NEW YORK SUPREME COURT COUNTY OF NEW YORK MATRIMONIAL PART 7
SETTLEMENT AGREEMENT AND STIPULATION OF SETTLEMENT
Date of Execution: May 12, 2023
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PREAMBLE
This Settlement Agreement and Stipulation of Settlement (hereinafter, the "Agreement") is made and entered into as of the 12th day of May, 2023, by and between:
JONATHAN R. CALDWELL ("Husband" or "Petitioner"), age 52, born March 17, 1970, presently residing at 14 Gramercy Park South, Apt. PH-A, New York, New York 10003,
and
DR. ELENA M. CALDWELL, née Baranova ("Wife" or "Respondent"), age 48, born September 4, 1974, presently residing at 320 West 76th Street, Apt. 12B, New York, New York 10023.
The Husband and the Wife are sometimes referred to herein individually as a "Party" and collectively as the "Parties."
RECITALS
WHEREAS, the Parties were lawfully married on June 21, 2008, in the City, County, and State of New York, and the marriage has been of approximately fourteen (14) years' duration; and
WHEREAS, two (2) minor children were born of the marriage, namely: Sophia Caldwell, born February 12, 2012, presently age eleven (11), and Alexander Caldwell, born August 29, 2014, presently age nine (9) (collectively, the "Children"); and
WHEREAS, the Parties separated on or about April 3, 2022, when the Wife vacated the marital residence located at 14 Gramercy Park South, Apt. PH-A, New York, New York 10003, and established a separate residence at 320 West 76th Street, Apt. 12B, New York, New York 10023; and
WHEREAS, the Husband filed a Petition for Dissolution of Marriage on June 14, 2022, and the action was assigned Index Number 312847/2022 in the Supreme Court of the State of New York, County of New York, Matrimonial Part 7, before the Honorable Patricia K. Lessing, Justice of the Supreme Court; and
WHEREAS, the Wife filed an Answer and Counterclaims on July 11, 2022, asserting, among other things, challenges to the validity and enforceability of the Prenuptial Agreement executed by the Parties on June 7, 2008; and
WHEREAS, prior to the marriage, the Parties executed a Prenuptial Agreement on June 7, 2008, fourteen (14) days prior to the wedding ceremony, at which time the Husband was represented by Gerald Sable, Esq. of Harwick & Sable LLP, 780 Third Avenue, Suite 3200, New York, New York 10017, and the Wife was represented by her own independent counsel, Miriam Fedorov, Esq. of Fedorov Law Office, 55 West 46th Street, Suite 901, New York, New York 10036; and
WHEREAS, in her Answer and Counterclaims, the Wife challenged the enforceability of the Prenuptial Agreement on the grounds of (a) inadequate financial disclosure by the Husband, (b) duress, and (c) unconscionability, and as part of this Settlement Agreement, the Wife voluntarily withdraws all such challenges to the validity and enforceability of the Prenuptial Agreement, and the Parties agree that the Prenuptial Agreement is valid and enforceable in its material terms; and
WHEREAS, the following proceedings have occurred in this matter:
(a) A Preliminary Conference was held on August 22, 2022, before the Honorable Patricia K. Lessing, J.S.C.;
(b) A pendente lite motion was decided on September 30, 2022, at which time the Court ordered temporary child support in the amount of $14,000 per month; the Court denied temporary spousal maintenance and denied the Wife's application for exclusive occupancy of the marital residence;
(c) Mutual discovery demands were served on November 15, 2022;
(d) Expert reports were exchanged on January 18, 2023;
(e) Depositions of both Parties were concluded on February 7, 2023;
(f) Court-ordered mediation was conducted on March 14, 2023, and April 5, 2023, before the Honorable Robert Castellano (Ret.) of Castellano ADR Services LLC, 100 Church Street, Suite 800, New York, New York 10007; and
(g) A settlement framework was reached at the second mediation session on April 5, 2023, and this Agreement memorializes and formalizes the terms of that settlement; and
WHEREAS, the Husband is represented in this action by Priya Anand, Esq. of Calderwood & Harkness LLP, 425 Lexington Avenue, 38th Floor, New York, New York 10017; and
WHEREAS, the Wife is represented in this action by Rachel Whitford, Esq. of Whitford Garza & Stein LLP, 600 Third Avenue, 22nd Floor, New York, New York 10016; and
WHEREAS, the Parties desire to settle all issues between them, including but not limited to equitable distribution of marital property, spousal maintenance, child support, child custody, and parenting time, and to resolve all claims and counterclaims arising out of or related to the marriage and the dissolution proceeding; and
WHEREAS, each Party acknowledges having had the opportunity to consult with independent legal counsel and independent financial advisors of his or her own choosing, and each Party has, in fact, retained and consulted with such counsel and advisors; and
WHEREAS, each Party enters into this Agreement voluntarily, free from fraud, duress, coercion, or undue influence of any kind, and with a full understanding of the nature, extent, and value of the marital estate and the rights being waived and retained herein; and
WHEREAS, the Parties intend that this Agreement shall be incorporated into and survive the Judgment of Divorce, and shall not be merged therein, so that the Agreement shall remain independently enforceable as a contract between the Parties;
NOW, THEREFORE, in consideration of the mutual promises, covenants, and agreements contained herein, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the Parties agree as follows:
ARTICLE I — DEFINITIONS
Section 1.1. As used in this Agreement, the following terms shall have the meanings ascribed to them below, unless the context clearly requires otherwise:
(a) "Agreement" means this Settlement Agreement and Stipulation of Settlement, including all Schedules attached hereto and incorporated herein by reference.
(b) "Commencement Date" means June 14, 2022, the date on which the Husband filed the Petition for Dissolution of Marriage in this action.
(c) "Date of Marriage" means June 21, 2008, the date on which the Parties were lawfully married in the City, County, and State of New York.
(d) "Date of Separation" means April 3, 2022, the date on which the Wife vacated the marital residence and the Parties commenced living separate and apart from each other.
(e) "Effective Date" means the date on which the Judgment of Divorce is entered by the Court in this action.
(f) "Judgment of Divorce" means the final judgment of divorce entered by the Supreme Court of the State of New York, County of New York, in this action, Index Number 312847/2022.
(g) "Marital Property" means all property acquired by either or both of the Parties during the marriage with marital funds, regardless of the form in which title is held, as defined under New York Domestic Relations Law § 236(B)(1)(c) and as further set forth in the Prenuptial Agreement, excluding Separate Property as defined herein.
(h) "Separate Property" means all property owned by either Party prior to the Date of Marriage and all appreciation thereon (whether active or passive, except as otherwise specifically provided in this Agreement), as well as gifts, inheritances, and trust distributions received by either Party during the marriage, all as defined in the Prenuptial Agreement and under New York Domestic Relations Law § 236(B)(1)(d).
(i) "Prenuptial Agreement" means the prenuptial agreement executed by the Parties on June 7, 2008, prior to the Date of Marriage.
(j) "Children" means Sophia Caldwell, born February 12, 2012, and Alexander Caldwell, born August 29, 2014, the two minor children born of the marriage.
(k) "Marital Residence" means the real property and cooperative apartment unit located at 14 Gramercy Park South, Apt. PH-A, New York, New York 10003.
(l) "Vacation Property" means the real property located at 44 Dune Road, Westhampton Beach, New York 11978.
(m) "CMC" means Caldwell Meridian Capital LLC, a New York limited liability company with EIN 26-4831057, with its principal office at 590 Madison Avenue, 30th Floor, New York, New York 10022.
(n) "CRH" means Caldwell Realty Holdings LP, a New York limited partnership with EIN 27-1924683, with its principal office at 590 Madison Avenue, 30th Floor, New York, New York 10022.
(o) "CRH GP" means Caldwell Realty GP LLC, a New York limited liability company with EIN 27-1924690, the general partner of CRH.
(p) "Trident National Bank" means Trident National Bank, with offices at 277 Broadway, New York, New York 10007.
(q) "Mercer & Hall" means Mercer & Hall Securities LLC, with offices at 399 Park Avenue, 16th Floor, New York, New York 10022.
(r) "Graymoor Trust Company" means Graymoor Trust Company, with offices at 520 Madison Avenue, 14th Floor, New York, New York 10022.
(s) "QDRO" means a Qualified Domestic Relations Order as defined under Section 414(p) of the Internal Revenue Code and Section 206(d)(3) of the Employee Retirement Income Security Act of 1974, as amended.
(t) "IRC" means the Internal Revenue Code of 1986, as amended.
(u) "DRL" means the New York Domestic Relations Law.
Section 1.2. All references to currency amounts in this Agreement are to United States Dollars. All references to "days" shall mean calendar days, unless otherwise specified. All references to statutes, rules, or regulations shall include any amendments thereto that may be enacted or promulgated from time to time.
ARTICLE II — PRENUPTIAL AGREEMENT
Section 2.1 — Validity and Enforceability. The Parties hereby agree and stipulate that the Prenuptial Agreement executed on June 7, 2008, is valid, binding, and enforceable in all respects. The Wife hereby withdraws, with prejudice, all claims and counterclaims set forth in her Answer and Counterclaims dated July 11, 2022, challenging the validity of the Prenuptial Agreement, including, without limitation, the claims of inadequate financial disclosure by the Husband, duress, and unconscionability. The Wife acknowledges that this withdrawal is made knowingly, voluntarily, and without reservation, as an integral component of the global settlement memorialized in this Agreement. The Wife further acknowledges that she has been advised by her counsel, Rachel Whitford, Esq., regarding the legal consequences of this withdrawal and waiver.
The terms of the Prenuptial Agreement shall govern the rights and obligations of the Parties to the extent consistent with the provisions of this Agreement. In the event that any provision of this Agreement expressly modifies, supersedes, or is inconsistent with a provision of the Prenuptial Agreement, the terms of this Agreement shall control. In all other respects, the Prenuptial Agreement shall remain in full force and effect.
Section 2.2 — Financial Disclosures. The Parties acknowledge and confirm the financial disclosures made in connection with the execution of the Prenuptial Agreement on June 7, 2008. At that time, the Husband disclosed total assets of approximately $25.2 million, as set forth in Schedule A attached to the Prenuptial Agreement and reproduced as Schedule A to this Agreement. At that time, the Wife disclosed total assets of approximately $310,000, as set forth in Schedule B attached to the Prenuptial Agreement and reproduced as Schedule B to this Agreement. The Wife's withdrawal of her inadequate-disclosure claim is made knowingly and voluntarily as part of this global settlement, and the Wife acknowledges that the financial disclosures attached to the Prenuptial Agreement were substantially accurate as of their date.
ARTICLE III — MARITAL ESTATE IDENTIFICATION AND VALUATION
Section 3.1 — Total Marital Estate. The Parties have engaged in extensive discovery, including the exchange of expert reports, forensic accounting analyses, and business valuations, and have conducted depositions of both Parties. Following arm's-length negotiations and mediation, the Parties have agreed, solely for purposes of this settlement, that the total marital estate is valued at approximately $89.17 million. This agreed valuation represents a negotiated resolution of the dispute between the Husband's position that the total marital estate was valued at $79.29 million and the Wife's position that the total marital estate was valued at $108.81 million. The agreed valuation is not an admission by either Party as to the actual fair market value of any individual asset or the marital estate as a whole, but rather reflects the Parties' compromise in the interest of resolving this matter without the need for trial.
Section 3.2 — Caldwell Meridian Capital LLC.
(a) Entity Description. CMC is a New York limited liability company, Employer Identification Number 26-4831057, with its principal office at 590 Madison Avenue, 30th Floor, New York, New York 10022. CMC was founded on September 15, 2008, during the marriage, and is conceded by both Parties to be marital property.
(b) Business Operations. CMC is a registered investment advisor that manages diversified investment portfolios on behalf of institutional and high-net-worth individual clients. As of the most recent reporting period, CMC had approximately $1.4 billion in assets under management.
(c) Ownership. The Husband holds an eighty-five percent (85%) ownership interest in CMC. The remaining fifteen percent (15%) is held by Derek Fong, who holds a ten percent (10%) interest, and Alicia Drummond, who holds a five percent (5%) interest.
(d) Valuation Dispute. The Husband's expert, Dr. Vivian Osei, CFA, ASA, of Pinnacle Valuation Group LLC, 110 William Street, Suite 2400, New York, New York 10038, valued the enterprise of CMC at $38.2 million, resulting in a value of $32.47 million for the Husband's 85% interest. The Wife's expert, Catherine Ng, CPA, of Ng Barker & Cole LLP, 1330 Avenue of the Americas, Suite 700, New York, New York 10019, valued the enterprise of CMC at $52.7 million, resulting in a value of $44.795 million for the Husband's 85% interest.
(e) Agreed Settlement Valuation. The Parties have agreed, solely for purposes of this settlement, that the value of the Husband's 85% membership interest in CMC is $36.55 million.
(f) Revenue and Compensation. CMC derives revenue from annual management fees of approximately $14.0 million (representing approximately 1.0% of assets under management) and incentive/performance fees, which in the 2021 fiscal year totaled approximately $8.4 million. The Husband's total compensation from CMC in 2021 was approximately $5.9 million, comprised of a salary of $3.8 million and distributions of $2.1 million.
Section 3.3 — Caldwell Realty Holdings LP.
(a) Entity Description. CRH is a New York limited partnership, Employer Identification Number 27-1924683, with its principal office at 590 Madison Avenue, 30th Floor, New York, New York 10022. The general partner of CRH is CRH GP, a New York limited liability company, Employer Identification Number 27-1924690, which is one hundred percent (100%) owned by the Husband.
(b) Portfolio. CRH owns a total of twelve (12) real properties located across Manhattan, Brooklyn, and Westchester County. The total appraised value of the CRH portfolio is $63.8 million. The total outstanding debt secured by the CRH properties, including balances due to Trident National Bank, is $18.7 million. The aggregate net equity in the CRH portfolio is $45.1 million.
(c) Classification of Properties.
(i) Pre-Marital Properties. Three (3) of the twelve properties were acquired by the Husband prior to the Date of Marriage (the "Pre-Marital CRH Properties"). The Pre-Marital CRH Properties have a current appraised value of $28.6 million, with allocated debt of $6.2 million, yielding net equity of $22.4 million. The Pre-Marital CRH Properties are treated as the Husband's Separate Property, subject to the active appreciation adjustment set forth in Section 3.4 below.
(ii) Marital Properties. Nine (9) of the twelve properties were acquired during the marriage with marital funds (the "Marital CRH Properties"). The Marital CRH Properties have a current appraised value of $35.2 million, with allocated debt of $12.5 million, yielding net equity of $22.7 million. The Marital CRH Properties are treated as Marital Property subject to equitable distribution.
(d) Revolving Credit Facility. CRH maintains a revolving credit facility with Trident National Bank, Facility Number TN-CRH-2017-09034, which is included in the aggregate outstanding debt referenced above.
Section 3.4 — Active vs. Passive Appreciation Resolution.
The Wife had contended that the $17.2 million in appreciation on the three Pre-Marital CRH Properties (valued at $11.4 million at the time of the marriage and currently appraised at $28.6 million) constituted active appreciation resulting from the Husband's management efforts during the marriage, and therefore constituted Marital Property subject to equitable distribution. The Husband maintained that the appreciation was passive and attributable to general market conditions, and therefore constituted Separate Property under the terms of the Prenuptial Agreement and DRL § 236(B)(1)(d).
As a compromise, and solely for purposes of this settlement, the Parties agree to treat $5.8 million of the appreciation on the Pre-Marital CRH Properties as Marital Property subject to equitable distribution. The balance of the appreciation, totaling $11.4 million, shall remain the Husband's Separate Property. This resolution reflects a negotiated compromise and is not an admission by either Party as to the characterization of the appreciation.
Section 3.5 — Marital Residence.
(a) Description. The Marital Residence is the cooperative apartment unit located at 14 Gramercy Park South, Apt. PH-A, New York, New York 10003. Title to the shares and proprietary lease for the Marital Residence is held solely in the name of Jonathan R. Caldwell.
(b) Acquisition. The Marital Residence was purchased in March 2010, during the marriage, with marital funds, at a purchase price of $6.9 million.
(c) Current Valuation. The current appraised value of the Marital Residence is $11.4 million. The outstanding mortgage balance on the Marital Residence is $4.1 million (Trident National Bank, Loan Number TN-2010-447821). The net equity in the Marital Residence is therefore $7.3 million.
(d) Prenuptial Agreement Provision. Pursuant to the terms of the Prenuptial Agreement, in the event of dissolution, the titled spouse has the right to elect to retain the marital residence and buy out the non-titled spouse's share. The Prenuptial Agreement specifies a 65/35 split of the net equity in favor of the titled spouse. Accordingly, the Husband's share of the net equity is $4.745 million (65% of $7.3 million) and the Wife's share is $2.555 million (35% of $7.3 million).
(e) Election. The Husband hereby elects to retain the Marital Residence and to buy out the Wife's 35% share of the net equity. The buyout amount of $2.555 million is included within the lump sum cash payment set forth in Section 4.2 of this Agreement.
Section 3.6 — Vacation Property.
The Vacation Property is located at 44 Dune Road, Westhampton Beach, New York 11978. The Vacation Property has a current agreed value of $4.8 million. The Vacation Property was acquired during the marriage with marital funds and is Marital Property. The Vacation Property is not encumbered by any mortgage or lien.
Section 3.7 — Financial Accounts.
(a) Joint Brokerage Account. The Parties maintain a joint brokerage account at Mercer & Hall Securities LLC, Account Number ending in 8812, with a current value of approximately $4.6 million. This account is Marital Property.
(b) Joint Savings Account. The Parties maintain a joint savings account at Trident National Bank, Account Number ending in 3301, with a current balance of approximately $1.2 million. This account is Marital Property.
(c) Husband's Separate Brokerage Account. The Husband maintains a separate brokerage account at Mercer & Hall Securities LLC, Account Number ending in 4477, with a current value of approximately $14.3 million. This account had a pre-marital value of $6.8 million and has appreciated by approximately $7.5 million during the marriage. The entirety of this account, including all appreciation (whether active or passive), is treated as the Husband's Separate Property pursuant to the terms of the Prenuptial Agreement.
Section 3.8 — Retirement Accounts.
(a) Husband's 401(k). The Husband maintains a 401(k) retirement plan through CMC. The marital portion of the Husband's 401(k), reflecting contributions and appreciation during the period from the Date of Marriage to the Date of Separation, is valued at $2.3 million.
(b) Wife's Retirement Accounts. The Wife maintains a Simplified Employee Pension Individual Retirement Account (SEP-IRA) and a 401(k) through Baranova Dermatology & Aesthetics PLLC. The combined value of the Wife's retirement accounts is $1.1 million.
Section 3.9 — Personal Property.
(a) Art Collection. The Parties acquired various works of art during the marriage. The total agreed value of the marital art collection is $1.8 million. The specific pieces and their respective valuations are set forth in Schedule C attached hereto.
(b) 2018 Porsche 911 Turbo S. The Husband owns a 2018 Porsche 911 Turbo S with an agreed value of $175,000. This vehicle is Marital Property.
(c) 2021 Range Rover Autobiography. The Wife has possession of a 2021 Range Rover Autobiography with an agreed value of $145,000. This vehicle is Marital Property.
Section 3.10 — Trusts.
(a) Jonathan R. Caldwell 2010 Irrevocable Trust. The Husband established the Jonathan R. Caldwell 2010 Irrevocable Trust (Tax Identification Number 36-7294851) on October 22, 2010, funded with $5.0 million from the Husband's Separate Property. The current value of the Trust is approximately $9.7 million. The beneficiaries of the Trust are Sophia Caldwell and Alexander Caldwell. Graymoor Trust Company serves as the trustee. This Trust is the Husband's Separate Property and is not subject to equitable distribution.
(b) Caldwell Children's Education Trust. The Parties established the Caldwell Children's Education Trust (Tax Identification Number 81-4620537) on January 15, 2016, funded with $2.0 million from marital funds. The current value of the Trust is approximately $3.1 million. The beneficiaries of the Trust are Sophia Caldwell and Alexander Caldwell. Graymoor Trust Company serves as the trustee. Although the Trust is classified as Marital Property for purposes of this Agreement, the Parties agree to set it aside for the educational benefit of the Children, as further provided in Article VIII.
Section 3.11 — Wife's Separate Property.
(a) Baranova Dermatology & Aesthetics PLLC. The Wife is the sole owner and principal of Baranova Dermatology & Aesthetics PLLC, a New York professional limited liability company, Employer Identification Number 46-3827194, with two locations: 1120 Park Avenue, Suite 3A, New York, New York 10128, and 200 West 57th Street, Suite 607, New York, New York 10019. The PLLC generates annual revenue of approximately $1.9 million. The Parties have agreed upon a value of $2.4 million for the PLLC. The Wife's interest in the PLLC is treated as the Wife's Separate Property and is not subject to equitable distribution, and the Husband makes no claim to any interest in the PLLC.
(b) Pre-Marital Savings. The Wife brought pre-marital savings of approximately $310,000 into the marriage, as disclosed in the Prenuptial Agreement. The Parties acknowledge that these funds were largely expended during the marriage for joint living expenses and are no longer extant.
ARTICLE IV — EQUITABLE DISTRIBUTION
Section 4.1 — Total Distribution to Wife. In full and final settlement of all claims by the Wife to equitable distribution of the marital estate, the Wife shall receive a total equitable distribution valued at $31.2 million, comprised of the components set forth in Sections 4.2 through 4.8 of this Article IV and summarized in Section 4.9.
Section 4.2 — Lump Sum Cash Payment.
(a) Total Amount. The Husband shall pay to the Wife a total lump sum cash payment of $14.5 million, which includes the buyout of the Wife's 35% share of the net equity of the Marital Residence in the amount of $2.555 million, as set forth in Section 3.5(d)–(e) above.
(b) Payment Schedule. The lump sum cash payment shall be made in two (2) installments as follows:
(i) First Installment. The sum of $8.0 million shall be payable within sixty (60) days of the entry of the Judgment of Divorce.
(ii) Second Installment. The sum of $6.5 million shall be payable within twelve (12) months of the entry of the Judgment of Divorce.
(c) Method of Payment. All payments under this Section shall be made by wire transfer to a bank account designated by the Wife in writing, with wire instructions to be provided to the Husband's counsel no fewer than ten (10) business days prior to each payment due date.
(d) Late Payment Interest. In the event that any installment payment is not made when due, interest shall accrue on the unpaid balance at the rate of nine percent (9%) per annum from the due date until the date of actual payment, compounding monthly. The accrual of interest shall not excuse or extend the due date of any payment.
(e) Acceleration. In the event that the Husband fails to make any installment payment within thirty (30) days of the due date, the entire unpaid balance, together with all accrued interest, shall become immediately due and payable, and the Wife shall be entitled to pursue all available remedies at law and in equity, including but not limited to enforcement by motion or proceeding in the Court.
Section 4.3 — Transfer of Vacation Property.
(a) The Husband shall transfer, by bargain and sale deed with covenants against grantor's acts, all of his right, title, and interest in the Vacation Property located at 44 Dune Road, Westhampton Beach, New York 11978, to the Wife. The transfer shall be completed within thirty (30) days of the execution of this Agreement.
(b) The Vacation Property is valued at $4.8 million for purposes of the equitable distribution set forth in this Agreement.
(c) All transfer taxes, recording fees, title insurance premiums, and other closing costs associated with the transfer shall be borne solely by the Husband.
(d) The Husband represents and warrants that the Vacation Property shall be transferred to the Wife free and clear of all liens, mortgages, encumbrances, judgments, and claims of any nature whatsoever. In the event that any lien, encumbrance, or claim is discovered at or prior to closing, the Husband shall cause such lien, encumbrance, or claim to be discharged at his sole expense.
(e) The transfer of the Vacation Property shall qualify as a tax-free transfer incident to divorce under IRC § 1041, and the Wife shall assume the Husband's tax basis in the Vacation Property.
(f) From and after the date of transfer, the Wife shall be solely responsible for all costs of ownership, including but not limited to real property taxes, insurance, maintenance, utilities, and homeowner association dues, if any.
Section 4.4 — Transfer of Joint Brokerage Account.
(a) The joint brokerage account at Mercer & Hall Securities LLC, Account Number ending in 8812, currently valued at approximately $4.6 million, shall be transferred in its entirety to the Wife.
(b) The Husband shall execute all documents and instruments necessary to effectuate the transfer of the account to the Wife's sole name within thirty (30) days of the entry of the Judgment of Divorce. The Parties shall cooperate with Mercer & Hall Securities LLC to accomplish the transfer promptly and efficiently.
(c) The transfer shall qualify as a tax-free transfer incident to divorce under IRC § 1041, and the Wife shall assume the Husband's tax basis in all securities and assets held in the account as of the date of transfer.
Section 4.5 — QDRO Transfer (Retirement Account Equalization).
(a) A Qualified Domestic Relations Order shall be submitted to the Court for entry, directing the plan administrator of the Husband's 401(k) plan to transfer the sum of $600,000 from the Husband's 401(k) account to the Wife as alternate payee.
(b) The QDRO shall comply with all applicable requirements of IRC § 414(p) and the Employee Retirement Income Security Act of 1974, as amended.
(c) Counsel for the Husband shall prepare the initial draft of the QDRO for submission to the Court. Counsel for the Wife shall review and approve the draft QDRO prior to filing. Both Parties shall cooperate in obtaining the approval of the plan administrator.
(d) The Wife shall be solely responsible for any income tax consequences, penalties, or other liabilities arising from any distribution from her account following the QDRO transfer. The transfer itself shall not be a taxable event.
(e) The Wife may elect to roll over the transferred funds into an Individual Retirement Account or other qualified retirement plan in accordance with applicable law.
Section 4.6 — Art Collection Transfer.
(a) Specified pieces from the marital art collection, as identified on Schedule C attached hereto and incorporated herein by reference, with a total agreed value of $850,000, shall be transferred to the Wife.
(b) The transfer of the art pieces shall be completed within thirty (30) days of the entry of the Judgment of Divorce. The Husband shall make the art pieces available for pickup at a mutually agreed location and shall cooperate in arranging professional packing, crating, and transport. The cost of professional transport and insurance during transit shall be borne equally by the Parties.
(c) The Husband retains the balance of the marital art collection, with a total agreed value of $950,000.
Section 4.7 — Vehicle Transfer.
(a) The 2021 Range Rover Autobiography, with an agreed value of $145,000, shall be transferred to the Wife.
(b) The Husband shall execute all necessary title transfer documents, including any DMV forms required by the State of New York, within fifteen (15) days of the entry of the Judgment of Divorce.
(c) From and after the date of transfer, the Wife shall assume all obligations with respect to the vehicle, including but not limited to insurance, registration, inspection, and maintenance.
Section 4.8 — Additional Cash.
The Husband shall pay to the Wife an additional cash sum of $3.15 million, payable concurrently with the first lump sum installment due under Section 4.2(b)(i) of this Agreement. This additional cash payment covers miscellaneous marital personal property, furnishings, household items, and other agreed items not otherwise specifically addressed in this Agreement. Upon receipt of this payment, the Wife shall have no further claim to any marital personal property, furnishings, or household items in the Husband's possession.
Section 4.9 — Summary of Distribution to Wife.
The total equitable distribution to the Wife under this Agreement is summarized as follows:
Note: The Marital Residence buyout of $2.555 million is a component of the $14.5 million lump sum cash payment and is not separately additive. The Wife also retains her own retirement accounts (SEP-IRA and 401(k)) valued at $1.1 million. The total distribution figure of $31.2 million represents the Parties' agreed global resolution inclusive of Wife's retained Separate Property.
Section 4.10 — Assets Retained by Husband.
Subject to the payments and transfers set forth in Sections 4.2 through 4.8, the Husband shall retain the following assets:
(a) All membership interests in Caldwell Meridian Capital LLC (85% interest), with a settlement-agreed value of $36.55 million;
(b) All limited partnership interests in Caldwell Realty Holdings LP and all membership interests in Caldwell Realty GP LLC, including all twelve (12) real properties held by CRH (three Pre-Marital CRH Properties and nine Marital CRH Properties);
(c) The Marital Residence at 14 Gramercy Park South, Apt. PH-A, New York, New York 10003, subject to the existing mortgage with Trident National Bank (Loan Number TN-2010-447821, outstanding balance $4.1 million);
(d) The separate brokerage account at Mercer & Hall Securities LLC, Account Number ending in 4477 (current value $14.3 million), which is the Husband's Separate Property;
(e) The 2018 Porsche 911 Turbo S (agreed value $175,000);
(f) The balance of the marital art collection not transferred to the Wife (agreed value $950,000);
(g) The joint savings account at Trident National Bank, Account Number ending in 3301 (current balance $1.2 million);
(h) The balance of the Husband's 401(k) retirement plan after the QDRO transfer (marital portion: $2.3 million less $600,000 QDRO transfer = $1.7 million); and
(i) All other assets not specifically allocated to the Wife under this Agreement.
Section 4.11 — Assets Retained by Wife.
The Wife shall retain the following assets, free and clear of any claim by the Husband:
(a) All interests in Baranova Dermatology & Aesthetics PLLC (agreed value $2.4 million);
(b) The Wife's retirement accounts, including her SEP-IRA and 401(k), with a combined value of $1.1 million;
(c) All personal effects, clothing, jewelry, and other items of personal property currently in the Wife's possession at 320 West 76th Street, Apt. 12B, New York, New York 10023; and
(d) All assets transferred to the Wife pursuant to Sections 4.2 through 4.8 of this Agreement, upon completion of such transfers.
ARTICLE V — SPOUSAL MAINTENANCE
Section 5.1 — Amount and Duration. The Husband shall pay to the Wife spousal maintenance in the amount of Fifteen Thousand Dollars ($15,000) per month for a period of forty-eight (48) months, commencing on the first day of the first full calendar month following the entry of the Judgment of Divorce. The total spousal maintenance obligation of the Husband under this Agreement is $720,000 ($15,000 × 48 months). This amount is consistent with the cap set forth in the Prenuptial Agreement, which provides that for marriages lasting ten (10) or more years, spousal maintenance shall not exceed $15,000 per month for a period not to exceed five (5) years. The Parties have agreed to a four (4)-year term as part of this global settlement.
Section 5.2 — Method of Payment. Spousal maintenance payments shall be due on the first day of each calendar month during the maintenance period. Payments shall be made by electronic funds transfer to a bank account designated by the Wife in writing. The Wife shall provide wire transfer or direct deposit instructions to the Husband in advance of the first payment. In the event that a payment due date falls on a Saturday, Sunday, or federal holiday, the payment shall be due on the immediately preceding business day.
Section 5.3 — Termination Events. The Husband's obligation to pay spousal maintenance shall terminate upon the earliest occurrence of any of the following events:
(a) The expiration of the forty-eight (48)-month term;
(b) The Wife's remarriage;
(c) The Wife's cohabitation with an unrelated adult in a relationship akin to marriage for a continuous period of one hundred twenty (120) days or more, as determined by the Court or by arbitration pursuant to Article XV;
(d) The death of either Party.
Upon the occurrence of any termination event, the Husband's obligation to make any further maintenance payments shall cease immediately, and no further payments shall be due or owing. The Husband shall not be entitled to a refund or credit of any maintenance payments made prior to the termination event.
Section 5.4 — Tax Treatment. The Parties acknowledge that under the Tax Cuts and Jobs Act of 2017, as codified in IRC § 71 (as amended) and IRC § 215 (as repealed for instruments executed after December 31, 2018), spousal maintenance payments made pursuant to a divorce or separation instrument executed after December 31, 2018, are not deductible by the payor and are not includable in the gross income of the payee. This Agreement having been executed on May 12, 2023, the spousal maintenance payments set forth herein shall be treated accordingly. The Parties acknowledge that this tax treatment has been taken into account in the negotiation and determination of the overall settlement.
Section 5.5 — Non-Modifiability. The spousal maintenance provisions of this Agreement, including without limitation the amount, duration, and termination provisions, shall not be subject to modification by either Party or by the Court, whether for changes in financial circumstances or for any other reason, except as expressly provided in Section 5.3. The Parties expressly waive any right to seek modification of the spousal maintenance provisions set forth herein, and this waiver is made knowingly, voluntarily, and with the advice of counsel.
ARTICLE VI — CHILD CUSTODY AND PARENTING
Section 6.1 — Legal Custody. The Parties shall share joint legal custody of the Children, Sophia Caldwell (born February 12, 2012) and Alexander Caldwell (born August 29, 2014). Both parents shall have equal rights and responsibilities with respect to all major decisions affecting the health, education, religious upbringing, welfare, and extracurricular activities of the Children. The Parties shall consult with each other in good faith and shall endeavor to reach mutually acceptable decisions on all major matters affecting the Children before any such decision is implemented. Neither Party shall make a unilateral decision on any major issue without first consulting the other Party and making a good-faith effort to reach agreement. In the event the Parties are unable to reach agreement on a major decision after good-faith consultation, either Party may seek the intervention of a mediator in accordance with Article XV, or if mediation is unsuccessful, may apply to the Court for a determination.
Section 6.2 — Physical/Residential Custody.
(a) Primary Residence. The Wife shall have primary residential custody of the Children. The Children's primary residence shall be with the Wife at her current address at 320 West 76th Street, Apt. 12B, New York, New York 10023, or at such other residence as the Wife may establish, subject to the relocation provisions set forth below.
(b) Relocation. In the event the Wife seeks to relocate the Children's primary residence outside the five boroughs of New York City or Westchester County, the Wife shall provide the Husband with not less than ninety (90) days' prior written notice. The Parties shall engage in good-faith discussions regarding any proposed relocation. In the event the Parties are unable to agree on a proposed relocation, either Party may seek a determination from the Court in accordance with applicable law. The Husband acknowledges that relocation within the five boroughs of New York City or within Westchester County shall not require his prior consent, provided that the Wife gives the Husband reasonable advance written notice of any such relocation.
Section 6.3 — Parenting Time — Husband. The Husband shall have parenting time with the Children as follows:
(a) Alternate Weekends. Every other weekend from Friday at 5:00 PM to Sunday at 7:00 PM, commencing on the first Friday following the entry of the Judgment of Divorce. The Husband shall be responsible for picking up the Children from the Wife's residence or their school on Friday and returning them to the Wife's residence on Sunday.
(b) Weeknight Dinner. One weeknight dinner per week on a day to be mutually agreed upon by the Parties. If the Parties are unable to agree, the default weeknight shall be Wednesday from 5:00 PM to 8:00 PM. The Husband shall pick up the Children from the Wife's residence or their school and return them to the Wife's residence at the conclusion of the visit.
(c) Holidays. The Parties shall alternate holidays in accordance with the detailed Holiday and Vacation Parenting Schedule set forth in Schedule D attached hereto and incorporated herein by reference.
(d) Summer Parenting Time. The Husband shall have four (4) consecutive weeks of parenting time during the Children's summer recess from school. The Husband shall provide the Wife with at least sixty (60) days' prior written notice of the specific dates selected for summer parenting time. In the event the Husband's selected dates conflict with a pre-planned vacation or activity of which the Wife has previously notified the Husband, the Parties shall endeavor to resolve the conflict by mutual agreement.
(e) Additional Time. The Husband shall have such additional parenting time as the Parties may mutually agree upon from time to time. The Parties shall be flexible and accommodating with respect to requests for additional time, keeping the best interests of the Children as their paramount concern.
Section 6.4 — School. The Children shall continue to attend Lockwood Academy, located at 251 East 84th Street, New York, New York 10028. The annual tuition for Sophia Caldwell is currently $58,500, and the annual tuition for Alexander Caldwell is currently $54,200. Any change in the Children's school enrollment shall be a major decision requiring the mutual agreement of both Parties pursuant to Section 6.1.
Section 6.5 — Communication and Cooperation.
(a) Communication with Children. Each Party shall ensure that the Children have reasonable and regular telephone, video call, and electronic communication with the other Party when the Children are in his or her care. Neither Party shall monitor, intercept, or restrict the Children's communications with the other Party except as reasonably necessary to protect the health and safety of the Children.
(b) Emergency Notification. Each Party shall notify the other promptly, and in no event later than two (2) hours, of any emergency involving the Children, including but not limited to hospitalization, serious illness, injury, or involvement with law enforcement.
(c) Right of First Refusal. If either Party is unable to care for the Children during his or her scheduled parenting time for a period exceeding four (4) consecutive hours (excluding school hours and regular after-school activities), that Party shall offer the other Party the opportunity to care for the Children before engaging a babysitter, nanny, or other caretaker (other than a grandparent or the Parties' existing nanny).
(d) Travel. Each Party shall notify the other in advance of any domestic travel with the Children of more than two (2) days' duration, providing the itinerary, travel dates, and contact information. For international travel, each Party shall provide the other with at least thirty (30) days' prior written notice, together with the itinerary, travel dates, destination, and contact information. Neither Party shall travel internationally with the Children without the prior written consent of the other Party, which consent shall not be unreasonably withheld.
(e) General Cooperation. The Parties shall at all times cooperate with each other to promote the best interests of the Children and to maintain a respectful and constructive co-parenting relationship. Neither Party shall disparage or speak negatively about the other Party in the presence of the Children.
ARTICLE VII — CHILD SUPPORT
Section 7.1 — Basic Child Support. The Husband shall pay to the Wife child support in the amount of $8,500 per month per child, for a total of $17,000 per month for both Children combined. Payments shall commence on the first day of the first full calendar month following the entry of the Judgment of Divorce. This child support obligation supersedes and replaces the temporary (pendente lite) child support order of $14,000 per month entered by the Court on September 30, 2022. The Parties acknowledge that the child support amount set forth herein has been calculated by reference to the factors set forth in DRL § 240(1-b) and reflects the Parties' agreement as to the appropriate level of support for the Children in light of the Husband's income, the Wife's income, and the Children's needs.
Section 7.2 — Duration. The Husband's obligation to pay child support for each child shall continue until the earlier of: (a) the child's attainment of the age of eighteen (18); or (b) the child's graduation from high school, whichever occurs later, unless the child is sooner emancipated by marriage, entry into the military, or other legally recognized event constituting emancipation under New York law. In the event that a child becomes emancipated, the Husband's child support obligation for that child shall terminate effective as of the date of emancipation, and the monthly payment shall be reduced to $8,500 per month for the remaining child.
Section 7.3 — Additional Expenses. In addition to the basic child support set forth in Section 7.1, the Parties shall share the following additional expenses for the Children in the proportion of seventy-five percent (75%) by the Husband and twenty-five percent (25%) by the Wife:
(a) Private school tuition at Lockwood Academy (or such other school as the Parties may mutually agree upon), including but not limited to tuition, fees, books, supplies, uniforms, and required technology;
(b) Extracurricular activities, including but not limited to sports programs, music and arts lessons, tutoring, test preparation, enrichment programs, and summer camps;
(c) Uninsured and unreimbursed medical, dental, optical, orthodontic, and mental health expenses for the Children, including but not limited to co-pays, deductibles, prescription medications, therapy, and any medically necessary treatments not covered by insurance.
The Party who incurs or pays an additional expense shall submit documentation of the expense to the other Party within thirty (30) days of payment, and the other Party shall reimburse his or her proportionate share within thirty (30) days of receipt of documentation. Expenses exceeding $500 per item shall be discussed and agreed upon by both Parties in advance, except in the case of medical emergencies.
Section 7.4 — Health Insurance. The Husband shall maintain health insurance coverage for the Children through his employer-sponsored health plan or, if employer-sponsored coverage is not available, through a private health plan providing substantially equivalent coverage, at the Husband's sole cost and expense, for so long as the Husband is obligated to pay child support under this Agreement. The Husband shall promptly provide the Wife with evidence of coverage, insurance cards, and all information necessary for the Wife to access benefits on behalf of the Children. In the event that the Husband's health plan does not cover a particular treatment or service, the cost of such treatment or service shall be treated as an unreimbursed medical expense and shared pursuant to Section 7.3(c).