N.F. v. O.F.

Unpublished Opinion

Counsel for Plaintiff: Mitchell Lieberman, Esq., and Remy Lieberman, Esq., of Lieberman & Lieberman PLLC

Counsel for Defendant: Jeff Klein, Esq., of Mulhern & Klein

HON. ANAR RATHOD PATEL, A.J.S.C.

The Court presided over a seventeen (17)-day non-jury trial in this matter on the following dates: October 23, 24, 30, November 1, 8, 9, 13, 15, 16, 28, 30, December 1, 5, 6, 8, 11, 12, 2023, ^[1] as to the issues of custody and access, and financial resolution of child support, equitable distribution, and counsel fees. Plaintiff was represented by Mitchell Lieberman, Esq. and Remy Lieberman, Esq., of the law office of Lieberman & Lieberman PLLC. Defendant was represented by Jeff Klein, Esq. of Mulhern & Klein. The parties' three children were represented by Attorney for the Children ("AFC") Gloria Marchetti-Bruck, Esq. of Gloria Marchetti-Bruck, Esq.

Parties filed the consolidated trial transcripts ("Tr.") on January 4, 2024, and post-trial memoranda on January 31, 2024. See NYSCEF Doc. Nos. 558-570. After considering the sworn testimony of the parties in addition to the nine (9) witnesses at trial, the Lincoln hearing with the parties' three children, the documents as well as audio and video recordings admitted into evidence, and the post-trial submissions, the Court hereby makes the following findings of fact and reaches the following conclusions of law.

Relevant Factual and Procedural History

The parties were married on November 21, 2010, and are the parents of [REDACTED], [REDACTED], and [REDACTED], (collectively, the "Children"). Upon their marriage, the parties relocated to [REDACTED], where they purchased the marital residence located at [REDACTED] ("Marital Residence") on or around November 3, 2010. Plaintiff grew up generally in [REDACTED], where she attended high school; her father and stepmother also reside in [REDACTED].

On June 17, 2021, Plaintiff commenced a separate divorce proceeding under Index Number 58260/2021 for dissolution of the marriage pursuant to DRL § 170(7). The parties, represented by counsel, entered into an interim parenting agreement on July 23, 2021, wherein they sought to resolve certain issues related to their impending divorce including jointly residing in the Marital Residence, an interim access schedule with the Children, and an agreement to "refrain from engaging in any conduct sufficient to make out a family offense under Article 8 of the Family Court Act." Def. Ex. L (7/23/21 Interim Agreement). The parties filed a stipulation of discontinuance of said action on July 23, 2021.

Less than three months later, on October 8, 2021, Plaintiff commenced the instant divorce proceeding by the filing of a Summons and Complaint for dissolution of the marriage pursuant to DRL § 170(7). The case was initially assigned to the Honorable Melissa A. Loehr; the case was reassigned on July 18, 2022, to the Honorable John P. Colangelo; the case was again reassigned on October 3, 2022, to this Court (Patel, J.). The case is currently assigned to the Honorable Rolf Thorsen.

In approximately December 2021, Plaintiff vacated the Marital Residence and moved in with her father and stepmother, temporarily. In June 2022, she moved to a home, owned by her father, located at [REDACTED], where she currently resides and pays monthly rent of $5,200. Defendant continues to reside in the Marital Residence. On December 9, 2021, the parties entered into a second interim agreement that provided for shared physical and legal custody of the Children, and an amended access schedule now that the parties were residing in separate homes. Def. Ex. M (12/9/21 Interim Agreement) ("December 9 Interim Agreement"). The interim access schedule provides the following (generally): during week 1, Defendant shall have access time with the Children from Monday after school through Wednesday morning; Plaintiff shall have access time from Wednesday after school through Monday before school; during week 2, Defendant shall have access time from Monday after school through Wednesday morning; Plaintiff shall have access time from Wednesday after school through Friday morning; Defendant shall have access from Friday after school through Wednesday morning in accordance with week 1.

From approximately November 30, 2021-when the December 9 Interim Agreement went into effect-through May 11, 2023, the parties adhered to the aforementioned equal access schedule (colloquially known as a 5-2-2-5 schedule). On May 11, 2023, the parties appeared before this Court on multiple issues, one of which was Plaintiff's application to suspend Defendant's overnight access with his daughter, [REDACTED], based on a series of events culminating in a handwritten letter by the child to her mother describing the strained relationship with her father and expressing her desire to reduce, if not cease, contact with her father, as well as a May 8, 2023 encounter wherein Defendant enlisted police officers to assist in exercising his access time with [REDACTED] Having heard from both parties and the AFC, the Court directed that Defendant's overnight access with [REDACTED] is suspended, that his alternate weekend access with [REDACTED] is limited to Sundays from 6:00 p.m. until 9:00 p.m., that [REDACTED] may-at her discretion-expand the access time to include midweek access with her father, and that the parties engage a family therapist to engage with Defendant and [REDACTED]. See NYSCEF Doc. No. 266 (5/11/23 So Ordered Tr.). The parties informed the Court on May 31, 2023, that they had agreed upon the engagement of [REDACTED] as a family therapist. As of at least February 13, 2024, the Court understands that [REDACTED] has elected not to exercise her discretion to spend additional time with her father. NYSCEF Doc. No. 579 at 2-3 (2/13/24 So Ordered Tr.).

Concurrent with the divorce proceeding, the parties have separate cross family petitions pending in Family Court. Defendant filed a petition on October 5, 2021; Plaintiff filed a petition on October 6, 2021. The resulting temporary orders of protection were most recently extended on April 23, 2024.

With respect to the parties' financial circumstances, Plaintiff, who was 45 years old at the time of trial, currently resides at [REDACTED]. Plaintiff is employed full-time as [REDACTED], where she has worked for seventeen years. She earned her Bachelor of Science from Cornell University and Juris Doctor from Georgetown Law School. She did not identify any health conditions or disabilities.

Plaintiff filed an updated statement of net worth ("SNW"), her 2022 federal tax return, and 2022 New York State tax return on October 16, 2023. NYSCEF Doc. No. 437. Plaintiff's declared earnings on her 2022 W-2 are $611,816. She lists monthly expenses totaling $21,627.86, which include her share of the mortgage and carrying charges on the Marital Residence and monthly rent of $5,200; assets totaling $1,554,387, comprised of two checking accounts with a total balance of $18,721, a rental income account totaling $6,258, five savings accounts totaling $1,008, her interest in the Marital Residence, which was purchased for $1,355,000 on November 3, 2010, three retirement accounts totaling $1,359,439, a 2014 Acura titled to Plaintiff, a Tesla titled to Defendant, a life insurance policy with a cash surrender value of $47,961, a restricted stock plan with an unknown value, and 529 Plans totaling $121,000. She lists liabilities totaling $367,314, comprised of the mortgage on the Marital Residence and $50,000 owed to Jamila Hall for legal fees. Her SNW also states that she has, to date, paid her former counsel $181,184 and her current counsel a total of $283,739.

Defendant, who was 50 years old at the time of trial, currently resides in the Marital Residence. Defendant is employed full-time as an [REDACTED], where he has worked since 2020. Prior to that, he worked as a [REDACTED] from approximately 2016 through 2018. From approximately 2011 through 2016, Defendant did not work for an employer-for some period, he took classes, worked with Plaintiff's father on a business venture for an approximately 30-day period in 2012, and worked on his own business plan. Defendant earned his Bachelor of Science and Masters in Business Administration from The Wharton School. He did not identify any health conditions or disabilities.

Defendant filed an updated SNW, as well as his 2022 federal tax return, on October 17, 2023. NYSCEF Doc. No. 441. Defendant's declared earnings on his 2022 W-2 are $313,810. He lists monthly expenses in excess of $32,830 ^[2]; assets totaling $759,271.56 comprised of cash, six bank accounts, tenant's security deposit, and the Children's piggy banks, his interest in the Marital Residence which was purchased for $1,355,000 on November 3, 2010, retirement accounts totaling $567,305.25, a 2015 Tesla titled to Defendant, a 2019 Mercedes titled to Defendant, a life insurance policy with a cash surrender value of $47, investment accounts totaling $118,062.72, and [REDACTED] restricted awards/units totaling $49,880, of which he states that 36 unvested shares were granted prior to the date of commencement. NYSCEF Doc. No. 441 at 18. He discloses liabilities totaling $388,984, which includes the mortgage on the Marital Residence. His SNW also states that he has, to date, paid his former counsel $247,359 and his current counsel a total of $20,000.

Pre-Trial Proceedings

The parties' relationship throughout the proceeding has been hostile and antagonistic, as is evidenced by a mere cursory review of the docket, which reveals extensive motion practice, letter writing campaigns, and the need for Court intervention as to almost every issue presented in this case including, but not limited to, the payment of the monthly mortgage on...