Upon the foregoing cited papers, in this matrimonial action, the Decision/Order on this motion is as follows:This is a motion by the plaintiff (hereinafter "wife") for an order granting the following pendente lite relief: (1) Exclusive use and occupancy of the marital residence; (2) Custody of the infant issue of the marriage; (3) Maintenance; (4) Child support; (5) A determination on how the rental income collected by both parties are accounted for; (6) An order directing the defendant to maintain health insurance benefits for plaintiff and the children; (7) An order for $7,500 in counsel fees with leave to make further application for same. [*2]

The defendant (hereinafter "husband") opposes portions of the motion.

The parties were married on September 2, 1996. There are three children of the marriage: ages 13, 11 and 7. The children live with the wife. The wife is 46 years old. She lists her occupation as teacher on her Statement of Net Worth (NWS). The wife claims she earned $11,117 for the year 2009 by working three separate part time jobs. The husband is 53 years old and is employed as a court officer. The husband earned approximately $107,953 for 2009 plus benefits. The husband also has a pension, deferred compensation, and an IRA. Together, the parties own two pieces of realty, to wit: the former marital residence located at 2 Seeley Street (Seeley Street) where the wife resides with the children, and 292 18th Street (18th Street) where the husband resides. The properties have a combined mortgage in excess of $900,000 and generate a combined monthly rental income in excess of $4,500 ^[FN1] per month.

The husband does not oppose the portions of wife's motion which seeks exclusive use and occupancy of the former marital residence at Seeley Street and the request to continue coverage of the wife and the children under his medical insurance. Therefore the Court will not address these issues but deems these requests granted on consent. The husband also does not oppose the children continuing to physically reside with the mother, but maintains that an award of temporary custody is not necessary. This decision and order will address temporary custody along with the remaining issues.

The wife claims that she has been largely, a stay-at-home mother since the parties' children were born. The wife states that the parties have been completely separated for several years when the husband moved from the Seeley Street property to the 18th Street property.

The wife also states that initially, the husband collected all of the rent from both properties, paid all of the bills for both properties and provided her with a credit card which he paid for in order to purchase groceries and other necessities for the children. In addition, the wife indicates that the husband paid for all of the children's after school activities. However, after failing to resolve their issues through mediation, the wife alleges that the husband stopped paying support or any of the bills including the mortgage, taxes, insurance, and utilities for the Seeley Street property.

The wife indicates that the rent she received for the Seeley Street property is $1,500 per month which she has recently begun collecting. The wife alleges that the combined rents from 18th Street property total $3,500.

The wife calculates the combined rental income from the three apartments to be $60,000 per year. The wife asks the Court to allocate 50% of the rental income to her and 50% to the husband, thus raising their income by $30,000 respectively. The wife further argues that these sums should be used in the Court's calculation of the mandatory temporary maintenance award.

The husband states that the parties initially began living separately shortly after [*3]the birth of their third child. The husband indicates that he and the children remained in the main apartment at Seeley Street while the wife moved to the upstairs apartment. After approximately eighteen (18) months, the husband moved upstairs and the wife moved into the main apartment with the children. This situation existed for approximately one year.

The husband states that the parties refinanced the Seeley Street residence and purchased the 18th Street property, which is a three family property. Two of the apartments are rented and the husband occupies the basement apartment. The husband states that the purchase of this property was for investment, to put stability in the parties' and their children's lives, and to allow both parties to be close to the children. The husband states that he sees his children often and as previously stated, does not object to them residing with the wife but sees no need for there to be an order of temporary custody.

The husband states that for the past three (3) years, the $1,500 generated from the Seeley Street residence was deposited into a checking account along with $1,800 from his pay check. This money was used to pay the property's monthly mortgage of $3,300. The husband indicates that he also paid the expenses on the Seeley Street property of $400 - $500 per month, along with the wife's charge card used for living expenses of approximately $800 - $900 per month. The husband maintains that the wife earns approximately $200 per week which is the source of the $6,900 in savings shown on the wife's financial affidavit. The husband argues that the wife has no ability to deal with writing checks and paying bills. The husband further argues that when he told the wife that he would pay the $3,300 mortgage for Seeley Street and that she could use the $1,500 from the rents plus her salary to live on, she panicked and started this action.

The husband states that he receives $2,580 (as previously stated, the husband subsequently indicated he collects $2,588) per month in rental income for the 18th Street property where he lives in the basement apartment. He indicates that he uses the rents to pay the mortgage on the property. The mortgage is listed at $3,250 per month. The husband lists his bi-weekly net income as $2,069 and his total net annual income at $53,742.

The husband states that the monthly rental income from both properties is insufficient to fully pay the mortgage and taxes for the respective properties. The husband acknowledges that both properties, his pension, and his annuity ^[FN2] are marital property. The husband argues that for the wife to seek 50% of the rental income from both properties without seeking to pay half the expenses is naive and childish.

Regarding counsel fees, the husband argues that the wife has more money in the bank ($6,900) than he ($6,000). The husband argues that the wife's expenses as listed in her NWS are overstated. The husband also maintains that the wife gets the [*4][*5]$1,500 rental income from the Seeley Street property, the benefit of the $3,340 amount paid by him for the Seeley Street mortgage, and her $900 from employment for a total of $5,740.

The husband believes that if he gives the wife the $1,500 in rental income plus $3,340 for the mortgage, the mortgage will never get paid. The husband asks this court to continue the alleged practice of allowing the wife to keep the $1,500, the husband to continue paying the mortgage of $3,340 and the mortgage on 18th Street. The husband urges that this proposal will allow for the preservation of the two real properties during the pendency of this action. Thus the husband urges the denial of the wife's motion.

In reply, the wife argues that she has no problem paying bills as long as she is provided with the appropriate child support. The wife asserts that after mediation failed, the husband stopped paying the bills for her and the children.

The wife further maintains that the husband understates his take home income. The wife points out that the husband voluntarily directs $575.26 per pay check into his deferred compensation account and that he has voluntarily not worked over-time in 2010 because of the divorce proceedings. The wife urges the court to look at the husband's past few years of W-2's, which she alleges are in excess of $90,000 per year.

Effective October 12, 2010, the New York State legislature in Domestic Relations Law Section 236 B (5-a) changed the way in which temporary maintenance requests are handled by the court. As indicated by the Honorable Jeffery S. Sunshine in Scott M. v. Ilona M., 915 NYS2d 834, the standard in determining temporary maintenance is no longer to tide over the "more" needy spouse. The court must now employ a formulaic approach as set forth in the statute to determine the presumptive amount of temporary spousal support.

The only W-2's submitted were those attached to the wife's moving papers for herself and the husband's 2009 tax year. The wife's three W-2's show a combined gross income of $11,660 with medicare tax of $70.04; social security tax of $299.46; and New York City tax of $1.04. The husband's W-2 shows gross income of $107,953; medicare tax of $1,565.62; social security tax of $6,621.60; and city tax of $3,212.23.

The applicable deductions for the wife total $370.54 and $11,399.45 for the husband. Thus the wife's adjusted income for computing temporary maintenance is $11,289.46 and the husband's is $96,553.55.

In determining the parties' income, the rental income was not added to either party's income as any investment income must first be reduced by the amount expended in connection with the investment, and then any balance is added into the formula. The credible evidence indicates that the rental income on the Seeley Street property totals $18,000 ($1,500 x 12) per year while the mortgage is $40,152 ($3,346 x 12) per year, leaving a short fall of $22,152. The rental income for the 18th Street property totals $31,056 ($2,588 ^[FN3] x 12) per year while the mortgage is either $35,628 [*6]($2,969 x 12) or $39,000 ($3,250 x 12)^[FN4], thereby leaving a short fall of $4,572 or $7,944. Because the rental income does not cover the total cost of the parties' investment, zero (0) was added to both incomes for this factor. After the above adjustments, the husband is deemed the "payor" spouse for the purpose of calculating temporary maintenance.

Maintenance Calculations

To determine the amount of temporary maintenance to which the payee spouse is entitled based on the first $500,000 of the payor spouse's income, the court has conducted the following statutory calculations:

Calculation A: 30% [$28,966.16] of Payor's income [$96,553.85] - 20% (2,257.89) of Payee' income [$11,289.46] = $26,708.26

Calculation B: 40% [43,137.32] of combined income - Payee's income ($11,289.46) = $31,847.86

The guideline amount is the lesser of calculation A and calculation B or zero if

calculation B is less than or equal to zero.

Calculation A:$26,708.26

Calculation B:$31,847.86

Guideline Amount:$26,708.26If the guideline amount reduces the Payor's income below the self support reserve (in 2010 it is $14,620) then the award is the Payor's income minus the self support reserve. If the low income award equals zero, there is no adjustment for low income.

Payor's income:	$96,553.85
Guideline Amount:	-26708.26
$69,848.59

The guideline amount does not reduce the Payor's income below the self support reserve. Accordingly, there is no low income adjustment herein.

Child Support Calculations

For child support purposes, the father's unadjusted income is $107,953 less $1,565.62 (medicare taxes), less $6,621.60 (social security taxes), less $3,212.23 (New York City taxes), less $26,708.26 (presumptive maintenance award). This results in an AGI of $69,845.29. The wife's unadjusted income is $11,660 less $70.04 (medicare taxes), $299.46 (social security taxes), less $1.04 (New York City taxes) resulting in an AGI of $11,289.46. The combined income totals $81,134.75. In accordance with the CSSA, this amount is multiplied by 29% (for three children) giving the father a pro rata share of 86.09% or $779.04 bi-weekly. The mother's pro rata share is 13.91% or $125.00 bi-weekly. The same percentages would apply for any unreimbursed medical expenses or add ons. The Court notes that there has been no claim for any add ons.

In accordance with DRL 236 § B(5-a)(e)(1) "[t]he court shall order the presumptive award of temporary maintenance in accordance with paragraphs c and d [*7]of this subdivision, unless the court finds that the presumptive award is unjust or inappropriate and adjusts the presumptive award of temporary maintenance accordingly based upon consideration of the following factors:"

(a) the standard of living of the parties established during the marriage;

(b) the age and health of the parties;

(c) the earning capacity of the parties;

(d) the need of one party to incur education or training expenses;

(e) the wasteful dissipation of marital property;

(f) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;

(g) the existence and duration of a pre-marital joint household or a pre-divorce separate household;

(h) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the Social Services Law;

(I) the availability and cost of medical insurance for the parties;

(j) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;

(k) the inability of one party to obtain meaningful employment due to age or absence from the workforce;

(l) the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;

(m) the tax consequences to each party;

(n) marital property subject to distribution pursuant to subdivision five of this part;

(o) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;

(p) the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and

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

In determining whether the presumptive amount of temporary maintenance of $26,708.26 ($2,225.69 per month or $1,027.24 bi-weekly) would be unjust and inappropriate: (1) the court must consider the existence and duration of the pre-divorce separate households; and (2) the child support obligations of both parties cannot be made without looking at the entire financial situation of the parties.

If the presumptive amounts of maintenance and child support are awarded, the following will be the result, taking into account Federal taxes: Net Income:

	Wife	Husband
Gross Income:	$11,660	$107,953
FICA/Medicare:	-369.5	-8186.92
[*8]NYC Taxes:	-1.04	-3212.23
Federal Taxes:	0	-8590.06
Maintenance:	26708.26	-26708.26
Child Support:	20255.13	-20255.13
$58,252.85	$41,000.40

The wife's NWS lists her monthly expenses as $6,662.15 inclusive of the $3,346.15 mortgage for the Seeley Street apartment. The Court notes that the wife alleges that the husband has failed to pay carrying charges for the property since the failed mediation, but does not include allegations or evidence of any delinquencies. In fact both the wife's and husband's papers only reference a shut off notice of Con Edison and they differ as to why this occurred. The husband lists his monthly expenses as $8,222.52. This amount also includes the Seeley Street mortgage. If the husband is no longer responsible for the Seeley Street mortgage, his monthly expenses total $4,876.56. The husband states that his net take home pay bi-weekly pay is $2,067.00 for a total of $8,222.00. Based upon these allegations, the parties were barely making due.

After giving fair consideration to the parties' arguments and the application of the new law, the court does not find the presumptive amount of $26,708.26 to be unjust or inappropriate.

Interim Counsel Fees

The wife requests an award of interim counsel fees in the amount of $7,500. The new legislation also changes the methodology for the ordering of counsel fees pendente lite. DRL § 237 has been amended to provide that: "[t]here shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding. Applications for the award of fees and expenses may be made at any time or times prior to final judgment. Both parties to the action or proceeding and their respective attorneys may make such application. Such application shall include the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses. Any applications for fees and expenses may be maintained by the attorney for either spouse in his own name in the same proceeding. Payment of any retainer fees to the attorney for the petitioning party shall not preclude any awards of fees and expenses to an applicant which would otherwise be allowed under this section.

In the instant case, the husband earns $107,953.00 and the wife earns $11,660.00. The husband is the monied spouse. In accordance with the new statutory scheme there is a rebuttable presumption that counsel fees shall be awarded to the less monied spouse, the wife. However, based upon the temporary maintenance and child support awards, the husband can no longer be considered the "monied spouse". As can be seen from the previous calculations and discussion, there is a substantial shift in actual financial resources. While the award of temporary maintenance may have future tax implications to the parties, that issue is not presently before the court, and the court must render a determination on the facts presently before it. [*9]

The wife's retainer agreement is for a retainer of $7,500 and her attorney's hourly fee is $350. This the third retainer and the $7,500 has not been paid. The husband's attorney indicates that his retainer was $3,000. A copy of the retainer agreement was not attached to the Affidavit and Affirmation In Opposition.

The re-allocation of financial resources articulated herein shifts the burden from the husband being considered the monied spouse and as such, rebuts the presumption. There is no doubt that the husband earns more than the wife, and there is a disparity in gross income, but under the financial shift as a result of the mandatory CSSA and maintenance guidelines, the wife will have more available resources for her and the children than the husband.

Prior to the recent legislation, it was well settled that under DRL § 237, counsel fees were a matter within the sound discretion of the trial court, the issue being controlled by the equities and circumstances of each particular case (Grant v Grant, 71 AD3d 634). "In determining whether to award such a fee, the court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions (DeCabrera v Cabrera-Rosete,70 NY2d 879). Further, "[a]n appropriate award of attorney's fees should take into account the parties' ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances" (DiBlasi v DiBlasi, 48 AD3d 403).

In the instant case, the retainers charged by the parties' counsel appear to be reasonable. However, this is not a case where the assets and income are without limits. While the husband earns the most money, he will now be required to pay a significant amount of that to the wife. The NWS's show that the monies in the parties' bank accounts is approximately the same, i.e. $7,395 for the wife and $7,000 for the husband. The only other income is the rental income which is insufficient to cover the mortgage on the two proprieties. While the husband argues that the wife is incapable of paying bills (while stating he does not want to "baby sit" her), the wife will now have to manage her household with the awards herein. The parties will now be similarly situated. As such, each will have to be responsible for their counsel fees.

Custody

As the facts are undisputed, no hearing is required. Since the husband does not object to the children physically residing with the wife, the wife is awarded pendente lite physical custody with liberal parenting time to the husband; the wife and husband are awarded pendente lite joint legal custody.

Accordingly, for the reasons stated herein, the husband is ordered to pay pendente lite maintenance in the amount of $26,708.26 per year or $1,027.24 bi-weekly. He is further directed to pay pendente lite child support in the amount of $20,255.13 per year or $779.04 bi-weekly. The parties shall share the cost of unreimbursed medical expenses at a ratio of 86.09% for the husband and 13.91% for the wife. The first payments are to be made on April 1, 2011and shall continue on every other Friday following the husband's pay period (i.e., The husband's next pay date is March 31, 2011 and the first payment due is on April 1, 2011. The husband's next pay date is on April 13. Therefore his support payments would be due on April 15, etc.). All awards are retroactive to the date of the first application (see Dooley v Dooley, 128 AD2d 669).

The defendant-husband shall receive a credit retroactive to the date of the application for any voluntary payments made. Arrears, if any, shall be paid at the rate of $100 bi-weekly until [*10]fully paid. The plaintiff-wife's application for counsel fees are denied with leave to renew at trial, if the facts so warrant.

The rent for the respective properties, to wit: Seeley Street and 18th Street shall be collected by the wife and husband for each of the residences in which he or she resides and shall be used to pay for the mortgage and any carrying charges for that property. The parties shall exchange on a quarterly basis during the pendency of this matter a full accounting for all monies collected and expended during the quarter.

The parties are awarded pendente lite: joint legal custody of the minor children of the marriage with physical custody to the plaintiff- wife. The defendant-husband shall have liberal parenting time with the children.

Any other issues raised and not addressed by this Decision and Order or deemed granted on consent of the parties are deemed denied.

This constitutes the decision and order of the court.

Dated: March 18, 2011E N T E R :

HON. DELORES J. THOMAS, J.S.C.