Opinion
Index No. 56581/2019
07-11-2023
V.M-J., Plaintiff, v. C.J., Defendant.
Seth D. Schraier counsel for pltf Richard J. Feinberg counsel for deft
Unpublished Opinion
Seth D. Schraier counsel for pltf
Richard J. Feinberg counsel for deft
HON. ROBERT S. ONDROVIC, J.S.C.
On March 8 and 9, 2023, a nonjury trial was held as to certain issues concerning, inter alia, equitable distribution and maintenance. After considering the sworn testimony of the parties, the credibility of the witnesses, the documents admitted into evidence, and the parties' written closing statements, the Court makes the following findings of fact and conclusions of law:
Procedural History
The parties were married on June 18, 1988, and are the parents of one emancipated child born in 1996. The plaintiff is also the parent of two emancipated children from a prior relationship, who were ages 5 and 4 when the parties married. In August 2014, the parties purchased the marital residence located in Yorktown Heights, NY. It is undisputed that the defendant left the marital residence in early 2018.
In around January 2019, a letter was sent to the defendant at the marital residence advising him that a proceeding to foreclose on the marital residence was being initiated due to nonpayment of the monthly mortgage obligation. As of March 2019, the outstanding balance of the mortgage was $52,745.74. According to the plaintiff, the defendant signed a loan modification agreement and the parties each paid $1,700 toward the mortgage for a period of three months in order to avoid foreclosure. In May 2020, a letter was sent to the defendant, once again, notifying him that a proceeding to foreclose on the marital residence would be commenced unless he cured the default by paying the amount of $14,625.72 on or before June 5, 2020.
In April 2019, the plaintiff commenced this action for divorce by filing a summons with notice. The plaintiff filed a statement of net worth (hereinafter SNW), indicating that she was employed as a nanny and a teacher's aide, and her gross income was $18,720. The plaintiff listed monthly expenses totaling $13,536, and minimal assets, which include a checking account with a balance of $1,310.
In December 2019, the defendant filed a SNW indicating that he was employed as an IT Manager by CDx Diagnostics and earned gross income in 2018 of $85,331.16. He listed monthly expenses totaling $4,902.38, and minimal assets, which include a checking account with a balance of $802.57. The defendant's liabilities include credit card debt totaling $25,000, and the mortgage on the marital residence.
In a decision and order dated November 5, 2020, the Court (Hon. Lewis J. Lubell, J.S.C.), inter alia, granted those branches of the plaintiff's motion which were for an award of temporary maintenance and directed the defendant to pay to the plaintiff $1,200 per month, retroactive to the date of the filing of the motion, an award of exclusive use and occupancy of the marital residence, and an award of interim counsel fees in the amount of $5,000 (hereinafter the November 2020 order). In reaching that determination, the Court noted, inter alia, that the parties have "limited financial resources," the plaintiff is living in the marital residence "rent free," and neither party is paying the mortgage and taxes on the marital residence, "but that plaintiff is enjoying the benefit of living there without any such costs." The Court denied that branch of the defendant's cross motion which was to compel the sale of the marital residence without prejudice to reapplication in light of the plaintiff's health issues and the ongoing Covid-19 pandemic.
NYSCEF Doc. No. 100.
Thereafter, in a decision and order dated February 25, 2022, the Court (Hon. David F. Everett, J.S.C.), inter alia, granted those branches of the plaintiff's motion which were to hold the defendant in civil contempt of the November 2020 order, fined the defendant $17,600, and awarded the plaintiff $3,850 in counsel fees (hereinafter the February 2022 order).
Upon the defendant's failure to pay the amounts owed to the plaintiff pursuant to the February 2022 order, the parties entered into a stipulation dated August 26, 2022, wherein the parties agreed that the defendant would tender a cashier's check in the amount of $8,500 and that the outstanding balance owed to the plaintiff under the February 2022 order would be paid by the defendant no later than the last day of October 2022 (hereinafter the August 2022 stipulation). It is undisputed that to date, the defendant has not paid the outstanding balance.
The Trial
At trial, the defendant testified that when the parties married, they resided in an apartment in Rye, NY. He stated that the parties moved to Houston, TX one year later because the plaintiff was "going through a custody battle, and she needed to move to protect her children." The defendant resided in Texas for a few years before moving back to New York, where he lived with his parents. The plaintiff also returned to New York and moved in with her mother.
Transcript 3/8/2023 at 19.
The defendant testified that the plaintiff is a licensed practical nurse, but mostly worked "off the books" in childcare. He did not recall whether the plaintiff contributed to the parties' living expenses. The defendant stated that it was his decision to purchase the marital residence and that he bought the home using money that was gifted to him by his father after the death of the defendant's sister. He did not recall the total amount of money that was gifted to him, but acknowledged that he received two checks from his father, one in June 2014 and the other in July 2014, in the amounts of $176,000 and $45,000, respectively. The defendant testified that the funds were deposited into his bank account, which he claimed was "the only account we had, or that I had. [The plaintiff] did not have an account." The defendant stated that his income from employment was deposited in that account, marital expenses were paid using the funds held in that account, and the parties never owned a joint account. He indicated that he still has a Chase account, but over the course of the marriage had accounts at different banks.
id. at 22.
id. at 28.
The defendant testified that he also took out a mortgage in his sole name to pay the balance of the sale price and that title to the home is held in his name. He stated that the parties and their son moved into the marital residence in August 2014. The defendant asserted that when he purchased the marital residence, it was his intention that his parents and the plaintiff's mother would also reside in the home.
The defendant testified that he left the marital residence in 2018 after receiving a phone call from the Yorktown police department instructing him to vacate the home. He stated that he was told that if he returns to the marital residence, he will be arrested. The defendant moved in with a friend who lives in New Jersey. According to the defendant, he continued paying the carrying charges on the marital residence until around 2019, when he stopped paying the mortgage, utility, oil, water, energy, and cable bills. The defendant stated that he could no longer afford to pay those expenses. He testified that the he attempted to return to the marital residence to reconcile with the plaintiff, however, the plaintiff forced him to leave. He stated, "if I didn't live there anymore, why did I need to pay them, if I'm not creating them." The defendant agreed that the plaintiff is "essentially living [in the marital residence] rent free." He added that he lost his car insurance and is now forced to rent a car because the plaintiff "committed fraud" related to a vehicle accident. The defendant testified that the cost to rent the car with insurance is $1,800 per month.
id. at 40.
id. at 79-80.
id. at 65.
The defendant acknowledged that in 2018, he went on vacation with a girlfriend to Mexico and that he spent money on her. He testified that he managed a bar at Corinthian Lodge and would deposit the cash into his account to then pay the employees via Zelle. The defendant denied that he ever used that money for personal use. The defendant testified that he opened a business called Surf and Sounds, but insisted that it never earned any income and had no employees. The defendant stated that he worked as a contractor for a company called Advanced Managed Solutions and earned sporadic income "per contract," which was deposited into his personal bank account.
id. at 57.
The defendant testified that in October 2016, he received a check from his parents in the amount of $146,000, of which $140,000 was used to pay an inheritance tax and $6,000 was used to renovate his parents' kitchen. He was unable to recall the source of a deposit made in March 2017, in the amount $67,000.
The defendant recalled that in around November 2020, he was ordered to pay maintenance in the amount of $1,200 per month, and conceded that he has not paid the full amount owed to the plaintiff. He testified that his health is poor, and that he suffers from diabetes, neuropathy, and sleep apnea. According to the defendant, both parties are responsible for the delay in selling the marital residence. He explained that he had been attempting to negotiate the amount of the outstanding mortgage on the marital residence, but had difficulty getting a response from the mortgage loan servicer. The defendant claimed that the plaintiff was refusing to allow potential buyers to view the marital residence.
The defendant asserted that his expenses are significant and that he has $30,000 in credit card debt, most of which is attributable to purchases made by the plaintiff. The defendant stated that the credit cards are in his name and the plaintiff makes no contribution toward those bills. He testified that he paid the taxes on the cash that the plaintiff received from her employment as a nanny. The defendant stated that when he learned the plaintiff was not reporting her income and was receiving unemployment benefits, he "told her she had to stop." He claimed that the plaintiff did not make any financial contributions to the parties' living expenses. The defendant stated that he paid the college expenses for the parties' son and financially supported his stepchildren without any contribution from the plaintiff.
id. at 83.
On redirect examination, the defendant acknowledged that he has not yet paid the outstanding balance owed to the plaintiff under the February 2022 order and August 2022 stipulation. He acknowledged that he has not made any payments to the plaintiff, including spousal support, since October 2022, when he paid $8,500 pursuant to the August 2022 stipulation. The defendant insisted that he has no obligation to support the plaintiff since "she threw [him] out of the house" and he "didn't choose to leave."
id. at 95.
The plaintiff testified that when she married the defendant she was working as a nanny earning $250 per week. She stated they lived together in Rye, NY for six months and then moved to Texas, where they resided for three years. The plaintiff testified that the defendant left Texas and moved to Virginia to find a job. In around 1992, the parties reconciled and they resumed living together in Mt. Vernon, NY. The plaintiff was employed by an agency known as Family Helpers and worked as a nanny.
The plaintiff testified that the parties never had a joint account and that "[the defendant's] money was [his] money." The plaintiff stated that the defendant paid for the marital residence and the parties' living expenses since he "always had a good job," and she paid for the children's medical expenses and clothing. She testified that when the parties purchased the marital residence, she was working approximately 25 hours per week as a nanny, and spent her free time as a homemaker. The plaintiff stated that she recently attained a high school degree.
id. at 114-115.
id. at 115.
The plaintiff testified that in around 2018, the defendant stopped paying all of the bills and she was forced to call the agency to seek out additional work. She asserted that the defendant left the marital residence in around February 2018, because the parties were arguing about his spending money on other women. The plaintiff stated that the defendant left the marital residence voluntarily and she never obtained a court order forcing him to leave. She testified that the parties made unsuccessful attempts to reconcile, and on one occasion she had to call the police when the defendant "proceeded to beat the [bedroom] door in." The plaintiff contended that she has never stopped the defendant from returning to the marital residence.
id. at 122.
The plaintiff testified that the defendant was always responsible for paying the mortgage. She stated that the mortgage went into foreclosure in around 2019, but in 2020, each party began contributing approximately $1,732 per month toward the mortgage in order to get it out of foreclosure. The plaintiff asserted that she had to borrow money from family to make those payments and has received financial support from her children. She testified that she suffers from rheumatoid arthritis, a heart murmur, diabetes, and dental issues.
On cross examination, the plaintiff testified that her annual income increased from $18,000 to $22,000 since November 2020. She asserted that once she receives certain certifications, she expects her income to increase to $24,000. The plaintiff stated that her health conditions do not prevent her from working.
The plaintiff acknowledged that the defendant pays for her medical insurance, she does not contribute toward payment of the mortgage, and she uses her income to pay her living expenses. According to the plaintiff, many potential buyers came to the marital residence to look at the property, but she had no authority to accept or reject any offers. She testified that the defendant paid the taxes on her income and that she received a W2 from Family Helpers. The plaintiff stated that she is presently employed by Clearview Treatment School and works 35 hours per week.
The plaintiff claimed that she contributed to household expenses during the marriage, including clothing, furnishings, and groceries. When the defendant resumed the witness stand, he denied ever receiving money from the plaintiff. He claimed that the plaintiff paid for food for herself.
Closing Statements
In a closing statement, the plaintiff's attorney argued that the plaintiff is entitled to a judgment of divorce pursuant to DRL § 170(2) because the evidence demonstrated that the defendant abandoned the plaintiff for a period of over one year. He emphasized that after the defendant vacated the marital residence, he refused to pay any household bills including, utilities, landscaping, oil, cable, and the mortgage. The plaintiff's attorney asserted that the plaintiff was not responsible for any delay related to the sale of the marital residence. Rather, he contended that the delay was caused by the defendant's "complete disregard for all matters relative to the physical and financial standing of the property."
NYSCEF Doc. No. 163.
The plaintiff's attorney argued that with the exception of one deposit in June 2014 in the amount of $174,000, the defendant failed to demonstrate that any of the funds deposited into his accounts should be considered separate property. He asserted that those funds lost their separate character when they were commingled with marital property. The plaintiff's attorney insisted that the defendant lacked credibility and that his testimony that he continued paying the mortgage up until around March 2020, is contrary to the evidence which demonstrates that he has not made a payment since July 2018. He further noted that the defendant's testimony that he has only one bank account is belied by the evidence which shows that he had accounts at JP Morgan Chase, Fidelity, and TD Bank. The plaintiff's attorney also contended that the defendant wastefully dissipated martial assets by allowing the marital residence to go into foreclosure and spending substantial sums of money on extramarital affairs.
In conclusion, the plaintiff's attorney argued that the plaintiff is entitled to an award of maintenance in the amount of $2,385.54 for a period no less than 10 years, retroactive to the date of commencement and an award of counsel fees in the amount of $20,000. The plaintiff's attorney further argued that excluding the $176,000 gifted to the defendant from his father, the plaintiff was entitled to the total amount of the remaining net equity given the defendant's wasteful dissipation of assets.
In a closing statement, the defendant's attorney argued that the defendant was forced to vacate the marital residence after the plaintiff made baseless claims to the police and had to rent an apartment costing $2,000 per month, whereas the plaintiff has remained living in the marital residence "rent free." He noted that the defendant was forced to incur the cost of renting a vehicle because he does not qualify for insurance after the plaintiff purportedly attempted "to make illicit money on an insurance issue after she crashed her car." The defendant's attorney contended that the defendant's maintenance arrears could have been paid from his share of the sale proceeds of the marital residence, however, the plaintiff thwarted efforts made by the brokers to show the home to potential buyers. He argued that the defendant, with the help of counsel and Judge Everett, attempted to contact the mortgage loan servicer to negotiate a loan modification, but was unsuccessful.
NYSCEF Doc. No. 162.
id.
The defendant's attorney stated that the testimony adduced at trial does not support an award of maintenance and proposed that the defendant's interest in the marital residence be transferred to the plaintiff and that the Court enter a judgement against the defendant in the amount of $8,500, representing the maintenance arrears he owes to the plaintiff.
Conclusions of Law
Grounds for Divorce
In the summons with notice filed on April 29, 2019, 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. Although the plaintiff contends in her closing statement that the grounds for a divorce under DRL § 170(2) "are enumerated within the complaint and specifically include the Defendant's abandonment of the marriage," the record demonstrates that the defendant did not serve a demand for a complaint and no complaint was ever filed. A notice of appearance and SNW were filed on behalf of the defendant in December 2019.
NYSCEF Doc. No. 163 at 1.
The parties' sworn testimony at trial, as detailed above, sufficiently demonstrated that the marriage had irretrievably broken down for a period of at least six months. Accordingly, 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]).
The only significant asset at issue in this case is the marital residence, which was purchased in August 2014. The evidence adduced at trial demonstrated that the parties never shared a joint bank account, the plaintiff did not deposit any income earned by her in the defendant's account, the plaintiff made no financial contribution toward the purchase of the marital residence, and the defendant bought the home using, in part, money that was gifted to him by his father after the death of his sister, which was deposited into the same account funded with income from his job.
The evidence further established that the defendant took out a mortgage in his sole name to pay the balance of the sale price and that title to the home is held in his name. The defendant does not dispute that during the marriage he was responsible for paying all of the carrying charges of the marital residence, including the mortgage, utilities, and taxes, and that he stopped paying those bills at some point after he vacated the marital residence since "if I didn't live there anymore, why did I need to pay them, if I'm not creating them." The defendant also testified that he could no longer afford to pay those expenses given that he now has to pay rent to live elsewhere and also has to rent a car. The plaintiff, who continues to reside at the marital residence, testified that she receives financial assistance from family and friends to pay certain expenses including landscaping, utilities, and oil bills.
NYSCEF Doc. No. 160 at 40.
It is clear that neither party has the financial ability to pay the expenses associated with the marital residence. The evidence in the record demonstrated that a foreclosure proceeding was initiated in around January 2019, due to nonpayment of the monthly mortgage obligation. The defendant signed a loan modification agreement in around December 2019 and the parties each paid $1,700 toward the mortgage between October 2019 and December 2019, to avoid foreclosure. Nevertheless, a few months later in May 2020, a letter was sent to the defendant notifying him that a proceeding to foreclose on the marital residence would be commenced unless he cured the default by paying the amount of $14,625.72 on or before June 5, 2020. Both parties testified at trial that they have not made any payments toward the mortgage and taxes. The record demonstrates that the defendant's attorney sent four letters to the mortgage loan servicer between January and April 2022 in an attempt to negotiate a payoff amount, however, no evidence was offered at trial regarding the current status of the marital residence or whether there is any remaining equity in the home.
After consideration of the relevant statutory factors, including, inter alia, the duration of the marriage, the limited financial resources of the parties, the plaintiff's minimal earning potential, the defendant's abandonment of his financial responsibilities toward the marital residence after he vacated the home, and his admitted failure to pay his maintenance obligation as those payments became due (see Domestic Relations Law § 236[B][5][d]), the Court orders that the marital residence be sold and the plaintiff is awarded 100% of the net sale proceeds, if any.
The marital residence shall be listed on the market for sale with a real estate broker mutually agreed upon by the parties within 30 days from the date of entry of the judgment of divorce. If the parties cannot agree on a broker, each party shall select a broker, both of whom will select a third broker, who will list the marital residence for sale. The parties shall accept any offer within 5% of the asking price. If the marital residence does not sell at the asking price within 60 days, the parties shall adjust the asking price as recommended by their broker.
It is undisputed that the parties do not share a joint bank account and that the defendant's income from his employment and certain other monies during the marriage were deposited into an account held in his name, from which he paid for the parties' marital expenses. Based on the defendant's testimony that he has had "many different bank accounts since [the parties were] married for 30 years," including accounts at JP Morgan Chase Bank, Fidelity, and TD Bank, the Court directs that the marital portion of any account held in the defendant's name be divided equally between the parties, subject to the defendant's receipt of a separate property credit in the amount of $176,000, based on the value of the account(s) as of the date of commencement of this action. In her closing statement, the plaintiff explicitly acknowledges that "[t]he Defendant should be given a credit for the $176,000 separate property contribution that was a gift from his father," which was used, in part to purchase the marital residence (see Palazolo v Palazolo, 200 A.D.3d 700, 701 [2d Dept. 2021]).
id. at 29.
NYSCEF Doc. No. 163 at 18.
The plaintiff failed to meet her burden of demonstrating by a preponderance of the evidence that the defendant committed wasteful dissipation of marital assets by purportedly delaying the sale of the marital residence to justify an award to her in the arbitrary amount of $75,000 (see Renck v Renck, 131 A.D.3d 1146, 1150 [2d Dept. 2015]). Furthermore, there is insufficient evidence in the record substantiating the plaintiff's assertion that the defendant dissipated marital assets on extramarital affairs.
Maintenance
The defendant does not raise a factual dispute or the existence of any defense regarding his failure to pay the outstanding balance of $8,500 owed to the plaintiff under the February 2022 order and the August 22, 2022 stipulation. Therefore, the defendant is directed to pay to the plaintiff the amount of $8,500 within 60 days of the date of this Decision After Trial.
Furthermore, the defendant admittedly has not made any payments to the plaintiff since October 2022, when he paid $8,500 pursuant to the August 2022 stipulation. Although the defendant is seemingly under the impression that he has no obligation to pay maintenance to the plaintiff because "she threw [him] out of the house," there is an extant order pursuant to which he is obligated to pay to the plaintiff $1,200 per month. In the February 2022 order, the Court determined that the defendant owed $12,600 to the plaintiff in temporary maintenance for the 10 ½ month period between September 23, 2020 and August 9, 2021. Therefore, for the period between August 9, 2021 and the date of this Decision After Trial, the defendant owes to the plaintiff an additional $27,600 in temporary maintenance arrears, to be paid within 60 days of the date of this Decision After Trial.
NYSCEF Doc. No. 160 at 95.
In the event that the aforementioned arrears owed by the defendant, totaling $36,100, cannot be satisfied, the plaintiff shall be entitled to a money judgment against the defendant pursuant to DRL § 244 for the amount of the outstanding arrears, together with costs and disbursements.
For purposes of calculating the defendant's post-divorce maintenance obligation, the Court notes that the defendant's annual gross income as reported on his 2021 W-2 Earnings Summary, which was admitted into evidence at trial as exhibit 11, was $101,827.01. The Court accepts the plaintiff's testimony that her annual gross income working at Clearview Treatment School is $22,000. No evidence was adduced at trial to support an imputation of any additional income to the plaintiff.
The defendant's maintenance obligation up to the income cap is $2,012.31 per month (see DRL § 236[B][6][c]). However, for the same reasons set forth in the November 2020 order, including the financial circumstances of the parties, that neither party had been paying the mortgage and taxes on the marital residence, yet the plaintiff continues to reside at the marital residence, whereas the defendant pays rent in the amount of $2,000 per month, the defendant's obligation to pay maintenance in the amount of $2,012.31 will commence upon the closing on the sale of the marital residence. Until such time, the defendant is directed to abide by the November 2020 order and pay maintenance to the plaintiff in the amount of $1,200 per month.
Furthermore, under the circumstances of this case, and considering the length of the parties' marriage, the parties' respective ages and health issues, their modest standard of living during the marriage, and the plaintiff's limited earning potential and access to financial resources, the Court awards maintenance for a duration of 10 years, 9 months retroactive to the date the application for maintenance was first made, which, in this case, was September 23, 2020 (see DRL § 236[b][6][f][1]). In reaching this determination, the Court has considered the irrefutable evidence that the defendant was the breadwinner of the family during the parties' 30-year marriage, the defendant historically paid for all living expenses, including the mortgage, taxes, and utilities, with little to no financial contribution from the plaintiff, and the significant disparity in the parties' respective incomes. The Court has also considered that although the defendant voluntarily left the marital residence in 2018, the record reflects that he felt compelled to leave based upon the intense acrimony between the parties, as well as an incident which led to police intervention.
The award of maintenance shall continue until the earlier of the expiration of the stated period, either party's death, or the plaintiff's remarriage or cohabitation within the meaning of DRL § 248.
Counsel Fees
In her closing statement, the plaintiff asserts that she is entitled to an award of counsel fees in the amount of $20,000 "[g]iven the contempt finding of Judge Everett, and applications needed through the pendency of this proceeding to enforce orders to pay attorney fees, in addition to the fact that the Defendant is clearly the monied spouse."
NYSCEF Doc. No. 163 at 18.
"An award of an attorney's fee pursuant to Domestic Relations Law § 237(a) is a matter within the sound discretion of the trial court, and the issue 'is controlled by the equities and circumstances of each particular case'" (Chaudry v Chaudry, 95 A.D.3d 1058, 1059 [2d Dept. 2012], quoting Morrissey v Morrissey, 259 A.D.2d 472, 473 [2d Dept. 1999]). By statute, there is "a rebuttable presumption that counsel fees shall be awarded to the less monied spouse" (DRL § 237[a]). "In determining whether to award final counsel fees at the end of trial, a more detailed inquiry is warranted and the court must 'review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions'" (Duval v Duval, 144 A.D.3d 739, 743 [2d Dept. 2016], quoting DeCabrera v Cabrera-Rosete, 70 N.Y.2d 879, 881 [1987]).
Since the plaintiff failed to submit any evidence at trial, such as detailed billing records and invoices from her attorney, concerning the amount of counsel fees incurred by her during this action, her request for an award of final counsel fees is denied. Although the plaintiff's counsel offered to submit, post-trial, "a final timesheet," the parties never stipulated that a determination on the issue of counsel fees could be made based upon submission in lieu of a hearing (c.f. Levy v Levy, 4 A.D.3d 398, 399 [2d Dept. 2004]; Devino v Devino, 2 A.D.3d 483, 484 [2d Dept. 2003]).
The plaintiff was previously awarded $5,000 in interim counsel fees pursuant to the November 2020 order; upon holding the defendant in civil contempt, the defendant was fined in the amount of $17,600, which included the $5,000 interim counsel fee award which he failed to pay; and the plaintiff was also awarded counsel fees in the amount of $3,850 for having to file a contempt motion.
id.
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 marital residence shall be listed on the market for sale with a real estate broker mutually agreed upon by the parties within 30 days from the date of entry of the judgment of divorce. If the parties cannot agree on a broker, each party shall select a broker, both of whom will select a third broker, who will list the marital residence for sale. The parties shall accept any offer within 5% of the asking price. If the marital residence does not sell at the asking price within 60 days, the parties shall adjust the asking price as recommended by their broker; and it is further, ORDERED that the plaintiff is awarded 100% of the net proceeds of the sale of the marital residence; and it is further, ORDERED that that the marital portion of any account held in the defendant's name be divided equally between the parties based on the value of those accounts as of the date of commencement of this action, subject to the defendant's receipt of a separate property credit in the amount of $176,000; and it is further, ORDERED that the defendant shall pay to the plaintiff arrears totaling $36,100 within 60 days of the date of this Decision After Trial. In the event that the defendant is unable to satisfy the aforementioned arrears within the prescribed time, the plaintiff shall be entitled to a money judgment against the defendant pursuant to DRL § 244 for the amount of the outstanding arrears, together with costs and disbursements; and it is further, ORDERED that the defendant shall pay maintenance to the plaintiff in the amount of $1,200 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. The award of maintenance is for a period of 10 years, 9 months retroactive to the date the application for maintenance was first made, which, in this case, was September 23, 2020; and it is further, ORDERED that the award of maintenance shall continue until the earlier of the expiration of the stated period, either party's death, or the plaintiff's remarriage or cohabitation within the meaning of DRL § 248; and
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.