Opinion
Index No. 64862/2021
02-06-2023
J.G., Plaintiff, v. B.G., Defendant.
The Kitson Law Firm, PLLC, Patricia G. Kitson, Esq., Joanne Cascione Indriolo, Esq., Attorneys for the plaintiff. Cohen Clair Lans Greifer Thorpe & Rottenstreich LLP, Mitchell P. Lieberman, Esq., Josephine Trovini, Esq., Attorneys for the defendant.
Unpublished Opinion
The Kitson Law Firm, PLLC, Patricia G. Kitson, Esq., Joanne Cascione Indriolo, Esq., Attorneys for the plaintiff.
Cohen Clair Lans Greifer Thorpe & Rottenstreich LLP, Mitchell P. Lieberman, Esq., Josephine Trovini, Esq., Attorneys for the defendant.
HON. ROBERT S. ONDROVIC, J.S.C.
The following papers were considered in connection with (1) the plaintiff's motion, inter alia, for an order appointing Michael R. McLaughlin, CFA, ASA, CVA of Sigma Valuation Consulting Inc. as the neutral financial evaluator and directing the defendant to pay 100% of the cost of the neutral financial evaluator, or, in the alternative, awarding the plaintiff expert fees in an amount not less than $25,000 to retain David L. Green CPA, ABV, CFF, CFE of KLG Business Valuators & Forensic Accountants, LLC; directing the defendant to comply with any and all discovery requests made by Mr. McLaughlin or, in the alternative, Mr. Green; and an award of pendente lite counsel fees in an amount not less than $50,000; and, (2) the defendant's motion, inter alia, for partial summary judgment declaring that the defendant's interests in Beam Partners, LLC and Neuberger Berman accounts bearing numbers ending in 5559 and 5560 to be defendant's separate property, and that the plaintiff has no interest in those assets.
PAPERS NUMBERED
Plaintiff's order to show cause, affidavit, affirmation, exhibits 1 - 15 1 - 18
Defendant's order to show cause, affidavit, affidavit, affirmation, exhibits A - J, memorandum of law 19 - 41
Defendant's affidavit in opposition, affidavit in opposition, affirmation in opposition, memorandum of law in opposition, exhibits A - R 42-63
Plaintiff's affidavit in opposition, affirmation in opposition, exhibits 1 - 11 64 - 76
Relevant Factual and Procedural Background
The parties were married on September 14, 1997, and have two children, now ages 21 and 19. In October 2021, the plaintiff commenced an action for divorce and ancillary relief. The defendant answered the complaint and asserted a counterclaim for divorce and ancillary relief. The parties subsequently stipulated to grounds for divorce.
The plaintiff's motion
In September 2022, the plaintiff moved by order to show cause for an order (1) appointing Michael R. McLaughlin, CFA, ASA, CVA of Sigma Valuation Consulting Inc. as the neutral financial evaluator; (2) directing the defendant to pay 100% of the cost of the neutral financial evaluator; or, in the alternative, (3) awarding the plaintiff expert fees in an amount not less than $25,000, with leave to seek additional fees, to retain David L. Green CPA, ABV, CFF, CFE of KLG Business Valuators & Forensic Accountants, LLC; (4) directing the defendant to comply with any and all discovery requests made by Mr. McLaughlin or, in the alternative, Mr. Green; and, (5) an award of pendente lite counsel fees in an amount not less than $50,000.
In an affidavit in support of the motion, the plaintiff avers that the parties were married for 25 years and it was agreed that after their eldest child was born, she would leave the workforce and stay home to be the primary caregiver. She states that the defendant holds a Master of Business Administration degree, and was a co-founder, vice-president and Chief Financial Officer ("CFO") of Alpine Capital Bank for 20 years. The plaintiff asserts that the defendant, without warning, quit his job in December 2019, and never "earnestly sought alternate employment." She notes that in April 2022, the defendant accepted a position as CFO of Connecticut Community Bank earning an annual base salary of $175,000, however, he quit four months later. She argues that it is necessary for the Court to appoint a neutral financial evaluator "to value the marital business interests and determine [the defendant's] cash flow and income stream from all sources for the purpose of determining spousal support and child support."
NYSCEF Doc. No. 57, ¶ 4.
id. at ¶ 5.
The plaintiff highlights that the defendant has failed to produce any documents related to G2 Investment Partners and the AEP entities. She states that although the defendant contends that his interest in Beam Partners, LLC (hereinafter Beam) constitutes his separate property, "as the managing member, the active appreciation of his interest in [Beam] is considered marital property and must be valued." The plaintiff asserts that Beam holds title to two accounts held at Neuberger Berman LLC (hereinafter Neuberger), and that records demonstrate that nearly all of the securities held in those accounts were purchased during the marriage. She also contends that a neutral financial evaluator is necessary to value Crystal Financial SBIC LP (hereinafter Crystal), of which the defendant is a limited partner, to perform an income stream analysis, and to reconcile an apparent discrepancy in the defendant's capital account for the year 2021. The plaintiff states that the defendant should be ordered to pay 100% of the neutral financial evaluator's fees given that he has approximately $2.5 million in assets under his control, whereas she works part-time at Athleta earning approximately $845 biweekly and has $5,597 in her individual checking and savings accounts. The plaintiff further argues that the defendant should be directed to pay interim counsel fees in the amount of $50,000, noting that she paid her attorneys $20,000 and has an outstanding balance of $42,124.78, and the defendant has paid his attorneys approximately $74,500 in fees.
id. at ¶ 13.
In a supporting affirmation, the plaintiff's attorney contends that a valuation of the defendant's business interests is necessary for the Court to equitably distribute the marital estate. She further asserts that even if the defendant's business interest in Beam, constitutes his separate property, the plaintiff may still be entitled to an equitable share of the appreciation in value.
In an affidavit, David L. Gresen avers that he is a certified public accountant and a member of KLG Business Valuators & Forensic Accountant, LLC (hereinafter KLG). Mr. Gresen asserts that he is being retained by the plaintiff to, among other things, determine the fair market value of the defendant's business interests, perform an income stream analysis of all sources of the defendant's income, and determine whether an in-kind division of the defendant's business interests is feasible. He asserts that he will require a retainer in the amount of $25,000 for his services.
The defendant's opposition
In opposition to the plaintiff's motion, the defendant submitted his own affidavit, an affidavit of his father, an attorney's affirmation and a memorandum of law. In his affidavit, the defendant avers that he is not a co-founder of Alpine Bank and has never owned any of its stock. He contends that the plaintiff is highly educated and was earning $40 per hour as a freelance editor, but stopped working shortly before their eldest child left for college. The defendant states that the plaintiff was fully involved in his decision to leave Alpine Bank in February 2019. He contends that after 1 ½ years of searching for full-time employment, in April 2022, he accepted a position as CFO at Connecticut Community Bank. According to the defendant, he stopped working within a few months when "it became apparent that [he] was simply being put in to fulfill a position on what appeared to be a temporary basis and then [he] was warned on more than one occasion that [he] would not be permitted to attend [these divorce] proceedings." He asserts that he has not been able to secure employment since then despite diligent efforts, yet continues to pay the plaintiff's credit card bills - which range from $3,000 to $6,000 per month - using separate property funds.
NYSCEF Doc. No. 112 at ¶ 6.
The defendant argues that the plaintiff failed to set forth a basis for the appointment of a neutral financial evaluator. He maintains that the values of the assets in question can be ascertained from account statements. The defendant notes that the parties' holdings in Pitsele Partners LLC (hereinafter Pitsele) consist only of certain accounts at Neuberger - as confirmed by his accountant - and that those assets constitute marital property and should be equally divided. With respect to G2 Investment Partners (hereinafter G2), the defendant asserts that he holds an "alphabet interest through G2 in Woodgreen Rocky Hill, LLC," has an "insignificant derivative interest of.757%," and has offered to divide that asset "equally upon distribution net of actual taxes" The defendant offers that he will be responsible for any claw backs for distributions made to date and the amount of any claw backs that exceed any future distributions. He contends that his interest in Crystal "is so insignificant that [he] actually offered at the outset of this proceeding to simply convey it to the Plaintiff," and is now "willing to share equally in the distributions net of any claw backs or actual taxes paid." The defendant insists that Beam is funded entirely by his father, he never actively managed Beam, and, although Beam is his separate property, he used "the meager income" generated by Beam toward the parties' living expenses during the marriage. The defendant states that A2J2, LLC was formed "for insurance purposes but it was never funded and never did business" and that any interest Beam has in other entities, including GG Alpine, constitutes his separate property. With respect to the plaintiff's request for an award of interim counsel fees, he states that he consented to the plaintiff's use of marital assets to pay those fees, but she has refused. The defendant notes that the sale of securities in Pitsele would provide sufficient funds for the plaintiff to pay counsel fees and any expert fees. He further highlights that the plaintiff voluntarily moved out of the marital residence knowing that her father, who has a net worth in excess of $20 million, would support her.
id. at ¶ 15(ii).
id. at ¶ 15(iii).
id. at ¶ 15(iv).
In his affidavit, the defendant's father describes each of the assets that the plaintiff claims require a valuation. He avers that he was a minority investor in Alpine Bank at its inception, the defendant was not a founder, co-founder, or investor in Alpine Bank at its inception, and Beam has an interest in GG Alpine, but the defendant does not maintain a direct interest. He states that he established Pitsele for the benefit of his children and grandchildren, Pitsele's only holdings are two Neuberger accounts, and the defendant maintains a 11.523% interest in Pitsele, while the plaintiff and the parties' children each maintain a 5.172% interest. The defendant's father noted that the total value of Pitsele is set forth in the account statements. He explains that he and a partner created G2, that G2 has many investments - some of which require sponsor approval - and that the defendant does not have an interest in G2, except his 12.5% alphabet interest in one of its holdings, Woodgreen Rocky Hill, LLP. The defendant's father states that Woodgreen Rocky Hill, LLP is a real estate project, the defendant's initial investment was $25,000, net distributions are made on a periodic basis by G2 to the individual alphabet interest holders, and the defendant's alphabet interest in G2 is not subject to transfer.
The defendant's father asserts that the defendant has a.078% interest in Crystal, the defendants' interest is not subject to transfer absent approval of the sponsor, Crystal's value and assets are deteriorating, and he does not anticipate any future distributions from Crystal "in any significant amount or for any significant period of time." The defendant's father reiterates that "[e]very purchase and sale of a security by Beam during the parties' marriage occurred at [his] direction and was with funds derived from [him] and never from [defendant]," the defendant was never a manager of Beam, and that "[t]here was a brief period of time where the accountants determined that [the defendant] needed to sign the return but that apparently was in error." He further notes that the original accounting firm for Beam "had a significant computer issue resulting in many of our initial documents being lost."
NYSCEF Doc. No. 113 at ¶ 12.
id. at ¶ ¶ 14 and 17.
Id. at ¶ 18.
In a memorandum of law, the defendant argues that the plaintiff's request for an award of interim counsel fees should be denied because the defendant has been unemployed since 2019, is using separate property to pay his own counsel fees, support, and college expenses, and there is no disparity in the parties' respective incomes and their access to financial resources. He argues that the plaintiff's request for the appointment of a neutral financial evaluator, or an award of expert fees should be denied on the grounds that Mr. Gresen's affidavit failed to, inter alia, "identify the assets to be valued, any facts regarding the structure of the assets or even indicate whether he was provided the discovery documentation regarding the assets." The defendant further argues that the value of the assets at issue is either "easily ascertainable, or a valuation is unnecessary and wasteful."
NYSCEF Doc. No. 115 at p. 7.
id. at p. 8.
The defendant's motion
In October 2022, the defendant moved by order to show cause for partial summary judgment declaring that the defendant's interests in BP LLC and Neuberger accounts bearing numbers ending in 5559 and 5560 to be defendant's separate property, and that the plaintiff has no interest in those assets.
In a supporting affidavit, the defendant avers that Beam Partners, LP was formed by his father four years prior to the marriage in 1993, as "an investment vehicle" and that his father "reconstituted [] Beam LP into Beam Partners LLC" in April 1996, one year prior to the marriage, following the death of his mother and brother in 1994. He insists that no marital funds were ever contributed to Beam and that all contributions since its formation were made by his father. The defendant asserts that he was never managing partner of Beam, has never actively managed Beam, and Beam has no employees and does not pay wages. He argues that his interest in Beam is his separate property and that any transactions or investments that occurred during the marriage did not transmute his separate property to marital property. The defendant states that a portion of Beams investments included Neuberger accounts ending 5950 and 5951. He notes that since "[his] sister was increasingly utilizing her share of the Neuberger account[s] to sustain her living expenses," in December 2010, he removed his share of those accounts and deposited those funds into two new Neuberger accounts titled in his name ending 5559 and 5560 (hereinafter the Neuberger accounts). The defendant contends that no marital funds were ever deposited into the Neuberger accounts, and that the source of the funds was separate property.
NYSCEF Doc. No. 77 at ¶ 5.
id. at ¶ 12.
In an affidavit, the defendant's father avers that he "funded every dime that has ever been invested in Beam from its inception until today," that he transferred the assets of Beam Partners, LP to Beam Partners LLC following the death of his wife and son, and that "tax returns filed on behalf of Beam Partners, LLC were signed by [the defendant] as 'managing member' when in fact he is not and never has been the managing member." The defendant's father states that the defendant was signing the tax returns as managing member "to avoid a potential problem since Beam maintains a life insurance policy on me with a significant value to the same." He further states that "[t]he only 'new money' that ever came into Beam since its inception and in particular during the course of the parties' marriage were funds that [he] advanced," that "[f]rom time-to-time, Beam would be required to make distributions," and, rather than liquidate securities to satisfy the distributions, he "made loans to the entity for the purpose of making the distribution." The defendant's father states that the loans were repaid either directly by Beam or he "would make gifts to [his] children who in turn would apply the gifts to Beam's indebtedness."
NYSCEF Doc. No. 78 at ¶¶ 2, 5.
id. at ¶ 5.
id. at ¶ 6.
id.
In a memorandum of law, the defendant argues that he made a prima facie showing that his interests in Beam and the Neuberger accounts constitute his separate property. He asserts that the Court should summarily reject the plaintiff's contention that she is entitled to an equitable share of the appreciation in value of his separate property since the evidence conclusively demonstrates that he never took an active role with respect to Beam.
The plaintiff's opposition
In an affidavit in opposition to the defendant's motion, the plaintiff submitted her own affidavit and an attorney affirmation. In her affidavit, the plaintiff argues that the defendant's claim that he had no involvement in Beam and the Neuberger accounts is not credible since "[h]e alone controlled every aspect of [their] family's finances." She contends that the defendant failed to submit any documents establishing that all funds contributed to Beam originated from the defendant's father or any documents substantiating loans made by the defendant's father to Beam. She notes that during the marriage, the defendant's father "would gift [the parties] money in the amount equal to the tax free limit allowed by the IRS," and she is unaware whether the defendant invested that money in Beam or used that money to "repay" the defendant's father for any loans he may have made. The plaintiff contends that while she was the primary homemaker and caregiver, the defendant successfully pursued a career, managed the parties' investments, and "grew the [Neuberger] account xxx5559 from $359,422.08 in December 2019 to $1,266,346.66 in December 2021 and grew the [Neuberger] account xxx5560 from $288,619.17 in December 2010 to $935,774.12 in December 2021."
NYSCEF Doc. No. 134 at ¶ 3.
id. at ¶ 6.
id. at ¶ 9.
In an affirmation in opposition, the plaintiff's attorney asserts that the affidavits of the defendant and his father are self-serving and fail to demonstrate as a matter of law that the defendant was never actively involved in the management of Beam, and that no marital funds were intermingled with assets titled to Beam and funds held in the Neuberger accounts. She emphasizes that the defendant failed to produce any documents related to Beam for the period between September 1997 and December 2001, and January 2011 through the present. The plaintiff's attorney also notes that in March 1997 - six months prior to the marriage - the defendant submitted a statement of financial condition wherein he indicated that the value of his interest in Beam was $130,000. She argues that the plaintiff is entitled to the appreciation in value of that interest. The plaintiff's attorney further emphasizes that the parties' joint income tax returns and schedule K-1s for the period between 2016 and 2020 demonstrate that the defendant contributed more than $192,000 to Beam. She also highlights that "[a]ll realized gains, interest, and dividends generated from the [Neuberger] accounts titled to defendant were reported on the parties' jointly filed income tax returns" and "all income tax attributable to defendant's investment earnings were paid for by the parties."
id. at 8.
Analysis
"Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property" (Parkoff v Parkoff, 195 A.D.3d 936, 941 [2d Dept. 2021] [internal quotation marks omitted]; see Spencer-Forrest v Forrest, 159 A.D.3d 762, 763 [2d Dept. 2018]). "However, where separate property has been commingled with marital property there is a presumption that the commingled funds constitute marital property" (Sinnott v Sinnott, 194 A.D.3d 868, 871 [2d Dept. 2021]). "A party may overcome the presumption 'by presenting sufficient evidence that the source of the funds was separate property" (Palazolo v Palazolo, 200 A.D.3d 700, 701 [2d Dept. 2021]; see Overton v Overton, 118 A.D.3d 858, 858 [2d Dept. 2014]).
"Under the equitable distribution statute, separate property is defined to include an increase in value of separate property, except to the extent that such appreciation is due in part to the contributions of the other spouse" (Shvalb v Rubinshtein, 204 A.D.3d 1059, 1061 [2d Dept. 2022]; see Domestic Relations Law § 236[B][1][d][3]). Thus, "[w]here separate property has appreciated as a result of the time and efforts of the titled spouse, and the nontitled spouse has assisted in these efforts, either directly or indirectly, then the appreciation is subject to distribution" (Brown v Brown, 147 A.D.3d 896, 897 [2d Dept 2017]; see Hartog v Hartog, 85 N.Y.2d 36, 46 [1995]). "For a spouse to be entitled to a share of the appreciation in the value of the other spouse's separate property, he or she must demonstrate the manner in which his or her contributions resulted in the increase in value and the amount of the increase which was attributable to his or her efforts" (Brown v Brown, 147 A.D.3d at 897; see Domestic Relations Law § 236[B][1][d][3]; Hartog v Hartog, 85 N.Y.2d at 48). "While there are circumstances under which 'appreciation should, to the extent it was produced by efforts of the titled spouse, be considered a product of the marital partnership and hence, marital property,' the appreciation remains separate property if it resulted purely from market forces, as opposed to the titled spouse's efforts" (Zaretsky v Zaretsky, 66 A.D.3d 885, 888 [2d Dept. 2009], quoting Price v Price, 69 N.Y.2d 8, 18 [1986]; see Nadasi v Nadel-Nadasi, 153 A.D.3d 1346, 1349 [2d Dept. 2017]).
Here, in support of his motion, the defendant made a prima facie showing that his interest in Beam is his separate property. The uncontroverted evidence demonstrates that Beam Partners L.P. was formed in March 1993, more than four years prior to the parties' marriage in September 1997; Beam was formed in April 1996; and Beam Partners L.P. merged with Beam in May 1996, more than one year prior to the marriage. The amended certificate of limited partnership lists the defendant's father as the general partner and the defendant's father signed the certificate of merger in his capacity as manager of Beam. The defendant's father avers in his affidavit that he is the sole source of all funds that have ever been invested in Beam since its inception, the defendant has never been the managing member of Beam, and that "[e]very purchase and sale of a security by Beam during the parties' marriage occurred at [his] direction" The defendant's father also avers that any loans that he made to Beam for the purpose of satisfying distributions were repaid to him either directly by Beam or he "would make gifts to [his] children who in turn would apply the gifts to Beam's indebtedness." The defendant similarly avers in his affidavit that he was never the managing member of Beam, no marital funds were ever contributed to Beam, his father would arrange for gifts to be made to him and his sister, which were used to forgive loans made by his father to Beam, Beam has never required any active involvement from either him or his sister, and his father, alone, manages Beam's investments.
id. at ¶ ¶ 14 and 17.
id.
In opposition, the plaintiff raised a triable issue of fact as to whether the defendant, during the marriage, engaged in active efforts with respect to Beam such that the plaintiff would be entitled to a share of the appreciation in the value of the defendant's separate property interest in that asset. The claim of the defendant and his father that the defendant has never been the managing member of Beam is contradicted by the fact that certain tax returns filed on behalf of Beam were signed by the defendant as the managing member. The assertions of the defendant and his father that the defendant signed those tax returns in that capacity because "our tax team [] wanted to avoid what they perceived as a potential problem" is insufficient to eliminate all triable issues of fact. In addition, a triable issue of fact exists as to whether all of the funds contributed by the defendant to Beam between 2016 and 2020 were monies that had been gifted to him by his father for the purpose of repaying the loans made by his father to Beam. In support of his motion, the defendant submitted a letter dated January 22, 2020, from his father to an accountant as evidence that he and his sister each received a gift from their father in the amount of $142,075 to be applied "against [the defendant's father's] loan to Beam." However, according to the plaintiff, she was told by the defendant that his father had made "generous monetary gifts" to the parties during the marriage in an amount equal to the maximum annual exclusion for gift tax purposes and it is unclear whether the defendant "invested [their] gifts in Beam or used [their] gifts to 'repay' [her] father-in-law for any 'loans' he may have made." Accordingly, those branches of the defendant's motion which are for partial summary judgment declaring that his interest in Beam is his separate property and that the plaintiff has no interest in Beam are denied.
NYSCEF Doc. No. 78 at ¶ 5.
NYSCEF Doc. No. 133.
NYSCEF Doc. No. 134 at ¶6.
With respect to the Neuberger accounts, since triable issues of fact exist as to whether the defendant's business interest in Beam is his separate property, and the source of the funds in the Neuberger accounts was the defendant's alleged separate property interest in the Neuberger accounts ending 5950 and 5951, which, according to the defendant, are Beam's only liquid investments, the Court must also deny those branches of the defendant's motion which are for partial summary judgment declaring that his interest in the Neuberger accounts are his separate property and that the plaintiff has no interest in the Neuberger accounts. It bears noting, however, that the record contains no evidence that after the Neuberger accounts were opened by the defendant in December 2010, that any marital funds were deposited or commingled with the monies in the Neuberger accounts. In addition, the fact that the gains, interest, and dividends were reported on the parties' joint tax returns does not "transmute the separate property to marital property" (see Miszko v Miszko, 163 A.D.3d 1204, 1206 [3d Dept. 2018] [wife's separate property was not transmuted to marital property simply because rental income and expenses related to that property were reported on parties' joint tax return]; see also Palazolo v Palazolo, 200 A.D.3d 700, 701 [2d Dept. 2021] ["use of interest and dividends accrued on those shares for marital purposes did not transmute the shares themselves into marital property"]). Furthermore, if any marital funds were, in fact, used to pay the income taxes attributable to the Neuberger accounts, the plaintiff, upon proper proof, may be entitled to a credit for her one-half share of the taxes paid (see e.g. Patete v Rodriguez, 109 A.D.3d 595, 598 [2d Dept. 2013]).
With respect to the plaintiff's motion, the Court rejects the plaintiff's contention that the defendant is estopped from asserting that a valuation of his business interests is unnecessary simply because he indicated in his statement of net worth that the value of his interests in Pitsele, Beam, Crystal and G2 are "TBD." In any event, the Court grants that branch of the plaintiff's motion which is for the appointment of a neutral financial evaluator to the extent of appointing Gerald A. DeFeo as the neutral financial evaluator and, for the reasons set forth below, directing that the defendant pay 70% of Mr. DeFeo's costs, and the plaintiff to pay the remaining 30%, subject to reallocation. Although the defendant and his father are intimately familiar with the defendant's various business interests and the purported value of those interests, "'[b]road pretrial disclosure enabling both spouses to obtain necessary information regarding the value and nature of the marital assets is deemed critical if the trial court is to properly distribute the marital assets'" (Rodolico v Rodolico, 109 A.D.3d 809, quoting Goldsmith v Goldsmith, 184 A.D.2d 619, 620 [2d Dept. 1992]; see Culen v Culen, 157 A.D.3d 930, 933 [2d Dept 2018]). In addition, although the defendant and his father maintain that they have been forthcoming about the nature and value of the defendant's business interests and insist that the appointment of a neutral evaluator (or retention of an expert) is unnecessary and a waste of marital assets, at this stage of the litigation, it would be inappropriate for the Court, and unfair to require the plaintiff, to simply accept the statements made in the affidavits of the defendant and his father regarding the defendant's business interests at face value. Nevertheless, in the event that the neutral financial evaluator ultimately substantiates the assertions of the defendant and his father with respect to the defendant's business interests, the Court may, in its discretion, consider that factor in determining any future request for reallocation of fees.
NYSCEF Doc. No. 14 at pp. 13 and 24.
"An award of interim counsel fees ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse" (Witter v Daire, 81 A.D.3d 719, 719 [2d Dept. 2011]). There is a statutory "rebuttable presumption that counsel fees should be awarded to the less monied spouse" (DRL § 237[a]; see DiNapoli v DiNapoli, 200 A.D.3d 1027, 2031 [2d Dept. 2021]). "The decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court" (Turisse v Turisse, 194 A.D.3d 1090, 1093 [2d Dept. 2021] [internal quotation marks omitted]). "In exercising that discretion, the court must consider the financial circumstances of the parties and the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has delayed the proceedings or engaged in unnecessary litigation" (Piccininni v Piccininni, 176 A.D.3d 880, 881 [2d Dept. 2019]).
Here, the plaintiff was the primary homemaker and caregiver for the parties' children during the marriage and is currently employed as a sales associate at Athleta earning an hourly rate of $14.62. With the exception of a four-month stint of employment with Connecticut Community Bank, where the defendant was earning an annual base salary of $175,000, the defendant has been unemployed since 2019. Prior thereto, the defendant had been employed at Alpine Bank for 20 years and held the title of CFO when his employment ended. Although the plaintiff maintains that the defendant abruptly and unilaterally quit his job at Alpine Bank, the defendant insists that it was a joint decision followed by many discussions between the parties regarding his employment and the toll it was taking on him and their marriage. The plaintiff asserts that she borrowed $20,000 from her father to pay a portion of her counsel fees and owes an outstanding balance of approximately $42,124.78. She notes that the parties divided the remaining balance in their joint HSBC account and that she has been borrowing $4,000 per month from her father to pay her living expenses. The defendant contends that his counsel fees to date are $87,100 and were paid using a loan in the amount of $50,000 and invading his separate property funds held in the Neuberger accounts. He further notes that the plaintiff voluntarily left the marital residence in May 2021 and is supported by her father, who purportedly has a net worth in excess of $20 million.
Under these circumstances, where neither party is earning significant income, if any, from employment, yet the defendant has access to significant financial resources consisting of his alleged separate property, the Court awards the plaintiff $50,000 in interim counsel fees, to be paid by the defendant to the plaintiff's counsel within 30 days of the date of this decision and order, subject to reallocation at the conclusion of trial. Given the limited post-commencement earnings of both parties, they may be forced to access marital funds to pay their respective counsel fees should this case proceed to trial.
Accordingly, it is, ORDERED that the branch of the plaintiff's motion which is for an order appointing a neutral financial evaluator is granted to the extent of appointing Gerald A. DeFeo as the neutral financial evaluator; and it is further, ORDERED that the branch of the plaintiff's motion which is for an order directing that the defendant pay 100% of the cost of the neutral financial evaluator is granted to the extent that the defendant is directed to pay 70% of that cost, and the plaintiff is directed to pay the remaining 30%, subject to reallocation; and it is further, ORDERED that the branch of the plaintiff's motion which is for an order directing the defendant to comply with any and all discovery requests made by the neutral financial evaluator is granted; and it is further, ORDERED that the defendant's motion is denied; and it is further, ORDERED that all other relief requested and not decided herein is denied.