Opinion
Index No. 50896/2017
10-07-2022
CBC, Plaintiff, v. CLC, Defendant.
Counsel for the Plaintiff, CBC: Jonathan B. Behrins, Esq. Of Counsel to THE LAW FIRM OF JAMES R. LAMBERT Counsel for Defendant, CLC: Daniel Evan Clement, Esq. LAW OFFICES OF DANIEL E. CLEMENT
Unpublished Opinion
Counsel for the Plaintiff, CBC: Jonathan B. Behrins, Esq. Of Counsel to THE LAW FIRM OF JAMES R. LAMBERT
Counsel for Defendant, CLC: Daniel Evan Clement, Esq. LAW OFFICES OF DANIEL E. CLEMENT
Ronald Castorina, Jr., J.
Procedural History
Plaintiff CBC and Defendant CLC, were married on October XX, 1994, in Westchester County. There are three children of the marriage, to wit: JCC, born March XX, 2003, CJC, born September XX, 2005, and NGC, born December XX, 2006. The Plaintiff Wife commenced this action for divorce against Defendant Husband by Summons with Notice and Automatic Orders on October 18, 2017. (NY St Cts Filing [NYSCEF] Doc Nos. 1).
A preliminary conference was held on November 20, 2018 and an order was issued on consent that Plaintiff would be granted a divorce pursuant to Domestic Relation Law § 170 [7] Irretrievable Breakdown, after the resolution of the ancillary issues. Plaintiff filed a Verified Complaint on or about December 20, 2018. (NY St Cts Filing [NYSCEF] Doc Nos. 17). Defendant filed an Answer with Counterclaims on or about April 27, 2022. (NY St Cts Filing [NYSCEF] Doc Nos. 143). Plaintiff filed a Notice of Rejection of Answer to Defendant's counterclaim on or about April 29, 2022. (NY St Cts Filing [NYSCEF] Doc Nos. 144). During the pretrial process the parties were able to resolve custody of the children, CJC and NGC. (tr at 4, lines 22-23).
Trial commenced on July 27, 2022 and concluded on July 28, 2022. The Plaintiff and the Defendant were the only witnesses. Pretrial memoranda of law and updated statements of net worth were submitted by the parties via NYSCEF numbered 162-165 on July 28, 2022. Parties submitted written summations via NYSCEF numbered 166-170 on September 12, 2022. This is a Decision and Order after trial.
Facts
The issues outstanding for the trial court to decide are as follows: (a) equitable distribution; (b) maintenance (c) residential custody of the child, JCC; (d) child support; and (e) counsel fees.
The parties stipulated to the following facts (1) the parties were married on October XX, 1994 in Westchester County, New York (tr at 3, lines 16-18); (2) there are three children of the marriage, JCC, born March XX, 2003, CJC, born September XX, 2005, and NGC, born December XX, 2006 (tr at 3, lines 19-22); (3) commencement date of the action is October 18, 2017 (tr at 3, lines 23-24); and (4) the Plaintiff shall take the divorce on the grounds of irretrievable breakdown of the marriage (tr at 3, line 25, tr at 4, line 1).
Plaintiff and Defendant further stipulated (5) the appraised value of the marital residence, XXXX Court, is $525,000.00 as of April 2022 (tr at 4, lines 2-4); (6) the outstanding mortgage principal on the marital residence is $219,180.00 (tr at 4, lines 5-6); (7) pursuant to Court Orders, Defendant pays to Plaintiff monthly spousal support in the amount of $1,804.82 and monthly child support in the amount of $2,940.00 and there are no arrears (tr at 4, lines 7-10); (8) for the purposes of support calculations, Defendant's income is $178,509.00 and Plaintiff's income is $30,276.00 (tr at 4, lines 19-21); and (9) Plaintiff has custody of the two younger children, CJC and NGC (tr at 4, lines 22-23)
The parties' assets consist of the (A) marital residence located at XXXX Court, with an appraised value of $525,000.00 and an outstanding mortgage principal of $219,180.00 as of May 1, 2022. (tr at 4, lines 2-6); and (B) Plaintiff has an retirement account that was wholly accumulated during the course of the marriage (tr at 189) currently valued at $333,000.00 (tr at 188-189) with a commencement value of $293,265.00 (Plaintiff's Exhibit No.6).
Each party also has marital debt that has resulted from the marriage, the exact amounts are in dispute.
Plaintiff was diagnosed with Chronic Myeloid leukemia in 2014 and takes an oral chemotherapy, XXXX, every day. (tr at 126, lines 7-12). Plaintiff is currently disabled and receiving $30,276.00 annually in Social Security Disability. (tr at 4, lines 21); (NY St Cts Filing [NYSCEF] Doc Nos. 165). In the fall of 2018, Plaintiff received a retroactive disability payment in the amount of $108,000.00 for lost wages during the years 2015 to 2018. (tr at 183-184).
Defendant is a W-2 employee and earns an annual income of $178,509.00. (tr at 4, lines 19-21).
The child, JCC, has resided with the Plaintiff in Staten Island for part of 2022 and has resided with the Defendant for part of 2022. (tr at 150, 178-179).
Trial
The trial of this action commenced on July 27, 2022 and concluded on July 28, 2022. Defendant's Exhibits A through F and Defendant's Exhibit and I through were stipulated to and received into evidence. (tr at 5).
I. Equitable Distribution
Plaintiff seeks (1) the Defendant to transfer all right, title, and interest in and to the real property located at XXXX Court, Staten Island, New York to the Plaintiff by means of a bargain and sale deed with covenants; (2) a finding that all household furnishings and personal effects contained in XXXX Court, Staten Island, New York shall constitute the sole and exclusive property of the Plaintiff; (3) the Defendant to reimburse the Plaintiff the cost of the house repairs made to XXXX Court, Staten Island, New York by the Plaintiff from July 2018 through the date of the closing, totaling approximately $15,600.00; equitable distribution, with a penalty of the Banana Fund assets; (4) the Defendant to reimburse the Plaintiff $108,000.00 in Social Security Disability retroactive award funds expended by the Plaintiff; and (5) the Defendant to be responsible for 100% of the marital credit/charge/debit card balances, regardless of whether they are in joint name or either parties' individual or corporate name.
Defendant seeks (A) all marital assets, including but not limited to the parties' marital home, located at XXXX Court, Staten Island, New York, and retirement assets, to be divided as equally as possible; (B) all marital debt incurred by either party prior to the commencement of the divorce should be equally divided. Defendant would consent to the sale of the marital residence being deferred until the parties' youngest child, NGC, graduates high school, provided Plaintiff continues to pay the mortgage and other carrying costs.
"Equitable distribution law does not mandate an equal division of marital property[.]" (see Jones v Jones, 182 A.D.3d 586 [2d Dept 2020] quoting Culen v Culen, 157 A.D.3d 926 [2d Dept 2018]; Scaramucci v Scaramucci, 140 A.D.3d 848 [2d Dept 2016]). "The equitable distribution of marital assets must be based on the circumstances of the particular case and the consideration of a number of statutory factors." (see Jones v Jones, 182 A.D.3d 586 [2d Dept 2020] quoting Culen v Culen, 157 A.D.3d 926 [2d Dept 2018] citing Domestic Relations Law § 236 [B] [5] [d]). "Those factors include: the income and property of each party at the time of marriage and at the time of commencement of the divorce action; the duration of the marriage; the age and health of the parties; the loss of inheritance and pension rights; any award of maintenance; any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of marital property by the party not having title; and any other factor which the court shall expressly find to be just and proper[.]" (see Silvers v Silvers, 197 A.D.3d 1195 [2d Dept 2021]; quoting Taylor v Taylor, 140 A.D.3d 944 [2d Dept 2016]; Halley-Boyce v Boyce, 108 A.D.3d 503 [2d Dept 2013]; citing Domestic Relations Law § 236 [B] [5] [d]).
"The factors a court must consider in distributing marital property are set forth in Domestic Relations Law § 236 [B] [5] [d]. 'In fashioning an award of equitable distribution, the Supreme Court is required to discuss the statutory factors it relied upon in distributing marital property[.]'" (see Morille-Hinds v Hinds, 87 A.D.3d 526 [2d Dept 2011]; quoting Spera v. Spera, 71 A.D.3d 661 [2d Dept 2010]; quoting Milnes v. Milnes, 50 A.D.3d 750 [2d Dept 2008]).
Where health of both parties is not at issue, and "where both spouses equally contribute to the marriage which is of long duration, a division should be made which is as equal as possible[.]" (see Smith v. Smith, 162 A.D.2d 346 [1st Dept 1990]; Flom v Flom, 170 A.D.3d 440 [1st Dept 2019]).
"When both spouses equally contribute to a marriage of long duration, the division of marital property should be as equal as possible; however, equitable distribution does not necessarily mean equal distribution[.]" (see Spencer-Forrest v Forrest, 159 A.D.3d 762 [2d Dept 2018].
"Although in a marriage of long duration, where both parties have made significant contributions to the marriage, a division of marital assets should be made as equal as possible... there is no requirement that the distribution of each item of marital property be made on an equal basis[.]" (see Baron v Baron, 71 A.D.3d 807 [2d Dept 2010).
The Court in Granade-Bastuck v Bastuck, 249 A.D.2d 444 [2d Dept 1998] ruled "a division of marital assets should be made as equal as possible," however, in this matter the age and health of both parties were not at issue.
"Marital property must be distributed equitably between the parties, considering the circumstances of the particular case and a number of statutory factors[.] The trial court is vested with broad discretion in making an equitable distribution of marital property[.]" (see Eschemuller v Eschemuller, 167 A.D.3d 983 [2d Dept 2018]).
The Court has "adhered to the principle that both parties in a matrimonial action are entitled to fundamental fairness in the allocation of marital assets, and that the economic and noneconomic contributions of each spouse are to be taken into account." (see Holterman v Holterman, 3 N.Y.3d 1 [2004]). In determining equitable distribution, the Court further took into consideration all relevant factors including, "the gross disparity in the parties' current and probable future incomes" and "husband's good health in contrast to wife's chronic health difficulties[.]" (see id).
Plaintiff and Defendant were married on October XX, 1994 and were married for approximately 23 years at the time of commencement of this action. The parties have three children. The Defendant's income is $178,509.00. (tr at 4, lines 19-21). Plaintiff previously had an income of approximately $100,00.00 (tr at 42, lines 15-17); (tr at 135, lines 17-18). per year until 2014 (tr at 42); (tr at 135-136). In March 2014, Plaintiff was diagnosed with chronic myeloid leukemia. (tr at 126; 136).
Plaintiff testified that she was "diagnosed in the beginning of March 2014 and I worked from home for the next few months and then I went on short-term disability" for a period of twelve weeks. (tr at 136, lines 2-7). Plaintiff received a $75,000.00 severance package. (tr at 136, lines 8-11). Later in 2014, Plaintiff filed for disability with the Social Security Administration. (tr at 138-139). In October or November 2018, Plaintiff was awarded Social Security Disability. (tr at 183-184). Plaintiff also received a retroactive award from Social Security for the years 2015-2018 in the amount of $108,000.00 (tr at id). Plaintiff's income is $30,276.00. (tr at 4, lines 19-21).
Plaintiff's chronic myeloid leukemia requires her to have ongoing treatment by a hematologist/oncologist and to take daily anticancer medication, XXXX, which is an oral chemotherapy. (tr at 126, lines 9-18). Plaintiff's medication was covered under the Defendant's health insurance plan. (tr at 127, lines 9-18). The cost of Plaintiff's daily medication will cost approximately $15,000 per month without the Defendant's health insurance coverage. (tr at id, lines 11-13).
Plaintiff has been under the medical care of an oncologist that does not accept any insurance and the cost of Plaintiff's health care visits with her oncologist are $670.00 per visit." (tr at id, lines 21-24). Presently, Plaintiff's visits with her oncologist are quarterly; however, there have been medical setbacks which have required increased frequency of visits. (tr at 127-128). In 2020, Plaintiff had an incident where she developed fluid in her lungs due to her anticancer medication, which required her to be monitored by her doctor more frequently. (tr at 128, lines 3-6).
"The trial court is vested with broad discretion in making an equitable distribution of marital property[.]" (see Michaelessi v. Michaelessi, 59 A.D.3d 688 [2d Dept 2009]).
Pursuant to Domestic Relations Law § 236 [B] [5] [d], marital property shall be distributed "equitably" between the parties and the Court has considered the following factors in determining the distribution of the parties' assets:
(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
(2) the duration of the marriage and the age and health of both parties;
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(5) the loss of health insurance benefits upon dissolution of the marriage;
(6) any award of maintenance under subdivision six of this part;
(7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party. The court shall not consider as marital property subject to distribution the value of a spouse's enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, in arriving at an equitable division of marital property, the court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse;
(8) the liquid or non-liquid character of all marital property;
(9) the probable future financial circumstances of each party;
(10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
(11) the tax consequences to each party;
(12) the wasteful dissipation of assets by either spouse;
(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(14) whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts;
(15) in awarding the possession of a companion animal, the court shall consider the best interest of such animal. "Companion animal", as used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law; and
(16) any other factor which the court shall expressly find to be just and proper.
Other than the marital home, the household furnishings and personal effects contained in the marital home, and retirement assets, there are no assets to be distributed. By stipulation, the parties have agreed that the marital residence has an appraised value of $525,000.00 as of April 2022 and is subject to an outstanding mortgage of $219,180.00 as of May 1, 2022.
Plaintiff has retirement assets valued at approximately $340,000.00. (tr at 188, lines 21-24). A credible and accurate accounting of the Defendant's retirement assets was not forthcoming in testimony. Defendant testified he accessed funds from his retirement accounts post commencement.
Q. You took distributions from retirement accounts totaling $82,000 in the year 2021; is that correct?
Would it refresh your recollection - -
A. Please, go ahead.
Q. You have taken distributions before, haven't you?
A. I have.
Q. On multiple occasions?
A. Yes, I have to cover the gap in our spending. Yes.
Q. Do you recall when it was that you had taken from one account $40,000 and another account $42,000, for a total of $82,000?
A. No, I don't recall the distribution of that amount. I do recall that I took a loan from a 401K of 40-something thousand to pay for JXXX's freshman year at Penn State when he failed out and then to paydown debt. So that was a loan. (tr at 56, lines 11-25).
And I don't know if that is what a distribution means but it's a loan that I'm paying back.
Q. Let me rephrase.
A. Okay.
Q. Did you access a total of $82,000 to pay debts in the year 2021?
A. Yes.
Q. From what source or sources did you derive that $82,000?
A. So there was a loan that I took from my Fidelity 401K that I used to pay for college expenses and pay debt. And I believe the other distribution came from one of my retirement accounts, the T. Rowe Price account, I believe it was to pay for debt as well. Some of that debt was tax debt and some of that debt was credit card debt. (tr at 57, lines 1-15).
Defendant further testified that he continues to make contributions to his retirement account that his company matches.
Q. You have $350 a paycheck that goes to your retirement account, correct?
A. I don't exactly recall the amount. It is a percentage that you designate.
Q. I will find it in here if you want me to. You said it is $350 a check. You said it was 8 percent you wanted to transmit.
A. 8 percent makes sense, yeah.
Q. Okay. And your employer matches?
A. It matches the first 4 percent I think it is. (tr at 59, lines 5-14).
Plaintiff receives Social Security Disability in the amount of $30,276.00 per year and Defendant has a W-2 income of $108,729.00 per year.
The Plaintiff is 51 years old and is receiving Social Security Disability due to chronic myeloid leukemia. Plaintiff's chronic myeloid leukemia requires her to have ongoing treatment by a hematologist/oncologist and to take daily anticancer medication, XXXX, which is an oral chemotherapy. (tr at 126, lines 9-18). Plaintiff testified as to her treatment for chronic myeloid leukemia:
Q. And you were diagnosed in 2014?
A. Yes.
Q. How frequently did you visit the oncologist then?
A. In the beginning it was once a week. Then it became twice a week, three times a week. Now I see him quarterly.
Q. And what therapies or treatment did you receive when you were seeing him on the more frequent basis of weekly and monthly?
A. We started on the XXXX after my diagnosis.
Q. So you have been on XXXX every day?
A. Yes.
Q. Since your diagnosis in 2014?
A. Yes.
Q. Are you covered for that medication?
A. Under CLC's [Defendant's] insurance I am covered for the medication.
Q. Do you have an understanding as to how much that medication, the XXXX, would cost if you were not covered?
A. Last time I checked it was almost $15,000 a month. (tr at 126-127).
Plaintiff testified regarding inability to work due to her chronic myeloid leukemia, "I knew that it was going to be difficult to not be working anymore, but together we made the decision to go on short-term disability because working was unattainable. I could not work anymore. That is not a decision I made by myself. We discussed it and it was agreed upon that I would go on short-term disability. (tr at 138, lines 2-7).
Plaintiff further testified:
Q. Did you inform CLC of your intent to file for disability with the Social Security Administration?
A. Yes.
Q. Do you recall when?
A. I do not recall. 2014, I don't know a month.
Q. And what was his reaction?
A. Oh, he thought that I was not going to get approved. I should not do that. I should just go back to work.
Q. And what did you say in return?
A. I can't work. I am going to file for disability. (tr at 139, lines 1-10).
In October or November 2018, Plaintiff received a retroactive disability award in the amount of approximately $108,000. (tr at 183-184). Plaintiff further testified that in 2020, she had an incident where fluid developed in her lungs due to the XXXX and she required increased medical monitoring. (tr at 128, lines 3-6).
Plaintiff further testified about the effects of her chronic myeloid leukemia:
Q. Why do you have a housekeeper?
A. Because I need help, day-today help keeping the house clean.
Q. Why?
A. Any kind of manual labor is taxing. I get tired a lot. I have illness, lots of side effects from my chemotherapy. (tr at 201-202).
Plaintiff is currently still receiving disability from the Social Security Administration.
As of the date of trial, Plaintiff has consistently resided in the marital home with the parties' children. The Defendant vacated the parties' marital residence in July 2018 following a visit to the home by police and has never returned to the marital home. (tr at 73-75).
Upon dissolution of the marriage the Plaintiff will no longer be covered by the Defendant's health insurance. Defendant and the parties' children will continue to be covered by the Defendant's health insurance.
While Plaintiff has not provided testimony as to the cost of replacement health insurance, the Plaintiff has documented the extraordinary expenses the treatment of her chronic myeloid leukemia will require, if she is unable to obtain adequate health coverage within her limited budget due to her Social Security Administration Disability status.
A. Marital Residence
The parties are seeking equitable distribution of the marital residence, located at XXXX Court, Staten Island, New York. The marital residence has a stipulated to appraised value of $525,000.00 and an outstanding mortgage principal of $219,180.00.
The Defendant seeks to have the parties' marital residence, located at XXXX Court, Staten Island, New York, sold and the net proceeds equally distributed, however, the Defendant would agree to a deferment of the sale until the parties' youngest child graduates high school, provided the Plaintiff continues to pay the mortgage and other carrying costs.
The Plaintiff seeks to have the Defendant transfer all right, title, and interest in and to the real property, located at XXXX Court, Staten Island, New York, to the Plaintiff by means of a bargain and sale deed with covenants. Plaintiff further seeks a finding that all household furnishings and personal effects contained within the parties' marital residence, located at XXXX Court, Staten Island, New York, shall constitute the sole and exclusive property of the Plaintiff.
This is a marriage of long duration. Defendant is the monied spouse. Plaintiff is unable to work due to her chronic myeloid leukemia and faces significant financial obstacles due to her restricted income capacity and her significant health care costs. The Court has considered the testimony and evidence submitted as factors in determining equitable distribution under Domestic Relations Law § 236 [B] [5] [d].
With respect to the equitable distribution of the parties' marital residence, located at XXXX Court, Staten Island, New York, "it is important to note that there is no requirement that the distribution of each item of marital property be on an equal basis[.]" (see Rizzo v Rizzo, 120 A.D.3d 1400 [2d Dept 2014] citing Coffey v Coffey, 119 A.D.2d 620 [2d Dept 1986]).
Here, equity dictates that the Plaintiff should receive most of the equity in the marital home, as she is permanently disabled and unable to earn an income now or in the future, whereas the Defendant is employed and has future income earning capacity. (see id citing Domestic Relations Law § 236 [B] [5] [c]; Garner v Garner, 307 A.D.2d 510 [3d Dept 2003]). Taking into account all the circumstances of this case and of each of the parties, particularly the heath and future earning capacities of each of the parties, the allocation of 57% of the stipulated to equity in the martial residence to the plaintiff and 43% to the defendant would be equitable.
The parties have stipulated the appraised value of the marital residence, located at XXXX Court, Staten Island, New York, is $525,000.00. (tr at 4, lines 2-4). The parties have also stipulated the marital residence has an outstanding mortgage principal of $219,180.00. (tr at 4, lines 5-6).
Appraised value
$525,000.00
Outstanding mortgage principal
($219,180.00)
Equity
$305,820.00
The equity in the marital home to be distributed is $305,820.00.
Parties' Equity Calculated on Allocated Percentage Shares
Plaintiff's Allocated Equity Share - 57%
$174,317.40
Defendant's Allocated Equity Share - 43%
$131,502.60
In determining the distribution of the marital residence, the Court has also considered the Plaintiff's claim for reimbursement of her retroactive social security award $108,000.00 and her request for counsel fees in the amount of $85,238.00. The Court will discuss the awards being made in the form of reimbursement of Plaintiff's retroactive social security award and counsel fees under each of this Memorandum Decision and Order's appropriate subheading.
Here, equity dictates that the plaintiff should receive all right, title, and interest in and to the real property, located at XXXX Court, Staten Island, New York, by means of a bargain and sale deed with covenants.
In addition, the Court finds that all household furnishings and personal effects contained within the parties' marital residence, located at XXXX Court, Staten Island, New York, shall constitute the sole and exclusive property of the Plaintiff.
The distribution to the Plaintiff of the marital residence, including all contents therein, is made in full satisfaction of awards made to the Plaintiff for the Plaintiff's claim for reimbursement of her retroactive social security award and the Plaintiff's request for counsel fees. In the interests of economy, the Defendant's equity in the marital residence has been used to satisfy the awards for reimbursement of Plaintiff's retroactive social security award and counsel fees and he has no further obligation to Plaintiff pertaining to retroactive social security award and counsel fees.
Accordingly, it is ORDERED that the Defendant transfer all right, title, and interest in and to the real property, located at XXXX Court, Staten Island, New York, to the Plaintiff by means of a bargain and sale deed with covenants and that all household furnishings and personal effects contained within the parties' marital residence, located at XXXX Court, Staten Island, New York, shall constitute the sole and exclusive property of the Plaintiff. The Plaintiff's request for Defendant to reimburse the cost of repairs from July 2018 through the date of closing, made to the marital residence, located at XXXX Court, Staten Island, New York, is DENIED.
B. Marital Debt Incurred by Either Party Prior to Commencement date of Action on October 18, 2017
The parties have significant marital debt. Defendant seeks that all marital debt incurred by either party prior to the commencement of the divorce be divided equally. Plaintiff alleges fraud by the Defendant in creating the parties' debt and seeks that Defendant should be responsible for all the parties' debts, regardless of whether they are in joint name or either parties' individual or corporate name.
The testimony and the financial debt incurred by the parties during the marriage evidence that the parties lived a lifestyle that was beyond their financial means. This was exacerbated with the onset of the Plaintiff's illness in 2014. Defendant testified that the parties' financial situation was dire:
Q. When did it [parties' financial situation] become dire?
A. It has been dire for a while but certainly from the time that she [Plaintiff] stopped receiving disability insurance payments it was very dire because it was only my income at that point.
Q. When was that, approximately? (tr at 41, lines 21-25).
A. I mean, she became sick in 2014. On short-term disability for a few months. (tr at 42, lines 1-2).
A. It was dire for many years. (tr at 41, line 7).
A. We definitely overspent when we started having children and we couldn't afford, essentially, to maintain the lifestyle that CBC enjoyed. So we ended up borrowing a lot of money to fund that. We did it on credit cards.
We had nannies that we paid full-time to take care of our children.
We certainly overspent for many, many, many years. It got much worse when CBC was no longer making the $100,000 a year she was making as a marketing executive for a financial software firm. (tr at 42, lines 9-17).
A. So the debt we were carrying to maintain the lifestyle was on credit cards and we had credit card bills as a result of that and so we had to pay the credit card bills. We were paying - - some credit cards had very high interest rates and when you opened a new account, you could get a promotional offer that would reduce the interest payment. (tr at 44, lines 17-22).
Plaintiff testified that Defendant solely took care of the finances, and she was unaware of the credit card transfers that were taking place. (tr at 185). Plaintiff also testified that from 2019 to today, despite limited resources, she incurred about $103,000.00 in expenses related to the parties' children. (tr at 182).
Defendant testified that he primarily managed the parties' finances during the marriage:
Q. You testified or do you recall testifying a number of times across the three days of depositions that CBC didn't want to know about finances?
A. Correct.
Q. Or participate in it?
A. That's correct.
Q. So when you say when we would manage the debt, you really mean you managing the debt?
A. Well, many, many times I begged CBC to participate in working with me on managing the finances in the house and she just flat-out refused. (tr at 40, lines 10-20).
Plaintiff testified as well that while she contributed financially to the marriage, the Defendant was the primary manager of the parties' finances:
Q. If you had a significant expenditure of, say, $500 or more, would you simply just pay it?
A. No.
Q. Or would you speak to CLC about it?
A. I would speak to CLC about it.
Q. Okay. With regard to the monthly bills, did you pay them, did you assist CLC with them, or something else?
A. CLC was in charge of the bill paying.
The evidence provided clearly indicated that the parties came to an arrangement that the Defendant would handle the parties' finances. This was a consensual arrangement. While the Plaintiff may indeed not have known the exact dollars and cents earned and expended, the evidence indicates it was her own free choice in abdicating financial decision making to the Defendant during the marriage.
Accordingly, it is ORDERED that all marital debt incurred by either party prior to the commencement of the divorce and regardless of whether the debt is in joint name or either parties' individual or corporate name shall be divided on a pro-rata basis. Plaintiff is responsible for 32% of all pre-commencement marital debt and the Defendant is responsible for 68% of all pre-commencement marital debt.
C. Banana Fund Assets
The Banana Fund was an investment pool between the Defendant and three friends. (tr at 204). Defendant made a one-time investment of $2,500.00 into this pool. (tr at 205-206). Plaintiff testified that the pool ended in 2021 and Defendant sent Plaintiff her half of the initial investment and gain. (tr at 208):
A. I sent CBC her half of the initial investment and her half of the gains.
Q. Okay. And do you know how much you sent her?
A. Yes, I gave her a check for - - so the total amount of her half plus the gain was $1,578.00.
Plaintiff is seeking this Court to direct when the Defendant and/or the administrator of The Banana Fund disgorges the books and records of their earnings, those earnings shall be equitably distributed, with penalty to the Defendant to be determined at trial.
The Court finds that there is no credible evidence that the Banana Fund has not already been equitably divided between the parties and the Plaintiff's request for further equitable distribution of the Banana Fund is DENIED.
D. Reimbursement to Plaintiff of $108,000.00 Retroactive Social Security Award
The Plaintiff seeks the Court to direct the Defendant to reimburse the Plaintiff $108,000.00, the amount of her Social Security Disability Award, that Plaintiff expended due to alleged failure of Defendant to provide support to the Plaintiff.
Defendant testified regarding the Plaintiff's retroactive Social Security award, "I was going on the assumption that 50 percent of that, in an equitable way which is what I would hope would happen in any proceeding in court or any proceeding in life, in a fair way that that money that was earned during our marriage when I was taking care of her when she was sick and we were in financial distress, that that was marital funds." (tr at 22, lines 3-8).
The proceeds of the disability insurance policies are separate property. (see Masella v Masella, 67 A.D.3d 749 [2d Dept 2009] citing Domestic Relations Law § 236 [B] [1] [d]; Bernstein v Bernstein, 18 A.D.3d 683 [2d Dept 2005]; Gann v Gann, 233 A.D.2d 188 [1st Dept 1996]; Fleitz v Fleitz, 200 A.D.2d 874 [3d Dept 1994]; Solomon v Solomon, 206 A.D.2d 971 [4th Dept 1994]).
Similarly, the proceeds of the Plaintiff's Social Security disability benefits also are her separate property and are not subject to equitable distribution. (see Masella v Masella, 67 A.D.3d 749 [2d Dept 2009] citing Wallach v Wallach, 37 A.D.3d 707 [2d Dept 2007]; Principe v Principe, 229 A.D.2d 522 [2d Dept 1996]; Fleitz v Fleitz, 200 A.D.2d 874 [3d Dept 1994]).
The Plaintiff has a valid assertation that her retroactive social security award was separate marital property, and the Plaintiff should be reimbursed as such. The Court has considered the Plaintiff's claim for reimbursement in connection with its award of the marital residence to the plaintiff and the Plaintiff's request for reimbursement of $108,000.00 for her retroactive Social Security award would be duplicative and is DENIED.
E. Reimbursement to Plaintiff Money Advanced by Plaintiff and Plaintiff's Parents
The Plaintiff seeks the Court to direct the Defendant to reimburse the Plaintiff money advanced by the Plaintiff and the Plaintiff's parents for expenses to promote the children's health, education and general welfare, including tuition and educational expenses for all three children.
The parties have stipulated, "at present and pursuant to Court Orders, CLC pays to CBC the total sum for spousal support of $1,804.82 and the total monthly sum of $2,940.00 as and for child support. There are no arrears." (tr at 4, lines 7-10).
The Court has further considered the previously discussed equitable distribution of the parties' marital residence and, accordingly, the Plaintiff's request for reimbursement of money advanced by Plaintiff and Plaintiff's parents for expenses to promote the children's health, education and general welfare, including tuition and educational expenses for all three children is DENIED.
F. Reimbursement to Plaintiff for Children-related Expenses
The Plaintiff seeks the Court to direct the Defendant to reimburse the Plaintiff money advanced by the Plaintiff for athletic expenses for public school lacrosse, private school and extracurricular football and lacrosse, travel soccer, and volleyball.
The parties have stipulated, "at present and pursuant to Court Orders, CLC pays to CBC the total sum for spousal support of $1,804.82 and the total monthly sum of $2,940.00 as and for child support. There are no arrears." (tr at 4, lines 7-10).
The Court has further considered the previously discussed equitable distribution of the parties' marital residence and, accordingly, the Plaintiff's request for reimbursement of money expended by Plaintiff for athletic expenses for public school lacrosse, private school and extracurricular football and lacrosse, travel soccer, and volleyball is DENIED.
G. Plaintiff's Retirement Account
Defendant seeks equitable distribution of the Plaintiff's retirement account that was wholly accumulated during the marriage (tr at 189) currently valued at $333,000.00 (tr at 188-189) with a commencement value of $293,265.00 (Plaintiff's Exhibit #6).
A credible and accurate accounting of the Defendant's retirement assets was not forthcoming in testimony. Defendant testified he accessed funds from his retirement accounts post commencement. (tr at 56-57). Defendant further testified that he continues to contribute to his retirement account that his company matches. (tr at 59).
This is a marriage of long duration. Defendant is the monied spouse. Plaintiff is unable to work due to her chronic myeloid leukemia and faces significant financial obstacles due to her restricted income capacity and her significant health care costs. The Court has considered the testimony and evidence submitted as factors in determining equitable distribution under Domestic Relations Law § 236 [B] [5] [d]. Accordingly, the Defendant's request for equitable distribution of the Plaintiff's retirement account is DENIED, and it is ORDERED that all the retirement assets presently in the Plaintiff's name shall remain the Plaintiff's assets and all the retirement assets in the Defendant's name shall remain the Defendant's assets.
II. Residential Custody of the Child, JCC
Plaintiff seeks a determination that the Plaintiff has residential custody of the child, JCC, for the purposes of determining child support calculations.
Defendant seeks a determination that the Defendant has residential custody of the child, JCC, for the purposes of determining child support calculations.
As of the trial date, the child, JCC, is residing in Staten Island at the marital home located at XXXX Court, Staten Island, New York. (tr at 150, lines 4-11). Plaintiff testified that the child has plans at some future date to attend college in Florida, but as of the trial date, the child is residing in Staten Island. (tr at 150, lines 10-20).
Plaintiff further testified regarding her child's enrollment in school in Florida, "I have not seen a document showing me enrollment or been included on any e-mails[.]" (tr at 178, lines 24- 25). Defendant testified that the child had resided with him in Florida from February 2022 until the end of May 2022. (tr at 223, lines 7-11).
While Defendant alleges that the child, JCC, would be returning to Florida, no proof as to enrollment in college was provided or any other documentation that the child would be relocating to the state of Florida with the Defendant.
Accordingly, the Defendant's request for a determination that the Defendant has residential custody of the child, JCC, for the purposes of determining child support calculations is DENIED and it is ORDERED that the Plaintiff is GRANTED residential custody of the child, JCC, for the purposes of determining child support calculations.
III. Maintenance
Plaintiff seeks Defendant to pay to the Plaintiff $5,000.00 per month in maintenance until December 25, 2027 and then $3,800.00 per month in non-durational maintenance thereafter; and Defendant to pay the cost of COBRA coverage for the Plaintiff for 36 months following the entry of the judgment of divorce and shall cause to have issued a Flexible Spending Account (FSA) card so that the FSA account may be accessed by the Plaintiff on behalf of the children and the Plaintiff.
Defendant seeks that maintenance for the Plaintiff be limited to $2,828.00 per month, in accordance with statutory guidelines and for a fixed duration of 9.9 years, ending when Plaintiff is eligible for full social security retirement benefits.
"The court may order maintenance in such amount as justice requires, considering, among other factors, the standard of living of the parties during the marriage, the distribution of marital property, the duration of the marriage, the health and present and future earning capacity of the parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance[.]" (see Belilos v Rivera, 164 A.D.3d 1411 [2d Dept 2018] citing Domestic Relations Law § 236[B] [6] [a]; D'Alauro v D'Alauro, 150 A.D.3d 675 [2d Dept 2017]).
Pursuant to Domestic Relations Law § 236 [B] [6] [e][1], the Court shall order post-divorce maintenance up to the income cap, "unless the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate, which finding shall be based upon consideration of any one or more of the following factors:"
(a) the age and health of the parties;
(b) the present or future earning capacity of the parties, including a history of limited participation in the workforce;
(c) the need of one party to incur education or training expenses;
(d) the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded;
(e) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
(f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
(g) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;
(h) the availability and cost of medical insurance for the parties;
(i) the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;
(j) the tax consequences to each party;
(k) the standard of living of the parties established during the marriage;
(l) the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage;
(m) the equitable distribution of marital property and the income or imputed income on the assets so distributed;
(n) the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
(o) any other factor which the court shall expressly find to be just and proper.
"The court may order maintenance in such amount as justice requires, considering, among other factors, the income and property of the parties, the standard of living of the parties during the marriage, the present and future earning capacity of the parties, the distribution of marital property, the duration of the marriage, the age and health of the parties, the ability of the party seeking maintenance to become self-supporting, and the reduced or lost lifetime earning capacity of the party seeking maintenance (see Yuliano v Yuliano, 175 A.D.3d 1354 [2d Dept 209] citing Domestic Relations Law former § 236 [B]; D'Alauro v D'Alauro, 150 A.D.3d 675 [2d Dept 2017]).
The Court may Order an award of maintenance to a party for life for an unlimited duration where there was testimony that the party's health might be impaired. (see Foy v. Foy, 121 A.D.2d 501 [2d Dept 1986]). In such a situation the Court would also be acting properly to direct the payor spouse to "continue in effect any existing medical, dental and life insurance for the benefit of the defendant[.]" (see id).
"It is well established that the amount and duration of maintenance is a matter committed to the sound discretion of the trial court (see Wilner v. Wilner, 192 A.D.2d 524 [2d Dept 1993]; Loeb v. Loeb, 186 A.D.2d 174 [2d Dept 1992]). In fixing the amount of such an award, a court must take into account the financial circumstances of both parties, including their reasonable needs and means (see Raviv v Raviv, 153 A.D.2d 932 [2d Dept 1989]; Foy v Foy, 121 A.D.2d 501 [2d Dept 1986]). A court must also consider the paying spouse's present and anticipated income, the payee spouse's present and future earning capacity, and both parties' preseparation standard of living (see Raviv v Raviv, 153 A.D.2d 932 [2d Dept 1989])." (see Feldman v. Feldman, 194 A.D.2d 207 [2d Dept 1993]).
A. Guideline Amount Calculation Spousal Maintenance
Plaintiff
Defendant[*14]
Gross Income
$30,276.00
$178,509.00
Total Income
$30,276.00
$178,509.00
FICA: Social Security tax paid
($0.00)
($9,381.00)
Medicare tax paid
($0.00)
($2,803.00)
New York City income tax paid
(1,806.00)
($0.00)
Adjusted CSSA Income
$28,470.00
$166,325.00
First Calculation
20% of payor's income up to and including the cap
$33,265.00
Minus 25% of payee's income
($7,117.50)
Result 1
$26,147.50
Second Calculation
Payor's income up to and including the cap
$166,325.00
Plus payee's income
$28,470.00
Combined income
$194,795.00
40% of combined income
$77,918.00
Minus payee's income
($28,470.00)
Result 2
$49,448.00
Lower of the two results
$26,147.50
Accordingly, the guideline spousal maintenance amount payable by the Defendant to the Plaintiff is $26,147.50 annually or $2,178.96 monthly.
B. Exceeding Guideline Amount Calculation Spousal Maintenance
Pursuant to Domestic Relations Law § 236 [B] [6][e][2], "Where the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate and the court adjusts the post-divorce maintenance guideline obligation pursuant to this paragraph, the court shall set forth, in a written decision or on the record, the unadjusted post-divorce maintenance guideline obligation, the factors it considered, and the reasons that the court adjusted the post-divorce maintenance obligation. Such decision shall not be waived by either party or counsel."
The Court has considered all the factors outlined in Domestic Relations Law § 236 [B] [6][e][1] in conjunction with the applicable caselaw discussed above. The Court is especially concerned with the following factors:
(1) the health of Plaintiff, due to her chronic myeloid leukemia;
(2) the Plaintiff's very limited present and future earning capacity due to her disability status;
(3) the availability and cost of medical insurance for the parties;
(4) the standard of living the parties established during the marriage;
(5) the equitable distribution of marital property and the income or imputed income on the assets distributed;
Accordingly, monthly spousal maintenance is GRANTED to the Plaintiff for a set time certain commencing with this Order and ending when the Plaintiff reaches the age of 62.
Defendant is ORDERED to pay to the Plaintiff monthly spousal maintenance in the amount of $2,750.00 [Two Thousand Seven Hundred Fifty Dollars and No Cents] for the duration of the period of time that Defendant is concurrently paying Child Support to the Plaintiff and upon completion of his child support obligation, the Defendant is ORDERED to pay monthly spousal maintenance in the amount of $3,250.00 [Three Thousand Two Hundred Fifty Dollars and No Cents] until the Plaintiff reached the age of 62.
C. COBRA Coverage for Plaintiff
Plaintiff seeks Defendant to pay the cost of COBRA health insurance coverage for the Plaintiff for 36 months following the entry of the judgment of divorce.
Pursuant to Domestic Relations Law § 236 [B] [8] [a], "[i]n any matrimonial action the court may order a party to purchase, maintain or assign a policy of insurance providing benefits for health and hospital care and related services for either spouse or children of the marriage not to exceed such period of time as such party shall be obligated to provide maintenance, child support or make payments of a distributive award."
Directing the Defendant to maintain existing health insurance coverage for Plaintiff's benefit as per Domestic Relations Law § 236 [B] [8] is coterminous with the party's obligation to provide maintenance in view of plaintiff's poor health and defendant's greater assets. (see Feldman v Feldman, 194 A.D.2d 207 [2d Dept 1993]).
The Plaintiff's request for the Defendant to pay the cost of COBRA health insurance coverage for the next 36 months is within the parameters envisioned by Domestic Relations Law § 236 [B] [8] [a]. The Court has also considered the Plaintiff's health issues, the relative future earning potential of the parties and the additional statutory factors previously discussed above.
Accordingly, the Plaintiff's request that the Defendant to pay the cost of COBRA health insurance coverage for the Plaintiff for 36 months following the entry of the judgment of divorce is GRANTED and the Defendant is ORDERED to pay the cost of COBRA health insurance coverage for the Plaintiff for 36 months following the entry of the judgment of divorce.
D. Plaintiff Access to Defendant's Flexible Spending Account for the Benefit of the Plaintiff
The Plaintiff seeks the Defendant to have issued a Flexible Spending Account card so that the Defendant's Flexible Spending account may be accessed by the Plaintiff on behalf of the Plaintiff.
The Plaintiff's request that the Defendant to have issued a Flexible Spending Account card so that the Defendant's Flexible Spending account may be accessed by the Plaintiff on behalf of the Plaintiff is DENIED.
IV. Child Support
Plaintiff seeks (a) the Defendant to pay the Plaintiff child support in the amount of $3,358.00 per month; (b) the Defendant to pay 85% of the children's tuition/school related costs through high school, reasonable camp expenses, tutoring, college preparatory courses, high school SAT/ACT testing fees, college application fees, and athletic expenses; (c) the Defendant to pay 100% of all college educational expenses for each child including but not limited to tuition, room, board, books, fees, extracurricular expenses, and reasonable transportation to and from school each academic year, until the sooner of each child reaching age 22 or graduates; and (d) the Defendant to pay 85% of the children's unreimbursed medical expenses.
The Plaintiff further seeks (e) the Defendant shall obtain and maintain at his sole cost and expense, and designate the children as sole irrevocable beneficiaries of, a term life insurance policy insuring his life, and having a face value of at least $750,000.00, for as long as he is required to support any of the benefiting children, and the Plaintiff shall be named the trustee of this policy; (f) the Defendant to reimburse the Plaintiff for children's athletic expenses for public school lacrosse, private school and extracurricular football and lacrosse, travel soccer; and volleyball; (g) the Defendant to reimburse the Plaintiff money advanced by the Plaintiff and the Plaintiff's parents for expenses to promote the children's health, education and general welfare, including tuition and educational expenses for the children; and (h) a determination that the Plaintiff is to claim the parties two children, CJC and NJC, as tax exemptions.
The Defendant seeks (i) his child support obligation to the Plaintiff to be set in the amount of $1,270.10 per month or in the alternative to set his child support obligation to the Plaintiff in the amount of $2,136.92 per month and Plaintiff's child support obligation to the Defendant to be set in the amount of $866.82 per month; and (ii) consented to or necessary add-on expenses to be paid by the parties according to their pro rata shares, the Plaintiff's pro rata share set at 32% and Defendant's pro rata share set at 68%.
The Defendant further seeks (iii) that in regard to both retrospective and prospective add-on costs, he should not to be required to contribute to expenses that he was not consulted about and did not agree to; (iv) the parties should each pay their pro rata shares of the children's medical expenses, including the cost of any insurance; and (v) that he should not be liable for expenses solely incurred by the Plaintiff and without his consent or for those expenses already included in the amount of basic child support.
A. Guidelines Child Support
"A parent has an obligation to provide support for his or her child's basic needs, an obligation which is addressed in Domestic Relations Law § 240 [1-b] [c] [1], [2]." (see Cimons v Cimons, 53 A.D.3d 125 [2d Dept 2008]).
"The Child Support Standards Act ( Domestic Relations Law § 240 [1-b] [hereinafter CSSA]) provides 'a precisely articulated, three-step method for determining child support' (citing Elias v Elias, 101 A.D.3d 938 , [2d Dept 2012]; quoting Matter of Cassano v Cassano, 85 N.Y.2d 649 [1995]). This three-step process includes (1) computing a combined parental income, (2) multiplying that income, up to a certain income cap, by a specific percentage, and (3) determining the amount of income that should be considered for child support purposes if the combined parental income exceeds the income cap (Matter of Cassano v Cassano, 85 N.Y.2d 649 [1995])." (see Boltz v Boltz, 178 A.D.3d 656 [2d Dept 2019]).
Plaintiff
Defendant
Adjusted CSSA Income
$28,470.00
$166,325.00
Maintenance Adjustment
$33,000.00
($33,000.00)
Income Adjusted for Maintenance
$61,470.00
$133,325.00
Combined Parental Income
$194,795.00
Statutory Combined Parental Income Cap
$163,000.00
Applicable Child Support Percentage
29%
Annual Parental Support Obligation
$47,270.00
Share of Combined Parental Income
32%
68%
Annual Pro Rata Shares
$14,916.64
$32,353.36
Accordingly, it is ORDERED that the Defendant to pay to the Plaintiff monthly child support in the amount of $2,696.11.
B. Pre-College Educational Add-On Expenses for the Children
It is ORDERED that all pre-college educational add-on expenses for the children, including, the children's tuition/school related costs through high school, reasonable camp expenses, tutoring, college preparatory courses, high school SAT/ACT testing fees, college application fees, and athletic expenses shall be divided on a pro-rata basis. Plaintiff is responsible for 32% of all pre-college educational add-on expenses and the Defendant is responsible for 68% of all pre-college educational add-on expenses.
C. College Educational Expenses
It is ORDERED that all college educational expenses for each child including, tuition with a SUNY tuition cap, room, board, books, fees, extracurricular expenses that are agreed to in advance by the Plaintiff and the Defendant, and reasonable transportation to and from school each academic year, until the sooner of each child reaching age 22 or graduates shall be divided on a pro-rata basis. Plaintiff is responsible for 32% of all college educational expenses and the Defendant is responsible for 68% of all college educational expenses.
D. Uncovered and Unreimbursed Medical Expenses of Children
It is ORDERED that all the children's uncovered and unreimbursed health expenses, including but not limited to hospital, medical, prescription, psychological, dental, orthodontic, optical, and related health care expenses shall be divided on a pro-rata basis. Plaintiff is responsible for 32% of all college educational expenses and the Defendant is responsible for 68% of all college educational expenses.
E. Plaintiff Access to Defendant's Flexible Spending Account for the Benefit of the Children
The Plaintiff seeks the Defendant to have issued a Flexible Spending Account card so that the Defendant's Flexible Spending account may be accessed by the Plaintiff on behalf of the children.
It is ORDERED that the Defendant have issued a Flexible Spending Account card so that the Defendant's Flexible Spending account may be accessed by the Plaintiff on behalf of the children.
F. Health Insurance for Children
It is ORDERED that each party shall maintain and continue the existing health and hospitalization insurance coverages for the benefit of the children for so long as the children are entitled to receive support pursuant to the terms hereof, or for so long as they are eligible to remain on their parents' plans, with the Defendant's plan being primary and the Plaintiff's coverage being secondary.
G. Life Insurance
It is ORDERED that the Defendant shall obtain and maintain at his sole cost and expense, and designate the children as sole irrevocable beneficiaries of, a term life insurance policy insuring his life, and having a face value of at least $200,000.00, for as long as Defendant is required to support any of the benefiting children pursuant to the terms of this Decision and Order. The Plaintiff shall be named trustee of this policy.
V. Counsel Fees
Plaintiff seeks the Defendant to pay Plaintiff's counsel fees in the amount of $85,238.00 pursuant to the amount of time expended due to the Defendant's willfully contumacious behavior, all of which led to the necessity of protracted dispositions of the Defendant, and, because the Defendant never did relent, the necessity of trial.
Defendant seeks a determination that Plaintiff is not entitled to recover counsel fees because Plaintiff's attorney has not substantially complied with 22 NYCRR 1400.2 and 22 NYCRR 1400.3.
Pursuant to Domestic Relations Law § 237 [a], "There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded."
"An award of reasonable counsel fees in a matrimonial action is a matter within the discretion of the trial court[.]" (see Guzzo v Guzzo, 110 A.D.3d 765 [2d Dept 2013] citing Domestic Relations Law § 237 ; De Cabrera v. Cabrera-Rosete, 70 N.Y.2d 879 [1987]; Quinn v Quinn, 73 A.D.3d 887 [2d Dept 2010]).
"An attorney may recover fees from a client or the client's spouse only if the attorney has substantially complied with 22 NYCRR 1400.2 and 1400.3, which, inter alia, require counsel to provide the client with "written, itemized bills at least every 60 days[.]" (see Matter of Tarpey v Tarpey, 163 A.D.3d 687 [2d Dept 2018] citing Gahagan v Gahagan, 51 A.D.3d 863 [2d Dept 2008]).
A party must demonstrate, prima facie, that their attorney substantially complied with 22 NYCRR 1400.2 and 1400.3 . (see Piza v Baez-Piza, 145 A.D.3d 808 [2d Dept 2016]. "The court rules imposing certain requirements upon attorneys who represent clients in domestic relations matters (see 22 NYCRR part 1400) were designed to address abuses in the practice of matrimonial law and to protect the public (see Hovanec v Hovanec, 79 A.D.3d 816 [2d Dept 2010]). Substantial compliance with those rules is required, and such a showing must be made on a prima facie basis as part of the moving party's papers[.]" (see Gottlieb v Gottlieb, 101 A.D.3d 678 [2d Dept 2012]).
"Absent substantial compliance with 22 NYCRR 1400.3, which requires the execution and filing of a retainer agreement setting forth, inter alia, the terms of compensation and the nature of services to be rendered, an attorney may not recover a fee from an adversary spouse[.]" (see Sherman v Sherman, 34 A.D.3d 670 [2d Dept 2006]).
"An attorney shall provide a prospective client with a statement of client's rights and responsibilities in a form prescribed by the Appellate Divisions, at the initial conference and prior to the signing of a written retainer agreement. If the attorney is not being paid a fee from the client for the work to be performed on the particular case, the attorney may delete from the statement those provisions dealing with fees. The attorney shall obtain a signed acknowledgement of receipt from the client." (see 22 NYCRR § 1400.2 ).
"An attorney who undertakes to represent a party and enters into an arrangement for, charges or collects any fee from a client shall execute a written agreement with the client setting forth in plain language the terms of compensation and the nature of services to be rendered. The agreement, and any amendment thereto, shall be signed by both client and attorney, and, in actions in Supreme Court, a copy of the signed agreement shall be filed with the court with the statement of net worth." (see 22 NYCRR § 1400.3 ).
The key language pertaining to the with requirements under 22 NYCRR § 1400.2 and 22 NYCRR § 1400.3 is substantial compliance. The Court must consider whether Plaintiff's counsel substantially complied with 22 NYCRR § 1400.2 and 22 NYCRR § 1400.3.
22 NYCRR § 1400.2 requires an attorney "provide a prospective client with a statement of client's rights and responsibilities in a form prescribed by the Appellate Divisions[.]" Plaintiff did not submit a copy as an exhibit at trial, however, a review of the Court's NYSCEF file indicates that a Statement of Client's Rights and Responsibilities was executed by the Plaintiff and her counsel on October 1, 2018 and was uploaded to NYSCEF by the Court on June 23, 2020. (NY St Cts Filing [NYSCEF] Doc Nos. 18).
22 NYCRR § 1400.3 requires a retainer agreement to be signed by both client and attorney, and, in actions in Supreme Court, a copy of the signed agreement shall be filed with the court with the statement of net worth. No copies of the retainer agreement between the Plaintiff and her attorney were annexed to any of the statements of net worth or otherwise submitted into evidence. A review of the Court's NYSCEF file does indicate that a Retainer Agreement was executed by the Plaintiff and her attorney on October 1, 2018 and was uploaded to NYSCEF by the Court on June 23, 2020. (see id).
The final requirement is for attorney to submit "written, itemized bills at least every 60 days[.]" (see Matter of Tarpey v Tarpey, 163 A.D.3d 687 [2d Dept 2018] citing Gahagan v Gahagan, 51 A.D.3d 863 [2d Dept 2008]). On September 12, 2022, Plaintiff submitted billing statements as exhibits accompanying the Plaintiff's summation submission. (NY St Cts Filing [NYSCEF] Doc Nos. 168; NY St Cts Filing [NYSCEF] Doc Nos. 169).
The billing statements that span the time period from August 10, 2018 through October 25, 2020 exhibit itemized billing on a monthly basis. (see NY St Cts Filing [NYSCEF] Doc Nos. 168). These statements tabulate billing in the total amount of $21,712.22. (see id).
The billing document that spans the time period from January 25, 2021 through September 11, 2022 exhibits one continuous billing stream for the period totaling $63,526.00. (NY St Cts Filing [NYSCEF] Doc Nos. 169).
Defendant is clearly the monied spouse and Plaintiff is entitled to counsel fees pursuant to Domestic Relations Law § 237 [a]. The Court finds that the Plaintiff was substantially in compliance with 22 NYCRR § 1400.2 and 22 NYCRR § 1400.3. Both client with a statement of client's rights and responsibilities and the retainer agreement were properly executed and placed in the possession of the Court.
In exercising its discretionary power to award counsel fees, the court has reviewed the financial circumstances of both parties together with all the other circumstances of the case, including the relative merit of the parties' positions, as well as the tactics of the Defendant in unnecessarily prolonging the litigation. (see Franco v Franco, 97 A.D.3d 785 [2d Dept 2012]).
Based upon the billing statements provided by Plaintiff, the length of the proceedings, and Mr. Lambert's hourly rate, this Court finds it reasonable under the circumstances for the Plaintiff as the less monied spouse to receive from the Defendant counsel fees in the sum of $25,000.00.
The court may charge awarded counsel fees as an offset against party's equitable distribution award. (see Kaufman v Kaufman, 189 A.D.3d 31 [2d Dept 2020] citing Karg v Kern, 125 A.D.3d 527 [1st Dept 2015]; see Duval v Duval, 144 A.D.3d 739 [2d Dept 2016]). In lieu of any cash settlement for equitable distribution and counsel fees, the court may award sole ownership of the marital residence and its furnishings to a party. (see Stempler v Stempler, 143 A.D.2d 410 [2d Dept 1988]).
The Court has considered the Plaintiff's claim for an award of counsel fees pursuant to Domestic Relations Law § 237 [a] in connection with its award of the marital residence to the plaintiff and the Plaintiff's request for an award of counsel fees would be duplicative and is DENIED.
Decision and Order after Trial
IN SUMMARY, IT IS HEREBY ORDERED AS FOLLOWS:
ORDERED that the Defendant transfer all right, title, and interest in and to the real property, located at XXXX Court, Staten Island, New York, to the Plaintiff by means of a bargain and sale deed with covenants and that all household furnishings and personal effects contained within the parties' marital residence, located at XXXX Court, Staten Island, New York, shall constitute the sole and exclusive property of the Plaintiff.
ORDERED that all marital debt incurred by either party prior to the commencement of the divorce and regardless of whether the debt is in joint name or either parties' individual or corporate name shall be divided on a pro-rata basis. Plaintiff is responsible for 32% of all pre-commencement marital debt and the Defendant is responsible for 68% of all pre-commencement marital debt.
ORDERED that all the retirement assets presently in the Plaintiff's name shall remain the Plaintiff's assets and all the retirement assets in the Defendant's name shall remain the Defendant's assets.
ORDERED that the Plaintiff is GRANTED residential custody of the child, JCC, for the purposes of determining child support calculations.
ORDERED to pay to the Plaintiff monthly spousal maintenance in the amount of $2,750.00 [Two Thousand Seven Hundred Fifty Dollars and No Cents] for the duration of the period of time that Defendant is concurrently paying Child Support to the Plaintiff and upon completion of his child support obligation, the Defendant is ORDERED to pay monthly spousal maintenance in the amount of $3,250.00 [Three Thousand Two Hundred Fifty Dollars and No Cents] until the Plaintiff reached the age of 62.
ORDERED to pay the cost of COBRA health insurance coverage for the Plaintiff for 36 months following the entry of the judgment of divorce.
ORDERED that the Defendant to pay to the Plaintiff monthly child support in the amount of $2,696.11 [Two Thousand Six Hundred Ninety-Six Dollars Eleven Cents].
ORDERED that all pre-college educational add-on expenses for the children, including, the children's tuition/school related costs through high school, reasonable camp expenses, tutoring, college preparatory courses, high school SAT/ACT testing fees, college application fees, and athletic expenses shall be divided on a pro-rata basis. Plaintiff is responsible for 32% of all pre-college educational add-on expenses and the Defendant is responsible for 68% of all pre- college educational add-on expenses.
ORDERED that all college educational expenses for each child including, tuition with a SUNY tuition cap, room, board, books, fees, extracurricular expenses that are agreed to in advance by the Plaintiff and the Defendant, and reasonable transportation to and from school each academic year, until the sooner of each child reaching age 22 or graduates shall be divided on a pro-rata basis. Plaintiff is responsible for 32% of all college educational expenses and the Defendant is responsible for 68% of all college educational expenses.
ORDERED that all the children's uncovered and unreimbursed health expenses, including but not limited to hospital, medical, prescription, psychological, dental, orthodontic, optical, and related health care expenses shall be divided on a pro-rata basis. Plaintiff is responsible for 32% of all college educational expenses and the Defendant is responsible for 68% of all college educational expenses.
ORDERED that the Defendant have issued a Flexible Spending Account card so that the Defendant's Flexible Spending account may be accessed by the Plaintiff on behalf of the children.
ORDERED that each party shall maintain and continue the existing health and hospitalization insurance coverages for the benefit of the children for so long as the children are entitled to receive support pursuant to the terms hereof, or for so long as they are eligible to remain on their parents' plans, with the Defendant's plan being primary and the Plaintiff's coverage being secondary.
ORDERED that the Defendant shall obtain and maintain at his sole cost and expense, and designate the children as sole irrevocable beneficiaries of, a term life insurance policy insuring his life, and having a face value of at least $200,00.00, for as long as Defendant is required to support any of the benefiting children pursuant to the terms of this Decision and Order. The Plaintiff shall be named trustee of this policy.
ORDERED, that the Clerk of the Court shall enter judgment accordingly.
The foregoing shall constitute the Decision and Order of this Court after trial.