Opinion
9510/08.
Decided August 31, 2010.
The parties were married on April 12, 1997. There are three children of the marriage ages 9, 7, and 4. The children live with both the husband and wife in the marital residence. The wife is 40 years old and currently unemployed. The husband is a 40 year old dentist.
I. EQUITABLE DISTRIBUTION
The Court is mandated pursuant to Domestic Relations Law § 236B(5)(d) to consider 13 factors in making its decision as to the equitable distribution of the marital property.
1) Income and Property:
The plaintiff is employed as a dentist. He owns a practice in Rockland County and has a 50% interest in a New York City practice. For the years 2007 through 2009, the plaintiff's income was $359,000.00, $358,000.00 and $236,000.00 respectively. However, the plaintiff claims that his 2008 income was inflated due to his non-typical performance of three full mouth reconstructions for which he received $101,000.00.
2) Duration of the marriage and age and health of the parties:
The parties were married in 1997. Both parties appear to be in good health.
3) Need of custodial parent to occupy or own the marital residence:
Courts generally favor that the custodial parent retain exclusive possession of the marital home until the children reach majority. See Stolow v. Stolow, 152 AD2d 559 (2nd Dep't 1989). However, the plaintiff, during the course of the trial, "establish[ed] that he was in immediate need of the proceeds of the sale of the former marital residence, that comparable housing was available to the [plaintiff] in the same area at a lower cost, or that the parties were financially incapable of maintaining the residence. See Mazzone v. Mazzone, 290 AD2d 495 (2nd Dep't 2002).
While there will be an award of maintenance and child support in this matter, the defendant will have substantial difficulty maintaining the residence. Stolow v. Stolow, 152 AD2d 559 (2nd Dep't 1989). There is an outstanding mortgage and HELOC on the residence. Additionally, there are substantial utilities and tax burdens, as well as physical upkeep of the premises. It was adduced at trial that the annual cost of maintaining the premises would exceed $70,000.00. In addition, the defendant will have other living expenses unrelated to the home.
4) The loss of inheritance and pension rights:
Each party will receive an equal share of pension and retirement benefits.
5) An award of maintenance:
The defendant is entitled to an award of maintenance which will be discussed separately herein.
6) Direct and indirect contributions:
The plaintiff is the primary financial contributor to the marriage, often earning in excess of $300,000.00 per year. The defendant has made only modest financial contributions during the marriage. During the summer she works at the children's day camp earning in kind $12,000.00 to defray the cost of the camp.
Throughout the marriage, the defendant has been the primary care giver to the parties' children.
7) Liquid or non-liquid character of the property:
Other than the bank and brokerage accounts, the parties assets are non-liquid. However, the parties will be required to sell the marital residence.
8) Future financial circumstances of the parties:
The husband will continue to work as a dentist and earn a substantial income. The wife will still be the primary care giver for the young children, thereby limiting her earning potential in the short term. However, the wife is a college graduate who, in the past, worked and earned a substantial salary.
Additionally, the wife has studied to become a personal trainer. However, she testified that the income stream was unstable and was offset in large part by the necessity to obtain child care to enable her to earn this modest income.
The wife testified that she plans to attend graduate school to become a registered dietician. The required course work will take approximately three years and require approximately $55,000.00 in tuition. Upon completion, she estimates that she could earn approximately $55,000.00 per year in that field. Her request for maintenance is based in part on her educational expenses.
9) The difficulty of valuing marital assets:
The parties have no assets for which the value is difficult to obtain. Appraisals were conducted to ascertain the value of the dental practices and the marital home. Substantial testimony was adduced at trial concerning the value of the dental practices.
10) The tax consequences to each party:
Maintenance payments will be deductible by the plaintiff, and taxable income to the defendant. Child support payments to the defendant will not be deductible by the defendant or taxable to the plaintiff. There do not appear to be any other significant tax consequences to either party from any transaction contemplated by this decision.
11) The wasteful dissipation of assets:
There has been no dissipation of assets. The plaintiff has complained of the defendant's wild spending during the marriage and during the course of the litigation. However, the spending, while substantial, continued in accordance with a previously established luxurious lifestyle.
12) Transfer in contemplation of action:
With respect to the Fidelity Investment Account, there is no evidence that the defendant wastefully dissipated this asset in contemplation of the litigation. The evidence demonstrated that the withdrawals were made for legitimate purposes benefitting both parties.
13) The loss of health insurance benefits upon termination of the marriage:
The defendant will lose her health insurance upon dissolution of the marriage. She will be required to purchase her own insurance.
14) Any other factor:
There are no other factors the Court finds to be just and proper.
Marital Property and Separate Property
Marital property is defined in Domestic Relations Law Section 236 B(1)(c) as "all property acquired by either or both spouses during the marriage . . .".
Separate property is: "Property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse . . .". (Domestic Relations Law Section 236 B(1)(d)). Utilizing these definitions and the evidence adduced at trial the following identifies and classifies the property of the husband and wife herein.
Based upon the foregoing, the following items are classified as marital property:
a) Marital Home and contents
The marital home, located in Suffern, NY, was acquired by the parties subsequent to their marriage. The current appraised value of the home, as calculated by the neutral appraiser is $915,000.00.
The plaintiff is claiming a credit of $324,864.00 for funds gifted to him by his father to use in the purchase of the home. The defendant does not dispute the fact of the gift, but claims that the gift became co-mingled with marital property and thus became marital property.
The law is clear that the defendant is entitled to a credit for separate property used to acquire marital property. Post v. Post , 68 AD3d 741 (2nd Dep't 2009). This is true despite the commingling of separate and marital property. Id. See also Coffey v. Coffey, 119 AD2d 620 (2nd Dep't 1986).
Accordingly, upon the sale of the property, plaintiff is entitled to a credit of $324,864.00 of the net proceeds of the sale. Additionally, the plaintiff shall receive a dollar for dollar credit for the amount of reduction in the principal balance on the mortgage since the commencement of the action. The remainder of the proceeds will be distributed equally.
As a matter of discretion, this Court will Order a sale of the house. Courts generally favor that the custodial parent retain exclusive possession of the marital home until the children reach majority. See Stolow v. Stolow, 152 AD2d 559 (2nd Dep't 1989). However, the plaintiff, during the course of the trial, "establish[ed] that he was in immediate need of the proceeds of the sale of the former marital residence, that comparable housing was available to the [plaintiff] in the same area at a lower cost, or that the parties were financially incapable of maintaining the residence. See Mazzone v. Mazzone, 290 AD2d 495 (2nd Dep't 2002).
While there will be an award of maintenance and child support in this matter, the defendant will have substantial difficulty maintaining the residence. Stolow v. Stolow, 152 AD2d 559 (2nd Dep't 1989). There is an outstanding mortgage and HELOC on the residence. Additionally, there are substantial utilities and tax burdens, as well as physical upkeep of the premises. It was adduced at trial that the annual cost of maintaining the premises would exceed $70,000.00. In addition, the defendant will have other living expenses unrelated to the home.
Such maintenance costs are "wastefully extravagant." Id. Other than the maintenance and child support, the defendant has no other income. As there is substantial equity in the property and great expense in maintaining it, a ale is appropriate. See also Ricciardi v. Ricciardi, 173 AD2d 807 (2nd Dep't 1991); Lauer v. Lauer, 145 AD2d 470 (2nd Dep't 1988). The defendant will be able to use the substantial distributive award to obtain a more than adequate residence in the area of the marital home. Accordingly, this Court will hold as a matter of discretion, that the home be listed for sale with a realtor agreeable to each side on or before January 1, 2013. If the parties are unable to agree on a realtor, the Court will determine the listing agent.
After consultation with the listing agent, the house shall be listed for sale at a price agreeable to each side. If the parties cannot agree on an initial listing price, the parties shall voluntarily engage a neutral real estate appraiser or seek the Court's intervention for appointment of such an appraiser. The house shall then be listed at the price determined by the appraiser. The parties shall accept any bona fide offer within $20,000.00 of the listing price.
If no bona fide offer is received at the listing price or within $20,000.00 of the listing price within 60 days, the listing price shall be reduced by $25,000.00. Thereafter, if no bona fide offer is received at the new listing price or within $20,000.00 of the new listing price within 60 days, the listing price shall again be reduced by $25,000.00. Thereafter, if no bona fide offer is received at the new listing price or within $20,000.00 of the new listing price within 60 days, the listing price shall again be reduced by $25,000.00.
b) Commercial Real Estate and Rockland Dental Practice
In 2001 the plaintiff purchased a dental practice including a building located in Rockland County for $300,000.00.As part of the transaction, the plaintiff borrowed approximately $225,000.00 from his father. The remaining funds used to purchase the practice were marital funds. At this time, the defendant still owes $135.000.00 to his father. $90,000.00 in marital funds were used to pay down the loan.
As of December 31, 2007, the practice had an appraised value of $290,000.00. The building had an appraised value of approximately $240,000.00. Together, the practice and building are valued at $530,000.00. After factoring the $135,000.00 still owed the plaintiff's father, the practice has $395,000.00 in equity. "Domestic Relations Law § 236(B)(1)(d)(3) expressly provides that appreciation in separate property remains separate property, "except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse" (emphasis added). Moreover, Domestic Relations Law § 236(B)(5)(d)(6) explicitly recognizes that indirect contributions of the nontitled spouse (e.g., services as spouse, parent and homemaker, and contributions to the other party's career or career potential) are relevant in the equitable disposition calculations just as direct contributions are. Thus, to the extent that the appreciated value of separate property is at all "aided or facilitated" by the nontitled spouse's direct or indirect efforts, that part of the appreciation is marital property subject to equitable distribution." Hartog v. Hartog, 85 NY2d 36 (1985).
Plaintiff correctly notes, that an asset, such as a professional practice, is not necessarily subject to equal distribution. See e.g., Chalif v. Chalif, 298 AD2d 348 (2nd Dep't 2002). In this case, the practice was acquired using marital funds and a loan. Marital funds were used to pay down the loan. Other than the contribution of marital funds, the wife had little direct involvement in the practice other than a short stint as an employee. Her limited participation did little to enhance the value of the property.
Accordingly, the wife shall be entitled to a 35% share of the equity in the real estate in practice. Id. Under the facts of this case, her equitable share would be $138,250.00. "[T]he award of 35% takes into account the limits of the defendant's involvement with the practice, while not ignoring the direct and indirect contributions that she did make." Griggs v. Griggs , 44 AD3d 710 (2nd Dep't 2007).
c) Appreciation of New York City Dental Practice
The plaintiff' 50% interest in the New York City dental practice was gifted to the plaintiff in 2001. At the time of the gift, the 50% interest had a value of $310,000.00. There is no dispute that the gift constitutes separate property.
As of December 31, 2007, the 50% interest had appreciated in the amount of $129,000.00. Unlike, the New City dental practice, no marital funds were expended by the plaintiff in obtaining his interest. The defendant had no direct involvement in the practice. See Harris v. Harris, 242 AD2d 558 (2nd Dep't 1997). Based upon the defendant's limited contribution, she is entitled to 15% of the appreciation or $19,350.00.
d) Bank accounts, bonds and investments
The New York State municipal bonds, JP Morgan Chase joint accounts, Fidelity investment account, First Manhattan Portfolio, 529 Savings Accounts are marital property to be divided equally. However, the plaintiff is to receive a credit of $25,430.33 for his pre-marital contribution to the First Manhattan Portfolio.
With respect to the Fidelity Investment Account, the value on the date of commencement, to wit, $18,263.58, shall be divided equally. There is no evidence that the defendant wastefully dissipated this asset in contemplation of the litigation. The evidence demonstrated that the withdrawals were made for legitimate purposes benefitting both parties. Further, after the date of commencement, the husband funded this account with separate property.
The parties are to share equally in the tax consequences, as well as in any fees related to the liquidation of the accounts.
e) Automobiles
The husband shall retain the 2003 BMW and the 2006 Acura MDX. Based upon the applicable "Blue Book" values, the wife shall be entitled to a credit of $13,000.00. The wife shall enjoy continued use of the Cadillac Escalade. The 1987 Mustang is the husband's separate property. Each party shall be responsible for making all lease or finance payments and insurance payments for their respective automobiles.
f) IRAs and other retirement accounts
The parties shall share equally in all IRA accounts and any other retirement accounts, except the husband's traditional IRA. The husband's traditional IRA was completely funded prior to the marriage and is therefore separate property. The husband is entitled to a credit of $7,500.00 with respect to the funds withdrawn by the wife from her IRA during the litigation.
g) Jewelry
"[G]ifts from one spouse to the other are marital property subject to equitable distribution. Accordingly, the "gifts" of [jewelry], made from one spouse to the other during the course of the marriage, were marital property subject to equitable distribution." Chase v. Chase, 208 AD2d 883 (2nd Dep't 1994). The plaintiff is "entitled to a . . . credit representing half the value of jewelry he gave to [defendant] during the marriage." Milnarik v. Milnarik , 23 AD3d 960 (3rd Dep't 2005). See also Ferina v. Ferina, 286 AD2d 472 (2nd Dep't 2001); Foppiano v. Foppiano, 166 AD2d 550 (2nd Dep't 1990). While the plaintiff has established that he is entitled to a credit, he has not established that he is entitled to the return of the diamond he gifted to his wife.
The evidence before the Court established that the appraised value of the jewelry subject to distribution is approximately $29,000.00. Accordingly, the plaintiff is entitled to a credit of $14,500.00.
h) Credit card debt
At the time of the commencement of the action, there was a net balance of $9,288.42. Said debt is to be divided equally. The defendant is therefore entitled to a credit of $4644.21.
The remainder of the debt incurred after the commencement of the action belongs solely to the defendant. While the defendant may claim that the expenses were necessary, the pendente lite Order provided the wife with substantial maintenance and child support necessary to meet reasonable expenses.
i) Furniture and household goods
The wife shall retain all bedroom furniture, living room furniture and kitchen items. The husband shall retain the home entertainment system. The parties shall retain their own clothing. All other furniture shall be divided by the parties. Should they not agree on the division of the remaining property, such property shall be sold and the proceeds divided equally. The husband shall retain all ATVs and snowmobiles.
II. MAINTENANCE
The court has considered the following factors as enumerated in Domestic Relations Law § 236 F(6)(a):
1. The income and property of the respective parties including marital property distributed
The plaintiff is employed as a dentist. He owns a practice in Rockland County and has a 50% interest in a New York City practice. The plaintiff's income for the years 2007 through 2009, the plaintiff's income was $359,000.00, $358,000.00 and $236,000.00 respectively. However, the plaintiff claims that his 2008 income was inflated due to his non-typical performance of three full mouth reconstructions for which he received $101,000.00.
The defendant is currently employed at a summer day camp. As a result of her employment, and in lieu of a salary, two of the parties' children attend the camp for free, a savings of approximately $12,000.00. The wife has studied to be a personal trainer but has never earned significant or stable income in that field.
Her last full time employment was in 2001 when she earned approximately $70,000.00. She was employed in the print media advertising field. She believes her experience in print media is less valuable now due to technological innovations that have reduced the print media market share in the advertising industry.
2. The duration of the marriage and the age and health of both parties —
The parties were married in 1997. Both parties are forty years old and appear to be in good health.
3. The present and future earning capacity of both parties —
The husband contends that, due to the economy, his income will continue to decline. However, there is insufficient evidence of a downward trend to predict, with any certainty, the depth or duration of the decline in income. In fact the appraiser, Douglas Sosnowski, testified that more dentists are retiring than graduating and that the dental industry is less affected by a decline in the economy because third party insurance payments diminish volatility. Mr. Sosnowski utilized the factors set forth in Revenue Ruling 5960 pertinent to practice valuation. He discussed the projected industry growth rates in arriving at fair market valuations of ownership interests in the New York City and Rockland County dental practices. It appears that the industry is somewhat recession proof as the projected annual growth rate in revenue earnings is in excess of five percent annually for the next five years and somewhat higher for the New York City practice.
He also pointed out that a number of itemized personal deductions were included as business deductions which had the effect of lowering the reported business income. He deflected the suggestion that the large cash balances reflected undeposited receipts and found no evidence of any under-reporting of income.
The wife currently works only at the summer camp. Her short term ability to be employed full time is hampered by her responsibility as primary care giver for the young children. However, due to her education and her studies to become a personal trainer, there does exist a possibility of part time employment.
Further, as the children get older, the wife should be able to obtain full time employment. The wife testified that she plans to attend graduate school to become a registered dietician. The required course work will take approximately three years and require approximately $55,000.00 in tuition. Upon completion, she estimates that she could earn approximately $55,000.00 per year in that field.
4. The ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefore —
Due to her education and her studies to become a personal trainer, there does exist a possibility that the wife could obtain part time employment. Further, as the children get older, the wife should be able to obtain full time employment.
5. Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment or career opportunities —
The wife left the work force to raise the parties children. However, there is no evidence of any long term reduced earning capacity.
6. The presence of children of the marriage in the respective homes of the parties —
The parties' children will reside with the wife.
7. The tax consequences to each party —
Maintenance payments will be deductible to the plaintiff, and taxable income to the defendant.
8. Contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party — During the bulk of the marriage, the husband was the primary wage earner. In the first few years of the marriage, the wife made financial contributions based upon her earnings in the advertising field. Subsequently, the wife was the primary care giver for the parties' children enabling the husband to work full time.
9. Wasteful dissipation of marital property —
As set forth above, there is no evidence of wasteful dissipation of any marital asset.
10. Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration —
There is no evidence of any transfer or encumberance made in contemplation of the marital action.
11. The loss of health insurance benefits upon termination of the marriage:
The defendant will lose her health insurance upon dissolution of the marriage. She will be required to purchase her own insurance.
12. Any other factor(s) —
The parties have enjoyed a comfortable lifestyle during their marriage.
Clearly there is a disparity in the current income of the parties. Even more importantly, there is large disparity in the parties' future earning potential. The wife will not be able to rejoin the work force full time unless she incurs substantial child care expenses. Even upon being employed full time, it is unlikely that the wife's earnings will approach those of the husband.
"The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting." Abrams v. Abrams , 57 AD3d 809 (2nd Dep't 2008). A tiered maintenance schedule set forth below will allow her to become financially independent. See Kret v. Kret, 222 AD2d 412 (2nd Dep't 1995).
Accordingly, the defendant shall receive $3500.00 monthly from the plaintiff as maintenance. Said payments shall be made for three years following the entry of the judgment of divorce. During the next four years the wife shall receive $3,000.00 monthly. At that time the youngest child will be thirteen years old and the oldest will be eighteen years old. While certainly not emancipated, the maturity of the children should allow the defendant to be employed full time.
III. CHILD SUPPORT
DRL § 240(1-b) (the "CSSA") governs child support in a matrimonial action. This Court, pursuant to Domestic Relations Law § 240(1-b), has considered the calculations delineated in Domestic Relations Law § 240(1-b)(c) as well as the factors set forth in Domestic Relations Law § 240(1-b)(f) which permit a deviation from the calculations set forth in Domestic Relations Law § 240(1-b)(3).
The plaintiff's income for the years 2007 through 2009, the plaintiff's income was $359,000.00, $358,000.00 and $236,000.00 respectively. The Court has heard testimony about the downturn in the plaintiff's business. However, the there is no accurate barometer by which his future earnings can be predicted with any certainty. Accordingly, the Court will use an average of the plaintiff's earnings over the last three years or $317,666.00. Should the plaintiff's earnings continue to diminish, he could seek a modification of the child support award. The defendant earned the equivalent income of $12,000.00 from her camp employment.
From their incomes, the Court must subtract the Social Security and Medicare taxes paid by each of the parties. DRL § 240(1-b)(b)(5)(vii)(H). Further, the plaintiff's income is to be reduced by the amount of spousal maintenance to be paid in accordance with this Order. DRL § 240(1-b)(b)(5)(vii)(C).Reducing plaintiff's income by these taxes and maitnenance results in his having CSSA income of approximately $251,444.00 per year. Defendant's CSSA income is approximately $12,000.00.
Having computed the parties' individual incomes, the Court adds them together, resulting in a combined parental income of $263,444.00. Plaintiff's share of that combined income is 95.4% and defendant's share is 4.6%. Next, because there are three children to be supported, the applicable CSSA rate is 29%. Multiplying the parties' first $130,000.00 in combined income by that rate results in a support obligation of $37,700.00. Plaintiff's and defendant's shares of that amount are $35,966.00 and $1,734.00, respectively.
The third and final step under CSSA is the determination of the amount of child support, if any, that should be awarded based upon the combined parental income that exceeds the statutory cap DRL § 240(1-b)(c)(3) (the "Excess Income"). In making that determination, the Court is "not bound to apply the statutory percentage, . . . to income above the statutory threshold," but "may establish the child support obligation of the noncustodial parent through application of the statutory percentage, the factors set forth in Domestic Relations Law § 240(1-b)(f), or some combination of the two." Jordan v. Jordan , 8 AD3d 444 , 779 NYS2d 121 (2d Dept. 2004).
In this case, DRL § 240(1-b)(f) supports the view that the CSSA should be applied to a substantial portion, but not nearly all, of the Excess Income in determining defendant's child support obligation. The parties had a very nice standard of living, with the children going on vacations, having household help, and participating in an assortment of extracurricular activities. Moreover, "the statutory limit on basic child support has not ever, and does not now, reflect the economic reality of living in [Rockland] County, where, as a result of the high cost of living, it simply takes more money to raise a family . . . than it might in some other areas of this state." K.J. v. M.J., 14 Misc 3d 1235(A), 836 NYS2d 500, 2007 WL 602225 (Sup. Ct. West. Co. Feb. 9, 2007) (quotations omitted).
Finally, as detailed during the trial, the eldest child, Jared, has a learning disability and the second child, Ethan, has ADHD and Tourette Syndrome. Each requires a tutor, and Ethan receives medical treatment for the Tourettes and may see a behaviorist as well. The children participate in a number of organized sports programs with attendant fees and equipment costs.
Children with special needs require extraordinary parenting and place extraordinary demands upon the adults who care for them. Donald Sposnek and Heidi Perryman, Special Needs Children in Family Court Cases, 43 Fam. Ct. Rev. 566 (2005). "[T]he stress of parental separation and divorce exacerbates the symptoms of these children, makes them harder to care for at a time when there are fewer resources to go around and impacts the entire family in unique and often profound ways." Id. Cases have noted that standard child support charts do not address the higher costs inherent in raising a child with special needs. Susan L. Pollet, Impact of Separation or Divorce on Special Needs Children, N.YL.J. (Aug, 6, 2010).
The Court thus concludes that application of the statutory rate to an additional $70,000 of joint income is warranted. Applying the statutory 29% rate to the additional $70,000 in combined parental income yields an additional child support obligation in the amount of $20,300.00 annually. Plaintiff's and defendant's shares of that amount are $19,366.00 and $934.00, respectively. Accordingly, the plaintiff's annual child support obligation is $55,332.00 Upon the emancipation of the parties' eldest child, defendant shall only be required to provide support for their two younger children. At that time, defendant's child support obligation shall be reduced to 25% of the combined parental income of $293,444.00. Pursuant to DRL § 240(1-b)(c)(4)-(7), certain additional child-related expenses shall be paid in proportion to the parties' CSSA incomes. Any uncovered and unreimbursed medical, dental, optical, opthalmological, therapy and prescription drug expenses shall be paid pro rata, with plaintiff paying 95.4% and defendant paying 4.6%. Any extracurricular activities for the children shall also be paid in proportion to the parties' incomes, with a cap of $3,000 per year per parent, unless the parties agree otherwise. Louzoun v. Montalto , 70 AD3d 652 (2nd Dep't 2010). Of course, this does not prevent either party from spending his or her own money on activities, notwithstanding the cap.
The parent incurring the expense must obtain an invoice or receipt and send a copy to the other parent. The recipient shall pay his or her proportionate share within 30 days of receipt of the invoice. The plaintiff shall maintain a health insurance for the parties' children.
The plaintiff only shall be entitled to claim the children as dependents for tax purposes. Popelaski v. Popelaski , 22 AD3d 735 (2nd Dep't 2005).
IV. COUNSEL FEES
The defendant has incurred approximately $80,000.00 in counsel fees. The defendant seeks an additional $50,000.00 in counsel fees and has set forth an itemization of expenses incurred. Pursuant to prior Orders of this Court, the plaintiff has already paid over $30,000.00 to defendant's counsel and has paid approximately $20,000.00 in litigation expenses.
"[I]n exercising its discretionary power to award counsel fees, a court should 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." DeCabrera v. Cabrera-Rosete, 70 NY2d 879 (1987). See also Johnson v. Chapin , 12 NY3d 461 (2009); Gagstetter v. Gagstetter, 283 AD2d 393 (2nd Dep't 2001); Olesh v. Auerbach, 227 AD2d 406 (2nd Dep't 1996).
In this case, it is clear that the plaintiff earns significantly greater income than the defendant. However, it must also be noted that the plaintiff has already made substantial payments to the defendant's counsel. Further, the plaintiff now has substantial maintenance and child support obligations. Such financial obligations of the monied spouse must be considered by the Court in making its determination. Popelaski v. Popelaski , 22 AD3d 735 (2nd Dep't 2005).Applying the above factors, and award of counsel fees is appropriate. Accordingly, the plaintiff shall pay $15,000.00 to defendant's counsel.
Plaintiff shall submit proposed Findings of Fact and Conclusions of Law and a Judgment of Divorce consistent with this decision, along with all the other required papers, on notice to defendant.
This constitutes the decision and order of the Court.