| Al E. v Joann E. |
| 2017 NY Slip Op 50543(U) [55 Misc 3d 1212(A)] |
| Decided on May 1, 2017 |
| Supreme Court, Kings County |
| Sunshine, J. |
| Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. |
| As corrected in part through May 3, 2017; it will not be published in the printed Official Reports. |
Al E., Plaintiff,
against Joann E., Defendant. |
The Court is called upon to determine whether it is appropriate to award pendente [*2]lite maintenance, child support and counsel fees to the defendant. In considering defendant's pendente lite maintenance application, the Court must consider whether, based upon the factors in DRL 236(B)(5-a), an award of temporary support above the maintenance guideline statutory cap of $178,000 is appropriate given the lifestyle established during the marriage and the expenses detailed by defendant. The Court must also distinguish that calculating an award of maintenance over the cap of $178,000 is not an automatic formula but is based upon a set of factors enunciated in DRL 236(B)(5-1)(h)(1) and is not calculated as child support under the Child Support Standards Act and Cassano v. Cassano (85 NY2d 649, 628 NYS2d 10 [1995]). The Court must also address plaintiff's theory that an award of child support would not be appropriate, where the parties share 50-50% parenting time notwithstanding plaintiff reported income of $305,922 and defendant reported income of $19,461 on the parties' joint 2015 tax returns and sets forth the proposition that defendant will not have an incentive to settle if she is awarded child support. Additionally, the Court will address plaintiff's contention that the defendant will not have "skin in the game" if the Court grants defendant's entire application for pendent counsel fees.
The plaintiff, an attorney, is forty-nine (49) years of age and the defendant, a real estate agent, is fifty-four (54) years of age. The parties were married on January 19, 1999 in a civil ceremony. They have two (2) male children: D. E., who is seventeen (17) years of age; and M.E., who is fifteen (15) years of age.
The plaintiff commenced this action by filing a summons with notice on April 5, 2016. Defendant filed a notice of appearance on April 26, 2016. A request for judicial intervention was filed on August 2, 2016. The plaintiff filed a verified complaint on May 20, 2016 and the defendant filed a verified answer on July 7, 2016. The matter was scheduled for a preliminary conference on September 22, 2016 but the parties stipulated, on consent, to adjourn that appearance to October 13, 2016.
The parties appeared on October 13, 2016 and entered into a consent scheduling order regarding defendant's order to show cause (motion sequence #1) and plaintiff's cross-motion (motion sequence #2). Based upon the representations of the parties as to the outstanding issues of custody and parenting time the Court, on consent, appointed an attorney to represent the parties' two (2) minor children by written order dated October 26, 2016.
On November 3, 2016, the defendant-wife moved by order to show cause (motion sequence #1) for the following relief: "a) directing that pendente lite Defendant shall have exclusive use and occupancy of the parties' residence located at [omitted] Vanderbilt Avenue, Brooklyn, New York 11205; b) directing that pendente lite Plaintiff shall have exclusive use and occupancy of the parties' residence located at [omitted] Quincy Street, Apartments 1 & 2, Brooklyn, New York 11238; c) establishing, as and for an interim [*3]parenting schedule, that each party shall have parenting time with the Children in alternating one week blocks commencing at 6:00 p.m. on Thursdays, and that the parties shall equally divide holidays and the Children's school vacations; d) directing Plaintiff to pay $6,166 per month in pendente lite spousal maintenance to Defendant retroactive to April 26, 2016; e) directing Plaintiff to pay an appropriate amount of pendente lite child support to Defendant retroactive to April 26, 2016; f) directing that pendente lite Plaintiff shall pay the mortgage and home equity loan related to the parties' residence at [omitted] Vanderbilt Avenue, Brooklyn, New York 11205' g) directing that pendente lite Plaintiff shall continue to collect and deposit into his separately titled bank account the rental income from the parties' real estate located at [omitted] Quincy Street, Brooklyn, New York 11205 and [omitted] Halsey Street, Brooklyn, New York 11216, subject to reallocation, and pay the carrying charges on such buildings; h) directing Plaintiff to pay $66,747 for counsel fees incurred by Defendant in connection with this action and prospective counsel fees to be incurred in connection with this motion, without prejudice to Defendant's or her counsel's right to apply for further fees during the pendency of this action; I) directing Plaintiff to pay Defendant's counsel $25,000 toward Defendant's prospective counsel fees; and j) granting to Defendant such other relief as is just and proper..."
Plaintiff filed an affidavit in opposition and in further support and an attorney's affirmation on November 15, 2016.[FN1] Defendant filed a reply affidavit and a memorandum of law in support on November 21, 2016.
On November 3, 2016, plaintiff-husband also moved by order to show cause [motion sequence #2] for the following relief: "a) Granting temporary custody of the parties' two minor children [redacted] to the Plaintiff; 2) Maintaining the parties' current financial status quo, to wit: i) requiring the parties to continue paying the mortgage on their properties from the respective rents collected; 3) Requiring the defendant to rent out for a market rate at least one unit at the property located at [omitted] Vanderbilt Avenue; 4) Appoint a certified appraiser to appraise the parties' real estate located at: i) [omitted] Vanderbilt Avenue; ii) [omitted] Halsey Street; and, iii) [omitted] Quincy Street; 5) For such other relief as the Court may deem just and proper."
Defendant filed an affidavit in opposition to motion sequence #2 on November 15, 2016. Plaintiff's affidavit in opposition to motion sequence #1 filed on November 15, 2016, includes his reply to motion sequence #2.
On November 21, 2016, the Court held a preliminary conference and the parties entered into a consent stipulation resolving the issues of custody and parenting time, [*4]appraisals and exclusive use and occupancy.[FN2] The parties also stipulated on consent to appointment of a neutral appraiser to value the parties' three (3) Brooklyn properties [FN3] and a neutral appraiser for the plaintiff's law practice [FN4] . The payment of the neutral appraisers is being paid 100% by plaintiff subject to reallocation. The Court heard oral argument on the remaining relief requested by the parties in their cross-applications on November 21, 2016. The Court also issued a written order dated November 21, 2016 that pending the Court's written decision on motion sequences #1 and #2 the plaintiff shall pay $2,000.00 monthly in interim support, without prejudice, to defendant and that plaintiff was to continue to pay all carrying charges and expenses he was currently paying on behalf of defendant and the parties' children.
The parties were scheduled to appear for a compliance conference on January 30, 2017 but the parties stipulated on consent to adjourn that conference to March 21, 2017 based upon plaintiff retaining new counsel to represent him in this action.[FN5] Early in March, counsel for the parties notified chambers staff that they may be resolving the pending pendente lite issues. Chambers staff notified counsel that a written decision on the pending applications was in drafting stage and requested that, in an effort to allocate judicial resources efficiently that counsel notify the Court by written stipulation if they were requesting additional time to resolve the pendente lite issues or if a pendente lite agreement had been reached between the parties. In an effort to to ascertain the status the Court directed the parties to appear for a status conference on Monday, March 13, 2017. On the record on March 13, 2017 counsel for the parties represented that they were no longer engaged in settlement conversations and they were no longer requesting that the Court hold in abeyance issuing a written decision on the issues sub judice.
Defendant-wife worked as a producer for a cable television channel earning $90,000 annually and plaintiff-husband had a law firm with a partner when the parties met in August 1998. The parties moved into the apartment owned by defendant after the marriage but that the parties purchased a marital residence in June 1999 using the proceeds from the sale of defendant-wife's separate property apartment from which she [*5]netted $205,000 in sale proceeds. Defendant claims she used $125,000 in sale proceeds for the down payment and invested another $80,000 for renovation. She argues that plaintiff did not contribute any money to the down-payment or renovations. She contends that she paid the mortgage for the marital residence, plus all the household expenses and the family's health insurance, from her salary and rental income from apartments in the marital residence until she resigned from her job after the parties' two (2) children were born.
During the marriage the parties purchased two (2) four-unit buildings in Brooklyn as investment properties: the first in 2003 and the second in 2008. Defendant argues that she managed the buildings during the marriage but that all of the rental income was deposited into plaintiff's bank account.
Defendant contends that the parties have had a long history of marital difficulties which, she contends, resulted from plaintiff allegedly engaging in "several affairs" during the course of the marriage which she first learned about in mid-2003. She argues that thereafter the parties continued to have marital difficulties and that plaintiff initially discussed divorce in 2008, that the parties lived separate and apart for approximately two (2) months in 2009 and that she found "provocative photos" exchanged between plaintiff and "another girlfriend" in 2012.
Defendant posits that the parties maintained separate finances during the marriage and never opened joint bank accounts. Defendant contends that while she was working this arrangement was "fair" but, she argues, after she resigned to raise the parties' children the plaintiff exercised financial "control" over her by "limiting" her access to funds. Defendant further contends that plaintiff "isolated" her from her friends and family and referred to her in demeaning terms.
Defendant argues that she was primarily responsible for the daily care of the parties' children during the marriage while her own career was "thriving" and while she was spending "a significant amount of time" supporting plaintiff's growing legal career and his pursuit of developing a sports agent practice. She avers that when she was not traveling for work she was responsible for the children in the mornings and evenings before and after the nanny arrived. She contends that plaintiff refused to participate in night time care for the children and that she was solely responsible for obtaining child care arrangements for the children when she was required to travel for work. Defendant contends that plaintiff did not support her work travel and accused her of engaging in extramarital affairs.
Defendant avers that D.E. was diagnosed with a learning disability and she "doggedly" pursued academic admissions personalized to his needs without any assistance from plaintiff. She argues that M.E. was diagnosed with learning disabilities in preschool and that plaintiff did not participate in any of the children's evaluations or in preparing or filing any paperwork to obtain special education resources for the children. She contends that in addition to providing all of the daily child care needs for the children [*6]— taking them to school and after school activities/therapies, cooking dinner, supervising homework, cleaning the marital residence, putting the children to bed, etc. — she also took M.E. to "occupational and speech therapy approximately three time per week" and implemented at-home interventions for him which, she argues, plaintiff did not participate. She also argues that she alone was instrumental in seeking additional neuropsychological evaluations for M.E. when he was preparing for third-grade and that she "embarked on a mission to get the City of New York to contribute to his tuition" at a specialized educational environment in Brooklyn where the tuition was approximately $57,000 annually. She also contends that she alone "navigated the high school admission process" for the children including arranging "extra time" for entrance examinations and obtaining specialized tutors so that M.E. could enroll in a "mainstream Catholic high school with a good wrestling program...."
Defendant contends that in late 2004 the parties agreed that she would resign from her job to raise the parties' children and to support plaintiff's career. She avers that plaintiff was "out of town approximately 40-50% of the time...." She argues that thereafter the parties' "often argued about money" because she had no access to funds and that plaintiff exercised financial control over her by providing her a "$400 allowance" monthly to cover the family's needs. She argues that the "allowance does not come close to covering" the "actually monthly expenses" for her and the children and that she "was forced to beg" plaintiff for additional money each month. She contends that as a result she began to accumulate "significant credit card debt."
Defendant obtained a real estate license in 2008 but contends that her income has been limited because of her daily obligations for the family. She argues that her income of $20,000 - $50,000 annually was used to pay for the children's summer camps and tutoring.
Defendant contends that the children's wrestling program is the only aspect of the children's lives in which plaintiff regularly participates. She contends that plaintiff selected additional wrestling coaching for the children outside of their school programs which required her to spend hours driving the children from their respective schools in Manhattan and Brooklyn to and from practices in Long Island "two to three times per week" from 2011-2015 often not returning home to Brooklyn after the wrestling practices until 10:00 p.m.. Defendant contends that the wrestling has been "greatly" beneficial for the children but that it has been time consuming and it has interfered with her ability to build her career in real estate because it has allowed her "little mid-week time to work" because she is responsible for transporting the children from school to various wrestling practices. She also argues that the children's extensive wrestling obligations on the weekends also limit her ability to work on the weekends.
Defendant concedes that plaintiff has taken an active roll in the children's wrestling during their middle and high school years; however, she avers that plaintiff has continued to leave the children's day-to-day care and all educational matters up to her. [*7]She asserts that she is the sole parent who coordinates and facilitates the children's academics, including finding tutors, helping with homework and preparing for admissions tests. She asserts that plaintiff does "not regularly attend" any of the children's non-wrestling activities or school events. She asserts, in effect, that her constant involvement and advocacy in the children's academics has helped them succeed particularly given their respective struggles over the years.
In his affidavit dated November 3, 2016, plaintiff asserts that he picks up and drops off the children at their wrestling practices and matches and that he "interact[s]" with their coaches. He does not, however, specify how frequently he is responsible for the children's transportation for these events. Defendant asserts that "based on our conversations I can comfortably say that the boys would prefer to live with me." He asserts that "defendant has a major inability to parent and discipline" and that, contrary to the defendant's assertions, he has "always been very involved with the children." He avers that "[a]s a partner in my own firm, I have a flexible schedule." He asserts that he takes the children "fishing" and on "vacations."
Defendant contends that the parties' marital tensions escalated in 2015 and that plaintiff has degraded her in front of the children by criticizing her limited financial contributions to the family. Defendant contends that plaintiff has actively engaged the children in the divorce action and in discussions about the parties' financial situation and that, thereafter, she found the children researching "child support" and "child custody" on the internet.
She avers that in 2016 plaintiff took several vacations with the parties' children but refused to take her. She posits that plaintiff denigrates her in the presence of the children and that, she claims, as a result the children have started "echoing statements" used by plaintiff to demean her. She contends that the children are beginning to adopt what she believes are the plaintiff's "misogynistic views...." She argues that in February 2016 the parties agreed to pursue a divorce.
Defendant asserts that the parties have shared parenting time with the children "approximately 50% split on an ad hoc basis" using an alternating week schedule since July 2016. The parties entered into a written consent stipulation dated November 21, 2016 setting a temporary parenting time schedule whereby the children will alternate weeks with each parent.
Defendant contends that in 2016 plaintiff combined and renovated two of the four apartments together with the basement of one of the parties' investment properties into a triplex apartment where he has lived since July 2016. Defendant contends that plaintiff "spared no expense on the renovation" and "purchased expensive furniture, art, and electronics."
On November 21, 2016, the parties entered into a written stipulation providing that pendente lite defendant shall have exclusive use and occupancy of the marital residence [*8]and plaintiff shall have exclusive use and occupancy of specific units in one of the parties' investment properties. In his order to show cause [mot. seq. #2], plaintiff requests that the Court order the parties to "maintain the parties' current financial status quo, to wit: ...requiring the parties to continue paying the mortgages on their properties from the respective rents collected;...requiring the defendant to rent out for a market rate at least one unit" at the marital residence.
Plaintiff's affidavit of net worth dated June 22, 2016 lists monthly income of $23,392 and the following monthly expenses (totaling $31,283 monthly): housing, $12,448 [FN6] ; utilities, $1,450 [FN7] ; food, $1,450 [FN8] ; clothing, $600 [FN9] ; laundry, $180 [FN10] ; insurance, $3,718 [FN11] ; unreimbursed medical, $900 [FN12] ; household maintenance, $610 [FN13] ; household help, $500 [FN14] ; automotive, $1,380 [FN15] ; educational, $3,050 [FN16] ; recreational, $2,217 [FN17] ; miscellaneous, [*9]$2,780 [FN18] .
Defendant argues that plaintiff's income exceeds what is disclosed on his affidavit of net worth dated June 22, 2016 because his listed monthly expenses are $31,283 while his monthly income is listed as $23,392. Defendant contends that plaintiff's representation regarding his income is not credible because his monthly expenses are approximately $100,000 greater than his reported income annually and because during the marriage plaintiff "had enough money" to put down-payments on two (2) investment properties and to purchase "two luxury cars and a $129,000 boat...."
She also contends that plaintiff must be earning much higher income because the 2015 gross receipts of his law firm partnership exceeded $2.5 million and he reported gross receipts of more than $130,000 in the months after he terminated his law firm partnership and started his own firm. She also contends that plaintiff pays personal expenses though his business.
Defendant avers that her 2015 income from all sources was $19,461.[FN19]
Defendant's affidavit of net worth dated April 5, 2016 lists the following monthly expenses (totaling $32,709 monthly): housing, $13,885; utilities, $1,862 [FN20] ; food, $1,223 [FN21] ; clothing, $395 [FN22] ; laundry, $100 [FN23] ; insurance, $5,839 [FN24] ; unreimbursed medical, $1,052 [FN25] ; [*10]household maintenance, $1,331 [FN26] ; household help, $240 [FN27] ; automotive, $805 [FN28] ; educational, $3,958 [FN29] ; recreational, $1,125 [FN30] ; miscellaneous, $894 [FN31] .
The parties' affidavits of net worth reflect almost identical expenses for almost all of the monthly expenses. The largest difference between the parties is for household maintenance which plaintiff alleges defendant has inflated by $461. Plaintiff claims that certain household maintenance expenses in defendant's affidavit of net worth are "absurd" such as "[o]ur 'exterminator' costs (she claims $15) consists of a $3.99 can of Raid." Defendant avers that the expenses in her affidavit of net worth are derived from an examination of payments and are accurate.
It is undisputed between the parties that the rental income from their two (2) investment properties cover the mortgage payments for all three (3) properties, including the marital residence. In his affidavit dated November 10, 2016 plaintiff avers that "the mortgages are paid from the rental income" generated by the parties' investment properties. Plaintiff concedes that in addition to paying the carrying charges for the three (3) properties that the rental income from the two (2) investment properties also resulted in a "small income" as such neither party paid carrying charges out of his or her salary or income generated from employment.
The parties disagree as to the monthly cash payment plaintiff has provided voluntarily to defendant: plaintiff avers that it is $800 while plaintiff avers that it is $600 because $200 of the $800 is provided for her to provide to "maintenance workers" at the [*11]two (2) investment properties.[FN32]
Defendant concedes that plaintiff has continued to pay the mortgage and home equity loan payments on the marital residence ($5,929 monthly) and the utilities ($944 monthly) and that he has voluntarily provided her with $600 in cash monthly for her personal expenses which, she argues, is insufficient to meet her basic daily needs. As a result, she argues that she has incurred almost $12,000 in credit card debt since the date of commencement for her daily living expenses including items for the children when they are in her care.
The parties' joint 2015 federal tax return reports income of $325,383 and of which $19,461 was earned by defendant.[FN33] The remaining $305,922 of income is comprised as follows: $56,514 [REDACTED Law Firm, PLLC]; $219,330 [REDACTED LLP]; and $33,067 [REDACTED Sports LLC]. The parties' real estate income is detailed on Schedule E and reports $152,284 in rents received less $142,257 in expenses leaving a reported annual income of $10,529.
Plaintiff adamantly rejects defendant's allegations regarding imputation of income to him and asserts that his income as reflected on the parties' joint tax returns is accurate and, he argues, defendant should be limited to the income detailed in the parties' joint tax returns since she signed them and has not alleged any basis for an innocent spouse exception.[FN34] At the same time, plaintiff, in his affidavit dated November 3, 2016, avers that he has "no idea" what defendant earned in 2015, despite his assertion that the parties should be bound by the incomes reported in their joint tax returns.
Defendant seeks an award of $6,166 monthly in pendente lite maintenance "plus an appropriate amount of child support" retroactive to April 26, 2016 (date of notice of appearance and demand for complaint) and that plaintiff continue to pay the mortgage and home equity loan for the marital residence.
Defendant was employed full-time as a cable network producer when the parties married in 1999 earning approximately $90,000. She argues that she "paid nearly all" of the parties' living expenses during the early years of the marriage "so that Plaintiff could [*12]pay off his student loans and build his practice" but that after the parties' two (2) children were born the parties jointly decided that she should would resign from her employment so that she could take "primary responsibility" for the children's "day-to-day needs and manage their special education needs so that Plaintiff could continue to build his practice and enter the sports agent field." She further argues that she "supported Plaintiff's business efforts by entertaining his clients at our home and at events" and that she has been the primary party "responsible for managing our investment real estate properties, securing reimbursements from the City of New York for [son's] expensive special needs school, and preparing nearly all of our family meals..." She argues that plaintiff has been the primary financial support for the family for many years and that he has restricted her access to marital income to exert financial control over her. She posits that her daily responsibilities for the parties' children have made it very difficult to expand her income from her real estate business.
Pursuant to the statutory calculation, the guideline sum of pendente lite maintenance up to the $178,000 cap would be $2,561 monthly. In her affirmation in support, defendant's counsel argues that the Court should exceed the statutory guideline cap of $178,000 based upon the facts presented, including the marital standard of living, when calculating an award of pendente lite maintenance. Defendant's counsel posits that the Court should impute income of $750,000 to plaintiff and apply the statutory guideline calculation to the full sum of imputed income which would, defendant's counsel calculates, yield a pendente lite maintenance award of $12,095 monthly. Defendant's counsel contends that if plaintiff continues to pay the mortgage and home equity line of credit on the marital residence ($5,929 monthly) then his maintenance obligation should be reduced to $6,166 monthly ($12,095 less $5,929 = $6,166).
Plaintiff takes the position that defendant's request for pendente lite maintenance is unnecessary because, he asserts, he pays the mortgage on the marital residence, "give[s] her $800 per month" and pays "every expense" listed on defendant's amended statement of net worth dated April 5, 2016 "except her clothes, personal expenses and food for her and the boys when they visit her." He argues that defendant's "actual out of pocket expenses are minimal: he asserts that the "actual" monthly expenses paid directly by the defendant total $2,260.
Plaintiff asserts that "maintaining the status quo financially is most fair pendente lite" and that instead of the Court ordering him, the more monied spouse, from paying pendente lite maintenance that defendant can pay her personal expenses by "rent[ing] out one or two units at [marital residence] for $3,000 per month each![emphasis in original]" Plaintiff asserts that the top two floors of the marital residence "are rentable" and that the parties "used to have tenants" on those floors but now the parties' children lives on those floors. He argues that the children "can move down to the garden level and share a room when they visit their mother...." Plaintiff contends that this arrangement would provide [*13]"$5,000-$6,000 in rental income each month."He argues that defendant is engaging in wasteful dissipation because she has not agreed to rent out floors in the marital residence to generate additional income for the parties.
In his affidavit dated November 10, 2016, plaintiff concedes that the parties have not rented out units in the marital residence since 2008 but, he argues, reducing the marital residence by two floors would be "more than ample for [plaintiff] and the boys." He contends that there is "no useful reason to continue using the entire four floors of the [marital residence] for a family of three..." Plaintiff argues that there is "nothing inequitable" about his position because it is "intelligent financial management."
Plaintiff also proposes that if the Court were to award pendente lite maintenance to defendant that the award "should be reduced by 30% because [defendant] lives rent-free..." Plaintiff opines that the reduction by 30% is based upon "[t]he general rule of thumb is that rent should be no more than 30% of your income..."
In her affidavit dated November 14, 2016 defendant avers that the parties have not rented out units in the marital residence since 2006 and that plaintiff does not address the "impact" that his proposal would have on the children. Defendant avers that there is "only one staircase" in the marital residence so if she "rented one of the floors to tenants, the Children and I would encounter the tenant(s) and/or the tenants' guests as we travelled [sic] between out bedrooms, the kitchen, and the living room which are on different floors" and that she and the children would "be required to lock each floor and carry keys with us to go, for example, from our bedrooms to get a snack in the kitchen." Defendant also asserts that plaintiff's proposal that the children "should move out of their own rooms and into a small, shared room in the basement in the 'garden level' is contrary to the Children's best interests and a thinly veiled attempt to make living with me less attractive and comfortable for them." She argues that the children "have lived in the Marital Residence as a single fmaily home for most of their lives and are accustom to having their own bedrooms and space" and that "[r]enting out their bedrooms would be upending and unnecessary."
Plaintiff also opposes an award of pendente lite on a theory essentially of imputation of income to defendant. While in his affidavit dated November 10, 2016, plaintiff avers that he has "been paying all of our family expenses for years" because, he contends, "defendant has contributed almost nothing" plaintiff also argues that defendant "can return to the workforce and get a job more suitable to her ability, instead of dabbling in real estate, which has not seemed to yield much fruit after eight years." He concedes that defendant has "not made a serious foray into the workplace since then" although he asserts that he has encouraged her to do so. He argues that defendant has had "all the hours the children are in school and wrestling practice to work" but that she "prefers to work minimally."
Plaintiff argues that assuming defendant's reported income of approximately $1,200 monthly is correct that her income plus the $800 in cash he is currently providing [*14]to her "should be more than adequate for her..."
Plaintiff's counsel argues that awarding defendant pendente lite maintenance based upon the statutory formula "would result in a bonanza for the defendant" because "[o]f the $30,0000 in expenses...less than $3,000.00 are incurred by the defendant each month." Plaintiff's counsel also argues that "defendant could be working full time" and that "[s]trict application of the statutory formulas" would result in "extended litigation" because, he contends, "the children will end up living primarily with the plaintiff..."
In his affirmation in support dated November 14, 2016, plaintiff's counsel argues that the Court should not impute any income to plaintiff and that defendant should be "held accountable for the income reported on the parties' joint tax return...." However, plaintiff's counsel also argues that "[i]f anything, the court should impute $90,000 to the defendant, which she says she earned in 2004." Plaintiff's counsel also asserts that any award of pendente lite maintenance should be calculated using defendant's 2014 income even though plaintiff annexed the parties' 2015 federal income tax returns to his application. In his November 14, 2016 affirmation, plaintiff's counsel offered no credible argument for why the Court should use the parties' 2014 tax returns instead of the 2015 tax returns.
Plaintiff's counsel, in his affirmation dated November 13, 2016, argues that the Court "should presume a predominance of non-marital related charges" are the basis for defendant's assertion that she is incurring credit card debt due to plaintiff's alleged underpayment of voluntary support during the pendency of this action.
Plaintiff contends that he has been paying "all" of the marital expenses for many years and plaintiff's counsel asserts that defendant pays "none of the marital expenses and only some of her own expenses..." Defendant avers that her limited income has been used to pay for the children's summer camp and tutoring expenses as well as toward her personal expenses during the marriage.
Defendant's counsel argues that a pendente lite basic child support award calculated based upon imputed income of $350,000 to plaintiff is appropriate here.
In his affirmation dated November 14, 2016, plaintiff's counsel posits that since "defendant herself only seeks split custody and the children live with her at most 50% of the time" that any child support award "should be far less than the full guidelines" amount. Plaintiff's counsel does not offer any statutory or case law in support of this argument.
Defendant argues that the Court should award her counsel fees because she is the less monied spouse having "abandoned her career" to support the family at home and because, she contends, plaintiff's actions and litigation positions have forced her to incur "avoidable counsel fees". Defendant's counsel also contends that plaintiff has engaged in "wasteful dissipation of marital property" but does not detail what of plaintiff's financial [*15]actions she believes amounted to wasteful dissipation.
Defendant's counsel is billing at $675 hourly for the supervising attorney and $480 hourly for associates. Defendant's counsel affirms that many attorney billing hours were spent "trying to settle this case" and participating in voluntarily mediation before the request for judicial intervention was filed. As of the filing of her order to show cause defendant had incurred $49,722 in legal fees for services rendered in connection with this action. Defendant's counsel notes that this sum of counsel fees "reflects reductions from actual time spent, including reductions for multiple attorneys working on a single task." Defendant's counsel affirms that defendant was charged $17,376 in connection with preparing the order to show cause for pendente lite relief [motion sequence #1] and that she anticipates defendant will incur approximately $14,700 in counsel fees for responsive papers for motion sequence #1 and #2 and that $2,025 will be incurred for the court appearance to argue the application and another $300 in disbursements required for filing and service. Defendant's counsel seeks $66,747 for counsel fees, which she contends is the sum incurred that will have been incurred by defendant in connection with this action after oral argument of these motions, as well as an award of $25,000 in prospective counsel fees.
Plaintiff, in his affidavit dated November 10, 2016, argues that defendant's counsel fee request "is exorbitant" because, he argues, he has only paid his attorney approximately $10,000.00 in counsel fees. He opposes defendant's counsel fee application arguing that his attorneys' hourly billing rates are "cut-rate" compared to the hourly rate charged by defendant's counsel. He asserts that "[i]f there is a playing field that needs leveling in this matter" it is from defendant because "[s]he is paying over double per hour" what he is paying. He further asserts that he finds the hours detailed by defendant's counsel as spent preparing defendant's order to show cause "incredibly high."
Plaintiff argues that he is "already paying" defendant's counsel fees because she paid using the parties' line of credit which he claims his income alone is paying. He argues that an award of counsel fees "anywhere near the amount of her request would be inequitable and militate..."
Plaintiff's counsel in his affirmation dated Novmeber 13, 2016 argues that "defendant will not have skin in the game" if plaintiff is made to pay all or a significant amount" of her counsel fees. Plaintiff's counsel argues that "it is the defendant seeking to wear down the plaintiff with her extremely high-priced attorneys and her exorbitant request for counsel fees." He further argues that if the Court awards counsel fees to defendant it should only be "an award of attorney fees in line with what the plaintiff himself has paid to his attorneys." He also asserts that plaintiff has no source from which to obtain funds to pay a counsel fee award to defendant.
Plaintiff's affidavit of net worth dated April 2016 lists total assets of $6,354,500 and the only liabilities listed are the mortgages on the parties' three (3) properties, each of which, according to plaintiff's affidavit, total $1,576,889. Plaintiff's affidavit of net worth [*16]does not list any other debts or liabilities.
This action was commenced on April 5, 2016, as such, the statute in effect at that date was DRL 236 [B], effective October 25, 2015, requiring Courts to calculate and award temporary maintenance awards derived from applying statutory formulas to parties' annual income in an effort to regulate and create more consistency among pendente lite maintenance awards. This statutory provision is commonly referred to as the temporary maintenance guidelines (the "guidelines").
The legislation established factors that a Court may consider when deviating from awarding the presumptively correct temporary maintenance under the guidelines. In applying the statutory formulas, the Court must first determine the parties' respective annual incomes pursuant to the Child Support Standards Act. Here, the parties' lifestyle and their respective representations regarding their monthly expenses during the marriage greatly exceed the income reported on their 2015 joint tax returns. At the same time, the parties were able to purchase a marital residence and two (2) four-unit dwelling investment properties in Brooklyn and the following unencumbered vehicles: a 2010 BMW 750Li, purchased fro $54,000; a 2007 Porsche Boxster, purchased for $30,000; and a 2003 Lexus GX 470, purchased for $12,000. The parties also purchased a Silverton Yacht for $129,000 which is also unencumbered.[FN35] Defendant also lists an IRA with a balance of $380,027 of which she asserts $236,995.77 was contributed before the parties married.
The only liabilities listed on plaintiff's affidavit of net worth are mortgages totaling approximately $1,576,888 on the parties' real estate properties which he lists as having a total value of $6,100,000. Plaintiff lists no credit cards on his affidavit of net worth or any other revolving line of credit or outstanding loans or debts. Defendant lists two credit cards with a total outstanding balance of $22,405 in debt of which she avers $11,757 was incurred post commencement for living expenses for herself and the children when they are in her care.
Clearly, the expenses detailed by the parties, the value of the marital assets and the limited extent of liabilities, including no credit card debt reported by plaintiff, reveal plaintiff's income and/or access to funds is greater than reported. The Court will not, at this time, accept plaintiff's argument that defendant, who has not been a principal source of financial support for the family in many, many years by plaintiff's own affidavit is bound by the joint tax returns for the purposes of determining pendente lite support where the parties' respective representations regarding the monthly expenses are almost [*17]identical. Additionally, plaintiff does not assert that defendant was, in any way, involved in the preparation of the business tax returns that resulted in his personal reported income.
The novel theory proffered by plaintiff that defendant should be required to pay her daily expenses, including groceries, by renting out the two floors of the marital residence where it is undisputed that the parties' two (2) teenage children have lived during the marriage because that would be maintaining the status quo is entirely disingenuous. Despite plaintiff's assertions that, now that the marriage is being dissolved, less living space would be "adequate" for the defendant it is clear that such an arrangement would be a dramatic change from the way the parties lived during the marriage. Additionally, defendant's position that such a change would place the onus on the parties' children during this already challenging time as their parents navigate through this divorce is not misplaced. Plaintiff's request that the Court should remove the children from their rooms and moving them to a shared bedroom while they are in the defendant's care so that plaintiff does not have to pay pendente lite maintenance is denied.
The defendant's itemized expenses in her Affidavit of Net Worth, at this time, appear consistent with the lifestyle she and the children would have enjoyed had the marriage continued. The Court notes that the expenses detailed by plaintiff are almost identical to those detailed by the defendant. Plaintiff primarily disputes $461 of the $911 in household expenses detailed by defendant which he argues are "absurd" including "[o]ur 'exterminator' costs (she claims $15) consists of a $3.99 can of Raid." The monthly expenses listed by defendant are as follows:
|
Expense | Monthly Cost |
Notes |
|
Marital Residence mortgage |
|
It is undisputed by the parties that this expense is paid using rental income from the
parties' investment properties â€" see
plaintiff's affidavit dated November 10, 2016 |
|
Marital Residence HELOC |
|
Plaintiff asserts that he is currently paying this expense â€" it is not clear from either parties'
papers whether this is also paid from the rental income generated from the investment properties or paid from plaintiff's employment income |
|
Marital Residence utilities | $944 |
|
|
Groceries | $408 | |
|
Lunches at work | $160 | |
|
Liquor | $36 | |
|
Dining Out | $368 | |
|
Ordering In | $52 | |
|
Clothing | $395 | $148 is listed as clothing for the children; $247 is listed as clothing for the defendant-wife |
|
Laundry | $100 |
|
|
Defendant's Therapist | $680 | |
|
Household maintenance | $911 |
Plaintiff asserts that this expense is inflated by the sum of $461 for such
expenses as extermination which defendant lists as $15/month and plaintiff contends is "a $3.99 can of Raid" |
|
Housekeeper | $240 | |
|
Car | $805 | |
|
Vacation | $250 | |
|
Movies | $30 | |
|
Theater | $98 | |
|
Videos | $65 |
|
|
Cable | $195 | |
|
Health Club | $60 | |
|
Liquor | $36 | |
|
Miscellaneous (grooming, beauty, | $894 | |
|
TOTAL | $6,691 |
Defendant lists the following expenses for the children:
|
Expense |
Monthly Cost |
|
School tuition |
$2,158 |
|
School transportation |
$933 |
|
School supplies |
$67 |
|
Tutoring |
$800 |
|
Camp |
$125 |
|
Team Sports |
$142 |
|
Sports Lessons |
$160 |
|
Total |
$4,241 |
Plaintiff argues that if the Court awards defendant pendente lite maintenance that under Khairi v. Khairi the Court must direct that defendant is financially responsible to pay the carrying charges on the marital residence (93 AD3d 194, 938 NYS2d 513 [1 Dept.,2012]). In Khairi, the wife sought an award of pendente lite maintenance under Domestic Relations Law 236(B)(5-a)(c), as effective October 25, 2015, and an award of child support in compliance with the CSSA calculation as well as an order of the Court that the husband directly pay the carrying costs on the marital residence and the Court found that "calculating the guideline amount and then simply adding the direct mortgage payment on top of that, the motion court awarded more than the amount reached by the formula, without providing the required explanation" (93 AD3d at 200). The holding in Khairi has come to be referenced for the principle that, absent unique facts and circumstances, an award of temporary maintenance and an order directing the payor to [*18]make direct payment of the payees carrying charges results in a "double dip" situation. In fact, this consideration was incorporated into the maintenance guidelines statute as amended September 25, 2015.
The Court notes that under the facts and circumstances of this case it is undisputed that the parties have used the rental income from the parties' investment properties to pay the carrying charges on all of the parties' properties, including the marital residence.[FN36] As such, plaintiff is not, as he argues, paying the mortgage for the defendant. Rather, the plaintiff avers in his November 10, 2016 affidavit that the rental income is funding the mortgage on the marital residence: "[t]he defendant lives for free in the marital residence, as the mortgages are paid from the rental income from our other properties." It appears, based upon plaintiff's affidavit, that the use of that investment income to pay the mortgage on the marital residence is increasing the total equity available in that property which will, eventually, be available for the parties to apportion in a settlement or subject to equitable distribution upon an ultimate determination by the Court. As such, the facts presented here are distinguishable from the circumstances contemplated as a "double-dip" by the Court in Khairi v. Khaira (93 AD3d 194, 938 NYS2d 513 [1 Dept.,2012]). As such, the Court directs that parties continue the status quo by using the rental income generated by the investment properties to pay the carrying charges on the marital residence. The plaintiff shall continue to be solely (100%) financially responsible for maintaining the insurance policies in place for the family, including the defendant's auto insurance subject to reallocation at time of trial.
The Court rejects plaintiff's position that defendant should be required to removed the parties' two (2) teenage children from their separate bedrooms and move them to a shared bedroom in the lower level of the marital residence, renovate the marital residence to accommodate tenants and then rent out the top floors of the marital residence in order to subsidize daily living expenses for her and the children when they are in her care. Plaintiff contends that this would be maintaining the status quo because, he argues, the parties rented out parts of the marital residence early in the marriage. Given the financial resources of these parties and the lifestyle established by the parties during the marriage the Court categorically rejects this proposition finding that, contrary to plaintiff's assertion, it would in fact be a fundamental change in the status quo. It is undisputed that for more than a decade the parties and the parties' children enjoyed the full use of the marital residence. Plaintiff cites no legal authority in support of this position and the Court is not aware of any.
Plaintiff's position now that he has established a separate residence that limiting the defendant and the children to, effectively half, the marital residence is "more than adequate" is not adopted by this Court. Additionally, the Court finds that plaintiff's argument that there is "no useful reason" for defendant not to now, after many years, [*19]"generate income" by renting out parts of the marital residence is incongruent, certainly pendente lite, with maintaining the status quo.
This Court has fully considered the temporary maintenance guidelines and statutory factors in DRL §236(B)(5-a)[effective October 25, 2015]). The parties' incomes, as reported on their joint 2015 federal income tax returns, the most current tax returns provided to the Court, are as follows: plaintiff's gross income, $305,922 (no FICA or NYC taxes are deducted as no proof of payment was provided); defendant's income, $19,461 (no FICA or NYC taxes are deducted as no proof of payment was provided). The calculation provides as follows:
20% of the payor's income up to and including the cap ($178,000)
- 25% of the payee's income ($4,865.25) = $30,734.75;
Payor's income up to and including the cap ($178,000.00)
+ Payee's income ($19,461) = Combined income ($197,461)
40% of combined income $197,461 x .40 = $78,984.40)
- Payee's income ($19,461) = $59,523.40.
The first calculation resulted in the lower of the two awards. Thus, pursuant to the temporary maintenance guidelines calculation, the basic pendente lite maintenance award would be: $30,734.75 (annually); $2,561.23 (monthly).
Here, the payor's income exceeds the $178,000 cap. DRL 236(B)(5-a)(h)(1) provides the Court with discretion to award additional pendente lite maintenance above the award calculated using the guidelines.
The Court notes that in considering income above the statutory cap there is a very important and fundamental difference between calculating basic child support under the Child Support Standards Act and the Court making an award of maintenance using the maintenance guideline statute as amended October 2015. When calculating an award of pendente lite maintenance on income above the statutory cap DRL § 236(B)(5-a) provides that the formula is only applied to the first $178,000. If the Court finds it appropriate to consider income over the $178,000 the Court must consider the factors set forth in DRL § 236(B)(5-a)(h)(1); however, the maintenance guideline statute formula is not applied when calculating an award on income above the $178,000 cap.
The Court may deviate from the guideline amount of temporary maintenance, including awarding temporary maintenance on income above the cap, if the Court finds that, upon consideration of one or more of the factors set forth in DRL § 236(B)(5-a)(h)(1), strict application of the statutory formulas would be unjust or inappropriate. DRL 236(B)(5-1)(h)(1) and (2) provide as follows:
(1) The court shall order the guideline amount of temporary maintenance up to the income cap in accordance with paragraph c of this subdivision, unless the court finds that the guideline amount of temporary maintenance is unjust or [*20]inappropriate, which finding shall be based upon consideration of any one or more of the following factors, and adjusts the guideline amount of temporary maintenance accordingly based upon such consideration:
(a) the age and health of the parties;
(b) the present or future earning capacity of the parties, including a history of limited participation in the workforce;
(c) the need of one party to incur education or training expenses;
(d) the termination of a child support award during the pendency ofthe temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and which resulted in a maintenance award lower than it would have been had child support not been awarded;
(e) the wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;
(f) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
(g) 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;
(h) the availability and cost of medical insurance for the parties;
(i) the care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;
(j) the tax consequences to each party;
(k) the standard of living of the parties established during the marriage;
(l) the reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage; and
(m) any other factor which the court shall expressly find to be just and proper.
(2) Where the court finds that the guideline amount of temporary maintenance is unjust or inappropriate and the court adjusts the guideline amount of temporary maintenance pursuant to this paragraph, the court shall set forth, in a written decision or on the record, the guideline amount of temporary maintenance, the factors it considered, and the reasons that the court adjusted the guideline amount of temporary maintenance. Such decision, whether in writing or on the record, shall not be waived by either party or counsel.
Based upon the factors detailed above, the Court finds that an additional award of $1,500 above the award calculated using the maintenance guideline statute formula up to the cap of $178,000 is just and appropriate based upon: (b) the present or future earning [*21]capacity of the parties, including a history of limited participation in the workforce by defendant; and (k) the standard of living of the parties established during the marriage as fully detailed by the Court herein above in the chart of monthly living expenses presented by defendant with only nominal differences noted by plaintiff.
Plaintiff is hereby directed to pay pendente lite maintenance to defendant in the sum of $48,734.76 annually/$4,061.23 monthly ($2,561.23 [the lesser of the two maintenance amounts resulting from the two calculations] plus $1,500 [the additional discretionary award that this Court finds just and appropriate] = $4,061.23).
Pendente lite maintenance payments shall be tax deductible to plaintiff and income to defendant as permissible under applicable tax code. See 26 U.S.C.A. § 71(b)(1)(B).
Effective January 31, 2010, "[t]he court shall multiply the combined parental income up to the amount set forth in paragraph (b) of subdivision two of section one hundred eleven-I of the social services law by the appropriate child support percentage and such amount shall be prorated in the same proportion as each parent's income is to the combined parental income." (DRL 240 1-b [c][2]). The Social Services law states that:
[t]he combined parental income amount to be reported in the child support standards chart and utilized in calculating orders of child support in accordance with subparagraph two of paragraph (c) of subdivision one of section four hundred thirteen of the family court act and subparagraph two of paragraph (c) of subdivision one-b of section two hundred forty of the domestic relations law shall be one hundred thirty thousand dollars; provided, however, beginning January thirty-first, two thousand twelve and every two years thereafter, the combined parental income amount shall increase by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPIU) as published by the United States department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars. (Social Services Law § 111-I[2][b]).
Domestic Relations Law section 240 1-b (b)(5)(iii) further defines gross income. "[T]o the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the amount of income or compensation voluntarily deferred and income received, if any, from the following sources:
(A) workers' compensation,
(B) disability benefits,
(C) unemployment insurance benefits,
(D) social security benefits,
(E) veteran's benefits,
(F) pensions and retirement benefits,
(G) fellowships and stipends, and
(H) annuity payments
In determining a party's child support obligation, the Court need not rely upon a party's own account of his or her finances, but may impute income based upon the parties' past income or demonstrated earning potential or on the income the parent is capable of earning "by honest efforts" (Morille-Hinds v. Hinds, 87 AD3d 526, 928 N.Y.S.2d 727 [2 Dept., 2011]; see also Genender v. Genender, 40 AD3d 994, 836 N.Y.S.2d 291 [2 Dept., 2007]; Westenberger v. Westenberger, 23 AD3d 571 [2 Dept., 2005]; Rocanello v. Rocanello, 254 AD2d 269, 678 N.Y.S.2d 385 [2 Dept., 1998]). This is particularly true where the record supports a finding that a parties' reported income on a tax return is suspect (see Ivani v. Ivani, 303 AD2d 639, 757 N.Y.S.2d 89 [2 Dept., 2003]; see also Maharaj-Ellis v. Laroche, 54 AD3d 677, 863 N.Y.S.2d 258 [2 Dept., 2008]; Matter of Graves v. Smith, 284 AD2d 332, 725 N.Y.S.2d 367 [2 Dept.,2001]). Further, it is well-established that the Court can award child support based on the needs of the child where the court finds that a payor spouse's representations regarding income are not credible (see Domestic Relations Law § 240[1-b][k]; see also Lew v. Lew, 82 AD3d 1171, 920 N.Y.S.2d 230 [2 Dept., 2011]; Evans v. Evans, 57 AD3d 718, 870 N.Y.S.2d 394 [2 Dept., 2008]).
Domestic Relations Law 240 1-b (b)(5)(iv) states that "... at the discretion of the court, the court may attribute or impute income from, such other resources as may be available to the parent, including, but not limited to:
(A) non-income producing assets,
(B) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirectly ... confer personal economic benefits,
(C) fringe benefits provided as part of compensation for employment, and
(D) money, goods, or services provided by relatives and friends
Domestic Relations Law section 240 1-b (b)(5)(v) specifically permits "an amount imputed as income based upon the parent's former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support".
The Court next multiplies the combined parental income figure up to an initial statutory cap, which is currently combined parental income up to the sum of $143,000.00, by a designated percentage based on the number of children to be supported, and then allocates that amount between the parents, applying each parent's respective portion of the total income to reach the amount of each parent's support obligation (see Holterman v. Holterman, 3 NY3d at 11, 781 N.Y.S.2d 458, 814 N.E.2d 765, supra, quoting DRL 240[1-b][b][3]; [c][2] ). In the final step, where combined parental income exceeds the statutory cap, "the court shall determine the amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of [Domestic Relations Law § 240(1-b)] and/or the child [*22]support percentage" (id).
The "paragraph (f)" factors include the financial resources of the parents and child, the health of the child and any special needs, the standard of living the child would have had if the marriage had not ended, tax consequences, non-monetary contributions of the parents toward the child, the educational needs of the parents, the disparity in the parents' incomes, the needs of other nonparty children receiving support from one of the parents, extraordinary expenses incurred in exercising visitation and any other factors the court determines are relevant.
Finally, the Court is required to articulate its reasons for awarding child support in addition to basic child support above the statutory cap (see Wallach v. Wallach, 37 AD3d 707, 831 N.Y.S.2d 210 [2 Dept., 2007], quoting Matter of Cassano v. Cassano, 85 NY2d 649, 654-655, 628 N.Y.S.2d 10, 651 N.E.2d 878, supra; see also Clerkin v. Clerkin, 304 AD2d 784, 759 N.Y.S.2d 500 [2 Dept., 2003]; Wagner v. Dunetz, 295 AD2d 501, 744 N.Y.S.2d 344 [2 Dept., 2002]).
Plaintiff argues that defendant should not be awarded pendente lite child support because the parties have agreed on a temporary 50/50 shared parenting access for the children and, his counsel argues, "the children will end up living primarily with the plaintiff...." Plaintiff's counsel argues that a pendente lite award of child support would "only encourage the defendant to take an entrenched position...." There is no Court determination at this time supporting plaintiff's counsel's assertion that the children will "end up living primarily with the plaintiff." Nor does the Court adopt plaintiff's position that shared parenting access negates his financial obligation to provide basic child support for the children where, as is the case here by his own assertion, he has been the primary wage-earner for the family for years.
In effect, plaintiff proposes a version of the proportional offset formula which the Court of Appeals "explicitly" rejected in Bast v. Rossoff (91 NY2d 723, 732, 675 NYS2d 19 [1998]) nearly two decades ago. In Bast, the Court of Appeals directly addressed the issue of how child support should be calculated when parents have "shared custody" of their child and noted that the cost of support children in shared custody arrangements may be even higher than in a sole custody arrangement because shared custody can increase the total cost of supporting a child by necessitating duplication of certain household costs in each parent's home (91 NY2d at 730). The Court of Appeals further noted that calculating a parent's basic child support obligation based upon each parent's respective ratio of parenting time could result in the "undesirable potential of 'encouraging a parent to keep a stop watch on visitation' in order to increase his or her shared custody percentage..." (id. at 732).The Court of Appeals specified that "[w]e can only conclude that the Legislature saw fit not to create an exception to the CSSA for shared custody arrangements, nor will we" (id. at 729) and found that in shared custody cases where the statutory formula would yield an unjust or inappropriate award the trial court "can resort to the 'paragraph (f)' factors and order payment of an amount that is just and appropriate" [*23](id.). This Court finds that under the facts and circumstances presented in this case that deviating from the statutory CSSA formula, as requested by plaintiff, is not appropriate because doing so would place the economic burden of the parties' separation on the parties' children when they are in the defendant's care (see generally id. at 731).[FN37]
On October 26, 2015, the Child Support Standards Act (DRL §240(1-b) (5)(iii)) was amended, effective January 26, 2016, to provide that in a calculation of child support in Family and Supreme Court, maintenance awards were to be considered income to the payee spouse for the calculation.[FN38]
Adjusting the plaintiff's income to take into account this Court's pendente lite maintenance award, the plaintiff's income for the purposes of child support is $251,187.24 ($305,922 [2015 income] less $54,734.76 [maintenance] = $251,187.24) and defendant's income is $74,195.76 ($19,461 [2015 income] plus $54,734.76 [maintenance] = $74,195.76).
Accordingly, the plaintiff's child support obligation up to the $143,000 cap would be as follows: combined income up to and including the $143,000.00 cap = $143,000.00 x .25 [2 children] = $35,750 basic child support annually. Plaintiff's pro rata = 79.04% or $28,257.30 annually ($2,354.77 monthly) and defendant's pro rata = 20.96% or $7,492.70 annually ($624.39 monthly).
Where combined parental income exceeds $143,000.00, as in the case at bar, the statue provides that "the court shall determine that amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of this subdivision and/or the child support percentage" (Matter of Cassano v. Cassano, 85 NY2d 649, 653, 628 NYS2d 10 [1995] (quoting Family Ct Act 413 [1] [c] [3]). "The court must articulate its reason or reasons for that determination, which should reflect a careful consideration of the stated basis for its exercise of discretion, the parties' circumstances, and its reasoning why there should or should not be a departure from the prescribed percentage" (Gillman, 139 AD3d at 669). [*24]"In addition to providing a record articulation for deviating or not deviating from the statutory formula, a court must relate that record articulation to the statutory factors" (Matter of Pittman v. Williams, 127 AD3d 755, 756, 7 N.Y.S.3d 227 [2d Dept., 2015]; see Bast v. Rossoff, 91 NY2d 723, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998].
"[T]he court may disregard the formula if 'unjust or inappropriate' but in that event, must give its reasons in a formal written order, which cannot be waived by either party (Family Ct Act § 413 [1] [g])" Cassano, 85 NY2d at 654. "Whenever the basic child support obligation derived by application of the formula would be 'unjust or inappropriate, the court must consider the 'paragraph (f)' factor," including, "the financial resources of the parents and child, the health of the child and any special needs, the standard of living the child would have had if the marriage had not ended, tax consequences, non-monetary contributions of the parents toward the child, the educational needs of the parents, the disparity in the parents' incomes, the needs of other nonparty children receiving support from one of the parents, extraordinary expenses incurred in exercising visitation and any other factors the court determines are relevant." id. at 649.
The Court of Appeals has held that when "there was sufficient record indication that no extraordinary circumstances were present," application of statutory child support percentage of combined parental income exceeding the statutory cap was justified and not an abuse of discretion (Cassano, 85 NY2d at 655). The Appellate Division, Second Department has held that the requirements of Cassano were satisfied when the Court set forth in detail that "based upon the standard of living the children would have enjoyed if the parties remained together" the formula set forth in the Child Support Standards Act was to apply to parental income in excess of the statutory cap (Kennedy v. Kennedy, 62 AD3d 755, 757 880 N.Y.S.2d 97 [2 Dept., 2009]).
Here, the Court finds that it is appropriate to award pendente lite basic child support in excess of the $143,000.00 cap, under Cassano, based upon the financial resources of the custodial and non-custodial parent, the standard of living the children would have enjoyed had the marriage not been dissolved, the tax consequences of the parties, the non-monetary contributions that the parents will make toward the care and well-being of the children and the determination that the gross income of the defendant is vastly less than that of the plaintiff.
If a child's lifestyle may be maintained by the support provided pendente lite, a similar award may be made, and the "cap" adjusted to meet that level of support (see Lago v. Adrion, 93 AD3d 697, 699, 940 N.Y.S.2d 287[2d Dept., 2012]). Based on the clear standard of living and lifestyle that both parties reveal by the expenses they incur and established during the marriage, as reflected in both parties' submissions and affidavits of net worth, earnings, and assets of the parties, the Court uses its discretion to [*25]utilize a combined income cap above the statutory limit of $143,000 to that of $250,000.[FN39]
In reaching this conclusion, the Court has considered the expenses reported in their supporting affidavits and sworn statements of net worth. The plaintiff reports annual expenses totaling $375,396 on his affidavit of net worth dated April 5, 2016 and the defendant reports annual expenses totaling $392,508 on her affidavit of net worth dated April 5, 2016. The parties' reported income of $325,383 on their joint 2015 federal tax return. The Court notes that the parties' reported expenses are often within $10.00 of one another with the primary discrepancy being the plaintiff's objection to a total of $461.00 of the itemized household expenses listed by defendant. At this time, the expenses detailed by defendant as to household expenses do not appear unreasonable. In making this award the Court is also mindful of the parties' pro rata financial obligation for private school tuition for the parties' two (2) children.
In considering their self-reported expenses and their lifestyle the cap of $143,000.00 would not provide a sufficient basis to the support these children (see Peddycoart v. MacKay, 145 AD3d 1081, 45 N.Y.S.3d 135 [2d Dept., 2016]).
The calculation is as follows: utilizing combined income above the statutory cap = $250,000.00 x .25[2 children] = $62,500 total basic child support annually. Plaintiff's pro rata share = 79.04% or $49,400 annually ($4,116.66 monthly) and defendant's pro rata share = 20.96% or $13,100 annually ($1,091.66 monthly). Commencing on the 15th day of April 2017 and continuing on the 15th day of each month thereafter plaintiff shall pay basic child support to defendant in the sum of $4,116.66 monthly until final resolution or further Court order.
All unreimbursed medical, dental, optical, theraputic and prescription drug expenses incurred for the parties' children, including all deductibles and co-payments shall be apportioned at the rate of 79.04% to be paid by the plaintiff and 20.96% to be paid by the defendant subject to reallocation at the time of trial. The parties shall be financially responsible for their pro rata share of the children's private school tuition, school lunches, school bus transportation, summer camp, tutoring, and all reasonable after-school and extracurricular activities in keeping with the status quo or agreed to by the parties in writing subject to reallocation at the time of trial.
It is clear to the Court that during the marriage the children enjoyed an affluent standard of living. The children attend private schools and are extensively involved in competitive wrestling which included extensive travel several times a week to private coaching both in Long Island and New Jersey. It in undisputed that the children enjoyed numerous vacations and such recreational activities as fishing trips and access to a yacht.
Plaintiff's suggestion that defendant should provide for the children based solely on her reported 2015 income of less than $20,000 suggests a litigation tactic designed by [*26]plaintiff exerting financial control over defendant's ability to provide the children with the pre-commencement standard of living when she has parenting time with them. Here, the children are both in high school and the parents have stipulated to a temporary shared parenting time agreement by written stipulation dated November 21, 2016; however, they have not resolved the issues of custody and parenting time. The Court previously appointed an attorney for the children.[FN40]
Plaintiff proffered novel theories regarding child support. The Court will not permit either parent to use financial control as a method to attempt to influence the children's custodial arrangement preferences. The parties are cautioned that the Court will not condone the use of custody and parenting time to wrangle a financial advantage in the award of child support. As such, under the facts and circumstances presented here, this Court resoundingly rejects plaintiff's argument that defendant should remove the parties' teenage sons from the separate bedrooms they have enjoyed for many years and relocate the children to a shared bedroom. Certainly, many families during divorce proceedings experience varying degrees — sometimes extreme — of financial strain and must make difficult "belt tightening" decisions to make ends meet because of the lack of financial assets available to them. Here, the parties enjoyed an extremely comfortable lifestyle during the marriage, including as plaintiff asserts, access to a 33' recreational fishing vessel. Even if the Court credits plaintiff's assertion that the fishing vessel is a "boat" and not a "yacht" the record is abundantly clear that given the financial facts in this case and the assets available to the parties, the plaintiff's suggestion that it would be maintaining the "status quo" to require the defendant to move the children out of their separate bedrooms into a shared bedroom during her parenting time with them is disingenuous at best. The Court rejects plaintiff's argument as it would place an entirely unnecessary onus on defendant to displace the children from the living situation the parties established during the marriage.
Based on the facts presented here this Court shall award pendente lite child support based on the pre-commencement standard of living the child would have enjoyed had the marriage continued and the children's current needs. The parties' lifestyle during the marriage, together with plaintiff's assertions that he was the sole financial support of the family, the parties' amassing of extensive marital assets including a marital residence, two (2) four-unit dwelling investment properties, a yacht and multiple automobiles all without any indication from plaintiff that the monthly expenses associated with the parties' lifestyle are being paid late or that the parties were, in effect "living on debt" by producing evidence of any acquired debt are incongruous with his assertions that he should not be required to provide financial support for the parties' children when they are in the defendant's care. The Court absolutely and categorically rejects plaintiff's argument that a pendente lite award of child support will discourage defendant from [*27]settling this case. This theory articulated by plaintiff is based upon a tactic long ago discredited by Courts in the State of New York of attempting to "pressure" a non-monied spouse in a matrimonial action into settlement and is inapposite to the Child Support Standards Act and controlling case law.
Defendant raised pointed questions about the inclusiveness and accuracy of the monthly expenses listed by plaintiff. Defendant notes that the monthly cash "allowance" that plaintiff claims he provides to her of $800 is not listed as part of plaintiff's monthly expenses. Additionally, defendant notes that plaintiff does not itnclude any expenses for dining-out/in or associated with the parties' vessel on his affidavit of net worth. It is certainly plausible that there would be costs associated with maintaining a vessel such as slip/docking fees, monthly maintenance/repairs, insurance/licensing fees and fuel costs none of which are included in plaintiff's affidavit of net worth. At oral argument plaintiff's counsel asserted that plaintiff "has a boat" but argued that it is "not a yacht." Even not accounting for these "missing" expenses the Court notes that the annual expenses listed by the parties is more than the parties' reported income.
In determining this award of pendente lite child support, this Court considered the defendant's current income in the sum of $19,461 annually (no FICA, Social Security and/or Medicare are reduced because no proof of such payments were provided) and the pre-commencement standard of living the children would have enjoyed had the marriage continued and finds that the needs of the children require that the plaintiff pay the sum of $4,116.66 monthly as and for pendente lite child support. Commencing on the 1st day of May 2017, and continuing on the 1st day of each month thereafter, the plaintiff shall pay the sum of $4,116.66 monthly to the defendant as and for pendente lite child support. Plaintiff's child support obligation from April 19, 2017 through April 30, 2017 is $1,624.10 ($135.34 day x 12 days = $1,624.10) and shall be due together with the basic child support payment due on May 1, 2017.
The plaintiff's combined pendente lite maintenance and child support obligation is $2,044.47 weekly ($8,177.89 monthly; $98,134.68 annually). The retroactive award is calculated from the date the defendant moved for pendente lite relief which was when she filed her order to show cause seeking pendente lite relief on November 3, 2016 to date, which totals $47,022.86 ($2,044.47/week x 23 weeks = $47,022.86).[FN41] Retroactive sums due by reason of this award shall be paid as follows: 50% shall be paid within 30 days of service of notice of entry of this decision and order and the remaining 50% shall be paid [*28]within 60 days of service of notice of entry of this decision. Plaintiff shall be entitled to a credit for any temporary maintenance or child support payments already made by check or other negotiable instrument, since November 3, 2016, the date of defendant's first application for pendente lite relief (see Domestic Relations Law § 236 [B][6][a]); see also Mosso v. Mosso, 84 AD3d 757, 924 N.Y.S.2d 394 [2 Dept.,2011]). Plaintiff is also entitled to a credit for direct payments made on defendant's behalf since November 3, 2016 (see Yunis v. Yunis, 94 NY2d 787, 699 NYS2d 702 [1999]).
An award of interim counsel fees is within the discretion of the Court (DeCabrera v. Cabrera-Rosete, 70 NY2d 879 [1987]). Pursuant to Domestic Relations Law section 237(a), which was amended as of October 12, 2010, the Court in an action for divorce:
. . . may direct the person or persons maintaining the action, to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be 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.
It has long been established that "[a]n award of an attorney's fee pursuant to Domestic Relations Law § 237(a) is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case" (Grant v Grant, 71 AD3d 634, 634-635, 895 NYS2d 827 [2d Dept 2010], quoting Gruppuso v Caridi, 66 AD3d 838, 839, 886 NYS2d 613 [2d Dept 2009], quoting Morrissey v Morrissey, 259 AD2d 472, 473, 686 NYS2d 71 [2d Dept 1999]). "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'" (Gruppuso, 66 AD3d at 839, quoting DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881, 524 NYS2d 176 [1987]). "'An 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, 405, 852 NYS2d 195 [2d Dept 2008], lv denied 10 NY3d 716, 862 NYS2d 468 [2008], quoting Grumet v Grumet, 37 AD3d 534, 536, 829 NYS2d 682 [2d Dept 2007] [citations omitted]).
It is also well-settled that "[a]n award of interim counsel fees is designed to create parity in divorce litigation by preventing a monied spouse from wearing down a nonmonied spouse on the basis of sheer financial strength" (Rosenbaum v Rosenbaum, 55 AD3d 713, 714, 866 NYS2d 234 [2d Dept 2008], citing O'Shea v O'Shea, 93 NY2d 187, [*29]193, 689 NYS2d 8 [1999]; Wald v Wald, 44 AD3d 848, 844 NYS2d 86 [2d Dept 2007]). "Such awards are 'designed to redress the economic disparity between the monied spouse and the non-monied spouse' and ensure that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet'" (Kaplan v Kaplan, 28 AD3d 523, 523, 812 NYS2d 360 [2d Dept 2006], quoting Frankel v Frankel, 2 NY3d 601, 607, 781 NYS2d 59 [2004], quoting O'Shea, 93 NY2d at 190).
Interim counsel fees are awarded to level the playing field and "'prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation'" (Gober v Gober, 282 AD2d 392, 393 [1 Dept., 2001], quoting O'Shea v O'Shea, 93 NY2d 187,193 [1999]; see also Prichep v Prichep, 52 AD3d 61, 65 [2 Dept., 2008]). Thus, interim fees are generally warranted "where there is a significant disparity in the financial circumstances of the parties" (Prichep, 52 AD3d at 65; see also DelDuca v DelDuca, 304 AD2d 610, 611 [2 Dept., 2003]; Celauro v Celauro, 257 AD2d 588, 589 [2 Dept., 1999]). "[U]nlike a final award of counsel fees, a detailed inquiry or evidentiary hearing is not required prior to the award of interim counsel fees" (Isaacs v Isaacs, 71 AD3d 951, 951 [2 Dept., 2010]; see also Prichep, 52 AD3d at 65; Singer v Singer, 16 AD3d 666, 667 [2 Dept., 2005]; Flach v Flach, 114 AD2d 929, 929 [2 Dept., 1985]). Additionally, it should be noted that the court in Prichep specifically provided that "[w]hen a party to a divorce action requests an interim award of counsel fees, as opposed to a final award, no such detailed inquiry is warranted" (52 AD3d 61, 65, 858 N.Y.S.2d 667 [2 Dept.,2008].
"The court may also consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation (see Ciampa v. Ciampa, 47 AD3d at 748, 850 N.Y.S.2d 190; Timpone v. Timpone, 28 AD3d at 646, 813 N.Y.S.2d 752; Morrissey v. Morrissey, 259 AD2d at 473, 686 N.Y.S.2d 71; Walker v. Walker, 255 AD2d 375, 376, 680 N.Y.S.2d 114)." (Prichep v. Prichep, 52 AD3d 61, supra).
In the case at bar, defendant requests that all of her counsel fees be paid by plaintiff. She requests that the Court order plaintiff to pay $66,747 for counsel fees and she seeks an award of "prospective" counsel fees in the sum of $25,000 "as a retainer against time charges and disbursements."
Plaintiff argues, in effect, that the Court should not award defendant any pendente lite counsel fees because, he alleges, she hired counsel whose hourly billing rate is double the hourly billing rate of the counsel he retained. Plaintiff contends that if the Court awards defendant counsel fees that the "playing field" will shift to defendant's favor even though he is the undisputed monied-spouse. Plaintiff represents that he has paid his counsel $10,000 in counsel fees.[FN42] At oral argument on November 21, 2016 plaintiff, who is an attorney, asserted through counsel that he has done "zero" legal work on this [*30]matrimonial action. Plaintiff also argues that the Court should not award defendant pendente lite counsel fees because defendant has made prior payment to her counsel using funds from the home equity line of credit on the marital residence which, he argues, he is paying and defendant does not dispute that this was the source of her prior counsel fee payments in connection with this action.
The billing records annexed to defendant's application for counsel fees show that defendant's counsel has been paid a total of $16,144.81 as follows: $6,004.50 on July 5, 2016; $140,31 on August 9, 2016; and $10,000 on October 14, 2016.[FN43]
Defendants's counsel affirms that as of November 2, 2016 defendant had paid $49,722 in counsel fees and that she anticipated defendant would incur another $17,025 "in connection with this motion and Plaintiff's Cross-Motion..." ($49,722 + $17,025 = $66,747). Defendant's counsel did not provide any updated billing records in her subsequent affidavits filed in connection with motion sequence #1 or #2 nor did defendant's counsel provided up-to-date billing records at the time of oral argument on November 21, 2016 to show the counsel fees actually incurred by defendant in connection with motion sequence #1 and/or #2 so the Court has no record before it to ascertain whether the $17,025 in "anticipated" counsel fees was supported by the billing records. As such, the Court will, at this time, only consider the defendant's outstanding balance due and owing in the sum of $49,722, which is supported by billing records annexed to her application, and her request for $25,000 in prospective counsel fees.
The Court finds that under the facts and circumstances presented here, including the nature and complexity of the issues raised, the parties' income and assets and liabilities, as sworn to in their respective Affidavits of Net Worth, the retainer agreements, the qualifications of defendant's counsel and the updated billing statements for legal services rendered in connection with this litigation and the fact that plaintiff is clearly the monied spouse as contemplated by DRL §237(a) that an award of pendente lite counsel fees in the sum of $65,000 is just and appropriate. The Court specifically rejects plaintiff's antiquated theory that any counsel fee award to defendant should be limited so that she has "skin in the game" despite the fact that plaintiff argues that he paid nearly all of the parties' expenses during the marriage earning well over $200,000 annually and defendant has, primarily, supported the family as a home-maker and earned less than $20,000 in 2015 as a part-time real estate agent.
This award of $65,000 to the defendant-wife for pendente lite attorney's fees is without prejudice to future applications for additional counsel fees, as necessary at the time of trial or sooner, upon the requisite showing (see DRL § 237; Prichep v. Prichep, 52 AD3d 61, 858 N.Y.S.2d 667 [2nd Dept.2008]; Kesten v. Kesten, 234 AD2d 427, 650 [*31]N.Y.S.2d 807 [2nd Dept.1996]; Dodson, 46 AD3d at 305; Jorgensen v Jorgensen, 86 AD2d 861, 861 [2 Dept.,1982]).
The Court believes that, pursuant to the dictates of Prichep (supra.), to require a more detailed inquiry would defeat the purpose of a pendente lite counsel fee award and serve as an obstacle to the non-monied spouse obtaining and maintaining competent counsel. The Court does not adopt plaintiff's novel theory that defendant should be precluded from an award of pendente lite counsel fees on the basis that she retained counsel who charges a higher hourly billing rate than the counsel he retained: this argument is not consistent with the statute or with the case law. Plaintiff cannot control the flow of this litigation by restricting defendant's choice of counsel to those who charge a comparable billing rate to the counsel he selected for himself. The Court notes that defendant, unlike plaintiff, is not an attorney by training and, as such, she may require more hours of legal services in navigating the legal process. Any prior counsel fee payments made by the parties from funds drawn from the home equity line of credit can be reallocated as part of a final settlement or determination of the Court after trial.
The payment in this award of pendente lite counsel fees of $65,000 shall be made directly from the defendant to the plaintiff's counsel within thirty (30) days of service of notice of entry of this decision and order. If the plaintiff fails to make the payment in compliance with this decision and order the defendant's attorney may enter a judgment for the full amount due and owing, plus statutory interest, with the Clerk of the Court upon ten (10) days written notice by certified and regular mail to the defendant and without further application to this Court.
Motion sequence #1 is granted to the extent detailed herein.
Motion sequence #2 is denied to the extent detailed herein.
This shall constitute the decision and order of the Court.