On July 11, 2022, a nonjury trial was held as to certain issues concerning, inter alia, equitable distribution, maintenance, and child support, at which the defendant appeared pro se ^[FN1] and the plaintiff was represented by counsel. 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 parties were married on September 16, 2012, and are the parents of two unemancipated children, ages 18 and 7 at the time of trial (hereinafter together the children). In November 2020, the parties signed a collaborative divorce participation agreement, pursuant to which they agreed to "utilize the collaborative process to obtain a full settlement agreement and uncontested divorce."^[FN2]

In a stipulation dated December 21, 2020, the parties agreed, inter alia, that if either party commences an action for divorce, "the Court shall determine equitable distribution and a distributive award, if any, as if the matrimonial action had been commenced on November 16, 2020."^[FN3] The stipulation also provided that "[i]t is the parties' intention for the [plaintiff] to be credited for any fees advanced by her out of the [defendant's] share of assets when equitable distribution is determined by agreement or court order."^[FN4]

In May 2021, the plaintiff commenced this action for divorce upon the filing of a summons with notice, 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. A verified complaint was filed on June 7, 2021, and issue was joined by the service of a verified answer on June 24, 2021, which, inter alia, contained a counterclaim seeking a divorce pursuant to DRL § 170(7).

On May 14, 2021, a temporary order of protection was issued in favor of the plaintiff on behalf of the children and against the defendant. The parties subsequently entered into a stipulation dated June 17, 2021, which provided for parental access between the defendant and the parties' youngest child. On June 30, 2021, the Court so-ordered a stipulation, pursuant to which the parties agreed that the plaintiff may proceed on an uncontested basis to obtain a divorce under DRL § 170(7), and that the defendant would not interpose any defense or opposition thereto.

On October 25, 2021, the parties entered into a parenting agreement, pursuant to which it was agreed, among other things, that the parties shall share joint legal custody of the youngest child, with primary residential custody to the plaintiff and a parental access schedule for the defendant.

During the marriage, the parties resided with the children at XXXXXX, Dobbs Ferry, NY (hereinafter the marital residence), which was purchased in September 2012, for $470,000.

The plaintiff is employed as a CRA investment officer by TD Bank, N.A., and in 2021, earned wages in the amount of $232,490. On June 24, 2021, the plaintiff filed a statement of net worth (hereinafter SNW), listing monthly expenses totaling $19,163, and assets, which include inter alia, a joint TB Bank checking account with a balance as of November 16, 2020, of $6,141; an individual TD Bank checking account with a balance as of November 16, 2020, of $763; a Capital One savings account with a balance as of November 16, 2020, of $24,216; the marital residence; three retirement accounts with a total value as of November 16, 2020, of $731,803; and several investment accounts, securities, and stock options.

On July 27, 2021, the defendant filed a SNW, wherein he indicated that he was unemployed, but "attempting to start a business," and receives $17,130 in unemployment [*2]insurance benefits.^[FN5] The defendant listed monthly expenses totaling $12,599, and assets, which include an individual Chase Bank Business checking account with a current balance of $2,376; a joint TD Bank checking account with a current balance of $6,995; the martial residence; and interest in a business known as Force Field Corp., LLC.

Prior to trial, the plaintiff's attorney filed a "stipulation of relevant facts," which was not signed by the defendant, stating, among other things, that the remaining balance due on the mortgage on the marital residence is approximately $227,000, that the parties owe $36,626 to the Internal Revenue Service (hereinafter the IRS) and $5,232 to New York State Department of Taxation (hereinafter NYS), that the defendant owns businesses known as "Forcefield Nature Cures" and "Limousine Services," and that he works for "IDrive." The plaintiff's attorney also listed six accounts that are purportedly the plaintiff's separate property.

In a proposed statement of disposition, the plaintiff's attorney claimed that the defendant wastefully dissipated $30,565 of marital assets through his gambling activity. She contended that the parties' bank accounts should be divided based on title ownership, and that the marital residence should be sold and the net proceeds divided equally between the parties, subject to certain credits to the plaintiff in the total amount of $174,192, representing, among other things, payments made by the plaintiff following the commencement of this action toward the mortgage on the marital residence, child care expenses, and the children's unreimbursed medical expenses and health insurance costs. The plaintiff's attorney also asserted that maintenance and child support should be calculated based on the statutory guidelines, taking into account payments made since the commencement of the action, and that income should be imputed to the defendant.

At trial, the plaintiff testified that she has known the defendant since she was twelve years old. She stated that the defendant did not attend college and, instead, worked in construction with his uncle and found other work through a temp agency. The plaintiff testified that she bailed the defendant out of jail on several occasions, and that he lived with her and their eldest son intermittently between 2004 and 2008. During that time, the parties and the eldest child were residing in an apartment located in Washington Heights (hereinafter the Washington Heights apartment), which the plaintiff stated was purchased using her premarital funds. The plaintiff stated that in around 2005, the defendant gave her $110,000 in cash, of which $50,000 was put toward the eldest child's college fund and $66,000 was deposited in a sub-account entitled "D.A." under the plaintiff's Capital One savings account.^[FN6]

The plaintiff testified that in 2008, the defendant left the marital residence and took all of his belongings. At that time, the defendant "had a bar," where he "had dancers and [] sold liquor," and saw the eldest child only "once in a while on the weekends."^[FN7] The parties reconciled in 2011, and the plaintiff and the eldest child moved in with the defendant in his apartment in the Bronx. When the parties married in September 2012, the defendant was working as a handyman [*3]and for "iDrive," but "was always looking for a job or coming up with a new business idea."^[FN8] The plaintiff testified that throughout the marriage the defendant was "underemployed."^[FN9] The plaintiff has worked in banking ever since she graduated from college and has been employed at TD Bank since July 2012, earning a salary of $182,500, plus a performance bonus. She testified that during the marriage, the parties' living expenses were paid from their joint checking account, which was almost entirely funded by her salary, and by incurring debt on their credit cards. The plaintiff acknowledged that the defendant sometimes used cash to occasionally pay for clothing, groceries, and recreational activities. The plaintiff stated that she pays the defendant's credit card bills and had set up an automatic monthly payment.

In October 2013, the plaintiff sold the Washington Heights apartment and received net sale proceeds of $262,000, which she deposited in the parties' joint checking account. With respect to the marital residence, the plaintiff stated that the defendant contributed $40,000 from his sub-account toward the downpayment, and the plaintiff contributed $72,000 toward its purchase. She noted that the balance of the mortgage on the marital residence is approximately $227,000. The plaintiff acknowledged that the defendant used his own cash to pay for certain improvements to the marital residence before they moved in.

The plaintiff stated that between August 2017 and the first half of 2019, the defendant's income from iDrive was deposited into the parties' joint checking account. In April 2018, however, the defendant "redirected [his salary] to his individual checking account."^[FN10] The plaintiff testified that in March 2018, the defendant had "gambled all of [their] savings" and "left [their] joint account at [$1.76]." ^[FN11] The plaintiff estimated, based on her review of the parties' bank account and credit card statements, that the defendant had spent approximately $30,000 gambling, but surmises that it was "probably more."^[FN12] She stated that between 2018 and 2020, she borrowed $142,000 from the eldest child's college savings account to pay the parties' credit card debt. The plaintiff asserted that the cash earned by the defendant working as a handyman was deposited in his individual checking account. During the course of the litigation, the plaintiff learned that the defendant had numerous bank accounts and several credit cards of which she was not aware.

The plaintiff stated that her mother lived with the parties and the children during the week to help provide child care while she was at work. The plaintiff stated that the defendant occasionally cared for the children, but was not reliable. She explained that on a "weekly basis" the defendant "was either drunk or he was out gambling."^[FN13] In November 2017, the plaintiff enrolled the youngest child in daycare, and she uses her credit card to pay for that expense.

The plaintiff testified that in February 2018, the defendant accused her of infidelity and "put a gun to [her] head" in front of the youngest child.^[FN14] She did not call the police after that incident. The plaintiff stated that throughout the marriage, there was "emotional abuse, [*4]manipulation."^[FN15] The plaintiff testified that she decided to get a divorce in May 2020, after the defendant punched the eldest child. She stated that the eldest child was admitted to a psychiatric hospital for 10 days. The plaintiff attributed his mental health issues to the "abuse he endured at home by [the defendant]."^[FN16] The plaintiff testified that the eldest child is thriving now that the defendant is no longer residing in the marital residence, and is attending Skidmore College.

The plaintiff testified that between November 2020 and July 2022, she paid $82,446.79 toward the carrying charges and "HOH" fees on the marital residence, and for various repairs. She stated that the defendant made no payments toward those expenses. The plaintiff also testified that she contributed $40,000 of separate property toward the mortgage on the marital residence. She indicated that she intends to sell the marital residence, and expects that the parties will incur approximately $10,400 in readying it for sale. The plaintiff stated that the parties were audited by the IRS in 2020, and that she learned the defendant had "sold a large amount of stocks and there was a $66,000 gain," which resulted in $33,697 of tax liability to the IRS and $5,064.69 of tax liability to the NYS.^[FN17] The plaintiff testified that she satisfied the NYS tax liability and has been paying $550 per month toward the IRS tax liability. The defendant has made no contributions toward that debt. She stated that she gave the defendant access to her "ShareBuilder" investment account, which she opened in 2016, and that she lost over $200,000 as a result of the defendant's investments "in all these random stocks."^[FN18]

The plaintiff testified that in October 2021, she transferred title to a 2010 Mercedes-Benz to the defendant because "in a matter of three months, he received over $1,000 in tickets which [she] had to pay for because the car was still under [her] name."^[FN19] The defendant contributed between $10,000 and $15,000 toward the purchase of that car, but the plaintiff made the monthly payments until it was paid off. The plaintiff testified that since the commencement of this action, she has paid $24,622.45 toward the defendant's credit card debt "on two Chase accounts and a Discover credit card" and certain "dental debt" he incurred in May 2018.^[FN20] The plaintiff acknowledged that her payments included $16,700 of the defendant's unemployment compensation. The plaintiff further testified that she has paid for all child care, add-on, health insurance, and unreimbursed medical expenses for the children since the commencement of this action.

According to the plaintiff, the defendant's business known as "Force Field Nature's Cure" is "doing very well" and "[she] see[s] the product in many stores in Washington Heights and stores and pharmacies and it has a very robust online presence as well."^[FN21] She noted that during the pandemic, the defendant received a $41,400 "PPP loan," and an additional $4,000 "for a limousine service that seemed to have been forgiven."^[FN22] The plaintiff testified that the defendant was offered a job to work as a handyman for "Children's Village" in Dobbs Ferry, and [*5]that one of the "perks" was subsidized child care, but he declined.^[FN23]

On cross-examination, the plaintiff denied that the defendant had given her $300,000 to pay for her master's degree and to loan money to members of her family. The plaintiff acknowledged that the defendant married her "to secure [his] investment in the [marital residence]."^[FN24]

The defendant rested without submitting any direct evidence or testimony.

In a closing statement, the plaintiff's attorney emphasized that the evidence adduced at trial demonstrated that the plaintiff fully supported the family throughout the marriage and was forced to "deplete[] her personal assets," while the defendant remained underemployed, gambled, drank alcohol, and "drained the parties' joint bank account."^[FN25] She noted that the defendant was abusive, incurred significant debt, and "showed little to no regard for the family's well-being."^[FN26]

The plaintiff's attorney asserted, inter alia, that the defendant failed to rebut the plaintiff's evidentiary showing that her Vanguard HSBC 401(K), Bank of America 401(K), Computershare, Baron Investment Fund, Guinness Investment Fund, Nuveen TIAA-CREF accounts constitute the plaintiff's premarital, separate property.^[FN27] She stated that the marital residence should be sold, and the net proceeds should be divided equally between the parties, subject to certain credits to which the plaintiff is entitled in the total amount of $150,341. The plaintiff's attorney noted that since the commencement of this action, the plaintiff has paid all of the carrying charges on the marital residence, and is seeking a credit representing the defendant's one-half share of those costs.

The plaintiff's attorney further argued that although the tax debt is in the plaintiff's name only, the evidence adduced at trial demonstrated that it was incurred by the defendant after he "surreptitiously" sold certain stocks in the plaintiff's "Sharebuilder investment" account.^[FN28] She also contended that the plaintiff is entitled to credits in the amount of $2,865, which is one-half of the Kelly Blue Book value of the 2010 Mercedes Benz in the defendant's possession; $1,100.29, as reimbursement for the parking tickets received by the defendant and paid by her; and $7,840.45, as reimbursement for the plaintiff's post-commencement payments toward the defendant's credit card and dental debt. The plaintiff's attorney argued that the Court should award the plaintiff a credit in the amount of $30,656 based on the defendant's wasteful dissipation of marital assets.

The plaintiff's attorney contended that for purposes of child support and maintenance, the Court should impute income to the defendant in the amount of $50,000, since the defendant [*6]failed to provide an updated statement of net worth, failed to provide any evidence regarding his efforts to obtain gainful employment, and failed to provide any evidence of his actual income. She asserted that the defendant should be awarded maintenance in the amount of $4,216 for a period of 1.3 years retroactive to the date of commencement (i.e. November 16, 2020). With respect to child support, the plaintiff's attorney argued that the defendant should be ordered to pay to the plaintiff $2,102 per month in child support, and a 35% pro rata share of statutory add-on expenses from the date of commencement for a period of 15 months. Upon the termination of the plaintiff's maintenance obligation (i.e. February 16, 2022), the defendant's child support obligation should be reduced to $601 per month, and his pro rata share of statutory add-on expenses should be reduced to 18%. The plaintiff's attorney noted that the defendant's pro rata share of post-commencement educational costs, child care expenses, health insurance costs, and unreimbursed medical expenses amounts to $8,349. According to the plaintiff's attorney, the plaintiff owes the defendant $19,755 in maintenance, if her maintenance obligation is offset by the amount of child support arrears owed by the defendant. She proposed that the defendant be alleviated from paying the eldest child's college expenses for the 2022/2023 school year, and that thereafter, the defendant should pay an 18% pro rata share of college expenses.

In a closing statement, the defendant argued that it was the plaintiff who was "funneling money all over the place" and that the plaintiff's allegations of abuse were determined to be unfounded by Child Protective Services. He claimed that he gave the plaintiff $110,000 to use toward the purchase of the Washington Heights apartment and that "[the] [p]laintiff fooled [him] and told [him] that because [he doesn't] have credit she is the only one who can be on the deed in order to get a mortgage and a low interest rate."^[FN29] The defendant argued that the plaintiff admitted at trial that the only reason he married her, which was one week prior to the closing on the marital residence, was to protect his equity interest in the property. According to the defendant, he was "always the main caregiver of [the children]," "took amazing care of [the children]" and "even saved their lives numerous [] times."^[FN30] He insisted that he contributed money toward the closing on the marital residence, and paid more than $150,000 in renovations. The defendant seeks a credit for that contribution.

The defendant argued that the plaintiff "didn't allow [him] to work" because he had to stay home to care for the children.^[FN31] He asserted that the plaintiff's separate property claims are specious given that the parties have been in a relationship for over 32 years. The defendant claimed that the plaintiff failed to submit any evidence demonstrating that her accounts were premarital and that those assets were not commingled with marital funds. He stated that although he "had some success" from his business, "Force Field Corp," the "business went to shambles" when he was removed from the marital residence.^[FN32]

The defendant asserted that the plaintiff's testimony that she was unaware of the gains from the sale of certain stock is not credible since it "was her sole account which she constantly kept tabs on and had plenty of notifications from E-Trade and emails."^[FN33] He argued that the [*7]plaintiff should be responsible for a one-half share of the tax debt. The defendant contended, among other things, that he should receive credits in the amounts of $21,000, representing his alleged contribution toward the purchase of the plaintiff's Lexus, which she purportedly sold and kept all of the proceeds; and $130,000, representing a one-half share of the proceeds from the sale of the Washington Heights apartment in 2013. He argued that the plaintiff is the monied spouse and should pay the fees of his former counsel, which totaled $37,000. The defendant claimed that all of his post-commencement debt was paid using his unemployment compensation.

As stated above, the parties entered into a so-ordered stipulation in June 2021, resolving the issue of grounds for divorce. Accordingly, the Court grants the plaintiff a divorce on the ground set forth in DRL § 170(7).

Furthermore, pursuant to the parenting agreement dated October 25, 2021, the parties are awarded joint legal custody of the youngest child, with primary residential custody to the plaintiff and certain parental access to the defendant.

"Equitable distribution presents issues of fact to be resolved by the trial court and should not be disturbed on appeal unless shown to be an improvident exercise of discretion" (Santamaria v Santamaria, 177 AD3d 802, 804 [2d Dept. 2019]; see Kaufman v Kaufman, 189 AD3d 31, 56 [2d Dept. 2020]). Where, as here, "a determination as to equitable distribution has been made after a nonjury trial, the trial court's assessment of the credibility of witnesses and the proffered items of evidence is afforded great weight on appeal" (id.; see Sufia v Khalique, 189 AD3d 1499, 1500 [2d Dept. 2020]).

Equitable distribution of marital property does not necessarily mean equal distribution (see Santamaria v Santamaria, 177 AD3d at 804; Culen v Culen, 157 AD3d 926, 929 [2d Dept. 2018]). Rather, "[t]he equitable distribution of marital assets must be based on the circumstances of the particular case and the consideration of a number of statutory factors" (id.; see Domestic Relations Law § 236[B][5][d]; Shvalb v Rubinshtein, 204 AD3d 1059, 1061 [2d Dept. 2022]). "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 Domestic Relations Law § 236[B][5][d]).

After consideration of the relevant statutory factors, including, inter alia, the duration of the marriage, the disparity in the income and property of the parties, the defendant's minimal direct and indirect contributions to the marriage, and the award of maintenance (see Domestic Relations Law § 236[B][5][d]), the Court orders that the marital residence be sold, and the net [*8]proceeds be divided equally between the parties, subject to certain credits set forth below.

In particular, the defendant is entitled to a credit in the amount of $40,000 against the net proceeds from the sale of the marital residence since, by the plaintiff's own admission, the defendant contributed $40,000 of his separate property - which was held in a sub-account entitled "D.A." - toward the acquisition of that property. The plaintiff is entitled to a credit in the amount of $112,000, representing her separate property contributions of $72,000 toward the downpayment and closing costs, and $40,000, in June 2014, to pay down the mortgage on the marital residence.

In addition, the plaintiff is entitled to a credit against the sale proceeds for payments made by her to reduce the principal balance of the mortgage on the marital residence since November 16, 2020, the effective date of the commencement 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's submissions, however, do not set forth the total amount paid by her which reduced the mortgage principal, and the Court declines to award the plaintiff a credit representing a one-half share of the total mortgage payments made by her during the pendency of this action. The plaintiff provided uncontroverted proof to the Court that the defendant has made no payments on the mortgage during the pendency of this action, or prior thereto for that matter. The plaintiff is directed to present written proof to the defendant of the amounts she paid to reduce the principal balance of the mortgage within 7 days prior to the closing on the marital residence.

While "[e]xpenses incurred after the commencement of an action for a divorce are, in general, the responsibility of the party who incurred the debt," "[e]xpenses incurred prior to the commencement of an action for a divorce are marital debt to be equally shared by the parties upon an offer of proof that they represent marital expenses" (Epstein v Messner, 73 AD3d 843, 845 [2d Dept. 2010]). "However, the court has broad discretion in allocating the assets and debts of the parties to a matrimonial action, and 'liability for the payment of marital debts need not be equally apportioned but may be distributed in accordance with the [equitable distribution] factors set forth in Domestic Relations Law § 236(B)(5)(d)'" (Minervini v Minervini, 152 AD3d 666, 668 [2d Dept. 2017] [citations omitted], quoting Lewis v Lewis, 6 AD3d 837, 839-840 [3d Dept. 2004]).

The Court declines to award the plaintiff a credit for payments she made toward the "HOH" fees after the date of commencement of this action and for the $1,300 of repairs to the marital residence incurred in October 2021. The defendant has not resided at the marital residence since May 2021, and, by her own testimony, the plaintiff credibly established that she paid for all of the parties' expenses during the marriage. The plaintiff consistently testified that the parties' expenses were paid from their joint checking account, which was almost entirely funded by her salary, and by incurring debt on their credit cards, whereas the defendant occasionally paid for clothing and other miscellaneous items. The evidence also demonstrated that the earning capacity of the plaintiff is far greater than the earning capacity of the defendant, and that the HOH fees and cost of repairs were relatively minimal in relation to her annual income (see Bari v Bari, 200 AD3d 835, 839 [2d Dept. 2021]).

Nevertheless, the Court orders the defendant to pay a one-half share of the costs incurred by the plaintiff in readying the marital residence for sale, which she estimates will be approximately $10,600. The plaintiff is directed to present written proof to the defendant of the costs incurred and payment thereof, and the defendant is directed to reimburse the plaintiff by [*9]contributing his pro rata share within 45 days thereafter.

The plaintiff is entitled to a credit in the amount of $19,380, representing the defendant's one-half share of the tax debt incurred in connection with the sale of certain stock by the defendant. The Court declines to make a finding that the plaintiff is entitled to full reimbursement. The plaintiff admittedly gave the defendant access to her investment account and the Court finds it somewhat incredible, given her financial acumen, that she was unaware of the defendant's trading activities.

In addition, pursuant to the express terms of the parties' stipulation dated December 21, 2020, the plaintiff is entitled to a credit in the amount of $5,818, representing the defendant's one-half share of "all fees relating to the collaborative process" that had been paid for by the plaintiff.^[FN34] Contrary to the defendant's contention, there is no evidence in the record that any of the fees incurred in connection with the collaborative process were unreasonable.

The plaintiff is also entitled to a credit in the amount of $2,865, which is one-half of the Kelly Blue Book value of the 2010 Mercedes Benz in the defendant's possession. At trial, the plaintiff testified that the defendant paid between $10,000 and $15,000 toward the purchase of that vehicle, and that she made the monthly payments until it was paid off. The plaintiff also testified that she transferred title of the vehicle to the defendant after the commencement of this action because the defendant incurred numerous speeding and parking tickets, for which she paid a total of $1,100.29. The defendant did not refute the plaintiff's testimony and, therefore, the plaintiff is entitled to 100% reimbursement for that expense (see Nerayoff v Rokhsar, 168 AD3d 1071, 1076-1077 [2d Dept. 2019] [stating that expenses incurred after the commencement of a matrimonial action are the responsibility of the party who incurred them"]). Likewise, the plaintiff is entitled to a credit in the amount of $7,840.45, based on uncontroverted evidence that the defendant incurred $24,622.45 of post-commencement credit card and dental debt, and that she paid $7,840.45 toward the satisfaction of that debt.

The Court further finds that the plaintiff met her burden of proving by a preponderance of the evidence that the defendant wastefully dissipated substantial sums of money through his gambling activity (see Renck v Renck, 131 AD3d 1146, 1149-1150 [2d Dept. 2015]; Kerley v Kerley, 131 AD3d 1124, 1125-1126 [2d Dept. 2015]). The plaintiff testified that the defendant frequently gambled at "Empire Casino," and that he drained the parties' joint bank account, leaving a balance of $1.76. The plaintiff submitted bank statements and credit card statements substantiating that the defendant dissipated $30,565 through his gambling activity, though she testified that the precise amount was significantly greater given the defendant's numerous unexplained and unaccounted for cash withdrawals. Under these circumstances, the plaintiff established her entitlement to a credit in the amount of $30,565.

Thus, after deducting the $40,000 credit to which the defendant is owed for his separate property contribution toward the purchase of the marital residence, the plaintiff is entitled to credits against the net sale proceeds of the marital residence in the total amount of $139,568.74 (179,568.74 - $40,000).

Finally, contrary to the defendant's contention, the plaintiff met her burden of demonstrating that her Vanguard HSBC 401(K), Bank of America 401(K), Computershare, Baron Investment Fund, Guinness Investment Fund, Nuveen TIAA-CREF accounts constitute [*10]the plaintiff's premarital, separate property inasmuch as they were all created prior to the marriage. The Court rejects the defendant's self-serving, unsupported claim that the funds were commingled with marital assets simply because the parties have been in an on-again-off-again relationship for over 30 years. Moreover, the Court finds that a single deposit in the amount of $400 by the plaintiff into her Guinness Investment Fund account during the marriage did not transmute that asset into marital property.

"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 have been in a turbulent relationship for more than three decades, but were married for 8 years, and 2 months as of the date of commencement. At the time of trial, the parties were both 45 years old and in good health. The record shows that the plaintiff has been employed in banking since she graduated from college, has amassed some assets, and has worked at TD Bank since 2012. The plaintiff's 2021 federal income tax return indicates that she earned annual wages of $232,490.

Conversely, there was no evidence in the record that the defendant has ever had stable employment. The plaintiff testified that the defendant has worked as a handyman, was employed sporadically at iDrive, and at one point, owned a bar. She emphasized that the defendant was underemployed throughout the marriage, and that he used cash to occasionally pay for various miscellaneous expenses. There was no evidence in the record establishing whether the defendant's business venture, Force Field Corp., was ever profitable; any efforts by the defendant to obtain employment; or the defendant's salary history. Rather, the record demonstrates that the defendant's income stream is limited to unemployment compensation. Moreover, the plaintiff repeatedly testified that she paid the parties' living expenses from their joint checking account, which was almost entirely funded by her salary, and by incurring debt on their credit cards, and that she paid the defendant's credit card bills and other debts. The Court declines to impute income to the defendant in the amount of $50,000, on the ground that he earned $4,751.26, in one month more than four years ago. Under these circumstances, the Court imputes income to the defendant in the amount of $35,000, which is based on his 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]).

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 [*11]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 $4,536.29 per month. Considering the relevant factors (see DRL § 236[B][6][e][1][a]-[o]), including the length of the parties' marriage, the present and future earning capacity of the parties, the wasteful dissipation of marital property, and the equitable distribution of marital property, the Court declines to award additional maintenance for income exceeding the cap since there is no basis for a finding that the plaintiff's maintenance obligation up to the income cap is unjust or inappropriate.

Based upon the duration of the 8-year, 2-month marriage, the plaintiff would be entitled to maintenance for a period of 15% to 30% of the length of the marriage, which is to 1 year, 3 months to 2 years, 5 months (see DRL § 236[b][6][f][1]). Under the circumstances of this case, including the parties' unstable relationship, the allegations of abuse and infidelity, and the minimal direct and indirect contributions made by the defendant to the marriage, the Court awards maintenance for the minimum period of 1 year, 3 months. After calculating the plaintiff's maintenance obligation retroactive to the date of commencement of the action, to wit, from November 16, 2020, through February 16, 2022, the defendant's total maintenance award is $68,044.35.

"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 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 $165,537.38, the defendant's annual income is $86,758, and the parties' combined parental income equals $252,295.38 (see DRL § 240[1-b][c][1]), of which the plaintiff's income comprises approximately 65% and the defendant's income 35%. 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 $40,750, of which approximately 35% is to be paid annually by the defendant, or $1,167.74 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, the modest standard of living enjoyed by the children during the marriage, and the disparity in the parties' respective incomes and education levels, the Court finds that the defendant's pro rata share of the basic child support obligation is just and appropriate.

Upon calculating the defendant's child support obligation between the date of commencement of the action and the termination of maintenance, to wit, November 16, 2020, through February 16, 2022, the defendant owes to the plaintiff a total of $17,516.10 in child support for that period.

Upon recalculating the defendant's child support obligation after the termination of the plaintiff's maintenance obligation, the plaintiff's income comprises 87.19% of the parties' combined parental income of $252,295.38, and the defendant's income comprises approximately 12.81%. 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 $40,750, of which approximately 12.81% is to be paid annually by the defendant, or $435.05 per month (see DRL § 240[1-b][c][2]).

Thus, from February 16, 2022, through November 16, 2022, the date of this Decision After Trial, the defendant owes a total of $3,915.45.

After offsetting the amount of maintenance owed by the plaintiff to the defendant between November 16, 2020, and February 16, 2022, by the amount of child support owed by the defendant to the plaintiff since November 16, 2020, the plaintiff owes to the defendant the amount of $46,612.80.

In addition, 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]). The defendant is directed to pay a 35% pro rata share of statutory add-on expenses and unreimbursed health care expenses for the period between November 16, 2020, and February 16, 2022, and a 12.81% pro rata share from February 16, 2022, to date.

Although the plaintiff contends that the defendant owes a total of $8,349 for add-on expenses, that calculation was based on a 35% pro rata share of the total amount of add-on expenses incurred since the date of commencement, notwithstanding that certain expenses set forth in trial exhibits 32, 35, and 36 were incurred after February 16, 2022, for which the defendant would only be responsible for a 12.81% pro rata share. The plaintiff's submissions also included college-related expenses for the eldest child. "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]).

The Court finds, based on the plaintiff's testimony and the documentary evidence admitted at trial, that the defendant owes to the plaintiff a total of $7,265.90, for statutory add-on expenses and unreimbursed health care expenses since the commencement of this action, which shall be deducted from the amount of maintenance owed by the plaintiff to the defendant ($46,612.80 - $7,265.90 = $39,346.90). The amount of maintenance owed by the plaintiff to the defendant shall be paid from her share of the net proceeds from the sale of the marital residence.

Furthermore, under the circumstances of this case, including the financial resources of the parties, the disparity in income between the parties, the defendant's low earning potential, and the plaintiff's admission that the defendant made little to no financial contributions during [*12]the marriage or after the birth of the eldest child for that matter, the Court declines to direct the defendant to pay a share of the eldest child's educational expenses (see DRL § 240[1-b][c][7]; Morille-Hinds v Hinds, 169 AD3d at 900). Given the age of the youngest child, it is premature at this juncture to address the payment of any future college expenses on his behalf (see Spinner v Spinner, 188 AD3d 748, 752 [2d Dept. 2020]).

The defendant's basic child support obligation in the amount of $435.05 per month is to be paid to the plaintiff by the 3rd day of each month, commencing December 3, 2022. Upon emancipation of the eldest child, child support shall be recalculated.

All other 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 parenting agreement dated October 25, 2021, the parties are awarded joint legal custody of the youngest child, with primary residential custody to the plaintiff and certain parental access to the defendant; and it if further,

ORDERED that the marital residence shall be sold, and the net proceeds are to be divided equally between the parties, subject to credits in the total amount of $139,568.74 to the plaintiff; and it is further,

ORDERED that the plaintiff is entitled to an additional credit against the net proceeds of the sale of the marital residence for payments made by her to reduce the principal balance of the mortgage on the marital residence since November 16, 2020. The plaintiff is directed to present written proof to the defendant of the amounts she paid to reduce the principal balance of the mortgage within 7 days prior to the closing on the marital residence; and it is further,

ORDERED that the defendant is directed to pay a one-half share of the costs incurred by the plaintiff in readying the marital residence for sale. The plaintiff is directed to present written proof to the defendant of the costs incurred and payment thereof, and the defendant is directed to reimburse the plaintiff by contributing his pro rata share within 45 days thereafter; and it is further,

ORDERED that the plaintiff shall pay maintenance owed to the defendant in the amount of $39,346.90, which shall be paid from her share of the net proceeds of the sale of the marital residence within 45 days after the closing; and it is further,

ORDERED that the defendant shall pay child support to the plaintiff in the amount of $435.05 per month, commencing on the third day of the first full month after the date of this Decision After Trial, to wit December 3, 2022. Upon emancipation of each child, the defendant's child support obligation shall be recalculated; 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 87.19% of those expenses, and the defendant shall be responsible for 12.81% of those expenses; and it is further,

ORDERED that the defendant is directed to pay to the plaintiff his 12.81% pro-rata share of the cost of providing health insurance benefits for the children; 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 87.19% of those expenses, and the defendant shall be responsible for 12.81% of those expenses; and it is further,

ORDERED that the plaintiff's Vanguard HSBC 401(K), Bank of America 401(K), Computershare, Baron Investment Fund, Guinness Investment Fund, Nuveen TIAA-CREF [*13]accounts constitute the plaintiff's premarital, separate property; 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.