Lipszyc v. Lipszyc

DECISION AND ORDER AFTER TRIAL Procedural History The Plaintiff-wife, Brocha Lipszyc (hereinafter “wife”) and the Defendant-husband, Shmuel Lipszyc (hereinafter “husband”) were married on August 28, 1988 and there are eight (8) children born of the marriage, two (2) of whom are unemancipated, Baruch, age 19 (born March 18, 2003) and Gittel (born December 27, 2004) age 18. The wife commenced the within action for divorce on January 10, 2018. At that time, the parties were married for 30 years. During pre-trial proceedings, the wife brought an application seeking pendente lite relief on September 25, 2019. By decision dated February 21, 2020, this court awarded the wife temporary spousal support in the sum of $3,333 per month in direct support and child support in the sum of $2,266 per month. Additionally, as discussed herein below, during pretrial proceedings in this matrimonial action, the wife commenced a plenary action against the husband and his employer, The Chabad of Woodbury, alleging fraud and seeking the imposition of a constructive trust relating to the real property located in Woodbury, N.Y., where the parties resided and operated a Chabad for over twenty (20) years. By decision dated June 24, 2021, the Court (Capetola, J) granted the defendants’ motion to dismiss the action. In November, 2017, the wife vacated the Chabad house with the parties’ 16 year old daughter, Gittel, and moved into a rental apartment in Brooklyn. Thereafter, the parties stipulated to joint legal custody of both children with the wife having primary residential custody of Gittel and the husband having primary residential custody of Baruch. Prior to trial, the parties entered into a “So Ordered” Stipulation resolving the issues of custody and parenting time. Additionally, the parties consented that the issue of counsel fees shall be determined by the simultaneous submission of written papers along with their respective post trial briefs. Accordingly, the issues for this court’s determination are: (1) equitable distribution of the marital assets, (2) child support, (3) maintenance, (4) husband’s motion for a downward modification of the pendente lite support order, (5) husband’s request for reapportionment of expert fees, (6) contempt, (7) sanctions, and (8) counsel fees. The trial in this action began on July 6, 2021 and continued on July 7-9, 2021, July 20,2021, July 22, 2021, August 8-12, 2021, September 13, 2021, October 5, 2021, October 27-28, 2021, November 22-23, 2021, December 13, 2021, December 15, 2021, January 25, 2022, February 16, 2022, February 22-23, 2022, March 21, 2022, and March 24, 2022. During this 25 day trial, the husband was represented by Jeffrey S. Schecter, Esq. and Joey Michaels, Esq., and the wife was represented by Eyal Talassazan, Esq. At trial, the court granted the wife’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 nine (9) witnesses testified at trial: the wife, the husband, Andrew Kastein, Dr. Mandelstam, Douglas Sosnowski, Rabbi Teldon, Chaya Teldon, David Gresson, and Wife’s rebuttal witness, Rosalia La Bate. In lieu of closing statements, the parties submitted post-trial briefs. Findings Of Fact The Wife At the commencement of trial the wife was 50 years old, and born in Israel. She described herself as observing “ultra orthodox Judaism,” explaining she follows the laws of the Torah, observes all 613 Commandments, maintains a Glatt Kosher home and follows the strict laws and requirements, including the dress code. She testified she and the husband have eight children and eight grandchildren. She described the “role of a woman” as a mother and wife in an ultra-orthodox marriage as “the essence of the home.” She explained that the husband’s role is as a “provider” and “head of household” in this “male dominant, gender separated religion.” With regard to her education, she testified she graduated Yeshiva of Brooklyn High School in 1988 and three months later she married the husband. She has no other education after High School. She met the husband in May, 1988 through a “matchmaker” when she was 17 years old and the husband was 23 years old and, after six dates, he proposed. She worked for about 7-8 months when they were first married teaching Kindergarten but after the first of their eight children was born, she no longer worked. When she met the husband, he was studying in a Yeshiva University and received his Rabbinical Certificate which enabled him to become a Rabbi of a Synagogue or a Chabad. She explained that as a Rabbi, her husband was asked to become a “Shliach,” which she explained is a leader of a Chabad. She defined a Chabad as a “religious Sect” consisting of seven leaders (known as Rebbi’s) who organized the “Chabad movement.” She testified that from 1992 until 2017, as an ultra orthodox married couple, the husband’s title and position was that of a Shliach, she was a “Shlucha” and the parties together were referred to as a “Shluchim.” She explained that it is common practice in their religion for the leader of the Chabad to “send out couples all over the world to promote Judaism and start a Chabad” in all areas including those that are remote. The role of the chosen couples, the “Shluchim,” is to open centers (known as Chabad) for Judaism all over the world. According to the wife, the husband’s role as a Shliach was as a director of the Chabad, to lead services, organize and teach Hebrew School, solicit donors, arrange holiday events, and provide counseling. The parties moved to Chicago after the husband was offered the position as a Shliach. The parties’ two eldest children were born in Chicago. She explained once the husband became a Shliach, their family relocated several times to start a Chabad in various locations where there was a need. Specifically, after two years, they moved from Chicago to Glen Cove, NY when the husband was offered the position as the Shliach of the Chabad of Glen Cove. They rented a home for two years in Glen Cove and resided there until 1994 when they were assigned to a new Chabad in Plainview. They purchased a home at 15 Westminster Road, Plainview, NY using the proceeds from the sale of the Chicago property. They lived in the Plainview home for 5 years until August 18, 1999, when the husband was chosen as the Rabbi at the Chabad of Woodbury. The parties opened The Chabad of Woodbury and they purchased a seven bedroom home located at 678 Woodbury Road (hereinafter “the Chabad house”). This property was to be used as both their family residence and the Chabad. The purchase price was $921,000. They took a $650,000 mortgage and used the proceeds from the Westminster Road property to fund the down payment. The wife testified that the balance due on said mortgage as of the date of trial was $13,500. The husband’s duties as the Chabad Rabbi were to organize and run the Hebrew school, hire the staff including-the Cantors, organize high holiday services and events, teach classes, perform baby naming services and Bar and Bat Mitzvah services, and provide marriage counseling for the congregants. The wife lived in the Woodbury property with the husband and their eight children from 1999 until December 2017 when she moved to Brooklyn with the child Gittel. She testified the mortgage was paid from the husband’s salary as a Shliach and from funds in their joint account. On August 26, 1999 (8 days after the parties purchased the property) the husband and wife together transferred title to the Woodbury property from their names to the Chabad Lubavitch of Plainview, Inc. The wife stated that by transferring the property to the Chabad, the Chabad received tax exemption status. Despite such benefit, she is asking this court to find this transfer to be “an act of dissipation.” She further testified that the mortgage and utilities for the Woodbury property were paid from the parsonage received by the husband as the Chabad’s Rabbi and said change of title to the Chabad rendered the property “tax free” to the parties herein. It is noted that during the matrimonial litigation, the wife commenced a related plenary action against the husband and the Chabad in the Nassau County Supreme Court seeking to set aside the aforementioned transfer of the Woodbury property alleging fraud, constructive trust and damages in the event the property is sold. The defendants in that action (the husband and the Chabad) filed a motion pursuant to CPLR §3212 for an order granting summary judgment and dismissing the action. As discussed more fully hereinafter, the motion was granted and said action was subsequently dismissed by decision and order dated June 24, 2021 (Capetola, J.). The wife testified that this court should award her counsel fees for the aforementioned plenary action despite the dismissal of the constructive trust action and despite the fact that the parties have no ownership interest in said real estate, she seeks a distributive award of said property. The wife described her thirty (30) year marriage as a “challenging and abusive relationship” where she was ” manipulated, disrespected and ridiculed.” She explained she didn’t have a voice throughout what she described as a “ toxic” marriage. She volunteered to teach classes at the Chabad on the Code of Jewish Conduct, Jewish Mysticism and Bible classes. She believed the husband was “jealous” of her when she volunteered to lead Chabad events and teach classes and he continued to mock, insult and ridicule her and was “jealous” of any attention she received. As a result, they attended marriage counseling in 2005 and 2013 however their relationship did not improve. In 2016 she became self-employed selling a curriculum as a “lifestyle coach” for women. According to her testimony and the documents in evidence, her income was as follows: 2012: $16,934, 2013: $28,000,2014: $10,400, 2015: $10,000, and 2016: $22,437. She stated her income for 2017 was $2,000, in 2018 she earned $4,500, in 2019 her income was $5,500 and 2020 she earned $1,000. The court notes such testimony is in conflict with her W-2 statements in evidence. The wife testified she believed the husband’s income for the years from 2012 until 2017 to be approximately $300,000 per year. Although she filed joint tax returns with the husband during the marriage, she testified she did not review the returns before she signed them. The court notes the joint tax returns in evidence reflect income from Chabad for the years 2015 through 2018 was as follows: 2015: $81,725, 2016: $36,414,2017: $45,219, 2018: $11,000, and these figures do not include the $32,600 “parsonage allowance” as identified by the neutral forensic accountants and included as income in their report. The wife testified their family expenses were paid from the Chabad account as part of what she referred to as “parsonage” and considered such paid expenses to be the husband’s “salary.” Such expenses included the children’s private and boarding school tuition, camp, a driver, a house cleaning service, household utilities, mortgage, landscaping, and Kosher food items. Since she was a signatory to the Chabad account at Chase Bank (#3075) throughout the marriage, she would often write the checks to pay the aforestated expenses. In 2018, she was removed as “signatory.” The wife further testified that she and the husband would often use their savings to supplement their expenses in order to maintain the aforementioned lifestyle. She believes, based upon her review of the credit card statements and cancelled checks provided during discovery, the husband earned $300,000 per year prior to the commencement of the instant divorce action. She contends the family’s annual expenses were $300,000, however, the Statement of Net Worth in evidence sets forth her monthly projected expenses to be $12,281. She offered a self created “2016 expense chart.” However, on cross examination she was unable to distinguish between the family expenses and the expenses of the Chabad. She described the “arrangement” between the husband and the Chabad regarding his income as “he can take money as he needed.” She testified to various loans made by the parties to the Chabad and from the Chabad to the parties. She was told by the husband that he would often give loans to the Chabad which would be repaid later when fund-raising donations were received and funds were available to pay back the loan. She testified that various donors would also give loans to the Chabad when needed. Additionally, the wife testified that on April 8, 2014 the husband paid back three loans received from family members totaling the sum of $105,000, which she believed was a method or scheme the husband used to hide money in the accounts of family members. She further testified to learning of two checks issued by the husband in 2014, during the marriage, payable to Culdrom Holding for $45,000 and M. Schluter for $3,500. She was unaware the husband withdrew these funds from the account until she began trial preparation. The wife admitted on cross examination that they would often use their personal accounts to supplement their income. The wife testified as to several transfers of marital assets made by the husband, during the marriage, of which she was unaware. She testified to a large transfer of funds in 2014 from their joint account into an account in the husband’s name alone in the sum of $249,900 and was unaware of this transfer until it was discovered during pre-trial proceedings. She is asking the husband be found in contempt and sentenced to a period of incarceration for his failure to pay child support and based upon his transfer and use of marital assets post commencement which she contends is a violation of the Automatic Orders of this Court. It is noted that during cross examination, the wife conceded she also withdrew marital funds post commencement. Specifically she admitted to withdrawing $80,000 from a joint account which she used to pay legal fees and for her living expenses without consent of the husband or permission of the court. With regard to the parties’ retirement accounts, the wife testified she maintained retirement accounts at Vanguard, Meridian Funds, and Sterling Roth. She stated the husband maintained retirement accounts at Vanguard, Fidelity and Buffalo Funds. The wife contends that the husband used his retirement assets in the Vanguard account to pay his pendente lite support obligation and counsel fees awarded to the wife’s attorneys, thus dissipating a marital asset. She further contends that in addition to the retirement assets, the husband made several investments during the marriage including an upstate vacation home (Loch Sheldrake home) and a building in New Jersey but is unaware of the status of these assets. The wife conceded that, like the husband, she also withdrew funds from her retirement accounts to cover her monthly living expenses, depleting her ROTH IRA valued at $69,000 as of the date of commencement to $13,650 as of the time of trial. She further admitted on cross examination that post-commencement, she withdrew the sum of $26,653 on July 25, 2019, from her Sterling Wealth Management Account in order to pay her attorney fees. With regard to the parties’ eight children, the wife testified that throughout the marriage, she was the sole caregiver and attended to their every need and explained the husband contributed “minimally” to the care of the children. She testified that the husband did not attend doctor visits, he did not drive the children to school or to any appointments, he did not help with meal preparation, baths, laundry or house cleaning. She did all the food shopping and observed a Glatt Kosher home which, according to her, cost 3-4 times more than any other supermarket. She alone cared for the children and the home. According to the wife, the only contribution made by the husband toward child-rearing was to assist their sons in the study of Talmud. The pendente lite order of February 21, 2020 directs the husband to pay the wife the total amount of $5,599 in combined child support ($2,266) and maintenance ($3,333), subject to reallocation. The wife testified she received the full amount of the ordered support until April 2021 when the husband began paying her a total of $1,000 per month. She filed contempt applications which were referred to trial and the husband filed a downward modification application. At trial, the wife testified that based upon her prior lifestyle as a Shlucha, she should be awarded the sum of $13,000 per month in combined support, stating said amount is “based upon what I believe are my needs.” The wife testified she is unable to support herself and daughter and she is incapable of earning a sufficient income to maintain the lifestyle she enjoyed during the 30 year marriage. Although she is currently paying $2,000 per month for rent, she testified her projected rent for a four bedroom apartment in Brooklyn is $4,000 per month. When asked why she and her daughter Gittel require a four bedroom home, she replied “I feel I need it.” She further testified that despite the court order (Capetola, J.) dismissing her plenary action seeking a constructive trust against the Chabad property transferred by the husband and wife in 1999, she believes said property should be deemed a marital asset subject to equitable distribution. At the close of her direct testimony, the wife stated she is asking for the following relief: (1) an award of lifetime maintenance, (2) an award of child support for the unemancipated child, Gittel, (3) an award of 50 percent of what would be the current value of the husband’s retirements assets and joint bank accounts, which she contends he has since depleted, (4) an order directing the husband to pay 100 percent of all credit card debt accrued as of the date of commencement, which she contends accrued as a result of his failure to pay his court ordered temporary support obligation, (5) an award of 100 percent of all of the assets of the marriage including the $105,0000 in funds invested or loaned in 2014, (6) an award of 100 percent of the value of the Chabad, (7) an award of counsel fees in the sum of $300,000 incurred by the wife in this divorce action and the related plenary proceeding she filed which has since been dismissed, (8) an award of expert fees incurred by the wife; and (9) a finding of contempt and incarceration against the husband. The Husband At the time of trial, the husband was 56 years old. He explained he was raised in a Chabad household and the wife was raised in an “ultra-orthodox” household. He and the wife met through a “matchmaker” when he was twenty-three (23) years old. One of the conditions of marriage was that the parties would form a “Shluchim.” He testified that the wife was supportive of his life mission to be part of a Shluchim and work as a Chabad Rabbi and in 1988, he and the wife were married. He stated the wife was excited to travel and organize a Chabad center in Chicago, Glen Cove, Syosset, and Woodbury where he taught Hebrew and the Talmud, organized fund-raising for the Chabad and performed circumcisions. He testified that despite the wife’s testimony that her role at the Chabad was “minimal,” she was in fact treated as an equal, performing various duties including preparing for Shabbat and holiday meals, hiring staff, paying bills, and as the program director, she prepared and taught Hebrew school classes. He testified that when the wife left him in 2017, he was devastated and her departure adversely affected his employment because he was no longer part of a Shluchim. He further explained that as a couple they are considered “role models” and when the wife left she ended that relationship and consequently his job as the Chabad Rabbi was given to his older son. He further testified that following her departure, the Chabad received fewer donations, the Hebrew school closed, and women no longer attended any of the programs. He denied the wife’s allegations that he was abusive and the home was toxic and stated that he was the victim of the wife’s abuse during the marriage. The husband testified there are eight (8) children born of the marriage, two of whom are unemancipated, Gittel age 18 and Baruch, age 19. From 1988, when the parties were married until 2017, the parties resided together. The husband testified that in 2017, the wife left the Chabad house and moved into an apartment in Brooklyn with the child, Gittel, whom she home schools. Since that time, Gittel has resided with the wife and the parties’ son Baruch resides with him. The husband stated the wife’s testimony that she was the primary caretaker of the children is inaccurate. He explained throughout the marriage he cared for the children when the wife was not present. Specifically, he often did the family’s food shopping, took the children to school and religious services, and helped them with their homework. The husband testified he has been employed as a Chabad Rabbi since 1994. He stated he lost his job in 2020 when the Covid-19 pandemic caused the Chabad to close and has been unemployed ever since. He further explained that when the Chabad reopened, the board hired his son (Rabbi Shalom) as the Rabbi, leaving him unemployed. He further admitted to making “minimal efforts” to seek employment and did not look for any job other than that of a Rabbi. He further conceded that since March, 2021, he did not contact any employment agencies or seek out employment on any internet job sites. He explained his highest level of secular education is “less than Junior High School” and did not receive a NYS Regents diploma or GED. He explained that given his age, his poor mental heath condition, his lack of education or training, and his belief that religious organizations such as a Chabad or synagogue are hiring younger, married Rabbi’s, he is unlikely to find employment commensurate with his experience as a Chabad Rabbi. He did, however, testify that if he were healthy he could teach Hebrew. Regarding his health, he is currently being treated by a psychiatrist and has been prescribed Wellbutrin, Abilify, Ambien, Xanax and Nalprexonehel. He explained the side effects of such medications are tiredness, poor memory recall, inability to sleep, suicidal thoughts, and lack of energy. When he was asked if he could work as an Uber driver, he stated he is unable to drive for long periods of time. He stated he is “too anxious” and suffers from “panic attacks” and doesn’t believe it is possible for him to work. As a result of his anxiety and depression, he enrolled and participated in two rehabilitation programs, one in Pennsylvania and one in Tennessee. The husband testified he often borrowed money from his family who also sent food and further testified his father loaned him money to pay his legal fees. He admitted on cross examination that he could have used that money to pay his wife support, but he did not. As set forth hereinafter, during his direct case, the husband offered the testimony of his treating psychiatrist, as a fact witness, in support of his alleged mental illness, depression, anxiety and inability to work. When asked about his employment plan going forward, he testified “I don’t have a plan, I don’t know what in going to do, I’m in trouble.” With regard to the husband’s employment and his support obligations, the wife requests that the court impute income to the husband commensurate with the Chabad’s income for 2018 in the amount of $387,213, since she believes the husband and the Chabad are “one and the same.” The court, in its pendente lite decision dated February 21, 2020 determined the husband’s income to be $200,000. Thereafter, the husband filed a motion seeking a downward modification of the pendente lite support order. In support of his downward modification application, the husband asks the court to consider his age, health, lack of secular education and his inability to work as part of a Shluchim since he and the wife are no longer part of an “intact” marriage. The husband testified that since the Chabad was a not-for-profit organization, they received the benefit of having the Chabad pay for many of their family’s expenses such as a Yeshiva allowance for the eight (8) children to attend private school, automobile expenses, mortgage and utilities payments, landscaping services, and household repairs. He explained the chart of expenses offered into evidence by the wife does not set out their “personal” expenses, but rather the expenses of the Chabad. With regard to his salary, he explained he is paid only after all of the Chabad obligations are paid. He offered the parties’ joint tax returns which set forth the following income: 2015: $25,000, 2016: $27,438, 2017: $45,219, which included capital gains from the sale of mutual funds in the sum of $26,170, 2018: $14,869 plus as set forth in Schedule D, the husband withdrew from the Vanguard account the sum of $35,000; 2019: $39,775, which included capital gains from the sale of mutual funds held at Vanguard. He testified he used the Vanguard funds to pay bills, pendente lite support, and counsel fees. With regard to his pendente lite support obligations, the husband testified although the court imputed income to him of $200,000 based upon the gross profits of the Chabad for the year 2018 in the sum of $387,213, he never actually earned such income. He testified that as a result of the imputed income, he sold some of his investments in the Vanguard accounts and borrowed money from family to pay child support and maintenance. He explained that despite the pendente lite support award of $5,699 per month, he could only afford to pay the wife the total amount of $ 1,000 per month since March 2021. In support of his testimony, he offered bank statements which set forth his salary deposits made into his BNB account totaling $14,000 for the months of April, 2018 through December 2018. He further admitted that despite the court’s order directing that he pay the wife’s attorney the sum of $30,000 in counsel fees, he failed to do so but paid his own counsel fees. He conceded he continued to use the Chabad credit card to pay his expenses even after he was no longer employed as the Chabad Rabbi. The wife testified she believed the husband transferred money to his parents and his brother throughout the marriage in an effort to hide marital assets. She offered canceled checks in the sum of $35,000, $45,000 and $25,000 totaling $105,000. In response, the husband explained that throughout the marriage he borrowed a total of $105,000 from his parents and $40,000 from his brother. He explained that in 2014, during the marriage and four years prior to commencement of the within action, he repaid these loans. With regard to his monthly living expenses, the husband testified the Chabad pays the mortgage for the property as well as the monthly utilities such as electric, gas and phone bills. He explained he is receiving unemployment income and uses credit cards to cover any additional monthly expenses. The husband is seeking a downward modification of the pendente lite support award and a prospective support award to the wife commensurate with his current income. He further testified the wife’s expenses are inflated and since she lives with one child, her needs are far less than what is documented on her Net Worth Statement. Douglas Sosnowski Mr. Sosnowski, the director and partner of Brisbane Consulting Group, LLC., was appointed by the court as a neutral forensic expert to prepare a “Lifestyle Analysis” of the Lipszyc household for the period from December 31, 2012 through 2019. He was qualified as an expert on consent of both parties and his report dated June 29, 2021 was admitted into evidence. In preparing his report of the seven (7) year period, he looked at the following documents: bank statements from 20 different banks, investment statements from Vanguard, credit card statements for 53 credit cards, Quickbooks file from the Chabad, and deposits from the wife’s life coaching business. He created spreadsheets for the years 2018 and 2019 and testified he was instructed to “assume” all deposits were income from the Chabad. He admitted that if the parties withdrew funds from their saving accounts or retirement accounts and deposited them into the Chabad account he was unaware and deemed said funds to be “income.” He explained that if he had that information he would not have included said funds as income. He admitted that certain deposits for the wife’s income and rental income were erroneously included as income to the Chabad and if he had that information at the time he wrote his report, the income amount would be lower. In preparing his report, Mr. Sosnowski spoke with the husband and wife. He did not speak to the parties’ accountant or anyone on the Chabad Board of Directors. In his report at page 8, Mr. Sosnowski summarized the parties’ spending as follows: “During the analysis period, household expenses averaged $208,800 with no observable trends. Expenses for the year ended December 31, 2012 were the lowest at $136,500 and spending reached $265,500 for the year ended December 31, 2018.” With regard to income, he found as follows: “Excluding 2014, average income from the Chabad was $149,600 which is approximately $59,200 lower than household expenses. The shortfall was primarily funded through a reduction in savings and investments. In seven of eight years during the analysis period, transfers from savings and investment accounts exceeded transfers to saving and investments.” In addition to the aforementioned report, a letter from Mr. Sosnowski dated March 23, 2021 containing the net asset value of the Chabad as of the date of marriage and the date of commencement was also admitted into evidence. Andrew Kastein The wife called Andrew Kastein as her witness to testify in support of her contention that during the marriage, the husband acquired an interest in an entity known as Global Team 2 Management. Mr. Kastein stated he is a business partner in said entity. He testified that the husband has a 5 percent interest in the business but does not have an interest in 4313 Main Street Management LLC, which acquired the property at the same address. He further testified that the husband made a capital contribution to the LLC in the sum of $90,000 at the time but did not know whether the husband has an interest in any of the related entities and does not know whether Global Team is holding any money or property for the husband. Dr. Arnold Mandelstam Dr. Mandelstam is a Board Certified psychiatrist who was called to testify by the husband as a fact witness. He has been treating the husband for anxiety and depression for the past 16 or 17 years. He testified as to the husband’s “reduction in his overall function,” finding that he manifests symptoms such as confusion, poor sleep, poor concentration, irritability, and inability to handle his daily duties. He attributes the husband’s inability to function to his failure to secure employment. He determined the husband is partially responsive to the medications prescribed which are: Abilify, Xanax, Ambien, and Wellbutrin, which have significant side effects thus limiting his ability to work. Rabbi Tuvia Teldon Rabbi Teldon testified he has worked for the Chabad Lubavitch of Long Island for the last 44 years and is the Regional Director. He employs 55 Rabbis and their wives in local Chabad Centers in Nassau and Suffolk County. He offers support and adjudicates disagreements between Rabbis. He explained the purpose of a Chabad is to educate and enhance Jewish communities to promote Jewish education throughout the world. A requirement of a Chabad is for the Rabbi to be married, creating what is called a Shluchim. He explained a Rabbi/Shliach is an “emissary of the Rebbi,” the Shlucha is the wife of Shliach and together they form a Shluchim. The role of the Rabbi is to set up the Chabad, teach its’ congregants Judaism, morals, ethics, raise funds to support its growth and build up the Chabad’s presence. The duties of the wife, called the “Rebbisen”, include organizing a Nursery school, a Hebrew school, and preparing for events and holidays. He explained the “Chabad model” is unique in that the wife has a very important role in community outreach and raising children. He explained they are paid a salary from their fund-raising efforts in the community. Rabbi Teldon has known the husband and wife since 1993 when they moved to Long Island. He attended numerous events at their Chabad and described the wife as very involved in the Woodbury Chabad, taking on an active role in planning events and teaching classes. Rabbi Teldon testified that since the wife moved out of the Chabad, the husband’s demeanor changed. He appeared “depressed, drained and not the same person.” He explained this directly impacted the Chabad’s membership stating “any Chabad house without a working couple is missing an important ingredient.” Chiaya Teldon Mrs. Teldon is the wife of Rabbi Teldon and co-founder of the Chabad of Long Island. Her role is to support her husband, conduct Chabad programs and teach seminars to the wives who are married to Chabad Rabbis. She has known the husband and wife for over 20 years and has attended various programs offered by the wife, as well as many events and celebrations at the Chabad and was a guest speaker at the wife’s “Woman’s Study Group.” She described herself as a Shlucha and explained the role of a Shlucha is to teach, be a resource and an example for the community. She further described her role as the “female counterpart to the Rabbi.” She observed a decrease in the participation of women at the Chabad, since the wife moved out of the Chabad and explained that the programs and classes once offered by the wife no longer exist. She testified that the parties herein were hired “as a couple” and believes it is “vital to have both male and female participation.” David Gresen The husband hired Mr. Gresen to review the neutral court ordered expert report of Brisbane. At trial, the parties stipulated that he was qualified as an expert in the field of Valuations. Mr. Gresen testified that a Chabad is not a traditional business nor can it be compared to other clergy-type occupations since clergy members are paid by the Archdiocese and a Rabbi’s salary is derived from the temple congregants’ donations and membership fees. Mr. Gresen disagreed with the Brisbane methodology, which he opined, understated the wife’s duties by classifying her as a “part time administrator” or “clerk.” He further disagreed with the calculations pertaining to the husband’s income for the years 2018 and 2019 since the documents he reviewed determined that the husband often used savings accounts to supplement income which he said was improperly included as income in the Brisbane report. He looked at the bank deposits and statements in evidence and the spreadsheets created by Brisbane and determined that the actual amount attributed to income for 2018 was $14,000 rather than $49,000 and in 2019 it was $10,000 rather than $107,751. He further disagreed with the Brisbane report which added to the husband’s income the sum of $32,000 per year as a “parsonage” allowance which he stated is a non-taxable housing allowance traditionally afforded to clergy members. He testified since the husband and wife here did not pay for rent or any of the utility or car expenses, this parsonage allowance was improperly added to the parties’ income. Rosalia LaBate The wife called Ms. LaBate as a rebuttal witness and per the parties’ stipulation, Ms. LaBate was qualified as an expert. Ms. LaBate was hired by the wife’s attorney to review and critique the lifestyle and income stream analysis created by the neutral expert, Brisbane. In addition to the Brisbane report dated June 29, 2021, Ms. La Bate reviewed the draft report, the wife’s 2016 expense chart, credit card statements and bank statements and offered a rebuttal report in evidence. Her findings were based on information provided by the wife and her attorney which included a history of spending patterns and nature of expenses. She did not confer with the husband or his counsel. She further conceded that she had never been retained to value a Chabad or religious institution. Ms. LaBate concluded the Brisbane report lacked foundation, was incomplete and unreliable. She further commented that the assumptions made by Brisbane relative to parsonage did not take into account the size of the home and omitted many of the family expenses such as clothing, unreimbursed medical expenses, tuition not paid for by the Chabad, vacation expenses, and extracurricular expenses of the children. She further testified that she looked at the family’s spending and actual expenses for housing, maintenance, repairs, food, cleaning service, and drivers, and determined the husband’s income stream is more likely to be in the range of $390,000, although she did concede that the parties supplemented their expenses with savings and retirement assets. Conclusions Of Law The Divorce In accordance with the trial testimony and the Preliminary Conference Order dated January 24, 2019, the wife is hereby granted a Judgment of Divorce pursuant to DRL §170 (7). Imputation of Income and Downward Modification To be entitled to a downward modification, one must provide evidence of their financial circumstances, present credible evidence that his symptoms or physical condition prevent work, and show that lie had diligently sought re-employment relative to his qualifications and experience. Matter of Brady v. White, 158 AD3d 748, 748 (2018). In doing so, the claimant has the burden of establishing the existence of a substantial change in circumstances that warrant such modification. Krup v. Fehr., 24 Misc.3d 1219(A) at 3 (2009). In Lopez v. Ajose. 7 Misc.3d 1024(A) at 17 (2005), the court denied the defendant’s downward modification motion because the change in circumstance resulted from the defendant’s voluntary actions, which did not establish unanticipated or unreasonable circumstances. The parties’ physical and mental capabilities are considered when determining their ability to earn a living. Brandt v. Brandt., 36 Misc. 2d 901 at 902 (1962). Further, a court may impute income to a parent based on that party’s failure to seek more lucrative employment consistent with their education, skills, and experience. Matter of Curley v. Klauson., 110 A.D.3d 1156 at 1159 (2013). Furthermore, in Ketcham v. Crawford., 1 A.D.3d 359 at 360 (2003), the father was terminated from his job and received unemployment benefits for six months until he ultimately found employment in a similar field but only as a part-time employee, thereby making significantly less. The court found that the evidence “demonstrated that the father’s employment was terminated through no fault of his own, and that he diligently made a reasonable faith effort to obtain employment in his field and should have been granted a downward modification.” Id at 360. Similar to Cantlin v. Cantlin., 126 A.D.2d 594 at 596 (1987), where the court found that the husband’s voluntary retirement from the fire department, which results in a substantially lower income, made it acceptable for a downward modification that parallels the decrease in salary. Further, in the case of J.S. v. J.S., 19 Misc. 3d 634 at 650 (2008), the court discussed that the age of the defendant and how he was near retirement made it unlikely that he would accumulate the same assets as when he was younger, making it unattainable to impute income. Furthermore, in H.G. v. N.K., 40 Misc.3d 1242 (A) at 29 (2013), the court found that the husband’s age (64) and his absence from the workforce for over eight years rendered his skills in his employment field outdated thereby making his employment in a similar capacity unlikely. Thus the court found a downward modification of maintenance was appropriate. Id at 41. The court in it’s February 21, 2020 decision provided that the wife’s temporary support award was subject to reallocation at trial. The court in it’s decision dated July 28, 2021 denied the husband’s application to reduce his support obligation and noted that inequities in a pendente lite award can best be remedied at trial. Here, both parties ask this Court to impute income to the other in determining and calculating post-judgment maintenance and child support. The wife contends the husband and the Chabad are one and the same, and therefore the court should use, at a minimum, the imputed income of $200,000 to determine his post-judgment child support and maintenance obligation. She further seeks an award of lifetime maintenance. The wife disputes the husband’s claim that lifetime maintenance is not warranted and argues she is unable to earn an income substantial enough to provide for herself. The husband argues the wife’s position is unreasonable and her rationale provides for an inflated and false income analysis that was not supported by the evidence at trial. He argues, and the Brisbane report confirms, that throughout the marriage the income of the Chabad and that of the husband were often interwoven and conflated, making it difficult to parse out the accurate and precise income of the husband for purposes of determining child support and maintenance. He further argues that as a Chabad Rabbi, he has never earned the income alleged by wife and asks the court to consider the testimony of both parties that they often used their savings and retirement accounts and borrowed from family members to supplement their expenses. He also asks the court to impute income to the wife based upon her employment history, skill set, and ability to find employment commensurate with prior experience. The husband testified that he has never earned a salary of $200,000, the amount used by the court to impute income to the husband in its pendente lite award. In fact, the husband testified he received a salary of $12,000 per year from the Chabad plus “benefits” which included household expenses and tuition payments made on behalf of the Chabad for such living expenses as the mortgage, utilities, automobile expenses, tuition for the children, homeowner and medical insurance and credit card reimbursements. The joint tax returns from the years immediately preceding the commencement of the within divorce action (2016, 2017 and 2018) in evidence confirm that the parties earned $36,414 in 2016 $45,219 in 2017, and $14,869 in 2018. The court appointed neutral expert, Douglas Sosnowski from Brisbane Consulting Group, LLC, testified at trial and provided the court with a report containing an income determination and a lifestyle analysis of the parties for the period 2012-2019. The parties1 annual income from the Chabad, according to the Brisbane report, at Schedule 1, for the 3 years prior to commencement is as follows: 2016 the sum of $33,100, 2017 the sum of $28,533, 2018 the sum of $49,188. When questioned by the husband’s counsel, Mr. Sosnowski testified he derived the aforesaid calculations by adding the bank deposits provided by the parties and did not inquire as to the source of such deposit. According to his testimony, he was directed to assume all deposits listed on the parties’ bank statements were to be considered “income” from the Chabad. He was unaware that certain deposits were from withdrawals from investment accounts and testified that had he known that some of the deposits were from investment assets, his income determinations would be less. Notably, the Brisbane report at Schedule 12 sets forth transfers from the parties’ savings and investment accounts into their personal accounts in order to pay personal expenses. Specifically, the evidence and report found that the following transfers were made prior to the commencement of the divorce action: in 2012 the sum of $15,000 was transferred, in 2013 the sum of $21,153 was transferred, in 2015 the sum of $51,074 was transferred, in 2016 the sum of $53,000 was transferred, and in 2017 the sum of $101,892 was transferred. In addition to the aforementioned transfers, Mr. Sosnowski also admitted he included income received from the wife after she moved out of the Chabad house, which he included as income from the Chabad. In his report, Mr. Sosnowski concluded the primary source of the parties’ income was through the payment of household expenses by the Chabad. Specifically, and in addition to the aforesaid income, the Brisbane report includes “expenses paid by the Chabad,” and a “parsonage allowance.” After such additional income is added, the total annual income for the three years preceding commencement of the divorce is as follows: 2016: $146,942, 2017: $126,837, and 2018: $112,791. In addition to the Brisbane report, the parties offered testimony and reports from their own independent expert witnesses. The husband’s expert, David Gresen found that the Brisbane report improperly included a “parsonage allowance” in calculating the husband’s total income and testified based on the specific facts of this case, the parties herein did not receive nor qualify for such a housing allowance. The wife testified that her duties and responsibilities were primarily to care for the children and husband and she did not play an integral role in the day to day operation of the Chabad. The husband argues to the contrary, alleging the wife played a central and essential role in both the operation of the Chabad and by teaching at the Chabad and through the on-line programs she created. He therefore seeks an imputation of income to the wife. The court heard testimony of both parties, in addition to the testimony of Rabbi Teldon and his wife who confirmed that the wife taught classes, organized and hosted holiday events and performed administrative duties such as check writing, hiring caterers, drivers and house cleaners for the Chabad. She further created a coaching and counseling program for the women congregants. The W-2 statements in evidence show that the wife received income from 2012 until 2017 in the range of $10,000 to $28,000. As set forth in the Brisbane report, her post commencement income for 2018 was $968.00 and 2019 was $9,909.00. Finally, it is noted that both parties admitted to withdrawing significant sums from their respective Vanguard investment accounts post commencement and as a result, both parties filed contempt motions against the other prior to and during the trial. The husband contends that the specific requirement that a Chabad Rabbi be part of a married couple with the goal and purpose of uniting and cultivating members, is no longer feasible as a result of the wife’s departure from the Chabad house and subsequent commencement of a divorce action. In support of said argument, he asks this court to consider one of the factors outlined in DRL §236B (6)(e)(I)(g), which sets forth in relevant part “acts by one party against another that have inhibited or continue to inhibit a party’s earning capacity or ability to obtain meaningful employment.” He argues the wife’s actions in moving out of the Chabad house, commencing the instant divorce action and destroying the Shluchim resulted in his loss of employment in the only profession he has known or worked. Additionally, he contends his lack of a secular education and his current mental health issues, as outlined by his treating psychiatrist, prevents him from attaining any meaningful employment going forward. He testified to working part-time as a supervisor of a Kosher kitchen. In light of these facts, the husband asks the court to impute an income not greater than $50,000 per year. He further argues that if the court were to impute income for his living expenses paid for by the Chabad, it should not exceed $2,000 per month, an amount he contends is proportionate to the level of his use and occupancy. However, it is well settled that the court need not rely upon a party’s own account of his or her finances but may impute income based upon the party’s past income or demonstrated earning potential. See, Rocanello v. Rocanello, 254 AD 2d 269 (2nd Dept. 1998). The court has also considered Brisbane’s findings regarding the average salary for an experienced Clergy Member in the Plainview, New York area ranges from $81,999 to $98,100 per year. With regard to the wife, the Brisbane report also found that the hourly rate for an administrator in the same geographical area is $34 per hour which, based on a 20 hour (part time) work week, would earn approximately $35,360 annually. The court has also considered the fact that although no longer employed by the Chabad, the husband continues to reside at the Chabad house, essentially living rent free throughout the litigation. At trial, the court was not presented with any evidence that the husband cannot work. In fact, he has been under a therapist’s care for 20 years, all while working. Dr. Arnold Mandelstam, the husband’s treating psychiatrist opined that the husband lacks the ability to become gainfully employed at a salary commensurate with his past position as a Chabad Rabbi. While his secular education is limited, there is no evidence in the record that he cannot work as a Rabbi in a synagogue or teach religious instruction at a house of worship or private Hebrew school. Further, the court reviewed the tax returns, bank statements and reports filed by the court appointed expert Douglas Sosnowski from Brisbane who reviewed financial documents from the last ten years and determined that much of the household and tuition expenses were paid by the Chabad or from investment withdrawals. Therefore, after careful consideration of all of the aforementioned and upon review of the testimony and evidence presented at trial, including the conflicting testimony and reports of the three financial witnesses, the court hereby imputes income to the husband in the sum of $75,000 per year net of statutory deductions and further finds that the income imputed to the husband in the sum of $200,000 per year as set forth in this court’s pendente lite order dated February 21, 2020 should be modified downward, retroactive to the date of the husband’s first application for a downward modification. Accordingly, the court hereby grants the husband’s downward modification application and determines the husband’s imputed income, net of statutory deductions, for purposes of calculating maintenance and child support is $75,000. Based upon the testimony and evidence presented at trial which documented the wife’s past employment and earning capacity, the court hereby imputes income to the wife in the sum of $20,000 net of statutory deductions. Maintenance DRL§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 statute thus applies to the instant action. Both parties were informed by the Court of the post-divorce maintenance guideline obligation. Here, where the payor’s income is lower than or equal to the cap of $203,000, and since both parties herein have residential custody of one child as aforestated, and since the court determined that the wife’s imputed income is $20,000 per year and the husband’s imputed income is $75,000 per year, pursuant to DRL §236B(5)(b)(l)&(2) the husband is deemed the “payor” and the wife is deemed the “payee.” Accordingly, the husband shall pay the wife child support based upon the difference between the two parties’ obligation to the other. The presumptive award is calculated as follows: First Calculation: a. The court shall subtract 25 percent of the payee’s income ($20,000) from 20 percent of the payor’s income ($75,000) which amount equals $10,000 per year or $833.33 per month. Second Calculation: b. The court shall then multiply the sum of the payor’s income and the payee’s income ($95,000) by 40 percent which amounts to $38,000. The court shall subtract the payee’s income from the amount derived ($38,000 minus $20,0000) which amounts to $18,000 per year or $1,500 per month. c. The court shall determine the lower of the two amounts derived by the first calculation and the second calculation which is $833.33. The presumptive amount of post-divorce maintenance is $10,000 per year, which equals $833.33 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 $203,000. The factors which the court must consider are as follows [(DRL §23([B)(6)(e)(1)]: A. The age and health of the parties: At the time of trial, the wife was 50 years old and in fair health. The husband was 56 years old and suffered from mental health issues as outlined by his treating psychiatrist. B. The present or future earning capacity of the parties, including a history of limited participation in the workforce: The husband argues that his job as a Chabad Rabbi requires him to be married and, since the wife commenced the within action, he can no longer work in that capacity. He further contends that his current mental health and his lack of secular education or training prevents him from being gainfully employed as a Rabbi or in any other related area. The wife argues that she too has a limited education and during the marriage she has never earned a salary significant to cover her basic living expenses and therefore requires lifetime maintenance. 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: The child support award will be terminated in three years, at which time the maintenance shall be recalculated. E. The wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration: The wife contends that without her consent, during the marriage, the husband intentionally transferred the Chabad property which she would have been entitled to. Further, both parties withdrew retirement funds prior to and after the commencement of the action thus preventing the equitable distribution of such marital assets. F. The existence and duration of a pre-marital joint household or a pre-divorce separate household: According to trial testimony, the wife moved out of the marital residence post-commencement and therefore, this factor is not applicable here. 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 husband contends that as a result of the wife filing for divorce, he is no longer able to continue to work as a Chabad Rabbi. The wife contends that the husband verbally abused her throughout the marriage and it was his behavior and conduct that caused her to file for divorce and vacate the Chabad residence. H. The availability and cost of medical insurance for the parties: Each party will be required to obtain their own coverage when the Judgment of Divorce is entered. 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 was presented on this issue. J. The tax consequences to each party: The court has considered the tax impact of the awards made herein. K. The standard of living of the parties established during the marriage: The trial testimony revealed that the parties lived far beyond their actual income and that was in great part due to the expenses paid for by the Chabad. Such expenses including the mortgage, utilities, household repairs, food, housekeeper, drivers, private school tuition for the children and caterers for holiday events. 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: The wife testified that her primary function was to care for the husband, the children and the home during the 30 year marriage and as a result, she was unable to become employed. The husband argued that the wife was in fact employed as an administrative assistant for the Chabad, and was also self employed as the creator of an on-line course which sought to educate and empower women. M. The equitable distribution of marital property and the income or imputed income of assets so distributed: The court heard testimony from both parties each of whom admitted to withdrawing substantial funds from their Vanguard accounts thus depleting a significant portion of the assets subject to 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 wife testified that she alone cared for the needs of parties’ eight (8) children and the home while the husband was working as a Rabbi, teaching classes, soliciting donors and attending holiday and fund-raising events. O. Any other factor which the Court shall expressly find to be just and proper. 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 30 years. The advisory schedule range is 10.5 years to 15 years. The Court has considered the aforesaid factors stated in DRL §236(B)(6)(e)(1), as well as the aforementioned imputation of income to both parties, the wife’s ability to work, her history of employment and the husband’s current physical and mental health issues, and other applicable facts as set forth above, the court has determined that it will award the maximum duration of maintenance to the wife and apply the advisory schedule. Therefore, the wife’s application for an award of lifetime maintenance is herein denied. In Vizel v. Vizel., 2005 NYLJ LEXIS 3901 at 12, the wife requested an unspecified award of maintenance for an unspecified period which the court denied. “While the standard of living is a factor that cannot be disregarded when deciding appropriate maintenance award, the preservation of that standard need not be the paramount concern where other factors, such as the recipient’s ability to rejoin the workforce and the parties’ other financial resources and obligations indicate that a modest durational award is appropriate.” Id. at 12. Accordingly, the Court hereby awards the wife maintenance for a total of fifteen (15) years prospectively. The court has considered the husband’s request for credit for pendente lite support against the duration of prospective maintenance. This determination was made in the exercise of discretion, based upon the credibility of the witnesses, the evidence presented at trial 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 $833.33 per month, payable directly to the wife, commencing on January 18, 2023 and on the eighteenth day of each month thereafter and continuing for a period of fifteen (15) years. And it is further ORDERED, that the parties shall adjust and recalculate the arrears due and owing for pendente lite maintenance within 60 days of service of the within Decision and Order After Trial. The husband shall pay arrears, if any, at a rate of $200 per month. The court’s pendente lite maintenance award is hereby vacated. Child Support The parties stipulated as to custody of the two unemanciapated children to wit: Baruch (age 19) and Gittel (age 18). It was agreed that both parties would have joint custody with the wife having residential custody of Gittel and the husband having residential custody of Baruch. Pursuant to the Child Support Standards Act (“CSSA”) (DRL §240(1-b)(b)(5)(iv)(A-D), at the discretion of the court, the court may attribute or impute income from, such other resources as may be available to the parent. In light of the court’s determination to impute income to the parties, the husband is deemed the non-custodial parent. In awarding child support, the Court has considered the guidelines contained in the CSSA, 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 custodial and non-custodial parent and those of the children, the physical and emotional health of the children, and their educational or vocational needs and aptitudes, as well as the non-monetary contributions that the parent will make toward the care and well-being of the children (Killian v. Lowden, 236 AD2d 236, [1st Dept., 1997]). Finally, the Court has also taken into account the shelter costs attributable to the children. (Linda R.H. v. Richard E.H., 205 AD2d 498 [2nd Dept., 1994]). The CSSA provides that child support shall be determined by multiplying the combined parental income of the parents, up to $163,000, 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 imputed income of the non-custodial parent, the husband, is $75,000.00-$10,000 = $65,000. 2. The imputed income of the wife, who is the custodial parent is $20,000 + $10,000 = $30,000. 3. The combined parental income (net of FICA/Medicare taxes) is $95,000. 4. The applicable child support percentage is 25 percent. 5. The combined basic child support obligation for the parties’ combined parental income (which is less than the $163,000 cap) is $23,750 per year or $1,979.16 per month. 6. The husband’s pro rata share of the basic child support obligation is $1,345.83 per month ($16,150 per year), representing 68 percent of the child support obligation. 7. The wife’s pro rata share of the basic child support obligation is $633.33 per month ($7,600 per year), representing 32 percent of the child support obligation. Since the parties each have residential custody of one child, the court shall subtract the wife’s support obligation from the husband’s obligation resulting in the following calculation: $1,345.83-$633.33 =$712.50 per month. Guided by the foregoing criteria and calculations, it is hereby, ORDERED, that commencing on January 18, 2023 the husband is directed to pay the wife the sum of $712.50 per month in child support for the support of the child Gittel and upon the 18th of every month thereafter. See, Groesbeck v. Groesbeck, 51 AD3d 722, 724 (2nd Dept., 2008). This child support award shall be adjusted and recalculated once the child Baruch is emancipated, and it is further ORDERED, the husband shall pay arrears due and owing, as hereinabove imputed and adjusted downward, from the pendente lite orders at a rate of $100 per month. Upon request of either party, payment shall be made payable by income deduction order through the Nassau County Support Collection Unit (SCU). The husband shall make payments directly to the wife until payment through the SCU is requested and effectuated. Under the circumstances of this case, this court finds the amount of child support ordered herein to be just and appropriate, based upon the factors set forth in DRL §240(1-b)(f), as outlined above. Equitable Distribution Pursuant to Domestic Relations Law §236(B)(5)(c) “marital property shall be distributed equitably between the parties, considering the circumstances of the case and of the respective parties.” In Miller v. Miller, the Court of Appeals held that “where both spouses equally contribute to a marriage of long duration, a division of marital assets should be as equal as possible.” 128 A.D.2d 844, 845 (2nd Dept. 1987). See, Granade-Bastuck v. Bastuck, 249 A.D. 2d 444, 445 (2nd Dept., 1998). The wife argues, however, that the husband’s loss of employment and failure to obtain a job commensurate with his documented earning history and his post commencement use of marital funds demonstrates marital waste, and that equitable does not necessarily mean equal. See, Moyston v. Jarrett, 198 A.D.2d 216 (2nd Dept., 1993). The wife is seeking an award of 100 percent of all marital assets based upon what she contends is “wasteful dissipation” and “egregious conduct” of the husband dating back to 1999 when they transferred title of the “Woodbury property to the Chabad. The husband is seeking an equal distribution of the marital assets. The husband denies the wife’s contention and argues that the wife’s filing for divorce and leaving the home and the Chabad coupled with his psychological condition caused him to be unemployable. He further argues that during the course of the marriage, the wife was aware of and did not object when he withdrew funds from his retirement accounts and he should not be penalized for the decisions they made while their marriage was intact. In Mahoney v. Mahoney-Buntzman, 12 N.Y.3d 415 (2009), the Court of Appeals held, in pertinent part: “…The parties’ choice of how to spend funds during the course of the marriage should ordinarily be respected. Courts should not second-guess the economic decisions made during the course of a marriage, but rather should equitably distribute the asset and obligations remaining, once the relationship is at an end.” This Court considered the following fourteen factors set forth in DRL§236(B)(5)(d)(1-14) in its’ determination of equitable distribution: 1. The income and property of each party at the time of the marriage and at the time of the commencement of the action: At the time of marriage, the husband was studying to become a Rabbi and the wife was employed. At the time of commencement, the husband was a Chabad Rabbi and the wife was the primary care giver to the children, managed the home, and taught religious classes at the Chabad and on-line. 2. The duration of the marriage and age and health of the parties: The parties were married for 30 years. At the time of trial, the wife was 50 years old and in good health. The husband was 56 years old and in poor mental and physical health. 3. The need of a custodial parent to occupy or own the marital residence: Not applicable since the marital residence is owned by the Chabad and therefore not a marital asset. 4. The loss of inheritance and pension rights upon the dissolution of the marriage as of the date of dissolution: The court has considered the pension rights of die parties and factored same in making its distributive award. 5. The loss of health insurance benefits upon dissolution of the marriage: Neither party offered any evidence as to health insurance at trial. 6. Any award of maintenance: The court has considered the award of maintenance to the wife made hereinabove. 7. Any equitable claim to, interest in, or direct or indirect contributions 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: No evidence was presented on this issue. 8. The liquid and non-liquid character of all marital properties: The evidence presented at trial shows the parties have acquired both liquid and non liquid assets during the marriage. 9. The probable future financial circumstances of each party: At the time of trial, neither party was employed. The husband lost his job as the Chabad Rabbi and suffers from anxiety and depression for which he is prescribed numerous medications which according to his treating psychiatrist inhibits his ability to find full time employment. The wife began teaching an on-line couching course and will likely continue to teach. 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: No evidence was presented on this issue. 11. The tax consequences to each party: The court was not presented with any evidence to consider the tax impact on the assets to be distributed. 12. The wasteful dissipation of assets by either party: The wife alleged the husband dissipated marital assets by using their retirement funds to pay household expenses and legal fees and further contends that the transfer of the real property in 1999, which resulted in tax benefits to the parties for over 20 years, should be considered marital waste. She further requests that such property be equitably distributed despite the fact that such property cannot be considered a marital asset, as determined by the decision of the Supreme Court (Capetola, J) which dismissed the constructive trust action. 13. Any transfer or encumbrance made in contemplation of a matrimonial action without fair consideration: No evidence was presented on this issue. 14. Any other factor that the Court shall expressly find to be just and proper. After careful consideration of the aforementioned factors, evaluation of the credibility of the witnesses, review of all the evidence and in the exercise of discretion, the court determines that the assets of the marriage shall be divided as follows: Chabad House With regard to the Chabad residence located at 678 Woodbury Road, Woodbury, New York, it is undisputed, based on the testimony and documentary evidence, that the parties, together, transferred title to said property to the Chabad in 1999 and received tax benefits from said transfer for more than twenty years. It is further undisputed that the related proceeding seeking to void said transfer alleging a cause of action for fraud and constructive trust filed by the wife against the husband and the Chabad was dismissed by the Supreme Court on June 24, 2021. Specifically, the Court found “the cause of action for constructive trust is inviable as the statute of limitations has clearly long since expired” and found such claim to be ‘patently devoid of merit.” Further the court found in relevant part as follows: By her own admission, plaintiff was aware that the Chabad was to be the title owner of the property once she signed the deed back in August of 1999, she was aware that the transfer was being done for tax purposes and benefits, and she signed the deed knowing that to be the case. It is not disputed that plaintiff and Rabbi Lipszyc did not pay taxes on the property for over 20 years following the transfer and therefore plaintiff received exactly the benefit she understood to be the purpose for the transfer. Her claims that the transfer was fraudulent are belied by her own claims, and her claims that she only discovered the alleged fraud when the divorce action was commenced is belied by her statements that she was “hesitant,” “reluctant” and aware that “Shmuel was asking me to give up my financial future” back in 1999. Accordingly, this property cannot be classified as a marital asset and therefore the wife’s request that the court equitably distribute such non-marital real property is denied. In addition, the wife’s request that the court distribute the funds in the Chabad’s bank accounts (ending in #3775 and #7553) is denied as such assets are not titled in the name of the parties herein but rather in the name of the Chabad, a not for profit organization, and therefore they cannot be classified as marital assets. The husband, who continues to reside at the Chabad premises, shall be responsible to pay off the balance of the mortgage which is in the parties’ name. Husband’s Interest in the Chabad Lubavitch of Plainview, Inc. According to the trial testimony and the Brisbane report, both parties herein were employed by the Chabad during the period analyzed by Brisbane, to wit: 2013-2019. The husband is a member of the board of directors of the Chabad, a non-profit religious organization governed by a board of directors. The wife is seeking 100 percent of the stock in the Chabad Lubavitch of Plainview, Inc. as determined by the court appointed expert, Brisbane. However, the husband’s ownership interest in the Chabad business was never established. The husband and wife were established as employees of the Chabad business. Although the Brisbane report determined that the Chabad organization (a not for profit) is valued at $584,000, the letter from Brisbane appears to be referring to the appreciation of the real property and not the not-for profit business. In fact, neither party offered evidence as to the existence or amount of stock, if any, held by the husband. Accordingly, and in light of the limited information provided, the wife’s request is denied. Loch Sheldrake Property This property was sold in June, 2019 for $132,000. The husband kept the down payment of $7,000 and the remaining proceeds in the sum of $ 125,000 were distributed to the wife in February, 2021, pursuant to a stipulation which purged the husband of the contempt finding dated January, 2021, and such funds were used to satisfy arrears due to the wife. The husband seeks a 50 percent credit in the sum of $62,564 against the balance of the equitable distribution. In light of the court’s determination that the husband is entitled to a downward modification such credit shall be applied to the distributions made herein. 401K, Pension, Retirement Accounts, Bank Accounts The court heard testimony and reviewed documents in evidence regarding that assets acquired by the parties during the marriage. They are as follows: 1. Buffalo Funds SEP-IRA account ending #7703 in the name of the husband, valued at $28,845 as of the date of commencement; 2. Meridian Fund SEP IRA, in the name of the husband, valued at $35,260 as of date of commencement; 3. Vanguard IRA accounts ending in #0298, 2959, 3047 valued at $ 14,258 as of commencement; 4. Vanguard account ending #2264 in the name of husband valued at $67,518 as of date of commencement; 5. Vanguard account ending #5824 in the name of husband valued at $118,762 as of date of commencement; 6. Vanguard SEP IRA account ending #3323 in the name of husband valued at $52,007 as of date of commencement; 7. Vanguard Roth IRA account ending #0771 in the name of husband valued at $7,008 as of date of commencement; 8. Vanguard IRA account ending #2018 in the name of husband valued at $6,020 as of date of commencement; 9. Vanguard Prime Money Market Fund account ending #8511 in the name of husband valued at $67,518 as of date of commencement; 10. Vanguard Voyager Roth IRA in the name of the wife valued at $5,665 as of the date of commencement; 11. Vanguard IRA accounts ending #2098, #2959, #3047 in the name of the wife valued at $13,572 as of the date of commencement; 12. Meridian FUNDS IRA account ending 0334, in the name of the wife valued at $16,927 as of the date of commencement. Said funds were withdrawn by the wife during the litigation; 13. Sterling Wealth account in the name of the wife valued at $26,663. During the litigation, the wife withdrew the total sum of $47,126 from her IRAs, Meridian and Sterling wealth accounts. At the sanctions hearing at trial, the parties entered into a stipulation whereby the husband received his half of said sums by virtue of the wife’s agreement to forego $23,000 of maintenance arrears. Accordingly, such asset was distributed; 14. Fidelity account in the name of the husband valued at $59,872. In July 2021, the husband withdrew $30,000 to pay wife’s legal fees pursuant to the sanctions hearing stipulation. It is undisputed that, post commencement, both parties herein withdrew funds subject to equitable distribution, in violation of the Automatic Orders. As a result, the parties filed numerous contempt motions against each other and ultimately entered into stipulations which resolved some of the arrears due and owing. The wife further alleges that during the marriage, the husband committed acts which constituted marital waste by making certain investments which did not prove to be fruitful and she should therefore be awarded 100 percent of the funds lost. Specifically, the wife’s request for reimbursements from payments and transfers totaling $105,000 made by the husband in 2014. “As a general rule, where the payments are made before either party is anticipating the end of the marriage, and there is no fraud or concealment, courts should not look back and try to compensate for the fact that the net effect of the payments may, in some cases, have resulted in the reduction of marital assets.” See Mahoney v. Mahoney-Buntzman, 12 N.Y.3d 415 (2009). Accordingly, wife’s request for credit for transfers or failed investments made by the husband pre-commencement is hereby denied. With respect to the aforementioned investment and retirement assets acquired during the marriage, the parties shall share equally in the marital portion of said assets as of the date of commencement, subject to credits, offsets, stipulations and orders. See Mahoney v. Mahoney-Buntzman, 12 N.Y.3d 415 (2009). The parties shall divide equally the funds (identified in trial exhibits) in their respective checking and savings accounts as of the date of commencement. The parties are directed to exchange an accounting within 60 days of this Decision and Order and execute any and all documents necessary to effectuate this order within 90 days of the within Decision and Order after Trial. Global Teams Although the husband stipulated that the wife would be entitled to 50 percent share of his 5 percent share of this marital asset, neither party offered any evidence as to the existence or value of this asset. The court therefore cannot distribute same at this time. Personal Property, Automobiles At trial, neither party offered evidence of personalty or vehicles acquired during the marriage which they seek to retain nor did they offer proof as to their value. Accordingly, the parties shall exchange a list of the personal property acquired during the marriage they wish to retain within thirty days from the date of this Decision and Order After Trial. If the parties cannot agree on the distribution, the property shall be sold and the proceeds shared equally. Such items shall not include property owned by the Chabad. Allocation of Debt The court heard testimony and reviewed evidence pertaining to the parties’ debt from various credit cards. Based on the testimony and evidence at trial, it is hereby, ORDERED, that all debt accumulated by the parties during the marriage and until the date of commencement shall be divided equally between the parties. Reapportionment of Expert Fees In light of the imputed income of the parties herein, and after due consideration of the facts and circumstances of the case and the awards made hereinabove, the court grants the husband’s request for a reapportionment of expert fees for which he was obligated to pay 100 percent and determines that such fees shall be shared on a pro rata basis using the imputed income inclusive of the maintenance award made herein. Therefore, the wife shall be responsible for 32 percent and the husband shall be required to pay 68 percent of the total fees paid or due. The husband shall be entitled to receive a credit or offset from the distribution of the parties’ retirement assets as set forth herein. Counsel Fees Both parties herein seek an award of counsel fees and each blames the other for the unnecessary delays and prolonged proceedings which took place over a four year period. As set forth in their respective post-trial briefs, the wife is seeking a counsel fee award in the sum of $300,000. The husband is seeks an award of counsel fees in the sum of $226,616. The wife argues in addition to the husband being the monied spouse, his conduct throughout the proceedings in failing to provide discovery, his non-compliance with the pendente lite orders and his intentional transfer and sale of retirement and savings assets intended to dissipate the marital estate must be considered in determining a counsel fee award. She further contends that the husband’s behavior required numerous motions to be filed on her behalf and extensive trial preparation leading to a 25 day trial. She contends none of this would be necessary if the husband was reasonable and forthcoming. The husband argued that it was the wife who caused this action to be protracted and made this matter more complex by taking unreasonable and unjustifiable positions including, among other things, that the Chabad house is a marital asset. Despite the fact that she acknowledged and conceded that she signed the deed transferring the property to the Chabad in 1999, and further acknowledged that she received the tax-exempt benefit of such transfer for twenty years, she testified the court should consider the husband’s conduct during the marriage to be “egregious” and award her 100 percent of the value of the property. Further, despite the court’s decision (Capetola, J) in the plenary action which granted the defendants’ motion for summary judgment thereby dismissing the action, at trial, the wife continued to request a distributive award of such non-marital property and further requested that she be awarded legal fees incurred for that separate action. He further argued that the pendente lite award imputed income to him in the sum of $200,000, representing the income of the Chabad for the year 2018 and not his actual earned income. He argued that although much of the family expenses were paid for by the Chabad, such perquisites could never be replicated in any future job since he is no longer part of Shluchim. He argued that the wife inflated his income and the expenses of the family in order to receive an unreasonably excessive pendente lite award that he could not afford to pay, thus resulting in the wife’s contempt motions. In determining whether to award fees, 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.” Prichep v. Prichep, 52 A.D.3d at 64, 858 N.Y.S.2d 667; Morrissey v. Morrissey, 259 A.D.2d 472, 473, 686 N.Y.S.2d 71; Chesner v. Chesner, 95 A.D.3d 1252, 1253, 945 N.Y.S.2d 409, 411 (2012); Brantly v. Brantly 89 A.D.3d 881, 883, 933 N.Y.S.2d 300, 303 (2011). In making its determination herein, the court also considered the pendente lite award of February 21, 2020, which awarded the wife the sum of $5,599 in combined child support and maintenance which was herein modified downward to $1,545.83 per month retroactively. Upon review of the affirmation of services, the retainer agreement, the invoices submitted at trial, the updated invoices annexed to counsel’s affirmation, the trial testimony, the fact that the husband has been the primary wage earner throughout the parties’ marriage, the Court finds an award to the wife of a portion of the services provided by her counsel to be reasonable. Accordingly, the wife is awarded counsel fees in the total amount of $75,000 to be paid by the husband directly to the law firm of Eyal Talassazan, P.C. within ninety (90) days from the date of service of this Decision After Trial. If the husband fails to pay as directed, upon affirmation of non-payment, the Clerk of the County of Nassau is directed to enter judgment against the husband and in favor of Eyal Talassazan, PC with statutory interest and costs without further proceedings. The husband’s request for an award of counsel fees is denied. Prior Motions for Contempt and Other Relief In a decision of the court dated July 28, 2021, the husband was found in contempt for failure to pay $30,000 in court ordered counsel fees and sanctions for said contempt were referred to trial. The wife was granted $7,500 in counsel fees for the application. In a decision dated July 28, 2021, the wife’s application to find the husband in contempt for failure to pay $13,797 in pendente lite arrears was granted with sanctions referred to trial. In addition, the wife’s application for $50,000 in additional counsel fees was referred to trial, and the wife was awarded $5,000 in counsel fees for her initial application. In a decision dated July 28, 2021, the husband’s application to find the wife in contempt for her violation of the automatic restraints for withdrawing marital funds was granted with sanctions referred to trial. The husband’s application to reapportion the parties’ pro rata payment of the expert fees was referred to trial. In a decision dated February 18, 2022, the wife’s application to find the husband in contempt for failure to pay support arrears and pay $44,794 in previously ordered counsel fees was referred to trial, as was the wife’s request for an additional $10,000 in counsel fees. The wife’s request to sanction the husband and his attorneys for their ex parte communications with the forensic expert along with the husband’s application for sanctions against the wife for frivolous motion practice was also referred to trial. The husband’s request for an order vacating all findings of contempt is denied. The husband argues said findings should have been referred to hearing. The court disagrees. The court notes the prior decisions made at the time were not appealed or modified and sufficient grounds were established at the time to warrant the findings on papers. The referral to trial of the wife’s request for counsel fees was addressed hereinabove. The wife’s application to find the husband in contempt for support arrears which was referred to trial is denied in light of this court’s Decision After Trial. The court notes the husband’s attorneys conceded their ex parte communication with the court appointed neutral evaluator. Although said ex parte communication is inappropriate under the circumstances, the court denies both applications with respect to sanctions. With respect to the remaining issue of sanctions, the court denies the imposition of any sanctions and refers the parties to the provisions of this Decision After Trial. Order Pursuant to the provisions of 22 NYCRR §202.48, the wife is directed to submit a proposed Judgment of Divorce and all other requisite documents to the Matrimonial Clerk on notice to the husband 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. The parties are directed to execute any and all documents necessary to effectuate this order within 60 days after service of the within 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: January 11, 2023