S.H. v. E.S.

Decision Date24 October 2014
Docket NumberNo. xx/14.,xx/14.
Citation43 N.Y.S.3d 769 (Table)
Parties S.H., Plaintiff, v. E.S., Defendant.
CourtNew York Supreme Court

Teitler & Teitler LLP, New York, Attorneys for the Plaintiff.

Cohen Clair Lans Greifer & Thorpe LLP, New York, Attorneys for the Defendant.

LINDA CHRISTOPHER, J.

This action for divorce was commenced on November 4, 2009. On September 8, 2011 the Court granted defendant a divorce based on cruel and inhuman treatment. The plaintiff did not contest the divorce. The parties entered into a stipulation entitled Custody and Parenting Agreement on September 9, 2010. The Court held a trial for 28 days on the issues of equitable distribution, child support, professional fees and maintenance over a period commencing September 8, 2011 and concluding January 23, 2012.1 The trial did not continue day to day due to some medical issues of one of the trial attorneys as well as certain scheduling issues of the attorneys and the Court. Upon conclusion of the trial, the Court took an unexpected medical leave of absence that extended for the better part of 2012.

The witnesses who testified before the Court included both parties as well as a number of experts whose reports were also submitted into evidence:

Experts

Reports from the following experts were submitted by the Husband:

a. Jonathan Miller, Michael J. Grassi, Richard A. Carlson, Miller–Samuel, Inc.—expert and reply reports for Westchester County House, Amagansett Beach House and Westchester County House No.2.
b. Joan Lipton, ParenteBeard LLC.—Expert and Reply Report for Expense Analysis and Compensation
c. Rona Wexler, Wexler Consulting LLC.—Expert Report

Reports from the following experts were submitted by the Wife:

a. John R. Johnson and Thomas A. Hutson, BST Valuation & Litigation Advisors, LLC—expert report and reply report.
b. Peter N. Davidson, MBA, ASA, Peter N. Davidson Co.—expert report and reply report.
c. John Philip Mason, Mason Appraisal Services—expert report and reply report.
d. Steven M. Kaplan, CPA/ABV, MBA, Eisman, Zucker, Klein & Ruttenberg, LLP—expert report and reply report.
e. Lynn Mizzy Jonas.

Christopher Gaillard, Jason Preston, and Edward Lewand of Gurr–Johns International were retained jointly by the Husband and the Wife and issued expert reports to both with respect to the valuation of personal property. The parties agree upon the valuations contained in these reports.

At the conclusion of the trial, the Court reserved decision, and the Court received post trial memoranda, as well as Stipulations compiled and submitted by each side.

After considering the testimony of the parties and the witnesses, a careful review of the documents admitted into evidence which include numerous "plan" documents and expert reports that the Court spent many, many hours reviewing, the parties' Net Worth Statements, Stipulation of Facts Not in Dispute and the post trial memoranda, the Court makes the following findings of facts deemed established by the evidence and reaches the following conclusions of law.

Divorce Grounds

After inquest, the defendant is granted a divorce on the ground of cruel and inhuman treatment by the plaintiff. The plaintiff did not contest the defendant's testimony on grounds and consented to the divorce to defendant based on cruel and inhuman treatment.

Background

The parties were married on ____, 1994. The action for divorce was commenced on November 4, 2009. Plaintiff, S.H. ("Husband"), was born ____ 1964 (age 46 at the time the trial commenced). Defendant, E.S. ("Wife"), was born on ____, 1965 (age 46 at the time the trial commenced).

The parties have four children, R. H., born on ____, 1994 (age 17 at the time of trial), social security number xxx-xx-xxxx, W. H., born on ____, 1996 (age 15 at the time of trial), social security number xxx-xx-xxxx, G. H., born on ____, 1999 (age 12 at the time of trial), social security number xxx-xx-xxxx, and A. H., born on ____, 2002 (age 9 at the time of trial), social security number xxx-xx-xxxx.

The issues of custody, access and decision-making were resolved by a Custody and Parenting Agreement dated September 2010. The terms will be incorporated by reference into the Judgment of Divorce.

The parties jointly own a house known as Westchester County House, New York. The parties purchased the marital residence in or about ____, 2005 for $8 million and the house is encumbered by both a home equity line of credit and a mortgage. The parties made significant improvements to the residence.

The Wife presently resides at Westchester County House, New York, with the parties' children.

The Husband presently resides at Westchester County House # 2, New York, which he purchased in or about ____, 2010, with his separate property.

The parties jointly own a house known as ____, Amagansett, New York (the beach house). This house was purchased in or about ____, 2000 and is currently encumbered by a mortgage. They agreed upon its value at $7,425,000.

The parties' jointly owned vacation properties known as Weeks 10 and 47 at the ____, Colorado. They have been sold and the net proceeds from the sale were divided equally between the parties pursuant to the Stipulation dated September 10, 2010 ("September 10, 2010 Stipulation").

The parties did not value their interests in either H., Ltd. or R ., LLC, and such interests are to be divided equally upon sale pursuant to Stipulation dated September 10, 2010.

Each party took an advance against equitable distribution and agreed to payment of interim living expenses pursuant to a Stipulation dated January 2010 (the "January 2010 Stipulation"). The complete terms and conditions of the January 2010 Stipulation are incorporated herein by reference.

Each party received from the parties' joint Bank account an advance on equitable distribution pursuant to Stipulation dated April 2010 (the "April 2010 Stipulation"). The complete terms and conditions of the April 2010 Stipulation are incorporated herein by reference.

Each party received as an advance on equitable distribution securities from the parties' joint B.'s investment account—3798 and distributed other assets pursuant to the Stipulation dated October, 2010 (the "October 2010 Stipulation"). The complete terms and conditions of the October 2010 Stipulation are incorporated herein by reference.

The parties entered into a confidentiality Stipulation concerning documents or information relating to B.PLC and Bank Capital, dated June 17, 2010. The complete terms and conditions of the Confidentiality Stipulation are incorporated herein by reference.

The parties entered into another stipulation regarding interim living expenses on June 1, 2011, the complete terms and conditions of which are incorporated herein by reference.

Plaintiff was employed by prior Bank from July 1993 until September 2008 at which time prior Bank went bankrupt and as of September 2008 Mr. H. ceased to be employed by prior Bank. The Husband's employment with Bank Capital commenced on September 22, 2008.

The Wife was employed by M.A. & S. from the summer of 1987 through February 1994.

The parties' children, ages 17, 15, 12 and 9, each attended private schools.

STIPULATED ASSETS AND VALUES

C. Accounts

Plaintiff's C. Checking Account x7117 had a balance of $0.00 as of the date of commencement.

Plaintiff's C. Account x0638 had a balance of $0.00 as of November 1, 2009.

F.R. ("FR") Accounts

Plaintiff's FR–6274 had a balance of $2,194 as of November 1, 2009. This is the Husband's separate property.

W. ("W") Accounts

Defendant's W–0605 had a balance of $17,760 as of November 6, 2009. This is the Wife's separate property.

Defendant's W–2130 had a balance of $14,098 as of November 6, 2009, which is marital property.

Defendant's W–7367 had a balance of $12,821 as of November 6, 2009. This is the Wife's separate property.

Defendant's W–9190 had a balance of $47,587 as of November 6, 2009, which is marital property.

Bank ("B") Accounts

The joint B–3798 had a balance net of margin debt of $13,400,175 as of November 1, 2009. This account had a balance net of margin debt of $15,406,788 as of July 31, 2011. This account is marital property.

Plaintiff's B–0957 had a balance net of margin of $3,393, 463.78 as of July 31, 2011. This account is the husband's separate property.

Plaintiff's F. 401k Account # 4452

The marital portion shall be distributed equally between the parties by QDRO or other order.

Prior Bank Pension Plan

The marital portion will be QDRO'd pursuant to Stipulation of the parties.

Westchester County House

Agreed fair market value of property is $7,600,000. Mortgage as of July 15, 2011—principal balance $1,995,322. HELOC as of July 15, 2011—principal balance $1,189,808. Wife's installation of pool—Wife to receive a credit of $100,000.

Wife's completion of Nanny Suite—Wife entitled to a credit (no stipulation as to the value of the credit).

Westchester County House Furnishings—Wife entitled to keep and to be assessed the value pursuant to Stipulation of the parties.

Amagansett House

Stipulation FMV is $7,425,000. Furnishings to be dealt with pursuant to Stipulation. No Stipulation as to the distribution of the asset.

P. Road

Purchased by Husband with advances against equitable distribution; this is the Husband's separate property. Furnishings and 2008 Aston Martin pursuant to Stipulation.

2009 Suburban and ES 2009 Lexus GX470

Husband to keep his Suburban/Wife to keep her Lexus. Wife to pay Husband $6,500 to equalize.

Bank 2010 and 2011 Share Value Plan (SVP)

Husband's separate property pursuant to Stipulation.

Bank 2011 Contingent Capital Plan

Husband's separate property pursuant to Stipulation.

Bank 2010 Plan Cycle Capital Value Incentive Plan

Husband's separate property pursuant to Stipulation.

Bank 2010 Cash Value Plan (CVP)

Husband's separate property pursuant to Stipulation.

Frequent Flyer/Hotel Points

Agreed to pursuant to Stipulation.

Children's Accounts

To be maintained as they are currently set up.

Business Interests

H., Ltd.—To be sold pursuant to Stipulation and proceeds divided equally.

R., LLC—To be sold...

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