R.S. v B.L.
Annotate this CaseDecided on January 26, 2015
Supreme Court, New York County
R.S., Plaintiff
against
B.L., Defendant.
350001/12
Plaintiff's counsel: Michele A. Katz, Robert Stephan Cohen, New York, New York
Defendant's counsel: Larry M. Carlin, Raoul Felder, New York, New York
Ellen Gesmer, J.
The court held a 21-day trial of the financial aspects of this divorce case. Each party testified. In addition, plaintiff R.S. (Husband) presented the testimony of vocational expert Lee Miller, and Christopher Carey, the General Manager of the H Club. Defendant B.L. (Wife) presented the testimony of her sister, B.D.; Anne Marie Broughton, who categorized the Wife's expenses; Richard Adelman, a labor arbitrator; Kevin Starke, the Wife's friend and real estate broker; and her psychiatrist, Dr. Cerri Hadda.
The essential questions in this case are: 1) Is the Wife able to work, or is she precluded from doing so by her alleged mental health issues? 2) How should the parties' assets be divided? 3) How much maintenance should be ordered and for how long?
FACTS
Credibility
The Wife was not credible. She was repeatedly evasive and refused to answer simple, clear questions. Throughout the trial, her behavior was inappropriate, aggressive, rude and confrontational. In addition, her testimony was repeatedly inherently incredible, internally inconsistent, or just plain false; examples of this include, but are not limited to the following:
Her request for spousal maintenance of $73,333 per month, plus child support, was based on totally fictitious and inflated numbers.
The Wife described herself on her Net Worth Statement as a homemaker while describing herself on the "Linked In" professional network as a "Labor and Employment Arbitrator and Mediator, Human Resources Attorney and Consultant."
She lied about whether she had had conversations with her witness, Kevin Starke;
She lied about closing the parties' joint safe deposit box;
She lied on her Net Worth Statement, vastly inflating certain items, including several categories of expenses, the family's monthly spending and the cost of vacations, by substantial percentages over the amounts testified to by her own expert, and then lying to justify her exaggeration of the marital standard of living;
Her claim that her Husband wrote most of her 90 page arbitration decision in exchange for her doing household chores is patently unbelievable;
She testified that she submitted all insurance claims in a timely manner, as required by this court's order dated September 6, 2012, and then acknowledged that she had not in fact done so;
In her testimony, she understated the amount of attorneys' fees that she had charged on the family credit cards by more than 80%;
She claimed not to remember that she had asked her Husband to pay her dues to the New York City Bar Association less than one week before her testimony;
She falsely stated that, while in Paris in December 2012, she did not have access to funds through the Citibank debit card, even though the debit card records show that she used it during that very time; and
She falsely stated that she told her Husband about her December 2012 hospitalization within eight days after she was released.
Lee Miller was qualified as an expert, and his testimony was credible. Mr. Adelman, who was apparently called to rebut Mr. Miller's testimony, was reasonably credible, but his testimony did not at all diminish the credibility of Mr. Miller's testimony or the usefulness of his expert opinions, since Mr. Adelman was testifying only as a fact witness.
Ms. Broughton was credible, but her testimony was entirely unnecessary since, as she testified, the arithmetic tasks for which she was paid $42,397 was something "any high school kid could have done." Moreover, her analysis that less than 10% of the parties' living expenses should be attributed to the Husband render her entire analysis useless.
Dr. Hadda was not credible. Her testimony was clearly biased and often internally inconsistent. Although a fact witness, she was paid $7,400 for her testimony. Her testimony about the Wife's hospitalization in December 2012 contradicted the medical records that she signed during the same period. She testified that, on the evening of December 10, 2012, she told Dr. Kuittinen, who had just admitted the Wife involuntarily, that she did not believe that the Wife met the criteria for an involuntary admission. Nevertheless, at or about 2:00 p.m., on December 11, 2010, she went to Lenox Hill Hospital, and she swore to a certification that she had examined the Wife prior to admission and confirmed that she needed involuntary care and treatment.[FN1] She later testified, as to her certification that:
she was not swearing to the truth of the statement, but rather was stating that it was "in general" true;
at the time she signed it, she had not fully examined the Wife;
she signed the statement because a nurse told her to do so, and because, if she had not signed it, she "could have been called by a Mental Hygiene Legal Service lawyer I might have been cited. There could have been consequences that quite frankly I felt were more serious than my signing;"
she did not believe that the statement she certified was true.
This sequence of events alone would have been sufficient for the court to find that Dr. Hadda was not credible. However, she further undermined her credibility by acknowledging that she had submitted sworn statements to this court for which she had no adequate basis. For example, in April 2013, she submitted an affidavit to the court stating that the Wife would suffer "devastating consequences," including heart attack and stroke, if the case were not adjourned, even though she never consulted with the Wife's internist, reviewed no medical records concerning the Wife's cardiac condition, and did not even know whether the Wife had a cardiologist. Consequently, the court can give little credence to Dr. Hadda's testimony.
The Wife's sister, B.D., was not credible. She claimed that she had a vivid memory of the events of the week in July 2009 when her sister was hospitalized, but her "vivid" memory was patently untrue in many respects. In particular, although she testified that she was with her sister from Monday to Friday that week, she was actually only with her from Tuesday to Thursday; although she testified that she picked up her sister in Times Square, she actually first saw her sister in Atlantic Beach after the Husband had driven her there; and although she testified that the Husband was too busy to attend to his Wife, he actually spent much of that week with her.
The testimony of Mr. Carey was of little moment, since he only testified to establish an evidentiary foundation for the Wife's application to the H Club.[FN2]
Mr. Starke was not credible, nor was his testimony probative. While he first claimed to have remembered incidents specifically, he became vague on cross examination, rendering his earlier certainty questionable.
Jurisdictional Facts
The parties were both over 18 years of age when this action commenced. The parties reside in New York State, and the Husband resided in New York State for a period in excess of two years before commencement. The parties were married in a religious ceremony on June 21, 1987. 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. There are two children of the marriage, born in February 1994, and September 1996. The marriage between the parties had broken down irretrievably at least six months prior to the commencement of the divorce action.
Procedural History
The Husband commenced this action on January 4, 2012.
At the preliminary conference on March 15, 2012, the parties stipulated that each would be responsible for his or her own expert fees.
In this action, the Wife sought sole custody of the parties' then minor son (he turned 18 in September 2014). On April 12, 2012, the Wife swore to a Net Worth Statement in which she indicated that her only health conditions were recurring breast cancer and ankle injuries. Later that month, she submitted an affidavit from her internist, who had treated her for the previous ten years, stating that she had "never evidenced any symptoms of mental illness." The parties entered into a Parenting Agreement on July 27, 2012 (the Parenting Agreement). Among other things, it required the Wife to give the Husband notice of any hospitalizations.
The Wife repeatedly violated this court's orders, resulting in the parties incurring additional and unnecessary expenditures for their attorneys' time and court conferences.
On September 6, 2012, the parties entered into a stipulation, which was so-ordered by the court, and which provided, inter alia, "Counsel shall provide the court with names of the following appraisers/ experts no later than October 1, 2012, and if not provided, appraisal/expert is waived: (a) (e) Mental Health Evaluator." On October 12, 2012, the parties' counsel reported jointly to the court:
[P]ursuant to the So-Ordered Stipulation dated September 6, 2012, we have agreed to the appointment of
1.Miller Samuels to appraise the parties' marital residence . . . .
2.Standard Valuation Services . . . to appraise the parties' Atlantic Beach home . . . .
3.[the Husband] has designated Lee Miller as his vocational expert.
4.[the Wife] has not designated a mental health expert.
On October 25, 2012, the Wife, through her counsel, requested and received a stay of discovery so that the parties could focus on discussing settlement. The court set an expedited schedule for the exchange of documents necessary for a settlement, and directed that, if settlement negotiations failed, the parties were to resume discovery, and then the final pretrial conference would occur on February 21, 2013, and the case would be tried on March 4, 5, 6, 11, 18, 19 and 20, 2013. The Wife did not respond to the settlement proposal, and refused to engage in discovery. The Wife then repeatedly requested adjournments of the pretrial conference and the trial, which the court denied, and set a final date for document production on January 23, 2013.
The Wife told the Husband that she would not discuss settlement because she had "a great story to tell" which she was determined to "tell to the world."
On February 18, 2013, three days before the pre-trial conference which had been scheduled almost four months earlier, the Wife retained her seventh counsel. At the pre-trial conference, the Wife requested an adjournment of the pre-trial conference and the trial. The Wife stated that she did not then have counsel, even though, in fact, she had signed a retainer agreement which was effective on February 18, 2013. The court extended the Wife's time to serve her pre-trial documents until February 26, 2013, but declined to adjourn the trial. The Wife did not file her pre-trial documents but instead filed a motion for an adjournment, supported by an affidavit from Dr. Hadda stating that the Wife would suffer "devastating consequences" if the trial were not adjourned. The court adjourned the trial for two weeks, and extended the Wife's time to serve and file her pre-trial papers to 5:00 p.m. on March 13, 2013. On March 13, 2013, at 11:26 p.m., she served a witness list containing 44 names as well as her Statement of Proposed Disposition. The witness list included many people whose testimony could not possibly be relevant. It included seven expert witnesses, some unnamed, who had not been named by October 1, 2012, as required by the September 6, 2012 stipulation; 12 friends of the Wife; and ten partners and administrators at the Husband's law firm. The Wife's counsel later [*2]acknowledged to the court that he had not even spoken with many of the people on the list. At the court conference on March 15, 2013, the parties stipulated to the value of the Husband's interest in his law firm. On the same day, I admonished the Wife and her counsel about not tendering irrelevant witnesses, and in particular, urged that she not lightly call the parties' then 19 year old son as a witness. I further issued an order precluding her from introducing any expert testimony at trial, other than that listed in the October 12, 2012 stipulation.
I began the trial on March 18, 2013. The Wife submitted her first exhibit list on March 29, 2013.
The Husband testified on direct examination for one and a half days, and was cross-examined for seven days. The court repeatedly admonished the Wife's counsel that his cross-examination of the Husband was repetitive and did not appear to be calculated to elicit relevant information.
On March 29, 2013, the Wife moved by order to show cause to vacate the March 15, 2013 order of preclusion (on Motion Sequence 3) and to permit her to present the testimony of Dr. Kaminski, a psychiatrist, and an unnamed certified public accountant. In her papers, she stated that Dr. Kaminski would testify that she is "seriously traumatized, very fragile" and "100% disabled." By order dated April 16, 2013, the court held that the Wife had waived her right to submit expert testimony. I also noted that she was judicially estopped from introducing Dr. Kaminski's testimony which was diametrically opposed to the position she had taken earlier in the case, when she was seeking sole custody, that she is a "strong person" who "has never evidenced any symptoms of mental illness."
On April 10 and 11, 2013, the Wife served subpoenas on the Husband and on the Husband's law firm seeking 129 categories of documents. After argument on April 15 on the motions to quash made by the Husband and his firm, the court granted the motions in their entirety, and reserved for trial the Husband's applications for sanctions.
On April 19, 2013, in a conference call with the court, the Wife's counsel again requested an adjournment of the trial, then scheduled to continue on April 22, claiming that the Wife had various medical conditions which required her to have two weeks of rest, and that continuation of the trial could cause her to have a heart attack and stroke. Counsel did not inform the court that the Wife was intending to attend a Knicks game the next day, and to drive to Philadelphia the following weekend. Accordingly, the court cancelled trial on April 22, and stated that trial would continue on April 23 at 2:15 p.m. On April 24, her counsel again requested an adjournment because the Wife was not well enough to come to court. I noted that, on the previous day, the Wife had looked well, had moved around the courtroom, did not show any signs of discomfort, and had seemed alert and attentive throughout the afternoon. I denied the application for an adjournment. The Wife appeared, as scheduled, without incident. On April 26, 2013, the Wife proffered a new witness list, including seven entirely new names.
In its decision dated June 25, 2013, the court found that the Wife repeatedly violated the access order for the summer of 2012, resulting in numerous telephone and in-person conferences [*3]with the court. She repeatedly violated every aspect of the parties' Parenting Agreement.
On April 30, 2013, the court admitted into evidence at the Wife's request records of five hospitalizations designated Exhibits PP to UU, relying on the representation of the Wife's counsel that he had subpoenaed certified copies of the hospital records; that Exhibits PP to UU were complete and accurate copies of the hospital records that he had subpoenaed; that the electronic copies of Exhibits PP to UU previously given to counsel (the Electronic Copies) were complete and accurate copies of the hospital records; and that, when the certified copies of the hospital records were received pursuant to subpoena, they would be substituted for Exhibits PP to UU. On or about May 27, 2013, the Husband's counsel advised the court that the Electronic Copies differed in many respects from the paper copies of the Certified Records she had been given on or about May 9, 2013. On May 28, 2018, the Court excluded these records from evidence, "[b]ased on the representations made by the Husband's counsel as to the discrepancies between the Electronic Copies and the Certified Records, and the inability of the Wife's counsel to state with certainty that the Electronic Copies were identical to the Certified Records. In Motion Sequence 6, the Wife moved to reargue the May 28 decision. On July 15, 2013, the court granted the motion, but reserved the Husband's right to make an application for attorneys' fees for the time spent as a result of the inaccurate representation made by the Wife's counsel, and further stated that the Husband's counsel would be able to explore on cross-examination whether any of the omissions were intentional.
On July 12, 2013, the Wife submitted a new witness list, including three new witnesses. On July 24, the court permitted the Wife to put on the testimony of three individuals not on the April 16 list: Ms. Feder, Keith Starke and Richard Adelman. Ms. Feder then declined to testify.
The Wife ultimately testified on direct examination for all or part of five days. The questioning was often leading, repetitive and/or irrelevant. Further delay was caused by her repeated refusal to answer only the questions asked, not to volunteer information, and not to participate in legal arguments by counsel.
On August 21, the Wife again asked to enlarge her witness list to add a new expert to critique Mr. Miller's vocational report, and the court denied the application.
Background
The parties married on June 21, 1987. They have two children. At the time of trial, the older son was 19 and a sophomore at an Ivy League University, and the younger son was 17 and a junior in a private high school. The younger son is now over 18 and is no longer a minor.
In 1992, the parties purchased a cooperative apartment on the Upper West Side in Manhattan (the Marital Apartment). They renovated it in 2006. The same year, they bought a house in Atlantic Beach, New York (the House) for $1,400,000 without a mortgage. It has a stipulated value of $1,225,000.
The Husband's Career
The Husband, age 55, is a graduate of an Ivy League college (BA '80) and law school (JD '83). He joined the law firm ABC in 1983, became a partner on January 1, 1991 (three years before the elder son was born and five and one-half years before the younger one was born), and has spent his entire career at ABC. The Husband is also an adjunct professor at a law school in New York City.
At the time of the marriage, the Husband was earning approximately $70,000 and owned a one bedroom apartment.
The Husband earned $2,406,241 in 2011, but his income declined in 2012 to $2,087,869. Of his earnings, $1,100,000 represents his reasonable compensation, and the balance is attributable to his partnership interest. The Wife had no significant role in the Husband's career at ABC. ABC has a mandatory retirement policy at age 68.
The Husband's career did not prevent him from regularly attending his sons' school and sporting events and from regularly attending their parent-teacher conferences.
The Wife's Career
The Wife, age 56, is a graduate of the same Ivy League college as the Husband (BS '80, MS '81) and a different Ivy League law school (JD '84), receiving academic awards from each. She practiced employment and labor law at two major New York City law firms, the first from 1984 to 1987 and the second from 1987 to 1992. She served as Employment Counsel and later Vice President, Senior Employment Counsel and companywide human resources legal officer at XYZ corporation from 1992 to 1999.
At the time of the marriage, she was earning about $70,000 per year and owned a one bedroom apartment.
Upon leaving XYZ, the Wife stayed current in her field, and periodically took on consulting work related to her work as a labor lawyer and human resources executive. She renewed her license to practice law every two years, never registered as retired,' and maintained her malpractice insurance.
In 2009, the Wife decided to return to the workforce as an arbitrator and mediator and applied to and was accepted by the "very prestigious" S Institute on Conflict Resolution. In support of her application, she submitted recommendation letters which stated, inter alia, that she "is the kind of person who will accomplish anything she sets her mind to . she displays creative and strategic thinking," "organization skills" and "perseverance," and "is known and respected in the field;" that she is "extremely insightful and possesses excellent analytical and practical skill," has "intelligence" and "legal experience" and "is a respected professional." In [*4]October 2011, the Wife received her "Certificate of Completion" from the S Institute.[FN3] Since then, she has been listed on the S Institute on Conflict Resolution roster of neutrals.
In August 2010, the Wife was appointed as an arbitrator on the United Federation of Teachers and New York City Department of Education 3020(a) Hearing Panel,[FN4] and, in that role, handled two arbitrations. One of her high profile decisions was covered in the New York Times and affirmed by Justice Huff. She spoke on a panel for new arbitrators at the City Bar in June 2011, and was featured in an article on new arbitrators. She has an extensive network of contacts at her alma mater, the S Institute and in the employment and arbitration communities, including her connection with Mr. Adelman. Until on or about December 1, 2011, the Wife was actively engaging in all the activities that a new arbitrator would conduct to market themselves. At some point in 2012, the Wife ceased her efforts to market herself as an arbitrator and did not engage in any other search for employment.
In 2013, the Wife applied to and was accepted as a member of the H Club, describing herself on her application as an "Employment and Labor Attorney, Arbitrator and Mediator." In support, she submitted references that referred to her exemplary legal and community service, her career as an accomplished attorney, her creative and strategic thinking, her organizational and analytical skills and her perseverance. She successfully ran for election in May 2013 to a fourth term on her college's Alumni Association Board of Directors as an "Arbitrator, Mediator and Workplace Investigator and Trainer." The Wife's resume, business cards and email signature block all identify her as an attorney, performing "Employment Compliance Services" and "Workplace, ADR and Compliance Services." On the "Linked In" professional social network, where she claims to have 300 "connections," she identifies herself as a "Labor and Employment Arbitrator and Mediator, Human Resources Attorney and Consultant." The Wife attends continuing legal education programs keeping her current in her areas of expertise. She is an active member of many bar associations and other professional organizations, for which she spends thousands of dollars per year which she deducts as business expenses on her federal tax returns. Every September, she speaks to students at her alma mater concerning careers in the labor and employment law fields. She is also on the Board of Directors of Hillel at her alma mater, where she serves as the Board Development Co-Chair.
The Wife also applied her organizational skills in her management of her sons' lives, including, in particular, helping her son younger son apply to colleges. She avidly pursues many hobbies, including theatre, ballet, literature, art, antiquing and an adult Bat Mitzvah class.
The Wife is capable of working as an arbitrator, mediator and workplace investigator. She is capable of earning $201,600 in her first year working as an arbitrator, mediator and workplace investigator, $252,200 in her second year and $302,400 in her third year and thereafter.[FN5]
The Marital Lifestyle
The parties lived well but not luxuriously during their marriage. They both came from modest backgrounds. They did not spend money on buying the newest and best of everything, but instead saved money so that they would be able to put their two sons through college and graduate school without saddling themselves or their sons with debt. Their practice of saving also allowed them to pay off the mortgages on the Marital Apartment. As a result, at the date of commencement, they owned two homes with no mortgages, and had $4,000,000 in liquid assets.
The parties' average spending on selected items, from 2009 to 2011, was as follows (excluding the last few months of 2011 when the Wife's spending was extraordinarily high, as discussed further below):
Expense ItemMonthly AverageIncurred by
Cash (Ex. 130 at 1)$1,850Wife and Husband
Clothing (Ex. 130 at 2; Ex. 130A)$2,066Wife, Husband, and sons
Food (Ex. 130 at 3)$2473Wife, Husband, and sons
Dry Cleaning (Ex. 130 at 6)$130Wife, Husband, and sons
Jewelry (Ex. 130 at 8)$28Wife
Theater, Ballet, Movies (Ex. 130 at 9)$91Wife and Husband
The court finds that the Wife would require $12,685 per month in after tax income to live in the Marital Apartment and otherwise replicate the marital life style, as follows:[FN6]
Expense Category
Cost
Apartment
Maintenance
$4,676
Con Edison
$532
Telephone/Internet
$97
Fax
$29
Time Warner
$144
Insurance
$485
Holiday Tips
$269
Apartment Total:
$6,232
Automobile
Parking
$464
Insurance
$250
Gas
$119
Automobile Total:
$833 [*5]
Medical/Dental (COBRA Rate)
COBRA
$1,135
Unreimbursed Medical/Dental
$416
Medical/Dental Total
$1,551
Other Expenses
Cell Phone
$140
Cash
$833
Clothing
$516
Food
$618
Beauty Parlor/Hair/Spa
$275
Dry Cleaning
$52
Jewelry
$28
Theater, Ballet, Movies
$46
Vacations
$504
Metrocard
$57
Other Expenses Total
$4,161
Grand Total
$12,685
The Wife's Mental Health
The Wife was hospitalized for eight days in July and August 2009. In October 2010, she stayed home from work for a week, and the Husband accompanied her every morning to an appointment with her psychiatrist. She stopped taking her medication after one week, causing her psychiatrist to refuse to continue to treat her. Soon after, the Wife was back at work, presiding over an arbitration, on which she wrote a 90 page decision the following month.
The Wife was hospitalized four times in 2012: for two days in February, for thirteen days in June and July, for eighteen days in August, and from December 10 at 7:40 p.m. until December 12 at 3:00 a.m. (a hospitalization which her psychiatrist, who certified the need for her admission, testified was unnecessary). During her hospitalization in August 2012, the Wife refused to take medication, causing the hospital to consider forcibly medicating her. The Wife was well enough to use the internet to find an attorney to advocate for her release and to prevent the hospital from forcibly medicating her. She was then released, subject to the condition that she consult a psychiatrist, which led to her seeing Dr. Hadda.
At her first session with Dr. Hadda, on August 20, 2012, the Wife stated that she would not take the medication prescribed to her at the hospital. Throughout their treatment, Dr. Hadda has told the Wife that medication would ameliorate her symptoms and make it easier for her to function on a daily basis. Nonetheless, the Wife has refused and continues to refuse to take that medication or any other psychiatric medication. The Wife also rejected Dr. Hadda's recommendation that she attend psychotherapy more than once per week, stating that she could not do that "because of the legal matters." In fact, she only saw Dr. Hadda consistently once per week through the end of 2012, and has often been late for or missed appointments. Her only [*6]treatment at the time of trial was, at most, weekly 45 minute sessions with Dr. Hadda, which she foregoes when she is too "busy."
When the Wife was hospitalized in December 2012, she left her younger son unattended and did not advise the Husband of her hospitalization, in direct violation of the Parenting Agreement. That, coupled with the joint custody provisions of the Parenting Agreement and the Wife's claim that her mental health precludes her from working, caused the court to appoint a Guardian ad Litem for the younger son. After submission of a report by the Guardian ad Litem, the parties retained Dr. Bernice Schaul to conduct therapy to address the effects of the Wife's Parenting Agreement violations. As a result, the Husband paid $58,058 to the Guardian ad Litem and $3,500 to Dr. Schaul.
The Parties' Separation and Post-Separation Behavior
The parties had a very unhappy marriage. In October 2010, they had a particularly serious argument. On January 13, 2012, the Husband moved out of the Marital Apartment, and, since then, he has resided at a rental apartment on West 67th Street in Manhattan (the Rental Apartment). When the Husband was moving out, the Wife hid his financial papers under the bed and refused to let him take his personal property, including his tallis, his Kiddush cup and his sports memorabilia collection.
On July 27, 2012, the parties entered into a stipulation, which was so-ordered by the court (the Summer Order), setting forth a schedule for sharing time with the younger son and sharing use of the House during summer 2012. The Wife repeatedly violated the Summer Order, resulting in an application by the Husband in spring 2013, which resulted in an order dated June 25, 2013 giving him exclusive access to the House thereafter.
On January 24, 2013 the Wife filed an "Application for Post Office Box" and obtained the keys to Post Office Box 230271 (the Post Office Box). On February 8, 2013, she filed an "Official Mail Forwarding Change of Address Order" which directed that all mail addressed to the Husband at the Rental Apartment be forwarded to the Post Office Box. The Husband did not authorize the opening of the Post Office Box; does not and never did have a key to it; did not authorize the Wife to take any steps with regard to his mail on or about February 8, 2013; did not authorize her to put his name down as a recipient at the Post Office Box; and did not authorize her to have his mail forwarded to the Post Office Box. Her conduct is in apparent violation of 18 U.S.C. §§1001 (statements or entries generally), 1702 (obstruction of correspondence), and 1708 (theft or receipt of stolen mail).
The Wife violated the Parenting Agreement by, inter alia, not giving the Husband notice of her hospitalizations, and not transferring parenting responsibilities to him at the time of her hospitalizations; preventing the younger son from celebrating Passover with the Husband; failing to consult with the Husband about the younger son's academic course schedule and summer activities; and preventing the younger son from spending time with the Husband.
The Wife initially refused to file taxes jointly for tax year 2011, causing the Husband to [*7]incur legal fees of $3,916 in order to secure her cooperation. He did not attempt to secure her cooperation for tax year 2012, resulting in a loss of approximately $20,000.
The Parties' Post-separation Lifestyle
Starting in or about November 2011, the Wife vastly increased her spending over the amounts spent by the family during the marriage. The Wife's high rate of spending continued through the date of trial, including high rates of cash withdrawal, extravagant vacations, increased use of household help, increased expenditures for health clubs, greatly increased allowances for the boys, and increased spending on taxis. Among other things, she transferred $200,000 from the parties' joint account to an account in her sole name in December 2012, and she declined to submit the bills from her psychiatrist for reimbursement. She also refused to submit her medical and dental charges for health insurance reimbursement, causing a loss to the parties of $23,624. The percentage increase in her spending over the marital life style in some categories is shown by the chart below:
Expense Category
2012 Monthly Average
Change from 2009 — 2011
Cash
$3,849
Wife
208% of the cash expenditures by both parties
Clothing
$6,063
Wife and the boys when with her
293% of the clothing expenditures for 4 people
Food
$2,131
Wife and the boys when with her
86% of food expenditures for 4 people
Dry Cleaning
$142
Wife and the boys when with her
100% of dry cleaning for 4 people
Jewelry
$340
Wife
1,214% of earlier spending
Theater, Ballet, Movies
$139
Wife
153% of the parties' joint earlier spending
In August and September 2012, the Wife opened American Express and MasterCard accounts in her own name, without telling the Husband, and while continuing to use the family American Express and MasterCard. She used the new cards in her sole name, inter alia, for the following:
•$35,000 charge to Nina Gross, her fourth attorney;
•$12,683 charge to Parente Beard;
•$3,650 in medical charges for which insurance claim forms were never submitted notwithstanding a September 6, 2012 court order requiring submission of claims within 7 days of payment;
•$2,400 for elective plastic surgery;
•$3,186 for jewelry; and
•$20,499 for clothing charges, during a period of less than three months.
On one occasion, the Wife paid for these accounts with a check on the joint checking account at a time when it had insufficient funds to cover it, causing the check to bounce. The Wife then demanded that the Husband pay the bills, and he insisted that she show him the statements. She refused to give him a copy of the statements, so he did not pay them. At the time of trial, the Wife claimed to owe $47,060 to American Express, and $45,460 to MasterCard. She is incurring late fees and penalties as a result of not paying the amounts due.
Since the date of commencement, the Husband has paid 100% of the younger son's room and board at his university, which is $23,092 per year, or $1,924 per month.
The Parties' Assets
On March 15, 2013, the parties stipulated on the record that the value of the Husband's interest in ABC as of December 31, 2011 was $3,250,000. The stipulated value of the Husband's interest in his firm is the figure agreed to by the parties' experts on February 14, 2013. As further agreed, one component of the calculations used by the parties' experts to determine the value of the Husband's partnership interest is the income he receives from the firm. Of the Husband's total annual income, the parties stipulated that his reasonable compensation, not attributable to his partnership interest, is $1,100,000 per year.
The parties' assets are set out in detail in the spreadsheet attached as Exhibit A, together with their values at the date of commencement and the date of trial. In summary, the parties' assets include liquid assets (checking, savings and brokerage accounts) with a total value of $3,429,611 at the date of commencement, and $1,761,674 at the date of trial; non-liquid non-retirement assets, including the Marital Apartment (valued at $3,000,000), the House (valued at $1,225,000), the Husband's interest in ABC, and personalty (including a 2011 Lexus worth $37,500, silverware, jewelry and art worth $140,000, and Knicks tickets worth $15,865), with a total value of $8,501,552 at the date of commencement, and $7,871,345 at the date of trial; non-annuity retirement assets with a total value of over $1,000,000; and an annuity with a guaranteed payout of $313,844 per year for up to 10 years. In addition, the Wife has separate property consisting of an account at Citibank containing $46,715, 1.410 GE shares valued at $25,944, and 110 Mueller Industries shares valued at $4,350.
The decrease in value of the parties' liquid non-retirement assets by approximately $1,400,000 resulted primarily from: 1) the Wife's excessive spending, discussed above; and 2) the extraordinarily high cost of counsel fees in this action, which, as discussed below, is largely attributable to the Wife's inappropriate and unnecessary litigation behavior. The decrease in value of the non-liquid non-retirement assets results from the fact that the Husband's undistributed earnings of $787,654, at the date of commencement, were distributed to the Husband in 2012 and were spent on by the Wife during her period of increased spending, discussed above, and for the parties' attorneys' fees.
Attorneys' fees
The Wife has spent $850,000 for attorneys' fees and other litigation expenses in this [*8]action.
The Wife hired and fired six law firms, and was represented by a seventh at trial. Each change of counsel resulted in duplication of effort and delays. The Husband repeatedly tried to settle both the custody and financial issues in the case, but the Wife would not discuss settlement. The Wife repeatedly refused to sign a confidentiality agreement concerning ABC. The Wife also refused to have the court appoint a neutral expert to value the Husband's interest in ABC and instead hired her own expert, causing further expense.
The Wife currently seeks the following attorneys' fees:
Payee of fees sought
Period services rendered
Amount sought as reimbursement
Unpaid fees sought
Felder Firm
2/18/13 - 9/30/13
$322,170
$385,740
10/1/13 — 10/23/13
$131,320
Dobrish Michaels Gross, LLP
9/4/12 — 3/13
$35,000
$41,039.89
Advocate & Lichtenstein, LLP
1/17/143 — 2/21/13
$50,000
$48,171.56
Abrams, Fensterman et al
8/15/13 — 2/28/13
$29,932.95
Proskauer, Rose
3/16/13 — 9/17/13
$93,000
$21,572.72
Blank, Rome
1/17/12 — 9/5/12
$49,500
$139,466.48
TOTALS
$142,500.00
$797,243.60
She also seeks payment from the Husband of $108,596 incurred by her for litigation expenses.
ANALYSIS
Equitable Distribution
The premise of the equitable distribution law as it has been written and interpreted by the courts of this state is that marriage is an economic partnership (O'Brien v O'Brien, 66 NY2d 567, 585 [1985]). The success of this partnership depends not only on the contributions of the wage earner spouse but on various contributions made by the non-titled spouse. In Price v Price (69 NY2d 8 [1986]), the Court of Appeals recognized this concept, stating:
The Equitable Distribution Law reflects an awareness that the economic success of the partnership depends not only upon the respective financial contributions of the partners, but also on a wide range of non-remunerated services to the joint enterprise, such as homemaking, raising children, and providing emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home
(Price, supra at 14).
In Conner v Conner (97 AD2d 88 [2nd Dept. 1983]), the Appellate Division in the Second Department stated:
According to the Assembly memorandum in support of the new law [citations omitted]: The basic premise for the marital property and alimony (now maintenance) reforms of this legislation (§236) is that modern marriage should be viewed as a partnership of co-equals. Upon the dissolution of a marriage, there should be an equitable distribution of all family assets accumulated during the marriage and maintenance should rest on the economic basis of reasonable needs and the ability to pay. From this point of view, the contributions of each partner to the marriage should ordinarily be regarded as equal and there should be an equal division of family assets, unless such a division would be inequitable under the circumstances of the particular case.'
(Conner, supra at 96). However, equitable distribution is not necessarily equal distribution (Arvantides v Arvantides, 64 NY2d 1033, 1034 [1985]; Gering v Tavano, 50 AD3d 299, 301 [1st Dept 2008]), and the trial court has broad discretion in determining what distribution is equitable under all of the circumstances, provided it has considered the factors enumerated in DRL §236(5)(d) (Holterman v Holterman, 3 NY3d 1 [2004]).
The court has considered the factors set forth in Domestic Relations Law §236(B)(5)(d) in making its decision as to the equitable distribution of the marital property, as follows.
1)Income and Property: At the time of marriage, each party earned approximately $70,000 per year and owned a one bedroom apartment. The Husband earned $2,406,241 in 2011, which declined to $2,087,869 in 2012, of which $1,100,000 represents reasonable compensation for an attorney who did not have a partnership interest in ABC, and the balance is related to his interest in his law firm, as discussed above. The Wife's earned income as of the date of commencement was $0. The Husband and Wife both had income in the form of interest, dividends and capital gains. The marital estate, as of the date of trial, had a total value in excess of $12,000,000, including liquid and non-liquid assets. In addition, the Wife has separate property consisting of an account at Citibank containing $46,715, 1.410 GE shares valued at $25,944, and 110 Mueller Industries shares valued at $4,350.
2)Duration of the marriage and age and health of the parties: The Husband is 55 years of age, the Wife is 56 years of age, and they were married for 24-1/2 years on the date of commencement. There is no medical evidence to support the Wife's claim in her April 2012 Net Worth Statement that she suffered from ankle injuries. Her early Stage 0 DCIS breast cancer was treated successfully by lumpectomy and radiation. Her claim that she suffers from mental illness is addressed in paragraph 9 below.
3)Need of custodial parent to occupy or own the marital residence: Not applicable.
4)The loss of inheritance and pension rights: Upon entry of the judgment of divorce, each party will lose the right to inherit from the other.
5)The loss of health insurance benefits upon dissolution of the marriage: The Wife is covered by the Husband's health insurance. She will have the right to continue her health insurance benefits for three years following entry of the judgment of divorce, pursuant to [*9]COBRA.
6)An award of maintenance: As set forth below, the court will award maintenance in an amount that will permit the Wife to maintain her pre-separation style of living, taking into account an appropriate income to be imputed to her and the Husband's stipulated reasonable compensation not relatable to his partnership interest ($1,100,000 per year).
7)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 Husband was the primary breadwinner, and also contributed to the marriage generally as an active parent to the parties' children. The Wife contributed to the marriage generally as a parent and homemaker, and contributed only indirectly to the Husband's interest in his law firm.
8)Liquid or non-liquid character of the property: Besides the Husband's interest in his law firm, the parties' largest illiquid asset is their $3,000,000 four bedroom marital apartment that the parties stipulated the Wife would keep.
9)Future financial circumstances of the parties: This is the critical issue in this case. There is no dispute that the Husband will continue to work at his law firm. However, the Wife contends that her mental condition prevents her from maintaining employment. The Husband contends that the Wife is exceptionally well qualified to work as an arbitrator, mediator and workplace investigator, and, that she has not proven that she suffers from any disability which precludes her from working. The court agrees with the Husband for the following reasons.
First, during the custody phase of this action, which resulted in a so-ordered Parenting Agreement that provides that it will be incorporated, but not merge, into the judgment of divorce, the Wife vigorously argued that she was healthy and mentally fit. This precludes her from taking a different position at this later phase of the litigation (see Baje Realty Corp. v Cutler, 32 AD3d 307 [1st Dept 2006]; Jones Lang Wootton USA v. LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168 [1st Dept 1998], lv dismissed 92 NY2d 962 [1998]; Estrellita A. v Jennifer D., 40 Misc 3d 219 [Fam Ct Suffolk Co 2014]).[FN7] Her December 2012 hospitalization provides one example of the contradictions in the Wife's positions. In her brief, the Wife relies on this hospitalization for evidence of her inability to work. Yet her own psychiatrist testified that the hospitalization was unnecessary, and swore that, as of December 11, 2012, the Wife was capable of caring for herself and her son.
Second, whenever there was an activity in which the Wife wanted to engage, whether it was enrolling in the S Institute or joining the H Club, she was always able to take the necessary steps to accomplish her goals, including obtaining laudatory reference letters attesting to her extraordinary professional skills and her ability to achieve anything she puts her mind to.
Third, while the Wife certainly has been encouraged to participate in therapy and to take medication to address her issues, she has refused to take medication, and insisted that she does not need it.
Fourth, the Wife was not precluded by her alleged mental health issues from engaging in extensive volunteer work for her college and law school, and from participating actively in her own representation in this case. In fact, she even admitted in her vocational interview that she was not working for money "because of the divorce litigation." During the trial, she consulted with her counsel, took notes, located exhibits, and suggested questions for witnesses.
Fifth, the court may properly impute income to a party who has been gainfully employed in the past, but fails to show that he or she has made a "serious effort to become gainfully re-employed," (Unger v Unger, 256 AD2d 220 [1st Dept 1998]), and a "good faith effort at seeking re-employment commensurate with... qualifications and experience" (Davis v Davis, 13 AD3d 623, 624 [2d Dept 2004]). Refusing to take medication which a treating physician has advised will alleviate symptoms is not a "serious effort to become gainfully re-employed" or a "good faith effort at seeking re-employment commensurate with... qualifications and experience."
Sixth, the court properly precluded the Wife from introducing expert testimony concerning her medical condition, in light of her failure to disclose any experts at the time agreed on by the parties (Sutaria v Sutaria, 123 AD3d 909 [2d Dept 2014]).
Finally, Mr. Miller testified persuasively that the Wife is able to work.
Accordingly, the court finds that, once the Wife chooses to use the skills she has developed as an arbitrator, mediator and workplace investigator, she is capable of earning $201,600 in her first year, $252,200 in her second year and $302,400 in her third year and thereafter.
10)The difficulty of valuing marital assets: The forensic evaluator valued the Husband's interest in ABC at $3,250,000 at the date of commencement. The Husband argues in his Supplemental Memorandum, relying on Ira S. v Janice S. (4/8/14 NYLJ, http://www.newyorklawjournal.com/ id=1202650165483/Ira-S-v-Janice-S-31150307No.ixzz3O4d4u9HR [Sup Ct NY Co 2014]), that the court should consider the value of his partnership interest as of the date of trial, because of the decrease in its value as a result of the recession and the Wife's spiteful actions. The court rejects this argument for three reasons. First, the Husband asks the court to take judicial notice of various news articles to support his position. The court declines to do so, as news articles are not a proper subject for judicial notice. Second, in Ira S., the husband presented evidence as to the value of his partnership interest at the time of trial; no such evidence was presented in this case. Even with that evidence before it, the court in Ira S. determined that it was appropriate to value the husband's partnership as of the date of commencement, and to consider the effect of the Wife's actions in determining the percentages of the partnership interest to be distributed to each spouse rather than in determining the date of valuation. This court will take the same approach.
11)The tax consequences to each party: None. The court rejects the Wife's argument that the value of the Marital Apartment should be reduced by 10% to account for the possibility that she would have to pay a capital gains tax if she sells it. There is nothing in the record to support her argument, as there was no evidence as to whether or when she plans to sell the Marital Apartment. Accordingly, the court cannot speculate as to what the value of the Marital Apartment will be at that hypothetical time, whether the hypothetical sale price will be lower than the Marital Apartment's current value (thus reducing any capital gains tax owed), or what the capital gains tax rate will be at the time of this hypothetical sale. If the Wife resides in the Marital Apartment for life and bequeaths it to her sons, she will never pay the $300,000 capital gains tax that she seeks to collect from the Husband in this divorce action. Therefore, the court will value the Marital Apartment at the appraised value.
12)The wasteful dissipation of assets: The Wife has dissipated marital assets, by hugely increasing her expenditures after the parties separated, by her dilatory tactics before the trial, and by her delays and frivolous actions during the trial. This conduct vastly increased the cost of the trial and vastly reduced the amount left to be distributed. More specifically, and as set forth in greater detail below, the parties' liquid assets decreased from $3,429,611 at the time of commencement in January 2012, to $1,761,674 on September 30, 2013, the date the trial ended, a decline of $1,667,937 in a period of less than two years. All of this money, plus the Husband's earnings during that period (plus whatever appreciation and interest the parties were able to realize on their savings before they were spent) were spent on the Wife's inflated life style, the Husband's living expenses at the pre-divorce level, and the parties' attorneys' fees and costs, which can be largely attributed to the Wife's frivolous conduct, repeated changing of attorneys, and excessive delays. This contrasts sharply with the parties' conduct prior to the divorce when they not only lived within the Husband's salary but also were able to accumulate substantial savings.
The Wife also wasted marital assets by: (1) failing to cooperate with filing joint tax returns, resulting in a waste of $23,916; (2) failing to submit medical and dental charges for insurance coverage, resulting in a waste of $23,624; and (3) engaging in conduct that led to the appointment of a Guardian ad Litem and therapy, leading to expenditures of $61,558.[FN8]
13)Transfer in contemplation of action: None.
14)Any other factors: The Wife's conduct in forwarding the Husband's mail to a post office box in her sole name without his authorization was in apparent violation of several federal laws. This conduct, undertaken by a lawyer and a member of the Bar, is egregious and shocks the conscience (O'Brien v O'Brien, 66 NY2d 576, 589 [1985][marital fault may be considered as a factor in equitable distribution in "egregious cases which shock the conscience of the court"]; see also Howard S. v Lillian S., 14 NY3d 431 [2010][egregious conduct not limited to extreme violence]; Levi v Levi, 46 AD3d 520 [2d Dept 2007][attempt to bribe judge constituted egregious fault]).
Marital property is defined in Domestic Relations Law Section 236(B)(1)(c) as "all property acquired by either or both spouses during the marriage...." Separate property is defined as "[p]roperty acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse..." (Domestic Relations Law Section 236[B][1][d]). The court has used these definitions and the evidence adduced at trial in identifying and classifying the property of the Husband and Wife.
The parties agree that the Wife has separate property consisting of an account at Citibank containing $46,715, 1.410 GE shares valued at $25,944, and 110 Mueller Industries shares valued at $4,350. The Wife claimed that the artwork in the Marital Apartment was her separate property but she presented no evidence whatsoever to support this, so the court rejects it. Accordingly, the court classifies all of the parties' remaining assets as marital property.
Domestic Relations Law Section 236(B)(4)(b) provides in pertinent part: "...The valuation date or dates may be any time from the date of commencement of the action to the date of trial."
As to the valuation of specific assets, the court in Wegman v Wegman (123 AD2d 220, 234 2d Dept 1986) found that
If an asset increases in value due to market forces or inflation, valuation as of the date of commencement of the action would result in a windfall to the titled spouse and injustice to the other. If the asset greatly decreased in value ... a court which values assets might make a distributive award that is beyond the owner spouse's ability to pay.
(Wegman, supra, at 234 [citations omitted]). Thus, a passive asset is properly valued at the date of trial whereas an active asset may be more appropriately valued at an earlier time. The court noted "[a]n asset such as, for example, a business, might suddenly appreciate in value due solely to the efforts of the owner spouse. If a considerable period of time has elapsed since the date of commencement or the date of separation, the court might be justified in establishing a valuation date earlier than the date of trial" (Id.).
There is no dispute between the parties concerning the value of most of their assets at the commencement of this action. Under the circumstances of this case, the court values all of the parties' liquid assets at the time of trial, because of the extraordinary waste caused by the Wife's conduct, as discussed above. As set forth above, the court will value the Husband's interest in ABC at the date of commencement. However, the court will value at the date of trial the undistributed ABC capital account assets which were worth $787,654 at the date of commencement, which were distributed in 2012 and spent in 2012 with the parties' other liquid assets and consequently worth $0 at the date of trial.
The Husband proposes that the court award the Wife approximately 42% of the remaining assets other than his law practice, or 33% of all remaining assets including his law practice. He proposes that this be accomplished by an 80%-20% split of remaining liquid non-retirement assets, a 90%-10% split of his law practice, a 50%-50% split of illiquid assets, a 50%-50% split of retirement assets, and offsets for (1) waste of marital assets involving unnecessary tax payments, (2) waste of marital assets involving medical insurance claims, and (3) expenses [*10]paid to the Guardian ad Litem necessitated by the Wife's breaches of the Parenting Agreement. This would mean that she would receive a $3,000,000 mortgage-free four bedroom apartment, a $35,000 car, over $400,000 in liquid assets, over $700,000 in retirement assets, 50% ($156,922 per year) of an annuity providing the Husband $313,844 a year for life with a ten year guarantee once the Husband retires, and that she would owe him approximately $725,000, which he proposed that she pay him in June 2016, one year after the younger son graduates from high school, with statutory interest compounded monthly, if not paid when due. He proposes that she could pay him with any combination of (1) current income; (2) retirement assets; and/or (3) proceeds from refinancing or selling the Marital Apartment.
In each of his Statements of Proposed Disposition, the Husband proposed that the Wife receive 20% of the value of his interest in ABC. However, in his trial brief, he proposed that she receive 10% of the value, apparently because her conduct during the trial demonstrated a lack of concern and even recklessness toward his standing in ABC.
The Husband's proposal that the Wife receive 10% of the value of his law practice is based on the Wife's limited indirect contributions to the asset, the inclusion in the valuation of contributions made to retirement funds that he proposes she receive 50% of, the likely decline in value of this asset based on the Husband's sharp decrease in income in the last few years, and the Wife's actions which he argued diminished his standing at ABC. He points to Justice Drager's decision in Ira S. v Janice S., supra, in which she awarded the Wife 17% of the value of the husband's law firm interest. He argues that the Wife's conduct here included:
Designating nine partners and high ranking administrative officers of the firm as witnesses;
Marking as a trial exhibit a list of the compensation awarded to every partner for a twenty year period;
Serving a trial subpoena on the firm calling for production in less than three days of dozens of categories of documents;
Requiring ABC's treasurer to appear in court on standby and treating him in an unprofessional manner; and
Sending a letter to ABC threatening to seek financial penalties if the firm failed to comply with the Wife's demands under ERISA.
Admittedly, it is difficult to measure this against the conduct of Janice S., who was the source of many negative articles about her husband, regularly posted negative information about him to various web sites, and made various complaints against him with various governmental and [*11]professional agencies. However, in that case, there was some proof that the wife had entertained clients a few times a year in their home; in this case, the only evidence that the Wife socialized with the Husband professionally was that she attended two dinners in 25 years.
The Wife proposes that all liquid assets, all retirement assets, the Husband's annuity benefit from ABC, and the value of the Husband's law firm be divided equally. The only cases that the Wife cites to support her argument that she should receive 50% of the value of the Husband's interest in ABC distribution are White v White (204 AD2d 825 [3d Dept 1994]) and Anonymous v Anonymous (289 AD2d 106 [1st Dept 2001]).[FN9] However, more recent cases have awarded the non-titled spouse much smaller percentages (see, e.g., Charap v Willett, 84 AD3d 1000 [2d Dept 2011][Wife properly awarded 10% of value of husband's law practice where she made only indirect contributions and had her own legal career]; Davis v O'Brien, 79 AD3d 695 [2d Dept 2010][award to plaintiff of 50% of value of defendant's law partnership reduced to 20% on appeal, where plaintiff successfully embarked on her own career and made only indirect contributions to defendant's career]; Giokas v Giokas, 73 AD3d 688 [2d Dept 2010][wife properly awarded 10% of value of husband's business interest where she made only indirect contributions and had been employed outside the home]; Peritore v Peritore, 66 AD3d 750, 752-53 [2d Dept 2009][award of 40% of value of husband's dental practice to wife reduced to 15% on appeal, where she made indirect contributions and had own career]).
The Wife has already received substantial equitable distribution in the form of her extravagant spending on her new upscale lifestyle, financed in part with the Husband's income and in part with marital assets that would otherwise have been divided but now are gone and cannot be distributed a second time. The money that is gone would have been used, among other things, to pay for the parties' sons' college education.
The parties agreed that the Wife would retain possession of the Marital Apartment and that the Husband would retain possession of the House. As to personalty, the parties agree that the Wife should retain the parties' Lexus, and they agree generally, that she should retain the contents of the Marital Apartment, except a few items, and that the Husband should retain the contents of the House, except a few items. They disagree as to the details as to which items the Husband should take from the Marital Apartment and as to which items the Wife should take from the House, but neither presented any testimony as to these contested items, so the court will determine the allocation of those based on the persuasiveness of their testimony as to their emotional and sentimental claims to those items.
Having considered the statutory factors, the court finds that the Wife shall receive 35%, and the Husband 65%, of the non-retirement marital assets,[FN10] and each party shall receive 50% of the marital retirement assets, as set forth in the spreadsheet attached as Exhibit B. This will be [*12]accomplished by the following distributions:
The Marital Apartment: Wife;
The House: Husband;
2011 Income Tax refund: The Husband applied the parties' 2011 income tax refund of $110,565 to his 2012 return. Therefore, the entire amount is allocated to him in calculating the value of the assets distributed to each.
Other liquid and illiquid non-retirement assets, other than real estate: Each asset shall remain with the person to whom it is titled; all joint assets shall be divided 65% to the Husband and 35% to the Wife.
The Husband's interest in AB" target="_blank">D'Ambra v D'Ambra, 94 AD3d 1532 [4th Dept 2012][15%]; Charap v Willett, supra [10%]; Davis v O'Brien, supra [20%]; Massirman v Massirman, 78 AD3d 1021, 1023 [2d Dept 2010][25%]; Chalif v Chalif, 298 AD2d 348, 349 [2d Dept 2002][25%]; Peritore v Peritore, supra [15%]; Granade-Bastuck v Bastuck, 249 AD2d 444, 445 [2d Dept 1998][25%]). Second, the Wife repeatedly and unnecessarily involved ABC in this action, thus diminishing his standing at the firm. She did so knowingly and intentionally, fulfilling the threat that she had made to the Husband in December 2012 that it would damage his standing at the firm if the case [*13]went to trial, and the threat she made in or about April 2012 that she would make his life miserable.
Retirement assets: The court will divide these 50% to each party. However, since the division of the Husband's annuity will only become effective upon his retirement, and if, as and when he receives the annuity, the Husband shall be required to maintain life insurance sufficient to secure the Wife's entitlement to her one half share of the annuity.
Personal Property:
The Wife is awarded:
The parties' 2011 Lexus SX350 car, for which the Wife is allocated $37,500 toward her share of the non-retirement assets.
All of the furnishings in the Marital Apartment with the following credits and exceptions:
Since the Wife is keeping the parties' silverware, jewelry and fine arts which were valued at $140,000 on their insurance schedule, that amount will be allocated toward her share of the non-retirement assets;
The Husband shall receive:[FN11]
one-half of the Judaica in the Marital Apartment, to be apportioned by the Wife, except that his half shall include the tallis his grandparents gave him, his bar mitzvah kiddish cup, an Elijah's cup and a contemporary mezuzah given to the parties by the Husband's parents;
his sports memorabilia collection;
the piece of Berlin Wall and piece of the Iron Curtain;
The Wife shall provide the Husband, within 60 days after entry of judgment, with a disk or other computer memory stick containing copies of all digital family pictures downloaded on any computer located in the marital apartment.
Everything in the parties' storage units, except for a Secretary that belonged to the Husband's great-grandmother located in one of the Manhattan storage units;
The contents of all safe deposit boxes;
The Knicks tickets, for which the Wife is allocated $15,865 toward her share of the non-retirement assets;
The H Club membership;
All frequent flyer miles in the Wife's name, other than American Express or American Airlines;
The Husband is awarded:
All of the household furnishings in the Rental Apartment;
All of the household furnishings in the House except for the separate property identified by the Wife in her testimony: her grandmother's china, the chandelier over the kitchen table, and the clock in the playroom;
The Inwood Country Club membership;
American Express and American Airlines miles, and all other miles in his name.
Credit card bills: The Wife shall be solely responsible for the debts to American Express and MasterCard in her sole name.
Maintenance
In awarding maintenance, the court has considered the factors enumerated in Domestic Relations Law §236(B)(6). Those factors not already discussed in the equitable distribution section, above, are discussed below:
(5) The need of one party to incur education or training expenses: None. The Wife has already used marital funds to obtain the education and training she deemed necessary to return to the workforce as an attorney, arbitrator, mediator and workplace investigator, taking eight courses at the S Institute in 2009, 2010 and 2011, which enabled her to receive a Certificate of Completion from the S Institute.
(6) The existence and duration of a pre-marital joint household or a pre-divorce separate household: None.
(7) Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law: The Wife's claim that she was a victim of domestic violence, and that this adversely affected her ability to work, was totally unsupported by the record, as the court did not find her testimony on this subject to be credible.
(9) Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage: At the time of the marriage, the parties were both earning about the same. In contrast, the Husband now earns over $2,000,000 per year, while the court will impute annual income to the Wife in amounts rising over the next three years from $200,000 to $300,000. This is certainly in part as a result of her years out of the paid work force. However, the effect of her removal from the work force is substantially mitigated by her continuing involvement in professional activities, albeit on a mostly volunteer basis, and by the training she has obtained since 2009.
(10) The presence of children of the marriage in the respective homes of the parties: The parties' children are over 18.
(11) The care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity: Not applicable.
(13) The need to pay for exceptional additional expenses for the children, including but not limited to, schooling, day care and medical treatment: Not applicable, except as discussed above, [*14]that as a result of the Wife's expenditure of a large portion of the marital estate, much of which the parties had saved with the intention of using it to pay for their sons' college and graduate school expenses, the Husband will have to bear the lion's share of the financial responsibility for their sons' college expenses.
(14) The tax consequences to each party: Maintenance shall be taxable to the Wife and deductible by the Husband.
(15) The equitable distribution of marital property: The Court has distributed the parties' assets as set forth above. The assets distributed include the Husband's interest in his law firm, which is the source of all of his income from his firm except the $1,100,000 which represents his reasonable compensation. Consequently, that is the only portion of his income available for payment of maintenance.
(23) Any other factor which the court shall expressly find to be just and proper: The Wife repeatedly violated the Parenting Agreement, which substantially undermined the Husband's relationship with his sons. This is a factor that may be considered in awarding maintenance (Bragar v Bragar, 277 AD2d 136, 137 [1st Dept 2000]).
The Husband proposes that he pay the Wife support of $16,000 per month for one year, $11,000 in year two and $8,000 per month for the following six years.
The Wife proposes that the Husband pay her $65,000 per month in maintenance for the rest of her life and $8,333 per month as child support; and that he also pay for 100% of their sons' college educations, plus unlimited tutoring and test preparation costs. In order to reach this result, she calculates her monthly needs by attributing more than 86% of the family's regular monthly expenses to herself, and then adding on additional costs. Using this methodology, she claims her monthly expenses for herself alone will be 10% greater than the monthly expenses for the entire family during the marriage. She then grosses it up, and assumes that she will earn nothing.
The Wife's proposal is not supported by the statutory factors, not least because it would "enslave[] the historic wage earner to indefinite years of employment beyond any reasonable expected retirement" (J.S. v J.S., 19 Misc 3d 634, 652 [Sup Ct Nassau Co 2008]).
As set forth in the findings of fact above, the Wife's reasonable monthly expenses, to maintain the premarital life style while continuing to live in the Marital Apartment, are $12,685 per month. The Wife is capable of earning $16,800 per month in 2015, $21,017 per month in 2016, and $25,200 per month in 2017 and thereafter.
As set forth in the table below, the court awards her maintenance sufficient to provide her with $35,000 per month in taxable income for the next eight years (retroactive to March 14, 2013, the date of her application for support), which will give her substantially more after tax income than she will need to pay for her expenses; indeed, if she lives at the premarital standard of living, she will be able to save a considerable amount each year.
[*15]Year
Employment Income
Maintenance
Total
Year 1
$16,800
$18,200
$35,000
Year 2
$21,017
$14,000
$35,017
Years 3-8
$25,200
$9,800
$35,000
At the conclusion of this period, in March 2021, she will be 62 ½, and will have access to her continuing income, as well as her sizable equitable distribution award, including retirement funds and, once the Husband retires, a large annuity.
Child Support
This court, pursuant to Domestic Relations Law §240(1-b), has considered the calculations delineated in Domestic Relations Law §240(1-b)(c) as well as the factors set forth in Domestic Relations Law §240(1-b)(f) which permit a deviation from the calculations set forth in Domestic Relations Law §240(1-b)(3).
The first step in determining child support is to determine each parent's income. While Section 240(1-b)(b)(5) of the Domestic Relations Law provides that income for purposes of calculating child support is the "gross (total) income as it should have been or should be reported in the most recent federal income tax return," courts may rely upon partial information from a tax year not yet completed, and may base income on average projected income (Culhane v Holt, 28 AD3d 251 [1st Dept 2006]; Kellogg v Kellogg, 300 AD2d 996 [4th Dept 2002]). A court is not required to rely upon a party's own account of his or her finances and may impute income based upon his or her past income or demonstrated earning potential (Culhane v Holt, supra).
The Wife's adjusted gross income for the purposes of child support is $378,000.[FN12] The Husband's adjusted gross income for the purposes of child support, based on his 2012 tax return, is $1,885,959.[FN13] The combined parental income for purposes of child support is $2,263,959. The prorated responsibility between the parents for child support obligations is 83% for the Husband and 17% for the Wife.
For child support until one child is emancipated (the older child will turn 21 on February 9, 2015), the appropriate child support percentage is 25%. On the first $141,000 of combined income, applying a child support percentage of 25%, the Husband's annual obligation would be $29,257.50 per year for basic child support ($141,000 X .25 = $35,250 X .83 = $29,257.50), unless the court finds that this would be unjust or inappropriate after consideration of the factors [*16]in subsection set out in "f" of Section 240(1-b) of the Domestic Relations Law.
However, since the combined parental income exceeds $141,000, the court must decide whether to make an award based on the additional income and, if so, whether to apply the statutory formula and/or rely on the factors set forth in DRL §240(1-b)(f) (See A.D. Scheinkman, McKinneys Practice Commentaries, C 240:27A; DRL §240[1-b][c][3]). Where the court awards support based on parental income above $141,000, irrespective of the statutory method used, the court must articulate a rationale for its determination (Matter of Cassano v Cassano, 85 NY2d 649 [1995]; Anonymous v Anonymous, 12/8/99 NYLJ 27 (col 6) affd, 286 AD2d 585 [1st Dept 2001]).
The court finds that an award based on income above $141,000 is appropriate. Given the combined parental income, the children would have enjoyed a very comfortable lifestyle had the marriage not ended. However, the court further concludes that the award should not be based on the full combined parental income. Given the parental income, the family's lifestyle during the marriage, and the children's reasonable needs, the court finds that application of the statutory formula to parental income up to $350,000 is appropriate.
Using that figure to calculate child support for two children would result in a combined basic child support obligation in the amount of $87,500 per year, of which 83%, or $72,625 per year ($6,052.08 per month) would be allocated to the Husband.
After one child becomes emancipated, the Husband shall pay the Wife basic child support of $4,115.42 per month ($350,000 X .17 =$59,500 X .83 = $49,385/12 = $4,115.42) until the second child is emancipated.
Section 240(1-b)( c )(7) of the Domestic Relations Law permits the court to award educational expenses, including college expenses, "having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires ." The factors courts consider in deciding whether to obligate a non-custodial parent to contribute to a child's college expenses include factors include the educational background of the parents and their financial ability to provide the necessary funds, the child's academic ability and endeavors, and the type of college that would be most suitable for the child (see Rosado v Hughes, 23 AD3d 318 [1st Dept 2005]; Pamela T. v Marc B., 33 Misc 3d 1001 [Sup Ct NY Co 2011]; Naylor v Galster, 48 AD3d 951 [3d Dept 2008]; Reiss v Reiss, 56 AD3d 1293 [4th Dept 2008]). Here, it is appropriate to direct payment of college expenses as part of the child support award, particularly since the parties contemplated throughout their marriage that they would pay for their sons' college educations. However, the funds the parties saved for their sons' college education expenses were either dissipated by the Wife, as discussed above, or will be distributed in accordance with this decision, 65% to the Husband and 35% to the Wife. Accordingly, the Husband shall contribute 65% and the Wife shall contribute 35% of the costs of each child under 21 attending a private university or college, including tuition, room and board, books, computers, and reasonable transportation costs for four round trips between home and school each year, if such costs are necessary. The cost of college advising and college trips for the younger son shall be shared by the parties in the same manner, up to a total cap on such expenses [*17]of $25,000, the approximate amount paid for the older son. Any amount in excess of that should be shared equally by the parents. The Husband shall be permitted to deduct from basic child support that portion of college expenses he has paid for a child under 21 which is attributable to room and board (Azizo v Azizo, 51 AD3d 438 [1st Dept 2008]).
With respect to other "add-on" expenses, the Husband agreed to maintain the children on his health insurance policy and to pay 100% of this cost, until each child turns 21. The parties shall share the cost of unreimbursed medical, dental, optical, and mental health expenses for each child until he is 21 according to their pro rata shares, with the Husband paying 83%, and the Wife 17%, of such expenses within five days following receipt of documentation that they have been incurred.
The Wife shall be entitled to claim the older son as a dependent for tax purposes, and the Husband shall be entitled to claim the younger son as a dependent for tax purposes, for so long as permitted by applicable law.
The Husband may take a credit against retroactive awards for all payments made previously for spousal and child support during the pendency of this action.
Counsel Fees
Domestic Relations Law §237 provides that in an action for a divorce the court may award counsel fees "to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and the respective parties." Indigence is not a prerequisite to an award of counsel fees pursuant to Domestic Relation Law §237 (DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987]). In considering an application for an award of counsel fees, the court shall consider the "equities and circumstances" of the case before it (Basile v Basile, 122 AD2d 759 [2d Dept 1986]), including the financial circumstances of the parties, the relative merits of the positions taken at trial, and any dilatory tactics the court finds that a party undertook during the litigation (Warner v Houghton, 43 AD3d 376 [1st Dept 2007]).
In this case, the Wife has already spent approximately $850,000 in marital assets to pay attorneys' fees and other litigation expenses to:
the seven law firms that represented her in this case;
numerous other law firms with whom she has consulted;
numerous expert witnesses who were not designated as experts by October 1, 2012 as required by the September 6, 2012 stipulated order and who were therefore precluded from testifying;
numerous additional consultants; and
Parente Beard, whose bills include (1) valuation work that the Court's March 15, 2012 Order requires the Wife to pay because she refused a neutral evaluator and (2) a lifestyle analysis that "any high school kid could have done" because "really all it is is arithmetic" (Mar. 15, 2013 Tr. at 34-35; May 1, 2013 Trial Tr. at 1528-29).
In determining an award of counsel fees, a court may properly consider one party's unnecessarily prolonging the litigation and escalating costs (Maldonado v. Maldonado, 100 AD3d 448 [1st Dept 2012]; Schorr v Schorr, 46 AD3d 351, 351 [1st Dept 2007]; Kurtz v Kurtz, 1 AD3d 214, 215 [1st Dept 2003]; Lammers v Lammers, 227 AD2d 255, 255 [1st Dept 1996]; Meyn v Meyn, 119 AD2d 645 [2d Dept 1986]). Thus, "[a] party who has engaged in conduct resulting in unnecessary litigation may properly be denied an award of an attorney's fee ." Chamberlain v Chamberlain, 24 AD3d 589, 595 [2d Dept 2005]; see also Tenore v Tenore, 110 AD3d 711 [2d Dept 2013]; Lyman v Lyman, 108 AD3d 653 (2d Dept 2013]). In this case, the Wife's unreasonable conduct, which resulted in unnecessary and costly litigation, included:
Hiring and firing top-tier members of the matrimonial bar, each time materially increasing the cost of the proceeding to both sides;
Prolonging discovery by non-compliance with scheduling orders;
Lying on her net worth statement by inflating expenses by large amounts in 22 separate categories and lying on the witness stand over and over again, each time requiring the Husband to spend time and money disproving her lies, and the Wife's counsel to spend time and money seeking to defend what turned out to be lies;
Litigating the admissibility of post office records and imposing the cost on the Husband of a federal proceeding to obtain certified copies of the post office records;
Arguing and re-arguing over absurdly long witness lists full of names, which the Wife's counsel admitted he did not vet prior to (or even weeks into) trial, and who ultimately refused to testify, in the case of Linda Feder even after the Wife represented that she was an "essential" and "crucial" witness and even after the Wife's counsel "spent . . . a good amount of time . . . with her";
Arguing and re-arguing over expert witnesses (including a mental health expert, a vocational expert, an actuary, a real estate appraiser, a medical insurance consultant, a forensic accountant, and a certified public accountant) not designated as expert witnesses by October 1, 2012, as required by the September 6, 2012 Stipulated Order;
Hiring Proskauer Rose LLP as "special Benefits counsel," who billed the Wife $115,000, and whose work must have been duplicative, since they did not consult with any of her prior counsel, her prior expert, the Husband's expert and ABC.
Paying enormous sums of money to these expert witnesses, even after the court ruled they could [*18]not testify;
Paying enormous sums of money to other consultants;
Arguing and re-arguing numerous other issues and rulings over and over again;
Using trial subpoenas containing over 100 blunderbuss discovery requests;
Engaging in long, repetitive and wasteful examinations and cross-examinations,
Misrepresenting the contents of supposedly identical hospital records, resulting in hours of lost trial time, two arguments on non-trial days, and briefing of an Order to Show Cause;
Seeking adjournments for alleged leg ailments that did not preclude the Wife's attendance at Knick games or long drives to Philadelphia and Ithaca; and
Refusing to allow her counsel to speak with the court, even during the lunch break, after hours or on the telephone without a court reporter present, adding the cost of the court reporter, and the cost of the attorney time spent waiting for court reporters.
Finally, the Wife's expenditure of an enormous amount of marital funds on her own unnecessary counsel and expert fees, which is a factor in the diminution of the marital assets between the date of commencement and the date of trial, far exceeds what this court would have awarded her as the 'less monied' spouse. In view of this history, the court will not award any further attorneys' fees to the Wife.
The court will not order that the Wife pay any sanctions to the Husband, as the court has considered in deciding equitable distribution and attorneys' fees the conduct by the Wife which the Husband alleged merited the imposition of sanctions.
IT IS ORDERED that the Husband's counsel shall settle judgment in accordance with this decision within 60 days of the date of this decision; and it is further
ORDERED that, if the Judgment of Divorce and other documents necessary for its entry are not filed with the Matrimonial Clerk within 60 days of the date of this decision for any reason, the parties and counsel shall appear in Part 24 on April 10, 2015 at 9:30 a.m.
This constitutes the decision and order of the court.
Dated:January 26, 2015ENTER:
____________________
Hon. Ellen Gesmer, JSC
EXHIBIT A: THE PARTIES' ASSETS
Value for Equitable
Date of Commencement
Date of Trial
Distribution
I. LIQUID ASSETS:
VALUES
TOTALS
VALUES
TOTALS
VALUES
TOTALS
Checking Accounts:
Citibank # xxx7789 (J)
$25,217
$209
As of 9/22/13
$209
Citibank # xxx3333 (H)
$46,803
$42,338
As of 9/30/13
$42,338
Citibank # xxx5147 (H)
$0
$681
As of 9/30/13
$681
Citibank # xxx1419 (W)
$7,270
$3,567
As of 9/2/13
$3,567
TD Bank # xxx0-631-T-### (W)
$5,259
As of 8/25/13
$5,259
Total Checking Accounts:
$79,290
$52,054
$52,054
Savings Accounts:
Citibank # xxx7522 (J)
$10,696
$1
As of 9/22/13
$1
Citibank # xxx5788 (J)
$146
$6
As of 9/22/13
$6
Citibank # xxx6346 (H)
$917
$918
As of 9/30/13
$918
Citibank # xxx5155 (H)
$0
$0
$0
Fidelity # xxx2914 (H)
$674,476
$0
As of 9/30/13
$0
Total Savings Accounts:
$686,235
$925
$925
$925
Brokerage Accounts:
Fidelity # xxx2829 (H)
$1,433,359
$1,083,732
As of 9/30/13
$1,083,732
Morgan Stanley # xxx6-192 (H)
$388,633
$395,059
As of 9/30/13
$395,059
Fidelity # xxx2810 (W)
$884,761
$119,339
As of 9/30/13
$119,339
Total Brokerage Accounts:
$2,706,753
$1,598,130
$1,598,130
$1,598,130
[*19]
2011 Tax Refund:
Federal (H used full refund on 2012 taxes)
$80,072
$80,072
$80,072
NYS/NYC (H used full refund on 2012 taxes)
$30,493
$30,493
$30,493
Total 2011 Tax Refund:
$110,565
$110,565
$110,565
Liability Offsets:
Uncleared checks as of date of commencement
($13,119)
$0
Outstanding credit card charges as of date of commencement
($32,113)
2011 estimated taxes paid in 2012
($108,000)
Total Liability Offsets:
($153,232)
$0
$0
TOTAL LIQUID ASSETS
$3,429,611
$1,761,674
$1,761,674
Value for Equitable
Date of Commencement
Date of Trial
Distribution
II. ILLIQUID ASSETS:
VALUES
TOTALS
VALUES
TOTALS
VALUES
TOTALS
Real Estate:
The Marital Apartment
$3,000,000
$3,000,000
$3,000,000
The House
$1,225,000
$1,225,000
$1,225,000
Total Real Estate:
$4,225,000
$4,225,000
$4,225,000
Investment Partnerships:
ABC-Key Investments LLC (H)
$291
$277
As of 12/31/12
$277
As of 12/31/12
ABC-Euro-American Commix Fund LLP (H)
$9,222
$10,818
As of 12/31/12
$10,818
As of 12/31/12
ABC-Euro-American LLC (H)
$3
$3
As of 12/31/12
$3
As of 12/31/12
ABC Technology Ventures LLC (H)
$3,716
$3,716
As of 12/31/12
$3,716
As of 12/31/12
Total Investment Partnerships:
$13,232
$14,814
$14,814
Receivables:
Loan Receivable Due
$80,000
$80,000
$80,000
2011 NYC Arbitration Receivable
$50,000
$50,000
$50,000
Total Receivables:
$130,000
$130,000
$130,000
Cash Surrender Value of Life Insurance:
[*20]
AVIVA # xxx2 090 ($1,000,000 initial face amount; H is the insured party; H is the policy owner)
$44,166
$44,166
$44,166
PPVUL ($173,968 face amount; H is the insured party)
CEAVUL ($1,722,532 face amount; H is the insured party)
AXA ($2,227,500 face amount; H is the insured party)
Total Cash Surrender Value of Life Insurance:
$44,166
$44,166
$44,166
Security Deposits:
HSBC # xxx0012 (H's Rental Apartment Security)
$14,000
$14,000
$14,000
Total Security Deposits:
$14,000
$14,000
$14,000
Value for Equitable
Date of Commencement
Date of Trial
Distribution
III. BUSINESS INTERESTS:
VALUES
TOTALS
VALUES
TOTALS
VALUES
TOTALS
ABC LLP
$3,250,000
$3,250,000
$3,250,000
Undistributed ABC capital account distributed in 2012 and spent with other liquid assets
$787,654
$0
$0
Total Business Interests:
$4,037,654
$3,250,000
$3,250,000
Value for Equitable
Date of Commencement
Date of Trial
Distribution
IV. PERSONALTY:
VALUES
TOTALS
VALUES
TOTALS
VALUES
TOTALS
Vehicles:
2011 Lexus RX 350 (H) (Estimated)
$35,000
$35,000
$35,000
Pre-paid service contract (2011 Lexus RX 350)
$2,500
$2,500
$2,500
Total Vehicles:
$37,500
$37,500
$37,500
Silverware, Jewelry, Fine Arts:
Silverware
$25,000
$25,000
Jewelry
$15,000
$15,000
Fine Arts
$100,000
$100,000
Total Silverware, Jewelry, Fine Arts:
$140,000
$140,000 [*21]
Knicks Tickets
$15,865
$15,865
$15,865
$15,865
TOTAL ILLIQUID ASSETS
$8,501,552
$7,871,345
$7,871,345
TOTAL NON-RETIREMENT ASSETS
$11,931,163
$9,633,019
$11,394,693
Value for Equitable
Date of Commencement
Date of Trial
Distribution
V. RETIREMENT ASSETS:
VALUES
TOTALS
VALUES
TOTALS
VALUES
TOTALS
Miscellaneous Retirement Accounts:
Fidelity IRA # xxx8835 (H)
$35,756
$48,940
As of 9/30/13
$48,940
As of 9/30/13
Fidelity IRA # xxx8827 (W)
$122,716
$154,645
As of 9/30/13
$154,645
As of 9/30/13
Fidelity IRA # xxx8843 (W)
$119,792
$155,893
As of 9/30/13
$155,893
As of 9/30/13
401(k) Savings and Investment Plan (Current value $552,758: Less 2012 contribution of $22,500) (H)
$410,571
$530,258
As of 9/30/13
$530,258
As of 9/30/13
Defined Contribution Plan (H)
$188,951
$262,255
As of 9/30/13
$262,255
As of 9/30/13
Total Miscellaneous Retirement Accounts:
$877,786
$1,151,991
$1,151,991
H's ABC Retirement Benefits for Period Beginning 2010
a. ABC Partners' Variable Defined Benefit Plan
$23,206
$23,206
As of 12/31/11
$23,206
As of 12/31/11
b. Variable Portion of the ABC Partners' Target Pension Plan
$64,536
$64,536
As of 12/31/11
$64,536
As of 12/31/11
c. Variable Account (New York Life Insurance)
$186,103
$186,103
As of 12/31/11
$186,103
As of 12/31/11
Total ABC Retirement Benefits for Period Beginning 2010:
$273,845
$273,845
$273,845
TOTAL NON-ANNUITY RETIREMENT ASSETS
$1,151,631
$1,425,836
$1,425,836
H's ABC Retirement Benefits Pre-2010
[*22]
H's ABC Retirement Benefits for Period Through 2009 (Lifetime annuity of $313,844 with a guaranteed 10 year payout)
Lifetime Annuity of $313,844
Lifetime Annuity of $313,844
Lifetime Annuity of $313,844
EXHIBIT B: EQUITABLE DISTIRIBUTION
I. LIQUID ASSETS
Value
TOTAL
H
W
Checking Accounts:
Citibank # xxx7789 (J)
$209
$135.85
$73.15
Citibank # xxx3333 (H)
$42,338
$42,338
Citibank # xxx5147 (H)
$681
$681
Citibank # xxx1419 (W)
$3,567
$3,567
TD Bank # 0-631-T-### (W)
$5,259
$5,259
Total Checking Accounts:
$52,054
Savings Accounts:
Citibank # xxx7522 (J)
$1
$0.65
$0.35
Citibank # xxx5788 (J)
$6
$3.90
$2.10
Citibank # xxx6346 (H)
$918
$918
Citibank #9997985155 (H)
$0
Fidelity # xxx2914 (H)
$0
Total Savings Accounts:
$925
Brokerage Accounts (Managed by KLS):
Fidelity # xxx2829 (H)
$1,083,732
$1,083,732
Morgan Stanley # xxx6-192 (H)
$395,059
$395,059
Fidelity # xxx2810 (W)
$119,339
$119,339
Total Brokerage Accounts:
$1,598,130
2011 Tax Refund:
H used full refund on 2012 taxes
$110,565
$110,565.00
Total 2011 Tax Refund:
$110,565
II. ILLIQUID ASSETS
Value
TOTAL
H
W
Real Estate:
The Marital Apartment
$3,000,000
$3,000,000.00
The House
$1,225,000
$1,225,000.00
Total Real Estate:
$4,225,000
Investment Partnerships:
[*23]
Wegoma-Key Investments LLC (H)
$277
$277
Wegoma-Euro-American Commix Fund LLP (H)
$10,818
$10,818
Wegoma-Euro-American LLC (H)
$3
$3
Weil Technology Ventures LLC (H)
$3,716
$3,716
Total Investment Partnerships:
$14,814
Receivables:
Loan Receivable Due (H)
$80,000
$80,000
2011 NYC Arbitration Receivable (W)
$50,000
$50,000
Total Receivables:
$130,000
Cash Surrender Value of Life Insurance:
AVIVA # xxx2 090 ($1,000,000 initial face amount; H is the insured party; H is the policy owner)
$44,166
PPVUL ($173,968 face amount; H is the insured party)
CEAVUL ($1,722,532 face amount; H is the insured party)
AXA ($2,227,500 face amount; H is the insured party)
Total Cash Surrender Value of Life Insurance:
$44,166
$44,166
Security Deposits:
HSBC # xxx0012 (Apartment Security)
$14,000
$14,000
Total Security Deposits:
$14,000
III. BUSINESS INTERESTS:
Value
TOTAL
H
W
Business Interests:
ABC
$3,250,000
$3,250,000
Total Business Interests:
$3,250,000
IV. PERSONALTY:
Value
TOTAL
H
W
Vehicles:
2011 Lexus RX 350 (H) (Estimated)
$35,000
Pre-paid service contract (2011 Lexus RX 350)
$2,500
Total Vehicles:
$37,500
$37,500
Silverware, Jewelry, Fine Arts:
Silverware
$25,000
$25,000.00
Jewelry
$15,000
$15,000.00 [*24]
Fine Arts
$100,000
$100,000.00
Total Silverware, Jewelry, Fine Arts:
$140,000
Knicks Tickets
$15,865
$15,865
$15,865
TOTAL NON-RETIREMENT MARITAL ASSETS:
$9,633,019.00
$6,261,413.40
$3,371,605.60
% of Marital Non-retirement Assets to Each Party
64.9995%
35.0005%
W's Separate Property:
Citibank # xxx6303 (W)
$46,715.00
1,410 Shares GE(W)
$25,944.00
110 Shares Mueller Industries(W)
$4,350.00
Plus: 10 Years of Dividends Since 1/4/12
Total W's Separate Property:
$77,009.00
TOTAL NON-RETIREMENT ASSETS INCLUDING SEPARATE PROPERTY
$6,261,413.40
$3,448,614.60
V. RETIREMENT ASSETS:
Value
TOTAL
H
W
Miscellaneous Retirement Accounts:
Fidelity IRA # xxx8835 (H)
$48,940
$48,940.00
Fidelity IRA # xxx8827 (W)
$154,645
$154,645.00
Fidelity IRA # xxx8843 (W)
$155,893
$155,893.00
401(k) Savings and Investment Plan (Current value $552,758: Less 2012 contribution of $22,500; less distribution to W to equalize retirement assets) (H)
$530,258
$127,878.00
$402,380.00
Defined Contribution Plan (H)
$262,255
$262,255.00
Total Miscellaneous Retirement Accounts:
$1,151,991
H's ABC Retirement Benefits for Period Beginning 2010
a. ABC Partners' Variable Defined Benefit Plan
$23,206
$23,206.00
b. Variable Portion of ABC Partners' Target Pension Plan
$64,536
$64,536.00
c. Variable Account (New York Life Insurance)
$186,103
$186,103.00
Total ABC Retirement Benefits for Period Beginning 2010:
$273,845
[*25]
TOTAL NON-ANNUITY RETIREMENT ASSETS:
$1,425,836
$712,918.00
$712,918.00
H's ABC Retirement Benefits Pre-2010
Lifetime annuity of $313,844 with a guaranteed 10 year payout
Lifetime Annuity of $313,844
$156,922/year
$156,922/year
FootnotesFootnote 1:Specifically, she certified a statement as to the Wife that stated, "I HAVE EXAMINED THE ABOVE-NAMED PERSON PRIOR TO ADMISSION AND CONFIRM: that the person is in need of involuntary care and treatment in a hospital providing inpatient services for the mentally ill; and that as a result of his or her mental illness, the person poses a substantial threat of harm to self or others. ("Substantial threat of harm" may encompass (i) the person's refusal or inability to meet his or her essential need for food, shelter, clothing, or health care; or (ii) the person's history of dangerous conduct associated with non compliance with mental health treatment programs)." (Capitals in original).
Footnote 2:Production of a witness could have been obviated by supplying a certified copy, but Wife's counsel failed to follow the statutory procedure for doing so (CPLR 3122-a).
Footnote 3:The Wife's statement in her brief that her participation in the program was "put on hold/impeded" by her two day hospitalization at New York Presbyterian/Weill Cornell in July 2009 is totally unsupported by the record.
Footnote 4:The Wife's statement in her brief that she is no longer on the panel as the result of her failure to complete a decision in one arbitration is totally unsupported by the record.
Footnote 5:The court bases this finding on the credible and uncontradicted report and testimony of Lee Miller.
Footnote 6:In reaching this number, the court finds that that the numbers tendered by Ms. Boughton were grossly inflated. They included many non-recurring expenses totally irrelevant to an award of maintenance, including, for example, the parties' sons' clothing, tuitions, summer camp and bar mitzvah celebrations. They also included exaggerated or unnecessary costs, such as charitable contributions and storage.
Footnote 7:In contrast, the Husband has consistently taken the position that the Wife has a treatable mental condition.
Footnote 8:Although the Husband requested that he be reimbursed by the Wife for these expenses, the court finds instead that he will be adequately compensated for them by the unequal allocation of equitable distribution, as set forth below.
Footnote 9:The Wife also cites Hwang v Hwang (308 AD2d 560 [2d Dept 2003]), but it appears that the husband in that case did not appeal from that part of the award which awarded the wife 50% of the value of his law license and practice, so that case does not provide appellate precedent for a distribution of 50% of the value of a party's law practice.
Footnote 10:The property held by the insurance trust belongs to the trust, not the marital estate and is not subject to distribution in this proceeding.
Footnote 11:Neither party presented any testimony as to the value of any of the items allocated to the Husband, or as to any of the Judaica. If the parties are unable to agree as to distribution of the balance of the Judaica in the Marital Apartment, those items shall be distributed by coin toss to determine which party may select the first item, and the parties shall take turns selecting one item each until all but four of the remaining items have been distributed. The last four items shall be distributed to the Wife.
Footnote 12:This figure is based on gross income to the Wife of $420,000 per year, as discussed above, less 10% ($42,000) to approximate Social Security, Medicare and New York City taxes.
Footnote 13:This figure is based on gross income from all sources as reported on the Husband's 2012 tax return ($2,136,779), less the non-deductible portion of the Husband's 2012 Self Employment Tax ($32,420) and the maintenance awarded to the Wife above ($218,400). The court notes that the distributive award to the Wife of her share of his interest in his law firm is not deductible from the Husband's income, or includible in the Wife's, for the purposes of calculating child support (Holterman v Holterman, 3 NY3d 1 [2004]).
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