Defendant-Husband moved under motion sequences 001 and 002 for various forms of relief including, inter alia, an award of pendente lite maintenance, interim counsel fees, and parenting time. Plaintiff-Wife under both sequences cross moves and opposes the Husband's applications. Under motion sequence 001 and 002 the Wife seeks, inter alia, to have this Court maintain its current interim maintenance award and sanctions. Both parties' applications likewise seek various forms of custodial related relief. These motions sequences are now determined together in this Decision.

This Court by separate interim orders and decisions has resolved all but three (3) requests underlying the parties' competing motions in motion sequences 001 and 002. Specifically, the [*2]Court has reserved decision on the Husband's request for counsel fees, the Wife's request for sanctions, and a final pendente lite determination of maintenance. The Court defers all custodial related relief to trial, except to the extent that the Court retains the ability to modify custody on an interim basis based upon the best interests of the Children. (See DRL § 240[1]["In any action or proceeding brought [. . .] for a divorce [. . .] the court [. . .] shall enter orders for custody and support 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 . . . "]).

By interim order of this Court, Defendant was awarded $1,800.00 per month in maintenance. This amount was arrived at after Defendant's basic child support obligation was reduced therefrom. The Court now resolves the final pendente lite maintenance award to Defendant; in doing so, the Court also evaluates his child support obligation.

The Husband's first 2023 W-2 reveals an income of $74,097.16, his second 2023 W-2 shows an income of $5,000.00, his first 1099 shows an income of $16,500.00, his second 1099 shows an income of $4,000.00 and his third 1099 shows an income of $4,550.00. This results in a 2023 gross income of $104,147.16 for the Husband. The Wife's 2022 W-2 shows an income of $294,148.22.

Adjusting for statutory deductions pursuant to the Child Support Standards Act results in a "CSSA Income" of $92,641.25 for the Husband and $268,137.23 for the Wife.

Maintenance is always calculated before child support. (DRL §§ 236[B][5-a][c][1][f], [2][f]). In determining an award of temporary maintenance, the Court seeks to "ensure that a needy spouse is provided with funds for his or her support and reasonable needs pending trial. It is not to determine the correct ultimate distribution." (Jin C. v Juliana L., 137 AD3d 1063, 1064 [2d Dept 2016]; see e.g., Albanese v Albanese, 234 AD2d 489, 490 [2d Dept 1996]). Statute, discretion, and the specific circumstances of the family before the Court guide this determination. (DRL § 236[B][5-a], et seq.).

Under controlling law, the incomes for these maintenance calculations are "capped" at $228,000.00, as of March 1, 2024. Moreso, even where, as here, the payor's income exceeds the income cap, the Court still must first determine the guideline maintenance amount. (DRL § 236[B][5-a][d][1]).

Here, the Wife is the payor, and the Husband is the payee. (See DRL § 236[B][5-a][b][1]-[2]). Applying the maintenance guidelines to the parties' incomes up to the $228,000.00 cap provides for an annual maintenance obligation for the Wife of $35,615.25 per year or $2,967.94 per month.

Once the guideline amount has been determined, the court has the discretion to award maintenance above the cap — with reference to the factors outlined in DRL § 236(B)(5-a)(h). (DRL § 236[B][5-a][d][2]; see Warshaw v Warshaw, 173 AD3d 582, 583-584 [1st Dept 2019]). Here, the application of the statutory cap would be both inappropriate and unjust when considering the circumstances of the case, including but not limited to, the disparity in the parties' wealth, the age of the parties, the marital status quo, and the equities of the case. The Court finds the appropriate cap under these circumstances to be $300,000.00. Under the adjusted cap, the Wife's guideline maintenance obligation is $51,670.14 per year or $4,305.85 per month.

For the purposes of calculating child support, an award of temporary maintenance is subtracted from the payor's income and added to the payee's income (CSSA income). (DRL § 236[B][5-a][c][2][f]). Therefore, in this case, the Wife's CSSA income is $216,467.09. The [*3]Husband's CSSA income is $144,311.39. The Husband's CSSA income represents 40% of the combined parental income (CPI). The Wife's CSSA income represents 60% of the CPI. Like maintenance, even where the parties' income exceeds the cap, the Court must still provide the guideline temporary basic child support obligation. (DRL § 240[1-b][c][1]-[2]). In this matter the applicable child support percentage is twenty-five percent (25%) as the parties' share two children in common. Accordingly, under the statutory cap of $183,000.00, the guideline child support obligation for the Husband is $18,300.00 per year or $1,525.00 per month. Like the maintenance award, the temporary child support award here would be inappropriate and unjust under the circumstances of this case. Accordingly, in an exercise of discretion, the Court increases the cap to $300,000.00.

Under the adjusted cap, the Husband's basic child support obligation is $30,000.00 per year or $2,500.00 per month.

When considering the Husband's entitlement of $4,305.85 per month with the Husband's child support obligation of $2,500.00 per month, the result is an obligation on the Wife to pay the Husband the amount of $1,805.85 in pendente lite maintenance. Accordingly, the Husband is awarded pendente lite maintenance in the sum of $1,805.85 per month; likewise, he shall be responsible for 40% of all add-on expenses with the Wife being responsible for 60% of all add-on expenses.

The Husband seeks an award of counsel fees. The Wife, in opposition, argues that this Court should deny the request for his failure to attach his statement of net worth to his moving papers under motion sequence 002 — to be clear, he attached his Net Worth Statement as Exhibit A of his moving papers under sequence 001. Nevertheless, the Wife contends, "[t]he failure to include a statement of net worth when making a counsel fee application mandates a denial of the application."

Prior to reaching the merits of the Husband's claim under Domestic Relations Law section 237, the Court addresses the Wife's arguments that "ab initio" review of counsel fees is precluded. The Wife's argument is without merit and overreads her cited authority.

In the first instance, the failure to include a statement of net worth when moving for counsel fees does not result in the denial of such application as a matter of law. (Diane Zelenka v Adam B. Hertz, 2024 NY App Div LEXIS 4282, at *2-3 [2d Dept August 7, 2024]; Matter of Antoine L. v. Virginie F., 212 AD3d 502, 502 [1st Dept 2023]["Contrary to the Husband's contention, the Wife's failure to include with her counsel fee application a statement of net worth in the prescribed form (see 22 NYCRR 202.16[k][2]) did not mandate denial of the application as a matter of law."]; see also, Perrone v Perrone, 224 AD3d 518, 519 [1st Dept February 1, 2024]["Contrary to defendant's contention, plaintiff's failure to include a completed statement of net worth with her motion was not fatal to the request for child support (see 22 NYCRR 202.16 [k] [2])."]; Levy v Levy, 272 AD2d 207, 208 [1st Dept 2000]).

Such a bright-line rule is thoroughly refuted not only by case law but also by statute and public policy. The Wife's strict standard would negate the Legislature's intent in enacting CPLR § 2001, which provides for the Court's ability to overlook procedural defects "[a]t any stage of an action." (See Adam B. Hertz, supra at *2). Likewise, it is the well-established policy of the state that "[t]he law favors the resolution of cases on the merits. (Tiger v Bolton, 150 AD2d 889, 890 [3d Dept 1989]; Mitchell v Mid-Hudson, 213 AD2d 932, 932 [3d Dept 1995]["We reiterate [*4]our preference that cases be decided on their merits."]; see Arred Enterprises Corp. v Indemnity Ins. Co., 108 AD2d 624, 626 [1st Dept 1985]["The law favors disposition on the merits"]; Castro v Liberty Bus Co., 435 NYS2d 340, 341 [2d Dept 1981]["[T]his court will look beyond the misnomer to review it on the merits"]).

A review of the case law cited by the Wife equally confirms her proposition is without merit.

First, her reliance on M. v M., is misguided as the facts are completely divergent. (44 Misc 3d 1121[A][Sup Ct, NY Cnty 2014][Gesmer, J.]). Here, the only defect is that the Husband did not attach a Net Worth Statement to his moving papers (under sequence 002 — again, Exhibit A of Sequence 001 is his Net Worth Statement); the Court had a copy of same in its record. Contrastingly, in M. v M., the movant for fees provided none of the required documentation under the rule, as Justice Gesmer explained, "she did not attach to her motion a copy of her Net Worth Statement, her retainer agreement, and billing statements or other documentary proof of the money, if any, received on account of such attorney's fee [. . .]." (Id.). That is simply not the case here because the Husband did substantially comply with the statute by providing, inter alia, a detailed counsel affirmation of fees, invoices, a retainer, and other income documents.

Second, and most puzzlingly, as it relates to the Wife's second cited authority, the Court cannot find any holding in Crocker C. v Anne R., related to the counsel fee issue at bar. (2018 NY Misc LEXIS 430 [Sup Ct, Kings Cnty 2018][Sunshine, J.]).

Third, the Wife over reads the language of Rech v Rech. (122 AD3d 1286 [4th Dept 2014]). In Rech, the Fourth Department affirmed the Supreme Court's summary denial of the defendant's fees application for failing to supply an updated statement of net worth. (Id. at 1287). This does not mean that upon a submission of a fee application without an updated net worth statement denial is mandated; rather, it means the Court may do so.

If there is any doubt, the Rule itself permits the excusal of defects where there is "good cause shown." (22 NYCRR 202.16[k]; Levy, supra at 208 ["[T]he motion court had good cause to dispense with the requirement under 22 NYCRR 202.16 (k) that plaintiff submit a net worth statement."]; S.L. v D.E., 83 Misc 3d 1224[A] [Sup Ct, NY Cnty 2024][Chesler, J.][Granting application for fees despite no submission of net worth statement because "good cause" was shown]; c.f., D.I. v S.I., 2008 NY Misc. LEXIS 6033, at *13 [Sup Ct, Westchester Cnty 2008][Lubell, J.]). Here, good cause exists based upon the Husband's numerous productions in the record as to income and the parties' financial circumstances. Moreso, all of these documents were completely accessible to the Wife throughout the litigation. Accordingly, any technical defect is excused based upon the thorough financial picture the Husband painted. (See CPLR § 2001). Not finding good cause here would be nothing short of a miscarriage of justice. The Wife's position in effect asks this Court to blind its eyes to documents within its own record; more concerning, in the name of strict compliance with procedural rules, the Wife urges this Court to ignore the merits and the clear legislative intent underlying the Domestic Relations Law that the monied spouse's wallet should not trump the non-monied spouse's ability to defend and prosecute their rights in a divorce action.

In cases where there has been no statement of net worth attached to the fee application, the Court must be enabled by the submissions to "accurately assess[] the parties' financial disparity." (Id.). This Court explicitly finds such evidence has been shown by the Husband's separate submission of a net worth statement and extensive W-2 and 1099 submissions to this Court. (See Adam B. Hertz, supra at *2[Considering separately filed net worth statement in [*5]analyzing fees application]). Likewise, the Husband has complied with the requirements of submitting bills and the requisite counsel affirmation. (See 22 NYCRR § 202.16[k][3]; Plotkin v Eposito-Plotkin, 216 AD3d 676, 679 [2d Dept 2023]). The Court notes further that the Husband's counsel submitted an extremely detailed and thorough fee affirmation in support of the application. Thus, based upon the submissions provided and the controlling authority, this Court will proceed to the merits of the Husband's fee application.

If there is any doubt, the Husband did indeed include a net worth statement under motion sequence 001, which made the initial request for counsel fees; thus, even in approaching motion sequence 002's request for fees, the Wife had full access to the Husband's Net Worth. Indeed, the Wife's hardline position would be such a strain on judicial economy it would require blinding itself in resolving sequence 002 but then look to the Husband's net worth statement for sequence 001. This would result in absurdity and surely does not serve the legislative intent behind 202.16 which is to ensure full financial disclosure when there are contested financial issues, and a spouse seeks fees. (See Frankel v Frankel, 2 NY3d 601, 605 n. 1 [2004]["The Committee further observed that if applications for legal fees are denied or deferred, 'the attorney for the nonmonied spouse is left not only without payment for services rendered but without reasonable expectation as to how or whether payment will be made. Considering the protracted nature of divorce actions, both client and attorney are left in limbo for an indefinite period of time, a circumstance which can drive a wedge between attorney and client.'"][internal citations omitted]; Levy v Levy, 272 AD2d 207 [1st Dept 2000][Finding good cause to excuse defects under 22 NYCRR 202.16 because there was no genuine issue as to the parties' financial circumstances.]).

In any event, the motions are being considered together and thus the Court considers the statement of net worth provided in motion sequence 001.

It is well-settled that Domestic Relations Law section 237 creates a rebuttable presumption that the monied spouse shall pay for the reasonable attorney's fees incurred by the non-monied spouse. (DRL § 237; see e.g., O'Shea v O'Shea, 93 NY2d 187 [1999]).

The Husband's first 2023 W-2 reveals an income of $74,097.16, his second 2023 W-2 shows an income of $5,000.0, his first 1099 shows an income of $16,500.00, his second 1099 shows an income of $4,000.00 and his third 1099 shows an income of $4,550.00. This results in a 2023 gross income of $104,147.16 for the Husband. (NYSCEF Doc. No. 59). The Wife's 2022 W-2 shows an income of $294,148.22. (Id.; NYSCEF Doc. No. 46). Here, for the purposes of interim counsel fees the Wife is the monied spouse.

The Husband requests $123,353.07 for both prospective and past fees. The Husband has presented a retainer agreement in the amount of $10,000.00 and has an outstanding balance of $52,093.18 as of September 2024.

"There is a rebuttable presumption that interim counsel fees shall be awarded to the less monied spouse (see Domestic Relations Law § 237 [a]), and 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." (Pezzollo v Pezzollo, 173 AD3d 918, 918 [2d Dept 2019] citing, Prichep v Prichep, 52 AD3d 61, 62 [2d Dept 2008]). In awarding counsel fees, this court has discretion to fashion an award guided by the equities of the case, the financial circumstances of the parties and the respective merits of the parties' applications. (See e.g., Novick v Novick, 214 AD3d 995 [2d Dept 2023]; Ning-Yen Yao v Kao-Yao, 147 AD3d 624 [1st Dept 2017]).

Here, the Wife has failed to rebut this presumption. The following specific circumstances of this case guide this Court's award of fees. First, the Court must take note of the fact that the [*6]Wife earns almost three times what the Husband earns. Second, the Wife's cross-motion for sanctions (as discussed below) was without merit, as was her unreasonably narrow reading of 22 NYCRR § 202.16 — especially in light of recent Appellate Division holdings (discussed supra) clarifying her position is untenable. Third, and most unique to this case, is the specific attorney communications of this case. This case has presented the Court with frankly concerning correspondence between counsel.

While both counsel for the Husband and the Wife, in and out of court, have engaged in concerning conduct, the Wife's counsel has done so to an alarming degree. The Wife's counsel has, at numerous times, sent intimidating e-mails referencing the rules of professional conduct. The Court notes that the intimidating references to the Rules of Professional Conduct was on full display in the Wife's affirmation in support of sanctions

Likewise, the Wife's counsel's e-mails were extremely lengthy and in nature and often demanded much time to read, consult with one's client, and respond. Furthermore, the Wife's counsel went as far as literally presenting an argument in motion papers that the Husband's branch of his application requesting OurFamilyWizard should be denied because of purported grammatical errors or missing words.

It became abundantly clear at oral arguments that despite this Court in-fact granting this relief earlier, the Wife's counsel engaged in hyper-analyzing the words of this Court's order which prevented the Court's directive from taking hold. At oral argument this hyper-analyzing was discussed and none of the arguments raised were reasonable readings of the simple directive to enroll in OurFamilyWizard. This, in effect, prevented the use of OurFamilyWizard and contravened the Court's clear directive. This conduct is an exemplar of the conduct engaged in by the Wife's counsel.

This type of overzealous lawyering is to the detriment of both that lawyer's client and the other party's legal fees as they are forced to respond to these meritless arguments and dilatory positions. This is clearly what happened here when reference is made to the attorney invoices and affirmation which demonstrate the labor and fees incurred based on these communications and juvenile arguments.

Further, this type of lawyering harms rather than promotes the best interest of the child. Whether dealing with the OurFamilyWizard issue, scheduling, travel or other parent communications and concerns, at every turn the Wife's counsel made everything more difficult and continued to unnecessarily raise the temperature. This in turn made practical, reasonable, cooperative discussion impossible. The Court expects counsel, even in matters such as these, to rise above the fray, to engage cooperatively and respectfully, and to come up with sensible and levelheaded solutions particularly for the benefit of children, and to reduce everyone's litigation costs.

In consideration of these unique circumstances and the unique conduct of counsel herein, the Court finds it appropriate and reasonable to award interim counsel fees in the sum of $100,000.00. Accordingly, the branch of the Husband's Order to Show Cause seeking interim counsel fees is GRANTED to the extent that he is awarded $100,000.00 in interim counsel fees, subject to reallocation at any time by this Court.

The Wife cross moves for sanctions. She argues that the Husband's frivolous conduct is that he "(i) makes countless material false statements, (ii) is without merit as a matter of law, and (ii) is replete with bare accusations that are clearly designed to malicious injure Plaintiff."

Sanctions are governed by Part 130 Rules, specifically, 22 NYCRR 130-1.1. Therein, the Rule's subsection (a) provides,

[t]he court, in its discretion, may award to any party or attorney in any civil action or proceeding before the court, except where prohibited by law, costs in the form of reimbursement for actual expenses reasonably incurred and reasonable attorney's fees, resulting from frivolous conduct as defined in this Part. In addition to or in lieu of awarding costs, the court, in its discretion may impose financial sanctions upon any party or attorney in a civil action or proceeding who engages in frivolous conduct as defined in this Part, which shall be payable as provided in section 130.3 of this Part. (Id.)

The Rule provides three definitions for frivolous conduct. 22 NYCRR 130-1.1(c). Specifically, "conduct is frivolous if: (1) it is completely without merit in law or fact and cannot be supported by a reasonable argument for an extension, modification or reversal of existing law; (2) it is undertaken primarily to delay or prolong the resolution of the litigation, or to harass or maliciously injure another; or (3) it asserts material factual statements that are false." (Id.) In determining whether conduct is frivolous the Rule directs,

the court shall consider, among other issues, (1) the circumstances under which the conduct took place, including the time available for investigating the legal or factual basis of the conduct; and (2) whether or not the conduct was continued when its lack of legal or factual basis was apparent, should have been apparent, or was brought to the attention of counsel or the party. (Id.).

Here, the Court does not find the Wife's contentions with any merit. She is the party that raised meritless arguments — not the Husband. Accordingly, the Wife's Cross-Motion for sanctions is DENIED.

The Court strongly cautions the Wife's counsel that, "[f]rivolous conduct shall include the making of a frivolous motion for costs or sanctions under this section." (22 NYCRR 130-1.1).