A.C. v J.O.

[*1] A.C. v J.O. 2013 NY Slip Op 51323(U) Decided on August 12, 2013 Supreme Court, Kings County Silber, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 12, 2013
Supreme Court, Kings County

A.C., Plaintiff,

against

J.O., Defendant.



53056/11



Plaintiff:

Pamela M. Sloan, Esq.

Aronson Mayefsky & Sloan, LLP

485 Lexington Avenue

New York, New York 10017

Defendant:

Maria Coffinas, Esq.

Coffinas & Lusthaus

186 Joralemon Street, Suite 910

Brooklyn, New York 11201

Children:

Ira Forman, Esq.

26 Court Street #2403

Brooklyn, New York 11242

Debra Silber, J.

The plaintiff/wife commenced this action on or about May 16, 2011. A trial was held on 12 days beginning January 7, 2013 and continuing on January 8, 9, 10 and 11 and then resuming on May 5, 2013 and continuing on May 6, 7, 8, 9, 10, 13 and 14, without a jury, on the issues of custody and visitation, equitable distribution, and child support. Both parties waived spousal maintenance and agreed to pay their own attorneys fees and litigation expenses. Both parties and the subject child were represented by counsel. Each party submitted a Statement of Proposed [*2]Disposition which included a proposed parenting plan. Oral summations were delivered on May 31, 2013. The parties stipulated to waive the submission of the trial transcripts. Defendant husband admitted 19 exhibits into evidence. Plaintiff wife admitted 58 exhibits.

BACKGROUND

The parties were married on July 1, 1998. There are two children of the marriage, Emily [FN1], born June 22, 2001 and John John (hereinafter referred to by the name he commonly uses, "John"), born May 21, 2003. The parties have lived in Brooklyn since 2003. They are still living together in the marital residence. The wife is currently 52 years old. She owns her own dental practice. The husband is currently 47 years old and works as a first assistant director, primarily for television. He has also written screenplays and he recently made a full length film, which he both wrote and directed.

DIVORCE GROUNDS

An inquest on grounds was held on January 9, 2013. The plaintiff wife is granted a divorce on the grounds of irretrievable breakdown, pursuant to DRL § 170(7).

A. CUSTODY AND VISITATION

This portion of the trial was concluded before the financial issues were tried, so the attorney for the children wouldn't need to sit through the testimony on the financial issues. As a result, this decision is divided into Parts A and B, as the parties took the stand twice each, once for Part A and once for Part B.

The plaintiff seeks sole physical and legal custody. The father seeks some level of joint legal custody as concerns some aspects of decision making, or primary authority in certain areas, primarily education and the children's physical and mental heath.[FN2] The parties also disagree over his parental access time. He has requested about 50% of the children's non-school time, but the mother prefers something closer to alternate weekend access and one night during the week.

It is noted that a draft agreement on parental access, which mirrors the mother's final position, was negotiated during the January trial dates, but then the mother refused to actually sign it. The trial was adjourned until May to accommodate defendant's work schedule without her signature on the document. A day before the trial resumed, the plaintiff mother finally signed the document, but when the parties came to court on May 5, the father repudiated the agreement. In particular, he would not agree that plaintiff should be permitted to move her residence without any geographic restriction. There are other items that he also felt were unacceptable. In the interim, both parties stated they have substantially been abiding by its terms.

At the trial, both parties testified. The mother also called the children's babysitter, Val Martin, to testify. In addition, the court-appointed forensic evaluator, Dr. Sara Weiss, testified as the court's witness. The court makes the following findings of fact, based on the testimony and exhibits introduced at trial. THE MOTHER'S TESTIMONY

The mother testified that the parties were married at a ceremony in the Seychelles on July [*3]1, 1998. She attended Stuyvesant High School, Amherst and Harvard Law School prior to the marriage. Her husband went to John Dewey High School and Stanford University. She has a dental practice on Park Avenue and 55th Street, having purchased her father's client list in 2006. Previously, she worked for her father's dental practice. She graduated law school in 1985, and practiced as an attorney in Ohio and Chicago and when the parties met, she was a partner at Jenner and Block in Chicago. After the parties were engaged to marry, she took pre-dental classes at Loyola in Chicago. In 1996, she resigned from the law firm and moved to New York with defendant. She continued her pre-dental studies in New York and then attended dental school at NYU. She testified that she finds the work more gratifying than practicing law and her availability for her family is more flexible.

When plaintiff met her husband, he was a second assistant director and she was working at the law firm in Chicago. He moved to Chicago and worked on some films there, but they decided to move to New York, where they both grew up.

Before the plaintiff changed careers, the parties discussed the pros and cons of the change. They were engaged at the time. She said that her father and grandfather were both dentists and she would have a guaranteed job; he consented. Both of their families were in New York, and New York was a good place to work in films. They moved to New York in January of 1997. She started dental school in September of 1998.

In 2002, the mother graduated from dental school and went to work for her father. He had a few other dentists who worked in his office part-time. She now has a general dentistry practice, and she employs an orthodontist who comes in one day per week. She employs a receptionist and two dental assistants. She rents space, furnishings and equipment from another dentist.

Plaintiff testified that her husband is in his third year working as first assistant director on "Bluebloods," a TV show. Prior to Bluebloods, he had no steady schedule, and he has no steady schedule between shooting seasons. He recently made a film during his break from "Bluebloods" and he is currently trying to get a distributor for it. He gets a break from work from April to July, and during Christmastime. The spring break is referred to as a "hiatus." Since Emily was born in 2001, the father has worked steadily. The mother does not dispute that he works hard and loves his work.

The father's "Bluebloods" schedule is eight days of preparation, followed by eight days of shooting. During preparation, he leaves home at 7:30 A.M. and works until 8:00 P.M.. Filming begins and ends later each day. On weeknights, he is never home for dinner. In her opinion, he is "always working." He has worked on other television programs and films during his hiatus. She believes he will continue to do so.

The mother testified that since the divorce action commenced, the father only communicates with her by emails and texts. They live together, but they do not speak with each other. He is living in the guest room and has a padlock on the door. She cannot remember her last conversation with him. He went to the Sundance Film Festival last year, and she found out he was in Utah by reading The New York Times and learning that his film was shown there.

In the proposed agreement, it provides that the father will take the children to school on [*4]Mondays and Tuesdays during his hiatus,[FN3] but he has not done so; nor has he picked them up. She has never relied on his word and took the kids to school herself, and either she or the sitter picked them up. The father claimed he didn't take them to school because the mother had planned to take them out to breakfast or asked the sitter to, and he decided it was better to avoid conflict and just go to work. He was clearly upset that what he thought was mature conflict avoidance on his part was being "used against him" at trial.

Defendant asked that no playdates be scheduled on his days with the children, including his alternate weekends, as well as those Friday evenings when he gets home early. As a result, the mother complained that she cannot make plans for herself or the children, but that she never knows whether he will be on time.

Plaintiff testified that she arranges her work schedule every year to accommodate the children's schedules. By contrast, the father has never been able to adjust his schedule for the children's needs or if she has an appointment. The mother produced a copy of her redacted office appointment schedule which illustrated the way she blocks out time for the children in advance, so that her receptionist doesn't schedule patients during the requested time blocks. The mother works the equivalent of four days a week, as she leaves early on Tuesday and Thursdays to pick the children up from school and she takes them to their afterschool activities.

Alice, the first sitter they employed, worked for them for the first nine years after Emily was born. However, she wanted to leave at 6:00 P.M. sharp. After first hiring high school students to replace the sitter at 6:00 P.M., the mother eventually hired a different sitter. In June 2010, the parties had two sitters; one for two days a week and one for three. Then the mother hired Val, who used to work for her sister. Plaintiff testified she intends to keep Val as the children's sitter. She said that her husband has refused to employ Val as his own sitter because he doesn't trust her. She assumes he will hire a babysitter once he moves out, although the father testified that he wasn't sure he would need or want one.

The mother says that, with some exceptions, the parties have been abiding by the schedule in the rejected agreement and it has mostly worked out well. The exceptions are Monday mornings, when the father had to leave for work too early to take the children to school about half the time. The mother indicated that the father has never given her seven days' notice for his requests for additional time with the children, as is provided for in the agreement, although he has sometimes asked for additional time, and has sometimes just taken them out without telling her, although he has informed the sitter. Once he spontaneously asked if the children could come with him to a Yankee game he had been given tickets to. The mother said no, because Emily had a swimming class that day. Her values require her children to meet all of their obligations, and missing a swimming class was not, in her mind, an option. She suggested they go after the class and he declined and abandoned the plan as he felt they'd miss half the game. He has also arrived late on Fridays on some weekends, but notified her in advance. Sometimes he has returned them early on a Sunday night because he had to go to work very early Monday morning.

Plaintiff also stated that, on some of the father's weekends, when the father had to work, he has taken the children to his mother's apartment in Manhattan. The mother admitted the [*5]children have a good relationship with their paternal grandmother and the mother said that she doesn't object to the children spending time with their grandmother.

The plaintiff complained that the father has "changed his mind" about his plans for the 2013 summer. Defendant claims his work schedule was changed and it was not his fault. The mother says that she paid for all the children's summer programs. The father did not object, but did not offer to pay. The mother says she's done all the research and made all the arrangements for all the children's extracurriculars, music and other lessons and camps, although the father has suggested which sports John should be registered to participate in.

The mother acknowledged that the father is "fun" and makes the children laugh. She says they have different parenting styles, but he has good judgment and good parenting skills and a good relationship with the children.

The father padlocked his bedroom door but he gave the combination to Emily, and then told her not to tell her mother. The mother says she told the father it was wrong to ask the child to keep secrets from her, and recommended that he should talk to a psychologist. The father was insulted, but agreed they could both benefit from therapy. They made an appointment to see Dr. Denby together; then he cancelled the appointment "on advice of counsel." The father expressed concern that what was discussed would end up before the court and would not be confidential.

The repudiated parenting agreement has a provision for a parenting coordinator; the mother wants one and the father does not. The mother believes that cost is the issue for him, but she is not sure. In her opinion, they need an intermediary because they cannot communicate without arguing.

The mother testified that when Emily doesn't do well on a task in school, she gets very upset. She says that Emily's response is disproportionate. The mother wanted Emily to go to a therapist back in 2011, for what the mother perceived as anxiety. The father did not agree, so it hasn't happened. The mother thinks her daughter needs therapy, and in the mother's opinion the parties' separation is affecting Emily negatively.

The parties did go to see someone named Dr. Thatcher for therapy concerning how to tell the children about the divorce. The therapist was recommended by the head of the lower school at Saint Ann's School, where the children attend. They had four sessions before the father walked out in frustration. Shortly thereafter, they resumed the sessions and attended together two more times. The mother then went alone two times and they went one more time together, before he walked out again. The father emailed the mother that he felt Dr. Thatcher was biased; the father did not want to tell the children about the divorce. After talking with Dr. Thatcher, the mother took Dr. Thatcher's advice; for example, the mother stopped showing up at the children's activities during the father's scheduled parenting time. The mother claims that she is open to the advice of professionals and could use help in this process. In the mother's opinion, the father will only go when the professionals agree with him.

The mother says that she wants to make all the decisions concerning the children. She does not agree with the father that she is controlling. She says that the father has not disagreed with any of the health, education or extracurricular decisions she has made for the children, except with regard to Emily's therapy. The mother says she has deferred to the father's judgment concerning therapy for Emily, as well as on signing John up for soccer.

The parties had another conflict when the mother did not agree that the children could [*6]appear in the movie the father was making last year, after the father told the children they could be in it. The father previously had them appear as extras on "Bluebloods" without asking the mother's permission. He told her that her concerns were "sad" and "reprehensible," but he complied with her wishes that they not be in his film. She said "no" without knowing how he was going to use them in the film. She now says she might have agreed to their appearance in the film if she had more information.

The mother stated that she would keep the children in private school in Brooklyn, Manhattan or the Bronx and pay her share of the tuition. She obtained a mortgage commitment for $1.5 million so she can purchase defendant's interest in the marital residence. She has not investigated other housing options as she wants the children to stay in the same school and live at the same house, so that things can remain stable. The children are doing well at Saint Ann's School.

The mother wants the children to live with her. She's "been there for them" since their birth, has schedule flexibility, is organized, and the children have relied upon her all along. She provides stability and would keep them in an existence consistent with the ways things have been throughout their lives. She is all right with the father having a two-bedroom apartment and the children sharing a room when they stay with him.

She wants the children to continue to live in the marital residence. Emily would be upset if they moved. Emily overheard the father talking to a neighbor about selling the house and since then she has repeatedly been asking to stay in the house.

The mother would like to leave the parental access schedule as it is in the proposed agreement.

THE FATHER'S TESTIMONY The father was born in the Bronx. He has a BA from Stanford University. He later took film classes and became a production assistant. He was living in Los Angeles when he met plaintiff. He's been a first assistant director for about 15 years. When the parties first moved to New York, they lived in a rental in Park Slope, then at his wife's sister's home in Westchester for a few years while plaintiff was in dental school. During this period, his sister-in-law and her husband lived in Europe and they had the house to themselves. Then they bought their home in Park Slope in October 2002, renovated it and moved in about a year later. They first lived in the space which is now the tenant's apartment for six months, then when it was completed, they moved up to the triplex where they live now. While they were supervising the renovation, they lived in plaintiff's father's town house in Manhattan.

Defendant testified that he used to work on both movies and television and often traveled for work. Since the children were born, he stopped traveling, and has been lucky to get television work in New York City. He says that he turns down a lot of jobs that require travel.

On "Bluebloods," his work schedule consists of an alternating cycle of eight days of preparation followed by eight days of shooting. Preparation is on a fixed schedule and never runs early or late. The shooting schedule is often both. His job is to coordinate everything. His work year starts in mid July and ends in April. He just finished editing his first feature film. "Home," and is trying to get a distribution agreement for it. He said that the upcoming season schedule for filming "Bluebloods" will be ready in a couple of weeks. In his opinion, he can plan his time well in advance. He does not, as plaintiff suggested, live "day to day." He disputed her claim that [*7]he is "always working."

In the father's opinion, his relationship with the children has not deteriorated since his wife filed for divorce. He was worried it would, because he and his wife are still living together. He tries to minimize conflict at home. His wife has made everything tense and conflictual.

The father testified that he participates in extensive activities with the children, and gave many examples. He introduced a photo album into evidence which illustrates many happy activities.

Defendant disagreed with the mother's view of what transpired when he asked to have the children appear in his film. He produced emails documenting how he'd told her exactly what the children would be doing. She at first said OK, then changed her mind four days later. She also contacted her attorney about it. He was so upset when she said she'd decided it was not OK that he didn't answer that email; he just let it drop. He considers this one example of her tendency to manage him. It is a "control issue" with her, he opined. He admits he ceded control of the children to her after the divorce started. He says this was not primarily to avoid conflict, although it had that benefit, but because she would call her lawyer about every contact between them, and he assumed she intended to raise these matters at trial.

Mr. O agrees with Dr. C that they parent differently. He likes to cook more, and give them chores. He implied the mother was spoiling them. In his opinion, each of their styles is fine, but it would be better for the children to be exposed to both ways of living. He believes that both parents convey good values to the children.

Defendant testified at length about how, if needed, he would find a perfect sitter and, if necessary, would have people cover for him at work. He maintained that he would go to great lengths to be able to take the children to school on Mondays and Tuesdays.

His mother lives at Lexington Avenue and East 56th Street in Manhattan. She is a retired school social worker. His father has passed away. His mother has a good relationship with the children and can be available to help him, if needed.

Defendant testified that he takes care of the house and the car. He was in charge of the renovation, and he pays the house bills. He does his share of household chores.

The father wants to live close to the children's school. He knows that he needs three bedrooms. He would love for the plaintiff to keep the house, but he thinks their homes should have some "level of parity." This would not be possible unless the house is sold and the profit divided.

The father does not agree that Emily needs an evaluation or therapy. The children are terrific. He knows divorce can cause issues. He's not opposed to therapy. But it is horrible in his opinion that the children had to have a lawyer and a forensic evaluation in their lives. The father believes some of the stories the mother told about Emily's compulsive neatness and her need to control her environment are misleading. Yes, she makes people take their shoes off before entering her room, but she has a white rug. He asserted that, in his opinion, the present is not the right time for Emily to start therapy.

Defendant asserts that the cost was not the reason he refused to go to Dr. Denby. Rather, it was because he could not get a promise from Dr. Denby that he wouldn't testify at the trial. The father said he only wanted the therapy to just be therapy.

Defendant stated that when the mother refused to sign the draft parenting agreement in [*8]court, he realized there was a problem. In his opinion, he had totally acquiesced in agreeing to the terms, which were very skewed in her favor, yet she could not make a decision. She cannot make decisions. He's good at making decisions. He's trying to protect the children. Among other things, he wants to add another night per week to the agreement. He's stuck to the agreement, so as not to create a fight with plaintiff, because she didn't want to deviate from it.

The agreement would have given the mother sole legal and sole physical custody of the children, who would live primarily with the mother. The agreement would have encouraged the parents to cooperate on major decisions, and would have mandated the use of a parenting coordinator, but in the event the parents could not agree, final decision making power was given to the mother. There was also an access schedule which will be discussed shortly.

The father is hopeful for greater communication with plaintiff in the future. During the testimony he made a great effort to show that he is sure that, ultimately, the parties can work together and agree on matters concerning the children.

The father seeks to have joint decision-making with plaintiff for medical decisions, choice of schools and extracurricular activities, although he states they've not had disagreements in the past on these topics, other than about whether Emily should be in therapy. He would really like the final say on medical and educational issues. He is very concerned about the children having access to him, and is afraid the mother will move them to Westchester. He says the children are happy at Saint Ann's and he wants them to stay there. He feels that he is better suited to be the "point person" for decisions, and he says he will consider the mother's input and all other relevant factors. As to medical care, he says he's just a better decision maker; he is in charge of safety at work and is good in handling emergencies. Defendant does not agree that they should have a parenting coordinator to resolve potential disagreements.

As for the parenting schedule, he testified that he wants the schedule in the proposed agreement plus an additional overnight on Tuesday nights. The agreement provides that the father would have parenting time on alternating weekends, and he would pick up the children from school or camp on Friday and return them on the following Tuesday morning, when he would take the children to school or camp. Further, he would have every Monday following the mother's weekend, from the close of school or camp to the following Tuesday morning, when he would take them to school or camp. He would also, on at least seven days' written or email notice, be permitted to request additional daytime access on either a Tuesday, Wednesday or Thursday, between the close of school or camp and 7:00 P.M.. The mother would not be obligated to consider more than one such request for extra access in any calendar week.

The father said he wants to alternate the children's school breaks, but wants to split Christmas vacation so each has half.

It should be noted that the father's Statement of Proposed Disposition proposes that the parties share joint legal custody of the children, with the parties jointly making all major decisions including education, religious education, extracurricular activities, after-school activities, summer plans and health care. It says that, in the event that the parties cannot agree, they will consult a parenting coordinator or an appropriate expert. In the event that the parties are still unable to resolve any disagreement, they may submit such issues to a court of appropriate jurisdiction. In the event that the court determines that the parties are incapable of working together, the Statement proposes that the parties be required to consult with each other on all [*9]major matters with respect to the children. If the parties are still unable to reach an agreement, the father proposes that he shall have final decision-making authority.

With respect to parenting time, the Father's Statement of Proposed Disposition states the children should spend equal time with each parent. To wit, "the children shall reside with the father each week from the commencement of school on Monday morning (or 9:00 a.m. on Monday morning if school is not in session) until the commencement of school on Wednesday morning (or 9:00 a.m. on Wednesday morning if school is not in session). The children shall reside with the mother each week from the commencement of school on Wednesday morning (or 9:00 a.m. on Wednesday morning if school is not in session) until the commencement of school on Friday morning (or 9:00 a.m. on Friday morning if school is not in session). The children shall reside with either parent on alternating weekends from the close of school on Friday afternoon (or 9:00 a.m. on Wednesday morning if school is not in session) until the commencement of school on Monday morning (or 9:00 a.m. on Monday morning if school is not in session)."

DR. WEISS' TESTIMONY Dr. Weiss testified that she has conducted 70-80 court-appointed forensic evaluations. She has been practicing since 1980.

In evaluating the family, Dr. Weiss said that when the parents had different descriptions of things, the mother's version usually turned out to be more accurate.

According to Dr. Weiss, the parties stipulated that they would go to Dr. Thatcher to try to work out custody, but the father stopped going. The father told Dr. Weiss that Dr. Thatcher had a gender bias against him. She described the father as immature. She said it was the wife who wanted a divorce, but that the husband was unhappy that his wife "put the children ahead of him."

Dr. Weiss originally recommended that the parties try to work out custody and visitation themselves. She did not make any recommendations in her first report because she did not have a good grasp of the father's schedule. However, there was a subsequent court order that she make a recommendation. She set aside an hour and a half with each party in order to do her addendum. The father left after 45 minutes. He did not want to be there or to talk to her.

In Dr. Weiss' opinion, the father did not want to participate in the forensic evaluation, and she thinks he tried to "slow it down" in the hopes of settling the case. He was in denial that the marriage was ending. He was worried about the children meeting with Dr. Weiss, and the effect it might have on them.

Dr. Weiss described the children as smart, creative and engaged. She said they are independent and self-motivated, and are good students. Dr. Weiss said the children were very closed with her and were reluctant to tell her anything.

Dr. Weiss describes Emily as a little anxious. She said that Emily cares about her schoolwork a lot. She described Emily as rigid in relation to her schoolwork and thought she needs therapy to deal with the stress of the divorce. However, her father has refused to allow it. Dr. Weiss said that moving Emily to a new home would make her anxiety worse, as she's rooted to her room and needs her belongings to stay where they are. Emily gets upset if anything is moved or touched in her room.

Dr. Weiss said John may need therapy as well, but it was too early to tell. John was probably eight years old when she met with him. [*10]

Dr. Weiss claimed that the father does not realize that he is the reason the parties cannot work out the issue of custody; that he was not forthcoming with information and cannot acknowledge that his schedule at work is incompatible with being available for the children.

Dr. Weiss opined that the father is an active parent, and agrees that he wants to remain actively involved. She stated that the father wants Monday and Tuesday evenings and alternate weekends. He tried to demonstrate to her that he was available, but this was when "Bluebloods" was in a hiatus, though he did not tell her that. He told her that he could come home earlier, but that he wasn't wanted there, so he stayed at work or went out with co-workers.

She testified that the father told her he could make adaptions to his schedule, but nothing has changed in the year since he made that representation.

The father claimed that the mother has moved in on his time with the children, and has made plans with them during his time. This has upset him.

When the father gets off work and comes home, he expects the children to drop everything to be with him, and if they do not, he is annoyed.

The father himself was on antidepressants for a time, and was seeing a psychiatrist as a result of the divorce. He told Dr. Weiss that he went to the psychiatrist for medication. She believes that he should be in therapy, but he told her that he doesn't need it and that he "can talk to his friends."

Dr. Weiss described the mother as very available for the children. She said the mother is thoughtful and says what she means and means what she says. She described the mother as "organized" and the father as "spontaneous." She said the mother was "the executive" in the household.

In Dr. Weiss' view, the mother wasn't trying to undermine the father's time with the children, she was just trying to give the children what she thought they needed.

Dr. Weiss believes the mother contributed to the family's problems by marginalizing the father in the household, and by being so close with the children that the father felt excluded.

Dr. Weiss also reported that the mother will not criticize the children or discipline them, and that this was neither optimal nor in their best interests. This too caused conflict with the father.

Dr. Weiss noted that the mother is five years older than the father and had a recent (2008) heart attack and multiple surgeries on her right hand.

Dr. Weiss recommends that the children live with the mother, with the father having alternate weekends, one weeknight on the weeks he has the weekend (preferably Monday, to minimize moving) and two weeknights after the weekends the children have spent with their mother, provided the father is available. In addition, the father should have more time with the children during summer breaks.

When probed during cross-examination, Dr. Weiss said she thought it would be fine if the father had both Monday and Tuesday nights with the children, provided he can actually be available.

VALDA MARTIN'S TESTIMONY

Valda Martin ("Val") is the children's babysitter. She started working for the mother in March of 2012. She used to work for the mother's sister. She knew about the parties getting divorced before she started working for them. She was initially phased in with the other sitter. [*11]She now works four days a week, more or less from 7:00 A.M. to 7:00 P.M.. She does not work on Tuesdays. She can communicate with both parties and work out schedules with them.

Testifying in January, Ms. Martin stated that, since Thanksgiving, the father has been home when she gets there. Before Thanksgiving, he was only there when she arrived in the morning about twice a month. Twice a month (on Fridays) he relieves her at the end of the day, but the rest of the time it is the mother who relieves her.

The children generally have their dinner with the mother. Since November, they have had breakfast about twice a week with their father.

Ms. Martin testified that her duties include walking the dog, making breakfast, shopping for groceries, cleaning the house, doing the laundry and making dinner. At first, she went with one of the parents to take the children to school. Now, the parents take them. The father has gone to school with them twice since Thanksgiving and brought them home twice in that period. The mother picks the children up on Tuesdays and Thursdays, the days she leaves work early.

FURTHER PROCEEDINGS

A statutory records check as required by DRL § 240(1)(a-1) revealed no relevant records concerning the parties.

CREDIBILITYThe court evaluated the credibility of each witness based on several factors, including but not limited to the consistency of the witness' testimony; the contradictions between the witness' testimony and any exhibits; the witness' affect and manner on the witness stand; and the witness' ability and willingness to answer questions candidly and without hesitation.

The court finds that both parties were entirely credible. Neither the mother nor the father were intentionally misleading, but they sometimes sincerely testified in a manner which indicated their view of the truth is slanted by their personal biases. For instance, the father honestly believes he can spend more time with the children than his schedule actually permits. The mother's version of what occurred when the father wanted to give the children a walk-through in his film seems quite at variance with what actually occurred. The court has no idea whey the communication between the parties has broken down so completely.

Dr. Weiss was a credible witness within the parameters of her profession. While the court does not agree with many of her conclusions, including her opinion that the mother is generally more credible than the father, that the father is the sole parent who could benefit from therapy, or that Emily needs an immediate evaluation for possible obsessive compulsive disorder and anxiety, the court finds that her judgment is generally sound.

ANALYSIS For any court considering the issue of child custody, the standard by which we are guided is to make every effort to determine "what is for the best interest of the child, and what will best promote [the child's] welfare and happiness." See Eschbach v Eschbach, 56 NY2d 167 [1982],quotingDRL 70. In determining the best interests of the child, the Court must review the totality of the circumstances presented. See Friederwitzer v Friederwitzer, 55 NY2d 89 [1982]; Hom v Hom, 249 AD2d 447 [2nd Dept 1998]. In making a "best interests" determination, the factors to be considered include the quality of the home environment and the parental guidance provided 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 [*12]fitness of the respective parents, and the effect an award of custody to one parent might have on the child's relationship with the other parent. See Eschbach v Eschbach, supra; Matter of Ring v Ring; 15 AD3d 406 [2nd Dept 2005]; Miller v Pipia, 297 AD2d 362 [2nd Dept 2002]. In addition, the courts may consider the length of time of the present custody arrangement (see Fanelli v Fanelli, 215 AD2d 718 [2nd Dept 1995]; Matter of Garvin v Garvin, 176 AD2d 318 [2nd Dept], mot lv app den 79 NY2d 752 [1992]) and which parent is the more likely to assure meaningful contact between the child and the non-custodial parent. See Matter of Green v Gordon, 7 AD3d 528 [2nd Dept 2004]; Matter of Dobbins v Vartabedian, 304 AD2d 665 [2nd Dept], mot lv app den 100 NY2d 506 [2003]. In making its determination on the issue of custody, the court is to evaluate the testimony, credibility, character, temperament, demeanor and sincerity of the parties and other witnesses. See, Matter of Rory H. v Mary M., 13 AD3d 373 [2nd Dept 2004]; Matter of Dobbins v Vartabedian, supra; Matter of McLaren v Heuthe, 296 AD2d 500 [2nd Dept 2002].

Confronted with the task of determining which parent is to be awarded primary custody, a court must initially ferret out the credible testimony and make findings of fact on which the ultimate determination can be supported. Notwithstanding the effort that goes into the process, the result, in reality, is often nothing more or less than the court's forecast or best estimate of future events, specifically as to which parent would be the superior custodial caregiver, able to provide a more stable and safer environment, both physically and emotionally. The court here faces a dilemma. In this case, there are two dedicated and loving parents who cannot easily agree upon anything. Either parent is capable of being a more than adequate custodian for the children, and the children would clearly benefit from having regular access to both parents, but joint custody would not be in anyone's best interest, particular that of the children.

The father is incorrect in characterizing the status quo in the household as "joint" decision making. In reality, it is clear that the mother did all of the research and then proposed decisions and the father merely acquiesced.

While the father is not entirely incorrect in his statement that when push comes to shove, they are capable of working things out, the process of making decisions together is not a journey these children, or the parties themselves, should be forced to endure on a regular basis. The court endured the frustrating spectacle of watching the father's reluctant capitulation to the mother on nearly every aspect of the parenting agreement in January, only to watch the mother struggle and ultimately refuse to sign it. Four months later, on the eve of the continued trial, she finally signed on, only to have the father, having recovered his endurance, repudiate what he had so reluctantly agreed to.

Such a pattern repeated endlessly may ultimately result in something resembling consensus; it may also result in ulcers for all concerned. As an outsider, the court is reluctant to impose its views on such intelligent, thoughtful and concerned people.However, it is best for the children that one person be the "point person" for the decisions that affect their lives.

The mother wants the children to live primarily with her, and that the father see them on alternate weekends and one night during the week, and that she have ultimate decision-making power on all major issues. The father essentially proposes a 50/50 split of time and that he either have joint decision making with plaintiff for education and medical decisions, or final decision making power in those spheres. [*13]

It is clear to the court that both parties could adequately handle parenting entirely on their own, if necessary.

As acknowledged by the mother, the father generally has good judgment and a strong relationship with the children. He is very concerned with instilling in the children a strong sense of right and wrong, the importance of social justice and of personal responsibility. He also has an admirable "can do" attitude. He is correct to be concerned that they not be "spoiled."

The mother has been the primary caregiver. She puts the children first and arranges her schedule at her dental practice to accommodate their schedules. She leaves work twice a week early enough to pick the children up at school and take them to their afterschool activities. She appears to be willing to go to nearly any length, and to make any sacrifice, in the interests of her children. Further, she is acutely attuned to their emotional needs. At odds with the father on this issue, it seems she believes being "spoiled" is a privilege they are entitled to.

Each of the parties also has some parenting deficiencies.

The father does not seem aware that, even with the great changes he's made in his work life by turning down out of town jobs and having a steady television show to work on, the evidence is overwhelming that the demands of film and TV production jobs will not allow him to have the sort of parental access schedule he proposes. While he even went so far as to suggest that someone could cover for him at work if he needed to leave early to be with the children, the reality is that it would jeopardize his reputation in his business if he did this on a regular basis, and he would more likely hire a babysitter or ask his mother to pick them up. Further, he refused to accept the fact that the psychological needs of his children cannot be postponed to a more convenient time.

On the other hand, the mother can be controlling to a degree which is concerning. Although sometimes appearing indecisive, she seems to always have things work out the way she wants them to. She is clearly reluctant to criticize the children or to discipline them. The teen years are around the corner, and a method of discipline must be agreed upon and implemented or they will be rocky years indeed.

In view of the plaintiff mother's demonstrated ability to arrange her time to meet the needs of the children, and the father's inability to always do so, despite his laudable efforts in that direction, the court grants the mother primary physical custody of the children, with liberal parenting time for the father as described in more detail herein.Concerning decision making, sometimes referred to as legal custody, the court has determined that it would not be wise to award the parties joint legal custody. Joint custody is not appropriate where the parties cannot communicate effectively. Braiman v Braiman, 44 NY2d 584 [1978]; Fedash v Neilsen, 211 AD2d 1003 [3rd Dept 1995].

In spite of the arguments made by the father's attorney that this case is distinguishable from other contested custody cases, as these parents are not trying "to gain an advantage over each other," it is also not legally possible to award joint custody on the facts herein.

Unfortunately, as the record indicates in great detail, these parties do not communicate well. For two years, they haven't spoken to each other outside of text messages and e-mails, even while still living in the same house. Therefore, despite great reluctance to choose one of these fine parents over the other, the court feels it has no choice but to do so. Given the testimony before it, the court concludes that it makes the most sense for ultimate decision making power to [*14]reside with the parent with residential custody. The court notes that in the sphere of mental health decision making, the father's misguided reluctance to enroll Emily in therapy is troubling, but that otherwise the court's choice is mostly based on what seems the most practical, given the mother's ability to be present if needed, rather than by any demonstrable superiority in parenting abilities. Therefore, the mother is awarded both legal and physical custody of the children. Further details are specified below in the section entitled "Decision Making."

Parental Access Schedule

The Court gave serious consideration to a schedule along the lines proposed by the father, but kept in mind Dr. Weiss's conclusion that moving the children back and forth during the school week could be disruptive to them and their success in school.

If the father had moved out prior to the trial so there was some track record of how the children adapted to going back and forth, Dr. Weiss's conclusion might have been rebutted, but without a track record, the court defers to Dr. Weiss' opinion. As such, the court has endeavored to increase the father's time with the children in other ways.

This schedule shall be effective commencing Sunday, September 1, 2013. The summer schedule the parties have worked out for 2013 need not be changed. The schedule below for holidays and school breaks shall supercede and have priority over the normal weekly schedule. With the exception of some provisions concerning the summer break, and a few minor notations and clarifications, the provisions for holidays and school breaks are taken directly from the proposed parenting agreement.

1.The children shall reside with the mother during the week.

2.Weekends. The father shall have parental access on weekends on an

ABBAB schedule, the father having the B weekends. A schedule for the first year is annexed hereto with the exception of the Christmas holiday, which the parties have to allocate between themselves in accordance with this decision. In other words, the children will be with the mother for one weekend, then with the father for two consecutive weekends, followed by one weekend with the mother and one with the father, before the cycle resumes again. Weekend time for the father shall begin at 8:00 A.M. on Saturday and end at 8:00 P.M. Sunday. Pick up and drop off will be by the father at the mother's home unless other arrangements are mutually agreed to.

3.Tuesdays. The father shall have the children for dinner every Tuesday

evening from 6:00 or 7:00 P.M. to 9:00 P.M. In addition, the children or either child may stay with the father overnight after the Tuesday dinner once the child or children is/are able to travel to school on their own in the morning. The father's time with them on Tuesday shall commence at 6:00 P.M. whenever the father is available, and otherwise at 7 P.M.. The mother shall not enroll the children in any extracurricular activities which interfere with the Tuesday dinner, and the children must be home by 6:00 P.M.

4.Additional Time. Additional parenting time with the father may be arranged

by the mutual agreement of the parties. The father shall make such requests with reasonable notice, preferably 72 hours in advance. The mother shall consider all such requests in good faith. The father shall be obligated to bring the children to all activities that were scheduled for the children prior to the father's request for the additional time.

5.Thanksgiving Weekend. For purposes of this schedule, the "First

Portion" of Thanksgiving will commence at 5:00 p.m. on the last day of school prior to [*15]Thanksgiving break and conclude on Thanksgiving Thursday at 4:00 p.m. and the "Second Portion" of Thanksgiving will commence on Thanksgiving Thursday at 4:00 p.m. and conclude on the Sunday after Thanksgiving Day at 8:00 p.m. The father will have the children for the First Portion in odd-numbered years and the mother will have the children for the First Portion in even-numbered years. The father will have the children for the Second Portion in even numbered years and the mother will have the children for the Second Portion in odd-numbered years. In odd-numbered years the children will be picked up from the mother's residence by the father at 5:00 p.m. and returned to the mother's residence by the father on Thursday at 4:00 p.m. In even-numbered years the children will be picked up from the mother's residence by the father on Thursday at 4:00 p.m. and returned to the mother's residence on Sunday at 8:00 p.m.

6.Christmas Eve/Christmas Day. For the purposes of this schedule,

"Christmas Eve" access time will begin at 11:00 a.m. on December 24th and end at 1:00 p.m. on December 25th, and "Christmas Day" access time will begin at 1:00 p.m. on December 25th and end at 8:00 p.m. on December 26th. In odd-numbered years, the children will spend Christmas Eve with the father and Christmas Day with the mother. In even-numbered years, the children will spend Christmas Eve with the mother and Christmas Day with the father. The Father will pick up the children for his Christmas Day or Christmas Eve access from the mother's residence and will return the children to the mother's residence at the conclusion of the father's parental access time.

7.Christmas Recess. For purposes of this schedule, "Christmas Recess"

shall be defined as the period (excluding the Christmas Day/Christmas Eve holiday as defined above) commencing at 11:00 a.m. on the day following the end of school and concluding at 5:00 p.m. on the day prior to the day on which school resumes. The children's Christmas Recess will be divided equally by the parents, with each parent receiving as close as possible to an equal number of consecutive days. In every even-numbered year, the father will have priority of choice as to which days during the Christmas Recess the children will spend with him, provided that he gives written notice (email sufficing) to the mother by no later than October 15th. In every odd-numbered year, the mother will have priority of choice as to which days during the Christmas Recess the children will spend with her, provided that she gives written notice (email sufficing) to the father by no later than October 15th. If in any year that the mother or father fails to give timely notice to the other on their designated year, then the other parent will have priority of choice for the Christmas Recess.

8.Midwinter Break. For purposes of this schedule, "Midwinter Break" will

commence on 5:00 p.m. on the last day of school prior to the break and conclude at 8:00 p.m. on the day prior to the day classes resume. The father will have the children for Midwinter Break in odd-number years and the mother will have the children for Midwinter Break in even-numbered years. In odd-numbered years the Children will be picked up from the mother's residence by the father at 5:00 p.m. and returned to the mother's residence by the Father at 8:00 p.m. prior to the day school resumes.

9.Easter Saturday/Easter Sunday. For the purposes of this schedule,

"Easter Saturday" access time will begin at 11:00 a.m. on the day prior to Easter and end at 1:00 p.m. on the day of Easter, and "Easter Sunday" access time will begin at 1:00 p.m. on the day of Easter and end at 5:00 p.m. on the following day, that is, on Monday. In odd-numbered years, [*16]the children will spend Easter Saturday with the father and Easter Sunday with the mother. In even-numbered years, the children will spend Easter Saturday with the mother and Easter Sunday with the father. The father will pick up the children for his Easter Saturday or Easter Sunday access from the mother's residence and will return the children to the mother's residence at the conclusion of the father's access time.

10.Spring Break. For purposes of this schedule, "Spring Break" will

commence at 5:00 p.m. on the last day of school prior to the break and conclude at 8:00 p.m. on the day prior to the day school resumes. The father will have the Children for Spring Break in 2014 and 2015 and the mother will have the children for Spring Break in 2016. The same two year/one year cycle shall then repeat. In the father's years, the children will be picked up from the mother's residence by the father at 5:00 p.m. and returned to the mother's residence by the father at 8:00 p.m. on the day prior to the day school resumes. If the Easter holiday falls during the Spring Break recess, the Easter schedule will take precedence.

11.Summer Break. The parents are to exchange information about the summer plans for the children during the first two weeks of February every year. The summer schedule shall commence the first Sunday following the end of school in 2014, and each year thereafter. The father shall have the children for the first four consecutive weeks, and the mother for the last three, including Labor Day. The middle four weeks shall be set aside for camp, teen trips or any similar activity. If the children are not away during this period, the regular schedule will apply.

12.Additional Holidays. The parents will have access time on the following

additional holidays, as follows:

(a)Halloween. The parents will cooperate so as to maximize each child's

enjoyment of the day and to enable each parent to spend a portion of the day after school with the children. If the parents cannot agree on how to accomplish this goal, then if it is an odd-numbered year, the mother's wishes will govern, and if it is an even-numbered year, the father's wishes will govern; in either case, the deciding parent must give the other parent reasonable access to the children on Halloween of not less than two (2) hours.

(b)Other Holidays. In odd-numbered years the father will have the children

on Memorial Day weekend and in even-numbered years the father will have the children on Martin Luther King Jr. weekend and Columbus Day weekend. In even-numbered years the mother will have the children on Memorial Day weekend and in odd-numbered years the mother will have the children on Martin Luther King Jr. weekend and Columbus Day weekend. On any other school holidays, including, but not limited to, Founders Day, and Veterans Day, the parent who has weekend access with the children prior to or after the holiday is entitled to access time on the holiday. The father shall have the children for any Jewish holiday, from 3:00 P.M. until 7:00 P.M. until the next day, provided he gives the mother seven days' notice. Jewish holidays in perpetuity are available at www.hebcal.com.

( c )Mother's Day/Father's Day and Parental Birthdays. In every year, the

children will be with the mother on Mother's Day and with the father on Father's Day, commencing at 10:00 a.m. and concluding at 8:00 p.m. In every year, the children will be with the parent on the day of the parent's birthday commencing at 10:00 a.m. and ending at 7:00 p.m. if the birthday falls on a weekend, or from after school until 7:00 p.m. if the birthday falls on a weekday. The mother's birthday is October 19 and the father's October 21. [*17]

(d)Children's Birthdays. The parents will jointly plan each child's birthdays

so that both parents participate together in the birthday celebration so as to maximize each child's enjoyment of the day. If for any birthday the parents cannot agree on how to accomplish this goal, then if it is an odd-numbered year, the father's wishes will govern, and if it is an even-numbered year, the mother's wishes will govern; in either case, the deciding parent must give the other parent reasonable access to the children on their birthday of not less than three (3) consecutive hours.

13.Travel. During their vacation and school break periods, either parent shall

be able to travel with the children and may take the children out of the country. In the event that the children's passports expire, both parents shall cooperate in getting them renewed.

14.Changes. Any parenting time provided for herein may be changed, as long

as both parents agree to the change ahead of time and in writing. Activities scheduled which will traverse both parents' time, such as Saturday sports, must be coordinated with and consented to by the other parent prior to signing the child up for the activity. The father shall ideally give the mother three days' notice of his request for any additional access time. Three days' notice is not required from either parent for schedule changes or where a situation arises where a parental caregiver is needed. There shall be a cap of one additional overnight per month. For additional overnights, both parents must mutually agree.

15.Illness. Only a significant medical reason will be considered sufficient for

postponement of parenting time. If a child is ill, makeup parenting time must be scheduled.

16.Disputes. Any requested changes in this parenting schedule which cannot

be agreed to by the parties can be brought before the court in a motion for modification, or the parties can go to a mediator, psychologist, social worker, friend or family member, if both parties consent.

17.Emergency decisions. Each parent will make day to day decisions regarding

the care of the children during the time they are with the children. This includes any emergency decisions concerning the health or safety of one of the children. Any such occurrences or decisions will promptly be brought to the other parent's attention by e-mail or text message.

Decision-Making, Relocation and Other MattersThe court has determined that the parents are unable to communicate effectively with each other or to make decisions jointly. Therefore, the mother shall, after consultation with the father, have final decision-making authority concerning the children. The parents shall cooperate with each other to advance the health, emotional and physical well-being of each child. For any major decision, the mother shall advise the father of the approaching decision by e-mail, the time frame in which it must be decided, and the mother's proposed decision. The father shall have the opportunity to comment and provide alternatives. However, the decision of the mother shall be final.

The court notes that it considered the use of a parent coordinator, and while a parent coordinator might prove helpful, it is clear that the father is opposed to the idea, which itself might create the tension a parent coordinator is supposed to help alleviate. In the end, the court finds that there is no need for a parent coordinator, as the terms herein are hopefully specific enough to avoid any conflicts.

Both parents are entitled to have all information regarding the children, including but not limited to their school and medical records. Emily is to be provided with a cell phone; John is to [*18]be provided with a cell phone when he reaches the age of 11. Both parents are to have equal access to information about the children's progress in school and any school activities. Both parents are encouraged to consult with school staff concerning the children's welfare and education, and to attend parent-teacher conferences, preferably together.

Both parents shall keep each other up to date with contact numbers and e-mail addresses and their home address, and both will notify the other of any change in any of this information within 72 hours of such change.

Until John is 18 years of age, neither parent shall relocate his or her residence to anywhere other than in Manhattan south of 96th Street, or in Brooklyn within six miles of Saint Ann's School,[FN4] without the prior written permission of the other parent or an order from the court.

The court notes that it has had to make these decisions while the parties were living together and without any information as to where they would move if permitted to choose. The children have had no experience going between homes. Further, both parties, the attorney for the children and the forensic evaluator all agreed that the parties should live close to one another.

It is hereby ordered that defendant father may not use the children's images, either still or moving, for public dissemination for any purpose, whether personal or for profit, without the mother's permission. This includes posting photos or videos on public and social networking websites, but does not include any websites where access to the photos and videos can be limited to friends and family only.

Both parents shall have the right to communicate with the children when they are with the other parent, by telephone, land line or cell, by text message or by e-mail, during reasonable hours and without interference or monitoring by the other parent. The children may call either parent at any time.

The parents shall respect the rights of the children as is set forth in the "Children's Bill of Rights," as follows:

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; The parents shall not say things or knowingly allow others to say things in the presence of the children or either of them that would harm the children's love and respect for the other parent. Neither parent will initiate or permit the designations "Father" and/or "Mother" or their equivalents to be used by a child with reference to a person other than the other parent. [*19]

When either parent spends time outside of New York City with the children, or if either child goes on a trip with school, friends or family members, as soon as practicable before leaving New York, he or she shall notify the other parent of the child's travel itinerary, including flight information, the address where the child will stay, and a telephone number where he or she can be reached.

A Sealing Order for the forensic evaluation and the supplemental report was issued simultaneously herewith.

B. ECONOMIC ISSUES

Both parties testified during the portion of the trial concerning economic issues. Plaintiff called as witnesses Brian Rogers, of the firm Miller Samuel (concerning the appraisal of the marital residence conducted in 2011 and the update conducted in 2013), her sister, Edith C (concerning money she and her husband loaned to the parties) and Richard Terrano, a CPA (who offered testimony about the tax consequences of selling the martial residence). Defendant called David Gresen, a CPA, of the firm Klein, Liebman and Gresen, (concerning his appraisals of the parties' businesses and the plaintiff's enhanced earning capacity).

The court evaluated the credibility of each witness based on several factors, including but not limited to the consistency of the witness' testimony; the contradictions between the witness' testimony and any exhibits; the witness' affect and manner on the witness stand; and the witness' ability and willingness to answer questions candidly and without hesitation.

As stated before, the court found that both parties were generally credible, and never intentionally misleading; however, both sometimes sincerely testified to facts which indicated their view of the truth was slanted by their personal biases.

As regards the other witnesses, Edith C was a sincere witness, but her testimony produced little usable evidence, as is discussed below. Brian Rogers and David Greisen were credible witnesses within the parameters of their professions and the limits of what they were reporting. The court found their testimony useful within those limits. The testimony of Richard Terrano suffered from problems with his methodology and lacked an understanding of the applicable law and was therefore of limited use.

MARITAL AND SEPARATE PROPERTY

Marital property is defined in Domestic Relations Law 236(B)[1]( c) as "all property acquired by either or both spouses during the marriage and before . . . the commencement of the matrimonial action, regardless of the form in which title is held." Separate property, on the other hand, is defined in part in Domestic Relations Law Section 236(B)[1](d)[1] as "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse."

It must also be recognized, however, that the term "marital property" is to be broadly construed, while the phrase "separate property: is to be narrowly construed. Judson v Judson, 255 AD2d 656 [3rd Dept 1988] citing Price v Price, 69 NY2d 8 [1986].

As the court in G.K. v L.K., 27 Misc 3d 1239(A) [Sup Ct Kings Co 2010] observed: Separate property, an exception to marital property, is to be [*20]narrowly construed [see Farag v Farag, 4 AD3d 502 [2nd Dept., 2004]. Hence, the law favors the inclusion of property within the marital estate (compare Domestic Relations Law 236 [B] [1] [c] and [d]; see Burns v. Burns, 84 NY2d 369, 374 [1994]; Majauskas v. Majauskas, 61 NY2d 481 [1984]), and, accordingly, "the party seeking to establish that a particular item is indeed separate property bears the burden of proof" (LeRoy v. LeRoy, 274 AD2d 362 [1st Dept 2000], citing Seidman, 226 AD2d at 1012; Heine v. Heine, 176 AD2d 77, [1 Dept 1992], lv denied 80 NY2d 753 [1992]). When a party commingles separate funds with marital funds and assets (see Hartog v. Hartog, 85 NY2d 36 [1995]; Lynch v. King, 284 AD2d 309 [2nd Dept., 2001]), it is that party's burden to trace the source of the funds with sufficient particularity to rebut the presumption that they were marital property (Massimi v. Massimi, 35 AD3d 400 [2nd Dept., 2006]; see also Bennett v. Bennett, 13 AD3d 1080 [4th Dept 2004]). Furthermore, the Court of Appeals has recently ruled that . . . during the life of any marriage, many payments are made, whether of debts old or new, or simply current expenses. If courts were to consider financial activities that occur and end during the course of a marriage, the result would be parties to a marriage seeking review of every debit and credit incurred. As a general rule, where the payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. Nor should courts attempt to adjust for the fact that payments out of separate property may have benefitted both parties, or even the non-titled spouse exclusively. The parties' choice of how to spend funds during the course of the marriage should ordinarily be respected. Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the assets and obligations remaining once the relationship is at an end. Mahoney-Buntzman v Buntzman, 12 NY3d 415 [2009] (some citations omitted).

.

Using these definitions and the evidence given at trial the following identifies and classifies the property of the plaintiff and defendant herein.

The following assets are classified as marital property:

The marital residence located at xxx St. John's Place, Brooklyn, New York 11217; [*21]

The wife's dental practice, Ada S. C, D.D.S., P.C.;

Husband's business, Tribal Blues, Inc.;

Enhanced earning capacity of the wife based on acquisition of dental degree;

Husband's copyrights;

2007 Honda Pilot automobile;

Works of art;

Furniture and furnishings purchased for the marital residence from HELOC, with an estimated value of $50,000.00;

The marital portion of Husband's Director's Guild of America retirement benefits;

10. Two 529 College Savings Accounts;

11. The Citibank joint checking account ending in *3624; and

12. Other furnishings, appliances and personal property.

The following assets are classified as separate property:

1. The wife's 401(k) account from her time at Jenner & Block;

2. The Citibank account ending in *3139 opened by plaintiff on 1/30/97;

3. All other bank accounts in the parties' individual or business names;

4. Husband's film "Home";

5. Artwork owned by plaintiff prior to the marriage; and

6. Furniture and other personal properties owned by plaintiff or defendant prior tothe marriage.

The following liabilities are classified as marital debts:

The mortgage on xxx St. John's Place with a balance of $711,300.00 according to the parties' respective Statements of Proposed Disposition;

The home equity line of credit (HELOC) with a balance of $499,280.00 according to the [*22]parties' respective Statements of Proposed Disposition;

Plaintiff wife's student loans with an outstanding balance of $86,822.00 according to the parties' respective Statements of Proposed Disposition; and

The C/T loan, for the purchase of and renovations to the marital

residence.

The following assets are classified as separate debts:

1. The $30,000 borrowed against the HELOC by plaintiff post-commencement;

2. The $31,000 borrowed against the HELOC by defendant post-commencement;and

3. The $11,203 borrowed by defendant against the joint Citibank checking over draft

Account *3624, post-commencement.

EQUITABLE DISTRIBUTION

The premise of the equitable distribution law as it has been written and interpreted by the courts of this state is that marriage is an economic partnership. O'Brien v O'Brien, 66 NY2d 476 [1985]. In Price v Price, 69 NY2d 813 [1986], the Court of Appeals recognized this concept stating: "The Equitable Distribution Law reflects an awareness that the economic success of the partnership depends not only upon the respective financial contributions of the partners, but also on a wide range of non-remunerated services to the joint enterprise, such as homemaking, raising children, and providing emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home."

The court in Conner v Conner, 97 AD2d 88 [2nd Dept 1983] voiced its opinion stating: "According to the Assembly memorandum in support of the new law, the basic premise for the marital property and alimony (now maintenance) reforms of this legislation (§236) is that modern marriage should be viewed as a partnership of co-equals. Upon the dissolution of a marriage, there should be an equitable distribution of all family assets accumulated during the marriage and maintenance should rest on the economic basis of reasonable needs and the ability to pay. From this point of view, the contributions of each partner to the marriage should ordinarily be regarded as equal and there should be an equal division of family assets, unless such a division would be inequitable under the circumstances of the particular case." Id. at 96.

Valuation Date Domestic Relations Law section 236 B(4)(b) provides in pertinent part: "The valuation date or dates may be any time from the date of commencement of the action to the date of trial."

As to the valuation of specific assets, the court in Wegman v Wegman, 123 AD2d 220, 234 [2nd Dept 1986] found that "[I]f an asset increases in value due to market forces or inflation, valuation as of the date of commencement of the action would result in a windfall to the titled spouse and injustice to the other. If the asset greatly decreased in value a court which values assets might make a distributive award that is beyond the owner spouse's ability to pay (citations [*23]omitted)."

Thus, a passive asset is properly valued at the date of trial whereas an active

asset may be more appropriately valued at an earlier time. The court noted "[a]n asset such as, for example, a business, might suddenly appreciate in value due solely to the efforts of the owner spouse. If a considerable period of time has elapsed since the date of commencement or the date of separation, the court might be justified in establishing a valuation date earlier than the date of trial." Wegman, 123 AD2d 220.

Furthermore, the party seeking the distribution of an asset has the burden of establishing its value. See, e.g, Vainchenker v Vainchenker, 242 AD2d 620 [2nd Dept 1997]; Amisson v. Amisson, 251 AD2d 274 [2nd Dept 1998]; Harris v. Harris, 242 AD2d 558 [2nd Dept 1997]; Iwahara v., Iwahara, 226 AD2d 346 [2nd Dept 1996]; Kaye v. Kaye, 192 AD2d 365 [1st Dept 1993]; Vogel v. Vogel, 156 AD2d 671 [2nd Dept 1989]. As regards valuation of a business, "[t]here is no uniform method of fixing the value of an ongoing business for equitable distribution purposes and valuation is properly within the fact-finding power of the trial court." Levine v. Levine, 37 AD3d 550 [2nd Dept., 2007]; Wasserman v. Wasserman, 66 AD3d 880 [2nd Dept 2009]; Bricker v. Bricker, 69 AD3d 546 [2nd Dept 2010]; L'Esperance v. L'Esperance, 243 AD2d 446 [2nd Dept 1997]; Tayar v. Tayar, 250 AD2d 757 [2nd Dept 1998]; Miness v. Miness, 229 AD2d 520 [2nd Dept 1996]; Daddino v Daddino, 37 AD3d 518 [2nd Dept 2007]. "The determination of a fact-finder as to the value of a business, if it is within the range of the testimony presented, will not be disturbed on appeal where valuation of the business rested primarily on the credibility of expert witnesses and their valuation techniques." Ferraro v. Ferraro, 257 AD2d 596 [2nd Dept 1999], quoting Dempster v. Dempster, 236 AD2d 582 [2nd Dept], appeal denied 90 NY2d 806 [1997], quoting Matter of Penepent Corp., 198 AD2d 782, 783 [1993]; L'Esperance, 243 AD2d 446, 447 [2nd Dept 1997]; Wasserman v Wasserman, 66 AD3d 880.

Statutory Factors

The Court is mandated pursuant to Domestic Relations Law Section 236B(5)(d) to consider 13 factors in making its decision as to the equitable distribution of the marital property.

1. Income and Property

At the time of marriage, July 1, 1998, plaintiff wife was 37 years old and defendant husband was 32. Plaintiff, at the time of the marriage, had just left her job at the Chicago law firm of Jenner & Block, where she worked after earning her law degree from Harvard Law School. At this law firm she was making approximately $200,000 annually. When she left the firm, she received $144,678 as a distribution of her equity share of the partnership. The records indicate plaintiff had approximately $145,000 in the bank [FN5] at the time she left the job, plus her 401(k) which she accumulated while she was at the firm. When she and defendant moved to New York City, plaintiff enrolled in the NYU School of Dentistry. She received a full [*24]scholarship that covered her tuition. Nonetheless, plaintiff took out student loans totaling approximately $100,000 to cover household expenses. It seems she also dissipated the funds she received from the equity distribution of the law firm partnership. At the time of the marriage, defendant was working as a second assistant director, primarily for television. He has since been employed for many years as a first assistant director. He received his B.A. in political science from Stanford University.

At the time of the commencement of the action on May 16, 2011, plaintiff was working as a dentist with her own practice. According to her 2010 tax return, in that year she earned $264,495 in salary from her wholly - owned Subchapter S corporation named Ada S. C D.D.S., P.C. In addition, she reported $19,817 in income from "shareholder distributions" from her dental practice, and a $1,500 honorarium. Her gross (and adjusted gross) income for 2010 was $285,845.

However, an examination of the corporate tax return for 2010 for plaintiff's business reveals that the corporation reported $750,000 in gross revenue. After paying her business expenses and staff salaries, including plaintiff's salary and office rent, there remained only $19,817 in ordinary business income, which plaintiff shows on her 1040 return as "shareholder distribution." The business claimed many deductions, including depreciation of the goodwill she purchased from her father's practice. It is unclear where on the corporate return, if at all, plaintiff allocates her payments of the parties' home equity line of credit, which plaintiff testified were paid by her business, even though only 26% of the sum owed for the HELOC is actually related to her acquisition cost for the business. The return is less than transparent. For example, there is a deduction for $28,000 for "office expenses," which is not salaries or rent and which is not itemized, and there are charitable contributions listed. The court must conclude that plaintiff's actual income is somewhat higher than is reflected on her 1040.

According to her 2011 individual tax return, plaintiff that year earned $221,455 in salary and $49,654 in shareholder distribution income from her dental practice, for a total of $271,109 in gross (and adjusted gross) income. Plaintiff did not provide the court with a copy of the 2011 corporate return for her practice.

In addition to her equity distribution from the law partnership, plaintiff came to the marriage with a Fidelity 401(k) which was accumulated while she worked at the law firm. She has not contributed to this account since the date of the marriage. It is now valued at $121,098. A statement was admitted as into evidence as plaintiff's No.45.

According to defendant's 2010 individual tax return, at the time of commencement, he was earning $159,594 per year—the bulk of which came through his solely owned Subchapter 5 corporation, "Tribal Blues, Inc." and the balance of which came from income from various other production studios, which work was deemed salary and reflected on a W-2. Defendant also claimed in 2010 an additional $32,060 in "S corporation income," his shareholder distribution. Thus, his personal gross income (and adjusted gross) at the time of commencement was $191,988. The 2010 corporate return for his business indicates nominal deductions, such as for meals and travel. While some of the deductions, such as internet and cable services, can be considered both personal and business expenses, the amounts reflected are basically accurately reported. [*25]

According to defendant's 2011 personal 1040 tax return, defendant that year earned $180,180 from his corporation as salary, as well as an additional $7,818 in "S corporation income." Thus, defendant's gross income for 2011 (and adjusted gross) was $188,034. As with the plaintiff, the court did not receive a copy of the 2011 tax return for defendant's corporation.

2. Duration of the Marriage and Age and Health of the Parties

The parties were married on July 1, 1998. Plaintiff is currently 52 years old and defendant is 47. By all indications, at the time of the marriage, they were both in good health. However, in her statement of net worth, plaintiff notes that she suffers from heart disease as well as "multiple right-hand surgeries & injuries." At trial, the plaintiff wife additionally testified that she suffered a heart attack in 2008, though no evidence beyond her testimony was introduced on this issue.

Defendant appears to be in generally good health, and did not claim otherwise.

3. Need of Custodial Parent to Occupy or Own the Marital Residence

There was credible testimony during the custody trial about the children's strong roots in the community and attachment to the martial residence, especially as regards the child Emily and the great degree of anxiety she has apparently experienced as a result of the parties' divorce. The Court is of the opinion that it would be best for the mother (as custodial parent) and for the children to remain in the marital residence until the youngest child is 18. This is discussed in further detail below.

4. The Loss of Inheritance and Pension Rights

The defendant has a pension plan with the Director's Guild of America. Upon entry of the Judgment, the parties will lose their right to inherit from each other unless they specifically make provision in their wills.

5. The Loss of Heath Insurance Benefits Upon Termination of the Marriage

At present, the parties as well as the children are covered by defendant's health insurance. Defendant claims he pays only $1,200 per year for the policy. It is provided through the Director's Guild and, in order for it to be maintained, the defendant must work a minimum (and minimal) number of months per year. The children should remain covered by defendant's insurance. After the Judgment of Divorce is entered, plaintiff will need to obtain her own health insurance policy.

6. An Award of Maintenance

Neither party has requested maintenance.

7. Direct and Indirect Contributions

Testimony and evidence regarding the relative contributions of the parties, both direct and indirect, suggested such contributions were largely equal between the parties. Early in the marriage, the plaintiff attended dental school and, while she did not work, she took out student loans to contribute toward the household expenses. At the time, the defendant was working his [*26]way up from a second assistant director to a first assistant director and his income went toward the rent and support of the family. Once the children were born, both parties continued to work, although plaintiff clearly spent more time attending to the needs of the children. It must be noted that neither party stayed home from work to attend to domestic affairs. Instead a babysitter was hired right after the first child was born, who also assisted with household chores. However, defendant testified that during his hiatus from filming, he oversaw the renovation of the house and did quite a bit of work on the house himself.

After the birth of the children, the parties devoted roughly equal time to caregiving; both parents continued to work essentially full-time jobs (the plaintiff testified that her dental practice allowed her flexibility to choose when to take time off in order to be present for important events such as school plays). A babysitter was hired (Alice) shortly after the birth of the first child and she was paid $550 per week. A new sitter (Valda Martin) was hired in March of 2012. She works four days per week from 7:00 A.M. to 7:00 P.M.. She is paid out of the joint account that the parties maintain. She cooks breakfast, walks the dog, buys groceries, cleans the house, does the laundry and cooks dinner. Ms. Martin testified that the parents share responsibility for taking the children to school and picking them up, and that she does not usually do so.

The evidence indicates that throughout the course of the marriage, both parents worked, earned significant income, and contributed basically equal amounts of their time to the marriage and to raising the children.

8. Liquid or Non-liquid Character of the Marital Property

The parties' marital assets comprise personal property, the marital residence, the husband's pension, cash, 529 accounts, the husband's copyrights, and the businesses owned by each party. The non-liquid assets such as the artwork, the parties' business and the husband's copyrights are discussed below.

9. Future Financial Circumstances of the Parties

Both parties are highly educated, capable individuals. Defendant husband, 47, continues to earn a good living from his work in television and film. He has contributed more or less regularly since 1993 to a pension plan offered by the Directors Guild of America. Defendant husband is in good physical health. Plaintiff wife is 52 and earns a significant income from her dental practice. Plaintiff wife does have some health issues which should not be minimized, but there is no indication that she is either in any immediate peril at the present time, or that her day to day activities have been affected.

The Court notes that the parties have made certain financial choices that have undermined their financial securityfor example, taking out as-yet-unpaid student loans in 1999-2001 to cover household expenses and using HELOC funds rather than a separate business loan to purchase plaintiff's father's client list. The wife hasn't contributed to any retirement account since 1998. There was additional testimony suggesting some thought has been given to taking the money out of the 529 accounts which were created to fund the children's college education. As a result, the court observes that the marital residence and defendant's pension plan are presently the only substantial assets of the marriage—a regrettable fact given that over the course of their lives [*27]both plaintiff and defendant have earned quite a lot of money. The court is confident in the future earning capacity of the parties, and is hopeful the parties will use better strategies going forward to better secure their financial futures and to save for the children's college education.

10. The Difficulty of Valuing Marital Assets

At trial, there was a dispute as to the value of the marital residence. It was the plaintiff wife's contention that the residence was worth $2,100,000 pursuant to the first appraisal and not $2,650,000 pursuant to the (later) appraisal. Both appraisals were admitted into evidence, as well as an appraisal done recently for the wife's application for a mortgage. There was no court-ordered appraisal [FN6]. As the court has determined that the house should not be sold right now, there is no need to decide which appraisal is correct.

While the defendant father created four copyrighted scripts during the marriage, no evidence of their value was put into evidence and the defendant omitted these properties from his Statement of Net Worth. While plaintiff introduced evidence of the existence of these copyrighted works, plaintiff failed to introduce any evidence of their value. Her attorney asked that she be awarded half of any royalties from these works, as and when they are paid to defendant.

There was no evidence presented concerning the value of the parties' art collection.

Finally, there were issues concerning valuation of the parties' respective businesses. These will be discussed in further detail below.

11. The Tax Consequences to Each Party

The parties are not jointly or individually obligated for any outstanding taxes. The equitable distribution plan set forth herein will not have any tax consequences to either party in the near future.

12. The Wasteful Dissipation of AssetsThere was no contention of any wasteful dissipation of assets, and no proof that any such conduct took place. However, both parties could have done a better job in making decisions to minimize the tax consequences to them from their earnings. For example, plaintiff could have contributed to an IRA or otherwise established a pension plan with pre-tax contributions, since she started practicing dentistry more than ten years ago.

13. Transfer in Contemplation of Action

There was no evidence of any transfers made in contemplation of a matrimonial action.

14. Any Other Factors [*28]

There are no other factors the court finds to be just or proper to consider.

THE COURT MAKES THE FOLLOWING FINDINGS CONCERNING EQUITABLE DISTRIBUTION:

A. The Marital Residence

The marital residence is located at xxx St. John's Place, Brooklyn, New York, 11217. It is located in Park Slope, which has become one of Brooklyn's most sought-after neighborhoods.

The parties purchased the marital residence on October 23, 2002 for $910,000. They took title as tenants by the entirety. The closing statement (plaintiff's #32 in evidence) indicates that the parties made a $45,500 down payment with the contract, and at closing received a credit from the seller of $6,915 for termites and other items, which was applied toward their bill from the title company [FN7]. The balance due the seller, $858,384, was paid with a Citibank teller's check for $48,217, and the rest was financed with a mortgage ($647,283 of the $650,000) and a home equity loan ($169,000) from Chase. The closing fees were paid from the parties' joint account. The sum tendered at the closing, after deducting the credit from the seller, was $60,474. According to the HUD-1 RESPA statement, the parties tendered $67,389 at the closing. This does not reflect the credit of $6,915 from the seller. When added to the downpayment, the unfinanced portion of the purchase was $100,974, plus some fees to the bank and mortgage broker which were paid prior to the closing. Plaintiff testified that approximately $28,000 of the downpayment came from the plaintiff's 401(k), another $60,000 came from her sister (this was part of the loan the sister and her husband made to the parties), there was a gift of $60,000 from defendant's mother [FN8] and the rest was from the parties' joint account. It is noted that these sums ($148,000) exceed the amount actually paid ($100,974) and so presumably some of the funds were used for other expenses, such as renovations or moving costs.

The parties maintain that another $140,000 was borrowed from the plaintiff's sister and subsequently was used for renovations to the marital residence. The renovations that were made to the residence were small changes and system upgrades. While the marital residence was under construction, the parties lived with plaintiff's father, and defendant continued working at his regular job. During his hiatus period, instead of taking on additional jobs, he stayed in New York City and oversaw the renovation work.

The first mortgage on the property was refinanced several times, the last resulted in a Consolidation Agreement dated February 17, 2005 in the total sum $820,000. [*29]

The second mortgage was a line of credit, and there was a second line of credit, which were subsequently consolidated and then paid off and a new Home Equity Line of credit (HELOC) for $500,000 was taken out against the marital residence on August 9, 2006. This was used to buy the parties' car, as well as furnishings for the house, payment of income taxes and payment of credit cards. Plaintiff, with defendant's consent, also used this money to purchase a list of dental clients from the plaintiff's father when he retired. Since the commencement date, the plaintiff has withdrawn $30,000 against the HELOC for personal expenses and the defendant has withdrawn $31,000. The total amount due and owning on the HELOC is now $499,280.The loan has only required interest to be paid up to this point. The monthly minimum payments of interest have been paid by plaintiff from her business account, apparently since the HELOC closed.

The three appraisals submitted into evidence by the plaintiff (Exhibits 15, 16 and 17) describe the property as a two-family house with a garden apartment occupied by a tenant, with an owner's triplex above.

The unpaid principal balance on the mortgage and the HELOC combined on the commencement date of May 16, 2011 was approximately $711,300 + $499,280 = $1,210,580. Thus, the approximate value of the equity in the home is $1,369,490. ($2,650,000 - 1,210,580).

The parties disagree as to the proper disposition of the residence. Plaintiff wife in her Statement of Proposed Disposition offers two alternatives for the disposition of this asset: (1) Plaintiff wife purchases defendant husband's interest in the marital residence, and take over the mortgages, for a sum certain which she has calculated;[FN9] (2) the parties continue to own the marital residence jointly with the wife solely responsible for all expenses of the marital residence including insurance, utilities and upkeep and payments on the mortgage and the HELOC, as well as "her 50% share of the C/T loan." This arrangement would continue until July 1 in the year following the high school graduation of the youngest of the parties' two children (John). Plaintiff wife in offering these two alternatives hopes to keep the children in the marital residence for the sake of stability.

At trial, plaintiff called a CPA, Richard Terrano, of Marks, Paneth & Shron LLP, to testify as to the closing costs and tax consequence that would arise should the house be sold. Plaintiff's Exhibit 50 details his opinion that $350,710 would be due in Federal, State and City income taxes. Plaintiff's counsel urged the court to allow plaintiff to deduct half this amount, and half the anticipated broker's commission, from the amount plaintiff would need to pay to buy defendant out, since these expenses would not need to be paid. It is noted that the accountant's assumptions were not completely accurate, and he clearly did not have confidence in his calculations or he might have put his name on the document. [*30]

Defendant husband, by contrast, proposes that the court should direct the parties to immediately list the marital residence for sale, and that plaintiff wife should have the first option of buying out his interest at a price that matches the "highest bona fide offer to purchase." Defendant husband stated that he requires his proceeds of the marital residence immediately. There is no reason stated for his position.

In New York State, "there is a well-established preference for allowing the custodial parent to remain in the marital residence with the minor children of the marriage unless that parent "can obtain comparable housing at a lower cost or is financially incapable of maintaining the marital residence, or either spouse is in immediate need of his or her share of the sale proceeds." Nolan v Nolan, 215 AD2d 795 [3rd Dept 1995]; Stacey v Stacey, 52 AD3d 1219, 1221 [4th Dept 2008]; Nissen v Nissen, 17 AD3d 819, 820 [2005]; Goldblum v Goldblum, 301 AD2d 567, 568 [2nd Dept 2003]; see also Domestic Relations Law § 236 [B] [5] [f]." Sember v Sember, 72 AD3d 1150, 1151 [3rd Dept 2010].

The courts have interpreted this to be akin to a presumption, and it can be analogized that the burden is shifted to the other spouse to overcome the presumption. The three issues that must be addressed are whether the parties were capable of maintaining the marital residence, whether suitable comparable housing could be obtained at a lesser cost than the cost to maintain the marital residence, and whether the non-custodial parent can establish an immediate need for his share of the proceeds of the sale of the marital residence. Mosso v Mosso, 84 AD3d 757 [2nd Dept 2011], citing Poretsky v Poretsky, 176 AD2d 713, 714 [2nd Dept 1991]. Thus, "In making this determination, the need of the custodial parent to occupy the marital residence is weighed against the financial needs of the parties'" Id.

In the case before the court, there was no evidence introduced whatsoever by defendant to establish that he had an immediate need for his share of the proceeds from the sale he requested. Further, there was no evidence on the issue of whether comparable housing could be obtained by plaintiff at an equal or lesser cost. Plaintiff did introduce into evidence the mortgage commitment she obtained, for $1,500,000, which indicates she can afford to make all of the monthly payments necessary to remain in the house without any financial assistance from defendant, as long as she can apply the rent from the tenant toward her expenses.

Thus, the court is to compare the need custodial parent to occupy the marital residence against any demonstrated need of the parties for a quick sale of the marital residence. Donna E.F. v Anthony S.F., 2007 NY Misc LEXIS 6383 [Sup Ct Westchester Co 2007], citing Blackman v. Blackman, 131 AD2d 801, 804, [2nd Dept 1987]. Sale of the marital residence is warranted so long as comparable replacement housing can be found by the parties. Donna E.F. v Anthony S.F., 2007 NY Misc. LEXIS 6383, citing Behrens v Behrens, 143 AD2d, 619; Campbell v. Campbell, 286 AD2d 467, 468 [2nd Dept 2011]. If no evidence is offered that comparable housing was available in the same area at a lower cost and that the sale of the house would help alleviate the parties' financial difficulties, ordering sale of the marital residence may be improper. Donna E.F. v Anthony S.F., 2007 NY Misc. LEXIS 6383 [refusing to order sale of marital residence, inter alia, "because defendant husband offered no proof as to the availability of comparable housing in the event asale of the home was directed"]. See also Waldmann v Waldmann, 231 AD2d 710, 711, [2nd Dept 1996], lv. denied 89 NY2d 809 [1997] [Affirming [*31]award to the wife of exclusive use and occupancy of the former marital residence where "[t]he husband failed to establish that comparable housing was available to the wife in the same area at a lower cost"]; Boyajian v Boyajian, 194 Misc 2d 756, 764-765 [Sup Ct Nassau Co 2003] [Granting wife exclusive use and occupancy of marital home "until the earliest occurrence of either the youngest child attaining the age of eighteen or becoming sooner emancipated, or [her] remarriage," where "the record [was] barren of any evidence that [she] could obtain comparable housing at a lower cost"].

As the Donna E.F. court observed: [E]ven if is established that one party needs the funds from a sale of the home, that relief is not appropriate if it would cause instability in the children's lives (Gundlach v. Gundlach, 223 AD2d 942, 943 [3rd Dept], lv. denied 88 NY2d 802 [1996], abrogated on other grounds by Redgrave v. Redgrave, 304 AD2d 1062 [3rd Dept 2003] [Trial Court correctly granted wife exclusive use and occupancy of the marital home until the parties' youngest child was emancipated, where "the children's roots [we]re in the neighborhood where the marital residence [wa]s located and such occupancy provide[d] the stable environment that Supreme Court felt was necessary to the children's best interest"] (some citations omitted).

Donna E.F. v Anthony S.F., 2007 NY Misc LEXIS 6383 [holding inter alia that because both children of the marriage had lived in marital residence all their lives and defendant husband had adduced insufficient proof of his need to obtain the proceeds of the sale of the home, it was proper for plaintiff wife to remain in marital residence with children rather than order a sale of the home].

Even where the party urging a sale of the marital residence is able to establish the need for funds from a sale of the home, " that relief is not appropriate if it would cause instability in the children's lives." Donna E. F. v Anthony S. F., 2007 NY Misc LEXIS 6383. Where children of the marriage have roots in the neighborhood where the marital residence is located—such as an established attendance at a particular school, friendship base, etc.—such roots can outweigh any claimed need by a party for access to funds resulting from an immediate sale of the home. Donna E.F. v Anthony S.F., 2007 NY Misc LEXIS 6383 citing Nissen v Nissen, 17 AD3d 819, 820-821 [3rd Dept 2005]. Moreover, where a child of the marriage is evincing problems following parties' separation such that treatment by a counselor is necessary, allowing the custodial parent to remain in the marital residence to allow the children stability is appropriate. Id.

Where, as here, the evidence at trial establishes: (1) that the party to occupy the marital residence is financially capable of maintaining the marital residence; and (2) suitable comparable housing could not be obtained at a lesser cost than the cost to maintain the marital residence, an award of exclusive possession of the marital residence to the custodial parent is proper. Mosso v Mosso, 84 AD3d 757, 760 [2nd Dept 2011]; Mazzone v Mazzone, 290 AD2d 495, 496 [2nd Dept 2002]; Poretsky v Poretsky, 176 AD2d 713, 714. Further, where as here, the party petitioning for sale of the marital residence fails to establish an immediate need for his share of the proceeds of the sale of the marital residence, an award of the residence to the custodial parent is proper. Mazzone v Mazzone, 290 AD2d 495, 496 [2nd Dept 2002], citing Waldmann v Waldmann, 231 [*32]AD2d 710 (1996). See also Greisman v Greisman, 98 AD3d 1079 [2nd Dept 2012].

In the instant case, while the court is not insensitive to the defendant husband's contentions that his financial circumstances require an immediate injection of cash, which the sale of the marital residence might provide, it nonetheless remains true that defendant failed to demonstrate a verified need in this regard, considering his earning abilities and his excellent prospects for his future earnings. Moreover, while defendant testified at trial that he believed the marital residence should be sold because plaintiff wife cannot afford the $1.5 million mortgage she obtained a commitment for post-commencement, he failed to offer any admissible proof of this contention. Indeed, plaintiff wife's own tax returns and financial documents submitted to the court demonstrate an ability to pay this mortgage, and the bank offered her the financing.

In making its decision, the court took note of the children's strong attachment to the martial residence, especially as manifested by the high degree of anxiety displayed by the child Emily. Further, the Court also took judicial notice of the rising property values in the neighborhood where the marital residence is located. Clearly, it would hardly be equitable to allow plaintiff wife to "buy out" defendant now, as she proposes, and then sell the property at a later date and solely enjoy the benefits of the property's appreciation over the intervening time. It was also troubling that she indicated she would move to Westchester if she has to sell the house, as she could not afford an equivalent amount of space for any where near the cost of the home. This would totally disrupt the children's home life and would cut off their father from their daily lives and undermine his relationship with them.

The court grants the plaintiff exclusive possession of the marital residence until the youngest child turns 18 or is otherwise emancipated, whichever comes first, subject to the mortgage thereon. The wife shall be allowed to refinance the mortgage in joint names, with an amortizing mortgage instead of half-million dollars interest-only HELOC, should she wish to. If she borrows more than the amount due on the date of commencement, she must repay that sum from her share of the proceeds when the house is sold.

Since the property is to remain jointly owned, no documents need to be signed to effectuate this transfer. As per her Statement of Proposed Disposition, plaintiff wife " shall be solely responsible for all expenses of the marital residence including insurance, utilities and upkeep and payments on the mortgage and the HELOC." She may collect the rental income from the unit that is rented, and apply it toward the expenses for the house. Commencing with calendar year 2014, she must report the rent on her tax return exclusively, and may deduct all of the mortgage interest and property taxes on her tax return as well. For 2013, the parties may share the income and deductions one-half each, as they have done in the past. In the event the house needs any repairs above and beyond those that cost $750 or less per repair, defendant shall reimburse plaintiff for one half of such cost within 30 days of receiving the bill. The law in New York does not permit this to be an "open-ended obligation," which might result in the party with exclusive possession going overboard with alleged "repairs." While there is no indication such an inequity would occur here, the court is required to put a cap on defendant's obligation with respect to future repairs. Mosso v Mosso, 84 AD3d 757, citing Sember v Sember, 72 AD3d 1150. Thus, his obligation shall be capped at $5,000 per year. Anything above that shall be plaintiff's obligation. Presumably this will "encourage" her to make modest repairs. [*33]

Upon the youngest child's turning 18, or at his date of emancipation, whichever is earlier, the house shall be put up for sale with a listing broker selected by the defendant. If he wants to try to avoid a broker's commission, he may opt to list the property for sale and show it himself, if plaintiff consents. Upon closing, the outstanding balance of the mortgage should be paid (any sums above the amount due at commencement ($1,210,580) must be paid from the wife's share, not "off the top"); the wife shall be entitled to a credit for the sum that reflects her payments toward the principal of the mortgage from September 1, 2013 to the date of closing [FN10]. Any sums left after paying the closing costs and adjustments and the broker's fee, if any, shall be distributed 50% to each party. Each shall be responsible for any income taxes due on his or her share.

The wife shall not offer a renewal of the lease thereof to any tenant, nor offer any new lease to a prospective tenant, beginning one year prior to John's 18th birthday.

In the event defendant does not move out of the guest room by September 1, 2013, he should commence paying plaintiff use and occupancy in an agreed-upon amount.

B. The Parties' Businesses.

The valuation of a business for equitable distribution purposes is an exercise properly within the fact-finding power of the trial court, guided by expert testimony. Bricker v Bricker 69 AD3d 546, 547 [2nd Dept 2010].

The plaintiff asserts in her Statement of Proposed Disposition that no expert appraisal was prepared as to the value of the parties' respective businesses. However defendant entered into evidence at trial a preliminary report by David Gresen, CPA, Klein Liebman & Gresen, LLC, which values both plaintiff and defendant's respective businesses, and he testified at the trial at defendant's request. Moreover, his evaluation was (necessarily) done with the consent of plaintiff as plaintiff was required to provide the firm with financial and personal data and did so, and also completed their forms, provided her resume and transcripts, a statement of net worth and other documents and participated in a telephone interview, all of which allowed them to determine the value of her dental practice. The appraisal values are as of the date of commencement, May 16, 2011, and the value for her dental practice was determined to be $455,000 using the "Price to Revenue Method," her enhanced earning capacity as a result of obtaining her dental license during the marriage as zero, and the defendant's business, $124,000. In addition, an alternate calculation of the business appraisal was performed at the request of plaintiff's attorneys, using the Excess Earnings Method. Their conclusion, using those calculations, is that the date of commencement value of the business was $316,000. The court agrees this is the proper valuation date for the dental practice. It is noted that the parties each paid $2,500 for the preliminary appraisal report, plaintiff paid an additional sum for the alternative calculation, and defendant paid the witness $6,000 to come to court and testify.

It is clear that the parties engaged this firm to do the appraisal, but did not authorize them to complete it, and so the report is "preliminary." When asked on the witness stand what else needed to be done to change it from preliminary to "final," Mr. Gresen indicated he would have [*34]audited the books and records to confirm that the information he was provided was accurate. However, he was not asked to do anything further after he issued his preliminary report. The court finds his testimony was credible, that he is in the business of appraising business, has testified in many trials, and that his expertise could be relied upon.

Defendant's business, "Tribal Blues, Inc."

Defendant formed this corporation in 1999, shortly after the marriage. It is not a true business, as it is personal to him and not saleable. He testified that some film and television producers require its employees to be salaried, with a W-2 at the end of the year, and some permit the pay to be to a business and this permits their employees to take business-related deductions which might not be deductible otherwise. It is noted that whatever form he is paid, defendant is considered an individual employee for purposes of the Directors Guild of America's pension and health plans.

In this case, it is clear that the husband's business, valued by the Klein Liebman & Gresen LLC report at $124,000.00, is little more than a device which he uses as a conduit to receive payment for work he is hired to do. Further, plaintiff wife has not made any contribution toward his business, such as it is. He was engaged in the same type of work before the marriage, and during the marriage has been promoted to first assistant director from second assistant director without any further education or training.

The court has determined that plaintiff is not entitled to any share of the value of defendant's business, both because she did not make any contributions toward it and because it is not a true business, but a conduit for those of his jobs that permit him to bill as a free-lancer instead of as an employee. There was no "initial investment," and the business cannot be sold.

Plaintiff's dental practice, "Ada S. C, D.D.S., P.C."

The husband has made some contributions toward the plaintiff's ability to establish her dental practice. First, he worked for the four years that she attended dental school during which she did not contribute to the family income other than $25,000 per year in student loans [FN11]. While ordinarily this factor would be related to the contributions towards a party's enhanced earning capacity and not an equitable distribution award of a business, it is noted (and described further below) that the parties mutually agreed that plaintiff would attend dental school, with an understanding that she would not make as much money as a dentist as she would be expected to earn as a partner in a law firm. As a result, the four years of dental school did not increase her earning capacity. During some of the time she was in dental school, the parties were able to live rent-free at her sister's home, only paying utilities, but after the first child was born, the student loans would have covered little more than the cost of babysitters. Second, defendant permitted $130,000 of the party's HELOC to be used to purchase part of her father's client list when he retired and closed his dental practice. The amount paid was based upon an independent appraisal of the value of the goodwill of his practice prior to his retirement. This "initial investment" enabled her to start her practice "on the ground running," and it can only be assumed that her [*35]income in the first year of the practice was considerably higher than it would have been otherwise. Third, the defendant agreed that considerable marital resources could be used for child care and homemaking services to enable the plaintiff to go to school and then to work and build up her practice. The wife's practice consists of little more than the value of her goodwill, as she doesn't own the office lease or any of the equipment in the office other than a computer, and instead rents a part of a dental office and the equipment in it, including phones, furniture, dental chairs and x-ray equipment.

The next issue is which method of calculating value should be utilized. The Excess Earnings Method is a hybrid income approach, and involves the determination of two components of value: net tangible assets and goodwill. Plaintiff has no net tangible assets other than a personal computer and software designed for a dental practice. Thus, the appraisal of $316,000 can only be assumed to be attributed to the goodwill value of the practice. The Price to Revenue Method, or Multiple of Revenue Method, is a manner of appraising a business based upon annual revenue, using charts of sales of comparable businesses, which are available to appraisers to determine the value of the business. Mr. Gresen testified that this is an appropriate methodology to use for valuing a dental practice.

The wife's attorneys vigorously objected to Mr. Gresen's testimony and to his conclusions, claiming that Mr. Gresen never did an appraisal, and only did a "calculation report." While this is true, it was plaintiff's choice to stop the work before he could verify the income and expenses she reported on her business income tax returns. At this point, if her corporate tax returns were not correct, this fact should be interpreted against her interests, not against the defendant's.

While there is no uniform method for fixing the value of an ongoing business for equitable distribution purposes, the excess earnings method is appropriate to value an interest in a professional partnership. Rubino v. Rubino, 4 AD3d 516 [2nd Dept 2004]. The excess earning method is based on Revenue Ruling 68-609, and involves the determination of two components of value: net tangible assets and goodwill. Consistent with I.R.S. Revenue Ruling 68-609, goodwill is determined by calculating normalized excess earnings after allowing for a reasonable return on net tangible assets, and then applying an appropriate multiple to these excess earnings. As was stated in Boyajian v. Boyajian, 194 Misc 2d 756, "Both small businesses and professional practices are commonly valued, for purposes of marital dissolution, by using either an income approach or an asset-based approach. The capitalized excess earnings method, which is considered an asset-based approach, is one of the most widely used methods of valuing small businesses and professional practices. The application of said valuation methodology requires that reasonable compensation for the services performed by the owner of the business be deducted from the earnings of the business."

It is noted that there are no unusual circumstances to be considered. The plaintiff's income is stable, her client base is stable, there are no new laws that might affect her practice that were presented to the court, no disasters that affected her gross receipts, or anything that would warrant an adjustment. Luckily, her office was in no way affected by Hurricane Sandy which affected many businesses in the fall of 2012. She is the only shareholder, so there are no minority interests to consider. There is no inventory to value. [*36]

The court finds that it is more appropriate to use the valuation based upon the Excess Earnings Method. This method took into account the absence of tangible assets or a leasehold and factored in the goodwill, based upon three generations of dentists in the C family. The other method, a multiple of gross revenues approach, used comparable sales figures from national reports. These values do not adequately address the fact that Dr. C does not own an office, an office lease, or any equipment, all of which would be part of the ordinary sale of a dental practice in most of the United States. In New York, where office rents are exorbitant, it is not unusual for a professional to rent an office and the equipment necessary for a business.

The final issue is a determination of what percentage of the value should be awarded to defendant as a distributive award. An asset such as a professional practice is not necessarily subject to equal distribution. See Chalif v Chalif, 298 AD2d 348 [2nd Dept 2002]. In this case, the parties were married for twelve years. The business was started in 2006, and was in operation for five years prior to the date of commencement. The husband did not work at the business in any capacity, as did so many spouses in the reported cases. He did not stay home from work to take care of the children. He did acquiesce in the wife's desire to spend a fortune on household help so she could work. While the HELOC was used for the purchase of her father's client list, she made all of the HELOC payments from her office account. The factors to consider are the involvement of the spouse with acquisition, maintenance or increase in the value of the other spouse's business. Schwalb v Schwalb, 50 AD3d 1206 [3rd Dept 2008]. These are often referred to as "direct contributions." Also to be considered are the spouse's contributions as caretaker of the parties' home and children, which allows the other spouse to focus on his or her business. These are referred to as "indirect contributions." Elias v Elias, 100 AD3d 938 [ 2nd Dept 2012]. In Kaplan v Kaplan, 51 AD3d 635 [2nd Dept 2008], the court affirmed a distribution of 30% of a spouse's dental practice and license in a marriage of long duration, stating "the award of 30% takes into account the limits of the defendant's involvement with the practice and the attainment of the dental license, while not ignoring the direct and indirect contributions that she made."

The Appellate Division, Second Department recently held in Baron v Baron [71 AD3d 807 (2nd Dept 2010)] that contrary to the plaintiff's contentions, the Supreme Court providently exercised its discretion in awarding the plaintiff a 20% share of the defendant's company. "Although in a marriage of long duration, where both parties have made significant contributions to the marriage, a division of marital assets should be made as equal as possible . . . there is no requirement that the distribution of each item of marital property be made on an equal basis." Griggs v Griggs, 44 AD3d 710, 713 [2nd Dept 2007], quoting Chalif v Chalif, 298 AD2d 348, 349. Here, the 20% share takes into account the plaintiff's minimal direct and indirect involvement in the defendant's company, while not ignoring her contributions as the primary caretaker for the parties' children, which allowed the defendant to focus on his business. See Ventimiglia v Ventimiglia, 307 AD2d 993, 994 [2nd Dept 2003]; Wagner v Dunetz, 299 AD2d 347, 349 [2nd Dept 2002]; Chalif v Chalif, 298 AD2d 348, 349; Granade-Bastuck v Bastuck, 249 AD2d 444, 445 [2nd Dept 1998]. G.K. v L.K., 27 Misc 3d 1239(A) [Sup Ct Kings Co 2010]."

In consideration of the husband's minimal direct and indirect contributions toward the establishment of the plaintiff's business, but cognizant of his support of her for the four years she [*37]was in dental school, and of the parties' first child, who was born during the summer before she started her last year of dental school, the court awards him as his equitable share of her dental practice, twenty-five (25) percent of the value of Ada S. C D.D.S., P.C. as determined as of the date of commencement, $316,000, which is $79,000, as his distributive award. However, as is discussed further below, the husband is also entitled to a credit for his one-half share of the HELOC funds used to purchase the client list acquired by the plaintiff as the "initial investment" in her business. As payments thus far have been interest-only, the full $130,000 is still due and owing.

The court hereby awards both plaintiff and defendant sole interest in his or her respective business corporations.

C. Enhanced earning capacity of plaintiff wife

Domestic Relations Law Section 236B(5)(e) states that where equitable distribution of marital property is appropriate but "the distribution of an interest in a business, corporation or profession would be contrary to law" the court shall make a distributive award in lieu of an actual distribution of the property. "The words mean exactly what they say: that an interest in a profession or professional career potential is marital property which may be represented by direct or indirect contributions of the non-title-holding spouse, including financial contributions and nonfinancial contributions made by caring for the home and family." Obrien v Obrien, 66 NY2d 576, 584 [1985].

According to Mr. Gresen's testimony at trial, as well as his valuation report entered into evidence by the defendant, the plaintiff wife's enhanced earning capacity from acquisition of her dental degree is zero. It is noted that the plaintiff left her position as equity partner's at a law firm and attended dental school with the full consent of her husband, and that both parties understood this would allow her to earn a substantial salary, but was unlikely to enhance her earning capacity. If she was still an equity partner at a law firm, it is implied her earnings would be higher than they are now. Thus, regardless of whether defendant husband made non-monetary contributions to the achievement of the dental degree, there can be no distribution of any such value where the value of plaintiff's enhanced earning capacity is zero.

D. Value of defendant husband's copyrights

Concerning the husband's copyrights, during trial, defendant acknowledged he has copyrighted four scripts which are not listed in his Statement of Net Worth: "Home," "The Other Ones," "Brooklyn Psych, (a/k/a Once Upon a Time)" and "The Window." One of these, Brooklyn Psych, has been optioned to CBS, and is in "re-write." Another is for a screenplay that has already been filmed; the film has been sold. The others are both unproduced and unsold. In addition, "The Window" was made into a short film, which is a fifth copyrighted work. It was shown at several film festivals, including Sundance. Plaintiff's Exhibit 56 is a printout of the copyright registrations.

Regarding the value of the defendant husband's copyrights, no proof was adduced at trial regarding their value and, as such, as the plaintiff admits in her Statement of Proposed Disposition, there can be no distributive award in this decision to her, or any credit or offset. However, plaintiff is entitled to receive half of such sums paid to defendant for the sale or use of [*38]these works, as they were created entirely during the marriage. However, if defendant is required to adapt, modify, revise or otherwise spend time changing the scripts, plaintiff is not entitled to any compensation he earns for any future modification to the works. It is expressly noted that the film "Home" was made by defendant after the date of commencement, and while also a copyrighted work owned by defendant, the film is not included in the five copyrights determined to be marital property described above.

Plaintiff is hereby awarded 25% of any fees or royalties defendant earns from the four copyrighted scripts, as well as 25% of any sums earned from the sale of all or any part of the copyrights, or any sums paid for the right to make any derivative works from the scripts, or any sums earned from distribution of the short film "The Window," as and when such sums are received by defendant.

E. 2007 Honda Pilot

The parties' vehicle was valued at approximately $18,000.00 on the date of commencement and a copy of the printout from kbb.com that reflected the agreed-upon value was admitted into evidence. The court hereby orders that title to the vehicle be transferred to the plaintiff wife. Because the parties purchased the vehicle outright, there are no outstanding financial obligations such as a lease or payments for the plaintiff wife to make other than insurance and repairs. The defendant shall receive a credit for half the value of the vehicle.

F. Works of Art

Only plaintiff's Statement of Net Worth lays out estimated values for the artwork, which apparently decorates both the marital residence as well as the wife's dental office. In her Statement of Net Worth, plaintiff claims that $4,500 worth of artwork is marital property while $11,000 worth of artwork is plaintiff's separate property. The defendant husband's Statement of Net Worth, by contrast, indicates the value of such artwork to be unknown. On page six of his Statement of Proposed Disposition, however, defendant has included a chart proposing a division of certain artwork, furniture and property between husband and wife. Therein he indicates that there are "African Masks," "Japanese Prints," and "Art Acquired through Her Practice." Whether these items are included in the wife's estimated valuation or represent the entire art collection owned by the parties is unknown.

Without more proof—such as an inventory of exactly what artwork exists, an appraisal of its current value, an accounting of what funds were used to purchase the artwork, and receipts demonstrating when it was purchased, the court is unable to make a distributive award beyond awarding the husband $2,225 for his share of the artwork which the wife concedes is marital property. In the alternative, if the parties can agree on a method to fairly to distribute the artwork in a manner acceptable to both parties, in lieu of this payment, they should do so.

G. Home Furnishings

From the testimony of the parties at trial, as well as the parties' statements of net worth, the approximate value of the home furnishings (which were custom-made) was established to be $50,000. Neither party claimed the purchase price was not the current value. The court hereby awards the plaintiff wife ownership of the furnishings with a credit to the husband of half their agreed upon value ($25,000). [*39]

H. Husband's Retirement Benefits

A pension earned during a marriage and prior to the execution of a separation agreement or the commencement of a matrimonial action is marital property subject to equitable distribution. See, Olivo v Olivo, 82 NY2d 202 [1993]; Fagan v Fagan, 2 AD3d 394, 395 [2nd Dept 2003]; Silver v Silver, 278 AD2d 478, 479 [2nd Dept 2000] [the court providently exercised its discretion in limiting the wife's equitable share of the plaintiff's pension plan to 50% of that portion earned during the period beginning with the date of the marriage and ending with the date of commencement of this action]. The marital portion of defendant's pension is thus marital property.

Defendant's pension consists of both a defined benefit plan and a defined contribution plan, called the "Supplemental Plan." The latter plan can be taken in a lump sum, in monthly payments, or a combination of both. The defined benefit plan entitles the retiree, and any ex-spouse who has rights to collect pursuant to a QDRO, to monthly payments following retirement.

There was an appraisal conducted by Pension Value Actuaries which was not admitted into evidence because the attorneys wouldn't stipulate, the appraiser was unavailable and it was not a court-ordered appraisal. There were also three appraisals done by Lexington Pension Consultants, Inc. One appraisal estimated the present value of the marital portion of defendant's pension assuming he would work until 55, and the other assumes he will work until 65. Neither is accurate, as the appraiser was asked to use the trial date value instead of the commencement date value of the pension. As a result, post-commencement contributions and appreciation skew the results. There was no evidence presented at trial on the issue of whether defendant has continued to contribute to the Supplemental Fund since the date of commencement or if the value of the account has gone up as the stock market has gone up. It is presumed he has continued to contribute.

The third appraisal uses the commencement date value but assumes defendant will retire at 55, then erroneously concludes he can take a lump sum distribution at 55 of his Supplemental Plan, which is a defined contribution plan. This is inaccurate. To avoid the 10% penalty in the Internal Revenue Code, you must wait until 59½ and the plan document says you must wait until after you turn 60.

Plaintiff has requested that her interest in defendant's pension be used as an offset allowing her to purchase his share of the marital residence. The court has already determined it to be inequitable to permit a buyout, but must also note that the submission to the court by the parties of three different valuations of plaintiff's pension, never mind a fourth that was not admitted, would make the calculation of such an offset questionable in any event. Furthermore, as plaintiff has failed to establish any retirement assets of her own other than her pre-marital 401(k), waiving her interest in defendant's pension would not be financially prudent.

The appropriate division of these assets is by a Qualified Domestic Relations Order (QDRO). The plaintiff is to receive one-half of the marital share of the defendant's pension benefits (defined benefit) with the Directors Guild of America, without consideration of any outstanding loans, if any, at the time of retirement, which loans or any reduction in monthly pension payments as a result thereof, shall be allocated solely to the husband's share, by utilizing [*40]the Majauskas formula. The "Majauskas formula," or "Majauskas fraction," is a method the courts use for the calculation of pension benefits which are available for distribution in the future and which were acquired during the marriage. Majauskas v Majauskas, 94 AD2d 494 [4th Dept], aff'd, 61 NY2d 481 [1984].

The marital share of the retirement benefits due the non-employee party is calculated by utilizing the following formula: The number of months of the marriage during which benefits were accumulated, including the months prior to commencement of the matrimonial action, is the numerator, and the total number of months during which benefits accrued to the employee party, from the date of employment to the date of retirement, is the denominator of the fraction. The non-employee spouse is entitled to a portion of this fraction of the employee spouse's pension, which is the marital share. See, Szulgit v Szulgit, 92 AD2d 712 [4th Dept 1983]. That is, a percentage of the marital share is awarded to the non-employee spouse, which is the equitable distribution share. Zacharek v Zacharek, 116 AD2d 1004 [4th Dept 1986]; see also Annis v Annis, 189 AD2d 846 [2nd Dept 1993]; Majauskas v Majauskas, 94 AD2d 494.

With regard to the defendant's Supplemental Plan, a defined contribution plan, the appraisal from Lexington Pension Consultants, Inc. dated April 23, 2013 states that the marital portion, as of December 31, 2012, was valued at $132,702. This appraisal does not use the commencement date and then add appreciation (but not subsequent contributions), as would be the preferable method, but this was the only appraisal in evidence. There was an update prepared by Lexington at the request of defendant's attorney, which is dated May 20, 2013. Plaintiff's counsel stipulated that the court could consider it, as it was completed after the trial. It does not even reference this fund. Plaintiff is entitled to one-half the marital portion, or $66,351.

It is noted that once the account is set up in plaintiff's name, she will be entitled to receive a lump sum, monthly payments or a combination, at her 60th birthday, without any requirement that defendant turn 60 or that he retires.

A QDRO will be required to accomplish the division of these assets. The QDRO must be submitted within 60 days of the judgment. Any fee required to file the QDRO with the Director's Guild shall be paid by plaintiff. Until such time as the QDRO is filed, defendant shall not change the beneficiary of his pension plan, the beneficiary being plaintiff, but if it is not plaintiff, he shall change it immediately so plaintiff is the beneficiary, and shall not change it until the QDRO is filed.

I. 529 College Savings Accounts

Only plaintiff wife's Statement of Proposed Disposition addresses the assets. There is an account for each child. Emily's account is #xxxxxxxxx-02, and John's is #xxxxxxxxx-03. It is unclear from the exhibits, #s 41 and 42, which parent is the owner of the accounts, but plaintiff testified that they were in defendant's name. Each account currently valued at approximately $38,000. Plaintiff proposes that each party have transferred into their name one of the accounts to be held for the benefit of the applicable child.

The court disagrees with this proposal, as the owner of the account until the funds are transferred to a college, is the parent, and the funds can be transferred between the accounts or to the college and used for either child. Therefore, it makes the most sense that one parent have [*41]control over both accounts. Both accounts shall remain in the name of defendant husband, to be held for the benefit of the children. He shall not withdraw funds from either account except for the purpose of paying for college tuition, room and board or related expenses for the children, as the parties deem appropriate. He shall send copies of the annual statements to plaintiff.

Nothing herein shall prohibit either parent from setting up or contributing to a new 529 account for the children or either of them.

J. Bank Accounts

Only the plaintiff wife's Statement of Proposed Disposition includes a recommendation for these assets—specifically stating, "[t]he parties shall equally divide the value of the bank accounts as of date of commencement, regardless of title." This proposed division of the accounts does not include the accounts titled in the name of the husband's business "Tribal Blues" (Chase *3265) or wife's dental practice. "Ada S. C, D.D.S., P.C." (Chase *0865). Defendant's Statement of Proposed Disposition, by contrast, is silent with regards to the parties' bank accounts.

Other than the parties' joint account at Citibank, plaintiff's separate account at Citibank, and each parties' business account, there was no evidence of any other bank accounts in existence on the date of commencement.

The testimony concerning the Citibank checking account ending in *3624 is that it is a joint checking account. There was $7,622.00 in the account at the date of commencement (DOC); Plaintiff testified that, after the date of commencement, she no longer used the joint bank account. Before then, she contributed to the joint account as needed. She admitted that the money going into the account is currently solely from the defendant, plus rent from the unit in the marital residence occupied by their tenant. This account is still used to pay many joint expenses, including the mortgage, telephone, electric, water, oil, gas, car insurance and Emily's cell phone bill. Defendant testified that he closed his personal bank account when the couple married and thereafter used only their joint account. After commencement of this action, he opened another, separate account, but all of his earnings continued to go into the joint account. In view of the evidence, each party is entitled to one half of the money in the joint account as of the date of commencement, $3,811.00, and the balance, if any, is determined to be defendant's funds. The account shall be closed as soon as possible.

The Citibank account ending in 3139 was opened by plaintiff on January 30, 1997 solely in her name. It had a balance of $8,327 as of July 2, 2012. No proof was adduced at trial as to the source of these funds, or the amount in the account on the date of commencement. As previously stated, the court has determined that this account was initially funded with the proceeds from plaintiff's law firm equity distribution, and thus is separate property. However, to the extent plaintiff spent the funds in this pre-marital Citi Bank account on marital expenses, she converted the funds to marital funds and is not entitled to a credit for these expenditures.

K. Other Property

The husband has submitted in his Statement of Proposed Disposition a chart specifying the division of the parties' personal property, including the artwork. The wife has merely proposed that the parties divide their furnishings (with the exception of the furniture purchased [*42]with the HELOC funds already discussed), appliances and other personal property equally. Given the lack of testimony and evidence of value for these items, the court can only suggest the parties use the list provided by the husband as a starting point and work out the distribution of these items themselves.

MARITAL DEBTS

A. Mortgage on Marital Residence xxx St. John's Place

According to the parties' respective Statements of Proposed Disposition, the mortgage on the marital residence has a remaining balance of $711,300. At trial, plaintiff wife testified that she has applied to refinance the home and has a commitment for a new, $1.5 million mortgage with a term of thirty years. It would seem to be a good idea for plaintiff to close on this loan, as it will lower the interest rate on the first mortgage and start the HELOC amortizing immediately, as it is now in an interest-only phase and it is now known if it will convert to an amortizing loan, or when. Both parties will be required to sign the mortgage even though the commitment was issued to plaintiff alone, as they are both in title. Plaintiff should be the only party to sign the Note. Closing costs should be paid from the excess proceeds. The plaintiff should consider reducing the amount of the mortgage to an amount that will pay off the mortgage and HELOC and closing costs and perhaps the payments required pursuant to this decision, but not more.

B. Home Equity Line of Credit (HELOC)

The HELOC taken out by the parties in August of 2006 has a remaining balance of $499,280. All payments made in the seven years have been interest-only payments. The testimony at trial revealed that the parties used $130,000 from the HELOC to purchase part of a client list from plaintiff wife's father. The HELOC was also used to purchase the 2007 Honda Pilot and the custom-made furnishings for the marital residence. In addition, $15,000 from the HELOC was used toward the parties' income taxes for one year, and $25,000 was used to pay credit card debt. Presumably the rest was used for home renovations.

After the sale of the marital residence, the remaining balance of the HELOC is to be paid off. The plaintiff may refinance the HELOC as part of any mortgage refinancing and any payments of principal after September 1, 2013 will be then credited to the plaintiff at closing.

Both parties have borrowed HELOC funds for their own personal expenses since the date of commencement. The amount borrowed by defendant is $1,000 more than that borrowed by plaintiff. As such, plaintiff is presently entitled to a $500 credit for the excess funds borrowed by defendant.

The husband is presently entitled to a $65,000 credit for his share of the HELOC funds used to pay for the purchase of the client list from plaintiff's father for plaintiff's dental practice.

C. Plaintiff Wife's Student Loans

As previously discussed, when plaintiff wife went back to school to obtain a dental degree following the parties' marriage, she took out $100,000 in student loans despite her full scholarship to NYU Dental School. According to the testimony at trial, the proceeds of these loans were used for babysitters, medical expenses and household expenses. The parties are thus equally liable for the student loan debt, which at the date of trial was $84,151. Plaintiff's Exhibit [*43]43. It is therefore determined by the court that one half of this sum shall be a credit to plaintiff, as she is solely obligated to make the payments to SallieMae.

D. C/T Loan

Plaintiff testified that in 2001, they asked her sister, Edith C, an executive at Goldman Sachs, for a loan of $200,000 in order to buy a house. At the time, they were living in Ms. C's house in Rye, New York. They agreed $60,000 would be used for the down payment and $140,000 would be used for renovations. Her sister drafted a promissory note, a copy of which was entered into evidence at trial. It took a long time to close on the house, as they purchased it at an estate sale. She stated that they later borrowed another $20,000 from her sister. She does not remember how much of the loan from her sister has been repaid. Her sister has not issued a written demand for payment, nor any statements. On the witness stand, Edith C said she had not brought any papers to court concerning the loan and could not provide the court with any information as to what was paid already and how much was owed.

According to defendant, the couple borrowed $200,000 from plaintiff's sister and brother-in-law; $140,000 on April 1, 2003 and $60,000 on April 1, 2006. He did not recall any further loans. He also disputes the amount plaintiff claims is still due. He is convinced that her sister will gift the money to plaintiff in any event, and did not think it was fair if he was asked to repay any part of it.

Plaintiff's sister, Edith C, testified for the plaintiff. She stated that she and her husband Robert T lent the parties $200,000 on April 1, 2002, which is reflected in a promissory note. There were two different draw-down dates, the first for $60,000, the next for $140,000. Later she lent the parties an additional $20,000. The parties paid one payment of $10,000, which was more than what was due at the time—only interest at 3% was due. There were other payments. She did not bring any records to the court and no statements were ever issued.

The note itself was put into evidence, as were a number of copies of cancelled checks. While there were charts to assist the court in fashioning a distributive award of this debt, defendant's L in evidence and plaintiff's #37, they do not agree with each other. The court reviewed the canceled checks and finds the following to have transpired.

The promissory note was signed on April 13, 2003. It reflects a loan of $200,000. It states that the first draw down had been on April 1, 2002, in an amount not stated, and that the second draw down date would be "mutually agreed upon". An original canceled check (plaintiff's #35 in evidence) indicates the second draw down, of $140,000, was on April 14, 2003, the day after the promissory note was signed. It was cashed on April 21, 2003 and credited to the parties' joint account, according to the bank's endorsement thereon. In November of 2003, another check (#4051) was issued by the C/Ts, for $20,000, payable to Ada C, which was cashed on December 9, 2003, according to the C/T Chase bank statement admitted as plaintiff's #36 in evidence. It is not covered by the terms of the promissory note, unless it is part of the second draw down contemplated therein.

The promissory note requires payments of interest only, at 3% per annum, after the first two years after each draw down, which two years are interest free. Thus, on April 1, 2004, interest on the $60,000 for draw down one would start to accrue, and would need to be paid in [*44]six month intervals. This is $900 every six months, starting October 1, 2004. On the second draw down, the interest would start to accrue on April 14, 2005, and payments every six months would start on October 13, 2005 in the sum $2,100 every six months. Then, on April 14, 2013, the entire balance became due in full. It is noted that this is the court's interpretation, incorporating the testimony of the parties and of Edith C, but the promissory note is less than clear. Plaintiff testified that her sister drafted it, and although she went to Harvard Law School and was a partner in a law firm, she did not want to raise any issues about the lack of clarity of the terms since her sister was being so generous.

Plaintiff's chart indicates that the sum of $70,300 was repaid, and she admitted canceled checks to back this up. Defendant's claims two additional payments of $10,000 each were paid. He concludes that $90,300 was paid. Defendant's Exhibit S comprised a number of bank statements and canceled checks. It is mostly a record of the house renovations and does not contain any checks regarding this loan. Neither party provided any evidence that the required interest payments were made.

The court credits the records of plaintiff and has determined that $220,000 was loaned and $70,300 repaid, leaving a balance of $149,700 due, not including interest, which the C/Ts have made no effort to collect. Defendant thus owes one-half of this sum, $74,850, and a credit in plaintiff's favor is reflected herein, as plaintiff will undertake the repayment of the balance and indemnify defendant from any claims by her sister or brother-in-law.

E. Citibank Line of Credit.

As discussed, the $11,203 borrowed by defendant against the parties' joint Citibank overdraft line of credit (Account # *3624) attached to the joint checking account, post-commencement, is the sole responsibility of defendant.

F. Other Debts

Defendant admitted into evidence a Mastercard statement with Citibank (ending *8777) in his own name. There was no testimony about the account, nor is it reflected on his Net Worth Statement or Statement of Proposed Disposition. Thus, it is assumed that this is his separate debt, as are any other bank or charge accounts in either party's sole name which were not addressed at trial.

ADJUSTMENT SUMMARY

Based upon the foregoing determinations a single adjustment of the monies owed by the parties to each other is appropriate. As determined by the court, the following applies:

CREDITS TO DEFENDANT:Distributive award for 25% of plaintiff's business -$79,000

Vehicle—$9,000

Art Work—$2,225

Home furnishings—$25,000

Money spent from joint HELOC to purchase client list—$65,000 [*45]

Joint account $3,811

Total—$184,036

CREDITS TO PLAINTIFF:

Joint Bank account 3624— $3,811

Excess Funds drawn from HELOC Account $500

Student Loan—$42,075.50

C/T loan $74,850

Total—$121,336.50

As such, plaintiff owes defendant $62,699.50. Payment shall be made within 60 days of the entry of the Judgment of Divorce.

CHILD SUPPORT

Plaintiff's Verified Complaint, filed on May 18, 2011, included an application for custody of, and child support for, the subject children in accordance with the CSSA guidelines. However, since the testimony has established that the husband has been living in the marital residence during the entire pendency of this action and paying the mortgage and other household expenses, while the wife has paid for other family expenses, he has, in essence, been paying his fair share, or more, for support of the children. As such, the husband shall not be liable for any retroactive child support, and his child support payments shall not begin until September 1, 2013, the date on which he shall no longer be obligated to pay any household expenses. Hopefully this will coincide with his moving out of the home.

Calculations Pursuant to the Child Support Standards Act

A.Pursuant to DRL §240(1-b), the court has considered the calculations set forth in DRL §240(1-b)( c ) as well as the factors set forth in DRL §240(1-b)(f), which permits a deviation from the calculations set forth in DRL §240(1-b)(c)(3). If the combined parental income exceeds $136,000 (Social Services Law §111-I), the court must decide the amount of child support based on the combined parental income in excess of $136,000 by application of the guideline formula "and/or" by considering the factors set forth in DRL §240(1-b)(c)(3) and articulate a rationale for its determination of child support. Cassano v Cassano, 85 NY2d 649 [1995]; Mellen v Mellen, 260 AD2d 609 [2d Dept. 1999]; Klug v Klug, 258 AD2d 624 [2d Dept. 1999].

The objective of the statute is to shift the determination of child support away "from a balancing of the expressed needs of the child and the income available to the parents" to a "consideration of a total income available to the parents and the standard of living that should be shared with the child." Cassano v Cassano, 85 NY2d 649, 652. In keeping with this purpose, a court may, in its discretion, apply the child support formula to combined parental income in excess of $136,000 where a consideration of the parties' circumstances demonstrates "no reason why there should be a departure from the prescribed percentage." Cassano v Cassano, 85 NY2d 649, 655; Bill v Bill, 214 AD2d 84 [2d Dept. 1995].

For purposes of calculating child support in this matter, the wife is the custodial parent. [*46]Applying the statutory percentage of twenty-five (25) per cent to the combined parental income provides the appropriate level of support to meet the needs of the parties' children. The parties' children have the right to continue the lifestyle they had before the plaintiff and defendant separated.

With regard to applying the formula to the combined parental income greater than $136,000, the court may either utilize the applicable child support percentage or consider the factors set forth in DRL (1-b)(c)(3) (f) and articulate the reasons for its decision. Cassano v Cassano, 111 AD2d 208 [1985]. After a review of these factors, if the court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, the court shall determine what share would be just and appropriate. Cassano v Cassano requires the court to state the factors which support the conclusion that the formula approach is the one that should be applied in each particular case. These factors as they apply to the instant case are:

1. The financial resources of the custodial and non custodial parent and those of the children. Both of the parties are able to support themselves and the children in a comfortable lifestyle, but the father clearly is the less moneyed party. Further, though the parents both earn substantial incomes, the private school tuition, currently $34,000 a year per child, is a substantial burden.

2. The physical and emotional health of the children and/or special needs. There was testimony at the trial concerning the emotional issues of the children, especially the older child Emily. This has been addressed both by allowing the plaintiff to remain in the marital residence with the children until the youngest child reaches 18 or is otherwise emancipated, and through the add-on for health care costs. It is anticipated that the unreimbursed medical expenses may be considerable.

3. The standard of living the children would have enjoyed had the marriage not been dissolved. The children would have continued to enjoy an extremely affluent lifestyle had their parents remained married; however this decision provides that such needs will continue to be addressed through the child support add-ons, including that providing for their continued private school education.

4. The tax consequences to each party. There are none relevant to this particular issue.

5. The non-monetary contributions each parent will make to the care and well being of the children. Both parents are actively involved in their children's life. As the father will be spending a considerable amount of time with the children, and will need to feed, clothe and entertain them while with him, it is appropriate that support be calculated on $136,000 and not more.

6. The educational needs of either parent. Not applicable to this case.

7. A determination that the gross income of one parent is substantially less than that of the other. Defendant, though clearly earning a substantial income, earns a great deal less than plaintiff.

8. The needs of the children of the non-custodial parent not subject to this action. Not applicable to this case.

9. Extraordinary expenses for visitation. Not applicable to this case. [*47]

10. Any other factors the court considers relevant. None relevant to this case.

The Court has considered all these factors, most particularly, the fact that the defendant will be paying his proportionate share of private school tuition expenses for two children at an expensive private school, as well as his proportionate share for their summer camps, extracurricular activities and child care, and will also be paying to live in an apartment somewhere in the expensive neighborhood which are in close proximity to the children. The court finds these reasons sufficient to not apply the child support formula to the combined parental income over $136,000. See, Frost v Frost, 49 AD3d 1150 [4th Dept 2008]; Blankenship v Kerr, 225 AD2d 645 [2nd Dept 1996]. The Court finds that, under these circumstances, application of the statutory formula to parental income exceeding $136,000.00 pursuant to DRL §240(1-b)(g), would be unjust and inappropriate. See, Frankel v Frankel, 278 AD2d 195 [ 2nd Dept 2000]; Pasol v Pasol 235 AD2d 526 [2nd Dept 1997]. For these reasons and under the circumstances of this case, child support shall be calculated only on the first $136,000.00 of combined parental income. See, Cassano v Cassano, 85 NY2d 649; Navin v Navin, 22 AD3d 474 [2nd Dept 2005].

B.The wife has calculated the parties' adjusted gross income in the CSSA worksheet attached to her Statement of Proposed Disposition, and the husband, in his Statement of Proposed Disposition, has agreed that these numbers are correct. As per this agreement, plaintiff's adjusted gross income is $251,395; the defendant's adjusted gross income is approximately $171,706. The court notes that, even with the requisite statutory adjustments, both parties' incomes are actually higher than what they claim in their individual tax returns, because they both channel their gross income through their Subchapter S corporations, and in plaintiff's case is quite a bit higher, which almost certainly would impact each party's proportionate share of the couple's child support obligations. However, the court will not interfere with the parties' stipulation as to their adjusted gross income. The parties combined income for purposes of calculating child support is thus $423,100.

C.The appropriate child support percentage is 25%.

D.The basic child support is $34,120 (25% of $136,000 is $34,120). The plaintiff's pro-rata share is 59.42% and the defendant's pro-rata share is 40.58%. The defendant's child support obligation is $13,846 per year, or $1,154 per month. Payments shall be made directly to plaintiff by the first of each month.

E.When the oldest child reaches the age of 21, unless the parties return to court to modify the child support based upon a change in income or circumstances, defendant's child support obligation shall be reduced to $9,382 per year, or $782 per month, which is his proportionate share of 17% of 136,000. His child support obligation shall terminate when the youngest child reaches 21 years of age.

It is the determination of the court that the parties shall split the dependency exemptions permitted on their tax returns. Defendant shall continue to claim the older child, as they have done since they "separated" but only if he is current with his child support obligations; plaintiff 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 [*48]limitation IRS Form 8332.

CHILD SUPPORT ADD-ONS

In an effort to simplify the efforts of the parties to comply with this decision, for the purposes of all child support add-ons, plaintiff's pro-rata share is rounded to 60% and defendant's pro-rata share is rounded to 40%.

A.Medical Expenses. Defendant shall continue to maintain medical insurance for the children. Unreimbursed 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 60% for plaintiff and 40% 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 30 days to pay each other their respective shares thereof. Plaintiff shall use "in-plan" participating providers for the children's medical care, except in emergencies, unless defendant consents in writing to an out of network provider.

B. Private School and Extracurricular Activities.

It is settled law that "educational expenses may be awarded where warranted by the best interests of the children and 'as justice requires', upon a showing of 'special circumstances'" Donna E.F v. Anthony S.F., 2007 NY Misc LEXIS 6383, citing Fruchter v. Fruchter, 288 AD2d 942, 943 [4th Dept 2001] [internal citations omitted]. For a court considering a request for the payment of such expenses, "[t]he relevant factors that comprise special circumstances include the educational background of the parents, the child's academic ability, and the parents' financial ability to provide the necessary funds" Donna E.F v. Anthony S.F., 2007 NY Misc LEXIS 6383 [holding that it was proper to require defendant husband to pay the tuition of the parties' children until each child completed the eighth grade, after which time the parties were to pay 50 percent of the parochial school tuition for each child until each child had graduated from high school]; Lannen v. Lannen, 231 AD2d 931, 932 [4th Dept. 1996].

The defendant shall pay directly to the school his (proportionate) 40% share of the children's private school tuition, and directly to the plaintiff his 40% of the children's sports and extracurricular activities fees, including summer camp costs. See Connolly v Connolly, 83 AD2d 136 [1st Dept. 1987].

C. Child Care Expenses.

Domestic Relations Law § 240 (1-b)( c ) (4) instructs the court to apportion reasonable child care costs between the parties if the costs are incurred as a result of the employment of the custodial parent. This is required by the statute. The mother works a four-day schedule and states that she pays the babysitter $950 a week and the sitter does the shopping, cleaning and laundry, takes the children to their extracurricular activities and also cooks breakfast, dinner and walks the dog. Plaintiff stated that all of the sitter's chores emanate from the children. The court finds it perfectly appropriate, given the income of the parties, that plaintiff chooses to pay nearly $50,000 a year for household help to enable her to work. As the children attend school for an extended part of the day, however, the court finds that a child care worker employed for 20 hours a week would be sufficient. At the typical rate of approximately $15/hour, child care costs for 20 hours would amount to $300/week, approximately $1,200/month or $15,600/year. The father's share of [*49]these reasonable child care expenses (40%) is $6,300 a year, or $120.00 a week. If the mother feels she needs additional child care or household help, she may do so at her sole cost and expense. See, Steel v Steel, 152 Misc 2d 880 [Sup Ct NY Co 1990]. Therefore, defendant shall reimburse plaintiff for 40% of the children's child care costs, capped at $120 per week. Defendant's obligation to pay for child care shall terminate when the youngest child turns 13. Plaintiff shall send copies of all bills for child care to defendant promptly.

D. Life Insurance.

"[W]hile Domestic Relations Law § 236(B)(8)(a) empowers the court to order a party to purchase such a policy for the benefit of another, the statute does not mandate that such provision be made" Donna E.F v. Anthony S.F., 2007 NY Misc LEXIS 6383, citing Grenier v. Grenier, 210 AD2d 557, 559 [3rd Dept 1994]. Nonetheless, "[DRL] § 236(B)(8)(a) authorizes an order directing the purchase of an insurance policy on the life of either spouse in order to protect maintenance and child support recipients" Donna E.F v. Anthony S.F., 2007 NY Misc LEXIS 6383, citing Holterman v. Holterman, 307 AD2d 442, 443 [3rd Dept], affd. 3 NY3d 1[2004] [Husband was ordered "to maintain $ 500,000 of life insurance, with [wife] as the primary beneficiary, terminat[ing] upon [husband's] completion of his three obligations to pay the distributive award, child support and maintenance"]. In ordering one or more of the parties to a child support action to maintain or purchase a life insurance policy, the court may consider such factors as the age, health, employment and earnings history of the parties. See Donna E.F v. Anthony S.F., 2007 NY Misc. LEXIS 6383 ["considering defendant [was] only 45 years old, ha[d] no health problems and ha[d] an established employment history with a significant earnings history," the court determined it would " . . . not be difficult for him to obtain a substantial life insurance policy"]. See also Corless v. Corless, 18 AD3d 493, 434 [2nd Dept. 2005] ["Supreme Court erred in failing to direct the defendant to obtain and maintain a life insurance policy to secure his obligation for maintenance and child support"].

During the minority of the children, as security for the parties' obligations for child support, private school tuition and add-ons, both parties shall continue to maintain their term life insurance policies (represented to be coverage of $1 million per policy), in at least the sum $500,000 until Emily turns 21, and then the coverage may be reduced to $250,000, to provide not only basic child support but also to defray anticipated college expenses and other expenses should anything happen to either parent. To be clear, it because a loss of the plaintiff's earnings would eliminate 60% of the combined child support and add-ons, that the court is requiring both parties to maintain life insurance, instead of just the non-custodial parent. The subject children shall be named as beneficiaries of the policies and the surviving spouse shall be named as trustee. The surviving spouse shall have the fiduciary obligation to administer the life insurance proceeds exclusively for the benefit of the subject children. Both parties shall, upon written demand, provide annual proof of the existence of the policy, the designation of beneficiary and trustee, and the amount of the death benefit. Any shortfall in coverage shall be a first lien against the estate of that party. Once John is 21, neither party shall be required to continue the insurance coverage.

E. College Expenses. The parties shall be responsible for the reasonable college expenses of the children in proportion to their respective incomes with the qualification that, unless [*50]mutually otherwise agreed, such expenses shall not exceed the cost of attendance at a New York State (SUNY) university. The funds in the children's 529 College Savings Accounts shall remain invested in these accounts until the children go to college. After the funds in each child's 529 account is exhausted, both parties shall be responsible for their proportionate share of the cost of tuition, room and board until that child turns 21 or is earlier emancipated or until the child graduates, if both parties so agree. The parties shall also be responsible for their proportionate share of books and supplies, and other school fees. The parties shall also pay their proportionate share of college application fees, fees for the SAT and other pre-college standardized tests, and preparation costs for those tests. Defendant shall be entitled to a "Rohrs" credit for the room and board expenses paid by him for each child residing away from home while attending college. Rohrs v Rohrs, 297 AD2d 317 [ 2nd Dept 2002] [error not to reduce basic child support obligation by amount contributed to pay for room and board expenses while the child is away at college]; Levy v Levy, 52 AD3d 717 [2nd Dept 2008].

Plaintiff's counsel is directed to settle a Judgment, along with Findings of Fact and Conclusions of Law, on notice, which are consistent with this decision, within 60 days. EACH PARTY HAS A RIGHT TO SEEK A MODIFICATION OF THE CHILD SUPPORT ORDER UPON A SHOWING OF: (1) A SUBSTANTIAL CHANGE IN CIRCUMSTANCES; OR (II) THAT THREE YEARS HAVE PASSED SINCE THE ORDER WAS ENTERED, LAST MODIFIED OR ADJUSTED; OR (III) THERE HAS BEEN A CHANGE IN EITHER PARTY'S GROSS INCOME BY FIFTEEN PERCENT OR MORE SINCE THE ORDER WAS ENTERED, LAST MODIFIED, OR ADJUSTED; HOWEVER, IF THE PARTIES HAVE SPECIFICALLY OPTED OUT OF SUBPARAGRAPH (II) OR (III) OF THIS PARAGRAPH IN A VALIDLY EXECUTED AGREEMENT OR STIPULATION, THEN THAT BASIS TO SEEK MODIFICATION DOES NOT APPLY.

Dated: Brooklyn, New York

August 12, 2013E N T E R :

Hon. Debra Silber, A.J.S.C. Footnotes

Footnote 1:Not their real names.

Footnote 2:This is his position as articulated at trial and is somewhat at variance with his written Statement of Proposed Disposition.

Footnote 3:The 2013 hiatus started in April, and she testified in May.

Footnote 4:Calculated with mapquest.com or a similar website.

Footnote 5:Citibank #3139 account statement for 5/98 had a balance of $145,970. Annexed thereto (plaintiff's #30) is the notice of transfer from Jenner & Block.

Footnote 6:At the Preliminary Conference the parties apparently informed the court that they had arranged for all necessary appraisals without the court's assistance. They had in fact received the real estate appraisal and the preliminary business valuation appraisal by that date. Defendant had different counsel by the time of the trial, and she would not stipulate these appraisals into evidence without a live witness to authenticate them.

Footnote 7:Their total bill, including mortgage recording taxes and title insurance, was $18,373. The closing adjustments were $827, and the other fees, such as to the mortgage broker, totaled $2,717.

Footnote 8:Defendant's Exhibit #T is the gift letters provided to the parties' mortgage broker and presumably requested by the bank, which seem to indicate one gift of $40,000 on 2/19/02 and one of $20,000 on 3/29/02.

Footnote 9:She obtained a mortgage commitment in her own name alone from Ridgewood Savings Bank, to satisfy herself and the court that this option was viable, in the principal sum $1.5 million. Plaintiff's #39 in evidence. The monthly payments are indicated to be $3,420.38 at 3.625% for 30 years, considerably less than the monthly payment is on the parties' current mortgage, which is at a higher interest rate.

Footnote 10:This is the date she will assume payment of the mortgage(s) on the property as is provided herein.

Footnote 11:There was testimony that these loans in large part paid for fertility treatments, in particular, IVF.