Plaintiff, M.B., and Defendant, J.S., were married on August 22, 2015. They are the parents of the following three children: (1) S.S., who was born in 2015; (2) O.S., who was born in 2017; and (3) A.S., who was born in 2019. In addition, Plaintiff gave birth to another child in 2025, but it has been judicially determined that Defendant is not the father of that child. [*2](NYSCEF Nos. 87-88.) On March 20, 2023, Plaintiff commenced this divorce action against Defendant, alleging that the parties' relationship has broken down irretrievably for a period of at least six months (see DRL § 170[7]). In the Verified Complaint, Plaintiff alleges that the parties were married in a civil ceremony, and she was a resident of the State at the time this action was commenced and had been a resident for a continuous period in excess of one year immediately preceding the commencement of this action (see DRL § 230[1]).

The Complaint further alleges that no action for divorce was pending by either party against the other in any court of competent jurisdiction. Plaintiff seeks, inter alia, a judgment of absolute divorce, equitable distribution of the parties' marital assets, custody of the parties' minor children, an award of child support and maintenance, and exclusive use and possession of the former marital residence. On April 19, 2023, Defendant filed and served a Verified Answer, which contains one counterclaim that the parties' marriage has broken down irretrievably for a period of at least six months. The Verified Answer seeks, inter alia, custody of the parties' minor children, child support, and equitable distribution of the parties' marital assets.

The Court finds that, pursuant to DRL § 75-I, neither party is a member of the military of the United States and jurisdiction has been established pursuant to DRL § 230. The Court further finds that the requirements of DRL § 253 are not applicable and that the parties are in compliance with DRL § 236(B)(2)(b). Accordingly, based on the record before the Court, Plaintiff is entitled to a judgment dissolving the marriage pursuant to DRL § 170(7) (see Johnston v Johnston, 156 AD3d 1181, 1182 [3d Dept 2017] ["the husband's sworn testimony that his marriage to the wife had irretrievably broken down for a period of at least six months was sufficient to establish, as a matter of law, his cause of action for divorce pursuant to [DRL § 170(7)]"]; Trbovich v Trbovich, 122 AD3d 1381, 1382 [4th Dept 2014]).^[FN1]

This Court conducted a twelve-day non-jury trial on the following dates: January 14-17, 2025, January 21-24, 2025, and August 4-7, 2025. Plaintiff appeared with counsel, Monica R. Heath, Esq., and, in addition to testifying on her own behalf, Plaintiff called the following witnesses during her case-in-chief: (1) S.T., who is Plaintiff's significant other; (2) E.L., who is employed as the principal of the children's elementary school; (3) J.D., who is employed as the Director of Special Education in the children's school district; and (4) R.H., who provides respite care for Plaintiff. Defendant appeared with counsel, Tina Bennett, Esq., and, in addition to testifying on his own behalf, Defendant called S.G., a respite care worker, during his case-in-chief. During these proceedings, the Court received numerous exhibits from both parties and took judicial notice of the pleadings. The parties also submitted written summations. (NYSCEF Nos. 81-86.)

Finally, while conducting the trial of this matter, the Court had the opportunity to observe the demeanor of the witnesses who testified and weigh their credibility (see Massirman v. Massirman, 78 AD3d 1021 [2d Dept 2010] ["trial court, which had the opportunity to view the demeanor of the witnesses, was in the best position to gauge their credibility"]). It is well-established that, "[i]n a non-jury trial, evaluating the credibility of the respective witnesses and determining which of the proffered items of evidence are most credible are matters committed to the trial court's sound discretion" (Goldstein v Guida, 74 AD3d 1143 [2d Dept 2010]; Mosley v [*3]State, 150 AD3d 1659, 1660 [4th Dept 2017] ["Moreover, '[o]n a bench trial, the decision of the fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence'"]). Further, "in a nonjury trial, the court is presumed to be capable of disregarding any improper or unduly prejudicial aspect of the evidence" (People v Pabon, 126 AD3d 1447, 1448 [4th Dept 2015]). Accordingly, credibility determinations following a bench trial will not be disturbed "unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence, especially [where, as here,] the findings of fact rest in large measure on considerations relating to the credibility of witnesses" (Matter of Estate of Thomas, 179 AD3d 98, 102 [4th Dept 2019]).

As noted above, there are three children of the marriage—S.S., O.S., and A.S. All three children have been diagnosed with autism, among other things, and receive a range of special services both at school and their home. The parties resided together at the former marital residence located in Syracuse, New York, until Plaintiff vacated the residence with the children in July 2023 and relocated to Cicero, New York. The children's needs and the parties' respective parenting approaches in light of those needs were emphasized throughout the trial of this matter. For example, Plaintiff testified about the importance of the children's routines, having safety/security features in both her home and automobile to keep the children safe, using choice boards to keep the children motivated and on task, and utilizing specific techniques to help the children when they become dysregulated.

Defendant similarly testified about using token boards to reward the children's behavior. However, Defendant removed the security devices from the former marital residence after Plaintiff moved out because he felt they were unnecessary and became a distraction for the children. Notably, there have not been any reported incidents after those devices were removed when the children are in Defendant's care. This contrasts with Plaintiff's testimony that the children attempt to elope from her residence while in her care. Defendant credibly testified about instilling clear expectations and boundaries when parenting his children. In other words, when the children behave, they are rewarded; when they do not, there are consequences. The credible record evidence demonstrates that, despite Defendant's differing parenting style, Defendant has successfully navigated the children's behavioral needs.

The trial record reflects that Plaintiff has been the children's primary caregiver for most of their lives and, indeed, the Court entered an interim custody order on January 27, 2025, which gave Plaintiff primary residential custody of the children during the school year. (NYSCEF No. 75.) Plaintiff has been the most attuned to the children's medical and educational needs, while Defendant has questioned some of the children's diagnoses. However, Defendant credibly testified that he has not always been kept informed about important educational and medical decisions. At some point, the parties' relationship deteriorated to the extent that there is significant animosity between the two, and they can no longer effectively co-parent. Nonetheless, it is abundantly clear from the trial record that the parties love their children, and they are both capable parents.

It is against this backdrop that the Court is charged with the difficult task of determining the custody of the children. For the reasons set forth more fully below, the Court finds that [*4]awarding Defendant sole legal custody of the children with equal parenting time with both parties is in the children's best interests.

"[T]he fundamental purpose of a Lincoln hearing is to ascertain a child's preferences and concerns" and "to corroborate information acquired through testimonial or documentary evidence adduced during the fact-finding hearing" (Christine TT. v Dino UU., 143 AD3d 1065, 1068 [3d Dept 2016]). In other words, "statements made by a child during a Lincoln hearing carry no independent evidentiary value and . . . such statements must remain confidential to protect children in custody proceedings from having to openly choose between parents or openly divulging intimate details of their respective parent/child relationships" (Matter of C.M. v Z.N., 230 AD3d 1409 [3d Dept 2024]). "The decision whether to conduct such a hearing is discretionary, but it is often the preferable course to conduct one" (Noble v Brown, 137 AD3d 1714, 1715 [4th Dept 2016]). "In determining whether such a hearing is warranted, the court must determine whether the in camera testimony of the child will on the whole benefit the child by obtaining for the Judge significant pieces of information he [or she] needs to make the soundest possible decision" (Brady J.S. v Darla A.B., 208 AD3d 1023, 1026 [4th Dept 2022]).

At the time that the trial of this action concluded in August 2025, the children were nine, eight, and six years old, respectively. Due to the children's relatively young ages as well as their disabilities, the Court declined to hold a Lincoln hearing given that it was unlikely to be productive. The AFC similarly believed a Lincoln hearing would not be beneficial for either the Court or the children (see Brandon E. v Kim E., 167 AD3d 1293, 1295 [3d Dept 2018] [no error in declining to hold Lincoln hearing where AFC opposed the hearing and the stress it would cause to child]). The Court further notes that neither party requested a hearing be conducted (see Olufsen v Plummer, 105 AD3d 1418 [4th Dept 2013] ["mother's further contention that the court erred in failing to hold a Lincoln hearing is not preserved for our review inasmuch as the mother did not request that the court conduct such a hearing"]).

"In a child custody proceeding, the first and paramount concern of the court is and must be the welfare and the interests of the child" (Verret v Verret, 37 AD3d 479, 479-480 [2d Dept 2007]). "Among the factors or circumstances to be considered in ascertaining the child's best interests are: (1) the continuity and stability of the existing custodial arrangement, including the relative fitness of the [relevant parties] and the length of time the present custodial arrangement has continued; (2) [the] quality of the child's home environment and that of the [party or parties] seeking custody; (3) the ability of each [party] to provide for the child's emotional and intellectual development; (4) the financial status and ability of each [party] to provide for the child; (5) the individual needs and expressed desires of the child; and (6) the need of the child to live with siblings" (Dinoff v Knechtel, 224 AD3d 1288, 1290 [4th Dept 2024]; see also Wagner v Wagner, 217 AD3d 1509, 1511 [4th Dept 2023]; Athoe v Goodman, 170 AD3d 1532 [4th Dept 2019]).

"The court must also consider the effect of domestic violence in determining the best interests of the children, but only when the allegations of domestic violence are proven by a preponderance of the evidence" (Williams v Williams, 78 AD3d 1256, 1257 [3d Dept 2010]; see also Hendrickson v Hendrickson, 147 AD3d 1522 [4th Dept 2017] [same]). Importantly, "[n]o one factor is determinative because the court must review the totality of the circumstances" (Matter of Marino v Marino, 90 AD3d 1694, 1695 [4th Dept 2011]; see also Inman v Coleman, 208 AD3d 1637 [4th Dept 2022]; Goudreau v Corvi, 197 AD3d 463 [2d Dept 2021]).

i. Maintaining Stability for the Children & the Home Environment

"Stability of the child's environment and a reluctance to uproot [the child] from familiar surroundings, quite properly is a relevant and important consideration where the custody dispute is between parents" (see Moorehead v Moorehead, 197 AD2d 517 [2d Dept 1993]). "In other words, the maintenance of the status quo is a positive value which, while not decisive in and of itself, is entitled to great weight" (id.)

The credible record evidence establishes that this factor does not favor one parent over the other because the parties currently share equal parenting time with their children, and each have safe and loving home environments. As noted above, a temporary custody order was entered on January 27, 2025, which gave Plaintiff primary residential custody of the children during the school year. (NYSCEF No. 75.) However, the Order directed that, beginning on June 27, 2025, the parties would enjoy equal parenting time on a week-on and week-off basis. Although a new school year began in the fall of 2025, the parties have continued to follow the week-on and week-off schedule, despite that Defendant lives in a different school district than the one that the children currently attend. Accordingly, continuing this schedule will offer stability and maintain the same routine that the children have become accustomed to since the interim order came into effect.

Regarding the parties' respective residences, the Court finds that both homes offer safe, healthy, and loving environments. Plaintiff currently resides in a townhome after moving out of the former marital residence. (Trial Tr. 01-17-25, at p. 5.) Plaintiff provided lengthy testimony about the importance of the children's routines and that they can become dysregulated when those routines are interrupted. (Trial Tr. 01-16-25, at p. 11-13; Trial Tr. 01-21-25, at pp. 79-81; Trial Tr. 01-22-25, at pp. 67-75, 81-84, 96-98; Trial Tr. 01-23-25, at pp. 162-65.) As such, Plaintiff has used visual schedules and choice boards to assist the children with keeping them on task and so they know what to expect on a day-to-day basis (see, e.g., Trial Tr. 01-15-25, at pp. 22, 29-30, 34-35; Trial Tr. 01-16-25, at p. 5).

Plaintiff also utilizes safety devices within her residence to keep the children secure (Trial Tr. 01-15-25, at pp. 23, 35-36, 38-40; Trial Tr. 01-22-25, at p. 93) due to, among other things, their tendency to elope occasionally from the home (Trial Tr. 01-15-25, at p. 23; Trial Tr. 01-17-25, at pp. 42-43). The children receive services in Plaintiff's home (Trial Tr. 01-16-25, at p. 15), have structured routines, and toys, etc., to keep them entertained (Trial Tr. 01-15-25, at pp. 29-46). Plaintiff credibly testified that the children can rely on her, she provides them with regular routines, and she makes sure their needs are met. (Trial Tr. 01-23-25, at pp. 183-84.) In sum, Plaintiff makes every effort to meet the children's needs and to ensure their health and safety while in her care.

Defendant provided a description of the former marital residence and the sleeping arrangements for the children. (Trial Tr. 08-06-25, at pp. 74-77.) S.S. has his own bedroom, [*5]while the girls share a bedroom with bunkbeds. (Id. at pp. 74-75.) Based on Defendant's description, the Court is confident that the children have plenty of space, toys, and necessities for their day-to-day lives. Although there were safety devices in the former marital residence when the parties lived together, Defendant removed those devices because he believes the children were unnecessarily drawn to and distracted by them. (Id., at pp. 55-56, 82.) According to Defendant, the children have not tried to elope from his home despite the lack of safety features. (Id. at p. 65.)

Defendant also described a reward system using Velcro tokens for when the children complete their chores and routines, such as taking a bath, brushing their teeth, etc. (Id. at pp. 77-83.) Defendant testified that he cooks for their children and knows their favorite foods (Id. at pp. 85-87.) When asked to compare his parenting style to Plaintiff's, Defendant testified that he is stricter because he wants to ensure that the children know the rules and are respectful. (Id. at pp. 91-92, 106-08.) According to Defendant, the children learn by following the rules because they are rewarded for their good behavior. (Trial Tr. 08-07-25, at pp. 57-58.) Based on this credible testimony, the Court finds that Defendant's residence offers the children a safe, healthy, and loving home environment.

ii. Relative Fitness, Financial Status, and Ability to Provide for the Children's Overall Well-Being

The parties both possess the necessary fitness to care for their children and, as such, the Court once again finds that this factor does not favor one parent over the other. Specifically, the trial evidence demonstrated that the parties love their children and will do what is necessary to ensure their health, safety, and overall well-being. Plaintiff testified about the numerous activities she schedules for the children, including gymnastics, swim lessons, and summer camps (see, e.g., Trial Tr. 01-21-25 at pp. 81-83; Trial Tr. 01-23-25 at pp. 174-75.) Plaintiff also arranges playdates with the children's friends and will bring them to places such as an aquarium, museum, or the zoo (see, e.g., Trial Tr. 01-21-25, at pp. 41-42; Trial Tr. 01-23-25 at pp. 174-75, 177.) Similarly, Defendant will bring the children to a museum, to go fishing, or to do other activities. (Trial Tr. 08-06-25, at pp. 93-94, 105-06.) Both parties also attend the same church with the children.

The trial evidence also demonstrated that Plaintiff is the point-of-contact for the children's school district, their service providers and that she mostly coordinates their care (see, e.g., Trial Tr. 01-16-25, at pp. 19-20; Trial Tr. 01-15-25, at pp. 29-46; Trial Tr. 01-22-25 at pp. 87-88). However, Defendant credibly testified that he has also worked with the children's care providers and has scheduled medical appointments as necessary. (Trial Tr. 08-06-25, at p. 73.) Defendant expressed frustration that he would like to be more involved with the children's care and education, but he is not always kept informed of the decisions being made in these areas. For example, Defendant admitted not having much knowledge of the children's 504 plans (id. at pp. 103-04), but that he also did not believe he had access to the children's school records (id. at pp. 34, 41; see also Trial Tr. 08-05-25, at pp. 30-31, 48). To be sure, the Court issued an Order providing Defendant with full access to his children's medical and educational records. (NYSCEF No. 39, at p. 4.) Nonetheless, Defendant appeared to be unaware of this Order and the Court found Defendant's frustration to be sincere. (Trial Tr. 08-07-25, at p. 49.)

Plaintiff expressed concern that Defendant does not agree with some of the children's diagnoses. (Trial Tr. 01-23-25, at pp. 192-93.) Defendant conceded that he does not believe S.S. has asthma but does not prohibit him from using an inhaler. (Trial Tr. 08-07-25, at pp. 10-11.) [*6]Defendant's respite provider, S.G., who is a licensed clinical social worker (Trial Tr. 08-05-25, at pp. 4-5), expressed skepticism about whether the children have autism and testified that Defendant had also questioned that diagnosis. (Id., at p. 64.) Nonetheless, there was no credible testimony that Defendant was preventing the children from receiving the services and care prescribed by their treatment providers or that he would disregard their recommendations in the future.^[FN3] Plaintiff's witnesses each spoke highly of her as a loving parent and effective advocate for her children. (Trial Tr. 08-04-25, at pp. 43-45, 69, 89-91, 99.) Likewise, S.G. spoke highly of Defendant as a parent and his ability to care for the children.

Plaintiff testified about her concerns for the children's safety when they are in Defendant's care, in part, because of Defendant's alleged history of motor vehicle accidents. (Trial Tr. 01-16-25, at p. 29.) Defendant was in an automobile accident with the children in April 2024 that resulted in significant injuries that have rendered Defendant disabled from work. (Trial Tr. 08-06-25, at p. 12.) The children also suffered injuries during this accident, including a broken arm. (Id. at p. 14.) However, the credible record evidence demonstrates that this accident was not due to any culpability on Defendant's part.^[FN4] Specifically, Defendant's unrefuted testimony was that he was operating his vehicle when vehicles ahead of him collided and sent debris into the roadway, which also struck his vehicle. (Id. at pp. 10-12.) Defendant testified that he and other nearby vehicles pulled over to the shoulder of the road near the guardrail. (Id.) Defendant activated his emergency lights, checked on his children to make sure they were safe, called 9-1-1 to notify emergency services of the accident, and exited his vehicle through the passenger side door. (Id.) Defendant's next recollection is waking up in the emergency room, presumably because he was struck by oncoming traffic after exiting his vehicle. (Id. at p. 11.)

Although Defendant acknowledged being involved in other motor vehicle accidents (Trial Tr. 08-07-25, at p. 39), no evidence was provided regarding the circumstances of same. Accordingly, the Court has no basis to conclude that Defendant is an unresponsible driver and that the children are unsafe while they are passengers in his vehicle. The Court therefore gives little weight to Plaintiff's concern.

Regarding the parties' financial status, both parties are unemployed due to various physical and medical conditions. Plaintiff was previously employed as a registered nurse for ten years, but she testified that she became disabled in 2013 and began receiving social security disability benefits in 2021. (Trial Tr. 01-15-25, at pp. 4-5; Trial Tr. 01-16-25, at pp. 45-46; Pl.'s Ex. 2.) Plaintiff also receives benefits under the supplemental nutrition assistance program ("SNAP"). (Trial Tr. 01-17-25, at p. 9.) Finally, the children receive derivative social security benefits, which Plaintiff uses for their necessities. (Trial Tr. 01-16-25, at p. 47, 51-52.) Defendant was previously employed as a state corrections officer, but he testified that he became [*7]disabled following his motor vehicle accident in April 2024. (Trial Tr. 08-06-25, at pp. 24-25; Trial Tr. 08-07-25, at pp. 65-68.) Defendant's unrebutted testimony was that he is unlikely to be able to return to his former employment. (Id.) Nonetheless, for the reasons discussed more fully below in relation to spousal maintenance and child support, Defendant's financial status is more secure than Plaintiff's.

iii. Domestic Violence

"Pursuant to Domestic Relations Law § 240(1)(a), in any action or proceeding concerning custody or parental access where domestic violence is alleged, the court must consider the effect of such domestic violence upon the best interests of the child along with all the other relevant factors when the allegations of domestic violence are proven by a preponderance of the evidence" (Scott v Thompson, 166 AD3d 627 [2d Dept 2018]; see also Bloom v Mancuso, 175 AD3d 924, 926 [4th Dept 2019] ["Where, as here, domestic violence is alleged, the court must consider the effect of such domestic violence upon the best interests of the child"]).

Here, Plaintiff made vague allegations of domestic violence against Defendant. Specifically, at different times during her testimony, Plaintiff stated that she sought help from Vera House "for the safety and well-being of not only myself, but the children." (Trial Tr. 01-16-25, at p. 29; see also Trial Tr. 01-21-25, at p. 12.) Plaintiff similarly testified that she will keep her physical distance from Defendant when they see each other. (Trial Tr. 01-21-25, at p. 85; Trial Tr. 01-23-25, at p. 180.) However, Plaintiff never explained the basis for her fear of Defendant, nor was there any testimony of specific instances of domestic violence between the parties.

To be sure, Plaintiff testified about an occasion in December 2024 when Defendant arrived at her residence unannounced with another individual—who Plaintiff was familiar with—to see the children. (Trial Tr. 01-21-25, at p. 102; Trial Tr. 08-06-25, at p. 45.) Plaintiff testified that this occurred during the evening hours and Defendant remained in his vehicle on the street outside of her residence where he used the telephone to contact the children because he wanted the children to come out and visit with him. (Trial Tr. 01-21-25, at pp. 102-07; Trial Tr. 01-23-25, at pp. 180-83.) Plaintiff further testified that she felt uncomfortable and contacted the police department and, upon arrival, officers interviewed her and Defendant. (Trial Tr. 01-22-25, at pp. 110-15; Trial Tr. 01-23-25, at p. 183.) Defendant left after speaking with law enforcement without further incident and there was no evidence that any similar events took place thereafter. (Trial Tr. 08-06-25, at pp. 44-47.) According to Defendant, he went to Plaintiff's residence because he had not seen the children for several months after his motor vehicle accident. (Id. at p. 44.) Plaintiff acknowledged that Defendant had messaged her before his arrival about his desire to see the children and his intent to stop by her residence, but Plaintiff had not seen the messages beforehand. (Trial Tr. 01-21-25, at p. 102.)

While the Court does not condone Defendant's decision to go to Plaintiff's residence uninvited, the Court finds that this incident insufficiently demonstrates the existence of domestic violence. Indeed, given the dearth of evidence to substantiate domestic violence, the Court is concerned that Plaintiff raised this issue in an attempt to gain a litigation advantage over Defendant. Nonetheless, the Court will not give any weight to this factor.

iv. Willingness to Foster a Relationship with the Other Parent

The Court finds that this factor weighs strongly in Defendant's favor because of the antipathy Plaintiff harbors for Defendant. Although Plaintiff testified that she supports the children having a meaningful relationship with Defendant (Trial Tr. 01-16-25, at pp. 15-17), her testimony was undermined by the fact that the children were withheld from Defendant for several months following his motor vehicle accident (Trial Tr. 08-06-25, at pp. 14-15; Trial Tr. 1-23-25, at pp. 139-145). Similarly, Plaintiff will not include Defendant in important events, such as the children's birthday parties (Trial Tr. 01-23-25, at p. 177) and, as discussed above, will keep her physical distance from Defendant for no apparent reason, which may cause the children to think that their father is unsafe. Moreover, Plaintiff could not describe any positive attributes about Defendant or his parenting ability. (Trial Tr. 01-23-25, at pp. 126-27.)

Conversely, Defendant spoke positively of Plaintiff as a parent while acknowledging that Plaintiff "hates [his] guts" for unknown reasons. (Trial Tr. 08-06-25, at pp. 108-09.) Defendant testified that it his hope that the parties can mend their relationship and work on their communication for the sake of their children and to be effective co-parents. (Id.) Plaintiff expressed no such desire. Indeed, Plaintiff's testimony as a whole left the Court with the impression that Plaintiff will keep Defendant at arm's length as well as marginalize and ostracize him whenever possible. This includes the willingness to make unsubstantiated claims of domestic violence against Defendant.

Plaintiff further demonstrated little, if any, interest in seeking Defendant's input or consultation regarding their children. Rather, Plaintiff's testimony demonstrated that, while she is an impressive organizer and effective in managing the children's schedules and behaviors, she wholeheartedly prefers to be singlehandedly in control. These concerns take on heightened significance by the prospect of Plaintiff and her paramour beginning to cohabitate with their newborn child (Trial Tr. 08-04-25, at p. 15), which could very well lead to further marginalization of Defendant from his children (see Bliss, on Behalf of Ach v Ach, 56 NY2d 995, 998 [1982] ["Very important . . . was the court's determination that if the father were to receive primary custody, he would endeavor to fully integrate the child into his separate family, significantly downplaying the role of the child's natural mother"]).

v. The Children's Expressed Desires and Need to Live with a Sibling

As stated above, the Court did not conduct a Lincoln hearing to ascertain the children's desires regarding their custodial arrangement. Even if a hearing had been conducted, the Court would not be at liberty to discuss the children's preferences. (Matter of C.M. v Z.N., 230 AD3d 1409 [3d Dept 2024]). Nonetheless, it is the AFC's position that awarding sole custody of the children to Defendant while maintaining the week-on/week-off visitation schedule is in the best interests of the children. (NYSCEF No. 86.) The Court affords this recommendation some weight (see Kozlowski v Mangialino, 36 AD3d 916, 917 [2d Dept 2007] [noting that recommendations of an AFC "are factors to be considered in making a custody determination and are entitled to some weight. However, they are not determinative and do not usurp the judgment of the trial judge"]). Finally, the Court finds that the children should remain together given that they were raised and have always lived with one another.

vi. Defendant Is Awarded Sole Legal and Physical Custody of the Children

After careful consideration of the above-noted factors, the Court finds that awarding Defendant sole legal custody of the children is in their best interests. In reaching this determination, the Court emphasizes that both parties have proven themselves to be loving, caring, and effective parents. However, the record evidence establishes that the parties are unable to co-parent their children, which makes joint custody untenable. Indeed, particularly troubling to the Court is that the parties' relationship has so vastly deteriorated that they cannot physically hand each other the children's medication. Rather, one party hands the medication to S.S. to give to the other when the children are being exchanged in a parking lot for parenting time. (Trial Tr. 01-17-25, at pp. 54-58; Trial Tr. 08-07-25, at pp. 11-14, 86-88.)

"Where, as here, the parents are unable to effectively and directly communicate with one another, sole legal custody is necessary, and our inquiry distills to which parent is better suited to care for the children's needs" (Richard CC. v Lacey DD., 230 AD3d 1389, 1390 [3d Dept 2024]; see also Thomas v Osborne, 51 AD3d 1064 [3d Dept 2008] ["given the parties' obvious antipathy for each other and their inability to effectively communicate and work together regarding the child, that joint custody is simply not feasible nor is it in the child's best interest"]; K.C. v N.C., 215 AD3d 1238, 1239 [4th Dept 2023] ["the obvious hostility' between the mother and the father makes joint custody inappropriate . . . although the mother and the father could sometimes effectively communicate with each other, most of their interactions were acrimonious"]; Benedict v Benedict, 169 AD3d 1522, 1523 [4th Dept 2019] [same]; Kakwaya v Twinamatsiko, 159 AD3d 1590 [4th Dept 2018] [sole custody to mother appropriate where "the deterioration of the parties' relationship and their inability to coparent renders . . . joint custody arrangement unworkable"]; Markis L. v Jacquelyn C., 189 AD3d 580, 581 [1st Dept 2020] [same]; Braiman v Braiman, 44 NY2d 584, 589-590 [1978] ["joint custody is encouraged primarily as a voluntary alternative for relatively stable, amicable parents behaving in mature civilized fashion"]).

As discussed above, the best interests' factors break almost evenly between the parties. However, the Court finds that Plaintiff is less willing to co-parent the children and is further concerned by Plaintiff's tendency to marginalize Defendant, whereas Defendant has demonstrated a willingness to foster the children's relationship with Plaintiff (see Hendrickson v Hendrickson, 147 AD3d 1522 [4th Dept 2017] ["The record supports the court's determination that both parents love and care for the child, but the mother is less willing to truly co-parent the child"]; see also Honsberger v Honsberger, 144 AD3d 1680 [4th Dept 2016]). In reaching this determination, the Court recognizes that Plaintiff has historically been the children's primary caregiver. However, "[t]he fact that the mother was the child's primary caretaker prior to the parties' separation is not determinative" (Owens v Pound, 145 AD3d 1643 [4th Dept 2016]).

Although Defendant is being awarded sole custody of the children, Defendant shall meaningfully communicate with Plaintiff on all non-emergency issues related to the children's health and education and reasonably consider Plaintiff's input, if any (see Thompson v Wood, 156 AD3d 1279, 1282 [3d Dept 2017]; Moore v Gonazalez, 134 AD3d 718, 721 [2d Dept 2015] ["together with the award of sole legal custody to the mother, the Family Court must include a provision in the new order of custody and visitation directing the mother to report to the father, in writing, any major decision she makes concerning the children's health, education, religious upbringing, and welfare"]). Plaintiff shall also continue to have equal access to the children's records—i.e., dental, medical, educational and other professional records—and service providers (see Sabrina B. v Jeffrey B., 179 AD3d 1339, 1342 [3d Dept 2020] ["Family Court balanced its [*8]grant of sole legal custody to the mother by specifically mandating that the mother solicit and consider the father's input on all medical, educational and religious decisions regarding the child's upbringing and provided him with continued access to the child's records and service providers"]).

"The guiding principle in fixing a visitation schedule is the best interests of the child, and it is well settled that the best interests of a child generally lie with a healthy, meaningful relationship with both parents" (Jorge JJ. v Erica II., 191 AD3d 1188 [3d Dept 2021]; Terramiggi v Tarolli, 151 AD3d 1670, 1672 [4th Dept 2017] ["[V]isitation issues are determined based on the best interests of the children . . . and . . . trial courts have broad discretion in fashioning a visitation schedule"]). "Unless [parenting time] is inimical to the children's welfare, the court is required to structure a schedule which results in frequent and regular access by the noncustodial parent" (Jessica HH. v Sean HH., 196 AD3d 750 [3d Dept 2021]). The Court must also "consider the type of parenting time warranted by the record evidence (e.g., therapeutic visitation, supervised parenting time, unsupervised parenting time, etc.), the amount, duration and location of such parenting time . . . and any other provisions that would develop and/or promote a healthy and meaningful relationship between the [mother] and the children (e.g., reasonable phone/video contact, written communication, etc.)" (Benjamin V. v Shantika W., 207 AD3d 1017, 1021-22 [3d Dept 2022]).

The Court finds that it is in the children's best interests to maintain the week-on/week-off parenting schedule that is currently in place because this will afford each party equal parenting time, and it is a schedule the children are already accustomed to (see Brett J. v Julie K., 209 AD3d 1141, 1144 [3d Dept 2022] [sole legal custody with equal parenting time appropriate]; Rutland v O'Brien, 143 AD3d 1060 [3d Dept 2016] [same]). Plaintiff appeared amenable to this schedule so long as the children's needs were being met, they were safe, etc., while they are not in her care. (Trial Tr. 01-21-25, at p. 91.) Similarly, Defendant testified that it is his preference to keep the week-on/week-off parenting schedule. (Trial Tr. 08-06-25, at p. 108.) Accordingly, the parties shall adhere to the following schedule:

a) Commencing January 2, 2026, the parties shall have the children for a one-week period (consisting of seven days) from Friday at 7:30 p.m. through the following Friday at 7:30 p.m. The parties shall exchange the children every Friday at 7:30 p.m. and those exchanges shall take place at the Byrne Dairy where exchanges have previously occurred or at another mutually agreed upon location.

b) Holiday parenting time, which shall take precedence over all regularly scheduled parenting time, shall be as follows:

(i) Easter: the father shall have the children in odd years and the mother shall have the children in even years. Parenting time shall commence at 6:00 PM on Saturday and conclude at 7:30 PM on Easter Sunday.

(ii) Memorial Day: the mother shall have the children in odd years and the father shall have the children in even years. Parenting time shall commence at 9:00 AM on Memorial Day and conclude at 7:30 PM.

(iii) July 4th: the father shall have the children in odd years and the mother shall have the [*9]children in even years. Parenting time shall commence on July 4th at 9:00 AM and conclude at 7:30 PM the following day.

(iv) Labor Day: the mother shall have the children in odd years and the father shall have the children in even years. Parenting time shall begin at 9:00 AM and end at 7:30 PM.

(v) Halloween: the father shall have the children on odd years and the mother shall have the children during even years. This period of time shall commence upon the conclusion of the school day until 8:30 PM.

(vi) Thanksgiving Day: the mother shall have the children in even years and the father shall have the children in odd years. Parenting time shall begin at 4:30 PM the day before Thanksgiving and conclude on the day after Thanksgiving at 7:30 PM.

(vii) Christmas Eve: the father shall have the children from 12:00 PM Christmas Eve until 12:00 PM on Christmas Day in even years and the mother shall have the children in odd years.

(viii) Christmas Day: the mother shall have the children in even years from Christmas Day at 12:00 PM until 7:30 PM on December 26th and the father have the children in odd years.

(ix) New Year's Eve: the father shall have the children in odd years from December 31st at 4:30 PM until January 1st at 7:30 PM, said time will be with the mother in even years.

(x) Mother's Day: the mother shall have the children on Mother's Day each year from 9:00 AM until 7:30 PM.

(xi) Father's Day: the father shall have the children on Father's Day each year from 9:00 a.m. until 7:30 PM.

a) The children's respective birthdays and the parent's birthdays shall be celebrated at a time during which the parent already has parenting time.

b) Each party is to maintain a working text-capable cellular telephone to facilitate communication.

c) The children are not to be utilized to carry messages between the parents.

d) In the event either parent intends to remove the children from Onondaga County for a period of three consecutive days or more they will inform the other party, in writing via text message, seven days in advance of the location of the child and general itinerary.

e) The father/mother shall have the right to reasonable telephone access with the child when they are in the others care and custody, which includes FaceTime.

f) Both parties shall keep the other appraised of any illness, accident, or other circumstances seriously affecting the health or general welfare of the children, and each shall promptly notify the other of same.

g) In the event any of the children are prescribed medication, both parties shall inform the other parent directly of the prescription, its purpose, and how the medication is to be administered.

h) Neither party shall make any verbal or written disparaging remarks about the other, nor allow any third party to do so while in the presence of the children or in a manner which could be accessible to the children including but not limited to social media posts.

i) Each parent shall have an affirmative obligation to ensure that the children are not [*10]subject or exposed to any domestic violence or hostile environment and shall remove the children from this type of situation should it arise.

j) All other parenting time shall occur as mutually agreed upon by the parties along with an exchange location other than the one designated herein.

k) Both parties shall have unfettered access to all medical providers for the children, including but not limited to medical, dental, orthodonture, and psychological services. The Judgment of Divorce shall serve as a release for said purposes and if additional releases are needed the parents will cooperate and sign those releases to effectuate same.

l) Both parties shall have unfettered access to all educational personnel and records for the children and the Judgment of Divorce shall serve as a release for same.

"In any matrimonial action, the court, upon application by a party, shall make its award for post-divorce maintenance pursuant to the guidelines set forth in [Domestic Relations Law § 236(B)(6)]. The court shall order the post-divorce maintenance obligation up to the income cap in accordance with the statutory formula, unless the court finds that the post-divorce maintenance guideline obligation is unjust or inappropriate, which finding shall be based upon consideration of any one or more of the specifically enumerated factors set forth in the statute" (Westbrook v Westbrook, 212 AD3d 1014, 1017 [3d Dept 2023]). "The amount and duration of a maintenance award, if any, are a matter within the sound discretion of Supreme Court, and the award will not be disturbed so long as the statutory factors and the parties' predivorce standard of living were properly considered" (Hughes v. Hughes, 198 AD3d 1170, 1173 [3d Dept 2021]). "Although the court need not articulate every factor it considers, it must provide a reasoned analysis of the factors it ultimately relies upon in determining maintenance" (King v King, 202 AD3d 1383, 1384 [3d Dept 2022]).

"The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting" (Fishman v Fishman, 186 AD3d 1199, 1200 [2d Dept 2020]). Notably, in determining a maintenance award, "the court need not rely on the parties' representations of their respective finances, but may exercise its discretion by imputing income based upon such factors as [a] party's education, qualifications, employment history, past income, and demonstrated earning potential" (King, supra, 202 AD3d at 1384-85; accord Anastasi v Anastasi, 207 AD3d 1131, 1132 [4th Dept 2022]).

Plaintiff testified that she has a bachelor's degree in nursing (Trial Tr. 01-14-25, at p. 4) and was previously employed as a registered nurse at SUNY Upstate Medical University for approximately 10 years but ceased this employment in October 2013 after becoming disabled (Trial Tr. 01-15-25, at pp. 4-5; Trial Tr. 01-16-25, at pp. 45-46). According to Plaintiff, her disability consists of several autoimmune related conditions, such as lupus, rheumatoid arthritis, and ankylosing spondylitis. (Trial Tr. 01-16-25, at p. 45; Trial Tr. 01-21-25, at pp. 5-10, 22, 53-57.) In addition, Plaintiff testified that she suffers from depression, anxiety, post-traumatic stress disorder, chronic pain, and asthma. (Id.) Nonetheless, while the parties lived together, [*11]Plaintiff testified that she swam regularly and also volunteered at Jowonio, which is a school for children with special needs. (Trial Tr. 01-17-25, at pp. 23-24, 46-47.)

Plaintiff began receiving social security disability ("SSDI") benefits in 2021. (Trial Tr. 01-16-25, at pp. 45-46.) At the time she was awarded these benefits, Plaintiff also received $36,000.00 in back payments. (Id.) Plaintiff testified that she received $29,180.40 in SSDI benefits in 2024 and that these benefits are her sole source of income (Trial Tr. 01-16-25, at p. 51; Pl.'s Ex. 2.) The children also each receive approximately $415/month in derivative benefits, which Plaintiff uses for their expenses. (Trial Tr. 01-16-25, at pp. 51-52; Trial Tr. 01-17-25, at pp. 27-28.) Finally, Plaintiff also receives $38/month in SNAP benefits and a portion of her housing is subsidized by the Syracuse Housing Authority. (Trial Tr. 01-17-25, at pp. 6, 9.)

The Court notes that a "decision of the Social Security Administration may serve as some evidence of a disability, but it is not prima facie evidence thereof" (Knope v Knope, 103 AD3d 1256, 1257 [4th Dept 2013]; see also Kaye v Hall, 231 AD3d 1504 [4th Dept 2024]; Marrale v Marrale, 44 AD3d 773, 775 [2d Dept 2007] ["even though the father was receiving Social Security disability benefits, the SSA determination that he was disabled and entitled to disability benefits does not preclude a Family Court finding that he was capable of work"]). Here, Plaintiff did not provide any competent medical evidence in support of her contention that her disabilities render her unable to work (see Hwang v Tam, 158 AD3d 1216, 1217-18 [4th Dept 2018] ["The fact that the father was receiving Social Security benefits does not preclude a finding that he was capable of working where, as here, his claimed inability to work was not supported by the requisite medical evidence"]; Gray v Gray, 52 AD3d 1287 [4th Dept 2008] [same]).

However, Defendant did not dispute that Plaintiff is disabled and/or that she has been diagnosed with the above-noted medical conditions (see Anastasi v Anastasi, 207 AD3d 1131 [4th Dept 2022] ["Under the circumstances, and considering that defendant never disputed plaintiff's diagnosis and medical condition, plaintiff was not required to call an expert medical witness at trial to establish her inability to work."]; Myers v Myers, 118 AD3d 1315, 1316 [4th Dept 2014]). Moreover, the Court observed that Plaintiff was in discomfort during the trial due to the prolonged amount of sitting required each day. The Court gave Plaintiff several opportunities to take breaks, stand-up and walk around to ease her discomfort. Given the Court's observations of Plaintiff and that her disability was not in dispute, the Court credits Plaintiff's testimony that she is unable to work.

Defendant requests that the Court utilize $42,396.00 as Plaintiff's gross income (NYSCEF No. 82) because this is the amount Plaintiff listed in her Statement of Net Worth, which consists of her SSDI benefits and the derivative social security benefits she receives on behalf of the children (NYSCEF No. 37, at p. 8). The children's social security benefits, however, are their property and are not to be considered until "after the presumptively correct amount of basic child support has been calculated and only for the purpose of determining if the amount is unjust or inappropriate" (Weymouth v Mullin, 42 AD3d 681 [3d Dept 2007]; accord Vrooman v Vrooman, 244 AD2d 122, 125 [3d Dept 1998]; see also Maliah-Dupass v Dupass, 239 AD3d 960, 963 [2d Dept 2025] ["the Supreme Court properly refused to credit the defendant for social security benefits that the children received due to his disability"]; McDonald v McDonald, 262 AD2d 1028 [4th Dept 1999] [child's derivative social security benefits are the property of the child]). Accordingly, the Court will not credit Plaintiff with the children's derivative benefits for the purpose of making spousal maintenance calculations.

As noted above, Plaintiff receives $38.00/month, or $456.00/year, in SNAP benefits, which shall be imputed to her gross income (see Lattuca v Lattuca, 129 AD3d 1683, 1684 [4th Dept 2015] [error "in failing to include the value of plaintiff's food stamps in her yearly income for purposes of calculating her child support obligation"]). Therefore, the Court finds that Plaintiff has an annual gross income of $29,636.40.^[FN5]

Plaintiff requests that $68,102.00, which is the income listed in Defendant's 2024 federal tax return (Pl.'s Ex. 4; Trial Tr. 08-07-25, at p. 30), be utilized for support calculation purposes. (NYSCEF No. 84, at p. 4.) Conversely, Defendant requests that $56,795.00, which is the income from his 2023 federal tax return, be utilized for these calculations. (NYSCEF No. 82.) The Court finds that neither income is appropriate under the circumstances and will instead impute Defendant to full-time minimum wage, i.e., $32,240.00.

The Court finds this income is appropriate given the unrebutted testimony regarding Defendant's recent motor vehicle accident and the extensive injuries he suffered as a result. Defendant testified that he was employed as a corrections officer with the NYS Department of Corrections and Community Supervision for approximately 9 years. (Trial Tr. 08-06-25, at p. 4.) Before this employment, Defendant obtained an associate's degree in criminal justice from SUNY Morrisville. (Id. at pp. 25-26.) Following his accident, Defendant was unable to return to work and received short- and long-term disability benefits, no-fault insurance, and AFLAC. (Id., at pp. 20-22; Trial Tr. 08-07-25, at p. 31.) However, Defendant was permitted to return to work in April 2025 for two months to perform light duty work in the mailroom so he could maintain his health insurance policy. (Id. at pp. 22-23; Trial Tr. 08-07-25, at pp. 66-67.)

In addition to the Court's personal observation of Defendant in the courtroom, Defendant credibly described the injuries he suffered after his accident and, after consultation with his medical providers, Defendant stated that it is unlikely he will be able to return to his former position. (Trial Tr. 08-06-25, at p. 24-25; Trial Tr. 08-07-25, at pp. 41-45, 65-68.) Nonetheless, Defendant described his condition as "good" and can ambulate without assistance, which suggests that Defendant will be able to become employed in some capacity. (Trial Tr. 08-07-25, at p. 42.) Indeed, Defendant testified that he believes he would eventually be able to perform light duty work but "not at this moment." (Id. at p. 68.)

As discussed above, competent medical evidence is generally required to establish that a person has a disability and/or is unable to work. However, the Court credits Defendant's unrebutted testimony that he will not be able to return to his former position due to his injuries and is unlikely to have the same earning capacity in the foreseeable future (see Smith v Smith, 91 AD3d 1083 [3d Dept 2012] [downward deviation appropriate where Supreme Court "credited the father's testimony that he is no longer able to work full time at his own practice, cannot afford to hire another person to assist him in his practice and is not employable at another practice because of his condition"]; Battinelli v Battinelli, 174 AD2d 503 [1st Dept 1991] ["General testimony by the wife as to the disabilities she suffers as a result of her age and [*12]medical condition was properly admitted since the effect of these conditions on the wife's ability to work is readily apparent without the necessity of expert testimony"]; accord Knope v Knope, 103 AD3d 1256 [4th Dept 2013]).

Accordingly, while the Court does not find that Defendant is completely disabled, his earning capacity has diminished due to his injuries and, as such, the Court finds that imputing Defendant to full-time minimum wage is just and appropriate under the circumstances (see Royal v Royal, 239 AD3d 752 [2d Dept 2025] [inappropriate to utilize father's federal income tax return to calculate his support obligations where father sustained an injury at work and during two subsequent car accidents that resulted in him being laid off from work and receiving public assistance]). Based on the respective incomes of the parties (i.e., $29,636.40 for Plaintiff and $32,240.00 for Defendant), the guideline maintenance amount is $0.00 per month. The Court finds the guideline maintenance to be just and appropriate.

The parties are responsible for the support of their three children—S.S., O.S., and A.S.—until they reach the age of twenty-one years old (see DRL § 240 [1-b][b][2]) or become emancipated (see Cedeno v Knowlton, 98 AD3d 1257 [4th Dept 2012] ["A parent is obligated to support his or her child until the age of 21 unless the child becomes emancipated, which occurs once the child becomes economically independent through employment and is self-supporting"]). The Child Support Standards Act ("CSSA") sets forth the method by which the "presumptively correct" amount of child support can be calculated (see DRL § 240). A three-step process is required by the CSSA. The first step requires a calculation of the "combined parental income" up to a statutory cap, which is currently $183,000.00. The second step requires the Court to multiply the combined parental income by a specified percentage based upon the number of children. The third step becomes necessary only when the combined parental income exceeds the statutory cap. Once the statutory percentage is applied to the parties' combined income, and each party's pro rata contribution to that amount is determined, the resulting sum is presumptively the correct amount of child support.

"Basic child support, when calculated properly, is presumed to meet all the child's basic needs. Thus, the expenses of leisure, extracurricular and enrichment activities, such as after school clubs, sporting activities, etc., are usually not awarded separately, but are encompassed within the basic child support award" (Michael J.D. v Carolina E.P., 138 AD3d 151, 153-54 [1st Dept 2016]). "It is well established that shared custody arrangements do not alter the scope and methodology of the CSSA. . . [I]n instances where the parents' custodial arrangement splits the child's physical custody so that neither can be said to have physical custody of the child for a majority of the time, the parent having the greater pro rata share of the child support obligation should be identified as the noncustodial parent for the purpose of child support regardless of the labels employed by the parties" (Rapp v Horbett, 174 AD3d 1315, 1316 [4th Dept 2019] [alterations and internal citations omitted]).

For purposes of these calculations, the Court notes that it has already determined that Plaintiff has a gross income of $29,636.40 and Defendant has an imputed income of $32,240.00. Based on the parties' respective incomes, the Court makes the following calculations as dictated by the CSSA:

Based on the foregoing calculations, Defendant's pro rata share (52.1%) of child support is $9,340.60/year or $779.13/month for the support of three children. The Court finds this support obligation to be just and appropriate, which shall be satisfied via an income execution through the Onondaga County Child Support Collections Unit. Both parties shall promptly notify the Onondaga County Child Support Collection Unit of any change in address or in employment. The parties shall execute any necessary documentation to implement said collection services.

Plaintiff requested an award of child support in her Complaint, which was filed on March 20, 2023 (NYSCEF No. 1). "A party's maintenance and child support obligations commence, and are retroactive to, the date the applications for maintenance and child support were first made" (DiLascio v DiLascio, 170 AD3d 804, 808 [2d Dept 2019]; see DRL § 236[B][7][a]). Therefore, Defendant's child support obligation is retroactive to March 2023. "In calculating arrears, the court must take into account any temporary maintenance and child support that has been paid" (Kelly v Kelly, 19 AD3d 1104, 1107 [4th Dept 2005]; see also DRL § 236[B][7][a]; Sinnott v Sinnott, 194 AD3d 868, 878 [2d Dept 2021]; Myers v Myers, 87 AD3d 1393, 1394-95 [4th Dept 2011]).

Here, Defendant conceded that he has not paid any temporary child support to Plaintiff. [*14](Trial Tr. 08-07-25, at p. 30; Trial Tr. 01-16-25, at p. 53.) Therefore, the Onondaga County Child Support Collection Unit is directed to calculate Plaintiff's child support arrears from April 1, 2023, until January 1, 2026.

The Child Support Standards Act allows for the payment of certain categories of enumerated add on expenses, prorated according to the parents' relative incomes. These add-on expenses include (1) child care expenses when a custodial parent is working, looking for work and/or engaged in an educational or training program that will lead to employment (DRL § 240[1-b][c][4],[6]); (2) health insurance and unreimbursed medical expenses (DRL § 240[1-b][c][5]); and (3) educational expenses (DRL § 240[1—b][7]). "With respect to unreimbursed health care expenses, pursuant to Domestic Relations Law § 240 (1-b)(c)(5)(v), each parent's share of unreimbursed health care expenses is to be prorated in the same proportion as each parent's income is to the combined parental income" (C.M. v E.M., 2023 WL 8360025, at * 17; 2023 NY Slip Op 23369 [Sup Ct Nassau Cnty Nov. 28, 2023]; see also DRL § 240 [1-b][c][5][ii]["the cost of providing health insurance benefits shall be prorated between the parties in the same proportion as each parent's income is to the combined parental income"]; Wagner v Wagner, 217 AD3d 1509, 1512 [4th Dept 2023]).

The Court finds it appropriate for Defendant to maintain health, dental and vision insurance coverage for the benefit of the parties' three children for as long as he remains eligible for such coverage through Defendant's employer sponsored plan (see DRL § 240 [1-b][c][5]).^[FN6] Plaintiff shall pay to the Defendant 47.9% of any cost to Defendant to insure the children that is above the cost to insure Defendant alone (DRL § 240 [1-b][c][5][ii]["the cost of providing health insurance benefits shall be prorated between the parties in the same proportion as each parent's income is to the combined parental income"]). Plaintiff shall pay this cost within thirty (30) days of receiving documentary evidence from Defendant that establishes the cost of the policy.

Similarly, the parties shall also contribute their pro rata share for any unreimbursed health care expenses for the children's care (DRL § 240 [1-b][c][5][v] ["the court shall pro rate each parent's share of reasonable health care expenses not reimbursed or paid by insurance . . . in the same proportion as each parent's income is to the combined parental income"]). Accordingly, Plaintiff shall pay 47.9% and Defendant shall pay 52.1% of unreimbursed healthcare expenses. The party paying the provider directly shall present a copy of the receipt or bill to the non-paying party within thirty (30) days, and the non-paying party shall reimburse the paying party their share within thirty (30) days of receipt.

Defendant requests that he be permitted to claim the parties' children as dependents on his income tax return. (Trial Tr. 08-07-25, at pp. 30-31.) Plaintiff states that she is willing to allow Defendant to claim the children as dependents so long as he remains current with his child support payments. (NYSCEF No. 84, at p. 5.) Moreover, Plaintiff is willing to execute the [*15]necessary documents to allow Defendant to receive the child tax credit for 2023 and 2024 should he be required to pay child support arrears. (Id.)

"Where, as here, the noncustodial parent is contributing all, or the majority of, the financial support of the children, the court may determine that the noncustodial parent is entitled to declare the children as dependents on his or her income tax returns" (Jurgielewicz v Jurgielewicz, 31 AD3d 639 [2d Dept 2006]; accord Miller v Miller, 216 AD3d 1154, 1157 [2d Dept 2023]; Burns v Burns, 193 AD2d 1104 [4th Dept 1993] ["defendant is paying support to meet all of the child's financial needs. Thus, we conclude that he is entitled to claim the child as an exemption for income tax purposes"]; Rich-Wolfe v Wolfe, 83 AD3d 1359 [3d Dept 2011]).

As discussed above, the Court has awarded Plaintiff child support, including arrears, and, as such, Defendant will be providing substantial financial support to the parties' children. Moreover, where both parents share equal time with the child, the U.S. Internal Revenue Service treats the parent with the higher adjusted gross income as the custodial parent for purposes of the Child Tax Credit (see IRS, Publication 501 [2024], Dependents, Standard Deduction, and Filing Information ["Equal number of nights. If the child lived with each parent for an equal number of nights during the year, the custodial parent is the parent with the higher AGI"]). Accordingly, beginning with the 2024 tax year, Defendant shall be permitted to claim the parties' children on his income tax return each year so long as he remains current with his child support obligations (see Rooney v Rooney, 92 AD3d 1294 [4th Dept 2012] [Defendant "should be allowed to claim the parties' children as dependents for tax purposes, provided that he remains current in his child support and maintenance obligations"]).

Plaintiff shall execute the necessary paperwork, if any, to allow Defendant to claim the child tax credit (see Agnello v Payne, 26 AD3d 837 [4th Dept 2006] [Supreme Court erred in failing "to direct plaintiff to execute the necessary forms to permit defendant to claim the dependency exemption"]; Christmann v Christmann, 294 AD2d 527 [2d Dept 2002]).

"A marriage has been characterized, among other things, as an economic partnership, which upon its dissolution necessitates a winding up of the parties' economic affairs and a severance of their economic ties by an equitable distribution of the marital assets" (Diliberto v Diliberto, 230 AD3d 637, 641 [2d Dept 2024]). A trial court has broad discretion in deciding what is equitable under all of the circumstances in determining a distribution of assets (see Mahoney-Buntzman v Buntzman, 12 NY3d 415 [2009]). "Equitable distribution law does not mandate an equal division of marital property. The equitable distribution of marital assets must be based on the circumstances of the particular case and the consideration of a number of statutory factors" (Scaramucci v Scaramucci, 140 AD3d 848, 849 [2d Dept 2016]).

Those statutory factors include (1) the income and property of each party at the time of marriage, and at the time of the commencement of the action; (2) the duration of the marriage and the age and health of both parties; (3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects; (4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution; (5) the loss of health insurance benefits upon dissolution of the marriage; (6) any award of maintenance under subdivision six of this part; (7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage [*16]earner and homemaker, and to the career or career potential of the other party; (8) the liquid or non-liquid character of all marital property; (9) the probable future financial circumstances of each party; (10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party; (11) the tax consequences to each party; (12) the wasteful dissipation of assets by either spouse; (13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (14) whether either party has committed an act or acts of domestic violence as defined by Social Services Law § 459(a)(1) against the other party and the nature, extent, duration and impact of such act or acts; (15) in awarding possession of companion animals as defined in Agriculture and Markets Law § 350(5), the Court shall consider the best interest of the animal; and (16) any other factor which the court shall expressly find to be just and proper" (DRL § 236[B][5][d]).

"Although the statute requires a court to consider all the factors in making its determination, it does not impose a requirement to engage in a point-by-point catechistic discussion of each and every one of them" (Sykes v Sykes, 43 Misc 3d 1220[A], *4; 2014 NY Slip Op 50731[U] [Sup Ct NY Cnty 2014]). Here, there was no evidence of any wasteful dissipation, companion animals, or business assets. The remaining factors have been addressed above in relation to the Court's custody/support determinations and below.

Defendant currently resides in the former marital residence located in Syracuse, New York. (Trial Tr. 08-06-25, at p. 15.) The parties purchased this residence during their marriage, but the title and mortgage are solely in Defendant's name. (Id. at p. 29; Trial Tr. 01-16-25, at pp. 29-31.) Plaintiff testified that she liquidated her retirement account and used some of the funds to assist with the down payment for the residence as well as to make repairs once the parties had moved in. (Trial Tr. 01-16-25, at pp. 31-32.) Plaintiff further testified that Defendant used funds from one of his retirement accounts to assist with purchasing the home. (Id.) Defendant testified that he used approximately $4,000.00 from his deferred compensation account for the downpayment on the residence and the balance was rolled into the closing costs. (Trial Tr. 08-06-25, at p. 115.) Defendant testified that Plaintiff did not use any funds from her retirement account to contribute towards the downpayment. (Id.)

The parties appear to agree that an appraisal of the home was completed on October 10, 2023, and the appraised value was between $180,000 and $185,000. However, the appraisal report was not offered into evidence at trial. In any event, even if the appraisal report had been admitted into evidence, the report would have been of limited value given that it was prepared more than a year before trial commenced in January 2025 (see Jocoy v Jocoy, 217 AD3d 1588, 1589 [4th Dept 2023] ["As a general rule, the value of the marital residence should be fixed as of the time of trial"]). Plaintiff has requested that she be awarded her marital share of the equity in the residence while Defendant has requested that he be allowed to keep the former marital residence with no distribution to Plaintiff. (Trial Tr. 01-16-25, at p. 35; Trial Tr. 08-06-25, at pp. 115-16; Trial Tr. 08-07-25, at pp. 70-74.)

Marital property is defined as "all property acquired by either or both spouses during the [*17]marriage and before the execution of a separation agreement or the commencement of a matrimonial action[.]" (DRL § 236[B][1][c]). The burden rests with the titled spouse to rebut the presumption of marital property (see DeJesus v DeJesus, 90 NY2d 643, 652 [1997] ["we must be guided by the statutory presumption that all property, unless clearly separate, is deemed marital property and must further recognize the titled spouse's burden to rebut that presumption"]). "[M]arital property should be construed broadly in order to give effect to the economic partnership concept of the marriage relationship. By contrast, separate property—denoted as an exception to marital property—should be construed narrowly" (Fields v Fields, 15 NY3d 158, 162-63 [2010]).

Here, in addition to the $4,000.00 allegedly used as a downpayment for the marital residence, Defendant's post-trial memorandum requests that he be credited for payments he made to complete repairs in the house during the parties' marriage.^[FN7] (NYSCEF No. 81, at p. 2.) However, no evidence regarding these repairs was introduced at trial, nor has any documentary evidence been submitted to substantiate Defendant's claims that the monies allegedly used for the downpayment and/or the repairs were his separate property (see Iwasykiw v Starks, 179 AD3d 1485, 1486 [4th Dept 2020] ["A party asserting a separate property claim must trace the source of the funds with sufficient particularity to rebut the presumption that they were marital property"]; Bloom v Hilpert, 222 AD3d 574 [1st Dept 2023] ["it was the husband's burden to show that he used separate property to acquire this asset. However, the record contains no documentation supporting this claim. The husband's unsupported testimony is insufficient to meet his burden."]; Scully v Scully, 104 AD3d 1137, 1138 [4th Dept 2013]). Defendant's request for a separate property credit is therefore denied.

ii. Principal Paydown of the Mortgage

Ordinarily, Defendant would be entitled to a credit for the paydown of the mortgage principal and other costs made post-commencement (see Cuomo v Moss, 199 AD3d 635 [2d Dept 2021]; Gargiulo v Gargiulo, 183 AD3d 803 [2d Dept 2020]; Brinkmann v. Brinkmann, 152 AD3d 637, 639 [2d Dept 2017]; Le v Le, 82 AD3d 845 [2d Dept 2011]; Walters v Walters, 252 AD2d 775, 776 [3d Dept 1998] [credits for mortgage payments made in lieu of maintenance]). However, once again, Defendant failed to provide any current documentary evidence to support his request. Rather, Defendant submitted two mortgage statements from March and April of 2023. (Def.'s Exs. 4-5.) These statements indicate a monthly mortgage payment, which includes escrowed taxes, of $1,113.01. As of April 2023, the principal balance on the mortgage was $103,879.86. (Def.'s Ex. 5.) Given the lapse of time, these mortgage statements are not probative. Moreover, no testimony or evidence was provided as to whether the mortgage is current and whether Defendant has made 100% of the payments since the date of commencement (see Kao v Bonalle, 214 AD3d 922, 925 [2d Dept 2023] ["Supreme Court properly awarded each party 50% of the net proceeds of the sale of the Ohio condominium" [*18]where "defendant failed to produce evidence supporting his claim that he paid 100% of the carrying costs of the condominium."]). Defendant's request for a paydown credit is therefore denied.

iii. The Former Marital Residence Must Be Sold

"Absent unusual or extenuating circumstances, the sale of the marital residence should be ordered at the time of the divorce" (Wojtowicz v Wojtowicz, 171 AD2d 1073, 1074 [4th Dept 1991]; see also Chapin v Chapin, 184 AD2d 1082 [4th Dept 1992] ["given the parties' financial situation, including the fact that the marital residence constitutes the parties' major marital asset, the immediate sale was justified"]; accord Church v Church, 169 AD2d 851, 853 [3d Dept 1991]; Tanner v Tanner, 107 AD2d 980, 982 [3d Dept 1985]; Barrett v Barrett, 175 AD3d 1067, 1068-69 [4th Dept 2019]).

Accordingly, the Court directs that both the marital residence shall be listed on the market for sale with a licensed real estate broker within forty-five (45) days from the date of entry of the judgment of divorce. Defendant shall select three commercial real estate brokers who operate in the Central New York region and immediately forward their contact information to Plaintiff. Plaintiff will have five (5) days after receiving this information to select one of those brokers to handle the sale for both properties and notify Defendant. If Plaintiff does not select a broker and notify Defendant within this time period, Defendant shall select the broker from that list of three.

The parties shall accept any bona fide purchase offer equal to 85% or more of the asking price (see Wallace v Wallace, 154 AD3d 1078, 1081 [3d Dept 2017]). The parties shall abide by the recommendation of the broker and shall not act in any manner to interfere with the sale so as to ensure that the property is sold for an appropriate price in a timely manner. If the former marital residence does not sell within sixty (60) days, the parties shall adjust the asking price as recommended by their broker. Upon receipt of an acceptable offer as provided herein, Defendant shall have the right of first refusal to bid and purchase the former marital residence (see Sprole v Sprole, 145 AD3d 1367, 1371 [3d Dept 2016] ["While Supreme Court's decision declined to permit the wife a 'buy-back option' in an amount less than the appraised value of the marital residence, nothing in the decision or judgment of divorce precludes her from purchasing the husband's interest in the home or making an offer to purchase the home for an amount less than the listing price"]; Markson v Markson, 139 AD2d 705, 706 [2d Dept. 1988] [holding that "nothing in the stipulation expressly precluded the defendant from participating in the bidding process" to purchase the marital residence]).

Upon the sale of the property, the gross proceeds shall first be applied to the discharge of the existing mortgage, if any, the payment of the broker commission, and the payment of usual and customary closing costs and adjustments. Thereafter, the net proceeds from the sale, if any, shall be shared equally by the parties. Should either party fail to comply with the directives regarding the sale of the house, then an application may be made to the Court for exclusive use and occupancy of the residence or a sheriff's deed requiring the Onondaga County Sheriff to convey the real property pursuant to CPLR § 5107.

"Expenses incurred prior to the commencement of an action for a divorce are marital debt to be equally shared by the parties upon an offer of proof that they represent marital expenses. Expenses incurred after the commencement of an action for a divorce are, in general, [*19]the responsibility of the party who incurred the debt. Where a party has paid the other party's share of what proves to be marital debt, reimbursement is required" (Epstein v Messner, 73 AD3d 843, 845 [2d Dept 2010]). "Where, however, the indebtedness is incurred by one party for his or her exclusive benefit or in pursuit of his or her separate interests, the obligation should remain that party's separate liability" (Wagner v Wagner, 136 AD3d 1335, 1336 [4th Dept 2016]). "The Supreme Court has broad discretion in allocating marital debt. In addition, liability for the payment of marital debt[ ] need not be equally apportioned but may be distributed in accordance with the [equitable distribution] factors set forth in Domestic Relations Law § 236(B)(5)(d)" (DiFiore v DiFiore, 87 AD3d 971, 974-75 [2d Dept 2011]).

Plaintiff testified that the parties do not have any joint debt. (Trial Tr. 01-16-25, at p. 38.) However, according to her statement of net worth, Plaintiff had medical debt in the amount of $2,477.50 as of the date of commencement. (NYSCEF No. 37, at p. 21.) Nonetheless, Plaintiff requested in her post-trial memorandum that each party be solely responsible for the debts held in his/her name. Defendant's statement of net worth does not list any debts, nor did he testify about any liabilities. Therefore, based on the foregoing, the parties shall be solely responsible for any debt held in his/her name.

The parties both testified that they no longer have any joint bank accounts. (Trial Tr. 01-16-25, at p. 37; Trial Tr. 08-06-25, at p. 100.) Plaintiff has requested that each party be permitted to keep their personal accounts without any distribution to the other party. (Trial Tr. 01-16-25, at p. 38; NYSCEF No. 84, at p. 8.) According to Plaintiff's statement of net worth, the following two bank accounts existed as of May 19, 2023: (1) joint account with M&T Bank (x 5210) with a balance of $1,171.00; and (2) an account held in Plaintiff's name only with M&T Bank (x 5368) with a balance of $6,279.00. (NYSCEF No. 37, at p. 9.) According to Defendant's statement of net worth (NYSCEF No. 10, at pp. 10-13), the following bank accounts existed as of the date of commencement:

No documentary evidence, such as bank statements, were offered and admitted during the trial of this matter to establish the date of commencement balances in any of these accounts. Defendant requests his marital share of Plaintiff's bank accounts. (NYSCEF No. 81, at p. 3.) However, as noted above, the balances provided by Plaintiff in her statement of net worth were as of May 19, 2023, which is several months after the date of commencement. Defendant did not provide any proof of the balances in these accounts as of date of commencement and, as such, his request is denied due to a failure of proof. Pursuant to Plaintiff's request, the Court [*20]finds it just and appropriate to award each party the accounts held in their sole names and the funds contained therein without any distribution to the other.

The parties testified that Plaintiff took certain household items with her when she moved out of the former marital residence. (Trial Tr. 08-06-25, at pp. 57-60, 62-63; Trial Tr. 01-16-25, at pp. 41-44; Trial Tr. 01-23-25, at pp. 128-29.) Plaintiff testified that there are items still at the former marital residence that she would like to retrieve and has provided a list of those items in her post-trial memorandum. (NYSCEF No. 84, at p. 6-7.) Defendant acknowledged that he sold some of the household furnishings after Plaintiff moved out. (Trial Tr. 08-06-25, at p. 64; Trial Tr. 08-07-25, at pp. 19-20.)

The Court can only distribute items when competent proof as to their value has been admitted. No proof regarding the value of any of the items in questions was offered and/or admitted during trial (see Iwasykiw v Starks, 179 AD3d 1485 [4th Dept 2020] ["Plaintiff presented no documentary evidence with respect to the value of the personal property that he contends must be equitably distributed. In the absence of proof of the value of the personal property, the court did not err in refusing to order its equitable distribution"]; R.I. v T.I., 60 Misc 3d 1226[A], at *19 [Sup Ct Kings County 2018] [Sunshine, J.] [defendant not entitled to equitable distribution of furnishings sold by plaintiff where defendant offered no proof regarding the items' value]). Accordingly, the Court does not have a sufficient basis to award equitable distribution of the parties' personal property.

Defendant has stated in his post-trial memorandum that he will make a good faith effort to make certain property available to Plaintiff for her retrieval and the Court trusts that Defendant will honor that offer. Otherwise, the parties shall be entitled to keep the items presently in their possession.

Plaintiff testified that she currently owns a 2023 Kia Carnival that she purchased in June 2022 and it is titled in her name. (Trial Tr. 01-16-25, at pp. 36-37.) Plaintiff used a portion of her SSDI retroactive pay to make a downpayment on this vehicle. (Id.) Plaintiff requests that she be allowed to keep this vehicle free from any claim by Defendant and, in exchange, she is willing to waive any claim to Defendant's vehicle. (Id.) Defendant testified that he owned a Kia Sportage at the date of commencement of this action but that it was totaled in the motor vehicle accident that occurred in April 2024. (Trial Tr. 08-06-25, at p. 99.) The loan on that vehicle was subsequently paid off. (Id.) It is unclear what vehicle Defendant currently owns because his statement of net worth pre-dates his accident and this information was not shared during the parties' trial. Nonetheless, Defendant testified that he is agreeable to Plaintiff's proposal to allow each party to keep their respective vehicles without any distribution of their equity. (Trial Tr. 08-07-25, at p. 75.)

Accordingly, the parties shall keep their respective vehicles and be solely responsible for any debt associated with them. The parties shall hold each other harmless from the same and be solely responsible for all costs involving insurance, registration fees, inspection fees, repairs, and [*21]any other costs associated with their respective vehicles.^[FN8]

"Pension and retirement benefits belonging to either spouse attributable to employment during the marriage constitute marital property subject to equitable distribution upon divorce" (Cuomo v Moss, 199 AD3d 635, 636 [2d Dept 2021]). "A retirement account opened by one spouse prior to marriage consists of marital property only with respect to the value of the contributions made during the marriage, or to the extent that an increase in market value is attributable to the other spouse" (Aggarwal v Aggarwal, 225 AD3d 1226, 1227 [4th Dept 2024]).

"The party seeking an equitable share of the other spouse's retirement accounts has the burden of establishing the existence and value of the accounts" (Iwasykiw v Starks, 179 AD3d 1485 [4th Dept 2020]). Nevertheless, the Appellate Division has also held that, where the existence of a retirement account has been established, value can later be determined through the acquisition of account statements (see Westbrook v Westbrook, 212 AD3d 1014, 1019 [3d Dept 2023] ["Although the valuation of the husband's 401(k) account is not entirely clear, we do find that the wife is entitled to her equitable share" and directing husband to obtain letter of valuation from his employer and then equally distributing the asset]; Burgio v Burgio, 278 AD2d 767, 770 [3d Dept 2000] ["Although [wife] offered no proof of the existence or value of plaintiff's pension," husband included his pension in his statement of net worth and "did not subsequently dispute the existence of this pension"]; accord Koeth v Koeth, 309 AD2d 786, 787 [2d Dept 2003]; Pratt v Pratt, 282 AD2d 941, 943 [3d Dept 2001]; Church v Church, 169 AD2d 851, 852 [3d Dept 1991]; Dawson v Dawson, 152 AD2d 717, 720 [2d Dept 1989]; Graepel v Graepel, 125 AD2d 447, 449 [2d Dept 1986]).

There is no dispute that Defendant has a pension through his employment with New York State as well as a deferred compensation account. (Trial Tr. 08-07-25, at pp. 75-77.) Defendant testified that he is opposed to Plaintiff receiving her marital share of these accounts, but his post-trial memorandum acknowledges that Plaintiff is entitled to her equitable share. Accordingly, in accordance with the Majauskas v Majauskas (61 NY2d 481 [1984]) formula, Defendant is hereby directed, upon his retirement, to pay Plaintiff 50% of the marital portion of his pension benefit without consideration of any outstanding loans, if any, at the time of retirement, which loans or any reduction in monthly pension payments as a result thereof, shall be allocated solely to Defendant's share.

The Domestic Relations Order ("DRO") shall utilize the formula of years of service during the parties' marriage (i.e., August 22, 2015 to March 20, 2023) as the numerator and the total service credit at the time of retirement as the denominator, multiplied by fifty percent. The parties' marital share of the other spouse's pension benefit shall not be reduced by any outstanding loans. Plaintiff shall prepare a DRO or a Qualified DRO, whichever is applicable, to [*22]be signed by the Court, on notice to Defendant, in accordance with this Decision. Any cost associated with preparing a DRO shall be borne by Plaintiff.

Similarly, with respect to Defendant's deferred compensation, Plaintiff is entitled to an equal share (i.e., 50%) of this account as of the date of commencement of this action, plus or minus market experience. No evidence was submitted that Defendant made pre-marital contributions to this account and his statement of net worth contains no information about when the account was opened or the value of the account on the parties' date of marriage. (NYSCEF No. 10, at pp. 14-15; see Antinora v Antinora, 125 AD3d 1336, 1340 [4th Dept 2015]). Therefore, Plaintiff shall prepare a DRO or a Qualified DRO, whichever is applicable, to be signed by the Court, on notice to Defendant, in accordance with this determination. Any cost associated with the preparation of a DRO shall be borne by Plaintiff. Defendant shall not take any loans against this asset that would impact Plaintiff's benefit.

Finally, there is no dispute that Plaintiff does not have any retirement assets. (Trial Tr. 01-16-25, at pp. 38-39.) Accordingly, there are no assets to distribute.

Plaintiff is entitled to a Judgment of Divorce on the ground of Domestic Relations Law §170 (7). Equitable distribution is awarded as stated above. The parties' remaining arguments, to the extent not specifically addressed herein, have been considered and found to be unavailing. All other requests for relief not specifically granted herein, are hereby denied. This Court refers all future matters, except equitable distribution, to the appropriate Family Court. All post-judgment proceedings shall be filed in the county in which a party resides. The parties shall execute all documents necessary to transfer title to real estate and to comply with any other distribution pursuant to this Court's decision. Either party may resume the use of any former surname. To the extent the parties had not been previously notified, the Court hereby notifies each party, in accordance with Domestic Relations Law § 255, that once the Judgment of Divorce is signed, he or she may or may not be eligible to be covered under the other party's health insurance plan, depending on the terms of the plan. Each party shall be responsible for his or her own health insurance coverage and may be entitled to purchase health insurance on his or her own through a Consolidated Omnibus Budget Reconciliation Act (COBRA) option, if available.

The foregoing shall constitute the Decision of this Court. Plaintiff's counsel is directed to prepare a Judgment of Divorce and submit the Judgment Roll within thirty (30) days of the date of this Decision.