Few propositions related to our system of justice could be more certain than that a party who is "able to accomplish the successful suppression of the truth ... occupie[s] a unique position among the litigants in our courts" (cf. Stewart v. Metropolitan Street Railway Co., 72 App.Div. 459,463 [2d Dept. 1902]). In this case defendant, a highly-educated and intelligent individual who has successfully transitioned from a position with a major technology corporation (MTC) to a lucrative career with a leading financial services entity (FinSrv), engaged in an attempt [*2]to control the discovery process in order to defeat plaintiff's claim for a distributive share in his enhanced earnings capacity resulting from his acquisition of an MBA Degree and certain licenses issued by the National Association of Securities Dealers (NASD).^[FN1] That conduct and his evasive and unbelievable testimony at trial completely undermined his credibility and that of the witnesses produced by him, thereby accomplishing just the opposite effect upon the outcome of this matrimonial action than that which he obviously sought.

Plaintiff and defendant, then ages 28 and 31, respectively, were married in the State of New York on April 20, 1992. They have two sons, K.J. and R.J., who were born on November 12, 1998 and January 15, 1995. Both children reside with plaintiff in the marital home (the Home) in a Town in New York, while defendant resides in a rental apartment in the same Town.

Defendant received his early education in India. He was the valedictorian of his High School graduating class, after which he attended college and received a Bachelor of Technology Honors from the Indian Institute of Technology in 1980. That same year he began attending Georgia Institute of Technology, where he maintained a 4.0 grade point average, and from which school he received a Master's of Science Degree in Mechanical Engineering in 1981. From July 1982 through June 1987 defendant attended Princeton University. In October 1984 he was awarded a Master's of Science Degree in Mechanical and Aerospace Engineering. Then, in June 1987, he was awarded a Ph.D. in Mechanical and Aerospace Engineering.

In July 1987 defendant obtained employment with MTC. His first position was titled Staff Engineer. Thereafter, he received several promotions, and held managerial positions before the parties were married. At the time of their marriage, defendant was employed in MTC's Power Visualization Group in Hawthorne, New York. Defendant's wages in 1992, the year of the parties' marriage, were $66,962.03.

Based upon his excellent performance at MTC, in 1993 defendant was chosen for the position as an assistant to Irving Wladawski Berger, an appointment given to only one MTC employee each year. In the Fall of 1994, Bergersponsored defendant's application to the Executive MBA Program at Columbia University (the MBA Program). He was admitted to that program and, [*3]commencing in January 1995, attended classes on Fridays from 9:00 a.m. to 4:00 p.m. for 19 months. In August 1996 he received his MBA with a concentration in finance, having attained honors grades throughout the program. All of the expenses of the MBA Program, including tuition, books and transportation, were paid by MTC.

During his attendance in the MBA Program, defendant was actively seeking a new position in the area of finance. On September 3, 1996, approximately two weeks after completing the MBA Program, defendant resigned from his position at MTC and began working for his current employer, FinSrv. When he left MTC defendant was earning approximately $80,000 per year. His starting salary at FinSrv included a $90,000 annual base salary and a $10,000 bonus.

Defendant was interviewed by several individuals in the Structured Products Group at FinSrv, including Richard Sandulli. The offer to hire him, however, was signed by Jaime Greenwald, the Managing Director of that group. Defendant's first position was in the Structured Products Group, where his duties included creating mathematical models used to price complex derivative products and marketing the group's products.

In 1999, defendant transferred from the Structured Products Group and was appointed a Risk Manager in the Prime Brokerage of the Equity Finance Services Division at FinSrv. Later that year he was promoted to Vice President.

During the five-year period from when he was first hired by FinSrv until 2001, he was directed to take five NASD licensing examinations. He passed each of those examinations and received Series 7, 63, 3, 24 and 55 NASD Licenses (collectively hereinafter "the Five NASD Licenses").

In 2001 defendant was again promoted, to Executive Director. Since 2002, his income from his employment at FinSrv has increased dramatically. He earned $675,000 in 2003, the year this action was commenced. In 2005, the last full year before the action was tried, his income, including his cash bonus of $886,000 and executive compensation of $304,000, totaled $1,350,000.

Plaintiff received her college education at Pennsylvania State University and was awarded a Bachelor's Degree in 1986. After graduation she was hired by MTC and, in 1989, she attended State University of New York at New Paltz. She was awarded a Master's Degree in Physics in 1989. Her 1992 income from MTC was $46,850.18. Over the following years her salary increased to the point where she currently earns approximately $130,000 to $150,000 annually, depending upon the size of the bonus she receives.

In the early years of their marriage, the parties lived a modest lifestyle, dictated in part by their more limited income [*4]and their desire to put some of their earnings into savings. One aspect of that lifestyle was their housing. Specifically, from April 1992 until August 2000, they rented a 1000-square foot, two bedroom townhouse in Fishkill, New York.

In 2000, having saved enough for a down payment and with their joint income having increased, primarily from defendant's advancement in his career at FinSrv, they purchased the Home in both of their names for $782,000. To meet the purchase price, they used $157,000 from marital savings and took a $625,000 mortgage. Between the date of purchase of the Home and the commencement of this action, the monthly mortgage payment was made using marital funds.

As their married life continued, notwithstanding the ever-increasing income received by defendant from his position at FinSrv, their lifestyle remained modest. Although part of the reason for that lifestyle was their continued interest in saving money, a significant factor was the frugal, if not often parsimonious approach taken by defendant, who consistently placed limits on the spending that plaintiff was permitted to do for clothes, food and other items for the children and her.

Over time, their marriage soured. Finally, on December 4, 2003 plaintiff commenced this matrimonial action. Within the following two months, the parties filed cross-motions seeking various forms of pendente lite relief (the pendente lite motions). On March 3, 2004 Justice Mark C. Dillon rendered a bench decision on the pendente lite motions (the 2004 Order). Among the rulings made by Justice Dillon were that defendant would have supervised visitation with the two children and, effective that day, was required to pay child support and maintenance in the sums of $600.00 per week and $2,500.00 per month, respectively. In addition, the 2004 Order obligated plaintiff to pay 100% of the home mortgage and taxes, homeowner's insurance and carrying costs, and apportioned the responsibility for unreimbursed health expenses and other child support add-ons in shares of 25% to plaintiff and 75% to defendant.On January 4, 2005, the parties executed a stipulation resolving the custody issue (the Custody Stipulation). Pursuant to the Custody Stipulation, plaintiff has sole custody of the children, while defendant is entitled to visitation with them, which shall be supervised until that requirement is modified or eliminated by written agreement of the parties, or by recommendation of Dr. Jeffrey Sacks, or upon further order of the Court.

The parties resolved the issue of grounds for divorce on September 20, 2004, at which time an inquest was conducted. Plaintiff was granted a divorce on the ground of cruel and inhuman treatment, but entry of judgment was stayed pending the resolution of the ancillary issues.

The trial of this action commenced on February 2, 2006, and [*5]continued on February 3, 7, 9, 10, 14, 16, 17, and 28, and March 3, 7, 9, 10, 14, 17, 28 and 30. At the conclusion of the trial, a schedule was established for the parties to serve and file their post-trial submissions. That schedule was subsequently adjusted at the request of the parties. With all of the submissions before this Court, it now considers the specific financial issues in dispute. The relevant facts established by the credible evidence presented during the trial, as well as the pertinent stipulated matters, shall be discussed in connection with the Court's analysis of each financial issue.

As a preliminary matter, the Court must address the issue of credibility of the parties and their presentations at trial. The issue comes to the fore in this action because of the manner in which defendant approached his pretrial discovery obligations and endeavored to control the information available to plaintiff and the Trial Court. Most importantly, the approach taken by defendant is of primary significance to the credibility issue here because, "[i]n a nonjury trial, evaluating the credibility of the respective witnesses and determining which of the proffered evidence was most credible are matters committed to the trial court's sound discretion" (Ferraro v. Ferraro, 257 AD2d 596,598 [2d Dept. 1999], lv. denied 93 NY2d 893 [1999]).

Defendant's ultimate goal was simple: to defeat plaintiff's claim to a share in the enhanced earnings capacity (hereinafter "EEC" or "defendant's EEC") generated by the MBA and the Five NASD Licenses (collectively hereinafter "the EEC Attainments"). To achieve that end, he utilized a combination of deception and manipulation during the pretrial discovery phase of the action, and intentionally false and evasive testimony at trial.

The execution of that plan began on January 6, 2004 with the preparation of his first net worth statement (the First NWS) in which he failed to list any of the Five NASD Licenses, notwithstanding that item I(P) called for information concerning "Education, training and skills", which was to "include dates of attainment of degree, etc." (Pl. Exh.51 [emphasis added])^[FN2]. It should have been obvious to defendant that licenses received by him which related to his employment, and were issued by an agency such as NASD, were of the type that were required to be identified in the First NWS.

Any question whether his failure to disclose the Five NASD Licenses in the First NWS was a mere oversight was resolved [*6]against him by his treatment of certain inquiries from Heidi Muckler, CPA/ABV, CFE, CVA, who was the Court-appointed Neutral Financial Evaluator (the Neutral). The first request from Muckler was in the form of a questionnaire that she served upon him titled "LICENSE OR ADVANCED DEGREE CHECKLIST" (Pl. Exh.90, p.1 [hereinafter "the License/Degree Checklist"] [bold, capitalization and underlining in original]). Therein were three items, numbered IX, X and XIII, which asked for "DEGREES/LICENSES/CERTIFICATIONS ATTAINED", prior to and during the marriage, and "ALL PROFESSIONAL ORGANIZATIONS AND/OR REGULATORY AGENCIES PRESENTLY INVOLVED IN AS A MEMBER", respectively (id., p.1-2 [capitalization in original, underlining added]). In addition, item XVII directed defendant to "ATTACH A COPY OF THE MOST RECENT CURRICULUM VITAE" (id., p.3 [hereinafter "CV"] [capitalization in original]).

Had defendant completed the License/Degree Checklist in the form as sent to him without listing the Five NASD Licenses, his deception would have been obvious and undeniable. Hence, he took a different tack by simply creating his own form of questionnaire (the Created Checklist). That form, forwarded to Muckler on March 23, 2004 by defendant's former counsel, stated as its parallel items numbered 9 and 10, respectively, "Degrees attained PRIOR to the marriage" and "Degrees attained DURING the marriage" (Pl. Exh.5, p.1-2 [capitalization in original]). Tellingly absent was any reference to licenses. Defendant attempted to deflect the request for information as to item XIII in the License/Degree Checklist by renaming it "Professional Organizations/Regulatory Agencies" as his item 13, and answering "None", to that item. Finally, defendant merely ignored the demand for his most recent CV, responding to it with the statement: "see above information on education and work experience" (id., p.4). Of course, the information he referred to in the Created Checklist did not include any of the Five NASD Licenses.

Clearly, defendant believed that by answering his own questions with responses as to his college and graduate degrees, and by denying that he was connected with any regulatory agency such as NASD, he could prevent plaintiff from learning about, and having Muckler consider, any of the Five NASD Licenses, especially since he failed to comply with Muckler's demand for his most recent CV. In fact, the ploy almost succeeded, until plaintiff learned for the first time at trial that what had been returned to Muckler was not the License/Degree Checklist, but the Created Checklist.

Obviously convinced that he had controlled the information that could be obtained directly from him, the next prong of defendant's tactical plan was to manipulate the discovery that could be obtained from his employer, and in particular, the information concerning the nexus, if any, between his MBA and the [*7]EEC. This, of course, required the involvement of others from FinSrv, whether knowingly on their part or not.

Defendant's effort to control that information was initiated with his response to a follow-up set of questions served upon him by Muckler in a March 24, 2004 letter to his former counsel (the Five Question Letter). In that letter, Muckler inquired as follows:

"1. How many other executive directors at [FinSrv] have MBA degrees?2. Mr. [J.] states in the checklist that the position does not require an MBA degree but has advanced his career based upon his PhD and MBA. If the position at [FinSrv] did not require the degree why did Mr. [J.] decide to get the degree?3. Is Mr. [J.]'s compensation with [FinSrv] salary and bonus or just salary? If the compensation includes bonus please provide a breakdown between bonus and salary for 1999-2003.4. What was Mr. [J.]'s salary at [MTC] in 1996 prior to receiving his MBA degree and changing employers?5. Would Mr. [J.] have been hired by [FinSrv] if he had not had his MBA? If possible please have someone from [FinSrv] answer this question." (Pl. Exh.28).

Over time, at least some of those questions were answered by personnel from FinSrv.

Unknown to Muckler, however, when she finally prepared her financial evaluation as the Court's Neutral, the response had been entirely shaped by defendant. In particular, he had communicated with present and former FinSrv personnel, alerting them to the position that he was asserting in the litigation, and explaining the type of information that would provide support for that position. Moreover, as amply established by the e-mails offered into evidence at trial, defendant was personally involved in the initial drafting and subsequent editing of the response to the Five Question Letter submitted by FinSrv, having written and re-written the response so as to remove information that would lend credence to plaintiff's claim that there was a nexus between his MBA and his hiring by FinSrv, and between the EEC Attainments and defendant's EEC.

Next, defendant sought to deflect attention from the Five NASD Licenses when questioned about them at his deposition. There, when asked directly whether he had any professional license, he had the temerity to state, under oath: "No, I mean, I have a lot of exams that I pass as part of my job at [FinSrv]. I don't know if they are professional licenses." (Pl. Exh.1, p.98). Pressed about the nature of the tests that he took, he described them as involving "Ethics" and "Compliance, but asserted that: "I don't think they are called licenses" (id., p.98-99). Finally, despite the fact that a blank line was left in his transcript for him to insert "a description of all exams taken in connection [*8]with [his] employment" at FinSrv, he failed to provide any further information (id., p.99). Clearly, defendant knew that his deposition testimony was false, since, as detailed below, he had received numerous e-mails informing him of his responsibility to take the examinations leading to the Five NASD Licenses, in which reference was made to the licenses that were the subject of those examinations.

Finally, at trial, defendant performed the fourth step of his plan, by endeavoring to restrict the relevant information that would be available to this Court. This he did through his evasive responses to questions posed to him, and where all else failed, by simply providing false, or at least misleading, testimony. The most blatant example of the latter conduct was when, in answer to a question from plaintiff's counsel as to the reason he had not included any of the Five NASD Licenses in the Created Checklist, he responded: "I don't think there was any column to list that" (Tr.310).^[FN3] As correctly characterized by plaintiff, defendant "apparently forgot to mention that he had changed the form to remove the reference to licenses'" (Bavero Affirm., 7/25/06, par.11).

Faced with that history of his conduct in this action, as set forth more fully, and quite accurately, in the affirmation of plaintiff's counsel submitted in support of plaintiff's counsel fee application, defendant takes the position that:

"From the beginning, and consistently throughout this litigation, I have provided all information and documents requested by plaintiff's counsel. (I concede that there was some confusion caused by the ambiguity of the requests of Heidi Muckler and my genuine misunderstanding of the label given results of tests admininstered by NASD[)] information which plaintiff's counsel had from plaintiff and the internet in addition to [FinSrv], but such confusion did not delay or impede the discovery process. The accusation made by plaintiff's counsel that I impeded disclosure, or that I improperly influenced [FinSrv] in its answers to inquiries from the Court appointed neutral is untrue." (Def. Affid., 8/15/06, p.7 [emphasis added]).

In fact, it is defendant whose statements are untrue, not plaintiff's counsel.

Throughout this litigation, defendant has engaged in misconduct with respect to his discovery obligations in an attempt to deny plaintiff her equitable share of his EEC, as evidenced by his efforts to: (1) conceal the Five NASD Licenses [*9]from Muckler; (2) dictate FinSrv's response to the Five Question Letter with respect to the nexus between the EEC Attainments and his EEC; (3) deflect attention from the Five NASD Licenses by giving false testimony at his deposition and failing to provide the follow-up information called for at the deposition; and (4) testify falsely and evasively at the trial. That conduct on his part has established beyond all doubt that he will take any steps necessary, including withholding evidence and giving false testimony under oath, to advance his personal goals. And when that approach was finally brought to light, he repeatedly sought to hide behind the excuse that he was confused, or, in the euphemistic terms used by his counsel, that "[his] testimony was credible" but "often, frustratingly literal" (Def. Facts. P.28).

At this stage of the proceedings, the Court is called upon to evaluate the credibility of the parties and their evidentiary presentations. In the final analysis, "[t]he court is concerned with the quality, not the quantity, of the evidence used to support or contradict a given proposition" (see Seltzer v. Roazzi, 6 Misc 3d 1002[A], *2, 800 NYS2d 357 [N.Y.C. Civ. Ct. 2004]).

Here, the Court was presented with the testimony of an individual who prides himself on his intelligence, as evidenced by his offer of proof of his consistent honors grades throughout his education, and his success in the highly-challenging area of risk-assessment that is his specialty at FinSrv. Rather than being someone who is easily confused, defendant is a cunning, detail-oriented individual who simply believed that with his greater intelligence he could deceive plaintiff, her counsel and this Court, without no one ever being the wiser.

Rather than achieving his intended goal, defendant has wrought just the opposite end. Specifically, through his own efforts at controlling and manipulating the evidence to be presented to this Court, he has proven that he is not an individual who may be taken at his word, but rather, he is wholly lacking in credibility. Consequently, in reaching its legal conclusions in this case, as explained below, the Court has rejected the testimony as to the material issues given by defendant unless it was supported by other credible testimony or documentary evidence (cf. Beth M. v. Joseph M., 12 Misc 3d 1188[A], *17, 824 NYS2d 760 {12 Misc 3d 136(A)} [Sup. Ct. Nassau Co. 2006] ["When faced with contradictory testimony in matrimonial actions, as here, "[e]valuating the credibility of the respective witnesses is primarily a matter committed to the sound discretion of the Supreme Court"]).

The first of the ancillary issues to be addressed is plaintiff's maintenance application, as to which the parties' positions could hardly be more disparate. It is plaintiff's [*10]contention that "[t]he statutory factors and their application to the facts of this case [] justify [] an award" of $75,000 per year for a period of ten years, which is an amount that, together with the child support she seeks, "will enable [her] to pay the taxes attributable to the maintenance and just meet the difference between her income and the children's budget" (Pl. Mem., p.25).^[FN4] By contrast, defendant argues that "[i]n light of plaintiff's demonstrated ability to maintain the marital standard of living without any maintenance, and to do so without any vocational rehabilitation because she has never interrupted her career, maintenance is unwarranted" (Def. Mem., p.19).

DRL §236(B)(6)(a) controls the award of maintenance in a matrimonial action. In relevant part that section states:

"Except where the parties have entered into an agreement ... providing for maintenance, in any matrimonial action the court may order ... maintenance in such amount as justice requires, having regard for the standard of living of the parties established during the marriage, whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs and whether the other party has sufficient property or income to provide for the reasonable needs of the other and the circumstances of the case and of the respective parties."

Pursuant to that provision, a court deciding a maintenance application must consider ten designated factors (DRL §236[B][6][a][1]-[10]), together with "any other factor which the court shall expressly find to be just and proper" (DRL §236[B][6][a][11]). Consequently, this Court turns to its review of those factors (collectively hereinafter "the Maintenance Factors"), to the extent that each is relevant to this action.

First, the Court must consider "the income and property of the respective parties including marital property distributed" to each of them (DRL §236[B][6][a][1]). Here, the income of the parties did not differ significantly when they married, with plaintiff and defendant then earning approximately $47,000 and $67,000, respectively. However, as a result of defendant's career change while plaintiff remained at MTC, he is now earning approximately $1,350,000 annually, as contrasted with her earnings of approximately $150,000.

As relates to their property, plaintiff shall receive approximately $2,500,000 in assets as her distributive award, as discussed below. Defendant, however, shall retain more than [*11]$2,000,000 in assets more than plaintiff, including his greater share of his EEC and $650,000 in separate assets, representing bonus payments received by him during the pendency of the action for work performed by him post-commencement.

Although approximately 17% of the assets received by plaintiff are in the form of the equity in the Home, which she shall retain by agreement of the parties, the remaining portion, amounting to in excess of $2,000,000, provides a substantial fund which is available to her for investment purposes. That potential investment income undermines any claim that she requires maintenance in any amount, either for the ten years as sought by plaintiff or any other duration (see Suydam v. Suydam, 203 AD2d 806,811 [3d Dept. 1994], lv. dismissed 84 NY2d 923 [1994] ["We make no award of separate maintenance to defendant, recognizing that the substantial liquid assets received in the equitable distribution will, if conservatively invested, provide a secure income to supplement her earnings"]).

Next, the Court considers "the duration of the marriage and the age and health of both parties" (DRL §236[B][6][a][2]).Here, plaintiff and defendant are ages 43 and 47, respectively, and they acknowledge that they are in good health.

Notwithstanding defendant's efforts to characterize the marriage as being of short duration, because the parties were married for eleven and one-half years at the time of commencement, theirs may properly be considered to be a long-term marriage (see Zuch v. Zuch, 117 AD2d 397,403 [1st Dept. 1986], lv. denied 68 NY2d 611 [1986] [Criticizing Trial Court for finding marriage to be of "brief duration" where "the parties had been married for nine years and, previous to that, had lived together for another three years"]; see also Granade-Bastuck v. Bastuck, 249 AD2d 444,445 [2d Dept. 1998] [Addressing equitable distribution in a long-term marriage where the parties were married eleven years]; cf. Shortis v. Shortis, 274 AD2d 880,881 [3d Dept. 2000] [Eleven-year marriage characterized as "long term" for purposes of cruelty grounds for divorce]). Consequently, the length of this marriage supports an award of maintenance to plaintiff (cf. Hale v. Hale, 16 AD3d 231,234 [1st Dept. 2005] [Awarding durational maintenance where parties "were married only six years, [but] ... live[d] together for an additional eight years"]).

The next three statutory factors are: (1) "the present and future earning capacity of both parties" (DRL §236[B][6][a][3]); (2) "the ability of the party seeking maintenance to become self-supporting and, if applicable, the period of time and training necessary therefor" (DRL §236[B][6][a][4]), and (3) "reduced or lost lifetime earning capacity of the party seeking [*12]maintenance as a result of having foregone or delayed education, training, employment, or career opportunities during the marriage" (DRL §236[B][6][a][5]). It is appropriate for the Court to consider all three factors together because the facts relevant to all of them are, for the most part, the same,

Addressing plaintiff's situation first, it is evident that she is well-educated, having obtained a Bachelor's Degree before she was hired by MTC, and a Master's Degree in Physics while she was employed by that company. Currently, she has a base salary of approximately $129,000 per year, and receives a bonus that has been as high as $20,000 per year within the past five years. While it is undisputed that her income is not expected to increase significantly within the future unless she is promoted to a position as an officer with MTC, an occurrence that she describes as "unlikely" (Pl. Findings, p.18)^[FN5], it is also beyond contention that she will continue to earn at least $130,000 to $150,000 annually in the coming years. Thus, plaintiff does not require any maintenance for rehabilitation purposes, or to become self-sustaining (see Mica v. Mica, 275 AD2d 765,766 [2d Dept. 2000] ["Supreme Court improvidently exercised its discretion when it awarded maintenance to the plaintiff", who was "employed full-time in the same position that he held before and during the parties' marriage", was "self-supporting" and "received a considerable liquid distributive award"]).

Nor is there any evidence that plaintiff lost any career or educational opportunities during the marriage. To the contrary, she has worked continuously at MTC, receiving certain promotions and being enabled to participate in the development of certain patents for her employer. Thus, this factor does not warrant a maintenance award (see Smith v. Smith, 8 AD3d 728,731 [3d Dept. 2004] [In view of Appellate Court's increase of distributive award, Trial Court's denial of husband's maintenance request was not error "considering the age and health of the parties, the duration of the marriage, the ability of each to be self-supporting and the fact that [the husband] did not delay or forego education, training or employment or other career opportunities during the marriage"]).

Defendant's educational history, as cited above, greatly exceeds that of plaintiff. Indeed, he has two Master's Degrees in Mechanical Engineering, a Ph.D. in the same field, and an MBA from a prestigious university. Moreover, as a result of his change of careers after completing the MBA Program, over the period of ten years his income has increased in excess of 1,300 per cent, culminating in his 2005 income of $1,350,000. But while [*13]there is a stark difference in the parties' income, that factor alone is not controlling, especially where, as at bar, there was no evidence that the parties enjoyed anything more than a modest lifestyle (cf. Atkinson v. Atkinson, 287 AD2d 907,909 [3d Dept. 2001] [The "significant disparity in the parties' income (plaintiff earned approximately $131,568 in 1999 whereas defendant only earned approximately $36,400)", taken "alone, however, is insufficient to justify an increased award particularly where ... the only evidence concerning the predivorce standard of living revealed a quite modest lifestyle"]). Consequently, the parties' present and future employment situations do not support a maintenance award to plaintiff.

"[T]he presence of children of the marriage in the respective homes of the parties" is the next factor to be considered by the Court (DRL §236[B][6][a][6]). As noted, pursuant to the Custody Stipulation, plaintiff has sole custody of their two sons.

Here, the children are both school-age, so that they do not require care during the day. Consequently, plaintiff's presence is not required at home during the work day, and she is able to maintain her employment with MTC. Moreover, while both of their sons are experiencing emotional problems which require treatment with professionals, because plaintiff has been able to work for her employer from the Home, to the extent that her presence during the day is necessary to address a particular problem with one or both of the children, she is available to do so.^[FN6]

Under these circumstances, the presence of the children in the Home does not adversely impact plaintiff's continued employment or her ability to be self-supporting. Moreover, because the child support that defendant shall be required to pay will adequately meet their sons' needs, this statutory factor is not one that bears significant weight in plaintiff's favor in determining the maintenance issue (cf. Relf v. Relf, 197 AD2d 611 [2d Dept. 1993], lv. dismissed 84 NY2d 850 [1994] [Affirming maintenance award of $200 per week for three years where, "[a]lthough the wife had prior work experience and the ability to be self-supporting, her custody of the parties' three infant children would preclude her from immediately obtaining full-time employment"]; Poretsky v. Poretsky, 176 AD2d 713,714 [2d Dept. 1991] ["Under the circumstances, we find that a maintenance award of $245 per week for four years is proper and adequate to provide [*14]the plaintiff an opportunity to obtain full-time employment once the parties' children go to school"]).

The seventh factor to be considered is "the tax consequences to each party" (DRL §236[B][6][a][7]). There is no dispute that if maintenance was awarded to plaintiff, it would be taxable income to her and tax-deductible to defendant. Consequently, this factor is one which favors plaintiff's position on the maintenance issue (see Campinell v. Campinell, 220 AD2d 940,940-941 [3d Dept. 1995] [Recognizing "favorable tax consequences [to defendant] of an award of maintenance" as a factor to be considered in determining appropriate award]).

Next, the Court must consider any "contributions and services of the party seeking maintenance as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party" (DRL §236[B][6][a][8]). This is among the most disputed factors in this case, as it pits plaintiff's claims as to her significant contributions to defendant's achievement of his MBA and his career advancement against defendant's assertion that plaintiff made no direct, and only minimal indirect, contributions to his career, and that they shared their family obligations in an essentially equal manner.

As discussed more fully below with respect to equitable distribution, since the most relevant evidence as to this factor was presented through the parties' own testimony, the resolution of their dispute as to this factor turns upon an evaluation of their credibility. Having determined that defendant's credibility has been fatally damaged by his improper efforts to control the discovery process and his false and evasive responses to the questions put to him at trial, the Court concludes that plaintiff's version of the relevant events is the one to be adopted.

Consequently, the Court determines that in addition to making substantial financial contributions using her employment income to assist in supporting the family, plaintiff was the parent who provided the greater amount of care to the children, and by doing so, freed defendant to concentrate upon his studies while he completed the MBA Program, and to dedicate more of his time and efforts to furthering his career at FinSrv. Those contributions favor plaintiff's position as to her maintenance request (see generally DeMarco v. DeMarco, 235 AD2d 1014,1015 [3d Dept. 1997] [In affirming maintenance award, Court recognized that wife "made contributions to the marital partnership in her role as spouse, parent, wage earner and homemaker"]).

In this case, plaintiff is a well-educated individual who has a long-term and secure position with MTC, and who does not [*15]require any period of rehabilitation that would warrant a maintenance award (see De La Torre v. De La Torre, 183 AD2d 744,745 [2d Dept. 1992] ["Maintenance is designed to give the spouse economic independence, and should continue only as long as is required to render the recipient self-supporting"] [internal citations omitted]; see also Granade-Bastuck v. Bastuck, supra , 249 AD2d, at 446 ["[W]hile insuring that the [recipient spouse's] reasonable needs are provided for, [maintenance] should also provide [that spouse] with an appropriate incentive to become financially independent"]). Her significant income from her employment, coupled with the distributive award of approximately $2,500,000 that she shall receive and the investment income that she will be able to generate using the liquid portion of the distributed assets, will readily enable her to provide for her own needs and to replicate the parties' modest pre-separation lifestyle (see Hartog v. Hartog, 85 NY2d 36,50-51 [1995] ["Consideration of the predivorce standard of living is an essential component of evaluating and properly determining the duration and amount of the maintenance award to be accorded a spouse"]; see also Redgrave v. Redgrave, 13 AD3d 1015,1019 [3d Dept. 2004] [Husband's receipt of a "substantial cash distribution" was a factor supporting the denial of his request for maintenance]).

Viewed together, the relevant statutory factors ^[FN7] do not [*16]support an award of maintenance in this case (see Robinson v. Robinson, 256 AD2d 1011,1011 [3d Dept. 1998] [Trial Court did not abuse its discretion in denying maintenance request "[i]n view of the parties' modest preseparation standard of living, plaintiff's evident ability to earn an acceptable wage as a licensed practical nurse ..., and the substantial benefit she acquired as a result of the property distribution, which not only eliminates all of her housing expenses, save utility and maintenance costs, but also confers upon her sole ownership of the chief marital asset"] [internal citations omitted]; see also Lemczak v. Lemczak, 105 AD2d 1157,1157-1158 [4th Dept. 1984] [Trial Court erred in awarding any maintenance where "[wife] was 35 years old and in excellent health at the time of the divorce; she possesse[d] secretarial skills evidenced by her part-time employment and in view of the age of the children, full-time employment would not involve child care costs"]; [cf. Hammack v. Hammack, 20 AD3d 700,704-705 [3d Dept. 2005], lv. dismissed 6 NY3d 807 [2006] ["Where, as the court found, the recipient spouse is healthy, able to rejoin the work force, has not foregone education, has other financial resources, and did not enjoy a lavish or extravagant lifestyle during the marriage, a minimal award of maintenance is not an abuse of discretion"]). Accordingly, plaintiff's application for an award of maintenance is denied.

IV. CHILD SUPPORT

Also in dispute between the parties is the amount of child support to be paid by defendant. It is plaintiff's position that defendant should be ordered to pay $125,000 annually as child [*17]support, a sum that she contends is "based upon the actual needs of the children and the application of the child support percentage to a[n] [amount] lower [than] Defendant's total compensation" (Pl. Findings, p.24). In response, defendant argues that his child support obligation should be established by using a "cap" of $250,000 on the parties' joint income.

DRL §240(1-b) (hereinafter "CSSA") governs child support in a matrimonial action. To determine the appropriate level of child support, the Court performs the "precisely articulated, three-step method" required by CSSA, as explained by the Court in Matter of Cassano v. Cassano (85 NY2d 649,652 [1995]). Under CSSA, the procedure consists of:

(1) The calculation of "combined parental income";(2) Multiplying that figure, up to $80,000, by the applicable percentage for the support of two children under the statute; and(3) If the combined parental income exceeds $80,000 (hereinafter "the statutory cap"), "determin[ing] 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 [DRL §240[1-b][f]] ... and/or the child support percentage" (DRL §240[1-b][c][3]; see Matter of Cassano v. Cassano, supra , 85 NY2d, at 653).

As is evident, the preparatory step in performing this analysis is the determination of each party's income.

Addressing plaintiff first, it was established that she earned the following approximate amounts, including base salary and bonuses, during each of the corresponding years: $147,000 (2005); $123,000 (2004); $162,000 (2003) and $149,000 (2002). Notwithstanding that her base income has remained essentially the same, because her total earned income varies according to the size of her annual bonus, which has been in the range of $5,000 to $20,000 over the past five years, it is appropriate to compute her income using a four-year average, which results in an average of $145,250 per year (see Bragar v. Bragar, 277 AD2d 136,137 [1st Dept. 2000] ["The court properly determined plaintiff's annual income to be $300,000 since that was his approximate average income for the five years preceding the matrimonial action"]; see also Liepman v. Liepman, 279 AD2d 686,688-689 [3d Dept. 2001] [Permitting use of average income because "[f]or child support purposes, a trial court may calculate a parent's gross income by examining his or her most recent [F]ederal income tax return ... and may take into consideration past employment experience and future earning capacity"] [internal quotation marks and citation omitted]; cf. Murphy-Artale v. Artale, 219 AD2d 587 [2d Dept. 1995] ["[W]here the husband's 1992 reported income was found not to be credible, the court was not bound by the actual reported income in applying the formula and instead should have used the husband's actual earning capacity, as determined, for example, by [*18]averaging his reported income for the five years immediately preceding 1992"] [internal citations omitted]).

From their average incomes, the Court must subtract the Social Security and Medicare taxes paid by each of the parties (DRL §240[1-b][b][5][vii][H]) at the applicable 6.2% (26 USC §3101[a]) and 1.45% (26 USC §3101[a]) rates, respectively.^[FN8] Reducing plaintiff's income by her Social Security and Medicare taxes in the amounts of $5,840 and $2,106, respectively, results in a CSSA income of $137,304 per year.

Turning to defendant, the evidence demonstrated that his earnings, including base salary, bonus and executive compensation, were as follows for each of the corresponding years: $1,350,000 (2005); $946,667 (2004); $675,000 (2003) and $475,000 (2002). Like plaintiff, defendant's base salary has not changed significantly during that time, increasing from $130,000 to $160,000. However, the far greater components of his income, consisting of his annual bonus and executive compensation, have increased dramatically, rising from a combined $345,000 in 2002 to $1,190,000 in 2005. Since those components are directly related to the performance of his division at FinSrv and other economic factors that are variable, as with plaintiff, it is appropriate to determine his income for CSSA purposes by averaging it over the same four-year period (see Bragar v. Bragar, supra ; see also Liepman v. Liepman, supra ). Doing so yields an average income of $861,667. Reducing that figure by his Social Security and Medicare taxes in the amounts of $5,840 and $12,494, respectively, results in an annual CSSA income of $843,333.

Having computed the parties' individual incomes, the Court adds them together, resulting in a combined parental income of $980,637. Plaintiff's share of that combined income is 14.0% and defendant's share is 86.0%.

Next, because there are two children to be supported, the applicable CSSA rate is 25%. Multiplying the parties' first $80,000 in combined income by that rate results in a support obligation of $20,000 per year (see Chalif v. Chalif, 298 AD2d 348,349 [2d Dept. 2002]). Plaintiff's and defendant's shares of that amount are $2,800 and $17,200, respectively.

The third and final step under CSSA is the determination of the amount of child support, if any, that should be awarded based upon the $900,637 of combined parental income that exceeds the statutory cap (DRL §240[1-b][c][3] [hereinafter "the Excess [*19]Income"]). In making that determination, the Court is "not bound to apply the statutory percentage, ... to income above the statutory threshold", but "may establish the child support obligation of the noncustodial parent through application of the statutory percentage, the factors set forth in Domestic Relations Law §240[1-b][f], or some combination of the two" (Poli v. Poli, 286 AD2d 720,722-723 [2d Dept. 2001]; DRL §240[1-b][c][3]).

In this case, four of the factors to be considered under DRL §240(1-b)(f) (hereinafter "the paragraph [f] factors") support the view that CSSA should be applied to a substantial portion, but not nearly all, of the Excess Income in determining defendant's child support obligation. The first of these is that defendant's CSSA income is more than six times that of plaintiff (DRL §240[1-b][f][7] ["A determination that the gross income of one parent is substantially less than the other parent's gross income"]). Second, both children have serious emotional problems that require extensive therapy and other care, at significant costs, and plaintiff's pro rata share of those costs will have to be borne through her far lesser income than that of defendant, with no maintenance being paid by him (DRL §240[1-b][f][2] ["The physical and emotional health of the child and his/her special needs and aptitutes"]).^[FN9] Third, notwithstanding the frugal approach taken by defendant to the expenditure of the parties' substantial joint income, it cannot be denied that if the family remained together, the children would have benefitted from defendant's income through the availability of significant monies saved by the parties (DRL §240[1-b][f][3] ["The standard of living the child would have enjoyed had the marriage or household not been dissolved"]; see Matter of Brefka v. Dobies, 271 AD2d 876,878 [3d Dept. 2000], lv. denied 95 NY2d 759 [2000] [CSSA percentage properly applied to total parental income considering, inter alia, "the need to avoid drastic changes in the children's standard of living"]; but cf. Matter of Gluckman v. Qua, 253 AD2d 267,272 [3d Dept. 1999], lv. denied 93 NY2d 814 [1999] ["The mere fact that the children would have enjoyed an enhanced standard of living had the parties remained married does not necessarily mean that the statutory formula should be blindly applied on all income over $80,000"]). Fourth, "the statutory limit on basic child support has not ever, and does not now, reflect the [*20]economic reality of living in Westchester County", where, as a result of the high cost of living, "it simply takes more money to raise a family ... than it might in some other areas of this state" (Clerkin v. Clerkin, 2003 WL 22170145, *3 [Sup. Ct. Westchester Co. 2003]; DRL §240[1-b][f][10] [Court may consider "[a]ny other factors [it] determines are relevant in each case"]).

Similarly, two of the paragraph (f) factors weigh against considering substantially all of the Excess Income for CSSA purposes. One is "[t]he financial resources of the custodial and non-custodial parent, and those of the child[ren]" (DRL §240[1-b][f][1]). Here, as a result of the equitable distribution award being rendered, while defendant shall retain in excess of four and one-half million of dollars of assets, plaintiff shall also receive approximately two and one-half million dollars in cash and property, so that both have substantial financial resources available to them (see Holterman v. Holterman, 3 NY3d 1,14 [2004] ["[A] distributive award to be paid by one parent to the other pertains to the financial resources of the parties and therefore is an appropriate paragraph [f] factor that the trial court may consider when awarding child support"]; see also Carman v. Carman, 22 AD3d 1004,1006 [3d Dept. 2005] [same]). And as noted above, the interest income that plaintiff's liquid assets will generate, together with her employment income and a reasonable child support award, will clearly enable her to provide the necessities for the two children for the duration of their minorities. The second factor is the tax consequences of child support, which are not deductible against defendant's income, so that the greater the amount of the Excess Income included for CSSA purposes, the greater the amount of net income defendant must pay to plaintiff for child support.

Upon weighing these competing factors, the Court rejects defendant's argument that his child support obligation should be based on a maximum joint income of $250,000. Instead, the Court concludes that application of the statutory rate to an additional $320,000 of joint income is warranted (see Kosovsky v. Zahl, 272 AD2d 59,59 [1st Dept. 2000] ["Application of the statutory 17% figure for one child to a marital income of $300,000 was a proper exercise of discretion in determining basic child support, in view of, among other things, a total family income of $550,000 and the lavish standard of living that the child would have enjoyed had the marriage not ended"]; see also Kaplan v. Kaplan, 21 AD3d 993,995-996 [2d Dept. 2005] [Affirming Trial Court's decision applying CSSA rate to $300,000 of parties' combined parental income of $400,000]).

Applying the statutory 25% rate to the additional $320,000 in combined parental income yields an additional child support obligation in the amount of $80,000 annually. Plaintiff's and [*21]defendant's shares of that amount are $11,200 and $68,800 per year, respectively.

Adding plaintiff's shares of the child support obligation as computed above results in a total annual child support obligation for plaintiff in the amount of $14,000. Performing the same calculation for defendant results in a total child support obligation of $86,000 annually.

Establishing defendant's child support obligation in this manner would also be consistent with the level of child support that would be set by reference to the needs of the two children, if that was more appropriate than applying CSSA.^[FN10] As has been recognized in the context of a child support award under parallel provisions of the Family Court Act (FCA §413)^[FN11], "in high income cases, the appropriate determination under Family Court Act §413(f) for an award of child support on parental income in excess of $80,000 should be based on the child's actual needs and the amount that is required for the child to live an appropriate lifestyle, rather than the wealth of one or both parties" (Matter of Brim v. Combs, 25 AD3d 691,693 [2d Dept. 2006], lv. denied 6 NY3d 713 [2006]; see Anonymous v. Anonymous, 286 AD2d 585,586 [1st Dept. 2001], lv. denied 97 NY2d 611 [2002] ["[W]e note that consideration of the child's actual needs with reference to the prior standard of living continues to be appropriate in determining an award of child support on parental income in excess of $80,000"]).

Here, the needs are as stated in plaintiff's updated net worth statement (plaintiff's NWS), dated January 11, 2006 (Pl. Exh.97).Therein, plaintiff set forth the following categories and amounts of annual expenses which relate to the children and [*22]her ^[FN12]:

ExpenseAmount

Housing$58,406

Utilities$ 5,020

Food$ 9,566

Insurance for Nanny$ 591

Household Repairs$ 8,199

Laundry60

Recreational ^[FN13]$ 8,116

Household Help ^[FN14]$25,419

Taxes for Nanny$ 8,500

Beauty Parlor/Barber$ 5,512

Books, Magazines, Newspapers$ 380

Gifts$ 1,230

Church/Synagogue Dues$ 1,535

Total$132,534

Because the children constitute two-thirds of the household as it shall exist upon entry of the Judgment of Divorce, the Court deems it reasonable to attribute two-thirds of those expenses to the children's needs for each category, or a total of $88,356 per year.

In addition, plaintiff's NWS identifies several other types of expenses for the children alone. These are, with the amounts of each: (1) clothing ($1,980); (2) summer camp ($5,203); (3) sporting goods ($2,695); and (4) allowances ($468).

Combining the children's individual expenses with their shares of the joint expenses listed above results in a total expense for the parties' sons in the amount of $98,702 annually. Upon multiplying that total by the 14.0% and 86.0% proportions determined above results in child support obligations to plaintiff in the amount of $13,818 and to defendant in the amount of $84,884. [*23]

Thus, although the Court does not consider this action to fall within the scope of "a high income case"^[FN15], even if it did qualify as such because plaintiff's most recent annual income exceeded one million dollars, basing the child support award on the needs of the parties' sons would warrant an obligation upon defendant in an amount consistent with that determined above using the Court's CSSA analysis.

Using the total support figure arrived at by the CSSA analysis above, defendant is obligated to pay plaintiff child support in the amount of $86,000 per year, or $1654 per week. Accordingly, defendant shall pay child support for the parties' two children in the amount of $1,654 per week, commencing with a payment on Friday, February 23, 2007 and continuing on every Friday thereafter.^[FN16]

Upon the emancipation of the parties' son R.J., or at the latest on January 15, 2016, when he reaches the age of 21, defendant shall only be required to provide support for their son K.J. At that time, the parties' total child support obligation shall be reduced to 17% of their total joint income of $400,000, or $68,000 (see Lee v. Lee, 18 AD3d 508,511 [2d Dept. 2005] [The Trial Court must "provide[] for a method for reducing the [non-custodial parent's] overall child support obligation as each child reaches the age of 21 or is otherwise emancipated"]). Of that amount, plaintiff's and defendant's shares of child support shall be $9,520 and $58,480, respectively.

Therefore, commencing upon the emancipation of their son R.J. or on January 15, 2016, whichever occurs first, defendant's child support obligation shall be reduced to $1,125 per week. Defendant shall pay child support to plaintiff in the amount of $1,125 per week beginning Friday, January 15, 2016, and continuing on each Friday thereafter until their son K.J. reaches [*24]21 years of age or is otherwise emancipated.

For the purpose of determining the amount of retroactive child support arrears owed by defendant, the effective date of the child support order is December 4, 2003, the date that plaintiff commenced this action by filing her summons with notice containing a demand for child support (Sherman v. Sherman, 304 AD2d 744,745 [2d Dept. 2003]; Harris-Logan v. Logan, 228 AD2d 557,557 [2d Dept. 1996]). Here, a two-part analysis is required.

First, the Court notes that there was no child support order in effect in this action from December 4, 2003 until March 3, 2004, the latter being the effective date of the 2004 Order. Consequently, for that thirteen-week period the arrears are set in the amount of $21,502 (13 weeks x $1,654 per week).^[FN17]

Next, defendant has paid child support at the rate of $600 per week pursuant to the 2004 Order from March 3, 2004 to the date of this Decision and Order.^[FN18] For those 153 weeks, he paid $1,054 per week less than the amount awarded by this Court. In addition, for the two-week period between the date of this Decision and Order and the date of his first payment of $1,654 per week, he shall also have paid $1,054 per week less than the amount awarded by this Decision and Order. Thus, his retroactive obligation for the period from March 3, 2004 to February 23, 2007 is $163,370 (155 weeks x $1,054 per week).

The total of these two retroactive amounts of child support arrears is $184,872. Those arrears shall be included in the Court's adjustment summary, as set forth below.

Pursuant to DRL §240(1-b)(c)(4)-(7), certain additional child-related expenses shall be paid in proportion to the parties' CSSA incomes. To the extent that each of them addresses these statutory add-ons, the parties do not seek to vary from the statutory formula for determining their pro-rata shares, but merely differ in their views of what their shares should be as properly computed under CSSA. In particular, plaintiff asserts that she and defendant should bear these expenses in proportions of 9% and 91%, respectively, while defendant urges the Court to assign them respective shares of 20% and 80%. Because the Court has determined that the plaintiff and defendant earned 14.0% and 86.0, respectively, of their combined parental income under CSSA, those proportions shall be applied with respect to each of the statutory add-ons.

"Where the custodial parent is working, ... and incurs child care expenses as a result thereof, the court shall determine reasonable child care expenses and such child care expenses, where incurred, shall be prorated in the same proportion as each parent's income is to the combined parental income" (DRL §240[1-b][c][4]).

Because plaintiff is employed, commencing as of the date of entry of this Decision and Order, any child care expenses that she incurs for the parties' sons shall be paid in shares of 14.0% by her and 86.0% by defendant.

Beginning on March 1, 2007 plaintiff shall serve defendant with copies of all bills for child care expenses incurred in the previous month.^[FN19] By no later than March 20, 2007, defendant shall pay plaintiff 86.0% of the total of those bills. That same procedure shall be followed each month until both children are emancipated or have reached their 21st birthdays, whichever occurs first.

DRL §240(1)(d) provides that "[t]he cost of providing health insurance benefits ... shall be prorated between the parties in the same proportion as each parent's income is to the combined parental income". Here, based upon plaintiff's proposal, which is not opposed by defendant, she shall be the party responsible to provide health insurance for the two children, which she currently has available to her through her employment (Pl. Findings, p.22). In the event that any contribution toward the cost of that insurance is required by her employer, plaintiff and [*26]defendant shall pay 14.0% and 86.0% of the cost of that health insurance, and plaintiff shall obtain payment of defendant's share of that cost by following the bill presentation and payment procedure set forth above with respect to child care expenses.

In addition, in the same proportionate shares the parties shall be responsible for all uncovered and unreimbursed medical, dental, optical, opthalmological, therapy and prescription drug expenses (DRL §240[1-b][c][5]). The parties shall follow the same procedure for obtaining payment from one another for their respective shares of these expenses as set forth above with respect to child care and health insurance expenses.

Finally, as to the child-related expenses, plaintiff asks that various educational and extracurricular expenses be paid by the parties on a pro rata basis. This application, which is not opposed by defendant, is granted (see DRL §240[1-b][c][7]).

Therefore, the parties shall share responsibility for all of the educational and extracurricular activities of their two chidren, including, but not limited to, lessons, tutors, camp and after-school activities and sports activities, in their respective 14.0% and 86.0% proportions. As to those expenses, commencing March 1, 2007, the parties shall follow the same procedure as set forth above with respect to child care expenses.

Neither party seeks any relief as to their sons' future college expenses. Moreover, imposing any obligation upon either of them at this time would be premature, in view of the facts that their sons are only 12 and 8, neither is attending college, and "[t]here was no evidence as to [either child's] academic interest, ability, possible choice of college, or what his expenses might be" (Tan v. Tan, 260 AD2d 543 [2d Dept. 1999]).

The parties have, however, addressed their sons' college education expenses in part, by establishing seven custodial accounts (collectively hereinafter "the Custodial Accounts"), which have the balances reflected below as of the trial of the action ^[FN20]:

CHILDACCOUNTBALANCE

R.J.New York College Savings$25,170

R.J.FinSrvUGMA$ 1,600

R.J.Vanguard UTMA 5823$91,253

R.J.Hudson Valley UGMA 0400$7 [*27]

K.J.New York College Savings$24,166

K.J.Vanguard UTMA7419$29,815

K.J.Hudson Valley UGMA 1520$12

As the parties agree, the Custodial Accounts "are intended by the parties to be used for the children's college expenses" (Stip., par.34).^[FN21]

Based upon their further consent, as expressed in their Stipulated Facts, the Court directs that plaintiff and defendant retain the Custodial Accounts intact during each child's minority and use the funds in the accounts solely for each child's college expenses. In addition, it is ordered that only the parties shall be named as custodians of the Custodial Accounts, but upon their written agreement, they may change the designated custodian of any or all of the accounts to the name of either plaintiff or defendant alone.

Plaintiff also argues that "[i]n order to secure the Defendant's obligation to pay child support, spousal support and [her] distributive award [], the Defendant" should be required to "maintain in full force and effect the standard death form of life insurance in the sum of three million five hundred thousand dollars for the benefit of [her] and the [] children" (Pl. Findings, p.22-23). Defendant does not address this application.

As has been recognized, "while Domestic Relations Law §236(B)(8)(a) empowers the court to order a party to purchase such a policy for the benefit of another, the statute does not mandate that such provision be made" (Grenier v. Grenier, 210 AD2d 557,559 [3d Dept. 1994]). Nevertheless, in a case such as this one, where defendant's age, employment and income should make it relatively easy for him to procure a substantial life insurance policy, and he is obligated to make child support payments and a distributive award to his spouse, an order requiring him to insure his life is warranted (see Holterman v. Holterman, 307 AD2d 442,443 [3d Dept. 2003], affd. 3 NY3d 1 [2004] [Requiring husband "to maintain $500,000 of life insurance, with [wife] as the primary beneficiary, terminat[ing] upon [husband's] completion of his three obligations to pay the distributive award, child support and maintenance"]; see also Friedman v. Friedman, 216 AD2d 204,205 [1st Dept. 1995] [Trial Court properly ordered obligated spouse to provide life insurance "which serv[ed] as discretionary security-type financial protection'"] [internal citation omitted]).

Considering the amount of child support that defendant must pay and the fact that his obligation to do so will continue for [*28]more than a decade, as well as the almost two million dollars that he must pay to plaintiff as her distributive award, it is appropriate that he should provide life insurance coverage in the total amount of $2,500,000.^[FN22] Therefore, within thirty days of the date of entry of the Judgment of Divorce, defendant shall obtain a policy or policies insuring his life with an aggregate face value of not less than $2,500,000, which shall name plaintiff and the parties' children as beneficiaries. Of that amount of coverage, one-half shall be for the benefit of plaintiff alone, as security for the distributive award. The other half of the coverage shall be security for defendant's child support obligation, and plaintiff shall be named as trustee for the children as to that portion of the coverage.

Defendant shall maintain that life insurance until he has fully satisfied his child support and distributive award obligations as established by this Decision and Order and the Judgment of Divorce that shall be entered. By no later than 60 days after the date of entry of the Judgment of Divorce, defendant shall serve plaintiff with a copy of the policy or policies that he has obtained in order to satisfy this obligation.

The parties have numerous assets that are subject to equitable distribution claims, which are identified in their Stipulated Facts and addressed, in part, in their post-trial submissions. These include the Home, bank, investment and retirement accounts, employment-based stock options, the proceeds of defendant's 2003 bonus paid to him in 2004 (the 2003 Bonus), their automobiles, and defendant's enhanced earnings capacity, if any, that derived from the EEC Attainments.^[FN23] They have agreed to the value and the distribution of most of these assets, as set forth in their Stipulated Facts. As a consequence, although the Court must determine the valuation date for their agreed-upon equal distribution of the value of the Home and the manner in [*29]which the 2003 Bonus is to be divided, the only asset that requires an equitable distribution analysis is the EEC.

As both parties recognize, the enhanced earnings capacity resulting from a degree or license acquired during a marriage is an asset that is marital property which is subject to equitable distribution in a matrimonial action (O'Brien v. O'Brien, 66 NY2d 576,586 [1995]). Included in the type of attainments which will trigger an enhanced earnings capacity distribution are an MBA Degree and an NASD License (see Schiffmacher v. Schiffmacher, 21 AD3d 1386,1387 [4th Dept. 2005] [MBA]; cf. Spence v. Spence, 287 AD2d 447 [2d Dept. 2001], lv. dismissed 97 NY2d 725 [2002] [Holding that the increased earning capacity attributed to the husband's MBA and NASD Series 7 and 63 Licenses was not subject to equitable distribution because they were earned before the marriage]).

Nevertheless, to succeed upon a claim of entitlement to a distributive share of a spouse's EEC, it must be proven that the particular degree, license or other attainment resulted in some enhanced earnings capacity (see Pudlewski v. Pudlewski, 309 AD2d 1296,1297 [4th Dept. 2003] [Rejecting plaintiff's claim to a share of the value of the MBA degree obtained by defendant during the marriage because "[t]he record support[ed] the court's determination that the MBA degree did not enhance defendant's earning capacity"]). Here, that issue was the one which consumed almost the entirety of the trial presentation, and is the one most sharply disputed by the parties. "Hence, the preeminent issue here is whether there was sufficient evidence to conclude that [either of] the [EEC Attainments] under consideration increased [defendant]'s earning capacity", because "[o]nly then must [the Court] determine whether [plaintiff]'s efforts and contributions thereto entitled her to an equitable portion thereof" (Halaby v. Halaby, 289 AD2d 657,659-660 [3d Dept. 2001]).

In this case, the evidence at trial established the following: At some point in 1994 defendant decided to pursue an MBA, based upon his concern about downsizing at MTC and his desire to earn a more lucrative income. Following his prestigious assignment with Berger at MTC, he succeeded in obtaining sponsorship for admission into the MBA Program and, shortly thereafter, he was accepted into the program.

For the next nineteen months, defendant worked at MTC while attending classes at Columbia all day each Friday. Among the classes that he took were those involving business finance, international finance, marketing, debt markets, investment banking, options and derivatives. Toward the end of the program, he prepared resumes which he sent to several major financial [*30]institutions, including FinSrv.^[FN24] In those resumes, defendant emphasized his "Concentration in Finance" (see e.g. Pl. Exh.12, p.1), which his own witness, Sandulli, described as being: "[] specific to the financial industry. It would be taking courses in, for example, corporate finance, could be taking courses in options and futures, could be taking courses in marketing. Finance is typically much more geared towards people who plan on making a career in the finance industry." (Tr. 2875 [emphasis added]).

As noted, defendant interviewed with several different individuals for a position with FinSrv in its Structured Products Group, including Sandulli, who claimed to have been the person who actually made the hiring decision, notwithstanding defendant's concession that Jamie Greenwald, who was then Sandulli's supervisor, "was the one who basically hired me" (Tr. 164). Although Sandulli went to great lengths during his testimony to minimize the significance of defendant's MBA in the hiring equation, he grudgingly admitted that the MBA made defendant "a more attractive candidate" (Tr.2764). Moreover, defendant conceded that the MBA "add[ed] to his skills set" (Tr.65), that FinSrv maintained a program to recruit employees who possess MBAs (Tr.149-150), and that the courses that he took in the MBA Program were helpful to him in obtaining his position at FinSrv (Tr.925-926).

As further noted, within two weeks after completing the MBA Program, wholly paid for by MTC, he left his former employer to begin working for FinSrv. In his first position at FinSrv, in the Structured Products Group, defendant was involved in creating complex financial models that assisted in analyzing the risks associated with certain types of transactions. That aspect of his work put to use, to a significant extent, his mathematics [*31]background obtained during his pre-marital pursuit of Master's and Doctoral Degrees in Mechanical and Aerospace Engineering.

His work in that position also encompassed marketing some of that group's financial products. Indeed, obviously concerned that the marketing aspect of his work could not be tied in any manner to his education except for the MBA Program, defendant struggled mightily at trial to limit the description of his involvement in the marketing of his group's products.

For example, when confronted with a resume downloaded from the parties' computer by plaintiff, in which his work for that group is described as being: "Responsible for structuring and marketing tax, regulatory and accounting solutions using derivatives and synthetic convertible securities" (Pl. Exh.63 [emphasis added]), defendant testified that: "I don't recall using this [document] or preparing this" (Tr. 128). Defendant's testimony notwithstanding, what is most telling is the remarkable similarity between some of the language found in that resume and the Created Checklist (Pl. Exh.5). In the resume, in describing his position as "Executive Director, Head of Market Risk" in the "Prime Brokerage, Equity Financing Services", he stated in relevant part: "Engage in frequent dialog with hedge fund managers to ensure that the leverage provided by [FinSrv] is sufficient to meet their return targets and at the same time is consistent with the risk in the portfolio" (Pl. Exh.63, p.1 [emphasis added]). That language is almost verbatim to that used by him in the Created Checklist where, in describing his work as "Executive Director & Risk Manager, U.S. Equity Financing Services", he stated in relevant part: "Responsible for maintaining relationships with hedge fund managers to ensure that the leverage provided by [FinSrv] is sufficient to meet their return targets and at the same time is consistent with the risk in the portfolio" (Pl. Exh.5, p.3 [emphasis added]).

Further proof of his marketing role is an e-mail that he admitted (Tr.201) sending to Craig Abruzzo, FinSrv's counsel, while addressing the Five NASD Licenses, in which he stated in a parenthesis that he "took [the licensing examinations] while in structured products seeling [sic] to clients" (Pl. Exh.67). Finally, that he was engaging in marketing his group's products is evidenced by a memorandum sent to him on May 2, 1997 by a Managing Director/Principal identified therein only as "G. Altomare" concerning the requirement that he take and pass the Series 3 License examination. In that memorandum, defendant's job function is described as: "structuring and marketing products (options, futures, exotic options and other hedging solutions) to insurance companies" (Pl. Exh.22 [emphasis added]).

In September 1996 defendant was told that he was required to pass the examination for a Series 7 License. That examination, which he took and passed on February 3, 1997, tested knowledge [*32]of, inter alia, derivative products and options, both of which were areas that he studied in courses in the MBA Program.

The very next day, on February 4, 1997, Eleanor Sanossian of FinSrv's Legal and Compliance Department sent a memorandum to defendant informing him that he was identified as someone who was required to take the Series 63 License examination, which was the Uniform Securities Agent State Law Examination. Defendant also passed that examination. And later that year, again at his employer's direction, plaintiff also successfully took the Series 3 License examination, which related to commodities futures.

Finally, in May 2001, he was required by FinSrv to take the Series 24 and 55 License examinations. As explained in a memorandum sent to him, under NASD and New York Stock Exchange rules, it was mandatory that he take the Series 24 test "to obtain the necessary registrations for managers in a trading, investment banking or research position" (Pl. Exh. 69A). Defendant came within the class of managers required to possess a Series 24 License because prior to that date he was supervising the daily trading activity of the Prime Brokerage Execution Desk (Pl. 70). In fact, he conceded that he required the Series 24 and 55 Licenses to perform particular tasks that he was asked to do by his employer.

In the years since 2001 and through the date of commencement of this action, defendant has excelled in his position and received promotions with increased responsibilities. And of course, his income has dramatically increased, with the obvious potential that he shall earn a seven-figure income for the foreseeable future.

To decide whether either of the EEC Attainments, i.e., the licenses or the MBA, are marital property subject to plaintiff's equitable distribution claim, the Court must determine if there is a sufficient connection between those attainments and the spectacular increase in defendant's earnings capacity (see Halaby v. Halaby, supra , 289 AD2d, at 659-660). In an effort to defeat plaintiff's claim, relying upon one of three definitions of the term "nexus" from the Oxford Dictionary, i.e., "the central and most important part", defendant contends that plaintiff has failed to prove that either his MBA or the Five NASD Licenses "were the most central consideration in the hiring decisions" (Def. Conc., p.4).^[FN25] Plainly, defendant's view of the necessary connection between an attainment and an enhanced earnings capacity is too narrow.

There is little specific guidance from appellate decisions [*33]as to the degree of "nexus" that must exist between an attainment during marriage and a party's enhanced earnings capacity, with most reported decisions stating only the conclusion as to whether the requisite showing has been made (see e.g. Pudlewski v. Pudlewski, supra , 309 AD2d, at 1297 ["The record supports the court's determination that the MBA degree did not enhance defendant's earning capacity"]). Nevertheless, it appears that what is required is less than the "central" role urged by defendant and more than a mere possibility. Rather, this Court concludes that to establish the requisite "nexus" what must be shown is that the attainment is an element in the enhancement of the earnings capacity, i.e., that it is a relevant factor in bringing about the EEC ^[FN26] (see Murtha v. Murtha, 264 AD2d 552,553 [1st Dept. 1999], lv. dismissed 95 NY2d 791 [2000] ["[P]laintiff would certainly not have expended the considerable time, money and effort involved in obtaining the CFA if it were not a highly desirable and valuable professional credential"] [emphasis added]; but cf. West v. West, 213 AD2d 1025,1026 [4th Dept. 1995], lv. denied 1995 WL 350161 [4th Dept. 1995], lv. dismissed 86 NY2d 885 [1995] ["We agree with the court that plaintiff offered no evidence to lead to a legal conclusion that the undergraduate degree was the sine qua non for the significant [*34]advancement of [defendant]'"]).^[FN27] Weighed against that standard, plaintiff has established a sufficient nexus to entitle her to a share of defendant's enhanced earnings capacity.

Here, defendant's undergraduate and post-graduate education were in the areas of engineering, and provided him with no background for the work he has performed at FinSrv, with the exception of the formulation of mathematical models in risk assessment. He was employed at MTC in a position wholly unrelated to the finance industry for nine years, toward the end of which period he decided upon a change of careers. He attended an MBA program at a prestigious university and within two weeks of his graduation, he was offered a position at FinSrv. As plaintiff admitted, the courses that he took in the MBA Program helped him to obtain that position. FinSrv viewed that background similarly, since Sandulli acknowledged that it made defendant a more attractive candidate.

Once at FinSrv, his MBA studies were of significant use. For example, he became involved in marketing some of the products that were created by the Structured Products Group. Prior to that time, he was not involved in any type of marketing work. However, marketing was one of the areas that he studied while in the MBA Program. In addition, his work in the Structured Products Group and the Risk Management Group required knowledge of various forms of financial products, including options and derivatives, which he learned about for the first time while at Columbia. Moreover, that same knowledge was beneficial to him when he studied for, and took, some of the examinations resulting in his obtaining the Five NASD Licenses.

Certainly, there was no requirement that an individual seeking the position for which defendant was first hired by FinSrv, or moving up to the higher positions to which he was promoted, had to possess an MBA. And while this is a factor to be considered by the Court, it is not controlling on this issue (see Murtha v. Murtha, supra , 264 AD2d, at 553 [Concluding that enhanced earnings capacity was marital asset subject to distribution notwithstanding that plaintiff's CFA certification "may not actually [have] be[en] a prerequisite for employment and/or advancement in [his] field of endeavor"]). Nevertheless, [*35]the significance of an MBA to FinSrv and to the work that defendant has performed for that entity is demonstrated by the facts that: (1) FinSrv maintains a program for recruiting MBA graduates from several prestigious universities, including Columbia; and (2) when defendant sought to hire an individual for one of his former positions at FinSrv he expressed a preference for someone who possessed an MBA. Most importantly, the MBA was a significant asset to this particular defendant in the successful performance of his duties which, in turn, has catapulted him up the corporate ladder at FinSrv, resulting in his markedly greater income.

Similarly, the Five NASD Licenses were a relevant factor in defendant's enhanced earnings capacity. In this regard, it was conceded by defendant that he was required to take and pass the five examinations as part of his work responsibilities at FinSrv.

Thus viewed, there can be no doubt that the MBA and the Five NASD Licenses are elements which have resulted in defendant's enhanced earnings capacity (see Murtha v. Murtha, supra , 264 AD2d, at 553 (CFA certification was subject to equitable distribution where husband was "promoted from being a mere member of the Asian sales desk to the managerial ranks, and his compensation more than doubled", it being observed that "[he] would certainly not have expended the considerable time, money and effort involved in obtaining the CFA if it were not a highly desirable and valuable professional credential"]; cf. Halaby v. Halaby, supra , 289 AD2d, at 660 [No distribution of enhanced earnings capacity where there was "[n]o [] evidence support[ing] defendant's contention that the fellowship enhanced plaintiff's earning capacity or contributed in some way to the position he ultimately obtained"]). Accordingly, plaintiff is entitled to a distributive share of defendant's EEC.

Having reached that conclusion, the next issue to be resolved is the value of the EEC. The typical methodology for that valuation, as explained by the Court in A.Z. v. C.Z. (4 Misc 3d 1029[A], *4, 798 NYS2d 342 {4 Misc 3d 1014(A)} [Sup. Ct. Nassau Co. 2004]), is that "the baseline earnings (after tax earnings of a person without the degree/license) are deducted from the topline earnings (after tax earnings of a person with the advanced degree/license)", after which "[t]he yearly earnings differential is projected over the expected worklife and reduced to present value to calculate the total value of the enhanced earning capacity."

In this case, defendant's EEC was calculated by two financial experts: Muckler, who was the Neutral, and Gary M. Karlitz, CPA, ABV, CBA, ASA, of the firm of Citrin Cooperman & Company, LLP, who was retained by plaintiff. Muckler and Karlitz both provided values for defendant's EEC, but while Karlitz [*36]testified that there was a nexus between the EEC Attainments and defendant's EEC, Muckler offered no opinion as to the nexus issue. They also differed substantially as to their valuations of the marital portion of the EEC, with Muckler offering values ranging from $172,000 to $2,900,000, and Karlitz valuing it at $4,300,000.

Plaintiff argues in favor of Karlitz' valuation, contending that Karlitz has greater experience in this area, that his opinion was more comprehensive and addressed all relevant issues and that, unlike that of Muckler, it "suffered from no [] ambivalence or lack of certainty", while at the same time it gave the benefit of several favorable assumptions to defendant (Pl. Mem., p.21). Defendant attacks both experts' valuations, although taking the "fallback" position that of the two, Muckler's is the more accurate.

"It is well settled that the Supreme Court has broad discretion in accepting or rejecting all or part of any expert testimony" (Madonna v. Madonna, 265 AD2d 455 [2d Dept. 1999]). In this case, the Court finds that both Muckler and Karlitz gave credible testimony concerning their respective analyses of defendant's EEC. However, the Court concludes that Karlitz' valuation is the more accurate of the two, based upon his far greater experience in performing such valuations and testifying about them, the manner in which he conducted the analysis in this case, and the information that was considered by him (see Ferraro v. Ferraro, supra , 257 AD2d, at 598 [Recognizing "credibility of expert witnesses and their valuation techniques" as appropriate factors to be considered by fact-finder in determining value of a business]).

Here, Karlitz reached his conclusion as to the value of defendant's EEC by utilizing his 2003 salary of $120,000 as the baseline and only the $588,750 cash component of that year's income as his topline earnings, thereby giving a substantial benefit to defendant in the computation. This was typical of the approach taken by him in his analysis, which is plainly and concisely explained in his report, as follows:

"To be conservative, we did not assume any growth rate in salary for inflation, and accordingly omitted the same from the discount factor. In arriving at a discount factor, we considered that we chose Mr. [J.]'s 2003 top line earnings to be $588,750 without applying a growth rate which we believe will be substantial in the coming years. We further advanced the conservative nature of our findings by selecting baseline earnings of $120,000 notwithstanding that the central tendency of Mr. [J.]'s baseline earnings was more than $10,000 lower. We have accordingly, selected a discount rate of 3.0% as the two earnings streams selected were both eminently conservative and further risk, in the form of a higher discount rate, would be [*37]duplicative." (Pl. Exh. 80, p.9).

Upon the completion of his analysis, Karlitz concluded that the value of defendant's EEC is $4,300,000. Because the Court finds that Karlitz was entirely credible and that his analysis was properly performed, it adopts that figure as the value of defendant's EEC.

That computation, however, does not terminate the relevant analysis that this Court must conduct. Rather, there is a need to determine the proper coverture factor, i.e., the percentage of the EEC that is attributable to the EEC Attainments rather than defendant's pre-marital education and degrees (see Vora v. Vora, 268 AD2d 470,471 [2d Dept. 2000] ["Supreme Court erred in failing to apply a coverture fraction' to the enhanced earning valuation to account for the portion of the defendant's medical education and training completed before the marriage and after the commencement of the instant action"]).

Once again, the parties' positions are at opposite poles. Plaintiff attacks defendant's request "that the Court [] make an economic determination of how much of the value of the EEC is attributable to [defendant's] pre-marital PhD and how much is attributable to his post-marital MBA/licenses", asserting that "[f]or the Court to engage in the speculation suggested by defendant[] [] would now require a court to identify and assess every educational course, life experience, seminar, [and] independent study from kindergarten to the moment of valuation", an "exercise" that she maintains "is [not] prudent, possible or warranted" (Pl. Mem., p.21-22). By contrast, defendant argues that "[u]nder the circumstances of this case [a 10%] coverture must be applied" because "[t]he evidence established that the skills acquired by [him] in his masters and PhD. programs were the sine qua non of his employment at [FinSrv] not the techniques from the Executive MBA program" (Def. Conc., p.5 [underlining in original]).

Contrary to plaintiff's contention that the position taken by defendant is "completely unsupported by any recognized valuation methodology or legal authority" (Pl. Mem., p.21), the theory of coverture has been consistently applied in cases where some identifiable portion of a party's EEC was attributable to pre-marital educational or professional accomplishments (see Cozza v.

Colangelo, 298 AD2d 914,916 [4th Dept. 2002] ["Because plaintiff earned one fifth of the credits toward [her college] degree prior to the marriage, only 80% of [her EEC] ... [was] subject to equitable distribution"]; see also Vora v. Vora, supra , 268 AD2d, at 471 [Appellate Division determined that "defendant [*38]achieved 22.6% of his medical education and training during the marriage" where the proof established that "[he] was a practicing physician in India for several years before coming to the United States, and completed the last two months of his residency in the United States after the commencement of th[e] action"]; cf. Hickey v. Hickey, 256 AD2d 383,384 [2d Dept. 1998] [Action remitted for Trial Court to determine, inter alia, "the number of credits earned by the plaintiff toward [her nursing] license before the marriage, and to recalculate [] the defendant's share of the license"]). Plaintiff has offered no meritorious reason why an appropriate coverture determination should not be rendered in this case.

Indeed, Karlitz offered an opinion as to the coverture issue, as set forth in his report as follows:

"The marital achievement component of Mr. [J.]'s MBA and Licenses was measured by dividing the time he attended MBA school and completed his licensing exams while married over the total time he attended MBA school and studied for the licensing exams. Mr. [J.] commenced and completed all of his MBA and Licenses studies during his marriage." (Pl. Exh. 80, p.9).

In sum, it was Karlitz' view was that a 100% coverture factor should be applied to defendant's EEC.

Although this was the only opinion offered on the coverture issue, the Court does not find it persuasive, and is not bound by it (cf. Siegel v. Siegel, 132 AD2d 247,251 [2d Dept. 1987], appeal dismissed 71 NY2d 1021 [1988], lv. denied 74 NY2d 602 [1989] [Rejecting opinion of both parties' financial experts as to value of business as unreliable]). Consequently, the Court rejects plaintiff's assertion that 100% is the proper coverture factor in this case (see Pachomski v. Pachomski, 32 AD3d 1005,1006 [2d Dept. 2006] [Evidence did not justify court's use of coverture factor of 100% in determining marital portion of defendant's teaching license where, "to meet licensing requirements, the defendant was required, inter alia, to obtain a bachelor's degree and several additional teaching credits"; "[w]hen the parties were married in 1985, the defendant had already received her college degree"; and "[d]uring the marriage, she completed the additional classes required for licensure and in 1998 she became licensed"]; see also Shao Yun Liu v. Ming Jin Chen, 22 AD3d 555,557 [2d Dept. 2005] ["[T]he court's decision to apply a 100% coverture factor in determining the marital portion of the acupuncture license lack[ed] proper support in the record" where "[t]he parties were married in China on November 29, 1990 and emigrated to the United States on or about September 27, 1991", "[t]he plaintiff qualified for and passed the New York State acupuncture licensing exam in 1992 based, among other things, on documentary evidence that she had received three years [*39]of training in China between January 1988 and April 1991", and "[t]hereafter, she received a limited permit to practice acupuncture in December 1992 and a full license in April 1995"]).Rather than limiting the coverture analysis to the time frames in which the EEC Attainments were obtained by defendant, the appropriate focus is on the extent to which defendant's work at FinSrv has been dependent upon knowledge gained during his pre-marital and marital educational pursuits. Having heard the testimony presented by defendant and the expert witnesses at the trial, it is evident to the Court that some aspects of defendant's duties in his positions at FinSrv have involved mathematical analysis and the creation of mathematical models using the advanced mathematics and engineering knowledge that he gained from the studies that resulted in his Master's and Ph.D Degrees. And while it may be difficult to precisely gauge the portion of the EEC attributable to his pre-marital versus marital attainments, the Court concludes that 30% of the EEC resulted from defendant's pre-marital studies and educational attainments ^[FN28] (see Vora v. Vora, supra , 268 AD2d, at 471 [Applying 22.6% coverture factor to husband's EEC where he had practiced medicine in India for several years before coming to the United States and completed last two months of his residency in United States after divorce action was commenced]; see also Greenfield v. Greenfield, 234 AD2d 60,61 [1st Dept. 1996] ["Nor should the coverture fraction have taken into account the entire 12 years of undergraduate, graduate and post-graduate education the husband required to become an internist. Of those 12 years, only the last 36 months were occupied by the husband's training in his area of specialty, and accordingly it is only this last 36-month period that is relevant to determining the increment of enhancement in plaintiff's professional earnings attributable to his becoming a specialist. As the parties were married for 32 of the relevant 36 months, the correct coverture fraction is 88.89% ..."]).

Based upon that conclusion, the Court applies a 70% coverture factor to the EEC value of $4,300,000 as previously [*40]determined. Performing that calculation results in the sum of $3,010,000 (hereinafter "the Marital EEC") against which plaintiff's equitable distribution claim must be weighed (see Greenfield v. Greenfield, supra , 234 AD2d, at 61 [Coverture fraction of 88.89%, when multiplied by future earning enhancement of $371,485, yielded enhanced earnings of $330,213 attributable to period of marriage]).

The penultimate step in computing plaintiff's share of defendant's EEC is the determination of the percentage of the Marital EEC to which plaintiff is entitled. While plaintiff seeks a 35% award, defendant argues that no more than 5% is justified in this case. In view of this dispute, the Court is obligated to "determine the respective rights of the parties" so that it may equitably distribute the property "considering the circumstances of the case and of the respective parties" (DRL §236[B][5][a],[c]). To accomplish that task, the Court must consider the thirteen equitable distribution factors listed in DRL §236(B)(5)(d) (collectively hereinafter "the ED Factors").

Obviously, much of the analysis of the ED Factors parallels that contained in the discussion of the Maintenance Factors. For that reason, the Court incorporates in this analysis its discussion and conclusions as to the Maintenance Factors which are the same, or essentially the same, as the ED factors. Nevertheless, the Court addresses the ED factors as to which the parties offered evidence at trial.

The first consideration is "the income and property of each party at the time of the marriage, and at the time of the commencement of the action" (DRL §236[B][5][d][1]). As noted, the parties were in substantially equivalent financial circumstances when they married, with both being employed by MTC at not significantly different salaries. Since the action was commenced, however, defendant has seen his income increase dramatically, so that he now earns approximately nine times what plaintiff earns.Over the eleven years of their marriage, primarily due to the increase in defendant's income following his obtaining an MBA and his career change, their economic situation has markedly improved. And as a result of their modest lifestyle and the frugal spending approach taken by them, primarily due to defendant's tight-fisted control over their expenditures, they have amassed more than three million dollars in assets ^[FN29], mostly liquid, which are to be distributed in this action. Because they will be left in similar situations insofar as concerns their sizable assets, this factor does not support more than an equal [*41]distributive award of the EEC (see Smith v. Smith, supra , 8 AD3d, at 729).

Next, the Court considers "the duration of the marriage and the age and health of both parties" (DRL §236[B][5][d][2]). Here, as noted, plaintiff and defendant are in good health at the ages of 43 and 47, respectively. Additionally, theirs is a marriage of long-duration (see Zuch v. Zuch, supra ; see also Granade-Bastuck v. Bastuck, supra ). These factors favor an equal distribution of the Marital EEC (see Granade-Bastuck v. Bastuck, supra , 249 AD2d, at 445 ["Where, in a marriage of long duration, both parties have made significant contributions to the marriage, a division of marital assets should be made as equal as possible"]).

Third, the Court must consider "the need of a custodial parent to occupy or own the marital residence and to use or own its household effects" (DRL §236[B][5][d][3]). In this action, the parties have agreed that plaintiff shall retain the Home, with an appropriate credit to defendant for his share of its equity. Having reached that agreement, they have rendered this factor of little consequence in determining the appropriate distribution of the Marital EEC.

The fourth of the ED Factors to be considered is whether either party is paying or receiving "any award of maintenance" (DRL §236[B][5][d][5]). As determined above, plaintiff shall not be receiving any maintenance in this case.

In reaching that determination, this Court relied not merely upon plaintiff's significant employment income, but also upon the potential investment income that will be available to her using her substantial distributive award. Encompassed in that award is her equitable share of the Marital EEC, which should reflect, in some part, an "exchange" of some amount of maintenance that, in its discretion, this Court could have awarded to her (Falgoust v. Falgoust, 15 AD3d 612,615 [2d Dept. 2005] [Affirming award of $500 per week in maintenance for two years notwithstanding that defendant received considerable distributive award and was fully capable of becoming self-supporting by virtue of her Master's degree from Columbia University and license in speech therapy]; see also Jolis v. Jolis, 111 Misc 2d 965,990 [Sup. Ct. NY Co. 1981], affd. 98 AD2d 692 [1st Dept. 1983], appeal withdrawn 62 NY2d 977 [1984] ["Court must balance these two sources of financial support [i.e., maintenance and distributive awards] to achieve an equitable result"]; cf. Smith v. Smith, supra , 8 AD3d, at 731 [Maintenance award not warranted in view of equal [*42]distribution of marital assets]). Consequently, this factor weighs in plaintiff's favor in the distribution of the Marital EEC (see Madori v. Madori, 201 AD2d 859,959 [3d Dept. 1994] ["Moreover, the court relied upon the distributive award as a substantial factor in its denial of any form of maintenance to plaintiff"]).

The next relevant factor is "any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party" (DRL §236[B][5][d][6]). Generally, when deciding what share, if any, a non-titled spouse is entitled to receive as to a property acquired during a marriage or the enhanced value of a property acquired prior to the marriage by the titled spouse, the Court's "review is not limited to the nontitled spouse's direct financial contributions to the acquisition of the assets, but must include all forms of contribution to the economic partnership that characterizes' a marriage" (Brough v. Brough, 285 AD2d 913,914-915 [3d Dept. 2001] [internal citation omitted]). But, as relates to this case, this factor has the dominant role because "[t]he nontitled party seeking a distributive share of enhanced earning capacity must demonstrate that he or she made a substantial contribution to the titled party's acquisition of that marital asset" that has resulted in the enhanced earnings (Farrell v. Cleary-Farrell, 306 AD2d 597,599 [3d Dept. 2003]).

Here, once again, defendant's lack of credibility has undermined him. While it is conceded by plaintiff that he performed certain chores in the Home, and at times, cared for the parties' children while she was engaged in other endeavors, the Court rejects defendant's effort to portray himself as a totally-involved parent who was an equal partner in caring for the family and participating in its daily routine (cf. Matisoff v. Dobi, 242 AD2d 495,500 [1st Dept. 1997], lv. denied 91 NY2d 805 [1998] ["The trial court, we believe, was quite correct in declining defendant's invitation to minimize [his wife's] contributions" to his attainment of his MBA]). To the contrary, the evidence supports the view that defendant was a controlling individual whose focus was on his personal advancement in his career and the concomitant financial rewards, and whose demands that plaintiff meet his needs were to the immediate exclusion of hers and those of the parties' children.^[FN30] [*43]

Instead, the Court finds that the credible evidence offered by plaintiff has established that while defendant pursued his MBA, beginning at the time plaintiff had just given birth to their first child, he insisted that plaintiff prepare elaborate Indian-style meals, ensure that the children were quiet so that his studies and his sleep were not interrupted, address the children's emotional and health problems and be the primary keeper of their home.^[FN31] Plaintiff, in fact, did all of those things, while also working full-time hours, and even longer than ordinary work days, for MTC, and contributing her income to the family.

Plaintiff, who fully supported defendant's plan to obtain his MBA, continued that role throughout their marriage, enabling him to attain that degree with honors, which resulted in his obtaining his position at FinSrv and succeeding in his career change while she remained in her position, with a substantially lower salary and potential for income growth than his. Those same significant contributions on her part allowed defendant to put in the necessary effort to study for, and pass, the examinations for each of the Five NASD Licenses.

Certainly, defendant is entitled to retain the majority share of the Marital EEC because it was his direct efforts that achieved the EEC Attainments (see Farrell v. Cleary-Farrell, 306 AD2d, at 599 ["Where only modest contributions are made by the nontitled spouse toward the other spouse's attainment of a degree or professional license, and the attainment is more directly the result of the titled spouse's own ability, tenacity, perseverance and hard work, it is appropriate for courts to limit the distributed amount of that enhanced earning capacity"]). However, notwithstanding defendant's view of the evidence, it cannot be credibly denied that plaintiff made substantial economic and non-economic contributions to defendant's achievement of the EEC Attainments. Those contributions warrant an award of a portion of the Marital EEC which far exceeds the stingy 5% proposal urged by defendant (see Cozza v. Colangelo, supra , 298 AD2d, at 916 [*44][Husband awarded 30% of value of wife's EEC attributable to college degree because, "[a]lthough [he] made no financial contributions to plaintiff's college education, he was working during the majority of the time that plaintiff was in college, [] he paid a portion of the family expenses", and "he cooked meals, cared for the parties' three children, and performed housework"]; cf. Flanigen-Roat v. Roat, 17 AD3d 1093,1093 [4th Dept. 2005] [Trial Court abused its discretion in awarding husband only 5% of plaintiff's enhanced earnings, and award was increased to 20%, because husband made both economic and significant non-economic contributions to the marriage while plaintiff attained her medical license]).

The final consideration, and one that is quite significant in this case, is "the probable future financial circumstances of each party" (DRL §236[B][5][d][8]).^[FN32] As discussed above, the parties face vastly different economic futures.

Plaintiff has a secure position at MTC, at which her earnings are not likely to decrease from their current level of approximately $130,000 to $150,000 per year. Nevertheless, absent a promotion to an officer's position, she is also unlikely to see her employment income increase to any significant degree. Thus, her financial future will be dependent upon her employment income as augmented by the investment income that she can generate using the liquid component of her distributive award.

By contrast, as a result of his career change following his attainment of an MBA, defendant has experienced a 1,300% increase in his income. And despite his effort to depict his future as potentially uncertain, as reflected in his description of his [*45]position as "an [sic] non-tenured employee of a financial services company handling exotic financial products" (Def. Conc., p.6), if his employment experience has demonstrated anything, it is that his earnings shall grow even more substantially in the future, to levels that plaintiff has absolutely no likelihood of achieving in her career.

Clearly, considering her income and the seven-figure distribution that she shall receive in this action, plaintiff shall not be suffering financially in the future, but rather shall be able to provide herself with a comfortable lifestyle. But it cannot be overlooked that as defendant proceeds with his post-divorce life, his financial future is markedly rosier than that of plaintiff, which is a relevant factor favoring plaintiff in determining an appropriate distribution of any marital asset, including the Marital EEC (see Willis v. Willis, 107 AD2d 867,868-869 [3d Dept. 1985] [The parties' "probable future financial circumstances ... must be considered upon making an award of equitable distribution"]; cf. Rostropovich v. Guerrand-Hermes, 18 AD3d 211 [1st Dept. 2005] [Finding that, "[i]n general, the [Trial Court's] distribution [was] properly based on a clear and vast economic disparity between the parties"]).

7. PLAINTIFF'S PERCENTAGE SHARE

Unlike many instances in which the non-titled party demands an equal share of a marital asset, plaintiff at bar has limited her request to a 35% share of the Marital EEC. Thus, the Court must determine whether she is entitled to that percentage of this asset, or some lesser portion.

In this case, there can be no doubt that defendant was the driving force behind the decision to pursue an MBA in furtherance of his plan to change careers and enter the far more lucrative financial industry, and that it was his direct efforts that resulted in obtaining that degree, his position at FinSrv, and the Five NASD Licenses. But plaintiff's contributions to defendant's efforts, both economic and non-economic, cannot be overlooked if the Court is to distribute the Marital EEC in a truly equitable manner, as must be its goal if, in fact, marriage is an economic partnership, as the Legislature has acknowledged in its enactment of the Equitable Distribution Law (see DeJesus v. DeJesus, 90 NY2d 643,648 [1997] [Recognizing "the contemporary view of marriage as an economic partnership"]).

Upon consideration of the relevant ED Factors, and most importantly, plaintiff's contributions to the EEC Attainments, the Court concludes that her request for a 35% share of the Marital EEC is entirely appropriate in this case (see Matisoff v. Dobi, supra , 242 AD2d, at 499-500 [Award of 40% of EEC derived [*46]from defendant's acquisition of MBA degree during marriage was justified where, "[p]rior to entering graduate school to obtain his MBA, defendant worked in the film industry and was remunerated at an annual rate of about $35,000", but "[b]y the time of the commencement of this action, defendant, having obtained his MBA and thereafter having become employed successively as a research analyst for several prestigious investment houses, was earning in excess of $400,000 and had not, by any means, reached the ceiling of his earning potential", and "plaintiff had been supportive of defendant's studies and new career emotionally and financially, both as a homemaker and as a lender of substantial funds upon extremely favorable terms for the payment of business school tuition"]; see also Madori v. Madori, supra , 201 AD2d, at 959 [Affirming 40% share of EEC to wife based upon trial record amply supporting Trial Court's rejection of husband's position that "[wife's] efforts as a homemaker played at best a minimal role in his achieving the added earning capacity"]). Accordingly, in its distribution of the marital assets, the Court shall award plaintiff 35% of the Marital EEC.

Next, the Court addresses the distribution of the specific assets. Payment of the distributive award by defendant shall be made as discussed below. Where appropriate, credits shall be given to the parties in the adjustment summary.

Notwithstanding their various disputes, as set forth in their Stipulated Facts the parties have identified certain of their bank and investment accounts that shall be shared equally, and have agreed as to the value of each of those assets. They have also reached agreement regarding the distribution and value of certain retirement accounts and employee stock options. The Court addresses each category of assets separately.

Based upon their agreement, the funds maintained in the following bank and investment accounts ^[FN33], as of the date of commencement of the action, in the name of the party and having the balance reflected, shall be distributed in equal shares to the parties:

AccountAccount NameBalance

1. Vanguard 0163Defendant$495,225 [*47]

2. Vanguard 5030Defendant$507,147 ^[FN34]

3. Vanguard 6401Defendant (Trust)$ 73,941

4. Vanguard 2800Joint$ 4,397

5. Vanguard 2916Plaintiff$ 93,068

6. Vanguard 5376Plaintiff (Trust)$375,838

7. Wachovia Bank 6417Plaintiff$ 16,200

8. Hudson Valley Bank 73S9Plaintiff$10

Total$1,565,826

Each party is awarded $782,913, that being half of the aggregate on deposit in those accounts. To effectuate the distribution, plaintiff is awarded all accounts that are in her name only, i.e., those listed as five through eight, above, and defendant shall pay her $297,797, as directed below, that being the difference between $782,913 and the aggregate of $485,116 on deposit in plaintiff's accounts when the action was commenced.

As of the date of commencement, the parties possessed the following retirement accounts, in the name of the party and having the balance reflected:

AccountAccount NameBalance

1. FinSrv 401KDefendant$111,661

2. FinSrv ESOPDefendant$ 60,318

3. MTC 401KDefendant$125,718

4. Vanguard IRADefendant$ 13,030

5. MTC 401KPlaintiff$211,902

6. MTC PensionPlaintiff$105,909

Total$628,538

Defendant also possessed a FinSrv Defined Benefit Plan, the value of which has not been determined.

Pursuant to the Stipulated Facts, each party is awarded his or her 401K, ESOP, IRA and MTC Pension accounts. In addition, in conformance with that stipulation, "[t]he marital portion of the Defendant's [FinSrv] Defined Benefit Plan, as well as all enhancements, appreciation, cost of living adjustments and emoluments shall be divided by Qualified Domestic Relations Order, which contains provisions for Plaintiff to be the surviving spouse for pre- and post retirement benefits, which order shall be prepared by Robert Guarnara" (Stip., par.39).

3. EMPLOYEE STOCK OPTIONS

As further acknowledged by the parties, on the commencement date of the action, both owned "certain employment based stock options, which were granted by their respective employers in connection with past and/or continued employment" (Stip., par.40). In accordance with their stipulation, plaintiff is [*48]awarded her stock options and defendant is awarded his stock options and KEPER investments. Further, pursuant to their agreement, defendant shall transfer the sum of $31,725 to plaintiff "as a direct rollover from [his] ESOP plan to plaintiff's 401K plan" (ibid.).

Plaintiff has possession of a 2003 Honda Odyssey and a 1995 Toyota Camry, valued at $21,000 and $2,500, respectively.^[FN35] Defendant is in possession of a 2004 Honda Pilot having a value of $24,000.^[FN36] As to the distribution of these assets, the parties have no dispute.

Rather, based upon their agreement as reflected in their Stipulated Facts and post-trial submissions, plaintiff shall retain the 2003 Honda Odyssey and the 1995 Toyota Camry, and defendant shall retain the 2004 Honda Pilot. Neither party shall be entitled to any credit for any difference in the values of the vehicles retained by them.

Also pursuant to their stipulation, plaintiff shall receive the Home as part of her distributive award, "and defendant shall receive an offsetting amount of marital assets" representing his one-half interest in the equity in the Home (Stip., par.30). However, they are in disagreement as to the valuation date for the Home. That dispute is significant because of the difference in values of the Home at the time of commencement and the time of trial.

Plaintiff contends that the Court should value the Home as of the commencement date, at which time it had a fair market value of $865,000, an outstanding mortgage of $600,000 and equity in the amount of $285,000. Defendant urges the Court to adopt the date of trial as the valuation date, when its fair market value, outstanding mortgage and equity were $1,000,000, $578,876 and $421,124, respectively.

"It is true that, although a trial court possesses discretion and flexibility to select valuation dates for marital assets which are appropriate and fair under the circumstances, where the asset to be valued is the marital residence, the valuation date employed should generally be as close to the time of the trial as is practicable" (Moody v. Moody, 172 AD2d 730,731 [2d Dept. 1991]). Using that date to value a marital residence is generally appropriate because it "avoid[s] the injustice to one [*49]spouse which could result from either appreciation or depreciation in the value of the residence between the date of commencement of the action and the date of trial" (Wegman v. Wegman, 123 AD2d 220,232 [2d Dept. 1987]).

Of course, where circumstances warrant it, the Trial Court may select the date of commencement as the valuation date, such as where the post-commencement actions of one party are intended to prejudice the equitable distribution rights of another (see Maio v. Maio, 151 AD2d 463,465 [2d Dept. 1989] ["Supreme Court properly calculated the defendant's distributive award based upon the amount of the mortgage existing at the time the action was commenced" because "following the commencement of the action ... the plaintiff increased the mortgage on the marital residence to decrease any distributive award which the defendant might receive based upon its value"]). Here, no such circumstances have been shown by plaintiff. Rather, her position is that the trial of the action was substantially delayed by "defendant's misrepresentations regarding his NASD licenses, which necessitated further discovery ... and days of trial", and that as a consequence, he "should [not] enjoy the appreciation in the [Home]" (Pl. Mem., p.24).

Contrary to plaintiff's view, this is not an instance in which defendant's improper discovery tactics have prejudiced her rights with respect to the value of the Home. Instead, what has occurred is that there has been a substantial appreciation in the value of the Home during the period of delay caused by defendant's withholding of relevant information in the discovery process. Under these circumstances, no reason exists to preclude defendant from sharing in the $135,000 appreciation in the value of the Home from the date of commencement to the date of trial of the action (see Newman v. Newman, 35 AD3d 418 [2d Dept. 2006] [Trial date should be used as valuation date for marital residence "especially ... where the dramatic increase in the value of real property is attributable to market forces rather than the contributions of either party"]).^[FN37]

Having reached that conclusion, the Court adopts the date of trial as the valuation date of the Home. Consequently, the parties shall equally share the equity of $421,124, thereby entitling each to the benefit of $210,562 of that equity.

Because the trial date has been selected as the valuation date, and plaintiff has made post-commencement mortgage payments [*50]and certain expenditures for repairs, she is entitled to a credit against defendant's share of the equity in the Home (see Palumbo v. Palumbo, 10 AD3d 680,682 [2d Dept. 2004], lv. dismissed 3 NY3d 765 [2004] ["[T]rial court should have reduced the plaintiff's share of the proceeds from the sale of the marital home in order to credit the defendant with his 50% share of the money that he paid to reduce the principal balance of the mortgage on that property"]; cf. Kaye v. Kaye, 6 Misc 3d 1005[A], *5, 800 NYS2d 348 {6 Misc 3d 127(A)} [Sup. Ct. NY 2005] [Where commencement date was chosen as valuation date for marital residence, and plaintiff resided in it throughout the litigation, she alone was responsible for the post-commencement costs of maintaining it, including the mortgage payments]). Specifically, she has paid $21,964 towards the mortgage and $7,348 for repairs during that period, for a total of $29,312. Defendant's share of the equity must, therefore, be reduced by his one-half share of that total, or $14,656.

Accordingly, defendant shall transfer his interest in the Home to plaintiff. In return, defendant shall receive a credit in the amount of $195,906 ($210,562-14,656), which shall be reflected in the adjustment summary.

In 2004 defendant received a gross bonus payment of $485,750.94 from FinSrv for work performed in 2003. The net bonus payment to defendant was $285,430.00 (the 2003 Net Bonus)^[FN38]. The parties next dispute relates to the distribution of this bonus. It is defendant's position, opposed by plaintiff, that only 11/12 of the 2003 Bonus should be distributed between the parties, because the action was commenced on December 4, 2003, and he worked for one-month thereafter in 2003.

It is settled law that "[a] bonus, earned during the course of the marriage but paid after commencement of marital dissolution proceedings, is marital property subject to equitable distribution" (Hartog v. Hartog, supra , 85 NY2d, at 49). Thus, as is conceded by defendant, that portion of the 2003 Bonus representing compensation for the period from January 1 to December 4, 2003 must be distributed equally between the parties (see ibid.; see also George v. George, 237 AD2d 894,895 [4th Dept. 1997] [Trial Court correctly distributed " milk equity' checks [that] were earned during the marriage"]). [*51]

Plaintiff, however, maintains that the entire bonus should be divided between them because "the bonus paid in 2004 were [sic] for the services performed by the Defendant in 2003, ... the bonus was announced to Defendant on December 13 or 14, 2003 and [] the action ... was commenced ... on December 3, 2004" (Pl. Findings, p.15). Rather than supporting her view, however, the first and third of those considerations, i.e., the year in which the work was performed and the commencement date of the action, undermine her position (see Hartog v. Hartog, supra , 85 NY2d, at 49). And the second factor cited by her, that being the date the bonus was announced, is without relevance, since the income would be subject to distribution based upon the date in which the work was performed and the action was commenced, whether it had been announced in advance or not.^[FN39] Therefore, the Court agrees with defendant that he is entitled to receive an undivided portion of the 2003 Net Bonus, representing compensation for the 27 days between the date of commencement of the action and the final day of the 2003 calendar year.^[FN40]

Performing the requisite calculation, defendant's undivided share for that period is $21,114 (27/365 x $285,430) and the parties shall equally share the balance of $264,316. Thus, the 2003 Net Bonus shall be distributed in the amounts of $132,158 to plaintiff and $153,272 to defendant ($21,114 + 132,158).

As is undisputed, the 2003 Net Bonus was deposited by defendant into Hudson Valley Credit Union Account 0901 (HV Account 0901), which had a balance of $339,000 as of January 15, 2004. They further agree that subject to the Court's determination as to the distribution of the 2003 Net Bonus, that [*52]account shall be divided equally between them.^[FN41] Excluding the 2003 Net Bonus, the amount on deposit in HV Account 0901 is $53,570, of which each party shall receive $26,785.

Consequently, the funds on deposit in HV Account 0901 shall be distributed in the sums of $158,943 ($132,158 + 26,785) to plaintiff and $180,057 ($153,272 + 26,785) to defendant. An appropriate credit shall be given to plaintiff in the adjustment summary for her share of those funds.

As determined above, the Marital EEC is valued at $3,010,000. Since plaintiff is awarded a 35% portion of the Marital EEC, she shall receive $1,053,500 as her share of that asset. That award shall also be reflected in the adjustment summary.

It is undisputed that in 2004, using his post-commencement earnings which were his separate property, defendant paid additional income tax liabilities for the parties for the 2003 tax year when they filed joint returns. Specifically, he paid $18,518 and $3,235 in Federal and New York State taxes, respectively. He also paid $17 in additional taxes with respect to the income of one of their children. It is defendant's contention that he is entitled to a credit of one-half of the aggregate sum of $21,770 that he paid. The Court agrees with defendant.

It is settled law that a tax obligation incurred before commencement of a matrimonial action is marital debt that must be distributed by the Court (LaBarre v. LaBarre, 251 AD2d 1008,1009 [4th Dept. 1998] ["Because the tax liability was incurred during the course of the marriage, it constitutes a marital debt"]; Lekutanaj v. Lekutanaj, 234 AD2d 429,430 [2d Dept. 1996] ["[T]axes [that] were clearly incurred before the action was commenced ... constituted a marital debt"]). Generally, marital debt, such as tax liabilities, is distributed in the same proportions as the parties' marital assets (see Conway v. Conway, 29 AD3d 725,726 [2d Dept. 2006] ["The Supreme Court correctly determined that the defendant is liable for one-half of the parties' tax obligation arising out of the failure to pay proper income taxes during their marriage. Since the defendant shared equally in the benefits derived from the failure to pay, she must share in the financial liability arising out of tax liability."] see also Purpura v. Purpura, 193 AD2d 793,793 [2d Dept. 1993] [No error for Trial Court to allow husband a credit against wife's [*53]distributive award for share of tax liabilities borne by him in same 35% proportion as was the award to her of the bulk marital assets]).

In this case, no reason has been offered why the parties should not share the additional tax obligations incurred for a tax year in which they filed joint returns. Because the majority of their assets are being distributed in equal proportions, the Court concludes that plaintiff must bear one-half of the total additional taxes paid by defendant for the parties' 2003 tax liabilities (see Purpura v. Purpura, supra ). Accordingly, defendant is awarded a credit of $10,885, which shall be included in the adjustment summary.

Plaintiff also seeks an award of prejudgment interest for the assets that were valued as of the commencement date of the action. She maintains that this relief is particularly appropriate based upon defendant's litigation strategy, which she characterizes in the following manner:

"His purposeful attempt to keep his various licenses from being valued as a marital asset and his affirmative machinations, and enlistment of [FinSrv] personnel in aid thereof, to make it appear that his MBA was of no value in his current job, all conspired to delay the process, to the detriment of plaintiff. Defendant's conduct was directly responsible for the inordinate delay in this matter reaching trial and thereby in depriving plaintiff of having the use of her share of marital property during this period." (Pl. Mem., p.27).

In plaintiff's view, "the defendant has been guilty of every justification imaginable for the imposition of pre-judgment interest" (ibid.).

It is well-established that "[a]n award of prejudgment interest on a distributive award is within the sound discretion of the trial court" (Lipsky v. Lipsky, 276 AD2d 753,754 [2d Dept. 2000]). In this case, two grounds justify an award of prejudgment interest.

First, plaintiff is entitled to be compensated for the value of the assets that she is receiving and that were valued as of the commencement date. Indeed, the validity of this ground for such an award has been explained as follows:

"Interest is not a penalty. Rather, it is simply the cost of having the use of another person's money for a specified period. It is intended to indemnify successful plaintiffs for the nonpayment of what is due to them, and it is not meant to punish defendants for delaying the final resolution of the litigation." (Selinger v. Selinger, 232 AD2d 471,473 [2d Dept. 1996], lv. dismissed 89 NY2d 981 [1997], lv. dismissed 90 NY2d 842 [1997], [*54]rearg. denied 90 NY2d 937 [1997]).

Thus it is that in matrimonial proceedings, when marital assets are valued as of the commencement date, the party denied the use of those assets during the course of the litigation is entitled to interest from that date (id., 232 AD2d, at 473). Indeed, the failure to award prejudgment interest under those circumstances is error (Burrows v. Burrows, 270 AD2d 871,871-872 [4th Dept. 2000] ["The court erred in failing to award plaintiff prejudgment interest on those assets that were valued as of the time of the commencement of the action"]). Because the HV Account 0901 ^[FN42], the Marital EEC and the Bank and Investment Accounts have been valued as of the commencement date of the action, she is entitled to an award of prejudgment interest on her shares of the first two of those assets and the payment that she shall receive as an adjustment of the parties' interests in the Bank and Investment Accounts (collectively hereinafter "the three prejudgment interest assets"), to be calculated as of December 4, 2003.^[FN43]

Second, defendant's deliberate efforts to hinder plaintiff in the discovery process and to manipulate the information that she received, which have caused her to incur additional expenses and have substantially delayed the distribution of marital assets that she is entitled to receive, warrant an interest award. It is entirely appropriate to award prejudgment interest where, as at bar, a party has delayed the disposition of a matrimonial action by withholding discovery or engaging in other prejudicial litigation tactics (see Lipsky v. Lipsky, supra , 276 AD2d, at 754 ["The trial court providently exercised its discretion in providing for interest on the distributive award, especially where, as here, the defendant, in failing to provide certain financial documents, caused his medical practice to be substantially undervalued"]; see also Largiader v. Largiader, 151 [*55]AD2d 724,725 [2d Dept. 1989] [Appellate Division exercised its discretion to award wife prejudgment interest on pension assets "in view of the inordinate delay in reaching a trial of th[e] action"]).

Like the decision to award prejudgment interest, the determination of the proper interest rate is within the Court's discretion (Selinger v. Selinger, 250 AD2d 752 [2d Dept. 1998], lv. dismissed in part, denied in part 92 NY2d 891 [1998] ["The Supreme Court has discretion to set the rate of prejudgment interest in a matrimonial or equitable action"]; Madonna v. Madonna, supra , 265 AD2d, at 455 ["The Supreme Court had the authority to award interest in this matter and to set the rate at 9% per annum pursuant to CPLR 5004", but "the rate of 9% per annum is not mandatory"]). In this case, the Court finds no reason for awarding the prejudgment interest at a rate less than the 9% statutory rate (CPLR 5004) measured from the date of commencement to the date of this Decision and Order, especially considering defendant's misconduct in the discovery process (see Lipsky v. Lipsky, supra , 276 AD2d, at 754 [Affirming Trial Court's award of prejudgment interest on the distributive award at the rate of 9% from the date of commencement of the action to the date of entry of the judgment of divorce", where defendant "fail[ed] to provide certain financial documents"]).

Applying that rate against the three prejudgment interest assets results in the following interest awards ^[FN44]:

AssetValueInterest

Share of HV Account 0901$ 158,943$ 45,565.70

Share of Marital EEC$1,053,500$302,016.85

Payment adjusting Bank$ 297,797$ 85,372.30

and Investment Accounts

Total$432,954.85

Therefore, plaintiff is awarded prejudgment interest in the amount of $432,954.85, which shall be included in the adjustment summary. And, of course, as correctly argued by plaintiff, the prejudgment interest shall continue to accrue until a Judgment of Divorce is entered by the Court (CPLR 5002 ^[FN45]; Gold v. Gold, 276 [*56]AD2d 590,591 [2d Dept. 2000] [Party receiving distributive award is entitled to interest on it from date of decision until the entry of judgment]).As the last aspect of the issue of interest on the distributive award, plaintiff asks for an award of interest from the date judgment is entered until it is fully satisfied by defendant. As a matter of law she is entitled to postjudgment interest (CPLR 5003 ["Every money judgment shall bear interest from the date of its entry."]; Gold v. Gold, supra , 276 AD2d, at 591 [Recipient of distributive award is entitled to postjudgment interest from entry of judgment to the date of payment]). Accordingly, the Judgment of Divorce to be submitted to the Court shall include a provision for 9% interest from the date of entry of the judgment until the date it is fully paid.

Defendant launches a multi-ground assault upon plaintiff's application. His complaints include, inter alia, that: (1) the billing records fail to properly identify the categories of work performed by her counsel, thereby rendering it impossible for the Court to properly review the application; (2) plaintiff's counsel have billed for services not related to this action, such as for the preparation of a will and for legal work performed in Family Court prior to the commencement of this action; (3) the charges for which payment are sought include improper billings for consultations between members of plaintiff's counsel's law firm and between those counsel and other attorneys not involved in the litigation; and (4) plaintiff's application includes a request for fees incurred in recovering fees, in violation of what he claims to be controlling precedent to the contrary.

As an initial matter, the Court agrees with defendant that a [*57]post-trial fee application involving the number of fee and expense charges involved in this action would be better if supported, not merely by a copy of all billings, which is clearly required (see Lazich v. Lazich, 189 AD2d 750,752 [2d Dept. 1993], appeal dismissed 81 NY2d 1007 [1993] ["[I]t is an improvident exercise of discretion to award [counsel] fees where there is no supporting documentation"]), but by a meaningful summary of the types of work performed and the related total fees. Indeed, it is wholly unrealistic to expect that the already-overburdened Trial Courts of this State have the time to pour over every single entry in a billing submission such as the nearly 200 pages involved at bar, in order to render a determination on a fee award.^[FN46]

Here, despite the burden on the Court's time and resources, it has, in fact, reviewed the billings in full. Having done so, it agrees with defendant that it would be unreasonable to require him to pay for certain of the charges, such as those involving discussions among members of the same firm, and consultations between its highly-experienced counsel and attorneys who were otherwise not involved in the litigation. Thus, in determining the appropriate award, the amount of fees must be pared down to a reasonable level.

Moreover, the Court cannot overlook the fact that defendant has already paid more than $83,000 in pendente lite counsel fees, and has incurred significant expenses for Law Guardian and other expert fees as directed earlier in the litigation. Also, the Court must consider that plaintiff remains in a long-term, secure position at MTC which permits her to be self-supporting, and following the entry of the Judgment of Divorce, she shall receive more than two million dollars in mostly-liquid assets, which will enable her to absorb her previous payment of more than $395,000 in legal fees, as well as to satisfy her outstanding fees of approximately $95,000 (see Carniol v. Carniol, 306 AD2d 366 [2d Dept. 2003] [Because wife held Master's Degree in business and was capable of being self supporting, and in view of $321,000 distributive award to her, Appellate Division held that the counsel fee award was excessive and reduced it from $94,590.23 to [*58]$50,000]; see also Chalif v. Chalif, supra , 298 AD2d, at 350 [Where wife received $2,500,000 distributive award, "[t]he award of $25,000 for counsel and expert fees was reasonable in light of the financial circumstances of both parties, including the substantial distributive award ..., which was sufficient to enable her to pay the litigation expenses, and the Supreme Court's determination that the counsel fees were excessive"]).

To be weighed against those considerations is the significant factor of defendant's efforts to deny plaintiff pretrial discovery to which she was entitled, as described more fully above with respect to the credibility issues in this case. Notwithstanding defendant's denials as to the claims made by plaintiff, it cannot be credibly disputed that his deceptive and controlling conduct with respect to the pretrial discovery process required additional legal services by her counsel with respect to the pursuit of relevant documents and the examination of several FinSrv employees at depositions, and caused her to incur thousands of dollars in litigation expenses that would have been unnecessary if defendant had not decided that he was free to ignore his well-established discovery obligations.

Certainly, even where there have been dilatory tactics employed by a party, a Trial Court may deny a counsel fee request if the applicant will, after judgment, possess sufficient assets to pay his or her legal expenses (see Gober v. Gober, 11 AD3d 261 [1st Dept. 2004], lv. denied 7 NY3d 712 [2006] ["Plaintiff's request for counsel and expert fees pursuant to Domestic Relations Law §237, based upon defendant's allegedly obstructive litigation conduct, was properly denied on the ground that the divorce judgment put the parties in financial parity and made each a multimillionaire"]). Here, however, the extent to which defendant's litigation approach has "ratcheted-up" plaintiff's legal fees must be addressed with an appropriate fee award (see Holbrook v. Holbrook, 226 AD2d 831,832 [3d Dept. 1996] [Counsel fee award properly granted based, in part, upon "the fact that a significant portion of the legal expenses with which plaintiff has been burdened are the product of defendant's dilatory tactics and obfuscation"]).

Balancing all of these factors, including the disparate incomes of the parties, the amount of the distributive award, the impact of defendant's deceptive and obstructive litigation tactics, the significant legal fees already paid by plaintiff from the accounts that she shall retain and the reasonableness of the fees charged by her counsel and the experts retained by her, the Court determines that a counsel fee award in the amount of [*59]$125,000 is warranted ^[FN47] (cf. Weinstein v. Weinstein, 18 AD3d 246,247 [1st Dept. 2005] [Affirming $300,000 counsel fee award "given the parties' respective financial circumstances and all the other circumstances of the case", including the fact that, because of his greater resources, defendant was always far more able than plaintiff to pay his legal fees, and recognizing that "[t]he fact that plaintiff received a substantial distributive award does not preclude her award of counsel fees where she has been forced to use much of the distribution toward legal expenses"]). Payment of that award shall be reflected in the adjustment summary.

Upon the foregoing determinations on these various financial issues, the following applies:

OWED BY DEFENDANT TO PLAINTIFF

Child Support Arrears:$184,872.00

Bank and Investment Accounts:$297,797.00

Stock Option Accounts:$31,725.00

HV Account 0901:$158,943.00

Defendant's EEC:$1,053,500.00

Prejudgment Interest:$432,954.85

Counsel Fees:$125,000.00

Total:$2,284,791.85

OWED BY PLAINTIFF TO DEFENDANT

Marital Home:$195,906.00

2003 Tax Payments:$10,885.00

Total:$206,791.00 [*60]

As is evident, defendant owes plaintiff the sum of $2,078,000.85 as her distributive award.

Defendant shall satisfy his obligations with respect to the distributive award in short-term and long-term payments. First, within fifteen days of service upon him of the Judgment of Divorce with notice of entry, defendant shall pay plaintiff the sum of $158,943.00, representing her full share of the funds on deposit in HV Account 0901. Second, within thirty days of service upon him of the Judgment of Divorce with notice of entry, defendant shall pay plaintiff the sum of $297,797.00, representing the full adjustment as to the Bank and Investment Accounts. Third, also within thirty days of service upon him of the Judgment of Divorce with notice of entry, defendant shall pay plaintiff the sum of $443,209.00, representing the first $650,000.00 of plaintiff's share of the Marital EEC, reduced by the entire $206,791.00 owed by plaintiff to defendant as set forth above. Fourth, within 45 days of service upon him of the Judgment of Divorce with notice of entry, defendant shall transfer the sum of $31,725.00 to plaintiff's 401K plan as a direct rollover from his ESOP plan. Finally, to satisfy his obligations with respect to the balance of plaintiff's share of the Marital EEC, in the amount of $403,500.00, the child support arrears, the prejudgment interest and the counsel fees, defendant shall make four payments each in the amount of $229,265.36 commencing on January 15, 2008 and continuing on the fifteenth of each January thereafter, and a fifth and final payment in the amount of $229,265.41 on January 15, 2012 (see Unger-Matusik v. Matusik, 276 AD2d 936,938 [3d Dept. 2000] ["[T]he manner in which a distributive award is to be made is discretionary"]; see also Bohnsack v. Bohnsack, 185 AD2d 533,536 [3d Dept. 1992] [Husband permitted to pay distributive award in five annual payments rather than immediately, considering limited liquidity of his stock assets]).

Further, as determined above, plaintiff shall be entitled to prejudgment interest at the rate of 9% on her distributive award of $2,078,000.85, from the date of entry of this Decision and Order until the date of entry of the Judgment of Divorce. Plaintiff is also entitled to postjudgment interest on the unpaid balance of the distributive award from the date of entry of the Judgment of Divorce until the distributive award is fully paid by defendant. (see Lipsky v. Lipsky, supra ).

Finally, there are certain asset transfers that must be accomplished. As to the Home, within 30 days of the date of entry of the Judgment of Divorce, plaintiff shall serve defendant with all documents necessary for the transfer of defendant's interest to plaintiff, including any documents necessary to remove him from the mortgage. Defendant shall then have fifteen days to execute those documents and return them to plaintiff. Similarly, [*61]within 30 days of the date of entry of the Judgment of Divorce, each party shall serve the other with all documents necessary for the transfer of the other party's interest in any bank, investment or other account, or motor vehicle, which shall be retained by the party serving the documents. Within fifteen days thereafter, the party served with the documents shall execute them and return them to the party who served them.

Plaintiff shall submit proposed Findings of Fact and Conclusions of Law and a Judgment of Divorce consistent with this Decision and Order, on notice to defendant.

It is an unfortunate fact that parties to litigation may, at times, attempt to unbalance the scales of justice by concealing evidence that is subject to disclosure as part of well-defined discovery rules. In this case, defendant, whose business involves the analysis of financial risks, obviously determined that the monetary gain he would realize by defeating plaintiff's equitable distribution claim to his enhanced earnings capacity outweighed the risk that his deceptive and manipulative conduct in the pretrial discovery phase of the lawsuit would be uncovered.

Had his plan succeeded, he would have occupied that "unique position among the litigants in our courts" by "successful[ly] suppress[ing] [] the truth" (see Stewart v. Metropolitan Street Railway Co., supra , 72 App.Div., at 463). Fortunately, for plaintiff, and perhaps more so, for our system of justice, he failed. Consequently, he has paid for his misguided efforts. This

Court can only suggest that others, similarly situated, be guided by his lesson.

The foregoing shall constitute the Decision and Order of the Court.

Dated: White Plains, New York

February 9, 2007

HON. WILLIAM J. GIACOMO, J.S.C.

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