I. BACKROUND

This financial trial spanned across 11 days from September 2023 to September 2024. Each transcript is uploaded to NYSCEF and will be cited using the date of the trial and the indication "Tr." Ahead of trial, the parties entered into a Stipulation of Undisputed Facts dated September 28, 2023 ("SUF"). The parties also entered into a Stipulation agreeing on the transfers that took place between Defendant and his family ("Transfer Stip."). The parties submitted their post trial-memoranda on January 31, 2025.

The parties married in 2016. There is one child of the marriage M.D. born in 2019. This action was commenced on May 25, 2021 (the "DOC"). In the Preliminary Conference Order dated July 8, 2021, the parties resolved the issue of grounds, relying on irretrievable breakdown pursuant to DRL 170(7). At the time of trial, the Plaintiff had exclusively resided with the child since August 26, 2021, and Plaintiff had been residing in Turkey ^[FN1] since August 2021.

Throughout the pendency of this matter numerous Court appearances were held and decisions ordered. On November 15, 2021, the Honorable Matthew Cooper, J.S.C. ("Judge Cooper") ordered that Plaintiff have interim sole legal and physical custody of the Child. On November 15, 2021, Judge Cooper ordered Defendant to pay the sum of $6,000 on the first day of every month as Interim Support and the sum of $40,000 in interim attorney fees to plaintiff's counsel, Rower LLC.

The parties sold the Former Marital Residence on July 18, 2022 for $1,310,000, at which time the proceeds were held in escrow. Pursuant to the Order of this Court dated September 7, 2022, Plaintiff was authorized to withdraw funds from the escrow account to meet Defendant's child support obligations previously set by Judge Cooper. This occurred more than once and the parties entered into a stipulation dated January 30, 2025, regarding all the transfers made from the Escrow Account ("Escrow Stip.").

Notably, after many appearances, on the first day of the scheduled custody trial, September 15, 2022, the parties resolved the issue of custody, agreed to the terms on the record and were allocuted. Pursuant to the agreement, on October 25, 2022, this Court entered an order awarding Plaintiff sole legal and physical custody of the Child. In the stipulation and order Defendant's parental access was limited to virtual access given his absence and continued residence in Turkey.

At trial, the Court heard testimony from Plaintiff; Defendant; cryptocurrency expert Nicolas Himonidis ("Himonidis"); Defendant's Father, L.D.; Defendant's Uncle, J.O.; Defendant's friend A.G.; and from Dr. Billings Fuess ("Dr. Fuess"). While the Court generally finds all witnesses were credible and forthcoming, the Court has difficulty crediting specifically Defendant's testimony in full. He tailored his testimony in a way that would shade the facts in a light more favorable to their own overall narrative (Gass v. Gass, 42 AD3d 393, 394 [1st Dept 2007] [appropriate to look to motives in evaluating credibility]). Although this is normal and to be expected in a matrimonial trial, Defendant gave additional reasons to discount his testimony during the trial. For example, Defendant's manner of testifying was at times contradictory, and he demonstrated a much weaker memory for facts that were potentially harmful to his case than those that were helpful. Taken together, these undercut the Court's ability to fully believe his testimony.

The Court also cannot credit Plaintiff's testimony surrounding the monies Defendant received from his family as her testimony is directly contradicted by documentary evidence including documents signed or notarized by Plaintiff.

Both parties waive maintenance in their respective statements of proposed disposition. Accordingly, neither party is awarded maintenance.

A. Background

Distribution of the marital assets, despite the numerous stipulations of undisputed facts, has proven to be a much more challenging issue due to the loss of a major portion of the assets and seemingly more debt owed than liquid assets available. Yet, stunningly both parties engaged in a lengthy and litigious trial over minimal remaining assets.

According to her Statement of Proposed Disposition ("SPD"), summation and testimony Plaintiff requests to retain 100% of all assets in her name and 50% of the marital assets as of the DOC, and 100% of the remaining net proceeds from the sale of the former marital residence. In his summation ^[FN2] Defendant vaguely requests "that this [*2]Court equitably distribute the marital assets and liabilities" and that each party receive their separate property contribution to purchase the marital residence, subject to adjustments for the child support payments, and the remainder "should be equitably distributed" (Def. Sum. 4, 29). Defendant has testified that any monies received from his family was first sent to either his personal Chase account or LLC account, which also held some of his personal earnings, and was then transferred across the multiple investment accounts held in his name (1/25/2024 Tr. 25-30). Both parties assert that the only liquid asset to be distributed are the remaining proceeds from the sale of the former marital residence.

The Court's first task in distributing assets is to determine what falls within the marital estate (see Fields v. Fields, 15 NY3d 158, 161 [2010]). A trial court has broad discretion in deciding what is equitable under all the circumstances in determining a distribution of the assets (see Mahoney-Buntzman v. Buntzman, 12 NY3d 415 [2009]). Although marital property must be distributed equitably upon consideration of the circumstances of the case and the parties, "there is no requirement that the distribution of each item of marital property be made on an equal basis" (Taylor v. Taylor, 123 AD3d 693, 693 [2d Dept 2014]), nor is there a requirement that the parties should receive equal shares of equitable distribution, even when there is a child (Miller v. Xiao Mei, 295 AD2d 144 [1st Dept 2002]).

Indeed, Domestic Relations Law § 236(B)(5)(d)(16) authorizes the trial court to take into account "any other factor which the court shall expressly find to be just and proper." Therefore, "the trial court has substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances" (Mahoney-Buntzman, 12 NY3d at 420). Here, the court considered many of the DRL § 236(B)(5)(d) statutory factors including, but not limited to: the five year duration of the marriage at the time of the May 25, 2021, DOC; at the time of trial, Plaintiff and Defendant were 46 and 45 years old respectively; although the Court found that Defendant was struggling with his mental health Defendant offered testimony that at the time of trial he was feeling better, and both parties otherwise appeared to be in good health; Plaintiff has remained steadily employed while Defendant was unemployed but receiving support from his parents; and finally and arguably most paramount to this case before this Court examines the wasteful dissipation of assets by Defendant.

The marital nature of most of the distributable assets is not contested. This includes the proceeds from the marital apartment, the parties' checking, savings and investment accounts, as well as their retirement accounts.

On the other hand, a central concern in this case are monies and digital currency received by Defendant from various family members and the status of such funds. The parties have stipulated that between 2017 and 2021 Defendant received $1,282,000 in funds from his parents (Stipulation). These funds were deposited or transferred into Defendant's JP Morgan Chase accounts ending in xGGGG or xFFFF. Defendant claimed these monies were loans from his parents, that he owed them $1.35 million, and, including interest, owed over $2 million (1/22/2024 Tr. 53-54).

Plaintiff testified she was aware Defendant's parents were sending him money throughout the marriage in order to "get it out of the country" because the "economy in Turkey was suffering" and that Defendant was trading the money and making a lot of income with it. She claimed not to know if these funds were loans or gifts. She also claimed she never heard that Defendant had to return the monies he received back to his parents. Yet, she admitted that perhaps some of the money was meant to purchase an apartment for Defendant's parents. She did not believe the money was given to both her and Defendant or know what its purpose was. She also denied being aware that Defendant signed promissory notes when he received the money. She agreed that if the money belonged to Defendant's parents, she would not be seeking a portion of it (9/28/2023 Tr. 65-66;10/13/2023 Tr. 21-23, 72-73).

At the same time, Plaintiff admitted that she was aware that Defendant's father had given him authority to manage his financial affairs and that his father had executed a power of attorney for this purpose (10/13/2023 Tr. 28-32). The power of attorney form, dated September 30, 2017, was entered into evidence (Power of Attorney). Plaintiff served as the notary on this document and in fact notarized the signatories. In addition, Plaintiff's sister and her sister's boyfriend served as witnesses, and also signed the document.

Defendant identified the power of attorney and recognized his father's signature as well as Plaintiff's signature on it (10/13/2023 Tr. 133). Pursuant to his power of attorney, Defendant signed a contract to purchase an apartment in New York on behalf of his parents, who would be moving to New York (id. at 135). He told Plaintiff about this plan.

Defendant further testified that he spoke to his parents many times about managing their finances. They spoke about investing in the United States and about the unstable conditions in Turkey and the idea of his parents moving money to the United States and eventually living here. Plaintiff was also included in these conversations (1/22/2024 Tr. 17-19). Defendant and his father agreed that his father would send him money as a loan and that [*3]Defendant would invest the money in various things to grow the money (1/22/2024 Tr. 20). Defendant was obligated to repay the loan.

Money was transferred to Defendant in multiple transactions and he executed promissory notes for these sums (1/22/2024 Tr. 21). Relatedly, Defendant's Chase bank records were entered into evidence. Defendant explained that the records showed various transfers from his father between 2017 and 2021. Sometimes, Defendant would move the money from his father's account to his own (1/22/2024 Tr. 50). Various promissory notes executed by Defendant were also entered into evidence (see NYSCEF Docs XXX-XXX).

Defendant explained he invested the money from his parents in stocks, bonds, metals and more (1/22/2024 Tr. 57). To do so, he moved the money around between numerous accounts, all of which were in his individual name. He also had his own money from income or savings in these same investment accounts. It was all "mixed" in his name. All the trading activity and profits were reflected on his tax returns, which were entered into evidence. The money from his parents was treated as a debt for tax purposes, and he spoke to Plaintiff about this about the tax filings. But eventually the plan was that all his parents' money would be returned to them with interest (1/22/2024 Tr. 58-61, 72; 1/25/2024 Tr. 31; see tax returns).

At trial Defendant explained that while visiting ^[FN3] his father in Istanbul a car approached him while he was taking a walk. As he got closer to the car, he saw the man in the back seat flash a gun just before he was forced inside the car ^[FN4] and told him had seven days to pay 100 bitcoin (or "BTC") that he owed or else they would kill him and his family ^[FN5] (1/25/2024 Tr. 72). Approximately, two-three days later Defendant testified that he was again approached by a car, this time with three men (the same two men from before plus an additional man) who jumped out the car, pushed Defendant and his friend, A.G. into a corner and threatened and yelled at them while holding guns (1/26/2024 Tr. 11-13).

The second incident was corroborated by A.G. in more detail, specifically that one armed man pointed a gun at his belly while the other armed man was screaming at Defendant (6/7/2024 Tr. 41-45). Defendant further testified that after the second incident he began liquidating ^[FN6] all his investment accounts except for one ^[FN7] in order to comply with the demand of 100 BTC and eventually sent approximately 78-80 BTC which translates to about $2,900,000 (id. at 17-18). He then borrowed the remaining 20 BTC from his friends to complete the payment (id. at 25-26). Both Defendant and A.G. testified that they did not report this incident to the police. A.G. claimed he feared the police, while Defendant claimed that the Turkish police were corrupt and he has bad history and experiences with the police (6/7/2024 Tr. 47-48; 1/26/2024 Tr. 8).

Plaintiff asserts that Defendant is guilty of egregious financial misconduct when he liquidated the marital estate. On cross, Defendant testified that a number of transactions involving him transferring money across certain accounts without Plaintiff's consent or Court order occurred just days after Plaintiff filed for divorce and prior to the [*4]alleged incident (1/29/2024 Tr. 8-20). Expert witness Nicolas Himonidis ("Himonidis") noted that when reviewing Defendant's Coinbase account from the time period of January 1, 2018, to October 26, 2021, there was a total of about 8-900 transactions and only 19 of those were outbound transactions. More specifically, 18 of the 19 outgoing transactions occurred after the date of commencement. (10/12/2023 Tr. 35-36). Himonidis further testified that the post commencement outbound transactions were sent to approximately 7 different addresses, most of which "were addresses where they were newly created, either the day of the transfer or a day or two before the transfer" (id. at 65).

Himonidis could not identify to whom the digital currency was transferred (10/12/2023 Tr. 57). However, he opined that the transactions in question were "indicative of a person transferring the funds from their custodial account to a private noncustodial wallet that they've created and chosen to send their funds to, so that the funds are no longer at a custodial location, like Coinbase, where third parties can exercise control over it, to a private, noncustodial wallet where no one other than the creator of that wallet can exercise control over it (id. at 66).

The Court does not find Defendant's testimony credible. Defendant contradicted himself on cross when he was reminded that in a prior written sworn affidavit, he claimed that his father "agreed to sell his home to settle the balance of the obligation" (Def. Aff., Pl. Ex. 8 ¶ 35). More importantly, Defendant testified that at the time of the alleged attack he was given a pen and paper and told to write down three addresses they gave him, only two of which he used to complete the transactions (1/26/2024 Tr. 16). He also claimed it took him "a couple weeks" to collect the BTC and that after the second encounter he said that he will get it done in a month (id. at 18). Thus, if Defendant was given three addresses to send the crypto to after the first encounter, and then took weeks to send it over to two of the three addresses that means the addresses were created in advance of the transactions. This directly contradicts cryptocurrency expert Himonidis's findings that the post commencement outgoing transactions happened across seven different addresses, not two or three, and that those addresses were newly created within a day or two before the transfer (10/12/2023 Tr. 65). Overall, the Court finds the extortion story to be implausible, and too convenient a story created by Defendant to explain away his liquidation of all the accounts.

B. Commingled Assets and Egregious Economic Conduct

Under Domestic Relations Law § 236, marital property includes "all property acquired by either or both spouses during the marriage" except separate property (id. § 236[B][1][c]). Marital property "should be 'construed broadly,' " and separate property "should be construed 'narrowly'" (Fields v. Fields, 15 NY3d at 162—163 [2010], quoting Price v. Price, 69 NY2d 8, 15, [1986]). The Domestic Relations Law "creates a statutory presumption that 'all property, unless clearly separate, is deemed marital property' and the burden rests with the titled spouse to rebut that presumption" (Fields, 15 NY3d at 163).

"Separate property that is commingled with marital property presumptively becomes marital property" (Szypula v. Szypula, 42 NY3d 620, 625 [2024]). The party seeking to rebut that presumption must adequately trace the source of the funds (see Pullman v. Pullman, 176 AD2d 113 [1st Dept 1991]), and must establish that the separate property was commingled as a matter of convenience, without the intention of creating a beneficial interest (see Torkin v. Susac, 236 AD3d 1082, 1086 [2d Dept 2025]; Renck v. Renck, 131 AD3d 1146, 1149 [2d Dept 2015).

Here, Defendant established through his credible testimony, Plaintiff's testimony and the power of attorney Plaintiff notarized, as well as promissory notes, that the money he received from his parents were loans or were being managed/invested by him on their behalf. It was undisputed, however, that he commingled, or "mixed" these funds with other funds that were marital, and thus it presumptively became marital property.

However, Defendant also established that he deposited these monies into existing bank and investment accounts for convenience and to maximize investment opportunities. He also explained that he was required to return the money with interest. In addition, he used some of the funds as a downpayment on an apartment for his parents. Plaintiff was aware of the nature of the money and her testimony to the contrary is not credible. Ultimately, she agreed that if the money belonged to Defendant's parents, she would not be seeking a portion of it. Plaintiff seemed to recognize the separate nature of these monies but could not allow herself to be honest about this or concede this point. In sum, Defendant overcame the presumption that the commingled funds were marital (see e.g. Belilos v. Rivera, 164 AD3d 1411, 1412-13 [2d Dept 2018]).

Yet, the inquiry does not end there. The parties stipulated that Defendant received $1,282,000 in funds from his parents. However, Defendant admitted that he liquidated $2.9 million from his various accounts. The Court has already noted that it finds Defendant's extortion claim to be incredible. Instead, the Court concludes that in response to this litigation Defendant invented an elaborate story and purposely liquidated millions in assets without regard to the martial relationship or the role of this Court. Even if the Court were to find it appropriate to give Defendant a separate property credit of $1,282,000, there is still the matter of the more than $1.6 million in additional funds he [*5]withdrew from the accounts. Those additional funds were presumptively marital and according to Defendant included his income earned during the marriage as well as interest/profit he earned during the marriage from investments. Defendant did not make any effort to trace, distinguish or overcome the presumption that the $1.6 million in the accounts was marital property.

The First Department has held that it is appropriate to penalize one party in the distribution of assets from a marital estate where their egregious economic misconduct prevented the Court from making an equitable determination (see Maharam v. Maharam, 245 AD2d 94 [1st Dept 1997]). Indeed, in egregious cases, such as this one, the court may consider one party's fault in fashioning a distribution award (see Mohamed v Abuhamra, 222 AD3d 1344, 1346 [4th Dept 2023][affirming award of 100% of known marital assets to the wife where husband secreted marital funds and disregarded court orders to preserve marital assets]).

Defendant claims that the liquidation of the marital assets was not a wasteful dissipation because it was a result of extortion and done under duress. Regardless of whether Defendant liquidated martial assets to satisfy an alleged blackmail demand or to send the funds to unknown addresses of his own making is of no significance as both constitute an egregious economic misconduct violating the automatic orders in effect during this litigation. Specifically, his looting of the marital estate left only one liquid asset in the marital estate, the escrowed money from the sale of the former marital residence. Here, Defendant's transfer of all their assets prevents this Court from making an equitable determination as to the parties' rightful share of martial property. Had Defendant chosen a different path, perhaps the Court could have credited him with the amount he proved was from his parents, and carefully considered how to equitably distribute the balance of the funds. Defendant's outrageous liquidation of all of his investment accounts removed that opportunity.

Moreover, it is significant, and borne out in the record evidence, that in addition to his stunning liquidation of assets, Defendant entirely abandoned his wife and son for years and absconded to Turkey. Defendant's abandonment of the family meant that Plaintiff worked and assumed all child-rearing responsibilities, as well as full financial responsibility for the parties' son, since Defendant also failed to pay child support. In other words, the Court is considering not only the financial issues but other contributions by Plaintiff such as raising the parties' child and being the only spouse maintaining the home in Defendant's absence. These are also factors considered by this Court in equitable distribution, separate from economic fault (see K. v B., 13 AD3d 12, 15-19 [1st Dept 2004]).

Considering the totality of the circumstances and the marital assets remaining, Plaintiff is entitled to a disproportionate share of the distribution. Specifically, Plaintiff will be awarded 100% of assets in her name, 50% of any assets in Defendant's name that held a balance over $5,000 as of the DOC and 100% of the escrowed money.

C. Retirement Assets

The New York Legislature has determined that marital property shall include "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" (Domestic Relations Law § 236[B][1][c]). Whether marital property shall be distributed or a distributive award made in lieu of, or to supplement, facilitate or effectuate a distribution of marital property are matters committed to discretion of trial judge in first instance. McKinney's DRL § 236, Pt. B, subd. 5. The court may distribute the assets based upon considerations of fairness (see Day v. Day, 152 AD2d 827 [3d Dept 1989]).

The parties have stipulated that the retirement accounts the parties hold are as follows:

• As of the DOC, the balance in the Fidelity 401(k) account, titled in plaintiff's sole name with a separate property claim, totaled $108,077;

• As of the DOC, the balance in the Fidelity 403b/Roth IRA, titled in plaintiff's sole name, totaled $20,449;

• As of May 31, 2021, the balance in the Charles Schwab IRA account ending in xAAAA, titled in defendant's sole name, totaled $38,440.12;

• As of September 21, 2021, the balance in the Charles Schwab account ending in xBBBB, titled in defendant's sole name, totaled $0.19; and

• As of September 21, 2021, the balance in the Fidelity 401(k), titled in defendant's sole name, totaled $28,942.64. (SUF ¶¶ 36, 37, 50,55, 60).

Here, the parties' retirement accounts are marital property. Although these types of assets are normally subject to equitable distribution, the Court previously found that Defendant engaged in economic misconduct as evidenced here wherein within five months of the DOC Defendant liquidated his xBBBB Schwab account leaving on $0.19 remaining. For the reasons addressed above the Court finds it appropriate to grant Plaintiff 100% of the retirement accounts in her name and 50% of the current amount of the Fidelity 401(k) account and Charles Schwab IRA account in Defendant's name.

D. Checking and Savings Accounts

The parties have stipulated to having the following bank accounts:

• As of the DOC, the balance in the Citibank Checking account ending in xCCCC, titled in plaintiff's sole name, totaled $2,043.85;

• As of the DOC, the balance in the Chase Savings account ending in xDDDD, titled in plaintiff's sole name with a separate property claim, totaled $67,872;

• As of the DOC, the balance in the Charles Schwab Savings account ending in xEEEE, titled in plaintiff's sole name with a separate property claim, totaled $5,694;

• As of the DOC, the balance in the Chase Checking account ending in xFFFF, titled in defendant's sole name, totaled $3,292.34; and

• As of the DOC, the balance in the Chase Checking account ending in xGGGG, titled in defendant's sole name, totaled $28,103 (SUF ¶¶ 33-35, 38, 39).

Here, the parties bank accounts are marital property. Although these types of assets are normally subject to equitable distribution, with the exception of separate property claims, the Court previously found that Defendant engaged in economic misconduct and for the reasons addressed above the Court finds it appropriate to grant Plaintiff 100% of the bank accounts in her name and 50% of the current amount of the xGGGG Chase Checking account in Defendant's name.

E. Investment Accounts

The parties have stipulated to having the following Investment Accounts:

• As of May 25, 2021, the balance in the Charles Schwab account ending in xHHHH, titled in defendant's sole name, was $177,925;

• As of May 31, 2021, the balance in the Charles Schwab account ending in xIIII, titled in defendant's sole name, totaled $161,407;

• As of May 31, 2021, the balance in the Charles Schwab account ending in xJJJJ, titled in defendant's sole name, totaled $22,640.53;

• As of the DOC, the balance in the Charles Schwab account ending in xKKKK, titled in defendant's sole name, totaled $0;

• As of May 31, 2021, the balance in the Charles Schwab account ending in xLLLL, titled in defendant's sole name, totaled $159,660.12;

• As of the DOC, the balance in the Charles Schwab account ending in xMMMM, titled in defendant's sole name, totaled $50,005;

• As of the DOC, the balance in the Charles Schwab account ending in xNNNN, titled in defendant's sole name, totaled $0;

• As of the DOC, the balance in the Charles Schwab account ending in xOOOO, titled in Ollefina, LLC , totaled $358,863.73;

• As of the DOC, the balance in the Charles Schwab account ending in xPPPP, titled in the Child's name, totaled $22,000;

• As of the DOC, the balance in the Coinbase account, titled in defendant's sole name, totaled $0;

• As of the DOC, the balance in the Circle Invest account, titled in defendant's sole name, totaled $0; and

• As of the DOC, the balance in the Equity Zen account, titled in defendant's sole name, totaled $0; (SUF ¶¶ 41-49, 51-53).

As of September 21, 2021, the balance in the above Charles Schwab accounts ending in xHHHH, xIIII, xJJJJ, xLLLL, and xNNNN, all titled in Defendant's sole name, total less than $1.00 collectively.

Again, as the Court previously found that Defendant engaged in economic misconduct and for the reasons above a disproportionate award of ED is warranted. While the Court finds it appropriate to grant Plaintiff 50% of the investment accounts in Defendant's name there is no money to distribute due to Defendant's egregious conduct, and this has already been considered in the award of known assets.

F.Marital Debt/ Defendant's Family Loans

In general, financial obligations incurred during the marriage which are not solely the responsibility of one party should be shared equally by the parties (Alleva v. Alleva, 112 AD3d 567[2nd Dept 2013] citing Mahoney-Buntzman v Buntzman, 12 NY3d 415, 421 [2009]; Bogdan v Bogdan, 260 AD2d 521, 522 [2nd Dept 1999]).

Plaintiff argues improperly that the monies transferred from Defendant's family were gifts. The Court disagrees with Plaintiff's argument given the substantial testimony presented, steps taken by both parties and Defendants family members to execute the power of attorney, coupled with promissory notes. The Court agrees with the Defendant that these transactions were loans thus creating debt which are subject to equitable distribution . When determining the distribution of this debt the Court heavily considers the Defendant's conduct in liquidating and transferring around $2.9 million dollars worth of marital assets that could have been used to satisfy the parties debts. Also, while Defendant claims that none of the notes have been satisfied there is also no evidence put forth that Defendant's family has taken any steps to enforce the notes, nor does it seem they will anytime soon. In fact, Defendant's Father testified that if Defendant needs further financial support for his PhD program, he will do what he can to support him financially (6/7/2024 Tr. 32). Considering these factors and as a matter of equity the Court finds that Defendant is responsible for 100% of the debt owed to his family.

i. Bitcoin

Defendant's Uncle, J.O. testified that he loaned Defendant 150 BTC for him to market and grow in exchange for yearly interest (4/17/24 Tr. 5). More specifically, this arrangement was memorialized in a written agreement wherein J.O. was to loan Defendant the BTC and he was to receive one percent interest yearly from Defendant, and after ten years, Defendant was to return the entire 150 BTC to J.O. with interest (BTC Agreement, Def. Ex. PP). J.O. admits that he has taken no steps to enforce this agreement because he is aware of the hardship the Defendant is in (4/17/2024 Tr. 11, 15).

In one instance Defendant argues that this is his personal property and must be returned to him. In another instance he argues that because it is now missing it should be considered marital debt. To the extent the paper wallet containing the loaned BTC is never returned to the Defendant, the debt incurred and owed to J.O. shall be 100% his responsibility.

G. Personal Items from Former Martial Residence

Another area of contention between the parties are various personal items and furniture that had been missing at the former marital residence by the time it was sold. Plaintiff asserts that she is entitled to three traditional wool rugs loaned to her by her mother, twelve prints from her stepfather's personal art collection, and one oil painting by her grandmother which she asserts Defendant has unilaterally kept (Pl. SPD, 23). Similarly, Defendant asserts that Plaintiff is in possession of several items he left at the marital residence, including "some gold, cash, [*6]Bitcoin, USB drives with cold wallet" (6/17/2024 Tr. 57). Defendant later clarified that the gold in question were coins and bars the parties received at their wedding. He attempted to search the house and speak with Plaintiff about the items. The items remained missing and ultimately Defendant filed a police report online. He seeks the return of these items and does not further address these claims in his summation. The Court notes the lack of proof as to the existence, whereabouts, or value of said items, and urges that there should be no equitable distribution of them, as a result. Instead, the Court finds that to the extent they exist, all personal property discussed herein shall be returned to the respective party.

H. Proceeds of Former Marital Residence

The parties owned the former marital residence as joint tenants with a right of survivorship (SUF ¶7). The former marital residence was purchased on May 12, 2016, where Plaintiff contributed $261,773.66 of her separate property and Defendant contributed $173,940.42 of his separate property towards the purchase (id. at ¶¶ 16-19). Defendant fully satisfied ^[FN8] the mortgage of $975,000 on the Marital Residence and the parties informally agreed that the interest on the marital home would then be split 25% to the Plaintiff and 75% to the Defendant; this agreement was never put in writing (10/13/2023 Tr. 38-41). The residence was later sold on July 18, 2022, for $1,310,000 (id. at ¶¶ 21-22). The net proceeds of approximately $1,183,263.29 was then placed in an escrow account held by Plaintiff's counsel. As of January 24, 2025, the amount in the escrow totals $932,008.20 ^[FN9] (Escrow Stip. 2)

Plaintiff argues that she should be awarded 100% of the remaining net proceeds from the sale of the former marital residence and to the extent Defendant is owed any amount it should be less $207,125.31 which totals the amount the Court permitted the Defendant to use to pay for his support obligations. Interestingly, despite claiming to own 75% of the net proceeds, at trial Defendant only sought $100,000 from the escrow account to "jump start" his life claiming the rest can go to the Plaintiff (1/26/2024 Tr. 56). However, Defendant now seeks for each party to receive their separate property ^[FN10] contribution to purchase the Marital Residence and the remainder to be equitably distributed (Def. Sum. 29).

The Court considers it appropriate to award each party a credit to what they put towards the purchase of the residence, specifically awarding Plaintiff a credit of $261,773.66 and a further credit of $207,125.31 as and for the escrowed funds used to satisfy Defendant's support obligation, and Defendant a credit of $173,940.42. Although Defendant satisfied the mortgage, he did so using accounts he had commingled with martial assets and he could not sufficiently delineate the funds in the account as separate property (see Fields v. Fields, 15 NY3d 158, 169 [2010]).

However, the Court also considers the previous determination that Plaintiff is entitled to a substantial amount of credits in connection with the liquidation of the investment accounts in Defendant's name. Given the disproportionate sum of credits that would be owed to the Plaintiff and as a matter of equity and practicality the Court instead finds it warranted to award Plaintiff 100% of the proceeds from the sale of the former marital residence held in the escrow account.

As the custodial parent, Plaintiff is entitled to an award of child support (see DRL 240). The Child Support Standards Act (CSSA) provides "a precisely articulated, three-step method for determining child support" (Matter of Cassano v. Cassano, 85 NY2d 649, 652 [1995]). The first step requires the computation of statutory "[c]ombined [*7]parental income" after which a limited number of deductions are allowed (Domestic Relations Law § 240[1—b][b][4]; [c] [1]). Second, the court multiplies that figure, up to the statutory cap, by a specified percentage based upon the number of children in the household — 17% for one child — and then allocates that amount between the parents according to their share of the total income (see Domestic Relations Law § 240 [1—b][b][3]; [c][1] ). Finally in the third step, where combined parental income exceeds $183,000, "the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of [Domestic Relations Law § 240(1—b)] and/or the child support percentage" (Domestic Relations Law § 240[1—b][c][1] ).

The "heavy-lifting" for the courts predominantly concerns the first step — determining the incomes of the parents. In calculating the level of child support that must be paid, "[a] court need not rely upon a party's own account of his or her finances but may impute income based upon the party's past income or demonstrated future potential earnings" and "[t]he court may impute income to a party based on his or her employment history, future earning capacity, educational background, or money received from friends and relatives" (Bouie v. Joseph, 91 AD3d 641 [2nd Dept 2012 (citations omitted)]).

There is no dispute in the record that the Defendant is currently not earning income; rather, the dispute is whether he should have income imputed to him based on his earning potential due to his previous successful career during the marriage. As to Plaintiff's income, there is no dispute that she is currently employed and was earning approximately $120,000 at the time of trial.

Regarding the Plaintiff's income, she provided tax returns and Statement of Net Worth which demonstrate that in 2020 she earned a gross income of approximately $99,991 ^[FN11] ; in 2021 she earned a gross income of approximately $91,618; in 2022 she earned a gross income of approximately $105,228; and at the time of trial she earned approximately $120,000 ^[FN12] (Joint Tax Returns, Pl. Ex. 21; Pl. 2021-2022 Income Tax Returns, Pl. Ex's 61, 162; 10/13/2023 Tr. 44)^[FN13] . Considering the consistent nature of her work and income, and her increased earning potential if she worked full time, Plaintiff's income shall be set at $130,000 for the purposes of calculating child support.^[FN14]

As to the Defendant's income, the Plaintiff has sufficiently shown that the Defendant has an earning potential and can re-enter the workforce; it is just unclear as to when. Defendant has a master's degree in computer science and testified to trading both stocks and cryptocurrency for himself, his family and friends (10/13/23 Tr. 86, 102-104). Previously in 2020 Defendant accepted a position as a Senior Software Engineer at a major social technology company, with a base salary of $205,500, $600,000 in stock and a $75,000 sign on bonus. From his employment, in 2020 he earned a total gross income of $350,349.74, plus $27,600 in compensation from [Redacted] Consulting LLC, plus $261,803 in capital gains from investments; in 2021 he earned a total gross income of $350,349; and in 2022 he earned a total gross income of $151,31359 (SUF ¶¶ 26-30).

Defendant was employed until July 6, 2022, when he received a termination email ^[FN15] from his employer (Termination Email, Def. Ex. IIII). Defendant claimed that due to his mental health he was unable to work.

On or about September 16, 2021, he let Plaintiff know that he was unable to work and that Plaintiff or her mother should take over payments for "maintenance, assessments, insurance and real estate taxes... " (Text Exchange, Pl. Ex. 13). However, Defendant testified on cross that while he was not technically working, he was on leave and his employer was obligated to continue to pay him, thus he was still getting income until he was terminated (4/16/2024 Tr. 19, 20).

Defendant started seeing Dr. Fuess ^[FN16] virtually on or around June 2021 (9/30/2024 Tr. 9). Defendant discussed the major challenges he was facing at the time with Dr. Fuess, including his inability to concentrate, problems sleeping, and decreased appetite (id. at 12). During their initial sessions in 2021 Dr. Fuess noticed Defendant had a sad affect and looked unkept (id. at 14). These observations continued and remained the same throughout their sessions between June 2021 to June 2022 (id. at 31). At some point in time after starting therapy with Dr. Fuess, Defendant went on medical leave and then on disability (id. at 29-30).

As a starting point, there was no medical evidence adduced at trial as to the nature of Defendant's mental health status and the only evidence seeking to excuse his lack of income and compliance with support obligations was his own testimony and that of Dr. Fuess. Specifically, the termination email Defendant relies on refers to his status at the time as "unapproved leave" and makes no reference to the type of leave if any, his employer previously approved him for or why (Termination Email, Def. Ex. IIII). In the interim, all of his expenses, including living expenses and mandatory ^[FN17] expenses including the parent coordinator and attorney's fees, were covered by his parents. In fact, his father testified that upon Defendant's move to New York, if necessary, they will additionally help cover the cost of his PhD program (6/7/2024 Tr. 32).

Further, he has since made efforts to secure new employment. Notably, Defendant states that he sent out about "50 to 100" resumes and received a job offer for a salary of approximately $85,000 however he believes he can obtain a job making at least $150,000 (1/26/2024 Tr. 43, 55-56). Thus, considering the Defendant's prior employment, his most recent job offers, financial support provided by his parents, and his ability to trade and make money outside of traditional employment the Court does find it appropriate to impute $300,000 per year to the Defendant at this time for the purposes of child support.

With incomes established, the Court now determines the total combined parental income (CPI). The total CPI for this family is $388,618.16. This total is reached by using the imputed incomes set forth above and subtracting the FICA and local taxes for each party. The Plaintiff's income represents 29.72% of the CPI and the Defendant's income represents 70.28% of the CPI. Their CPI income up to the operative child support statutory cap of $183,000.00 is $183,000.00. The presumptive guideline combined basic child support obligation is $2,592.50 per month, with the Defendant being obligated to pay $1,821.90 per month. The Court finds this result is neither just nor appropriate for this family based upon, inter alia, the marital status quo, the income held by the Parties, the child's educational costs, the age and health of the parents, and the status quo expenses of the Child. Accordingly, the Court finds justice requires deviation from the guideline amount.

Based on the reasons above, the Court finds an adjusted cap of $250,000 to be more appropriate for consideration. Under the adjusted cap, the Defendant's basic child support obligation would be $2,488.93 per month, and the Court now orders that he pay this amount monthly.

Further, there is record evidence to support an award of add-on expenses to maintain the lifestyle or expected lifestyle for the child. For example, both parties attended private school and the child now attends a private [*8]school.^[FN18] Accordingly, the parties shall pay for these expenses in certain percentages based on the proportion of their income to the CPI, or as "determined by the court" (see DRL 240 [1-b][c][(4-7]). As such, in line with their prorated income, Defendant shall pay 70% of any unreimbursed medical expenses, health insurance, and child care needed to enable Plaintiff to work.

As for private school tuition, camp tuition, and extracurricular activities, the Court has considered the circumstances of the case and of the respective parties, as well as the best interest of the child. It is certainly appropriate and warranted to award these additional costs. However, given the significant family assistance available to both parties — for example Plaintiff testified that she received an advance of her inheritance in 2022 in order to purchase her $1.55 million apartment outright and lower her bills (9/28/2023 Tr. 131), and her parents have paid all her legal fees and various other expenses annually for the child including during the marriage — the Court determines that these add-on expenses should be paid 50% by Defendant and 50% by Plaintiff.

In light of Defendant's child support obligations, it is appropriate to direct that he maintain a life insurance policy as security for such obligations (see Domestic Relations Law § 236[B][8][a]; see also Siskind v. Siskind, 89 AD3d 832, 834 [2d Dept 2011]). Accordingly, the Defendant is directed to maintain a life insurance policy in the amount of $2,000,000 naming the child as beneficiary and Plaintiff as trustee for the benefit of the child. If necessary, he may utilize the two Prudential life insurance policies listed on his Statement of Net Worth to comply with this directive.

It has long been held that there is a strong public policy against recoupment of child support overpayments (Owens v. NYC Human Resources Admin., 177 AD3d 546, 547 [1st Dept 2019]; McGovern v. McGovern, 148 AD3d 900, 902 [2nd Dept 2017]). While it is not permitted under statute and caselaw the Court notes that it is well-established that if overpayment of pendente lite maintenance is found at trial, the Court may make appropriate adjustments, reallocations or offsets against the equitable distribution award (see Johnson v Chapin, 12 NY3d 461 [2009] [party was entitled to credit in calculating equitable distribution award for amount that his pendente lite spousal support payments exceeded final spousal maintenance award]; see also Habib v Habib, 227 AD3d 874 [2nd Dept 2024]).

Here, the pendente lite order in question states that the support amount of $6,000 per month is for unallocated temporary spousal maintenance and temporary child support. There was no further direction given regarding the allocation of that total award. This Court was only tasked with and has now determined a final award of child support in the amount of $2,700. Neither party is seeking maintenance and this Court will not be making any determinations regarding what if any maintenance award would have been appropriate. Defendant argues that he should be entitled to an overpayment credit of approximately $125,400.^[FN19] However, this calculation wrongly assumes that Judge Cooper never intended to award pendente lite maintenance and it is practically impossible for this Court to now set an allocation rate of Judge Cooper's 2021 order. Given the impracticability of this calculation the Court finds there shall be no retroactive maintenance overpayment award credit to Defendant.

Further, to the extent the Court may remedy an overpayment of maintenance during the pendency of the action (see Galvano v. Galvano, 303 AD2d 206 [1st Dept 2003]), the Court, in its discretion, declines to do so in consideration of the equities in this matter, including that Defendant never complied with the support order and Plaintiff had to utilize the escrow proceeds to obtain basic child support.

In matrimonial actions, the Court has discretion to direct one party to pay counsel fees for the opposing party (Domestic Relations Law ["DRL"] § 237). DRL § 237 further creates a rebuttable presumption that counsel fees shall be awarded to the non-monied spouse. This presumption reflects the strong policy concern of ensuring "that marital litigation is shaped not by the power of the bankroll but by the power of the evidence" (Charpie v Charpie, 271 AD2d 169, 170 [1st Dept 2000]).

It is therefore especially important to award counsel fees for the non-monied spouse when there is a substantial discrepancy between the incomes of the parties (id. at 171). However, in addition to looking at the incomes of the parties, "in exercising its discretionary power to award counsel fees, a court should review . . . all the other circumstances of the case, which may include the relative merit of the parties' positions" (DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]).

Here we have an interesting situation before the Court. Plaintiff is employed and has lower than average living expenses as well as significant family assistance. Regarding Plaintiff's request for an award of counsel fees, her attorney explains all the work she has done on the case and highlights the unwarranted work regarding custody trial preparations, Defendant's noncompliance with the Court's interim support order and Defendant's violation of automatic orders. Plaintiff provides her updated SNW, invoices ^[FN20] from counsel, and her promissory note ^[FN21] and ledger which identify the money she borrowed to pay her counsel fees (Pl. Ex's. 16, 19, 18). The invoices provided are heavily redacted and upon review the Court is unable to determine what specific services are being billed for. Normally, the Court would request unredacted invoices for in-camera review, but the Court will take into consideration that Defendant has not objected to the specific amount of fees sought, rather he broadly asks the Court to deny the counsel fee request.

Plaintiff focuses on the wealth in Defendant's family and the Court's determination that he is the monied spouse through imputed income, the amount of fees Defendant has paid to his attorneys, and she blames many of the fees incurred on Defendant. Yet, it is questionable whether Plaintiff actually owes the money she says she borrowed from her parents to pay counsel fees.

Plaintiff also seeks Counsel fees related to the financial trial in this matter. However, she does not directly state or provide information related to the amount of counsel fees incurred after settling custody. Nor does she provide invoices relating to the work done for the financial trial; the invoices end in September/October 2023. Plaintiff did testify that over $700,000 in legal fees had been paid by her parents (10/12/2023 Tr. 106).

It is notable that the issues of custody and parenting time have been resolved. However, it was not without pushback and unnecessary delay from the Defendant who did not live in the country at the time but still decided to contest custody from across the world up until the first day of trial. Defendant's litigation tactics, positions, and other behavior unnecessarily increased both parties counsel fees and prolonged this action. The Court also previously determined that the Defendant is the monied spouse and the parties' respective incomes and assets support that finding. Additionally, this Court has previously issued one award of interim Counsel fees in favor of the Plaintiff totaling $40,000. It is undisputed that this interim counsel fee award has not been complied with (SUF ¶ 15).

On the other hand, both parties must accept responsibility for insisting on a trial on their financial issues. They both took on untenable positions, particularly given the current reality of the limited remaining assets, and the undisputed origins and status of the monies received by Defendant. Thus, both parties should equally bear the burden of these counsel fees. In any event, Plaintiff did not even submit necessary evidence and invoices relating to the fees she claims were incurred for the financial trial.

In consideration of all the circumstances of the case, it is the view of the Court that it is just and appropriate to award $310,000 to Plaintiff in counsel fees for past services and an additional $40,000 for the previously ordered and unpaid interim fee award. Defendant shall pay $350,000 directly to Plaintiff's counsel within 120 days of this order, and in the event he fails to do so, Plaintiff and/or counsel is entitled to a money judgment for the total sum of $350,000.

All other relief sought and not granted herein is denied.

This constitutes the Decision of the Court.