A two-day non-jury trial was held on November 18 and 28, 2022, as to certain issues concerning, inter alia, equitable distribution, maintenance, and child support, at which both parties were represented by counsel. After considering the sworn testimony of the parties, the credibility, or lack thereof, 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 August 10, 2003, and are the parents of three unemancipated children, ages 17, 14, and 12 (hereinafter the children). Throughout the bulk of the marriage, the parties and the children resided in a single-family home located at XXXXXX, Bedford, NY (hereinafter the marital residence), along with the plaintiff's parents.

In July 2019, the parties entered into a postnuptial agreement which provided, among other things, that certain property listed on schedules "A" and "B" "which each party has previously acquired and now holds in his or her name . . . shall be and continue to remain the [*2]sole and separate property of that person."^[FN1] In particular, schedule "A" lists the marital residence and a 35-unit residential building located at XXXX Holland Avenue, Bronx, NY (hereinafter the Holland Avenue Building), as the plaintiff's separate property. Schedule "B" lists eight apartments located in Bridgeport, CT (hereinafter collectively the Connecticut properties), and one apartment located in Daytona Beach Shores, FL as the defendant's separate property.

In April 2021, the plaintiff commenced this action for divorce and ancillary relief. The defendant answered the complaint and asserted a counterclaim for divorce and ancillary relief. The parties subsequently resolved the issue of grounds for divorce by stipulation, which was so-ordered by the Court on November 1, 2021.

Shortly after the commencement of this action, the plaintiff's then counsel filed a motion to be relieved following an incident that occurred on July 16, 2021, involving the plaintiff and his sister at the offices of the plaintiff's counsel's law firm. Based on this incident, which included allegations that the plaintiff's sister displayed a handgun in a threatening manner, the defendant filed an emergency application seeking, inter alia, the appointment of an attorney for the children, and an award of interim child support.^[FN2]

Pursuant to a so-ordered stipulation dated November 3, 2021, it was noted that the defendant has temporary custody of the parties' daughters, the plaintiff has temporary custody of the parties' son, and the parties would meet with a family therapist and ensure that the children attend family therapy.

In the meantime, in January 2022, the Court held a hearing regarding the parties' competing motions related to the postnuptial agreement. Although the plaintiff was seeking to enforce the postnuptial agreement, he testified that both the Holland Avenue Building and the marital residence are owned by his parents. According to the defendant, the Connecticut properties are investment properties that belong to her parents, notwithstanding that they are titled in her name, the rent checks are made out to her, and she deposits the checks into an account held solely in her name. At the conclusion of the hearing, the Court, inter alia, granted the defendant's motion to vacate the postnuptial agreement and, in effect, denied that branch of the plaintiff's cross motion which was to enforce the postnuptial agreement. The Court noted, among other things "it [is] hard to believe either side when it comes to credibility" and "[it] cannot determine on this set of evidence what is actually owned by these parties and what may be owned by parents."^[FN3] The Court observed that each party claims that "neither of them own anything" and "[t]he parents own everything," yet "[i]t is clear that [XXXX Holland Avenue [*3]Corp.] has been paying for the lavish lifestyle that could not possibly be afforded by this couple based upon their reported returns."^[FN4]

By decision and order dated March 23, 2022, the Court, inter alia, awarded temporary child support to the defendant in the amount of $1,806.26 per month and denied the defendant's request for an award of interim counsel fees. In reaching that determination, the Court held that additional income should be imputed to both parties because each party's account of his/her finances was not believable. The Court found, among other things, that the parties' living expenses were regularly and systematically paid for by the J. Family business - XXXX Holland Avenue Corp. (hereinafter Holland Avenue Corp.). The Court imputed additional income of $126,100 per year to the plaintiff's reported income of only $21,800 per year, for a total annual income of $147,900. With respect to the defendant, the Court found that her testimony regarding her income was not credible, noting that she applied for and accepted unemployment benefits totaling $20,244, which were deposited into an e-trade account while she was working as a real estate agent for Houlihan Lawrence, that she has access to financial resources, as evidenced by her bank statements, and has the potential to increase her future earnings, whether as a real estate agent, a real estate investor, or working at a doctor's office. The Court imputed annual income of $90,000 to the defendant, which was consistent with her annual expenses reported on her statement of net worth.

On the first day of trial, the parties placed a stipulation on the record resolving the issue of custody and parental access with respect to their son and youngest daughter.^[FN5]

The plaintiff's sister, A.L.(hereinafter Gina), testified that ownership of the Holland Avenue Building was transferred from her father, T.J. (hereinafter Mr. T.J.), to an S corporation — Holland Avenue Corp. — which was formed in 1989 and is presently owned by Mr. T.J.. She stated that between 1992 and 1999, Holland Avenue Corp. was owned by Mr. T.J.'s best friend — Martin M. M. — however, in 1999, ownership of Holland Avenue Corp. was transferred to the plaintiff for no consideration. In 2019, ownership of Holland Avenue Corp. was transferred back to Mr. T.J.. Gina acknowledged that between 2003 and 2013, the plaintiff was the sole shareholder, president, and CEO of Holland Avenue Corp.

Gina testified that Mr. T.J. has always been the manager of the Holland Avenue Building and she has assisted him for the last 20 to 25 years. She stated that she never signed any checks or paid any bills on behalf of Holland Avenue Corp. Gina claimed that neither the plaintiff nor the defendant managed the Holland Avenue Building. She denied that it was the defendant who dealt with the elevator company, negotiated with and paid the contractors that refurbished the laundry machines, or handled any renovations in the Holland Avenue Building.

Gina testified that at the time of the parties' marriage, they were living in apartment 1C in the Holland Avenue Building. She stated that after the marriage, the parties moved into the [*4]marital residence with her parents. Gina testified that the marital residence was purchased by her mother, P.J. (hereinafter Mrs. P.J.), using the proceeds arising out of a motor vehicle accident, and that the plaintiff and Mrs. P.J. were named on the deed. She stated that in 2019, the marital residence was deeded to the J. Family Trust and she is the trustee and Mr. and Mrs. P.J. are the beneficiaries.

The plaintiff testified that he is presently unemployed, but was working as a driver earning approximately $900 biweekly when this action was commenced. He stated that his 2021 income tax return accurately reflects that he earned $27,000 that year. The plaintiff testified that he completed courses to become a security guard and expects to begin working at New York Medical College in Valhalla, NY earning approximately $17 to $19 per hour. He stated that Mr. T.J. pays for all living expenses related to the marital residence and that his financial contributions are minimal. The plaintiff testified that the parties' son resides with him and his parents at the marital residence and that his parents pay for all child-related expenses.

The plaintiff testified that the checks signed "G.K." on behalf of Holland Avenue Corp. were signed by the defendant. He claimed that he was unaware that the defendant had been signing his name on Holland Avenue Corp.'s checks or using his signature stamp, and she did not have permission to do so. The plaintiff stated that he later discovered that the defendant was paying her personal expenses using funds drawn from Holland Avenue Corp.'s bank account. The plaintiff acknowledged that it was the defendant who signed his name to Holland Avenue Corp.'s checks to pay Con Edison bills for the marital residence, Verizon Wireless bills for the J. Family, and various credit card bills. He confirmed that Holland Avenue Corp. "pays for everything."^[FN6] The plaintiff claimed that the defendant "forged" his name to the checks and stated that Mr. T.J. never signed checks himself, yet acknowledged that "100 percent of [his] bills [were] paid by [Mr. T.J.'s] business."^[FN7] He stated that his father is aware that Holland Avenue Corp. pays for his living expenses. The plaintiff testified that all expenses related to the parties' annual vacation to Florida were paid for by Holland Avenue Corp.

The plaintiff testified that he was four years old when the Holland Avenue Building was purchased by his father in 1976. He stated that ownership of Holland Avenue Corp. was transferred from Mr. M. to him because Mr. M. was "head of narcotics division" and had a "very risky job."^[FN8] The plaintiff acknowledged that he was the sole shareholder of Holland Avenue Corp. between 1999 and 2019; in 2003, he signed a mortgage encumbering the Holland Avenue Building in his capacity as president of Holland Avenue Corp.; and in 2013, he signed a consolidation, extension and modification agreement (hereinafter CEMA) in his capacity as president and sole shareholder of Holland Avenue Corp.

When asked whether the defendant managed the leases and tenancies in the Holland Avenue Building for 20 years, the plaintiff responded "[i]f you think she did, that's great . . . my [*5]sister and my dad did." ^[FN9] The plaintiff denied that it was the defendant who was responsible "most of the time" for depositing the tenants' rent checks at the bank.^[FN10] He stated that he did not collect the tenants' rent or deposit rental checks at the bank.

The plaintiff denied that it was the defendant who negotiated with, supervised, and paid certain contractors with respect to renovations done to the marital residence. The plaintiff further testified that the marital residence belongs to his parents even though he was named on the deed. He stated that he does not recall applying for a mortgage on the marital residence or claiming a mortgage interest deduction on his 2003 and 2004 income tax returns.

The defendant testified that she owns eight properties in Connecticut, all of which were deeded to her during the marriage. She stated that she also owns a property in Daytona Beach, FL, where her parents reside half of the year. The defendant stated that the plaintiff was aware that "[her] family was investing in properties."^[FN11] She acknowledged that during the marriage, in around 2016, she opened a Chase checking account ending x63287 and that the funds in that account are revenue from the Connecticut properties. She testified that the source of the funds that were used to open the account are "[t]he sale [proceeds] of my parents' investment property in Queens."^[FN12] The defendant stated that the funds were deposited in her checking account "[s]o that [she] could have access to the funds to purchase more investment properties."^[FN13] She testified that the plaintiff did not contribute any funds toward the purchase of those properties. The defendant further testified that she never deposited any rental income from the Connecticut properties into a different bank account. She denied that she had used any of the funds in the account ending x63287 to pay for personal or marital expenses. The defendant explained that she replenished funds that were withdrawn from that account to make a donation to the children's school district. She stated that she made payments from that account toward her personal credit card because she "made purchases on behalf of the properties" and "only paid a portion, the exact amount that [she] used to purchase items or materials for the properties."^[FN14] The defendant stated that her personal expenses, the parties' living expenses, and child-related expenses were paid using Holland Avenue Corp.'s account.

The defendant testified that 2021 was the first year that the Connecticut properties generated income. She stated that the income was reported on her parents' income tax return because the properties belong to her parents. The defendant testified that she does not "collect or make any income from those properties."^[FN15] She acknowledged that she does not have anything in [*6]writing reflecting that the Connecticut properties and the Florida property belong to her parents. The defendant stated that when the Connecticut properties and the Florida property were purchased, they underwent renovations and that she was responsible for hiring and paying the contractors and overseeing the renovations.

The defendant testified that when the parties married in August 2003, they resided in an apartment in the Holland Avenue Building with the plaintiff's parents. She stated that she was working as an administrative assistant prior to the marriage, but "stopped as soon as [she] got married."^[FN16] The defendant stated that the Holland Avenue Building was owned by the plaintiff and that she managed the Holland Avenue Building from the date of marriage until she signed the postnuptial agreement in July 2019. The defendant claimed that she "wrote checks . . . scheduled appointments with elevator people, different vendors, oil deliveries . . . met and dealt with insurance companies, mortgage companies, elevator companies, electrical companies, tenants."^[FN17] She stated that Mr. T.J. also managed the building, but that Gina was not involved during that time. The defendant testified that Mr. T.J. was "on site" and "dealt with people that were in the building."^[FN18] According to the defendant, it was her and not Gina who made arrangements to replace the washing machines in the building.

The defendant testified that approximately 60% of the tenants paid rent by check while the remaining 40% paid by cash. She stated that in 2018, there were 34 rental units in the Holland Avenue Building, that the rent for each unit is approximately $1,000, and that in January 2018, $25,771.38 in rent was paid to Holland Avenue Corp. When asked why less than $34,000 was deposited for that month, the defendant stated "[b]ecause the cash probably was not deposited."^[FN19] She explained that Mr. T.J. "usually kept the cash."^[FN20]

The defendant testified that the parties lived in the Holland Avenue Building for approximately 18 months and then moved into the marital residence, which "was the house that we all bought, [the plaintiff] and his mother."^[FN21] She stated that after the parties moved out of the Holland Avenue Building, Gina "moved in to be the super."^[FN22] The defendant testified that she continued to manage her "portion of it, which was paperwork, contracts, appointments . . . and [Gina] was the on-site super."^[FN23] She stated that she also dealt with Holland Avenue Building's vendors and handled issues related to insurance, electrical, elevators, and laundry. The defendant [*7]stated that she never communicated with Holland Avenue Corp.'s accountant or reviewed any corporate tax returns. She asserted that no one other than her signed checks on behalf of Holland Avenue Corp. The defendant acknowledged signing checks to pay bills for her personal accounts at Neiman Marcus, Macy's, Saks Fifth Avenue, and Kohl's; ConEdison bills for both Holland Avenue Corp. and the marital residence; Verizon Wireless bills for "our family plan;" and the parties' personal credit cards.^[FN24]

The defendant noted that the plaintiff took out a mortgage on the marital residence, and that the mortgage was paid for by Holland Avenue Corp. The defendant acknowledged that aside from the mortgage, Mrs. P.J. contributed the remaining funds toward the purchase of the marital residence. She added that the marital residence underwent extensive renovations, which were paid for by Holland Avenue Corp. The defendant claimed that both she and the plaintiff oversaw the renovations. She stated that she lived in the marital residence between 2004 and 2021, that the parties did not pay rent, and that her and the plaintiff occupied the master bedroom of the home.

The defendant testified that in around 2012, she had a part-time job with Disney Publishing working approximately 25 hours per week and earning $17 per hour. She stated that she left that employment after approximately one year and remained unemployed until she got her real estate license in September 2019. The defendant testified that she never signed a joint tax return with the plaintiff and never communicated with the parties' accountant regarding any tax returns.

The defendant testified that in 2003, the proceeds from the refinancing of the mortgage on the Holland Avenue Building were deposited in a Chase account ending x2965, which was titled to her, the plaintiff, and Mrs. P.J.. She stated that in July 2019 — around the same time that the parties entered into the postnuptial agreement — the balance in that account of $30,398.36 was transferred to Holland Avenue Corp.'s bank account. The defendant testified that the Chase account titled in her name ending x1933 was opened in October 2020, using the proceeds from the sale of her parents' home in Queens. She stated $588,834.72 was withdrawn from that account for her parents to purchase a new home in Yorktown Heights, NY. The defendant noted that the remaining balance was used to renovate her parents' new home, and that the account was closed in around April 2021. She stated that the Chase account titled in her name ending x6825 was opened in November 2020, and is her personal account. When asked about a deposit in the amount of $48,399, the defendant explained that the source of those funds was her real estate commissions. She acknowledged that she was collecting unemployment insurance while she was working at a doctor's office. According to the defendant, she "brought [] to [the plaintiff's attention" that the parties' joint income tax return did not include her unemployment insurance.^[FN25]

S.K., the defendant's mother (hereinafter Mrs. K.), testified that in November 2021, her and her husband sold their home in Queens and placed the net proceeds from the sale in an account titled in the defendant's name so that the defendant could find other investment properties for them to purchase. She explained that her and her husband spent the summer in [*8]Montenegro and the winter in Florida, and were "not here all the time."^[FN26] Mrs. K. stated that those funds were used to purchase the Connecticut properties, and that those properties were titled in the defendant's name because "[s]he is in charge for renovation . . . [s]he is in charge for the bills . . . [s]he is in charge for the insurance, tax, everything" and "[w]e don't read and write English."^[FN27] She testified that the first year they made a profit was in 2021, and that her and her husband paid the taxes on that income.

In a closing statement, the plaintiff's attorney argues that the evidence demonstrated that the plaintiff received no consideration when ownership of Holland Avenue Corp. was transferred from Mr. M. to him and neither him nor the defendant ever managed the Holland Avenue Building. He asserts that the marital residence is currently owned by the J. Family Trust, that the plaintiff never held a financial interest in the marital residence, and had no involvement in paying for renovations to the home or satisfying the mortgage.

The plaintiff's attorney argues that there is no evidence in the record that the Connecticut properties are actually owned by the defendant's parents and, therefore, the Connecticut properties are marital property subject to equitable distribution. He emphasizes that the defendant admitted that she is the title owner of a bank account that was used to manage the Connecticut properties, which had a balance in 2018, of $173,159.07. The plaintiff's attorney argues that the bank account statements refute the testimony of the defendant and Mrs. K. that the Connecticut properties did not generate a profit until 2021. He notes that the defendant withdrew $209,300 from that account approximately two weeks after she was served with the summons and complaint. The plaintiff's attorney argues that the funds held in that account should be equitably distributed between the parties.

The plaintiff's attorney contends that the defendant is unemployed, no income should be imputed to him for purposes of calculating maintenance and child support, and that the defendant should be directed to pay maintenance to the plaintiff since her income as a real estate agent far exceeds the plaintiff's earnings.

In a closing statement, the defendant's attorney argues, among other things, that the Connecticut properties belong to the defendant's parents and are not marital property subject to equitable distribution. He emphasizes that the Connecticut properties were not purchased until late in the marriage, did not generate a profit until after the commencement of this action in 2021, and the plaintiff conceded that he made no contributions to the Connecticut properties whatsoever. The defendant's attorney also argues that the plaintiff failed to provide any evidence that he transferred his ownership interests in Holland Avenue Corp. and the marital residence. He highlights that although the plaintiff insists that the Holland Avenue Building belongs to his parents, the plaintiff forced the defendant to incur significant counsel fees opposing the plaintiff's motion to enforce the postnuptial agreement (which was referred to a hearing), wherein he represented that the Holland Avenue Building is his separate property. The [*9]defendant's attorney states that Gina's testimony that the defendant had no involvement with the management of the Holland Avenue Building lacks credibility and should be disregarded. He argues, inter alia, that the defendant is entitled to an equitable share of the appreciation in value of the Holland Avenue Building between the date of marriage and the date of commencement.

The defendant's attorney similarly argues that the defendant is entitled to either a one-half share of the plaintiff's one-half share of the marital residence or 25% of the value of the marital residence. He asserts that although Mrs. P.J. paid a large portion of the purchase price of the marital residence, the plaintiff took out a mortgage in the approximate amount of $150,000, which was paid in full within 18 months thereafter. The defendant's attorney contends that the parties paid $200,000 toward renovating the marital residence and that title to the property was held jointly by the plaintiff and Mrs. P.J..

The defendant's attorney argues that for purposes of calculating child support and maintenance, the Court should impute to the plaintiff the amount of $348,000, representing the defendant's salary of approximately $28,000 as a driver, Holland Avenue Corp.'s reported gross profit of $200,675 in 2018, plus the $120,000 "tax-free" income from the rental cash. He insists that in 2021, the defendant earned income of $39,000 in commissions as a real estate agent and netted only $22,000 after deducting her expenses. The defendant's attorney states that she earns no income from the investment properties titled in her name. He argues that the plaintiff should be directed to pay maintenance up to the cap in the amount of $2,925 per month, child support in the amount of $2,872.87 per month for the parties' two daughters, and a 84.6% pro rata share of college expenses, unreimbursed medical expenses, and extracurricular expenses.

The defendant's attorney argues that an award of counsel fees in the sum of at least $30,000 is appropriate. He contends that the defendant incurred $9,500 in legal fees in connection with the motions, hearing, and the plaintiff's appeal related to the parties' postnuptial agreement. The defendant's attorney notes that the defendant was forced to bring an emergency motion for custody of the children after Gina brandished a gun at the plaintiff's attorney, which cost an additional $3,500 in counsel fees. He further states that the defendant was forced to incur approximately $8,000 in legal fees related to her motion, inter alia, seeking an award of child support and subsequent motions to hold the plaintiff in contempt.

As stated above, the parties entered into a so-ordered stipulation in November 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, in consideration of the stipulation placed on the record on November 18, 2022, the parties are awarded joint legal custody of their son and youngest daughter, with final decision-making authority for the son to the plaintiff and final decision-making authority for the youngest daughter to the defendant. The plaintiff is awarded primary residential custody of the son and the defendant is awarded primary residential custody of the youngest daughter.

"The trial court is vested with broad discretion in making an equitable distribution of marital property . . . and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed" (Linenschmidt v Linenschmidt, 163 AD3d 949, 950 [2d Dept. 2018]; see Santamaria v Santamaria, 177 AD3d 802, 804 [2d Dept. 2019]). 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]).

"There is a statutory presumption that all property acquired by either spouse during the marriage, unless clearly separate, is marital property, and the party seeking to overcome the presumption has the burden of proving that the property in dispute is separate property" (Nadasi v Nadel-Nadasi, 153 AD3d 1346, 1349 [2d Dept. 2017]; see Domestic Relations Law § 236[B][1][c],[d]). "Under the equitable distribution statute, separate property is defined to include an increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse" (Shvalb v Rubinshtein, 204 AD3d 1059, 1061 [2d Dept. 2022] [internal quotation marks omitted]). "Thus, any appreciation in the value of separate property due to the contributions or efforts of the nontitled spouse will be considered marital property. This includes any direct contributions to the appreciation, such as when the nontitled spouse makes financial contributions towards the property, as well as when the nontitled spouse makes direct nonfinancial contributions, such as by personally maintaining, making improvements to, or renovating a marital residence" (Johnson v Chapin, 12 NY3d 461, 466 [2009] [internal citation omitted]).

Although the plaintiff has insisted throughout this litigation that the Holland Avenue Building has always been owned by Mr. T.J., the testimony of the witnesses and the evidence admitted at trial — including corporate filings, mortgage loan documents, and income tax returns — demonstrate that the Holland Avenue Building was conveyed to Holland Avenue Corp. in around 1989, and that the plaintiff was the owner, CEO, and sole shareholder of Holland Avenue Corp. for approximately 20 years — from around 1999 (a few years prior to the marriage) until 2019, when he purportedly transferred his ownership of the shares in Holland Avenue Corp. to [*10]Mr. T.J.^[FN28] (see e.g. Silvers v Silvers, 197 AD3d 1195, 1196 [2d Dept. 2021]). It is undisputed that during the entirety of the parties' marriage and while the plaintiff was the sole shareholder of Holland Avenue Corp., the parties' personal living expenses, child-care expenses, vacations, etc., were paid for by Holland Avenue Corp.

The Court finds the testimony of the plaintiff and Gina that the defendant had no involvement whatsoever in managing the Holland Avenue Building to be self-serving and lacks credibility. The Court credits the defendant's testimony that from the parties' marriage in 2003 until they signed the postnuptial agreement in 2019, she assisted in managing the Holland Avenue Building together with Gina and Mr. T.J., who acted as "the supers."^[FN29] The defendant credibly testified that she handled paperwork related to the Holland Avenue Building, paid the Holland Avenue Building's bills by signing the plaintiff's name, "G. Jakaj," to Holland Avenue Corp.'s checks or by using a signature stamp bearing the plaintiff's name, and dealt with certain vendors, including elevator and laundry companies. The defendant's testimony was substantiated by copies of emails, bank statements, and checks drawn on Holland Avenue Corp.'s account. Both Gina and the plaintiff testified that they never signed any checks or paid any bills on behalf of Holland Avenue Corp., and the plaintiff added that Mr. T.J. "was not signing the checks."^[FN30] The plaintiff's testimony that he did not learn "until . . . much later" that the defendant was signing "G.K." on Holland Avenue Corp.'s checks defies logic and common sense.^[FN31] The unrefuted evidence established that the defendant had been paying the bills for the Holland Avenue Building and the parties' living expenses regularly and continuously.

Nevertheless, although the defendant could have been entitled to an equitable share of the appreciation in value of Holland Avenue Corp. due to her contributions, no evidence was adduced at trial as to the value of Holland Avenue Corp. at the time of the parties' marriage or the amount of Holland Avenue Corp.'s appreciation in value during the marriage ^[FN32] (see Repetti v Repetti, 147 AD3d 1094, 1098-1099 [2d Dept. 2017]; Macaluso v Macaluso, 124 AD3d 959, [*11]962 [3d Dept 2015]; Rubin v Rubin, 309 AD2d 846, 847 [2d Dept 2003]; Nowik v Nowik, 228 AD2d 421, 421 [2d Dept. 1996]). Accordingly, the defendant is not entitled to equitable distribution of Holland Avenue Corp.

The plaintiff takes a similar head-in-the-sand attitude with respect to ownership of the marital residence. Although the plaintiff contends that the marital residence is "[his] mom's house,"^[FN33] the documentary evidence demonstrates that the marital residence was purchased for $756,000 after the marriage in October 2003, and that the plaintiff and his mother, Mrs. P.J., took title as joint tenants with the right of survivorship. The plaintiff offered no evidence of any intent by his parents to give him his interest as a gift. The parties resided in the marital residence, together with their children and Mr. & Mrs. P.J., and had use of the master bedroom. It is undisputed that a large portion of the purchase price was paid by Mrs. P.J. using certain proceeds arising out of a motor vehicle accident. The plaintiff purportedly took out a $150,000 mortgage on the marital residence in his name, however, no mortgage loan documents were offered into evidence other than a letter dated July 6, 2005, addressed to the plaintiff indicating that the mortgage on the marital residence had been paid in full as of June 30, 2005.

The plaintiff stated that prior to moving in, the marital residence underwent significant renovations, including replacing windows, the roof, two bathrooms, and the kitchen. The plaintiff testified that he did not negotiate with, supervise, or pay the contractors and denied that the defendant handled those responsibilities - yet failed to indicate who did - and stated that the defendant was never asked to "take care of the house."^[FN34] The Court finds the plaintiff's testimony to be utterly incredible given that the parties resided at the marital residence with their three children from 2003 until 2021, and credits the defendant's testimony that she was actively involved in managing the renovations to the marital residence, and helped clean and maintain the home. In addition, although the plaintiff asserts that "[his] father pays for everything,"^[FN35] the evidence showed that all expenses related to the martial residence — including the renovations and real estate taxes — were paid by Holland Avenue Corp. during the time that the plaintiff was the sole shareholder, CEO, and president of Holland Avenue Corp. Although the plaintiff testified that the taxes on the marital residence were paid "by [his] father," the evidence showed that the payments were actually made by check drawn on Holland Avenue Corp's account and was signed "G. Jakaj."^[FN36]

Under these circumstances, the plaintiff failed to overcome the presumption that his 50% interest in the marital residence constitutes marital property (see Mehlenbacher v Mehlenbacher, 199 AD3d 1304, 1305 [2d Dept. 2021]).^[FN37] Nevertheless, "'[a] determination must be made as to [*12]the net value of each asset before determining the distribution thereof'" (Rudish v Rudish, 150 AD3d 1291, 1293 [2d Dept. 2017], quoting D'Amato v D'Amato, 96 AD2d 849, 850 [2d Dept. 1983]; see Van Dood v Van Dood, 142 AD3d 661, 662 [2d Dept. 2016]). Although the defendant could have been entitled to an equitable share of the marital portion of the marital residence based on the length of the parties' marriage and the defendant's indirect contributions to the marital residence, in the absence of any evidence concerning the value of the marital residence, her request for equitable distribution of that asset is denied.

Contrary to the plaintiff's contention, he is not entitled to equitable distribution of the Connecticut properties or the funds held in the defendant's account ending x63287. The unrefuted testimony and documentary evidence demonstrates that account x63287 was funded using the proceeds from the sale of the defendant's parents' investment property in Queens, the Connecticut properties were purchased between 2015 and 2019 using the funds in account x63287, the income generated from the Connecticut properties are deposited into account x63287, and the defendant did not use those funds to pay for any marital expenses, instead using Holland Avenue Corp.'s bank account as her personal piggybank. The plaintiff offered no evidence that the Connecticut properties were purchased using marital funds, that the funds in account x63287 were at any time commingled with marital funds, or that he made any contributions whatsoever to the Connecticut properties. In fact, although the Connecticut properties were listed on schedule "B" of the postnuptial agreement, the plaintiff claimed that he was unaware of the Connecticut properties and "just found this out" during the divorce proceedings.^[FN38] Based on the foregoing, the defendant met her burden to overcome the presumption that the Connecticut properties and the funds held in account x63287 are marital property (see Nadasi v Nadel-Nadasi, 153 AD3d 1346, 1349 [2d Dept. 2017]).

"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 nearly 18 years when the plaintiff commenced this divorce action. At the time of trial, the plaintiff was 50 years old and the defendant was 43 years old, and both are in good health and capable of full-time work. The record shows that between 1999 and 2019, the plaintiff was the sole shareholder of Holland Avenue Corp., that the plaintiff listed the Holland Avenue Building as his separate property on the postnuptial agreement and sought its [*13]enforcement, notwithstanding his repeated assertion that the Holland Avenue Building has always been owned by his father, and that the parties' living expenses were paid for by Holland Avenue Corp. during the marriage. The record also shows that the plaintiff had been working as a driver on a part-time basis earning $21,800 per year since 2019, that he was currently unemployed, and that he anticipated starting a job as a security guard earning between $17 to $19 per hour.

The Court rejects the plaintiff's contention that he is entitled to an award of maintenance and that no basis exists for an imputation of income to him (see Novick v Novick, — AD3d —, 2023 NY Slip Op 01684, *2 [2023]; Matter of Glaudin v Glaudin, 213 AD3d 762 [2d Dept 2023]). "'A court is not bound by a party's account of his or her own finances, and where a party's account is not believable, the court is justified in finding a true or potential income higher than that claimed'" (Saks v Saks, 199 AD3d 950, 952 [2d Dept. 2021], quoting Castello v Castello, 144 AD3d 723, 725 [2d Dept. 2016]). The hearing court is "[a]fforded considerable discretion in determining whether to impute income to a [party], and the court's credibility determinations will be accorded deference on appeal" (Saks v Saks, 199 AD3d at 952 [citations and internal quotation marks omitted]).

Here, the plaintiff's account of his finances lacks any indicia of credibility. The plaintiff's income tax returns reflect that he earned an annual income of only $21,800 in 2020, and $27,000 in 2021. The evidence demonstrated, however, that the parties had unfettered access to Holland Avenue Corp.'s bank account to pay for personal living expenses and that they enjoyed a comfortable lifestyle during the marriage, which included extended annual vacations to Florida. The Court imputes income to the plaintiff in the amount of $37,440, which represents the plaintiff's anticipated hourly wage of $18 as a security guard based on a 40-hour work week. In a prior decision dated March 23, 2022, the Court declined to impute additional income to the plaintiff based on his alleged ownership of the Holland Avenue Building on the ground that the Court could not, at that time, determine "what [property] is actually owned by these parties and what may be owned by [their] parents" (Transcript 1/26/2022 at 158). Now, however, after a trial, the Court finds that the plaintiff, as the sole shareholder of Holland Avenue Corp. from 1999 to 2019, was the owner of the Holland Avenue Building during the bulk of the parties' marriage and indisputably used the income generated therefrom to pay the parties' marital expenses, as well as the living expenses of his parents. Thus, the Court imputes an additional amount of $200,675 to the plaintiff, which is Holland Avenue Corp.'s reported gross profit in 2018. Contrary to the defendant's contention, however, there is inadequate evidence in the record to support a reliable imputation of income to the plaintiff based on alleged rental payments made in cash that were not reported on Holland Avenue Corp.'s income tax returns.

Furthermore, although Mr. T.J. is purportedly the current owner of Holland Avenue Corp. and has been since 2019, the evidence demonstrates that the plaintiff receives substantial and ongoing financial support from his parents (see Nederlander v Nederlander, 102 AD2d 416, 417 [1st Dept. 2013]; Baumgardner v Baumgardner, 98 AD3d 929, 930-931 [2d Dept. 2012]; see also Alan D. Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Domestic Relations Law § 16:21 at 1035 ["[t]he existence of a regular pattern of gifts strongly suggests that gifts are a recurring source of money and should be factored into the child support determination"]). The plaintiff and the parties' son reside in the marital residence with the plaintiff's parents at no cost. Given that the marital residence was owned by the plaintiff jointly with his mother up until 2019 (when he purportedly transferred his interest to a trust for no [*14]consideration), the parties and the children resided with the plaintiff's parents from around 2006 until 2021, and the plaintiff continues to do so with the parties' son, there is no reason for the Court to anticipate that the plaintiff's housing arrangement will change. Significantly, according to the plaintiff's updated statement of net worth, he makes no financial contributions toward the expenses of the marital residence, Mr. T.J. pays for his automobile insurance, and, aside from his legal bills, has minimal liabilities.

Thus, based on the foregoing, the Court imputes to the plaintiff a total annual income of $238,115.

The Court similarly finds that the defendant's account of her finances lacks credibility. The defendant's updated statement of net worth and her 2021 individual income tax return provide that the defendant earned income of only $39,776, representing her real estate commissions, and netted only $22,667 after deducting her purported business expenses. The record reflects that in around 2011, the defendant was employed part time for approximately one-year as an office assistant earning $17 per hour. In 2020, the defendant worked part time at a doctor's office for a period of approximately four months and, in lieu of a salary, was paid in "gifts . . . [and] kind of college fund money for [the] children."^[FN39] In addition, from January 2021 through November 2021, the defendant worked part time for Satya Medical Associates and was paid a total of $24,016 in cash via Zelle.

The record also reflects that the defendant is the title owner of eight investment properties in Connecticut, that the income generated from the Connecticut properties is deposited into an account titled solely in her name (x63287), and that no other funds are deposited into that account. Although the defendant claimed that those properties did not generate income until 2021, the bank statements reflect monthly deposits of varying amounts between 2018 and 2020. The defendant's updated statement of net worth reflects that she is the title holder of several accounts holding funds as of August 2022, totaling over $173,000, and is the owner of an e-trade account with a balance of over $12,000. The defendant testified that her account ending x1933 was funded with the proceeds from the sale of her parents' home in Queens and that $588,834.72 was withdrawn in December 2020 to purchase a new home for her parents in Yorktown Heights. According to the defendant and her mother, $209,639.44, was withdrawn from that account three weeks after the commencement of this action for the purpose of renovating the home, however, no documentary evidence was admitted at trial substantiating that assertion.

Furthermore, the defendant reported on her updated statement of net worth that her monthly expenses amount to $8,544.50 or $102,534 per year, yet she has no credit card debt other than $7,164 for "tuition."^[FN40] The Court notes that the defendant accepted unemployment benefits in 2020, while admittedly working as an assistant at a doctor's office and as a real estate agent for Houlihan Lawrence, and at a time when she was not in financial distress. Rather, the evidence demonstrates, among other things, that the defendant was living in the marital residence, her living expenses were being paid by Holland Avenue Corp., and her account ending x63287 had a balance of $76,072.60 as of December 2020.

Under these circumstances, the Court imputes annual income of $102,534 to the [*15]defendant, which is consistent with her annual expenses reported on her updated statement of net worth, and an additional $35,000 based on the plaintiff's ability to work full time whether as a real estate agent, an office assistant, or a real estate investor. Thus, the Court imputes to the plaintiff a total annual income of $137,534.

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 $0 per month, and considering the relevant factors (see DRL § 236[B][6][e][1][a]-[o]), including the complete lack of credibility of the parties, the parties' access to financial resources, and the ongoing support provided by their parents, the Court declines to award additional maintenance for income exceeding the cap.

"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).

Here, the parties' daughters reside with the defendant and the parties' son resides with the plaintiff. The Court rejects the defendant's contention that there should be no award of child support for the parties' son. For purposes of calculating child support, the parties' combined parental income equals $375,649 (see DRL § 240[1-b][c][1]), of which the plaintiff's income comprises approximately 63% and the defendant's income 37%. 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 63% is to be paid annually by the plaintiff, or $2,152.54 per month (see DRL § 240[1-b][c][2]). Multiplying the combined parental income up to the statutory cap of $163,000 by the appropriate child support percentage of 17% for one child yields an annual parental child support obligation of $27,710, of which 37% is to be paid annually by the defendant, or $845.44 per month (see DRL § 240[1-b][c][2]).

Next, because the combined parental income imputed to the parties 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 [*16]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 limited testimony at trial regarding the children's needs, the parties' marital standard of living, and the lack of credibility of the parties regarding their respective financial situation, the Court declines to calculate child support based on combined parental income above the statutory cap (see Bari v Bari, 200 AD3d 835, 838 [2d Dept. 2021]; Matter of Levin v Blum, 167 AD3d 609, 611 [2d Dept. 2018]).

Thus, after deducting the defendant's monthly basic child support obligation of $845.44 from the plaintiff's monthly basic child support obligation of $2,152.54, the plaintiff is directed to pay $1,307.10 per month in child support for the parties' daughters commencing on the third day of the first full month after the date of this Decision After Trial, to wit May 3, 2023. Upon emancipation of the eldest child, child support shall be recalculated.

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 plaintiff is directed to pay a 63% pro rata share of statutory add-on expenses and unreimbursed health care expenses, and the defendant is directed to pay a 37% pro rata share of those expenses. The parties are directed to pay their respective pro rata share within thirty (30) days of presentation of proof of payment of such expenses. "Expenses for extracurricular activities are not specifically delineated as an 'add-on' under the Child Support Standards Act" (Tuchman v Tuchman, 201 AD3d 986, 992-993 [2d Dept 2022]), and the Court declines to direct the plaintiff to pay a pro rata share of those expenses for the daughters in addition to his basic child support obligation.

"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 defendant testified that the parties' eldest daughter attends Stony Brook University, and that she receives financial aid toward her tuition and fees, but it does not cover the full cost. Under the circumstances of this case, the Court directs the plaintiff to pay a 63% pro rata share of the eldest daughter's college expenses, to be paid within thirty (30) days of presentation of proof of payment of such expenses (see DRL § 240[1-b][c][7]). Given the absence of any evidence that the parties' youngest daughter intends to attend college, the Court declines to direct the plaintiff to pay a share of her college education (see Morille-Hinds v Hinds, 169 AD3d at 900; Weidman v Weidman, 162 AD3d 720, 722 [2d Dept. 2018]; Repetti v Repetti, 147 AD3d 1094, 1097-1087 [2d Dept. 2017]). In addition, given the age of the son, 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 decision to award an attorney's fee in a matrimonial action lies, in the first instance, in the discretion of the trial court and then in the Appellate Division whose discretionary authority is as broad as that of the trial court'" (Klein v Klein, 178 AD3d 802, 805 [2d Dept. [*17]2019], quoting Black v Black, 140 AD3d 816, 816 [2d Dept. 2016]). "There is a statutory 'rebuttable presumption that counsel fees shall be awarded to the less monied spouse'" (Piccininni v Piccininni, 176 AD3d 880, 881 [2d Dept. 2019], quoting Domestic Relations Law § 237[a]). The purpose of awarding attorney's fees "is to redress the economic disparity between the monied spouse and the nonmonied spouse by ensuring that the latter will be able to litigate the action on equal footing with the former" (Giasemis v Giasemis, 187 AD3d 718, 719 [2d Dept. 2020] [internal quotation marks omitted]). "In exercising its discretion, a court should 'review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions'" (Zehner v Zehner, 186 AD3d 784, 785-786 [2d Dept. 2020], quoting Duval v Duval, 144 AD3d 739, 743 [2d Dept. 2016] [internal quotation marks omitted]). "Additionally, the court may also consider whether one party has engaged in conduct or taken positions resulting in a delay of the proceedings or engaged in unnecessary litigation" (Klein v Klein, 178 AD3d at 805).

The defendant seeks an award of counsel fees in the amount of $30,000, arguing that she is the less-monied spouse, she had to respond to the plaintiff's meritless motion to enforce the postnuptial agreement, the defendant refused to cooperate with discovery, and she was forced to file motions seeking custody of the parties' children and, among other things, interim child support.

Although the defendant is the less-monied spouse based on the amount of income imputed to the parties, the Court declines to issue an award of counsel fees to the defendant in the full amount sought. Throughout this litigation, neither party has been forthcoming about their finances. On the parties' 2018, 2019 and 2020 income tax returns, the parties reported adjusted gross income in the amounts of only $18,913, $2,930, and $48,590. In 2020, the defendant earned $22,055 in commissions that year, but reportedly had business expenses in the whopping amount of $17,700, resulting in a profit of only $4,355. That same year the defendant accepted unemployment benefits totaling $20,244, despite that her living expenses, as well as those of the plaintiff, were systematically being paid for by Holland Avenue Corp. and she had access to significant separate property. In addition, although the Court granted the defendant's motion to set aside the postnuptial agreement, the defendant testified that the Connecticut properties actually belong to her parents notwithstanding that they were listed on the postnuptial agreement as her separate property, and the Court found her testimony to be less than credible. Moreover, the Court declines to issue an award of counsel fees incurred with respect to motion sequence no. 6. Pursuant to a stipulation signed by the parties and counsel dated November 15, 2022, motion sequence no. 6, "including any claims for counsel fees on that motion," was withdrawn.^[FN41]

Accordingly, the Court finds that the equities in this case warrant an award of counsel fees to the defendant in the amount of $7,000, to be paid by the plaintiff to the defendant's counsel within 30 days of the date of this Decision After Trial.

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 in consideration of the stipulation placed on the record on November 18, [*18]2022, the parties are awarded joint legal custody of their son and youngest daughter, with final decision-making authority for the son to the plaintiff and final decision-making authority for the youngest daughter to the defendant, and the plaintiff is awarded primary residential custody of the son and the defendant is awarded primary residential custody of the youngest daughter; and it is further,

ORDERED that after deducting the defendant's monthly basic child support obligation of $845.44 for the parties' son from the plaintiff's monthly basic child support obligation of $2,152.54 for the parties' daughters, the plaintiff shall pay $1,307.10 per month in child support for the parties' daughters commencing on the third day of the first full month after the date of this Decision After Trial, to wit May 3, 2023. Upon emancipation of the eldest child, child support shall be recalculated; and it is further,

ORDERED that the parties shall share in the costs of statutory add-on expenses and unreimbursed health care expenses for the children on a pro rata basis. The plaintiff shall be responsible for 63% of those expenses, and the defendant shall be responsible for 37% of those expenses. The parties are directed to pay their respective pro rata share within thirty (30) days of presentation of proof of payment of such expenses; and it is further,

ORDERED that the parties shall share in the costs of college expenses for the eldest child on a pro rata basis. The plaintiff shall be responsible for 63% of those expenses, and the defendant shall be responsible for 37% of those expenses. The plaintiff is directed to pay his pro rata share within thirty (30) days of presentation of proof by the defendant of payment of such expenses; and it is further,

ORDERED that the defendant is awarded $7,000 in counsel fees, to be paid by the plaintiff to the defendant's counsel within 30 days after the date of this Decision After Trial; and it is further,

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

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

The foregoing constitutes the decision and order of this Court.