DECISION AND ORDERAFTER TRIALI. BACKGROUND The parties in the above referenced matter were married on March 22, 2003. The infant issue of the marriage are as follows: K.M. born December 31, 2004 and R.M. born August 31, 2007. Plaintiff commenced this action for divorce against Defendant by filing a Summons with Notice on December 13, 2016. The Preliminary Conference was conducted on March 22, 2017. Plaintiff was represented by Alison Leigh Epilone, Esq. of Feldman, Kramer and Monaco, P.C. and Defendant was represented by Catherine Romano, Esq. and Robert G. Venturo, Esq. of the Law Offices of Robert G. Venturo.Pursuant to the Preliminary Conference Order, the issue of fault was resolved as the parties agreed that Plaintiff would proceed on an uncontested basis on the grounds that the parties’ marriage had broken down irretrievably for a period of at least six months in accordance with Domestic Relations Law (hereinafter, “DRL”) section 170(7). The judgment of divorce was held in abeyance until all ancillary issues were resolved on consent of the parties or otherwise adjudicated by this Court.The day before this action commenced, to wit, December 12, 2016, Plaintiff filed a petition pursuant to Article 8 of the Family Court Act. She obtained a stay temporary order of protection against Defendant on her behalf as well as the infant issue in Family Court (Spinner, J.) under docket O-20447-16. Defendant was excluded from the martial residence. On consent of the parties and by order issued on March 22, 2017, this Court transferred the Family Court proceeding to Supreme Court pursuant to Article 6 Section 19 of the New York State Constitution to be joined and tried with the instant action. See, Civil Practice Law and Rules Section 601. Initially, the parties were unable to settle any substantive issue in the case. Heather Fig, Esq. was assigned to represent the infant issue.The litigation became increasingly contentious and protracted. Notwithstanding the extraordinary efforts put forth by the Attorneys and the Court, the parties were ultimately unable to resolve the any of the ancillary issues in this case. Defendant failed to file a Statement of Net Worth in accordance with 22 NYCRR §202.16(f)(1). Plaintiff made intermittent requests for financial documentation from Defendant throughout these proceedings but to no avail.On November 27, 2017 Plaintiff moved to preclude Defendant from submitting any financial evidence at trial based upon his failure to comply with the Preliminary Conference order and her repeated discovery requests. This Court directed Defendant to produce the requested documentation within 10 days from said date, to wit, December 7, 2017, and warned him that his failure to comply would result in him being precluded from presenting any financial evidence at trial. Defendant again failed to comply.The law is clear that there is compulsory financial disclosure in a matrimonial action. See, DRL §236 [B] 4(a). As a result of Defendant’s failure to comply with the financial disclosure required of him in this proceeding, Plaintiff’s application to preclude Defendant from submitting any financial documentation at trial was ultimately granted.II. THE TRIALThe trial of this matter commenced on December 20, 2017 and continued on eight non-consecutive days until its conclusion on May 7, 2018. During the course of the trial, Defendant discharged, rehired and ultimately discharged his attorney on April 30, 2018. However, Defendant remained represented until resolution of custody and the family offense matter. He was given a brief adjournment to obtain counsel for the financial aspects of this case. His requests for additional adjournments for counsel were denied.Plaintiff’s testimony began with the events that transpired on December 11, 2016 which resulted in her filing the underlying family offense petition. She testified in substance that Defendant had a history of alcohol abuse. Defendant, who had been drinking that day, became increasingly agitated and began yelling at the children who had been playing. Although Plaintiff attempted to diffuse the situation, things quickly escalated. Defendant became increasingly belligerent and aggressive toward Plaintiff and the children.Plaintiff made an audio recording (Plaintiff’s Exhibit 10) and K.M. made a video recording (Plaintiff’s Exhibit 9) of portions of the December 11, 2016 incident. Said recordings were extremely disturbing. Plaintiff continued her testimony with vivid descriptions of several incidents of domestic violence that occurred throughout the marriage. Plaintiff submitted photographs of injuries she sustained during separate incidents (Plaintiff’s Exhibits 4, 5, 7, 24) as well as a Suffolk County Police Department Domestic Incident Report (Plaintiff’s Exhibit 28). Additionally, Plaintiff submitted the family offense petition (Plaintiff’s Exhibit 22), the Family Court Order of Protection (Court Exhibit III) and a petition alleging that Defendant had violated the Order of Protection (Plaintiff’s Exhibit 23) for the Court’s review.Plaintiff’s credible testimony and evidence demonstrated a pervasive pattern of alcohol abuse and domestic violence perpetrated by Defendant against Plaintiff throughout the parties’ marriage. On February 7, 2018, the parties ultimately resolved the family offense petition as well as the issues of custody, relocation, and parenting time by oral stipulation. As such, the focus of the trial became the outstanding financial issues.Plaintiff testified in substance to the following relevant information. She has a Bachelor’s Degree in Marketing. When the parties first married, she was employed as a marketing coordinator for an engineering firm and had earned $34,000.00 annually. On or about 2004, she began working in the same capacity for a different engineering firm and had earned $54,000.00 annually. Once their eldest child was born, Plaintiff agreed that she would not return to work in order to care for their child. The Court notes that Plaintiff further testified that she broke her pelvis while giving birth. It took her approximately 5 weeks to recover. During that time, Defendant was of little assistance to her. Instead Plaintiff’s parents, who resided in Atlanta, flew to New York on alternating weeks to help with caring for the parties’ son.The parties’ second child was born in 2007. On or about 2012 when said child was of grade school age, Plaintiff returned to the work force on a part-time basis as a coach for a company, to wit, Jump Bunch. She testified that her annual earnings each year from 2012 to the present did not exceed approximately $10,000.00. In addition, Plaintiff baked goods for family and friends earning less than $1000.00 annually. With respect to her degree and prior career, she further testified that the marketing industry has changed substantially over the last 13 years. Her intention is to return to the work force on a full time basis once she settles in Atlanta1. Therefore, she would require time to update her skills in order to pursue such employment opportunities.Plaintiff then testified to Defendant’s educational background and work experience. He holds a Bachelor’s Degree in Finance. At the time the parties married, Defendant was employed by a company, to wit, Rockdale Securities and had earned between $200,000.00 to $250,000.00 annually. During that time, Defendant also worked as a bouncer for Farrell’s Pub in West Islip and had earned $200.00 to $300.00 weekly. Although Plaintiff surmised that Defendant’s average income was $90, 000.00 annually, she later attributed this to poor math skills and nerves. Plaintiff further testified that in 2012, Rockdale Securities closed due to insider trading. Defendant was not charged. Thereafter, Defendant worked briefly at Primerica and an insurance company but was otherwise unemployed until he secured his current position as a Financial Advisor for Chase Bank in 2015.Defendant collected unemployment insurance benefits from 2012 to some time in 2013. Plaintiff was unaware whether Defendant generated income from 2013 to 2015. Household bills were being paid from the parties’ joint savings account had which at that time had a balance of over $100,000.00. Plaintiff was unaware if Defendant borrowed money from anyone during that time.Although Plaintiff did not know many details about Defendant’s current compensation structure, she testified that Defendant received a salary plus commission. Plaintiff’s Exhibit 19, consisting of Defendant’s employment records, established that Defendant is paid a base salary plus a draw. Said records also revealed that Defendant consistently received a draw of $1075.00 per pay period until his December 15, 2016 check. As of that date, (immediately after the commencement date of the action), Defendant ceased receiving a draw payment.Plaintiff testified that Defendant worked sporadically. When asked to elaborate, she described Defendant as having “bankers hours”, (meaning 9:00 a.m. to 5:00 p.m.). However, there were many occasions that Defendant would not leave for work until sometime between 10:00 a.m. and 11:00 a.m., and would return home at approximately 4:30 p.m. Plaintiff stated this was due to Defendant’s excessive alcohol consumption the night before work and/or during the day. Plaintiff further testified that Defendant’s superior at work was also his personal friend.With respect to the management of their finances during the marriage, Plaintiff testified in substance that Defendant would deposit his earnings into the parties’ joint checking account. Plaintiff would then be responsible for payment of the household bills from said account. The money she earned was spent directly on the children as well as other incidentals.Upon commencement of the instant action Plaintiff alleged that Defendant discontinued depositing his earnings into their joint checking account. As a result, household bills went unpaid. She had two credit cards at commencement, to wit, an American Express card with a balance of $531.17 (Plaintiff’s Exhibit 27) and a Chase credit card with a balance of $2894.38 (Plaintiff’s Exhibit 26). She subsequently incurred credit card debt of approximately $10,000.00 in effort to meet expenses for the children and the household. She also applied for the Supplemental Nutrition Assistance Program through the government to assist her in purchasing food for the children. Plaintiff emphasized that Defendant, who had been excluded from the marital residence as a result of the Family Court Order of Protection, had been residing with family members and incurred no living expenses as a result.The marital residence, located at 350 Wyona Avenue, Lindenhurst, New York, was purchased by the parties in February of 2004. Plaintiff testified that both parties are on the deed to the residence as well as the mortgage, which has an outstanding balance of approximately $157,000.00. On April 12, 2018, the parties entered into a stipulation (which was so-ordered by this Court) wherein the residence was to be listed for sale and the net proceeds would be held in escrow by Defendant’s Counsel. Said stipulation was subsequently modified on the record on April 30, 2018 such that the net proceeds from the sale would be held in escrow by Plaintiff’s Counsel.In addition to their joint checking account that had been utilized to pay household expenses, Plaintiff made reference to an IRA and brokerage account with Charles Schwab that was opened during the marriage. Plaintiff alleged that no deposits were made into these accounts subsequent to the date the matrimonial action commenced. Said accounts (Plaintiff’s Exhibit 21) were the subject of a contempt application brought by Plaintiff during the trial on March 12, 2018. Plaintiff alleged that records subpoenaed for trial revealed that Defendant had removed all of the monies in said brokerage account and money from the IRA after commencement of this action in violation of automatic orders (see, 22 NYCRR §202.16-a (c)). Plaintiff included a copy of the Notice of Automatic Orders and an Affidavit of Service as part of Plaintiff’s Exhibit 7.2Plaintiff testified that the following with withdrawals were made by Defendant without her knowledge or consent (evidenced by Plaintiff’s Exhibit 21) as well as letters of authorization signed by Defendant (attached as Exhibits to her contempt application): from the brokerage account: December 16, 2016: $5,445.00; February 17, 2017 $5,543.00; April 17, 2017 $10,795.00; October 16, 2017 $103,703.30; and from the IRA: November 2, 2017 $6,700.00. No portion of these funds had been deposited into the parties’ joint checking account or Defendant’s separate checking account as evidenced by their joint Chase account statement (Plaintiff’s Exhibit 30). Through trial subpeonas, Plaintiff learned that Defendant’s current employer has a defined benefit plan and that he contributed toward same during their marriage (Plaintiff’s Exhibit 19).Plaintiff also alleged that she had never made any automatic teller machine (“ATM”) withdrawals from their joint Chase checking account. She further testified that any ATM withdrawals would have been made by Defendant. For example, Plaintiff’s Exhibit 30 reflected an ATM withdrawal of $505.99 on August 21, 2017 at an address revealed to be Foxwoods Casino.The Court received in evidence statements from Plaintiff’s Wells Fargo accounts as Plaintiff’s Exhibit 29. Some of these accounts were set up by her mother, brother and Defendant. The retirement account had been set up and funded by her mother. Plaintiff testified in substance that she had not made any deposits into these accounts since the date of marriage and that Defendant would not permit her to make any deposits into her retirement account, claiming that she would get his account anyway. After commencement of the action, Plaintiff opened a savings account with Bank of America to facilitate the direct deposit of her earnings from her employment.With respect to the remaining assets, the parties own two vehicles, to wit at 2005 Honda Pilot operated by Plaintiff and a 2008 Toyota Prius operated by Defendant. The parties also own a Time Share in Hawaii that has maintenance arrears. The infant issue have UTMA/UGMA accounts wherein Plaintiff is the named custodian and stock wherein Defendant is named custodian. Plaintiff also has a personal checking account with Georgia’s Own Credit Union.Defendant cross-examined Plaintiff. However, said examination lacked any probative value. Throughout her testimony on direct and cross-examination, Plaintiff was visibly upset, shaken and extremely uneasy. This was especially evident during that portion of her testimony involving the allegations of domestic violence. Defendant’s behavior and demeanor throughout the trial was remarkable in that he had to be admonished several times for smirking and laughing out loud at Plaintiff during her testimony. He also referred to Plaintiff as “Kim”, a name which Defendant was purportedly aware that Plaintiff dislikes immensely as she prefers to be called “Kimberly”. Overall, Defendant’s behavior appeared to have an adverse impact on Plaintiff during her testimony. Notwithstanding same however, Plaintiff testimony was compelling and most importantly credible.III. FINDINGS(i) GroundsPlaintiff is entitled to a judgment of divorce on the grounds of an irretrievable breakdown pursuant to DRL §170(7).(ii) Custody/Visitation and Family Offense PetitionPlaintiff is awarded sole custody of the infant issue and Defendant’s shall be awarded parenting access in accordance with the parties’ stipulation set forth on the record on February 7, 2018, which is incorporated by reference into this decision. The Family offense petition was also settled pursuant to said stipulation.(iii) Support Obligations(a) Income of the PartiesPlaintiff testified credibly regarding Defendant’s educational background, work experience and earning’s history. He holds a Bachelor’s Degree in Finance and has worked in the financial industry since 2003. During their marriage, Defendant had earned $200,000.00 to $250,000.00 annually. He also earned $250.00 to $300.00 weekly as a bouncer. During Defendant’s approximate 2 year period of of unemployment, the parties were able to meeting the household expenses and live off of their savings of over $100,000.00. Once Defendant secured employment as a Financial Advisor at Chase, it is clear from Plaintiff’s testimony that his alcohol use affected his work hours. Also of particular note was Plaintiff’s Exhibit 19. Said Exhibit reflected Defendant’s compensation structure of a base salary plus commission, and revealed that he stopped earning any commission shortly after the commencement of this action. Plaintiff emphasized that Defendant’s supervisor at work is his personal friend.In sum, the Court finds that any decrease in Defendant’s earning capacity as well as his current earnings appears to be occasioned by his own conduct and an effort to avoid his support obligations. The Court finds that there is a sufficient basis in this record to impute income to Defendant. [See, DRL §§236[B] (5-a)(b)(4); 236[B] (6)(b)(3)(a); 240 (1-b)(5)(v)]. This Court relies upon Defendant’s educational background, work history, prior earnings and earning potential in reaching the determination that the sum of $150,000.00 in W-2 earnings and cash income of $10,000.00 (based upon his work as a bouncer during the marriage) shall be imputed to Defendant for calculation purposes.Plaintiff holds a Bachelor’s Degree in Marketing. She had worked in the marketing industry and last earned $54,000.00 annually in 2004 prior to the birth of the parties’ first child. She and Defendant agreed that she would stay home to raise their children. Plaintiff did not work outside of the home until 2012 when she secured part-time employment as a coach for Jump Bunch. Plaintiff also testified to receiving less than $1000.00 annually for baking cases for family and friends.In 2016, Plaintiff earned $7,320.07 from Jump Bunch as reflected by her W-2 (Plaintiff’s Exhibit 25). In 2017, Plaintiff earned $9,992.00 from Jump Bunch as reflected by her 2017 W-2 (Plaintiff’s Exhibit 2). The Court shall attribute an additional cash income of $700.00 to Plaintiff for calculation purposes.(b) Temporary MaintenancePlaintiff made an application for temporary maintenance by Order to Show Cause dated May 23, 2017. Based upon the facts as they existed at the time, the application was deferred to the trial court. The applicable statute based upon the commencement date of this action is DRL §236 [B] effective October 25, 2015 which requires the Court to determine the parties’ respective annual incomes and apply the statutory formula to calculate the presumptively correct amount of temporary maintenance.Plaintiff’s adjusted gross income, after deductions for FICA from her 2016 W-2 wages of $7,320.07 is as follows: Social Security $453.85 and Medicare $106.14, is $6,760.08, plus her cash income of $700.00 totals $7,460.08. Defendant’s adjusted gross income, after deductions for FICA from his imputed W-2 wages of $150,000.00 is as follows: Social Security $7886.40 and Medicare $2175.00 is $139,938.60, plus his imputed cash income of $10,000.00 for a total of $149,938.60.Accordingly, the guideline amount of temporary maintenance up to the income of cap of $178,000 (as of the time of the application) in accordance with Domestic Relations Law §236 B (5-a) (c) (1) is as follows:Plaintiff/Payee: $7,460.08 (annually)Defendant/Payor: $149,938.60 (annually)Income of the Payor for support purposes up to the income cap of $178,000:Plaintiff/Payor: $149,938.60Calculations:Calculation A: 20 percent of Payor’s income minus 25 percent of Payee’s income $29,987.72-$1,865.02 = $28,122.70Calculation A Amount: $28,122.70($2,343.56 monthly)Calculation B: 40 percent of the combined income minus Payee’s income $62,959.51-$7,460.08 = $55,499.43 Calculation B Amount: $55,499.43 ($4,624.95 monthly)Calculation B Amount: $55,499.43($4,624.95 monthly)The guideline amount is the lesser of Calculation A and Calculation B or zero if Calculation B is less that or equal to zero. In the matter sub judice, the guideline amount would be $2,343.56 monthly. Defendant’s income does not exceed the $178,000.00 cap. Although the Court may deviate from the presumptive amount of maintenance pursuant to the factors set forth in DRL §236(B)(5-a)(h)(1), the Court finds no basis warranting a deviation at this time.Said sum shall be retroactive to the date of Plaintiff’s application, to wit, May 23, 2017 through October 23, 2018, a total of 17 months as the post divorce maintenance award shall be effective as of November 1, 2018. See, Kim v. Schiller, 112 AD3d 671 (2d Dept 2013). Therefore, the total sum due and owing Plaintiff for temporary maintenance is $39,840.52.(c) Post-Divorce MaintenancePlaintiff has requested an award of post-divorce maintenance. Pursuant to DRL §236[B](6)(a), said request shall be retroactive to the date of her initial request, to wit, December 13, 2016 as reflected in the Summons with Notice (Court Exhibit VII). This award shall be for the period commencing November 1, 2018 prospectively and will encompass the period between December 13, 2016 through May 22, 2017, the period immediately preceding Plaintiff’s pendente lite application.Plaintiff’s adjusted gross income, after deductions for FICA from her 2017 W-2 wages of $9,992.00 is as follows: Social Security $619.50 and Medicare $144.88, is $9,227.62, plus her cash income of $700.00 totals $9927.62. Defendant’s adjusted gross income, after deductions for FICA from his imputed W-2 wages of $150,000.00 is as follows: Social Security $7886.40 and Medicare $2175.00 is $139,938.60, plus his imputed cash income of $10,000.00 for a total of $149,938.60.Accordingly, the guideline amount of post-divorce maintenance up to the income of cap of $178,000 (as of the time of the application) in accordance with Domestic Relations Law §236 [B](6)(c)(1) is as follows:Plaintiff/Payee: $9,927.62 (annually)Defendant/Payor: $149,938.60 (annually)Income of the Payor for support purposes up to the income cap of $178,000:Plaintiff/Payor: $149,938.60Calculations:Calculation A: 20 percent of Payor’s income minus 25 percent of Payee’s income$29,987.72-$2481.91 = $27,505.81Calculation A Amount: $27,505.81 ($2,292.15 monthly)Calculation B: 40 percent of the combined income minus Payee’s income$63,946.49-$9,927.62 = $54,018.87Calculation B Amount: $54,018.87 ($4,501.57 monthly)The guideline amount is the lesser of Calculation A and Calculation B or zero if Calculation B is less that or equal to zero. In the matter subjudice, the guideline amount would be $2,292.15 monthly. With respect to duration, the Court has carefully considered the advisory schedule set forth in DRL §236 [B](6)(f)(1) and the factors set forth in DRL §236[B](6)(e)(1).The parties were married for 13 years and 9 months as of the commencement date of this action. Both parties are now 42 years of age and appear to be in good health. Although Plaintiff worked in the marketing industry at the beginning of the marriage, after the birth of their first son she agreed to become a homemaker. As such, she has been had been out of the workforce for approximately 13 years before securing part-time employment as a coach. The parties had enjoyed a middle class lifestyle prior to commencement of this action.Based upon the parties’ February 7, 2018 oral stipulation, Plaintiff has sole custody of their children and has now relocated to Georgia. Defendant does not have parenting access to the children at this time. Plaintiff will need time to update her training and skills to re-enter the workforce on a full-time basis. Additionally, she will need time to secure employment. The Court also considered the acts of domestic violence perpetrated by Defendant against Plaintiff, including the fact that there is a full stay away order of protection on behalf of Plaintiff and the children.Based upon the foregoing, the Court shall award Plaintiff post-judgment maintenance in the sum of $2,292.15 per month commencing November 1, 2018 and continuing for a four (4) year period. The retroactive award encompassing the period between December 13, 2016 through May 22, 2017 (5 months and 10 days) shall be $12,224.80.(d) Temporary Child SupportPlaintiff made an application for temporary child support in accordance with the Child Support Standards Act by Order to Show Cause dated May 23, 2017 which was deferred to the trial court. In accordance with DRL §§240 (1-b)(b) and (1-b)(c) the calculations are as follows:Plaintiff’s adjusted gross income, after deductions for FICA from her 2016 W-2 wages of $7,320.17 is as follows: Social Security $453.85 and Medicare $106.14, is $6,760.18, plus her cash income of $700.00 equals $7,460.18. Added to her income is the temporary maintenance obligation of $28,122.72 annually for a total of $35,582.90.Defendant’s adjusted gross income, after deductions for FICA from his imputed W-2 wages of $150,000.00 is as follows: Social Security $7886.40 and Medicare $2175.00 is $139,938.60, plus his imputed cash income of $10,000.00 which equals $149,938.60 minus maintenance of $28,122.72 for a total of $121,815.92.The combined parental income is $157,398.78. Applying 25 percent to the combined parental income up to the applicable statutory cap of $143,000.00 yields a parental support obligation of $35,750. Defendant’s pro-rata share of said sum (77.39 percent) is $27,666.93 and Plaintiff’s pro-rata share of said sum (22.61 percent) is $8,083.07. The combined parental income over the statutory cap is $14,398.78. Applying the applicable child support percentage of 25 percent to said sum yields a parental support obligation of $3,599.69. Defendant’s pro-rata share of same is $2,785.80 and Plaintiff’s pro-rata share is $813.89.Therefore, Defendant’s temporary child support obligation on annual basis is $30,452.73 or $2537.72 monthly. Said sum shall be retroactive to the date of Plaintiff’s application, to wit, May 23, 2017 [see Schiller, Id.; DRL §240 (1)(j)] through October 23, 2018. The retroactive balance for this 17 month period is $43,141.24. Defendant shall be responsible for his pro-rata share of the statutory add-on expenses.(e) Post-Divorce Child SupportPlaintiff has requested an award of post-divorce child support. Pursuant to DRL §240(1)(j), said request shall be retroactive to the date of her initial request, to wit, December 13, 2016 as reflected in the Summons with Notice (Court Exhibit VII). See also, Schiller, Id. This award shall be for the period commencing November 1, 2018 prospectively and will also encompass the period between December 13, 2016 through May 22, 2017, the period immediately preceding Plaintiff’s pendente lite application.Plaintiff’s adjusted gross income, after deductions for FICA from her 2017 W-2 wages of $9,992.00 is as follows: Social Security $619.50 and Medicare $144.88, is $9,227.62, plus her cash income of $700.00 totals $9,927.62 plus maintenance of $27,505.80 annually for a total of $37,497.80.Defendant’s adjusted gross income, after deductions for FICA from his imputed W-2 wages of $150,000.00 is as follows: Social Security $7886.40 and Medicare $2175.00, is $139,938.60, plus his imputed cash income of $10,000.00 which equals $149,938.60 minus maintenance of $27,505.80 for a total of $122,432.80.The combined parental income is $159,930.60. Applying 25 percent to the combined parental income up to the applicable statutory cap of $148,000.00 yields a parental support obligation of $37,000.00. Defendant’s pro-rata share of said sum (76.55 percent) is $28,323.50 and Plaintiff’s pro-rata share of said sum (23.45 percent) is $8,676.50. The combined parental income over the statutory cap is $11,930.60. Applying the applicable child support percentage of 25 percent to said sum yields a parental support obligation of $2,982.65. Defendant’s pro-rata share of same is $2,283.22 and Plaintiff’s pro-rata share is $699.43.Therefore, Defendant’s post-divorce child support obligation on annual basis is $30,606.72 or $2550.56 monthly. The retroactive balance due Plaintiff from the date of Plaintiff’s application, to wit, December 13, 2016 through May 22, 2017 (5 months and 10 days), shall be $13,602.97. Defendant shall be responsible for his pro-rata share of the statutory add-on expenses and shall be responsible for health insurance coverage for the infant issue to the extent that said coverage is available through his employment and geographically accessible to Plaintiff.(iv) Pendente Lite Carrying Charges, Arrears and CreditsThe marital residence, purchased after the date of marriage, is a marital asset. As such, both parties bear responsibility with respect to the maintenance of same during the pendency of the action. See e.g., Judge v. Judge, 48 AD3d 424 (2d Dept 2008); Goldman v. Goldman, 131 AD3d 1107 (2d Dept 2015); Brinkman v. Brinkman, 152 AD3d 637 (2d Dept 2017).Plaintiff’s testimony established that Defendant paid 100 percent of the mortgage, taxes, and homeowner’s insurance, although said payments were often made late. Each party has a 50 percent responsibility for these expenses during these proceedings. Accordingly, Defendant is entitled to a credit for 50 percent of the payments made on the wife’s behalf for said expenses. Annexed to Plaintiff’s Order to Show Cause filed on May 23, 2017 is her first Statement of Net Worth dated March 21, 2017. At trial, Plaintiff submitted an updated Statement of Net Worth as Plaintiff’s Exhibit 1. These documents reflected that the amount for the mortgage, taxes and homeowner’s insurance changed during the pendency of this case from $3038.00 monthly to $2,989.03 monthly.Since the evidence elicited at trial did not establish the exact date of this change, this Court shall take the average of said payments, to wit, $3,013.52 monthly for crediting purposes. In her summation papers, Plaintiff conceded that Defendant made payments for the mortgage, taxes and homeowner’s insurance from the date of commencement of this action, to wit, December 13, 2016 through May 1, 2018 (16 months and 18 days). Thus, total payments during this time period would amount to $50,024.43. Defendant is entitled to a credit of half this sum, to wit $25,012.22 as against his arrears, which is an amount equal to Plaintiff’s 50 percent responsibility toward the mortgage, taxes and homeowner’s insurance. Defendant is granted leave to apply for additional credit due him for mortgage, taxes and homeowner’s insurance payments actually made by him commencing June 1, 2018 until the date the marital residence has been sold.Plaintiff further acknowledged in her summation papers that Defendant is entitled to a credit against his child support obligation for a portion of his 50 percent responsibility of the payments he made toward the mortgage, taxes and homeowner’s insurance so as to avoid a double shelter allowance, citing, Higgins v. Higgins, 50 AD3d 852 (2d Dept 2008) and Iacono v. Iacono, 145 AD3d 972 (2d Dept 2016). Said authorities defined the basic child support obligation as consisting of food, shelter and clothing.Plaintiff also conceded that one-third of Defendant’s child support obligation accounts for shelter. She has therefore requested that one-third of her applications for temporary and post-divorce child support arrears should reduced to reflect same. Plaintiff’s request is granted to the extent that the total basic child support arrears due her, to wit, $56,744.21 shall be reduced by 33.33 percent for a credit of $18,912.84 due Defendant.The total amount of maintenance and child support arrears due and owing to Plaintiff is $108,809.53, which consists of the following:Temporary Maintenance: $39,840.52Post-Divorce Maintenance: $12,224.80Temporary Child Support: $43,141.24Post-Divorce Maintenance: $13,602.97Defendant is entitled to a credit of $43,925.06, consisting of Plaintiff’s 50 percent responsibility for the mortgage, taxes and homeowner’s insurance ($25,012.22) and the one-third child support shelter credit ($18,912.84). Accordingly the total arrears for maintenance and child support due Plaintiff is $64,884.47. Said sum shall be paid from Defendant’s share of the net proceeds from the sale of the marital residence and/or Time Share.(v) Equitable DistributionDRL §236[B](5) in pertinent part mandates that where in a matrimonial action a divorce or dissolution of a marriage is granted, the court shall determine the respective rights of the parties to their separate and marital property, unless the parties have provided for the disposition of said property in an agreement. Separate property is defined in DRL §236[B](1)(d)(1-4), inter alia, as property acquired prior to the marriage. Marital property is broadly defined as all property acquired during the marriage by either party prior and prior to the commencement of the action. See, DRL §238[B](1)(c); Price v. Price, 64 NY2d 8 (1986).In view of the foregoing, the Court finds that the following constitutes marital property subject to equitable distribution:1. The marital residence located at 350 Wyona Avenue, Lindenhurst, New York, 11730;2. Defendant’s Charles Schwab IRA;3. Defendant’s Charles Schwab Brokerage Account;4. Defendant’s Chase Retirement Accounts;5. The 2005 Honda Pilot;6. The children’s accounts;7. The 2008 Toyota Prius;8. The parties’ joint checking/savings accounts with Chase Bank; and9. The Hawaii Time ShareUpon determining that any of the parties’ assets are marital property, the Court is obligated to distribute said property equitably between the parties considering the particular circumstances of the case and the respective parties. In determining the equitable distribution of the property described above, the Court has carefully considered the fourteen factors enumerated in DRL §236[B](5)(d), as well as Plaintiff’s Statement of Proposed Disposition. Defendant failed to file his Statement of Proposed Disposition as required. See, 22 NYCRR §202.16 (h)(1).The Court references its analysis for Plaintiff’s award of post-divorce maintenance at pages 9-10 of this Decision, as those considerations are directly relevant to the equitable distribution of the marital property at issue. In light of those considerations, it is probable that notwithstanding Defendant’s current circumstances, he will continue to have a higher earning capacity than Plaintiff. Additionally, Plaintiff’s credible allegations of domestic violence were afforded significant weight in light of her extensive testimony and evidence as discussed herein.Other factors considered by this Court included Defendant’s withdrawals from his Charles Schwab accounts without Plaintiff’s knowledge or consent and in violation of the automatic orders in this case; his refusal to comply with discovery demands; the protracted and acrimonious nature of this litigation as a result of Defendant’s conduct; his refusal to engage in meaningful settlement negotiations; and his lack of participation and cooperation in this matter all of which resulted in unnecessary and substantial litigation costs for Plaintiff.Accordingly, the martial property shall be distributed as follows:(a) Marital ResidenceOn April 12, 2018 the parties entered in a stipulation which was so-ordered by this Court wherein the marital residence would be sold. The net proceeds from the sale (after payment of the mortgage, fees and customary closing costs) would be help in escrow by Defendant’s Attorney. Plaintiff testified that the marital residence was listed for sale for $419,999.00. Said stipulation was modified on April 30, 2018 in open court to the extent that the net proceeds from the sale would be held in escrow by Plaintiff’s Attorney. Plaintiff shall be awarded 70 percent and Defendant shall be awarded 30 percent of the net proceeds of the sale of the marital residence after payment of the primary mortgage, fees, and customary closing costs.(b) Hawaii Time ShareThe Plaintiff is directed to place the Time Share on the market immediately for sale. The parties shall be equally responsible for any past due maintenance arrears and/or fees. The net proceeds of the sale shall be divided as follows: 70 percent for Plaintiff and 30 percent for Defendant.(c) Defendant’s Charles Schwab IRAPlaintiff shall be awarded 70 percent of the value of this account as of the date of distribution, plus or minus any gains and/or losses, plus an additional $4,690.00 which represents 70 percent of the $6,700.00 withdrawal by Defendant during the pendency of this action. Defendant is directed to cooperate to effectuate the division of the IRA, including but not limited to executing any letters of instruction or cooperating with the preparation of a Qualified Domestic Relations Order if same is necessary.(d) Defendant’s Charles Schwab Brokerage AccountPlaintiff’s uncontroverted evidence established that Defendant unilaterally withdrew a total of $125,486.30 from this account. Plaintiff argued that his withdrawal of $5,445.00 on December 14, 2016 was done in contemplation of this action, and the remaining $120,041.30 was done after commencement of this action and in violation of the automatic orders in this case. As a result, there are no funds remaining in this account. The sum total of $125,486.30 is subject to equitable distribution. Plaintiff shall be awarded70 percent of said sum, to wit, $87,840.21.(e) Defendant’s Chase Retirement AccountsPlaintiff shall be awarded 70 percent of Defendant’s defined contribution plan(s) as of the date of commencement of this action plus or minus any gains and/or losses through the date distribution. In the event Defendant participates in a defined benefit plan, Plaintiff is awarded her share of same (to wit, 70 percent) to be distributed pursuant to the equitable distribution formula established in Majauskas v. Majauskas, 61 NY2d 481 (1984). Defendant is directed to cooperate to effectuate the division of these accounts, including but not limited to executing any letters of instruction or cooperating with the preparation of a Qualified Domestic Relations Order if same is necessary.(f) VehiclesPlaintiff is awarded the 2005 Honda Pilot automobile which shall remain in her name and in her possession. She shall be financially responsible for same. Defendant is awarded the 2008 Toyota Prius automobile which shall remain in his name and in his possession. He shall be financially responsible for same.(g) Children’s AccountsDefendant is awarded any remaining accounts held by him as custodian for the children, including but not limited to the DuPont stock(s). Plaintiff is awarded the children’s UTMA/UGMA accounts wherein she is custodian. The values of same shall belong solely to the children. Neither party is permitted to draw against, transfer, sell and/or access the value of these assets without written notice and consent from the other, said consent not to be unreasonably withheld. Upon written request, account statements shall provided to the requesting party within 14 days of receipt of said request.The following is determined to be Plaintiff’s separate property:1. Plaintiff’s Bank of America accounts;2. Any and all Wells Fargo accounts as detailed in Plaintiff’s Exhibit 29, including but not limited to her IRA;3. Plaintiff’s account with Georgia’s Own Credit Union;4. Plaintiff’s clothing, jewelry and personal effects;5. Plaintiff’s family heirlooms and separate furniture;6. Plaintiff’s post-commencement credit card debt.The following is determined to be Defendant’s separate property:1. Defendant’s Chase checking account in his individual name;2. Defendant’s clothing, jewelry and personal effects.(h) Parties’ joint checking and savings accounts with Chase BankThese accounts shall be divided equally between the parties.(vi) Marital DebtCredit card debt incurred prior to the commencement of a matrimonial action constitutes marital debt and should be equally shared by the parties. Sawin v. Sawin, 128 AD3d 663 (2d Dept 2015)(citations omitted). See also, DRL §238 [B]](1)(c). Plaintiff testified that as of the date of commencement of this action, she had two credits cards to wit, American Express with a balance of $531.17(as evidenced by Plaintiff’s Exhibit 27) and Chase with a balance of $2,894.38 (as evidenced by Plaintiff’s Exhibit 2). Both credit cared were used for family expenses during the marriage.Defendant shall be responsible for 50 percent of the balance from each credit card, which totals $1,712.77. Said sum shall be paid from Defendant’s share of the net proceeds of the sale of the marital residence and/or time share.(vii) PaymentsDefendant’s prospective maintenance obligation of $2,292.15 per month and child support obligation of $2550.56 per month shall begin November 1, 2018.In the event that Defendant’s share of the net proceeds from the sale of the marital residence or time share does not cover the arrears due and owing Plaintiff as specified herein, Defendant shall repay any outstanding balance due at a rate of $1,000.00 per month until such outstanding balance is satisfied, with the exception of the monies that are the subject of Plaintiff’s contempt application which is addressed below.Payments shall be sent by Defendant to Plaintiff at her current residence or such other place she may designate in writing.(viii) ContemptBy Order to Show Cause dated March 12, 2018, Plaintiff requested that this Court find Defendant in civil contempt of court for his violation of the Automatic Orders in this case. In order to find Defendant in civil contempt pursuant to Judiciary Law §753, this Court must find that: (1) a lawful order of the court, clearly expressing an unequivocal mandate was in effect; (2) that the party against whom contempt is sought disobeyed the order; (3) that the party who disobeyed the order had knowledge of its terms, and (4) the movant was prejudiced by the offending conduct. Dalton v. Dalton, 2018 WL 4473038 [citing El-Dehdan v. El-Dehdan, 26 NY3d 19, 29 (2015); McCormick v. Axelrod, 59 NY2d 574, 583 (1983) amended 60 NY2d 652 (1983), Spencer v. Spencer, 159 AD3d 174, 177 (2d Dept 2018)]. Plaintiff must prove these elements by clear and convincing evidence. See, Dalton, Id. (citations omitted).As referenced on page 5 of this Decision, Plaintiff credibly testified that Defendant unilaterally withdraw funds from the Charles Schwab brokerage account and the IRA on four separate occasions totaling $126,741.30. Said withdrawals were without her knowledge or consent (Plaintiff’s Exhibit 21 and Exhibits 5-11 attached to her Order to Show Cause). Plaintiff established that Defendant had been served with the Automatic Orders and the Summons with Notice on December 16, 2017 (Court Exhibit VII). The Automatic Orders state in pertinent part that:(1) Neither party shall sell, transfer, encumber, conceal, assign remove or in any way dispose of, with the consent of the other party in writing, or by order of the court, any property (including but not limited to, real estate, personal property, cash accounts, stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney’s fees in connection with this action.See, DRL §236[B](2)(b)(1-5).Automatic Orders are an unequivocal Court mandate and civil contempt is available in matrimonial actions as a remedy for a violation of same. See, Spencer, Id. Defendant’s knowledge of the Automatic Orders is demonstrated by the Affidavit of Service included as Court Exhibit VII as well as Defendant’s signature on Preliminary Conference Order. Plaintiff further argued that Defendant’s disobedience has defeated, impaired, impeded and prejudiced her rights and remedies in that Defendant removed all of the funds from said accounts which were otherwise subject to equitable distribution. The funds were not deposited into the parties’ joint account that had been utilized to pay household bills. Plaintiff applied for temporary assistance benefits (SNAP) and household bills went unpaid. Plaintiff incurred credit card debt subsequent to the commencement of this action to support herself and the parties’ children. The whereabouts of the funds are unknown.Plaintiff learned of Defendant’s withdrawals subsequent to the commencement of the trial as he failed to comply with her discovery demands. Defendant failed to challenge Plaintiff’s allegations. In light of the foregoing, the Court finds that Plaintiff established by clear and convincing evidence that Defendant violated the Automatic Orders in this case. As such, this Court finds that Defendant is in civil contempt of court.Generally, the party in contempt of court must be given an opportunity to perform the act which is still in his power to perform. See, Wides v. Wides, 96 AD2d 592 (2d Dept 1983). See also, Judiciary Law §774. Under the circumstances of this case, said act would be repayment of Plaintiff’s share of these funds. As such, Defendant’s opportunity to purge shall be by satisfying the repayment of Plaintiff’s share of said funds in full from his share of the net proceeds from the sale of the martial residence and/or the Time Share.The Court notes that during trial Plaintiff withdrew her request for incarceration. Therefore, in the event Defendant fails to purge the contempt finding as described herein, Plaintiff is directed to serve a certified copy of the Judgment of Divorce and this Decision upon the County Clerk along with the filing of an Affidavit indicating that said sums have not been paid to the Plaintiff in accordance herewith pursuant to CPLR §8019 (c). The County Clerk shall be directed to enter and docket a money judgment in favor of Plaintiff and against Defendant in the sum of the outstanding balance due and owing Plaintiff with statutory interest calculated from November 2, 2017, the date of Defendant’s last withdrawal.(ix) Counsel FeesPlaintiff has requested an award of counsel fees in connection with this action. She argued in substance that she had been a homemaker throughout the parties’ approximate 13 year marriage. She resumed employment on a part time basis after the parties’ children became of school age. This has contributed to the disparity in the parties’ incomes and the Defendant having a far superior earning capacity than hers.Plaintiff further argued that she will be required to utilize her equitable distribution to supplement her income and monthly support. The legal fees sought, to wit, $45,725.00, are reasonable under the circumstances of this case given the complexity of the litigation and the positions taken by Defendant. Plaintiff also requested counsel fees in her contempt application. A copy of her Retainer Agreement was annexed to Plaintiff’s Exhibit 1. Plaintiff submitted copies of billing statements (Plaintiff’s Exhibit 31) and her Attorney testified to her credentials, qualifications and billing rate.It is well settled that an award of reasonable counsel fees is within the sound discretion of the trial court. The issue of counsel fees is controlled by the equities and circumstances of each particular case. See, Nicodemus v. Nicodemus, 98 AD3d 305 (2d Dept 2012); See also, DRL §237(a). In addition to finances, the trial court is directed to consider the relative merit of the parties’ positions and if either party engaged in a delay of the proceedings or unnecessary litigation. See, Vitale v. Vitale, 112 AD3d 614 (2d Dept 2013); Brantly v. Brantly. 89 AD3d 881 (2d Dept 2011).The record in this case amply supports the conclusion that Defendant is the monied spouse for purposes of determining an award of counsel fees. In addition to the significant disparity in the parties’ respective incomes and earning capacities, the Court has also considered Defendant’s conduct during the course of the litigation. Said conduct included his failure to comply with Plaintiff’s discovery demands, his failure to negotiate in good faith, his failure to adhere to this Court prior directives with respect to parenting access, and the discharge, re-hiring and ultimate discharge of his counsel during the trial all of which caused unnecessary delays in this matter. Additionally, this Court has considered the nature and complexity of this matter and the legal services provided as a result of same upon review of the billing statements submitted as Plaintiff’s Exhibit 31.The Court has also weighed the equitable distribution in this case and its impact on Plaintiff’s ability to pay her own counsel fees. However, the ability to pay same is but one factor to be considered in awarding counsel fees. See, McCullough v. Falardeau, 184 AD2d 989 (3rd Dept 1992 [citing McCann v. Guteri, 100 AD2d 577 (2d Dept 1984)].Accordingly, Defendant is ordered to pay the sum of $35,000.00 as and for counsel fees. Said award consists of $30,000.00 in connection with the litigation and $5,000.00 in connection with Plaintiff’s contempt application. Said sum shall be payable directly to Plaintiff’s Counsel’s firm and may be satisfied from Defendant’s share of the net proceeds from the sale of the marital residence and/or Time Share.In the event Defendant is unable to satisfying the outstanding balance due, Plaintiff’s firm is directed to serve a certified copy of the Judgment of Divorce and this Decision and Order upon the County Clerk along with the filing of an Affirmation indicating that said sums have not been paid to in accordance herewith pursuant to CPLR §8019 (c). The County Clerk shall be directed to enter and docket a money judgment in favor of Plaintiff’s firm and against Defendant in the sum of the outstanding balance due.The foregoing constitutes the Decision and Order of this Court after Trial.Plaintiff is hereby ordered to submit a Judgment with Findings of Fact and Conclusions of Law on notice to Defendant in accordance with this Decision and Order within 60 Days.Notify Parties.Notify Counsel.Dated: October 11, 2018Central Islip, New York
