This is a sad and difficult divorce case. Sad, because the parties, who had a marriage where they began with little and eventually became very wealthy, still seem to have a reservoir of appreciation, respect and even fondness for each other despite the poor way the defendant-husband ended the marriage and the hardened positions they were forced to assume in the litigation. Difficult, because of the scope of the litigation, which was literally intercontinental, with a custody battle fought in the French courts and financial issues fought in this court. The litigation over finances culminated in a trial that spanned 16 days, included testimony from seven witnesses and resulted in the introduction of 149 documentary exhibits. Following the conclusion of the financial trial, both sides submitted post-trial briefs along with affirmations addressing counsel fees.

There are four major economic issues to be decided. The first is the percentage of the plaintiff-husband's business, a hedge fund, that the defendant-wife should be awarded as her [*2]share of equitable distribution. The second is the amount and duration of the maintenance plaintiff must pay defendant. The third is the amount of child support plaintiff must pay to benefit the parties' one child. The fourth is what, if any, additional litigation fees are to be awarded to defendant, or more specifically, whether there should be a reapportionment in favor of defendant of the $1,000,000 distribution ordered from marital funds to cover her interim counsel fees.

To one extent or another, the four issues are interconnected. Most notably, the amount of money awarded to defendant as equitable distribution will affect what she is entitled to receive as maintenance. Similarly, equitable distribution, and, to a lesser extent, maintenance and child support, will have a bearing on the issue of counsel fees.

There are also two underlying matters that will affect the court's award to defendant, particularly the maintenance award. These underlying matters have less to do with financial calculations or the application of laws and rules than they do with human behavior. The first, which might be dubbed the "French factor," concerns defendant's decision to continue to reside, along with the parties' twelve-year-old son, in Paris. Pointing to France's extremely high tax rate on the wealthy, defendant claims she needs a larger award of maintenance to meet her needs, and a larger award of child support to meet their son's needs, than she would if she still lived in New York. Thus, whether the parties' move to Paris was intended to be temporary or permanent, and whether defendant has a legitimate basis for insisting on remaining there at plaintiff's expense are questions that need to be addressed.

The other underlying matter concerns the reasons for defendant's increased rate of spending in the later years of the marriage. Was it simply that the family had attained an enhanced lifestyle - one that defendant is entitled to maintain - or was it, at least in part, defendant's response to the deterioration and ultimate collapse of the marriage? The answer to this question, too, will influence the amount of maintenance to be awarded.

The starting point of this decision will be a brief account of the parties' 14 year marriage, as established by the evidence adduced at trial, and the proceedings that took place in the case prior to trial. I will then address each issue in roughly the same order that the parties' did in their post-trial memoranda and counsel fee application submissions: equitable distribution, maintenance, child support and counsel fees. Under each section, I will set forth the relevant findings of fact, including any relevant credibility determinations, and conclusions of law. At the end of the decision, I will issue a directive outlining how the various awards are to be implemented.

Plaintiff, who is now 44, and defendant, who is now 45, met in college, plaintiff having attended John Hopkins University, where he received a degree in applied mathematics and economics, and defendant having attended Goucher College, where she received a degree in mathematics. After graduating in 1991, they went their separate ways but reconnected a few years later in early 1994 when they ran into each other at Penn Station. After a brief period of long distance dating, with plaintiff living in New York and defendant living in Baltimore, defendant moved to New York. At first, the couple lived in an apartment that plaintiff shared with friends. In September 1994, plaintiff and defendant rented their own apartment on East 61st Street, an apartment which they would later purchase. The parties were engaged in 1995, and [*3]married on October 12, 1996.

Early in their relationship, plaintiff was a young securities trader who began working immediately after college at the investment firm Donaldson Lufkin & Jenrette (DLJ) and by the time he and defendant moved in together, he was earning $225,000 a year. Using his specialized knowledge of mortgage-backed securities, he steadily moved up the rungs of the financial world ladder, first working at two other broker-dealer companies and then in 1996, with some former DLJ colleagues, starting a trading firm, Links Securities. In 2000, Links joined with two investors to form Guggenheim Partners, where plaintiff played an increasingly important role. Finally, in 2004, plaintiff embarked on the creation of his own hedge fund, GS Gamma, which plaintiff continues to own and operate. As plaintiff went from working for others to working for himself, his income grew exponentially and by 2009 he was earning over $10 million per year.

Along with plaintiff's financial success came major changes in the parties' domestic life. Most importantly, their only child, a son, was born on March 12, 2002. With the birth of the child, defendant, who had earned a Master's degree in decorative arts at the Cooper-Hewitt National Design Museum and then worked part-time as an art appraiser and adjunct college instructor, stopped working outside the home altogether. The family bought a weekend home in East Hampton, which they later sold in order to devote more time to foreign travel, and they increased the size of their East 61st Street apartment by combining it with an adjoining unit. In 2008, the parties sold the East 61st Street apartment and moved to Central Park West. This apartment, which they rented in the iconic San Remo for $30,000 per month, had five bedrooms, a palatial dining room and a panoramic view of the park.

In June 2009, an event occurred that would have profound ramifications for the marriage and for this divorce: the family moved to Paris. A good deal of the trial testimony concerned the move, and this issue will figure into the discussion that follows. The basic facts are that the parties moved for strictly personal reasons, it having been a dream of the couple, or at least of defendant, to live in Paris, a city they had visited on numerous occasions. When they embarked to live out this dream, they did so without any connection to the city; they had no family, friends or business acquaintances there; they owned no property there; and neither of them, it appears, had ever lived in France or anywhere else outside of the United States. Once in Paris, the family lived in two temporary residences until the completion of major renovations to the apartment they had rented in a luxury building, the Palais Royale, on Rue De Valois. They enrolled their son in the Lennen School, a bilingual school where half the classes were taught in French. For the next year, plaintiff attempted to conduct his business from a home office in the Paris apartment while returning to work in New York at least one week each month.

On October 12, 2010, the parties celebrated their fourteenth wedding anniversary. Seven days later, on October 19, plaintiff called defendant from New York to tell her that he no longer wanted to be married. Plaintiff never returned to live in Paris; defendant and the child continue to live in Paris to this day.

Plaintiff commenced the divorce action on November 3, 2010. By an order of another justice of this court, the issues of child custody and visitation were left to be decided by the French courts. On July 4, 2011, the Tribunal De Grande Instance De Paris rendered its decision granting custody of the parties' son to defendant and allowing plaintiff extended summer and holiday vacation visitation. All subsequent applications concerning the child continue to be [*4]heard in France.

After the financial portion of the case was transferred to me at the end of 2011, I issued a decision on a motion made by defendant to hold plaintiff in contempt for having utilized marital funds to purchase, post-commencement, a house in Connecticut (see Sykes v Sykes, 35 Misc 3d 591 [Sup Ct, NY County 2012]). Subsequently, on a motion made by plaintiff, I issued a decision related to counsel and litigation fees (see Sykes v Sykes, 41 Misc 3d 1061 [Sup Ct, NY County 2013]).

Commendably, the parties were able to agree on how to equitably distribute much of the marital estate prior to or during the trial. This includes the vast majority of the parties' non-business property and a good portion of their business property. The parties agreed upon the values of such items as their real estate (including plaintiff's Connecticut house), their bank and investment accounts, as well as plaintiff's accrued management fees, accrued incentive fees, and capital account in his hedge fund, and further agreed to distribute these assets equally. Additionally, plaintiff states in his post-trial memorandum that he is no longer asserting that two other items, namely his units in Guggenheim Partners, with an agreed upon value of $7.50 per unit, and his Credit Suisse IRA, are his separate property. Thus, these two assets join the others to be distributed equally. Accordingly, what remains in dispute are a few relatively minor assets and one major one, specifically plaintiff's interest in GS Gamma.

GS GammaAt the center of this case has always been plaintiff's hedge fund, GS Gamma. As confirmed by the evidence at trial, plaintiff, through great intelligence, skill, hard work, ambition, fortitude, a certain amount of luck, good timing, and the development of a successful quantitatively-oriented investment strategy, has managed to build a thriving business. Fortunately, I need not engage in the arduous task of deciding the value of GS Gamma since the parties were able to stipulate that it was worth $8,000,000 as of the date of commencement. However, they were unable to agree on the percentage defendant should receive of that $8,000,000. Although defendant asserts she is entitled to the same fifty percent that she will receive of the other marital assets, plaintiff contends that she is entitled to no more than five percent. Translated to dollars, defendant is seeking $4,000,000, while plaintiff is willing to part with but $400,000, a difference of $3,600,000. In determining the appropriate distribution of marital property to be made in a divorce action, courts are to look first and foremost to the 14 factors listed under Domestic Relations Law Section 236B(5)(d). Although the statute requires a court to consider all the factors in making its determination, it does not impose a requirement to engage in a point-by-point catechistic discussion of each and every one of them (see Morille-Hinds v Hinds, 87 AD3d 526, 527 [2d Dept 2011]). As a result, I will consider, as I must, the factors listed under DRL § 236B(5)(d), with attention given to them all, both collectively and individually. At the same time, the discussion will be largely limited to the seventh factor, which bears most directly on the question of each spouse's share of GS Gamma. That factor calls for the consideration of "any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party" (DRL § 236B[5][d][7]). [*5]

It is defendant's position that she made significant contributions to plaintiff's creation and growth of GS Gamma, contributions warranting an award of fifty percent of its date of commencement value. Plaintiff, on the other hand, while recognizing that defendant's contributions to his life and the family's life entitle her to fifty percent of a good deal of the marital estate, draws the line when it comes to the business he built. By his way of thinking, defendant contributed practically nothing to the success of GS Gamma, thus entitling her to no more than five percent of its value.

Before discussing the evidence at trial bearing on defendant's contributions to plaintiff's hedge fund, I must address defendant's assertion that there is something akin to a presumption that she is entitled to fifty percent of plaintiff's interest in that business. Although the law often favors a distribution of marital assets that is as equal as possible, especially in a marriage of a fairly long duration such as this, it cannot be said that a fifty-fifty division of a titled spouse's business is the standard irrespective of the contribution by the non-titled spouse.

Contrary to what defendant argues, case law has long confirmed that business assets are to be treated differently from other assets for purposes of equitable distribution. Almost 30 years ago, the Court of Appeals, in a case affirming the Appellate Division, Fourth Department's reduction of the plaintiff-wife's share of the value of the defendant-husband's dental practice from fifty percent to twenty five percent, stated the following:

Although plaintiff's contributions as a homemaker are indeed worthy of full consideration, there is no requirement that the distribution of each item of marital property be on an equal or 50-50 basis. The Appellate Division did not abuse its discretion, therefore, in taking account of the modest nature of plaintiff's contributions to the dental practice.

The view that business assets are not to be routinely divided equally for equitable distribution purposes is shared by leading First Department cases such as Capasso v Capasso, 129 AD2d 267 (1st Dept 1987) lv denied, 70 NY2d 988. There the court wrote: "Considering the wife's direct contributions to Nanco [the husband's construction business] in combination with her spousal, parental and homemaker services, we find her equitable share in Nanco's appreciation to be 20%" (id. at 283; see also Teitler v Teitler, 156 AD2d 314 [1st Dept 1989], lv dismissed, 72 NY2d 963 [1990]["A 75% distribution in favor of defendant appears to be more equitable than an equal division of the appreciation value of the art business."]). Although defendant has cited a small number of cases from the First Department and other departments in which the non-titled spouse was awarded fifty percent of the value of the other spouse's business, these represent a distinct minority of the reported decisions and they generally involve situations where there were significant direct contributions made to the business by the non-titled spouse.

Having concluded that there is no presumption in favor of awarding defendant an equal share of GS Gamma, I will now evaluate the evidence presented at trial relevant to determining the percentage of the value that defendant is entitled to receive. The determinative factor, of course, is the extent of defendant's contributions - direct and indirect - to the creation and growth of the business (see DRL § 236B[5][d][7]).

Considering defendant's lack of training or experience in business or finances in general, [*6]let alone in hedge funds or the world of mortgage-backed securities, she cannot be expected to have been directly involved in the workings of GS Gamma. However, she might have been expected to perform the role of the "corporate spouse" by attending or hosting dinners, parties, or other business-oriented social events. The record shows that she did this infrequently. On the other hand, plaintiff rarely asked her to perform this function, and there is no evidence that she ever refused any such request when one was made. Moreover, plaintiff himself seldom engaged in after-work socializing with co-workers, investors, or other business associates. Rather, it seems that plaintiff was not given to blurring the boundaries between his work life and his home life.

If defendant's claim for an equitable share of plaintiff's interest in his business were to be judged solely on the basis of her direct contributions - meaning services performed for the benefit of the GS Gamma entity itself - then she might very well be entitled to no more than the five percent that plaintiff believes she should get. But as DRL § 236B(5)(d)(7) makes clear, consideration also must be given to a range of services that are at best only indirectly connected to the business in question. These services are the duties performed within a marriage in one's capacity as a "spouse, parent . . . and homemaker" (DRL § 236B[5][d][7]).

Much has been written about the "economic partnership" concept of marriage and the role it plays in dividing marital assets. Perhaps the best and most succinct statement on economic partnership is found in the Appellate Division, Third Department's decision in Brennan v Brennan, 103 AD2d 48 (3d Dept 1984), an opinion later quoted by the Court of Appeals in Price v Price, 69 NY2d 8 (1986). In Brennan, Justice Howard Levine, writing for the court, stated:

The Equitable Distribution Law was enacted as a comprehensive reform of matrimonial law to reflect modern awareness that marriage is an economic partnership, the success of which is dependent not only upon the respective financial contributions of the partners, but also on a wide range of nonremunerated services to the joint enterprise, such as homemaking, raising children and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home.

As the Appellate Division, First Department later noted in Capasso v Capasso, the "nonremunerated services" performed by a non-titled spouse in the context of ordinary married life, including attending to the home, caring for the children, and being present to give comfort and emotional support, "must be taken into account not because, they have a measurable value in dollars and cents, but because marriage being a joint enterprise' (Price v. Price, supra., at 14), they are presumed to give the titled spouse the time to devote to financial endeavors" (Capasso, 129 AD2d at 281). In this case, it is undisputed that plaintiff was able to devote a great deal of time to financial endeavors. Thus, the inquiry here must then focus on the extent to which defendant assumed what might be called the family's "domestic duties," an assumption of duties that allowed plaintiff in turn the ability to pursue economic success.

Throughout the trial, plaintiff took the position that even though defendant did not work outside the home and was very much a "stay-at-home mom," her contributions on the domestic front were ultimately quite limited. Central to this position was the notion that it was not defendant who performed the household or family tasks - be it cooking, cleaning, child care, or removing the plastic from the dry cleaning. Instead, according to plaintiff, defendant outsourced [*7]most domestic chores to a retinue of hired assistants who did what he believes defendant should have been doing herself, and in lieu of preparing meals had the family eat out or order in from restaurants.

Plaintiff elicited testimony from the family's former nanny and defendant in the hopes of showing that throughout the marriage, defendant overutilized her domestic help and underutilized her kitchen facilities. But while the evidence may have demonstrated that defendant often relied on household assistants, especially as the family grew more prosperous, and seldom prepared meals herself, it cannot be said that this alone is of any real significance in terms of equitable distribution. After all, it is practically the norm for families such as this, firmly ensconced in the upper echelon of the social and economic strata, to hire people to do the work that people of lesser means might ordinarily do themselves. As F. Scott Fitzgerald once said, "the rich are different from you and me." He might have added: "they have servants."

The evidence shows that the parties had a very specific understanding of the role each would play in the life of the Sykes family. From the very beginning of their relationship, it was agreed that plaintiff's role was to be a money-maker and a star in the financial world, while defendant's role was to be a homemaker and mother. Defendant convincingly described this arrangement when she testified:

Well, as I remember it, it was - it was - he said to me "We're going to divide and conquer," meaning that we would divide responsibilities and succeed as a couple. And he was the one to go out and, you know, fight in the caverns of Wall Street and I would be the one, you know, taking care, of the home and things like this.

Later in the trial, defendant elaborated on the "divide and conquer" theme when she explained:

My husband always said that he wanted us - he wanted to be the one that would be in charge of the money and working, slaying the dragons on Wall Street; and I would be the one in charge of the home, the family, our son, anything else. He also said he liked to keep his home life separate from his work life because he really wanted space where he relaxed and just would calm down, because there were so many stresses with his job. And that was my job, to make sure when he came home he could be rejuvenated and go back out and slay the dragons on Wall Street.

It can be argued that the role defendant assumed was in many ways retrogressive, hearkening as it does back to the days when it was believed that "a woman's place is in the home." It may have also been one of the root causes of defendant's own unhappiness, leaving her without a real identity or sense of purpose. But it cannot be denied that, in assuming that role, defendant was doing exactly what plaintiff wanted her to do. Thus, it is disingenuous for plaintiff to now seek to denigrate the value of the part defendant played in what was ultimately a successful plan, at least in terms of financial gain, to divide responsibilities and prosper.

It is equally disingenuous to fault defendant for utilizing domestic help. Like a latter-day Cora Crawley, Countess of Grantham, who unquestionably runs the household at Downton Abbey despite the presence of Mr. Carson, Mrs. Hughes, Mrs. Patmore and Daisy, defendant unquestionably ran the Sykes household in New York, East Hampton and Paris despite the [*8]presence of cooks, personal assistants and the person who unsheathed the dry cleaning. Moreover, the evidence clearly establishes that even though the couple's child almost always had a nanny, it was defendant who oversaw, and was intimately involved in, every aspect of the child's life. On the witness stand, plaintiff readily acknowledged that he could go to work each day confident in the knowledge that his son was being well cared for.

Because of defendant's assumption of the duties related to running the couple's household and caring for their child, plaintiff was free to devote his time and attention to his business responsibilities. Because of defendant's emotional support as a spouse and a confidante, plaintiff was aided not only in coping with the "vicissitudes of life outside the home," but in making the decisions to change from one financial firm to another and then finally to go out on his own and start GS Gamma. As a result, defendant is entitled to a greater equitable share of plaintiff's interest in GS Gamma than the five percent he asks me to award her. On the other hand, defendant's contributions, which were strictly indirect and, though significant, were not extraordinary, do not entitle her to the fifty percent she seeks.

Having considered defendant's contributions in the context of relevant reported decisions, both from the First Department and elsewhere, I find that defendant is entitled to thirty percent of plaintiff's interest in GS Gamma. Since the stipulated value of that interest is $8,000,000, this computes to defendant receiving $2,400,000 as and for her thirty percent equitable share of this particular marital asset.

The Nantucket Timeshare

One of the other marital assets for which equitable distribution has not been agreed upon is the timeshare in Nantucket, Massachusetts. Plaintiff presently owns four intervals, with three having been acquired prior to the marriage and one having been acquired during. The parties apparently agree that the combined value of the intervals is $50,000. Defendant asserts that she is entitled to fifty percent of the value of all four intervals, or $25,000. I find, however, that she failed to demonstrate an equitable interest in the three pre-marriage units, which constitute plaintiff's separate property. Accordingly, defendant is awarded $6,250 as and for her fifty percent share of the one interval of the Nantucket Timeshare that was acquired during the marriage.

Imputed Interest on Funds Used by Plaintiff to Purchase His Home

In April 2011, plaintiff violated the automatic orders put in place by 22 NYCRR 22.16-a by using $3,795,000 of marital funds to purchase a home for himself in Darien, Connecticut. As a result of the violation, defendant moved to hold plaintiff in contempt of court. Although I held that plaintiff's transgression did not warrant a contempt finding, I enjoined plaintiff from making any further unauthorized expenditures and awarded defendant $15,000 in counsel fees (see Sykes v Sykes, 35 Misc 3d 591 [Sup Ct, NY County 2012]).

The money used to purchase the Connecticut property constitutes a marital asset and is being divided equally by the parties. In her post-trial memorandum, however, defendant claims that in addition to her half of the $3,795,000, she should be awarded the interest that would have been earned had the money been invested instead of being diverted for the house purchase. Based on an assumed eight percent rate of return, the interest earned, according to defendant, would amount to $583,910.

Defendant makes an interesting argument. But the claim is raised for the very first time [*9]in the post-trial memorandum, and it was neither addressed in defendant's statement of proposed disposition nor was it the subject of testimony or any evidentiary submission during the course of the trial. Accordingly, there is no basis in the record to award defendant further equitable distribution in the form of imputed interest on the funds plaintiff used to buy the Connecticut property.

A point that should be made, however, with regard to the Connecticut home concerns its liquidity as an asset. One of the reasons I did not take harsher action against defendant for violating the automatic stay is that plaintiff represented that he had enough liquidity to satisfy any award of equitable distribution that might be made in defendant's favor, even with the diversion of the $3,795,000. Plaintiff will be held to that representation. Accordingly, if he lacks the cash needed to satisfy the award, he will be expected to refinance the property so as to have its full value available in liquid funds.

The amount and duration of maintenance is another hotly contested issue in this case. Indeed, by the end of the trial, the parties' respective positions on maintenance were even further apart than their positions with regard to distribution of plaintiff's interest in GS Gamma. Defendant, as set forth in her post-trial brief, asserts that she is entitled to a lifetime maintenance award of $1,152,844 per year. Plaintiff, on the other hand, argues that defendant should get no maintenance at all.

As with equitable distribution, an award of maintenance must be made with consideration given, both individually and collectively, to a list of 20 factors enumerated in DRL § 236B(6)(a). While considering all of the factors, I will discuss, as I did in deciding equitable distribution, only those that are particularly relevant to the facts presented by this case, as well as the statute's directive that a "court may order maintenance in such amount as justice requires, having regard for the standard of living of the parties established during the marriage" (DRL § 236B[6][a]).

Standard of Living

Each side puts forth a particular factor or consideration that he or she suggests should be viewed as more determinative than the others. A great deal of the testimony defendant adduced at trial and a large part of her post-trial memorandum were devoted to demonstrating that the parties had an exceptionally high standard of living during the marriage. Defendant succeeded in proving that certainly during the last few years of the marriage, when plaintiff was earning considerable sums of money, the couple spent freely without having to give finances much of a thought. This translated to luxury apartments, extended vacations, large household staffs, and clothes and accessories purchased from some of the finest stores in the world.

The amount the parties spent was detailed in the report submitted and testimony given by her lifestyle expert, Michelle Smith of Smith FSG. Plaintiff questions Ms. Smith's findings because she considered only the years in which plaintiff was making huge sums of money and did not consider earlier years when plaintiff was earning far less and the family, in turn, was spending far less. This argument would be more persuasive if the high earning/high spending years were somehow isolated blips on the radar rather than the steady, consistent progression here, or at least long enough to constitute the rule instead of the exception.

Plaintiff relies heavily on Justice Rosalyn Richter's post-trial decision in Hearst v Hearst, 15 Misc 3d 1105(A) (Sup Ct, NY County 2007). There, the court, in rejecting the wife's claim [*10]for a maintenance award of nearly $90,000 per month, found that the wife, by introducing historical spending records for only the last three years of a 16 year marriage, had attempted to create the false impression that the extraordinarily high-level of spending she exhibited during that three-year period was indicative of the marriage as a whole.

There are significant differences, however, from the situation in Hearst and that presented here. The husband in that case was the grandson of William Randolph Hearst and an heir to the family's fortune. As such, he was already extremely rich when, at 56 years of age, he married the wife. What concerned Justice Richter, then, had nothing to do with change in household income, since there was none. Rather, her concern was with the fact that the wife, in the years immediately preceding the separation and after the husband had become homebound, embarked on a spree of traveling, dining out and purchasing real estate. Thus, the wife's expenditures during the three-year period, which were solely for her benefit and did not involve the husband, were in no way reflective of the marital lifestyle she had shared with the husband.

Here, there is no evidence that defendant increased her spending with the intention of creating a false impression of the marital standard of living. Nor is there anything to indicate that the expenses described by Ms. Smith, at least those incurred prior to the parties' separation, were terribly anomalous from the parties' overall expenditures once they attained the degree of financial success that defined the marriage. What I do find to be problematic, however, is taking certain expenses that the parties incurred consistent with their lifestyle as a marital unit and then projecting them forward as expenses that defendant can reasonably be expected to incur on her own.

One category of expenses which would seem to be far less compelling now that defendant is no longer sharing a lifestyle with plaintiff is that of household help. As discussed in connection with equitable distribution, household help was a necessary component in defendant's role of tending to the home as part of their "divide and conquer" approach to life. Once the marriage ended, and "divide and conquer" ceased to exist, there remained little reason for defendant to continue to employ the same retinue of housekeepers, personal assistants and nannies, especially since the household consists of only defendant, who does not work or devote her time to any readily identifiable endeavor, and a child who is old enough to no longer need full-time care. As a result, I cannot find that household help, for the household as it now exists, constitutes nearly as great an expense as defendant claims it to be.

Travel, too, is an area where the level of expenditure that characterized the marriage when the parties were together does not translate to a comparable level for defendant post-marriage. One of the reasons the parties spent so much on travel when they were married was that they would frequently go to Europe, and especially France, for long stays in luxury hotels. Defendant, of course, is now living in France, which eliminates or significantly reduces much of the cost of European travel. In terms of intercontinental travel, the major expense now is transporting the parties' son, often accompanied by defendant's family members, between France and the United States so that he can spend time with his father. This is an expense that plaintiff bears alone.

An additional cause for concern, albeit one that is somewhat more speculative, is the prospect that defendant's increased overall spending during the years analyzed by Ms. Smith, years which coincide with the deterioration and eventual end of the marriage, was in part a response to her overall unhappiness. Plaintiff's testimony, which was highly credible in this [*11]instance, portrayed a marriage that became increasingly conflicted at the same time the parties became ever more prosperous. The reasons for this are probably impossible to ascertain, at least in the context of a financial trial, but they seem to include defendant's feeling that she and plaintiff were no longer well matched, that they had different aspirations as a couple, and that plaintiff no longer wanted to be married to her. There was also friction in the marriage over plaintiff's strong desire to have more children and defendant's ambivalence on the issue.

With defendant feeling that she and plaintiff had grown apart, "divide and conquer" ceased to be the defining role her life. Without that role, and with neither a career nor a dedication to a cause or an interest - other than perhaps a professed passion for French arts - to take its place, shopping became something to fill the void.

Defendant began her post-trial memorandum by quoting the birthday card plaintiff gave her on her 42nd birthday, a card which bears the inscription, "Every year with you is a GIFT which is beyond anything material I can give you. I love you." (Emphasis in original). Instead of being seen as a heartwarming expression of affection, the inscription is unequivocally heartbreaking - and frankly, bewildering - knowing that only 20 days later plaintiff would call defendant from New York to unilaterally declare the marriage over. But what is also sad, and strangely symbolic, is that the card states that it "entitles" defendant to a "shopping spree" in a city of her choice. Thus, the last birthday present that plaintiff ever gave defendant was not something meaningful that he picked for her; instead it was just another opportunity for her to go shopping.

Because the marriage came to such an abrupt end, defendant was never able to redeem her birthday card for the promised "shopping spree." Instead, defendant, understandably reeling from the commencement of the divorce and being left alone with her son in Paris, spent even more on herself, thus resulting in an even greater spike in personal expenditures. As Ms. Smith testified, it is common for people in defendant's situation to engage in "retail therapy," and "go out and spend money on something that makes them feel better."

It strikes me that defendant was indeed engaging in the kind of "retail therapy" described by Ms. Smith on certain occasions during the post-commencement period. How else does one account for an otherwise seemingly modest and restrained person like defendant spending $1,500 on two Hermes towels while on a four-hour layover in the Dubai airport, especially after having spent almost $5,000 on towels at Hermes in Paris just a few weeks before? Or else, how does one explain defendant spending approximately $85,000 - reduced from $110,000 after the return of some of the fur coats purchased - on personal items for herself during a very short period in December 2012?

None of the discussion of defendant's spending is intended to be judgmental in any way; I fully recognize that many people in the Sykes's income bracket spend a tremendous amount of money on themselves. The purpose of the discussion is to ascertain what expenditures defendant will have to make in order to maintain, post-divorce, a standard of living comparable to the one she enjoyed during the marriage. And although I agree with defendant that it is appropriate to look to the spending levels exhibited by the couple during the high-income years, as opposed to all the years of the marriage, I cannot find that those same spending levels, particularly where household help and travel is concerned, should be carried over in their entirety post-divorce. Similarly, I cannot find that defendant's personal spending during the period immediately [*12]preceding and following the commencement of divorce, spending which exhibited situational increases attributable to the stresses occasioned by the deterioration and demise of the marriage, is a fair indication of what defendant will spend on herself post-divorce.

Ms. Smith concluded that $1,155,521 is the level of annual spending by defendant and the parties' son which appropriately reflects the standard of living established during the marriage. From this figure, she deducted the $68,394 in child support add-ons that plaintiff pays directly to third parties on behalf of the parties' son to arrive at an adjusted figure of $1,087,127. Ms. Smith then deducted an additional $220,119 from the adjusted figure to account for the spending levels she attributed solely to the needs of the son. The resultant figure, which is what defendant contends represents her level of spending and is the amount that she requires to meet her needs alone, is $867,008 per year.

Having subjected defendant's assertions concerning her standard of living to the analysis described above, and having considered the report and testimony of Ms. Smith and the report of plaintiff's expert, ParenteBeard, I find that defendant's annual spending figure for herself of $867,008 must be reduced by thirty percent. This results in a figure of $606,905, which I believe more accurately reflects the amount defendant would spend on herself post-divorce in order to continue a reasonable approximation of the marital standard of living. The $606,905 figure, in conjunction with the other statutory factors, will be used to calculate what amount plaintiff must pay to defendant for spousal maintenance.

The Equitable Distribution Award and Resultant Income

Two other relevant factors for awarding maintenance, and the two that plaintiff alleges are most determinative here, are DRL § 236B(6)(a)(1) and (15). Factor (1) requires the court to consider "the income and property of the respective parties including marital property distributed pursuant to subdivision five of this part." Factor (15) simply requires the court to consider "the equitable distribution of marital property." In this case, the amount of equitable distribution being awarded to defendant and the income that the award will generate will significantly impact both the amount and duration of maintenance to which she is entitled.

Although, for reasons discussed in the last section of this decision, I cannot ascertain the exact amount defendant is receiving through equitable distribution, I can approximate a reasonable estimate of that sum. That figure, which encompasses the $2,400,000 that defendant is being awarded as her equitable share of plaintiff's interest in GS Gamma and considers the reapportionment of counsel fees described later, comes to approximately $11,500,000, the majority of which will be in liquid assets.

The equitable distribution award is relevant in two ways. First, it must be evaluated in terms of its potential for investment and ability to produce an income stream that defendant can use to meet her expenses. Second, it can be seen as a supply of funds that defendant can access by "invading the principal" to again meet her expenses. Because of the magnitude of the distributive award that defendant will receive, equitable distribution plays an even greater role here than it might in cases where the awards are far more modest.

At the outset, it should be said that defendant is correct in stating that a distributive award, even one large enough to make her self-supporting by most definitions, does not preclude an award of maintenance where the pre-divorce standard of living is equally high (see Hartog v Hartog,85 NY2d 36 [1995] Kohl v Kohl,24 AD3d 219 [1st Dept 2005]). Thus, in cases [*13]involving lavish or luxurious standards of living, even lifetime maintenance may be appropriate despite a substantial award of equitable distribution (see e.g., Bayer v Bayer, 80 AD3d 492 [1st Dept 2011] Konigsberg v Konigsberg, 3 AD3d 330 [1st Dept 2004]).

With regard to the income defendant can expect to receive through the investment of her approximately $11,500,000 distributive award, it is defendant's position that a pre-tax rate of return of 5.3% and, using French tax rates, an after-tax rate of return of 2.6% is the most she can hope to attain. The application of these rates, as taken from the rate of return analysis of her own expert, BST Valuation and Litigation Advisors, applied to the $11,500,000 figure, would result in pre-tax annual income to defendant of $609,500 and in after-tax income of $299,000.

In arriving at the 5.3% pre-tax rate, defendant's expert was clearly constrained by an overriding concern that the principal not be exposed to even the most minimal risk and that none of it be expended for any purpose. This resulted in a rate of return analysis that utilizes only highly rated corporate bonds, one of the safest and most conservative investments one can make. This might make sense if the situation was one where defendant had only a limited amount of money and the loss of any of it would have dire consequences. That, of course, is not the case: defendant is young enough at 45 to live through the inevitable ups and downs of the market and still prosper, and she has the sum of $11,500,000 to work with. It is unrealistic to expect that someone in her position would be advised to sit on this sum and not invest at least a limited portion of it in something with far greater potential returns than corporate bonds, be it stocks, real estate, or even a hedge fund. Indeed, with the amount of money available to her, defendant has access to the type of investment opportunities that few other people are lucky enough to have.

BST's report and testimony in support of the report also hinge on the assumption that defendant will forever live in Paris and forever pay French tax. As a result, the 5.3% pre-tax rate of return was more than halved to a 2.6% post-tax return rate. Additionally, her residence in France precludes her from taking advantage of investing in tax-free municipal or U.S. Treasury bonds. As defendant's French tax expert, Bernard Hinfray, testified, everything is taxed, and taxed heavily, in France.

At this point, I will simply state that the French tax considerations, when coupled with an insistence on investments that are completely risk-free, have resulted in defendant's expert's unconvincingly low prediction of what defendant can expect to realize on her approximately $11,500,000 of investable assets. At the same time, I cannot accept the prediction by plaintiff's expert, ParenteBeard, that defendant will realize a pre-tax rate of return of 8% per annum on those assets. Although I agree that she should be expected to have a higher rate of return with an expertly managed diversified portfolio, the 8% rate does not account for managerial fees and apparently assumes that the interest and dividends will be reinvested. Naturally, reinvestment should not be part of the equation since it is expected that defendant will use whatever money is generated to help fund her lifestyle.

In reaching what I believe is a more realistic pre-tax rate of return, I am guided by Justice Richter's decision in Hearst. There, the wife had approximately $8,000,000 of her own assets. In determining the amount and duration of the maintenance award, Justice Richter accepted the wife's expert's opinion that 6% was the estimated expected pre-tax rate of return. Although Hearst was decided in 2007, prior to the cataclysmic upheaval that wracked the financial world and the historically low interest rates that were ushered in as a result, it is difficult to believe that [*14]with the stock market hovering at or near record highs, the same 6% cannot be realized now. Thus, I find the 6% rate to be more appropriate than the slightly lower 5.3% utilized by defendant's expert.

Applying the 6% pre-tax rate to the defendant's $11,500,000 in assets will result in defendant reaping pre-tax income of $690,000 per year. The applicable after-tax rate of return and the actual amount of net after-tax income that defendant can expect to receive depends on whether French or United States tax rates are applied.

With regard to defendant actually spending any of the assets she is receiving through equitable distribution in order to finance her lifestyle, the parties take strikingly divergent positions. Defendant's position is that she should not have to utilize any of the money receives; plaintiff's position is that there is no justification for her being able to retain all that she receives and, in effect, be permitted "to die" with the approximately $11,500,000 intact.

Plaintiff's position is the correct one. There is nothing in the law that even suggests that equitable distribution awards are somehow inviolate and that the capital can never be invaded. To the contrary, case law establishes that a distributive award, like any other asset, is to be considered a source of funds upon which a party can draw so as to meet his or her needs, irrespective of the marital lifestyle (see Alexander v Alexander, — AD3d —, 2014 NY Slip Op 02386 [1st Dept 2014][affirming modest award of durational maintenance where distributive award totaled approximately $2,750,000] Grumet v Grumet, 37 AD3d 534 [2d Dept 2007] lv denied, 9 NY3d 818 [2008][reducing amount of lifetime maintenance where trial court "failed to take into account the large distributive award wife will receive"] Kohl v Kohl, 6 Misc 3d 1009[A] [Sup Ct 2004] affd 24 AD3d 219 [1st Dept 2005][denying request for lifetime maintenance by finding that "the wife will have her own assets from which she can draw funds to support herself in a manner similar to the marital lifestyle"]).

The case of Hearst, previously discussed, involved assets that belonged to the wife prior to the divorce, and thus were not obtained through a distributive award. Nevertheless, its analysis is directly on point. In awarding the wife far less maintenance than she sought, Justice Richter wrote:

The wife's papers focus much too narrowly on her expected income and completely ignore her ability to draw from her sizeable assets. The wife cites to no authority for her proposition that she should not have to dip into her plentiful assets. Of course, the maintenance statute expressly requires the Court to not only consider the receiving spouse's income but also her property.

15 Misc 3d 1105(A) at *35.

Although plaintiff is correct that defendant is not entitled to keep her multi-million dollar award of equitable distribution forever, whole and untouched, he cannot expect her to "dip into" it while at the same time seek to have her live off the income it is generating. The two are, to a large extent, mutually exclusive: the greater the utilization of the assets themselves, the less revenue they will produce. Accordingly, a requirement that defendant invade the principal to fund her lifestyle would be appropriate once she can be expected to live off her assets alone and no longer be dependent on maintenance payments from plaintiff.

The Tax Consequences to the Parties

DRL § 236B(6)(a)(14) requires a court to consider the tax consequences to the parties in fashioning a maintenance award. Taxes are even more important in this case than is typical, [*15]mainly due to what I previously referred to as the "French factor." As I have touched on, the tax consequences of defendant continuing to reside in France heavily affect what she would need to receive in maintenance to maintain the marital lifestyle.

The tax impact is felt in a number of ways. One, as previously mentioned, is that the higher French income tax rate will reduce the net income defendant will receive from the investment of the assets that she is awarded as equitable distribution, and it nullifies the benefit she would obtain by investing in tax-free municipal or U.S. Treasury bonds. Another major effect is the tax defendant will have to pay on the maintenance she receives in France will be far greater than what she would pay in this country. Moreover, any and all maintenance defendant receives will be taxed by the French authorities even if I were to provide in this decision that maintenance was to be nontaxable to her and taxable to plaintiff. And perhaps most surprisingly, child support and child support add-ons, which are always nontaxable to the recipient in this country, would be subject to taxation as well under French law. Finally, the corpus of the approximately $11,500,000 in distributed marital property will itself be subject to a luxury tax, even if it were to merely sit in a depository anywhere in the world and earn absolutely no interest.

While it might be argued that France's policy of highly taxing the rich is enlightened and progressive, it would be hard to deny that it is an exceptionally disadvantageous place for somebody in defendant's financial position to reside. And because it is disadvantageous for defendant, it is just as financially disadvantageous for plaintiff inasmuch as the increased costs that come with being taxed as a resident of Paris are costs that she is seeking to impose upon him. In essence, defendant, to counteract the onerous tax consequences resulting from her decision to remain in Paris, is asking plaintiff to contribute several dollars for every one dollar she claims she needs to support herself. This additional financial burden on plaintiff could easily amount to hundreds of thousands of dollars per year.

To be clear, this court does not have the power to determine whether defendant should or should not continue to reside in France; the French courts have assumed jurisdiction over all custody and access issues, and they have authorized defendant to continue living there with the parties' child. What I am empowered to decide is whether plaintiff should have to fund defendant's choice to live in France by being made to pay far more than he would have to pay if defendant returned to the comparatively low-tax world of life in the United States.

Whether the award of maintenance must reflect the French tax premium hinges on the circumstances surrounding the parties' decision to move to Paris and the reasons for defendant choosing to remain there. Much of the testimony and other evidence adduced at the trial had to do with these decisions. Plaintiff sought to demonstrate that the move to Paris was never intended to be long-term and, at least on his part, was done largely to make defendant happy by affording her the opportunity to live for a while in a city she professed to love. Plaintiff also attempted to show that following the separation, the parties made plans for defendant to return to live in New York with their son but that she abruptly changed her mind and decided to remain in France. Defendant, on the other hand, sought to prove that the move to Paris was mutually intended to be a long-term relocation, that she never agreed to return to New York, and that she and the child have established a life in France that they should be able to maintain, whatever the additional costs.

I find that the move to Paris was what plaintiff portrayed it to be: a short-term experiment [*16]to see if the couple could be happier in a city that they had always enjoyed visiting. Plaintiff's testimony was credible that he embarked on the sojourn with the understanding it would be for a few years at most, with the hope that the respite away from New York for a limited time would please defendant, but with misgivings as to how well he could conduct his business from a foreign country. Those misgivings only increased once he attempted to work from Paris and realized that it was necessary to return regularly to New York, especially after investors expressed concern about his absence. Plaintiff's testimony with regard to the short-term nature of the move, his concerns about how the move would affect his business, and the difficulties he encountered attempting to run GS Gamma from Paris was supported by the testimony of Jay Fiacco, plaintiff's second-in-command at the hedge fund. I found Mr. Fiacco to be a very credible witness.

Defendant points to the fact that she was "given" a large decorating fund to use in the restoration and furnishing of the Palais Royale apartment, and that the parties signed a six-year lease for the apartment, as proof that the move was not envisioned by either one of them as being for a few years at most. Her point, however, is muted by the recognition that this was the period during which the family was spending large sums of money, the lease contains a provision allowing for its early termination, and the parties rented another New York apartment where they left much of the furnishings that they had in their San Remo apartment.

Defendant's contention that the move to Paris was to be for many years, if not forever, was unconvincing. I found defendant's testimony to be far less credible than plaintiff's with regard to what the parties collectively intended would be the duration of their Parisian stay when they embarked for Europe. Although defendant stated that it was her understanding that it was to be for a substantial number of years, those statements were somewhat vague and equivocal, as opposed to plaintiff's more definitive statements to the contrary. But even if defendant believed in her own mind that it was to be a more extended stay, she offered nothing to show that plaintiff shared this belief. In fact, in her testimony, she conceded that plaintiff may very well have had a far different view on the matter than she did.

Also undermining defendant's position are the affidavits that she herself submitted to the French court in the custody case. The affidavits, from her father and her good friend, state that when the parties left to live in France it was only for "the next several years" or "until [the child] reached middle school." Similarly, the parties' former full-time nanny testified credibly that defendant told her that the family was moving to France for a year.

The Judgment of the Tribunal De Grande Instance De Paris, dated July 4, 2011, awarded custody of the parties' son to defendant and permitted him to continue living with her in France. Defendant contends that because the French judgment refers to France as the child's "usual place of residence," this somehow is res judicata with regard to the issue of whether the parties' intended to live in France on a long term basis. It is not. The judgment states the following about the parties' intentions: "However, it must be stressed that the decision to live in France for several years is a decision by the couple and a parental choice" (emphasis added). Several years does not constitute long-term and it certainly does not mean permanent. As such, while the judgment might stand for the proposition that the defendant and the child lived in France long enough to make it the child's residence for custody purposes, it actually supports plaintiff's position that the residency was intended to last just several years. [*17]

I also found defendant to be less credible than plaintiff when it came to their differing accounts of the discussions that ensued after plaintiff returned to New York, the marriage came to a crashing end, and parties had to decide the next steps with regard to their child's living situation. I fully credit plaintiff's account of how they informed their son that he and defendant would be returning to New York and that he would most likely be going back to his old school, St. David's on the Upper East Side of Manhattan. Defendant's testimony that she was present for this conversation but did not actually participate in it is unconvincing. The evidence also shows that there was active discussion about securing a new apartment for defendant and the child when resuming life in New York. In any event, whether she reneged on an agreement to return or not, defendant ultimately decided to remain in France with the parties' son.

One can readily understand how defendant might have changed her mind about returning to New York so soon after the breakup. After all, she must have been suffering from tremendous feelings of hurt and humiliation from the way plaintiff abruptly walked away from the marriage, a mere 20 days after the "You are a Gift" birthday card and a week after they celebrated their wedding anniversary. And that pain and humiliation - not to mention anger - must have only intensified once she learned plaintiff was involved with another woman, a woman with whom he would subsequently have two children and move to the Connecticut residence. This was undoubtedly a powerful incentive in the aftermath of the marriage's collapse for defendant to refuse to comply with plaintiff's wish. That is, that she come back to this country with their child so that plaintiff could resume living a life similar to the one he had before - only this time with a new family.

On the other hand, however, it is difficult to understand why defendant has continued to reside in France, now more than three years after the parties' separation, with little to no connection to the city beyond her "love" for it. Having heard the extensive testimony at trial, I can only believe that Paris became a fantasy more than a practical place to call home. In defendant's mind, it was the embodiment of what she referred to during the trial as her "dream" and her "passion," and in both parties' minds it was the magic salve to heal the unhappiness of the marriage.

Once the salve proved to be ineffective and the marriage disintegrated, the only thing left for Paris to offer was defendant's chance to live out her dream. But from what I perceived at trial, it sounded more like defendant and the parties' son were living there in self-imposed exile, without any compelling reason to do so. There was no evidence that defendant was involved to any real extent in Parisian cultural, social or community matters. In fact, there was no indication that she had been integrated into life in France at all; at this late date she still does not speak the language fluently. Illustrative of this phenomenon of living in a place but not really being a part of it is the change that has occurred with regard to the child's school. Where previously he went to the bilingual Lennen School, where half the day was spent speaking French, he now attends the International School, where French is simply a language course taught for 45 minutes per day. This is the same amount of French the child would be speaking each day if he lived in the United States and was taking French in middle school.

The record fails to demonstrate that there was ever a joint decision by the parties to make Paris either their permanent or long-term home. Nor does it show that Paris has become a place where defendant and the parties' son have put down roots so as to make it a forever home. What [*18]it remains, far more than a home, is a dream. And while defendant is entitled to pursue her dream, she is not entitled to have plaintiff pay a premium to finance that dream. Accordingly, the tax consequences considered here will reflect the tax laws and rates of this country and not those of France.

In practical terms, this means that what plaintiff receives as income on the investment of her sizeable award of equitable distribution and what she receives in the form of monthly maintenance will be deemed to be taxed at the rate she would pay if she were living in New York City. That rate, as established by the submissions and testimony of each side's experts, is 45.1%, in contrast to the 54.72% French tax rate. Furthermore, plaintiff will bear no financial responsibility for the French "luxury tax" imposed on defendant's assets, nor will he be responsible in any way for the taxes that defendant is made to pay by the French authorities on the child support payments she receives or the add-on expenses that plaintiff makes to third-party providers such as private schools, tutors, colleges, doctors, therapists, and the like.

Additional Factors

In light of the great weight given to the factors already discussed - the marital standard of living, the implications of the large distributive award, and the tax consequences to the parties - only limited attention need be given to some of the other factors that were raised at trial with regard to the amount and duration of maintenance. The first is DRL § 236B(6)(a)(4), which requires consideration of the "present and future earning capacity of both parties."

Plaintiff makes no assertion that defendant has any present earning capacity. At trial, he did not call a vocational expert to testify or present any other evidence as to this issue. But, as he points out, the issue is moot because so long as defendant chooses to remain in France, she will be barred from doing any kind of work there as a result of her immigration status. It strikes me, however, that should defendant return to the United States, she might be able to, at least to some extent, pursue a career. Not only does she have a Master's degree in decorative arts and experience as an art appraiser and college instructor, but now she will have the distinction of having lived for an extended period of time in Paris, one of the world's epicenters of the decorative and fine arts.

Whatever earning capacity defendant may have in the future, it will be but a minute fraction of plaintiff's earning capacity. Still, there is strong debate between the parties as to what exactly plaintiff's future earning capacity will be. While defendant portrays him as about to join the ranks of J.P. Morgan, George Soros and Warren Buffett, plaintiff depicts himself as teetering on the abyss, always one market correction away from financial ruin.

I confess that even after hearing the days of testimony and pouring over the reams of documents submitted into evidence, it remains difficult to fully understand how plaintiff makes his money. He of course receives a management fee on the assets the fund holds under management (AUM) and an incentive fee on the increase in value of those assets, but his investment choices as they relate to the financial climate, a skill he clearly has honed, are highly complex. It was understood, however, that GS Gamma does best when there is volatility and uncertainty in the equity and mortgage markets, thus making government insured mortgages a safe haven when the financial seas are in turmoil. At one point during the course of the trial, market conditions apparently caused the fund to lose investors, its AUM to plummet, and the value of GS Gamma to decline. In order to buttress the fund and perhaps to instill confidence in [*19]his investors, plaintiff was given permission to take an advance against equitable distribution and put $500,000 of his own money into GS Gamma. But almost as quickly as the fund had its near-death experience, it roared back to regain most of its value, and in fact, by the end of the trial, the AUM reached its highest level ever.

Thus, in order to determine with any accuracy plaintiff's future earnings, I would need to be able to predict such things as mortgage rates and market conditions. Naturally, this is not something I (or probably anyone else) can do with any modicum of certainty. The only realistic way to gauge plaintiff's earning potential is to look to his present and past earnings. Because plaintiff demonstrated at trial that the $13,996,947 total income he reported on his 2012 tax return, the last return filed, is misleading in that it reflects a great deal of income actually earned in prior years, the best mechanism for arriving at a fair assessment of plaintiff's earning is to take a five-year average. Using the years 2008 through 2012, that number arrives at $9,056,990.

To be sure, the maintenance award determined here will be based more on the "needs-based" analysis set forth in the preceding subsections than it will be on plaintiff's income. But it should be noted that the award is being made with the understanding that plaintiff, at least through this decade and hopefully beyond, will continue earning the large sums of money that he presently earns. Thus, a significant unanticipated long-term decrease in plaintiff's income from the $9,056,990 could conceivably be grounds for a downward modification. It should be further noted that because the evidence established that GS Gamma is the type of business whose success is very much tied to plaintiff himself and the efforts he must expend on its behalf, it cannot be expected that the business will continue at the same level forever. As a result, it would not be fair to assume that plaintiff's earning potential, as high as it is, will endure indefinitely.

Another factor, and one that needs only to be mentioned in passing, is DRL § 236B(6)(a)(13), is cited by defendant and involves the need for exceptional additional expenses for a child's schooling and medical treatment. Inasmuch as the child here has some degree of ADHD, defendant contends that this merits consideration in determining the amount of the maintenance award to which she is entitled. The problem with her position, however, is that plaintiff is paying and will continue to pay all of the child's educational, tutoring and medical expenses directly to the providers. Moreover, there was no evidence adduced to show what, if any, special services the child requires or is receiving, and no explanation given as to why, if the child is indeed suffering from a learning disability, it is beneficial for him to be in an international English-speaking school in a country where almost everybody else speaks French.

The final factor, also cited by defendant, is DRL § 236B(6)(a)(19), which requires a court to consider the loss of health insurance benefits upon the dissolution of the marriage. Because she will no longer be eligible for coverage under plaintiff's policy, defendant submits that she will have to buy her own health insurance. This would be a more compelling argument if defendant did not live in France, a civilized nation that believes in universal health care. One of the benefits of living there - and one of the positive byproducts of high taxes on the wealthy - is that people need not worry about having to buy their own insurance to protect them from illness. Should defendant choose to return to this country, where health care is still not a right, then she can seek additional funds from plaintiff for health insurance coverage.

The Maintenance Award

Having fully considered the marital standard of living and the other relevant DRL § [*20]236B(6)(a) factors, I can now determine the amount and duration of the maintenance to be paid by plaintiff. Although the statutory scheme that applies to final maintenance awards, as opposed to the one that applies to temporary maintenance awards, does not require any kind of formulaic mathematical calculation, I will nevertheless utilize some computations as part of the process of arriving at the appropriate amount of maintenance to be awarded. It needs to be emphasized, however, that despite the numbers being utilized appearing as specific as they do, they are still just rough estimates. Thus, if it turns out the figures being plugged into the calculations - starting with the $11,500,000 that I estimate defendant will receive as equitable distribution and $690,000 I estimate she will receive each year as a return on that amount - turn out not to be entirely accurate, the ultimate determination I make as to amount and duration of maintenance will still stand. This is because in the final analysis what is determinative is that the award be fair and equitable.

The first of these computations consists of applying the tax rate that defendant would pay in New York City, 45.1%, to the amount of pre-tax income I have determined she will realize each year from her investment of her distributive award, $690,000. This results in an annual after-tax income stream to defendant of $378,810. Because I previously found that defendant needs $606,905 a year to maintain a standard of living comparable to what she had when she was married to plaintiff, the $378,810 in income needs to be subtracted from the $606,905 in order to determine the shortfall. That amount is $228,095.

The next step is to take the $228,095, which is the amount of cash that defendant needs to supplement her after-tax investment earnings, and subject it to the same tax consideration computation that was applied to defendant's pre-tax investment earnings. By again applying a 45.1% tax rate, it can be concluded that defendant needs an additional $415,474 in annual pre-tax income in order to net the $228,095. Thus, if maintenance were to be determined by computation alone, the figure would be $415,474 per year.

Because "it is well settled that the determination of maintenance is within the sound discretionof Supreme Court upon consideration of the relevant factors enumerated in Domestic Relations Law § 236B(6)(a) and the parties' pre-divorce standard of living" (Alexander v. Alexander, — AD3d —, 2014 NY Slip Op 02386, *1 [1st Dept 2014]), I am not bound by an arithmetical formula or the rote application of the factors. Instead, I am empowered to exercise my discretion to determine what is an appropriate amount of maintenance after considering that which I am required to consider. Having done so, I find that $415,000 is the appropriate sum to be paid by plaintiff to defendant as spousal maintenance on an annual basis. This computes to the sum of $34,583 per month.

The $415,000 maintenance that plaintiff is required to pay will be tax deductible to him. As already explained, even if I made the award non-taxable to defendant and non-tax deductible to plaintiff, the money defendant receives will still be fully taxed by the French authorities. In the event defendant returns to live in the United States, where an award of non-taxable maintenance means that it really is not taxed, I would entertain an application to amend the award so that the $415,000 became non-taxable to her.

Defendant's demand is that she be awarded lifetime maintenance, meaning that she would receive the $415,000 each year until her death or remarriage. That demand is not supported by the law or the facts. Although the evidence at trial demonstrated a lavish pre-divorce standard of [*21]living, that fact alone does not entitle defendant to receive maintenance for life. As our Court of Appeals wrote in 1995 in the oft-cited case of Hartog v Hartog:

[A] high life' standard of living guarantees no per se entitlement to an award to an award of lifetime maintenance. The lower courts must consider the payee spouse's reasonable needs and predivorce standard of living in the context of the other enumerated statutory factors, and then, in their discretion, fashion a fair and equitable maintenance award accordingly.

With the explicit directions of the high court in mind, I have considered the panoply of factors that come into play here and, in my discretion, determine that the duration of the maintenance award shall be eight years. The primary factor to consider in making this determination is the size of the pool of assets that defendant will have at her disposal to utilize as she sees fit. Other considerations are that the parties' child will be out of his teens and presumably well-established at college by that time, that the eight years represents more than fifty percent of the length of the marriage, and that the amount of the award is generous, certainly when compared to reported appellate and trial court decisions.

A final consideration in making maintenance durational for eight years is the amount of temporary support that defendant has received from plaintiff while this case has been pending. At first, defendant was afforded unfettered use of a credit card and access to funds in a joint account. Since March 2013, plaintiff, pursuant to an interim order of this court, has paid defendant $75,000 a month as temporary unallocated spousal and child support. This amount is substantially more than what plaintiff will be required to pay for final maintenance and child support. Additionally, the $75,000 temporary award, which will be reduced to reflect the permanent child support that is being awarded, will continue until the final maintenance award goes into effect. Because for more than a year defendant has received, and will continue to receive for at least a few more months, temporary maintenance in excess of what she is now being awarded as final maintenance, she will have an additional cash reserve with which to meet her future needs.

Plaintiff's obligation to pay the $415,000 annual maintenance at the rate of $34,583 a month will commence as set forth in the last section of this decision. The eight year duration of the award will run from the first payment until the full 96 monthly payments have been made, unless terminated earlier by operation of law.

If this case involved a family of lesser means, child support would be determined by utilizing a relatively simple mathematical formula. In a case with one child, such as this, the formula would entail taking 17% of the adjusted combined parental income and then proportioning that amount between the parties based on their respective incomes (DRL § 240[1-b]). The amount of income to be used would almost always be capped at $141,000 (DRL § 240[1-b][c] see New York State Division of Child Support Enforcement, http://newyorkchildsupport.com/child_support_standards.html [last visited May 2, 2014]). Thus, if the cap were to be applied in this case, plaintiff's basic child support obligation would be $23,120 a year, or $1,927 a month. [*22]

Obviously, child support of $23,120 a year is not appropriate here, and plaintiff does not for a minute suggest as much. In his post-trial memorandum, he submits that he should pay annual basic child support of $68,000 annually, in addition to 100% of the child's add-on expenses. Defendant, on the other hand, demands plaintiff pay, in addition to the add-ons, the staggering sum of $637,175 a year in basic child support. Apparently this figure, which would surpass any child support award that I have ever seen, even in cases involving people wealthier than the Sykes, is based on the child's purported "essential needs" of $220,119, plus an additional premium of $417,056 to cover the cost of the French taxes that defendant would have to pay on the child support.

Defendant's request for the $637,175 child support, which computes to $53,098 a month, is inappropriate for two reasons. First, the purported "essential needs" of the child are out of line with what a 12 year-old boy, even one who has lived the financially exalted life that the parties' child has lived, can reasonably be expected to have. For instance, defendant submits that the child's travel expenses amount to $95,223 per year; yet the trial record clearly establishes that the overwhelming majority of the son's travel now is to and from the United States for plaintiff's parenting time, travel that is paid for fully and directly by plaintiff. Similarly unwarranted are large sums attributed to him each year for cooks and housekeepers, as well as $14,297 for transportation in and around Paris.

Second, the request is so far removed from what is reasonable because defendant insists on holding plaintiff responsible for the taxes that she will be assessed on child support. It bears repeating that if defendant resided anywhere in the United States, she would have absolutely no tax liability whatsoever on basic child support paid to her or on the child support add-ons paid to others on behalf of the child. In France, as we have seen, any and all child support payments are taxable to the custodial parent. Once again, it must be said that if defendant wishes to continue living in France, which is indeed her choice, she cannot expect to have plaintiff incur the monumental expense attributed to French tax that is inherent in that choice.

Instead it is appropriate to use a cap of $600,000, something that is clearly in the power of a court to do under the circumstances presented here, to determine the appropriate amount of direct support required to meet the child's reasonable needs (Cassano v Cassano, 85 NY2d 649, 655 [1995]). Applying the 17% to the enhanced cap, annual child support is determined to be $102,000 a year, or $8,500 a month. Plaintiff agrees that instead of support terminating when the child turns 21, it will continue until the child turns 22 or otherwise completes a course of study at a four-year college.

As stated previously, plaintiff has routinely paid every one of the child's add-on expenses. He will continue to do so. The add-ons will include all private school tuition and school expenses; all college tuition, room, board and additional college expenses; extracurricular activities; tutoring; therapy; camp; and, to the extent they are not covered by the French national health system or American private health insurance, all medical and dental expenses. Thus, the most significant of the child's expenses will be paid by plaintiff directly to the providers of the goods and services.

With plaintiff fully meeting the child's needs by way of the $8,500 per month basic support payment to defendant and the payment of all add-ons, none of the child's expenses will fall on defendant. Thus, everything that defendant receives by way of maintenance, equitable [*23]distribution, and earned or investment income will be available to meet her needs and her needs alone.

COUNSEL AND EXPERT FEES

It would be an understatement to say that litigation fees, particularly counsel fees, have loomed large in this case. Indeed, they often took center stage in the proceedings. Naturally, the papers submitted on the issue of fees are extensive and thorough. Regrettably, their tone is even harsher and shriller than the post-trial briefs.

During the course of the trial, I granted plaintiff's motion to relieve him from continuing to pay all the bills for defendant's legal and expert services as they became due. In the decision, Sykes v. Sykes, 41 Misc 3d 1061 (Sup Ct, NY County 2013), I directed that each side be given a $1,000,000 advance from equitable distribution to pay for his or her own litigation fees. I provided in the decision that the disbursement was subject to reallocation at the conclusion of trial. By these means, the parties would be given the opportunity, once the case was fully heard and the merits determined, to show that the fees he or she paid out of that money should have been paid by the other party.

Plaintiff does not challenge the allocation. Defendant does. She argues that not only should plaintiff reimburse her for the $1,000,000 she paid in fees using the advance on her distributive award, but that he should be ordered to pay the approximately $200,000 in further counsel and expert fees for which she has been billed and has yet to pay. In seeking this relief, defendant's application is two-fold: first, she seeks to charge plaintiff for the fees she paid from her $1,000,000 advance; and second, seeks an order directing plaintiff to pay all of her outstanding bills.

Plaintiff strongly opposes both requests. In so doing, he argues that defendant glosses over the fact that from the beginning of the case until May 2013 plaintiff paid all of defendant's litigation costs in addition to his own fees. During that period, the amount he paid on behalf of defendant totaled nearly $750,000. Thus, according to plaintiff, defendant has sought to paint an inaccurate portrait, one in which plaintiff has used his income and resources to fund his case while leaving defendant to helplessly fend for herself. In actuality, he has paid a substantial portion of defendant's fees throughout the course of this protracted litigation.

Plaintiff also notes that defendant has retained a significantly more expensive litigation team than he has. During the period in question, May 2013, when plaintiff stopped paying defendant's fees, through February 2014, when the fee application was made, plaintiff's attorneys billed $612,900. Defendant's attorneys, however, billed $932,929. This computes to a billing differential of 52%. The explanation for this has less to do with the scope of the work done during that period and more to do with the higher hourly rates of the defendant's attorneys. As plaintiff sets forth in his opposition to the fee application, whereas his attorneys have not raised their hourly rates since the commencement of the case, defendants have raised theirs each year, with one member of the team's rates almost doubling.

When, in October 2013, I rendered my decision on interim counsel fees, I expressed my concern that defendant, who was having every cent of her fees paid for by plaintiff from his separate property, had insufficient incentive to limit the scope and cost of the litigation. I also was concerned that although both sides agreed that defendant would receive at least $10,000,000 [*24]in equitable distribution and had been receiving $75,000 a month in temporary support, she was being treated as if she was penniless when it came to contributing to her own litigation expenses simply because plaintiff was considered to be the monied spouse.

In an attempt to rectify what I saw to be an unfair and problematic situation, I employed a term that I had often heard from members of the matrimonial bar, including the attorneys involved in this case. The term, which at this point I fear may very well end up being inscribed on my gravestone, is "skin in the game." With the goal of having both parties proceed with a financial stake in the litigation, I required defendant to use a portion of her wealth - in the form of her equitable distribution award - to fund her litigation from May 2013 onward. As a result, I ordered the disbursement to each side of the $1,000,000 from the marital accounts.

I would like to think that what I decided in the interim fee decision had a beneficial effect on the course and scope of the litigation. Although it did not prompt a full settlement of the matter, it did narrow the issues when the parties agreed on the value of GS Gamma and to other valuations and divisions of marital property. Even more importantly, the trial concluded sooner than expected, with the large witness lists pared down to the essentials. This was not only a major victory for judicial economy, but it undoubtedly prevent already astronomical counsel fees from becoming even more so.

In ordering the release of funds to allow each side to pay his or her litigation costs, I left open the possibility of the parties having the award reevaluated once the trial was completed. An interim fee award, which by definition is made pre-trial, or as was the case here, mid-trial, requires a good deal of prognostication as to what might happen in that trial. A final fee award - which comes after the action is concluded, all the evidence presented and a decision rendered as to the issues that were tried - is made from an entirely different and far more omniscient vantage point. Hence, the provision in the decision allowing for the possibility of reallocation.

The long-established guide for how a court should determine a fee award is found in the Court of Appeals decision in DeCabrera v Cabrera-Rosette, 70 NY2d 879 (1987). There, the court issued these instructions: "In exercising its discretionary power to award counsel fees, a court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions" (id. at 881).

With regard to the "relative merits of the parties' positions," the findings I have set forth above on the various financial issues presented for trial demonstrate that they varied from issue to issue. Defendant's position was certainly the stronger one on the issue of her equitable share in GS Gamma, with my awarding her a thirty percent interest over plaintiff's assertion that she was entitled to no more than five percent. Similarly, I awarded defendant a substantial amount of durational maintenance when, during and after trial, plaintiff advocated that she not be awarded anything. The opposite was true, though, when it came to child support and the tax consequences that come along with defendant's voluntary decision to remain in France; on those issues I sided almost completely with plaintiff.

The trial firmly established the "financial circumstances of both parties," namely that plaintiff will almost certainly end up wealthier than defendant because he will continue to work and make money, but defendant will still be incredibly wealthy in her own right for the rest of her life. What is somewhat disconcerting is that despite the expectation of an equitable distribution [*25]award of at least $10,000,000 (now even greater), defendant, in her fee application, consistently refers to how financially difficult life will be for her.

What is even more disconcerting is how defendant, both in her fee application and post-trial memorandum, repeatedly seeks to summon up images of the parties' son being deprived of the financial wherewithal he requires in order to grow up healthy and happy. In effect, she is arguing that requiring her to be responsible for any portion of her litigation costs will be taking food out of her child's mouth. Nothing could be further from the truth. Plaintiff has consistently met, and will continue to meet, every need of the child through basic child support to defendant and by paying 100% of every conceivable child support add-on. If the child has any difficulties in life, they certainly will not be due to a lack of money.

Both parties devote large passages of their fee application papers to attempt to demonstrate that the other side failed to negotiate in good faith or acted in a way that intentionally prolonged the litigation. The record does not show this to be the case. Even though it may have helped matters if plaintiff's lead counsel could have been more cordial to defendant's lead counsel, the parties did engage in meaningful settlement discussions. In fact, plaintiff's settlement offers with regard to maintenance, both as to amount and duration, and to basic child support were far higher than what he advocated for in his post-trial brief, and they were more in line with what was ultimately awarded than anything defendant ever indicated she would accept. In the final analysis, much of the inability to resolve the matter was attributable to the difficult and emotional issue of defendant residing in France. Because so much was dependent on this, particularly in terms of the effect it had on defendant's demand for maintenance and child support, resolution by the parties was never possible.

One persuasive argument defendant makes is that plaintiff only conceded that his units in Guggenheim Partners and his Credit Suisse IRA were marital property, and thus subject to equal division, after the trial concluded. This required defendant to expend legal and expert fees in connection with matters that should not have been at issue in the first place. In the same vein, when plaintiff moved to have funds released to pay each side's litigation costs, he also sought to have the valuation date for GS Gamma changed from date of commencement to date of trial. By the time the motion was argued, but not before defendant was required to submit voluminous papers in opposition, market conditions had changed and plaintiff withdrew his request. As a result, defendant had to again utilize her lawyers' time on something that turned out to be unnecessary.

Having now had the advantage of viewing all of the "circumstances of the case" from the perspective of having conducted the trial and determined the issues, I conclude that plaintiff should be responsible for an additional $400,000 of defendant's litigation fees. This is in addition to the approximately $750,000 that plaintiff has already paid. In making this determination, which will result in a total payment of $1,150,000 by plaintiff for defendant's counsel and expert fees, I am persuaded that even though defendant can well afford to shoulder much of the burden of her own litigation costs, plaintiff, for the various reasons discussed, should nevertheless pay a larger share.

Because the $1,000,000 defendant applied to litigation costs is money she would have otherwise received as a part of her equitable distribution award, she is now entitled to a credit in the sum of $400,000 to reflect the reallocation that has been made in her favor. Accordingly, she [*26]will be responsible for only $600,000 of the $1,000,000 in fees that she previously paid. She will also be responsible for the additional $200,000 in fees that she asserts are still outstanding, as well as all other fees that are subsequently incurred.

To review, defendant will be entitled to receive the following as the result of the awards made in this decision: 1) $2,400,000 as her distributive share in GS Gamma; 2) $6,250 as her distributive share in the Nantucket Timeshare; 3) Eight years of maintenance at the rate of $415,000 per year; 4) Child support at the rate of $102,000 per year, in addition to the payment by plaintiff of 100% of all child support add-ons; and 5) An adjustment in her favor of $400,000 of the total amount she receives in satisfaction of her claims for equitable distribution, with said adjustment representing reallocation of the interim counsel fee award. This last section will be devoted to briefly setting out the way the awards are to be implemented.

Each side has annexed to their respective post-trial briefs a chart outlining how various assets are to be applied towards achieving the overall formula for the division of the parties' marital assets. The major difference between their charts is the percent of GS Gamma to which defendant is entitled. Both charts must be adjusted to reflect the thirty percent share, which computes to $2,400,000, that defendant will actually receive. Both charts will also have to be adjusted to reflect the reallocation of the interim counsel fee award resulting in the $400,000 credit to defendant. Defendant's chart must be adjusted to reflect that her interest in the Nantucket Timeshare is only $6,250, and the credit to her for imputed interest on the Connecticut property must be removed. The $100,000 credit given for furniture in the Paris apartment must be removed from plaintiff's chart inasmuch as no evidence was submitted with regard to the value of such furniture.

The parties are directed to attempt to reconcile any differences that remain with regard to their equitable distribution charts after they are amended to reflect the determinations that have been made in this decision. If they are unable to do so, they are to submit new charts with explanatory affirmations when they settle their proposed judgments and findings of fact.

It is expected that plaintiff will take all steps necessary in order to effectuate without undue delay the awards made herein to defendant. It was only post-trial that plaintiff gave any indication of lacking sufficient liquidity to satisfy any award to defendant. Consequently, plaintiff must, as previously stated, and if necessary, refinance the Connecticut property and avail himself of any additional financing needed in order to attain the requisite degree of liquidity. The parties are directed to attempt to resolve any issues that may arise concerning that process.

For the month of May 2014, plaintiff is directed to continue making the $75,000 temporary unallocated support payment. As of June 1, 2014, plaintiff is directed to commence paying $8,500 monthly child support to defendant, with said payment representing the monthly sum due each month on the final child support award of $102,000 per year. Plaintiff is further directed to continue paying without interruption all child support add-on expenses as set forth in the decision.

Plaintiff is directed to pay to defendant as of June 1, 2014, and on the first of each month thereafter until the time described below, the sum of $66,500 as adjusted temporary maintenance. This payment will be taxable to defendant and tax deductible by plaintiff.

Because defendant cannot be expected to invest her assets until she actually receives [*27]them, the final maintenance award, which assumes that defendant will be receiving a return on the investments, cannot go into effect until there is sufficient implementation of the equitable distribution award. Accordingly, until the time that at least 75% of the non-real estate (i.e., the house in North Carolina) and non-retirement assets have been transferred to defendant, the final durational maintenance award will remain in abeyance, the eight year durational period will not commence, and plaintiff will be required to pay the $66,500 provided for above.

Though not the subject of any testimony at trial, nor addressed in plaintiff's post-trial brief, it should be understood that plaintiff must provide some form of security, such as life insurance, to protect defendant and the child. The parties are directed to attempt to resolve the method by and the terms upon which this will be done.

The cooperation of counsel is sought to resolve any outstanding matters and to, hopefully, arrive at a proposed judgment that is acceptable to both sides and can be submitted jointly. The parties and the child have lived too long with this case hanging over them. The sooner it can finally be brought to a conclusion by the signing of the judgment of divorce, the better it will be for everyone.

This constitutes the after-trial decision and order of the court.

Settle judgment.

Dated: May 2, 2014

Matthew F. Cooper, J.S.C.