Lisa R. v Gregory R.

[*1] Lisa R. v Gregory R. 2016 NY Slip Op 51901(U) Decided on February 23, 2016 Supreme Court, Onondaga County Mulroy, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 23, 2016
Supreme Court, Onondaga County

Lisa R., Plaintiff,

against

Gregory R., Defendant.



xxxx



For Plaintiff: Marc Jonas, Esq.

For Defendant: Jon Brenizer, Esq.
Martha E. Mulroy, J.

Decision

Plaintiff/cross-movant Lisa R. (hereinafter the mother) and defendant/movant Gregory R. (hereinafter the father) are the parents of K.R. born 1994, H.R. born 1996, and Z.R. born 1998. They were divorced in 2012 pursuant to a Judgment of Divorce (Martha Walsh Hood, A.J.), filed September 28, 2012. The Judgment incorporated but did not merge the parties' February 9, 2012 oral stipulation. As relevant here, the father agreed to pay the mother $9,265 a month in maintenance for sixty-six months, and $3,125 a month in unallocated child support for the parties' three children, effective March 1, 2012. Upon expiration of the maintenance payments, the father agreed to pay $6,585 a month in child support until the youngest child turned twenty-one years old. The support obligations were based on stipulated incomes of $383,000 for the father and $19,500 for the mother.

On September 20, 2013, the father filed a Notice of Motion seeking, among other things, post judgment modification of his support obligations. In support of his motion, the father submitted an affidavit, dated September 20, 2013, and an attorneys' affirmation, dated September 20, 2013, along with Exhibits A-C. The father subsequently filed a second affidavit, dated [*2]October 11, 2013, with attached Judgment of Divorce, emails between the parties and a statement of net worth. The subsequent submission satisfied the father's 22 NYCRR 202.16 (k) requirement. The mother responded with her affidavit, dated October 28, 2013, with an attached retirement document. After four days of trial, a recusal occurred. The matter was transferred to this Court in June 2015.

On August 7, 2015, the mother filed a cross motion seeking, among other things, enforcement of the parties' Judgment of Divorce and to hold the father in contempt. In support of her cross motion, the mother submitted an attorney affidavit dated July 30, 2015, with Exhibits A-D, her affidavit, dated July 31, 2015, with attached Exhibits A-G, and the affidavit of Peter Karl, Esq., with attached Exhibits A-B.

The modification and enforcement matters proceeded to trial before this Court. The father appeared with Jon Brenizer, Esq. The mother appeared with Marc Jonas, Esq. The trial commenced on October 26, 2015, and continued for six noncontinuous days, concluding on December 4, 2015. The Court notes that the mother moved to dismiss at the close of the father's proof. Having viewed the evidence most favorable to the nonmoving party and having considered all the disputed facts, this Court denied the motion to dismiss (see generally Matter of McClinton v Kirkman, 132 AD3d 1245).

The parties stipulated that the Court would determine requests for attorney's fees on written submissions. On January 29, 2016, the father submitted his Summation on Behalf of Defendant and Affirmation in Support of Counsel Fees Application, with attached billing statements from counsel and an expert. The father also submitted correspondence to the Court dated February 4, 2016, stating only one child remains unemancipated. On February 11, 2016, the mother submitted her Summation on Behalf of Plaintiff, with Exhibits A-B, and an Affidavit of Services, with attached billing statements.

After careful weighing of the evidence, assessing first-hand the credibility of the witnesses, evaluating the demeanor of the parties, taking judicial notice of the Acknowledgment of Appearance and Adoption of Oral Stipulation [FN1] , dated February 9, 2012 (see In re A.R., 309 AD2d 1153), and analyzing the numerous exhibits received into evidence, this Court determines the father has established a sufficient change in circumstances warranting a modification of his child support and maintenance obligations.

The Court's analysis begins with maintenance. The parties' stipulation of settlement that was incorporated but not merged into their Judgment of Divorce contractually bound the parties to the maintenance terms. Generally, maintenance provisions may be modified only upon a showing of extreme hardship (see Domestic Relations Law § 236 [B] [9] [b]). "The parties to a separation agreement, however, may contractually provide for a support modification on a lesser standard than legally required" (Martin v Martin, 80 AD3d 579, 580, quoting Glass v Glass, 16 AD3d 120, 121 [internal quotation marks omitted]). Here, the parties stipulated that the standard for modifying their maintenance provisions shall be the lesser standard of substantial change of [*3]circumstances (Stipulation Transcript, dated February 9, 2012, p. 13).

"It is well settled that a loss of employment may constitute a change in circumstances justifying a downward modification of [support] obligations where the termination occurred through no fault of the party seeking modification and the party has diligently sought re-employment" (Jelfo v Jelfo, 81 AD3d 1255, 1257, quoting Matter of Fragola v Alfaro, 45 AD3d 684, 685 [internal quotation marks omitted]). Here, the father received written notice on May 13, 2013 that his employer did not wish to renew the Employment Agreement between them (Transcript, dated October 26, 2015, pp. 32-35; see Exhibit 3, p. 6, para. [8] [b]). Pursuant to the terms of the Employment Agreement, termination upon one hundred and twenty days written notice is termination without cause (see Exhibit 3, p. 7, para. [8] [h]). The agreement provides for "for cause" termination upon thirty days notice to remedy the issue for which cause is based (see Exhibit 3, p. 7, para. [8] [f], [g]). There was no evidence provided that the "for cause" provision of the Agreement was the basis for the father's termination. Consequently, this Court finds that the father's termination was through no fault of his own (see Grossman v Composto-Longhi, 96 AD3d 1000, 1002).

The issue before the Court is whether the father diligently sought re-employment. The evidence establishes that after receiving his notice of termination, the father inquired about surgical openings at several hospitals in Syracuse, Rome and Oneida (Transcripts, dated October 26, 2015, pp. 36-110; October 28, 2015, p. 435; October 30, 2015, pp. 21, 28-30). He maintained his surgical privileges at all the local hospitals, even upgrading his privileges at one hospital (Transcript, dated October 26, 2015, p. 50). He engaged two temporary health care services and procured part time Locum Tenens employment (Transcript, dated October 26, 2015, pp. 57-64). He also obtained part-time employment through the New York State Department of Corrections (Transcript, dated October 26, 2015, p. 105). He reached out to local medical groups seeking opportunities (Transcript, dated October 26, 2015, pp. 36-110). He provided medical reviews for local law firms and insurance companies (Transcript, dated October 27, p. 320). The father interviewed and was offered a position at Rome Hospital (Transcript, dated December 4, 2015, pp. 13, 38). Although a contract was never executed, the offer was for a base salary of $280,000, with opportunities for increases. Instead of accepting the Rome Hospital offer, the father signed a lease agreement with a local surgical care office and started his own practice (Transcript, dated October 28, 2015, pp. 470-473). He continued to supplement his practice with Locum Tenens employment and part-time employment with the New York State Department of Corrections. The Court finds that the father's efforts to secure employment commensurate with his qualifications and experience were diligent, and his passing on the Rome Hospital offer does not render his job search otherwise. Consequently, the father established that, at the time he filed his motion, he suffered a substantial decrease in his income by reason of circumstances beyond his control, and despite his diligent job search, he was unable to find employment at a salary comparable to his salary at the time of the divorce.

In modifying the maintenance obligation, this Court will consider the father's substantial change in circumstances and the relevant statutory factors to calculate an appropriate maintenance award (see Domestic Relations Law § 236 [B] [6] [a]). "[T]he change is to be measured by a comparison between the payor's financial circumstances at the time of the motion and at the time the order of which modification is sought was made" (Rabinovich v Shevchenko, [*4]120 AD3d 786, 786).

Here, the evidence establishes that the mother earns $42,000 in her employment with a managed long term care facility (Transcript, dated December 4, 2015, pp. 98-103). Her position is based on a one year contract contingent on grant money (Transcript, dated December 4, 2015, p. 121). She also works part-time in a national coffee chain (Transcript, dated December 4, 2015, p. 121). There was no evidence offered that the mother has current earning potential higher then her stated income. The evidence establishes that the father's income ranged historically from $262,000 to $407,000 prior to his loss of employment (see Exhibits K-N). Three years have passed since the father moved for this downward modification. His expert opined that the father's income in 2015 would be approximately $225,000, and the evidence establishes that the income from his practice is increasing (Transcript, dated October 27, 2015, pp. 225, 230). Consequently, the Court imputes income to the father in the amount of $300,000 [FN2] , based upon his demonstrated earning potential (see Belkhir v Amrane-Belkhir, 118 AD3d 1396, 1397).

In considering the factors to determine a maintenance award, the Court finds that the parties were married for twenty years and there was no evidence presented regarding their age or health. The evidence suggests the father has maintained a comfortable standard of living, whereas the mother lives modestly and under financial stress (Transcript, dated December 4, 2015, pp. 116-119) (see Chisholm v Chisholm, 138 AD2d 829, 830-831). After his employment was terminated, the father obtained a bankruptcy discharge of his debt, including the marital debt he assumed in the divorce (Transcripts, dated October 26, 2015, p. 36; October 28, 2015, pp. 373-374). The mother is still burdened with her portion of marital debt, and has incurred additional debt to obtain a degree in social work (Transcript, dated October 30, 2015, p. 45). The father is currently living with a paramour and the evidence establishes they share living expenses. The mother shares a home with the children and invaded the children's college funds to pay their living expenses (Transcript, dated October 30, 2015, p. 77). The father admitted in his testimony to taking cruises with his girlfriend during these proceedings (Transcript, dated October 28, 2015, p. 395). He had sufficient funds to purchase his boat from the bankruptcy estate (Transcript, dated October 28, 2015, p. 386). He also traveled, dined out, enjoyed spas, and gave gifts to others during these proceedings (Transcript, dated October 28, 2015, pp. 452-456).

After considering all the relevant statutory factors and balancing the mother's reasonable needs against the father's ability to pay, this Court awards maintenance to the mother of $5,000 a month for a period of 72 months, retroactive to the date of the father's request for a modification: September 20, 2013, and expiring on the date the youngest child turns twenty-one in 2019 (see Domestic Relations Law § 236 [B] [6] [a]; Murphy v Murphy, 126 AD3d 1443, 1444; Lazar v Lazar 124 AD3d 1242; Salvato v Salvato, 89 AD3d 1509, 1510). This Court concludes that the [*5]additional term of maintenance "should afford [the mother] a sufficient opportunity to become self-supporting" (Zufall v Zufall, 109 AD3d 1135, 1137, quoting Jaramillo v Jaramillo, 108 AD3d 651). "Such an award will better serve the primary goal of maintenance, which is to encourage rehabilitation and self-sufficiency to the extent possible, while still accounting for a large discrepancy in earning power between the parties" (Bean v Bean, 53 AD3d 718, 724, quoting Semans v Semans, 199 AD2d 790, 792). Moreover, the mother testified that the maintenance award was negotiated in exchange for her interest in the father's then flourishing medical practice (Transcript, dated October 30, 2015, p. 40). Extending the term of maintenance better secures the mother's bargained for benefit while providing the father a respite from the high monthly payment [FN3] .

Turning to the father's request to modify his child support obligation, the parties' stipulation neither allocated the father's child support obligation as between the children nor provided a formula for a reduction in the event of a child's emancipation (Stipulation Transcript, dated February 9, 2012, pp. 19-20). Further, there is no request in the motion papers to allocate child support as between the parties' three children [FN4] . In any event, the father failed to establish an entitlement to a downward modification of the unallocated order of child support based on the emancipation of one of the children (Lamassa v Lamassa, 106 AD3d 957). There is no evidence that the amount of unallocated child support is excessive based on the needs of the remaining children (id.). Consequently, this Court will continue that portion of the parties' agreement providing for unallocated child support (see Schulman v Miller, 134 AD3d 616).

However, the Court finds, as above, that the father met his burden establishing a change in circumstances sufficient to modify his child support obligation based on the termination of his Employment Agreement (see Merl v Merl, 67 NY2d 359; Matter of Boden v Boden, 42 NY2d 210). The evidence of the father's bankruptcy and lack of assets establishes that the father does not have sufficient means to provide child support at the level set by the parties in their settlement agreement (compare Schwaber v Schwaber, 91 AD3d 939). Although the father established that he no longer earns the same salary as when the parties agreed to child support, "in determining a party's child support obligation, a court need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential" (Filiaci v Filiaci, 68 AD3d 1810, 1811, quoting DeVries v DeVries, 35 AD3d 794, 795 [internal quotation marks omitted]). Here, the evidence establishes that the father's practice is earning more income each year (Transcript, dated October 27, 2015, pp. 225, 230; see Exhibit 19). The Court therefore imputes income to the father in the sum of $300,000 based upon his past income, education background, and demonstrated earning potential [*6](Sadaghiani v Ramin, 83 AD3d 1309; Armstrong v Armstrong, 72 AD3d 1409, 1413-1414; Matter of Muselevichus v Muselevichus, 40 AD3d 997, 998-999).

The Court extended herein the term of maintenance to terminate simultaneously with child support. "Where, as here, there is no provision for an adjustment of child support upon the termination of maintenance, there is no basis for the court to deduct maintenance from [the father's] income in determining the amount of child support" (Zufall, 109 AD3d at 1135, quoting Juhasz v Juhasz [appeal No. 2], 92 AD3d 1209, 1211 [internal quotation marks omitted]). Maintenance and child support will end in 2019, therefore, the statutory deduction is not mandated in determining the father's income for child support calculation purposes (Alecca v Alecca, 111 AD3d, 1127, 1130).

The father's closing submission sets forth child support calculations for each year since the modification motion was filed. This Court declines to compute the father's income separately for each year from 2013 through 2015 to account for variations in his income, because Domestic Relations Law § 240 requires the Court to use the gross income as it should have been reported on the most recent federal income tax return, or impute in its discretion (Spilman-Conklin v Conklin, 11 AD3d 798, 799; see also Domestic Relations Law § 240 [1-b] [b] [5] [I], [iii]; Holterman v Holterman, 3 NY3d 1, 10).

In determining the mother's income for child support purposes, the Court "is required to begin the calculation with the parent's gross total income as should have been or should be reported in the most recent federal income tax return" (Matter of DelSignore v DelSignore, 133 AD3d 1207, 1208-1209 quoting Matter of Moran v Grillo, 44 AD3d 859, 860, see also Marlinski v Marlinski, 111 AD3d 1268, 1270, 974 N.Y.S.2d 200). Maintenance received and reported on income taxes are to be used as income for child support calculation purposes (Lueker v Lueker, 72 AD3d 655). Although a court may consider prospective income figures for the tax year not yet completed, this Court declines to do so (id.). Consequently, the mother's income for child support purposes is her income as reported on her 2014 federal income tax return, after subtracting federal insurance contributions act (FICA) taxes actually paid from her employer generated income: $86,039.84 (see Exhibit 20) (Domestic Relations Law § 240 [1-b] [5] [vii] [H]). The Court notes that it only deducted FICA taxes from the mother's W-2 income because FICA taxes are not deducted from income derived from maintenance (Kaufman v Kaufman, 102 AD3d 925, 927).

In calculating the parties' child support obligation [FN5] , the Court added the father's imputed income ($300,000) to the mother's adjusted gross income ($86,039.84) to determine the combined parental income to be $386,039.84. The father's pro rata share of child support is 78% and the mother's pro rata share is 22%. Using the statutory cap of $141,000 for the unallocated child support amount at 29%, the parties' child support obligation is $40,890. The father's child support obligation, therefore, is $31,894.20 annually, or $2,657.85 a month, retroactive to the date of the father's request for a modification: September 20, 2013; and expiring on the date the youngest child turns twenty-one in 2019 (see Domestic Relations Law § 236 [B] [7] [a]). As the parties' originally stipulated to limiting the child support obligation to the statutory cap, this [*7]Court declines to determine a child support obligation over the statutory cap (see Domestic Relations Law § 240 [1-b] [c] [3], [f]; Scully v Scully, 104 AD3d 1137, 1138). In any event, the father's payments of the majority of the children's college costs and 100% of the children's health care premiums are sufficient factors in limiting the parties' child support obligation to the statutory cap (see DelSignore, 133 AD3d at 1207). The parties did not request a modification of the pro rata obligation for the children's uncovered medical costs.

There was no evidence provided that the maintenance and child support as awarded herein would leave the father with insufficient resources to meet his own needs, and these numbers are less than what he paid in 2014 (see Exhibit 19, 34, WW, KKK) (see generally Muscarella v Muscarella, 93 AD2d 993). The mother requested payments of support through an income execution and for such other and further relief as the Court deems just, proper and equitable (see Domestic Relations Law §§ 240 [1] [a], [2]; Social Services Law §§ 111-g [3], 111-h). There was insufficient evidence provided for this Court to execute against the father's professional limited liability company. The Court also declines to direct the maintenance and child support payments be made through a qualified domestic relations order (see 26 USC § 414 [p]). There is no evidence that the father will be unable to satisfy the modified maintenance and child support obligation, and the Court will provide for payment of arrears as discussed below without need to invade retirement accounts (see generally Lundon v Lundon, 120 AD3d 1395). However, based on the history of the father's failure to make consistent and timely support payments, this Court directs payments to be made through the Onondaga County Support Collection Unit (SCU). Consequently, the father shall pay to the mother a monthly child support payment of $2,657.85 through SCU. The father's maintenance obligation shall also be paid through SCU. The father shall make direct payments to the mother until the mother has set up an account with SCU. Payments are due on the first of every month.

The evidence establishes that the parties rarely delineated between maintenance and child support (see Exhibits 19-23, 34, WW, KKK). As such, this Court is constrained to calculate maintenance and child support arrears as one sum. The Court modifies herein the father's maintenance obligation to $5,000 a month, or $60,000 a year. The modified child support obligation is $2,657.85 a month, or $31,894.20 a year. The evidence establishes that the father made no maintenance or child support payments from the date of filing, September 20, 2013 to December 31, 2013 (see Exhibits 23, WW, KKK). Thus, his maintenance and child support arrears for 2013 are $25,270.91 ([$5,000+$2,657.85] x3.3 months).

The evidence further establishes that the father paid a total of $120,609.55 [FN6] in maintenance and child support for the year 2014, and $39,430.25 for the year 2015 (Transcript, dated October 26, 2015, pp. 135-149, 249-252) (see Exhibits 23, 34, 35, WW, KKK [FN7] ). For these [*8]two years, the father paid $160,039.80 in maintenance and child support. His modified obligation for a two-year period is $120,000 in maintenance and $63,788.40 for child support, for a total of $183,788.40. Consequently, the father's maintenance and child support arrears for the years 2014 and 2015 total $23,748.60 ($183,788.40-$160,039.80). The total post filing maintenance and child support arrears for 2013 to 2015 are $49,019.51 ($25,270.91+$23,748.60). There was no evidence presented regarding the father's payments for the year 2016. Consequently, effective March 1, 2016, the father shall make additional monthly payments for arrears in the amount of $1,167.13 ($49,019.51÷42) for the remaining forty-two months of the maintenance and child support term to be paid through SCU in the same manner as maintenance and child support.

Addressing the mother's cross motion for contempt and enforcement, there is no dispute that the father failed to meet his support payment obligations prior to moving for a modification (see Exhibits 35, AA, WW, KKK). Initially, the Court determines that a contempt finding is not warranted because arrears can be enforced through a money judgment (see Domestic Relations Law § 245; Keller v Keller, 126 AD3d 940, 941-942). In any event, the Court would deny the mother's request to hold the father in contempt for failure to comply with the support provision of judgment. "The decision whether to punish noncompliance with a court directive as a contempt generally rests in the sound discretion of the court" (Di Filippo v Di Filippo, 300 AD2d 1003, 1004, quoting Busch v Berg, 52 AD2d 1082, 1082). Here, the father moved to modify his support obligations when his contract was terminated, diligently sought employment, and made partial support payments. Furthermore, when he had no income, the father invaded a retirement account, incurring a substantial tax liability. Moreover, the mother filed her cross motion seeking contempt two years after the modification proceeding commenced. Although she was within her rights to file her cross motion, the delay infers the absence of contemptuous behavior.

It is undisputed that the father failed to satisfy his maintenance and child support obligations prior to seeking the modification (Transcripts, dated October 28, 2015, pp. 370, 417-419; October 30, 2015, pp. 46-48; December 4, 2015, p. 79). The evidence establishes the father owes arrears on maintenance and child support in the sum of $22,726.87 for failure to meet his full support obligation prior to filing for a modification (see Exhibits 35, AA, WW, KKK). However, the mother testified that she does not seek arrears for the mortgage payments the father deducted from his maintenance payments to pay her mortgage obligation (Transcript, dated December 4, 2015, pp. 112-113). Exhibit AAA reveals mortgage payments deducted in April and May 2012 ($2,708.01+$2,708.01 = $5,416.02). The mother seeks the March 2012 mortgage payment in the arrears calculation because the father's payment did not satisfy her mortgage obligation (Transcript, dated December 4, 2015, pp. 112-113). Consequently, the mother is awarded a money judgment in the amount of $17,310.85 ($22,726.87-$5,416.02).

The Court declines to grant the mother's request for prejudgment interest on the arrears award. The parties' agreement did not provide for prejudgment interest on the facts presented here. The stipulation only provided for interest upon default of the last two lump sum maintenance payments of $18,530, which under the original terms, the father was to pay to the [*9]mother on October 1, 2016 and March 1, 2017 (Stipulation Transcript, dated February 9, 2012, pp. 30-33). "An award of prejudgment interest may only be made if the default was willful, in that the obligated spouse knowingly, consciously and voluntarily disregarded the obligation under a lawful court order" (Domestic Relations Law § 244; Parnes v Parnes, 41 AD3d 934, 937; Gutin v Gutin, 155 AD2d 586). Here, the father made partial payments on his support obligation since his income declined, thereby, this Court finds the failure to fully satisfy the support obligations was non willful (see Matter of Talandis v Talandis, 233 AD2d 689).

Similarly, the mother is not automatically entitled to an award of counsel fees because the evidence fails to establish the father was in willful violation of the Judgment's support obligations (see Domestic Relations Law § 237 [c]; Cheruvu v Cheruvu, 61 AD3d 1171, 1175). Further, the terms of the parties' stipulation provide no contractual entitlement to an award of attorney's fees on the facts presented here. The parties' stipulation only provided for the payment of attorneys fees upon default of the last two lump sum maintenance payments (Stipulation Transcript, dated February 9, 2012, pp. 31-33).

Domestic Relations Law § 238 authorizes a court in its discretion to award counsel fees in an enforcement proceeding to compel the payment of money. There is a "rebuttable presumption that counsel fees shall be awarded to the less monied spouse" (Leonard v Leonard, 109 AD3d 126, 129-130; see Domestic Relations Law § 238). "When exercising its discretionary power to award such fees, a court may consider all of the circumstances of a given case, including the financial circumstances of both parties, the relative merit of the parties' positions, the existence of any dilatory or obstructionist conduct, and the time, effort and skill required of counsel" (Blake v Blake, 83 AD3d 1509, 1509 [internal quotation marks and citations omitted]). The Court finds that when the maintenance award and arrear payments are taken into consideration, the parties' incomes are relatively similar. The father's expert testified that the father was projected to earn approximately $225,000 in 2015 (Transcript, dated October 27, 2015, pp. 225, 230). After subtracting his annual maintenance and arrears payments to the mother, the father's earnings would be approximately $150,994.44. The mother currently earns $42,000 in her full time position and approximately $10,000 in her part time position (Transcript, dated December 4, 2015, pp. 98-103). Adding the annual maintenance and arrears payments, the mother's income is $126,005.57. The Court notes that this matter is a relatively simple modification and enforcement proceeding. It should not have taken three years of litigation. This Court finds that both parties engaged in obstructionist tactics and each is equally at fault for the prolonged litigation (Decker v Decker, 91 AD3d 1291, 1291-1292). The Court notes that the mother has already paid most of her attorney's fees as shown in the attachment to her fees request. Given these factors, this Court declines to award attorney's fees to the mother. Finally, the father's application for attorney's fees is denied. It is not proper to award attorney's fees to a monied spouse and no party's actions rose to the level of sanctionable conduct (see Domestic Relations Law §§ 237, 238; 22 NYCRR § 130-1.1; Silverman v Silverman, 304 AD2d 41, 47-48).

The parties settled the remaining issues raised in the motion and cross motion. The Court notes that the mother sought payment of a child's orthodontic bill. There was no evidence presented that the mother provided the bill to the father for payment. The Court directs the mother provide any unpaid bill to the father and the father shall pay the bill in accordance with [*10]the parities' original stipulation. The mother's request for reimbursement of improvement costs on the former marital home is denied as not provided for in the parties' stipulation. The stipulation provided that the parties would share specific carrying costs, not including those requested in the mother's cross motion (Stipulation Transcript, dated February 9, 2012, pp. 41-42). The request to modify which party may claim the children as tax exemptions is raised for the first time in the mother's closing summation, and is therefore, denied. Any further requests not specifically addressed in this decision shall be denied for failure of proof. The father's attorney shall submit an order incorporating the terms of this decision and the parties' stipulation entered on the record on December 4, 2015. Any future matters concerning maintenance and child support shall be immediately referred to the appropriate Family Court.

DATED: February 23, 2016

Syracuse, New York

MARTHA E. MULROY

ACTING SUPREME COURT JUSTICE Footnotes

Footnote 1:The Acknowledgment of Appearance and Adoption of Oral Stipulation provides for modification of the parties' agreement by oral stipulation. The Court takes judicial notice of this Acknowledgment because the parties stipulated at trial to modified terms regarding college costs.

Footnote 2:The parties' stipulated to submit an expert witness' testimony from the previous trial. The expert opined that the father's current earnings capacity is between $367,315 and $430,000 (see also Exhibit VV). Because the Court was unable to assess first hand the expert's credibility, the Court gives little weight to the transcript testimony of the expert given during the previous trial.

Footnote 3:The Court is mindful that the new maintenance obligation provides for approximately $75,000 less in maintenance to the mother over the life of the term, even as extended. The Court finds this new obligation a fair balance between the father's new financial reality and the parties' original agreement.

Footnote 4:Although the father's letter submission dated February 4, 2016 informs the Court that a child had reached the age of emancipation, he cannot raise this issue for the first time in his closing papers.

Footnote 5:It is undisputed that the mother is the custodial parent for child support calculation purposes (Transcript, dated October 26, 2015, p. 19).

Footnote 6:The Court did not include the May 2014 transfers of $8,641.93 and $7,781 in this calculation because there was insufficient evidence whether these payments included equitable distribution transfers or support payments.

Footnote 7:These Exhibits reveal the father made the following payments in 2014: eleven payments of $1,268.75, four payments of $1,442, four payments of $9,265, and one payment each of $10,000, $7,500 and $46,325; and the following payments in 2015: eleven payments of $1,268.75, three payments of $6,500, and one payment each of $4,123 and $1,851.