On July 26, 27, 28, and 29, 2021, a nonjury trial was held as to certain issues concerning, inter alia, maintenance, child support, and equitable distribution. The plaintiff initially retained an attorney to represent him in the action, but he eventually terminated the representation and proceeded to trial pro se. The defendant was represented at trial by Marco E. Fava, Esq. The defendant was provided with a Mandarin Chinese interpreter at trial.

After considering the sworn testimony of the parties, the credibility of the witnesses, the documents admitted into evidence, and the parties' written closing statements, the Court makes the following findings of fact and conclusions of law:

The plaintiff commenced this action for divorce on November 18, 2019, upon the filing of a summons with notice and a verified complaint, alleging an irretrievable breakdown of the marriage for a period six months prior to commencement of the action (see Domestic Relations Law [DRL] § 170[7]), and seeking ancillary relief. On March 5, 2020, the defendant served a verified answer, which, inter alia, contained counterclaims seeking a divorce pursuant to DRL § 170(7) and alleging that the plaintiff committed adultery (see DRL § 170[4]).

In a preliminary conference order dated October 22, 2020, it was ordered that the plaintiff would continue to pay to the defendant the amount of $2,000 per month in pendente lite support. In November 2020, Maria Joy Frank, Esq. was appointed as attorney for the parties' [*2]youngest child (hereinafter the AFC). In December 2020, at the plaintiff's request, a guardian ad litem was appointed for the defendant (hereinafter the GAL). At that time, the defendant was not represented by counsel. The plaintiff was directed to pay 100% of the GAL's fees, subject to reallocation at trial.^[FN1] In January 2021, the defendant's current attorney filed a notice of appearance.

On July 21, 2021, the Court conducted an in-camera interview with the parties' youngest child.

A note of issue was filed by the plaintiff on May 24, 2021. Thereafter, in July 2021, the defendant moved by order to show cause, inter alia, pursuant to CPLR § 237(a) for an award of interim counsel fees in the amount of $55,300, and pursuant to 22 NYCRR 130-1.1 to impose sanctions against the plaintiff. The Court denied that branch of the motion which was for an award of interim counsel fees, and reserved decision regarding whether to award final counsel fees at the end of trial.

On September 2, 2021, the Court issued an order approving final compensation for the GAL in the amount of $17,320.

The parties were married in December 2001, and have two children together, ages 19 and 16 at the time of trial (hereinafter the children). During the bulk of the marriage, the parties resided with the children at XXXXXX in New Rochelle (hereinafter the former marital residence), which was purchased in around May 2005.

The plaintiff graduated from Fordham University School of Law and began his career as an attorney at Simpson Thacher & Bartlett, LLP, where he worked from September 1997 through December 2003. The plaintiff then worked at White & Case LLP between January 2004 and December 2014, at its offices located in New York (January 2004 — December 2008), Abu Dhabi (January 2009 — March 2012), and Riyadh (April 2012 — December 2014). In 2013, the defendant moved back to the United States with the parties' children, while the plaintiff remained in Riyadh. The plaintiff moved back to the United States more than one year later and resumed living with the plaintiff and the children at the former marital residence.

In January 2015, the plaintiff began working at Ernst & Young LLP (hereinafter E&Y). The plaintiff's employment was terminated in August 2020, during the Covid-19 pandemic, and he remained unemployed for a period of six months. In February 2021, the plaintiff began working at Ellenoff Grossman & Schole LLP (hereinafter EGS), earning a base salary of $250,000.

The plaintiff filed a statement of net worth (hereinafter SNW) on July 1, 2020, which listed monthly expenses totaling $23,520, and assets as of June 30, 2020, totaling $2,661,690. His assets include four Citibank savings accounts with a total balance of $105,200; two brokerage accounts with a total value of $262,400; the former marital residence with an estimated market value of $409,851; an E&Y 401K with a value of $1,128,000 and a Fidelity IRA with a value of $186,000.

The plaintiff also submitted a copy of a 2019 Form 1040 U.S. Individual Income Tax Return filed by the parties, which listed adjusted gross income in the amount of $568,357, and a copy of the plaintiff's 2019 W2 Form, which listed wages of $525,665. In prior years, the plaintiff earned wages of $535,846 in 2018; $510,860 in 2017; $495,532 in 2016; and, $479,490 in 2015.

The defendant was born in China and her highest level of education is high school. She relocated to the United States in September 2001, and the parties married approximately three months later. For the majority of the marriage, the defendant did not work outside of the home. In 2014, the defendant obtained a real estate license and began working at Century 21. Her real estate license expired two years later.

In February 2021, the defendant filed an SNW, which listed monthly expenses as "unknown" and indicated that she had virtually no assets, other than the former marital residence and a Ford Explorer. On July 26, 2021, the defendant filed an updated SNW, wherein she listed, inter alia, monthly expenses of utilities, $1,357; groceries, $4,000; clothing, $5,200; unreimbursed medical, $641.65; and household help, $500.

During the trial, the parties stipulated, among other things, that they were married for 17 years, 11 months; that the plaintiff was the primary wage earner during the marriage; that the defendant was a homemaker and the children's primary caregiver; that the defendant shall have residential custody of the youngest child, with liberal parental access to the plaintiff; that the defendant "cannot move out of the City of New Rochelle unless there is written consent [of the plaintiff] or court order;" and that the parties' shall share joint legal custody of the youngest child.

At trial, the plaintiff testified that the defendant has exorbitant spending habits, is unable to maintain a budget, and has a history of making false allegations of abuse against him. He asserted that the defendant enjoyed the parties' marital lifestyle in Abu Dhabi, but that his job was later relocated to Riyadh. The plaintiff stated that the defendant was unhappy living in Riyadh, and in around March 2013, barged into his place of employment, confronted the managing partner, and demanded that the plaintiff's job be relocated back to Abu Dhabi. He stated that the defendant and the children returned to the United States shortly later, and that he remained in Riyadh until his assignment was completed in December 2014.

The plaintiff contended that in July 2013, the defendant unilaterally transferred $108,000 from the parties' joint HSBC bank account, into an individual HSBC account. At trial, the plaintiff testified that those funds had been earmarked for the children's education. He claimed that the defendant used those funds toward the purchase of her brother's home, which is also located in New Rochelle. The plaintiff noted that the defendant continued to make lavish purchases, including a Rolex watch and a grand piano. The plaintiff stated that in addition to obtaining her real estate license in late 2014, the defendant also formed several limited liability companies.

The plaintiff testified that when he moved back to the United States in 2015, "the house was very toxic."^[FN2] According to the plaintiff, the defendant announced that the parties would live [*3]together as "roommates" and the defendant began sleeping in a separate room on the third floor. He stated that the defendant was often not home when he returned from work, and that she frequently left the children home alone.

The plaintiff asserted that in November 2019, following a dispute, the defendant called the police, insisted that he needed to be hospitalized, and demanded that he be held for a period of 90 days. The plaintiff stated that he was released from the hospital the next day and soon thereafter commenced this action for divorce. He asserted that he paid off the balance of all of the defendant's credit cards prior to the commencement of this action.

The plaintiff stated that on two occasions, the police were called after the defendant showed up at the paternal grandmother's home, screaming obscenities and causing damage to the front door. He contended that the defendant repeatedly threatened to contact his employer if he did not pay her counsel's retainer fee. The plaintiff stated that in July 2020, the parties' youngest child moved into the paternal grandmother's home because she no longer wished to reside with the defendant. He asserted that in September 2020, the youngest child moved back into the former marital residence after the defendant threatened to report to the school district that the youngest child had a change of address, making her ineligible to attend high school in New Rochelle.

The plaintiff insisted that the defendant's claims of abuse and domestic violence are false and unsubstantiated. At trial, the plaintiff testified that due to the defendant's obstructionist tactics, including failing to appear at numerous conferences and refusing to negotiate in good faith, he incurred over $100,000 in counsel fees, and was forced to discharge his attorney and proceed pro se.

The plaintiff testified that his assets include a 401K with a value of approximately $1.4 million; a Fidelity IRA with a value of approximately $64,000; a few brokerage accounts held at Vanguard and Fidelity, which purportedly include contributions both before and after the marriage; a checking account with a balance "close to zero;"^[FN3] another checking account with a balance of approximately $6,000; and a savings account with a balance of approximately $100,000. The plaintiff testified that after the commencement of this action, he used approximately $150,000 of marital funds to pay down the mortgage on the former marital residence, which has a remaining balance of approximately $250,000.

The defendant testified that upon her graduation from high school, between 1980 and 1989, she worked as a salesperson for a food store in China earning approximately $15 per hour. The defendant then moved to Hong Kong in 1989, and from 1991 to around 1996, she worked in customer service for "Foreign Exchange Investment Company."^[FN4] The defendant testified that she met the plaintiff when he was working in Hong Kong, and then relocated to the United States on a fiancé's visa. The defendant became a United States citizen in 2006.

The defendant testified that the plaintiff worked long hours during the weekday, from around 9:00 a.m. until 10:00 p.m., and most weekends. She stated that the youngest child has been taking piano lessons since she was 5 years old and is a talented pianist. The defendant testified that the expenses listed in her SNW are accurate and reflect the lifestyle enjoyed by her [*4]and the children during the marriage, which included two vacations a year. The defendant denied confronting the plaintiff's former employer when they were residing in Saudi Arabia, but admitted that she withdrew $108,000 in 2013, because she was allegedly being "abused financially."^[FN5] The defendant claimed that she used those funds for living expenses, and that the plaintiff had withdrawn $268,000 from the parties' joint account "leaving behind only the available balance of 48 cents."^[FN6] The defendant denied giving her brother money toward the purchase of a home.

The defendant testified that the credit card debt she incurred after the commencement of this action was for living expenses. She claimed that she borrowed thousands of dollars from family and friends to pay for living expenses, piano lessons, clothing, and food. The defendant stated that the expenses listed on her SNW were copied from a family budget created by the plaintiff. She indicated that she earned income "[o]ne time only" during the marriage, when she received a commission of approximately $4,400 for a "transaction on a house."^[FN7] The defendant stated that she had a real estate license for a period of two years, but that it expired, and that she had made only one sale during her employment at Century 21.

The defendant testified that she speaks conversational English, but is unable to understand "complex conversations."^[FN8] She explained that she uses an app called "WeChat" to translate documents sent to her by her attorney. The defendant stated that she spoke to the children in Chinese and English. She testified that she "fled to the third floor" of the former marital home to escape the plaintiff's abuse.^[FN9]

In a closing statement, the plaintiff stated that the defendant's refusal to settle the case "wastefully deplete[d] resources," forced him to proceed to trial pro se, and will necessarily result in the sale of the former marital residence. He stated that the defendant squandered the $15,000 that he paid to her in September 2020 in interim counsel fees. The plaintiff noted that the defendant had "threatened to blackmail [him]" by stating that she would show up at his former place of employment, E&Y, and demand to speak to the CEO, unless the plaintiff paid additional interim counsel fees. The plaintiff complained that he was required to bear 100% of the carrying charges on the former marital residence and pay the defendant an additional $2,000 per month in interim support. He asserted that although the defendant has lived in the United States for 19 years and "English has always been the sole language spoken in our home," the defendant insisted that a Mandarin interpreter was necessary for this proceeding, "which has added greatly to the length and cost of this matter." The plaintiff argued that the defendant's [*5]monthly expenses listed on her updated SNW are "absurdly inflated" and that her credit card debt in excess of $70,000 was incurred after the commencement of the divorce action, and included charges totaling approximately $10,000 for luxury purchases from Chanel, Burberry, and Best Buy.

The plaintiff stated that the income he earned while employed at EY "is completely irrelevant," since his salary at EGS is less than half of his prior income. He contended that the defendant, who was a licensed real estate agent, is capable of working, though she has made no effort to seek employment. The plaintiff requested the issuance of qualified domestic relations order (hereinafter QDRO) to equitably distribute his 401(K), claiming, however, that 49% of the value of that account is premarital. The plaintiff also requested an order directing that "any adverse tax consequences as a result of an early withdrawal of funds by Defendant be borne entirely by Defendant." With respect to the former marital residence, the plaintiff asserted that he paid the $85,000 down payment from his premarital assets, and that, "prior to any distribution of the net proceeds, the proceeds of a sale first be applied to fully fund the children's 529 accounts." The plaintiff asserted that he made four contributions to his Vanguard account prior to the marriage and that one contribution was made approximately three weeks after the marriage. He also contended that his contributions to a Fidelity brokerage account were premarital, and that most of his contributions to a Fidelity 401(k) account were premarital. The plaintiff stated that the parties should be "equally responsible" for the children's college expenses after their 529 accounts are depleted.

The plaintiff stated that the defendant should be held responsible for her own counsel fees and credit card debt, and should obtain her own medical and dental insurance. The plaintiff requested a credit for his counsel fees "which are largely due to Defendant's outrageous obstruction and delay tactics;" the fees incurred by the GAL after the defendant retained Mr. Fava as counsel; a one-half share of the amount unilaterally withdrawn by the defendant from the parties' joint HSBC bank account in 2013 ($54,000); and the $85,000 down payment toward the former marital residence. The plaintiff also asserted that an award of maintenance and child support should be based on his "current after-tax income."

In a closing statement, the defendant's attorney stated that the defendant is entitled to an award of maintenance in the amount of $3,011.31 per month based on income up to the then statutory cap of $192,000. He contended, however, that the Court should award additional maintenance in excess of the statutory cap based on several factors set forth in DRL § 236(B)(6)(e)(1), including that the defendant was 57 years old at the time of trial, her highest level of education is high school, and she "never participated in the workforce, except for one limited foray into the real estate world." According to the defendant's attorney, the plaintiff's maintenance obligation should be between $15,000 to $20,000 per month, and be either nondurational or until the defendant reaches the age of 65.

With respect to child support, the defendant's attorney argued that the defendant is entitled to an award of child support in the amount of $11,650.91, based on income in excess of the then statutory cap of $154,000, because, among other reasons, the children reside with the defendant, the children enjoyed "a high standard of living," and the defendant requires "educational training." The defendant's attorney further stated that the plaintiff should be responsible for 100% of all statutory add-ons; that the Court should not impose a SUNY cap on the plaintiff's obligation to pay for the children's college expenses; and that the plaintiff should be directed to provide health insurance coverage for the defendant until she reaches the age of 65 [*6]and to maintain life insurance securing his child support obligations. The defendant's attorney asserted that the marital estate should be divided equally, and that the former marital residence should not be sold until the youngest child graduates from high school in June 2023.

In the verified complaint, the plaintiff alleged an irretrievable breakdown of the marriage for a period six months prior to commencement of the action (see DRL § 170[7]), as the sole ground for the divorce, whereas the verified answer contained counterclaims for divorce on the grounds of DRL §§ 170(4) and (7) (see Agulnick v Agulnick, 191 AD3d 12, 19 [2d Dept. 2020] ["(t)he ease and availability of No Fault divorce, based upon an irretrievable breakdown of the marriage for a period of at least six months, has had the practical effect of displacing other grounds that may otherwise have been asserted and litigated in many actions"]).

The plaintiff's sworn testimony that his marriage to the defendant had irretrievably broken down for a period of at least six months was sufficient to establish, as a matter of law, his cause of action for divorce pursuant to DRL § 170(7) (see Johnston v Johnston, 156 AD3d 1181, 1182 [3d Dept. 2017] ["having determined that the husband established irretrievable breakdown pursuant to Domestic Relations Law § 170(7), Supreme Court was under no obligation to grant the wife a judgment of divorce on the ground of adultery or constructive abandonment"]; Matter of Motta v Motta, 145 AD3d 560, 561 [1st Dept. 2016] ["the court was not obligated to grant a judgment of divorce on the ground of cruel and inhuman treatment, and properly granted plaintiff a judgment of divorce on the ground of irreconcilable differences"]). The plaintiff credibly testified that the marital relationship had broken down irretrievably as early as 2015, when the parties began living on separate floors in the former marital residence. The record is replete with instances of antagonism and dysfunction between the parties, as evidenced by, among other things, mutual orders of protection, and accusations of domestic violence. While the defendant alleged that the plaintiff committed adultery on numerous occasions during the marriage, the defendant does not dispute that an irretrievable breakdown in the parties' marital relationship occurred.

Accordingly, the Court grants the plaintiff a divorce on the ground set forth in DRL § 170(7).

Consistent with the parties' stipulation at trial, the parties are awarded joint legal custody of the youngest child, with residential custody to the defendant, on condition that the defendant continues to reside in New Rochelle. Should the defendant wish to reside elsewhere, the defendant must either obtain the plaintiff's written consent or permission from the Court. The plaintiff is awarded liberal parental access with the youngest child, to be arranged between the plaintiff and the youngest child. All communications between the parties concerning the children must be in writing by email.

It is noted that the parties' eldest child is over the age of 18, and cannot be subjected to a [*7]custody order (see Gugliara v Vegas, 170 AD3d 815, 816 [2d Dept. 2019]; Matter of Marisol N.H., 115 AD3d 185, 190 [2d Dept. 2014]).

"The amount and duration of spousal maintenance is an issue generally committed to the sound discretion of the trial court and each case is to be resolved upon its own unique facts and circumstances" (Silvers v Silvers, 197 AD3d 1195, 1199 [2d Dept. 2021]; see Alam v Alam, 168 AD3d 896, 896 [2d Dept. 2019]). "'The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting'" (Sansone v Sansone, 144 AD3d 885, 886 [2d Dept. 2016], quoting Sirgant v Sirgant, 43 AD3d 1034, 1035 [2d Dept. 2007]).

The parties were married for 17 years, 11 months, however, the parties' relationship had been unstable and turbulent for several years prior to the commencement of this action. At the time of trial, the plaintiff was 50 years old and the defendant was 57 years old, and both are in relatively good health. The defendant claimed that she suffers from permanent hearing loss in her right ear and uterine prolapse, however, no medical records were admitted into evidence at trial substantiating her testimony. In addition, there was no evidence that those alleged conditions impacted her ability to work. Rather, the record shows that the defendant enjoyed an active lifestyle, which included various social activities and travel. Although the plaintiff had, at one time, earned income averaging approximately $518,000 for the period between 2015 and 2019, his employment was terminated in August 2020. After a 6-month period of unemployment, the plaintiff started a new job earning a base salary of $250,000, which is substantially less than his past income ^[FN10] . The plaintiff credibly testified that he attempted to obtain commensurate work after his employment was terminated, but was unsuccessful. Under the circumstances, the Court declines to impute income to the plaintiff on the basis of his past income (c.f. Marino v Marino, 183 AD3d 813, 818 [2d Dept. 2020]). Since it is undisputed that the plaintiff's base salary at his last place of employment was $250,000, the Court will apply that amount for purposes of calculating his maintenance and child support obligations (see e.g. Filippazzo v Filippazzo, 121 AD3d 835, 836 [2d Dept. 2014]).

The Court imputes annual income to the defendant in the amount of $31,200, which is based on her ability to work full-time earning minimum wage (see Matter of Remsen v Remsen, 198 AD3d 658, 660 [2d Dept. 2021]; Moffre v Moffre, 29 AD3d 1149, 1151 [3d Dept. 2006]). The record reflects that although the defendant has a high school education and limited work experience, she was able to obtain a real estate license in 2014 and worked briefly during the marriage at Century 21. The defendant testified that during the marriage, she served as a board member for the "Buddhist Foundation," sold jewelry on eBay, and incorporated a business known as "Times Square Global Life, LLC," however, she never intended for it to be income-[*8]producing. It appears that the defendant has made no effort to secure gainful employment, even though she no longer has child-rearing responsibilities given the children's ages, now 17 and 20 (c.f. Warshaw v Warshaw, 173 AD3d 582, 583 [1st Dept. 2019]), and notwithstanding the absence of any evidence that she is unable to undertake a full-time job at a minimum wage level.

As this action was commenced after January 23, 2016, it is governed by amendments to the calculation of post-divorce maintenance set forth in Part B of section 236 of the DRL (see L 2015, ch 269, § 4; Mahoney v Mahoney 197 AD3d 638, 639 [2d Dept. 2021]). Where, as here, the plaintiff's annual income exceeds the statutory income cap of $203,000 (see DRL § 236[B][6][b][4]), the court shall determine the guideline amount of post-divorce maintenance by performing the calculations set forth in DRL § 236(B)(6)(c), and then shall determine whether to award additional maintenance for income exceeding the cap by considering the factors set forth in DRL § 236(B)(6)(e)(1) and setting forth the factors it considered (see DRL § 236[B][6][d][1]-[3]).

The plaintiff's maintenance obligation up to the income cap is $2,733.33 per month. Considering the relevant factors (see DRL § 236[B][6][e][1][a]-[o]), including the length of the parties' marriage, their age and health, the marital property being distributed, and the defendant's ability to become self-supporting, the Court finds it just and appropriate to award additional maintenance for income exceeding the cap up to $250,000, for a total maintenance award of $3,516.67 per month, commencing on the first day of the first full month after the date of this Decision After Trial.

Based upon the duration of the 17-year, 11-month marriage, the plaintiff would be entitled to maintenance for a period of 30% to 40% of the length of the marriage, which is 5 years, 4 months to 7 years, 2 months (see DRL § 236[b][6][f][1]). Under the circumstances of this case, and considering the defendant's age and limited employment history, the parties' standard of living during the marriage, and the distribution of marital property, the Court awards maintenance for a duration of 7 years, which aligns with the first of the month after the defendant turns 65 years old. In reaching this determination, the Court has considered, among other things, the disparity in the parties' respective incomes and education levels, that the defendant supported the plaintiff's career by moving abroad and staying home to raise the parties' children, that certain of the defendant's monthly expenses, including but not limited to $5,200 for clothing, are grossly inflated and not credible, and the defendant's lack of effort to become self-supporting.

The award of maintenance shall continue until the earlier of the expiration of the stated period, either party's death, or the defendant's remarriage or cohabitation within the meaning of DRL § 248.

In addition, the plaintiff is directed to pay the defendant's health insurance costs during the period the plaintiff is obligated to pay maintenance (see DRL § 236[B][8][a]; Sinnott v Sinnott, 194 AD3d at 879; DiLascio v DiLascio, 170 AD3d 804, 808 [2d Dept. 2019]).

"The Child Support Standards Act 'sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling'" (Spinner v Spinner, 188 AD3d 748, 751 [2d Dept. 2020], quoting Matter of Freeman v Freeman, 71 AD3d 1143, 1144 [2d Dept. 2010]; [*9]see DRL § 240[1-b][c]). "'Where the combined parental income exceeds that ceiling, the court, in fixing the basic child support obligation on income over the ceiling, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1-b)(f), or to apply the statutory percentages, or to apply both'" (Spinner v Spinner, 188 AD3d at 751, quoting Candea v Candea, 173 AD3d 663, 664 [2d Dept. 2019]; see DRL § 240[1-b][c][3]). "'The court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap'" (Spinner v Spinner, 188 AD3d at 751, quoting Candea v Candea, 173 AD3d at 665).

For purposes of calculating child support, the plaintiff's annual income adjusted for maintenance is $207,800, the defendant's annual income is $73,400, and the parties' combined parental income equals $281,200 (see DRL § 240[1-b][c][1]), of which the plaintiff's income comprises approximately 74% and the defendant's income 26%. Multiplying the combined parental income up to the statutory cap of $163,000 by the appropriate child support percentage of 25% for two children yields an annual parental child support obligation of $30,113.26, of which 74% is to be paid annually by the plaintiff, or $2,509.44 per month (see DRL § 240[1-b][c][2]).

Next, because the combined parental income exceeds the statutory cap currently set at $163,000, the Court must determine the amount of child support, if any, for the amount of the combined parental income in excess of $163,000. Under the circumstances of this case and upon consideration of the statutory factors set forth in DRL § 240(1-b)(f)(1-10), including the financial resources of the parties and the standard of living enjoyed by the children during the marriage, the Court finds it just and appropriate to calculate child support based on combined parental income above the statutory cap up to $250,000 (see Bari v Bari, 200 AD3d 835, 838 [2d Dept. 2021]; Sinnott v Sinnott, 194 AD3d 868, 875 [2d Dept. 2021]; Matter of Levin v Blum, 167 AD3d 609, 611 [2d Dept. 2018]).

The combined parental income above the cap is $87,000 ($250,000 - $163,000). Applying the statutory percentage of 25% for two children yields an annual parental child support obligation above the cap of $21,750, of which 74% is to be paid annually by the plaintiff, or $1,339.39 per month. After adding that to the plaintiff's monthly pro rata share of the child support obligation up to the cap ($2,509.44), the plaintiff's total child support obligation for the children equals $3,848.83.

Such payments are to be paid by the plaintiff on the first day of the first full month after the date of this Decision After Trial. Upon emancipation of each child, child support shall be recalculated.

The plaintiff shall maintain a life insurance policy for the benefit of the parties' children until payment of child support is completed, in an amount sufficient to secure that obligation (see Shvalb v Rubinshtein, 204 AD3d 1059 [2d Dept 2022]).

The DRL provides that reasonable health care expenses not covered by insurance, the cost of health insurance, and child care expenses should be allocated "in the same proportion as each parent's income is to the combined parental income" (DRL § 240[1-b][c][4], [5][ii]). Here, the parties stipulated at trial that the plaintiff would continue to maintain health insurance for the parties' children until their graduation from college or until the plaintiff is no longer able to provide dependent coverage for the children under his insurance plan. The defendant is directed to pay her 26% pro-rata share of the cost of providing health insurance benefits for the children, which shall be deducted from the plaintiff's basic child support obligation (see id.; Candea v [*10]Candea, 173 AD3d 663, 666 [2d Dept. 2019]; Bauman v Bauman, 132 AD3d 791, 793 [2d Dept. 2015]).

The defendant is also directed to pay her 26% pro rata share of the children's future unreimbursed health care expenses (see Strohli v Strohli, 174 AD3d 938, 943 [2d Dept. 2019]).

"Expenses for extracurricular activities are not specifically delineated as an 'add on' under the Child Support Standards Act" (Tuchman v Tuchman, 201 AD3d 986, 992-993 [2d Dept. 2022]). At trial, the parties stipulated that the youngest child shall continue piano lessons "for the teacher that comes to [the former marital residence],"^[FN11] but were unable to agree on the pro rata split for that expense. The Court declines to apportion 100% of the cost of piano lessons to the plaintiff given that the youngest child's standard of living during the marriage was taken into account in awarding basic child support using income in excess of the statutory cap. The Court directs the plaintiff to pay 74%, and the defendant to pay 26%, of that expense.

Neither party requested the Court to address the tax deductions to which they may be entitled for the children. Nevertheless, the Court addresses the issue to avoid any future disputes regarding which party is entitled to the deductions. For the period of time that there are two children eligible to be taken as deductions, the parties shall each be entitled to take one child as a deduction. When there is only one child eligible to be taken as a deduction, the plaintiff shall be entitled to the deduction in the first such year and the defendant shall be entitled to the deduction in the second such year, alternating until no children are eligible to be taken as a deduction. The plaintiff shall be entitled to the tax deduction only if he is current on his child support obligations on the first day of the year for which the deduction is to be declared.

"Payment[] for a child's college education is not mandatory, and absent a voluntary agreement, whether a parent is obligated to contribute to a child's college education is dependent upon the exercise of the court's discretion in accordance with Domestic Relations law § 240(1-b)(c)(7)" (Morille-Hinds v Hinds, 169 AD3d 896,900 [2d Dept. 2019]). "[U]nlike the obligation for unreimbursed medical expenses, educational expenses are not necessarily prorated in the same percentage as each parent's income bears to the combined parental income" (Castello v Castello, 144 AD3d 723, 728 [2d Dept. 2016]).

During the marriage, the plaintiff established a 529 account for each of the children. In his SNW, the plaintiff indicated that as of June 30, 2020, the eldest child's account had a balance of $272,000, and the youngest child's account had a balance of $198,000. At the time of trial, the plaintiff estimated that the eldest child's account had a balance of approximately $200,000. The parties' eldest child attends Skidmore College, and the youngest child is beginning her senior year of high school. The evidence in the record, including the youngest child's in camera testimony, demonstrate that the youngest child is smart and ambitious, and plans to attend college upon her graduation from high school in June 2023.

Under the circumstances of this case, including the disparity in income between the parties, the defendant's low earning potential, and the fact that the plaintiff had always been responsible for funding the children's 529 accounts, the defendant is directed to pay 10% of the [*11]children's college expenses, and the plaintiff is to pay the remaining 90% (see Castello v Castello, 144 AD3d 723, 728 [2d Dept. 2016]). The parties must first exhaust the funds in the children's respective 529 accounts before the parties are obligated to contribute toward the children's college expenses (see Spinner v Spinner, 188 AD3d 748, 754 [2d Dept. 2020]). As used herein, college expenses include, room, board, tuition, books, college applications, and college preparatory courses and materials (i.e. SAT/ACT).

The Court declines to impose a SUNY cap under the circumstances of this case, where the plaintiff attended a private college and law school, and the parties' eldest child is currently enrolled in a private undergraduate school (see Pandis v Lapas, 176 AD3d 837, 842 [2d Dept. 2019]; Walker v Walker, 130 AD3d 805, 806-807 [2d Dept. 2015]).

The plaintiff is entitled to a room and board credit against his basic child support obligation during the periods when the children are in school (see DRL § 240[1-b][c][7]; Rafferty v Rafferty, 199 AD3d 725, 727 [2d Dept. 2021]; Fiore v Fiore, 150 AD3d 1205, 1207 [2d Dept. 2017]).

Equitable distribution of marital property does not necessarily mean equal distribution (see Santamaria v Santamaria, 177 AD3d 802, 804 [2d Dept. 2019]; Culen v Culen, 157 AD3d 926, 929 [2d Dept. 2018]). "'Domestic Relations Law § 236 mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the courts to consider a number of statutory factors'" (Fairchild v Fairchild, 149 AD3d 710, 710-711 [2d Dept. 2017], quoting Fields v Fields, 15 NY3d 158, 170 [2010]). "Those factors include: the income and property of each party at the time of marriage and at the time of commencement of the divorce action; the duration of the marriage; the age and health of the parties; the loss of inheritance and pension rights; any award of maintenance; any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of marital property by the party not having title; and any other factor which the court shall expressly find to be just and proper" (Taylor v Taylor, 140 AD3d 944, 945-946 [2d Dept. 2016]; see DRL § 236[B][5][d]). "'While equitable distribution does not necessarily mean equal distribution, when both spouses have made significant contributions to a marriage of long duration, the division of marital property should be as equal as possible'" (Kamm v Kamm, 182 AD3d 590, 591 [2d Dept. 2020], quoting Eschemuller v Eschemuller, 167 AD3d 983, 985 [2d Dept. 2018]).

Marital property is defined in DRL § 236(B)(1)(c) as "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action." Separate property is defined as including "property acquired before marriage" or "property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse" (DRL § 236[B][1][d][1], [3]).

At trial, the parties stipulated that the plaintiff's testimony regarding the amounts in all financial accounts are accurate as of June 30, 2021.

After considering the aforementioned principles of law, the statutory factors, and the circumstances of this particular case, the Court equitably distributes the marital property as follows:

At trial, the plaintiff testified that he has a Fidelity 401K with a value as of June 30, 2021, of approximately $1.4 million, and a Fidelity IRA with a value as of June 30, 2021, of approximately $64,000 (hereinafter the retirement accounts). According to the plaintiff's SNW, the Fidelity 401K was opened in 1992, and the Fidelity IRA was opened in 1997, both of which predate the marriage.

"[P]ension and retirement benefits belonging to either spouse attributable to employment during the marriage constitute marital property subject to equitable distribution upon divorce" (McGrath v McGrath, 261 AD2d 369, 370 [2d Dept. 1999]). Here, under the circumstances of this case, the Court directs that the marital portion of the plaintiff's retirement accounts, between the date of marriage and the date of commencement of this action, be divided equally between the parties according to the Majauskas formula (see Majauskas v Majauskas, 61 NY2d 481 [1984]), with any costs incurred in the preparation of a Qualified Domestic Relations Order or Domestic Relations Order to be shared equally between the parties.

Counsel for the defendant is directed to obtain and submit a proposed Qualified Domestic Relations Order or Domestic Relations Order, whichever applicable, with notice of settlement, to the Court within 60 days of the date of this Decision After Trial.

Any adverse tax consequences and penalties associated with an early withdrawal of funds from the retirement accounts by either party shall be borne entirely by that party.

At trial, the plaintiff testified that he has brokerage accounts held at Vanguard and Fidelity, which purportedly include contributions both before and after the marriage; a checking account holding a minimal balance; another checking account with a balance of approximately $6,000; and a savings account with a balance of approximately $100,000. According to the plaintiff's SNW, as of June 30, 2020, he had a Citibank checking account titled in his name with a balance of $12,000; a Citibank savings account held jointly with the defendant with a balance of $2,000; a Citibank savings account titled in his name with a balance of $100,000; a Fidelity brokerage account with a value of $52,400; and a Vanguard brokerage account with a value of $210,000.

As far as the Court can discern, no testimony was elicited or documents introduced into evidence with respect to when the aforementioned accounts were opened or the date of commencement value of those accounts.

The defendant's SNW does not list any accounts. The evidence admitted at trial reveals that the defendant has an HSBC savings account titled in her name, however, a copy of the bank statement reveals that the account had a balance of $0 when this action was commenced and, for several years prior thereto, held a negligible amount of money.

The plaintiff claims in his closing statement that the funds on deposit in the Vanguard brokerage account consists almost entirely of premarital income earned by him during his employment at Simpson Thacher & Bartlett, LLP. However, there was no evidence admitted at [*13]trial ^[FN12] substantiating that assertion. Similarly, no evidence was introduced at trial demonstrating that the plaintiff's contributions to the Fidelity brokerage account were made prior to the marriage. Under these circumstances, the Court directs that the balances held in any savings, checking, or other non-retirement accounts as of the date of commencement of this action be equally divided between the parties within 60 days of the entry of the Judgment of Divorce (see e.g. Tenore v Tenore, 110 AD3d 711, 714 [2d Dept. 2013] ["(w)here a party fails to trace sources of money claimed to be separate property, a court may treat it as marital property"] [internal quotation marks omitted]).

Each party accuses the other of wasteful dissipation of marital funds. The defendant admits that in 2013, she withdrew the sum of $108,000 from the parties' joint HSBC bank account, and deposited those funds into an HSBC account titled in her name. The defendant claims that she did so to pay for living expenses and because the plaintiff had withdrawn $268,000 from the parties' joint account.

The Court finds that both parties have failed to prove by a preponderance of the evidence that the other engaged in wasteful dissipation of assets and declines to award either party a credit for monies transferred from the parties' joint savings account over 10 years ago. "If courts were to consider financial activities that occur and end during the course of a marriage, the result would be parties to a marriage seeking review of every debit and credit incurred. As a general rule, where the payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distributed the assets and obligations remaining once the relationship is at an end" (Ospina-Cherner v Cherner, 178 AD3d 1059, 1060-1061 [2d Dept. 2019]). Moreover, contrary to the plaintiff's conclusory assertion, there is no evidence in the record demonstrating that the defendant used the $108,000 toward the purchase of her brother's home.

The Court finds that it is in the best interests of the youngest child to remain a resident of New Rochelle until her graduation from high school in June 2023, which is consistent with the parties' stipulation awarding the defendant residential custody of the youngest child, on condition that the defendant continues to reside in New Rochelle.

Although the Court agrees that the youngest child would be afforded stability by remaining in the former marital residence, it is unclear to the Court, based on the defendant's spending habits, whether the defendant will be financially capable of maintaining the former marital residence. Under these circumstances, the Court directs that the former marital residence be placed on the market for sale no later than July 1, 2023, and the defendant is awarded [*14]exclusive use and occupancy of the former marital residence until such time as it is sold.

The evidence in the record demonstrates that the former marital residence was purchased by the parties in 2005, several years after the parties' marriage in 2001, for the amount of $849,000. The plaintiff testified that he used $85,000 of separate property to make a down payment on the former marital residence, and that, after the commencement of this action, he made a lump sum payment in the amount of $150,000 to reduce mortgage.

The Court declines to award the plaintiff a credit related to the down payment on the former marital residence in the amount of $85,000, inasmuch as he failed to adduce any evidence at trial demonstrating that the funds for the down payment came from his separate property (see Petkova v Radulovic, 163 AD3d 1014, 1015 [2d Dept. 2018]; c.f. Kattan v Kattan, 202 AD3d 771, 774 [2d Dept. 2022). The Court directs that upon the sale of the former marital residence, the net proceeds are to be divided equally between the parties.

The plaintiff shall be entitled to a credit against the proceeds of the sale of the former marital residence for payments he made to reduce the principal balance of the mortgage on the former marital residence during the pendency of this action (see Bari v Bari, 200 AD3d 835, 839 [2d Dept. 2021] ["(w)here ...a party has paid the other party's share of what proves to be marital debt, such as the mortgage,... reimbursement is required"]).

The plaintiff is the title owner of two vehicles; a 2013 Ford Explorer in defendant's possession and a 2017 Ford Mustang in the plaintiff's possession. No evidence was offered at trial regarding the value of the vehicles, other than the amounts set forth in the plaintiff's SNW. The Court directs that each party should retain the vehicle in his or her possession and be responsible for the expenses associated with his or her vehicle, and that the plaintiff transfer title of the 2013 Ford Explorer to the defendant within 30 days of the date of this Decision After Trial (see Sawin v Sawin, 128 AD3d 663, 668 [2d Dept. 2015] ["(s)ince there was no evidence as to the value of the parties' three vehicles, this Court cannot say that the Supreme Court improvidently exercised its discretion in the manner in which it distributed those vehicles"]).

No evidence was offered at trial regarding the value of any furniture, household furnishings, or jewelry in the parties' possession. In his closing statement, the plaintiff requested that he be permitted to retain certain items that were made for him by his father, which include bookcases (along with the books located therein), a desk, a small table, and a bed. The defendant took no position with respect to that request. Thus, the defendant shall transfer such items now in her possession to the plaintiff prior to the closing of the sale of the former marital residence.

The remaining furniture and household furnishings, which include an antique clock, grand piano, and certain jewelry and artwork, shall be sold prior to the closing of the sale of the former marital residence and the proceeds are to be divided equally between the parties.

Based on the evidence submitted at trial and the credibility of the parties, the Court declines to order the plaintiff to pay for any portion of the debt incurred by the defendant after the commencement of this action (see D'Amato v D'Amato, 132 AD3d 1424, 1426 [4th Dept. 2015] ["(e)xpenses incurred after the commencement of an action for a divorce are, in general, [*15]the responsibility of the party who incurred the debt"]; c.f. Morales v Carvajal, 153 AD3d 514, 515 [2d Dept. 2017] ["(c)redit card debt incurred prior to the commencement of a matrimonial action constitutes marital debt and should be equally shared by the parties"]).

At trial, the plaintiff credibly testified, and the defendant did not controvert, that he paid off the balance on all of the defendant's credit cards prior to the commencement of this action. The defendant's testimony that she amassed debt on her credit cards after the commencement of this action to pay for living expenses is unsupported by documentary evidence and is belied by the record. Rather, the record demonstrates that the defendant's debt was largely incurred as a result of her extravagant spending habits and inability to responsibly manage her finances. The defendant admittedly purchased personal luxury items at Chanel, Burberry, and Best Buy totaling over $10,000 after this divorce action was commenced. Although the defendant listed her monthly clothing expense on her SNW as $5,200, that amount is considerably inflated and not consistent with the parties' marital lifestyle, which, though very comfortable, was not luxurious. Furthermore, although the plaintiff issued checks to the defendant that were earmarked to pay utility bills, the defendant admittedly used those funds for other purposes. The defendant's testimony that she used those funds to "buy things to feed the children"^[FN13] lacks credibility. Under these circumstances, the Court finds that the debt incurred by the defendant after the commencement of this action is not subject to equitable distribution.

The defendant asserts that the plaintiff should be directed to pay 100% of her counsel fees and the GAL's fees, and seeks a final award of counsel fees in the amount of $59,794.85. The plaintiff contends, inter alia, that the defendant should be held responsible for her own counsel fees, and, in effect, requests an award of counsel fees, arguing that at least half of his former counsel's fees were incurred as a result of the defendant's obstructive conduct and unreasonable positions. He further contends that the defendant should be held responsible for 100% of the GAL's fees, because the GAL was no longer needed once the defendant retained counsel in this matter.

By statute, there is "a rebuttable presumption that counsel fees shall be awarded to the less monied spouse" (DRL § 237[a]). "In exercising judicial discretion to determine counsel fee applications, the courts must take into account not only the financial circumstances of the parties but the circumstances of the case as a whole, including the relative merits of the parties' positions and whether either party has delayed the proceedings unreasonably or engaged in unnecessary litigation. A less-monied spouse should not be expected to exhaust or spend down a prospective or actual distributive award in order to pay counsel fees as the result of unreasonable or excessive litigation conduct by the adverse party. On the other hand, the more affluent spouse should not be treated as an open-ended checkbook expected to pay for exorbitant legal fees incurred by the less affluent spouse through excessive litigation or the assertion of unreasonable positions" (Kaufman v Kaufman, 189 AD3d 31, 74-75 [2d Dept. 2020]).

In this case, although the defendant is indisputably the less monied spouse, the plaintiff was forced to proceed pro se at trial due to mounting litigation costs. According to the plaintiff, his former counsel's fees exceeded an astounding $130,000, despite that her representation [*16]ceased prior to trial. In around September 2020, the plaintiff paid interim counsel fees in the amount of $15,000 to the defendant, however, it is undisputed that the defendant did not use those funds to pay her attorney.^[FN14] Furthermore, although it was the plaintiff who sought the appointment of the GAL, it was at a time when the defendant was not represented by counsel. Pursuant to the order appointing the GAL, the plaintiff was directed to pay 100% of the GAL's fees, subject to reallocation, which totaled $18,520. Those fees were largely incurred after the defendant had already retained counsel in this matter. On the first day of trial, the Court discharged the GAL, finding that the defendant failed to set forth an adequate reason as to why the GAL was needed for purposes of trial when the defendant was ably represented by counsel.^[FN15] Furthermore, although the issues in this case are not complex, the record demonstrates that both parties engaged in conduct and adopted positions that prolonged this case and caused unnecessary litigation.

Under these circumstances, and considering the merits of the parties' respective positions, the degree to which each party sought to reasonably resolve the matter without resorting to trial, and the financial circumstances of the parties, including the award of maintenance to the defendant and the division of the parties' marital assets, the Court awards the defendant counsel fees in the amount of $15,000. Such payment shall be made by the plaintiff to the defendant's attorney within 60 days of the date of this Decision After Trial.

The Court has considered the additional contentions raised by the parties and finds them to be without merit. All claims for relief not specifically addressed herein are denied.

Accordingly, it is hereby,

ORDERED that the plaintiff is granted a divorce on the ground set forth in DRL § 170(7); and it is further,

ORDERED that the parties are awarded joint legal custody of the youngest child, with residential custody to the defendant, on condition that the defendant continues to reside in New Rochelle, NY. Should the defendant wish to reside elsewhere, the defendant must either obtain the plaintiff's written consent or permission from the Court. The plaintiff is awarded liberal parental access with the youngest child, to be arranged between the plaintiff and the youngest child; and it is further,

ORDERED that the plaintiff shall pay maintenance to the defendant in the amount of $3,516.67 per month, for a period of 7 years, commencing the first day of the first full month after the date of this Decision After Trial. The award of maintenance shall continue until the earlier of the expiration of the stated period, either party's death, or the defendant's remarriage or cohabitation within the meaning of DRL § 248; and it is further,

ORDERED that the plaintiff shall pay the defendant's health insurance costs during the period the plaintiff is obligated to pay maintenance; and it is further,

ORDERED that the plaintiff shall pay child support to the defendant in the amount of [*17]$3,848.83 per month, commencing on the first day of the first full month after the date of this Decision After Trial. Upon emancipation of each child, the plaintiff's child support obligation shall be recalculated; and it is further,

ORDERED that the plaintiff shall maintain a life insurance policy for the benefit of the parties' children until payment of child support is completed, in an amount sufficient to secure that obligation; and it is further,

ORDERED that the parties shall share in the costs of statutory add-on expenses on a pro rata basis. The plaintiff shall be responsible for 74% of those expenses , and the defendant shall be responsible for 26% of those expenses; and it is further,

ORDERED that the plaintiff shall maintain health insurance for the children until their graduation from college or until the plaintiff is no longer able to provide dependent coverage for the children under his insurance plan. The defendant is directed to pay her 26% pro-rata share of the cost of providing health insurance benefits for the children, which shall be deducted from the plaintiff's child support obligation; and it is further,

ORDERED that the parties shall share in the cost of the children's future unreimbursed health care expenses on a pro rata basis. The plaintiff shall be responsible for 74% of those expenses , and the defendant shall be responsible for 26% of those expenses; and it is further,

ORDERED that the parties shall share in the cost of the youngest child's piano lessons that take place in the former marital residence. The plaintiff shall be responsible for 74% of that expense, and the defendant shall be responsible for 26% of that expense; and it is further,

ORDERED that the parties shall each be entitled to take one child as a deduction for the period of time that there are two children eligible to be taken as deductions. When there is only one child eligible to be taken as a deduction, the plaintiff shall be entitled to the deduction in the first such year and the defendant shall be entitled to the deduction in the second such year, alternating until no children are eligible to be taken as a deduction. The plaintiff shall be entitled to the tax deductions only if he is current on his child support obligations on the first day of the year for which the deduction is to be declared; and it is further

ORDERED that the parties shall share in the cost of all college expenses, which includes room, board, tuition, books, college applications, and college preparatory courses and materials, 90% payable by the plaintiff, 10% payable by the defendant. The parties must first exhaust the funds in the children's respective 529 accounts before the parties are obligated to contribute toward the children's college expenses. The plaintiff is entitled to a room and board credit against his child support obligation during the periods when the children are in school; and it is further,

ORDERED that the marital portion of the plaintiff's retirement accounts, between the date of marriage and the date of commencement of this action, be divided equally between the parties according to the Majauskas formula, with any costs incurred in the preparation of a Qualified Domestic Relations order or Domestic Relations Order to be shared equally between the parties. Counsel for the defendant is directed to obtain and submit a proposed Qualified Domestic Relations order or Domestic Relations Order, whichever applicable, with notice of settlement, to the Court within 60 days of the date of this Decision After Trial; and it is further,

ORDERED that any adverse tax consequences and penalties associated with an early withdrawal of funds from the retirement accounts by either party shall be borne entirely by that party; and it is further,

ORDERED that the balances held in any savings, checking, or other non-retirement [*18]accounts as of the date of commencement of this action be equally divided between the parties within 60 days of the date of this Decision After Trial; and it is further,

ORDERED that the former marital residence shall be placed on the market for sale no later than July 1, 2023, and the defendant is awarded exclusive use and occupancy of the former marital residence until such time as it is sold. Upon the sale of the former marital residence, the net proceeds are to be divided equally between the parties, except that the plaintiff shall be entitled to a credit against the net proceeds of the sale of the former marital residence for payments he made to reduce the principal balance of the mortgage during the pendency of this action; and it is further,

ORDERED that each party shall retain the vehicle in his or her possession and be responsible for the expenses associated with his or her vehicle, and the plaintiff shall transfer title of the 2013 Ford Explorer to the defendant within 30 days of the date of this Decision After Trial; and it is further,

ORDERED that the plaintiff is awarded exclusive ownership over certain furniture that were made for him by his father, which include bookcases (along with the books located therein), a desk, a small table, and a bed, and the defendant shall transfer those items, now in her possession, to the plaintiff prior to the closing of the sale of the former marital residence. The remaining furniture, household furnishings, jewelry, and artwork shall be sold prior to the closing of the former marital residence, and the proceeds are to be divided equally between the parties; and it is further,

ORDERED that the defendant is awarded final counsel fees in the amount of $15,000, payable by the plaintiff to the defendant's attorney within 60 days of the date of this Decision After Trial; and it is further,

ORDERED that all other prayers for relief not specifically addressed herein are denied; and it is further,

ORDERED that the plaintiff shall settle Findings of Fact and Conclusions of Law, a Judgment of Divorce, and all other documents necessary to allow the Court to enter Judgment in accordance with this Decision After Trial, on at least five (5) days notice, within thirty-five (35) days of the date hereof. Failure to timely settle the Findings of Fact and Judgment of Divorce may result in this action being dismissed, or other appropriate sanctions.

The foregoing constitutes the decision and order of this Court.