Opinion
Index No. 50097/2021
12-06-2023
S.A., Plaintiff, v. M.A., Defendant.
Dimopolous Bruggerman PC counsel for pltf James M. Lenihan counsel for deft
Unpublished Opinion
Dimopolous Bruggerman PC counsel for pltf
James M. Lenihan counsel for deft
HON. ROBERT S. ONDROVIC, J.S.C.
A nonjury trial was held on six nonconsecutive days in April 2023, as to certain issues concerning, inter A.A.a, equitable distribution, maintenance, and child support. After considering the sworn testimony of the parties, the credibility of the witnesses, the documents admitted into evidence, and the parties' post-trial submissions, the Court makes the following findings of fact and conclusions of law:
Procedural History
The parties were married in Pakistan on June 10, 2006, and are the parents of three unemancipated children born in 2011, 2010, and 2008. During the marriage, the parties and the children resided on the middle floor of the marital residence located at XXXXXX in Yonkers, NY (hereinafter the marital residence). The defendant's sisters, A.N. and S.A., and their respective families resided on the top and bottom floors.
In January 2021, the plaintiff commenced this action for divorce by filing a summons with notice. In a verified complaint, the plaintiff sought, inter alia, an award of maintenance, child support, and counsel fees, and a determination on the issues of custody and equitable distribution. The defendant filed a verified answer and counterclaimed for a divorce pursuant to DRL § 170(7).
The plaintiff filed a statement of net worth (hereinafter SNW), in February 2021, indicating that she is unemployed, her monthly expenses total $10,894.03, and she has minimal assets, including a savings account with a balance of $16,337 and a broker account with a balance of $22,867.69, which was funded by unemployment compensation. In an updated SNW, the plaintiff listed her monthly expenses as $11,820.39 and indicated that her assets include two savings accounts holding a total balance of $26,487 as of March 2023, and a broker account with a balance of $12,619.
The defendant filed a SNW in February 2021 indicating that he is employed as an IT Analyst for Montefiore Information Technology (hereinafter Montefiore), the plaintiff is voluntarily unemployed and previously worked as a medical assistant, and his monthly expenses total $7,406.22. He indicated that the parties contribute $1,678 per month toward the mortgage and the remaining $2,350 is paid by his sisters. The defendant noted that his gross income from employment is $149,900. The defendant's assets include checking accounts holding a total balance of $41,818, a retirement account with a value of $201,273.49, and a TD Ameritrade account with a balance of $3,620.
The defendant noted in his SNW that he is the title owner of the marital residence, but stated that his family who reside in the marital residence contribute toward the carrying costs in exchange for an ownership interest. The defendant indicated that he has a 40% ownership interest in a gas station, American Petroleum, Inc., located at 341 West Jericho Turnpike in Huntington, NY (hereinafter AP), and a 25% ownership interest in an IT business, Rendlen System Inc. (hereinafter Rendlen). He listed his liabilities as including an alleged debt he owes to Iftikhar Ahmed (hereinafter Ahmed), which was purportedly incurred in January 2013, in the original amount of $950,000.
In an updated SNW dated April 8, 2023, the defendant indicated that his monthly expenses have drastically reduced to $1,551.46. He noted that he now contributes $500 per month toward the mortgage and the remaining $3,540 is paid by family. The defendant noted that he receives $41,600 in gross income from Rendlen and his assets include checking accounts with a total of $27,252, the marital residence (together with his sisters), and a retirement account with a value of $227,063. Unlike his original SNW, the defendant indicated that he holds a 50% ownership interest in Rendlen and is the sole owner of AP.
In June 2021, the parties entered into an interim stipulation, pursuant to which it was agreed that the plaintiff and the children would have exclusive use and occupancy of the middle floor of the marital residence, the defendant would have exclusive use and occupancy of the top and bottom floors, the defendant would pay combined maintenance and child support to the plaintiff in the amount of $2,500 per month, 100% of the carrying costs of the marital residence, 85% of the children's statutory add-on expenses, and interim counsel fees in the amount of $30,000.
On March 4, 2022, the Court granted the plaintiff's motion pursuant to DRL § 237 for an award of interim counsel fees to the extent of awarding the plaintiff the amount of $62,750. In reaching that determination, the Court found that the defendant's account of his finances were not believable given that he purportedly earns income of only $150,000 per year, yet was able to loan $400,000 to his brother.
By order dated April 25, 2023, the Court appointed Lisa Zeiderman, Esq. as receiver of AP.
The Trial
On the first day of trial, the attorney for the children, who was appointed in October 2021, advised the Court that the parties reached an agreement on the issues of custody and access, which would be memorialized in a written agreement. The custody and parenting stipulation was filed with the Court and so-ordered on December 6, 2023.
The plaintiff testified that the parties resided with the children in the marital residence together with the defendant's sisters, who occupy the top floor and basement. She claimed that she contributes to the payment of certain housing expenses, including the mortgage, taxes, and insurance, and the rest is paid by the defendant. The plaintiff stated that she was last employed in 2021 at a doctor's office earning $20 per hour and working approximately 12 to 15 hours per week.
The plaintiff testified that the defendant is the sole owner of AP. She claimed that the defendant deposited income he earned from his gas stations into her account, the parties' joint account, and his siblings' accounts "so if there is litigation it can be easy for him to hide his money." The plaintiff testified that the defendant's sources of income included his job at Montefiore, Rendlen, and his gas stations.
NYSCEF Doc. No. 189 at 28
The plaintiff stated that on May 10, 2019, she endorsed a check to the defendant in the amount of $120,000 because she was told by him that the money would be used as a loan to Farmingdale Petroleum, Inc. (hereinafter Farmingdale), an entity owned by A.A., the defendant's brother. She asserted that the source of those funds was "[f]rom [the defendant's] gas stations." The plaintiff testified that she was unaware that in June 2019, the defendant used marital funds to issue a check in the amount of $400,000 to Farmingdale. She also had no knowledge that the defendant transferred $692,000 from his TD Ameritrade account as reflected on his August 2021 bank statement.
id.
The plaintiff testified that she was unaware that in July 2018, the defendant had purchased real property located in East Rockaway, NY. She claimed that she had no knowledge of various wire transfers by the defendant from the parties' joint account and her individual account, to which he had access. The plaintiff stated that between August 2020 and January 2021, the defendant transferred $52,000 from her individual account to his cousin in Pakistan. She testified that approximately $50,000 of the money that was withdrawn by the defendant from her account was returned. The plaintiff acknowledged that all of the money deposited in her individual account was done so by the defendant.
The plaintiff asserted that A.A. would bring the defendant cash in a black bag every month. She estimated that the amount ranged between $20,000 and $25,000, and the defendant would deposit the cash in different bank accounts or put the money in a safe in his bedroom. The plaintiff testified that the defendant would give her cash to deposit in her individual account.
On cross examination, the plaintiff acknowledged that the defendant purchased the marital residence prior to the marriage in 2006. She stated that prior to moving to the United States, she worked in Pakistan as a doctor. The plaintiff noted that upon her move to the United States, she was required to take three examinations in order to work under the observation of a physician. She testified that from 2016 to 2020, she worked at Inter County Medical Plaza for Dr. Naeem. During that time, she also cared for the defendant's elderly mother, who died in April 2019.
When the plaintiff was shown a copy of her resume, she claimed that "most of this is exaggeration," meaning "[t]he years and the work experience." The plaintiff testified that she has been unemployed since mid-2020. She acknowledged that she received approximately $650 per week from Freedom Care for several months in connection with caring for the defendant's mother. The plaintiff was unaware whether the defendant's cousin paid for certain expenses related to the defendant's mother's burial in Pakistan. According to the plaintiff, she contributes toward the payment of many expenses including her mobile phone, groceries, dining out, dry cleaning, snow removal, automobile repairs, vacations, and the children's extracurricular activities. The plaintiff stated that she never worked for Farmingdale or AP.
id. at 83-84
The defendant testified that his marriage to the plaintiff was arranged and as a condition of the marriage, he agreed to pay approximately $3,000, support her attainment of a medical degree, and purchase the marital residence. He recalled that he had paid a down payment of approximately $50,000 toward the purchase of the marital residence. The defendant later testified on redirect that he never committed to buying the plaintiff a house as a condition of the marriage.
The defendant stated that Rendlen was formed by him prior to the marriage in 2003. He asserted that in 2012, he transferred his ownership interest in Rendlen to his sister, A.N., and in 2016, she transferred 50% of the shares back to him and the remaining 50% to A.A.. According to the defendant, Rendlen "didn't have any business" and A.A. planned to "revive this business." He recounted that in 2004, he and "some partners" formed an entity known as 501 2nd Avenue, Inc. d/b/a America 99 Cents Store (hereinafter 501 2nd Ave) and that his sister had invested approximately $100,000. The defendant testified that due to an issue with the lease, his investment in 501 2nd Ave of approximately $150,000, and his sister's investment of $100,000, were returned to them.
id. at 141-142
id. at 148
The defendant stated that he and two friends formed a construction company known as Siba Contracting, Inc. (hereinafter Siba), but he sold his shares in 2005 for $45,000. He testified that he used the money from 501 2nd Ave and Siba to invest in an entity known as Gasteria, which operated a gas station. The defendant stated that he held an interest in Gasteria from October 2005 until November 2007, at which time he commenced an action against "[t]he main partner," who had sold the business without informing the other partners. He asserted that the action was settled and he received approximately $200,000. The defendant testified that he loaned A.A. $400,000 to purchase Farmingdale, and that approximately $125,000 has been repaid with a combination of checks and cash.
id. at 150
The defendant testified that in 2019, he earned $16,900 of income from AP, as reflected on his W2 form, and in 2020 he earned $12,500 from AP. He stated that in 2018, he earned $20,800 as an officer of AP, as reflected on his 1125-E form. The defendant further testified that he is personally liable for certain outstanding debts owed by AP, including an "SBA loan" in the original amount of $150,000 and the "Sunoco liability," which as of last year was approximately $350,000. The defendant acknowledged that AP has "no monetary obligations" to Macchia Group, which is the landlord of AP. The defendant stated that a centralized system called "Topaz," automatically monitors the amount of gas sold per day. He testified that most of the gas sales paid in cash are deposited at the bank, but some is used for "cash buying."
id. at 311-313
id. at 372
The defendant stated that he was fired from Montefiore last year and after a few months of unemployment he began working at Rendlen, where he currently works full-time and earns $41,600 in gross income. According to the defendant he does not currently earn any income from AP. He stated that he is currently searching for alternative employment and is reasonably confident that he can earn an annual salary of approximately $150,000. The defendant acknowledged that his 2018 income tax return reflected that Rendlen paid for certain of his expenses including the lease for his BMW, which was $7,162, automobile insurance, which was $2,172, and office expenses, which were $1,749. He testified that his highest salary during his employment with Montefiore was approximately $144,000.
The defendant testified that his TD Ameritrade account was initially funded in 2004 with approximately $5,000, and over the years he "added money into it when [he] was selling businesses." The defendant claimed that the account held as much as $500,000 prior to his marriage to the plaintiff. According to the defendant, the plaintiff had access to that account and executed trades.
id. at 299
The defendant claimed that the plaintiff's father gifted him land in Abbottabad when he married the plaintiff and he contributed approximately $60,000 toward the construction of a home on the property. He stated that when he purchased the marital residence, he entered into a contract with his sisters dated May 1, 2006, which provided that Nazir would contribute $1,000 per month plus utilities, Aziz would contribute $800 per month plus utilities, each sister "shall be reimbursed for these contributions upon the sale of the property," and "if the property is not sold prior to the existing mortgage being paid in full, the property shall be re-conveyed, by deed, granting each party a one third-ownership interest in the property." The defendant stated that the monthly mortgage payment is over $4,000, and that he has been contributing approximately $500 since he became unemployed and his sisters pay the balance.
Defendant's Exhibit F22
The defendant testified that the marital residence was encumbered by two mortgages, he defaulted on the first and second mortgages, and subsequently negotiated an agreement with the mortgage loan servicer to pay $12,000 in order to satisfy the unpaid balance of the second mortgage. He stated that in around 2016, he refinanced the first mortgage and "put down $40,000" from his "[p]ersonal bank accounts." A mortgage billing statement reflects that as of December 9, 2020, the outstanding principal balance of the mortgage was $317,829. The defendant testified that he has made additional payments toward the mortgage since the date of commencement, and the outstanding balance is currently $259,365. The defendant noted that his sisters commenced an action against him seeking "[t]he money that they put into [the marital residence]." He testified that he signed a stipulation pursuant to which he agreed to "open a trust and transfer this property into the trust and then give them equal share into that trust." The stipulation, however, which was admitted into evidence, provides that the parties agreed that the marital residence "shall be transferred from [the defendant] into a corporation or LLC in which each party has an ownership interest" without specifying a percentage.
NYSCEF Doc. No. 189 at 266
id. at 324
id. at 325
Defendant's Exhibit F21
The defendant testified that in around 2012, he took advantage of an investment opportunity in Pakistan and made an initial investment of $140,000, but it was "a total loss." He claimed that he was given money by Iftikher Ahmed to purchase a "Tommy Car Wash," and it was agreed that he would "slowly" pay off the debt of $950,000 owed to Ahmed. He stated that he made a payment in the amount of $725,000 to Ahmed on January 7, 2021, "to pay his debt" using "money that [he] had pre-marriage."
id. at 317-318
id. at 318-319
id. at 322-323
On cross examination, the defendant testified that the investment he entered into with Ahmed was in 2013 and that he, individually, invested $140,000 in three to four pharmaceutical companies. He stated that he never paid Ahmed back because "we defaulted in 2014 or 2015," but felt obligated to repay Ahmed because he has a "relationship with him" and their mothers were childhood friends. The defendant testified that he paid Ahmed $725,000 after the commencement of this divorce action because he learned that the plaintiff and his brother-in-law were conspiring to take "[a]ll the money [and] throw [him] out of [his] house." According to the defendant, prior to commencing the action, the plaintiff told him that she "was going to cash out" so he "sold all [his] stocks" and paid certain liabilities. The defendant testified that he shredded all bank records related to the 501 2nd Ave. and Siba, and no longer has any personal bank statements dated prior to 2006. The defendant testified that he uses a corporate credit card to pay for gas and his cell phone.
id. at 341
id. at 344
id. at 456
The defendant acknowledged that in around 2018, he contributed $215,000 toward the purchase of a property in East Rockaway, NY. He stated that the property was sold in 2020, and he earned a profit of $17,000, which he deposited in his TD Ameritrade account. The defendant stated that in February 2019, Rendlen loaned one of his siblings $55,000, half of it was repaid, and there is no documentation memorializing the loan. He testified that the day after the action was commenced, his sister withdrew the entire balance of $61,820.69 in Rendlen's account to use toward "their salary expenses." The defendant acknowledged that two weeks prior to the commencement of this action, he transferred $68,000 from the parties' joint account to his TD Ameritrade account, but that half of the money was subsequently returned to the plaintiff. The defendant explained that there was net loss of $190,000 in his TD Ameritrade account so he transferred the money "to buy some stocks and recover that loss." He testified that he transferred $25,000 from the plaintiff's bank account without her consent to an individual in Pakistan because that money "belongs to [his] mother" and was "being saved for her medical expenses." The defendant testified that he had the plaintiff's consent to transfer $9,000 from her bank account on August 31, 2020 and again on September 10, 2020, to the same person in Pakistan.
id. at 436
id. at 448
id. at 441
A.A., the defendant's brother, testified that he met the plaintiff prior to the marriage in Pakistan in 2005 and mediated the arranged marriage between the parties. He stated that he moved from Pakistan to the United States in 2016. A.A. asserted that he owned property in Islamabad, which he sold, and a home in Rawalpindi, which he uses when he travels to Pakistan. He testified that he transferred $167,000 - the proceeds from the sale of his Islamabad property - from his account in Pakistan to the defendant's bank account. A.A. stated that those monies were used to invest in AP. He noted that their sister also invested approximately $80,000 in AP. A.A. testified that he, his sister, and the defendant "signed some paperwork" memorializing that it was "a loan agreement basically between [him], [the defendant], and [their] sister." According to A.A., the defendant was named sole owner of AP because he was new to the country and he trusted the defendant.
id. at 158
id. at 161
During a sidebar, counsel for the parties stipulated that the defendant is the sole owner of AP.
A.A. testified that he was mainly responsible for the operations of AP. He stated that AP purchased fuel from Sunoco and an automated system monitored gas inventory levels. A.A. asserted that AP's cash flow began to decline after a 7-Eleven gas station opened nearby. He testified that AP's volume gradually decreased from approximately 120,000 gallons of gas per month to 45,000 gallons per month. A.A. recounted that in around May 2019, AP received notice from Macchia Group that AP was in default under the lease agreement because AP's monthly sales volume dropped below 100,000 gallons. He stated that he, along with the defendant, had many meetings with Maachia Group, however, in August 2021, AP received a notice of eviction. A.A. testified that they subsequently negotiated an agreement with Maachia Group that AP would use BP as its gas distributor, however, Sunoco charged AP a penalty of approximately $350,000 for "breaking the contract." He stated that even after AP switched to BP in May 2022, AP still fell short of 100,000 gallons of sales volume per month. A.A. noted that AP was required to pay "six cents per gallon penalty on every gallon [shortfall]," which meant that AP was paying approximately $26,000 per month in rent and penalties.
id. at 178
id. at 179
A.A. testified that he subsequently borrowed $400,000 from the defendant to use toward the purchase of a gas station in Hicksville, NY, as evidenced by a check made out by the defendant to Farmingdale. He stated that his sisters each gave him $40,000. A.A. stated that he is the sole owner of Farmingdale and that Farmingdale has repaid the defendant $125,000. He acknowledged that during the time he was operating AP with the defendant, he would bring approximately $5,000 to $7,000 to the parties' home one to two times per month. According to A.A., the monies were "a loan repayment" to the defendant.
Plaintiff's Exhibit 26
NYSCEF Doc. No. 189 at 187
A.A. testified that he and the defendant each own a one-half share of Rendlen, he acquired his share in around 2017, and he drew a salary of approximately $78,000 in 2017. He claimed that the employees who perform work for Rendlen are based out of Pakistan, the employees' salaries are paid by a Pakistani company that is solely owned by his brother-in-law, and Rendlen provides funds to the Pakistani company to pay the employees' salaries.
On cross examination, A.A. testified that AP did not earn a profit and he did not receive a salary between 2019 and 2022. He then stated that he sometimes received a "minor" amount of cash from the defendant as compensation for the services he provided for AP during that time. He stated that due to AP's deteriorating financial condition, the defendant stopped receiving a "paycheck" from AP approximately 6 months after the plaintiff filed for divorce. A.A. stated that AP was placed on the market for sale in 2019, but they did not receive any offers. He surmised that AP earned approximately $700,000 in 2022 in total gas sales, and approximately 20- 25% of that amount is paid in cash, which is deposited in AP's bank account.
id. at 232-233
id. at 237
Closing Statements
In a post-trial brief, the plaintiff's attorney argued that the defendant's testimony regarding his finances is devoid of credibility and an adverse inference should be drawn against him. He contended that in addition to the income earned by the defendant from Montefiore, A.A. delivered a bag of cash to the defendant each month containing approximately $20,000. The plaintiff's attorney argued that the defendant engaged in several transactions with the intent to defraud the plaintiff. He emphasized, among other things, that in May 2019, the defendant transferred $120,000 from the plaintiff's bank account and those funds were never returned; in 2019, the defendant used marital funds to issue a check in the amount of $400,000 to Farmingdale; the defendant transferred $750,000 from his bank account to Ahmed after the commencement of this divorce action; and in July 2018, the defendant purchased real estate for $230,000, unbeknownst to the plaintiff, and failed to explain where he deposited the sale proceeds. The plaintiff's attorney argued that the evidence established that Rendlen is "not a legitimate business but was operated by the Defendant and his family members haphazardly, with each transferring title to one another to suit his or her needs."
NYSCEF Doc. No. 188 at 2
According to the plaintiff's attorney, the defendant "was able to secret, hide and fraudulently deprive his family out of $1,681,320" and the plaintiff is entitled to a 75% share, at a minimum, or $1,260,990. He emphasized that the defendant's deceptive testimony throughout the trial was designed to obfuscate the facts. The plaintiff's attorney noted that the defendant's testimony that AP had no value because of a lease default was fabricated and the defendant acknowledged liquidating martial accounts in response to the plaintiff's threat of a divorce. He further emphasized that the defendant failed to produce documents concerning the valuation of AP in response to the plaintiff's discovery demand and, in response to a so-ordered trial subpoena seeking documents demonstrating AP's income and deposits for the period of January 2019 to the present, the defendant only produced "a mishmash" of sales documents for May 2022 through February 2023, and bank deposit statements from 2019 through March 2021. The plaintiff's attorney argued that the defendant purposely produced records for non-overlapping periods making it impossible to cross-reference. He asserted that the plaintiff should be awarded 100% of the proceeds of the sale of AP, after the payment of expenses and receivership, and 100% of the value of the plaintiff's retirement accounts.
id. at 3 (emphasis omitted)
The plaintiff's attorney further argued that an additional $300,000 of income should be imputed to the defendant's annual W-2 income of $141,000 for purposes of calculating his maintenance and child support obligations resulting in a monthly award of $2,865 in maintenance and $6,317. He stressed that the defendant's premarital, separate property claims are unsubstantiated and should be rejected. The plaintiff's attorney argued that the defendant made unauthorized transfers totA.A.ng $697,000 in contemplation of the divorce; the marital residence should be sold and the plaintiff awarded 100% of the proceeds; the defendant violated the automatic orders by entering into a stipulation based on a "sham lawsuit" commenced by his sisters "to shelter assets;" the defendant's testimony concerning a purported loan he received from Ahmed was incredible as a matter of law and his payment of $725,000 to Ahmed after the commencement of this action violated the automatic orders; the plaintiff should be awarded a one-half share of the sale proceeds of AP; the plaintiff should be awarded $300,000 or a 75% share of the defendant's loan of $400,000 to Farmingdale; the plaintiff should be awarded a 75% share of the sale proceeds of the property the defendant sold during the marriage; and the plaintiff should be awarded a 50% share of the value of the defendant's ownership interest in Rendlen, which was stipulated to have a value of $41,000. Finally, the plaintiff's attorney contended that the plaintiff, who is the less-monied spouse, is entitled to an award of counsel fees. He noted that the plaintiff incurred a total of $203,871.38 in counsel fees, of which the defendant has paid $143,142.35 and the plaintiff has paid $35,000. The plaintiff's attorney asserted that the remaining balance of $60,846.03 should be paid by the defendant, and he should also be directed to reimburse the plaintiff for the $35,000 that she paid out-of-pocket.
id. at 11
In a post-trial memorandum, the defendant's attorney asserted that prior to the commencement of this action, the plaintiff, who attained a medical degree in general medicine and surgery in Pakistan, was employed as the Director of Clinical Services at Inter County Medical Plaza and that the position carries an average base salary in New York State of $96,790. He noted that the plaintiff's attorney acknowledged that the plaintiff works clerical duties in a doctor's office 2-3 times per week, earning $20 per hour.
The defendant's attorney stated that prior to the marriage, the defendant formed Rendlen and had an ownership interest in 501 2nd Ave and Siba, and that the defendant subsequently invested in Gasteria using the money he received from the sale of 501 2nd Ave. He noted that following a lawsuit related to Gasteria, the defendant entered into a settlement pursuant to which he received approximately $200,000. The defendant's attorney stated that the defendant also had approximately $489,000 of premarital funds, which he invested in his TD Ameritrade account. With respect to the marital residence, the defendant's attorney argued that the uncontradicted evidence demonstrated that it was purchased by the defendant prior to the marriage and he paid a down payment of $50,000 from separate property. He argued that the defendant is entitled to a credit in the amount of $182,000, representing the defendant's use of premarital funds to pay down the debt on the marital residence. The defendant's attorney contended that the parties are entitled to only one-third of any remaining equity in the marital residence since the remaining two-thirds belongs to the defendant's sisters.
The defendant's attorney noted that AP was purchased in 2017 by the defendant and is currently under the supervision of a receiver for sale. He argued that the defendant's separate property includes Rendlen, the marital residence, his TD Ameritrade account, 501 2nd Ave., Siba, and Gasteria, and that the mortgage on the marital residence is his separate premarital debt. The defendant's attorney contended that the parties' joint marital debts include a Toyota Camry account, three Chase credit cards, an HSBC credit card, EMV chips, a loan from the defendant's sister, a loan from the defendant's siblings for AP, New York State Lottery Tax returns 2020, an SBA Loan, Sunoco Gas Default, "Mudarbah Investment" default, New York State Sales Taxes, and Maachia Group default.
Conclusions of Law
Grounds for Divorce
In the summons with notice filed on January 5, 2021, and the complaint filed on February 9, 2021, the plaintiff alleged an irretrievable breakdown of the marriage for a period six months prior to commencement of the action (see DRL § 170[7]), as the sole ground for the divorce. The parties resolved the issue of grounds for divorce by stipulation, which was so-ordered by the Court on March 8, 2021.
Accordingly, the Court grants the plaintiff a divorce on the ground set forth in DRL § 170(7).
Equitable Distribution
"Equitable distribution presents issues of fact to be resolved by the trial court and should not be disturbed on appeal unless shown to be an improvident exercise of discretion" (Santamaria v. Santamaria, 177 A.D.3d 802, 804 [2d Dept. 2019]; see Kaufman v. Kaufman, 189 A.D.3d 31, 56 [2d Dept. 2020]). Where, as here, "a determination as to equitable distribution has been made after a nonjury trial, the trial court's assessment of the credibility of witnesses and the proffered items of evidence is afforded great weight on appeal" (id.; see Sufia v. Khalique, 189 A.D.3d 1499, 1500 [2d Dept. 2020]).
Equitable distribution of marital property does not necessarily mean equal distribution (see Santamaria v. Santamaria, 177 A.D.3d at 804; Culen v Culen, 157 A.D.3d 926, 929 [2d Dept. 2018]). Rather, "[t]he equitable distribution of marital assets must be based on the circumstances of the particular case and the consideration of a number of statutory factors" (id.; see Domestic Relations Law § 236[B][5][d]; Shvalb v. Rubinshtein, 204 A.D.3d 1059, 1061 [2d Dept. 2022]). "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 Domestic Relations Law § 236[B][5][d]).
Based on a consideration of the relevant statutory factors, including, inter alia, the duration of the marriage, the financial resources of the parties, the plaintiff's earning potential, that the defendant's testimony regarding his actual income, business investments, and transfers of marital assets lacked credibility, and evidence of attempts by the defendant to deprive the plaintiff of her distributive share (see Domestic Relations Law § 236[B][5][d]), the Court finds that an unequal division of the marital assets is warranted.
In particular, at trial the defendant admitted that within "48 hours after [the plaintiff] files for divorce," he transferred $725,000 to Ahmed from his TD Ameritrade account because the plaintiff was "cashing out," meaning "taking all the money from [him]" and "planning to throw [him] out of [his] house," and he allegedly wanted to repay the purported debt he owed to Ahmed. The defendant acknowledged that pursuant to his purported agreement with Ahmed, he was to "pay off that debt slowly, slowly back to him," yet after seven years of making no payments toward the alleged loan, he suddenly repaid Ahmed in full after the plaintiff filed for divorce. A copy of the defendant's August 2021 statement reflects that he effectuated a transfer in the amount of $692,000 from his TD Ameritrade account.
NYSCEF Doc. No. 189 at 344-345, 348, 443
The Court finds, based on the absence of any credible evidence whatsoever substantiating the defendant's assertion that he was repaying a loan extended to him by Ahmed in 2013 made in connection with a convoluted "Mudearbah" investment , that the defendant transferred the money in violation of the automatic orders in an attempt to deprive the plaintiff of assets in equitable distribution and deplete marital assets at a time when the marriage was breaking down (see Greenberg v. Greenberg, 162 A.D.3d 870, 873 [2d Dept. 2018]; Anvaer v. Anvaer, 160 A.D.3d 794 [2d Dept. 2018]).
id. at 317-320, 337-345, 471
The evidence adduced at trial also showed that on December 16, 2020, two weeks prior to the commencement of this action, the defendant transferred $68,000 from the parties' joint bank account at HSBC to his TD Ameritrade account to allegedly "buy some stocks and recover [his] money." The Court finds that the defendant's reason for effectuating the transfer is disingenuous and lacks credibility. The defendant also accessed the plaintiff's Chase account ending x5882 and made four unauthorized transfers totA.A.ng $52,000 between August 2020 and January 2021 to his cousin in Pakistan, which he has since largely repaid.
id. at 447-448
With respect to the marital residence, the evidence admitted at trial demonstrates that the defendant entered into a contract of sale to purchase the marital residence in February 2006, for the amount of $630,000, and according to the contract of sale and settlement statement, the defendant paid a down payment in the amount of $25,000. The defendant points to no documentary evidence substantiating his assertion that he paid a down payment of $50,000. Approximately one month prior to the marriage, in April 2006, the defendant took out a mortgage on the marital residence in the principal amount of $519,200 and as of December 2020, the outstanding principal balance was $317,829.02. Although the defendant is the sole title owner of the marital residence and is the sole borrower under the mortgage and note, an unnotarized document dated May 1, 2006, was admitted into evidence indicating that it was agreed between the defendant and his sisters, A.N. and S.A., that his sisters would be reimbursed for their monthly contributions toward the mortgage payments upon the sale of the property. In violation of the automatic orders (see Domestic Relations Law § 236[B][2][b][1]), on March 16, 2023, the defendant purported to settle a lawsuit brought against him by his sisters in December 2021, pursuant to which he agreed to transfer the marital residence into a corporation or LLC in which he and his sisters would have an undisclosed, indeterminate ownership interest. It is noted that there was no credible proof admitted at trial as to the actual payments, if any, made by his sisters toward the mortgage.
Under these circumstances and based on the aforementioned transfers of marital assets by the defendant in contemplation of the divorce and evidence of an intention by the defendant to deprive the plaintiff of her distributive share, the Court directs that the marital residence be sold and upon the sale, awards the plaintiff 100% of the net proceeds after payment of the outstanding balance of the mortgage and a separate property credit to the defendant in the amount of $25,000, representing the down payment he made prior to the marriage.
Each party shall select a real estate broker, both of whom will select a third broker, who will list the marital residence for sale within 30 days of the date of entry of the judgment of divorce. 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. The defendant shall be responsible for 100% of the carrying charges of the marital residence until it is sold.
With respect to Rendlen, the evidence suggests that the defendant, along with his siblings, used the business as their personal piggy bank. Rendlen was incorporated by the defendant a few years prior to the marriage in December 2003. The defendant testified that in 2012, he transferred his ownership interest in Rendlen to his sister, A.N., claiming it was because he became employed full-time, and in 2016, she inexplicably transferred her ownership interest in equal shares to the defendant and A.A., notwithstanding that the defendant was employed full-time by Montefiore at that time. At trial, the defendant insisted that Nazir is still the owner of Rendlen, "but not according to IRS papers" Although the defendant claims that Rendlen loaned Nazir $55,000 in February 2019, there was no documentation memorializing the loan and no evidence that any portion of the loan was repaid. The Court rejects the defendant's self-serving contention that the withdrawal of the entire balance of $61,820.69 in Rendlen's account one day after the commencement of this action was for a legitimate purpose. Rather, the Court finds that it was a blatant attempt by the defendant and his siblings to shelter assets that may be subject to equitable distribution.
NYSCEF Doc. No. 189 at 437
Under these circumstances, coupled with the plaintiff's indirect contributions, including that of primary caretaker of the parties' three children, the plaintiff is awarded 50% of the value of the defendant's ownership interest in Rendlen. Since the parties stipulated on the record that Rendlen has a value of $41,000, the plaintiff is awarded $10,250, to be paid within 45 days of the date of this Decision After Trial.
For these same reasons, the Court also awards the plaintiff 50% of the net proceeds, if any, upon the sale of AP, after the payment of all expenses, liabilities, and receivership. The Court agrees with the plaintiff that the defendant purposely thwarted attempts by her to determine whether he was pocketing cash from AP by comparing the amount of cash sales received by AP with corresponding deposits of cash in AP's bank accounts or records of cash payments. The Court also credits the plaintiff's testimony that the defendant was receiving thousands of dollars in cash from A.A. every month and rejects the self-serving testimony of A.A. and the defendant that those payments were being made to pay down an alleged loan given by the defendant to Farmingdale.
The plaintiff insists that she is entitled to receive a distributive award in the amount of $1,260,990. However, a portion of that amount includes a check dated May 10, 2019 in the amount of $120,000 drawn from the plaintiff's account which she admittedly paid to the order of the defendant based on his representation that it would be used toward the purchase of a gas station. It also includes a check dated June 28, 2019, in the amount of $400,000 drawn from the defendant's TD Ameritrade account and paid to the order of Farmingdale, which is solely owned by A.A.. Although there is no documentary proof tending to establish that those transactions were loans and that the money was used for its alleged intended purpose, the Court declines to award a credit to the plaintiff arising out of financial activity that occurred during the parties' marriage where the transactions occurred over a year and a half prior to the divorce, well before either party anticipated the end of the marriage (see Mahoney-Buntzman v. Buntzman, 12 N.Y.3d 415, 421 [2009]). Similarly, the Court declines to issue any award to the plaintiff arising out of the purchase of certain real property located in East Rockaway, NY in July 2018. The Court, in fashioning its equitable distribution award, has already taken into consideration the defendant's lack of credibility regarding his income and the absence of documentary proof substantiating the nature of his financial transactions.
The Court also directs that the marital portion of the defendant's 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.
The defendant failed to meet his burden of establishing that his TD Ameritrade account held $489,000 of premarital separate property since his testimony was not confirmed by any documentary evidence (see Keren v. Keren, 201 A.D.3d 906, 907 [2d Dept. 2022]). In any event, according to his updated SNW, that account has been depleted and no basis exists to issue the defendant a credit for that sum of money.
Maintenance and Child Support
"The amount and duration of spousal maintenance is an issue generally committed to the sound discretion of the trial court and each case is to be resolved upon its own unique facts and circumstances" (Silvers v. Silvers, 197 A.D.3d 1195, 1199 [2d Dept. 2021]; see Alam v. Alam, 168 A.D.3d 896, 896 [2d Dept. 2019]). "'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'" (Sansone v. Sansone, 144 A.D.3d 885, 886 [2d Dept. 2016], quoting Sirgant v. Sirgant, 43 A.D.3d 1034, 1035 [2d Dept. 2007]).
The parties were married for more than 14 years when the plaintiff commenced this divorce action. At the time of trial, the plaintiff was 43 years old and the defendant was 46 years old, and both are in good health and capable of full-time work. The plaintiff attained a medical degree in general medicine and surgery in Pakistan, however, she does not have a license to practice medicine in the United States. The plaintiff testified that from around 2016 to 2020, she worked for Dr. Naeem at Inter County Medical Plaza and also cared for the defendant's mother, for which she received compensation from Freedom Care. The plaintiff was last employed in around 2021 at a doctor's office earning $20 per hour and working approximately 12 to 15 hours per week.
The defendant testified that he worked as an IT engineer for Montefiore from 2012 until his employment was terminated in November 2020. The defendant testified that he has since been working for Rendlen earning income of $41,600, while he searches for alternative employment. The record also demonstrates that the defendant was a prolific day trader, is the sole owner of AP, has a one-half ownership interest in Rendlen, and purportedly made substantial investments in various business ventures, notwithstanding the lack of documentation substantiating those transactions.
The parties' income tax returns admitted into evidence reflect that in 2020, the defendant earned $129,216 from Montefiore and $12,500 from AP; in 2019, the plaintiff earned $10,271 from Freedom Care and the defendant earned $120,331.68 from Montefiore and $16,900 from AP; in 2018, the plaintiff earned $18,506 from Freedom Care and the defendant earned $119,815 from Montefiore and $25,500 from AP; in 2017, the plaintiff earned $9,310 from Dr. Naeem and the defendant earned $117,112 from Montefiore; and in 2016, the plaintiff earned $18,680 from Dr. Naeem and the defendant earned $115,792 from Montefiore and $11,311 from Rendlen.
"A court is not bound by a party's account of his or her own finances, and where a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed" (see Miller v. Miller, 216 A.D.3d 1154, 1155 [2d Dept. 2023] [internal quotation marks omitted]). "The court may impute income based on the [party's] employment history, future earning capacity, educational background, or money received from friends and relatives. However the court must provide a clear record of the source of the imputed income, the reasons for such imputation, and the resultant calculations" (Pilkington v. Pilkington, 185 A.D.3d 844, 846 [2d Dept. 2020] [internal citations and quotation marks omitted]).
The Court declines to calculate the defendant's maintenance obligation using income of only $24,869.12 for the plaintiff, and instead, imputes income to the plaintiff of $50,000. The record demonstrates that the plaintiff previously worked part-time earning $20 per hour and no reason was provided as to why she cannot secure full-time employment especially given that she is no longer responsible for the care of the defendant's mother and the parties' youngest child is 12 years old. In addition, the plaintiff's educational background and employment history, as reflected on her resume, demonstrates that the plaintiff has the potential to earn income higher than alleged. Contrary to the defendant's contention, however, no competent proof was adduced at trial establishing that the plaintiff's potential income is closer to $100,000.
With respect to the defendant, the Court finds that his account of his finances lacks any indicia of credibility. Although the parties' income tax returns reflect that he earned W-2 income in 2020 of $129,216 and $12,500 from AP, the Court credits the plaintiff's testimony that the defendant's reported income does not accurately reflect the significant amounts of cash he received every month from A.A. and/or AP. As stated above, the plaintiff claimed that A.A. would bring the defendant cash in a black bag every month ranging between $20,000 and $25,000. Although A.A. denied using a black bag, he admitted that he brought approximately $5,000 to $7,000 in cash to the defendant once or twice a month, claiming it was "loan repayment," notwithstanding the absence of any credible evidence of a loan. The Court also finds it incredible that the defendant was able to invest in various business ventures and loan hundreds of thousands of dollars to A.A. based on the meager distributions he reportedly received from Rendlen and/or AP and his W-2 income from Montefiore. Under these circumstances, the Court imputes income to the defendant in the total amount of $369,216, which is $240,000 of additional income in excess of his reported 2020 W-2 wages.
As this action was commenced after January 23, 2016, it is governed by amendments to the calculation of post-divorce maintenance set forth in Part B of section 236 of the DRL (see L 2015, ch 269, § 4; Mahoney v Mahoney 197 A.D.3d 638, 639 [2d Dept. 2021]). Where, as here, the defendant's imputed annual income exceeds the statutory income cap of $203,000 (see DRL § 236[B][6][b][4]), the court shall determine the guideline amount of post-divorce maintenance by performing the calculations set forth in DRL § 236(B)(6)(c), and then shall determine whether to award additional maintenance for income exceeding the cap by considering the factors set forth in DRL § 236(B)(6)(e)(1) and setting forth the factors it considered (see DRL § 236[B][6][d][1]-[3]).
The defendant's maintenance obligation up to the income cap is $2,341.67 per month. Considering the relevant factors (see DRL § 236[B][6][e][1][a]-[o]), including the length of the parties' marriage, the modest standard of living enjoyed by the parties during the marriage, the present and future earning capacity of the parties, and the unequal division of the marital assets, the Court declines to award additional maintenance for income exceeding the cap. There is no basis in the record for a finding that the defendant's maintenance obligation up to the income cap is unjust or inappropriate.
Based upon the duration of the 14-year, 7-month marriage, the plaintiff would be entitled to maintenance for a period of 15% to 30% of the length of the marriage, which is to 2 years, 2 months to 4 years, 4 months (see DRL § 236[B][6][f][1]). Under the circumstances of this case, including the parties' access to financial resources, the equitable distribution award, the transfers of marital funds by the defendant without any documentation substantiating the nature of the transactions, and evidence of attempts by the defendant to deprive the plaintiff of her distributive share, the Court awards maintenance for a period of four years from the date of entry of the judgment of divorce.
"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 annual income adjusted for maintenance is $78,100, the defendant's annual income is $341,116, and the parties' combined parental income equals $419,216 (see DRL § 240[1-b][c][1]), of which the plaintiff's income comprises approximately 19% and the defendant's income 81%. Multiplying the combined parental income up to the statutory cap of $163,000 by the appropriate child support percentage of 29% for three children yields an annual parental child support obligation of $38,463.59, of which approximately 81% is to be paid annually by the defendant, or $3,205.30 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. The Court rejects the plaintiff's contention that a $300,000 cap is appropriate for purposes of calculating child support. There was virtually no evidence or testimony admitted at trial regarding the children's lifestyle during the marriage, except that they shared a home with numerous members of their extended family. 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, the equitable distribution award, and the modest standard of living during the marriage, the Court finds that the defendant's pro rata share of the basic child support obligation up to the statutory cap of $163,000 is just and appropriate.
In addition, 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]). The defendant is directed to pay an 81% pro rata share of statutory add-on expenses and unreimbursed health care expenses.
In accordance with the parties' June 2021 interim stipulation, the defendant shall continue paying combined maintenance and child support to the plaintiff in the amount of $2,500 per month until the closing on the sale of the marital residence. Upon the closing, the defendant shall pay maintenance to the plaintiff in the amount of $2,012.31 per month and child support in the amount of $3,205.30 per month, to be paid through the Child Support Collection Unit by the 3rd day of each month, commencing the first month after the closing on the sale of the marital residence.
The award of maintenance shall continue until the earlier of the expiration of the stated period of four years from the date of entry of the judgment of divorce, either party's death, or the plaintiff's remarriage or cohabitation within the meaning of DRL § 248. Upon emancipation of the eldest child, child support shall be recalculated.
Counsel Fees
"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 [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 [monied] 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, although the plaintiff certainly has the ability to become self-supporting, she is indisputably the less monied spouse. Furthermore, there is ample support for a determination that the defendant adopted positions throughout this litigation regarding his financial transactions and business ventures that were unsupported by credible evidence and devoid of believability.
The Court agrees with the plaintiff that the defendant's failure to comply with financial disclosure related to AP resulted in unnecessary litigation and was purposeful to prevent the plaintiff from discerning the amount of cash payments made by AP to the defendant, the belated production of records by the defendant related to AP's deposits made only in response to the so-ordered subpoena issued during the trial was deficient, the defendant and his siblings purported to change the ownership structure of Rendlen at a whim without any reasonable explanation, and the defendant engaged in numerous transactions leading up to this divorce action that depleted the marital estate, including entering into a purported post-commencement settlement agreement with his sisters. Under these circumstances, the defendant should bear the burden of paying the entirety of the plaintiff's counsel fees.
The record reveals that the plaintiff incurred $203,871.38 of counsel fees, of which the defendant has already paid $143,142.35, the plaintiff paid $35,000 toward an initial retainer and a trial retainer, and the outstanding balance of $60,846.03 remains due and owing. The defendant is directed to pay $60,846.03 to the plaintiff's attorney and $35,000 to the plaintiff within 45 days of the date of this Decision After Trial.
The defendant did not disclose the amount of counsel fees incurred by him or admit into evidence any billing invoices from his counsel.
All other claims for relief not specifically addressed herein are denied.
Accordingly, it is hereby, ORDERED that the plaintiff is granted a divorce on the ground set forth in DRL § 170(7); and it is further, ORDERED that the parties are awarded custody of the children as set forth in the so-ordered custody and parenting stipulation dated; and it is further, ORDERED that each party shall select a real estate broker, both of whom will select a third broker, who will list the marital residence for sale within 30 days of the date of entry of the judgment of divorce. 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. The defendant shall be responsible for 100% of the carrying charges of the marital residence until it is sold; and it is further, ORDERED that the plaintiff is awarded 100% of the net proceeds of the sale of the marital residence after payment of the outstanding balance of the mortgage and a separate property credit to the defendant in the amount of $25,000; and it is further, ORDERED that the plaintiff is awarded $10,250, which is 50% of the value of the defendant's ownership interest in Rendlen, to be paid within 45 days of the date of this decision after trial; and it is further, ORDERED that the plaintiff is awarded 50% of the net proceeds, if any, upon the sale of AP, after the payment of all expenses, liabilities, and receivership; and it is further, ORDERED that the marital portion of the defendant's 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; and it is further, ORDERED that the plaintiff is awarded maintenance for a period of four years from the date of entry of the judgment of divorce. The defendant shall continue paying combined maintenance and child support to the plaintiff in the amount of $2,500 per month until the closing on the sale of the marital residence, at which point the defendant shall pay maintenance to the plaintiff in the amount of $2,012.31 per month and child support in the amount of $3,205.30 per month, to be paid through the Child Support Collection Unit by the 3rd day of each month, commencing the first month after the closing on the sale of the marital residence; and it is further, ORDERED that the award of maintenance shall continue until the earlier of the expiration of the stated period of four years from the date of entry of the judgment of divorce, either party's death, or the plaintiff's remarriage or cohabitation within the meaning of DRL § 248; and it is further, ORDERED that upon emancipation of the eldest child, child support shall be recalculated; and it is further, ORDERED that the defendant shall pay an 81% pro rata share of statutory add-on expenses and unreimbursed health care expenses for the parties' children; and it is further, ORDERED that the defendant shall pay $60,846.03 to the plaintiff's attorney and $35,000 to the plaintiff within 45 days of the date of this decision after trial; and it is further, ORDERED that all other prayers for relief not specifically addressed herein are denied; and it is further, ORDERED that the plaintiff 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.