Singh v Singh

[*1] Singh v Singh 2012 NY Slip Op 51390(U) Decided on June 26, 2012 Supreme Court, Queens County Brown, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 26, 2012
Supreme Court, Queens County

Michele Singh, Plaintiff,

against

Jagtar Singh, Defendant.



06486/2009



Attorney for Plaintiff:

Vessa & Wilensky,

P.C.626 RexCorp Plaza, 6th Floor

Uniondale, New York 11556

516-248-8010

Attorney for Defendant:

Manmohan K. Bakshi. P.C.

2 Mason Drive

Manhasset, New York 11030-2007

516-365-1305

Pam Jackman Brown, J.

BACKGROUND

The Plaintiff/wife (hereinafter "Plaintiff"), residing at 209-14 Hillside Avenue, Queens Village, NY 11427, commenced this action on March 17, 2009, seeking an absolute divorce and ancillary relief. Defendant/husband (hereinafter "Defendant"), residing at 99-05 211th Street, Queens Village, New York 11428, interposed an Answer with affirmative defenses on August 27, 2009. The parties consented to a judgment of divorce on the grounds of constructive abandonment to Plaintiff.

A trial was held on the ancillary matters including maintenance, equitable distribution of assets, debts of the marriage, custody and visitation of the parties' children, child support and attorney fees.

FINDINGS OF FACT AND APPLICABLE LAW

Both parties argue credibility. In fact, neither came with clean hands and both lack credibility and failed to produce sufficient documentary evidence to support their position. Both sides made bald face accusations and conclusions without credible [*2]evidence. The burden of proof is on Plaintiff to establish her equitable distributive share, entitlement to maintenance and attorney's fees. Defendant has the burden of proof to show entitlement to maintenance and attorney's fees. Based on the adduced credible and sparse evidence, this Court pieces together a semblance of logical reasoning and delineates and decides as follows:

The parties were married on March 29, 1997, in New York State in a civil ceremony and have two children of the marriage namely: J. S. and S. S. Plaintiff, whose maiden name is "WERTS", and age 36, resides at 209-14 Hillside Avenue, Queens Village, New York 11427. Defendant, age 37, resides at 99-05 211th Street, Queens Village, New York 11428. The parties resided together from date of marriage until June 2006 at 99-05 211th Street, Queens Village, NY 11429 (hereinafter referred as "marital residence"). Thereafter, Plaintiff with the children relocated to an apartment located 209-14 Hillside Avenue, Queens Village, NY 11427 (hereinafter referred as "apartment"). The personal property was divided at the time of separation. The apartment is owned by Defendant's brother. Defendant continued residing at the marital residence.

Plaintiff came into the marriage with $700.00 cash savings and $25,000.00 in student loan debt. Defendant started the marriage with approximately $35,000.00 in separate savings, a car and no debt. Defendant paid off Plaintiff's student loan debt of $25,000.00 within one year of the marriage from his separate savings.

The marital residence is a one family dwelling and was jointly purchased by Defendant and his father. Defendant contributed $10,000.00 from his separate savings and $3,500.00 from marital assets toward the down payment of this property and it was purchased with a mortgage. The parties and their two children together with Defendant's extended family resided together at the marital residence. Both the parties and Defendant's extended family contributed toward the mortgage, household expenses along with providing services toward the upkeep and maintenance of the marital premises. The parties used marital funds toward the marital residence mortgage, other carrying charges and household expenses. During the marriage, with pooled financial resources with family members, Defendant and his extended family invested in buying and selling real estate and a commercial business. Defendant's financial contribution was from marital assets. This was the marital lifestyle of Plaintiff and Defendant in the marital residence from the beginning of the marriage until the date of separation.

Both parties submitted net worth statements and testified to income. Their testimony contradicted their filing on their individual 2010 tax returns and their net worth statements.Plaintiff is 36 years old in good health. She has one and one half years of college education, and a certificate in computer training. She is presently employed at CVS as a head cashier with current annual income of $21,829.00. Defendant is 37 years old and in good health. Defendant is a high school graduate from India. Defendant is self employed as a landscaper and investor. Defendant's current annual income is [*3]$19,665.00. During the marriage, the parties continually filed joint tax returns. The last joint tax return was 2004 and it shows an adjusted gross income of $28,195.00. Plaintiff did all the computer work and prepared the financial books and ledgers for the business.

Both Plaintiff and Defendant worked full time and jointly deposited their income into the same joint account from March 1997 to September 2005. In October 2005, Plaintiff opened a separate bank account where she separated and deposited her income from the joint bank account. In June 2006, the parties separated and Plaintiff with the children vacated the marital residence and moved into an apartment owned by Defendant's brother. Defendant continued to reside with his extended family members at the marital residence. Later, Defendant had a third child not of the marriage. In March 2009, Plaintiff commenced this action.In September 2009, Defendant opened a separate bank account. The joint bank account continued and remained accessible to Plaintiff and Defendant.There is no evidence of tax returns, for the relevant years, 2005, 2006 or 2009.There is no evidence of Plaintiff's separate bank accounts statements. In evidence are Defendant's separate bank account statements for September 2009 to April 2010. Also, in evidence are the joint bank account statements from December 2008 to July 2011, except the months December 8, 2010 to June 7, 2011.

Beginning June 2006, Plaintiff executed a written lease for the apartment with Defendant's brother for a monthly rent of $1,300.00. However, Plaintiff agreed and the bank statements showed $1,200.00 was paid toward the rent.After the separation, there is no dispute that Defendant paid all the apartment carrying charges and Plaintiff had an additional use of $500.00. Sometime on or about the date of commencement of this action, Defendant stopped making any payments.

In September 2009, Defendant consolidated the accounts and the proceeds from the investments to his separate account, but left opens the joint bank account. The total consolidation was $82,203.04. The proceeds in the sum of $73,755.43, from the landscaping and gas station, were deposited by Defendant. In the same month, Defendant transferred into the joint bank account $34,000.00 and for subsequent months made large transfers into the joint bank account. The joint bank account included Defendant's income and investment proceed. The joint bank account shows cancelled checks for payments toward child and spousal support, rents, utilities, insurance, credit card payments and attorneys' fees.

The joint account balance as of the commencement was $336.42. On December 1, 2009, after the commencement, a pendente lite agreement was reached for Defendant to maintain the status quo on Plaintiff's apartment by paying the monthly rent of $1,200.00 and, in addition, pay monthly child and spousal support in the sum of $600.00 and Plaintiff's monthly car insurance in the sum of $209.14. The agreement was retroactive to October 2009, the date of Plaintiff's application. Additionally, on January 21, 2010, Defendant was ordered to pay Plaintiff's attorney's fees in the amount of $18,950.00. All payments were satisfied. It is undisputed that the marital assets were used to comply [*4]with the December 2009 pendente lite agreement and the Order for Plaintiff's attorney's fees from the joint bank account. It is also undisputed that Plaintiff did not contribute financially to the joint bank account or her expenses after September 2005.

As of the date of the pendente lite agreement, the balances in the accounts are as follows: 1. The joint bank account was $1,749.88.2. The balance in Defendant's separate bank account was $82,255.36.3. There is no evidence of Plaintiff's bank accounts.

As of the date of trial the parties testified to the balances in the accounts as follows: 1. Plaintiff's two separate bank accounts had a total balance of $235.00.

2. Defendant's separate bank statements had a balance of $539.98.

3. The joint bank account balance was $300.00.

Plaintiff's name did not appear on any of the investment documents. This was a strategic decision made because of Plaintiff's bad credit rating. Although Plaintiff's name was not on any of the investment transfers, ownerships and financial documents, this factor alone does not demonstrate that Plaintiff is not entitled to her equitable distributive share in the investments. All the properties and businesses were acquired during the marriage and Plaintiff contributed her income to the joint bank account. The presumption is that they are all marital property. Other than the property located at 224-34 Furbury Avenue, Bellerose, NY, which Defendant claimed to be his brother's, there is no evidence to show that any of the other investments were separate property.

Impute Income

During the marriage, Defendant purchased and sold two investment real properties and one commercial business. Defendant also had a landscaping business and was a co-owner of the marital residence. Plaintiff seeks to have income imputed to Defendant which she claims Defendant is hiding and/or under reporting. "A court need not rely upon a party's own account of his finances, but may impute income based upon the party's past income or demonstrated future potential earnings. The court may impute income to a party based on his or her employment history, future earning capacity, educational background, or money received from friends and relatives. Where a party's account is not believable, the court may impute a true or potential income higher than alleged (Duffy v Duffy, 84 AD3d 1151-1551-1152 [2d Dept 2011] quoting Steinberg v Steinberg, 59 AD3d 702, 705 [2d Dept 2009]; Wesche v Wesche, 77 AD3d 921, 923 [2d 2010]; Lilikakis v Lilikakis, 308 AD2d 435, 436 [2d Dept 2003]).

The parties filed joint tax returns through 2004 and Plaintiff had knowledge of all the financial paper work and taxes prepared by their accountant. The proceeds from the [*5]sales were deposited into the joint bank account or commingled with Defendant's income as shown in the September 2009 bank statements. As well, Plaintiff was very much an integral part in the investment business and its finances. She was involved with and/or aware of the purchasing and sales of all the properties and businesses. Both parties contributed in different respects to the investment ventures of buying and selling the properties and businesses. It is clear from the evidence that Defendant was up front with the negotiations and Plaintiff was on the back end with the paper work. Plaintiff claimed she had no knowledge. However, the evidence showed differently. Poignantly, Plaintiff enjoyed the benefits of the monies deposited into the joint bank account and used to pay all the marital expenses and all her expenses after the separation. Plaintiff was sophisticated to know when to cease contributing and secrete her income. The parties lived a modest life style which has not changed. The parties always lived and pooled their monies with family members for the investments. The children attended and continued to go to public school. The parties did not take any lavish vacations or have personal property that went beyond their incomes range. They made marital decisions of what was reported on their tax returns and shown in the bank statements. Based on the reporting to IRS and the bank statements, there is no credible evidence for this Court to impute any additional income other than what is shown from the evidence.

Wasteful Dissipation

Both parties argue wasteful dissipation of marital assets. Plaintiff testified that the transfers of properties and the sales of the commercial businesses were wasteful dissipation of marital assets in contemplation of divorce. On the other hand, Defendant claims wasteful dissipation of marital assets based on Plaintiff's failure to economically contribute to the family from October 2005 and incurring an additional debt of $24,000.00 in credit card bills. It is well settled law that the wasteful dissipation of assets by either spouse is one of the factors which may be considered in determining equitable distribution of marital assets (O'Sullivan v O'Sullivan, 247 AD2d 597, [2d Dept 1998]). Money used to pay legitimate expenses is not wasteful dissipation. See, Gonzalez v Gonzalez, 291 AD2d 373 (2d Dept 2002).

The last investment real property was sold in 2005, the commercial property was sold November 2009. Plaintiff commenced this action in March 2009. Her argument lacks credibility. The bank statements show the incomes that came from the investments and used to pay marital expenses during the marriage and Plaintiff's expenses after the separation. Therefore, Plaintiff's claim for wasteful dissipation is without merit.

Indeed, Plaintiff continued to be employed full time at CVS and within the same income range as was reported in her 2010 tax return. There is no evidence showing Plaintiff's income or savings from 2005 and forward. Plaintiff testified that she incurred credit card debts in the sum of $24,000.00 to purchase necessities based on the short fall of Defendant's contribution. However, no bills or credit card statements were put in evidence to show the necessities incurred for the family in the amount of $24,000.00. [*6]There is weight to Defendant's claim for wasteful dissipation given that Defendant paid the marital expenses and Plaintiff's expenses together with child support. Defendant is entitled to a relative credit, which is addressed below.

Equitable Distribution

Marital property is defined in New York Domestic Relations Law (hereinafter referred to as "DRL") § 236(B)(1)(c) as "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held." The statute provides that separate property is not included within the definition of marital property.

New York Domestic Relations Law Section 236(B)(1)(d) defines separate property as: (1) property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse;(2) compensation for personal injuries;(3) property acquired in exchange for the increase in value of separate property, except to the extent that such appreciation is due in part to the contribution or efforts of the other spouse;(4) property described as separate property by written agreement pursuant to subdivision three of this part.

DRL 236(B)(5)(a) provides that in matrimonial proceedings, the court shall "determine the respective rights of the parties in their separate or marital property." While the statute provides that separate property shall remain as separate property, marital property shall be equitably distributed, considering the circumstances of the case and the parties. To determine an equitable distribution of the property, DRL § 236(B)(5)(d) requires that the court shall consider: (1) the income and property of each party at the time of the marriage, and at the time of the commencement of the action;(2) the duration of the marriage and the age and health of both parties;(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;[*7](4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;(5) the loss of health insurance benefits upon dissolution of the marriage;(6) any award of maintenance under subdivision six of this part;(7) 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 and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;(8) the liquid or non-liquid character of all marital property;(9) the probable future financial circumstances of each party;(10) 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;(11) the tax consequences to each party;(12) the wasteful dissipation of assets by either spouse;(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;(14) any other factor which the court shall expressly find to be just and proper.

Looking to DRL § 236(B)(1)(c), it is clear that all property acquired during a marriage by either spouse, with the exception of property in specifically delineated categories, is considered to be marital property. The Court of Appeals has held that marital property should be "construed broadly in order to give effect to the economic partnership' concept of the marriage relationship recognized in the statute" (Price v Price, 69 NY2d 8, 15 [1986]). On the contrary, separate property, "which is described in the statute as an exception to marital property . . . should be construed narrowly (Id at 15). Thus, the structure of DRL § 236, "creates a statutory presumption that all property, unless clearly separate, is deemed marital property' and the burden rests with the titled spouse to rebut that presumption" (Fields v Fields, 15 NY3d 158, 163 [2010], quoting DeJesus v DeJesus, 90 NY2d 643, 652 [1997]).

The investment properties were acquired with the financial assistance of Defendant with marital assets coupled with Defendant's extended family financial contribution. Although Plaintiff's name was not on investment documents that was a strategic business decision for the procurement of loans. All the investments were during the marriage and deemed to be marital property. There is no evidence to show that any of the investments are separate.

In comparison to the community property theory, in which "mathematical precision is the guidepost," (Rodgers v Rodgers, 98 AD2d 386, 391 [2d Dept 1983]), under equitable distribution, property acquired during the marriage must be distributed [*8]"in a manner which reflects the individual needs and circumstances of the parties" (Id. at 391). The fundamental purpose of the Equitable Distribution Law is the recognition of marriage as an economic partnership in which "both parties contribute as spouse, parent, wage earner or homemaker" (Rodgers at 391). Under the equitable distribution theory, the Court "possesses flexibility and elasticity to mold an appropriate decree because what is fair and just in one circumstances may not be so in another" (Id. at 391).

The parties engaged in several investment buying and selling ventures during the marriage. All the properties and businesses were acquired during the marriage and sold before the commencement date. The parties always resided with family members and lived a modest lifestyle. The combined income in 2004 was $28,195.00. The combined income in 2010 was $41,494.00 (Plaintiff's income $21,829.00 and Defendant's income $19, 665.00). From date of marriage until September 2005, the parties worked together with their joint incomes. As of October 2005, there was no contribution from Plaintiff in any respects. Although Plaintiff is entitled to equitable distribution from value of the properties and businesses, there is no evidence of value for any of the relevant time periods of sales except what was placed in evidence from the bank statements and testimony. Plaintiff seeks to have an adverse inference inferred against Defendant for his failure to produce documents and witnesses. However, this argument goes against both sides. Only the parties testified. There were no other witnesses, experts or expert reports and no credible explanation for not producing relevant and credible evidence. Plaintiff's and Defendant's equitable share is determined as follows:

99-05 211 property (marital residence)

This property was purchased September 1998 between Defendant and his father for approximately $207,000.00 as equal co-owners. Defendant contributed $13,500.00 toward the purchase of this property of which $10,000.00 was from his separate savings and $3,500.00 from marital assets. Plaintiff has not shown any proof to dispute this claim. There is no evidence regarding what percentage Defendant's father contributed toward the down payment. This property was transferred in August 2005 to Defendant's father for a value of $300,000.00. Defendant testified incredulously regarding the amount remaining on the mortgage. But, both sides acknowledge that there was a mortgage and marital assets were used to pay the monthly mortgage and carrying charges on this property. Defendant testified that, after the transfer, the equity was a total of $180,000.00. Therefore, Defendant's fifty percent (50%) share is $90,000.00.

There is no credible proof why Defendant did not receive his equity share after the transfer. Defendant explains that his father made most of the repairs and his brothers contributed to the carrying charges and mortgage payments of the property without any contribution of Plaintiff. However, there is ample proof that marital assets were used to contribute toward the mortgage and household expenses from the joint bank account in which Plaintiff's income was fully deposited. In addition, the parties resided together in the property with Defendant's extended family and together they all provided services and [*9]benefit to the household. Therefore, the equity values of Defendant's one half share, in the amount of $90,000.00, shall be imputed to him.

Defendant is awarded a credit of $10,000.00 as separate property contributed toward the down payment of this property in 1998. The remaining Defendant's share is $80,000.00.In addition, Defendant is awarded a credit of $25,000.00 for the student loan debt paid off on behalf of Plaintiff by Defendant in or about 1998 leaving a balance of $55,000.00. Plaintiff is entitled to one half of the remaining balance in the sum of $27,500.00. Any payments made toward the mortgage were made from marital assets which included both incomes. This Court is not marshaling the spending since it was the lifestyle of the parties how they managed their incomes and expenses. Although Plaintiff acknowledged she stopped contributing her income in October 2005, the property was transferred in August 2005.

Therefore, Plaintiff is awarded an equitable distributive share of $27,500.00 from this property.

Singh Landscaping Business

Defendant purchased this business approximately 2001 or 2002 with his brother. Defendant sold his interest in the business to his brother approximately 2004 for $40,000. The proceeds were distributed some years after and it was deposited into the joint account in September 2009. The parties filed joint tax return for 2004 deeming the sale as "good will". There is no tax return for 2009 to show what was the reporting to IRS when the proceeds were actually received. The parties were married during the time period the business was opened and sold. The proceeds from the sale are deemed to be marital funds. Since this business is a marital asset, the proceeds from the sale are also marital and Plaintiff is entitled to one half in the sum of $20,000.00.

90-14 215 Place, Queens Village, NY

This property was purchased in November 2001 for approximately $245,000.00 with some of the down payment contribution from marital assets. There is no proof regarding what portion of the down payment was from marital assets. A mortgage was obtained in the amount of $196,000.00 with monthly mortgage payment of $1,900.00. This property was rented at $1,300.00 per month. The difference of the mortgage was paid for from the marital assets. This property was sold May 2005 netting a sum of $45,000.00. Defendant testified that this property was sold at a loss from the purchase price and that the amount of $45,000.00 was deposited into the joint bank account. The closing document for the sale placed into evidence lacks credibility to show the closing transaction. There is no tax return for the years 2001 to 2003 and 2005 in evidence. The tax returns for 2004 show that the rental income, mortgage interest and loss of income from this property were reported to IRS and the parties received a benefit from their tax filing. Based on this filing, there was no excess rental income generated from this property. There is no bank statement in evidence for 2005. As of the date of commencement of this action, the joint bank account had $336.42. The burden of proof [*10]is on Plaintiff to show that proceeds from this sale remained in the joint account as of the date of commencement in March 2009. She has failed to sustain her burden. There is no evidence to show value or equity for equitable distribution. There is no award for equitable distribution to Plaintiff for this property.

Gas Station in Wisconsin

Defendant, with his brothers, joined in 2004 to create a corporation under the name of Ricky Petroleum, LLC operating a gas station under the name of Jason Petroleum Inc. The cost for both entities was a total $850,000.00. Defendant paid $16,000.00 from marital funds and received a ten percent (10%) share of the business. In July 2009, both businesses were sold and Defendant received his ten percent (10%) share of the proceeds in the amount of $33,755.43. This sum was deposited into the joint bank account. Since marital assets were used to purchase this business, Plaintiff is entitled to an equitable share of one half of the sale proceeds in the sum of $16,877.71.

209-04 Hillside Avenue:

Plaintiff moved into this property in May 2006 under a lease with Defendant's brother for a monthly rent of $1,300.00. The bank statements showed Defendant paid $1,200.00 monthly. Although the parties were separated, Defendant paid all the rent for this apartment. After the filing of this action, Defendant continued to pay the rent as per the pendente lite agreement dated December 1, 2009. Plaintiff acknowledged that Defendant paid her rent from the joint account and there was no financial contribution by her. Plaintiff claimed that Defendant was not authorized to use marital assets to satisfy the pendente lite payments. Defendant seeks Plaintiff's contribution for the rents paid or the arrears accumulated for the apartment.

Marital Assets and Expenses

The balance in the joint account at the time of the pendente lite agreement was $1,749.88. The sale proceeds, in the sum of $73,755.43, for the marital property was deposited into Defendant's separate account and transferred into the joint account to make the payments under the pendente lite agreement, Plaintiff's attorney's fees and his attorney's fees.

Pursuant to DRL § 236 Part B subsection 2(b)(1), which states, inter alia, that there must be consent to use marital funds. There is an exception for use of marital funds if it is used for the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action. However, there is no authorization to use marital assets to make pendente lite payments unless by agreement. It is well settled in the Appellate Division, First Department, that pendente lite payments should be paid from the payor's income, not marital funds. (See, Elkaim v Elkaim, 176 AD2d 116,118 [1st Dept 1991]; McInnis v McInnis, 23 AD3d 241, 242 [1st Dept 2005]; Azizo v Azizo, 51 AD3d 438, 440 [1st Dept 2008]). The trend in the Appellate Division, Second Department disfavors the use of marital funds to meet pendente lite obligations and requires that the payor reimburse the other party for their equitable share of marital [*11]funds used to satisfy pendente lite obligation. (Many v Many, 84 AD3d 1036, 1037 [2d Dept 2011]).

The pendente lite agreement was effective October 2009 and the order for attorney's fee was January 2010. The total proceeds from the sales in the amount of $73,755.43 are marital assets.Plaintiff's one half equitable share was $36,877.71. Defendant's separate account included the marital assets from the investments and his income. It is undermined what portion of the money in the accounts represented Defendant's income and what was the marital asset portion transferred for payments. Pursuant to DRL 236 (B)(7)(a), there is no credit for sums paid for child support. See also, Sivigny, Jr. v Sivigny, 213 AD2d 243 [1st Dept1995].There is no dispute that Defendant transferred funds into the joint account to satisfy the pendente lite agreement and all payments were made to date. However, Defendant has failed to show an accounting of what portion of the payments were from his separate income. Therefore, Plaintiff is entitled to a credit of her one half equitable share from the investment proceeds in the sum of $36,377.71.

The total expenses paid by Defendant from the date of the pendente lite agreement to date of trial is $49,264.00 (representing 23 months x $1,318.00 [$1,200.00 for rents and $118.00 for maintenance] plus Plaintiff's attorney's fees of $18,950.00). Of this total, Plaintiff was entitled to her distributive share in the sum of $36,877.71 leaving an excess payment of $12,886.29 in favor of Defendant. Defendant is entitled to a credit of his equitable share paid in excess of Plaintiff's share.

224-34 Furbury Avenue, Bellerose, NY

Defendant purchased this property in November 2004 for $350,000.00 with two mortgages for a total of $315,000.00 and it was sold approximately one year later in November 2005 for $450,000.00. Defendant testified that this property was purchased for his brother with the brother's money. Further, Defendant testified that he purchased the property in his name because his brother held other mortgages in his name and would not have qualified for this mortgage. This property was purchased as a one-family dwelling and converted to a two-family dwelling at a conversion cost of approximately $140,000.00.

Although Defendant claims this property was purchased for his brother and all the costs for renovation were from loans and his brother's funds, there is no proof that there was an agreement between Defendant and his brother or that any payments were made by his brother. Conversely, there is no proof of whom and how the monthly mortgage was paid. Both sides testified that this property was acquired with two mortgages and that it was renovated from one-family to two-family dwelling and sold within a year of purchase right after the renovation. Other than the two mortgages, there is no proof what was the source of money for this property's renovation expenses.

The burden of proof is on Plaintiff to show that marital assets were used for this property and that she contributed in some way to this property for equitable distribution. [*12]There is no evidentiary showing that marital assets were used, the value of this property at time of purchase and at time of sale. There is no evidence to show Plaintiff contributed in any respects to this property. Plaintiff has failed to sustain her burden and there is no equitable award to Plaintiff.

Premarital Debt

Prior to the marriage, Plaintiff incurred a debt of $25,000.00 for her education at the University of Hartford in 1993 and Mount Ida College in 1995. The evidence shows that based on the income of Plaintiff and the marital expenses, this debt was paid from Defendant's separate savings prior to the marriage. Plaintiff's college debt was paid off by Defendant in 1998. Therefore, Defendant is entitled to a credit of $25,000.00 toward his equitable distribution which was deducted from the proceeds of the sale from the marital residence.

Credit Card Debts

Plaintiff seeks contribution for the credit card debts incurred by her to Providian and Capital One accounts in the sum of $24,000.00. However, Plaintiff has failed to provide any proof regarding the purchases for these debts. Defendant paid all of Plaintiff's rent, child and spousal support, her car insurance and her attorney's fees. There is no proof what marital necessities were purchased with the credit cards. Therefore, Plaintiff shall be one hundred percent (100%) responsible for her credit card debts.

Automobile

During the pendency of this action, Defendant relinquished his rights to the automobile for a value of $12,400.00 in the agreement dated March 10, 2011. For his contribution, Defendant was allowed to withdraw the sum of $9,400.00 from the joint bank account and also be entitled to an offset from Plaintiff's equitable distribution award in the amount of $3,000.00. Therefore, this amount of $3,000.00 shall be deducted from Plaintiff's total equitable distribution.

Rental Arrears

Defendant claimed that they are rental arrears owed to his brother for the apartment occupied by Plaintiff. Introduced into evidence is the written lease signed between Plaintiff and his brother for a monthly rent of $1,300.00. However, there is no proof that this rental agreement is in default. There was no testimony from Defendant's brother. In addition, Defendant lacks standing to seek relief for his brother. Defendant has claimed credit for making the rental payments from the joint account. Accordingly, there is no award for rental arrears.

IRA Account

The Chase IRA account shall be closed and be distributed equally between the parties. Both parties shall cooperate and surrender these accounts and any tax or other associated costs/consequences shall be shared equally between the parties. As of July 2011, the balance in the IRA account was $11,039.75.

Proceeds from the Judgment [*13]

The parties agree that the pending money judgment in Nisar Yusuf, et al under Index No.3338/2008 in the sum of $30,930.18 shall be divided equally after all fees and costs.

Furniture and Personal Property

Both sides seek contribution and/or return of the personal property acquired during the marriage in the sum of $10,000.00. However, there is no evidence introduced at trial regarding the existence of such property and value of the property.The credible evidence showed that Plaintiff removed furniture and personal property from the marital residence with Defendant's consent when the parties separated.Accordingly, both claims for personal property are denied. Plaintiff and Defendant shall retain whatever personal property are in their individual possession.

Bank Accounts

1. Plaintiff shall retain the balances in her account which she testified to be $235.00.

2. Defendant shall retain the balance in his separate account which is $539.98 and the joint bank account since there was no contribution to Plaintiff after the separation in 2005.

Maintenance

This action was commenced prior to the effective of the maintenance guidelines. Both sides seek maintenance. Pursuant to DRL §236, there may be an award for maintenance where the party seeking maintenance shows they are incapable of working, did not misappropriate substantial assets or did not receive a substantial equitable distributive award. See, Cuozzo v Cuozzo, 2 AD3d 665 [2d Dept 2003] quoting Ortiz v Ortiz, 267 AD2d 991, [4th Dept 1999]; Militana v Militana, 280 AD2d 529[2d Dept 2001]. The parties were married in 1998 and this action was commenced in 2009. During this period, the parties were separated in 2005 without joinder of income. Plaintiff is 36 years and in good health. Defendant is 37 and in good health. Plaintiff's income is $21,829.00 and Defendant's income is $19,665.00. There is no evidence for this Court to impute any additional income to either Plaintiff or Defendant, other than what was stated on their 2010 tax return.Plaintiff has a formal college education and Defendant has high school education.

Plaintiff continues to be gainfully employed full time. Plaintiff received temporary maintenance under the pendente lite agreement from October 2009. Plaintiff has not explained her income from the date of separation through the present, more than six years.There is no showing that Plaintiff was unable to meet her obligations at the time of the pendente lite agreement from her income she accumulated. Plaintiff also received a substantial equitable distributive award.Defendant is a landscaper and an investor and is capable of earning sufficient income for his support. Defendant now has another child born after the separation and argues that this is an additional burden on him.This argument has no merit or relevance to Defendant's maintenance claim. [*14]Defendant has not shown any need for maintenance.Based on all the above, there is no award of maintenance to either party and the pendente lite agreement is terminated as of the date of Decision.

Legal and Residential Custody

The Court, pursuant DRL §240 (1) (a-1) finds and as agreed by both Plaintiff and Defendant that they both shall have joint legal custody of the children, J. S. and S. S. with residential to Plaintiff/mother. If the parties cannot agree, after reasonable consultation, on health, education, extracurricular activities and religion, Plaintiff makes the final decision. Plaintiff must provide, within two (2) days of receipt, copies of all medical, educational documents, names and addresses of all health care providers and teachers or child care providers to Defendant/father. Defendant must be registered or listed as parent and emergency contact on all documents regarding the children. Defendant shall have equal access to all doctors, teachers and providers or care givers for the children. All emergencies with the children must be immediately communicated to the other parent within and no less than two (2) hours thereafter.

Although Plaintiff states that she resides at 209-14 Hillside Avenue, the evidence shows that Plaintiff is residing at her mother's address in Great Neck with the children. Plaintiff must provide to Defendant proof of the correct address where the children are residing within ten (10) days of filing of this Decision and Order.

Child Support

Pursuant to Child Support Standards Act (hereinafter referred as "CSSA"), DRL §240, provides that the child support shall be set at the applicable rate of 25% for the two children, J. S, dob 1/22/1999 and S. S, dob 11/21/2003, payable by Defendant to Plaintiff who has residential custody. From the 2010 tax returns for each party, Plaintiff's income is $21,829.00 and Defendant's income is $19,665.00. Child support payments shall take affect from the date of commencement and continue until the age of emancipation. Defendant shall be credited for any payments made.

If both parents are unavailable to provide child care and the custodial parent incurs child care expenses, then child care expenses shall be paid for 50/50% to each parent. All issues with respect to college expenses are reserved for the parties to make further application before the applicable court at the relevant contemporaneous time to college application.

Visitation/Parenting Plan

Effective as of the date of signing of the judgment of divorce, the following parenting plan is as follows: The proposed parenting plan submitted by Plaintiff shall be adopted and incorporated into the findings and judgment of divorce.

Health Insurance

The parties were qualified and had Medicaid health insurance for the family.As the residential custodial parent, Plaintiff is responsible parent to maintain health insurance for the parties' children. All out of pocket and unreimbursed medical [*15]cost shall be shared equally between Plaintiff and Defendant. The parties must agree on all out of network medical treatment.A Qualified Medical Child Support Order (hereinafter referred as "QMCSO") must be submitted showing name and identification number for the health insurance plan.

Life Insurance Policy

The MetLife Insurance policy in effect shall be increased to $150,000.00 with $75,000.00 for each child until the age of emancipation for the purpose of child support obligations. Defendant shall maintain life insurance and name the children as the beneficiary for the remaining of child support obligations and name Plaintiff as trustee. Upon emancipation, the life insurance may be changed removing the emancipated child and the trustee from the policy.

Counsel Fees and Costs

DRL § 237 provides that in an action for a divorce the court may award counsel fees "to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and the respective parties." See, Prichep v Prichep, 52 AD3d 61 [2d Dept 2008]. Indigence is not a prerequisite to an award of counsel fees pursuant to DRL § 237. See, DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987].In considering an application for an award of counsel fees, the court shall consider the "equities and circumstances" of the case before it (Basile v Basile, 122 AD2d 759 [2d Dept 1986]). Based on the net worth statements, the credibility of both sides, the lack of any financial records to show Plaintiff's income and the relative ability of both sides to acquire adequate income together with the distributive award, the Court finds no additional award of attorney fees to Plaintiff. Plaintiff is the monied spouse. The Order dated January 21, 2010 awarding interim attorney's fees in the amount of $18,950.00 to Plaintiff is reallocated back to Defendant as a credit. See, Prichep v Prichep, 52 AD3d 61, 66. There is no award to Defendant for attorney fees since Defendant has not shown that he was unable to adequately defend himself in this action and that he did not have available income to defend himself in this proceeding based on the investment incomes he acquired.

Accordingly, both sides' applications for attorney's fees are denied and each party shall be responsible for their individual attorneys' fees. In addition, all costs associated with preparation of the final papers shall be shared equally.

Equitable awards

Plaintiff's total equitable award is the sum of $64,377.71. Defendant has a credit in the sum of $34,835.29. Accordingly, Plaintiff's total equitable share is $29,542.42. A money judgment is issued in favor of Plaintiff in the sum of $29,542.42 against Defendant.

CONCLUSIONS OF LAW

The parties have satisfied the residence requirement pursuant to DRL § 230. Both parties [*16]shall be responsible for their individual health insurance coverage upon the signing of the Judgment of Divorce pursuant to DRL § 255. Plaintiff has executed her DRL § 255 which shall be incorporated into the final papers. Defendant must submit a properly executed DRL §255 affidavit with the final papers for the judgment of divorce.

GROUNDS: A judgment of divorce pursuant to DRL §240 is granted on the grounds of constructive abandonment to Plaintiff, MICHELLE SINGH and that she may resume her maiden name "WERTS" as she so desires.

EQUITABLE DISTRIBUTION: As per the findings outlined above.

MAINTENANCE: There is no award for maintenance.

CUSTODY: Joint legal custody with residential custody to Plaintiff/mother and visitation to Defendant/father as per the parenting plan adopted and incorporated herein.

CHILD SUPPORT: The child support shall be pursuant to CSSA guidelines. A QMCSO must be submitted with the final papers.

COUNSEL FEES: There is no award for counsel fees.

The above constitutes the Decision and Order of the Court. Settle judgment in accordance with this Decision and Order together with the applicable CSSA guidelines' worksheet for judgment of divorce.

SO ORDERED,

Dated: June 26, 2012

Queens, New YorkPam Jackman Brown, J.S.C.