Supreme Court, Westchester County

Decided on April 3, 2026

Index No. XXXXX

James L. Hyer, J.

[*1]

The following papers were considered in connection with Plaintiff's Order to Show Cause, dated November 14, 2025 (hereinafter "Motion Sequence No. 7"), seeking an Order:

1. Pursuant to CPLR §4403:

a. Confirming the Report of Special Referee [Redacted] dated October 7, 2025 in all respects except as to (a) the valuation date for the marital [Redacted] Business Interests, as defined in the accompanying Affirmation in Support, and (b) the denial of a 50% distribution of the marital seed funds used to capitalize G.V.S.;

b. Rejecting in part the Report of Special Referee [Redacted] dated October 7, 2025 to the extent that it recommends (a) valuing the marital [Redacted] Business Interests as of the 2018 commencement date, and (b) denying a 50% distribution of the marital seed funds used to capitalize G.V.S.;

c. Making new findings thereon and determining that the proper valuation date for the marital [Redacted] Business Interests is December 31, 2022, consistent with this Court's prior determination and the equities, and accordingly entering a 30% distributive award based on the 2022 valuation, with $2,000,000 payable within thirty (30) days after a Decision After Trial and the balance within one (1) year thereafter;

d. Making new findings thereon and awarding Plaintiff a distribution representing fifty percent (50%) of the marital seed funds used to capitalize G.V.S.;

e. Setting a briefing schedule as and for Plaintiff's post-trial counsel fee application in accordance with the Special Referee's recommendation; and

f. Awarding Plaintiff such other and further relief as the Court deems just and proper;

And in connection with the notice of motion of the Defendant, dated December 22, 2025, (hereinafter "Motion Sequence No. 8"), seeking the entry of an Order granting the following relief:

1. Rejecting in part the Report of Special Referee [Redacted], dated October 7, 2025 to the extent that it recommends: (a) awarding Plaintiff maintenance in the amount of $11,942.06 per month for a duration of six years; (b) determining that Plaintiff should not be responsible for any expert fees nor any of her attorneys' fees which have been paid by Defendant; and (c) awarding Plaintiff a distributive award of 30% of the value of Defendant's businesses, collectively known as G.V.S.;

2. Making new findings thereon and determining that Plaintiff should receive 20% of the 2018 valuation of G.V.S.;

3. Making new findings thereon and establishing a schedule directing Defendant to provide Plaintiff with her distributive award over the course of five years;

4. Making new findings thereon and awarding Defendant a credit representing half of the paydown of the principal balance of the mortgage on the marital residence, such credit being in the amount of $102,500;

5. Clarifying the Report's recommendation that Plaintiff be permitted to buyout Defendant's interest in the marital residence by establishing a time by which Plaintiff must refinance or assume the mortgage and/or a time by which the marital residence must be placed on the market for sale;

6. Granting Defendant leave to submit an application for a reallocation of attorneys' fees and expert fees; and,

7. Such other and further relief as the Court deems just and proper.

PAPERS DOC. NO.

Order to Show Cause/Counsel Affirmation/Plaintiff Affirmation/Exhibits 1-33 1-36

Notice of Motion [Cross Motion]/Affirmation in Support & in Opposition 37-38

Affirmation in Opposition [Cross Motion]/Exhibits 34-37 39-43FN1

Relevant Factual & Procedural Background

On May 11, 2018, this action was commenced with the Plaintiff's filing of a summons with notice (hereinafter "Summons"),FN2 which sought a judgment of divorce based on a dissolution of the parties' marriage pursuant to New York State Domestic Relations Law (hereinafter "DRL") § 170(7), being an irretrievable breakdown of the parties marriage for a period in excess of six months, and other ancillary relief. Moreover, the Summons included the following notices: (1) notice of automatic orders, (2) notice concerning continuation of health [*2]care coverage; and, (3) notice of guideline maintenance (hereinafter "Matrimonial Notices").FN3

On June 26, 2018, Plaintiff filed an acknowledgment of service by Defendant,FN4 which was signed on June 21, 2018, by [Redacted], Esq., being incoming counsel for Defendant in this matter.

On June 29, 2018, Plaintiff filed a request for judicial intervention, along with a request that this Court schedule a preliminary conference.FN5

On August 8, 2018, Plaintiff filed a complaint,FN6 which substantially asserted the same requests for relief within the Summons, and identified three children of the marriage, being J.B. (D.O.B.: XX/XX/XXXX); S.B. (D.O.B.: XX/XX/XXXX); and, A.B. (D.O.B. XX/XX/XXXX) (hereinafter collectively the "Children").FN7

On August 9, 2018, a preliminary conference orderFN8 was entered [J. Colangelo], setting forth initial discovery directives to the parties. Simultaneously, the Court entered a separate order confirming that grounds regarding the requested dissolution of the parties' marriage had been resolved (hereinafter "Grounds Stipulation"),FN9 being that both parties agreed to a dissolution of the parties' marriage pursuant to DRL § 170(7) based on an irretrievable breakdown of the parties' marriage for a period in excess of six months.

On March 7, 2023, a court notice was filed,FN10 directing that all parties appear for a status conference, after which time the undersigned has continuously presided over this matter.

On November 30, 2023, Plaintiff filed a note of issue and certificate of trial readiness.FN11

On March 5, 2025, the two youngest Children, being S.B. and A.B., turned 21 years-old, and this Court was not provided with any claims from either Plaintiff or Defendant that any of the three Children are disabled as defined by New York State Mental Hygiene Law § 1.03, which would implicate the need for this Court to assess the issue of adult dependent support pursuant to DRL § 240-D.

On June 20, 2025, a pre-trial conference was held wherein the parties presented the following executed documents, which were marked as court exhibits and subsequently filed on NYSCEF: (1) joint statement of proposed disposition, (hereinafter "Joint Statement of [*3]Disposition");FN12 (2) joint stipulation as to admissibility of exhibits (hereinafter "Stipulation of Exhibits");FN13 (3) stipulation of facts not in dispute (hereinafter "Stipulation of Facts");FN14 (4) plaintiff's witness list;FN15 and (5) defendant's witness list.FN16 Thereafter, the parties entered into a partial stipulation of settlement (hereinafter "Partial Financial Stipulation"),FN17 resolving some of the financial issues arising out of the requested dissolution of the parties' marriage, which was so-ordered by this Court the same date, reserving the remaining issues arising out of the requested dissolution of the parties' marriage to be determined at trial.

On June 25, 2025, the Court entered a hear and report order (hereinafter "Hear & Report Order"),FN18 which directed that Court Attorney-Referee [Redacted] Esq. (hereinafter the "Attorney-Referee") was to hear and report on all issues arising from the trial regarding the remaining issues in this matter, such trial to take place before the Attorney-Referee, commencing on July 7, 2025. Of note, this Court provided within the Hear & Report Order, an option for the parties to stipulate that the Attorney-Referee would hear and determine on all remaining issues arising from the subject trial, however the parties declined to stipulate to such condition.

Over the span of eight days, from July 7, 2025 through July 10, 2025; and, July 14, 2025 through July 17, 2025, a trial in this matter regarding all remaining issues arising out of the requested dissolution of the parties marriage was held before the Attorney-Referee, of which trial transcripts were subsequently filed on NYSCEF (hereinafter collectively "Trial Transcript");FN19 with the Trial Transcript reflecting all witnesses who testified at trial, and all additional exhibits admitted into evidence not agreed to in the Stipulation of Exhibits.

On September 12, 2025, post-trial briefs were filed by both Plaintiff (hereinafter "Plaintiff's Brief")FN20 and Defendant (hereinafter "Defendant's Brief").FN21

On October 16, 2025, the Attorney-Referee's report was filed (hereinafter "Referee [*4]Report"),FN22 setting forth her recommendations to this Court regarding the resolution of all remaining issues in this matter, and directing that any motion to confirm or reject all or parts of the Referee Report were to be filed within fifteen days of the filing of the Referee Report.

On October 23, 2025, Plaintiff requested by letter,FN23 an extension of the deadline to file a motion to confirm or reject all or parts of the Referee Report, which was granted the same day by this Court's Order,FN24 directing that any such motions were to be filed by November 14, 2025.

On November 14, 2025, Plaintiff filed Motion Sequence No. 7,FN25 by order to show cause seeking the above-referenced relief, including as supporting documents: (1) an affirmation of Plaintiff's counsel (hereinafter "Plaintiff Counsel's Affirmation in Support");FN26 (2) an affirmation of Plaintiff (hereinafter "Plaintiff's Affirmation");FN27 and, a plethora of exhibits. The same day, this Court conformed Motion Sequence No. 7,FN28 and directed the following: (1) Plaintiff was directed to serve Motion Sequence No. 7 and all supporting papers upon which it is based, on Defendant, by November 17, 2025; (2) answering submissions by Defendant were to be served by December 1, 2025; and, (3) December 16, 2025, being the return date of Motion Sequence No. 7, with no reply submission accepted, and no appearances required on the return date.

On November 18, 2025 and November 25, 2025, Defendant requested by two separate letters,FN29 an extension of Defendant's time to submit an answering submission to Motion Sequence No. 7, permitting submissions by December 21, 2025. On November 25, 2025, this Court granted such requests by Order,FN30 directing the following: (1) any answering submission and/or cross motion to Motion Sequence No. 7 were to be served by Defendant by December 21, 2025; and, (2) any answering submissions to any cross motions filed were to be served by Plaintiff by January 2, 2026, also being the new return date of Motion Sequence No. 7, with no reply submissions accepted, and no appearances on the return date.

On November 26, 2025, Plaintiff requested by letter,FN31 an extension to file answering submissions to any cross motions filed to January 9, 2026. The same date, this Court granted [*5]such request by Order,FN32 directing the following: (1) any answering submission and/or cross motion to Motion Sequence No. 7 were to be served by Defendant by December 21, 2025; and, (2) any answering submissions to any cross motions filed were to be served by Plaintiff by January 9, 2026, also being the new return date of Motion Sequence No. 7, with no reply submissions accepted, and no appearances on the return date.

On December 11, 2025, Defendant requested by letter,FN33 a further extension of time to submit any answering submission and/or cross motion to Motion Sequence No. 7, from December 21, 2025 to December 22, 2025, which was granted by this Court's Order FN34 of the same date, with all other remaining directives related to Motion Sequence No. 7 remaining the same.

On December 22, 2025, Defendant filed Motion Sequence No. 8,FN35 by notice of motion in support of seeking the above-referenced relief, and in opposition to Motion Sequence No. 7, including as the sole supporting document, an affirmation of Defendant's counsel (hereinafter "Defendant Counsel's Affirmation in Support").FN36

On January 9, 2026, Plaintiff filed answering papers in opposition FN37 to Motion Sequence No. 8, including the following supporting documents: (1) an affirmation of Plaintiff's counsel in opposition to Motion Sequence No. 8 (hereinafter "Plaintiff Counsel's Affirmation in Opposition");FN38 and, additional supporting exhibits.

No other submissions have been filed pertaining to Motion Sequence Nos. 7-8.

Legal Analysis

A. Defective Motion Papers.

It is well-settled in New York State that "moving papers generally consist of three items: (1) a notice of motion or order to show cause; (2) affidavits and affirmations with exhibits; and (3) a memorandum of law" (David D. Siegel, New York Practice § 246 [6th ed 2018]). Failure to include "an affidavit by someone with personal knowledge of the pertinent facts" compels summary denial of the motion (Yaffe v. Shkreli, 187 AD3d 592 [1st Dept 2020]; United Talmudic Academy of Kiryas Joel v. Khal Bais Halevi Religious Corp., 232 AD2d 547 [2d Dept 1996]).

Pursuant to New York Civil Practice Law and Rules (hereinafter "CPLR") § 2106:

"(a) The statement of any person wherever made, subscribed and affirmed by that person to be true under the penalties of perjury . . . may be used in an action in New York in lieu [*6]of and with the same force and effect as an affidavit . . . Such affirmation shall be in substantially the following form:

"I affirm this ___ day of ______, ____, under the penalties of perjury under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law.

(Signature)" [emphasis added] (CPLR § 2106).

The Court of Appeals has provided useful guidance with respect to the way courts are to interpret statutes:

" 'It is fundamental that a court, in interpreting a statute, should attempt to effectuate the intent of the Legislature' (Patrolmen's Benevolent Assn. v. City of New York, 41 NY2d 205, 208 [391 N.Y.S.2d 544, 359 N.E.2d 1338 (1976)]; see also, *843 Longines-Wittnauer v. Barnes & Reinecke[, Inc.], 15 NY2d 443, 453 [261 N.Y.S.2d 8, 209 N.E.2d 68 (1965)]). As the clearest indicator of legislative intent is the statutory text, the starting point in any case of interpretation must always be the language itself, giving effect to the plain meaning thereof. As we have stated: 'In construing statutes, it is a well-established rule that resort must be had to **410 the natural signification of the words employed, and if they have a definite meaning, which involves no absurdity or contradiction, there is no room for construction and courts have no right to add to or take away from that meaning' (Tompkins v. Hunter, 149 NY 117, 122—123 [43 N.E. 532 (1896)]; see also, Matter of Raritan Dev. Corp. v. Silva, 91 NY2d 98 [667 N.Y.S.2d 327, 689 N.E.2d 1373 (1997)])" (Majewski v. Broadalbin-Perth Cent. School Dist., 91 NY2d 577 [1998]).

In examining the words employed by the Legislature in the applicable statute, CPLR § 2106 includes the following relevant language, "[s]uch affirmation shall be in substantially the following form." "In the absence of contrary legislative intent or any qualifying language in the statute, the word 'shall' is deemed to be mandatory" (Saunders v. Smith, 99 AD2d 671 [4th Dept 1984]; see also, 97 NY Jur. 2d Statutes § 17). Notably, the second portion of the highlighted section of the statute is the word "substantially," which means "in a substantial manner" (see https://www.merriam-webster.com/dictionary/substantially), with the word "substantial" meaning "largely but not wholly that which is specified" (see https://www.merriam-webster.com/dictionary/substantial). Lastly, the adjective "substantially"/"substantial" in the phrase "substantially the following form" describes the noun "form," which means "the shape and structure of something as distinguished from its material" (see https://www.merriam-webster.com/dictionary/form).

As the Legislature included the word "shall" in CPLR § 2106, this Court determines that the word "shall" was intended by the Legislature to be a mandatory requirement, for which this Court has no discretion to overlook. Moreover, this Court determines the word "substantially"/"substantial" to mean largely but not wholly that which is specified. This Court finds that, when read within the statute, "in substantially the following form," substantially acts as an adjective describing the "form" of the following required admonition, meaning its structure as opposed to its substance. Collectively, this Court determines that the meaning of "in substantially the following form" is that an affiant need not use the exact verbiage of the admonition as specified within CPLR § 2106, so long as the substance of the admonition provides the following: (1) the affiant affirms on a particular date; (2) under the penalties of [*7]perjury; (3) under the laws of New York; (4) which may include a fine or imprisonment; (5) that the foregoing is true; and, (6) that the affiant understands that the document may be filed in an action or proceeding in a court of law.

This interpretation is supported by recent decisions throughout the State of New York, which confirm that an affirmation which fails to comport with the requirements of CPLR § 2106, shall be inadmissible and must be disregarded by the Court (see Great Lakes Insurance SE v. American Steamship Owners Mutual Protection and Indemnity Association Inc., 228 AD3d 429 [1st Dept 2024]). "Subsequent to January 1, 2024, courts have found that a statement simply affirming the following under the penalties of perjury fails to acknowledge the laws of New York and the possibility of fines or imprisonment and as a result is not in admissible form and cannot be relied upon. Inasmuch as the oath is not something the court is permitted to infer and the purpose of the requirement impresses on the witness the gravity of his factual account, an affirmation lacking the language that CPLR 2106 now requires fails to demonstrate an appreciation for that gravity and is ultimately not a verification at all." (Gransard v. Hutchinson, 2024 WL 1957086 [Supreme Court NY County, Latin J.][internal citations and quotation marks omitted] affd for the reasons stated by Latin, J., Gransard v. Hutchinson, 227 AD3d 491 [1st Dept 2024]).

In support of Motion Sequence No. 7, Plaintiff submits Plaintiff Counsel's Affirmation in Support, which begins with the following language: "[Redacted], an attorney duly admitted to practice before the Courts of the State of New York, affirms the following under penalty of perjury pursuant to Rule 2106 of the CPLR:".FN39 Clearly, Plaintiff Counsel's Affirmation in Support fails to include the following portions of the required admonition: "under the laws of New York, which may include a fine or imprisonment, that the foregoing is true, and I understand that this document may be filed in an action or proceeding in a court of law." Tellingly, Plaintiff's Affirmation, submitted in further support of Motion Sequence No. 7, does include the full required admonition outlined in CPLR § 2106. However, Plaintiff's Affirmation is three paragraphs in length, providing no facts or law in support of the application, and simply directs this Court to review Plaintiff Counsel's Affirmation in Support, which is deficient.

In opposition to Motion Sequence No. 7, and in support of Motion Sequence No. 8, Defendant submits Defendant Counsel's Affirmation in Support which begins with the following language: "[Redacted], an attorney duly admitted to practice law before the Courts of the State of New York, hereby affirms, pursuant to CPLR § 2106 and under penalties of perjury, the following to be true:".FN40 Defendant Counsel's Affirmation fails to include the following portions of the required admonition: "under the laws of New York, which may include a fine or imprisonment, and I understand that this document may be filed in an action or proceeding in a court of law." There are no further submissions filed by Defendant in opposition to Motion Sequence No. 7 or in support of Motion Sequence No. 8.

In opposition to Motion Sequence No. 8, Plaintiff submits Plaintiff Counsel's Affirmation in Opposition which begins with the following language: "[Redacted], an attorney licensed to practice before the Courts of the State of New York, affirms under the penalties of perjury as [*8]follows:",FN41 missing the same portions of the CPLR § 2106 admonition as set forth within Plaintiff Counsel's Affirmation in Support. Other than exhibits annexed to the subject affirmation, there are no further submissions filed by Plaintiff in opposition to Motion Sequence No. 8.

Having found the admonition included within CPLR § 2106 to be a mandatory statutory requirement for a movant to submit an affirmation in lieu of an affidavit; and, that such admonition must include, in some substantial form, all six aforementioned requirements, this Court determines that Plaintiff Counsel's Affirmation in Support provides only two of the six requirements of a proper CPLR § 2106 admonition; Defendant Counsel's Affirmation in Support provides only three of the six requirements of a proper CPLR § 2106 admonition; and, Plaintiff Counsel's Affirmation in Opposition provides only two of the six requirements of a proper CPLR § 2106 admonition.

As none of the three "affirmations" submitted in support and opposition to Motion Sequence Nos. 7 and 8 contain the mandatory language of CPLR § 2106 in complete and substantial form,FN42 they cannot be accepted in lieu of an affidavit and must be rejected. Consequently, all supporting and opposing documents submitted to this Court regarding Motion Sequence Nos. 7 and 8 are deficient, and will be disregarded by this Court and therefore, both pending applications must be denied.

This Court is now left in a situation as if neither party had moved to confirm or reject the Referee Report. As will be set forth in greater detail herein-below, in situations where neither party files such a motion, the Court has an affirmative duty to issue its own determination, which this Court now provides.

B. The Court's Obligation To Issue Its Own Determination To Confirm, Reject, And/Or Modify The Referee Report.

CPLR § 4403 sets forth the mechanism by which a party, or a court on its own initiative, can seek to confirm, reject, or seek other relief related to a report of a court attorney-referee as follows:

"§ 4403. Motion for new trial or to confirm or reject or grant other relief after reference to report or verdict of advisory jury.

Upon the motion of any party or on his own initiative, the judge required to decide the issue may confirm or reject, in whole or in part, the verdict of an advisory jury or the report of a referee to report; may make new findings with or without taking additional testimony; and may order a new trial or hearing . The motion shall be made within fifteen days after the verdict or the filing of the report and prior to further trial in the action. Where no issues remain to be tried the court shall render decision directing judgment in the action" [emphasis added].

The practice commentaries to CPLR § 4403 make clear that the legislative purpose of the statute is as follows:

"The essence of CPLR 4403 is to provide a mechanism by which referee reports and advisory jury verdicts are brought to the attention of the court, to be confirmed or rejected in whole or in part. The mechanism has three primary steps, the first being the filing of the report or the rendering of the advisory verdict, and the second being a motion of a party to the court, and perhaps cross-motion of another party, for its confirmation, rejection, or modification. As discussed below, the court may take the initiative on the report or advisory verdict if no party does so via motion . The third step of the statute is the court's decision on the motion which, in many cases, may permit the disposition of the case by entry of a judgment. But the reviewing court has other options to choose from as well, including the re-taking of testimony or the ordering of an entirely new trial or hearing. Ultimately, the court is in the driver's seat about what to do with a referee's report and an advisory verdict" [emphasis added] (see CPLR § 4403 Practice Commentaries § C4403:1 [Hon. M. Dillon] 2025).

Looking for further guidance, when discussing the Court's duty pursuant to CPLR § 4403, the practice commentaries continue:

"Recognizing that neither party might make a CPLR 4403 motion for whatever reason, the statute also vests the court with the authority to take the initiative in confirming or rejecting a referee's report in whole or in part. Indeed, that is one of the primary motivators of the legislature in enacting the statute (Matter of Breland [Motor Veh. Acc. Indem. Corp.], 24 AD2d 881, 264 N.Y.S.2d 584 [2d Dep't. 1965]). The authority of the court to confirm or reject the referee's report on its own initiative would normally be exercised only if neither party to the action initiates a motion, as opposed to the court jumping the gun within the party's initial 15-day window" [emphasis added] (CPLR § 4403 Practice Commentaries § C4403:2 [Hon. M. Dillon] 2025).

In supplementing and working in concert with CPLR § 4403, the Uniform Civil Rules for the Supreme Court and County Court (22 NYCRR § 202.1 — § 202.72) (hereinafter "Court Rules") provide litigants and the motion court hearing such application, with the following directives:

"22 NYCRR § 202.44: Motion to confirm or reject judicial hearing officer's report or referee's report.

(a) When a judicial hearing officer or referee appointed to hear and report has duly filed his or her report, together with the transcript of testimony taken and all papers and exhibits before him or her in the proceedings, if any, and has duly given notice to each party of the filing of the report, the plaintiff shall move on notice to confirm or reject all or part of the report within 15 days after notice of such filing was given. If plaintiff fails to make the motion, the defendant shall so move within 30 days after notice of such filing was given.

(b) If no party moves as specified above, the court, on its own motion, shall issue its determination . Costs of such motion, including reasonable attorneys' fees, shall be borne by the parties pro rata, except a party who did not request any relief. However, the Attorney General of New York, or State, Federal or local governmental agencies or [*9]officers thereof, shall not be liable for costs. This subdivision shall not apply to a reference to a special referee or a judicial hearing officer or to a reference to a referee in an uncontested matrimonial action.

(c) The term 'referee' in this section shall be used as defined in section 202.43(e) of this Part [emphasis added]."

This Court reads both CPLR § 4403 and 22 NYCRR § 202.44 to mandate the "referring court" to confirm or reject, in whole or in part, referee's reports on its own initiative, assuming the parties have not filed motions within the statutory time period; and, the Appellate Division, Second Department has confirmed that there is no time limitation in which a Court may so act (see Breland v. Motor Vehicle Accident Indemnification Corp., 24 AD2d 881 [2d Dept 1965]). This same mandate has been extended in the context of matrimonial actions, where a referee's findings from a hear and report order must still be accepted, or rejected in whole or in part by the referring court (see Rosenfield v. Rosenfield, 272 A.D. 547 [1st Dept 1947]).

Based on the procedural defects outlined herein-above which required the denial of both Motion Sequence Nos. 7 and 8, both Plaintiff and Defendant have, in essence, failed to file an admissible application either seeking to confirm, or reject in whole or in part the Referee Report, and as such have waived their right to assert such support or objection to same (see CitiMortgage v. Stuckova, 199 AD3d 984 [2d Dept 2021] [" 'In enacting CPLR 4403, the Legislature intended that the parties point out in what respects, if any, the Referee's report or his [or her] conduct of the proceedings is erroneous' (internal citations omitted). As the defendant did not oppose the plaintiff's motion to confirm the referee's report, or cross-move to reject it, she has waived her right to assert objections to the findings of the referee for the first time on appeal (see O'Donnell v. O'Donnell, 80 AD3d 586, 587, 914 N.Y.S.2d 300; see also Passaro v. Henry, 251 AD2d at 391, 673 N.Y.S.2d 322; Matter of Treider v. Lamora, 44 AD3d 1241, 1243, 846 N.Y.S.2d 389)"]; see also Abe v. New York University, 190 AD3d 543 [1st Dept 2021]; Galiber v. Previte, 40 NY2d 822 [1976]).

Consequently, this Court determines that it must, on its own, review the Referee Report in question and make its own findings to confirm, reject, modify, and/or amend the recommendations included therein, such analysis being provided herein-below.

C. Legal Standard To Confirm/Reject Referee Report.

It is well-settled that reports and recommendations from a court attorney-referee should be confirmed whenever their findings are substantially supported by the record, the referee has clearly defined the issues, and resolved matters of credibility (see DeStefano v. Law Offices of William Pager 232 AD3d 788 [2d Dept 2024]; see also Deutsche Bank National Trust Co. v. Quaranta, 231 AD3d 929 [2d Dept 2024]; Courtview Owners Corp. v. Courtview Holding, B.V., 193 AD3d 1032 [2d Dept 2021]; Flagstar Bank, F.S.B. v. Konig, 143 AD3d 790 [2d Dept 2017]; Galasso, Langione & Botter, LLP v. Galasso, 89 AD3d 897 [2d Dept 2011]; and Thomas v. Thomas, 21 AD3d 949 [2d Dept 2005].

New York Courts generally will look with favor and deference upon a referee's report, inasmuch as the referee, as a trier of fact, is considered to be in the best position to determine the issues presented (see Jan S. v. Leonard S., 26 Misc 3d 243 [Sup. Ct. NY Cnty. 2009] see also S.E. v. M.E., 52 Misc 3d 1224(A) [Sup. Ct. Kings Cnty. 2016]). Where all issues before a referee are factual in nature, and no adequate reason appeared why referee's recommendations should be [*10]disturbed, the referee's report should be confirmed (see Industrial Installations Corp. v. Sparer, 74 N.Y.S.2d 198 [Sup. Ct. NY Cnty. 1947]). Moreover, the fact that a referee disbelieved parts of a claimant's testimony, and believed other parts, is no reason for setting aside referee's finding on a disputed question of fact (see In Re Winsweiler's Estate, 146 Misc. 436 [Sup. Ct. Kings Cnty. 1933]).

Conversely, if a referee's findings are not substantially supported by the record, for example where financial calculations are based upon unproduced business records, the referee's report should not be confirmed (see Wells Fargo Bank v. Campbell, 196 AD3d 726 [2d Dept 2021]; Campbell v. New Way Life, Inc., 190 AD3d 928 [2d Dept 2021]).

This Court now reviews the Referee Report, in determining whether to confirm, reject, and/or modify all or part of same.

1. Credibility Assessments & Defined Issues Presented By Attorney-Referee

As an initial matter, this Court determines that the Attorney-Referee has dealt with matters of witness credibility, regarding both fact witness and expert witness.FN43 Moreover, the Attorney-Referee has clearly defined the issues which remain, arising out of the requested dissolution of the parties' marriage, being: (1) the valuation date for Defendant's business interests in (a) [Redacted]; (b) [Redacted]; and, (c) [Redacted] (hereinafter collectively "G.V.S."); (2) equitable distribution of Defendant's business interests in G.V.S.; (3) equitable distribution of the marital residence located at, [Redacted] (hereinafter "Marital Residence"); (4) spousal maintenance; (5) equitable distribution of "seed money" used to create G.V.S.; and, (6) attorneys' and expert fees.FN44 Therefore, as the Attorney-Referee has clearly defined the issues and resolved matters of credibility, all that remains is an analysis of whether or not the recommendations of the Attorney-Referee included within the Referee Report are substantially supported by the record.

2. Analysis of Remaining Issues Presented

a. Valuation Date For Defendant's Business Interests In "G.V.S."

At trial, Plaintiff argued that this Court previously denied Defendant's application that the date of commencement should be the adhered to valuation date of G.V.S.; and, that equity instead requires the Court to use December 31, 2022 as the date of valuation, in order to properly take into account the value provided by Plaintiff's direct and indirect contributions to the success of G.V.S., thereby providing her with an opportunity to share in a more accurate reflection of the value Defendant's businesses.FN45 Alternatively, Defendant maintains that the valuation date of G.V.S. should be the date of commencement, May 11, 2018, arguing that Plaintiff's contributions to G.V.S., if any, ended on September 2017, eight months prior to the date of commencement, following a physical altercation between the parties and J.J.; and, that any value added to G.V.S. from date of commencement through December 31, 2022, was strictly due to Defendant's [*11]"business acumen, veterinary specializations and countless hours of hard work."FN46 The Attorney-Referee recommendation is that G.V.S. be valued as of the date of commencement, May 11, 2018, and this Court confirms such recommendation for the reasons set forth herein-below.

- Attorney-Referee's Determination That This Court's July 10, 2023 Decision And Order Did Not Set A Fixed Valuation Date For G.V.S.

The crux of this issue appears to be centered around this Court's July 10, 2023, decision and order which resolved Motion Sequence Nos. 1 and 2 (hereinafter "7/10/2023 Decision & Order").FN47 Of note, the 7/10/2023 Decision & Order was admitted into evidence as Plaintiff's Exhibit 17 at the subject trial. For background, the 7/10/2023 Decision & Order addressed requests from both Plaintiff and Defendant to obtain an order from this Court establishing the valuation date for Defendant's business interests in G.V.S. For clarity relevant portions of the 7/10/2023 Decision & Order are included herein:

"A preliminary conference was held on August 8, 2018. Pursuant to the Preliminary Conference Stipulation and Order, two orders of appointment were issued on August 14, 2018 . . . Next, by Order Appointing Neutral Forensic Evaluator, John R. Johnson,FN48 PA, ABV, CFF, CBA, CVA, FABFA was appointed to value Defendant's income stream, a business known as G.V.S., and 14 additional business interests as indicated in the Order. The valuation date was indicated as 'present value.' Defendant was directed to advance the fee for the appraisals subject to reallocation at the time of trial.

* * *

In sum, Plaintiff argues that in addition to the date set forth in the Order of appointment, i.e., "present date", or August 14, 2018, the Court should additionally direct the neutral financial evaluator to value Defendant's business interests as of December 31, 2022. She claims entitlement to a share of a more current value of the business assets due the use of marital seed money to start the businesses, and as a result of her direct and indirect contributions throughout the marriage. To the contrary, Defendant argues that the Court already has established the correct valuation date in its Order appointing the neutral financial evaluator, and contends that Plaintiff contributed neither directly nor indirectly to his post-commencement efforts to build the businesses into their current form.

* * *

Here, the Court appointed a neutral financial evaluator to appraise Defendant's business interests and income stream on August 14, 2018. Somewhat unusually, the valuation date stated in the Order is "present value" which this Court interprets in the only manner it believes to be reasonable, i.e., that "present" value means "present" as of the date of the Order. While Plaintiff does not take issue with this valuation date specifically, she seeks an order directing the neutral financial evaluator to conduct a second evaluation of [*12]Defendant's business assets as of December 31, 2022, closer to the date of trial. Plaintiff alleges that this will provide her with an opportunity to share in the profit of these assets if the Court accepts that she directly and/or indirectly contributed to the success thereof during the parties' marriage.

* * *

The Court has considered and rejected Defendant's argument that the date of commencement should be used as the valuation date for his business assets. First, the Court notes that Defendant did not seek a date of commencement valuation at the time the order was issued, although all of the arguments he makes in his cross-motion were available at that time. Next, while the Court has considered Defendant's argument that Plaintiff's actions have caused more harm to his business interests than help, this is an issue of fact for trial. The Court concedes that Defendant has worked hard to establish G.V.S. as a successful going concern. For purposes of this motion, however, the Court also accepts as true Plaintiff's assertion that she worked together with Defendant to build the business while caring for the parties' three children prior to the divorce action. Given these circumstances, the Court believes it to be an appropriate exercise of its discretion to direct the neutral financial evaluator to appraise Defendant's business interests and income stream as of August 14, 2018 (the date of the Order) and December 31, 2022, as hereinafter directed. The Court believes the December 31, 2022 date to be a reasonable valuation date between the commencement date and the date of trial [emphasis added]."

As substantially reviewed by the Attorney-Referee, while the Court's 7/10/2023 Decision & Order did deny Defendant's application to set a fixed valuation date of G.V.S. at the date of commencement, it clearly intended to set two valuation dates for the neutral expert's scope of appointment, being August 14, 2018 (the date of the initial appointment order) and December 31, 2022,FN49 so that "if [at trial] the Court accepts that she directly and/or indirectly contributed to the success thereof during the parties' marriage," the later valuation date would provide her with an opportunity to share in G.V.S.'s profits following these proceedings, to the extent the Court determined at trial Plaintiff was entitled to such relief.FN50 This reading of the 7/10/2023 Decision & Order is most clearly set forth in the following determination:

"Given these circumstances, the Court believes it to be an appropriate exercise of its discretion to direct the neutral financial evaluator to appraise Defendant's business interests and income stream as of August 14, 2018 (the date of the Order) and December 31, 2022[emphasis added]."FN51

Clearly, it was not the intention of this Court to set only one valuation date of G.V.S., being December 31, 2022. Furthermore, the Attorney-Referee correctly noted that neither the [*13]7/10/2023 Decision & Order nor the second amended order appointing neutral financial evaluator, dated August 10, 2023 (hereinafter "Amended Order of Appointment"),FN52 were challenged by way of subsequent motion or appeal by either party.

In compliance with this Court's 7/10/2023 Decision & Order and Amended Order of Appointment, Thomas A. Hutson of BST & Co. CPAs, LLP (hereinafter "Neutral Valuation Expert") issued two separate valuation reports, one dated August 26, 2024 with a valuation date for G.V.S. as of May 11, 2018, being the date of commencement (hereinafter "May 2018 Valuation"),FN53 and a second dated March 14, 2025 with a valuation date for G.V.S. as of December 31, 2022 (hereinafter "December 2022 Valuation"),FN54 such reports being admitted into evidence at trial without objection as Plaintiff's Exhibits 25-26, respectively.FN55

While this Court notes that the May 2018 Valuation provided a value of G.V.S. as of the date of commencement (May 11, 2018) instead of following this Court's directive to use August 14, 2018 as the earlier valuation date, being the date of the initial appointment Order, there was no application made by either party to reject the May 2018 Valuation, such document being provided to all parties approximately one year prior to trial, and thereafter admitted into evidence at trial without objection. Therefore, this Court initially confirms that it was not its intention to solely use the December 31, 2022 valuation date with respect to equitable distribution of G.V.S., as set forth in the record and the procedural history of these proceedings.

- Attorney-Referee's Determination That The Appropriate Valuation For G.V.S. Was The May 2018 Valuation

Notwithstanding the procedural arguments made herein-above regarding which valuation date should apply, the Attorney-Referee also addressed the substantive reasons to recommend the date of commencement, and the May 2018 Valuation, as the appropriate evaluation date and value by which to distribute G.V.S. This Court further confirms the Attorney-Referee's recommendations in this regard.

"A Court possesses discretion and flexibility in selecting valuation dates that are appropriate and fair under the circumstances" (Maddalena v. Maddalena, 217 AD2d 606 [2d Dept 1995]). The Court's discretion is limited only by the requirement that the valuation date be sometime between the commencement date of the divorce action and the date of trial (see DRL § 236[B][4][b]; see also Kushman v. Kushman, 297 AD2d 333 [2d Dept 2002]). "The trial court has broad discretion in selecting the dates for the valuation of marital assets and, depending on the particular circumstances of the case, may appropriately fix different valuation dates for different assets" (Sinnott v. Sinnott, 194 AD3d 868 [2d Dept 2021]; citing Pappas v. Pappas, 140 AD3d 838 [2d Dept 2016]). "[T]here is no uniform rule for fixing the value of a business for the purpose of equitable distribution. Valuation is an exercise properly within the fact-finding [*14]power of the trial court, guided by expert testimony" (Davenport v. Davenport, 199 AD3d 637 [2d Dept 2021], citing Wasserman v. Wasserman, 66 AD3d 880 [2d Dept 2009]; see Burns v. Burns, 84 NY2d 369 [2d Dept 1994]; see also Greisman v. Greisman, 98 AD3d 1079 [2d Dept 2012]).

Initially, the Attorney-Referee took into account the credibility of the relevant expert testimony, including finding the testimony of the Neutral Valuation Expert credible,FN56 after reviewing his expertise as a financial evaluator;FN57 his methodology for valuation, specifically the fair market valuation method;FN58 the valuation factors considered and documents reviewed in furtherance of such evaluation (tax returns, contracts, account ledgers, and other financial data).FN59 Of note, there was no opposing expert opinion which rebutted the Neutral Valuation Expert's May 2018 Valuation, nor was there a challenge to the Neutral Valuation Expert's methodology or valuation on cross-examination with respect to the May 2018 Valuation. Therefore, this Court confirms the Attorney-Referee's acceptance of the Neutral Valuation Expert's opinion as credible, and the recommendation that the May 2018 Valuation of G.V.S. being $6,176,000 be accepted as such for the valuation date selected.

Beyond the review of expert witness testimony as set forth herein-above, the Attorney-Referee reviewed the fact witness testimony, including and especially that of the Plaintiff, with attention to the testimony regarding her purported direct and indirect contributions to G.V.S. The Attorney-Referee clearly considered Plaintiff's indirect contributions to the initial formation of G.V.S. in being primary caretaker of the parties' children;FN60 and, her direct contributions to G.V.S., including but not limited to: participating in meetings, interviewing potential staff, and helping to find the location for the subject hospital.FN61 However, the Attorney-Referee determined that notwithstanding her contributions, Plaintiff's involvement with G.V.S. was for a total of 18 months, ending in September 2017, with G.V.S. opening in March 2018.FN62 Furthermore, the Attorney-Referee focused on the fact that the business was small, employing less than a dozen employees at the time of its opening (six months after Plaintiff was no longer involved with the company) while G.V.S. now employes approximately 250 people and has acquired other [*15]businesses in order to grow.FN63

Overall, the Attorney-Referee relied upon Plaintiff and Defendant's testimony, giving greater weight to Defendant's, in determining that the success and value of G.V.S. in 2022 (and its current success) were due to Defendant's business prowess and reputation in the field, which has allowed the business to grow to achieve gross sales of $41,000,000 in 2024,FN64 despite having difficulty making enough profit to meet payroll obligations at the outset of G.V.S.'s opening (March, 2018).FN65 Defendant's efforts, coupled with the fact that there was no testimony presented to the Attorney-Referee from other witnesses which corroborated Plaintiff's claim that her efforts toward the start-up of G.V.S. led to its ultimate success and valuation in 2022, confirmed for the Attorney-Referee that it would be inequitable for this Court to use the December 2022 Valuation for purposes of equitable distribution of G.V.S.FN66

Based on this Court's review of the Referee Report, specifically the Attorney-Referee's analysis, and the evidence in the record presented at trial, along with the testimony elicited from the relevant witnesses, this Court determines that the Attorney-Referee's recommendation to use the date of commencement encompassing the May 2018 Valuation in order to value G.V.S., is substantially supported by the record, and this Court sees no need to disturb this determination, confirming same.

b. Equitable Distribution Of Defendant's Business Interests In "G.V.S." To Plaintiff

Using the May 2018 Valuation of G.V.S., being $6,176,000, the Attorney-Referee recommended that Plaintiff receive a distributive award of 30% of the value of the May 2018 Valuation of G.V.S., being $1,852,800. For the reasons set forth herein-below, this Court confirms the distributive award to Plaintiff from Defendant recommended by the Attorney-Referee, based on Defendant's interests in G.V.S. However, as it appears there was no directive in the Referee Report regarding how such award would be distributed, this Court must provide additional directives to effectuate such distribution.

The Appellate Division, Second Department has noted the manner in which a trial court is to make a determination as to equitable distribution in the context of a matrimonial action:

"The Equitable Distribution Law mandates that, whenever a marriage is terminated, absent an agreement of the parties, the court must determine the rights of the parties in their separate and marital property and provide for the disposition of the property in the final judgment (Domestic Relations Law § 236[B][5][a]).

* * *

The court is obligated to render a decision in which it sets forth the factors it considered [*16]and the reasons for its decision, a requirement that cannot be waived. In the absence of express findings of fact and of a detailed discussion of the enumerated factors, meaningful appellate review is precluded and a remittal for further fact finding may be required. Facts must be sufficiently developed at trial to enable a reasoned determination of the issues of equitable distribution and, if not, a new trial may be ordered." (Kaufman v. Kaufman, 189 AD3d 31, 52 [2d Dept 2020] [internal citations omitted]).

DRL § 236[B][5] notes, in part, that:

"b. Separate property shall remain such.

c. Marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.

d. In determining an equitable disposition of property under paragraph c, the court shall consider:

(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 earner and homemaker, and to the career or career potential of the other party. The court shall not consider as marital property subject to distribution the value of a spouse's enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, in arriving at an equitable division of marital property, the court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse;

(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 described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts;

(15) in awarding the possession of a companion animal, the court shall consider the best interest of such animal. "Companion animal", as used in this subparagraph, shall have the [*17]same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law; and

(16) any other factor which the court shall expressly find to be just and proper.

e. In any action in which the court shall determine that an equitable distribution is appropriate but would be impractical or burdensome or where the distribution of an interest in a business, corporation or profession would be contrary to law, the court in lieu of such equitable distribution shall make a distributive award in order to achieve equity between the parties. The court in its discretion, also may make a distributive award to supplement, facilitate or effectuate a distribution of marital property.

f. In addition to the disposition of property as set forth above, the court may make such order regarding the use and occupancy of the marital home and its household effects as provided in section two hundred thirty-four of this chapter, without regard to the form of ownership of such property.

g. In any decision made pursuant to this subdivision, the court shall set forth the factors it considered and the reasons for its decision and such may not be waived by either party or counsel."

Initially, the court must first determine what the assets are (Fields v Fields, 15 NY3d 158, 161 [2010] ["the initial determination of whether a particular asset is marital or separate property is a question of law, subject to plenary review on appeal"]). Marital property is defined to include, "all property acquired by either or both spouses during the marriage and before...the commencement of the matrimonial action, regardless of the form in which title is held" (DRL § 236[B][1][c]). Alternatively, "property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse" is defined as separate property (DRL § 236(B)[1](d)[1]). Importantly, relevant case law dictates that the term "marital property" is to be broadly construed, while "separate property" is to be narrowly construed (see Judson v. Judson, 255 AD2d 656 [3d Dept 1988] citing Price v. Price, 69 NY2d 8 [1986]; see also Farag v. Farag, 4 AD3d 502 [2d Dept 2004]).

"Hence, the law favors the inclusion of property within the marital estate . . . and, accordingly, the party seeking to establish that a particular item is indeed separate property bears the burden of proof" (see A.C. v. J.O., 40 Misc 3d 1236(A) [Sup. Ct. Kings Cnty 2013]; compare DRL § 236[B][1][c] and [d]; see Burns v. Burns, 84 NY2d 369 [1994]; Majauskas v. Majauskas, 61 NY2d 481 [1984]; LeRoy v. LeRoy, 274 AD2d 362 [1st Dept 2000], citing Seidman v. Seidman, 226 AD2d 1011 [3d Dept 1996]; see also Heine v. Heine, 176 AD2d 77 [1st Dept 1992]).

"Although in a marriage of long duration where both parties have made significant contributions to the marriage, a division of marital assets should be made as equal as possible, there is no requirement distribution of each item of marital property be made on an equal basis" (Chalif v. Chalif, 298 AD2d 348, 349 [2d Dept 2002]; see also Repetti v. Repetti, 147 AD3d 1094, 1098 [2d Dept 2017]). "Courts have discretion to value 'active assets' such as a professional practice on the commencement date [of the action], while 'passive assets' such as securities, which could change in value suddenly based on market fluctuations, may be valued at the date of trial but such formulation should be treated as helpful guideposts and not immutable rules" (Lieberman-Massoni v. Massoni, 215 AD3d 656 [2d Dept 2023]; Daniel v. Friedman, 22 AD3d 707, 708 [2d Dept 2005]; see also Grunfeld v. Grunfeld, 94 NY2d 696, 707 [2000]).

The Appellate Division, Second Department has noted:

" 'A trial court is vested with broad discretion in making an equitable distribution of marital property, and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed' (Aloi v. Simoni, 82 AD3d 683, 685, 918 N.Y.S.2d 506 [internal quotation marks omitted]). ' 'Equitable distribution is based on the premise that a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner or homemaker' ' (Repetti v. Repetti, 147 AD3d 1094, 1098, 47 N.Y.S.3d 447, quoting K. v. B., 13 AD3d 12, 17, 784 N.Y.S.2d 76 *998 [internal quotation marks omitted]). ' 'The distribution of marital assets depends not only on the financial contribution of the parties but also on a wide range of nonremunerated services to the joint enterprise, such as homemaking, raising children and providing the emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home' ' (Repetti v. Repetti, 147 AD3d at 1098, 47 N.Y.S.3d 447, quoting K. v. B., 13 AD3d at 17, 784 N.Y.S.2d 76 [internal quotation marks omitted])" (Novick v. Novick, 214 AD3d 995 [2d Dept 2023]).

When making a determination as to equitable distribution of marital property, a court must first determine the value of such property (see Niles v. Niles, 126 AD2d 874 [3d Dept 1987]). The court has discretion in determining the date of valuation of an active business interest, which may include the date of the trial (see Domino v. Domino, 115 AD3d 906 [2d Dept 2014]; see also Giallo-Uvino v. Uvino, 165 AD3d 894 [2d Dept 2018]; Cotton v. Roedelbronn, 170 AD3d 595 [1st Dept 2019]).

Where a spouse is seeking an interest in business interests of the other, the non-titled spouse must identify the business interests and provide proof of value of those business interests (Post v. Post, 68 AD3d 471 [2d Dept 2009]). As to the manner in which a trial court should value a marital business interest, the Appellate Division, Second Department has directed:

"The valuation of a marital asset must be founded in economic reality (see Douglas v. Douglas, 281 AD2d 709, 711, 722 N.Y.S.2d 87; Iwahara v. Iwahara, 226 AD2d 346, 348, 640 N.Y.S.2d 217). However, '[t]here is no uniform rule for fixing the value of a business for the purpose of equitable distribution. Valuation is an exercise properly within the fact-finding power of the trial court, guided by expert testimony. The determination of the factfinder as to the value of a business, if within the range of the testimony presented, will be accorded deference on appeal if it rests primarily on the credibility of expert witnesses and their valuation techniques' (Wasserman v. Wasserman, 66 AD3d 880, 882, 888 N.Y.S.2d 90 [citations omitted]; see Burns v. Burns, 84 NY2d 369, 375, 618 N.Y.S.2d 761, 643 N.E.2d 80; Greisman v. Greisman, 98 AD3d 1079, 1081, 951 N.Y.S.2d 219; Bricker v. Bricker, 69 AD3d 546, 547, 893 N.Y.S.2d 128; Nissen v. Nissen, 17 AD3d 819, 821, 793 N.Y.S.2d 248)" (Sheehan v. Sheehan, 161 AD3d 912 [2d Dept 2018]).

"The matter of valuation of a business for purposes of equitable distribution is not dependent upon its form; the same principles and techniques apply whether the practice is conducted as a partnership or as a professional corporation" (Stolowitz v. Stolowitz, 106 Misc 2d 853 [Sup. Ct. Nassau Cnty. 1980]). In valuing such property the Court must take into consideration encumbrances on such property (see Gallagher v. Gallagher, 93 AD3d 1311 [4th [*18]Dept 2012]), as well as "inhibitions on the transfer of the corporate interest resulting from a limited market or contractual provisions" which may include lack of marketability (Nadasi v. Nadel-Nadasi, 153 AD3d 1346 [2d Dept 2017]; see also Cooper v. Cooper, 84 AD3d 854 [2d Dept 2011]; Davenport v. Davenport, 199 AD3d 116 [2d Dept 2021]), and may take into consideration an expert-recommended capitalization rate (see Novick v. Novick, 214 AD3d 995 [2d Dept 2023]).

Following valuation of the business interest of a spouse, the court must make a determination as to an appropriate equitable distribution of that interest, which may include a distributive award. The appellate division has upheld a distributive award equal to a 20%-25% interest, upon a finding by the trial court of the non-titled spouse's lack of direct contributions to business and the indirect contributions that spouse has provided in their role as stay-at-home parent and homemaker (see Rigas v. Rigas, 227 AD3d 1017 [2d Dept 2024]; see also Wagner v. Dunetz, 299 AD2d 347 [2d Dept 2002]; Grande-Bastuck v. Bastuck, 249 AD2d 444 [2d Dept 1998]).

However, upon a finding that the contributions of the non-titled spouse warranted a higher percentage of the value of the other's business interests, awards of 40%-50% have been upheld (see, L'Esperance v. L'Esperance, 243 AD2d 446 [2d Dept 1997] ["The husband further contends that the court improperly awarded the wife 40% of the value of his interest in Century Elevator. Inasmuch as the parties were married for 19 years as of the date of commencement of the action, and given the wife's contributions as spouse, parent, temporary wage earner, and homemaker, the court's award was appropriate"]; see also, Wasserman v. Wasserman, 66 AD3d 880 [2d Dept 2009] ["Considering the circumstances of the case, the Supreme Court providently exercised its discretion in awarding the defendant 50% of the value of the plaintiff's businesses (see Domestic Relations Law § 236[B][5] [d][6], [13] ). The fact that the plaintiff may have made greater economic contributions to the marriage than the defendant does not necessarily mean that he was entitled to a greater percentage of the marital property (see Price v. Price, 69 NY2d 8, 511 N.Y.S.2d 219, 503 N.E.2d 684; see also Rose v. Rose, 18 AD3d 852, 795 N.Y.S.2d 472)]").

When making a distributive award, a trial court must take into consideration the nonliquid nature of assets, and amount of the award, and may require payment of the award by installment payments over designated period of time at a statutory interest rate of 9% (see, Spinner v. Spinner, 188 AD3d 748 [2d Dept 2020]; see also Schussler v. Schussler, 109 AD2d 875 [2d Dept 1985]); Gold v. Gold, 276 AD2d 587 [2d Dept 2000]); Miklos v. Miklos, 9 AD3d 397 [2d Dept 2004]).

Here, the record reflects that neither party argued for relief other than the consideration of a distributive award being paid to the Plaintiff as the non-titled spouse, of a percentage of the Defendant's interest in G.V.S., with differing positions regarding the value of Defendant's interest and the percentage of which the Plaintiff would be entitled to for purposes of the subject distributive award. The Attorney-Referee engaged in a review of all relevant factors set forth in DRL § 236[B][5],FN67 and as set forth herein-above, in order to value, review Plaintiff's contributions, and set a distributive award. Specifically, the Attorney-Referee reviewed in detail the alleged contributions made by Plaintiff, specifically her indirect contributions made as a [*19]homemaker and primary caretaker of the Children for the approximately 17-year marriage, as reviewed in detail herein-above.FN68 With respect to the value of G.V.S., as set forth herein-above, neither Plaintiff nor Defendant challenged the substance of the May 2018 Valuation of G.V.S. Based on this Court's review of the Referee Report, the evidence in the record presented at trial, along with the testimony elicited from the relevant expert and fact witnesses, this Court determines that the Attorney-Referee's recommendation to award Plaintiff a distributive award of 30% of the value of G.V.S., being $1,852,800 is substantially supported by the record, and this Court sees no need to disturb this determination, confirming same.

However, this Court must set forth a schedule by which Defendant is to make such distribution to the Plaintiff, as it does not appear that the Referee Report provided for such recommendation. Therefore, Plaintiff's distributive award pertaining to G.V.S. of $1,852,800 shall be made in 60 monthly installment payments with a principal plus balance at a rate of 9% from the date of entry of this Decision and Order, with Defendant's ability to prepay without penalty. These payments shall be made on or before the first day of each month, commencing on May 1, 2026, and continuing until payment is made in full, with payments to be made by electronic funds transfer pursuant to electronic funds payment instructions to be filed by Plaintiff's counsel by April 15, 2026 on NYSCEF.

c. Equitable Distribution Of The Marital Residence

Plaintiff seeks to buyout the Defendant's interest in the Marital Residence, which was appraised at $805,000 as of October 8, 2024,FN69 is titled solely in Plaintiff's name,FN70 had a principal balance as of date of commencement on a mortgage held by Portfolio Servicing LLC, loan ending in XXXX of $380,000,FN71 which as of May 14, 2025 was paid down to $175,162.45 (hereinafter "Mortgage"),FN72 and is also encumbered by a home equity line of credit (hereinafter "HELOC") held by Wells Fargo, loan ending in XXXX, with a principal balance as of May 27, 2025 of $59,066.54.FN73 Of note, there is no opposition as to the valuation of the Marital Residence,FN74 and no dispute that Defendant has been paying all carrying costs on the Marital Residence since the date of commencement of this action, being $5,229.25 per month in mortgage payments, taxes and insurance, not including the cost for monthly utilities and [*20]necessary home repairs also paid for by Defendant.FN75 The Attorney-Referee's recommendation, based off of a claim that there was no opposition provided by Defendant, was to simply "permit" Plaintiff to purchase Defendant's share in the Marital Residence.FN76

Notwithstanding the assertions by the Attorney-Referee, it is clear from Defendant's testimony at trial, and the requests within Defendant's Brief made post-trial, that he prefers to sell the Martial Residence, equally divide the equity between the parties, and receive a credit for 50% of the amount he paid towards the principal loan owed on the Marital Residence during the course of the litigation.FN77 Moreover, the Joint Statement of Disposition FN78 makes clear that Defendant is also amenable to having Plaintiff assume the remaining mortgage and HELOC on the Martial Residence, so long as he gets a credit for 50% of the principal paydown of the Mortgage he paid off during the course of the litigation.

While the Attorney-Referee's recommendation is to permit Plaintiff to move forward with a buyout of the Marial Residence, no timeframe was provided with respect to such purchase of Defendant's interest, no discussion was had regarding any credits which Defendant may or may not be entitled to, no discussion was had regarding the encumbrances which remain on the Marital Residence, nor was there an alternative directive in the event Plaintiff is not able to buy out Defendant's interest in the property. Therefore, this Court confirms the Attorney-Referee's recommendation regarding Plaintiff's intention to buy out Defendant's interest in the Marital Residence, amends same to include credits owed to Defendant, and sets forth an alternative directive to sell the subject property in the event Plaintiff cannot purchase Defendant's interest in same within the timeframe permitted herein.

- Plaintiff's Buyout Of Defendant's Interest In Marital Residence

This Court directs, that Plaintiff shall buy out Defendant's interest to the Marital Residence within 180 days of the filing of this Decision and Order, with Plaintiff removing Defendant from the Mortgage and HELOC pertaining to the Martial Residence by that date, with such buyout equaling 50% of the Defendant's interest in the Marital Residence, plus a credit for the paydown of the principal balance of the Mortgage from date of commencement to the date of the buyout. The Court determines that Defendant would be owed a buyout of $387,804.28 which is appropriate given the following calculations, in addition to any additional funds paid by Plaintiff towards the principal paydown of the Mortgage and/or HELOC in addition to those considered herein:

$805,000 [Stipulated Value of Marital Residence]

$175,162.45 [Current Principal Mortgage Amount Owed]

$59,066.54 [Current HELOC Amount Owed]

$234,228.99 [Total Current Encumbrances On Marital Residence]

$805,000 - $234,228.99 = $570,771.01

[Parties' Shared Equity In Marital Residence]

$285,385.51 [Each Parties' 50% Equity Share]

$380,000 [Principal Mortgage Balance On Date of Commencement]

$175,162.45 [Principal Mortgage Balance As Of Trial]

$380,000 - $175,162.45 = $204,837.55

[Paydown of Principal Mortgage Balance]

$204,837.55 / 2 =

$102,418.78 [50% Credit Owed To Defendant For Principal Paydown]

$285,385.51 + 102,418.78 =

$387,804.28 [Defendant's Total Buyout]

It shall be the responsibility of the Plaintiff to prepare and file at her sole cost all necessary documents relating to her buyout of the Marital Residence, including the preparation and filing of any transfer documents to the extent the deed is not titled in Plaintiff's name,FN79 and ensure that Defendant is no longer liable for any liens or encumbrances on the property. In the event Defendant must sign any documents pertaining to Plaintiff's buy out of the Defendant's interest, he shall do so within five (5) business days following presentment of same by Plaintiff and by that date return same to Plaintiff or Plaintiff's attorney in hard-copy by traceable delivery to be received in hand by that date. The Plaintiff shall be solely responsible for any and all costs associated with preparing and filing any documents related to the buyout of the Marital Residence, including but not limited to, transfer taxes and mortgage taxes for refinance of the existing HELOC and Mortgage and/or obtaining a new mortgage.

Moreover, the Defendant will be entitled to $2,614.63 per month from Plaintiff, representing her 50% share of the monthly mortgage payment of $5,229.25 (hereinafter "Continuing Carrying Costs"), beginning on May 1, 2026, until such time as Plaintiff has effectuated her buyout of the Marital Residence. Plaintiff will continue to pay her share of such monthly Continuing Carrying Costs to Defendant until such time as the closing for Plaintiff's buyout of Defendant's interest in the Marital Residence, or until such time that a closing occurs for a sale to a third-party, pursuant to the further directives included herein-below. Payments by Plaintiff to Defendant shall be made by electronic transfer in a method to be directed by Defendant to Plaintiff for which Defendant's counsel shall file instruction on NYSCEF within five (5) days of entry of this Decision.

- Alternatively, Sale of The Marital Residence If Plaintiff Cannot Effectuate Buyout of Defendant's Interest

In the event Plaintiff does not proceed with a buyout of Defendant's interest in the Marital Residence, within the allotted 180 days, the Marital Residence shall be immediately listed for sale, with an agreed upon licensed real estate broker no more than twenty (20) days following the expiration of the 180 day time period to effectuate such purchase. Within ten (10) days of this Decision, the parties shall either file a stipulation as to the agreed real estate broker [*21]they will retain together to transfer the property if needed, or if they cannot agree to use one broker, they shall each file a letter designating their own real estate broker each will use to co-list the property, with both parties cooperating with each real estate broker. The property shall be listed for sale at a price recommended by the agreed to real estate broker, or the average of the recommendations by each of the co-brokers, shall remain listed until sold, and shall be relisted forthwith if a listing expires before a sale is effectuated or in the event that the parties enter into a contract of sale on which they do not close.

Within ten (10) days of this Decision, the parties shall either file a stipulation as to the agreed real estate attorney they will retain together to transfer the property if needed, or if they cannot agree to use one attorney, they shall each file a letter designating their own real estate attorney each will use. Both parties shall diligently and timely execute all documents necessary to effectuate the initial listing of the Marital Residence, or any subsequent listing, and shall diligently and timely execute any and all documents necessary to effectuate the sale of the Marital Residence, including but not limited to attending the closing of sale in person or through a power of attorney (in the event a party is physically incapable of signing or attending the closing). The parties shall accept any offer within 2.5% of the listing price from a bona fide purchaser, unless mutually agreed otherwise by the parties, in writing. In the event no viable offer within 2.5% of the asking price is received by the parties within 45 days of the listing, and unless otherwise agreed to by the parties, in writing, the asking price shall be reduced by 5%, and shall continue to be reduced by an additional 5% following each 45 day period thereafter. However, notwithstanding the above-referenced reductions in the sale price of the Marital Residence, the sales price shall never fall below 20% of the initial asking price, absent a mutual agreement of the parties in writing.

An open-house shall be permitted at least once per month, between the hours of 10:00 a.m. and 4:00 p.m., and Plaintiff shall make the home available for showings on a reasonable basis with lock box affixed to the house with showings presented with at least thirty (30) minutes advanced notice. Plaintiff shall keep the home broom-clean at closing, inside and out with landscaping maintained. It shall be the responsibility of the Plaintiff to clean out the home in advance of the closing. Upon sale of the Marital Residence, after subtracting closing costs, taxes, fees, customary seller's expenses, and any real estate attorney fees in the event the parties' choose to use one real estate attorney, Defendant shall receive a credit of $102,418.78 (as outlined herein-above for 50% of the paydown of the principal Mortgage balance, in addition to any additional Mortgage principal paydown and HELOC paydown not already taken into consideration herein) and thereafter the parties shall each receive half of the remaining net sale proceeds. As of the date of commencement, the Mortgage balance was $380,000.

Again, Defendant will be entitled to $2,614.63 per month from Plaintiff, representing her fifty percent (50%) share of the monthly mortgage payment of $5,229.25, beginning on May 1, 2026, until such time as the closing occurs for a sale or Plaintiff's buyout of Defendant's interest in the Marital Residence. Payments by Plaintiff to Defendant shall be made by electronic transfer in a method to be directed by Defendant to Plaintiff for which Defendant's counsel shall file instruction on NYSCEF within five (5) days of entry of this Decision.

While this Court confirms the Attorney-Referee's recommendation to permit the Plaintiff to purchase the Marital Residence, such request being made without opposition by Defendant and such findings being substantially supported by the trial record; this Court provides further the directives set forth herein-above to effectuate such purchase, and in the alternative, direct [*22]that the Martial Residence be sold to the extent the Plaintiff's intended buyout cannot be effectuated.

d. Spousal Maintenance

Generally, Plaintiff's requests spousal maintenance as follows: either (1) a lump sum of $494,734.44 of retroactive support, claiming to be a shortfall between what she should have been owed under the statutory guidelines and what was paid to her in unallocated and indirect support by Defendant since the date of commencement; or, (2) $11,295.54 per month for a period of six and one-quarter (6.4) years, or forty percent (40%) of the length of the marriage, with both options utilizing an expanded cap of $500,000.FN80 Defendant maintains that Plaintiff is entitled to five and one-half (5.5) years of maintenance and support, and instead was provided seven (7) years of support during the course of this litigation in excess of the statutory guidelines, including but not limited to unallocated support, carrying costs for the former marital residence, college costs for the three Children (for which he did not receive a credit), totaling $875,000 since commencement of the action, claiming that based on statutory maintenance guidelines, Defendant overpaid by approximately $350,000 and therefore should not have to pay further support to Plaintiff.FN81

The Attorney-Referee made a recommendation to this Court that Defendant pay to Plaintiff spousal maintenance based on: (1) a finding of Plaintiff's income to be $36,429; and, Defendant's income to be $1,908,851; (2) taking into consideration the factors outlined in DRL § 236(B)(6)(e)(1)(a-o) in exceeding the spousal maintenance cap to $500,000; and, (3) based on maintenance calculations provided as an exhibit to the Referee Report, directing that monthly payments be made by Defendant to Plaintiff in the amount of $11,942.06 for six (6) years to satisfy such maintenance obligations.FN82 However, this Court must modify the Attorney-Referee's recommendations regarding spousal maintenance for the reasons set forth herein-below.

- Relevant Legal Standard & Required Considerations

The Appellate Division, Second Department has noted that:

"The amount and duration of a maintenance award are a matter within the sound discretion of [the] 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. The court need not articulate every factor it considers, but it must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance" (see Kiani v. Kiani, 197 AD3d 1168 [2d Dept 2021]; see also Beyel v. Beyel, 173 AD3d 1129 [2d Dept 2019]).

New York State Domestic Relations Law § 236(B)(6)(e)(1) sets forth the statutory factors to be considered in awarding spousal maintenance, which the Court has considered as noted below:

"(1) The court shall order the post-divorce maintenance guideline obligation up to the income cap in accordance with paragraph c of this subdivision, 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 following factors, and adjusts the post-divorce maintenance guideline obligation accordingly based upon such consideration:

(a) the age and health of the parties;

As per the parties' Stipulation of Facts, Plaintiff was born on [Redacted] and is currently 60 years-old, and Defendant was born on [Redacted] and is currently 55 years-old.FN83 Neither party has disclosed a physical or mental health condition that would prevent them from working at their appropriate age, education and experience.

(b) the present or future earning capacity of the parties, including a history of limited participation in the workforce;

Both parties have professional degrees, with Plaintiff working minimally since the birth of her first child in 2002, as she was the primary caretaker of the parties Children, and with Defendant working consistently.

Plaintiff is a licensed occupational therapist; she received her undergraduate degree in occupational therapy from [Redacted], New York; and, she has been licensed as an occupational therapist since 1991.FN84

Currently, Plaintiff is an independent contractor, working only when there are referred evaluations for her to perform.FN85 Plaintiff claims her 2024 net income was $37,952, and her work frequency would fluctuate from full-time to part-time depending on the referrals sent to her.FN86 Notably, Plaintiff admitted, that during this litigation she has not looked for any other jobs which could potentially offer full-time employment, higher pay, or better benefits; and, the last time she actively looked for different employment was at the end of 2017 to early 2018, prior to commencement.FN87 Plaintiff also admitted that prior to the birth of her Children she made between $50,000 and $60,000 on average, while working "on-staff" at a preschool in Brooklyn, but claims that she has not applied to any "on-staff" jobs since the commencement of the subject litigation.FN88

Plaintiff did not mince words during her testimony, making clear that she has chosen to [*23]continue to work on a referral only basis, part-time, in order to have "autonomy" to attend Court and appear for these proceedings.FN89 While Plaintiff attempted to argue that she also required flexibility to be home with the Children when they are sick, relating to her choice not to pursue more "on-staff" employment that could offer higher earnings and potentially better benefits, this excuse was clearly unrelated to her choice in employment, as the youngest Children began college in September, 2022 and to date Plaintiff remains working part-time on a referral basis, with no further efforts made to pursue different employment.FN90

Defendant received his Doctor of Veterinary Medicine (DVM) degree from [Redacted] University; he completed his internship and residency training in veterinary neurology and internal medicine at the [Redacted] in New York City; he has been a licensed veterinarian since 1996; and, he received board certification in neurology in 2000 and in internal medicine in 2002.FN91

It is undisputed that Defendant's current business interests in G.V.S., and his yearly income as a licensed and active veterinarian and business owner have increased over the years of the parties' marriage, and significantly since the date of commencement of this litigation, with Defendant earning $1,908,851 in 2023, being the most recent tax return admitted into evidence at the time of trial in this matter.FN92 Moreover, it is undisputed that G.V.S. as a business entity grossed more than $40,000,000 in the 2024 tax year, as confirmed at trial by G.V.S.'s current Chief Financial Officer (CFO), I.T.FN93

(c) the need of one party to incur education or training expenses;

To the extent applicable, this Court has taken into consideration the need of either party to incur education or training expenses.

(d) the termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded;

This section is inapplicable, as the Children are emancipated and no child support award shall be addressed herein in connection with the subject maintenance award, and no adult dependent support has been requested or granted.

(e) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;

The record does not reflect that either party has engaged in wasteful dissipation of marital property.

(f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;

Prior to this action Plaintiff and Defendant resided at the Marital Residence, located in [Redacted], New York, where Plaintiff still resides to this day.FN94 From 2019 until present, Defendant has paid the carrying costs on the Marital Residence, including the mortgage, taxes and homeowners insurance, totaling $5,229.25 monthly.FN95 Following a domestic violence incident on July 27, 2017, the details of which are set forth herein-below, Defendant moved out of the marital residence and has not returned,FN96 currently residing in a separate home in [Redacted], New York, purchased for $1,050,000.FN97

(g) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law;

Both parties allege acts of domestic violence by the other, including the following incidents:

1. June, 2017 — Plaintiff claims Defendant went to Maryland to attend a conference, whereafter upon his return a Maryland police sergeant left a message on the home phone regarding Defendant's arrest at the conference, with Plaintiff requesting a copy of the arrest report from the Maryland arresting officer.FN98 After reviewing the report, Plaintiff confronted Defendant whereafter Plaintiff claims Defendant pushed the bedroom door back onto her, and reached for her purse attempting to take the report, whereafter Defendant put Plaintiff in a "bear hug" restraining her, with Plaintiff admitting at one point, to being on Defendant's back and grabbing him around the neck, and whereafter police were called to the home to pull Plaintiff and Defendant apart.FN99 Child protective services became involved as the Children were home, but Plaintiff refused to press charges against Defendant.FN100

2. July, 2017 — Defendant claims that Plaintiff assaulted him after he had advised her that he was charged with sexual assault in Maryland, after which Plaintiff began hitting him [*24]and jumping on him, and whereafter Plaintiff allegedly began screaming "help me", making false claims that Defendant put a gun and knife to Plaintiff's head.FN101 Thereafter, Plaintiff allegedly pushed Defendant down a flight of stairs in the home as Defendant attempted to get away from her, jumped on Defendant's back, and as police arrived jumped off of Defendant and began to scream again, "help me, help me".FN102 Defendant claimed he never owned a gun, never threatened Plaintiff with a knife, and both the order of protection and criminal charges brought against Defendant as a result of the subject incident were subsequently vacated and dropped.FN103

3. More sporadically, there was also allegations of a physical altercation between Defendant and the parties' child, J.B.; allegations that Defendant placed recording devices in the backpacks of the Children and around the Marital Residence; and allegations that Plaintiff found GPS trackers under her car, all in and around 2018.FN104

(h) the availability and cost of medical insurance for the parties;

The record reflects that the Plaintiff currently has health insurance through Defendant's employment, which will not be available to Plaintiff following entry of a judgment of divorce, as she is an independent contractor and does not have the benefit of health insurance.

(i) the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;

It is undisputed that the Plaintiff was the primary caretaker for the Children during the marriage and after the commencement of these proceedings, taking them to doctor's appointments, extracurricular activities, managing household tasks, grocery shopping, cleaning, getting the kids ready in the morning and night, etc.FN105 Caretaking of the Children was also done by a live-in nanny, who worked Monday through Friday, taking the children to preschool, picking them up, feeding them lunch and playing with them, with such live-in nanny services ending once the children were of "school age".FN106

Plaintiff began working part-time, doing contracting work once the youngest Children were two years old.FN107 In 2008, when Defendant opened his [Redacted] practice, Plaintiff worked as receptionist attending business meetings, veterinary conferences, and social [*25]events for the business.FN108

Currently, the parties' Children are emancipated and this Court was not provided with any claims from either Plaintiff or Defendant that any of the three Children have a mental disability as defined by New York State Mental Hygiene Law § 1.03, which would implicate the need for this Court to assess the issue of adult dependent support. There was no further testimony at trial regarding any other dependents that may inhibit a party's earning capacity.

(j) the tax consequences to each party;

To the extent applicable, this Court has taken into consideration the tax consequences to each party.

(k) the standard of living of the parties established during the marriage;

To the extent applicable, this Court has taken into consideration the standard of living of the parties, although minimal testimony was received at trial regarding same.

(l) the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage;

See (i) herein.

(m) the equitable distribution of marital property and the income or imputed income on the assets so distributed;

The most significant martial asset being distributed is the martial interest in G.V.S., of which Plaintiff will be receiving in the form of a distributive award by installment payments to be made by Defendant to Plaintiff on a monthly basis.

(n) the contributions and services of the payee as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and

See (i) herein. Moreover, as set forth herein-above, Plaintiff made some direct contributions to G.V.S. as a business during the late stages of the parties' marriage. These direct contributions included but were not limited to: participating in meetings, interviewing potential staff, helping to find the location for the subject hospital, with Plaintiff's involvement with G.V.S. being a total of 18 months, ending in September 2017, with G.V.S. opening in March 2018.

(o) any other factor which the court shall expressly find to be just and proper."

As set forth herein-above, Defendant has paid (and continues to pay) the carrying costs on the Marital Residence, including the mortgage, taxes and homeowners' insurance, totaling $5,229.25 monthly.FN109 Moreover, Defendant has paid Plaintiff $5,000 in unallocated support for the last 7 ½ years, being $60,000 per year and $450,000 total since the support started in 2019.FN110 Defendant further paid for home repairs to the Marital Residence, when necessary, and has paid college costs for all three Children, [*26]including tuition and living expenses.FN111

- Imputation of Income

As a preliminary matter, for purposes of calculating the presumptively correct statutory maintenance owed, the Attorney-Referee used the parties 2023 tax returns to provide incomes for said calculations, being $36,429.00 for Plaintiff and $1,908,851 for Defendant.FN112 However, for purposes of calculation of support obligations herein, this Court has imputed an annual income to Plaintiff of $60,000.00. This determination rejects and modifies that portion of the Attorney-Referee's recommendation to impute her at her 2023 income level.

In arriving at $60,000.00 as the imputed income of Plaintiff, as set forth herein-above, this Court has considered the education background, work history, financial submissions related to Plaintiff's recent gross yearly income, as well as the testimony of the parties as it relates to Plaintiff's earning capacity and health of Plaintiff. Plaintiff is a licensed occupational therapist, and has been since 1991. Her work history reflects that she took a step back from working upon the birth of her Children, being the primary caregiver and homemaker, and eventually returning on a part-time contracting basis.

However, Plaintiff has admittedly made no efforts to return to the workforce in a full-time role, choosing instead to continue to work on a referral only basis, part-time, in order to have "autonomy" to attend Court and appear for these proceedings. While Plaintiff attempted to argue that she also required flexibility to be home with the Children when they are sick, this excuse was clearly unrelated to her choice in employment, as the youngest Children began college in September, 2022 and to date Plaintiff remains working part-time on a referral basis, with no further efforts made to pursue different employment.

Significantly, over twenty years prior to the entry of this Decision, prior to the birth of her Children Plaintiff testified that she made between $50,000 and $60,000 on average, while working "on-staff" at a preschool in Brooklyn, but again admits that she has not applied to any "on-staff" jobs since the birth of her Children. This Court determines that the record supports if Plaintiff sought "on-staff" full-time work, with her knowledge, education and experience, would be able to earn at least $60,000, and therefore imputes that figure as her annual income (see Spano v. Spano, 168 AD3d 857 [2d Dept 2019]; see also, DeSouza-Brown v. Brown, 71 AD3d 946 [2d Dept 2010]; see also Bragar v. Bragar, 277 AD2d 136, 137 [1st Dept 2000]; Weinheimer v. Weinheimer, 100 AD3d 1565, 1566 [4th Dept 2012; Liepman v. Liepman, 279 AD2d 686, 688-689 [3d Dept 2001]).FN113

Based on the testimony of the parties and witnesses, and the documents entered into [*27]evidence at trial, this Court confirms the Attorney-Referee's recommendation to use Defendant's 2023 tax return, with an income being $1,908,851 being the most recent tax return provided to the Court, to determine the appropriate spousal maintenance calculation.

The above-referenced imputed incomes will be used for the calculation of support obligations set forth herein-below.

- Maintenance Award & Calculation

The statutory guidelines calculation for spousal maintenance is as follows:

Plaintiff:

$60,000.00 Income

$ 4,590.00 FICA Taxes

$55,410.00 Net CSSA Income

Defendant:

$1,908,851.00 Income

$53,976.20 FICA Taxes

$1,854,874.80 Net CSSA Income

Net Combined Parental Income: $1,910,284.80

Applying the statutory cap of $228,000.00 for Defendant's income and the formula when Payor is not paying child support:

A. 1-Multiply Maintenance Payors Income by 30% ($228,000.00 x 30% = $68,400.00)

2-Multiply Maintenance Payee's Income by 20% (60,000.00 x 20% = $12,000.00)

Subtract Line 2 from Line 1: $56,400.00

B. Subtract Maintenance Payee's Income from 40% of Combined Income:

$228,000.00 Payor's Income

+ $55,410.00 Payee's Income

$283,410.00 Combined Income

x 40%

$113,364.00

$55,410.00 Payee's Income

$57,954.00

The lesser of the formulas A and B provides the presumptively correct amount of spousal maintenance requiring Defendant to pay Plaintiff $56,400.00 annually, equating to $4,700.00 monthly. As the parties have been married for 16 years and 10 months (202 months), application of DRL § 236(B)(6)(f) as to the duration of the spousal maintenance would require an award between 30% and 40% of the parties' marriage, being 60.6 months to 80.8 months.

The Appellate Division has set forth the manner within which a trial court may award post-judgment spousal maintenance that deviates from the presumptively correct amount calculated utilizing the statutory formula:

" '[I]n any matrimonial action, the court, upon application by a party, shall make its award for post-divorce maintenance pursuant to the provisions' set forth in the statute (Domestic Relations Law § 236 [B] [6] [a]; see Hughes v. Hughes, 198 AD3d 1170, 1173, 156 N.Y.S.3d 444 [3d Dept. 2021]). In setting the amount of the award, the provisions of Domestic Relations Law § 236 (B) (6) require that the court first determine the presumptive amount of maintenance pursuant to the statutory formulas in paragraph [*28](c) and, second, determine whether other factors under paragraphs (d) and (e) support deviating from the presumptive amount (see Mahoney v. Mahoney, 197 AD3d 638, 639, 152 N.Y.S.3d 727 [2d Dept. 2021]; Iannazzo v. Iannazzo [appeal No. 2], 197 AD3d 959, 961-962, 152 N.Y.S.3d 756 [4th Dept. 2021]). Where there is a deviation from the presumptive amount reached by application of the relevant formula, the court should explain the reasons for that deviation (see generally Severny v. Severny, 210 AD3d 419, 419, 175 N.Y.S.3d 729 [1st Dept. 2022]). '[T]he court need not analyze and apply each and every factor set forth in the statute,' but it 'must provide a reasoned analysis of the factors it ultimately relies upon in awarding maintenance' (Gordon-Medley v. Medley, 160 AD3d 1146, 1147, 74 N.Y.S.3d 412 [3d Dept. 2018]; see Gutierrez v. Gutierrez, 193 AD3d 1363, 1364, 143 N.Y.S.3d 275 [4th Dept. 2021]; Johnston v. Johnston, 156 AD3d 1181, 1184, 68 N.Y.S.3d 178 [3d Dept. 2017], appeal dismissed 31 NY3d 1126, 81 N.Y.S.3d 350, 106 N.E.3d 733 [2018], lv denied 32 NY3d 1053, 88 N.Y.S.3d 408, 113 N.E.3d 464 [2018])" (Renzi v. Renzi, 217 AD3d 1336 [4th Dept 2023]).

Here, this Court rejects and modifies the Attorney-Referee recommendation, and declines to deviate from the presumptively correct spousal maintenance, awarding Plaintiff from Defendant, spousal support in the monthly amount of $4,700.00 per month for 72 months (six years) with payments to commence on the first day of each month following the date of entry of this Decision, with payments being made by electronic transfer in a method to be directed by Plaintiff to Defendant for which Plaintiff's counsel shall file instruction on NYSCEF within five (5) days of entry of this Decision. In making this determination, this Court has reviewed the presumptively correct spousal maintenance award and determines that amount to sufficient without modification based upon the review of the statutory factors set forth hereinabove, thus rejecting and modifying that portion of the Attorney-Referee's recommendations as to spousal maintenance.

e. Equitable Distribution Of Marital Seed Money Used To Create "G.V.S."

Plaintiff seeks 50% of the funds obtained from the sale of [Redacted] (hereinafter "A.S.C") and [Redacted] (hereinafter the "B.P.") (hereinafter "Seed Money"), being the prior marital businesses of the parties, with such Seed Money being used to invest in and create G.V.S. The Attorney-Referee asserts that such argument was only first raised and requested by Plaintiff within Plaintiff's Brief, following the conclusion of the trial.FN114 Moreover, the Attorney-Referee confirmed that there was no evidence presented at trial, either by testimony or documentation, that Plaintiff opposed the use of such Seed Money to form G.V.S., thereby making it clear that the Seed Money used was voluntarily contributed from marital funds to the creation of G.V.S.FN115 As a result, the Attorney-Referee's recommendation to this Court regarding the equitable distribution of Seed Money was to deny such request, being that Plaintiff was already provided her share of the marital portion of G.V.S., such marital value clearly taking into [*29]consideration the martial funds used to create the business.FN116 This Court confirms the Attorney-Referee's recommendation as set forth herein-below, as such recommendation is substantially supported by the record.

While the Joint Statement of Disposition, filed prior to trial, includes arguments from Plaintiff that "G.V.S. would not be the multi-million dollar business it is today" without the Seed Money from the prior businesses, Plaintiff's request for equitable distribution of G.V.S. within that same document takes into consideration the Seed Money invested into G.V.S., and Plaintiff's involvement in the business and as a mother and homemaker, in supporting a single request for a distributive award to Plaintiff of a percentage of the marital share of G.V.S.FN117 This distribution has already been reviewed as set forth herein-above, with the unopposed May 2018 Valuation of the Neutral Valuation Expert taking into account the Seed Money used to create G.V.S. within its valuation methods. Therefore, although Plaintiff now makes a claim within Plaintiff's Brief for entitlement to a further fifty percent (50%) of the value of the subject Seed Money, her initial request was that this Court consider the value of the Seed Money as part of the value of the martial portion of G.V.S. to be distributed, with such consideration being provided in the analysis of distributing the interests in G.V.S. as set forth herein-above. This Court agrees that providing a further distributive award to Plaintiff for the value of fifty percent (50%) of the Seed Money would be tantamount to double counting.

Moreover, while Plaintiff did testify that in her opinion she had "no choice" as to whether or not the proceeds from A.S.C or the B.P. would be used to invest in G.V.S.,FN118 this Court finds such testimony unavailing and agrees with the Attorney-Referee in that there is no testimony within the record that Plaintiff voiced opposition to use of the Seed Money to invest in G.V.S. Consequently, this Court confirms the Attorney-Referee's recommendation, being substantially supported by the record, and denies Plaintiff's post-trial claim for a distributive award of 50% of the subject Seed Money.

f. Attorneys Fees & Legal Costs

- Parties' Positions & Attorney-Referee's Recommendations

The Referee Report asserted that no testimony was elicited regarding requests for attorneys' fees and litigation costs, and the only positions provided by either party were within the post-trial submissions, being Plaintiff's Brief and Defendant's Brief.

However, this Court notes that the parties' positions regarding attorneys' fees were also illustrated in the Joint Statement of Disposition,FN119 filed with the Court prior to trial, and trial testimony was elicited from the parties as follows: (1) Plaintiff claimed she paid approximately $10,000 — $20,000 in legal fees through the course of the litigation, claiming such payment could have been taken from the parties HELOC on the Marital Residence, or a personal loan [*30]from her mother;FN120 (2) Plaintiff admitted that all other costs associated with the litigation, including expert and attorneys' fees were paid for by Defendant;FN121 and, (3) Defendant claims that he has paid all of Plaintiff's attorneys' fees, without knowing exactly how much was paid, including approximately $277,000 in expert fees to the Neutral Valuation Expert and $15,000 in property appraisals.FN122

In essence, Plaintiff argues that she should not be required to reimburse Defendant for any counsel or expert fees he paid on her behalf throughout the pendency of the action based on the disparity of income between the parties and Defendant's actions in protracting the litigation, notwithstanding any distributive award received in equitable distribution. Additionally, while this Court notes that Plaintiff mentions a balance of outstanding legal fees of $2,461.92 (as of May 1, 2025),FN123 claiming such balance does not include fees associated with trial preparation, eight days of trial, and the preparation of the Plaintiff's Brief,FN124 she does not affirmatively request that this Court direct Defendant to pay the outstanding balance of fees, or any additional fees related to the subject trial,FN125 only requesting that there not be a reallocation of previously paid for costs and fees.

Defendant alternatively argues that he has paid for all of Plaintiff's attorneys' fees to date, as well as the cost of expert fees, totaling $475,944.30.FN126 It appears Defendant relies upon the testimony of J.M.B. as set forth herein-above, which provided approximate estimations of the total cost of neutral expert fees, the retainer agreements between Plaintiff and Plaintiff's [*31]counsel,FN127 and itemized billing statements of Plaintiff's counsel FN128 (hereinafter collectively "Plaintiff's Retainer Agreements & Billing Statements") to provide this figure. While admitting he is the monied spouse, Defendant claims that he has already significantly leveled the playing field, requesting Plaintiff be responsible for 20%-25%FN129 of the total costs and fees, being $95,188.86-$118,986.08. Defendant provides no invoices or billing statements related to payment of his own attorneys' fees, nor does it appear he requests that any portion of those fees be paid for by Plaintiff.

The Attorney-Referee provided a recommendation to this Court regarding fees as follows: (1) that Defendant be responsible for paying the Plaintiff's currently known outstanding attorneys' fees in the amount of $2,461.92; and, (2) with respect to payment of the unarticulated attorneys' fees for trial preparation, and the eight days of trial in this matter, that Plaintiff would be permitted to submit a post-trial motion, for the Court to make a determination regarding further fees. Notably, no recommendation was made regarding the previous attorneys' fees and litigation costs paid for by Defendant, and the request by Plaintiff to have those costs and fees remain the responsibility of Defendant, or the request of Defendant to reallocate those fees.

Based on the foregoing, and the reasons set forth herein-below, this Court must now reject and modify the Attorney-Referee's recommendations.

- Legal Standard & Application

The Appellate Division Second Department has noted how trial court should determine if an award of attorneys' fees is warranted in a matrimonial action:

"In a matrimonial action, an award of attorney's fees is a matter committed to the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case (see Prochilo v. Prochilo, 165 AD3d 1304, 84 N.Y.S.3d 786; Patete v Rodriguez, 109 AD3d 595, 599, 971 N.Y.S.2d 109). The purpose of Domestic Relations Law § 237(a) is to redress the economic disparity between the monied spouse and the nonmonied spouse by ensuring that the latter will be able to litigate the action on equal footing with the former (see Chesner v. Chesner, 95 AD3d 1252, 1253, 945 N.Y.S.2d 409; Finnan v. Finnan, 95 AD3d 821, 943 N.Y.S.2d 559; Prichep v. Prichep, [*32]52 AD3d 61, 64—65, 858 N.Y.S.2d 667). In determining whether to award attorney's fees, the court should review the financial circumstances of both parties, together with all of the other circumstances of the case, including, inter alia, the relative merit of the parties' positions, and whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation (see Prochilo v. Prochilo, 165 AD3d 1304, 84 N.Y.S.3d 786; Chesner v. Chesner, 95 AD3d 1252, 945 N.Y.S.2d 409; Prichep v. Prichep, 52 AD3d at 64—65, 858 N.Y.S.2d 667)." (Brockner v Brockner, 174 AD3d 567, 568 [2d Dept. 2019]).

When seeking an award of attorneys' fees, parties are required to submit itemized billing statements as proof of the attorneys' fees incurred, both to demonstrate substantial compliance with 22 NYCRR 1400.2 and 1400.3 and to establish the "extent and value of [the] services" rendered (Yakobowitz v. Yakobowicz, 217 AD3d 733 [2d Dept 2023] [internal citations omitted]). Accordingly, Yakobowtiz, Id., requires the movant to file the executed retainer agreement between the movant and movant's counsel, statement of client's rights and responsibilities, along with the billing invoices. By doing so, the reviewing court is afforded the opportunity to confirm that 22 NYCRR § 1400.2 FN130 was complied with by movant's counsel with the presentation, execution and return of the statement of client's rights and responsibilities prior to the execution of a retainer agreement with the movant; that 22 NYCRR § 1400.3 FN131 was complied with by movant's counsel with the execution of a retainer agreement with movant; and through the presentation of invoices of the movant's counsel to movant, confirmation that said invoices comport with the related retainer agreement.

Here, the recommendation that Defendant pay Plaintiff's outstanding legal fees of [*33]$2,461.92 and that Plaintiff be permitted to file a post-trial motion, regarding further requests for fees, are relief that was never sought by Plaintiff and must be rejected. At a basic level, this Court agrees with the Attorney-Referee that Plaintiff's Retainer Agreements & Billing Statements comply with NYCRR §§ 1400.2 and 1400.3, such documents being entered into evidence at the time of trial, and notes further that Plaintiff has generated an extensive amount of legal fees thereafter paid for by Defendant. This Court has taken into consideration the extensive procedural history of this matter, including motion practice, and agrees with the Attorney-Referee that the record confirms Defendant has engaged in unreasonable or excessive litigation conduct at times,FN132 being the cause of continued litigation and the incurring of further legal fees.

In reviewing the fee applications in this matter, taking into account and balancing all equities, this Court hereby determines that notwithstanding the distributive award set forth herein-above, Plaintiff remains the less-monied spouse and any request by Defendant to reallocate attorneys' fees, expert fees and litigation costs previously paid by him in this matter is hereby denied. However, to the extent either party has outstanding attorneys' fees owed to their respective counsel to date that have not been paid, including any fees associated with the subject trial in this matter, both parties are responsible for paying such fees without further contribution from the opposing party.

Consequently, this Court rejects the Attorney-Referee's recommendations regarding the allocation of attorneys' fees and litigation costs, finding that the recommendations were not substantially supported by the record, and makes the determinations as set forth herein-above.

D. Other Relief.

Any relief sought by either party, pertaining to the subject trial in this matter, specifically not granted or otherwise addressed herein is denied.

* * *

Based upon the foregoing, it is hereby

ORDERED that Motion Sequence Nos. 7-8 are denied in their entirety as set forth herein-above; and it is further

ORDERED that the Court, based on its own obligation, has confirmed, rejected and modified those portions of the Referee Report as set forth herein-above, with directives as set forth herein-above, and in doing so has addressed and resolved all remaining issues arising out of the requested dissolution of the parties' marriage as stated herein-above, and the parties are directed to comply with the directives set forth; and it is further

ORDERED that the terms set forth in the following stipulations shall be incorporated by reference, but not merged, into a judgment of divorce to be entered by this Court: (1) Grounds Stipulation, dated August 9, 2018, filed as NYSCEF Doc. No. 9; (2) Partial Financial Stipulation, dated June 20, 2025, filed as NYSCEF Doc. No. 537 and, (3) this Decision and Order, dated April 3, 2026; and it is further

ORDERED that by April 10, 2026, Plaintiff's counsel shall file with the Court, either on consent of Defendant, or with notice of settlement served on Defendant, via e-mail and NYSCEF filing with proof of service filed the same day, the following documents: (1) a proposed findings of fact and conclusions of law; (2) a proposed judgment of divorce; and, (3) all other ancillary documents needed for this Court to enter a judgment of divorce; and it is further

ORDERED that Plaintiff shall serve Defendant, via e-mail and NYSCEF filing, this Decision and Order with Notice of Entry by April 6, 2026, and shall file an Affidavit of Service on NYSCEF by that date; and it is further

ORDERED that to the extent any relief sought has not been granted, it is expressly denied.

The foregoing constitutes the Decision and Order of the Court.

Dated: April 3, 2026

White Plains, New York

ENTER:

HON. JAMES L. HYER, J.S.C.