C.C.W. v J.S.W.

[*1] C.C.W. v J.S.W. 2006 NY Slip Op 52593(U) [15 Misc 3d 1140(A)] Decided on January 3, 2006 Supreme Court, Monroe County Bellini, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 3, 2006
Supreme Court, Monroe County

C.C.W., Plaintiff,

against

J.S.W., Defendant.



2004/004422



For Defendant:

J.W., pro se

Law Guardian:

Nathan Van Loon, Esq.

Harris, Chesworth, O'Brien, Johnstone, Welch & Leone, LLP

300 Linden Oaks, Suite 100

Rochester, New York 14625

Elma A. Bellini, J.

Plaintiff commenced this matrimonial action on April 19, 2004 seeking, among other things, a divorce on the ground of cruel and inhuman treatment. Defendant having failed to answer the allegations of the complaint, Supreme Court (Ark, J.) granted plaintiff a default divorce on the ground of cruel and inhuman treatment on August 3, 2004 and transferred all ancillary issues, which include custody, child support, equitable distribution and attorney's fees, [*2]to this court. The court presided over a trial of those ancillary issues on May 11, May 12, September 30 and October 3, 2005. Plaintiff was represented by counsel, defendant represented himself and the children were represented by a court-appointed law guardian. Witnesses included plaintiff, defendant, a former neighbor of the parties and the family's former therapist. Upon the request of defendant and with the consent of all parties the court conducted an in camera interview of the children. The stenographic record of the in camera proceeding was ordered sealed except for purposes of appellate review. Evidence also consists of numerous exhibits, including the court-ordered forensic evaluation report of Dr. Santo Bentivegna, which the parties stipulated into evidence.

The court has had a full opportunity to consider the evidence presented as well as to observe the demeanor of the various witnesses called to testify, thereby making determinations on issues of credibility with respect to those witnesses. The court now makes the following findings of fact and conclusions of law:

FINDINGS OF FACT

The parties were married on February 8, 1992 and are the parents of two boys, ages 13 and 11. Plaintiff is 44 years old and in good health. Plaintiff currently resides in a two-story residence in a suburb of Rochester owned by the trust established by her father and of which plaintiff is trustee and beneficiary. Prior to the marriage, plaintiff attained her Bachelor of Science degree in mechanical engineering from Northwestern University and her Master of Science degree in statistics from Rochester Institute of Technology. She has worked for a Rochester corporation for the past 20 years and currently holds the position of Quality Project Engineer earning approximately $95,580 per year. Plaintiff typically travels the equivalent of four to five weeks during the year for work purposes. Plaintiff has earned or contributed to the following retirement and savings plans and funds, which have the following date of commencement values: (1) Common Stock Options: 184 options with an option price of $31.30 and value of $0; (2) Retirement Plan (pension) with a value of $45,125; (3) Savings Investment Plan with a value of $136,334; (4) Stock Ownership Plan with a value of $82.75.

Defendant is 57 years old and in good health. Defendant currently rents property that is located approximately one mile from plaintiff and in the children's school district. Prior to the marriage, defendant attained a Bachelor of Science degree in Sociology and Psychology from the University of Rochester. At the time of the marriage, defendant was employed as a police officer earning an unspecified salary. Since his retirement from the police force, defendant has worked only briefly as a part-time lifeguard at the YMCA and is currently unemployed. Defendant's income consists of pension payments of $40,119 per year or $3,343 per month. Defendant also has monies in his New York State Deferred Compensation Plan, which consisted of $119,317 as of June 30, 2004. Just prior to the commencement of the action, defendant realized $36,333 from the sale of separate property he inherited from his mother.

Relevant findings regarding financial information other than that referenced above are as follows: (1) Funds currently in escrow with plaintiff's attorney include a tax refund for 2003 in the amount of $4,340 and refunded premium checks issued jointly to the parties in the aggregate amount of $1,067.95 from Amica Insurance, which amount plaintiff paid post-commencement from separate funds; (2) Another Amica Insurance refund check in the amount of $321.50, representing a premium payment made by plaintiff post-commencement, is not in escrow but defendant has not signed it over to plaintiff; (3) An escrow account is held by plaintiff containing [*3]$5,690.33, representing proceeds from the sale of marital property; (4) Plaintiff has an investment account with Fidelity, the date of commencement value of which was $29,612. Of that amount $5,000 is plaintiff's separate property. Plaintiff further seeks to reduce the date of commencement value by a $14,000 post-commencement withdrawal that she claims was used to pay off a loan incurred in her name during the marriage; (5) Defendant is in possession of a check in the amount of $7.35 from a joint checking account at Edward Jones, which he has not presented to plaintiff for signature; (6) Marital debt consists of the following: (a) ESL joint checking account overdraft in joint names in the amount of $5,048 that existed at the time of the commencement of the action but has since been paid off by plaintiff; (b) ESL checking account overdraft in defendant's name in the amount of $4,278 (amount determined by reference to plaintiff's statement of net worth); (c) Joint ESL Visa account in the amount of $9,827 (the average of what plaintiff reported on her statement of net worth and the amount reported by plaintiff's Equifax credit statement); (d) MBNA Mastercard, incorrectly listed as Fidelity Visa, in the amount of $13,640 (determined by billing statement as of April 7, 2004); and (e) American Express account in plaintiff's name alone in the amount of $10,386 (the average of what plaintiff reported on her statement of net worth and the amount reported by plaintiff's Equifax credit statement).

With regard to the parties' family life, after the children were born defendant changed his work hours to 2:00 pm - 10:00 pm, while plaintiff returned to work on a part time basis. Upon his retirement in Spring 1999, defendant remained at home with the children while plaintiff resumed a full time schedule working 8:00 am to 5:00 pm. During the marriage, the parties shared childcare, housekeeping and farm responsibilities and alternated taking the children to and from daycare, extracurricular activities such as sports and music lessons and doctor's appointments. Plaintiff acknowledged that defendant primarily transported the children approximately 60 miles round-trip to and from their private school. While the parties were together, parenting appears to have been a truly collaborative effort of the parties to the point that plaintiff would read the children bedtime stories over the telephone when she was required to be away from home due to work travel.

The children attended costly private schools up through the 2004-2005 school year, at which time the older child began attending public school. The younger child also began attending public school this current school year. Both children are excellent students. During the past few summers, the children have attended a costly sleep-away camp for up to four consecutive weeks. The parties have also taken numerous national and international vacations with the children.

During the course of the marriage, defendant disciplined the children by means of yelling, cold showers, occasional pinching and, on at least one occasion, "nerve locks" or "pressure points." Plaintiff acknowledged that she used the cold shower method of discipline on a couple of occasions only and not since the children were pre-school aged, and acknowledged that defendant stopped using that tactic about four years ago. Plaintiff's forms of discipline include lectures, time-outs and sending the kids to their rooms. Plaintiff's mother, who has frequent contact with the children, has on at least one occasion, attempted to force-feed the younger child and has employed the "pressure points" or "nerve lock" method.

Plaintiff catalogued a series of what the court considers minor incidents that occurred during 2003, wherein defendant yelled at, argued with or was "tough" on the older child and, to a [*4]much lesser extent, the younger child. Plaintiff described defendant as "stressed and angry" and impatient with the children during much of 2003, which is largely confirmed by the notes of defendant's psychiatrist. Defendant's plausible explanation for his disposition, also largely confirmed by the notes of his psychiatrist, was the decline of his marriage and the illness and death of his mother, coupled with the difficulty of finding the right combinations of medications for his clinical issues. In November 2003 plaintiff began working from 8:00 am to 3:30 pm to permit her to be home when the children returned from school because she did not feel that the children were safe with defendant.

Plaintiff also described additional incidents occurring in early 2004 leading up to defendant's departure from the marital residence in April 2004. In February 2004 defendant began talking about the parties' differences in front of the children. In March 2004 defendant demanded that plaintiff tell the children that she wanted defendant to leave the residence, which was contrary to the advice of the family's then-counselor, Dr. LaVern Cole-Ristuccia, to advise the children of the impending separation after a well thought-out plan. In April 2004 defendant was charged with harassment for an incident occurring between him, plaintiff and plaintiff's mother triggered by the urging by plaintiff for defendant to leave the marital residence. The proceedings on those charges culminated in one-year orders of protection in favor of plaintiff and her mother, respectively. The incident occurred in part in the presence of the older child.

Interestingly, for as clear as her memory was with regard to negative interaction between defendant and the children, plaintiff had much difficulty recalling any positive interaction between defendant and the children when examined by defendant regarding the same. Such positive interaction included, among other things, engaging in various tasks and projects at the residence/farm/barn where the parties resided together, engaging in sporting activities with the children and helping the children with school projects.

The court notes that during the pendency of this action, the temporary visitation schedule has granted defendant parental access on Wednesday evenings through Thursday mornings and alternate weekends. With regard to telephone access during this time period, it should be noted that plaintiff took away the children's personal telephones for five months because she felt that the children were spending too much time speaking with defendant.

Approximately five years ago, defendant was diagnosed with Attention Deficit Disorder/Attention Deficit Hyperactive Disorder (ADD/ADHD) and he has sought treatment through medication and psychiatrists for the same. As documented by defendant's treating psychiatrist, the quest to find the right combinations of medications to treat defendant was somewhat complicated and was exacerbated by the unraveling of the parties' marriage, which caused defendant mild depression and anxiety as well. Defendant currently takes three medications in low to modest doses which, according to defendant's psychiatrist, will not impair defendant's judgment, behavior or motor skills. Contrary to the position of plaintiff, defendant's psychiatrist opines that defendant poses "no overt danger to harm [his] children" (Defendant's Exhibit A). Although plaintiff has attended therapy in the past and has taken trial samples of a medication for a brief period of time, she denies any mental health issues.

Dr. LaVern Cole-Ristuccia (Dr. LaVern), an expert in psychology and the parties' and children's former therapist, was called to testify by the law guardian. Dr. LaVern was first contacted by the parties in March 2004 to set up family counseling primarily to assist the children in coping with the parties' impending separation. From March 2004 through December [*5]2004, Dr. LaVern conducted sessions with the parties individually, each party with the children and the children either individually or together. Dr. LaVern described plaintiff as a conscientious, concerned and caring parent and defendant as a conscientious parent who loves his children and was very concerned about the children's emotional states.

Dr. LaVern described the older child as "angry" and the younger child as "anxious" and stated that those respective mental states worsened upon the parties' actual separation in April 2004. At this time, relations between plaintiff and the children were tense and the children, especially the older child, were angry at plaintiff for the separation and wanted their parents back together. Dr. LaVern perceived a good relationship between defendant and the children and noted that the older child appeared ready to do anything to be in defendant's good graces. Dr. LaVern stated that plaintiff did a better job of shielding the children from the unharmonious situation between the parties due to the fact that she was more in control of her emotions.

Dr. LaVern recalled an incident that occurred on December 3, 2004 whereby the younger child handed her a piece of paper given to him by defendant regarding the children's summer camp schedule. The younger child was very adamant that the "summer camp issue" had to be settled that day. Dr. LaVern assumed that defendant had been speaking to the children about the court proceedings as concerned visitation.

Dr. LaVern opined that the parties were not good candidates for joint custody because there was "no meeting of the minds" to make joint decisions regarding the children. Plaintiff confirmed that the parties have had disagreements regarding educational and medical decisions regarding the children. Dr. LaVern further stated that plaintiff was more consistent in terms of following Dr. LaVern's advice and instructions.

After ending counseling with Dr. LaVern, plaintiff arranged for the older child to continue counseling with Dr. Gilberg and the younger child to continue counseling with Dr. Miller. At the time of trial, the children were seeing their respective counselors on a weekly or bi-weekly basis.

During the course of the trial the court ordered clinical psychologist Dr. Santo Bentivegna to conduct a complete forensic evaluation of the parties and the children. Dr. Bentivegna then prepared a report, which the parties stipulated into evidence and the relevant parts of which the court will now discuss. The parties and their children are all highly intelligent individuals, with the children scoring in the superior range for their respective age groups. Dr. Bentivegna concludes that plaintiff and defendant each suffer, among other things, from a degree of paranoia, which in turn tends to result in "a high level of difficulty in communicating and/or working with one another as both parties are suspicious of what the other is doing." Dr. Bentivegna further concludes that "[t]he culmination of these psychological test findings suggest that negotiations may be extremely difficult between these parties."

While Dr. Bentivegna found the younger child to be coping fairly well with the situation, he found the older child to be "extremely anxious and at risk for further mental health deterioration" and strongly suggests continued counseling. Dr. Bentivegna found both children eager to please both parents and noted that the older child "is a child who is dancing as fast as he can' to please both his mother and father." Dr. Bentivegna emphasized the children's shared desire to have relatively equal parental access, which desire Dr. Bentivegna found to be "genuine and honest."

Dr. Bentivegna described plaintiff's home as a large, two-story home with ample space [*6]both indoors and outdoors, separate bedrooms for the children, a plentiful food supply and various recreational and educational materials for the children. Dr. Bentivegna described defendant's residence as a smaller rental property where the children shared a bedroom. Dr. Bentivegna noted that there was a large play area in the backyard and plenty of recreational and educational materials inside the residence. Dr. Bentivegna summarized as follows: "[T]he home visits displayed environments which were warm, caring, and sufficient within the confines of providing at the very least a marginally acceptable and safe environment. The difference was in quality." The court notes that defendant has moved to a different residence about which the court has not been enlightened other than by notification of change of address.

With regard to its in camera interview of the children, the court notes that both children demonstrated an intelligence and maturity beyond their respective 13 and 11 years. The court notes that, like Dr. Bentivegna, it found the children's desires to be genuine rather than the result of undue influence from one or both parents. The court did not perceive the children to be fearful of either parent and has no concern of excessive or abusive punishment. The court's in camera interview of the children tends to confirm the position of defendant's psychiatrist that defendant poses no overt danger to the children.

CONCLUSIONS OF LAW

1.CUSTODY AND VISITATION

Both parties seek sole legal custody of and primary physical residence with the children. The Law Guardian recommends that plaintiff have sole legal custody of the children as well as primary physical residence and, like plaintiff, recommends to make permanent the temporary visitation schedule Wednesday evenings and alternate weekends that has been in place during the pendency of this action. Defendant seeks additional visitation time in the event that he is not awarded primary physical residence.

In adjudicating custody issues the paramount concern is the best interests of the child (see Domestic Relations Law § 240 [1] [a]; Eschbach v Eschbach, 56 NY2d 167, 171 [1982]; Friederwitzer v Friederwitzer, 55 NY2d 89, 93-95 [1982]). In determining the best interests of the child, the court must consider the totality of the circumstances by examining factors including "the quality of the home environment and the parental guidance the custodial parent provides for the child, the ability of each parent to provide for the child's emotional and intellectual development, the financial status and ability of each parent to provide for the child, the relative fitness of the respective parents . . . the length of time the present custody has continued and . . . [taking into consideration age and maturity] the desires of each child" (Gill v Gill, 135 AD2d 1090, 1091 [4th Dept 1987] [internal quotations and citations omitted]). Another factor that should be examined is the effect an award of custody to one parent would have on the child's relationship with the other parent (see Matter of Green v Gordon, 7 AD3d 528, 529 [2nd Dept 2004]; Ciannamea v McCoy, 306 AD2d 647 [3rd Dept 2003]).

In addition, "Domestic Relations Law § 240 (1) provides that in any action concerning custody or visitation where domestic violence is alleged, the court must consider the effect of such domestic violence upon the best interest of the child, together with other factors and circumstances as the court deems relevant in making an award of custody" (Wissink v Wissink, 301 AD2d 36, 39 [2nd Dept 2002]).

A.Evaluation of Best Interests Factors

1.The quality of the home environment. Plaintiff unduly emphasizes the material quality of her home in comparison to that of defendant. Dr. Bentivegna found both parties' [*7]homes to be of good nurturing quality, stating that "the home visits displayed environments which were warm, caring, and sufficient within the confines of providing at the very least a marginally acceptable and safe environment." The "difference in quality" noted by Dr. Bentivegna clearly is meant to convey the difference in material quality between a large home and a rented apartment. The key to this factor is that both environments were warm, caring and safe. Although defendant has apparently moved to a new residence, the court simply cannot fathom that defendant would place the children in an unsafe residential environment. The court also notes that both parties' residences are located in the same affluent suburb of Rochester.

2.Parental guidance. Both parents appear to be well in-tune with the personality characteristics and interests of their children and are equally concerned with the children's well-being. Judging from the in camera interview, both parents have provided excellent guidance to their intelligent, mature and polite children.

3.Ability for each parent to provide for the child's emotional and intellectual development. Undoubtedly both parties are more than capable of providing for the children's intellectual development. The parties' intellectual functioning is in the superior range and as evidenced by the former private schooling and choice of current school district, both value quality education for the children. Analysis of the parties' respective abilities to provide for the children's emotional development is somewhat trickier. Plaintiff demonstrates a more controlled or distanced emotional state while defendant, in the words of Dr. LaVern, tends to "wear his emotions on his sleeve." Defendant's current psychiatrist noted, however, that "[o]ver the time of working with me [since October 2002], [defendant has] learned to handle [his] emotions well". Obviously, the parties tend to be at opposite ends of the spectrum regarding their respective displays of emotion. The court, however, feels confident that both parents have the ability to foster good emotional development in the children and is hopeful that the equal time schedule fashioned below will result in a "happy medium" in this area.

4.Financial status and ability to provide for the children. Plaintiff's income is more than double that of defendant and therefore she has a heightened financial status. Because defendant makes a comfortable pension and will be able to provide for basic needs of the children, the court does not give much weight to this factor. In addition, equally shared physical custody of the children results in plaintiff's obligation to pay child support, which in turn will create a more equal financial situation between the parties.

5.The relative fitness of the parties. Plaintiff repeatedly emphasizes the unfitness of defendant due to mental health issues. It is undisputed that defendant has been under the care of a psychiatrist for the past three years and that he takes medications for his diagnosed conditions. However, defendant takes each medication in low to modest doses which, according to defendant's psychiatrist, will not impair defendant's judgment, behavior or motor skills. Defendant's psychiatrist opines that defendant poses "no overt danger to harm [his] children." Although in the past defendant has been reluctant to take certain medications, he seems to be on a consistent course of treatment at this point in time. The court is therefore not overly concerned that defendant's mental health issues will affect his relative fitness as a parent.

6.Length of time of present custodial arrangement. Plaintiff has been exercising sole legal custody of and has been the primary residential parent for approximately 20 months. In the context of legal proceedings, that is not an extraordinarily long period of time. The court notes that defendant has been exercising visitation regularly every Wednesday evening to [*8]Thursday morning and alternate weekends.

7.Desires of each child. Initially, the court notes that the children, 13 and 11, respectively, were both intelligent and mature beyond their years. The report of Dr. Bentivegna and the court's in camera interview confirm that the children would like to spend more time with defendant and equal time with both parties. Contrary to plaintiff's position, both the court and Dr. Bentivegna found the children's desires to be genuine rather than the result of undue influence from one or both parents.

8.Effect of an award of custody to one parent would have on the child's relationship with the other parent. The court perceives plaintiff to be the more controlling individual of the two parties and therefore has concerns that an award of sole custody to her would be to the detriment of the children's relationship with defendant. In this regard, the court notes that plaintiff denied the children their personal phones for a period of five months because, in her opinion, they were spending too much time speaking with defendant. Although there is acrimony on both sides of the equation here, it is clear to the court that plaintiff harbors a greater disdain of defendant than he does of her.

9.Domestic violence. The domestic violence that resulted in defendant's conviction of harassment appears to be an isolated, "heat of the moment" type incident that, though not admirable behavior on the part of defendant, was relatively minor as far as domestic violence is concerned. The court therefore does not consider domestic violence a significant factor in its custody determination.

B.Legal Custody

With regard to legal custody, it has traditionally been awarded either solely, with one parent making major decisions, or jointly, which requires both parents to collaborate and agree on major decisions. In recent years, however, New York courts have created a sort of hybrid legal custody concept referred to as "zones" or "spheres" of decision making, where each parent is awarded sole decision making authority over specific areas of the children's lives (see Kaye v Kaye, Sup Ct, New York County, Nov. 24, 2003, Gische, J., Index No. 350312/01; Ring v Ring, Fam Ct, Queens County, October 29, 2003, DePhillips, J., Docket No. V-15385/01, affd 15 AD3d 406 [3rd Dept 2005]; Arenson v Arenson, 2003 NY Slip Op 50573 [U], 2003 WL 1389057 [Sup Ct 2003]). The objective is to permit otherwise capable, active parents who are not good candidates for joint decision making to each retain meaningful input in the lives of their children.

In the present case, both parties have been caring and involved parents and are fit to make important decisions for the children. Joint custody, however, is simply not feasible due to the level of acrimony that currently exists between the parties coupled with the fact that, as aptly noted by Dr. Bentivegna, "[b]oth parties feel well convinced of their positions and see the validity of their own particular stance." Because the court does not feel that an exploration of the "best interests" factors necessarily weighs in favor of one parent over the other, the court believes that the parties should be given final decision-making authority in the following areas:

1.Plaintiff's Zones of Decision Making

a.Religion. The court has gleaned from plaintiff's testimony that she takes the children to church regularly. Because it is unclear whether or to what degree defendant has been involved in the religious upbringing of the children, the court is granting plaintiff decision making authority in this area. The mother's right to exercise religious upbringing, however, is not intended to prevent defendant from exposing the children to his religion, if it is different than [*9]that of plaintiff.

b.Finances. The court believes plaintiff is better suited to make decisions for the children in the area of finances. Plaintiff maintains impeccable records of almost everything, including her finances. She has also managed and made decisions regarding the significant assets of a family trust.

c.Counseling/Therapy. While the court does not necessarily believe one parent to be better suited for decision making regarding the necessary counseling for the children, the court notes that plaintiff has arranged for and established a counseling routine for the children with certain psychologists during the pendency of this action and the court does not want to risk that course being potentially disrupted by awarding defendant decision making authority in this area. To this end and as emphasized by Dr. Bentivegna, the court urges plaintiff to continue both children or, at a minimum, the older child, in counseling.

d.Summer activities. Although the court believes that neither party has an advantage over the other in this decision making area, the court is awarding this zone to plaintiff as a counterbalance to the award to defendant of decision making regarding school year extracurricular activities. Plaintiff may not, however, select any summer activity that interferes with defendant's shared physical custody rights (as set forth below) unless defendant agrees to the same in writing. Specifically, unless sleep away camp is scheduled during plaintiff's half of "Summer Vacation" (defined below), it is an option only upon the written consent of defendant.

2.Defendant's Zones of Decision Making

a.Education. Both parties are well educated and appear to highly value the education of their children. Both parties have been involved in the children's school lives. The court therefore perceives them to be equally fit to make education related decisions for the children. This zone is awarded to defendant primarily in an effort to equalize each parent's involvement in important decisions in the children's lives.

b.Medical/Dental. Both parties have been involved in taking the children to appointments and it appears that both parties are equally suited to make decisions in this area. This zone is likewise awarded to defendant primarily in an effort to equalize each parent's involvement in important decisions in the children's lives.

c.Extracurricular activities during the school year. Defendant appears to be well acquainted with and supportive of the children's interests and has always, like plaintiff, fostered the development of their talents in diverse activities. As the children reach adolescence, the court believes the influence of defendant in this area may be a bit better suited to decision making than that of plaintiff.

Although each party has his and her respective decision making authority, the court directs the parties to make a good faith attempt to discuss major decisions in the respective zones before such decisions are made and further directs that each party keep the other advised when any final major decision is made; AND IT IS SO ORDERED.

C.Physical custody

While mindful of the recommendation of the Law Guardian regarding physical custody, the court is persuaded by the evidence, in particular the report of Dr. Bentivegna and the in camera interviews with the children, that equal shared physical custody is in the best interests of the children. The court notes that such an arrangement is facilitated by the fact that the parties live approximately a mile apart in the same school district. [*10]

To attain what is a nearly equal time schedule, parental access shall be as follows:

1.Regular weekly schedule

IT IS HEREBY ORDERED THAT the following regular weekly residency schedule shall commence immediately:

The children will be with plaintiff every Monday from the conclusion of school through the start of school on Wednesday. Plaintiff has the right and/or responsibility of transporting the children to school on Wednesday.

The children will be with defendant every Wednesday from the conclusion of school through the start of school on Friday. Defendant has the right and/or responsibility of transporting the children to school on Friday.

The children will be with each parent on alternate weekends beginning from after school on Friday until the start of school on Monday.

Plaintiff will have the first alternate weekend commencing after school on Friday, January 6, 2006 and the children will reside with her until Wednesday, January 11, 2006 at the start of school. The children will then reside with defendant commencing after school Wednesday, January 11, 2006 though Monday, January 16, 2006 at 5:00 pm (on a normal Monday the access period would conclude with the start of school, but see below regarding Martin Luther King, Jr., Day). The schedule will then continue according to the parameters set forth above and below.

If plaintiff is required to travel for work and such travel includes overnight stays away from her residence, defendant shall have the children for such time period of plaintiff's travel if the children are not already in residence with defendant.

During summer recess, the beginning and ending of the visitation period will correspond with the beginning and ending of any organized program or activity in which the children are participants. If the children are not engaged in any such program, than the beginning and ending of the visitation periods shall be 5:00 pm.

2.Holidays, school-year vacations and birthdays

The following holiday, school-year vacation and birthday residency schedule is HEREBY ORDERED:

a.Martin Luther King, Jr., Day. The regular weekly schedule will be followed on Martin Luther King, Jr., Day except that if Martin Luther King, Jr., Day immediately follows defendant's weekend visitation, he shall maintain residency of the children until 7:00 pm that Monday.

b.President's Day Weekend. Provided that such weekend is not a part of Winter Break, plaintiff shall have this weekend in odd-numbered years and defendant shall have this weekend in even-numbered years. "President's Day Weekend" is defined as the period from the close of the regular school session prior to President's Day until the start of the next regular school day.

c.Winter Break. Plaintiff shall have Winter Break in even-numbered years and defendant in odd-numbered years. "Winter Break" is defined as the period from the close of the regular school session prior to Winter Break week through the start of the next regular school day.

d.Easter Weekend. Provided that such weekend is not part of Spring Recess, plaintiff shall have this weekend in even-numbered years and defendant shall have this weekend [*11]in odd-numbered years. "Easter Weekend" is defined as the period from the close of the regular school session prior to Easter Day until the start of the next regular school day.

e.Spring Recess. Plaintiff shall have Spring Recess in odd-numbered years and defendant in even-numbered years. "Spring Recess" is defined as the period from the close of the regular school session prior to Spring Recess week through the start of the next regular school day.

f.Mother's Day. If Mother's Day falls on a Sunday when the children are not residing with plaintiff, the children shall spend that day from 10:00 am until 7:00 pm with plaintiff.

g.Memorial Day (observed). The regular weekly schedule will be followed on Memorial Day except that if Memorial Day immediately follows defendant's weekend visitation, he shall maintain residency of the children until 7:00 pm that Monday.

h.Father's Day. If Father's Day falls on a Sunday when the children are not already in residence with defendant, the children shall spend that day from 10:00 am until 7:00 pm with defendant.

i.July 4th. Plaintiff shall have the children in even-numbered years and defendant shall have the children in odd-numbered years. Parental access time shall be from 11:00 am on July 4th through 11:00 am on July 5th.

j.Labor Day. The regular weekly schedule will be followed on Labor Day except that if Labor Day immediately follows defendant's weekend visitation, he shall maintain residency of the children until 7:00 pm that Monday.

k.Columbus Day (observed). The regular weekly schedule will be followed on Columbus Day except that if Columbus Day immediately follows defendant's weekend visitation, he shall maintain residency of the children until 7:00 pm that Monday.

l.Veteran's Day (observed). Plaintiff shall have the children in odd-numbered years and defendant shall have the children in even-numbered years. Parental access time shall be from 9:00 am until 6:00 pm.

m.Thanksgiving Recess. Plaintiff shall have the children in odd-numbered years and defendant shall have the children in even-numbered years. "Thanksgiving Recess" is defined as the period from the close of the regular school session prior to Thanksgiving Day until the start of the next regular school day.

n.Christmas Eve/Day and Christmas Recess. Plaintiff shall have the children from 12:00 pm on Christmas Eve until 12:00 pm on Christmas Day in odd-numbered years, and defendant shall have this same arrangement in even-numbered years. "Christmas Recess" is defined as the period beginning at 12:00 pm on Christmas Day and ending at the start of the next regular school day. Plaintiff shall have Christmas Recess in even-numbered years and defendant shall have Christmas Recess in odd-numbered years. Whichever party does not have the children for Christmas Recess shall have the first alternate weekend in January.

o.Birthdays. The non-resident parent is permitted to have two hours with each child on his respective birthday, except that such time shall not interfere with school or other organized activities. If the particular child's birthday falls on a school day, the two hour timeframe with the non-resident parent must end no later than 9:00 pm.

3.Summer Vacation

Each party shall have vacation time with the children during the summer. Unless the [*12]parties otherwise agree by April 1st of each year on a vacation schedule, then in that year they shall divide equally the days from August 1st through Labor Day ("Summer Vacation Period"). Plaintiff shall have the first half of the Summer Vacation Period in odd-numbered years and the second half of the Summer Vacation Period in even-numbered years. Defendant shall have the first half of the Summer Vacation Period in even-numbered years and the second half of the Summer Vacation Period in odd-numbered years; AND IT IS SO ORDERED.

4.Conflicts

In the event of a conflict in the residency schedule, the holiday, school-year vacations, Summer Vacation Period and birthday schedules will take precedence over the regular weekly schedule; AND IT IS SO ORDERED.

C.Other provisions relevant to custody

1.Transportation. When pick-ups or drop-offs are not at the children's school(s) or organized summer program(s), the responsibility to transport the children shall be that of the parent whose residency period is beginning. There is currently a no-contact order of protection against defendant in favor of plaintiff that expires on January 12, 2006. Because pick-ups and drop-offs will now coordinate with the children's school day, there should not be an issue. On an occasion when a pick-up or drop-off occurs at the residence of the parties, the court would strongly encourage that such transaction occur curbside despite the fact that there will no longer be an order of protection after January 12, 2006; AND IT IS SO ORDERED.

2.Passports. For practical purposes, one parent should probably be the primary holder of the children's passports. Because plaintiff specifically requested the same, the court awards her primary possession of the children's passports. In the event that defendant desires to vacation internationally with the children, he shall have temporary possession of the passports during the duration of the travel up to 72 hours after returning to the country; AND IT IS SO ORDERED.

3.Travel. When either party is out of Monroe County with the children for longer than 24 hours, he or she shall notify the other party of an address and telephone number of the place where he or she will be with the children; AND IT IS SO ORDERED.

4.Major illness, injury or emergent situation. Each party shall be obligated to advise the other as soon as practically possible of a major illness, injury or other emergent situation regarding the children as well as the care being provided to the children in such situation; AND IT IS SO ORDERED.

5.Activities. Neither party shall unreasonably deny the children the ability to participate in extracurricular activities and/or social events; whatever party has the children with them at any given time shall transport the children to their extracurricular activities and/or social events; AND IT IS SO ORDERED.

6.Access to records and information. Each parent will maintain an individual right to any and all records that pertain to the children, including medical, dental and school records. Each parent will make individual arrangements with the provider or keeper of the records to obtain his or her copies. The parent responsible for deciding who the provider will be has the obligation to make the identity of the provider known to the other parent in a timely manner; AND IT IS SO ORDERED.

7.Contact information. Each party shall provide the other with a residential telephone number, cell phone number, residential address, mailing address and e-mail address [*13]and shall notify each other of any change thereof within 72 hours of the same; AND IT IS SO ORDERED.

8.Communication with non-resident parent. The children shall be permitted to communicate with the non-resident parent and vice versa, if the children so desire, by telephone or e-mail for reasonable periods of time without interference or monitoring by the residential parent. "Reasonable periods of time" shall be, at a minimum, an aggregate of two hours per day; AND IT IS SO ORDERED.

9."Children's Bill of Rights." Each party shall respect the following "rights" of the children:

a.The right not to be asked to choose sides between their parents.

b.The right not to be told the details of legal proceedings between their parents.

c.The right not to be told disparaging things about the other parent's personality or character.

d.The right to privacy when talking to either parent on the telephone or sending e-mail.

e. The right not to be cross-examined by one parent after spending time with the other parent.

f.The right not to be asked to be a messenger from one parent to the other.

g.The right not to be asked by one parent to tell the other parent untruthful information.

h.The right not to be used as a confidant regarding the legal proceedings between the parents.

i.The right to express feelings.

j.The right to choose not to express certain feelings.

k.The right to be protected from parental warfare.

l.The right not to be made to feel guilty for loving both parents;

AND IT IS SO ORDERED.

2.CHILD SUPPORT

A.Basic Child Support Obligation

As set forth above, the court has fashioned a schedule whereby the parties equally share physical residency of the children. In Baraby v Baraby (250 AD2d 201[3rd Dept 1998]), the Appellate Division addressed the application of the Child Support Standards Act (CSSA) to such a situation: [W]here . . . the parents' custodial arrangement splits the children's physical custody so that neither can be said to have physical custody of the children for a majority of the time, the parent having the greater pro rata share of the child support obligation, determined after application of the three-step formula of the CSSA, should be identified as the noncustodial' parent for the purpose of support. . . That parent must be directed to pay his or her pro rata share of the child support obligation to the other parent unless the statutory formula yields a result that is unjust or inappropriate. In that event, the trial court can resort to the paragraph (f) factors and order payment of an amount that is just and appropriate

(id. at 304 [quotations and citations omitted]). [*14]

Plaintiff's gross income as reported in her 2004 federal income tax return (see Domestic Relations Law § 240 [1-b] [b] [5] [i]) is $94,652. Deducting $6,942 (FICA taxes actually paid), plaintiff's adjusted gross income is $87,710. Defendant's gross income as reported in his 2004 federal income tax return is $42,875. Deducting $174 (FICA taxes actually paid), defendant's adjusted gross income is $42,701. Combined parental income is $130,411. Plaintiff's pro rata share of combined parental income is 67% and defendant's pro rata share of combined parental income is 33%. Child support for two children (25%) on the first $80,000 of combined parental income is $20,000. Plaintiff's pro rata share of support as "noncustodial" parent is $13,400 per year or $1,117 per month on combined parental income to $80,000.

The combined parental income in excess of $80,000 is $50,411. Child support for two children (25%) on that amount is $12,603 per year. Plaintiff's pro rata share of that amount is $8,444 per year or $704 per month. The court finds it appropriate to apply the CSSA formula to income over $80,000 for the following reasons: (1) Plaintiff earns more than twice the amount of income as defendant; (2) Plaintiff, as trustee and beneficiary of a family trust, has access to additional assets. Specifically, trust assets have been used to purchase the new home in which plaintiff resides; (3) The equal shared physical custody of the children necessitates a more even distribution of combined parental income; (4) The children would have enjoyed a more heightened standard of living had the household remained intact. Specifically, while the parties were together, the children enjoyed, among other things, the privileges of private schooling, extensive travel and participation in diverse activities.

Plaintiff's child support obligation is therefore $1,821 per month. This amount shall be reduced to $1,319 per month from January 1, 2006 through August 1, 2007 to offset the retroactive amount owed to plaintiff from her share of defendant's pension from April 2004 through December 2005 (less $502 per month for 20 months). Plaintiff shall pay defendant directly $1,319 per month on the first day of each month commencing January 1, 2006 through and including August 1, 2007. Plaintiff may further reduce that amount to $817 per month until such time as a Domestic Relations Order for her share of defendant's monthly pension payment is signed, entered and implemented by the Plan Administrator of the New York State Retirement System. At such time as plaintiff begins receiving her $502 per month directly from the Plan Administrator, she shall commence paying defendant $1,319 per month through the August 1, 2007 payment. Commencing September 1, 2007, plaintiff shall pay child support directly to defendant in the amount of $1,821 per month; AND IT IS SO ORDERED.

Given the court's determination, it is unnecessary to calculate retroactive child support.

B.Life Insurance

During the time that plaintiff is obligated to pay child support, she shall maintain in full force and effect a life insurance policy in the amount of $200,000 and shall designate the children as beneficiaries until such time that they are emancipated. Plaintiff shall secure such policy no later than 30 days after the date of this decision and provide proof of payment of premiums to defendant on an annual basis on the anniversary date of said policy; AND IT IS SO ORDERED. C.Health Insurance

Both parties have employer-provided health insurance and/or dental insurance. Plaintiff shall continue to maintain dental insurance for the children and defendant shall continue to maintain health insurance coverage for the children. The parties' respective obligations shall [*15]continue until the children are emancipated and Qualified Medical Child Support Orders should be prepared accordingly; AND IT IS SO ORDERED. D.Child Support Add-Ons

1.Child care expenses. Plaintiff has represented that there are presently no day care arrangements and defendant will not require day care for the children because he is retired. In the event plaintiff engages a day care provider for the children during the periods they are residing with her, the court declines to order defendant to pay a pro rata share of such expense due to the fact that defendant is an available, no-cost daycare provider; AND IT IS SO ORDERED.

2.Uninsured medical expenses. Uninsured medical, optical, dental, orthodontic, prescriptive drug and counseling expenses of the children shall be shared by the parties according to their respective pro-rata share of combined parental income, which is 67% for plaintiff and 33% for defendant. At the end of each month the parties shall submit copies to each other of receipts evidencing such expenditures and they shall have 15 days to pay each other their respective shares thereof; AND IT IS SO ORDERED.

3.Education expenses. The children have spent most of their primary education years in private schools, but have recently begun attending public school. It is the view of the court that the parties cannot now afford private school education and therefore the court declines to order either party to pay his or her respective pro rata share of private schooling in the event a decision is made to once again enroll the children in private schooling. In other words, if defendant, who controls the education zone of decision making, decides to place the children in private schooling, he will be responsible for 100% of such cost unless plaintiff consents to contributing to the cost thereof; AND IT IS SO ORDERED.

The parties shall be responsible for the college expenses of the children in proportion to their respective incomes with the qualification that, unless otherwise agreed, such expenses shall not exceed the cost of attendance at a New York State university; AND IT IS SO ORDERED.

4.Extracurricular expenses. Although the court has ruled contrarily in its temporary orders, it now declines to treat extracurricular expenses, including camp expenses, as being legitimate "add-on" expenses. In the context of this case it makes more sense for each party to pay for the activities that he or she has the responsibility of choosing. Therefore, unless otherwise agreed by the parties in writing, plaintiff shall be responsible for paying for all of the extracurricular expenses for the summer and defendant shall be responsible for paying for all of the extracurricular activities during the school year. This type of arrangement ensures that neither party will choose a financially unreasonable activity with the expectation of payment from the other party; AND IT IS SO ORDERED. E.Dependency Exemptions

Lastly, it is the determination of the court that the parties shall split the dependency exemptions. Plaintiff shall claim the older child, but only if she is current with her child support obligation. Defendant shall claim the younger child. The parties shall fully cooperate with each other by executing all necessary papers and forms to permit the filing of these claimed exemptions, including without limitation IRS Form 8332; AND IT IS SO ORDERED.

3.SEPARATE PROPERTY

The court determines that the Amica insurance refund checks in the amount of $1,067.95 currently held in escrow by plaintiff's attorney's law firm, as well as the remaining check of [*16]$321.50, are plaintiff's separate property. It is undisputed that plaintiff paid the refunded premiums with separate earnings after the date of the commencement of the action. The value of the checks held in escrow shall be paid to plaintiff. In addition, defendant is directed to immediately endorse the remaining check of $321.50 and deliver it to plaintiff's attorney; AND IT IS SO ORDERED.

4.EQUITABLE DISTRIBUTION

"Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties" (Domestic Relations Law § 236 [B] [5] [c]). Equitable distribution does not require equal distribution (see Niland v Niland, 291 AD2d 876, 877), but rather is determined by evaluating the factors set forth in Domestic Relations Law § 236 [B] [5] [d].

A.Equitable Distribution Factors

1.The income and property of each party at the time of the marriage, and at the time of the commencement of the action: The parties were married on February 8, 1992. At the time of the parties' marriage, plaintiff was working full time at a Rochester corporation earning approximately $54,000 per year and owned a parcel of real property. At the time of the marriage, defendant was working as a police officer earning an unspecified income and owned real property in the City of Rochester. At the time of the commencement of the action, plaintiff was earning approximately $90,000 per year working for the same Rochester corporation. Plaintiff owned no significant separate property at the time of the commencement of the action. At the time of the commencement of the action, defendant was retired and collecting a pension in the amount of $40,119 per year. Just prior to the commencement of the action, defendant had just realized $36,333 from the sale of separate property he inherited from his mother.

2. The duration of the marriage and the age and health of both parties: At the time of the commencement of the action, the parties had been married approximately 12 years. Plaintiff is 43 years old and defendant is 57 years old. Both parties are in good health and do not suffer from any debilitating diseases or require special care.

3. The need of a custodial parent to occupy or own the marital residence and to use or own its household effects: Not applicable as the parties have no ownership interest in the marital residence.

4. The loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution: Not applicable.

5. Any award of maintenance: Not applicable.

6. Any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party: Plaintiff has always worked full time and has been a consistent wage earner for the family. Defendant worked full time until his retirement in 1999. Both parties shared in household and childcare responsibilities throughout the marriage. From his retirement in 1999 through the parties' separation in April 2004, defendant was a stay at home parent and assumed many of the childcare and household responsibilities. Defendant's contributions during this time period permitted plaintiff to maintain and advance in her career outside of the home.

7. The liquid or non-liquid character of all marital property: The majority of the marital [*17]property consists of pensions, deferred compensation/savings plans and stock accounts.

8. The probable future financial circumstances of each party: Plaintiff appears to have been continually advancing at her job and with her degrees and work experience, coupled with her relatively young age, her financial outlook for the future appears very favorable. The value of plaintiff's pension, savings investment plan and other investment accounts should continue to increase. Defendant is retired and receives a comfortable pension. However, the amount of that pension is significantly less than half of plaintiff's yearly income and, given plaintiff's salary increases, will soon be nearer to one third of what plaintiff earns. Defendant's financial circumstances have the potential of improving if he secures some type of post-retirement employment. Defendant also has significant funds in his deferred compensation plan, which should continue to increase.

9. The impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party: Not applicable.

10. The tax consequences to each party: Not applicable and, if applicable, not presented at trial.

11. The wasteful dissipation of assets by either spouse: Not applicable.

12. Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration: Not applicable.

13. Any other factor which the court shall expressly find to be just and proper: Not applicable. B.Distribution of Marital Assets

In consideration of the factors set forth above, the court determines that an approximately equal distribution of marital assets is the most equitable determination in the present case. The court therefore orders the following distribution:

1.Defendant's pension. Defendant's pension is currently in pay status at the rate of $40,119 per year or $3,343 per month. It is the court's determination that plaintiff is entitled to an award consisting of 50% of her Majauskas share of defendant's pension ([50%] x [$40,119 per year x 30%]/12). Based on the application of the Majauskas formula and rounding to the nearest dollar, plaintiff is entitled to $502 per month from defendant's monthly pension allowance. Plaintiff's entitlement shall be retroactive to the date of the commencement of the action and, as set forth above, such retroactive payments shall be an offset to plaintiff's child support obligation. Defendant shall also keep in place the "Ten Year Certain Option" naming plaintiff as beneficiary up to the amount of her entitlement. Within 60 days of the date of this decision, plaintiff shall prepare a Domestic Relations Order (DRO) to this effect to be signed by the court. Until such time as the DRO is implemented, plaintiff may further reduce her child support payments by $502 as set forth above; AND IT IS SO ORDERED.

2.Plaintiff's pension. The value of plaintiff's pension at the time of the commencement of the action was $45,125. It is the court's determination that defedant is entitled to an award consisting of 50% of his Majauskas share of defendant's pension (50% [$45,125 x 64%]). Based on the Majauskas formula and rounding to the nearest dollar, plaintiff is entitled to a total of $14,440 of plaintiff's pension. Defendant shall begin receiving a fixed percentage of plaintiff's pension benefits either at such time as plaintiff retires and is actually receiving a monthly allowance or, at defendant's option, after the earliest to occur of the first date for [*18]payments allowed under the plan or after plaintiff reaches the earliest retirement age under the pension plan. Defendant shall also be entitled to 50% of his Majauskas share of any pre-retirement death benefit and plaintiff shall be required to elect a "Ten Year Certain Option" naming defendant as beneficiary up to the amount of his entitlement. Within 60 days of the date of this decision, defendant shall prepare a Qualified Domestic Relations Order (QDRO) to this effect to be signed by the court; AND IT IS SO ORDERED.

3.Plaintiff's Savings Investment Plan and Defendant's Deferred Compensation Plan. The court determines that plaintiff is entitled to a 50% share of the date of commencement value of defendant's Deferred Compensation Plan ($119,317 x 50% = $59,659). The court likewise determines that defendant is entitled to a 50% share of the date of commencement value of plaintiff's Savings Investment Plan ($136,334 x 50% = $68,167). Defendant is therefore owed a net of $8,508. The court has determined, however, that this amount should be offset by what defendant owes plaintiff for his share of marital debt (see below) and therefore plaintiff is not required to transfer such amount to defendant; AND IT IS SO ORDERED.

4.Plaintiff's Stock Options and Stock Ownership Plan. Plaintiff's Stock Options had no value as of the date of commencement of the action and the Stock Ownership Plan had a value of only $83.00, of which the court declines to make an equitable distribution; AND IT IS SO ORDERED.

5.Tax refund monies. The parties shall each receive 50%, or $2,170 of the 2003 tax refund monies being held in an escrow account at plaintiff's attorney's law firm. Plaintiff's attorney's law firm shall issue defendant a check for his share within 15 days of the date of this decision; AND IT IS SO ORDERED.

6.Funds from sale of marital property. The $5,690.33 in funds from the sale of marital property that plaintiff is currently holding in an escrow account shall be divided as follows: $3,631.17 to plaintiff and $2,059.16 to defendant. The lesser amount to defendant takes into consideration an offset of $756, representing his remaining share of marital debt. Plaintiff shall issue defendant a check for his $2,059.16 within 15 days of the date of this decision; AND IT IS SO ORDERED.

7.Fidelity account in name of plaintiff. Plaintiff wishes the court to value her Fidelity account at $12,690 after taking into account $5,000 of separate property and a $14,000 post-commencement withdrawal that plaintiff claims was used to satisfy a loan incurred in her name during the marriage. Because plaintiff presented no documentary evidence regarding this loan but rather offered only her conclusory statements, the court finds that plaintiff did not present sufficient evidence regarding the nature of this loan and whether it should be properly classified as marital debt. The court will therefore utilize the date of the commencement value of $29,612 less $5,000 of plaintiff's separate property. It is the determination of the court that defendant is entitled to 50% of $24,612 or $12,306. The court has determined, however, that this amount should be offset by what defendant owes plaintiff for his share of marital debt (see below) and therefore plaintiff is required to transfer $0 of this account to defendant; AND IT IS SO ORDERED.

8.Edward Jones checking account. Defendant shall submit the $7.35 check to plaintiff for her required endorsement and defendant shall then be entitled to keep the $7.35. Both parties shall immediately notify Edward Jones in writing, with copies to each other, that the joint checking account is closed; AND IT IS SO ORDERED. [*19]

9.Marital personal property. The parties' disputed personal property issues were determined by arbitration, whereby plaintiff was directed to pay defendant $4,127.50. If plaintiff has not yet paid defendant that amount, she shall do so within 30 days of the date of this decision; AND IT IS SO ORDERED.

C.Distribution of Marital Debt

1.ESL joint checking account overdraft. Plaintiff paid off this $5,048 overdraft. The court determines that defendant is responsible for half of that amount or $2,534. Defendant's obligation, however, shall be offset (as set forth above) by what he has been awarded pursuant to the court's equitable distribution of marital assets. Defendant therefore owes plaintiff nothing in this regard; AND IT IS SO ORDERED.

2.ESL checking account in defendant's name. The parties shall split the $4,278 overdraft amount equally with each party responsible for $2,139. Defendant's obligation, however, shall be offset (as set forth above) by what he has been awarded pursuant to the court's equitable distribution of marital assets. Plaintiff shall therefore pay the entire overdraft amount within 90 days of the date of this decision and thereafter prepare a court order for removal of her name from the account, if it is so included thereon; AND IT IS SO ORDERED.

3.ESL Visa account in joint names. The parties shall split the $9,827 debt equally, with each party responsible for $4,913.50. Defendant's obligation, however, shall be offset (as set forth above) by what he has been awarded pursuant to the court's equitable distribution of marital assets. Defendant therefore owes plaintiff nothing in this regard. Plaintiff shall pay off the entire debt within 90 days of the date of this decision and then prepare a court order closing the account; AND IT IS SO ORDERED.

4.MBNA Mastercard (incorrectly listed as Fidelity Visa). The parties shall split the $13,640 debt equally, with each party responsible for $6,820. Defendant's obligation, however, shall be offset (as set forth above) by what he has been awarded pursuant to the court's equitable distribution of marital assets. Defendant therefore owes plaintiff nothing in this regard; AND IT IS SO ORDERED.

5.American Express account in plaintiff's name. The parties shall split the $10,386 debt equally, with each party responsible for $5,193. Defendant's obligation, however, shall be offset (as set forth above) by what he has been awarded pursuant to the court's equitable distribution of marital assets. Defendant therefore owes plaintiff nothing in this regard; AND IT IS SO ORDERED.

Due to offsets, defendant's obligations regarding the above-listed marital debts amount to $0. Any other debts, loans, obligations or charge accounts in the individual name of plaintiff or defendant not specified in the court's Findings of Fact and Conclusions of Law shall be paid by her or him, without payment or contribution from the other party; AND IT IS SO ORDERED.

5.ATTORNEY'S FEES

The court does not feel that it is an appropriate exercise of its discretion to award plaintiff attorney's fees. Although plaintiff has substantial debt, she also earns a substantial salary and has an earning capacity well above that of defendant. Furthermore, plaintiff has access to trust assets for the benefit of herself and her children. Although defendant's pro se position undoubtedly slowed the pace of the trial, the court does not believe that defendant proceeded pro se with the aim of engaging in dilatory tactics. Plaintiff's request for attorney's fees is therefore denied; AND IT IS SO ORDERED. [*20]

6.LAW GUARDIAN'S FEES

The court feels it to be the most equitable determination that each of the parties be responsible for paying 50% of the attorney fees, witness fees, costs and disbursements of the law guardian as set forth in his final statement of services rendered in this matter; AND IT IS SO ORDERED.

AND IT IS FURTHER ORDERED, that this Decision and Order shall be supplemental to the Judgment of Divorce granted to plaintiff on August 3, 2004 and filed with the Monroe County Clerk on August 6, 2004;

AND IT IS FURTHER ORDERED, that counsel for plaintiff is hereby directed to submit Findings of Fact as well as all other papers necessary for the Judgment Roll, in accordance with this Decision and Order within 60 days of the date hereof.

Dated:January 3, 2006 Rochester, New York

____________________________

Hon. Elma A. Bellini

Acting J.S.C.