Opinion
09-30-2024
C.N., Plaintiff, v. R.N., Defendant.
Patricia Bisesto, Esq. & Devin L. Donohue, Esq., counsel for the plaintiff/wife, Defendant/husband, appeared as a self-represented litigant.
Unpublished Opinion
Patricia Bisesto, Esq. & Devin L. Donohue, Esq., counsel for the plaintiff/wife, Defendant/husband, appeared as a self-represented litigant.
James L. Hyer, J.
RELEVANT FACTUAL AND PROCEDURAL HISTORY
The parties were married on [Redacted], in [Redacted], in a civil ceremony. Together, they have two unemancipated children: (1) C.A.M., date of birth XX/XX/2012; and (2) C.A.S., date of birth XX/XX/2015; (hereinafter collectively referred to as the "Children"). No further children of the marriage are expected.
Plaintiff commenced this matrimonial action on July 6, 2023 with the filing of a Summons, Verified Complaint, and ancillary documents (NYSCEF Doc. No. 1) (hereinafter referred to as the "Complaint"). Notably, the Complaint's sole cause of action for divorce asserted is pursuant to New York State Domestic Relations Law (hereinafter referred to as "DRL") § 170(7), alleging that the parties' marriage had irretrievably broken down for a period in excess of six months seeking the following relief:
"WHEREFORE, the Plaintiff demands judgment against Defendant, said judgment to grant the following relief:
1. Divorcing the parties and dissolving the marital relationship which has heretofore existed;
2. Awarding sole legal custody of the Children to the Plaintiff and granting Plaintiff primary physical/residential custody of the unemancipated Children of the marriage;
3. Awarding Plaintiff exclusive use and occupancy of the marital residence;
4. Awarding Plaintiff exclusive use and possession of the contents of the marital residence;
5. Directing Defendant to pay his pro rata sum of child support to Plaintiff, including, but not limited to, periodic payments, and, where appropriate, childcare costs, health care costs (including medical insurance), and costs for private and/or college educational expenses;
6. Granting Plaintiff, a person not in receipt of aid to dependent Children, child support enforcement services, upon submission of a formal request for same in the manner specified by Section 111-g of the Social Services Law;
7. Awarding Plaintiff equitable distribution of marital property, including a distributive award to Plaintiff if required or appropriate to affect such equitable distribution;
8. Awarding Plaintiff pendente lite and post-divorce maintenance;
9. Declaring Plaintiff s separate property;
10. Directing Defendant to maintain life insurance coverage on his life with Plaintiff to be designated as irrevocable beneficiary for his benefit and for the Children's benefit;
11. Awarding Plaintiff counsel fees, expert fees, and other litigation expenses;
12. Granting each party the right to resume the use of any maiden name or other pre-marriage surname; and
13. Granting such other and further relief as the Court deems just and appropriate."
On November 10, 2023, a Request for Judicial Intervention was filed seeking a Preliminary Conference (NYSCEF Doc. No. 3), along with a Preliminary Conference Request (NYSCEF Doc. No. 5).
On December 15, 2023, a Court Notice was issued scheduling a Preliminary Conference to be held on January 3, 2024, at 11:30 a.m. (NYSCEF Doc. No. 7).
On December 21, 2023, Plaintiff filed an Affidavit of Service indicating Defendant had been served with the Complaint on November 6, 2023 (NYSCEF Doc. No. 8).
On January 3, 2024, a Preliminary Conference was held wherein appearances were made by Plaintiff, Plaintiff's counsel and Defendant as a self-represented litigant after which a Preliminary Conference Order was entered (NYSCEF Doc. No. 11) (hereinafter referred to as the "Preliminary Conference Stipulation and Order"), which directed that a Compliance Conference be held on January 12, 2024, at 2:00 p.m. With respect to the grounds for dissolution of the parties' marriage, the parties agreed to proceed pursuant to DRL § 170(7) agreeing that the parties' marriage had irretrievably broken down for a period in excess of six months prior to the date of commencement of this action and that Plaintiff would be granted a judgment of divorce against Defendant after all of the ancillary issues arising out of the dissolution of the parties' marriage were resolved pursuant to agreement between the parties or Court Decision.
On January 3, 2024, an Order was entered which consolidated with this action the proceedings pending between the parties in the Westchester County Family Court under File No. [Redacted], and Docket Nos. [Redacted]; [Redacted]; [Redacted]; and [Redacted] (NYSCEF Doc. No. 12). The Court further entered a Real Property Appraiser Order appointing [Redacted] to prepare an appraisal report for the current value of the real property known as [Redacted], (hereinafter referred to as the "Marital Domicile"), with each party required to pay half the fee subject to reallocation at trial (NYSCEF Doc. No. 13). The Court further entered an Order appointing [Redacted], Esq., as attorney for the Children, with each party paying half the fee for her services subject to reallocation at trial (NYSCEF Doc. No. 14).
On January 3, 2024, a Court Notice was issued adjourning the Compliance Conference to be held on January 24, 2024, at 10:00 a.m. (NYSCEF Doc. No. 15).
On January 5, 2024, Plaintiff filed a Statement of Net Worth (NYSCEF Doc. No. 16) (hereinafter referred to as "Plaintiff's SNW").
On January 11, 2024, Defendant's then legal counsel filed a letter requesting an adjournment of the Compliance Conference (NYSCEF Doc. No. 20) which was granted by Court Order to be held on January 26, 2024, at 11:30 a.m. (NYSCEF Doc. No. 21).
While Defendant's then counsel identified himself to the Court as Defendant's counsel through his correspondence with the Court, at that time no Notice of Appearance had been filed by Defendant's then legal counsel, nor did Defendant's counsel ever file a Notice of Appearance despite registering on NYSCEF as Defendant's counsel and appearing in Court as Defendant's legal counsel.
On January 18, 2024, Plaintiff's counsel requested a Pre-Motion Conference (NYSCEF Doc. No. 22) asserting the following:
"As you will remember, I represent Plaintiff, [Redacted], in regard to the above-referenced matter. [Redacted], Esq. of the law firm [Redacted] represents Defendant, [Redacted]. We appeared before Your Honor for a Preliminary Conference on January 3, 2024. As part of the Preliminary Conference Order, Your Honor directed that Statements of Net Worth be filed by January 8, 2024, along with the Retainer Statements. As Plaintiff's counsel, we uploaded the Statement of Net Worth on January 5, 2024, having previously uploaded the Retainer Agreement on January 3, 2024. To date, Defendant has not filed his Statement of Net Worth nor the retainer and is in violation of this Court's Order. Defendant and Plaintiff have been living separate and apart and Defendant has not provided any support to Plaintiff and the Children who reside with her. We are next scheduled for an appearance before Your Honor on January 26, 2024. I would ask as part of that conference, that this letter be deemed a pre-motion request to compel Defendant's filing of a Statement of Net Worth or in the alternative, to preclude Defendant from offering any testimony regarding his financial circumstances."
On January 18, 2024, the Court granted this request and directed Defendant to comply with the prior Court ordered disclosure (NYSCEF Doc. No. 24).
On January 22, 2024, a Court Notice was issued adjourning the Compliance Conference to be held on February 2, 2024, at 11:30 a.m. (NYSCEF Doc. No. 25).
On February 1, 2024, Plaintiff's counsel filed a letter asserting the following:
"I represent Plaintiff, [Redacted], in regard to the above-referenced matter. [Redacted], Esq. of the law firm [Redacted] represents Defendant, [Redacted]. We appeared before Your Honor for a Preliminary Conference on January 3, 2024. As part of the Preliminary Conference Order, Your Honor directed that Statements of Net Worth be filed by January 8, 2024, along with the Retainer Statements. We complied with your directive. On January 18, 2024, I wrote a letter to Your Honor because Defendant has not paid any child support in two (2) months and had not filed his Net Worth Statement. Your Honor replied that Defendant was to file the required documents ASAP. To date, Defendant has still not filed his Statement of Net Worth nor has counsel's retainer been filed. Accordingly, Defendant is in violation of this Court's Order. Although we have received limited documentation from Defendant regarding his income, I used Defendant's IRS transcript from 2022 along with [Redacted] 2022 W2's and calculated the basic child support numbers. For the Court's convenience, I have attached child support calculation worksheets along with verification of the parties' 2022 income. I am requesting that at our conference tomorrow, the Court issue a child support order in the amount of $2,144.58 per month along with statutory add-ons with Defendant's share being fifty (50%) percent."
On February 2, 2024, Defendant filed his Statement of Net Worth (NYSCEF Doc. No. 28) (hereinafter referred to as "Defendant's SNW").
On February 2, 2024, a Compliance Conference was held wherein all parties and counsel appeared and a settlement as to custody and access of the parties' Children was placed on the record, followed by an allocution of the parties, after which a Court Order was entered directing the parties to order and submit the Court transcript to be so ordered, setting forth discovery deadlines and scheduling a Compliance Conference to be held on March 18, 2024, at 9:30 a.m. (NYSCEF Doc. No. 29). On February 16, 2024, the Court transcript was so ordered and filed (NYSCEF Doc. No. 32) (hereinafter referred to as the "Custody Agreement").
On March 18, 2024, a Compliance Conference was held wherein all parties and counsel appeared and the terms modifying the Custody Agreement were placed upon the record, which are set forth in a Court transcript so ordered and filed on April 17, 2024 (NYSCEF Doc. No. 36), after which a Pre-Trial Conference Order (NYSCEF Doc. No. 34) was entered providing the following:
"1. This matter is hereby certified ready for trial. No further discovery shall be permitted except upon a showing of compelling and unanticipated circumstances. Any application for post-note discovery must be pursued in accordance with the Matrimonial Part Rules.
2. Plaintiff shall serve and file a Note of Issue and Certificate of Readiness within three (3) days of this Order, if not done so already.
3. All dates in the Preliminary Conference Order remain in effect.
4. The trial of this action is hereby scheduled to commence on Monday. June 10, 2024 and proceed on Wednesday, June 12, 2024. 9:00 a.m.-5:00 p.m. each day in courtroom 1003. The court has allocated two (2) days for the trial. Absent unanticipated circumstances, the trial shall be concluded within these allocated days. The trial shall continue on successive days until completion. As the trial date is more than two months hence, no adjournment requests will be considered (See 22 NYCRR § 125.1[g]). Expert reports must be furnished in accordance with NYCRR § 202.16(g). Failure to exchange and file the reports not later than sixty (60) days prior to the trial date and replies not later than thirty (30) days before the trial date, may, in the Court's discretion, preclude use of the expert.
5. Counsel and parties are directed to comply with all portions of the Westchester Supreme Court Matrimonial Operational Rules and Individual Part Rules of Justice James L. Hyer in preparation for the Pre-Trial Conference and Trial scheduled herein.
6. A Settlement Conference shall be held on Tuesday, May 28, 2024 at 2:00 p.m., in person at the Westchester County Supreme Court, Courtroom 1003, with all parties and counsel present. Counsel/self-represented litigants must bring to the conference: (1) the complete case file; (2) completed child support and spousal support worksheets; and (3) any evaluation reports.
7. A Pre-Trial Conference shall be held on Monday, June 10, 2024 at 9:00 a.m., in person at the Westchester County Supreme Court with all parties and counsel present.
8. Motions in limine must be in writing and made returnable on the day of the Pre-Trial Conference. Such motions must be made no less than ten (10) days' notice to opposing counsel and/or self-represented parties. Opposition submissions must be made no less than five (5) days' notice to opposing counsel and/or self-represented parties. No reply submissions may be made. To the extent possible, the Court will decide such motions prior to commencement of the Trial. To the extent that any Motions in limine are not made timely as set forth herein, such applications will be waived.
9. At the Pre-Trial Conference, the Court shall be provided with a Trial Notebook with the following included with tabs for each section (except for exhibits which shall be in a separate binder with tabs), a copy of which shall be filed on NYSCEF:
a. Marked pleadings.
b. A copy of all prior Decisions or Orders on motions issued in the case.
c. A fully executed Stipulation of relevant facts that are not in dispute. The Court expects that no matter how contentious the case, there will be at least some facts that are not in dispute (e.g., the date of the marriage, the Children's names and birth dates, the location of any residential real estate and the approximate date of acquisition, approximate cost, the approximate balance on any mortgage and the dates of creation of financial accounts and deferred compensation).
d. Any forensic reports, appraisals, evaluations conducted in the matter.
e. 3101(d) Expert Witness Disclosures made in this matter with proofs of service.
f. An exhibit list and pre-marked exhibits. Only those items that are received in evidence will be marked by the reporter. Copies of all exhibits intended to be offered must be presented to the Court in a ringed notebook with a table of contents, with Plaintiffs exhibits numbered, and Defendant's exhibits lettered in the order in which they are generally intended to be used, with external tabs separating each exhibit. Counsel shall exchange their notebooks with proposed exhibits at least seven (7) business days prior to the Pre-Trial Conference. Failure to timely submit an exhibit list and proposed exhibits may result in preclusion. At the Pretrial Conference, counsel must either stipulate to the admission of the exhibits to be offered by the adverse party or state the ground or any objection to admission of any such exhibit. Such Stipulation must be prepared before the Pre-Trial Conference, in writing, so that it may be presented to the Court at the Pre-Trial Conference. Counsel must be prepared to argue to the court at the Pre-Trial conference, the admissibility of any exhibits to which an objection is taken. Counsel are advised that the failure to include an exhibit in the exhibit list and/or to participate in the exhibit exchange provided for herein, may result in preclusion of that exhibit.
g. A List of Witnesses, including the address of each witness, the time anticipated for the witness' direct examination, and the general subject matter of his or her testimony. The failure to identify a witness may result in the preclusion of that witness' testimony.
h. A Joint Statement of Proposed Disposition. To the extent the parties disagree on any item, Plaintiff s position should be set out first, followed by Defendant's position.
i. A Child Support Worksheet, if applicable.
j. A Spousal Support Worksheet, if applicable.
k. Updated Statements of Net Worth (with the latest available supporting documents, such as income tax returns, W-2s, brokerage and retirement plan statements).
l. Memoranda of Law concerning any procedural, evidentiary, or other legal issue which the parties anticipate the Court will need to determine.
NOTICE: FAILURE TO COMPLY WITH THE NEW YORK STATE CIVIL PROCEDURE LAW AND RULES, UNIFORM RULES OF THE SUPREME COURT, THE INDIVIDUAL PART RULES OF JUSTICE JAMES L. HYER AND THIS PRE-TRIAL ORDER MAY RESULT IN PRECLUSION OF WITNESSES AND/OR EVIDENCE AT TRIAL, AND THE IMPOSITION OF SANCTIONS."
On May 21, 2024, a Court Notice was issued directing the parties to file a Note of Issue by May 22, 2024 (NYSCEF Doc. No. 37), and the same was filed that day (NYSCEF Doc. No. 38).
On May 23, 2024, a Consent to Change Attorney was filed wherein Defendant's then counsel was noted as being discharged with Defendant proceeding as a self-represented litigant (NYSCEF Doc. No. 39).
On May 23, 2024, a Court Notice was issued wherein the Consent to Change Attorney was rejected and Defendant's then counsel was directed to comply with the Court Rules by filing a motion by order to show cause seeking to be relieved (NYSCEF Doc. No. 40).
On May 24, 2024, Defendant's then counsel filed an order to show cause (NYSCEF Doc. Nos. 41-43) (hereinafter referred to as "Motion Sequence #1"), seeking the entry of an Order granting the following relief: (1) Granting the Defendant's then counsel, leave to withdraw as counsel for Defendant; (2) Granting Defendant's then counsel, such other and further relief as the Court may deem just and proper; and (3) that pending the hearing and determination of this application, all further proceedings in this matter shall be, and they hereby are, stayed. Motion Sequence #1 was conformed (NYSCEF Doc. No. 44) directing that a briefing schedule would be set on the return date, wherein parties and counsel were directed to appear, to be held on May 28, 2024.
On May 28, 2024, a Conference was held wherein all parties and counsel appeared, and wherein all parties and counsel consented to the relief requested in Motion Sequence #1, after which an Order (NYSCEF Doc. No. 46) was entered providing the following:
"It is hereby ORDERED that:
1. The return date for Motion Sequence #1 is amended to May 28, 2024.
2. Motion Sequence #1 is granted to the extent that:
a. [Redacted] are hereby relieved as counsel for Defendant;
b. [Redacted] shall send Defendant the following by June 7, 2024, by overnight delivery and e-mail: (l) Part Rules of the Hon. James L. Hyer, J.S.C.; (2) Self-Represented Litigant Information Sheet; and (3) Letter listing the contents of outgoing counsel's file for Defendant, excluding those filed on NYSCEF, with copies annexed.
c. This matter is stayed until June 28, 2024, at 9:00 a.m., at which time a Status Conference shall be held wherein all counsel and parties must be present.
3. The Pre-Trial Conference Order filed as NYSCEF Doc. No. 34 shall be vacated and new dates shall be set at the Status Conference."
On June 28, 2024, an Amended Pre-Trial Conference Order (NYSCEF Doc. No. 47) was entered wherein the directives of the prior Pre-Trial Order remained in effect with the only change being adjourned dates as follows: (1) Pre-Trial Conference to be held on July 16, 2024, at 9:00 a.m.; and (2) Trial to commence on July 23, 2024 and proceed on July 26, 2024.
On July 15, 2024, Plaintiff's counsel filed: (1) Plaintiff's Exhibit List (NYSCEF Doc. No. 53) enumerating forty-five proposed exhibits, with copies of each proposed exhibit (NYSCEF Doc. Nos. 58-102); (2) Plaintiff's Witness List (NYSCEF Doc. No. 54) enumerating three potential witnesses including the parties and Plaintiff's mother [Redacted]; (3) Child Support Worksheet (NYSCEF Doc. No. 56); and (4) Updated Statement of Net Worth of Plaintiff (hereinafter Plaintiff's SNW #2").
On July 16, 2024, a Pre-Trial Conference was held wherein appearances were made by Plaintiff, Plaintiff's counsel, and Defendant as a self-represented litigant, during which the parties entered into a Stipulation of Facts not in dispute (NYSCEF Doc. No. 52). The parties further entered into a stipulation of settlement pertaining to all outstanding issues with the exception of those reserved for trial, the terms of which are set forth in a so ordered Court transcript filed on August 22, 2024 (NYSCEF Doc. No. 129).
Trial commenced in this matter on July 23, 2024; July 26, 2024; July 29, 2024; and was completed on July 30, 2024, after which a Court Order (NYSCEF Doc. No. 113) was entered directing:
"1. Plaintiff's counsel shall order and pay the entire cost of the Court Transcript for the entire trial and submit same to the Court via NYSCEF filing and hard copy in a three-ring notebook with tabs separating each day. Plaintiff's counsel shall e-mail Defendant the invoice within 10 days of receipt and Defendant shall within ten days of receipt of the invoice provide reimbursement of fifty percent of the cost to Plaintiff's counsel.
2. Both parties are permitted to file post-trial submissions limited to twenty pages in length setting forth their positions with respect to each issue to be determined by the Court, which shall be filed with the Court and served upon the opposing party by August 16, 2024. Post-Trial submissions shall not include any attachments.
3. All prior Decisions and Orders entered in this action remain in effect unless specifically modified herein."
On August 14, 2024, Plaintiff's counsel requested an extension of time to file a Post-Trial submission (NYSCEF Doc. No. 116), which was granted for both parties to file by August 23, 2024 (NYSCEF Doc. No. 117). Plaintiff's counsel submitted an additional extension request on August 22, 2024 (NYSCEF Doc. No. 130), which was granted on August 23, 2024 (NYSCEF Doc. No. 131).
Plaintiff's counsel filed a Post-Trial Submission on August 30, 2024 (NYSCEF Doc. No. 133).
Defendant filed a Post-Trial Submission on August 30, 2024 (NYSCEF Doc. No. 132). On September 12, 2024, Plaintiff's counsel filed a submission asserting that Defendant's submission failed to comply with NYCRR § 130-1.1 as it was unsigned and requested that it be disregarded unless it was immediately signed and re-submitted (NYSCEF Doc. No. 134). Later that day, Defendant signed and re-filed his submission (NYSCEF Doc. No. 135), and accordingly, it was reviewed and taken into consideration in the drafting of this Decision.
Trial Transcripts were filed and so ordered (NYSCEF Doc. Nos. 118, 119, 127, 128) .
The references to the Court transcripts from the trial refer to these transcripts.
TRIAL TESTIMONY AND DOCUMENTS IN EVIDENCE
The Court held a trial on July 23, 2024; July 26, 2024; July 29, 2024; and July 30, 2024. Appearances were made by Plaintiff, Plaintiff's counsel and Defendant as a self-represented litigant.
Exhibits:
During the trial, the following exhibits were admitted into evidence:
Plaintiff's Exhibits -
1. Exhibit 1: Plaintiff's 2022 Income Tax Return
2. Exhibit 2: Plaintiff's 2022 W-2s
3. Exhibit 3: Plaintiff's 2023 Income Tax Return
4. Exhibit 4: Plaintiff's 2023 W-2s
5. Exhibit 5: Marital Residence: Residential Contract of Sale
6. Exhibit 6: Marital Residence: Closing Statement and Exhibits
7. Exhibit 7: Marital Residence: Gift Letter
8. Exhibit 8: Wire Confirmation from Plaintiff's Mother's Account
9. Exhibit 9: Plaintiff's [Redacted] Retirement
10. Exhibit 10: Plaintiff's Help USA 401K
11. Exhibit 11: Plaintiff's [Redacted] Retirement
12. Exhibit 12: Bank Statements Showing Transfer From Plaintiff's Retirement Accounts For Down Payment of Marital Residence
13. Exhibit 13: Appraisal for Marital Residence
14. Exhibit 14: Chase Mortgage for Marital Residence
15. Exhibit 15: Selene Mortgage for Marital Residence
16. Exhibit 17: Con Edison
17. Exhibit 18: Consolidated Statements for Plaintiff's Chase Accounts Ending [Redacted] & [Redacted]
18. Exhibit 19: Plaintiff's Chase Savings Account Ending [Redacted]
19. Exhibit 20: Plaintiff's Fidelity [Redacted] Retirement
20. Exhibit 21: Plaintiff's [Redacted]
21. Exhibit 22: Plaintiff's Chase Freedom Ending [Redacted]
22. Exhibit 23: Plaintiff's Citi Credit Card Ending [Redacted]
23. Exhibit 24: Plaintiff's Capital One Credit Card Ending [Redacted]
24. Exhibit 25: Plaintiff's Bank of America Credit Card Ending [Redacted]
25. Exhibit 26: [Redacted] Childcare Invoices
26. Exhibit 27: [Redacted] Camp Invoices
27. Exhibit 28: [Redacted] Camp Invoices
28. Exhibit 29: Unreimbursed Medical Invoices
29. Exhibit 30: Plaintiff's Signed Retainer with Patricia T. Bisesto, Esq.
30. Exhibit 31: Deposition Transcript
31. Exhibit 32: Plaintiff's Zelle Transactions
32. Exhibit 33: Defendant's Statement of Net Worth
33. Exhibit 34: Defendants' 2023 Taxes
34. Exhibit 35: Defendants' IRS Transcripts
35. Exhibit 36: Defendant's Paystubs
36. Exhibit 37: Defendants' Chase Checking Ending [Redacted]
37. Exhibit 38: Information Regarding Defendant's Retirement
38. Exhibit 39: Defendant's American Express Credit Card
39. Exhibit 40: Defendants Chase Credit Card Ending [Redacted]
40. Exhibit 41: Defendant's Chase Credit Card Ending [Redacted]
41. Exhibit 42: Defendant's Chase Credit Card Ending [Redacted]
42. Exhibit 43: Defendant's Chase Credit Card Ending [Redacted]
43. Exhibit 44: Defendant's Chase Credit Card Ending [Redacted]
Exhibit titles for identification purposes only via descriptions provided by each party.
Defendant's Exhibits
1. Exhibit C: Proof of Purchase of Home and Documents Pertaining to Home
2. Exhibit D: Zelle Payments from Defendant to Plaintiff
Opening Statements:
Plaintiff's counsel waived opening statements and Defendant made an opening statement.
Witnesses:
Plaintiff, [Redacted], and Defendant were the sole witnesses to testify at the trial.
a. Summary of Testimony of [Redacted]
She testified that Plaintiff is her daughter and that she has known Defendant for twenty to twenty-two years. She testified that Defendant had a history of acting inappropriately which is why Plaintiff removed herself and the parties' Children from the home she had been residing in with Defendant. She testified that Defendant had a history of alcohol abuse, had been hospitalized in [Redacted] and that her husband visited Defendant during his hospitalization. When asked if she had any proof Defendant had been hospitalized due to alcohol abuse, she responded that she received e-mails from Defendant that he was seeing a counselor to get help for alcoholism, and she had told him that she would accompany him to AA if he needed support. When asked if Defendant was ever arrested due to a problem with alcohol or due to domestic violence, she responded:
"I think it's safe to say that you are very lucky that you were never arrested because if it was up to me, I would have had you arrested. But my husband talked me out of it, and my daughter begged me not to have you arrested because you would have lost your job with [Redacted] for the way you acted and the way that you caused family problems within your home. And I loved you from the bottom of my heart, and I always wanted the best for you and [Redacted] and the Children. And we went out of our way to provide a loving environment for all of you, and you ruined it. You didn't go for rehab, you didn't go for counseling, you didn't do any of the suggestions that we begged you to do, and that's why you're in this position right now. You're getting divorced. I have to step away, and I'm sorry, [Redacted]. I don't know what you want from me or what you're getting at. But I am so sorry that this had to happen to you and your family because of your drinking issues. And I don't know what else you want me to say. You can stop me. I am heartbroken for this, and I am sick to my stomach that alcoholism has ruined your relationship with your Children who love you and your loving marriage that you could have fixed. You chose not to. Don't blame us for this. That's all I have to say. I don't know what else to say except that there's two Children that are without a father because you chose not to go get help for yourself, and we begged you. We would never have you arrested, although many many occasions over the years, we clearly could have and [Redacted] could have. But instead, we told her just calm down, stay at the house, try to work it out for the Children's sake. I don't know what else you want me to say." (Tr. 34:10-25; 35:1-18)
She testified that on January 3, 2021, at 11:00 p.m., she received a frantic call from Plaintiff advising her that Plaintiff was coming to her home with the parties' Children and that when she arrived, she had been crying, and that she was shaken up. She testified that Plaintiff had been residing in [Redacted], but from that day forward continued to reside with her until she moved into her current home on February 2, 2021.
When asked if she gave any gifts to Plaintiff, she confirmed that she gifted Plaintiff a Thomasville sectional-type couch; a Thomasville dining room set including a table, six chairs and a buffet; a bedroom set; a full-size mattress; a television; dishes; silverware; pots; and pans. When cross examined by Defendant, she confirmed that these gifts were made by her to Plaintiff and not to Defendant as reflected in the following line of questioning:
"Q. And do you remember telling [Redacted] and [Redacted] that you wanted to give us that furniture because the old furniture was breaking?
A. It was a really long time ago.
Q. I'm asking if you remember.
A. I know I gave you the gift, [Redacted], of furniture. Any conversations from that far back, I'm sorry, I don't - I can't verbatim remember every conversation we've ever had. We've had many.
Q. Earlier did you mention that you gave the gift specifically to -
A. Of course I gave it to my daughter.
Q. It could have been a gift to the apartment and the inhabitants of the apartment which would be myself and -
MS. BISESTO: Objection.
THE COURT: Overruled.
A. Are you saying did I give you a gift of this gift that was mine? The answer is no. I would never have given you a couch. I gave my daughter a couch.
Q. My question was -
A. And dining room and bedroom furniture for our granddaughter. Not specifically for you. It's because she's my daughter and I wanted her to have it. What does it matter?"(Tr. 49; 14-25; 50; 1-13)
She testified that she became aware Plaintiff was purchasing a home in November of 2020 and Plaintiff advised her that she required additional funds for the purchase of the home due to Defendant failing to provide his half of the downpayment. She testified that she provided Plaintiff a gift of fifteen thousand dollars. When presented with Plaintiff's Exhibit 7, she testified that she recognized the document as a gift letter that she had signed because she was asked to sign a letter that she had provided a gift to Plaintiff. When presented with Plaintiff's Exhibit 8, she testified that this is the savings account of she and her husband, reflecting a wire transfer of fifteen thousand dollars on December 30 which are the funds gifted to Plaintiff.
When cross examined by Defendant, and asked if she had ever made him aware she was going to provide Plaintiff with a fifteen-thousand-dollar gift, she replied, "I'm pretty sure I did at some point. I must have said that I'm giving her the gift because you didn't give your end of the - the other half of the downpayment. So, there was more money needed" (Tr. 40:11-14). When asked by Defendant how she found out that he did not give the money to Plaintiff, she provided the following testimony:
"A. From you.
Q. When was that?
A. You said that it would take 30 days for your documentation to be looked over by [Redacted], the pension bureau, wherever you get your loans from. And you continually said that they were working on it, and then it got close to the closing date, and you did not have the money.
Q. Did you know for a fact that I didn't have the money?
A. Yes.
Q. How - what facts did you have that I did not have the money?
A. The banker said that the full amount of money needed to be put down, and it wasn't there. You didn't give it.
Q. All right.
A. So they had to I think lower the mortgage and make it a 10 percent downpayment which was [Redacted]'s amount that she gave and exclude whatever money you were supposed to give.
Q. Now -
A. And that's what I remember. And then she had to pay the PMI because they didn't have - you didn't have the full 20 percent because you no longer wanted to buy the home. Because of the incident that happened with the drinking and [Redacted] living in my home, you would not cooperate any further. And that's what happened, [Redacted].
Q. When -
A. I don't know what else you want. You didn't want to buy the house and you didn't give - you didn't give the downpayment. Do you have proof of giving a downpayment?" (Tr. 41; 14-25; 42; 1-21)
When asked if she has visited Plaintiff's home she replied in the affirmative and that she has not seen any of Defendant's belongings in the property, but that Defendant has been present in the home on occasion on holidays recalling his last visit being Christmas of 2021. She testified that the parties' Children are doing well in the community wherein Plaintiff's home is located.
b. Summary of Testimony of Plaintiff
She testified that the parties were married on [Redacted], having been together since 2004 when in college; that she commenced this action on July 6, 2023; and that there are two Children of the marriage. She testified that both Children are enrolled in the [Redacted] School District where C.A.M. is entering seventh grade, C.A.S. is entering fourth grade, both Children are doing well academically and both Children are involved in the community.
When asked about the parties' finances during the marriage, she testified that they did not have any joint bank accounts, but that Defendant was listed on one of her accounts when the parties were purchasing the home because she was told Defendant needed to be an authorized user. She testified that the parties would split the payment of household bills and did not file joint tax returns during their marriage. When presented with Plaintiff's Exhibit 1 she testified that the document was her 2022 1040 including her income of $97,000.00. When presented with Plaintiff's Exhibit 2, she testified that there are two W-2s representing her entire income from the year 2022. She testified that in 2022 she was employed by [Redacted] and was also still employed with [Redacted]. She testified that she is now employed as a director with [Redacted] hospital where she earns an annual salary of $130,000.00, which is an increase from her 2023 salary. When presented with Plaintiff's Exhibit 3, she testified that this is her 2023 tax return which reflects her taxable income from 2023 of $89,145.00. When presented with Plaintiff's Exhibit 4, she testified that this is a W-2 from [Redacted] with Medicare wages of $39,000.00, along with a second W-2 from [Redacted] reflecting Medicare wages of $54,885.45.
When asked about Defendant's employment at [Redacted], Plaintiff testified that Defendant was terminated due to his falsifying time as he had another employee clocking in for him and when asked further about how Plaintiff knew this, she responded that Defendant had told her and showed her a termination letter. She testified that Defendant's employment since 2015 has been as an elementary school counselor.
When asked about the furniture in the parties' first apartment, she testified that she purchased all of the furnishings for the apartment with her own money she had earned prior to the parties' marriage. She testified that in 2014 the parties relocated to a second apartment which was furnished by both the contents of the first apartment and additional items gifted to her from her parents including a dining room set, China closet, couch, and ottoman. When questioned by Defendant regarding her removal of the majority of the contents of the parties' then apartment when relocating into the house she testified:
"Q.... Did you take the majority of the belongings that were in the home that day?
A. I took my belongings and my Children's belongings.
Q. Did you take the majority of the belongings that were in the home that day?
A. The majority of the belongings and-in the home were my belongings and the Children's belongings.
Q. Did you have a discussion with [Redacted] as to what belongings were communal and what belongings were for the Children and what belongings were for separate property? Did you have that conversation?
A. Yes. You were there while I was packing the belongings.
Q. And when-all right. Did [Redacted]ever agree for you to take those belongings?
A. Yes."
She described the parties' relationship as chaotic, and that Defendant's alcohol consumption increased over time. When asked if she contacted the police through January of 2021, she responded affirmatively advising that she had done so when her son was approximately two years old due to Defendant arriving home after midnight intoxicated, turning the lights on and screaming. She testified that she had left the then marital home several times due to Defendant's drinking and when Defendant asked if he stopped drinking when she returned, she testified:
"Yes. You had stopped drinking and said that you were going to go for help, and then you stopped drinking as much and said that you weren't going to drink as much, that you weren't going to get that way anymore, and you weren't going to do that and you didn't want to jeopardize your family and you didn't want to lose your family. And you would promise to go get help, and you had a therapist you were speaking with on [Redacted] about your alcoholism. And the guy told you to stop coming there because you weren't changing, and you made promises over and over. And I believed you for the sake of our marriage and our Children, and you would resume drinking again" (Tr. 155:14-25; 156:1).
She then testified that on January 5, 2021, Defendant returned to the parties' then apartment at approximately 9:30 p.m., intoxicated, turned on the lights and followed her from the bedroom to the couch. She testified that she responded by telling him she was leaving with the Children to go to her mother's home, after which he took her purse which contained her car keys, causing her to call her mother from the building security office and the neighbor to call the police due to the parties yelling. She testified that after she located her keys the Defendant blocked the door to the bedroom of C.A.S., pushed her in front of C.A.S., after which she fled with the Children. When asked by Defendant if she had expectations of reconciling with him after she left the apartment, she responded that she did not.
When Defendant asked her if she had any proof that the Children witnessed this altercation, she responded:
"The school psychologist called you and the school counselor had contacted you because you were talking about me and talking about incidents that pertained to your and I's relationship to the Children, specifically C.A.S., and she sought out the guidance from [Redacted], the school psychiatrist. And the school psychiatrist called you and told you that this was inappropriate and asked you to stop talking with her about things that she could not handle emotionally" (Tr. 142:8-16).
She testified that during this altercation, the parties had been in the process of purchasing a home and when presented with Plaintiff's Exhibit 5 she identified the document as the contract of sale for that purchase wherein both parties were listed as purchasers which they both signed in December of 2020. She testified that the purchase price for the home was $565,000.00, with a downpayment of $113,000.00 with each party providing $56,500.00, and a mortgage of $452,000.00. She testified that her half of the downpayment came from her 401(k) plan which included funds obtained prior to the parties' marriage, referencing Plaintiff's Exhibit 12. She then testified that Defendant failed to obtain his half of the downpayment from his retirement plan, requiring a mortgage of an additional ten percent and private mortgage insurance payments. She further testified that the closing costs were paid for by her mother and when presented with Plaintiff's Exhibit 7, she identified the document as a gift letter representing her mother's gift to her for the closing costs. When asked about the closing of the home she testified that it occurred on February 1, 2021, and that Defendant did not attend or contribute any funds for the closing costs.
When asked by Defendant what her intention was when purchasing the home, Plaintiff responded:
"I never said that you never had an intention. The intention was for us to buy the home together. That's why both of our names are on it, and the intention was that we were going to live there together with our family. On January 5th, once you came home and were intoxicated again, I knew that that chaos was going to boil over to the house, and I left you. So you had an intention to live in the house. You had an intention to buy the house. That was the purpose. However, you came home intoxicated, as you have many other nights, and the same thing was going to boil over to that house. And the agreement was in the beginning I was not buying a home with you. I was buying a home by myself, and you said that you wanted to be part of that process and that you were going to change and that you were going to get help and that we were going to have a fresh start at [Redacted]. And on January 5th that proved to be wrong, and I left" (Tr. 150:10-25, 151:13).
She testified that since the closing Defendant has never resided in the home, but only visited on occasion and that all of the utilities are in her name. She testified that she never provided Defendant a key to the home and when she declined to do so upon his request, he was upset. When Defendant asked her if he regularly visited the home from 2021 to 2022, she responded:
"You came on Wednesdays to have dinner with the Children because you did not have a license and you could not pick up the Children. So you would take the Metro-North because you didn't have means to come and retrieve them. And I would let you have dinner with the Children, and then you would go home to your own home. And you did not come once or twice a week. You came on Wednesdays, and towards the end you didn't come at all (Tr. 159:17-24).
* * *
Then you proceeded to show up to my home several times drunk and belligerent. And my sister lived in [Redacted], and my sister let you stay in the apartment on the weekends to visit the Children. You think I wanted to have dinner with you? You think I wanted to spend holidays with you? I did that for the sake of our Children, and that is the only reason you came to the home was to have dinner with them and spend holidays with them because that's what I wanted to do for them because they were upset and I kept you active in their lives. That's what I did" (Tr. 160:25, 161:1-11).
Plaintiff then testified as to the last time Defendant visited the home:
"Yes. You were visiting the Children and you showed up drunk and I asked you to leave the home. And my sister was there, and my sister asked you to leave and to cut it out, that the kids were getting upset and they were crying and they were there. And you refused to leave the home and I asked you to leave the home, and what I said was not that I was going to go live somewhere else. I would not go live somewhere else because that's where I lived. That was my home, and you lived at [Redacted]. And I asked you to leave because you were being belligerent and upsetting the Children. And you refused to, and my sister spoke to you and my sister drove you home that night, that afternoon actually. And then after that, you never returned back to the home to visit with the Children. My sister gave you her apartment on the weekends to visit with the Children when you lived in [Redacted] so you had somewhere to live to visit with the Children. There was never any talk ever about you living in the home ever, and I would not go anywhere because that was my home" (Tr. 185:17-25, 186:1-11).
When asked about what she would like the Court to do regarding the marital domicile, she testified:
"... We live-we have two dogs, Lola and Snow. We wake up. There's no fighting. There's no--it's just peace. And that's their home. They both have a bedroom. C.A.S. has her own bedroom with all Taylor Swift stuff. C.A.M. has his bedroom with all wrestling stuff. And we-you know, the dogs sleep mostly with C.A.S. And we have a happy home really. * * * And that's what I want The Court to recognize, that taking that-why this-why he wants to take that away or why he wants a piece of this, I don't understand. If he gave something for this house, I'd give it back to him. If he even mowed the lawn-I paid a landscaper $45. I know how much it is to landscape the house. $45 a week I'd give it to him. I asked this man for nothing, and I've never taken a dime from him ever throughout the years of our relationship, but especially while I have this home through sleepless nights, through sick kids, through homework, projects, maintaining a career. I maintain that home, and it's beautiful. And I keep it beautiful and I keep it spotless, and I love my house and my kids love their house. And that's all I want, is just to be left in peace. Just-that's it" (Tr. 113:6-13, 15-25; 114:1-5).
She testified that for approximately two years Defendant provided her with $1,700.00 towards child support, but no additional funds towards the household expenses. She continued that the amount increased in 2023 to $2,350.00 per month, noting that these amounts were calculated by both parties utilizing the child support calculator for basic child support and add-on expenses including childcare. She then testified that Defendant failed to pay child support consistently since November of 2023. When asked by Defendant if she ever commenced a child support proceeding against him, she responded that she had and testified:
"You didn't - you received the child support notice in the mail, and you did not pick up [the Children] from camp that day because you were angry that I started a child support hearing. And then when we had the date, you did not show up. Because you did not show up, the judge postponed it to another day, and then you didn't show up to that one. And then you came around and said, 'Okay. I'm not going to do that anymore. I won't threaten not to pick up C.A.S. and I'll give you the money for the Children'" (Tr. 171:10-19).
She testified that the Children attended camp and daycare, and that Defendant failed to contribute funds for their attendance. When presented with Plaintiff's Exhibit 26 she testified that this pertained to the Children's attendance at [Redacted]. When presented with Plaintiff's Exhibit 27, she identified the document as a receipt from the [Redacted] for 2023. When presented with Plaintiff's Exhibit 28, she identified these documents as [Redacted] Invoices for the Children's camp. She testified that she asked that Defendant be responsible for half of these expenses.
When asked about the health insurance, she testified that since 2015 the parties and their Children have been covered through the Defendant's employment with no premiums due, but co-payments and costs for prescriptions are required. When presented with Plaintiff's Exhibit 29 she identified the document as the co-payments for C.A.S., for which Defendant has made no contribution.
She testified that she retained her legal counsel in July of 2023 with an initial retainer of $6,000.00 and that she currently owes an additional amount of approximately $10,000.00. When asked by Defendant why she did not file for a divorce earlier she responded that she did not have funds to retain an attorney. When Defendant asked if she was up to date with her payments to her attorney, she responded that she was not and that she was advised that she could set up a payment plan.
When presented with Plaintiff's Exhibit 22 she testified that this pertains to her Chase Freedom credit card which she has had during the parties' marriage for which she charged living expenses during the parties' marriage which had a balance as of the date of commencement of $2,659.39. When presented with Plaintiff's Exhibit 23 pertaining to Plaintiff's Citi credit card she testified that the balance as of the date of commencement was $7,097.92, originating prior to the commencement of the action. When presented with Plaintiff's Exhibit 24 pertaining to Plaintiff's Capital One credit card she testified that the balance as of July 19, 2023 was $7,018.83. When presented with Plaintiff's Exhibit 25 pertaining to Plaintiff's Bank of America credit card she testified that in July of 2023 the balance was $12,486.95, representing all of the consolidated credit card debt she had at the time of commencement of this action as she consolidated her credit card debt into this one account with the exception of the Chase Freedom account.
When she left the parties former apartment, she testified that her name was on the lease for the apartment, and it was removed. When presented with Plaintiff's Exhibit 16 she testified that this document was an e-mail chain of e-mail communications between her and [Redacted] pertaining to her moving personal property out of the unit. She testified that these e-mails further confirm her surrender of the keys to the unit.
When presented with Plaintiff's Exhibit 21, she testified that this document pertains to her 401(k)-account related to employment she obtained after the commencement of this action and asserted that it is not a marital asset.
c. Summary of Testimony of Defendant
Plaintiff's counsel and Defendant entered into a stipulation whereby Defendant was permitted to make a statement and Plaintiff's counsel would be permitted to engage in cross examination.
Defendant testified that the parties were married in November of 2015, having been in a relationship since 2004. Defendant testified that Plaintiff had left the then marital residence of the parties several times during their marriage and that the parties had the intention of both moving into the current residence of Plaintiff:
"And [Redacted] prior to moving out-prior to [Redacted] leaving from the [Redacted] property always had the intention of moving with [Redacted] even after the fact that she left. I believe that just there was a pattern of behavior which she exhibited several times that she would take-she would get upset for whatever reason it is that she would be upset about, and without-and at her own whim would leave with the kids and leave the apartment and go to her parents' house until she felt it was okay to come back. And I believe that's what she was doing when she moved to-moved to the [Redacted] property. She was exhibiting the same behavior. And when she would leave and take the Children and then-until I changed into whatever it was that she wanted me-whatever demands she had of me. I would have to change in order to-in order to eventually be allowed there" (Tr. 193:17-25, 194:1-8).
With respect to the relief requested, Defendant indicated that he sought to receive fifty percent of the marital property asserting that the parties had agreed to do this. While Defendant denied that there was a verbal agreement between the parties to each contribute $56,500.00 towards the downpayment on the house, he did confirm the parties agreed that each would give monies towards the home, and he provided no such funds, nor did he attend the closing.
With respect to the home, Defendant asserted that it should be sold to facilitate his receipt of half of the net equity in the property. Defendant testified that he signed documents pertaining to the home just a few weeks before Plaintiff left the parties' prior apartment and that while he never resided in the property, he had ties to the home. Defendant testified that he slept over the house a dozen times and when visiting cooked dinner in the home and cleaned the home. He testified that he stopped visiting the home after commencement of this litigation. He testified that he had always intended on moving into the home following a reconciliation with Plaintiff and was surprised when he was not permitted to visit the home anymore. On this subject Defendant provided the following testimony:
"I have had matters where I was in the home and we were-and for whatever reason, out of jealousy or whatever conversation, she's kicked me out of the home. I said, "How about if I don't want to leave? It's my home too." "If you don't leave, I'm going to grab the kids and take them to my parent's house." I am an elementary school counselor. I am very familiar with a lot of these issues that happen with the parents and how it affects them. I am a victim of those type of incidences where-very similar situations when I was a child. It's part of the reason-not part. It's 90 percent of the reason I became a counselor, domestic violence and having to leave the home when I was a child at my son's age. That was the majority of reason I because a counselor" (Tr. 197:21-25; 198:1-11).
With respect to the $15,000.00 in funds provided from Plaintiff's mother, he testified that this was a gift to both of the parties and noted:
"Had I known that document existed, the gift letter, I wouldn't have accepted it because I would have said-would have felt offended that all of the sudden when [Redacted] and I were together 17 years at this point and she's never gifted one person one thing that she would say, "This is for my daughter." And I would have said, "What does that mean?" And she would have said, "Just in case." I wouldn't have accepted it as a gift. I wouldn't have wanted that" (Tr. 211:18-25; 212:1).
Defendant admitted that he has struggled with alcohol abuse since he was a teenager, his drinking has caused him to have memory problems, continues to drink alcohol, but asserted that there was no domestic violence with the parties' marriage providing the following testimony (partially pertaining regarding his deposition):
"We went hours talking about domestic violence. There was never domestic violence. She admitted the relationship wasn't violent. There was never any evidence of domestic violence other than her staying her parents or uncle other family addressed. I have never been -I've never had an issue with the Administration of Child Services because of alcohol or any type of dangerous situation, never been arrested, never hospitalized. They use the word "alcoholic." Always admitted I was an alcoholic since I was a teenager. But just as a definition, as a counselor in my practice, you take more than five drinks a week, you're an alcoholic. I've had issues-not that behaviorally I changed, but I do consume-I have consumed alcohol. They have not told me what I've done. I've heard the word "drunk," but they never really said what it was that I was doing. They just said, "You were drunk," and somehow they stated I was drunk so I didn't want to move to the apartment. I didn't understand where the drunk-where the alcohol was affecting my ability to move into the home (Tr. 198:19-25; 199:1-14).
* * *
And no one could ever testify in this life that I put my hands on [Redacted]. I don't understand how she did, but either way, I think that's abhorrent that she would even mention that knowing all of the things-excuse me (Tr. 201:6-10).
* * *
Alcohol has always been a part of my life, and they accepted me and loved me for the majority of the 20 years knowing that I drank. I am responsible. In my opinion, I'm responsible. I've held my job. I've been consistent. I haven't not worked. I've been in this field since 2006 (Tr. 21:22-25; 241:1-2).
* * *
I don't see any reason for me-nothing has happened, at least for me, to feel that I need an intense program for alcohol. But I am addressing the issue with my counselor who is a licensed worker in substance abuse. I've been seeing her every other week (Tr. 255:25; 256:1-4).
* * *
So, yes, I did drink and consider myself an alcoholic, throughout the week in which I did, yes. But not an alcoholic where there was anything I was doing wrong to anyone else except for my body" (Tr. 257:3-6).
When asked if it was true that his access with his Children was suspended following having blown into a Soberlink device indicating he was intoxicated at 11:00 a.m. on a Saturday morning, Defendant confirmed that this was correct but reasoned that it was acceptable as he would not be driving a vehicle and during the access would have no direct contact with the Children as he would be viewing a basketball game in the stands.
Defendant requested that the Court direct that he pay child support in the amount of $64.00 per week. He advised that he has not received a regular check from his employer since November of 2023 and receives $256.00 weekly for assisting his father as a home health assistant while attempting to resume his prior position to earn his regular income. Defendant testified that he has been on medical leave from November of 2023 through June 30, 2024, and planned on resuming his position. He testified that he provided his employer with mental health information and medical information pertaining to a hemangioma on his liver. With respect to his medical leave, Defendant provided the following testimony asserting that he had provided proof to Plaintiff of his conditions including during his deposition:
"So I provided all the medical documentation from my doctors and my own testimony and deposition about my situation that was going on financially, that I would not be able to continue to pay [Redacted] $2,100 for the moment until my income I'm hoping changes soon. Going back to the medical issue, I provided all the documentation. I told them several times it's a liver issue. It was serious enough for a medical doctor to put me on leave from the [Redacted]. Now, my primary doctor, I told them this, that I was independently assessed by a [Redacted] doctor who agreed that I should be on leave until the end of the school year which was June of-June 30 of 2024" (Tr. 206:23-25; 207:1- 6).
* * *
And even when I provided the evidence that I had to go-that I was going to-which I did go to a cancer surgeon last week. I am more than likely going to have 40 percent of my liver taken out. That had nothing to do with alcohol use. I was born with it and-because I had pain in my stomach in 2025 and they saw it in an MRI and it's been growing, it's been incredulous" (Tr. 207:14-21).
Upon cross examination, Defendant confirmed that he has not been diagnosed with Cancer and that his current condition does not affect his physical abilities or prevent him from working on a day-to-day basis. He further testified that he is not required to take any medications for the condition and other than an MRI has not had any procedures performed. When asked if there were any other issues that caused his medical leave, he replied:
"I presented I was-there were-well, there was the physical issue of that. I was going through a divorce at the time. I also was-I also had some issues. There were a lot of things at work. There was a lot of stress and a lot of physical potential of inability to perform my job physically" (Tr. 264:17-22).
When questioned about the medical insurance of the parties' Children, Defendant testified that the health insurance through his employment for the parties and Children had been terminated as of June 27, 2024, as he was not actively working for his employer. When questioned if he had contacted his employer about his health insurance, he responded that he had not. When questioned if he has spoken to anyone at his employer regarding possible reinstatement, he responded that he had communicated solely through e-mail.
When questioned about his current rent he testified that he pays $2,195.00 per month and while he denied having roommates, he confirmed that he has friends who stay with him from time to time including one who he confirmed lived with him for a period of three years being [Redacted] and [Redacted]. When questioned if he receives rent from these individuals, Defendant provided the following testimony:
"Q. Okay. In regard to your roommates, they paid you rent, correct?
A. They-I wouldn't refer to it as rent. They sometimes gave me money. They gave me money, but I hadn't applied it to rent in months"(Tr. 231:7-11).
When further questioned about funds deposited by these individuals into his bank account, Defendant provided the following testimony:
"Q. Let me ask you this question: You've just seen three consecutive monthly payments of $1,000 and you are sitting here telling this Court under oath that that was not rent?
A. I don't believe I used that money for rent. Yes.
Q. No, no, no. That's not what I asked you, what you used it for.
A. I cannot recall exactly what that was for. He paid monies, a lot of different amounts in a lot of different months, a lot of different times. In the last three years I testified that he lived in the house, there are not three years worth of payments made to the home"(Tr. 235:1-18).
He testified that his financial situation is perilous as he is $15,000.00 in rental arrears, has received shut-off notices for his electric services, has almost $20,000.00 in credit card debt and "... I still paid [Redacted] $2,100 just to avoid an issue with child support and potentially going to jail for not paying support" (Tr. 210:2-5). However, when cross examined, Defendant testified that since the commencement of this action he has engaged in foreign travel, engaged in on-line gambling and in November of 2023 purchased a pair of sneakers for $460.00 estimating that he currently has as many as sixty pairs of sneakers.
With respect to the furniture removed by Plaintiff from the parties' former apartment, Defendant testified that he has asked for $1,000.00 for his share of the furniture, but that this offer was refused by Plaintiff, so he would like to be reimbursed by Plaintiff.
With respect to attorneys' fees, he testified that he paid $12,000.00 in attorneys' fees which were unnecessary, and he would like Plaintiff to reimburse him for those fees.
With respect to the rental payments, he asserts he made payments towards the apartment the parties once occupied, and that he would like Plaintiff to reimburse him for half of these payments for the period after which she moved out.
With respect to Plaintiff's 401(k) account, he testified that he sought an award from the marital portion of the account.
FINDINGS OF FACT & CONCLUSIONS OF LAW
a. Witness Credibility
The Second Department Appellate Division has held that the determination of witness credibility is to be determined by the trier of fact:
"The credibility of the witnesses, the reconciliation of conflicting statements, a determination of which should be accepted and which rejected, the truthfulness and accuracy of the testimony, whether contradictory or not, were issues for the trier of the facts. The memory, motive, mental capacity, accuracy of observation and statement, truthfulness, and other tests of the reliability of witnesses can be passed upon with greater safety by a trial judge who sees and hears the witnesses than by appellate judges who simply read the printed record" (Barnet v. Cannizzaro, 3 A.D.2d 745 [2d Dept 1957] [internal citations omitted]).
It has been recognized that in the context of matrimonial proceedings, "Since the court had the opportunity to view the demeanor of the witnesses at the hearing, it was in the best position to gauge their credibility, and its resolution of credibility issues is entitled to great deference on appeal" (Lieberman v. Lieberman, 21 A.D.3d 1004 [2d Dept 2005] [internal citations omitted]).
Based upon the demeanor and substance of the testimony of Defendant, the Court finds that Defendant is not a credible witness and while not entirely discrediting Defendant's testimony, has provided it with little weight. The Court made this determination based upon an assessment of the Defendant's character, temperament, and sincerity. In particular the Court found it troubling that Defendant's SNW, which Defendant swore to the truth of the contents, listed no income from real estate despite his testimony at trial indicating that he regularly received funds from two individuals who occupied his apartment. Defendant's testimony was dubious at best as he refused to acknowledge these individuals as roommates and asserted that they were friends who stayed with him from time to time, while confirming that one of these individuals had remained residing in his apartment for a period of three years. Defendant's testimony continued to be evasive when questioned about the funds received from these individuals reflected in his bank account statements, in that he responded that he was unaware of what these funds were for and claiming that they could not be classified as rent as he did not apply the funds towards his own rental payments. Clearly, Defendant's SNW and testimony are not credible, as both represent willful attempts by Defendant to hide additional sources of income to further his efforts for a reduced child support obligation to be awarded from him to Plaintiff by this Court.
Based upon the demeanor and substance of the testimony of Plaintiff and [Redacted], the Court finds both to be credible witnesses. The Court made this determination based upon an assessment of the character, temperament, and sincerity of Plaintiff and [Redacted].
b. Equitable Distribution of Marital Assets, Declaration of Separate Property, Dissipation of Marital Assets and Allocation of Debts
The Appellate Division, Second Department has noted the manner in which a trial court is to make a determination as to equitable distribution in the context of a matrimonial action:
"The Equitable Distribution Law mandates that, whenever a marriage is terminated, absent an agreement of the parties, the court must determine the rights of the parties in their separate and marital property and provide for the disposition of the property in the final judgment (Domestic Relations Law § 236[B][5][a]). In determining the equitable distribution of marital property, the court is required to consider 14 specific factors and may take into account any other factor the court finds just and proper (Domestic Relations Law § 236[B][5][d]). The court is obligated to render a decision in which it sets forth the factors it considered and the reasons for its decision, a requirement that cannot be waived (Domestic Relations Law § 236[B][5][g]). In the absence of express findings of fact and of a detailed discussion of the enumerated factors, meaningful appellate review is precluded and a remittal for further fact finding may be required (Gape v. Gape, 110 A.D.2d 621; Kluge v. Kluge, 159 A.D.2d 968). Facts must be sufficiently developed at trial to enable a reasoned determination of the issues of equitable distribution and, if not, a new trial may be ordered (Madu v. Madu, 135 A.D.3d 836, 837; McLoughlin v. McLoughlin, 74 A.D.3d 911, 915)."(Kaufman v. Kaufman, 189 A.D.3d 31, 52 [2d Dept 2020]).
DRL § 236[B][5] notes, in part, that:
"b. Separate property shall remain such.
c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.
d. In determining an equitable disposition of property under paragraph c, the court shall consider:
(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.
e. In any action in which the court shall determine that an equitable distribution is appropriate but would be impractical or burdensome or where the distribution of an interest in a business, corporation or profession would be contrary to law, the court in lieu of such equitable distribution shall make a distributive award in order to achieve equity between the parties. The court in its discretion, also may make a distributive award to supplement, facilitate or effectuate a distribution of marital property.
f. In addition to the disposition of property as set forth above, the court may make such order regarding the use and occupancy of the marital home and its household effects as provided in section two hundred thirty-four of this chapter, without regard to the form of ownership of such property.
g. In any decision made pursuant to this subdivision, the court shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel."
The Court is not required to engage in a "point-by-point catechistic discussion" of each factor under DRL § 236B(5)(d) (Sykes v. Sykes, 43 Misc.3d 1220 (A) [Sup Ct, NY County 2014]). "There is no requirement that the distribution of each item of marital property be made on an equal basis (DeSouza-Brown v. Brown, 71 A.D.3d at 946; Peritore v. Peritore, 66 A.D.3d 750, 752-753; Griggs v. Griggs, 44 A.D.3d 710, 713)" (Baumgardner v. Baumgardner, 98 A.D.3d 929, 931 [2d Dept 2012]).
If the court determines that one spouse engaged in domestic violence against the other that has impacted the spouse emotionally, financially, and reputationally, the court can provide the spouse who engaged in the domestic violence a decreased distributive award of the martial assets (J.N. v T.N., 77 Misc.3d 894 at 931 [Sup Ct, NY County 2022]["Husband's verbal and emotional abuse of wife throughout the marriage constituted harassment - his threats to take custody of the children and degrading comments alarmed her, were made without provocation, and served no legitimate purpose. The prior jurist, upon a complete trial record, expressly found that husband engaged in 'domestic violence of an emotional nature' against wife, and this court finds the same. Wife was subject to consistent, persistent verbal and emotional abuse. Husband called her names and degraded her in all aspects of her life. He told her to her face and in front of her family that she was diseased and an unfit parent who could not be around her children. He called her 'bitch' and 'cunt' at will and then callously blamed her for his despicable speech. As to her professional skills, he called her 'different flavors of you're an idiot. You're stupid. You don't know what you're doing.' This conduct continues unabated, albeit in a different form, caused emotional injury to wife and has the potential for destroying her ability to make a living."]).
"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 distribution of each item of marital property be made on an equal basis" (Chalif v. Chalif, 298 A.D.2d 348, 349 [2d Dept 2002]; Repetti v. Repetti, 147 A.D.3d 1094, 1098 [2d Dept 2017]). "Courts have discretion to value 'active assets' such as a professional practice on the commencement date [of the action], while 'passive assets' such as securities, which could change in value suddenly based on market fluctuations, may be valued at the date of trial but such formulation should be treated as helpful guideposts and not immutable rules" (Lieberman-Massoni v. Massoni, 215 A.D.3d 656 [2d Dept 2023]; Daniel v. Friedman, 22 A.D.3d 707, 708 [2d Dept 2005]; Grunfeld v. Grunfeld, 94 N.Y.2d 696, 707 [2000]).
Furthermore, when there are inconsistencies or outright misrepresentations among financial records, sworn affidavits, and testimony, and a party is recalcitrant in providing financial document disclosure, the Court may find that the party lacks credibility and draw a negative inference related to the discrepancies in financial representations (Racquel L.J. v. Derwin J.J., 64 Misc.3d 1221 [Sup Ct, Kings County 2019]).
In a divorce action, the party seeking to overcome the statutory presumption that all property acquired by either spouse during the marriage is marital property has the burden of proving that the property in dispute is separate property (Nerayoff v. Rokhsar, 168 A.D.3d 1071 [2d Dept 2019]). Property acquired by a spouse by gift from a party other than the spouse is separate property (Vogel v. Vogel, 156 A.D.2d 671 [2d Dept 1989]). A party is generally entitled to a credit for any contribution of separate property toward the purchase or a marital asset, and in the context of an alleged gift utilized towards the downpayment on a parcel of real property, the spouse seeking a separate property credit must provide evidence establishing that such contribution to the downpayment is a gift to that spouse alone (Robinson v. Robinson, 133 A.D.3d 1185 [3d Dept 2015]).
It is further appropriate for the Court to allocate responsibility for the payment of debts between the parties involved in a matrimonial action (Goddard v. Goddard, 256 A.D.2d 545 [2d Dept 1998]; see also, Dellafiora v. Dellafiora, 54 A.D.3d 715 [2d Dept 2008]).
In making a determination as to the equitable distribution of the parties' marital assets, the Court has reviewed the following factors:
(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action; Income at the time of marriage:
Based upon the testimony and evidence presented to this Court at the time of trial, it is unclear what the income of each party was at the time of the marriage.
Property at the time of marriage:
Based upon the testimony and evidence presented to this Court at the time of trial, it is unclear what property either party had at the time of the parties' marriage, with the exception of wife's testimony as to separate tangible personal property and her separate retirement account.
Income at the time of commencement of the action:
At the time of commencement of this action, Plaintiff's SNW indicates her gross total income at $97,077.00 and Defendant's SNW indicates his gross total income as $104,533.00. As noted herein, Defendant's testimony confirms his receipt of additional rental income, causing his annual income to be increased by $19,200.00, for a total income of $123,733.00.
(2) the duration of the marriage and the age and health of both parties;
The parties were married on [Redacted]. Plaintiff's date of birth is [Redacted]. Defendant's date of birth is [Redacted]. Plaintiff's SNW reports the health of both parties as good, while Defendant's SNW reports the health of Defendant as "currently being evaluated" and Plaintiff as "unknown." The Court was not provided with any testimony or evidence to suggest that Plaintiff is not in good health. At trial Defendant presented the Court with limited testimony and evidence to support his assertion that he is not in good mental and physical health, which the Court finds to lack credibility and thereby determines Defendant to be in good mental and physical health.
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
The parties both testified that they have been separated for a lengthy period of time with both maintaining a separate residence of their own, and have entered into a stipulation pertaining to custody of the minor Children wherein Plaintiff shall be the custodial parent of the parties' Children resulting in Plaintiff's need to occupy the former marital domicile and utilize its contents if possible.
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
Not applicable as no testimony or evidence was presented to the Court pertaining to the loss of inheritance and pension rights by either spouse upon dissolution of the marriage as of the date of dissolution.
(5) the loss of health insurance benefits upon dissolution of the marriage;
The Court has been presented with Plaintiff's Complaint which indicates in paragraph ten that the Children's health insurance is [Redacted]: ID No. for C.A.M. ending [Redacted] and ID No. for C.A.S. ending [Redacted] through Defendant's employment, which also provided insurance for the parties and this insurance was terminated during the litigation by Defendant's employer. The Court finds Defendant's claims that he was unaware that the health insurance would be terminated or unaware that it was terminated to be unavailing, and the Court is further troubled by Defendant's testimony at trial that he had not spoken to anyone or taken any significant action following becoming aware of the termination of the health insurance to attempt to have it reinstated or obtain COBRA information.
(6) any award of maintenance under subdivision six of this part;
The parties entered into an agreement prior to trial wherein both waived spousal support and maintenance from the other.
(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;
Following the parties having entered into a stipulation prior to trial, the only remaining assets to be addressed by the Court at trial were the marital domicile and contents thereof. The Court has taken into consideration that the marital domicile is held in title jointly by the parties and that there is no title pertaining to the household contents having been presented to this Court. The Court has considered each of the parties direct and indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse, having determined that during a significant portion of the marriage Plaintiff has been the primary caregiver of the parties' Children thereby providing Defendant with enhanced earning capacity.
(8) the liquid or non-liquid character of all marital property;
The Court has considered the lack of liquid assets of both parties in this matter, including the projected net equity in the parties' marital domicile.
(9) the probable future financial circumstances of each party;
Based upon the testimony and evidence presented to the Court, the Court finds that the parties are equally situated with respect to the probable financial circumstances of each party. Both parties have historically earned the same amount annually and may continue to do so in the future.
(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;
Not applicable as the parties have no interest in any business, corporation or profession.
(11) the tax consequences to each party;
Not applicable as the Court received no testimony or evidence at trial to determine that either party will be impacted by tax consequences arising out of an equitable distribution award to be entered by this Court.
(12) the wasteful dissipation of assets by either spouse;
Not applicable as neither party has asserted a claim of wasteful dissipation of marital assets by the other.
(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
Not applicable as neither party has asserted a claim that the other engaged in 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;
The Court finds that Plaintiff provided credible testimony that Defendant engaged in domestic violence against Plaintiff throughout the course of the parties' marriage including acting in an abusive manner highly disruptive to the parties' then marital domicile due to his addiction to alcohol. During the trial Defendant acknowledged that he is an alcoholic and did not deny the allegations made against him with respect to his behavior towards Defendant. Defendant's actions proximately resulted in Plaintiff having to flee the apartment with the Children, then occupied by the parties and their Children, to the home of her parents where she remained until moving into the Marital Domicile following its purchase. Attempting to facilitate Defendant and the Children spending time with each other, Plaintiff permitted Defendant to visit the Marital Domicile and was forced to prevent him from returning after the Defendant exhibited the same abusive behavior at the Marital Domicile as he did at the prior apartment. The Court notes that while Plaintiff testified credibly that Defendant pushed her during their last altercation at the parties' prior apartment, neither party asserted that the domestic violence that existed between the parties was manifested in a physical manner. However, the Court finds that Plaintiff engaged in domestic violence in a manner which was manifested in his emotional and financial abuse of Plaintiff and the Children. Plaintiff credibly testified that Defendant would return home late at night intoxicated with the Children present acting in a belligerent manner. While Defendant may not have intended this conduct to be abusive, his actions resulted in Plaintiff and the Children being forced to reside in an unsafe environment where their stability and emotional well-being was jeopardized compelling Plaintiff to protect the Children by extracting them from that dangerous situation. Moreover, Defendant's conduct constituted financial abuse. Plaintiff credibly testified that the parties had verbally agreed to utilize their retirement accounts to each obtain half of the downpayment for the purchase of the Marital Domicile and for the closing costs associated with the transaction. Despite that agreement and the parties having executed a contract, following the altercation at the parties' then apartment, Defendant failed to provide his half of the downpayment. Defendant's conduct jeopardized the life savings of Plaintiff placing her in a financially precarious position of being forced to increase her mortgage amount and obtain a gift from her mother to pay the closing costs, or in the alternative, lose her downpayment due to her inability to proceed with the transaction.
(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
Not applicable as the Court was not provided any evidence or testimony at trial pertaining to the existence of any companion animal of either party.
(16) any other factor which the court shall expressly find to be just and proper.
Not applicable.
Based upon the submissions made to this Court, along with the testimony and evidence received at trial, the Court makes the following determinations:
1. Marital Domicile - The parties are the owners of real property being a single family home known as [Redacted], (hereinafter referred to as the "Marital Domicile"), which is held by both parties in title; which the parties stipulate has a fair market value as of the date of trial of $640,000.00; which is encumbered by a mortgage for which the parties stipulated the payoff amount as of June 30, 2023 (date of commencement) to be $483,621.68, and $474,007.94 (as of June 7, 2024); resulting in an agreed paydown of the mortgage principal during the pendency of this action as $9,613.74; and leaving a net equity in the property of $165,992.06 (as of June 7, 2024). Plaintiff asserts that she is entitled to credits being the following:
a. Mortgage Paydown During Action - The parties have stipulated to the payoff amount of the mortgage encumbering the Marital Domicile as of the date of commencement and as of June 7, 2024, permitting the Court to calculate the reduction of the principal mortgage during the pendency of this action being $9,613.74 (hereinafter referred to as the "Mortgage Paydown"). The testimony and evidence presented at trial permit the Court to determine that Plaintiff was the sole party to cause the Mortgage Paydown from her own separate non-marital funds. Accordingly, as Plaintiff would have been required to provide payment of half of the Mortgage Paydown, it is hereby determined that Plaintiff is entitled to a credit of $4,806.87 which shall be awarded from Defendant's distributive share of the net equity in the Marital Domicile as set forth herein (hereinafter referred to as the "Credit #1").
b. Plaintiff's Separate Property Downpayment - The Court was also presented with compelling testimony of Plaintiff that the parties had each entered into a verbal agreement wherein each would use separate non-marital funds from the retirement accounts of each to provide half of the downpayment for the purchase of the Marital Domicile with each contributing $56,500.00 and that while Defendant failed to comply with this Agreement, Plaintiff complied. However, these funds were utilized to purchase a marital asset and the Court has not been presented with any executed marital agreement between the parties indicating the parties' understanding that the wife's contribution would remain her separate property, wherein she would receive a credit in that amount following the sale of the property. Accordingly, it is hereby determined that Plaintiff is ot entitled to a credit of $56,500.00 (Ahearn v. Ahearn, 137 A.D.3d 719 [2d Dept 2016]).
c. Gift From Plaintiff's Mother For Downpayment - During the trial the Court was presented with evidence and testimony that provided compelling support that the $15,000.00 provided by Plaintiff's mother which was used towards the payment of the purchase of the Marital Domicile was a gift solely to Plaintiff and not to the parties together. As these funds were a separate non martial asset of Plaintiff which were then utilized to purchase a marital asset placed in both parties names, the Court again turns to the legal analysis set forth in Ahearn to determine that in the absence of a marital agreement between the parties indicating the parties' understanding that the wife's contribution would remain her separate property, wherein she would receive a credit in that amount following the sale of the property, she is not entitled to a credit for this amount.
The Court further determines that due to domestic violence having been perpetrated by Defendant against Plaintiff during the course of the parties' marriage, as well as the other factors set forth above indicating Defendant had virtually no involvement in this property whatsoever, that Plaintiff is entitled to a higher equity in the Marital Domicile. Based upon the foregoing, the Court determines that Plaintiff is awarded 80% of the net equity in the Marital Domicile and Defendant is awarded 20% of the net equity in the Marital Domicile subject to credits as set forth below, resulting in Plaintiff being awarded 100% of the net equity in the Marital Domicile.
Plaintiff Distributive Share Calculation:
$132,793.64 (80% net equity in Marital Domicile)
+ $4,806.87 (Credit #1)
$137,600.51
Defendant's Distributive Share Calculation:
$33,198.41 (20% net equity in Marital Domicile)
$4,806.87 (Credit #1)
$28,391.54
Plaintiff shall have until December 31, 2024, to pay Defendant $20,003.91 ($28,391.54 minus any funds due from Defendant to Plaintiff herein which total $8,387.63, leaving the amount due $20,003.91) and remove Defendant's name from the title, mortgage, and note pertaining to the Marital Domicile, with Plaintiff paying the cost of all transfer fees and both parties executing all documents necessary to effectuate this provision. In the event Plaintiff fails to effectuate the directives in this provision by December 31, 2024; the property shall be listed for sale for a list price of $640,000.00, with a New York State Licensed Real Estate Broker to be selected by Plaintiff; both parties shall cooperate with the listing, marketing and sale of the property; with any net proceeds remaining after the payment of usual and customary closing costs being paid in the following manner:
i. Plaintiff shall receive 100% of the net proceeds minus $20,003.91 which shall be paid to Defendant.
2. Household Contents - The testimony of Plaintiff and [Redacted] meet the burden of proof needed for this Court to determine that all of the contents of the Marital Domicile are the separate non-marital assets of Plaintiff. Accordingly, Plaintiff is hereby awarded sole and exclusive ownership, title and interest in all of the household contents currently located within the Marital Domicile.
3. Plaintiff's [Redacted] Retirement Account - The testimony of Plaintiff and evidence received by the Court at trial provide the proof needed for this Court to determine that Plaintiff's [Redacted] Retirement Account is the separate non-marital asset of Plaintiff. Accordingly, Plaintiff is hereby awarded sole and exclusive ownership, title and interest Plaintiff's [Redacted] Retirement Account.
4. Defendant's Retirement Assets - To the extent Defendant has any retirement benefits, the marital portion of said retirement assets are to be distributed with each party receiving a fifty percent share. To effectuate this and to the extent the parties require the preparation of a qualified domestic relations order, the parties shall utilize the following company and split the cost equally: [Redacted].
5. Other Assets - To the extent the parties are in possession, custody and control of any other assets, such property shall be the sole and exclusive property of that party, with the other having no further rights to same.
6. Allocation of Debts -
a. Chase Freedom Credit Card Ending [Redacted] - Based upon the testimony and evidence received at trial, the Court determines that this credit card, held solely in the name of Plaintiff, had a date of commencement balance of $2,659.39 which constituted marital debt of which both parties had equal responsibility for the payment of. As the Credit card is solely in the name of Plaintiff, Plaintiff is entitled to a credit from Defendant in the amount of $1,329.70, which shall serve as a credit towards the amount due from Plaintiff to Defendant for his equitable distribution pertaining to the Marital Domicile.
b. Citi Credit Card Ending [Redacted] - Based upon the testimony and evidence received at trial, the Court determines that this credit card, held solely in the name of Plaintiff, had a date of commencement balance of $7,097.02 which constituted marital debt of which both parties had equal responsibility for the payment of. As the Credit card is solely in the name of Plaintiff, Plaintiff is entitled to a credit from Defendant in the amount of $3,548.51, which shall serve as a credit towards the amount due from Plaintiff to Defendant for his equitable distribution pertaining to the Marital Domicile.
c. Capital One Credit Card Ending [Redacted] - Based upon the testimony and evidence received at trial, the Court determines that this credit card, held solely in the name of Plaintiff, had a date of commencement balance of $7,018.83 which constituted marital debt of which both parties had equal responsibility for the payment of. As the Credit card is solely in the name of Plaintiff, Plaintiff is entitled to a credit from Defendant in the amount of $3,509.42, which shall serve as a credit towards the amount due from Plaintiff to Defendant for his equitable distribution pertaining to the Marital Domicile.
d. Other Debt - To the extent that either party has any other debts in their individual names, those debts shall be the sole and exclusive responsibility of that party and the other party shall have no responsibility for those debts.
The Court recognizes that the Decision in Ahearn is distinguishable in that in Ahearn there was no indicia of a gift as the spouse utilizing her separate non-marital funds towards the purchase of a home during the purchase of a home during the parties' marriage placed a house solely in her name, whereas here the use of Plaintiff's separate non-marital retirement account funds were applied towards the purchase of the Marital Domicile listing both Plaintiff and Defendant in title, providing indicia of a gift of these separate funds from Plaintiff to Defendant.
From allocation of debts as set forth in Paragraph 6 herein below, which is not taking into account any other funds from Defendant to Plaintiff, as set forth herein.
c. Income Tax Returns
Both parties shall file separate tax returns for 2024 and all succeeding years, and Plaintiff may claim all available tax credits and exemptions regarding the Marital Domicile and the parties shall comply with all applicable laws, codes and rules pertaining to available tax credits and exemptions regarding the parties' Children.
d. Attorneys' Fees
The Appellate Division Second Department has noted how a trial court should determine if an award of attorneys' fees is warranted in a matrimonial action:
"In a matrimonial action, an award of attorney's fees is a matter committed to the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case (See Prochilo v. Prochilo, 165 A.D.3d 1304; Patete v. Rodriguez, 109 A.D.3d 595, 599). The purpose of Domestic Relations Law § 237(a) is to redress the economic disparity between the monied spouse and the nonmonied spouse by ensuring that the latter will be able to litigate the action on equal footing with the former (See Chesner v. Chesner, 95 A.D.3d 1252, 1253; Finnan v. Finnan, 95 A.D.3d 821; Prichep v. Prichep, 52 A.D.3d 61, 64-65).
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In determining whether to award attorney's fees, the court should review the financial circumstances of both parties, together with all of the other circumstances of the case, including, inter alia, the relative merit of the parties' positions, and whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation (See Prochilo v. Prochilo, 165 A.D.3d 1304; Chesner v. Chesner, 95 A.D.3d 1252; Prichep v. Prichep, 52 A.D.3d at 64-65)." (Brockner v. Brockner, 174 A.D.3d 567, 568 [2d Dept 2019]).
When seeking an award of attorneys' fees, parties are required to submit itemized billing statements as proof of the attorneys' fees incurred, both to demonstrate substantial compliance with 22 NYCRR 1400.2 and 1400.3 and to establish the "extent and value of [the] services" rendered (Yakobowicz v. Yakobowicz, 217 A.D.3d 733 [2d Dept 2023] [internal citations omitted]).
Here, Plaintiff's counsel's retainer agreement was admitted into evidence as Plaintiff's Exhibit 30, however Plaintiff did not admit into evidence any billing statements issued by Plaintiff's counsel to Plaintiff during the course of this litigation. In Plaintiff's counsel's post-trial submission, counsel merely notes, "Plaintiff should be awarded $10,000.00 in attorneys' fees," as Plaintiff owed counsel approximately $7,000.00 to $10,000.00 prior to trial, and Defendant was allegedly not forthcoming with his finances, therefore prolonging the trial. Notably counsel fails to provide a summary as to how she arrived at this figure with respect to the extent and value of the services rendered. Defendant failed to submit into evidence any retainer agreements by any legal counsel who had represented him in this action or any billing statements from such counsel. Accordingly, both parties are directed to pay their own attorneys' fees and court costs arising out of this action.
e. Child Support
In New York State the Child Support Standards Act is set forth within the New York State Domestic Relations Law (hereinafter "DRL") § 240, which provides:
"1. (a) In any action or proceeding brought (1) to annul a marriage or to declare the nullity of a void marriage, or (2) for a separation, or (3) for a divorce, or (4) to obtain, by a writ of habeas corpus or by petition and order to show cause, the custody of or right to visitation with any child of a marriage, the court shall require verification of the status of any child of the marriage with respect to such child's custody and support, including any prior orders, and shall enter orders for custody and support as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child and subject to the provisions of subdivision one-c of this section.
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The court shall make its award for child support pursuant to subdivision one-b of this section.
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Every order directing the payment of support shall require that if either parent currently, or at any time in the future, has health insurance benefits available that may be extended or obtained to cover the child, such parent is required to exercise the option of additional coverage in favor of such child and execute and deliver to such person any forms, notices, documents or instruments necessary to assure timely payment of any health insurance claims for such child.
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(j) The order shall be effective as of the date of the application therefor, and any retroactive amount of child support due shall be support arrears/past due support and shall, except as provided for herein, be paid in one lump sum or periodic sums, as the court shall direct, taking into account any amount of temporary support which has been paid.
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1-b. (a) The court shall make its award for child support pursuant to the provisions of this subdivision. The court may vary from the amount of the basic child support obligation determined pursuant to paragraph (c) of this subdivision only in accordance with paragraph (f) of this subdivision."
DRL § 240 then sets forth the manner within which basic child support is calculated, along with what are customarily referred to as child support add-ons.
Here, it is undisputed that the parties are the parents of the Children and that they have entered into an agreement whereby Plaintiff shall be the custodial parent of the Children subject to access time by Defendant. While Plaintiff has asserted that she is entitled to an award of child support from Defendant for the Children with add-ons utilizing the incomes of each party in the amounts they have historically earned, Defendant asserts that this calculation should be based upon his current income, which is only a fraction of his past income resulting from his employment leave, which he claims he is seeking to reinstate.
The Court does not find Defendant's arguments compelling and has determined it fair, just and equitable to calculate the parties' basic child support and child support add-ons pursuant to the parties' historic incomes. The Court will note, that at trial Defendant provided the Court with no medical or mental health records to substantiate any inability to work by Defendant, and he indicated that he is currently seeking reinstatement. In fact, Defendant's own testimony indicates that he took leave from his employment voluntarily and that his asserted conditions in no way prevent him from maintaining employment. The Court further finds it appropriate to impute additional income to Defendant of $1,600.00 per month/$19,200.00 per year arising out of rental proceeds from his two roommates, [Redacted] and [Redacted] (Fleming v. McCloskey, 173 A.D.3d 865 [2nd Dept 2019]). Accordingly, the Court computes Defendant's annual income at $119,535.00, comprised of $100,335.00 from his historic employment earnings and $19,200.00 from his imputed rental income.
Accordingly, the Court determines that Defendant's child support obligation payable to Plaintiff is $27,734.00 annually, $2,311.17 to be paid monthly on the first day of each month through the support collections unit for which the parties are directed to establish accounts for within ten (10) days of the date of entry of this Decision.
The Court further determines that the parties' pro rata child support obligation for statutory add-on expenses of childcare and unreimbursed medical expenses to be 51.8% for Plaintiff and 48.2% for Defendant. To effectuate this provision, the party incurring the add-on expense shall pay the add-on expense and within ten (10) days shall serve the other party via e-mail with a copy of the receipt/invoice requesting reimbursement of that party's pro rata share, and the party receiving such request shall make reimbursement to the other party within ten (10) days of receipt.
The Court further determines that Plaintiff is entitled to child support arrears from November 2023, which is when Plaintiff testified that Defendant ceased child support payments, through September 2024 in the amount of $25,422.87, which shall be paid by Defendant to Plaintiff within fifteen days of the entry of this Decision, or Plaintiff shall have leave of the Court to file, on notice of settlement to Defendant, a proposed money judgment for the then amount due. This Court further determines that Defendant is not entitled to a credit for overpayments made towards child support ($2,350.00 per month from January 2023 through October 2023, according to Plaintiff's testimony), as said payments were made voluntarily and not pursuant to a pendente lite order (McKay v. Groesbeck, 117 A.D.3d. 810 [2d Dept 2020]).
The Court further determines that both Plaintiff and Defendant shall, at their own individual costs, obtain health insurance for the parties' Children, including enrollment of the Children in any health insurance programs offered by local, state and/or federal governments.
The Court has utilized the following calculations to arrive at the determinations made above:
For purposes of calculating child support, Plaintiff's annual income adjusted for CSSA is $120,055.00 , Defendant's annual income adjusted for CSSA is $111,859.37, and the parties' combined parental income equals $231,914.37 (See DRL § 240(1-b)(c)(1)), of which Plaintiff's income comprises 51.8% and Defendant's income 48.2%. Multiplying the combined parental income up to the statutory cap of $183,000.00 by the appropriate child support percentage of 25% for two children yields an annual parental child support obligation of $45,750.00, of which 51.8% is to be paid annually by Plaintiff, or $1,973.62 per month, and 48.2% is to be paid annually by Defendant, or $1,838.88 per month (See DRL § 240(1-b)(c)(2)).
Next, because the combined parental income exceeds the statutory cap currently set at $183,000.00, the Court must determine the amount of child support, if any, for the amount of the combined parental income in excess of $183,000.00. Under the circumstances of this case and upon consideration of the statutory factors set forth in DRL § 240(1-b)(f)(1-10), including, among other things, the financial resources of the parties, the earning potential of the parties, and the standard of living enjoyed by the Children during the marriage in Westchester County, the Court finds it just and appropriate to calculate child support based on combined parental income above the statutory cap up to $230,000.00 (See Bari v. Bari, 200 A.D.3d 835, 838 [2d Dept 2021]; Sinnott v. Sinnott, 194 A.D.3d at 875; Matter of Levin v. Blum, 167 A.D.3d 609, 611 [2d Dept 2018]). In reaching this determination, the Court has considered Defendant's ability to maintain employment, as referenced supra. Additionally, the Court will not impose an undue burden on Plaintiff to sustain a lifestyle for the Children absent reasonable and just support from Defendant.
The combined parental income above the cap is $47,000.00 ($230,000.00 less $183,000.00). Applying the statutory percentage of 25% for two children yields an annual parental child support obligation above the cap of $11,750.00, of which 51.8% is to be paid annually by Plaintiff, or $506.88 per month, and 48.2% is to be paid annually by Defendant, or $472.28 per month. After adding that amount to Defendant's monthly pro rata share of the child support obligation up to the cap ($1,838.89), Defendant's total child support obligation for the Children equals $2,311.17 per month.
Accordingly, commencing on the first day of the first full month after the date of this Decision After Trial, Defendant shall remit payment of $2,311.17 per month as and for child support through the support collections unit, as directed supra. Upon emancipation of each child, child support shall be recalculated.
Defendant shall maintain a life insurance policy in an amount sufficient to secure the payment of child support and maintenance (See DRL § 236B(8)(a); Shvalb v. Rubinshtein, 204 A.D.3d 1059 [2d Dept 2022]).
The DRL provides that reasonable health care expenses not covered by insurance, the cost of health insurance, and childcare expenses should be allocated "in the same proportion as each parent's income is to the combined parental income" (DRL § 240(1-b)(c)(4), (5)(ii)). Here, Plaintiff is directed to pay her 51.8% pro rata share of the cost of providing health insurance benefits for the Children, which shall be deducted from Defendant's basic child support obligation (See id.; Candea, 173 A.D.3d at 666; Bauman v. Bauman, 132 A.D.3d 791, 793 [2d Dept 2015]). Defendant is directed to pay his 48.2% pro rata share of the Children's future unreimbursed health care expenses (See Strohli v. Strohli, 174 A.D.3d 938, 943 [2d Dept 2019]).
"Expenses for extracurricular activities are not specifically delineated as an 'add on' under the Child Support Standards Act" (Tuchman v. Tuchman, 201 A.D.3d 986, 992-993 [2d Dept 2022]). The parties shall be responsible for paying for such activities based on their pro rata share. Defendant is further directed to remit payment for his pro rata share for the following: (1) $25,422.87 in child support arrears ($2,311.17 for November 2023 through September 2024); (2) $2,819.70 for [Redacted] Childcare (Defendant's pro rata share of $650.00 per month from July 2023 through March 2024 as evidenced in Plaintiff's Exhibit 26); (3) $3,073.23 for [Redacted] (Defendant's pro rata share of $6,376.00 for activities from Summer 2023 through Summer 2024 as evidenced in Plaintiff's Exhibit 27); (4) $400.06 for [Redacted] (Defendant's pro rata share of $830.00 for C.A.S.' enrollment in [Redacted] Camp in August 2024 as evidenced in Plaintiff's Exhibit 28); and (5) $176.36 for unreimbursed medical expenses (Defendant's pro rata share of $365.90 in unreimbursed medical expenses as evidenced in Plaintiff's Exhibit 29 ).
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This figure is based on Plaintiff's testimony that she is currently earning $130,000.00.
The Court did not consider the last page of Plaintiff's Exhibit 29 as it was not apparent that the payments were for unreimbursed medical expenses.
Based upon the foregoing, it is hereby
ORDERED that Plaintiff is granted a Judgment of Divorce against Defendant, dissolving forever the bonds of matrimony existing between Plaintiff and Defendant upon the grounds of the Irretrievable Breakdown pursuant to DRL § 170(7); and it is further
ORDERED that Plaintiff shall have until December 31, 2024, to pay Defendant $20,003.91 and remove Defendant's name from both the title, mortgage and note pertaining to the Marital Domicile, with Plaintiff paying the cost of all transfer fees and both parties executing all documents necessary to effectuate this provision. In the event Plaintiff fails to effectuate the directives in this provision by December 31, 2024; the property shall be listed for sale for a list price of $640,000.00, with a New York State Licensed Real Estate Broker to be selected by Plaintiff; both parties shall cooperate with the listing, marketing and sale of the property; with any net proceeds remaining after the payment of usual and customary closing costs being paid in the following manner: (1) Plaintiff shall receive 100% of the net proceeds minus $20,003.91 which shall be paid to Defendant; and it is further
ORDERED that the household contents located within the Marital Domicile are determined to be the separate non-marital property of Plaintiff to which Plaintiff is awarded sole title and interest; and it is further
ORDERED that Plaintiff is hereby awarded sole and exclusive ownership, title and interest Plaintiff's [Redacted] Retirement Account; and it is further
ORDERED that to the extent Defendant has any retirement benefits, the marital portion of said retirement assets are to be distributed with each party receiving a fifty percent share. To the effectuate this and to the extent the parties require the preparation of a qualified domestic relations order, the parties shall utilize the following company and split the cost equally: [Redacted]; and it is further
ORDERED that to the extent the parties are in possession, custody and control of any other assets, such property shall be the sole and exclusive property of that party, with the other having no further rights to same; and it is further
ORDERED that to the extent that either party has any other debts in their individual names, beyond those addressed herein, those debts shall be the sole and exclusive responsibility of that party and the other party shall have no responsibility for those debts; and it is further
ORDERED that both parties shall file separate tax returns for the 2024 year and all succeeding years, and Plaintiff may claim all available tax credits and exemptions regarding the Marital Domicile and the parties shall comply with all applicable laws, codes and rules pertaining to available tax credits and exemptions regarding the parties' Children; and it is further
ORDERED that both parties are directed to pay their own attorneys' fees and court costs arising out of this action; and it is further
ORDERED that Plaintiff is awarded from Defendant monthly child support for the parties' Children in the amount of $2,311.17 to be paid monthly on the first day of each month commencing on October 1, 2024, through the support collections unit for which the parties are directed to establish accounts for within ten (10) days of the date of entry of this Decision; and it is further
ORDERED that the parties' pro rata child support obligation for statutory add-on expenses of childcare and unreimbursed medical expenses for the parties' Children to be 51.8% for Plaintiff and 48.2% for Defendant. To effectuate this provision, the party incurring the add-on expense shall pay the add-on expense and within ten (10) days shall serve the other party via e-mail with a copy of the receipt/invoice requesting reimbursement of that party's pro rata share, and the party receiving such request shall make reimbursement to the other party within ten (10) days of receipt; and it is further
ORDERED that Plaintiff is awarded from Defendant $25,422.87 for child support arrears for the parties' Children, which shall be paid by Defendant to Plaintiff within ten (10) days of the entry of this Decision, or Plaintiff shall have leave of the Court to file, on notice of settlement to Defendant, a proposed money judgment for the then amount due OR may utilize this amount due from Defendant as a further credit towards any sums due from Plaintiff to Defendant arising out of this Decision; and it is further
ORDERED that Plaintiff is awarded from Defendant the following arrears for the parties' Children: (1) $2,819.70 for [Redacted] Childcare; (2) $3,073.23 for [Redacted]; (3) $400.06 for [Redacted] Camp; and (4) $176.36 for unreimbursed medical expenses, all of which shall be paid by Defendant to Plaintiff within ten (10) days of the entry of this Decision, or Plaintiff shall have leave of the Court to file, on notice of settlement to Defendant, a proposed money judgment for the then amount due OR may utilize this amount due from Defendant as a further credit towards any sums due from Plaintiff to Defendant arising out of this Decision; and it is further
ORDERED that both Plaintiff and Defendant shall, at their own individual costs, obtain health insurance for the parties' Children, including enrollment of the Children in any health insurance programs offered by local, state and/or federal governments; and it is further
ORDERED that Plaintiff shall serve this Decision and Order with Notice of Entry on Defendant within 20 days of the date of this Decision and Order, and shall file an Affidavit of Service within 20 days of the date of this Decision and Order; and it is further
ORDERED that to the extent any relief sought has not been granted, it is expressly denied.
The foregoing constitutes the Decision and Order of the Court.