Bonnie B. v Michael B.

[*1] Bonnie B. v Michael B. 2004 NY Slip Op 51718(U) Decided on November 22, 2004 Supreme Court, Suffolk County Pines, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 22, 2004
Supreme Court, Suffolk County

BONNIE B., Plaintiff,

against

MICHAEL B., Defendant.



03661 - 2001



PLAINTIFF'S ATTORNEY

ROBERT L. WEINER, ESQ.

PHILLIPS WEINER & QUINN

101 NO. WELLWOOD AVENUE, SUITE 1

P.O. BOX 405

LINDENHURST, NEW YORK 11757

DEFENDANT'S ATTORNEY

JOSEPH M. BRETTSCHNEIDER, ESQ.

BRETTSCHNEIDER & BRETTSCHNEIDER

83 PROSPECT STREET

HUNTINGTON, NEW YORK 11743

Emily Pines, J.

DECISION AFTER TRIAL

This case presents several complex issues concerning the prohibition against use of the same income stream for more than one purpose as well as when it is appropriate to consider the tax impact when distributing an asset.

In this Action for a Divorce, the Plaintiff, Bonnie B. (Wife or Plaintiff) testified with [*2]regard to her entitlement to a Judgment of Divorce based upon the Defendant's unjustified and continued refusal to engage in marital relations with her for one year prior to the date of commencement of the Action. Defendant, Michael B. (Husband or Defendant) neither admitted nor denied the allegations on grounds for Divorce and joined in the Plaintiff's application. Accordingly, the Plaintiff is granted a Judgment of Divorce pursuant to the provisions of Domestic Relations Law §170 (2).

The parties stipulated during the trial that they would share legal custody of their one son under the age of eighteen, "D", born October 20, 1987; that the Plaintiff would be designated the residential custodial parent with final decision making authority, and that both parties would be consulted on all issues involving the health, education and/or welfare of the child. The parties have an older child, "B", born November 6, 1985, who is currently attending college as a full time student.

The issues remaining for trial involve the following: the classification, valuation, and equitable distribution of the parties' marital assets; child support to be paid the residential custodial parent, including her request for contribution toward college tuition, room and board for both children; the Plaintiff's request for maintenance; and the parties' applications for attorney's fees.

This case was tried before the Court for fourteen trial days and several days of oral argument by counsel, during which the Court heard the testimony of several witnesses, including both parties, experts, as well as friends, acquaintances and business associates. During the trial, the Court had the opportunity to consider the credibility of the witnesses, and to examine over one hundred and twenty exhibits admitted into evidence. The following is a summary of the evidence presented by each party.

PLAINTIFF'S CASE

Plaintiff's Testimony

Plaintiff testified that she and the Defendant were married on September 22, 1981 and that the Action was commenced on March 2, 2001. During the marriage, they had two sons, the older of whom is now attending his sophomore year at the Agricultural School of Cornell University. The younger son is now in his senior year of high school. Both children reside with the Plaintiff in a two bedroom apartment in Melville, during the periods when the older son is not attending college. Plaintiff obtained her Bachelor of Arts Degree in Fine Art in 1979, and asserts that she was at all times the major care giver to the parties' two sons. She has had a number of jobs during the marriage in the fashion and textile design fields, as well [*3]as her own jewelry design business, which she started and ran for several years with a friend.

Plaintiff describes her employment history commencing with a job at the time of marriage as a fashion coordinator for an annual salary of $13,000.00. Thereafter, she worked for Burlington Industries as a textile designer for five years, with a final annual income of approximately $45,000.00. She left that job in 1986 after the birth of her first son, in what she describes as a joint decision by her and the Defendant. In 1989, Plaintiff rejoined the workforce, as an interior designer in various part-time positions. In 1991, Plaintiff began working on a part-time basis for Montage Textiles, owned by a friend of the family, as a liaison between customers and fabric mills. She claims that she worked there until some time in 1999, when she was earning about $150.00 per day, working three days per week. According to Plaintiff, she left Montage because there was less and less work for her to do. Thereafter, she asserts that she attempted to obtain further employment in her field, but that the need for her particular specialty in textile interior design had essentially disappeared. She obtained a part-time position as a saleswoman at Bloomingdale's, where she is presently employed. Plaintiff currently works twenty hours per week at $9.50 per hour. In addition, she earns a commission of between $100.00 to $200.00 per month. She also works several hours per week at a jewelry concession for $10.00 per hour. Plaintiff contends that she has requested a full time position a t Bloomingdales but that none is available as of yet. In addition to the above, the Plaintiff testified that she was offered an interior design position by the Holiday Organization, which owns The Hamlet housing complexes, in the Spring of 2000. However, she alleges that after she accepted the position, they gave the job to one of their other employees.

In June of 1999, the Plaintiff commenced a jewelry design business with a friend. She states she and her friend designed and sold bracelets, necklaces and belts. The items were sold by her and her friend to individuals, at house parties, at charity events, and to several stores. Plaintiff states that on average, she worked two days per week at this business. It is the Plaintiff's contention that she closed the jewelry business during the Divorce proceeding because her partner was unwilling to undergo the alleged abusive tactics utilized by the Defendant to obtain information on the real expenses and profits of the business. However, documents in evidence demonstrate, for example, sales receipts from this business between November 2000 and July 2001 of $5,869.00 (Defendant's E); between October and December 2002 of $3,121.00 (Defendant's F); between September and November of 2000 of $3,238.00 (Defendant's G); between December 2002 and July 2003 of $7,447.00 (Defendant's I); between July and September of 2002 of $8,374.00 (Defendant's C). The Plaintiff's Statement of Net Worth (Defendant's L) does not list the jewelry business. Plaintiff lists as her gross receipts from jewelry sales as $2,822.00 in 2001 (Plaintiff's 33) and in 2002 as $5,401.00 (Plaintiff's 34). [*4]

Plaintiff describes her lifestyle during her marriage to the Defendant as an affluent one, during which the parties took expensive vacations, drove expensive automobiles, sent their children to sleep away camp, expended $40,000.00 each on Bar Mitzvahs for their sons, and had household help as well as various care givers for the children, when the Plaintiff worked. She claims that she was generally responsible for the children and the household, and that the Defendant was always the major breadwinner. Since the Defendant was a financial advisor, Plaintiff asserts that she allowed him to have total control over the parties' finances, and that he rarely, if ever, consulted her on their various savings and investments. However, Plaintiff alleges that she did help the Defendant with his investment clients, early in the marriage, by doing some of Defendant's filing, by acting as hostess and by obtaining clientele for the Defendant. These included her friends, members of Plaintiff's family, and friends of her parents. She states that she once requested that Defendant include her in his decision making on their various investments and that he declined.

In her rebuttal testimony, Plaintiff described the Defendant's securities' trading practices with the parties' personal finances, as "gambling". While she admits that she was aware that she had signed documents authorizing the Defendant to trade on margin, the parties' accounts (Defendant's R and Defendant' s S) some of which were initially in her name, she claims that all the real decision making concerning the specific investments, what and when to trade on margin, and when to trade, were solely the province of the Defendant.

However, the Plaintiff did sign authorizations in early 2000 transferring her two Paine Weber accounts from her name to joint accounts in her and the Defendant's names (Defendant's T). At the time of the commencement of the Divorce Action, there was a debit of $231,368.20 on the joint Paine Weber Accounts (Defendant's U). Plaintiff blames the Defendant for the debit, which ultimately resulted in a tax liability to the Defendant, who was forced to sell an IRA in order to repay the debt in 2002. This argument is based on her assertion that the Defendant handled all the parties' finances without input or advice from her. Plaintiff believes she is entitled to her equitable share of all of the Defendant's deferred accounts including the one which he liquidated to pay the tax debt in 2002. Moreover, she asserts that she is entitled, based on the long term marriage and her dedicated participation both directly and indirectly in the Defendant's career, to equitable distribution of the net proceeds of the former marital residence, described below.

Plaintiff claims that in November, 2002, the Defendant stopped paying the mortgage on the parties' marital residence, ultimately forcing it into foreclosure. To avoid a financial loss, the parties agreed to the sale of the marital residence, pendente lite, resulting in net proceeds of $522,000.00, the bulk of which are currently being held in the escrow account of Plaintiff's counsel, subject to equitable distribution. Although the parties were able to [*5]resolve their differences concerning payment of pendente lite arrears, including child support and maintenance, through an income deduction order, the Plaintiff believes that the Defendant caused marital waste, in general, based on his unwise investment practices.

With regard to her current expenses, the Plaintiff claims she meets them by receiving funds from three sources: her income, Defendant's pendente lite monthly payments of $1776, and loans from her parents, which she alleges now are in excess of $40,000. Plaintiff has no writings evidencing such loans from her family. Plaintiff's current rent is $2737 and the other expenses on her trial Statement of Net Worth (Plaintiff's 39) come to a total of more than $5500. With regard to debt, the Plaintiff testified that the parties jointly paid off an MBNA credit card after the Defendant negotiated a settlement with the credit cad company. In addition, she states that at the time of commencement of the action, she had a debt to Bloomingdale's for clothing of $5000 (Plaintiff's 39). When asked about the Defendant's current tax liability incurred when he withdrew monies from an IRA to pay the deficit on the parties' joint margin accounts at Paine Weber, the Plaintiff asserts that such debt belonged solely to the Defendant since he was responsible for incurring the debt in the first place. She states that she has no credit cards at this time.

With regard to the older son's decision to attend Cornell University, the Plaintiff asserts that the Defendant was involved with her, the son, a guidance counselor and two college consultants in making the final decision. She claims that the son receives approximately $19,000.00 in combined scholarships and loans from the University out of tuition, room and board fees of approximately $27,000.00 (Plaintiff's 35 and Plaintiff's 36). For the first year of college, the Plaintiff states that she has paid a total of $8,500.00 and has received reimbursement from the Defendant for only $1,500.00. She claims that the Defendant has agreed that he would pay for fifty(50%) percent of the parties' expenses for Cornell or one hundred (100%) percent of the expenses for a SUNY school.

Testimony of Morton Cohen

Morton Cohen, CPA, testified as an expert witness, on behalf of the Plaintiff, with regard to the value of the Defendant's enhanced earnings, as a result of Defendant's various licenses allowing him to trade securities, and the value of another marital asset, resulting from his signing on bonus from Paine Weber, described by the expert as the Defendant's "book of business" His report was admitted into evidence as Plaintiff's 50.

Following a review of the Defendant's income tax returns for the period from 1993 through 2000 and his W-2's for 2000 and 2001, a review of Defendant's EBT testimony, and Defendant's responses to a questionnaire, Mr. Cohen asserts that he considered two income streams. The first one included the signing on bonus , given to the Defendant for bringing [*6]his "book of business" to Paine Weber. This, he valued at its actual cost to the employer. The other income stream was composed of the earnings attributable to the Defendant as a broker compared with earnings he presumably would have been able to achieve in the position of a product marketing manager, without such licenses. Utilizing a market place rate of return, Plaintiff's expert asserts that the Defendant's enhanced earnings as a result of his various trading licenses, amounts to $517,330.00. He reaches that number, utilizing the "discounted future earnings method", by comparing the Defendant's net income as a stockbroker (set by the expert at $311,806.00) with that of a product marketing manager (utilizing a gross income figure of $101,483.00); finding a differential of $122,342.00, and converting the differential into enhanced earning capacity by carrying it forward until the Defendant reaches 66 years (presumed retirement) using a risk adjusted rate of return of twenty one (21%) percent. He states that he prefers this value over and above the alternative value of $1,794,964.00 in enhanced earnings, which would result from utilizing a risk free three (3%) percent rate of return, arguing that his preferred rate is based more closely on actual returns than the use of the risk free rate.

According to Mr. Cohen, the $249,794.00, the value of Defendant's Employee Forgivable Loan or "book of business" and the $517,330.00 represent different income streams and should both be considered part of the marital estate for purposes of equitable distribution. He argues that his methodology does not result in any "double dipping", or utilization of the same income stream for two purposes, since the signing on bonus represents the value to the brokerage firm of five years of its portion of the broker's commissions and not any portion of the earnings the expert took into consideration in his comparison to the product marketing manager. Moreover, the Plaintiff's expert, in determining the Defendant's gross income, for purposes of the calculation, utilized his gross income over a period of several years, deducting the amounts attributable to the EFL over the five years it was actually set forth as part of the Defendant's gross income.

Although Mr. Cohen stated that he was unaware that the Defendant obtained his first trading license (the Series 52) shortly before the marriage, he concluded that it was, in any case, insignificant, since it was an "obscure license" and that the major trading license (the Series 7) as well as Defendant's many other "Series" licenses were all earned during the marriage.

Under cross examination, the Plaintiff's expert stated that he did not give any consideration to the fact that the Defendant has now had nineteen years of experience, in his stated value of the gross income for the product marketing manager. He admitted that if the Defendant, hypothetically, were able to sell his "book of business"; i.e., his client base, to a willing buyer, that his enhanced earning capacity from his various licenses, in that instance, would be "zero".

DEFENDANT'S CASE

While Defendant essentially supports the Plaintiff's testimony with regard to the parties' dates of marriage, the ages of their children; and the parties' current employment, the similarities end there. According to the Defendant, he has worked hard his entire adult life, mostly as a financial advisor; he has encouraged his wife to utilize her skills to obtain more lucrative employment; she has failed and/or refused to do so; she has insisted that the parties live above their means, and he has never made enough money to pay all of their expenses.

Defendant states that he is 47 years old and in good health. He graduated in 1978 from George Washington University, with a Bachelor of Arts Degree in Sociology with a minor in business.

Defendant sets forth that he was a products manager at the time of the marriage in September, 1981, but that he had already received his "Series 52" license, which allowed him to trade in municipal securities. In addition, the first year of marriage, he worked part-time, as a trader for David Lerner and Associates. Defendant's 1981 tax return does reflect over $3,000.00 in gross sales income from David Lerner in the year of marriage. He asserts further that he began working full time for David Lerner in 1982. Thereafter, in 1988, the Defendant went to Smith Barney, where he was employed until 1996. In that year, Defendant left Smith Barney to work for Paine Weber (Now "UBS"). He confirms that he received a signing on bonus from Paine Weber, which has been described in the testimony of the financial experts as the Employee Forgivable Loan ("EFL"). Defendant testified that the EFL of $249,794.00 was forgiven over a period of five years (Plaintiff's 61), so that he is no longer reporting it as income on his tax returns as of the date of trial. Defendant also received a second EFL from Paine Weber in 1997, for slightly over $60,000.00 (Plaintiff's 62); however, that EFL has also been fully forgiven. He states that his gross income for the past several years is as follows: 1995, $201,653.94; 1996, (missing); 1997, $251,924.49; 1998, $312,613.03; 1999, $370,129.42; 2000, $434,637.34; 2001, $389,568.28; 2002, $298,868.23; 2003, $268,472.84.

In 2003, Defendant's income was, as set forth, over $268,000.00, without either EFL. However, he testified that he did receive certain bonuses that year, including a "retention bonus", which he claims is a non-recurring event. Defendant states that although he and the Plaintiff shared their household responsibilities, that she raised the children in the earlier years, and that she had little to no direct input in his career. He obtained four "Series" licenses during the marriage (Plaintiff's 51) but alleges that the Plaintiff provided him no assistance in obtaining them. He denies that the Plaintiff participated in any meaningful way in his work, and that to the extent that he has been a success in his field, it is due to his hard [*7]work as a financial advisor.

Moreover, the Defendant asserts that although he tried to encourage the Plaintiff to do something with her design and artistic talent, that she turned down several lucrative positions. He states that her decision to leave Montage Textiles, where she was working until the late 1990s was her own and not, as she stated, due to some change in the industry. He claims, in addition, that the Defendant also deliberately turned down the offer from the Holiday Organization, because she did not want to work. He believes that she has secreted what she earned in her private jewelry business, by having all the monies deposited in her friend's account; and, he believes, further, that the Defendant is deliberately underemployed as a part-time salesperson at Bloomingdale's in order to make a claim for maintenance in this case.

With regard to the parties' lifestyle, the Defendant describes the following scenario: "We were always robbing Peter to pay Paul". It is his claim that the parties purchased a home they could ill afford; that they spent profligately on the Bar Mitzvah's for their two sons; that they could never save money mostly due to the Defendant's refusal to obtain full time gainful employment. In this vein, the Defendant alleges that he was kept out of the college search process until the last minute and that the decision of his older son not to attend an honors program at one of the State Universities was at his wife's prodding, and that he should not now be saddled with the entire expense as a result.

While the Defendant admits that he was in charge of the parties' investments and finances, in general, he asserts that the Plaintiff understood them all and discussed them with him . He claims she understood because he complained constantly, that the parties were simply unable to pay their bills and that this situation became worse with a downturn of the investment market .

Defendant testified that the parties opened two investment accounts in the Plaintiff's name in 1996 and in 1999; and that the Plaintiff in both cases signed a Power of Attorney, authorizing the Defendant to trade on margin in these accounts (Defendant' R and S). He alleges that the reason he started to trade these accounts on margin, in the late 1990s, was due to a decrease in his actual income when he moved from Smith Barney to Paine Weber. He explains that when securities are purchased on margin and the market declines, the investor is required to pay for the loss to replace it He alleges that in February 2000, the parties met together with two officers from Paine Weber to discuss these accounts. He testified that at that time, both accounts were transferred from the Plaintiff's name to the parties' joint names; that both parties were told at this meeting that these were margin accounts and that they contained a large debit . Both parties signed a letter at that time acknowledging the transfer (Defendant's T). According to the Defendant, the parties discussed these accounts often; that [*8]the Defendant's mother had exercised a "Guaranty Agreement" backing up any loss on these accounts, and the Plaintiff was aware of Defendant's mother's role.

Defendant asserts that he incurred a tax liability of $73,438.00 (Federal) and $9,073.00 (NYS) ($82,511.00 total) as a result of a shortfall in these margin accounts. In mid 2002, the Defendant states that he received a margin call, which required the parties to pay the entire debit on these accounts. After liquidating the accounts, there remained a shortfall. He asserts that he did not want his mother, who is of limited means, to be left making up the shortfall, so he first asked the Defendant to refinance the mortgage on the marital residence. When she refused, he claims he was forced to cash in one of his IRA"s ($174,000.00) to pay the shortfall. As a result, he suffered the above stated tax liability. Although Defendant asked the Plaintiff to file a joint tax return for 2002 in order that the parties share this burden, he alleges that she refused. It is the Defendant's position that this is a joint debt. In addition, the Defendant testified that at the time of commencement of the action, the parties had several credit card debts, including the MBNA debt, which was resolved; a Discover Card debt, in the amount of $14,105.41 as of September 2001, (Defendant's Nn); and a Chase Manhattan credit card balance of $4,399.78 as of April, 2001. (Defendant's Oo). The $14,105.41 Discover Card debt existed, as per Defendant's testimony back in March, 2001; but at that time it was part of the MBNA debt and the Defendant transferred it to the new credit card as part of his settlement of the MBNA debt. Defendant believes all of this debt is marital in nature and, therefore, should be shared evenly between the parties.

With regard to living expenses, the Defendant states that after payment of his own basic living expenses for rent, utilities , food and clothing, he is unable to continue to pay the pendente lite level of child support and maintenance at the monthly rate of $1,776.00. He alleges that in February, 2002, as an example, he received net pay of $15,249.00 and had expense, for himself, child support, and maintenance of $16,742.00 without any profligate spending on his own behalf. In this vein, the Defendant asserts that he has no furniture from the former marital residence, that he needs basic things such as a dining room table and bedroom set, and that he is basically living from paycheck to paycheck as a result of the garnishment of his salary. On the other hand, his current cash flow situation has improved since he is no longer paying the mortgage on the marital residence, and, with Plaintiff's agreement, he has negotiated and paid off one of the parties' credit card debts. It is the Defendant's claim that the Plaintiff, and not he, is really responsible for his having to invade the $174,000.00 IRA and the resultant tax liability. According to Defendant, he tried on several occasions in 2000, 2001 and 2002, to convince the Plaintiff to let him refinance the mortgage on the marital residence, which was at the inflated rate of nine 9% percent when the parties sold the house. He asserts that would have given the parties enough money both pay off the debit on their account and would have saved the IRA. For both these reasons, he [*9]believes it is unfair now to accuse him of waste and/or to include in the parties' assets the $174,000.00 which was expended to pay off a debt owed, at the very least, by both parties.

Joel Rakower's Testimony

Defendant presented the testimony of Joel Rakower, CPA, on the issue of whether the Plaintiff's expert engaged in "double dipping", i.e., utilizing the same income stream for two separate values, in computing the value of the Defendant's enhanced earnings and the value of the Defendant's "book of business". Mr. Rakower's report was admitted into evidence as Plaintiff's 52.

The Defendant's expert answered this question in the affirmative, stating that the value of the Defendant's goodwill is , as Mr, Cohen stated, the value of the Defendant's "book of business". Once that goodwill is valued, it cannot be considered for the purpose of determining the Defendant's enhanced earnings as a result of his licenses. He opines that the value of the Defendant's goodwill and his enhanced earnings capacity both come from the same income source; i.e., the Defendant's client base. The methodology utilized by Plaintiff's expert, according to Mr. Rakower, results in valuing the Defendant's income derived from his client base twice. Moreover, he agrees that without the "book of business" or client base, the Defendant would expect a very low income of approximately $40,000.00. That is, according to Defendant's expert, the most that can be considered for purposes of maintenance.

Mr. Rakower characterized Mr. Cohen's failure to consider that one of Defendant's license was acquired before the marriage as "a fatal flaw".

In addition, Mr. Rakower testified that Mr. Cohen failed to tax impact the value of Defendant's "book of business", which he should have done, since the Defendant was required to pay taxes on the $249,794.00 received from Paine Weber.

Testimony of Ellen G. and Mitchell M.

Ellen G., an employee of the Holiday Organization, testified that she interviewed the Plaintiff for her employer, with regard to a position as an interior design coordinator. She asserts that she did offer the Plaintiff a position, with the Holiday Organization, based on her qualifications to work with potential home buyers regarding various upgrades within the [*10]Hamlet units. She wanted someone who was both creative and had an ability to sell. She testified further that someone in this position had the ability to earn approximately $75,000.00 in commissions. Ms. G. testified that she ultimately hired another person who already worked for the Holiday organization; but stated that the Plaintiff wanted too many days off for family related items for someone starting a new position.

Mitchell M. testified that the Plaintiff worked for him, as a textile design coordinator from 1991 until 1998 or 1999. He asserts that his business still exists and has grown since the Plaintiff left. He alleges that he never told her there was not enough work for her to do and that she stopped working simply because she no longer wanted to work. He also states that someone with her experience would be earning over $65,000.00 per year at this juncture. However, he never paid her this amount nor has he ever offered her a job for that income. He also testified that he has known the Defendant for thirty years.

Testimony of Edward C. and Linda R.

Edward C. who is corporate Vice President and branch manager for the Melville branch of UBS, testified that he is in charge of hiring of all financial advisors. He states that he would not hire a financial advisor without a client base and that trainees start an annual salary of $36,000.00.

Mr. C. further states that the income of brokers, in general, has declined in recent years, due market instability, an aging population, and competition in the industry from the rise in number of discount brokers. However, he could not state whether the Defendant's asset base had increased or decreased since he was hired in 1996.

Linda R., a compliance officer for UBS in the Melville branch, testified under subpoena. She states that she received a telephone call from the Plaintiff in early 2000, when the Plaintiff raised some questions about her two accounts and stated that she wanted to meet to discuss the transfer of these accounts from her name to both her and the Defendant's names. The witness claims she had two meetings with the Plaintiff in February, 2000, and that she offered to allow the Plaintiff at the first meeting, to revoke the Power of Attorney she had signed allowing the Defendant to trade on margin. She states the Plaintiff declined the offer. At the second meeting, she testified that the parties both signed authorizations, allowing the transfer of the two accounts to joint names (Defendant's T).

VALUATION OF MARITAL ASSETS[*11]

The parties agreed post trial that approximately $512,940.55 remains in the escrow account for purposes of equitable distribution (see Defendant's Post trial Memorandum). In addition, attorneys for both parties stipulated that they would either agree or provide the Court with post trial submissions setting forth the value of the Defendant's myriad deferred compensation accounts to aid the Court in fashioning a distributive award. The Defendant submitted a post trial Memorandum, which set forth his claims concerning the marital funds in each of these accounts, earned during the parties' marriage. The attorney for the Defendant classified as marital assets the amounts contained in each of these accounts as set forth below and argued that each should be tax impacted. At trial Defendant testified that each account should be impacted at the forty (40%) percent tax base. Plaintiff does not contradict the values set forth by Defendant and agrees that these assets are marital, but argues that they should not be subjected to tax impacting. In certain cases the amounts given by Defendant were as of commencement of the action and others were closer to the date of trial. The Court received no evidence to contradict these asserted values; finds them based on the evidence submitted; and accepts them to the extent, set forth below.

The Defendant held a Putnam Health Sciences Pension Plan in the amount of $13,383.85 (Plaintiff's 74) with a 40% tax impacted value of $8,030.00 and a Putnam Voyager Pension Plan in the amount of $14,515.84 (Plaintiff's 74) with a tax impacted value of $8709.50. He held an Oppenheimer Global Pension Trust in the amount of $17,434.66 (Plaintiffs 71A) with a tax impacted value of $10,460.80, and an Oppenheimer Main Street Fund Class A in the amount of $8722.29 (Plaintiff 73) and a tax impacted value of $5,233.37. The above values, all approximately as of the date of trial, were the only values given to the Court.

In addition to the above, Defendant held, as of commencement of the action, a UBS Paine Weber 401 (k) account in the amount of $95,766.67, which increased to $171,451.07 as of the date of trial (Plaintiff's 73) and had a commencement date tax impacted value of $57,460.00.

Defendant also held, as of December 2003, a Franklin U.S. Government Securities Fund with the only value given as $1,645.77 (Plaintiff's 72).

As of commencement, Defendant held an IRA (account No. XXXX017) with a value of $38,106.69 (Plaintiff's 70), a trial value of $104,082.62; and a tax impacted commencement value of $22,864.01. He argues that post commencement contributions are his separate property. Defendant also held a Citibank tax shelter as of trial in the amount of $18525.80 (Plaintiff's 76 and 78) with a tax impacted value of $11,115.48.

Defendant also asserts in his post trial submission that he held assets in his Partner Plus account with an already tax impacted value of $28,371.07 (Plaintiff's 69A and Defendant's KKK); that he held shares of common stock with a tax impacted marital value of $8244,09; and that he held not yet exercised stock options, acquired during the marriage for future work with a tax impacted marital value under DeJesus v. DeJesus, 665 N.Y2d 36) of $42,939.93.

The total of these assets, which the Court accepts as concededly marital, amount to [*12]$205,074.02. In arriving at this figure, the Court accepts the tax rate testified to by Defendant at trial of 40% and utilizes the commencement values where they are provided. In so doing, the Court accepts Defendant's argument that increases in these assets post commencement are attributable to either market forces or the Defendant's direct contributions. However, where the only evidence presented of these accounts is as of the date of trial, the Court adopts those figures based on the statement of Defendant's counsel in the post trial Memorandum that they constitute marital assets. In addition, in arriving at this figure, the Court adopts Defendant's argument that his deferred compensation must be tax impacted for purposes of equitable distribution because the Defendant will be required to pay taxes on these funds when they are distributed to him. To do otherwise would result in a windfall to the Plaintiff. See, Hartog v. Hartog; 94 AD2d 286

When the figure set forth ($205,074.02) is added to the amount in the escrow account from the sale of the marital residence($512,940.55), the total amounts to $718,014.57. This figure does not yet include any amount for "enhanced earnings" from Defendant's trading licenses and/or the value of Defendant's "book of business", nor does it include another marital deferred compensation account in the amount of approximately $174,000.00 which, as described below, was invaded by the Defendant for tax liability. These items are discussed more fully below.

EQUITABLE DISTRIBUTION

Domestic Relations Law §236(B) requires that the Court, in a matrimonial action, first, classify the parties' property as separate and/or marital; second, value the marital property, and third; distribute, in accordance with the criteria set forth under DRL § 236 B(5)(d), all marital assets in an equitable manner.

Classification

The legislature has adopted a broad definition of the term "marital" property, allowing it to include "all property acquired by either or both spouses during the marriage . . . regardless of the form in which title is held." DRL §236(B)(1)(c). This definition has been described by our appellate courts as the legislative recognition, upon adoption of the equitable distribution law, that marriage is an economic partnership. "Price v. Price, 69 NY2d 8; Majauskas v. Majauskas, 61 NY2d 481; McKinney's Session Laws of NY , 1980, p.1863.

Both assets valued in the case at Bar, have been considered part of the economic partnership, since they have been acquired by one of the spouses during the course of the marriage. The Court of Appeals in the seminal case of O'Brien v. O'Brien, 66 NY2d 576, held that a license to practice medicine, attained during a marriage, constitutes a marital asset subject to equitable distribution. Essentially, where the professional license, in that [*13]case, resulted from the joint efforts of both parties, both direct and indirect, the potential earnings from such license, were to be considered by the Court in dividing the financial partnership. The O'Brien ruling has been expanded to cover both career earning potential and licenses other than professional ones. Thus, in Hougie v. Hougie, 261 AD2d 161, the Appellate Division, First Department, held that a "Series 7" securities license, obtained by the husband during the marriage and an item necessary to trade securities in the United States, must be taken into account in determining that spouse's enhanced earning capacity.

In this case, the Court adopts the position of the Plaintiff's expert that the bulk of the Defendant's Series licenses were earned during the marriage; that they constitute marital property to be valued and that the "Series 52" license, earned by Defendant in the months prior to marriage, is extremely limited and indeed has now been subsumed by the "Series 7" license, which was clearly earned by Defendant post marriage.

With regard to the Defendant's "book of business", the Court finds that also to constitute a marital asset subject to equitable distribution. In Moll v. Moll, 187 Misc 2d 770, Justice Lunn (Sup. Ct. Monroe Co), held that a husband's career as a stockbroker and financial advisor carried with it "significant goodwill in the form of his 'book of business' ". Ruling that the "book of business" was a marital asset to be valued for equitable distribution purposes, the Court reasoned that the client base was a career advantage possessed by and inseparable from the defendant in that case. In this case, the Defendant does not argue against the Court considering the "book of business" as a marital asset; but, rather , asserts that it is valued by consideration of the same income stream as the enhanced earnings from the licenses and that it should be tax impacted. These issues will be treated below.

Based on the above, the Court classifies both the Defendant's enhanced earnings capacity and his "book of business" constitute marital property. However, the manner in which such assets are valued, including the issue of "double dipping", is set forth below.

Valuation

As stated, the Court adopts the value of the parties' assets from the sale of their home and in Defendant's deferred compensation accounts provided to the Court in Defendant's post trial submissions. The Court is utilizing the date of commencement where available for the accounts since the Defendant's uncontradicted testimony was to the effect that the Plaintiff has made little contribution to those accounts since the commencement date and that most increases are due to the Defendant's deposits and market forces. Those assets total $718,014.57. Where the only evidence presented was a trial value, the Court has utilized that [*14]value since Defendant's post trial submission adopts such amounts as marital.

With regard to Defendant's licenses and "book of business", the Court of Appeals , in McSparron v. McSparron, 87 NY2d 275 and in Grunfeld v. Grunfeld, 94 NY2d 696, has enunciated the principle that a court, in distributing marital assets, must guard against distribution for more than one purpose, of the same income stream derived from the identical source. This prohibition is applicable when considering the income stream derived from an advanced degree or license for purposes of evaluating enhanced earnings and maintenance . Most recently, The Court of Appeals rejected consideration of the "double dipping" prohibition when determining the amount of child support to be paid by the monied spouse under DRL §240 (1-b), known as the Child Support Standards Act. see, Holterman v. Holterman, 2004 WL 1263742.

In this case, Defendant's expert witness argues persuasively that Defendant's enhanced earnings from his various trading licenses derive from consideration of the same income stream that is utilized to value his "book of business"; that being his client base. Indeed, both experts stated, in one form or another at trial, that Defendant's earnings, which have admittedly been quite high over the past nine years, would be far lower if he did not have his obviously loyal client base, which evidently followed him from Smith Barney to Paine Weber. Accordingly, in order to avoid the proscription against "double dipping" this Court adopts the value of Defendant's "book of business"; i.e., $249,794.00 as a marital asset to be divided. Once done; however, the Court declines to distribute Defendant's "enhanced earnings" from his trading licenses, since it is persuaded that they do not exist without his client base, already valued.

On the other hand, the Court rejects the part of Mr. Rakower's testimony that suggests that the Court tax impact the "book of business" before distributing a portion of its value to the plaintiff. Mr. Rakower bases his argument on the court's decision in Hartog v. Hartog, 194 AD2d 286, which required the trial court to consider the tax consequence on the titled spouse, who was required to sell certain assets in order to pay a distributive award. The Court has no such intention in the case at Bar. The distribution to the Plaintiff of a portion of the value of the Defendant's "book of business" will not requite the Defendant to pay any taxes and, accordingly, it would be unfair to charge the Plaintiff with such a burden. Based on all of the above, the total marital assets to be distributed amount to $967,808.57 ($718,014.57 + $249,794.00).

Equitable Distribution

Having determined the value of the marital assets as set forth above, the Court next [*15]considers the following factors in arriving at an equitable distribution of the marital estate. The parties are both in their mid-forties and, by their own admissions, in good health. Both parties received their college degrees prior to the marriage and entered into the long term marriage with little or no assets. The Defendant did obtain a "Series 52" license several months prior to marriage, but it only allowed him to trade in municipal securities and he did not really commence his career as a stockbroker and financial advisor until following the marriage to Plaintiff.

During the parties' marriage, they took on fairly traditional roles, with the Plaintiff acting as the major care giver to the parties' two sons and the Defendant as the major income earner. While the Plaintiff had several career opportunities during marriage in the textile design field, she repeatedly opted out of launching a full blown career in favor of remaining available for her sons' needs. That continues even as the boys have reached their older teenage years. While the Defendant complains that Plaintiff never made enough money to help support their lifestyle, he remained married to her for many years in that situation. The Court also finds that while the Defendant worked extremely hard in developing his business and attracting clients in able to become a large income earner, the Plaintiff made indirect contributions to Defendant's career by caring for the home and children. On the other hand, the Court found more credible that portion of the Defendant's testimony which indicated that the Plaintiff made no direct contributions to his career and that her testimony stating that she helped him with seminars and in obtaining clients was exaggerated.

At the date of marriage, the Plaintiff was earning approximately $13,000.00 per year as a fashion coordinator and the Defendant was earning in the low $20,000.00's as a product marketing manager. However, by the time of the Divorce, the Plaintiff's income was set forth as between $7,000.00 and $10,000.00 (Plaintiff's 33 and Plaintiff's 35); whereas the Defendant's income was in the range of $268,000.00 to $298,000.00 (Plaintiff's 29 and Plaintiff's 30). Even accepting the claim by Defendant that the Plaintiff was secreting some of her income from her jewelry business at the time of the Divorce, her income was still under $25,000.00, far lower than that of the Defendant. She simply does not have anywhere near the future earning capacity of the Defendant, even if she were to launch herself into a full time career today in the textile design field. For this reason, as set forth below, it is the Court's intent to award the Plaintiff durational permanent maintenance.

The parties lifestyle during the marriage required a substantial income. The Court found credible the Plaintiff's claim that the parties lived well, took expensive vacations; had an expensive home; and drove expensive automobiles.

With regard to the issue of marital waste, about which there was much testimony, the Court finds specifically that the parties are equally responsible for the tax loss suffered when [*16]Defendant invaded one of his IRA's to cover a debit in the parties' joint accounts. While it is true that the Defendant traded in those accounts on margin, which is risky, the Plaintiff understood what he was doing and authorized him to do so. When the downturn in the stock market occurred and the parties were required to make up the debit in those accounts, the Court finds credible the Defendant's testimony that he attempted to avoid the tax liability by refinancing the marital residence, mortgaged at a high rate, but that the Plaintiff refused to do so. While she may have been justified in her refusal, in light of the parties' marital difficulties, she must share the burden of the loss. Accordingly, this Court will charge neither party with marital waste.

Concerning the tax consequences of equitable distribution, the Court has taken those into account by adopting 40% tax impacted value as set forth in Defendant's testimony of the deferred accounts in the marital estate and by refusing, for the reasons set forth above, to tax impact the value of the "book of business".

Based upon all of the above, the Court, in its discretion, awards each party fifty (50%) percent of those marital assets constituting the proceeds from the sale of the marital residence and the tax impacted value of the Defendant's deferred compensation accounts as of the date of commencement of the Action. Based on the factors set forth, the Court also awards the Defendant fifty (50%) percent of the value of the Defendant's "book of business". DRL §236 B (5)(d) (1,2,5,6,7,8,10,11,13). The total marital assets due and owing the Plaintiff, therefore, amount to $483,904.28 ($967,808.57 ÷ 2) . In making this award, the Court wishes to make clear that it has not considered the Defendant's IRA in the amount of $174,000.00, that was cashed in to pay the debit on the margin accounts. Since the Court has determined that the tax liability was a marital debt, it would be punitive to include the asset as if it still existed.

Marital Debt

Debt incurred by the parties, for their general living expense, prior to the commencement of an action, is generally considered marital; and, at least in a long term marriage, should be divided equally between the parties. see, Corbett v. Corbett, 6 AD3d 766.

In this case, the Court adopts the parties' testimony that the $5,000.00 owed by the Plaintiff to Bloomingdale's pre-commencement; the $4,399.78 owed on the Chase Manhattan credit card; and the $14,105.41 owed on the Discover card all constitute marital debt, for a total of $23,505 to be split evenly between the parties when distributing the marital property. For the reasons set forth above, the Court also finds that the federal and state tax liability for [*17]2002 ($82,511.00) resulting from the Defendant's sale of his IRA, also constitutes marital debt to be shared equally between the parties ($41,225.50 each). Defendant will be responsible for this payment, and he will be entitled to reimbursement for one (½) half thereof from the Plaintiff to be deducted from her share of the marital estate.

ATTORNEY'S AND EXPERT FEES

Plaintiff's counsel has submitted a request for attorney's fees and disbursements to be paid on behalf of his client by the Defendant, in the amount of $89,068.46. In addition, Plaintiff's expert, Morton Cohen, has submitted a request for fees for his work in valuing the Defendant's enhanced earnings in the amount of $13,045.46. Plaintiff's attorney has been paid $5,000 from Defendant pursuant to a pendente lite order and has $10,000 held in his escrow account (as does Defendant's counsel) both subject to reallocation. Plaintiff's attorney argues that his fees were increased due to the length of the proceeding, which he attributes to the Defendant's lack of cooperation in providing financial information. He also argues that the disparity in the parties' financial circumstances supports an award of fees payable by the Defendant. Mr. Cohen, who received $5,000 for payment in full payment of fees from the Plaintiff, essentially echoes the statements of Plaintiff's counsel.

Defendant's counsel has submitted a request for attorney's fees and disbursements to be paid by the Plaintiff, in the amount of $66,261.35. In his Affirmation in Support, he essentially accuses the Plaintiff of delaying the proceeding by lying about her prior earrings and her various businesses.

The Domestic Relations Law §237 provides, in pertinent part, that in an action for divorce, the Court may direct either spouse to pay such sum of money directly to the attorney for the other spouse to carry on or the prosecution or defense of the proceedings, in the Court's discretion, justice requires "having regard to the circumstances of the case and the respective parties".

The Court states at the outset that both counsel in this case were extraordinary, both in their presentations of the case on behalf of their clients and in their professional demeanor throughout the case, despite the very open and real acrimony between the parties. As far as the actions of the parties in the litigation and the ultimate outcome of the case, the Court finds they were equally recalcitrant in disclosing their assets (Defendant) and their earning capacity (Plaintiff). However, despite the Equitable Distribution, which will leave the Plaintiff with over $400,000 in liquid assets, there remains a major earning disparity between the two parties. In addition, the Defendant, will be able to retain his deferred compensation accounts in tact, the values of which have increased substantially since the date of the commencement of this action. Based on all of the above, the Court in its discretion, makes an award to the Plaintiff of $30,000 in her attorney's fees to be paid by the Defendant. The payment should be handled in the context of the Court's distributive award set forth below.

The Court declines to award Plaintiff expert fees, in view of the other substantial awards in this litigation and, due to the disparity set forth above, declines to award the Defendant [*18]attorney's fees to be paid by Plaintiff. Each party is responsible for payment of all remaining counsel fees to their own attorney.

Distributive Award

Domestic Relations Law §236 B(5)(e) permits the Court to make a distributive award for the salutary purpose of effectuating and facilitating an award of marital property. As set forth above, the total marital assets from the sale of the residence and Defendant's deferred compensation accounts, to be evenly divided between the parties, amount to $967,808.67. In addition, as set forth above, the Court has awarded the Plaintiff $30,000 in her attorney's fees to be paid by the Defendant, and has stated that the Defendant should be reimbursed by the Plaintiff for one (½) half of the tax liability he shouldered for 2002. As described more fully below, the Court also awards the Plaintiff $10,000.00 in arrears in maintenance. In order to achieve this end, without invading the Defendant's deferred compensation accounts, which would then require payment of penalties, the martial estate shall be distributed as follows. The parties are directed to set aside from the funds held in escrow ( $512,940.55) for payment of three credit card creditors, the sum of $23,505.19. From that sum, they are ordered and directed to make payments to Bloomingdale's in the amount of $5,000.00; to Discover Card in the amount of $14,105.42; and to Chase in the amount of $4,399.78. That leaves $944,303.38 in marital assets to be divided ($472,151.69 each). Next, the Plaintiff shall deduct from her share her obligation to the Defendant for one (½) half the 2002 tax liability ($41,255.50). This allows the Plaintiff to receive, from the escrow account the sum of $430,896.19 ($472,151.69 - $41,255.50). Following distribution to the Plaintiff of that amount, $30,000.00 of the remaining escrow funds shall be distributed to Plaintiff's counsel and $10,000.00 shall be paid to Plaintiff to cover maintenance arrears making her total $440,896.19. Any remaining funds will be distributed to the Defendant. Each party will be responsible for the remainder on his/her own attorney's fees. The Defendant, having borne ½ the burden of the credit card debt, shall retain his tax impacted deferred compensation accounts and his book of business. He shall be responsible for payment of the 2002 tax liability, since one half that amount has been deducted from Plaintiff's share of the marital assets.

MAINTENANCE

In any matrimonial action, the court may order maintenance to be paid in such amount as justice requires, taking into consideration the parties' lifestyle during the marriage, as well as the needs and means of both parties. DRL §236 B(6). The statute lists eleven factors which the Court must consider, to the extent applicable, in setting the amount and duration of permanent maintenance. As set forth above, the Court must also avoid consideration of the same income stream utilized to value and divide the marital assets. see, Grunfeld, supra.

In this case, the Court considers the fact that the parties are in their mid forties and in [*19]good health. As a result of the equitable distribution of the marital assets as set forth above, both parties will be left with substantial assets from the marital estate. In addition, as stated, the parties took on traditional roles during the long term marriage, with the Plaintiff as a homemaker and the Defendant as breadwinner, earning a substantial income. While the Court believes the Plaintiff is capable of becoming self supporting due to her talents in the textile design field, based on all the evidence presented, the fact remains that she has not been active in her profession for most of the marriage because she chose to devote herself to the home. While the Defendant may state now that he disapproves of her behavior, he lived with her for a long period during which he was always the major means of support and during which he advanced his career as a successful stockbroker and financial advisor. Thus while the Plaintiff may ultimately be capable of earning $75,000.00 as stated by Defendant's witnesses, she will need several years of support to get herself back into the job market on a full time basis. With regard to the issues of wasteful dissipation, the Court adopts its findings from the prior portion of this Decision. Regarding the tax consequences of maintenance, no testimony was submitted in that regard.

With regard to the "double dipping" issue, the Court adopts that portion of Mr. Cohen's testimony which states that an income of approximately $100,000.00, which he assigns to a products marketing manager, without either enhanced earnings from any "Series" license and without a client base giving rise to "book of business". With regard to the Plaintiff's income, the Court finds that although she states that she is currently earning in the low $20,000.00 range, that she is, in fact, capable of earning $40,000.00 based on her earnings from her jewelry business and her past employment. Thus, the Court is finding that it will take the Plaintiff several more years to reach an earning potential in the range Defendant claims she can attain. For that reason, the Court is awarding the Plaintiff permanent maintenance in the amount of one thousand ($1,000.00) dollars per month for a period of eight (8) years, retroactive to the date of the application therefore in her pendente lite motion (9/24/01). This obligation shall continue, therefore, until September 24, 2009, unless the Plaintiff remarries, either party dies, or the Defendant cohabits on a full time basis with a paramour. The first maintenance payment shall be due and owing on December 1, 2004.

With regard to the payments due for the period between September 24, 2001 through December 1, 2004, the Court credits the Defendant with all payments he made under the pendente lite Order of Justice Bivona, dated June 19, 2002. The Defendant testified credibly that he did make all the mortgage payments on the marital abode through October, 2002, at the rate of $2,500.00 per month (including real estate taxes and homeowner's insurance). In addition, he made weekly spousal support payments under that Order, which, although not always in a timely fashion, have been, as per the parties' testimony, brought current as of the trial. In her post Trial submission, Plaintiff argues that she should be awarded $35,600.34 [*20]in closing fees due to the sale of the marital residence, caused by Defendant's failure to make mortgage payments (Plaintiff's 32). Approximately one half that amount appears to be attributable to late fees and interest. However, the parties agreed to the sale fo the residence and Defendant convinced this Court that his attempts to obtain Plaintiff's consent to refinance in 2000 and 2001 contributed to the problem. Accordingly, based on the testimony of the parties' at trial, which did not set forth an amount of pendente lite arrears, the Court rules that back payments for permanent maintenance amounts to $10,000.00. That amount is provided to the Plaintiff in the distributive award.

CHILD SUPPORT

A parent's fundamental obligation to provide for his or her child is well established by both statute and case law; and is "based on a party's ability to provide for their child rather than their current economic situation". Goddard v. Goddard, 256 AD2d 545,546. Accordingly, a party's demonstrated earning potential may be the basis for imputing income. see, Viscardi v. Viscardi, 755 N.Y.S2d 880. The award of child support in accordance with the dictates of DRL §240, is retroactive to the date of the application therefor and is calculated in accordance with the formula set forth under DRL §240(1-b).

Both parties testified at length regarding their ability to earn and their actual income. The Defendant states that despite his history of high earnings, all bonuses he receives are non recurring and that the market is poor today for stockbrokers, in view of competition and other forces. He opines, further that the Plaintiff never wanted to earn up to her potential, despite her obvious talent in her field. The Plaintiff argues that the Defendant always made money; that the parties lived well and that he participated in her decision not to pursue a career; but to spend most of her time raising the two boys.

Based on the parties' testimony, as set forth above, the Court believes the Defendant is certainly capable of earning an annual income of $40,000. This is higher than what she claims to earn at her part-time job and lower than the Defendant claims she can achieve. However, the amount chosen by the Court takes into consideration both her gross sales from her jewel ry business and her earnings prior to having children, on the one hand; and on the other, it recognizes that the Plaintiff, although capable, has remained out of the workforce for a period of years, as per the parties' choice. With regard to the Defendant, the Court is not limited as it was in the maintenance determination, by the "double dipping" proscription. see, Holterman v. Holterman, supra. Based on the parties' lifestyle during the marriage; the Defendant's high earnings year after year, whether including or excluding his EFL's and retention bonuses, the Court sets the child support, in this case, based on a gross income for the Defendant of $160,000.00. [*21]

Based, therefore on an imputed gross income to the Defendant for child support purposes of $160,000.00, his monthly share of the child support obligation, after deducting FICA, medicare and maintenance, amounts to $2,955.00. In addition to the above, the Defendant shall maintain health insurance covering the minor children of the marriage until their emancipation, and shall be responsible for eighty (80%) percent of their unreimbusred medical, dental and prescription drug expenses. Based on his significantly higher income, the Defendant shall also be responsible for eighty (80%) percent of both childrens' college expenses, including tuition, room, board, and books. This payment is not limited to the SUNY cap in view of the Defendant's income level. Defendant shall receive, however, a dollar for dollar credit for each dollar he pays toward room and board. That credit shall be deducted from his monthly child support obligation while the child is attending a college or university. The Defendant's obligation, although retroactive to the original application date, shall commence in this case on December 1, 2004, and shall continue until the emancipation of each child. The Court is aware that the parties have on consent, invaded the escrow account for at least one semester and is not making any adjustments therefore. As with the maintenance payments, this Court finds that the Defendant's payments pendente lite relieve him of retroactive payments for child support. Upon emancipation of the older child, the Defendant's child support obligation, based on the gross income of $160,000.00, will decrease to $2,009.00 per month, assuming he is still under his obligation to pay maintenance. Emancipation, for purposes of this Decision, shall occur upon either child reaching the age of 21 or 22, upon graduation from a full time college or university (whichever comes later); or, upon that child's marriage or entrance into the armed forces, if that should occur after the age of 18.

The Court wishes to make it clear to the parties that they have agreed to share legal custody of their one son, who is still under the age of eighteen, with the Plaintiff designated as the residential custodial parent. It is the Court's direction that both parties are entitled to full information regarding the child's health, education and welfare. However, should the parties disagree with regard to any of such issues, the final decision will remain with the Plaintiff.

This constitutes the DECISION and ORDER of the Court.

Submit judgment on or before January 21, 2005.