K.L. v M.L.

[*1] K.L. v M.L. 2005 NY Slip Op 51822(U) [9 Misc 3d 1128(A)] Decided on October 28, 2005 Supreme Court, Suffolk County Pastoressa, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 28, 2005
Supreme Court, Suffolk County

K.L., Plaintiff,

against

M.L., Defendant.



04-15XXX

Joseph C. Pastoressa, J.

In this action for divorce, the court conducted a full trial on the contested issues of custody, equitable distribution, and maintenance. On the basis of the credible evidence adduced, the court makes the following findings of fact and conclusions of law:[FN1]

The parties, KL and ML (hereafter referred to as the plaintiff and defendant, respectively), were married on December 26, 1987, and had three children together: Bryanne, born December 29, 1991 (now 13 years old), Nolan, born July 29, 1998 (now seven years old), and Collette, born [*2]December 13, 2000 (now four years old). This divorce action was commenced on July 14, 2004.

The parties have lived together in the marital residence with their children, up until July of this year, when the plaintiff, without the benefit of any court order, moved out taking Nolan and Collette with her.

The court has considered all of the exhibits admitted into evidence at trial, and has heard from numerous witnesses during the trial, including the plaintiff, the defendant, the plaintiff's brother, the plaintiff's former employer, and neighbors and friends. In addition, the court has considered a court ordered forensic psychological report which was admitted into evidence without objection. The court also conducted in camera interviews of the parties' eldest children, Bryanne and Nolan, at the request of and with the consent of all parties.

While courts assigned to dedicated matrimonial parts quickly grow accustomed to the numerous cross-allegations of wrongdoing which typically define any hotly contested divorce trial, in the instant case, the allegations have been brought almost exclusively by the plaintiff mother against the defendant father.

The plaintiff has alleged that the defendant is an alcoholic, that the defendant has committed physical abuse against her, that the defendant has emotionally abused both her and the children, that the defendant has excessively absented himself from the home on hunting vacations, voluntary military assignments, and voluntary job related assignments and overtime. The plaintiff has alleged that the defendant has threatened suicide, slashed her car tires, assaulted her, and vandalized her personal belongings.

The court having observed the demeanor of the witnesses as they testified, and having considered the substance of their testimony, as well as all of the exhibits introduced into evidence, finds that not one of the plaintiff's allegations has been established (see, Eschbach v. Eschbach, 56 NY2d 167, 173; Griffen v. Scott, 303 AD2d 504).

The defendant father is employed as a New York City police officer having first joined the force in July 1992. Prior to that, the defendant served in the United States Air Force stationed in Germany and Texas. He retired from active duty in 1988, and joined the reserves. Thereafter, and prior to joining the police force, the defendant held various jobs, including a position with Pan American Airways prior to its declared bankruptcy.

The plaintiff was the primary caregiver for the parties children, and held several jobs at mostly retail sales establishments, both full-time and part-time, depending on the schedules of the children throughout the years of their marriage.

The plaintiff admitted in her testimony at trial that she began an affair with her next door neighbor's husband in July 2004, and that the affair continues to the present day. It is clear that this affair, which the defendant contends began far earlier than July 2004, was the principal precipitating force behind the demise of the parties' marriage. While the plaintiff seeks to place the blame elsewhere, citing the defendant's absence from the home for work, military duty, and hunting trips, and the defendant's alleged alcoholism as the culprits, the proof does not support her claims.

Firstly, with regard to the plaintiff's claim that the defendant is an alcoholic, the court finds not a scintilla of credible evidence to support the claim. The evidence establishes that the defendant is, for the most part, a beer drinker at social occasions. The defendant has never been disciplined or in any way censured by the police department for alcohol abuse, and the defendant [*3]has never been arrested for any alcohol related offense. The testimony of alcohol abuse comes almost exclusively from the plaintiff herself, with anecdotal corroborative testimony from the plaintiff's brother, and one of the plaintiff's self-described good friends. The interested witness bias of the latter two being obvious, but even taking their testimony at face value, the plaintiff's brother, a fellow police officer, admitted that he never saw the defendant drinking during working hours, and only conclusorily, and without elaboration, expressed concerns about the defendant's drinking, stating that the plaintiff had told him that the defendant was drinking to much. The plaintiff's friend who testified to witnessing the defendant drink excessively at social functions, admitted that she only saw the defendant once or twice a year, at most, over the last twenty years. Thus, essentially, the court is left with the question of the plaintiff's own credibility in assessing her allegations of the defendant's alcoholism. In this regard, it bears noting at the outset that in the plaintiff, the court has before it an individual who has shown a willingness to disregard her oath to tell the truth, and to lie under oath in court proceedings. Specifically, in September 2004, in a related proceeding before a Family Court Judge of this County, the plaintiff testified, in response to direct questioning, that she "absolutely" had not had an affair with her neighbor's husband. In the instant trial, however, the plaintiff admitted that her affair with her neighbor's husband began in July 2004, prior to her perjured testimony before the Family Court Judge. The plaintiff's motive to paint the defendant as an alcoholic in a contested custody battle being clear, and considering her willingness to commit perjury to further her cause, taken together with this court's assessment of her demeanor as she testified, and the substance of her testimony, the court rejects her testimony in its entirety (see, Miller v. Pipia , 297 AD2d 362,364; Varga v. Varga, 288 AD2d 210,211; Darema - Rogers v. Rogers, 199 AD2d 456, 457).

Similarly, the court finds no credible proof to establish the plaintiff's allegations of physical abuse by the defendant. The physical abuse to which the plaintiff testified consists of one incident which allegedly occurred outside the marital residence on July19, 2005. According to the plaintiff, she was on the front lawn arguing with the defendant about a file which the defendant allegedly had taken from the trunk of her car. The plaintiff testified that she asked the defendant for the file, and when she approached the defendant and went for the file, the defendant punched her in the jaw with his left fist, and then grabbed hold of her left arm and twisted it until she fell to the ground. The plaintiff testified that she sustained a laceration to her lip, a hematoma, and bruises and scrapes on her arm. The plaintiff called to the stand a physician's assistant from her family doctor's office who testified that on July 21, 2005 the plaintiff appeared at the doctor's office claiming that she had been the victim of spousal abuse, and that, upon examination, the left side of her face and jaw was found to be swollen, and abrasions were found on her left arm.

The defendant testified that on the day of the incident he was in the front yard when the plaintiff came running out of the front door of the marital residence, charging towards him screaming that she was going to kill him. According to the defendant, the plaintiff began punching, kicking, and screaming at him, and literally grabbed hold and hung onto him, while he held his arms straight up in the air vertically, and yelled for someone to call the police. The plaintiff retreated back into the house, and then moments later reemerged sporting a cut lip, and screaming that the defendant had hit her. The police arrived, and after taking pictures of injuries sustained by the defendant, as well as pictures of the defendant's shirt which had been ripped [*4]apart, then placed the plaintiff under arrest.

Three neighbors were present and witnessed the altercation between the plaintiff and the defendant. The defendant called all three to testify at trial, and all three witnesses corroborated the defendant's version of what had transpired. Significantly, the witnesses testified that the plaintiff's face had no marks or cuts on it after she attacked the defendant, but that marks appeared on her face only after she came out of the house for the second time. The court credits the defendant's version of what transpired, as corroborated by the neighborhood witnesses.

Turning to the plaintiff's allegations that the defendant excessively and voluntarily absented himself from the marital home for hunting trips, work, and military duty, the court finds the proof to the contrary. The defendant's hunting trips were sporadic, averaging, at most, a few weekends throughout the hunting season. The defendant's increase

in work overtime resulted from the defendant's decision to transfer to the Brooklyn North Narcotics Squad because he had been told it could lead to a detectives's promotion within 18 months. The defendant had discussed this matter with the plaintiff prior to transferring. The plaintiff voiced no objection to the prospect of increased work hours in return for the possibility of a promotion and pay raise, and the defendant did, in fact, achieve the promotion to detective rank. So too, with the defendant's military career, the plaintiff knew of it before they married, and never voiced any objection to his reserve duty until the commencement of this divorce action. In any event, this court will not penalize or hold anything against the defendant for serving his country at a time of war, which is one of the highest, if not the highest, and laudable duties a citizen can undertake.

The plaintiff's allegations that the defendant was suicidal were similarly contrived; and as for her claims that the defendant slashed her car tires and committed other acts of vandalism, the plaintiff presented no proof of the defendant's involvement, and there clearly were others with motives to do so, including, of course, several of the neighbors whom the plaintiff had recently reported to the authorities for various code violations on their properties.

The plaintiff did not await trial to air her allegations against the defendant, but instead wreaked havoc with them by reporting them to the defendant's employer, the New York City Police Department. As a result of the plaintiff's allegations, the defendant has had his gun and detective's shield taken from him, was forced to attend mandatory counseling sessions for alcohol abuse, and suicidal ideations, was transferred to a desk assignment, and incurred lost wages of between $30,000 to $40,000 per year.

The court finds that the plaintiff's allegations were brought, not out of a reasonable but mistaken belief as to their validity, but rather vindictively to harm the defendant and to gain tactical advantage in this custody battle. As harmful as that was, the real damage was done not to the defendant or the plaintiff for that matter, but to their children. The children did not ask for this acrimony; they did not ask for this disruption in their lives. It was the obligation of these parents to make life as easy as possible for their children, given that it was they who caused the disruption in their children's lives and not vice versa. Instead, the war between them was brought to their children, and their children were made unwilling participants on the battlefield. Clearly, the principal architect of this unfortunate reality was the plaintiff, and her barrages were incessant.

Since the commencement of this action there have been 31 police reports filed by the [*5]plaintiff against the defendant. Virtually all of them unnecessary, and many bordering on the ridiculous. Police were summoned, for example, when the defendant gave permission to the couple's seven year old son to go next door to play with his six year old friend on the plaintiff's day for visitation. The son now habitually runs to his room and hides whenever he hears police sirens.

In addition to police reports filed by the plaintiff, the plaintiff's paramour filed a complaint against the defendant alleging that he sexually molested his six year old son. An investigation was conducted and the charges declared unfounded, but the defendant had to endure additional repercussions at work as a result. Incredibly, the plaintiff denied from the stand ever discussing these charges with her paramour.

As a result of what has transpired in this case, the plaintiff's relationship with her eldest child Bryanne is now non-existent. Bryanne has stayed with her father and paternal grandparents over the last few weeks, refusing to reside with the plaintiff, and barely communicating with her. According to the defendant, Bryanne is angry with the plaintiff because she believes that the plaintiff has repeatedly lied to her, and because of the several severe and disparaging remarks which the plaintiff has made about the defendant and Bryanne in Bryanne's presence. The nadir of their relationship occurred in July of this year when, after an argument, the plaintiff told Bryanne that she was "a horrible daughter", and that "she didn't deserve to live". The plaintiff shortly thereafter stated to the defendant, within earshot of Bryanne, "you can have Bryanne, I'll take the other two". The court recognizes that the plaintiff loves her children, and that the plaintiff's comments were made in the heat of anger, but their harmful and devastating effects on Bryanne remain present nonetheless.

The plaintiff does continue to enjoy a good relationship with her other two children, however, the question of her fitness as a parent in the day to day care of her children is not at the crux of this custody battle. The court finds that both of these parents can provide a quality home environment, can provide needed parental guidance, can provide for each child's emotional and educational development and needs, and both are in good physical health with no noteworthy psychological impairments (see,Domestic Relations Law §§ 70,81,240; Walton v. Walton, 306 AD2d 491; Miller v. Pipia, 297 AD2d 362; Linda R. v. Richard E., 162 AD2d 48,53). While the plaintiff has sought to portray the defendant as an absentee uninvolved parent, the proof is otherwise. The evidence establishes that the defendant is an active participant in his children's lives, takes an interest in their activities, and knows what is going on in their lives. The defendant has been to his children's school functions, concerts, student shows, field trips, parent-teacher's nights, and doctor's appointments. The defendant has coached Bryanne's lacrosse teams and Nolan's baseball teams. He is by all accounts, except the plaintiff's, a caring and affectionate father, and the court ordered forensic psychological report supports these observations as well. Clearly, the defendant could have and should have acted better on many occasions, but the court finds that most, if not all, of the defendant's behavior was reactive to the plaintiff's attacks, and not initiated by the defendant. Even the defendant's apparent romantic involvement with the wife of the plaintiff's paramour, began long after the defendant learned of his wife's affair, and only after he had appealed to his wife, unsuccessfully, to end her affair to save their marriage for the sake of the children. Moreover, critically, the defendant recognizes his bad behavior, acknowledges it and takes responsibility for it, whereas the plaintiff does not. The defendant [*6]readily admits that in anger he has made disparaging remarks, and has involved Bryanne and his other children in this divorce, whereas the plaintiff does not. This pattern of the plaintiff's failing to acknowledge her improper behavior and its role in the demise of her marriage, and its deleterious effects on the children, is also confirmed in the court ordered psychological report. Consistently, even the plaintiff's former supervisor, from a job for which she was terminated for cause, noted the plaintiff's inability or unwillingness to recognize her own improper behavior and its impact on that organization.

The defendant has indicated his strong desire to repair the relationship between Bryanne and the plaintiff, and the defendant has encouraged his daughter to speak with her mother and urged her to resume counseling. When asked what type of visitation the plaintiff should have if the defendant were awarded custody of the children, the defendant unhesitatingly testified that the plaintiff should have liberal access, with frequent visitation, and the defendant indicated his willingness to be flexible in his schedule to accommodate the plaintiff. By contrast, when the plaintiff was asked the very same question, she initially could not answer, and, then, reluctantly offered supervised visitation. This is consistent with the plaintiff's behavior throughout this divorce, where she has acted as an obstructionist, limiting or making difficult the defendant's contact, communication, and interaction with his children. When, for example, the defendant was barred from calling the marital residence, by an order of protection obtained by the plaintiff, and later dismissed as unfounded, the plaintiff took away Bryanne's cell phone, cutting off the defendant's only avenue for communication with his daughter. Notices of school events sent to the plaintiff were never forwarded to the defendant, causing him to miss many memorable occasions, including graduation ceremonies. Of far greater significance and concern was the plaintiff's failure to tell the defendant about Bryanne's thinly veiled autobiographical school essay in which she expressed dangerous and troubling suicidal ideations. The essay entitled: "A Will to Die", depicted a strained relationship between a mother and her teenage daughter who is contemplating suicide. While the plaintiff notified school officials, she failed to ever tell the defendant, who only learned about the essay when he accidentally came upon it in the marital residence. As it is reasonable to assume that this essay was kept from the defendant because of its unfavorable depiction of the plaintiff, it serves as a stark example of the plaintiff's willingness to compromise the defendant's parental rights and the well being of her own child, in order to further her cause in this divorce, and to further her own self-interest in her ongoing battle with the defendant.

A strong and important factor that must be considered in any custody determination is whether a parent is or may be attempting to alienate a child's affection for the other (see, Walden v. Walden, 112 AD2d 1035). Indeed it has been said that "interference with the relationship between the child and the non-custodial parent is an act so inconsistent with the best interests of the child as to raise a per se probability that the offending party is unfit to act as a custodial parent" (Barbato v. Barbato, 264 AD2d 792; see also, Zafran v. Zafran, 306 AD2d 468). Comments made by the plaintiff to Bryanne that her father was abusive, and that "she hoped that Bryanne did not end up with someone like him", appear to have backfired for the moment, but sometimes it takes time before alienating behavior takes hold, and the courts have acted to counter such adverse effects (see, Prugh v. Prugh, 298 AD2d 569; Maloney v. Maloney, 208 AD2d 603; Daghir v. Daghir, 82 AD2d 191). The court finds that the record in this case clearly [*7]establishes such parental alienation by the plaintiff against the defendant.

Another related and important factor to consider is a parent's ability to foster meaningful contact with the other parent. A court must consider which parent is better able to assure meaningful contact with the non-custodial parent (see, Gorelik v. Gorelik, 303 AD2d 553). Again, for the reasons stated heretofore, clearly, the defendant has demonstrated a more mature appreciation of the need for appropriate parental access and contact (see, Nehra v. Uhlar, 43 NY2d 242, 248; Plaza v. Plaza, 305 AD2d 607). On the question of the parties' financial ability to provide for the children, while child support orders are available to address financial imbalances and to provide an appropriate amount of funding for a child's care, the defendant is clearly in a stronger position to provide for the children's material needs.

On the question of stability, and consideration of what disruptive impact the custody determination will have on the children, the court notes that the children have lived together with both parents under the same roof until just recently, and both parents intend to continue to live in the children's current school district, thus minimizing any disruptions in the children's lives. The plaintiff has indicated a desire to sell the marital residence. The defendant, on the other hand, intends to stay there with the children, if awarded custody, thereby allowing the children to stay in the home that they have known all their lives, and to continue with existing friendships and relationships (see, Matter of Bryant v. Nazario, 306 AD2d 529).

An additional factor the court must consider is that given the estranged relationship between the plaintiff and Bryanne, any award of custody to the plaintiff would, at least at the present time, separate siblings. This, of course, runs contrary to the general rule "that absent an overwhelming need to do so" it is in the child's best interest to continue living with his or her siblings (see, Eschbach v. Eschbach, 56 NY2d 167; Matter of Ebert v. Ebert, 38 NY2d 700; Obey v. Degling, 37 NY2d 768). To separate them, unnecessarily, is likely to be traumatic and harmful (see, Obey v. Degling, supra at 771; see also, Eschbach v. Eschbach, supra at 173).

The defendant has indicated that once the clouds of this divorce proceeding and its attendant allegations have lifted, he will be able to continue with a regular work schedule, and is willing to forego overtime if awarded the custody of his children. The defendant has also indicated that his parents, with whom the children already enjoy a close relationship, stand ready, willing, and able to assist him whenever needed.

Finally, while it is true that the recommendations of a court appointed Law Guardian are not determinative in a custody dispute, the Law Guardian's recommendations and findings are entitled to some weight (see, Keating v. Keating, 147 AD2d 675; Matter of Burke v. White, 126 AD2d 838, 841). Here, the Law Guardian unequivocally recommended that custody of the children be awarded to the defendant father with liberal visitation to the plaintiff mother, and for the reasons set forth in this decision, the court agrees.

In this case, it is clear that the plaintiff's anger and hostility toward the defendant has made her unfit to be the custodial parent "since her attitude would substantially interfere with her ability to place the needs of the children before her own in fostering a continued relationship with the noncustodial parent" (Young v. Young, 212 AD2d 114; Janecka v. Franklin, 150 AD2d 755, 757; Matter of Mahoney v. Marrano, 134 AD2d 834).

As upsetting and disappointing as this decision may be to the plaintiff, it is the best interests of the children, not the emotional needs of the parents, which controls custody [*8]determinations (see, Braiman v. Braiman, 44NY2d 584; Eschbach v. Eschbach, supra). Accordingly, based on the totality of the circumstances, the defendant father is awarded legal and residential custody of the couple's three children (see, Fanelli v. Fanelli, 215 AD2d 718, 719).

While it has been said that excessively liberal visitation is inconsistent with an award of sole custody, "a noncustodial parent is entitled to meaningful visitation", and the case at bar is somewhat different than an ordinary custody case (see, Matter of Morash v. Minucci, 299 AD2d 486). "The only absolute in the law governing custody of children is that there are no absolutes" ( Friederwitzer v. Friederwitzer, 55 NY2d 89 at 93). The parties to this case are literally not candidates for joint custody because joint parenting requires cooperation, consideration, and respect, not anger, animosity, and manipulation. The court's selection of one parent as legal custodian, should, if nothing else, give the children greater stability and avoid the roller-coaster treatment which this couple's inability to agree has subjected them too heretofore. The permutations of precisely how many hours each parent gets with the children vis-a-vis each other, is less relevant in this case, given that the parties will be living in close proximity in the same school district. Indeed, the defendant himself testified that he had no problem with the plaintiff seeing the children two or three days during the week, helping with school work, handling school appointments, doctor's appointments, and other responsibilities.

Accordingly, the following visitation schedule shall take effect on the date of entry of the Judgment of Divorce:

1. Mid-week visitation shall occur every Tuesday from 5:00 pm to Wednesday morning school drop-off and every Thursday afternoon from 5:00 to 7:30 pm.

2. Alternate weekends from 6:00 pm on Friday to Monday morning school drop-off, extending to Monday evening at 7:00 pm on all Mondays which are school holidays falling on the plaintiff's alternate weekend visitation.

3. The parents shall alternate the children's vacation periods from school for the Winter recess, Spring recess, and Christmas recess. Such periods shall begin with the children's dismissal from school on the last day prior to such vacation period and shall end at 7:00 pm on the day prior to their return to school. The plaintiff shall have this year's Christmas recess to commence the alternating schedule.

4. During even numbered years, the plaintiff shall have visitation with the children on the following holidays from 9:00 am through 9:00 pm; New Year's Day; President's Day; Memorial Day; Labor Day; Veteran's Day; Christmas Eve.

5. During odd numbered years, the plaintiff shall have visitation with the children on the following holidays from 9:00 am through 9:00 pm: Martin Luther King Day; Easter Sunday; Independence Day; Columbus Day; Thanksgiving Day; Christmas Day.

6. The parties shall divide the summer vacation period equally alternating two week periods beginning the first Friday after the end of the school calendar. The first two week period shall be the plaintiff's in even years.

7. The plaintiff shall be entitled to visitation with the children on Mother's Day from 9:00 am through 7:00 pm.

8. The defendant shall be entitled to visitation with the children on Father's Day from 9:00 am through 7:00 pm.

9. Each of the parties shall be entitled to visitation on their own birthdays from 9:00 am [*9]through 7:00 pm except for school days when visitation shall begin at the end of the school day.

10. Each party shall be entitled to a maximum of two hours of visitation with the children on the child's birthday, as mutually consented to by the parties.

11. The plaintiff shall be entitled to visitation with the children when the defendant is on military leave, which shall supercede the parties custody and visitation schedule.

12. Each party shall be entitled to reasonable telephone access with the children when they are in the custody of the other parent; and each party shall ensure that the other has the ability to telephone the children when they are being cared for by their respective grandparents. Any holiday, birthday or vacation period visitation shall take priority over regularly scheduled weekend or weekday visitation without adjustment unless consented to by the parties. For all visitation, pick-up and drop-off will be at a mutually agreed neutral site outside the immediate vicinity of the marital residence's neighborhood.

13. No parent can sleep over any other romantic interests house with the children there for a period of one year.

14. The children, for a period of one year, shall not be present with the romantic interest of a parent without the romantic interest's own children also being present.

15. The children are permitted to continue to play with their next door playmates.

16. The defendant shall make every effort to arrange for therapy for Bryanne, as she will not be able to participate in visitation under the current circumstances, but with therapeutic intervention, and the defendant's support and encouragement, visitation should be able to commence for her in the near future.

17. The plaintiff will be entitled to inspect and review her children's school records (see, 20 USCA 1232 (g); see also, Education Law § 3212). Each parent is entitled to attend any public event which the children are or become involved in and the defendant shall keep the plaintiff informed of all such activities.

18. Each parent will be entitled to access information from any pediatrician, general physician, dentist, mental health professional, consultant, or specialist attending to the children.

19. The parties are directed to, in good faith, jointly consult with each other regarding decisions pertaining to the children's health and education, with the defendant having final decision-making authority.

On the question of the plaintiff's request for maintenance, the plaintiff is college educated, holding a bachelor's degree plus six credits toward a master's degree, and is gainfully employed at an insurance company earning $35,800 per year. The plaintiff seeks a maintenance award to allow her to grow in her current position and achieve salary increases. Taking into consideration the relevant factors, including the long duration of the marriage, the plaintiff's age, the parties' prior standard of living, the separate property retained by each party, and their respective net equitable distributive awards of marital property, the defendant's higher earnings and earning capacity, as well as the fact that the defendant as custodial parent will be bearing a greater financial burden which the plaintiff is economically incapable of satisfactorily defraying, the court finds that an award of maintenance is warranted in the amount of $150 per week for a period of three years(see, Domestic Relations Law, § 236[B][6][a]; Corless v. Corless, 18 AD3d 493; Wortman v. Wortman, 11 AD3d 604, 606; Comstock v. Comstock, 1 AD3d 307; Mazzone v. Mazzone, 290 AD2d 495; Alvares-Correa v. Alvares- Correa, 285 AD2d 123; Finkelson v. [*10]Finkelson, 239 AD2d 174).

In calculating the amount of child support pursuant to the Child Support Standards Act ( hereinafter CSSA) (see, Domestic Relations Law § 240 [1-b]), the plaintiff's income based on her trial testimony is $35,800 per year, and, after deducting FICA of $2,738.70, is $33,061.30. The plaintiff is to receive $7,800 per year representing maintenance, for a total adjusted income of $40,861.30. The defendant's income based on his trial testimony, and 2004 Federal Income tax return is $61,646 per year, and, after deducting FICA of $4,715.91, is $56,930.09. The defendant is obligated to pay $7,800 per year for maintenance, for a total adjusted income of $49,130.09. The defendant has earned higher amounts in years past, but those salaries reflect overtime hours which the defendant will be foregoing, in futuro, as a result of his obligations to his children as the custodial parent. The combined parental income of the parties is $89,991.39. The plaintiff's pro rata share of the combined income is 45.5% and the defendant's pro rata share of the combined income is 54.5% The applicable child support percentage for three children is 29% (see, Domestic Relations Law, §240 [1-b][3][iii]). The basic child support obligation on the first $80,000 of combined income utilizing that percentage is $446.15 per week. The plaintiff's pro rata share of the basic child support obligation on the first $80,000 of combined income is $203 per week, representing 45.5% of the parties' combined parental income per year. The basic child support obligation above $80,000 of combined income is $55.72. The plaintiff's pro rata share of the basic child support obligation above $80,000 is $25.35 per week, representing 45.5% of the parties' combined income per year. Under the circumstances of this case, and, as permitted by the CSSA statute, the court will not apply the CSSA guidelines to the portion of combined parental income above $80,000, and instead will rely upon the discretionary factors listed in the statute (see, Domestic Relations Law, §240 [1-b][c][3] and [f]). Specifically, considering the fact that as financially strapped as the defendant may be, the plaintiff still earns substantially less than the defendant, and given the very limited income of the plaintiff, and the fact that the children will be in the plaintiff's care for significant periods of time, as well as the tax consequences, and the children's prior standard of living, an award of the full CSSA amount would be unjust and inappropriate. Thus, the plaintiff is obligated to pay to the defendant, as and for her pro rata share, the sum of $203 per week. This sum shall be payable to the defendant directly at his residence, by check or money order. Upon termination of the defendant's maintenance obligation, the child support obligation for the plaintiff shall be modified to the sum of $162.84 per week, representing 36.5% of the parties combined parental income on the first $80,000. The parties shall share the tax exemptions for the children , since each is a wage earner contributing to their children's support. Taking into consideration the levels of their respective contributions to the children's financial needs, and their respective financial circumstances, the defendant shall be entitled to declare the parties two youngest children as dependents on his income tax returns, while the plaintiff may claim their oldest child as a dependent(see, Junkins v. Junkins, 238 AD2d 480; Burns v. Burns, 193 AD2d 1104, affd 84 NY2d 369).

The parties shall maintain in effect any currently existing health care insurance for the benefit of the children including dental, orthodontia, psychiatric, psychological, and mental health coverage; and the plaintiff shall be responsible for her applicable pro rata share, referenced above, for future unreimbursed health care expenses for which medical insurance is available, but payment is excluded by the insurer as a co-payment or deductible. [*11]

The plaintiff and the defendant shall each obtain and/or maintain a life insurance policy in the amount of $200,000 naming the other party one-half irrevocable beneficiary and naming the children of the marriage one-half beneficiaries of the remaining portion of the life insurance policies. The plaintiff and the defendant shall each maintain the life insurance policies until the youngest child turns 21 or becomes emancipated.

Turning to the remaining financial aspects of this divorce, the parties are a couple of limited means, and their finances fairly straightforward. There is, in fact, more agreement than disagreement between them on the proposed disposition of their assets.

This was a marriage of long duration, with both parties making economic contributions, and both parties of approximately the same age, and in good health. The defendant earns significantly more than the plaintiff now, and as of the commencement, but both parties were on fairly equal economic footing at the time of the marriage. Considering these factors along with the entirely non-liquid nature of the parties assets, the court finds the following dispositions to be equitable (see, Domestic Relations Law § 236[B][5][g]; see also, Lipovsky v. Lipovsky, 271 AD2d 658).

Both parties agree that the couple's vacation home in Pennsylvania, presently valued at $125,000 and purchased in 2003 utilizing a home equity line of credit off the marital residence, should be sold, and the proceeds divided equally after payment of the debt on the home, and any outstanding marital debt as set forth herein. The judgment of divorce shall provide accordingly.

The plaintiff has asked that the marital residence, presently valued at $450,000 also be sold, and the proceeds divided equally after payment of the debt on the home. The defendant has asked to be permitted to buyout the plaintiff's equity interest in the marital residence or, alternatively, that the home be sold, and the parties split the proceeds equally after payment of the debt on the home. The court will grant the defendant's request for a buyout in order to afford the children the stability of staying in the only home they have known their whole lives (see, Nolan v.Nolan, 215 AD2d 795; Poretsky v. Poretsky, 176 AD2d 713; Blackman v. Blackman, 131 AD2d 801; Patti v. Patti, 99 AD2d 772; Damiano v. Damiano, 94 AD2d 132). The parties shall close title no later than 90 days from the date of entry of judgment. In the event title does not close, the home shall be placed up for sale immediately, and, upon sale, the net proceeds split equally between the parties.

The parties have outstanding credit card balances with several different creditors. Domestic Relations Law 236 § (B)(1)(c)provides that outstanding financial obligations incurred during the marriage, which are not solely the responsibility of the spouse who incurred them, may be offset against the total marital assets to be divided. However, there must be an offer of proof that the debts constitute marital expenses ( see, Phillips v. Phillips, 249 AD2d 527; Feldman v. Feldman, 204 AD2d 268; Brundage v. Brundage, 100 AD2d 887). Both parties proof, by way of submissions and testimony, is woefully inadequate in this regard. The court finds that the evidence establishes the following credit card obligations as marital debt existing at the time of commencement, and incurred for the marital expenses noted parenthetically: P.C.Richards-$388(family video recorder), Kohl's-$160(children's clothes),Macy's-$260.00(children's clothes),Children's Place-$135(children's clothes), Old Navy- $120(children's clothes), Home Depot-$1,200(home improvements), Bank of New York-$2,100(overdraft liability). Neither party established who actually incurred, let alone for what purchases or [*12]purposes, the outstanding balances on two MBNA credit card accounts with commencement debt of $11,000 and $13,000 respectively. In the absence of proof, the court will not apportion responsibility for these two accounts, and the parties will remain separately liable for repayment (see, Phillips v. Phillips, supra). For the same reasons, each party shall remain separately liable with regard to any of their other outstanding credit card obligations not referenced in this decision.

As to the loans which the plaintiff alleged were given to her by family members to cover her legal fees and other expenses, the court is without jurisdiction to grant affirmative relief (see, Prince v. Prince, 247 AD2d 457; Reinisch v. Reinisch, 226 AD2d 615, 616).

At the request of the plaintiff, and with the consent of the defendant, the parties Isuzu Trooper, and trailer(pop-up camper),will be put up for sale immediately upon entry of judgment, and the proceeds split equally between them. The defendant shall retain his Yamaha motorcycle, and remain responsible for the outstanding loan incurred for its purchase, and the plaintiff shall retain her Saturn vehicle and be responsible for any loan payments outstanding for its purchase. The defendant shall retain his rifles and hunting equipment. At the request of the plaintiff, and with the consent of the defendant, the plaintiff shall retain and, to the extent that the defendant still possesses, be delivered, all of her jewelry and her mother's jewelry, which was set out in detail on the record, and uncontested at trial, as well as her mother's rocking chair, her Wedgewood china, Coach and Louis Vuitton bags, and the jackalope.

Neither party has presented any details whatsoever as to the type or value of the furnishings in their respective residences. Given this fact, and the fact that the parties are now living apart, and that the children will be residing in the marital residence, any and all furnishings presently in the marital residence shall remain there, unless otherwise consented to by the parties.

Other than the defendant's police pension and deferred compensation plan both of which were initiated after the couple was married, there are no savings or checking account funds available for distribution. The police department pension, and deferred compensation plan valued at $45,683.39 at the commencement of this action, shall be equally divided between the parties by means of a qualified domestic relations order pursuant to the Majauskas formula which shall include pre-survivor benefits (see, Majauskas v. Majauskas, 61 NY2d 481; Olivo v. Olivo, 82 NY2d 202). The plaintiff is directed to prepare and submit the qualified domestic relations orders necessary to effectuate the transfers no later than thirty days after entry of judgment.

The defendant seeks a credit for one-half of the $30,000 to $40,000 in lost earnings which the family sustained as a result of the now discredited allegations brought by the plaintiff, which caused the defendant to lose his gun privileges, detective rank, and overtime opportunities. The court agrees that the plaintiff's blatant and unfounded allegations cost her family, and most importantly her children, desperately needed funds, and constituted an entirely wasteful dissipation of assets (see, Domestic Relations Law § 236[B][5][d][11]; Gonzalez v. Gonzalez, 291 AD2d 373; O'Sullivan v. O'Sullivan, 247 AD2d 597). Accordingly, the court will award the defendant a credit for $15,000 to be offset in either the buyout or proceeds from the sale of the marital residence. The court will not, however, award counsel fees as requested by the defendant. While the plaintiff's behavior has clearly been obstructionist, an outright award of counsel fees to the defendant is not warranted . Indeed, under normal circumstances, the [*13]defendant, being the monied spouse, could have been expected to contribute on a pro-rata basis towards the plaintiff's counsel fees. The court, having considered the equities of the case, and the financial circumstances of the parties, does not believe that the pendulum should be swung full circle to make a counsel fee award to the defendant instead of from the defendant (see, Domestic Relations Law, § 237; DeCabrera v. Cabrera- Rosete, 70 NY2d 879, 881; Levine v. Levine, 179 AD2d 625,626). Instead, in recognition of the plaintiff's role in causing needless additional litigation and concomitant counsel fees, the court will deny her application for counsel fees and leave both parties responsible for their own fees (see, Bernstein v. Bernstein, 18 AD3d 683; Maimon v. Maimon, 178 AD2d 635; Chase v. Chase, 208 AD2d 883; O'Brien v. O'Brien, 66 NY2d 576). Similarly, in consideration of the foregoing, as well as the court's disposition of the marital assets, the parties are directed to pay equal shares of the Law Guardian's fees, the pension and real estate appraisal fees, and the forensic fees.[FN2](see, Ferro v. Ferro, 19 AD3d 363; Bernstein v. Bernstein, 18 AD3d 683; Rupp-Elmasri v. Elmasri, 8 AD3d 464; Pascarelli v. Pascarelli, 283 AD2d 472; Rosenbaum v. Rosenbaum, 270 AD2d 242; Petek v. Petek, 239 AD2d 327).

Settle Judgment on Notice.

Dated: 10/28/05___________________________

HON. JOSEPH C. PASTORESSA

J.S.C. Footnotes

Footnote 1: The plaintiff set forth a sufficient basis for the granting of a divorce on the ground of constructive abandonment, and the defendant neither admitted nor denied said ground. Accordingly, The plaintiff is awarded a Judgment of final and absolute Divorce with the terms thereof to be in accordance with the dictates of the within decision( see, Domestic Relations Law § 170[2]).

Footnote 2: If the parties agree to permit the issues of the extent and value of the Law Guardian's services to be determined by affidavit, a stipulation to that effect shall be presented to the court, along with the requisite affidavits, for review and final approval by the court( see, Burns v. Burns,193 AD2d 1104,modified on other grounds, 84 NY2d 369; Gilmore v.Gilmore,138 AD2d 347). In the event the parties are unable to agree, an evidentiary hearing will be conducted( see, Devivo v. Devivo, 2 AD3d 483;Patterson v. Patterson,302 AD2d 507).