On November 8 and 22, 2023, a nonjury trial was held as to certain issues concerning equitable distribution and counsel fees. After considering the sworn testimony of the parties, the credibility of the witnesses, and the documents admitted into evidence, the Court makes the following findings of fact and conclusions of law:

The parties were married on November 20, 1994, and are the parents of two emancipated children born in 1995 and 1999. In November 2022, the plaintiff commenced this action for divorce and ancillary relief by filing a summons and verified complaint. The defendant answered the complaint and counterclaimed for a divorce pursuant to DRL § 170(7).

In February 2023, the defendant filed a statement of net worth (hereinafter SNW), indicating that in 2022, she was employed as an office manager at Northwell Health and earned an annual gross income of $67,430.76. She also earned an additional $4,350.61 that year from a second job at New York-Presbyterian. The defendant listed monthly expenses totaling approximately $8,987.02, and assets which include a checking account with a current balance of $250, a savings account with a current balance of $4,561.44, and real property located at XXXXXX (hereinafter the Mahopac property). The defendant indicated that she has retirement accounts held at Northwell Health with a total value of $45,719.51 and two BMW vehicles titled [*2]in her name. The defendant's liabilities include credit card debt totaling over $23,000 and the mortgage on the Mahopac property. In October 2023, the defendant filed an updated SNW, which listed property purchased by the parties in 2002 in Albania as a marital asset.

In May 2023, the plaintiff filed a SNW indicating that he was employed as a custodian and earned an annual gross income of $66,257. He listed monthly expenses totaling $5,756.58 and assets which include a Chase checking account with a current balance of $2,408, a Chase savings account with a current balance of $51,070, a Wells Fargo savings account with a current balance of $45,990, and the Mahopac property. The plaintiff indicated that he also has a pension and a 401(K), but does not list the date of commencement values. He listed the mortgage on the Mahopac property as a liability.

On October 31, 2023, the Court gave notice to the plaintiff that he is precluded from offering any evidence at trial based on his failure to upload evidence to the virtual evidence room ten days in advance of trial in accordance with the Court's trial rules and that "[t]his matter will proceed as an inquest on Defendant's counterclaims."^[FN1]

The inquest was held over the course of two nonconsecutive days, commencing on November 8, 2023, and ending on November 22, 2023. At the outset, the Court overruled the plaintiff's attorney's objection to the Court's prior ruling that the plaintiff was precluded from offering any evidence at the inquest. The plaintiff was, however, permitted to provide testimony on his own behalf with the aid of an Albanian interpreter.

The defendant testified that the parties were married on November 25, 1994, and have two emancipated children. She stated that the parties purchased the Mahopac property on March 14, 2022, for the amount of $411,000 and obtained a mortgage in the principal amount of $328,800. The defendant asserted that on April 1, 2022, the plaintiff took all of his clothing, a sofa, and a bed, and abandoned the home without notice. She contended that between April 1, 2022, and the date of trial, the plaintiff made no contributions toward the mortgage, utilities, and other expenses of the Mahopac property. The defendant testified that she made all payments toward the mortgage, which had a remaining balance of $319,645 as of October 2023.

The defendant testified that she has two retirement accounts with her employer Northwell Health. She stated that for the period of October 1, 2022 to December 31, 2022, her 403(b) account had a beginning balance of $19,635.93, and her 401(k) plan had a beginning balance of $12,982.59. The defendant testified that in November 2022, after the commencement of this action, she opened a retirement account with New York-Presbyterian.

The defendant testified that the parties bought land in Albania in around 2002, and until 2017, they sent significant sums of money to the plaintiff's family in Albania to use toward building a house on the property. Copies of bank statements from the parties' joint Chase savings account showing withdrawals in varying amounts between 2002 and 2019 were admitted into evidence. She noted that at some point prior to July 2018, she was removed as an owner of that account. The defendant explained that in March 2006, the plaintiff transferred funds to his brother in Italy because the money would reach Albania more quickly.

The defendant testified that the plaintiff traveled to Albania at least twice a year to oversee the construction. The defendant testified that she is listed on a document that is "equal to a deed" to the Albanian property under her maiden name.^[FN2] She noted that in around 2005, the parties arranged for a Toyota Tundra to be shipped to the property. Photographs of the Albanian property, copies of airline tickets, and a document written in Albanian were admitted into evidence.

The defendant testified that the plaintiff had been driving a 2009 BMW, which had a Kelly Blue Book of approximately $3,771, until it was recently totaled. She testified that as of November 2022, her Home Depot credit card had a balance of $5,980.88, and she paid it off in full by August 2023, without any contribution from the plaintiff. The defendant added that she also paid off all credit card balances with T.J. Maxx, Costco, and American Express by October 2023, without any contribution from the plaintiff. She contended that those credit card charges were incurred to pay for the parties' living expenses and her counsel fees. The defendant testified that after the commencement of this action, she leased a BMW and the plaintiff has made no contributions toward the payments. She stated that in July 2023, the parties' daughter sent her $6,000 via Zelle to use toward her living expenses and credit card debt, and she has not yet been able to repay the daughter.

According to the defendant, the plaintiff failed to comply with the notice of discovery by providing records related to his retirement accounts even after her attorney sent a demand letter. She testified that she knows the plaintiff has retirement accounts since he has worked for the Board of Education for over 27 years. The defendant testified that as of November 2022, the plaintiff's Chase checking account ending 9065 had a balance of $2,229.65 and his Wells Fargo account had a balance of $45,962.19, and she is seeking a one-half share of those accounts. The defendant testified that her earnings were deposited in the plaintiff's Chase savings account ending 1001 up until May 12, 2022, at which time the account had a balance of $89,037.22, and she is seeking a one-half share of that account. She claimed that the defendant subsequently withdrew all of the money from that account.

On cross examination, the defendant acknowledged that the document written in Albanian and admitted into evidence as defendant's exhibit K-3 was not the deed to the Albanian property and does not list the address of the Albanian property. Although she initially testified that it is a certificate that "says that this family is going to own this property of the land" and lists six other family members in addition to herself and the plaintiff,^[FN3] she later explained that the document is a "family certificate" and does not indicate "actual[] ownership," but instead, lists who is "going to be living in this property."^[FN4] The defendant insisted that the cash withdrawals from the parties' joint Chase savings account was used toward the Albanian property. She stated that the parties purchased the Albanian property, which was vacant land, for $13,000, and they spent approximately $120,000 to build the house. The defendant surmised that the value of the [*3]Albanian property was "at least 200,000."^[FN5]

The defendant testified that during the marriage she drove a Jeep, which was gifted to her by the plaintiff in 2015. She acknowledged that the trade-in value was $7,500, and she used that money post-commencement to acquire a used 2020 BMW. The defendant claimed that the BMW the plaintiff totaled had a "junk value" of $500, which she has not received.^[FN6]

The defendant testified that she is employed full-time at Northwell Health and had to start a second job on the weekends at New York-Presbyterian, where she works approximately 7.5 hours per week and earns an annual salary of approximately $30,000. The defendant asserted that the purchases on the Home Depot and T.J. Maxx credit cards were for groceries, gas, clothing, and household items. She acknowledged that the largest charge on the American Express credit card was $3,500 to pay her attorney's retainer fee. The defendant testified that the downpayment for the Mahopac property was made using the proceeds from the sale of the parties' co-op where they previously resided.

The defendant rested at the conclusion of her testimony. On the second day of trial, the plaintiff was called to the stand. He testified that he does not and has never owned any property in Albania. The plaintiff stated that the parties paid a downpayment of $98,000 for the Mahopac property and the source of those funds was his income from three jobs and the sale proceeds from the parties' co-op. He testified that his Chase account has a current balance of approximately $41,000 and his Wells Fargo account has a current balance of approximately $45,000. The plaintiff stated that in around April 2022 and September 2022, he gave each of the parties' two children $10,000 from the Chase account as college graduation gifts. He testified that the Jeep was a "family car" and was not a "gift" to the defendant.^[FN7] The plaintiff claimed that the BMW he was driving was "not working anymore" because "the belt was broken."^[FN8] He stated that the furniture in the Mahopac property was marital property from the co-op. Although the plaintiff testified that the parties had been living separately for eight years, he confirmed on cross-examination that he moved out of the Mahopac property in April 2022. When asked whether he made any contribution toward the mortgage, the plaintiff answered, "I was paying at another place."^[FN9] He also indicated that he made no payments toward the defendant's American Express, Costco, T.J. Maxx, and Home Depot credit cards because they are not in his possession. According to the plaintiff, he maintained three jobs at the same time and his bank statements would reflect that he gave $10,000 to each daughter.

Only the defendant submitted a statement of proposed disposition setting forth her proposal regarding the issues of equitable distribution and counsel fees, and indicating that she is not seeking an award of maintenance. Neither party submitted a closing statement despite the [*4]Court directing them to do so within 30 days after the conclusion of the inquest.

Conclusions of Law

Grounds for Divorce

In the summons with notice filed on April 29, 2019, the plaintiff alleged an irretrievable breakdown of the marriage for a period six months prior to commencement of the action (see DRL § 170[7]), as the sole ground for the divorce. In an answer, the defendant interposed a counterclaim seeking a divorce on the same ground.

The parties' sworn testimony at trial, as detailed above, sufficiently demonstrated that the marriage had irretrievably broken down for a period of at least six months. Accordingly, since the matter proceeded as an inquest on the defendant's counterclaim, the Court grants the defendant 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 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]).

Here, the parties were married for approximately 28 years when the plaintiff filed for divorce in November 2022. The parties' respective SNWs and the evidence admitted at trial reflect that they earned similar incomes prior to the commencement of this action. The defendant reported that she earned an annual gross income of $67,430.76 at her full-time job with Northwell Health, and the plaintiff reported that he earned an annual gross income of $66,257 through his employment with New York City School Support Services. At trial, the defendant testified that she started working a part-time job on the weekends post-commencement to earn additional income. There was no evidence indicating that either party is in poor health.

The Mahopac property and Albanian property

The Mahopac property, which was purchased by the parties in March 2022 for the amount of $411,000, must be characterized as marital property since it was acquired by the parties during the marriage, albeit only eight months before the plaintiff commenced this action for divorce in November 2022 (see Domestic Relations Law § 236[B][1][c]; Shkreli v Shkreli, 142 AD3d 546, 548 [2d Dept. 2016]). It is undisputed that marital funds were used for the downpayment on the Mahopac property, but the plaintiff does not refute the defendant's testimony that she, alone, has made all payments toward the mortgage and other expenses of the Mahopac property since April 2022, when the plaintiff abandoned the home within one month after it was purchased.

Under these circumstances and after consideration of the relevant statutory factors, including, inter alia, the length of the marriage, the financial resources of the parties, and that the only contribution made by the plaintiff toward the Mahopac property was his one-half share of the downpayment (see Domestic Relations Law § 236[B][5][d]), the defendant is awarded sole title and ownership of the Mahopac property and the plaintiff is awarded the amount of $49,336.23, which is representative of his one-half share of the downpayment (see Guarnier v Guarnier, 155 AD2d 744, 744-745 [3d Dept. 1989]). Although "a marital residence is generally valued as of the date of the trial in order to avoid the injustice to one spouse which could result from either appreciation or depreciation in the value of the residence between the date of commencement of the action and the date of trial" (Collins v Donnelly-Collins, 19 AD3d 356, 357 [2d Dept. 2005] [internal citations and quotation marks omitted]), the record is bereft of any evidence of any efforts by the plaintiff that could have contributed to an increase, if any, in the value of this asset. The record plainly demonstrates that the plaintiff left the Mahopac property within one month after it was purchased, leaving the defendant responsible for maintaining the home and paying the mortgage and other living expenses associated therewith.

The defendant shall retain exclusive use and occupancy of the Mahopac property, which she has enjoyed since April 2022. The defendant, as the sole owner of the Mahopac property, shall retain responsibility for repayment of the mortgage, shall hold the plaintiff harmless from any and all payments due under the mortgage, and take all reasonable steps necessary to remove his name from the mortgage. In that regard, based on the plaintiff's delaying tactics throughout this proceeding (as set forth more fully below), the defendant is appointed receiver to effectuate the transfer of ownership of the Mahopac property from the parties to her alone (see Saks v Saks, 199 AD3d 948, 950 [2d Dept. 2021]).

The award of $49,336.23 in favor of the plaintiff is to be deducted from the defendant's share of her net equity in the plaintiff's checking and savings accounts, as discussed more fully below.

With respect to the Albanian property, aside from the defendant's somewhat vague testimony, there is no competent evidence in the record reflecting whether the parties are the sole owners of the Albanian property or whether they own the Albanian property together with extended family members. In fact, there is no documentary evidence demonstrating that the parties hold any ownership interest in the Albanian property. The defendant relies solely upon what has been identified as a "family certificate" that is not a deed, is written in Albanian, and does not even list the address of the Albanian property. Although the Court credits the defendant's testimony that the parties contributed financially toward the purchase of land in Albania and the construction of a home (as opposed to the plaintiff who categorially denied having any ownership interest in property in Albania), there is no evidence substantiating the [*5]defendant's testimony that the cash withdrawals identified by the defendant from the parties' joint Chase savings account was used for those purposes. Moreover, there is no proof whatsoever in the record providing any support for the defendant's testimony that the value of the Albanian property is at least $200,000 to warrant a monetary award in her favor. Under these circumstances, each party is awarded a one-half share of their ownership interest, if any, in the Albanian property.

Bank accounts and retirement accounts

The parties are awarded a one-half share of the value of all bank accounts held in their individual names as of the date of commencement of the action, to wit, November 1, 2022. It is undisputed that the Chase savings account ending x1001 was jointly held by the parties until around 2018, when the defendant's name was removed as an owner of that account. The evidence demonstrates that the parties thereafter maintained separate accounts wherein marital funds were deposited and their living expenses were paid. The defendant is awarded $40,433.55, which represents one-half of the balance held in the plaintiff's Chase savings account ending x1001 ($80,867.10); $22,982.44, which represents one-half of the balance held in the plaintiff's Wells Fargo savings account ending x5733 ($45,964.89); and $940.27, which represents one-half of the balance held in the plaintiff's Chase checking account ending x9065 ($1,880.55).

Thus, after deducting the award of $49,336.23 in favor of the plaintiff from the total amount of the defendant's share of the aforementioned accounts ($64,356.26), the defendant is awarded $15,020.03, to be paid by the plaintiff to the defendant from the Chase savings account ending x1001 within 30 days of the date of this decision.

With respect to plaintiff's account ending x1001, the Court declines to use the value of that account as of April 2022, given the plaintiff's unrefuted testimony that he gifted each of the parties' children $10,000 upon their college graduation, which explains the shortfall of approximately $20,000 in that account.

It bears noting that no evidence was admitted at trial reflecting the value of the defendant's accounts as of the date of commencement. The defendant's original SNW indicated that as of February 2023, her Chase checking account ending x5737 had a balance of $250 and her Chase savings account ending x3097 had a balance of $4,561.44. The defendant is directed to provide the plaintiff with proof of the value of those accounts as of the date of commencement within 30 days of the date of this decision and to pay to him one-half the value within 10 days thereafter.

"[P]ension and retirement benefits belonging to either spouse attributable to employment during the marriage constitute marital property subject to equitable distribution upon divorce" (McGrath v McGrath, 261 AD2d 369, 370 [2d Dept. 1999]). Here, with the exception of the defendant's retirement savings plan with New York-Presbyterian which was opened post-commencement, the Court directs that the marital portion of the plaintiff's 32BJ 401(K) and 32BJ pension plan, and the defendant's 403(b) and 401(k) accounts with Northwell Health, between the date of marriage and the date of commencement of this action, be divided equally between the parties according to the Majauskas formula (see Majauskas v Majauskas, 61 NY2d 481 [1984]), with any costs incurred in the preparation of a Qualified Domestic Relations Order or Domestic Relations Order to be shared equally between the parties. Counsel for the parties shall arrange to obtain and submit a proposed Qualified Domestic Relations Order or Domestic [*6]Relations Order, whichever applicable, with notice of settlement, to the Court within 60 days of the date of this decision.

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

Credit card debt and other miscellaneous issues

The defendant is awarded a credit in the amount of $9,545.18, which represents a one-half share of the marital debt accumulated on the Home Depot, T.J. Maxx, and Costco credit cards as of the date of commencement, to be paid by the plaintiff to the defendant from the Chase savings account ending x1001 within 30 days of the date of this decision. The plaintiff did not refute the defendant's testimony that the credit cards were used by the parties during the marriage to pay their living expenses and the defendant submitted proof that she paid off those credit cards post-commencement without any contribution by the plaintiff (see Glessing v Glessing, 181 NYS3d 650, 653 [2d Dept. 2023]; Lamparillo v Lamparillo, 130 AD3d 580, 582 [2d Dept. 2015]). Since the Amex credit card was used to pay the defendant's attorney's initial retainer of $3,500, the Court will address that debt in the context of the issue of counsel fees, discussed infra.

The defendant is awarded sole interest in the 2020 BMW, subject to the existing loan. The Court declines to issue any award to the defendant related to the 2005 Toyota Tundra, which was shipped to Albania more than 15 years ago in 2008. There is absolutely no reliable evidence regarding the current condition of that vehicle, except the defendant's testimony that when she last visited Albania in July 2021, she was able to start the engine.

The defendant requests an award of counsel fees in the amount of $11,737.50 based on the plaintiff's dilatory and vexatious conduct. At trial, detailed billing records and invoices from her attorney were admitted into evidence. The defendant testified that she incurred unnecessary fees resulting from the plaintiff's ongoing refusal to cooperate with discovery and provide financial documents regarding his retirement account and pension plan and his failure to appear in Court on February 17, 2023, at a scheduled appearance.

"In determining whether to award final counsel fees at the end of trial, a more detailed inquiry is warranted and the court must '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'" (Duval v Duval, 144 AD3d 739, 743 [2d Dept. 2016], quoting DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]). "The court may also consider 'whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation'" (Fredericks v Fredericks, 85 AD3d 1107, 1108 [2d Dept. 2011], quoting Prichep v Prichep, 52 AD3d 61, 64 [2d Dept. 2008]). "At that point, the court is in the best position to determine whether counsel fees should be charged to the moneyed spouse, or charged to the less moneyed spouse as an offset against the equitable distribution award ultimately received, or divided between the parties" (Duval v Duval, 144 AD3d 739, 743 [2d Dept. 2016]).

Here, although the parties earned similar incomes as of the date of commencement of this action, the evidence demonstrates that the defendant is now earning additional income, but only because she was forced to obtain a part-time weekend job in order to cover her living expenses [*7]and the expenses of the Mahopac property in the absence of any contribution by the plaintiff. The Court also agrees with the defendant that the plaintiff's conduct during this action contributed to a delay of the proceedings and unnecessary litigation, and prevented resolution of this otherwise straightforward matter. Under these circumstances, including the division of marital property, the limited financial resources of the parties, and that the plaintiff was apparently provided legal representation at little to no cost through his union membership, the defendant's request for an award of counsel fees is granted to the extent that she is awarded the amount of $8,200, to be paid by the plaintiff to the defendant from the Chase savings account ending x1001 within 30 days of the date of this decision.

All other claims for relief not specifically addressed herein are denied.

Accordingly, it is hereby,

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

ORDERED that the defendant is awarded sole title and ownership of the Mahopac property and is appointed receiver to effectuate the transfer of ownership of the Mahopac property from the parties to her alone; and it is further,

ORDERED that the defendant shall retain exclusive use and occupancy of the Mahopac property. The defendant, as the sole owner of the Mahopac property, shall retain responsibility for repayment of the mortgage, shall hold the plaintiff harmless from any and all payments due under the mortgage, and take all reasonable steps necessary to remove his name from the mortgage; and it is further,

ORDERED that the plaintiff is awarded the amount of $49,336.23, which is representative of his one-half share of the downpayment on the Mahopac property; and it is further,

ORDERED that the defendant is awarded the total amount of $64,356.26, representing a one-half share of the value of the plaintiff's savings and checking accounts as of November 1, 2022; and it is further,

ORDERED that after deducting the award of $49,336.23 in favor of the plaintiff from the defendant's share of her net equity in the plaintiff's checking and savings accounts, to wit, $64,356.26, the defendant is awarded the amount of $15,020.03, to be paid by the plaintiff to the defendant from the Chase savings account ending x1001 within 30 days of the date of this decision; and it is further,

ORDERED that the defendant shall provide the plaintiff with proof of the value of all savings and checking accounts held in her individual name as of the date of commencement within 30 days of the date of this decision and shall pay to the plaintiff one-half the value of those accounts within 10 days thereafter; and it is further,

ORDERED that each party is awarded a one-half share of their ownership interest, if any, in the Albanian property; and it is further,

ORDERED that the marital portion of the plaintiff's 32BJ 401(K) and 32BJ pension plan, and the defendant's 403(b) and 401(k) accounts with Northwell Health, between the date of marriage and the date of commencement of this action, be divided equally between the parties according to the Majauskas formula (see Majauskas v Majauskas, 61 NY2d 481 [1984]), with any costs incurred in the preparation of a Qualified Domestic Relations Order or Domestic Relations Order to be shared equally between the parties. Counsel for the parties shall arrange to obtain and submit a proposed Qualified Domestic Relations Order or Domestic Relations Order, [*8]whichever applicable, with notice of settlement, to the Court within 60 days of the date of this decision; and it is further,

ORDERED that the defendant is awarded a credit in the amount of $9,545.18, which represents a one-half share of the marital debt accumulated on the Home Depot, T.J. Maxx, and Costco credit cards as of the date of commencement, to be paid by the plaintiff to the defendant from the Chase savings account ending x1001 within 30 days of the date of this decision; and it is further,

ORDERED that the defendant is awarded sole interest in the 2020 BMW, subject to the existing loan; and it is further,

ORDERED that the defendant's request for an award of counsel fees is granted to the extent that she is awarded the amount of $8,200, to be paid by the plaintiff to the defendant from the Chase savings account ending x1001 within 30 days of the date of this decision; and it is further,

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

ORDERED that the defendant 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.