The parties to this matrimonial action were married in 1994 in Paris, France. Prior to the wedding, the parties' entered into a comprehensive French prenuptial agreement. Importantly, the ordering under the prenuptial agreement concerns mainly issues of equitable distribution and indisputably does not waive or in any way bar the relief sought herein. During the parties' marriage, they welcomed three (3) children, all of whom are now emancipated and are otherwise not relevant to the instant-motion sequence.

The parties enjoyed a lavish lifestyle defined by fine art, luxury, which according to the Wife, resulted in "a fortune of tens of millions, if not hundreds of millions of dollars." Historically, this lifestyle was made possible by the joint efforts of the Husband working in the financial industry and the Wife working as a homemaker for the vast majority of the marriage, after having been a practicing attorney at the prestigious firm Wilkie Farr & Gallagher. The Wife currently has a modest jewelry business that she purports to earn her "$25,000.00" per year in income.

The parties' financial picture, at this current time, is slightly different with regards to the [*2]Husband's current income stream. Rather than working in the financial industry, the Husband now is pursuing a PhD. In addition to pursuing a PhD, the Husband maintains work as a consultant in the energy industry. The Husband alleges he earns "approximately $200,000.00 from consulting." This sum is vastly lower than the Husband's historical earnings when working in the financial industry, which alleged by the Wife garnered "millions of dollars per year" and involved working for prominent financial services companies, such as Goldman Sachs. The Husband argues that in considering this previous work history, it is important to remember that work was "approximately 12 years" ago. To maintain their previous lifestyle while pursuing a PhD and doing side consultant work, the Husband states the parties have dipped into his finite "separate property" and other marital assets.

Also relevant to understanding this family's financial picture is the fact the Husband is a beneficiary to a trust with a corpus of allegedly $20,000,000.00. The corpus of the trust is derived from a massive inheritance the Husband received from his deceased father. The Husband does not dispute the existence of the trust; rather, he asserts he has no ability to dictate if he receives distributions and that the other beneficiaries are the parties' children. The Husband buttresses this allegation with an affidavit from the trustee. In response, the Wife alleges that the Children are inferior to the Husband under the structure of the trust being merely "residual beneficiaries."

In contrast to distributions, it is undisputed that the Husband received loans from the trust. The note produced by the Wife demonstrates a loan in the sum of $1,600,000.00 on or about July 2, 2013.

In addition to the trust, artwork and real estate compromise substantial value in the marital estate. The Husband also holds various business interests and extensive investments. The Husband's Net Worth Statement asserts assets in the sum of "$28,301,739.69" and liabilities totaling "$1,635,002.11."

The parties put strong efforts into resolving this matter through mediation; however, they now seek judicial intervention on a myriad of issues.

The Wife moves by order to show cause for, inter alia, an order directing the Husband to pay $20,000.00 per month in pendente lite spousal support, carrying costs, $750,000.00 in interim counsel fees and for an appraisal of the parties' art collection.^[FN1] Upon consideration of the moving papers, this Court signed the Order to Show Cause and awarded the interim relief of $75,000.00 in counsel fees to the Wife to be paid by the Husband from "his allegedly separate assets."

On the issue of pendente lite maintenance, the Husband seeks that this Court award pendente lite maintenance in the form of an order directing he pay: all of the maintenance and utilities costs on the marital residence, home and automobile insurance, pet expenses, health insurance (covered by the parties' joint account), $3,800.00 per month from his separate property, $3,700.00 from the parties' joint account (a distribution which the Husband he would also take), and equally sharing in the cost of the housekeeper and the garage.

He further argues that in resolving pendente lite support this Court should impute income [*3]to the Wife (specifically, $50,000.00 per year) based on her credentials and current jewelry business and consider his current income and the alleged separate character of much of his assets. On the issue of counsel fees, the Husband argues he should not be directed to pay further sums beyond the $75,000.00 interim award. He argues further that this denial of fees is supported by the Wife's alleged dilatory tactics and the sums already paid to her counsel from marital assets. The Husband also raises that the requested sum for interim fees is far more than both the sums paid to the Wife's firm to date and their outstanding bill. The Husband argues that the appraisal request is mooted by the fact that he paid for the art to be appraised, and such appraisal is "well underway."

In reply, the Wife argues the positions taken by the Husband are "extreme." As to support, she argues the Court must look beyond the Husband's recent reported income to ascertain his ability to pay support and meet their status quo expenses. On the issue of counsel fees, the Wife reiterates her financial position and the Husband alleged wealthy status and position as monied spouse and offers further legal fee invoices. Finally, the Wife further contends the issue of the appraisal is not moot and that this Court must direct the Husband cooperate with the appraisal and pay for same from separate property and that the appraisal that was done only included marital artwork and not his separate property artwork.

The Court held multiple appearances in relation to these motion sequences. Upon being fully submitted, this Court issued a Notice directing the Wife file an updated net worth statement and that the Husband shall have the right to submit papers responsive to the updated filing. The Wife did so, and the Husband likewise offered opposition to the Wife's updated net worth statement as being both unreliable and inflated. The Court now resolves the Wife's requests.

I. Temporary Maintenance

The Court's determination of temporary maintenance is guided by the Domestic Relations Law and the principle that such a temporary award is meant to "assure that the reasonable needs of the dependent spouse are met during the pendency of a divorce proceeding." (DRL § 236[B][2][5-a];Brenner v Brenner, 52 AD3d 322, 323 [1st Dept 2008] citing, Ritter v Ritter, 135 AD2d 421, 422 [1st Dept 1987]).

At issue herein is the fact that in this long-term marriage the parties did live a luxurious life; their Net Worth Statements indisputably prove this with reference to just the assets held by the Husband and the parties' real estate and artwork. However, this luxurious life under no logic can be supported solely by the Husband's current reported income. His prior income from working in the financial services industry and the use of assets had previously supported the family's lifestyle. Currently, it is also alleged the Husband is spending down marital assets to fund the parties' lifestyle.

While reported income is a powerful guide toward ascertaining income for the purposes of calculating temporary maintenance, the Court retains the discretion to look at other sources, including but not limited to, assets (both income-producing and not) and investments. (DRL §§ 240[1-b][5][i]-[ii], [iv]). Further, the Court notes that it, "is not bound by the amount that was, in fact, reported on the parties' income taxes." (D.L. v K.G., 41 Misc 3d 1231[A][Sup Ct, Kings Cnty 2013][Thomas, J.]; see Leonx v Weberman, 109 AD3dc 703, 703-704 [1st Dept 2013]["A court need not rely upon the party's own account of his or her finances, but may impute income based upon the party's past income or demonstrated earning potential. The court properly took into account plaintiff's income from his investments, voluntarily deferred compensation, and substantial distribution."]). Statute provides,

In determining the amount of income that may be attributed or imputed, the court shall consider the specific circumstances of the parent, to the extent known, including such factors as the parent's assets, residence, employment and earning history, job skills, educational attainment, literacy, age, health, criminal record and other employment barriers, record of seeking work, the local job market, the availability of employers willing to hire the parent, prevailing earnings level in the local community, and other relevant background factors such as the age, number, needs, and care of the children covered by the child support order. Attribution or imputation of income shall be accompanied by specific written findings identifying the basis or bases for such determination utilizing factors required or permitted to be considered pursuant to this clause. (DRL § 240[1-b][5][iv]).

Here, the lavish lifestyle of the parties, the Husband's historical earnings and extensive assets require this Court to look far beyond his tax return to ascertain his income in awarding temporary maintenance. Similarly, the Wife's prestigious educational attainment, demonstrated job skills by the fact that she has begun a business that is generating income demonstrates that the Husband's argued imputation of $50,000.00 of income to the Wife is appropriate. While the Wife states her income is closer to $25,000.00, this Court finds that with reference to the aforesaid statutory factors and circumstances of this case, specifically the Wife's freed up time by the emancipation of the parties' children and the Wife's educational credentials, she can earn $50,000.00 and such an imputation is appropriate.

The parties' joint 2022 income tax returns demonstrate a reported adjusted gross income of $15,984.00 per year. The parties draft joint 2023 returns show an adjusted gross income of $94,947.00. To demonstrate just how unreliable the adjusted gross income figure is in determining the Husband's income is the fact that he admits he earns $200,000.00 from his consulting work.

Thus, the Court looks beyond the adjusted gross income, and considers, inter alia, the Husband's reported investments of $24,518,212.34, $215,052.62 in checking accounts, and interest in the trust. The Court notes that it cannot ascertain the exact liquidity of the investments; however, the Husband's ability to sustain his own reported monthly expenses of $25,578.94 per month or $306,947.28 per year demonstrate that there is substantial liquid character to these assets. In addition to this, the Husband holds access to substantial illiquid assets both marital and allegedly separate. Likewise, it is credibly alleged by the Wife that the Husband had previously withdrawn from a traditional wage role and sustained the family on managing investments.

The task of imputing income can be difficult because it "is often the case, the temporary award is based on conflicting affidavits, offering differing versions of the parties' finances and the standard of living they enjoyed during the marriage." (Konecky v Kronfeld, 2 AD3d 371, 371 [1st Dept 2003]). This is in contrast with the full exploration of the parties' finances that a trial provides. Thus, based upon the submissions, arguments, unique facts of this family, the marital status quo, the Husband's status as a student and a consultant, and the financial circumstances (particularly, the enormity of the assets held in the Husband's name and their liquidity) this Court finds the imputation of income to the Husband in the sum of $800,000.00 is both reasonable and appropriate for this pendente lite award.

In addition to incomes, the Court is guided by the "reasonable" expenses of the parties. [*4](Brenner, supra at 322-323). Importantly, a Court — not a matrimonial litigant — determines the reasonableness of the reported expenses. (Id. at 322 ["Contrary to defendant's claim, the court did not accept all of plaintiff's expenses as reasonable"]; see also, Hearst v Hearst, 15 Misc 3d 1105[A][Sup Ct, NY Cnty 2007, Richter, J.]["[T]he Court subtracts $ 16,011, which represents the monthly cost of maintaining the four investment properties that the Court concluded constituted an unreasonable expense."]). The Wife reports monthly expenses of $45,537.40 and the Husband claims approximately $25,000.00 in monthly expenses. The Husband offers a robust attack on the Wife's reported expenses. The Court finds the sum reported by the Wife to be to some degree unreasonable because, inter alia, it reports extensive sums that are paid for by the Husband, including housing costs, and contains many expenses that are not reasonable monthly recurring expenses. The law provides temporary maintenance is crafted to cover the "reasonable" expenses of the payee, but not every expense of the payee.

The formula for calculating temporary maintenance is set forth in DRL § 236(B)(5-a). In the first instance, the Court notes the currently operative statutory income cap placed on temporary maintenance calculations is $228,000.00 (hereinafter: the statutory cap). The Husband's imputed income is far more than the statutory cap. In such circumstances, DRL § 236(B)(5-a)(d) instructs: first, the Court should first calculate temporary maintenance under the statutory cap; and second, that the court may consider income exceeding the statutory cap in its calculation with reference to the factors set forth in subsection (h).

Here, the annual maintenance award to the Wife under the statutory cap is $58,400.00 per year or $4,866.67 per month. However, this Court finds based upon the lifestyle of the family, the reported expenses by both parties, the undisputable immense assets held by the Husband, and the current reasonable needs of the parties shows such an award is wholly improper and unjust. Accordingly, the Court finds the appropriate cap for temporary maintenance calculations to be $650,000.00. (DRL § 235[B][5-a][h][a] et seq.; see Klauer v Abeliovich, 148 AD3d 617 [1st Dept 2017][Affirming use of $800,000.00 adjusted cap]). Under the adjusted cap, the Wife's temporary maintenance award would be $185,000.00 per year or $15,416.67 per month.

In an exercise of discretion, the Court further deviates downward from this sum as such an award, with consideration of the Husband's continuing payment of carrying charges on marital real estate, renders the presumptive award excessive. Accordingly, under these circumstances, the Court finds the appropriate temporary maintenance award to be $14,500.00 per month.

This award is retroactive to the date of filing, to wit, July 12th. This results in total presumptive arrears of $72,500.00. The record before the Court does not provide a clear answer as to what, if any, voluntary payments were advanced to the Wife by the Husband since this application was made; however, any such payments made by the Husband from his alleged separate property shall result in a dollar-for-dollar reduction against the aforesaid presumptive arrears. Accordingly, the Wife's request for temporary maintenance is GRANTED to the extent of awarding her $14,500.00 in temporary maintenance per month.

This sum is in addition to the Court's direction that the Husband continue to pay the carrying costs of the marital real estate. Generally, housing costs are "encompassed in the maintenance and child support awards." (Blake v Blake, 164 AD3d 1111, 1112 [1st Dept 2018]; see also, Khazaneh v Khazaneh, 217 AD3d 629 [1st Dept 2023]). Notwithstanding, this general rule is not ironclad, The Court can properly award both temporary maintenance and housing costs where it declines to follow the statutory guidelines and explains it is doing so. (See Blake, [*5]supra at 1112 ["However, the court erred by, without explanation, ordering defendant to pay carrying costs on the marital residence and vehicle expenses, in addition to the temporary maintenance and child support awarded"][internal emphasis supplied]; Anonymous v Anonymous, 63 AD3d 493 [1st Dept 2009]; see also, Yunis v Yunis, 94 NY2d 787, 788 [1999]["[P]ayments of [carrying charges] are not required by the statute to be considered temporary maintenance, and may be solely considered child support."]). Apart from the Court's explicit consideration of the Husband's payment of housing costs in analyzing the parties' expenses and in calculating maintenance, the Court also notes that the housing costs of the party would result in the virtual evaporation of the Wife's entire maintenance award if she were forced to pay them as well. It is also of important note that the Husband himself enjoys use of the marital real estate. Accordingly, both law and equity support an order that directs the Husband, in addition to the monthly temporary support award, also continue to pay the carrying charges on the marital real estate. Tellingly, this is consistent with the long-term marital status quo and necessary under this family's particular financial circumstances.

II. Interim Counsel Fees

Domestic Relations Law section 237(a) provides,

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. Applications for the award of fees and expenses may be made at any time or times prior to final judgment.

In awarding interim fees, the Court is guided by the foundational principle that "the objective that marital litigation is best shaped not by the power of the bankroll but by the power of the evidence." (O'Shea v O'Shea, 93 NY2d 187, 192 [1999]). The Court wields vast discretion in this area of law. (Id.). In arriving at an award for an interim fees request, "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." (De Cabrera v Cabrera-Rosete, 70 NY2d 879, 881 [198]; see e.g., Charpie v Charpie, 271 AD2d 169 [1st Dept 2000]). Here there is no question that the Husband is the monied spouse. He has not rebutted the statutory presumption in favor of fees; thus, this Court turns to its discretionary power to award interim counsel fees.

In the first instance, the Court notes that in this motion sequence the Wife has already been awarded $75,000.00 in interim fees. The Wife provides a retainer agreement for her counsel demonstrating an initial retainer in the sum of $15,000.00. She presents billing statements. Her counsel asserts "we are owed no less than $88,0786 through June.". Importantly, this sum was before this Court awarded the $75,000.00 interim award on August 14. However, as of October 3, 2024, the Wife has a total amount due of $127,486.85.

In determining what sum is reasonable under the circumstances, the Court considers the [*6]age of the case, the complex nature of this case — especially the issue of translation of the parties' French prenuptial agreement and the underlying different property regimes that define the agreement. Likewise, within the context of litigation, this matter is headed toward a hearing and the parties seem to be unable to reach a settlement, even with the direct aid of this court. The Wife cannot be forced into submission by legal fees. Most relevant herein, is the fact that the Husband has been historically and currently is in a vastly superior financial position than the Wife.

In reaching the instant fee award, the Court puts emphasis on the vast amount of assets held in the Husband's name. Moreso, while this is the first motion sequence, this is a case that commenced on or about October of 2022. The parties made strides to keep this case off the litigation path; however, it is now on that very path. The record before the Court supports the notion that both parties have played a role in delaying this matter or otherwise holding out settlement. Of relevant importance is the Wife's position on the parties' prenuptial agreement. While the interpretation of same will be resolved after hearing; based upon the current record and submissions, the Court is skeptical about the validity of the Wife's proffered interpretation when compared to those offered by the Husband.

In weighing these factors, the Court finds it appropriate to award the Wife interim fees in the sum of $125,000.00. When reference is made to the Court's interim award, that results in an effective award of $200,000.00 in interim fees for the Wife under this motion sequence. Accordingly, the Wife's request for interim counsel fees is GRANTED to the extent that she is awarded an additional $125,000.00 in counsel fees, subject to reallocation and to be paid from non-marital assets.

III. Art Appraisal

Matrimonial actions are defined by broad disclosure. Further, the determination of what property is marital and separate is solely in the province of the Court — not any party to a matrimonial action. Thus, while the Husband may assert there are separate art assets; this Court has not made such a finding — nor has it been called upon to do so by the Husband. Accordingly, to the extent that the Husband's previous appraisal did not include an appraisal of his alleged separate property artwork, he shall have all disputed separate property artwork appraised as well. This is especially relevant in this case as the ultimate interpretation of the parties' prenuptial agreement will have a major impact on which property is defined as marital and which is separate property — indeed, that is virtually the entire substance of the ordering in the prenuptial agreement.

Finally, the vast financial difference between the parties demonstrates it is appropriate and in line with the marital status quo to direct the Husband to pay for 100% of this expanded appraisal — further evidence of this being appropriate is that the Husband voluntarily paid for the first appraisal. Accordingly, the Wife's request for the art appraisal is GRANTED to the extent detailed herein.