Opinion
Decided June 16, 2004.
This matrimonial action was tried before me without a jury, on September 23, 2003, December 16, 2003 and March 5, 2004. Both parties were afforded an opportunity to submit memorandums of law, all of which I have reviewed.
FACTS/TRIAL TESTIMONY
The parties to this action were married on August 19, 1978 in Nassau County, New York. The parties have two children, K. (b. Nov. 4, 1980) who is now 23, and M. (b. June 24, 1983) who will be 21 in one week. At the time of trial, both parties were 50 years old. This action was commenced on September 23, 2002.
The plaintiff quite credibly detailed that at the time of the marriage, she was 25 years old and had an Associate's Degree in Medical Secretary Sciences. She was employed as a secretary at Winthrop Hospital, earning $13,000 per year. She continued this employment, and maintained her position almost until the birth of their first child, K., in November, 1980. Three months later, she enrolled in a two year program at Nassau Community College, to obtain a degree as a Registered Nurse. During her first semester, she was an "A" student, but her second semester was beset with extraordinary constraining demands — K. required her attention as a newborn, she simultaneously worked part-time in a doctor's office for extra income the family needed, she also attended school four days per week, and the defendant left his employment to open a new travel agency in Brooklyn. The defendant could not provide stability of income, and his new business required his time and attention. This regularly required his working seven days per week, and continuing into late evening hours.
The plaintiff left nursing school after her second semester — the demands of a rigorous school schedule, part-time employment, caring for K., and the unavoidable absence of the defendant because of his new business, had taken its toll. But even upon leaving the nursing program, the plaintiff continued her employment and her steadfast care of K.
On June 24, 1983, the parties had their second child, M. In 1985, the defendant left the travel agency and purchased a bread route. He operated it for one year, he didn't like it, and he returned to J.P. Morgan, his original employer at the time of the marriage, where he had been earning $18,000.
In the spring of 1988, defendant "felt a personal need" to resume his education to get a B.A. Degree. The plaintiff was consulted by defendant, and she agreed that he undertake to do so. Towards that end, defendant went to PACE University for an accelerated Bachelor's Degree program. He attended courses in the evenings, the plaintiff continued her part-time employment, and she was yet again caring for the children and the house in the absence of the defendant, who was now pursuing his education, finally obtaining his Bachelor's Degree in 1990. The defendant was promoted as a bank officer in August, 1990 and the plaintiff continued her part-time employment earning $12 per hour, which employment continued, even after the plaintiff's promotion.
But in 1996, K.'s behavior became problematic, causing plaintiff to terminate her employment. K. became physically and verbally abusive; she cut classes at school; a PINS petition was filed; she frequently called plaintiff at work contemplating suicide attempts, and finally made such an attempt in 1999; she was admitted to Mercy Hospital and South Oaks for evaluation. She was determined to be eligible for disability in August, 2000, and currently receives $384 per month. At the time of trial, she was also employed as a waitress 4-5 days per week, and earning approximately $50 per day.
As far back as November, 1998, defendant permanently left the marital residence after a dispute with K., and has not returned since.
The parties' son, M., is a student at the University of Connecticut, and remains there full time.
GROUNDS FOR DIVORCE
At the commencement of the trial, the defendant withdrew his previously interposed answer and the plaintiff testified in support of a cause of action based upon Domestic Relations Law § 170. There being no defense proffered by defendant on the allegations, plaintiff is granted a judgment of divorce as against the defendant on these grounds.
STIPULATIONS
For purposes of equitable distribution, the parties simplified many of the issues before me with the following stipulation for distribution of certain marital assets:
1. Equal division of seven retirement accounts with a present market value of approximately $274,500 will be transferred from defendant to plaintiff pursuant to a Qualified Domestic Relations Order.
2. Equal division of liquid assets totaling $103,200.
3. Equal division of stock options received by husband.
EQUITABLE DISTRIBUTION
The trial court has a responsibility to make findings with respect to the value of marital assets and to set forth all of the factors it has considered and the "reason for its decision" as it relates to division of those assets. See, Domestic Relations Law § 236[B][5][d]; O'Brien v. O'Brien, 66 NY 2d 576, 589. The marital assets must be "distributed equitably between the parties, considering the circumstances of the case and of the respective parties." See, Domestic Relations Law § 236[B][5][c].
The ensuing discussion details all of those applicable factors that I have considered.
A. Marital Home
Prior to the marriage, the parties purchased a home in East Meadow, New York for approximately $80,000. Upon a sale, the parties realized a gain of approximately $50,000.
That gain was utilized in 1984 as a down payment for the purchase of the marital residence [Merrick], currently occupied by the plaintiff and K.
The purchase price for the home was $125,000. The gain [$50,000] from the East Meadow home transaction was utilized as a down payment, and the balance of the price was paid with a first mortgage [$75,000] obtained by the parties.
Summary Purchase of Merrick, New York
Purchase Price $125,000
Paid as follows:
Down Payment
[from sale of East Meadow] 50,000
I am unclear as to why the mortgage on the purchase was $75,000 and was later testified to be $77,597. No clarification was offered, and in my discretion I utilized the figure that appeared to be obtained from a most recent statement from the mortgagee.
Through the wife's testimony and her net worth statement, the market value of the marital home at time of trial was $430,000. The principal balance of the mortgage was $77,597. The husband did not refute these figures, nor did either party offer expert testimony as to the value of the marital home. The net equity, thus, for the marital home, is computed to be $352,403.00 [$430,000-$77,597].
In determining the parties' respective interests in the marital home, it should be divided as equally as possible, especially where the marriage is of long duration and both parties have made direct and indirect contributions to it. Lipovsky v. Lipovsky, 271 AD2d 658; Grande-Bastuck v. Bastuck, 249 AD2d 444. Towards that end, I have considered the length of the marriage of 24 years, 1 month [8-19-78 to commencement date of 9-23-02] and the respective contributions of the parties. See, Grande-Bastuck v. Bastuck, 249 AD2d 444. Even in those instances of long term marriages, there is no requirement that the distribution of each item of marital property be made on a equal basis. Arvantides v. Arvantides, 64 NY2d 1033; Moyston v. Jarrett, 198 AD2d 216.
The defendant, through self advancement in his career, provided direct contribution to the finances of the parties. But, the plaintiff made significant and disproportionately indirect contribution, through part-time employment, child rearing, sacrificing her own educational pursuits, and careful [and continuing] attention to K., whose well-being and safety has been secured by the plaintiff's sacrifice, devotion, and spirited endurance. Plaintiff dealt with vivid scenes of anger, hate and remorse, almost singlehandedly, while the defendant pursued his career, two failing businesses and his education. While the defendant pursued his career trek to the realization of significant earnings, the plaintiff provided a flawless and classic backdrop to the "economic partnership" — her financial support, albeit part-time, was a fundamental ingredient towards helping ends meet; her care of the two children was without any physical assistance, all of the household responsibilities and challenges were met singlehandedly; and her indelible resolution of the devastating problems that haunted K., were inspiring. All of this proved physically and emotionally sacrificial to the plaintiff, as her career potential fell victim to the time constraints that were dictated by her labors for her children and her husband. She pledged herself for what was clearly her only priority — her family.
Before K.'s problems were nowhere close to being resolved, defendant abdicated any significant role in the household affairs to the plaintiff, and in 1998 he left the marital home. I have heavily weighed that the defendant had not been present in the home for the last four years preceding the commencement of this action.
In determining the parties' interests in the marital home, equitable distribution does not necessarily require equal distribution ( Kobylack v. Kobylack, 96 AD2d 831), and the Court may award different percentages for different categories of marital property ( Reina v. Reina, 153 AD2d 775).
In this instance, the most compelling factors I have considered were the defendant's absence from the home for four years up to the commencement of this action, and the wife's assumption of all responsibilities that were delegated to her while she also worked part-time. The husband's ability to pursue different careers and a college degree, made possible through plaintiff's efforts and sacrifices, all suggest that the "circumstances of the case and of the respective parties" (see, Domestic Relations Law § 236[B][5][c]), warrant a division of the marital home in the following percentages — 55% to the plaintiff and 45% to the defendant:
Value $430,000.00
Less Mortgage 77,957.00
Net Equity $352,403.00
55% to Plaintiff $193,821.65
45% to Defendant $158,581.35
The implementation of this distribution shall be detailed in that section of this memorandum decision that computes and details the distribution of the parties' assets.
ENHANCED EARNINGS
A college degree and the enhanced earnings it generates may be considered as marital property, falling within the province of equitable distribution. See, O'Brien v. O'Brien, 66 NY2d 476 (1985); Brough v. Brough, 285 AD2d 913. But, if not carefully analyzed and considered, the value of the enhanced earnings becomes extraordinarily problematic, and subject to a variety of criticisms. See, Tippins, " Outside Counsel: O'Brien Revisited, A Contribution Solution to Classification," N.Y. Law Journal, June 10, 2002.
In a valuation of enhanced earnings capacity, typically, the baseline earnings (after tax earnings of a person without the degree/license) are deducted from the topline earnings (after tax earnings of a person with the advanced degree/license). The yearly earnings differential is projected over the expected worklife and reduced to present value to calculate the total value of the enhanced earning capacity. See, Brisbane Consulting Group, Dec. 2001 Matrimonial Newsletter, " The Valuation of Enhanced Earning Capacity," Louis J. Cercone, Jr.
The expert utilized by the plaintiff, David Marcus, credibly testified that he reviewed evaluation reports from defendant's employer, income tax returns, and history of promotions to form a basis of his opinion. Utilizing Department of Labor Statistics, he compared baseline earnings for a 45-49 year old male with an Associate's Degree in the New York Metropolitan area to be $79,000. The defendant's actual earnings from his W-2/tax returns was $137,000. Tax impacting the earnings differential of $58,000 ($137,000-$79,000) resulted in a net computation of $36,335. Projecting this figure to defendant's 65th birthday, and applying a 3% discount rate, resulted in a net present value of the defendant husband's enhanced earnings capacity from his Bachelor's Degree in Marketing to be $431,000.
Our Court of Appeals, through Judge Smith's valorous dissent in Holterman v. Holterman, NY2d (June 10, 2004), warns us of the consequences when "wooden applications" of statutory formulas/theories are made without regard to common sense, practical implications. Similarly, the concern in computing enhanced earnings is that "many experts simply 'plug' numbers into a computer model, generating a conclusion that ignores the facts of the case." See, Brisbane Consulting Group, Dec. 2001 Matrimonial Newsletter, supra.
Here, a simple mathematical and rigid application, without an individual analysis that considers the "unique aspects" of the license/degree holder's circumstances, reflects, in my view, "an improbable and legally unsound" expert theory (see, Desnes v. State of New York, 100 AD2d 712, 713). The plaintiff's own expert acknowledged he did not know what defendant's responsibilities were; he didn't know whether defendant secured clients; nor, did he know whether the defendant's employer had a marketing department. He quite candidly agreed that if defendant were not using the Bachelor's Degree in Marketing, it would have no value. The testimony of defendant's immediate supervisor, T.G., reflected that he was wholly "unfamiliar" with the nature of the defendant's degree, or the courses he took. While the degree was certainly "helpful" to performing his functions, it is unequivocal that the college degree was not a requisite, nor was it professionally relevant to the defendant's position. Although defendant himself objected to the admissibility of his performance evaluation, its admittance into evidence revealed a "job description" for defendant's position — which job description did not necessitate a degree in marketing.
To urge, as the plaintiff does here, that the defendant's employment is based upon a degree in marketing earned during the marriage, would be to "disregard the pragmatic and individualized analysis that McSparron commands." See, Fanelli v. Fanelli, 740 NYS2d 823. To avoid "transmuting the bonds of marriage into the bonds of involuntary servitude" (see, DeCaprio v. DeCaprio, 162 AD2d 944), a fact-driven analysis is required.
The "economic reality" that was cogently detailed in Fanelli, supra, underscores the need to apply some common sense in measuring the value attributed to the degree holder. While the problem of subscribing the appropriate valuation to licenses and degrees has been described as "calling for definition of the indefinable" (See, Tippins, supra), vigilance in analyzing this degree as it relates to defendant's employment warrants careful consideration by this Court. Towards such analysis, I have considered this degree as it relates to the following factors:
1. Salary structure.
2. Job description.
3. Personnel records from employment.
4. Nexus of job duties compared to degree obtained.
5. Prior employment — working up corporate ladder within company.
6. Timing of salary increases, and amounts.
Upon my careful consideration of these factors, this record supports the contention that the Bachelor's Degree in Marketing did not, at all, enhance defendant's earning capacity. McAlpine v. McAlpine, 176 AD2d 285-287; Pudlewski v. Pudlewski, 309 AD2d 1296.
As an aside, and less significantly, there was no testimony or coveture analysis proffered, that addressed those college credits that were obtained prior to the marriage — the defendant had already earned an Associate's Degree prior to the marriage. Domestic Relations Law § 236[B][1][d][3] defines "separate property" in relevant part as "the increase in value of separate property, except to the extent that such appreciation is due in part to the contributions or efforts of the other spouse." There was no dispute that the defendant's Associate's Degree was earned prior to the marriage, and should not be subject to equitable distribution. See, Domestic Relations Law § 236[B][1][d][1]; Markopoulos v. Markopoulos, 274 AD2d 457. The omission by plaintiff's expert to address the coveture of this degree, and the attempt to value a degree which includes credits accumulated prior to marriage, is inappropriate. See, Hickey v. Hickey, 256 AD2d 383. The use of the Associate's Degree as a "baseline" was presumably utilized to exclude the two year degree, but there was no testimony or evidence that addressed the issue directly. Such analysis, even if appropriately detailed, would not have affected my determination herein, as there is no enhanced earnings value to compute through coveture.
Notwithstanding my denial of plaintiff's interest in the defendant's alleged enhanced earnings capacity, I have carefully considered his present and future earning capacity and the plaintiff's contribution thereto as factors in fashioning an appropriate award of maintenance.
See Domestic Relations Law § 236[B][6][a]; Hartog v. Hartog, 85 NY2d 36.
MAINTENANCE
The amount and duration of maintenance, if any, is committed to the sound discretion of the trial court, and every case must be determined on its own unique facts. See, Mazzone v. Mazzone, 290 AD2d 495; Gaglio v. Molnar-Gaglio, 300 AD2d 934, 939. The trial court is required to consider the parties' pre-separation standard of living in determining the appropriate amount and duration of maintenance (see, Hartog v. Hartog, supra). The trial court must also consider the pre-separation standard of living in the context of the other factors, and then, in its discretion, "fashion a fair and equitable maintenance award" (see, Domestic Relations Law § 236[B][6][a][1]-[11]; Hartog v. Hartog, supra. Towards that end, I have considered all of the "factors," including but not limited to the income and property of the parties, including distributed marital property; the duration of the marriage; age and health of the parties; present and future earning capacities; ability of the plaintiff to be self-supporting; reduced or lost lifetime earning capacity as a result of foregone or delayed education; the presence of the children in the marital home (both are over 21); tax consequences; contributions and services of the defendant to the plaintiff's career, and any other relevant factor.
In considering the financial circumstances of both parties, it is clear from the orderly presentment and unchallenged accuracy of the parties' tax returns that the defendant's income from employment is $147,000 [2003], and the plaintiff's income is $8,000 [2003].
The only other assets the parties have available to them is equal division of liquid assets [$51,600 each], equal division of retirement accounts [$137,250 (approximate market value) each], equal division of stock options, and their respective interest in the marital home as determined herein [$193,821.65 to plaintiff, $158,581.35 to defendant].
I have considered that prior to the divorce, the defendant had been paying the carrying charges for the marital home after he departed in 1998 and also provided the plaintiff what he described but did not detail as "his full support." At that juncture, the plaintiff was clearly not self-supporting, and relied on that support as provided by defendant. Upon initiation of this action, plaintiff then sought maintenance [see, Calandra v. Calandra, 303 AD2d 704]. The pendente lite order of this Court (Ross, J.) dated December 6, 2002 directed the defendant to pay to the plaintiff $350 per week as and for maintenance and $275 per week in child support. It also directed the defendant to pay the carrying charges on the marital home (mortgage, taxes, insurance) totaling $1,269 per month.
The parties have been married for 24 years (August 19, 1975 to commencement date), and at time of trial, each was 50 years old. Each was in good health, and although the wife's net worth statement and post-trial submission reflected that she suffers from mental depression and anxiety, no competent evidence was presented at trial that would enable me to make such determination.
The wife's earnings on a part-time basis as a medical billing assistant is $8,000 per year. Given her age and experience, even full time employment in the same area would provide minimal possibilities for substantially increasing her income. The defendant, on the other hand, has seen exponential increases in salary that underscore the career advancement he has made, from $73,000 in 1999 to $147,000 in 2003, reflecting a 100% increase in compensation in a relatively short period. The high regard had for him at the corporate level was detailed and embellished at trial by his supervisor, T.G. It is only logical that his salary will continue to increase, especially given the superlative evaluation he received. I have especially afforded considerable weight to the sacrifice made by the plaintiff, in terms of her lost earning capacity as a result of foregoing the nursing school education she previously commenced. While I have previously detailed the enrollment of the plaintiff in a nursing program, and her success after the first semester, I could not help but conclude, based upon my assessment of the witness, that her simultaneous employment, education, care for the children, household chores, and support for the defendant all made it physically impossible for a continuation of her studies. These events in the plaintiff's life were not a passing period of self-sacrifice. Rather, they reflected a continuous and literal embodiment of her desire to see her family subsist and flourish — all at the expense of her own career and potential. Her endurance and impermanence were chronicled and firmly grounded with her testimony before me, the substance of which I found both compelling and laudable. It would be financially catastrophic, if not unconscionable, if the prejudice inured to the plaintiff after her herculean sacrifice, loyalty, and commitment were not addressed by an award of maintenance. This foregoing of educational or career opportunity in nursing (Domestic Relations Law § 236[B][6][a][5]), coupled with her financial and other indirect contributions to the marriage (Domestic Relations Law § 236[B][6][a][5]) were extraordinarily significant, if not overwhelming, to my consideration.
Even after this decision is rendered, the parties' child, K., although 21, will still reside with the plaintiff, limiting the plaintiff's ability to secure full-time employment. I have mentioned this not as an especially significant factor, because of K.'s age (23). But, because of that continued level of commitment to K. that will affect plaintiff's ability to work outside the home, I have considered it.
Based upon the record before me, the wife's role as primary care giver for the parties' children, enabled the defendant to devote virtually all of his time and energy to his career, his education, and his attempts at two business ventures. His accomplishments, facilitated by his efforts and the plaintiff's sacrifices, resulted in the salary defendant now enjoys and which was the primary source of the parties' income throughout the marriage.
With respect to the tax implications of the maintenance award, IRS Code § 71 and § 215 provide that maintenance awards are to be taxable to the recipient and deductible by the payor unless the Court specifies otherwise, or the parties reside together, neither of which is applicable here.
Accordingly, the defendant shall pay to the plaintiff the sum of $692.31 per week ($3,000 per month) in non-durational lifetime maintenance.
Said payments of maintenance shall commence upon the purchase by plaintiff of defendant's interest in the marital home, as detailed herein, which shall take place within 45 days of the service of the findings/judgment with notice of entry, or, in the event the plaintiff elects not to purchase the home, it shall be placed on the open market until it is sold, with proceeds divided in accordance with the schedule set forth on page 12 herein. In either event, the pendente lite order of this Court shall continue, until the earliest occurrence of the above events, at which time this determination of maintenance order shall commence.
For purpose of interim compliance, I note that the pendente lite order with respect to child support shall terminate on June 24th when M. becomes 21.
RETROACTIVE MAINTENANCE
Domestic Relations Law § 236 (B)(6)(a) provides that any order of maintenance shall be effective as of the date of application. Given the summons with notice was served on September 23, 2002, it is incumbent to calculate the retroactive support and credit the defendant with any amounts of maintenance paid pursuant to the pendente lite order of this Court. See, Chan v. Kwan Chan, 267 AD2d 413; Crane v. Crane, 264 AD2d 749; Mellen v. Mellen, 260 AD2d 609; Ferraro v. Ferraro, 257 AD2d 598. The parties have stipulated that for the period of the pendente lite order, the defendant was in arrears in the amount of $5,347.27.
It should be noted that in attempting to make a determination of payments (other than mortgage) made by defendant pursuant to the pendente lite order of this Court, other than a stipulation as to arrears ($5,347.27), proof of what other obligations the defendant had paid was either inconclusive, missing, or not adequately detailed.
The period from the commencement of this action (9-23-02) until the filing of the pendente lite motion (11-7-02) reflected a six week period, during which time the mortgage had been paid by the defendant. Pursuant to Domestic Relations Law § 236(B)(7)(a), maintenance and child support is to be awarded as of the date of application therefor, and any retroactive amount of maintenance [or child support] due shall be paid in one sum or periodic sums, as the Court shall direct, taking into account any amount of temporary maintenance [or child support] which has been paid ( Verdager v. Verdager, 230 AD2d 786, 788-789). It is upon these considerations that an award of retroactive maintenance is made in the amount of $2,884.86, computed as follows:
Commencement of Action (9-23-02) to
Filing of Pendente Lite Motion (11-7-02)
6 weeks times; $692.31 = $4,153.86
Less: Credit for Mortgage, Tax
And Insurance 1,269.00
$2,884.86
Absent specific proof of what other expenses defendant paid and plaintiff received, and on the basis of this record, I am unable to provide any other credits to the defendant for the period of the pendente lite award (11-7-02 to 6-15-04). Accordingly, without any other credit or debit, I am incorporating the stipulation of plaintiff and defendant that, pursuant to the pendente lite order, the defendant was in arrears in the amount of $5,347.27. The plaintiff shall receive a credit of this amount from defendant's share of equitable distribution, as summarized herein.
LIFE INSURANCE
Under the circumstances of this case, and to secure prospective maintenance obligations, the defendant is directed to secure, forthwith, a term life insurance policy in the amount of $500,000, naming the plaintiff as irrevocable beneficiary. See, Domestic Relations Law § 236[B][8][a]; Hartog v. Hartog, 85 NY2d 36; Wilson v. Wilson, 203 AD2d 558; Comstock v. Comstock, 1 AD3d 307.
COLLEGE EXPENSES
Pursuant to Domestic Relations Law § 240 (1-b) (c) (7), the court may direct a parent to contribute to a child's education, even in the absence of special circumstances or a voluntary agreement of the parties, as long as the court's discretion is not improvidently exercised in that regard (see, Matter of Cassano v. Cassano, 203 AD2d 563; Cohen v. Cohen, 203 AD2d 411; Manno v. Manno, 196 AD2d 488). "In determining whether to award educational expenses, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice" ( Manno v. Manno, supra, at 491).
In the pendente lite order of this Court, I decided as follows:
"Plaintiff also seeks, pursuant to DRL § 240, to have defendant pay M.'s college expenses at the University of Connecticut, where he is in his sophomore year, which the husband has documented at $10,532 per semester or $21,064 per year, before loans and grants, of which $6115 per year is charged for room and board. In determining whether to award educational expenses, and how much to award, the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice. Cohen v. Cohen, 203 AD2d 411; Manno v. Manno, 196 AD2d 488; Wieser v. Wieser, 253 Ad2d 467.
The best interests of M. would be served by the continuation of his post secondary education. The husband alleges that certain accounts held by the parties jointly were intended as accounts for their son's college education. The wife disputes this claim, alleging that these are marital savings subject to equitable distribution. The court has insufficient information from which to determine this issue and, based on the conflicting affidavits here presented, concludes that the issue should be referred to the trial court (See Scheitauer v. Scheithauer, 162 AD2d 867) for full hearing, at which time the husband may seek a credit for the sums paid if the court determines that the funds in question were in fact designated for M.'s college education. Accordingly, the husband shall be directed to pay M.'s college expenses not covered by other loans or grants.
The court has already, in its computation of child support, allowed the husband a credit for the sums applicable to room and board."
At the time of trial, however, the record is devoid of any information as to defendant's claim that the funds in question were designated for M.'s college education. Accordingly, I cannot credit any sums claimed.
Prospectively, the defendant cannot be compelled to contribute to M.'s college education. Inasmuch as M. turns 21 on June 24th (d.o.b. 6/24-83), defendant cannot be directed to contribute towards the college education of a child who is 21 years of age or older, unless that parent has voluntarily agreed to do so. See, Youseff v. Cantelmo, 278 AD2d 489; Costello v. Costello, 304 AD2d 517. No such consent was proffered during this trial.
COMPUTATION/CONCLUSION
The plaintiff, in an exercise of the discretion of this Court, should be given the option of purchasing the marital home. See, Ierardi v. Ierardi, 151 AD2d 548; Shahidi v. Shahidi, 129 AD2d 627. The buy-out of defendant's interest shall be $150,349.22, computed as follows:
Defendant's interest $158,581.35
Less: Stipulated Arrears 5,347.27
Less: Maintenance Arrears 2,884.86
Net to Defendant: $150,349.22
I note that pursuant to the stipulations regarding equal division of retirement accounts (totaling $274,500), liquid assets ($130,200) and stock options (unvalued, but to be divided equally), there are sufficient assets available to the plaintiff to facilitate a buy-out or refinance. If she wishes to accomplish a buy-out, she shall do so within 45 days of the date of service of the Judgment and Findings of Fact/Conclusions of Law with notice of entry, along with notification of her intention to do so. Should plaintiff elect not to buy out the defendant's interest in the marital home, it shall be placed on the market, as requested by defendant, within 45 days of the date of service of the Judgment and Findings of Fact/Conclusions of Law with notice of entry.
In the event of a sale, both parties shall cooperate with a licensed multiple listing service broker in marketing, pricing, and in all respects, facilitating the sale of the home. In the event the parties cannot agree on a broker, either party may make application to the Court. From the proceeds of the sale, the following payments shall be directed as per the discussion herewith:
A. From the Gross Proceeds (Sales Price)
1. All closing costs — broker, title charges, transfer taxes.
B. Net Proceeds
1. Divided 55% to plaintiff and 45% to defendant.
C. From Defendant's 45% Interest of Net Proceeds
1. Payment to plaintiff of stipulated arrears ($5,347.27).
2. Payment to plaintiff of maintenance arrears ($2,884.86)
LEGAL FEES
Normally, a hearing is required before the court can determine the competing claims. Stern v. Stern, 114 AD2d 408; Wood v. Wood, 73 AD2d 963 and Ross v. Ross, 90 AD2d 541. However, in this instance, the parties have stipulated to have the Court determine the issue of counsel fees on the basis of the papers submitted by the parties. Enwistle v. Enwistle, 92 AD2d 879; Ryan v. Ryan, 92 AD2d 889.
The award of reasonable counsel fees is a matter within the sound discretion of the trial court ( Walker v. Walker, 255 AD2d 375). The issue of counsel fees is controlled by the equities and circumstances in each case, and the court must consider the relative merits of the parties' positions and their respective financial circumstances in determining whether an award is appropriate ( DeCabrera v. DeCabrera-Rosete, 70 NY2d 879). An evaluation of what constitutes reasonable counsel fees is a matter generally left to the sound discretion of the trial court (see, Morken v. Morken, N.Y.L.J., March 25, 2002). See also, DeCabrera v. DeCabrera-Rosete, supra; Pena v. Pena, 255 AD2d 498; Matter of Bailey, Marshall Hoeniger v. Merzon, 210 AD2d 474. The trial court is often in the best position to judge those factors integral to the fixing of counsel fees ( Pauk v. Pauk, 232 AD2d 386; Levine v. Levine, 179 AD2d 625.
The plaintiff moves this Court to grant her counsel fees and expenses in the amount of $28,726.20. The wife's attorney has also included billing records/time sheets detailing and setting forth the services alleged to have been provided to the wife in accordance with the retainer agreement signed by the wife. The parties have submitted net worth statements containing their income and expenses during the course of the subject litigation.
It is well settled that an award of attorney's fees should be "reasonable in light of the skill, experience and background of counsel, the nature of the services rendered, the difficulty and complexity of the issues of fact and law involved in the case, as well as the time actually spent on the case" ( Willis v. Willis, 149 AD2d 584).
Courts generally do not attempt an item-by-item review of time records and instead make an overall assessment as to what constitutes a fair and reasonable fee under the circumstances ( Scheinkman, New York Law of Domestic Relations, § 19.5 at 136, citing Reid v. Reid, 166 AD2d 811). However, given the amount of legal fees requested, the Court carefully reviewed counsel's affirmation as it related to the services performed, and the "circumstances" of this case (see, DeCabrera v. Cabrera-Rosete, 70 NY2d 879, 881). I have weighed and considered the following: that there were significantly controverted issues of fact or law in this matrimonial matter, it having been tried after several days of testimony; the merit of each of the parties' positions, the prompt trial had herein; and the superior financial/earnings position of the defendant ($147,000 vs. $8,000).
One party should not have greater access to legal counsel than the other simply because she/he may have greater wherewithal to pay. O'Shea v. O'Shea, 93 NY2d 187; Charpie v. Charpie, 271 AD2d 171. In this instance, both parties were well represented, and each attorney made concerted efforts to resolve the case. Towards that end, I further note that plaintiff's counsel, in the face of significant unpaid invoices from the non-monied spouse, proceeded to trial in this relatively complex matter.
While the hourly rate set forth in counsel's retainer agreement with the wife is in keeping with the rates charged by other area practitioners with similar backgrounds and experience, there are "other circumstances" of the case (see, DeCabrera v. Cabrera-Rosete, supra) as well. The Court has considered the claim of the husband of delay ( MacMurray v. MacMurray, 187 AD2d 840), obstructionist tactics ( Merrick v. Merrick, 190 AD2d 515) and the merit of each of the parties' positions ( Brancoveanu v. Brancoveanu, 177 AD2d 614). Notwithstanding the determination herein, the claim of enhanced earning capacity was viable, albeit unsuccessful. The plaintiff's efforts to pursue this theory should not be penalized with the contention here that she was "obstructionist" or that her position was untenable. The award of legal fees is not intended to address a party's decision to proceed to trial, rather than agree to a settlement. See, Comstock, supra.
The Court notes that as a result of the property settlement and equitable distribution of the marital assets, the plaintiff is not in possession of the financial resources necessary to meet her obligations towards counsel fees. In fact, plaintiff's assets will be substantially exhausted to purchase/re-finance defendant's interest in the marital home.
Accordingly, the plaintiff's counsel, R.B., Esq., is granted counsel fees in the sum of $25,000.00, to be paid by defendant within 45 days after the service of the Judgment/Findings with notice of entry.
Both parties are directed to submit Findings of Fact and Conclusions of Law within 60 days of the date of this decision. See, Uniform Rules for Trial Courts § 202.48(a).
This constitutes the decision of this Court.