. Wife claims that Husband's IRA contained the approximate sum of $15,153 at or around the commencement of this action although she has offered no documentary evidence at trial to support that figure. Wife requests a distributive award in the amount of $7,577 representing one half of that amount. Husband, in opposition, claims that the account is gone, having been liquidated during the course of this action to pay legal fees for the attorney for the subject children (Tr. 5/17/18 pg. 81; SFO 10/27/15).
Husband seeks one half of Wife's IRA. However, like Wife, he offered no documentary evidence to show the accounts existence of any account or its value at the commencement of this action. Wife testified that she does have an IRA that was "partially" accumulated during the course of the marriage with an approximate value of $7,000 as of June 2018 (Tr. 6/8/18 pg. 34).
In order to prevail on claim for equitable distribution of a retirement account, a party must prove the existence of that account, its marital or non-marital nature, and establish its value at the commencement of the divorce action. See Carvalho v. Carvalho , 140 AD3d 1544 (3rd Dept. 2016) ; See also Gredel v. Gredel , 128 AD2d 834 (2d Dept. 1987) . A failure to offer proof of either the existence of an asset, or it's value will generally preclude distribution of the same. See Horn v. Horn , 145 AD3d 666 (2d Dept. 2016) . Here, both parties established that the other possessed an IRA. However, neither party established the percentage of those accounts that were marital or the value of those accounts at the commencement of this action. See Spera v. Spera , 71 AD3d 661 (2d Dept. 2010) . Moreover, Husband correctly claims that his IRA was at least partially liquidated for litigation expenses that were attributed to both parties (See SFO 10/27/15). Accordingly, as both parties failed to offer sufficient proof as to the nature and value of the alleged IRA's at issue, this Court is not in a position to equitably distribute them. See Alper v. Alper , 77 AD3d 694 (2d Dept. 2010) ; See also Antoian v. Antoian , 215 AD2d 421 (2d Dept. 1995) . Under these circumstances, and after consideration of the factors above, each party shall be entitled to keep any retirement benefits currently titled in their name.
c. Credit Card Debt
Wife seeks a distributive award in the amount of $8,552 representing one half of two credit card balances (American Express and Sears) that the parties accumulated during their marriage. Generally, credit card debt incurred during marriage is subject to the principles of equitable distribution. See Rizzo v. Rizzo , 120 AD3d 1400 (2d Dept. 2014) . Wife claims that the combined balance of these cards is approximately $17,104 . However, she offered no documentary evidence to support this claim. Absent documentary evidence, this Court is not in a position to determine the amount of debt that existed at the commencement of this action. See Bernholc v. Bornstein , 72 AD3d 625 (2d Dept. 2010) ; See also Opperisano v. Opperisano , 35 AD3d 686 (2d Dept. 2006) . Any debt incurred after commencement would not be marital in nature. As Wife has failed to establish the value of marital debt that existed at the time this action was commenced, the Court is unable to distribute the debt testified to at trial. See Prince v. Prince , 247 AD2d 457 (2d Dept. 1998) . Accordingly, each party remains responsible for any credit card debts in their respective names. In the event that a credit card is titled in both parties' names, each party shall be responsible for one half (50%) of that debt.
d. Personalty
Husband seeks a distribution of personalty that was acquired by the parties during their marriage, or a distributive award representing one half of its value. However, there is no information in the record regarding the existence or value of any particular items of personalty. Accordingly, the Court is not in a position to distribute any personal property owned by the parties. See Moller v. Moller , 188 AD2d 807 (3rd Dept. 1992) ; See also LaBarre v. LaBarre , 251 AD2d 1008 (4th Dept. 1998) . Each party shall be entitled to keep all personal property currently in their possession, including all of the property in their current residences and the cars that they are currently driving free and clear from claims by the other party.
Counsel fees
Plaintiff's counsel seeks an award of $7,500 representing attorney's fees incurred by Wife in this action. Counsel seeks for this award to be "payable in the form of a judgment without further notice to defendant, or payable from defendant's share of the net proceeds of the marital home" should there be any such proceeds (Pl. Summation, p. 19). Wife argues that Husband is the "monied spouse" in this action and therefore, that he should be required to contribute to her fees. Wife's counsel has submitted documentary proof that Wife owed the sum of $12,500 at the close of trial. Wife seeks a contribution of $7,500 from Husband. Wife further argues that Husband's actions have significantly delayed these proceedings resulting in unnecessary counsel fees. Although not specifically addressed by Husband in his Summation, this Court assumes he opposes the application.
An award of reasonable counsel fees is a matter within the sound discretion of the trial court. The issue of counsel fees is controlled by the equities and circumstances of each particular case. See Nicodemus v. Nicodemus , 98 AD3d 605 (2d Dept. 2012) ; see also DRL § 237(a). While DRL § 237 permits consideration of many factors, paramount amongst these factors is financial need. See O'Halloran v. O'Halloran , 58 AD3d 704 (2d dept. 2009) ; See also, Silverman v. Silverman , 304 AD2d 41 (1st Dept. 2003). "An award of an attorney's fee will generally be warranted where there is a significant disparity in the financial circumstances of the parties". Cohen v. Cohen , 73 AD3d 832 (2d Dept. 2010) . The purpose of DRL § 237 is to "redress the economic disparity between the monied spouse and the non-monied spouse." See O'Shea v. O'Shea , 93 NY2d 187 (1999). Other factors to be considered include the relative merits of the parties' positions, and if either party engaged in conduct that resulted in a delay of the proceedings or unnecessary litigation. See Vitale v. Vitale , 112 AD3d 614 (2d Dept. 2013). In addition to DRL § 237(a), DRL § 237(c) mandates an award of attorney's fees upon a showing of a willful failure to comply with a Court Order. See Hayes v. Hayes , 127 AD3d 1021 (2d Dept. 2015) ; See also Pelgrim v. Pelgrim , 127 AD3d 710 (2d Dept. 2015).
Husband is the monied spouse in this action, as he was routinely able to earn in excess of $140,000 throughout the parties' marriage. He has not offered a persuasive reason why he is not currently earning a similar amount. In contrast, Wife is the less monied spouse and is only now reentering the workforce. After considering the totality of the circumstances, Husband is the spouse more capable of funding this litigation despite his decision to remain in a position which pays him less salary than he could potentially earn. See Kanterakis v. Kanterakis , 171 AD3d 718 (2d Dept. 2019) . The Court may consider imputed income when determining an award of counsel fees. See L.P. v. C.B. , 20 N.Y.S.3d 292 (Sup. Ct. Kings Cty. 2015) .
However, equally important to the comparative incomes of the parties is the fact that much of this prolonged and expensive litigation was caused by Husband's actions. Husband has repeatedly failed to comply with Court orders while steadfastly refusing to settle a single issue in this proceeding. Husband has routinely taken positions that are unsupported by law, filed numerous motions and "applications" that were procedurally defective and arguably frivolous, and which only served to delay this proceeding. Husband's conduct has resulted in delay, unnecessary litigation, and the accumulation of unnecessary legal fees on the part of Wife, only some of which are now being sought by Wife's counsel. See Prichep v. Prichep , 52 AD2d 51 (2d Dept. 2008); See also Licostie v. Licostie , 171 AD3d 1153 (2d Dept. 2019) ; Morille-Hinds v. Hinds , 169 AD3d 896 (2d Dept. 2019).
For these reasons, Wife's attorney is hereby granted an award of counsel fees in the requested sum of $7,500 . This award shall be payable by Husband directly to Wife's counsel within 30 days of the singing of a Judgment of Divorce incorporating the terms of this Decision. See Cohen v. Cohen , 120 AD3d 1060 (1st Dept. 2014) ; See also Guzzo v. Guzzo , 110 AD3d 765 (2d Dept. 2013) . In the event that Husband does not timely make payment, Wife's counsel may automatically reduce his award to a money judgment to be submitted to this Court for signature on notice to Husband.
Motions Referred to Trial
During this proceeding several motions, or unresolved aspects thereof, were referred to trial. Among these applications were motion sequence numbers 005 and 006, filed by Wife. Therein, Wife's former counsel, Ms. Anne-Louise Depalo Esq., requests an award of counsel fees for the filing of various applications by Husband that she argues were frivolous. However, as Ms. Depalo is no longer the attorney of record in this case, and Wife did not offer any evidence in support of these motions at trial, the motions are hereby denied. Husband's conduct and the filing of unnecessary or frivolous applications has been addressed in relation to Wife's current counsel fee application (see above), which has been granted. Accordingly, upon review, all of the issues raised in the motions indicated above have been addressed, resolved, or mooted by this Decision after Trial.
Conclusion
For the detailed reasons set forth above, a Judgment of Divorce is hereby granted to Plaintiff Wife on the grounds that the marriage has broken down irretrievably pursuant to DRL § 170(7). As to ancillary relief, Wife is granted sole physical and legal custody of the child A.S. subject to Husband's visitation schedule as set forth herein. Wife's application for maintenance is granted in the amount of $1,500 per month for a period of three years prospectively, and also retroactively to October 2016. Wife's application for child support is granted in the amount of $ 2,255 per month also retroactive to October 2016. The equitable distribution of the assets that the parties accumulated during the marriage shall be distributed as delineated herein. The payment of child support and maintenance arrears shall be effectuated as delineated herein.
All other issues not specifically addressed or decided herein are hereby denied. The Court has considered all pending motions that have been referred to this trial and finds that they have been adjudicated by the terms of this Decision. To the extent that any application has been referred to trial, and not specifically addressed herein, that application is hereby denied.
Plaintiff Wife is hereby directed to file a Judgment of Divorce together with Findings of Fact and Conclusions of Law, annexing and incorporating this Decision, within 30 days. Counsel is directed to file the Judgment of Divorce directly to chambers. A separate short form order shall be issued in conjunction with this Decision modifying the current pendente lite awards to reflect the amounts set forth herein.
This constitutes the Decision of the Court.