On January 11, 2023, a nonjury trial was held concerning, inter alia, equitable distribution of the assets amassed over the course of the parties' sixty-two (62) year marriage. The plaintiff was represented at trial by counsel. The defendant appeared pro se despite the Court's numerous admonitions, as detailed below, to retain counsel.

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

By way of background, this divorce action was commenced in February 2021, by the filing of an amended summons with notice. The plaintiff was then 88 years old and the defendant was 90 years old. On March 19, 2021, the defendant, who was a practicing attorney for more than 60 years, served a notice of appearance and demand for a complaint. At the outset of this litigation, the defendant declined to retain counsel and refused to submit a statement of net worth and cooperate with finalizing the preliminary conference orders.

On May 14, 2021, the defendant retained counsel and filed an answer with counterclaim. Five days later, the defendant's then counsel moved for leave to withdraw as counsel for the defendant. That motion was subsequently withdrawn, only to be refiled again in July 2021. The Court granted the unopposed motion on August 30, 2021, and the matter was stayed for the defendant to retain new counsel.

The defendant did not retain counsel and instead participated in status conferences, appearing virtually via Microsoft Teams, and submitted numerous unauthorized communications to the Court via facsimile and letter. On December 3, 2021, the Court issued a trial readiness order and in accordance therewith, the note of issue was filed on December 8, 2021. The note of issue was served upon the defendant via email, facsimile, and first class mail to his home address.

The matter was adjourned after it was brought to the Court's attention that the defendant had been hospitalized. On March 11, 2022, the Court held a pretrial conference, at which the plaintiff appeared with counsel and the defendant appeared virtually on his own behalf. At the conference, the parties were advised that trial would commence on July 18, 2022. The Court cautioned the defendant that he should retain counsel to represent him in this matter, emphasizing that he has the financial wherewithal to do so. The Court reminded the defendant that all documents must be e-filed through NYSCEF and that the Court does not accept papers via facsimile. On June 7, 2022, the Court endorsed a letter e-filed by the defendant reiterating that the Court does not entertain litigation by letter, "[t]he trial will proceed as scheduled" and "[t]he parties have had more than enough time and opportunities to retain counsel of their choosing."^[FN1]

The plaintiff and her counsel appeared in Court on July 18, 2022, for the start of trial, but the defendant, who was housebound due to mobility and health-related issues, did not. The defendant still had not retained counsel notwithstanding the urging of the Court and despite having the financial means to do so. On July 26, 2022, the plaintiff moved for leave to enter a default judgment against the defendant and to set the matter down for an immediate inquest.

On August 25, 2022, in response to a letter from the defendant dated August 24, 2022, the Court stated "[d]espite repeated direct admonitions that litigation by letter is not permitted, yet again the Court must remind Defendant of this ongoing policy," that "a Trial will be conducted sooner rather than later and it is incumbent upon Defendant to retain counsel or risk a default judgment," and that "[t]he currently Pro Se Defendant would be well advised to finally heed the directives of this Court."^[FN2] By decision and order dated September 14, 2022, the Court denied the plaintiff's motion for a default judgment and instead, on its own initiative, appointed a guardian ad litem for the defendant pursuant to CPLR §§ 1201 and 1202 (hereinafter the GAL).

A status conference was subsequently held on October 13, 2022. In a letter dated October 10, 2022, the defendant acknowledged that he was aware that a conference was scheduled for that date. A link was provided to the defendant in advance of the conference in order for him to participate virtually, however, he did not log on. At the conference, the GAL made an oral application to be relieved, stating that the defendant disagrees with his legal strategy, his discussions with the defendant have been "contentious," and that the defendant has been "downright rude to [his] abilities."^[FN3] The GAL stated that the defendant appears to be "of sound mind to present his own case."^[FN4] The Court granted the application and scheduled trial to be held on January 11 and 12, 2023. In a letter filed with the Court on November 14, 2022, the defendant acknowledged that he received a copy of the so-ordered transcript dated October 13, 2022, and was aware that the trial was scheduled to commence on January 11, 2023, however he objected to a trial being held in this matter. The Court responded that it "does not entertain litigation by letter" and that "[t]he trial will proceed as scheduled."^[FN5]

Trial commenced on January 11, 2023, at which the plaintiff was present in Court and represented by counsel and the defendant appeared virtually via Microsoft Teams. The defendant did not retain counsel to represent him at trial. During the proceeding, the Court was forced to mute the defendant's microphone because he refused to stop speaking over everyone in the courtroom despite numerous warnings. The Court recognized that the defendant had a standing objection to "anything and everything that comes in" and that the Court "will not consider things that are inappropriate questions and/or [] inappropriate answers."^[FN6]

The plaintiff testified that the parties married on October 22, 1960, and have three adult children. When the parties married, the plaintiff was employed as a teacher and the defendant, after graduating from law school, began working as an associate at Kelley Drye & Warren LLP (hereinafter Kelley Drye). The plaintiff has not worked since she became pregnant with the parties' first child. The plaintiff described that between 1960 and the 1990s, the defendant worked long hours, including weekends, with the exception of attending church on Sunday mornings and dinners on Saturday evenings. The plaintiff was a homemaker, caretaker of the parties' children, and engaged in numerous charitable endeavors, including founding an organization known as Pregnancy Care Center.

In around 2018, the defendant began working from the home office. The plaintiff described that the defendant was "hostile, toxic," "sometimes he would curse, or raise his voice," [*2]and "made [her] feel very nervous and uncomfortable."^[FN7] She testified that she has suffered from glaucoma since 1985, became totally blind in her left eye, and has been told by doctors that she "cannot have any stress in [her] life."^[FN8] The plaintiff explained that she left the marital residence due to ongoing stress caused by the atmosphere in the home. The plaintiff acknowledged that the defendant's income is the sole source of the assets amassed by the parties during the marriage.

The plaintiff stated that after she left the marital residence, she moved in with the parties' son C. The defendant, who suffered several falls and was hospitalized, is cared for by two home aides. In around 2020, the plaintiff became aware that a will had been prepared for her by the defendant and his law firm. She testified that on the day she signed the will, she learned that a substantial portion of the marital estate would be distributed to the parties' grandchildren instead of the parties' children. The plaintiff noted that the marital residence was titled in her name and was appraised on November 22, 2022, as having a fair market value of $1,950,000. According to the plaintiff, she had no idea up until that point how much money was in the marital estate. She testified that she did not agree with the defendant's decision to "disinherit [their] children."^[FN9]

The plaintiff testified that she wishes to return to the marital residence and reside on the first floor, and the defendant can remain on the second floor and receive assistance from home aides. The plaintiff stated that she wishes to sell the parties' home in South Carolina, which was purchased in 1994, and to divide the net proceeds equally (hereinafter the South Carolina home).

The plaintiff testified that her only source of income is social security benefits in the amount of $1,039 per month, and an inheritance she received following the death of her father. She stated that when she left the marital residence in around February 2021, she opened an individual Chase account and funded that account by transferring $730,000 from the parties joint Citi Bank savings account. The plaintiff testified that the defendant had "tore up" her credit cards and she was concerned that the defendant "was going to cutoff all [her] money."^[FN10] She noted that as of the date of commencement, the joint savings account had a balance of $135,086.97, and it has a current balance of $24,113.38.

The plaintiff testified that she used a portion of the $730,000 to pay certain bills, including counsel fees, long-term healthcare insurance, physical therapy, and living expenses, and her account has a current balance of $548,000. She stated that she donates $50 a week to the church, and — with the defendant's consent - paid tuition costs for the parties' daughter's three children after their daughter became unemployed.

The plaintiff testified that the parties' joint Chase account has a current balance of $11,632, and that she used funds from that account to pay real estate taxes, carrying costs of the marital residence, and the cost of the defendant's home care. She requests that the balance of the funds held in her individual account and the parties' joint accounts be divided equally. She testified that she learned that the defendant has an individual Chase account with a balance of $539,481.03, which was funded with marital assets and requested that the account be divided equally. The plaintiff seeks to retain a Citi Bank savings account that she opened with her daughter that has a balance of $308.17.

The plaintiff testified that she has an IRA at Chase that has a balance of $18,485.25 as of November 30, 2022, and requested that the asset be divided equally between the parties. She stated that the defendant opened a retirement account at Morgan Stanley in March 2022, that has a balance of $6,531,888.29, and that the account was funded by five retirement accounts opened during the marriage at Fidelity. The plaintiff requested that the retirement account be divided equally between the parties and that any additional withdrawals be charged against the defendant's one-half share. She testified that she has a Merrill Lynch CMA account with a balance of $612,038.05, that was funded entirely by an inheritance she received following the death of her father.

After a break during the plaintiff's testimony, the defendant indicated that it was his understanding that the purpose of today's appearance was to schedule a trial date. The Court responded, "there is no doubt that today was a trial date, sir" and that he was "given [] almost two years to get a lawyer."^[FN11] The plaintiff's attorney added that during the course of this action the defendant adopted a strategy of obfuscation and delay. She noted that the statements of net worth filed by the defendant were "grossly inadequate and incorrect," he "refused to cooperate with the court or his attorneys," and "has elected to represent himself since September 21 [2021] at each and every stage of this proceeding."^[FN12] The plaintiff's attorney stated that the defendant did not appear at trial on the originally scheduled date of July 18, 2022, and that the Court adjourned the trial date based on the defendant's false representation that he had retained counsel who could appear on his behalf if the trial was postponed to fall 2021. She emphasized that the Court, upon learning that the defendant had not retained counsel, took the step to appoint a GAL for the defendant, and that the GAL was subsequently relieved after he indicated to the Court that he was "verbally abused by [the defendant]."^[FN13] The plaintiff's attorney emphasized that the defendant was aware that trial was scheduled to commence on January 11, 2023, and had an additional three months to retain counsel but never did. She requested that no additional time be afforded to the defendant to obtain representation. The Court agreed, noting that the defendant "still [has] the opportunity to participate in this trial," "cross-examine either [the plaintiff] or any [*3]other witnesses," and that he also may testify on his behalf.^[FN14]

After the plaintiff resumed her testimony, she asserted that an investment account held at Fidelity with a value of $1,054,360.03 as of November 30, 2022, should be equally divided between the parties. She stated that she is the title owner of a second account at Fidelity that had a date of commencement value of $1,098,868.41, and that she used a portion of those funds to pay for certain expenses incurred by the parties' daughter when their daughter was unemployed. The plaintiff indicated that the balance in that account as of the date of trial was $868,000, and requested that those funds be divided equally. She stated that over the course of this litigation she learned that the defendant receives lifetime partnership payments from Kelley Drye in the amount of $9,375 per month, and requested that the Court divide that income equally between the parties and deduct the cost of medical insurance for her from her one-half share.

When the plaintiff's direct examination concluded, the defendant stated that he was not prepared to proceed with cross-examination and that he wished to retain an attorney. The Court, after repeating that the defendant had ample notice of the trial date and that it "gave [him] two years to get an attorney," determined that the defendant waived his right to cross-examine the plaintiff.^[FN15] At that point, the plaintiff rested. After the defendant indicated that he was not prepared to testify and needed "time to get with [his] lawyer," the Court deemed the defendant to have rested.^[FN16]

In a closing statement, the plaintiff's attorney argued that each party made equal contributions over the course of their 62 year marriage, highlighting that the plaintiff was a dedicated wife, maintained the home, raised the parties' three adult children, and engaged in significant philanthropic work. She contended that throughout the litigation, the defendant adopted a strategy of delay, refusing to retain counsel despite his financial ability to do so and the repeated urging of the Court.

The plaintiff's attorney requested, among other things, that the plaintiff retain title of the marital residence and pay the defendant the amount of $975,000, representing his one-half share of the fair market value of the home. She asserted that the South Carolina home should be sold, that the Court grant the plaintiff a power of attorney to execute all documents on behalf of the defendant necessary to effectuate the sale, and that the net sale proceeds be divided equally between the parties. With respect to the parties' retirement accounts, the plaintiff's attorney contended that they should be equally divided between the parties as of November 30, 2022, and that Lexington Pension Consultants, Inc. should be appointed to prepare all qualified domestic [*4]relations orders (hereinafter QDROs) necessary to effectuate the division.

The plaintiff's attorney stated that the defendant's Morgan Stanley investment account ending x0080-273 and the plaintiff's Fidelity investment account ending x8941 should be equally divided as of November 30, 2022. She asserted that the plaintiff's Fidelity account ending x7931 should be divided equally as of date of division, noting that a portion of the funds in that account were used during the pendency of the action, with the defendant's consent, to pay for health insurance through Cobra on behalf of the parties' daughter and to pay tuition for the parties' three grandchildren. The plaintiff's attorney argued that the undisputed evidence demonstrates that the plaintiff's Merrill Lynch CMA account was her separate property and that no marital funds were ever commingled with that account. She argued that the parties' joint checking and savings accounts held at Chase should be equally divided as of date of division and closed. The plaintiff's attorney asserted that the defendant's Chase checking account ending x0203 should be equally divided as of November 30, 2022, subject to a credit to the defendant for any sums withdrawn from that account to pay for his necessary expenses. She contended that the funds in the plaintiff's Chase checking account were used to pay for the parties' living expenses, tuition for the parties' grandchildren, and counsel fees, and that the balance of that account should be equally divided as of date of division.

The plaintiff's attorney argued that the Court should issue an income execution order directing Kelly Drye to pay directly to the plaintiff a one-half share of the defendant's lifetime partnership payments, and that the cost of the plaintiff's medical insurance be deducted from her share for as long as she is eligible to receive health insurance through COBRA. The plaintiff's attorney asserted that the plaintiff incurred a total of $117,763.42 in counsel fees, and requested that the Court direct reimbursement to the plaintiff for all legal fees incurred in excess of her retainer of $15,000 off the top of the marital estate, prior to the division of assets. She contended that the defendant's unreasonable and untenable settlement positions needlessly increased litigation costs and, as a result of the defendant's obstructionist conduct, the plaintiff was forced to prepare for trial twice.

The defendant retained the law firm of Schlissel Ostrow Karabatos, PLLC for purposes of submitting a closing statement. In the closing statement, the defendant's attorney argued that the plaintiff was entitled to only a 25% share of the marital assets given that the defendant was the sole wage earner during the marriage and all of the marital assets were accumulated through his income. He noted that on February 12, 2021, while the defendant was hospitalized after suffering a fall, the plaintiff moved out of the marital residence and unilaterally transferred $730,000 from the parties' joint savings account into a checking account held solely in her name. The defendant's attorney noted that four days later, the plaintiff retained counsel and commenced this action for divorce. He argued that although the Court determined that the defendant was not capable of adequately protecting his rights due to his advanced age and medical condition, the Court did not appoint a replacement GAL and the matter proceeded to trial over the defendant's objection, who appeared pro se and virtually.

The defendant's attorney asserted that the plaintiff has refused to return the $730,000 in marital funds, despite the Court's direction to do so. He argued that her claim that she needed the money because the defendant cut off her access to marital funds defies logic given that she had access to the parties' joint bank accounts and had substantial assets under her sole control. The defendant's attorney contended that an award of 25% of the marital assets is equitable given that the plaintiff made no economic contributions to the marriage and the defendant's efforts and successful career as a labor lawyer enabled the plaintiff to pursue volunteer work, and provided the family with a comfortable lifestyle, which included two homes, vacations, and household help.

The defendant's attorney requested that the Court award the defendant a 75% share of the bank accounts, brokerage accounts, and retirement accounts as of the most recent statements in evidence, with the exception of the plaintiff's bank account ending x5593, which should be distributed based on the date of commencement value to account for the full $730,000 that the plaintiff wrongfully transferred. He also contended that the defendant should receive a 75% share of the net proceeds from the sale of the South Carolina home. The defendant's attorney noted that the defendant agrees to reside together with the plaintiff in the marital residence so long as he continues to enjoy exclusive use and occupancy of the second floor and both parties pay 50% of the expenses. He requested that in lieu of the plaintiff purchasing the defendant's interest in the marital residence, title to the property be transferred to the parties jointly with a right of survivorship. The defendant's attorney asserted, in the alternative, that the Court should direct the plaintiff to pay the defendant a 75% share of the value of the marital residence based on a current appraisal of the property.

The defendant's attorney further argued that the plaintiff is not entitled to an award of more than 10% of the defendant's lifetime partnership payment from Kelley Drye. He stated that the lifetime partnership payments are akin to a business asset and the plaintiff made only nominal, indirect contributions to the defendant's partnership at Kelley Drye. Finally, the defendant's attorney argued that the plaintiff should absorb the cost of her own counsel fees, emphasizing that she will receive approximately $2.9 million if she is awarded a 25% share of the marital assets, which does not include her $612,038.05 in separate property. He noted that the plaintiff's counsel fees at the time of trial of $87,853.40 had already been paid from marital assets and, thus, the defendant has effectively already paid 50% of those fees.

The parties entered into a stipulation filed on June 23, 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).

"Equitable distribution presents issues of fact to be resolved by the trial court and should [*5]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]).

Bank accounts, brokerage investment accounts and retirement accounts

After consideration of the relevant statutory factors, including, inter alia, that the parties were married for 62 years when this divorce action was commenced, the advanced age of the parties, their poor physical health, the defendant's successful career as an attorney, and the plaintiff's indirect contributions as a homemaker and primary caregiver of the parties' three, now adult, children (see Domestic Relations Law § 236[B][5][d]), the Court, with certain exceptions set forth below, awards the plaintiff a one-half share of the bank accounts, brokerage investment accounts, and retirement accounts, all of which were amassed during the marriage (see Kiani v Kiani, 197 AD3d 1168, 1169 [2d Dept. 2021]; DeMarco v DeMarco, 167 AD3d 709, 710 [2d Dept. 2018]; Krutyansky v Krutyansky, 289 AD2d 299, 299 [2d Dept. 2001]).

The Court rejects the defendant's contention that the plaintiff is not entitled to a one-half share of the marital assets on the ground that he was the sole wage earner. The evidence adduced at trial demonstrated that the plaintiff was devoted to the defendant during the marriage, was solely responsible for the upbringing of their children while the defendant worked long hours in the office, and the plaintiff performed substantially all of the usual and customary housekeeping duties (see Lee v Lee, 48 AD3d 377, 378 [1st Dept. 2008]). The undisputed evidence further established that the defendant supported the plaintiff's charitable endeavors and there was never any serious expectation that the plaintiff would work outside the home.

Thus, "[a]lthough there is no requirement that the distribution of each item of marital property be made on an equal basis, where both parties have made significant contributions during a marriage of long duration, a division of marital assets should be made as equal as possible" (Schwartz v Schwartz, 67 AD3d 989, 992 [2d Dept. 2009] [internal quotation marks [*6]and citations omitted]; see Taylor v Taylor, 140 AD3d 944, 946 [2d Dept. 2016]; Suydam v Suydam, 203 AD2d 806, 807 [3d Dept. 1994]).

The bank accounts and brokerage investment accounts shall be equally divided between the parties as of November 30, 2022, which is the date reflected on the most recent statements admitted into evidence, with the exception of the plaintiff's Citibank account ending x5593, which shall be divided as of the date of commencement. Although the plaintiff testified that she withdrew $730,000 from the parties' joint Citi Bank savings account because she was concerned that the defendant "was going to cutoff all [her] money,"^[FN17] the evidence adduced at trial established that the plaintiff had access to significant funds in the parties' joint bank accounts and had substantial separate property.

Notwithstanding the above, the plaintiff shall retain her Merrill Lynch CMA account ending x4E21, which holds the proceeds from an inheritance, and her Citibank savings account ending x2513, which the plaintiff holds title to jointly with the parties' daughter, as her sole and separate property.

The parties' respective retirement accounts are to be equally divided between the parties as of November 30, 2022. The parties shall submit any information necessary to Lexington Pension Consultants, or another mutually agreed upon company, in order to effectuate the division of the retirement accounts pursuant to QDROs. Any and all costs associated with the preparation of the QDROs shall be paid equally by the parties.

Lifetime partnership payments

The Court agrees with the defendant that the lifetime income he receives from Kelly Drye, having worked at that firm as a partner for nearly 60 years, is analogous to compensation for an interest in a business. In view of the plaintiff's indirect contributions as a homemaker and primary caregiver of the parties' children - which allowed the defendant to pursue his career and ambitions and amass significant wealth — the lack of any direct contributions made by the plaintiff to the defendant's business, the equitable distribution award, and the plaintiff's separate property, the plaintiff is awarded a 35% share of the defendant's lifetime partnership payments he receives from Kelly Drye (see Klevstadt v Klevstadt, 182 AD3d 592, 594 [2d Dept. 2020] [defendant awarded 35% of the value of plaintiff's interest in his law firm in view of her direct contributions to plaintiff's business, as well as indirect contributions as homemaker and caregiver of children during long-term marriage]; Sheehan v Sheehan, 161 AD3d 912, 914 [2d Dept. 2018] [plaintiff awarded 26% of the value of defendant's business based on her direct contributions to the business and indirect contributions as a homemaker and caregiver for the parties' children during long-term marriage]; Repetti v Repetti, 147 AD3d 1094, 1098 [2d Dept. 2017] [plaintiff awarded 30% share of defendant's interest in accounting firm and related companies in view of her "minimal direct and indirect contributions to the businesses, while not ignoring her contributions as the primary caretaker of the parties' children, which allowed the [*7]defendant to focus on the businesses]; Ciampa v Ciampa, 47 AD3d 745, 747 [2d Dept. 2008] [plaintiff awarded 35% of defendant's business interests where plaintiff had limited involvement in defendant's business, but made contributions as the primary caretaker of the children, homemaker, and social companion to defendant, while foregoing career as an attorney]).

The cost to continue health insurance coverage for the plaintiff shall be deducted from the plaintiff's 35% share of the defendant's lifetime partnership payments, for so long as the plaintiff is eligible to receive health insurance via COBRA.

The defendant is directed to remit payment to the plaintiff of her 35% share, less the cost of health insurance for her, within two weeks after the defendant is in receipt of each lifetime partnership payment from Kelly Drye.

The marital residence and the South Carolina property

It is undisputed that the marital residence was purchased by the parties in around 1978, title to the property was subsequently gifted to the plaintiff by the defendant, the property is unencumbered by a mortgage, and, based on the evidence admitted at trial, the property was appraised on three separate occasions as having a value of: $1,800,000 as of July 16, 2021; $2,100,000 as of December 28, 2021; and, $1,900,000 as of June 30, 2022. The record further established that the assessed value of the marital residence by the Town of Eastchester in 2021 was $34,100, which equated to a market value of $3,157,407, and that, upon the plaintiff's request, the Town of Eastchester provided a tentative reassessed value of the marital residence in June 2022, of $23,000 based on its finding that the marital residence "is grossly over-assessed."^[FN18]

The parties agree to reside in the marital residence together, with the defendant having exclusive use and occupancy of the second floor, the plaintiff having exclusive use and occupancy of the first floor, and the parties each paying one-half of the expenses associated therewith.

Although the plaintiff proposed that she retain title to the marital residence and pay the defendant $975,000, as representative of his one-half interest in the marital residence, the Court finds that under the circumstances of this case, including the longevity of the parties' marriage, the advanced age and ailing health of the parties, each of the parties' contributions to the marriage, that equity would best be served by directing the plaintiff to transfer title to the marital residence to the parties as joint tenants with rights of survivorship within 30 days from the date hereof.

With respect to the South Carolina property, which was apparently sold after the conclusion of trial, for the reasons set forth supra, the Court directs that the net sale proceeds be equally split between the parties.

Counsel fees

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

Although the parties are in a somewhat similar financial situation in view of the equitable distribution award, an award of counsel fees to the plaintiff is appropriate given the defendant's conduct throughout this litigation, which prolonged this matter and caused the plaintiff to incur unnecessary legal fees. The defendant's refusal to retain counsel at any point between August 2021, when his former counsel's motion for leave to withdraw was granted on consent, through the date of trial on January 11, 2023, despite the repeated urgings of the Court, caused significant delays in this proceeding. It cannot seriously be disputed that the defendant had the ability to retain counsel given that he has access to millions of dollars under his control. The Court appointed a GAL, however, the GAL was subsequently discharged when it became evident to the Court that the GAL was unable to carry out his duties and obligations given the defendant's unreasonable positions, cantankerous attitude, and offensive treatment of the GAL.

Under these circumstances, and considering the merits of the parties' respective positions as set forth in their closing statements, the plaintiff is awarded 75% of the total counsel fees ($117,763.42) incurred by the plaintiff in this action. The plaintiff's attorney acknowledged that the plaintiff paid $82,528.40 in legal fees from marital assets, and, therefore, the defendant has already made a contribution of one-half of that amount. Thus, the defendant is directed to pay to the plaintiff's attorney the amount of $47,058.37, from his share of the marital estate 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 the plaintiff shall retain her Merrill Lynch CMA account ending x4E21 and her Citibank savings account ending x2513 as her sole and separate property; and it is further,

ORDERED that the balance held in the plaintiff's Citibank account ending x5593 shall be equally divided between the parties as of the date of commencement, within 60 days of the date of this Decision After Trial; and it is further,

ORDERED that the balances held in any remaining bank accounts and brokerage investment accounts shall be equally divided between the parties as of November 30, 2022, within 60 days of the date of this Decision After Trial; and it is further,

ORDERED that the parties' respective retirement accounts shall be equally divided between the parties as of November 30, 2022. The parties shall submit any information necessary to Lexington Pension Consultants, or another mutually agreed upon company, in order to effectuate the division of the retirement accounts pursuant to QDROs. Any and all costs associated with the preparation of the QDROs shall be paid equally by the parties; and it is further,

ORDERED that the plaintiff is awarded a 35% share of the defendant's lifetime partnership payments he receives from Kelly Drye, and the cost to continue health insurance coverage for the plaintiff shall be deducted from her 35% share. The defendant is directed to pay to the plaintiff her 35% share, less the cost of health insurance for her, within two weeks after the defendant receives each lifetime partnership payment; and it is further,

ORDERED that the parties will reside in the marital residence together, with the defendant having exclusive use and occupancy of the second floor, the plaintiff having exclusive use and occupancy of the first floor, and the parties each paying one-half of the expenses associated therewith; and it is further,

ORDERED that the plaintiff shall transfer title to the marital residence to the parties as joint tenants with rights of survivorship within 30 days from the date of this Decision After Trial; and it is further,

ORDERED that the net sale proceeds of the South Carolina property shall be equally divided between the parties; and it is further,

ORDERED that the plaintiff is awarded 75% of the total counsel fees incurred by her in this action, and the defendant is directed to pay to the plaintiff's attorney the amount of $47,058.37, from his share of the marital estate within 30 days of the date of this Decision After Trial; and it is further,

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

ORDERED that the plaintiff shall settle Findings of Fact and Conclusions of Law, a Judgment of Divorce, and all other documents necessary to allow the Court to enter Judgment in accordance with this Decision After Trial, on at least five (5) days notice, within thirty-five (35) days of the date hereof. Failure to timely settle the Findings of Fact and Judgment of Divorce [*8]may result in this action being dismissed, or other appropriate sanctions.

The foregoing constitutes the decision and order of this Court.