This matter is before the Court for a determination, after trial,^[FN1] of the issues arising out of the parties' action for divorce. The issues include the equitable distribution of marital property, [*2]custody of the minor children, parenting time, domestic violence, the commission of a Family Offense pursuant to the Family Court Act, dissipation of marital assets, the violation of automatic orders and counsel fees. The Court presided over a trial of this matter on November 15, 16, 17, 20, 27, 28, 29, 30, December 1, 4, 5, 6 and 7, 2023. Post-trial submissions were received on March 11, 2024.^[FN2] Upon consideration of the testimony and the documents admitted into evidence, the Court hereby makes the following findings of fact and reaches the following conclusions of law:

The parties were married on July 3, 2006, in New York, New York. There are two (2) unemancipated children of the marriage: twins, "MM" and "YM" (born XX XX, 2016). Plaintiff commenced this divorce action on February 7, 2023, by electronically filing a Summons with Notice for the dissolution of marriage pursuant to Domestic Relations Law (hereafter "DRL") §170(7). Plaintiff filed a Verified Complaint on March 10, 2023, pursuant to a Demand for Complaint filed on February 13, 2023. Defendant filed a Verified Answer and Counterclaim for divorce pursuant to DRL §170(7). Plaintiff filed a Verified Reply to Counterclaim on March 23, 2023.

Plaintiff, M. J., is fifty-four (54) years of age and holds bachelors, masters and juris doctorate degrees. She began her legal career in Seattle, Washington. In October 2001, Plaintiff relocated to New York and worked first at a sole proprietorship and then at the Legal Aid Society (hereafter "Legal Aid") in New York City. Upon leaving Legal Aid, Plaintiff held various other positions and opened her own law firm. The parties met in December 2003 and were married on July 3, 2006. As stated above, they are the parents of twin children, MM and YM, born on XX XX, 2016. Plaintiff returned to regular employment in 2021.

Plaintiff and the children have resided in the marital residence (XXXXX, Bronxville, New York 10708) since 2016. The residence was purchased on January 4, 2016, for $1,296,750 and is not encumbered by a mortgage. Plaintiff is an immigration attorney and is employed full-time as Senior Counsel at K.I.L.P., LLP ^[FN3] in Philadelphia, Pennsylvania. She works virtually from home.

A Temporary Order of Protection was issued by the Westchester County Family Court in favor of Plaintiff and against Defendant on February 2, 2023, removing Defendant from the marital residence. The Temporary Order of Protection was extended by the Court until June 21, [*3]2024, when the Court allowed it to lapse.^[FN4] The Defendant presently resides at XXXXX, Tuckahoe, New York. He is employed by I.B., Inc.^[FN5] as a Vice President and Head of Global Oncology Partnering.

Plaintiff filed an Order to Show Cause on February 17, 2023, seeking an Order pursuant to Civil Practice Law & Rules (hereafter "CPLR") §602(b), consolidating proceedings pending in the Westchester County Family Court with this action, and staying the Family Court matter pending consolidation.^[FN6] The motion was resolved by an Order of Consolidation on Consent signed by this Court on March 10, 2023.^[FN7]

The parties, both represented by counsel, appeared at a Preliminary Conference on March 14, 2023. Pursuant to the Preliminary Conference Stipulation/Order ("PC Order"), the parties were directed to attend parent education classes.^[FN8] After negotiation at the Preliminary Conference, the parties entered an interim access schedule for the children, as follows: Defendant was granted daily phone calls and Facetime visits, as well as weekly parenting time every Friday evening from 6:00 p.m. to 8:30 p.m. and every Sunday afternoon from 1:00 p.m. to 5:00 p.m.^[FN9]

On March 15, 2023, the Court issued Orders appointing Jane Moss of Jane Moss Appraisals to determine the present-value of the marital residence,^[FN10] and Andrew W. Szczesniak, Esq., as Attorney for the Children (hereafter "AFC").^[FN11] The Orders directed that the parties pay the expert fees pro rata, with Plaintiff responsible for 32% of the fees and Defendant responsible for 68% thereof.

The parties appeared for a compliance conference on May 16, 2023. As a result of the conference, they consented to an Order which provided, in relevant part, that Defendant would enroll in therapy pursuant to the Court's directives. Upon proof of the Defendant's enrollment and completion of one therapeutic session, and commencing on June 2, 2023, Defendant was granted overnight parenting time with the children every other weekend from Friday after school or camp, until Sunday at 7:00 p.m., with drop-off at the Plaintiff's residence. The parties agreed [*4]that the AFC would hold the children's United States passports in escrow, pending further order of the Court. Additionally, it was agreed that Defendant would pay pendente lite child support to the Plaintiff in the sum of $2,500.00 per month, commencing on June 1, 2023, retroactive to the date of commencement of the action and without prejudice to a final order. Add-on expenses to child support were pro-rated at 30% payable by Plaintiff, 70% payable by Defendant.^[FN12]

Plaintiff filed a Note of Issue and Certificate of Readiness for Trial on August 18, 2023.^[FN13]

On October 3, 2023, the Court signed Defendant's Order to Show Cause ^[FN14] seeking to quash a subpoena dated September 21, 2023, for testimony and records from non-party witnesses. Plaintiff filed a Cross-Motion ^[FN15] on October 17, 2023, seeking the denial of Defendant's motion and an award of counsel fees. The motions were resolved by an Order entered October 31, 2023, whereby the Court denied Defendant's motion to quash and granted Plaintiff's motion except for the denial of counsel fees. The Court permitted the parties to renew their counsel fee applications at the time of trial.^[FN16]

The Court issued a Trial Ready Order on November 6, 2023, scheduling the trial of this action to commence on November 15, 2023.^[FN17]

Defendant filed an Emergency Order to Show Cause on November 10, 2023 and on November 20, 2023,^[FN18] seeking to have the Court (i) so-order trial subpoenas for Plaintiff's providers at New York Presbyterian-Westchester Behavioral Health, Dr. Hasan Asif of Brain Wellness Center, Dr. Alla Iospa, and Dr. Eva G. Mihovich, Ph.D.; (ii) compel Plaintiff to sign HIPAA authorizations to accompany the subpoenas; and (iii) issue a Judicial Subpoena Duces Tecum to the Town of Eastchester Police Department pursuant to CPLR §§ 2302 and 2307. Motion Sequence No. 5 was denied on NovembeM.J. v F.M. (2025 NY Slip Op 50550(U))r 15, 2023; Motion Sequence No. 6 was granted on November 27, 2023.

On November 17, 2023, Plaintiff filed a Notice of Motion to So-Order Subpoenas to the Tuckahoe Union Free School District and S.P. The motion was granted on November 20, 2023.

By Court Notice dated February 15, 2024, Post-Trial Briefs were ordered to be submitted by March 11, 2024.

Plaintiff testified she is a victim of domestic violence. She testified to a history of threats, [*5]verbal abuse and criticism throughout the marriage, culminating in a physical assault on February 1, 2023. Plaintiff admitted that for most of the children's lives, she has been gathering evidence in the form of voice recordings to use against the Defendant. Several recordings of the Defendant's interactions with the children were offered in evidence at trial.^[FN19]

Plaintiff testified she is afraid of the Defendant and that he has threatened to punch her in the face and slap her.^[FN20] She stated Defendant screamed at her because, in his opinion, she would "never learn."^[FN21] Plaintiff testified that Defendant repeatedly criticized her in front of the children about her clothing, weight, laugh, mothering and cooking; he told her she did not deserve respect.^[FN22] Plaintiff testified she decided to seek a divorce because if she did not leave, she believed the Defendant eventually would kill her.^[FN23]

Plaintiff testified that on May 24, 2021, Defendant threw a half gallon of milk at her (and missed) because she told him she did not have time to make breakfast for Defendant and his mother before reporting to work that morning. While Plaintiff did not file a police report, she testified that she texted her friends and reported the incident to her boss and the human resources department of her employer.

Plaintiff testified to another incident which occurred on February 1, 2023. Plaintiff stated the children were playing ball in the kitchen near the counter while she was making dinner. Plaintiff testified Defendant heard her reprimanding the children and he screamed "I don't know how you can live with yourself." Plaintiff testified she replied with something like "oh, well, maybe I shouldn't. Maybe I should just kill myself," while gesturing toward her body with a butter knife in her hand. Plaintiff testified that she had no intention of harming herself when she made the gesture. Plaintiff stated she put the knife on the counter and went upstairs to her office, but Defendant followed her, grabbed her wrists and continued screaming. She testified she tried to turn away from Defendant and he pulled her hair like he was going to drag her and then grabbed her wrists again. Plaintiff stated she was backed into a corner and Defendant raised his fist as if he was going to beat her, when MM entered the room causing Defendant to leave. Plaintiff explained she did not call 911 because she wanted to protect the children from further upset. Plaintiff stated she tried to talk to Defendant about the incident later that evening and he stated "I wish I'd done more to you. You deserve more."^[FN24] The next morning Plaintiff called the Eastchester Police Department and left a message. On February 2, 2024, she filed a Family Offense Petition in the Westchester County Family Court and corresponded with the children's school about the incident.

Plaintiff remains fearful of the Defendant, as stipulated by Defendant's counsel.^[FN25]

The Defendant essentially denied Plaintiff's allegations of abuse; he testified that Plaintiff's testimony was not always truthful ^[FN26] and that he does not believe she is afraid of him.^[FN27] With respect to the allegation that he threw a half gallon of milk at Plaintiff for not cooking breakfast, Defendant testified that he opened the refrigerator and a container of orange juice simply "fell out."^[FN28]

With respect to the February 1, 2023 incident, Defendant denied threatening Plaintiff, pulling her hair or cocking his fist at her,^[FN29] but admitted to following Plaintiff upstairs to her office and grabbing her wrists.^[FN30] Defendant testified he grabbed Plaintiff's wrists to calm her down, but admitted that Plaintiff immediately started "screaming, stop, stop, stop, stop . . . " and he did not let go ^[FN31] until their child, MM, entered the room. Defendant admitted that Plaintiff was "very, very upset" and that he closed the door behind himself when he left the office. Although Defendant initially stated he was attacked by Plaintiff, he thereafter admitted otherwise. In fact, he stated that he is not scared of Plaintiff and never feared for his safety.

Defendant admitted that approximately one and one-half weeks after he was served with the Temporary Order of Protection, he violated the Order by sending Plaintiff flowers without signing his name.^[FN32]

S.P., School Psychologist

Plaintiff subpoenaed S.P. (hereafter "P."), a psychologist at the XXXXX Elementary School, to testify regarding her interactions with the parties' children after the February 1, 2023 incident. P. stated that her primary parental contact is Plaintiff, and that she has had no communications that she can recall with Defendant. P. acknowledged receipt of e-mails from the Plaintiff regarding the February 1, 2023, incident. The e-mails stated as follows:

(Feb. 6, 2023) Dear Principal Morash and Ms. [P.] — as I discussed with Ms. [P.], my husband got violent with me last Wednesday and I have an order of protection. He was required to vacate our home and I have temporary custody of the children until at least Wednesday, when we have court. He is not allowed to check the kids out of school. I do not currently give my permission for that given his shocking behavior and his [*6]growing verbal abuse and aggression not only toward me, but toward our kids. Please let me know if you need any additional information and I would appreciate if Ms. [P.] and Ms. Silva could meet with the children as they are having anxiety and fear and concern about the entire situation. Thank you. [M.J.]^[FN33]

(Feb. 9, 2023) Dear Ms. [P.] — thank you for your support. The family court judge left the order of protection in effect and we agreed that my husband could take the kids to dinner on Fridays between 6-8:30 and then spend Saturdays from 1 to 5 pm with the kids. I allowed this limited schedule because the kids said that they wanted to "have dinner with him but not stay overnight."

The court appointed an attorney for the kids because my husband's lawyer raised a question as to my fitness as a parent. Interesting that 5 mins later she also said that he travels so much for work he can only see the kids on weekends. So I guess they take the position that it is ok to leave the kids with someone "unfit" sometimes for weeks at a time because that is more convenient for the parent who has been physically violent and emotionally abusive. Mind boggling.

We go to court again next week — it was supposed to be 2/14 but my lawyer has a conflict, but I will keep you posted. In addition, after family court he was served with the divorce papers. I spoke with the boys about the situation and they seemed relieved but remain concerned, apprehensive and nervous. I am searching for support for them, as especially [YM] has been having tantrums at home (outwardly about iPad limitations but I know it's deeper than that).

My husband was apparently very angry about being served with divorce papers and I remain concerned for my safety.

Thank you so much for your care and support of the boys. They really need it. Thank you.^[FN34]

P. testified to her belief that Plaintiff was oversharing information with her and with the children.^[FN35] She stated the children were picking up on Plaintiff's stress and that she and Plaintiff discussed the need to limit the children's exposure to adult conversations. She testified as follows:

I wanted mom to be aware that [the boys] know things. It was — in my mind, it was potentially them overhearing something or it could have been her saying something, but I wasn't positive of that. It could have been from someone else in the family.^[FN36]

In response to a question about whether MM discussed witnessing violence in the home, P. replied, "I'm hesitating with defining violence, but yes. I believe he said that dad tried to [*7]hurt mom or hurt mom and they were yelling, so there was some negative interaction. He didn't go into details of exactly the way it went down."^[FN37] P. related that after the February 1, 2023 incident, MM told her he was fearful that Defendant would return to the marital residence and hurt Plaintiff.^[FN38] P. testified that both children were fearful that the Defendant would lie and say Plaintiff harmed him, so that Plaintiff also would be arrested. Additionally, P. stated that YM spoke of the incident by relating hypotheticals about "bad guys." She opined that both boys were fearful of someone entering the home and "doing something."^[FN39] As of the date of her testimony, P. believed that " . . . [the boys] seem to be doing okay in school."^[FN40]

Police Officer John Blume

Police Officer John Blume (hereafter "Blume") was called to testify by Defendant, out of order, for the purpose of offering the police report of the February 1, 2023, incident in evidence. Blume testified he interviewed Plaintiff at the Eastchester Police Station on February 2, 2023. He stated "Ms. J. came in. We got her correct information down. She explained what happened." Because the incident involved her husband, Blume and Plaintiff completed a domestic incident report (hereafter "DIR"). Blume testified that Plaintiff never told him that Defendant pulled her hair or cocked his fist at her. In response to questioning about the contents of the report, Blume explained that "whatever the complainant tells you is generally what goes on the report.^[FN41] He stated Plaintiff did not wish to have Defendant arrested, and that she was going to apply for an order of protection in Family Court later that day. Blume testified that he and his sergeant served the order of protection on Defendant without incident.

Plaintiff seeks an award of sole custody of the children, subject to the Defendant's access on alternate weekends (Friday through Sunday at 7:00 p.m.) and overnight on alternate Thursdays after school or camp.^[FN42] While she originally stated she would like Defendant's parenting time to be supervised, she later recanted and stated that supervision wouldn't work with an overnight schedule. Plaintiff testified that Defendant "needs treatment for his anger issues, and as lO. as he does that, [she is] more comfortable with him being with the kids.^[FN43] Notwithstanding Plaintiff's stated position that the Defendant is abusive, manipulative and in need of anger management,^[FN44] she admitted to enlisting Defendant's help when the children fail to [*8]listen or are difficult.^[FN45] Plaintiff testified that on one occasion when the children were running late to catch the school bus, she " . . . had [the child] call his dad because [she knew] that . . . he's afraid of his dad so he's more likely to listen to him and he wasn't listening to me on that particular occasion and the time was running out to get to the bus, so I had him call his dad."^[FN46]

Plaintiff stated she has been the primary parent in the children's lives; she generally handled their medical appointments, packed school lunches, made dinner, purchased clothing and helped with homework.^[FN47] Her role as primary parent was magnified by the Defendant's regular travel for business and pleasure, during which times the Plaintiff would be alone with the children.^[FN48]

In response to questioning by Defendant's counsel, Plaintiff acknowledged that in 2013 she was diagnosed with depression and anxiety. Plaintiff has since been diagnosed with bipolar disorder and depression;^[FN49] in 2020 Plaintiff was psychiatrically hospitalized for one week. Plaintiff voluntarily admitted herself for treatment. She testified she takes her medication as prescribed and follows all treatment recommendations.

Defendant seeks an order granting the parties joint legal and physical custody of the children, conditioned upon Plaintiff's continued participation in therapy and proper use of prescribed medication. He seeks regular notifications of Plaintiff's cooperation on this issue.

The Defendant acknowledged that Plaintiff " . . . was the primary caregiver for the children for the majority of their lives."^[FN50] His testimony focused on the Plaintiff's psychiatric hospitalization in 2020, and her diagnosis of either bipolar disorder or a combination of anxiety and depression. Nevertheless, the Defendant acknowledged that (i) he has no concerns for the children's safety in Plaintiff's care;^[FN51] (ii) in 2021 he travelled to Boston for two or three days every two weeks in addition to his international travel and left the children in the Plaintiff's care;^[FN52] (iii) the Plaintiff regularly takes her prescribed medications;^[FN53] (iv) even with mood [*9]changes in 2020, Plaintiff's parenting was not affected;^[FN54] (v) Plaintiff has assumed responsibility for the children's physical and emotional care throughout their lives;^[FN55] and (vi) he was uninvolved in the selection or payment of providers for the children's occupational therapy and tutoring.

Defendant testified he did not know which child was being tutored, but that he had received an invoice for tutoring from counsel. Defendant stated he refused to pay for the tutoring because he was not consulted.^[FN56]

Defendant acknowledged the Court's directive to enroll the children in therapy.^[FN57] While he testified that he did not know whom Plaintiff selected to treat the children, the evidence reveals that Plaintiff selected Dr. Marc Abrams and informed the Defendant of their first appointment through Our Family Wizard (hereafter "OFW") on April 20, 2023, prior to the appointment.^[FN58] The Defendant testified that although he found negative reviews about Dr. Abrams in April 2023, he did not inform Plaintiff of same until September or October of that year.^[FN59] He stated he objected to using Dr. Abrams, but admitted he did not suggest an alternate therapist until November 2023.^[FN60]

The parties are unable to cooperate on numerous issues involving the children. They have different, inconsistent and often opposing parenting styles. While Defendant believes the parties can co-parent, Plaintiff testified that the Defendant has questioned her parenting skills and failed to show respect for her in front of the children.^[FN61] She stated that she and Defendant disagree on how to discipline and comfort the children. Plaintiff believes the parties' relationship makes it impossible for them to attend the children's extracurricular activities or school conferences together. She testified it would be "very hard" to engage in joint decision making with the Defendant because he bullies and manipulates her and demands to get his way.^[FN62]

The parties disagree on the issue of religious training for the children. Plaintiff stated she is "a secular Christian, sort of"^[FN63] and that she " . . . wasn't really raised with any particular [*10]religious background," but was exposed to Christianity. Plaintiff testified she does not want the children enrolled in formal religious training. Plaintiff wishes to allow the children to choose a religion for themselves when they are old enough. To the contrary, Defendant testified that he is Muslim and celebrates both Eids. He testified he would like the children to be raised Muslim and enrolled in religious education. Notwithstanding the foregoing, on cross examination the Defendant also stated he is "secular,"^[FN64] but also Muslim, Jewish and Christian ^[FN65] and that he celebrates all three faiths.^[FN66] On cross-examination, Defendant was asked " . . . is it your position that you are secular, sir?" Defendant responded, "I am Muslim. And I practice — I pray. I do Ramadan. So I fast the month of Ramadan. But in the same time, I celebrate Christmas. And it's fine with me. I don't think that there is any discrepancy there."^[FN67]

K. O.

Plaintiff called her friend and former co-worker, K. O. (hereafter "K. O."), to testify on her behalf. K. O. testified she has known Plaintiff since approximately 2007, and that they met while working at the F. law firm.^[FN68] She stated she met Defendant for the first time at the F. Christmas party in 2007.^[FN69] K. O. testified she observed interactions between the parties and witnessed Defendant's treatment of Plaintiff. She stated that Defendant was "dismissive" toward Plaintiff in front of the children;^[FN70] that he is "really good at manipulating things,"^[FN71] and that "[h]e was just cruel. Unnecessarily picking and breaking down somebody's physical appearance, emotional appearance, making her feel discarded. Like, just the things that he would say and how he would just look at her with so much distaste. It just made anybody who was around uncomfortable."^[FN72] When asked by counsel if K. O. believes the Defendant has an anger problem, she replied "I'm not a clinician, but I would say he lacks — I don't think he has a lot of patience sometimes, and anger is, yeah, a word that I would describe (sic). He would just get mad at a lot of things."^[FN73]

On cross-examination, K. O. admitted she had recently been told by Plaintiff that [*11]Defendant was seeking sole legal and physical custody of the children, which was incorrect.^[FN74]

Marital Residence - XXXXX, Bronxville, NY 10708

Plaintiff testified she resides in the marital residence at XXXXX, Bronxville, New York. She stated she purchased the home with money her father gave her from her inheritance.^[FN75] She put Defendant's name on the on the deed because she was pregnant with the twins at the time and " . . . was afraid that if [she] didn't he would — he was constantly kind of putting pressure on [her] to do it, and [she] was afraid that if [she] didn't, he would divorce [her] or something like that would happen. He was constantly . . . putting pressure that [she] had to do it."^[FN76] In response to questions from her attorney, Plaintiff testified that she did not intend to gift the home to Defendant by placing his name on the deed. Instead, she expected that if the house was sold, she would receive her initial contribution.^[FN77]

On cross-examination, Defendant's counsel pointed to discrepancies between Plaintiff's testimony at her deposition and her testimony at trial.

Q: Ms. J., did you believe, when you purchased your residence, that it was only fair for you to include Mr. M. on the deed?

A: I — that was part of my understanding of what was going on, but at the time I felt compelled and forced and intensely pretty much had to put his name on the deed.

Q: Do you remember giving a deposition in this proceeding?

A: Yes, I do.

Q: I'm going to read you a question and answer that you gave at the deposition.

. . .

Q: 'QUESTION: So then, how would you not say you gifted him the property? Can you explain why you would put him on the deed? A: I put him on the deed because I was out-to-here pregnant. I thought we would have a life together and he told me to put he told me he put me on the deed for the house in Morocco, and I figured it was the only — it was only fair to put him on this deed, but he lied about the house in Morocco. I wish I had not put him on the deed. Do you remember being asked that question and giving that answer?'

A: Yes, I Do.

Q: Okay. Why did you not state in your deposition that you were pressured to put him to the deed — put him on the deed?

A: I don't — I don't know why I didn't at the time, but I — I guess I felt nervous and I didn't give a complete answer, but I was . . .^[FN78]

Plaintiff further testified that the parties split the expenses for the marital home. She stated "[w]e shared a lot of the expenses for the house. And he paid a little bit more than I did, some of the expenses, but I paid the babysitter and things like that. So, it seemed to me to be a wash between us. . . . I mean it was about equal."^[FN79]

Plaintiff testified she would like to have the home distributed to her and to live there with the children. If the home is sold, Plaintiff seeks a separate property credit for the purchase price of the property paid by her ($1,296,750.00) and to share any remaining net proceeds equally with Defendant.^[FN80]

Defendant submits the property should be sold at fair market value and the parties should divide the net proceeds equally; alternatively, Defendant seeks an order permitting either party to buy out the other party's one-half share of the marital residence.^[FN81]

XXXXX, Teton Village, Wyoming

Prior to trial, the parties stipulated that Plaintiff is the sole title owner to property located at XXXXX, Teton Village, Wyoming, and that the property was transferred to Plaintiff from her brother, M. Y. J., by Warranty Deed dated May 4, 2016.^[FN82] Plaintiff asks the Court to recognize that the Wyoming property is her separate property, held in her name, and to grant the property to her as part of equitable distribution. Plaintiff testified as follows:

Q: The Wyoming property, where is that located?

A: Teton Village in Wyoming.

Q: Have you ever resided there on a full-time basis?

A: No.

Q: Has your husband ever resided there on a full-time basis?

A: No.

. . .

Q: Who did you acquire the deed from?

A: My brother did like a warranty deed or something like that over to me because the property was intended for me. My father used some of what was left of my inheritance money to buy that property he transferred to me.

. . .

Q: Why were you given the Wyoming property?

A: As part of my inheritance.

Q: From whom?

A: My father.

Q: Is your father alive?

A: Yes.

Q: Why do you believe it's part of your inheritance?

A: Because money was distributed to each of his children and that was understood to be each of our inheritance.

. . .

Q: Have you ever provided legal services to your father?

A: No.

. . .

Q: When was the last time your father got divorced?

A: 2016.

Q: Before or after the Wyoming property was transferred?

A: I don't — I don't recall.

Q: Did you do any legal work for your father in connection with his divorce?

A: No.

Q: Have you ever practiced as a matrimonial lawyer?

A: No.

Q: Was the property compensation for anything you did for your father or was it a gift?

A: It was my inheritance. It was a gift.

Q: You said you don't reside in the Wyoming property on a full-time basis. Does anyone use the property when you're not there?

A: Yes. It's rented out.

Q: Who manages the rental — who manages the rent?

A: My brother. My brother has a company called Outpost, Inc. and that company manages the property.

Q: Do you have any ownership interest in Outpost, Inc.?

A: No.^[FN83]

. . .

Q: Ma'am, when did your brother acquire the deed to the property?

A: I think it was in 2014.^[FN84]

. . .

Q: And did you receive proceeds from the apartment in 2014?

A: I believe — I believe so.

Q: And at the time you received those proceeds, did you have title to the apartment?

A: No, I did not.^[FN85]

Plaintiff further testified that Outpost, Inc. handles all rentals and repairs in exchange for a management fee and she receives the balance. She stated she is not involved in renting the property and that she has not been involved in any repairs or renovations to the property. Plaintiff testified the rental income is deposited in an account with Outpost, Inc. and that she has not paid anything toward the upkeep or maintenance of the apartment since its acquisition. When [*12]Plaintiff receives money from Outpost, the money is deposited to an account in Plaintiff's sole name at Chase bank.

Plaintiff testified that Defendant did not contribute funds to the acquisition of the apartment, nor has he paid any funds toward its upkeep, maintenance, taxes, improvements or repairs.

While arguing that the Wyoming property is martial, Defendant admitted that it was a gift from Plaintiff's father, acknowledged that he was never on the deed,^[FN86] and that no money was exchanged for the apartment.^[FN87] Defendant testified that the assertion in his Statement of Net Worth that the property was a gift was accurate.^[FN88] He admitted there is no documentary evidence suggesting that the apartment was a gift to him.^[FN89] Defendant admitted that Outpost, Inc. managed the apartment,^[FN90] that he was not a party to the Outpost, Inc. contract and did not receive any rental income.^[FN91] Defendant testified that in 2014, Plaintiff told him she was to receive the apartment " . . . because . . . like, one apartment was for her stepmother. She told me that she thinks that other apartments are in the name of other siblings, so why not her?"^[FN92] He further testified as follows:

Q: Do you have any idea why the property was transferred from the brother to M. J.?

A: My idea— what — what she — what M. J. told me is because she helped her father on the divorce, he will give her — not only one apartment; two apartments. And so, when — in 2016, when she gets that apartment was (sic) always unhappy, she was always asking him for another apartment.

I don't know if he give her something else, but I know that in 2016, when that deed went from her brother — it was on the recommendation of her father to give the deed to her, based on the compensation of the work that she helped him (sic) during the divorce with his wife.^[FN93]

. . .

Q: During the course of discovery in this action, have you produced any document that provides — that suggests that the apartment was compensation for services?

A: No.

Q: Now, the first time you wrote the statement of net worth, you didn't include the [*13]allegation that it was compensation for [M.]'s work to help her father in his divorce. Is that included?

A: It was not.

Q: What was your lawyer — I'm sorry. Your father-in-law, was he divorced in the United States or a different country?

A: In Morocco.

Q: Your wife, is she a practicing lawyer in Morocco?

A: No.

Q: Has she ever practiced law in Morocco?

A: No.^[FN94]

. . .

Q: Now, earlier today, when I asked about the apartment, did you say it was a gift to you and the children?

A: To the family, yes.

Q: But you included yourself and the children?

A: Yes.^[FN95]

. . .

Q: Now, sir, this is the original management agreement with Outpost from October 1, 2014.

A: Correct.

Q: And your wife started receiving money from Outpost before the deed was even transferred?

A: That's something that I didn't know about until this trial.^[FN96]

Marrakesh, Morocco Property

The Defendant testified he acquired land in Morocco in 2011 but did not sign a contract or pay money for the property until 2017. The parties' Statements of Proposed Disposition (hereafter "SPD") posit contradictory views of the marital versus separate nature of the property. Plaintiff's SPD ^[FN97] lists the residence as marital property. Defendant's SPD ^[FN98] lists the residence as his separate property. Similarly, the parties' SNWs are contradictory. Plaintiff's Updated SNW for trial ^[FN99] lists the title owner of the residence as "joint" and the source of funds to acquire the [*14]residence as "joint." Defendant's SNW as of March 13, 2023 ^[FN100] lists Defendant as the title owner and the source of funds to acquire the residence as "employment"; Defendant's Updated SNW for trial ^[FN101] lists the source of funds to acquire the residence as "inheritance from father."

When asked on direct examination if Defendant owned real property in Morocco, Plaintiff answered "Yes. He owns a house in Marrakesh."^[FN102] She then stated she believed that both parties owned the Marrakesh property and that her name was on the title, which was one of the reasons she put Defendant's name on the title to the marital residence.^[FN103] Plaintiff testified the parties had "mostly separate finances" during the marriage. Plaintiff testified that she gave Defendant money to purchase the Marrakesh home, stating "I don't have a copy of that check, but I gave him a check for $36,000 in 2012 or 2013 . . . "^[FN104]

When shown his March 13, 2023 SNW by Plaintiff's counsel at trial, Defendant testified that when he filled it out he forgot to list the inheritance from his father regarding the Marrakesh house and the money he took from his sister to purchase the home. He stated " . . . instead of saying inheritance, I said marital or employment, I guess."^[FN105] He stated that his father passed way in 1983, when the Defendant was 8 years old. When asked when he received his inheritance, the Defendant testified "So, my inheritance was whenever I wanted to have. Like to — if I ask them — I didn't ask them for the house I would have it ten years from now. He further stated:

Q: Now, the inheritance you received — you claim you received, you received it in cash?

A: It was my sister and her husband. As I said, they had the development [of land in Morocco]. So, they — a share — it was a piece of the land. So, that was the — its' almost like this or that. So, in order to get the house in my name, they put the money into the whole development so I became an owner into the property.

Q: Now sir, when I asked you at your deposition about this inheritance and I said where was the money held? You responded it was given in small pieces to the notary who was in charge of the whole project. Do you recall that?

A: Correct.

Q: And so, you said it was given in small increments to the notary by your sister?

A: yes.

Q: And I asked how it was given and you said in cash; yes?

A: Yes.

Q: And I asked do you have any records that show where the cash came from? Your answer was no; right?

A: Yes.^[FN106]

. . .

Q: And so, this house — this home in Morocco was purchased in cash?

A: I was in cash given to the notary to — this is a part of — it's land with multiple houses. So, my part — my sister were [sic] given not only the small portions to the notary on my behalf but also on her behalf to finish paying for the whole land.

So, as I said, my part of getting the house in Morocco, it was in contribution of my money as my inheritance. So, I have no idea how — why this is in cash. I have no idea if they have an agreement between them to do it in cash to lower fees, but for me, the most important thig is at the end I have an agreement that say my name is owning the house.

Q: Now, the deed that we're talking about, it was taken in your sole name?

A: Yes.^[FN107]

The parties agree that the following accounts are marital property:

a) Fidelity Cash Management Account *6448, titled in Defendant's name with a date of commencement (hereafter "DOC") value of $134,999.42

b) Fidelity Investment Account *9398, titled in Defendant's name with a DOC value of $425,071.00

c) Chase Checking Account *6850, titled in Defendant's name with a DOC value of $54,288.47

d) Chase Savings Account *9581, titled in Defendant's name with a DOC value of $250.82

e) Chase Checking Account *6970, titled in Plaintiff's name with a DOC value of $4,000.00

f) Chase Savings Account *7035, titled in Plaintiff's name with a DOC value of $2,800.00

g) TD Bank Checking Account (Joint) *1405, titled in Plaintiff's and Defendant's names with a DOC value of $14,957

h) TD Bank Checking Account *5901, titled in Plaintiff's name with a DOC value of $14,095.00

The parties agree that the following account(s) are the Plaintiff's separate property:

a) TD Savings Account *6642, titled in Plaintiff's name with a DOC value of $20,000;

b) Chase Checking Account *5067 titled in Plaintiff's name with a DOC value of $14,579;

Plaintiff claims the following accounts are her separate property:

a) TD Savings Account *9303, titled in Plaintiff's name with a DOC value of $258,995; Plaintiff testified the source of funds in this account were the proceeds from the sale of [*15]her pre-marital apartment in New York City

b) Chase Savings Account *2579, titled in Plaintiff's name with a DOC value of $243,038.00; Plaintiff testified the source of the funds for this account was a transfer of funds from her TD Savings Account *9303

c) TD Business Account *2164 titled in Plaintiff's name with a DOC value of $17,519; Plaintiff testified the source of funds is Plaintiff's business income

Children's Accounts:

a) TD Savings Account *0062, *0357 titled in Plaintiff's name with DOC value of $20,702.69 each; the parties stipulated to transfer these accounts to 529 educational accounts.

Disputed TD Bank Account *9303

The Defendant disputes that the TD Bank Account *9303 is Plaintiff's separate property. Plaintiff testified she opened the account in her name on July 21, 2014.^[FN108] She testified that the opening balance on July 21, 2014, was zero, and that she deposited $208,653.53, which represented separate funds from her father.^[FN109] Defendant does not dispute that the opening deposit of $208,653.53 was Plaintiff's separate property.

Plaintiff testified that on March 7, 2017, she deposited the sum of $580,000, which consisted of the proceeds of sale of a pre-marital apartment.^[FN110] Counsel stipulated that the proceeds were Plaintiff's separate property as of the date of deposit.^[FN111] When Plaintiff made the deposit, she testified that there was $69,404.42 in the account, which she asserts is her separate property, but could not specifically recall where the funds originated.^[FN112] Plaintiff testified that on August 16, 2017, she deposited a check from her father in the amount of $50,000,^[FN113] which is also her separate property.

Between January 2017, and the DOC, Plaintiff commingled $12,598 in marital funds with the funds in this account. Defendant argues that these deposits transmuted the entire account to marital property. Conversely, Plaintiff agrees that while Defendant is entitled to one-half of the marital $12,598, the remainder of the account remains her separate property because she can trace the funds to their source.

Disputed Chase Bank Savings Account *2579

Plaintiff testified that Chase Bank Savings Account *2579 is in her sole name and had an opening balance of zero on March 14, 2022. On April 18, 2022, Plaintiff withdrew $252,000 [*16]from the TD Bank Account *9303 ^[FN114] and deposited $250,000 of that sum in Chase Bank account *2579. She testified that she put the remaining $2,000 in another Chase account. Plaintiff seeks a determination that this account is her separate property.^[FN115]

Defendant submits that the transfer of $250,000 in funds from Plaintiff's TD Bank Account *9303 (which contains $12,598 of marital funds) to Chase Bank Account *2579, rendered the Chase Account marital. Plaintiff disagrees. She argues that all but $12,598 in her TD Bank Account *9303 can be traced to separate funds. As such, Plaintiff contends that Defendant should be awarded a credit for half of the $12,598 in marital funds, and that the balance of the TD Bank Account *9303 remain her separate property. She submits that her transfer of $250,000 in separate funds from her TD Bank Account to Chase Bank Account *2579 does not change the separate character of the Chase Bank Account.

Disputed TD Business Bank Account *2164

Plaintiff testified she opened TD Business Account *2164 during the marriage in the name of The Law Firm of M. J. She testified that she deposited earnings from her law firm in the account, as well as income from a salary she received from F. When Plaintiff was notified by her accountant that she shouldn't deposit her F. income in her law firm's account, she began depositing her salary in the marital TD Bank checking account *5901. Defendant submits that this account was co-mingled with marital funds and is therefore a marital account.

Retirement Assets

The Plaintiff has the following retirement accounts:

1) TD Private High Yield IRA account *7531 with an approximate DOC value of $6,392;^[FN116]

2) IRA account *1654 with a value of $1,649 as of 12/31/22;^[FN117]

3) Principal Roth IRA account *1565 with a value of $1,251.99 as of 12/31/22;^[FN118]

The Defendant has the following retirement accounts:

1) IRA RBC account *9817, with a DOC value of $0;

2) IRA RBC account *9922, with an approximate value of $418,724.29 as of 12/31/22;

3) IRA RBC account *7399, with an approximate value of $51.52 as of 12/31/22;

4) Fidelity 401K with an approximate value of $88,605.54, with Defendant's employer I B.

The parties stipulated at trial to equalize the marital portion of their retirement assets as [*17]of the DOC.^[FN119] The parties agreed that contributions and gains and losses from the date of marriage through the DOC are marital property to be equally divided. Further, it was agreed that contributions and any gains on any contributions after the date of commencement shall remain each party's separate property. Counsel agreed to use Tova QDRO & Retirement Valuators to perform the necessary calculations and prepare any necessary documentation.^[FN120]

Businesses

The Plaintiff had a law practice known as the Law Firm of M. J. Plaintiff's Statement of Proposed Disposition indicates the practice was closed in 2022,^[FN121] with only a few pro bono clients remaining. Plaintiff's TD Business Convenience Plus Account *2164 had a balance of $22,301,74 on March 1, 2023.^[FN122]

The Defendant has a business known as C. Corp. which was incorporated in Delaware on January 24, 2022.^[FN123] The address for the company is the former marital residence, XXXXX, Bronxville, New York. A Memorandum of Understanding ("MOU") between C. Corp. and Euromed University of Fes, Morocco was offered in evidence. The MOU states that "the Parties are desirous and willing to develop cooperative relations and establish a partnership in the fields of research and development relating to cannabis."^[FN124] No valuation of the business was undertaken.

Defendant testified that the business consists of two people, Defendant and a partner, and that "there's no money involved. There's no bank accounts, nothing."^[FN125] Defendant testified he does not have a percentage ownership interest and that "the whole company is an MOU."^[FN126] On cross-examination, Defendant admitted that during his deposition he testified he had a fifty (50%) percent interest in the company.

Defendant has "other businesses in Morocco" for which no evidence was presented.^[FN127]

Art and Jewelry

The parties stipulated that certain items of jewelry and artwork constitute Plaintiff's separate property. Counsel stipulated that of the art and jewelry set forth on Plaintiff's Exhibit 98, the following items are the Plaintiff's separate property: the Rolex watch (Ex. 98 "B"); the [*18]Audemars Royal Oak watch (Ex. 98 "D"); the Chopard Imperiale watch (Ex. 98 "F"); the Hermes Apple Watch (Ex. 98 "K"); the Baume et Mercier Linea watch (Ex. 98 "K" [sic]); the Jaeger-LeCoultre watch (Ex. 98 "Q"); the Cartier Posha watch (Ex. 98 "R"); and the Gwen Knight The White Dress screen print & Jacob Lawrence Douglas screen print (Ex. 98 "W"). Plaintiff testified that the remainder of the jewelry and artwork delineated on Exhibit 98 is her separate property because the items were gifted to her during the marriage.^[FN128]

While Defendant refused to admit Plaintiff's separate property claims except for those stipulated to be Plaintiff's separate property at trial,^[FN129] he failed to present evidence that the items in dispute were gifted to him. Defendant does not claim that Plaintiff's jewelry and art were purchased during the marriage and does not dispute that Plaintiff received substantial jewelry from her father ^[FN130] and family friends. Instead, Defendant testified that he was unsure which items were received by Plaintiff as gifts, because he was not present when the items were given, and that he has no idea which pieces were given to Plaintiff by her father.^[FN131] Defendant also testified that the gifts of jewelry and art were gifts to the couple, even while admitting they came from Plaintiff's father. Defendant did not identify any jewelry or artwork on his statements of net worth.^[FN132]

Plaintiff admitted that her Diamantissimo earrings are marital (item 7.17).^[FN133]

Defendant testified that the parties purchased only a single piece of art during the marriage and that everything else was gifted.^[FN134] Defendant seeks to have the artwork and jewelry in dispute appraised and sold, with the proceeds divided equally between the parties. Plaintiff seeks an order finding the disputed jewelry and art to be her separate property and awarding the items to her.^[FN135]

Vehicles

The parties own two vehicles, (i) a 2018 Audi Q7 titled in the name of Plaintiff and purchased in November 2021 with marital funds. No value for the vehicle was provided, and (ii) a 2015 Subaru Outback titled in the name of Plaintiff and acquired in 2022. Plaintiff's Updated Statement of Net Worth of November 13, 2023, states the vehicle was a gift from her mother; no value was provided. Defendant's Updated Statement of Net Worth dated November 6, 2023, does not indicate that the Subaru was a gift and states that the original price was $42,000; no source of funds was provided.

Miscellany

Defendant purchased a "machine" for $42,000 during the marriage for his business, C. Corp.,^[FN136] which has never been opened or used.^[FN137]

The trial testimony established that Defendant sent money to Morocco during the marriage and purchased an expensive machine for his business, C. Corp., which was never used and remains in the original packaging. Plaintiff's counsel argues that Defendant's testimony regarding his finances was incredible and suggests that he hid or dissipated substantial sums. With respect to the Plaintiff's argument that Defendant's expenditures constituted marital waste, there is no evidence in the record that Plaintiff objected to the transfers of money to Morocco or that the expenditures were for any inappropriate, non-marital purpose.

With respect to alleged violations of the automatic orders, this Court stated at trial that both parties violated the automatic orders in making post-commencement transfers of property.^[FN138] Neither party sought to hold the other in contempt because of the violations.

Plaintiff's 2022 adjusted gross income pursuant to her Federal Income Tax Return was $229,270.^[FN139] This sum includes Plaintiff's rental income from the Wyoming apartment.^[FN140] Plaintiff admitted at trial that there were multiple transactions between she and her father including (i) a check from the parties' joint account to her father in the sum of $50,000 on March 22, 2017 which she testified he "probably paid her right back,"^[FN141] (ii) a check for $130,000 from Plaintiff's father which she deposited into her business account *2164 to start her own law firm, (iii) $1,161,262 for the purchase of the marital home,^[FN142] and (iv) regular gifts of jewelry.^[FN143] Defendant's adjusted gross income pursuant to his 2022 Federal Income Tax Return was $480,015.^[FN144]

Defendant testified at trial that he received a bonus for 2022 of $140,000, which was paid on March 15, 2023.^[FN145] Defendant stated that the bonus income is not includable in his 2022 income because his contract provides that he had to be employed with the company on March 15, 2023 to receive payment.^[FN146] Defendant testified he received his 2022 net bonus payment of approximately $90,000 in March 2023.^[FN147]

1. Order of Protection. Plaintiff contends the Court should issue an Order of Protection based upon the Defendant's Family Offense. She argues that the trial testimony established the Defendant's history of threats, verbal abuse, condescension and gaslighting culminating in a physical assault. Plaintiff testified that following a verbal altercation in the kitchen she went upstairs to her office to calm herself. The Defendant barged in, grabbed her wrists, yanked her hair, and raised his fist to strike, only ending the assault when the parties' son MM entered the room.

Plaintiff argues that the school psychologist, S.P., confirmed that MM witnessed the Defendant hurting the Plaintiff and that MM feared future assaults. Further, she [*19]submits that Officer John Blume confirmed the violence when he testified that it was "not unusual" to report domestic violence the following day, that he contacted the LAP line believing the Plaintiff was scared, referred the Plaintiff to Family Court, and that the Defendant admitted he grabbed Plaintiff's wrists. Officer Blume confirmed that a child witnessed part of the physical altercation.

Plaintiff argues that Defendant's testimony establishes that a family offense occurred because he admitted that Plaintiff removed herself from the verbal altercation in the kitchen and Defendant followed her. Defendant admitted Plaintiff was "very, very upset." Plaintiff submits that Defendant's assertion he grabbed Plaintiff's wrists to calm her down is belied by his admission that she immediately started screaming "stop, stop, stop, stop" and he did not let go.

Additionally, the parties offered competing versions of the May 2021 milk incident where Plaintiff testified that Defendant threw a full half gallon of milk at her while enraged that she could not cook breakfast. While Defendant does not dispute the incident entirely, he testified that he opened the refrigerator, and a container of orange juice simply fell out.

Plaintiff argues that the Defendant's testimony, exclusive of other witnesses, satisfies the elements of several crimes in the Family Court Act (hereafter "FCA") §821. At a minimum, she submits that his conduct in following her and grabbing her meets the elements of menacing in the third degree and warrants the issuance of an OP.

2. Custody. Plaintiff submits she should be granted sole custody of the children subject to the Defendant's access on alternate weekends (Fridays through Sunday nights at 7 pm) and overnight on alternate Thursdays after school or camp. She argues she should have access on Christmas Eve/Day and Easter Sunday every year and the Defendant should have access for the two Eids. Plaintiff suggests the parties alternate Thanksgiving, February Break, and the balance of Christmas and Easter vacation. The parties should each be given time for summer vacations. Other holidays should be alternated or divided. Plaintiff argues that the Defendant's testimony supports this conclusion. He testified that Plaintiff was the primary caregiver for the children for most of their lives.

Plaintiff argues that joint custody is inappropriate because the parties disagree on religious training, discipline, the need for occupational therapy, tutoring, and psychotherapy. Further she states that joint custody is unworkable here because of the Defendant's history of bullying and manipulating her. Plaintiff cites to the testimony of K. O. that Defendant was "dismissive" toward the Plaintiff in front of the children and that the Defendant is "really good at manipulating things." K. O. stated "he was just cruel. Unnecessarily picking and breaking down [Plaintiff's] physical appearance, emotional appearance, making her feel discarded. Like, just the things that he would say and how he would just look at her with so much distaste. It just made anybody who was around uncomfortable."

3. Equitable Distribution. Plaintiff refers the Court to charts prepared by counsel identifying marital assets and tracing and identifying separate property. With respect to the marital brokerage account in the Defendant's name, Plaintiff argues the Court should either award her one half of the balance in cash or direct the Defendant to transfer to the Plaintiff one-half of the account in-kind to account for gains and losses, plus one-half of the funds Defendant withdrew from the account post-commencement of the action.

a. Wyoming Apartment. Plaintiff argues that she should retain the Wyoming property as her separate property. She cites to the parties' stipulation that "[Plaintiff] is the sole title owner to property at XXXXX, Teton Village, WY. She said the property was transferred to [*20]her from her brother, M. Y. J. by Warranty Deed dated May 4, 2016." Plaintiff states the Husband admitted that the Wyoming property was gift, that he is not listed on the deed, and that no money was exchanged for the apartment. Defendant affirmed that his NWS assertion that the property was a gift is accurate and admitted there is no documentary evidence suggesting the property was gifted to him.

b. Marital Residence. Plaintiff argues she should receive a $1.3 million-dollar separate property credit for the marital residence located at XXXXX, Bronxville, NY 10708, reflecting her separate property contribution. Defendant stipulated that the $1.3 million dollar purchase price came from the Plaintiff's separate property. Plaintiff proposes to retain the residence in exchange for the Defendant retaining the Morocco property, his business, C. Corp., the machinery purchased for the business, and the Plaintiff's share of the assets Defendant dissipated during the marriage.

c. Plaintiff's Separate Property Bank Accounts. Plaintiff argues that TD Bank Account *9303 opened on July 21, 2014, is her separate property. She submits that the inclusion of $12,598 of marital funds in the account does not defeat her separate property claim because she can trace her separate property. Plaintiff agrees that Defendant is entitled to one-half of the $12,598 of marital deposits. On April 18, 2022, Plaintiff transferred $250,000 to a newly opened Chase account *2579, which had a zero balance before the transfer. Plaintiff submits that these funds remain her separate property and that other than the $12,598 of marital deposits in TD Bank Account *9303, the remaining funds in the account are her separate property.

d. Jewelry and Art. Plaintiff argues that her jewelry and art was gifted to her before and during the marriage and is her separate property. She submits Defendant failed to present evidence that the jewelry or art were gifts to him and does not claim that the property was purchased during the marriage. Defendant admits Plaintiff received substantial jewelry and art from her father and the Plaintiff's family friends but cannot verify the items because he was not present at the time of the exchange. Defendant does not list any jewelry or art on his NWS. Plaintiff argues that even in the absence of a separate property finding, the Court should use its equitable powers to award her the jewelry and art.

4. Foreign Property, Dissipation and Automatic Orders. Plaintiff argues that Defendant sent substantial sums of money to Morocco throughout the marriage, purchased a machine for his business which never was used or opened, failed to provide discovery relating to C. Corp. and other companies, and refused to identify marital bonus money for 2022. Also, Plaintiff states Defendant violated the automatic orders by withdrawing funds from marital accounts.

5. Child Support. Plaintiff argues that Defendant's total compensation is $690,000, citing Ex. 52 at p. 122. She states he acknowledges receiving meals during his regular travel thereby reducing his personal expenses.^[FN148] Plaintiff argues Defendant has a history of earning more than $900,000 per year as recently as 2021.^[FN149] Based on Defendant's income and the children's lifestyle, Plaintiff asks the Court to direct him to pay $8,500 per month in child support and 70% of add-ons, retroactive to the commencement of the action. She asks that he be ordered to maintain life insurance to insure his obligation and that he be directed to pay his outstanding [*21]share of pendente lite tutoring, OT and therapy in the sum of $9,950 ($1,350 for OT; $3,300 for tutoring; $5,300 for therapy).

6. Legal Fees. Plaintiff argues the Court should direct the Defendant to pay $350,000 in legal fees. The parties stipulated legal fees would be determined on the papers. The Wife's retainer agreement, Ex 54, counsel fee invoices, Ex 55, and the Wife's SNW are all in evidence. Updated invoices are attached as Ex 55 A. The Wife incurred fees of $390,334.99 as of March 5, 2024, less a $10,000 courtesy credit, and exclusive of the time from March 5, 2024, through the filing of post-trial submissions.

Plaintiff's attorney's affirmation states that the Firm of Most and Schneid PC practices matrimonial and family law. Carol W. Most has practiced Family and matrimonial law for more than thirty years. She is a member of numerous Bar Associations, including the Westchester, Nassau and New York State Bar Associations, and the Woman's Bar of the State of New York, where she has previously served as co-chair of the Matrimonial Committee statewide and has served as co-chair for the Westchester Matrimonial Committee. Adam Schneid was chosen to Super Lawyers from 2018 through 2023 and as a Super Lawyers Rising Star from 2014 through 2017. He commenced his practice at Proskauer Rose LLP, joining the predecessor to Most and Schneid, P.C. in 2011 and focusing exclusively on family and matrimonial law for more than a decade. Both counsels have been rated as Super Lawyers for several years. Christine Paska, Esq, was an associate who worked on the matter primarily with the Order of Protection and discovery. Ms. Paska formerly prosecuted minors in family court in New York City before becoming ADA in Westchester County and then joining Most and Schneid until she departed to become a prosecutor.

Plaintiff argues the Defendant is the monied spouse earning hundreds of thousands of dollars more than she. DRL section 237 imposes a presumption that the monied spouse shall pay legal fees to the less monied spouse. The Defendant is the monied spouse.

Four motions were made. Both of Plaintiff's motions were granted and both of Defendant's motions were denied. Prior to trial Plaintiff served two notices to admit, Exs. 101 and 102. Plaintiff submits that the Defendant's refusal to concede the admissions contained therein required unnecessary trial time.

Plaintiff contends the Defendant took positions which prolonged the trial including, inter alia, his refusal to admit the Wyoming Property is Plaintiff's separate property while admitting that it was transferred to the Plaintiff without consideration, and his admission at trial that the source of funds to purchase the Marital Residence is separate property, yet refusing to acknowledge the Plaintiff is entitled to a separate property credit. The Defendant refused to settle custody unless the Plaintiff withdrew her family offense petition. At trial, the Defendant spent countless hours exploring the Plaintiff's mental health despite admitting he did not have concerns regarding her care of the children.

Plaintiff submits the Defendant was often dishonest. The Defendant claimed he did not know how his children were receiving OT and therapy only to admit he received messages on OFW notifying him of same. The Defendant claimed the Plaintiff is Muslim only to be shown his April affidavit wherein he admitted the Plaintiff is Christian. The Defendant first claimed the Wyoming property was a gift only to change his testimony mid-trial claiming it was compensation for the Plaintiff assisting her father in his divorce despite his admission that all of the Plaintiff's siblings were being given apartments by the Plaintiff's father. The Defendant claimed he grabbed the Plaintiff's wrists in self-defense during the February 1, 2023 incident [*22]because she was attacking him only to later admit that he did not believe she was doing so.

Plaintiff alleges the Defendant refused to settle the case piecemeal. He refused to resolve custody unless she withdrew her application for a family offense seeking to leverage the fear of legal fees against her fear of him. The Defendant has the benefit of steady income growth whereas the Plaintiff was never the primary wage earner. Accordingly, Plaintiff submits the Defendant should pay the majority of the fees incurred.

1. Credibility. Defendant argues that Plaintiff's credibility was an issue throughout the trial. He submits that some of her testimony was demonstrably false, as established on cross-examination. Where her testimony could not be easily disproven, he submits her prior inconsistent statements, and contrived narratives must lead the Court to the conclusion that Plaintiff tailored her testimony "to an expertly crafted narrative."

2. Custody. Defendant argues that the Court must carefully consider Plaintiff's bi-polar disorder diagnosis when determining custody and consider ordering counseling and treatment as a component of a custody or visitation order. Defendant submits that Plaintiff should be ordered to continue with her mental health treatment and in the event she ceases treatment, the Defendant should be notified so that he can protect the children. Defendant reiterates that Plaintiff was psychiatrically hospitalized.

Defendant argues that if Plaintiff continues therapy and medication, joint legal and physical custody are appropriate. He states the parties have shown that they can get along for the best interests of the children and are capable of a joint custody arrangement. Defendant seeks equal custody to ensure he is no longer marginalized by Plaintiff. He further emphasizes that joint custody is important because Plaintiff is unable to foster a relationship between him and the children, as evidenced by her audio recordings of Defendant's interactions with the children since they were babies.

3. Order of Protection/Family Offense. Defendant argues that Plaintiff failed to prove a continuing Order of Protection is warranted, as she did not meet her burden of establishing that a family offense occurred on February 1, 2023. Defendant submits Plaintiff's application for a permanent Order of Protection should be denied as the events underlying the application occurred more than a year ago and there have been no further incidents. Despite Plaintiff's claimed fear that Defendant will kill her, Defendant argues there is no immediate and ongoing danger to Plaintiff. Defendant further submits that Plaintiff failed to prove he formed the requisite intent "to harass, annoy, threaten or alarm" her when they fought on February 1, 2023.

4. Equitable Distribution.

a. Marital Residence. Defendant argues the marital residence was transmuted into marital property when Plaintiff placed the property in joint names and that Plaintiff is not entitled to a return of her separate property contribution of the purchase price of the home. He submits the Court can and should refuse to award Plaintiff a separate property credit, since the titling of the property in both party's names and use of those funds to buy a home for the family can only have been intended to transform the character of the separate funds into marital property.

b. Wyoming Property. Defendant argues Plaintiff did not establish her burden of proving that the Wyoming property is her separate property. He argues that Plaintiff received the property in exchange for helping her father with a divorce. Defendant submits that the sine qua non of a gift is donative intent which requires a voluntary transfer of property without consideration or compensation. Here, Defendant argues Plaintiff offered no evidence of donative [*23]intent from her father or brother and testified that the property was party of her inheritance.

c. Plaintiff's Bank Accounts. Defendant argues that Plaintiff's initially separate bank accounts were transmuted into marital property because they were commingled with marital property.

d. Jewelry and Art. Defendant argues that the jewelry and art not included in the parties' stipulation is marital and should be appraised and sold with the proceeds divided equally between the parties.

5. Dissipation and Violation of Automatic Orders. Defendant argued that Plaintiff failed to prove dissipation. He submits Plaintiff failed to establish that money taken to Morocco was used for any purpose other than to support the marital apartment there, to visit family. Plaintiff did not prove that any of the funds were taken without her consent. Additionally, the Court found that both parties violated the automatic orders by making post-commencement transfers of funds.

6. Child Support. Defendant seeks to have the Court impute income to Plaintiff for child support purposes. He argues that Plaintiff received regular gifts of money, art and jewelry from her family. Defendant asks that the Court impute $150,000 to Plaintiff bringing her income for child support purposes to $379,270. Defendant submits that his income for child support calculation purposes is $480,015, pursuant to his 2022 income tax return. Defendant seeks to modify the current allocation for add-on expenses to reflect these figures.

Defendant submitted a child support calculation chart using the above figures. Defendant deducted $17,045.24 for social security and Medicare taxes from Plaintiff's income and $19,412.75 from his income. Plaintiff's adjusted CSSA income is $362,224.76 and Defendant's adjusted CSSA income is $460,602.25.

Defendant then calculated income up to the statutory cap of $183,000, using the applicable 25% child support percentage for two children, yielding an annual child support obligation payable by Defendant of $25,609.94, or $2,134.16 per month. Each parent's share of the combined parental income is 44.02% Plaintiff, and 55.98% Defendant. Defendant did not submit proposed child support calculations for income above the statutory cap.^[FN150]

7. Counsel Fees. Defendant argues that Plaintiff caused the lengthy trial of this case by orchestrating a plan to remove him from the marital residence and to marginalize his involvement in the children's lives through false accusations of domestic violence. Defendant submits that Plaintiff's mental illness " . . . played a significant role in her decision to initiate the divorce in this matter and that throughout the pendency of the action she lied to the police, the children's school, and [the] Court to gain an advantage."^[FN151]

Defendant claims Plaintiff's actions caused him to incur counsel fees in excess of $130,000 to prepare for and attend the trial and argues that Plaintiff should be sanctioned for frivolous conduct in the amount of $100,000.

As AFC, Mr. Szczesniak opined only on the issues at trial pertaining to the children, including the credibility of the parties, Plaintiff's request for a final Order of Protection, custody and parental access.

1. Credibility. With respect to testimony regarding parenting and Plaintiff's request for an order of protection, the AFC opined that Plaintiff was "by and large"^[FN152] a credible witness. The AFC noted that Plaintiff answered questions forthrightly and did not appear to be evasive. With respect to Defendant, the AFC opined that he was mostly credible but was inconsistent with respect to his answers on financial aspects of the action. The AFC opined that as a result, the Defendant "presented as slightly less credible"^[FN153] than Plaintiff regarding the alleged domestic violence incident on February 1, 2023.

2. Custody. The AFC opined that joint legal custody is not appropriate here. Citing case law,^[FN154] the AFC states that joint legal custody is a voluntary alternative for relatively amenable and stable parents who act in a mature and civilized fashion. Here, the AFC concludes that joint legal custody is not a voluntary arrangement because custody has been an issue throughout the trial and the parties are not amenable to this option. The AFC states that a joint legal custody arrangement is not appropriate where the parties have demonstrated an inability to cooperate on matters concerning the children.^[FN155] Here, the trial testimony was replete with examples of how the parties are unable to cooperate on matters involving the children. After weighing the statutory factors for custody determinations, the AFC opined that Plaintiff should be awarded sole legal and physical custody of the children and that the Defendant should have as much access and parenting time with the children as possible. Additionally, the AFC opined that Defendant should be entitled to information and records from the children's providers and he should be able to discuss any issues involving the children with such providers. Defendant should be able to attend all meetings (e.g., medical, dental, parent-teacher conferences) and events (e.g., school plays, musical and dance recitals, sporting events, etc.) concerning the children.

3. Order of Protection. The AFC opines that the Court's issuance of a final Order of Protection in favor of Plaintiff would strongly weigh against the appropriateness and viability of the parties having a joint custodial arrangement. The AFC did not opine on whether a final order of protection should issue.

In the verified complaint, Plaintiff alleges an irretrievable breakdown of the marriage for a period of in excess to six months prior to commencement of the action, see DRL § 170(7), as the sole ground for the divorce. In the verified answer, Defendant likewise alleges an irretrievable breakdown of the marriage for a period of at least six months. The parties are not in dispute as to the grounds for divorce and both testified credibly at trial that the marital relationship had broken down irretrievably since at least six months prior to commencement of the action. Accordingly, the Court grants the parties a divorce on the grounds set forth in DRL § [*24]170(7).

Plaintiff seeks a final Order of Protection against Defendant as a result of the incident on February 1, 2023.^[FN156] Plaintiff testified that to escape an argument with Defendant, she went upstairs to her office and Defendant followed her, grabbed her wrists and continued to scream at her. While Plaintiff has been consistent in her description of the event to the extent she has reported multiple times that Defendant followed her, grabbed her wrists and screamed at her, at times she has testified or reported that he also pulled her hair, backed her into a corner and raised his fist as if he was going to strike her. The Defendant denied pulling Plaintiff's hair or raising his fist but admitted following Plaintiff to her office and grabbing her wrists.

Plaintiff reported the incident to the police on February 2, 2023, and obtained a Temporary Order of Protection from Family Court later that day. The Temporary Order of Protection was extended continuously for more than one year from February 2, 2023, until June 21, 2024, when this Court declined to continue it further.^[FN157]

Plaintiff's counsel argues that the incident constitutes a Family Offense pursuant to the Family Court Act warranting the issuance of a final Order of Protection. Plaintiff does not seek other remedies under the Family Court Act or incarceration of Defendant. Plaintiff's counsel submits that at a minimum, Defendant's testimony, exclusive of other witnesses, satisfies the elements of menacing in the third degree.^[FN158]

It is settled law that "in a family offense proceeding, the petitioner has the burden of establishing the offense by a fair preponderance of the evidence (Matter of Davis v Wright, 140 AD3d 753, 754 [2d Dept 2016]; see Family Ct Act § 832; Matter of Buskey v Buskey, 133 AD3d 655 [2d Dept 2015]; Matter of Khan-Soleil v Rashad, 108 AD3d 544 [2d Dept 2013]). The determination of whether a family offense was committed is generally a factual issue to be resolved by the Court (see Matter of Campbell v Campbell, 123 AD3d 1123, 1124 [2d Dept 2014]; Matter of Maiorino v Maiorino, 107 AD3d 717, 717 [2d Dept 2013]; Matter of Jackson v Idlett, 103 AD3d 723, 723 [2d Dept 2013]). The court's determination regarding the credibility of witnesses is entitled to great weight on appeal and will not be disturbed if supported by the record (see Matter of Maiorino, 107 AD3d at 717).

Here, Plaintiff testified, and Defendant admitted that Plaintiff retreated upstairs after a heated exchange in their kitchen on February 1, 2023, and Defendant followed Plaintiff upstairs to her office and grabbed her wrists. While Defendant denies pulling Plaintiff's hair and cocking his fist at her, his acknowledgment that he followed her upstairs and grabbed her wrists [*25]constitutes the offense of menacing in the third degree. Plaintiff credibly testified that Defendant's conduct placed her in fear of physical injury and that she remains fearful of Defendant. Defendant's counsel stipulated to Plaintiff's continued fear of his client at trial.^[FN159]

Upon consideration of the facts and circumstances herein, the Court declines to award Plaintiff a final Order of Protection. As noted, Plaintiff obtained a Temporary Order of Protection from the Family Court on February 2, 2023, which was continued until June 21, 2024. The parties have been living separate and apart since February 2, 2023, and there have been no further instances of domestic violence, including during the period after the lapse in the Temporary Order of Protection on June 21, 2024.^[FN160]

"In any child custody dispute, the court's paramount concern is to determine, under the totality of the circumstances, what is in the best interests of the child" (Matter of Olea v Diaz, 194 AD3d 721, 722 (2d Dept 2021); see Eschbach v Eschbach, 56 NY2d 167, 171 (3d Dept 1982). There is "no prima facie right to custody of the child in either parent" (DRL § 70[a]; DRL § 240 [1][a]). Factors to be considered include, inter alia, "(1) which alternative will best promote stability; (2) the available home environments; (3) the past performance of each parent; (4) each parent's relative fitness, including his or her ability to guide the child, provide for the child's overall well-being, and foster the child's relationship with the noncustodial parent; and (5) the child's desires" (Matter of Montebello v Montebello, 184 AD3d 565, 566 [2d Dept 2020] [internal quotation marks omitted]; see Matter of Olea, 194 AD3d at 722). Importantly, the parent's ability to place the children's needs above his or her own in fostering a continued relationship with the non-custodial parent is an appropriate consideration (Lohmiller v Lohmiller, 140 AD2d 497 [2d Dept 1998]; Janecka v Franklin, 150 AD2d 755, 756 [2d Dept 1989]).

The weight to be afforded to each of the various factors is within the discretion of the trial court and requires an evaluation of testimony, character, and sincerity of all the parties involved (see Bourne v Birstow, 66 AD3d 621 [2d Dept 2009]). Because custody determinations depend primarily upon the trial court's assessment of character and credibility, deference is accorded to the trial court's credibility findings which shall not be disturbed unless they lack a sound and substantial basis in the record (see Matter v Dolan Masterton, 121 AD3d 979, 980 [2d Dept 2014]).

Parental access " . . . is a joint right of the noncustodial parent and of the child" (Matter of Munroe v Smith, 189 AD3d 1595, 1598 [2d Dept 2020] citing Matter of Spampinato v Mazza, 152 AD3d 526, quoting Weiss v Weiss, 52 NY2d 170, 175 [1981]). "Absent extraordinary circumstances where [parental access] would be detrimental to the child's well-being, a noncustodial parent has a right to reasonable [parental access] privileges" (Id., citing Matter of Spampinato v Mazza, 152 AD3d at 526, quoting Matter of Brian M. v Nancy M., 227 AD2d 404, [2d Dept 1996]). When adjudicating parental access rights, the court's first concern is the welfare and interests of the child (see Matter of Zwillman v Kull, 90 AD3d 774, 774 [2d Dept 2011]). The best interests of the child lie in being nurtured and guided by both parents, and in order for [*26]the noncustodial parent to develop a meaningful, nurturing relationship with the child, parental access must be frequent and regular (see id.). As with custody, the Court's credibility findings will be accorded great weight and its determinations regarding parental access will not be disturbed unless they lack a sound and substantial basis in the record (see Matter of Felty v Felty, 108 AD3d 705, 707 [2d Dept 2013]).

Credibility

Both parties offered testimony at trial and were subject to direct and cross-examination by opposing counsel and the AFC. The Court recognizes that both parties are loving parents and able to provide a suitable home environment for the children. Plaintiff presented as calm and thoughtful in her answers and knowledgeable as to each of the children and their respective needs. Her answers were clear and forthright. Plaintiff appeared to answer questions truthfully; she was cooperative on cross-examination.

Defendant presented as genuine and sincere in his desire to share parenting time equally with Plaintiff so long as she remains in treatment for her mental health. The Court, however, observed that at times Defendant was evasive in his responses to questions regarding the parties' finances and that, over the course of the trial, his testimony revealed meaningful inconsistencies. When questioned about the inconsistencies, Defendant would plead ignorance, claim a lack of familiarity with legal requirements or blame English as his second language.

On balance, where there is inconsistency between the parties' testimony, the Court credits that of Plaintiff.

Statutory Factors

As described, the Court may in its discretion consider a variety of factors that bear upon the best interests of the children in a custody determination. Based on the facts and evidence proffered, the following factors ^[FN161] are particularly relevant here:

(i) The mental and emotional stability of the parents. Much trial time was devoted to Plaintiff's mental health issues. Plaintiff admitted to having depression, anxiety and bi-polar disorder.^[FN162] Plaintiff testified she first sought treatment for mental health issues in 2013 ^[FN163] but was not experiencing suicidal ideation.^[FN164] Plaintiff admitted herself to Weill Cornell Hospital for psychiatric treatment in 2020.^[FN165] She testified she sees a psychiatrist and intends to do so in the [*27]future,^[FN166] that she currently takes several medications, that she finds the medications helpful, and that she never elects not to take her medications.^[FN167] Plaintiff testified that her mental health issues do not impact her ability to care for the children.^[FN168]

The trial testimony revealed that Defendant is not significantly concerned about the possible effect of Plaintiff's mental illness on her parenting abilities. He testified that he has no concerns about Plaintiff making day-to-day decisions for the children ^[FN169] and does not think she would ever hurt them.^[FN170] Defendant's testimony regarding his extensive business travel further corroborated his lack of concern that the children could be negatively affected by the Plaintiff's mental health issues. Defendant testified that although he has traveled extensively on business throughout the children's lives ^[FN171] he never was concerned about Plaintiff caring for the children alone overnight, or that she would fail to take her medications.^[FN172] One would assume if Defendant had concerns about the impact of Plaintiff's mental health issues on the children, he would not have left them with Plaintiff for extended periods of time or, at a minimum, he would have put additional safeguards in place to ensure the children's safety in his absence. Because he did not undertake these measures the Court is left to conclude that Plaintiff's ability to manage her illness and care for the children is not an issue for the Defendant.

There was no significant evidence at trial that Defendant suffers from a severe mental illness or emotional disorder that would negatively impact the children.

(ii) Primary caregiver. The parties testified extensively regarding the issue of which parent has been the children's primary caregiver. Plaintiff testified that following the birth of the twins she stopped working at her law practice in order to care for them.^[FN173] She testified she selected the pediatrician,^[FN174] scheduled and took the children to their medical appointments,^[FN175] purchased a majority of the children's clothing,^[FN176] provided dinner for the children most of the [*28]time,^[FN177] handled most of the homework duties for the children,^[FN178] and got the children ready for bed with some assistance from Defendant during the children's first year.^[FN179]

The Defendant's testimony confirmed that Plaintiff filled the role of primary caregiver for a majority of the children's lives.^[FN180] He also admitted that the Plaintiff assumed responsibility for the physical and emotional needs of the children.^[FN181] Defendant testified Plaintiff is "a good mom."^[FN182]

(iii) The role of domestic violence. Plaintiff testified to years of disparagement by Defendant in front of the children. In addition, she described an incident on February 1, 2023, in which she testified, and Defendant admitted, that Defendant followed the Plaintiff upstairs to her office during an argument, screamed at her, grabbed Plaintiff's wrists and refused to let go even when she screamed for him to do so. Defendant confirmed at trial that one of the children witnessed this altercation with Plaintiff. S.P. confirmed that the children were fearful of the Defendant's return to the marital residence. K. O. testified that the Defendant is "dismissive" toward the Plaintiff in front of the children.

This Court has found, supra, that the February 1, 2023 incident constituted a Family Offense pursuant to the Family Court Act. Accordingly, this factor weighs heavily against an award of shared custody between the parties.

(iv) Ability to provide for the intellectual and emotional needs of the children. Both parties are highly educated and accomplished professionals. Plaintiff has a B.A. degree from Harvard University, an M.A. from Stanford University and a J.D. from the University of Michigan.^[FN183] She is a practicing attorney. The Defendant has a Ph.D. in reproductive medicine and molecular biology.^[FN184] At the time of trial Defendant was employed by I. B. as a Vice President and Head of Global Oncology Partnering.

The parties have fostered the intellectual needs of the children by purchasing a home and enrolling the children in a respected school district. While the parties appear to agree on the education of the children, it is noteworthy that when occupational therapy and tutoring was recommended for the children, the Defendant did not participate in obtaining or paying for such services.

(v) Each parent's demonstrated willingness to prioritize the needs of the children over [*29]his/her own needs. No evidence was adduced at trial that either parent prioritized his/her own needs over those of the children. The testimony established that Plaintiff has provided a stable environment for the children, demonstrated age-appropriate behavior and communication with the children, and regularly participated in their school, extra-curricular, and summer activities. Plaintiff has balanced working full-time from home while also caring for the children and providing financial support. The Defendant traveled frequently during the marriage for business and earned significant income to assist in the support of the family.

(vi) The willingness of each parent to foster a relationship between the children and the other parent. The testimony established that both parents are willing to foster a relationship between the children and the other parent. Plaintiff acknowledged that the children love their father ^[FN185] and stated, "I want the boys to have a healthy, loving relationship" with Defendant and that she would " . . . foster a relationship because [she knows] it's important for the kids to have a loving relationship with their father . . . ".^[FN186] Despite his repeated denigration of Plaintiff during the marriage, Defendant testified that if he were the primary custodian of the children, he would facilitate access between them and Plaintiff. He testified that he " . . . would do everything to keep the relationship between the kids and [Plaintiff]. It's only in the best for me and for the kids, but particularly for the kids."^[FN187]

(vii) The availability of each parent. In evaluating the time each parent is available to care for the children the Court has considered the parties' respective work schedules and responsibilities. In this regard, Plaintiff appears to be more available to the children because she works virtually from home.^[FN188]

To the contrary, Defendant testified he traveled to Boston for work an average of two to three days every other week, and that he undertook business-related travel to Paris, London, Spain and Germany.^[FN189] He admitted that he traveled four days per month in 2022.^[FN190] Defendant testified that he wants to stop traveling, and has changed his job with his employer to reflect that desire. He stated "And then now [sic] I'm changing all my life for my kids. So I'm not going to travel — I don't have any travels anymore."^[FN191] He admitted he made this decision after the commencement of the divorce action.^[FN192] Notwithstanding his job changes, Defendant testified he [*30]traveled on business as recently as the month prior to the start of the trial.^[FN193]

(viii) Stability of each parent. The proffered evidence established that both parties, with limited exceptions, possess the stability necessary to be a custodial parent of the children. Plaintiff is cognizant of her mental health issues and receives appropriate treatment. The Defendant engaged in denigrating behavior of Plaintiff in front of the children and committed at least one act of domestic violence. At present, he appears to possess the stability to parent the children.

Legal and Physical Custody

There is a vast difference in the parties' approach to parenting. The testimony established the parties have an inability to resolve issues. While Defendant testified to his belief that the parties can co-parent, Plaintiff testified that Defendant questions her parenting skills and fails to show respect for her in front of the children.^[FN194] She testified that the Defendant criticizes her and screams at her when she fails to comply with his wishes.^[FN195] She stated that she and Defendant disagree on how to discipline and comfort the children. For example, in dealing with a child's injury, Plaintiff stated she tries to comfort the child. Defendant, by contrast, takes the child from Plaintiff and instructs him to act in a more mature fashion.^[FN196] Plaintiff testified that the parties' relationship makes it impossible for them to attend the children's extracurricular activities or school conferences together. She opined it would be "very hard" to engage in joint decision making with the Defendant because he bullies and manipulates her and demands to get his way.^[FN197]

The evidence revealed that the parties are unable to communicate concerning the children. While Plaintiff testified that the parties cannot communicate, Defendant testified to the opposite and minimized the need for such communication by saying that he and Plaintiff agree on certain issues.

The Defendant's lack of involvement with YM's occupational therapy ("OT") and tutoring is illustrative of the parties' parenting roles. On the stand, Defendant feigned ignorance of the need for YM to receive services despite eventually admitting he was notified. Plaintiff testified that YM's teacher (Ms. M.) recommended a reading tutor in December 2022 or January 2023 and that she discussed hiring YM's first grade teacher, Ms. V., with Defendant. Plaintiff testified that Defendant met Ms. V. in the marital residence prior to the commencement of the action.^[FN198] At trial, Defendant testified he did not know that Ms. V. was YM's tutor, confusing her with the OT provider. He stated that the parties "never agreed on — she [*31]selected Ms. [V.] to do OT and I was not consulted."^[FN199] He also testified that "up to yesterday, I didn't know whose [sic] of my kids are getting tutoring,"^[FN200] claiming he first learned about the tutoring from the Plaintiff's trial testimony.^[FN201] Nevertheless, the evidence demonstrated that Plaintiff messaged Defendant on April 9, 2023 stating "[YM] has tutoring on Tuesdays. I can try to figure out something with Ms. [V.]"^[FN202] On May 23, 2023, the Plaintiff wrote to the Defendant "[t]omorrow [YM] has tutoring though Ms. [V.] has not yet told me what time she is coming."^[FN203] Defendant admitted he never responded to Plaintiff's messages and never asked why the tutoring was necessary. He similarly admitted that despite having Ms. V.'s email address, he did not contact her directly.^[FN204] When asked about the April 9, 2023 message, Defendant testified that he confused tutoring and OT and that he "didn't know that [YM or MM] needs any tutoring because I never had any communications from the school telling me that they both or any of them needed tutoring."^[FN205]

The Defendant took a similar approach with respect to YM's need for OT. Plaintiff sent Defendant multiple messages on OFW relating to OT.^[FN206] The Defendant acknowledged that he received invoices for OT but did not reimburse Plaintiff with respect to same.^[FN207] Despite the messages through OFW and invoices relating to YM's OT, when Defendant was asked "As you sit here today, do you know whether or not [YM] ever received occupational therapy?" he answered, "I don't know."^[FN208] Defendant admitted he failed to contribute any money toward the cost of OT or tutoring.

It is the Court's view that the Defendant demonstrated animosity towards Plaintiff including the act of domestic violence on February 1, 2023, negatively impacts the children and presents a clear impediment to joint custody and/or joint decision making. Accordingly, the Court finds that it is in the best interests of the children that Plaintiff shall have sole legal and physical custody of the children subject to a liberal access schedule for Defendant.

Parental Access

The Court directs that the Defendant shall have access with the children every Tuesday and Thursday from after school/camp pick up (or 8:00 a.m. if no school or camp) through 7:00 p.m., and on every alternate Thursday from after school/camp pick up (or 8:00 a.m. if no school or camp) overnight, with return to school or camp Friday morning. If there is no school or camp that day, Defendant shall return the children to Plaintiff's residence by 9:00 a.m. Additionally, Defendant shall have access with the children on alternating weekends from after school/camp pick up on Friday (or 8:00 a.m. if no school or camp) through Monday at school/camp drop off (or 8:00 a.m. if no school or camp). The parties shall each be entitled to two weeks of non-camp time during the children's summer vacation. The parties shall select their weeks, whether consecutive or separate, and notify the other through OFW or any other similar communication program or application no later than April 15th of each year. The Defendant shall have the first selection of summer access time in odd-numbered years and Plaintiff shall have the first selection in even-numbered years.

The parties shall alternate major holidays each year, with the parties reversing the holiday schedule in each subsequent year. Accordingly, for the year 2025, Defendant shall have access time with the children during the Thanksgiving holiday (Thanksgiving Day at noon through Sunday); Plaintiff shall have access time with the children from Christmas Eve to Christmas Day at noon and Defendant shall have access time from then through New Year's Eve at noon. Defendant shall have both Eids with the children every year. Plaintiff shall have Easter with the children every year. Additionally, the parties shall share the children's school vacations each year by alternating the winter and spring vacations annually. In even numbered years Plaintiff shall have the children's spring vacation and Defendant shall have the winter vacation; in odd numbered years the Plaintiff shall have the children's winter vacation and Defendant shall have the children's spring vacation.

Plaintiff shall have the children on Mother's Day and her birthday, and Defendant shall have the children on Father's Day and his birthday regardless of which parent would otherwise have the children according to the schedule set forth herein. Both parents shall have access to the children on the children's birthday; the parent with physical custody on the birthday shall be afforded the first choice of whether he/she wishes to have the children the morning of the birthday or the evening. If the parties cannot agree to a time for the other to see the children on their birthday, then the children shall be delivered to the other no later than 3:00 p.m. that day and returned no later than 7:00 p.m. The arrangement made for the first birthday that follows this Decision After Trial shall apply to all subsequent birthdays.

Both parties shall be and hereby are afforded unfettered access to the medical, dental, educational, therapeutic and other records pertaining to the children. Each parent shall immediately advise the other in the event a medical need arises, whether routine or emergent. If a child is ill for a period in excess of forty-eight (48) hours, both parents shall have access to the child regardless of which parent then enjoys physical custody. Similarly, in the event a child is hospitalized for any reason, both parents shall have the right to visit with the child at any place where the child might then be confined, subject only to the rules and regulations of the institution where the child is confined, and the best interest of the child as determined by his/her treating physician.

Decision-Making

The Court directs that, following meaningful consultation with Defendant, Plaintiff shall have final decision-making authority as to all major matters including medical, dental, [*32]psychological/psychiatric treatment, religion, education, and extra-curricular activities. Meaningful consultation shall mean that each party shall convey in writing to the other party his/her opinions on whatever matters affecting the children need to be resolved, setting forth the issue that needs to be resolved and that parent's proposed resolution at least three (3) days in advance of such decision being made, except in case of an emergency.

A final decision shall not be made until after consideration of the other parent's position, and a written response to same is made. The parties are urged to consider deferring to a professional in whatever field requires determination. In case of a medical emergency, each parent shall immediately, or as soon as practicable, notify the other. In such cases, the parent who has custody of the child at that time is authorized to make emergent decisions consistent with the recommendations of the then present medical provider.

Extra-Curricular Activities and Summer Camp

The parties are directed to engage in meaningful consultation through OFW or any other similar communication program or application as to extra-curricular activities and summer camp for the children and the parties shall mutually agree upon a financial budget for said activities. The parties shall be responsible for paying for such activities and camp based on their pro rata share of their combined income as set forth in the child support portion of this Decision After Trial. Each parent will be responsible for transportation to and from school and extra-curricular activities and social events during the periods he/she has custody. Each parent will also be responsible for ensuring that homework and other school assignments are completed as assigned. Both parents shall be listed on any registration or enrollment forms for extra-curricular activities and summer camp.

Communications

The parties are directed to use OFW or any other similar communication program or application for any and all communications. Each parent shall notify the other of such events as PTA meetings, parent-teacher conferences, and the like. In the event a child brings home a bulletin or other announcement from, or relating to, their school or extra-curricular activities, each parent shall forward a copy of such item to the other sufficiently in advance of any scheduled event, but in no event later than forty-eight (48) hours after receipt, so that the other may attend or participate in the event or activity. Verbal announcements shall be shared in a similar fashion.

Travel

Prior to discussing any vacation, trip, event, or activity in which the children's participation might affect the other parent's right to contact or visit either or both of the children, the parent seeking to allow the children to participate in such trip shall consult with the other so that the parties may fashion a mutually agreeable resolution designed to minimize the effect of such trip, activity, or event on the other parent. Neither parent is to take the children out of New York State for a period in excess of forty-eight (48) hours without advising the other of his/her intent to do so and without providing a phone number and address for the non-traveling parent to reach the other, if necessary, at least forty-eight (48) hours in advance of such travel. No travel outside the tri-state region (New York, New Jersey, Connecticut) shall take place unless the traveling parent provides the other with a full written itinerary including mode of travel, names of persons traveling, housing or hotel identification, and, if applicable, flight information. International travel for vacations is permitted with at least two (2) weeks' notice and only to a country which is a signatory to the Hague Convention. Plaintiff is to maintain possession of the [*33]children's passports and other important documents (e.g., birth certificates, social security cards) when they are not needed for the children to travel. Defendant shall promptly return the children's passports to Plaintiff after any travel requiring him to have possession.

Fostering Parent/Children Relationships

Neither party is to unreasonably interfere with the children's desires to communicate with the other parent when not in that parent's custody. The children's surname is not to be changed from "J. M." absent the express consent of both parties, application by the child(ren) for such change to a Court of appropriate jurisdiction, or the child's marriage. Neither party shall initiate, encourage, or allow any person other than the parties hereto to be referred to by the children as "Father/Dad/Daddy" or "Mother/Mom/Mommy" (or similar terms). Neither party shall disparage the other party in the presence of the children or allow any third party to do so.

"The Child Support Standards Act 'sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to a particular ceiling'" (Spinner v Spinner, 188 AD3d 748, 751 [2d Dept 2020], quoting Matter of Freeman v Freeman, 71 AD3d 1143, 1144 [2d Dept 2010]); see DRL § 240(1-b)(c). "'Where the combined parental income exceeds that ceiling, the court, in fixing the basic child support obligation on income over the ceiling, has the discretion to apply the factors set forth in Domestic Relations Law § 240(1-b)(f), or to apply the statutory percentages, or to apply both'" (Spinner, 188 AD3d at 751, quoting Candea v Candea, 173 AD3d 663, 664 [2d Dept 2019]); see DRL § 240(1-b)(c)(3). "'The court must articulate an explanation of the basis for its calculation of child support based on parental income in excess of the statutory cap'" (Spinner, 188 AD3d at 751, quoting Candea, 173 AD3d at 665).

For purposes of calculating child support, Plaintiff's income is $279,270. This sum includes her 2022 adjusted gross income of $229,270 and an additional $50,000 imputed to Plaintiff on account of regular gifts and contributions from her family. Defendant's adjusted gross income is $480,015, which includes his bonus from 2021, paid in March of 2022.^[FN209] The parties' combined parental income equals $759,285, see DRL §240(1-b)(c)(1), of which Plaintiff's income comprises 37% and Defendant's income comprises 63%. Multiplying the combined parental income up to the statutory cap of $183,000 by the appropriate child support percentage of 25% for two children yields an annual parental child support obligation of $45,750, of which 37% is to be paid annually by Plaintiff, or $1,410.63 per month, and 63% is to be paid annually by Defendant, or $2,401.88, per month (see DRL § 240[1-b][c][2]).

Next, because the combined parental income exceeds the statutory cap currently set at $183,000, the Court must determine the amount of child support, if any, for the amount of the combined parental income in excess of $183,000. Under the circumstances of this case and upon consideration of the statutory factors set forth in DRL § 240(1-b)(f)(1-10), including, among other things, the financial resources of the parties, the earning potential of the parties, the disparity in the parties' respective incomes, and the standard of living enjoyed by the children [*34]during the marriage, the Court finds it just and appropriate to calculate child support based on combined parental income above the statutory cap up to $450,000 (see Bari v Bari, 200 AD3d 835, 838 [2d Dept 2021]; Sinnott v Sinnott, 194 AD3d at 875; Matter of Levin v Blum, 167 AD3d 609, 611 [2d Dept 2018]).

The combined parental income above the cap is $267,000 ($450,000 less $183,000). Applying the statutory percentage of 25% for two children yields an annual parental child support obligation above the cap of $66,750, of which 37% is to be paid annually by Plaintiff, or $2,058.13 per month, and 63% is to be paid annually by Defendant, or $3,504.38. After adding that amount to Defendant's monthly pro rata share of the child support obligation up to the cap ($2,401.88), Defendant's total child support obligation for the children equals $5,906.26 per month.

Accordingly, commencing on the first day of the first full month after the date of this Decision After Trial, Defendant shall remit payment to Plaintiff of $5,906.26 per month as and for basic child support. This award shall be retroactive to the date of commencement, with Defendant receiving a credit for sums paid. Defendant is further directed to remit payment for his pro rata share of the children's unreimbursed medical expenses (including expenses for psychotherapy), childcare expenses (including summer camp permitting Plaintiff to work), tutoring, occupational therapy and extra-curricular activities. Defendant shall remit to Plaintiff payment of $9,950 for outstanding amounts due and owing for tutoring in the sum of $3,300, OT in the sum of $1,350, and for therapy in the sum of $5,300 for arrears incurred by Plaintiff as of December 7, 2023. Payment shall be made within ten (10) days of Defendant's receipt of invoices showing proof of payment by Plaintiff. If such proof already has been provided, Defendant shall remit payment for the outstanding sums within ten (10) days of service of this Decision After Trial with notice of entry.

Defendant shall maintain a life insurance policy in an amount sufficient to secure the payment of child support (see DRL § 236B(8)(a); Shvalb v Rubinshtein, 204 AD3d 1059 [2d Dept 2022]). If a policy of insurance is not currently in place, or is insufficient to secure his child support payments, Defendant shall provide Plaintiff proof of adequate insurance within forty-five (45) days of the date of service of this Decision After Trial with notice of entry.

The DRL provides that reasonable health care expenses not covered by insurance, the cost of health insurance, and childcare expenses should be allocated "in the same proportion as each parent's income is to the combined parental income" (DRL §240[1-b][c][4, [5][ii]). Here, Defendant shall continue to maintain health insurance for the parties' children until their graduation from college or until Defendant is no longer able to provide dependent coverage for the children under his insurance plan. Plaintiff is directed to pay her 37% pro rata share of the cost of providing health insurance benefits for the children, which shall be deducted from Defendant's basic child support obligation (see id.; Candea, 173 AD3d at 666; Bauman v Bauman, 132 AD3d 791, 793 [2d Dept 2015]). Defendant is directed to pay his 63% pro rata share of the children's future unreimbursed health related expenses (see Strohli v Strohli, 174 AD3d 938, 943 [2d Dept 2019]).

"Expenses for extracurricular activities are not specifically delineated as an 'add on' under the Child Support Standards Act" (Tuchman v Tuchman, 201 AD3d 986, 992-993 [2d Dept 2022]). Nevertheless, given the parties' resources and standard of living, they shall be responsible for paying for such activities and camp based on their pro rata share of the combined income. To the extent the parties are unable to agree on a budget and/or activities, [*35]Plaintiff shall have final decision-making authority as to all major matters, including but not limited to, extra-curricular activities.

Given the age of the parties' children (the twins are nine (9) years old), it is premature at this juncture to include a directive regarding the payment of college expenses (see Spinner, 188 AD3d at 752).

Neither party requested the Court to address the tax deductions to which they may be entitled for the children. Nevertheless, to avoid further motion practice in the event they cannot agree, the parties are directed to share any child tax credit/deduction available by alternating the deduction each year. Plaintiff shall take the deduction in even numbered years (i.e., tax year 2024) and Defendant shall be entitled to take the deduction in odd numbered years so long. as he is current on his child support obligations on the first day of the year for which the deduction is to be declared.

Equitable distribution of marital property does not necessarily mean equal distribution (see Santamaria v Santamaria, 177 AD3d 802, 804 [2d Dept 2019]; Culen v Culen, 157 AD3d 926, 929 [2d Dept 2018]). "'Domestic Relations Law § 236 mandates that the equitable distribution of marital assets be based on the circumstances of the case and directs the courts to consider a number of statutory factors'" (Fairchild v Fairchild, 149 AD3d 710, 710—711 [2d Dept 2017], quoting Fields v Fields, 15 NY3d 158, 170 [2010]). "Those factors include: the income and property of each party at the time of marriage and at the time of commencement of the divorce action; the duration of the marriage; the age and health of the parties; the loss of inheritance and pension rights; any award of maintenance; any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of marital property by the party not having title; and any other factor which the court shall expressly find to be just and proper" (Taylor v Taylor, 140 AD3d 944, 945—946 [2d Dept 2016]; see DRL § 236B[5][d]). "'While equitable distribution does not necessarily mean equal distribution, when both spouses have made significant contributions to a marriage of long duration, the division of marital property should be as equal as possible'" (Kamm v Kamm, 182 AD3d 590, 591 [2d Dept 2020], quoting Eschemuller v Eschemuller, 167 AD3d 983, 985 [2d Dept 2018]).

" 'A trial court is vested with broad discretion in making an equitable distribution of marital property, and 'unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed.' Moreover, where, as here, "a determination as to equitable distribution has been made after a nonjury trial, the trial court's assessment of the credibility of witnesses and the proffered items of evidence is afforded great weight on appeal'" (Sufia v Khalique, 189 AD3d 1499, 1500 [2d Dept 2020] [internal citations omitted]).

Marital property is defined in DRL §236B(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." Separate property is defined as including "property acquired before marriage" or "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" (DRL §236B[1][d][1], [3]).

After considering the aforementioned principles of law, the statutory factors, and the circumstances of this particular case, the Court equitably distributes the marital property as follows:

Real Property

Marital Residence - XXXXX, Bronxville, NY 10708

The parties stipulated that Plaintiff purchased the marital residence during the marriage for $1,296,750.00 with monies from her separate property inheritance.^[FN210] While title to the home was placed in both parties' names, Plaintiff testified that she did not intend to gift the purchase price to the Defendant by placing the home in joint names. Instead, Plaintiff expected that if the home was sold, she would receive her separate property contribution, and the parties would share any appreciation in value.^[FN211] There is no mortgage on the home.

Plaintiff testified she would like to remain in the home with the children. She seeks a separate property credit for the purchase price. If the home is sold, Plaintiff proposes to share the equity over and above her separate property contribution with Defendant. If Plaintiff purchases the home, she proposes to buy out Defendant for one-half of the difference between her separate property credit and the $2,000,000 valuation established in the court-ordered appraisal.^[FN212]

Defendant argues Plaintiff is not entitled to a separate property credit for the purchase price of the home because it was transmuted into marital property when Plaintiff placed title in both names. He argues, citing applicable case law, that that Plaintiff gifted the purchase price of the home to the marriage when she placed title in joint names. He submits the property should be sold at fair market value and the net proceeds of sale equally divided between the parties. Alternatively, Defendant seeks an order permitting either party to buy out the other party's one-half share of the marital residence.^[FN213]

It is settled law that where a marital asset is "acquired, in part or in whole, with separate property funds . . . court have usually given the spouse who made the separate property contribution a credit for such payment before determining how to equitably distribute the remaining value of the asset (Fields v Fields, 15 NY3d 158, 167 [2010]). The holding in Fields has continued to be followed.^[FN214]

In Philogene v Delpe-Philogene, 195 AD3d 963 [2d Dept 2021], Plaintiff-husband appealed from a judgment of divorce after a non-jury trial where the court awarded him on $32,500 for his interest in the marital residence. The Second Department affirmed. In that case, [*36]the parties stipulated as to the valuation of the marital residence at the time it was transferred into both parties' names, and as to the home's appreciation in value during the marriage. In its decision, the trial court awarded the husband only half of the stipulated appreciation in value. This ruling effectively determined that the wife was entitled to a separate property credit for her contribution of separate property towards the creation of the marital residence as marital property. On appeal, the Second Department cited to the oft-repeated maxim that the trial court is vested with broad discretion in distributing marital property, and "unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed" (citing Kaufman v Kaufman, 189 AD3d 31, 26 [2d Dept 2020] [internal quotation marks omitted]; see Santamaria v Santamaria, 177 AD3d 802, 804 [2d Dept 2019]). The Second Department held that contrary to the husband's contention, the Supreme Court providently exercised its discretion in awarding the wife a credit, equal to the stipulated valuation of the marital residence as of March 2006, for her contribution of separate property towards the creation of marital property (see Spencer-Forrest v Forrest, 159 AD3d 762, 765 [2d Dept 2018]; Coffey v Coffey, 119 AD2d 620, 622 [2d Dept 1986]). Notably, the court stated that

[e]ven though the [wife] changed the character of the property from separate property to marital property by placing the marital residence in both parties' names (see Spencer-Forrest v Forrest, 159 AD3d at 765; Schmidlapp v Schmidlapp, 220 AD2d 571, 572 [2d Dept 1995], a separate property credit is not precluded as a matter of law when separate property has been transmuted into marital property (see Spencer-Forrest v Forrest, 159 AD3d at 765; Myers v Myers, 119 AD3d 1114, 1116 [2d Dept 2020]) (emphasis added). (Philogene v Delpe-Philogene, 195 AD3d 963, 964-965 [2d Dept 2021]).

Similarly, in Falgoust v Falgoust, 15 AD3d 612 (2d Dept 2005), the husband and his brother purchased the former marital residence paying the full purchase price in cash with separate property funds. The property was sold and the proceeds applied toward the new marital residence with title taken in the name of the parties as tenants by the entirety. The Second Department held that the husband was entitled to a separate property credit for the value of the former marital residence even though he used the net proceeds from its sale as partial payment on a new marital residence with title taken in the names of both parties as tenants by the entirety (citing Diaco v Diaco, 278 AD2d 358, 359 [2d Dept 2000]; Monks v Monks, 134 AD2d 334, 336 [2d Dept 1987]; Coffey v Coffey, 119 AD2d 620, 622 [2d Dept 1986]; cf. Carney v Carney, 202 AD2d 907 [2d Dept 1994]) (Falgoust v Falgoust, 15 AD3d 612, 614 [2d Dept 2005]).

Here, as in the cases cited above, Plaintiff is entitled to receive a credit for the purchase price of the marital residence, reflecting her separate property contribution. Defendant's citation to Imhof v Imhof, 259 AD2d 666 [2d Dept 1999], does not dictate otherwise. In that case, the husband contributed $62,852.84 of his separate property funds toward the parties' business and sought to receive a credit for that amount after trial. The court held that while "[s]eparate property can be transmuted into marital property when the actions of the titled spouse demonstrate his intent to transform the character of the property from separate to marital . . . there was every indication that the husband intended to comingle his funds by depositing the proceeds of the sale of his separate property into joint accounts and by sharing the proceeds for family and business purposes." The Imhof case is inapposite here, where Plaintiff testified at trial that she never intended to gift the purchase price of the marital residence to the marriage and placed Defendant's name on the deed because of pressure from the Defendant and as a result of [*37]his false representation to her that he had placed a residence in Morocco in joint names.

Similarly, the Defendant's citation to Vertucci v Vertucci, 103 AD3d 999 [3d Dept 2013] does not require a different result here. In Vertucci, the husband asserted that he contributed $97,500 of his separate property toward the purchase of land for the marital residence and that he used $55,000 of separate property toward construction costs, all during the marriage. The purchase of the land and the construction of the house occurred during the marriage, and were, therefore, presumptively entirely marital property. "Based on its assessment of the evidence presented, Supreme Court determined that the husband failed to prove that separate funds were used to purchase and construct the marital residence." Accordingly, the Third Department affirmed the trial court's denial of a credit and noted that "the partial use of separate funds to acquire a marital asset does not mandate that a credit for separate funds be given" (Vertucci v Vertucci, 103 AD3d at 1003 [3d Dept 2013].

The Court's holding in Vertucci v Vertucci, 103 AD3d at 1003 [3d Dept 2013] recognizes that trial courts are imbued with substantial discretion in fashioning marital property awards based on the circumstances of each case. There, the denial of a separate property credit flowed from the trial court's determination that the husband failed to meet his burden of proving that the funds used to acquire and construct the marital residence were separate property. Conversely, in the case at bar, the parties stipulated that the purchase price of the marital residence was paid with Plaintiff's separate property inheritance and Plaintiff testified that it was not her intention to gift the purchase price to the marriage.

Upon consideration of relevant case law and the evidence adduced at trial, this Court finds that Plaintiff is entitled to a return of her separate property contribution to acquire the marital residence and that the increase in value of the property from approximately $1.3 million dollars to $2 million dollars is marital property to be distributed between the parties.

While neither party demonstrated a need to remain in or return to the home, the Court agrees with Plaintiff that it is desirable that the children remain the marital residence to afford them stability in their home life, the ability to remain in the same neighborhood, and to attend the same schools. Accordingly, the Plaintiff shall have the option of buying-out Defendant's interest in the property, or of listing the property for sale. If Plaintiff is intent on keeping the premises, she may do so if: (1) within fifteen (15) days of the date of this Decision After Trial, Plaintiff gives Defendant written notice of her intent to pay him his equitable share of the increase in value of the marital residence and (2) Plaintiff pays Defendant his share of the increase in value of the property within forty-five (45) days of the date of the notice.

In the event Plaintiff fails to give timely notice of her intent to Defendant or fails to pay Defendant his equitable share in the time allotted, the property shall be listed for sale in an amount mutually agreed upon with a real estate broker within thirty (30) days from the date of entry of the judgment of divorce. If the parties cannot agree on a real estate broker, then the property shall be listed by a broker of each party's choice as co-brokers. The parties shall accept any bona fide offer to purchase the property within five (5%) percent of the listing price.

If the property does not sell at the listing price, the parties shall adjust the listing price as recommended by the broker (or co-brokers). Plaintiff be solely responsible for all carrying costs of the property during her occupancy while it is listed for sale. Neither party shall do anything to inhibit or impair the salability of the property.

In the event the property sells for less than the appraised value, then the net equity (after Plaintiff receives her separate property credit) of both parties shall be reduced equally. If the [*38]property sells for more than the appraised value, then each parties' interest shall be increased by 50% of the net difference.

The Wyoming Apartment

The Plaintiff shall be awarded the apartment located at XXXXX, Teton Village, Wyoming, as her separate property.

The parties stipulated that the "Wife is the sole title owner to property at XXXXX, Teton Village, WY. Said property was transferred to Plaintiff from her brother, M. Y. J. by Warranty Deed dated May 4, 2016."^[FN215] At trial, Defendant admitted that the property was a gift, acknowledged he is not on the deed,^[FN216] and that no money was exchanged for the apartment.^[FN217] Defendant admitted there is no documentary evidence suggesting the property was gifted to him.^[FN218] Additionally, Defendant admitted that Outpost, Inc. managed the apartment,^[FN219] that he was not a party to the Outpost contract and did not receive any rental income.^[FN220]

The Defendant's admission that the property was a gift transferred solely to the Plaintiff with her retaining all rental income establishes that the Wyoming property is separate property (see Embury v Embury, 49 AD3d 802, 804 [2d Dept 2008] [holding property purchased by wife's mother during the marriage and gifted to the wife without consideration is separate property]).

The Defendant's claim that the Wyoming property was gifted to him ignores the fact that he is not on the deed. On cross-examination, Defendant changed his testimony after he was shown his updated Statement of Net Worth and argued that the Wyoming property was compensation to the Plaintiff for assisting in her father's divorce.^[FN221] The Defendant failed to present any competent evidence of this assertion and admitted that Plaintiff did not appear in her father's divorce litigation as an attorney, there was no evidence that any invoices were submitted to the Plaintiff's father for Plaintiff's alleged services, the Plaintiff does not practice matrimonial law, Plaintiff's father obtained matrimonial counsel, and the divorce occurred in Morocco where the Plaintiff cannot and does not practice law.^[FN222] Additionally, the Defendant admitted that Plaintiff knew she was to receive the Wyoming property prior to her father's marital separation, and that the Plaintiff's siblings and step-mother all received apartments from Plaintiff's father.

The Court notes that Defendant wasted a great deal of trial time because of his failure to concede that the Wyoming apartment is Plaintiff's separate property without any credible [*39]evidence to the contrary.

Marrakesh, Morocco Property

The Moroccan residence is marital property. The Defendant testified he acquired land in Morocco in 2011 but did not sign a contract or pay money for the property until 2017. His March 13, 2023 SNW lists him as the title owner of the property and states that the source of funds to acquire it was "employment," which would render the Moroccan residence marital property because it was purchased during the marriage with marital funds. In his Updated SNW for trial, Defendant contradicted himself and listed the source of funds to acquire the property as "inheritance from father," suggesting the Moroccan residence is his separate property.

The Defendant failed to meet his burden of demonstrating the Moroccan property is his separate property. When shown his March 13, 2023 SNW at trial, Defendant testified that when he filled it out he forgot to list his inheritance from his father. He stated " . . . instead of saying inheritance, I said marital or employment, I guess."^[FN223] He stated that his father passed away in 1983, when the Defendant was 8 years old. When asked when he received his inheritance, the Defendant's testimony was confusing and not supported by competent evidence. In sum, Defendant testified that his sister and her husband purchased property in Morocco and gave cash to a notary on the Defendant's behalf to obtain a home for him in his name. When asked if he had records showing where the cash came from, the Defendant stated he did not.

Accordingly, the Defendant shall have the option to either buy-out Plaintiff's interest in the property, or to list the property for sale. The parties are directed to follow the same procedure to buy-out or sell the property as set forth earlier in this Decision After Trial in the section regarding the disposition of the marital residence.

Bank/Brokerage/Retirement Accounts

The parties do not dispute the distribution of funds and amounts with respect to the following marital accounts:

a) Defendant's Fidelity Cash Management Account *6448, with a date of commencement (hereafter "DOC") value of $134,999.42. Plaintiff is entitled to 50% of the balance in the account in the amount of $67,499.71.

b) Defendant's Fidelity Investment Account *9398, with a DOC value of $425,071.00. Plaintiff is entitled to 50% of the balance in the account in the amount of $212,535.50.

c) Defendant's Chase Checking Account *6850, with a DOC value of $54,288.47. Plaintiff is entitled to 50% of the balance in the account in the amount of $27,144.24.

d) Defendant's Chase Savings Account *9581, with a DOC value of $250.82. Plaintiff is entitled to 50% of the balance in the account in the amount of $125.41.

e) Plaintiff's Chase Checking Account *6970, with a DOC value of $4,000.00. Defendant is entitled to 50% of the balance in the account in the amount of $2,000.

f) Plaintiff's Chase Savings Account *7035, with a DOC value of $2,800.00. Defendant is entitled to 50% of the balance in the account in the amount of $1,400.

g) Joint TD Bank Checking Account *1405, with a DOC value of $14,957. Each party is entitled to 50% of the balance in the account in the amount of $7,478.50.

h) Plaintiff's TD Bank Checking Account *5901, with a DOC value of $14,095.00. Defendant is entitled to $7,047.50.

The parties do not dispute that the following accounts are the Plaintiff's separate property:

a) TD Savings Account *6642, with a DOC value of $20,000.

b) Chase Checking Account *5067, with a DOC value of $14,579.

The parties stipulated that the children's TD Savings Accounts *0062 and*0357, each having a DOC value of $20,702.69, shall be transferred to 529 educational accounts.

Regarding Plaintiff's disputed TD Savings Account *9303, which had a DOC balance of $258,995, Plaintiff maintains that the account is her separate property because the source of the funds on deposit was traceable to monies received from her father and from the proceeds of sale of her pre-marital apartment in New York City.^[FN224] Plaintiff concedes that $12,598 of marital funds were deposited in the account between January 2017 and the DOC.

It is settled law that the "titled spouse may seek to rebut the presumption that any commingled funds became marital property by tracing the source of the funds with sufficient particularity (Overton v Overton, 118 AD3d 858, 858 [2d Dept 2014].^[FN225]

The Overton case is instructive here. Overton involved the deposit of both marital and separate property in an account titled solely in the wife's name. There, the wife made a summary judgment motion determining that certain bank accounts held a total sum of $88,314.99 as of the date of commencement of the action and were her separate property to the extent of determining that $38,786 of that total was her separate property. The Second Department affirmed. The court explained that the "Plaintiff met her prima facie burden of establishing her entitlement to judgment as a matter of law with respect to the issue of whether the sum of $38,786 in her bank accounts was her separate property by providing documentation that she received the total amount in the form of gifts and inheritances . . . "

Here, the evidence demonstrates that Plaintiff's TD Savings Account *9303 is her separate property despite the commingling of $12,598 of marital funds, because she traced the remaining funds in the account with sufficient particularity.

Similarly, Plaintiff's Chase Savings Account *2579 is her separate property. Plaintiff testified that this account is in her sole name and had an opening balance of zero on March 14, 2022. On April 18, 2022, Plaintiff withdrew $252,000 from TD Bank Account *9303 and deposited $250,000 into this account. Defendant submits that this transfer of funds rendered the Chase Account marital. Defendant is in error. While the TD Savings Account admittedly included $12,598 of co-mingled marital funds, Plaintiff sufficiently traced the balance of funds in that account such that they remained her separate property. Plaintiff's transfer of $250,000 in separate funds from her TD Bank Account to this account does not change the separate character of the funds nor render the Chase Savings Account *2579 marital. Plaintiff can trace the source of the $250,000 deposited in the Chase Savings Account to the $580,000 deposit of separate funds in her TD Savings Account *9303, from which it was transferred (see Overton v Overton, 118 AD3d 858, 858 [2d Dept 2014], Masella v Masella, 67 AD3d 749 [2d Dept 2009], Louie v Louie, 203 AD3d 1520 [3d Dept 2022], Belios v Rivera, 164 AD3d 1411 [2d Dept 2018]; McGarrity v McGarrity, 211 AD2d 699 [2d Dept 1994].

Plaintiff's TD Business Bank Account *2164 is a marital account and Defendant is entitled to 50% of the DOC value of $22,301.74 ^[FN226] in the amount of $11,150.87. Plaintiff testified she opened this account during the marriage in the name of The Law Firm of M. J. and deposited the earnings from that firm as well as her salary from F. into the account. Plaintiff's earnings during the marriage are marital funds, thus rendering the account marital.

Finally, each party shall be responsible for any credit card debt or other debt in his or her [*40]name.

Retirement Assets

The Plaintiff has the following retirement accounts:

1) TD Private High Yield IRA account *7531 with an approximate DOC value of $6,392.^[FN227]

2) IRA account *1654 with a value of $1,649 as of 12/31/22.^[FN228]

3) Principal Roth IRA account *1565 with a value of $1,251.99 as of 12/31/22.^[FN229]

The Defendant has the following retirement accounts:

1) IRA RBC account *9817, with a DOC value of $0.

2) IRA RBC account *9922, with an approximate value of $418,724.29 as of 12/31/22.

3) IRA RBC account *7399, with an approximate value of $51.52 as of 12/31/22.

4) Fidelity 401K with an approximate value of $88,605.54, with Defendant's employer I. B.

"[P]ension and retirement benefits belonging to either spouse attributable to employment during the marriage constitute marital property subject to equitable distribution upon divorce" (McGrarth v McGrath, 261 AD3d 369, 370 [2d Dept 1999]). Here, the parties stipulated at trial to equalize the marital portion of their retirement assets as of the DOC.^[FN230] The parties agreed that contributions and gains and losses from the date of marriage through the DOC are marital property to be equally divided. Further, it was agreed that contributions and any gains on any contributions after the date of commencement shall remain each party's separate property. Counsel agreed to use Tova QDRO & Retirement Valuators to perform the necessary calculations and prepare any necessary documentation.^[FN231]

Counsel are directed to obtain and submit a proposed Qualified Domestic Relations Order ("QDRO") or Domestic Relations Order ("DRO"), whichever applicable, with notice of settlement, to the Court within sixty (60) days of the date of this Decision After trial, with any costs incurred in the preparation of a QDRO or DRO to be shared equally by the parties.

Any adverse tax consequence and penalties associated with an early withdrawal of funds from the retirement accounts by either party shall be borne entirely by that party.

Business Interests

The parties do not dispute that Plaintiff's law practice known as The Law Firm of M. J. closed in 2022. Accordingly, other than the disbursement of the funds in the Plaintiff's TD Business Bank Account *2164 on the DOC as noted above, there is nothing to distribute.

Defendant has a 50% interest in a "business" known as C. Corp. which was incorporated in Delaware on January 24, 2022. The Defendant testified that the business consists of a Memorandum of Understanding between C. Corp. and Eromed University of Fes, Morocco. Defendant testified "there's no money involved" and no bank accounts. Accordingly, there is nothing to distribute. The Defendant shall be awarded the entirety of his 50% interest in the company and shall hold Plaintiff harmless and indemnify her from any and all liability associated with said business.

Art and Jewelry

The parties agreed that certain pieces of jewelry and artwork are Plaintiff's separate property as follows: the Rolex watch (Ex. 98 "B"); the Audemars Royal Oak watch (Ex. 98 "D"); the Chopard Imperiale watch (Ex. 98 "F"); the Hermes Apple Watch (Ex. 98 "K"); the Baume et Mercier Linea watch (Ex. 98 "K" [sic]); the Jaeger-LeCoultre watch (Ex. 98 "Q"); the Cartier Posha watch (Ex. 98 "R"); and the Gwen Knight The White Dress screen print & Jacob Lawrence Douglas screen print (Ex. 98 "W"). These items shall be distributed to the Plaintiff pursuant to the parties' stipulation.

Plaintiff testified that the remainder of the jewelry and artwork delineated on Exhibit 98 is her separate property because the items were gifted to her during the marriage, except that Plaintiff admitted that her Diamantissimo earrings are marital.^[FN232] The Defendant refused to admit Plaintiff's separate property claims except for those stipulated to be Plaintiff's separate property at trial but failed to present evidence that the items were gifted to him. The Defendant does not claim that Plaintiff's jewelry and art were purchased during the marriage, nor does he dispute that Plaintiff received substantial jewelry from her father and family friends. Notably, the Defendant did not identify any jewelry or artwork on either of his SNWs and he admitted that the parties purchased only a single piece of art during the marriage, and that everything else was gifted.^[FN233] Defendant seeks to have the artwork and jewelry in dispute appraised and sold, with the proceeds divided equally between the parties. Plaintiff seeks an order finding the disputed jewelry and art to be her separate property and awarding the items to her.^[FN234]

The Court hereby awards all disputed items of jewelry and artwork identified at trial to the Plaintiff as her separate property. The Defendant wasted a great deal of the Court's trial time by failing to concede these items to Plaintiff, despite any evidence that the items were purchased during the marriage or gifted to the parties as a couple.

Vehicles and Miscellany

The parties own a 2018 Audi Q7 and a 2015 Subaru Outback which are marital property. As values were not provided, the parties are directed to sell the vehicles for their Kelly Blue Book values and share the proceeds of sale equally, within sixty (60) days of the date of this Decision After Trial.

Defendant purchased a "machine" during the marriage for C. Corp. for $42,000. The machine has never been used and remains in its original packaging. The parties are directed to sell the machine and divide the proceeds equally, or the Defendant may buy-out the Plaintiff's interest therein at his sole discretion. The parties are directed to either sell or buy-out the other's interest in the machine within sixty (60) days of the date of this Decision After Trial.

There was no credible testimony at trial that either party dissipated marital funds. While Plaintiff bemoans that Defendant sent money to Morocco during the marriage, there was no evidence that the transfers of money were for any non-marital purpose or that Plaintiff timely objected to the transfers. Similarly, Plaintiff argues that Defendant's trial testimony regarding his finances was incredible and suggests he hid or dissipated substantial sums. As no competent evidence of hidden or dissipated assets was proffered at trial, this claim is denied.

With respect to alleged violations of the Automatic Orders, this Court found at trial that both parties engaged in violations by making post-commencement transfers of property.^[FN235] As neither party moved to hold the other in contempt due to the violations, no relief is granted.

Each party seeks an award of counsel fees from the other.

Plaintiff asserts that Defendant should be directed to pay $350,000 in legal fees. Plaintiff contends that Defendant is the monied spouse earning hundreds of thousands of dollars more than Plaintiff. In addition, Plaintiff submits that Defendant unnecessarily increased her counsel fees by making two motions which were denied and by taking unreasonable positions as trial. Plaintiff argues that Defendant unreasonably failed to concede that the Wyoming property is Plaintiff's separate property, failed to concede the admissions contained in a Notice to Admit served on him prior to trial, failed to concede Plaintiff's entitlement to a separate property credit for her $1.3 million dollar contribution to purchase the marital residence, and failed to concede that the jewelry and artwork gifted to Plaintiff during the marriage are her separate property. Moreover, Plaintiff incurred counsel fees in connection with her Family Offense petition which was consolidated into this action and for which the Defendant was provided counsel from his employer.

Plaintiff's retainer agreement, counsel fee invoices and SNW are all in evidence. Updated invoices also were provided. Plaintiff incurred fees of $390,344.99 as of March 5, 2024, less a [*41]$10,000 courtesy credit and exclusive of time billed from March 5, 2024, to the filing of Plaintiff's post-trial submissions. Based upon the Court's review of said invoices, the Court is satisfied that the counsel fees billed by Plaintiff's counsel are reasonable given the issues in this case, the procedural history of the case, and the need to litigate both custody and finances. The Court is also satisfied that Plaintiff's counsel are qualified, experienced matrimonial attorneys and that the fees charged are reasonable in comparison with attorneys of similar skill and experience.

Defendant seeks an award of counsel fees and sanctions against Plaintiff. Defendant asserts Plaintiff caused him to spend $130,000 just to prepare for and attend the trial, and for the preparation of his post-trial submissions. Defendant contends there was no need for a lengthy trial, eight days of which were taken by Plaintiff's case. With extreme vitriol and contrary to this Court's ultimate findings herein, Defendant's counsel argues that Plaintiff allowed her anger and disdain to permeate the litigation and that rather than simply filing for divorce, Plaintiff "orchestrated an exit plan to remove Defendant from the marital residence, and the lives of the children based on false allegations of domestic abuse against her and the children."^[FN236] Incredibly, counsel argues that "[t]he documentary evidence would [sic] prove that these allegations were demonstrably false, and that her mental health and bi-polar disorder played a significant role in her decision to initiate the divorce . . . and that throughout the pendency of the action she lied to the police, the children's school, and this Court to gain an advantage. . . . Sanctions upon Plaintiff for her frivolous and vexatious litigation should be awarded to Defendant in the amount of $100,000."^[FN237]

Defendant's retainer agreement, counsel fee invoices and SNW are all in evidence. The Court is satisfied that the counsel fees billed by Defendant's counsel are reasonable given the issues in this case, the procedural history of the case, and the need to litigate both custody and finances. The Court is also satisfied that Defendant's counsel are qualified, experienced matrimonial attorneys and that the fees charged are reasonable in comparison with attorneys of similar skill and experience.

By statute, there is "a rebuttable presumption that counsel fees shall be awarded to the less monied spouse" (DRL § 237[a]). "In exercising judicial discretion to determine counsel fee applications, the Courts must consider not only the financial circumstances of the parties, but the circumstances of the case, including the relative merits of the parties' positions and whether either party has delayed the proceedings unreasonably or engaged in unnecessary litigation. A less-monied spouse should not be expected to exhaust or spend down a prospective or actual distributive award to pay counsel fees as the result of unreasonable or excessive litigation conduct by the adverse party. On the other hand, the more affluent spouse should not be treated as an open-ended checkbook expected to pay for exorbitant legal fees incurred by the less affluent spouse through excessive litigation or the assertion of unreasonable positions" (Kaufman v Kaufman, 189 AD3d 31, 74-75 [2d Dept 2020]).

Here, the Defendant demonstrated conduct and adopted positions that prolonged the case and caused unnecessary litigation. For example, the Defendant unreasonably failed to concede [*42]issues of separate property in connection with the Plaintiff's artwork and jewelry, apartment in Wyoming and separate property contribution to the acquisition of the marital residence, despite the lack of evidence supporting his positions. Additionally, Defendant spent a great deal of trial time on the issue of Plaintiff's mental illness, while admitting that she is a good mother, has been the primary caretaker of the children, and that he had no concerns about the children's safety while traveling on business.

Under these circumstances, and considering the merits of the parties' respective positions, the degree to which each party sought to reasonably resolve the matter without resorting to trial, and the financial circumstances of the parties, the Court finds that the Defendant, as the monied spouse, shall pay the sum of $300,000 as and for a counsel fee award to Plaintiff's counsel as hereinafter directed.^[FN238] The Defendant's request for an award of counsel fees and sanctions against Plaintiff is denied.

The Court has considered the additional contentions raised by the parties and finds them to be without merit. All claims for relief not specifically addressed herein are denied.

Accordingly, it is hereby:

ORDERED that Plaintiff is granted a divorce on the ground of the irretrievable breakdown of the marriage as set forth in DRL §170(7); and it is further

ORDERED that Plaintiff's prayer for a final Order of Protection is denied; and it is further

ORDERED that Plaintiff shall have sole legal custody and sole physical custody of the children; and it is further

ORDERED that following meaningful consultation with the Defendant via OFW or any other similar communication program or application, Plaintiff shall have final decision-making authority as to all major matters including medical, dental, psychological and psychiatric treatment, religion, education, and extra-curricular activities, including summer camp; and it is further

ORDERED that Defendant shall have access time with the children every Tuesday and Thursday from after school/camp pick up (or 8:00 a.m. if no school or camp) through 7:00 p.m., and on every alternate Thursday from after school/camp pick up (or 8:00 a.m. if no school or camp) overnight, with return to school or camp Friday morning. If there is no school or camp that day, Defendant shall return the children to Plaintiff's residence by 9:00 a.m. Additionally, Defendant shall have access with the children on alternating weekends from after school/camp pick up on Friday (or 8:00 a.m. if no school or camp) through Monday at school/camp drop off (or 8:00 a.m. if no school or camp); and it is further

ORDERED that the parties shall each be entitled to two weeks of non-camp time during the children's summer vacation. The parties shall select their weeks, whether consecutive or separate, and notify the other in writing no later than April 15th of each year. The Defendant shall have the first selection of summer access time in odd-numbered years and Plaintiff shall have the first selection in even-numbered years; and it is hereby

ORDERED that the parties shall alternate major holidays each year, with the parties [*43]reversing the holiday schedule in each subsequent year. Accordingly, for the year 2025, Defendant shall have access time with the children during the Thanksgiving holiday (Thanksgiving Day at noon through Sunday); Plaintiff shall have access time with the children from Christmas Eve to Christmas Day at noon and Defendant shall have access time from then through New Year's Eve at noon. Defendant shall have both Eids with the children every year; Plaintiff shall have Easter with the children every year; and it is further

ORDERED that the parties shall share the children's school vacations each year by alternating the winter and spring vacations annually. In even numbered years Plaintiff shall have the children's spring vacation and Defendant shall have the winter vacation; in odd numbered years the Plaintiff shall have the children's winter vacation and Defendant shall have the children's spring vacation; and it is further

ORDERED that Plaintiff shall have the children on Mother's Day and her birthday, and Defendant shall have the children on Father's Day and his birthday regardless of which parent would otherwise have the children according to the schedule set forth herein. Both parents shall have access to the children on the children's birthday; the parent with physical custody on the birthday shall be afforded the first choice of whether he/she wishes to have the children the morning of the birthday or the evening. If the parties cannot agree to a time for the other to see the children on their birthday, then the children shall be delivered to the other no later than 3:00 p.m. that day and returned no later than 7:00 p.m. The arrangement made for the first birthday that follows this Decision After Trial shall apply to all subsequent birthdays; and it is further

ORDERED that the parties shall engage in meaningful consultation through OFW or any other similar communication program or application as to extra-curricular activities and summer camp for the children, and mutually agree upon a financial budget for said activities; and it is further

ORDERED that prior to discussing any vacation, trip, event, or activity in which the children's participation might affect the other parent's right to contact or visit either or both of the children, the parent seeking to allow the children to participate in such trip shall consult with the other parent so that the parties may fashion a mutually agreeable resolution designed to minimize the effect of such trip, activity or event on the other parent and/or to discuss and agree upon make-up time; and it is further

ORDERED that neither parent shall take the children out of New York State for a period in excess of forty-eight (48) hours without advising the other of his/her intent to do so and without providing a phone number and address for the non-traveling parent to reach the other, if necessary, at least forty-eight (48) hours in advance of such travel; and it is further

ORDERED that no travel outside the tri-state region (New York, New Jersey, Connecticut) shall take place unless the traveling parent provides the other with a full written itinerary including mode of travel, names of persons traveling, housing or hotel identification, and, if applicable, flight information. International travel for vacations is permitted with at least two (2) weeks' notice and only to a country which is a signatory to the Hague Convention; and it is further

ORDERED that the Plaintiff shall maintain possession of the children's passports and other important documents (e.g., birth certificates, social security cards) when they are not needed for the children to travel. The Defendant shall promptly return the children's passports to Plaintiff after any travel requiring him to have possession; and it is further

ORDERED that neither party shall unreasonably interfere with the children's desires to [*44]communicate with the other parent when not in that parent's custody; and it is further

ORDERED that the children's sur-name is not to be changed from "J. M." absent the express consent of both parties, application by the child(ren) for such change to a Court of applicable jurisdiction, or the child(ren)'s marriage; and it is further

ORDERED that neither party shall initiate, encourage, or allow any person other than the parties hereto to be referred to by the children as "Father/Dad/Daddy" or "Mother/Mom/Mommy" (or similar terms); and it is further

ORDERED that neither party shall disparage the other party in the presence of, or within hearing distance of the children, or allow a third party to do so; and it is further

ORDERED that both parties shall be and are hereby afforded unfettered access to the medical, dental, educational, therapeutic and any other records pertaining to the children; and it is further

ORDERED that each parent shall immediately advise the other in the event a medical need arises, whether routine or emergent. If a child is ill for a period in excess of forty-eight (48) hours, both parents shall have access to the child regardless of which parent then enjoys physical custody. Similarly, if a child is hospitalized for any reason, both parents shall have the right to visit with the child at any place where the child might then be confined, subject only to the rules and regulations of the institution where the child is confined, and the best interest of the child as determined by his/her treating physician; and it is further

ORDERED that Defendant shall pay child support to the Plaintiff in the amount of $5,906.00 per month commencing on the first day of the first full month after the date of this Decision After Trial; and it is further

ORDERED that Defendant shall remit to Plaintiff the sum of $9,950 for outstanding amounts due and owing for unpaid add-on expenses to child support. Payment shall be made within ten (10) days of Defendant's receipt of invoices showing proof of payment by Plaintiff. If such proof already has been provided, Defendant shall remit payment for the outstanding sums within ten (10) days of service of this Decision After Trial with Notice of Entry; and it is further

ORDERED that Defendant shall maintain a life insurance policy in an amount sufficient to secure the payment of child support until such time as the children reach twenty-one (21) years of age or are otherwise emancipated as defined in Domestic Relations Law § 240(1-b)(b)(2); and it is further

ORDERED that the parties shall share the costs of statutory add-on expenses on a pro rata basis with Plaintiff responsible for 37% of those expenses and Defendant responsible for 63% of those expenses; and it is further

ORDERED that Defendant shall maintain health insurance for the children with Plaintiff responsible for 37% of the cost of providing health insurance benefits for the children, which shall be deducted from Defendant's child support obligation; and it is further

ORDERED that the parties shall share in the cost of the children's unreimbursed healthcare expenses on a pro rata basis with Plaintiff responsible for 37% of those expenses and Defendant responsible for 63% of those expenses; and it is further

ORDERED that the parties shall share in the cost of the children's extra-curricular activities and summer camp expenses on a pro rata basis with Plaintiff responsible for 37% of those expenses and Defendant responsible for 63% of those expenses; and it is further

ORDERED that Plaintiff shall be entitled to take any available tax deduction for the children in even numbered years and Defendant shall be entitled to take the deduction in odd [*45]numbered years so long as he is current on his child support obligations on the first day of the year for which the deduction is to be declared; and it is further

ORDERED that Plaintiff is entitled to a separate property credit in the sum of $1.3 million dollars in connection with the marital residence; and it is further

ORDERED that the increase in value of the marital residence, i.e., the difference between purchase price and the $2,000,000 valuation of the marital residence, is marital property; and it is further

ORDERED that if Plaintiff is intent on keeping the marital residence, she may do so if: (1) within fifteen (15) days of the date of this Decision After Trial, Plaintiff gives Defendant written notice of her intent to pay him his equitable share of the increase in value of the marital residence and (2) Plaintiff pays Defendant his share of the increase in value of the property within forty-five (45) days of the date of the notice; and it is further

ORDERED that in the event the marital residence is to be sold, it shall be listed on the market for sale with a licensed real estate broker mutually agreed upon by the parties within thirty (30) days from the date of entry of the Judgment of Divorce. If the parties cannot agree on a real estate broker, each party shall select a broker, both of whom shall co-list the marital residence for sale. The parties shall accept any bona fide offer within five (5%) percent of the listing price. If the marital residence does not sell at the listing price, the parties shall reduce the listing price as recommended by their broker(s) or, if there is no agreement between the brokers, no more than 3% every 60 days until the marital residence is sold; and it is further

ORDERED that Plaintiff shall be solely responsible for all carrying costs of the property during her occupancy of the marital residence if/while it is listed for sale; and it is further

ORDERED that neither party shall do anything to inhibit or impair the salability of the marital residence; and it is further

ORDERED that upon the sale of the marital residence, the net proceeds shall be shared equally by the parties after payment to Plaintiff of her $1.3 million-dollar separate property credit; and it is further

ORDERED that if the marital residence sells for less than the appraised value, then the net equity (after Plaintiff receives her separate property credit) of both parties shall be reduced equally. If the property sells for more than the appraised value, then each parties' interest shall be increased by 50% of the net difference; and it is further

ORDERED that the marital portions of the balances held in any savings, checking or other non-retirement accounts as of the date of commencement of this action shall be equally divided between the parties as set forth herein within sixty (60) days of the date of this Decision After Trial, with the exception of the accounts held f/b/o the children, which shall be transferred to 529 educational accounts; and it is further

ORDERED that the parties shall equalize the marital portion of their retirement assets as of the date of commencement of the action. Contributions and gains and losses from the date of marriage through the date of commencement shall be equally divided. Contributions and any gains on contributions after the date of commencement shall remain each party's separate property; and it is further

ORDERED that the parties shall retain an actuary to perform the necessary calculations and prepare any necessary documentation such that a proposed QDRO or DRO, whichever is applicable, shall be submitted to the Court with notice of settlement within sixty (60) days of the date of this Decision After Trial, with any costs incurred in the preparation of a QDRO or DRO [*46]to be shared equally by the parties; and it is further

ORDERED that any adverse tax consequences and penalties associated with an early withdrawal of funds from the retirement accounts by either party shall be borne entirely by that party; and it is further

ORDERED that Plaintiff is awarded the apartment located at XXXXX, Teton Village, Wyoming, as her separate property; and it is further

ORDERED that the Defendant shall have the option to either buy-out Plaintiff's interest in the Moroccan property, or to list it for sale and sharing the net proceeds of sale equally with Plaintiff. The parties are directed to follow the same procedure to sell or buy-out the property as set forth in connection with the disposition of the marital residence; and it is further

ORDERED that Defendant is awarded his interest in C. Corp. and shall hold Plaintiff harmless and indemnify her from any and all liability associated with said business; and it is further

ORDERED that all disputed items of jewelry and artwork identified at trial are awarded to the Plaintiff as her separate property; and it is further

ORDERED that the parties' 2018 Audi Q7 and 2015 Subaru Outback vehicles shall be listed for sale at their respective Kelly Blue Book values within sixty (60) days of the date of this Decision After Trial. The proceeds of the sales shall be divided equally; and it is further

ORDERED that the machine Defendant purchased for C. Corp. during the marriage shall be sold with the proceeds divided equally between the parties. In the alternative, the Defendant may buy-out the Plaintiff's interest therein at his sole discretion within (60) days of the date of this Decision After Trial; and it is further

ORDERED that Plaintiff is awarded final counsel fees in the amount of $300,000, payable by Defendant to Plaintiff's counsel within sixty (60) days of the date of this Decision After Trial; and it is further

ORDERED that all other prayers for relief not specifically addressed herein are denied; and it is further

ORDERED that Plaintiff shall settle Findings of Fact and Conclusions of Law, a Judgment of Divorce, and all other documents necessary to allow the Court to enter Judgment in accordance with this Decision After Trial, on at least five (5) days' notice, within thirty-five (35) days of the date hereof. Failure to timely settle the Findings of Fact and Judgment of Divorce may result in this action being dismissed, or other appropriate sanctions.