A.G. v S.G.

[*1] A.G. v S.G. 2016 NY Slip Op 51294(U) Decided on September 15, 2016 Supreme Court, Putnam County Marx, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 15, 2016
Supreme Court, Putnam County

A.G., Plaintiff,

against

S.G., Defendant.



xxxxx



Dina S. Kaplan, Esq.

Bender & Kaplan, PC.

Attorney for Plaintiff

One North Lexington Avenue

White Plains, NY 10601

Daniel B. Schwartz, Esq.

Kantrowitz, Goldhamer & Graifman, PC

Attorneys for Defendant

747 Chestnut Ridge Road, Suite 200

Chestnut Ridge, NY 10977
Paul I. Marx, J.

NOTICE OF RIGHT TO SEEK MODIFICATION OF CHILD SUPPORT ORDER

This decision contains a child support order. The parties are advised that pursuant to the Low Income Support Obligations and Improvement Act of the Laws of 2010, contained in the New York Domestic Relations Law §§ 236(B)(7)(d) and 236(B)(9)(b)(2), unless the parties have specifically opted out of subparagraph (2) or (3) below in a validly executed agreement or stipulation, either party has the right to seek a modification of this child support order upon a showing of:

1. a substantial change of circumstances; or

2. that three years have passed since the order was entered, last modified, or adjusted; or

3. there has been a change in either party's gross income by 15% or more since the order was entered, last modified, or adjusted, provided that any reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience.

The parties are further advised that, pursuant to Domestic Relations Law §236 (B)(9)(b)(2), child support arrears that have accrued prior to the date of application to annul or modify any prior order or judgment as to child support may not be reduced or annulled.

INTRODUCTION

This matrimonial action is before the Court for termination of the parties' marriage, equitable distribution of claimed marital property and determination of spousal maintenance and child support. The principal issues to be resolved by the Court are: (a) spousal maintenance sought by defendant, (b) child support, (c) division of, or award concerning, the former marital residence, (d) debts, including counsel fees, and (e) retirement accounts.

The matter was tried to this Court on July 6 and 7, 2016. Plaintiff was represented by Bender & Kaplan, P.C. (Dina S. Kaplan, Esq., of counsel). Defendant was represented by Kantrowitz, Goldhamer & Graifman, P.C. (Daniel B. Schwartz, Esq., of counsel).

The parties, and defendant's brother, S. G., were the only witnesses to testify at trial. After considering the testimony of the witnesses, the documents admitted into evidence, the parties' statements of proposed disposition, the parties' Net Worth Statements, the prior proceedings had herein and the parties' post trial memoranda submitted on July 22, 2016, the Court makes the following findings of facts, deemed established by the evidence, and conclusions of law:[FN1]

FACTUAL BACKGROUND

The parties were married on May 12, 2006 in Florida.[FN2] There are two children of the marriage: H. G., born XXXXXX, 2006 and J. G., born XXXXXX, 2010. The parties and their children reside together in the former marital residence in Carmel, NY. All issues concerning custody and access to the parties' children were resolved on July 5, 2016 in a written stipulation executed by the parties.

Plaintiff, now 37 years old, immigrated to the United States in 2002 from Netherlands where she was gainfully employed. At the time of the marriage she had a degree in Translation Studies and Linguistics. She is currently employed by, and a part owner of, a start-up company "C", Inc. ("C"), an internet based charity fund raiser which she formed with two others after this divorce action was commenced. She presently owns 29.35% of the stock in C. She and one of the other founders bought out the third founder, guaranteeing $225,000 to him.

Prior to forming C, plaintiff worked at ——————— for approximately 7 ½ years, initially as a writer and later as an editorial manager. While employed at ——————, her highest salary was approximately $103,000 per year. The parties' joint tax return for 2015 revealed income of $108,653. Although her initial salary with C was $120,000 per year, as of July 2015, plaintiff's salary was reduced to $100,000 because, she testified, the start-up could not carry the expense of the higher salary for plaintiff and her co-founders while it attempted to become profitable.

Defendant is a 65 year old retiree who has not worked outside of the home in many years, having effectively stopped working when H. was about 3 months old. He has a Bachelor of Fine Arts degree from the School of Visual Arts, obtained in 1973. When the parties married, he had been self employed as a consultant for approximately 12 years. Primarily, his business involved setting up retail shops in hotels. He contends, alternately, that he gave up his career to stay at home with the parties' children because (a) his earnings capacity had ended or (b) the parties agreed that he would forgo his career to do so.[FN3]

Defendant receives $18,700 per year in Social Security benefits. Exhibit F. In addition, he is covered by Medicare at a cost of approximately $50-100 per month. The children each receive $12,360 per year in Social Security benefits payable to defendant. Exhibit G. In addition to his Social Security income, defendant also has an annuity from which he stood to receive $645 per [*2]month of taxable income ($600 after tax) from ——-.[FN4] Plaintiff contends that she asked defendant to return to work when J. began attending school, but he declined.

Plaintiff commenced the instant action by summons with notice filed on March 20, 2015.

Key to the dispute between the parties, and unquestionably the primary reason this matter proceeded to trial, is how, if at all, the Social Security benefits which are paid to defendant for the children are to be treated with respect to maintenance and child support. Relying principally on Bast v Rosoff, 91 NY2d 723 [1998], plaintiff argues that because the parties share custody of the children, there should also be a sharing of the children's Social Security benefits or a credit to her against the amounts of child support she is ordered to pay. Defendant argues that under Graby v Graby, 87 NY2d 605 [1996], the Social Security income of the children is not includable as income to him, nor may it be used to provide a credit to plaintiff against her support obligation.

To a large extent, the trial of this action was forced by defendant's refusal to consider what the Court viewed to be a reasonable adjustment of the plaintiff's child support obligations in light of the receipt by defendant of the children's Social Security benefits monies given the couple's limited assets and income. That refusal has been considered in connection with defendant's request for counsel fees.

In addition, the parties disagree over whether defendant is entitled to spousal maintenance and the equitable distribution of the marital estate, principally whether either has a valid separate property claim to the former marital residence for monies borrowed to acquire the property.

The determinations made herein are to be incorporated but not merged into the Judgment of Divorce, which plaintiff's counsel is directed to submit, along with Findings of Fact and all other requisite papers, no later than 30 days after the date of this Decision After Trial.

The terms and conditions of the Parenting Plan to which the parties agreed are hereby adopted and approved by the Court. These, too, shall be made part of the submitted documents.

DIVORCE GROUNDS

The parties agreed to divorce on the grounds of irretrievable breakdown of the relationship for a period in excess of six months under Domestic Relations Law ("DRL") §170(7) and the Court conducted an inquest on grounds during the trial. Accordingly, the Court grants the plaintiff a divorce on those grounds. Plaintiff is also granted the right to resume the use of her maiden name if she desires.

MAINTENANCE

In determining the appropriate amount and duration of maintenance, the Court is required to consider the following factors as enumerated in DRL Section 236B(6)(a):

1. The income and property of the respective parties including marital property distributed pursuant to subdivision five of this part;

2. The length of the marriage;

3. The age and health of both parties;

4. The present and future earning capacity of both parties;

5. The need of one party to incur education or training expenses;

6. The existence and duration of a pre-marital joint household or a pre-divorce separate household;

7. Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;

8. The ability of the party seeking maintenance to become self-supporting and, if [*3]applicable, the period of time and training necessary therefor;

9. Reduced or lost lifetime earning capacity of the party seeking maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage;

10. The presence of children of the marriage in the respective homes of the parties;

11. The care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity;

12. The inability of one party to obtain meaningful employment due to age or absence from the workforce;

13. The need to pay for exceptional additional expenses for the child/children, including but not limited to, schooling, day care and medical treatment;

14. The tax consequences to each party;

15. The equitable distribution of marital property;

16. Contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;

17. The wasteful dissipation of marital property by either spouse;

18. The transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

19. The loss of health insurance benefits upon dissolution of the marriage, and the availability and cost of medical insurance for the parties; and

20. Any other factor which the court shall expressly find to be just and proper.

"The amount and duration of maintenance is a matter committed to the sound discretion of the trial court, and every case must be determined on its own unique facts. The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self supporting." Kilkenny v Kilkenny, 54 AD3d 816, 820[2nd Dept. 2006]. "In fixing the amount of a maintenance award, a court must consider the financial circumstances of both parties, including their reasonable needs and means, the payor spouse's present and anticipated income, the benefitting spouse's present and future earning capacity, and both parties' standards of living." Morrissey v Morrissey, 259 AD2d 472, 473 [2nd Dept 1999]. The main purpose of a maintenance award is to give the non monied spouse economic independence. Giokas v Giokas, 73 AD3d 688 [2nd Dept 2010].

An important factor to be considered in awarding maintenance is the distribution of marital property. Wortman v Wortman, 11 AD3d 604 [2nd Dept 2004]. Other factors to be considered in awarding maintenance are any "contributions and services of the party seeking maintenance as a spouse, parent, wage earner and home maker, and to the career or career potential of the other party." DRL § 236(B)(6)(a)(8). Of course, due consideration must be given to whether maintenance will permit the reliant spouse to maintain some level of pre-divorce living standard. "A durational period of maintenance is not favored in those circumstances where economic independence at a level roughly commensurate with the marital standard of living is not a realistic goal." Sass, supra at 49 (citing Summer v Summer, 85 NY2d 1014 [1995]).

Defendant cites to, but then rejects, the recently enacted, but inapplicable, DRL§ 236-B(6)(f)(1) to support his claim for maintenance. The statute recommends, for cases commenced after January 23, 2016, that maintenance should be provided for a period of time that equals 30% of the length of the marriage, here, 2 years 8 months based on a nearly 9 year marriage. Rather, defendant seeks non durational maintenance from plaintiff in an amount ranging between $1,013 to $1,072 per month based on calculations he submitted using a range of income for plaintiff between $100,000 and $120,000 per year (based on her past performance) and $25,700 as his own income, comprised solely of his Social Security benefits and his pre-marital pension. Defendant's Post Trial Memorandum of Law p 9.

Defendant has not included any possible income from employment, asserting that after [*4]having spent nearly 10 years out of the workforce with the parties' children, he is no longer employable, while he expects plaintiff's income to increase.[FN5] He argues that his age, 65, operates to disqualify him from gaining employment while plaintiff, at age 37, is in her peak earnings years. Id.

Plaintiff contends that defendant is not entitled to spousal maintenance because he is able bodied and capable of work but has done little to attain employment, even while this action has been pending. He is described by her as having refused to seek work not only during the marriage but during the pendency of this action as well and having made inadequate efforts to obtain employment. Plaintiff's Post Trial Memorandum of Law and Brief p.2, 9.

Without considering the children's Social Security benefits which are paid to and received

by defendant, plaintiff argues that the parties' incomes (when adjusted for the tax free nature of defendant's Social Security payments, his pension income and including $30,000 per year of imputed income) are nearly equal even though plaintiff "toils away" and defendant remains at home. Plaintiff argues that "support is not supposed to be a windfall for one party while the other slaves away in commerce on a daily basis." Id. p.8.

Plaintiff testified that in addition to commutation costs to ————— , NY for her job (estimated at $529/month including her car payment), she pays for her own health and dental insurance at a monthly cost of $689. Plaintiff also pays $340 per month for health insurance for the parties' children.[FN6] She states that defendant has paid very little for the children's expenses, contributing approximately $1,000 towards their camp expense in 2016 and a lesser amount in 2015. In addition, defendant paid a small amount towards after school activities and clothing.

Plaintiff testified that she had a few thousand dollars at the time the parties married and no debt, while defendant had no assets, had declared bankruptcy at or around that time and owed significant taxes. Defendant's tax indebtedness exceeded $100,000 at the time of trial.

Defendant's income is comprised of his Social Security benefits of $18,700 [FN7] and his pension of $7,740. Notably, the Social Security income is non taxable, thereby giving defendant the equivalent of a higher income. The Court disagrees with plaintiff's suggestion that $30,000 per year should be imputed to defendant. Rather, the Court imputes $22,500 per year to him. For calculation purposes, the Court will assume that the Social Security income of $18,700 is the equivalent of $22,500 of taxable income.[FN8] Thus, defendant's total income is $52,740, a significant portion of which is exempt from taxation.

In setting the amount of maintenance, the Court has considered all of the factors required by statute, in particular, the parties' respective earnings capacities, past earnings history and needs. In addition, the Court has considered the potentiality that C may not succeed, in which case plaintiff will find herself searching for employment. The Court has also considered that the [*5]effort defendant has expended in his purported job search has been lackluster, at best.

Under all of the circumstances present in this case, the Court awards defendant spousal support in the amount of $850 monthly for a period of 24 months commencing the first day of the eleventh full month after entry of Judgment. The amount that has been fixed and the inception date for payments to defendant takes into consideration the award to defendant of plaintiff's 403(B) account in its entirety as set forth below. Essentially, the Court is providing an eleven month holiday to plaintiff during which she will not pay spousal support directly to defendant, who will, nevertheless, receive an amount equal to the amount of spousal support through the 403(B).[FN9] Said payments are to be made on the first day of each month for the ensuing month. The award of maintenance in this amount shall continue until the earlier of the expiration of the 24 month period following the eleven month period, either party's death, or the defendant's remarriage or habitual co-habitation with another individual in a committed relationship (i.e., opposite or same sex marriage, or living in a romantic based relationship with another) or any of the other factors set forth in DRL § 248. Maintenance shall be taxable to defendant and tax deductible by plaintiff, as allowed by Federal and State law.

CHILD SUPPORT

The Child Support Standards Act, Child Support, Add Ons and Health Insurance

The Child Support Standards Act ("the CSSA") codified in section 240 of the Domestic Relations Law [FN10] ("DRL") provides that the Court shall calculate the "basic child support obligation" and the non-custodial parent's pro rata share of the basic child support obligation. Unless the Court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, after considering ten enumerated factors, it must order the noncustodial parent to pay his or her pro rata share of the basic child support obligation. DRL § 240[1-b](f). The amount of child support derived from the implementation of the CSSA formula is presumptively correct.

DRL § 240[1-b][f] provides:

The court shall calculate the basic child support obligation, and the non-custodial parent's pro rata share of the basic child support obligation. Unless the court finds that the non-custodial parent's pro-rata share of the basic child support obligation is unjust or inappropriate, which finding shall be based upon consideration of the following factors: (1) The financial resources of the custodial and non-custodial parent, and those of the child;(2) The physical and emotional health of the child and his/her special needs and aptitudes;(3) The standard of living the child would have enjoyed had the marriage or household not been dissolved;(4) The tax consequences to the parties;(5) The non-monetary contributions that the parents will make toward the care and well-being of the child;(6) The educational needs of either parent;(7) A determination that the gross income of one parent is substantially less than the other parent's gross income;(8)The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources [*6]available to support the children who are subject to the instant action;(9) Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent's expenses are substantially reduced as a result thereof; and(10) Any other factors the court determines are relevant in each case, the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation, and may order the non-custodial parent to pay an amount pursuant to paragraph (e) of this subdivision.

Under the CSSA, the amount of child support owed to the custodial parent is predicated on the non custodial parent's income multiplied by a set percentage determined by the number of children for whom support is warranted. Where there are two children residing in the same household with the same custodial parent, the applicable percentage of each parties' income under the CSSA is 25%. DRL § 240(1-b)(b)(3)(ii).

"Income" is defined as "gross income as was or should have been reported on the most recent federal income tax return". DRL § 240(1-b)(b)(5)(I). Under the CSSA, there are required deductions from gross income for Social Security and New York City and Yonkers income taxes.

Plaintiff submits that the parties' shared custody arrangement must be taken into consideration in determining the amount of child support she is directed to pay to defendant. She also urges that the Court should take into consideration the fact that defendant receives the Social Security benefits for the children. After performing the calculations necessary by the CSSA, she concludes that the basic child support is $1,875 per month. Laying claim to one half of the children's Social Security benefits because of the shared custody arrangement she suggests paying $845 per month to defendant.

Defendant opposes plaintiff's request to factor their shared custody arrangement into determining the amount of child support. Citing Ryan v Ryan, 110 AD3d 1176 [3rd Dept 2013], he incorrectly states that "a shared custody arrangement is not grounds to determine the presumptively correct child support is unjust or inappropriate." Defendant's Post Trial Memorandum of Law p13.

Defendant also resists any suggestion that the children's Social Security benefits should be considered in determining plaintiff's obligation. Rather, he contends that case law prohibits consideration of the children's income as a credit [FN11] against plaintiff's support obligations.

While each party argues the uniqueness of the current situation, each asserting that the other is either entitled to, or not entitled to, a credit or consideration of the Social Security benefits paid to defendant for the parties' children, the Court of Appeals has already answered the question of how such income should be considered for child support purposes in shared custody cases. Divining the high Court's imprimatur for addressing such circumstances requires this Court to meld two of its decisions, Bast v Rosoff, 91 NY2d 723 [1998] and Graby v Graby, 87 NY2d 605 [1996].

The CSSA does not work well in joint physical custody cases where custody is shared equally. Nonetheless, while acknowledging this in Bast, the Court of Appeals reiterated that the CSSA is applicable to shared custody cases. The Court stated that "the more difficult issue we must resolve is how the CSSA should be applied in cases of shared custody, which, in New York encompass a number of situations including joint decision making, joint legal custody or shared physical custody of the child." at 726 (emphasis in original). The high Court explicitly rejected a proportionate offset approach, setting forth the procedure for determining the correct amount of child support to be paid.

As here, the parties in Bast agreed to shared custody of their child but were unable to [*7]agree on the amount of child support. Although the trial court held the CSSA to be applicable to shared custody cases, it disregarded the required mathematical calculations set forth in the CSSA and skipped to the "other factors" set forth in subparagraph (f) to determine the amount of child support payable. In doing so, the court stated that "where there is extensive time sharing the court must look at the totality of the circumstances in both homes rather than rely on the [CSSA] percentages." Bast v Rosoff , 167 Misc 2d 749, 757 [Sup Ct, New York County 1995]). The trial court continued, "while the CSSA applies' to shared custody ... the basic support percentages should not be used in any shared custody case." Id. Consequently, the trial court eschewed the CSSA methodology prescribed by the legislature and substituted its own analysis predicated on subparagraph (f).

The Appellate Division affirmed, holding that "the parties unique shared custody arrangement ... warranted the IAS Court's resort to the paragraph (f) factors for calculating child support under the [CSSA] ... in preference to the percentage formula of paragraph (c)". Id. (quoting Bast v Rossoff , 239 AD2d 106 [1st Dept 1997]). The Court of Appeals granted leave to appeal and subsequently modified the Appellate Division.

The Court of Appeals agreed with the lower courts that the CSSA applied to shared custody arrangements. That issue is not contested by the parties in this case. However, the high Court rejected the approach employed by the trial court and approved by the Appellate Division, which substituted the CSSA's mathematical formula with an evaluation of the parties' circumstances. The Court of Appeals held that the trial court must first apply the "precisely articulated, three-step method" proscribed by the statute for determining the basic child support obligation, which it must order to be paid unless it "finds that amount to be unjust or inappropriate' based on a consideration of the paragraph (f)' factors (Domestic Relations Law § 240[1-b][f]." Bast 91 NY2d at 727.

"If the trial court is satisfied that the amount of basic child support obligation is unjust or inappropriate' because of the shared custody arrangement of the parents, the court may then utilize paragraph (f)' to fashion an appropriate award." Id. at 732. "Those factors include the financial resources of the parents and the child, the standard of living the child would have had if the marriage had not ended, non monetary contributions of the parents towards the child, extraordinary expenses incurred in exercising visitation and any other factors the court determines are relevant. (Domestic Relations Law § 240[1-b][f]." Id. (Emphasis added).]

Bast, therefore, dictates that the Court must first apply the CSSA formula and then determine whether the resulting amount is unjust or inappropriate. Only then can the Court consider the shared custody arrangement and Social Security income of the children in connection with determining if the presumptive amount derived from the CSSA is unjust or inappropriate. An additional proviso is applicable in this case. The Social Security income may be considered but cannot supplant completely the payor parent's obligations.

Prior to Bast, the Court of Appeals in Graby v Graby, 87 NY2d 605 [1996], had occasion to consider whether a payor non custodial parent is entitled to "credit" against the amount he/she must pay where the children receive Social Security benefits. Rejecting a strict "credit" approach to such benefits, the Court declined to include the amount of the benefits in the non custodial parent's income for child support purposes. The non custodial father sought to modify his child support obligation based on his alleged total disability. The custodial mother cross moved for an upward modification of the child support based on the father's receipt of Social Security benefits, including benefits for the children, and his pension. The Hearing Examiner in Family Court denied the father's application and granted the mother's cross petition, simultaneously awarding a credit against the father's obligations based on the Social Security benefits received by the children.[FN12] Family Court vacated the Hearing Examiner's Order and remitted the matter back to [*8]the Hearing Examiner for reconsideration, holding that the disability payments to the children could only be credited against a child support obligation that was found to be "unjust or inappropriate". The Appellate Division Fourth Department, modified, holding that the Social Security payments made to the children should be included in the father's income and then credited against the parent's support obligation.[FN13]

When Graby came before the Court of Appeals, the father urged that the benefits should be treated as income and then credited against his support obligation because they were derived from his prior employment. The mother argued that the payments should only be considered in determining whether the basic support obligation should be adjusted because it was "unjust or inappropriate." The high Court found the mother's argument more persuasive and consistent with the purpose of the CSSA. After recounting the statutory framework and rationale, the Court noted that the financial resources of the children are not among the eight factors used to determine a parent's income under Family Court Act § 413[1][b][5], but are within the factors to be considered for determining whether the presumptive award is unjust or inappropriate under FCA § 413 [1][f]. The Court then held that Social Security benefits for the children which derive from a non custodial parent's award of benefits are not to be considered as additional income to the non custodial parent for calculation purposes, but rather, may be considered in assessing the appropriateness of the presumptive amount.

The Court specifically rejected granting a credit to a non custodial parent for Social Security benefits, holding

"[a] credit for such Social Security payments also interferes with the goal of protecting children as much as possible from the overall decline in living standards that results from parents maintaining two households." Graby, at 612 (quoting Bill Jacket, L 1989, ch 567, Governor's Program Bill Mem, reprinted in 1989 McKinneys' Session Laws of NY, at 2208).

Numerous other cases have rejected the idea of providing a credit to a parent for Social Security payments against child support obligations. See, e.g. Matter of Dorosky v Herald, 52 AD3d 829 [2nd Dept 2008] ("dependent child's Social Security benefits are ... not intended to displace the obligation" (quoting Graby)), Matter of Wrighton v Wrighton, 23 AD3d 669, 670 [2nd Dept 2005] ("nor is there any merit to the father's argument that his son's derivative Social Security benefits may serve as a credit against his child support obligation"), Matter of Commissioner v Luis Alonso G., 7 AD3d 388 [1st Dept 2004] ("child's derivative Social Security benefits may not serve as a credit' against a noncustodial parent's support obligation" (quoting Graby)), Matter of Pinto v Putnam County Support Collection Unit, 295 AD2d 350, 352 ("Although a dependent child's Social Security benefits are derived from the disabled parent's past employment, they are designed to supplement existing resources, and are not intended to displace the obligation of the parent to support his or her children" (quoting Graby)).

The holdings of the decisions of the state's highest Court must be melded together to yield the conclusion for shared custody cases. Under Bast, the trial court must first employ the statutory methodology to calculate the amount to be paid under the CSSA in determining the proper amount of child support to be paid. The Court can then consider the shared custody arrangement provided that it does not provide a "proportional reduction" predicated on the amount of time each parent spends with the children. Further, under Graby, the court may not include the child's benefits as income to the recipient parent, nor may the trial court "credit" those amounts against the payor parent's obligation. Rather, Social Security benefits for the children represent income of the children which, despite their young ages, can be considered [*9]under the statute to determine the award if the presumptive amount is "unjust or inappropriate". If that is the case, the Court can rely on subparagraph (f) to fashion an appropriate and equitable amount.

In what appears to be a case of first impression, then, this Court will consider the fact that defendant receives Social Security payments intended to benefit the children as a factor in determining the proper amount of child support to be awarded. Clearly, it would be inequitable to ignore the reality that defendant receives monies intended to provide necessaries for the children from another source. Therefore, this will only be considered after the Court calculates the presumptive amount to be awarded using the process set out by the CSSA.

The CSSA presents a further complication in joint physical custody cases because the statute requires identifying a custodial and non custodial parent. The non custodial parent is the payor and the custodial parent is the payee, or recipient of the child support award. In this case, plaintiff has identified herself as the non custodial parent. That identification is consistent with the law.

When applying the CSSA to joint physical custody cases, the moneyed parent becomes the de jure non custodial parent. See Barr v Cannata, 57 AD3d 813 [2nd Dept 2008] (awarding pendente lite child support) (citing Bast, supra; Powers v Powers, 37 AD3d 316 [1st Dept 2007]; Carpenter—Siracusa v Siracusa, 34 AD3d 611 [2nd Dept 2006]; Matter of Moore v Shapiro, 30 AD3d 1054 [4th Dept 2006]); see also Baraby v Baraby, 250 AD2d 201, 204 [3rd Dept 1998].

In Barr, the Appellate Division held that since the "the [temporary] custodial arrangement agreed to by the parties essentially split physical custody of the children on an equal basis ... the parent with the higher income, who bears the greater share of the child support obligation ... should be deemed the noncustodial parent for the purpose of support." Barr, supra. at 814 (citations omitted).

In Baraby, supra, the parties shared physical custody of their two sons equally by alternating weeks. The parties settled all aspects of their divorce action, except child support, which was tried in Supreme Court. After applying the CSSA to determine the amount each parent owed to the other as if the other had full custody, the trial court used a "proportional offset" whereby the amount owed was reduced by the time spent with each parent (i.e., divided in half in recognition of the equal time each had custody) and "netted out" the amount owed by the higher earning parent. Relying on Bast, the Appellate Division modified the trial court's determination, rejecting the proportional offset, holding that "it is now well settled that [s]hared custody arrangements do not alter the scope of the CSSA.'" (quoting Bast, supra at 732). Rather, the Court held that:

"we interpret Bast as requiring application of the CSSA to such situations to assure that children will realize the maximum benefit of their parents' resources and continue, as near as possible, their preseparation standard of living in each household. In order to effectuate this goal, where, as here, the parents' custodial arrangement splits the children's physical custody so that neither can be said to have physical custody of the children for a majority of the time, the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the noncustodial' parent for the purpose of support regardless of the labels employed by the parties (cf., Bast v Rossoff, supra, at 728). That parent must be directed to pay his or her pro rata share of the child support obligation to the other parent unless the statutory formula yields a result that is unjust or inappropriate.' (Bast v Rossoff, supra, at 729). In that event, the trial court can resort to the 'paragraph (f)' factors and order payment of an amount that is just and appropriate' (Bast v Rossoff, supra, at 729). Baraby at p. 204.

Thus, the law is clear that in shared custody cases the spouse with the larger share of the pro rata support obligation is deemed to be the non custodial spouse for calculations under the CSSA. Put more simply, the spouse with the greater CSSA earnings is deemed the non custodial spouse in shared custody cases. This is designed to ensure that the children's lifestyle is affected [*10]by their parents' divorce as little as possible.

"While the statute requires that the parents' incomes be combined, the percentage applied, and the result apportioned between the parents in proportion to their income (with noncustodial parent to make payment of his or her share to the custodial parent), the end result is almost always the same, or virtually the same, as if the noncustodial parent's child support payment had been determined by simply applying the statutory percentage to the noncustodial parent's income. In essence, whether the custodial parent has income or not has little or no bearing on the amount of basic child support the noncustodial parent is to pay. See Matter of Andre v Brumaire, 299 AD2d 355 [2nd Dept 2002]." Scheinkman, New York Law of Domestic Relations, § 16:29 at 1047 [11 West's NY Prac Series 2009]. Given that the Court is imputing income to defendant, including the imputed income to perform a calculation that would yield the same amount owed by plaintiff is superfluous. The Court will not add the parties' incomes only to divide them again in the mathematical catechism. Thus, the Court will calculate child support based upon plaintiff's income.

Plaintiff's income, as last reported on her federal income tax filings, was $108,653. This is the income used for determining child support under the CSSA. Reducing that amount by the permitted deductions for Medicare and Social Security, yields a net income for child support purposes of $100,341.[FN14] The Court must also deduct the amount of spousal maintenance awarded to plaintiff. Deducting the maintenance payments of $10,200 annually ($850 per month x 12 months)[FN15] from $100,341 yields a final net income for plaintiff for child support calculation purposes of $90,141. Applying the CSSA percentage of income for two children, the Court multiplies Plaintiff's net income of $90,141 by 25%. That calculation yields the sum of $22,535 annually or $1,877 per month of child support.

From that amount, the Court will make a further deduction relating to plaintiff's payment of health insurance benefits which plaintiff testified, without contradiction, that she pays to provide health insurance coverage to the children at a monthly cost of $340. She is hereby directed to continue to pay for the children's health insurance premiums. Consequently, the Court reduces the presumptive amount of child support by defendant's pro rata share of that cost, as permitted by law.

Where the non-custodial parent is ordered to provide health insurance benefits, as in this case, "the custodial parent's pro rata share of such costs shall be deducted from the basic support obligation." Scheinkman, New York Law of Domestic Relations, § 16:39 at 1087 [11 West's NY Prac Series 2009] (citing DRL § 240[1-b][c][5][ii]). The pro rata share is determined by the proportion of each parent's income to the combined parental income. DRL § 240(1-b)(c). Under existing case law, maintenance is deducted from the payor spouse's income before calculating the percentages, but is not added to the payee spouse's income. Therefore, defendant's pro rata share is 24.9% and Plaintiff's pro rata share is 75.1%. Plaintiff's income of $100,341 is reduced by $10,200 awarded in maintenance, yielding $90,141. Defendant's income, exclusive of maintenance, is $30,240. The parties' total income, net of maintenance, but including the income imputed to plaintiff, is $121,381. $30,240 divided by $121,381=24.9%. Accordingly, plaintiff is entitled to a monthly deduction for health care premiums paid by her for the children of $84.66. [*11]($340 per month times 24.9%).[FN16]

The presumptive amount of child support calculated under the CSSA, payable by plaintiff to defendant, net of all deductions, is $1,792.34 per month. The Court finds the presumptive amount of child support derived from application of the Child Support Standards Act to be unjust and inappropriate under the circumstances of this case. Thus, as permitted by case law and the CSSA, this Court orders a deviation from the presumptive amount to the amount set forth below for the following reasons.

First, the parties have a shared custodial arrangement whereby each enjoys equal time with the children. Necessarily, each must provide food, shelter and necessaries for the children when they are in that parent's custody. It would be manifestly unfair for plaintiff to, simultaneously, pay 100% of presumptive child support which is intended to help the custodial parent pay for these items and then have to provide food, shelter and necessaries to the children 50% of the time. Under Bast, then, plaintiff is entitled to a reduction in the presumptive amount of child support to be paid to defendant provided that the reduction is not based on a strict "proportionality" test.

Second, awarding defendant the full measure of statutory child support would ignore the provisions of DRL 240[1-b][f] allows, as Graby reminds us, consideration of the financial resources of the children. Significantly, here, the amount of the children's income exceeds the presumptive amount of child support. The reality here is that any order which directs plaintiff to pay defendant the presumptive amount of child support when defendant receives 100% of the Social Security income of the children and plaintiff receives none would be unreasonable and inequitable.

Finally, as noted, plaintiff will continue to bear the greater portion of the cost of health insurance for the children.

Since the Social Security benefits which defendant receives for the parties' children belong to the children, perforce, it should follow the children. Reducing the child support to be paid by plaintiff to defendant in recognition of the fact that defendant receives in excess of $2,000 per month in direct support for the children from Social Security serves to balance the equities of the parties' financial realities while ensuring that the children's Social Security benefits are actually used for the purposes intended. To do otherwise would provide defendant a windfall at plaintiff's and the children's expense. In addition, such a reduction takes into consideration the fact that while the law proscribes a credit for such payments, the law does not require the Court to don blinders and pretend that the recipient of Social Security benefits for the children does not actually receive and benefit from that money, both directly and indirectly. In other words, while the law prohibits a credit against child support, it does not expect a court to ignore the reality that a parent receives money intended to benefit a child when considering whether a child's needs are being met.

Hence, the Court determines the proper amount of child support to be paid by plaintiff to defendant is $300 per month. This amount takes into consideration the disparate earnings and earnings capacities of the parties, their shared custody arrangement and the children's income from their Social Security benefits as permitted under the CSSA and case law. This amount also ensures that the financial resources available in both households is comparable so that the children are not subjected to a rich house/poor house dichotomy when they transition from one parent's home to the other's. To be sure, the reduction in plaintiff's obligation is not a credit. Nor has the Court reduced the child support based on a proportionality approach. Rather, the reduction and amount awarded take into consideration all of the financial circumstances of the parties to reach a just result.

The parties shall share the costs of any necessary un-reimbursed medical expenses and statutory add-ons for the children according to their pro rata shares of 75.1% by plaintiff and 24.9% by defendant.

College Expenses

The parties did not address college expenses for their children. Even if they had, the Court declines to grant any such relief as premature. See Lewis v Lewis, 118 AD2d 958 [2nd Dept 2013].

There was no testimony from either party concerning any aptitude or desire of the parties' children to attend college or that they have voiced an interest or intention to do so. If, as and when the children do so, each party is free to seek contribution for college expenses from the other in a court of competent jurisdiction.

EQUITABLE DISTRIBUTION

The premise of the equitable distribution law is that "a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner, or homemaker." O'Brien v O'Brien, 66 NY2d 576, 585 [1985]. "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 un-remunerated services to the joint enterprise, such as homemaking, raising children and providing for emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home." Price v Price, 69 NY2d 8, 15 [1986].

Although equitable distribution does not necessarily mean equal distribution, the general rule calls for an equal distribution of the marital assets, unless the equities of an individual case require an unequal distribution . Conner v Conner, 97 AD2d 88, 96 [2nd Dept 1983]. The basic premise of equitable distribution 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." Conner v Conner, supra at 96 (citing 11C Zett-Kaufman-Kraut, N.Y.Civ.Prac., Appendix B, at 8).

When distributing marital property, the trial court is accorded "substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances." Mahoney-Buntzman v Buntzman, 12 NY3d 415, 420 [2009]. Thus, "[t]he trial court is vested with broad discretion in making an equitable distribution of marital property ... and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed." Michaelessi v Michaelessi, 59 AD3d 688, 689 [2nd Dept 2009].

"In determining equitable distribution, the trial court is directed to consider statutory factors, including the income and property of each party at the time of the marriage, and at the time of the commencement of the divorce action, the duration of the marriage, the age and health of the parties, any maintenance award, and the nontitled spouse's direct or indirect contributions to the marriage, including services as a spouse, parent, wage earner and homemaker." Loria v Loria, 46 AD3d 768, 770 [2nd Dept 2007]; DRL § 236(B)(5)(d). Pursuant to DRL Section 236B(5)(d), the Court shall consider the following 14 factors in making an equitable distribution of the marital property:

1) Income and Property;

2) Duration of the marriage and age and health of the parties;

3) Need of custodial parent to occupy or own the marital residence;

4) The loss of inheritance and pension rights;

5) The loss of health insurance;

6) An award of maintenance;

7) Direct and indirect contributions;

8) Liquid or non-liquid character of the property;

9) Future financial circumstances of the parties;

10) The difficulty of valuing marital assets;

11) The tax consequences to each party;

12) The wasteful dissipation of assets;

13) Transfer in contemplation of action; and

14) Any other factors.

Under the law of equitable distribution, there is a presumption that all property acquired by either spouse during the marriage is marital property. DRL § 236(B)(1)(c). Marital property is defined in DRL Section 236(B)(1)(c) as "all property acquired by either or both spouses during the marriage and before execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held."

Separate property is defined as "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse...". DRL § 236(B)(1)(d). Separate property also includes "property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse." DRL § 236(B)(1)(d)(3).

All of the factors listed in the statute have been considered as required by law. Items 3, 4, 5, 8, 10, 11, 12 and 13 are inapplicable. Many of the other factors were not addressed by the parties during trial.

Retirement Accounts/Pension

Plaintiff testified that she has a 403(B) retirement account, accumulated during the marriage, with a balance of $17,751.73 as of March 31, 2016 in it. Exhibit 7. Ordinarily this marital asset would be divided, pursuant to the rule espoused by the Court of Appeals in Majauskas v Majauskas, 61 NY2d 481 [1984]. Generally stated, that rule provides for an equal sharing of the portion of the retirement account accumulated during the marriage. Hence, each party has an approximate interest of $8,875.86 in the account.

However, as noted above, in order to provide plaintiff a "holiday" from having to make payments of spousal support directly to defendant, the Court awards, in lieu thereof, the entirety of the account balance, together with any gains or losses thereon as of the date of filing, to defendant. Any contributions after the date of commencement shall remain plaintiff's sole asset.

The parties are directed to employ Robert Guarnera, an actuary, whose office is located at 500 Summit Lake Drive, Valhalla, NY to prepare and submit any required Domestic Relations Order or Qualified Domestic Relations Order to accomplish the transfer of the 403(b) account to defendant. The costs of the actuary shall be shared on an equal basis.

Defendant's pension was earned prior to the marriage. As such, it is separate property which he is entitled to retain, without division.

Former Marital Residence

The parties dispute the source(s) of the down payment on the former marital residence. Each claims separate property interests which, owing to defendant's tax problems and prior bankruptcy, was purchased in 2010 in plaintiff's name alone for $365,000 subject to a 30 year mortgage of $292,000. The mortgage loan used to acquire the property provides for payments of interest only for 10 years, following which (in 2020) it would amortize principal and interest (at market rate). Exhibit H.

Plaintiff contends that the down payment for the home came from three sources: (1) her father loaned her (or invested) $31,826.40 in the home pursuant to an agreement whereby he is to be paid 8.78% of the sales proceeds in the event the house is sold (Exhibit 15), (2) $20,000 inherited by defendant from his mother, and (3) $20,000 borrowed by defendant from his sister. At trial, she testified that although she does not believe there is any equity in the property, she desires that the house be sold and the proceeds divided after her father and defendant's sister are repaid. In her Post Trial Memorandum of Law, plaintiff writes, "If the Court is not inclined to [*12]keep Plaintiff in the marital residence, she asks [that] the home be sold with a directive of repayment to her father and to Defendant's sister after payment of all closing costs and broker's commissions."[FN17] Plaintiff Post Trial Memorandum of Law and Brief p.5. Alternatively, she seeks exclusive use and occupancy.

Defendant contends that he contributed $60,000 to the purchase price of the house, which he asserts should be returned to him if the Court orders it sold. He disputes plaintiff's claim that her father lent the couple $31,826.40 as she claims, pointing to a gift letter which was furnished to the lender in support of the mortgage application.[FN18] Exhibit Q. At trial, he requested exclusive use and occupancy of the property so that the children can stay in the house "for an extended period of time". He testified that he can pay the carrying costs of the home from his Social Security and pension. Alternatively, he asks that plaintiff be awarded exclusive use and occupancy (and all associated expense).

Plaintiff rejects defendant's claim that he contributed an additional $20,000 towards the purchase of the home, noting that he failed to produce proof of it despite advising the Court that he would do so during trial. She notes that defendant has requested to remain in the home even though the mortgage loan is solely in her name and it would be her credit which is jeopardized if he fails to timely pay the carrying costs, currently $2,807 monthly. She voices concern that, given defendant's prior bankruptcy and his tax debts, it is unlikely that defendant will pay the obligations to maintain the home if it is awarded to him.

The Court rejects defendant's testimony that he contributed $60,000 towards the purchase of the house. As plaintiff's counsel points out, the down payment was $73,000 and defendant does not dispute that plaintiff's father advanced nearly $32,000. If one were to add $60,000 to $32,000, one would believe that the down payment was actually $92,000, not $73,000. Defendant did not account for the extra $19,000 he claims to have contributed.

Plaintiff is awarded exclusive use and occupancy of the former marital residence through the end of the school year in which the mortgage resets. This will provide the children with continuity of residence until that time, a factor encouraged by case law while not impairing either parties' right to receive any net equity, since it appears, based on both of their testimony, that there is none. Further, the carrying costs of the home are likely comparable to the cost of a similar rental in this area.[FN19] See, e.g. Porestsky v Poretsky, 176 AD2d 713 [2nd Dept 1991]. Defendant shall vacate the premises within 60 days of the date of this Decision After Trial.

Plaintiff shall be responsible for all carrying charges of the house including mortgage payments, taxes and insurance. Any repairs which may become necessary and which cost in excess of $1,000 shall be shared equally by the parties who shall consult concerning the most cost effective way in which to effectuate the repair. Plaintiff shall advise defendant at least 10 business days in advance of her intention to undertake any work of a non emergent nature and shall provide him with a copy of a written proposal for the work. Defendant shall have 3 days in which to object to the proposed work or to provide a counter proposal for effecting the repair. If the parties cannot agree on how to effect the repair, plaintiff shall decide which method is preferred and her decision as to same shall be conclusive of the issue.

Once the period of exclusive use and occupancy ends, the house shall be listed for sale [*13]with a broker mutually agreeable to the parties, or if they are unable to agree, by a broker selected by the brokers each of them selects. The listing price (and any adjustments thereto) shall be set after consultation with the broker at a price deemed by the broker to be market rate at that time. Upon sale, after satisfaction of the recorded mortgage and all usual and customary costs incident to a sale, the proceeds shall be used to pay plaintiff's father ($31,826.40) and defendant's sister ($20,000). If there is insufficient equity to pay both in full, the net proceeds shall be applied on a pro rata basis to the amount loaned to the couple. In such event, plaintiff shall remain liable to her father for the balance of the loan made by him and defendant shall remain liable to his sister for the balance of the loan made by her. If there is any net equity remaining after payment of all debts, the parties shall share the proceeds equally.

If plaintiff decides that she does not wish to remain in the home until the mortgage resets, it shall be sold when she determines to do so, subject to the same terms set by the Court.

Contents of Former Marital Residence

The parties did not address the contents of the former marital residence. Thus, the Court declines to assign any items within the home to either party, except that items which are personal shall remain that party's: for example, a women's hair dryer shall remain plaintiff's, while a men's shaver shall remain defendant's. Each shall retain their own clothes and jewelry. In addition, all items belonging to the children shall be and remain the children's.

Vehicles

Plaintiff submits that each party should retain the vehicle principally operated by him/her. Thus, plaintiff would retain the 2015 Chevrolet Cruze which she purchased post commencement using loans, including $1,000 borrowed from her father, and defendant would retain the 2005 Jeep Cherokee he currently operates.

Defendant did not make any recommendation for the disposition of the parties' vehicles either at trial or in his post trial submission.

Plaintiff's proposal is hereby adopted by the Court since it is manifestly reasonable. She shall retain the 2015 Chevrolet Cruze, and defendant shall retain the 2005 Jeep Cherokee. Each party shall be solely responsible for any loans or other indebtedness associated with their respective vehicle, as well as all insurance and registration expense attendant to that vehicle. If the vehicles are titled or registered to a party other than the one to whom it has been awarded, the other party shall effectuate the transfer of the vehicle within 20 days of the date hereof.

Debts

Plaintiff testified to various debts she has incurred during the pendency of this action as set forth on her Statement of Net Worth. Exhibit 2. These include: (a) the loan referenced above from her father which was used to assist in acquiring the former marital residence, (b) $11,300 to her mother for household items, (c) $37,000 in additional promissory notes to her father, including $5,000 for the purchase of stock as well as $2,000 for fees paid to the attorney for the children (Arlene Wexler, Esq.), and $10,000 for the initial retainer to her prior attorney, William London Esq.[FN20]

Plaintiff testified that she incurred an additional $70,000 in loans from her father, half of which she used to pay for this litigation, including $10,000 to her current counsel. In addition, she borrowed $7,000 from an investor in C to pay the health insurance premiums for the children. Plaintiff also paid $2,050 for fees for the divorce mediator they consulted prior to litigation.

Finally, plaintiff transferred what she claims to be marital credit card debts to a lower interest credit card in February 2016 and has continued to make payments towards that debt. Consequently, the date of commencement balance of $5,447 has been reduced by her to $4,335. Exhibits 9, 10.

Defendant urges that plaintiff should be charged with all of the debts.

Plaintiff's obligations to her parents, with the exception of the money used to acquire the former marital residence, which is addressed elsewhere in this Decision After Trial, shall remain plaintiff's. So, too, with the $7,000 which she borrowed from the C investor. However, the parties shall be equally responsible for the balance owed on their marital credit card as of the date of commencement. To ensure that the defendant pays his share of the marital credit card debt, plaintiff shall be and hereby is authorized to reduce the amount of spousal support which has been awarded to defendant hereunder by the sum of $100 per month until paid. Because plaintiff has been provided a holiday on her payments to defendant, the credit card debt shall be recouped from defendant when the actual direct payments from her to him commence.

Counsel Fees

Domestic Relations Law §237(a) authorizes the court to "direct either spouse...to pay such sum or sums of money directly to the attorney of the other spouse to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties." This statute "is designed to redress the economic disparity between the monied spouse and the non-monied spouse." O'Shea v. O'Shea, 93 NY2d 187, 190 [1999]. "An appropriate award of attorney's fees should take into account the parties' ability to pay, the nature and extent of services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances." Grumet v. Grumet, 37 AD3d 534, 536 [2nd Dept 2007]. Domestic Relations Law §237 creates a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. As between the two parties, plaintiff is the more monied spouse, although she also has the greater expenses.[FN21]

In addition to the disparity in incomes and assets, the Court can consider the parties' positions at trial and whether one or the other caused the litigation to be extended. "A court is empowered to direct a spouse to pay for the prosecution or defense of an application by the other spouse as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties'." Brancoveanu v Brancoveanu, 177 AD2d 614, 615 [2nd Dept 1991] (citing Domestic Relations Law § 237 [a]). If the Court determines that attorney's fees should be awarded, the party seeking fees does not have to show indigence. Id. "The court should review not only the financial circumstances of the parties but all other relevant circumstances including the relative merit of the parties' claims." Id. (citing DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987]). The Court should also consider the litigation tactics of the other party and whether they prolong the case unnecessarily. Ventimiglia v Ventimiglia, 36 AD3d 899, 899 [2nd Dept 2007].

Plaintiff's legal fees incurred in this matter exceeded an astounding $40,000.00.[FN22] Exhibits 29, 33. Primarily, plaintiff paid her fees using money borrowed from her parents.

Equally astounding, defendant testified that he has already paid counsel fees of approximately $20,000 and that he owes an additional $35,003.17. Exhibit R reflects that defendant incurred fees (through June 2016) of $56,153.17. Defendant stated that he paid this with $14,000 borrowed from his sister and brother and from his Social Security. He claims that he plans to pay his counsel fees by paying $500 per month until paid.

As noted above, in large part, the reason that this matter proceeded to trial was defendant's refusal to acknowledge that the Social Security benefits of the children belonged to the children and his insistence that he retain all of those monies without any adjustment of plaintiff's child support obligations even though the parties enjoy shared custody. Several settlement conferences were held by the Court, to no avail, owing primarily, in this Court's view, [*14]to defendant's refusal to compromise on this issue and his insistence that he should retain 100% of the monies, without consideration of the income as a factor. By contrast, plaintiff was open to consideration of the Court's settlement proposals which would consider the Social Security income of the children as a factor in child support.

Defendant now seeks an order directing plaintiff to pay an unspecified amount of his legal fees. He contends that "plaintiff [who] earns four to five times what the defendant earns, is well able to afford to contribute toward the attorney fees of the defendant." Defendant's Post Trial Memorandum of Law p15.

After consideration of all of the facts in this case, defendant is awarded the sum of $3,500 as and for legal fees, which the Court finds to be reasonable after consideration of the parties' financial circumstances, the degree to which each party sought to reasonably resolve the matter without resorting to trial, the merits of their respective positions and the equitable distribution determinations made herein. Plaintiff shall pay this amount to defendant at a rate of $100 per month commencing the first full month after the entry of Judgment of Divorce until paid in full.

Attorneys for the Children's Fees

Only plaintiff addressed the fees incurred for the attorney for the children. She urges that each of the parties pay the share of these fees as provided for in the order which appointed Ms. Wexler. The Court adopts that suggestion. The parties are directed to pay any balance remaining of Ms. Wexler's fees for representing their children in the proportions directed in the appointing order within 60 days of the date of this Decision After Trial.

MISCELLANEOUS

The Court has considered the additional contentions of the parties not specifically addressed herein and finds them to be without merit or not worthy of further comment. All other assets not specifically distributed shall remain the property of the party currently in possession.

SUMMARY

Plaintiff is awarded a divorce based on the irretrievable breakdown of the parties' marital relationship provided for under DRL §170(7).

The following awards of equitable distribution, maintenance and child support are made:

Defendant is awarded spousal support in the amount of $850 per month for a period of 24 months commencing the first day of the eleventh full month following entry of the Judgment of Divorce.

Defendant is awarded the entirety of plaintiff's 403(B) account. The parties shall share the cost of effectuating the transfer of the account equally.

Defendant is awarded child support in the amount of $300 per month commencing the first day of the first full month following this Decision After Trial.

The parties shall share the children's statutory add-on expenses, including any reasonable un-reimbursed medical expenses, with defendant paying 78% and plaintiff paying 22%.

Plaintiff is awarded exclusive use and occupancy of the former marital residence subject to the terms set forth herein. The proceeds from the eventual sale of the house shall be distributed as provided herein.

Items that are personal shall remain that party's; for example, a women's hair dryer shall remain plaintiff's, while a men's shaver shall remain defendant's. Each party shall keep any and all jewelry in his/her possession. All items belonging to the children shall remain the children's.

Each party shall be entitled to own, keep and maintain in his/her own name the vehicle used principally by him/her in whatever condition each such vehicle is in. The parties shall arrange for the transfer of titles, if necessary, within 30 days from the date of this Decision After Trial.

Defendant is awarded $3,500 in counsel fees which shall be paid to defendant at the rate of $100 per month until fully paid.

The parties shall remain liable for their respective proportions of the fees for the attorney for the children. Any remaining balance owed to the attorney for the children shall be paid to her within 60 days of the date of this Decision After Trial.

Plaintiff's counsel shall settle Findings of Fact and a Judgment of Divorce in accordance with this decision, on at least 5 days notice, within 30 days of the date hereof. Failure to timely settle the Findings of Fact and Judgment of Divorce may result in this action being dismissed or other appropriate sanctions.

All other prayers for relief not addressed in this Decision After Trial are denied. All arguments advanced but not addressed herein have been deemed to be unavailing or not worthy of further comment.

Counsel are directed to retrieve the evidence and their trial notebooks from the Part Clerk within 10 days of the date hereof. Failure to retrieve the evidence may result in its being discarded and unavailable for appellate purposes.

The foregoing constitutes the Decision After Trial of the Court.

Dated: September 15, 2016

Carmel, New York

HON. PAUL I. MARX, J.S.C. Footnotes

Footnote 1: The Court has not been provided with the minutes of the trial. As such, the Court's recitation and determination of the facts are based on the Court's recollection and notes of the testimony as well as the evidence admitted at trial.

Footnote 2: During testimony, the Court learned that the parties married a second time, on May 5, 2013. No details of that wedding were provided. The Court assumes this was a symbolic event only.

Footnote 3: Compare p. 2 of Defendant's Post Trial Memorandum of Law ("defendant's earning capacity ... had ended") to p.11 ("defendant gave up his consulting business to become a stay at home parent and homemaker"). Defendant testified that his business had dried up and was no longer viable because of various changes in the market place. The decision for him to stay home with the children, clearly, was dictated by his inability to be profitable in his business. In reality, then, he sacrificed nothing more than a dying or dead business.

Footnote 4: This asset was not included on defendant's Statement of Net Worth. Defendant claims that he was unaware that he was entitled to the annuity until shortly before the trial began. His testimony on this point was not credible.

Footnote 5: Defendant's confidence in plaintiff's start-up is inspiring, if not self interested. Clearly, he has not considered the possibility that C might fail, in which case, if the Court renders an award based on only an upside to the company, plaintiff will have no recourse but to seek to modify the amounts she is to pay defendant. The failure of the start-up is as likely as not. While defendant faults plaintiff for leaving —————— where she had a steady salary, the Court does not fault her industriousness or capitalist spirit.

Footnote 6: The Court cannot fathom why plaintiff is paying for the children's health insurance given that defendant receives Social Security benefits which are supposed to be used for the children's needs. Clearly, this is an expense to which defendant should have been contributing.

Footnote 7: Defendant testified that he nets $15,850 from his Social Security benefits because a portion of the payments is taken by the Internal Revenue Service by way of garnishment. He also testified that he expects the tax debt to be "forgiven" in 2017 or 2018.

Footnote 8: This represents an extremely modest 16.89% tax rate. Likely, the actual equivalent income is higher.

Footnote 9: This is virtually identical to the settlement suggested by the Court prior to trial.

Footnote 10: The statute also appears in the Family Court Act under §413(1)(b).

Footnote 11: As used here, the word "credit" is defined as "a deduction from an amount otherwise due." www.merriam-webster.com/dictionary/credit. In other words, a dollar for dollar reduction.

Footnote 12: Unlike the instant case where defendant receives and retains the children's benefits, it appears that the benefits in Graby were received by the children, either directly, or through some other means.

Footnote 13: One justice dissented, concluding that the CSSA did not authorize courts to either increase a non custodial parent's income by the amount of Social Security income paid to the children or to credit the benefits against the non custodial parent's support obligation.

Footnote 14: Social Security tax is 6.2% of income up to $118,500. Medicare tax is 1.45%. Adding the two results in deductions of 7.65%. ($108,653 x .0765 = $8,312 in deductions).

Footnote 15: As set forth above, the Court has provided plaintiff a holiday on spousal support by substituting an award to defendant of plaintiff's interest in her 403(B) account to him. The amount paid to him through the lump sum has been included for the purposes of these calculations.

Footnote 16: Plaintiff shall provide defendant with proof of payment of the premiums annually, as well as such policy information as may be necessary to enable defendant to avail the children of the coverage.

Footnote 17: This statement is at odds with plaintiff's testimony that she did not think she could afford the home.

Footnote 18: Clearly, the parties secured the gift letter to support the application for a mortgage. Such letters are almost de rigeur in mortgage loans. Defendant benefitted from the "gift" as much as plaintiff did; it resulted in their ability to acquire the marital residence. The Court will not negate the loan simply because defendant now decides that identifying the transaction with plaintiff's father as a gift is no longer in his interest.

Footnote 19: The testimony established that the former marital residence is a four bedroom house.

Footnote 20: Plaintiff testified that she paid Mr. London a total of $30,000.

Footnote 21: As noted above, defendant's financial contribution to the family unit since the commencement of the action was minimal. Plaintiff carried the costs of housing, as well as the majority of expenses associated with the children.

Footnote 22: Plaintiff referred to the fees incurred as "the price of freedom."