On March 28, 29, and 30, 2022, a nonjury trial was held as to certain issues concerning, inter alia, maintenance, child support, and equitable distribution. After considering the sworn testimony of the parties, the credibility of the witnesses, the documents admitted into evidence, and the parties' post-trial memoranda, the Court makes the following findings of fact and conclusions of law:

The parties were married on November 5, 2005, and are the parents of four unemancipated children, two of whom are twins, ages 13, 7, and 4 at the time of trial (hereinafter collectively the children). Prior to the marriage, on September 21, 2005, the parties entered into a prenuptial agreement which provided, among other things, that each party waived the right to maintenance and attorney's fees (see Plaintiff's Exhibit 10).

The plaintiff commenced this action for divorce on August 18, 2020, upon the filing of a summons and verified complaint. The parties subsequently resolved the issue of grounds for divorce by stipulation, which was so-ordered by the Court on March 8, 2021.

The issues of custody and access with respect to the children were resolved by a parenting agreement signed by the parties on August 22, 2021. Pursuant to the agreement, which was so-ordered by the Court on August 23, 2021, the parties, inter alia, agreed to share joint [*2]legal custody of the children. The parties further agreed that until such time as the twins begin kindergarten, the defendant shall have residential custody of the children, and the plaintiff shall have parenting time with the children on Thursdays after school or camp until drop off at school or camp on Friday mornings; alternate weekends; and shared parenting time on Tuesdays.

By decision and order entered October 29, 2021, the Court, inter alia, granted those branches of the defendant's motion which were to set aside the provisions of the parties' prenuptial agreement waiving the right to seek an award of maintenance and counsel fees, and awarded the defendant interim counsel fees in the amount of $35,000 (NYSCEF Doc No. 81).

The plaintiff attended medical school at Thomas Jefferson University and graduated in 2003. Upon his graduation, the plaintiff began a surgical residency program at Northwestern University in Chicago. In 2004, the defendant moved to Chicago, and the parties resided there from the time of the marriage until 2010, when the parties moved to New York so that the plaintiff could pursue a fellowship at Mount Sinai Hospital.

Between 2011 and 2013, the parties lived in Boston, where the plaintiff worked as an attending physician at Tufts University. In around 2013, the parties moved to Scarsdale, NY.

The plaintiff is currently employed as chief of colorectal surgery at St. Francis Hospital of the Catholic Health Systems. The plaintiff earned $285,690 in 2015; $309,830 in 2016; $245,955 in 2017; 286,982 in 2018; 602,699 in 2019; 668,003 in 2020; and $761,040 in 2021.

In July 2014, the parties purchased the marital residence located at XXXXXX in Scarsdale, NY for the amount of $1,650,000 (hereinafter the marital residence). The marital residence is encumbered by two mortgages — the first in the principal amount of $990,000 and the second in the principal amount of $513,682.36. The mortgages were consolidated on September 27, 2016. The outstanding balance on the consolidated mortgage as of the date of commencement was $1,351,557.

The plaintiff filed a statement of net worth (hereinafter SNW) on February 24, 2021, which listed monthly expenses totaling $49,040, and assets totaling $1,169,221. The monthly expenses include mortgage, $10,600; utilities, $1,648; food, $2,500; insurance, $2,380; household help, $7,062; and income taxes, $16,436.

The plaintiff's assets as of November 2020, include a Chase checking account held in his individual name with a balance of $73,017; the marital residence; retirement accounts with a value of $73,948; a Rolex watch; a Glenmede irrevocable trust with a value of $893,234 (hereinafter the Glenmede trust); and a Glenmede IMA account with a value of $83,219.

Prior to the marriage, in 1997, the defendant obtained a bachelor's degree in Russian studies from Boston University and, upon her graduation, completed certain pre-medical post-baccalaureate courses. In 2002, the defendant obtained a master's degree in medical sciences/psychology from Boston University and graduated second in her class. Prior to her move to Chicago in 2004, the defendant was employed at the University of Pennsylvania as a senior research coordinator in the mood and anxiety disorders department of psychiatry. The defendant did not work outside of the home during the marriage.

In March 2021, the defendant filed an SNW, which listed monthly expenses totaling [*3]$37,795 and assets which include a JP Morgan checking account held in her individual name with a balance of $6,100; a Chase savings account held in her individual name with a balance of $100; the marital residence; and her engagement ring with a value of approximately $20,000.

The plaintiff's testimony

At trial, the plaintiff testified that the defendant placed second in her graduating class from Boston University, that he had many discussions with the defendant about her applying to medical school, and that the defendant always expressed her intention "to have her own career and make her own money."^[FN1] He stated that the defendant joined him in Chicago in 2004, and that prior to the marriage, she was briefly employed at a pharmaceutical research company.

The plaintiff testified that his father gifted $200,000 toward the down payment for the purchase of the parties' apartment in Chicago (hereinafter the Chicago property), that he contributed the remaining $52,000 from the Glenmede trust, and that the mortgage payments were made using funds from the Glenmede trust. The Glenmede trust was established by the plaintiff's father in around October 2012, with an initial gift of $1,345,000. The plaintiff's father thereafter gifted an additional $500,000 to the Glenmede trust, and made an annual gift to the plaintiff's Glenmede IMA account in the maximum amount exempt from gift tax. The plaintiff stated that over the course of the marriage, he withdrew in excess of $2 million from the Glenmede accounts. He testified that the parties lived beyond their means during the marriage and that he "never individually made enough money to support [their] lifestyle."^[FN2]

The plaintiff testified that when the parties moved to New York in June 2010, he was earning approximately $60,000 per year and they lived in a rental apartment costing more than $4,000 per month. The plaintiff stated that in July 2011, the parties moved to Boston because he accepted a position as an attending physician at Tufts University earning an annual salary of $240,000. The parties lived in a $4,000 per month rental apartment. The plaintiff testified that the parties' living expenses were paid from his income and the Glenmede accounts.

The plaintiff testified that in June 2013, the parties moved back to New York so that he could pursue a job as an assistant professor of surgery at Mount Sinai. He stated that the defendant would not agree to move to New York unless the parties resided in Scarsdale. The plaintiff testified that when he told the defendant that they "will not be able to afford it on [his] own salary," she replied that she "will be working."^[FN3] The parties moved into a rental home in Scarsdale costing $10,000 per month. The plaintiff testified that in the spring of 2014, he had to take an additional position at White Plains Hospital to earn more money. He stated that in 2014, the parties sold the Chicago property, and the proceeds were used to pay off the mortgage and other debt that the parties accumulated during the six-month period that they were living in Scarsdale.

The plaintiff testified that the parties purchased the marital residence in July 2014 for the amount of $1,650,000, and lived at the Ritz Carlton in White Plains for several months while the marital residence was being renovated. He stated that he contributed approximately $721,000 of [*4]his separate property toward the purchase of the marital residence, and that the parties obtained a mortgage in the principal amount of $990,000. The plaintiff testified that the mortgage payments were made using funds that were withdrawn from the Glenmede trust and deposited into the parties' joint checking account, which was opened in June 2014. He stated that the joint checking account was funded by his income and "additional withdrawals from Glenmede."^[FN4] The plaintiff testified that the marital residence subsequently underwent "a complete gut renovation," during which the parties resided with the children at the Ritz Carlton in White Plains from late winter of 2016 until spring of 2017, paying $3,500 per month. He stated that the renovations cost approximately $1 million, but that the "[i]ndirect costs are a lot more than that."^[FN5] The plaintiff testified that the renovations and other living expenses during that time were paid using the plaintiff's income, funds from the Glenmede trust, and a second mortgage on the marital residence in the approximate amount of $500,000.

The plaintiff testified that in 2017, he stopped working at White Plains Hospital, and in 2018, began working as a full-time employee at Mount Sinai Hospital. He stated that in August 2019, he accepted a position as chief of colon and rectal surgery at St. Francis Hospital because "[i]t became very clear with four children, that financially, [he] was never going to be able to support [his] family on a single income working at Mount Sinai Hospital and staying in Scarsdale."^[FN6] He stated that his salary was $500,000 per year, plus a stipend of $100,000 as chief of colon and rectal surgery. The plaintiff testified that since August 2019, he has earned additional income by doing consulting work for various start-up companies and by serving as an expert witness in two litigations. He explained that the bonuses he received in 2021 (productivity bonus, approximately $73,000; quality bonus, $50,000), are not guaranteed, and that he never received a productivity bonus in prior years. The plaintiff stated that in 2021, he "worked more hours" in order to "escape" the marital residence and to earn more income, but that his current work schedule is not sustainable given the parties' custody arrangement.^[FN7] The plaintiff anticipates that his future income will be less than what he earned in 2021. The plaintiff testified that the defendant never worked during the marriage and made no financial contributions toward any of the properties that they jointly owned.

The plaintiff testified that since the commencement of this action, he has paid for certain repairs and improvements to the marital residence, and $190,800 toward the mortgage.^[FN8] He stated that the defendant received $20,000 from her father, but did not use any of those funds toward the parties' living expenses. The plaintiff testified that his retirement accounts, as well as the defendant's retirement account, were funded by the Glenmede trust. He stated that he learned that the defendant had liquidated her retirement accounts when he was told by his accountant that he had to pay a $17,000 tax penalty for the early withdrawal.

The plaintiff described the parties' marital lifestyle as "modest," noting that the two eldest children attend public school, that the parties drive modest cars, and that they could not [*5]afford to go on vacations.^[FN9] He stated that during the marriage, the parties purchased clothing for the children from consignment stores, and that they went to "chain restaurant[s]."^[FN10] The plaintiff stated that the twins attend a private preschool, and that his mother has contributed toward the payment of that expense. He testified that prior to the pandemic, the eldest child went to a sleepaway camp during the summer, and the second eldest child attended a day camp in Scarsdale, both of which were paid for by his parents. The plaintiff stated that the parties did not employ a nanny for the children until after the twins were born.

The plaintiff stated that since the commencement of this action, he deposited $3,500 per month into the parties' joint checking account for the defendant to use toward groceries and other living expenses. The plaintiff stated that every month, those funds would be depleted within a few weeks and he would have to contribute more upon the defendant's request. He noted that in addition to the $3,500, he reimbursed the defendant for clothing for the children when she provided him with a receipt. The plaintiff stated that in October 2021, he took over the responsibility of "food shopping" and reduced the amount he deposited into the parties' joint checking account to $1,500 "to control the hemorrhage of cash from that account."^[FN11] The plaintiff testified that the defendant's father contributed $50,000 toward her legal fees, and had given her several checks.

The plaintiff testified that although it is his preference that the parties' children remain in the Scarsdale school district, he does not think it is financially feasible. He stated that his father set up trust accounts for each of the parties' children after their birth, but the accounts are not listed on his SNW because "it is not [his] money."^[FN12]

The defendant's testimony

The defendant testified that from August 2002 through March 2004, she earned approximately $49,000 per year during her employment at the University of Pennsylvania. She stated that when she moved to Chicago in March 2004, she had ambitions of returning to school. The defendant asserted that after the parties' engagement, she focused on the wedding. She stated that the parties married in 2005, and that she thereafter "refocused on applying to graduate schools."^[FN13] The defendant testified that she had received job offers, but she was either underqualified or overqualified for those positions. She stated that she became pregnant in November 2007, and never sought employment again. The defendant acknowledged that she did not work between 2005 and 2008, despite that the parties had no children and the plaintiff had asked her to get a job. The defendant stated that in around 2006, she worked briefly as a "research liaison," but was unpaid.^[FN14]

The defendant testified that during the marriage, she was the primary homemaker and [*6]caregiver of the children. She stated that the parties hired someone to assist with child care after the twins were born in December 2017, but that she no longer needs full-time assistance. The defendant denied that she had forced the plaintiff to move to Scarsdale. She acknowledged that she told the plaintiff in 2013, that she would get a job to help defray the cost of living in Scarsdale, but did not. The defendant also acknowledged that the purchase of the marital residence, the mortgage, utility bills, and the renovations were paid using funds from the Glenmede trust.

The defendant testified that it was in the best interest of the twins to remain in preschool an additional year and enroll them in kindergarten in 2023. She stated that once the twins attend kindergarten, she plans to "immediately work in real estate."^[FN15] The defendant asserted that she would immediately pursue a master's degree in clinical and counseling psychology and would apply to Fordham and Columbia, both of which offer on-line courses. She stated that the cost is approximately $30,000 for a two-year program. The defendant testified that she has a real estate license exam scheduled for May 3, 2022. She asserted that she has no health conditions that prevent her from working part-time or caring for the children. The defendant insisted that it is her "job" to pick the twins up from preschool and drive the older children to their after-school activities, and that she "will not have a job until [her] children are in full-time school, because [t]hat was [her] vow to them."^[FN16] She asserted that "was an understanding between [the plaintiff] and [her]."^[FN17] The defendant stated that in September 2022, the twins will likely be in preschool five days a week, from around 9:00 a.m. until 1:45 p.m. She testified that all of her efforts regarding employment have been verbal communications.

The defendant testified that she was forced to liquidate her IRA accounts and sell her engagement ring to pay a retainer fee to counsel, various living expenses, dental surgery, and certain cosmetic procedures. She stated that beginning in around August 2020, the defendant deposited an "arbitrary" amount of $2,500 in the parties' joint account on the first of each month for the defendant to use "strictly" for the children's needs.^[FN18] The defendant testified that she often ran out of money by the end of the month and, on one occasion, had to ask her father for his credit card information to pay for gas. She stated that her spending was neither "gratuitous" nor "indulgent," but was the cost of living "with four growing children [while she was] still a full-time stay-at-home mother."^[FN19] The defendant testified that the $20,000 she received from her father was used to pay for the children's summer activities.

The defendant stated that the cost of renting a four-bedroom home in the Scarsdale school district is between $6,500 and $8,500. She acknowledged that since the commencement of this action, the plaintiff has "predominantly" paid all household expenses and child-related expenses.^[FN20] The defendant stated that certain expenses were paid using money from her IRA accounts and money gifted to her by her father. She testified that since August 2020, she [*7]received approximately $40,000 from her father, and that her father paid $50,000 of her counsel fees. The defendant conceded that neither she nor the plaintiff can afford to live in the marital residence and that it must be sold.

At the conclusion of the trial, the Court granted the plaintiff's request for an order directing that the marital residence be listed for sale immediately.

In a closing statement, the plaintiff's attorney argued that the plaintiff's income during the last seven complete years of the marriage averaged $308,517, that his income increased dramatically only one year prior to the commencement of this divorce action, and that "[a]ny argument of 'lifestyle' should be based on Plaintiff's income throughout the marriage, and not a snapshot of the last eleven months prior to commencement."^[FN21] He asserted that using the plaintiff's income up to the statutory cap of $203,000, and $50,000 of income imputed to the defendant, results in a maintenance award in the amount of $2,342 per month.

The plaintiff's attorney contended that the Court should decline to award maintenance on income above the cap and should limit the award to a duration of 21 months, taking into account, among other things, that the defendant has already received 19 months of support during the pendency of this action, the defendant has been voluntarily unemployed since 2005, that "the family lived beyond their means for nearly the entire length of the marriage," and "drained the [plaintiff's] separate property trust accounts."^[FN22] He argued that although the defendant claims that she is unable to work because the twins are not in school full-time, she acknowledged that even if the twins remain in preschool for the 2022/2023 academic year, their dismissal time is "on par with dismissal time for the oldest child."^[FN23] The plaintiff's attorney contended that the defendant, who is highly educated, does not require any additional education or training to reenter the workforce since she has already completed the required courses to obtain a real estate license.

The plaintiff's attorney further argued that for purposes of calculating child support, the plaintiff's income should be capped at $300,000, and the defendant should be imputed income in the amount of $50,000, plus $28,100 in annual maintenance. He stated that using those amounts, during the period of time that the plaintiff is paying maintenance to the defendant, the plaintiff's child support obligation should be $6,900 per month. The plaintiff's attorney asserted that upon the termination of maintenance, the plaintiff's child support obligation should increase to $7,206 per month, and would thereafter reduce upon the emancipation of each of the children. The plaintiff's attorney contended that statutory add-on expenses should be shared between the parties on a pro rata basis, with the plaintiff responsible for 75% of those expenses, and the defendant responsible for 25%. He stated that the parties should be ordered to contribute to the children's college expenses on the same pro rata basis after the funds in the children's respective trust accounts are exhausted, capped at the cost of SUNY Binghamton.

The plaintiff's attorney asserted that the parties' jointly held Chase account ending in x-2127 should be equally divided between the parties, however, pursuant to the parties' stipulation placed on the record on December 3, 2021, the plaintiff is entitled to a credit for paying the [*8]defendant's hotel expenses since January 2022, in order to effectuate the terms of the parties' parenting agreement. He stated that each party should retain any other bank accounts held in his or her individual name. The plaintiff's attorney argued that the plaintiff's retirement accounts are his separate property, that the defendant's retirement accounts were fully funded by the Glenmede trust, and that the plaintiff "should receive a credit for 100% of his separate property contributions to the [defendant's] retirement assets as well as any taxes paid on Defendant's behalf for the early liquidation."^[FN24] With respect to the marital residence, the plaintiff's attorney argued that pursuant to the prenuptial agreement, after deducting the outstanding balance of the approximate $1,300,000 mortgage, "the parties respective proportional shares of the marital portion of the Marital Residence are 100% to the Plaintiff, and 0% to Defendant."^[FN25] The plaintiff's attorney noted that the evidence adduced at trial demonstrated that the plaintiff contributed more than $1,310,000 of his separate property toward the acquisition and improvement of the marital residence, and that the plaintiff should receive a credit for payments made by him from his separate property, both during the marriage and the pendency of this action, to reduce the principal balance of the mortgage on the marital residence.

In a closing statement, the defendant's attorney argued that the plaintiff's projected monthly income, excluding any bonuses, will be $48,107, and that his monthly expenses will be only $17,569 after the marital residence is sold. He contended that the plaintiff would have "substantial excess funds leftover each month" if the plaintiff was directed to pay $20,000 per month for maintenance and child support. The defendant's attorney asserted that the parties enjoyed an upper-class standard of living, as evidenced by their home, vacations, vehicles, and household help. He contended that the parties "never lived beyond their means" and "always managed to pay the bills."^[FN26] The defendant's attorney argued that a request for an award of maintenance based on the plaintiff's income of $600,000, resulting in a monthly maintenance award of $9,643.92 per month, for a duration of at least 5 years from the date of entry of the judgment of divorce or the closing on the sale of the marital residence is not unreasonable. The defendant's attorney noted that in order for the defendant and the children to continue to reside in the Scarsdale school district, her monthly expenses would be approximately $17,695 per month. He stated that the plaintiff should also be directed to pay the cost of health insurance for the defendant.

The defendant's attorney argued that the plaintiff should be directed to pay child support to the defendant in the amount of $10,560.75 per month, commencing after the closing of the sale of the marital residence or the date the defendant and the children move out of the marital residence, whichever occurs earlier. He asserted that based on, among other things, the standard of living of the children, and the substantial disparity between the parties' incomes, financial resources, and earning potential, it is reasonable to calculate child support based on combined parental income in the amount of $425,000. The defendant's attorney argued that the plaintiff should be directed to pay 100% of all statutory add-ons, 100% of unreimbursed medical [*9]expenses ^[FN27] , and 100% of the agreed-upon extracurricular activities, tutoring, and other activities.

The defendant's attorney further argued that since neither party can afford to live in the marital residence, it must be sold and the net proceeds from the sale of the marital residence should be equally divided between the parties. He contended that because the funds from the Glenmede trust were deposited in the parties' joint checking account, the plaintiff's separate property contributions were transmuted into marital property. With respect to the parties' retirement accounts, the defendant's attorney argued that the plaintiff's IRA should be divided between the parties and the defendant's IRA should be "deemed divided" because she was forced to liquidate that account to pay for living expenses.^[FN28] The defendant's attorney contended that the parties' joint checking account should be equally divided between the parties, the defendant should be permitted to discontinue her life insurance policy since she cannot afford the premium payments, and the plaintiff should be required to maintain his existing life insurance policy.

"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 14 years, 9 months when this divorce action was commenced. At the time of trial, the plaintiff was 45 years old and the defendant was 46 years old, and both are in good health. When the parties married, the plaintiff had graduated from medical school and was completing a surgical residency program, earning approximately $40,000. For the majority of the marriage, the plaintiff earned on average approximately $280,000 per year, until 2019 (one year prior to this action), when he accepted a position as chief of colon and rectal surgery at St. Francis Hospital of the Catholic Health Systems, earning a salary of $500,000 per year, plus a stipend of $100,000. In 2021, the plaintiff earned $761,040, as reflected on his most recent income tax return, which included a productivity bonus (approximately $73,000) and a quality bonus ($50,000). Although neither bonus is guaranteed, the inclusion of an annual bonus in the amount of $50,000, which the plaintiff received in 2020 and 2021, is reasonable. The Court will therefore attribute an income of $650,000 to the plaintiff for purposes of calculating maintenance and child support.

The defendant, who is highly educated and intelligent, has not been gainfully employed since prior to 2004, when she was working as a research coordinator earning approximately $49,000. The defendant moved to Chicago in 2004, at a time when the parties had no children [*10]and were not married, yet never secured a paid job, purportedly because she was either overqualified or underqualified, and then focused on planning the parties' wedding. The defendant remained unemployed for a period of nearly four years when she became pregnant with the parties' eldest child in 2008. The defendant then stopped any effort at seeking employment. Although both parties testified regarding the defendant's aspirations of attending medical school and having her own career, the evidence demonstrates that since the parties' marriage, she has taken no steps toward actually achieving those goals.

The parties decided to move to New York in 2013, in order for the plaintiff to pursue a career opportunity. The Court finds the plaintiff's testimony credible that the defendant was insistent upon residing in Scarsdale. It is undisputed that the defendant assured the plaintiff that she would get a job to help defray the high costs associated with living in Scarsdale, but never did. The defendant testified that shortly after moving to Scarsdale, she became pregnant with the parties' second child. The defendant stayed at home to be the primary caregiver of the two eldest children, and the parties did not obtain household help until after the twins were born in December 2017.

The defendant is adamant that she will not obtain gainful employment until the twins are enrolled in kindergarten (September 2023), and that she will only be able to work on a part-time basis so that she can continue to care for the children when they return home from school. The reasons given by the defendant for waiting until September 2023 to get a paid job are illogical given her testimony that the twins' dismissal time from preschool is nearly the same as if they were enrolled in kindergarten. Moreover, the Court notes that the defendant has, by choice, imposed limitations on her ability to work outside the marital residence, notwithstanding her acknowledgment that the parties cannot afford to live in the marital residence and despite her desire for the children to remain in the Scarsdale school district. The defendant testified that she is pursuing a real estate license and that she has already received a verbal offer to work for a team at Houlihan Lawrence.

The Court finds that the defendant has significant earning potential, is voluntarily unemployed, and has the ability to become self-supporting. Nevertheless, the defendant has not worked outside the marital residence in over 17 years. Under these circumstances, the Court finds it reasonable at this time to impute income to the defendant in the amount of $50,000, which is comparable to what she was earning before the marriage.

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 $2,341.67 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 equitable distribution of marital property (discussed infra), and the defendant's ability to become self-supporting, the Court finds it just and [*11]appropriate to award additional maintenance for income exceeding the cap up to $250,000, for a total maintenance award of $3,125 per month.

In reaching this determination, the Court has also considered that while the parties enjoyed an upper-middle class lifestyle, it was largely because they relied heavily on their expenses being paid from the plaintiff's Glenmede accounts, which were funded by his father. When the parties purchased the marital residence for $1,650,000, the plaintiff was earning less than $300,000 and the defendant earned no income. The record established that the parties were forced to drain the Glenmede trust in order to pay the expenses associated with the marital residence and the renovations. The parties also relied on the plaintiff's parents to pay for the cost of preschool and summer camp. The evidence further established that the parties did not have household help until after the twins were born, that they drove somewhat modest vehicles, and did not take family vacations. The parties have continued residing together in the marital residence throughout this litigation because, among other reasons, it would impose an exorbitant financial burden on the parties to maintain separate homes.

As stated above, the defendant has the ability and the means to become self-supporting. In addition, the evidence adduced at trial established that the defendant receives financial assistance from her father, who gave her certain sums of money throughout this litigation and paid $50,000 toward her legal fees, and there is no reason for the Court to believe that his generosity will cease in the near future.

Based upon the duration of the 14-year, 9-month marriage, the plaintiff would be entitled to post-divorce maintenance for a period of 15% to 30% of the length of the marriage, which is 2 years, 3 months to 4 years, 5 months (see DRL § 236[b][6][f][1]). Under the circumstances of this case, and considering, among other factors, the disparity between the plaintiff's income and the defendant's imputed income, the plaintiff's access to financial resources, that the defendant has never worked outside of the home, and the defendant's future earning capacity, the Court awards maintenance for a duration of 4 years. While it is evident that the defendant made significant contributions to the family as the primary caretaker, the Court has also considered her refusal to become gainfully employed, despite her assurances to the plaintiff that she would do so both before and after the marriage. The Court rejects the defendant's contention that maintenance should be awarded for a duration of five years, which far exceeds the recommended timeframe in the advisory schedule. Moreover, given that the defendant is highly educated, seemingly has ambitions for a successful career in real estate, and already has an offer of employment, an award of maintenance for a duration of 4 years affords the defendant adequate time 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.

"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]; 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 [*12]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 $612,500, the defendant's annual income is $87,500, and the parties' combined parental income equals $700,000 (see DRL § 240[1-b][c][1]), of which the plaintiff's income comprises 87.5% and the defendant's income 12.5%. Multiplying the combined parental income up to the statutory cap of $163,000 by the appropriate child support percentage of 31% for four children yields an annual parental child support obligation of $50,530, of which 87.5% is to be paid annually by the plaintiff, or $3,684.48 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, among other things, the financial resources of the plaintiff, that the future earning potential of the defendant - which the Court finds to be substantial - will still be far less than the earning capacity of the plaintiff, 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 $350,000 (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]). In reaching this determination, the Court has also considered the defendant's fervent desire to continue residing in Scarsdale with the children. Only the two eldest children attend school in the Scarsdale school district since the parties have decided to postpone enrolling the twins in kindergarten until September 2023. Although it would certainly be ideal for the children to continue attending their current schools, the Court rejects the defendant's contention that the plaintiff will be able to shoulder his financial burdens more easily after the divorce and after the sale of the marital residence. The plaintiff should not be forced to liquidate his Glenmede accounts to sustain a lifestyle that the parties could not afford during the marriage.

The combined parental income above the cap is $187,000 ($350,000 - $163,000). Applying the statutory percentage of 31% for four children yields an annual parental child support obligation above the cap of $57,970, of which 87.5% is to be paid annually by the plaintiff, or $4,226.98 per month. After adding that to the plaintiff's monthly pro rata share of the child support obligation up to the cap ($3,684.48), the plaintiff's total child support obligation for the children equals $7,911.46.

The plaintiff's maintenance and child support payments as set forth herein shall commence upon the closing of the sale of the marital residence. For so long as the parties continue to reside together in the marital residence, the parties shall maintain the status quo regarding the payment of the carrying charges on the marital residence and the payment of support to the defendant, which shall be deposited directly into her individual checking account.

Upon the termination of maintenance, child support shall be recalculated. Child support shall also be recalculated upon the emancipation of each child.

The plaintiff shall maintain a life insurance policy in an amount sufficient to secure the payment of child support and maintenance (see DRL § 236[B][8][a]; Shvalb v Rubinshtein, 204 AD3d 1059 [2d Dept 2022]).

"The obligations for health care, child care, and education[] expenses are commonly referred to as add-on expenses" (Cimons v Cimons, 53 AD3d 125, 130 [internal quotation marks omitted]). The plaintiff's pro rata share of all statutory add-on expenses is 87.5%, and the defendant's pro rata share is 12.5%, which is the same proportion as their incomes are to the combined parental income. The plaintiff is directed to continue to maintain health insurance for the parties' children, and the defendant's 12.5 % pro rata share of such costs shall be deducted from the plaintiff's child support obligation. Regarding the add-on for uncovered, unreimbursed medical and related expenses, "responsibility for future reasonable unreimbursed health care expenses shall be prorated in the same proportion or percentage as each parent's income bears to the combined parental income" (id. at 131). Thus, the plaintiff's pro rata share of the children's uncovered, unreimbursed medical and related expenses is 87.5% and the defendant's pro rata share is 12.5%.

The plaintiff shall be responsible for 100% of the cost for the twins to attend preschool for the remaining year. "[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]). The evidence at trial demonstrated that the plaintiff's mother contributed toward the cost of that expense and there is no reason for the Court to believe that her largesse will discontinue.

Given the age of the parties children — the oldest being only 14 years old — it is premature at this juncture to include a directive regarding the payment of college expenses (see Spinner v Spinner, 188 AD3d 748, 752 [2d Dept. 2020]). The Court notes that each of the children have a trust account that were funded by the plaintiff's father and those accounts should continue to be maintained for the benefit of the children.

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. The parties shall split the number of children to be taken as a deduction during the years that an even number of children are eligible for a deduction. When there are only three children eligible to be taken as a deduction, the plaintiff shall be entitled to the deduction for two children in the first such year and the defendant shall be entitled to the deduction for two children in the second such year. 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 parties shall alternate until no children are eligible to be taken as a deduction. The plaintiff shall be entitled to the aforementioned 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.

Prior to the marriage the parties entered into a prenuptial agreement that effect the equitable distribution of property. The prenuptial agreement provides, inter alia, that "all property, real and personal, wherever located, however held, in which [the parties have] a legal or equitable interest prior to the marriage, or in which either party acquires a legal or equitable interest or a power after their marriage by any means, from any source, and whether with or [*13]without consideration (including, but not limited to, the income from and increase in value of such property whether or not any portion of the income or increase in value can be attributable in whole or part to the efforts of the other party, property acquired by gift, legacy or descent, and all insurance on the life of an owned by either party, but specifically not including the earnings of each party, the rights and benefits of each party under any pension, profit-sharing, stock bonus, employee benefit or retirement plan or trust, individual retirement account or any other employment-related compensation arrangement), is now and shall continue to be separate and non-marital property of the respective parties and is not and shall not become marital property."^[FN29]

The prenuptial agreement further provides that upon the entry of a judgment of divorce, each party shall be awarded his or her separate property and one-half of the net marital property (id. at Article 5). It states that before equitably distributing the parties' marital property, marital debts shall be paid using marital assets. With respect to "art, household furniture and furnishings, and antiques, each party shall receive a representative share of each class of such assets, valued as of the date of entry of the judgment" (id.).

The Marital Residence

The parties purchased the marital residence in July 2014 for $1,650,000. The defendant does not dispute that the plaintiff made separate property contributions in the total amount of $721,215 from his Glenmede trust to pay the down payment and closing costs for the purchase of the marital residence. ^[FN30] Those funds were transferred to the parties' joint checking account solely for that purpose. The defendant's name was added to that account only one month prior in June 2014.^[FN31] The parties also obtained a mortgage dated July 31, 2014, in the principal amount of $990,000 (hereinafter the 2014 mortgage), to pay the balance of the purchase price.

The defendant also does not dispute that between 2014 and 2016, approximately $589,000 was transferred, often at the defendant's request, from the Glenmede trust to the parties' joint checking account to pay for certain renovations and repairs to the marital residence.^[FN32] It is undisputed that the defendant has made no cash contributions from separate property toward the acquisition or improvement of the marital residence.

The parties subsequently obtained a second mortgage dated September 27, 2016, in the principal amount of $513,682.36, which was consolidated on that same date with the 2014 mortgage.^[FN33] The parties then withdrew $484,928.46 from the equity in the marital residence to cover the expenses associated with the gut renovation, and those monies were deposited in the parties' joint checking account.^[FN34]

The parties are in agreement that the marital residence must be sold. The marital residence shall be listed on the market for sale with a real estate broker mutually agreed upon by [*14]the parties within 30 days from the date of entry of the judgment of divorce. If the parties cannot agree on a broker, each party shall select a broker, both of whom will select a third broker, who will list the marital residence for sale. The parties shall accept any offer within 5% of the asking price. If the marital residence does not sell at the asking price within 60 days, the parties shall adjust the asking price as recommended by their broker.

In equitably distributing this marital asset, the Court is guided by the parties' prenuptial agreement. The prenuptial agreement provides that "if either party contributes his or her individual property to the acquisition or improvement of any property, real or personal, for the personal use of the parties, the title to which is taken in the names of both parties [the parties] agree that the equitable interest of each party in such property shall be in proportion to the value of his or her contribution."^[FN35] The value of a party's contribution is equal to that party's "actual cash contribution and no credit shall be given to either party for the value of personal services contributed to the improvement or acquisition of the property or at any time thereafter."^[FN36] The prenuptial agreement contemplates that, upon the sale of such property, "the net proceeds of any sale after deducting any applicable mortgage or other debt, shall be divided between the parties in proportion to the value of each party's cash contribution to such property."^[FN37]

Article Three of the prenuptial agreement provides that the parties "may agree to sell the existing Principal Residence," which, at that time, was the Chicago property, "and purchase a new Principal Residence that shall be subject to the terms and provisions of this agreement."^[FN38] The plaintiff held title to a 45.7% interest in the Chicago property, which represented his cash contribution of separate property toward its acquisition, and the remaining 54.3% interest was held by the parties as joint tenants with a right of survivorship or as tenants by the entirety. It was contemplated that if the parties' sold the Chicago property and another residence was not purchased, or the cost of the new residence is less than the net proceeds from the sale of the Chicago property, the plaintiff would receive a credit in the amount of $252,500, for his separate property contribution toward the acquisition of the Chicago property, and that the balance would be distributed such that the plaintiff receives as his separate property a proportionate share of the proceeds equal to his 45.7% interest, and the remaining proceeds would be deposited in a joint account. Article Three further states that "the parties contemplate paying for all expenses related to the Principal Residence from a joint account" and that "[t]he parties agree to use marital property funds for expenses related to the Principal Residence, including but not limited to costs of improvement, maintenance and repair of the Principal Residence."^[FN39]

The Court finds that pursuant to the terms of the prenuptial agreement, upon the sale of the marital residence, after deducting the outstanding balance remaining on the mortgage of approximately $1,300,000, the plaintiff is entitled to a credit for his cash contribution of separate property in the total amount of approximately $1,310,215, and the remaining proceeds, if any, must be divided in proportion to the value of each party's cash contribution to the marital [*15]residence. As set forth above, the evidence adduced at trial demonstrated that the plaintiff contributed from his Glenmede trust the amount of $721,215 to pay the down payment and closing costs of the marital residence, and an additional $589,000 toward various improvements, whereas the defendant made no cash contributions from her individual property.

The Court rejects the defendant's contention that the plaintiff's cash contributions toward the acquisition and improvement of the marital residence lost its separate character when the funds were deposited in the parties' joint checking account. The evidence adduced at trial, including the parties' testimony and account statements, demonstrated that the funds were transferred from the Glenmede trust to the parties' joint checking account as a matter of convenience and "only as a conduit" to pay the down payment, closing costs, and improvements to the marital residence (Lapoint v Claypoole, 195 AD3d 1541, 1541 [4th Dept. 2021] ["defendant offered uncontroverted testimony supported by documentary evidence, that he placed funds acquired from the sale of stocks he had purchased prior to the marriage into the parties' joint bank account because it was his only checking account and he could not access the funds directly from the platform from which he sold the stock"]; see Westreich v Westreich, 169 AD3d 972, 978-979 [2d Dept. 2019] ["there is no evidence that refutes the defendant's contention that his interest in the Westfield account was premarital, separate property, and there is no evidence that the funds used to provide the cash component of the purchase price of the marital residence did, or even could have, come from any marital property"]). It is undisputed that the funds were transferred from the Glenmede trust to the parties' joint checking account because it was the plaintiff's only checking account between 2014 and 2016. To the extent that the prenuptial agreement provides that the parties agree to use marital property funds deposited in the parties' joint account for expenses related to the marital residence, the evidence adduced at trial unequivocally established that there were insufficient marital funds to cover those costs and that the parties relied on transfers from the plaintiff's separate property to pay for a large portion of those expenses.

Throughout these proceedings the parties had represented that the marital residence has a fair market value of approximately $1,800,000. In her statement of proposed disposition, the defendant claims that the marital residence was worth between $1,900,000 and $2,000,000. Under either scenario, it is noted that the net sale proceeds will be far less than the plaintiff's separate property contribution of over $1,300,000 toward the acquisition and improvement of the marital residence.^[FN40]

Furthermore, the plaintiff is entitled to a credit against the proceeds of the sale of the marital residence for the money that he paid to reduce the balance of the mortgage during the pendency of the action (see Morales v Carvajal, 153 AD3d 514, 514-515 [2d Dept. 2017]).

Retirement Accounts

The plaintiff insists that since the parties' respective retirement accounts were funded by the Glenmede trust, those assets constitute his separate property and are not subject to equalization. He emphasizes that it was the defendant's position, as evidenced by her notice to admit, that the retirement accounts are, in fact, his separate property. The plaintiff contends that he should receive a 100% credit for his separate property contribution to the defendant's retirement accounts, and a credit for the $17,000 he paid in taxes as a result of the defendant's early liquidation of those assets.

The defendant asserts that pursuant to the prenuptial agreement, she is entitled to a one-half share of the marital portion of the plaintiff's retirement accounts. She further contends that her retirement accounts should be "deemed equally split,"^[FN41] arguing that she was forced to liquidate her retirement accounts because the plaintiff did not provide adequate support during the pendency of this action.

Although it is undisputed that the parties' respective retirement accounts were funded by the Glenmede trust, as the plaintiff concedes, the prenuptial agreement explicitly carves out "the rights and benefits of each party under any individual retirement account" from constituting separate and non-marital property.

Thus, 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.

With respect to the defendant's retirement accounts, the defendant testified that she liquidated the approximate $49,000 in those accounts to pay for, among other things, her attorney's retainer fee, dental surgery, and certain child expenses. Based on the terms of the prenuptial agreement, and under the circumstances of this case, the Court declines to issue a credit to the plaintiff for his separate property contribution to the defendant's retirement accounts. Nevertheless, in light of the evidence that the defendant used a portion of those funds to pay for certain elective cosmetic procedures and given that the plaintiff shouldered the cost of all of the carrying charges of the marital residence, in addition to depositing certain sums of money in the parties' joint checking account each month for the defendant's use, the Court finds that it is inequitable for the plaintiff to have absorbed the entire tax penalty associated with the defendant's early liquidation of those assets. Thus, the plaintiff is entitled to a credit in the amount of $8,500, representing one-half of the cost of the tax penalty.

The parties agree that the joint checking account held at Chase should be divided equally between them. Pursuant to the stipulation placed on the record in Court on December 3, 2021, the plaintiff is entitled to a credit from January 2022, through the date of entry of the judgment of divorce, for all sums paid by him for the defendant's hotel expenses, which were incurred to effectuate the terms of the parties' parenting agreement.

Each party shall retain any bank accounts that are held in their respective individual name. The plaintiff's Glenmede accounts shall remain his separate property.

It is further noted that the trusts that were set up by the plaintiff's father for the benefit of the parties' children are not subject to equitable distribution.

It is undisputed that the cash surrender values of the parties' respective life insurance policies constitute separate property under Article One of the prenuptial agreement. Should the defendant wish to maintain her current life insurance policy, she shall be responsible for the premium payments due thereunder, but she is not obligated to do so.

Finally, each party shall be responsible for any credit card or other debt in his or her name.

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 the parties' furniture and household furnishings be equally divided between the parties, and that he be permitted to retain any artwork and furniture gifted by his mother. The defendant has taken no position with respect to the distribution of the parties' personal property, jewelry, furniture, and furnishings in the marital residence.

Each party shall be permitted to retain possession of any items gifted by his or her respective family as part of an equal division of the furniture, artwork, and furnishings in the marital residence. The remaining furniture, artwork, and furnishings shall be divided between the parties equally. If the parties are unable to amicably divide those items, the parties shall flip a coin to determine who goes first, and then each party will take turns picking one item. Any leftover furniture and household furnishings may be sold prior to the closing of the sale of the marital residence, and the proceeds are to be divided equally between the parties.

Each party shall retain his or her personal property, jewelry, and clothing.

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, pursuant to the terms of the parties' parenting agreement dated August 22, 2021, the parties are awarded joint legal custody of the children, the defendant is awarded residential custody, and the father is awarded physical access; and it is further,

ORDERED that the plaintiff shall pay maintenance to the defendant in the amount of $3,125 per month, for a period of 4 years from the date of the closing of the sale of the marital residence. 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 child support to the defendant in the amount of $7,911.46. The plaintiff's child support payments shall commence upon the closing of the sale of the marital residence. Upon the termination of maintenance, child support shall be recalculated. Child support shall also be recalculated upon the emancipation of each child; and it is further,

ORDERED that the plaintiff shall maintain a life insurance policy in an amount sufficient to secure the payment of child support and maintenance until payment of child support and maintenance are completed; 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 87.5% of those expenses, and the defendant shall be responsible for 12.5% of those expenses; and it is further,

ORDERED that the plaintiff shall maintain health insurance for the children. The defendant is directed to pay her 12.5% 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 87.5% of those expenses, and the defendant shall be responsible for 12.5% of those expenses; and it is further,

ORDERED that the plaintiff shall be responsible for 100% of the cost for the twins to attend preschool for the remaining year; and it is further,

ORDERED that the parties shall split the number of children to be taken as a deduction during the years that an even number of children are eligible for a deduction. When there are only three children eligible to be taken as a deduction, the plaintiff shall be entitled to the deduction for two children in the first such year and the defendant shall be entitled to the deduction for two children in the second such year. 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 parties shall alternate until no children are eligible to be taken as a deduction. The plaintiff shall be entitled to the aforementioned 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 marital residence shall be listed on the market for sale with a real estate broker mutually agreed upon by the parties within 30 days from the date of entry of the judgment of divorce. If the parties cannot agree on a broker, each party shall select a broker, both of whom will select a third broker, who will list the marital residence for sale. The parties shall accept any offer within 5% of the asking price. If the marital residence does not sell at the asking price within 60 days, the parties shall adjust the asking price as recommended by their broker; and it is further,

ORDERED that pursuant to the parties' prenuptial agreement, upon the sale of the marital residence, after deducting the outstanding balance remaining on the mortgage of approximately $1,300,000, the plaintiff is entitled to a credit for his cash contribution of separate property in the total amount of approximately $1,310,215, and the remaining proceeds, if any, must be divided in proportion to the value of each party's cash contribution to the marital residence; 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 the balance held in the parties' joint checking account shall be divided equally between them within 60 days of the dated of this Decision After Trial; and it is further,

ORDERED that each party shall retain any bank accounts that are held in their respective individual name; and it is further,

ORDERED that the plaintiff is entitled to a credit in the amount of $8,000, representing a one-half share of the tax penalty associated with the early liquidation by the defendant of her retirement accounts; and it is further,

ORDERED that pursuant to the stipulation placed on the record in Court on December 3, 2021, the plaintiff is entitled to a credit from January 2022, through the date of entry of the judgment of divorce, for all sums paid by him for the defendant's hotel expenses, which were incurred to effectuate the terms of the parties' parenting agreement; and it is further,

ORDERED that the parties are permitted to retain possession of any items gifted by his or her respective family as part of an equal division of the furniture, artwork, and furnishings in the marital residence. The remaining furniture, artwork, and furnishings shall be divided between the parties equally; and it is further,

ORDERED that each party shall retain his or her personal property, jewelry, and clothing; 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.