The parties were married on June 7, 2008. Plaintiff commenced this action on October 27, 2014 by summon and verified complaint. The parties engaged in extensive litigation during the intervening years: more than twenty-five (25) motion sequences have been filed in this action. This Court has issued numerous written decisions herein.

On February 5, 2018, this Court issued a 74-page written decision deciding motion sequence No.25 in which the Court found that the plaintiff installed spyware on the defendant's [*2]iPhone which he used to intercept her confidential communications, including those between her and her attorneys in this action and her and her treating psychiatrist and subsequently engaged in spoliation of evidence related thereto.^[FN1] In a written decision dated February 5, 2018, the Court inter alia struck plaintiff's pleading seeking spousal support and equitable distribution.

At the time motion sequence #25 was decided, the trial on the issues of custody and parenting time had concluded and the decision was sub judice. Thereafter, the Court issued a 44-page (not published) written decision on custody and parenting time dated June 22, 2018 in which the plaintiff-father was awarded legal and residential custody of the parties' two (2) minor twin children, a son, C.C., and a daughter, M.C., who were born in March 2009 (Judicial Notice #F5). The allegations and findings of the Court related to the custody and parenting time dispute are fully detailed in that written decision. At this time, all of the defendant's parenting time with the children is supervised pursuant to a consent stipulation between the parties.

The trial on the financial issues between the parties was held on June 27, 2018; June 28, 2018; July 20, 2018; July 30, 2018; August 3, 2018; November 7, 2018; November 8, 2018; and November 13, 2018. The plaintiff and the defendant testified on their own behalf and each called witnesses, including real estate appraisers. At the conclusion of trial, counsel for the parties requested that written summations be due on January 4, 2019 (Tr. 11/13/18, p. 45); however, on consent, counsel for the parties requested that the summation date be adjourned to April 8, 2019 by written stipulation.

The plaintiff-husband is 55 years of age. He graduated undergraduate studies from Yale University summa cum laude and he attended a Ph.D. program at the University of California Berkley in Comparative Literature but did not complete the program (Defendant's exhibit F-MMM in evidence on consent). He was a Fulbright scholar (Tr. 11/08/18, p. 55). He has worked in the investor relations field for "about 17 years..." (Tr. 7/30/18, p. 75) and he was president of an international investor relations company until shortly before he commenced this litigation. He worked as a freelance consultant throughout the duration of this litigation.He testified on cross-examination that he is the only party responsible for reporting his gross receipts and sales on behalf of his freelance company.

The defendant-wife is 54 years of age. She earned a bachelors of arts degree from Connecticut College and a Masters degree in Education from Columbia University. Defendant testified that she has worked as a copy editor since 2004. She testified that during the litigation she was only employed "very sporadically" as a "freelance copy editor at a number of different magazines" and that she only worked "[m]aybe three weeks total" in 2017. She testified that she was not currently employed at the time of trial.

The parties' so-ordered consent pendente lite stipulation dated January 29, 2015 provided that defendant would pay plaintiff $5,500 monthly in child support (paragraph 1; plaintiff's [*3]exhibit F-27C).^[FN2]

Plaintiff offered into evidence as plaintiff's exhibit F-27 on consent an accounting of alleged child support add-on arrears pursuant to the parties' October 9, 2015 so-ordered stipulation by which defendant was 85% financially responsible for the children's add-on expenses from (paragraph 4; plaintiff's exhibit F-27). Plaintiff's accounting requests reimbursement in the sum of $16,618.93 ($19,551.68 x .85 = $16,618.93). Defendant did not dispute the alleged add-on expenses at trial. As such, plaintiff is granted the arrears. Defendant shall pay $16,618.93 to plaintiff as and for child support add-on arrears within sixty (60) days of service of the judgment of divorce with notice of entry. If defendant fails to do so, plaintiff's counsel may enter a judgment, together with statutory costs and interest from the date of default, of any unpaid sum with the Office of the County Clerk upon ten (10) days notice to defendant by certified and regular mail of an affirmation of non-compliance with no need to seek further Court intervention.

Plaintiff's 2015 income tax return (plaintiff's exhibit F-18 in evidence) lists total income of $243,643: $99,000, maintenance; and $144,643, net business income. On cross-examination, plaintiff conceded that he took approximately $65,000 in Schedule C deductions from his gross receipts of $207,133 in gross receipts (Tr. 8/03/18, p. 28-29).^[FN3] He testified that he had an overseas client in 2015 but he denied that that client paid him more than $200,000 in 2015 (Tr. 8/03/18, p. 31).

Plaintiff conceded on cross-examination that certain deducted expenses listed in his income tax returns included charges for the marital residence: including internet ($1,845) and telephone expenses ($2,466) in 2015 (Tr. 8/03/18, p. 32). He testified that he uses the same tax accountant as defendant.

Plaintiff's 2016 income tax return (plaintiff's exhibit F-17 in evidence) lists total income of $232,443: $99,000, maintenance; and $133,443, net business income. On cross-examination, plaintiff conceded that he took $35,299 in Schedule C deductions from his gross receipts of $168,742 (Tr. 8/03/18, p. 26-27).

Plaintiff testified that his "largest source of income" in 2017 was from defendant's pendente lite maintenance payments and "I also had the fees from my consulting clients." (Tr. 7/30/18, p. 76). Plaintiff's 2017 income tax return (Plaintiff's exhibit F-16) lists income of [*4]$99,000 as maintenance; $70,059 as business income; and $220,209 as IRA distributions, for a combined total of $389,268. Plaintiff reported $15,743 in depreciation from his business in 2017 (Tr. 7/30/18, p. 113). He also reported $5,895 in other expenses including cable and internet access ($,1639) and telephone ($1,769). Plaintiff conceded on cross-examination that "a portion" of these expenses are for personal use (Tr. 7/30/18, p. 119).

Plaintiff testified on cross-examination that in 2017 he made $792 monthly in charitable contributions despite having mounting debts and withdrawing more than $220,000 from his IRA because he felt he had a "commitment to certain organizations..." (Tr. 7/30/18, p. 121) while he testified on cross-examination that he elected not to sell personal property such as a luxury Rolex watch.

Plaintiff testified on cross-examination that, as of November 2018, he had earned income of approximately $150,000 gross in 1099s from freelance work for 2018 (Tr. 11/08/18, pp. 52-54). Plaintiff conceded on cross-examination that his mother gave him $15,000 in February 2018 that was not disclosed on his affidavit of net worth because that took place after he signed his affidavit of net worth (Tr. 11/08/18, p. 63).

Plaintiff lists his monthly expenses as follows in his affidavit of net worth, dated May 16, 2018^[FN4] : mortgage, $2,634^[FN5] ; gas, $82.00; electric, $419.00; telephone (landline/cable/internet), $195.00; mobile telephone, $182.00^[FN6] ; alarm, $56.00; water, $70.00; groceries, $1,067.00^[FN7] ; dining out, $402.00; dining out with kids, $445.00; treats for kids, $97.00; coffee shops, $85.00; clothing for himself, $169.00; clothing for children, $225.00; dry cleaning, $79.00; unreimbursed medical, $35.00; unreimbursed dental, $30.00; unreimbursed optical, $34.00; unreimbursed pharmaceutical, $50.00; unreimbursed surgical, nursing, hospital, $10.00; psychiatrist for himself, $235.00; children's psychiatrist, $250.00; household repairs, $650.00; gardening, $35.00; extermination, $27.00; other household expenses, $23.00; housekeeper, $360.00; babysitter, $1,550.00; automotive gas, $13.00; parking/tolls, $11.00; rental cars with children, [*5]$204.00^[FN8] ; rental car (self), $15.00; school supplies for children, $64.00; children's extracurricular activities, $444.00; vacations, $1,475.00; movies, $130.00; musical, $45.00; summer camp, $240.00; birthday parties for children, $95.00; museums for children, $40.00; art supplies for children, $29.00; federal income tax, $8,223.83; state income tax, $2,080.66; NYC local tax, $1,164.83; social security/medicare tax, $824.91; barber, $20.00; toiletries, $30.00; books/newspapers, $97.00; gifts to others, $150.00; charitable contributions, $792.00; religious organization dues, $33.00; commutation expenses, $91.00; children's allowances, $40.00; one-time penalty to liquidate IRA, $1,835.08; bank fees, $48.00; cut flowers, $10.00: TOTAL monthly expenses, $27,559.31.

Plaintiff lists total assets of $12,902.66 as follows: checking, $12,463.66; savings, $0; marital residence, $2,325,000^[FN9] ; retirement accounts totaling, $0^[FN10] ; jewelry, art, etc, "unknown"; investment accounts, $439.00.

Plaintiff lists total liabilities of $950,740.08 as follows: VW Finance, $12,335.03 (penalty for early return of leased automobile); Chase xx30 credit card, $13,891.11; Chase xx04 credit card, $20,009.99; Citi Mastercard xx60 credit card, $589.97; mortgage on marital residence, $560,225.91; note payable to L. K., $20,000; note payable to C.C., $45,000; federal taxes, $83,071.45; state taxes, $1,250.00; computer forensic experts T & M, $122,784.00; counsel fees, Carolyn Byrne, Esq, $83,917.65.

Defendant's lists the following monthly expenses in her May 31, 2018 affidavit of net worth (Defendant's exhibit F-QQ in evidence): mortgage, $2,532.89; real estate taxes, $1,244; gas, $194; electrical, $302; telephone, $132.99; water, unknown; home security, $92.30; internet and cable, $223; groceries, $865; school lunches (daughter), $196; dining out, $1,795; clothing (self), $500; clothing (children), $400; laundry (at home), $10; dry cleaning, $25; homeowner's insurance, $842.50; family health insurance, $3,014.90; unreimbursed medical, $60; psychiatrist, $1,500.00; cleaning supplies, $65; babysitter, $2,900.00; housekeeper, $800; school bus (daughter), $244.43; school supplies, $465; after-school (son), $1,125; after-school (daughter), $375; summer camps, $465.41 (2018 summer)^[FN11] ; Spring Break camp (2018 for son), $65^[FN12] ; [*6]vacations, $2,543.60; movies, $30; theater, ballet, museums, $100; DVDs, $25; health club, $720; books, $50; birthday gifts for others, $100; Netflix, $10.99; beauty parlor, $500; cosmetics, $150; books/newspapers, $100; gifts, $75; charitable contributions, $165; religious dues, $56; commutation/transportation, $272; Soberlink, $148^[FN13] ; recovery coach, $700; son's therapist, $1,250; daughter's therapist, $800. Despite the clear instructions of the affidavit of net worth, defendant did not list a total monthly expense. Rather, defendant listed "varies." The total calculation, appears to be by the Court's calculation: $28,230.01.^[FN14]

Defendant lists the following assets: Chase checking xx65, $39,171.61; Chase xx01, $181.28; stocks, $8,870,701.18; marital residence, unknown; REDACTED ["Grandchildren Trust" home], $6,350,000; plaintiff's IRA, unknown; defendant's Chase IRA, $91,196.20; defendant's Chase Roth IRA, $23,789.79; jewelry, unknown; HSBC UTMA — C.C., $108,836.60; HSBC UTMA — M.C., $123,858.99: TOTAL ASSETS: $15,607,735.60.^[FN15]

Defendant lists the following liabilities: American Express credit card, $24,997.33; mortgage on marital residence, $553,878.71; UBS securities backed line of credit, $2,212,675.65: TOTAL LIABILITIES, $2,791,551,69.

Defendant testified that her primary source of income is from dividends ($25,000/monthly stipend) from stock holdings and that "a very small amount comes from freelance copy editing work" (Tr. 7/20/18, p. 5). She testified that she does not receive any trust income.

Defendant's 2015 income tax return reports $537,113 in gross income, of which $352,308 was dividend income, with —$4,532 in business loss and $189,189 in capital gains. Adjusted gross income was $438,113 after deducting $99,000 for alimony paid.

Defendant's 2016 income tax return reports $329,615 in gross income, of which $330,104 was divided income, with —$832 in business loss. Adjusted gross income was $230,615 after deducting $99,000 for alimony paid.

The most recent income tax return offered by defendant into evidence was her 2017 income tax return reports $382,542 in gross income all of which was from dividends, with $4,970 in business loss. Adjusted gross income was $283,542 after deducting $99,000 for alimony paid.

Defendant testified that from October 2017 to the present she received $4,000 directly from her mother; is permitted by her mother to keep the reimbursement from the NYCDOE for 90% of the son's private school tuition ($66,000 x .90 = $59,400) and also receives $14,000 annually as a tax free gift from her mother each year. These sums do not appear to be included in defendant's income tax returns.

Defendant testified that she opened a line of credit secured by her UBS stock portfolio during this litigation in order to pay for litigation expenses. She testified that the total line of credit available to her "might be 6 million" (Tr. 7/20/18, pp. 36-37). She testified that her litigation costs were paid: "[f]or the years 2015 and 2016, the source was my mother, and from 2017 to present, the source is me." Defendant testified that there are "a number of promissory notes, I believe two, maybe three" related to the money her mother paid directly toward litigation costs on her behalf. No documentary evidence was offered into evidence related to these alleged promissory notes. She testified that on December 28, 2017, she withdrew $1,394,285.39 from her line of credit and transferred it to her mother because "[t]hat was the exact amount that my mother had paid since the beginning of 2017 for litigation related expenses" (Tr. 11/13/18, p. 36).

Defendant conceded on cross-examination that she did not seek court permission to make this withdrawal or transfer from the line of credit (Tr. 11/13/18, p. 37); however, plaintiff did not allege that defendant's stock portfolio were not entirely her separate property gifted to her by her parents when she was a child.

Copies of checks and transfers made from defendant's counsel's IOLA account on defendant's behalf was entered into evidence as plaintiff's F34 on consent. Account statements from November 2017 through November 2018 for defendant's UBS credit line account were entered into evidence as plaintiff's F35 on consent.

Defendant conceded on cross-examination that she also paid non-litigation expenses from her attorney's escrow account using funds from this line of credit (Tr. 11/13/18, p. 33-35) including payments to the mortgage on the marital residence, to pay her American Express bill and other personal expenses (Tr. 11/13/18, p. 38; exhibit F-19; Exhibit F-34). She testified that in withdrawing these funds from her line of credit instead of paying from her personal bank account where she holds her dividend disbursements she did so because "[t]he costs of the continuing litigation have spiraled so out of control that I needed additional funds to maintain my lifestyle and the children's lifestyles" (Tr. 11/13/18, p. 38-39). She testified that "I would not have had anywhere near this amount of money in my [personal] account to be able to cover these checks" (Tr. 11/13/18, p. 39).

It is not clear from the record after trial how much of the line of credit defendant incurred during this litigation was related to counsel fees and how much was related to paying personal expenses. It is undisputed that defendant paid substantial portions of her maintenance and child support obligations to plaintiff from the line of credit.

Defendant testified that she made "over 2.2 million" in direct payments from her line of [*7]credit.^[FN16] She testified that she intends to pay back that line of credit from the sale of the marital residence.

Plaintiff testified that pursuant to the parties' so-ordered stipulation, the defendant would pay maintenance ($8,250 monthly) to plaintiff during the litigation. Defendant testified that she stopped making pendente lite maintenance payments to plaintiff in February 2018 upon the Court issuing the February 5, 2018 decision striking, inter alia, plaintiff's pleadings for maintenance.

Plaintiff contends that defendant's obligation to pay him pendente lite maintenance did not end when the Court struck his pleadings seeking, inter alia, maintenance because the parties entered into a pendente lite stipulation providing that defendant would pay plaintiff maintenance until a judgment of divorce was entered. Plaintiff contends that based on that stipulation, defendant continues to have an obligation to pay him maintenance until a judgment of divorce is entered and that she owes him pendente lite maintenance arrears in the sum of $107,250 [$8,250 monthly x 13 months^[FN17] = $107,250] plus any additional maintenance arrears accrued as of the date of entry of the judgment of divorce.

The Court rejects plaintiff's theory inasmuch as the parties expressly agreed that the consent pendente lite stipulation was entered into to resolve the plaintiff's pending application of omnibus pendente lite financial relief, including maintenance. That application was based upon plaintiff's pleadings seeking maintenance. Once the Court struck plaintiff's pleadings seeking maintenance, the legal predicate for plaintiff to seek maintenance terminated. Furthermore, the record established that plaintiff had already installed and was using spyware against defendant's iPhone to, inter alia, monitor her attorney-client privileged communications with her attorneys in this action when he entered into the consent stipulation for pendente lite relief.

The Court of Appeals in Christian v. Christian found that, in a matrimonial action, generally, if an agreement is fair on its face and its terms were arrived at fairly, in the absence of fraud, duress, overreaching, or undue influence, that agreement will not be set aside lightly (42 NY2d 63, 365 NE2d 849 [1977]).

In Pieter v Polin, the Appellate Division, Second Department, found that (148 AD3d 1191, 50 NYS3d 498 [2 Dept.,2017]):

the party seeking to vacate or set aside a stipulation of settlement has the burden of establishing good cause sufficient to invalidate a contract, such as that the stipulation was the result of duress, fraud, or overreaching, or that the terms of the stipulation were unconscionable, in order to be relieved from the consequences of the stipulation (see Lopez v. Muttana, 144 AD3d at 871, 41 N.Y.S.3d 113; Matter of Melanie K. [Dolores F.], 133 AD3d 756, 757, 20 N.Y.S.3d 149; Yan Ping Liang v. Wei Xuan Gao, 118 AD3d [*8]at 697, 986 N.Y.S.2d 857; Campione v. Alberti, 98 AD3d at 707, 950 N.Y.S.2d 392). Unsubstantiated or conclusory allegations are insufficient [emphasis added] (see HSBC Bank USA, N.A. v. Wielgus, 131 AD3d 510, 511, 15 N.Y.S.3d 170; Rogers v. Malik, 126 AD3d 874, 875, 5 N.Y.S.3d 525).

Here, the record establishes that the terms of the agreement were not arrived at fairly and plaintiff's lack of disclosure of the spyware at the time the parties entered into the pendente lite stipulation constituted fraud under the unique facts and circumstances presented here (see generally Cevera v Bressler, 85 AD3d 839, 925 NYS2d 581 [2 Dept.,2011]). In Jon v. Jon, the Appellate Division, Second Department found that (123 AD3d 979, 979, 1 NYS3d 151 [2 Dept.,2014]:

Marital settlement agreements are judicially favored and are not to be easily set aside" (Simkin v. Blank, 19 NY3d 46, 52, 945 N.Y.S.2d 222, 968 N.E.2d 459). However, because of the fiduciary relationship existing between spouses, " '[a] stipulation of settlement should be closely scrutinized and may be set aside upon a showing that it is unconscionable or the result of fraud, or where it is shown to be manifestly unjust because of the other spouse's overreaching' " (Potter v. Potter, 116 AD3d 1021, 1022, 985 N.Y.S.2d 106, quoting Cruciata v. Cruciata, 10 AD3d 349, 350, 780 N.Y.S.2d 761; see Hallock v. State of New York, 64 NY2d 224, 230, 485 N.Y.S.2d 510, 474 N.E.2d 1178; Kabir v. Kabir, 85 AD3d 1127, 926 N.Y.S.2d 158).

It is well-established that the Court "may examine the terms of the agreement as well as the surrounding circumstances [emphasis added] to ascertain whether there has been overreaching" (Kerr v Kerr, 8 AD3d 626, 627, 779 NYS2d 246 [2 Dept.,2004]). Plaintiff's attempts to ignore his use of spyware and spoliation as "surrounding circumstances" is unavailing and the Court rejects them.

Plaintiff continues to assert that the spyware accusations against him are merely allegations; however, the facts alleged by defendant are not "unsubstantiated or conclusory allegations" inasmuch as those facts were determined by this Court and that finding is law of the case (see People v. Evens, 94 NY2d 499, 727 NE2d 1232 [2000][law of the case addresses the potentially preclusive effect of judicial determinations made in the course of a single litigation before final judgment and is intended to limit relitigation of issues]).

As fully detailed in this Court's decision dated February 5, 2018, it is law of the case that plaintiff installed spyware on defendant's iPhone as early as October 2014 and continuing thereafter and that he ultimately, in flagrant disregard for the Court's order, engaged in spoliation of evidence.

Plaintiff entered into the January 29, 2015 pendente lite stipulation fraudulently because he was privy to the patently unfair advantage in negotiating the stipulation he had from his unfettered access to and monitoring of defendant's attorney-client privileged communications and the ability to listen in on her confidential communications. It is disengenuous for plaintiff to contend that defendant entered into that pendente lite agreement under fair circumstances or that he did not engage in fraud when he entered into that agreement with defendant without her knowing of his surreptitious spyware use to violate her attorney-client privilege. To find it [*9]permissible for plaintiff to benefit from his duplicitous violation of defendant's attorney-client privilege is inconsistent with the case law and with the very integrity of the process.

The Court finds that the unique facts and circumstances here are tantamount to fraud sufficient to invalidate that portion of the contract relating to maintenance payments. As such, there is no basis for this Court to award plaintiff maintenance arrears.

The Court also notes that the purpose of pendente lite maintenance was to tide over the less-monied spouse until the conclusion of the proceeding when the Court could determine the appropriate amount of maintenance after testimony and evidence were presented and evaluated; however, once the pleadings were struck, the issue of maintenance was resolved as moot. It is clear that the plaintiff is not a public charge or in danger of becoming a public charge (see GOL 5-311).

The parties enrolled their daughter in a private school — BIBS — in the fall of 2014. Defendant paid that tuition for the 2014-2015, 2015-2016 and 2016-2017 school years; the maternal grandmother paid that tuition expense for the 2017-2018 and 2018-2019 school years. Subpoenaed enrollment forms and tuition documents for the daughter's school were offered into evidence, on consent, as plaintiff's exhibit F-25. The final statement for school year 2018-2019 dated June 22, 2018 lists total tuition fees paid of $30,494.00 with no outstanding balance.

During the marriage, the parties lived in luxury four (4) floor brownstone home in downtown Brooklyn in Brooklyn Heights that included a garden, herein referred to as the "marital residence". The deed for that property was entered into evidence as Plaintiff's exhibt F30 on consent. Pursuant to the parties' pendente lite stipulation dated January 29, 2015 (so-ordered October 9, 2015), the parties have equally shared (50/50%) the financial cost of the monthly mortgage payment of $5,268 monthly ($5,268 x .5 = $2,634). The parties jointly refinanced the marital residence in May 2013.

Plaintiff testified that the "last time" he saw the mortgage statement the outstanding balance was $560,225.91. Defendant did not offer any testimony regarding the balance of the mortgage on the marital residence.

This Court finds that while the February 5, 2018 decision striking plaintiff's pleadings as to an affirmative claim to equitable distribution of marital property acquired during the marriage it does not prohibit plaintiff from asserting and offering proof in support of any claimed declaration of separate property acquired prior to the marriage. Furthermore, under the unique facts and circumstances presented here it would be inequitable for this Court to deny plaintiff the right to assert and defend his right to any separate property which was not acquired during the marriage or commingled with marital property and/or income during the marriage in a manner whereby it was divested of its separate property classification under existing case law. If this Court were to do so, it would be tantamount to denying plaintiff his due process right to his separate property, if any, acquired prior to the marriage. This Court will not deny plaintiff his due process right to any separate property claim for which he sufficiently traces under existing case law. Defendant's continuing objection to the Court allowing plaintiff to offer testimony and documentary evidence as to his alleged separate property credits is denied.

Domestic Relations Law section 236 (B) (1) [c] defines marital property as "all property acquired by either or both spouses during the marriage and before . . . the commencement of a matrimonial action regardless of the form in which title is held." Marital property is subject to equitable distribution. Separate property is not subject to equitable distribution unless it has, through actions of the party, been divested of its separate property classification.

In contrast, Domestic Relations Law § 236 (B) (d) (1) defines separate property as "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse." Given the fact that marriage is an economic partnership, in determining whether property is separate or marital in nature, it is well-settled that the term "marital property" is to be broadly construed, while the phrase "separate property" is to be narrowly construed (Johnson, 99 AD3d at 766; Scher v Scher, 91 AD3d 842 [2 Dept.,2012]). A party's inability to trace the source of funds claimed to be separate or the existence of evidence that the allegedly separate property was ultimately commingled with marital property, will serve to defeat a party's separate property claim (see Spera v Spera, 71 AD3d 661, 898 NYS2d 548 [2 Dept.,2010]; see also Massimi v Massimi, 35 AD3d 400, 825 NYS2d 262 [2 Dept.,2006]).

It is well-established that separate property that is commingled with marital property loses its separate character and a presumption arises that each party is entitled to a share of the funds (see Fields v Fields, 15 NY3d 158, 905 NYS2d 783 [2010]; see also Golden v. Golden, 98 AD3d at 649—650, 949 N.Y.S.2d 753; Geisel v. Geisel, 241 AD2d 442, 443, 659 N.Y.S.2d 511; Crescimanno v Crescimanno, 33 AD3d 649, 822 NYS2d 310 [2 Dept.,2006]). Despite this presumption, "[t]he titled spouse may seek to rebut that presumption that any commingled funds became marital property by tracing the source of the funds with sufficient particularity" (Overton v. Overton, 118 AD3d 858, 988 NYS2d 239 [2 Dept.,2014]; see also DeGroat v. DeGroat, 84 AD3d 1012, 924 NYS2d 425 [2 Dept.,2011]; Masella v. Masella, 67 AD3d 749, 750, 889 N.Y.S.2d 80; Massimi v. Massimi, 35 AD3d 400, 402, 825 N.Y.S.2d 262).

In Overton v. Overton, the Appellate Division, Second Department held that the party had met her prima facie burden where she established that the balance in her bank account was her separate property by providing documentation that she received that total amount in the form of gifts and inheritances, which are considered separate property (see Domestic Relations Law § 236[B][1][d][1]).

Commingling can also take place where marital income is added to a financial account that initially held only separate property at the date of marriage. In Goldman v. Goldman, the Appellate Division, Second Department held that "while the account at its inception held the defendant's separate property in the form of a check for disability benefits in the amount of $400,000, over the years, that property was commingled with marital assets in the account and, therefore, lost its separate character" (131 AD3d 1107, 1108, 17 NYS3d 166 [2Dept.,2015]; see also Renck v Renck, 131 AD3d 1146, 17 NYS3d 431 [2 Dept.,2015](holding that parties' separate property from an inheritance lost its separate property character once it was commingled with marital assets in a financial account); Litvak v Litvak, 63 AD3d 691, 880 NYS2d 690 [2 Dept.,2009](holding that $193,000 inherited by party from grandparent constituted marital property inasmuch as the party co-mingled it with marital assets).

Where sufficient tracing of separate property contribution to purchase of a marital residence it is within the Court's discretion to credit that spouse with a return of the separate property contribution he or she made toward the purchase of the marital residence from their separate property (Fields v Fields, 15 NY3d 158, 166 [2010]; Krost v Krost, 63 AD3d 798, 800 [2 Dept., 2009]; see also Shkreli v Shkreli, 142 AD3d 546, 36 N.Y.S.3d 208 [2 Dept.,2016]); however, a separate property credit is not strictly mandated and may be dispensed with inasmuch as "the property is no longer separate, but is part of the total marital property" (Murray v Murray, 101 AD3d 1320, 1321 [3d Dept 2012]).

Defendant testified that she used the proceeds from the sale of a Manhattan apartment she owned prior to the marriage to purchase the marital residence (Tr. 11/13/18, p. 18-19). Defendant's exhibit F-WWW was marked into evidence on consent is a collection of four (4) checks related to the purchase of the marital residence which defendant testified were from funds "from the sale of my apartment on Grand Street" which she sold in October 2009 (Tr. 11/13/18, p. 18-19). Defendant testified that she deposited the proceeds from the sale of her separate property of approximately one (1) million dollars into "an HSBC account that I created solely with the funds from the sale of my apartment on Grand Street" (Tr. 11/13/18, p. 21). Defendant testified that she wrote one check from that HSBC account in the sum of $933,188.75 toward the purchase of the marital residence (Tr. 11/13/18, p. 20). Plaintiff did not dispute defendant's testimony that that HSBC account was funded solely with separate property funds or that the $933,188.75 was in fact defendant's separate property funds contributed toward the purchase of the marital residence.

Defendant also testified that she wrote another check from a Chase account in the sum of $458,943.76 for the purchase (Tr. 11/13/18, p. 21). She testified that those funds "...came from a Chase account which I had had open for years" (Tr. 11/13/18, p. 21). On cross-examination, defendant conceded that the funds used to pay the $458,943.76 check did not come from proceeds of the sale of her separate property (Tr. 11/13/18, p. 28-29) but from dividends and income Tr. 11/13/18, p. 29-30).

Defendant also testified that she wrote checks from her separate property in the sums of $49,010.25 (Tr. 11/13/18, p. 22) and $58,125 toward the purchase (Tr. 11/13/18, p. 20). She testified that these checks, together with a mortgage in the sum of $725,000 totaled the $2,325,000 purchase price for the martial residence (Tr. 11/13/18, p. 23).

Plaintiff did not dispute defendant's testimony and documentary evidence in support of that testimony as to her separate property contribution to the marital residence.

The parties stipulated during the trial for documents in support of plaintiff's separate property claim of $244,891 to come into evidence as F-28A-F subject to defendant's continuing objection that any separate property credit claim by plaintiff was mooted by the striking of his pleadings (see decision dated February 5, 2018). Plaintiff's exhibit F28 includes copies of cancelled checks: $1,100, dated November 21, 2009; $232,500, dated December 2, 2009, with a memo "XXX XXX deposit"; $6,866, dated January 6, 2010, with a memo "insurance"; and $4,425, dated January 6, 2010, which defendant conceded was payment to the real estate attorney in connection with the purchase of the marital residence (Tr. 11/13/18, p. 22). Plaintiff's F28 also [*11]includes UBS statements showing a $550,000 securities transfer out of plaintiff's business account and into plaintiff's personal UBS account in November 2009 and a $230,000 wire transfer from plaintiff's personal UBS account on December 1, 2009 to his personal Bank of America account and a subsequent check dated December 2, 2009 drawn on his personal Bank of America account xx94 in the sum of $232,500.

Plaintiff testified that the source of these funds was his separate property was "a variety of securities that had been awarded to me by a client, and companies — as well as my ownership in my business at that time..." On cross-examination, plaintiff testified that all of the money he claims he contributed to the purchase and renovations of the marital residence were funds from "realization of sales of securities that had been in my possession prior to our marriage" and he denied that any of that money was from his income earned during the marriage (Tr. 11/08/18, p.43).

Defendant testified that "[t]he bulk of the money" for renovations to the marital residence "came from my mother who had initially — she had initially gifted me $400,000 to be used to invest and I ended up spending it to help pay for the renovation of the house" (Tr. 11/13/18, p. 26-27).

The Court of Appeals held in Crescimanno v. Credscimanno that "...separate property that is commingled, for example, in a joint bank account, loses its character of separateness and a presumption arises that each party is entitled to a share of the funds (see Banking Law § 675[b]; Sherman v. Sherman, 304 AD2d 744, 758 N.Y.S.2d 667; DiNardo v. DiNardo, 144 AD2d 906, 907, 534 N.Y.S.2d 25). That presumption, however, may be overcome by clear and convincing evidence, either direct or circumstantial, that the account was created only as a matter of convenience (see Chamberlain v. Chamberlain, supra; Wade v. Steinfeld, 15 AD3d 390, 790 N.Y.S.2d 64)" [emphasis added] (33 AD3d 649, 649, 822 N.Y.S.2d 310 [2006]).

In Signorile v. Signorile, the Court found that "...the defendant overcame the presumption that he intended to commingle his funds by establishing that he deposited them in the parties' joint account for only a few days, and then removed the funds and placed them into an account in his name only (see Banking Law § 675[b]; Wade v. Steinfeld, 15 AD3d at 391, 790 N.Y.S.2d 64; McGarrity v. McGarrity, 211 AD2d 669, 671, 622 N.Y.S.2d 521)" (102 AD3d 949, 958 N.Y.S.2d 476 [2 Dept.,2013]).

The Court finds that plaintiff sufficiently traced his separate property contribution to the purchase of the marital residence in the sum of $244,891.00. While plaintiff transferred the separate property funds from his separate account to his personal account, which may have included marital income at that time, the separate property funds were transferred into the account and out in approximately one (1) day. Under these facts and circumstances, the Court finds that, consistent with the existing case law, including Chamberlain v Chamberlain, this transfer was for convenience only and without the intention of creating a beneficial interest, that the funds retained their separate property classification. As such, the plaintiff met his burden of proving his separate property credit in the sum of $244,891.

Plaintiff testified that he contributed "a little over a hundred thousand" to renovations for the marital residence. In support, plaintiff's exhibit F-29 was accepted into evidence over defendant's continuing objection to plaintiff being permitted to offer any testimony or evidence in [*12]support of any separate property claims. Plaintiff's exhibit F-29 includes AMEX statements xx05 from October 2010 though July 2011 and checks dated from November 2009 through December 2010 drawn on plaintiff's personal Bank of America checking account xx94. Plaintiff did not offer any testimony or documentary evidence alleging that the funds used for these checks or to pay his AMEX account between November 2009 and July 2011 were solely from his separate property or that his personal Bank of America xx94 was exclusively funded with separate property and was not also funded with his income earned during that year and a half of the marriage.

A party's inability to trace the source of funds claimed to be separate or the existence of evidence that the allegedly separate property was ultimately commingled with marital property, will serve to defeat a party's separate property claim (see Spera v Spera, 71 AD3d 661, 898 NYS2d 548 [2 Dept.,2010]; see also Massimi v Massimi, 35 AD3d 400, 825 NYS2d 262 [2 Dept.,2006]).

The Court of Appeals held in Crescimanno v. Crescimanno that "...separate property that is commingled, for example, in a joint bank account, loses its character of separateness and a presumption arises that each party is entitled to a share of the funds (see Banking Law § 675[b]; Sherman v. Sherman, 304 AD2d 744, 758 N.Y.S.2d 667; DiNardo v. DiNardo, 144 AD2d 906, 907, 534 N.Y.S.2d 25)" (33 AD3d 649, 649 822 N.Y.S.2d 310 [2006]); see also Renck v Renck, 131 AD3d 1146, 17 NYS3d 431 [2 Dept.,2015][holding that defendant was not entitled to a separate property credit for inherited funds from his parents used to pay down the mortgage on the parties' residence where he failed to establish by clear and convincing evidence that the property originated solely as separate property]).^[FN18]

Here, plaintiff did not meet the burden of tracing the alleged separate property funds directly to the alleged renovations between November 2009 and July 2011 or showing that any alleged separate property funds were not commingled.

Even assuming that plaintiff deposited separate property funds into his personal bank account during this time, which plaintiff did not trace with any specificity, he did not establish that any such separate property funds were not commingled with his income during the corresponding time. It is undisputed that during this time plaintiff was employed and earning income which was marital property. As such, even if plaintiff transferred separate property funds into his personal bank account the Court finds that those funds, if any, lost their separate property classification during the more than a year and a half it could have been in his personal bank [*13]account together with no differentiation from his marital income. Clearly, funds transferred in for many months are not merely for convenience (see Signorile v. Signorile, 102 AD3d 949, 958 N.Y.S.2d 476 [2 Dept.,2013]).

Plaintiff failed to trace with specificity a transfer of separate property into his Bank of America account sufficient to cover the approximately $108,000 in alleged renovation costs and, moreover, these alleged expenses were paid over the course of more than a year and a half when plaintiff was also employed and earning income which would be marital property. Plaintiff's request for a separate property credit in the sum of $108,038.96 is denied for failure to sufficiently trace.

Plaintiff testified that he liquidated his IRA account and used those funds to pay the "computer forensic firm" related to this litigation and "the associated tax penalties associated with the IRA and liquidation" (Tr. 7/30/18, pp. 78-79). Plaintiff testified on cross-examination that this withdrawal "was the totality of my resources" and that "I have no retirement accounts anymore" (Tr. 7/30/18, p. 79). Plaintiff conceded on cross-examination that he "never received a written order by the Court" granting him permission to withdraw the funds in his IRA account (Tr. 7/30/18, p. 110) in violation of the automatic orders. He testified that in making the withdrawal from his IRA he "relied on the advice of counsel and my understanding of what was said in Court" (Tr. 7/30/18, p. 112). Plaintiff's 2017 tax return lists a distribution of IRA funds of $220,209. Plaintiff conceded on cross-examination that the value of his IRA was not $220,000 in 2008 when the parties married and that the value of that IRA increased during the marriage (Tr. 11/08/18, p.41). Plaintiff listed the value of the IRA as $178,356 as of the date of commencement and defendant did not dispute that or offer testimony or documentary evidence as to the value of the IRA.

A party's inability to trace the source of funds claimed to be separate or the existence of evidence that the allegedly separate property was ultimately commingled with marital property, will serve to defeat a party's separate property claim (see Spera v Spera, 71 AD3d 661, 898 NYS2d 548 [2 Dept.,2010]; see also Massimi v Massimi, 35 AD3d 400, 825 NYS2d 262 [2 Dept.,2006]).

Plaintiff offered no testimony or documentary evidence at trial as to the value of the IRA as of the date of marriage and, as such, plaintiff failed to establish any separate property credit he may have been entitled to claim. As such, the Court must find that the total sum of the IRA as of the date of commencement was marital property and that plaintiff has no separate property interest in it. Additionally, inasmuch as plaintiff has no right to equitable distribution, the defendant should receive a credit against plaintiff's separate property credit in the marital residence ($244,891) for the full value of plaintiff's IRA as of the date of commencement ($178,356). As such, the total after the off-set is $66,535 ($244,891 less $178,356 = $66,535).

The Court finds that plaintiff has no right, claim or interest in any remaining assets owned [*14]by the defendant, including her retirement accounts, stock accounts and the UTMA accounts in her name which are currently held in the names of the children, inasmuch as his pleadings including equitable distribution were struck by order dated February 5, 2018.

The record after trial reveals that during this litigation the plaintiff, a freelance consultant, spent a considerable if not the majority of his asserted "working" hours in non-income generating endeavors. The Court does not dispute the social value or personal fulfillment found in volunteering; however, it is evident from the record, including plaintiff's own testimony, that he steadfastly remained underemployed by choice or design during this litigation while relying largely on the financial support of defendant and apparently in an attempt to limit his income for calculation of child support.^[FN19] While receiving almost $100,000 in pendente lite maintenance annually, plaintiff spent hundreds of hours of volunteering instead of augmenting his part-time freelance employment with additional part-time employment or obtaining full-time employment commiserate with his educational and employment background.

Plaintiff was consistently employed before and during the marriage with his reduction in employment taking place in close proximity to the commencement of this litigation. In fact, prior to commencing this action, plaintiff was president of an investor relations agency with international presence.

Plaintiff denied that his reduction in employment was related to this litigation. He testified that he began working freelance in February 2014 and before that he:

ran an investor relations agency. I originally started as an entry level employee, and then eventually became president of it, and I did that for 13 years, and it was called [REDACTED hereinafter referred to as "C**IR"]." (Tr. 7/30/18, p. 75). He testified that the business "came to be no longer viable" because after a "period of very strong growth where we became very focused on the market of Chinese companies listing their stock in the United States. And then there came a time when many of those companies were delisted, and the business shrank very rapidly. But we had very expensive leases in various parts of the world, and significant contractual obligations, such that the business came to be no longer viable." (Tr. 7/30/18, pp. 75-76).

He testified that since commencing this litigation in 2014 he interviewed for one (1) full-time opportunity he found online but that after an interview "they chose somebody else." He testified that he also submitted three (3) proposals to "Chinese companies that were introduced by one of my clients. So far none of them have actually signed on" and he did a proposal for a chain of dental clinics but they "ended up going in a different direction" (Tr. 7/30/18, p. 95). Plaintiff offered no other testimony or documentary evidence as to any other interviews that he has had since 2014.

Plaintiff testified that his current clients comes from referrals and online opportunities. He testified that he works from home primarily for two (2) clients based on their needs: "there are months when, you know, it is a kind of 40-hour work week, and then there is months when [*15]they have little demand for my services." (Tr. 7/30/18, p. 76). He testified that as long as he meets his client's deadlines that he has flexibility to set his own work hours (Tr. 7/30/18, p. 107-108).

The parties entered into a consent stipulation related to pendente lite support dated January 29, 2015 (Plaintiff's exhibit F-27) which was subsequently, on October 9, 2015, so-ordered by the Court on consent of the parties (Judicial Notice #F4). Pursuant to paragraph 4, item E of that stipulation, the plaintiff was entitled to child care costs while the plaintiff was "working, looking for work, as long as the father, through counsel, provides a sworn statement reasonably specifying the employers or prospective employers, any headhunters he is utilizing in his search, as well as the child care provider information. And the mother shall provide reimbursement or an objection within ten days following the father's compliance with the foregoing. And if the objection is not resolved within seven days thereof, either party may seek the Court's intervention." Plaintiff testified that he sent monthly affidavits "for a period" and he acknowledged that he received payments from defendant responsive to those affidavits (Tr. 7/30/18, p. 125).

Plaintiff's claimed monthly add-on expenses for child care necessitated by his employment or job search are reported in these affidavits as: March 2015, $438.09; April 2015, $204; May 2015, $465.38; June 2015, $610.73; July 2015, $497.25.^[FN20] In these affidavits, plaintiff avers that he works "from 9:00 a.m. to 12:30 p.m., and then take a lunch break from 12:30 to 1:30. I then work from 1:30 to 3:00 or 4:00 p.m." Plaintiff testified that he walks the parties' son to school — approximately six (6) blocks away — at approximately 7:45 a.m. after he drops off their daughter at the school bus. He testified that either he or the babysitter picks up the son after school between 3:00 p.m. and 5:30 p.m. depending on whether the son has after school activities. Plaintiff testified that he walks the daughter to the bus stop for school, which is "usually within two to three blocks from the home" every morning at 7:20 a.m.. He testified that the daughter also returns home from school on the bus "around 4:30 for the regular bus, and 5:30 for the late bus."

In each of the child care affidavits, plaintiff represents that he spends approximately 160 hours working, or looking for work, each month; however, included in that 160 hours are volunteer hours he spent working for a non-profit music and performing acts school in Brooklyn. The record reveals that during some months plaintiff volunteered as many as 100 hours of the 160 "work" hours detailed in his affidavits.

Plaintiff testified that he has been chairman of the board of trustees for this non-profit music and performing arts school in Brooklyn, where the parties' children study music, since November 2016. He testified that prior to becoming chairman, he was a trustee since January 2015. Below is a chart of the breakdown of the total claimed work hours and volunteer hours as reported by plaintiff:

Plaintiff testified that, despite his affidavits submitted during 2015, that since November 2016 he has volunteered, on average, approximately ten (10) hours a week as chairman, some weeks less and some weeks "when I have to go up to Albany or something" it is "much more involved" (Tr. 7/30/18, p. 93).

Plaintiff testified that he does not receive any monetary compensation for his volunteering (Tr. 7/30/18, p. 104) but that he hopes to gain experience from his volunteering as chairman for the Music School into a future career at a larger non-profit where he can earn a salary. Plaintiff offered no testimony or documentary evidence that he has interviewed or even applied to any employment position in a non-profit in the nearly five (5) years that this litigation has been pending and he has been volunteering.

Plaintiff testified that this litigation impacted on his freelance employment because "while I was self-represented, there were times when it would cause delays in delivering on projects for clients" (Tr. 7/30/18, p. 93). Plaintiff conceded that the time he spent drafting, preparing and filing numerous written applications as a pro se litigant during this litigation as well as preparing for court appearances could have been spent working for income "if there was demand for services" at those times (Tr. 11/08/18, p. 58) but, he contends, that "the cost per hour of legal representation is like $550. My after tax income is like $150. So every hour that I pay an attorney, you're losing a significant amount of money" (Tr. 11/08/18, p. 58).

Plaintiff testified on cross-examination that he believed that applying for jobs at Trader Joe's and Uber was "diseconomic" (Tr. 11/08/18, p. 24) even though he spent almost half of his claimed "working" hours in unpaid volunteer work.

It is well established that "'[t]he level of child support is determined by the parents' ability to provide for their children rather than their current economic situation'" (Vela v Land-Wheatley, 165 AD3d 807, 807, 85 N.Y.S.3d 503 [2 Dept.,2018], citing Signorile v. Signorile, 102 AD3d 949, 951, 958 N.Y.S.2d 476 [2 Dept., 2013]).

When making a child support finding, the Court is not bound by a parties' representation about his or her income and where that representation is not credible or is suspect the Court may impute income to that party based on, among other things, his or her employment history, future earning capacity, and educational background (see Strohli v. Strohli, — NYS3d — , 2019 WL 3436557 [2 Dept.,2019] ; see also Matter of Rohme v. Burns, 92 AD3d 946, 947, 939 N.Y.S.2d 532 [2 Dept.,2012]).

For 2015 alone, plaintiff conceded that he volunteered 450 hours between January and November at a time when his hourly rate for freelance consulting was $250 ($250 x 450 = $112,500). The Court does not adopt plaintiff's position at trial that augmenting his income with additional part-time work, even if outside his chosen freelance profession, would be "diseconomic."^[FN21] Clearly, plaintiff had sufficient time, talent, education and experience available to him to expand his employment search during this litigation to augment his income from his part-time freelance employment and elected to spend his time in other elective pursuits. While volunteering may bring personal satisfaction, it does not provide financial support to the parties' children and, in effect, plaintiff's election to volunteer almost as many hours as he elected to work in his freelance capacity unilaterally put defendant in the position of funding plaintiff's volunteerism.

Neither party offered any testimony or documentary evidence at trial as to plaintiff's pre-commencement income when he was president of the investor relations firm. Despite the opportunity to do so, defendant did not provide expert vocational testimony as to plaintiff's earning potential.

Plaintiff testified on cross-examination that he applied for several jobs in the months surrounding the commencement of this action that advertised salaries ranging from $121,000 to 225,000 (Tr. 11/07/18, pp. 40-41). Defendant's exhibit F-OOO in evidence, on consent, is a job tracking report listing several job applications. The Court took this into consideration as well as plaintiff's testimony that he bills at the hourly rate of $250 for freelance work and his testimony that he volunteered 450 hours in January through November 2015 alone. The Court also considered plaintiff's testimony that he did not always have freelance jobs available to him during that time. After weighing these various facts, the Court finds that it would be inappropriate to impute the full financial value of the 450 hours plaintiff volunteered in 2015 ($112,500) but also finds that the plaintiff's claimed annual income from his freelance employment during 2015, 2016, 2017 and 2018 was purposefully decreased by plaintiff and that his continued underemployment is a reflection of his lack of reasonable efforts to find full-time employment [*17]commensurate with his education, abilities and past employment.

The Court finds that it is appropriate to impute a total annual income in the sum of $200,000 to plaintiff for the purposes of calculating his child support obligation. In reaching this imputation the Court has also considered the deductions plaintiff took against his reported freelance income, which included payment of his telephone bill and other personal expenses.

The parties enrolled their son — C. — in a private school — MM School — in the fall of 2014. The parties stipulated that the subpoenaed enrollment records be admitted into evidence as plaintiff's exhibit F-27B. The 2018-2019 re-enrollment contract dated February 8, 2018 lists annual tuition as $66,010.00.

Defendant testified that the maternal grandmother has paid the son's private school tuition each year since he was enrolled in 2014 and that she also pays the legal fees related to seeking reimbursement of the tuition from the New York City Board of Education each year. She testified that so far, each year, the reimbursement has been "approximately 90 percent of the full tuition, less the retainer" for the education law firm (Tr. 7/20/18, p. 5-11) and that the maternal grandmother allows her to keep the reimbursement each year.

After the defendant left the marital residence she moved into a rental apartment ($11,500/monthly) where she remained until April 2018. Defendant testified that in April 2018 she moved into a five (5) bedroom, four (4) floor federal townhouse in downtown Brooklyn in Brooklyn Heights. The deed for this property was entered into evidence as plaintiff's F31 on consent. She testified that this home was purchased by her mother for $6.35 million and is held by the "R[REDACTED]. Grandchildren's Trust" for the benefit of these parties' children. A copy of the Trust Agreement was entered into evidence as plaintiffs exhibit F-24.

Defendant testified that the trustees of the "R. Grandchildren's Trust" — her brother and sister — granted her permission to live in that home during her life. She testified that she did not contribute financially to the purchase of that property and that while she pays utilities and home owners insurance for that property she does not pay any rent or mortgage payments toward the property (Tr. 06/28/18, p. 34). This greatly decreases the defendant's personal housing expense.

The Court notes that, despite a full opportunity to do so, plaintiff offered no testimony or documentary evidence into the trial record seeking the imputation of income to defendant based upon her living "rent-free" in the "Grandchild Trust" home or what the financial value of that living situation provided to defendant. As such, there is no record after trial or evidence before the Court from which to determine whether any imputation would be appropriate and, if so, how much that imputation should be.

The record is clear that defendant received financial assistance from her family during this litigation. Defendant conceded that she receives $14,000 annually as a gift from her mother and that her mother pays for the parties' son's private school tuition and then allows her to keep the reimbursement each school year in the sum of approximately $59,400 ($66,000 x .90 = $59,400). Defendant conceded in her affidavit of net worth dated May 31, 2018 that her mother pays for certain personal expenses for her, including vacation expenses; however, plaintiff offered nothing in the record as to the value of these benefits so there is an insufficient record [*18]before the Court to impute income to defendant for these benefits.

Based on the record after trial, the Court finds that under the facts and circumstances presented here, it is appropriate to impute $73,400 in annual income to defendant in addition to the $373,400 ($25,000 x 12 months = $373,400) in dividends that she receives from her stock portfolio for a total imputed income of $446,400 annually for the purchases of calculating child support.^[FN22]

Both of the children attend private schools in Brooklyn near the Marital Residence. Plaintiff and defendant both use child care with the children. They both list dining out expenses and substantial vacation budgets. The children benefit from private tutors, art and music lessons, camps during the summer and extracurricular and enrichment activities during the school year.

Plaintiff conceded on cross-examination that he spent $1,475 monthly in vacations, which included a month-long vacation to Scotland during the summer of 2017 (Tr. 11/08/18, p. 25). He testified that the parties' children were in Scotland for two (2) weeks of that month and then he remained with Prof. A and their child in common, N. (Tr. 11/08/18, p. 25). He testified that Prof. A owns a residence in Scotland and that he stayed in that residence with her when he traveled to Scotland (Tr. 11/08/18, p. 60). Plaintiff also conceded on cross-examination that he vacationed in the Bahamas in February 2017 (Tr. 11/08/18, p. 26).

Defendant's affidavit of net worth dated May 31, 2018 lists $2,543.60 monthly in vacation expenses for herself and the children.

Clearly, the children enjoyed a high standard of living during the marriage and the Court must consider that factor when determining the appropriate cap for the calculation of child support.

Section 240 of the Domestic Relations Law of New York provides guidelines by the Child Support Standards Act ("CSSA") which must be considered in ascertaining child support. "[T]he CSSA provides a precisely articulated, three-step method for determining child support' [quoting Matter of Cassano, 85 NY2d 649, 652, 628 N.Y.S.2d 10, 651 N.E.2d 878 (1995)]. The first step requires the computation of combined parental income' (Domestic Relations Law § 240[1—b][b][4]; [c][1] ). The amount of income' attributed to each parent is derived by adding gross income, as reported on the most recent Federal tax return, and, to the extent not included as gross income, investment income, imputed income and other income received' by the parent from eight enumerated sources' " (Matter of Graby v. Graby, 87 NY2d 605, 609—610, 641 N.Y.S.2d 577 [1996], quoting Family Ct Act § 413[1][b][5].

After computing statutory income, a limited number of deductions are allowable under Domestic Relations Law § 240(1—b). The CSSA provides for eight categories of [*19]deductions from income, which includes maintenance payments and Federal Insurance Contributions Act (FICA) taxes paid (see Domestic Relations Law § 240[1—b][b][5][vii][A]—[H]. Significantly, receipt of a distributive award payments is not a statutory category of income, nor is the payment of a distributive award a recognized deduction.

The court next multiplies the combined parental income figure, up to a ceiling of $80,000, by a designated percentage based on the number of children to be supported, and then allocates that amount between the parents, applying each parent's respective portion of the total income to reach the amount of each parents support obligation (Domestic Relations Law § 240[1—b][b][3]; [c][2]. In the final step, where combined parental income exceeds $80,000, the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of [Domestic Relations Law § (1—b) and/or the child support percentage' (Domestic Relations Law § 240[1—b][c] [3] ).

(Holterman v. Holterman, 3 NY3d 1, 814 N.E.2d 765 [2004]).

The CSSA formula provides for regular increase in the statutory guideline cap over time. The CSSA cap is currently $148,000.00.

Effective January 31, 2010, the Child Support Standards Act provides "[t]he court shall multiply the combined parental income up to the amount set forth in paragraph (b) of subdivision two of section one hundred eleven-I of the social services law by the appropriate child support percentage and such amount shall be prorated in the same proportion as each parent's income is to the combined parental income." (DRL 240 1-b [c][2]). The Social Services law states that:

[t]he combined parental income amount to be reported in the child support standards chart and utilized in calculating orders of child support in accordance with subparagraph two of paragraph (c) of subdivision one of section four hundred thirteen of the family court act and subparagraph two of paragraph (c) of subdivision one-b of section two hundred forty of the domestic relations law shall be one hundred thirty thousand dollars; provided, however, beginning January thirty-first, two thousand twelve and every two years thereafter, the combined parental income amount shall increase by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPIU) as published by the United States department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars.

(Social Services Law § 111-I[2][b]).

Domestic Relations Law section 240 1-b (b)(5)(iii) further defines gross income. "[T]o the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the amount of income or compensation voluntarily deferred and income received, if any, from the following sources:

(A) workers' compensation,

(B) disability benefits,

(C) unemployment insurance benefits,

(D) social security benefits,

(E) veteran's benefits,

(F) pensions and retirement benefits,

(G) fellowships and stipends, and

(H) annuity payments

The Court next multiplies the combined parental income figure up to an initial statutory cap, which is currently combined parental income up to the sum of $148,000.00, by a designated percentage based on the number of children to be supported, and then allocates that amount between the parents, applying each parent's respective portion of the total income to reach the amount of each parent's support obligation (see Holterman v. Holterman, 3 NY3d at 11, 781 N.Y.S.2d 458, 814 N.E.2d 765, supra, quoting DRL 240[1-b][b][3]; [c][2] ). In the final step, where combined parental income exceeds the statutory cap, "the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the17 factors set forth in paragraph (f) of [Domestic Relations Law § 240(1-b)] and/or the child support percentage" (id).

The "paragraph (f)" factors include the financial resources of the parents and child, the health of the child and any special needs, the standard of living the child would have had if the marriage had not ended, tax consequences, non-monetary contributions of the parents toward the child, the educational needs of the parents, the disparity in the parents' incomes, the needs of other nonparty children receiving support from one of the parents, extraordinary expenses incurred in exercising visitation and any other factors the court determines are relevant.

Finally, the Court is required to articulate its reasons for awarding child support in addition to basic child support above the statutory cap (see Wallach v. Wallach, 37 AD3d 707, 831 N.Y.S.2d 210 [2 Dept.,2007], quoting Matter of Cassano v. Cassano, 85 NY2d 649, 654-655, 628 N.Y.S.2d 10, 651 N.E.2d 878, supra.).

On October 26, 2015, the Child Support Standards Act (DRL §240(1-b) (5)(iii)) was amended, effective January 26, 2016, to provide that in a calculation of child support in Family and Supreme Court, maintenance awards were to be considered income to the payee spouse for the calculation.^[FN23] Here, however, plaintiff's pleadings as to any affirmative financial relief were struck pursuant to order dated February 5, 2018 and, as such, there is no award of maintenance to plaintiff. As such, there is no basis to adjusting the parties' incomes to consider any maintenance award.

As such, the plaintiff's income for the purposes of child support is $176,123.08 ([$200,000 — plaintiff's 2017 reported gross income plus imputed income] less combined FICA [*20][$9,898.92^[FN24] ] and NYC taxes [$13,978^[FN25] ] = $176,123.08) and defendant's income is $446,400 [2017 gross income plus imputed income])^[FN26] .

As such, the full combined parental income, based upon their 2017 incomes, the most updated financial information provided by the parties at trial together with the imputation of income as detailed hereinabove but less the statutory deductions, is $622,523.08 (plaintiff, $176,123.08; defendant, $446,400; total: $622,523.08).

Accordingly, the defendant's child support obligation up to the $148,000 cap would be as follows: combined income up to and including the $148,000.00 cap = $148,000.00 x .25 [2 children] = $37,000 basic child support annually ($3,083.33 monthly). Plaintiff's pro rata = 28.29% which is $10,467.97 annually ($872.33 monthly) and defendant's pro rata = 71.71% which is $26,532.03 annually ($2,211.00 monthly).

Where combined parental income exceeds $148,000.00, as in the case at bar, the statute provides that "the court shall determine that amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of this subdivision and/or the child support percentage" (Matter of Cassano v. Cassano, 85 NY2d 649, 653, 628 NYS2d 10 [1995] (quoting Family Ct Act 413 [1] [c] [3]). "The court must articulate its reason or reasons for that determination, which should reflect a careful consideration of the stated basis for its exercise of discretion, the parties' circumstances, and its reasoning why there should or should not be a departure from the prescribed percentage" (Gillman, 139 AD3d at 669). "In addition to providing a record articulation for deviating or not deviating from the statutory formula, a court must relate that record articulation to the statutory factors" (Matter of Pittman v. Williams, 127 AD3d 755, 756, 7 N.Y.S.3d 227 [2d Dept., 2015]; see Bast v. Rossoff, 91 NY2d 723, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998].

"[T]he court may disregard the formula if 'unjust or inappropriate' but in that event, must give its reasons in a formal written order, which cannot be waived by either party (Family Ct Act § 413 [1] [g])" Cassano, 85 NY2d at 654. "Whenever the basic child support obligation derived by application of the formula would be 'unjust or inappropriate, the court must consider the 'paragraph (f)' factor," including, "the financial resources of the parents and child, the health of the child and any special needs, the standard of living the child would have had if the marriage had not ended, tax consequences, non-monetary contributions of the parents toward the child, the educational needs of the parents, the disparity in the parents' incomes, the needs of other nonparty children receiving support from one of the parents, extraordinary expenses incurred in [*21]exercising visitation and any other factors the court determines are relevant" (id. at 649).

The Court of Appeals has held that when "there was sufficient record indication that no extraordinary circumstances were present," application of statutory child support percentage of combined parental income exceeding the statutory cap was justified and not an abuse of discretion (Cassano, 85 NY2d at 655). The Appellate Division, Second Department has held that the requirements of Cassano were satisfied when the Court set forth in detail that "based upon the standard of living the children would have enjoyed if the parties remained together" the formula set forth in the Child Support Standards Act was to apply to parental income in excess of the statutory cap (Peddycoart v. MacKay, 145 AD3d 1081, 45 NYS3d 135 [2 Dept.,2016]; see also Kennedy v. Kennedy, 62 AD3d 755, 757 880 N.Y.S.2d 97 [2 Dept., 2009]).

Here, the Court finds that it is appropriate to award final basic child support in excess of the $148,000.00 cap, under Cassano, based upon the financial resources of the custodial and non-custodial parent, the standard of living the children would have enjoyed had the marriage not been dissolved, the tax consequences of the parties, the non-monetary contributions that the parents will make toward the care and well-being of the children and the determination that the gross income of the plaintiff is less than that of the defendant.

If a child's lifestyle may be maintained by the support provided, a similar award may be made, and the "cap" adjusted to meet that level of support (see Lago v. Adrion, 93 AD3d 697, 699, 940 N.Y.S.2d 287[2d Dept., 2012]).

Based on the clear standard of living and lifestyle that both parties reveal by the expenses they incur and established during the marriage, as reflected in both parties' submissions and affidavits of net worth, earnings, and assets of the parties, the Court uses its discretion to utilize a combined income cap above the statutory limit of $148,000 to that of $350,000 (see generally Kaplan v Kaplan, 21 AD3d 993, 801 NYS2d 391 [2 Dept.,2005][holding that it was not an improvident exercise of trial court's discretion to calculate child support based upon a combined parental income cap of $300,000 where the father earned in excess of $400,000 annually]; see also Huffman v Huffman, 84 AD3d 875, 923 NYS2d 583 [2 Dept.,2011][holding that trial court properly considered $300,000 in payors income in calculating child support based upon the standard of living that the parties' children would have enjoyed had the marriage not dissolved and upon the parties' disparate financial circumstances]; contra Beroza v Hendler, 109 AD3d 498, 970 NYS2d 313 [2 Dept.,2013][holding that it was an improvident exercise of trial court's discretion to calculate child support based upon a combined parental income cap of only $255,000 where the combined parental income was more than $700,000 annually and the plaintiff earned approximately $248,000 because the $255,000 "was only marginally higher" than the plaintiff's annual income of $248,000 and would be contrary to the cost-sharing scheme directed by the CSSA and instead found that a combined parental income of $400,000 was appropriate]; see also Charap v Willett, 84 AD3d 1000, 924 NYS2d 433 [2 Dept.,2011]; Doscher v Doscher, 137 AD3d 962, 27 NYS3d 231 [2 Dept.,2016]).

In reaching this conclusion, the Court has considered the expenses reported in the parties' respective supporting affidavits and sworn affidavits of net worth as fully detailed hereinabove and the testimony during trial.

In considering the parties' self-reported expenses and their lifestyle the cap of $148,000.00 would not provide a sufficient basis to the support these children (see Peddycoart v. [*22]MacKay, 145 AD3d 1081, 45 N.Y.S.3d 135 [2d Dept., 2016]). Here, the total combined parental income is: $492,830.51. The Court finds that after trial it is appropriate to cap the combined parental income at $350,000 for calculating basic child support, which results in a total annual basic child support obligation of $87,500.00 ($350,000 x .25 [2 children] = $87,500.00 annually/$7,291.67 monthly). Plaintiff's pro rata share = 28.29% or $24,755.34 annually ($2,062.94 monthly) and defendant's pro rata share = 71.71% or $62,744.66 annually ($5,228.72 monthly).

Commencing on the 15th day of September 2019 and continuing on the 15th day of each month thereafter defendant shall pay basic child support to plaintiff in the sum of $5,228.72 monthly. The Court notes that defendant's annual gross income exceeds $440,000, so even after taking into account the $62,744.66 in annual child support defendant is still left with more than $377,000 to cover her pro rata add-on child support obligations while still providing for personal expenses. The Court notes that defendant testified that she resides in a four (4) story federal townhouse owned by a trust for the benefit of the children and that she pays no rent to reside there nor does she contribute to the carrying charges for this property. While plaintiff failed to offer any testimony or documentary evidence at trial as to the value of this benefit to defendant, the Court recognizes there is a significant financial benefit to defendant to live in a luxury home in downtown Brooklyn at no cost to herself and has factored this in when calculating child support on combined parental income up to a cap of $350,000.

In as much as the children are twins, there is no basis for the Court to calculate child support upon emancipation of either child as both children will emancipate at the age of twenty-one 21) years old in March 2030.

Additionally, inasmuch as the child support award made herein is less than the pendente lite child support agreed to by the parties in the January 29, 2015 stipulation, there is no basis to award any child support arrears (see generally Hart v. Rosenthal, 173 AD3d 695, 103 NYS3d 107 [2 Dept.,2019]).

The record at trial revealed that these children experience many summer camps and extracurricular/enrichment activities including music lessons and private tutors. The parties shall be pro rata financially responsible for statutory add-ons, including reasonable extracurricular activities and unreimbursed medical expenses, as follows: plaintiff, 28.29%; defendant, 71.71%.

The parties shall also contribute their pro rata share for reasonable child care when the children are not in school necessitated by the parties' maintaining employment: plaintiff, 28.29%; defendant, 71.71%.

Pursuant to DRL 236(8)(a):

"[t]he court may...order a party to purchase, maintain or assign a policy of insurance on the life of either spouse, and to designate either spouse or children of the marriage as irrevocable beneficiaries during a time fixed by the court. The interest of the beneficiary shall cease upon termination of such party's obligation to provide maintenance, child support or a distributive award...."

This provision empowers the Court to secure future payments of maintenance and child support, as well as payments pursuant to any distributive award, by directing the payor spouse to [*23]purchase, maintain or assign life insurance to protect the recipient in the event the payor dies prior to the time the future obligation is satisfied (see Macari v Marichal, 83 AD3d 942, 920 N.Y.S.2d 731 [2 Dept., 2011]; see generally Moran v Grillo, 44 AD3d 859, 843 N.Y.S.2d 674 [2 Dept., 2007]; Penna v Penna, 29 A.D.3d56 970, 817 N.Y.S.2d 313 [2 Dept.,2006]; Corless v. Corless, 18 AD3d 493, 795 N.Y.S.2d 273 [2 Dept., 2005]; Comstock v. Comstock, 1 AD3d 307, 766 N.Y.S.2d 220 [2 Dept., 2003]).

Appellate case law has held that to require that a life insurance policy be reduced each year "...by the amount of child support paid in the prior year, is difficult to administer" (Fogarty v. Fogarty, 284 AD2d 300, 302, 725 N.Y.S.2d 673 [2 Dept.,2001]) and that a fixed amount of life insurance for collateralization of support obligations is preferable (see Lueker v. Lueker, 72 AD3d 655, 898 N.Y.S.2d 605 [2 Dept.,2010]; see also Corless v. Corless, 18 AD3d 493, 795 N.Y.S.2d 273 [2 Dept.,2005]; Morton v. Morton, 130 AD2d 558, 515 N.Y.S.2d 499[2 Dept.,1987]); however, under the facts and circumstances presented here, the Court finds that it is appropriate to allow the defendant to reduce her life insurance annually to reflect child support actually paid directly to the plaintiff in the prior year.

Defendant shall obtain a life insurance policy in the sum of $664,047.44 and shall designate the children as irrevocable beneficiaries until her child support obligation ceases or the death of either of the parties or the children.^[FN27] Defendant shall provide proof of the existence of said policy to plaintiff by January 15th of each year by regular and certified mail to an address provided by plaintiff.

Pursuant to Domestic Relations Law section 255, both parties are on notice " . . . that once the judgment is signed, a party thereto may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan" (DRL 255).

In the event that either party maintains health insurance for the benefit of their spouse, the other party may be entitled to health insurance through a COBRA option, or otherwise may be required to secure their own health insurance. Plaintiff and defendant shall each be financially responsible for the cost, if any, associated with their own dental and vision coverage.

Pursuant to Domestic Relations Law 236[B][8][a], the court has the authority "to order a party to purchase, maintain or assign a policy of insurance providing benefits for health and hospital care and related services for either spouse or children of the marriage...."

Pursuant to the parties' so-ordered consent pendente lite stipulation, defendant paid 100% of the family health insurance premiums during this litigation (paragraph 9; plaintiff's exhibit F-27C).

Neither party offered any testimony about the cost of maintaining the children on that health insurance or the availability of any other available health insurance. Defendant shall continue providing the children's health insurance and shall be solely financially responsible for [*24]that associated cost inasmuch as she provided no testimony or documentary proof as to what portion of the monthly premium relates to the children's coverage.

The parties jointly enrolled their children in private school in 2014. The children have each remained in their respective private schools throughout this protracted litigation. Neither party offered testimony at trial that the children should not remain in their respective private schools. As such, the Court finds that it is in the children's best interest to remain in the private schools the parties' selected for them years ago and that the parties shall be responsible for their tuition on a pro rata basis as detailed hereinabove (Domestic Relations Law § 240[1-b][c][7]; see generally Iarocci v Iarocci, 98 AD3d 999, 951 NYS2d 176 [2 Dept.,2012]; Llamas v Llamas, 301 AD2d 369, 753 NYS2d 461 [1 Dept.,2003]; see also Auliciono v Kaiser, 44 AD3d 1140, 844 NYS2d 457 [3 Dept.,2007]).^[FN28]

Plaintiff commenced a romantic relationship with another woman in 2014 — Prof. A. — and, thereafter, during this litigation, he fathered a child with her. The child — N. — was born during this litigation. There was motion practice during this litigation wherein plaintiff sought permission of the Court, over defendant's objection, to introduce the children to Prof. A., who was pregnant with his child at the time, in anticipation of the birth of their half-sibling.

Prof. A and N. live in New Jersey; however, plaintiff testified that Prof. A. and N. stay at the marital residence on weekends during the school year "almost all the time, because they have activities on Saturday that require them to be in Brooklyn, and at the times more loose during the summer." He testified that on weekends when the children of the marriage have parenting time with the defendant he "for the most part" goes to New Jersey.

Plaintiff testified that he used none of the support money he received from defendant during this action for — Prof. A. (Tr. 8/03/18, p. 55); however, he testified that "there may have been times when, when we had dinner at the residence where [N.] consumed a small portion of the groceries that were purchased for the house" (Tr. 8/03/18, p. 55). He testified that defendant was paying him support, including the carrying costs and utilities for the house during the time when Prof. A. and N. were staying in the marital residence every other weekend (Tr. 8/03/18, p. 56).

Plaintiff testified repeatedly during cross-examination that he did not incur expenses to support N., his child in common with Prof. A. (Tr. 11/08/18, p. 27). He conceded on cross-examination that during this litigation Prof. A has spent money directly and indirectly that benefitted him (Tr. 11/08/18, p. 62).

Plaintiff testified that when Prof. A. and N. stay in the master bedroom when they stay in the marital residence (Tr. 11/08/18, p. 48). Plaintiff's election to commence a second family [*25]during this litigation and according to defendant to, in effect, move that second family into the marital residence during the pendency of this divorce has been a source of contention between the parties. The Court thoroughly addressed the nature of plaintiff's judgment related to this issue in written decisions during this litigation. Despite defendant's clear indignation at plaintiff's personal choices during this litigation, the fact that plaintiff has a second family is not a primary basis of consideration in determining any award of exclusive use and occupancy of the marital residence. Plaintiff's interest in remaining in the marital residence, together with Prof. A. and N., instead of moving into a three-bedroom apartment that would easily accommodate him and the parties' two (2) children is evident as is defendant's emotional disinclination to plaintiff moving his new romantic partner and child — literally into the former marital bedroom — in the marital residence. Despite the parties' deep connect to these divergent emotional issues they are not the legal standard by which the Court must reach a determination on the issue of exclusive use and occupancy (see generally Montgomery v. Prioleau, 94 AD3d 1124, 942 NYS2d 635 [2 Dept.,2012]).

Defendant requests that the Court order the marital residence sold so that she can use the sales proceeds to pay off the mortgage on the marital residence and to pay down her personal line of credit which she incurred related to this litigation in the sum of $2,694,045.44 as of November 2018 during the ongoing litigation (Tr. 11/13/18, p. 26).

Defendant called M.W. as a witness, who testified that he is a stock portfolio manager for a few different members of the defendant's family, including defendant. He testified that the personal loan of over $2.2 million is secured by defendant's securities and that it would be "problematic to use the stock to...pay off the loan" because "we don't know the cost basis on the stock, we believe it to be very low, because it was given to her when she was a child, so there is a large tax consequence" (Tr. 7/30/18, pp 6-7). Defendant testified that she received the stocks in her portfolio "throughout my teenage years" (Tr. 11/13/18, p. 18). These stocks are all derivative stocks from a tobacco company, where defendant's father was employed before his passing (Tr. 7/30/18, p. 24).

M.M. testified that the securities backed credit line account was opened "in about 2015 or '16" and that draws on that line of credit were made directly to defendant's counsel's IOLA account. Statements from October 2017 through October 2018, except for January 2018, of defendant's UBS account were entered into evidence as plaintiffs F33 on consent. He testified that all of the stocks are derivative stocks from one tobacco company.^[FN29]

M.M. testified that he believed the tax consequence, between federal and New York, would be approximately one-third (33.3%). Additionally, he testified, her securities are her source of income and if she sold them it would remove her income. Defendant also testified that selling her stock would remove the source of "most" of her income which she receives in dividends from her stock (Tr. 11/13/18, p. 17). She testified that the only other source of income she currently receives that that "[m]y mother allows me to keep the refund that I get back from [the child's] tuition from the city, and in addition to that she gives me $14,000 a year which she is [*26]able to do tax free and then occasionally I work" (Tr. 11/13/18, p. 17).

Plaintiff requests that the Court grant him exclusive use and occupancy to him, as the custodial parent, of the marital residence until the parties' children, who are twins, reach 18 years old in March 2027. He posits that removing the children from the marital residence would not be advantageous to the children because the marital residence provides the children with a more spacious home than if they move into a three (3) bedroom apartment.

The children have resided in the marital residence since they were two (2) years old. The parties resided together with the children in the marital residence until October 30, 2014 when defendant was excluded from the marital residence.^[FN30]

Plaintiff testified that he and each of the two (2) children have their own bedrooms in the marital residence. He testified that the parties' son has "a spacious room, he has his own bathroom, he has closets..." and that the parties' daughter — M.C. — has "a nice, airy, large room" and that she has her own bathroom.

He testified that the children use the outdoor space to and that "[t]hey play badminton, they do soccer, they have Nerf gun wars, that type of stuff..." and that he grills outside for the children. He testified that the children have sleep-overs and use the parlor and the library as well as their bedrooms for play dates with friends and for tutoring (Tr. 11/13/18, p. 11) and that they would not have these amenities if they move to an apartment.

On cross-examination, plaintiff conceded that he takes both children to public parks in Brooklyn (Tr. 11/08/18, p. 47). He conceded that the children could still have play dates with their friends if they lived in a three bedroom apartment instead of the marital residence townhouse "it would be different, but possible" (Tr. 11/08/18, p. 49). He testified that it would be "more difficult" for the children to do their homework if they lived in a three bedroom apartment instead of in the marital residence because "[t]hey tend to interfere with each other so you have to separate them to get the homework done" (Tr. 11/08/18, p. 49). He testified that sending the children to their respective rooms for tutoring or homework had a "negative connotation" (Tr. 11/08/18, p.).

Plaintiff offered no testimony or documentary evidence addressing how, if at all, defendant may be able to repay the line of credit which she opened and incurred during this protracted litigation. The record reveals that the parties incurred vast financial consequences, including counsel and expert fees, leading out of the plaintiff's use of spyware against defendant's iPhone and plaintiff's subsequent spoliation of evidence related thereto. Defendant contends that but for that aspect of this litigation, it is plausible that she would not have incurred the considerable counsel and expert fees she incurred.

On consent, plaintiff offered a market rent study of the marital residence into evidence (Plaintiff's exhibit F-21) and the real estate appraiser who prepared that report, Domenick Neglia, testified at trial (Tr. 7/20/18, p. 49; Mr. Neglia's curriculum vitae was entered into evidence on [*27]consent as plaintiff's exhibit 20).^[FN31] Mr. Neglia testified that he was retained by plaintiff to inspect the marital residence (plaintiff was present for the inspection) and to prepare an estimated market rent for three (3) bedroom apartments in Brooklyn Heights comparable in size, amenities and location to the Marital Residence. Mr. Neglia testified that "not a lot of houses in the neighborhood that are completely rented" so finding comparables "necessitated analyzing large apartments in private houses, besides individual single family houses for the analysis." He testified that "we uncovered seven comparable rentals that we believe are very similar, and most aspects compare to the subject property" (Tr. 7/20/18, p. 59). He testified that each of the seven (7) comparable homes are located in Brooklyn Heights. Mr. Neglia testified on cross-examination that he did not calculate the commuting times from the children's respective schools to the comparable rental properties used to calculate fair market value rent for the marital residence but he testified that each comparable was within walking distance of the marital residence.

Mr. Neglia testified that, based on comparable private houses, which ranged from $8,700 to $12,250 monthly, his professional opinion was that the fair market rental value of the marital residence was $10,500/monthly. Mr. Neglia testified that his professional opinion was that the fair market value of a comparable three (3) bedroom apartment in the neighborhood [Brooklyn Heights] of the marital residence would be "[b]etween $4,500 and $5,600 a month." Mr. Neglia's report did not detail his professional opinion as to the fair market value of a comparable three (3) bedroom apartment in any of the surrounding neighborhoods from the marital residence.

Mr. Neglia was cross-examined extensively by defendant's counsel, including whether or not the presence of a vacant storefront and a movie theater nearby as well as an Islamic religious building further down the block amounted to external obsolescence which would cause him to adjust his fair market rental value assessment: Mr. Neglia testified that these aspects of the neighborhood pointed out by defendant's counsel were "too far to have any negative or positive effect on the value..."

Defendant called Michael Pavlakos, a New York State certified real estate appraiser, as a witness. He testified that defendant hired him to "estimate the fair market rental value of a three bedroom, two bath apartment in the neighborhoods of Brooklyn Heights, Cobble Hill, Carroll Gardens and Red Hook" (Tr. 11/07/18, p. 5). Mr. Pavlakos prepared a document entitled "Fair Market Rental Value Analysis" which was marked into evidence as Defendant's F-KKK, on consent.

He provided a second report, "Survey of Driving Times", which was entered into evidence as defendant's exhibit F-LLL on consent, detailing driving times from rental apartment locations from his report at approximately 8:00 a.m. on school days between each of the comparable apartments and the children's respective schools (Tr. 11/07/18, p. 6). In preparing his report, Mr. Pavlakos relied on eight (8) rental comparables. No spectrum of fair market rental value was provided to account for any variation in amenities in apartments considered in the [*28]report.

Mr. Pavlakos testified to the following estimated fair market rental values for three bedroom, two bath apartments in "good condition" by neighborhood with the following driving times to each of the children's schools (Tr. 11/07/18, p. 6-12):

On cross-examination, Mr. Pavlakos conceded that he did not know if plaintiff owns an automobile (Tr. 11/07/18, p. 14) and that he was not informed that neither party currently drives either of the children to school (Tr. 11/07/18, p. 15). He conceded on cross-examination that he does not have any particular certifications to conduct a driving survey (Tr. 11/07/18, p. 15) and on redirect that he was not aware of any certifications to conduct driving surveys (Tr. 11/07/18, p. 27). On cross-examination Mr. Pavlakos conceded that there are more neighborhoods in Brooklyn that are within a 30 minute commute from the children's schools than the four (4) neighborhoods he detailed and that there were also more comparables in the neighborhoods he detailed than what he included in his report (Tr. 11/07/18, p. 17).

Mr. Pavlakos testified that one of the comparable apartments in his report included six (6) rooms, including three (3) bedrooms in 1,078 square feet (Tr. 11/07/18, p. 17) and another apartment included five (5) rooms, including three (3) bedrooms in 1,250 square feet (Tr. 11/07/18, p. 18). The largest apartment he considered was 1,350 square feet (Tr. 11/07/18, p.22). He testified that "[a] lot of factors that could be — — the difference could be attributed to, the amenities, condition, size, backyard, roof terraces. There's a variety of amenities that can effect pricing or what two people would agree on would be a fair rent" (Tr. 11/07/18, p. 19). He conceded that the apartments he consider in preparing his report were all rented at the time he conducted his research and, as such, were unavailable on the market (Tr. 11/07/18, p. 23). On cross-examination he testified that he did not know the rental prices for new buildings in the neighborhoods he considered or if there were other three (3) bedroom apartments in those neighborhoods that had higher rental prices.

In McCoy v McCoy, the Appellate Division, Second Department addressed the factors the Court should consider when determining whether exclusive use and occupancy of a marital residence is appropriate (117 AD3d 806, 809, 985 NYS2d 629 [2 Dept.,2014]):^[FN32]

Domestic Relations Law § 236 (B) (5) (f) provides that the Court may, in its discretion, make an order regarding the use and occupancy of the marital residence "without regard [*29]to the form of ownership of such property." Exclusive possession of the marital residence is generally granted to the custodial parent (see Cabeche v Cabeche, 10 AD3d 441 [2004]; Goldblum v Goldblum, 301 AD2d 567, 568 [2003]; see also Gahagan v Gahagan, 76 AD3d 538, 540 [2010]). In determining whether the custodial parent should be granted exclusive occupancy of the marital home, the trial court should consider, inter alia, the needs of the children, whether the noncustodial parent is in need of the proceeds from the sale of that home, whether comparable housing is available to the custodial parent in the same area at a lower cost, and whether the parties are financially capable of maintaining the residence (see Graziano v Graziano, 285 AD2d 488, 489 [2001]). As one factor, the "need of the custodial parent to occupy the marital residence [must be] weighed against the financial need of the parties" [EMPHASIS ADDED] (Goldblum v Goldblum, 301 AD2d at 568; see Skinner v Skinner, 241 AD2d 544, 545-546 [1997]).

Here, the record established that defendant incurred vast sums of litigation costs necessitated, in part, by plaintiff's spyway use and subsequent spoliation and she has outstanding debt associated therewith of more than $2 million dollars. While defendant has substantial financial assets, she does not have liquid assets from which to draw and satisfy this obligation that would not result in staggering tax consequences. If defendant were required to liquidate a portion of her stock portfolio it would decrease her income which would, in effect, have a negative impact on the children's financial stability inasmuch as defendant, the non-custodial parent, will be paying significant child support to plaintiff, the custodial parent.

The Court finds that the defendant is in need of her share of the proceeds of a sale of the marital residence to satisfy, in part, the vast sums of counsel and expert fees she incurred in this litigation and that her need of the proceeds from the sale of that home outweigh plaintiff's need to continued exclusive occupancy of the marital residence.

The record established, from the testimony of plaintiff and defendant's expert real estate witnesses, the ready availability of adequate housing for plaintiff and the children in the proximate vicinity of the marital residence that will not significantly interfere with the children's commute to their respective schools, interfere with their roots in the area or to make it more time consuming or difficult for the children to have parenting time with the defendant and continued ready access to friends and social connections in the neighborhood.^[FN33] In fact, the apartments considered in the comparables were, in most cases, only a few blocks away from the marital residence.

Additionally, in reaching this determination, the Court notes that plaintiff also, without Court permission, conceded that he violated the automatic orders and liquidated more than $220,000 in IRA funds during this litigation and, as such, that asset is also not available to the [*30]defendant to help defray her litigation expenses and the line of credit she incurred, in part, as a result. Here, this Court concludes that the need for the custodial parent and children to occupy the home does not outweigh the defendant's need for her share of the sale proceeds of the marital residence (see generally Poretsky v Poretsky, 176 AD2d 713, 574 N.Y.S.2d 796 [2 Dept.,1991]; see also Lauer v. Lauer, 145 AD2d 470, 535 N.Y.S.2d 427 [2 Dept.,1988]).

This Court carefully weighed the potential stability and financial benefits of maintaining the children in the marital residence against any perceived disruption resulting from a move. While the record established that the marital residence provided a certain availability of amenities, including additional room for others — Prof. A. and N. — the Court is mindful that it is not the role of the defendant to contribute to, in effect, the support of persons other than the parties' children with whom the plaintiff chooses to cohabitate. The Court notes that plaintiff's main objection to moving at trial was testimony that the marital residence is spacious and if he is not granted exclusive use and occupancy he will have to move into a less spacious apartment with the children. The fact that the marital residence in this case would most likely provide additional space for plaintiff's girl-friend and the child he fathered with her during this litigation is not a basis to require defendant to incur the financial detriment that would result if she was required to satisfy the line of credit debt without the proceeds from the sale of the marital residence. Nor is the Court required to find that plaintiff's need to remain in the marital residence outweighs the defendant's need for an immediate sale because the marital residence would more easily accommodate a household that includes Prof. A. and N. Those logistics may be a practical one for plaintiff but they are not the financial responsibility of the defendant and the Court will not be bound by plaintiff's unilateral decision to expand his household dynamics during this litigation.

The testimony of the real estate experts offered by both parties clearly detailed on the record that there are a variety of available, suitable housing in the vicinity of the marital residence that would adequately accommodate the plaintiff and the two children at comparable or lower cost to maintaining the marital residence. The record established the availability of suitable housing options that would not substantially or significantly increase travel times to either of the children's schools or to the residence where the defendant lives.^[FN34]

The Court does not adopt plaintiff's contention that, in effect, it is categorically detrimental to the children if they transition to living in a three (3) bedroom apartment instead of the marital residence. The Court also rejects plaintiff's position that there is a detriment or "negative connotation" associated with children completing homework or tutoring in their bedrooms or that ensuring that the children have access to a parlor or library for tutoring or a private bathroom is a definitive consideration of the Court. The Court must consider the totality of the circumstances.

The Court is mindful that the cross-allegations in this matter, and findings in the custody decision, impacted the cost of this litigation; however, the plaintiff must recognize that but for his litigation tactics, including his choices related to spyware and spoliation, the financial [*31]consequences of this litigation would have been vastly reduced. It is possible that had the litigation costs — including all the expert fees related to the extensive litigation surrounding plaintiff's use of spyware and his subsequent attempts to obscure same from the defendant and the Court through spolitation — not been incurred it may not have been necessary for the marital residence to be sold at this time.

The plaintiff, who is the custodial parent of the minor children, shall have the right to buy-out the defendant's equitable share in the marital residence (see Lamparillo v Lamparill, 130 AD3d 580, 12 NYXS3d 296 [2 Dept.,2015][holding that the trial court improvidently exercised its discretion in directing the sale of the marital residence without first offering the defendant the option of retaining exclusive occupancy of the marital residence by purchasing the plaintiff's interest therein]; see also Aebly v Lally, 112 AD3d 561, 977 NYS2d 50 [2 Dept.,2013]).

If the plaintiff is unable to buy-out the defendant or in the event the plaintiff elects not to buy-out the defendant's equitable share in the marital residence by December 1, 2020 the marital residence shall be immediately placed on the market for sale (see generally Aebly v Lally, 112 AD3d 561, 977 NYS2d 50 [2 Dept.,2013]). In the event the parties are unable to agree on a listing price the Court can order an updated appraisal (see generally Bartek v Draper, 309 AD2d 825, 765 NYS2d 893 [2 Dept.,2003]).

Domestic Relations 237 (a), as amended and in effect at that time states, in part, that

[i]n any action or proceeding brought . . . (3) for a divorce, . . . the court may direct either spouse . . . to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in his own name in the same proceeding. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section.

Unlike a pendente lite award of counsel fees, a final order of counsel fees "[i]n the absence of . . . a stipulation, an evidentiary hearing is required so that the court may test the [*32]claims" of the attorney seeking counsel fees regarding the extent and value of the services rendered (Kelly v. Kelly, 223 AD2d 625, 636 N.Y.S.2d 840 [2 Dept., 1996]; see also Pfluger v. Pfluger, 35 AD3d 828, 828 N.Y.S.2d 118 [2 Dept.,2006]; Nee v. Nee, 240 AD2d 478, 479, 658 N.Y.S.2d 440 [2 Dept., 1997]; Burns v. Burns, 193 AD2d 1104, 1105, 598 N.Y.S.2d 888 [4 Dept., 1993]; see also Marocco v. Marocco, 53 AD2d 707, 708, 383 N.Y.S.2d 939 [2 Dept., 1976]; Woessner v. Woessner, 108 AD2d 812, 813, 485 N.Y.S.2d 325 [2 Dept., 1985]).

"An award of reasonable counsel fees in a matrimonial action is a matter within the discretion of the trial court (see Domestic Relations Law § 237; DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 881, 524 N.Y.S.2d 176, [NY 1987]; O'Shea v. O'Shea, 93 NY2d 187, 190, 689 N.Y.S.2d 8, [NY 1999]). In determining a motion for such fees, the trial court must consider, inter alia, the relative financial circumstances of the parties (see Guzzo v. Guzzo, 110 AD3d 765, 973 N.Y.S.2d 265 [2d Dept 2013]; Sotnik v. Zavilyansky, 101 AD3d 1102, 956 N.Y.S.2d 514 [2d Dept 2012]; Chaudry v. Chaudry, 95 AD3d 1058, 945 N.Y.S.2d 110 [2d Dept 2013]; Siskind v. Siskind, 89 AD3d 832, 933 N.Y.S.2d 60 [2d Dept 2011]; Raynor v. Raynor, 68 AD3d 835, 839, 890 N.Y.S.2d 601 [2d Dept 2009])." (Dunn v Dunn, 116 AD3d 997985 N.Y.S.2d 257 [2d Dept 2014]). The Court may look to which party has superior earning power and whether a party engaged in conduct or tactics which unnecessarily prolonged the litigation (see, e.g., Nee v. Nee, 240 A.D.2 478, 658, N.Y.S.2d 440 [2d Dept 1997]).

"The intent of the provision is to ensure a just resolution of the issues by creating a more level playing field with respect to the parties' respective abilities to pay counsel, 'to make sure that marital litigation is shaped not by the power of the bankroll but by the power of the evidence.'" (Silverman v. Silverman, 304 AD2d 41, 756 N.Y.S.2d 14 [1 Dept., 2003], quoting Scheinkman, Practice Commentaries, McKinney's Cons Laws of NY, Book 14, DRL C237:1, at 6, citing O'Shea v. O'Shea,93 NY2d 187, 689 N.Y.S.2d 8 [1999]; see also DiBlasi v. DiBlasi, 48 AD3d 403, 852 N.Y.S.2d 195 [2 Dept.,2008]).

It is well-established that "'[i]n a matrimonial action, an award of attorney's fees or an expert fee is a matter committed to the sound discretion of the trial court'" (Montoya v. Montoya, 143 AD3d 865, 865, 40 NYS3d 151 [2 Dept.,2016] citing Vitale v. Vitale, 112 AD3d 614, 614-615, 977 NYS2d 258).

"In determining whether to award final counsel fees at the end of trial, a more detailed inquiry is warranted" (Duval v. Duval, 144 AD3d 739, 743, 40 NYS3d 535 [2 Dept.,2016]). During this more detailed inquiry the New York State Court of Appeals has ruled that 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" (DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 881, 524 N.Y.S.2d 176, 518 N.E.2d 1168 [1987] ; see also Johnson v. Chapin, 12 NY3d 461, 909 N.E.2d 66 [2009]; see e.g. see also Badawi v. Alesawy, 135 AD3d 793, 795, 24 NYS3d 354 [2 Dept.,2016]; Levy v. Levy, 44 AD3d 398, 771 N.Y.S.2d 386, [2 Dept., 2004], citing DRL 237[a], [d]; see also Kearns v. Kearns, 270 AD2d 392, 393, 704 N.Y.S.2d 627 [2 Dept., 2000], appeal denied 95 NY2d 760 [2000]).

In Duval v. Duval, the Appellate Division, Second Department held that when making a final award of counsel fees "the court is in the best position to determine whether counsel fees should be charged to the moneyed [sic] spouse, or charged to the less moneyed [sic] spouse as an offset against the equitable distribution award ultimately received, or divided between the [*33]parties" (144 AD3d 739, 743, 40 NYS3d 535 [2 Dept.,2016]).

Additionally, it is well-established that the Court may also take into account "... whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation." Chesner, 95 AD3d at 1252 (quoting Prichep, 52 AD3d at 64); see also Black v. Black, 140 AD3d 816, 33 NYS 3d 379 [2 Dept.,2016]; Vitale v. Vitale, 112 AD3d 614, 615 [2 Dept 2013]); see also Morrissey v. Morrissey, 259 AD2d 472, 473 [2 Dept., 1999] (finding that an award of attorneys fees was warranted when the defendant was guilty of stonewalling tactics which resulted in unnecessary litigation); Holbrook v. Holbrook, 226 AD2d 831, 832 [3rd Dept. 1996](finding that an award of attorneys fees was warranted when the plaintiff was the non-monied spouse and when the defendant was less than forthcoming with the resources in several bank account opened during the marriage, causing the plaintiff's counsel to spend time determining which holdings were martial assets, and tracing such assets through the defendant's cryptic transactions); Koons v. Koons (finding that an award of counsel fees was warranted when defendant was found in contempt of a court order by removing the child from the jurisdiction, and the defendant's counsel was not responsible for their clients contempt and their fees as well as the experts fees had been earned prior to defendant's contempt).

According to 22 NYCRR 1400.2, attorneys practicing Domestic Relations Law are required to provide their clients with itemized bills for their services every sixty (60) days as set forth in the Statement of Clients Rights and Responsibilities. Attorneys must also supply clients with a written retainer agreement which includes a provision requiring attorneys to bill client at least every sixty (60) days (22 NYCRR 1400.3). Attorneys who fail to substantially comply with 22 NYCRR 1400.2 and 22 NYCRR 1400.3 are precluded from recovering legal fees from the opposing party (see Montoya v. Montoya, 143 AD3d 865, 865, 40 NYS3d 151 [2 Dept.,2016]; also Rosado v. Rosado, 100 AD3d 856, 995 NYS2d 119 [2 Dept.,2012]). "'The court rules imposing certain requirements upon attorneys who represent clients in domestic relations matters (see 22 NYCRR part 1400) were designed to address abuses in the practice of matrimonial law and to protect the public'" (Rosado v. Rosado, 100 AD3d 856, 995 NYS2d 119 [2 Dept.,2012] citing Hovanec v. Hovanec, 79 AD3d 816, 817, 912 N.Y.S.2d 442 [2 Dept.,2010]. However, when a client does not receive a bill every sixty (60) days but does not object to the timeliness of the invoice the client is assumed to have waived such right (see Rivacoba v. Aceves, 110 AF3d 495, 973 NYS2d 585 [1 Dept.,2013]). Furthermore, "[i]t is the right of the client, not the adversary spouse, to be billed at least every 60 days, and the client may waive that right" (id at 495, citing Petosa v. Petosa, 56 AD3d 1296, 1298, 870 N.Y.S.2d 178 [4 Dept.,2008]).

Defendant asserts that plaintiff is prohibited from seeking any award of counsel fees; however, this Court will not adopt a position that prohibits plaintiff from seeking an award of counsel fees related to the issues of custody, child support and his separate property claims. While the Court struck plaintiff's request for financial relief unrelated to child support in the February 5, 2018 decision, the Court finds that it would be inconsistent with public policy and the statute not to permit plaintiff to assert a claim for counsel fees that relate to his requests for custody and for child support, inasmuch as child support is the right of the children. It is well-established that child support is the right of the child and the Court must ensure that it is not, in effect, bargained away even by agreement of the parties (DRL 240; see also Wakefield v [*34]Wakefield, 84 AD3d 1256, 924 NYS2d 444 [2 Dept.,2011][holding that right to support was the right of the child and the child was not bound by the agreement of the parents]). This public policy is also reflected in the fact that a child support obligation — and an award of counsel fees "in the nature of support" — cannot be discharged in bankruptcy (see genereally In re Williams et al., 208 NY 32, 101 NE 853 [1913]; 11 USCA 523; Ross v. Sperow, 57 AD3d 1255, 871 NYS2d 736 [3 Dept.,2008][holding that the award of counsel fees was, in part, "in the nature of support" and, therefore, excepted from discharge in bankruptcy]; In re Spong, 661 F.2d 6 [2nd Cir. 1981]; Siegel v. Smith, 65 B.R. 668 [WDNY 1986]; In re Auer, 22 B.R. 274 [E.D.NY 1982]; see also generally Adler v Adler, 224 AD2d 282, 638 NYS2d 29 [1 Dept.,1996]).

This Court finds that it would be inappropriate for the Court to deny plaintiff the right to seek counsel fees related to custody or the children's right to receive child support because to do so would, in effect, be potentially detrimental to the children's interests, including their direct financial interest, based solely upon the bad acts of the plaintiff. This would be tantamount to denying the children due process inasmuch as it would limit the children's right to child support based upon plaintiff's bad acts; however, the record before the Court after trial does not delineate what portion of the counsel fees incurred by plaintiff relate to his request for child support and are, therefore, properly before the Court for consideration in any counsel fee award to him (with off-sets for any award of counsel fees to defendant based on his obstructionist tactics and spoliation). As detailed below, an evidentiary hearing will be required on that issue unless the parties stipulate. During that hearing, plaintiff shall also be entitled to present testimony and evidence as to fees paid to the attorney for the children and the forensic evaluator for services rendered in connection with the custody aspect of this litigation.

Plaintiff lists his legal and expert fees incurred in this litigation as follows in his affidavit of net worth dated May 16, 2018: current attorney Coffinas & Lusthaus, P.S., $42,886.45^[FN35] ; T & M Protection forensic computer experts, $160,208.35^[FN36] ; Louisa Floyd, Esq. (attorney for the children), $7,021.00^[FN37] ; court-appointed forensic psychiatrist, $9,040.00^[FN38] ; former attorney Carolyn Byrne, Esq., $90,000^[FN39] ; real estate appraiser, $750.00; process servers, $2,390.00; [*35]transcripts, $5,900.00; Hon. Ariel E. Belen (Ret.) court-appointed special referee on consent, $8,000.00; criminal attorney, $14,000^[FN40] ; federal civil law suit, $142,147.00^[FN41] ; appellate attorney, $79,000.00: TOTAL: $561,342.80.

He also testified that he has promissory note due of $45,000 to his brother in February 2018 (Tr. 7/30/18, pp. 83-84) and an outstanding promissory note of $20,000 due to Ms. Linda K^[FN42] (Tr. 11/08/18, pp. 28-34) and a promissory note in support was entered into evidence, on consent, as defendant's exhibit F-SSS^[FN43] ; $84,321.45 due to the IRS for "back taxes" (Tr. 7/30/18, p. 85)^[FN44] ; as well as two (2) credit cards that "are at their limit, that was to pay for the representation in this phase of the trial, in the financial (Tr. 7/30/18, p. 85).

The Court notes that in considering the plaintiff's obligations on any issue of assessing the applicability of counsel fees the Court must also weigh plaintiff's litigation fees in separate litigations separately from the expenses of this litigation. While plaintiff may be incurring legal fees in Federal law suits and/or criminal actions, those litigation costs certainly do not fall at the feet of the defendant even if those litigations were spawned from plaintiff's actions in this litigation. If the Court were to adopt that position, it would, in effect, place additional financial burden on defendant for the bad acts of plaintiff and it would make defendant the "bank" for plaintiff's expenses in those unrelated actions.

Defendant represents that she has incurred $2,935,693.53 in legal fees and disbursements incurred from October 31, 2014 through June 14, 2018 and that she has a $165,142.96 invoice outstanding (Defendant's exhibit F-UUU in evidence). The record before the Court after trial [*36]does not delineate what of those counsel fees relate to additional legal work required by plaintiff's use of spyware and spoliation. As detailed below, an evidentiary hearing will be required on that issue unless the parties stipulate.

Defendant represents that she paid a total of $543,313.96 in expert fees, in excess of counsel fees incurred, related to plaintiff's use of spyware against her and in the effort required to establish the existence and extent of the spyware after plaintiff engaged in spoliation (Defendant's exhibit F-UUU in evidence). This sum includes payments to her computer expert, to JAMS and to court reporters for the proceedings before the court-appointed, on consent, Special Referee (see order dated ).

In March 2018, plaintiff, pro se, filed an appeal of this Court's decision dated February 5, 2018. During cross-examination, plaintiff testified that his brother paid $75,000 on his behalf to hire appellate counsel — N.M., Esq.— to appeal this Court's written decision dated February 5, 2018 striking plaintiff's pleadings seeking spousal support, equitable distribution and counsel fees, but not the relief relating to child support in the event plaintiff was awarded custody. [Defendant's exhibit F-HHH in evidence] (Tr. 8/03/18, p. 48). Plaintiff testified that he paid $4,000 to the appellate counsel for expenses, which included a private investigator. On cross-examination, plaintiff conceded that he paid $50,000 to the same law firm.

On November 7, 2018, plaintiff testified on continued cross-examination that he had incurred additional counsel fees to his current counsel in this litigation, Coffinas & Lusthaus, "due to the issue with the [defendant's] drinking. It was not covered under the financial" (Tr. 11/07/18, p. 29) and that he also incurred additional counsel fees for the reappointment of the attorney for the children related to that issue (Tr. 11/07/18, p. 29). It is not discernable to the Court from the record after trial what sum of the total counsel fee request by plaintiff relates to those limited issues. The parties shall have the right to address these costs during the evidentiary hearing.

On consent, counsel offered defendant's F-UUU into evidence showing payments made to experts related to the spyware investigation as well as a chart of interim support payments made.

Plaintiff also testified on cross-examination that he received $13,750 monthly from January 2015 until February 2018 (Tr. 8/03/18, p. 54). He testified that he "mingled" the fund he earned from his employment with the support funds he received from the defendant and he could not estimate how much of the money he received in support payments from defendant was used to pay his legal, expert and/or litigation fees in connection with this action, the pending appeal action, the pending Federal Court case or his criminal counsel (Tr. 8/03/18, p. 55).

Defendant contends that she paid, on consent, $125,000 in counsel fees to plaintiff's attorneys during this litigation: $75,000, Carolyn Byrne, Esq. (February 2015); and $50,000, Coffinas & Lusthaus, PC (Julye 2016).

The Court finds that there is an insufficient record before the Court to determine what portion of the total counsel fees sought by plaintiff relate solely to child support. As such, the Court will hold an evidentiary hearing on plaintiff's request for counsel fees related to custody, [*37]his request for child support and claims of separate property together with defendant's right to seek offset of any award of such counsel fees based upon her claim to counsel and expert fees incurred due to plaintiff's use of obstructionist and dilatory tactics including the use of spyware and subsequent spoiliation (see generally Stern v Stern, 282 AD2d 667 [2 Dept.,2001]; see also Singer v Singer, 16 AD3d 666 [2 Dept.,2005]). In Baron v Baron, the Appellate Division, Second Department found that:

[the] Supreme Court improvidently exercised its discretion by declining to award attorney and expert fees to the plaintiff. The Supreme Court focused exclusively upon the size of her equitable distribution and maintenance awards to the exclusion of other factors. Specifically, the Supreme Court failed to consider the defendant's obstructionist and deceptive tactics which prolonged the litigation. These tactics, which included his failures to provide full and timely disclosure that impeded a determination of the valuation of his business and his finances, and failures to appear for his own deposition and for a preliminary conference, were noted with disapproval by the court. The defendant's lack of cooperation led to the Supreme Court appointing a referee to supervise discovery (71 AD3d 807, 810, 897 NYS2d 456 [2 Dept.,2010]).

Nonetheless, the Court is mindful of the well-established case law that when making any award of counsel fees the Court should consider all of the circumstances of a given case, including the financial circumstances of both parties; this consideration is not abrogated entirely even where one party engaged in unprincipaled means to obstruct the litigation (see generally Johnson v Chapin, 12 NY3d 461, 909 NE2d 66 [2009]).

The Court rejects plaintiff's theory that the Court cannot order him to pay any portion of the counsel fees defendant incurred related to his obstructionist tactics because the Court already "sanctioned" him by striking his pleadings for financial relief. Apparently, plaintiff bases this theory on a concept of a "double dip"; however, while striking plaintiff's pleadings for financial relief had a financial impact on him it did not rectify or "make whole" the defendant for the additional and unnecessary counsel fees she incurred related to plaintiff's obstructionist tactics and spoliation. If the Court were to adopt plaintiff's theory, it would ignore entirely the financial consequences of plaintiff's bad acts on defendant. Contrary to plaintiff's contention, the issue of counsel fees is separate from the remedy crafted by this Court in the February 5, 2018 written decision striking his pleadings. The appropriateness of an award of counsel fees to defendant remains one for the Court to consider. Additionally, the case law is clear: the fact that the obstructionist tactics were by the less-monied spouse does not categorically preclude the Court from awarding counsel fees to the monied spouse under appropriate circumstances. Certainly, if that were so, it would establish a precedent whereby counsel fees could only be awarded against monied spouses who engaged in dilatory tactics and it would, in effect, bind the Court's hands to find counsel fees were any less-monied spouse engaged in dilatory or obstructionist tactics.

Here, both parties incurred substantial litigation costs and they both believe they are entitled to counsel fees for clearly delineated reasons. If the parties are unable to resolve this last remaining issue the Court will make an award of counsel fees, if any, to either party — together with any off-sets — only after carefully balancing consideration of plaintiff's obstructionist and deceptive tactics against defendant's clear position as the monied-spouse. The entrenched and [*38]scorched earth approach the parties have maintained during this litigation has, unfortunately, resulted in massive financial consequences. The parties are in a unique position: a stipulation will enable the Court to consider a judgment of divorce, on notice, in short-order while continued litigation on the last remaining issues will further delay both of these parties from moving on with their respective lives and stemming the continued financial consequences of this litigation.

But for defendant's outstanding application for an evidentiary hearing on contempt and the parties' cross-applications for counsel fees, which the record before the Court at this time is inadequate to address, this Court would be prepared to direct that the parties settle a judgment of divorce on notice for submission^[FN45] ; however, this Court cannot sign a judgment of divorce at this time, inasmuch as all ancillary issues have not been resolved (DRL 170[7]). Counsel shall contact the Court by telephone conference on September 27, 2019 to select a date for the evidentiary hearing on those outstanding ancillary issues.

The evidentiary hearing will include defendant's application for contempt; plaintiff's accounting of counsel fees incurred related to child support. The Court will also hear testimony as to what, if any, off-set there should be against any award of counsel fees to plaintiff related to child support is appropriate given the counsel and expert fees defendant incurred related to uncover and establish plaintiff's spyware use given plaintiff's spoliation. The Court will also hear testimony as to accounting of what, if any, of defendant's personal expenses drawn against the line of credit should be her personal responsibility and not considered in any award of counsel fees.

The evidentiary hearing will not be required if the parties stipulate on consent to submit the issue of a final award of counsel fees to the Court and waived their right to an evidentiary hearing on the issue (see Reehill v. Reehill, 181 AD2d 725 [2 Dept 1992]; Pinto v. Pinto, 260 AD2d 622 [2 Dept 1999]) or if the parties reach a consent stipulation resolving their cross applications for awards of counsel fees with due consideration of the applicable case law.

If defendant withdraws her application for contempt and the parties resolve their cross-applications for counsel fees by consent stipulation they shall provide a copy of that stipulation to the Court prior to September 27, 2019 and the parties can then submit a judgment of divorce on notice.

As this Court has stated on the record on numerous occasions: the parties should carefully weigh the efficacy, time and cost to continue this litigation.