Opinion
Index No. 62613/2022
04-26-2024
D.A., Plaintiff, v. C.A., Defendant.
Joseph D. DePalma, Esq - counsel for plaintiff Keith M. Brown, Esq - counsel for Deutsche
Unpublished Opinion
MOTION DECISION
Joseph D. DePalma, Esq - counsel for plaintiff
Keith M. Brown, Esq - counsel for Deutsche
HON. ROBERT S. ONDROVIC, J.S.C.
On August 21, 2023, and January 30 and 31, 2024, a nonjury trial was held as to certain issues concerning, inter alia, custody, child support, and equitable distribution. After considering the sworn testimony of the parties, the credibility of the witnesses, the documents admitted into evidence, and the closing statements submitted by the parties and the attorney for the children, the Court makes the following findings of fact and conclusions of law:
Factual and Procedural History
The parties were married in February 2013 and are the parents of twins born in 2018. During the marriage the parties resided at XXXXXXX, which was purchased prior to the marriage in November 2012 for the amount of $375,000 (hereinafter the marital residence). In July 2022, the plaintiff commenced this action for divorce on the grounds of cruel and inhuman treatment (see Domestic Relations Law [DRL] § 170[1]), and seeking ancillary relief. In September 2022, the defendant filed a verified answer with counterclaim seeking a divorce pursuant to DRL § 170(7).
In a statement of net worth (hereinafter SNW) filed in November 2022, the defendant indicated that she is employed as a teacher and earns $104,619 per year. She listed monthly expenses totaling $9,532.18, and assets which include a Chase checking account ending x8565 with a date of commencement balance of $12,753, a Chase savings account ending x2301 with a date of commencement balance of $3,518.58, a Chase savings account ending x4901 with a date of commencement balance of $306.98, and the marital residence. The defendant indicated that she has a retirement account with the Teacher Retirement System and is the title owner of a 2018 Ford Explorer. The defendant's liabilities include the mortgage on the marital residence, which had an outstanding balance of $289,880 as of October 2022, and student loans in the amount of $85,708.12. Attached to the SNW is a copy of the defendant's 2021 income tax return.
The plaintiff also filed a SNW in November 2022, indicating that he is employed as a police officer by the New York City Police Department and earns an annual income of $89,457. The plaintiff's assets include the marital residence, a checking and savings account with Municipal Credit Union, a 457 deferred compensation plan, an annuity with a current value of $8,000, and a 2018 Ford Explorer. The plaintiff did not list the values of his bank accounts or deferred compensation plan, or attach a copy of his income tax return to the SNW. The plaintiff's liabilities include the mortgage on the marital residence and credit card debt in the amount of $2,000.
In January 2023, an attorney for the children (hereinafter the AFC) was appointed and the parties were directed to share equally the cost of the AFC's fees and disbursements. A note of issue was filed by the defendant on February 27, 2023.
On August 14, 2023, the defendant filed a letter with the Court stating that the only exhibits uploaded to the virtual evidence room by the plaintiff was the summons and verified complaint and the answer, and requested that the plaintiff be precluded from offering any additional evidence at trial. The Court granted the application and stated that the trial scheduled for August 21, 2023, will proceed as an inquest on the defendant's counterclaim.
On August 21, 2023, the Court signed a temporary order of protection (hereinafter TOP), which remained in effect until January 5, 2024, directing the plaintiff to stay away from the defendant and the children. On December 21, 2023, the TOP was extended until March 21, 2024. On March 25, 2024, the TOP was extended again until June 25, 2024. By order dated January 12, 2024, the Court directed the plaintiff to pay child support to the defendant in the amount of $1,731.56 per month through the Support Collections Unit (hereinafter SCU).
The Trial
The Court must note at the outset that the behavior of the plaintiff's original attorney throughout her representation of the plaintiff, including the first day of trial, demonstrated a complete lack of professionalism, civility, and competence. The letters she filed on behalf of the plaintiff were often unintelligible and her conduct caused inordinate delay, impeded any potential resolution of even the most benign issues, and disrupted proceedings. The plaintiff's attorney was removed from the courtroom during the first day of trial after she disregarded the Court's admonitions and continued her constant interruptions and hostile and argumentative manner. The Court made a finding of criminal contempt against the plaintiff's attorney, which was later dismissed after she apologized to the Court, the defendant's attorney, and the AFC. The plaintiff discharged his attorney on the record and the Court stayed the trial for 30 days to allow the plaintiff to retain new counsel. The trial resumed on January 30, 2024.
At trial, the defendant testified that she resides in Westchester County, but declined to disclose her address because she is afraid of the plaintiff. According to the defendant, the plaintiff was violent throughout the marriage and threatened "to kill [her] and use his connections as law enforcement to find [her]." The defendant stated that on one occasion in August 2023, the plaintiff demanded that the defendant return home with the children even though it was approximately midnight and the children had fallen asleep. She recalled that the plaintiff showed up at her mother's house and banged on the door intermittently from midnight until 3:00 a.m. The defendant explained that she did not call the police because the plaintiff's cousin works at the local police precinct. She testified that the reason she never called the police during the marriage when the plaintiff threatened her or was violent was because the parties resided in Mt. Vernon, where the plaintiff's brother has worked as a police officer for over 20 years. The defendant testified that before moving to her current residence, she was living with the children at her mother's house.
Transcript 1/30/2024 at 8
The defendant asserted that the plaintiff began physically abusing her in 2018 when she was pregnant. She testified that the plaintiff would intimidate her, shake her, and throw her to the ground. The defendant stated that she was never physical with the plaintiff except to defend herself or free herself from his restraint. She testified that the plaintiff was also verbally abusive and made derogatory remarks toward her on a daily basis. The defendant testified that on one occasion, the plaintiff elbowed her in the stomach while she was pregnant when she reached for his phone.
The defendant testified that the plaintiff, who is a police officer, was placed on modified duty and has been under psychological review for about two years. She noted that the plaintiff's firearm was confiscated out of concern for his safety. The defendant testified that the plaintiff is "mentally unstable," has "threatened to kill [her]," and has told her that he "knows when death is coming." She noted that the plaintiff has "issues at work" and is constantly being reassigned to different locations. The defendant stated that she has a master's degree in childhood education and educational leadership and has been employed as a teacher in the Bronx since 2016.
id. at 16
id. at 17
The defendant testified that the children reside with her and the last time the plaintiff exercised his right to supervised visitation with the children was on October 31, 2023. She stated that she is seeking a continuation of supervised visitation because of the plaintiff's mental health issues, emphasizing that he has expressed suicidal ideations throughout the years. The defendant testified that the plaintiff's relationship with the children is not "very healthy," he favors one of the children, and has disparaged her to the children. She asserted that the children suffer from developmental delays, including speech and fine and gross motor skills, and have an IEP at school. She testified that the children were conceived after four rounds of IVF and she took out a personal loan in the approximate amount of $86,000 to cover that expense as well as the cost of graduate school. She stated that she pays $480 per month toward the loan without any contribution from the plaintiff.
id. at 25
The defendant testified that before moving to her current residence, the parties lived on the lower level of the marital residence, which is a two-family home in Mt. Vernon. She stated that the upper level was occupied by renters, who pay $2,100 per month and an additional $100 to rent a parking spot. The defendant testified that the plaintiff also rents out six parking spots and that he receives all rental payments. She asserted that both parties contributed toward the mortgage payments, but the plaintiff has been solely responsible for that expense during the pendency of this action. The defendant stated that she attempted to have the marital residence appraised to facilitate the sale of the home, but the plaintiff interfered. She noted that she moved out of the marital residence in August 2023, which was approximately one year after the commencement of the action, that she picked up some personal belongings for herself and the children, and the plaintiff may keep the remaining furnishings.
The defendant testified that the plaintiff stopped making any payments toward her Ford Explorer since the commencement of this action. She stated that she was forced to make those payments and paid off the note on the vehicle as of December 2023. The defendant testified that the plaintiff also stopped contributing toward the parties' living expenses, including cable and groceries, and hid food for himself in suitcases in the basement. She stated that her brother provides childcare assistance and she pays him $400 per week.
The defendant testified that the children are covered under the plaintiff's health insurance, GHI Emblem Health, through his employer. She stated that she incurred unreimbursed medical expenses from the children's doctor visits and paid for the children to enroll in a summer camp. The defendant noted that one of the children required one-on-one services, which cost $500 per week for five weeks. She testified that she is seeking a contribution from the plaintiff of his one-half share of those expenses.
The defendant testified that the plaintiff has made only three partial child support payments and she has initiated the process for future payments to be made through SC U.She testified that the plaintiff refused to file a joint tax return in 2022, and that she incurred a penalty of $11,000 from the IRS, which she still owes.
On cross examination, the defendant acknowledged that she made no allegations of physical abuse against the plaintiff in her verified answer and counterclaim, or during any court conferences prior to trial. She acknowledged that between 2021, when the plaintiff was placed on modified duty, and August 2023, when she vacated the marital residence, there were occasions when the plaintiff was alone with the children. The defendant stated that the plaintiff brought the children to and from school, but did not feed or clean them adequately.
The defendant testified that the parties purchased the marital residence approximately one month before the marriage and that the mortgage payment was approximately $3,300 per month. She acknowledged that the plaintiff paid the down payment on the marital residence and the mortgage was paid from the plaintiff's bank account. The defendant insisted, however, that both of their incomes went toward the mortgage payments even though they did not share a joint bank account. She stated that the parties had an economic arrangement whereby the plaintiff would pay for "the major bills in the home" and she would pay for living expenses, vacations, and home repairs. According to the defendant, the plaintiff gifted her a 2018 Ford Explorer after the birth of the children and it is titled in her name. She testified that the vehicle is not in good condition, but she has no other vehicle to use to transport the children. The defendant testified that she has a joint savings account with her father for the sole purpose of depositing her father's social security checks.
id. at 96
After the defendant rested, the plaintiff was called as a witness. The plaintiff testified that the defendant has been verbally, emotionally, and physically abusive toward him since her pregnancy. He asserted that she would taunt him and use derogatory language in the presence of the children. The plaintiff recounted that on February 17, 2019, which is the parties' wedding anniversary date, the defendant physically attacked him. He testified that the parties were home with the children when the defendant started hitting, punching, and choking him as he came out of the bathroom. The plaintiff stated that he did not hit the defendant back, but instead got in his car and called her brother. He testified that he sustained bruising to his face and scratches to his body. The plaintiff testified that in April 2022, he sought a temporary order of protection against the defendant in Family Court after the defendant physically attacked him and damaged his belongings, but did not receive one. He stated that after he attempted to obtain the order of protection, the defendant threatened him "with weapons" and to "make accusations [that he] abused [her]" to damage his career. The plaintiff confirmed that the defendant has never filed a family offense petition against him. He denied that he ever threatened the defendant, used derogatory language towards her, or physically abused her while she was pregnant. The plaintiff stated that there were many occasions when the defendant would aggressively reach over him and grab his belongings, but he never retaliated.
id. at 136
The plaintiff testified that he is seeking sole physical custody of the children and final decision-making authority with input from the defendant. He suggested that the defendant's visitation with the children should be supervised and limited to two days per week. The plaintiff stated that in 2020, the children's pediatrician recommended that the children enroll in early intervention services, which were held virtually during the day, five days per week. The plaintiff stated that since the defendant was working during the day, she only attended one session per week while he attended the other four. He testified that he was responsible for transporting the children to and from their pre-K program located in New Rochelle. The plaintiff stated that the children are currently enrolled in kindergarten and he was fully involved in the process of obtaining IEPs for the children. He noted that he was unable to attend the last IEP meeting because the defendant obtained an order of protection against him.
The plaintiff stated that during one supervised visit with the children, the son who is more verbal told him that "he missed [him] a lot and started crying." He testified that the children "don't have a voice other than letting [him] know they miss [him] a lot" and that "no one is listening to them." The plaintiff noted that the children are missing out on spending time with his side of the family. He stated that he has a very close relationship with both children and enjoys spending time reading with one son and playing with toys with the other son.
id. at 143
id.
The plaintiff testified that he had approximately six visits with the children, which were supervised by Ms. L. He described that the rules regarding photographs, gifts, and time restrictions created a very hostile environment. The plaintiff contended that his visitation with the children does not need to be supervised given that he previously cared for them without issue and enjoyed a healthy relationship with them. He testified that he would bring the children to the park and had a regular scheduled routine.
The plaintiff testified that he has been a police officer for the NYPD for 18 ½ years. He stated that he was placed on modified duty from January 2021 until January 2023, at which time he returned to full time duty. The plaintiff noted that he was on full-time duty for a period of only five days when he requested to return to modified duty. According to the plaintiff, he requested to return to modified duty because he feared that the defendant would use his firearm against him. He noted that around this time, while the parties were in the midst of divorce proceedings, he discovered that the defendant earned a total of approximately $300,000 over the course of three years and was hiding money from him.
The plaintiff testified that he is seeking sole ownership of the marital residence because he purchased it before the marriage and only agreed to name the defendant on the deed in 2019 because the defendant pressured him and "[he] felt threatened to do so." He testified that he had just been released from the hospital after having heart surgery when the defendant arranged for an attorney to draft the real property transfer documents for him to sign.
id. at 156
The plaintiff testified that the Ford Explorer was purchased in 2018 as "a family car for the kids" and was not a "gift" for the defendant. He stated that he paid the initial down payment and all subsequent payments until December 2022. The plaintiff is seeking either sole ownership of the vehicle or that the defendant retain the vehicle and pay him his share of the value or reimburse him for his payments.
id. at 159
The plaintiff testified that he had no conversations with the defendant before she took out a loan to pay for her master's degree. He stated that he took out two loans in the amounts of $20,000 and $40,000 to pay for medical expenses related to the defendant's IVF treatments. The plaintiff later clarified that the $40,000 loan was obtained in February 2022, because he could not afford the expenses of the marital residence and the parties' living expenses. He stated that his payments toward the loan are automatically deducted from his paycheck and the defendant should be responsible for a one-half share of that debt. He stated that he is seeking a one-half share of the defendant's bank accounts as of the date of commencement given that he had been paying for all of the housing expenses as well as her personal bills. The plaintiff asserted that each party should retrain their own respective retirement accounts.
The plaintiff acknowledged that he has never paid the full amount of child support and explained that he was experiencing financial difficulty since he was solely responsible for the expenses of the marital residence and paying down the balance of the $40,000 loan.
On cross examination, the plaintiff claimed that Ms. L. had been paid in full and he terminated the visits due to the hostile environment. The plaintiff insisted that the children "have demands that they want to be heard on [in this proceeding]" and asserted that the AFC met with the children on only one occasion. He acknowledged that he has not been with the children alone without a supervisor since the AFC was appointed.
id. at 215
The plaintiff acknowledged that his employment file from the NYPD was admitted as an exhibit at trial and stated that he does not agree with any of his performance evaluations. He also acknowledged that the file contains statements made by him to his supervisors and clinicians. The plaintiff admitted that he has been transferred approximately five times since 2020. He contended that the information contained in his evaluations should have no bearing on the issue of custody because it did not hinder his ability to care for the children. The plaintiff denied that he is on modified duty due to mental health issues.
The plaintiff testified that he installed cameras outside of the home and there are no visible cameras within the home. He stated that he believes there are hidden recording devices inside the home because the defendant was aware of certain things that he had only shared while on the phone with other family members and friends. The plaintiff claimed that all negative conversations and physical interactions between the parties that occurred in front of the children were the fault of the defendant. He asserted that he was threatened not to report the defendant's behavior to the police.
The plaintiff testified that when he ended the visitation sessions supervised by Ms. L. because of the hostile environment, he believed that a new supervisor would be arranged within a month. The plaintiff stated that he did not anticipate the children suffering any negative impact from the termination of his visits beyond the overall impact of the divorce proceedings on the children. He acknowledged that his last visit with the children was on October 31, 2023, and he has not seen or spoken to the children since.
The plaintiff assumed that the defendant was better able than him to understand the educational needs of the children given her occupation as a teacher. He testified that the children started kindergarten in August 2023, after they vacated the marital residence and have been "declining in their performance."
id. at 256.
Closing Statements
In her closing statement, the defendant requested sole physical and legal custody of the children, emphasizing that she has been primarily responsible for the children since she vacated the marital residence in August 2023, and is better able to promote stability for the children and provide for their overall wellbeing. She asserted that the plaintiff's mental health issues prevent him from being able to act as a coparent and foster a relationship between her and the children.
The defendant requested, among other things, that the parties' retirement accounts be divided equally pursuant to a QDRO, the marital residence be sold and the proceeds split equally between them, and each party retain the vehicle in their possession. She asserted that the plaintiff should be directed to pay child support in the amount of $1,961.80 per month until the children attain the age of 26 years, and the parties each contribute a one-half share toward the children's unreimbursed medical expenses, college expenses subject to a cap based on the tuition at SUNY Binghamton, extracurricular activities, summer camp, tutoring, childcare expenses, and any expenses incurred in order to obtain necessary services for the children through their school district. The defendant also stated that the parties should be directed to alternate, on an annual basis, the right to claim the children as tax dependents.
With respect to the marital debts, the defendant requested that the plaintiff be directed to pay a one-half share of the monthly loan debt incurred to pay for IVF treatment and graduate school, to be paid off the top of the net sale proceeds of the marital residence. She also requested that any money owed by the plaintiff to the AFC should be paid from his share of the net sale proceeds of the marital residence. The defendant also sought an award of counsel fees in the amount of $70,000, to be paid by the plaintiff within 20 days after service of notice of entry of a judgment of divorce.
In his closing statement, the plaintiff contended that an award of joint physical and legal custody is in the best interests of the children. He stated that he resumed supervised visitation with the children, is committed to providing a nurturing and stable home for the children, and dedicated to supporting the children's educational and developmental needs. The plaintiff emphasized that during the marriage, he was actively involved in the children's lives and insisted that he endured verbal and emotional abuse by the defendant, often in the presence of the children.
The plaintiff requested an award of sole ownership of the marital residence. He argued that he purchased the marital residence prior to the marriage, the defendant made no financial contributions to the household expenses, and the defendant manipulated him into adding her name to the deed in 2019 after he underwent surgery. The plaintiff contended that up until December 2022, the defendant made no financial contributions toward the 2018 Ford Explorer, which was purchased by him as a family vehicle when the children were born. He requested to retain ownership of the vehicle or receive an equitable share based on his contributions. The plaintiff also stated that each party should retain ownership of their respective retirement accounts given that they "possess equal retirement benefits." He further requested an award of one-half of the value of all accounts held in the defendant's individual name as of the date of commencement, emphasizing that during the marriage he was responsible for all household expenses as well as certain of the defendant's personal bills. The plaintiff contended that he was forced to take out a loan to help cover the cost of household expenses and the defendant should be responsible for her one-half share. Finally, the plaintiff argued that each party should be responsible for their own legal fees.
NYSCEF Doc. No. 240 at 18
In a closing statement, the AFC recommended that an award of joint custody is not appropriate under the circumstances of this case, emphasizing the "turmoil that has surrounded [the children's] lives because of their parents' inability to cohabit." The AFC stated that based on the evidence admitted at trial, his limited conversations with the children, and his observations of the parties, an award of sole legal and physical custody in favor of the defendant is warranted. The AFC recommended that the plaintiff continue supervised visitation with the children.
NYSCEF Doc. No. 238
Conclusions of Law
Grounds for Divorce
In the verified complaint filed on July 20, 2022, the plaintiff sought a divorce on the ground of cruel and inhuman treatment (see DRL § 170[1]). In an answer, the defendant interposed a counterclaim seeking a divorce pursuant to DRL § 170(7).
The parties' sworn testimony at trial, as detailed above, sufficiently demonstrated that the marriage had irretrievably broken down for a period of at least six months. Accordingly, since the matter proceeded as an inquest on the defendant's counterclaim, the Court grants the defendant a divorce on the ground set forth in DRL § 170(7).
Custody
The paramount concern in any custody determination is the best interests of the child, under the totality of the circumstances (see Eschbach v Eschbach, 56 N.Y.2d 167, 171 [1982]; Friederwitzer v Friederwitzer, 55 N.Y.2d 89, 95-96 [1982]). In determining the best interests of the child, the factors to be considered include which alternative will best promote stability, the available home environments, the past performance of each parent, each parent's relative fitness, including ability to guide the child and provide for the child's overall well-being, and the child's desires (see Eschbach v Eschbach, 56 N.Y.2d at 172-173; Matter of Hart v Hart, 218 A.D.3d 582, 583 [2d Dept. 2023]). "Joint custody reposes in both parents a shared responsibility for and control of a child's upbringing and is appropriate between relatively stable, amicable parents [who behave] in [a] mature [and] civilized fashion" (Matter of Argila v Edelman, 174 A.D.3d 521, 523 [2d Dept. 2019] [internal quotation marks omitted]). Although the position of the AFC is a factor to be considered in determining the children's best interests, it is not dispositive (see Matter of Jackson v Coleman, 94 A.D.3d 762, 763 [2d Dept. 2012]).
The evidence adduced at trial demonstrates without question that the parties' relationship was profoundly dysfunctional and hostile. Both the plaintiff and the defendant claim that they suffered physical abuse at the hands of the other and accuse the other of making disparaging remarks in the presence of the children. The Court credits the defendant's testimony that she is afraid of the plaintiff and that the plaintiff used his position as a police officer and his familial connections to law enforcement to intimidate her and discourage her from seeking help. The Court has also considered the evidence in the record of the plaintiff exercising poor judgment, lacking insight into his documented mental health issues, and failing to take responsibility for his actions. The plaintiff's testimony suggesting that he voluntarily turned over his firearm because he was concerned that the defendant would use it against him conflicts with the stated reason in his employment record, which indicates that it was due to concerns regarding his state of mind. The Court also finds, however, it likely that both parties share responsibility to varying degrees for the antagonism in their relationship and its deterioration.
While the Court has serious concerns about the plaintiff's failure to acknowledge his mental health issues and the impact his emotional instability has on his fitness as a parent, the Court is satisfied that the plaintiff loves the children, that he enjoyed a close relationship with them during the marriage-especially given that his modified work schedule allowed him to spend time in the home with them when they were young-and that he was involved in the children's upbringing. There is virtually no evidence in the record establishing that the parties are unable to consult with each other on matters that impact the children. Rather, the evidence demonstrates that notwithstanding the marital dysfunction, the parties enrolled the children in early intervention services at the recommendation of their pediatrician, the plaintiff participated in those sessions multiple times per week due to the defendant's work schedule, the plaintiff transported the children to and from their pre-K program, and the parties were successful in obtaining IEPs for the children when they enrolled in kindergarten. Furthermore, the Court credits the plaintiff's testimony that he wishes to remain actively involved in decisions affecting the children and would defer to the defendant on issues regarding the children's education given her expertise.
Under these circumstances, the Court finds that the children's best interests would be served by awarding the parties joint legal custody, with the defendant having final decision-making authority for all major decisions including, but not limited to, education, medical/health, therapeutic, psychiatric, extracurricular activities, summer camp, religion, and tutoring.
Consultation between the parties regarding a major decision shall be initiated by an email from one party to the other party. The subject line of the email shall be "Major Decision" and shall not be part of any other email chain. The initiating party shall set forth the details regarding the major decision(s) at issue and the initiating party's position in connection therewith. The party who receives the initiating email shall promptly respond in writing by email no later than 72 hours after it was sent by the initiating party and shall set forth his/her position regarding the major decision(s) at issue. If the initiating party is the defendant, and she does not receive a written response from the plaintiff within 72 hours, the plaintiff shall be deemed to have waived his right to consult with the defendant prior to the major decision being implemented. The defendant, who hereunder was awarded final decision-making authority, must notify the plaintiff in writing by email of the decision and its implementation, as well as any other relevant details. Neither party shall use this directive as a basis to send unnecessary and unproductive emails to the other for the purpose of harassing, alarming or annoying.
The Court cautions that neither party shall disparage the other in the presence of the children or otherwise interfere with the children's relationship with the other parent by making demeaning and negative statements about that parent to the children.
With respect to the issue of physical custody, the Court finds that the children's best interests would be served by awarding the defendant sole residential custody, with a continuation of supervised visitation to the plaintiff. The testimony and evidence admitted at trial demonstrates that the defendant is more able than the plaintiff to promote stability for the children, provide a suitable home, and provide for the children's emotional well-being and development. The defendant has been primarily responsible for the children's daily care since she vacated the marital residence in August 2023, and ensures that they are receiving the appropriate services and interventions to support their developmental and educational needs. The defendant has remained steadily employed as a teacher, her schedule allows her to care for the children when they are not in school, and she receives childcare assistance from her brother. In reaching this determination, the Court has also considered the credible evidence of the plaintiff's mental health issues, which impact his ability to resume full-time work, the observations of the plaintiff's former visitation supervisor as set forth in her report dated October 26, 2023, that the plaintiff discontinued supervised visitation with the children in late October 2023, and that approximately three months had elapsed until he purportedly resumed supervised visitation with the children in February 2024. There is no basis on this record to make any changes to the plaintiff's parental access at this time.
Maintenance and Child Support
In his closing statement, the plaintiff indicated that he waived his right to an award of maintenance. In her statement of proposed disposition and closing statement, the defendant asserted that neither party is entitled to an award of maintenance given that their incomes are roughly equivalent.
NYSCEF Doc. No. 240 at 13
NYSCEF Doc. No. 239
The Court will not belabor this issue based on the parties' positions except to agree with the defendant to the extent of finding that based on the plaintiff's income of $89,457 and the defendant's income of $104,619.24, as reported on their respective income tax returns in 2022, the presumptive amount of maintenance is $0 per month and an award in favor of either party is not warranted (see DRL § 236[B][6][c][2]).
"The Child Support Standards Act 'sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling'" (Spinner v Spinner, 188 A.D.3d 748, 751 [2d Dept. 2020], quoting Matter of Freeman v Freeman, 71 A.D.3d 1143, 1144 [2d Dept. 2010]; see DRL § 240[1-b][c]). "'Where the combined parental income exceeds that ceiling, the court, in fixing the basic child support obligation on income over the ceiling, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1-b)(f), or to apply the statutory percentages, or to apply both'" (Spinner v Spinner, 188 A.D.3d at 751, quoting Candea v Candea, 173 A.D.3d 663, 664 [2d Dept. 2019]; see DRL § 240[1-b][c][3]). "'The court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap'" (Spinner v Spinner, 188 A.D.3d at 751, quoting Candea v Candea, 173 A.D.3d at 665).
For purposes of calculating child support, the plaintiff's CSSA income is $89,457, the defendant's CSSA income is $104,619.24, and the parties' combined parental income equals $194,076.24 (see DRL § 240[1-b][c][1]), of which the plaintiff's income comprises 46% and the defendant's income 54%. Multiplying the combined parental income up to the statutory cap of $163,000 by the appropriate child support percentage of 25% for two children yields an annual parental child support obligation of $20,653.38, of which 46% is to be paid annually by the plaintiff, or $1,721.12 per month (see DRL § 240[1-b][c][2]).
Next, because the combined parental income exceeds the statutory cap currently set at $163,000, the Court must determine the amount of child support, if any, for the amount of the combined parental income in excess of $163,000. Under the circumstances of this case and upon consideration of the statutory factors set forth in DRL § 240(1-b)(f)(1-10), including the financial resources of the parties and the standard of living enjoyed by the children during the marriage, the Court finds that an award of child support based on combined parental income above the statutory cap is not warranted.
It is well settled that a party's child support obligations commence, and are retroactive to, the date the application for child support was first made, which, in this case, was September 6, 2022, the date of the defendant's verified answer with counterclaim (see Shvalb v Rubinshtein, 204 A.D.3d 1059, 1063 [2d Dept. 2022]; Posson v Posson, 243 A.D.2d 884, 885 [3d Dept. 1997]). Here, however, it is undisputed that the defendant continued to reside in the marital residence with the children until August 2023. Under these circumstances, the defendant is awarded retroactive child support from September 1, 2023-which is the first day of the first full month after the defendant vacated the marital residence with the children-to date (7 months), in the total amount of $12,047.84, subject to any credits to which the plaintiff is entitled for all payments of child support made by him since September 1, 2023 (see e.g. Sinnot v Sinnot, 194 A.D.3d 868, 878 [2d Dept. 2021]). Any amount of retroactive child support owed by the plaintiff to the defendant shall be paid within 60 days of the date of this decision after trial.
Going forward, the plaintiff's child support obligation as set forth herein shall be paid to the defendant through the SCU on the seventh day of each month commencing on May 7, 2024, and continuing each month thereafter until the children become emancipated (see DRL § 240[1-b][b][2]). Although there was testimony that the children are developmentally delayed in speech and fine and gross motor skills and receive extra support in school in the form of an IEP, there is insufficient evidence in the record to support an order directing the plaintiff to pay child support until the children attain the age of 26 years (see DRL § 240-d).
The DRL provides that reasonable health care expenses not covered by insurance, the cost of health insurance, and child care 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]). Thus, the parties are directed to share on a pro rata basis the cost of those expenses, which is 46% for the plaintiff and 54% for the defendant (see Gonzalez-Furtado v Furtado, 221 A.D.3d 975, 977 [2d Dept. 2023]). To the extent that the defendant incurs the expense of a Special Education Itinerant Teacher (SEIT) for either of the children, the parties are directed to share that cost in the same proportion set forth above. The parties are directed to pay their respective pro rata share of the aforementioned expenses within thirty (30) days of presentation of proof of payment. "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]), and the Court declines to direct the plaintiff to pay a pro rata share of those expenses for the children in addition to his basic child support obligation. Furthermore, given that the children were enrolled in kindergarten at the time of trial, it is premature to direct the plaintiff to contribute to the children's college expenses (see Spinner v Spinner, 188 A.D.3d 748, 752 [2d Dept. 2020]).
The Court rejects the defendant's suggestion that the plaintiff should bear the entire cost of providing health insurance for the children.
The plaintiff shall continue to provide health insurance coverage for the children and shall maintain a life insurance policy in an amount not less than $500,000 for the benefit of the parties' children naming the defendant as trustee for the children until payment of child support is completed (see Shvalb v Rubinshtein, 204 A.D.3d 1059 [2d Dept 2022]). The plaintiff shall provide proof of coverage within sixty (60) days of service of notice of entry of a judgment of divorce.
The parties shall each be entitled to claim both children as dependents in alternating years, with the defendant to have the exemptions in even-numbered years and the plaintiff to have them in odd-numbered years. The plaintiff shall be entitled to the tax deduction only if he is current on his child support obligations on the first day of the year for which the deduction is to be declared.
Equitable Distribution
Equitable distribution of marital property does not necessarily mean equal distribution (see Santamaria v Santamaria, 177 A.D.3d 802, 804 [2d Dept. 2019]; Culen v Culen, 157 A.D.3d 926, 929 [2d Dept. 2018]). "'Domestic Relations Law § 236 mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the courts to consider a number of statutory factors'" (Fairchild v Fairchild, 149 A.D.3d 710, 710-711 [2d Dept. 2017], quoting Fields v Fields, 15 N.Y.3d 158, 170 [2010]). "Those factors include: the income and property of each party at the time of marriage and at the time of commencement of the divorce action; the duration of the marriage; the age and health of the parties; the loss of inheritance and pension rights; any award of maintenance; any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of marital property by the party not having title; and any other factor which the court shall expressly find to be just and proper" (Taylor v Taylor, 140 A.D.3d 944, 945-946 [2d Dept. 2016]; see DRL § 236[B][5][d]). "'While equitable distribution does not necessarily mean equal distribution, when both spouses have made significant contributions to a marriage of long duration, the division of marital property should be as equal as possible'" (Kamm v Kamm, 182 A.D.3d 590, 591 [2d Dept. 2020], quoting Eschemuller v Eschemuller, 167 A.D.3d 983, 985 [2d Dept. 2018]).
Marital property is defined in DRL § 236(B)(1)(c) as "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action." Separate property is defined as including "property acquired before marriage" or "property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse" (DRL § 236[B][1][d][1], [3]).
Here, the parties were married for approximately 9 ½ years when the plaintiff commenced this action for divorce. They resided together in the marital residence up until August 2023, when the defendant vacated the home with the children. The evidence demonstrated that the parties earn similar incomes, notwithstanding that the plaintiff was placed on modified duty resulting from mental health concerns.
It is undisputed that although the parties maintained separate bank accounts during the marriage, they filed joint tax returns through 2018. There is evidence in the record suggesting that the parties functioned somewhat as an economic partnership, notwithstanding the plaintiff's testimony that he was responsible for paying all household expenses. According to the defendant, the plaintiff would pay for "the major bills in the home," whereas she would pay for certain living expenses, vacations, and home repairs. The defendant acknowledged that the mortgage payments were withdrawn from the plaintiff's bank account and that he had been paying the expenses related to the 2018 Ford Explorer up until the commencement of this action. With the exception of the Chase savings account ending x3201 held by the defendant and her father into which her father's social security benefits are deposited, there is no evidence in the record suggesting that the accounts held by the parties in their individual names only were funded with separate property, but rather, income earned during the marriage. Thus, the parties are awarded a one-half share of the value of all bank accounts held in their individual names only as of the date of commencement of the action, to wit, July 20, 2022.
id. at 96
The Court notes that there was no evidence admitted at trial reflecting the value of the plaintiff's accounts as of the date of commencement. The defendant's updated SNW dated August 10, 2023, indicated that her Chase checking account ending x8565 had a date of commencement balance of $12,753 and her Chase savings account ending x4901 had a date of commencement balance of $306.98. The plaintiff is directed to provide the defendant with proof of the value of all accounts held in his individual name as of the date of commencement within thirty (30) days of the date of this decision after trial and the parties shall equitably divide the aforementioned accounts within ten (10) days thereafter.
Any and all custodial accounts and UTMA accounts shall continue to be maintained for the benefit of the children, with the plaintiff as the custodian on each of the accounts. In addition, the plaintiff shall continue to maintain certain Disney stock for the children
Both parties shall be solely responsible for any debts held in their respective names. The Court declines to order the plaintiff to assume half of the defendant's MOHELA student loan debt given the plaintiff's testimony that he also assumed debt in his own name during the marriage in order to pay the carrying charges of the marital residence and the parties' living expenses. In addition, "a spouse is generally required to bear the obligation of repayment of the balance of a student loan taken out by that spouse during the course of the marriage where no benefit inured to the marriage" (Santamaria v Santamaria, 177 A.D.3d 802, 806 [2d Dept. 2019] [internal quotation marks omitted]). Here, although the defendant testified that she worked as a substitute teacher prior to earning a master's degree in childhood education, she did not proffer any evidence at trial demonstrating that her attainment of a master's degree enhanced her earning capacity (see Heydt-Benjamin v Heydt-Benjamin, 127 A.D.3d 814, 815 [2d Dept. 2015]).
"[P]ension and retirement benefits belonging to either spouse attributable to employment during the marriage constitute marital property subject to equitable distribution upon divorce" (McGrath v McGrath, 261 A.D.2d 369, 370 [2d Dept. 1999]). Although the plaintiff proposed that each party retain ownership of their respective pension and retirement accounts on the ground that they are equal, there is no evidence in the record reflecting the value of the plaintiff's accounts because that information was not provided during disclosure. Under these circumstances, the Court directs that the marital portion of the parties' respective pension and retirement accounts, between the date of marriage and the date of commencement of this action, be divided equally between the parties according to the Majauskas formula (see Majauskas v Majauskas, 61 N.Y.2d 481 [1984]), with any costs incurred in the preparation of a Qualified Domestic Relations Order or Domestic Relations Order to be shared equally between the parties.
Counsel for the parties are directed to obtain and submit a proposed Qualified Domestic Relations Order or Domestic Relations Order, whichever applicable, with notice of settlement, to the Court within 60 days of the date of this decision after trial. Any adverse tax consequences and penalties associated with an early withdrawal of funds from the retirement accounts by either party shall be borne entirely by that party.
With respect to the marital residence, the evidence adduced at trial demonstrated that it was purchased in November 2012, for the amount of $375,000 and the plaintiff paid the down payment on the marital residence, which, according to the defendant was 3% of the purchase price. Although the defendant testified that she contributed toward the payment of the mortgage, she acknowledged that the mortgage was paid from the plaintiff's bank account and the plaintiff was responsible for the major bills of the home. The evidence in the record indicated that the defendant made minimal financial contributions to the expenses of the marital residence, but paid for certain of the parties' living expenses. The evidence further demonstrated that the marital residence was titled in the plaintiff's name between the date of purchase through June 14, 2019, when title was transferred to the parties as husband and wife. A mortgage statement dated as of June 22, 2022, indicated that there was an outstanding principal balance of $293,202.10. It is undisputed that the plaintiff has been paying the mortgage and all other expenses related to the marital residence since the defendant vacated the home in August 2023. Under these circumstances and taking into consideration that the parties were married for 9 ½ years, the marital residence was purchased a few months prior to the marriage, the plaintiff paid the down payment, the plaintiff was the sole title owner of the marital residence between November 2012 and June 2019, the mortgage payments were paid from the plaintiff's bank account, and the divorce action was commenced two years later in July 2022, the defendant is awarded 30% of the equity in the marital residence, and the plaintiff is awarded 70%.
Prior to listing the marital residence for sale, the plaintiff shall have the right to purchase the defendant's interest in the marital residence in accordance with the percentages indicated herein. The parties shall endeavor to agree upon an appropriate value of the marital residence and if they cannot agree, the plaintiff shall retain Jane Moss Appraisals or another agreed-upon neutral real property appraiser to complete an appraisal - at a cost to be paid solely by the plaintiff - within thirty (30) days of this decision after trial. The valuation date to be used in this case is that of the first substantive date of trial, to wit, January 30, 2024 (see Kattan v Kattan, 202 A.D.3d 771, 773-774 [2d Dept. 2022]; Taverna v Taverna, 56 A.D.3d 461, 463 [2d Dept. 2008]; Ierardi v Ierardi, 151 A.D.2d 548, 549 [2d Dept. 1989]). The plaintiff shall have a period of thirty (30) days from receipt of the appraisal to elect to utilize his buyout option.
The trial was adjourned from August 2023 to January 2024, in order for the plaintiff to retain new counsel.
If the plaintiff does not avail himself of the option to purchase the defendant's interest in the marital residence, the marital residence shall be listed for sale within thirty (30) days thereafter with a licensed broker mutually agreed upon by the parties. If the parties cannot agree on a broker, each party shall select a broker, both of whom will select a third broker, who will list the marital residence for sale. The parties shall accept any offer within 5% of the asking price. If the marital residence does not sell at the asking price within 60 days, the parties shall adjust the asking price as recommended by their broker.
In addition, since it is undisputed that the plaintiff has been solely responsible for paying the mortgage and other carrying charges of the marital residence since the defendant vacated the home in August 2023, the plaintiff is entitled to a credit of 50% of the reduction in the mortgage principal from the defendant's share of the equity in the marital residence (see Lieberman-Massoni v Massoni, 215 A.D.3d 656, 661-662 [2d Dept. 2023]; Bari v Bari, 200 A.D.3d 835, 839-840 [2d Dept. 2021]; Hymowitz v Hymowitz, 119 A.D.3d 736, 742 [2d Dept. 2014]). Furthermore, based on the undisputed testimony that the plaintiff purchased the marital residence prior to the marriage using separate property toward the down payment, the plaintiff is awarded a separate property credit in the amount of the down payment (see Kattan v Kattan, 202 A.D.3d 771, 774 [2d Dept. 2022]; Vural v Vural, 130 A.D.3d 1459 [3d Dept. 2015]; c.f. Petkova v Radulovic, 163 A.D.3d 1014, 1015 [2d Dept. 2018]).
Each party shall retain any jewelry and personal property in his or her possession. The furniture in the marital residence shall be selected alternatively by the parties upon either the buyout of the defendant's interest or the sale of the home.
With respect to the 2018 Ford Explorer, there is no indication in the record that it was purchased by the plaintiff for the defendant as a gift but rather, as a family vehicle for the benefit of the parties and their children. The defendant testified that the 2018 Ford Explorer remains her only means of transportation with the children. No evidence was offered at trial regarding the value of the 2018 Ford Explorer, or the vehicle(s) in the plaintiff's possession. Under these circumstances, the Court directs that each party retain the vehicle in his or her possession and be responsible for the expenses associated with his or her vehicle (see Sawin v Sawin, 128 A.D.3d 663, 668 [2d Dept. 2015] ["(s)ince there was no evidence as to the value of the parties' three vehicles, this Court cannot say that the Supreme Court improvidently exercised its discretion in the manner in which it distributed those vehicles"]).
Counsel fees
In her closing statement, the defendant asserted that she incurred a total of approximately $105,000 in counsel fees and is entitled to an award in an amount not less than $70,000 based on the "negligent prosecution" of this matter, the plaintiff's obstructionist tactics which delayed these proceedings, and his willful failure to provide financial disclosure. The plaintiff requested that each party be responsible for their own legal fees, without any indication whatsoever as to the amount he has incurred.
NYSCEF Doc. No. 239 at 21
By statute, there is "a rebuttable presumption that counsel fees shall be awarded to the less monied spouse" (DRL § 237[a]). "In determining whether to award final counsel fees at the end of trial, a more detailed inquiry is warranted and the court must 'review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions'" (Duval v Duval, 144 A.D.3d 739, 743 [2d Dept. 2016], quoting DeCabrera v Cabrera-Rosete, 70 N.Y.2d 879, 881 [1987]). "The court may also consider 'whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation'" (Fredericks v Fredericks, 85 A.D.3d 1107, 1108 [2d Dept. 2011], quoting Prichep v Prichep, 52 A.D.3d 61, 64 [2d Dept. 2008]). "At that point, the court is in the best position to determine whether counsel fees should be charged to the moneyed spouse, or charged to the less moneyed spouse as an offset against the equitable distribution award ultimately received, or divided between the parties" (Duval v Duval, 144 A.D.3d 739, 743 [2d Dept. 2016]).
Here, it cannot be said that the defendant is indisputably the less monied spouse given that the parties' incomes are substantially the same. Nevertheless, the record amply supports an award of counsel fees in favor of the defendant. The defendant was forced to incur significant legal fees based on the wholly unreasonable positions undertaken by the plaintiff and his original counsel. As stated above, the conduct of the plaintiff's original counsel up until her discharge on the first scheduled day of trial lacked any semblance of professionalism and competence. The defendant was forced to respond to numerous letters filed by the plaintiff that were often unintelligible, the plaintiff failed to provide financial disclosure which caused unnecessary litigation, and the plaintiff and his original counsel refused to engage in any meaningful effort to reasonably resolve the matter without resorting to trial.
Under these circumstances, and considering the merits of the parties' respective positions, the financial circumstances of the parties, and the division of the parties' marital assets, the Court awards the defendant final counsel fees in the amount of $40,000. Such payment shall be made by the plaintiff to the defendant's attorney within sixty (60) days of service of notice of entry of a judgment of divorce.
All claims for relief not specifically addressed herein are denied.
Accordingly, it is hereby, ORDERED that the defendant is granted a divorce on the ground set forth in DRL § 170(7); and it is further, ORDERED that the defendant is awarded sole residential custody of the children, with a continuation of supervised visitation to the plaintiff; and it is further, ORDERED that the parties are awarded joint legal custody of the children, with the defendant having final decision-making authority for all major decisions including, but not limited to, education, medical/health, therapeutic, psychiatric, extracurricular activities, summer camp, religion, and tutoring; and it is further, ORDERED that consultation between the parties regarding a major decision shall be initiated by an email from one party to the other party. The subject line of the email shall be "Major Decision" and shall not be part of any other email chain. The initiating party shall set forth the details regarding the major decision(s) at issue and the initiating party's position in connection therewith. The party who receives the initiating email shall promptly respond in writing by email no later than 72 hours after it was sent by the initiating party and shall set forth his/her position regarding the major decision(s) at issue. If the initiating party is the defendant, and she does not receive a written response from the plaintiff within 72 hours, the plaintiff shall be deemed to have waived his right to consult with the defendant prior to the major decision being implemented. The defendant, who hereunder was awarded final decision-making authority, must notify the plaintiff in writing by email of the decision and its implementation, as well as any other relevant details. Neither party shall use this directive as a basis to send unnecessary and unproductive emails to the other for the purpose of harassing, alarming or annoying; and it is further, ORDERED that neither party shall disparage the other in the presence of the children or otherwise interfere with the children's relationship with the other parent by making demeaning and negative statements about that parent to the children; and it is further, ORDERED that the plaintiff shall pay child support to the defendant in the amount of $1,721.12 per month via the Support Collection Unit commencing on the seventh day of the first full month after the date of this decision after trial, to wit, May 7, 2024, and continuing each month thereafter until the children become emancipated; and it is further, ORDERED that the defendant is awarded retroactive child support in the total amount of $12,047.84, subject to any credits to which the plaintiff is entitled for all payments of child support made by him since September 1, 2023. Any amount of retroactive child support owed by the plaintiff to the defendant shall be paid within 60 days of the date of this decision after trial; and it is further, ORDERED that the parties shall share in the costs of statutory add-on expenses on a pro rata basis. The plaintiff shall be responsible for 46% of those expenses, and the defendant shall be responsible for 54% of those expenses. To the extent that the defendant incurs the expense of a Special Education Itinerant Teacher (SEIT) for either of the children, the parties are directed to share that cost in the same proportion set forth above. The parties are directed to pay their respective pro rata share of the aforementioned expenses within thirty (30) days of presentation of proof of payment; and it is further, ORDERED that the plaintiff shall continue to provide health insurance coverage for the children and shall maintain a life insurance policy in an amount not less than $500,000 for the benefit of the parties' children naming the defendant as trustee for the children until payment of child support is completed. The plaintiff shall provide proof of coverage within sixty (60) days of service of notice of entry of a judgment of divorce; and it is further
ORDERED that the parties shall each be entitled to claim both children as dependents in alternating years, with the defendant to have the exemptions in even-numbered years and the plaintiff to have them in odd-numbered years. The plaintiff shall be entitled to the tax deduction only if he is current on his child support obligations on the first day of the year for which the deduction is to be declared; and it is further, ORDERED that the parties are awarded a one-half share of the value of all bank accounts held in their individual names only as of the date of commencement of the action. The plaintiff is directed to provide the defendant with proof of the value of all accounts held in his individual name as of the date of commencement within thirty (30) days of the date of this decision after trial and the parties shall equitably divide the aforementioned accounts within ten (10) days thereafter; and it is further, ORDERED that any and all custodial accounts and UTMA accounts shall continue to be maintained for the benefit of the children, with the plaintiff as the custodian on each of the accounts; and it is further, ORDERED that the plaintiff shall continue to maintain certain Disney stock for the children; and it is further, ORDERED that both parties shall be solely responsible for any debts held in their respective names; and it is further, ORDERED that the marital portion of the parties' respective pension and retirement accounts between the date of marriage and the date of commencement of this action be divided equally between the parties according to the Majauskas formula, with any costs incurred in the preparation of a Qualified Domestic Relations order or Domestic Relations Order to be shared equally between the parties. Counsel for the defendant is directed to obtain and submit a proposed Qualified Domestic Relations order or Domestic Relations Order, whichever applicable, with notice of settlement, to the Court within 60 days of the date of this decision after trial; and it is further, ORDERED that the defendant is awarded 30% of the equity in the marital residence, and the plaintiff is awarded 70%; and it is further, ORDERED that the plaintiff shall have the right to purchase the defendant's interest in the marital residence in accordance with the percentages indicated herein. The parties shall endeavor to agree upon an appropriate value of the marital residence and if they cannot agree, the plaintiff shall retain Jane Moss Appraisals or another agreed-upon neutral real property appraiser to complete an appraisal - at a cost to be paid solely by the plaintiff - within thirty (30) days of this decision after trial. The valuation date to be used in this case is that of the first substantive date of trial, to wit, January 30, 2024. The plaintiff shall have a period of thirty (30) days from receipt of the appraisal to elect to utilize his buyout option; and it is further, ORDERED that if the plaintiff does not avail himself of the option to purchase the defendant's interest in the marital residence, the marital residence shall be listed for sale within thirty (30) days thereafter with a licensed broker mutually agreed upon by the parties. If the parties cannot agree on a broker, each party shall select a broker, both of whom will select a third broker, who will list the marital residence for sale. The parties shall accept any offer within 5% of the asking price. If the marital residence does not sell at the asking price within 60 days, the parties shall adjust the asking price as recommended by their broker; and it is further, ORDERED that the plaintiff shall receive a credit representing 50% of the reduction in the mortgage principal since September 2023, from the defendant's share of the equity in the marital residence; and it is further, ORDERED that the plaintiff is awarded a separate property credit in the amount of the down payment on the marital residence made by him prior to the marriage from the defendant's share of the equity in the marital residence; and it is further, ORDERED that each party shall retain any jewelry and personal property in his or her possession. The furniture in the marital residence shall be selected alternatively by the parties upon either the buyout of the defendant's interest or the sale of the home; and it is further, ORDERED that each party retain the vehicle in his or her possession and be responsible for the expenses associated with his or her vehicle; and it is further, ORDERED that the defendant is awarded final counsel fees in the amount of $40,000. Such payment shall be made by the plaintiff to the defendant's attorney within sixty (60) days of service of notice of entry of a judgment of divorce; and it is further, ORDERED that all other prayers for relief not specifically addressed herein are denied; and it is further, ORDERED that the defendant shall settle Findings of Fact and Conclusions of Law, a Judgment of Divorce, and all other documents necessary to allow the Court to enter Judgment in accordance with this Decision After Trial, on at least five (5) days' notice, within thirty-five (35) days of the date hereof. Failure to timely settle the Findings of Fact and Judgment of Divorce may result in this action being dismissed, or other appropriate sanctions.
The foregoing constitutes the decision and order of this Court.