F.M.C. v F.A.C.

[*1] F.M.C. v F.A.C. 2006 NY Slip Op 51122(U) [12 Misc 3d 1169(A)] Decided on June 7, 2006 Supreme Court, Nassau County Ross, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 7, 2006
Supreme Court, Nassau County

F.M.C., Plaintiff,

against

F.A.C., Defendant.



XXX

Robert A. Ross, J.

This matrimonial action was tried before me without a jury on February 9, 14, 15, March 10, 13, 14, 15, 16 and 20, 2006. Counsel to both parties were afforded an opportunity to submit memorandums of law, which I have reviewed and carefully considered.

GROUNDS FOR DIVORCE

The defendant withdrew his previously interposed answer to the extent of neither admitting or denying the allegations of constructive abandonment (Domestic Relations Law §170[2]). Accordingly, the plaintiff is granted judgment of divorce on the grounds as alleged. Gonzalez v. Gonzalez, 262 AD2d 281; Silver v. Silver, 253 AD2d 756.

DETERMINATION OF FACTS/TRIAL TESTIMONY

Many of the issues herein are fact sensitive, and during the course of the trial, I had an opportunity to hear and gauge the credibility of the plaintiff and the defendant. See, Volmer v. Volmer, 116 AD2d 960. Inconsistencies in defendant's accounting of his finances, his body language, failure to produce relevant discovery materials, and even preparing financial documents during the course of this trial, had an impact on my assessment of defendant's account of his finances. Zaremba v. Zaremba, 237 AD2d 351. His testimony was fraught with a wholesale absence of business formalities that would be part of a legitimate corporate existence of his medical practice. Acknowledgments of inadequate capitalization and use of corporate funds for personal rather than business purposes compounded the financial picture he detailed. The payment of considerable expenses, including his girlfriend's mortgage by the professional corporation, as well as her access to his personal and business accounts, all significantly undermined his credibility. See, Scammacca v. Scammacca, 15 AD3d 382; Peri v. Peri, 2 AD3d 425. [*2]

STATEMENT OF FACTS

The parties were married on July 16, 1983 in Yucatan, Mexico. There are two (2) children of the marriage, P. A. C., born July 9, 1988 and F. M. C., born October 23, 1989. Prior to the marriage, the defendant had obtained a Doctor of Medicine and Surgery Degree from the University of Yucatan, Mexico. Shortly after the marriage, he had been a practicing surgeon there as well.

The parties moved to Belize, where the defendant was employed by the Belize government as a physician, while also working part-time in his father's medical practice. Three years later, in or about January, 1987, the parties emigrated to the United States. Between 1987 and 1990, the defendant worked without compensation as a research associate at Stony Brook University while the wife supplemented their income in various jobs to support the family, including delivering "Pennysaver" newspapers and selling sneakers in the flea market, sometimes simultaneously.

Upon entering the United States, defendant initially obtained a six (6) month tourist visa and during that period obtained an H-1 ("Distinguished Professional") visa as a result of his employment in a non-compensatory position as research associate at Stony Brook University. During this three year period, the parties resided with the plaintiff's family, who provided living accommodations without charge and supplied virtually all of their living needs without cost. Plaintiff did not pursue any career-oriented goals for herself, with defendant's career goals being her primary concern.

In addition, during these periods, the parties were self employed in a corporation formed by plaintiff's cousin, an attorney, performing health screenings. This work did not require a license, and each of the parties participated in various functions. During this period, Mrs. C. had two children, P., born July 9, 1988, and F., born October 23, 1989, for whom she cared while she also worked outside the home. She was primarily responsible for the household cooking, cleaning and shopping for her children and husband.

Beginning in 1990, Dr. C. became employed for a three (3) year period as an Assistant Professor of Anatomy and Pathology at the New York College of Osteopathic Medicine (NYCOM) earning $17,000.00 per annum. His earnings did not increase during the three (3) year period of time he was so employed. Throughout this period, Dr. C. took, but failed, the medical examinations necessary to become a licensed physician in the United States. Despite the fact that the parties spent their savings on a review course for Dr. C., he was unable to qualify and pass his foreign medical graduate boards. As a result, he was not licensed to practice medicine.

In 1993 the defendant was admitted as an advanced placement student (second year) at New York College of Osteopathic Medicine "Immigrant Physicians Program." He graduated from this program in May, 1996 and was awarded a Doctor of Osteopathic Medicine Degree at [*3]that time.

In July, 1996, the defendant commenced a residency at Nassau County Medical Center in ophthalmology. His income during the residency was approximately $42,000 per year.

In February, 1998, the parties separated. The wife commenced this divorce action on November 29, 1999. The husband completed his ophthalmology residency in June of 2000 and moved to the State of Florida, and in July of 2000 the husband commenced a one year fellowship in opthalmology at the Beraja Medical Institute in Miami, Florida. In July, 2001, after completing the opthalmology fellowship, the husband began working at the Levin Eye Center in Orlando, Florida, at an annual salary of $87,000. His employment at the Levin Eye Center continued to February, 2003.

The husband formed a Professional Corporation known as F.A.C., D.O.P.A. (herein "DOPA") that he used to deposit all compensation from the Levin Eye Center, as well as his private practice. In February, 2003, the Levin Eye Center was sold and the husband's employment terminated.

In April, 2003 and continuing to the present time, the husband has been engaged in the private practice of opthalmology as a principal of "DOPA." He is also a 75% stockholder in Eyecon Optix Corp. (herein "EYECON"), a corporation involved in the retail sale of eyeglasses and assorted accessories. DOPA and EYECON operate from the same rental facility, located at 12479 South Orange Blossom Trail, Orlando, Florida. Commencing in April of 2003, DOPA also provided management and medical services to two medical clinics in Miami, Florida, The Gables Rehabilitation Center and the Charity Medical Group, Inc. The management services

provided by DOPA to the clinics included patient scheduling, medical billing, filing for insurance reimbursement and providing medical equipment as necessary. The husband provided the medical services to the clinics on behalf of DOPA and traveled from Orlando to Miami two or three days per week. DOPA used several independent contractors to assist in providing services to the clinics and in the operation of the DOPA opthalmology practice in Orlando.

In 2001, the husband reported wages of $69,102, and ordinary business income from DOPA of $30,620 for a total income of $99,722. In 2002, the husband reported wages from the Levin Eye Center of $86,869 and $46,002 from DOPA for a total income of $132,771. In 2003, the husband reported wages of $11,077 from the Levin Eye Center and reported income from DOPA of $91,250 for a total income of $102,327. In 2004, the husband received salary from Visual Health and Surgical Center of $43,077 and $68,292 from DOPA, for a total income of $111,459.

All of the income from the DOPA opthalmology practice in Orlando, Florida was also deposited in the DOPA checking account of Bank of America. DOPA's profit and loss statement for 2005 reflected income from services of $371,903.37 which were prorated, to include loan proceeds of $49,385.42. The profit and loss statement also itemized DOPA's 2005 expenses, [*4]including the husband's compensation of $107,988.50 and reflected a net loss of $9,675.85.

The husband testified that he had been providing support to the wife and children in varying amounts, since their separation, based upon his then income. In addition, he had paid substantially all of the children's parochial primary school expenses as well as their private secondary school expenses, leased a car for his son commencing in September, 2005, paid auto insurance and paid for the children's cell phone expenses. He did not provide health insurance for them, insisting he could make medical diagnoses "over the phone."

The wife testified that she obtained an Associates Degree from Suffolk County Community College in 2000 and shortly thereafter obtained employment as a dental assistant. Her W-2 forms reflected the following income:

2003$25,662.75

2004$29,212.50

2005$30,999.50

In addition to her income and the support provided by the husband, the wife received apartment rental income of $850 per month until relatively recently.

HUSBAND'S ENHANCED EARNINGS

Enhanced earning capacity is the present value, after tax, of the incremental income an individual earns over his/her expected work life, which can be attributable to additional education or training achieved during the marriage. With respect to professional degrees and licenses, the incremental income is considered to be the difference between the expected earnings without the additional degree and license [base-line earnings] and anticipated income with the degree and license [top-line earnings]. While "the enhanced earning capacity due to acquisition of a professional license during the marriage is clearly a marital asset subject to equitable distribution (see, McSparron v. McSparron, 87 NY2d 275, 286; O'Brien v. O'Brien, 66 NY2d 576, Domestic Relations Law §236[B][1][c];[5][c], the incorrect computations of top-line and base-line figures will affect the computation to that "difference." See, Sonnenfeld v. Sonnenfeld, 801 NYS2d 242 {7 Misc 3d 1005(A)} ; Grunfeld v. Grunfeld, 94 NY2d 696; McSparron v. McSparron, 87 NY2d 275. The value of defendant's professional medical degree should be based upon "actual prior earnings rather than on the estimated earnings of a hypothetical license holder." See, Grunfeld, McSparron, supra ; Fanelli v. Fanelli, 14 AD3d 592; Morales v. Morales, 230 AD2d 895.

In computing the base-line, a figure of $50,883 was used based on statistics from the U.S. Department of Labor for median income of a Hispanic male, of defendant's age with a Master's degree in biomedical research. But prior to the marriage, the defendant had already earned his Doctorate in Medicine in Mexico, and, in fact, prior to undertaking his medical training in the [*5]United States, he was an Assistant Professor of anatomy, pathology and microbiology at the New York College of Osteopathic Medicine from 1990 to 1993; he also conducted medical examinations for insurance companies through a company he operated with his wife.

The plaintiff called Mr. David Marcus, the court's "neutral appraiser," to testify. Although the methodology employed by Mr. Marcus was appropriate in performing his base-line calculations, statistics he used were questionable. He asserted that, with the educational background defendant attained prior to the marriage, he could have "possibly" pursued a career in "biomedical research." But these assumptions, correlated into "projected" base-line earnings, ignore that the husband, prior to the marriage, had already earned his doctorate in Medicine and Surgery, from a Mexican University. Such use of statistical earnings, as utilized here, and the hypothetical assumptions, however well-reasoned, are implausible. The expert's use of the husband's career path in biomedical research, ignored his actual earnings (true base-line) that a "pragmatic and individual analysis" would require. See, McSparron v. McSparron, 87 NY2d 275. See, also, Iwahara v. Iwahara, 226 AD2d 346. That the defendant had already earned his medical degree from a Mexican University, that he in fact practiced surgery in Mexico and practiced medicine in Belize, were all seemingly ignored without any record articulation. It is illogical that his training/background as a foreign physician had "no value" and was ignored in the context of other employment/career activities the defendant had undertaken.

For example, in making determinations regarding baseline earnings, Mr. Marcus also seemingly discounted without explanation, that the husband worked in a business he started, conducting medical examinations for insurance companies. Thus, an "assumption" that the husband would have pursued a career path in biomedical research, had he not received any further medical training, was without sufficient record articulation to warrant such assumption for the basis of Mr. Marcus' opinion.

With respect to the "top-line," the Marcus report utilized two models for the EEC calculation.

A first model was utilized to determine Dr. C.'s EEC based solely on statistical earnings. The Marcus report referred to statistics from Medical Group Management Association, which reported median annual compensation for an ophthalmologist was $236,353.00. This wholly theoretical application, based on "estimated earnings," was used to achieve a valuation of $1,336,666. I reject this approach. See, Guskin v. Guskin, 18 AD3d 814.

Based on the defendant's earnings, a second model was purportedly based on the husband's "actual" earnings in accordance with the dictates of McSparron v. McSparron, 87 NY2d 275, 639 NYS2d 265 (1995), but were factually flawed. Marcus had the husband's 2003 and 2004 income tax returns available to him, but he instead relied on the January, 2003 affidavit of the husband, which contained projections of his income. According to Marcus, this figure was derived from the affidavit sworn to by the husband in January of 2003 in which the husband projected his income for that year. However, contrary to Marcus' conclusions, according to the [*6]husband's income tax returns (Exhibit "13" in evidence), the husband's income was only $102,327 for the year 2003. Furthermore, in 2004 the husband's income was $111,459 and in 2005 his income was $120,000. Compounding this, the husband's "claimed" earnings that the expert used, were not his "actual" earnings, as would be required. See, McSparron, supra . If the financial information provided by the defendant was as inaccurate as the plaintiff urged, and as I have determined here, the top-line projection was flawed.

While the expert's incorrect computation of his base-line was questionable, the defendant's incredible accounting of his finances caused this expert to miscompute the topline, resulting in wholly unreliable computations. In the absence of proof to sustain valuation, the trial court cannot set values with speculation. See, Culnan v. Culnan, 142 AD2d 805. Unsupportable conclusions, without adequate articulation, cannot stand. Garner v. Garner, 111 AD2d 308, 309.

The enhanced earnings computations here result in dangerously unreliable projections. Compounding this further was the murky issue of defendant's student loans. While the amount of the student loans alleged by defendant was undocumented, and while a judge sitting as the trier of fact is presumed to be capable of ignoring inadmissible evidence (see, People v. Brown, 24 NY2d 168; People v. Falu, 138 AD2d 510), the defendant may have been entitled to a credit (deduction) for the balance of student loans that should be deducted from the value of the enhanced earning capacity attributable to the license. While loans taken for educational purposes prior to the marriage should not be deducted from the estimated amount of future enhancement (see Greenfield v. Greenfield, 234 AD2d 60; Vora v. Vora, 268 AD2d 470), any loans taken during the marriage to pursue the enhancement, should be credited. Colza v. Colangelo, 298 AD2d 914. From this record, it is abundantly clear that loans were taken, but it is equally unclear how much, or when.

Dr. C.'s testimony provided further illustrations of financial inaccuracies for the expert and this Court, that lend to the imputation of income, as I have done here.

In reviewing his tax returns, it was revealed that in his 2001 Form 1120S U.S. Income Tax Return for DOPA, Dr. C.'s Schedule K-1, Shareholder's Share of Income, Credits, and Deductions, reflected Dr. C.'s receipt of ordinary income of $30,620.00 from the corporation. While "Levin Eye Center" provided for Dr. C.'s malpractice and health insurance and continuing medical education, DOPA nonetheless deducted $1,500.00 of continuing education costs without any documentation. Further, in 2002 Dr. C. deducted on his Individual Income Tax Return (Schedule A - Itemized Deductions) unreimbursed employee expenses of $32,400.00.

A review of defendant's 2002 tax returns, the last full year prior to his sworn statement regarding his $168,000.00 income contained in his affidavits, Dr. C.'s reported gross income amounted to $165,332.00, as follows:

Wages (W-2 income) $82,769.00 [*7]

Non-passive income from Schedule K-1 (DOPA)$46,002.00

Increase in capital$32,561.00

$165,332.00

But the increase in capital was unexplained and phantom. Moreover, in Dr. C.'s affidavit, he falsely represented that his net income after payment of taxes and Social Security was $111,000.00, or that his total tax payments were approximately $57,000.00 ($168,000.00 - $111,000.00 = $57,000.00). However, his 2002 Form 1040 reported income taxes of only $16,519.00.

As noted above, based on the DOPA balance sheets, the practice purchased $34,000.00 of furniture and equipment and $25,000.00 of intangible assets, none of which could be explained by the defendant. The tax return fails to provide any detail as to the nature of the intangible assets.

A review of DOPA's profit and loss statement for 2005 clearly shows that the bulk of the claimed expenses are attributable to a corporation which purportedly lost money. Defendant has written off his corporate expenses, including his girlfriend's salaries from DOPA and Eyecon, together with an extraordinary amount of other personal expenses through the DOPA account, including his gardening and pool expenses for the house in which he lives with his girlfriend, frequent trips with her, and the mortgage on her residence.

Other business practices created a dizzying map, as well. With a purported decline in his income due to "hurricanes" in the area, he could not explain why the weather would curtail the public-at-large's need for vision care. Moreover, for a practice in which "he was not doing well," he could not explain a recent attempt (albeit unsuccessful) to purchase a commercial property for $600,000.00 to headquarter his practice.

For the foregoing reasons, Marcus' calculations with respect to the purported enhanced earning capacity attributable to the husband's medical training are factually flawed, in large part because the defendant was not forthcoming with accurate information necessary to make an appropriate "top-line" determination.

The expert here was left to utilize figures that purportedly represent "actual" earnings - - - but defendant's accounting of these earnings was wholly misstated, grossly misleading, and artfully inaccurate. Many of those assertions were proven false, and at odds with his tax returns and testimony. And, therein, lies the problem - - - irrespective of fault, should the defendant be penalized to the extent of being subjected to a grossly incorrect enhanced earnings valuation? Equally repugnant, should the plaintiff be placed in an enforcement purgatory for a staggering award of equitable distribution the Court knows to be inaccurate? As trier of fact, I cannot accept that for this expert's opinion to be valid, it is capable of being based upon false/erroneous information. While the credibility of the expert witness here is beyond reproach, the valuation technique was based on assumption of facts and inaccurate figures improperly relied upon by the [*8]expert. I reject same. See, L'Esperance v. L'Esperance, 243 AD2d 446.

The factual information, however inaccurate, prevented this expert from performing an appropriate evaluation because defendant was not forthcoming with all information necessary to make that evaluation. See Braun v. Braun, 11 AD3d 423. It could be an appropriate exercise of discretion for the Court to consider awarding other tangible assets to the wife. See Domestic Relations Law §236[B][5][d][a][13]. But the value of the only tangible asset here, the marital home, might very well leave the wife undercompensated for her interest in the enhanced earning capacity of defendant. Given that the Court does "not have the discretion to refuse to distribute property" Harrell v. Harrell, 120 AD2d 565; cf. LeVigne v. LeVigne, 220 AD2d 561, such an approach, in my view, would be unacceptable. Another approach I considered, but reject, is to establish the value of defendant's business to be the defendant's annual earnings. See, Griffin v. Griffin, 115 AD2d 587; Matter of Ward v. Ward, 94 AD2d 908. This, too, is problematic, since I cannot accurately determine the defendant's annual earnings, based upon the erroneous information he provided. His financial closets were full of skeletons, jumping out during cross-examination.

Given this dilemma, it would be inappropriate to equitably distribute an asset when the value cannot be established.

The rejection of the expert's opinion here, and the missing values that are a consequence of such rejection, warrant my consideration of all approaches to facilitate appropriate findings "considering the circumstances of the case and of the respective parties." See, Domestic Relations Law §236[B][5][c].

A "HYBRID" AWARD OF MAINTENANCE CAN RECOGNIZE

THE PLAINTIFF'S CONTRIBUTION

TO DEFENDANT'S CAREER

THAT CANNOT BE VALUED AND DISTRIBUTED UNDER THE

CIRCUMSTANCES OF THIS CASE

The trial court retains the flexibility and discretion to structure a distributive award equitably, but only after it has received evidence of the present "value" of the license and the working spouse's contributions toward its acquisition and considering the remaining factors mandated by the statute (see, Domestic Relations Law §236[B][5][d][1]-[10]. Then, and only then, it may make an appropriate distribution of the marital property including a distributive award for the professional license if such an award is warranted. See, also, O'Brien v. O'Brien, 66 NY2d 576. But here, no value was established and a distribution is impractical. See, McDicken v. McDicken, 109 AD2d 734.

In view of the distinct purposes of equitable distribution and maintenance, our Appellate Division has previously indicated that the treatment of a distributive award as maintenance is improper (see, Buzzeo v. Buzzeo, 141 AD2d 490, 491; Perri v. Perri, 97 AD2d 399, 400; see, also, Kennedy v. Kennedy, 256 AD2d 1048, 1049-1050; Mullin v. Mullin, 187 AD2d 913, [*9]914-915; Cohen v. Cohen, 184 AD2d 347, 348). Courts are duty bound by a bedrock principle of stare decisis, to adhere to determinations of the Appellate Division and our Court of Appeals. Ross Bicycles v. Citibank, 149 AD2d 330.

A cross referencing of equitable distribution provisions and maintenance provisions (see, Domestic Relations Law §236, Part B, subd. 5, par. d, cl [5]; subd. 6, para cl [1]) confers on the Court the authority to be flexible in establishing the form of recognition of the dependent spouse's claim. This gives me the statutory guidance and discretion to consider the contribution of the plaintiff to the defendant's career here. If the important precepts of our Court of Appeals in McSparron v. McSparron, 87 NY2d 275 and Grunfeld v. Grunfeld, 94 NY2d 696, in being "meticulous" in establishing values of enhanced earnings is to be followed, then a failure to establish these values, as is the case here, can be appropriately redressed by the statutory language contained in the maintenance statute, which recognizes a spouse's contribution to the other's career. The flexibility to distribute the value of the license as marital property, or, to take the license income into consideration in determining the licensed spouse's capacity to pay maintenance, emanates from our Court of Appeals. See, Grunfeld, supra , and from Domestic Relations Law §236[B][6][a][1].

This is not, at all, a re-allocation of a distributive award as maintenance, - - rather, it is an appropriate, permissible and necessary application of statutory considerations. If the Court is to have "broad discretion in fixing the amount and duration of maintenance," (see, Hartog v. Hartog, 85 NY2d 36; Wilner v. Wilner, 192 AD2d 524) then a circumspect exercise of discretion under the circumstances of this case, will permit the plaintiff to take her education, work skills and perseverance to a higher level in becoming self supporting, while continuing to realize the benefits of the enhanced earnings she contributed to. Those factors stressed by Hartog, the spouse's needs, the payor-spouse's ability to provide for those needs and the parties' pre-divorce standard of living, are especially underscored by the hybrid award of maintenance made here. That pre-marital standard of living, in this instance, was entirely based and predicated upon the plaintiff's exaltation of herself - - physically, emotionally and financially - - to the defendant's career path. Almost simultaneously with his arrival to that path, he chose to depart, leaving the plaintiff behind, with alarming disconnection to her and the children.

In this unique case, there are really two distinguishable species of maintenance that comprise one hybrid award - - one durational, to enable the plaintiff to become self-supporting; and the other non-durational, to recognize that factor which provides "for her contribution to the career or career potential of the other party." See, Domestic Relations Law §236 [6](a)(8).

IMPLEMENTATION

The amount and duration of maintenance are issues to be resolved in the sound discretion of the trial court after appropriate reflective consideration of Domestic Relations Law §236(B)(6)(a). See, Lombardo v. Lombardo, 255 AD2d 653, 654. The court must consider the "reasonable needs" of the recipient spouse in the context of the other factors and then, in its [*10]discretion, fashion a fair and equitable maintenance award. See, Domestic Relations Law §236(B)(6)(a)[1]-[11]; Hartog v. Hartog, supra .

Here, there is an enormous disparity in the respective incomes of plaintiff and defendant, as well as their future earning capacity and potential. Plaintiff's current employment is marginal and hourly, as she has sacrificed her own career as a result of the parties' mutual decision that she become a full-time homemaker and caretaker of the children while defendant pursued his medical studies and education leading to his attainment of a medical degree in the United States. Throughout their marriage plaintiff's employment was marginal and menial, delivering newspapers or working at flea markets. Subsequent to the parties'separation, plaintiff attended college to obtain a degree enabling her to work on an hourly basis as a dental assistant earning approximately $30,000 per annum. The general buoyancy and sheer quality of devotion to her family was understated, but high spirited and profound.

This Court must also consider the substantial disparity between the parties' present and future income capacities [DRL §236(B)(6)(a)(3)] and plaintiff's contributions to the household during the course of the marriage. [DRL §236(B)(6)(a)(8)]. This Court must consider not only plaintiff's sacrifices, but the direct contributions she made to the economic well being of the family by accessing rent free accommodations and engaging in direct employment while defendant attended medical school and deprived the parties of any real earnings during that period. Indeed, for the first three (3) years of their residence in this country, defendant had a non-compensatory position at Stony Brook, followed by only modest earnings of $17,000 per year at NYCOM.

If an award of maintenance is genuinely intended to "be tailored" to provide an incentive to become financially independent (see, DeNapoli v. DeNapoli, 282 AD2d 494; Granade-Bastuck v. Bastuck, 249 AD2d 444), then a dual award of maintenance here accomplishes that statutory purpose. This hybrid approach, considering that there is a failed valuation of an asset, enables her to become fully self supporting while simultaneously recognizing her contributions to defendant's career, while defendant continues his earnings over his lifetime. While the Equitable Distribution Law implicitly favors a fixed term of maintenance, the statutory scheme also recognizes that permanent maintenance may be a necessity under certain circumstances. See, Sass v. Sass, 276 AD2d 42. Here, where the plaintiff has already returned to school in an effort to become self-supporting, and is earning $30,000 per year, "economic independence may not be a realistic goal" (see, Sass, supra ). Consequently, this dual or hybrid maintenance award makes the statutory application of maintenance to be appropriate and circumspect, based upon "the reality" of plaintiff's circumstances. See, Blenk v. Blenk, 6 AD3d 283.

The wife is only 45 years of age. She is in excellent health and holds an Associates Degree from Suffolk County Community College. She is employed as a dental hygienist and earns approximately $31,000 per year. Although she has residential custody of the parties' two children, P., age 17 and F., age 16, both children are full time high school students. Furthermore, [*11]the wife will receive a distributive award of sixty percent of the equity in the marital residence at the time it is sold. I have considered that the husband has been providing support to the wife for a period in excess of four years. If durational maintenance were to be paid for three years, the plaintiff would be able to advance herself while the children are both in high school. Concurrently, she would continue to receive maintenance tax free, as provided herein, while the defendant, on the cusp of a promising ophthalmologic career, reaps the benefits of plaintiff's sacrifices.

The credibility difficulties with the defendant's version of his finances were replete with inconsistencies, in providing less than credible testimony and evidentiary submissions regarding

his actual income. See, Peri v. Peri, 2 AD3rd 425; Gleicher v. Gleicher, 303 AD2d 549, 549-550.

Dr. C.'s recitation of his earnings and income from the time he moved to the State of Florida were entirely incredible, unsupportable and utterly unreliable. A review of Dr. C.'s financial testimony mandates the conclusion that his income was substantially understated and his expenses overstated. He failed to account for all his income, his corporate gross receipts, while acknowledging his girlfriend's ability to utilize his corporate account at her sole discretion without accountability.

For example, Dr. C. testified he resides in a home with a swimming pool in a gated community, with numerous "amenities," in the State of Florida. That home is titled in the name of J. H., with whom he undertook a relationship while living in the State of New York prior to the commencement of the action for divorce. The mortgage, landscaping, and pool (maintenance) payments were made directly from Dr. C.'s professional corporate account, F. A. C., DOPA ("DOPA") by both defendant and his girlfriend.

Dr. C. testified he presented documents to his accountant for the calculation and determination of his income. On further examination, Dr. C. admitted that the ledger document relied upon to determine his income and the treatment of business expenses was prepared the night before trial, after he testified it had already previously been prepared.

The date of incorporation of DOPA was August 1, 2001, although the effective date of the S Corporation Election was January 2001 according to the tax return. While the corporation elected a cash basis method of accounting, accounts payable were recorded on the balance sheet, thereby reducing taxable income. In 2001, corporate reported gross receipts of DOPA were $69,000. Notwithstanding these gross receipts, no direct cost of sales, including medical supplies, were reported. During the three (3) years of 2001 through 2003, gross receipts continued to increase substantially from $69,000 to $126,000 and then to $299,000 - - - despite the dramatic increases in reported gross receipts set forth above, there was no officer's compensation, salaries, or wages paid to Dr. C. Furthermore, there were no distributions reported having been made to Dr. C.

In point of fact, no distributions to Dr. C. were reported on his tax returns for 2001 [*12]through 2003. Moreover, for example, in 2001, while the corporation reported net income of $29,170, no distributions were reported, and, no retained earnings were reported either. There are clearly unexplained inconsistencies in the reported net income and retained earnings. Indeed, the net income increased as follows:

2001 - $29,170

2002 - $46,002

2003 - $98,326

Absent any explanation, it would appear that there may have been unreported distributions to Dr. C.

During the same period, loans were inexplicably repaid, despite the fact that defendant could never explain any of the loan transactions nor could he produce any documents or evidence of such loans. Given the undocumented loans which were repaid, including a repayment to his girlfriend's sister in the amount of $5,000, the purported loans made by the corporation were unclear to me. The shares themselves were inexplicably given away - - "Eyecon" shares were originally owned 100% by Dr. C., then 75%, then 50% - - - these repetitive transfers having been made to his girlfriend without consideration or plausible explanation.

Upon testifying about receipts of cash, and after being instructed to produce deposit slips proving cash deposits, Dr. C. produced nothing. His explanations were incredible, if not disingenuous - - "I was in the back doing exams, while they were in the front collecting the cash."

Dr. C.'s testimony that he purportedly brought equipment to Mexico while he performed a "humanitarian mission" was tale-telling. That trip, in which the Government of Mexico paid for Dr. C. and his girlfriend's expenses to Mexico for a two week period, one week of which was spent allegedly treating patients in the resort area of Cancun, and the second in his parents' village, served as the basis for Dr. C.'s "charitable deduction" taken on his tax return. During this trip, obsolete equipment was "donated," and deducted as a charitable contribution, but only after he could not return it to the medical equipment dealer who had "tricked" him into buying it.

The most recent profit and loss statement produced by the defendant reflected gross income of $371,903. With the husband's compensation of $107,988, I believe that based upon the discussion herein and the inconsistencies I have detailed, there is a wholesale understatement of income and misstatement of expenses. Those expenses and perks paid to defendant's live-in girlfriend, as well, reflect income that should be attributable to the defendant.

Accordingly, the Court awards the wife $1,000 per week in maintenance, allocated as follows: $600 per week, or $31,200 per year for three years, durational maintenance to enable her to become self-supporting, and $400 per week or $20,800 per year for non-durational maintenance, after considering all of the statutory factors [*13]

With respect to tax implications of this maintenance award, IRS Code §71 and §215 provide that maintenance awards are taxable to the recipient and deductible by the payor unless the Court specifies otherwise, or the parties reside together (26 USCA §71 and §215). Under this authority, I direct that the periodic maintenance of $600 per week shall be taxable, but that the

non-durational maintenance award of $400 per week shall be tax-free. See Zizza v. Zizza, 306 AD2d 126.

In this instance, the wife and her family provided substantial familial and financial support after the parties entered the country, the wife was employed while also attending to the children, she assumed wholly disproportionate share of household work as a consequence of the husband's studies and training, and deference of the fruits of her labors (i.e., his practice) occurred after their separation, the wife is left to continue to fulfill these obligations while the husband has left to Florida, with his enhanced earning capacity intact. That factor in maintenance, the "contribution to career," is such a weighty factor here, that it requires this hybrid award of maintenance.

LEGISLATIVE CHANGE

Illustrating the difficulties of "enhanced earnings," New York State Matrimonial trial courts are faced, on a daily basis, with vexing dilemmas regarding inappropriate discount rates, double dipping, double counting, child support machinations and, as in the case here, valuation dilemmas.

I am mindful of one of the important findings of the New York State Matrimonial Commission's Report to the Chief Judge, chaired by Hon. Sondra Miller, which provides, at

p.65:

"Enhanced Earnings. An issue tangentially related to the valuing of

marital assets both of the payment of fees as discussed above and in making

equitable distribution is the concept of enhanced earnings. The Commission

received a great deal of comment and expressions of concern over the treatment

by New York courts of a spouse's "enhanced earnings capacity" as an asset

subject to equitable distribution in a divorce proceeding. Notably, New York

is the only state in the nation which has recognized such an "asset." Among the

concerns expressed on this issue are the intangible nature of the "asset," the

speculative nature of its "value" including the unfairness of creating a non-

modifiable award based on a projection of earnings, the cost of the valuation

process, the problems of double counting when coupled with maintenance and

child support awards and the multitude of litigation spawned by this concept that

has increased the cost and the length of matrimonial proceedings. The Commission

also recognizes the need to address one spouse's contributions to another's

career and increased earning capacity in any ultimate award on divorce. [*14]

Consistent with the Commission's mandate to reduce the cost and

length of matrimonial proceedings and to increase the public's confidence

in the fairness and rationality of the awards rendered by the courts, the

Commission recommends that legislation be adopted that eliminates a party's

"enhanced earning capacity" as a marital asset (emphasis added). The

legislation would also require that the trial court must consider a spouse's

contributions to the development of a spouse's enhanced earning capacity

in arriving at the equitable distribution of the remaining marital property

and, in cases where it is appropriate, shall order maintenance that does not

cease upon remarriage."

The proposed modifications to Domestic Relations Law § 236B, Subdivisions 5 and 6, provide, at Appendix L to the Commission's Report, provide for a statutory modification to permit compensatory maintenance, in lieu of enhanced earnings:

Proposed Revision To DRL §236B

Section 1. Subdivision 5 of Part B of Section 236 of the domestic

relations law, as added by chapter 281 of the laws of 1980, is amended to

read as follows:

(6) 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. The court shall not consider as marital property

subject to distribution the value of a spouse's enhanced earning capacity arising

from a license, degree, celebrity goodwill, or career enhancement. However, in

arriving at an equitable division of marital property, the court shall consider the

direct or indirect contributions to the development during the marriage of the

enhanced earning capacity of the other spouse.;

Section 2. Subdivision 6 of part B of Section 236 of the domestic

relations law, as added by chapter 281 of the laws of 1980, is amended to

read as follows:

6. Maintenance. a. Except where the parties have entered into an

agreement pursuant to subdivision three of this part providing for maintenance,

in any matrimonial action the court may order temporary maintenance or

maintenance in such an amount as justice requires, having regard for the standard

of living of the parties established during the marriage, whether the party in

whose favor maintenance is granted lack sufficient property and income to

provide for his or her reasonable needs and whether the other party has [*15]

sufficient property or income to provide for the reasonable needs of the other

and the circumstances of the case and of the respective parties. Such order

shall be effective as of the date of the application therefor, and any retroactive

amount of maintenance due shall be paid in one sum or periodic sums, as the

court shall direct, taking into account any amount of temporary maintenance

which has been paid. In determining the amount and duration of maintenance

the court shall consider:

(8) contributions and services of the party seeking maintenance

as a spouse, parent, wage earner and homemaker, and to the career or career

potential of the other party, and in considering the contributions to the career

or career potential of the other party, the court shall, where appropriate, award maintenance which is payable for a period of time subsequent to the remarriage

of the party receiving the maintenance;

c.The court may award permanent maintenance, but an award of

maintenance shall terminate upon the death of either party or upon the recipient's

valid or invalid marriage, unless specifically provided by the court in an order

rendered pursuant to paragraph (b)(8) of subdivision 6 of section two hundred

thirty-six of this part that the maintenance shall continue beyond such remarriage, or upon modification pursuant to paragraph (b) of subdivision nine of section two hundred thirty-six of this part or section two hundred forty-eight of this chapter.

The subject of "compensatory maintenance" in lieu of enhanced earnings, could be important in circumstances where one spouse significantly contributes to the enhancement of another spouse's earning capacity, and as here, where there are unvalued or insufficient assets to make a distributive award to accomplish equitable distribution. Our Court of Appeals has specifically rejected the employment of an alternative remedy in the form of rehabilitative or reimbursement maintenance, finding "a lack of statutory authority for the implementation of any such remedy." See, O'Brien v. O'Brien, 66 NY2d at 585-586.

But, Judge Meyers' cogent criticism of enhanced earnings in his dissent in O'Brien v. O'Brien forewarned, "[t]he equitable distribution provisions were intended to provide flexibility so that equity could be done." And 20 years later, Judge Smith's valorous dissent in Holterman v. Holterman, 3 NY3d 1, restated brilliantly, "[it] may be doubted whether an innovation (O'Brien doctrine) which has attracted so little imitation and so little praise, will endure forever." Clearly, with New York as the only remaining state in our country that continues to recognize the oft-criticized doctrine of enhanced earnings, and, with Chief Judge Kaye's Matrimonial Commission suggesting legislative remediation with a specific statutory antidote of compensatory maintenance, there is pause for our progressive and diligent New York State legislature to recognize a state-wide momentum that urges consideration. Clearly, this is a compelling matter that warrants legislative attention. [*16]

As it pertains to a trial court's treatment of statutory dilemmas, I embrace the succinct view that, "62 Senators and 150 members of the Assembly may have a closer connection to all of the people than do the members of the Judiciary, who after all, hear only the litigants in the cases that come before them." See, New York Law Journal, Letters to the Editor, James Edward Pelzer, Clerk of the Appellate Division, Second Department, May 25, 2006, p. 2, col. 5,6.

The statutory changes suggested by the Chief Judge's Matrimonial Commission should be considered to be part of a legislative agenda of input, suggestion and scrutiny to address those concerns as expressed by marked dissents of our Court of Appeals, and rejection of enhanced earnings by 49 other states. Deference to the legislature on this issue is judicially responsible, given the Court's obligation to be mindful of the precedential, consequential, and future effects of their rulings. See, Lauer v. City of New York, 95 NY2d 95, 100.

MARITAL RESIDENCE

The parties stipulated during the trial that the current fair market value of the marital residence is $355,000. The residence is encumbered by a mortgage, having a balance of $109,453.89 and a balance of $18,786.80 to a bankruptcy trustee, for total liens and encumbrances of $128,240.69. At the time of trial, the residence was occupied by the wife and the parties' two unemancipated children.

In view of the wife's need to occupy the marital residence for the benefit of the parties' unemancipated children, the wife should be awarded exclusive use and occupancy of the marital residence, together with its contents, until the parties' youngest child's 21st birthday, or is otherwise emancipated. See, Markopoulos v. Markopoulos, 274 AD2d 457, 710 NYS2d 636 (2nd Dept. 2000). Upon termination of the wife's exclusive occupancy, the premises should be offered for sale using the brokers selected by the parties, or if they cannot consent, they may make application to the Court for a fiduciary appointment of a broker. It must be noted that, while custody was not an issue disputed, there was no stipulation. The plaintiff shall have custody of both children, as she has assumed in the six year absence of the defendant. The defendant shall have reasonable visitation and telephone contact, as he has scheduled with the plaintiff. If either party wishes a formal visitation schedule, chambers can be contacted for record articulation.

In determining the parties' respective interests in the marital home, equitable distribution does not necessarily require equal distribution (Kobylack v. Kobylack, 96 AD2d 831) and the Court may award different percentages for different categories of marital property (Reina v. Reina, 153 AD2d 775). In setting forth all of those factors with respect to equitable distribution of this asset (see, Domestic Relations Law §236[B][5][d][6][a]; Ferlo v. Ferlo, 152 AD2d 980), I have especially considered that during this marriage, the wife worked, while also performing yeoman duties in the household. She has also maintained the household for the six years of defendant's absence. [*17]

Clearly, the defendant's resources and conduct throughout this litigation were directed to facilitate financial support to his girlfriend, for whom he has also purchased a home in her name. Without his co-signing of her mortgage, that purchase would not be possible. While the wife staved off foreclosures, he was pursuing his Florida lifestyle, and relegating the children to telephone medical diagnoses rather than actual health insurance. The financial machinations of the defendant were bloated with very real consequences, with the lone glimmer of hope being the perseverance of the plaintiff. The payment of his girlfriend's expenses through business deductions, however improper, flaunted the "economic partnership" that would otherwise warrant a 50-50 division of the asset. Defendant's pre-trial litigation conduct was reprehensible, requiring an almost total yeomanlike reconstruction of his financial picture by his trial counsel, who was retained before the trial. But even then, the Court was left with the previous "cut and paste" facts of his income to interpret a picture that was deceptive, if not deliberately intending to prevent a "level playing field" in this litigation. Same will not be ignored or countenanced.

The lack of plaintiff's contribution by the defendant to his wife and children was daunting. Plaintiff's indirect and direct contributions, and the "circumstances of the case and of the respective parties" (see, Domestic Relations Law §236[B][5][c]) warrant a division of the marital home in the following percentages - - 60% to the plaintiff and 40% to the defendant. See, Kobylack, supra .

For these same reasons, I also direct that the same division (60-40) shall be made on the retirement accounts of the defendant (Nassau Medical Center), all accumulated during the marriage, and all of which were depleted by defendant upon his move from New York to Florida.

CHILD SUPPORT

Child support is a "shared responsibility" which must be determined based upon needs of the children and parents' financial resources (Ullah v. Ullah, 161 AD2d 699). Domestic Relations Law § 240 (1-b), also known as the "Child Support Standards Act," requires the trial court to follow a three step process for determining the child support obligation: (1) calculation of the combined (emphasis added) parental income; (2) multiplication of the combined parental income up to $80,000 by the specified child support percentage, and allocation between the parties on a pro rata basis (emphasis added) unless application of the percentage is deemed "unjust and inappropriate" in consideration of the factors set forth in paragraph(f) as articulated in a written order; and (3) for the amount of combined (emphasis added) parental income over $80,000, application either of the child support percentage or the D.R.L. §240(1-b)(f) factors, and articulation of the reasons for the methods used. See Bast v. Rosoff, 91 NY2d 723, 726-727; see, also, Cassano v. Cassano, 85 NY2d 649, 652-655. Failure to articulate the basis for calculations under the C.S.S.A. requires that the child support aspects of a judgment be vacated and remanded. See, Harmon v. Harmon, 173 AD2d 98. Essential to proper application of the Child Support Standards Act, D.R.L. §240(1-b), is the correct determination of each parent's appropriate pro-rata share of the "combined parental income." See D.R.L. §240(1-b)(b)(4), F.C.A. 413[i][b][4]; Cox v. Cox, 181AD2d 201. The inclusion of each of the parties' "incomes" [*18]for purposes of determining the appropriate obligation of child support for the custodial and non-custodial parent, is clearly a statutory requirement. See, §240(1-b)(b)(5). In interpreting the statutory definition of "income" for purposes of child support, D.R.L. §240(1-b)(b)(5)(1) defines income as "gross (total) income as should have been or should be reported in the most recent federal income tax return."

The last available figures reflect that the defendant's income, before appropriate statutory deductions [see, Domestic Relations Law §240(1-b)], in 2005 was $120,000 and the plaintiff's income was $30,995. Child support is determined by the parent's ability to provide for their child, rather than their current economic situation. Kalesh v. Kalesh, 289 AD2d 202. In determining a party's child support obligation, a Court may impute income based upon the party's past earnings and income capacity. See, Zabezhanskaya v. Dinhofer, 274 AD2d 476; Philips v. Philips, 249 AD2d 527. A court is not bound by a party's account of his or her own finances, and where a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed. Rohrs v. Rohrs, 297 AD2d 317, 318; Peri v. Peri, supra .

Indeed, defendant's failure to provide proper documentary proof, and the absence of colorable explanation of inconsistent tax returns, coupled with all of the perks and benefits provided to defendant's girlfriend, clearly enable this Court to impute such income in determining child support and maintenance. Bittner v. Bittner, 296 AD2d 516; Mellen v. Mellen, 260AD2d 609; Collins v. Collins, 241 AD2d 725. DRL §240. It is well settled that maintenance and child support are determined on the basis of earning capacity, and "not actual or reported earnings." Pezza v. Pezza, 300 AD2d 555; Borra v. Borra, 218 AD2d 780.

During the course of his testimony, plaintiff's financial expert, utilizing statistical data, determined that an ophthalmologist should earn median income of $236,353.00. This Court, in reviewing his stated expenses, his testimony, and his net worth, imputes his income at $250,000.00. For reasons set forth herein, however, I have capped the combined child support at $150,000.

The Court's ability to impute income for child support and maintenance purposes is particularly appropriate where that party's reported income on his tax return is suspect. Westenberger v. Westenberger, 23 AD3d 571. I found compelling that the personal expenses of the defendant and his girlfriend were paid by the corporation's accounts, as were major purchases and mortgage payments for the home placed in the girlfriend's name. Throughout the trial, defendant characterized J. H., his girlfriend and paramour, as his "administrator," entitled to take "continuing education courses" with him throughout the country, who also had authority to make all deposits and withdrawals from his personal and professional bank accounts. She had blanket use of credit cards, and also managed all of his finances. They were both the purported mortgagors of the residence titled in her name, in which defendant resided. She and her sister were also alleged to have loaned funds to defendant's professional corporation, when no documents were produced establishing any loans. To the extent her "earnings" were based upon her employment with the defendant, it is clear, by any interpretation, that the funds loaned to [*19]defendant were his own. Those earnings were based on either a salary or percentages - - whichever version the defendant would have me believe, the payments, perks and living accommodations bear no relation to reasonable compensation.

I have also considered the maintenance award that the plaintiff has received here, and that application of basic child support guidelines to income capped at $80,000 would not be just and appropriate. See, Gluckman v. Qua, 253 AD2d 267. In articulating the reasons for applying the statutory percentages to income over $80,000 (see, Matter of Cassano v. Cassano, 85 NY2d 649), I have applied 25% (two children) of the first $80,000 and 25% of the next $75,000, for a "capped" total of $150,000 based upon the maintenance payments made by the defendant to the plaintiff; the likelihood of career advancement by the plaintiff and period of time (3 years) to facilitate same; the financial resources of the parties after their respective support obligations are paid; the higher standard of living the children would have enjoyed had the marriage not been dissolved; the husband's imputed gross income being substantially greater than the wife's (see, Domestic Relations Law §240 [1-b][c][3]).

Accordingly, I have utilized the following computations, applying the statutory obligation of 25% to the entire combined parental income after crediting the maintenance deductions and re-adjusting child support after the first branch of maintenance terminates:

Years 1 through 3

Defendant's income - ($250,000 minus $31,200 maintenance,

minus $20,800 maintenance) $198,000

Plaintiff's income - ($31,000 plus $52,000 maintenance) $ 83,000

[DRL §240(1-b)(b)(5)(i)]

Combined parental income - $281,000

Plaintiff's pro-rata share - .30 (83/281)

Defendant's pro rata share - .70 (198/281)

25% of first $ 80,000 - $ 20,000

25% of next $ 70,000 - $ 17,500

$150,000 capped combined parental income $ 37,500

x defendant's .70 pro rata share divided by 52 weeks = $ 504.80 per week

Years 4 and Beyond

Defendant's income -($250,000 minus $20,800 maintenance) $ 229,200 [*20]

Plaintiff's income - ($31,000 plus $20,800 maintenance) $ 51,800

Combined parental income - $ 281,000

Plaintiff's pro-rata share - .19 (52/281)

Defendant's pro rata share - .81 (229/281)

25% of first $ 80,000 - $ 20,000

25% of second $ 70,000 -$ 17,500

$150,000 capped combined parental income$ 37,500

x defendant's .81 pro-rata share - $30,375.00

Divided by 52 weeks = $ 584.13 per week

The payment schedules reflect proper application of the Child Support Standards Act, by calculation of child support after maintenance is deducted from the gross income. Amisson v. Amisson, 251 AD2d 274. In addition, the schedule labeled Years 4 and Beyond adjusts the child support payment upon the termination of durational maintenance payments. That portion of the hybrid maintenance that is non-durational is continued to be deducted. See, Frei v. Pearson, 244 AD2d 454; Polychronopoulos v. Polychronopoulos, 226 AD2d 354.

Accordingly, for the periods of years 1 through 3, his child support obligation shall be $504.80 per week. In years 4 and beyond, after the first branch of maintenance terminates, it shall be $584.13 per week. These figures for child support, in the face of insufficient evidence to determine defendant's gross income, are also coincidentally consistent upon the "needs and standard of living" of the children (Domestic Relations Law §240 {1-b][k]; Kay v. Kay, 37 NY2d 632, 636; Acosta v. Acosta, 301 AD2d 467, 468; Mayer v. Mayer, 291 AD2d 384.

These figures do not reflect appropriate deductions for FICA and local taxes, and if the parties cannot stipulate to these deductions, which are not part of this record, they are to contact this Court's chambers to schedule record articulation of appropriate deductions and appropriate calculation, to facilitate Appellate review.

Retroactivity in Child Support

The child support shall be retroactive to the date of the service of the pleadings (February 1, 2002). See, Harris-Logan v. Logan, 228 AD2d 557; McNally v. McNally, 251 AD2d 302; Domestic Relations Law §236(B)(6),(7). The plaintiff is entitled to a credit for any amount of child support paid since that date. See, Domestic Relations Law §236(B)(7)(a); Burns v. Burns, 84 NY2d 369, 377; Harrison v. Harrison, 255 AD2d 490.

In this instance, the defendant has been paying child support and mortgage payments [*21]pursuant to a pendente lite order of support. See, also Stone v. Stone, 152 AD2d 560; Petek v. Petek, 239 AD2d 327. If the parties cannot stipulate to appropriate credits for computation of arrears, they are to contact chambers to facilitate record articulation of computation of arrears for Appellate review.

HEALTH INSURANCE

In light of the financial circumstances of the parties as detailed herein, the plaintiff shall secure and maintain major medical and dental insurance for the benefit of the infant issues. See, Domestic Relations Law §236[B][8]; Erdheim v. Erdheim, 101 AD2d 803; Peters v. Peters, 100 AD2d 900. He shall be responsible for 89% of any unreimbursed deductible.

LIFE INSURANCE

The defendant shall also obtain and maintain a term life insurance policy in the amount of $1,000,000, naming plaintiff as irrevocable sole beneficiary to secure payment of child support and maintenance in the event of defendant's death (Domestic Relations Law §236[B][8]; Delaney v. Delaney, 114 AD2d 312).

COLLEGE EXPENSES

Domestic Relations Law §240 [1-b][c][7] confers discretion to the Court to direct contribution for a child's college expenses. See, Otero v. Otero, 222 AD2d 328; Cohen v. Cohen, 203 AD2d 411. In determining whether to award educational expenses, the Court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children and the requirements of justice. See, Cassano v. Cassano, 111 AD2d 208. This record was devoid of any such showing by either of the parties, and there is no basis for my review or determination of this issue.

LEGAL FEES

The parties' submission of legal fees will be decided upon separate submission, on consent, to be determined in a written decision by the Court.

SUBMISSION OF ORDER

Both parties are directed to submit Findings of Fact and Conclusions of Law, or any counter-submission, within thirty days of the date of this decision. See, Uniform Rules for Trial Courts, §202.48(a).

Dated: Mineola, New York

June 7, 2006

E N T E R :

[*22]

ROBERT A. ROSS

J. S.C.