S.Z. v B.V.

[*1] S.Z. v B.V. 2017 NY Slip Op 51936(U) Decided on December 26, 2017 Supreme Court, Richmond County DiDomenico, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 26, 2017
Supreme Court, Richmond County

S.Z., Plaintiff, Against

against

B.V., Defendant.



5****/2015



Plaintiff by: Galina Feldman Esq.

61 Broadway, Suite 2780

New York, NY 10006

Defendant by: Jay Baum Esq.

3117 Richmond Road, 2nd Floor

Staten Island, NY 10306
Catherine M. DiDomenico, J.

Procedural History

Plaintiff S. Z. (hereinafter "Wife") commenced this action for divorce against Defendant B. V. (hereinafter "Husband") by Summons and Verified Complaint filed on or about August 19, 2015. A review of the official court file reveals that Husband never filed a pleading responsive to Wife's complaint. A preliminary conference was held on October 20, 2015. The Preliminary Conference Order, issued that date, indicates that the parties agreed to resolve the issue of grounds on consent, however no specific ground is indicated. In accordance with the Preliminary Conference Order, and the record that date, this Court issued a separate Short Form Order indicating that the Plaintiff would be granted a divorce pursuant to DRL §170(7), after the resolution of all ancillary issues.

An Inquest on the issue of grounds was held on the trial record of September 26, 2016. Wife credibly testified that the parties' marriage had broken down irretrievably for a period of at least six months pursuant to Domestic Relations Law §170(7). In accordance with her testimony, Wife was granted a Judgment of Divorce on the record, however, that Judgment was held in [*2]abeyance until all ancillary issues were resolved on consent, or otherwise adjudicated by this Court.

In his written summation, Husband argues that he should be granted a divorce on the ground of cruel and inhuman treatment pursuant to Domestic Relations Law §170(1). Procedurally, Husband has never raised this claim, as he has failed to file a counterclaim for divorce. However, even if the Court were to consider Husband's application on its merits, the Court finds that such a finding would be unsupported by the trial record. Husband's claim that his Wife stole $300 from his pants pocket, had him arrested on "baseless" claims of domestic violence, failed to clean the house, and refused to contribute to the repair of the air conditioner are woefully insufficient to establish the pattern of harmful treatment envisioned by DRL §170(1). See e.g., Helm v. Helm, 92 AD3d 1164 (3rd Dept. 2012); Ying Jing Yan v. Ke-en Wang, 85 AD3d 448 (1st Dept. 2011). Rather, the record more sufficiently supports a finding that the parties' marriage had broken down irretrievably, as established by Wife and agreed to by the parties at the Preliminary Conference. See Matter of Motta v. Motta, 145 AD3d 560 (1st Dept. 2016).

The Trial

The trial of this action commenced on September 26, 2016 and continued on the following dates, September 27, 2016, January 19, 2017, January 20, 2017, February 3, 2017, February 6, 201, February 6, 2017, February 17, 2017, March 15, 2017, and March 27, 2017. Although the trial spanned nine days, the only issues that were litigated were issues of equitable distribution. In regard to the remaining issues, there are no children of this marriage, accordingly there are no issues of custody, visitation or child support. The issue of maintenance was resolved by Short Form Order dated August 5, 2017, wherein both parties agreed to waive their claims against one another. While counsel fees are technically an unresolved issue, very little trial testimony was dedicated to the issue. (See "Counsel Fees" below).

Throughout the course of this litigation, Wife was represented by the Law Firm of Galina Feldman P.C. During the pre-trial and trial proceedings Husband was represented by Jay S. Baum Esq., however after the completion of the trial, but before written summations were submitted, Husband's counsel made an application to withdraw from his representation. Said motion was granted on or about September 19, 2017. In addition to his request to withdraw, Mr. Baum also requested a charging lien for the reasonable value of his services. That application shall be addressed by separate Decision and Order of this Court.

At trial, Wife testified on her own behalf and called Husband as a witness. On his direct case, Husband testified on his own behalf and called Wife as a witness. No other witnesses testified at trial. Written summations were received at the conclusion of the trial record.

Decision after Trial

Equitable Distribution

The Domestic Relations Law recognizes that a marriage is an economic partnership. As such, during the course of a marriage, spouses share in both its profits and losses. When a marriage comes to an end, courts are required to equitably distribute both the assets and liabilities remaining from the marriage. See Fields v. Fields, 15 NY3d 158 (2010). A trial court considering the factors set forth in the Domestic Relations Law has broad discretion in deciding what is equitable under the circumstances. See Krolikowski v. Krolikowski, 110 AD3d 1449 (4th Dept. 2013). Indeed, when it comes to the equitable distribution of marital property, Domestic Relations Law § 236 (B)(5)(d)(13) authorizes the trial court to take into account "any other factor which the court shall expressly find to be just and proper." Consequently, the trial court has substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances. See Mahoney-Buntzman v. Buntzman, 12 NY3d 415 (2009). Equitable distribution does not necessarily indicate equal distribution. See Groesbeck v. Groesbeck, 51 AD3d 722 (2d Dept. 2008).

As indicated above, the general theory of equitable distribution envisions an "economic partnership" between spouses. At trial, Husband attempted to establish that he and his Wife never engaged in such a partnership, and thus, that the normal principles of equitable distribution should not apply to the distribution of their assets. See Galvin v. Francis, 20 AD3d 550 (2d Dept. 2005); See also, Gonzalez v. Garcia, 134 AD3d 989 (2d Dept. 2015). In support of this claim, Husband repeatedly testified that his Wife never contributed anything to the marital finances and that he kept his money "separate" from his Wife. However, the trial record belies Husband's claim. While it is true that the parties did not completely enmesh their finances, they did come to an agreement as to how shared expenses would be paid. Moreover, Husband credibly testified that throughout the marriage he financially supported his Wife by providing for her needs and contributing to her purchases. Moreover, the parties' jointly held title to property, such as the marital home, and an Atlantic City timeshare. The parties also had at least one joint bank account.

While the parties did not completely enmesh their finances, and arguably had a strained relationship from the early stages of their marriage, the record does not support a finding that the parties failed to establish an economic partnership. Compare, Medley v. Medley, 34 Misc 3d 1208(a) (Sup. Ct. Qns. Cty, 2011)[parties entered into a written agreement indicating that they did not intend to create an economic partnership]. Accordingly, the Court finds that a normal application of the principles of equitable distribution should be applied in this matter.

When making its determinations as to equitable distribution, the Court has considered the factors enumerated in DRL §236. See Henery v. Henery, 105 AD3d 903 (2d Dept. 2013). In addition to any factor specifically considered in relation to a particular asset herein, the Court finds that: (1) this is marriage of moderate duration (15 years); (2) that both parties are of retirement age, Husband being 76 and Wife being 66; (3) that Husband was historically the more monied spouse in this action, but has since retired from employment; (4) that Husband has had a history of health issues while Wife is in relatively good health; (5) that both parties have made direct and indirect contributions the marital household, with Husband contributing more than Wife; (6) that both parties are retired and thus their present and future earning capacity is limited [*3]to social security and retirement funds; and (7) that neither party wrongfully dissipated marital assets.[FN1]

Marital Home

The marital home is located on Challenger Drive in Staten Island, New York. Both parties currently cohabitate in the marital home. The manner in which this real property was obtained by the parties is somewhat unique, and legally relevant to this divorce proceeding. The property was purchased on June 22, 2000, approximately two months before the parties married in August of 2000. The home was purchased for the sum of $135,000. Husband credibly testified that when he purchased the home he was concerned that he would not live long enough to pay the mortgage loan (a 15 year term), so he decided to add the Plaintiff's name onto the mortgage loan and the deed to secure her future inheritance.

Generally, when real property is purchased by a married couple, those spouses obtain and hold title as a "tenancy by the entirety." See EPTL §6-2.2(b). However, when real property is jointly purchased by unmarried parties, the property is titled either as a tenancy in common, or a joint tenancy. See EPTL §6-2.2(a). Here, both parties obtained the deed to the Challenger Drive property as joint tenants with rights of survivorship. See Defendant's Ex. A. The parties' subsequent marriage did not convert this ownership interest into a tenancy by the entirety. See Matter of Marcucilli-Stuart, 19 Misc 3d 1119(A) (Sup. Ct. Nassau Cty. 2008); See also, Novak v. Novak, 135 Misc 2d 909 (Sup. Ct. Dutchess Cty. 1987).

The above analysis is relevant as the real property at issue was purchased prior to the marriage. Generally, property purchased during a marriage is presumed to be "marital" in nature, while property purchased before marriage is "separate" property. See DRL § 236(B)(1)(d)(1); See also, Matter of McNair v. Fenyn, 149 AD3d 747 (2d Dept. 2017). As the marital home at issue herein was purchased before the marriage, it is not part of the marital estate, and thus the factors enumerated in DRL 236(B)(5)(c) do not necessarily apply. Rather, the home is subject to partition. See Freigang v. Friegang, 256 AD2d 539 (2d. Dept. 1998).

While the factors of DRL §236 do not apply, the remedy of partition is still subject to equitable considerations. See Ripp v. Ripp, 38 AD2d 65 (2d Dept. 1971); See also Koniosis v. Tsororos, 83 AD3d 665 (2d Dept. 2011). When partitioning real property, the court is directed to consider such things as separate contributions to acquisition, maintenance and improvement of the property by one party or the other. See Quattrone v. Quattrone, 210 AD2d 306 (2d Dept. 1994). The Court may also consider the nature of the relationship between the parties, and any disparity in mortgage payments made during the period of ownership. See C.Y. v. H.C., 841 N.Y.S.2d 825 (Sup. Ct. New York Cty. 2007).

Both parties testified at length during trial as to their contributions towards the purchase and maintenance of the Challenger Drive property. Husband testified that when the parties' closed on the house he provided a down payment of $60,000 towards the purchase price. [*4]Husband testified that he did so without any contribution from Wife, by utilizing funds that he had obtained from a prior personal injury award in the sum of $200,000.[FN2] Husband further indicated that since he paid this down payment himself, that he requested that Wife contribute the sum of $10,000 to the mortgage at the end of the first year of repayment.

Wife testified to a different version of events. While Wife agreed that the parties made a $60,000 down-payment at the closing, she indicated that she paid one half of that sum. Wife testified that she contributed $20,000 from her parents as a cash gift directly to Husband, and that Wife produced an additional $10,000 from her savings in the form of a check. In addition to her claim for a $30,000 contribution to the down-payment, Wife testified that at the end of the first year of repayment, she contributed an additional $9,900 in accordance with Husband's request.

At trial, both parties struggled to substantiate their claims regarding the down payment. However, on balance, this Court finds Husband's claims to be more credible. Unlike Husband, Wife was unable to offer any documentary proof whatsoever to support her claims. The only evidence that she offered was the $9,900 check paid a year after the parties' purchased the property. (See Def. Ex. C).

Husband, in contrast, was able to produce the closing statement, which failed to indicate the $30,000 payment allegedly made by Wife. (See Def. Ex. Z). In addition, Husband was able to produce various checks regarding payments that he made in relation to the purchase of the marital home. (See Def. Exs. Q-Y).[FN3] Adding these checks together, Husband was able to establish that he contributed the approximate sum of $44,625. These payments included various fees associated with the purchase of the marital home, including legal fees, a contract deposit, title fees, and direct payments to the seller. While Wife argues that an additional check indicated on the closing document in the amount of $20,654, that Husband could not produce, could have originated from the $30,000 she claims to have provided, she has offered no documentary evidence to substantiate that claim.

In addition to payments made at the closing, both parties testified as to their agreement on how the mortgage would be paid during their marriage. Wife's testimony in this regard was confusing at best, and often self-contradictory. Husband, on the other hand, credibly testified that he was solely responsible for the payment of the mortgage from the time of purchase in August of 2000 until 2002 when he came to an alleged "realization" that his Wife had only married him for money. In or around that time, Husband offered to purchase (buy out) Wife's [*5]interest in the home, however he could not produce the sum of $100,000 that Wife demanded. After this conversation, the parties modified their oral agreement regarding the payment of the mortgage and agreed that they would share the expense. Accordingly, between the years 2002 to 2010 the parties split the monthly mortgage payment evenly. Finally, in or around 2011, Husband claims that he ceased paying his half of the mortgage because Wife began hording items in the home.[FN4] As a result of Husband's refusal to contribute, Wife paid the mortgage alone from 2011 till the mortgage loan was fully satisfied in 2013.

When determining the equities under a partition action, the Court may consider any disparity between the parties in the payment of a mortgage related to the property being partitioned. See Goldberg v. Goldberg, 173 AD2d 679 (2d Dept. 1991); See also Perez v. Fiore, 78 AD3d 1143 (2d Dept. 2010). Here, Wife claims that she should be entitled to a larger equitable share of the marital home on the basis that she paid the mortgage "alone" for a period of time. Wife further seeks a credit in the amount of $9,900 for a lump payment that she paid towards the mortgage in 2001.

Unlike the payments made by Husband in relation to the purchase of the home, this Court finds that Wife's contribution of $9,900 is not recoverable as a credit. Husband's payment of at least $44,625 towards the purchase of the home occurred before the parties were married, thus any funds that he used were necessarily "separate property" funds. However, when Wife paid the $9,900, she did so after the parties were married for approximately one year. Accordingly, it follows that the funds that she used were presumptively marital in nature. See Spathis v. Dulimof-Spathis, 103 AD3d 599 (1st Dept. 2013). Wife failed to trace the source of the funds that she utilized to make the $9,900 payment to separate property with sufficient particularity to rebut the presumption that they were marital in nature. See Phillips v. Haralick, 70 AD3d 663 (2d Dept. 2010); See also Massimi v. Massimi, 35 AD3d 400 (2d Dept. 2006).

The Court further finds that neither party shall be entitled to any credits in relation to the payment of the monthly mortgage. As indicated above, for the majority of the parties' marriage (2002-2010) they equally shared the responsibility to pay the mortgage bill. While both parties credibly testified as to periods of time when they paid the mortgage without contribution from the other spouse, their testimony ignores the concept that all of those payments were made with "marital" funds. See Ceravolo v. DeSantis, 125 AD3d 113 (3rd Dept. 2015); See also Patete v. Rodriquez, 109 AD3d 595 (2d Dept. 2013). Neither party established that they utilized separate property funds to pay their monthly mortgage obligation. Moreover, even if the Court were persuaded that the parties should be credited for the mortgage payments they made, it should be noted that each party paid the mortgage "alone" for an equivalent time period. (Wife from 2011 to 2013 and Husband from 2000 to 2002).

In addition to the above, Husband testified at length as to maintenance and repairs that he funded for the marital home. Husband indicated that various minor repairs were required throughout the time the parties cohabitated in the property, including but not limited to repeated [*6]repairs to the air conditioning system, painting, and the installation of wood flooring. While Husband could only offer approximate, and therefore speculative, repair expenditures, he credibly testified that he was the party who primarily contributed to the upkeep of the property.

During trial, and in their post-trial summations, both parties request that the marital home be placed on the market for sale. In addition, both parties request that they be granted "credits" towards the net proceeds from that sale representing their respective contributions to the purchase of the property, and for their respective payments towards the mortgage. Husband argues that he should be the party responsible for effectuating the sale as he has allegedly secured a broker who will list the house for a 3% commission.

Now, after considering the totality of the circumstances, including the credible testimony of Husband, and the documents he offered at trial, the Court finds that the marital home located on Challenger drive in Staten Island, New York, should be sold on the open market at a fair market price to be determined in accordance with the advice of a licensed real estate broker / agent. This listing price shall be periodically reduced in accordance with the recommendations of the real estate broker. This real estate broker shall be selected as follows. Husband shall select three real estate brokers who are willing to take the listing and present the same to Wife. Wife shall be entitled to select a broker from one of the three presented.

Once a broker is selected, Husband shall be the party primarily responsible for effectuating the sale, however he shall keep Wife informed of the process at all times. Moreover, Wife shall be authorized to speak with the broker directly regarding the sale. The house shall be placed on the market for sale within 30 days of the issuance of this Decision. The cost of any repairs deemed necessary for sale by the real estate broker, or a home inspector, shall be born equally by the parties.

When the house is sold, Husband shall be entitled to recoup certain expenses that he paid with separate property funds when the house was purchased. This amount, which was established through documentary evidence at trial, amounts to $44,625, and includes the return of an established down-payment in the sum of $40,276.[FN5] After Husband recoups the sum of $44,625 off the top of the net sale proceeds, the balance of the proceeds shall be split evenly (50%/50%) between the parties.

Jackson Annuity

The second asset addressed at trial was a "Jackson Annuity." This annuity was purchased by Husband for approximately $100,000 on April 29, 2015, without Wife's knowledge. Wife only learned of this annuity through subpoenas issued by her attorney during the discovery phase of this litigation. This annuity was purchased by Husband, and titled in his name only, approximately four months before the commencement date of this divorce action in August of 2015.

At trial, Husband attempted to establish that he utilized separate property funds to purchase the Jackson Annuity. As indicated above, Husband credibly testified that he was involved in a serious car accident in November of 1986. As a result of this accident, Husband sustained fractures in both of his legs and was confined to a hospital for approximately three months. Husband commenced a personal injury lawsuit in 1988. While Husband could not remember the details of the lawsuit, he credibly testified that he settled the same out of Court for approximately $250,000. After the payment of legal fees Husband claims that he received a net award of approximately $200,000. Husband credibly testified that he deposited the same in a bank account at Cross Island Savings Bank.

Wife could not offer any information regarding Husband's accident, and attempted to cast doubt on whether it ever actually happened. However, Wife admitted that she did not know Husband in November of 1986, and thus that she had no personal knowledge of whether he was involved in an accident, or received a personal injury award. After considering Husband's testimony regarding the nature of his accident, his injuries, and the resulting personal injury award, the Court credits the same.

Husband credibly testified that during the years since the award, and during the course of his marriage, he repeatedly transferred the balance of his personal injury award from one bank to another in order to capitalize on interest rates. Moreover, at certain times, Husband would split the balance of his award into two different bank accounts simultaneously. While Husband claimed that he never placed any of his personal injury money into a joint account with his Wife, he did admit that he frequently deposited money that he earned during the marriage into the accounts where his personal injury money was located. (Tr. 2/6/17 pg.40; 2/17/17 pgs. 28-29).

Domestic Relations Law §236(B)(1)(c) defines marital property as all property acquired during the marriage and before the commencement of a matrimonial action. See Mesholam v. Mesholam, 11 NY3d 24 (2008). Here, it is undisputed that the Jackson Annuity was purchased in April of 2015, approximately four months before the commencement of this divorce action. Accordingly, there is a statutory presumption that the annuity is marital property subject to equitable distribution. See Leva v. Leva, 2017 NY App. Div. Lexis 7776 (2d Dept. 2017); See also Nadasi v. Nadal-Nadasi, 60 N.Y.S. 3d 488 (2d Dept. 2017). At trial, it was Husband's burden to rebut this statutory presumption and prove that the annuity was funded by "separate property." See Lee v. Lee, 48 AD3d 377 (1st Dept. 2008).

Husband attempted to prove at trial that the Annuity was funded by his separate property personal injury award from 1998. However, Husband failed in his burden of adequately "tracing" those funds to his purchase of the Jackson Annuity. See Maddaloni v. Maddaloni, 142 AD3d 646 (2d Dept. 2016). Rather, Husband's testimony established that over the course of 15 years he commingled money that he earned during the marriage with the balance of his personal injury award. This commingling necessarily transmuted the separate property nature of those accounts into marital property, at least to some degree. See Scher v. Scher, 91 AD3d 842 (2d Dept. 2012). Accordingly, after considering Husband's credible testimony, and the arguments raised by both parties, the Court finds that Husband failed in his burden of establishing that the [*7]Jackson Annuity was funded wholly by separate property. See Matter of McNair v. Fenyn, 149 AD3d 747 (2d Dept. 2017). Accordingly, this Court finds that the Jackson Annuity is marital property subject to equitable distribution.

However, this does not end the Court's analysis, as equitable distribution does not necessarily mean equal distribution. See Lowe v. Lowe, 151 AD3d 956 (2d Dept. 2017). While this Court has found that Husband lacked the detailed documentation necessary to trace the source of the funds used to purchase the Jackson Annuity, and moreover that any separate property funds were comingled with marital funds, the Court does credit Husband's testimony that he utilized the balance of his personal injury award to purchase the annuity.

As established through Husband's credible testimony, and through documentary evidence offered at trial, Husband earned a limited amount of money during the course of this marriage as a self-employed livery driver. While Wife made much of his gross bank deposits, which in some years could exceed $100,000, Husband credibly testified that his business was heavy laden with operating expenses. For example, Husband testified that he was forced to buy a new luxury vehicle every three years, spent at least $22,000 a year on gas, and was constantly required to make repairs to his vehicle. In addition to these, and other, operating expenses Husband contracted with certain companies to obtain clients, resulting in a 20% to 30% commission paid back to the company. (Tr. 2/17/17 pgs. 13-23)

While Wife established that Husband may have exaggerated certain line item deductions on his taxes, the Court generally credits his testimony, and agrees with his argument that it would have been very difficult for him to have saved $100,000 during the course of this marriage using only his post expense earnings. Rather, the Court credits Husband's testimony that he utilized a portion of his separate property funds to purchase the Jackson Annuity.

Accordingly, after considering the factors set forth in DRL §236, and the unique circumstances of this case, the Court finds that the Jackson Annuity should be distributed 70% to Husband and 30% to Wife. See Balsamo v. Balsamo, 200 AD2d 649 (2d Dept. 1994); See also Siefried v. Siefried, 296 AD2d 398 (2d Dept. 2002). The Court finds that this award is equitable under the circumstances as it addresses Wife's right to a portion of a marital asset, while acknowledging the fact that she did not significantly contribute to that assets' creation. In this regard, Husband credibly testified that he funded the Annuity with approximately $80,000 from his "Capital One" bank account, and $20,000 from his "Apple Bank" account. (Tr. 1/20/17 pg.66-68). Husband credibly testified that Wife had never contributed any funds, or had any direct access, to either of these accounts during the marriage. Accordingly, Wife's entitlement to a 30% share of the annuity derives from the fact that Husband commingled an unquantifiable portion of his earnings during the marriage (marital funds) into his separate property funds.

Generally, it is the burden of a party seeking the distribution of an asset to establish a value for the same. See Shapiro v. Shapiro, 151 AD2d 559 (2d Dept. 1989); See also Michalek v. Michalek, 114 AD2d 655 (3rd Dept. 1985). At trial, Wife did not affirmatively offer a value for the Jackson Annuity. However, Husband testified on at least three occasions that he purchased the annuity for $100,000. A review of the record indicates that the only value for the [*8]Jackson Annuity that was substantiated by documentary evidence is the amount of $98,777, which was admitted by Husband as the current value of the annuity in his updated Statement of Net Worth dated May 24, 2016. (See Pl. Ex. 14, pg. 11). After consideration of the limited evidence offered at trial, this Court finds that the best approximation of what the Jackson Annuity was worth at the commencement of this action is Husband's testimony as to its initial purchase price. As Husband testified that he purchased the annuity for $100,000 four months prior to the commencement of this action, Wife shall be entitled to a 30% distribution of that amount. Accordingly, Wife is hereby entitled to a distributive award in the amount of $30,000.

The payment of this distributive award shall be addressed in conjunction with the distribution of the marital bank accounts below. (See "Bank Accounts").

Bank Accounts

Throughout this trial, both parties spent a considerable amount of time discussing marital bank accounts. However, much of the testimony and evidence that was submitted was unspecific as to time or value. Wife testified that she was unsure of how much money her Husband had at any specific period of time. Likewise, Husband's recollection of his Wife's bank accounts was incomplete at best.

Moreover, while Wife has consistently maintained that she was seeking a portion of her Husband's bank accounts, Husband changed his position regarding his Wife's accounts mid trial. On January 20, 2017 Husband testified that he intended on waiving any interest that he may have in his Wife's bank accounts. (Tr. 1/20/17 pg. 133). However, on the next trial date Husband reversed his position and claimed that he wanted his marital share. (Tr. 2/3/17 pg. 6).

Generally, a court has the discretion to determine the proper evaluation date of an asset, which can fall any time between the date of commencement and the date of trial. See DRL §236(B)(4)(b); See also Hughes v. Hughes, 79 AD3d 473 (1st Dept. 2010). After consideration of the circumstances, this Court has determined that the appropriate valuation date for the bank accounts at issue shall be the commencement date of this action. See Wegman v. Wegman, 123 AD2d 220 (2d Dept. 1986). This valuation date will account for the fact that both parties have both deposited and withdrawn from their respective accounts since the commencement of the action.

This action was commenced with the filing of a Summons and Complaint on August 19, 2015. At trial, neither party offered the exact value of the marital bank accounts on the date of commencement. Rather, both parties relied upon sworn statements of net worth that were filed shortly after commencement. Husband, in support of his claim, offered Wife's initial Statement of Net Worth as evidence to show that on October 14, 2015 she had a pair of accounts with HSBC bank with a combined balance $26,000. (See Def. Ex. D.). In support of her claim, Wife offered Husband's Statement of Net Worth from October 1, 2016 which indicates that he had a Capital One checking account containing $3,000 and a Chase account containing $2,000.

After consideration of a totality of the circumstances, including the evidence and testimony offered at trial, and after considering the equitable distribution factors set forth above, the Court finds that Husband's Capital One and Chase accounts should be distributed evenly between the parties. Likewise, the Court finds that Wife's HSBC bank account should be split evenly as well. See Michaelessi v. Michaelessi, 59 AD3d 688 (2d Dept. 2009).

Husband is entitled to a distributive award of $13,000(50% of $26,000) and Wife is entitled to a distributive award of $2,500 (50% of $5,000). Thus, when Wife's award is offset against the amount that she owes Husband, it results in a net distributive award of $10,500 payable from Wife to Husband. This award shall be offset again against the distributive award payable to Wife in relation to the "Jackson Annuity" (see above). When the bank account distributive award payable to Husband is deducted from the annuity distributive award payable to Wife, the resulting net award is $19,500 payable from Husband to Wife.[FN6]

This net distributive award in the amount of $19,500 shall be paid by Husband, to Wife, within 30 days of service of a Judgment of Divorce, encompassing the terms of this Decision after Trial. However, in the event that the sale of the marital home occurs before Husband pays the award, Wife shall be entitled to recoup her $19,500 directly from the net proceeds from the sale of the home, after Husband recoups his $44,625, but before the remaining proceeds are distributed evenly (50% / 50%).

Miscellaneous (Personalty/ Vehicles/ Time Share)

Neither party spent a significant amount of time addressing the issue of personal property at trial. However, both parties have indicated that they possess motor vehicles that they obtained during the marriage. The trial record supports a finding that Husband purchased a 2013 Lincoln MKS that currently has 95,000 miles on the odometer and that Wife purchased a 2004 Toyota Matrix.[FN7] Other than this basic information, no evidence was offered at trial as to the market value of these assets.[FN8] Moreover, while Wife attempted to establish that she obtained the 2004 Toyota as a gift from her parents, she presented no evidence to substantiate that claim. Therefore, after consideration of the factors set forth above, including a failure of proof by either party to establish the value of these vehicles, this Court finds that Husband shall be entitled to keep his 2013 Lincoln MKS and Wife shall be entitled to keep her 2004 Toyota Matrix, free and clear from claims by the other party.

In addition to marital vehicles, it was established during trial that the parties co-owned an Atlantic City timeshare. On the trial record of September 27, 2016, the parties stipulated that Husband would be entitled to surrender the same as a resolution of both parties' claims for equitable distribution of that asset. In so doing, the parties agreed that the asset had no value. (Tr. 9/27/16 pg.4). However, on a subsequent day of trial, Husband indicated that the surrender may, [*9]or may not, result in a $4,000 debt associated with unpaid maintenance charges. While the balance of the trial record is silent as to what occurred with the timeshare, the parties agreed that the issue of any maintenance liability would be addressed as part of this Decision. (Tr. 1/20/17 pgs. 98-100). Now, after considering a totality of the circumstances, including the factors indicated above, the Court finds that any liability resulting from the surrender of the timeshare shall be borne equally (50%/50%) between the parties.

Other than marital vehicles, neither party adequately addressed the issue of personalty such that this Court would be in a position to equitably distribute the same. Accordingly, both parties shall be entitled to keep whatever personalty they currently have in their possession, and any documents or items titled in their respective names. As to the balance of their personal property, the parties are hereby directed to confer with one another regarding the distribution of shared personalty. In the event that the parties cannot agree to a distribution of the same, they are hereby directed to sell the same in any way they deem appropriate, such as an estate sale. The proceeds of any such sale shall be split evenly between the parties. (50%/50%).

Counsel Fees

In her written Summation after Trial, Wife seeks an award of counsel fees incurred in relation to the entirety of this matrimonial action. Wife seeks the reimbursement of counsel fees to her attorney Galina Feldman, Esquire in the amount of $20,345, representing one half of the total amount she allegedly spent on this litigation ($40,690). Wife argues that Husband is the more monied spouse in this action, and that he has unnecessarily delayed the proceedings.

An award of reasonable counsel fees is a matter within the sound discretion of the trial court. The issue of counsel fees is controlled by the equities and circumstances of each particular case. See Nicodemus v. Nicodemus, 98 AD3d 605 (2d Dept. 2012); see also DRL §237(a). While DRL §237 permits consideration of many factors, paramount amongst these factors is financial need. See O'Halloran v. O'Halloran, 58 AD3d 704 (2d dept. 2009); See also, Silverman v. Silverman, 304 AD2d 41 (1st Dept. 2003). "An award of an attorney's fee will generally be warranted where there is a significant disparity in the financial circumstances of the parties". Cohen v. Cohen, 73 AD3d 832 (2d Dept. 2010). The purpose of DRL §237 is to "redress the economic disparity between the monied spouse and the non-monied spouse. See O'Shea v. O'Shea, 93 NY2d 187 (1999). Other factors to be considered include the relative merits of the parties' positions, and if either party engaged in conduct that resulted in a delay of the proceedings or unnecessary litigation. See Vitale v. Vitale, 112 AD3d 614 (2d Dept. 2013).

While Wife raises a claim for an award of counsel fees in her Summation, a review of the trial record indicates that the same arguments were never addressed during trial. Wife never testified as to a basis for counsel fees, or ever clearly indicated that she was seeking the same. Wife's attorneys' retainer agreement was not offered into evidence, nor were any legal bills. The only reference to counsel fees in the entirety of the trial record was on the last day, and was limited to one page of testimony. In sum and substance, Wife testified that she paid her attorney a retainer without indicating the amount, that she paid balances approximately every two weeks, and that she paid approximately $8,000 in fees between the years 2015 and 2016. (Tr. 3/27/17 pg. 60).

After a consideration of the trial record, this Court finds that Wife is not entitled to an award of counsel fees, as any award would be unsupported by the record. Generally, a final award of counsel fees (as opposed to a pendente lite award) must be fully addressed in an adversarial proceeding where the basis for the application can be litigated. See Rogers v. Rogers, 161 AD2d 766 (2d Dept. 1990); See also Gutin v. Gutin, 548 N.Y.S.2d 34 (2d Dept. 1989); McCauley v. Drumm, 217 AD2d 829 (3rd Dept. 1995). Here, Wife's brief reference to counsel fees was raised during re-cross examination on the Defendant's case, long after the Plaintiff had rested.[FN9] While Wife now offers evidence in support of her counsel fee application, including two legal bills, that evidence was not offered at trial, and thus is inappropriately being offered for the first time in summation. See Benson v. Behrman, 248 AD2d 153 (1st Dept. 1998); See also Matter of Roberts v. Borg, 83 AD3d 947 (2d Dept. 2011). Without evidence properly offered at trial, the request for counsel fees is unsupported by any factual basis upon which the court could calculate an appropriate award (if any). See Sivigny v. Sivigny, 653 N.Y.S.2d 328 (1st Dept. 1997).

Moreover, even if the Court were to entertain Wife's application, and consider the billing documentation offered for the first time in summation, that billing documentation is woefully inadequate to support a counsel fee award. Counsel fee applications must be supported by sufficient billing documentation not only for the Court to be able to analyze the legal work, but also to ensure compliance with 22 NYCRR 1400(2). See Montoya v. Montoya, 143 AD3d 865 (2d Dept. 2016). Here, the billing documentation offered by Wife's counsel consists of two bills. The first bill dated June 1, 2016 covers a period running from January 1, 2016 to August 12, 2016, a span of seven months. The second bill, which is undated, covers a period running from September 13, 2016 to August 29, 2017, a span of 11 months. These bills do not establish compliance with the 60 day billing requirement of 22 NYCRR 1400.2 and thus are insufficient to form the basis of a counsel fee application. See Wagman v. Wagman, 8 AD3d 263 (2d Dept. 2004); See also Gahagan v. Gahagan, 51 AD3d 863 (2d Dept. 2008); Vitale v. Vitale, 112 AD3d 614 (2d Dept. 2013).

Conclusion

For the detailed reasons set forth above, the marital home located on Challenger Drive, in Staten Island, New York, shall be placed on the market for sale. Once the property is sold, Husband will be entitled to recoup the sum of $44,625 from the net sale proceeds, before those proceeds are split evenly (50% / 50%) between the parties.

Wife shall be entitled to a distributive award in the amount of $30,000 representing her marital share of the "Jackson Annuity," however, that distributive award shall be offset by a $10,500 distributive award payable to Husband representing his one-half share of the marital bank accounts. After offsetting the distributive award payable to Husband from Wife's equitable share of the annuity, the result is a net distributive award payable from Husband to Wife in the amount of $19,500. This award shall be paid within 30 days of service of a Judgment of Divorce, encompassing the terms of this Decision after Trial. However, in the event that the sale [*10]of the marital home occurs before Husband pays the award, Wife shall be entitled to recoup $19,500 from the net proceeds from the sale of the home, after Husband recoups his $44,625, but before the remaining proceeds are distributed evenly.

Wife's application for an award of counsel fees is denied as that application in unsupported by the trial record and requested for the first time in summation. Moreover, the application is unsupported by adequate billing documentation.

Pursuant to the Inquest on the issue of grounds, Plaintiff Wife shall be granted a Judgment of Divorce on the ground that the parties' marriage had broken down irretrievably for a period of six months. See DRL §170(7).

Plaintiff Wife is hereby directed to file a Judgment of Divorce in accordance with the rulings of this Court, together with Findings of Fact and Conclusions of Law and all necessary supporting documentation, directly to chambers, within 30 days of the issuance of this Decision.

This constitutes the Decision of the Court after trial, in the event that an application was made during or before trial, and not specifically addressed herein, that application is hereby denied.

Dated: December 26, 2017

Hon. Catherine M. DiDomenico

Acting Justice Supreme Court Footnotes

Footnote 1:While Wife attempted to establish that Husband "wasted" money gambling in Atlantic City, the trial record supports a finding that both parties gambled, and that neither parties' losses were excessive.

Footnote 2:Husband testified that in November of 1986 he obtained the sum of $250,000 in a personal injury award after being involved in a motor vehicle accident. Husband testified that he netted the sum of $200,000 after attorney's fees and expenses. Wife claimed that she was totally unaware of the accident or the award.

Footnote 3:(Q) Check dated 4/11/00 $10,000; (R) Check dated 5/10/00 $188; (S) Check dated 5/11/00 $275; (T) Check dated 5/21/00 $29,346; (U) Check dated 6/22/00 $95; (V) Check dated 6/22/00 $83; (W) Check dated 6/22/00 $500; (X) Check dated 6/22/00 $638; (Y) Check dated 6/22/00 $3,500.

Footnote 4:Various pictures were offered into evidence at trial depicting the unkempt condition of the marital home.

Footnote 5:Pl. Ex T $29,346 plus Pl. Ex. X $638 plus Pl. Ex. Q $10,000

Footnote 6:$30,000 (annuity) less $10,500 (bank accounts)= $19,500.

Footnote 7:Odometer reading unknown.

Footnote 8:In her summation Wife offers a "Kelly Blue Book" value for the Lincoln MKS, however no such value was offered at trial.

Footnote 9:Plaintiff rested on the second day of trial. (Tr. 9/27/16 pg.101).