Supreme Court, Westchester County

Decided on April 24, 2026

Index No. [Redacted]

James L. Hyer, J.

[*1]

Relevant factual and Procedural History

This action was commenced on June 18, 2025, with the Plaintiff's filing of a summons with notice including all required notices, to wit: (1) notice of automatic orders; (2) notice concerning continuation of health care coverage; and, (3) notice of maintenance guidelines (hereinafter collectively "Summons"),^FN1 seeking a dissolution of the parties' marriage pursuant solely to New York State Domestic Relations Law (hereinafter "DRL") § 170(7), based on an irretrievable breakdown of the parties relationship for a period of at least six months and requesting the following ancillary relief:

"That the Defendant shall have custody of the unemancipated Child of the marriage, NA. R., born on [Redacted].

That the Plaintiff shall have reasonable rights of visitation with the Child away from the custodial residence.

That the order, dated September 12, 2018, of the Family Court of Westchester County shall be continued, and the Family Court shall have concurrent jurisdiction with the Supreme Court with respect to any future issues of maintenance, child support, custody and visitation.

That the parties do not require maintenance and no claim will be made by either party for [*2]maintenance.

That the parties do not require payment of counsel and experts' fees and expenses.

That the Court grant such other and further relief as the Court may deem fit and proper.

The parties have divided up the marital property, and no claim will be made by either party under equitable distribution."

On July 4, 2025, Defendant was personally served with the Summons in this matter, confirmed by the affidavit of service effectuating same, which included a photograph of the Defendant at the time of service (hereinafter "Affidavit of Service").^FN2

On July 7, 2025, Plaintiff filed the following uncontested divorce documents, to wit: (1) a request for judicial intervention — uncontested matrimonial action; (2) a note of issue — uncontested joint divorce; (3) affidavit of Plaintiff; (4) affirmation of regularity; (5) certificate of dissolution; (6) a proposed findings of fact and conclusions of law; (7) a child support summary form — UCS-111; (8) a proposed judgment of divorce; and, (9) a New York State case registry filing form (hereinafter "Proposed Divorce Documents").^FN3 Based on a review of the documents submitted to this Court, Plaintiff was intending on proceeding in this matter as an uncontested divorce proceeding. However, Defendant had not yet appeared or answered the Pleadings in any way; and, Defendant had not yet been held in default based on said failure to appear.

On January 29, 2026, an Order^FN4 was entered directing that a preliminary conference take place on February 13, 2026, at 2:00 p.m., and further directed that Plaintiff serve a copy of the Court Order on Defendant by personal service and overnight traceable delivery, no later than February 6, 2026.

On February 13, 2026, a conference was held wherein appearances were made by Plaintiff, Plaintiff's counsel and Defendant failed to appear or to request an adjournment of the conference. Moreover, Plaintiff's counsel, filed three separate affirmations of service,^FN5 confirming service of the Court's Order scheduling the preliminary conference was effectuated by personal service, overnight traceable delivery and e-mail on the Defendant. As Defendant failed to appear despite such service, the conference proceeded in Defendant's absence, a so-ordered transcript for which has been filed,^FN6 and an order (hereinafter "Inquest Scheduling Order"),^FN7 was entered scheduling an inquest to be held in this matter providing the following [*3]including a clear directive that the inquest would include including but not limited to those specifically enumerated in the order:

"ORDERED that the Defendant is in default; and it is hereby

ORDERED that an Inquest shall be held on April 8, 2026, at 2:00 p.m., wherein all parties and counsel must appear in-person to address all of the issues pending before this Court pertaining to this action, including but not limited to: (1) grounds for dissolution of the parties' marriage; (2) equitable distribution of marital property; (3) declaration of separate property; (4) claims of dissipation; (5) spousal support and maintenance; (6) child custody, access and support; (7) resumption of pre-marriage surnames; (8) attorneys' fees and litigation expense requests; and (9) any other issues arising out of the requested dissolution of the parties' marriage; and it is further

ORDERED that by March 27, 2026, both parties shall file with the Court and serve upon each other via overnight delivery the following: (1) Witness List for all witnesses to provide testimony at the Inquest with the understanding that if witnesses are not disclosed they will precluded from testifying at the Inquest; and (2) Exhibit List with copies of all exhibits to be utilized at the Inquest with the understanding that of disclosure is not made pursuant to this directive exhibits will be precluded at Inquest; and it is further

ORDERED that by February 20, 2026, Plaintiff shall serve Defendant with a copy of this Order with Notice of Entry on Defendant via overnight traceable delivery, and file proof of service with the Court copies of the overnight tracking slip; and it is further

ORDERED that Plaintiff shall order a copy of the Court Transcript and submit to the Court to be so ordered by March 13, 2026.

The foregoing constitutes the Decision and Order of the Court."

On April 7, 2026, Plaintiff's counsel filed the following documents: (1) Plaintiff's statement of net worth;^FN8 (2) Exhibits 1-3;^FN9 (3) Affidavit of Service of Inquest Scheduling Order;^FN10 (4) duplicate copies of Exhibits 1-3;^FN11 (5) duplicate copy of the Affidavit of Service of Inquest [*4]Scheduling Order;^FN12 (6) Exhibit 4;^FN13 and, (7) Retainer Agreement.^FN14

Despite the Inquest Scheduling Order directing that all pre-inquest disclosure be filed and served on opposing parties by a date specific, with proofs of service filed with this Court, Plaintiff's counsel filed no proof of service of any pre-inquest disclosure on Defendant despite having filed several exhibits. Also, Plaintiff's counsel filed no witness list.

Inquest

On April 8, 2026, an inquest was held before the undersigned wherein appearances were made by Plaintiff, Plaintiff's counsel, with Defendant failing to appear or request an adjournment. Having been presented with proof of service of the Inquest Scheduling Order on Defendant, this Court proceeded with the inquest in the absence of Defendant. A court transcript of the inquest was filed (hereinafter "Inquest Transcript").^FN15

At inquest, Plaintiff was the only witness to provide testimony and the following five exhibits were marked and moved into evidence:^FN16

1. Plaintiff's Statement of Net Worth;

2. Plaintiff's 2024 Income Tax Return;

3. Plaintiff's 2025 W-2;

4. Plaintiff's 2026 Paystubs; and,

5. New York City Support Collection Unit Check, dated 5/20/2025.

Legal Analysis

A. Witness Credibility.

The Second Department Appellate Division has held that the determination of witness credibility is to be determined by the trier of fact:

"The credibility of the witnesses, the reconciliation of conflicting statements, a determination of which should be accepted and which rejected, the truthfulness and accuracy of the testimony, whether contradictory or not, were issues for the trier of the facts. The memory, motive, mental capacity, accuracy of observation and statement, truthfulness and other tests of the reliability of witnesses can be passed upon with greater safety by a trial judge who sees and hears the witnesses than by appellate judges who simply read the printed record" (Barnet v. Cannizzaro, 3 AD2d 745 [2d Dept 1957] [internal citations omitted]).

It has been recognized that in the context of matrimonial proceedings, "[s]ince the court had the opportunity to view the demeanor of the witnesses at the hearing, it was in the best [*5]position to gauge their credibility, and its resolution of credibility issues is entitled to great deference on appeal" (Lieberman v. Lieberman, 21 AD3d 1004 [2d Dept 2005] [internal citations omitted]).

Based upon the demeanor and substance of the testimony of Plaintiff, the Court finds that Plaintiff is a credible witness. The Court made this determination based upon an assessment of the Plaintiff's character, temperament and sincerity.

B. Plaintiff's Request that a judgment be entered granting Plaintiff a divorce in favor of Plaintiff and against Defendant, dissolving forever the bonds of matrimony existing between Plaintiff and Defendant upon the grounds of the Irretrievable Breakdown of the Relationship pursuant to DRL 170(7).

Pursuant to New York State Domestic Relations Law (hereinafter "DRL") § 170(7):

"An action for divorce may be maintained by a husband or wife to procure a judgment divorcing the parties and dissolving the marriage on any of the following grounds:

* * *

(7) The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce [emphasis added]."

A spouse's statement under oath that the marriage was irretrievably broken for a period of six months is, by itself, sufficient to establish a cause of action for divorce as a matter of law (see Hoffer-Adou v Adou, 121 AD3d 618, 619 [1st Dept 2014]).

However, even in the event such testimony is provided by a spouse seeking a dissolution pursuant to DRL § 170(7), as noted by the Appellate Division, Second Department, such relief may not be granted unless the issues set forth in the statute arising out of the requested dissolution of the parties' marriage have been addressed by stipulation or by decision of the trial court:

"We conclude in appeal No. 1 that the court properly denied that part of plaintiff's motion for summary judgment seeking a divorce pursuant to Domestic Relations Law § 170(7). The requirements for a divorce under that section are (1) a statement under oath by one party that the relationship has broken down irretrievably for a period of at least six months; and (2) a resolution of 'the economic issues of equitable distribution of **857 marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage' (Id.).

* * *

Nevertheless, plaintiff is not entitled to summary judgment under Domestic Relations Law § 170(7) at this juncture of the litigation. The statute provides that '[n]o judgment of divorce shall be granted under this subdivision unless and until' the ancillary economic and custodial issues 'have been resolved by the parties, or determined by the court and [*6]incorporated into the judgment of divorce' (§ 170[7] ), and here the ancillary issues have not been resolved by the parties or determined by the court (see Palermo, 35 Misc 3d 1211[A], 2011 NY Slip Op. 52506[U], 2011 WL 7711557, *15; A.C., 32 Misc 3d at 308, 927 N.Y.S.2d 496)" (Trbovich v. Trbovich, 122 AD3d 1381 [2d Dept 2014]).

The decision in Trbovich, [Id.], correctly took into consideration not only the express statutory language, but the legislative intent which clearly reflected the understanding that the adoption of a means to obtain a judgment of divorce without asserting fault would require that all major ancillary issues arising out of the sought after divorce would be resolved, as noted in the Introducer's Memorandum in Support of the legislation which resulted in DRL § 170(7):

"PURPOSE OR GENERAL IDEA OF THE BILL:

This bill would allow a judgment of divorce to be granted to either a husband or wife without assigning fault to either of the parties. However, a divorce could only be granted after the major ancillary issues have been resolved.

JUSTIFICATION:

This legislation enables parties to legally end a marriage which is, in reality, already over and cannot be salvaged. Its intent is to lessen the disputes that often arise between the parties and to mitigate the potential harm to them and their children caused by the current process. Because a resolution of all the major issues must be reached before a divorce judgment is granted, this legislation safeguards the parties' rights and economic interests . [emphasis added]" (New York Bill Jacket, 2010 S.B. 3890, Ch. 3846).

Based upon the submissions made to this Court, along with the testimony and evidence received at the Inquest, this Court determines that Plaintiff credibly testified that the parties' relationship has irretrievably broken down for a period in excess of six months prior to the commencement of this action:

"[Redacted]: And when did you marry the Defendant? Let me rephrase the question, your Honor. Were you married to the Defendant on September 20, 1986, in Bronx County, New York State?

C. R.: Yes.

* * *

[Redacted]: Is it true that the relationship between you and Ms. N. R., your spouse, has broken down irretrievably for a period of at least six months?

C. R.: Yes.

[Redacted]: And has this breakdown continued for at least six months before you commenced this action for divorce?

C. R.: Yes.

[Redacted]: Is it your testimony that there is no hope or possibility of reconciling with [*7]your spouse?

C. R.: Yes."^FN17

Nonetheless, Plaintiff's request for a dissolution of the parties' marriage must be denied, to the extent that a judgment cannot be entered granting Plaintiff a divorce in his favor and against Defendant, upon the grounds of the Irretrievable Breakdown of the Relationship pursuant to DRL § 170(7). As will be discussed herein, this Court was not provided with sufficient testimony and evidence at inquest to address the issues of equitable distribution of marital property, the allocation of marital debt, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses, or custody and visitation with the infant child of the marriage. Accordingly, this Court lacks the ability to enter a judgment of divorce at this time.

C. Plaintiff's Requests Pertaining to Equitable Distribution of Marital Assets, Declaration of Separate Property and Allocation of Debts.

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 (see Domestic Relations Law § 236[B][5][a]). In determining the equitable distribution of marital property, the court is required to consider 14 specific factors and may take into account any other factor the court finds just and proper (see Domestic Relations Law § 236[B][5][d]). The court is obligated to render a decision in which it sets forth the factors it considered and the reasons for its decision, a requirement that cannot be waived (see Domestic Relations Law § 236[B][5][g]). 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 (see Gape v. Gape, 110 AD2d 621, 487 N.Y.S.2d 111; see also Kluge v. Kluge, 159 AD2d 968, 552 N.Y.S.2d 771). 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 (see Madu v. Madu, 135 AD3d 836, 837, 24 N.Y.S.3d 678; McLoughlin v. McLoughlin, 74 AD3d 911, 915, 903 N.Y.S.2d 467)" (Kaufman v Kaufman, 189 AD3d 31, 52 [2d Dept 2020]).

DRL § 236[B][5] notes, in pertinent 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 [*8]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 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."

It is further appropriate for the Court to allocate responsibility for the payment of debts between the parties involved in a matrimonial action (see Goddard v. Goddard, 256 AD2d 545 [2d Dept 1998]; see also Dellafiora v. Dellafiora, 54 AD3d 715 [2d Dept 2008]).

Based upon the submissions made to this Court, along with the testimony and evidence received at the inquest, this Court was not provided with any cognizable basis to make a determination as to the identification of assets held by the parties, to then made determinations as to which assets are marital or separate in nature, and to then make declarations of separate property and determinations as to equitable distribution of marital property, nor to engage in a similar review of any outstanding debts of the parties to determine the proper allocation of responsibility for same. Notably, during the inquest, neither Plaintiff or Plaintiff's counsel referenced any assets or debts, nor was any request made as to the manner within which this Court would made determinations as to declaration of separate property, equitable distribution of marital property or allocation of debts.

While Plaintiff's statement of net worth (hereinafter "Plaintiff's SNW") was admitted into evidence as exhibit 1, it was not certified by Plaintiff's counsel, as the notary public who notarized Plaintiff's signature signed their name on the line where the attorney certification was to be placed. While assets including two financial accounts were listed, in section IV(A) 2.1 and 3.1, the account set forth in 3.1 included no account number and neither were referenced during the inquest. Further, the one liability was set forth in section V(A)(1.1), no amount of debt at time of commencement was listed, nor was this liability addressed at inquest.

As DRL § 170(7) requires equitable distribution of marital property (and implicitly allocation of marital debt) to be resolved prior to the entry of a judgment of divorce on the ground of irretrievable breakdown of the parties' relationship, and that is the only ground asserted by Plaintiff in his Summons, for this reason alone, Plaintiff's request for the entry of a judgment of divorce must be denied.

D. Plaintiff's Request as to Spousal Support and Maintenance.

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 (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]).

Nonetheless, a party in a matrimonial action may waive spousal maintenance and support (see Messina v. Messina, 533 N.Y.S.2d 298 [2d Dept 1988]).

Based upon the submissions made to this Court, along with the testimony and evidence received at the inquest, this Court was not provided with any cognizable basis to make a determination as spousal support and maintenance, nor did Plaintiff or Plaintiff's counsel make any requests as to this issue, either as to the grant of an award of support or the request that same be waived. Notably, Section III of Plaintiff's SNW listed no income. At inquest, several documents pertaining to Plaintiff's income were admitted into evidence including Plaintiff's 2024 income tax return as exhibit 2, plaintiff's 2025 W-2 as exhibit 3, and plaintiff's pay summary as exhibit 4. However, no evidence or testimony was provided pertaining to Defendant's income or the calculation of presumptively correct spousal maintenance and/or deviation therefrom.

As DRL § 170(7) requires spousal support to be resolved prior to the entry of a judgment of divorce on the ground of irretrievable breakdown of the parties' relationship, and that is the only ground asserted by Plaintiff in his Summons, for this reason alone, Plaintiff's request for the [*9]entry of a judgment of divorce must be denied.

E. Child Custody.

In making custody determinations, the Appellate Division Second Department has provided the following guidance:

"In adjudicating custody and visitation rights, the most important consideration for the court is the best interests of the children (see Eschbach v. Eschbach, 56 NY2d 167, 172, 451 N.Y.S.2d 658, 436 N.E.2d 1260). In determining the best interests of the children, the court must review the 'totality of circumstances' (Friederwitzer v. Friederwitzer, 55 NY2d 89, 95—96, 447 N.Y.S.2d 893, 432 N.E.2d 765). The court's determination depends to a great extent upon its assessment of the credibility of the witnesses and upon the character, temperament, and sincerity of the parents. In matters of this nature, the findings of the court *406 must be accorded the greatest respect (see Eschbach v. Eschbach, supra at 173, 451 N.Y.S.2d 658, 436 N.E.2d 1260). These findings should not be disturbed unless they lack a sound and substantial basis in the record (see Kuncman v. Kuncman, 188 AD2d 517, 518, 591 N.Y.S.2d 349)" (Palm v. Palm, 15 AD3d 405 [2d Dept 2005]).

"Where possible, custody should be established on a long-term basis, 'at least so long as the custodial parent has not been shown to be unfit, or perhaps less fit, to continue as the proper custodian' " (Jackson v. Jackson, 31 AD3d 386 [2d Dept 2006], quoting Obey v. Degling, 37 NY2d 768 [1975]).

"Factors to be considered include the relative fitness of the parents, the quality of the home environment, the parents' financial status, the parental guidance given to the child, the ability of each parent to provide for the child's emotional and intellectual development, and the effect an award of custody to one parent might have on the child's relationship with the other parent" (Hogan v. Hogan, 71 N.Y.S.3d 601 [2d Dept 2018]).

"Modification of a court-approved stipulation setting forth the terms of custody or parental access is permissible only upon a showing that there has been a sufficient change in circumstances such that modification is necessary to ensure the best interests and welfare of the child" (Baraz v. Polyakov, 198 AD3d 853 [2d Dept 2021]; see also Sukul v. Sukul, 196 AD3d 661, [2d Dept 2021]). "The paramount concern when making such a determination is the best interests of the child under the totality of the circumstances" (Burke v. Squires, 162 N.Y.S.3d 434 [2d Dept 2022]).

Based upon the submissions made to this Court, along with the testimony and evidence received at the inquest, this Court was not provided with any cognizable basis to make a determination as custody and access of the parties' minor child, NA. R. (D.O.B.: [Redacted]) (hereinafter "Child"). As noted above, the Summons referenced an order entered by the New York State Family Court, Westchester County, dated September 12, 2018, (hereinafter "Family Court Order"), and that the order be continued. At inquest, while Plaintiff initially testified that such an order was entered by the New York State Family Court, his counsel later clarified that no such order remains in effect:

"[Redacted]: C. R., did you ever receive a court order for child support from family court?

C. R.: Yes.

[Redacted]: And did you comply with that order?

C. R.: Yes.

* * *

THE COURT: You're saying he has received an order from the child support collections unit or has not?

[Redacted]: He has not.

THE COURT: I thought he testified that he did. He testified that he did during the trial.

C. R.: I mean like I said, I send him whatever I can, you know.

THE COURT: Okay. Anything else?

[Redacted]: What he did receive from family court when I first took the case because we didn't know we were going to be going to trial and all of that, was a letter from -- not a letter. There was an order dismissing the wife's case. There was a dismissal of the family court support case. That's all he got and that was like in 2018, or '19, something like that."^FN18

At inquest, neither Plaintiff nor Plaintiff's counsel made any requests regarding custody of the Child except to merely ask that Defendant be granted custody, with no clear indication if this request pertained to physical custody and legal custody, and requesting that Plaintiff receive visitation, providing no specifics as to routine access, holiday access or summer access. Plaintiff's only testimony pertaining to this issue at inquest, which did not even provide this Court with the address at which the Child currently resides with Defendant, is as follows:

"[Redacted]: You testified that you have two children, one is a minor. Who does NA. R. reside with?

C. R.: With the mother.

[Redacted]: Are you asking for custody of NA. R.?

C. R.: Yes -- no. I mean, if I can come and see him, you know.

[Redacted]: Are you asking for visitation of NA. R.?

C. R.: Yes, visitation."^FN19

Beyond this lack of clarity as to the requested outcome sought by Plaintiff as to custody and access of the Child, no testimony was provided pertaining to the factors to be considered by this Court when making a best interests analysis, such as the relative fitness of the parents, the quality of the home environment, the parents' financial status, the parental guidance given to the child, the ability of each parent to provide for the child's emotional and intellectual development, and the effect an award of custody to one parent might have on the child's relationship with the other parent.

As DRL § 170(7) requires the custody and visitation with the infant children of the marriage to be resolved prior to the entry of a judgment of divorce on the ground of irretrievable breakdown of the parties' relationship, and that is the only ground asserted by Plaintiff in his Summons, for this reason alone, Plaintiff's request for the entry of a judgment of divorce must be denied.

F. Child Support.

The Appellate Division, Second Department has provided instruction as to the manner within which a child support award shall be made by a trial court, by either using the combined parental income up to the then statutory cap, or using discretion in exceeding that amount:

"The Child Support Standards Act (see Domestic Relations Law § 240[1—b]) sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to the statutory cap that is in effect at the time of the judgment (see Holterman v. Holterman, 3 NY3d 1, 11, 781 N.Y.S.2d 458, 814 N.E.2d 765; Matter of Cassano v. Cassano, 85 NY2d 649, 653—654, 628 N.Y.S.2d 10, 651 N.E.2d 878), here, $130,000 (see Social Services Law § 111—i[2][b]). With respect to combined parental income exceeding that amount, the court has the discretion to apply the statutory child support percentage, or to apply the factors set forth in Domestic Relations Law § 240(1—b)(f) (see Matter of Cassano v. Cassano, 85 NY2d at 654, 628 N.Y.S.2d 10, 651 N.E.2d 878; Matter of Byrne v. Byrne, 46 AD3d 812, 814, 848 N.Y.S.2d 319), or to utilize 'some combination of th[ose] two' methods (Poli v. Poli, 286 AD2d 720, 723, 730 N.Y.S.2d 168; see Jordan v. Jordan, 8 AD3d 444, 445, 779 N.Y.S.2d 121).

The hearing court must ' 'articulate its reason or reasons for [that determination], which should reflect a careful consideration of the stated basis for its exercise of discretion, the parties' circumstances, and its reasoning why there [should or] should not be a departure from the prescribed percentage' ' (Wagner v. Dunetz, 299 AD2d 347, 350—351, 749 N.Y.S.2d 545, quoting Matter of Schmitt v. Berwitz, 228 AD2d 604, 605, 644 N.Y.S.2d 760; see Matter of Cassano v. Cassano, 85 NY2d at 655, 628 N.Y.S.2d 10, 651 N.E.2d 878; Matter of Wienands v. Hedlund, 305 AD2d 692, 693, 762 N.Y.S.2d 90). Inasmuch as the record before us does not reveal the Supreme Court's reasons for its choice not to include income above the statutory cap, it is appropriate to remit the matter to enable the Supreme Court to set forth the factors it considered and the reasons for its determination (see Hohlweck v. Hohlweck, 271 AD2d 571, 707 N.Y.S.2d 461; Zaremba v. Zaremba, 222 AD2d 500, 635 N.Y.S.2d 532; Jones v. Reese, 217 AD2d 783, 629 N.Y.S.2d 311)" (see McCoy v. McCoy, 107 AD3d 857 [2d Dept 2013]).

Based upon the submissions made to this Court, along with the testimony and evidence received at the inquest, this Court was not provided with any cognizable basis to make a determination as child support, nor did Plaintiff or Plaintiff's counsel make any requests as to this issue beyond indicating that if this Court wanted Plaintiff to pay child support for the Child he would do so. While this Court was presented with certain documents pertaining to the income of Plaintiff, no information was provided pertaining to the income of Defendant or a request that this Court impute Defendant's income to a specific amount for child support calculation purposes. This lack of information is underscored by the opening and closing statements of Plaintiff's counsel:

"[Redacted]: *** And as far as child support is concerned, my client has been supporting the child support and she started an action and she never appeared in court. He was paying child support and at one point they sent him a check and put a zero as a balance of what owed. He doesn't know what he has to pay. He wants to pay but he doesn't know what he needs to pay. That's it, your Honor.

* * *

[Redacted]: The only closing statement that I have, your Honor, is if your Honor wishes to order an amount for child support, my client is willing to pay whatever needs to be paid for child support on a regular basis because again he has not received an order for child support."^FN20

Accordingly, this Court is without the necessary facts to engage in a calculation of the presumptively correct amount of basic child support and statutory child support add-ons, in addition to other child-related costs that may be addressed pursuant to applicable law. As DRL § 170(7) requires child support to be resolved prior to the entry of a judgment of divorce on the ground of irretrievable breakdown of the parties' relationship, and that is the only ground asserted by Plaintiff in his Summons, for this reason alone, Plaintiff's request for the entry of a judgment of divorce must be denied.

G. Attorneys' Fees & Expenses.

The Appellate Division Second Department has noted how trial courts 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, 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 [*10]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 [2d Dept 2019]).

Where a party has asserted unreasonable positions or failed to cooperate in discovery, and thereby increased the cost of the litigation, the court may make a counsel fee award in favor of the offended party or not make, or make a lesser award, in favor of the offending party" (Kaufman v. Kaufman, 189 AD3d 31 [2d Dept 2020] [internal citations omitted]). 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]).

Here, Plaintiff's retainer agreement with Plaintiff's counsel was filed (hereinafter "Plaintiff's Retainer Agreement"),^FN21 setting forth the manner within which Plaintiff would furnish attorneys' fees and expenses pertaining to this litigation. However, Plaintiff's Retainer Agreement was not admitted into evidence at inquest, nor were any itemized billing statements issued by Plaintiff's counsel to Plaintiff arising therefrom, reflecting attorneys' fees and expenses incurred by Plaintiff in this action. Moreover, at inquest no reference was made by Plaintiff or Plaintiff's counsel pertaining to the payment of counsel fees, experts' fees and expenses, including but not limited to, Plaintiff's request for Defendant's payment of his fees and expenses arising out of this litigation, or a request that both parties be required to pay their own fees and expenses related to this action.

As DRL § 170(7) requires the payment of counsel and experts' fees and expenses to be resolved prior to the entry of a judgment of divorce on the ground of irretrievable breakdown of the parties' relationship, and that is the only ground asserted by Plaintiff in his Summons, for this reason alone, Plaintiff's request for the entry of a judgment of divorce must be denied.

H. Plaintiff's Request for Other Relief.

Any relief specifically not granted or otherwise addressed herein is denied.

* * *

Based upon the foregoing, it is hereby

ORDERED that Plaintiff's request for the entry of a Judgment of Divorce against Defendant, dissolving forever the bonds of matrimony existing between Plaintiff and Defendant upon the grounds of the Irretrievable Breakdown of the Relationship pursuant to DRL § 170(7) is denied without prejudice, as is all of the ancillary relief sought by Plaintiff; and it is further

ORDERED that by May 1, 2026, Plaintiff's counsel shall serve Defendant, via overnight delivery, this Decision and Order with Notice of Entry on Defendant, and shall file an Affidavit of Service with a copy of the overnight tracking slip by May 1, 2026; 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 24, 2026

White Plains, New York

ENTER:

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