In this action for divorce and ancillary relief the court conducted a trial over 24 days. A judgment of divorce was granted after inquest on September 24, 2008 and signed on February 26, 2009.

The parties were married on July 8, 2003 and have two daughters, "A", born on May 24, 2004, and "B", born on April 14, 2006. During the marriage they lived at [ADDRESS REDACTED]. Soon after the parties were married trouble appeared resulting in couples' [*2]counseling almost from the outset. As is often the case, the parties' trial testimony presents each of their issues with the other from their own perspective. The defendant contends she "basically ran for my life" from the marriage and the plaintiff believes that soon after the wedding he discovered "S.S." was not who she pretended to be" when they were dating.

After some trial separations, the defendant left for good on December 29, 2006. She went to live at the home of her parents in Lakewood, New Jersey, where she continues to reside. Attempts at reconciliation were made, largely through the efforts of the parties' fathers, to no avail.

Although the plaintiff visited with his children between the date of the separation and sometime in June 2007, this abruptly ended. The court is of the opinion that blame for the sudden cessation of visitation lies with both parties.

On June 25, 2007, plaintiff commenced this action by filing a summons with notice. Service of the summons was effected on September 17, 2007. In addition, an order to show cause was served

and filed seeking visitation with the children. Defendant immediately opposed the plaintiff's request for visitation, asking the court to order all visitation be supervised.

The basis for the request for supervised visitation has generated a multitude of motions and orders over the past twenty-seven months; mostly as a result of misunderstanding and miscommunication. It all started, as the defendant testified,

on April 24, 2007 when "A" woke up, pointed to her diaper and screamed "boo boo" indicating pain in her genital area. Then again, on June 16, 2007, defendant observed "A" touching her genitals. When asked why she was doing that, she indicated she was playing doctor.

As a result of these events, the child's mother took her to a medical doctor for examination. Although no evidence of sexual abuse was found, at the suggestion of her doctor, the defendant received a referral for a child therapist. This resulted in "A" being visited by Hillel Sternstein, a social worker. In support of the request that visitation be supervised, the defendant outlined the April and June incidents involving "A", and attached a letter from Mr. Sternstein dated September 20, 2007.

It is easy to understand how a father could be hurt, confused and angered by an application that visitation with his children be supervised, especially in light of the loose averments of sexually acting out on the part of his young daughter. However, a careful reading of the parties' papers and subsequent orders of visitation by respective courts supports Mr. Sternstein's testimony that he was making no allegation of abuse, but he felt "A" was under stress making it important that a resumption of visits with her father after a three month hiatus, be "organized and structured." In other words, his letter was not an abuse accusation against the plaintiff but, instead, an expression of concern for "A's" stress level.

On her part, the defendant testified that she never accused plaintiff of abusing their daughter and that if the child's mental health professional, Mr. Sternstein, had recommended unsupervised visitation, she would have been fine with it. In any event, supervised visitation for five hours each Sunday was ordered by Justice Thomas on October 25, 2007, with plaintiff's father appointed as the supervisor. This was changed by order of December 11, 2007, the court finding plaintiff's father was "not a neutral party..." but nevertheless supports defendant's claim that she was making no allegation of abuse against her husband. In fact, less than one month after [*3]Mr. Sternstein wrote his letter, defendant's lawyer admitted, at an October 17, 2007 court hearing, that the defendant was not accusing the plaintiff of sexual abuse. Defendant's lawyer stated, at the same hearing, "Nobody alleged in the first instance before Judge Prus that there was any form of sexual abuse being charged or claimed." This should have put to rest any contention on this issue.

To amplify this point, on February 28, 2008, this court concluded that a hearing on continued supervised visitation was unnecessary and directed immediate unsupervised visitation of the children with the plaintiff.

In March 2008, the forensic evaluator appointed by Judge Thomas, Sherill R. Sigalow, Ph.D., submitted her report. Soon after that, a custody hearing was held and on May 16, 2008, the court issued its decision with respect to same.

As indicated earlier, a trial on all issues was held on various dates between June 12, 2008 and September 14, 2009. Both parties were directed to submit memoranda of law.

Since a judgment of divorce was granted to the plaintiff on September 24, 2008, the issues remaining to be decided are:

(a) custody and visitation; (b) child support and maintenance;

(c) equitable distribution of the marital property of the parties which include jewelry, a car, a tax refund check and credit card debt; (d) equitable conveyance of realty located at [ADDRESS REDACTED], together with any offsets for carrying charges, repairs and tenant security deposits; and (e) counsel fees.

A.CUSTODY AND VISITATION

In all custody proceedings, the courts' sole concern is the best interests of the children (Domestic Relations Law §70(a), 240; Eschbach v Eschbach, 56 NY2d 167; Friederwitzer v Friederwitzer, 55 NY2d 89). In making this determination the court must balance each parent's ability to provide for the child's physical, emotional and intellectual growth, to provide parental guidance and to foster stability.

Divorce alters children's lives. This truth is unassailable. It is just as true that in cases where a high level of parental conflict exists, such as this one, the potential destructive impact on the parties' daughters is heightened. (See: Johnson, "High-Conflict Divorce" in 4(1) The Future of Children and Divorce, 165 [1994]).

In this case, the mother has moved to Lakewood, New Jersey. This, of course, puts unfortunate distance between the father and his children. Nevertheless, it cannot be found that the defendant moved to New Jersey out of spite, or to cause alienation between father and children. Rather, this is her parents' home. It is where she has support. In fact, since she no longer works the court is at a loss to find any other place that she can go under the present circumstances. Surely, divorce causes anxiety and life disruptions for parents and children alike, yet courts must make decisions focusing only on what is in the children's best interests at this point in time, for this family and its changed structure.

In this case, both parties are good and loving parents. Both children are affectionate to their father and mother. This is fortunate given the tension in this protracted and contentious litigation.

Under the law, there is no presumption of the right to custody by either parent. It is for the [*4]court to determine based upon the credible evidence received at hearing and at trial considering all of the circumstances presented. In doing so, the court is of the opinion that custody should remain with the mother. The credible trial testimony showed the defendant to be the more mature parent. During the marriage, it was the defendant who tended to the childrens' daily needs. Since birth, it is the mother who had primary contact with doctors. It was she who took the lead in child care: cooking, cleaning and caring for her daughters. Dr. Sigalow, the independent forensic evaluator appointed to submit a report to the court, describes the defendant as "the more experienced parent, having served as the children's primary caretaker for the entirety of their young lives" while further opining that the plaintiff has "a lot to offer the children now that the family is no longer intact."

Presented with all of these circumstances and having heard the testimony of both plaintiff and defendant, as well as the hearing testimony of Dr. Paul Hymowitz and having read the evaluations of Dr. Sheryll Sigalow, the court awards custody of the children to the defendant, with liberal visitation to the plaintiff.

Therefore, the plaintiff shall have parenting time or visitation, with his daughters, at his place of residence, every other weekend from Friday at 3:00 PM until Sunday at 5:00 PM. Plaintiff is responsible to arrange pick-up of the children on Fridays at 1:00 PM and the defendant is responsible to arrange pick-up of the children on Sundays at 5:00 PM. Plaintiff shall also have parenting time with his daughters in Lakewood, on Wednesdays from 4:00 PM to 6:00 PM, away from the defendant's residence. Each parent shall have private telephone contact with the children every day.

Plaintiff shall also have four weeks of summer vacation with the children, two weeks in July and two weeks in August. He shall advise the mother of his selected weeks no later than May 15th. In the event the children receive a week mid-winter recess from school, then and in that event, starting in 2011, the plaintiff shall have visitation during that week, starting on the Friday prior to the start of the vacation, if that is plaintiff's scheduled visitation weekend (otherwise commencing on Monday morning) and ending on Friday at 1:00 PM (unless that weekend is a scheduled visitation weekend for plaintiff, in which event visitation shall end at Sunday at 5:00 PM).

With respect to religious holidays, the visitation schedule shall be as follows:

(a)In 2010 and in even years thereafter, Purim, Shavuot, Rosh Hoshana and Yom Kippur shall be celebrated with the mother, and in odd years with the father;

(b)In 2010 and in even years thereafter, the first four days of Passover (until 5:00 PM on the fourth day) shall be celebrated with the father and the balance of the holiday with the mother, and in odd years the order will be reversed;

(c)In 2010 and in even years thereafter, the first five days of Sukkot (until 5:00 PM on the fifth day of the holiday) shall be celebrated with the father, and the balance of the holiday with the mother. In the event the fifth day falls on the Sabbath, then the exchange shall occur on the sixth day of the holiday (the second half of Sukkot includes Shemini Atzeret and Simchat Torah). In odd years the order will be reversed.

(d)In 2010 and in even years thereafter, Sabbath Chanukah (Friday and Saturday and any school vacation days) shall be celebrated with the mother, and in odd years with the father.

During holidays, the plaintiff is responsible to arrange pick-up of the children at the start [*5]of the holiday and defendant is responsible to arrange pick-up at the conclusion of the holiday.

In the event either party intends to travel with the children at any time, a detailed itinerary shall be provided to the other parent, as well as means of communicating with the children.

Defendant may not move from Lakewood, New Jersey, without the permission of the court.

Given the acrimony of the litigation and the tension between the parties, agreement on the children's needs is unlikely. Major decisions concerning the children shall be made collaboratively. The mother shall consult with the father and the father must immediately be advised of emergency decisions made by the mother. He is entitled full access to all of the children's records. (See: Dhingra v Puri, 62 AD3d 935; Mildred S.G. v Mark S.G., 62 AD3d 460). However, in the event the parties do not agree on major decisions concerning the children, the mother's decision shall govern.

B.MAINTENANCE AND CHILD SUPPORT

The parties were married for about four years before the final separation. Given the short duration of the marriage, the original pre-marital compact allowing the plaintiff to study for a period of ten years, while the defendant worked, the plaintiff's limited resources and the defendant's residence with her parents, as well as the age and health of the parties, no award of maintenance is warranted (Domestic Relations Law §236 [B][6][a]; DeWitt v Sheiness, 42 AD3d 776).

The court is not of the opinion that the failure of plaintiff to present defendant with a Get authorizes an award of maintenance under the current circumstances. The attention to the parties is directed however to a recent decision of the Supreme Court of Canada allowing damages in situations where barriers to remarriage are not removed by a party. (See: Bruker v Markovitz, 2007 SCC 54).

A determination of child support is a more difficult matter. Plaintiff claims his only income is a Yeshiva stipend of $325.00 per month for a ten month period, or a total annual income of $3,250.00. Plaintiff testified that the defendant earned $23,000.00 per year and her father gave them $1,000 a month under a pre-marital compact. From these sums all household expenses, including monthly rental of $1,200 was paid.

Contradicting plaintiff's testimony is a Honda lease application he filed indicating his gross monthly income at $4,800.00 or an annual income of $57,600.00. He lists his occupation as a tutor. Plaintiff explained during his testimony that this figure is incorrect in that he did not read the application carefully. He also stated that although he would tutor if he was awarded custody of his children, that would be unusual, and denied that he was tutoring at the time he filed the lease application, again testifying that his only income was his stipend. Amplifying the explanation, plaintiff testified that he included defendant's income in the $4,800 per month, inferring that his wife was earning $1,800 per month. Assuming this last part to be true, it leaves plaintiff's income of $3,000 a month or $36,000 per year.

The 2004, 2005 and 2006 income tax returns shed no light on the inquiry.

The most credible evidence then is the Honda lease application wherein plaintiff represented that his annual income is $57,600.00 ($4,800 x 12 months) less the $23,000.00 of his wife's income that plaintiff testified he included in the application.

This sets his total income at $34,600.00. It certainly cannot be doubted that the plaintiff told the [*6]Honda agent that his occupation was tutoring.Additionally, plaintiff lists a monthly cell phone expense of $60.00 in his net worth statement, as well as $110.00 per month on toys and gifts for his daughters and $150.00 on school lunches. He also testified that he was paying $325.00 per month in child support. The net worth statements and plaintiff's testimony account for expenses of $645.00 each month. It is impossible, then, that plaintiff's income is only a stipend of $3,250.00 and not in line with the $34,600.00 calculated above.

Since the wife earns nothing and is totally dependent on her parents, the parties total income is $34,600.00, of which plaintiff's basic support obligation is 25% for his two daughters or $8,650.00 per year. The plaintiff is directed to pay this amount to the defendant in monthly increments of $720.80. This award is retroactive to September 17, 2007.

In addition to basic child support, plaintiff shall be responsible for 50% of religious school tuition and fees for his daughters, as well as 50% of any unreimbursed medical expenses.

C.EQUITABLE DISTRIBUTION

The parties have little. Nevertheless, whatever they have must be distributed. Therefore, any jewelry is awarded to the party in possession. The 2000 Buick Century is directed to be sold and the proceeds, if any, equally divided. If the car cannot be sold in its present condition it is to be donated to charity and the mitzvah equally divided.

Since the plaintiff deposited the parties' 2006 income tax refund check of $4,270.00 into his own account he is to refund 50% of that amount or $2,135.00 to the defendant and a judgment may be entered in that amount. The court also finds that the plaintiff retained the security deposit by the tenants of the Lakewood property in the amount of $1,750.00; 50% or $875.00 of which is the property of the defendant, and a judgment may be entered in that amount. The plaintiff is solely responsible for the payment of credit card debt acquired during the marriage.

D.[ADDRESS REDACTED]

On June 9, 2005, the parties agreed that real property located at [ADDRESS REDACTED] was purchased on their behalf. Although neither party disputes this fact, the property was not titled in their names, but in the names of the defendant's aunt and uncle. A side agreement was entered into between the parties to this litigation and the defendant's aunt and uncle to the effect that the defendant's father owns the property.

The purchase of the property was effected by the defendant's father providing a $50,000.00 down payment and the

aunt and uncle taking out a mortgage of $276,400.00. In the ensuing years rental income covered most of the mortgage payments and, throughout the litigation, each party has leveled charges against the other with respect to this property. Defendant claims that plaintiff owes $48,913.61 or 50% of moneys laid out by defendant's father to carry the property.

Both sides now agree that the defendant's father owns the property and the court directs that all parties to this litigation sign and deliver any documents necessary to secure title in his name, as of January 1, 2009.

Of course, everything about this is troubling. Without belaboring this decision further, suffice it to say that defendant seeks a money judgment, not in her favor, but in favor of her father. The fact that the parties' parents have subsidized payment for this home (as well as this litigation) does not make them parties over which the court has jurisdiction. [*7]

Equitably, as well, defendant's father placed a down payment, paid upkeep, and made mortgage payments for property he now owns outright. Since present or future value of this property is unknown to the court, fairness dictates that no further award of money for the upkeep of the property be ordered. (See generally: Zaretsky v Zaretsky, 66 AD3d 885; Peritore v Peritore, 66 AD3d 750; Soles v Soles, 41 AD3d 904; Beece v Beece, 289 AD2d 352; Litman v Litman, 280 AD2d 520).

E.COUNSEL FEES

In this mostly "tedious and unproductive" litigation (Soles v Soles, supra) both parties seek attorneys fees. As indicated above, the protracted litigation in this case has been subsidized by the parties' parents, who are not parties to this suit.

Thus, considering the negligible income of both litigants, the circumstances of the case and the parties in view of everything else set forth in this decision and order, the court, in its discretion, will make no award of counsel fees to either party (DRL §237).

The parties are directed to settle a judgment with Findings of Fact and Conclusions of Law within sixty days.

This is the Decision and Order of the court.

____________________________

Matthew J. D'Emic

J.S.C.