C.H. v S.H.

[*1] C.H. v S.H. 2012 NY Slip Op 50131(U) Decided on January 24, 2012 Supreme Court, Schenectady County Versaci, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 January 24, 2012
Supreme Court, Schenectady County

C.H., Plaintiff,

against

S.H., Defendant.



MAT2010-0459



Attorney for the Plaintiff:

Bruce S. Trachtenberg, Esq.

Law Offices of Bruce S. Trachtenberg

2350 Barcelona Road

Niskayuna, New York 12309-5305

Attorney for the Defendant:

Dean Riggi, Esq.

Law Office of Dean Riggi

101 Mohawk Avenue

Scotia, New York 12302

Vincent W. Versaci, J.

A non-jury trial in this contested divorce action took place on August 18, 2011 and continued on August 19, 2011. The Court heard testimony from the parties and several exhibits were received in evidence. Counsel presented their respective closing arguments on the record, and waived the submission of post-trial memoranda of law. After due deliberation upon the foregoing, the Court hereby makes the following findings of essential facts which are deemed established by the credible evidence and hereby reaches the following conclusions of law.

FINDINGS OF FACT

Jurisdiction

This action for divorce was commenced on or about October 25, 2010. The parties were both eighteen (18) years of age or over when this action was commenced. Both parties resided in New York State on the date of commencement of this action and for a continuous period of one year immediately preceding the commencement of this action. The parties have resided as married persons in New York State, having been married on April 6, 1991. No decree, judgment or order of divorce, annulment or dissolution of marriage has been granted to either party against the other in any Court of competent jurisdiction of this state or any other state, territory or country, and there is no other action pending for divorce by either party against the other in any Court. Neither party is a member of the military service of the United States of America, the State of New York, or any other state.

[*2]Grounds

Plaintiff seeks a divorce from the Defendant pursuant to DRL §170(7), on the ground that the relationship between the Plaintiff and the Defendant has broken down irretrievably for a period of at least six (6) months. The Defendant served a Verified Answer to the Plaintiff's Complaint, generally denying the allegations contained therein. At the Preliminary Conference held in this matter on January 27, 2011, the Defendant withdrew his Answer and consented on the record to a divorce being granted to the Plaintiff on the ground set forth in DRL §170(7).

Custody and Visitation

There are three (3) children of the parties' marriage. Prior to and during the pendency of this action, the parties were involved in a custody dispute before the Schenectady County Family Court regarding their three children. On December 14, 2010, a Temporary Order of Custody signed by the Hon. Eli I. Taub, J.H.O. was entered in Family Court, which modified a prior Order of Custody entered on September 1, 2010. The Temporary Order of Custody (Defendant's Exhibit "H"), provided for the joint legal custody of the parties' children, with custodial time being awarded to the Plaintiff on alternate weekends with all three children, and on every Wednesday evening with one child at a time on a rotating basis.

On July 11, 2011, after several days of trial in the Family Court proceeding, the parties reached an agreement resolving the issue of the custody of their children. An Order of Custody and Parenting Time memorializing this agreement was signed by the Hon. Eli I. Taub, J.H.O. on August 2, 2011, and entered on August 4, 2011 (Plaintiff's Exhibit "2"). This Order provides that the parties will share physical and legal custody of the children, and that during the school year, the children will reside with the Defendant. The Plaintiff will have parenting time on alternating weekends from Friday until Sunday (or until Monday if such weekend includes a holiday that falls on a Monday); every Wednesday evening for dinner; and such other times as the Plaintiff and the Defendant or the children may mutually agree. The Order further provides that during the children's summer vacation period, the parties will alternate weekly parenting time with the children.

The parties have agreed that the Family Court Order of Custody and Parenting Time entered on August 4, 2011, shall continue. Based on the above, the Court finds that the continuation of this Custody Order is appropriate, and as a result, the Court will not disturb the parties' stipulation with respect thereto.

Pursuant to Chapter 595 of the Laws of 2008, the Court has searched the required databases and has notified parties and counsel of said results and has considered the results of that search in making this determination.

Child Support

Prior to the trial of this action, the Defendant filed a Motion for Pendente Lite Child Support with this Court on July 13, 2011. By Decision and Order dated August 8, 2011, the Defendant's Motion was denied, without prejudice to his request for child support on a permanent basis, to be decided after the trial and a full determination of all the facts that are pertinent to the issue of child support.[FN1]

Based upon the proof at trial, the Court finds that under the custodial [*3]arrangement as recently agreed to by the parties and incorporated into a Family Court Order, the terms of which are set forth above, the Defendant is the custodial parent having the children the majority of the time. The Plaintiff offered no proof to the contrary, and in fact, although the Plaintiff previously argued that the parties virtually have equal time with the children, she admitted at trial that at the very least, the parties' oldest child resides with the Defendant most of the time.

Thus, the Court disagrees with the Plaintiff's argument that the Third Department's decision in Baraby v. Baraby, 250 AD2d 201, should apply here. In Baraby, the court held that "where the parents' custodial arrangement splits the children's physical custody so that neither can be said to have physical custody of the children for a majority of the time, the parent having the greater pro rata share of the child support obligation, determined after application of . . . the CSSA, should be identified as the noncustodial' parent for the purpose of support. . ." Id. at 204. The undisputed custodial arrangement clearly supports a finding that the Defendant has physical custody of the children for a majority of the time, rendering him the primary custodial parent for purposes of calculating child support. See, Riemersma v. Riemersma, 84 AD3d 1474, 1475-1476, citing, Bast v. Rossoff, 91 NY2d 723, among others.

The Court must next determine the "combined parental income" as that term is defined in DRL §240(1-b)(b)((4), which is the sum of the adjusted gross income of both parents. The adjusted gross income of the Plaintiff who is the non-custodial parent is $50,622.58 per year, calculated as follows:

$54,816.00(gross income as reported on the Plaintiff's 2010 federal income tax return - see Plaintiff's Exhibit "6") - $ 4,193.42($54,816 x .0765 for FICA)

$50,622.58

The adjusted gross income of the Defendant who is the custodial parent is $53,689.64 per

year, calculated as follows:

$50,250.00(gross wages as reported on the Defendant's 2010 federal income tax return - see Defendant's Exhibit "C")

+$12,388.00(parsonage allowance/value of housing as reported on Schedule SE of the Defendant's 2010 federal income tax return)

+$750.00(as reported on Schedule C-EZ of the Defendant's 2010 federal income tax return) - $ 9,698.36($63,388 x .153 for self employment tax)

$53,689.64

Thus, the combined parental income is $104,312.22 ($50,622.58 + $53,689.64).

The applicable child support percentage for three (3) children is 29%. The combined basic child support obligation attributable to both parents is $30,250.54 per year. The Plaintiff's pro rata share of the combined parental income is 49% and the Defendant's pro rata share of the combined parental income is 51%. The non-custodial parent's pro rata share of the combined basic child support obligation is $14,822.76 per year, or $570.11 bi-weekly.

In determining the Defendant's adjusted gross income as set forth above, the [*4]Court at its discretion pursuant to DRL §240(1-b)(b)(5)(iv)(B), attributed or imputed income to the Defendant from the clergy housing allowance provided to him as part of his compensation for employment. This housing allowance was included on the Defendant's 2010 W-2 Statement, and was subject to Social Security and Medicare tax as reflected on the Defendant's 2010 federal income tax return (Defendant's Exhibit "C").

The Defendant's trial testimony revealed that the housing provided to the Defendant as part of his employment is his full-time residence. In addition to the Defendant and the parties' three children, the Defendant's older son from a prior marriage also resides with them. The Defendant does not charge his older son rent to live there. The Defendant does not pay rent to his employer to live there, nor does he pay for any of the utilities, telephone, or internet access at his residence. Clearly, the inclusion of this housing allowance as part of the Defendant's employment confers a personal economic benefit upon the Defendant by saving him the expenses he would necessarily incur if he and his family had to live somewhere else. The Defendant's housing allowance thus constitutes a "perquisite . . . for personal use" and should therefore be imputed as income to the Defendant under DRL §240(1-b)(b)(5)(iv)(B) for child support purposes.

In opposing the imputation of the housing allowance as income, the Defendant relies on the Fourth Department's decision in Massey v. Evans, 68 AD3d 79, wherein the Court noted in pertinent part that "lodging furnished to an employee . . . [is] excluded from income only if . . . the employee is required to accept such lodging on the business premises of his employer as a condition of his employment' (Internal Revenue Code [26 USC] §119[a])." Id., at 84. While there was testimony from the Senior Warden of the Church that the Defendant, as Pastor of the Church, is mandated to live in the Rectory as a condition of his employment, this testimony is belied by the Defendant's employment contract which is noticeably silent as to any such condition (see Plaintiff's Exhibit "7"). The employment contract merely states: "The rectory is to be viewed as the personal residence of the rector and family." (See Section B on the second page of Plaintiff's Exhibit "7"). Nowhere in the contract does it require the Defendant to live in the Rectory, or indicate that if he chose not to live there, he could not be the Pastor. Nor does the Court recall the Defendant himself testifying that he was required to live in the Rectory as a condition of his employment. Accordingly, the Court finds that the income exclusion as noted by the Massey Court does not apply to the instant set of facts.

With respect to any other perquisites the Defendant receives as part of his employment, such as a cellular telephone, travel reimbursements, entertainment expenses and other reimbursable miscellaneous expenses, the proof established that the Church only reimburses the Defendant for business or Church related expenses, and not for any expenses related to his personal use. These benefits therefore, do not fall within the definition of "income" for child support purposes.

Nor will the Court impute income to the Defendant for money, goods, or services provided by relatives and friends, as requested by the Plaintiff, given the lack of proof with regard to the nature and extent of these alleged provisions. Without such proof, the Court is unable to place a monetary value on any such services that may have been or are being provided to the Defendant.

Further, the Court rejects the Plaintiff's argument that she should not have to pay any child support to the Defendant because the Defendant obtained a "no pay" Order at his request from the Family Court after this divorce action was commenced and now is collaterally estopped from requesting child support. The "no pay" Order that Plaintiff refers to, while admittedly was not signed or entered until January 26, 2011, was in fact the result of Court proceedings held in Family Court on October 27, 2010, a mere two (2) days after the date of commencement of this [*5]divorce action (see Plaintiff's Exhibit "1"). It is unclear whether the Defendant even knew about the divorce action on October 27, 2010, since the record before this Court does not indicate the date on which the Defendant was served.

Moreover, at the time the parties were before the Family Court on October 27, 2010, a prior Order of Custody giving the parties joint legal custody and equal time with the children was still in effect. The Temporary Order of Custody modifying the prior Custody Order by giving more time to the Defendant than the Plaintiff, and thus providing the foundation upon which the Defendant could now request child support from the Plaintiff, was not entered until December 14, 2010 (see Defendant's Exhibit "H"). Any request for child support the Defendant made on October 27, 2010 would have, at the very least, been premature, and quite possibly could have been found to be frivolous under the authority of Baraby v. Baraby, supra.

Nowhere in the "no pay" Order does it indicate that the Defendant gave up his right to request child support in the event of a subsequent change in the custodial arrangement. Defendant simply decided that instead of going back to Family Court on the child support issue, he would pursue his request for same in the context of the divorce action, since the Supreme Court undisputedly has concurrent jurisdiction with the Family Court over the issue of child support in a pending divorce action. Thus, since the change in the custodial arrangement did not occur until after the parties were in Family Court on the support issue, and after this divorce action was commenced, the Defendant is not collaterally estopped from requesting child support in this case.

Lastly, the Court rejects the Plaintiff's argument that the Defendant waived his right to request child support because he did not include a request for same in his Verified Answer to the Complaint in this action, for the same reasons that are set forth in this Court's Decision and Order dated August 8, 2011. For the sake of brevity, the Court will not reiterate those reasons herein, but simply incorporates by reference the Court's findings as set forth on pages 3 and 4 of its August 8, 2011 Decision and Order in this matter.

Accordingly, the Court finds that the Defendant is entitled to an award of child support from the Plaintiff based on all of the findings set forth above. The basic child support obligation as calculated above pursuant to the Child Support Standards Act (i.e., $570.11 bi-weekly), presumptively results in the correct amount of child support to be awarded. However, in consideration of the following factors as provided under DRL §240(1-b)(f), the Court finds that this amount is unjust and inappropriate. The Plaintiff testified regarding the numerous expenses she incurs when the children are with her, and even when they are not. For example, the Plaintiff provides virtually all of the transportation for the children. She pays for the food they consume in her household and provides food for the children to take with them when they go back to the Defendant's household. She pays for the children's clothing, shoes, hair appointments, recreational activities, car insurance, counseling expenses, co-pays for doctor's visits and medical bills not covered by insurance (see the Plaintiff's list of expenses and various receipts, collectively received into evidence as Plaintiff's Exhibit "15").

In addition, as referenced above, the permanent Order of Custody and Parenting Time provides that during the children's summer vacation period, the parties will alternate weekly parenting time with the children (see Plaintiff's Exhibit "2"). In consideration of the extended visitation that the Plaintiff will enjoy during the summer months, and the extra expenses incurred by her that substantially reduce the Defendant's expenses as a result thereof, as well as other non-monetary contributions that the Plaintiff makes toward the care and well-being of the children, the Court hereby deviates from the basic child support obligation as calculated under the Child Support Standards Act, and orders the Plaintiff to pay child support to the Defendant in the amount of $400.00 bi-weekly through the Support Collection Unit, which amount the Court finds to be just and appropriate in accordance with DRL §240(1-b)(g).

The Court further orders the Plaintiff to continue to maintain health and dental insurance coverage for the children as is available through her employment, until the emancipation of the [*6]children. The Defendant shall pay to the Plaintiff his pro rata share (51%) of the cost of the health insurance premiums for the children, payable on a bi-weekly basis. The parties shall also pay their pro rata share of the cost of all future reasonable health care expenses of the children not covered by insurance, meaning the Plaintiff shall pay 49% of the uncovered expenses and the Defendant shall pay 51% of the uncovered expenses. Lastly, the Court finds that the Defendant shall be entitled to take all three children as dependency exemptions for purposes of federal and state income taxes. The above child support order shall be retroactive to July 13, 2011, the date on which the Defendant filed his Motion for Pendente Lite Child Support in this action.

Maintenance

The Plaintiff seeks an award of maintenance from the Defendant in an amount equal to any child support award that this Court issues against her which would in essence, cause them to cancel each other out. The Plaintiff argues that she has incurred extensive debt while the Defendant has virtually no living expenses. The Defendant opposes the Plaintiff's request, contending that neither party should pay maintenance to the other.

In its August 8, 2011 Decision and Order, the Court denied the Plaintiff's request for an award of temporary maintenance after calculating the guideline amount to be $0 and finding this presumptive amount to be neither unjust nor inappropriate upon consideration of all of the factors listed under DRL §236 Part B(5-a)(e)(1)(a) - (q). In arriving at the guideline amount of $0, the Court had projected the net annual incomes of the parties to be $54,000 for the Plaintiff and $68,000 for the Defendant. The proof at trial has now revealed that the adjusted gross incomes of the parties are actually much lower and have much less of a disparity. As set forth above in determining the issue of child support, the Court found that the Plaintiff's adjusted gross income is $50,622.58 and the Defendant's adjusted gross income is $53,689.64. Having the correct figures now simply confirms the Court's earlier denial of an award of temporary maintenance in favor of the Plaintiff.

In consideration of all of the factors listed under DRL §236(B)(6)(a) for post-divorce maintenance awards, the Court finds, consistent with its findings with regard to temporary maintenance, that the Plaintiff is not entitled to a post-divorce award of maintenance. The testimony revealed that during the almost fifteen (15) years that the parties resided together as husband and wife, the Plaintiff attended Baylor University and received a Master's Degree in Social Work. She thereafter became gainfully employed and historically shared the household expenses with the Defendant. The Plaintiff continues to be gainfully employed, and requires no further education or training in order to maintain her current employment. The Plaintiff is 47 years of age and is in good health.

Moreover, as mentioned by the Court in its August 8, 2011 Decision and Order, despite the fact that the parties physically separated in January, 2006, the Plaintiff did not seek any maintenance from the Defendant until the filing of her Cross-Motion in this action more than five (5) years post-date of physical separation. Clearly, the Plaintiff possessed sufficient property and income to provide for her reasonable needs during this time, as there is no proof to the contrary. The disparity in the parties' respective incomes is de minimus, and the Plaintiff has demonstrated that she is able to maintain meaningful employment and is self-supporting.

Accordingly, based on the above findings, and in consideration of the equitable distribution of the Defendant's church pension as set forth below, the Court finds that an award of maintenance to the Plaintiff in any amount is unjustified. The Plaintiff's request for an award of post-divorce maintenance from the Defendant is hereby denied.

To the extent the parties had not been previously notified, the Court hereby notifies each party, in accordance with DRL §255, that once the Judgment of Divorce is signed, he or she may or may not be eligible to be covered under the other party's [*7]health insurance plan, depending on the terms of the plan. Each party shall be responsible for his or her own health insurance coverage, and may be entitled to purchase health insurance on his or her own through a COBRA option, if available.

Equitable Distribution

The parties, by and through their respective counsel, stipulated on the record at the commencement of the trial that the only marital property subject to equitable distribution is the Defendant's pension through the Church Pension Fund. The parties further stipulated and agreed that in dividing the Defendant's pension, the Court should apply the formula enunciated by the Court of Appeals in Majauskas v. Majauskas, 61 NY2d 481. The only disputed issue for this Court to decide is the valuation date for the Defendant's pension. The Plaintiff, on the one hand, argues that the valuation date should be October 25, 2010, the date of the commencement of the instant action. The Defendant, on the other hand, claims that the valuation date should be January 5, 2006, the date on which the parties physically separated, citing Kammerer v. Kammerer, 2001 NY Slip Op 40218U, as the authority for this proposition.

DRL §236(B)(1)(c) provides in pertinent part as follows:

c. The term "marital property" shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, . . .

In interpreting this statutory provision and applying it to cases where the valuation date of a marital asset is at issue, courts of this State have widely recognized the intent of the Legislature to give courts "great discretion in the construction and application of the Equitable Distribution Law" and "significant flexibility in fashioning the appropriate remedy of equitable distribution of marital property." Kammerer v. Kammerer, supra; Anglin v. Anglin, 80 NY2d 553, 558. See also, Thomas v. Thomas, 221 AD2d 621, 622 ("It is well settled that the trial courts possess the discretion to select valuation dates for the parties' marital assets which are appropriate and fair under the particular . . . circumstances'" [internal citations omitted]).

Notwithstanding the broad discretion of the courts conferred by the Legislature, the courts have generally followed the plain meaning of the express language of DRL §236(B)(1)(c) in determining the valuation date of a marital asset. For example, in Kammerer v. Kammerer, supra, the Queens County Supreme Court determined the valuation date of the husband's pension to be the date that the parties entered into a separation agreement and not the subsequent date of commencement of the divorce action, despite the fact that the agreement was silent as to the distribution of the pension. In Anglin v. Anglin, supra, the Court of Appeals held that the valuation date of the marital property was the date of commencement of the divorce action and not the date of commencement of an earlier action for separation. In McMahon v. McMahon, 187 Misc 2d 364, 366, the New York County Supreme Court applied the "bright line cut off date" provided by the statute to determine whether the assets were marital or separate.

This Court has found no decisional law supporting the Defendant's proposition that the date of the parties' mere physical separation, without the execution of a separation agreement or the commencement of a divorce action, is the proper valuation date. Like the McMahon Court, this Court will apply the "bright line cut off date" as expressly defined in DRL §236(B)(1)(c), and hereby rejects the Defendant's position.

The Court's analysis of this issue, however, does not end here. The evidentiary proof at trial revealed that the Plaintiff commenced a prior action for divorce on the alleged ground of the cruel and inhuman treatment of the Plaintiff by the Defendant. By a Judgment of Dismissal signed on December 26, 2006, this prior action for divorce was dismissed on the Defendant's Motion during trial at the close of the Plaintiff's [*8]evidence (see Defendant's Exhibit "K"). Thus, the question now becomes whether the valuation date of the Defendant's pension should be the date of the commencement of the instant action, or the date of the commencement of the prior divorce action.

Many courts across this State have been faced with this same question, albeit under a different set of unique facts in each case. After fully reviewing these cases, this Court agrees with the Kammerer Court that there is a "seemingly irreconcilable body of case law on both sides of this issue . . . [rendering] this an area of the law that is by no means settled." See, Kammerer v. Kammerer, supra, at Footnote 1, for a synopsis of the conflicting case law.

While cognizant of the incompatible decisions rendered by the Appellate Divisions of this State, with some even being from the same Department, this Court has found a line of cases from the Third Department that have addressed this exact issue and consistently held that the commencement date of the subsequent pending action is the proper valuation date. See, McAteer v. McAteer, 294 AD2d 783, 785, wherein the Third Department held that "the economic partnership of a marriage will not end with the commencement of an unsuccessful matrimonial action and that it is the date of commencement of the current successful action that controls". See also, O'Connell v. O'Connell, 290 AD2d 774, 775 ("In our view, the term matrimonial action' in Domestic Relations Law §236(B)(1)(c) does not include an action which, by virtue of a dismissal or discontinuance, neither terminates the marriage nor results in the equitable distribution of the parties' property . . . Thus, Supreme Court correctly utilized the date of the commencement of the within action for equitable distribution . . . as the appropriate cutoff date"); Ward v. Ward, 94 AD2d 908, 909 ("Respondent's argument that the court should have used the date of the commencement of the initial divorce action for purposes of valuing the marital residence is without merit. The first action was discontinued upon an order to which respondent had no opposition and it thus evaporated as if it never existed. The court properly used the date upon which the second action was commenced as the valuation date.")

Thus, while acknowledging the divergent case law from other Departments finding that the valuation date should be the commencement date of the prior action where the parties had not subsequently "reconciled or continued to receive the benefits of the marital relationship" (see, Kammerer v. Kammerer, supra, at Footnote 1 and the cases cited therein), this Court is constrained to follow the decisional law of the Third Department, the Department within which this Court sits.

In addition to the case law analysis discussed above, the Court has also considered all of the factors listed under DRL §236(B)(5)(d) in determining the equitable distribution of marital property, as well as the Court's findings with respect to the issues of child support, maintenance and counsel fees as articulated herein. In exercising the broad discretion afforded this Court in determining the valuation dates for the parties' marital assets, this Court has taken all of the foregoing into consideration and finds that the selection of the date of commencement of the instant action and not that of the prior dismissed action is the proper valuation date for the Defendant's pension, and is appropriate and fair under the particular facts and circumstances of this case and of the respective parties.

In accordance with the Majauskas formula, which as noted earlier the parties stipulated to apply to the Defendant's pension, the Defendant is hereby directed, upon his retirement, to pay to the Plaintiff one half of a percentage of the amount of the pension benefit payable to the Defendant, less taxes. That percentage will be determined by dividing the number of months of credits that the Defendant earned from June, 1997 up to October 25, 2010, which number is 160 [*9](the numerator),[FN2] by the total number of months of credits that the Defendant will have earned toward his pension as of the date of his retirement (the denominator).

To the extent that there is a dispute as to whether the Defendant's parish housing allowance should be considered as "compensation" and factored into the Defendant's retirement benefit and in turn, the Plaintiff's Majauskas share thereof, the Court defers to the decision of the Church Pension Fund in this regard. The Court will note that it appears from a review of the Church Pension Fund Statement for the Defendant that the housing allowance and utilities are included as part of the Defendant's compensation and thus factored into his estimated retirement benefit (see Defendant's Exhibit "F"). Accordingly, whatever the Church Pension Fund calculates the Defendant's retirement benefit to be, the Plaintiff is entitled to her Majauskas share thereof.

With regard to the outstanding debts that were incurred by the parties during the course of their marriage, the Court finds that the Plaintiff shall be solely responsible for the student loans that were incurred by the Plaintiff in pursuit of her Master's Degree. Plaintiff shall hold the Defendant harmless and shall indemnify him from any claims that may result from the non-payment of these student loans, despite the Defendant having co-signed these loans.

The Court further finds that the Defendant shall be solely responsible for the credit card debt that he listed in his personal Chapter 13 bankruptcy petition (see Defendant's Exhibit "B"). Defendant shall hold the Plaintiff harmless and shall indemnify her from any claims that may result from the non-payment of this debt under his bankruptcy plan. Without more than the Defendant's self-serving testimony that this credit card debt is the result of joint marital expenditures, the proof is insufficient to allow the Court to determine if and how to equitably divide this debt between the parties. The Defendant assumed responsibility for this debt by including it in his bankruptcy, and is presumably making payments on a reduced balance pursuant to the bankruptcy plan.

Based on the foregoing, the Court finds that the above allocation of the marital debt is fair and equitable under the circumstances of this case and of the respective parties.

Counsel Fees

The Plaintiff requests that the Defendant be ordered to pay or substantially contribute to her counsel fees incurred not only with respect to the instant divorce action, but also with respect to the prior divorce action that was dismissed for lack of grounds, as well as the Family Court custody proceedings. The Plaintiff estimates that her counsel fees in this action will exceed $15,000, adding to the roughly $10,000 incurred in the Family Court proceedings (see Plaintiff's Exhibits "4" and "16").

In its August 8, 2011 Decision and Order, this Court denied the Plaintiff's request for an award of interim counsel and expert witness fees, "without prejudice to the Plaintiff's right to reapply at the conclusion of this action when the Court can better assess the parties' respective financial circumstances and the value of counsel's services. Perless v. Perless, 33 AD2d 1013." (See page 12 of this Court's August 8, 2011 Decision and Order). Having heard all of the proof at trial, the Court is now in a position to determine the appropriateness and necessity of an award of counsel fees to the Plaintiff.

In determining the appropriateness and necessity of fees, DRL §237(d) provides that "the court shall consider:

1.The nature of the marital property involved;

2.The difficulties involved, if any, in identifying and evaluating the marital [*10]property;

3.The services rendered and an estimate of the time involved; and

4.The applicant's financial status."

The only marital property involved in this action was the Defendant's church pension, which was easily identified and did not need to be evaluated. There was no need for any expert testimony with regard to the pension. The parties stipulated at the commencement of the trial as to how it would be divided. The only disputed issue was the selection of the valuation date, which was purely an issue of law and was submitted to the Court for determination. Neither counsel briefed this issue to any great degree, leaving the Court to conduct its own research as discussed above at length.

Furthermore, as also discussed at length above, the parties' adjusted gross incomes are relatively similar. The Court does not find that either party engaged in any obstructionist activity to delay or prolong this litigation. The issues in this action were not complex, and although the amount of time spent may have been reasonable and necessary, the results achieved were not entirely favorable to the Plaintiff.

When deciding the issue of counsel fees, "[a] court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions." See, Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, DRL §237, at 39, citing, Johnson v. Chapin, 12 NY3d 461; Decabrera v. Cabrera-Rosete, 70 NY2d 879. "Where the parties' financial circumstances at the end of the case are similar, counsel fees may be denied." Id., citing, Chase v. Chase, 208 AD2d 883.

Taking all of the foregoing into consideration, and the particular facts and circumstances of this case and of the respective parties, the Court, in its sound discretion, finds that a fair and equitable allocation of the burden of paying counsel fees as between the parties is for the parties to each be responsible for their own respective counsel fees. Accordingly, the Plaintiff's request for an award of counsel fees is hereby denied.

CONCLUSIONS OF LAW

Residency as required by DRL §230 has been satisfied.

The requirements of DRL §255 have been satisfied.

The requirements of DRL §240(1)(a), including the Records Checking Requirements contained in DRL §240(1)(a-1) have been satisfied.

The requirements of DRL §236(B)(2)(b) have been satisfied.

All economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been either determined herein by the Court or duly stipulated to by the parties, and will be incorporated into the Judgment of Divorce.

Accordingly, the Plaintiff is entitled to a Judgment of Divorce on the ground of DRL §170(7), and granting the incidental relief herein awarded.

Plaintiff is hereby directed to submit a proposed Judgment of Divorce, and a proposed Qualified Domestic Relations Order with respect to the Defendant's pension, on notice to the Defendant in accordance herewith.

The parties' remaining arguments, to the extent not specifically addressed herein, have been considered and found to be unavailing.

All other requests for relief not specifically granted herein, are hereby denied.

The foregoing shall constitute the Decision and Order of this Court.

Signed at Schenectady, New York, this 24th day of January, 2012. [*11]

____________________________________

HON. VINCENT W. VERSACI

Acting Supreme Court Justice

ENTER: Footnotes

Footnote 1:As stated by the Court in its August 8, 2011 Decision and Order, at the time that the Defendant's Pendente Lite Motion was heard and decided, the Court was unable to determine the true custodial arrangement and the amount of time each parent actually spends with the children. The Court was also unable to determine the Defendant's actual income for purposes of computing child support and whether to impute additional income to the Defendant from resources other than his salary.

Footnote 2:The Defendant testified that he has served as a Church Pastor since June, 1997, and first joined the Church Pension Fund on June 21, 1997. The parties were married prior thereto on April 6, 1991. Thus, the latter date is used in calculating the numerator, since all of the months of service credits up to the date of commencement of this action were earned during the marriage.