A Lawyer’s Blog – Jon Michael Probstein, Esq.: DIVORCE

Introduction

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

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

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

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

THE WITNESS: I scratch my nose.

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

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

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

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

THE COURT: Yes?

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

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

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

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

COURT OFFICER: Stop talking.

THE WITNESS: I cannot believe this.

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

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

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

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

As the Husband testified on September 22, 2022:

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

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

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

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

Background

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

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

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

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

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

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

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

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

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

Trial Dates

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

Post-Trial Conferences

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

The Trial Testimony

A. Husband’s Case:

1. Testimony of the Wife

Direct Examination

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

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

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

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

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

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

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

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

Cross-Examination^[23]

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

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

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

Re-Direct Examination

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

Re-Cross Examination

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

2. Testimony of Benjamin Schuver

Direct Examination

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

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

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

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

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

Cross-Examination

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

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

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

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

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

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

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

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

Re-Direct Examination

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

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

Re-Cross Examination

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

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

3. Testimony of Craig Schulken

Direct Examination

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

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

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

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

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

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

Cross Examination

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

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

Re-Direct Examination

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

Re-Cross Examination

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

4. Testimony of Michael Tama, Esq.

Direct Examination

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

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

Cross-Examination

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

5. Testimony of Bruce Schwartz

Direct Examination

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

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

Cross-Examination

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

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

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

Re-Direct Examination

The re-direct examination of this witness was insubstantial.

Re-Cross Examination

The re-cross examination of this witness was insubstantial.

6. Testimony of Douglas Sosnowski

Direct Examination

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

Cross-Examination

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

7. Testimony of the Husband

Direct Examination

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cross Examination

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Re-Direct Examination

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

Re-Cross Examination

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

8. Testimony of Troy Eisner

Direct Examination

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

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

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

Cross-Examination

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

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

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

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

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

Re-Direct Examination

The re-direct examination of this witness was insubstantial.

B. Wife’s Case:

1. Testimony of Jennifer Diel^[81]

Direct Examination

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

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

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

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

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

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

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

Cross-Examination

There was no cross-examination of this witness.

2. Testimony of E.I.

Direct Examination

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

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

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

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

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

Cross-Examination

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

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

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

Re-Direct Examination

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

Re-Cross Examination

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

3. Testimony of Keith Fontana

Direct Examination

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

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

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

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

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

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

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

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

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

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

There was no other surveillance.

Cross-Examination

There was no cross-examination of this witness.

4. Testimony of the Wife

Direct Examination

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Cross-Examination

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

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

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

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

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

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

Re-Direct Examination

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

Post-Trial Summations

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

DECISION + ORDER

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

GROUNDS

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

EQUITABLE DISTRIBUTION

DRL § 236(B)(5)(a) provides:

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

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

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

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

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

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

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

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

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

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

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

7. Any equitable claim to interest in or direct or indirect
contribution made to the acquisition of such marital property of the
party not having title including joint efforts or expenditures and
contributions and services as a spouse, parent, wage earner and
homemaker, and to the career or career potential of the other party. The
Court has considered the Wife’s efforts in raising the parties’ two
children, who are now emancipated, with little to no help or input from
the Husband during the parties’ marriage.

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

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

10. The impossibility or difficulty of evaluating any component asset
of any interest in a business, corporation or profession and the
economic desirability of retaining such asset or interest intact and
free from any claim or interference by the other party. The Husband will
retain the Business.

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

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

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

14. Whether either party has committed an act or acts of domestic
violence, as described in subdivision one of section four hundred
fifty-nine-a of the social services law, against the other party and the
nature, extent, duration and impact of such act or acts. The Wife
testified, at length on her case-in-chief, with respect to allegations
of domestic violence committed against her by the Husband, such as, for
instance, the Husband dragging the Wife by her shirt, the Husband
breaking the Wife’s finger, and the Husband punching the Wife. However,
the Court also viewed a video, which was received in evidence,^[99]
of the Wife grabbing and pulling the Husband by the hood of his
sweatshirt, and swinging her pocketbook and hitting the Husband in his
upper body with it. The Court finds that both parties have committed
acts of domestic violence against the other.

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

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

*

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

*

A. The Wantagh Property

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

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

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

A: I think about 15, 20 years back.

Q: What name was it acquired in?

A: M &M Ld, my name.

* * *

Q: Now, is that still the case —

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

B. The Bellmore Residence

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

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

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

Article One

Establishing Our Trust

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

Section 1.01 Identifying Our Trust

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

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

* * *

Section 1.03 An Irrevocable Trust

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

Section 1.04 Transfers to the Trust

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

(a) Character of Property Transferred

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

(1) Separate Property

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

(2) Joint Property

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

(b) Trustee Acceptance

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

(c) No Distributions of Principal

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

Section 1.05 Statement of Our Intent

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

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

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

* * *

Section 1.07 Our Other Lifetime Beneficiaries

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

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

Article Two

Trustee Succession and Trust Protector Provisions

Section 2.01 Trustee Succession

This Section governs the succession of our Trustees.

(a) Neither of Us May Serve as Trustee

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

(b) Trustee Succession During Lifetime

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

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

* * *

Article Three

Administration While Either of Us is Living

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

Section 3.01 Contributions Held in a Single Trust

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

(a) Residence Provisions

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

* * *

Article Five

Administration of Remaining Trust Property

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

Section 5.01 Division and Distribution of Remaining Trust Property

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

  Name    Relationship    Share

  P.I.    Son             1/2

  E.I.    Daughter        1/2

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

(3) Homestead Exemption

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

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

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

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

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

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

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

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

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

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

(emphasis added).

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

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

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

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

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

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

THE WITNESS: Yes.

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

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

MR. ROSEN: He’s the plaintiff.

THE COURT: This is his testimony.

THE WITNESS: I served the papers.

See August 18, 2022 Transcript.

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

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

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

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

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

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

See August 18, 2022 Transcript.

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

Grantors and Trustees

We hereby execute this agreement on November 7, 2017.

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

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

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

C. The Business

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

A: She did.

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

A: She was a secretary.

Q: What did the duties entail?

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

Q: Who did the bookkeeping?

A: She did.

Q: Who maintained the records?

A: She did.

Q: Who did the bank accounting?

A: She did.

Q: Who made deposits?

A: She did.

Q: Who gave proposals?

A: She made the proposal.

Q: Who paid the bills?

A: She did.

Q: Who worked with the accountant?

A: She did.

Q: Who did the payroll?

A: She did.

* * *

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

A: Stay the same.

* * *

Q: You never signed them?

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

See August 18, 2022 Transcript.

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

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

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

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

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

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

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

D. The Life Estate(s)

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

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

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

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

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

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

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

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

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

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

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

E. The 2020 Lamborghini Aventador SVJ

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

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

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

See Paragraph “18” of the lease.

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

The Wife argues in her Post-Trial Memorandum:

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

See Wife’s Post-Trial Memorandum, page “22”.

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

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

A: December 5, 2020.

Q: Tell me how that day started.

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

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

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

* * *

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

A: I’d have to look at my notes.

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

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

Q: Could you?

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

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

A: We did.

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

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

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

A: He was not alone.

* * *

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

A Yes.

Q: When was that?

A: Sunday, December 5, 2021.

* * *

Q: Tell me about that particular date.

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

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

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

* * *

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

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

Q: Please.

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

* * *

Q: What was he driving?

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

* * *

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

A: Yes. It’s registered to Mr. I.

Q: And the title?

A: It’s titled to a lease company.

See May 15, 2023 Transcript.

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

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

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

F. 2020 Ford F-150

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

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

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

G. The 2015 Bentley Continental GTCV8S

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

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

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

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

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

H. Annuity

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

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

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

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

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

I. Life Insurance Cash Value

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

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

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

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

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

J. Bank Accounts^[143]

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

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

*

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

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

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

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

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

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

ii. TD Bank Checking Account (xxx0026)

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

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

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

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

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

iii. Chase Bank Checking Account (xxx7686)

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

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

iv. Chase Bank Business Account (xxx8161)

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

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

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

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

v. Chase Bank Business Account (xxx8628)

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

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

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

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

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

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

vi. Chase Bank Business Account (xxx0303)

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

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

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

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

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

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

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

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

viii. Chase Bank Savings Account (xxx9727)

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

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

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

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

(c) the minor’s death.

(emphasis added).

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

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

K. Wife’s Debts

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

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

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

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

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

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

L. Motorcycles

i. BMW Motorcycle

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

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

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

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

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

ii. Ducati Motorcycle

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

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

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

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

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

M. Personal Property

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

N. Tax Debt

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

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

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

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

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

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

O. Waste

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

i. Husband’s Marital Waste Claim(s)

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

ii. Wife’s Marital Waste Claim(s)

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

MAINTENANCE

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

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

a) The age and health of the parties;

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

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

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

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

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

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

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

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

j) The tax consequences to each party;

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

*

1. Determination of Income

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

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

A: Yes.

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

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

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

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

Q: Did you ever work for your father?

A: I did.

Q: In what capacity?

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

* * *

Q: Were you compensated in any way?

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

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

A: Money.

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

A: Cash.

Q: Do you recall how much?

A: Like a hundred dollars here and there.

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

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

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

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

Q: With what frequency?

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

THE COURT: To collect cash?

THE WITNESS: Yes.

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

A: Yes.

Q: What do you recall observing?

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

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

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

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

A: Yes.

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

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

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

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

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

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

* * *

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

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

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

A: Between 5 and $10,000.

* * *

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

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

See May 3, 2023 Transcript.

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

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

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

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

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

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

Q: How did you receive payments from clients?

A: P.O. Box.

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

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

Q: Did you receive any credit card payments?

A: That, I don’t know.

Q: Did you receive cash payments?

A: No, no cash.

See August 18, 2022 Transcript.

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

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

A: Yes.

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

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

* * *

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

A: No.

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

THE COURT: It’s an interesting answer.

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

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

MR. ROSEN: Objection, not responsive.

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

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

THE COURT: At the end of season.

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

See August 18, 2022 Transcript.

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

5. Duration of Maintenance

DRL § 236(B)(6)(f) provides:

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

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

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

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

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

  More than 20 years                            35% - 50%

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

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

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

A: No, I do not.

Q: Did you hear it on the voice message?

A: I did hear it, yes.

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

A: Can you be more specific?

Q: Sure.

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

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

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

THE COURT: You could ask. Go ahead.

Since February 4th of 2020 —

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

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

Q: You don’t need to find a job?

A: No.

Q: Why is that?

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

See June 12, 2023 Transcript.

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

6. Conclusion

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

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

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

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

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

LIFE INSURANCE

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

“. . . [i]n any matrimonial action the court may order a
party to purchase, maintain or assign a policy of . . . insurance on the
life of either spouse, and to designate in the case of life insurance,
either spouse or children of the marriage . . . during a period of time
fixed by the court. The obligation to provide such insurance shall cease
upon the termination of the spouse’s duty to provide maintenance . . .”

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

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

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

COUNSEL FEES^[202]

DRL § 237(a) provides, in part:

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

(emphasis added).

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

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

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

MISCELLANEOUS

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

* * *

Any other relief requested not specifically addressed herewith is DENIED.

This constitutes the Decision and Order of this Court.

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

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

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

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

[5] See Plaintiff’s Exhibit “1”, in evidence.

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

[7] See Plaintiff’s Exhibit “2”, in evidence.

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

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

[10] Motion Sequence No.: 002.

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

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

[13] Motion Sequence No.: 004.

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

[15] Motion Sequence No.: 005.

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

[17] Motion Sequence No.: 007.

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

[19] See Plaintiff’s Exhibit “61”, in evidence.

[20] Michael Tama, Esq.

[21] See Plaintiff’s Exhibit “60”, in evidence.

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

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

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

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

[26] M & M DP, Inc.

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

[28] See Plaintiff’s Exhibit “79”, in evidence.

[29] See Plaintiff’s Exhibit “45”, in evidence.

[30] See Plaintiff’s Exhibit “22”, in evidence.

[31] See Plaintiff’s Exhibit “19”, in evidence.

[32] See Plaintiff’s Exhibit “16”, in evidence.

[33] See Plaintiff’s Exhibit “13”, in evidence.

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

[35] See Plaintiff’s Exhibit “79”, in evidence, page “13”.

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

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

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

[39] See Plaintiff’s Exhibit “79”, in evidence, pages “14”-“15”.

[40] See Defendant’s Exhibit “A”, in evidence.

[41] See Plaintiff’s Exhibit “76”, in evidence.

[42] See Plaintiff’s Exhibit “3”, in evidence.

[43] See Plaintiff’s Exhibit “13”, in evidence.

[44] See Plaintiff’s Exhibit “16”, in evidence.

[45] See Plaintiff’s Exhibit “5”, in evidence.

[46] See Plaintiff’s Exhibit “19”, in evidence.

[47] See Plaintiff’s Exhibit “7”, in evidence.

[48] See Plaintiff’s Exhibit “11”, in evidence.

[49] See Plaintiff’s Exhibit “12”, in evidence.

[50] See Plaintiff’s Exhibit “88”, in evidence.

[51] See Plaintiff’s Exhibit “42”, in evidence.

[52] See Plaintiff’s Exhibit “50”, in evidence.

[53] See Plaintiff’s Exhibit “45”, in evidence.

[54] See Plaintiff’s Exhibit “44”, in evidence.

[55] See Plaintiff’s Exhibits “37”, “38”, “39” and “40”, in evidence.

[56] See Plaintiff’s Exhibit “89”, in evidence.

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

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

[59] See Plaintiff’s Exhibit “34”, in evidence.

[60] See Plaintiff’s Exhibit “84”, in evidence.

[61] See Plaintiff’s Exhibit “46”, in evidence.

[62] See Plaintiff’s Exhibit “48”, in evidence.

[63] See Plaintiff’s Exhibit “62”, in evidence.

[64] See Plaintiff’s Exhibits “55” and “57”, in evidence.

[65] See Plaintiff’s Exhibit “54”, in evidence.

[66] See Plaintiff’s Exhibit “93”, in evidence.

[67] See Plaintiff’s Exhibit “94”, in evidence.

[68] See Plaintiff’s Exhibit “59”, in evidence.

[69] See Plaintiff’s Exhibit “28”, in evidence.

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

[71] See Plaintiff’s Exhibit “93”, in evidence.

[72] See Plaintiff’s Exhibit “59”, in evidence.

[73] See Defendant’s Exhibit “D”, in evidence.

[74] See Plaintiff’s Exhibit “27”, in evidence.

[75] See Plaintiff’s Exhibit “27”, in evidence.

[76] See Plaintiff’s Exhibit “104”, in evidence.

[77] See Plaintiff’s Exhibit “29”, in evidence.

[78] See Plaintiff’s Exhibit “107”, in evidence.

[79] See Plaintiff’s Exhibit “93”, in evidence.

[80] See Plaintiff’s Exhibit “29”, in evidence.

[81] Ms. Diel testified pursuant to subpoena.

[82] See Defendant’s Exhibit “L”, in evidence.

[83] See Defendant’s Exhibit “O”, in evidence.

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

[85] Michael Tama, Esq.

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

[87] See Defendant’s Exhibit “W”, in evidence.

[88] See Defendant’s Exhibit “U”, in evidence.

[89] See Defendant’s Exhibit “T”, in evidence.

[90] See Defendant’s Exhibit “Q”, in evidence.

[91] See Defendant’s Exhibit “R”, in evidence.

[92] Kestenbaum & Mark, Esqs.

[93] See Defendant’s Exhibit “Z”, in evidence.

[94] See Defendant’s Exhibit “AA”, in evidence.

[95] See Defendant’s Exhibit “AL”, in evidence.

[96] See Defendant’s Exhibit “AE”, in evidence.

[97] See Defendant’s Exhibit “AH”, in evidence.

[98] See Defendant’s Exhibit “Y”, in evidence.

[99] See Plaintiff’s Exhibit “62”, in evidence.

[100] See Wife’s Post-Trial Memorandum, page “19”.

[101] See Husband’s Post-Trial Memorandum, page “33”.

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

[103] See Defendant’s Exhibit “D”, in evidence.

[104] See Plaintiff’s Exhibit “50”, in evidence.

[105] See Plaintiff’s Exhibit “50”, in evidence.

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

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

[108] See Defendant’s Post-Trial Memorandum, page “27”.

[109] See Plaintiff’s Exhibit “44”, in evidence.

[110] See Plaintiff’s Exhibit “43”, in evidence.

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

[112] See Plaintiff’s Post-Trial Memorandum, page “32”, ¶ 86.

[113] See Plaintiff’s Post-Trial Memorandum, page “32”, ¶ 86.

[114] See Plaintiff’s Post-Trial Memorandum, page “34”, ¶ 94.

[115] See Defendant’s Post-Trial Memorandum, pages “14” and “17”.

[116] See Defendant’s Exhibit “AN”, in evidence.

[117] See Defendant’s Exhibit “AM”, in evidence.

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

[119] See Plaintiff’s Post-Trial Memorandum, pages “25” to “26”, ¶ 76.

[120] See Defendant’s Exhibit “M”, in evidence.

[121] See Defendant’s Exhibits “G” and “H”, in evidence.

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

[123] See Defendant’s Exhibit “R”, in evidence.

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

[125] See Defendant’s Post-Trial Memorandum, page “50”.

[126] See Plaintiff’s Post-Trial Memorandum, page “33”, ¶ 89.

[127] See Defendant’s Post-Trial Memorandum, page “11”.

[128] See Plaintiff’s Post-Trial Memorandum, pages “16” through “17”, ¶ 47.

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

[130] See Defendant’s Exhibit “L”, in evidence.

[131] See Plaintiff’s Post-Trial Memorandum, page “16”.

[132] See Plaintiff’s Exhibit 94″, in evidence.

[133] See Plaintiff’s Post-Trial Memorandum, page “17”, ¶ 48.

[134] See Defendant’s Exhibit “W”, in evidence.

[135] See Plaintiff’s Post-Trial Memorandum, pages “17” and “38”.

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

[137] See Defendant’s Post-Trial Memorandum, page “25”.

[138] See Defendant’s Exhibit “AH”, in evidence.

[139] See Plaintiff’s Exhibit “59”, in evidence.

[140] See Defendant’s Post-Trial Memorandum, page “26”.

[141] See Defendant’s Exhibit “AH”, in evidence.

[142] See Plaintiff’s Exhibit “59”, in evidence.

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

[144] See Plaintiff’s Post-Trial Memorandum, page “36”, ¶ 98.

[145] See Plaintiff’s Exhibits “89” and “90”, in evidence.

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

[147] See Plaintiff’s Exhibit “55”, in evidence, pages 39-40.

[148] See Plaintiff’s Exhibit “55”, in evidence, page 131.

[149] See Plaintiff’s Exhibits “37”, “38”, “39” and “40”, in evidence.

[150] See Plaintiff’s Exhibit “37”, in evidence, page “2321”.

[151] See Plaintiff’s Exhibit “39”, in evidence, page “2911”.

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

[153] See Plaintiff’s Exhibit “40”, in evidence, pages “1286” through “1289”.

[154] See Plaintiff’s Exhibit “40”, in evidence, pages “1291” through “1293”.

[155] See Defendant’s Exhibit “AK”, in evidence.

[156] See Defendant’s Post-Trial Memorandum, page “33”.

[157] See Plaintiff’s Post-Trial Memorandum, page “16”, ¶ “44”.

[158] See August 18, 2022 Transcript.

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

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

[161] See Plaintiff’s Exhibits “51” and “52”, in evidence.

[162] See Plaintiff’s Post-Trial Memorandum, page “16”, ¶ “44”.

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

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

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

[166] See Plaintiff’s Post-Trial Memorandum, page “39”.

[167] See Plaintiff’s Post-Trial Memorandum, pages “38” through “39′, ¶ “108”.

[168] See Plaintiff’s Exhibits “77” and “78”, in evidence.

[169] See Plaintiff’s Post Trial Memorandum, pages “36” through “37”, ¶¶ “98” and “99”.

[170] See Defendant’s Post-Trial Memorandum, pages “34”.

[171] See Plaintiff’s Exhibit “31”, in evidence.

[172] See Plaintiff’s Exhibit “34”, in evidence.

[173] See Defendant’s Exhibit “O”, in evidence.

[174] See Defendant’s Exhibit “A”, in evidence.

[175] See Defendant’s Exhibit “A”, in evidence, page “15”.

[176] See Defendant’s Exhibit “AO”, in evidence.

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

[178] See Plaintiff’s Exhibit “11”, in evidence.

[179] See Defendant’s Exhibit “A”, in evidence, page “15”.

[180] See Plaintiff’s Exhibit “13”, in evidence.

[181] See Plaintiff’s Exhibit “3”, in evidence.

[182] See Plaintiff’s Exhibit “93”, in evidence.

[183] See Plaintiff’s Exhibit “26”, in evidence.

[184] See Defendant’s Exhibit “L”, in evidence.

[185] See Plaintiff’s Exhibit “28”, in evidence.

[186] See Plaintiff’s Exhibit “93”, in evidence.

[187] See Plaintiff’s Exhibit “26”, in evidence.

[188] See Plaintiff’s Exhibit “28”, in evidence.

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

[190] See Plaintiff’s Exhibit “29”, in evidence.

[191] See Defendant’s Exhibit “H”, in evidence.

[192] See Wife’s Post-Trial Memorandum, page “44”.

[193] See Plaintiff’s Exhibit “54”, in evidence, page “414”.

[194] See Defendant’s Post-Trial Memorandum page “41”.

[195] See Wife’s Post-Trial Memorandum, page “45”.

[196] See Defendant’s Exhibit “AB”, in evidence.

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

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

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

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

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

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

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

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

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