The Plaintiff/WIFE (hereinafter referred to as "Plaintiff"), residing in Brooklyn, New York, commenced this action on April 29, 2009, with a Summons with Notice in Queens County. On January 8, 2010, a Verified Complaint was filed with the Affidavit of Service seeking a judgment of divorce on the grounds of abandonment pursuant to Domestic Relations Law (hereinafter "DRL") §170.2.

Defendant/HUSBAND (herein referred to as "Defendant") residing in Brooklyn, New York, did not interpose an Answer. On October 22, 2009, a Note of Issue was filed for an [*2]uncontested divorce. On December 7, 2009, a Judgment of Divorce together with all ancillary relief was signed. On January 25, 2010, Defendant filed an Order to Show Cause to vacate the default judgment and all the relief granted therein. On December 7, 2010, the parties agreed to vacate the default on all ancillary issue and set the matter down for an "Otto Hearing."By agreement, grounds remained the same.

This is one of those cases that involved an acronymous contested custody battle and division of assets wherein neither party agreed to the color of paper. While the motion was pending, parenting time and discovery schedules were set.Several motions interrupted the process of moving quickly to the hearing. An Attorney for the Children was appointed and Forensic evaluation was ordered. Due to an allegation of safety, on July 29, 2011, an Order on consent was issued, temporarily transferring Custody to Defendant with visits to Plaintiff. On August 5, 2011, the visits with Plaintiff were suspended. On August 9, 2011, supervised visits were ordered to Plaintiff.Plaintiff changed counsel and her new counsel filed an appeal to stay the Order of Temporary Custody to Defendant which was denied.

On December 20, 2012, a Pre-Trial Order was issued pursuant to Section 202.16 of the Uniform Rules.The trial commenced on July 8, 2013. Upon failure to comply with the Pre Trial Order and the Uniform Rules for Trial Courts, sanctions were issued. The issues at trial are custody, visitation, child support and equitable distribution. No one seeks maintenance. Testimonies were adduced from the parties themselves, the forensic expert, the children's school counselor, the emergency room doctor, and one of the children's care provider's.Based on the credible evidence adduced at trial, the Court makes the following findings of fact and conclusions of law.

"Oh what a tangled web we weave, When first we practise to deceive!" by Sir Walter Scott, Marmion, Canto vi. Stanza 17. Scottish Author & Novelist (1771 - 1832).

. On its surface this case appeared to be a story book tale but the evidence is quite real and children are involved and seriously hurt.

The parties met in China and got married on July 2, 1996, in the United States. Plaintiff is 46 years old in good health. Plaintiff speaks fluent English and Mandarin. Plaintiff has a college education. Defendant is 52 years old in good health. Defendant is fluent in Mandarin and limited in English. The language spoken at home is Mandarin. They have two children, ages nine and seven. Both children speak English and Mandarin. During the marriage, both parents cared for the children with partial assistance of a child care provider.

Plaintiff was employed at a laundry business. Defendant was employed at a jewelry factory. During the marriage, the parties engaged in joint ventures pooling their financial resources to purchase and run dry cleaning and laundry businesses in Brooklyn and Manhattan.Plaintiff left her former employment and only worked at their businesses. Defendant worked at their businesses and continued his former employment. They accumulated significant financial sums that were kept at different financial [*3]institutions, hidden in the business and in their home. Plaintiff was the primary person responsible for the financial paper work. Defendant took care of fixing the machines. In addition to the businesses, Plaintiff and Defendant own two rental real properties located in Pennsylvania, which are titled in their individual names, and several investment accounts.

The marital residence is known as the one bedroom apartment in Brooklyn. Plaintiff and Defendant with their children resided in this apartment and slept together in one bedroom. There is no contact to Queens County except the location of Plaintiff's attorneys.

Approximately 2008, Plaintiff engaged in a series of covert actions that started during the marriage when she hired a student named Qi Ying Weng (hereinafter referred to as "Larry" as he is called by the parties), 20 years her junior to work in the Brooklyn business. Soon after Larry's employment, an affair ensued between Plaintiff and Larry. While Defendant was away from the business, Plaintiff rendezvoused with Larry. Soon thereafter in 2008, Larry was introduced to the children as a family member. The children participated in activities with Plaintiff and Larry and were encouraged to call Larry "Daddy." Knowingly, the children called their father (Defendant) Papa. Plaintiff explained that the term "Daddy" was endearing because the children enjoyed being with Larry since Defendant was not spending much time with the family.

On April 29, 2009, Plaintiff commenced this action in Queens County outside the county of the parties' residence while she continued to live and work with Defendant. The affidavit of service showed personal service on Defendant but no picture of the actual person served was attached pursuant to DRL §232.Plaintiff sought an absolute divorce on the grounds of abandonment and custody of the two children. Plaintiff did not seek any ancillary relief with respect to the businesses, investment accounts and real properties. There was no Answer or appearance by Defendant.Plaintiff filed a note of issue for uncontested divorce and included with her papers the parties joint tax return for 2008 which had an annual income of $37,753.00 of which $12,000.00 was attributed to business income. In addition, Plaintiff filed a purported stipulation that included only Plaintiff's signature for DRL §177 notice, which was the operable statue.Plaintiff submitted final papers for findings of fact and judgment of divorce seeking divorce under DRL §170.2 for "cruel and inhuman treatment" instead of "abandonment" (emphasis added). On December 7, 2009, a default judgment was issued under DRL §170.2 for "abandonment." Although the final papers stated that the parties continue to live together, sole custody was granted to Plaintiff and visitation to Defendant. Child support was awarded based on Plaintiff's income of $12,000.00 and Defendant's income of $24,022.00. It is undetermined where these figures were obtained other than the child support worksheet sworn to by Plaintiff.Although the tax return showed business income, Plaintiff did not seek any equitable distribution or maintenance. There was no other ancillary relief granted in the default judgment. In addition, there were no reported [*4]incidences of domestic violence.

The web spun wider. Sometime in late January 2010, Defendant found out from a friend that he was divorced. On January 22, 2010, when the parties were still living together, Defendant confronted Plaintiff to inquire about the status of their marriage but Plaintiff called 911 and reported a domestic violence incident against Defendant alleging that Defendant was following and threatening her and that they were divorced. Two days later on January 24, 2010, in front of the children, Defendant was arrested and a Temporary Order of Protection was issued for a full stay away removing Defendant from the marital residence. In addition, Defendant was barred from entering the businesses. Defendant consented to Adjournment in Contemplation of Dismissal and a final Order of Protection with the same terms.

On that same day of Defendant's removal, Larry moved into the marital residence to cohabit with Plaintiff and the children.On January 25, 2010, Defendant filed a motion by Order to Show Cause to vacate the default judgment and dismiss the action based on lack of personal jurisdiction. The Order was signed February 1, 2010, with a return date of March 2, 2010. On February 8, 2010, Plaintiff and Larry got married, unbeknownst to the children. Plaintiff said she forgot to tell the children and then explained that the children were too young to understand. However, Plaintiff, Larry and the children continued slept in the same bedroom that Plaintiff and Defendant shared. Six months after the marriage, Plaintiff told the children that she was married.

And the web of the tale spun outward. By December 2010, Plaintiff was married and pregnant. On December 7, 2010, given the status of Plaintiff, Plaintiff's then attorney and Defendant's attorney executed a stipulation agreeing to withdraw the motion seeking to dismiss and vacate the judgment based on lack of personal jurisdiction and instead have an "Otto Hearing" on all the ancillary relief wherein setting a discovery schedule. In the stipulation, the parties agreed to keep in place the custody to Plaintiff and grant Defendant visitations.

Sadly, the web spun out of control. An incident occurred on June 8, 2011, with Larry hitting the daughter with an object severely bruising her upper leg, all of which occurred in front of the son.Plaintiff did not report the incident claiming she was unaware although the bruise was visible on the child's leg. The incident occurred when Plaintiff was leaving for work and the children became noisy awaking Larry to say goodbye to their mother. On or about June 9, 2011, upon seeing the child during his visits, Defendant noticed the black and blue bruise on the child's leg and immediately took the child to the emergency room. The hospital reported the incident to Administration for Children's Services. The District Attorney's Office in Brooklyn also investigated the incident. By some strange reason the charges were dropped based on a debacle as to who was responsible for making the children available to the District Attorney's office.On June 10, 2011, Defendant filed a petition in Kings County Family Court to protect the children. On June 13, 2011, a Temporary Order of Protection was [*5]issued against Larry with a full stay from the children. Defendant did not return the children to Plaintiff. On July 29, 2011, Defendant filed an Order to Show Cause to change custody. Upon Defendant's application and on consent, temporary custody was given to Defendant. Plaintiff retained new counsel who unsuccessfully appealed to stay the Temporary Order of Custody. The Court further ordered supervised visitations to Plaintiff but the children's fear became even more acute based on Plaintiff conduct in revisiting the children's story and interjecting Larry as the innocent person into the conversation. Although the children's accounts of how the injury occurred were consistent to the doctors, their school counselors and their attorney, Plaintiff continued to deny the children's account and engaged in tangled inconsistent stories of the incident to protect Larry and point the blame at Defendant or stating that the child fell on stairs. The stair story belies reason since Plaintiff could not explain where the stairs were located. Notably, during one of the supervised visits, Plaintiff made an unfounded allegation to have Defendant arrested in front of the children.

On January 18, 2013, Larry accepted responsibility, apologized to the children and consented to a Final Order of Protection for two years with the terms of a full stay away which expires 2015.There is no communication between the parents. Plaintiff continues to reside with Larry. The children are in dire fear of Plaintiff and more so Larry. They refuse to see or speak with their mother under any circumstances. The children are solidified in their belief that their mother refused to protect them, encouraged them to lie and love Larry more than she loves them.Plaintiff is still in denial of Larry's conduct and refuses to accept and believe the children.

The web casted dollar signs. The issue of equitable distribution of marital assets in this proceeding is as complex as the parties' marriage. The parties were married on July 2, 1996, and lived in a rental apartment.It is undisputed that sometime into 1998 or 1999, the parties purchased a laundromat located on Montague Street in Brooklyn (hereinafter referred to as "Montague Laundry"). Although the parties dispute the annual income derived from Montague Laundry, they admittedly derived enough income to purchase two residential properties in Pennsylvania during the marriage from which they receive rental income. They kept the proceeds from their businesses either at the business, at home and in financial institutions. Notably, the joint tax return showed minimal income reported to Internal Revenue Service (hereinafter referred to as "IRS"). Not surprising, the monies held in the businesses and at the marital residence all disappeared sometime around the time Defendant was removed from the marital residence and businesses. No one has stated the exact sum and whether it was reported to IRS. Additionally, in 2007, they purchased and operated Sky Cleaners in Manhattan (hereinafter referred to as "Sky Cleaners"). Although the parties sold their interest in Sky Cleaners in or about 2008 and 2009, they continued to operate Montague Laundry. Curiously, after Defendant filed his motion, in March 2010, Montague Laundry, the business with the most income, located on Montague Street in Brooklyn, was destroyed [*6]by fire. Plaintiff received the insurance proceeds. None of the proceeds were shared with Defendant.Plaintiff claimed she kept the insurance proceeds to pay the expenses for the business.There is no evidence of how the insurance proceeds after the fire were used. In June 2010, upon payment of the insurance proceeds to Plaintiff, she purchased a cleaner on Montague Street (hereinafter referred to as "Montague Cleaners"), which she presently operates with her new husband. Allegedly, Plaintiff claimed she received loans from Larry who is a student and his friends who are also students to open this business. There is no evidence of any loans. From Montague Cleaners, Plaintiff purchased two other businesses, New Spring Cleaners in January 2012 and Manhattan Cleaners and Tailor in August 2012. Plaintiff has not shown any proof of the source of the money used to make these purchases. The only available moneys were the insurance funds, the hidden money and the income from Montague Laundry. Defendant currently operates and owns twenty percent of a laundry, known as Mars Laundry. Defendant claims that he acquired his interest in Mars Laundry from his sister, for the sum of $26,000.00.Defendant further claims that he owes his sister $26,000.00.Other than Defendant's statement of net worth there is no other proof of this loan.

In addition to the residential rental properties and businesses, the parties had accounts with financial institutions, both jointly titled and individually titled with other family members, including HSBC, TD Ameritrade, Max International, China Trust, Citibank, and Great Eastern Bank.Again, there is no evidence that the moneys for these accounts were from any other sources other than the businesses and rental income outlined above. Both parties have life insurance policies with benefits in the sum of approximately $250,000.00 each. Defendant also holds a 401(k), from his employment with a jewelry factory during the marriage.

"O! many a shaft, at random sent,

Finds mark the archer little meant; And many a word, at random spoken, May soothe or wound a heart that's broken!"

The applicable standard in determining who is the appropriate parent is the "best interest of the child" after considering all the circumstances in total that "will promote the child's welfare and happiness" (See, Eschbach v Eschbach, 56 NY2d 167, quoting Friederwitzer v Friederwitzer, 55 NY2d 89). Based on the facts and circumstances of this case, Sole Legal and Residential Custody is more appropriate to Defendant. Plaintiff resides with her new husband against whom there is a full stay away order of protection from the children. The children continue to be in fear of their mother and refuse to see [*7]her. There is no communication between the parents. Plaintiff sugar coats the incident and refuses to acknowledge it occurred.Plaintiff has failed to see the impact on her children of the rapid introduction of Larry as "Daddy" into their lives and in their father's bed the same day he was removed from the home. In addition, Plaintiff failed to confront the issue of the physical and emotional scarring on her daughter and emotional scarring on her son who saw the incident.Defendant's attitude is endearing to the children by his language of constantly reminding them that he will protect them. Although nurturing, Defendant is not helping the children move beyond the incident and find ways to forgive their mother. Defendant is over compromising of his love and care to and with the children which cause them to continue to preserve their fear and negative feelings of their mother.Sadly, both continue to manipulate their children with their hate for each other and their selfish objectives.

The testimony of the Forensic evaluator is poignant and informative of how to weave this family back into a workable relationship for the benefit of the children. The findings in the forensic report mirror the testimony at trial. This case involves all the adjectives that create emotional damage to children. The forensic expert's recommendations are credibly focused, detailing the severe problems of both parties, their misplaced perception and blindness of reality and truth, and the emotional impact on their children.Plaintiff denies reality. Defendant is stuck in time and refuses to move on and uses a monolithic approach on how he views Plaintiff. Both Plaintiff and Defendant have to acknowledge their faults and work toward repairing a healthy relationship with their children for the benefit of the children.

Immediately at the conclusion of the trial, for the benefit of the children and in their best interest to have their mother in their lives, the Court ordered therapy for the parents and the children. The Order continues the same in full force and effect. The Court received a status report that was shared with the attorneys and there are signs of progress. Initially, the children refused to see and speak with Plaintiff. Now, there are signs of positive change. There are still significant challenges for the therapist to address.

Plaintiff and Defendant shall continue individual and family therapy to address the recommendations in the forensic report. They may consult with the therapist regarding the earliest time the therapist recommends for visits outside of therapy. Plaintiff may make an application at any time during the therapy sessions for visits to be determined by the Court based on a report from the therapist and after Plaintiff has completed individual therapy. Any application must be consistent with the Order of Protection now in place against Larry.

CHILD SUPPORT

New York Domestic Relations Law (hereinafter referred to as "DRL") �240 1(a) directs the Court to enter an order of child support in matrimonial proceedings. While the Court must consider the circumstances of the case, and the best interests of the child, DRL �240 1-b (a) states that awards of child support shall be in accordance with the [*8]Child Support Standards Act as codified in DRL �240 1-b.

The Court must calculate each party's annual income. Annual income is defined as gross income as should have been or should be reported on the party's most recent tax return reduced by FICA, including Social Security and Medicare taxes, New York City locality taxes actually paid and other statutory deductions. The parties' incomes are then combined to calculate the combined parental income. The parties' combined parental income, up to $136,000.00 is multiplied by the applicable child support percentage. The resulting amount is the parties' basic child support obligation, which shall be prorated in the same proportion as each parent's income is to the combined parental income. Although the income cap was changed effective January 31, 2014, by the Child Support Modernization Act, Chapter §343, Laws of 2009, by amendment to Family Court Act §413 and DRL §240 pursuant to Social Services Law §111-i(2)(b) to $141,000.00, this change is not applicable to this case commenced and tried prior to January 2014. The Court shall determine the amount of child support for the amount of the combined parental income which exceeds $136,00.00. The Court is required to consider the factors enumerated in DRL §240 1-b (f) and/or the applicable child support percentage. The factors enumerated in DRL §240 1-b (f) include: the financial resources of the parties and the child; the physical and emotional health of the child and his/her special needs and aptitudes; the standard of living the child would have enjoyed had the marriage or household not been dissolved; the tax consequences to the parties; the non monetary contributions that the parents will make towards the child's care and well-being; the parents' educational needs; a determination that the gross income of one parent is substantially less than the other parent's gross income; the needs of the non-custodial parent's children from whom the non-custodial parent is providing support but are not subject to the instant action and whose support is not deducted from the non-custodial parent's income in determining income; expenses incurred by the non-custodial parent in exercising visitation; and any other factor the Court determines relevant in each case.

Where the Court finds that the non-custodial parent's pro rata share of the basic child support obligation is unjust or inappropriate, the Court shall direct the non-custodial parent to pay such amounts of child support as the Court finds just and appropriate. The Court shall set forth, in a written decision, the factors it considered, the presumptive child support obligation and the reasons that the Court did not order the presumptive child support obligation. To determine whether a non-custodial parent's pro rata share of the basic child support obligation is unjust and inappropriate, the Court shall consider the factors in DRL §240 1-b (f).

The fuzzy math paradox.

To determine the parties' income, the Court first turns to the parties' tax returns. According to Defendant's statement of net worth, filed with the Queens County Clerk on June 24, 2010, the parties' joint tax returns reflect incomes in the sum of $30,558, $43,832.00 and $37,753.00 for the years of 2006, 2007 and 2008, respectively. The [*9]reported annual incomes included sums derived from Defendant's employment, rental income from the Pennsylvania properties and income derived from Montague Laundry. At trial, however, both parties testified that Montague Laundry derived more income than reported on their tax returns. While Plaintiff initially testified that Montague Laundry netted approximately $3,000 to $5,000.00 monthly as income, she later conceded that Montague Landry derived monthly income in the sum of approximately $8,000.00 to $9,000.00.Conversely, Defendant testified that Montague Landry generated approximately $10,000.00 to $15,000.00. During the marriage, the parties purchased two investment properties, other businesses, and invested substantial sums of money in investment accounts. Admittedly, there were large sums of monies held at the businesses and at the marital residence.It is clear that the parties' failed to report their true income on their taxes.

The Appellate Division, Second Department has held, "a court need not rely upon a party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated future potential earnings" (Wesche v Wesche, 77 AD3d 921, 923 [2010]). Moreover, "a court need not accept a party's account of his or her finances when that account is not believable" (Blaise v Blaise, 241 AD2d 680, 682 [2d Dept 1997]). A court has "considerable discretion to attribute or impute income to a parent based upon his or her ability to earn sufficient means to pay child support, particularly where, as here, the inability to establish that parent's income is directly attributable to inaccurate financial records for which he was responsible" (Id at 682).

Plaintiff's 2012 W-2's reflect an annual income of $17,300.00 of which is attributed to $13,200.00 from Montague Cleaners, $2,100.00 to New Spring Cleaners and $2,00.00 to Manhattan Cleaners and Tailors, Inc. Although Plaintiff and her new husband's respective 2012 W-2's reflect joint income of $22,800.00 and $7,800.00 from Montague Cleaners and New Spring Cleaners, respectively, Plaintiff testified that both businesses generate approximately $3,000.00 each per month, which Plaintiff and her new husband equally divide. Furthermore, Plaintiff incredibly testified that within one year, she and her husband saved approximately $20,000.00 from Montague Cleaners profits to purchase New Spring Cleaners. Plaintiff later conceded that on her reported income of $34,000.00 in 2012 and her reported expenses, she was unable to save $20,000.00 within one year.

The evidence shows that the Montague Laundry was a high earning business and Plaintiff primarily handled the finances. There was substantial income handled by both Plaintiff and Defendant.Montague Cleaners is located on the same street and neighborhood as the destroyed Montague Laundry. Plaintiff and her new husband are named sole owners on all three businesses each generating substantial income in cash as was during the marriage with Defendant.Similarly, the income reported to IRS by Plaintiff and Larry on their joint tax return does not mirrors the testimony of the available resources to their disposal as shown at trial. Plaintiff did not put into evidence any [*10]financial records for the businesses. Thus, based upon the incredibility of Plaintiff's testimony regarding her income, Plaintiff failure to produce any financial documents at trial other than her statement of net worth which is inconsistent with her testimony, the false and incomplete statement in her final papers in 2009, Plaintiff's control of the finances in both marriages, the Court imputes income to Plaintiff. Comparing the income as it was during the marriage, the income potential of similar businesses, the rental income, the sum of $8,500.00 per month is imputed to Plaintiff, as reasonable and fair based on the facts and circumstances in this case. Thus, Plaintiff's annual income is calculated in the sum of $102,000.00.

Likewise, Defendant's 2012 tax return reflected an annual income of $18,00.00, as reflected on his W-2 from Mars Laundry.Defendant failed to report rental income received from the Pennsylvania property and failed to disclose any profits he received as a twenty-percent (20%) shareholder of Mars Laundry on his tax returns. Curiously, although Defendant's updated statement of net worth reflects annual expenses in the sum of $38,760.00 and an annual income of $39,000.00, Defendant has approximately $2,000.00 in a savings account opened in June 2010, the source of which is "post marital income." Thus, Defendant's annual income is determined to be the sum of $41,000.00. The Court declines to deduct Social Security and Medicare taxes from the parties' incomes as each has failed to report and reflect their true income to IRS.

The parties' incomes have been determined as, $102,000.00 and $41,000.00, respectively. The combined parental income is calculated in the sum of $143,000.00. The applicable child support percentage is twenty-five percent (25%) as the parties have two (2) children under the age of 21 years. Multiplying the applicable child support percentage of twenty-five percent (25%) by the combined parental income up to $136,000.00 results in a basic child support obligation of $34,000.00. Plaintiff's pro rata share of the basic child support obligation is seventy-one percent (71%) of the obligation, as her proportionate share of the combined parental income is seventy-one percent (71%). Accordingly, Plaintiff''s annual child support obligation, up to the first $136,000.00 of the combined parental income is $25,560.00 annually or $2,130.00 monthly, or $983.00 bi-weekly. The sum by which the combined parental income exceeds $136,000.00 is $7,000.00. The excess combined parental income in the sum of $7,000.00 multiplied by the applicable child support percentage of 25% results in the amount of $1,750.00. Plaintiff's pro rata share of this sum is $1,225.00 annually or $102.08 monthly. Assuming arguendo that the Court applied the applicable child support percentage to the excess income, Plaintiff's basis child support obligation is the sum of $26,785.00 annually or $2,232.08. The Court declines to award child support beyond $136,000.00. The cap of $136,000.00 is not unjust and inappropriate. This finding is based on the totality of circumstances adduced at trial, the needs of the children being met and their standard of living is being maintained.

Child Support Add-Ons [*11]

DRL §240 1-b ( c)(5)(v) states that the Court shall pro rate each parent's share of reasonable unreimbursed health expenses not reimbursed or paid by insurance, in the same proportion as each parent's income is to the combined parental income.

Thus, Plaintiff shall pay seventy-one percent (71%) of the children's unreimbursed health expenses, including but not limited to, medical, psychological, psychiatric, therapeutic, dental, orthodontic, optical and pharmaceutical expenses. Said expenses include all co-pays for medical and dental appointments and prescriptions. Defendant must provide proof of all unreimbursed health expenses within ten (10) days of his payment of unreimbursed health expenses or within ten (10) days of receipt of notification that a payment of an unreimbursed health expense is due. Plaintiff must pay her portion of the unreimbursed health expenses within ten (10) days of receipt of proof of Defendant's payment of any unreimbursed medical expenses or notice that payment is due. Plaintiff shall make payments for unreimbused health expenses directly to Defendant.

DRL �240 1-b ( c) (4) provides that the Court shall pro rate each parent's share of child care expenses in the same proportion as each parent's income is to the combined parental income.Said child care expenses are expenses incurred where the custodial parent is "working, or receiving elementary or secondary education, or higher education or vocational training which the court determines will lead to employment."

It is undisputed that Defendant works, and as a result, incurs child care expenses. Thus, Plaintiff shall pay seventy-one percent (71%) of the child care expenses incurred as a result of Defendant's employment. Defendant must provide proof of payment of child care expenses within five (5) days of his payment or within five (5) days of notification that payment of child care expenses is due. Plaintiff must pay her portion of the child care expenses within five (5) days of receipt of proof of Defendant's payment of a child care expense or notice that payment is due. Plaintiff shall make payments of child care expenses directly to Defendant.

EQUITABLE DISTRIBUTION OF MARITAL PROPERTY

New York Domestic Relations Law (hereinafter DRL) � 236(B)(5)(a) provides that in a divorce proceeding, the Court shall determine the parties' rights in their separate or marital property and shall provide for the disposition of such property in the final judgment of divorce. Although DRL � 236(B)(5)(b) provides that separate property shall remain separate, DRL � 236(B)(5)( c) provides that marital property shall be equitably distributed between the parties considering the circumstances of the case and of the parties. Marital property is defined in DRL � 236(B)(1)( c) as, "all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action." Significantly, the Appellate Division, Second Department has held that assets acquired after the commencement of a divorce action which are the product of a sale or exchange of marital property are categorized as marital property (Vora v Vora, 268 AD2d 470 [2d Dept 2000]). Separate [*12]property, which is expressly excluded from the definition of marital property, is defined in DRL �236(B)(d) as:

(1) property acquired before marriage or property acquired by bequest, devise or descent, or gift from a party other than the spouse;

(2) compensation for personal injuries;

(3) property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse;

(4) property described as separate property by written agreement of the parties pursuant to subdivision three of this part.

In considering the circumstances of the case and of the parties to equitably distribute marital property, the Court is required to consider the following enumerated factors set forth in DRL � 236(B)(5)(d)

(1) the income and property of each party at the time of marriage, and at the time of the commencement of the action;

(2) the duration of the marriage and the age and health of both parties;

(3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects;

(4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution;

(5) the loss of health insurance benefits upon dissolution of the marriage;

(6) any award of maintenance under subdivision six of this part;

(7) any equitable claim to, interest in, or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party;

(8) the liquid or non-liquid character of all marital property;

(9) the probable future financial circumstances of each property;

(10) the impossibility or difficulty of evaluating any component or asset or any interest in a business, corporation, or profession and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party;

(11) the tax consequences to each party;

(12) the wasteful dissipation of assets by either spouse;

(13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

(14) any other factor which the court shall expressly find to be just and proper.

There is no mathematical precision as the guidepost to determine the equitable distribution. See, Rodgers v Rodgers, 98 AD2d 386, 391 [2d Dept 1983]. In [*13]this case and based on all the circumstances of the illusion of information, the incredibility of testimony and lack of supporting proof, the Court makes an appropriate determination that is fair and just based on the joint economic partnership during the marriage.

Pennsylvania Properties

During the marriage, the parties purchased two residential investment properties, located on Meridian Street, Philadelphia, Pennsylvania (hereinafter referred to as "Meridian Street property") and on Tudor Street, Philadelphia, Pennsylvania (hereinafter referred to as "Tudor Street property"). The Meridian Street property, is solely titled in Plaintiff's name while the Tudor Street property is solely titled in Defendant's name. Each party collects rental income and pays the mortgage on the property titled in his/her name. These properties are not in default of mortgage payments. These properties were not appraised during this proceeding and neither party seeks equitable distribution of the properties. Thus, each party shall retain the property titled in his/her individual name.

Life Insurance Policies

According to the evidence, each party has a life insurance policy with benefits payable in the sum of approximately $250,000.00. While neither party presented evidence of the existence of the insurance policies, other than their testimony, neither party seeks equitable distribution of the life insurance policies. Thus, each party shall retain the insurance policy that is titled in their individual name.

Sky Cleaners

This business was during the marriage in 2007.The parties owned eighty-percent of this business with a third party. Although the actual purchase price of Sky Cleaners is unclear, the parties agree that they borrowed approximately $60,000.00 for the purchase using Montague Laundry as collateral. In 2008, the parties sold a portion of their interest. In 2009, they sold the remaining shares. The sums derived from both sales are unknown as the parties' testimony is inconsistent and neither party presented documentary evidence regarding the proceeds from the sales. Neither party seeks equitable distribution of this property nor its proceeds. There is no award of equitable distribution.

Red Apple

Plaintiff claims that, during the marriage, the parties purchased a laundromat, Red Apple, from Defendant's sister but title was never transferred to their names. This business was sold sometime in 2008 or 2009 and $220,000.00 was paid. There is no proof of date of sale and how the proceeds were distributed. However, neither party seeks equitable distribution of Red Apple. Therefore, there is no award of equitable distribution.

Montague Laundry and Montague Cleaners

As previously stated, the parties purchased Montague Laundry, located on Montague Street, Brooklyn, New York, in approximately 1998 or 1999. Neither party presented documentary evidence regarding the purchase of the business, the lease on the [*14]premises nor the income derived from the business. Each party claims that the other controlled the finances. Each party claims that the other party counted and hid the cash proceeds derived from the business. The evidence amply supported that Montague Laundry generated substantial income, as the parties were able to purchase residential properties, other businesses and open investment accounts from the income generated from Montague Laundry. The evidence also shows that Plaintiff was the primary person who controlled the financial aspect of this business due to her fluency in English. Defendant's English is limited. It is undisputed that prior to the purchase of Sky Cleaners in 2007, the parties' only sources of income were the profits received from Montague Laundry plus Defendant's minimum earnings of $1,000.00 per month from his employment at the jewelry factory.

At the time of Defendant's removal from the marital residence in January 2010, he was also barred from access to this business.Curiously, Montague Laundry was destroyed by fire in March 2010. In June 2010, Plaintiff received the insurance proceeds from Montague Laundry. Unbelievably, Plaintiff testified that from the insurance proceeds she paid the final expenses for Montague Laundry, including a loan used to purchase Sky Cleaners, real estate taxes, landlord, gas and water fees and used the remaining proceeds towards the purchase of Montague Cleaners. However, there is no documentary evidence produced by Plaintiff to show an accounting of the insurance proceeds, the outstanding and final billing records for Montague Laundry, the purchase documents for Montague Cleaners, the bank records or check receipts for the purchase transactions of Montague Cleaners. Notably, both the default Findings of Fact and Judgment of Divorce submitted by Plaintiff are silent regarding the issue of equitable distribution.

While the parties agree that the insurance proceeds from Montague Laundry are marital, they disagree regarding the classification of Montague Cleaners, the subsequent business. Plaintiff argues that Montague Cleaners is not marital property as Plaintiff purchased the business after the commencement of the divorce action.Plaintiff argues that Defendant is only entitled to one half of the insurance proceeds from Montague Laundry.Defendant argues that Montague Cleaners is marital property as Plaintiff utilized the insurance proceeds to purchase Montague Cleaners. Defendant seeks distribution of Montague Cleaners and requests that the business be sold and the proceeds evenly distributed. Alternatively, Defendant requests that Plaintiff buy out his interest in the business in the sum of $200,000.00.

DRL � 236 (B)(1)( c) provides that marital property is property acquired by either spouse between the date of marriage and the date of commencement of a divorce proceeding. In addition, the Court may consider assets acquired after commencement if there is proof that marital assets were used to acquire such assets acquired after commencement of a divorce proceeding. DRL � 236(B)(4)(b) authorizes the Court to select the date for the valuation of the parties' assets. In this case, the evidence clearly [*15]shows that Montague Cleaners was acquired using marital assets, that being, the insurance proceeds from Montague Laundry. From the facts and circumstances of Plaintiff's actions under the default judgment, there was a deliberate effort to conceal assets and the Judgment of Divorce in 2009. In accordance with the statute, valuation dates may be "anytime from the date of commencement of the action to the date of trial." It is settled law that a trial court possesses "discretion to select valuation dates for marital assets which are appropriate and fair under the circumstances, limited only by the requirement that the date set be sometime between the commencement of the action and the date of trial" (D'Angelo v D'Angelo, 14 AD3d 476, 476 [2d Dept 2005]). There is "no restriction upon the discretion of the court in choosing any appropriate valuation date or dates" (Wegman v Wegman, 123 AD2d 220, 237 [2d Dept 1986]). However, in determining valuation dates courts have considered the nature of the asset to be valued, and whether the increase or decrease in value of the property or asset is due to market forces, inflation, efforts of one spouse, or wasteful dissipation or fault of one spouse (see, Wegman).

It is undisputed that the insurance proceeds from Montague Laundry are marital property. The core issue is whether marital funds were used to acquire Montague Cleaners. The Summons with Notice, Verified Complaint and Plaintiff's Affidavit indicates that Plaintiff did not seek equitable distribution of marital property. In addition, the Findings of Fact and Judgment of Divorce did not include the ancillary relief of equitable distribution. Plaintiff did not inform the Court of the assets in the marriage and continued to operate the business and live with Defendant as usual.Shortly after Defendant filed an Order to Show Cause seeking to vacate the default Judgment of Divorce, the parties' business, Montague Laundry which was operated by Plaintiff, was destroyed by fire in March 2010. Neither party sought an appraisal of the business prior to March 2010 and neither party presented any documentary evidence regarding the income and expenses generated by Montague Laundry. The Court is unable to determine the value of Montague Laundry, at any time during the proceedings, from its commencement to date of trial.

The evidence shows that Plaintiff received insurance proceeds for Montague Laundry in the sum of $89,712.00, of which $15,450.00 is attributable to content damage and $74,262.00 is attributable to building damage. While Plaintiff claims that she used the insurance proceeds to pay expenses, Plaintiff failed to submit any credible evidence to substantiate her claim. The only available moneys to Plaintiff were all marital funds from either the insurance proceeds, the investments accounts, the monies hidden from IRS and the rental income.In addition, Montague Cleaners was purchased in June 2010 in close proximity to the payment of the insurance proceeds in March 2010. The only fair and reasonable conclusion from the evidence of the source of funds utilized to purchase Montague Cleaners are traceable to marital property. (See, Marcus v Marcus, 135 AD2d 216 [2d Dept 1988] Siegel v Siegel, 132 AD3d 247 [2d Dept 1987].) [*16]Montague Cleaners is deemed marital property acquired after the commencement of the action through the exchange of marital funds, namely, the insurance proceeds (Vora, supra).

To determine Defendant's equitable share of Montague Cleaners, the Court must determine what percentage of the marital funds was used to purchase Montague Cleaners (Siegel at 255). Plaintiff's testimony was inconsistent. Plaintiff testified that the purchase price of Montague Cleaners was approximately $150,000.00, including the rent and purchase of machinery. Plaintiff later testified that the purchase price of Montague Cleaners was approximately $200,000.00, including approximately $90,000.00 for renovations, $90,000.00 for the purchase of machinery and $16,000.00 as a rent deposit. Although Plaintiff maintained that she and her current husband borrowed sums of approximately $130,000.00 for the purchase of Montague Cleaners, Plaintiff failed to present any documentary evidence to substantiate her claim. Plaintiff further testified that she utilized funds from the sale of Sky Cleaners in the sum of $40,000.00, towards the purchase of Montague Cleaners, but failed to provide any evidence, other than her testimony, to substantiate her claim. Interestingly, Plaintiff testified that between March 2010, when Montague Laundry was destroyed by fire, and September 2010, she had no income or savings. Upon Plaintiff's failure to provide sufficient and credible proof that she utilized non-marital funds to purchase Montague Cleaners, the Court deems one-hundred percent of Montague Cleaners to be marital property, subject to equitable distribution.

To determine what is an equitable distribution of Montague Cleaners, the Court turns to the factors set forth in DRL � 236 (B)(5)(d). The income of the parties at the time of the marriage and at commencement of the action is unknown. The parties' income as reported on their joint tax returns is inconsistent with their testimony and lifestyle. The parties were married for approximately thirteen years. Neither party seeks maintenance. The marital residence is a rental apartment, where Plaintiff currently resides with her new husband. Both parties were employed during the marriage. Although each party denies having full financial control over the marital businesses, it is clear that the marital businesses were joint enterprises. The evidence presented, albeit minimal, established that Montague Laundry was a cash business and the parties failed to report all income to IRS. As Montague Laundry was a joint enterprise of the parties, and the resulting proceeds are marital funds, this Court determines that Montague Cleaners shall be equally divided based upon its fair market value as of the date of trial of July 2013.

The parties are directed to consult and select a neutral appraiser to determine the value of Montague Cleaners as of July 2013. The parties are to notify the Court of the selected neutral expert in a written stipulation within thirty days of the date of entry of this Order. Upon the parties' failure to submit a written stipulation timely, the Court shall appoint a neutral appraiser. The Plaintiff, nor anyone acting on behalf of Plaintiff shall [*17]not encumber, transfer, damage or destroy Montague Cleaners, its assets or its contents.

New Spring Cleaners Inc. and Manhattan Cleaners and Tailors Inc.

It is undisputed that Plaintiff purchased New Spring Cleaners in January 2012 for the sum of $15,000.00.It is further undisputed that some, if not all, of the funds used to purchase New Spring were incomes derived from Montague Cleaners. Although this Court has determined that Montague Cleaners is a marital asset, neither party seeks equitable distribution of New Spring. Thus, there is no award of equitable distribution of New Spring.

In addition to New Spring Cleaners, Plaintiff currently owns and operates Manhattan Cleaners and Tailors, which she purchased in August 2012. According to her testimony, Plaintiff purchased this business, in part, using profits derived from Montague Cleaners and New Spring Cleaners. Like New Spring Cleaners, neither party seeks equitable distribution of Manhattan Cleaners and Tailor. Thus, there is no award of equitable distribution of Manhattan Cleaners and Tailor.

Mars Laundry

Defendant currently owns twenty percent of Mars Laundry, which he acquired in August 2010. Defendant claims that the purchase of his interest in Mars cost $26,000.00, for which he must repay his sister. Defendant failed to present evidence to substantiate his claim, including a promissory note. While Defendant failed to present any documentary evidence regarding the current value of Mars, he estimated its current value as approximately $130,000.00. Neither party seeks equitable distribution of Defendant's interest in Mars Laundry. Thus, there is no award of equitable distribution of Mars Laundry.

HSBC Account

Defendant seeks distribution of the HSBC Account titled in the name of Plaintiff and her brother. Plaintiff holds a checking and money market account with HSBC and opposes the distribution.

It is undisputed that Plaintiff opened accounts with HSBC with her brother some time in 2005 or 2006. Plaintiff claims that Defendant was aware of the existence of the account. In November 2008, the combined account balance was $90,259.40. Plaintiff testified that $10,000.00 of the $90,259.40 was contributed by her brother. Plaintiff testified that of the remaining balance, approximately $40,000.00 is attributable to proceeds from the first sale of Sky Cleaners and the remainder of the funds were earmarked for the purchase of Red Apple Cleaners. Plaintiff testified that she returned the $10,000.00 to her brother, transferred $40,000.00 to her TD Ameritrade account for the later purchase of Montague Cleaners and gave $50,000.00 to Defendant's sister for the purchase of Red Apple. At the time of trial, Plaintiff testified that approximately $500.00 remained in the account. Defendant testified that Plaintiff controlled and maintained the parties' finances and denied knowledge regarding deposits and withdrawals. [*18]

A review of the documentary evidence reflects transfers from the HSBC account in the sum of $35,000.00, between July 2009 and May 2010. Although the bank statements were entered into evidence by Defendant, only five documents were presented, reflecting transactions in July 2009, September 2009, January 2010 and May 2010. Of the $35,000.00, the sum of $27,000.00 was transferred to Plaintiff's TD Ameritrade account and the sum of $3,000.00 was transferred from the money market to the checking account. Plaintiff further testified that she returned $5,000.00 of her brother's $10,000.00 deposit to him in September 2009. While Plaintiff acknowledged that approximately $500.00 remained in the account at the time of trial, neither party presented documentary evidence regarding the account balance at commencement nor as of the date of trial.

"A spouse who alleges that the other spouse engaged in waste and dissipation of marital assets bears the burden of establishing such conduct by a preponderance of the evidence" (Raynor v Raynor, 68 AD3d 835, 838 [2d Dept 2009]). It is undisputed that the HSBC accounts once held a maximum balance of approximately $90,000.00 and currently holds approximately $500.00 prior to commencement.Although Defendant claims that Plaintiff dissipated the accounts, he failed to refute Plaintiff's testimony that the funds were ultimately used towards the purchase of other businesses, namely Red Apple and MontagueCleaners. During their marriage, the parties used funds from their business to purchase investment properties in Pennsylvania and a new business, namely, Sky Cleaners. Curiously, Defendant subpoenaed the relevant bank records but failed to present all the records into evidence. Thus, upon Defendant's failure to present evidence sufficient to establish a claim of wasteful dissipation, Defendant's claim for equitable distribution in the sum of $45,129.70, representing fifty percent of the account balance as of November 2008, is denied. However, each party is entitled to one-half of the total sum as of the date of trial, July 2013. Thus, each party shall receive the sum of $250.00 from the HSBC account as their equitable distribution award.

TD Ameritrade Account

Defendant seeks distribution of the TD Ameritrade account in the sum of $28,000.00. Defendant argues that Plaintiff transferred marital funds from the HSBC account to the TD Ameritrade account in the sum of $28,000.00, and seeks one-half of this account. Plaintiff opposes the distribution.

It is worthy of note that, Plaintiff admits that she transferred $40,000.00 from the HSBC accounts to the TD Ameritrade account. Plaintiff used the $40,000.00 towards the purchase of Montague Cleaners in 2010. This Court has determined that Montague Cleaners is a marital asset, as it was purchased with marital funds. Furthermore, Defendant failed to produce documentary evidence regarding the existence of the TD Ameritrade account and the balance of funds therein, if any. Thus, Defendant's claim for equitable distribution of this account is denied.

Max International Account

Defendant seeks distribution of the funds in the parties' Max International account. [*19]Plaintiff agrees that each party is entitled to one half of the balance of the Max International account. As of December 31, 2009, the sum of $11,842.88 remained in the account. Neither party has presented evidence to establish any increases nor decreases in the account due to market fluctuations; nor has Defendant established wasteful dissipation of the account by Plaintiff. Thus, each party is entitled to one-half of the total sum or $5,921.44, each. Thus, each party shall receive the sum of $5,921.44 from the Max International Account as their equitable distribution award.

China Trust Account

According to Plaintiff, during the marriage the parties jointly held an account at China Trust, which Defendant used to pay the mortgage on the Pennsylvania property. Defendant denied knowledge regarding the existence of the account prior to leaving the marital residence. However, Plaintiff testified that in April 2009 the account held approximately $2,000.00. While Defendant testified that the account presently exists, neither party submitted documentary evidence to establish the existence of the account nor its current value. Notably, neither party seeks equitable distribution of the account. Thus, there is no equitable distribution award of this account.

Citibank Account

Plaintiff testified that the parties jointly held an account at Citibank which was used to marital expenses and bills. Plaintiff testified that at commencement, approximately $2,000.00 remained in the account, but she closed the account after all the marital expenses were paid. Neither party presented documentary evidence regarding the existence of the account nor its current value and do not seek equitable distribution of this account. Thus, there is no equitable distribution award of this account.

Great Eastern Bank Account

Plaintiff testified that at the time of filing, this account held approximately $3,000.00 or $4,000.00. Plaintiff further testified that Defendant withdrew all the funds from the account in April or May of 2005. Defendant failed to present evidence, either documentary or testimonial, disputing Plaintiff's testimony. Neither party seeks equitable distribution of this account. Thus, there is no equitable distribution award of this account.

Defendant's 401(k)

Plaintiff seeks distribution of the marital portion of Defendant's 401(k), currently titled in Defendant's name held at Chase Bank. Defendant's Statement of Net Worth indicates that Defendant acquired the 401(k) in 2002 with an initial investment of $1,000.00. Although Defendant testified that the current balance of the account is approximately $40,000.00, neither party presented documentary evidence regarding the account balance at the date of commencement. In accordance with DRL � 236, Plaintiff is awarded fifty percent (50%) of the marital portion of Defendant's 401(k) held at Chase Bank, as of the date of commencement, April 29, 2009, including any interest, gains and/or losses. To effectuate the distribution of the 401(k), either party may submit a Qualified Domestic Relations Order to the Court. Defendant is directed to cooperate with [*20]requests for information or documents from Plaintiff or her attorney regarding the distribution of this asset, in preparation of the Qualified Domestic Relations Order. Plaintiff is awarded equitable distribution from this account pursuant to Majauskas formula and consistent with this finding. (See, Majauskas v Majauskas, 61 NY2d 481.)

2001 Nissan Pathfinder

During the marriage, the parties purchased an automobile. Although neither party offered testimony nor documentary evidence regarding this asset, Defendant's Updated Statement of Net Worth indicates that the parties purchased a 2001 Nissan Pathfinder in 2007 for approximately $5,500.00. The vehicle has an approximate fair market value of $2,600.00, as stated in Defendant's Statement of Net Worth. Defendant acknowledged that Plaintiff is entitled to one-half of the value of the vehicle. Accordingly, Plaintiff is awarded an equitable distributive share of one half of the fair market value of this asset or $1,300.00.

The web is unwoven and the deception is uncovered. "He that climbs the tall tree has won right to the fruit." by Sir Walter Scott, Marmion, Canto vi. Stanza 17. Scottish Author & Novelist (1771 - 1832).

The above constitutes the Decision and Order of the Court after trial.

Submit final papers on notice for judgment.

So Ordered,

Dated: March 19, 2014_____________________________

Queens, New YorkHon. Pam Jackman Brown, JSC

Courtesy copy to:

Attorney for Plaintiff

Anthony M. Bramante, Esq.

32 Court Street, Suite 902

Brooklyn, NY 11201Attorney for the Children

P: (718) 625-5525Law Office of Janet Brown

BY: Janet Brown, Esq.

Attorney for Defendant