Supreme Court, Nassau County, November 28, 2023

Megan E. Woolley, Jericho, for plaintiff.

Simonetti & Associates, Westbury, for defendant.

Melissa Studin Young, Attorney for the Children.

While the plaintiff's application seeks, among other things, omnibus pendente lite relief, the principal issue raised on these motions is whether or not the euthanasia of a family companion animal during the pendency of a matrimonial action is violative of the automatic orders. There [*2]can be no doubt that the loss of a family pet or companion animal can be devastating. But the principal question before the court is a narrow one. The court concludes, after examining the text of the automatic orders, reviewing the legislative history and underlying purpose of the enactment of automatic orders, considering the evolution of case law with respect to companion animals and the legislative history behind Domestic Relations Law § 236 (B) (5) (d) (15), and reviewing the purpose of the defendant's application, that the euthanasia of a companion animal without the consent of the other party is not violative of the automatic orders in a matrimonial action. While the defendant may have other remedies at law—both civilly and criminally—the narrow and drastic remedy of contempt of court the defendant seeks here is not one of them.

The plaintiff moves by order to show cause dated August 9, 2023 (mot seq No. 001), seeking an order: (a) granting plaintiff custody of the two children of the marriage, A.M. (DOB XX/XX/2012) and J.M. (DOB XX/XX/2008); (b) granting plaintiff and{**82 Misc 3d at 200} the two children of the marriage exclusive use and occupancy of the marital residence; (c) consolidating the pending Nassau County order of protection proceeding docket O-xxxx-23, file xxxx before Hon. Darlene Harris with the within action; (d) appointing Edward Emanuel, Esq., as Attorney for the Children and directing defendant to pay the Attorney for the Children's counsel fees, subject to reallocation at trial; (e) directing the defendant to pay 50% of the uncovered or advanced payment health care, dental, optical, psychological and pharmaceutical expenses incurred on behalf of the unemancipated children of the marriage; (f) directing the defendant to pay 50% of summer camp and extracurricular activity expenses for the unemancipated children of the marriage; (g) directing the defendant to pay 50% of the monthly mortgage, taxes and real property insurance and necessary repairs for the marital residence located at XX, Glen Head, New York; (h) directing the defendant to pay 50% of the monthly marital consolidated credit card loan with Crossroads Financial Technologies Finxera, Inc.; (i) directing the defendant to pay all expenses associated with the 2022 Ford F-150 vehicle operated by defendant (including but not limited to loan, maintenance, registration, gas and insurance); (j) directing the defendant to pay the plaintiff pendente lite child support in the amount of $1,700.00 per month for the two children of the marriage if defendant is ordered to contribute to the marital mortgage; or in the alternative, pendente lite child support in the amount of $2,706.37 per month for the two children of the marriage if plaintiff is solely responsible for the marital mortgage; (k) awarding to plaintiff an interim award of counsel fees in the sum of $10,000.00, with leave to apply to the court for additional fees, if warranted, pursuant to Domestic Relations Law § 237; and (l) for such other and further relief as this court deems reasonable and proper under the circumstances.

The defendant cross-moves by order to show cause in the nature of a cross-motion for contempt and in opposition to the plaintiff's order to show cause dated September 21, 2023 (mot seq No. 002), for an order: (1) adjudging the plaintiff in contempt of court for violating the automatic orders of the court by unilaterally destroying a valuable marital asset without knowledge or consent of the defendant or court; (2) fining plaintiff, C.M., for such contempt; (3) modifying the parties' order of protection, filed under O-xxxx-23, file xxxx [*3]entered on May 22, 2023, consolidated with this court, so as to grant defendant,{**82 Misc 3d at 201} E.M., unsupervised visitation with his children on alternating weekends and two midweek visits after school, as a carve-out for the order of protection granted against him; (4) granting to the defendant's counsel, Simonetti & Associates, an award of counsel fees in the sum of $5,000.00, plus additional sums as may accrue during the pendency of this action for additional services rendered in connection with the within application; (5) dismissing, in all respects, the relief sought in the plaintiff's application herein brought by order to show cause on August 11, 2023; (6) denying, in all respects, the relief sought in the plaintiff's application herein brought by order to show cause on August 11, 2023; and (7) together with such other and further relief as to this court may seem just, proper and equitable under the circumstances.

The parties were married on xxxx xx, 2002. The parties have two children in common, to wit: J., born xxxx 2008 and A., born xxxx 2012. This action was commenced by the filing of a summons with notice with the Nassau County Clerk's Office on or about May 31, 2023. On August 10, 2023, the plaintiff filed an order to show cause seeking, among other things, omnibus pendente lite relief with a request for certain interim relief. This court heard that application on August 11, 2023, when it signed the order to show cause and issued the following temporary orders:

"ORDERED, that Plaintiff shall have sole medical decision making with respect to the child, J.M. (DOB xx/xx/2008) and the surgery scheduled for Monday for J.'s tonsils, adnoids and tubes, and any emergencies relating thereto, which the Plaintiff shall keep the Defendant fully informed with respect thereto; and it is further

"ORDERED, that Plaintiff and the two (2) children of the marriage have interim exclusive use and occupancy of the marital residence; and it is further

"ORDERED, that the Nassau County Family Court case, Docket O-xxxx-23 File xxxx, before Hon. Darlene Harris is hereby consolidated with the within action by separate Order issued simultaneously herewith; and it is further

"ORDERED, that an Attorney for the Children shall be appointed by separate Order issued simultaneously herewith; and it is further{**82 Misc 3d at 202}

"ORDERED, that the parties shall equally share the attorney for the children's fees subject to reallocation at trial; and it is further

"ORDERED, that Defendant to pay the Plaintiff interim basic child support in the amount of Two Thousand Seven Hundred Six & 37/100 ($2,706.37) dollars per month for the two (2) children of the marriage commencing on the first day of the first full month following the execution herein."

On August 11, 2023, this court issued an order appointing attorney for the children whereby it appointed Melissa S. Young, Esq., as attorney for the children (hereinafter referred to as the AFC). The parties and counsel and the AFC appeared before this court for a preliminary conference on August 16, 2023, when the parties executed, and this court so ordered, the preliminary conference stipulation and order. On October 2, 2023, this court issued a short form order, on consent, that the proceedings pending in the Nassau County Family Court under docket No. O-xxxx-23 be transferred to this court and consolidated into the within [*4]matrimonial action. A temporary order of protection was thereupon issued by this court.

Plaintiff's Contentions:

The plaintiff argues that she lives in the marital residence XX, Glen Head, New York (hereinafter referred to as the Glen Head residence) with the children and the defendant voluntarily vacated same in May 11, 2023, to live in Brooklyn with a significant other. The plaintiff argues that this vacatur was one week before the defendant assaulted the parties' 10-year-old child. The plaintiff sets forth that she earned $140,347.82 in 2022 from her employment as a school teacher and took extra work at a summer camp and earned an additional $2,734.23. The plaintiff argues that the defendant earned $140,666.59 in 2022 from employment as a teacher and earned an additional $9,000 from private tutoring. The plaintiff argues that on May 19, 2023, the defendant pinned A. under the defendant's body and slapped A.'s face so hard resulting in a bruise and red marking. The plaintiff argues that this incident was observed by J. The plaintiff argues that the defendant has not had contact with the children since May 19, 2023, and the defendant has not requested parenting time. The plaintiff argues that J. was to have surgery on August 14, 2023, the defendant{**82 Misc 3d at 203} found the surgeon, a surgery was scheduled, but the defendant then, in effect, withdrew his consent to the surgery. The plaintiff sets forth that both children are in therapy and attend weekly counseling sessions, and that both providers concur about the need for therapeutic intervention to repair the children's relationship with the defendant. The plaintiff argues that the defendant has stopped contributing to marital expenses and is not servicing the parties' marital debt. The plaintiff argues that there are various utilities at risk for "shut off," and the parties, in 2023, consolidated marital credit card debt of $60,853.80. The plaintiff argues that the defendant stopped paying the mortgage on the marital home in October 2022, and that there are now $65,250 in mortgage arrears and fees, but that she signed refinance documents and delivered them to the defendant's counsel for signature.

Defendant's Opposition:

The defendant argues that the plaintiff vindictively violated the automatic order by putting their beloved family pet, B., to death without reason, necessity or justification. The defendant argues that B. was an emotional support dog whose custody had not been determined. The defendant argues that the plaintiff did not discuss B.'s medical condition nor provide the opportunity for the defendant to spend time with B. before the dog's death. The defendant argues that he is suffering extreme emotional distress because of B.'s death. The defendant seeks compensation for this loss in the amount of $1,500 as punitive damages. The defendant argues that there was no denial of access of surgery for J., but the defendant was simply asking for the doctor's information to confirm the appropriateness of same, and the plaintiff unilaterally scheduled the surgery without the defendant's consent. The defendant seeks a carve-out to allow parental access with the children. The defendant seeks a reduction in the temporary order of support, as the pay structure from employment results in no checks being issued over the summer months. The defendant also sets forth that because of the removal from the Glen Head residence, money has now been incurred for rental and living expenses.

Plaintiff's Opposition and Reply:

The plaintiff argues that the defendant does not deny having earned $140,666.59 from teaching and $9,000 from tutoring in 2022. The plaintiff argues that as of the date of her [*5]opposition and reply, the defendant has not paid any child support. The plaintiff argues that since the issuance of the temporary order,{**82 Misc 3d at 204} the utilities and mortgage remain delinquent. The plaintiff argues that the defendant does not deny consolidating marital credit card debt, but the actual amount of same is $179,247.00 with a monthly payment of $2,197.50, and the defendant does not deny failing to contribute thereto. The plaintiff argues that the defendant's physical assault of A. justified her obtaining the temporary order of protection from the Family Court, that the defendant does not deny having vacated the Glen Head residence, and, critically, the defendant does not deny the assault on A. on May 19, 2023. The plaintiff argues that the children remain in fear of spending time alone with the defendant, and the defendant, in May of 2023, threatened suicide and was taken to Glen Cove Hospital. The plaintiff argues that her application was necessary because of the defendant's refusal to pay support, the defendant's threat to interfere with J.'s surgery, and the defendant's refusal to contribute to marital debt. The plaintiff argues that after the temporary order of protection was issued, the defendant returned to the Glen Head residence with the police and did not take the elderly dog at that time. The plaintiff argues that the dog was not an emotional support animal, could no longer walk without a severe limp, had "too many" masses to count, and was on significant pain medication since July 2023. The plaintiff argues that she was given a prescription for a tranquilizer for the dog and transported the dog to the vet, and at the vet appointment, the dog lunged at the vet. The plaintiff argues that the vet recommended euthanasia.

Defendant's Reply:

The defendant did not wish to cause the children more hardship than they were already suffering so B. was not removed from the Glen Head residence after the temporary order of protection was issued. The defendant repeats that B. was an emotional support animal, having been adopted from a shelter, and that the defendant served as B.'s sole caregiver. The defendant denies having been informed of B.'s conditions, which includes having masses, limping and being aggressive. The defendant nonetheless avers that the plaintiff had B. euthanized without the defendant's knowledge, and, in effect, without consent. The defendant argues that after the plaintiff learned of the vet's recommendation for euthanasia, the plaintiff never contacted the defendant to provide information as to what was happening. The defendant argues that there was no urgent need for B.'s euthanasia.{**82 Misc 3d at 205}

AFC's Position(s):

The AFC sets forth that the children are 15 and 11 years old, and are capable of expressing their position(s) and are of sound and reasoned judgment. The AFC sets forth that the status quo of the children is to effectively live with the plaintiff and both children are comforted with the temporary order of protection being in effect. The AFC sets forth that the children described the May 19, 2023 incident with A. and the defendant with the defendant physically restraining A. by laying on top of her body, grabbing her, and slapping her in the face, and that both children were screaming and crying.

Custody and Parenting Time

Custody

"Disputes involving custody and visitation are acknowledged to be among the most difficult the courts are called upon to resolve, for they so deeply affect the lives of children and [*6]the parents who love them." (Daghir v Daghir, 82 AD2d 191, 193 [2d Dept 1981].) It is well settled that the primary consideration in all custody disputes is the best interest of the child. (See Keating v Keating, 147 AD2d 675 [2d Dept 1989].) "[C]ourts must be vigilant to assure that children are fully protected and their best interests secured." (Matter of Newton v McFarlane, 174 AD3d 67, 76 [2d Dept 2019].) "The best interests of the child are determined by a review of the totality of the circumstances." (Matter of Paige v Paige, 202 AD3d 794, 795 [2d Dept 2022].)

It is further established that "[a]s a general rule, it is error as a matter of law to make an order respecting custody based on controverted allegations without having had the benefit of a full hearing" (see Biagi v Biagi, 124 AD2d 770, 771 [2d Dept 1986]; see also Colley v Colley, 200 AD2d 839 [3d Dept 1994]), and "[c]ustody determinations should generally be made only after a full and plenary hearing." (Palazzola v Palazzola, 188 AD3d 1081, 1082 [2d Dept 2020]; see also Trazzera v Trazzera, 199 AD3d 855 [2d Dept 2021].) "While the general right to a hearing in custody and visitation cases is not absolute, where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required." (See Palazzola v Palazzola at 1082 [internal quotation marks omitted]; see also Trazzera v Trazzera; see also Stolzenberg v Stolzenberg, 209 AD3d 688 [2d Dept 2022].) The Court of Appeals has made clear:{**82 Misc 3d at 206}

"Given the goals of stability and permanency, as well as the weight of the interests at stake, the societal cost of even an occasional error in a custody proceeding is sizeable. Custody determinations therefore require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child. The value of a plenary hearing is particularly pronounced in custody cases in light of the subjective factors—such as the credibility and sincerity of the witnesses, and the character and temperament of the parents—that are often critical to the court's determination." (S.L. v J.R., 27 NY3d 558, 563 [2016].)

However, "the general right to a hearing in custody and visitation cases is not absolute." (O'Mahoney v O'Mahoney, 206 AD3d 819, 820 [2d Dept 2022]; Chukwuemeka v Chukwuemeka, 207 AD3d 432 [2d Dept 2022]; Matter of Izquierdo v Santiago, 151 AD3d 967 [2d Dept 2017].) As the Second Department has written: "Further, the Family Court was not required to have a full hearing on permanent custody before rendering its determination on temporary custody and visitation. The court . . . possessed sufficient information to render an informed and provident temporary determination prior to the completion of a full hearing." (Matter of Donovan C., 65 AD3d 1041, 1042 [2d Dept 2009] [citation omitted].) The court additionally notes the text of Domestic Relations Law § 240 (1) (a) which provides, in part, that

"[i]n any action or proceeding brought . . . for a divorce . . . the court shall . . . enter orders for custody . . . as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties and to the best interests of the child . . . Where either party to an action concerning custody of or a right to visitation with a child alleges in a sworn petition or complaint or sworn answer, cross-petition, counterclaim or other sworn responsive pleading that the other party has committed an act of domestic violence [*7]against the party making the allegation or a family or household member of either party . . . the court must consider the effect of such domestic violence upon the best interests of the child, together with such other facts and circumstances as the court deems relevant in making a direction pursuant to{**82 Misc 3d at 207} this section and state on the record how such findings, facts and circumstances factored into the direction" (emphasis added).

This court—by statute—is required to consider any allegations of domestic violence. In furtherance of that requirement, the court has carefully reviewed the underlying affidavit of the plaintiff, which alleges, in part: "[o]n Friday, May 19, 2023, Defendant physically assaulted our ten (10) year old child, A., reportedly pinning the children under the Defendant's full body, screaming and slapping the child's face with significant force leaving a bruise on her body and a red mark on her face."

The court notes the corroborating affirmation of the AFC which alleges, in part:

"[t]hey also described to me the incident between A. and the Father which led to the Order of Protection being obtained on their behalf. Said incident involved the Father physically restraining A. by laying on top of her, grabbing her, slapping her in the face and berating her. Both children were present and were screaming and crying."

This court has carefully reviewed every page, every paragraph, every sentence and every word of the defendant's opposing affidavit and critically notes that the defendant does not deny or address these allegations. "Facts appearing in the movant's papers which the opposing party does not controvert, may be deemed to be admitted." (See generally Kuehne & Nagel v Baiden, 36 NY2d 539, 544 [1975].) The court therefore deems those allegations admitted. The defendant (a teacher and mandated reporter himself) engaged in conduct on May 19, 2023, that is, candidly, nothing short of unacceptable in every form, repugnant by its own nature, shocking, and contrary to the best interests of these children. Both children were clearly adversely affected by this conduct, whether it be A. who literally suffered a physical attack perpetuated by the defendant or J. who witnessed a physical attack on his sister by his own parent. This conduct is shocking to the conscience of the court. Not only did A. suffer in the moment from this attack (both physically and emotionally), but she suffered ripple effects therefrom with bruising and redness to her body. The defendant's conduct—which he chooses not even to address or deny (resulting in this court deeming said conduct admitted)—gives this court sufficient information to render a pendente lite custody decision without the necessity of a full plenary hearing.{**82 Misc 3d at 208} (See generally Matter of McCartha v Williams, 3 AD3d 750 [3d Dept 2004].)

Even if the defendant's conduct is a singular isolated incident, it crosses every possible line of a parent-child relationship, nor can it even be justified as corporal punishment. It also crosses the lines of sheer decency. To think that a parent would attack a child is unimaginable and unthinkable. To engage in such conduct truly gives the court a question of whether or not the defendant understands the role of a parent. While this court is ever-cognizant of the [*8]pronouncement that a custody determination "should generally be made only after a full and plenary hearing" (see Trazzera at 858; see Palazzola; see J.R.), "[t]he law does not wait upon these niceties of practice, it does not dally and dawdle, when what is at stake in the contest is the safety of its ward." (Matter of Celinette H.H. v Michelle R., 40 NY3d 1047, 1049 [2023, Rivera, J., dissenting].) On this record, the court finds that the safety of its wards must be protected. This IAS Part and the undersigned Justice will not wait on the niceties of a plenary hearing (which could take days or weeks) to protect a child or children when it has allegations of physical violence perpetuated on a child that are not denied by the alleged actor. Indeed, as this court has written, its duty runs as parens patriae to protect the well-being of children. (SG v MG, 80 Misc 3d 1222[A], 2023 NY Slip Op 51063[U] [Sup Ct, Nassau County 2023].) To do so would be to abrogate this court's responsibility to ensure the safety of the wards that come before it. Most cases which have issues of custody and/or parental access require a hearing—whether they be a plenary hearing, a court trial, or a postjudgment hearing. But even the Court of Appeals has declined to pronounce a hard-and-fast rule mandating a hearing in all instances where custody and parental access are at issue. This case is one such limited exception to the general rule.

The court has another concern: the mental health of the defendant. "It is a generally accepted principle that parties to a contested custody proceeding place their physical and mental conditions in issue." (Torelli v Torelli, 50 AD3d 1125, 1125 [2d Dept 2008]; see also Anonymous v Anonymous, 5 AD3d 516 [2d Dept 2004].) The court has carefully reviewed the text messages sent by the defendant (which he does not deny sending) in May of 2023 (the month in which this action was commenced) which read:

"Please care for me. Somebody care for me please.{**82 Misc 3d at 209} I'm hurting so bad.

"I almost killed myself last night. I need somebody now. Please. I'm begging someone to love me and have some understanding.

"I'm hurting so bad.

"I'm not ok."

"It is well settled that a court may make a temporary change in custody to protect children from immediate threat to the well-being of the children." (Matter of Maureen S. v Margaret S., 184 AD2d 159, 165 [2d Dept 1992] [internal quotation marks omitted].) Here, the court has considered the defendant's own text messages evidencing a confirmed attempt to commit suicide, coupled with the failure to deny sitting on and slapping the parties' child (see supra). Given the currently existing temporary order of protection, the defendant's failure to refute the plaintiff's allegations that the defendant physically attacked one of the children in the presence of the other, the corroboration of the AFC, and the defendant's recent attempts at suicide, the court therefore determines that an order of pendente lite sole custody to the plaintiff is warranted and necessary to protect the physical and emotional well-being of these children (see Maureen S.). As a final point, the court would be remiss if it failed to note that, instead of the defendant expressing contriteness for the conduct at issue or apologizing for same, the defendant tellingly chose to ignore the allegations. Instead of being penitent, and instead of actually addressing the conduct at issue, the defendant seeks an order of unsupervised access. On this court's watch, these children will be protected and their best interests will be served over the defendant's interests. Accordingly, it is hereby ordered that branch (a) of the plaintiff's order to show cause dated August 11, 2023, be and the same is hereby granted to the extent that the plaintiff is awarded pendente lite sole legal, physical and residential custody of the subject children, A. (born xxxx 2012) and J. (born xxxx 2008).

Parenting Time/Carve-Out to Temporary Order of Protection

As to the defendant's request for a carve-out to the temporary order of protection so as to permit him to have unsupervised parenting time, "[a] court must determine the best interests of the child when adjudicating . . . visitation issues." (Jordan v Jordan, 8 AD3d 444, 444 [2d Dept 2004].) Indeed, "[t]he natural right of visitation jointly enjoyed by the noncustodial parent and the child is more precious than any property right." {**82 Misc 3d at 210}(Matter of Ciccone v Ciccone, 74 AD3d 1337, 1338 [2d Dept 2010].)

"[I]t is presumed that parental visitation is in the best interest of the child in the absence of proof that it will be harmful." (Matter of Granger v Misercola, 21 NY3d 86, 90 [2013].) "Visitation is a joint right of the noncustodial parent and of the child." (Matter of Spampinato v Mazza, 152 AD3d 525, 526 [2d Dept 2017].) "The best interests of the child[ren] lie in his or her being nurtured and guided by both parents," and "[i]n order for the noncustodial parent to develop a meaningful, nurturing relationship with the child[ren], parental access must be frequent and regular." (Matter of Gonzalez v Santiago, 167 AD3d 887, 889 [2d Dept 2018] [alterations omitted].) "A parent's supervised visitation with a child is required only where it is shown that unsupervised visitation would be detrimental to the child." (Rosenberg v Rosenberg, 44 AD3d 1022, 1024 [2d Dept 2007].) "Supervised visitation is a matter left to the sound discretion of the court." (Matter of Edmonds v Lewis, 175 AD3d 1040, 1042 [4th Dept 2019].)

Here, the court finds many questions of fact as to whether or not unsupervised parenting time would be inimical to the welfare of these children. While the court notes that there has never been a fact-finding on the family offense petition which resulted in the issuance of the stay away portion of the temporary order of protection, it has concerns about the defendant's conduct on and in front of the children as well as his demonstrative text messages indicating suicidal ideations (see supra). The court feels that in order to make a best interests determination on what type of access the defendant should have with the children, it needs live testimony from these parties to establish each party's credibility, sincerity and demeanor. Accordingly, it is hereby ordered that branch (3) of the defendant's order to show cause dated September 21, 2023, be and the same is hereby referred to an expedited hearing.

Contempt of Court

In reaching its determination on the principal issue presented on these motions (see supra), the court has considered, among other things, the text of the automatic orders, the legislative history of the enactment of same, the intent and purpose behind such automatic orders, as well as the purpose of the defendant's instant application, the evolving case law surrounding companion animals, and the legislative history behind Domestic Relations Law § 236 (B) (5) (d) (15).{**82 Misc 3d at 211}

A. The Text of the Automatic Orders

The automatic orders that were served in this action provide:

"(1) Neither part [sic] shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real estate, personal property, cash accounts, [*9]stocks, mutual funds, bank accounts, cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action." (Emphasis added.)

The automatic orders are codified within Domestic Relations Law § 236 (B) (2) (b). That section of the statute is entirely devoid of any reference to companion animals. Companion animals are not listed, nor provided, in the text of the automatic orders. The text of the statute only proscribes the disposition of property. While the text of the statute provides specific examples, the statute is nonlimiting. In light of the statute's silence, this court is left with insufficient guidance to determine whether or not a companion animal is included within the statute. The court therefore turns to the legislative history of the enactment of the automatic orders.

B. Purpose of the Statute/Legislative History

A review of the Assembly Memorandum in Support of 2009 NY Assembly Bill A2574 (enacted as L 2009, ch 72) reflects, in pertinent part, the following:

"PURPOSE OF BILL: To prevent a party in a matrimonial action commenced in Supreme Court from dissipating assets in order to deprive his or her spouse of the property to which that spouse may be entitled. . . .

"JUSTIFICATION: The adoption of automatic orders at the very commencement of a matrimonial action is intended to prevent both parties from dissipating assets, incurring unreasonable debts, or removing a party or the children from health or life insurance policies." (Assembly Mem in Support, Bill Jacket, L 2009, ch 72 at 6 [emphasis added].)

The purpose and justification of the bill underlying the enactment of the automatic orders in matrimonial actions were, in this court's view, to help redress the problem of the dissipation{**82 Misc 3d at 212} of assets which may have monetary value and to prevent parties and children from being removed from life, health and other insurance policies during the pendency of an action. In effect, therefore, it appears that the adaptation of the automatic orders was designed to preserve the financial status quo, as the Legislature sought to dissuade matrimonial litigants from purposefully invading assets in an attempt to reduce the share of the other spouse, and so that no spouse—or children—were taken off insurance policies pendente lite. That dissuasion was amplified by effectively proscribing certain conduct within court orders. In turn, this would prevent matrimonial litigants from not only altering or substantially impacting the parties' finances pendente lite, but also preserve the financial assets and the marital estate pending a settlement between the parties or court trial. That is, of course, in line with the general pronouncement that the law favors preservation of marital assets. (Weinstock v Weinstock, 8 Misc 3d 221 [Sup Ct, Nassau County 2005]; see also El-Dehdan v El-Dehdan, 26 NY3d 19, 32 [2015] [courts can issue "preliminary injunctions aimed at the preservation of marital assets pending equitable distribution"]; see also Joseph v Joseph, 230 AD2d 716, 717 [2d Dept 1996] ["proper exercise of . . . discretion to preserve the financial status quo of the parties until a determination on the merits of the case could be made" (emphasis added)].) The court therefore comes to the conclusion that the underlying intent, purpose and justification behind the enactment of the automatic orders were to preserve the financial status quo of the parties.^[FN1]

C. Progression and Evolution of Case Law and the Automatic Orders

In 2011, Justice Ellen Gesmer, in P.S. v R.O., found that "the legislative history of Domestic Relations Law § 236 (B) (2) (b) makes clear that the Legislature intended that a violation of the automatic orders would be redressed by the same remedies available for violations of any order signed by a judge," and found that "civil contempt is available as a remedy for violation{**82 Misc 3d at 213} of the automatic orders." (P.S. v R.O., 31 Misc 3d 373, 376, 377 [Sup Ct, NY County 2011].) Then, in 2012, Justice Matthew Cooper, in Sykes v Sykes, addressed the enactment of the automatic orders, and opined that notwithstanding that the word "dissipating" is omitted therefrom, "it is clear from the history that one of the Legislature's prime concerns in enacting the law was to provide a means to remedy an all-too-common problem: that one of the parties to a divorce would undermine the equitable distribution process by spending, transferring or concealing marital property" (Sykes v Sykes, 35 Misc 3d 591, 596 [Sup Ct, NY County 2012]). As Justice Cooper wrote: "Thus, a court, in considering an alleged violation of the automatic orders, must look not only to the actual text of the orders themselves, but it should view the violation from the perspective of the Legislature's articulated concern for preventing the dissipation of assets." (Sykes, 35 Misc 3d at 596.)

In 2018, the Second Department, in Spencer v Spencer, was confronted with two questions, one of which was whether or not the automatic orders constitute unequivocal mandates of the court for the purposes of holding a party in civil contempt pursuant to Judiciary Law § 753. (Spencer v Spencer, 159 AD3d 174 [2d Dept 2018].) In answering that question in the affirmative, the Second Department opined that

"the express purpose of the automatic orders is to preserve the status quo of property individually or jointly held by the parties, by prohibiting the transfer or encumbrance of real and personal property and retirement funds, the accumulation of unreasonable debt, and changes in beneficiaries on existing health and life insurance policies during the pendency of the action." (Spencer, 159 AD3d at 181.)

Indeed, and further to that purpose, the automatic orders were, in effect, designed "to prevent both parties from dissipating assets, incurring unreasonable debts, or removing a party or the children from health or life [*10]insurance policies." (Id. at 182.)

In 2022, the Second Department, in Davidoff v Davidoff, was presented with an appeal from an order which denied the appellant's request for permission to sell a portion of a wine collection pendente lite to pay marital debt and expenses. (Davidoff v Davidoff, 209 AD3d 833 [2d Dept 2022].) In affirming the motion court's finding, the Second Department punctuated the notion that "Domestic Relations Law § 236 was amended in {**82 Misc 3d at 214}2009 to provide upon commencement of a divorce action for automatic orders restraining the parties from transferring or disposing of marital assets, without written consent of the other party or consent of the court." (Davidoff, 209 AD3d at 833-834 [internal quotation marks omitted].)

D. Progression and Evolution of Companion Animals

Against the backdrop set forth above, the court essentially must determine whether or not a companion animal fits within the definition of an "asset" for purposes of the automatic orders. To arrive at its conclusion, the court has considered the history of the status of companion animals both in the law, in general, and also encompassed within a matrimonial action. The court has also considered other statutory authority. The court begins with the definition of personal property and what personal property was meant to include. General Construction Law § 39 defines "personal property" as follows:

"The term personal property includes chattels, money, things in action, and all written instruments themselves, as distinguished from the rights or interests to which they relate, by which any right, interest, lien or incumbrance in, to or upon property, or any debt or financial obligation is created, acknowledged, evidenced, transferred, discharged or defeated, wholly or in part, and everything, except real property, which may be the subject of ownership."

Dating back to the 1800s, pets were treated as chattel. (See generally Mullaly v People, 86 NY 365 [1881].) Actions sounding in replevin would be commenced to attempt to recover possession of an animal. (See generally Webb v Papaspiridakos, 23 Misc 3d 1136[A], 2009 NY Slip Op 51152[U] [Sup Ct, Queens County 2009].) Then came Justice Cooper's thoughtful decision in Travis v Murray, wherein he utilized the "best for all concerned" standard within the context of a matrimonial action between two litigants who jettisoned the decision of what happens to their pet during a divorce proceeding. (See generally Travis v Murray, 42 Misc 3d 447 [Sup Ct, NY County 2013].) That "best for all concerned" standard was also utilized—with a paucity of facts—in Raymond v Lachmann (264 AD2d 340 [1st Dept 1999]). After Raymond and Travis, the Legislature amended Domestic Relations Law § 236 (B) to provide for statutory authority to deal with and adjudicate the possession of a companion animal within the context of a matrimonial action.{**82 Misc 3d at 215}

Domestic Relations Law § 236 (B) (5) (d) now includes subparagraph (15). Prior to reading subparagraph (15), the court begins with paragraph (d), which reads: "[i]n determining an equitable disposition of property under paragraph c, the court shall consider" (see Domestic Relations Law § 236 [B] [5] [d] [emphasis added]). Reading paragraph (d) alone, without more, would lead the reader who is interpreting same to the likely conclusion that the court must dispose of property. However, when turning to subparagraph (15), the statute reads as follows: "in awarding the possession of a companion animal, the court shall consider the best [*11]interest of such animal. 'Companion animal', as used in this subparagraph, shall have the same meaning as in subdivision five of section three hundred fifty of the agriculture and markets law" (emphasis added).

Here's the issue: subparagraph (15) of Domestic Relations Law § 236 (B) (5) (d) requires the court to equitably dispose of property (presupposing ownership), but places an onus on the matrimonial courts to conduct a "best interests" analysis of that companion animal. Yet, at the same time, the subparagraph of the statute only authorizes the matrimonial court to award possession of the companion animal. To this court, the Legislature's insertion of the companion animal section in the equitable distribution of property portion of the statute while requiring a best interests analysis creates more confusion than clarity. Questions naturally come to mind. Was it the intent of the Legislature to continue to treat animals as property? Was it the intent of the Legislature to provide animals with a heightened level of protection? Did the Legislature truly intend to shift the focus away from treating companion animals like property? Can a matrimonial court award ownership of the companion animal, or is the court limited to awarding possession? Given that the drafters of the statute failed to include any definition—or guidance—as to how courts are supposed to determine "best interests" of animals, the court is effectively left in a legal vortex to figure it out on its own. That question, however, is not before the court today.

After the Legislature amended that portion of the statute (see supra) for companion animals, this court's colleague—Justice Jeffrey A. Goodstein—opined that "[t]he statute does not provide a standard or guidelines explaining how the court is to reach such a determination" and that "[a]lthough the standard has officially changed to a best interest analysis, the{**82 Misc 3d at 216} statute does not enumerate what the court is to consider for the best interest of a companion animal when awarding possession in a divorce proceeding" (C.B-C. v W.C., 77 Misc 3d 342, 356, 357 [Sup Ct, Nassau County 2022]). In dicta, Justice Goodstein provided a thoughtful admonition:

"A court needs a tremendous amount of information upon which to make a best interest finding. Child custody cases usually require the appointment of an attorney for the child(ren), or an appointment of a custody forensic evaluator to evaluate the child(ren) and the parties, as well as to conduct collateral interviews with teachers, childcare providers, pediatricians, and the like. Further, as was the case here, the court must conduct an in camera with the child(ren) themselves." (C.B-C., 77 Misc 3d at 356.)

In his decision in C.B-C., Justice Goodstein enumerated seven factors that he used and adopted in aiding to determine the "best interests" of the animal standard. (Id.) In L.B. v C.C.B., Justice Quiñones also articulated factors in determining the best interests of a companion animal. (L.B. v C.C.B., 77 Misc 3d 429 [Sup Ct, Kings County 2022].) However, this court is not called upon to determine the best interests of B.; rather, and in effect, it is called upon to determine whether or not the euthanasia of B. by the plaintiff without the defendant's knowledge or consent is a violation of a lawful order of the court, clearly expressing an unequivocal mandate (see El-Dehdan). That question, to this court, hinges on whether or not B. should be classified as "property" or an "asset." Without that [*12]affirmative classification, the defendant's application, in effect, fails. When the Legislature adopted subparagraph (15) of Domestic Relations Law § 236 (B) (5) (d), the Senate Introducer's Memorandum in Support of 2021 NY Senate Bill S4248 (enacted as L 2021, ch 509) reflects the following:

"PURPOSE OR GENERAL IDEA OF BILL:

"The purpose of this legislation is to ensure that the best interests of pets are taken into consideration during divorce or separation proceedings. . . .

"JUSTIFICATION:

"According to the American Veterinary Medical Association (AVMA), 36.5% of American households owned a dog and 30.4% owned a cat in 2012. As many of these households know, companion animals usually become members of the family. Although{**82 Misc 3d at 217} the nationwide divorce rate is at its lowest in 40 years, divorces still occur and can become contentious. Custody decisions involving pets in divorce proceedings are not uncommon.

"Courts typically deal with pets in divorce proceedings as they do with personal property such as cars and furniture. For many families, pets are the equivalent of children and must be granted more consideration by courts to ensure that they will be properly cared for after a divorce." (Senate Introducer's Mem in Support, Bill Jacket, L 2021, ch 509 at 6 [emphasis added].)

The court is of the opinion that it was the intent of the Legislature, when it adopted section 236 (B) (5) (d) (15), to shift away from treating companion animals as property or an asset notwithstanding its placement in the equitable distribution portion of property section of the statute. Indeed, this court's view is buttressed by, among other things, the Legislature's intentional omission of the word "ownership" in that section of the statute and the stated justification that pets, "[f]or many families, . . . are the equivalent of children and must be granted more consideration by courts" (Senate Introducer's Mem in Support, Bill Jacket, L 2021, ch 509 at 6). The overarching purpose of Senate Bill S4248 was to consider the best interests of the pet and to ensure that pets are given more consideration, not that their prior status as chattel be retained. It is the opinion of this court that the Legislature's intent was to shift away from classifying companion animals as "pets" or chattel. Therefore, B. cannot be classified as either "property" or an "asset" for the limited purpose of treatment under the automatic orders.

In furtherance of its conclusion, the court notes that other statutes have given companion animals additional protection. Consider the Family Court Act. The court notes that protection, to some degree, is afforded to a companion animal under Family Court Act § 842 (i) (1) and (2), which provide, in sum and substance, that an order of protection can include terms that the respondent: "1. to refrain from intentionally injuring or killing, without justification, any companion animal the respondent knows to be owned, possessed, leased, kept or held by the petitioner or a minor child residing in the household." The court cannot reasonably conclude that something that is given special protection under the Family Court Act is treated in the same form as an "asset" for purposes of the automatic orders.[*13]{**82 Misc 3d at 218}

E. Purpose of the Application

The purpose of the defendant's application is for an adjudication of contempt of court. As the Second Department has held, "[t]he goal of civil contempt is to vindicate the rights of a private party to the litigation," while "criminal contempt involves an offense against judicial authority and is utilized to protect the integrity of the judicial process and to compel respect for its mandates." (Madigan v Berkeley Capital, LLC, 205 AD3d 900, 904, 905 [2d Dept 2022] [emphasis added and internal quotation marks omitted].) The court has carefully reviewed the defendant's application in toto, which includes the affirmation of his competent matrimonial counsel. That affirmation provides, in part:

"[f]or efficiency's sake, I will not reiterate the wrongs outlined in detail in Defendant's Affidavit that were committed by the Plaintiff in violating the Automatic Orders of this Court. Suffice it to say that Plaintiff's reprehensible acts entitle the Defendant . . . to a finding of contempt against the Plaintiff. The court in Corso v. Crawford Dog and Cat Hosp. Inc, held that a pet, such as a dog, is not just a thing but occupies a special place somewhere in between a person and a piece of personal property; accordingly, the defendant commits an actionable tort entitling plaintiff to damages beyond the market value of the dog where plaintiff suffered mental anguish and despondency due to the defendant's wrongful destruction of the remains of her dog . . . the case at bar deals with an animal who was alive and breathing, and maliciously taken away from Defendant without any prior notice or opportunity to pay his last respects before the Plaintiff had him put to death. Adding to Defendant's mental distress is the fact that he will never know if he could have intervened to provide medical care to extend the life of his beloved companion animal. Plaintiff should be held in contempt of court and ordered to pay a fine no less than $1,500 for her reprehensible acts and contempt of this Court's Automatic Orders" (see affirmation of L. Simonetti para 7).

A close reading of the affirmation of the defendant's counsel does not propound arguments sounding in contempt. Rather, the arguments sound in part in tort law, and in part in criminal{**82 Misc 3d at 219} law. Those claims, if viable, are not properly before this court. The defendant does not argue that the plaintiff is in criminal contempt of an order of the court; rather, he, in effect, seeks a civil contempt finding and a fine of not less than $1,500.00. Civil contempt penalties are to be remedial in nature. (Matter of Wynyard v Beiny, 214 AD2d 344 [1st Dept 1995]; see also Ruesch v Ruesch, 106 AD3d 976 [2d Dept 2013].) The defendant seeks $1,500.00 to, in effect, compensate him for "non-economic and punitive damages"^[FN2] (see defendant's aff para 4 [emphasis added]). His affidavit constitutes an admission. The defendant's application seeks to be punitive in nature, which is the antithesis of an application seeking an [*14]adjudication of civil contempt. (See Wynyard.) "[C]ivil contempt fines must be remedial in nature and effect," with "[t]he award . . . formulated not to punish an offender, but solely to compensate or indemnify private complainants." (See generally State of New York v Unique Ideas, 44 NY2d 345, 349 [1978] [emphasis added].) In any event, even if the defendant was not seeking punitive measures, this court is unable to impose a fine of $1,500.00. The court first notes that the defendant neither proffers nor appends any cognizable evidence of B.'s value. That notwithstanding, Judiciary Law § 773, entitled "Amount of fine," provides:

"Where it is not shown that such an actual loss or injury has been caused, a fine may be imposed, not exceeding the amount of the complainant's costs and expenses, and two hundred and fifty dollars in addition thereto, and must be collected and paid, in like manner. A corporation may be fined as prescribed in this section."

Even if this court were inclined to find the plaintiff in contempt of court and sentence her to a fine—which it is not—the amount of the fine would be limited to $250.00 (plus costs and expenses) (see Judiciary Law § 773). Critically in this regard, since the defendant has not proved the actual value of his loss for B., he has not shown that "actual loss or injury has been caused." (See Judiciary Law § 773 [emphasis added].) {**82 Misc 3d at 220}What is more, "[c]oercive penalties designed to modify the contemnor's behavior . . . are civil in nature." (New York City Tr. Auth. v Transport Workers Union of Am., AFL-CIO, 35 AD3d 73, 86 [2d Dept 2006] [emphasis added].) Here, a civil contempt penalty would have been designed to modify the plaintiff's behavior or coerce the plaintiff into performing an act. The unfortunate reality here is that the euthanasia of B. has already taken place. The court does not find that there is any act which the court can impose that would or will coerce the plaintiff or modify the plaintiff's behavior to effectively undo B.'s euthanasia. After a careful review of the defendant's underlying application, the court finds the intent and purpose behind same to be punitive, not remedial. While the defendant may have other remedies at law not properly before this matrimonial court, civil contempt is not one of them.

The court has another consideration: the defendant's affidavit reads as follows, in pertinent part:

"On or about August 3, 2023, the Plaintiff maliciously and vindictively violated the Automatic Orders of the Court by wrongfully dissipating a valuable marital asset without my knowledge or consent or the consent of this Honorable Court when she unilaterally chose to have our beloved family pet, B. M., put to death without viable reason, necessity or justification . . .

"As a result of Plaintiff's despicably cruel, wanton, willful and intentional misconduct, and B.'s wrongful death, I have suffered extreme emotional distress."

Agriculture and Markets Law § 353 provides, in relevant part:

"A person who overdrives, overloads, tortures or cruelly beats or unjustifiably injures, maims, mutilates or kills any animal, whether wild or tame, and whether belonging to himself or to another, or deprives any animal of necessary sustenance, food or drink, or neglects or refuses to furnish it such sustenance or drink, or causes, procures or permits any animal to be overdriven, overloaded, tortured, cruelly beaten, or unjustifiably injured, [*15]maimed, mutilated or killed, or to be deprived of necessary food or drink, or who wilfully sets on foot, instigates, engages in, or in any way furthers any act of cruelty to any animal, or any{**82 Misc 3d at 221} act tending to produce such cruelty, is guilty of a class A misdemeanor and for purposes of paragraph (b) of subdivision one of section 160.10 of the criminal procedure law, shall be treated as a misdemeanor defined in the penal law."

The defendant alleges, among other things, that the plaintiff intentionally put B. to death, effectively implying that the euthanasia of B. was unnecessary. If true, that conduct may constitute a class A misdemeanor, provided the necessary elements are met (see Agriculture and Markets Law § 353). The court makes no finding in this regard. The court is also unsure whether or not the defendant ever filed a criminal complaint. The court makes this point to punctuate its conclusion that a companion animal is not an asset with protection under the automatic orders. While they may indeed have been afforded protection elsewhere, relief under the automatic orders is not viable. Inasmuch as "[c]ontempt is a drastic remedy which should not be granted absent a clear right to such relief" (see generally Hilton M. Wiener, LLC v Andersen, 2020 NY Slip Op 32652[U], *8-9 [Sup Ct, NY County 2020]), the defendant has failed to convince the court that there is a clear right to such relief on this application.

F. Contempt of Court—The Law and Elements

Pursuant to Judiciary Law § 753 (A) (3):

"A court of record has power to punish, by fine and imprisonment, or either, a neglect or violation of duty, or other misconduct, by which a right or remedy of a party to a civil action or special proceeding, pending in the court may be defeated, impaired, impeded, or prejudiced, in any of the following cases: . . .

"3. A party to the action or special proceeding, an attorney, counsellor, or other person, for the non-payment of a sum of money, ordered or adjudged by the court to be paid, in a case where by law execution can not be awarded for the collection of such sum except as otherwise specifically provided by the civil practice law and rules; or for any other disobedience to a lawful mandate of the court."

A contempt citation is a drastic remedy which should not be granted absent a clear right to such relief. (Pinto v Pinto, 120 AD2d 337 [1st Dept 1986]; Usina Costa Pinto, S.A. v Sanco Sav. Co., 174 AD2d 487 [1st Dept 1991]; see also Board of Mgrs. of the Empire Condominium v Attwood, 2014 NY Slip Op{**82 Misc 3d at 222} 31279[U] [Sup Ct, NY County 2014].) "Contempt is a drastic remedy which necessitates strict compliance with procedural requirements." (Matter of Loeber v Teresi, 256 AD2d 747, 749 [3d Dept 1998].) "A motion to punish a party for civil contempt is addressed to the sound discretion of the court, and the movant bears the burden of proving the contempt by clear and convincing evidence." (Matter of Hughes v Kameneva, 96 AD3d 845, 846 [2d Dept 2012].) As the Court of Appeals wrote in El-Dehdan v El-Dehdan, "the elements necessary to support a finding of civil contempt" are as follows: "[f]irst, it must be determined that a lawful order of the court, clearly expressing an unequivocal mandate, was in effect"; "[s]econd, it must appear, with reasonable certainty, that the order has been disobeyed"; "[t]hird, the party to be held in contempt must have had knowledge of the court's order, although it is not [*16]necessary that the order actually have been served upon the party"; and "[f]ourth, prejudice to the right of a party to the litigation must be demonstrated." (El-Dehdan v El-Dehdan, 26 NY3d 19, 29 [2015] [alteration and internal quotation marks omitted].) Since the court has determined that a companion animal does not fall under the purview of the automatic orders, the court cannot conclude that the defendant has established, by clear and convincing evidence, that the plaintiff violated a lawful order of the court, clearly expressing an unequivocal mandate.^[FN3]

The court also notes that even if the court were inclined to find that a companion animal is an asset under the purview of the automatic orders, and even if the defendant had met the first three elements of civil contempt, the defendant would not have been able to establish prejudice inasmuch as the defendant has not submitted any evidence of B.'s monetary value. The defendant's claim that B. was worth $1,500.00, without more, would have been insufficient to raise an issue of fact warranting a hearing. The court therefore finds no issue of fact as to that element of civil contempt. The court therefore declines to conduct a hearing, as one is not required. (See generally Shemtov v Shemtov, 153 AD3d 1295 [2d Dept 2017].){**82 Misc 3d at 223}

G. Defendant's Reliance on Corso v Crawford Dog & Cat Hosp.

In support of the defendant's application for contempt, the principal case relied upon is Corso v Crawford Dog & Cat Hosp. That matter was adjudicated by the Civil Court of the City of New York in 1979, was not within the context of a matrimonial action, was adjudicated well before the enactment of Domestic Relations Law § 236 (B) (5) (d) (15), and did not have a question before it of whether or not a party should be adjudicated to be in violation of a court order. In addition, that decision is not binding on this court. That aside, and in any event, the court in Corso held that "the destruction of the dog's body gives rise to an actionable tort" and damages were awarded "beyond the market value of the dog." (Corso v Crawford Dog & Cat Hosp., 97 Misc 2d 530, 531 [Civ Ct, Queens County 1979] [emphasis added].) The defendant unpersuasively conflates two issues: whether or not the plaintiff committed a tort and whether or not the plaintiff has violated a court order. Those are separate and distinct questions. If a party commits a tort, that does not mean that a party has violated a court order. As to the damages awarded in Corso, again, that case is distinguishable inasmuch as a claim for damages for the commission of a tort is not properly before the matrimonial court and should not be intertwined with compliance or noncompliance with a court order.

H. Conclusion

This court would be remiss if it failed to reiterate the obvious: there can be no doubt that the loss of any pet is profound. But the question before the court was whether or not the euthanasia of B.—a companion animal—constituted a violation of the automatic orders because that euthanasia was performed without a court order or agreement of the defendant. The court answers this question in the negative. The court simply performs its duty by answering the narrow question in issue, and does not opine on whether or not the defendant has other remedies in law, civilly and/or criminally. This court takes no position on same. This decision should not be read as dispositive on whether or not the defendant has any such claims, nor should it be read [*17]as dispositive if the defendant, in fact, brings such claims against the plaintiff.

Because of the absence of the reference to companion animals in the text of the automatic orders, because the intent and purpose of the automatic orders was designed to preserve the financial status quo during the pendency of a divorce action,{**82 Misc 3d at 224} because it was not the intention of the Legislature to continue to treat companion animals as property or chattel, because the purpose of the defendant's application is not remedial in nature, because the defendant has not established by clear and convincing evidence that the plaintiff violated an unequivocal mandate of the court, and because of the facts and circumstances of this case, it is hereby ordered that branches (1) and (2) of the defendant's order to show cause dated September 21, 2023, be and the same are hereby denied.

Exclusive Occupancy

Domestic Relations Law § 234 provides:

"In any action for divorce, for a separation, for an annulment or to declare the nullity of a void marriage, the court may (1) determine any question as to the title to property arising between the parties, and (2) make such direction, between the parties, concerning the possession of property, as in the court's discretion justice requires having regard to the circumstances of the case and of the respective parties. Such direction may be made in the final judgment, or by one or more orders from time to time before or subsequent to final judgment, or by both such order or orders and final judgment. Where the title to real property is affected, a copy of such judgment, order or decree, duly certified by the clerk of the court wherein said judgement was rendered, shall be recorded in the office of the recording officer of the county in which such property is situated, as provided by section two hundred ninety-seven-b of the real property law."

The test for determining whether a party is entitled to exclusive use and occupancy of the marital residence involves either finding the presence of domestic strife coupled with the opposing party's establishment of an alternative residence or a finding that an award of exclusive occupancy is necessary to protect persons or property. (De Cillis v De Cillis, 157 AD2d 822 [2d Dept 1990]; see also Annexstein v Annexstein, 202 AD2d 1062 [4th Dept 1994].) However, the standard for granting exclusive possession is not so inflexible as to exclude any circumstances warranting judicial intervention. (Delli Venneri v Delli Venneri, 120 AD2d 238 [1st Dept 1986]; Grogg v Grogg, 152 AD2d 802 [3d Dept 1989].)

Whether or not the defendant voluntarily vacated the Glen Head residence or whether or not he left because of the issuance of the temporary order of protection, the fact remains that{**82 Misc 3d at 225} he has established an alternative residence. In fact, the defendant sets forth in his cross-moving affidavit that he has incurred "rental and other living expenses" (see para 7 thereof). The court also finds that the defendant's return to the Glen Head residence would cause domestic strife given the issuance and existence of the temporary order of protection. Also, in light of the fact that the defendant has not denied the plaintiff's allegations—corroborated by the AFC—that the defendant physically sat on the parties' daughter and slapped her in the face, the court finds that an award of exclusive occupancy to the plaintiff is necessary to protect the parties' children. Accordingly, it is hereby [*18]ordered that branch (b) of the plaintiff's order to show cause dated August 11, 2023, be and the same is hereby granted, and the plaintiff is granted pendente lite exclusive use, occupancy and possession of the premises located at XX, Glen Head, New York 11545, and the defendant is hereby directed not to return.

Consolidation

In light of this court's short form order dated October 2, 2023, wherein it consolidated the family offense proceedings with this matter, it is hereby ordered that branch (c) of the plaintiff's order to show cause dated August 11, 2023, be and the same is hereby deemed moot and not adjudicated herein.

Attorney for the Children

This court issued an order appointing attorney for the children on August 11, 2023. Accordingly, it is hereby ordered that branch (d) of the plaintiff's order to show cause dated August 11, 2023, be and the same is hereby deemed moot and not adjudicated herein.

Basic Child Support

The plaintiff seeks an award of basic child support. The unemancipated children of this marriage all reside principally with the plaintiff. An award of child support is payable to the custodial parent by the noncustodial parent (see Domestic Relations Law § 240 [1-b] [f]; see also Papier v Papier, 274 AD2d 806, 806 [3d Dept 2000] [writing that "(a)s a general rule, a custodial parent—including a 'de facto' custodial parent (see, e.g., De Arakie v De Arakie, 169 AD2d 660 [1st Dept 1991] . . . )—is entitled to interim child support during the pendency of a divorce action"]). In awarding temporary child support, the court has considered the guidelines contained in the Child Support Standards Act (hereinafter referred to as the CSSA) (see Domestic Relations Law § 240 [1-b] [c]) as well as the factors which permit{**82 Misc 3d at 226} a deviation from the standard calculation, as delineated in Domestic Relations Law § 240 (1-b) (f), such as the financial resources of the custodial and noncustodial parent and those of the children, the physical and emotional health of the children, and their educational or vocational needs and aptitudes, as well as the nonmonetary contributions that the parents will make toward the care and well-being of the children (see Formato v Formato, 173 AD2d 274 [1st Dept 1991]). Additionally, the court must take into account the shelter costs attributable to the children in order to avoid duplication of awards. (See generally Linda R.H. v Richard E.H., 205 AD2d 498 [2d Dept 1994].)

"The Child Support Standards Act requires the court to establish the parties' basic child support obligation as a function of the 'gross (total) income' that is, or should have been, reflected on the party's most recently filed income tax return." (See generally Matter of Krukenkamp v Krukenkamp, 54 AD3d 345, 346 [2d Dept 2008].)^[FN4] The plaintiff's Medicare wages as reported in 2022 were $140,347.82. The plaintiff's gross income for purposes of basic child [*19]support is, therefore, $129,611.11.^[FN5] The defendant's Medicare wages as reported in 2022 were $140,666.98. The defendant's gross income for purposes of basic child support is, therefore, $129,905.50.^[FN6]

With respect to the plaintiff's allegation regarding the defendant receiving "approximately" $9,000.00 from tutoring, the court has insufficient information on this application to impute or add that sum to the defendant's income at this time. The court is unsure as to whether or not the $9,000.00 from tutoring is subsumed within the defendant's W-2 wages or is within the form of additional wages received. The court therefore declines to include that sum in the defendant's income at this time, without prejudice to the plaintiff's rights to introduce such evidence at trial at which time the parties' finances can be fully explored. (See generally Safir v Safir, 206 AD3d 842{**82 Misc 3d at 227} [2d Dept 2022]; see also Evelyn v Evelyn, 168 AD3d 911 [2d Dept 2019].)

The parties' combined parental income is $259,516.61. The applicable child support percentage is 25% (for the two unemancipated children), which in this case equals $40,750.00 (up to and including the statutory cap of $163,000.00) as and for a combined child support obligation. Therefore, the plaintiff's pro rata share (to wit: 50%) of the combined child support obligation is $20,375.00 per year or $1,697.92 per month and defendant's pro rata share (to wit: 50%) of the combined child support obligation is $20,375.00 per year or $1,697.92 per month. If the above guidelines were applied above the cap and across the parties' total combined income, the support to be paid by the defendant to the plaintiff is $32,439.58 per year or $2,703.30 per month. However, the application before the court at this time is one for pendente lite basic child support, not a final award of basic child support.

This is an application for pendente lite basic child support. "Courts considering applications for pendente lite child support may, in their discretion, apply the CSSA standards and guidelines, but they are not required to do so." (See Vistocco v Jardine, 116 AD3d 842, 843 [2d Dept 2014]; see also Davydova v Sasonov, 109 AD3d 955 [2d Dept 2013]; see also Rifkin v Ilecki, 188 AD3d 1773 [4th Dept 2020].) Here, the court declines to apply the CSSA standards and guidelines at this time and elects to award the sum of $1,500.00 per month to the plaintiff as and for basic child support. In this respect, the court has reviewed the plaintiff's sworn statement of net worth and expenses listed thereon, such as, including but not limited to, the cost of housing, food and shelter. The court finds that the sum of $1,500.00 will adequately meet the needs of the children pendente lite. In addition, the court elects not to apply the CSSA standards and guidelines on this application inasmuch as the court is directing the defendant to contribute to 50% of the mortgage, real estate taxes and homeowner's insurance on and associated with the Glen Head residence (see infra). That directive includes shelter costs for the children. Furthermore, the court declines to compute child support based upon the defendant's structured payment of his salary. The fact that the defendant does not receive a pay check in the [*20]summer is not a sufficient basis for this court to tailor or structure his child support payment around the frequency in which a pay check is received. The defendant has an obligation and duty to support{**82 Misc 3d at 228} the children (see generally Matter of Harvey-Cook v Neill, 118 AD2d 109, 111 [2d Dept 1986] ["parent's duty to support his minor child according to his means is firmly established"]). Accordingly, it is hereby ordered that so much of branch (j) of the plaintiff's order to show cause dated August 11, 2023, which seeks an award of basic child support be and the same is hereby granted to the extent that the defendant shall pay to the plaintiff as and for pendente lite basic child support on behalf of the parties' two children the sum of $1,500.00 per month, commencing on the first day of the first full month following the date of this decision and order, and payable prospectively and continuing on the first day of each month thereafter, retroactive to the date of this application: August 11, 2023; and it is further ordered that retroactive sums due by reason of this pendente lite award shall be paid at the rate of $100.00 per month in addition to the sums awarded until all arrears have been satisfied. The defendant is entitled to a credit for sums paid for child support incurred after the making of this motion and prior to the date of this decision and order for which the defendant has cancelled checks or other similar proof of payment. (See Peltz v Peltz, 56 AD2d 519 [1st Dept 1977]; see also Pascale v Pascale, 226 AD2d 439 [2d Dept 1996].)

Carrying Charges

The Glen Head residence was acquired in or about October 2013 by the parties in joint names. The parties were married in 2002. Therefore, the Glen Head residence was acquired during the parties' marriage, presumptively making it a marital asset. The parties' statement(s) of net worth reflect that the mortgage is held in the names of both parties, having been incurred in 2013, making the mortgage presumptively a marital debt. "The burden of repaying marital debt should be equally shared by the parties, in the absence of countervailing factors, and any such liability should be distributed in accordance with general equitable distribution principles and factors." (Barra v Barra, 191 AD3d 831, 832 [2d Dept 2021].) "Generally, it is the responsibility of both parties to maintain the marital residence during the pendency of a matrimonial action." (Goldman v Goldman, 131 AD3d 1107, 1108 [2d Dept 2015] [alterations omitted]; see also Hymowitz v Hymowitz, 119 AD3d 736 [2d Dept 2014].)

After a careful review of the respective statement(s) of net worth of the parties, it appears that the Glen Head residence is the largest asset of this marriage. The court finds no{**82 Misc 3d at 229} countervailing factors which would dissuade it from directing both parties to equally contribute to the mortgage, real estate taxes and homeowner's insurance on and associated with the Glen Head residence, as the court wishes to preserve that asset. After all, the law generally favors the preservation of marital assets pending equitable distribution of same. (MacKinnon v MacKinnon, 245 AD2d 676 [3d Dept 1997].) As for the request for contribution to repairs, the plaintiff has not provided this court with any proof of same thus far. Therefore, that portion of the application is denied without prejudice, with leave to seek same either pendente lite or at trial should such a cost be incurred. Accordingly, it is hereby ordered that branch (g) of the plaintiff's order to show cause dated August 11, 2023, be and the same is hereby granted to the extent that the defendant shall pay directly to the plaintiff, commencing on the first day of the first full month following the date of [*21]this decision and order, and payable prospectively, in advance, on the first day of each month thereafter, the sum equal to 50% of the cost of the mortgage, real estate taxes and homeowner's insurance on and associated with the Glen Head residence, and is otherwise denied without prejudice and to the extent indicated herein.

Add-on Expenses

With respect to child care expenses, pursuant to the CSSA, where the custodial parent incurs child care expenses as a result, inter alia, of employment or vocational training, the noncustodial parent may be required to pay his or her proportionate share of such expenses as a supplement to the basic support obligation, and such expenses shall be prorated in the same proportion as each parent's income is to the combined parental income (Domestic Relations Law § 240 [1-b] [c] [4]; see McBride v McBride, 238 AD2d 320, 321 [2d Dept 1997]; see Matter of Wallin v Wallin, 53 AD3d 663 [2d Dept 2008]). Likewise, it has been found that "summer camp expenses for the children constitute child care expenses within the meaning of [the] Domestic Relations Law." (See generally Sieratzki v Sieratzki, 8 AD3d 552, 554 [2d Dept 2004].) With respect to unreimbursed health care expenses, "[p]ursuant to Domestic Relations Law § 240 (1-b) (c) (5) (v), each parent's share of unreimbursed health care expenses is to be prorated in the same proportion as each parent's income is to the combined parental income." (See generally Castello v Castello, 144 AD3d 723, 727 [2d Dept 2016].) This court also has the authority to{**82 Misc 3d at 230} direct a parent to pay their pro rata share of extracurricular activities. (See generally Bauman v Bauman, 132 AD3d 791 [2d Dept 2015].) Accordingly, it is hereby ordered that branches (e) and (f) of the plaintiff's order to show cause dated August 11, 2023, be and the same are all hereby granted to the extent set forth in this decision and order; and it is further ordered that the defendant shall pay 50% and the plaintiff shall pay 50% of any child care costs and/or summer camp expenses incurred by the plaintiff as may be necessary to enable the plaintiff to work or incurred for necessary vocational training in furtherance of employment; and it is further ordered that defendant shall pay 50% and the plaintiff shall pay 50% of the unemancipated children's unreimbursed health care expenses, provided either in network providers are utilized, absent an emergency, or the provider is already treating the child(ren); and it is further ordered that the defendant shall pay 50% and the plaintiff shall pay 50% of the unemancipated children's currently existing extracurricular activities provided that said expenses are consistent with past practice.

Marital Debt/Automobiles

With respect to the issue of the monthly payment of the consolidated debt and vehicles, those issues are referred to trial. The court has reviewed the credit consolidation document appended to the plaintiff's opposition and reply (see NYSCEF Doc No. 47). Same reflects approximately 13 debts which were enrolled in said consolidation. However, that document does not reflect when those debts were incurred and for what purpose those debts were incurred. That document does not conclusively establish to the satisfaction of this court that all of those debts were incurred during the marriage for a legitimate marital purpose. At trial, the parties' finances can be fully explored. (See Safir.) The court likewise has insufficient [*22]documentary evidence on this application with respect to the vehicles. In fact, no financial documentation has been provided to the court. Based upon the paucity of documentary evidence concerning the debts and vehicles, the court is constrained to refer those portions of the plaintiff's application to trial. Accordingly, it is hereby ordered that branches (h) and (i) of the plaintiff's order to show cause dated August 11, 2023, be and the same are hereby referred to trial.

Counsel Fees

Domestic Relations Law § 237 (a), the statutory predicate for an award of counsel fees, provides as follows:{**82 Misc 3d at 231}

"(a) In any action or proceeding brought . . . for a divorce . . . the court may direct either spouse . . . 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 a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding."

"An award of counsel fees 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." (Fugazy v Fugazy, 210 AD3d 653, 655 [2d Dept 2022].) "An award of interim counsel fees is designed to redress the economic disparity between the monied spouse and the non-monied spouse, and ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse." (Pezzollo v Pezzollo, 173 AD3d 918, 919 [2d Dept 2019]; see also Cohen v Cohen, 160 AD3d 804 [2d Dept 2018].) Not only is there "a rebuttable presumption that interim counsel fees shall be awarded to the less monied spouse," but "courts should normally exercise their discretion to grant such a request made by the nonmonied spouse, in the absence of good cause to deny the request." (See Pezzollo at 919 [internal quotation marks omitted]; see also Prichep v Prichep, 52 AD3d 61 [2d Dept 2008].)

In Prichep v Prichep, the Second Department explained that "the realities of contentious matrimonial litigation require a regular infusion of funds, and that more frequent interim counsel fee awards would prevent accumulation of bills" (Prichep v Prichep, 52 AD3d 61, 65 [2d Dept 2008] [internal quotation marks omitted]; see also Frankel v Frankel, 2 NY3d 601, 605 n 1 [2004]). A counsel fee award helps reduce what would otherwise be a substantial advantage to the monied spouse. "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{**82 Misc 3d at 232} not unbalanced by the weight of the wealthier litigant's wallet." (Kaplan v Kaplan, 28 AD3d 523, 523 [2d Dept 2006] [internal quotation marks omitted]; see also O'Shea v O'Shea, 93 NY2d 187 [1999].) "An award of interim counsel fees to the nonmonied spouse will generally be warranted where there is a significant disparity in the financial circumstances of the parties." (Fugazy, 210 AD3d at 655-656.)

"Because of the importance of such awards to the fundamental fairness of the proceedings, an application for interim counsel fees by the nonmonied spouse in a divorce action should not be denied—or deferred until after the trial, which functions as a denial—without good cause, articulated by the court in a written decision." (Id. at 656 [alteration omitted].)[*23]

The court notes that it has found the plaintiff's income to be $129,611.11 and the defendant's income to be $129,905.50. The court finds that the parties' incomes are in relative parity, which would ordinarily be a factor militating against an award of interim counsel fees. The court has also reviewed the assets sections of the parties' respective statement(s) of net worth and does not find that either party has substantially greater assets than the other. This likewise is a factor which would ordinarily militate against an award of interim counsel fees. However, the court notes that the plaintiff was compelled to file this application seeking pendente lite support. This court can absolutely consider, on this application, whether or not any party has engaged in conduct which has caused unnecessary litigation. (See generally Gorman v Gorman, 187 AD3d 636 [1st Dept 2020].) The court has carefully reviewed the opposing and cross-moving papers of the defendant and notes that the defendant does not refute the plaintiff's allegations that the defendant stopped contributing to marital expenses for the children. Accordingly, the court finds that the plaintiff was compelled to file this application, and finds a modest award of counsel fees to be appropriate. The court has reviewed the retainer agreement of the plaintiff's counsel and finds the hourly rate charged to be reasonable, and the court has also reviewed the billing statements of the plaintiff's counsel and finds that the sum of $2,720.00 was incurred in the making and preparation of this application. Those time charges are reasonable under the circumstances, and the court hereby awards said sum to the plaintiff. As a final point, the court does not find that the defendant is entitled to reimbursement{**82 Misc 3d at 233} of counsel fees based upon, among other things, the financial parity of the parties' incomes and assets as well as the fact that his application seeking an adjudication of contempt was denied. Accordingly, it is hereby ordered that branch (k) of the plaintiff's order to show cause dated August 11, 2023, be and the same is hereby granted to the extent that the defendant shall pay directly to the plaintiff's counsel, Megan E. Woolley, Esq., the sum of $2,720.00, within 30 days of the date of service of the within decision and order with notice of entry. The award is made without prejudice to further applications for additional sums as is necessary at the time of trial or sooner (see Ritter v Ritter, 135 AD2d 421 [1st Dept 1987]; Jorgensen v Jorgensen, 86 AD2d 861 [2d Dept 1982]); and it is further ordered that upon the failure of defendant to pay the plaintiff's counsel as set forth herein above, the plaintiff's counsel may file an affidavit of noncompliance with the Clerk of the County, who shall enter a judgment, with statutory interest thereon as of the date of this decision and order, in favor of Megan E. Woolley, Esq., the attorneys for the plaintiff, and against the defendant, E.M., without further proceedings; and it is further ordered that branch (4) of the defendant's order to show cause dated September 21, 2023, be and the same is hereby denied.

Miscellaneous

In light of the court's determination(s) set forth in this decision and order, this court need not decide, separately, branches (5) and (6) of the defendant's order to show cause dated September 21, 2023. Additionally, and in light of the court's decision and order, it is hereby ordered that any and all temporary order(s) granted in the plaintiff's order to show cause dated August 11, 2023, be and the same are hereby vacated and dissolved, are of no [*24]further force and effect, and are all superceded by the terms of this decision and order.

Any other relief requested not specifically addressed herewith is hereby denied.