In this matter, a trial was held on issues relating to child support and equitable distribution. The husband and wife both testified and were cross-examined by opposing counsel, and the attorney for the children. The wife, as plaintiff, reaffirmed her complaint that the marriage had been irretrievably broken down for a period in excess of six months under Domestic Relations Law § 170 (7). Palermo v. Palermo, 100 AD3d 1453 (4th Dept. 2012)

The couple were married in 2004, while the wife was a medical resident at the University of Rochester. The husband, at the time of the marriage, was employed as a finance representative for a local money managing business. Soon after the wedding, while the wife was working and completing her medical training, the husband left his job, remained at home, caring for the first child (now five years old) and eventually the second child (now two years old). The wife described this arrangement as an "agreement." She would work and the husband would care for the children. The wife also testified that the husband, with his musical background, worked part-time as a musician, accompanying [*2]various shows at local playhouses, and serving as a choir director at a local church.

Both parents have advanced degrees. The wife holds a medical degree, earned prior to the marriage. The husband holds a master's degree in music education, obtained during the marriage. The couple have a wide disparity in their incomes: the wife's, at the time of the commencement, exceeded $160,000 and the husband, admittedly working only part-time, earned less than $8,000. After conferences, and motion practice, the couple were unable to resolve their differences and a trial ensued.

It is undisputed that the children are in good health and have no exceptional needs. There is no evidence suggesting that either parent has any parenting flaws or behaviors that would adversely impact their children, or that either parent cannot promote the best interests of the children. The testimony is undisputed that both parents love their children, and the children, to the best extent that both parents can evaluate them, love their parents. The wife testified that from time to time before the break-down of the marriage, the husband would often ignore the children. However, there is no evidence that either child encountered any difficulties during the time that he cared for them in the marital residence prior to the break-down of the marriage. After the husband left the marital residence, the wife's parents moved into the marital residence and they have provided on-going childcare for the couple. The wife's parents perform those tasks while the wife works and, on occasion, when the husband, as a result of his somewhat difficult-to-anticipate schedule, drops the children off at the former marital residence. There was no evidence that the children have encountered any difficulties as a result of the use of the grandparents as daycare providers, and neither party objected to this arrangement.

The husband testified that his parents also play a role in the children's lives. The husband, after leaving the marital residence, purchased a home nearby the marital residence. In purchasing the home, the husband, with the approval of the court, removed $10,000 from the family's bank accounts to finance the purchase (this extinguished his interest in the marital home). The husband's parents also assisted in the purchase of the house ^[FN1] and, according to the husband they pay the monthly mortgage cost while he pays the property taxes and other costs.

After the trial, neither party disputed that joint custody was appropriate in this case. The evidence establishes that they have worked together on educational and extracurricular issues. Joint decision-making should continue except as otherwise provided in this decision. The evidence establishes that both parents bring skills and attributes to their parenting and that neither parent critiques the other's parenting skills. The children love both parents and want to spend time with both of them. While there is some friction between the couple at this stage, there is also evidence that they can jointly make decisions regarding the children's education and activities. Both parties have used family resources to minimize the use of daycare, and cooperated when one or the other had time commitments that required changes in the parenting schedule. This court concludes that there should be joint custody and joint decision-making between these parents. Each parent shall cooperate on all matters having a significant impact on the children's lives, [*3]including, but not limited to: education, psychological well-being, medical care, religious upbringing, school vacations, trips, summer camp, and extra-curricular activities, unless otherwise stated in this decision. The parents will advise each other of all the above listed matters as they pertain to their children.

The court makes only two exceptions. First, because the wife is a physician, she is vested with sole decision-making on all medical matters involving the children. She must confer with the husband prior to implementing any medical decisions, but after such consultation, she will make the final decision. Second, the wife shall have the final decision on whether the children attend private schools, provided she pays the entire tuition cost. She must confer with the husband regarding the school, but after such consultation, she makes the final choice, provided she alone pays the tuition. If the wife elects not to pay private school tuition, the parties shall jointly decide on schooling. This court takes judicial notice that the parties live in the same school district, and it provides high quality education for students. Thus, if the children attend the public schools in their home district, a high quality education can be easily attained.

The parents shall cooperate to provide their children a sense of security and affection, and to maintain and improve the emotional health and well-being of the children. Neither party shall do anything which may estrange the other parent from the children or injure the opinion of the children as to the other party, or hamper the free and natural development of the love of the child for the other party.

During the pendency of this action, the parents have created a parenting schedule that both parents acknowledge has "worked." A previous court order, issued in November 2012, provided the following:

In her post-trial memorandum, the wife suggests the following parenting schedule:

In the husband's post-trial memorandum, he simply requests that this court implement a "shared residential schedule for both children as there is no proof at trial which would show the same is not appropriate given the parties circumstances." The husband's counsel makes no suggestion on how to allocate the time equally and never argues that the current arrangement — in which the wife has the children in residence more [*4]than half the time — is inappropriate.

The trial proof leads to other conclusions. The husband testified:

At another point, the husband testified:

The wife testified, regarding the schedule:

Importantly, under the current arrangement, the wife is the primary residential parent. The children spend at least four nights a week with their mother, and on alternate weekends, they spend six nights a week with her. In a two-week period, the wife has the children 11 nights, and the husband only three. However, because both parties acknowledge that a split residence plan would best accommodate the relationship between the parents and their children, the court decides the following parenting time schedule:

The parenting time for these parents should be shared as equally as possible during holidays, special days, and vacations. The court, after reviewing the proposals for each parent, decides as follows:

In even numbered years

In odd numbered years 1-6 will reverse.

This schedule can be modified by the parents as needed to accommodate special occasions, so long as the modifications remain in the children's best interests.

In prior proceedings, this court ordered maintenance to be paid by the wife to the husband in the amount of $1,750 each month. The payments commenced in December 2012 and have continued to the date of the trial. The wife's counsel, without contradiction, computed this amount as $28,000 in temporary maintenance paid from the wife to the husband during the pendency of this action.

At trial, there was little evidence of the husband's financial needs. He never suggested that he was failing to pay his bills. While there was some evidence that he required financial support from his parents, there was no suggestion that his expenses substantially exceeded his income. In his statement of net worth, he listed his monthly expenses as stemming from his living together with his wife in the marital residence, which leaves sparse information on the expenses in his new residence. Maintenance requires some justification based on current or anticipated needs of the recipient and, the husband's proof on the issue is minimal, at best.

This court also finds that the husband has the capability to earn significantly more income as a teacher. There is no evidence that his return to a job in the financial sector would be profitable. He currently works only part-time, but there is no evidence that he could easily obtain a full-time job as a music teacher. During cross-examination, wife's counsel probed whether the husband was diligently seeking employment. He testified that he had three interviews with school districts this year trying to obtain a full-time job, but as of the date of trial had not obtained one.^[FN3] The husband currently earns $17,000 annually as a part-time music teacher. He is paid some additional stipends for work as an accompanist, the director of musical productions, and the director of a vocal group. In this court's view, he could be employed during those times, earning additional income which would add to his own financial stability. If he even worked 15 hours a week on weekday [*8]evenings and alternate weekends (when he does not have the children), he would generate, at minimum wage, approximately $120 per week or nearly $6,000 in additional annual income. As a result, imputing income in the amount of $30,000 annually to the husband is reasonable and fair.

The wife has been paying maintenance since December 2012, at the rate of $1,750 per month. In considering the maintenance factors set forth in the Domestic Relations Law, the Court concludes as follows:

The court notes that the husband, in arguing for continued maintenance, cites the temporary guidelines for maintenance enshrined in DRL § 236 (B) (5-a). Under these guidelines, the maintenance would total $3,801 per month, for a total of more than $47,000 annually. This court has, in other contexts, declined to apply the temporary guidelines. E.J.L. v K.L.L., 38 Misc 3d 389 (Sup. Ct. Monroe Cty. 2012); see also Liebman v Liebman, 37 Misc 3d 1224 (A) at 9 (Sup. Ct. Queens Cty. 2012) (the presumptive award is unjust or inappropriate). In addition, the temporary guidelines are inapplicable to a permanent award. V.M. v N.M., 43 Misc 3d 1204 (A) at 13 (Sup. Ct. Albany Cty. 2014). The court sees little value in the guidelines approach in this case, in which the recipient spouse already has an advanced degree and needs little "workforce retraining" in order to maximize his economic potential. The husband, in this case, just needs a full-time job, not job retraining.There are no other factors justifying extended maintenance in this case. In this court's view, the husband should be paid maintenance by the wife for a period of 40 months at the rate of $1,500 per month or $60,000. The wife gets credit for the payments already made. She has paid $1,750 for 22 months (from December 1, 2012 through August 1, 2014) for a total of $38,500. When this amount is subtracted from the original amount, $21,500 remains to be paid. The wife should pay $1,500 per month for the next 14 months and then $500 for the last month, and the maintenance obligation will be completed. The husband's total income, based on his current employment and the maintenance, will be approximately $25,000 - $35,000 during this period. The husband, given his education, including an advanced degree, should be able to find a suitable job with income equivalent to the maintenance within the next 15 months. Maintenance will give the husband time to complete his "reinvention" as a music teacher and secure full-time employment.^[FN4] The amount and duration of maintenance paid by the wife to the husband in this case is not unconscionable, based on the needs of the husband and the ability to pay by the wife, and there is no danger that the husband will become a public charge.

The parenting time schedule, as advanced by the court, creates an almost equal split of the time between the parents. As a result, identifying the non-custodial parent based on relative incomes is consistent with the intent of the Child Support Standards Act [*10]to make sure that the children enjoy a particular standard of living, wherever they happen to be residing at a particular time. Martin v Buckley, 33 Misc 3d 1234 (A) (Sup. Ct. Monroe County 2011) . Accordingly, the wife is determined to have the greater pro rata share of the child support obligation and is identified as the non-custodial parent for child support purposes. See also Leonard v. Leonard, 109 AD3d 126, 129 (4th Dept. 2013) (parent's child-related costs are dictated by the amount of time he or she spends with the children and the children's standard of living should not vary so drastically from one parent's house to the other).

The wife is, by far, the higher income spouse. As a matter of law, she carries the child support obligation. Bast v. Rossoff, 91 NY2d 723 (1998); Rubin v. Della Salla, 107 AD3d 60 (1st Dept. 2013) (where the parents' custodial time is truly equal, such that neither parent has physical custody of the child a majority of time, courts have deemed the parent with the higher income to be the non-custodial parent for child support purposes). At the outset of this analysis, the following factors influence the Court:

In her post-trial submission, the wife argues that the child support should not commence until the maintenance payments cease. This suggestion fails to take into account the separate functions of these two statutorily mandated forms of transfer payments. The maintenance is designed, in significant measure, to support the spouse and permit the spouse to engage in necessary steps to re-enter the work force, and seek sustainable employment. Child support, paid to a parent who shares parenting time, is required to support the children. Because the two are separate support functions, sanctioned by statute, the court declines to merge them together. The child support should be paid commencing the first day of the first month after the issuance of this opinion.

The couple shall each contribute $500 per year for each child's extracurricular activities and summer camps, but otherwise, the wife shall pay for all other costs and expenses incurred by the children relating to school activities, or other outside activities. Any unreimbursed medical or dental expenses shall be shared 80 percent to the wife and 20 percent to the husband and any bills or receipts for such services shall be delivered to the other parent no later than 10 days after the end of the month in which the bill or receipt is delivered. Any amounts due shall be paid within 20 days thereafter.The wife will provide health insurance for the children at no cost to the husband. Upon the filing of the divorce, the husband shall cease to participate in any health insurance plan made available to him through the wife or her employer. The husband may engage coverage through the COBRA option from the wife's employer or obtain insurance through other sources.

There is no evidence in this case that the husband, based on the child-support he will be provided, cannot provide for the children. There is no evidence that they have substantial expenses or unusual needs. He has additional family resources to draw on if he needs them, and he has family support in caring for the children. There is no evidence that the husband, who lives a short distance away from the wife's residence, in the same town, will not be able to provide a comparable standard of living for the children. The expenses of visitation are minuscule: the distance separating the two residences is less than two miles.

There are no remaining issues related to real property. The wife is the sole owner of property at 209 Hollywood Avenue, Rochester, New York. She paid the husband $10,000 for his marital interest in the property which was advanced to him pursuant to a temporary order issued by this court. The husband's name was removed from any mortgage obligation. He has no further marital claim in this real property and any of its contents. The wife keeps what remains in the home. The husband's current home, purchased after the date of commencement, is his separate property and not under the jurisdiction of this court. The wife seeks reimbursement for the cost of refinancing the house. The wife testified that the refinancing cost $8,180. There is no evidence whether the refinancing reduced or increased the mortgage rate on the house, whether there were tax advantages for the refinancing or documentary proof regarding the payment of these sums. The court declines to grant any credit to the wife for this sum.

With respect to retirement accounts, the husband had a Roth IRA and a 401K investment account on the date of commencement. The wife had a TIAA/CREF account and a 403-b account. These accounts shall be divided by calculating the marital funds in [*11]the accounts on the date of commencement, adding any gains and losses since the date of commencement and then netted and any excess owed to either party shall be transferred by appropriate order. Neither party owned any stocks or mutual funds.

The automobiles shall be divided and each party shall have full title to the vehicles which they currently use. The Prius, operated by the husband, had $16,500 in equity at the time of the commencement of the action (the wife and the husband's statements of net worth attest to the equity in the Prius at the time of commencement). Based on the wife's testimony and the statement of net worth, the wife is awarded $8,250 as her marital share of the equity in the Prius. The wife's car on the date of commencement was subject to a lease and had no equity. The parties will take whatever steps are necessary to transfer titles consistent with this decision. Each party remains liable for the cost of those vehicles since the date of commencement, and shall provide their own insurance from the date of commencement.

In her claims for personal property, the wife also alleges that the husband acquired toy trains during the marriage and removed them when he moved out. The wife testified the trains acquired during the course of the marriage were worth $8,000. The wife presented a list of the trains, with dates of purchase and values. The wife's attorney read deposition testimony in which the husband agreed to the wife's estimated value of $8,000. The Court credits the wife's testimony on the value of these items and awards her $4,000 as a credit against the marital share of the trains. The wife retains all her rings and jewelry, as there were no values for these items during the trial and no claim against them by the husband.

The wife testified that the husband charged $2612.50 to his own credit card after the date of commencement, and that amount was paid off from a joint checking account after the date of commencement. The wife is entitled to one-half of these funds or $1,306.25. She also claims that the husband removed other amounts from various accounts and she claims a marital interest in those accounts. Based on this Court's review of the various accounts and the husband's removals, the husband took $4650 from one account, $2,000 from another and $3,580 from a third. These sums total $10,150, which is slightly more than the $10,000 that the court had ordered to be paid to the husband to extinguish his marital interest in the marital residence. The court considers these sums a wash and allocates no further amount to the wife for these transactions. The wife does make a valid claim that the husband withdrew $3,300 from a marital account, after the date of commencement, and transferred those funds to his own account. The husband owes the wife $1,650 as her share of those post-commencement transfers.

The wife has substantial student loans, totaling $145,000. There is no evidence to justify any enhanced earnings for the husband's claim to the wife's degree and no evidence that these debts should be equitably distributed. The students debts in the wife's name remain in her name. The husband also has student debts and those debts remain his sole responsibility.

The husband is the less monied spouse and under DRL § 237 (a) is presumed to [*12]be a beneficiary of attorney fees. Considering the scope of the equitable distribution in this case, the incomes of the parties, and all other factors, the husband is awarded $5,000 in attorney fees to be paid within 30 days of the entry of the final judgment in this matter. The parties shall also jointly pay the cost of the services of the attorney for the children. These costs, based on the total sums paid, shall be divided evenly. While this formula is slightly weighted more to the husband, the court considers this allocation, for the services of the children's appointed attorney to be reasonable and fair under all the circumstances. The proof before the court establishes that the wife advanced $1,264 for the AFC fees and there is no evidence that the husband paid any portion of these fees. The husband shall reimburse the wife $632 for these expenses.

The court makes no provision for any college costs incurred by the children. Either parent may apply for apportionment of college costs at a later time.

The husband shall have the older daughter as a tax exemption and the wife shall have the younger daughter. When only one exemption is available, the couple shall rotate the exemption with the higher income spouse having the first year of the single exemption.

The husband makes a claim for distribution of the couple's 2012 income tax return. While this asset accrued during the course of the marriage and is marital property, this court declines to require the wife to distribute any portion of the return. The payment of maintenance and other factors makes it inequitable to do so and furthermore, almost the entire refund stems from the wife's substantial income. Likewise, the court also declines to award the wife any sums for her payment of taxes that accrued on the husband's income in 2012. In her claims to this court, the wife argues that the husband listed three exemptions on his wage reporting statements with the consequence that he had no withholding taken during that year. She argues that he would have paid $3,199 in taxes on his income and that she, in essence, paid it. This court rejects this novel theory of equitable distribution, and denies the wife's claim to these funds.

Both parties will obtain term life insurance on their lives in an amount no less than $100,000, and they shall make the other spouse the beneficiary of such insurance. The court intends that this insurance provide for the children and it shall continue in full force and effect until the emancipation of the older child. Upon that event, the insurance shall be dropped to $50,000 and shall remain in full force and effect until the second child is emancipated.

To the extent that this decision awards sums to either parent, the parents should net out the sums so awarded, and the net amount should be paid by the obligated spouse within 30 days of this decision. This decision resolves all disputes regarding the support of the children and the family and the equitable distribution of all marital assets in accordance with Section 170 (7) of the Domestic Relations Law.

SUBMIT JUDGMENT ACCORDINGLY