Opinion
No. 12/4743.
08-25-2014
Amy BENJAMIN–PRATT, Plaintiff, v. Andrew PRATT, Defendant.
Sanford R. Shapiro, Esq., Forsyth, Howe, O'Dwyer, Kalb & Murphy, P.C., Rochester, Attorney for plaintiff. Karen Smith Callanan, Esq., Rochester, Attorney for defendant. Michael Guarino, Esq., Webster, Attorney for the infant-children.
Sanford R. Shapiro, Esq., Forsyth, Howe, O'Dwyer, Kalb & Murphy, P.C., Rochester, Attorney for plaintiff.
Karen Smith Callanan, Esq., Rochester, Attorney for defendant.
Michael Guarino, Esq., Webster, Attorney for the infant-children.
Opinion
RICHARD A. DOLLINGER, J.
In this matter, a trial was held on issues relating to child support and equitable distribution. The husband and wife both testified and were cross-examined by opposing counsel, and the attorney for the children. The wife, as plaintiff, reaffirmed her complaint that the marriage had been irretrievably broken down for a period in excess of six months under Domestic Relations Law § 170(7). Palermo v. Palermo, 100 AD3d 1453 (4th Dept.2012)
The couple were married in 2004, while the wife was a medical resident at the University of Rochester. The husband, at the time of the marriage, was employed as a finance representative for a local money managing business. Soon after the wedding, while the wife was working and completing her medical training, the husband left his job, remained at home, caring for the first child (now five years old) and eventually the second child (now two years old). The wife described this arrangement as an “agreement.” She would work and the husband would care for the children. The wife also testified that the husband, with his musical background, worked part-time as a musician, accompanying various shows at local playhouses, and serving as a choir director at a local church.
Both parents have advanced degrees. The wife holds a medical degree, earned prior to the marriage. The husband holds a master's degree in music education, obtained during the marriage. The couple have a wide disparity in their incomes: the wife's, at the time of the commencement, exceeded $160,000 and the husband, admittedly working only part-time, earned less than $8,000. After conferences, and motion practice, the couple were unable to resolve their differences and a trial ensued.
CUSTODY
It is undisputed that the children are in good health and have no exceptional needs. There is no evidence suggesting that either parent has any parenting flaws or behaviors that would adversely impact their children, or that either parent cannot promote the best interests of the children. The testimony is undisputed that both parents love their children, and the children, to the best extent that both parents can evaluate them, love their parents. The wife testified that from time to time before the break-down of the marriage, the husband would often ignore the children. However, there is no evidence that either child encountered any difficulties during the time that he cared for them in the marital residence prior to the break-down of the marriage. After the husband left the marital residence, the wife's parents moved into the marital residence and they have provided on-going childcare for the couple. The wife's parents perform those tasks while the wife works and, on occasion, when the husband, as a result of his somewhat difficult-to-anticipate schedule, drops the children off at the former marital residence. There was no evidence that the children have encountered any difficulties as a result of the use of the grandparents as daycare providers, and neither party objected to this arrangement.
The husband testified that his parents also play a role in the children's lives. The husband, after leaving the marital residence, purchased a home nearby the marital residence. In purchasing the home, the husband, with the approval of the court, removed $10,000 from the family's bank accounts to finance the purchase (this extinguished his interest in the marital home). The husband's parents also assisted in the purchase of the house and, according to the husband they pay the monthly mortgage cost while he pays the property taxes and other costs.
The parents contributed $17,000 to the purchase of the house.
After the trial, neither party disputed that joint custody was appropriate in this case. The evidence establishes that they have worked together on educational and extracurricular issues. Joint decision-making should continue except as otherwise provided in this decision. The evidence establishes that both parents bring skills and attributes to their parenting and that neither parent critiques the other's parenting skills. The children love both parents and want to spend time with both of them. While there is some friction between the couple at this stage, there is also evidence that they can jointly make decisions regarding the children's education and activities. Both parties have used family resources to minimize the use of daycare, and cooperated when one or the other had time commitments that required changes in the parenting schedule. This court concludes that there should be joint custody and joint decision-making between these parents. Each parent shall cooperate on all matters having a significant impact on the children's lives, including, but not limited to: education, psychological well-being, medical care, religious upbringing, school vacations, trips, summer camp, and extra-curricular activities, unless otherwise stated in this decision. The parents will advise each other of all the above listed matters as they pertain to their children.
The court makes only two exceptions. First, because the wife is a physician, she is vested with sole decision-making on all medical matters involving the children. She must confer with the husband prior to implementing any medical decisions, but after such consultation, she will make the final decision. Second, the wife shall have the final decision on whether the children attend private schools, provided she pays the entire tuition cost. She must confer with the husband regarding the school, but after such consultation, she makes the final choice, provided she alone pays the tuition. If the wife elects not to pay private school tuition, the parties shall jointly decide on schooling. This court takes judicial notice that the parties live in the same school district, and it provides high quality education for students. Thus, if the children attend the public schools in their home district, a high quality education can be easily attained.
The parents shall cooperate to provide their children a sense of security and affection, and to maintain and improve the emotional health and well-being of the children. Neither party shall do anything which may estrange the other parent from the children or injure the opinion of the children as to the other party, or hamper the free and natural development of the love of the child for the other party.
PARENTING TIME
During the pendency of this action, the parents have created a parenting schedule that both parents acknowledge has “worked.” A previous court order, issued in November 2012, provided the following:
(A)the father had alternating weekends, noon on Saturday through 5:00 P.M. on Sunday;
(B)every Wednesday from 2:00 P.M. to 7:00 P.M.;
(C)every Friday from 2:00 P.M. to 7:00 P.M.;
(D)on non-residential weekends, Monday commencing at 2:00 P.M. to 7:00 P.M.; and,
(E)the parties agreed to any other time with the father as they could mutually agree.
In her post-trial memorandum, the wife suggests the following parenting schedule:
(A)the father shall have residence with the children from 9:00 A .M. until 7:00 P.M. on Mondays and Tuesdays;
(B)and on Fridays from 9:00 A.M. until Saturday at 9:00 A.M.;
(C)every other weekend this residence shall extend from Friday at 9:00 A.M. until Sunday at 9:00 A.M.; and,
(D)the mother shall have residence with the children for the balance of the week and any weekend until Monday at 9:00 A.M.
In the husband's post-trial memorandum, he simply requests that this court implement a “shared residential schedule for both children as there is no proof at trial which would show the same is not appropriate given the parties circumstances.” The husband's counsel makes no suggestion on how to allocate the time equally and never argues that the current arrangement—in which the wife has the children in residence more than half the time-is inappropriate.
The trial proof leads to other conclusions. The husband testified:
A:Well, as—as Amy said, we had worked out an agreement whereby the children would be with me on Mondays, Tuesdays and Fridays. Uhm—ordinarily when I work, I pick the children up on my way home at 11:45, as she said, on those days. They are with me until 7:00 p.m. on Mondays and Tuesdays, and overnight on Friday, either until Saturday morning or until Sunday morning, on alternating weeks.
Q:And with regard to that being the current schedule, are there any changes that you would request be made to that schedule going forward?
A:I would like to eventually have both girls—uhm—spend Monday and Tuesday nights overnight with me at my residence, yes.
The wife's counsel never inquired about the husband's intended meaning of the term “eventually.” Both children are young-five and two. The husband's use of “eventually” causes the court some hesitation in awarding equal time to both parents for these very young children, at this time.
At another point, the husband testified:
A:I would like us to share custody. I would like us to share residence. I would like us to share decision making. I think it is in the best interests of the children to have a complete and loving relationship with both Amy and with myself and to spend equal time at each of our residences.
The wife testified, regarding the schedule:
Q:Can you tell the Court what the current visitation schedule is?
The current schedule that Andy and I have agreed on is that he gets to be—or—gets custody of the girls after school, so—or after he's completed with his school day on Mondays and Tuesdays until 7:00 p.m. So, that's roughly 11:45 until—I am sorry—until 7:00 p.m. on Mondays and Tuesdays. On Fridays, again, after school, so, from about 11:45 until the following morning at 9:00 a.m.; and we alternate every other Saturday. So, one Saturday the girls would remain at his home until 9:00 a.m. on Sunday, and the other week it would—they would return to my home at 9:00 a.m. on Saturday.
Q:Is that the schedule you would like to see going forward from the conclusion of these proceedings?
A:I am comfortable with that schedule as it is right now.
Importantly, under the current arrangement, the wife is the primary residential parent. The children spend at least four nights a week with their mother, and on alternate weekends, they spend six nights a week with her. In a two-week period, the wife has the children 11 nights, and the husband only three. However, because both parties acknowledge that a split residence plan would best accommodate the relationship between the parents and their children, the court decides the following parenting time schedule:
Monday—children start the day at their mother's, father gets both children after school on Monday, and keeps them overnight;
Tuesday—older child dropped off at school, younger child goes to mother's residence, father picks up the children after his work and keeps them overnight;
Wednesday—father drops off older child at school, younger child goes to mother's residence and thereafter remains with their mother;
Thursday—children remain with their mother;
Friday—children start at their mother's, father picks up older child after school and picks up the younger, children remain with him until Saturday at 9 am and on alternating weekends, the children stay with their father until 9am Sunday.
The plan provides for the mother to have slightly more than half of the time with the children over the course of a week. The slight deviation from a 50/50 plan does not alter the fact that under this arrangement, both parents will have ample opportunity to develop strong relationships with their children. This bi-weekly parenting time plan meets the best interests of both children and the parents. The following general terms shall apply to the remaining parenting time schedule for this couple:
1.The parties shall be able to select such child care as they may desire, which does not exclude the other parent as an option, but does not vest a right of first refusal with the other parent.
2.The parties shall provide additional periods of time with the children for travel and special activities. Such time shall not be unreasonably withheld.
3.Parenting time shall be exercised as set forth above, unless changes are agreed to at least five-days in advance. In the event of unanticipated changes caused by the illness of a party or child, or conflict with the employment responsibilities of a party, the party having parenting time shall be responsible for obtaining suitable care of the children. The parties shall observe the respective periods of parenting time set forth above and shall exercise them reliably and in a timely manner.4.Each party shall have the right to be kept reasonably informed of all school activities and conferences, as well as all medical, dental, or other meetings with any specialists working with the children for any reason, and shall be entitled to receive copies of all school records, report cards, medical, dental, and other records of any health or educational professional working with the children for any reason.
5.Should either party travel more than 100 miles outside of Monroe County with either or both children, they shall inform the other party in advance.
6.Both parties shall have reasonable phone or video-conferencing contact with the children when either or both children are with the other party.7.Each party shall promptly notify the other regarding any serious sickness, disability, injury or accident involving either of the children.In the event that a child is confined to bed or home as a result of such sickness, disability, injury, or accident, the non-parenting-time party shall have the right to visit that child at reasonable times and for reasonable periods of time.
8.Each party shall encourage the children to use the terms “Father” and “Mother” or their equivalents when referring to the other party hereto, and shall discourage the use of such terms in reference to any other person.
9.Currently, the parents live in the same public school district. The close proximity of their residences is a substantial factor in the court's determination for shared residency and parenting time. The court also finds that it is in the best interests of the children that their parents live in the same school district and within close proximity to each other throughout the children's primary and secondary education. If either parent moves out of the current public school district, it shall constitute a change of circumstances and either party may then request modification of the shared custody and equal parenting time arrangement set forth in this decision.
10.The husband can both pick-up and drop-off the children. He has flexibility in his scheduling and in the absence of a full-time employment, the travel obligation should rest with him. If he obtains full-time employment, the court would reconsider how this couple shares the pick-up and drop-off of the children. Based on the trial proof, the husband works in the morning from approximately 7:30 A.M. until approximately 11:00 A.M. On days when he has time with the children, he drops them off then he goes to work and picks them up from the former marital residence when he returns. The older child attends pre-school and it is undisputed that the husband will pick up his older daughter on the way home from his job on days that he has the children.
The parenting time for these parents should be shared as equally as possible during holidays, special days, and vacations. The court, after reviewing the proposals for each parent, decides as follows:
In even numbered years
1.New Year's Eve:The Mother, will have custody from New Year's Eve at 9:00 A.M. through New Year's Day at 2:00 P.M., and the Father will have custody from New Year's Day at 2:00 P.M. through January 2nd at 5:00 P.M., at which point the normal schedule shall resume.
2.Easter: The Father will have custody from 9:00 A.M. on Saturday until 5:00 P.M. on Sunday, at which point the regular schedule shall resume.
3.Memorial Day Weekend:The Mother will have custody from 5:00 P.M. on Friday to 5:00 P.M. on Monday, at which point the regular schedule shall resume.
4.Independence Day:The Father shall have custody from 9:00 A.M. on July 4th until 9:00 A.M. on July 5th, at which point the regular schedule shall resume.
5.Thanksgiving:The Father will have custody from Wednesday at 9:00 A.M. through Thursday at 7:00 P.M., at which point the regular schedule will resume.
6.Labor Day:The Mother shall have custody from 5:00 P.M. Friday until 5:00 P.M. Monday, at which point the regular schedule shall resume.
In odd numbered years 1–6 will reverse.
7.Birthdays:On the parent's birthday the parent will have custody from 9:00 A.M. until 7:00 P.M., at which point the regular schedule will resume. The parents agree to cooperate so each may spend time with the children on each of the children's birthdays.
8.Mother's Day and Father's Day: The Mother shall have custody on Mother's Day weekend, and the Father's shall have custody on Father's day weekend rom Friday at 9:00 P.M. until Sunday at 5:00 P.M.
9.School Vacations:Vacations shall be determined by the school's vacation calendar. In even years the Father shall have custody during the Spring school vacation. The children shall spend Monday through Friday plus one contiguous day of the vacation-custody parent's scheduling. The children shall spend the other weekend with the non-vacation-custody parent, from Friday 5:00 P.M. through Sunday 5:00 P.M., at which point the regular schedule resumes, or Friday 5:00 P.M. through Sunday 5:00 P.M. with the non-custody-vacationing parent, at which time the regular schedule will resume.
10.Summer Vacation: The parties shall follow the regular residential schedule, except that each parent shall be entitled to two-non-consecutive weeks for vacation with the children. The mother shall have first choice in odd numbered years and the Father will have first choice in even numbered years. In all cases each parent will make their vacation plans upon no less than thirty (30) days notice.
This schedule can be modified by the parents as needed to accommodate special occasions, so long as the modifications remain in the children's best interests.
MAINTENANCE
In prior proceedings, this court ordered maintenance to be paid by the wife to the husband in the amount of $1,750 each month. The payments commenced in December 2012 and have continued to the date of the trial. The wife's counsel, without contradiction, computed this amount as $28,000 in temporary maintenance paid from the wife to the husband during the pendency of this action.
At trial, there was little evidence of the husband's financial needs. He never suggested that he was failing to pay his bills. While there was some evidence that he required financial support from his parents, there was no suggestion that his expenses substantially exceeded his income. In his statement of net worth, he listed his monthly expenses as stemming from his living together with his wife in the marital residence, which leaves sparse information on the expenses in his new residence. Maintenance requires some justification based on current or anticipated needs of the recipient and, the husband's proof on the issue is minimal, at best.
This court also finds that the husband has the capability to earn significantly more income as a teacher. There is no evidence that his return to a job in the financial sector would be profitable. He currently works only part-time, but there is no evidence that he could easily obtain a full-time job as a music teacher. During cross-examination, wife's counsel probed whether the husband was diligently seeking employment. He testified that he had three interviews with school districts this year trying to obtain a full-time job, but as of the date of trial had not obtained one. The husband currently earns $17,000 annually as a part-time music teacher. He is paid some additional stipends for work as an accompanist, the director of musical productions, and the director of a vocal group. In this court's view, he could be employed during those times, earning additional income which would add to his own financial stability. If he even worked 15 hours a week on weekday evenings and alternate weekends (when he does not have the children), he would generate, at minimum wage, approximately $120 per week or nearly $6,000 in additional annual income. As a result, imputing income in the amount of $30,000 annually to the husband is reasonable and fair.
There was no competent evidence at the trial as to what a full-time starting music teacher in the public schools would pay annually.
The wife has been paying maintenance since December 2012, at the rate of $1,750 per month. In considering the maintenance factors set forth in the Domestic Relations Law, the Court concludes as follows:
(A)The wife (approximately $160,000 annually) makes substantially more income than the husband (less than $15,000 annually);
(B)The marriage is of a relatively short duration and during it, the wife completed her medical training and the husband changed jobs. He left a career in the financial industry to become a teacher, a move that was, in part, a reflection of the wife's higher potential earnings as a physician;
(C)Both parents are young and in good health;
(D)The wife's earning capacity is sizable, given her medical training. The husband also has a capacity for a reasonable and sustainable future income, especially with a bachelor's and master's degree;
(E)The pre-divorce household was largely supported by the wife's income, at least at its later stages. The husband lives in a new residence, in the same community as the marital home, with a comparable-although not identical-standard of living;
(F)There is no evidence of any acts inhibiting either party from reaching their economic potential, except the competition for employment among music teachers that the husband faces as he seeks a full-time job;
(G)The husband's part-time income is not self-sustaining, but if he accepted part-time employment during his non-parenting hours, he could substantially improve his economic picture;
(H)There is no significant evidence that the husband, while he stayed home from work while the wife was finishing her medical training, lost any employment opportunities. The evidence suggests that he used this time to seek a new career in music education;
(I)The children will be living in each home frequently and cause both parents to seek methods to pay child care;
(J)The children have expenses, including daycare and private school expenses;
(K)Any maintenance payments from the wife to the husband are tax deductible to her and taxable to him. Because he has a substantially smaller income, the tax impact to him will be smaller as he will pay taxes at a lower rate;
(L)The equitable distribution is not a substantial factor as this couple did not, during this relatively short-term marriage, acquire substantial assets;
(M)The husband did provide parenting services while the wife completed her medical education. While the extent of his contributions are disputed, the court finds that he withdrew from the employment market and provided at-home child care services to support his wife's education and career;
(N)There is no evidence of wasteful disposition, or any transfers during the marriage without sufficient consideration; and,
(O)The loss of health insurance will impact the husband, as he will be required to obtain a policy at some cost.
The court notes that the husband, in arguing for continued maintenance, cites the temporary guidelines for maintenance enshrined in DRL § 236(B)(5–a). Under these guidelines, the maintenance would total $3,801 per month, for a total of more than $47,000 annually. This court has, in other contexts, declined to apply the temporary guidelines. E.J.L. v. K.L.L., 38 Misc.3d 389 (Sup.Ct. Monroe Cty.2012) ; see also Liebman v. Liebman, 37 Misc.3d 1224(A) at 9 (Sup.Ct. Queens Cty.2012) (the presumptive award is unjust or inappropriate). In addition, the temporary guidelines are inapplicable to a permanent award. V.M. v. N.M., 43 Misc.3d 1204(A) at 13 (Sup.Ct. Albany Cty.2014). The court sees little value in the guidelines approach in this case, in which the recipient spouse already has an advanced degree and needs little “workforce retraining” in order to maximize his economic potential. The husband, in this case, just needs a full-time job, not job retraining.There are no other factors justifying extended maintenance in this case. In this court's view, the husband should be paid maintenance by the wife for a period of 40 months at the rate of $1,500 per month or $60,000. The wife gets credit for the payments already made. She has paid $1,750 for 22 months (from December 1, 2012 through August 1, 2014) for a total of $38,500. When this amount is subtracted from the original amount, $21,500 remains to be paid. The wife should pay $1,500 per month for the next 14 months and then $500 for the last month, and the maintenance obligation will be completed. The husband's total income, based on his current employment and the maintenance, will be approximately $25,000–$35,000 during this period. The husband, given his education, including an advanced degree, should be able to find a suitable job with income equivalent to the maintenance within the next 15 months. Maintenance will give the husband time to complete his “reinvention” as a music teacher and secure full-time employment. The amount and duration of maintenance paid by the wife to the husband in this case is not unconscionable, based on the needs of the husband and the ability to pay by the wife, and there is no danger that the husband will become a public charge.
There was no expert proof—for that matter, any proof—regarding the husband's job prospects, other than the husband's own testimony—“I am looking.” However, the wife, in seeking to curtail maintenance, would have the burden of proof to show that the husband had available jobs and declined to take them. There was no proof of those facts.
CHILD SUPPORT
The parenting time schedule, as advanced by the court, creates an almost equal split of the time between the parents. As a result, identifying the non-custodial parent based on relative incomes is consistent with the intent of the Child Support Standards Act to make sure that the children enjoy a particular standard of living, wherever they happen to be residing at a particular time. Martin v.. Buckley, 33 Misc.3d 1234(A) (Sup.Ct. Monroe County 2011). Accordingly, the wife is determined to have the greater pro rata share of the child support obligation and is identified as the non-custodial parent for child support purposes. See also Leonard v. Leonard, 109 AD3d 126, 129 (4th Dept.2013) (parent's child-related costs are dictated by the amount of time he or she spends with the children and the children's standard of living should not vary so drastically from one parent's house to the other).
The wife is, by far, the higher income spouse. As a matter of law, she carries the child support obligation. Bast v. Rossoff, 91 N.Y.2d 723 (1998) ; Rubin v. Della Salla, 107 AD3d 60 (1st Dept.2013) (where the parents' custodial time is truly equal, such that neither parent has physical custody of the child a majority of time, courts have deemed the parent with the higher income to be the non-custodial parent for child support purposes). At the outset of this analysis, the following factors influence the Court:
(A)The court imposes the current support cap of $141,000. There is no evidence that the children cannot be reasonably provided for by a payment equivalent to the cap or that their reasonable needs would require a payment of child support in excess of the cap, see Wei Jiang Sun v. Yong Jian Li, 43 Misc.3d 1205(A) (Sup.Ct. Queens Cty.2014) ;
(B)For the purposes of the cap, the court elects to impute a $30,000 income to the husband, as this amount would reasonably reflect a salary for an individual with a master's degree in music education or, a reasonable salary for a part-time music teacher who profitably uses his remaining free-time to generate income;
(C)The wife, at the date of commencement, earned approximately $160, 00 annually and the husband's imputed income would be $30,000, leaving the wife liable for 85% of the child support cap and the husband liable for 15%;
(D)Using these numbers, the annual child support is $35,350 as required by the Child Support Standards Act. The wife is liable for $29,962.50 in annual child support and the husband is liable for $5,287.50;
(E)The wife's child support obligation should be modified because she pays the entire health insurance cost and covers all unreimbursed expenses for the children, her parents provide in-home daycare services for the children, and, the wife pays the entire private schooling costs for the older child (est. $3,500 annually). Also, there is evidence that she pays the cost of clothes and extracurriculars for the children;
(F)There is no evidence that the husband cannot meet his financial obligations.
(G)For these reasons, a deviation from the wife's child support obligation is justified as a matter of law and the court sets the child support for the wife to pay to the husband under the shared-parenting time arrangement at $1,200 per month.
In her post-trial submission, the wife argues that the child support should not commence until the maintenance payments cease. This suggestion fails to take into account the separate functions of these two statutorily mandated forms of transfer payments. The maintenance is designed, in significant measure, to support the spouse and permit the spouse to engage in necessary steps to re-enter the work force, and seek sustainable employment. Child support, paid to a parent who shares parenting time, is required to support the children. Because the two are separate support functions, sanctioned by statute, the court declines to merge them together. The child support should be paid commencing the first day of the first month after the issuance of this opinion.
The couple shall each contribute $500 per year for each child's extracurricular activities and summer camps, but otherwise, the wife shall pay for all other costs and expenses incurred by the children relating to school activities, or other outside activities. Any unreimbursed medical or dental expenses shall be shared 80 percent to the wife and 20 percent to the husband and any bills or receipts for such services shall be delivered to the other parent no later than 10 days after the end of the month in which the bill or receipt is delivered. Any amounts due shall be paid within 20 days thereafter.The wife will provide health insurance for the children at no cost to the husband. Upon the filing of the divorce, the husband shall cease to participate in any health insurance plan made available to him through the wife or her employer. The husband may engage coverage through the COBRA option from the wife's employer or obtain insurance through other sources.
There is no evidence in this case that the husband, based on the child-support he will be provided, cannot provide for the children. There is no evidence that they have substantial expenses or unusual needs. He has additional family resources to draw on if he needs them, and he has family support in caring for the children. There is no evidence that the husband, who lives a short distance away from the wife's residence, in the same town, will not be able to provide a comparable standard of living for the children. The expenses of visitation are minuscule: the distance separating the two residences is less than two miles.
REAL PROPERTY
There are no remaining issues related to real property. The wife is the sole owner of property at 209 Hollywood Avenue, Rochester, New York. She paid the husband $10,000 for his marital interest in the property which was advanced to him pursuant to a temporary order issued by this court. The husband's name was removed from any mortgage obligation. He has no further marital claim in this real property and any of its contents. The wife keeps what remains in the home. The husband's current home, purchased after the date of commencement, is his separate property and not under the jurisdiction of this court. The wife seeks reimbursement for the cost of refinancing the house. The wife testified that the refinancing cost $8,180. There is no evidence whether the refinancing reduced or increased the mortgage rate on the house, whether there were tax advantages for the refinancing or documentary proof regarding the payment of these sums. The court declines to grant any credit to the wife for this sum.
RETIREMENT ACCOUNTS
With respect to retirement accounts, the husband had a Roth IRA and a 401K investment account on the date of commencement. The wife had a TIAA/CREF account and a 403–b account. These accounts shall be divided by calculating the marital funds in the accounts on the date of commencement, adding any gains and losses since the date of commencement and then netted and any excess owed to either party shall be transferred by appropriate order. Neither party owned any stocks or mutual funds.
PERSONAL PROPERTY
The automobiles shall be divided and each party shall have full title to the vehicles which they currently use. The Prius, operated by the husband, had $16,500 in equity at the time of the commencement of the action (the wife and the husband's statements of net worth attest to the equity in the Prius at the time of commencement). Based on the wife's testimony and the statement of net worth, the wife is awarded $8,250 as her marital share of the equity in the Prius. The wife's car on the date of commencement was subject to a lease and had no equity. The parties will take whatever steps are necessary to transfer titles consistent with this decision. Each party remains liable for the cost of those vehicles since the date of commencement, and shall provide their own insurance from the date of commencement.
In her claims for personal property, the wife also alleges that the husband acquired toy trains during the marriage and removed them when he moved out. The wife testified the trains acquired during the course of the marriage were worth $8,000. The wife presented a list of the trains, with dates of purchase and values. The wife's attorney read deposition testimony in which the husband agreed to the wife's estimated value of $8,000. The Court credits the wife's testimony on the value of these items and awards her $4,000 as a credit against the marital share of the trains. The wife retains all her rings and jewelry, as there were no values for these items during the trial and no claim against them by the husband.
The wife testified that the husband charged $2612.50 to his own credit card after the date of commencement, and that amount was paid off from a joint checking account after the date of commencement. The wife is entitled to one-half of these funds or $1,306.25. She also claims that the husband removed other amounts from various accounts and she claims a marital interest in those accounts. Based on this Court's review of the various accounts and the husband's removals, the husband took $4650 from one account, $2,000 from another and $3,580 from a third. These sums total $10,150, which is slightly more than the $10,000 that the court had ordered to be paid to the husband to extinguish his marital interest in the marital residence. The court considers these sums a wash and allocates no further amount to the wife for these transactions. The wife does make a valid claim that the husband withdrew $3,300 from a marital account, after the date of commencement, and transferred those funds to his own account. The husband owes the wife $1,650 as her share of those post-commencement transfers.
DEBTS
The wife has substantial student loans, totaling $145,000. There is no evidence to justify any enhanced earnings for the husband's claim to the wife's degree and no evidence that these debts should be equitably distributed. The students debts in the wife's name remain in her name. The husband also has student debts and those debts remain his sole responsibility.
ATTORNEYS FEES
The husband is the less monied spouse and under DRL § 237(a) is presumed to be a beneficiary of attorney fees. Considering the scope of the equitable distribution in this case, the incomes of the parties, and all other factors, the husband is awarded $5,000 in attorney fees to be paid within 30 days of the entry of the final judgment in this matter. The parties shall also jointly pay the cost of the services of the attorney for the children. These costs, based on the total sums paid, shall be divided evenly. While this formula is slightly weighted more to the husband, the court considers this allocation, for the services of the children's appointed attorney to be reasonable and fair under all the circumstances. The proof before the court establishes that the wife advanced $1,264 for the AFC fees and there is no evidence that the husband paid any portion of these fees. The husband shall reimburse the wife $632 for these expenses.
MISCELLANEOUS MATTERS
The court makes no provision for any college costs incurred by the children. Either parent may apply for apportionment of college costs at a later time.
The husband shall have the older daughter as a tax exemption and the wife shall have the younger daughter. When only one exemption is available, the couple shall rotate the exemption with the higher income spouse having the first year of the single exemption.
The husband makes a claim for distribution of the couple's 2012 income tax return. While this asset accrued during the course of the marriage and is marital property, this court declines to require the wife to distribute any portion of the return. The payment of maintenance and other factors makes it inequitable to do so and furthermore, almost the entire refund stems from the wife's substantial income. Likewise, the court also declines to award the wife any sums for her payment of taxes that accrued on the husband's income in 2012. In her claims to this court, the wife argues that the husband listed three exemptions on his wage reporting statements with the consequence that he had no withholding taken during that year. She argues that he would have paid $3,199 in taxes on his income and that she, in essence, paid it. This court rejects this novel theory of equitable distribution, and denies the wife's claim to these funds.
Both parties will obtain term life insurance on their lives in an amount no less than $100,000, and they shall make the other spouse the beneficiary of such insurance. The court intends that this insurance provide for the children and it shall continue in full force and effect until the emancipation of the older child. Upon that event, the insurance shall be dropped to $50,000 and shall remain in full force and effect until the second child is emancipated.
To the extent that this decision awards sums to either parent, the parents should net out the sums so awarded, and the net amount should be paid by the obligated spouse within 30 days of this decision. This decision resolves all disputes regarding the support of the children and the family and the equitable distribution of all marital assets in accordance with Section 170(7) of the Domestic Relations Law.