CORRECTED1 DECISION AND ORDER NOTICE OF RIGHT TO SEEK MODIFICATION OF CHILD SUPPORT ORDER This decision contains a child support order. The parties are advised that pursuant to the Low Income Support Obligations and Improvement Act of the Laws of 2010, contained in the New York Domestic Relations Law §§236(B)(7)(d) and 236(B)(9)(b)(2), unless the parties have specifically opted out of subparagraph (2) or (3) below in a validly executed agreement or stipulation, either party has the right to seek a modification of this child support order upon a showing of: 1. a substantial change of circumstances; or 2. that three years have passed since the order was entered, last modified, or adjusted; or 3. there has been a change in either party’s gross income by 15 percent or more since the order was entered, last modified, or adjusted, provided that the reduction in income was involuntary and the party has made diligent attempts to secure employment commensurate with his or her education, ability, and experience. The parties are further advised that, pursuant to Domestic Relations Law §236(B)(9)(b)(2), child support arrears that have accrued prior to the date of application to annul or modify any prior order or judgment as to child support may not be reduced or annulled. The parties are before the Court for the dissolution of their marriage and determination of issues relating to equitable distribution, spousal maintenance and child support. Trial of this matter took place on submission as per written stipulation of the parties.2 NYSCEF Doc # 81. Throughout the action, Plaintiff has been represented by Desiree de Moya, Esq., of de Moya & Associates, PC. Defendant has been represented by Martin Johnson, Esq. of Johnson and Cohen, LLP. BACKGROUND The parties were married on September 17, 1994. Plaintiff is 53 years old, having been born on October 29, 1967. Defendant is 51 years old, having been born on July 26, 1969. The parties have 3 children, Ryan, born on July 18, 1998, Corinne, born on August 24, 2001, and Kevin, born on June 10, 2004. This action was commenced on June 29, 2020. Plaintiff is a bus driver employed by Rockland BOCES, a position he has held for approximately 9 years. He is a high school graduate who attained a certificate in art illustration from a trade school in 1992. He worked as an art illustrator for a few years in the early to mid-1990′s. Plaintiff also worked as a per diem umpire at baseball games. His 2019 W-2 reflects income of $37,751. Defendant is employed by Blythedale Children’s Hospital in Valhalla, NY as an occupational therapist, a position she has held for approximately 9 years. Defendant holds a Masters Degree in Occupational Therapy. Her 2019 W-2/1099 reflects income of $115,907. In addition to their earned incomes, the parties’ household finances were supplemented on a regular basis by contributions from Defendant’s father, Michael Skelly. These contributions were, according to both parties, fairly regular and included not only monthly payments of approximately $1,500, but lump sum payments when the property taxes on the former marital residence came due. Prior to commencement of this action, the parties lived together, with their children, at the former marital residence located at 34 Hilltop, Congers, NY. Plaintiff vacated the residence in or around March 2020 shortly before this action was commenced. Defendant has remained in the residence with the children while this action has been pending. Plaintiff is not seeking physical custody of the unemancipated children. The oldest child, Ryan, is not the subject of this Decision and Order since, at age 22, he is emancipated. Corinne attends college. Kevin attends high school. The parties describe their, and their children’s, health as “good”. DISCUSSION Divorce Plaintiff seeks a divorce under DRL §170(7), the irretrievable breakdown of the parties’ marital relationship for a period of at least six months prior to the commencement of the action. Defendant has counterclaimed for the same relief. As such, the Court grants the parties mutual judgments of divorce. Plaintiff’s counsel shall submit a Judgment of Divorce incorporating this Decision and Order After Trial within 35 days of the date hereof. Defendant is granted leave to submit a counter proposed Judgment of Divorce, within 14 days of Plaintiff’s submission of the proposed Judgment of Divorce. The principal assets which are the subject of equitable distribution in this action are the former marital residence and the parties’ retirement accounts or pensions. Of course, the Court must also consider the parties’ significant debt. In addition, the Court must address Plaintiff’s requests for maintenance and counsel fees, as well as Defendant’s request for child support. Equitable Distribution The premise of the equitable distribution law is that “a marriage is, among other things, an economic partnership to which both parties contribute as spouse, parent, wage earner, or homemaker.” O’Brien v. O’Brien, 66 NY2d 576, 585 [1985]. “The Equitable Distribution Law reflects an awareness that the economic success of the partnership depends not only upon the respective financial contributions of the partners, but also on a wide range of un-remunerated services to the joint enterprise, such as homemaking, raising children and providing for emotional and moral support necessary to sustain the other spouse in coping with the vicissitudes of life outside the home.” Price v. Price, 69 NY2d 8, 15 [1986]. Although equitable distribution does not necessarily mean equal distribution, the general rule calls for an equal distribution of the marital assets, unless the equities of an individual case require an unequal distribution. Conner v. Conner, 97 AD2d 88, 96 [2nd Dept 1983]. The basic premise of equitable distribution is that: “modern marriage should be viewed as a partnership of co-equals. Upon the dissolution of a marriage, there should be an equitable distribution of all family assets accumulated during the marriage and maintenance should rest on the economic basis of reasonable needs and the ability to pay. From this point of view, the contributions of each partner to the marriage should ordinarily be regarded as equal and there should be an equal division of family assets, unless such a division would be inequitable under the circumstances of the particular case.” Conner v. Conner, supra at 96 (citing 11C Zett-Kaufman-Kraut, N.Y.Civ.Prac., Appendix B, at 8). When distributing marital property, the trial court is accorded “substantial flexibility in fashioning an appropriate decree based on what it views to be fair and equitable under the circumstances.” Mahoney-Buntzman v. Buntzman, 12 NY3d 415, 420 [2009]. Thus, “[t]he trial court is vested with broad discretion in making an equitable distribution of marital property…and unless it can be shown that the court improvidently exercised that discretion, its determination should not be disturbed.” Michaelessi v. Michaelessi, 59 AD3d 688, 689 [2nd Dept 2009]. “In determining equitable distribution, the trial court is directed to consider statutory factors, including the income and property of each party at the time of the marriage, and at the time of the commencement of the divorce action, the duration of the marriage, the age and health of the parties, any maintenance award, and the nontitled spouse’s direct or indirect contributions to the marriage, including services as a spouse, parent, wage earner and homemaker.” Loria v. Loria, 46 AD3d 768, 770 [2nd Dept 2007]; DRL §236(B)[5](d). Pursuant to DRL §236B(5)(d), the Court is required to consider the following factors in making an equitable distribution of the marital property: (1) the income and property of each party at the time of marriage, and at the time of the commencement of the action; (2) the duration of the marriage and the age and health of both parties; (3) the need of a custodial parent to occupy or own the marital residence and to use or own its household effects; (4) the loss of inheritance and pension rights upon dissolution of the marriage as of the date of dissolution; (5) the loss of health insurance benefits upon dissolution of the marriage; (6) any award of maintenance under subdivision six of this part; (7) any equitable claim to, interest in, or direct or indirect contribution made to the acquisition of such marital property by the party not having title, including joint efforts or expenditures and contributions and services as a spouse, parent, wage earner and homemaker, and to the career or career potential of the other party. The court shall not consider as marital property subject to distribution the value of a spouse’s enhanced earning capacity arising from a license, degree, celebrity goodwill, or career enhancement. However, in arriving at an equitable division of marital property, the court shall consider the direct or indirect contributions to the development during the marriage of the enhanced earning capacity of the other spouse; (8) the liquid or non-liquid character of all marital property; (9) the probable future financial circumstances of each party; (10) the impossibility or difficulty of evaluating any component asset or any interest in a business, corporation or profession, and the economic desirability of retaining such asset or interest intact and free from any claim or interference by the other party; (11) the tax consequences to each party; (12) the wasteful dissipation of assets by either spouse; (13) any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration; (14) whether either party has committed an act or acts of domestic violence, as described in subdivision one of section four hundred fifty-nine-a of the social services law, against the other party and the nature, extent, duration and impact of such act or acts; and (15) any other factor which the court shall expressly find to be just and proper. N.Y. Dom. Rel. Law §236. Under the law of equitable distribution, there is a presumption that all property acquired by either spouse during the marriage is marital property. DRL §236(B)(1)(c). Marital property is defined in DRL §236(B)(1)(c) as “all property acquired by either or both spouses during the marriage and before execution of a separation agreement or the commencement of a matrimonial action, regardless of the form in which title is held.” Separate property is defined as “property acquired before marriage or property acquired by bequest, devise, or descent, or gift from a party other than the spouse…”. DRL §26(B)[1][d]). Separate property also includes “property acquired in exchange for or the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse.” DRL §236(B)[1][d](3). All of the relevant factors listed in the statute have been considered as required by law. Many of the factors were not addressed by the parties in their papers or are inapplicable. Residence at 34 Hilltop, Congers, NY The parties stipulated that the value of the former marital residence is $510,000. Because of the manner in which the property was acquired, more fully discussed below, there is no first mortgage on the house. There is, however, a Home Equity Line of Credit which had a balance due in March 2020 of $72,511.49. On January 29, 2021, the balance was $68,036.23, the reduction being the result of Defendant having made payments during the pendency of this action. The parties argue for differing distribution of the equity in the home. Plaintiff’s Request for Equitable Distribution of the Equity in the Former Marital Residence. Plaintiff requests that if Defendant wishes to retain the former marital residence, the Court should award him 50 percent of the net equity in it, to be paid to him within 30 days of the Court’s decision. Alternatively, Plaintiff requests that if the Defendant does not wish to retain the home, it be placed on the market and the net equity divided equally. Using the agreed upon value of $510,000, and the HELOC balance of $69,805.28, he calculates one half of the equity to be $220,097.36. Plaintiff claims, therefore, that if Defendant seeks to retain the home, she should pay him $220,097.36 within 30 days of the Court’s decision. Defendant’s Request to Delay the Sale of the Home/Claim to a Separate Property Interest/Enhanced Share of the Former Marital Residence Defendant requests the Court to delay the sale of the house until at least Spring 2022 when their youngest son enters his senior year of high school. Optimally, she suggests that she be permitted to remain in occupancy until Kevin reaches age 21 if he attends college. She suggests that the house be listed for sale at a price to be agreed upon or the average of 2 updated appraisals to be obtained contemporaneously with the listing. Alternatively, she offers to pay Plaintiff $176,000 in Spring 2022, an amount which she calculates as 40 percent of the net equity ($510,000 less the home equity balance of $70,000 times 40 percent = $176,000). As an additional alternative, she suggests that if the house is to be sold, she be granted the first option to buy the house “upon the acceptance of a bona fide offer to purchase” at 40 percent of the net equity “of the subtraction of the then balance on the HELOC”. Throughout this litigation, Defendant asserted a separate property claim to $300,000 of the equity in the former marital residence based on how the house was acquired. It is this assertion which, almost single handedly, compelled the matter to trial. The separate property claim was predicated on Defendant’s assertion that a substantial portion of the money used to purchase the home constituted an advance on her inheritance from her father. Plaintiff rejected that claim and asserted that the home is marital property to be equally divided. The parties agree that in October 2006, when they and their children were living in a townhome, Mr. Skelly advanced the funds to purchase the home for $536,000 without any contribution from them. The parties agree that Mr. Skelly offered to advance the cost of the house with the understanding that they would repay him after the sale of their townhouse. According to Mr. Skelly, “I initially advised both Lisa and Chris that we [he and Mrs. Skelly] would lend them the money to purchase a home to be paid back from the sale of the town house and through a mortgage for the balance.” Skelly Affidavit NYSCEF Doc # 49, 2. The home was deeded to both parties when acquired. NYSCEF Doc # 76. Neither party disputes that they agreed to repay Mr. Skelly for the house purchase using the proceeds from the sale of the townhome in which they were living at the time and by securing a mortgage for any shortfall. Thus, in February 2007, when the townhome sold, the parties directed their real estate attorney to remit the net proceeds to Mr. Skelly who received $232,276.95 from the sale. NYSCEF Doc # 75. The parties and Mr. Skelly agree that when they discussed how to repay the balance of the purchase price for 34 Hilltop, Mr. Skelly said, in sum and substance, “Don’t worry about it.” Defendant and Mr. Skelly have attested that in a later conversation,3 to which Plaintiff was not a party, they discussed repayment of the monies owed and that Mr. Skelly told Defendant to “consider this forgiveness as an advance on your inheritance.” (NYSCEF Doc # 49, 5). Plaintiff denies any knowledge of this conversation and Defendant denies ever sharing that information with Plaintiff. Mr. Skelly attested that “my conversations with Lisa and with my other children about money were always private between us and never involved any of my in-laws” and that “my statements to my children to whom we have given money have always been the same; ‘Consider this an advance on your inheritance.’” Id. Defense counsel repeatedly asserted as this matter was litigated that he intended to prove that Defendant possessed a separate property claim in the equity in the home based on Mr. Skelly’s “advance on Defendant’s inheritance”. Counsel claimed that, despite the fact that there was nothing in writing to evidence this claim, Mr. Skelly would testify that he made such advances not only to Defendant but to his other children as well. Notably, Mr. Skelly’s trial affidavit barely mentions inheritance advances to his other children and does so only in the most general way. Apparently recognizing that the proof of a separate property claim was lacking, instead of asserting a separate interest for the full amount of the forgiven debt, defense counsel now argues that because of Mr. Skelly’s contribution to the purchase of the house, “an unequal distribution of the net equity in the home is warranted in favor of the Defendant-wife.” NYSCEF Doc #50, p2. Distribution of the Marital Residence The Court rejects Defendant’s claim to a separate property interest in an amount equal to the amount of the debt forgiven by Mr. Skelly. Similarly, the Court rejects Defendant’s claim to an unequal distribution of the equity value in or net proceeds from the sale of the home. The forgiveness of the debt can be viewed as a gift to both of them. Alternatively, if, indeed, Mr. Skelly’s forgiveness of the debt is viewed as an advance on Defendant’s inheritance, the advance, which might have been viewed as separate property, was transmuted since it was applied to eliminate an indebtedness on jointly owned property. Commingled property is presumed to be marital. Belilos v. Rivera, 164 AD3d 1411 [2nd Dept 2018]. To be sure, the Court finds that Mr. Skelly’s forgiveness of the debt constituted a gift to both parties. If the Court were to allow Defendant to now claim that she is entitled to a larger share of the home based on the forgiveness of the loan, the Court would be negating the gift to Plaintiff made by Mr. Skelly. This after-the-fact attempt to alter the effect of the gift from Mr. Skelly is improper, unwarranted and not supported by case law. As stated above, Domestic Relations Law creates a presumption that all property acquired during the marriage is marital. DRL §236(B)(1)(c). The law is clear that a gift to married parties is marital property. This does not change simply because the gift was in the nature of forgiveness of a loan. Indeed, in Strang v. Strang, 222 AD2d 975 [3rd Dept 1995], a case where the former marital home was purchased using a loan from the defendant’s father which was later forgiven and thus held to be a gift, the Court stated: we reject [defendant's] claim that she should have been credited for the $10,000 down payment on the marital residence; she argues that it was a gift from her father and, thus, separate property. Defendant’s assertion is undermined by the fact that the loan was not made to defendant alone. A gift to a husband and wife from the parents of one party is treated as marital property for the purpose of equitable distribution…(see, Ackley v. Ackley, 100 AD2d 153, lv. dismissed 63 NY2d 605); only when a gift is made to one spouse will it be deemed separate property. Strang, supra at 976. Simply stated, Defendant has not overcome the presumption that the gift to the parties in the form of the forgiveness of the debt, is marital property. The law is clear that “[t]o overcome a presumption that commingled property is marital property, the party asserting that the property is separate must establish by clear and convincing evidence that the property originated solely as separate property and the joint account was created only as a matter of convenience, without the intention of creating a beneficial interest” (Renck v. Renck, 131 AD3d at 1149). Belilos, supra at 1412. While Defendant argues that Ackley v. Ackley, supra, supports her claim of an unequal distribution of the home, the Court disagrees. In Ackley, the wife’s parents deeded her a home just one year prior to the divorce action being filed. The Appellate Division noted that the trial court in Ackley specifically found that [i]n apportioning most of the value of the residence to the wife, the court considered all of the factors listed in the statute. “[O]ther” factors he found to be “just and proper” (Domestic Relations Law, §236, part B, subd 5, par d, cl [10]), were that the transfer was motivated by the desire of the parents to benefit primarily the wife and that the husband had made only a limited economic contribution to the property. These factors and the fact that the separation closely followed the transfer make it equitable that the wife receive the major share of the property and that the husband’s share be limited to the contributions he made toward the repayment of the mortgage and home improvement loan. Ackley, supra at 156. By contrast, the parties to this action conducted themselves over the last 14 years as if the home was owned equally by them. It would be inequitable to hold that Defendant’s private conversation with her father, of which there is no corroborating or other proof, negates the clear and unequivocal gift to both parties from Mr. Skelly. Defendant has not met her burden of proof to demonstrate by clear and convincing proof that the forgiveness of the loan constitutes separate property. There is nothing in writing to support Defendant’s newfound claim of a separate property interest or that would support an unequal distribution of the value of the home. Nor is there anything in the evidence submitted that would establish that Mr. Skelly intended to benefit Defendant to any greater degree than he intended to benefit both parties when he forgave the loan. In addition, the Court rejects Defendant’s request to remain in the property through 2022 or later if Kevin attends college, as well as her suggestion that Plaintiff should share in only 40 percent of the net equity. Delaying the sale of the house would be manifestly unfair since doing so would deprive Plaintiff of the benefit of his share of the value of the home without accounting for his loss of immediate access to those monies. Thus, the Court awards each party one half of the net value of the former marital residence, as modified here to account for credit to Defendant for payments made during the pendency of this action. Since the stipulated value of the house is $510,000 and the parties owed, as of January 2021, $68,036.23 on their HELOC, the net equity is $441,963.77. One half of that amount is $220,981.88. It would be unfair for the Court to ignore that Defendant has made payments of $7,611.60, inclusive of interest, on the Home Equity Line of Credit during the pendency of this action.4 Defendant is entitled to credit for one half of the amounts paid by Defendant towards the HELOC debt, $3,805.80. Thus, Plaintiff’s equity in the property is hereby determined to be $217,176.08 and Defendant’s equity in the property is hereby determined to be $224,787.68. Defendant is entitled to additional credit for one half of any additional payments made by Defendant on the HELOC after January 2021 up through the date of this Decision and Order After Trial. Counsel are directed to calculate this amount and adjust the equity distributions accordingly. Defendant shall have the option of buying Plaintiff’s interest in the property out, or of listing the property for sale. If Defendant is intent on keeping the premises, she may do so if: (1) within 15 days of the date of this Decision and Order After Trial, Defendant gives Plaintiff written notice of her intent to pay him his equitable share and (2) Defendant pays Plaintiff his share of the equity within 45 days of the date of the notice. If Defendant fails to give timely notice of her intent to Plaintiff or fails to pay Plaintiff his equitable share (as adjusted pursuant to the additional directives herein) in the time allotted, the property shall be listed for sale at the agreed upon value with a real estate broker mutually agreed upon. If the parties cannot agree on a real estate broker, then the property shall be listed by both brokers selected by the parties as co-brokers. If the property does not sell at the listing price, the parties shall adjust the asking price as recommended by the broker. Defendant shall continue to pay, and shall be solely responsible for, without further credit, all carrying costs of the property during her occupancy of it while it is listed for sale. Neither party shall do anything to inhibit or impair the sale-ability of the property. In the event the property sells for less than the appraised value, then the net equity of both parties shall be reduced equally. If the property sells for more than the appraised value, then each parties’ interest shall be increased by 50 percent of the net difference. Retirement Accounts/Pensions The law is well settled that retirement savings and pension benefits earned during a marriage and prior to the date of commencement is marital property. “Vested rights in a noncontributory pension plan are marital property to the extent that they were acquired between the date of the marriage and the commencement of a matrimonial action, even though the rights are unmatured at the time the action is begun.” Majauskas v. Majauskas, 61 NY2d 481, 485-86 [1984]. Plaintiff has a vested pension with the State of New York. Defendant has a 401(k) with a date of commencement value of $32,688.00. Defendant also has a 403(b) retirement account with a date of commencement value of $1,670.00. Plaintiff contends that Defendant also has a State of New York pension, the details of which have not been provided to the Court. Neither party asserted any separate property claims to the retirement accounts. The parties shall share equally in each other’s retirement accounts, without regard to any loans that may have been taken against the balance(s). With respect to the New York State pensions, counsel for the parties shall arrange for the necessary Qualified Domestic Relations Order (“QDRO”) to be prepared and submitted to the Court within 60 days of the date hereof. In addition, Plaintiff is awarded 50 percent of the aggregate value of the Defendant’s 401(k) and 403(b) accounts, $17,179 plus or minus 50 percent of any gains or losses through the date of the execution of a Domestic Relations Order (“DRO”) by which the Court directs the transfer of the monies. The parties shall share the expense of the preparation of the QDRO(s)/DRO(s)on an equal basis. Counsel may, if they agree, adjust or set off the amounts to which each party is entitled in order to minimize the number of QDROs or DROs which need to be submitted in order to reduce the costs associated with these transfers. Maintenance Plaintiff seeks maintenance from Defendant. The amount he seeks is a moving target, changing depending on a number of varying assumptions, including whether the Court imputes additional income to either party (as both request) and how the Court treats the undisputed periodic contributions to the former marital household made by Mr. Skelly. Whatever the amount, Plaintiff seeks maintenance for 12 years.5 Defendant opposes the award of maintenance to Plaintiff, contending that he is capable of working more hours and earning more at his current job or of taking a second job if necessary. Defendant contends that Plaintiff works only 33 hours per week and has time to secure part time employment, especially since he will not need to be at home for the children, which was his justification, in part, for his employment. Defendant submits that the Court should impute $60,000 per year of income to Plaintiff for the purpose of calculating spousal and child support. In support of this suggestion, she notes that Plaintiff admitted that he earned $55,000 annually when he worked for Culligan Water Co for 8 ½ years, ending 13 years ago, in 2008. Defendant argues that Plaintiff earned similar money when he worked at Pfizer for about a year following that. In addition, Defendant states that Plaintiff is able to be self-supporting based on his Net Worth Statement wherein he recites his monthly expenses to total $50,100 annually. She concludes that Plaintiff is “economically independent and could be self-supporting with minimal effort on his part.” She suggests that Plaintiff could fill whatever short fall might occur between his current income and needs by supplementing his income with a summer, weekend or evening job. Rebutting any claim that Plaintiff might seek to maintain the lifestyle acquired during the marriage, Defendant contends that the parties’ lifestyle was a fiction, predicated on living on debt and contributions from her father. She submits that awarding Plaintiff significant support based on their “near subsistence” lifestyle would be a “flight into fantasy land”. Finally, Defendant notes that changes to the tax laws have not caught up to the support calculators. Thus, although the maintenance calculators available to litigants and courts to calculate support were created when maintenance from one spouse to the other was tax deductible, that is no longer the case.6 Hence, Defendant argues, without stating as much, that she would be carrying an unfair tax burden if she is compelled to pay maintenance to Plaintiff because the spousal support would be paid in after tax dollars. The Court agrees with both parties that additional income should be imputed to the other. Plaintiff can certainly work during the non-school summer months in any number of capacities, as he has in the past. Indeed, Plaintiff admits in his trial affidavit that he kept his job at BOCES to be able to have the summers off, ostensibly to be able to spend time with and care for the children. Since the children are older, the need for Plaintiff to provide care to them while Defendant works in the higher paying job is lessened. Thus, Plaintiff can, as he did in 2020, secure work beyond his bus driver job. In light of his past work experience and capabilities and his availability to work during the summer months in addition to his ten month a year job as a bus driver, the Court imputes income of $45,000 to Plaintiff. This amount is certainly achievable since his income from BOCES in 2019 approached $38,000 and he has nearly the entire summer to secure seasonal or other part-time work. In addition, in light of Mr. Skelly’s long history of contribution to the party’s expenses (spanning over 10 years), the Court imputes income to Defendant of $1,000 per month from her father.7 Although no proof of Mr. Skelly’s financial ability has been offered, there was also no proof offered to support any claim that he would suddenly deprive his daughter of aid after all these years. Thus, the Court calculates support based on incomes of $45,000 per year for Plaintiff and $129,785 per year for Defendant. Defendant’s income is predicated on her 2020 earnings of $117,785 from Blythedale, and $12,000 from her father. The Court has omitted the $6,207 income which defendant earned from private placement patients in 2020 as there is nothing in the record to indicate that such income is recurring. Using the NYS Post Divorce Maintenance and Child Support Online Calculator yields a guideline amount of spousal support payable from Defendant to Plaintiff in the amount of $2,076.17 per month. The Court finds this amount to be reasonable and appropriate under the circumstances of this action and so adopts this amount as the amount of spousal support to be paid by Defendant to Plaintiff. Under the Guidelines, the period of support is left to the Court’s discretion, subject to an advisory schedule which recommends a support period of 35-50 percent of the length of the marriage for a marriage of more than 20 years, like this one. In this case, the Court finds the suggested guideline period to be excessive in length. In this regard, the Court has considered that Plaintiff’s child support obligations will soon decrease based on the ages of the parties’ children (thus allowing him to keep a larger portion of the support paid), the elimination of the tax deductibility of spousal support by Defendant (effectively increasing the after tax cost of the spousal support as compared to when spousal support was tax deductible), and the distributive award made herein. In addition, Plaintiff’s 9-year history of employment as a bus driver indicates that it is unlikely that he will seek work in a different field. Thus, a lengthy period of spousal support to permit retraining, one of the core justifications for spousal support, is not present here. Indeed, Plaintiff has not stated that he seeks to enter the workforce in any other field. Consequently, the Court awards the spousal support for a period of 48 months, commencing the first day of the first full month after the date of this Decision and Order After Trial. Plaintiff asserts that Defendant is in arrears on paying the pendente lite spousal support ordered by this Court. To the extent that she is in arrears, the amounts owed remain. Nothing in this Decision and Order After Trial shall be construed to negate any arrears and all such arrears shall be paid by Defendant to Plaintiff by adding $250 per month to the payments ordered herein until paid. If the period of time it takes for Defendant to pay all arrears owed exceeds the 48 months for which Plaintiff has been awarded maintenance, then the payments towards the arrears shall increase to $1,000 per month until fully paid. Child Support The Child Support Standards Act (“the CSSA”) codified in section 240 of the Domestic Relations Law8 (“DRL”) provides that the Court shall calculate the “basic child support obligation” and the non-custodial parent’s pro rata share of the basic child support obligation. Unless the Court finds that the non-custodial parent’s pro rata share of the basic child support obligation is unjust or inappropriate, after considering ten enumerated factors, it must order the noncustodial parent to pay his or her pro rata share of the basic child support obligation. DRL §240[1-b](f). The amount of child support derived from the implementation of the CSSA formula is presumptively correct. DRL §240[1-b][f] provides: The court shall calculate the basic child support obligation, and the non-custodial parent’s pro rata share of the basic child support obligation. Unless the court finds that the non-custodial parent’s pro-rata share of the basic child support obligation is unjust or inappropriate, which finding shall be based upon consideration of the following factors: (1) The financial resources of the custodial and non-custodial parent, and those of the child; (2) The physical and emotional health of the child and his/her special needs and aptitudes; (3) The standard of living the child would have enjoyed had the marriage or household not been dissolved; (4) The tax consequences to the parties; (5) The non-monetary contributions that the parents will make toward the care and well-being of the child; (6) The educational needs of either parent; (7) A determination that the gross income of one parent is substantially less than the other parent’s gross income; (8) The needs of the children of the non-custodial parent for whom the non-custodial parent is providing support who are not subject to the instant action and whose support has not been deducted from income pursuant to subclause (D) of clause (vii) of subparagraph five of paragraph (b) of this subdivision, and the financial resources of any person obligated to support such children, provided, however, that this factor may apply only if the resources available to support such children are less than the resources available to support the children who are subject to the instant action; (9) Provided that the child is not on public assistance (i) extraordinary expenses incurred by the non-custodial parent in exercising visitation, or (ii) expenses incurred by the non-custodial parent in extended visitation provided that the custodial parent’s expenses are substantially reduced as a result thereof; and (10) Any other factors the court determines are relevant in each case, the court shall order the non-custodial parent to pay his or her pro rata share of the basic child support obligation, and may order the non-custodial parent to pay an amount pursuant to paragraph (e) of this subdivision. Under the CSSA, the amount of child support owed to the custodial parent is predicated on the non-custodial parent’s income multiplied by a set percentage determined by the number of children for whom support is warranted. Where there are two dependent children, as here, the applicable percentage of each parties’ income under the CSSA is 25 percent. DRL §240(1-b)(b)(3)(ii). “Income” is defined as “gross income as was or should have been reported on the most recent federal income tax return”. DRL §240(1-b)(b)(5)(I). Under the CSSA, there are required deductions from gross income for Social Security and New York City and Yonkers income taxes. As set forth above, the Court has imputed additional income amounts to both parties. Using the imputed amounts of $45,000 per year for Plaintiff and $129,785 per year for Defendant, the CSSA guidelines yield basic child support payable by Plaintiff to Defendant in the amount of $1,283.33 per month. The Court finds this amount to be reasonable (not unjust or inappropriate) under the specific circumstances of this case and, therefore, adopts this amount. Plaintiff shall begin paying this amount of child support to Defendant commencing on the first day of the first full month after the date of this Decision and Order After Trial. Defendant is authorized to deduct the basic child support from the maintenance awarded above. She shall not, however, deduct any add-on expenses without prior consent from Plaintiff. In addition to basic child support to be paid in the amount specified, the parties shall share in the costs of typical add-ons on a pro rata basis. Plaintiff shall be responsible for 40 percent of these items. Defendant shall be responsible for 60 percent of these items. The Court has not been provided with information concerning which parent currently provides health insurance for the children, if any, or of the cost associated with doing so. Defendant requests that Plaintiff be directed to pay 40 percent of all health-related expenses not covered by insurance, implying that health insurance is in place for them. Thus, the Court directs the parties to confer and agree on which of them shall continue to provide health insurance for the children, taking into consideration the costs associated with the coverage and the benefits provided. If the parties agree that Plaintiff is to provide the coverage, Defendant shall reimburse him 60 percent of the additional premium cost incurred for the coverage. If the parties agree that Defendant shall provide the coverage, then Plaintiff shall pay her 40 percent of the additional premium for the coverage. If either party is able to provide cost free coverage to the children, then that parent shall do so, without contribution from the other parent. All non-covered medical, dental and optical expenses, including co-pays and deductibles shall be shared on the percentages set forth, 60 percent from Defendant, 40 percent from Plaintiff. To reduce the out of pocket health related expenses, the parties shall endeavor to avail the children of in network medical coverage before using an out of network provider. The parties shall consult with each other prior to using an out of network provider in non-emergent situations. Any party seeking reimbursement for an expenditure shall provide proof that such expenditure was incurred and paid in writing within 45 days of payment. The party from whom reimbursement is sought shall have 30 days in which to pay or contest the amount claimed. Any objection to a claim for reimbursement shall be made in writing. The parties retain the right to seek redress from any court of competent jurisdiction. College Expenses Both parties address college expenses, although the amount of information provided to allow the Court to give full consideration to an equitable allocation of responsibility for paying for college is sparse. Corrine currently attends Sacred Heart College, to which she received a scholarship. Kevin is a junior in high school and, according to Defendant, “will be applying to colleges and actively looking at schools this year.” According to Plaintiff, Corinne “qualified for Sallie Mae loans and FAFSA so Corinne’s college expenses are considerably less.” Plaintiff continues, “Additional [sic], each of our children have bank accounts to help defray college expenses.” The amounts in these accounts is unknown to the Court. Plaintiff requests that the Court impose a cap on tuition based on the State University of New York rates (without specification of which college or university within the system to use as a barometer). He asks that the cap be applied after first deducting all “funds earmarked for college, and any scholarships or financial aid the children may qualify for”. Defendant states “My father has given Corrine some money to cover tuition for only one (1) year. She has also received some scholarship money and is taking loans. I have paid approximately $800 so far for this year for fees, books and other miscellaneous expenses. Corrine’s expenses for college will continue as she continues her next two years.” Defendant notes Plaintiff’s prior offer to pay 40 percent of Corrine’s college expenses subject to a SUNY cap without specifically agreeing to accept the offer. The parties shall share all college and college related expenses in the percentages set forth above, 60 percent payable by Defendant, 40 percent payable by Plaintiff. College expenses shall include tuition, room, board, application fees, all mandatory fees imposed by the college/university, health services fees, books and supplies, laptop computers or other resources required, extra-curricular fees, expenses incurred by the parent and child to visit schools in connection with the college search, and travel expenses to and from the college/university into which the child matriculates. The tuition and room and board expenses for college/university shall be capped at the then highest amount charged by SUNY for tuition and room and board. To the extent that Plaintiff actually pays (i.e. has paid his pro rata share) for board for a child, he shall be permitted to reduce his monthly child support accordingly.9 The respective parties’ share of college expenses shall be calculated after deducting from the gross charges the amounts of all scholarships, grants or loans acquired by the child. All accounts held for or in the name of the children which were earmarked by the parties as college or educational accounts shall remain the property of the children and shall be used exclusively for the children’s educational pursuits. Both parties shall be entitled to complete information concerning the accounts, including the institution where the accounts are maintained and the amounts held in the accounts, on at least an annual basis. Each party shall inform the other, at least 5 days in advance and in writing, whenever any monies are to be withdrawn from these accounts. Debts In addition to the home equity line of credit, the parties have significant marital debt including credit cards and accounts with Best Buy, PC Richards, Paypal, Chase Amazon and Capital One. Plaintiff requests that all marital debts in his name be paid “in full and terminated at the time of closing of the marital residence or, in the event the Court awards the Plaintiff a lump sum payment, at such time when the Plaintiff receives the lump sum.” He states that when he left the marital residence, Defendant “told [me] what credit cards I was to pay. I was to pay Best Buy, PC Richards, PayPal and Chase Amazon. [Defendant] would be responsible to pay the others.” Plaintiff states that he made payments totaling $2,405.79 towards the marital debt.10 He asks that he be reimbursed 50 percent of the payments made. Plaintiff attests that the largest marital debt (other than the HELOC) is a Capital One Visa credit card which he contends was used primarily by Defendant. Plaintiff states that Defendant was to have paid this account during the pendency of the action. The balance on the card on the date of commencement was $21,708.80. The balance on February 17, 2021 was $21,704.72, inclusive of $254.68 charged by Plaintiff on August 5, 2020 for household items purchased for his new apartment and $1,000 charged by him on January 9, 2021 as a down payment on a leased vehicle. Plaintiff requests all marital debt be divided equally and that he be permitted to offset the $1,254.68 which he charged on the Capital One card against arrears owed to him by Defendant. Plaintiff also requests that, if Defendant is to be given credit for the payments she made towards the credit cards, such credit be deducted from the arrears owed. Defendant requests that the Court direct each party to pay the debt in his/her own name. She states that the parties had approximately $45,000 in credit card debts. She notes that the Capital One card is in Plaintiff’s name and has a balance of approximately $21,000. She states that she has not charged on this card since Plaintiff moved out in March 2020. Defendant states that she has unspecified credit cards with balances of approximately $23,130. Defendant notes that she continues to pay the HELOC at a monthly cost of $678 as well as an auto loan from TD Bank in the amount of $355. She requests the Court to direct Plaintiff to pay 50 percent of these bills going forward. She also requests that 50 percent of the payments made by her since March 2020 be credited against any counsel fee award made in this matter. She contends that she paid a total of $20,575.35 towards the marital debt and asks that one half of this amount as well as one half of all payments made by her through the date of the Court’s decision be credited against any monies which Plaintiff may be awarded. The parties shall each be responsible for 50 percent of the marital debt, except for the HELOC which Defendant shall be solely responsible for if she opts to purchase Plaintiff’s interest in the former marital residence and their respective auto loans. Plaintiff shall be solely responsible for the $1,000 down payment on the auto lease which he charged as well as the $254.68 he charged for household supplies. Each party shall be entitled to be reimbursed from the other for the payments made towards their marital debt during the pendency of this action, except for the loans each has on their automobiles. Within 14 days of the date of this Decision and Order After Trial, counsel shall confer and agree on the adjustments to be made to the amounts owed by each party and how to best address payment of the debts. Tax Deductions for the Children Neither party requested the Court to address the tax deductions to which they may be entitled for the children. Nevertheless, the Court addresses the issue here to forestall future disputes over who gets the deductions. For the period of time that there are 2 children eligible to be taken as deductions, the parties shall each be entitled to take one child as a deduction. When there is only one child eligible to be taken as a deduction, the parties shall alternate which of them is permitted to declare the deduction. Defendant shall be entitled to the first such year and Plaintiff shall be entitled to the deduction in the second such year, alternating until no children are eligible to be taken as a deduction. Plaintiff shall be entitled to the tax deductions only if he is current on his child support obligations on the first day of the year for which the deduction is to be declared. Cars/Household Furnishings In his post-trial affidavit, Plaintiff suggests that each of the parties should waive their interests in the vehicle that the other drives as well as in the furnishings of the former marital residence. He suggests, further, that each remain responsible for his/her own auto expenses. In her trial submission, Defendant voices similar requests with respect to her vehicle, a 2014 Honda CRV with over 100,000 miles on it. She submits that the furnishings in the former marital residence have no extrinsic value but she requests that Plaintiff be directed to return a safe which she contends he took from the former marital residence and that he be directed to remove his personal belongings within 30 days. Each party shall retain their own vehicles. If a transfer of title to the Honda is required to place it in Defendant’s name, Plaintiff shall execute such documents as are necessary to effectuate the requisite transfer. Each shall be responsible for the expenses associated with his/her vehicle. Plaintiff shall return the safe to the marital residence. Plaintiff shall remove his personal belongings from the residence on a date mutually convenient to the parties within 30 days of the date hereof. Counsel Fees The Court previously awarded pendente lite counsel fees of $4,500 to Plaintiff in September 2020 as well as $6,500 awarded prior to trial as a retainer against fees and expenses anticipated to be incurred for conducting the trial. Plaintiff states that he has incurred fees of $28,594.14 through the date the trial submission was made. He seeks additional counsel fees predicated on the indisputable fact that he is the lesser monied spouse. He notes that he borrowed $5,000 using his mother’s credit card to pay for his counsel’s initial retainer while Defendant’s father paid her $10,000 retainer. Plaintiff notes that his attorney has attempted to settle this matter from inception only to have her overtures “met with great disdain and hostility”. He notes Defendant’s refusal to agree to pay spousal support or counsel fees while simultaneously requesting that additional income be imputed to him for calculating child support. Finally, he highlights the fact that Defendant persisted in her separate property claim to the former marital residence. Plaintiff requests, therefore, that the Court direct that Defendant pay him the $4,500 awarded in September 2020 (of which Defendant has paid only $350), with interest at 9 percent, as well as an additional $28,594.14. Defendant asserts that she has been unable to comply with the Court’s directives to pay the pendente lite award or the trial retainer. She requests that when the Court considers a counsel fee award to Plaintiff, the Court consider that she has paid “in excess of $20,575.35 in monthly minimum payments on our debts”. She asks that she be credited with 50 percent of the payments made towards the debts through the date of this Decision and Order After Trial against any counsel fee award made to Plaintiff. An award of counsel fees is within the discretion of the Court. In this regard, the Appellate Division, Second Department recently had occasion to re-state the law as follows: In exercising judicial discretion to determine counsel fee applications, the courts must take into account not only the financial circumstances of the parties but the circumstances of the case as a whole, including the relative merits of the parties’ positions and whether either party has delayed the proceedings unreasonably or engaged in unnecessary litigation. (see Marchese v. Marchese, 185 AD3d at 576; Piccininni v. Piccininni, 176 AD3d 880, 881; Jankovic v. Jankovic, 170 AD3d 1134, 1135). A less-monied spouse should not be expected to exhaust or spend down a prospective or actual distributive award in order to pay counsel fees as the result of unreasonable or excessive litigation conduct by the adverse party (see Prichep v. Prichep, 52 AD3d 61, 66). On the other hand, the more affluent spouse should not be treated as an open-ended checkbook expected to pay for exorbitant legal fees incurred by the less affluent spouse through excessive litigation or the assertion of unreasonable positions. Where a party has asserted unreasonable positions or failed to cooperate in discovery, and thereby increased the cost of the litigation, the court may make a counsel fee award in favor of the offended party or not make, or make a lesser award, in favor of the offending party (see Morille-Hinds v. Hinds, 169 AD3d 896, 900; Cravo v. Diegel, 163 AD3d 920, 923; Culen v. Culen, 157 AD3d 930, 933; Samimi v. Samimi, 134 AD3d 1010, 1013). Kaufman v. Kaufman, 189 AD3d 31, 74-75 [2nd Dept 2020] (emphasis added). The Court continued: An appropriate award of attorney’s fees should take into account the parties’ ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances” (DiBlasi v. DiBlasi, 48 AD3d 403, 405 [internal quotation marks omitted] ). The court may also consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation. (see Kugler v. Kugler, 174 AD3d 878, 879; Prichep v. Prichep, 52 AD3d at 64-65; Ciampa v. Ciampa, 47 AD3d 745, 748). Kaufman, 189 AD3d at 76-77. Under the circumstances of this action, and particularly given the nearly unsupported and intransigent claim by Defendant to a substantial separate property interest in the former marital residence, the Court awards Plaintiff a total of $20,000 in counsel fees, inclusive of the $4,500 previously awarded pendente lite and the $6,500 awarded as trial retainer, plus costs and disbursements. As noted, it was Defendant’s steadfast assertion of the separate property claim that compelled the trial of this matter. The award shall be paid within 90 days of the date of this Decision and Order After Trial. SUMMARY It is hereby ORDERED that Plaintiff’s equity in the property is hereby determined to be $217,176.08 and Defendant’s equity in the property is hereby determined to be $224,787.68, subject to an further credit for one half of any additional payments made by Defendant on the HELOC after January 2021 up through the date of this Decision and Order After Trial. Counsel shall calculate the amount of the further credit and adjust the equitable distribution amounts; and it is further ORDERED that Defendant shall have the option of buying out Plaintiff’s interest in the property or of listing the property for sale. If Defendant wishes to keep the house, she shall: (1) give Plaintiff written notice of her intent to pay him his equitable share (as adjusted pursuant to the additional directives herein) within 15 days of the date of this Decision and Order After Trial and (2) pay Plaintiff the full amount of his equitable share within 45 days of the date of the written notice of intent to buy him out; and it is further ORDERED that if Defendant fails to give timely notice of her intent to Plaintiff or fails to pay Plaintiff his equitable share, as adjusted, in the time allotted, the property shall be listed for sale at the agreed upon value with a real estate broker mutually agreed upon. If the parties cannot agree on a real estate broker, then the property shall be listed by both brokers selected by the parties as co-brokers. If the property does not sell at the listing price, the parties shall adjust the asking price as recommended by the broker. Defendant shall continue to pay, and shall be solely responsible for, without further credit, all carrying costs of the property due to her occupancy of the house while it is listed for sale. Neither party shall do anything to inhibit or impair the sale-ability of the property. In the event the property sells for less than the appraised value, then the net equity of both parties shall be reduced equally. If the property sells for more than the appraised value, then each parties’ interest shall be increased by 50 percent of the net difference; and it is further ORDERED that the parties shall share equally in each other’s retirement accounts, without regard to any loans that may have been taken against the balance(s). With respect to the New York State pensions, counsel for the parties shall arrange for the necessary Qualified Domestic Relations Order (“QDRO”) to be prepared and submitted to the Court within 60 days of the date hereof; and it is further ORDERED that Plaintiff is awarded 50 percent of the aggregate value of defendant’s 401(k) and 403(b) accounts, $17,179 plus or minus 50 percent of any gains or losses through the date of the execution of a Domestic Relations Order (“DRO”) by which the Court directs the transfer of the monies; and it is further ORDERED that the parties shall share the expense of the preparation of the QDRO(s) and DRO(s) on an equal basis. Counsel may, if they agree, adjust or set off the amounts to which each party is entitled in order to minimize the number of QDROs or DROs which need to be submitted and thereby reduce the costs associated with these transfers; and it is further ORDERED that Defendant shall pay maintenance to Plaintiff in the amount of $2,076.17 per month for a period of 48 months, commencing the first day of the first full month after the date of this Decision and Order After Trial; and it is further ORDERED that to the extent that Defendant is in arrears on paying the pendente lite spousal support ordered by this Court, the amounts owed shall be paid by Defendant to Plaintiff by adding $250 per month to the maintenance payments ordered herein until all arrears are paid in full. If the period of time required for Defendant to pay all arrears owed exceeds the 48 months of maintenance awarded to Plaintiff, then the payments towards the arrears shall increase to $1,000 per month (instead of $250 per month) until all arrears are fully paid; and it is further ORDERED that the CSSA guidelines yield basic child support payable by Plaintiff to Defendant in the amount of $1,283.33 per month. Plaintiff shall begin paying this amount of child support to Defendant commencing on the first day of the first full month after the date of this Decision and Order After Trial. Defendant is authorized to deduct the child support amount of $1,283.33 per month from the base amount of maintenance of $2,076.17 per month during the 48-month period before adding the payment amount towards the arrears. Defendant shall not, however, deduct any add-on expenses without prior consent from Plaintiff. Defendant shall notify Plaintiff in writing of her election to deduct the monthly child support amount from the monthly maintenance amount within of this Decision and Order After Trial; and it is further ORDERED that the parties shall share in the costs of typical add-ons on a pro rata basis. Plaintiff shall be responsible for 40 percent of these items. Defendant shall be responsible for 60 percent of these items; and it is further ORDERED that the parties shall share all college and college related expenses, which shall include tuition, room, board, application fees, all mandatory fees imposed by the college/university, health services fees, books and supplies, laptop computers or other resources required, extra-curricular fees, expenses incurred by the parent and child to visit schools in connection with the college search, and travel expenses to and from the college/university into which the child matriculates, 60 percent payable by Defendant, 40 percent payable by Plaintiff. The tuition and room and board expenses for college/university shall be capped at the then highest amount charged by SUNY for tuition and room and board. To the extent that Plaintiff actually pays (i.e. has paid his pro rata share) for board for a child, he shall be permitted to reduce his monthly child support accordingly; and it is further ORDERED that all accounts held for or in the name of the children which were earmarked by the parties as college or educational accounts shall remain the property of the children and shall be used exclusively for the children’s educational pursuits. Both parties shall be entitled to complete information concerning the accounts, including the institution where the accounts are maintained and the amounts held in the accounts, on at least an annual basis. Each party shall inform the other, at least 5 days in advance and in writing, whenever any monies are to be withdrawn from these accounts; and it is further ORDERED that each party shall retain ownership of their own vehicles and be responsible for the expenses associated with his/her vehicle. If a transfer of title to the Honda is required to place it in Defendant’s name, Plaintiff shall execute such documents as are necessary to effectuate the requisite transfer; and it is further ORDERED that Plaintiff shall return the safe to the marital residence and shall remove his personal belongings from the residence on a date mutually convenient to the parties within 30 days of the date hereof; and it is further ORDERED that the parties shall each be responsible for 50 percent of the marital debt, except for the HELOC and their respective auto loans. Plaintiff shall be solely responsible for the $1,000 down payment on the auto lease which he charged, as well as the $254.68 he charged for household supplies. Each party shall be entitled to be reimbursed from the other for the payments made towards their marital debt during the pendency of this action, except for the loans each has on their automobiles. Within 14 days of the date of this Decision and Order After Trial, counsel shall confer and agree on the adjustments to be made to the amounts owed by each party and how to best address payment of the debts; and it is further ORDERED that the parties shall each be entitled to take one child as a deduction for the period of time that there are 2 children eligible to be taken as deductions. When there is only one child eligible to be taken as a deduction, the parties shall alternate which of them is permitted to declare the deduction. Defendant shall be entitled to the first such year and Plaintiff shall be entitled to the deduction in the second such year, alternating until no children are eligible to be taken as a deduction. Plaintiff shall be entitled to the tax deductions only if he is current on his child support obligations on the first day of the year for which the deduction is to be declared; and it is further ORDERED that Plaintiff is awarded a total of $20,000 in counsel fees, inclusive of the $4,500 previously awarded pendente lite and the $6,500 awarded as trial retainer, plus costs and disbursements, which Defendant shall pay to Plaintiff within 90 days hereof; and it is further ORDERED that all other prayers for relief not specifically addressed herein are denied; and it is further ORDERED that Plaintiff’s counsel shall settle Findings of Fact, a Judgment of Divorce and all other documents necessary to allow the Court to enter Judgment in accordance with this Post Trial Decision and Order, on at least 5 days notice, within 35 days of the date hereof. Failure to timely settle the Findings of Fact and Judgment of Divorce may result in this action being dismissed, or other appropriate sanctions. Dated: June 2, 2021
