DIVORCE - WHEN SPOUSES LIE AT TRIAL ABOUT EVERYTHING

MI v. CI, 2024 NY Slip Op 51065 - NY: Supreme Court 2024:

Introduction

In 2016, these parties reported $43,773 as their total income on their jointly filed income tax return. In 2017, these parties reported $31,862 on their jointly filed income tax return. In 2018, these parties reported $74,693 as their total income on their joint filed income tax return. Yet during this marriage, the parties drove, among other vehicles, a 2014 Lambrogini Aventador, a 2014 Lamborghini Superleggerra, a 2015 Bentley Continental, a Ferrari, and a 2020 Lamborghini Aventador. The 2020 Lamborghini Aventador has a monthly lease payment of $7,500. These parties were able to acquire two properties: one residential and one commercial. The residential property is not encumbered by any mortgage. The Husband runs a landscaping business. During this litigation, these parties, collectively, have actually paid their counsel over $400,000.00. From July of 2018 through February of 2020, there was at least $272,168 in unexplained withdrawals and checks written to "cash" from personal and business bank accounts. Those withdrawals do not account for the many additional electronic transfers of money. The Husband claims to have amassed $50,000 in jewelry, art, antiques, household furnishings, gold and precious metals, $20,000 of household furniture and $30,000 in watches and jewelry. There was testimony at the trial of this matter that the Husband consistently carried "wads" of cash. There was a video received in evidence at trial reflecting a "wad" of cash.^[1] This is the story of the I. family, and it doesn't make any economic sense. The parties' account(s) of their finances fail to even have a tenuous connection to reality.

The Court had the opportunity to observe both of these parties during a twenty-four (24) day trial (see infra). These parties both exhibited substantial levels of discomfort with equal levels of evasiveness on the witness stand. The Court found both parties to be utterly devoid of any credibility. The Wife admitted to lying under the penalties of perjury at her deposition. The Husband acknowledged having lied to financial institutions regarding his income. Yet neither party, despite these lies, assumed any level of responsibility for their actions. Instead, the twenty-four (24) day trial of this matter consisted of wholesale, ad hominem attacks on the other. This Court presided over this matter for the entire four (4) year duration of this bitterly contested matrimonial matter, and notes that the parties were hellbent on destroying one another rather than resolving the issues. The abject disdain that the parties had for one another was an impediment to resolution, engendered unproductive litigation, and was self-evident in the fact that these parties — who have emancipated children — spent twenty-four (24) days trying to "one-up" the other at every turn.

These parties, instead of productively attempting to resolve this matter, had conflicting positions on every aspect of this case. As evidenced by the Transcripts, these parties could not even enter the undersigned's Courtroom or conduct themselves during the proceedings in a civilized manner. Instead, the parties chose to act discourteously and uncivilized towards one another throughout these proceedings. The excuse-making at trial, and the deflection to others for their own financial misfeasance, was shocking to the conscience of the Court. On August 18, 2022, the following took place on the Record in open Court:

MR. ROSEN: Your Honor, my client would like to indicate for the record that Mr. I. made an obscene hand gesture towards my client as he exited the witness stand —

THE WITNESS: I scratch my nose.

MR. ROSEN:— and I won't elaborate on the nature of the hand gesture, but I want to state for the record that it occurred.

MS. FRIEDMAN: That Mrs. I. claims it occurred. Mr. I. denied it.

On June 13, 2023, the following took place on the Record in open Court:

MS. BUTT: Your Honor, I have something to raise.

THE COURT: Yes?

MS. BUTT: My client advises that Mrs. I. has threatened him as she was opening the door, that if you keep this up then you'll see what happens.

THE WITNESS: Oh, my god Are you kidding me? Are you kidding me?

MR. I.: As she was holding the door open for me she say: Keep it up and see what happens. And I swear to God.

THE WITNESS: Are you kidding me? Oh, my God. Really? You know what that is? Desperation. You're kidding me. I held the door open for you. Oh, my God. Are you kidding? I can't even believe it. I cannot believe —

COURT OFFICER: Stop talking.

THE WITNESS: I cannot believe this.

THE COURT: Don't talk to each other. Let this trial conclude.

THE WITNESS: I held the door open for him. I will never ever — I can't —

The Wife, during the trial, characterized the Husband as a "blame shifting manipulator"^[2] and a "manipulating, lying, cheating man whore".^[3] As the Wife testified on May 16, 2023:

A: And he's still doing it now. This is in the form of abuse sitting in this room. We're only here because of him. I didn't do anything wrong. I didn't beat him up. I was the one who was abused, but I have to sit here now and be embarrassed and humiliated while he sits over there with this habitual sign of the cross — I don't know what that's about — shaking his head.

As the Husband testified on September 22, 2022:

A: I complain that this money, she should pay all these bills because she started all this problem. She doing all this on purpose.

One of the few things that these parties credibly conveyed to this Court was their pure hatred towards one another. This Court was unable, in large part, to rely upon the testimony of these parties. Except as otherwise expressly noted herein, the Court never knew when the parties were telling the truth. Neither party was sincere. Neither party was genuine. The parties expressed equal levels of evasiveness, indignation and exasperation on the witness stand. The Husband called eight (8) witnesses on his direct case and introduced sixty-nine (69) exhibits. The Wife called four (4) witnesses on her direct case and introduced twenty-nine (29) exhibits. The exhibits received in evidence at trial spanned thousands of pages, with bank statements themselves eclipsing 12,000 pages. While the Record was voluminous, the parties' credibility was not.

This Court undertook its fundamental obligation and conducted a trial on the contested financial issues, developed a clear trial record, and has now rendered this comprehensive decision which covers all of the issues in dispute. See Kaufman v. Kaufman, 189 AD3d 31 (2d Dept. 2020). This Court had to determine the issues of spousal maintenance in a twenty-eight (28) year marriage, equitable distribution of a commercial property, the rights of the parties, if any, in a residential property in trust and an equitable life estate, the distribution of a business, imputation of income, distribution of assets, counsel fees, life insurance, and marital waste alleged to be in the hundreds of thousands of dollars. Ergo, while lengthy, the Court's comprehensive Decision and Order follows, which provides a holistic and comprehensive review of the parties' finances. See Kaufman, supra.

This case does, however, provide this Court with an opportunity to address an issue of very limited impression within the context of a matrimonial action: whether or not an equitable life estate, created by and placed in a trust, and whether or not a residential property, title to which is held by a trust, are marital assets subject to equitable distribution.

Background

These parties were married on February 13, 1994. They have two (2) children together, P.I., born XX XX, 1995 and E.I., born XX XX, 1997, both of whom are emancipated. The Plaintiff (hereinafter referred to as the "Husband") was born on XX XX, 1949. The Defendant (hereinafter referred to as the "Wife")^[4] was born on XX XX, 1964. The Husband commenced the within matrimonial action against the Wife on February 4, 2020 by the filing of a Summons and Verified Complaint with the Nassau County Clerk's Office.^[5] The Husband appeared by and through counsel, Friedman & Friedman, LLP.

On February 18, 2020, the Husband filed a Request for Judicial Intervention. On February 18, 2020, this Court signed the Husband's Emergency Order to Show Cause which sought, inter alia in sum and substance, omnibus pendente lite relief.^[6] On February 25, 2020, the parties appeared before the undersigned Justice for a Preliminary Conference. On said date, the parties' executed, and this Court so ordered, the Preliminary Conference Stipulation & Order. The Wife interposed a Verified Answer with Counterclaim on February 27, 2020.^[7] The Wife initially appeared by and through counsel, Michael Tama, Esq. On June 26, 2020, this Court issued an Order Appointing Business Evaluator whereby it appointed Brisbane Consulting Group, LLC, to value the Husband's business "M & M LD"^[8] as of the date of commencement of this action and as of the date of trial and to conduct a stream of income analysis for both parties as of the date of commencement of this action and as of the date of trial.

On June 29, 2020, this Court issued a Short Form Order marking the Husband's Order to Show Cause dated February 18, 2020 as withdrawn without prejudice and on consent of the parties.

On September 24, 2020, this Court issued an Order Appointing Real Estate Appraiser whereby it appointed BCS Valuations, Inc., to appraise the real property located at xxxx Merrick Road, Wantagh, New York. On November 10, 2020, this Court issued an Order Appointing Business Evaluator whereby it appointed Brisbane Consulting Group, LLC, to value each party's life estate in the property located at 704 Sunrise Avenue, Bellmore, New York. On February 1, 2021, this Court issued an Order Appointing Appraiser whereby it appointed Specialized Vintage Vehicle Services to appraise four (4) vehicles.^[9] On February 22, 2021, this Court issued a Certification Order.

On November 8, 2021, this Court signed the Husband's Order to Show Cause^[10] which sought, inter alia and in sum and substance, an adjudication of contempt against the Wife, discovery related relief pursuant to CPLR §§ 3124 and 3126 and reimbursement of counsel fees. On November 23, 2021, this Court issued a Decision and Order (hereinafter referred to as the "November 2021 Order") which, inter alia and in sum and substance, precluded the Wife from offering at trial any evidence of the value of the premises located at 704 Sunrise Avenue, Bellmore, New York but permitted the Wife to offer testimony, witnesses and evidence at trial regarding the appraisal of said premises and its value based upon the methodology and information utilized by BCS, referred the Husband's application for contempt to trial, and directed the Husband's counsel to submit a legal bill/invoice, retainer agreement and affirmation of legal services rendered on the Husband's behalf in connection with that application.

On December 1, 2021, the firm of Wisselman, Harounian & Associates, P.C. filed a Notice of Appearance on behalf of the Wife. On January 5, 2022, this Court issued a Counsel Fee Order which, in sum and substance, directed the Wife to pay the sum of $4,100.00 to the Husband within thirty (30) days of service of that Order with Notice of Entry. On April 11, 2022, the Husband filed a Note of Issue & Certificate of Readiness for Trial.

On May 17, 2022, non-party J.D. filed and this Court signed an Order to Show Cause^[11] which sought, inter alia and in sum and substance, to quash certain subpoenas, a protective order, and sanctions in the form of counsel fees. On August 17, 2022,^[12] the Husband filed and this Court signed an Order to Show Cause^[13] which sought, inter alia and in sum and substance, an adjudication of contempt against the Wife, counsel fees and sanctions.

On September 2, 2022,^[14] the Wife filed and this Court signed an Order to Show Cause^[15] which sought, inter alia and in sum and substance, spousal maintenance, payment of household carrying charges, interim counsel and expert fees and certain restrains on the disposition of property. On September 13, 2022, this Court issued a Decision and Order (hereinafter referred to as the "September 2022 Order") which referred the manifold branches of the Wife's Order to Show Cause dated September 2, 2022 to trial.

On January 23, 2023, the Wife filed and this Court signed an Order to Show Cause^[16] which sought, inter alia and in sum and substance, certain restraints and orders against the Husband regarding the disposition of a 2020 Lamborghini Aventador and counsel fees. On February 3, 2023, the Wife interposed a Notice of Cross-Motion^[17] which sought, inter alia and in sum and substance, permission to list for sale the 2020 Lamborghini Aventador, relief related to the Wife's sale of a 2015 Bentley Continental GT V8S Convertible, and counsel fees. On May 8, 2023, this Court issued a Decision and Order (hereinafter referred to as the "May 2023 Order") which, inter alia and in sum and substance, restrained the Husband from taking any steps towards the sale or transfer of ownership of the 2020 Lamborghini Aventador, directed the Wife, within fourteen (14) days thereof, to turn over any and all documents relative to the sale of the 2015 Bentley Continental, directed both parties to comply with the Automatic Orders, and denied both parties' respective application(s) for counsel fees.

Trial Dates

The trial of this matter commenced on April 22, 2022 and lasted twenty-four (24) total days (see infra). An Inquest was held on April 22, 2022, at which time the Court found the relationship between the Husband and Wife has broken down irretrievably for a period of six (6) months. The trial of this matter thereupon continued on April 25, 2022, May 17, 2022, May 18, 2022, May 19, 2022, June 2, 2022, June 3, June 23, 2022, August 11, 2022, August 17, August 18, 2022, September 22, 2022, September 23, 2022, October 25, 2022, November 2, 2022, November 4, 2022, November 15, 2022, May 3, 2023, May 15, 2023, May 16, 2023, May 22, 2023, May 23, 2023, June 12, 2023, and June 13, 2023.

Post-Trial Conferences

The Court scheduled this matter for a virtual conference on June 27, 2023 at 9:00 a.m. via Microsoft Teams for purposes of establishing a schedule for the submission of post-trial memorandums and each party's respective application(s) for counsel fees. The Court conducted a virtual conference with counsel where counsel advised they were awaiting receipt of trial transcripts. The matter was adjourned to July 21, 2023 at 9:00 a.m. for further conference. The matter was adjourned to August 22, 2023 at 9:00 a.m. The Court conducted a virtual conference via Microsoft Teams on August 22, 2023 at 9:00 a.m., at which time counsel advised the Court that they were still awaiting the receipt of trial transcripts. Upon the receipt of all of the trial transcripts, the Court thereupon directed that both parties submit their post-trial memorandums and any application(s) for counsel fees on or before December 15, 2023. On consent of the parties, and with the permission of the Court, the submission date of December 15, 2023 for the parties' post-trial memorandums and application(s) for counsel fees was adjourned to January 5, 2024. The submission date of January 5, 2024 was adjourned one final time to January 26, 2024 for the submission of post-trial memorandums and application(s) for counsel fees.^[18]

The Trial Testimony

A. Husband's Case:

1. Testimony of the Wife

Direct Examination

The Wife testified with respect to various vignettes of her examination before trial (hereinafter interchangeably "deposition" or "examination before trial").^[19] The Wife recalled at her deposition testifying many times as "I don't recall", "I do not remember" or "I do not know", all on the advice of her then-counsel.^[20] At her deposition, the Wife could not recall working for the Husband. After the parties' marriage, the Wife said that she worked as a homemaker and a mother. The Wife admitted, however, during the trial that she did recall working for the Husband, so she acknowledged that her deposition testimony was untrue. The Wife acknowledged that, during her deposition, she testified that she knew nothing about the Husband's business and that she did not know what the Husband did for a living. She acknowledged, during her testimony at trial, that this was untrue. The Wife acknowledged that she took an oath to tell the truth under the penalties pf perjury at her deposition, but three (3) separate attorneys advised her to answer the questions the way she did. The Wife acknowledged, at trial, to performing clerical work, making appointments, writing checks, depositing checks and getting cash for the Husband to pay his employees. She supplied envelopes and cash per the Husband. The Wife was the listed owner of the Business by name. The Wife acknowledged signing tax returns. While the Wife testified at her deposition that she did not do any bookkeeping or accounting, she acknowledged that she was not being truthful when she said testified at her deposition that she did not perform bookkeeping services. While the Wife acknowledged that she testified at her deposition that she could not recall filing any tax return after her marriage, she acknowledged that this was untrue. The Wife acknowledged that her statement during her deposition that she did not recall being on a bank account with the Husband on his Business account was not truthful. The Wife acknowledged that her testimony at her deposition that she did not know the accountant, Mr. Schulken, was not truthful. The Wife acknowledged that she worked with Mr. Schulken and signed the tax returns. The Wife acknowledged that she lied at her deposition when she stated that she never made deposits. The Wife acknowledged that she lied at her deposition regarding contact with clients by phone, receiving checks and depositing checks. The Wife acknowledged that her testimony at her deposition that she did not know how the Business bills were paid was not truthful. The Wife acknowledged that she gave untruthful answers at her deposition regarding her applications for and renewal of the Business license for the Husband. The Wife testified at her deposition with respect to her Statement of Net Worth dated February 28, 2020,^[21] and that, at her deposition, that she did not recognize her signature thereon. She acknowledged at trial that this testimony was untrue. The Wife testified at her deposition that she had "no idea" where her counsel got the information to fill out her Statement of Net Worth, but acknowledged that the truth is that she gave the information to her counsel from bills and receipts that she reviewed. The Wife denied, at her deposition, opening a Business bank account in September of 2010, but acknowledged at trial that this statement was untruthful. The Wife denied, at her deposition having an account at Chase Bank, but acknowledged at trial that this testimony was not truthful. At her deposition, the Wife testified that she did not recall reading her Statement of Net Worth, but acknowledged, at trial, that this testimony was untruthful.

The Wife testified regarding the premises located at 704 Sunrise Avenue, Bellmore, New York 11710 (hereinafter referred to as the "Bellmore Residence"). Both parties are on the title to the Bellmore Residence. A trust was created, and the Bellmore Residence was placed into that trust. The parties had many conversations, beginning in March of 2015, regarding the Bellmore Residence. At that time, the Husband began chemotherapy, as he was suffering from aggressive stage three cancer. The Husband was concerned for the Wife and the children, as he was self-employed and the Bellmore Residence was expensive. The parties were "behind" on their bills.^[22] The deed to the Bellmore Residence was originally in the names of the Husband and Wife. The Bellmore Residence was purchased in 1997 as a rental property. On April 21, 2016, however, the parties moved into the Bellmore Residence.

The Wife testified regarding tax returns, both business and personal. She acknowledged that the Business tax returns signed during the marriage were not accurate. The Wife, however, acknowledged signing the Business tax returns. The Wife also acknowledged that the personal tax returns were inaccurate. The Wife, however, testified that she provided the information to the accountant based upon what information the Husband told her to give to the accountant.

The Wife testified regarding the Business. She was the owner of the Business from 2010 to 2018, but "on paper" only. The Wife acknowledged to signing the corporate returns and also acknowledged that she did not tell Brisbane that she under-reported income. With respect to the business debt, it accrued when she amended the Business tax returns due to the under-reporting of income. The Wife amended the corporate tax returns for years 2016, 2017 and 2018. She advised Brisbane of the amendments to the corporate tax returns. The Wife amended the tax returns for those years because there was a large cash component of the Business and there was additional work done by the Husband that he never told the Wife about. These factors contributed to the Wife amending the corporate returns. The Wife did not provide the corporate tax returns for 2016, 2017 or 2018 to Brisbane as part of the evaluation as she did not have copies of them. The Wife did tell Brisbane that the Business had a history of under-reporting income; however, she could not remember for what years that the Business under-reported this income. The Wife's tax attorney filed the amended tax returns on behalf of the Business with her knowledge, consent and signature. The Business was incorporated on September 23, 2010 with the Wife listed as the 100% shareholder. On September 1, 2018, the Wife was no longer listed as a shareholder of the Business. At this time, the Husband became 100% shareholder of the Business. The Husband, somehow, transferred ownership of the Business from the Wife to the Husband through New York State without her knowledge, permission or consent, and without her signing any documents.

The Wife testified about tax immunity. The Wife and the Business have immunity from prosecution from the New York State Department of Taxation and Finance, but she is unsure as to the time period the immunity covers. The Wife hired a tax attorney to obtain the immunity(ies). The Wife did not speak with the Husband prior to filing the amended corporate tax returns (see supra).

The Wife testified about the Court's Order dated June 26, 2020. In sum and substance, it prohibits the "disparagement" of the Business. There was a compliant by the Wife against the Husband with the Department of Consumer Affairs. However, the Wife could not recall if she complained that the Husband was operating the Business without her authority.

The Wife testified about the property located at xxxx Merrick Road, Wantagh, New York 11793 (hereinafter referred to as the "Wantagh Property"). The parties jointly own the Wantagh Property. The Wife could not recall if this property houses the office for the Business. The Wife acknowledged having been to the Wantagh Property many times, yet, at her deposition, the Wife testified that she could not recall if she ever went to the Wantagh Property. The Business trucks were stored at the Wantagh Property when the Wife was the owner of the business.

The Wife testified with respect to three (3) bank accounts at Chase Bank. The Wife was a signatory on three (3) accounts, account numbers ending xxx8628, xxx8161 and xxx0303. During the time of her ownership of the Business, the Wife acknowledged that she would, sometimes, write checks and make deposits into these accounts. However, at her deposition, she testified that she did not recall writing checks. The Wife testified that the Husband would sign the Wife's name on checks from the business checking account at Chase at times, and that she would, at times, sign checks as well. However, at her deposition, the Wife testified that she did not sign any checks. The Wife also testified at her deposition that J.D., who the Wife testified is the Husband's "lover", signed her name on checks, but the Wife admitted at trial that she never saw Ms. D. sign any checks with the Wife's name on it.

Cross-Examination^[23]

The Wife was cross examined about the business. She became the sole and only shareholder of the business on September 23, 2010.^[24] She was the President and Chief Executive Officers of the company. The Husband, prior thereto, was the President of every form of the company since 1970 (the predecessors of the companies). The Wife was made the sole shareholder on September 23, 2010 for three reasons: first. there was an undocumented worker who was hurt on a job and filed a worker's compensation claim;^[25] second, the Husband's longstanding Business accountant was not paying payroll taxes, which resulted in the Husband being faced with over $150,000 in payroll taxes; and three, the Husband hired Craig Schulken as his new accountant whom made arrangements to pay off the payroll taxes and who made a suggestion to form a new entity^[26] which would also enable the Business to obtain worker's compensation insurance. The Wife paid nothing to the Husband for the new Business. She simply "went along" with it, as she had done for the past thirty (30) years. The Husband told the Wife to do it. The Wife could not "object" to this arrangement, as she could "never object to the Husband" without consequences. While the Wife was the sole shareholder of the Business, the Husband always told the Wife what to do. The Wife performed clerical work (for example, making appointments and returning phone calls), and while the Wife owned the Business, the Husband ran the Business. From August 31, 2018 through January of 2020, the Husband's day began at 6:00 a.m. when he woke-up. He left the house at 6:30 a.m. then went to the office until 7:00 a.m. when the employees arrived. The work day began around 7:30 a.m. There were three crews that the Husband controlled and directed. The Wife made no decisions for the Business (for example, hiring and firing employees). During the period of time that the Wife was the sole shareholder of the Business, there were always eight (8) to ten (10) of the same male employees of the Business on a "continuous" basis. The "busy season" of the Business was from March 15 to December 15, weather permitting. The Husband performed some snow removal services for the period from December 15 and March 15, which he did for many years. Snow removal services, however, ceased five to seven years ago.

The Wife was cross-examined about the payment structure and employees of the Business. Payment structure of the employees of the Business was different. The employees^[27] were paid by check or cash, or some were paid only in cash. Some of the employees were paid on a daily basis and they were paid by the Husband. One employee was known as "Primo", who was the longest serving employee. Primo received a partial check ($500 gross) plus cash of $1,200 each week. The Husband told the Wife, every week, how much cash was needed from the bank, or whether or not a check should be drawn payable to cash, or the Husband would use the cash that was on him. The Wife would then prepare an envelope with names only, and then payments were disbursed. Antonio was the manager and he was paid the most. He would be paid $1,800 in cash, per week. Antonio was never paid by check. At least six (6) employees were paid only in cash; the other employees were paid by cash and a check. There were no payroll records, other than lists, reflecting cash payments. The Husband decided how to pay the employees. In the words of the Wife, "Mike I. told me what to do". The Husband said that a man by the name of Troy Eisner paid him $30,000 in cash in the Fall of 2019 for a brick patio, flowers and mulch. Mr. Eisner was a long time customer who also hired the Business for weekly lawn maintenance. Some of the customers paid by credit card, but most of them paid by check payable to cash, to the Business itself or to the Husband. The checks were sent to a P.O. Box, which the Wife collected. With respect to the checks payable to "cash", the Husband decided whether or not those checks were cashed or deposited into personal accounts.

The Wife was cross-examined about cash, taxes and her criminal proceeding. The Husband actually encouraged customers to give cash in order to avoid sales taxes. This saved the customers from having to pay sales tax, as well as saving the Business from having to pay taxes. This was the Husband's decision alone, and the Wife had nothing to do with this decision. The Wife provided Mr. Schulken with information as per the instruction(s) of the Husband. The Wife would regularly separate taxable and nontaxable money for Mr. Schulken. The Husband always instructed the Wife as to how much money was taxable and how much of it was nontaxable. The Husband insisted on not telling Mr. Schulken about taxable income. The Husband intimidated the Wife and manipulated her, threatening her regularly that the outcome would not be good for her if she did not comply with his directives. The Wife was instructed by the Husband not to provide Mr. Schulken with all of the deposits as "taxable" because the Husband did not wish to pay taxes every month. The Wife received a regular check in the gross amount of $400 to $500 per week. The Husband received a weekly check for the same amount. The Wife could not recall if the Business paid for any of the cars they utilized. The Business's vendors were paid either by check or cash. The Wife, sometimes, would sign blank checks for the Husband, who would then pay the vendors. Sometimes, the vendors paid by cash, for instance, Allied Building Supplies, whose invoices showed how payments were made. After this divorce action was commenced, the sum of $4,900 was owed to Allied. The Wife left $4,900 in the Business bank account to pay Allied. The Wife wrote three checks to Allied totaling $4,900 which were left in the mailbox for the Husband to retrieve. The Wife learned, in April of 2020 from a letter from the District Attorney, that the checks made payable to Allied were "bad checks". The Wife had to contact the District Attorney's office. The Wife learned that the three checks were not honored because the account was closed. There were criminal charges brought against the Wife for the dishonored checks. The Wife hired counsel for the criminal matter. The Wife was exonerated on the charges pre-trial. The Wife was never arrested nor did she appear in Court.

Re-Direct Examination

The Wife did not tell the accountant that cash was not deposited into the operating account of the Business. The Wife was unsure if all of the money received by the Business was reported to the accountant. She told the accountant that, for years, there was unreported income. In 2016, the Wife signed the Business tax return. The Wife acknowledged that she signed the return, yet she knew that checks were paid to the Husband, or that checks were paid to cash. The Wife did not report all of the income she knew of to the accountant in 2016. When the Wife signed the 2016 Business tax return, she could not testify as to whether or not it was accurate or inaccurate.

Re-Cross Examination

When the Wife was the President and CEO of the Business, her duties were limited to payroll discussions with Mr. Schulken. She knew that the Husband was receiving cash from many of his customers, but she did not know the amount of cash that the Husband was receiving. The Wife was unaware of what information the Husband provided to Mr. Schulken. The Husband told the Wife not to give Mr. Schulken anything other than bank and payroll information. The Wife was not sure where Mr. Schulken received his information for the tax returns and she did not have the means to check Mr. Schulken's "numbers". Mr. Schulken never asked the Wife about cash which was received, and the Husband told her not to give Mr. Schulken any information on the issue. The Husband controlled all of the cash received by the Business. During the parties' marriage, the Husband was "physical" with the Wife, and the Wife obtained multiple Temporary Order(s) of Protection. The Wife was subjected to many years of intimidation from the Husband.

2. Testimony of Benjamin Schuver

Direct Examination

Mr. Schuver, who is employed by Brisbane Consulting Group, LLC (hereinafter referred to as "Brisbane") described the scope of his engagement and his qualifications. He performed a business evaluation pursuant to court order, with a valuation performed as of the commencement of this action. He was qualified as an expert in the field of Forensic Accounting. The business evaluation was received in evidence.^[28] Brisbane also performed a lifestyle analysis, which was also received in evidence.^[29]

Mr. Schuver testified with respect to documents provided to him. The Business was sold on February 28, 2021. The Business was previously owned by the Wife. The Wife was the 100% owner of the Business as reflected on the Schedule K-1's from 2015 through 2018. The Business was sold for an unknown sales price. The Wife reported to the witness that the company significantly under-reported income. The personal tax returns from years 2015 through 2018 were provided by the Wife. The corporate tax returns for years 2015,^[30] 2016,^[31] 2017,^[32] and 2018^[33] were all provided to the witness by the Wife. However, the aforesaid corporate tax returns which were provided to the witness did not contain the signature of the Wife. The witness did not speak with the accountant. The Wife told the witness that she was responsible for the books and records of the Business, and that she had access to the Business checking accounts. While the witness asked the Husband about the records of the Business, the Husband told the witness that the Wife or the accountant would be in possession of the Quickbook records.

Mr. Schuver testified with respect to the information provided to him. The Wife stated to the witness that she co-owned the Business with the Husband, but the Schedule K-1's reflected that the Wife was the 100% owner of the Business. Therefore, only the Wife could file the Business tax returns. It was reported to the witness that the company "routinely" under-reported income, which concerned the witness. The witness testified that it is illegal to under-report income, and the under-reporting of income was a concern within the context of the valuation. The witness was also concerned about the unsigned contracts received from the Wife. These unsigned contracts may reflect the Wife's intent to attempt to over-value the Business. The witness was concerned about the accuracy and reliability of the documents provided by the Wife.

Mr. Schuver testified about the contents of the report. The Business income for years 2015-2019 is reflected on page "24" of the report.^[34] To determine whether or not there was more revenue, the witness saw the Business proposals and unsigned contracts and invoices, although the witness could not authenticate if the invoices were real. The general assumption of the report reflects that the witness relied upon the Wife's accuracy of the unsigned Schedule K-1's, invoices and proposals. Thus, the witness performed a comparison of the total value of the above, and the income reported. The witness concluded there was unreported income, and came to an estimate of unreported income. A lifestyle analysis also led to the estimate of unreported income. The witness inspected savings and checking statements in order to perform the lifestyle analysis. The witness did not consider any savings that the parties had. The witness concluded that: in 2015, $438,681 was reported as revenue to the government and there was $545,519 in unreported income; in 2016, $490,382 was reported as revenue to the government and there was $556,218 in unreported income; in 2017, there was $585,232 reported as revenue to the government and there was $570,424 in unreported income; in 2018, there was $736,880 reported as revenue to the government and $531,486 in unreported income; and in 2019, there was $529,838 reported as revenue to the government and $663,228 in unreported income. In arriving at a valuation of the Business, the witness considered income, but the revenue on the income tax return(s) was not used to establish a value of the Business. If the witness had solely relied upon the income tax returns, it would not yield support for the value of the Business. The witness imputed salaries as "reasonable compensation" to both parties; $48,600 to the Wife and $105,000 to the Husband.^[35] The $48,600 for the Wife was based upon salary profiles of an administrative clerk based upon a comparison of her duties as reported. The $105,000 to the Husband is based upon studies and the duties as described by the Husband. The Wife told the witness that cash was received by the Business. Upon review of the checking account, several checks had "memos" regarding, for instance, yard maintenance, and masonry, etc. The witness testified as to the 2015 to 2018 amended returns, and considered all of the amended tax returns when drafting the report and considered same in the assumption of unreported income.

Mr. Schuver testified as to the debt on the Business. The Wife stated to the witness that the debt was created by the filing of amended tax returns, which were filed after the commencement of this action, for tax years 2016, 2017 and 2018. The witness testified that the Wife has an agreement with the New York State Department of Taxation and Finance where an individual can "come clean" and amend his or her tax returns. This agreement was submitted to the witness by the Wife. The witness saw a printout from New York State showing the liability of the Business, and he assumed what the Wife showed him was authentic. However, the witness acknowledged that the document presented to him was not a certified document. The debt on the business was $212,879, which was deducted from the operating value. If the debt was larger, it would, naturally, decrease the value of the Business. There was nothing received from the federal government regarding debt, and the witness concluded that there would likely be a federal tax liability. The witness was not provided with any documents from the federal government from the amended tax returns. The witness did received Form 1040 individual tax returns for years 2016 through 2018 with different amounts recorded than in the initial forms received.

Cross-Examination

Mr. Schuver was cross-examined about the Business. The witness acknowledged reviewing documents prepared by the Husband's accountant which reflects, in sum and substance, that the Business was sold. Until the Business was sold, the documents that the witness was shown reflected that the Wife was the 100% owner of the Business. Without the consent of the Wife, the Business could not be sold, since the Wife was the 100% owner of the Business. The Business was sold after the commencement of this action. The witness received no documents evidencing the sale of the Business, except for that one document. The witness did not have a discussion with the Husband regarding any new business that the Husband may have formed in February of 2021. But, there was another company that the Husband was working in.^[36] The witness's understanding was that the Husband was effectively doing business as he was when he formed his original Business in 1987.^[37] The Husband indicated that he initially established the Business in approximately 1970 with his brother. The witness testified that all three companies were the same company which operated under different names. The Wife, at some point, became the 100% shareholder of the Business. The Wife owned the Business during the period of time from 2015 through 2018 based upon the tax returns that the witness received. Before this time period, the witness would not know if the Wife owned any part of the Business. The witness was informed that in 2010, there was an "issue" where ownership of the Business was to be changed. The Wife advised the witness that this was because of a worker's compensation issue.

The witness acknowledged that the books and records of the Business were of a "lesser quality". The 2019 full-year records of the Business were incomplete. There were no general ledgers for 2019. The general ledgers for years 2015 to 2018 were "terse" in the descriptions of certain transactions. There were few records of accounts receivable. There was no formal listing of fixed assets with debts and liabilities. The witnesses's conclusion of lesser quality records was that assumptions and estimates had to be made, and the report was adjusted for unreported revenue, which is different from unreported income. The witness reviewed the Business tax returns. The Wife told the witness that some cash income was collected by the Husband from customers. For years 2016, 2017 and 2018, the Wife said that the Husband instructed her to issue invoices. The Wife said that customers paid for lawn care at the end of the season. Some customers were invoiced for the entire season. The Wife estimated that there were 251 lawn maintenance customers in total. There was no indication as to how many of those customers were invoiced for the entire season. According to the Husband, "lawn maintenance" includes lawn mowing, mulching and flower planting. The Husband stated that lawn maintenance customers were mowed weekly. According to the Wife, there were 251 maintenance customers visited weekly for lawn mowing. The Husband stated that he rarely collected money from the customers. According to the Husband, the Wife collected almost all of the money (such as deposits and checks), but the Wife said that the Husband went to homes to collect some money from the customers. The Husband stated that he was out in the field and said he rarely collected money. With respect to the landscaping aspect of the Business, the witness was not provided a list of the equipment assigned to this aspect of the Business. With respect to the masonry aspect of the Business, "hardscaping" was performed; namely, stone and concrete. The witness reviewed contracts and proposals indicating work that was completed. The witness also verified receipts from banking records. The witness was unable to determine how much income was derived from the masonry part or the landscaping part of the Business.

The witness testified that there was unreported revenue and that the revenue is under-stated on the tax returns. Thus, the witness concluded that there was more revenue that was received and than what was reported on the tax returns. For instance, in year 2018, the report reflects unreported income of $531,486. In arriving at this figure, he compared the lifestyle analysis income to the total income to the shareholders. The personal lifestyle expenses of the parties showed total income available to the parties of income, dividends, interest and rental receipts. The witness acknowledged that the Husband could have hid income from the Wife. The Husband reported to the witness that he and two other workers worked for the business at any given time and that, generally, there were three employees on any given day, including the Husband. The witness, however, did not find this assertion credible because a review of documentation reflected additional employees by the Business. There were multiple vehicles identified as being titled to the Business after a review of the insurance policy, which vehicles were stored at the Wantagh Property.

The witness reviewed customer lists from a "sharefile" folder provided by the Wife. However, the customer list(s) did not indicate if it was customers over the course of ten years, five years or otherwise. The witness did not inquire with respect to the listed customers as to whether or not they were residential customers or commercial customers. The report which was issued references some commercial properties (the witness testified to one bakery, Spiga Bakery). Also, the witness saw some contracts and proposals with business names, for example, the Milleridge Inn, the Coral House, Hudson on the Mile, and Dover Group. The Husband said he did work for the Milleridge Inn, but stopped due to non-payment three years ago (sometime in 2017). The Husband said the Milleridge Inn owed more than $100,000, and prior payments received by them were paid by check and deposited into the Business bank account.

The witness testified that, other than the tax liability, there are no other liabilities of the Business.

The witness testified as to the income approach to the valuation of the Business. The witness testified that they "did they best they could do" with the information that was provided. The witness was unaware if the Business was on the internet. The witness relied heavily on the general ledgers for the determination of business expenses and looked at banking records.

The witness testified as to the year 2018. In 2018, the reported wages paid to all employees of the business was estimated to be $25,800 to two employees. There were unreported wages of $509,772 in total based upon wage disclosure forms. There were fourteen employees in total in 2018, which did not include the parties. The Wife reported to the witness that the Husband had ten to twelve employees in total for a year. The Husband reported that the payroll was paid out every week. Generally, the employees were paid by cash or check, but this was not indicated on the general ledger. The witness relied upon the tax forms that he saw. In 2018, there were fourteen total employees reflected on the tax forms.

The witness testified as to the indication of value of the business, which the witness concluded was $455,600. The witness arrived at this figure by, in sum and substance, valuing the business at $668,500 and then deducting therefrom the New York State tax liability of $212,900.^[38] Thus, the value of the business is $455,600.^[39] The witness assumed that the tax is still owed to New York State.

Re-Direct Examination

The witness testified as to the I. family lifestyle. There was no other source of money, other than income from the Business, dividends, Social Security benefits, interest and rent. Also, the witness was unaware that the parties had sold real property and that they realized approximately $900,000 in proceeds in 2016. The witness conceded that the parties could have used this money to support themselves. The witness also conceded that the deposits into the bank account statements that the witness reviewed could be, in part, from the sale of the house. The witness conceded that his presumption that it was from the Business could have been faulty and, thus, the revenue calculations from the Business could have been faulty as well. The witness analyzed, as part of the lifestyle analysis, twenty-one (21) bank/credit card statements and four (4) bank/credit card statements for the Business.

The witness testified that the Wife said she never used Quickbooks, but the accountants did use them. The Wife told the witness that the accountants maintained the general ledgers. The witness received the general ledgers showing revenues, but those did not reflect underreported income. The witness did not speak with the accountant regarding the Business income.

Re-Cross Examination

The witness reviewed books and records and interviewed the parties, and his analysis reflects unreported income. If the accountants were not provided the information on unreported cash income, then the records would not reflect same. If the Husband paid cash to vendors for supplies, it may not be reflected in the general ledgers or the Quickbooks. The witness was not told by either party that any of their personal expenses were paid from the sale of real property from which the proceeds were approximately $900,000. The witness did not ask, nor did he know about, the sale of that property.

The witness testified about the lifestyle report.^[40] The expenses for the lifestyle analysis came from the Business and personal checking accounts. The business tax returns for 2016 through 2019 were filed by the accountant, but the witness was unaware of who signed those returns. The personal tax returns for years 2016 to 2018 were joint tax returns for both parties. The witness received a second set of personal tax returns for these years that were joint returns, but they were not necessarily amended returns, as would have been indicated by a "1040X" notation.

3. Testimony of Craig Schulken

Direct Examination

Mr. Schulken testified as to his knowledge of the parties and what services he performed for them. The witness is not a Certified Public Accountant; rather, he is an IRS Enrolled Agent who is authorized to complete and submit tax returns. He owns his own business and the parties were his clients. The witness received the information from the Wife for the returns. The witness predominantly met with the Wife. The Husband was present sometimes, but the witness only had cordial exchanges with the Husband. The witness ceased doing the parties' tax returns around 2019. The Wife would sign the tax returns as the owner of the business. The witness got an e-file authorization to file the tax returns, which authorizations^[41] for the business returns were mostly signed by the Wife. The Husband's signature appeared on at least one of them. The witness filed the tax returns for the business for years 2015 through 2018.

Mr. Schulken testified about the 2018 tax returns, business and personal. The joint tax return for year 2018^[42] and personal tax return was prepared for both parties, but no signatures appear on page "1" of the e-filing authorization. To complete the 2018 corporate tax return^[43], the witness received bank statements from the Wife and spoke with the Wife monthly. The Wife never told the witness that cash or other revenue was not included in her documents. The Wife never told the witness that there was outside revenue not reflected in the bank statements. The witness never discussed the finances of the Business with the Husband. The witness had no conversations with the Husband regarding the tax returns for 2018.

Ms. Schulken testified about the 2016 and 2017 tax returns. The witness prepared the 2017 Business tax return^[44] and the 2017 personal joint tax return.^[45] The witness also prepared the 2016 Business tax return^[46] and the 2016 joint tax return.^[47] The witness met with the Wife. They also spoke by phone and occasionally sent emails to each other.

Mr. Schulken testified about the 2019 tax returns. The witness did not complete the tax returns for the parties for this year, but he met with the Wife during 2019. There was a partial general ledger prepared by the witness for year 2019.^[48] It was based upon documents provided by the Wife, but it was not for the complete year. The 2019 partial profit and loss statement^[49] was based upon bank statements provided to the witness by the Wife.

Mr. Schulken testified about the tenant in the Wantagh Property. The Wantagh Property had a tenant. The witness was told that the tenant paid rent in the sum of approximately $5,000 per month. This information was provided by the Wife, and the Wife provided the bank records to the witness to this effect.

Mr. Schulken testified about the ownership of the business. The Wife was the owner of the Business. The Wife was the sole shareholder and signed the tax returns as President.

Cross Examination

The witness testified that he began providing professional services to the parties, which included accounting services, in year 2010. The parties owned two residential properties simultaneously at that time: the premises located at 2117 Illona Lane, Merrick, New York (hereinafter referred to as the "Merrick Residence") and the Bellmore Residence. The witness testified that he knew that the Husband is a landscaper. In fact, the Husband once performed masonry work for the witness, which included a stone patio after year 2010. He believes that he paid for the work in cash, but acknowledged that sales tax was not paid. The witness was aware that the Husband owned one (or more) Ferrari automobiles. The witness also observed the Husband in possession of a red Lamborghini automobile.

The witness received documents to prepare ledgers as well as profit and loss statements in order to prepare the tax returns. The Wife was the sole shareholder of the Business and the witness completed the tax returns from the inception of that Business. The witness provided the Wife with a list of documents needed to prepare the profit and loss statements and the tax returns. The witness did not tell the Wife how to maintain records. The witness did not instruct the Wife on how to calculate tax withholding. The witness believes he did his due diligence in preparing the return based upon what he was told. The witness prepared a general ledger from entries as reflected in bank statements which were provided to him. If money was not deposited into the bank account, the witness would have been unaware of it. If income was collected by the business and deposited into a bank account that the witness did not know about, the witness would not know about that income. The witness only used bank statements provided by the Wife to prepare the general ledgers. The witness prepared payroll documents based upon information received from the bank statements. To the best of the witnesses's knowledge, all of the employees were paid by check and the witness was unaware of any employee who was paid in cash, in whole or in part. The witness did not inquire if any employees were paid in cash or were independent contractors. The Wife did not tell the witness that the employees were paid in cash, either in whole or in part. The witness saw payroll records from the Wife for five people. The witness did not ask either party if any employees were paid in cash. For payroll, the Wife only gave bank statements to the witness. The witness acknowledged that some cars may have been paid for through the business. The mortgage on the Wantagh Property was paid through the Business even though the business did not own the Wantagh Property. The rent from the Wantagh Property, the residual income therefrom, was deposited into the Business account.

Re-Direct Examination

The witness provided the Wife with instructions on what deductions should be reflected on a W-2 Statement, and told her that business income should be deposited into the Business bank account. The Wife never advised the witness that some income was not deposited into the Business bank account.

Re-Cross Examination

At the time of his hiring, the Wife told the witness that there was an issue with the prior accountant with respect to certain tax issues, but, nonetheless, the witness still assumed he could rely upon the Wife's representations to him. The witness assumed that the Wife gave him all of the information she had.

4. Testimony of Michael Tama, Esq.

Direct Examination

Mr. Tama testified as to his involvement in this matter and his representation of the Wife. He previously represented the Wife in this matter. On December 1, 2021, he was discharged as the Wife's counsel. He provided the Wife with a blank Statement of Net Worth. He asked her to fill it out. He notarized the Wife's signature. He did not tell the Wife what to put on the Statement of Net Worth. His office typed-up the document, he asked the Wife if the entries were true and accurate, and the Wife answered in the affirmative.

Mr. Tama testified as to the Wife's examination before trial. He recalls the Wife testifying at her examination before trial. He advised her not to guess to any question, but that she could answer that she does not recall if she did not remember the answer to a particular question. He told the Wife, like he tells everyone else, to tell the truth at her deposition. The Wife made changes to her testimony on her errata sheet, which spanned several pages. The Wife told him that she did not want to sign the errata sheet because she wanted to make it more "hard" on the Husband. The Wife did not sign the errata sheet. Mr. Tama did not discuss "innocent spouse" protection with the Wife. He denied telling the Wife to answer in any specific manner or way at the deposition, other than to tell the truth.

Cross-Examination

The witness initially represented the Wife in Family Court regarding a petition for an order of protection. The Husband was the petitioner in that proceeding. The Wife accepted a "general refrain" and a "stay away" from the home of the Husband and the Business, which was on consent of the Wife. The witness has not received any money to testify. The witness received a draft Statement of Net Worth from the Wife which was transcribed, then given to the Wife to execute. She executed it in his presence.

5. Testimony of Bruce Schwartz

Direct Examination

Mr. Schwartz testified as to his credentials and the scope of his employment. He was appointed by Order of the Court as the neutral appraiser. The witness obtained the information from the Husband. His curriculum vitae^[50] provides, in sum and substance, that he has been valuing real estate for thirty-seven (37) years. He has an MAI designation and is state certified in New York and New Jersey. He has been previously recognized as an expert in multiple courts and testified in multiple cases. He was deemed an expert in real estate valuations on consent.

Mr. Schwartz testified as to the contents of his report. The BCS valuation report^[51] of the Bellmore Residence reflects a value of said residence of $630,000 as of October 26, 2021. He utilized a sales comparison approach of competent properties. Mr. Schwartz also appraised the Wantagh Property. The valuation report^[52] reflects a value of $600,000 as of November 13, 2020. He utilized the same method, i.e., comparable properties researched — as he did on the Bellmore Residence.

Cross-Examination

Mr. Schwartz did not personally visit the properties. Rather, acting as a "supervisory appraiser" is a normal procedure for him. In some circumstances, it is normal for an appraiser not to view a particular property.

The witness first testified about the Bellmore Residence. In this case, he was told that he could not enter the residence. His appraiser viewed the exterior of the residence only. The appraisal report contains a description of the interior of the residence, which was provided by the Husband, such as a room count, a bedroom count, which was also obtained from public records. The witness was aware of the concept of a life estate. The witness conceded that a life estate may negatively affect the value of a property, as it may affect the marketability of the residence. The witness has never evaluated a life estate value on a property. His report is silent on whether or not there was a life estate on the residence. The witness conceded that the last paragraph of the report states "extraordinary", which meant, in sum and substance that if the information from the Husband is inaccurate, then his conclusion (of value) may be incorrect. The Husband told the witness of some renovations to the residence. The report assumed that the information from the Husband was accurate. The witness received bills and invoices for renovation work, but did not receive photographs of the interior. The witness conceded that the interior of the residence was not inspected because the "tenant" was not home, not that he was denied access, but the instruction that the witness received was to view the exterior inspection only.

The witness then testified about the Wantagh Property, which is a commercial piece of property. The witness was not told that the rear of the property was rented-out to a landscaping business. The majority of the property was rented-out to an auto service business. The witness did not personally view the property, except by photographs taken of the property. The witness understood that the property is encumbered by one lease. The witness was unaware that the Business was using the vacant area in the rear of the property to conduct its business. The witness would have needed to see the lease to determine if this would have an affect on the value of the property. The witness testified that it depends on the lease terms as to whether or not additional revenue generated on the property would affect the value of the property. Jeanette Hoffman was his appraiser of the Wantagh Property. She reviewed the lease. The entre property is encumbered by the lease, except for the office. A single tenant is occupying the property, and paying $60,000 per year in rent ($5,000 per month). The fair market value of the Wantagh Property was $600,000 as of November 13, 2020, but that sum does not necessarily represent the fair market value as of the date that the witness was testifying at trial. The valuation of the property was not affected by the rental and revenue potential.

Re-Direct Examination

The re-direct examination of this witness was insubstantial.

Re-Cross Examination

The re-cross examination of this witness was insubstantial.

6. Testimony of Douglas Sosnowski

Direct Examination

Mr. Sosnowski testified as to the scope of his engagement and is employed by Brisbane. The witness completed a report^[53] on the value of the life estate(s) of the parties in the Bellmore Residence. The date of his report is as of February 4, 2020. The Husband's life estate in the Bellmore Residence is valued at $147,285.00 and the Wife's life estate in the Bellmore Residence is valued at $200,115.00. The witness determined these values by examining the assets placed in trust. The witness also examined the Department of Treasury life expectancy tables. He fixed an amount in time, which was based upon age and life expectancy.

Cross-Examination

The witness also prepared a lifestyle analysis. The witness noted that real estate was gifted to the trust, and the life estate was created in the trust. He concluded that there is a life estate by reviewing the trust agreement, the I. Family Irrevocable Trust (hereinafter referred to as the "Trust").^[54] The witness reviewed the Trust. The witness concluded that Section 3.01(a) of the Trust does not provide that the parties can possess for the rest of their lives, or for any length of time. The witness could not recall a provision in the Trust for the remainder of the lives of the parties or where it is in the Trust. The witness could not recall any specific section of the report which provides for same. The witness reviewed the deed transferring the property to the Trust, but does not believe that it reserved a life estate. The witness testified that Section 3-01(a)(3) of the Trust provides a homestead exemption.

7. Testimony of the Husband

Direct Examination

The Husband testified as to some general background information. He resides at 2595 South St. Marks Avenue, Bellmore, New York. He married the Wife on February 12, 1992. The parties have two children, P.I. and E.I., who are both over the age of twenty-one (21) years. The Husband commenced this divorce action on February 4, 2020. He was born on XX XX, 1949 and was seventy-three (73) years old at the time of his direct testimony.

The Husband testified about what he owned at the time he married the Wife. In 1992, the Husband owned a motorcycle (a BMW) and the Business. In 1970, the Husband started the Business.

The Husband testified as to the BMW motorcycle and a Ducati motorcycle. Around the year 2020, the Husband no longer had the motorcycles. He saw a video where two people went into his garage and took the two motorcycles. The BMW Motorcycle was worth approximately $15,000 to $20,000 based upon similar motorcycles. It only had about 300 miles on it. The Ducati Motorcycle was worth about $25,000. He purchased the BMW Motorcycle before the marriage for approximately $9,500 and he purchased the Ducati Motorcycle in 2013 for $8,500.

The Husband testified as to the Business. He changed ownership of the Business to the Wife in 2010 because an employee of the Business was hurt on the job. He had no worker's compensation insurance at the time, and he felt it was best if the Business was under the Wife's name. While the Wife claims that there is a lot of tax debt, the Husband disputes the existence of any such debt. Until year 2010, the Wife managed the Business as the secretary. She would retrieve messages from customers and told the Husband to respond. The Wife did bookkeeping, accounting, banking, she paid bills and did the payroll. The Wife also created and generated proposals for work. After year 2010, the Wife's functions were the same, and the Husband was "just the worker". The Husband would be in the field all day. His day generally started at 7:00 a.m. and he would perform brick work and landscaping services until 5:00 p.m. There were five (5) employees of the business. As to how the employees were paid, the Wife would put money in an envelope and give the envelopes to the Husband to disburse to the employees. The Husband never saw tax returns and never signed anything. The Wife signed the Husband's name to all of the parties personal tax returns. In 2020, the Business formed a new corporation because the Husband became aware that he had no license or insurance. This was spurred by the Town of Hempstead serving the Husband with a summons due to not having a license for landscaping services. In 2010, when the Business was transferred to the name of the Wife, the Business had a few accounts; the Wife was the primary account holder, she managed the accounts, and the Husband had no access to the account, any associated debit card, or any credit card. Towards the end of 2019, the Husband received money from ten to fifteen of his customers. The approximate sum of $10,000 to $15,000 was paid in cash, which he gave to the Wife to pay the bills, bur she never paid the bills. The Husband never received cash that he did not, in turn, give to the Wife. Cash was generally received at the end of the season from the ten to fifteen customers. After the commencement of the action, the Husband saw personal bank statements and reviewed them. He described "a lot" of money in the bank, to the tune of approximately $200,000 to $300,000 in the account.^[55] The Husband testified that he had "no idea" what happened to this money. The Husband prepared a chart of the Chase bank records which were subpoenaed^[56] for the period from July, 2018 through February, 2020,^[57] which chart purports to reflect money withdrawn from the account. The chart reflects $232,600 in cash withdrawals for the period from July, 2018 through February, 2020, all allegedly made by the Wife.

The Husband testified as to the parties' tax returns. Mr. Schulken prepared the personal and the Business tax returns. The Wife hired Mr. Schulken. The Wife was the person dealing with Mr. Schulken and she provided him all of the records and documents in order to prepare and complete the returns. The Husband never discussed the tax returns with Mr. Schulken. The Husband never saw the Business tax returns, and the Business tax returns were signed by the Wife. He never saw the proposed Business tax returns before the Wife signed them.^[58] The Husband testified that he would never file false tax returns, he likes to pay his bills, and that he especially pays his bills to the government. The Wife "did all this own her own".

The Husband testified as to the Wife's interference with the Business. The Husband testified that the Wife was ostensibly "posting" on Facebook that the business had no insurance or licenses and that the licenses of the Business were revoked. The Wife's social media posts^[59] with respect to the Business reflect that she was posting that there was no worker's compensation insurance and that they should not work. The Wife also interfered with the Husband's work. She used to drive around, write "bad things" on Facebook. The Husband testified, as a result, he lost "a lot" of customers.

The Husband testified about property(ies) previously owned. At the time of the marriage, the Husband owned a house on Kenneth Road in Merrick, New York (hereinafter referred to as the "Kenneth Road Residence") in his name. The Kenneth Road Residence was sold, and the Husband purchased another home on Windsome Avenue in Merrick, New York (hereinafter referred to as the "Windsome Avenue Residence") in or around 1992 or 1994. The parties took title jointly to the Windsome Avenue Residence. The parties then purchased the Merrick Residence, originally in the Husband's sole name. Title to the Merrick Residence was then transferred into the joint names of the parties. The Merrick Residence was sold on February 1, 2016. The closing statement^[60] for the sale of the Merrick Residence reflects $826,153 in proceeds of sale, which the Husband alleges the Wife took, effectively to his exclusion.

The Husband testified as to the Bellmore Residence. When it was purchased, title to the Bellmore Residence was taken only in the Husband's name. Because the Wife was always "complaining" that title was only in the Husband's name, title was transferred to the joint names of the parties. The Husband only learned that the Bellmore Residence was in the Trust when the divorce action started.

The Husband testified as to his knowledge of the Trust and with respect to the Power of Attorney. He first learned about the existence of the Trust when he was served with divorce papers. The Wife took the Husband to an attorney named Ellen Victor, Esq., with the Wife telling the Husband that they had to go to Ms. Victor to sign a will, not to sign a Trust. The Husband did not pay Ms. Victor or speak to Ms. Victor prior to this meeting. The Wife said to the Husband that it was only a will and to "trust me". The Wife was "insistent" about going to see Ms. Victor and signing the papers. The Husband was only good "at work", but not smart on anything else. The Husband can only read "a little", as he has a fifth grade education. There is a Power of Attorney dated November 7, 2017 (hereinafter referred to as the "POA").^[61] The Husband did not recognize the POA even though it contains his signature. The Husband had no knowledge that he was signing the POA.

The Husband testified as to the Wantagh Property. It was purchased fifteen to twenty years ago under the name of the Business, and title has never changed. The Husband testified that a mortgage statement from PenFed Credit Union^[62] reflects that approximately $130,000 is owed on the mortgage. The cost of the monthly mortgage is $6,700 per month. The Wantagh Property houses a tenant: a gas station. The tenant pays $6,000 per month in rent. The Husband was previously receiving $5,000 per month in rent. The Husband pays the difference between the mortgage payment and the rent received.

The Husband testified about the Wife's 2015 Bentley Continental GT Automobile. The Wife sold her 2015 Bentley after the commencement of the action. The parties put a "significant" amount of money down on the 2015 Bentley. There was a loan on the 2015 Bentley, but the Husband was unsure if there was any equity in the vehicle.

The Husband testified surrounding the circumstances of his vacatur from the Bellmore Residence as well as allegations of domestic violence. He ceased residing at the Bellmore Residence on Christmas Eve of 2017. The Wife and the parties' daughter lived in the Bellmore Residence the time. The Wife was fighting with the Husband and he had to leave, and the Wife previously threw him out of the Bellmore Residence. The Wife kicked him, punched him and spit in his face. He could not respond, so he left the home to stay with his sister or nephew. At the time that he left the house, the Wife was in control of all of the accounts and the house. He only took shoes and work clothes with him when he left. The Husband's family initially assisted him financially, and, as work "picked up", he started to pay his own bills. When the Husband left the home, the Wife had "full control" of the money from the Business. The Husband testified that the Wife beat him up "all the time". The Husband obtained a Temporary Order of Protection in Family Court after the divorce started. The Husband obtained an Order of Protection against the Wife and daughter in either January, 2020 or January, 2021. The Wife pushed and kicked him, and he banged his head. There was a video in evidence^[63] which reflects the Wife and daughter beating him up at the gas station. The Husband received a final Order of Protection on consent of the Wife on July 8, 2021. The Husband denied ever assaulting the Wife.

The Husband testified, generally, about his health and his ability to work. The Husband had lymphoma in 2014 or 2015, but by 2017, his health was "fine" and he began working daily again. He testified that he is a landscaper and will work as long as he can, although he is seventy-three (73) years old.

The Husband testified as to bank accounts. The Husband had no joint bank accounts with the Wife. He had no access to bank debit cards or credit cards. The Husband had no bank accounts in his name. Other than the money that the Wife gave him, he had no access to any other money. During the parties' marriage, there were bank accounts at TD Bank^[64] and at Chase Bank.^[65] The Husband had no access to these personal accounts, thus, he did not manage them. He had no credit cards and he did not have a debit card.

The Husband testified as to debt. When the divorce started, he had no personal debt to the IRS. Now, he has personal IRS debt because the Wife did not pay any taxes. He testified that the total owed to the IRS was approximately $61,000. The Husband acknowledged that there was approximately $5,000 in debt on the business owed to Allied. The Husband was unaware of the Business debt of approximately $200,000 until the divorce started.

The Husband testified, generally, as to the Wife's expenditures. The Husband created a chart regarding the Wife's expenses paid through the Business credit card. These expenses included her nails, her hair, personal training, and shopping at the mall. He reviewed the records which reflect that the Wife spent approximately $300,000.

The Husband testified as to other personal property. On top of the two Motorcycles, the Husband left seven to eight watches and gold chains in the Bellmore Residence before he left.

The Husband testified as to automobiles. He does not currently own any vehicles. Currently, he leases a Lamborghini. He pays $4,000 per month for the Lamborghini, which is leased for a five year period. The lease^[66] for the Lamborghini was executed on February 22, 2021. Before leasing his current Lamborghini, the Husband previously leased two other Lamborghini automobiles, which were returned. The Husband also leases^[67] a Ford F-150 truck.

The Husband testified as to his expenses and his legal fees. His monthly expenses are $7,000 per month as reflected on his Statement of Net Worth.^[68] He does not support his girlfriend, nor does he pay any of her bills. The Husband has paid over $100,000 in legal fees to his counsel.

Cross Examination

The witness was questioned about the Business. It was started in 1970. From 1970 to 1992, he had a secretary who ran the inside of the Business, which were similar to the duties of his first wife, who also worked for him. He always left "running" the Business to others. He just "worked" and never did any paperwork. The parties married on February 12, 1992. The Wife then ran the billing, created invoices, generated estimates for work, and did the payroll. The Wife ran every aspect of the Business, except that the Husband was the guy working. The Husband worked "outside" and the Wife worked "inside". In 1970, the Husband started the Business. The Wife became the owner of the Business, but the Husband was unsure of the year that ownership was transferred of the Business. Around the time the Wife became the owner of the Business, the company had worker's compensation insurance, but the employee was paid "off the books" and was undocumented. Therefore, ownership of the Business was transferred to the Wife because of these issues. The Wife said that the best thing they could do, to get cheap worker's compensation insurance, was to put everything under her name.

The witness was questioned about money. The deposits on the jobs were generally paid in checks, and no cash was received until the end of a particular season. At the end of every season, the witness gave $1,500 from each customer to the Wife.

The witness was questioned about property he owned at the time of the parties' marriage, and he acknowledged owning a Ferrari, a Corvette and a Chevrolet.

The witness was questioned about the various parcels of real property owned. The Kenneth Road Residence was purchased one year prior to the parties' marriage, but both parties "fixed up" that residence. The parties then purchased the Windsome Avenue Residence in the Husband's name, and, after acquiring the Windsome Avenue Residence, sold the Kenneth Lane Residence. The Husband did not recall when Windsome Avenue was sold. The parties then purchased the Illona Avenue Residence in the Husband's name alone, but one year later, title was transferred into the joint names of the parties. The parties purchased the Bellmore Residence at the time that they owned the Illona Avenue Residence. While the Bellmore Residence was initially purchased only in the Husband's name, title to same was transferred into the joint names of the parties.

The witness was questioned about his income. The Husband could not recall the highest income he ever earned and he could not recall what the highest income he earned during his marriage to the Wife. This was, ostensibly, because both of his wives "handled everything". While the Husband could not recall his income in 2021, he acknowledged that he filed a tax return for 2021,^[69] and that he signed the 2021 tax return saying that it was accurate and complete. The Husband could not recall representing his income to be $122,126 on said tax return, and he was not sure if the income listed on his personal 2021 tax return was accurate.

The witness was questioned about his involvement with Mr. Schulken, but he denied having any involvement with Mr. Schulken. The Husband had nothing to do with paying his employees, and, at the end of each week, the Wife would provide the Husband with a stapled envelope to pay his employees. The Husband did not know what was in the envelopes, for example, either a check and/or cash.

The witness was questioned about his girlfriend, whose name is Jennifer Diel. He denied giving Jennifer any money. The Husband began living with Jennifer Diel in 2021 on a full-time basis. She "supports" him and feeds him. The Husband would only pay for the two Lamborghini automobiles and an occasional dinner for Ms. Diel.

The witness was questioned about his automobiles. In 2004, the Husband leased his first Lamborghini automobile. That car was repossessed one to two years after the inception of the lease because the Wife failed to pay the bills associated with it. In 2014, the Husband leased a 2014 Lamborghini Aventador. The cost of the lease was $3,500 per month. The 2014 Lamborghini Aventador was traded in for another Lamborghini, a blue and yellow 2020 Lamborghini Hurican.^[70] The cost of the lease is $1,500 per month, and the vehicle is worth $325,000. The Husband also had a red 2014 Lamborghini Superleggerra which was leased in his name. The lease payment was $1,500 per month and he had it for three to four years. He traded this car in for a 2017 488 Ferrari in or about 2016 or 2017. The Husband proceeded to trade-in the Ferrari because the Wife wanted a Bentley automobile. The Husband currently drives a 2020 Lamborghini, which he acquired in February, 2021. The two Lamborghini vehicles that the Husband traded-in resulted in him receiving $50,000 for the appreciated values of those automobiles, but the cars are owned by the leasing companies. The Husband used the $50,000 to lease his current vehicle. The Husband did not buy either vehicle off the lease. The lease agreement^[71] for his current vehicle, to wit: a 2020 Lamborghini Huracan Coupe, reflects the purchase price to be $347,670, if purchased. The down payment was $137,247, with $7,927.30 as the advanced rental payments, two months advance payment, a $1,295 lease acquisition fee, a $929.09 dealer fee, $32,461.16 in sales taxes on the lease and $1,710.91 in registration for a subtotal of $181,566.75. The total allowance is $88,486.78 with a total due of $93,079.97. The Husband testified that the $93,079.97 "total due" payment must have come from the Business bank account. The Husband conceded that he provided false information in order to obtain the loan. The Husband said he was a "partner" of the Business, but he admitted this was also false. He listed the sum of $660,000 per annum on the application as his income. The Husband admitted this was false. He testified that everyone lies and exaggerates to get a loan and buy a car. The Husband stated that he never made that kind of money, but he never tells anyone how much he earns. The monthly lease on his current vehicle is $3,963.65 ($47,568 per year), and that the payments are current. He pays $1,000 per year in insurance on the vehicle. In 2021, the Husband had two Lamborghini automobiles and the lease payments totaled $6,500 per month, with about $1,000 per year in insurance.

The witness was asked about his plans to continue working. The Husband stated that he will work one to two more years before he retires. If he feels good, he will work longer, and he will work as many years as he can. He may retire in three to four years.

The witness was asked about his Statement of Net Worth as of April 20, 2022.^[72] While the witness acknowledged signing it, he signed it without reviewing it and has no knowledge of its contents. He did not recall giving documents to his counsel for the completion of it.

The witness was asked about the Wantagh Property. The Husband purchased the Wantagh Property under the name of the Business initially. Subsequent to the purchase thereof, title changed to the joint names of the parties. The Husband and Wife are currently the co-owners of the Wantagh Property. The Husband believed that titled changed on or about September 25, 2014. The deed to the Wantagh Property^[73] is dated September 25, 2014, and it reflects a transfer from the business to the Husband and Wife. The Husband signed the deed as "President" of the business. The rent charged on the Wantagh Property went up from $5,000 per month to $6,000 per month. The total rent received is $72,000 per year.

The witness was asked about the 2020 Business tax return. A tax return was filed for the Business in 2020, and the Husband signed same as President. He was not sure if he reviewed the tax return before signing it. The 2020 tax return of the Business^[74] reflects gross receipts of $228,997. It reflects compensation of officers of $6,550, but the Husband conceded that he is the only officer and owner. The information for this tax return was provided to the accountant by the Husband and Jennifer Diel. It also reflects that $60,000 was paid in rent, but the Husband had no idea as to whom rent was paid. It additionally reflects $120,102 in total deductions, including $7,329 in auto/truck repair and $17,955 for storage. The Husband acknowledged that there was no cost for storage, however. It further provides for $642 for a telephone landline in Jennifer Diel's basement.

The witness was asked about the 2021 Business tax return. It reflects $28,750 in compensation of officers, but the Husband conceded that he is the only officer of the Business. It also reflects $14,435 in salaries and wages, but that this number does not "sound right" to him. It reflects $39,637 in rent paid, but the Husband did not know to whom the rent was paid. The Husband acknowledged that no one had been using the office space in the commercial property since 2020. The Husband's current business maintains an office at 2796 Lincoln Boulevard, which is Jennifer Diel's address. The tax return reflects office expenses listed of $47,034, but the Husband did not know why that sum was listed. The Husband was unsure of what the $1,389 for utilities were for, but testified that the $5,680 listed on the return for telephone expenses includes the land-line telephone at Jennifer Diel's home plus his cellular phone.

The witness was questioned about his retirement savings. He does not have an IRA and is unsure as to whether or not he ever had one. The Husband does not know what an IRA is. Yet, on his 2020 tax return, it reflects IRA distributions of $10,514 and $4,128 in pensions and annuities. The Husband claimed to not know anything about this. However, the Husband said that he has a pension from the government of Social Security in the amount of $22,303.

Re-Direct Examination

The Husband testified that he relied upon the accountant to "fill out" the Business and personal tax returns for years 2020 and 2021. He simply provided the information for the returns to the accountant. He reiterated that the mortgage on the Wantagh Property is more than the rent collected. The Husband pays for fuel for the trucks with a charge card. The receipts for same were given to the accountant, and he does not know where this information is in the tax return. He never discussed the cost of the telephone or office expenses with the accountant.

Re-Cross Examination

The Husband provided the accountant with bank statements and credit card statements, receipts for gas and other receipts. The Husband receives no cash, except at the end of the season. He estimated that he receives approximately $15,000 in cash, but no receipts are given to the customer. In February of 2020, he started the new Business with the same equipment. From February of 2020 to December 31, 2020, the Husband had no employees of the new Business. The Husband himself did most of the jobs during the COVID-19 global health pandemic in 2020.

8. Testimony of Troy Eisner

Direct Examination

Mr. Eisner testified as to background information. He is a Certified Public Accountant in New York, In October, 2020, Mr. Eisner took over the accounting and the witness was hired by the Husband.

Mr. Eisner testified regarding the 2020 Business tax return. The witness prepared the 2020 Business tax return^[75] The 2020 Business return shows the period from October 22, 2020 through December 31, 2020, which reflects gross revenue of $228,997. This sum was arrived at by reviewing the bank statements which were supplied to the witness. Mr. Eisner's office prepared a cumulative general ledger^[76] and then he prepared the return.

Mr. Eisner testified regarding the 2021 Business tax returns and general ledgers. The 2021 Business tax return^[77] reflects $39,637 in rent paid through the Business, and Schedule E of the Husband's personal tax return reflects $63,000 in rent received. The witness testified about the cumulative general ledger for 2021^[78] for the Business, which was created using the bank statements and tax and payroll information provided to the witness.

Cross-Examination

The witness was questioned about his due diligence. The witness testified that he exercised his due diligence in completing the 2020 and 2021 Business tax returns and the personal taxes for the Husband for 2020 and 2021. The witness reviewed bank statements, tax records, and payroll statements.

The witness was asked about the Husband's income from 2020. The witness did the Husband's personal tax return for year 2020. The Husband's wages were $26,000, consisting of $6,500 from the new Business and $19,500 from the prior Business. The witness did not review the Husband's personal bank statements prior to completing his personal tax returns.

The witness testified as to the Lamborghini lease.^[79] The lease expense was a deduction listed on the Business tax return, which is paid by the Husband's business. The 2020 cumulative ledger reflects rent of $60,000, which was offset by distributions. The Business distributed $60,000 to the Husband. The Husband paid himself rent from the Business of $60,000 reflected on the corporate return for storage of trucks on the Wantagh Property. In 2021, there was a Business expense of $39,637 for equipment rental for the Lamborghini.

The witness was asked about the Business tax return for 2021.^[80] The witness acknowledged that $74,918.70 of personal expenses of the Husband are paid by the Business.

The witness was asked about the Husband's income from 2021. The Husband's total adjusted gross income in 2021 was $122,126 and the witness was unaware of any other income received by the Husband.

Re-Direct Examination

The re-direct examination of this witness was insubstantial.

B. Wife's Case:

1. Testimony of Jennifer Diel^[81]

Direct Examination

Ms. Diel testified as to the nature of her employment and her income. She is employed by Blis, an advertising platform. She works full-time and holds the position of "director". She works from home and in the office. Her base salary is $160,000 per year, plus she receives commissions. Her total income is approximately $320,000 per year. She was previously employed at Wild Sky Media, where she held the position of director of advertising. Her base salary at Wild Sky Media was $150,000 per annum plus commissions, and, while she was employed there, she earned approximately $320,000. Ms. Diel also receives child support and alimony from her former spouse of $7,425 per month. As of October 31, 2022, Ms. D had earned approximately $160,000 in salary with approximately $50,000 in commissions earned.

Ms. Diel testified as to her living arrangements. She lives with the Husband. She has lived with the Husband since the end of 2019, or the beginning of 2020. Ms. Diel has her own children, but she has no children with the Husband. The Husband does not provide Ms. Diel with any cash. He pays for "nothing major" on her behalf. The Husband may pay for groceries once a month or so. The Husband has purchased no furniture for Ms. Diel's home.

Ms. Diel testified as to her home. She has owned a home for the last twelve years. She refinanced her home last year because of low interest rates. She pays approximately $3,200 per month, which includes her taxes and insurance. The witness receives no money from the Husband for her housing expenses.

Ms. Diel testified as to her automobile. She leases a Lamborghini automobile. She pays $1,900 per month for the cost of the lease of the Lamborghini and an additional $180 per month for the cost of the insurance for the Lamborghini. The Husband does not provide her with financial assistance for her automobile expenses. The Husband is the guarantor on her lease. Her lease is around $2,000 per month. She pays the insurance, which the Husband also guarantees.

Ms. Diel testified as to the Husband's Business. Since January of 2020, Ms. Diel has helped the Husband with technology for his Business. She does whatever the Husband tells her to do. The Husband's employees "vary". The witness was unsure about the Husband's "route" or anything that he does. In October, 2020, the witness helped the Husband open a bank account for the Business. She has helped him read and respond to emails. She characterized the Husband as paying "through the nose" for the Business in that every three months, he pays $3,000 for payroll taxes and $3,000 in sales taxes. The Husband performs weekly landscaping services at Ms. Diel's home without compensation.

Ms. Diel testified as to her knowledge of the Wife's interference with the Husband's Business. The Wife called the town and cancelled the Business license. The Husband and Ms. Diel tried to build-back the Husband's customer base because the Wife had "decimated" the Husband's Business because of her Facebook posts and reviews, negative posts and Business calls being forwarded to the Wife's phone.

Ms. Diel testified as to the 2020 Lamborghini Aventador Lease dated February 17, 2022.^[82] She guaranteed the lease for the Husband, but the lease is only in the name of the Husband. The lease payment of $7,500 per month lease is guaranteed if the Husband defaults. With respect to the up-front payment of $390,000, the Husband traded-in two leased cars (a yellow Lamborghini and a blue Lamborghini). She was with the Husband when he leased it, but the $390,000 up-front payment was an "incorrect" statement. The $390,000 "up-front" payment was, in effect, value that the dealership gave the Husband for the trade-in of his two cars. The Husband has made all lease payments timely to her knowledge. While the witness is unsure of the Husband's automobile insurance amount, she has guaranteed it as well. She believes that the payment is current. Ms. Diel guaranteed payments despite the fact that she has no idea what the Husband earns.

Cross-Examination

There was no cross-examination of this witness.

2. Testimony of E.I.

Direct Examination

E.I. testified as to background information. She is the daughter of the parties. She was born on XX XX, 1996. She lived with the parties until the Husband left the Bellmore Residence, which was approximately three years ago. She has four older brothers: P.I., R, E and C. She lived with P.I. and R, but she never lived with E and C. She is very close with E, who has no relationship with the Husband. R is her step-brother on her mother's side. She speaks with him daily. She has a good relationship with P.I.

E.I. testified as to the circumstances surrounding the Husband's vacatur from the Bellmore Residence. When the Husband moved out, more information came to light about the Husband with another woman. There was constant "bickering" between the parties about his extramarital affairs. She heard the Husband speaking to his girlfriend on the phone. As a result of learning about this, her relationship with her father ended. The Husband told E.I. that he was going to hurt her and kill her. The Husband was physically and verbally abusive towards her. He hit her and chased her with scissors.

E.I. testified as to incidents of domestic violence she observed. She observed these incidents for up to five years before the Husband left the Bellmore Residence. The Husband was physically and verbally abusive to the Wife. He would "belittle" her. He would "body-check" her into the wall. The police were constantly being called to the Bellmore Residence. In one instance, the Husband punched the Wife in the face (when the E.I. was in tenth grade). The Wife had bruises on her face. The same day that the Husband punched the Wife in the face, he pushed her down the stairs. The police were called, but the witness did not speak with the police. The Husband would constantly threaten E.I. with a golf club. The Husband would "body check" E.I. multiple times in her chest and would knock her down. The Wife was never physical with the Husband. E.I. also recalled an incident from February of 2020 where she and the Wife went to Wantagh Property and the Husband was present. The Husband threatened the Wife, telling her that she will be on the streets, that she is a cunt, and that her life is over. The altercation turned physical. The Husband grabbed the Wife and E.I. tried to split them up. As she was pushing the Husband off the Wife, the Husband fell to the ground. She did not see who "started" the altercation, but the Wife was screaming "get off of me" and "help".

E.I. testified as to her knowledge of the Husband's Business. The Husband was a landscaper. E.I. helped her parents with "paper-work" in the office beginning at age thirteen. She performed clerical duties until 2018. She was compensated "off the books". She would be given $100 "here or there" and would also ride along with the Husband until she was twenty-one, approximately two to three times per month, in order to collect cash from customers. She observed the Husband collecting a "wad of cash" which he would put in an envelope. That cash ranged from $1,000 to $50,000. The Husband counted the cash in front of E.I. and had E.I. count the money. The Husband always had a "wad of cash on him" and would always have $5,000 to $10,000 in cash on him. When E.I. testified as to "on him", she described it as being in his pocket, his truck, or his house or wherever he was. He kept thousands of dollars in the dresser next to his bed. E.I. created a video eight to nine years ago^[83] which purports shows a typical amount of money in the Husband's night-table. A typical "stack" of money would be in the $2,000's. Between years 2015 and 2018, approximately ten people worked for the Husband, and all ten people were paid in cash. The Husband would put the cash in envelopes every Saturday, and each guy would receive at least a minimum of $1,000. The Husband would often count this money in front of the witness.

E.I. testified as to the circumstances surrounding the Husband's health. The Husband had cancer in 2015 and the Wife took the Husband to every session of chemotherapy.^[84]

Cross-Examination

E.I. was questioned about the video. Ten years ago, when the witness was sixteen years old, she took a video of cash in the home. She saw a huge wad of cash, and thought it was "cool" to record it on her phone. The witness conceded, however, that nothing in that video shows or reflects the Husband. The video reflects and shows only the bedspread in the bedroom.

E.I. was questioned about the cash. While she testified that she always had a horrible relationship with the Husband, she confirmed that the Husband took her into his truck two to three times per month and helped him count his money. While the witness saw cash payments for years, she conceded that she did not see those cash payments every week. E.I. might have seen these cash payments forty times per year.

E.I. was questioned about the allegations of domestic violence. She never went to any doctor or hospital after the Husband "shoulder checked" her. While E.I. did file a police report, she could not recall when she filed the report and she had no reports with her.

Re-Direct Examination

E.I. testified again about the incidents between her and the Husband. She reiterated that she called the police anywhere from three to four times. She filed a police report in 2018. E.I. filed a police report against the Husband when he threatened to kill her with golf club. E.I. testified that she feared for her life.

Re-Cross Examination

E.I. was questioned about the police report. She read the police report before signing it, and conceded that nowhere in the report does it state that the Husband threatened the witness with a golf club, and no injuries were reflected in the report.

3. Testimony of Keith Fontana

Direct Examination

Mr. Fontana testified as to background information and the scope of his undertaking. He is the President of East End Investigations & Security, Inc. He has been employed there for twenty four years. He has testified as a private investigator and is a former member of the Suffolk County Police Department, narcotics division. He was initially retained in May of 2020 to investigate the Husband's Business, his background and Jennifer Diel's involvement in the business, if any. The witness has testified in courts well over twelve (12) times on other matters.

Mr. Fontana testified about the first surveillance date in June, 2020, when he began his investigation. On June 19, 2020, he saw the Husband arrive at his place of Business. The husband opened gates and waited for his employees to arrive. The Husband was the first to arrive at 6:45 a.m. Thereafter, approximately six to eight employees arrived dressed in shirts with the company name. He observed the Husband speak to the employees from two hundred to three hundred feet away. The Husband and the employees left the scene. The employees got into a Business vehicle and there were three vehicles total.

Mr. Fontana testified about the second surveillance date of June 30, 2020. Around 6:30 a.m., the Husband arrived in a white truck and opened the gates. The employees arrived and the Husband helped move trucks around. The witness then followed the employees. There were three vehicles, plus the Husband's pick-up truck. Mr. Fontana did mobile surveillance of the employees. There were six employees in the lawn maintenance crew.

Mr. Fontana testified about the third surveillance date of July 16, 2020. The Husband arrived at 6:45 a.m. The surveillance team broke into two groups. The witness remained with the lawn crew. Another investigator followed the Husband. The employees in the lawn maintenance crew were followed to Bellmore, Merrick and Wantagh, where they mowed numerous lawns. The witness did not observe the Husband on July 16, 2020, except at 6:45 a.m.

Mr. Fontana testified about the fourth surveillance date of July 27, 2020. Surveillance began at Ms. D's house, where he observed the Husband's truck. The Husband left her house and went to his Business property. He opened the gates. He spoke to his crew. The witness then followed the landscaping crew. He followed the landscaping crew of four to six employees and there were three vehicles. The Husband was not with his crew. The witness followed them all day until the end of work. He did not see the Husband after he left in the morning.

Mr. Fontana testified about the fifth surveillance date of December 6, 2020. The witness undertook surveillance at a toy drive at the Nassau Coliseum to determine if the Husband was present. The Husband arrived at approximately 9:12 a.m. in a yellow Lamborghini automobile with vanity plates reading "eunsogno". The witness performed a DMV search which revealed that the vehicle was registered to the Husband with title being in the name of the leasing company.

Mr. Fontana testified about the sixth surveillance date of December 5, 2021. This was another "toys for tots" event at the Nassau Coliseum. The Husband arrived at 10:12 a.m. The Husband drove a blue Lamborghini automobile with license plate "I DI 36". The vehicle was registered to the Husband but titled in the name of the leasing company.

Mr. Fontana testified about the seventh surveillance date of May 3, 2023. The Husband arrived at the yard at 6:15 a.m. where six people were observed. Three vehicles left the yard. Mr. Fontana stayed with the lawn crew and its three vehicles. He followed the vehicles in Merrick, Bellmore and Wantagh.

Mr. Fontana testified about the eighth surveillance date of May 9, 2023. The Husband arrived at the yard at 6:53 a.m. The Husband left in a different vehicle and there were six people at the yard. The Husband left with two people. The witness followed the Husband's vehicle with two people in it. He saw the Husband perform masonry work at a home. The Husband left the home in a white truck for one hour and then returned and helped his men remove brick and stones from his truck. The witness left the scene after approximately four hours of surveillance.

Mr. Fontana testified about the ninth surveillance date of May 11, 2023. On this date, the Husband and two employees drove to Jennifer Diel's house. They removed trees and loaded the Husband's truck. At the yard, the Husband met-up with the same six people. There were three work trucks and the Husband's white pick up truck. The Husband left in a white box truck and drove to Jennifer Diel's residence. They loaded trees and potted plants into the Husband's truck to take to another residence.

There was no other surveillance.

Cross-Examination

There was no cross-examination of this witness.

4. Testimony of the Wife

Direct Examination

The Wife testified as to personal and background information. She was born on XX XX, 1964. As of the date of her direct testimony, she was fifty-eight (58) years old. She was previously married for approximately two (2) years. That marriage ended in divorce. She has a son, R, born xxxx xx, 1989, who she has custody of. R lived with her until his high school graduation. The Wife began dating the Husband in 1991, and the parties married on February 13, 1992. Prior to their marriage, she resided with the Husband and R (who was four (4) years old at the time). The Wife has two children with the Husband, P.I., born xxxx xx, 1995 and E.I., born xxxx xx, 1996. During the marriage, the children lived with the Husband and Wife. P.I. last lived with the Wife in April of 2018. He graduated college in 2017 and moved to Florida in 2018. Her son, R, has lived in the United Kingdom since February of 2020. The Wife believes that the Husband has a child with Ms. D, named D. The Husband has a son, named E, and another son, named C, from his former marriage. The Husband has no relationship with E. At age thirteen, E began smoking marijuana and the Husband threatened E and chased him with a bat. The Wife observed physical altercations between the Husband and E. The Husband would hit E in the head with a work boot and, often times, would chase E out of the house.

The Wife testified as to the Husband's attitude, views and conduct. The Husband "rules with" fear and intimidation. On July 1, 2018, the Wife was with E.I. The Husband was on the phone with Ms. D and he referred to the Wife as a "bitch". The Husband also told Ms. Diel that he was "fucking her brains out" when he saw her. The Husband begged his son, E, to "cover" for him, but E refused. The Husband has two grandchildren through E, but the Husband has no relationship with E or his grandchildren. The Husband's other son, C, came to the home in 2013 with his boyfriend. The Husband said "no" to C's request for $4,400, and told C to leave with his "fag boyfriend". The Husband grabbed C by the throat and threw him out of the house onto the steps. The Husband disowned C that day, and said that "no child of mine will be a fag". The Wife was forbidden to see C, telling the Wife that she could not talk to that "fucking faggot".

The Wife testified as to her role during the parties' marriage. The Wife did not work except as she testified to previously with respect to the Business. The Husband forbade the Wife from working outside of the home. The Wife had a passion for cooking and baking and wanted to open a baking business. The Wife was expected to cook, clean, and care for the children and run errands. The Wife was expected to perform the "domestic chores". The Husband had no involvement with the children. The Husband did not attend parent-teacher conference, rarely attended the children's games, and the Wife was in charge of scheduling and doing "everything else". The Wife took the children to their medical appointments. The Husband did not participate in the selection of college for P.I. The Wife took "good care" of the children and made the educational decisions for the children, such as sending P.I. to St. Dominick High School, which cost about $10,000 per year.

The Wife testified as to physical altercations with the Husband and the children. The Husband and P.I. got into a physical altercation when P.I. was eight years old. P.I. was swimming and had an "accident" in the pool. The Husband noticed this, grabbed P.I. by the neck and kicked him upstairs. The Husband threw P.I. into his room and told him that he was not allowed in the pool again. At dinner, if the Husband was not served first, he would throw food. He once threw food at P.I. The Husband assigned seats at the dinner table. The "rule" in the home was that, based upon Italian culture, the Husband was served first, then the eldest to the youngest children were served, and the Wife ate last. The Husband sat at the head of the table. P.I. and the Husband got into other physical altercations during the parties' marriage. The Husband would hit P.I. in the back of the head if P.I. did not eat his dinner. He would exclaim "eat your fucking dinner". There were always verbal altercations between the Husband and all of the children. The Husband would exclaim: "He [P.I.] is fucking lazy" and, if P.I. got a bad report card, he would call P.I. a "fucking idiot". The Husband got into altercations with E.I. In first grade, the Husband pulled E.I.'s ponytail and he would "moo" at her like she was a "big cow"; "like a big piece of meat". The Wife observed the Husband chasing E.I. with a golf club.

The Wife testified as to the Husband's extramarital affairs. The Husband engaged in an extramarital affair with the Wife's friend. The Wife walked in on the Husband and her friend and the Husband chased the Wife out of the front door. The Husband beat the Wife up in the kitchen, effectively blaming the Wife for catching the Husband in the act. The Husband engaged in "multiple" extramarital affairs, but it was always the Wife's fault for his cheating.

The Wife testified as to the current relationship(s) between the Husband and the children. Neither P.I., nor E.I., have a relationship with the Husband today. P.I. lives in Florida and E.I. lives with the Wife. P.I. owns a hospitality group. Since the divorce action began, P.I. takes care of the Wife in Florida and pays for everything when the Wife is in Florida. E.I. contributes to the groceries and other personal expenses. E.I. does not give cash to the Wife, but they share everything. They share a car that is paid for by E.I.

The Wife testified about her relationship with her son, R. R currently lives in the United Kingdom. R pays everything for the Wife when she visits with him in the United Kingdom. R has given the Wife money since the start of this divorce action. He has given her money for groceries, food, travel, clothing, entertainment, medical and dental care. R paid for the Wife's health insurance when the Husband would not do so. R also pays for the electric, water, cable and taxes on the Wife's residence. R has also paid the Wife's legal fees directly. The Wife forwards the invoices directly to R. R has not requested reimbursement. R also paid the Wife's prior matrimonial counsel^[85] and the Wife's criminal lawyer. R also paid for the cost of the private investigator.

The Wife testified as to domestic violence. The Wife and the Husband got into a physical altercation in 1998 or 1999 with R, P.I. and E.I. present. The parties and those children went to Hershey Park with another Family, and the Husband accused the Wife of flirting with another man. The Husband "savagely" kicked the Wife while she was in bed. The Wife was screaming in front of all of the children for being kicked, and the Husband made the family leave Hershey Park. Sometime in 2006, at about 2:00 a.m., the Wife viewed the Husband's phone because she suspected that he was having an affair. The Husband caught the Wife looking at is phone. The Husband chased the Wife out of the house and tackled her on the lawn. The Wife broke her right finger. The Husband told her not to go to the doctor or else "I'll break your fucking legs". To secure her finger, the Wife tried to make her own splint. Sometime in 2007, the Wife accused the Husband of having an affair with a woman named M.R. The Wife confronted the Husband, and the parties got into a physical altercation. The Wife sprayed the Husband with water when she was washing dishes and the Husband threw the Wife into a door and punched her in the face. The Husband dragged the Wife around the driveway while he was grabbing on to her pyjama top. The Husband was arrested after he fled the home. The Wife filed a complaint and the Husband was charged with assault. The Wife obtained a Temporary Order of Protection, and the Husband had to take an eight week anger management course. The Wife first attempted to file for divorce in 2003. Her second attempt to file for divorce was in 2008. After the second filing, the Husband threatened Wife to stop the divorce. After the first filing, the Husband also threatened the Wife, telling her to stop court otherwise she will be buried in the backyard. The Husband threatened to set the Wife "on fire" and intimated to the Wife that he was in the "mob". The Wife discontinued the first divorce action in 2004 not because she fell back in love with the Husband, but because the Husband threatened her. When the Wife commenced the second divorce action, the Wife discontinued same because the Husband promised to stop cheating on her and beating her.

The Wife testified about the Husband's health. When the Husband was diagnosed with Non-Hodgkin's lymphoma, which was "close to" stage four, she felt bad for the Husband. She attended every doctor appointment and never left his side. The Husband's last treatment was in 2018. While she "hated his guts", she characterized the diagnosis as "devastating". The Wife testified that the Husband "used me again" when he had cancer because he only "needed" her. The Husband wanted the Illona Lane Residence sold because he did not think that he could maintain it while he was sick. The house sold during the Husband's lymphoma treatments for approximately $900,000. Neither party attended the closing because, at that time, the parties were on a three week vacation in Italy celebrating the Husband's one year anniversary of lymphoma treatments. The checks from the closing on the Illona Lane Residence were written to the Husband and deposited in a TD Bank account. The funds derived from the sale were used to rebuild the Bellmore Residence "from the ground up". The Husband returned to work in March of 2015, but he could not work on the days that he was receiving treatment.

The Wife testified about the Husband's desire to get a will. The Husband and the Wife went to an attorney. The Wife was present for three to four meetings with the attorney. The Husband wanted to exclude R from the will. The Wife told the Husband that E and C should be excluded from the will, and that only P.I. and E.I. should be in the will. In the Husband's will, the Wife is designated as a health care proxy. The Wife had a power of attorney for medical reasons only. The doctors felt that the cause of his cancer was applying round-up fertilizer for forty-years. Thus, the parties entered into a class-action suit against Monsanto, but the Wife has no idea as to the status of that suit. The Husband sought damages of $1,000,000 in that lawsuit.

The Wife testified about the Illona Lane Residence. There was a first mortgage encumbering the premises when the home was purchased, and the parties took out a second mortgage so as to enable the Husband to purchase a Dodge Viper^[86]. At that time, the amount of the first mortgage was $3,500 per month and the amount of the second mortgage was $500 per month. When the Ilona Lane Residence was sold, the payments were current, except for one year because of the Husband's lymphoma. The parties had trouble paying their household bills after the Husband's diagnosis. Generally, while the Husband was working, he would provide the Wife with cash and she would pay the bills through money orders and through the personal and Business checking accounts. Every week, until the Husband was diagnosed with lymphoma, he gave the Wife cash to pay the bills.

The Wife testified about how she paid the bills. The parties had a post office box for the business. The bills would go to both the house and the post office box, and both parties would go to the post office box for the bills. The Wife would prioritize the bills by importance. Then, she would check the accounts to ensure that there was enough money. If there was not enough money, the Wife would ask the Husband for money, telling the Husband that she needed "X" dollars to pay the mortgage and the other bills.

The Wife testified about the payroll of the Business. The Wife characterized payroll, which occurred every Thursday, as "priority". In 2012, 2013 and 2014, the Husband would "order" the Wife to deposit a check into a Business savings accounts. Thereafter, there would be a withdrawal of money which was supplemented by cash that the Husband earned to meet payroll of six to seven people. The aggregate payroll each year was $400,000 to $450,000 in cash. Each week, there was approximately $8,000 to $10,000 in cash disbursed as payroll over forty to forty-five weeks in any one year. For the time period from May 1 to September 1, one or two employees were partially paid "on the books" to give the "appearance" of a small business. During this time, the Husband was driving an $800,000 automobile while going out to dinner with his girlfriend. While most checks were deposited into the Business savings account, there were "big checks" payable to cash, and the Wife recalled checks in the sum of $20,000, $30,000, $50,000 and $85,000. The $85,000 check paid to cash was from a customer named Mr. D. The payroll of the Business was very "regimented" and always the same. The Husband did the work and got cash from approximately 150 customers. The Husband provided the names of the workers to the Wife. The Husband would provide the Wife with checks made out to cash or the Husband's business for deposit into the Business savings account. The next day, the Husband told the Wife to withdrawn the cash for the crew. The Wife would write names on the envelopes and she wrote the names the same for thirty years every single week. The Husband kept two sets of records: the "real" books and a "second set" of books. The Husband had the list of daily employees. The Husband kept a list of the workers paid in cash and the accountant was not given the cash list under threat of the Husband. On Saturdays, the Husband would pay his crew about $10,000 in cash on average.

The Wife testified as to the time period from February 2015 through February 2016. During this time, when the Husband was receiving treatment for lymphoma, he did not go to work. The parties had no money to pay the household expenses. They borrowed $90,000 from escrow of the sale of the Illona Lane Residence. During this time period, the Husband was unable to go out and collect money. During this year, however, the Husband drove a Lamborghini and a Ferrari. Neither the Lamborghini, nor the Ferrari, were sold in the year following the Husband's lymphoma diagnosis.

The Wife testified about automobiles. After the parties sold the Illona Lane Residence, one Lamborghini automobile was traded-in to purchase another Lamborghini automobile. The Ferrari was traded-in to purchase the Bentley automobile in July of 2018. The Bentley automobile was purchased two weeks after the Wife caught the Husband cheating. The Wife felt like the Bentley was a "consolation prize". Prior to the acquisition of the Bentley automobile, the Wife drove a Cadillac Escalade SUV and Fiat automobiles. The cost of the Bentley automobile — which was put in the Wife's name by the Husband — was $2,500 per month. The Wife tried to sell the Bentley automobile privately as the Husband was not paying for it. She found a dealership who paid-off the difference between what was owed on the loan and the purchase price. The Wife sold the Bentley automobile on April 5, 2021 for approximately $92,000 and did not "net" any proceeds from it. The Bentley automobile was purchased for approximately $160,000.^[87] It was paid for by a "trade-in" of the Husband's 2012 Ferrari 458 Spider. The value of the Ferrari was $190,000. During the parties' marriage, the Husband, at one point, operated a red 2014 Lamborghini Superleggerra and a yellow 2014 Lamborghini Aventador. The Husband purchased the 2014 Lamborghini Aventador.^[88] The Wife was part of the "process" in purchasing this vehicle. At the time of acquisition, they had a 360 Ferrari which was traded-in for this car. The Husband wired $90,000 to the dealership. The car was "financed", not owned. The Husband gave the Wife an additional $25,000 to deposit into a checking account; thus, a total of $115,000 was paid towards the car. To the best of the Wife's recollection, the purchase price of the automobile was $350,000. The 2014 Lamborghini Superleggerra was also purchased from a dealership on Long Island. It was initially a lease with an option to purchase same at the end of the lease. It was a seventy-two month lease. The monthly lease was $2,200 per month for seventy-two months, and all seventy-two payments were made. The 2014 Lamborghini Superleggerra finance agreement^[89] was signed by both the Husband and Wife in 2018. The agreed-upon purchase price was $103,769.04 at the end of the lease. There were fifty-nine monthly payments after the initial $16,000 up-front payment. The Husband currently operates a 2020 Lamborghini.

The Wife testified about where the children attended school. Both children attended private school for two years and both went off to college. P.I. attended college on a partial scholarship, with the rest underwritten by a student loan, which was paid by the Husband and Wife. E.I. attended college on a partial scholarship, with the rest underwritten by a student loan, which was paid by E.I.

The Wife testified about vacations taken during the marriage. The parties vacationed to Hershey Park, Jamaica, Disney and Italy. After year 2010, the Wife went on vacations without the Husband, but with the children. They went on cruises to Europe and Florida.

The Wife testified regarding background information about the Husband's Business. Prior to the commencement of the divorce action, the Wife would receive a weekly salary anywhere between $400 to $500. After September, 2019, the weekly salary ceased. At the time of the marriage, the name of the Business was M & M L, Inc. At that time, the Husband was the sole owner of the Business. The name of the Business changed multiple times after the parties married. In the late 1990's, the Husband created M & M LM, Inc., in addition to having M & M L, Inc. At that point, the Husband wished to expand his masonry business. In 2020, the Husband started M & M LD, Inc. In September of 2010, the Wife became the President and owner of M & M DP, Inc, which commenced operations in September of 2010. The Husband, at that point, could not obtain worker's compensation insurance due to an undocumented worked getting injured and because of the Husband's tax issues with M & M L, Inc. The tax issue was IRS related — the Husband owed payroll and sales taxes. The Wife came to learn of this when IRS agents came to the parties' residence. The Husband was told that he owed approximately $12,000 and the Husband stated that it was not his problem and that the Wife had to deal with it. The Wife went to the bank, obtained $10,000 from the daughter's communion account and brought it to the IRS in Garden City. On September 1, 2018, the Husband electronically took the Wife off of the Business as the President and listed himself as the sole owner, stockholder, and President, without the Wife's knowledge or consent. The Wife only learned of this in 2020 when she received emails that accounts were overdrawn, and she had difficulty signing on to accounts. The Wife would file yearly biennial statements with the New York State Department of State electronically. The Wife filed the biennial statement for September 19, 2016^[90] listing xxxxx as the address for M & M DP, Inc. The last statement that the Wife filed was in 2017. The statement filed for September, 2018^[91] reflects the Husband listed at the chief executive officer and the Wife was removed as owner, stockholder and officer. As of January 22, 2020, the Wife believed that she had zero responsibilities for M & M DP. The Wife signed no documents transferring her interest and received no money for same.

The Wife testified more about the Business. From 2010 to 2018, tax returns were filed by Mr. Schulken. The Wife provided Mr. Schulken with the information he needed each month. Mr. Schulken prepared the sales and payroll taxes, as well as the parties' personal taxes. Both parties hired Mr. Schulken. The information provided to Mr. Schulken was the information that the Husband wanted to provide to Mr. Schulken, such as, for example, the list of deposits that were taxable and nontaxable, plus payroll information for the crew. The Wife acknowledged that not all crew members were paid "on the books", thus, the information given to the accountant was for the "on the books" crew. From March of 2016 through December of 2016, on average, the Husband had three crews totaling ten to twelve employees each week. All of the employees have worked for the Husband for the last twenty years or more. The Husband told the Wife not to disclose the cash payments to the accountant. The Husband would, at times, do work for the customers which was not in the contract. The Wife would receive invoices from suppliers for work not reflected in contracts. The Husband would "keep" this money from work performed outside of the work described in the contract. When the Wife would write-out proposals, she was told by the Husband what to write and the Husband would "price" the job, including labor and materials.

The Wife testified as to work the Business did for the Milleridge Inn. There were several contracts and proposals in 2017. The work performed was planting, stone work, sprinkler systems, sodding, flower pots, and mulching. It was an "evolving job", with multiple contracts. The Wife obtained the information on these jobs from the Husband. The Wife was aware of $315,000 worth of contracts. The Wife believes around $150,000 was paid as shown from checks and cash. The Husband was paid directly by the owner. The Husband gave the Wife an envelope from the owner, which had no cash in it. The Husband stated that he received $25,000 twice from the owner in cash. The Husband took the cash and "hoarded" it.

The Wife testified about her involvement with a tax attorney. After the commencement of this action, the Wife retained a tax attorney because of the undersigned Justice and there being the possibility of IRS involvement. The Wife "learned" of "a lot of" problems, for example, fraud, unreported cash and payroll issues. Art the same time, the Wife was concerned with a criminal issue. At that time, she had to report to the District Attorney due to a warrant issued against her for writing bad checks to Allied. Her tax attorneys^[92] hired an accountant to amend her tax returns. The Wife provided the business tax returns for the business and the personal tax returns from 2015 to 2018 to the accountant hired by her tax attorneys.

The Wife testified about her involvement with the Nassau County District Attorney's Office. She received a letter from that office.^[93] The letter stems from, in sum and substance, checks to Allied in the sum of $4,900. The checks were drawn on the business account and the Wife wrote and signed all three checks at the direction of the Husband. The checks were post-dated in December of 2019 and the Wife knew there was enough money in the business account, but the account was closed by Chase bank on April 30, 2020. In July of 2020, when the Wife received this latter, the Wife learned that checks were given to Allied by the Husband in May of 2020. At the time the account was closed, there was exactly $4,900 in the account. At this time, the Wife was not the shareholder of the company and did not instruct the bank to close the account. The Wife was exonerated of the charges because there was sufficient money in the account. The Wife received a letter dated November 4, 2020 from the District Attorney^[94] stating that there were not prosecuting her. The business account statement^[95] reflects that $4,900 was left in the account.

The Wife testified about her deposition. She believes the Husband took her deposition to terrorize her. It was done in the office of her former counsel. She had a bodyguard accompany her due to her fear of the Husband. She did not feel safe alone with the Husband. The deposition took most of the day, and the Wife was "yelled at" for five hours by the Husband's counsel. The questions posed to her regarding the Business, money and expenses were "harassing". The Wife did not answer the questions the way she wanted, as she did not know how to answer the questions because she was "knee deep" in her criminal matters and the IRS issues.

The Wife testified about the Husband's use of credit cards. While the Husband denied having credit cards or the use of them, the Husband, in fact, had credit cards and used them. The Husband had Visa credit cards.^[96] The Husband had credit cards in his name and in the name of the Husband and the Business. The credit cards were used for personal expenses, such as at Louis Vuitton and at restaurants, like Umberto's of New Hyde Park.

The Wife testified as to her credit score. Prior to the commencement of the action, the Wife's credit score was a 783. After commencement, her credit score "plummeted" to 463.

The Wife testified about the rent collected on the Wantagh Property. While the Wife was the co-owner of the Wantagh Property, she received no money from the rental income of that property. The Husband testified that he was collecting $6,000 per month in rent on that property, but she received no portion of that money.

The Wife testified about life insurance policies. During the marriage, the Wife had a life insurance policy which was debited every month from the business account in the sum of $408 per month. It had a cash surrender value of $54,180.This policy was in effect until after the commencement of this action. She last saw a document about the policy in March or April of 2020, which is around the time the bank account was closed. The Husband had an annuity opened during the marriage. The Husband's annuity statement^[97] reflected a value of $13,876 as of the statement ending December 31, 2019.

The Wife testified as to her debt. It is approximately $115,000. $26,000 of that sum was incurred after the commencement of this action to pay her basic living expenses, such as groceries, gas and other "normal things". The Wife has $52,113.91 in debt on a Marriot Visa card. Her debts remain outstanding, and nothing has been paid. The Wife also testified about $35,000 in debt for E.I.'s college expenses which was incurred commencing 2015. No payments were made towards this after the commencement of this action.

Cross-Examination

The Wife was cross-examined about her assertion regarding the Husband's obligation to pay for her Bentley automobile. The Wife acknowledged that there was no reference to the Husband paying for the Wife's Bentley automobile in the Stipulation^[98] even though she testified that the Husband was supposed to pay this expense pursuant to this Stipulation. The Wife acknowledged selling her Bentley automobile to a dealer after the commencement of the action, which the Wife testified that she did on the advice of her prior counsel.

The Wife was cross-examined about the Husband's health. The Wife acknowledged that from February 2015 through the Fall of 2015, when the Husband was undergoing regular chemotherapy treatments, that the Husband worked less, and that his routine was "drastically altered". The Wife acknowledged that the Husband earned less money that year. She acknowledged that in April of 2015, the Husband had an allergic reaction to chemotherapy and almost went into kidney failure.

The Wife was cross-examined about the Illona Lane Residence. She acknowledged that the net proceeds of sale of the Ilona Lane Residence were $455,374.12 which were paid to the Husband and Wife. The Wife acknowledged handling the renovation of the Bellmore Residence.

The Wife was cross-examined about the Husband's will. The parties went together to make a will because the Husband was dying in or around 2015 to 2016. The Wife took the Husband to prepare a will and trust to Ms. Victor in 2016. The Wife was unsure who has the original will. The Wife contacted Ms. Victor and the Husband spoke to Ms. Victor. Prior to seeing Ms. Victor, the Husband and Wife had many conversations about getting a will and executing a trust, and the Husband told the Wife that they "need" to do this so that the Wife would have "nothing" to worry about. The Wife never went to Ms. Victor's office prior to going with the Husband. Both parties gave Ms. Victor the information for the will and trust and both parties returned to execute same. The Wife recalls the will and trust being explained and read to both parties.

The Wife was cross-examined about the Husband's property at the time of the parties' marriage. She acknowledged that at the time of their marriage, the Husband owned a home in Merrick, which was subsequently sold. At the time of the parties' marriage, the Husband ran the Business, but whenever he changed the name of the Business, it was always some permutation of the original name, to wit: Mike & Marcos. At the time of the parties' marriage, the Husband had equipment for his Business.

The Wife was cross-examined about her efforts to find employment. The Wife specified no efforts since the commencement of this divorce action to obtain employment. She stated that she does not need to find a job, as she has the ability to work for her sons, but this cannot meet her financial needs. The Wife acknowledged that she has not looked for a job, as she is waiting on the outcome of the trial of this matter.

Re-Direct Examination

The Wife testified that the rental income from the gas station and the income from the Business were the only sources of her income. The Wife reiterated much of her testimony about the Husband's "routine": he received cash, checks made payable to the Husband or checks made payable to cash, and the Husband would give the Wife money for to meet payroll. The Wife testified and reiterated that she only spoke with Ms. Victor in the presence of the Husband. Prior to signing these estate documents, the Bellmore Residence was held jointly with rights of survivorship. After the Trust was signed, the Wife testified that if both parties died, the property would pass to E.I. and P.I. The Wife reiterated that the Bellmore Residence was transferred into the Trust.

Post-Trial Summations

The parties' written Post-Trial Memorandums were submitted simultaneously on January 26, 2024. The parties' respective positions are set forth in a seriatim division in ths Decision and Order juxtaposed to the issues decided herein.

DECISION + ORDER

It is well established that where the findings of fact rest in large measure on considerations relating to the credibility of the witnesses, deference is owed to the trial court's credibility determinations. See Pappas v. Liapes, 138 A.D3d 943 (2d Dept. 2016); see also Lawson-Groome v. Smalls, 144 AD3d 633 (2d Dept. 2016). While credibility is a consideration in every trial, in this case, where the facts were so highly contested, it became even more central to the Court's determination. The testimony of both parties, for the most part, was strikingly incredible with a marked unreliability to it. It was abundantly evident to the Court that both parties exhibited a pattern of deliberately and deceitfully scheming to advance his or her own self-interest(s), leaving the Court without an ability to rely upon the credibility of the parties themselves, except for only a few portions of their testimony, as described in this Decision and Order. Stated more directly, both parties lacked any semblance of credibility. The Court not only considered the testimony and evidence presented, but also assessed the demeanor, sincerity and tone of the witnesses. The testimony of the parties themselves was, in large part, "finger pointing" at the other. Neither party displayed any remorse, nor assumed any degree of culpability, for either their blatant deceit to the relevant taxing authorities. The Husband exhibited no remorse or degree of culpability for providing misleading statements to financial institutions regarding his income. The Wife, on the other hand, sought to blame her own attorney for literally lying under oath at her deposition. Both parties knowingly provided incomplete and ostensibly false information to their accountant at times, and yet, at the same, time, sought to shift blame to that very accountant for their tax issues. All of that is unbelievable. Collectively, during the marriage, these parties lived their lives on substantial unreported cash income.

GROUNDS

On April 22, 2022, an Inquest was held before this Court and the Husband was granted a Judgment of Divorce pursuant to DRL § 170 subd. (7), which Judgment was held in abeyance pending adjudication of the remaining financial issues.

EQUITABLE DISTRIBUTION

DRL § 236(B)(5)(a) provides:

Except where the parties have provided in an agreement for the disposition of their property pursuant to subdivision three of this part, the court, in an action wherein all or part of the relief granted is divorce . . . shall determine the respective rights of the parties in their separate or marital property, and shall provide for the disposition thereof in the final judgment.

The Domestic Relations Law recognizes that a marital relationship is an economic partnership, and during such marriage, spouses share in both its profits and losses. When the marriage is dissolved, however, courts are charged to equitably distribute both the assets and liabilities remaining from the marriage. Fields v. Fields, 15 NY3d 158 (2010). A trial court considering the factors set forth in the Domestic Relations Law has broad discretion in deciding what is equitable under all of the circumstances. Krolikowski v. Krolikowski, 110 AD3d 1449 (4th Dept. 2013). In recognizing marriage as an economic partnership, DRL § 236 mandates that the equitable distribution of marital assets be based on the circumstances of the particular case and directs the courts to consider a number of statutory factors. Potvin v. Potvin, 193 AD3d 995 (2d Dept. 2021). DRL § 236(B)(1)(c) provides:

The term "marital property" shall mean all property acquired by either or both spouses during the marriage and before the execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held, except as otherwise provided in agreement pursuant to subdivision three of this part. Marital property shall not include separate property as hereinafter defined.

Indeed, when it comes to the equitable distribution of marital property, DRL § 236 (B)(5)(d)(13) authorizes the trial court to take into account "any other factor which the court shall expressly find to be just and proper." Consequently, the trial court has substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances. Mahoney—Buntzman v. Buntzman, 12 NY3d 415 (2009). However, the Court is ever-mindful that equitable distribution does not necessarily indicate equal distribution. Henery v. Henery, 105 AD3d 903 (2d Dept. 2013); see also Ropiecki v. Ropiecki, 94 AD3d 734 (2d Dept. 2012). It is well established that the fundamental purpose of equitable distribution law is the recognition of marriage as an economic partnership (see e.g. Fields v. Fields, 15 NY3d 158 (2010); Price v. Price, 69 NY2d 8 (1986); Mesholam v. Mesholam, 11 NY3d 24 (2008)) and that marital property "should be construed broadly in order to give effect to the `economic partnership' concept of the marriage relationship recognized in the statute" (see Price, supra; see also Burke v. Burke, 175 AD3d 458 (2d Dept. 2019)).

In this case, the Court has carefully considered the factors in equitably distributing the marital assets as follows:

1. The income and property of each party at the time of marriage and at the time of the commencement of the action. The trial record was unclear as to each party's income at the time of their marriage. Given that both parties lacked credibility, the Court assumes that both parties were living-off of substantial unreported income at the time of their marriage. At the time of the marriage, the record was unclear as to what assets the parties had, except that the Husband had the Business and a BMW motorcycle.

2. The duration of the marriage and the age and health of both parties. This is a long-term marriage of approximately twenty-eight (28) years. The Husband is currently seventy-five (75) years old and the Wife is currently fifty-nine (59) years old. Both parties corroborated the other's testimony that the Husband was previously diagnosed with Non-Hodgkin's lymphoma, but his lymphoma appears to currently be in remission and the Husband returned to work.

3. The need of a custodial parent to occupy or own the marital residence and to use its household effects. This factor is inapplicable. Both of the parties' two (2) children are emancipated.

4. The loss of inheritance and pension rights upon the dissolution of the marriage as of the date of the dissolution. The Wife will lose the right to inherit from the Husband and the Husband will lose the right to inherit from the Wife, unless otherwise expressly set forth in the Trust, if applicable.

5. Loss of health insurance benefits upon dissolution of marriage. The Record was barren of any documentation concerning existing health benefits of the parties.

6. Any award of maintenance. The Court has considered that it has awarded the Wife the maintenance in the sum of $1,000.00 per month and for the duration set forth herein of seventy-eight (78) totals months (see infra), which the Court has considered in equitably distributing the parties' assets and liabilities.

7. Any equitable claim to interest in or direct or indirect contribution made to the acquisition of such marital property of 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 has considered the Wife's efforts in raising the parties' two children, who are now emancipated, with little to no help or input from the Husband during the parties' marriage.

8. The liquid or non-liquid character of all marital property. The largest asset of this marriage, at this point, appears to be the Wantagh Property, which the Court has considered in the equitable distribution of the parties' assets and the allocation of their liabilities.

9. The probable future financial circumstances of each party. This factor was difficult for the Court to consider, as the parties lived-off of substantial unreported cash income during their marriage. The parties went years not reporting cash revenue from the Business. The Court found credible the testimony of E.I. that the Husband collected substantial sums of cash from the customers of the Business, but also finds that the Wife, who provided many secretarial and clerical services of the Business, knew of that cash revenue and failed, for years, to report it to the accountant. The Wife also acknowledged at trial that she did not need to find a job.

10. The impossibility or difficulty of evaluating any component asset of 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. The Husband will retain the Business.

11. The tax consequences to each party. Both parties, for years, have lived-off of substantial unreported income. The Court finds it nearly impossible to ascertain what the true tax consequences to these parties will be in the future, except pursuant to current tax laws. In addition, the Court has considered the equitable allocation of the parties' personal tax liabilities and the allocation of the Business tax liability.

12. The wasteful dissipation of assets by either spouse. The credible evidence at the trial reflected that the Wife wastefully dissipated $272,168 in marital assets. The Court has considered that portions of that money were contained in personal checking accounts and portions of that money were contained in business accounts, and the Court has equitably recompensed the Husband as set forth herein (see infra).

13. Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration. See "12", supra.

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. The Wife testified, at length on her case-in-chief, with respect to allegations of domestic violence committed against her by the Husband, such as, for instance, the Husband dragging the Wife by her shirt, the Husband breaking the Wife's finger, and the Husband punching the Wife. However, the Court also viewed a video, which was received in evidence,^[99] of the Wife grabbing and pulling the Husband by the hood of his sweatshirt, and swinging her pocketbook and hitting the Husband in his upper body with it. The Court finds that both parties have committed acts of domestic violence against the other.

15. In awarding the possession of a companion animal, the court shall consider the best interest of such animal. This factor is inapplicable.

16. Any other factor which the court shall expressly find to be just and proper. The Court has considered that the Wife acknowledged at trial to giving untruthful answers at her deposition, and, while the Court's determination herein depends, in part, upon the credibility of the witnesses, notes that it could not, generally, rely upon the Wife's testimony at trial. The Court has also considered the Husband's multiple misrepresentations regarding his income, and the Court could likewise not rely upon the Husband's testimony at trial. The Court has also considered, in arriving at an equitable distribution of the parties' assets and liabilities, that the Bellmore Residence is the property of the Trust and not subject to equitable distribution (see infra).

*

In equitable distribution, courts are charged with classifying, valuing and distributing assets and liabilities. The initial determination of whether a particular asset is marital or separate property is a question of law. L.K.F. v. M.T.F., 82 Misc 3d 1223(A) (Supreme Court Nassau County 2024); see also Renck v. Renck, 131 AD3d 1146 (2d Dept. 2015). Each asset that is classified as marital property must be valued. See generally Sharabani v. Sharabani, 2017 NYLJ LEXIS 2707 (Supreme Court Kings County 2017) (once property has been deemed marital, the Court must fix a valuation date). The valuation of a marital asset must be founded in economic reality, and valuation is an exercise properly within the fact-finding power of the trial court. Davenport v. Davenport, 199 AD3d 637 (2d Dept. 2021). However, what is a matter of the court's broad discretion is selecting the dates for the valuation of marital assets and, depending on the particular circumstances of the case, the court may appropriately fix different valuation dates for different assets. Pappas v. Pappas, 140 AD3d 838 (2d Dept. 2016). The trial court has broad discretion in selecting valuation dates and may select any date between the date of commencement of the action and the date of trial. Carter v. Fairchild-Carter, 199 AD3d 1291 (3d Dept. 2021); see also DRL § 236(B)(4)(b). The court must then distribute the particular asset, and a trial court is vested with broad discretion in making an equitable distribution of marital property. Mahoney v. Mahoney, 197 AD3d 638 (2d Dept. 2021) (emphasis added); see also Westbrook v. Westbrook, 212 AD3d 1014 (3d Dept. 2023) (court has substantial discretion to fashion equitable distribution of marital assets) (emphasis added).

*

A. The Wantagh Property

The Parties' Positions. The Wife seeks to retain the Wantagh Property.^[100] The Husband seeks to retain the Wantagh Property.^[101]

Classification. While, indeed, the Wantagh Property was initially purchased in the name of the Business, it was acquired by the Business during the marriage. As the testimony of the Husband reflects:

Q: Now, the business property, xxxx Merrick Road, when was that acquired?

A: I think about 15, 20 years back.

Q: What name was it acquired in?

A: M &M Ld, my name.

* * *

Q: Now, is that still the case —

THE COURT: I'm still not clear. Bear with me.

When the property at xxxx Merrick Road was purchased, was it under the corporate name or under your individual name?

THE WITNESS: Under the corporate name, M & M L.

The Wantagh Property was clearly acquired during the course of the parties' marriage.^[102] The deed to the Wantagh Property^[103] reflects, in sum and substance, that the Husband and the Wife acquired the property in their joint names on September 25, 2014 from the Business; again, during the parties' marriage. It is, therefore, presumptively a marital asset. Property acquired during the marriage is presumed to be marital. Iacono v. Iacono, 145 AD3d 972 (2d Dept. 2016). Neither party introduced or presented any evidence to rebut the presumption that the Wantagh Property is a marital asset. Therefore, the Court classifies the Wantagh Property as a marital asset subject to equitable distribution.

Valuation. The Wantagh Property ". . . consists of a total of 0.27+ acres of land currently improved with a 1-story automotive repair building . . ." and ". . . [t]he subject is currently configured as 2 rentable units . . ."^[104] The Wantagh Property is, therefore, considered commercial real estate. While the Wantagh property was valued by BCS as of November 13, 2020^[105] at $600,000.00, and while neither party offered any alternative evidence at trial as to the value of the Wantagh Property, the Court does not find that it must set a valuation date for same, as it is ordering the Wantagh Property sold for its fair market value. The Court does not find that the Wantagh Property must be sold for only $600,000.00 given the fact that nearly four years have elapsed since the appraisal. However, the Court does find that, given the aforesaid appraisal, and given that the Wife proffered no other evidence of the value of the Wantagh Property, that same shall be initially listed for not less than $600,000.00.^[106]

Distribution. These parties cannot agree on who, if anyone, should retain the Wantagh Property; as both parties seek its retention. Given the parties' illiquid status, their lack of retirement assets, their lack of meaningful money in checking and savings accounts, and their history of collecting unreported cash revenue from the Business, along with the credits set forth in this Decision and Order with respect to the distributive award to the Wife for her share of the Business (see infra), the retroactive maintenance arrears due to the Wife (see infra), and the credits and offsets due to the Husband for the Wife's marital waste (see infra), this Court finds no other alternative but to compel the sale of the Wantagh Property. This is especially so given the fact that the Bellmore Residence (see infra) is the property of the Trust. The Court finds that the Wantagh Property is the largest asset of this marriage, and the largest asset by which any maintenance arrears, distributive payments and other offsets with respect to the parties' bank accounts, can be satisfied. The parties' history of collecting and profiting off-of substantial unreported cash income leads this Court to conclude that the only remedy with respect to the Wantagh Property so as to ensure all arrearages, credits and adjustments are reconciled and secured is the sale of same. In terms of the actual distribution of the proceeds of the Wantagh Property, this Court finds that an equal distribution such that each party receives fifty (50%) percent of same to be appropriate. Here, the Court notes the undisputed assertion that the Wife raised the parties two children, virtually to the exclusion of and without any participation from the Husband. The Court finds this to be a significant contribution to this long-term marriage. See generally Yehia v. Goma, 2017 NY LEXIS 891 (Supreme Court Westchester County 2017) (suggests that in long-term marriages, the contributions of a homemaker are presumed to be equal to the contributions of a wage earner); see also Conner v. Conner, 97 AD3d 88 (2d Dept. 1983) (the term "contributions" is defined for both marital property and maintenance provisions in terms of the efforts made by a party as a spouse, parent, wage earner and homemaker). The Court has also considered the Wife's involvement in the Business, which was the largest source of income for these parties during the marriage. The Court has additionally considered that this is a marriage of approximately twenty-eight (28) years, and both parties made direct and indirect contributions towards the marital relationship. The Court finds the Husband was the financial breadwinner of the family, as he was the "guy" in the field, responsible for generating business for the family. The Court also notes the Wife's efforts and contributions to the Business. The Court has additionally considered the Wife's caretaking of the Husband's during the period that he was diagnosed with — and was undergoing treatments for — Non-Hodgkins lymphoma.

As to any carrying charges paid on the Wantagh Property during the pendency of this action, while there was testimony, in sum and substance, that there is a tenant in the Wantagh Property who pays rent and that any shortfall between the rent received and the total mortgage payment was paid by the Husband from his pocket, he failed to offer documentary proof of same. He failed to sufficiently quantify or prove how much in carrying charges he paid on the Wantagh Property during the pendency of this action. In the absemce of such verifiable actual proof, especially in light of the Husband's total lack of credibility as to his finances, this Court declines to award him a credit for sums paid towards the upkeep of the property pendente lite. The Court recognizes that there is a tenant in the Wantagh Property paying rent. For so long as the tenant remains in the property from the date of this Decision and Order until its sale, the parties are directed to utilize the rent received to defray the cost of the mortgage, real estate taxes and property insurance on the Wantagh Property. Any remaining shortfall, if any, shall be paid by the parties such that each party shall pay fifty (50%) percent of same (see infra). There was no testimony or evidence presented at trial that the rents received are in excess of the mortgage, real estate taxes and homeowner's insurance.

Accordingly, based upon all of the aforesaid, it is hereby:

ORDERED, that the Wantagh Property shall be placed on the open market for sale and sold in accordance with the terms and conditions of this Decision and Order; and it is further

ORDERED, that upon the sale and closing of title of the Wantagh Property, the net proceeds derived therefrom shall be distributed such that the Wife shall receive fifty (50%) percent of same and the Husband shall receive fifty (50%) percent of same, subject to any other further offsets and/or adjustments explicitly authorized by this Decision and Order; and it is further

ORDERED, that the parties, within sixty (60) days of the date of the service of this Decision and Order with Notice of Entry, shall list the Wantagh Property for sale with a real estate broker of their joint choosing, for not less than $600,000.00; and it is further

ORDERED, that the parties shall accept any offer within three (3%) percent of the listing price from any bona fide third party purchaser; and it is further

ORDERED, that if no offer is made within three (3%) percent of the listing price within the first sixty (60) days of listing the Wantagh Property, then, in that event, a two (2%) percent price reduction shall be implemented every sixty (60) days until the sale of the Wantagh Property; and it is further

ORDERED, that the parties shall still accept any offer within three (3%) percent of the lowered listing price after each sixty (60) day reduction until the sale is completed; and it is further

ORDERED, that both parties shall cooperate with the listing agent in effectuating the sale of the Wantagh Property, which includes, among other things, causing the Wantagh Property to be presentable and available for viewing at the broker's request; and it is further

ORDERED, that neither party shall impede the sale of the Wantagh Property; and it is further

ORDERED, that, commencing from the date of this Decision and Order through the closing of title with respect to the sale of the Wantagh Property, the Husband shall pay fifty (50%) percent and the Wife shall pay fifty (50%) percent of the payment of the mortgage, real estate taxes and any property insurance on the Wantagh Property, after applying the rent received from the tenant to defray the aforesaid costs; and it is further

ORDERED, that the Husband shall have a one (1) time right of first refusal to match the offer from a bona fide third party purchaser; and it is further

ORDERED, that the Husband shall have forty-five (45) days to obtain the financing to match said offer. If he fails to obtain said financing within this allotted time, the Wantagh Property shall be listed again for sale; and it is further

ORDERED, that upon the closing of title of the sale of the Wantagh Property, whether purchased by a bona fide third-party purchaser or by the Husband by matching the offer from a bona fide third party purchaser, each party's fifty (50%) percent share of the equity in and to the Wantagh Property shall be adjusted by the credits, offsets and monies due and owing to the other, all as more fully set forth in this Decision and Order (see infra); and it is further

ORDERED, that in the event that either party's share of the net proceeds of sale of the Wantagh Property are insufficient to cover the credits of any monies due to the other as specifically authorized by this Decision and Order, then, in that event, any remaining credits of any monies due to said party shall be paid by the other party within sixty (60) days of the closing of title with respect to the Wantagh Property.

B. The Bellmore Residence

The Parties' Positions. The Plaintiff seeks that the Court pierce the Trust and award him an equitable share in and to the Bellmore Residence, to wit: $315,000.00; the Plaintiff does not seek the sale of the Bellmore Residence.^[107] The Wife contends that the Bellmore Residence is no longer a marital asset subject to equitable distribution.^[108]

Classification. One of the principal issues which was the subject of this trial was whether or not the Court can, in effect, award equitable distribution of the Bellmore Residence. That of course depends on how the Bellmore Residence is classified, which means that the Court is tasked with examining the interplay between the Trust and equitable distribution.

The relevant provisions of the Trust^[109] provide as follows:

Article One

Establishing Our Trust

The date of this Irrevocable Trust Agreement is November 7, 2017. The parties to the agreement are C.I. and M.I. (the "Grantors") and P.I. and E.I. (our "Trustees"). Our Trustees may act on behalf of our trust independently.

Section 1.01 Identifying Our Trust

Our trust is called the "I Family Irrevocable Trust." However, the following format should be used for taking title to assets: "P.I. and E.I., Trustees of the I Family Irrevocable Trust dated November 7, 2017."

For the purpose of transferring property to our trust or identifying our trust in any beneficiary or pay-on-death designation, any description referring to our trust is effective if it reasonably identifies our trust.

* * *

Section 1.03 An Irrevocable Trust

This trust is irrevocable, and neither of us may alter, amend, revoke, or terminate it in any way.

Section 1.04 Transfers to the Trust

We transfer to our Trustee the property listed in Schedule A, attached to this agreement, to be held on the terms and conditions set forth in this instrument. We retain no right, title or interest in the principal of this trust or any other incident of ownership in any trust property.

(a) Character of Property Transferred

The character of any property transferred to this trust shall be determined as follows:

(1) Separate Property

If property title in the separate name of one of us is transferred to our trust, the person transferring the property shall be deemed to have made a gift immediately prior to transferring the property to this trust to the other of us to the extent of one-half of the value of the transferred property. Any such property transferred to our trust shall be deemed contributed one-half by each of us.

(2) Joint Property

Any joint property that we jointly transfer to our trust shall be deemed contributed one-half by each of us as tenants-in-common and shall be allocated one-half to each of our separate shares for the purpose of computing the income attributable to each of us during our joint lives, if any. If joint tenancy property is transferred to our trust, we shall be deemed to have severed the joint tenancy immediately prior to transferring the property and no right of survivorship shall exist with respect to such property.

(b) Trustee Acceptance

By execution of this agreement, our Trustee accepts and agrees to hold the trust property described on Schedule A. All property, including life insurance policies, transferred to our trust after the date of this agreement must be acceptable to our Trustee. Our Trustee may refuse to accept any property. Our Trustee shall hold, administer, and dispose of all trust property accepted by our Trustee for the benefit of our beneficiaries in accordance with the terms of this agreement.

(c) No Distributions of Principal

Our Trustee shall have no right, power, privilege, or authority to invade or distribute principal of the trust to or for the benefit of either of us, under any circumstances.

Section 1.05 Statement of Our Intent

We are creating this trust as part of our estate plan to ensure efficient management, administration, and protection of the trust assets for our beneficiaries.

It is our express intent that the principal of this trust will not be available to either of us for any purpose, including Medicaid.

In order to maximize the benefit to our trust beneficiaries, we give our Trustee broad discretion with respect to the management, distribution, and investment of assets in our trust. Our objective is that the assets in this trust will not be subject to the claims of any beneficiary's creditors.

* * *

Section 1.07 Our Other Lifetime Beneficiaries

While either of us is living, we are the only beneficiaries of trust income. Further, while either of us is living, P.I. and E.I. are the only beneficiaries of trust principal (our "Other Lifetime Beneficiaries").

The distribution provisions for income and principal are specified in Article Three.

Article Two

Trustee Succession and Trust Protector Provisions

Section 2.01 Trustee Succession

This Section governs the succession of our Trustees.

(a) Neither of Us May Serve as Trustee

Notwithstanding any provision of this agreement to the contrary, under no circumstances may either of us serve as Trustee at any time.

(b) Trustee Succession During Lifetime

We appoint the following to serve as Trustee of our trust while either of us is living:

P.I. and E.I., as Co-Trustees, with independent authority to act.

* * *

Article Three

Administration While Either of Us is Living

While either of us is living, our Trustee shall administer the trust as provided in this Article.

Section 3.01 Contributions Held in a Single Trust

While either of us is living, our Trustee shall retain all contributions to our trust in a single trust to be held or distributed according to the provisions of this Section. Our Trustee shall administer the trust as follows:

(a) Residence Provisions

In the event that our trust holds residential real property (included condominiums or the shares of cooperative apartment (used by either of us, then we have the exclusive right to possess, occupy, and use the real property (including the cooperative apartment) for residential purposes.

* * *

Article Five

Administration of Remaining Trust Property

Our Trustee shall administer the remaining trust property as provided in this Article.

Section 5.01 Division and Distribution of Remaining Trust Property

Our Trustee shall divide the remaining trust property into shares as follows:

  Name    Relationship    Share

  P.I.    Son             1/2

  E.I.    Daughter        1/2

The property listed on Schedule A of the Trust is "Ten Dollars Cash". The deed to the Bellmore Residence,^[110] executed on November 7, 2017, conveys title to the Bellmore Residence from "M.I. and C.I., his wife" to "P.I. and E.I., Trustees of the I. Family Irrevocable Trust, dated November 7, 2017".^[111] Both parties concede that the Bellmore Residence is the property of the Trust. In addition, Section 3.01(a)(3) of the Trust provides:

(3) Homestead Exemption

In order to claim homestead exemption rights under New York law, both of us shall have the right to use, possess, and occupy any real property that may be owned by the trust. Our interest in such real property shall be construed so as to qualify as our homestead property.

We currently reside in the real property located at 704 Sunrise Avenue, Bellmore, New York, which property is designated as our Homestead under New York law. It is our intention that the transfer of the aforementioned property into this trust shall in no way diminish the property's status as Homestead property under New York's Homestead laws. Our Trustee shall take any and all actions necessary to maintain the status of the property located at 704 Sunrise Avenue, Bellmore, New York as Homestead property, including any successor property which may qualify as our Homestead under New York law.

In Markowitz v. Markowitz, supreme court, in an amended judgment of divorce had, among other things, awarded the plaintiff therein an amount equal to the cash surrender value of a certain life insurance policy. Markowitz v. Markowitz, 146 AD3d 872 (2d Dept. 2017). The Second Department found that supreme court had erred in awarding the plaintiff the cash surrender value of the subject life insurance policy, noting that the life insurance policy was placed into a trust which was irrevocable and that neither party therein was a trustee with the power to transfer control of the trust assets. Markowitz, 146 AD3d at 873. The Second Department found, in this respect, that the "trust assets are unavailable to either party". Id. Similarly, in Hofmann v. Hofmann, the First Department affirmed a finding of supreme court which determined that any claims related to assets of the trust could not be asserted in equitable distribution. Hofmann v. Hofmann, 155 AD3d 442 (1st Dept. 2017). At issue in that case was the transfer of a house in Michigan. Hofmann, 155 AD3d at 442. The First Department found that the house in that matter had been transferred to an irrevocable family trust, with the house as the trust's main asset, that the defendant's knowledge of the terms of the trust was evidenced by her notarized signature on the trust agreement, and that the parties were not trustees and relinquished control over the trust assets. Id. at 442.

The Husband relies upon Riechers v. Riechers, decided nearly twenty-five (25) years ago, in 1997, which affirmed a finding that the trial court properly awarded the plaintiff therein one-half of the value of the subject trust in that case as of a certain date. Riechers v. Riechers, 267 AD2d 445 (2d Dept. 1999). In Riechers, the Second Department wrote that ". . . the trial court had the authority to determine whether assets used to create an offshore trust in the Cook Islands two years before the commencement of the divorce action were subject to equitable distribution . . ." Riechers, 267 AD2d at 446.

In the underlying Riechers case, the defendant therein, as general partner, established the Riechers Family Partnership, a limited partnership, and, at the same time, established, as settlor, an irrevocable trust called the Riechers Family Trust in the Cook Islands, which trust was funded with 99% of the assets of the limited partnership. Riechers v. Richers, 178 Misc 2d 170 (Supreme Court Westchester County 1998). The Riechers Family Trust portfolio was valued at approximately $4,000,000.00. Riechers, 178 Misc 2d at 172. In Riechers, the trust beneficiaries therein were the plaintiff (wife), the defendant (husband), and the children; the plaintiff was not personally named as a beneficiary, but, rather, she was named as "spouse of the settlor", and the designation and benefits thereof the plaintiff would lose on the entry of a judgment of divorce. Id. Nonetheless, the court in Riechers found that while it had no jurisdiction over the Riechers Family Trust, upon the divorce, the plaintiff (wife) would not longer be a beneficiary of the trust therein, and that the court had in personam jurisdiction over the defendant. Id. The Court in Riechers also found that while the ultimate determination of the entitlement to the corpus of the trust remains with the Cook Islands, the Court nonetheless awarded to the plaintiff (wife) one half of the value of the marital assets placed in the trust by the defendant. Id. In the underlying Richers case, the plaintiff (wife) had argues that she did not give an informed consent to the establishment of the trust or the transfer of marital assets to the trust and that she only became aware of the Riechers Family Trust after the divorce action was commenced. Id.

Here, the Court distinguishes Richers from the instant matter. First, unlike in Ricehers, where only the defendant-husband established the Riechers Family Trust, here, in this matter, both the Husband and the Wife executed the subject Trust, both as grantors. The subject Trust in this action expressly provides that the term grantor ". . . has the same legal meaning as "Settlor" . . . or any other term referring to the maker of a trust . . ." See Trust, Section 11.06(g). So, unlike in Riechers where it appears that only the defendant-husband was the settlor of the Riechers Family Trust, both the Husband and Wife in this case were the settlors of the Trust. The subject Trust in this matter also, in many instances, refers to the Trust as "our trust" or refers to the Trustee as "our trustee". See Trust, including, without limitation, Section 9.22; Section 9.22(a); Section 10.01; Section 10.02; Section 10.03; Section 9.19; Section 9.18; Section 9.05; Section 9.01; Article Six; Article Five; Section 5.02; Article Four; Section 3.01(c).

Second, the Court finds that the plain text of the Trust evidences an intent of both parties to exclude the assets in the Trust from equitable distribution. This Court, under Richers, supra, has the authority to determine whether assets used to create the subject Trust were subject to equitable distribution. Therefore, a careful examination of the text of the Trust's is the best evidence of whether or not the property within the Trust should be subject to equitable distribution. Here, the Trust reflects that both parties were the settlors of the Trust (see supra; see Article One; see Section 11.06(g)), that ". . . [t]his trust is irrevocable, and neither of us may alter, amend, revoke, or terminate it in any way . . ." (See Section 1.03), that ". . . [w]e retain no right, title, or interest in the principal of this trust or any other incident of ownership in any trust property . . ." (see Section 1.04) (emphasis added), and that ". . . [i]t is our express intent that the principal of this trust will not be available to either of us for any purpose. . ." (see Section 1.05) (emphasis added). It is therefore clear to the Court that the intent of both parties was to exclude any property of the Trust from equitable distribution.

Third, unlike the wife in the Riechers case, who was a beneficiary of the Riechers Family Trust property as "spouse of the settlor" (see Riechers, supra), here, the Husband was not a beneficiary of the subject Trust. Section 1.07 of the subject Trust is clear:

While either of us is living, we are the only beneficiaries of trust income. Further, while either of us is living, P.I. and E.I. are the only beneficiaries of trust principal (our "Other Lifetime Beneficiaries").

In this agreement, "Other Lifetime Beneficiaries" refers only to P.I. and E.I., and does not include either of us. As specified in Section 1.04(c) above, under no circumstances may our Trustee invade or distribute trust principal to or for the benefit of either of us.

(emphasis added).

Here, the express text of the Trust is that the Husband and Wife were only the beneficiaries of trust income. There was no testimony or evidence at trial that any income was derived from any property of the Trust. However, the only beneficiaries of the trust principal are P.I. and E.I., and that the Trustees of the subject Trust may not invade or distribute Trust principal to either of the parties. To this point, it is abundantly clear to the Court that by placing assets into the subject Trust, the parties' intent was to divest themselves of any interest, marital, equitable or otherwise in and to any Trust principal.

Fourth, the Court has considered the Husband's argument that the Wife duped him into signing a deed transferring the Bellmore Residence into the subject Trust.^[112] The Court finds this argument unpersuasive and unsupported by the Record. Stated simply, the Court does not believe the Husband. The Husband testified as follows:

Q: When did you first learn about the existence of a trust? I'm not talking about the house being in the trust. When did you first learn about the I. Family Irrevocable Trust?

A: I didn't know then. I didn't have any idea. I just find out when, like I said, when I serve the papers.

MR. ROSEN: Objection, not responsive. Move to strike.

THE COURT: That's when he was served with the divorce papers, right?

THE WITNESS: Yes.

MR. ROSEN: Excuse me. The question was: When did you first learn of the trust? He didn't answer it.

THE COURT: I believe he did. HE said when you were served with the divorce papers.

MR. ROSEN: He's the plaintiff.

THE COURT: This is his testimony.

THE WITNESS: I served the papers.

See August 18, 2022 Transcript.

At the outset, the Court notes that during this four-and-a-half year litigation, the Husband never made an application to or commenced any action in any Court of competent jurisdiction seeking to invalidate the Trust. The Husband's inaction and failing to move to set the trust aside during this lengthy litigation is a factor that the Court has considered, which the Court finds undercuts the Husband's argument that, in effect, he was duped into signing the trust and that the Wife duping the Husband into signing the trust is "tantamount to fraud".^[113]

Fifth, the Court has considered the Husband's testimony, in effect, that he signed the Trust document and did not know what he was signing. The Court carefully observed the Husband during this line of questioning. The Court does not believe him. The Husband's testimony was as follows:

Q: How did she tell you she knew her very well?

A: She used to be in contact with her about three or four times she said, to make sure that we were going there to sign the will. When I went there to sign the will, I didn't want to sign the will. I said to her, I really don't like — I'm not ready to sign the paper, I would like to see what it is. I would like — I want to go over the paper with somebody to see. And then I sign the paper, she said to me, so I'm your wife, you don't trust me? I'm your wife, trust me, this is only the will. And I say, I really don't want to, but she insist. Then I say, okay. Her and lawyer, they both insist for me to sign the paper and I sign the paper.

Q: Did you have any idea you were signing an irrevocable trust?

A: No, because when it comes to a lot of things, I'm very stupid, I couldn't read. I couldn't do anything, so I let her do everything. Like I said before, I'm only good at work. I'm very good at what I do. When it come to a lot of paper, I'm not that smart.

See August 18, 2022 Transcript.

The Court finds the Husband's feigned ignorance as to what he was signing to be completely lacking in credibility. The Trust document, in and of itself, provides:

Grantors and Trustees

We hereby execute this agreement on November 7, 2017.

We certify that we have read this agreement, that we understand it, and that it correctly states the provisions under which the trust property is to be administered and distributed by our Trustee.

The subject Trust itself belies the Husband's contention that he did not know what he was signing; it expressly states that both parties understood what they were signing. See generally Hofmann v. Hofmann, 155 AD3d 442 (1st Dept. 2017) (wife was fully aware of the specific terms of the trust, as evidenced by her notarized signature on the Trust agreement). The Husband's notarized signature appears on the Trust. The Husband's excuse that he just signed the document and didn't know what he was signing, is, in its rawest form, just an excuse. The Husband did not indicate that he was under any high-pressure tactics to sign the subject Trust. He had two options: sign it, or not sign it. He chose the former. The Husband, in any event, has not convinced this Court that the Wife intended to "dupe" him into signing the Trust in order to act inequitably. See generally Oppenheim v. Oppenheim, 168 AD3d 1085 (2d Dept. 2019) (court providently exercised its discretion in declining to award equitable distribution of the value of the trust; creation of the trust do not support contentions that a party acted inequitably). To this end, the Court does not classify the Bellmore Residence as a marital asset subject to equitable distribution. Rather, it is an asset of the Trust, subject to the terms and conditions of the Trust. Accordingly, and for all of the foregoing reasons, it is hereby:

ORDERED, that the Bellmore Residence, which is the property of the Trust, is not subject to equitable distribution and shall be subject to and distributed pursuant to the terms and conditions of the subject Trust.

C. The Business

The Parties' Positions. The Husband argues, in sum and substance, that he owned the Business prior to the marriage, and that any "variation to the formal business name and ownership is of no moment".^[114] He effectively argues, therefore, that the Business is his separate property, that the Wife failed to prove the value of the Business as of the date of the parties' marriage, and that the Wife failed to establish her burden to prove the appreciation of value of the Business. The Wife argues that the Business was transferred to her during the marriage and that she should be awarded fifty (50%) percent of the value of the business in the form of a distributive award.^[115]

Classification. Property acquired during the marriage is presumed to be marital property and the party seeking to overcome such presumption has the burden of proving that the property in dispute is separate property. Spera v. Spera, 71 AD3d 661 (2d Dept. 2010). That presumption is well-known, and, unless clearly separate, property acquired during the marriage should be deemed marital property. Fields, 15 NY3d at 165. However, property acquired before marriage remains separate and property acquired in exchange for said property, even if the exchange occurs during marriage, is separate property. Chernoff v. Chernoff, 31 A.D.3d900 (3d Dept. 2006). Separate property can be transmuted into marital property when the actions of the titled spouse demonstrate his intent to transform the character of the property from separate to marital. Imhof v. Imhof, 259 AD2d 666 (2d Dept. 1999); see also Sherman v. Sherman, 304 AD2d 744 (2d Dept. 2003); see also Spera, 71 AD3d at 664. In Philogene v. Delpe-Philogene, the Second Department found that the defendant therein changed the character of the property from separate property to marital property by placing the marital residence in both parties' names. Philogene v. Delpe-Philogene, 195 AD3d 963 (2d Dept. 2021). The Second Department also wrote that a separate property credit is not precluded as a matter of law when separate property has been transmuted into marital property. Philogene, 195 AD3d at 965. The Court disagrees with the Husband that any variation to the formal business name and ownership is of no moment. While the Husband may have formed and incorporated the Business in 1970, before the parties' marriage, on December 10, 2010, the stock certificate reflects that one hundred (100%) percent of the shares of stock were issued to the Wife for the Business, at that time known as Mike & Marcos DP, Inc.^[116] The Business, at that time known as M & M DP, Inc., was incorporated on September 23, 2010, as reflected in the Certificate of Incorporation.^[117] The Husband also conceded in his testimony on his direct examination that the Wife became the owner of the Business during the marriage (see infra). Inasmuch as M & M DP, Inc. was formed during the marriage, and inasmuch as the Wife acquired one hundred (100%) percent of the shares of stock in the Business during the marriage, the Court finds that the Husband intended to transform the separate property character of the Business to marital property.^[118] The Court therefore classifies the Business as marital property subject to equitable distribution.

Valuation. Courts have discretion to value "active" assets such as a professional practice on the commencement date of the action. David v. Friedman, 22 AD3d 707 (2d Dept. 2005). In David, the Second Department found that the trial court's determination to use the date of commencement as the valuation date of the subject business in that action to be a provident exercise of discretion. David, 22 AD3d at 708. The fact that a business may constitute an active asset weigh in favor of valuing them as of the date of commencement. See generally Carter v. Fairchild-Carter, 199 AD3d 1291 (3d Dept. 2021). See also Anonymous v. Anonymous, 2006 NYLJ LEXIS 2433 (Supreme Court Nassau County 2006) (a spouse's interest in a business, is an active asset which should generally be valued as of the date of commencement of the action). Here, Brisbane valued the Business as of February 4, 2020, which was the commencement date of this action. No other documentary evidence was received at trial which may have reflected any other date of valuation. Therefore, the Court elects to value the Business — an "active" asset" — as of the date of commencement of this action, to wit: February 4, 2020. Brisbane concluded that the estimated value of ownership of the Business was $456,000 as of February 4, 2020. While the Wife, in her Post-Trial Memorandum, appears to take issue with the valuation, arguing that the expert acknowledged that the value could depend upon the accuracy of the financial records, the Court found the testimony from the court-appointed expert to be highly credible, and the Wife failed to offer into evidence any rebuttal report or expert testimony to contradict the veracity of the Brisbane report. In fact, neither party offered any expert testimony or other documentary evidence as to an alternative value of the Business. The Court, therefore, elects to value the Business at $456,000.

Distribution. Both small businesses and professional practices are commonly valued, for purposes of marital dissolution, by using either an income approach or an asset-based approach. Boyajian v. Boyajian, 194 Misc 2d 756 (Supreme Court Nassau County 2003). As regards valuation of a business, there is no uniform method of fixing the value of an ongoing business for equitable distribution purposes and valuation is properly within the fact-finding power of the trial court, and the determination of a fact-finder as to the value of a business, if it is within the range of the testimony presented, will not be disturbed where valuation of the business rested primarily on the credibility of expert witnesses and their valuation techniques. A.C. v. J.O., 40 Misc 3d 1226(A) (Supreme Court Kings County 2013). The Court must first address the Husband's argument that awarding maintenance in addition to awarding the Wife a share of the value of the Husband's business is "double dipping".^[119] The Court disagrees with the Husband's argument.

In Palydowycz v. Palydowycz, the defendant owned two medical practices and an interest in an ambulatory surgical center. Palydowycz v. Palydowycz, 138 AD3d 810 (2d Dept. 2016). In the midst of trial, the parties stipulated to resolve the issues of maintenance and child support. Palydowycz, 138 AD3d at 811. At that juncture, the defendant moved to deny the plaintiff any distributive award based upon the value of his medical practices and the interest in the ambulatory surgery center. Id. While that motion was pending, the trial resumed, and the plaintiff presented the testimony of an expert accountant who used an income approach to value the defendant's medical practices and interest in the ambulatory surgery center. Id. at 811-812. With the Second Department explaining that the income valuation approach "considers the income generated by an asset over a period of time, and then capitalizes the income stream by use of a capitalization rate to reflect the value of the asset", the court noted that the plaintiff's expert concluded that the combined value of the two medical practices was $1,830,000 and that the value of the defendant's interest in the surgery center was $638,000. Id. at 812. The supreme court then granted that branch of the defendant's motion which was to deny the plaintiff any distributive award based upon the value of his medical practices and interest in the ambulatory surgical center, reasoning that awarding the plaintiff a distributive share of these assets would constitute double counting because the income stream the plaintiff's expert used to value the defendant's medical practices and interest in the ambulatory surgical center was the same income stream used to determine the defendant's maintenance obligation. Id.

The Second Department in Palydowycz reversed, writing, in part, as follows:

The rule against double counting applies where the projected earnings used to value an intangible asset, such as a professional license, are also used to calculate a maintenance award. However, it is only where the asset is totally indistinguishable and has no existence separate from the income stream from which it is derived that double counting results (Keane v. Keane, 8 NY3d at 122, quoting Grunfeld v. Grunfeld, 94 NY2d at 704). In Keane, the Court of Appeals cautioned against applying a bright line rule that any income-producing asset distributed as marital property may not also be considered a source of income for maintenance purposes (8 NY3d at 121). In this regard, the Keane court explained that any valuation of an income-producing property, such as the rental property at issue in that case, necessarily takes into account the income-producing capacity of the property (see id.). Thus, to prevent any income derived from any income-producing property from being double counted would . . . significantly limit the trial court's considerable discretion in equitably distributing marital property and awarding maintenance" (id.).

In cases decided by this Court subsequent to the Court of Appeals' decision in Keane, we have repeatedly concluded that distributing a party's business and awarding maintenance based upon the income earned from that business does not constitute impermissible double counting because a business is a tangible, income-producing asset (see Sutaria v. Sutaria, 123 AD3d 909, 2 N.Y.S.3d 124 [2014]; Shah v. Shah, 100 AD3d 734, 954 N.Y.S.2d 129 [2012]; Weintraub v. Weintraub, 79 AD3d 856, 912 N.Y.S.2d 674 [2010]; Kerrigan v Kerrigan, 71 AD3d 737, 896 N.Y.S.2d 443 [2010]; Groesbeck v Groesbeck, 51 AD3d 722, 858 N.Y.S.2d 707 [2008]). We also extended this rationale to the distribution of a medical practice in Griggs v. Griggs (44 AD3d 710, 713, 844 N.Y.S.2d 351 [2007]), wherein we stated that the rule against double counting does not apply where, as here, the asset to be distributed is a tangible income-producing asset, rather than an intangible asset, such as a professional license, the value of which can only be determined based on projected earnings.

Here, the defendant's medical practices, which employ other individuals including several doctors, and his interest in an ambulatory surgical center, are not intangible assets which are totally indistinguishable from the income stream upon which his maintenance obligation was based (Keane v. Keane, 8 NY3d at 122), and the valuation method used by the plaintiff's expert to determine the fair market value of these assets does not change their essential nature. Accordingly, the Supreme Court erred in concluding that it had no discretion to award the plaintiff any distributive share of the value of these assets because the parties considered the defendant's entire 2010 income in reaching a stipulation as to his maintenance obligation. To the extent that Rodriguez v. Rodriguez (70 AD3d 799, 894 N.Y.S.2d 147 [2010]) is inconsistent with our determination, it should no longer be followed.

Id. at 812-813. Similarly, in Westbrook v. Westbrook, the Second Department found the business therein to be a tangible, income-producing asset, noting that the business employed four other individuals, owned four vehicles, held $50,000 in cash, $29,000 in inventory, and $55,000 in property and equipment. Westbrook v. Westbrook, 164 AD3d 939 (2d Dept. 2018).

Here, while Brisbane may have chosen the capitalized returns method under the income approach, instead of using either the market approach or the asset-based approach, the Court the Court finds that the Business is a tangible, income-producing asset. The Business here is not an intangible asset, such as a professional license, and the methodology chosen by Brisbane does not change the character of the Business. Rather, and similar to Palydowycz and Westbrook, the Business employs other individuals. The Brisbane Report reflects that, aside from the Husband and Wife, the Business employed five (5) named additional employees with two to three of them working during the same period. While the parties' themselves gave conflicting testimony as to how many workers were actually employed by the Business — whether "on-the-books" or "off-the-books", the inescapable conclusion was that there were, in fact, other employees of the Business. Additionally, the Facebook page of the Business^[120] reflects, among other things, a picture of seven (7) men, one of which is the Husband, and six (6) other men wearing different colored shirts with the same logo embossed thereon, leading the Court to the conclusion that the Business employs multiple employees. Furthermore, the Wife's private investigator credibly testified at trial that he observed, on varying dates, the Husband, in effect, interacting with multiple employees and that the crew different groups.

Moreover, and similar to Westbrook, here, as reflected in the Brisbane Report, the Business had equipment, such as vehicles, a trailer, lawn mowers, blowers and "other lawn maintenance equipment". The Brisbane Report also reflects that the vehicles held by and titled to the Business include a 1980 trailer, a 1985 International Dump Truck, a 1992 International Dump Truck, a 1994 International Dump Truck, a 1999 Bering truck, a 2000 Isuzu box truck, a 2002 Foster trailer, a 2003 Ford E350 and a 2006 Ford E350. The Court also notes that the Business had bank accounts in the name of the Business.^[121] Therefore, in light of the aforesaid, the Court does not find the Business to be an intangible asset which is totally indistinguishable from the Husband's income stream, and the Court finds that the Business has value other than the income it produces. See Westbrook v. Westbrook, supra. Ergo, the Court can award the Wife maintenance (see infra) in addition to awarding her an equitable share in and to the Business.

In Baron v. Baron, decided in 2010, the Second Department affirmed so much of supreme court's order awarding the wife therein twenty (20%) percent of the husband's company. Baron v. Baron, 71 AD3d 807 (2d Dept. 2010). The Court found that the twenty (20%) percent share ". . . takes into account the plaintiff's minimal direct and indirect involvement in the defendant's company, while not ignoring her contributions as the primary caretaker for the parties' children, which allowed the defendant to focus on his business . . ." Baron, 71 AD3d at 809. In Silvers v. Silvers, decided in 2021, the Second Department affirmed so much of the supreme court's order that an equal distribution of the defendant's interest in a long time insurance business and a real estate holding company was appropriate. Silvers v. Silvers, 197 AD3d 1195 (2d Dept. 2021). In affirming the award of fifty (50%) percent of the defendant's interest in the long time insurance business and real estate holding company, the Second Department considered, among other things, the length of the marriage of thirty-two (32) years, the advanced ages of the parties of sixty-seven (67) and seventy (70), and the plaintiff's "longtime indirect contributions to the businesses" by supporting the defendant and affording him the time and energy to manage the family enterprises. Silvers, 197 AD3d at 1198. The Court also considered that the defendant's testimony concerning both the long time insurance business and real estate holding company was found to lack credibility. Id.

In Sutaria v. Sutaria, the Second Department found that an award of twenty-five (25%) percent of the value of the business therein properly accounted for the plaintiff's direct and indirect contributions to the business. Sutaria v. Sutaria, 123 AD3d 909 (2d Dept. 2014). In Katz v. Katz, the Second Department affirmed a finding of a thirty (30%) percent share of the net asset value of the plaintiff's interest in a business, which share took into account the defendant's direct and indirect involvement in the business and included her contributions as the primary caretaker for the parties' children. Katz v. Katz, 153 AD3d 912 (2d Dept. 2017). In Culen v. Culen, the Second Department affirmed a finding of a twenty-five (25%) percent share in the subject business to the plaintiff therein, which appeared to take into account that the plaintiff therein was a full-time mother and homemaker. Culen v. Culen, 157 AD3d 926 (2d Dept. 2018). In Ripeti v. Ripeti, the Second Department affirmed a finding that a thirty (30%) percent share to the plaintiff of the defendant's interest in his businesses was proper, which considered the plaintiff's minimal direct and indirect contributions to the businesses, while not ignoring her contributions as the primary caretaker of the parties' children. Ripeti v. Ripeti, 147 AD3d 1094 (2d Dept. 2017).

The operation of the Business, more specifically, the method of cash payments, is seriously called into question by this Court. There is no dispute to the Court based on the limited credible testimony at the trial that the Husband collected significant sums of cash as a result of work performed by the Business. While the Husband sought to deflect all responsibility of the management of the Business to the Wife, the Court finds that the reality was that while the Husband was the primary person "out in the field", he was also the primary person responsible for collecting money from his customers. The Court, while largely finding the Wife incredible, found that portion of her testimony where she described the Husband having two sets of records for the Business to be credible, as well as what information was — and was not — reported to the accountant.^[122] Indeed, while the Business may have given the appearance that the Wife was the "owner" of the Business "on papers", the fact remains that, in reality, the Husband ran the Business and was the true owner of it. Notably, the Biennial Statement filed with the NYS Department of State for the Business for the filing period of September 2018^[123] reflects that the Husband if the Chief Executive Officer of the Business., which document also reflects that it was "filed with the NYS Department of State on: 01/22/2020".^[124] While the Husband transmuted the character of the Business from separate to marital property (see supra), that transmutation does not change the fact that the Husband was ostensibly the owner of the Business. Assets found to be marital property may be subject to equitable distribution irrespective of title. See generally Reiner v. Reiner, 100 AD2d 872 (2d Dept. 1984). The fact also that the Husband may have delegated secretarial or clerical responsibilities of the Business to others does not make him less of an owner of the Business.

However, not all marital property must be distributed in the same manner or in the same percentage, as different equities or different credits may pertain to different assets. Midy v. Midy, 45 AD3d 543 (2d Dept. 2007). Here, the Court finds that the Wife is entitled to thirty-five (35%) percent of the appraised value of the Business. As the Husband testified on his direct examination:

Q: Now, up until 2010 when she became the owner, who was managing the business?

A: She did.

Q: What was her role in the business up until 2010?

A: She was a secretary.

Q: What did the duties entail?

A: The duty was in the night she would go in the office, get all the message of the customer, and she will tell me who called and what do I have to do, go see a job, or a client complained.

Q: Who did the bookkeeping?

A: She did.

Q: Who maintained the records?

A: She did.

Q: Who did the bank accounting?

A: She did.

Q: Who made deposits?

A: She did.

Q: Who gave proposals?

A: She made the proposal.

Q: Who paid the bills?

A: She did.

Q: Who worked with the accountant?

A: She did.

Q: Who did the payroll?

A: She did.

* * *

Q: After 2010 you said she became the owner. Did he functions change or stay the same?

A: Stay the same.

* * *

Q: You never signed them?

A: I never signed. I never did anything. The only thing I did, this is what I did: Used to get up in the morning, go to work. She used to handle all the bank. She used to handle all the checks. She used to handle all the payroll. She used to handle everything. The only thing I did, just went to work and nothing else.

See August 18, 2022 Transcript.

When determining the equitable distribution of a business, the Court is mandated to consider both the direct and indirect contributions of the non-titled spouse. S.M. v. M.R., 2017 NYLJ LEXIS 2705 (Supreme Court Richmond County 2017). In arriving at the conclusion that the Wife should be entitled to a thirty-five (35%) percent share of the Business, the Court has initially considered the Wife's indirect contributions as a homemaker and primary caretaker to the parties two children during this long term marriage. See generally Nadasi v. Nadel-Nadasi, 153 AD3d 1346 (2d Dept. 2017) (award to wife of 25% of value of husband's interest in business is appropriate). Here, the undisputed testimony at the trial reveals that the Wife was the parent who raised the parties two children to the virtual exclusion of the Husband, who had very limited involvement with the children. The testimony revealed that the Wife cared for the children's emotional, educational and medical needs without help from the Husband. With respect to direct contributions, the Husband admitted at trial that the Wife performed banking, bookkeeping, secretarial and effectively clerical services for the Business. See generally Scher v. Scher, 91 AD3d 842 (2d Dept. 2012) (evidence established that the plaintiff made direct contributions to the business by serving as the company bookkeeper). The Court has also considered, in arriving at a percentage for the Wife's interest in the Business, her active efforts to sabotage the Business, for which she really provided no reasonable or logical explanation therefor. The Wife failed to justify her actions in signing a cancellation request for insurance on the Business. The Wife also failed to justify to the Court her social media postings regarding the Business being unlicensed in Nassau County. Why the Wife undertook this conduct was a question that was unanswered at the trial. But the Court finds, based upon its broad discretion in distributing assets, that the Wife's share of the Business should be negatively impacted by her negative unexplained and unjustified postings relating tot he Business. Accordingly, it is hereby:

ORDERED, that the Husband shall retain ownership of the Business and its assets, including but not limited to, any vehicles, equipment and/or customer lists; and it is further

ORDERED, that the Wife be and is hereby awarded a distributive award in the sum of $159,600.00, which sum represents a thirty-five (35%) percent of the appraised value of the Business; and it is further

ORDERED, that the Wife's thirty-five (35%) percent share of the appraised value of the Business of $159,600.00 shall be paid from the Husband's share of the net proceeds which are derived from the sale of the Wantagh Property; and it is further

ORDERED, that in the event that the Husband's share of the net proceeds of sale of the Wantagh Property are insufficient to cover the Wife's thirty-five (35%) percent share of the appraised value of the Business of $159,600.00, then, in that event, any remaining arrears due and owing shall be paid by the Husband to the Wife within sixty (60) days of the closing of title of the Watnagh Property.

Interest. Inasmuch as the Court has valued the Business as of the date of commencement, to wit: February 4, 2020, the Court finds that the Wife is entitled to interest on the distributive award of $136,800.00 from that date. See generally Baron v. Baron, 71 AD3d 807 (2d Dept. 2010) (marital assets valued therein as of June 30, 2002 and interest should have been awarded as of that date). This is not a penalty; rather, it is intended to indemnify the Wife for nonpayment of what is due to her. Selinger v. Selinger, 232 AD2d 471 (2d Dept. 1996) (also holding that since marital assets in this case were valued as of the date of commencement of the action, the plaintiff is entitled to interest from that date).While the rate of interest is nine (9%) per centum per annum (see CPLR § 5004, the Court notes that the Wife has requested four-and-a-half (4.5%) percent interest.^[125] In the exercise of the Court's broad discretion, the Court elects to utilzie the Wife's proposed rate of interest. Accordingly, it is hereby:

ORDERED, that the Wife is hereby awarded interest on the aforesaid $159,600.00 at the rate of four-and-a-half (4.5%) percent per annum, which interest shall be computed from February 4, 2020, the date of valuation of the Business.

D. The Life Estate(s)

The Parties' Positions. The Husband contends that in the event that the Court is considering his equitable share in and to the Bellmore Residence based upon the value of his life state, he is entitled to $147,285 as valued by Brisbane.^[126] The Wife contends that the Husband failed to meet his burden to establish the existence of a life estate.^[127]

Classification. A life estate and a right to occupancy are not the same. Matter of Strohe, 5 Misc 3d 1028(A) (Surrogate's Court Nassau County 2004). A right of occupancy is a personal privilege only. Matter of Morreale v. Morreale, 40 Misc 3d 1240(a) (Surrogate's Court Nassau County 2013). Contrarily, a life tenant is tantamount to the owner of the property and is entitled to all of the benefits and burden of such ownership although not a fee ownership, so long as the remainder interest is not affected. In re Estate of Fisher, 169 Misc 2d 412 (Surrogate's Court Rockland County 1996). A life tenant has the right to exclude all others from the possession of the subject property for the duration of his or her own life. In re Estate of Carey, 249 AD2d 542 (2d Dept. 1998). A life estate conveys exclusive ownership of the land during the lifetime of the life tenant, subject only to certain well defined limitations or duties. Estate of Santina M. Gullo, 2009 NY Misc. LEXIS 6343 (Surrogate's County Suffolk County 2009).

An estate for life, or, as it is usually called, a "life estate," is an estate in possession because the life tenant is entitled to full possession and enjoyment of the property. 56 NY Jur Estates, Powers, and Restraints on Alienation § 34. A life tenant is entitled to possession, control, and enjoyment of the property for the duration of his or her life. 56 NY Jur Estates, Powers, and Restraints on Alienation § 35; see also Kurek v. Luszcyk, 51 Misc 3d 19 (App. Term, 2d Dept. 2015). It is also worth noting:

For the most part, there are two types of life estates, one being an outright life estate or a "legal life estate" and the other being a life tenancy created by a trust. A trust which does not contain language entitling the grantee unconditionally to "use and occupy" the property does not convey a life estate. Where the property is not placed in trust, the estate created is a legal life estate, and the life tenant is a legal life tenant; where it is placed in trust, the estate is an equitable life estate, and the life tenant is an equitable life tenant.

56 NY Jur Estates, Powers, and Restraints on Alienation § 36.

See also Rosenblum v. Treitler, 2024 NY Misc. LEXIS 1581 (Civil Court New York County 2024) (where a life estate is placed in a trust, the estate is an equitable life estate, and the life tenant is an equitable life tenant). The subject Trust expressly provides that ". . . [i]n the event that our trust holds residential real property . . . used by either of us, then we have the exclusive right to possess, occupy, and use the real property . . . for residential purposes . . ." See Trust, Article Three, Section 3.01(a). There is no dispute here that the Trust holds the Bellmore Residence. Therefore, the Court disagrees with the Wife that the Husband failed to meet his burden to establish the existence of a life estate, and the Court finds that the Trust created an equitable life estate with the Husband and Wife being equitable life tenants.

However, and what appears to be a matter of limited impression, the operative question for the Court becomes whether or not the equitable life estate created by the subject Trust is a marital asset subject to equitable distribution, or whether or not the equitable life estate is the property of the Trust and thereby not subject to equitable distribution. In a legal life estate, legal title vests in one person for life and, at that person's death, devolves upon another person. Matter of Luscomb v. New York State Dept. of Health, 27 AD3d 1038 (3d Dept. 2006). Here, however, the Court finds only the existence of an equitable life estate, not a legal life estate. This is so inasmuch as the right(s) of the Husband and Wife to live in and occupy the Bellmore Residence are only set forth in the subject Trust. Meaning, of course, that upon the death of the Husband and/or Wife, legal title does not devolve to the remaining spouse; rather, legal title to the Bellmore Residence is owned by the Trust.

Article Three of the Trust only provides that the Husband and Wife can possess, occupy and use the Bellmore Residence. It does not grant the Husband and/or Wife the right or authority to exclude others during their lifetime. See generally In re Estate of Carey, 249 AD2d 542 (2d Dept. 1998) (substance of life estate consists of life tenant's right to exclude others from possession). Article Three, Section 3.01 provides that the Trustee shall administer the Trust; not the parties. Article Three of the Trust does not grant the Husband and/or Wife the right to lease the property to a tenant, nor does it give the Husband and/or Wife the right to collect rents. See generally Boyar v. Goodman, 202 AD2d 541 (2d Dept. 1994) (life tenant can lease property to tenant and collect rents). Article Three, Section 3.01(b) of the Trust provides that the Trustee, in the Trustee's sole discretion, may distribute some or all of the net income from the Trust property; not the Husband and/or Wife. Finally, it does not appear from the text of the Trust that the Husband and/or Wife can force the sale of the Bellmore Residence. See generally In re Estate of Sauer, 194 Misc 2d 634 (Surrogate's Court Nassau County 2002) (holder of a life estate may, under certain circumstances, be able to force the sale of real property and collect the value of his life estate). Here, Article Three, Section 3.01(a)(2) of the Trust provides only that the Trustee ". . . may purchase or acquire substitute property or properties to be used by either of us for residential purposes . . ." (emphasis added).

Since the Bellmore Residence is the property of the subject Trust, and not the property of the parties, and since the parties only have a right to possess, occupy, and use the Bellmore Residence, this Court comes to the conclusion that the equitable life estate(s) held by the parties are not subject to equitable distribution. Stated differently, since the equitable interest(s) of the Husband and Wife in the Bellmore Residence is not the result of ownership of the subject residence and only the result of the Trust, which is not subject to equitable distribution, it is a naturally flowing consequence that the equitable life estate(s) for the Husband and Wife, created by that very Trust, are likewise not subject to equitable distribution. It would be a legal impossibility for this Court to conclude that the life estate(s) in the Bellmore Residence are subject to equitable distribution, but that the Bellmore Residence itself is not subject to equitable distribution. Accordingly, the Court declines to classify the life estate(s) as marital property subject to equitable distribution, so it is hereby:

ORDERED, that the Husband's equitable life estate in the Bellmore Residence is not subject to equitable distribution; and it is further

ORDERED, that the Wife's equitable life estate in the Bellmore Residence is not subject to equitable distribution.

E. The 2020 Lamborghini Aventador SVJ

The Parties' Positions. The Husband contends that the 2020 Lamborghini Aventador is a leased vehicle titled to the leasing company, and, therefore, in effect, has no value for purposes of equitable distribution.^[128] The Wife effectively claims that the 2020 Lamborghini automobile was owned, that she is entitled to her equitable share of the "seed" money that the Husband used towards his acquisition of successive exotic Lamborghini automobiles, and she seeks exclusive use and possession of the 2020 Lamborghini automobile.^[129]

Classification. The lease agreement for the 2020 Lamborghini Aventador SVJ^[130] is between Putnam Leasing Company I, LLC, as Lessor, and M.I. (the Husband), as Lessee. It provides, in part:

18. OWNERSHIP: You understand and agree that this Agreement is a Lease only. We own the Vehicle, and it will be titled in our name or in the name of our assignee. You have no ownership interest in the Vehicle except for any future options to purchase (if any) provided in this Lease. This Lease will be treated as a true lease, and we will receive all tax and other benefits of ownership.

See Paragraph "18" of the lease.

While Paragraph "47" of the lease agreement provides the Husband with an option to purchase the subject Lamborghini at any time after twenty-four (24) months of the lease, and while Paragraph "13" of the lease agreement provides the Husband with the option to purchase the vehicle at the end of the lease term, all subject to the terms thereof, the Court does not find that the future option to purchase the Lamborghini converts the lease into an ostensible ownership interest at present. An option contract is an agreement to hold an offer open; it confers upon the optionee, for consideration paid, the right to purchase at a later date. Kaplan v. Lippman, 75 NY3d 320 (1990). Inasmuch as the right to purchase the Lamborghini is only at a later date, and there was no evidence presented at the trial that the Husband actually exercised the right to purchase, which, at that point, would have generated an ownership interest, the Court does not find that either party has an ownership interest in and to the 2020 Lamborghini Aventador. A future option to purchase something, which no actual obligation to purchase it, does not convey or translate to a current ownership interest.

The Wife argues in her Post-Trial Memorandum:

"The Wife herein is entitled to her share of this marital asset that the Husband has utilized towards his acquisition of multiple, successive automobiles. The "seed" money he used hor his current 2020 Aventador SVJ can be directly traced through his trade in of multiple vehicles, starting with the two Lamborghini vehicles that he removed from the parties' garage in early 2019 and received $390,000 for as a trade-in towards the 2020 Huracan".

See Wife's Post-Trial Memorandum, page "22".

The Court is unpersuaded. As the Wife's own private investigator testified to:

Q: So what was the date of your surveillance that you personally engaged in?

A: December 5, 2020.

Q: Tell me how that day started.

A: We were simply assigned to surveil the oys-for-Tots Marine Corp Toy Drive in the Nassau Coliseum and to await the arrival of Mr. I. should he arrive at that event, which he did.

Q: And do you recall, approximately, what time you arrived at the Nassau Coliseum for the Toys-for-Tots event?

A: We started early, around 8 a.m.

* * *

Q: At what point in time, if you recall, did you observe Mr. I. arrive?

A: I'd have to look at my notes.

Q: If you need to refresh your recollection, go right ahead.

A: He arrived around 9:12 a.m. in a yellow Lamborghini registered with a vanity plate, which I would actually have to spell out for the Court. I can't even pronounce it.

Q: Could you?

A: Vanity plate was a New York registration plate, E-U-N-S-O-G-N-O.

Q: Did you do any kind of DMV search of that particular plate?

A: We did.

Q: What, if anything, did you learn from that search?

A: The vehicle was registered to Mr. I., and it was titled to a lease company, I believe.

Q: When Mr. I. arrived in the yellow Lamborghini, did you note if he was alone or if he was with anyone?

A: He was not alone.

* * *

Q: Was there another surveillance done after December 6th?

A Yes.

Q: When was that?

A: Sunday, December 5, 2021.

* * *

Q: Tell me about that particular date.

A: On that date, once again, we arrived early for the event. Refresh my recollection on times?

Q: Was that a Toys-for-Tots event?

A: Toys-for-Tots event, again, run by the Marine Corp as a toy drive.

* * *

Q: And did Mr. I. arrive at any particular time?

A: He did, quite later into the event. I would have to check my notes.

Q: Please.

A: He arrived at, I believe — I don't have the exact time, but it was around 10:12. He was only there a short time.

* * *

Q: What was he driving?

A: A blue Lamborghini with, I don't know, a race car design on it.

* * *

Q: And did you notice whose name was on the registration?

A: Yes. It's registered to Mr. I.

Q: And the title?

A: It's titled to a lease company.

See May 15, 2023 Transcript.

The Wife's own private investigator confirmed that the prior two Lamborghini automobiles were titled in the name of the leasing company; not the Husband. The Record is barren of any proof that the Husband had an ownership interest in his prior automobiles before his acquisition of the 2020 Lamborghini Aventador. The mere fact that a prior leased vehicle may have increased in value, and that the value of a leased vehicle — not owned by any party — was acquired towards the acquisition of another leased vehicle is not dispositive, nor reflective, of ownership. In fact, no evidence or testimony was proffered at trial for this Court to conclude that the increase in value of a lease is the property of the lessee. A "Lease" is defined as "[t]o grant the possession and use of (land, buildings, rooms, moveable property, etc.) to another in return for rent or other consideration". See "Lease", Black's Law Dictionary (11th ed. 2019). The grant of possession and use of something is not equivalent to ownership. The 2020 Lamborghini SVJ is an asset of Putnam Leasing Company I, LLC; it not an asset of this marriage, and the Husband was only granted the right to use it.

Therefore, the Court does not classify the 2020 Lamborghini Aventador as a marital asset subject to equitable distribution. The Wife has not set forth a cognizable basis for this Court to award her exclusive use and possession of a leased vehicle in the Husband's name. Accordingly, it is hereby:

ORDERED, that the Husband shall retain possession of the 2020 Lamborghini Aventador SVJ automobile and he shall be solely and individually responsible for said vehicle, including, but not limited to, the monthly lease payments, automobile insurance, maintenance, and all other costs and expenses associated with said vehicle.

F. 2020 Ford F-150

The Parties' Positions. The Husband argues that the 2020 Ford F-150 is a leased vehicle and, therefore, not subject to equitable distribution.^[131] The Wife does not address this vehicle in her Post-Trial Memorandum.

Classification. The lease agreement for the 2020 Ford F-150^[132] is between Levittown Ford, LLC, as Lessor, and M.I. (the Husband), as Lessee. As with the lease on the 2020 Lamborghini Aventador, same does not convey an ownership interest in and to the 2020 Ford F-150. Levittown Ford did not convey ownership of the vehicle to the Husband. Therefore, the court cannot classify it as an asset of the marriage subject to equitable distribution; rather, it is an asset of Levittown Ford, with the Husband only having the right to use it. Accordingly, it is hereby:

ORDERED, that the Husband shall retain possession of the 2020 Ford F-150 automobile and he shall be solely and individually responsible for said vehicle, including, but not limited to, the monthly lease payments, automobile insurance, maintenance, and all other costs and expenses associated with said vehicle.

G. The 2015 Bentley Continental GTCV8S

The Parties' Contentions. The Husband contends that the 2015 Bentley automobile was titled in the name of the Wife, was owned, had an appraised value of $132,000.00, was sold, and, therefore, the appraised value should be calculated as part of the Wife's share of equitable distribution.^[133] The Wife does not address the 2015 Bentley automobile in her Post-Trial Memorandum.

Classification. The documentation for the 2015 Bentley automobile^[134] reflects that it was acquired as a used vehicle and sold on July 12, 2018, with a delivery date of July 12, 2018. The documentation also reflects that the 2015 Bentley automobile was sold to the Wife on July 12, 2018, which was during the parties' marriage. To this end, inasmuch as the 2015 Bentley automobile was acquired during the parties' marriage, the Court classifies same as a marital asset subject to equitable distribution.

Valuation. While the Husband posits that the 2015 Bentley automobile had an appraised value of $132,000,^[135] on April 5, 2021, the Wife sold the Bentley automobile to "On the Road Automotive Group, Inc." for the sum of $92,447.37. There was no proof adduced at trial that the Wife sold the 2015 Bentley automobile for less than fair market value or to attempt to deprive the Husband and equitable share of same.^[136] The Court therefore sets a valuation date of April 5, 2021, and values the 2015 Bentley automobile at $92,447.37.

Distribution. There is no dispute that this asset was sold during the pendency of this action. However, the documentary evidence received in evidence at the trial reflects that On the Road Automotive Group, the purchaser of the 2015 Bentley automobile, paid the sum of $92,447.37 on April 5, 2021 to TD Auto Finance, LLC, the lien holder. On April 20, 2021, TD Auto Finance, LLC, issued a lien release and termination statement. Since the purchaser of the 2015 Bentley automobile paid-off the lien encumbering that automobile, which matched the purchase price, it does not appear that any net proceeds were derived from the sale. Therefore, the Court finds nothing to distribute relative to the 2015 Bentley automobile. Therefore, the Court finds no basis to award the Husband a credit for same. Accordingly, neither party is awarded any sums of money and/or credits relative to the sale of the 2015 Bentley Continental GTCV8S, so it is hereby:

ORDERED, that neither party is awarded equitable distribution of the proceeds of sale of the 2015 Bentley Continental GTCV8S.

H. Annuity

The Parties' Positions. The Wife seeks an amount equal to one-half of the cash value of the Husband's Annuity as of the date of the commencement of this action.^[137] The Husband did not address the distribution of this Annuity in his Post-Trial Memorandum.

Classification. There exists a Privileged Assets Annuity held with RiverSource Annuities in the name of the Husband.^[138] The Husband failed to disclose the existence of this Annuity on his Statement of Net Worth as of April 19, 2022.^[139] The Annuity statement reflects that it is for the statement ending December 31, 2019. Inasmuch as the Husband failed to disclose the existence of the Annuity (hereinafter referred to as the "RiverSoruce Annuity"), and inasmuch as the Husband failed to provide the Court with any evidence that his Annuity was acquired prior to the parties' marriage, the court classifies the RiverSource Annuity as marital property subject to equitable distribution.

Valuation. Neither party provided the Court with any evidence of value of the RiverSource Annuity other than the statement (see supra) which reflects a value of $13,836.07 as of December 31, 2019. Since the date of the commencement of this action is February 4, 2020, the Court elects to value the RiverSource Annuity as of the date of commencement of this action.

Distribution. While equitable distribution does not necessarily mean equal distribution (see Taylor v. Taylor, 140 AD3d 944 (2d Dept. 2016)), where both spouses equally contribute to a marriage that is of long duration, a division of marital assets should be made that is as equal as possible (see Miller v. Miller, 128 AD2d 844 (2d Dept. 1987)). Here, the Court notes the long duration of the parties' marriage, to wit: twenty-eight (28) years. The Court has considered the Wife's role as the primary caregiver to the parties two emancipated children as well as her role in the Business, which was the parties' principal source of income during their marriage. To this end, the Court finds that the Wife is entitled to fifty (50%) percent of the value of the RiverSource Annuity valued as of the date of commencement of this action, so it is hereby:

ORDERED, that the Husband shall pay to the Wife the sum of $6,918.03, which sum represents the Wife's fifty (50%) percent share in and to the RiverSource Annuity, within thirty (30) days of the date of the Judgment of Divorce.

I. Life Insurance Cash Value

The Parties' Contentions. The Wife seeks an amount equal to one-half of the cash value of the cash surrender value of the Husband's life insurance policy as of the date of commencement of this divorce action.^[140] The Husband did not address the distribution of the cash surrender value of his life insurance policy in his Post-Trial Memorandum.

Classification. The Husband has a life insurance policy with Allstate.^[141] It is a Universal Life insurance policy. It has a cash surrender value (hereinafter referred to as the "Allstate Life Insurance Policy"). The Husband failed to disclose the existence of the cash surrender value of his Allstate Life Insurance Policy on his Statement of Net Worth as of April 19, 2022.^[142] The statement reflects a coverage date of March 6, 1998, which is after the date of the parties' marriage in 1992. Inasmuch as the Husband acquired the Allstate Life Insurance Policy, and its associated cash surrender value, the court classifies the cash surrender value of the Allstate Life Insurance Policy as marital property subject to equitable distribution.

Valuation. The only evidence provided by the parties evidencing a value of the cash surrender value is one as of March 6, 2018, which reflects a value of $54,182.00. Since the date of the commencement of this action is February 4, 2020, the Court elects to value the cash surrender value of the Allstate Life Insurance Policy as of the date of commencement of this action. Crucially, neither party presented any evidence of value as of a date closest in time to trial, or any other date.

Distribution. While equitable distribution does not necessarily mean equal distribution (see Taylor v. Taylor, supra), where both spouses equally contribute to a marriage that is of long duration, a division of marital assets should be made that is as equal as possible (see Miller v. Miller, supra). Here, the Court has considered the long duration of this marriage of twenty-eight (28) years, and the Court has considered the Wife's role in the Business, which was the parties' principal source of income during their marriage. To this end, the Court finds that the Wife is entitled to fifty (50%) percent of the value of the cash surrender value of the Allstate Life Insurance Policy valued as of the date of commencement of this action, so it is hereby:

ORDERED, that the Husband shall pay to the Wife the sum of $27,090.00, which sum represents the Wife's fifty (50%) percent share in and to the cash surrender value of the Allstate Life Insurance Policy, within thirty (30) days of the date of the Judgment of Divorce.

J. Bank Accounts^[143]

The Parties' Positions. The Husband argues that the Wife "drained" ten (10) separate bank accounts from the time that the Husband left the Bellmore Residence through the date of the commencement of this action, and that the total aggregate amount "drained" was $339,471.54.^[144] The Wife does not address these bank accounts in her Post-Trial Memorandum.

Given that both the Husband and Wife lacked total credibility during this trial, the Court simply could not accept the Husband's representations on the amounts allegedly pilfered out of these accounts by the Wife, nor could the Court rely on the Husband's "charts"^[145] that he made for the Court. Rather, the Court undertook the task of ferreting through thousands upon thousands of pages of documents reviewing hundreds and hundreds of pages reflecting checks and withdrawals from the various accounts. The Court declines to give the Husband "credit(s)" for expenses paid from these accounts, for instance, for food, gasoline, shopping and/or transportation. To go back years and "cherry pick" which expenses are legitimate or illegitimate is not an exercise that the Court is willing to undertake, and is contrary to the precedent in this State. The Court declines to review each and every debit made from these accounts inasmuch as a general rule, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets. Mahoney-Buntzman v. Buntzmna, 12 NY3d 415 (2009). However, after a careful review of the thousands upon thousands of pages of exhibits of bank account statements, this Court notes that there were many debits which reflect either "cash" withdrawals or substantial withdrawals without a sufficient explanation. The Court finds that the Husband should be entitled to a credit for the withdrawals and/or checks written by the Wife in the amounts set forth herein.

*

i. TD Bank Checking Account (xxx2787)^[146]

Classification. The account application for this account reflects that it was opened in the joint names of the parties on February 10, 2016, which was during the marriage. The Court therefore classifies this account as marital property subject to equitable distribution. Valuation. The valuation date of a marital asset should be appropriate and fair under the circumstances. See E.G. v. D.G., 53 Misc 3d 1201(A) (Supreme Court Westchester County 2014). The last statement received in evidence for this account is for the period from January 1, 2020 through March 31, 2020.^[147] With no other alternative statement provided to the Court, this Court elects to value this account as of March 31, 2020, which account had a de minimis value of $.24 as of that date. Distribution. The Court finds that each party should receive fifty (50%) percent of the balance of the account as of March 31, 2020. Accordingly, it is hereby:

ORDERED, each party shall be entitled to fifty (50%) percent of the account balance as of March 31, 2024, or the sum of $.12; and it is further

ORDERED, as expeditiously as possible after the date of this Decision and Order, the parties shall take all steps necessary to close said account.

Waste. The Court has carefully reviewed the account statements for this account and notes that the Wife, less than two weeks prior to the commencement of this action, withdrew the sum of $5,000.00 from this account on January 23, 2020. The Wife failed to explain at trial her withdrawal of this money, and finds that she wastefully dissipated this asset. The Court therefore elects to give the Husband a credit of fifty (50%) percent of the $5,000.00 withdrawal, or the sum of $2,500.00. Accordingly, it is hereby:

ORDERED, that the Husband shall be entitled to a credit in the sum of $2,500.00, which sum shall be offset and paid from the Wife's share of the net proceeds of sale that are derived from the sale of the Wantagh Property at the closing of title directly to the Husband.

ii. TD Bank Checking Account (xxx0026)

Classification. The account application for this account reflects that it was opened in the joint names of the parties on February 10, 2016, which was during the marriage.^[148] The Court therefore classifies this account as marital property subject to equitable distribution. Valuation. The last statement received in evidence for this account is for the period from February 14, 2020 through March 13, 2020. With no other alternative statement provided to the Court, this Court elects to value this account as of February 14, 2020, which account had a negative value of ($129.99) as of that date. Distribution. The Court cannot distribute an asset which has a negative value; rather, it can only allocate the negative balance. The Court finds that each party should be responsible for fifty (50%) percent of any penalties, fees and/or monies owed to the bank, so it is hereby:

ORDERED, each party shall be responsible for fifty (50%) percent of any penalties, fees and/or deficiency due and owing to TD Bank for this account; and it is further

ORDERED, as expeditiously as possible after the date of this Decision and Order, the parties shall take all steps necessary to close said account.

Waste. The Court has carefully reviewed the account statements for this account and notes that the Wife, approximately two weeks prior to the commencement of this action, withdrew, on January 23, 2020, the aggregate sum of $3,168 from this account. The Wife failed to explain at trial her withdrawal of this money, and finds that she wastefully dissipated this asset. The Court therefore elects to give the Husband a credit of fifty (50%) percent of the $3,168.00 withdrawn, or the sum of $1,584.00. Accordingly, it is hereby:

ORDERED, that the Husband shall be entitled to a credit in the sum of $1,584.00, which sum shall be paid from the Wife's share of the net proceeds of sale that are derived from the sale of the Wantagh Property at the closing of title.

iii. Chase Bank Checking Account (xxx7686)

The Court carefully, and with a fine-tooth comb, analyzed the over 12,000 pages of Chase Bank statements received in evidence.^[149] The Court could not find any account statements bearing this account number. Therefore, the Court is unable to equitably distribute this account, so it is hereby:

ORDERED, that neither party is awarded equitable distribution of the Chase Bank Checking Account (xxx7686).

iv. Chase Bank Business Account (xxx8161)

Classification. This account is a checking account of the Business. There was no evidence introduced at trial that this account was established prior to the parties' marriage. In any event, as the Court as found that the Husband transmuted the character of the Business (see supra), it naturally follows that any asset of the Business would be transmuted to marital property. The Court therefore classifies this account as marital property subject to equitable distribution. Valuation. The statement for this account from February 1, 2020 through February 28, 2020, reflects an account ending balance as of February 28, 2020 of $0.00.^[150] This Court elects to value this account as of February 28, 2020, which is a date after the commencement of this action and closest in time to the date of commencement. As of that date, this account had a value of $0.00. Distribution. Since this account had a balance of $0.00 as of the valuation date of February 28, 2020, this Court finds that there is nothing to distribute as of that date. Accordingly, it is hereby:

ORDERED, that neither party is awarded equitable distribution of the Chase Business Checking Account (xxx8181), except as otherwise set forth herein.

Waste. The Court has carefully reviewed the account statements for this account and notes that the Wife, dating back to July, 2018, withdrew the aggregate sum of $25,000.00 from this account from July 28, 2018 through September 21, 2019. The various withdrawals range from as low as $200.00 to as high as $5,000.00. The withdrawals were made either by a straight withdrawal or various checks written to "petty cash", made out to "cash", with no other explanation. All checks and/or withdrawal slips were signed by the Wife. The Wife failed to explain at trial her withdrawal(s) of this money, and the Court finds that she wastefully dissipated this asset. Since this account is an account of the Business, and since the Court found that the Wife was entitled to thirty-five (35%) percent of the Business, the Court finds it equitable that the Husband be entitled to a credit for sixty-five (65%) percent of the amounts withdrawn by the Wife for this period, said credit being the in sum of $16,250.00. Accordingly, it is hereby:

ORDERED, that the Husband shall be entitled to a credit in the sum of $16,250.00, which sum shall be offset and paid from the Wife's share of the net proceeds of sale that are derived from the sale of the Wantagh Property at the closing of title with respect to same.

v. Chase Bank Business Account (xxx8628)

Classification. This account is a checking account of the Business. There was no evidence introduced at trial that this account was established prior to the parties' marriage. In any event, as the Court as found that the Husband transmuted the character of the Business (see supra), it naturally follows that any asset of the Business would be transmuted to marital property. The Court therefore classifies this account as marital property subject to equitable distribution. Valuation. The statement for this account from February 1, 2020 through February 28, 2020, reflects an account ending balance as of February 28, 2020 of $4,900.00.^[151] This Court elects to value this account as of February 28, 2020, which is a date after the commencement of this action and closest in time to the date of commencement. As of that date, this account had a value of $4,900.00. Distribution. Inasmuch as this is an account of the Business, the Court does not find it appropriate to distribute the account on a "50/50" basis; rather, since equitable distribution does not necessarily mean equal distribution (see Spencer-Forrest v. Forrest, 159 AD3d 762 (2d Dept. 2018)), and since the Court awarded the Wife thirty-five (35%) percent of the Business, the Count finds that the value of this account should be distributed as of February 28, 2020, such that the Husband should receive sixty-five (65%) percent of the account value as of that date and the Wife shall receive thirty-five (35%) percent of the account value as of that date. Accordingly, it is hereby:

ORDERED, that the Husband shall be entitled to sixty-five (65%) percent of the account balance of this account as of February 28, 2020, or the sum of $3,185.00; and it is further

ORDERED, that the Wife shall be entitled to thirty-five (35%) percent of the account balance of this account as of February 28, 2020, or the sum of $1,715.00; and it is further

ORDERED, that the sums set forth herein shall be paid to each party from the other party's share of the net proceeds which are derived from the sale of the Wantagh Property at the closing of title with respect to same.

Waste. The Court has carefully reviewed the account statements for this account and notes that the Wife, dating back to July, 2018, withdrew the aggregate sum of $168,900.00 from this account from July 6, 2018 through November 30, 2019. The various withdrawals range from as low as $400.00 to as high as $9,500.00. All of these withdrawals were made by a straight withdrawal, other than one check in the sum of $1,000, which failed to indicate in the "memo" section what it was for. All checks and/or withdrawal slips were signed by the Wife. The Wife failed to explain at trial her withdrawal(s) of this money, and the Court finds that she wastefully dissipated this asset. The Court therefore elects to give the Husband a credit of sixty-five (65%) percent of the $168,900 aggregate withdrawal(s) or the sum of $109,785.00. Accordingly, it is hereby:

ORDERED, that the Husband shall be entitled to a credit in the sum of $109,785.00, which sum shall be offset and paid from the Wife's share of the net proceeds of sale that are derived from the sale of the Wantagh Property at the closing of title with respect to same.

vi. Chase Bank Business Account (xxx0303)

Classification. This account is a savings account of the Business. There was no evidence introduced at trial that this account was established prior to the parties' marriage. In any event, as the Court as found that the Husband transmuted the character of the Business (see supra), it naturally follows that any asset of the Business would be transmuted to marital property. The Court therefore classifies this account as marital property subject to equitable distribution. Valuation. The statement for this account from February 1, 2020 through February 28, 2020, reflects an account ending balance as of February 28, 2020 of $.01. This Court elects to value this account as of February 28, 2020, which is a date after the commencement of this action and closest in time to the date of commencement. As of that date, this account had a value of $.01. Distribution. The de minimis account balance of one cent is impractical to distribute. Accordingly, it is hereby:

ORDERED, that neither party shall be entitled to equitable distribution of the Chase Bank Business Account (xxx0303), except as otherwise set forth herein.

Waste. The Court has carefully reviewed the account statements for this account and notes that the Wife, dating back to July, 2018, withdrew the aggregate sum of $64,800.00 from this account from July 3, 2018 through January 1, 2020. The various withdrawals range from $200.00 to $8,000.00. The withdrawals were made by a straight withdrawal, with all withdrawal slips being signed by the Wife. The Wife failed to explain at trial her withdrawal(s) of this money, and the Court finds that she wastefully dissipated this asset. The Court therefore elects to give the Husband a credit of sixty-five (65%) percent of the $64,800.00 withdrawal(s) or the sum of $42,120.00. This Court arrives at this percentage inasmuch as this account was an account of the Business and the Court only awarded the Wife thirty-five (35%) percent of the value of the Business. Accordingly, it is hereby:

ORDERED, that the Husband shall be entitled to a credit in the sum of $42,120.00, which sum shall be offset and paid from the Wife's share of the net proceeds of sale that are derived from the sale of the Wantagh Property at the closing of title with respect to same.

vii. Chase Bank Checking Account(s) (xxx2228) & (xxx1918) and Chase Bank Savings Account (xxx5844)

Classification. The Court addresses these accounts together inasmuch as: (1) they appear on a consolidated statement together, and (2) the last consolidated statement for these three (3) accounts^[152] is for the period from May 15, 2019 through June 14, 2019.^[153] There is a premier checking account (xxx2228), a total checking account (xxx1918) and a plus savings account (xxx5844). These three (3) accounts are solely in the name of the Wife. There was no evidence introduced at trial that these three (3) accounts were established prior to the parties' marriage. The Court therefore classifies these three (3) accounts as marital property subject to equitable distribution. Valuation. The consolidated account statement for these three (3) accounts reflect balances as of June 14, 2019 of $321,32 for the premier checking account (xxx2228), $41,447.53 for the total checking account (xxx1918) and $31,395.79 for the plus savings account (xxx5844). The Court cannot, however, value these three (3) accounts as of June 14, 2019, as the valuation date of a marital asset may be set anytime from the date of commencement of the action to the date of trial. Sinnott v. Sinnott, 194 AD3d 868 (2d Dept. 2021). Thus, the earliest this Court could value these accounts were as of the date of trial. However, given the substantial sums of money in these accounts, the Court finds that it would be an abuse of discretion for the Court not to equitably distribute the accounts, so the Court will fashion an equitable remedy herein, as this Court stands as a court of equity. See L.F. v. M.F., 78 Misc 3d 810 (Supreme Court Nassau County 2023). Distribution. The Court finds that the Husband is entitled to fifty (50%) percent of the value of the three (3) accounts as of the date of commencement of this action. Accordingly, it is hereby:

ORDERED, that within sixty (60) days of the date of this Decision and Order, the Wife shall provide directly to the Husband a statement from Chase Bank reflecting the value of each of the aforesaid accounts, to wit: (xxx2228), (xxx1918) and (xxx5844), as of February 4, 2020; and it is further

ORDERED, that the Wife shall pay to the Husband a sum equal to fifty (50%) percent of the account value(s) of the aforesaid accounts, to wit: (xxx2228), (xxx1918) and (xxx5844), within thirty (30) days of the date of the Judgment of Divorce.

viii. Chase Bank Savings Account (xxx9727)

Classification. The last statement received in evidence at trial is for the period from June 15, 2019 through July 15, 2019.^[154] The account is titled in the name of P.I. by C.I. NYUTMA. This account is clearly a "Uniform Transfers to Minors Act" account. UTMA was enacted to provide custodians with greater flexibility in administering an infant's assets and to ensure uniformity with the 45 other States which have adopted the Uniform Transfers to Minors Act proposed in 1983 by the National Conference of Commissioners on Uniform State Laws. In re Nadler, 173 Misc 2d 1017 (Surrogate's Court New York County 1997). EPTL § 7-6.20 provides:

The custodian shall transfer in an appropriate manner the custodial property to the minor or to the minor's estate upon the earlier of:

(a) the minor's attainment of twenty-one years of age with respect to custodial property transferred under 7-6.4 or 7-6.5;

(b) the minor's attainment of age eighteen or other statutory age of majority of New York with respect to custodial property transferred under 7-6.6 or 7-6.7; or

(c) the minor's death.

(emphasis added).

Under UTMA (and its predecessor the Uniform Gifts to Minors Act (UGMA)), where a gift of money or property is made to a custodial account established for a minor, that gift is irrevocable, and the custodial property is indefeasibly vested in the minor. REP Props., Inc. v. TD Bank, N.A., 67 Misc 3d 1221(A) (Supreme Court New York County 2020). The money in this UTMA account was irrevocably gifted to P.I. P.I. was born xxxx xx, 1995, currently making him twenty-nine (29) years of age. P.I. is not deceased, but he is over the age of twenty-one (21) years. Therefore, the money in this account belong to "the minor", or, in this case, P.I. (see EPTL § 7-6.20). Accordingly, it is hereby:

ORDERED, that neither party is awarded equitable distribution of the Chase Bank Savings Account (xxx9727).

K. Wife's Debts

The Parties' Positions. The Wife submitted, at trial, documentation purporting to reflect $62,936.47 in credit car debt.^[155] The Wife argues that the credit card debts were accumulated prior to the commencement of the divorce action, the Husband failed to disprove the existence of such debts, and that the Husband should pay at least fifty (50%) percent, if not one hundred (100%) percent, of these debts.^[156] The Husband did not address the Wife's $62,936.47 in credit card debt in his Post-Trial Memorandum.

Classification. The Court has carefully examined the documents received in evidence relative to the Wife's claim of $62,936.47. The Court would be remiss if it did not initially state that the documents in evidence relative to this claim are disjointed and unorganized. With that said, the Court undertakes the task of analyzing same. The first page of the exhibit is from Alltran Financial, LP, for creditor JPMorgan Chase Bank, N.A., reflects an account balance of $52,113.91, but is dated October 6, 2021. Nothing in that document reflects when the $52,113.91 was incurred. The second page of that exhibit, also from Alltran Financial, LP, for creditor JPMorgan Chase Bank, N.A., reflects an account balance of $26,704.16, but is dated October 6, 2021. Nothing in that document reflects when the $26,704.16 was incurred. The third page of that exhibit is a statement from ARS National Services Inc. which reflects an account balance of $6,826.41, but is dated March 30, 2023. Nothing in that document reflects when the $6,826.41 was incurred. The fourth page of that exhibit is correspondence from Portnoy Schneck, LLC, reflecting that $2,417.24 was owed as of October 4, 2022, and that a judgment was entered against the Wife on September 13, 2022. Nothing in that document reflects when the $2,417.24 was incurred. The fifth and six page of the exhibit are, in effect, the Judgment that was entered on September 13, 2022 against the Wife (see supra).

The seventh page of the exhibit is dated October 12, 2022, and is relative to the $52,113.91 owed which is in the name of the Wife (see supra). The eighth page of the exhibit is a Judgment in the sum of $400.79 against the Wife dated March 4, 2022, but does not show when the $400.79 was incurred. The ninth, tenth and eleventh pages of the exhibit are documents dated August 30, 2022, September 9, 2022, and December 13, 2022, and are relative to the $6,826.41 owed by the Wife (see supra). The twelfth page of the exhibit is a document from Radius Global Solutions reflecting that as of September 24, 2021, the Wife owed $11,271.67. That document does not reflect when the $11,271.67 was incurred. The thirteenth and fourteenth pages of the exhibit is a letter from Rubin & Rothman, LLC dated February 27, 2023, reflecting a debt to Capital One Bank in the sum of $7,474.04. That document does not reflect when that debt was incurred.

The fifteenth through twenty-second pages of the exhibit are a summons and complaint dated April 4, 2022 which alleges that the Wife owes $1,905.05 to Cavalry SPV as assignee of Citibank, but does not reflect when that debt was incurred. The twenty-third page of the exhibit is correspondence from Taroff & Taitz, LLP reflecting that as of August 31, 2022, the Wife owes $5,855.00, but does not reflect when that debt was incurred. The twenty-fourth page of the exhibit is a document dated October 13, 2021 relative to the aforesaid $11,271.67 owed by the Wife (see supra). The twenty-fifth page of the exhibit is correspondence from the United Collection Bureau dated January 12, 2022 relative to the $6,826.41 owed by the Wife (see supra). The twenty-sixth page of the exhibit is correspondence dated July 13, 2021 from the United Collection Bureau relative to the $26,704.16 owed by the Wife (see supra). And the twenty-seventh page of the exhibit is correspondence dated July 13, 2021 from the United Collection Bureau relative to the $52,113.91 owed by the Wife (see supra).

The Wife's disjointed, unorganized and exhibits, coupled with their lack of detail as to when those debts were incurred makes it impossible for the Court to classify those debts as marital debts. What is more, all twenty-seven pages of the exhibit have a single thing in common: they are all dated after the commencement of this action. While the Wife argues that the Husband failed to disprove the existence of these debts or that the Husband failed to challenge the nature of the debts, the Court disagrees with her. If the Wife was seeking contribution towards marital debt, then it was initially incumbent upon her to prove that the debt(s) were incurred during the marriage; not simply to just prove the existence of debt(s). Since the Court likewise finds that the Wife generally lacked credibility at the trial, the Court is not simply going to "take her word" for it that the debts were incurred during the marriage. All of the twenty-seven pages of the Wife's exhibits purporting to evidence "marital debt" are all dated after the commencement of the action. Expenses incurred after the commencement of an action for divorce are generally the responsibility of the parties who incurred the debt. Bari v. Bari, 200 AD3d 835 (2d Dept. 2021); see also Epstein v. Messner, 73 AD3d 843 (2d Dept. 2010). The Wife's failure, at trial, to prove that these expenses were incurred during the marriage, coupled with her total lack of credibility and her lack of evidence reflecting that these debts were incurred during the marriage leads the Court to the only conclusion that it can reach, which is, that the alleged debts of $62,936.47 be and the same are hereby classified as the separate are responsibility of the Wife. Accordingly, it is hereby:

ORDERED, that the Wife's request that the Husband contribute to $62,936.47 of marital credit card debt be and the same is hereby DENIED.

L. Motorcycles

i. BMW Motorcycle

The Parties' Positions. The Husband contends that he owned the BMW Motorcycle at the time that the parties were married.^[157] In effect, the Husband argues that the BMW Motorcycle is his separate property. The Wife does not address the BMW Motorcycle in her Post-Trial Memorandum.

Classification. The Husband testified that he owned a BMW Motorcycle at the time of his marriage.^[158] Separate property shall mean property acquired before marriage. See DRL § 236(B)(1)(d)(1). Separate property, the exception to marital property, shall remain such. L.K.F. v. M.T.F., 82 Misc 3d 1223(A) (Supreme Court Nassau County 2024). No evidence or testimony was provided to contradict that assertion. The Court therefore classifies the BMW Motorcycle as the Husband's separate property.

Valuation. The Court notes that the Husband has already been found not to be credible. While the Husband testified at trial that the BMW Motorcycle is worth "about $15,000",^[159] the Husband offered no documentary evidence, such as an appraisal, or testimony, from an appraiser, to substantiate this conclusion. Inasmuch as the Husband has already been found to be totally lacking in credibility, the Court declines to adopt the Husband's self-assessed value of the BMW Motorcycle. To this end, the Court notes that the Husband claims to have had the BMW Motorcycle at the time of the parties' marriage nearly twenty-eight (28) years ago, and the Court is unsure as to the condition of the bike as well as the mileage thereon. It is simply impossible for this Court to value it.

Distribution. The Court is unsure of the whereabouts to the BMW Motorcycle, as the Husband testified that the Wife made his two bikes "disappear".^[160] The Court has carefully viewed the video evidence^[161] at trial, which reflects two motorcycles, one partially red and one partially yellow, outside of the parties' residence with a Bentley Automobile in the driveway. The video evidence reflects two male individuals at the home on April 4, 2020, at hours 14:40, 14:57 and 21:42. The video evidence is inconclusive to the Court as to the disposition of the motorcycles. Given the Husband's claim that the Wife made the motorcycles "disappear", and given the lack of evidence or proof of value, the Court is constrained to deny the Husband's request for a credit for the BMW Motorcycle. Accordingly, it is hereby:

ORDERED, that the Husband's request for a credit in the sum of $17,500.00 as and for the BMW Motorcycle be and the same is hereby DENIED.

ii. Ducati Motorcycle

The Parties' Positions. The Husband contends that, during the parties' marriage, he acquired a 2001 Ducati Motorcycle.^[162] The Wife does not address the Ducati Motorcycle in her Post-Trial Memorandum.

Classification. The Husband testified that he owned the Ducati Motorcycle from 2014 through 2017, which "used to be" in his garage.^[163] This was after the parties were married and prior to the commencement of this action. The Court therefore classifies the Ducati Motorcycle as marital property subject to equitable distribution.

Valuation. The Court again reiterates its finding that the Husband lacked credibility. While the Husband testified at trial that the Ducati Motorcycle was worth "about $25,000",^[164] the Husband offered no documentary evidence, such as an appraisal, or testimony, from an appraiser, to substantiate this conclusion. The Court declines to adopt the Husband's valuation of the Ducati Motorcycle and gives it no weight. In light of the Husband's failure to offer proof of value of the Ducati Motorcycle, which he claims the Wife made disappear (see infra), the Court is unable to ascribe a value to same.

Distribution. To this end, the Court notes that the Husband claims that two kids took his motorcycles out of the garage and made them disappear.^[165] The Court is unsure of the whereabouts to the Ducati Motorcycle, and, as stated aforesaid, the video evidence admitted into evidence is inconclusive to the Court as to the disposition of Ducati Motorcycle. The Court simply cannot equitable distribute a disappeared motorcycle with no evidence or expert testimony as to value. Accordingly, it is hereby:

ORDERED, that neither party is awarded equitable distribution of the Ducati Motorcycle.

M. Personal Property

The testimony with respect to the issue of personal property, was, at best, scant, and devoid of any relative specificity for this Court to quantify same. While the Husband argues that the Wife has retained $50,000 of jewelry, art, antiques, household furnishings, precious objects, precious metals and gold in the Bellmore Residence,^[166] no documentary evidence was offered into evidence at the trial to give this Court any indicia of what personal property, with any degree of specificity, remains to be divided and/or what the value of that personal property was, or is. It is not this Court's duty to guess, surmise, or otherwise speculate as to what property must be equitably distributed or sold. The Court therefore declines to distribute any personal property and/or award the Husband a sum of money, as he has failed to prove the value of such property.

N. Tax Debt

The Parties' Positions. The Husband argues that the parties have a substantial personal and Business tax liability, and that the Wife should be responsible for all of it.^[167] The Wife does not address the personal and Business tax liability in her Post-Trial Memorandum.

Classification. On or about May 3, 2021 and on or about July 26, 2021, the Wife filed a Voluntarily Disclosure and Compliance Agreement with the New York State Department of Taxation and Finance.^[168] Clearly, those Agreement(s) were filed in 2021, after the commencement of this action. On the personal side, these Agreement(s) were for tax years 2016, 2017 and 2018, which years were during the marriage. The testimony adduced at trial seemed to reflect that the Wife hired tax attorneys only because of this ongoing matrimonial litigation, and that her filing of these Agreement(s) appeared to be precipitated by fear that the undersigned Justice would report the parties to the relevant taxing authorities. Surely, the Wife bears some responsibility for the creation of this tax debt. However, for the Court to adopt the Husband's argument that the Wife should bear all of the tax debt, even though it was incurred for years during the parties' marriage, would be tantamount to this Court sanctioning nonpayment of taxes. The Court declines to sanction that position, and therefore classifies the tax liabilities as marital liabilities.

Valuation. With respect to the personal tax returns, for year 2016, it appears that $24,624 is owed; for year 2017, it appears that $26,588 is owed; and for 2018, it appears that $30,121 is owed. These sums do not include any penalties owed, if any. Therefore, the aggregate taxes owed to New York State for years 2016, 2017 and 2018 are $81,333. With respect to the Business, it appears that at least the sum of $185,043.86 is owed, if not more. Brisbane had indicated that approximately $212,000 is owed.

Distribution. It is well settled that trial courts are granted substantial discretion in determining what distribution of marital property—including debt—will be equitable under all the circumstances, taking into account the relevant statutory factors. Ragucci v. Ragucci, 170 AD3d 1481 (3d Dept. 2019). Expenses incurred prior to the commencement of an action for a divorce are marital debt to be equally shared by the parties upon an offer of proof that they represent marital expenses, while expenses incurred after the commencement of an action for a divorce are, in general, the responsibility of the party who incurred the debt. Epstein v. Messner, 73 AD3d 843 (2d Dept. 2010); see also Bari v. Bari, 200 AD3d 835 (2d Dept. 2021). The burden of repaying marital debt should be equally shared by the parties, in the absence of countervailing factors, and any such liability should be distributed in accordance with general equitable distribution principles and factors. Gargiulo v. Gargiulo, 183 AD3d 803 (2d Dept. 2020); see also Uttamchandani v. Uttamchandani, 175 AD3d 1457 (2d Dept. 2019). Taxes incurred before the commencement of an action and during a marriage constitute marital debt. Lekutanaj v. Lekutanaj, 234 AD2d 429 (2d Dept. 1996); see also Kaltenbach v. Kaltenbach, 121 AD2d 689 (2d Dept. 1986). Throughout this Decision and Order, this Court has, for the most part, allocated the parties' marital assets such that each party, except as otherwise set forth herein, shall receive fifty (50%) percent of the particular asset, given, among other factors, the long-term duration of this marriage. This Court finds no reason why the parties' personal tax debt for years 2016, 2017 and 2018 should not be allocated in the same fashion. With respect to the taxes owed by the Business, for the Court to saddle the Husband with a responsibility for 100% of same would be completely inequitable. Likewise, for the Court to saddle the Wife with responsibility for 100% of same would be akin to the Court countenancing the Husband's failure to report substantial cash revenue over the years. While the Court notes that it awarded the Wife thirty-five (35%) percent of the Business, the Court critically notes that each asset and/or liability need not be distributed in the same fashion. The trial court has broad discretion and is accorded substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances. Mula v. Mula, 131 AD3d 1296 (3d Dept. 2015). It appears that the only impetus for the Wife's filing with the New York State Department of Taxation and Finance was this litigation and the threat that the undersigned would involve the taxing authorities. The Court finds the only fair and equitable division of the Business tax debt is an equal allocation of same, especially given the aforesaid, in addition to the parties' long-term marriage and both parties' long-term knowledge of unreported cash revenue which they reaped the benefits of for years. Accordingly, it is hereby:

ORDERED, that the Wife shall be liable and responsible for fifty (50%) percent and the Husband shall be liable and responsible for fifty (50%) percent of the personal taxes owed to the New York State Department of Taxation and Finances for years 2016, 2017 and 2018; and it is further

ORDERED, that the Wife shall be liable and responsible for fifty (50%) percent and the Husband shall be liable and responsible for fifty (50%) percent of the taxes owed by the Business.

O. Waste

The Parties' Positions. The Husband claims that the Wife wastefully dissipated the aggregate sum of $339,741.54 from ten (10) different bank accounts, business and personal.^[169] The Wife claims that the Husband committed marital waste by, in effect, the expenditures of marital funds on his girlfriend, Ms. Diel.^[170]

i. Husband's Marital Waste Claim(s)

The Husband's claim(s) that the Wife wastefully dissipated marital asset(s) have been addressed in and are subsumed by the Court's findings in the equitable distribution of the Bank Accounts (see supra). The Court does wish to summarize herein, however, that the Husband, by documentary evidence, proved that the Wife wastefully dissipated the amounts indicated herein (see supra) inasmuch as the withdrawals from the various accounts bear the Wife's signature and the Wife, as trial, failed to explain these withdrawals, some of which were substantial of their own right. The Wife's substantial aggregate withdrawals and checks written to "cash", without any cognizable explanation, is tantamount to economic misconduct. See generally Mizrahi-Srour v. Srour, 138 AD3d 801 (2d Dept. 2016). As to any amounts that were claimed by the Husband to be wastefully dissipated by the Wife, the Court has considered the Husband's arguments and finds that, anything over the sums set forth herein, the Husband failed to prove at trial. For instance, the Court could not find that any of the "electronic transfers" reflected in the voluminous bank statements were wastefully dissipated by the Wife inasmuch as the statements are not reflective of which party made or initiated the transfers.

ii. Wife's Marital Waste Claim(s)

The party alleging that his or her spouse has engaged in wasteful dissipation of marital assets bears the burden of proving such waste by a preponderance of the evidence. Rosen v. Rosen, 192 AD3d 710 (2d Dept. 2021); see also Marino v. Marino, 183 AD3d 813 (2d Dept. 2020); see also Epstein v. Messner, 73 AD3d 843 (2d Dept. 2010). The Wife failed to meet her burden to prove that the Husband wastefully dissipated marital assets. While she argues that the Husband purchased a Maserati automobile for Ms. Diel, and while she argues that the Husband acknowledged purchasing a Maserati automobile for Ms. Diel, the Wife failed to offer documentary evidence at trial tracing the Husband's utilization of marital funds to purchase the Maserati for Ms. Diel. She also failed to offer any evidence that the Husband did, in fact, purchase a Maserati automobile. Insofar as the Wife argues that the Husband spent money on Ms. Diel, she failed to sufficiently quantify and/or prove, by the submission of documentary evidence, that the Husband spent marital money on Ms. Diel.

MAINTENANCE

For matrimonial actions commenced after January 23, 2016, the post divorce maintenance guidelines as contained in DRL § 236(B), which establishes a formula and guidelines, must be applied. The court must first apply one of two formulas based on the parties' respective incomes, capping the Payor's income at $228,000.00. Where the Payor's income is below or equal to the income cap and is also paying child support to the Payee, the calculation is as follows: calculate 20% of the Payor's income (up to $228,000.00) and subtract 25% of the Payee's income. Then, the Court must calculate 40% of the parties' combined income (capping the Payor's income at $228,000.00) and subtract the Payee's income. Next, the Court compares the resulting amounts from both calculations and the lesser amount is the presumptive amount of maintenance. The statute expressly provides that maintenance shall be calculated prior to child support because the amount of maintenance awarded shall be subtracted from the Payor's income and added to the Payee's income as part of the calculation of the child support obligation.

Notwithstanding the formulas set forth above, the statute provides the Court with flexibility to deviate from the presumptive amount of temporary maintenance. Thus, the Court may, in its discretion, adjust the award of maintenance in a situation where: (i) the Payor's income exceeds the statutory cap of $228,000.00; or (ii) the Court finds that the guideline amount of maintenance would be unjust and inappropriate. If the Court chooses to do so, it shall consider any one or more of a list of factors set forth in the statute. The aforementioned factors are as follows (see DRL § 236[B][6][e][1]):

a) The age and health of the parties;

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

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

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

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

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

g) Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section 459-A of the Social Services Law;

h) The availability and cost of medical insurance of the parties;

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

j) The tax consequences to each party;

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

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

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

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

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

When the Court determines that the guideline amount of maintenance would be unjust or inappropriate, the Court shall set forth, either in writing or on the record, the factor(s) it considered, the reasons for the deviation, and also the guideline amount of maintenance (see DRL §236[B][5-a][h][1]). The Court considered the statutory factors when determining the amount and duration of maintenance. In particular, the Court considered:

A. Duration of the Marriage, Age and Health of the Parties. The parties were married on February 12, 1992. This action for divorce and ancillary relief was commenced on February 4, 2020. This is a marriage of approximately twenty-eight (28) years. The Husband was born on XX XX, 1949, making him seventy-five (75) years old at the present time. The Wife was born on XX XX, 1964, making her fifty-nine (59) years old at the present time. Neither party offered any medical testimony or documentary medical evidence of any health infirmities or maladies which are currently suffered by either party. While both parties corroborated the other's testimony that the Husband was previously diagnosed with Non-Hodgkin's lymphoma and that he underwent chemotherapy for same, there is no dispute that the Husband returned to work in the same capacity as he worked prior to said diagnosis and treatment after his chemotherapy treatments ended for same.

B. Present and Future Earning Capacity. Of all of the factors that the Court must consider in its determination of maintenance in this case, if any, this was the most difficult factor. The Court finds that both parties lacked credibility relative to their finances and that both parties' accounts of their respective income(s) had no basis in reality. The Court found record support to impute $660,000.00 to the Husband as annual income based upon his signed vehicle lease application and $150,000.00 to the Wife as annual income based upon her credit application.

C. Need to Incur Education or Training Expenses. There was no testimony offered with respect to either party's need to incur education or training expenses. Given the Husband's age (see supra), and it appearing undisputed that he has been working as a self-employed landscaper for most of his adult life, it does not appear that the Husband will have a need to incur education or training expenses. On the cross-examination of the Wife, she testified that she does not need to find a job and she can work for her sons. Therefore, there was no evidence presented or testimony adduced as to the Wife's need to incur education or training expenses in order to seek gainful employment.

D. Termination of Child Support Award During Pendency of Temporary Maintenance Award. This factor is not applicable as no temporary maintenance order or award was ever issued during the pendency of this action, and there was never a child support award issued as the children are emancipated.

E. Wasteful Dissipation of Marital Property. While the Wife argues that the Husband committed marital waste on Ms. Diel, at trial, she failed to quantify and prove how much marital waste the Husband committed. While the Husband argued, in effect, that the Wife had committed marital residence by invading the various personal and Business accounts, the Court has carefully reviewed the various bank accounts (see supra) and found that the Wife committed marital waste in the sum of $272,168.00. The Court has recompensed the Husband for same in the equitable distribution section of this Decision and Order, but has considered this factor in the amount and duration of maintenance set forth herein.

F. Existence and Duration of a Pre-Marital Joint Household/Pre-Divorce Separate Household. The Court notes that the parties have been physically separated since the year 2020, and, during this action, which has lasted approximately four-and-a-half years, the Husband has paid no direct support to the Wife. That factor cuts both ways, however, inasmuch as the Wife has been living without direct support from the Husband for that same time. For the last four (4) years during the pendency of this action, the parties have, in effect, been living separate economic lives. In addition, the Court notes and has considered that while the parties drove luxury automobiles during their marriage as described in this decision, the Wife failed to prove that the parties lived a luxurious or extravagant lifestyle beyond driving luxury vehicles. There was no proof of expensive or extravagant purchases made during the marriage. Given the parties disparity of income, however, the Court nonetheless finds that an award of maintenance to the Wife is appropriate for the duration set forth herein.

G. Acts Inhibiting a Party's Earning Capacity/Ability to Obtain Meaningful Employment. The Wife signed a cancellation request of insurance for the Business on April 21, 2020,^[171] which the Court notes was after the commencement of this action. In addition, the Wife posted about the Business on Facebook^[172] things such as, and among other things "not licensed in Nassau County call consumer affairs to verify" and "does anyone use M & M L for their lawn service? Better check YELP" and "this business is not licensed in Nassau County Town of Hempstead Nassau County Consumer Affairs revoked the license in May 2020". The Court finds that the Wife's posts on social media about the Business were a direct effort, in part, to sabotage the Husband's business and earnings. The Court has considered her actions in determining the amount and duration of maintenance.

H. Availability and Cost of Medical Insurance. There was no evidence in the Record, other than the parties' respective Statement(s) of Net Worth, evidencing the actual availability and cost of medical insurance.

I. Care of Children/Step-Children. The Court notes that the parties' two (2) children are emancipated.

J. Tax Consequences. There was no testimony or evidence as to the tax consequences of any maintenance award in this matter. In fact, under the particular circumstances of this case, whereby the Husband has, for years, collected sums of unreported cash income, and whereby the Wife has known-about and lived-off of this unreported cash income, the Court has given little to no weight to this factor.

K. Standard of Living Established During Marriage. Aside from the parties' luxury vehicles, such as multiple Lamborghini automobiles, Cadillac automobiles, a Ferrari automobile and a Lamborghini automobile, many of which were only leased, the Court finds that these parties lived a middle-class lifestyle. The Court therefore finds that a modest award of maintenance is appropriate. There was no cognizable evidence in the Record of any luxuries or extravagant undertakings by these parties during their marriage.

L. Reduced or Lost Earning Capacity of Payee. The Court does not find that the Wife suffered a reduced or lost earning capacity. It is clear to the Court that the Wife, while not perhaps physically collecting cash from the customers, was partially responsible for the large sums of unreported cash revenue collected by the Business. The Wife could have chosen to inquire further or exercise more diligence as the President of the Business at one point, but, instead, she simply "went along" with what the Husband told her to report to the accountant. The Wife bears some degree of responsibility in this regard, which the Court has considered in the amount and duration of maintenance awarded.

M. Equitable Distribution of Marital Property. The Court has considered, among other things, that a large portion of the parties' assets are nonliquid, such as real estate. The Court has considered that it awarded the Wife fifty (50%) percent of the net proceeds of sale of the Wantagh Property, thirty-five (35%) percent of the Business as a distributive award, and that it found that the Bellmore Residence is the property of the Trust.

N. Contributions/Services of Payee Spouse. The Court has given weight to the fact that while the children are now emancipated, the Wife was the primary caregiver of the parties' children. The Court has also considered that the Husband had virtually no involvement with the upbringing or care of the children, and that the Wife effectively undertook these duties to the exclusion of the Husband. The Court simply cannot ignore this factor.

O. Any Other Factor that the Court Finds Just and Proper. The Court has considered, and given substantial weight to, the Wife's testimony on cross-examination that, in effect, she made no efforts to find employment during the pendency of this action and that she does not need to find a job (see infra ). The Court has also given substantial weight to the lack of credibility of the parties' concerning their finances, especially the Husband's representation on his Lamborghini lease concerning his income, as well as the lifestyle analysis performed by Brisbane. The Court has also given substantial weight to the Wife's deposition testimony, parts of which she acknowledges were untruthful. The Court could not rely upon the Wife's account of her finances, and was forced to rely upon her credit application wherein she represented that her income was $150,000.00 per annum.

*

1. Determination of Income

Prior to reaching its determination of the appropriate amount of post-divorce maintenance, if any, the Court must determine the incomes of the parties. In this case, this was no easy task and this was, probably, the most difficult task that the Court had to undertake. The positions of the parties were diametrically opposed to one another regarding each party's role in collecting the substantial cash income of the business. While both parties sought to point the proverbial finger at the other regarding who was responsible for all of the cash income that the parties were able to collect over the years, the common denominator, and undisputed fact, was that there was substantial cash received by the parties over many, many years. These partes have reaped the benefits of substantial unreported cash income for years. While the Court found both parties to be utterly devoid of credibility, the Court credits the testimony of E.I. P.I. credibly testified:

Q: Now, growing up, were you aware of what your father did for a living?

A: Yes.

Q: And what involvement, if any, did you have with regard to what your father did for a living?

MS. FRIEDMAN: Objection. Can we have a timeframe?

THE COURT: What did your dad do for a living to your understanding?

A: My dad owned and operated M & M L. He was a landscaper.

Q: Did you ever work for your father?

A: I did.

Q: In what capacity?

A: I would help them out in the office. I would help my parents do clerical work, and sometimes I would go on ride-alongs with my father.

* * *

Q: Were you compensated in any way?

A: Yes. I wasn't paid on the books, but it was just — I would just go there once in a while. It wasn't anything serious.

Q: When you were compensated, in what form were you compensated?

A: Money.

Q: In what form was the money? Check, cash?

A: Cash.

Q: Do you recall how much?

A: Like a hundred dollars here and there.

Q: And you mentioned ride-along. Can you tell me what's a ride-along?

A: I would go with my father to pick up cash from customers.

Q: Do you recall how old you were at the time?

A: From age 13 to 2018, I think I was 21.

Q: With what frequency?

A: Maybe, like, a few times a month, like, two or three times a month.

THE COURT: To collect cash?

THE WITNESS: Yes.

Q: Did you personally observe this interaction between your father and customers?

A: Yes.

Q: What do you recall observing?

A: Just him going to customers' houses, picking up a wad of cash and then putting it in an envelope in his truck.

Q: Did he do that every time you went on a ride-along?

A: Yes. If I was with him on a ride-along, it was to pick up money from customers.

Q: Did he invite you in these ride-alongs?

A: Yes.

Q: Do you know how much cash at the end of the ride-along he would have accumulated during this —

A: Every time was different. It could be a thousand dollars to $50,000.

Q: How do you know it was that kind of sum of money?

A: He would count it right in front of me and have me doublecheck.

Q: What did he do with the cash, if you know, at the conclusion of your ride along?

A: He just put it in his truck. I don't know what he did after that.

* * *

Q: Did you become aware, at any time between age 13 and 21, as to whether or not your father maintained cash in the home?

A: Yes. He always had cash on him. All the time. Every time I saw him he had a wad of cash on him. There was never a time he never had money on him, ever.

Q: Do you know how much he would typically have on his person?

A: Between 5 and $10,000.

* * *

Q: So what did you mean by, he always had cash on him?

A: He always had cash in the house, in his hand, in his pocket, in his truck, wherever he resided or wherever he was, he always had cash on him. He kept thousands and thousands of dollars in his draw next to his bed at all times. He always had the cash on him.

See May 3, 2023 Transcript.

The Court also viewed a video received in evidence^[173] which reflects a substantial bundled sum of cash, reflecting $20 bills, $50 bills and $100 bills, held together by what appears to be at least two (2) rubber bands in at least four segregated bundles held together with purple and white paper. It raised for the Court substantial questions as to the Husband's accessability to substantial amounts of cash, and also undercuts his testimony that he never received cash, which he, in fact, later contradicted on the record.

The conclusions of Brisbane's Lifestyle Analysis^[174] are completely at variance with what is reported on the parties' jointly filed income tax returns. For instance, in 2019, Brisbane found the total household expenditures to be $530,467.^[175] Yet the Wife's 2019 individual tax return^[176] reflects only $11,000 in adjusted gross income.^[177] The Court has reviewed the general ledger of the Business as of November 30, 2019^[178] which reflects total debits of $1,311,830.19 and total credits of $1,311,830.19. In 2018, Brisbane found the total household expenditures to be $464,853.^[179] In the same vein, however, the Business tax return for 2018^[180] reflects $736,880 in gross receipts or sales and ordinary business income of only $44,863, and the parties' 2018 jointly filed income tax return^[181] reflects total income of only $74,693. The conclusion for the Court is simple: something doesn't add-up. Brisbane concluded the following:

Based on the foregoing analysis, the annual lifestyle of the I household is approximately $497,700 per annum while total income before income taxes available to the I household is approximately $484,600.

The Court has given the appropriate — and substantial — weight to Brisbane's findings in the Lifestyle Analysis. The Husband's account of his income simply isn't believable. This is no better evidenced by his lease application(s) for his Lamborghini automobiles. First, the lease agreement dated February 22, 2021 for the 2020 Lamborghini Huracan^[182] reflects a monthly payment of $3,963.65, or the sum of $47,563.80 per year. Yet the Husband's 2020 individual tax return^[183] reflects total income of only $83,923 and taxable income of $66,592. The Court has legitimate concerns as to how the Husband spends more than half of his total income and nearly three quarters of his taxable income on just an automobile lease payment. No cognizable reconciliation of this was provided by the Husband at trial. Second, even more troubling is the Husband's lease application for the 2020 Lamborghini Aventador dated February 17, 2022.^[184] Among other things, the lease application reflects a first payment of $15,000.00 and, thereafter, forty-six (46) payments of $7,500 per month. That translates to yearly payments of $90,000.00. Strikingly, the Husband's 2021 individual income tax return^[185] reflects total income of $122,126 and taxable income of $98,929. The Court is equal parts curious and concerned as to how the Husband can spend nearly seventy-five (75%) percent of his total income and nearly one hundred (100%) percent of his taxable income on only an automobile lease payment. Once again, no cognizable reconciliation of this was provided by the Husband at trial. The conclusion is self-evident: the Husband's spurious account of his finances and income has no basis is reality.

The Husband's lease application^[186] for the 2020 Lamborghini Huracan Couple was telling, which the Court has also given substantial weight to. The Court notes that it is dated February 12, 2021, which is after the commencement of this action. He lists thereon his "verifiable annual income" to be $660,000.00. At the bottom of the personal application, above the Husband's signature, it reads that ". . . [t]o the best of my knowledge, the information provided above it true and correct . . ." Yet the Husband's representation of his income on his lease application (see supra) directly contradicts what he reported on his 2020 and 2021 income tax returns. The Husband's 2020 individual income tax return^[187] reflects total income of only $83,923 and the Husband's 2021 individual tax return^[188] reflects total income of only $122,126. Yet the Husband, on both his 2020 and 2021 individual income tax returns, represented his marital status as "single" notwithstanding the fact that his marriage to the Wife has yet to be dissolved by this Court. Inasmuch as the Husband has misrepresented his marital status^[189] to the Internal Revenue Service, the Court therefore chooses not to rely upon the Husband's representation of his income as listed on his tax return.

The Court also finds that the Husband contradicted his own testimony, which further undermined his credibility. The Husband testified on August 18, 2022:

Q: How did you receive payments from clients?

A: P.O. Box.

Q: What would they send to the P.O. Box?

A: A check that we maintain every week at the property.

Q: Did you receive any credit card payments?

A: That, I don't know.

Q: Did you receive cash payments?

A: No, no cash.

See August 18, 2022 Transcript.

However, contradicting that testimony, the Husband later testified on August 18, 2022:

Q: The action was commenced in February 2020. Towards the end of 2019, do you recall receiving any monies from any customers or clients?

A: Yes.

Q: What did you receive and what did you do with the money?

A: Usually at the end of the season we got about 10, 15 customers they pay in cash, and I receive about 10, $15,000. I call Camille and she came to the yard, my son and my daughter, and I gave her the money to make sure that she will pay the bill. We owe a lot of money, and she said she would have did that, she would have paid the bill, but she never did.

* * *

Q: Did you ever receive any cash that you did not give to Mrs. I.?

A: No.

MR. ROSEN: It was a leading question, your Honor.

THE COURT: It's an interesting answer.

Q: When you gave Mrs. I cash, did you say anything to her as to what to do with it?

A: No. I just told her to pay, to make sure to pay the bill. She used to tell me —

MR. ROSEN: Objection, not responsive.

THE COURT: But you never got cash that you didn't give to her, right? But you got cash?

THE WITNESS: I got cash at the end of the season, your Honor.

THE COURT: At the end of season.

THE WITNESS: Yes, at the end of the season.

See August 18, 2022 Transcript.

The Court has also taken the liberty of reviewing the Business tax return in 2021^[190] juxtaposed to the Business bank statements at Capital One Bank (account number ending xxx6563) for the period from January 1, 2021 through December 31, 2021.^[191] The 2021 tax return for the Business reflects $524,461 in gross receipts and sales. Yet, the Business's Capital One Bank account reflects deposits and credits of $639,032.32 during the year 2021. The unexplained difference of $114,571.32 confirms the Court's belief that the Husband, even after the commencement of this action, continues to receive unreported cash revenue from the Business.

The Wife fares no better because she actively lied under oath. Many times during the direct questioning of the Wife on the Husband's case-in-chief, the Wife acknowledged giving untruthful answers under oath at her deposition. While the Wife claims, in effect, that it was on the advice of counsel that she gave certain answers, the Wife nonetheless had an obligation to answer questions under oath. The Court, therefore, was unable to determine if the Wife was telling the truth at her deposition or the truth at trial. Her credibility was virtually nonexistent, and the Court found many of the answers she gave at trial to be evasive. The Court carefully observed the Wife during her testimony on trial. She appeared uncomfortable on the stand, exhibiting equal parts evasiveness and anger. Often times, it was the Court's opinion that the Wife was answering questions in a way so as to, in effect, "buy" time to make-up an answer on the witness stand. The Court need not reiterate all of the instances in which the Wife provided untruthful testimony at her deposition, which is more fully set forth herein. In short, the Court declines to rely upon the Wife's account of her finances as she testified at trial inasmuch as the Wife admitted to giving untruthful answers at her deposition which was under oath.

A. Husband's Income. Where a party's account is not believable, the court may impute a true or potential income higher than alleged, and the court has considerable discretion in determining whether income should be imputed to a party. Klein v. Klein, 178 AD3d 802 (2d Dept. 2019). A court need not rely upon a party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated future potential earnings. Duffy v Duffy, 84 AD3d 1151 (2d Dept. 2011); see Wesche v Wesche, 77 AD3d 921 (2d Dept. 2010). The court may impute income to a party based on his or her employment history, future earning capacity, educational background, or money received from friends and relatives. Matter of Rohme v. Burns, 92 AD3d 946 (2d Dept. 2012). A determination of whether to impute income to a party must be supported by the record. See generally Matter of Kiernan v. Martin, 108 AD3d 767 (2d Dept. 2013); see also and see generally Matter of D'Andrea v. Prevost, 128 AD3d 1166 (3d Dept. 2015) (court must articulate basis for imputation and record evidence must support the calculations). Here, the Court elects to impute the sum of $660,000.00 to the Husband as income. The basis for the imputation is the Husband's post-commenced signed lease application wherein he represents his income to be as such. There is no dispute that the Husband signed this document. The Court also finds that an imputation of $660,000 as income to the Husband is in more in-line with Brisbane's finding(s) in the Lifestyle Analysis regarding the parties' yearly expenditures.

B. Wife's Income. As stated aforesaid, but reiterated herein, in determining a party's maintenance obligation, a court need not rely upon a party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated future potential earnings. Tuchman v. Tuchman, 201 AD3d 986 (2d Dept. 2022). The Wife avers that income should be imputed to her in the sum of $31,200 based upon full-time employment at minimum wage.^[192] The Court finds that argument unpersuasive. Initially, the Court notes that the parties' children are well-beyond the age of emancipation, and the Wife made no efforts, in the four years that this litigation progressed, to obtain any employment. In addition, the Wife testified that she can, in effect, work for her sons if she so chooses (see infra). It is also clear to the Court that the Wife played a large role in working for the Business, including performing clerical duties, among other things. It is also crystal clear to the Court that the Wife knew about the substantial unreported cash income and said nothing to the accountant with respect to same. In or about January or February of 2018, the Wife filled-out a credit application with Chase.^[193] The credit application was in the name of the Wife, and she represented her "primary income" to be $150,000.00 "A", meaning annually. Given the Wife's acknowledgment that her prior testimony at her deposition was untruthful, and given her utter lack of credibility, the Court elects to impute the sum of $150,000.00 per annum to the Wife as and for income. The Court finds record support for this imputation. See generally Matter of Drake v. Drake, 185 AD3d 1382 (4th Dept. 2020). As a final point with respect to the imputation of income to the Wife, she argues that the Husband's verifiable income is $660,000.00 based upon the representation made by the Husband on his loan application.^[194] Then, as the saying goes, what's good for the goose is good for the gander. To this point, as the Wife represented her annual income to be $150,000.00 on her credit card application, the Court will rely upon that.

Here, the imputed income to the Husband of $660,000.00 per annum exceeds the $228,000.00 income cap. Pursuant to DRL § 236(B)(6)(d):

(d) Where the payor's income exceeds the income cap, the court shall determine the guideline amount of post-divorce maintenance as follows:

(1) the court shall perform the calculations set forth in paragraph c of this subdivision for the income of payor up to and including the income cap; and

(2) for income exceeding the cap, the amount of additional maintenance awarded, if any, shall be within the discretion of the court which shall take into consideration any one or more of the factors set forth in subparagraph one of paragraph e of this subdivision; and

(3) the court shall set forth the factors it considered and the reasons for its decision in writing or on the record. Such decision, whether in writing or on the record, may not be waived by either party or counsel.

2. Statutory Computations — DRL § 236(B)(6)(d)(1)

Pursuant to the aforesaid statutory calculations, this Court utilized the calculation where the Payor is not paying child support to the Payee. Accordingly, the Court made the following computation based upon the respective imputed income(s) to each of the party(ies): the payor's percentage ($228,000.00 × 30% = $68,400.00) minus the payee's percentage ($150,000.00 × 20% = $30,000.00) = $38,400.00. The Court then compared this resulting number with the following: payor's income ($228,000.00) plus payee's income ($150,000.00), which equals $378,000.00 × 40%, which equals $151,200.00. Next, the Court subtracted one hundred percent (100%) of the payee's income ($150,000.00 from $151,200.00), which equals $1,200.00. The lesser of these amounts is the "presumptive award" pursuant to the statute, which is $1,200.00 per year, or the sum of $100.00 per month.

3. Income Exceeding the Cap — DRL § 236(B)(6)(d)(2)

Since this factor is within the Court's discretion, the Court has carefully considered the facts of this case. The Wife asks this Court for maintenance in the sum of $113,760 per year, or the sum of $9,480 per month.^[195] The Court finds that request to be unreasonable. The Court has reviewed the Wife's Statement of Net Worth as of April 15, 2022.^[196] While the Wife lists her monthly expenses of $9,329, she failed to substantiate that she actually incurs some of these expenses. For instance, while the Wife lists rent of $3,500 per month, she failed to offer any proof that she is actually paying $3,500 in rent, and to whom she is paying that rent to. The Wife lists dry cleaning expenses of $100 per month, but failed to prove that she, with consistency, incurs that expense. The Wife lists $100 per month as car wash expenses and $300 per month as public transportation expenses, but failed to offer proof that she is incurring those expenses. The Wife also lists $500 per month in unspecified "loan" payments, but failed to offer any proof of consistent loan repayments. The aforesaid stated expenses, alone, total $4,500 per month in expenses that the Wife failed to prove she is paying or is incurring. Therefore, of the Wife's stated monthly expenses of $9,329, she failed to offer any cognizable evidence that she is incurring more than $4,829 per month.

Since the overriding purpose of maintenance is to provide a spouse with economic independence (see Mahoney v. Mahoney, 197 AD3d 638 (2d Dept. 2021)), the Court does not find, based upon the facts of this case, that an award of maintenance of $9,840 per month is appropriate, as the Court finds that same will be a windfall to the Wife. However, the Court does find that the presumptive amount of maintenance of $100.00 per month to be unjust and inappropriate, and the Court finds that such an award would be unfair and tantamount to punishment to the Wife. Even with the imputed income(s) set forth herein (see supra), there is no dispute that the Husband earns more than the Wife. The Court therefore finds that additional discretionary maintenance of $900 per month, for a total sum of $1,000 per month, is appropriate. Coupled with the Wife's self-represented income to a banking institution of an ability to earn $150,000.00 per annum, an award of maintenance of $1,000.00, plus the hundreds of thousands of dollars in marital waste she committed, and given her representation that she need not find a job, the Court finds that this sum will enable her to meet her expenses and become economically self-supporting.

4. Factors Considered — DRL § 236(B)(6)(d)(3)

The Court finds the presumptive amount of maintenance of $100.00 per month to be unjust and inappropriate in this case, and the Court elects to upwardly deviate therefrom, based upon myriad factors explained herein, in addition to that which is set forth aforesaid (see supra). First, the Court has considered the age and health of the parties. See DRL § 236(B)(6)(e)(1)(a). The Court has considered the Husband's current age of seventy-five (75) years and that, while he appears to be in remission from Non-Hodgkins lymphoma, it is a fact that the Husband previously had been diagnosed with an aggressive form of the disease. At seventy-five (75) years old, the Court simply cannot expect that the Husband can work for the duration requested by the Wife. While the Wife seeks maintenance for a total of twelve (12) years retroactive to February 27, 2020,^[197] the Court does not find it reasonable to conclude that the Husband will continue to be able to work until he attains the age of eighty-three (83) as a landscaper, a labor-intensive job. However, the Court can reasonably expect that the Husband continue to work a few more years, especially given the lease on his Lamborghini automobile.

Second, the Court has considered the present or future earning capacity of the parties, including a history of limited participation in the workforce. See DRL § 236(B)(6)(e)(1)(b). The parties' conduct in living a lifestyle based upon substantial unreported cash income makes considering this factor very difficult. Absent the Husband's automobile lease application (see supra) and the Wife's credit application (see supra), neither party really quantified how much cash income these parties truly earned. It is also abundantly clear to the Court that while the Wife may not have, per se, collected cash from the customers of the Business, she was, to some degree, just as complicit as the Husband inasmuch as she knew about the substantial cash revenue of the Business and profited for same. Both parties — on credit applications to banking institutions — asked those banking and/or lending institutions to rely upon their representations of income: $660,000.00 as represented by the Husband and $150,000.00 as represented by the Wife. The Court elects to rely upon those representations.

Third, the Court has considered the need, if any, of one party to incur education or training expenses. See DRL § 236(B)(6)(e)(1)(c). At seventy-five (75) years old, it does not appear as if the Husband needs to incur education or training in a field that he has worked in since 1970. Likewise, inasmuch as the Wife testified, in sum and substance, that she does not need to get a job, that she was waiting to see the outcome of this litigation, and that she can work for her sons, it does not appear as if she needs to incur education or training. Fourth, the Court has considered the wasteful dissipation of marital property. See DRL § 236(B)(6)(e)(1)(e). The Court has considered the Wife's withdrawals from the parties' personal and business bank accounts (see supra) in the aggregate sum of $272,168.00.

Fifth, the Court has considered the existence and duration of a pre-marital joint household or a pre-divorce separate household. See DRL § 236(B)(6)(e)(1)(f). The Court has considered the fact that the parties lived together for years as Husband and Wife, but also considered the fact that the parties have lived separate and apart for nearly four-and-a-half years, commencing in 2020, and the Wife has been living without direct support from the Husband since that time. However, the Court finds it inequitable that, given the parties' disparity of income, and given that the Husband ran the Business for years and collected cash revenue from customers and failed to report same to the relevant taxing authorities, that the Wife has been deprived of any maintenance at all. Sixth, the Court has considered the tax consequences to each party. See DRL § 236(B)(6)(e)(1)(j). Being that the parties failed to pay taxes on cash revenue acquired from the Business for years, the Court finds that the tax consequences will have little to no bearing on the maintenance award herein, and the Husband and Wife reaped the benefits, for years, of not paying taxes on revenue received. Seventh, the Court has considered the standard of living the parties established during the marriage. See DRL § 236(B)(6)(e)(1)(k). Aside from the luxury vehicles driven by the parties' during their marriage, including a Bentley, a Ferrari, and Escalade and a few Lamborghini automobiles, many of which were leased, the Court finds that these parties lived a middle class lifestyle. Neither party introduced evidence or convinced the Court that these parties lived a life of extravagance, so the Court finds that a modest award of maintenance is appropriate.

Eighth, the Court has considered the equitable distribution of marital property. See DRL § 236(B)(6)(e)(1)(m). The Court has considered, among other things, that it has awarded the Wife thirty (30%) percent of the appraised value of the Business and fifty (50%) percent of the proceeds of the sale of the Wantagh Property. The Court has also considered that it found that the Bellmore Residence and the equitable life estate(s) were not subject to equitable distribution, and that the Wife remains living in the Bellmore Residence while the Husband lives outside of said residence in spite of his equitable life estate. Ninth, the Court has considered the contributions and services of the Wife as a spouse, parent, wage earner and homemaker and to the career or career potential of the Husband. See DRL § 236(B)(6)(e)(1)(n). While the Wife was, indeed, the primary caretaker of the children, and raised these children virtually without any helpt from the Husband, the Court finds that the Wife had substantial involvement in the management of the bank accounts of the Business, as many of the checks and withdrawal slips bear her signature. Finally, the Court has considered any other factor that it finds just and proper. See DRL § 236(B)(6)(e)(1)(o). In this respect, the Court has considered the stated and unproven expenses listed on the Wife's Statement of Net Worth.^[198] In addition, the Court has considered that these parties, for years, benefitted from the unexplained failure to pay taxes on revenue earned by the Business. While the Wife may not have physically "collected" money from customers, the Court finds that she knew about the cash revenue of the Business and reported to the Business accountant only what was needed to give the appearance of a small business. Both parties were complicit in their scheme to evading taxes. The Court has also considered the Wife's social media posts about the Business and her conduct in cancelling the insurance of the Business. The court has, in this vein, concomitantly considered the fact that in spite of this conduct, the Husband failed to quantify or establish how much business was actually lost as a result of the Wife's actions as described herein.

5. Duration of Maintenance

DRL § 236(B)(6)(f) provides:

The duration of post-divorce maintenance may be determined as follows:

(1) The court may determine the duration of post-divorce maintenance in accordance with the following advisory schedule:

                                                Percent of the length of the
  Length of the marriage                        marriage for which
                                                maintenance will be payable

  0 up to and including 15 years                15% - 30%

  More than 15 up to and including 20 years     30% - 40%

  More than 20 years                            35% - 50%

(2) In determining the duration of post-divorce maintenance, whether or not the court utilizes the advisory schedule, it shall consider the factors listed in subparagraph one of paragraph e of this subdivision and shall set forth, in a written decision or on the record, the factors it considered. Such decision shall not be waived by either party or counsel. Nothing herein shall prevent the court from awarding non-durational maintenance in an appropriate case.

The Court declines to utilize the advisory schedule for the reasons set forth herein, and sets the duration of maintenance, inclusive of support retroactive to the date of first request (to wit: February 27, 2020), at seventy-eight (78) months, or six (6) years and six (6) months. First, the Court has considered the age and health of the parties. See DRL § 236(B)(6)(e)(1)(a). The Court notes that the Husband is seventy-five (75) years old. The Court also notes that in August of 2024, this year, the Wife will turn sixty (60) years old. The award set forth herein will enable the Wife to attain the age whereby she can begin collecting Social Security benefits. The Court has also considered that the Husband's current lease for his 2020 Lamborghini Aventador commenced on February 17, 2022, and continues for forty-six (46) additional months thereafter, with the lease terminating on or about December 17, 2025. For the Husband to continue to pay maintenance until the month of the Wife's sixty-second birthday, or August, 2026, an additional eight (8) months, is not unreasonable, especially given that the Husband continues to work at age seventy-five and his testimony at trial that, in effect, he may continue to work if he feels good. Second, the Court has considered the contributions and services of the payee as a spouse, parent and homemaker. See DRL § 236(B)(6)(e)(1)(n). While the Husband takes the position that the Wife should not be awarded any maintenance because of, among other things, his age, the Court finds this position to be unreasonable. This Court simply cannot ignore the Wife's testimony — which was unrefuted — that she was the primary caretaker to the parties' two children. The evidenced adduced at trial was that she raised the children to the exclusion of the Husband and that the Husband had little-to-no involvement with these children. Third, the Court has also considered any other factor which the Court finds just and proper. See DRL § 236(B)(6)(e)(1)(o). The Court has given weight to the Wife's testimony that, in effect, she does not have to find a job. As her testimony reflects:

Q Now, ma'am, let me ask you this question: You said in the voice message, do you expect me to get a job in the mall now, you kidding. Do you recall saying that?

A: No, I do not.

Q: Did you hear it on the voice message?

A: I did hear it, yes.

Q: So, ma'am, let me ask you a question: What have you done in terms of trying to find a job?

A: Can you be more specific?

Q: Sure.

Since the commencement of this action in February 4, 2020, tell us all the efforts you've made to find employment?

MR. ROSEN: I believe counsel went into this when she called the witness to the stand on direct, your Honor.

MS. FRIEDMAN: Your Honor, this is my cross of his direct.

THE COURT: You could ask. Go ahead.

Since February 4th of 2020 —

Q: — what are all the things you've done to find a job?

A: I haven't done anything specific to find a job because I don't need to find a job.

Q: You don't need to find a job?

A: No.

Q: Why is that?

A: Because I have sons that have companies. I can work for them if I choose to.

See June 12, 2023 Transcript.

The overriding purpose of a maintenance award is to give the spouse economic independence, and it should be awarded for a duration that would provide the recipient with enough time to become self-supporting. Kaprov v. Stalinsky, 145 AD3d 869 (2d Dept. 2016). Given that the Wife acknowledged that she does not need to find a job, the Court finds that she is not in need of a substantial duration of maintenance to become self-supporting. While maintenance should be awarded for a duration that would provide the recipient with enough time to become self-supporting (see Castello v. Castello, 144 AD3d 723 (2d Dept. 2016)), for the Court to adopt the Wife's logic and to award her durational of maintenance for twelve (12) years would, in effect, countenance her admitted refusal to seek employment. While the Wife certainly has the right to remain complacent not working, her complacency in that regard should not be to the long financial detriment of the Husband.

6. Conclusion

Accordingly, based upon all of the aforesaid factors and the facts and circumstances of this case, it is hereby:

ORDERED, that the Husband shall pay maintenance to the Wife in the sum of $1,000.00 per month, retroactive to February 27, 2020, the date of first request,^[199] with the Husband's first full payment commencing on August 27, 2024, and payable on the twenty-seventh (27th) day of each month for a total of seventy-eight (78) months,^[200] unless sooner terminated upon the death of the Wife or the Wife's remarriage; and it is further

ORDERED, that retroactive spousal maintenance arrears are hereby calculated to be $54,000.00,^[201] which sum shall be paid to the Wife to the extent more fully set forth herein; and it is further

ORDERED, that the $54,000.00 in retoractive maintenance arrears shall be payable to the Wife directly from the Husband's share of the proceeds of sale which are derived from the sale of the Wantagh Property; and it is further

ORDERED, that in the event that the Husband's share of the net proceeds of sale of the Wantagh Property are insufficient to satisfy his spousal maintenance arrears, then, in that event, any remaining arrears shall be paid by the Husband to the Wife within sixty (60) days of the closing of title on the Wantagh Property.

LIFE INSURANCE

DRL § 236(B)(a)(8)(a) provides, inter alia, that:

". . . [i]n any matrimonial action the court may order a party to purchase, maintain or assign a policy of . . . insurance on the life of either spouse, and to designate in the case of life insurance, either spouse or children of the marriage . . . 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 . . ."

In Sinnott v. Sinnott, the Second Department wrote that courts have the general authority to order a party to purchase, maintain or assign a policy of insurance on the life of either spouse, and, in that case, the supreme court should have directed the defendant to obtain or maintain a policy of life insurance for the benefit of the plaintiff to secure his maintenance obligation. See generally Sinnott v. Sinnott, 194 AD3d 868 (2d Dept. 2021). Here, the Husband's prospective maintenance obligation is approximately twenty-four (24) months from the date hereof at a rate of $1,000.00 per month. He should have a life insurance policy to secure that sum. To this end, it is hereby:

ORDERED, that within sixty (60) days of the date of this Decision and Order, the Husband shall obtain and/or maintain a policy of life insurance on his life with a death benefit in the sum of $25,000.00 naming the Wife as beneficiary to secure his spousal maintenance obligation; and it is further

ORDERED, that the face amount of the Husband's life insurance policy may be reduced annually so long as the face amount of said policy is sufficient to cover the Husband's remaining maintenance obligation.

COUNSEL FEES^[202]

DRL § 237(a) provides, in part:

". . . (a) In any action or proceeding brought . . . for a divorce . . . the court may direct either spouse . . . to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties . . . Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses . . ."

(emphasis added).

Here, both parties have submitted requests for reimbursement of counsel fees. The Husband seeks reimbursement in the sum of $244,552 for counsel and expert fees, and the Wife seeks reimbursement in the sum of $256,469.08 for counsel fees and reimbursement in the sum of $10,216.70 for transcript costs. Here, while the parties Stipulation that the issue of counsel fees could be submitted on papers without the need for counsel to testify,^[203] the Court notes that neither party has submitted an Affidavit detailing the financial agreement between themselves and their counsel, such as the amount of any retainer paid to their counsel, the amounts paid and still owing to their counsel, the hourly amount charged by their respective counsel, and the amounts paid to their counsel. Inasmuch as the text of DRL § 237(a) requires both counsel and the moving party to submit an Affidavit to this effect, the Court finds the papers to be defective. Accordingly, it is hereby:

ORDERED, that the Husband's request for reimbursement of counsel and expert fees be and the same is hereby DENIED WITHOUT PREJUDICE and with leave to renew upon the submission of proper papers; and it is further

ORDERED, that the Wife's request for reimbursement of counsel fees and transcript costs be and the same is hereby DENIED WITHOUT PREJUDICE and with leave to renew upon the submission of proper papers.

MISCELLANEOUS

An Order directing the submission of the Findings of Fact, Conclusions of Law and Judgment of Divorce, consistent with this Decision and Order, shall be issued separately and simultaneously herewith, and Judgment is to be settled on notice in accordance with 22 NYCRR § 202.48.

* * *

Any other relief requested not specifically addressed herewith is DENIED.

This constitutes the Decision and Order of this Court.

[1] There was no evidence received at the trial that either party received a substantial inheritance which the parties lived-off of.

[2] See May 16, 2023 Transcript, page "10", lines "23" through "24".

[3] See May 16, 2023 Transcript, page "52", lines "1" through "2".

[4] While the Court, in this Decision and Order, will refer to the parties as "Husband" and "Wife", where appropriate, for the purposes of identifying the parties' exhibits proffered at trial, the Court will refer to the "Husband" as the "Plaintiff" and the "Wife" as the "Defendant".

[5] See Plaintiff's Exhibit "1", in evidence.

[6] Motion Sequence No.: 001. Upon the signing of that Order to Show Cause, all proposed preliminary relief was struck by the Court.

[7] See Plaintiff's Exhibit "2", in evidence.

[8] M & M LD, Inc., also known as M & M DP, Inc., or any other permutation thereof, will hereinafter be collectively referred to as the "Business" throughout this Decision and Order.

[9] A 2014 Lamborghini Aventador, a 2014 Lamborghini Superleggerra, a 2016 Bentley and a 2019 Audi Q3.

[10] Motion Sequence No.: 002.

[11] Motion Sequence No.: 003. Upon the signing of that Order to Show Cause, this Court granted certain preliminary relief sought to the extent that enforcement of a Judicial Subpoena Duces Tecum and a Judicial Subpoena served upon TheSoul Publishing LTD was stayed.

[12] After the trial of this matter had already started.

[13] Motion Sequence No.: 004.

[14] After the trial of this matter had already started.

[15] Motion Sequence No.: 005.

[16] Motion Sequence No.: 006. Upon the signing of that Order to Show Cause, this Court, in sum and substance, granted certain preliminary relief requested to the extent that it enjoined the Husband or anyone acting on his behalf from transferring ownership or registration of and enjoined him from selling a certain 2020 Lamborghini Aventador, directed the Husband to remove any and all sale or consignment listings for said vehicle, and enjoined the Husband or anyone acting on his behalf from listing for sale the subject vehicle.

[17] Motion Sequence No.: 007.

[18] The parties thereupon jointly requested a one (1) week extension to file their applications for counsel fees after January 26, 2024, but that application was denied by the Court.

[19] See Plaintiff's Exhibit "61", in evidence.

[20] Michael Tama, Esq.

[21] See Plaintiff's Exhibit "60", in evidence.

[22] The Wife acknowledged, however, that at her deposition, she testified that she did not have any conversations with the Husband with respect to placing the Bellmore Residence into a trust. The Wife acknowledged, again, having lied at her deposition.

[23] The cross-examination of the Wife was, at this point, held in abeyance, as the parties agreed that a certain witness, Benjamin Schuver, from Brisbane Consulting Group, could testify out of order. The cross-examination of the Wife resumed on June 23, 2022.

[24] At that time, the Business was known as M & M DP, Inc.

[25] The Wife was present at the worker's compensation hearing. The Husband lost the hearing, and worker's compensation awarded $68,000 to the undocumented worker. Thus, the Husband could not find worker's compensation insurance.

[26] M & M DP, Inc.

[27] Anywhere from eight (8) to ten (10) employees.

[28] See Plaintiff's Exhibit "79", in evidence.

[29] See Plaintiff's Exhibit "45", in evidence.

[30] See Plaintiff's Exhibit "22", in evidence.

[31] See Plaintiff's Exhibit "19", in evidence.

[32] See Plaintiff's Exhibit "16", in evidence.

[33] See Plaintiff's Exhibit "13", in evidence.

[34] The 2019 tax return was not received by the witness, but the information as to the income for year 2019 came from the general ledgers.

[35] See Plaintiff's Exhibit "79", in evidence, page "13".

[36] M & M LD, Inc., was the successor to M & M DP, Inc. See Plaintiff's Exhibit "79", in evidence, page "4".

[37] M & M L, Inc. was established on May 12, 1987. See Plaintiff's Exhibit "79", in evidence, page "4".

[38] The witness testified that the tax liability applies to years 2016, 2017 and 2018.

[39] See Plaintiff's Exhibit "79", in evidence, pages "14"-"15".

[40] See Defendant's Exhibit "A", in evidence.

[41] See Plaintiff's Exhibit "76", in evidence.

[42] See Plaintiff's Exhibit "3", in evidence.

[43] See Plaintiff's Exhibit "13", in evidence.

[44] See Plaintiff's Exhibit "16", in evidence.

[45] See Plaintiff's Exhibit "5", in evidence.

[46] See Plaintiff's Exhibit "19", in evidence.

[47] See Plaintiff's Exhibit "7", in evidence.

[48] See Plaintiff's Exhibit "11", in evidence.

[49] See Plaintiff's Exhibit "12", in evidence.

[50] See Plaintiff's Exhibit "88", in evidence.

[51] See Plaintiff's Exhibit "42", in evidence.

[52] See Plaintiff's Exhibit "50", in evidence.

[53] See Plaintiff's Exhibit "45", in evidence.

[54] See Plaintiff's Exhibit "44", in evidence.

[55] See Plaintiff's Exhibits "37", "38", "39" and "40", in evidence.

[56] See Plaintiff's Exhibit "89", in evidence.

[57] This chart was based off of Exhibits "37", "38", "39" and "40".

[58] The Husband also testified that, on January 14, 2021, his attorneys reached out by letter to the Wife's attorneys by letter (see Plaintiff's Exhibit "25", in evidence) requesting information needed to file the 2019 tax return. The Husband testified that he did not receive the necessary documents to file a tax return for year 2019, and, therefore, he does not believe that a return was filed for that year. The Husband emphasized that, during year 2019, the Wife was the listed owner of the business.

[59] See Plaintiff's Exhibit "34", in evidence.

[60] See Plaintiff's Exhibit "84", in evidence.

[61] See Plaintiff's Exhibit "46", in evidence.

[62] See Plaintiff's Exhibit "48", in evidence.

[63] See Plaintiff's Exhibit "62", in evidence.

[64] See Plaintiff's Exhibits "55" and "57", in evidence.

[65] See Plaintiff's Exhibit "54", in evidence.

[66] See Plaintiff's Exhibit "93", in evidence.

[67] See Plaintiff's Exhibit "94", in evidence.

[68] See Plaintiff's Exhibit "59", in evidence.

[69] See Plaintiff's Exhibit "28", in evidence.

[70] The Husband testified that this Lamborghini is blue and yellow, and that there are only thirty-six of them in the world.

[71] See Plaintiff's Exhibit "93", in evidence.

[72] See Plaintiff's Exhibit "59", in evidence.

[73] See Defendant's Exhibit "D", in evidence.

[74] See Plaintiff's Exhibit "27", in evidence.

[75] See Plaintiff's Exhibit "27", in evidence.

[76] See Plaintiff's Exhibit "104", in evidence.

[77] See Plaintiff's Exhibit "29", in evidence.

[78] See Plaintiff's Exhibit "107", in evidence.

[79] See Plaintiff's Exhibit "93", in evidence.

[80] See Plaintiff's Exhibit "29", in evidence.

[81] Ms. Diel testified pursuant to subpoena.

[82] See Defendant's Exhibit "L", in evidence.

[83] See Defendant's Exhibit "O", in evidence.

[84] At or around the close of E.I.'s direct testimony, and on the Record, the Husband consented that he removed two Lamborghini automobiles from the Bellmore Residence plus certain "memorabilia".

[85] Michael Tama, Esq.

[86] The Wife testified that the purchase price of the Dodge Viper was approximately $60,000 to $70,000.

[87] See Defendant's Exhibit "W", in evidence.

[88] See Defendant's Exhibit "U", in evidence.

[89] See Defendant's Exhibit "T", in evidence.

[90] See Defendant's Exhibit "Q", in evidence.

[91] See Defendant's Exhibit "R", in evidence.

[92] Kestenbaum & Mark, Esqs.

[93] See Defendant's Exhibit "Z", in evidence.

[94] See Defendant's Exhibit "AA", in evidence.

[95] See Defendant's Exhibit "AL", in evidence.

[96] See Defendant's Exhibit "AE", in evidence.

[97] See Defendant's Exhibit "AH", in evidence.

[98] See Defendant's Exhibit "Y", in evidence.

[99] See Plaintiff's Exhibit "62", in evidence.

[100] See Wife's Post-Trial Memorandum, page "19".

[101] See Husband's Post-Trial Memorandum, page "33".

[102] The parties were married twenty-eight years and the Husband conceded that the property was acquired fifteen to twenty years ago.

[103] See Defendant's Exhibit "D", in evidence.

[104] See Plaintiff's Exhibit "50", in evidence.

[105] See Plaintiff's Exhibit "50", in evidence.

[106] Should the listing broker recommend an initial listing price in excess of $600,000.00, the parties are, of course, free to follow the advice of the listing broker.

[107] See Plaintiff's Post-Trial Memorandum, pages "32" to "33". The Husband seeks, in effect, an offset of the value of the Bellmore Residence against the other assets in the Marital Estate. See Plaintiff's Post-Trial Memorandum, page 33.

[108] See Defendant's Post-Trial Memorandum, page "27".

[109] See Plaintiff's Exhibit "44", in evidence.

[110] See Plaintiff's Exhibit "43", in evidence.

[111] Section 1.01 of the Trust provides ". . . the following format should be used for taking title to assets: P.I. and E.I., Trustees of the I. Family Irrevocable Trust dated November 7, 2017".

[112] See Plaintiff's Post-Trial Memorandum, page "32", ¶ 86.

[113] See Plaintiff's Post-Trial Memorandum, page "32", ¶ 86.

[114] See Plaintiff's Post-Trial Memorandum, page "34", ¶ 94.

[115] See Defendant's Post-Trial Memorandum, pages "14" and "17".

[116] See Defendant's Exhibit "AN", in evidence.

[117] See Defendant's Exhibit "AM", in evidence.

[118] Similarly, the Court notes that on the Biennial Statement for the Business filed with the New York State Department of State (see Defendant's Exhibit "Q", in evidence), the Wife was listed as the Chief Executive Officer of the Business, which, to this Court, further evidences the Husband's intent to transform the character of the Business from separate to marital.

[119] See Plaintiff's Post-Trial Memorandum, pages "25" to "26", ¶ 76.

[120] See Defendant's Exhibit "M", in evidence.

[121] See Defendant's Exhibits "G" and "H", in evidence.

[122] The Court finds credible supporting evidence in the Record, for instance, as the Business bank account at Chase (xxx8161) (see Plaintiff's Exhibit "37", in evidence) reflects, among other things, various checks cut to "cash" with a "p/r" [presumably meaning "payroll"] written for payroll purposes.

[123] See Defendant's Exhibit "R", in evidence.

[124] The Court notes that the date of 01/22/2020 was mere days prior to the commencement of this action.

[125] See Defendant's Post-Trial Memorandum, page "50".

[126] See Plaintiff's Post-Trial Memorandum, page "33", ¶ 89.

[127] See Defendant's Post-Trial Memorandum, page "11".

[128] See Plaintiff's Post-Trial Memorandum, pages "16" through "17", ¶ 47.

[129] See Defendant's Post-Trial Memorandum, pages "20", and "22" through "23". Alternatively, the Wife seeks an award of not less than $100,000 for her share of the "marital asset" component in and to said Lamborghini automobile.

[130] See Defendant's Exhibit "L", in evidence.

[131] See Plaintiff's Post-Trial Memorandum, page "16".

[132] See Plaintiff's Exhibit 94", in evidence.

[133] See Plaintiff's Post-Trial Memorandum, page "17", ¶ 48.

[134] See Defendant's Exhibit "W", in evidence.

[135] See Plaintiff's Post-Trial Memorandum, pages "17" and "38".

[136] In fact, it would make no sense that the Wife would sell the 2015 Bentley automobile for less than fair market value or in an attempt to avoid profit from the sale inasmuch as she, like the Husband, would have been entitled to an equitable share of the profit, if any, in and to same.

[137] See Defendant's Post-Trial Memorandum, page "25".

[138] See Defendant's Exhibit "AH", in evidence.

[139] See Plaintiff's Exhibit "59", in evidence.

[140] See Defendant's Post-Trial Memorandum, page "26".

[141] See Defendant's Exhibit "AH", in evidence.

[142] See Plaintiff's Exhibit "59", in evidence.

[143] See Plaintiff's Exhibits "37" through "40, in evidence. It is worth noting that in order to arrive at the equitable distribution of the parties' bank accounts, the Court had to comb and ferret through 11,309 pages of exhibits.

[144] See Plaintiff's Post-Trial Memorandum, page "36", ¶ 98.

[145] See Plaintiff's Exhibits "89" and "90", in evidence.

[146] The Court has carefully reviewed the many account statements and pictures of checks deposited into this account (see Plaintiff's Exhibit "55", in evidence). The Court would be remiss if it failed to punctuate that many of the pictures of checks reflect that they are made out to "cash", and are in sums, for instance, of $5,000.00, $160.00, $200.00, $110.00, $1,100.00, $2,000.00 and $7,000.00. In fact, there are multiple checks made out to "cash" in the sum of $5,000.00. The Court also notes that many of these checks are dated from April to June, which undercuts the Husband's testimony that some cash was received at the end of the year.

[147] See Plaintiff's Exhibit "55", in evidence, pages 39-40.

[148] See Plaintiff's Exhibit "55", in evidence, page 131.

[149] See Plaintiff's Exhibits "37", "38", "39" and "40", in evidence.

[150] See Plaintiff's Exhibit "37", in evidence, page "2321".

[151] See Plaintiff's Exhibit "39", in evidence, page "2911".

[152] The consolidated account statement also reflects a fourth account, a savings account (xxx9727), an UTMA account, which is addressed in a separate section of this Decision and Order (see infra).

[153] See Plaintiff's Exhibit "40", in evidence, pages "1286" through "1289".

[154] See Plaintiff's Exhibit "40", in evidence, pages "1291" through "1293".

[155] See Defendant's Exhibit "AK", in evidence.

[156] See Defendant's Post-Trial Memorandum, page "33".

[157] See Plaintiff's Post-Trial Memorandum, page "16", ¶ "44".

[158] See August 18, 2022 Transcript.

[159] See August 18, 2022 Transcript, page "23", line "14".

[160] See August 18, 2022 Transcript, page "21", line "12".

[161] See Plaintiff's Exhibits "51" and "52", in evidence.

[162] See Plaintiff's Post-Trial Memorandum, page "16", ¶ "44".

[163] See August 18, 2022 Transcript, page "106" lines 15" through "16".

[164] See August 18, 2022 Transcript, page "123", line "22".

[165] See August 18, 2022 Transcript, page "22", lines "19" through "20".

[166] See Plaintiff's Post-Trial Memorandum, page "39".

[167] See Plaintiff's Post-Trial Memorandum, pages "38" through "39', ¶ "108".

[168] See Plaintiff's Exhibits "77" and "78", in evidence.

[169] See Plaintiff's Post Trial Memorandum, pages "36" through "37", ¶¶ "98" and "99".

[170] See Defendant's Post-Trial Memorandum, pages "34".

[171] See Plaintiff's Exhibit "31", in evidence.

[172] See Plaintiff's Exhibit "34", in evidence.

[173] See Defendant's Exhibit "O", in evidence.

[174] See Defendant's Exhibit "A", in evidence.

[175] See Defendant's Exhibit "A", in evidence, page "15".

[176] See Defendant's Exhibit "AO", in evidence.

[177] There is no evidence in this Record that the Husband ever filed a tax return in 2019 for himself.

[178] See Plaintiff's Exhibit "11", in evidence.

[179] See Defendant's Exhibit "A", in evidence, page "15".

[180] See Plaintiff's Exhibit "13", in evidence.

[181] See Plaintiff's Exhibit "3", in evidence.

[182] See Plaintiff's Exhibit "93", in evidence.

[183] See Plaintiff's Exhibit "26", in evidence.

[184] See Defendant's Exhibit "L", in evidence.

[185] See Plaintiff's Exhibit "28", in evidence.

[186] See Plaintiff's Exhibit "93", in evidence.

[187] See Plaintiff's Exhibit "26", in evidence.

[188] See Plaintiff's Exhibit "28", in evidence.

[189] The Husband could have represented his marital status as "married filing separately", but, instead, voluntarily elected to file his return as "single", making a deliberate misrepresentation to the relevant taxing authorities.

[190] See Plaintiff's Exhibit "29", in evidence.

[191] See Defendant's Exhibit "H", in evidence.

[192] See Wife's Post-Trial Memorandum, page "44".

[193] See Plaintiff's Exhibit "54", in evidence, page "414".

[194] See Defendant's Post-Trial Memorandum page "41".

[195] See Wife's Post-Trial Memorandum, page "45".

[196] See Defendant's Exhibit "AB", in evidence.

[197] Which would ostensibly result in four (4) years of retroactive support and eight (8) years of prospective support.

[198] The Court, in this respect, finds many of the Wife's stated expenses to be "inflated", for which she failed to introduce evidence of at trial.

[199] Which was set forth in the Wife's Verified Answer and Counterclaim. See Plaintiff's Exhibit "2", in evidence.

[200] The duration of seventy-eight (78) months is intended to include support awarded retroactively and prospective support.

[201] $11,000.00 representing spousal maintenance arrears from February 27, 2020 through December 27, 2020 ($1,000.00 × 11 [months in 2020]) + $12,000.00 representing spousal maintenance arrears from January 27, 2021 through December 27, 2021 ($1,000.00 × 12 [months in 2021]) + $12,000.00 representing spousal maintenance arrears from January 27, 2022 through December 27, 2022 ($1,000.00 × 12 [months in 2022]) + $12,000.00 representing spousal maintenance arrears from January 27, 2023 through December 27, 2023 ($1,000.00 × 12 [months in 2023]) + $7,000.00 representing spousal maintenance arrears from January 27, 2024 through July 27, 2024 ($1,000.00 × 7 [months in 2024]) = $54,000.00.

[202] The following papers have been read on these applications:

Plaintiff's Affirmation in Support of Request for Counsel Fees and Exhibits (NYSCEF Document Nos.: 131-136). . . . . . x

Defendant's Affirmation in Support of Legal Fees and Exhibits (NYSCEF Document Nos.: 137-143). . . . . x.

[203] In accordance with Maroney v. Maroney, 208 AD2d 915 (2d Dept. 1994).