The court held a ten day trial of this divorce action in which both parties sought equitable distribution and plaintiff Leota Susan Branche (Wife) sought child support, maintenance, arrears in pendente lite support and attorneys' fees. The major issues affecting equitable distribution were the parties' requests for separate property credits against various assets, and the contention of each that the other engaged in significant financial waste.

The Wife commenced this divorce action in 2008. The issue of grounds was resolved by an inquest held on July 18, 2011, the first day of trial, at which the court found that the defendant Douglas Holloway (Husband) had established a cause of action for a divorce based on constructive abandonment.

The financial trial ended on October 11, 2011, and the final reply brief was submitted in March 2012. At trial, both parties testified. The Wife also presented the testimony of Jana Handwerk, her investment advisor and insurance agent; Edmond Provder, a rehabilitative counselor and vocational expert; Joan Taback Frankle, a family friend; Scott Branche, her brother; and June Branche, her mother. The Husband presented the testimony of Leonora Luzong, the parties' former nanny; Ann Carlsen, an executive search consultant; Hattie Keys, his mother; Rudolph Clark, the parties' accountant; Steven Goodwin, the Husband's insurance broker and friend; Carl Morton, a close friend of the Husband's; and Arthelbert Louis Parker, a former GE employee and a friend of the Husband's since childhood.

By decision and order dated June 23, 2010, the court deferred to trial its final decision on [*2]those portions of Motion Sequence 6 in which the Wife sought an order directing the Husband to return the artwork he caused to be removed from the parties' homes, or in the alternative, an order charging him with the value of the artwork; and directing him to pay for overtime for the Wife's security detail on the night of July 31, 2009, and the costs of repairing the damage caused to the boiler and entertainment unit at the marital home that evening.

By decision and order dated April 6, 2011, the court deferred to trial those portions of Motion Sequence 11 in which the Wife sought an order: 1) determining that the Husband owes her $44,473 in arrears; and 2) sequestering the Husband's accounts pursuant to Domestic Relations Law §243 to secure payment of the court-ordered support.

The court also deferred to trial its final decision on Motion Sequence 16, in which the Wife sought to hold the Husband in contempt for his violations of the pendente lite order dated December 24, 2009 (the Pendente Lite Order).

Based on the testimony and evidence at trial, the court makes the following findings.

Credibility

During the marriage, neither party disclosed to the other the true extent of the assets each had accumulated. Both of them hid financial documents from each other, both during the marriage and during the discovery process. Both of the parties made misstatements about their financial circumstances, both in papers filed with the court, and at trial. On balance, the Husband's distortions at trial and his dissimulation of his financial situation were far more egregious than the Wife's, but neither comes before this court with completely clean hands.

The court finds that the Husband was neither candid nor credible in his testimony. He was evasive, sparred with the Wife's attorney, and tried to avoid answering questions. In addition, he repeatedly claimed that he was totally unfamiliar with his own finances and his employment benefits, which is simply unbelievable, in view of his financial sophistication, including his having earned an MBA at Columbia University, and in view of the care he took to handle his various accounts personally, including going to some pains to change the mailing address on various accounts. His gaps in knowledge are also inconsistent with his accountant's testimony about the thoroughness with which the Husband routinely provided the necessary information to prepare his taxes. His claim of lack of knowledge of his employment benefits is also undermined by the testimony of his witness and good friend, Mr. Parker, who testified clearly about the Husband's knowledge of all of his employment benefits. The Husband also misrepresented the terms of his employment which began in 2011, claiming at his deposition that he had no entitlement to a bonus, although his employment agreement explicitly gives him the opportunity for two bonuses per year, which, if realized, would triple his earnings. He also made statements which were clearly contradicted by documentary evidence, such as his statement that he did not have a joint account with his mother.

The court draws adverse inferences against the Husband from his many inaccuracies and [*3]omissions on his Net Worth Statements (NWSs), including his failure to attach his tax return for 2010, or even his W-2 form, to his NWS dated June 15, 2011, and from his failure to list on any of his NWSs the property he owns in Pittsburgh, Pennsylvania; his joint bank account with his mother at Citizens Bank in Pittsburgh; his USA Networks Supplemental Benefits Plan; his stock options (even though he was actively liquidating them at or around the time he was executing his NWSs, as he had been doing for many years, and received net proceeds in excess of $1,187,000 between January 2005 and July 2009); and his Annuity Plan. He even claimed that he had never received any statements for his Supplemental Benefits Plan despite the evidence reflecting that statements were mailed to his Post Office Box and his testimony that, if he had received statements, he would "probably [have] thrown [them] out." Among the most outlandish of his claims on his NWSs was his claim on the one filed at the time of trial that he was spending $4,200 per month on a babysitter, even though his sons were then 14 and 16, and the parties had not employed a nanny for more than a year.

The court also draws adverse inferences against the Husband's credibility from his dishonesty in forging his Wife's name on the waiver of survivor benefits on his Separation Agreement from his employer.

The Husband's credibility was also undermined by the frequency with which he answered questions by saying that he could not recall or he did not know, except when questioned regarding something that would further his interests in the matter. To the extent that he had memory loss, he attributed it to being "preoccupied," or suffering from post-traumatic stress disorder allegedly caused by the incident which took place at the parties' home in Scarsdale (the House) on April 15, 2009, which resulted in his arrest and incarceration. He testified that he did not know if he had ever come out of the resulting "fog," but that he was sure that his NWSs were accurate. He often claimed not to be able even to remember testimony he had given only a few days before. Yet he did not produce any medical evidence to support his claim of a mental disorder. For all of these reasons, the court finds that the Husband's testimony was largely not credible.

The Wife also made inconsistent statements. For example, she claimed in her testimony that her payment of $170,000 to her mother was a repayment of loans that her parents had made to her. However, in her contemporaneous note to her own accountant, she stated that $70,000 was a return of funds from her mother, and the additional $90,000 was "to cover her [mother's] housing and living expenses going forward." In yet a third version, at her deposition, she had referred to the money she received from her mother as her mother's savings, not her own inheritance. She referred to this same transaction, in her NWS dated July 15, 2008, as having [*4]been a transfer of only $80,000 to her mother, rather than the $170,000 actually transferred. Equally unbelievable is her assertion in her NWSs that the parties' monthly expenses exceeded $120,000 during the marriage, which would have exceeded their gross income in almost every year.

Despite these inaccuracies, the court finds that the Wife's testimony was generally credible. In particular, the court rejects the Husband's claim that the Wife's action in cashing certain rent checks for the parties' home on Martha's Vineyard (the Vineyard House) constituted dishonest or fraudulent or even criminal conduct; rather, the court finds plausible her explanation that, during the marriage, she routinely deposited checks made out to the Husband with his permission.

The court finds that the following witnesses were credible: Ms. Handwerk; Mr. Provder, the Wife's occupational expert; Ms. Frankle (however, her testimony was not probative of any issue in dispute); and Mr. Parker. Ms. Luzong's testimony was not credible, as she acknowledged on cross-examination that she had made several false statements during her direct testimony. Ms. Carlsen's testimony was not particularly credible, as she acknowledged having not reviewed her records and frequently could not recall information about her purported attempt to help the Husband find a job, which was the subject on which she was called to testify, and her area of professional expertise. Mrs. Keys was not very credible, as many of her answers were contradicted by documentary evidence, and she had very little memory about the issues as to which she was questioned. Mr. Goodwin was not credible because he appeared to tailor both his testimony and the documents he had prepared to what would be useful to the Husband, whom he had known since high school. Mr. Morton's testimony was neither credible nor probative.

Mr. Clark's testimony was not very useful, because he had not reviewed the parties' tax returns before he came to court. In addition, his testimony indicated that he relied on the parties' own statements in preparing their returns rather than insisting on seeing the underlying documents.

Significant Dates

The parties met in June 1988, and were married on June 16, 1990. They have two sons, born in 1995 and 1997.

The parties stipulated that, for equitable distribution purposes, the date of commencement is March 10, 2008, thus resolving a dispute which resulted from their having filed dueling actions in Westchester and New York.

The Parties' Work History

The Wife is 55 years of age. At the time of the marriage, she was 32 and living in a studio apartment in Manhattan (the Studio), which she later used as her office. She is a licensed psychologist, having received a B.A. from Brown University in 1979 and a Ph.D. in clinical psychology from Columbia University Teachers College in 1988. Upon graduating from [*5]Columbia, the Wife ran psychotherapy groups and provided individual therapy for children at the Northside Center for Child Development in Harlem, as well as some additional consulting jobs, resulting in an approximate income of $40,000 per year. She later was employed at Harlem Hospital, and continued to consult, and her income remained in the same range. When the parties married, she moved to Westchester at the Husband's request, which made it more difficult for her to pursue consulting work. She eventually opened her own therapy practice in the Studio, and in1993, moved her office to a one-bedroom apartment in the same building (the Apartment). When the Husband was traveling, she would sometimes stay overnight at the Apartment. The Husband paid first the rent, and later the mortgage, on the Apartment, which was an expense that the Wife deducted from her income.

In 1996, shortly after the birth of their second child, the Wife took a job at White Plains Hospital, which enabled her to be closer to home and to breast feed their new baby, whom she breast fed for two years. She continued to do some consulting and a limited private practice. Before making this change, the Wife discussed her plan with the Husband, and the likelihood that her income would fall as a result. The Husband agreed nonetheless that it was a good idea. For the next several years, her annual income was in the mid-30-thousands. Toward the end of the 1990s, the Wife gave up her hospital-based practice to have greater flexibility, and continued her career in private practice and consulting. By 2004, she was working part-time to accommodate her increased involvement in the boys' activities and their schools. Throughout the parties' marriage, the Wife never reported income in excess of $50,000 per year, except in 1990, when she reported $51,300. In 2010, she reported income of $48,878 in business income. She is an avid runner and in good health.

The Husband is 58 years of age. At the time of the marriage, he was 35 years old and was earning $214,074 per year. He received a B.S. cum laude from Emerson College in 1976, and an M.B.A. in marketing and finance from Columbia University Graduate School of Business in 1978.

In 1978, the Husband was hired as an assistant product manager at General Foods in White Plains, New York where he earned $21,500 per year. Approximately two years later in 1980, the Husband accepted a position as a financial analyst and strategic planner for the CBS Television Network. Approximately 18 months later, CBS transferred the Husband to a new division called CBS Cable as an affiliate sales person, which required that the Husband travel around the country negotiating contracts for various cable systems to carry CBS Cable. About a year later, CBS shut down CBS Cable, and the Husband was hired at Time, Inc. to work on a short-lived news magazine, TV Cable Week.

In December 1983, the Husband took a job with USA Network as Director of Affiliate Relations.^[FN1] The Husband's annual salary at that time was between $75,000 and $100,000. For the next 20 years, his primary responsibility was to expand the company's networks to various cable stations around the country. As at the CBS Network, his work required extensive travel to [*6]negotiate with cable operators to carry the USA Network. In the first decade or so, he was away from home a few nights each week. However, the Husband's work required increasing amounts of travel, and, by 2000, he was away from home more than he was at home. As part of his duties, he attended the Olympics and other major sporting events. The Wife accompanied him for events and conventions when spouses were expected to attend.

During the Husband's tenure at USA Network, which later became USA Network, Inc., the company was owned, at various times and in various combinations, by Time, Inc., Universal Studios, Paramount Pictures, Barry Diller, Viacom, Matsushita, and Seagram's. In 2002, the French conglomerate, Vivendi, created a joint venture which merged Universal Music and Universal Studios, Intl. into USA Networks, Inc. That entity became known as Vivendi Universal, which is the name that then began to appear on the Husband's paycheck. In 2004, the Vivendi joint venture dissolved and General Electric purchased the company, which became known as NBC Universal.

The Husband's compensation consisted of a base salary and bonuses, pursuant to a series of contracts, which were usually of three years in duration. His bonuses were calculated based upon his success in distributing the USA Network, which in turn generated increased revenues for the company.

Between 1998 and 2002, the Husband's job title changed from Executive Vice President of Distribution to President of Distribution, and his responsibilities expanded to overseeing the distribution of all USA Networks. In 2003, the Husband completed the Cable Executive Management Program at Harvard University. In 2004, he was given a new title, President of Cable Investments. In 2008, the Husband received another promotion and was given the title of President at NBC/Universal for Network Distribution, Affiliate Partnerships and Marketing.

The Husband was active in professional organizations. In the 1990s, he became active in the Cable Television and Marketing Organization (CTAM), attending conventions and moderating panels, and ultimately becoming its President. He was also active in the National Cable Television Association. He was also very involved in Emerson alumni activities, and a member of Zeta Boule, an elite organization of top professional African Americans. The Husband also received a number of honors for his work, including, in 2000, the Vanguard Award, an honor bestowed by the cable industry, an award in 2001 by the National Association of Minorities in Cable (NAMC), and many others. In 2007, he was listed as one of the top ten African Americans in Hollywood in an article in Black Enterprise Magazine.

In 2009, his employment was terminated effective May 29, 2009. The Separation Agreement which set out the terms of his termination provided him an annual income of $650,000 for two years, until February 27, 2011, to be paid in bi-weekly net checks of approximately $13,000 until May or June 2010, which were then increased to approximately $14,000. Under the Separation Agreement, the Husband also agreed to begin receiving the GE Retirement Allowance of $5,000 per month starting on March 1, 2011. As part of his severance package, he was given an agreement concerning his retirement benefits, which included an [*7]option of providing his spouse with a survivor benefit. On July 10, 2009, the Husband checked off the waiver of the survivor benefit and forged the Wife's signature on the form.^[FN2]

The Husband's gross annual earnings from 2000 through 2010 were as follows:

During the first two years after being terminated, the Husband did not conduct a reasonable job search. He did not avail himself of the out-placement services offered to him by GE until December 2010. He only asked his colleague Ann Carlsen to assist him informally, as a favor, and did not retain her to assist him.

On or about April 11, 2011, the Husband was hired at Ion Media as President of Multi Channel Distribution. Under his employment contract, he earns a base salary of $350,000 per year, and is eligible for two bonus opportunities annually, each of an amount equal to his base salary, making him eligible to earn $1,050,000 per year. This is consistent with his prior earning capacity of approximately $1,000,000 per year. From May 6 to May 20, 2011, he received monthly net earnings of $17,000. He also continues to receive his $5,000 per month (pre-tax) pension from G.E., and is supplied with a car by his employer, as he has been at all of his jobs. Nevertheless, he made no payment of support to his Wife in the month of May 2011.

Marital Lifestyle

At the time of the marriage, the Husband owned a house in White Plains, New York (the White Plains House) which was a three-bedroom home, encumbered by a mortgage from Citicorp., and which had an equity value of $25,000. After the marriage, the Husband paid the White Plains House mortgage with marital funds. He also had an interest in an investment called [*8]Uptown Investment Associates (Uptown), and a 1965 Mustang convertible.^[FN3]

Upon marriage, the Wife moved into the White Plains House. The move to Westchester resulted in a decrease in the Wife's earnings, which the Wife pointed out to the Husband, but he felt strongly about her moving to his home in Westchester, so she agreed.

The parties' lifestyle during the early years of the marriage was comfortable. The Husband drove a BMW and his Mustang, and the Wife drove a Toyota Camry. They took frequent luxurious vacations, ate out frequently and went to the theater, jazz concerts and fund-raising galas. They employed a housekeeper. When they ate at home, the Wife cooked. They socialized frequently with the Husband's business colleagues. The Husband belonged to the Westchester Clubmen.

Immediately after their older son's birth, the parties hired a full time nanny, Leonora Luzong. When the Wife went to work in New York City, Ms. Luzong and their young son often accompanied her, and they would stay at the Apartment during the day. Sometimes, they would also stay there overnight, especially when the Husband was traveling for business. The Wife enrolled the child in various activities. The parties began to rent summer homes in Martha's Vineyard for several weeks each summer.

On August 26, 1997, the parties purchased the five-bedroom House, and moved in during late October of 1997. At the Husband's direction, the deed was drafted to place sole title in his name,^[FN4] but, at the Wife's insistence, they executed a second deed at closing, transferring it to their joint names. The purchase price was $810,000 and the parties took a mortgage in the Husband's name with Citibank, which was subsequently assigned to Chase Mortgage. The Husband additionally took a Home Equity Line of Credit (the HELOC) on the House in the amount of $275,000 in October 2001. By January 2005, the credit line had been increased to $500,000, and there was a balance on it of $250,000. At the time of the commencement of this action, the HELOC had a balance of approximately $350,000. After the date of commencement, the Husband took substantial withdrawals from the HELOC, of which the Wife was not aware, with the result that the balance on the HELOC was $491,000 by January 2011. He used the withdrawals from the HELOC to pay his attorney ($8,000), the children's attorney ($2,000), the maintenance for the Apartment and a payment to the Bank of America ($10,000), although the Wife was not aware that they had any accounts with the Bank of America and none were [*9]disclosed on any of the Husband's NWSs. The House was worth $1,700,000 as of April 15, 2011. The carrying costs, including utilities, are approximately $9,300 per month.

In 1998, the parties sold the White Plains House for $270,000, of which $174,864 was used to pay off the outstanding mortgage balance with Citicorp. No evidence or testimony was introduced to trace the net proceeds of the sale of $83,121.^[FN5]

In 1997, the parties' older son was enrolled in a local private pre-school at a cost of $8,000 per year, paid for by the Husband. Their younger son later attended the same preschool. The Wife commuted into Manhattan with their younger son to nurse him between her consulting jobs.

The Wife ran the home and was very active in the children's secular and religious activities. She did the cooking and cleaning for the family, and also taught Ms. Luzong to cook. The Wife arranged and took the children to their doctors' and dentists' appointments, and arranged and participated with them in their play groups and other activities. She arranged mother-child workshops and volunteered in the children's preschool, enrolled them in swim classes, took them to church and helped to run the Jack and Jill program that the children participated in. While the children were in pre-school, the Wife ran a Stranger Awareness Program, read to the children, went on class trips and took the children to local music and Gymboree programs. During this period, the Husband continued to travel extensively for his business and professional endeavors.

The parties' standard of living continued to improve. They both were members of local gyms and joined a country club, at a cost of a few thousand dollars per month. The Wife continued to attend business and social functions with the Husband. During the summer, the parties began renting luxury homes on the water in Martha's Vineyard for two to three weeks each summer at a cost of between $3,600 and $5,000 per week. The children began attending summer camps costing approximately $8,000 per child, and were enrolled in various extracurricular activities, including sailing and swimming lessons. Both children were on swim teams, and ran competitively. All of these activities continued at the time of trial, and were previously paid for by the Husband.

Both children have asthma, and on child has a congenital heart defect which requires periodic visits to the cardiologist that the Wife has always taken him to. In 1998, in part due to one child's severe asthma condition, which involved a brief hospitalization, the Wife stopped her hospital-based practice and only continued her private practice, resulting in her having a minimal income.

Both children attended public schools. The Wife was very involved with the children's elementary school, including being active in the PTA, serving as a class mother, running safety and cultural programs, teaching an Alternative Arts and Crafts program, serving as a volunteer parent in the lunchroom and running after school clubs. The Wife also ran various cultural activities at the school, particularly focused on African American history and culture. She was involved with the boys' homework and projects and routinely read to them at night. She participated in all of their activities including swim team, and often swam with them. She involved the boys in charitable activities such as book drives, clothing drives and running a lemonade stand to raise money. She scheduled the children's doctor's appointments and was solely responsible for taking the boys to the cardiologist, hematologist and dermatologist.

On February 2, 2002, the Husband purchased a residence in Pittsburgh, Pennsylvania (the Pittsburgh Home) for $64,500, which is now worth $67,000. The Pittsburgh Home is subject to a mortgage held by Citimortgage with a principal balance of $51,218 as of March 2008 and $45,059 as of September 8, 2010. The Husband has made the mortgage payments since at least 2005. The deed lists the owner as "Douglas V. Holloway, Unmarried." When the Wife asked the Husband why he listed the title that way, he responded that if she "ever tried to divorce" him, "some man could not take the house." The Husband's mother, Hattie Keys, resides in the Pittsburgh Home. The Husband arranged for many of his financial statements to be sent to that address. The Husband also has title by inheritance to a lot in Pittsburgh (the Pittsburgh Lot), adjacent to the Pittsburgh Home, worth $1,200 at the time of trial.

On February 20, 2003, the parties purchased the Apartment for $296,800, subject to a mortgage with Chase with an initial balance of $270,000 and a principal balance of $186,883 as of May 5, 2011. As of April 21, 2011, it was worth $635,000. The monthly charges for mortgage, taxes and maintenance are approximately $2,600. The Wife gave the Husband a key after September 11 so that he could use the Apartment in the event of an emergency, but he rarely went there. In early 2005, the parties discussed renovating the Apartment. The Wife retained her friend Liz Conn to design plans. In the fall of 2007, the Wife paid Ms. Conn $32,000 for her work in developing those plans. However, they never undertook the renovation.

On June 1, 2005, the parties purchased for $685,000 a parcel of undeveloped land in Massachusetts on which they built the Vineyard House which was completed in March 2006 and cost approximately $520,000. The Vineyard House has four bedrooms, and sits on a large piece of land overlooking a private pond. The Vineyard House is subject to a mortgage held by JPMorgan Chase with an outstanding principal balance of $837,422.10 as of June 15, 2011. As of April 29, 2011, the Vineyard House was valued at $964,000. The parties reflected its cost basis on their joint tax returns as $420,000. Through and including the summer of 2008, after the commencement of this action, the parties enjoyed portions of their summer at the Vineyard House with the children and rented it to tenants for large portions of the summer, deriving additional income for the family. The Vineyard House was rented during part of the summers of 2006 through 2011, for rents up to $4,800 per week. Generally, the Husband cashed the checks. On two occasions, during the summer of 2007, checks arrived while the Husband was out of [*10]town, and the Wife told him that she was going to endorse them and deposit them. This was consistent with their longstanding practice, under which the Husband had authorized her to endorse and deposit checks made out to him that arrived when he was traveling. After the Wife deposited the checks, she then sent an amount equal to the amount of the checks to her mother. When the Husband returned and learned of this, he became very angry and threatened to have the Wife put in jail. The Wife returned the money to him.

From 2000 through 2007, the parties' standard of living continued to improve. They took family vacations to St. Thomas, St. Croix and Mexico, and also took ski trips. The parties attended the theater, movie premieres and professional events, and enjoyed the use of the Husband's corporate box at the U.S. Open Tennis Tournament as well a corporate box at Madison Square Garden. The children received private lessons in virtually any activity they were interested in. In 2004, the parties bought an $88,000 luxury Mercedes (still in the Husband's possession) and an Acura. The Wife participated in social functions with the Husband's colleagues. The parties attended charitable fund-raisers together, and the Wife supported and participated in the Husband's alumni functions and award ceremonies at his alma mater, Emerson College.

During the spring of 2007, the parties began experiencing serious marital problems.

In 1995, the Wife acquired an Investment Account, jointly held with her brother Scott Branche, using funds that he gave her for that purpose. She also deposited into that account $10,000 from a personal injury settlement of $13,000. She repaid the funds to her brother in or about October 29, 2007, together with a birthday gift of $10,000, for a total of $40,000.^[FN6]

In or about 1983, the Wife received an inheritance of approximately $170,000 from her grandmother. She did not provide any evidence that she retained any portion of that inheritance as of the date of the marriage. During the marriage, the Wife received gifts from her parents in the approximate amount of $150,000 to $170,000 in varying amounts and over various time periods. At the end of October 2007, the Wife transferred about $170,000 to her mother, which she characterized variously as a return of the gifts that her parents had given her, a repayment of the loan they had given her, a transfer of the inheritance from her grandmother or contributions to her mother's living expenses. I find that the Wife's transfer of $170,000 to her mother was a transfer of marital assets in contemplation of divorce.

During the marriage, the Husband encouraged the Wife to make investments and open retirement accounts in her sole name, using her earned income and the money that he gave her, so that she could learn investing and financial management. Accordingly, the Wife opened various mutual fund accounts and brokerage accounts in her sole name, using her earned income and funds transferred to her by the Husband. The Wife arranged for the statements on many of her investment accounts to be sent to her at the Apartment because she usually met with her financial advisor in New York City, so it was convenient to have the records at the Apartment. The court does not credit the Husband's claims that he did not know about these accounts and that the Wife had the account statements sent to the Apartment to hide them from him, since she reported the dividends and interest from these accounts on the parties' joint tax returns which the Husband signed. Indeed, on their joint returns in 2006, the parties reported interest and dividends on some ten accounts and funds which do not appear on the Husband's separate returns in 2007. Given his suspicious nature, which was well in evidence during the trial, and his MBA, it is inconceivable that the Husband did not notice that the Wife had investments on which they were paying taxes in 2006 and years prior.

In 2007, the Wife used $645,000, comprised of about $400,000 from mutual funds and brokerage accounts in her sole name and the proceeds of another annuity, to purchase a tax deferred annuity in her sole name with an account number ending in 4075, naming the Husband as the primary beneficiary. She also deposited an additional $148,000 of marital funds into the annuity in the first quarter of 2008. The annuity had decreased in value for the first seven years after purchase, and was thus worth $625,662 at the time of trial. On her application for issuance of the annuity, she listed her address for the purpose of account statements as the Apartment. On the application for the annuity, she listed her "gross family income" as $75,000, which was her estimate of the sum of her earned income, which she hoped would reach $50,000 that year, and her income from dividends and interest. The Wife purchased this annuity as part of a conservative investment strategy, on the advice of her investment advisor, in order to protect her principal, avoid the volatility of mutual funds and to take advantage of the beneficial tax treatment of this annuity.^[FN7]

The Husband established two life insurance policies. In 1999, he created the Holloway Irrevocable Insurance Trust, which holds a $500,000 variable universal life policy that names the Wife and the boys as beneficiaries, and had a cash value of approximately $33,806 as of July 29, 2011. In 2004, he took over insurance policies that had been established by his employer, and acquired a universal life policy (the 5254 Policy), with a face value of $1,000,000 and, as of trial, a cash value of $83,139.13, and a loan balance of $31,347.35, as a result of a loan taken out in 2010.

From 2005 through 2008, the Husband transferred $134,659 into his joint account with his mother at Citizens Bank, which he did not disclose on any of his NWSs.^[FN8] He also had a joint account with his mother, which had a balance of $55,700 as of March 2008. The Wife did not learn of it until the records were subpoenaed during this action.^[FN9]

The Husband had a 401K account with Universal Music Group (worth $1,420,000 as of March 31, 2011), a USA Network Deferred Compensation Plan (worth $308,000 as of December 31, 2010), and a USA Network Supplemental Benefits Plan (worth $1,372,000 as of April 30, 2011), which the Wife did not learn of until the divorce. He did not disclose the USA Network Deferred Compensation Plan on any of his NWSs.1 ^[FN10]

From 2004 through 2006, the Husband sold Vivendi Universal Stock for a total of $2,386,424. In January 2008, the Husband liquidated options resulting in net cash proceeds to him of $62,200, and post-commencement, he liquidated options generating net cash proceeds to him of $131,628, for a total of $193,828. Within days of making such sales, the funds were transferred to another account and debited from the Husband's account. The Husband did not disclose on any of his NWSs any liquidation of Vivendi Universal stock within the three years preceding the commencement of the action, and he testified during trial that he was unaware of having acquired any Vivendi stock. The Husband did not disclose to the Wife either the Vivendi stock plan, the GE stock plan or the GE stock option plan. Indeed, he used to complain to his Wife that he did not receive stock options. He did not even disclose his exercise of the stock options to his accountant, even though the exercise of the options should have been reported on his tax returns.

In late 2007, the Wife learned that the Husband had opened a Post Office box in Scarsdale. Around the same time, the Husband closed out the parties' joint account that the Wife had always used for household expenses. He also told the Wife that she would have to start spending all of her own money on various large household expenses.

During the marriage, the Husband had various accounts for which he had the statements [*11]sent to the Pittsburgh Home or the Post Office box in Scarsdale. He explained this by saying that he had started having them mailed to his mother's home before the marriage when he did not have a stable address. He further explained that he continued to have them mailed to the Pittsburgh Home after the marriage because he did not trust the Wife. However, his claim that he was having them sent to the Pittsburgh Home before the marriage is not credible because he did not buy the Pittsburgh Home until 2002, 12 years after the marriage. Moreover, the Wife was not aware of these accounts before the commencement of this action, and the Husband did not reveal them on his NWSs. Therefore, I find that he was having the account statements sent to the Pittsburgh Home in order to hide them from the Wife. As of February 28, 2008, the accounts had balances as follows: account number ending in 6681: $474,215; account number ending in 4854: $111,122; and account number ending in 6239: $45,823.1 ^[FN11]

Shortly before the commencement date, on February 15, 2008, the Husband received a bonus from employment in 2007 in the amount of $368,543.78 which he deposited into his checking and savings accounts at in his sole name, account number xx8568.1 ^[FN12] From February 15 through February 20, 2008, the Husband made 31 electronic transfers totaling $305,081, including over $13,200 transferred to his mother. One transfer was a payment to the Bank of America in the amount of $25,000 despite the fact that neither of the parties showed on their NWSs any accounts (loan, credit card or bank) at Bank of America. Many of these transfers were effectuated by balance transfer checks written to "cash" (or blank) and endorsed by the Husband. The check dated February 5, 2007 indicates that the Husband's address is a PO Box in Scarsdale, despite the undisputed testimony that he lived at the House until April 15, 2009. The defendant failed to account for these funds, nor did he offer any credible testimony or adequate explanation for why theses transfers were made, especially to his mother and the Bank of America.

From 2005 through and including 2010, the Husband had an interest in a bank account located at Citibank, NA, titled in the name of Blackstar Media, LLC. At no point during trial, disclosures or discovery did the Husband disclose the existence of any bank account held by him at Citibank, NA or any interest in any entity called Blackstar Media, LLC.

Post Commencement Events

Both parties sought custody, with the result that the court appointed first an attorney for the children and then a forensic evaluator. The parties settled the issue of custody by a so-ordered stipulation dated September 24, 2010, which provides that the parties have joint legal custody; as to any major issue, the parties will consult and, in the event of a disagreement, the Wife has final decision making authority; the Wife has primary residential custody; and the Father has supervised weekly therapeutic access with the children, with the intention of moving toward liberal unsupervised access over six months. At the time of trial, the Father had not seen the boys since March 2011.

After commencement, the Wife charged flowers on many occasions to the Husband's credit card, without his authorization, with a total cost of $5,000. These included flowers sent under the boys' names to relatives, as was the family's custom; and flowers sent by the Wife to the Husband's mother for Mother's Day; to the Husband's brother for his birthday; to babysitters, as thank you gifts; and to church members, as part of the Wife's duties as a deacon of the church.

In 2009, the Wife inherited from her father an investment account, which was worth $2,553 as of September 2010.

During the marriage, the Husband acquired accounts at the Radio, TV and Communications Federal Credit Union (FCU) and the NBC Employees Municipal Credit Union (NBC), each of which remained open and active during the pendency of this action but neither of which was disclosed on any of the Husband's sworn NWSs. As of March of 2008, the total value of the two accounts was $5,559. The Husband also failed to disclose to his Wife his account at Maxim Brokerage (for which the statements were sent to his office) worth $49,912 as of February 29, 2008;1 ^[FN13] his Vivendi Universal Retirement Account Plan with an account balance as of December 31, 2007 of $36,240, and his GE Savings and Security Program, worth $236,038 as of July 5, 2011.

On April 15, 2009, an incident occurred which resulted in the issuance of a one year order of protection against the Husband which remained in effect until April 16, 2010. Since then, the Wife and children have lived in the House, and the Husband has resided in the Apartment, a situation which was ratified by the execution of a so-ordered stipulation on April 23, 2009.

On October 7, 2010 and on February 27, 2009, the Husband wrote checks to himself from his investment account, for $15,057 and for $50,000 respectively, which he endorsed at a check cashing company in Roxbury, Massachusetts and at a TD Bank in New Jersey. The Husband provided no information at any time during this litigation about a bank account at TD Bank, although he admitted that he had, at one point, had an account at TD Bank. He offered no plausible explanation as to why he would have large checks issued to his order and cash them out of state. He failed to account for these withdrawals other than by saying he spent the funds to pay expenses.' The Husband also purchased other money orders at check cashing stores, some of which he used to pay the Wife's support. The Husband's explanation that he had to engage in this complicated procedure because he did not have check cashing privileges at the investment account institution is totally implausible.1 ^[FN14] Rather, his behavior in withdrawing funds and then cashing them in several states cannot be explained by any purpose other than an attempt to hide funds and to prevent his funds being executed on.

In June 2009, the Husband liquidated a portion of his GE VUE Deferred Compensation Plan, resulting in a payment to him of $118,500. He had not previously disclosed this account to the Wife, nor did he disclose this liquidation.

On or about July 31, 2009, the Husband returned to the House to remove some additional items. While he was there, there was considerable damage to the House, including the entertainment cabinet being pulled out of the wall and flooding in the basement. In addition, he removed several paintings from the House which he has never accounted for. He also removed his wine collection.

The court issued a pendente lite order dated December 26, 2009 and entered on January 6, 2010 (the Pendente Lite Order), which modified a decision made on the record on November 5, 2008, when the parties still lived together. The Pendente Lite Order: (1) directed the parties not to "transfer, sell, convey, secret, dissipate, encumber or otherwise dispose of assets without the written consent of both parties or order of the court, except in the ordinary course of business and to pay ordinary living expenses;" (2) directed the Husband to pay the Wife interim support of $18,000 per month, of which $5,000 was for child support, $12,000 was maintenance and $1,000 was toward retroactive sums due; (3) directed the Husband to pay certain expenses directly, including "at least the minimum" on the HELOC; (4) directed the Wife to pay other expenses directly, including the mortgage on the House; (5) directed the Husband to pay $45,000 toward the Wife's attorneys' fees; and (6) provided that the Husband had authority to manage the rental of the Vineyard House, provided that he gave the Wife copies of leases and documentation of expenses and rental payments within five business days of receipt.

Notwithstanding the restraint on encumbrances in the Pendente Lite Order, the Husband attempted to refinance the Apartment in 2010. By order dated July 23, 2010, the court found the Husband in contempt because of his failure to turn over to the Wife the documents concerning the rental of the Vineyard House,1 ^[FN15] and also directed him to pay the Wife's attorneys $152,875. The Husband has not paid spousal support and child support since at least April 2011, except pursuant to an Income Deduction Order.

At the time of trial, the Wife and children lived in the House, but the Wife had not paid the $8,000 monthly mortgage in about five months. As of July 2011, the Wife's expenses, for herself and the boys, were approximately $26,813 per month, taking into account that she no longer had child care expenses (which the Husband had unilaterally terminated) and had cut back on vacations.

During the pendency of the action, the Husband made minimum payments on the HELOC but also accessed the credit line in larger amounts, by taking advances on the credit line, which he used, inter alia, to pay the attorney for the children, and his former attorneys, which increased the balance from $362,495.22 at commencement to $491,558 by January 2011. The Husband repeatedly failed to provide medical insurance and/or prescription cards for the children, to pay for the children's orthodontic procedures during the pendency of this action, to pay for their tutoring and extracurricular activities, and to pay an outstanding bill to their son's cardiologist. On February 25, 2011, the Husband removed the Wife from his employer's health insurance plan.

Although the Husband claimed at trial that he suffers from a variety of psychological problems, including severe depression stemming from this divorce and post-traumatic stress disorder, he offered no medical evidence in support of either claim.

Upon obtaining access to the Vineyard House in 2009, the Wife discovered that all of the artwork had been removed, including six paintings by Myrna Morris, a painting by Michelle Rene, one photograph of Telegraph Hill, one photographic collage of sports memorabilia, two model sailboats and a framed newspaper article about the Wife. The missing paintings were worth at least $2,470.

In 2010, when the Wife arrived to use the Vineyard House with the children, all of the interior closets that were usually closed to renters had been locked and the locks had been changed. This made it impossible for the Wife and children to use their personal belongings, toiletries, household staples or the children's beach toys. The Wife also discovered a bin containing her clothing that was in the basement with "rat poison on it." The Husband barred the Wife and children from using the Vineyard House in 2011.The Husband did not attach to his NWS dated June 24, 2011 a copy of his 2010 W-2.

In or about September 2010, the Husband attempted to encumber a Life Insurance Policy acquired by him during the marriage under account ending in 4971, and requested in writing that the check be sent to him at his Post Office box. The Husband did not disclose in any manner that he was attempting to liquidate this asset pendente lite. The check was inadvertently sent to the House and was intercepted by the Wife, who applied for an order of sequestration. By Order dated January 21, 2011, the funds, in the amount of $75,367, were sequestered pursuant to DRL §243, and were used to pay obligations of the Husband pursuant to the Pendente Lite Order. In effect, this resulted in the Wife being paid support out of marital funds. The Husband took the position that he had no obligation to make any payments while the sequestered funds were being used to pay the Wife's pendente lite support. During the marriage the Husband acquired another life insurance policy with a cash surrender value of $146,486 as of August 1, 2011. He encumbered that policy on August 26, 2010 by taking a loan in the principal amount of $30,000. By Order of this Court dated April 12, 2011, the Husband was specifically restrained and enjoined from transferring or encumbering life insurance policies. Nonetheless, on or about August of 2011, the Husband attempted to take another loan on his second life insurance policy. In addition, on August 24, 2010, the Husband changed the secondary beneficiaries from his own children to his three godsons, and made his mother the primary beneficiary. The Husband was current on his premium payments on both policies. On August 11, 2011, while the trial was going on and the day after his insurance agent testified to his August 2010 change in beneficiary on the policy, the Husband again changed the beneficiaries of the policy to his mother and sons equally, with his godsons and the Holloway Trust as secondary beneficiaries.

In or about January 2011, the Husband stopped paying basic child support. He stopped paying spousal support in May 2011, and he has paid few of the children's add-on expenses. By order dated April 6, 2011, the court granted the Wife's application for an income deduction order directing deduction of $10,132.09 every two weeks from the Husband's severance payments; and for an order directing the Husband to pay the Wife's counsel $15,000 by April 30, 2011. Consistent with this, the court signed Income Deduction Orders directing first GE and later ION to deduct that amount from the Husband's biweekly paychecks.

Ms. Luzong quit working for the parties on June 22, 2010. The Wife then wrote her a letter of recommendation for her next job. Ms. Luzong asked the Husband for financial help and he agreed to pay her $880 per week. Even after she obtained new employment on or about August 9, the Husband continued to pay her $880 per week until late October, for a total of 18 weeks, totaling $15,840.

Assets

The court finds that the following assets are the Husband's separate property: the Pittsburgh Lot; an investment in the name of Uptown Investment Associates, A Partnership; and the 1965 Mustang. The court finds that the Mutual Fund account is the Wife's separate property. The court further finds that the following are marital assets, including those assets which had been liquidated, dissipated or not accounted for by either party:

ATTORNEYS' FEES

As of the time of trial, the Wife's former attorneys, Kasowitz, Benson Torres & Friedman (Kasowitz), had billed the Wife a total of $439,759, of which the Wife has paid $208,279, and the Husband has paid $220,000. Part of the payment by the Husband was made as a result of an execution by the Marshall against the Husband's investment accounts, by which Kasowitz was paid a total of $129,516.05. The Wife believed that the billings by Kasowitz were excessive, and, in particular, that the amounts incurred on various issues were disproportionate to the value of the issues.

As of the date of trial, the Wife had paid $50,500, and the Husband had paid $120,000, to the Wife's current attorney, Laurence Greenberg, and the Wife owed Mr. Greenberg an additional$21,331.33.

At the time of trial, the Husband had paid his current attorney about $150,000, and owed counsel $146,189. He did not submit billing records for prior counsel.

Equitable Distribution

Marital property is defined in Domestic Relations Law Section 236(B)(1)(c) as "all property acquired by either or both spouses during the marriage...." Separate property is defined [*13]as "[p]roperty acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse..." (Domestic Relations Law Section 236[B][1][d]). The court has used these definitions and the evidence adduced at trial in identifying and classifying the property of the Husband and Wife.

The Wife has established that her Windsor II Account is her separate property, as she inherited it from her father. The Husband has established that Uptown Associates is his separate property, as the Wife conceded that he had owned it before their marriage. She also conceded that he had inherited a residence, and that he owned the 1965 Mustang before the marriage. The court finds that all of their other assets are marital.

Thus, a passive asset is properly valued at the date of trial whereas an active asset may be more appropriately valued at an earlier time. The court noted "[a]n asset such as, for example, a business, might suddenly appreciate in value due solely to the efforts of the owner spouse. If a considerable period of time has elapsed since the date of commencement or the date of separation, the court might be justified in establishing a valuation date earlier than the date of trial" (Id.).

Accordingly, the court has valued the parties' assets as set forth in the attached spreadsheet.

The premise of the equitable distribution law as it has been written and interpreted by the courts of this state is that the marriage is an economic partnership (O'Brien v O'Brien, 66 NY2d 476 [1985]). The success of this partnership depends not only on the contributions of the wage earner spouse but on various contributions made by the non-titled spouse. In Price v Price (69 NY2d 8 [1986]), the Court of Appeals recognized this concept, stating:

In Conner v Conner (97 AD2d 88 [2nd Dept. 1983]), the Appellate Division in the Second Department stated:

According to the Assembly memorandum in support of the new law [citations omitted]: The basic premise for the marital property and alimony (now maintenance) reforms of this legislation (§236) is that modern marriage should be viewed as a partnership of co-equals. Upon the dissolution of a marriage, there should be an equitable distribution of all family assets accumulated during the marriage and maintenance should rest on the economic basis of reasonable needs and the ability to pay. From this point of view, the contributions of each partner to the marriage should ordinarily be regarded as equal and there should be an equal division of family assets, unless such a division would be inequitable under the circumstances of the particular case.

The court has considered the factors set forth in Domestic Relations Law §236(B)(5)(d) in making its decision as to the equitable distribution of the marital property, as follows.

1) Income and Property at date of marriage and at commencement: At the time of the

2)Duration of the marriage and age and health of the parties: This is an 18 year marriage.

3) Need of custodial parent to occupy or own the House: In light of the Husband's minimal

4) The loss of inheritance and pension rights: NA

5) The loss of health insurance benefits upon dissolution of the marriage: On February 25,

6) An award of maintenance: See below.

7) Direct and indirect contributions: The Wife made substantial contributions to the family as

8) Liquid or non-liquid character of the property: The parties' retirement funds and annuities

9) Future financial circumstances of the parties: The Husband's probable future financial

10) The difficulty of valuing marital assets: As set forth in the spreadsheet, some of the marital

11) The tax consequences to each party: No evidence was presented on this issue.

12) The wasteful dissipation of assets: The Husband liquidated assets, dissipated assets and

The Husband wasted assets most egregiously by failing to look for a job after being terminated from NBC/Universal in May 2009. He failed to provide proof of any significant job search, and only availed himself of the job search assistance provided by his prior employer in early 2011. It is therefore not surprising that he only found a job in the spring of 2011, just after his receipt of his last installment of severance pay.

13) Transfer in contemplation of action: See (12) above.

14) Any other factors: The Husband has essentially abandoned his two sons, thus placing the

entire responsibility for their day to day care on the Wife.

The Wife asks that the court award her 100% of the marital assets, in view of the Husband's egregious economic fault, in that he:

Was evasive both at trial and during discovery;

     Made transfers in contemplation of this action, including over $130,000 transferred to his mother;

    Secreted marital assets;

Provided tangled financial records;

Consistently failed to disclose substantial marital assets on his sworn NWSs;

Withdrew monies from marital accounts and closed marital accounts, both in contemplation of this action and during its pendency, and failed to adequately explain these withdrawals;

Failed to make any efforts to find employment after he lost his position as President at NBC/Universal for Network Distribution, Affiliate Partnerships and Marketing; and

In particular, the Wife asks that she be awarded:

The Husband asks that the court do the following:

The total value of assets subject to equitable distribution in this matter is $7,764,166, not including the Husband's GE Retirement Allowance currently in pay status, the 800 shares of stock appearing on his most recent NWS, his GE Pension Plan and Supplemental Pension Plan, and the contents of the parties' homes, for which values were not available. The Husband has dissipated, liquidated and/or failed to account for $2,010,610, or approximately 26% of the marital assets, and has also removed personalty from both the House and the Vineyard House. The Wife has dissipated, liquidated and/or failed to account for $518,212 of marital assets.

Having considered the statutory factors, the court will award the Husband, in addition to his separate property, the Apartment (and its contents), the Pittsburgh Home, the Mercedes, the Lexus, the two credit union accounts, his account number xxx-6681, the Blackstar account, his joint account with his mother, his GE S & SP account, and his life insurance policies.

The court will also issue an order nullifying the waiver of survivor benefits on which the Husband forged the Wife's signature, and direct that the Husband elect that the Wife receive the maximum pre-retirement benefits as surviving spouse, and the maximum joint qualified survivor annuity, under all retirement plans, including without limitation the pre-retirement death benefits under the Retirement Allowance, GE Pension Plan and GE Supplemental Pension Plan.

The Wife is awarded 50% of the GE Pension Plan and GE Supplemental Pension Plan. The Husband is also directed to pay the Wife 50% of the sums received by him under his GE Retirement Allowance to date, and for so long as he receives this benefit. The court further awards to the Wife the House, the Vineyard House, their contents, 400 shares of GE stock, and the balance of all remaining cash accounts and retirement assets.

The form of this award is intended to be as simple as possible and to require the least transactions consistent with a fair result, and the fewest obligations on the part of the Husband to make payments to the Wife, since the likelihood of his voluntary and complete compliance seems small, given the history of this litigation.

The court also directs the transfer to the Wife, as trustee, of the UGMA and UTMA Accounts and the American Funds College Accounts for the children, with the restriction that withdrawals can only be made towards payment of the respective child's college tuition and related expenses when they matriculate to college, and when made, they shall be on notice to the Husband.

Maintenance

The Wife contends that she is entitled to maintenance in the amount of $12,000 per month for a period of 10 years, plus payment of COBRA health insurance extension coverage for three years. The Husband contends that she is not entitled to any maintenance at all because she received significant interim support of $18,000 per month during the pendency of this case, and [*17]she is gainfully employed. He contends that she earns $75,000 to $100,000 per year, based on her having listed her earning capacity in her application for her annuity as $75,000. As discussed above, the court finds that there is no basis to find that she can earn more than $50,000, which is the maximum that she has earned during the marriage.

In awarding maintenance, the court has considered the factors enumerated in Domestic Relations Law §236(B)(6). Those factors not already discussed in the equitable distribution section above are discussed below.

(3) the age and health of both parties: discussed above.

(4) the present and future earning capacity of both parties: discussed above.

(5) the need of one party to incur education or training expenses: not applicable.

(6) the existence and duration of a pre-marital joint household or a pre-divorce separate

(8) the ability of the party seeking maintenance to become self-supporting and, if applicable, the

(11) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents

Child Support

The Wife contends that she is entitled to child support in the amount of $8,000 per month, based on the actual needs of the children. The Husband argues that the court should set child support based on a cap on his income of $250,000. In making this argument, he only refers to his base income from ION of $350,000, but does not refer to either his pension income of $30,000 or his bonus. He argues that the court should impute income to the Wife in the amount of $105,000, representing the $75,000 which she claimed as her income on her application for an annuity, and the $30,000 she will receive from the Husband's pension. The Husband contends that she is entitled to $62,500 per year in non-taxable child support, with the statutory add-ons divided between them pro rata, based on their incomes. He is willing to maintain health insurance for the parties' children.

This court, pursuant to Domestic Relations Law §240(1-b), has considered the calculations delineated in Domestic Relations Law §240(1-b)(c) as well as the factors set forth in Domestic Relations Law §240(1-b)(f) which permit a deviation from the calculations set forth in Domestic Relations Law §240(1-b)(3).

The first step in determining child support is to determine each parent's income. The Wife's adjusted gross income for the purposes of child support is $176,000, representing the $50,000 which is her approximate annual income, the $30,000 which she will receive from the Husband's pension, and the $96,000 she will receive as spousal support. The Husband's adjusted gross income for the purposes of child support is $934,000, including his imputed earned income of $1,000,000 and his annuity of $30,000, and subtracting his spousal support obligation of $96,000. The combined parental income for purposes of child support is $1,110,000. The prorated responsibility between the parents for child support obligations is 84% for the Husband and 16% for the Wife. The appropriate child support percentage is 25%. Applying a child support percentage of 25% to the first $136,000 of combined income, the Husband's annual obligation would be $28,560 per year, or $2,380 per month for basic child support.

However, since the combined parental income exceeds $136,000, the court must decide whether to make an award based on the additional income and, if so, whether to apply the statutory formula and/or rely on the factors set forth in DRL § 240(1-b)(f) (see A.D. Scheinkman, McKinneys Practice Commentaries, C 240:27A; DRL §240[1-b][c][3]). Where the court awards support above $136,000, irrespective of the statutory method used, the court must articulate a rationale for its determination (Matter of Cassano v Cassano, 85 NY2d 649 [1995]; Anonymous v Anonymous, 12/8/99 NYLJ 27 (col 6) affd, 286 AD2d 585 [1st Dept 2001]).

The court also determines that it is appropriate to apply the statutory percentage formula to the amount over $136,000. Even upon consideration of the paragraph (f) factors, the court concludes that reliance on the statutory percentage formula is neither unjust nor inappropriate.

Applying the statutory formula to the total combined income of $450,000, and attributing to the Husband his pro rata obligation of 84%, the court finds that Husband's child support obligation shall be $94,500 per year, to be paid in monthly installments of $7,875 on or before the first day of each month commencing on the first day of the month following entry of the judgment.

With respect to "add-on" costs, the Husband shall maintain the children on his health insurance policy and shall pay 84% of this cost, which shall be determined by subtracting from the cost to cover the Husband and the children under the Husband's policy the cost of covering the Husband alone on his policy. Commencing 30 days after entry of judgment, each party shall [*18]contribute to any non-reimbursed medical costs, with the Husband to pay 84% and the Wife to pay 16% of these costs.

Commencing with the summer of 2013, the Husband shall contribute 84%, and the Wife 16%, of the costs of the children's summer activities.

The Husband is entitled to a credit for any "add-on" child support costs he has paid for to which the Wife now owes a contribution. Each party shall be entitled to take one of the children as a deduction for tax purposes; after they are no longer entitled to claim the older child as a dependent, they shall alternate, with the Wife having the right to take the younger child in the first year, and alternating thereafter. The Husband shall maintain a life insurance policy for the benefit of each child in the amount of one million dollars until that child is emancipated, and shall be required to provide documentation to the Wife on January 1, March 1, July 1 and October 1 of each year that the life insurance policy is still in full force and effect.

Pendente Lite Support Arrears1 ^[FN17]

Under the Pendente Lite Order, the Husband was directed to pay $17,000 in support, allocated as $5,000 per month basic child support, $12,000 per month taxable spousal support and $1,000 per month as arrears. Out of that sum, the Wife was required to make payments on the House mortgage. The Husband was additionally directed to pay at least the minimum monthly payments due on the HELOC, as well as the mortgage and common charges on the Apartment and the mortgage and taxes on the Vineyard House.

The Wife did not receive support pursuant to the Pendente Lite Order since the month of January 2011. Accordingly, basic support is due and owing from the Husband to the Wife of $255,000 through and including April 2012, less a credit for any payments received by the Wife through Income Deduction Order. The Wife shall be granted a Money Judgment against the Husband in that amount.

With respect to add-on expenses, the Pendente Lite Order provides:

Sequestration

The Husband has demonstrated a consistent pattern of failing to abide by the orders of the court with respect to paying pendente lite support, the children's add-on expenses and the Wife's attorneys' fees, and he has secreted marital assets and manipulated his income to thwart the enforcement efforts of the Wife. DRL §243 provides:

Whether to compel security is within the court's discretion. Security is not usually compelled unless or until the payor party evidences a pattern of nonpayment (Adler v Adler, 203 AD2d 81 [1st Dept 1994]), such as a documented history of failing to make timely payments without the payee party having to resort to litigation (Brinckerhoff v Brinckerhoff, 53 AD3d 592, [2nd Dept 2008]). However, where that showing has been made, and other enforcement devices are ineffective or inefficient, sequestration is appropriately invoked (see Adler, supra; Berger-Carniol v Carniol, 273 AD2d 427 [2nd Dept. 2000]).

In a case directly on point, the court held that the posting of security for payment of temporary maintenance and child support, or in absence of such undertaking, sequestration of real estate belonging to the husband was in order, where several enforcement motions and entry of money judgments for prior arrears and counsel fee award had required prior sequestration of [*20]funds, and those sequestered funds were virtually exhausted (Merrick v Merrick, 154 Misc 2d 559, affd 190 AD2d 516 [1st Dept. 1993]). The court finds that the Wife in this case has made the required showing.

The amount of security should be fixed bearing in mind the amount of the periodic obligation and the period of time over which that obligation is payable (where it is for a fixed duration) or the period of time for which it is likely to be payable (where the obligation is indefinite and terminable on the death of the payor or payee) (Dunbar v Dunbar, 309 AD2d 780 [2nd Dept 2003]). The use of sequestration as an enforcement device was directed in Rose v Rose (138 AD2d 475 [2nd Dept 1988]). There, the husband had repeatedly failed to comply with court imposed child support obligations. The wife was required to bring numerous applications to enforce the orders and to obtain arrears judgments. The trial court had ordered the sale of the House and the Appellate Division held that one-half of the husband's interest in the net proceeds should be sequestered, with the wife to serve as sequestrator. Rose confirms that sequestration is an available enforcement remedy where a party has failed to make payments required for support and/or counsel fees.

In the case at bar, the defendant's conduct has been so severe that sequestration is appropriate. He is obligated to pay child support until July 30, 2019, and spousal support for eight years after entry of judgment. The court directs that his interest in the GE S & SP be sequestered, with the Wife as sequestrator, until all of the Husband's support and counsel fee obligations have been met or otherwise secured.

Domestic Relations Law §237 provides that in an action for a divorce the court may award counsel fees "to enable that spouse to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and the respective parties." Indigence is not a prerequisite to an award of counsel fees pursuant to Domestic Relation Law §237 (DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987] ). In considering an application for an award of counsel fees the court shall consider the "equities and circumstances" of the case before it (Basile v Basile, 122 AD2d 759 [2d Dept 1986]).

The Husband contends that the Wife is not entitled to an award of counsel fees pursuant to DRL §§237 and 238, because the Husband has already paid $310,000 toward attorneys' fees incurred by her, and the Wife will have more than sufficient funds from which to pay her attorney upon her receipt of equitable distribution.

The Wife contends that she is entitled to an award of counsel fees in the amount of $392,270. She notes that she has an outstanding bill for attorneys' fees to her current attorney of $21,331.33. In view of the distribution of assets, as set forth above, the court will direct the Husband to pay the outstanding amount due. Therefore, the Husband shall pay $21,331.33 to the Wife's attorneys within 60 days after entry of the judgment. If he fails to do so, the Wife's attorney may enter a judgment against the Husband upon his affirmation, with no further notice required.

In my order dated June 23, 2010 partially deciding Motion Sequence 6, I directed that I would decide at trial the factual issues decided by this motion, "to wit, whether the Husband removed or caused to be removed any of the artwork from the House and from the Vacation Residence; whether he caused any unnecessary delay in the removal process on July 31, 2009; and whether he damaged the boiler and the entertainment unit."

The Wife presented no testimony to support her claims that the Husband had caused unnecessary delay in the removal process on July 31, 2009 and that he had damaged the boiler. She did testify that he damaged the entertainment unit, but did not produce any evidence as to the cost of repairing it. However, she testified persuasively that he had removed from the Vineyard House six paintings by Myrna Morris, a painting by Michelle Rene, one photograph of Telegraph Hill, one photographic collage of sports memorabilia, two model sailboats and a framed newspaper article about the Wife. Accordingly, the Husband is directed to return those to the Wife within 30 days of the entry of the judgment. If he fails to do so, the clerk is directed to enter a judgment against him in the amount of $2,470 upon submission of the Wife's affidavit, with no further notice to the Husband required.

MOTION SEQUENCE 16

By Order to Show Cause signed on June 17, 2011, the Wife sought an order holding the Husband in contempt for his willful and deliberate failure to comply with the Pendente Lite Order, and committing him to jail for that failure; and directing him to pay any and all outstanding medical bills, provide proof of insurance for plaintiff and the children and provide insurance cards and claim forms.

In her motion papers, she alleged that the Husband had not paid her support as required by the Pendente Lite Order since February 2011; that her medical coverage had been cancelled effective February 28, 2011; that her sons' coverage had been cancelled as of June 4, 2011; and that the Husband had not paid certain outstanding medical bills for her sons, totaling $3,556.38. The Husband responded that the health insurance for his sons was in full force and effect, and that there might have been a gap in coverage for the Wife because of her alleged failure to provide him with requested information. In reply, she stated that she only began to receive support when the Husband began a new job in April 2011, and she began to receive $8,600 per month, by income deduction order, against the $17,000 per month due to her.

Where contempt is especially wilful, it is criminal (Jud L §750[3]; see also Matter of Department of Envtl. Protection of City of NY v Department of Envtl. Conservation of State of NY, 70 NY2d 233, 240 [1987]). Because criminal contempt is an expression of disrespect toward public justice, the permissible punishments for criminal contempt, a fine of up to $1,000 paid to the treasurer of the county where the issuing court sits (Jud L §791) or imprisonment of up to 30 days (Jud L §751[1]), are designed to "protect the integrity and dignity of the judicial process and to compel respect for its mandates" (Department of Housing Preservation and Development of the City of New York V Deka Realty Corp., 208 AD2d 37 at 42 [2d Dept 1995] [*21][citing King v Barnes, 113 NY 476 [1889]]).

The Husband's defense to the contempt motion is that he was unable to pay the amounts due. My finding that he did not make a substantial effort to find work after being terminated in May 2011 significantly undermines that defense. In addition, I note that he made many discretionary payments during the time that he was failing to pay support to his children, including his monthly payments of $3,500 for his life insurance premiums during a time when he had changed the beneficiaries to include neither his Wife nor the children, and that, according to his NWS filed immediately before trial, he was spending $750 per month on dining out, $600 per month on lunches, $1,844 per month for his three cars, $1,773 for his country club, $1,800 for his "hobbies" and $2,000 per month for charitable contributions. In light of his choice to spend money on discretionary and frivolous items for himself instead of supporting his wife and children, and his failure to make a meaningful attempt to find work, I reject his defense that he was unable to afford the payments due. In view of the repeated and egregious nature of his violations of my order, I find that his conduct constitutes criminal contempt, and I sentence him to 20 days incarceration, to be served on weekends, starting on the first weekend after entry of the judgment in this matter.

Accordingly, it is hereby

ORDERED that the Husband is directed to return to the Wife within 30 days of the entry of the judgment the following: six paintings by Myrna Morris, a painting by Michelle Rene, one photograph of Telegraph Hill, one photographic collage of sports memorabilia, two model sailboats and a framed newspaper article about the Wife; and it is further

ORDERED that, if he fails to do so, the clerk is directed to enter a judgment against him in the amount of $2,470 upon submission of the Wife's affidavit, with no further notice to the Husband required; and it is further

ORDERED that the Husband is adjudged to be in contempt of the Pendente Lite Order; and it is further

ORDERED that the Husband is sentenced to a period of incarceration of 20 days, to be served on weekends, and to begin on the first Friday following entry of the judgment of divorce; and it is further

ORDERED that all other relief sought but not granted above is denied.

Dated:April 19, 2013ENTER: