Joseph M.,
Plaintiff,
against
Lauren J., Defendant.
|
304603/2013
For the Plaintiff
Dobrish Michaels Gross LLP
By Allison Berecz, Esq.
757 Third Avenue, 15th Floor
New York, NY 10017
Tel: (212) 532-4000
For the Defendant
Bruce A. Burns, Esq.
30 Glenn Street, Suite 105
White Plains, NY 10603
Tel: (914) 397-1130
Matthew F. Cooper, J.
In this matrimonial action, defendant-wife seeks temporary custody of the parties'
child, as well as an order awarding her pendente lite maintenance, child support,
and counsel fees. Plaintiff-husband cross-moves for temporary custody of the child and
opposes the other branches of plaintiff's motion. As will be explained, the custody
applications are premature. The financial issues, however, are ripe for determination,
with temporary maintenance, and to a lesser extent temporary child support, requiring
extended discussion. In many ways, this case highlights the tension that exists when
imposing a statutorily prescribed formula for awarding temporary maintenance on a
determination that has traditionally been left to the sound discretion of a court.
Background
The parties were married in 1997 and have one child, a daughter, born in
2009. The couple separated eight months after the child's birth when, in May 2010,
defendant left the marital residence in Yonkers to live with a man with whom she had
been involved since before the pregnancy. Defendant continued to reside with this man
and was largely supported by him for almost four years. It appears that they recently
stopped living together because their church objected to them continuing to cohabit
while she was still married to plaintiff. As a result, defendant has been living for the last
few months in a hostel in upper Manhattan.
Plaintiff immigrated to the United States from Ireland in 1984 and began
working as a handyman. He is currently a property manager of an office building in
midtown Manhattan, earning, according to his most recently filed tax return, an annual
salary of $150,880. Plaintiff continues to reside in the marital residence in Yonkers, and
has voluntarily paid defendant $650 per month in support since their separation.
According to plaintiff, the $650 is intended to be used by defendant for the child's needs
when the child is with her.
Defendant has a Bachelor's degree from the University of Manchester, in
England. During the marriage, from 1999-2005, she worked at Willner Chemists, a
nutrition-focused pharmacy in Manhattan. Among other things, defendant has an
ongoing interest in nutrition and holistic alternatives to Western medicine. To that end,
she earned a Master's degree in Human Nutrition from the University of Bridgeport in
2003, while continuing to work full time. She stopped working in 2005, gave birth to the
parties' child in 2009, and never resumed employment. In the years leading up to her
separation from plaintiff, defendant became increasingly involved with her church and
began dedicating more and more time to anti-abortion activities. It was through the
church and its activities that she became involved with the man with whom she had been
living.
Since the parties' separation, they have agreed upon and followed a
temporary parenting arrangement. Specifically, defendant picks up the child from
plaintiff at Grand Central Station on Monday morning and returns her to plaintiff on
Thursday. She also has one weekend with the child each month.
Although the parties separated in 2010, plaintiff did not commence this
action for divorce until 2013. Defendant did not file her pendente lite motion
until July 15, 2014, over four years after she left the marital residence.
Temporary Custody
Defendant moves, and plaintiff cross-moves, for temporary custody of the child.
Custody is an ultimate issue to be determined after a full trial, and often after having
engaged a forensic evaluator to report on any issues that might affect the parties'
capacities for parenting and appointing an attorney to represent the child's interests. A
determination of custody on a temporary basis shall only be made when there are exigent
circumstances (Acquard v Acquard, 244 AD2d 1010, 1010 [4th Dept 1997]).
No exigent circumstances are present here. Although plaintiff expresses
concern about a number things which he believes negatively affect the child — in
particular, defendant's current living arrangements, her travel schedule and her
attendance with the child at anti-abortion protests at Planned Parenthood locations
— the parties have nevertheless created a schedule that has functioned relatively
well to this point. Moreover, any allegations that the parties make against each other are
not of such magnitude to necessitate an immediate change in the current parenting
arrangement. Accordingly, the branch of defendant's motion seeking temporary custody
and plaintiff's cross-motion seeking same are both denied without prejudice.
Temporary Child Support
Defendant seeks temporary child support in the amount of $2,019 per month.
The law is clear, at least in the First Department, that a non-custodial parent is not
entitled to receive child support from a custodial parent, irrespective of the financial
positions of the parties. Specifically, DRL § 240(1—b)(f)(10) states: "the
court shall order the non-custodial parent to pay [*2]his
or her pro-rata share of the basic child support obligation." The First Department has
held in no uncertain terms that although the result may seem unfair and the effect less
than desirable on a child who spends substantial time in two households where the
financial resources differ radically, the statute's directive limits a court to awarding
support only to the parent who is deemed to be the custodial parent. As the court stated:
"We conclude that based on the plain language of the Child Support Standards Act, its
legislative history, and its interpretation by the Court of Appeals, a custodial parent who
has the child a majority of the time cannot be directed to pay child support to a
non-custodial parent (Rubin v
Della Salla, 107 AD3d 60, 62 [1st Dept 2013])."
As discussed above, neither party can be said to have legal custody of the
child inasmuch as a custody determination may only be made following a full trial. Thus,
in accordance with Rubin v Della Salla, and for the purposes of determining
temporary child support, the "custodial parent" must be deemed to be that parent who has
the child "the majority of the time." According to defendant's affidavit, the schedule is as
follows:
Weekdays, [the child] spends all five days with me and three nights. . . . I
also have [the child] with me one weekend each month, and sometimes an additional
weekend. The other two nights during the week [the child] is with the Plaintiff. The way
this works is that each Monday morning, when Plaintiff has [the child] for the weekend, I
go to Grand Central Station to meet Plaintiff and [the child] when they arrive from
Yonkers at 8:00 a.m., on Plaintiff's way to work. Then in the evening, on nights when
Plaintiff is to have [the child], I bring [the child] to Grand Central, to meet Plaintiff for
the ride to Yonkers. This morning and evening routine repeats for each night [the child]
is with Plaintiff.
(Defendant's Order to Show Cause, at 5-6). Based on this schedule,
defendant contends she is the custodial parent and entitled to child support.
In Rubin v Della Salla, in which the parties disputed who had the majority of
the time with the child, the First Department held that overnights, not "waking hours,"
dictate which parent has more time for purposes of determining the custodial and
non-custodial parent (107 AD3d at 69-70). Additionally, because the schedule in that
case changed significantly during the summer months, the court looked at the two
previous years and determined how many overnights each parent had.
Here, although the parties' parenting time under the schedule described by defendant
is nearly equal, plaintiff had 184 overnights in 2013 compared to defendant's 181. In
2012, a leap year, plaintiff had 185 and defendant had 181. Of course, this calculation
does not account for holidays, vacations and unused parenting time. Indeed, plaintiff
alleges that defendant has taken "dozens upon dozens of trips," and the chart he annexes
to his papers demonstrates that she has traveled 46 times in the last 34 months, many on
days she would have otherwise been with the child.
Based solely on the actual amount of overnights that the child spends with each
party, it must be concluded, pursuant to the holding in Rubin, that plaintiff is the
custodial parent and defendant is the non-custodial parent for the purposes of
determining child support on a pendente lite basis. Accordingly, defendant's
request for temporary child support must be denied.
[*3]Temporary Maintenance
In 2010, the New York State legislature amended the Domestic Relations
Law to create a rigid formulaic approach to calculating temporary maintenance. Pursuant
to DRL § 236B(5-a), courts must arrive at a presumptive award of temporary
maintenance by first determining the parties' incomes based on the parties' most recently
filed tax returns and in accordance with the definition of income set forth in the Child
Support Standards Act (see DRL § 240[1-b][b][5]). After this determination
is made, the court must then perform a series of calculations using those figures. The
final number that is derived through this process is the presumptive award. Deviation
from the presumptive award, whereby a court orders the higher-income spouse to pay the
lower-income spouse a greater or lesser amount, must be done according to a series of
factors, and only in a written decision.
Using this prescribed method — which requires making deductions
from the gross income for FICA and local taxes — the court finds that, for the
purposes of calculating temporary maintenance, plaintiff's income is $140,237 and
defendant's income is $0. As such, plaintiff is deemed the "payor" spouse, and defendant
is deemed the "payee" spouse. Thus, in accordance with DRL § 236B(5-a)(c)(1), the
presumptive award of temporary maintenance is calculated as follows:
(a) ($140,237 x .30) = $42,071
- ($0 x .20) = $0
$42,071 (or $3,506/mo.)
(b) $140,237 + $0 = $140,237
x .40
$56,095
- $0
$56,095 ($4,675/mo.)
Defendant, as the payee spouse, is presumptively entitled to the lower of the
figures calculated in subsections (a) and (b) (DRL § 236B[5-a][c][1][d]), or $3,506
per month.
The application of the formula significantly erodes the well-settled principle
that the "determination of maintenance is within the sound discretion of Supreme Court
upon consideration of the relevant factors enumerated in Domestic Relations Law §
236B(6)(a) and the parties' pre-divorce standard of living" (Alexander v Alexander, 116
AD3d 472, 473 [1st Dept 2014]). Nevertheless, the statute does not entirely divest a
court of the ability to fashion an award of temporary maintenance that differs from the
presumptive award. The court may deviate from the presumptive award if it determines
that the amount is unjust or inappropriate after having considered 17 factors specified in
DRL § 236B(5-a)(e)(1). Although the factors appear to have been drafted with an
eye towards permitting an upward deviation — i.e., awarding the payee spouse
more than the presumptive amount — they must still be read as permitting a
downward deviation as well. Whether the deviation is upwards or downwards, the court
must restrict its analysis to the statutorily enumerated factors and explain its reason for
deviating in a written decision (see Khaira v Khaira, 93 AD3d 194, 197-198 [1st Dept
2012]).
In this case, two of the statutory factors listed under DRL §
236B(5-a)(e)(1) are especially relevant and require the court's consideration. The first is
DRL § 236B(5-a)(e)(1)(c), "the earning capacity of the parties." Specifically, in the
more than four years since defendant [*4]has left the
marital home, she has made absolutely no attempt to re-enter the workforce. Instead, she
has proclaimed that it is her choice to do volunteer work rather than earn an income. In
an e-mail sent to plaintiff on November 7, 2013, and attached to his papers as Exhibit B,
defendant writes:
My life's mission is to teach people about health and nutrition — as a
volunteer at the Oratory or other Christian centers. I have scaled that down while [the
child] is very young, but eventually I will see more people one-on-one and teach more
groups on a pro bono basis. . . . I think that to put a price on people's illness is wrong
when I was healed for free. I cannot ignore the fact that I did receive a miracle from
Jesus and [the child] is the result of that miracle. Thus I have to help others as much as I
can for their benefit only and not to get money out of their suffering.
Moreover, rather than teaching people about health and nutrition on an
unpaid basis while seeking employment elsewhere, defendant spends her days, including
many of her days with the child, outside of a Planned Parenthood health clinic, praying
for patients and attempting to convince them not to obtain abortions. Attached as exhibits
to plaintiff's cross-motion are a series of emails from defendant to plaintiff in which
defendant details these activities. One email reads: "Is there any way u could bring [the
child] downtown on 6 train to Bleecker st? I'm trying to intercept a girl who we turned
around at Planned Parenthood a week ago but may be coming back for abortion" [Exhibit
J]. Another states: "[The child] and I went to Planned Parenthood for 40 minutes this
morning. Not so busy (about 9am to 9.45am), but it was worth it because one of the PP
women (regular employee who eventually put on a pink bib) looked totally infuriated that
we were there; we were laughing and smiling and singing! I may go to PP late tomorrow
morning" [Exhibit J]. A third reads: "Amazing morning as we went to Planned
Parenthood and talked to a girl on her way in — we invited her to come and talk to
the Sisters of Life and she agreed, so we went by subway with her to their house on east
71st st. So it looks like she is keeping her baby. [The child] is known as the youngest
sidewalk counselor! That is the second life she has helped save!" [Exhibit K].
Defendant, of course, is free to dedicate herself to whatever causes she
wishes so long as she does not involve the child over plaintiff's reasonable objections or
if such involvement is not otherwise contrary to the child's best interests. But by
dedicating herself to church and anti-abortion related activities, while at the same time
demanding that plaintiff support her, defendant is in effect seeking to have plaintiff
subsidize those activities. Moreover, she is purposefully reducing her ability to be
self-supporting, or at least to contribute towards her own support, by choosing not to take
payment for health and nutrition services she provides, and by spending her days
protesting outside of Planned Parenthood rather than obtaining or seeking to obtain
meaningful employment (see also DRL § 236B[5-a][e][1][k]["the inability
of one party to obtain meaningful employment due to age or absence from the
workforce"]).
The other relevant factor here is DRL § 236B(5-a)(e)(1)(g), the "the
existence and duration of a pre-marital joint household or a pre-divorce separate
household." For the past four years defendant lived with and was supported by another
man. Because of this relationship, she was able to live comfortably in an upscale
neighborhood in Manhattan. She traveled extensively across the country and abroad,
admitting that "[f]or the most part my travel has been paid for by the man I have been
with" (Defendant's Reply at 3). It is only now, after she is no longer living with the other
man and, presumably, no longer being supported by him, that she looks to plaintiff to
make up for the shortfall occasioned by the disruption of her "pre-divorce separate [*5]household."
Taking into consideration the relevant statutory factors, the court finds ample
reason to downwardly deviate from the presumptive award of $3,506 per month.
However, laudable the purpose of the temporary maintenance guideline may be in theory
— to bring consistency and predictability to the process — it cannot and
should not be used to impose an obligation that is unjust and inappropriate. That indeed
would be the result if plaintiff, who is by no means wealthy and is the parent solely
responsible for the financial support of the parties' young child, were required to pay the
presumptive award to defendant. Under the circumstance presented here, where the
parties have been separated for an extended period of time and where the payee spouse
relied on a new relationship for her support rather than taking steps to become
self-supporting, it is highly doubtful that the court, "in its sound discretion," would see fit
to make a significant final maintenance award. The result should not be any different
simply because plaintiff and defendant are still married and it is temporary maintenance,
rather than final maintenance, that is at issue.
Having found that it is just and appropriate to deviate downwards from the
presumptive award, the court must then determine what lesser amount, if any, plaintiff
should be required to pay for temporary maintenance. Bearing in mind that the overriding
purpose of temporary maintenance is "to maintain the status of the parties as far as can be
accurately ascertained" (Meyer v Meyer, 229 AD2d 354, 355 [1st Dept 1996]),
the court concludes that, as plaintiff's temporary maintenance obligation, he must
continue to pay defendant the $650 he has been voluntarily paying.
Interim Counsel Fees
Finally, the mother moves for $7,500 in interim counsel fees. There is a
rebuttable presumption in matrimonial actions that counsel fees shall be awarded to the
non-monied spouse (DRL § 237), reflecting the strong policy concern of "leveling
the playing field" to ensure that "marital litigation is shaped not by the power of the
bankroll but by the power of the evidence" (Charpie v Charpie, 271 AD2d 169,
170 [1st Dept 2000]). Thus, it is especially important to award counsel fees for the
non-monied spouse when there is a substantial discrepancy between the incomes of the
parties. However, this presumption does not mean that plaintiff, the monied spouse, must
pay for all the fees defendant accrues. "In exercising its discretionary power to award
counsel fees, a 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, 881 [1987]).
Accordingly, given the financial positions of the parties and the issues in the case,
defendant is awarded $5,000 in interim counsel fees.
Conclusion
In accordance with this decision, plaintiff's motion is granted solely to the
extent that plaintiff is ordered to continue to pay defendant the sum of $650 per month as
and for temporary maintenance, with the payment to be made on the first day of each
month, and to pay defendant's counsel the sum of $5,000 as and for interim counsel fees,
with the payment to be made on or before December 22, 2014. Both parties' applications
for temporary custody are denied without prejudice. All other relief sought in both the
motion and cross-motion but not specifically addressed herein, has been carefully
considered and is deemed without merit.
This constitutes the decision and order of the court.
Dated:October 22, 2014
HON. MATTHEW F. COOPER, J.S.C.