Opinion
07-30-2024
William N., Plaintiff, v. Lauren N., Defendant.
For Plaintiff: Lauren Crane, Esq., Morgan Mazor, Esq., Bender & Crane LLP For Defendant: Neil Cahn, Esq.
Unpublished Opinion
For Plaintiff: Lauren Crane, Esq., Morgan Mazor, Esq., Bender & Crane LLP
For Defendant: Neil Cahn, Esq.
DOUGLAS E. HOFFMAN, J.S.C.
Following a financial trial in this matrimonial action, the court sets forth below its findings of fact and conclusions of law. Plaintiff William N. ("Plaintiff", "Husband" or "Father"), commenced this action against Defendant Lauren N. ("Defendant", "Wife" or "Mother"), on October [redacted] 2019. The parties were married on [redacted], 2006 and have two minor children, [redacted]. After extensive negotiations and motion practice, the parties settled the issues of legal and residential custody in May 2022 [Pl. Exh. 8].
The parties, each represented by counsel, agreed to waive spousal maintenance. As the parties did not resolve child support or equitable distribution, the matter was set down for trial. The parties stipulated to direct examination of each party by affidavit, with the opportunity to supplement the direct examination by affidavit with live testimony, followed by live cross examination, live redirect examination and live recross examination. The trial took place in May and June 2024. The parties then submitted post-trial memoranda. This decision and order follows.
THE PARTIES' RELEVANT PROFESSIONAL BACKGROUND AND EMPLOYMENT/EARNINGS HISTORY
Plaintiff graduated from [redacted] in 2001 [Direct NYSCEF Doc. 360 at p. 2]. He was first employed at [redacted], earning approximately $125,000 annually [Direct p. 2]. His salary decreased after he left [redacted]. When he accepted a position as [redacted] his starting annual salary was $95,000 [Direct p. 2]. He worked at the [redacted] for the ensuing ten and one-half years, [Direct p. 2], receiving regular salary and step increases, then obtaining a position as [redacted] [Direct p. 2-3], earning $150,000 annually [Direct p. 3]. As of Fall 2023, his salary for this position was $175,000 annually [Direct. P. 3]. In 2023, he obtained a second position, as a [redacted]. His adjusted gross income for 2023 was $182,048. Plaintiff remained employed in these capacities and apparently at these rates of pay through the 2024 trial.
Defendant commenced her studies for a graduate [redacted] degree prior to her marriage and was awarded [redacted] in October 2007 [NYSCEF Doc. 362, p. 6, Wife Supp. Direct], approximately one year after the parties married. She became employed full-time by the [redacted] as a [redacted]. [Direct p. 7]. [Wife] worked full-time [redacted] until just before the parties' first child was born [Direct p. 7]. Defendant became [redacted] in 2010 [Direct p. 8]. She then worked part-time from April 2010 to May 2011 until just before their second and youngest child was born [Direct p. 7].
Following the birth of the parties' daughter, Defendant returned to work in 2013 as a [redacted] [Direct p. 8]. In 2015 (Plaintiff testified that it was 2016), [Wife] stopped working for [redacted] and started [her own practice]. Her net practice income was $20,409 in 2015, $44,236 in 2016, $131,076 in 2017 [Direct pp. 9, 11, Pl. Exh. 27, Sched. 1], and $165,593 in 2018 [Direct p. 12, Pl. Exh.15]. In 2022, her net business income was $253,597 [Direct p. 16].
THE PARTIES' MOST SALIENT FINANCIAL TRANSACTIONS DURING THE MARRIAGE HOUSING ACCOMMODATIONS AND PAYMENT FOR EXPENSES
From the date of marriage to date of commencement of this divorce action, and thereafter, the parties have struggled financially. To both of their credit, they have, with significant financial and childcare assistance from Defendant's mother, managed to raise their children in a supportive home environment, living in homes in Queens and suburban Long Island, and providing for all of the children's physical, emotional and educational needs, while working full time jobs.
At the time of their marriage until 2014, the parties lived in [grandmother's] home in Queens (Pl. Direct p. 5), where Wife grew up [Def. Direct p. 5]. According to Plaintiff, the parties paid for groceries, dining out, car payments and related expenses, both parties' student loan payments, childcare expenses and clothing. [Pl. Direct p. 5]. Plaintiff averred that the parties purchased groceries for the household, [Pl. Direct at 5], but did not specify what portion of the grocery bills they paid. The parties did not pay rent or any of the carrying costs or other expenses for the home [Def. Direct p. 7]. Defendant testified that the parties did not pay for any of the utilities, home maintenance or other household bills, all of which [the maternal grandmother] paid, [Def. Direct p. 7], and that she contributed to the parties' food. Plaintiff testified that any payments the parties made came from his income as Defendant was not employed at that time. The family also had childcare expenses [Pl. Direct p. 6] and incurred significant pre-school tuition for [Pl. Direct p. 6].
With very limited funds and much debt, discussed infra, the parties faced very significant obstacles in finding their own home, which they decided to do in 2014. The maternal grandmother agreed to sell her home in Queens in 2014. From the proceeds of that sale, the grandmother gifted to Wife $700,000 [Pl. Direct p. 7] for Wife to acquire as a tenant in common 80% of the house purchased at [redacted] Nassau County, New York, in 2014 [Deed Def. Exh. Q]. The total purchase price of the house was $883,000. The parties acquired the remaining 20% of the house as tenants by the entirety by utilizing a mortgage from Wells Fargo Bank in the amount of $200,000 [Def. Direct at 8, Def. Exh. R]. The parties were able to obtain the mortgage based upon Husband's positive credit rating. The maternal grandmother moved in with the parties [Def. Direct p. 8], and made very substantial payments for household expenses [Def. Direct p. 8], according to Wife. Husband characterized the renovations as "minor" [Pl. Direct p. 7].
The carrying costs for the house were about $4,000 per month [Pl. Direct p. 7]. Husband testified that from 2014-17 the carrying costs were paid mainly from his income. The Wells Fargo mortgage statements indicate that as of May 2, 2024, the mortgage balance was $160,752.19 [Def. Exh. AF].
THE HOME EQUITY LINES OF CREDIT (HELOC) AND PENSION LOAN
[Wife] testified that about six months after purchasing their house in Nassau County, she learned for the first time that the parties had other debts, as Husband told her that they needed $10,000 to pay taxes on her income [Def. Direct p. 9]. On or about April 2015, the parties obtained a HELOC with a $50,000 limit through Wells Fargo Bank [Def. Direct p. 9] and used that to pay the tax debt. Defendant testified further that in Spring 2018 she learned that Plaintiff had amassed much additional debt and had made withdrawals from the HELOC that exhausted the $50,000 line of credit [Def. Direct p. 11]. At the same time, Defendant stated, she learned that the parties owed $46,960 for 2017 taxes because the parties underestimated the quarterly monthly taxes from Defendant's business income [Def. Direct p. 11].
To address these immediate financial issues, the parties agreed to replace the Wells Fargo $50,000 credit limit HELOC with a new HELOC from Bethpage Federal Credit Union in June 2018 with a $100,000 credit limit [Def. Direct p. 11]. Husband also borrowed $31,214 against his [retirement] [Def. Direct p. 11, Def. Exh. N]. By the end of 2018, the parties had used $91,156.61 of their $100,000 credit line [Def. Direct p. 12, Def. Exh. J, p. 192]. The HELOC disbursement schedule is set forth in Pl. Exh. 33. The HELOC funds were used to pay income tax arrears, credit card debt and family living expenses. On the other hand, Husband had reduced the debt on his pension loan to $26,472.88 as of March 31, 2019 [Def. Direct p. 12, Def. Exh. N]. The HELOC balance has been $91,052.37 since Aug. 31, 2023 [Def. Exh. AZ]. After Husband moved from the marital residence, he ceased any payments toward the outstanding HELOC [Def. Direct p. 16].
It was in late 2018 that the parties started discussing divorce and each hired counsel to seek to negotiate a resolution. [redacted] The parties have agreed that the divorce cause of action is based upon an irretrievable breakdown of the marital relationship, DRL § 170(7).
STUDENT LOANS, WIFE'S INHERITANCE, LOAN FROM MS. McCORMICK
To obtain his law degree Husband took out two separate federal and four separate private student loans. [Pl. Direct p. 12]. As of the date of marriage, Husband's student loan debt was $122,255.10 [Def. Exh. AF]. He was in charge of the parties' finances during the marriage and elected to make student loan payments of approximately $700 per month or more from the parties' joint marital account at Citibank. [Pl. Direct p. 13]. From 2006-10, Husband's employment primarily funded that marital account, with Wife's income serving to supplement that account from 2011-16 [Pl. Direct p. 13]. From 2016 until the date of commencement, both parties' incomes funded the marital account, with Wife's income increasingly playing the dominant role in the funding toward the end of the marriage [Pl. Direct p. 13]. The parties paid $115,928.95 during the marriage toward Husband's premarital student loans [Def. Direct p. 19]. This reduced his date of marriage principal by $53,790.12, down from $122,255.10 to $68,464.98 [Def. Exh. AV). As of October 2021, Husband's student loans had been reduced to $53,595.99 [Pl. Direct p. 13]. Given his [eligible non-profit employment], the balance of his student loans have since been forgiven by the federal government. Defendant introduced into evidence Def. Exh. AF, a chart outlining Plaintiff's student loans.
Wife incurred a lower amount of student loans from her educational studies. As of the date of marriage, Wife's student loans totaled $77,328.03 [Def. Direct p. 6]. In addition, at Husband's request, Wife took out an additional $16,000 student loan during her last year at graduate school and turned over the proceeds of that loan to Husband to be used for the parties' living expenses [Def. Direct p. 6]. To the extent her student loans were repaid during the marriage, the monthly payments were approximately $440 [Pl. Direct p. 14]. Of the $77,328.03 in student loans Wife had as of the date of marriage, under Husband's stewardship of the parties' finances, the parties paid off only $3,653.69 of the principal during the marriage [Def. Direct p. 18], although the parties did pay $49,204.30 from marital funds during the marriage toward Wife's premarital student loans, versus $115,928.95 toward Husband's premarital student loans [Def. Direct p. 19]. When Wife's father passed away in 2012, she inherited $41,000 and used part of that sum to pay off the $16,000 loan [Def. Direct p. 6]. Defendant placed the balance of the inheritance into the parties' joint account and that balance was apparently used to pay off the parties' credit card debt [Def. Direct p. 6].
In 2009, during the marriage, Husband borrowed $40,000 from Wife's mother, to pay off credit card debt. It was not clear from the testimony how much of that sum represented pre-marital debt of Husband and how much was marital debt. Husband testified that he could not recall and Wife generally had little knowledge of the parties' finances. Husband repaid the maternal grandmother during the marriage over a period of approximately two years [Def. Direct p. 6].
PLAINTIFF'S PENSION AND DEFENDANT'S PROFESSIONAL PRACTICE
Husband joined the [redacted] retirement system [during the marriage]. Husband borrowed $31,214 against his pension prior to March 31, 2019 [Def. Exh. N]. By March 31, 2019, the pension loan had been reduced to $26,472.88 [Def. Exh. N]. One year later, the balance had been reduced to $19,672.08 [Def. Exh. AD], with reductions paid off by Husband utilizing separate post-date of commencement earnings.
The court-appointed neutral, Brisbane Consulting Group, LLC ("Brisbane"), determined that Husband's pension was worth $368,672 as of the date of commencement of this action [Pl. Exh. 27]. Johnathan Miles, a principal of Brisbane, was qualified as an expert in financial analysis of valuation of assets, in connection with matrimonial and other cases [Jun. 6, 2024 Tr. p. 6]. Mr. Miles conducted an analysis of Husband's pension and Wife's professional practice. Mr. Miles testified credibly that as of October 11, 2019, the value of Wife's professional practice was $258,200 [ See Pl. Exh. 28]. In his analysis, Mr. Miles noted that for 2019, $247,782 was available income to Wife. The expert witness took net income from 2019 Schedule C to the parties' joint tax return and added back two items that had been taken as tax deductions on that return. As Wife's business was utilized for tax purposes as "doing business as", she was considered self-employed and had to pay 1.45% Medicare tax and 6.2% social security tax as both employee and employer, thereby doubling her obligation. The court found Mr. Miles credible and credits his testimony in its entirety.
TAXES
During the marriage the parties did not withhold sufficient taxes from Wife's income and accrued significant debt to the federal and state government. As discussed supra, the parties often borrowed money to pay off income tax debt. Husband testified on cross examination that based on the parties' joint income tax return in 2017, the parties owed approximately $42,000 in federal taxes and another $5,000 in state taxes as of April 2018 when they obtained the HELOC. After Plaintiff commenced this action in 2019, the parties filed their 2019 and 2020 income tax returns as married filing jointly [Pl Exhs. 17, 19]. Per Def. Exh. AS, Wife's income tax analysis for 2019, the parties owed an average of $7,594.75 per month for the first nine months of 2019, totaling $68,352.75 for that nine-month period.
Martin Kulberg CPA testified as a lay, not expert, witness, for Wife. He did not provide an expert report prior to trial. His analysis for determining the parties' total and relative tax liability for the first nine months of 2019 was based upon determining each party's income for the first nine months of 2019. To do so, Mr. Kulberg broke down income into business and W2 income, together with any withholding by a party. Wife's business income was taken specifically out of the general ledger of the business, focusing on income, expenses and tax paid for those nine months. Mr. Kulberg then calculated the tax attributable to this income. Upon cross examination, Mr. Kulberg acknowledged that he did not seek to verify the accuracy of the general ledger of Wife's business by, for example, comparing it to available bank records or credit card records [Jun. 6, 2024 Tr. at 48-49], did not seek to verify whether the parties' withholding was proper, or what the parties' actual earnings were for that final quarter [Jun. 6, 2024 Tr. at 49]. As a lay witness, Mr. Kulberg essentially estimated the tax liability pro rated by number of months in 2019 before and after the date of commencement, and attributed the tax liability to the pre-commencement period assuming identical monthly (or daily) tax liability for each party throughout that year.
For the 2021 income tax return, Defendant declined to file jointly and both parties filed married filing separately [Pl. Dir. p. 14, Pl. Exh. 21]. Husband testified that, based upon Wife's objection to filing jointly, he incurred income tax arrears of approximately $8,400 [Pl. Direct p. 15]. Wife testified that the parties owed nearly $9,000 for 2018 income taxes [Def. Direct p. 12]. She averred that for 2022 she owed $70,511 in federal taxes, including a $1,983 penalty for paying only $6,192 in estimated taxes during that year, as well as $12,440 in New York taxes, including $549 in penalties [Def. Direct p. 16-17]. Although Husband was not involved in the business of Wife's practice in 2023, Wife accrued approximately another $90,000 in tax debt during that year as she did not pay estimated taxes on her income. Wife claimed that she did not do so because she needed the money in the event of divorce and the parties' son needed tuition to be paid.
CREDITS
Husband had approximately $25,000 in personal savings at date of commencement [Def. Direct p. 10] and Wife had no savings. There were other savings or checking accounts at date of commencement with limited funds.
EQUITABLE DISTRIBUTION
When addressing equitable distribution, the court must distribute both marital assets and liabilities of the parties. DRL § 236B (5). To do so, the court must first identify the assets and liabilities that constitute marital property and determine the values of those assets. DRL §§ 236B (1)(c); (4) (b).
Separate property is not subject to distribution. DRL § 236B (5) (b); Macklowe v Macklowe, 61 Misc.3d 1226 (A) [Sup. Ct. NY Co. 2018], aff'd, 176 A.D.3d 470 [1st Dept 2019]. "[T]he initial determination of whether a particular asset is marital or separate property is a question of law..." DeJesus v DeJesus, 90 N.Y.2d 643, 647 [1997]). Marital property is "all property acquired by either spouse during the marriage," while separate property is "property acquired before marriage or property acquired by bequest, devise or descent or gift from a party other than the spouse." DRL § 236 [B] [1] [c],[d] [1]; see also O'Brien v O'Brien, 66 N.Y.2d 576, 583 [1985]. There is a presumption that property acquired during the marriage is marital, and the burden remains on the spouse seeking to show "separate" property. In the instant case, the only significant separate property claim is the 80% of the Nassau County house which Wife and her mother own as tenants in common. Husband does not contest that this percentage of the marital residence is separate property.
As the court analyzes the parties' marital property, both separately and in the aggregate for distribution purposes, the court notes that there is no requirement that distribution of each marital asset be equal. Parker v Parker, 216 A.D.3d 433, 434 [1st Dept 2023], citing Arvantides v Arvantides, 64 N.Y.2d 1033, 1034 [1985]. "However, where both spouses equally contribute to a marriage of long duration, division should be as equal as possible." Parker, supra, citing Smith v Smith, 162 A.D.2d 346, 347 [1st Dept 1990], lv denied 77 N.Y.2d 805 [1991]. See also Jones v Jones, 227 A.D.3d 967 [2d Dept 2024] (Citation omitted). In the herein action, the parties were married for 13 years and each contributed their full income to the household, raised two children together, one with special needs, and each spent much of their non-working time caring for the children and the home. The court rejects Defendant's claim that Plaintiff did not contribute equally, or at least substantially equally, to the family and household. Although Plaintiff at times went to political or judicial events after work, those appearances were part of his attempts to advance his professional career, which, if successful, would have translated into much greater income. This is not meaningfully different from Plaintiff working to support the family while Wife obtained her Ph.D. and otherwise sought to advance her own career, again for the benefit of the entire family and household.
In enacting DRL § 236, the Legislature "sought 'to recognize the direct and indirect contributions of each spouse'" (Hartog v. Hartog, 85 N.Y.2d 36, 47 [1995], citing Governor's Approval Mem., L. 1980, ch. 281, and Assembly Mem., 1980 NY Legis. Ann., at 129-130). Hence, we have stressed that marital property should be "construed broadly in order to give effect to the 'economic partnership' concept of the marriage relationship." Price v. Price, 69 N.Y.2d 8, 15 [1986] [emphasis omitted]; Fields v. Fields, 15 N.Y.3d 158, 162-63 [2010]. New York courts have focused greatly upon the concept, fully applicable herein, of the parties to a marriage constituting an economic partnership. See, e.g., Kirshner v Kirshner, 228 A.D.3d 923, 924 [2d Dept 2024]. The parties in the instant action have accrued significant debts, as well as assets, and this court must equitably distribute both their assets and liabilities. Mahoney-Buntzman v Buntzman, 12 N.Y.3d 415, 420 [2009].
The court "is given broad discretion in allocating the assets and debts of the parties to a matrimonial action," and may consider the entirety of the marital estate in apportioning responsibility. Corless v Corless, 18 A.D.3d 493, 494 [2d Dept 2005]. "Indeed, when it comes to the equitable distribution of marital property, DRL § 236 B(5)(d) authorizes the trial court to take into account 'any other factor which the court shall expressly find to be just and proper.' Consequently, the trial court has substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances." Mahoney-Buntzman v Buntzman, supra. In determining the equitable distribution of marital property, the court must base its determination on the circumstances of the individual case and consider specific statutory factors. Rigas v Rigas, 227 A.D.3d 1017 [2d Dept 2024]. The following enumerated factors are to be considered:
"(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;
(2) the duration of the marriage and the age and health of both parties;
(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;
(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;
(5) the loss of health insurance benefits upon dissolution of the marriage;
(6) any award of maintenance under [D.R.L § 236(B)(6)];
(7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;
(8) the liquid or non-liquid character of all marital property;
(9) the probable future financial circumstances of each party;
(10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;
(11) the tax consequences to each party;
(12) the wasteful dissipation of assets by either spouse;
(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;
(14) whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts;
(15) in awarding the possession of a companion animal, the court shall consider the best interest of such animal. 'Companion animal', as used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law; and
(16) any other factor which the court shall expressly find to be just and proper."DRL § 236 (B) (5) (d).
The parties herein had a true economic partnership from its inception to the date of commencement, for better and for worse. Husband supported Wife to the extent that he could, while Wife pursued her doctorate in clinical psychology, completion of her post-doctorate fellowship, her efforts to become licensed, the establishment of her now-thriving private practice and the building of that practice. Husband entered the marriage with significant debt, but also contributed his entire paycheck to the parties' household. Plaintiff contributed to the cost of childcare so that Wife could study to obtain her degree and license. Defendant contributed mightily as well to the economic and family structure of the household. While studying, she worked to the extent possible and spent much time caring for the parties' children, often staying up late to study or work after caring for the children. The parties could not make ends meet during the marriage and Wife took out loans, contributed her separate inheritance and all of her income to the household. The maternal grandmother contributed greatly to the parties' ability to live in a supportive and nice environment and also contributed greatly to the parties' home, both while the parties' lived with the maternal grandmother in Queens and after the parties purchased their own home in Nassau County (80% of which was owned by Wife and the maternal grandmother, who moved in with them, selling her home in Queens, in part to facilitate the Nassau County purchase). The court has considered Husband's much greater income at the date of marriage, during most of the marriage, and the Wife's greater income at time of commencement of this divorce action, as well as the probability that for the foreseeable future Wife's income will very meaningfully exceed that of Husband. There is no evidence that the parties' health should influence the distribution of marital property. Although Wife needs to occupy the former marital residence, as she has primary residential custody, and the children need the stability of their Nassau County home, she has testified that Husband has much of the furnishings that the parties enjoyed during their marriage.
Husband's pension plays an important role in the distribution process, as, without Wife being provided with a portion of Husband's pension, she would lose all rights to that pension after divorce. In addition, Wife does not have any pension, retirement savings or any asset other than the parties' former marital residence, the value of which is being shared through this order. The maternal grandmother, however, has gifted Wife at least $700,000 to facilitate the purchase of the Nassau County home. Throughout the marriage, both parties and the children have been insured through Husband's employment, with Husband paying all of the premiums for this valuable coverage. The health insurance for the children will be addressed, infra. After the judgment of divorce is entered (and presumably, Wife will no longer be eligible to continue to be enrolled in Husband's employer-sponsored plan, see DRL 255), Wife will have to spend a very substantial sum monthly to obtain her own health insurance. Wife's estimated cost of her future insurance varied during her testimony and the cost presumably would be paid through insurance obtained through her private business. Both parties have waived maintenance. Husband's contributions to the marital residence are described in the sections addressing that residence. There is almost no liquid marital property. The parties will divide marital tax liability, as set forth below.
As the court has found, this marriage has truly been an economic partnership, even if the financial aspect of that partnership has not been particularly successful, certainly in the eyes of at least one of the parties. Under these circumstances, given both parties' full, although different, contributions to the well-being of the family, the court finds it appropriate to divide all substantiated marital assets and debts on a 50/50 basis, Hofmann v Hofmann, 173 A.D.3d 531, 532-533 [1st Dept 2019], subject to certain upward or downward adjustments based on payments or debits concerning a particular asset or debt. See Jones v Jones, 227 A.D.3d 967 [2d Dept 2024].
ALLEGED WASTEFUL DISSIPATION
The party claiming wasteful dissipation of marital assets, which Defendant herein does to some extent, bears the burden of proving that claim. Kirshner, supra. Despite contributing all of their incomes and assets to the joint household, the parties still could not make ends meet. Although credit card and other debt increased, there is no evidence that either party overspent, was lavish or wasteful, or acted recklessly or in bad faith. Parker v Parker, supra, 216 A.D.3d at 435, citing Grunfeld v Grunfeld, 255 A.D.2d 12, 22 [1st Dept 1999], mod. on other grounds, 94 N.Y.2d 696 [2000]. Thus, there is no basis for the court to adjust equitable distribution based on a claim of dissipation of marital assets.
Although Wife claims that Husband kept her in the dark concerning their debt, she actively participated with Husband to refinance their debt to pay it off more quickly [May 22, 2024 Tr. p. 43]. Moreover, Wife consciously delegated financial decision making to Husband. She did not review her own business's bank statements or their joint bank statements, leaving all financial decisions to Husband, and did not make any financial decisions without consulting with Husband. There was no allegation that was due to any domestic or intimate-partner violence, and instead, was a choice made by this couple during their then-intact marriage. This choice is in no manner a criticism of Wife, who was the primary caregiver for the children, ran the day-to-day household and worked to the maximum extent practicable given the demands of the family. This is not an uncommon scenario within a family, with one parent having primary or even near-exclusive financial responsibility. The parties shared childcare responsibilities, although Wife was the primary childcare provider both because she was more available to do that and as a result of the parties' choice as a family to divide responsibilities in this manner. Husband contributed substantially to childcare. When he returned from a full day at work, Husband assumed childcare responsibilities. The point is that this was a full economic and marriage partnership.
As often occurs in such a situation where a couple needs financial assistance, family stepped in. The parties moved in with the maternal grandmother, who paid housing costs and many other items, even after the parties moved into the Nassau County house. Family assistance here is not a compensable aspect of the equitable distribution analysis. The court addresses next specific marital assets and liabilities.
HOUSE IN NASSAU COUNTY/MORTGAGE CREDIT
As noted, supra, the parties purchased the Nassau County home for $883,000, with the parties contributing $200,000 of that cost through a mortgage from Wells Fargo Bank. By agreement, the parties had a 20% ownership interest as tenants by the entirety (and the remaining 80% is owned by Wife and her mother as tenants in common). For purposes of the trial, the parties agreed to value the entire Nassau County house at $1,225,000. The parties' 20% interest is therefore now worth $245,000 ($1,225,000 x.20). The mortgage balance as of date of commencement was $176,301.65, leaving a net interest of the parties in the house as of date of commencement, subject to the HELOC, of $68,698.35.
The court declines to follow Husband's proposed formula to award him credit for the equity in the Nassau County house. Husband's formula seeks to utilize the entire value of the house of $1.225 million as the basis for the calculation of credit, rather than the parties' 20% interest, by deducting off the top the $160,752 mortgage balance and the $91,157 HELOC balance. The parties' interest is only in the 20% of the value of the home, minus their own liabilities of 100% of the mortgage and HELOC. As the parties have a $245,000 interest in the house, and the parties' liabilities against that interest total $251,909 ($160,752 mortgage plus HELOC of $91,157), the net interest of the parties' in the house is -($6,909) as of date of commencement.
Wife seeks additional credit for being the sole payor of the mortgage for the marital residence after Husband vacated the marital residence on or about November 1, 2020. "'[G]enerally it is the responsibility of both parties to maintain the marital residence during the pendency of a matrimonial action.'" Savino v Savino, 218 A.D.3d 504, 505 [2d Dept 2023], quoting Hymowitz v Hymowitz, 119 A.D.3d 736, 741 [2d Dept 2014]. "'Where a party has paid the other party's share of what proves to be marital debt, such as the mortgage, taxes, and insurance on the marital residence, reimbursement is required.'" Savino, supra [ quotation omitted ]. See also Binnmyr v Binnmyr, 226 A.D.3d 498, 508 [1st Dept 2024]. After Husband moved out of the marital residence, he ceased contributing to payments for either the mortgage, property taxes or the HELOC. Wife seeks a credit for her payments toward both the mortgage, property taxes (which were escrowed as part of the monthly mortgage payment) and the HELOC from November 2020 through the date of trial. The balance on the mortgage was $160,752.19 as of May 2, 2024. From the time Husband vacated the marital residence, Wife has alone paid principal and interest, property taxes, utilities and other expenses of the home without contribution from Husband. Wife claims to have paid $41,679.90 in mortgage payments and $14,123.88 in HELOC payments since the date of commencement and seeks credit for these payments.
Generally, a spouse may be entitled to credits for post-date of commencement payments for the mortgage and property taxes for the former marital residence. Lorne v Lorne, 217 A.D.3d 412, 414 [1st Dept 2023]; McKay v Groesbeck, 117 A.D.3d 810, 811-12 [2d Dept 2014]. Defendant's Exhibit V is a composite of monthly payments for the residence starting in 2019. The monthly escrow for property taxes varied over the years, but the principal and interest together were fixed at $969.30 per month, with property tax escrow exceeding $2200 per month. The mortgage appears to be at a fixed rate of 4.125%. The payments appear to encompass 100% of the large monthly property taxes. As the marital share of the house encompasses only 20% of the residence, any credit would focus upon the marital 20% of the property tax payments and 100% of the mortgage principal and interest payments. However, Husband is paying for his own home, where the children stay with him during his parenting time, at a cost equal to or in excess of that which Wife is paying for her share of the marital residence. With respect to the parties, Wife has enjoyed exclusive possession of the former marital residence since Husband vacated the home more than 3 ½ years ago. Her monthly payments for the home, where equity presumably continues and will continue to accrue based upon market forces and payments of principal, is no more than Husband's monthly rent payments. Given her exclusive use of the residence during the period in question, any credit given to Wife would mean that Husband is subsidizing Wife's exclusive use of the marital residence when their "real" housing costs are comparable. Under these circumstances, the court declines to provide credit to Wife for her mortgage and other housing-related payments following Husband's vacatur of the marital residence.
As part of the disposition of this action, Wife seeks an order permitting her to obtain Husband's half of the 20% marital interest in the marital residence. Defendant wishes to take full title, subject to the marital mortgage, and requests three years to refinance to take advantage of what she anticipates will be lower interest rates. Wife shall have 18 months to refinance the mortgage or take other appropriate steps to remove Husband from the mortgage for the Nassau County home. Until the mortgage is refinanced, Wife shall have the obligation to pay the monthly amounts due (mortgage, fees, and taxes) with no contribution from Husband, and shall indemnify Husband for any unpaid amounts or related fees or taxes.
CREDIT FOR HELOC
Credit for Wife's payment of the Bethpage HELOC presents a very different analysis. Wife seeks a credit for 50% of her principal and interest payments toward the most recent HELOC for the period subsequent to Husband's vacatur of the marital residence, after which he did not pay any amount toward that line of credit balance. Defendant's Exhibit J sets forth Wife's HELOC payments during this time period. As of the date of trial, the balance on the HELOC is $91,052.37. From date of Husband's vacatur through date of trial, Wife has made all payments toward the HELOC. These payments total $14,123.88. None of the $91,052.37 balance on the HELOC and Wife's payments of $14,123.88 went toward improvements on the marital residence; rather, the HELOC withdrawals were utilized exclusively for payment of joint income tax obligations and other marital expenses. The HELOC debt and payments are the equivalent of common credit card debt for marital expenses. Such payments should be shared on a 50/50 basis. Each party is responsible for one-half of the $91,052.37 HELOC balance, or $45,026.18. Husband must reimburse Wife for one-half of her $14,123.88 HELOC payments post-vacatur, or $7,066.94.
WIFE'S PROFESSIONAL PRACTICE
Husband seeks an award of half of the value of Wife's professional practice based upon the income stream available to her. As noted, supra, Brisbane valued the practice at $258,200 as of date of commencement. The court found Mr. Miles testimony highly credible and persuasive and there is no expert or other credible other testimony to contradict the Brisbane valuation, which painted a complete picture of the finances of Wife's practice. Although there is no uniform rule to fix the value of a professional business for purposes of equitable distribution, the court is guided by the expert testimony here. See McGovern v McGovern, 218 A.D.3d 1067, 1070-1071 [3d Dept 2023] (Citation omitted).
Although Husband may have taken steps to assist in the establishment of Wife's practice, his contributions were primarily administrative in nature. Suggesting a name for the practice may have been helpful, albeit impossible to quantify. Obtaining the paperwork to set up the practice, assisting with procuring insurance and consulting with the parties' accountant as to how to set up the business, [May 9, 2024 Tr. at 98-99] may have been helpful; however, if done by an outside professional likely would have cost at most a couple of thousand dollars for a few to several hours. Plaintiff's handling of the business accounts certainly would have taken time, although how much time is not known. It is also not clear what "handling" of the accounts entailed and whether it required any special expertise. Defendant performed the work of the business, sacrificed business early on to ensure that the children's needs were met and worked very long hours to ensure a solid and enduring client base. There is no credible testimony that Husband's efforts "grew" the business in any manner or contributed substantively to patients' satisfaction with and loyalty to Wife's practice. Furthermore, none of Husband's efforts were at the expense of his own professional career or child-rearing time.
On the other hand, Wife used marital assets for the start-up funds. Husband contributed to Wife's business development to the extent that he could as part of an integrated family unit, where both spouses did what they could to support and promote the careers of the other person while jointly handling all childcare responsibilities and working to the extent possible consistent with those childcare responsibilities. As the court stated, supra, this marital economic partnership was such that an equal division of marital assets, including Wife's now very successful business practice, and marital debts, is appropriate. Thus, Husband shall be entitled to one-half of the assessed marital value of Wife's practice, $129,100. As the valuation of Wife's practice was based in substantial part on her income stream, the award to Husband effectively translates to a portion of Wife's income stream. This will be taken into consideration when evaluating child support.
HUSBAND'S PENSION
Husband is a participant in [pension], which he joined [during the parties' marriage]. Brisbane Consulting Group LLC, as a neutral, determined the date of commencement present value of Husband's pension to be $368,672 [Pl. Exh. 26]. Wife seeks an award of 50% interest in the 166-month coverture portion of the pension, Majauskas v Majauskas, 61 N.Y.2d 481, 491-92 [1984]. Husband agrees that Wife should receive 50% of the marital portion of the pension through entry of a Qualified Domestic Relations Order ("QDRO"). In any case, such a share of this pension would be appropriate. Levi v Levi, 186 A.D.3d 1628, 1630 [2d Dept 2020]. Thus, Wife will be credited with 50% of the marital portion of the pension.
Plaintiff borrowed $31,214 against his pension prior to March 31, 2019 [Def. Exh. N]. Those funds were utilized for marital expenses. Defendant's assertion that she was unaware of this loan, even if credible, does not affect the outcome in any way, as she will receive full credit for her marital share of the value of that loan and there is no competent evidence other than that the funds were used for marital expenses. By March 31, 2019, that pension loan had been reduced to $26,472.88 [Def. Exh. N]. As of that date, each party would have been responsible for 50% of that loan balance. As of March 31, 2020, six months after the date of commencement, that loan was reduced further to $19,672.08 [Def. Exh. AD]. It is the court's understanding that Husband has since paid off the balance of that loan using post-date of commencement funds. Husband would then be entitled to a credit of 50% of the funds he used to pay off the pension loan following the date of commencement. Thus, he is entitled to a credit of $9,836.04 [$19,672.08 ÷ 2] for the period of April 1, 2020 until the payoff date. He is also entitled to a credit of 50% of the payments he made toward the pension loan for the six months immediately following the date of commencement, although the exact payments cannot be gleaned from the testimony. A review of Def. Exh. AD shows that the repayment requirement at that time was $298 per two-week pay period. Assuming 13 pay periods for one-half of the calendar year, the court assumes that $3,874 was paid by Husband during this six-month period [$298 x 13]; consequently, Husband is entitled to a credit of 50% of the $3,874 paid, or $1,937. Wife is reminded that repayment of the loan increased the value of the marital portion of the pension, of which Wife is to receive 50%.
STUDENT LOANS
Defendant seeks credit for the significant partial pay-off of Plaintiff's student loans during the marriage, a pay-off that is not counterbalanced by an equal or relatively equal pay-off of Defendant's student loans. As noted, supra, under Plaintiff's control over the parties' finances, the parties paid $119,246.25 toward his premarital student loans during the marriage, while they paid only $49,204.30 toward Defendant's student loans during the marriage, including both premarital and marital student loans. The general rule is that when a parties' premarital debt, such as a student loan, is paid off during a marriage, the contributing spouse is entitled to a credit representing that contribution to the other spouse's premarital debt. See Ramadan v Ramadan, 195 A.D.3d 1174, 1175-1176 [3d Dept 2021] (Citations omitted). With respect to the $16,000 student loan Defendant obtained at Plaintiff's request during the marriage, that entire $16,000 will be shared 50/50 as the loan was used for general marital financial purposes. Husband significantly benefitted from Wife's career advancement during the marriage and Wife's other student loans were used to pay living expenses, which permitted Wife to complete her studies and to advance her career. See Kopko v Kopko, 2024 NY Slip Op 03853, 2024 WL 3446834, 2024 A.D. LEXIS 3916 [3d Dept Jul. 18, 2024]. Wife used her own inheritance to pay off this loan. Wife will therefore receive an $8,000 credit for this loan repayment from her inheritance. Defendant is also entitled to a 50% credit for the other $25,000 she gave Plaintiff from her $41,000 total inheritance. Plaintiff used these funds for other marital expenses.
The court addresses separately the balance of each party's student loans. It appears that Wife's other student loans were premarital. Reviewing Def. Exhs. AE, AH, it appears that the parties', through Husband, focused almost exclusively on paying down Husband's private student loans. As of the date of marriage, Husband's four private student loans totaled $66,166.34 and his two federal student loans totaled $56,088.76. Of the $122,255.10 in aggregate student loans, at date of marriage 54% of the loans were private and 46% were from the federal government. During the marriage the parties paid $119,246.25 toward Husband's premarital loans, reducing the private loan balance to $14,909.55 with the federal loan balance being reduced by a small amount, now with a $53,555.43 balance, with a 78-22% government to private loan ratio. This worked well for Husband as, after date of commencement, the balance of Husband's federal loans was completely forgiven, leaving him with the much-reduced private loan balance.
As of the date of marriage, Wife's student loans totaled $77,434.28. Despite the $49,204.30 payment, the balance was reduced during the marriage by $3,653.69, leaving a balance at date of commencement of $73,674.34. Thus, $70,041.95 less was paid toward Wife's premarital loans.
The court is cognizant of cases that indicate that the loan payments for premarital separate debts should be equalized. The court has broad discretion, however, to distribute marital assets and debts equitably, and the court's analysis regarding the student loans is inextricably intertwined with its overall equitable distribution analysis. Here, a "true up" of marital payments for premarital student loan debt would not be equitable.
Of the parties combined date of marriage student loan debt of $199,689.38, 38.77% of that student loan debt was Wife's and 61.23% was Husband's. The court does not view the student loan repayments in a vacuum. In an intact marriage, it is logical for the parties, pooling all of their resources, to pay, among many other costs, student loan debt pursuant to the monthly ratio of student loan obligations. Presumably neither party intended during the marriage to default on a student loan payment and it is reasonable for each party to expect that their relative student loan obligations would be paid down fairly. The court does not know the interest rate on each loan and cannot determine whether it made sense to choose to pay down one loan over another. These are decisions that couples make in a marriage. The court should not delve into each aspect of married family life to seek to unravel the basis for every financial decision, as there are many factors that go into every financial determination. For example, if Husband's much larger loans were not being paid down, he may have insisted that marital expenditures on other items be different. To view this one aspect of the parties' marital payments in a vacuum would be myopic. This was a fairly long-term marriage, 13 years, and the parties apparently didcourt simply divided the payment differential in half ($70,041.95 ÷ 2), Plaintiff would owe Defendant $35,020.97.
Given all the circumstances of the marriage, however, the court takes a different approach, one based more on the concept of this marriage as a true economic partnership. If the parties had paid down the student loans in proportion to what was owed (61.23% to 38.77%), of the $168,450.55 in aggregate student loan payments during the marriage, $65,308.96 (38.77% of payments of $168,450.55) should have been toward Wife's student loans during the marriage. As only $49,204.30 was paid, the differential is $16,103.98 ($65,308.96 - $49,204.30). Thus, under this analysis, Husband owes Wife $16,103.98 based upon the relative student loan payment differential.
If the court viewed the appropriate ratio of payments solely as a function of the monthly student loan payments for each party, the result would be substantially. Husband's approximately $700 monthly payments and Wife's approximately $440 student payments results in a 61.4% to 38.6% ratio.
Husband argues Wife should not receive any credits for the student loan payment differential. The court believes that the credit it is giving Wife is equitable. Husband's remaining student loans were forgiven as a result of the public service work he performed over a period of years, the majority of which work took place during the marriage and the loan forgiveness was in significant part the result of his employment during the marriage. Wife remains saddled with significant student loans which she must pay off, although her income potential is much greater and she owns 90% of the valuable marital residence, with equity in the one million dollar range, while Husband leaves the marriage with minimal assets. Under all the circumstances of this case, the court credits Wife $16,103.98 for the student loan payment differential during the marriage.
2019 TAX LIABILITY
The parties dispute the proportion of the joint tax debt for 2019. The date of commencement was October [redacted], 2019. The parties elected to file married filing jointly for that calendar year. They cannot agree as to the tax obligation of each party for that calendar year. October [redacted], 2019 was the [redacted]th day of that year, representing [approximately 75%] of that calendar year. The court cannot simply divide the entire tax liability of the parties for that year by that percentage, as the tax obligation of each party is a function of that party's income, tax withholding and appropriate deductions for that period of time pre-date of commencement.
Defendant retained an accountant, Martin Kulberg, to calculate each party's share of the 2019 taxes. Mr. Kulberg was not qualified as an expert, and, accordingly, no expert report was submitted. According to Defendant, Mr. Kulberg's role was solely to "do the math". Defendant's position is that the calculation was an arithmetical calculation that did not require expert testimony. Plaintiff also did not retain an expert for this purpose, quite understandably, given the expense that this would have entailed versus the very limited differential in the parties' positions.
Mr. Kulberg testified, subject to cross examination, that as of the date of commencement the parties' tax liability totaled $15,729.20 for 2019. This witness appears to have taken the parties' combined total tax liability for the year and prorated it for the proportion of the year prior to the date of commencement. He did not analyze the parties' income or tax liability for a particular month or the nine-plus month period prior to the date of commencement. The court notes that Defendant has historically (often with Plaintiff's assistance) underpaid her required estimated income taxes. There is no competent analysis of Defendant's business records, her receipts or other financial information upon which the accountant testified. As the court does not have a sufficient evidentiary basis to allocate the tax liability for the pre-date of commencement period in 2019, it declines to do so. See Heydt-Benjamin v Heydt-Benjamin, 127 A.D.3d 814, 815 [2d Dept 2015] (the Supreme Court properly concluded that there was insufficient evidence presented to support the defendant's application for equitable distribution of the plaintiff's pension).
SAVINGS AND CHECKING ACCOUNT CREDITS
A review of submitted exhibits reveals that as of the date of commencement, the parties had $417.81 in a checking account (x4374) and $54.22 in a savings account (x8441) at Bethpage Federal Credit Union. [Def. Exh. J]. These sums are to be shared 50/50. Another account (x4317) at the same institution had $25,022.60 in savings and a checking account (x4325) had $1,938.05 (Pl. Exh. K). Both accounts are to be shared 50/50. As the accounts are in Plaintiff's name, he is responsible to take steps to ensure the equal division of these accounts.
Wife had a joint checking account (x6202) with her mother at Citibank, with a balance of $9,771.13 as of the date of commencement [Def. Exh. L-1]. Defendant does not dispute that this is a marital asset. Defendant is to take steps to ensure that this account is shared 50/50.
BASIC CHILD SUPPORT, ADD-ONS, AND RETROACTIVE OBLIGATIONS
Wife is the primary residential parent. In calculating the child support due to her, DRL § 236(B)(7) provides that:
Such [child support] order shall be effective as of the date of the application therefor, and any retroactive amount of child support due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary child support which has been paid (emphasis added).
Similarly, DRL § 240(1) provides:
Such direction shall be effective as of the date of application therefor, and any retroactive amount of child support due shall be paid in one sum or periodic sums, as the court shall direct, taking into account any amount of temporary child support which has been paid (emphasis added).
Generally, final post-trial award of child support shall be retroactive to the date of service of the pleading in which the support request was first made, which may be the summons with notice. DRL § 236(B). Here, however, the parties lived together until November 1, 2020 when Husband vacated the marital residence. Until that time, the children's needs were met and therefore there is no child support awarded. See, e.g., Santamaria v Santamaria, 177 A.D.3d 802, 806 [2d Dept 2019]; cf. Wolinsky v Berkowitz, 227 A.D.3d 433, 434[1st Dept 2024] ("That the parties lived together between October 2022 and March 2023 does not bar an award of child support where there is evidence that the award is necessary to maintain the reasonable needs of the children during litigation (see Harari v Davis, 59 A.D.3d 182, 182 [1st Dept 2009]; Koerner v Koerner, 170 A.D.2d 297, 298 [1st Dept 1991])."). Thus, child support shall date back to when the parties began to reside separately and the children were with Defendant as the primary custodial parent. See Santamaria v Santamaria, supra, 177 A.D.3d at 806 [2d Dept 2019]. The court entered a pendente lite order for both basic child support and a specified percentage of add-on expenses, subject to a final order after trial. Husband must be afforded credit for any child support actually paid during this period. Id.
The formula and process for calculating child support, pursuant to DRL § 240(1-b), is as follows:
1-b. (a) The court shall make its award for child support pursuant to the provisions of this subdivision. The court may vary from the amount of the basic child support obligation determined pursuant to paragraph (c) of this subdivision only in accordance with paragraph (f) of this subdivision.
...
(b)(3) "Child support percentage" shall mean:..
(ii) twenty-five percent of the combined parental income for two children...
(4) "Combined parental income" shall mean the sum of the income of both parents.
(5) "Income" shall mean, but shall not be limited to, the sum of the amounts determined by the application of clauses (i), (ii), (iii), (iv), (v) and (vi) of this subparagraph reduced by the amount determined by the application of clause (vii) of this subparagraph:
(i) gross (total) income as should have been or should be reported in the most recent federal income tax return. If an individual files his/her federal income tax return as a married person filing jointly, such person shall be required to prepare a form, sworn to under penalty of law, disclosing his/her gross income individually;
(ii) to the extent not already included in gross income in clause (i) of this subparagraph, investment income reduced by sums expended in connection with such investment;
(iii) to the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the amount of income or compensation voluntarily deferred and income received, if any, from the following sources:
(A) workers' compensation,
(B) disability benefits,
(C) unemployment insurance benefits,
(D) social security benefits,
(E) veterans benefits,
(F) pensions and retirement benefits,
(G) fellowships and stipends,
(H) annuity payments, and
(I) alimony or maintenance actually paid or to be paid to a spouse who is a party to the instant action pursuant to an existing court order or contained in the order to be entered by the court, or pursuant to a validly executed written agreement, in which event the order or agreement shall provide for a specific adjustment, in accordance with this subdivision, in the amount of child support payable upon the termination of alimony or maintenance to such spouse; provided, however, that the specific adjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with subparagraph two of paragraph b of subdivision nine of part B of section two hundred thirty-six of this article. In an action or proceeding to modify an order of child support, including an order incorporating without merging an agreement, issued prior to the effective date of this subclause, the provisions of this subclause shall not, by themselves, constitute a substantial change of circumstances pursuant to paragraph b of subdivision nine of part B of section two hundred thirty-six of this article.
(iv) at the discretion of the court, the court may attribute or impute income from, such other resources as may be available to the parent, including, but not limited to:
(A) non-income producing assets,
(B) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirecly2 confer personal economic benefits,
(C) fringe benefits provided as part of compensation for employment, and
(D) money, goods, or services provided by relatives and friends;
(v) an amount imputed as income based upon the parent's former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support; provided that incarceration shall not be considered voluntary unemployment, unless such incarceration is the result of non-payment of a child support order, or an offense against the custodial parent or child who is the subject of the order or judgment;
(vi) to the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the following self-employment deductions attributable to self-employment carried on by the taxpayer:
(A) any depreciation deduction greater than depreciation calculated on a straight-line basis for the purpose of determining business income or investment credits, and
(B) entertainment and travel allowances deducted from business income to the extent said allowances reduce personal expenditures;
(vii) the following shall be deducted from income prior to applying the provisions of paragraph (E) of this subdivision:
(A) unreimbursed employee business expenses except to the extent said expenses reduce personal expenditures,
(B) alimony or maintenance actually paid to a spouse not a party to the instant action pursuant to court order or validly executed written agreement,
(C) alimony or maintenance actually paid or to be paid to a spouse who is a party to the instant action pursuant to an existing court order...
(E) public assistance,
(F) supplemental security income,
(G) New York city or Yonkers income or earnings taxes actually paid, and
(H) federal insurance contributions act (FICA) taxes actually paid....
[ Emphases added].
(c) The amount of the basic child support obligation shall be determined in accordance with the provision of this paragraph:
(1) The court shall determine the combined parental income.
(2) The court shall multiply the combined parental income up to the amount set forth in paragraph (b) of subdivision two of section one hundred eleven-i of the social services law by the appropriate child support percentage and such amount shall be prorated in the same proportion as each parent's income is to the combined parental income.
(3) Where the combined parental income exceeds the dollar amount set forth in subparagraph two of this paragraph, the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of this subdivision and/or the child support percentage.
(4) Where the custodial parent is working, or receiving elementary or secondary education, or higher education or vocational training which the court determines will lead to employment, and incurs child care expenses as a result thereof, the court shall determine reasonable child care expenses and such child care expenses, where incurred, shall be prorated in the same proportion as each parent's income is to the combined parental income. Each parent's pro rata share of the child care expenses shall be separately stated and added to the sum of subparagraphs two and three of this paragraph.
(5) the court shall determine the parties' obligation to provide health insurance benefits pursuant to this section and to pay cash medical support as provided under this subparagraph.
...
(f) The court shall calculate the basic child support obligation, and the non-custodial parent's pro rata share of the basic child support obligation. Unless the court finds that the non-custodial parent's pro-rata share of the basic child support obligation is unjust or inappropriate, which finding shall be based upon consideration of the following factors:
(1) The financial resources of the custodial and non-custodial parent, and those of the child;
(2) The physical and emotional health of the child and his/her special needs and aptitudes;
(3) The standard of living the child would have enjoyed had the marriage or household not been dissolved;
(4) The tax consequences to the parties;
(5) The non-monetary contributions that the parents will make toward the care and well-being of the child;
(6) The educational needs of either parent;
(7) A determination that the gross income of one parent is substantially less than the other parent's gross income;
(8) The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action;
(9) Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent's expenses are substantially reduced as a result thereof; and
(10) Any other factors the court determines are relevant in each case, the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation, and may order the non-custodial parent to pay an amount pursuant to paragraph (e) of this subdivision.
(g) Where the court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, the court shall order the non-custodial parent to pay such amount of child support as the court finds just and appropriate, and the court shall set forth, in a written order, the factors it considered; the amount of each party's pro rata share of the basic child support obligation; and the reasons that the court did not order the basic child support obligation. Such written order may not be waived by either party or counsel; provided, however, and notwithstanding any other provision of law, the court shall not find that the non-custodial parent's pro rata share of such obligation is unjust or inappropriate on the basis that such share exceeds the portion of a public assistance grant which is attributable to a child or children. Where the non-custodial parent's income is less than or equal to the poverty income guidelines amount for a single person as reported by the federal department of health and human services, unpaid child support arrears in excess of five hundred dollars shall not accrue.DRL § 240
Here, the court first has to calculate presumptive child support for each year, based on the parties' incomes (whether actual, as disclosed, or imputed) for each such year. "Where, as here, the court does not render a child support determination until some time after the commencement of the action, the amount of retroactive child support should be based on the parties' income for each year that child support is awarded." Wilson v Wilson, 226 A.D.2d 711, 712 [2d Dept 1996]; see also Diamond v Diamond, 11 A.D.3d 289 [1st Dept 2004] (same); Gezelter v Shoshani, 283 A.D.2d 455, 457 [2d Dept 2001] (citing Wilson).
As several Appellate Division cases have stated, however, the appropriate child support cap to be applied for the presumptive calculations is the cap then in effect when the order or judgment is issued:
When the combined parental income exceeds $130,000, the "statutory cap" (Iarocci v Iarocci, 98 A.D.3d 999, 1001 [2012]) that was in effect when the order appealed from was entered, "the court shall determine the amount of child support for the amount of the combined parental income in excess of [$130,000] through consideration of the factors set forth in paragraph (f) of this subdivision and/or the child support percentage" (Family Ct Act § 413 [1] [c] [3]).
Parsick v Rubio, 103 A.D.3d 898, 900 [1st Dept 2013] (emphasis added)
The CSSA 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 the statutory cap that is in effect at the time of the judgment (see Holterman v Holterman, 3 N.Y.3d 1, 11 [2004]; Matter of Cassano v Cassano, 85 N.Y.2d 649, 653-654 [1995]), here, $130,000 (see Social Services Law § 111-i [2] [b]).Hymowitz v Hymowitz, 119 A.D.3d 736, 742-43 [2d Dept 2014] (emphasis added).
Given that the court appears to have some discretion as to which cap to apply in a case that has spanned several years (including possibly due to Covid-19 related delays), the court herein will utilize a year-by-year analysis with the cap in effect for that particular year. This appears to be the fairer option in this case as the cap itself has increased nearly 20% during the pendency of this action and the parties' actual and relative incomes have varied significantly.
The presumptive cap for combined parental income for child support purposes was $148,000 through February 29, 2020 (AO/124/18); $154,000 from March 1, 2020; $163,000 from March 1, 2022; and $183,000 from March 1, 2024; see https://ww2.nycourts.gov/divorce/legislationandcourtrules.shtml listing relevant Administrative Orders, and providing links to each).
In relevant part, income for support purposes is determined by the "gross (total) income as should have been or should be reported in the most recent federal income tax return." DRL § 240 (1-b) (b) (5). The court's task in assessing child support has been complicated by the lack of clarity in evidentiary submissions concerning Wife's income, with a particular problem in identifying what her business expense deductions were for, and therefore whether or not they are properly deductible for CSSA purposes.
Husband's CSSA income is clear. For calendar year:
2020: Wages $150,055
Soc. Sec. (8,537)
Medicare (2,176)
CSSA income: $139,342
2021: Wages $155,169
Soc. Sec. (8,854)
Med. (2,250)
CSSA income: 144,065
2022: Wages 157,239
Soc. Sec. (9,114)
Med. (2,280)
CSSA income: $145,845
2023: Wages $188,952
Taxable interest: 1,850
Additional income: 4,000
Total income: 194,802
Soc. Sec. (9,932.40)
Med. (2,823.88)
CSSA Income: $182,045.72
2024: As the court has no relevant information as to 2024 income, the court will utilize 2023 data.
Wife's CSSA income derives almost exclusively from her business and is somewhat less clear:
For Calendar Year:
2020: [Joint Tax Return]: Gross receipts $290,423
Business Expenses Per Sched. C (67,709)
FICA and Medicare Tax: (23,040)
CSSA Income: 199,674
2021: Gross receipts $278,075
Business Expenses Per Sched. C: ($63,201).
The court has reviewed Schedule C of Defendant's 2021 Federal Tax Return wherein Defendant claimed $63,201 in deductible business expenses. The court has also reviewed the Brisbane report valuing Defendant's [redacted] practice to see how the business expenses were described. The Brisbane report only went through 2019. All of the business expenses listed by Wife in Schedule C are also appropriately deductible under DRL § 236 income with the possible exception of "Bank Charges" for $13,230 and "Communications" for $2,221. There is no testimony as to what these charges are for and the relationship of these debits to the business is not clear; however, based upon the parties' joint tax return for 2020, the parties took nearly identical business deductions. Mahoney-Buntzman v. Buntzman, 12 N.Y.3d at 422 ("party to litigation may not take a position contrary to a position taken in an income tax return"). Under these circumstances, the court will credit these amounts. The same analysis applies for the 2022 and 2023 tax returns.
FICA & Medicare Tax: ($23,462)
CSSA Income: $191,412
2022: Gross Receipts $306,927
Interest: 219
Business Expenses Per Sched. C: ($53,330)
FICA & Medicare Tax: ($25,020)
CSSA Income: $228,796
2023: Gross Receipts $ 305,097
Interest: $437
Business Expenses Per Sched. C: ($53,854)
FICA & Medicare Tax: ($26,594)
CSSA Income: $225,086
| 2020 | 2021 | 2022 | 2023 | 2024 | |
| Payor (H) CSSA Income | 139,342 | 144,065 | 145,845 | 182,046 | TBD |
| Payee (W) CSSA Income | 199,674 | 191,412 | 228,796 | 225,086 | TBD |
| Combined Parental CSSA Income | 339,016 | 335,477 | 374,641 | 407,132 | TBD |
| Child Support Cap | 154,000 | 154,000 | 163,000 | 163,000 | 183,000 |
| Percentage of Income for Two Children | .25 | .25 | .25 | .25 | .25 |
| Total Annual CS at Cap | 38,500 | 38,500 | 40,750 | 40,750 | 45,750 |
| Payor's (H) Pro Rata Percentage | 41.10 | 42.94 | 38.93 | 44.71 | TBD |
| Payor's Share of Annual CS | 15,824 | 16,532 | 15,864 | 18,219 | TBD |
| Payor's Share of Monthly CS | 1,319 | 1,378 | 1,322 | 1,518 |
The court may consider the amount of child support to be awarded, on the income that exceeds the statutory cap for the combined parental income, if any, under the factors set forth in DRL § 240 [1-b] [f]. After considering the relevant statutory factors here, the court finds that the statutory guideline amount of child support (whether pursuant to the prior or current caps) is appropriate. Among other considerations set forth herein, neither party has significant savings or investments. Although Husband has retirement benefits, which will continue to accrue, Wife will have the former marital residence after this divorce, which will presumably accrue in value. She has been gifted at least $700,000 and her mother has continued to contribute to her household needs. Both parties' finances are strained; however, Husband needs to utilize all of his financial resources to maintain a residence for himself and the children when they spend time with him. The parties are sharing significant add-on expenses for the children, primarily unreimbursed medical expenses and tutoring, in addition to tuition for their child with approximately one quarter of that tuition not reimbursed by New York State. There is no cap on add-on expenses for the children.
Very importantly, Defendant's earning capacity significantly outpaces that of Plaintiff and the current trend is that the differential between their incomes will increase for the foreseeable future. Defendant's mother has been and presumably will continue to be an additional source of support for Defendant should needs arise. There is not a sufficient evidentiary basis, however, for the court to impute additional income to Wife based upon family support. The court reminds Plaintiff that he has benefitted greatly from his mother-in-law's financial and other support for years and will continue to benefit from that support as her assistance to the family helps the children maintain their long-term residence in the Nassau County house and her childcare and other assistance is a factor permitting Wife to earn the income that she has, indirectly reducing Husband's child support obligations. The court has considered each of the "F" factors and finds that the noncustodial parent's pro rata share of the basic child support obligation is not unjust or inappropriate. Husband is to be credited for any child support payments actually made. Plaintiff to repay combined retroactive child support and add-on expenses, discussed below, at a rate of $400 per month, in addition to basic child support as set forth herein.
ADD-ON EXPENSES
Wife seeks reimbursement of add-on expenses for the period of 2021 to date of trial, waiving any claim for such expenses prior to 2021. Each party is responsible for their share of these expenses on a pro rata basis for each of the years in question. The relevant percentages are set forth in the CSSA charts for basic child support above. See generally Hughes v Hughes, 79 A.D.3d 473, 476 [1st Dept 2010] ["[a]dd-on expenses such as child care and unreimbursed medical expenses are to be prorated in the same proportion as each parent's income is to the combined parental income"]. Going forward, Husband shall reimburse Wife for his share of those costs within 15 days upon receipt of proof of payment. The parties have a separate agreement concerning child tuition costs.
As the children are younger, and the parents did not address college during the hearing, and as both parents attended college and received higher graduate level degrees, the court assumes that once the children are of age to consider college education and its costs, that the parties will either reach an agreement, or will return to court to address college at that time; hence, the court does not decide that issue at all.
Plaintiff has been paying health insurance coverage for the entire family since date of commencement. He is entitled to a pro rata credit against pro rata share of child support add-ons for the health insurance payments he has made on behalf of the children. Husband is entitled to a dollar-for-dollar credit for the health insurance premiums he has paid on behalf of Wife following the date of commencement. Regarding health insurance coverage, the additional cost (over the parent's coverage) is "reasonable," as follows:
[H]ealth insurance benefits shall be considered "reasonable in cost" if the cost of health insurance benefits does not exceed five percent of the combined parental gross income. The cost of health insurance benefits shall refer to the cost of the premium and deductible attributable to adding the child or children to existing coverage or the difference between such costs for self-only and family coverage. Provided, however, the presumption that the health insurance benefits are reasonable in cost may be rebutted upon a finding that the cost is unjust or inappropriate which finding shall be based on the circumstances of the case, the cost and comprehensiveness of the health insurance benefits for which the child or children may otherwise be eligible, and the best interests of the child or children. In no instance shall health insurance benefits be considered "reasonable in cost" if a parent's share of the cost of extending such coverage would reduce the income of that parent below the self-support reserve.DRL § 240.
Additionally, although this family has health insurance, they have apparently utilized specific medical or mental health providers, necessarily paying sums that are substantially greater than traditional co-payments, on a consistent basis. To ensure that the children continue to have access to their existing health providers, or to other providers recommended by their historical providers, Plaintiff is to continue paying health insurance premiums for the children as follows: Husband shall continue paying 100% medical (and dental, optical, therapy and pharmaceutical, if any) insurance premiums for the children. Wife shall reimburse Husband from date of commencement for her pro rata share of the aforementioned insurance premiums. Going forward, such reimbursement shall be on a quarterly basis, within 14 days from receipt of proof from Husband of such expenses.
Parties are to settle the amount of credit to which Husband is entitled based upon his payment of health insurance premiums for the children, taking into account his pro rata percentage from date of commencement (using the 2020 percentage for the last two months of 2019). Separately, the parties shall settle the amount of credit to which Husband is entitled based upon his post-date of commencement premium payments for Wife's health insurance.
The other add-on expenses for the children present a thornier issue for the court. The parties have very significant add-on expenses for their children. Tuition is a major expense currently, and the parties have a separate stipulation regarding tuition expenses. A contentious issue throughout this case has been the percentage of add-ons each parent should pay. Prior to trial, the court had directed Defendant's counsel to provide to Plaintiff's counsel the add-on expenses that they were seeking and to attempt to resolve which add-on expenses were agreed upon, even if the parties disagreed as to the percentages. Defendant did not present any evidence during trial as to those add-on expenses, but after the court raised the issue with counsel following post-trial submissions, Defendant sent a summary of add-on expenses for the period of January 1, 2021 through December 31, 2023, as set forth below:
| 2021: Medical | $505.00 | Tutoring | 1,140.00 | |
| 2022: Medical | $3,460.00 | Tutoring | 11,636.50 | Health-Related 1,573.22 |
| 2023: Medical | $6,705.00 | Tutoring | 12,435.75 | Health-Related 805.95 |
| 2023 Other: | 895.19 |
The add-ons set forth above total $39,156.61. Counsel agree that Husband has paid his pendente lite 25% share of all of these fees, although Husband is challenging the validity of approximately $800 of these add-on expenses. Thus, as Husband has paid approximately $10,000 of the nearly $40,000 of these add-on expenses, Wife has been saddled with a disproportionate amount of these add-on expenses, given the court's recalculation of the relative income of the parties for CSSA purposes, supra. The court conducted an off-the-record conference call with both counsel on July 24, 2024 to discuss this issue. Plaintiff is adamant that the court should not consider these add-on expenses, as no proof at trial was adduced. Defendant counters that the chart representing the add-on expenses, together with the underlying documentation therefor, was provided to Plaintiff's counsel in April, prior to trial, at the direction of the court and the only objection (informally) was to approximately $800 of the charges. Wife is willing to forego any claim for the disputed $800.
Plaintiff is correct that there was no formal record established at trial of these add-on expenses. Under the circumstances, the court invited Defendant to file a post-trial motion to reopen the record to include the summary of the add-on expenses. Defendant filed the motion and Plaintiff opposed the relief sought. The court grants that motion, as essential fairness requires consideration of these add-on expenses. The court notes that Defendant has already paid his pendente lite-required 25% share of these expenses, indicating that, with the exception of the approximately $800 in add-ons that he disputes (and Wife now waives), Plaintiff has not disputed the validity of these add-ons. The Court also notes that, counsel for both parties worked thoughtfully, thoroughly and diligently, both sides on a volunteer basis for the entirety of this trial, and the court observes that Defendant reasonably relied on there being no objection to the add-on expenses (except for the now-waived $800). Therefore, the court finds that Plaintiff should reimburse Defendant for his pro rata share of these add-ons for calendar years 2021, 2022 and 2023, with the pro rata share set forth in the table, supra.
ATTORNEY AND FORENSIC EVALUATOR FEES
The determination to award counsel fees is within the sound discretion of the court. De Cabrera v Cabrera-Rosete, 70 N.Y.2d 879, 881-882 [1987]. The court is to consider the particular circumstances of each case, "including the financial circumstances of the parties and the relative merit of the parties' positions." Matter of Steven S. v Yelena S., 129 A.D.3d 408, 409 [1st Dept 2015], quoting Talty v Talty, 110 A.D.3d 908, 908 [2d Dept 2013]. Further, as here, courts may also consider whether a party unnecessarily prolonged the litigation, delayed the proceedings or engaged in unnecessary litigation. Klein v Klein, 178 A.D.3d 802, 805 [2d Dept 2019]; Cohen v Cohen, 120 A.D.3d 1060, 1066 [1st Dept 2014]). However, an award of counsel fees based solely on punishing a party's inappropriate litigation conduct without regard to the parties' financial circumstances and their ability to pay will not be upheld. See, e.g., Kesavan v Kesavan, 162 A.D.3d 445, 446 [1st Dept 2018]; Roddy v Roddy, 161 A.D.3d 441 [1st Dept 2018]; Brookelyn M. v Christopher M., 161 A.D.3d 662 [1st Dept 2018]).
The court has presided over this action since its inception and is fully familiar with the parties' various positions throughout extensive pretrial proceedings and at trial. Husband's counsel participated on a pro bono basis. Wife's attorney did the same after a relatively short period of time. The court commends all counsel on their pro bono efforts and the complete dedication each side's counsel demonstrated throughout this action. The court finds that each party has achieved some of what they set forth as their litigation positions and that neither party has sought to delay this action or engage in frivolous litigation. Given the relatively equal success at trial of both parties, the Husband's lesser income and the increasing disparity between the parties' incomes, the court holds that it would be inappropriate to reallocate attorney's fees.
With respect to the fees paid to the court-appointed forensic expert, Dr. Rodrigo Pizarro, the court explained at the time why it was assigning specific percentages of the cost to each party. Before appointing the forensic evaluator, the court expressed to the parties its' reservations about appointing a forensic evaluator. The court noted that, at that time, the parents seemed essentially to agree upon the parameters of a parenting agreement, and noted the cost involved when the parties' resources were already highly stressed and, very importantly, the stress to the children of having them more directly involved in the litigation by being interviewed and observed by the forensic evaluator, as well as the delay in final resolution of the parenting plan. The court's allocation of fees at that point reflected in part the relative financial circumstances of the parties and in part an evaluation of which party's actions were necessitating the forensic evaluation. The parties settled custody while the forensic evaluation was still in progress. Although the custody agreement provided Wife with greater parenting time than that to which the parties had previously agreed or was court-ordered, the final custody agreement resulted in primary part from the developments and concerns regarding each of the parties' children. The children's reaction to the divorce, the parties' separation and other important aspects of their lives evolved over time, and the parties are to be commended, not punished, for recognizing these changes and agreeing to an updated parenting plan that best reflected the needs of the children at that time. Under these circumstances, the court declines to reallocate the forensic evaluator's fees. For similar reasons, the court declines to reallocate the fees for the attorney for the children.
CAUSE OF ACTION FOR DIVORCE
The credible evidence at trial shows that the parties had an irretrievable breakdown in their marital relationship at least six months prior to the commencement of this divorce action. Accordingly, the court grants the final judgment of divorce pursuant to DRL § 170(7).
Accordingly, upon the prior papers and prior proceedings in this matter, and for the reasons stated herein, IT IS ORDERED, as follows: Payment of basic child support and add-on retroactive obligations is set forth above. Equitable distribution, including credits from each party to the other is also set forth above. As stated herein, Wife shall have 18 months to remove Husband's name from the mortgage for the Nassau County house. The net of any other equitable distribution credits and debits listed herein shall be paid within six months from the date of this order, given the possible need for financial arrangements to be made to make these payments.
Plaintiff is to settle an order either on consent as to form, or on seven days' notice via NYSCEF, listing the awarded amount of credit for each side (including any actual payments made), both for equitable distribution, and separately, for basic and add-on child support. Credits for pension loan payoff shall be credited against other equitable distribution credits (for example, the student loan credit, supra). If Defendant files a proposed counter-order (as to form only), within that notice period, it is to be filed as a substantive redline, see 22 NYCRR 202.48. This constitutes the decision and order of the court.
This original Decision and Order is filed by the Court on NYSCEF, which shall constitute filing and entry. Plaintiff is hereby directed to file a Notice of Entry of herein Decision and Order within five days.
It is HEREBY FURTHER ORDERED that Plaintiff shall file all proposed Judgment of Divorce documents, via NYSCEF e-file, on consent or on notice, within 30 days of today's Order or sooner. Plaintiff shall also file appropriate documents to address Wife's interest in Husband's pension (whether a QDRO or otherwise).