DECISION AND ORDER Procedural History The Plaintiff-husband, A.C (hereinafter “husband”) and the Defendant-wife, A.C (hereinafter ‘Wife”) were married on April 9, 2011. There is one child born of the marriage, namely, A, age seven. The husband commenced the within action for divorce on January 5, 2018. At that time, the parties were married for six years and nine months. In April, 2018, once the husband established a separate residence, the parties entered into a “so ordered” Stipulation agreeing to share access to the child. On April 23, 2018 the court appointed Cheryl Mallis, Esq., as the attorney for the child. During pre-trial proceedings, the husband alleged that the wife suffered from an opiate drug addiction which began after the child was born. Alleging concerns for the child’s safety, he filed a pendente lite application seeking custody of the subject child and asking this court to order the wife to submit to hair follicle drug testing. The wife denied the allegation that she abused drugs, claiming she suffered from postpartum depression and alleged the husband abused marijuana and alcohol. She filed a pendente lite application seeking temporary custody, child support and spousal support. On February 14, 2018 the court, in its short Form Order, directed both parties to submit to hair follicle drug testing at TASC. The order further directed TASC to perform an expanded opiate panel. The mother tested positive for opiates and amphetamines for each of the six months in the look back period and marijuana for the first three of the six month period. The husband’s hair follicle test only provided a thirty day look back due to the short length of his hair. His results were negative. In June 2018, the wife submitted to a second hair follicle test with a six month look back. The results were negative for opiates and positive for amphetamines for each of the six months. On October 4, 2018 the parties’ entered into a Stipulation which set forth an interim parenting schedule directing that the wife have parenting time on Mondays and Tuesdays and the husband have Wednesdays and Thursdays and the parties alternate weekends, it further provided that both parties’ request for custody was referred to trial. The stipulation further provided that both parties submit to hair follicle drug testing, and the wife was not to be under the influence of drugs and non prescribed medications during her parenting time. In its pendente lite decision dated November 30, 2018 this court directed the husband to pay the wife $500 per month as basic child support, and 66 percent of child care, health insurance, unreimbursed health expenses, dental, vision, and agreed upon camp, payable through the Child Support Collection Unit. The court further awarded the wife $825 per month in temporary maintenance. This award was subject to reallocation at trial. In light of the allegations made by both parents contesting the fitness of the other, and upon consent of the parties in a “So Ordered” Stipulation dated June 27, 2018, the court issued an order on July 2, 2018 appointing Dr. Anthony Santoro, MD to perform a neutral forensic evaluation. The parties further consented to execute and exchange HIPPA forms for the release of information from all health care professionals requested by either party and the Stipulation further provided that counsel may submit said medical reports into evidence at trial. The trial in this action commenced on March 25, 2019 and continued on April 29, 2019, April 30, 2019, May 1, 2019, May 7, 2019, May 8, 2019, May 9, 2019, May 13, 2019, May 20, 2019, June 3, 2019, June 5, 2019, July 15, 2019, July 18, 2019, July 19, 2019, July 22, 2019, July 25, 2019. The child testified in camera on July 25, 2019. At trial, the wife was represented by Grant and Applebaum, PC, by Patricia Grant, Esq. The husband was represented by Aiello, DiFalco & Gianakos, LLP by Michael DiFalco, Esq. The child was represented by Cheryl Mallis, Esq. During the trial, the wife withdrew her answer and counterclaim and the court granted the husband’s application for a Judgment of Divorce pursuant to DRL §170 (7) and held entry in abeyance until the remaining issues were determined. The following witnesses testified at trial: the husband, the wife, Dr. Santoro, Dr. Kaplan, Mrs. G. (husband’s mother), Nicole Mastreandrea, Lauren Jonke, Dr. Bajpaj, Lisa Fastante, and Michael C. In lieu of closing statements, the parties filed post-trial briefs. It is noted that the wife’s counsel submitted “Supplemental Documents” along with her post trial brief containing documents which were not offered or accepted into evidence at trial. Therefore, the court has not reviewed or considered said inappropriately submitted documents in its determination herein. The parties entered into a Stipulation of Settlement Regarding Equitable Distribution dated July 22, 2019 wherein they resolved issues including but not limited to grounds, health insurance, equitable distribution and marital debt. Therefore, and pursuant to the Stipulation, the unresolved issues for this court’s determination are: (1) custody and parental access of the minor child, (2) child support and statutory ad-ons, (3) spousal maintenance, and (4) counsel fees. Findings of Fact The husband At the time of trial both parties were 37 years of age. The husband testified he met the wife in 2005, they moved in together in 2008, they became engaged in 2010 and married in April, 2011. In September, 2012 the child A was born. The marital residence in Massapequa was purchased by the wife and her sister Amanda prior to the parties’ marriage. After the husband commenced the within action for divorce in 2018, with the financial assistance of his parents, he purchased a home in West Babylon, five miles away from the former marital residence. The husband testified that he considers himself a hands-on father, sharing with the wife the duties and responsibilities of caring for the child such as diaper changes, preparing meals, bedtime rituals, attending school functions, doctor visits and extracurricular activities of the child. Four months after the child was born, the wife returned to work as a speech pathologist at the XX School District. It was at that time that he became concerned that the wife was abusing prescription medication. He testified the wife would regularly come home from work so tired and lethargic she would fall asleep standing up. She admitted to him that she fell asleep while driving home from work in the Spring of 2013 resulting in the first of three car accidents. His concerns grew when he learned that she was taking Vicodin that she “stole” from her parents’ medicine cabinet. He testified the wife admitted to taking between 8-10 pills per day, telling him they were for migraine headaches and leg pain. He wanted her to attend a drug rehabilitation program but she refused. Instead, she took a leave of absence from her job, began to see a specialist and a psychiatrist who prescribed more drugs such as Suboxone, Klonopin and Adderall. He testified that the wife would often sleep during the day and stay awake at night. Her “mood swings” made it difficult to for him to live with her. She appeared tired all the time, lethargic, and often appeared intoxicated and under the influence of drugs. He believed she was abusing opiates. He offered into evidence photographs of the wife sleeping in various rooms in the marital residence and her pharmacy and medical records documenting the numerous and excessive prescription medications issued in her name during the period January 2012 through August 2018. He felt concerned, nervous and anxious and began to take on more responsibilities caring for the child. After he found pills wrapped in napkins and in unmarked bottles in her handbag he began to take more control. He regulated her medication intake by placing her pills in a “lock box,” dispensing the pills to her at his discretion. This created tension, resentment and frequent fighting between the parties. As a result, and despite his stated concerns for the child’s safety, he would often leave the marital residence after the child went to sleep and spend the night at a friend’s house in Smithtown. In December 2017, he received a call from the wife who advised him while on her way to pick up the child from school, in an attempt to avoid an animal on the road, she lost control of her vehicle and crashed her car into a telephone pole. This would be the wife’s second car accident. The car was totaled and the wife suffered injuries to her hand and chest. When he arrived at the hospital she asked him to leave. He testified that during the days leading up to this accident, he and the wife were discussing a divorce and believes this may have been a way to manipulate him to change his mind about commencing a divorce action. Later that month the parties attempted to reconcile. He admitted to having sexual relations with the wife but denied her allegations that he raped her explaining that she “threw herself at me sexually” and it was consensual. After that accusation, in January 2018, he filed for divorce. In February 2018, the husband filed an emergency order to show cause asserting that the wife was abusing prescription narcotic medication and requested the wife be ordered to submit to hair follicle drug testing. The court directed both parties to submit to such testing with a six month look back period, however, since the husband cut his hair too short the look back period for his results were limited to the prior month and were negative. It is noted that the wife submitted to the hair follicle testing one week after the husband and despite the court’s directive, she colored her hair. It is further noted that the wife failed to respond to calls from TASC on June 27, 2018, July 2, 2018, July 3, 2018 and July 19, 2018 regarding the court ordered random urinalysis drug testing. Notwithstanding such delays and non-compliance, the wife’s drug test results were positive for opiates, marijuana and amphetamines. The third car accident involving the wife took place in March 2018 after the parties attended a conference in court. The husband alleged she was driving with the child in the vehicle and “clipped” the back end of a truck. As a result, on May 23, 2018, this court granted the husband’s application for an order prohibiting the wife from driving with the child. Her driving privileges were later restored after she received negative hair follicle drug testing (except for prescription medications). He believes an inpatient drug treatment program would address and treat her history of what he describes as drug dependency and abuse. He described living with the wife in the marital residence prior to and after he filed for divorce as “stressful” and “unhealthy” resulting in almost daily arguments. On several occasions he would leave the home and return the next day. He finally moved out of the marital residence in April, 2018. Since that time, the parties entered into several temporary parenting stipulations providing for equal and unsupervised access to the child. The husband did not deny that he often used marijuana and alcohol. However, he denied the wife’s allegation that he smoked marijuana 5 times per day, everyday, claiming instead that both he and the wife smoked marijuana approximately 5-6 times per week but never inside the house and never in the presence of the child. Further, although the “look back” period from the husband’s hair follicle drug test was only one month, he admitted at trial that if the look back period went as far back as 6 months, he would have tested positive for marijuana. He admitted to driving his car under the influence of marijuana, drinking after work and smoking marijuana alone and with the wife until he stopped in November 2017, just before he commenced the within action for divorce. The husband testified to an incident where, after attending a wedding in Massachusetts, he was pulled over for driving under the influence, although he was never criminally charged. The husband also admitted to his own shortcomings regarding his relationship with the wife. He did not deny calling the wife a “raging pill head” and conceded that during the marriage he may have been sending “mixed messages” to her by claiming to be concerned about her drug use, yet he would often ask her to smoke and drink with him. The husband has a Masters Degree in School Psychology and is a licensed New York State School Psychologist and a Behavioral Analyst. He has been employed for the past seven years as a tenured school psychologist at XX School in XX, where he earns approximately $97,000 per year. If awarded custody, he would enroll the child in XX Elementary School in West Babylon. He testified the school hours are from 8:45am until 2:15pm and he would therefore require morning child care as his work hours are from 7:40am to 2:15pm. In addition, during the summer months he works part time detailing automobiles and earns approximately $400-$700 per year. His tax return in evidence show that in 2018 his gross income was $89,621 and in 2017 his gross income was $89,430. The husband regularly deposited his paycheck into the parties’ joint bank account from which the household bills were paid. He testified that the wife did not deposit her paycheck into the joint account and made limited and infrequent contributions to household expenses such as paying for the clothing for the child. He disputes the wife’s alleged income of $31,900 and believes that as a speech pathologist, she has the ability to earn an annual salary of $73,000 per year as she did in 2013. Despite this testimony, the parties agreed in the Stipulation of Settlement Regarding Economic Issues dated July 22, 2019 that “an income of $40,000 shall be imputed to the wife.” They further agreed that “any award of spousal maintenance shall be tax-impacted at the rate of 25 percent to consider the change in tax consequences subsequent to the passage of the maintenance guidelines.” The husband described the child as sweet, kind, loving, outgoing, popular and charismatic. He is asking for sole legal and physical custody on the basis that he believes he is the more stable and secure parent. He understands that if awarded custody the child would have to change schools to the West Babylon School District. He believes West Babylon and Massapequa are both “good” public schools and noted they both have similar extracurricular programs and activities, however, he describes the West Babylon School District as more “diverse.” He testified to the serious concerns he has about the wife’s judgment during the marriage and was suspicious of her lies including her denial of drug use and abuse which he described as ongoing. He believes these concerns were validated and the lies were uncovered during the sixteen day trial. He testified to his desire for the wife to seek out appropriate treatment to avoid a relapse. He is concerned about the wife’s lack of stability and accountability and believes the child may be in danger if the wife does not receive appropriate treatment for her drug abuse issues. He is asking the court to order continued drug testing in order to safeguard and protect the child. The wife As it is the responsibility of this court to weigh and evaluate the credibility of the parties, it must be noted that during the trial the wife conceded to lying about her employment status and her drug use in court testimony, affidavits and during her interview with Dr. Santoro. The wife testified that she worked for the XX School District as a speech pathologist until two days before the subject child was born. She went on maternity leave from September 2012 until December 2012. She testified regarding serious issues which followed the birth of the child. She explained starting January 2013 she suffered from “postpartum depression and an opioid problem.” She explained that she was prescribed medication for an injury and continued to take the medication to help with her depression. She sought treatment from Dr. Roquet, a psychiatrist who treated her for postpartum depression and ADHD. He prescribed Zoloft and Wellbutrin for the depression and Adderall for the ADHD. She admitted that she sought treatment at Evolve Psychiatry for “marital issues” but did not disclose to any of her treating therapists that she had prior issues with opioid addiction or that she was previously prescribed Suboxone to “wean her off” the opiates. She conceded she had a “drug problem” in 2014 when she took more drugs than prescribed for pain, but does not believe she has any residual issues of opiate dependency today. She testified that in the future, she plans to seek out a treatment program and get drug tested. With regard to her current employment, she testified and submitted sworn affidavits to the court stating that she has been working for a private agency known as Corinthian agency since September, 2014. Additionally, during her interview with Dr. Santoro she told him she was currently working for Corinthian. However, after being presented with subpoenaed documents revealing that she was fired from Corinthian in June, 2018, almost a year prior, she admitted that her testimony and affidavits were “not accurate.” When asked why she lied to the court, she replied “I felt like I needed to.” She further explained that she “felt it would be used against me” and kept it a secret from everyone because she felt “scared, ashamed and embarrassed.” When asked why she lied to Dr. Santoro she replied “I didn’t want another strike against me.” Regarding her prior employment with the XX School District, she testified that she “resigned” from her position as a speech therapist via letter dated May 5, 2014. However, the husband offered into evidence a termination letter dated April, 9, 2014, one month prior to her letter seeking to resign. With regard to the husband’s allegations that she suffers from an opiate addiction, the wife stated although she admits to suffering from postpartum depression and ADHD, she doesn’t believe she currently has a “drug problem.” She testified that in 2012 she suffered from an injury where she shredded her sacroiliac joint and was prescribed opiates for the pain. Thereafter, in May, 2013 she was prescribed Suboxone by Dr. Wasser for an opiate dependency and “got clean” then in August 2014, after she was injured again, she was prescribed opiates. She explained that after the child was born in 2012, she suffered from postpartum depression and decided to self medicate using opiates that she took from her parent’s home because they made her feel better. She stated she would “go to bed hoping she would not wake up.” She further admitted to taking opiates from her parents’ home on more than ten occasions without their knowledge. In addition to taking opiates from her parents, she admitted that since 2013, she self medicated by taking opiates from leftover prescriptions. In February 2018, after suffering from a broken sternum, she was again prescribed opiates. She admitted that she did not tell her treating doctor, Dr. Serpe that she had previously taken Suboxone for an opiate dependency as a result, he prescribed hydrocodone, an opiate. She admits that she was in a “place of denial” and admits that even after taking Suboxone to wean her off the opiates, she “continued to use opiates in an unhealthy way,” but does not believe she is currently in need of treatment. She testified that although she had a problem for a short duration in the past, she does not consider herself an addict. She conceded that she often filled her opiate prescriptions at the pharmacy owned by her father (XX) and she took opiates from her parent’s house without their knowledge. The wife conceded on cross examination by the child’s attorney, who presented her with a printout of her pharmacy records, that during the almost two year period from August 25, 2014 to July 5, 2016 she filled prescriptions for 462 hydrocodone pills at various pharmacies. It is further noted that in this period, from October 9, 2014 to October 20, 2014 (11 days) the wife filled prescriptions for 120 Vicodin and hydrocodone pills. Additionally, during the period between August 2016 and February 2017 she filled prescriptions for 142 hydrocodone pills. The evidence and testimony confirmed that after she underwent Suboxone treatment in May 2013, during the period August 2014 thorough January 2018, the wife was prescribed 722 opioid pills. Although during the ten month period from February 2017 through December 2017, she did not fill any prescriptions for opiate medications, the court ordered hair follicle test results show that she tested positive for opiates from August 2107 through February 2018. Her explanation was that she was taking “left over prescription pills” from prescriptions written prior to February 2017 that she kept in her possession and took “here and there for pain.” She admitted at trial that for years she was engaged in a pattern of concealment, secrets and lies regarding her opiate use. She testified that she didn’t think she had an opiate issue and was in denial about her opiate dependency until February, 2018 when the court received the hair follicle drug test results. She testified that she didn’t realize how often she was taking opiates until she was order to be drug tested, and the hair follicle test results were a “wake up call” and she is “a different person now.” Although at certain times during the 16 day trial she admitted to having an opiate addiction, she also testified that she believed that one of the drug test results from Evolve in October 2018 was a “false positive” due to the fact that she ate a poppy seed bagel and when she asked them to repeat the test, the results were negative. She also admitted to coloring her hair after she was under a court order directing the parties not to cut or color their hair. It is noted that the wife receives treatment at Evolve for depression, ADHD and marital issues but does not receive treatment for drug abuse. She explained that although she believes this will be a “lifelong issue” for her, and she needs to be “more vigilant and proactive,” and is “planning to address the issue,” she has not started a drug treatment program because she was “waiting until all of this is over” stating she was “afraid it would look contrived or fake or that I was doing it for court.” The wife conceded she was involved in three car accidents. The first was in 2003, just after she gave birth to the child. She explained that she was suffering from postpartum depression and was “self medicating.” She explained that the police, the husband and her father all came to the scene of the accident. With regard to her car accident of December 6, 2017, the wife admitted that she failed to advise the doctors at the hospital of her history with opiate dependency. She signed herself out of the hospital “AMA” (against medical advice) prior to receiving a medical diagnosis, and when she was later called and told that the x-rays revealed a broken sternum, she was prescribed opiates. On May 22, 2018, the wife was involved in another car accident. She testified she left a court conference, picked up the child from school and was hit in the rear of her car by another vehicle. Despite the husband’s contention that the child was not safe, she stated she was not under the influence and was not issued a police citation. Thereafter, the husband obtained a court order preventing her from driving with the child for a period of four months. She described her relationship with the husband as toxic. She testified he refused to help her or support her telling her “it was my mess to fix” and “I should be grateful he didn’t take the child and leave me.” He would often berate her and refer to her as a “raging pill-head” then leave the house (and the child with her) and not return until the next day. She explained that she did what the husband told her to do because she was afraid he would leave her. She confirmed his testimony that he took her pills from her, placed them in lock-box and dispensed them at his discretion. She explained that her husband refused to help her get better, telling her to “figure it out on her own.” He decided which doctors and therapists she was “permitted” to see, refused to allow her to see out-of-network doctors and therapists, and he encouraged her to smoke marijuana and drink alcohol with him. She explained that since she met him, he smoked marijuana 5-6 times per day everyday and drank alcohol daily. She stated he would smoke marijuana in the garage every morning before he left for work and when he arrived home after work he would smoke again. She believes he was unfaithful and was cheating on her with a co-worker named Tara. When she told the husband she was suffering from postpartum depression, he told her to “pull herself together and go back to work.” She stated throughout the marriage and in front of the child he would often treat her with disdain, disrespect and resentment. She testified that he told her of his plan to stop smoking so he could pass a drug test, and she believes he intentionally cut his hair short to reduce the look back period of a hair follicle test. She testified that toward the end of the marriage, just prior to the commencement of the divorce action, the husband forced himself on her sexually and “raped” her. However, she admitted on cross examination that she initiated sexual relations in an effort to prevent the divorce action, did not disclose the alleged rape to Dr. Santoro during her interviews (although she did disclose that she was raped when she was 15 years old) nor did she call the police, file a report, or request an order of protection. She testified that she believes both the attorney for the child and Dr. Santoro are biased against her. Regarding her current health, she described herself as “more self aware,” and stated she is currently working on her mental health and taking positive steps to feel better such as seeing a therapist, exercising, yoga and meditation. Pursuant to this court’s pendente lite decision, the wife is currently receiving temporary child support of $500 per month and temporary maintenance of $825 per month. She testified that since she lost her job in June, 2018, she has applied for 3-4 positions and supports herself by caring for her mother and receives additional financial support from her father. The wife testified that with the financial assistance of her parents, she and her sister own the marital residence located in Massapequa, NY. With regard to the mortgage, she testified that throughout the marriage, she and the husband paid her parents $1,000 per month. She intends to remain in the home and if awarded residential custody the child would continue to attend school in the Massapequa School District. The wife is asking for primary physical custody of the child. Since the child’s birth, she believes she has been the primary care giver and described the husband as “uninvolved” for the first five years of the child’s life. She stated she was the parent who took the child to all of her medical appointments, play-dates and extracurricular activities. She believes the child should reside with her and remain in the Massapequa School District where she is currently enrolled and “thriving.” She contends that since the husband has attempted to “push her out” and “alienate her from the child,” she is the parent more likely to foster a positive relationship between the child and the other parent. She is asking for an award of custody and child support. Although the wife testified at trial that she is seeking an award of post-divorce maintenance of $1,000 per month for four years, her post trial brief seeks an award of $1,750 per month for four years as she is currently unemployed and searching for a job. She offered her Form 1099 for the years 2017 and 2018 which reflect her gross income of $31,900 and $14,790 respectively. She is also asking for an award of counsel fees. She explained that with the financial assistance of her parents, she has paid her attorneys a total of $163,000 and has a remaining balance due and owing of $280,428. It is noted that on July 15, 2019, During the 11th day of trial, the wife’s attorney made an oral application to disqualify the attorney for the child claiming she had a “clear bias and is prejudiced” against the wife. She based her contentions on the fact that during the trial, Ms. Mallis did not ask certain questions or address certain issue regarding the husband’s drug and alcohol use, and the safety concerns while the child is in the care of the husband, issues she believed were germane to the case. The attorney for the child argued that since she was assigned to represent the child she has always zealously represented her and asserted that the wife failed to offer a good faith or legal basis to disqualify her. The husband’s attorney argued that the timing of the wife’s oral motion was suspect and argued that the wife could have made this motion anytime prior to the commencement of the trial but waited until the 11th day of trial to make such application in an effort to “prolong and delay the case” in order to allow the child to continue to attend school in the Massapequa School District where the wife resides. The Court denied the motion and determined the wife did not put forth a reasonable basis to disqualify the attorney for the child. Dr. Santoro Dr. Anthony Santoro was appointed by this court on July 2, 2018 to conduct a forensic evaluation of the parties and child. He met with the parties, the child, their respective family members and other collateral sources connected to the family. He reviewed records from Dr. Serpe, Lauren Genki, her treating psychologist, Evolve records, and voluminous pharmacy records. His report dated January 28, 2019 was admitted into evidence along with the corresponding raw data and he was deemed an expert by this court. He met with the husband and wife separately on four occasions and met with the child twice, once at each parent’s home. Dr. Santoro testified that the husband and wife both raised serious concerns about the other’s use and abuse of drugs and alcohol. The husband alleged the wife has a history of opiate abuse and the wife alleged the husband abused alcohol and marijuana on a daily basis throughout the marriage. Regarding the husband, Dr. Santoro testified that he presented as composed, controlled, consistent, anxious and stable. He was confident that he was the better and more fit care giver in light of his concerns regarding the wife’s history of substance abuse, numerous motor vehicle accidents, and stolen pills from her father. He found that the husband attempted to minimize his own faults and viewed himself as “highly virtuous” and found that his alleged concerns about his wife may have been “exaggerated.” The husband admitted to using marijuana and alcohol in the past, but believed that marijuana use is not as significant as opiate use, and denied ever abusing marijuana. He advised Dr. Santoro that he stopped using marijuana in November 2017, just prior to commencing the within divorce action and his cessation was confirmed by the court ordered hair follicle and urinalysis drug testing. Dr. Santoro interviewed the wife, her father and the wife’s treating providers. He testified that the wife presented as very pleasant and cooperative but described her as struggling emotionally, anxious, tearful, and talkative. She advised Dr. Santoro of her three car accidents and admitted to taking too many prescribed pills which caused her to fall asleep at the wheel on one occasion. She explained that her medication caused her car accidents. The wife described her relationship with the husband as “toxic” and told Dr. Santoro that she suffers from postpartum depression, anxiety and ADHD. She reported to Dr. Santoro that she was first prescribed opiates and developed an addiction following a back injury when she was pregnant in 2012. She saw Dr. Salvatore Serpe who prescribed Vicodin and Percocet. She admitted taking Vicodin (sometimes 8 pills in one day) without a prescription, and taking pills from her father’s home without his knowledge or consent. However, he pointed out on several occasions during the trial and in his report that the issue of her opiate addiction was not addressed by her treating therapists. Based upon Dr. Santoro’s conversations with Siji Vorghese, NP, the therapist at Evolve, he learned that the wife is and was treated for postpartum depression, anxiety and ADHD and was prescribed Klonopin for her depression and Adderall for the ADHD. With regard to her prior treatment, the wife explained to Dr. Santoro that she was on Suboxone for one month to “wean” her off the addictive opiates. Dr. Santoro was advised by the wife and her therapist that she has not voluntarily availed herself of any formal substance abuse treatment and that in his professional opinion her “current treatment is contraindicated given her history.” He explained that the medications prescribed to the wife by Evolve were “inappropriate due to her addiction” and further opined that the controlled substances prescribed by her treating doctor (Dr. Serpe) is also “contraindicated” given her history of opiate misuse/abuse. Dr. Santoro explained that because the wife was not forthcoming and withheld information, her treating therapists at Evolve were not informed of her history of drug misuse nor were they advised of her Suboxone treatment and therefore “her significant history of opioid dependence was neither addressed or diagnosed by her current mental health treatment providers.” He explained that withholding such information to secure narcotic prescriptions is common among patients who suffer from addiction and demonstrates a “lack of appropriate insight.” He opined that the wife is in need of an outpatient substance abuse treatment program. He made home visits to both parties’ houses where he met with and interviewed the child. During his home visit with the wife and child, the child appeared restless, active, talkative and agitated. He explained that the child was more “at ease” during the husband’s home visit. During home visits with both parents he learned that the child loves both parents and enjoys sharing equal time with them. He described the child as a happy, well adjusted, and an adorable child who felt loved by both parents. He testified that the child was aware of the divorce and was provided with “inappropriate details of the conflicts facilitated by the mother.” Specifically, the child told Dr. Santoro that “mommy told me that daddy wasn’t nice to her and has been mean to her.” He found that the child was “overexposed” and “over informed” and attributed this to the wife. The wife expressed her concerns about the husband’s marijuana abuse. She advised Dr. Santoro that the husband smoked marijuana five or six times per day, every day. Dr. Santoro testified that such conduct, if true, is neither appropriate nor helpful to the wife’s recovery and sends “mixed messages” to the wife about drug use. Dr. Santoro met with the wife’s father, Mr. C., who denied providing the wife with pills and was unaware that she was “stealing” opiates from his home. He was also unaware that his daughter had a history of smoking marijuana with the husband. Notably, at trial, Dr. Santoro became aware of pertinent information which he was not advised during the evaluation process and which may have impacted his report, had he known. Specifically, although the wife told him she took a “leave of absence from her job to work on herself,” he was not aware that the XX School District directed a forensic evaluation of the wife which resulted in a report by Dr. Kaplan and her subsequent termination. He further testified that such information would have been useful to his evaluation. Additionally, he was not aware that the wife was prescribed opiates after her Suboxone treatment which he again testified is “contraindicated” in a case such as this. He was also not advised by the wife of her allegation that the husband “raped” her just prior to the commencement of the divorce action. Further, Dr. Santoro testified that he was unaware that the husband’s father owned a gun store and found this “raises credibility questions.” While the husband advised Dr. Santoro about the wife’s three car accidents, he neglected to advise Dr. Santoro about his own car accident in Massachusetts in 2016. While he may have included the aforementioned claims in his assessment and report, Dr. Santoro testified that it would not cause him to change his ultimate findings and recommendations. Dr. Santoro’s testimony and report set forth numerous concerns with the wife’s decision making abilities and judgment regarding the child. He highlighted her denial of addiction, history of stealing drugs from her parents, her involvement in numerous automobile accidents and her employment issues. He found that (1) she has ongoing and unresolved history of opioid dependency and substance abuse, (2) she is being treated with medications that are contraindicated considering such dependency, (3) she has refused to seek out the necessary treatment putting the child at risk and (4) she has a high risk of relapse. He testified that based upon his findings, awarding the parties joint custody would be “inappropriate” and a “mistake.” He found that, in his professional opinion, the husband is “in a better position to make legal decisions” based upon all of the information provided. Specifically, his report (at page 17) Dr. Santoro determined: “Given the totality of circumstances, it is the opinion of the undersigned examiner, within a reasonable degree of psychological certainty, that the best interest of the child would be met through her placement in the primary care of her father. While both mother and father present with distinct strengths and weaknesses, this examiner concludes that as a result of (the wife’s) untreated history of opioid abuse and dependence would reflect a risk to the child at issue which would not appear to exist for (the child) in the father’s home. While there is no basis to limit or restrict (the child’s) contact with her mother, of the two parents, (the husband) impresses as better suited to meet the needs of his daughter.” Further, Dr. Santoro recommended that the wife be awarded liberal and unfettered access to the child and that both parties should be subjected to ongoing drug testing. It is noted that Dr. Santoro opined that changing the child’s school from Massapequa to West Babylon at her current grade level would not impact the child significantly. Dr. Kaplan The husband called Dr. William Kaplan who was qualified as an expert. Dr. Kaplan explained that he was appointed in 2013 by the XX School Superintendent to conduct a psychiatric evaluation of the wife regarding her fitness to perform her duties as a speech pathologist. He testified that the school was concerned with her mental status as a result of her missing appointments, falling asleep, car accidents and self medicating. The wife told Dr. Kaplan that in the past she was prescribed opiates after surgeries and injuries and it “had a positive effect on her mood.” She explained how “she felt worthless” and stated “I just wanted to feel better.” She admitted that she stole Vicodin and Xanaz from her family. Dr. Kaplan found that “she was slow to understand what postpartum depression is.” However, he testified she acknowledged the serious nature of the addiction, he found her to be contrite and believed with appropriate treatment she could return to work as a speech pathologist. Mrs. Patricia G. Mrs. G., the husband’s mother, was subpoenaed to testify by the wife. She and her husband reside in Massachusetts but often visit with their son and the subject child. She explained that she is willing to help her son in every way possible. She assisted him financially in the purchase of his current home in West Babylon and with the payment of his counsel fees and expert fee obligations and is willing to babysit the child when she can. She conceded that when she was interviewed by Dr. Santoro she did not tell him that her husband owned a gun store or that her youngest son, Steven, was arrested and convicted of six felonies including assault with the intent to murder. She also failed to inform Dr. Santoro that her oldest son, Douglas (age 40), who resides with her, had a history of heroin use. She believes her son is a good father and although she has seen him intoxicated on a few occasions, she was unaware nor did she believe he has issues with marijuana or alcohol use or dependency. With regard to the wife, although she believes she is a “good mother,” she believes she has a drug problem and has “concerns” for the child’s safety. Michael C. Michael C is the wife’s brother and a New York City Police Detective in the Narcotics Division. He testified that he and his family would often socialize with the husband and wife and observed his sister to be the primary care giver to the child. He believed his sister when she told him she no longer took opiates. He is concerned about the husband’s marijuana drug use referring to him as a “habitual user” who “often appeared stoned.” He did not know or believe that his sister participated in smoking marijuana with the husband but stated that the house would often smell of marijuana. In light of this, he decided three years ago that he and his family would no longer visit them at their home. Nicole Andrea The wife called Nicole Andrea who is a senior case manager at TASC. She is certified and trained to collect urine samples. She testified that although she interprets the results from the uranalysis taken, she herself does not analyze the samples. She explained the protocol and procedures for hair follicle drug testing. She was asked to explain the discrepancy between two tests which yielded two different results for the wife. She testified that the results were from an overlapping period wherein the first segment of the first test overlapped with the first segment of the second test. She was not “concerned” about the discrepancy stating it is not uncommon to have such results since there are “different rates of growth for each strand of hair.” Lauren Jonke Lauren Jonke has been a Licensed Metal Health Counselor since 2014. She testified that she is employed at Evolve where the wife has been her patient since February 2018. She explained that the wife was referred to Evolve for “marriage issues” and an “adjustment disorder.” She testified that although she is now aware that the wife was prescribed opiates for pain management in 2013, she did not disclose her history of opiate abuse for which she was treated with Suboxone. She is aware that she is currently prescribed Klonopin and Adderall and she is drug tested regularly with negative results. She further testified that the wife did not disclose to her the fact that she was terminated from her employment and only learned of this during the trial. She justified the wife’s failure to disclose her prior opiate use and her employment termination by explaining the wife was filled with “guilt and shame.” With regard to her treatment, she described the wife as selfless, loving, committed to the child, and very motivated toward treatment goals. She testified that “A was lucky to have her as a mom.” She believes the husband was sending the wife mixed signals and often made poor suggestions such as encouraging her to stop therapy treatment and to smoke marijuana with him. Dr. Priyadarshan Bajpayi The wife called her treating psychiatrist, Dr. Bajpayi, a board certified psychiatrist who was qualified as an expert in the area of child/adult psychiatry and addiction. He reviewed the hair follicle drug test results and testified with a reasonable degree of scientific certainty that eating an “everything” bagel could impact the wife’s test result and could result in a “false positive.” He also testified that taking Adderall could also result in a false positive. He testified that the wife did not disclose her history of substance abuse or that she took Suboxone and that such knowledge and information would have been helpful as it would have affected the medications he prescribed. Lisa Festante Lisa Festante is a friend of the wife’s family and has been the child’s babysitter since she was three months old. She testified that she believes the child loves both parents, however, the wife seems to be more available and she primarily communicates with the wife regarding the child. Conclusions Of Law The Divorce In accordance with the parties’ Stipulation of Settlement dated July 22, 2019, the husband is hereby granted a Judgment of Divorce pursuant to DRL §170 (7). Custody and Parental Access The wife and husband are each seeking an award of sole legal and physical custody of the child, A, born September, 2012. This court has considered the testimony and credibility of the parties, the witnesses and the in camera interview with the child. In fashioning an order of custody, the court must consider the best interests of the child, which is paramount in any custody proceeding. See generally Eschbach v. Eschbach, 56 NY2d 167 (1982) and Friederwitzer v. Friederwitzer, 55 NY2d 89 (1982). Several factors should be weighed in making this custody determination, including: the original placement of the child, the length of that placement, the child’s desires, the relative fitness of the parents, any defiance of the legal process, the quality of the home environment, the parental guidance given the child, the parent’s financial status, and his or her ability to provide for the child’s emotional and intellectual development. Klat v. Klat 176 AD2d 922 (2nd Dept. 1991). Based upon the testimony and evidence presented during the trial, it is clear that the focus of this case concerns the reciprocal allegations of drug and alcohol abuse and the corresponding effect such condition has on the parties’ relative fitness to act as the custodial parent and whether the child is in danger with either parent. It is clear from the testimony that the wife lacks credibility and accountability for her conduct. Whereas, the court finds the husband to be credible and credits his testimony wherein he admits to his shortcomings and takes responsibility for his conduct. The court must also consider which parent will better foster the other parent’s relationship with the child. Importantly, one of the “primary responsibilities of a custodial parent is to assure meaningful contact between the children and the other parent…and the willingness of a parent to assure meaningful contact between the children and the other parent is a factor to be considered in making a custody determination.” Tori v. Tori 67 AD3d 1021 (2nd Dept., 2009). See also, Vasquez v. Ortiz, 77 ASD3d 962 (2nd Dept., 2010). “One parent’s inability or evident refusal to do so must be seriously considered by the court in determining the proper custodial regimen to fashion.” See, Turner v. Turner 260 AD2d 953,954 (3rd Dept., 1999). Here, the court finds that the husband is the parent more likely to foster a meaningful relationship between the mother and child as he has proven himself to be a responsible parent with good judgment. In contrast, the wife has continued to deny any ongoing drug abuse issues and exhibited an inability to be honest and use good judgment. The Court has also considered the wishes of the child as represented by her attorney and as stated during the in camera testimony wherein the court found the child to be credible, honest and sincere. In this matter, the child resided with both parents in an “intact” household from birth until approximately April 2018 when the husband established a separate residence in West Babylon. During the time in which the parties were “together,” it appears that both parties played an active role in helping to raise the child. Once the parties separated, they entered into a co-parenting agreement sharing the time with the child equally. Specifically, the wife has parenting time with the child every Monday and Tuesday and the husband has parenting time every Wednesday and Thursday. The parties alternated Friday until Sunday weekends. This parenting schedule currently remains in effect to date. Upon review of the trial testimony and the in camera with the child, it is obvious that the child loves both parents. The husband believes he is the more fit parent based upon a series of serious and significant events relating to the wife’s drug abuse from 2013-2018. Such events, including three car accidents, theft of opiates, concealing opiates and taking leftover pills “as needed” was documented by the husband and the expert witness, Dr. Santoro, and conceded to by the wife and supported by pharmacy records in evidence. The husband testified credibly that the wife’s actions and behavior since the child was born has caused him concern for the safety of the child. The husband’s did not deny his use of marijuana or alcohol and did admit to certain transgression regarding his lack of concern for the wife during a time where she clearly needed his support and approval. He admitted to smoking marijuana until he “quit” in November 2017, and admitted if the look back period was longer, he would have tested positive for marijuana. He further admits to sending mixed signals to the wife and calling her names such as “pill-head.” However, the court credits the husband for his decision to no longer drink alcohol or smoke marijuana and his drug tests have been consistently negative. The wife contends that although she may have suffered from drug addiction issues in the past, she is “healthy” now and able to safely care for her daughter. At trial, the wife conceded she had an issue with opiate addiction in the past, but since the court ordered hair follicle testing, which she described as a “wake up call” she is a “different person now.” It is noted that despite her alleged “wake up call” in 2018, and despite the recommendations made by the court ordered forensic expert, Dr. Santoro, and the child’s attorney, the wife failed to address this issue by entering into a drug abuse treatment program, and she failed to advise her treating therapists of her history of opiate abuse and Suboxone treatment. Rather, she continued with therapy for her ADHD and postpartum depression. It is noted and concerning, that none of the wife’s treating therapists who testified could offer any relevant testimony regarding her substance abuse addiction because they were unaware of her history of abuse or Suboxone treatment. It is also noted that the wife failed to call as a witness during the trial, Dr. Serpe, her primary physician who has been prescribing opiates to her for the past five years. Additionally, despite her expression of accountability at trial, she admits that she failed to advise her treating therapist of her prior issues of substance abuse and further claimed that some of the tests results were “false positives” blaming it on her having eaten an “everything” bagel. Moreover, the court credit’s Dr. Santoro’s unrefuted testimony and report which sets forth numerous concerns with the wife’s decision making abilities and judgment regarding the child. He found that (1) she has an ongoing and unresolved history of opiate dependency and substance abuse, (2) she is being treated with medications that are contraindicated considering such dependency, (3) she has refused to seek out the necessary treatment putting the child at risk and (4) she has a high risk of relapse. Upon review of Dr. Santoro’s report, and considering the wife’s history of drug abuse and her failure to address and seek out treatment specific to opiate addiction, her admitted conduct of lying to the court and to Dr. Santoro, her refusal to disclose her opiate addiction to her treating therapists, her admitted behavior of concealing and self-medicating using “left over” pills, her minimization of her conduct and her inability to account for her own actions but rather place blame upon the husband, causes this court serious concern about her ability to make decisions and judgments regarding the safety, well being and in the best interest of the child. The wife’s obvious and stated refusal to admit to and seek treatment for her opiate addiction coupled with her conduct and behavior prior to and during trial, demonstrate her failure to put the child’s needs above her own, and her poor judgment and inappropriate conduct clearly disqualify her from being the parent responsible for making decisions regarding the child’s upbringing and welfare. Based upon the aforementioned, and upon careful consideration and review of the evidence and testimony offered at trial, and having considered the credibility of the parties, the court hereby determines as follows: ORDERED, the husband is hereby awarded sole legal and physical custody of the child, and it is ORDERED, that the wife shall be entitled to parenting time every Tuesday after school until Wednesday evening drop off at the husband’s residence at 7:00pm and alternating weekends from Friday at 6:00pm until Sunday at 7:00 pm, pick up and drop off at the husband’s residence, and it is ORDERED, that in light of the distance between the parties’ residences, if the wife fails to timely bring the child to school on two or more occasions in any given month, her weekday overnight parental access shall be terminated and her weekday access shall be modified to 7:00pm drop off at the husband’s residence; and it is ORDERED, that the parties shall be entitled to daily telephone communication with the child during the other parent’s parenting time, and it is ORDERED, The wife shall have access to all of the child’s medical and educational records. The husband shall keep the wife promptly informed regarding all significant matters concerning the child including, but not limited to, the child’s health, education and extracurricular activities and the wife shall be informed of and permitted to attend all appointments, meetings and activities regarding the child. Further, the husband shall not schedule appointments or activities during the wife’s parenting time, and it is ORDERED, The parties shall alternate holidays as agreed, however in the event they cannot agree they shall utilize the following schedule: The husband shall have holiday and school recess parenting time as follows: a. Thanksgiving in odd years; b. Christmas Eve in odd years; c. Christmas Day and the school recess period in even years from December 25th at 10:00 a.m. to December 28th at 7:00 p.m. d. Christmas recess period in odd years from December 28th at 7:00 p.m. through New Years Day, January 1st at 7:00 p.m. e. Winter recess in odd years; f. Easter in even years; g. Spring recess in even years (whether or not it coincides with the celebration of Easter); h. Father’s Day-every year; I. Memorial Day in odd years; j. July 4th in even years; k. Labor Day in odd years; l. Columbus Day in even years; m. Martin Luther King Jr.’s birthday in even years; n. President’s Day in odd years. The wife shall have holiday parenting time in accordance with the following schedule, holiday and school recess parenting time shall be from 10:00 a.m. to 7:00 p.m., unless otherwise specified below: a. Thanksgiving in even years; b. Christmas Eve in even years c. Christmas Day and the school recess period in odd years from 10:00 a.m. to December 28th at 7:00 p.m. d. Christmas recess period in even years from December 28th at 7:00 p.m. through New Years Day (January 1st) at 7:00 p.m. e. Winter recess in even years from President’s Day at 10:00 a.m. until the Sunday before school resumes at 7:00 p.m.; f. Easter in odd years g. Spring recess in odd years (whether or not it coincides with the celebration of Easter). h. Mother’s Day-every year; I. Memorial Day in even years; j. July 4th in odd years; k. Labor Day in even years; l. Columbus Day in odd years; m. Martin Luther King Jr.’s birthday in odd years; n. President’s Day in even years. And it is ORDERED, Both parties shall be entitled to two non-consecutive weeks of parenting time with the child during the summer each year, and any other time during the summer recess as agreed upon between the parties. The wife shall notify the husband each year in writing by April 15th as to which weeks she has selected, and the husband shall notify the wife by May 1st of the weeks he has selected, and it is ORDERED, the husband shall not relocate the child more than twenty (20) miles from his residence located in West Babylon without the consent of the wife or an order of the Court, and it is ORDERED, neither party shall be under the influence of opiates, illegal drugs or alcohol while in the presence of the child, and it is ORDERED, that both parties shall submit to hair follicle drug testing with a six month look back period, twice a year (January and June), every year until the child’s 18th birthday. The parties shall agree upon a certified laboratory and all results shall be sent to both parties and the child’s attorney. The parties shall share equally in the cost of said drug testing. In light of the obvious acrimony and litigious nature of the proceedings to date, and to avoid unnecessary conflicts the court encourages the parties to use the Family Wizard, or a similar online web service to assist in scheduling and communicating and they shall share equally in the cost of said service. Maintenance In her post-trial brief, the wife asks the court to deviate from the statutory guidelines and is seeking an award of $1,750 per month in post-divorce maintenance for a period of four years. The basis for such deviation is to allow the wife to “re-integrate herself into the school system so that she an earn income commensurate with her education and skill set.” Although said amount and duration exceeds the statutory amount as set forth hereinafter, she did not offer testimony or evidence in support of such requested deviation. The wife testified that she is currently unemployed and in addition to the pendente lite support paid by the husband, she receives financial assistance from her father. She testified she is actively searching for new employment commensurate with her prior employment as a speech pathologist but failed to offer documentary evidence in support of such search. The husband argued that he should be credited with the pendente lite maintenance he has been and continues to pay the wife in the amount of $825 retroactive to April 26, 2018, a period of 18 months. He further argues that the wife is capable of earning $73,000 as she did in 2013 and as a result, she should not be awarded post-divorce maintenance. It is well settled that the amount and duration of maintenance is committed to the sound discretion of the trial court (Murray v. Murray, 269 AD2d 433[2d Dept 2000][citations omitted]). The court must determine each case based on its unique facts (Wortman v. Wortman, 11 AD3d 604 [2d Dept 2004]). The statute directs the court to consider the standard of living which was established during the marriage and to determine whether the party in whose favor maintenance is granted lacks sufficient property and income to provide for his or her reasonable needs and whether the other party has sufficient property or income to provide for the reasonable needs of the other. The Court bases its award of maintenance on wife’s imputed annual income of $40,000 and the husband’s annual income of $89,631. The husband is the payor spouse. DRL Section 236(B)(6) establishes a formula and guidelines for calculating presumptive amounts of spousal maintenance in matrimonial actions. The statutory maintenance formula was amended in 2015 and is effective as to post-divorce maintenance for actions commenced on or after January 23, 2016. The new statute thus applies to the instant action. Both parties were informed of the post-divorce maintenance guideline obligation. Here, the wife’s income (imputed) is $40,000 per year and the husband’s income is $89,631 per year. Where the payor’s income is lower than or equal to the cap of $184,000, and where the payor is the custodial parent and where the non-custodial parent (the wife) is the recipient spouse, the presumptive award is calculated as follows: First Calculation: The court shall subtract 20 percent of the payee’s income ($40,000) from 30 percent of the payor’s income ($89,631) said amount equals $18,889.30. Second Calculation: The court shall then multiply the sum of the payor’s income and the payee’s income ($129,631) by 40 percent ($51,852.40) then subtract the payee’s income ($40,000) from the amount derived ($51,852.40-$40,000) which amount equals $11,852.40. The court shall determine the lower of the two amounts derived by the first calculation and the second calculation which is $11,852.40. Therefore, the presumptive amount of post-divorce maintenance is $11,852.40 per year, which equals $987.70 per month. The court shall order the presumptive amount of maintenance, unless the court finds it to be unjust or inappropriate. In that case the court may adjust the presumptive maintenance award considering the statutory factors. The statutory factors must also be considered where the payor’s income exceeds the statutory cap of $184,000. The factors which the court must consider are as follows (DRL 236[B][6][e][1]): A. The age and health of the parties: Both parties are 38 years old. The wife alleges she suffers from depression and anxiety for which she is receiving treatment and medication. Each party alleges the other has issues regarding drug and alcohol dependency. B. The present or future earning capacity of the parties, including a history of limited participation in the workforce: The wife has been out of the workforce for about a year but has indicated her willingness to seek out new employment as a speech pathologist. The parties have agreed to impute an income of $40,000 per year to the wife. The husband earns $89,631per year and will likely earn at least this level of income in the foreseeable future. C. The need of one party to incur education or training expenses: No evidence was presented on this issue. D. The termination of a child support award before the termination of the maintenance award when the calculation of maintenance was based upon child support being awarded which resulted in a maintenance award lower than it would have been had child support not been awarded: This factor is not applicable here. E. The wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration: No evidence in the record. F. The existence and duration of a pre-marital joint household or a pre-divorce separate household: No evidence in the record. G. Acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the social services law: The evidence did not establish that the wife’s ability to obtain employment was inhibited by actions of the husband. H. The availability and cost of medical insurance for the parties: The husband has and will continue to cover the child through his insurance. The wife will be required to obtain/continue her own coverage when the judgment of divorce is entered. Sufficient information was not provided regarding the cost of same. I. The care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party’s earning capacity: No evidence in the record. J. The tax consequences to each party: The court considered the parties’ stipulation wherein they agree that the wife’s income shall be imputed in the amount of $40,000 and their agreement that any post-divorce maintenance awarded be tax impacted by 25 percent. K. The standard of living of the parties established during the marriage: The limited trial testimony revealed that parties standard of living was commensurate with their income and included gifts received by both parties’ parents. L. The reduced or lost earning capacity of the payee as a result of having foregone or delayed education, training, employment or career opportunities during the marriage: No evidence in the record. M. The equitable distribution of marital property and the income or imputed income of assets so distributed: The court considered the parties Stipulation regarding equitable distribution. N. The contributions and services of the payee as a spouse, parent, wage earner and homemaker to the career or career potential of the other party: the husband testified that the wife made little if any economic contributions during the marriage, the wife testified she contributed both in caring for the child and through her employment. O. Any other factor which the Court shall expressly find to be just and proper: The parties stipulated that the amount of maintenance would be tax impacted by 25 percent resulting in a reduction in the husband’s maintenance obligation from $11,852.40 per year ($987.70 per month) to $8,889.30 per year ($740.78 per month). Conclusion Regarding the Amount of Maintenance In view of the foregoing and in consideration of the applicable statutory factors and evidence, in the exercise of discretion, and based upon the credibility of the witnesses, this Court finds the tax impacted presumptive amount of statutory maintenance is just and appropriate. There is no income above the statutory cap. Therefore, this Court hereby orders the husband to pay spousal maintenance to the wife in the amount of $740.78 per month ($8,889.30 annually). The Duration of Maintenance Domestic Relations Law 236(B)(6)(f) provides the following advisory schedule regarding post-divorce maintenance: Length of the marriage Percent of the length of the marriage for which maintenance will be payable 0 up to and including 15 years 15 percent — 30 percent More than 15 and up to and including 20 years 30 percent — 40 percent More than 20 years 35 percent — 50 percent The length of the parties’ marriage is 6 years and 9 months. The advisory schedule is 12 months to 24 months. The Court has considered the aforesaid factors, stated in DRL 236(B)(6)(e)(1), and applicable facts, as fully set forth above, and has determined that it will award maintenance to the wife and apply the advisory schedule. The Court hereby awards the wife maintenance for 18 months. This determination was made in the exercise of discretion, based upon the credibility of the witnesses, the evidence, and the statutory factors and applicable facts as set forth above. Accordingly, it is ORDERED that the husband shall pay the wife maintenance in the amount of $740.78 per month, payable directly on the first day of each month, commencing on November 5, 2019 and on the fifth day of each month thereafter and continuing for a period of 18 months. The court’s pendente lite maintenance award is hereby vacated. Child Support In light of the Court’s determination to award the husband sole legal and residential custody of the subject child, the wife is the non-custodial parent. In awarding child support, the Court has considered the guidelines contained in the Child Support Standards Act (Domestic Relations Law §240 [1-b][c]) as well as the factors which permit a deviation from the standard calculation, as delineated in §240 (1-b) (f), such as the financial resources of the parties and the child; the physical and emotional health of the child and his/her special needs and aptitudes; the standard of living the child would have enjoyed had the marriage or household not been dissolved; the tax consequences to the parties; the non monetary contributions that the parents will make toward the child’s care and well-being; the parents educational needs; a determination that the gross income of one parent is substantially less than the other parent’s gross income; expenses incurred by the non-custodial parent in exercising visitations; and any other factor the Court determines relevant in each case. With regard to the respective income of the parties, the husband’s most recent tax returns from 2018 sets forth his gross income to be $89,631. Since his income from car detailing is de minimis and sporadic, the court shall not add such additional income in calculating the child support award herein. As aforestated, the parties stipulated that the wife’s income shall be imputed to $40,000. The CSSA provides that child support shall be determined by multiplying the combined parental income of the parents, up to $148,000, by the appropriate parental income percentages and then allocating the amount between the parents. Accordingly, the Court calculated the appropriate child support contributions as follows: 1. The income of the non-custodial parent, the wife, is $40,000.00 (Social Security and Medicare taxes were not deducted, in the exercise of discretion, as this is imputed income) plus the tax impacted maintenance awarded herein of $8,889.30 per year results in a determination that the wife has a total income in the amount of $48,889.30 per year. 2. The adjusted gross income of the husband, who is the custodial parent is $82,774.49 less his tax impacted maintenance obligation of $8,889.30 is $73,885.19. 3. The combined parental income (net of FICA/Medicare taxes) is $122,774.49. 4. The applicable child support percentage is 17 percent. 5. The combined basic child support obligation for the parties’ combined parental income (up to the cap of $148,000) is $20,871.66 per year or $1,739.30 per month. 6. The wife’s pro rata share of the basic child support obligation is $695.72 per month ($8,348.66 per year), representing 40 percent of the child support obligation. 7. The husband’s pro rata share of the basic child support obligation is $1,043.58 per month ($12,523 per year), representing 60 percent of the child support obligation. Upon review of Domestic Relations Law§240 (1-b) (f), and in light of the following factors: (1) the wife is currently unemployed, (2) the agreed upon imputed income to the wife, (3) the wife’s parenting time with the subject child, and (4) in the interest of justice, the court hereby elects to deviate from the aforementioned statutory calculation to an amount just and appropriate under the circumstances. Therefore, it is hereby ORDERED, that the wife shall pay child support to the husband in the amount of $400 per month commencing November 5, 2019. The parties shall be permitted to offset the child support and maintenance obligations awarded herein. There shall be no retroactive arrears due to the husband in light of the prior custodial status, and the parties relative incomes. Medical Expenses Based upon the testimony and evidence and the aforementioned pro rata allocations, it is ORDERED, that the husband shall continue to enroll the child in his employer sponsored health insurance plan, and in addition to the direct child support awarded, the wife shall pay 40 percent and the husband shall pay 60 percent of the child’s reasonable unreimbursed medical, dental, orthodontic, pharmaceutical, psychological, and therapeutic expenses; however, neither party shall be responsible for reimbursing the other for the services, incurred by the other party, of any out-of-network provider, except in the case of emergency or in consideration of an established physician relationship (Hills v. Hills, 240 AD2d 706 [2d Dept 1997]), unless the party incurring such services obtains the other party’s prior written consent; the parties shall provide each other with all necessary insurance cards and forms. Each party shall pay the aforesaid expenses within 30 days of receiving an invoice or bill for same from either the party incurring said expenses or the provider. Child Care Expenses As the child is currently 7 years old and will be in need of child care when the parties are working, it is ORDERED that the husband shall pay 60 percent and the wife shall pay 40 percent of the child’s reasonable and licensed child care expenses. Said payment shall be made within 15 days of receiving an invoice for same. Equitable Distribution With regard to the parties’ assets and liabilities, the Stipulation of Settlement Regarding Equitable Distribution dated July 22, 2019 provides for the distribution of all of the parties’ assets including but not limited to, real property, personal property, vehicles, pension and retirement benefits and bank accounts as well as marital debt, and said Stipulation is deemed incorporated herein. Counsel Fees Domestic Relations Law section 237 directs the court, in awarding counsel fees, to exercise its “discretion, [as] justice requires, having regard to the circumstances of the case and of the respective parties. The issue of counsel fees is “controlled by the equities and circumstances of each particular case” (Basile v. Basile, 122 AD2d 759 [2d Dept1986] quoting Ritz v. Ritz, 103 AD2d 802 [2d Dept 1984]). Among the factors to be considered by the court in determining whether an award is appropriate are the respective financial positions of the parties (Borakove v. Borakove, 116 AD2d 683 [2d Dept 1986]), the financial needs of the parties and the parties’ disparate incomes (Hausman v. Hausman, 162 AD2d 590 [2d Dept 1990]), the time expended by counsel, the hourly rate for such services in the legal marketplace, the nature of the legal services rendered, the issues before the court and the professional standing of counsel (DeCabrera v. Cabrera-Rosete, 70 NY2d 879 [1987]). “[A]ny award of attorneys’ fees should be based, inter alia, on the relative financial circumstances of the parties, the relative merit of their positions, and the tactics of a party in unnecessarily prolonging the litigation” (Ventimiglia v. Ventimiglia, 36 AD3d 899 [2d Dept 2007] [citations omitted]). For actions commenced after October 12, 2010, as is the case herein, there is a rebuttable presumption that the less monied spouse is entitled to counsel fees (DRL §237[a]). During pre-trial proceedings the wife made an application for counsel fees (motion sequence #4). In its decision dated April 22, 2019, this court was unable to determine the wife’s application based upon the papers submitted in that the wife “failed to submit updated financial information in support of her application, reflective of current income, child support, maintenance, expenses, and imputed income from gifts or other sources.” As a result, this court referred the application to trial. It is undisputed that the wife is the less-monied spouse with imputed income of $40,000 per year. The husband currently earns $89,631 per year. There is thus a presumption that the wife is entitled to counsel fees. The wife testified that her parents paid approximately $160,000 in legal fees on her behalf and is seeking an award of counsel fees from the husband. The wife offered her billing statements which reflect a total amount of fees and disbursements due and owing of more than $280,000 however her trial testimony indicted a billing error to her credit in the sum of $21,725. The wife argued in her post-trial brief that an award is warranted in light of the disparity in incomes, the nature and complexity of this contested custody trial and the numerous witnesses (including forensic expert witnesses) resulting in 16 days of trial. The husband testified that his parents also assisted him in paying his legal fees and he is not requesting an award of counsel fees but opposes any award to the wife. The invoices in evidence show that the wife paid a retainer amount of $15,000. Her attorney billed at an hourly fee is $675 per hour, which she asserts is “the prevailing rate in New York County” and commensurate with the issues presented. Based upon the invoices in evidence, the total amount of counsel fees billed to the wife for the period January 2018 until May 2019 (a 16 month period) is $280,000. The court note that the wife was also represented by newly admitted attorney, Sierra Strassberg, who billed at a rate of $375 per hour and expended, according to the billing records, total of $72,180. In stark contrast, the husband’s total counsel fees as set forth in his post trial brief, amount to less than $100,000. The Court has considered the presumption that the wife is entitled to counsel fees, as she is the less-monied spouse as well as the amount of counsel fees incurred by the wife and the relative financial positions of the parties. In view of the applicable law and facts, the equities herein, the credibility of the witnesses, and in the exercise of discretion, the wife is awarded counsel fees in the amount of $20,000, and it is ORDERED that the wife’s attorney, Grant and Applebaum PC is granted a Judgment against the husband in the amount of $20,000. The wife’s counsel is directed to settle the Judgment on notice. Order Pursuant to the provisions of 22 NYCRR 202.48, the husband is directed to submit a proposed Judgment of Divorce, and all other requisite documents to the Matrimonial Clerk on notice to the wife within sixty (60) days from the date of this Decision and Order. The failure to do so may result in this action being deemed abandoned pursuant to the Uniform Rules of Court. Unless otherwise specified herein or in the parties’ Stipulation of Settlement Regarding Equitable Distribution dated July 22, 2019, all awards and obligations shall be complied with within 60 days after service of this Decision and Order After Trial. All other applications, motions or requests not specifically addressed herein are hereby denied. This Constitutes the Decision and Order of the Court. Dated: October 30, 2019 Mineola, New York
