Supreme Court, Westchester County

Decided on April 29, 2026

Index No. [Redacted]

James L. Hyer, J.

[*1]

Relevant Factual and Procedural History

This action was commenced on August 5, 2025, by Plaintiff as a self-represented litigant filing a summons with notice^FN1 seeking the entry of a judgment of divorce dissolving the parties' marriage pursuant to New York State Domestic Relations Law (hereinafter "DRL") § 170(7).

On August 19, 2025, Plaintiff filed a complaint^FN2 asserting that the parties had been married in the State of New York on September 12, 2020, having one child being: C. V. (D.O.B.: [Redacted]) (hereinafter the "Child"), along with a number of documents purporting to be an [*2]uncontested divorce package and a request for judicial intervention,^FN3 after which the undersigned was assigned to preside over this action.

On September 4, 2025, an order^FN4 was entered directing that a preliminary conference be held on September 11, 2025, at 9:30 a.m.

On September 11, 2025, a conference was held wherein the Plaintiff initially appeared as a self-represented litigant and Defendant failed to appear, a so-ordered transcript for which has been filed (hereinafter "9/11/2025 Transcript").^FN5 During the appearance Plaintiff advised that Defendant had left the United States of America, traveling to the country of Mexico, where he was kidnapped by "the cartel" and his family was trying to "negotiate something."^FN6 Plaintiff then advised this Court that the parties had not executed any marital agreements pertaining to custody of the Child or pertaining to any other issues arising out of the requested dissolution of the marriage.^FN7 Plaintiff then requested the appointment of legal counsel and following this Court engaging in an inquiry as to Plaintiff's finances, appointed as legal counsel for Plaintiff Donna Genovese, Esq.; appointed Leora T. Wexler, Esq., as attorney for the Child (hereinafter "AFC"); and, appointed Gregory Salant, Esq., as guardian ad litem (hereinafter "GAL") for Defendant pursuant to New York State Civil Practice Law and Rules (hereinafter "CPLR") § 1202, having determined Defendant to be an adult incapable of adequately prosecuting or defending his rights in this litigation due to the assertion that he had been kidnapped.^FN8 The Court then granted Plaintiff interim legal and physical custody of the Child.^FN9 This Court then directed the GAL to provide this Court with monthly updates as to Defendant's whereabouts, and directed that until Defendant was available to receive service of process, this action would be stayed.^FN10

Thereafter, in the three subsequent months of September through December 2025, the GAL filed three monthly status reports advising this Court that he was unable to ascertain the whereabouts of Defendant.^FN11

On December 3, 2025, Counsel Genovese filed a letter advising this Court that she would be unable to proceed with her appointment as she was taking an employment position with the [*3]New York State Court System,^FN12 after which this Court entered an order directing a status conference to be held addressing the issue on December 5, 2025, at 2:00 p.m.^FN13

On December 5, 2025, a conference was held wherein Counsel Genovese was permitted to withdraw as counsel for Plaintiff and Silvia Goldschmidt, Esq., was appointed to represent Plaintiff, after which an order was entered regarding same.^FN14

On December 31, 2025, the GAL filed a letter, advising that he was informed by Counsel Genovese that Plaintiff had communicated with Defendant via e-mail, that the GAL was provided with the e-mail address of Defendant, and that he had sent an e-mail to Defendant at that address, but that he did not receive a response.^FN15 Thereafter, this court entered an order directing a status conference to be held on January 9, 2026, at 9:00 a.m.^FN16

On January 9, 2026, a conference was held wherein appearances were made by Plaintiff, Plaintiff's counsel, the AFC, and the GAL, after which a so-ordered transcript was filed (hereinafter "1/9/2026 Transcript").^FN17 Plaintiff testified that Defendant's e-mail address is [Redacted] (hereinafter "Defendant's E-Mail Address") which she believes remains his e-mail, that Defendant contacted her five times in the sixty days prior to the conference by telephone from telephone number [Redacted] (hereinafter "Defendant's Telephone Number"), the last of which was on December 31, 2025; and, that he was aware of this action.^FN18 Plaintiff's counsel then requested leave to effectuate service of pleadings upon Defendant by alternate service via e-mail at Defendant's E-Mail Address and via text message to Defendant's Telephone Number, for which the AFC had no objection and the GAL took no position, being granted by this Court.^FN19 Following the conference, this Court entered an order ^FN20 directing the following:

"On January 9, 2026, a status conference was held before the undersigned wherein appearances were made by Plaintiff, Plaintiff s counsel, the AFC and the Guardian Ad Litem for the Defendant, whereafter Plaintiff advised the Court that she has recently been in communication with her husband who contacted her multiple times, the last of which was December 31, 2025, utilizing telephone number [Redacted] (hereinafter "Defendant's Phone Number"). Plaintiff further, under oath, confirmed that for approximately three [*4]years Defendant had utilized the e-mail address known as: [Redacted] (hereafter "Defendant's E-Mail Address"). Plaintiff's counsel then made an application to serve Defendant with all pleadings in this action and all required Domestic Relations Law notices, by three methods including: (1) text; (2) text-email; and, (3) e-mail. The application is hereby granted to the extent that Plaintiff s counsel is permitted to serve the Defendant using Defendant's Phone Number and Defendant's E-Mail Address, via text, text-mail and e-mail.

It is hereby ORDERED that:

1. Service by Plaintiff on the Defendant as set forth herein-above shall be effectuated by January 14, 2026, with proof of service filed the same date, with copies of the text, text-email and e-mail attached to the affidavit/affirmation of service.

2. All parties, counsel and the Guardian Ad Litem for Defendant shall appear for a Preliminary Conference to be held on March 2, 2026 at 9:00 a.m., where the Court will address all issues normally included within a Preliminary Conference and further review the need for the continued appointment of the Guardian Ad Litem for Defendant.

3. The attorney for the Child shall order a copy of the Court transcript, pay the entire cost of same from the office of assigned counsel and file same to be so-ordered by February 9, 2026.

4. Unless specifically modified herein, all prior decisions and orders of this Court remain in effect."

On January 13, 2026, Plaintiff filed an amended complaint which asserted one cause of action for divorce being DRL § 170(7) and requesting the entry of a judgment against Defendant with the following relief: (1) granting Plaintiff an absolute divorce, forever dissolving the bonds of matrimony between Plaintiff and Defendant; (2) directing Defendant to provide, out of his income or earnings, reasonable and suitable maintenance; (3) granting Plaintiff sole custody of the infant child of the marriage, to wit, C. V., date of birth, [Redacted]; (4) directing Defendant to provide out of his income and earnings, reasonable and suitable child support; (5) granting Plaintiff exclusive possession and title of the furniture and personal property located within the marital apartment of the parties; (6) granting Plaintiff exclusive possession and title to the marital apartment; (7) that the court make a declaration of marital property; (8) directing that Plaintiff be awarded title to Plaintiff's separate property; (9) that the court direct Defendant to provide Plaintiff and the parties' child with life insurance, health insurance and hospitalization insurance during the support period; (10) granting Plaintiff, to the extent applicable, reasonable and suitable counsel, expert, appraisal and consulting fees for the costs of the prosecution of the instant matrimonial action; and, (11) granting Plaintiff such other, further and different relief as to the court may seem just and proper.

On January 14, 2026, Plaintiff's counsel filed proof of service of the pleadings upon [*5]Defendant.^FN21

On March 2, 2026, a conference was held wherein appearances were made by Plaintiff, Plaintiff's counsel, the AFC and the GAL, with no appearance made by Defendant, for which a so-ordered transcript was filed (hereinafter "3/2/2026 Transcript").^FN22 Following the Defendant being held in default, the Court directed an inquest to be held on April 20, 2026, at 2:00 p.m.^FN23 Following the conference, this Court entered an inquest scheduling order (hereinafter "Inquest Scheduling Order"),^FN24 providing the following directives:

"It is hereby ORDERED that:

1. An Inquest shall be held on April 20, 2026, from 2:00 p.m. to 6:00 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: (l) 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.

2. By April 13, 2026, all parties shall file with the Court and serve upon each other via (a) text; (b) text-email; and, (c) e-mail the following: (l) 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 if disclosure is not made pursuant to this directive exhibits will be precluded at Inquest.

3. By March 4, 2026, Plaintiff shall serve Defendant with a copy of this Order with Notice of Entry on Defendant via (a) text; (b) text-email; and, (c) e-mail, and file proof of service on NYSCEF the same day.

4. The AFC shall order a copy of the Court transcript, pay the entire cost of same and submit to the Court to be so ordered by April 2, 2026.

5. Unless specifically modified herein, all prior decisions and orders entered in this matter remain in full force and effect."

On March 4, 2026, Plaintiff's counsel filed proof of service of the Inquest Scheduling [*6]Order on Defendant.^FN25

On April 13, 2026, Plaintiff's counsel filed the following pre-inquest disclosure: (1) inquest exhibit list enumerating twenty-six proposed exhibits;^FN26 and Exhibits 1 through 26,^FN27 (hereinafter collectively "Plaintiff's Pre-Inquest Disclosure"). On that date, the AFC filed the following pre-inquest disclosure: (1) exhibit list enumerating no exhibits but reserving the right to utilize exhibits at inquest;^FN28 and, (2) witness list enumerating no witnesses but reserving the right to call witness at inquest (hereinafter collectively "AFC's Pre-Inquest Disclosure").^FN29 On that date, Plaintiff's counsel filed proof of service of Plaintiff's Pre-Inquest Disclosure on Defendant.^FN30

Defendant failed to file any pre-inquest disclosure.

Inquest

On April 20, 2026, an inquest was held before the undersigned wherein appearances were made by Plaintiff, Plaintiff's counsel, the AFC and the GAL 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 during which Plaintiff was the only witness to present testimony. A court transcript of the inquest was filed (hereinafter "Inquest Transcript"),^FN31 which reflects that the AFC advised this Court that she was not substituting judgment for the Child.^FN32 Further, Plaintiff's Exhibits 1-26 were moved into evidence on consent of the AFC and with the GAL taking no position,^FN33 with the AFC confirming her intent not to supplement AFC's Pre-Inquest Disclosure.^FN34

Legal Analysis

A. Witness Credibility.

The Appellate Division, Second Department, has held that the determination of witness [*7]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 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. During the inquest, Plaintiff provided responses to all questions presented to her in a clear and direct manner.

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 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."

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 [1st Dept 2014]).

At inquest, Plaintiff testified that the parties had married in the State of New York in a civil ceremony on September 12, 2020; after which the parties had the Child; and, Plaintiff [*8]commenced this action in August of 2025.^FN35 She testified that no other matrimonial proceedings pertaining to the parties' marriage had been commenced and the marriage had not been annulled or dissolved.^FN36 Plaintiff testified that she currently resides with the Child, her adult daughter J. L. (hereinafter "J. L."), her adult daughter-in-law J., and her granddaughter C. L. L. (hereinafter "C. L. L.") who is under six years old.^FN37 When asked about the relationship between the Child and the family members residing with her, Plaintiff responded, "[s]he is great, they get along good, we are always trying to watch movies, we make dinner together, we sit together, we eat, we always try to make plans for the weekend together, but -- we all get along, very well."^FN38

Plaintiff testified that Defendant stopped residing with her in October of 2024,^FN39 due to his attempted rape of her older daughter J. L., being Defendant's step-daughter, after which he was placed on probation and an order of protection was entered.^FN40 Plaintiff was presented with Exhibit 23, being an order or protection entered by the Hon. Susan M. Capeci, A.J.S.C., against Defendant for the benefit of J. L. and others, noting that Defendant had been convicted of sexual abuse in the first degree pursuant to New York State Penal Law § 130.65(2), to remain in effect until August 7, 2035; and, testified that this order required Defendant to stay away from the home of J. L., who resides with her (hereinafter "Order of Protection").^FN41

Plaintiff was then presented with Exhibit 24 which she identified as orders and conditions of adult probation pertaining to Defendant to expire on August 7, 2035, which includes in paragraph 17 under sex offender conditions, "[y]ou shall not reside in the same residence where persons under 18 years of age reside, without the approval of the Probation Department; this includes but is not limited to your own children and step children", and confirmed that the probation department has not provided Defendant with approval to reside in her home.^FN42 Having been asked to view the last page of the document, she identified Defendant's signature acknowledging his receipt of the orders and conditions of adult probation.^FN43 Exhibit 25, being special conditions of probation for domestic violence, was presented to Plaintiff who was asked to view the last page of the document, she identified Defendant's signature acknowledging his receipt of the document (Exhibit 24 and Exhibit 25 are hereinafter collectively referred to as [*9]"Orders and Conditions of Adult Probation").

The Orders and Conditions of Adult Probation have clearly delineated requirements pertaining to the manner within which Defendant is to carry on his affairs during the probation period, including completion of required therapies, cooperation with his assigned probation officer, refraining from certain activities, engaging in certain conduct including support of Defendant's family, and included the following directives to Defendant regarding his domicile, in that he was instructed to:

"Remain within the jurisdiction of the Court unless granted permission to leave by the Court or the Probation Officer.

* * *

When given authorization to visit another jurisdiction, upon arrival, you will present a travel letter given to you by your Probation Officer, to the local police department, have it signed, and return it to your Probation Officer. Travel will only occur under the restriction of the Probation Department's travel policy regarding sex offenders.

* * *

You shall reside in Westchester County unless otherwise authorized by the court or the Probation Department. You will provide the Probation Department with the address at which you will reside during the period of your probation. The Probation Department must approve that address, which approval will be denied only for sufficient cause. You shall provide the Probation Department with written notice at least 14 days in advance of any change in your address during the period of your probation. You may not change your address without the approval of the Probation Department, which approval will be denied only for sufficient cause. If the Probation Department does not approve your address, you may apply to the court for permission to reside at that address but you may not use that address unless and until court permission is obtained.

* * *

You shall not reside in the same residence where persons under 18 years of age reside without the approval of the Probation Department this includes but is not limited to your own children and step children."

The Orders and Conditions of Adult Probation further direct that the Defendant is to secure employment and support his family directing that he:

"Work faithfully at a suitable employment or pursue a course of study or vocational training that can lead to suitable employment.

* * *

Support your dependents and meet other family responsibilities.

* * *

You shall support your dependents even if required to live separate and apart from your family. If applicable, you shall make timely payments of any and all child support obligations which you are required to pay, as well as timely payments of any and all other support obligations to your dependents."

Finally, just above the signature of Defendant on the last page of the Orders and Conditions of Adult Probation, is a warning that a violation of the directives set forth therein is a violation of probation:

"Your failure to confirm to any of the imposed conditions of Probation, including failure to report to your probation officer is a violation of probation. You have the right to be present at any hearing to determine whether a violation of probation has occurred. If you intentionally absent yourself from the Court of jurisdiction or intentionally fail to appear at a violation of probation hearing, the hearing can be held in your absence which may result in a revocation of your probation sentence."

Plaintiff testified that following Defendant's execution of the Orders and Conditions of Adult Probation, and prior to the expiration of Defendant's probation period, Defendant left the United States of America.^FN44 Plaintiff informed this Court that Defendant signed a child support agreement indicating his intention to leave the country in August of 2025,^FN45 which was admitted as Exhibit 3 (hereinafter "Party Agreement"), and told her that he sought to leave as he did not want to comply with the instructions of his probation officer.^FN46 Plaintiff requested that this Court grant her a judgment of divorce dissolving the parties marriage based upon the irretrievable breakdown of their relationship for a period in excess of six months.^FN47

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. Accordingly, Plaintiff's request is granted to the extent that a judgment of divorce shall be entered in her favor and against Defendant, dissolving forever the bonds of matrimony of the parties, due to the irretrievable breakdown of the relationship of the parties for a period in excess of six months pursuant to DRL § 170(7).

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 [*10]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 [2d Dept. 2020]).

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 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]).

The Court is not required to engage in a "point-by-point catechistic discussion" of each [*11]factor under DRL § 236B(5)(d) (see Sykes v. Sykes, 43 Misc 3d 1220[A] [Sup. Ct. New York Cnty. 2014]). "There is no requirement that the distribution of each item of marital property be made on an equal basis (see DeSouza—Brown v. Brown, 71 AD3d at 946, 897 N.Y.S.2d 228; Peritore v. Peritore, 66 AD3d 750, 752-753, 888 N.Y.S.2d 72; Griggs v. Griggs, 44 AD3d 710, 713, 844 N.Y.S.2d 351)" (Baumgardner v. Baumgardner, 98 AD3d 929, 931 [2d Dept 2012]). The unequal distribution of marital assets has been determined appropriate due to a finding of a spouse engaging in conduct constituting economic fault such as dissipation of marital assets (Stewart v. Stewart, 133 AD3d 493 [2d Dept 2015]). If the court determines that one spouse engaged in domestic violence against the other, that has impacted the spouse emotionally, financially, and reputationally, the court can provide the spouse who engaged in the domestic violence a decreased distributive award of the martial assets (see J.N. v. T.N., 77 Misc 3d 894 [Sup. Ct. New York Cnty. 2022].

Furthermore, when there are inconsistencies or outright misrepresentations among financial records, sworn affidavits, and testimony, and a party is recalcitrant in providing financial document disclosure, the Court may find that the party lacks credibility and draw a negative inference related to the discrepancies in financial representations (Racquel L.J. v. Derwin J.J., 64 Misc 3d 1221, 2019 NY Slip Op 51219 [Sup. Ct. Kings Cnty. 2019]).

[A] Equitable Distribution of Marital Assets and Declaration of Separate Property.

At inquest, Exhibit 10 was admitted into evidence being Plaintiff's statement of net worth as of March 1, 2026 (hereinafter "Plaintiff's SNW"),^FN48 which Plaintiff testified contained truthful information, listing three assets being the following: (1) Chase Bank checking account, account number ending "[Redacted]", titled in Plaintiff's sole name, with a then current balance of $1,833.00 (hereinafter "Plaintiff's Checking Account"); (2) Chase Bank savings account, account number ending "[Redacted]", titled in Plaintiff's sole name, with a then current balance of $1,046.00 (hereinafter "Plaintiff's Savings Account"); (3) 2015 Mercedes ML 350, titled in Plaintiff's sole name, with a then current estimated value of $8,000.00 (hereinafter "Plaintiff's Vehicle").^FN49

With respect to Plaintiff's Checking Account, Plaintiff testified that the funds in this account originated from her employment earnings after commencement of this action.^FN50 With respect to Plaintiff's Savings Account, Plaintiff testified that the funds in this account originated from her income tax refund received after commencement of this action.^FN51 With respect to Plaintiff's Vehicle, Plaintiff testified that this car is titled solely in her name.^FN52 During the closing [*12]statement of Plaintiff's counsel, it was requested that this Court award each party sole ownership of any property held in title in their respective names.^FN53

Based upon the submissions made to this Court, evidence and testimony received at inquest, and the foregoing, the parties are hereby each awarded sole ownership of any property held in title in their respective names. Specifically, Plaintiff is awarded sole ownership, title and use of the funds held in Plaintiff's Checking Account, the funds held in Plaintiff's Savings Account and Plaintiff's Vehicle. This determination was made by the Court having reviewed the statutory factors set forth above, taking into consideration Defendant's default in this action wherein he failed to exchange any financial discovery thereby frustrating this Court's ability to obtain additional evidence to determine the scope and value of all marital assets, including those held by Defendant, to engage in equitable distribution of marital assets and declaration of separate property following Defendant having provided his own financial information, and Defendant having engaged in acts of domestic violence by engaging in a sexual offense against Plaintiff's daughter.

[B] Allocation of Debts.

Plaintiff's SNW identified only one liability being a Chase credit card, account ending "[Redacted]", with an original amount of debt of $1,577.00 (hereinafter "Plaintiff's Credit Card Debt"). At inquest, Plaintiff provided testimony pertaining to Plaintiff's Credit Card advising that these expenses were incurred beginning one and one-half years ago, and that she has no other debts.^FN54 During the closing statement of Plaintiff's counsel, it was requested that this Court direct that each party be solely responsible for their own debt and hold the other harmless from the payment of same.^FN55

Based upon the submissions made to this Court, evidence and testimony received at inquest, and the foregoing, the parties are hereby each directed to be solely responsible for their own debt and hold the other harmless from the payment of same. Specifically, Plaintiff shall be solely responsible for the payment of any amounts currently due and owing pertaining to Plaintiff's Credit Card, holding Defendant harmless from the payment of same.

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, [*13]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, 533 143 AD2d 735 [2d Dept 1988]).

At inquest, Plaintiff testified that she was advised of the spousal maintenance guidelines requiring that spousal support shall be awarded from one spouse to another if sufficient differences in income exist between them and that due to the incomes of the parties she would not be entitled to spousal maintenance.^FN56 During the closing statement of Plaintiff's counsel, it was requested that this Court direct that neither party be required to provide spousal maintenance to the other.^FN57

Based upon the submissions made to this Court, evidence and testimony received at inquest, and the foregoing, neither party shall be responsible for spousal maintenance to the other.

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 [*14]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, 159 AD3d 679 [2d Dept 2018]).

An award of custody to one parent is warranted following a finding that the conduct of the other parent voluntarily absents themselves from the life of the child (see FF v. FF, 37 AD2d 893 [3d Dept 1971] ["Petitioner's practice on several occasions of leaving home in the evening and remaining away until the early hours of the morning while leaving the children either with respondent or a neighbor reflects a certain degree of immaturity on petitioner's part and either an unwillingness or inability to accept and fulfill fully and completely her maternal responsibilities."]; Zavasnik v. Zavasnik, 59 AD2d 954 [3d Dept 1977] ["There was evidence in this record that at the time when the marital relationship was deteriorating, the appellant would go out four or five evenings a week and would not return until the early morning hours. The father would take care of and attend to the children during that time."]; Harrison v. Harrison, 54 AD2d 906 [2d Dept 1976] ["There was evidence that appellant often was away from home during the evening and did not return until early the next morning, and that she frequently neglected to properly clothe, clean, and feed the child, necessitating that her husband, the respondent, do those tasks."]).

A parent's pattern of violation of court orders may have an impact on a custodial determination in the event such violations have determined to have resulted in an adverse impact to the subject child (see Green v. Bontzolakes, 111 AD3d 1282 [4th Dept 2013]).

"A parent's criminal history may militate against an award of custody" (Nunn v. Bagley, 63 AD3d 1068 [2d Dept 2009] citing Peroglu v. Baez, 54 AD3d 416 [2d Dept 2008]; Matter of Esposito v. Shannon, 32 AD3d 471 [2d Dept 2006]). In a matter similar to this, wherein a parent sexually abused a step-sibling of the child for which a custodial determination was to be made, and that parent was thereafter found guilty of sex abuse in the first degree, the Appellate Division First Department held that the conduct constituted derivative abuse of the subject child involved in the custody determination:

"Order, Family Court, Bronx County (Clark V. Richardson, J.), entered on or about July 5, 2001, which denied the petition for visitation and ordered petitioner to complete a program for sex offenders, unanimously affirmed, without costs. In light of the court's undisputed findings in contemporaneous proceedings pursuant to Family Court Act article 10, that *311 petitioner had sexually abused his eight-year-old stepdaughter and his infant son, the latter derivatively, the court exercised its discretion in the child's best [*15]interests when it denied the petition seeking visitation with the son and conditioned future visitation upon petitioner's completion of a sex offender program (see Matter of Shaun X., 300 AD2d 772, 773, 751 N.Y.S.2d 631 [2002]; Matter of Yesenia M., 239 AD2d 245, 657 N.Y.S.2d 411 [1997] ). Family Court properly considered the visitation issue within the context of the abuse proceedings since all aspects of custody and visitation are routinely considered by the Family Court throughout the pendency of abuse petitions (see Family Court Act § 1051[d] and § 1052[a]). Nor was an evidentiary hearing required. Under the circumstances, most notably petitioner's plea of guilty to sexual abuse in the first degree in the underlying criminal proceedings, the court possessed sufficient information to properly determine the issue of visitation (see Matter of Vangas v. Ladas, 259 AD2d 755, 755—756, 687 N.Y.S.2d 399 [1999] )" (Enrique T. v. Annamarie M., 15 AD3d 310 [1st Dept 2005]).

Discussing the concepts of derivative neglect and derivative abuse, the Appellate Division, Second Department noted the following in one recent decision:

"A finding of abuse of one child does not, by itself, establish that other children in the household have been derivatively abused or neglected (see Matter of David P. [Elisa P.], 130 AD3d 739, 13 N.Y.S.3d 498; Matter of Harmony M.E. [Andre C.], 121 AD3d 677, 994 N.Y.S.2d 138). However, "[w]here a person's conduct toward one child demonstrates a fundamental **471 defect in the parent's understanding of the duties of parenthood, or demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in his or her care, an adjudication of derivative neglect with respect to the other children is warranted" (Matter of Leah S. [Barnett V.], 228 AD3d 667, 669, 212 N.Y.S.3d 692 [internal quotation marks omitted]). Further, "conduct which evinces a 'fundamental defect' in the respondent's 'understanding of his [or her] parental duties relating to the care of children' and impaired parental judgment is sufficient to support a finding of derivative abuse (Matter of Marjorie P. [Gerardo M.P.], 221 AD3d 818, 821, 198 N.Y.S.3d 215, quoting Matter of Angelica M. [Nugene A.], 107 AD3d 803, 804—805, 967 N.Y.S.2d 740)" (Matter of Daisy N., 244 AD3d 857 [2d Dept 2025]).

A review of claims of derivative neglect or abuse involve burden shifting between the parties, focused on the likelihood that the child not subject to the mistreatment will suffer the same mistreatment:

"Derivative findings in Article 10 proceedings are predicated upon the common understanding that a parent whose judgment and impulse control are so defective as to harm one child in his or her care is likely to harm others as well. Matter of Dutchess County Dept. of Social Services, on Behalf of Douglas E. III v. Douglas E., Jr., 191 AD2d 694, 595 N.Y.S.2d 800 (2d Dept.1993). In addition, children who are not the direct targets of the abuse or neglect are also likely to suffer long term damage (often not provable at the time of the Article 10 proceeding) from seeing their siblings so mistreated. In this respect findings of derivative abuse or neglect are similar to findings of neglect based upon domestic violence between adults within the child's home when no physical injury to the child has occurred. See In re Lonell J., 242 AD2d 58, 673 N.Y.S.2d 116 (1st Dept.1998). As the concern is the skewed family dynamic, it is not necessary for the petitioner to prove that the siblings who were not the direct targets are likely to suffer the same injury or even a substantially similar form of mistreatment as the target child. [*16]Matter of Patricia J., 206 AD2d 847, 616 N.Y.S.2d 123 (4th Dept.1994). Rather, the petitioner's burden is to show only proximity in time, after which showing the burden shifts to the respondent to show any circumstances that may differentiate the target child from the other children in the household. In re James P., 137 AD2d 461, 525 N.Y.S.2d 38 (1st Dept.1988); Matter of Daniella HH, 236 AD2d 715, 654 N.Y.S.2d 200 (3d Dept.1997).

The same reasoning that supports derivative findings in Article 10 proceedings compels the conclusion that they are also required in cases of 'severe abuse.' The premise of federal ASFA is that in certain types of cases, including severe and repeated abuse, the dangers of reunification efforts often *277 outweigh any potential benefit. Where, as in the present case, a respondent's severe abuse of one child is proximate in time with his or her care of another child and the respondent has been unable to demonstrate any meaningful distinction between the children, the law should protect both children fully and equally. The necessity for such protection is vividly illustrated by the case at bar, where the younger sibling slept in the same bed while the target child was raped" (In re Custody and Guardianship of Marino S., Jr., 181 Misc 2d 822 [New York Cty. Fam. Ct. 1999]).

In a separate matter involving a custody modification application, a finding of derivative abuse of a child through abuse of a sibling provided a sound and substantial basis for a determination that a change in circumstances occurred, requiring a modification of the prior custodial order to protect the interests of the child who was subjected to derivative abuse (see In re Deatrus Amir D., 136 AD3d 900 [2d Dept 2016]). The neglect or abuse of an adult sibling, for which custody is not an issue, still remains a relevant factor for a court to consider upon review of the totality of the circumstances when making a best interests analysis pertaining to the custodial issues regarding younger siblings, as noted by the Appellate Division, Second Department:

"Here, the allegations of sexual abuse with respect to the oldest child, if substantiated, would constitute a sufficient change in circumstances to warrant modification of the custody provisions of the stipulations of settlement (see Matter of Linda P. v. Thomas P., 240 AD2d 583, 659 N.Y.S.2d 55). Moreover, contrary to the father's contention, such evidence can also constitute relevant *1181 proof of impaired parental judgment, which would be relevant to the Family Court's evaluation of the best interests of the three youngest children (see Matter of Deatrus Amir D. [Astoria D.], 136 AD3d 900, 902, 26 N.Y.S.3d 143). Thus, the fact that custody of the oldest child is no longer at issue in this proceeding does not, in and of itself, render irrelevant the unresolved allegations of sexual abuse" (see Matter of Chess v. Lichtman, 173 AD3d 1178 [2d Dept 2019]).

Further a finding of derivative neglect of a child may be made as a result of domestic violence against an adult family member which may or may not be a sibling (In re Astrid, 43 AD3d 819 [2d Dept 2007] ["Contrary to the appellants' contentions, the petitioner established by a preponderance of the evidence that Amber was neglected and that Tiffany was derivatively neglected as a result of the father's acts of domestic violence against the mother."]; see also In re Jubilee S., 149 AD3d 965 [2d Dept 2017]; In re Michae F., 50 AD3d 796 [2d Dept 2008]).

In another decision by the Appellate Division, First Department, the trial court's custodial [*17]determination denying parental access with the father was upheld, holding that permitting same would not be in the best interests of the child due to the father having raped his step sibling:

"Order, Family Court, Bronx County (Fiordaliza A. Rodriguez, J.), entered on or about April 10, 2018, which, to the extent appealed from as limited by the brief, after a hearing, upon respondent father's request for visitation with the subject child (Giovanni), denied visitation at the correctional facility in which respondent is incarcerated and granted visitation via letters to be kept by petitioner agency, unanimously affirmed, without costs. Respondent is incarcerated at the Coxsackie Correctional *490 Facility for the first-degree rape of his stepdaughter, Kayla, Giovanni's half-sister, in March 2014. Kayla was six years old at the time of the rape, and Giovanni, then approximately 18 months old, was in the home when the rape occurred. Respondent was sentenced to 12 years in prison, followed by 12 years of postrelease supervision, and a full stay-away order of protection through May 2034 was issued on Kayla's behalf.

* * *

Contrary to respondent's argument, the presumption that parental visitation is in the best interests of a child was overcome by the hearing evidence showing that visitation with respondent would not be in Giovanni's best interests (see Matter of Granger v. Misercola, 21 NY3d 86, 90—91, 967 N.Y.S.2d 872, 990 N.E.2d 110 [2013]). The evidence demonstrates that, in view of respondent's heinous crime, the impact that visitation would have on Kayla and, in turn, on the close sibling relationship Giovanni enjoys with her could cause harm to Giovanni (see e.g. Matter of Enrique T. v Annamarie M., 15 AD3d 310, 790 N.Y.S.2d 109 [1st Dept. 2005]; Matter of Davis v. Davis, 265 AD2d 552, 697 N.Y.S.2d 155 [2d Dept. 1999]; Matter of Rogowski v. Rogowski, 251 AD2d 827, 674 N.Y.S.2d 480 [3d Dept. 1998]).

We reject respondent's efforts to cast as irrelevant the likely effect that his visitation with Giovanni would have on Kayla. Even respondent argues that visitation determinations are based on the totality of the circumstances. Given the apparent significance of Giovanni's relationship with Kayla, the court properly considered the inevitably adverse effect on that relationship that would result from Giovanni's developing a relationship with Kayla's rapist" (In re Giovanni H.B., 172 AD3d 489 [1st Dept 2019]).

[A] Derivative Abuse & Neglect Applied To Other Proceedings.

At the outset, this Court finds it important to note that the majority of case law on this topic oftentimes intertwines the terms "abuse" and "neglect" when discussed in application, without clear distinction. It appears that while not specifically separated by a bright line definition, the term abuse is at times used when discussing severe sexual and/or physical abuse (i.e. rape, battery, etc.) as set forth in the case law cited herein-above, while the term neglect is at times substituted while discussing omissions on the part of a parent or parents. An example of neglect, rather than abuse, is the failure of a parent to seek prompt medical attention for a child, or on a more basic level, a failure to supervise (see In re Samantha B., 5 AD3d 590 [2d Dept 2004]; see also In re Jonathan B., 270 AD2d 42 [1st Dept 2000] ["The credible evidence established that respondent brought her two-year-old son to a school from which he had previously been terminated and demanded that he be admitted. When her demand was denied, [*18]respondent left the school abruptly, her son walking behind her. Soon thereafter the child, who was developmentally delayed, was found wandering alone on a street, near a busy intersection. Respondent mother was observed at that time a considerable distance from her son pushing an empty stroller."]). However, this Court has found that in most situations, trial and appellate courts have combined the two, regardless of the factual distinctions of each case in determining that actions or inactions taken by a parent constituted abuse and neglect of a child.

Regardless of whether the allegations are determined to be derivative abuse, derivative neglect or both, the relevant jurisprudence in the State of New York concerning derivative abuse and neglect of a child stems from proceedings customarily brought in the New York State Family Court, specifically Family Court Act (hereinafter "FCA") Article 10 abuse and neglect proceedings. However, this Court determines that while derivative abuse and neglect are terms seldom used in the context of a contested custody proceeding, including matrimonial actions wherein FCA Article 10 proceedings have not been consolidated, the concepts as exemplified herein-above are most certainly applicable. One scholastic review on the subject provided the following relevant definition as to the concept of derivative neglect and abuse:

"In addition to having a statutory mandate, the concept of derivative neglect is grounded in sound public policy. It reflects the view that society should not wait for actual injuries to befall children before intervening to remove them from an obviously dangerous situation" (Derivative Neglect in New York State: Vague Standards and over-Enforcement, Robert May, 40 Columbia J.L. & Soc. Probs. 605, 609 [2007], citing to DSS on Behalf of Moria I. v. Manuel S., 148 Misc 2d 988 [Fam. Ct. Dutchess Cnty. 1990]).

At a basic level, anticipating and acting to remove children from dangerous situations, even if no actual injuries have yet occurred to that child, in essence defines this Court's well-established parens patriae authority and responsibility (see Finlay v. Finlay, 240 NY 429 [1925]). As such, it is the opinion of this Court that the concept of derivative abuse and neglect must be applied in any relevant custody dispute if found to exist and considered as part of the totality of the circumstances when engaging in a best interests analysis, whether or not the parties are the subject of a FCA Article 10 proceeding. In practice, when discussing the concept of derivative abuse and neglect within the context of contested matrimonial actions, same should be applied as a potential factor to be considered regarding the relative fitness of parents when making a custody determination, as a part of the analysis set forth in Hogan (Id., at 680).

Lastly, while applying the concept of derivative abuse and neglect appears to be obvious when dealing with two siblings of the same parents, the case law discussed herein-above expands the application of this concept to siblings and step-siblings alike (see, Giovanni H.B., Id., at 489-490). Furthermore, the aforementioned case law applied similar analysis where the abuse and/or neglect of an adult sibling was determined to be a relevant factor for a court to consider when making a best interests analysis pertaining to the custodial issues regarding the younger siblings (see Chess, Id., at 1180-1181, where the alleged abuse of an adult sibling by a parent took place while that sibling was a minor [13 years-old]; and, the Appellate Division, Second Department held that the Family Court should have considered the allegations of abuse on that adult sibling when making a custody determination regarding the younger siblings, regardless of the fact that the adult sibling was no longer a child and therefore not a part of the subject proceeding). As such, the relevant case law directs that a more comprehensive approach [*19]be taken when considering the abuse or neglect at issue which purportedly provides derivative effect on the subject child. Said another way, the case law on topic permits a broader rather than limited scope of review when analyzing derivative abuse and neglect, which does not restrict a finding of derivative abuse and neglect of a child to only situations when another minor has been mistreated, but to those circumstances where an adult has been the subject of mistreatment, putting the subject child in danger.

[B] Application.

Here, at inquest this Court was provided with the Party Agreement, having been signed, notarized and acknowledged by the parties, which provides the following agreement as to the custody of the Child:

"This agreement, made the 5th, of August 2025, between hereinafter 'husband' L. A. V. and hereinafter 'wife' E. E. V., herein provides as follows:

* * *

The child reside in the primary care of the wife. The child will be full custody of the mother since the father will leave the USA on a permanent basis.

* * *

. . . they further agree that the terms of the agreement may be incorporated into the judgment of divorce."

Without delving into any concerns pertaining to enforceability of the Party Agreement, the document does reflect the mutual understanding of the parties as to the general custodial arrangement that they sought pertaining to the Child.

During the inquest, additional evidence was furnished by Plaintiff regarding the capacity of both parties to provide care for the Child. In addition to her testimony noted above that the Child resides with her and other family members, Plaintiff testified that the family has pets including a cat named [Redacted] and hamster named [Redacted], along with fish and a frog, all of whom are cared for by Plaintiff and the Child.^FN58 Plaintiff testified that she ensures that the Child's daily needs are met including making sure that she has food, clothing and shelter.^FN59 Plaintiff advised this Court that the Child attends [Redacted]where she is in second grade in the class of [Redacted].^FN60 Plaintiff testified that she is responsible for the Child's transportation to and from school and attends parent-teacher conferences.^FN61 Plaintiff further testified that she remains active at the Child's school attending bingo night, volunteering for a Thanksgiving event, attending a Christmas concert, and serving as a chaperone for a field trip to the Bronx [*20]Zoo.^FN62 She further testified that the Child participates in an afterschool program for which Plaintiff enrolled her in.^FN63

Plaintiff further testified as to the medical care of the Child advising this Court that the Child has had the same pediatrician since birth, being [Redacted] of [Redacted].^FN64 She advised that the Child is up to date medically having recently received an endoscopy the results for which were without issue.^FN65 Plaintiff also advised this Court that she spends quality time with the Child testifying as to events depicted in photographs admitted as Exhibit 26 including a trip to Niagara Falls, attendance in church for Palm Sunday, a trip to Slide Museum, the Child's participation in a Spartan Race and the Child's participation in Spirit Team Day with the Spirit Squad.^FN66

Turning to Defendant, testimony was offered at inquest that he has voluntarily absented himself from the life of the Child since August of 2025, from which time he has not participated in any functions involving the Child, failed to engage in any communication with Plaintiff inquiring about the Child, failed to communicate with the Child's school as to her academic performance and failed to contact the Child.^FN67 Evidence was further admitted, including the testimony of Plaintiff that Defendant engaged in multiple violations of the Orders and Conditions of Adult Probation by failing to cooperate with his probation officer, to complete required therapy, or to provide support for his family.^FN68 This Court was also provided evidence that Defendant violated these orders by removing himself from this jurisdiction without authorization to do so, intentionally seeking to avoid compliance with the orders.

This Court was also furnished evidence and testimony pertaining to Defendant's attempted rape of the Child's sister J. L., which based on the determinations set forth herein-above, this Court must take into consideration as a factor when making a custodial determination as to the Child. Initially, this Court determines that the attempted rape of J. L. constitutes derivative abuse and neglect of the Child, as the conduct which evinces a fundamental defect in the Defendant's understanding of his parental duties relating to the care of children and demonstrates such an impaired level of parental judgment as to create a substantial risk of harm for any child in his care. Defendant's subject conduct was proximate in time with this action and Defendant has failed to establish by a preponderance of the evidence that the condition cannot reasonably be expected to exist currently or in the foreseeable future. To the contrary, [*21]Defendant's failure to comply with the Orders and Conditions of Adult Probation cause this Court to be gravely concerned that Defendant's misconduct may be repeated and place the Child at risk.

As noted by Enrique T., Id., upon being found guilty of sexual abuse in the first degree pursuant to CPL § 130.65(2), it is appropriate to condition parenting time with the parent who committed such criminal conduct upon that parent's completion of appropriate trainings. Here, while in this action no order was entered requiring the completion of any such trainings, the Orders and Conditions of Adult Probation specifically directed that Defendant comply with any required training and therapy. Instead of his compliance with these directives, Defendant improperly removed himself from this jurisdiction to evade same, preventing his receipt of assistance that could likely enhance his parenting abilities. Defendant's conduct constitutes a pattern of violation of court orders which, for the aforesaid reasons, have had a negative impact on the Child.

Plaintiff has requested that this Court grant her sole legal and physical custody of the Child,^FN69 a request which was supported by the AFC, who requested that Defendant's only permitted access with the Child be electronic access supervised by Plaintiff, pursuant to the wishes of Plaintiff, other than as permitted by further court order.^FN70 Upon review of the custodial determinations pertaining to the Child presently before this Court, this Court finds that Plaintiff has been the sole caregiver of the Child ensuring that all of her needs are met resulting in her thriving in all respects. This Court further finds that Plaintiff has established a nurturing home environment which is stable and supported by extended family, has provided for the emotional and intellectual development of the Child, and has demonstrated that she will not seek to impair Defendant's relationship with the Child to the extent he becomes interested in having any such relationship.

This Court further determines that Defendant has engaged in conduct which demonstrates his lack of fitness as a parent, and that based on this Court's review of the totality of the circumstances the Child's exposure to him should be limited as requested by the AFC to electronic access supervised by Plaintiff, pursuant to the wishes of Plaintiff, other than as permitted by further court order. The Court makes this determination having found that Defendant has voluntarily absented himself from the life of the Child, making no effort to communicate with her or otherwise show any interest in her life for nearly one year. During this time, Defendant has showed a continued lack of sound judgment by intentionally engaging in a pattern of violations of court orders, which were entered following the attempted rape of the Child's sibling, who the Child resides with. As a result, this Court further determines Defendant to have engaged in derivative neglect of the Child.

Based upon the submissions made to this Court, evidence and testimony received at inquest, and the foregoing, Plaintiff is hereby awarded sole legal and physical custody of the Child, subject to electronic access supervised by Plaintiff, pursuant to the wishes of Plaintiff, other than as permitted by further court order.

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]).

At inquest Plaintiff testified that she is employed at [Redacted] in [Redacted], New York, where she earns an annual income of $23,400.00 as reflected by her W-2 forms admitted into evidence as Exhibit 16 and her income tax returns admitted into evidence as Exhibit 17.^FN71 Plaintiff testified that Defendant was employed with [Redacted], admitting into evidence as Exhibit 19 his pay stubs reflecting earnings of $26,728.00 as of November 2024, and the Party's Agreement reflecting Defendant's admission of annual income of $30,000.00.^FN72 Plaintiff advised, [*22]that since Defendant ceased residing with her she has received no financial support from him.^FN73 Plaintiff requested that Defendant's annual income be imputed to $30,000.00 and that she be awarded from Defendant child support as calculated in the child support worksheet admitted as Exhibit 21 in the monthly amount of basic child support of $392.42 in addition to the parties being responsible for all statutory child support add-on expenses in the following pro rata manner: 56% by Defendant and 44% by Plaintiff.^FN74 Plaintiff further requested an award of support retroactive to the date of commencement of this action.^FN75

Based upon the submissions made to this Court, along with the testimony and evidence received at the inquest, Plaintiff is awarded from Defendant monthly child support in the amount of $392.42, payable on the fifteenth day of each month, commencing on May 15, 2026, and continuing each day thereafter until the date of emancipation of the Child. Further the parties shall be responsible for all statutory child support add-ons in the following manner 56.18% by Defendant and 43.82% by Plaintiff and in order to effectuate this determination the payor parent shall e-mail to the non-payor parent proof of payment of each statutory child support add-on payment within fifteen days of making such payment and the non-payor parent shall reimburse the payor parent within fifteen days of receipt of the proof of payment. Finally, Plaintiff is hereby awarded from Defendant retroactive basic child support from the date of commencement to be paid by May 15, 2026, and to the extent such payment is not made timely and completely, Plaintiff shall have leave of this Court to file a proposed money judgment for the then outstanding balance due.

In making this determination, the Court imputed Defendant's income to $30,000.00 annually and utilized the following calculation pursuant to the child support standards act:

	Father	Mother
Gross Income	$30,000.00	$23,400.00
- (minus)
FICA: Social Security Tax Paid	$1,860.00	$1,450.80
FICA: Medicare Tax Paid	$435.00	$339.30
Total Deductions	$2,295.00	$1,790.10
Total Income/Adjusted CSSA Income	$27,705.00	$21,609.90
[*23]Combined Parental Income	$49,314.90
Applicable Child Support Percentage	17%
Parent Child Support Obligation	$698.63 (monthly)
Parental Share of Combined Income	56.18%	43.83%
Non-Custodial Parent Support Obligation	$392.49 (monthly)

G. Life Insurance.

Pursuant to DRL § 236(B)(8)(a) a statutory vehicle exists permitting courts to require the payor of support obligations to obtain life insurance to collateralize such payments:

"In any matrimonial action the court may order a party to purchase, maintain or assign a policy of insurance providing benefits for health and hospital care and related services for either spouse or children of the marriage not to exceed such period of time as such party shall be obligated to provide maintenance, child support or make payments of a distributive award. The court may also order a party to purchase, maintain or assign a policy of accident insurance or insurance on the life of either spouse, and to designate in the case of life insurance, either spouse or children of the marriage, or in the case of accident insurance, the insured spouse as irrevocable beneficiaries during a period of time fixed by the court. The obligation to provide such insurance shall cease upon the termination of the spouse's duty to provide maintenance, child support or a distributive award. A copy of such order shall be served, by registered mail, on the home office of the insurer specifying the name and mailing address of the spouse or children, provided that failure to so serve the insurer shall not affect the validity of the order" (see also Osman v. Osman, 142 AD3d 978 [2d Dept 2016]).

This section of the DRL works in concert with New York State Insurance Law § 3113 which provides the following:

"In any case where a policy owner has, pursuant to an order of separation or divorce, designated his or her spouse or children as the irrevocable beneficiary of a policy of insurance subject to the provisions of section three thousand two hundred three of this chapter, and a copy of such order has been served, by registered mail, on the home office of the insurer specifying the name and mailing address of the spouse or children, such insurer shall:

(a) prohibit the policy holder from borrowing from the cash value or changing the named [*24]beneficiary of such insurance policy without the written consent of the irrevocable beneficiary; and

(b) provide written notification to the irrevocable beneficiary in the event that such insurance policy is scheduled to lapse due to non-payment of premium." (see also J.B. v. V.F., 86 Misc 3d 1224(A) [Sup. Ct. Westchester Cnty. 2025]).

At inquest, Plaintiff requested that Defendant be required to obtain life insurance to collateralize his child support payments until the emancipation of the Child with a police amount of $62,400.00. Based upon the submissions made to this Court, along with the testimony and evidence received at the inquest, by May 30, 2026, Defendant is hereby directed to obtain and pay the entire premium for the following twelve-month period life insurance in the amount of $62,400.00, naming the Child as irrevocable beneficiary, naming Plaintiff as trustee, with a notice pursuant to DRL § 236(B)(8)(a) and New York State Insurance Law § 3113 being served by registered traceable delivery upon the subject insurance carrier with copy to Plaintiff's counsel forwarding a copy of this Decision.

H. Exclusive Use and Occupancy.

Pursuant to DRL § 234 pertaining to the title or occupancy of property, the statute provides the following:

"In any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question as to the title to property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties. Such direction may be made in the final judgment, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and final judgment. Where the title to real property is affected, a copy of such judgment, order or decree, duly certified by the clerk of the court wherein said judgement was rendered, shall be recorded in the office of the recording officer of the county in which such property is situated, as provided by section two hundred ninety-seven-b of the real property law."

DRL § 234 may be applied to a grant of exclusive use and occupancy of a marital rental property to one spouse (see C.R. v. M.B., 81 Misc 3d 1220(A) [Sup. Ct. New York Cnty. 2022] ["Plaintiff seeks an order stating that Plaintiff shall have Interim Exclusive Use and Possession of the Marital Property. Plaintiff is currently living in the marital rental property. Domestic Relations Law § 234 states that the Court will have discretion to determine the possession and occupancy of the parties' residence. This determination can be made in an interim order as well as in a final judgment."]).

At inquest, Plaintiff testified that she resides with the Child and other extended family members in the parties' former marital domicile being a rental apartment located at [Redacted] [*25](hereinafter "Marital Domicile").^FN76 Plaintiff testified that Defendant left the residence approximately eight months ago establishing a residence elsewhere and thereafter failed to provide financial support for the Marital Domicile. Evidence submitted further established that Defendant would be unable to occupy the Marital Domicile due to the Order of Protection requiring that he stay away from J. L., who resides at that location; and, the Orders and Conditions of Adult Probation, which prohibit his residing in a location with a minor under the age of eighteen without approval from the probation department, with two minors currently living in the Marital Domicile. Further, no proof has been provided to this Court that the probation department has provided approval to Defendant to reside at that location.

Based upon the submissions made to this Court, along with the testimony and evidence received at the inquest, Plaintiff is hereby granted exclusive use and occupancy of the Marital Domicile.

I. Attorneys' Fees & Expenses.

The Appellate Division, Second Department, has noted how a 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, 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 [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 [*26](Yakobowitz v. Yakobowicz, 217 AD3d 733 [2d Dept 2023] [internal citations omitted]).

Here, the AFC was appointed from the panel with neither party incurring expense, Plaintiff's counsel was appointed pro bono and is not seeking any award, and the Defendant's GAL did not seek an award of costs. At inquest, Plaintiff requested that both parties be solely responsible for any costs incurred in this action.^FN77 Based upon the submissions made to this Court, along with the testimony and evidence received at the inquest, the Court directs that to the extent either party incurred any fees arising out of this action they shall be solely responsible for same.

J. Prior Pre-Marital Surnames.

At inquest, Plaintiff requested leave to resume the use of her maiden name, being [Redacted], following the entry of a judgment of divorce.^FN78 Based upon the submissions made to this Court, along with the testimony and evidence received at the inquest, following entry of a judgment of divorce dissolving the parties' marriage both parties shall be permitted to resume the use of any pre-marital surnames including, but not limited to, Plaintiff's resumption of use of her maiden name being [Redacted].

K. 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 granted, in addition to the ancillary relief as decided herein-above; and it is further,

ORDERED that by May 1, 2026, Plaintiff's counsel shall serve Defendant, via e-mail to Defendant's E-Mail Address, and via text message to Defendant's Telephone Number, this Amended Decision After Inquest with Notice of Entry, and shall file an Affidavit of Service by May 1, 2026; and it is further

ORDERED that by May 11, 2026, Plaintiff shall file with the Court, with notice of settlement served on Defendant via e-mail to Defendant's E-Mail Address, and via text message to Defendant's Telephone Number, with proof of service of same, the following documents:

(1) Proposed Findings of Fact and Conclusions of Law;

(2) Proposed Judgment of Divorce; and,

(3) All other ancillary documents required for this Court to enter a Judgment of Divorce; 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 29, 2026

White Plains, New York

ENTER:

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