The parties to this matrimonial action were married on December 26, 1998 and have two children, a daughter born August 27, 2008, and a son born August 27, 2010. The action was commenced on November 4, 2011 and came before the Court for a bench trial on September 25, 2013, November 13, 2013 ^[FN1], January 21, [*2]2014, and January 22, 2014. Post-trial briefs have been submitted by both parties. This Decision and Order constitutes the Court's Findings of Fact and Conclusions of Law in accord with Rule 202.50. The Court has jurisdiction under DRL §230.

Prior to the commencement of the trial, on consent, an Order (Devine, J.) was issued on July 16, 2013, by which defendant was awarded sole legal and physical custody of the children, with parenting time defined for plaintiff. A further Order was issued on July 23, 2013, on consent, by which the parties agreed "that the value of the Clear Light Diamond Company or Clear Light, Inc., the husband's business, is valued at $8.4 million dollars"..."that said business is a marital asset"... "that said value is based on inventory only"... and "that the issue as to each party's equitable share of said business shall be determined by further stipulation of the parties or in the event of no such stipulation, by the Court after hearing evidence at trial". These orders reflected a stipulation placed on the record on May 17, 2013, at which time the parties signed an Affidavit of Appearance and Adoption of Oral Stipulation as to the issues resolved (TT 4-5).

At the commencement of the trial, defendant stipulated to amend her answer by consenting to a divorce in plaintiff's favor pursuant to Domestic Relations Law §170[7], irretrievable breakdown of the marital relationship for more than six months as set forth in the complaint (TT p. 2-3). Given that plaintiff personally verified the Complaint, the Court granted the application.

The trial proceeded to address the equitable distribution of the marital assets, as well as defendant's claim for maintenance, child support and attorney/expert fees. With respect to the latter item, the Court instructed the parties that in the event the Court determined that a fee award was in order, the amount of said award would be determined on further submission and a hearing, if necessary (TT 446-447).

EQUITABLE DISTRIBUTION. In rendering an equitable distribution award, the Court is required to consider the factors set forth in DRL §236[B][5][d][g]. As indicated, the parties were married in December, 1998. They have lived apart since May, 2010, when defendant left the marital residence with their daughter and when she was six months pregnant with their son (TT 345). Plaintiff is now 39 years old and defendant is 38. Prior to their marriage, plaintiff had been trained in his family's diamond business in India. He came to New York in August, 1997 and incorporated Clear Light, a business involving the importing and wholesale distribution of diamonds (TT 36-39). Plaintiff is the sole owner and president of Clear Light (TT 39). For her part, defendant was employed at Merrill Lynch at the time of the marriage (TT 297). She left Merrill [*3]Lynch in 2000 and became engaged in non-profit management work. Between 2002-2004, defendant obtained an MBA from the FUQUA School of Business at Duke University (TT 301-302; 321-322). She also obtained a Gemological Institute of America (GIA) certification in 2004 (TT 227-228; 404; 414-415). The record shows that defendant was actively engaged in both non-profit work and work at Clear Light until the parties first child was born in 2008. At that time, by mutual agreement, defendant became the primary caretaker for the family while reducing her work activities (TT 336; 407-408).

1. Clear Light, Inc. While plaintiff testified he formed the Clear Light business upon coming to New York in 1997, as indicated, the parties have stipulated that Clear Light is a marital asset with a value of $8.4 million dollars. The parties seemingly recognize that plaintiff should retain ownership of Clear Light, an outcome that makes great sense given his extensive involvement in the company and his expertise. At issue is the extent of defendant's equitable interest in this business. In a marriage of long duration, as here, where both parties have made significant contributions, the marital assests should generally be divided as equally as possible, but "there is no requirement that the distribution of each item of marital property be on an equal 50-50 basis" (Arvantides v. Arvantides, 64 NY2d 1033, 1034; see Quinn v. Quinn, 61 AD3d 1067, 1069-1070; Chalif v. Chalif, 298 AD2d 348, 349). As reflected in the work history recited above, defendant's active engagement in Clear Light began in 2004 after she received her MBA and GIA certification. Prior thereto, she was engaged in her own employment activities and acknowledged that her role in Clear Light "was at the start of the marriage very much on the periphery" (TT 403). While plaintiff maintains defendant had little involvement in Clear Light, the Court accepts defendant's testimony, as buttressed by the exhibits reflecting her efforts, that she was extensively engaged in the business during the 2004-2008 period. This is particularly so with respect to her development of the "Elements" in colored diamonds project through every phase, from creating the concept, copyright, tradesmark, website design and marketing (TT 329; 405, 410; 412; 420; 423). Plaintiff's attempts to explain away his ongoing, extensive e-mail communications with defendant about the business as simply sharing information with his spouse, are not convincing. She is clearly a well educated, competent individual who played an important role in the business. That plaintiff is the key person at Clear Light does not diminish her efforts. Moreover, the Court accepts defendant's testimony that the parties mutually agreed in 2008 that defendant would reduce her work efforts to become the primary caretaker of their child. There is no question [*4]in this record that defendant has assumed primary responsibility for the care and upbringing of their two children since 2008, and continuing. Her contributions as homemaker are a significant factor in gauging defendant's equitable interest in Clear Light (DRL §236[B][5][c][6]). By his own testimony, plaintiff has dedicated his time and effort to the development of the business — a commitment he has been able to pursue only through defendant's efforts in caring for the children. Also, it is important to recognize that in retaining Clear Light, plaintiff has the benefit of the "Elements" work product. While he maintains "Elements" is of no value and not utilized, the record confirms that "Elements" remains a prominent feature on the Clear Light website (TT 410-411). That defendant was not paid a salary at Clear Light, with the exception of one $4,000 payment in July, 2007 is of no moment (see Exhibit "R"; TT 221-222). She convincingly testified that plaintiff effectively refused to put her on the payroll (TT 313-314). The absence of a salary does not negate defendant's actual work efforts on behalf of Clear Light (see Keil v. Keil, 85 AD3d 1233).

Given the above, the Court awards to defendant a 30% interest in Clear Light, which calculates to a payment due from plaintiff to defendant in the amount of $2,520,000 (see Holterman v. Holterman, 3 NY3d 1, 7-9; Arvantides v. Arvantides, supra, 64 NY2d 1033; Hammock v. Hammock, 20 AD3d 700, 705, app dsmd 6 NY3d 807; Quinn v. Quinn, supra, 61 AD3d, at 1069-1070).

2. CONDOMINIUM. The parties have stipulated that the value of their condominium apartment located on East 47th Street in New York City is $2,500,000, in accord with the February 22, 2012 appraisal prepared by Vanderbilt Appraisal Company (Court Exhibit "1"; TT 6-7). The condominium was acquired during the marriage and is a marital asset. As indicated, defendant left the marital residence in May, 2010, and plaintiff continues to reside there. Notably, sometime in late 2012/early 2013, the condominium was remodeled under plaintiff's direction, without notice to defendant. For her part, defendant testified that she was not seeking an award of the condominium, but half the appraised value (TT 438-442). As such, the Court awards title of the condominium to plaintiff - except as noted below. In turn, defendant is awarded her half share of the value, i.e. $1,250,000. In addition, since plaintiff failed to inform the defendant of the 2012/2013 renovation work on the condominium, and has maintained exclusive occupancy of the condominium since May, 2010, plaintiff is obligated to hold harmless and indemnify defendant for any damages arising out of the third-party injury claim relating to the renovation work (see Exhibit "DD"; TT 438-442). This is particularly so since it appears plaintiff failed to maintain liability [*5]insurance coverage for the condominium (Id).

3. OTHER PERSONALTY. A listing of the other personal property owned by the parties, including the contents of the condominium, was received in evidence as plaintiff's Exhibit "1" (TT 77-81; 363-364). There are a variety of disputes concerning the property as described below.

a. To begin, plaintiff testified that he wanted to retain the following items: a didgeridoo instrument, a Norman Rockwell lithograph, a Cezanne lithograph, a Degas lithograph and a statue (presumably the "Bronze Chola Parvati Statue" listed in Exhibit "1") (TT 89-90). Defendant raised no objection to this request, provided she received commensurate compensation (TT 393-395). The only indication of value for these items is set forth in Exhibit "1" - and no objection was raised as to the values listed. As such, plaintiff is awarded the above listed items while defendant is awarded $11,200, based on 50% of the values listed.

b. The black mask from Africa and sheepskin are defendant's separate property and in her possession (Exhibit "1"; TT 395-396). The Court accepts defendant's characterization that the remaining items listed in the "Large Value separate property gifted to/purchased/ owned by N___" on Exhibit "1" are defendant's separate property. Also, the Court further awards to defendant all of the items listed in Exhibit "1" under the category "Need to return the following (some of these were gifts from family/friends)" (TT 395-397). The defendant is directed to take steps to retrieve her personal items from the condominium within ninety (90) days of the date this Decision and Order is issued; and plaintiff is directed to accomodate a reasonable schedule for the removal of the items.

c. Raja Ravi Varna paintings (three). The record shows that these paintings were purchased for the sum of $750,000 and are presently being held in India by plaintiff's mother. The circumstances of the acquisition are in dispute. Plaintiff initially testified that the paintings were purchased by his mother with funds provided by his father (TT 198-199). When pressed, plaintiff testified "I think it was a loan. It wasn't a gift" (TT 199-201). Defendant testified that plaintiff utilized $750,000 of marital funds to purchase the paintings as an investment for themselves (TT 364-368). Notably, she further explained that the "paintings are only allowed by Indian Law to be in museums" (TT 365) and that plaintiff "would not ever be able to bring the paintings to America because of the museum value. The fact that it is against Indian Law" (TT 367). Given the above, the Court grants defendant's request for an award of $375,000, representing her half share of the marital funds used to purchase the paintings. As between the parties, the Court awards ownership of the paintings to plaintiff, subject to the limitations of Indian [*6]Law.

d. Jewelry. Defendant testified that jewelry she obtained at the time of their wedding in Mumbai was still being held by plaintiff's family (TT 383-386). As explained by defendant, "It is a tradition of Indian families, the men, the groom's family holds the daughter-in-law's jewelry as a symbolic sort of dowry in essence" (TT 386). In contrast, plaintiff maintains the jewelry was a gift to both parties, testifying "There were many other gifts that were given by my parents to us. This is Asian mentality...But they have gifted it to us, their son and daughter-in-law" (TT 94-95). The Court credits defendant's explanation that the jewelry gifted to her at the time of the wedding and presently being held in India by plaintiff's family is defendant's separate property and must be returned to her directly (TT 383-387). As defendant suggests, delivery may be accomplished by plaintiff having the jewelry, as identified in this record (Id), delivered to defendant's designated family member in India (TT 387). In the event all the jewelry as described is not delivered to either defendant or her designated family members within thirty (30) days of the date this Decision and Order is served with notice of entry, then defendant shall be entitled to a judgment against plaintiff in the amount of $75,000, less the value of any items actually delivered (TT 385).

e. Household furniture. Plaintiff testified that he discarded a variety of household furniture, including six Maurice Valency dining chairs, due to mold, wear and tear over a ten year period, and water damage caused by a hurricane after defendant left the household in 2010 (TT 83-86). He also relocated a large cabinet and a large glass dining table to his office (TT 83). He also testified that defendant took all the pots and pans, cookbooks and other miscellaneous items (TT 87). As for the water damaged items, plaintiff testified certain items were donated to the Salvation Army or the building handyman (TT 88; 211-212; see Exhibit "L"). He did not file an insurance claim for the water damage (TT 142). Plaintiff also gave away several rugs (TT 206), while retaining one Lavar rug (TT 207).

Defendant testified that plaintiff never informed her of the water damage at the apartment (TT 359). She further explained their apartment is on the 26th floor of a building she described as "storm and fire proof" (TT 360). She also produced certificates of authenticity for the rugs, provided at the government sponsored auction where the rugs were purchased (TT 361-362). There are six certificates dated May 30, 2003 with values assigned as follows: Fine Tabriz Silk - $18,500; Agra Satin - $4,200; Fine Tabriz Silk - $9,800; Fine Lavar - $9,800; Fine Lavar - $13,500; and Bakhtiari - $12,500 (Exhibit "M"). Defendant explained the [*7]Maurice Villency chairs were purchased in 2009 at a cost of $4,000 (TT 393).

The Court finds plaintiff's explanation for the damaged/missing apartment items completely unconvincing. To claim extensive water damage without filing an insurance claim undermines his credibility. As such, defendant is entitled to half the value of the marital items noted above. The certificates of authenticity provide an "appropriate retail replacement value" for the rugs as of May 30, 2013 in the total amount of $68,300. The Villency chair cost $4,000 and the Exhibit "1" list assigns a value of $55,000 to the furniture and $11,500 to a television (see TT 391-392). The Exhibit "L" list assigns a value of $25,000 to the donated items which includes two of the rugs. Given the above and considering the depreciation in value based on wear and tear, the Court awards to defendant the sum of $50,000, with plaintiff allowed to retain the remaining apartment items referenced.

f. Automobile. The plaintiff is presently driving a Porsche Cayenne he purchased "a few years ago, 2008, 2009" for a "Hundred Thousand something" (TT 277). Defendant is driving a car temporarily loaned to her by her parents. As such, the Court awards $50,000 to defendant, representing her half of the marital funds used to purchase the Porsche.

g. Citibank Account. The parties stipulated that as of the date of commencement, there was $414,253.17 in a Citibank account, and a balance of $304,083.18 as of September 24, 2013, the day before the trial began (TT 118-119). During this period, plaintiff withdrew $50,000 from the account (TT 195).

By Order (Walsh, J.) entered October 19, 2012, plaintiff was directed to provide an accounting for the $50,000 withdrawal of funds.

By Order (Devine, J.) entered March 5, 2013, the Court reserved decision on defendant's request for an order directing plaintiff to replenish the sum of $50,000 into this account.

At trial, plaintiff acknowledged he withdrew the funds, explaining "there was a proper reason given at that time and I don't remember why or what" (TT 195-197). This unimpressive response fails to account for the funds, as previously directed by the Court. Accordingly, the Court awards $25,000 to defendant, representing her half share of the funds plaintiff withdrew.

As for the balance of the funds utilized by defendant, the Court credits her testimony that the funds were expended for necessary family expenses as well as legal/expert fees in this case (TT 325; 347). Given the disparity of earning capacity between the parties, the Court declines to award any credit to plaintiff for the use of these funds. Otherwise, each party is awarded 50% of the account as of September 24, 2013, to wit: $152,041.59 each, with plaintiff's share to be applied [*8]against the award granted to defendant in this Decision and Order.

h. Separate Property. Defendant testified that she is the beneficiary of an account established by her parents when she was a child (TT 324; 329). She confirmed that no contributions were made into the account during the marriage (TT 324). This account, which is identified on defendant's Statement of Net Worth (SNW) as an LPL Financial account, with a value of $867,635.48 as of September 23, 2013, is defendant's separate property (defendant's Exhibit "FF"). Notably, defendant's SNW also identifies two other accounts as her separate property; a Citibank Mutual Funds account, valued at $25,380.54 as of September 24, 2013 and a Merrill Lynch CMA Edge Account valued at $10,691.37 as of September 24, 2013. There being no evidence to the contrary, the Court finds that these accounts are defendant's separate property.

There are several other accounts listed in defendant's SNW that need to be addressed. Since defendant has sole legal custody of the children, she will retain the two custodial accounts listed. The Court accepts defendant's characterization of her Bank of America 401K account as her separate property (Defendant's Exhibit "FF"). For purposes of equitable distribution, the Court awards the United Bank of India Account ($3,000) to plaintiff, and the First Niagara Bank account ($7,721.17) to defendant. Defendant's Citibank and First Niagara checking accounts shall remain her property, as well as her Citibank IRA ($16,107.25).

i. Investment Accounts. The parties stipulated that an E-Trade account had a value of $912,529 as of the date of commencement - November 4, 2011 (TT 115); and an Interactive Brokers account had a value of $140,638.20 as of October 31, 2011 (TT 116-117). Defendant seeks an award of half the value of these accounts valued as of the commencement, i.e. $526,583.50. While each account is titled in plaintiff's name, there is no convincing proof that the funds constitute his separate property. Importantly, for tax purposes, plaintiff reported the capital gains loss from the accounts on the parties joint income tax return for 2009; and his individual income tax returns for 2010 and 2011 (see plaintiff's Exhibits "3", "4" and "5"). With plaintiff being bound by his tax returns (see Mahoney-Buntzman v. Buntzman, 12 NY3d 415, 422), these filings refute his contention that he was investing his mother's money (TT 121).

Notably, the only viable evidence before the Court as to the value of these accounts are the stipulated commencement date values. While "active" assets such as a business enterprise are generally valued as of the date of commencement, "passive" assets such as investment accounts that may fluctuate in value due to market forces may be valued as of the date of trial (see Grunfeld v. Grunfeld, 94 [*9]NY2d 696, 707; Bean v. Bean, 51 AD3d 718; Fox v. Fox, 309 AD2d 1056, 1058). The difficulty here, as discussed below, is that plaintiff has a history of actively trading in these accounts himself. In his January, 2012 Statement of Net Worth (SNW), plaintiff represents that the value of the E-Trade account as of January 10, 2012 was $791,176 (see plaintiff's Exhibit "6"). There is no supporting documentation in evidence, even though plaintiff controls the accounts, and the Court finds it difficult to credit much of plaintiff's testimony. Even accepting the value, the problem remains whether the depreciation in value was a consequence of market forces or plaintiff's continued trading. Correspondingly, plaintiff has valued the Interactive Broker's account at $760,000 as of January 11, 2012 (Exhibit "6"). If this valuation were accurate, it would represent an increase in the stipulated value of more than $620,000 over a three month period, which is highly unlikely and reflects the inaccuracy of the values stated in plaintiff's SNW.

Since the record indicates these are marital accounts, given the circumstances presented, the Court will value the accounts as of the date of commencement. As such the Court awards $526,583.50 to defendant for her half share of the accounts with plaintiff's equal share to be applied against the award granted to defendant in this Decision and Order.

WASTEFUL DISSIPATION OF MARITAL ASSETS. Plaintiff testified that in addition to his diamond business, he was actively engaged in the business of trading stocks (TT 120-121). He has a business degree from Boston University, but explained he was "self-taught" in the world of investments (TT 121-123). The record reveals dramatic losses in both the E-Trade and Interactive Broker accounts after the economic crash of 2008 (TT 124). Throughout the period between 2009-2011, the record also confirms that plaintiff was actively engaged in trading stocks (TT 124-138; Exhibits "C", "D", "E" through "I").

The results of plaintiff's personal investment strategy of active trading proved to be dismal. His 2009 income tax return reports a short-term capital loss of $355,902, with a long term capital loss carryover of $3,157,592 (Exhibit "5"). In 2010, the results were even worse. Plaintiff reported a short-term capital loss of $11,710,612; and a long term capital loss of $920,861 (Exhibit "4"). In 2011, plaintiff reported a short-term capital loss of $3,099,733; and a long-term capital loss of $212,432 (Exhibit "5"). Cumulatively, during this three year period 2009-2011, plaintiff reported a total short term capital loss of $15,166,247; and a total [*10]long term loss of $1,133,293 — for a total reported loss of $16,299,540.^[FN2] Confronted with this loss in his deposition, plaintiff responded:

"But theres guys who made $150 million. If you don's wager,

you're not going to make. That's a risk I wanted to make for my position

for my family. There is nothing wrong. If you come to this country you're

allowed to trade. It's not illegal to trade". (TT 128).

He elaborated by explaining "the higher the risk you take, the greater return you're going to get... I know what I am doing. It's my personal choice to trade in that strategy" (TT 129). Significantly, defendant did not learn of the stock losses until April or May of 2010 (TT 369-370). Shortly thereafter, she left the household.

It is difficult to discern how much of this loss was unavoidable due to the 2008 stock market crash and how much flowed from plaintiff's own ill advised investment strategies. Defendant acknowledges as much, confirming that her wasteful dissipation claim does not extend to losses incurred in 2008 (TT 476). As note above, the parties 2009 tax return reported a long term capital loss carryover of more than $3.1 million in 2009. There is, unfortunately, no expert testimony to explain the extraordinary capital loss exceeding $12 million in 2010. Even accepting that the market downturn lasted beyond 2008, the records from the E-Trade and Interactive Broker accounts reveal significant losses during a period of active trading throughout 2010-2011.

As of March 31, 2010, the E-Trade account had a balance of $2,977,977 (Exhibit "E"). One month later, the account balance was $2,435,972 (Id). Notably, the account value had been steadily increasing since November 2009 until the March 2010 loss of more than $500,000. By April 30, 2011, the account balance had fallen to $2,010,121 (Exhibit "G"). On July 31, 2011, the account balance was $1,869,388, and fell to $1,384,858 by August 31, 2011 (Exhibit "H").

By September 30, 2011, the balance had fallen to $837,231 (Exhibit "I").

Similarly, plaintiff's Interactive Broker account reported a value of $1,002,176 as of January 31, 2011 (Exhibit "C"). By July 29, 2011, the account balance had fallen to $429,470 (Exhibit "D"). Three months later this action was commenced.

Through his own continued trading, plaintiff manifestly mismanaged these accounts, notwithstanding the downturn of the economy in 2008. A spouse's wasteful dissipation of marital assets is relevant to both the equitable distribution [*11]of marital property and maintenance (DRL §236[B][5][d][12] [6][a][17] see Owens v. Owens, 107 AD3d 1171; Burnett v. Burnett, 101 AD3d 1417; Brzuszkiewicz v. Brzuszkiewicz, 28 AD3d 860). Certainly by 2011, economic downturn or not, plaintiff had no business managing these investments himself. As reflected above, in 2011 alone, the E-Trade account fell $1,172,890 in value by September 30, 2011, and the Interactive Broker account lost $572,706 by July 29, 2011. Utilizing the stipulated values of each account, the 2011 E-Trade loss was $1,097,592 (i.e. $2,010,121 - $912,529) and the 2011 Interactive Broker's loss was $861,538 (i.e. $1,002,176 - $140,638).

On balance, the Court is charging plaintiff with willful dissipation of funds based on a 2011 loss of $1,959,130. As a result, defendant is awarded the sum of $979,565 representing her half share of the funds lost.

To summarize, the Court has made the following direct monetary awards payable by plaintiff to defendant:

Award to DefendantAsset

1.$2,520.000.00Clear Light

2.1,250,000.00Condominium

3.11,200.00Miscellaneous Personalty

4.375,000.00Raji Ravi Paintings

5.50,000.00Furnishings

6.50,000.00Automobile

7.152,041.50Citibank Account [*12]

25,000.00Citibank Account

8.526,583.50E-Trade and Interactive

Broker Accounts

9.979,565.00Wasteful Dissipation

$5,939,390.00Total

As indicated above, plaintiff's equal shares of the Citibank, E-Trade and Interactive Broker accounts are to be directly applied against the amounts payable to defendant, yielding a payment credit of $678,625.09 — assuming the fund balances remained intact. With this paid credit, the balance due defendant is $5,235,765.00. In her post-trial brief, defendant requests that plaintiff pay her share of the business in a lump sum payment of $2,520,000.00, due to plaintiff's demonstrated ability to access large sums of money and a history of disregarding court orders. Defendant's point is well taken, albeit a direct payment of $2.5 million goes too far. On balance, the Court directs plaintiff to pay to defendant $2,000,000.00 of the award within one (1) year of the date this Decision and Order is served with notice of entry. In the event plaintiff fails to make this initial $2 million dollar payment as directed, the Court, upon application, will appoint a receiver to sell the condominium, with all net proceeds payable to plaintiff (see CPLR 5106; Westfall v. Westfall, 194 AD2d 960; Wagenmann v. Wagenmann, 96 AD2d 534). The expenses of the receiver would be charged against plaintiff. Thereafter, the balance due defendant shall be payable in equal monthly installments over a twenty year period at five percent interest per annum. The first monthly payment will be due six months after the initial $2 million payment is made; or six months after the receiver's distribution of the condominium proceeds of sale to defendant. In the meantime, plaintiff is prohibited from either selling the condominium, or encumbering the condominium with any liens, unless on 30 days prior written notice to defendant coupled with a written commitment to utilize any funds procured to pay the initial $2 million dollar payment. Assuming, for illustration purposes, that plaintiff makes the initial $2 million dollar payment as directed, then the balance of $3,235,765.00, payable over a 20 year term at 5% yields a monthly payment, including principal and interest of $21,354.62.

MAINTENANCE. Defendant seeks an award of non-durational [*13]maintenance in the amount of "$13,075 per month for the length of the marriage; and thereafter, to pay $10,000 per month for her lifetime" (Defendant's post-trial brief at p. 15).

To begin, defendant's reliance on the temporary maintenance guidelines in computing a permanent maintenance award is misplaced. In rendering a permanent award, among other factors, the Court must consider the actual equitable distribution of the marital property (DRL §236[B][6][a][1], [15]). This requirement alone renders the temporary guidelines inapplicable to a permanent award.

Next, the Court has already awarded defendant a 30% equitable share of Clear Light, Inc. based on a stipulated value of the inventory of $8.4 million. As explained by the Court of Appeals in Keane v. Keane, (8 NY3d 115), the Court previously determined in Grunfeld v. Grunfeld (94 NY2d 696) and McSparron v. McSparron (87 NY2D 275) "that in divorce actions a court should not twice count the income associated with a professional license, an intangible asset, when making distributive and maintenance awards" (Id at 119). In Keane, the Court determined that this principle did not apply to the distribution of a tangible, income-producing asset. The asset in Keane was a rental parcel, passively producing monthly income that was equally distributed between the parties. In so holding, the Court noted that "[d]ouble counting may occur when marital property includes intangible assets such as professional licenses or goodwill, or the value of a service business" (emphasis added [Id at 122]).

Several followup cases have determined that the prohibition against double counting does not apply to the distribution of a business. In Weintraub v. Weintraub, 79 AD3d 856), the Second Department determined that the "prohibition against double counting did not apply to the distribution of the parties' plumbing and fire sprinkler contracting company, which is a tangible income producing asset: (Id at 857). Consistently, in Shah v. Shah (100 AD3d 734), the Second Department held that the prohibition did not apply to the distribution of a business known as Hi-Tech Training (USA) Inc., which the Court characterized as a tangible, income producing asset (Id at 735).

Plaintiff is the sole owner of a closely held corporate entity engaged in the wholesale distribution of diamonds. There is no dispute that he personally is fully engaged in all aspects of this business, from the selection of inventory to the solicitation of customers and ultimate sale of the product. As such, this case falls within the category indentified in Keane, as underscored above, involving "the value of a service business" (Keane at 122). It follows that the prohibition against [*14]double counting does apply. Thus, in setting the level of maintenance the Court will utilize 70% of plaintiff's business income.

For maintenance purposes, defendant seeks to impute annual income to plaintiff of at least $553,473 based upon the September 16, 2013 income analysis prepared by BST Valuation & Litigation Advisors, LLC (BST), received into evidence on consent (Court Exhibit #2; TT 7; 169; 172-173).

By Order (Devine, J.) entered June 7, 2013, the Court appointed BST to perform an income analysis of plaintiff's income. By definition, "income" is defined to include a party's gross (total) income as reported in the most recent federal income tax return (see DRL §240 [1-b][b][5][i]). Here, the most recent tax return available is plaintiff's 2011 return, in which he reported gross income of $111,680 (plaintiff's Exhibit "3"). Since there is no dispute in the record that the parties personal expenses were routinely paid through the business, it was necessary to analyze plaintiff's true available income.

Based on a document review covering the period January 1, 2011 through June 30, 2013, as well as conversations with plaintiff, BST determined plaintiff's "annual total" was $466,155 for 2011; $588,848 for 2012; and $259,049 for 2013 through June 30, 2013 (Court Exhibit #2 "Summary of Findings"). These numbers average out to about $525,000 per year. From the Court's perspective, there is nothing in the trial testimony that undermines BST's valuation. Neither party called Mr. Raymond, who signed the income analysis, as a witness. Although Mr. Raymond wrote to the Court that he would not do any further work, the Court expressly informed the parties they were not precluded from calling him as a witness (TT 172-175). Plaintiff's contention that funds taken from the business were loans, not income, as evidenced by his redepositing certain pay checks back into the business account, is simply not convincing (TT 138-139; 218-220). It is notable that he failed to produce any actual loan documentation (TT 278-279). As such, the categories of income and benefits outlined by BST in the "Summary of Findings" were properly included in the income calculation.

Accordingly, the Court imputes annual income of $525,000 to plaintiff, from which 70% or $367,500 will be utilized for calculating maintenance in this case.

The Court looks to the factors set forth in DRL §236[B][6][a] in determining whether to award maintenance and, if so, the amount and duration of such an award. Although not clear from the submissions, it appears plaintiff has been paying "support" in the amount of $5,000 a month, beginning in 2011 (TT 279-280). [*15]

Giving due recognition to the respective financial prospects of each party, "the primary purpose of maintenace is to encourage self-sufficiency by the recipient" (Quinn v. Quinn, 61 AD3d 1067, 1071; see Armstrong v. Armstrong, 72 AD3d 1409). "Notably, maintenance is appropriate where, among other things, the marriage is of long duration and the recipient spouse has been out of the work force for a number of years and has sacrificed her or his own career development or has made substantial noneconomic contributions to the household or to the career of the payor" (Musacchio v. Musacchio, ___ AD3d ___ [6/27/13, 3d Dept.] (internal quotations and citations omitted). In such a circumstance, as here, plaintiff's "ability to be self-supporting must be considered with the parties' predivorce standard of living" (see Owens v. Owens, supra, 107 AD3d 1171; Ndulo v. Ndulo, 66 AD3d 1263, 1265).

Without question, the parties enjoyed an affluent lifestyle during the course of the marriage. Plaintiff pointed out several times during the trial that the parties lived debt free.^[FN3] Their high standard of living is vividly illustrated by the purchase of the three Raja Ravi Varma paintings for $750,000 and the fact that they resided in a Manhattan condominium valued at $2.5 million, with no mortgage. Based on their financial success, defendant voluntarily left her position with Merrill Lynch in 2000 to pursue her avocation for not-for-profit work without salary and with plaintiff's approval (TT 298-300; 315)

Defendant is 38 years old, in good health and has a master's degree in business. She was gainfully employed with Merrill Lynch at the time of the marriage. From 2000 to 2008, she was actively involved with her own not-for-profit venture, as well as with Clear Light as discussed above. From her testimony, she is clearly articulate, capable and intelligent. Moreover, by mutual agreement between the parties, their lifestyle permitted defendant to limit her work outside of the home to become the primary caretaker for the two children. She has been living outside the marital residence since May, 2010. She currently resides in her parent's home in Albany County and drives a car owned by her parents. She is sole custodian of her young children. Defendant testified that she has yet to put her MBA to work, or start a job search (TT 442). Her plan is to return to a non-profit management role that she anticipates would pay around $45,000 to $50,000 annually (TT 443).

Plaintiff, who is 39 years old, is retaining his business and has demonstrated [*16]he is highly capable of continued success, with earnings exceeding $500,000 annually.

As discussed above, it is significant that defendant is receiving a distribution of marital property, with a total monetary award $5,939,390 (seeKeil v. Keil, 85 AD3d 1233, 1237-1238; Armstrong v. Armstrong, supra, 72 AD3d at 1415-1416). In light of this award, together with the child support and defendant's separate property, it cannot be said that defendant's lifestyle will be diminished to the point where she will be forced to return to work to support herself. It is, however, diminished from the lavish and unencumbered lifestyle she shared with plaintiff and that plaintiff will continue to enjoy. She wants to return to work but has been out of the workforce for six years.

Upon issuance of a judgment of divorce, defendant will no longer be insured under plaintiff's health insurance plan provided through his business and necessarily will have to procure her own coverage.

The receipt of maintenance will be taxable income to defendant, but as the sole custodian of the two children she is entitled to claim both tax exemptions.

It is also significant that defendant is the beneficiary of a trust with a principal balance of $867,635, and is retaining her separate property accounts valued in excess of $35,000 (see Owens v. Owens, 107 AD3d, supra, at 1174).

This Court is mindful that the parties pre-separation standard of living should be considered in determining the amount and duration of maintenance, but does not per se entitle a party to an award of lifetime maintenance (Hartog v. Hartog, 85 NY2d 36; Redgrave v. Redgrave, 13 AD3d 1015, 1019; Chalif v. Chalif, 298 AD2d 348).

Giving due regard to the circumstances of the parties, and the reasonable needs of the recipient spouse, the Court hereby awards to defendant maintenance in the amount of $5,000 a month for a period of six years. The award is effective as of November 28, 2011, the date of defendant's "Verified Answer and Counterclaims" which included a demand for an award of maintenance (see DRL §236[B][6][a] see Burns v. Burns, 84 NY2d 369). The award is subject to an offset for any temporary maintenance paid to date, with the arrearage payable at a rate of $2,500 per month ^[FN4] (see White v. White, 204 AD825, 828-829, lv den. 84 [*17]NY2d 977).

CHILD SUPPORT. Under the Child Support Standards Act, plaintiff's child support obligation is calculated by determining the parties' combined parental income, then multiplying the combined parental income up to $141,000 by the appropriate child support percentage (25% for two children) and prorating each party's share in proportion to their share of the combined parental income (DRL §240[1-b][c]). Here, as stated, plaintiff is currently the sole source of income and his income exceeds the income cap of $141,000. As stated above, the Court has defined defendant's annual income at $525,000 for purposes of child support. As such, the Court is required to consider the additional factors set forth in DRL §240[1-b][f] to determine what amount, if any, of the excess income will be included in the child support award (see Holterman v. Holterman, supra, 3 NY3d 1, 10-15; Matter of Cassano v. Cassano, 85 NY2d 649, 654-655; Sadaghiani v. Sadaghiani, 97 AD3d 1013; Quinn v. Quinn, 61 AD3d supra at 1072; Hammack v. Hammack, 20 AD3d 700, 701-702, app dsmd, 6 NY3d 807). The Court may deviate from a strict application of the statutory percentages to the excess income where the resulting award would be "unjust or inappropriate" (Id).

In her post-trial brief, defendant has demanded child support in the amount of $11,530 per month (presumably by applying the statutory percentage to plaintiff's full imputed income, which she calculates as $553,473).

At present, the children are 5 and 3 years old. Both children are in a private school/pre-school program, which defendant testified cost about $24,000 a year (TT 328). She estimates their extracurricular activities annually cost about $3,000 per child (TT 328-329). They are, of course, very young and it is reasonable to predict their activities will increase as they grow older. While both parents received a private school education, defendant indicated she is looking to purchase a home in a neighborhood with a nearby "public school system that I'm familiar with" (TT 352). She also expressed a wish to continue the children in the current private school. Plaintiff has raised no objection to the children attending private school.

Giving due regard to the circumstances of the parties, and activities of the children, the Court finds that a reduced percentage of .08% to the excess income would be appropriate (See Quinn v. Quinn, 61AD3d, supra at 1072). This results in an annual child support award of $52,947.00, calculated as follows:

Plaintiff's Income (Imputed)$525,000.00

Less: FICA[ 14,661.90] [*18]

Maintenance[ 60,000.00]

Child Support Income$450,338.00

$141,000 x .25 =28,200.00

$309,338 x .08 =24,747.00

Total Child Support (Annual)$ 52,947.00

As such child support is payable at a weekly rate of $1,018.21. Payments must be made through the Albany County Child Support Collection Unit. In addition, plaintiff shall remain obligated to pay the private school tuition for both children and necessary child care expenses (DRL §240[1-b][c][4]). To be noted is that the parties have not addressed the payment of post-secondary private education (DRL §240 [1-b][c][7]). Plaintiff shall also continue to provide health insurance coverage for the children and pay all uninsured medical, dental and orthodontic. Upon the completion of the maintenance payments, the child support shall increase to $1,110.00 per week. As with the maintenance award, this award is effective as of November 28, 2011 (see DRL §236[B][7][a]). The arrearage, if any, must be paid at a rate of $2,500 per month. This award must be recalculated when the parties' daughter turns 21.

LIFE INSURANCE. To secure his payment of the distributive award to defendant, as well as his maintenance and child support obligations, plaintiff is directed to obtain a declining term life insurance policy or policies in the amount of $6,000,000, naming defendant as the beneficiary in order to secure the distributive award and support obligations provided for herein (see Mairs v. Mairs, 61 AD3d 1204, 1211 [2009] Bean v. Bean, 53 AD3d 718, 725). This policy must be procured within ninety (90) days of the date this Decision and Order is served with notice of entry. Plaintiff is obligated to provide defendant a complete copy of the policy or policies, within said 90 day period; and a copy of each annual renewal within thirty (30) days of each renewal.

ATTORNEYS FEES/EXPENSES. As indicated, at trial the Court reserved [*19]on defendant's application for an award of attorneys fees/expenses. In her post-trial brief, defendant seeks an award for all fees/expenses incurred. She points to plaintiff's trial testimony that he had spent $140,000 on attorney fees, utilizing the business funds (TT 139, 270).

During the course of this litigation, defendant has had access to the Citibank account, which had a date of commencement balance of $414,253; and a balance of $304,083 at the commencement of the trial. Plaintiff withdrew $50,000 during this period. The balance of $60,170 was used by defendant for family expenses and attorney fees. At this juncture, it is not clear how much of this fund was spent on attorney fees (compare Quinn v. Quinn, 61 AD3d, supra, at 1072-1073). Defendant did testify the fund was used to defray the cost of private school for the children.

Defendant accurately asserts that plaintiff's repeated disregard of Court Orders throughout the history of this case has generated extensive legal expenses. There have already been a variety of orders awarding attorney fees to defendant due to plaintiff's persistent disregard of Court orders.

Given these circumstances, with due recognition that defendant has received a sizable distributive award, as well as viable maintenance and child support awards, and while reserving on whether any award will be made, the Court will entertain an application for attorney fees from defendant, provided such application is filed within thirty (30) days of the date this Decision and Order is issued (see Armstrong v. Armstrong, supra, 72 AD3d 1409, 1416).

FAMILY COURT PETITIONS. By Order of Consolidation (Walsh, J.) entered October 24, 2012, the Family Offense Proceeding, bearing File Nol 34910 and Docket Nos. 0-07356-11 and 0-07345-11/12A was removed and consolidated with this action. The issue was raised at the commencement of the trial, with defendant reserving on whether she would proceed with proof on her petitions (TT 8-11). There being no proof submitted, the petitions are dismissed.

This Memorandum constitutes the Decision and Order/Judgment of the Court. The original Decision and Order/Judgment is being returned to the attorneys for defendant. The original papers are being sent to the Albany County Clerk. The signing of this Decision and Order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the provision of that rule regarding filing, entry, or notice of entry.

SO ORDERED!

ENTER. [*20]

Dated: Albany, New York

March, 2014

_________________________________________

Michael C. Lynch

Justice of the Supreme Court

Papers Considered:

1.Trial Transcript and Exhibits;

2.Plaintiff's February 14, 2014 letter submission. By letter order dated March 7,

2014, the Court informed the parties that Exhibits "1" - "4" attached to plaintiff's

February 14, 2014 letter would not be considered since none of these documents

were received in evidence at trial; and

3.Defendant's Post-Trial Brief submitted March 10, 2014.