The court held a 21-day trial of the financial aspects of this divorce case. Each party testified. In addition, plaintiff R.S. (Husband) presented the testimony of vocational expert Lee Miller, and Christopher Carey, the General Manager of the H Club. Defendant B.L. (Wife) presented the testimony of her sister, B.D.; Anne Marie Broughton, who categorized the Wife's expenses; Richard Adelman, a labor arbitrator; Kevin Starke, the Wife's friend and real estate broker; and her psychiatrist, Dr. Cerri Hadda.

The essential questions in this case are: 1) Is the Wife able to work, or is she precluded from doing so by her alleged mental health issues? 2) How should the parties' assets be divided? 3) How much maintenance should be ordered and for how long?

Credibility

The Wife was not credible. She was repeatedly evasive and refused to answer simple, clear questions. Throughout the trial, her behavior was inappropriate, aggressive, rude and confrontational. In addition, her testimony was repeatedly inherently incredible, internally inconsistent, or just plain false; examples of this include, but are not limited to the following:

Lee Miller was qualified as an expert, and his testimony was credible. Mr. Adelman, who was apparently called to rebut Mr. Miller's testimony, was reasonably credible, but his testimony did not at all diminish the credibility of Mr. Miller's testimony or the usefulness of his expert opinions, since Mr. Adelman was testifying only as a fact witness.

Ms. Broughton was credible, but her testimony was entirely unnecessary since, as she testified, the arithmetic tasks for which she was paid $42,397 was something "any high school kid could have done." Moreover, her analysis that less than 10% of the parties' living expenses should be attributed to the Husband render her entire analysis useless.

Dr. Hadda was not credible. Her testimony was clearly biased and often internally inconsistent. Although a fact witness, she was paid $7,400 for her testimony. Her testimony about the Wife's hospitalization in December 2012 contradicted the medical records that she signed during the same period. She testified that, on the evening of December 10, 2012, she told Dr. Kuittinen, who had just admitted the Wife involuntarily, that she did not believe that the Wife met the criteria for an involuntary admission. Nevertheless, at or about 2:00 p.m., on December 11, 2010, she went to Lenox Hill Hospital, and she swore to a certification that she had examined the Wife prior to admission and confirmed that she needed involuntary care and treatment.^[FN1] She later testified, as to her certification that:

The Wife's sister, B.D., was not credible. She claimed that she had a vivid memory of the events of the week in July 2009 when her sister was hospitalized, but her "vivid" memory was patently untrue in many respects. In particular, although she testified that she was with her sister from Monday to Friday that week, she was actually only with her from Tuesday to Thursday; although she testified that she picked up her sister in Times Square, she actually first saw her sister in Atlantic Beach after the Husband had driven her there; and although she testified that the Husband was too busy to attend to his Wife, he actually spent much of that week with her.

The testimony of Mr. Carey was of little moment, since he only testified to establish an evidentiary foundation for the Wife's application to the H Club.^[FN2]

Mr. Starke was not credible, nor was his testimony probative. While he first claimed to have remembered incidents specifically, he became vague on cross examination, rendering his earlier certainty questionable.

Jurisdictional Facts

The parties were both over 18 years of age when this action commenced. The parties reside in New York State, and the Husband resided in New York State for a period in excess of two years before commencement. The parties were married in a religious ceremony on June 21, 1987. No decree, judgment or order of divorce, annulment or dissolution of marriage has been granted to either party against the other in any Court of competent jurisdiction of this state or any other state, territory or country, and there is no other action pending for divorce by either party against the other in any Court. There are two children of the marriage, born in February 1994, and September 1996. The marriage between the parties had broken down irretrievably at least six months prior to the commencement of the divorce action.

On March 29, 2013, the Wife moved by order to show cause to vacate the March 15, 2013 order of preclusion (on Motion Sequence 3) and to permit her to present the testimony of Dr. Kaminski, a psychiatrist, and an unnamed certified public accountant. In her papers, she stated that Dr. Kaminski would testify that she is "seriously traumatized, very fragile" and "100% disabled." By order dated April 16, 2013, the court held that the Wife had waived her right to submit expert testimony. I also noted that she was judicially estopped from introducing Dr. Kaminski's testimony which was diametrically opposed to the position she had taken earlier in the case, when she was seeking sole custody, that she is a "strong person" who "has never evidenced any symptoms of mental illness."

On April 10 and 11, 2013, the Wife served subpoenas on the Husband and on the Husband's law firm seeking 129 categories of documents. After argument on April 15 on the motions to quash made by the Husband and his firm, the court granted the motions in their entirety, and reserved for trial the Husband's applications for sanctions.

On April 19, 2013, in a conference call with the court, the Wife's counsel again requested an adjournment of the trial, then scheduled to continue on April 22, claiming that the Wife had various medical conditions which required her to have two weeks of rest, and that continuation of the trial could cause her to have a heart attack and stroke. Counsel did not inform the court that the Wife was intending to attend a Knicks game the next day, and to drive to Philadelphia the following weekend. Accordingly, the court cancelled trial on April 22, and stated that trial would continue on April 23 at 2:15 p.m. On April 24, her counsel again requested an adjournment because the Wife was not well enough to come to court. I noted that, on the previous day, the Wife had looked well, had moved around the courtroom, did not show any signs of discomfort, and had seemed alert and attentive throughout the afternoon. I denied the application for an adjournment. The Wife appeared, as scheduled, without incident. On April 26, 2013, the Wife proffered a new witness list, including seven entirely new names.

In its decision dated June 25, 2013, the court found that the Wife repeatedly violated the access order for the summer of 2012, resulting in numerous telephone and in-person conferences [*3]with the court. She repeatedly violated every aspect of the parties' Parenting Agreement.

On April 30, 2013, the court admitted into evidence at the Wife's request records of five hospitalizations designated Exhibits PP to UU, relying on the representation of the Wife's counsel that he had subpoenaed certified copies of the hospital records; that Exhibits PP to UU were complete and accurate copies of the hospital records that he had subpoenaed; that the electronic copies of Exhibits PP to UU previously given to counsel (the Electronic Copies) were complete and accurate copies of the hospital records; and that, when the certified copies of the hospital records were received pursuant to subpoena, they would be substituted for Exhibits PP to UU. On or about May 27, 2013, the Husband's counsel advised the court that the Electronic Copies differed in many respects from the paper copies of the Certified Records she had been given on or about May 9, 2013. On May 28, 2018, the Court excluded these records from evidence, "[b]ased on the representations made by the Husband's counsel as to the discrepancies between the Electronic Copies and the Certified Records, and the inability of the Wife's counsel to state with certainty that the Electronic Copies were identical to the Certified Records. In Motion Sequence 6, the Wife moved to reargue the May 28 decision. On July 15, 2013, the court granted the motion, but reserved the Husband's right to make an application for attorneys' fees for the time spent as a result of the inaccurate representation made by the Wife's counsel, and further stated that the Husband's counsel would be able to explore on cross-examination whether any of the omissions were intentional.

On July 12, 2013, the Wife submitted a new witness list, including three new witnesses. On July 24, the court permitted the Wife to put on the testimony of three individuals not on the April 16 list: Ms. Feder, Keith Starke and Richard Adelman. Ms. Feder then declined to testify.

The Wife ultimately testified on direct examination for all or part of five days. The questioning was often leading, repetitive and/or irrelevant. Further delay was caused by her repeated refusal to answer only the questions asked, not to volunteer information, and not to participate in legal arguments by counsel.

On August 21, the Wife again asked to enlarge her witness list to add a new expert to critique Mr. Miller's vocational report, and the court denied the application.

Background

The parties married on June 21, 1987. They have two children. At the time of trial, the older son was 19 and a sophomore at an Ivy League University, and the younger son was 17 and a junior in a private high school. The younger son is now over 18 and is no longer a minor.

The Wife's Career

In 2013, the Wife applied to and was accepted as a member of the H Club, describing herself on her application as an "Employment and Labor Attorney, Arbitrator and Mediator." In support, she submitted references that referred to her exemplary legal and community service, her career as an accomplished attorney, her creative and strategic thinking, her organizational and analytical skills and her perseverance. She successfully ran for election in May 2013 to a fourth term on her college's Alumni Association Board of Directors as an "Arbitrator, Mediator and Workplace Investigator and Trainer." The Wife's resume, business cards and email signature block all identify her as an attorney, performing "Employment Compliance Services" and "Workplace, ADR and Compliance Services." On the "Linked In" professional social network, where she claims to have 300 "connections," she identifies herself as a "Labor and Employment Arbitrator and Mediator, Human Resources Attorney and Consultant." The Wife attends continuing legal education programs keeping her current in her areas of expertise. She is an active member of many bar associations and other professional organizations, for which she spends thousands of dollars per year which she deducts as business expenses on her federal tax returns. Every September, she speaks to students at her alma mater concerning careers in the labor and employment law fields. She is also on the Board of Directors of Hillel at her alma mater, where she serves as the Board Development Co-Chair.

The Wife is capable of working as an arbitrator, mediator and workplace investigator. She is capable of earning $201,600 in her first year working as an arbitrator, mediator and workplace investigator, $252,200 in her second year and $302,400 in her third year and thereafter.^[FN5]

The Marital Lifestyle

The parties lived well but not luxuriously during their marriage. They both came from modest backgrounds. They did not spend money on buying the newest and best of everything, but instead saved money so that they would be able to put their two sons through college and graduate school without saddling themselves or their sons with debt. Their practice of saving also allowed them to pay off the mortgages on the Marital Apartment. As a result, at the date of commencement, they owned two homes with no mortgages, and had $4,000,000 in liquid assets.

The parties' average spending on selected items, from 2009 to 2011, was as follows (excluding the last few months of 2011 when the Wife's spending was extraordinarily high, as discussed further below):

The court finds that the Wife would require $12,685 per month in after tax income to live in the Marital Apartment and otherwise replicate the marital life style, as follows:^[FN6]

The Wife's Mental Health

The Wife was hospitalized for eight days in July and August 2009. In October 2010, she stayed home from work for a week, and the Husband accompanied her every morning to an appointment with her psychiatrist. She stopped taking her medication after one week, causing her psychiatrist to refuse to continue to treat her. Soon after, the Wife was back at work, presiding over an arbitration, on which she wrote a 90 page decision the following month.

The Wife was hospitalized four times in 2012: for two days in February, for thirteen days in June and July, for eighteen days in August, and from December 10 at 7:40 p.m. until December 12 at 3:00 a.m. (a hospitalization which her psychiatrist, who certified the need for her admission, testified was unnecessary). During her hospitalization in August 2012, the Wife refused to take medication, causing the hospital to consider forcibly medicating her. The Wife was well enough to use the internet to find an attorney to advocate for her release and to prevent the hospital from forcibly medicating her. She was then released, subject to the condition that she consult a psychiatrist, which led to her seeing Dr. Hadda.

When the Wife was hospitalized in December 2012, she left her younger son unattended and did not advise the Husband of her hospitalization, in direct violation of the Parenting Agreement. That, coupled with the joint custody provisions of the Parenting Agreement and the Wife's claim that her mental health precludes her from working, caused the court to appoint a Guardian ad Litem for the younger son. After submission of a report by the Guardian ad Litem, the parties retained Dr. Bernice Schaul to conduct therapy to address the effects of the Wife's Parenting Agreement violations. As a result, the Husband paid $58,058 to the Guardian ad Litem and $3,500 to Dr. Schaul.

The Parties' Separation and Post-Separation Behavior

Since the date of commencement, the Husband has paid 100% of the younger son's room and board at his university, which is $23,092 per year, or $1,924 per month.

The parties' assets are set out in detail in the spreadsheet attached as Exhibit A, together with their values at the date of commencement and the date of trial. In summary, the parties' assets include liquid assets (checking, savings and brokerage accounts) with a total value of $3,429,611 at the date of commencement, and $1,761,674 at the date of trial; non-liquid non-retirement assets, including the Marital Apartment (valued at $3,000,000), the House (valued at $1,225,000), the Husband's interest in ABC, and personalty (including a 2011 Lexus worth $37,500, silverware, jewelry and art worth $140,000, and Knicks tickets worth $15,865), with a total value of $8,501,552 at the date of commencement, and $7,871,345 at the date of trial; non-annuity retirement assets with a total value of over $1,000,000; and an annuity with a guaranteed payout of $313,844 per year for up to 10 years. In addition, the Wife has separate property consisting of an account at Citibank containing $46,715, 1.410 GE shares valued at $25,944, and 110 Mueller Industries shares valued at $4,350.

The decrease in value of the parties' liquid non-retirement assets by approximately $1,400,000 resulted primarily from: 1) the Wife's excessive spending, discussed above; and 2) the extraordinarily high cost of counsel fees in this action, which, as discussed below, is largely attributable to the Wife's inappropriate and unnecessary litigation behavior. The decrease in value of the non-liquid non-retirement assets results from the fact that the Husband's undistributed earnings of $787,654, at the date of commencement, were distributed to the Husband in 2012 and were spent on by the Wife during her period of increased spending, discussed above, and for the parties' attorneys' fees.

Attorneys' fees

The Wife has spent $850,000 for attorneys' fees and other litigation expenses in this [*8]action.

The Wife hired and fired six law firms, and was represented by a seventh at trial. Each change of counsel resulted in duplication of effort and delays. The Husband repeatedly tried to settle both the custody and financial issues in the case, but the Wife would not discuss settlement. The Wife repeatedly refused to sign a confidentiality agreement concerning ABC. The Wife also refused to have the court appoint a neutral expert to value the Husband's interest in ABC and instead hired her own expert, causing further expense.

The Wife currently seeks the following attorneys' fees:

Equitable Distribution

The premise of the equitable distribution law as it has been written and interpreted by the courts of this state is that marriage is an economic partnership (O'Brien v O'Brien, 66 NY2d 567, 585 [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:

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.

2)Duration of the marriage and age and health of the parties: The Husband is 55 years of age, the Wife is 56 years of age, and they were married for 24-1/2 years on the date of commencement. There is no medical evidence to support the Wife's claim in her April 2012 Net Worth Statement that she suffered from ankle injuries. Her early Stage 0 DCIS breast cancer was treated successfully by lumpectomy and radiation. Her claim that she suffers from mental illness is addressed in paragraph 9 below.

3)Need of custodial parent to occupy or own the marital residence: Not applicable.

4)The loss of inheritance and pension rights: Upon entry of the judgment of divorce, each party will lose the right to inherit from the other.

5)The loss of health insurance benefits upon dissolution of the marriage: The Wife is covered by the Husband's health insurance. She will have the right to continue her health insurance benefits for three years following entry of the judgment of divorce, pursuant to [*9]COBRA.

6)An award of maintenance: As set forth below, the court will award maintenance in an amount that will permit the Wife to maintain her pre-separation style of living, taking into account an appropriate income to be imputed to her and the Husband's stipulated reasonable compensation not relatable to his partnership interest ($1,100,000 per year).

7)Equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party: The Husband was the primary breadwinner, and also contributed to the marriage generally as an active parent to the parties' children. The Wife contributed to the marriage generally as a parent and homemaker, and contributed only indirectly to the Husband's interest in his law firm.

8)Liquid or non-liquid character of the property: Besides the Husband's interest in his law firm, the parties' largest illiquid asset is their $3,000,000 four bedroom marital apartment that the parties stipulated the Wife would keep.

9)Future financial circumstances of the parties: This is the critical issue in this case. There is no dispute that the Husband will continue to work at his law firm. However, the Wife contends that her mental condition prevents her from maintaining employment. The Husband contends that the Wife is exceptionally well qualified to work as an arbitrator, mediator and workplace investigator, and, that she has not proven that she suffers from any disability which precludes her from working. The court agrees with the Husband for the following reasons.

First, during the custody phase of this action, which resulted in a so-ordered Parenting Agreement that provides that it will be incorporated, but not merge, into the judgment of divorce, the Wife vigorously argued that she was healthy and mentally fit. This precludes her from taking a different position at this later phase of the litigation (see Baje Realty Corp. v Cutler, 32 AD3d 307 [1st Dept 2006]; Jones Lang Wootton USA v. LeBoeuf, Lamb, Greene & MacRae, 243 AD2d 168 [1st Dept 1998], lv dismissed 92 NY2d 962 [1998]; Estrellita A. v Jennifer D., 40 Misc 3d 219 [Fam Ct Suffolk Co 2014]).^[FN7] Her December 2012 hospitalization provides one example of the contradictions in the Wife's positions. In her brief, the Wife relies on this hospitalization for evidence of her inability to work. Yet her own psychiatrist testified that the hospitalization was unnecessary, and swore that, as of December 11, 2012, the Wife was capable of caring for herself and her son.

Second, whenever there was an activity in which the Wife wanted to engage, whether it was enrolling in the S Institute or joining the H Club, she was always able to take the necessary steps to accomplish her goals, including obtaining laudatory reference letters attesting to her extraordinary professional skills and her ability to achieve anything she puts her mind to.

Third, while the Wife certainly has been encouraged to participate in therapy and to take medication to address her issues, she has refused to take medication, and insisted that she does not need it.

Fourth, the Wife was not precluded by her alleged mental health issues from engaging in extensive volunteer work for her college and law school, and from participating actively in her own representation in this case. In fact, she even admitted in her vocational interview that she was not working for money "because of the divorce litigation." During the trial, she consulted with her counsel, took notes, located exhibits, and suggested questions for witnesses.

Fifth, the court may properly impute income to a party who has been gainfully employed in the past, but fails to show that he or she has made a "serious effort to become gainfully re-employed," (Unger v Unger, 256 AD2d 220 [1st Dept 1998]), and a "good faith effort at seeking re-employment commensurate with... qualifications and experience" (Davis v Davis, 13 AD3d 623, 624 [2d Dept 2004]). Refusing to take medication which a treating physician has advised will alleviate symptoms is not a "serious effort to become gainfully re-employed" or a "good faith effort at seeking re-employment commensurate with... qualifications and experience."

Sixth, the court properly precluded the Wife from introducing expert testimony concerning her medical condition, in light of her failure to disclose any experts at the time agreed on by the parties (Sutaria v Sutaria, 123 AD3d 909 [2d Dept 2014]).

Finally, Mr. Miller testified persuasively that the Wife is able to work.

Accordingly, the court finds that, once the Wife chooses to use the skills she has developed as an arbitrator, mediator and workplace investigator, she is capable of earning $201,600 in her first year, $252,200 in her second year and $302,400 in her third year and thereafter.

10)The difficulty of valuing marital assets: The forensic evaluator valued the Husband's interest in ABC at $3,250,000 at the date of commencement. The Husband argues in his Supplemental Memorandum, relying on Ira S. v Janice S. (4/8/14 NYLJ, http://www.newyorklawjournal.com/ id=1202650165483/Ira-S-v-Janice-S-31150307No.ixzz3O4d4u9HR [Sup Ct NY Co 2014]), that the court should consider the value of his partnership interest as of the date of trial, because of the decrease in its value as a result of the recession and the Wife's spiteful actions. The court rejects this argument for three reasons. First, the Husband asks the court to take judicial notice of various news articles to support his position. The court declines to do so, as news articles are not a proper subject for judicial notice. Second, in Ira S., the husband presented evidence as to the value of his partnership interest at the time of trial; no such evidence was presented in this case. Even with that evidence before it, the court in Ira S. determined that it was appropriate to value the husband's partnership as of the date of commencement, and to consider the effect of the Wife's actions in determining the percentages of the partnership interest to be distributed to each spouse rather than in determining the date of valuation. This court will take the same approach.

11)The tax consequences to each party: None. The court rejects the Wife's argument that the value of the Marital Apartment should be reduced by 10% to account for the possibility that she would have to pay a capital gains tax if she sells it. There is nothing in the record to support her argument, as there was no evidence as to whether or when she plans to sell the Marital Apartment. Accordingly, the court cannot speculate as to what the value of the Marital Apartment will be at that hypothetical time, whether the hypothetical sale price will be lower than the Marital Apartment's current value (thus reducing any capital gains tax owed), or what the capital gains tax rate will be at the time of this hypothetical sale. If the Wife resides in the Marital Apartment for life and bequeaths it to her sons, she will never pay the $300,000 capital gains tax that she seeks to collect from the Husband in this divorce action. Therefore, the court will value the Marital Apartment at the appraised value.

12)The wasteful dissipation of assets: The Wife has dissipated marital assets, by hugely increasing her expenditures after the parties separated, by her dilatory tactics before the trial, and by her delays and frivolous actions during the trial. This conduct vastly increased the cost of the trial and vastly reduced the amount left to be distributed. More specifically, and as set forth in greater detail below, the parties' liquid assets decreased from $3,429,611 at the time of commencement in January 2012, to $1,761,674 on September 30, 2013, the date the trial ended, a decline of $1,667,937 in a period of less than two years. All of this money, plus the Husband's earnings during that period (plus whatever appreciation and interest the parties were able to realize on their savings before they were spent) were spent on the Wife's inflated life style, the Husband's living expenses at the pre-divorce level, and the parties' attorneys' fees and costs, which can be largely attributed to the Wife's frivolous conduct, repeated changing of attorneys, and excessive delays. This contrasts sharply with the parties' conduct prior to the divorce when they not only lived within the Husband's salary but also were able to accumulate substantial savings.

The Wife also wasted marital assets by: (1) failing to cooperate with filing joint tax returns, resulting in a waste of $23,916; (2) failing to submit medical and dental charges for insurance coverage, resulting in a waste of $23,624; and (3) engaging in conduct that led to the appointment of a Guardian ad Litem and therapy, leading to expenditures of $61,558.^[FN8]

13)Transfer in contemplation of action: None.

14)Any other factors: The Wife's conduct in forwarding the Husband's mail to a post office box in her sole name without his authorization was in apparent violation of several federal laws. This conduct, undertaken by a lawyer and a member of the Bar, is egregious and shocks the conscience (O'Brien v O'Brien, 66 NY2d 576, 589 [1985][marital fault may be considered as a factor in equitable distribution in "egregious cases which shock the conscience of the court"]; see also Howard S. v Lillian S., 14 NY3d 431 [2010][egregious conduct not limited to extreme violence]; Levi v Levi, 46 AD3d 520 [2d Dept 2007][attempt to bribe judge constituted egregious fault]).

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 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.

Domestic Relations Law Section 236(B)(4)(b) provides in pertinent part: "...The valuation date or dates may be any time from the date of commencement of the action to the date of trial."

As to the valuation of specific assets, the court in Wegman v Wegman (123 AD2d 220, 234 2d Dept 1986) found that

The Husband proposes that the court award the Wife approximately 42% of the remaining assets other than his law practice, or 33% of all remaining assets including his law practice. He proposes that this be accomplished by an 80%-20% split of remaining liquid non-retirement assets, a 90%-10% split of his law practice, a 50%-50% split of illiquid assets, a 50%-50% split of retirement assets, and offsets for (1) waste of marital assets involving unnecessary tax payments, (2) waste of marital assets involving medical insurance claims, and (3) expenses [*10]paid to the Guardian ad Litem necessitated by the Wife's breaches of the Parenting Agreement. This would mean that she would receive a $3,000,000 mortgage-free four bedroom apartment, a $35,000 car, over $400,000 in liquid assets, over $700,000 in retirement assets, 50% ($156,922 per year) of an annuity providing the Husband $313,844 a year for life with a ten year guarantee once the Husband retires, and that she would owe him approximately $725,000, which he proposed that she pay him in June 2016, one year after the younger son graduates from high school, with statutory interest compounded monthly, if not paid when due. He proposes that she could pay him with any combination of (1) current income; (2) retirement assets; and/or (3) proceeds from refinancing or selling the Marital Apartment.

In each of his Statements of Proposed Disposition, the Husband proposed that the Wife receive 20% of the value of his interest in ABC. However, in his trial brief, he proposed that she receive 10% of the value, apparently because her conduct during the trial demonstrated a lack of concern and even recklessness toward his standing in ABC.

The Husband's proposal that the Wife receive 10% of the value of his law practice is based on the Wife's limited indirect contributions to the asset, the inclusion in the valuation of contributions made to retirement funds that he proposes she receive 50% of, the likely decline in value of this asset based on the Husband's sharp decrease in income in the last few years, and the Wife's actions which he argued diminished his standing at ABC. He points to Justice Drager's decision in Ira S. v Janice S., supra, in which she awarded the Wife 17% of the value of the husband's law firm interest. He argues that the Wife's conduct here included:

The Wife proposes that all liquid assets, all retirement assets, the Husband's annuity benefit from ABC, and the value of the Husband's law firm be divided equally. The only cases that the Wife cites to support her argument that she should receive 50% of the value of the Husband's interest in ABC distribution are White v White (204 AD2d 825 [3d Dept 1994]) and Anonymous v Anonymous (289 AD2d 106 [1st Dept 2001]).^[FN9] However, more recent cases have awarded the non-titled spouse much smaller percentages (see, e.g., Charap v Willett, 84 AD3d 1000 [2d Dept 2011][Wife properly awarded 10% of value of husband's law practice where she made only indirect contributions and had her own legal career]; Davis v O'Brien, 79 AD3d 695 [2d Dept 2010][award to plaintiff of 50% of value of defendant's law partnership reduced to 20% on appeal, where plaintiff successfully embarked on her own career and made only indirect contributions to defendant's career]; Giokas v Giokas, 73 AD3d 688 [2d Dept 2010][wife properly awarded 10% of value of husband's business interest where she made only indirect contributions and had been employed outside the home]; Peritore v Peritore, 66 AD3d 750, 752-53 [2d Dept 2009][award of 40% of value of husband's dental practice to wife reduced to 15% on appeal, where she made indirect contributions and had own career]).

The Wife has already received substantial equitable distribution in the form of her extravagant spending on her new upscale lifestyle, financed in part with the Husband's income and in part with marital assets that would otherwise have been divided but now are gone and cannot be distributed a second time. The money that is gone would have been used, among other things, to pay for the parties' sons' college education.

The parties agreed that the Wife would retain possession of the Marital Apartment and that the Husband would retain possession of the House. As to personalty, the parties agree that the Wife should retain the parties' Lexus, and they agree generally, that she should retain the contents of the Marital Apartment, except a few items, and that the Husband should retain the contents of the House, except a few items. They disagree as to the details as to which items the Husband should take from the Marital Apartment and as to which items the Wife should take from the House, but neither presented any testimony as to these contested items, so the court will determine the allocation of those based on the persuasiveness of their testimony as to their emotional and sentimental claims to those items.

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:

The Husband proposes that he pay the Wife support of $16,000 per month for one year, $11,000 in year two and $8,000 per month for the following six years.

As set forth in the table below, the court awards her maintenance sufficient to provide her with $35,000 per month in taxable income for the next eight years (retroactive to March 14, 2013, the date of her application for support), which will give her substantially more after tax income than she will need to pay for her expenses; indeed, if she lives at the premarital standard of living, she will be able to save a considerable amount each year.

Child Support

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. While Section 240(1-b)(b)(5) of the Domestic Relations Law provides that income for purposes of calculating child support is the "gross (total) income as it should have been or should be reported in the most recent federal income tax return," courts may rely upon partial information from a tax year not yet completed, and may base income on average projected income (Culhane v Holt, 28 AD3d 251 [1st Dept 2006]; Kellogg v Kellogg, 300 AD2d 996 [4th Dept 2002]). A court is not required to rely upon a party's own account of his or her finances and may impute income based upon his or her past income or demonstrated earning potential (Culhane v Holt, supra).

The Wife's adjusted gross income for the purposes of child support is $378,000.^[FN12] The Husband's adjusted gross income for the purposes of child support, based on his 2012 tax return, is $1,885,959.^[FN13] The combined parental income for purposes of child support is $2,263,959. The prorated responsibility between the parents for child support obligations is 83% for the Husband and 17% for the Wife.

For child support until one child is emancipated (the older child will turn 21 on February 9, 2015), the appropriate child support percentage is 25%. On the first $141,000 of combined income, applying a child support percentage of 25%, the Husband's annual obligation would be $29,257.50 per year for basic child support ($141,000 X .25 = $35,250 X .83 = $29,257.50), unless the court finds that this would be unjust or inappropriate after consideration of the factors [*16]in subsection set out in "f" of Section 240(1-b) of the Domestic Relations Law.

However, since the combined parental income exceeds $141,000, 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 based on parental income above $141,000, 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 finds that an award based on income above $141,000 is appropriate. Given the combined parental income, the children would have enjoyed a very comfortable lifestyle had the marriage not ended. However, the court further concludes that the award should not be based on the full combined parental income. Given the parental income, the family's lifestyle during the marriage, and the children's reasonable needs, the court finds that application of the statutory formula to parental income up to $350,000 is appropriate.

Using that figure to calculate child support for two children would result in a combined basic child support obligation in the amount of $87,500 per year, of which 83%, or $72,625 per year ($6,052.08 per month) would be allocated to the Husband.

After one child becomes emancipated, the Husband shall pay the Wife basic child support of $4,115.42 per month ($350,000 X .17 =$59,500 X .83 = $49,385/12 = $4,115.42) until the second child is emancipated.

Section 240(1-b)( c )(7) of the Domestic Relations Law permits the court to award educational expenses, including college expenses, "having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires ." The factors courts consider in deciding whether to obligate a non-custodial parent to contribute to a child's college expenses include factors include the educational background of the parents and their financial ability to provide the necessary funds, the child's academic ability and endeavors, and the type of college that would be most suitable for the child (see Rosado v Hughes, 23 AD3d 318 [1st Dept 2005]; Pamela T. v Marc B., 33 Misc 3d 1001 [Sup Ct NY Co 2011]; Naylor v Galster, 48 AD3d 951 [3d Dept 2008]; Reiss v Reiss, 56 AD3d 1293 [4th Dept 2008]). Here, it is appropriate to direct payment of college expenses as part of the child support award, particularly since the parties contemplated throughout their marriage that they would pay for their sons' college educations. However, the funds the parties saved for their sons' college education expenses were either dissipated by the Wife, as discussed above, or will be distributed in accordance with this decision, 65% to the Husband and 35% to the Wife. Accordingly, the Husband shall contribute 65% and the Wife shall contribute 35% of the costs of each child under 21 attending a private university or college, including tuition, room and board, books, computers, and reasonable transportation costs for four round trips between home and school each year, if such costs are necessary. The cost of college advising and college trips for the younger son shall be shared by the parties in the same manner, up to a total cap on such expenses [*17]of $25,000, the approximate amount paid for the older son. Any amount in excess of that should be shared equally by the parents. The Husband shall be permitted to deduct from basic child support that portion of college expenses he has paid for a child under 21 which is attributable to room and board (Azizo v Azizo, 51 AD3d 438 [1st Dept 2008]).

With respect to other "add-on" expenses, the Husband agreed to maintain the children on his health insurance policy and to pay 100% of this cost, until each child turns 21. The parties shall share the cost of unreimbursed medical, dental, optical, and mental health expenses for each child until he is 21 according to their pro rata shares, with the Husband paying 83%, and the Wife 17%, of such expenses within five days following receipt of documentation that they have been incurred.

The Wife shall be entitled to claim the older son as a dependent for tax purposes, and the Husband shall be entitled to claim the younger son as a dependent for tax purposes, for so long as permitted by applicable law.

The Husband may take a credit against retroactive awards for all payments made previously for spousal and child support during the pendency of this action.

Counsel Fees

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]), including the financial circumstances of the parties, the relative merits of the positions taken at trial, and any dilatory tactics the court finds that a party undertook during the litigation (Warner v Houghton, 43 AD3d 376 [1st Dept 2007]).

In this case, the Wife has already spent approximately $850,000 in marital assets to pay attorneys' fees and other litigation expenses to:

In determining an award of counsel fees, a court may properly consider one party's unnecessarily prolonging the litigation and escalating costs (Maldonado v. Maldonado, 100 AD3d 448 [1st Dept 2012]; Schorr v Schorr, 46 AD3d 351, 351 [1st Dept 2007]; Kurtz v Kurtz, 1 AD3d 214, 215 [1st Dept 2003]; Lammers v Lammers, 227 AD2d 255, 255 [1st Dept 1996]; Meyn v Meyn, 119 AD2d 645 [2d Dept 1986]). Thus, "[a] party who has engaged in conduct resulting in unnecessary litigation may properly be denied an award of an attorney's fee ." Chamberlain v Chamberlain, 24 AD3d 589, 595 [2d Dept 2005]; see also Tenore v Tenore, 110 AD3d 711 [2d Dept 2013]; Lyman v Lyman, 108 AD3d 653 (2d Dept 2013]). In this case, the Wife's unreasonable conduct, which resulted in unnecessary and costly litigation, included:

Finally, the Wife's expenditure of an enormous amount of marital funds on her own unnecessary counsel and expert fees, which is a factor in the diminution of the marital assets between the date of commencement and the date of trial, far exceeds what this court would have awarded her as the 'less monied' spouse. In view of this history, the court will not award any further attorneys' fees to the Wife.

The court will not order that the Wife pay any sanctions to the Husband, as the court has considered in deciding equitable distribution and attorneys' fees the conduct by the Wife which the Husband alleged merited the imposition of sanctions.

IT IS ORDERED that the Husband's counsel shall settle judgment in accordance with this decision within 60 days of the date of this decision; and it is further

ORDERED that, if the Judgment of Divorce and other documents necessary for its entry are not filed with the Matrimonial Clerk within 60 days of the date of this decision for any reason, the parties and counsel shall appear in Part 24 on April 10, 2015 at 9:30 a.m.

This constitutes the decision and order of the court.

Dated:January 26, 2015ENTER: