The parties were married on July 17, 2010, and share two unemancipated children in common, namely, W.B. (Born: XX XX, XXXX) and A.R. (Born: XX XX, XXXX) (collectively referred to hereinafter as "the Children"). On December 3, 2021, Plaintiff, M.D.R., commenced the instant-matrimonial action for divorce. (NYSCEF Doc. No. 1). Defendant, M.A.G., filed an Answer and Counterclaim and the action was thus joined. (NYSCEF Doc. No. 2).

Plaintiff moved by Order to Show Cause on June 30, 2023, seeking this Court enter an [*2]order awarding, inter alia, pendente lite joint-decision making authority over major decisions related to the Children; a temporary access schedule; a holiday and vacation schedule; a schedule of FaceTime access for Plaintiff and the Children "on all non-transitional days;" a direction that Defendant not discuss the pending divorce proceedings with or in the presence of the Children; and direction that Defendant not disparage Plaintiff directly to or in the presence of the Children. (NYSCEF Doc. No. 15). This Court conformed the Order to Show Cause on July 19, 2023. (NYSCEF Doc. No. 41).

Thereafter, Defendant cross-moved by Notice of Cross Motion dated August 15, 2023. (NYSCEF Doc. No. 46). Within her cross-motion Defendant seeks an order, inter alia, directing the maintenance of the status quo as it relates to custody, pending the completion of the Forensic report;^[FN1] production of a series of mental health records to the Forensic and counsel; awarding Defendant pendnete lite unallocated support in the amount of $19,175.00 per month (retroactive to April 2023); directing Plaintiff to continue to pay for add-on expenses incurred for the benefit of the children, maintenance of the family's insurance policies, and all costs related to the parties' Audi Q7; awarding Defendant $512,652.85 in interim counsel fees, without prejudice for future application; directing neither party discuss the pending proceeding with or in the presence of the children; and that neither party disparage the other, or their extended family, to or in the presence of the Children. (Id.).

Much of the relief requested is now moot based upon subsequent orders of this Court. Specifically, both parties' requests for non-disparagement order and an order prohibiting the discussion of litigation with the children (or in their presence) was resolved by Order of this Court dated June 26, 2024 (NYSCEF Doc. No. 100). Accordingly, those respective applications are DENIED as moot.

Regarding parenting time, the issue of interim access was resolved by Order of this Court dated June 26, 2024 (NYSCEF Doc. No. 100). That document provides for a "5/14" regular parenting time schedule between Plaintiff and the Children. (Id.). Accordingly, Plaintiff's request for an interim access schedule is DENIED as moot.

The issue of a summer/vacation schedule is held in abeyance consistent with this Court's direction and order on June 26, 2024 (id.), that parties submit a stipulation or proposed orders on summer access by July 2, 2024.

Defendant's requests for an Order directing the custodial status quo be maintained until the forensic report is finished is mooted now that the forensic report has been released. The report was completed on November 20, 2023. Accordingly, Defendant's request is DENIED as moot. Likewise, the portion of Defendant's application seeking production of Plaintiff's medical records to the Forensic is DENIED as moot.

The following issues, which are addressed below, are left unresolved: (1) Plaintiff's request for FaceTime access; (2) Plaintiff's request for pendente lite joint-custody; (3) Plaintiff's request for a holiday access schedule; (4) Defendant's request for production of Plaintiff's medical records; (5) Defendant's request for an Order directing Plaintiff to pay/contribute toward pendente lite unallocated support, add-on expenses, carrying charges on the parties' Audi Q7, and the party's insurance; and (6) Defendant's request for counsel fees.

I. Plaintiff's Requests for Pendente Lite Joint-Custody, FaceTime Access and a Holiday Schedule

Plaintiff argues he is seeking "reasonable access" the parties' Children because Defendant "will never co-parent with [him] or that she and [the Children] 'won't be around [] either way until ordered to do so by the Court.'" (Pl. aff. at ¶¶ 3-4 [NYSCEF Doc. No. 16]; Pl. Ex. 1 [NYSCEF Doc. No. 18]).

Defendant counters arguing Plaintiff was an "absentee" father, suffers from addiction and mental health issues and further that Plaintiff has a "blatant disregard for the Children's best interests" and charges Plaintiff with taking "unreasonable positions" as to custody and parenting time. (Def. aff. at ¶¶ 5, 10 [NYSCEF Doc. No. 47]).

The parties' respective applications present factual allegations that are starkly in contrast with the other.

"In all cases there shall be no prima facie right to custody of the child in either parent, but the court shall determine solely what is for the best interest of the child, and what will best promote its welfare and happiness, and make an award accordingly." (DRL § 70[a]). In arriving at a custody determination, the Court of Appeals has stated in no uncertain terms, "[o]ur precedent makes clear that custody determinations should 'generally' be made 'only after a full and plenary hearing and inquiry.'" (S.L. v J.R., 27 NY3d 558, 563 [2016] citing Obey v Degling, 37 NY2d 768, 770 [1975]). Here, the Court cannot ascertain the best interests of the Children as it relates to an award of legal custody without a full plenary hearing as there are such controverted factual assertions before this Court. Accordingly, Plaintiff's request for pendente lite joint custody is DENIED and the issue of legal custody is deferred to trial.

However, the Court of Appeals general rule is just that — a general rule. The issue of FaceTime access is one this Court can resolve prior to a full hearing. It is uncontroverted that Defendant currently functions as de facto residential custodian of the parties' children under their current "5/14" schedule.

The best interests of the child generally lie in his or her being nurtured and by both . . . parents and in order for the non custodial parent to develop a meaningful, nurturing relationship with his or her child, visitation must be frequent and regular. Absent extraordinary circumstances, where visitation would be detrimental to the child's well-being, a noncustodial parent has a right to reasonable visitation privileges. (Matter of Rodriguez v Silva, 121 AD3d 794, 795 [2d Dep't 2014] citing Pollack v Pollack, 56 AD3d 637, 638 [2d Dep't 2008])

Plaintiff as the de facto non custodial parent is entitled to "reasonable visitation." Accordingly, Plaintiff's request for FaceTime access "on all non transitional days" is GRANTED. Likewise, Plaintiff's request for an alternating holiday schedule is GRANTED to the extent that the parties' shall alternate all holidays, and are encouraged to agree as to which specific holidays each parent should have.

II. Defendant's Request for Plaintiff's Medical Documentation

Defendant requests an Order directing the production of certain mental health records.

Defendant argues production of these documents is necessary due to an alleged sex addiction, alcohol abuse, and mental health diagnoses of Plaintiff. (Def. aff. at ¶¶ 16-25 [NYSCEF Doc. No. 47]). Notably, nowhere is this issue addressed in Defendant's affirmation of law. (Def. affm [NYSCEF Doc. No. 48]).

Defendant's accusations of addiction are concerning given she previously stated, while not in the throes of litigation, "I don't believe you are an addict." (Pl. Ex. 21 [NYSCEF Doc. No. 63]; Pl. Aff. at ¶ 15 [NYSCEF Doc. No. 61]).

In addition to pointing out Defendant's inconsistent position as to Plaintiff's alleged addiction issue, Plaintiff he avers was being treated at the [REDACTED] for Bipolar Disorder "since August 2021.^[FN2] " (Pl. aff. at ¶ 9 [NYSCEF Doc. No. 61]). Consistent with this claim, Plaintiff offers a string of letters from [REDACTED] which corroborates his claim that he has been receiving treatment there since August 2021. (Pl. Ex. 5 [NYSCEF Doc. No. 22]). Importantly, the letter, signed by two professionals, states,

In our professional opinions, there is no medical or psychological reason that [Plaintiff's] access to his children should be restricted. During the course of therapy, [Plaintiff] has not exhibited symptoms of any behavior that would place either child at risk. [Plaintiff] should have no limitations on his parenting time with his two children, including liberal overnight access and the ability to drive his children. (Id.)

Since the onset of this litigation, Plaintiff's parenting time has continued to expand. The Children, through their counsel, have consistently represented an adoration and desire to spend time with Plaintiff. These facts make the professional conclusions from [REDACTED] even more probative as to whether Plaintiff's mental health/alleged addiction issues compromise his parental judgment. At this juncture, this Court has simply not seen proof which compels the need for production of the documents sought by Defendant. Indeed, the value those documents would have would likely be most helpful to the Forensic; however, the report is finalized and thus that point of argument is without any merit. Also, it is unclear if these allegations relate to Plaintiff's parenting abilities.

The First Department has recently made clear that demands for mental health records require consideration of the balancing test set forth in Mental Hygiene Law § 33.13(c)(1) — even in cases of child abuse and maltreatment. (Matter of J.J.D. v M.D., 2024 NY App. Div. LEXIS 2529, at *2 [1st Dep't May 7, 2024]). The Mental Hygiene Law provides, in relevant part, "pursuant to an order of a court of record requiring disclosure upon a finding by the court that the interests of justice significantly outweigh the need for confidentiality, provided, however, that nothing herein shall be construed to affect existing rights of employees in disciplinary proceedings." (Mental Hygiene Law § 33.13[c][1]). Here, based upon these circumstances, Defendant has not met this standard especially in light of the compelling proof in contradiction offered by Plaintiff. Accordingly, Defendant's request for the production of certain mental health records of Plaintiff is DENIED.

III. Defendant's Request for Pendente Lite Unallocated Support

Defendant cross-moves for an award of unallocated support and for carrying costs seeking an amount of $19,175.00 and a direction for plaintiff to pay add-on expenses for the Children. She argues, in sum, "Plaintiff earns $1,885,000.00 per year, and I believe his income continues to be on an upward trajectory [. . .] [m]y monthly expenses are approximately $50,365.00." (Def. aff. at ¶41 [NYSCEF Doc. No. 47).

Plaintiff contends in response, that because temporary maintenance is an income-based determination he should only be responsible for $3,383.00. (Pl. aff. at ¶ 34 [NYSCEF Doc. No. 61]). He also asserts Defendant is a former well-regarded attorney from the reputable firm Davis Polk & Wordwell ("Davis Polk") and that she is a graduate of Harvard Law School. (Id.). With regards to her current employment, Plaintiff asserts, "[Defendant] left DPW on her own accord, deciding she did not way to work anymore — she was not let go or counseled out" and he rejects Defendant's contention that the decision for Defendant to leave practice was a "joint decision." (Id. at ¶¶ 34-35). Defendant, with leave of court, submitted a supplemental affirmation updating the Court as to the parties' finances and further arguing for support and counsel fees. (Def. aff. [NYSCEF Doc. No. 89]).

The formula to determine temporary spousal maintenance outlined in Domestic Relations Law §236(B)(5- a)(c) is intended to cover all of a payee spouse's basic living expenses, including the costs of food and clothing, and other usual expense (See Vistocco v. Jardine, 116 AD3d 842 [2d Dept 2014]). Pursuant to DRL § 236(B)(5-a), courts must arrive at a presumptive award of temporary maintenance by first determining the parties' incomes, based on the parties' most recently filed tax returns and in accordance with the definition of income set forth in the Child Support Standards Act (see DRL § 240[1-b][b][5]). After this determination is made, the court must then perform a series of calculations using those figures. The final number that is derived through this process is the presumptive award.

While DRL §236(B)(5-a) sets forth formulas for the Court to apply to the parties' reported incomes in order to determine the presumptively correct amount of temporary spousal support, the Court has discretion to deviate upwards of the income cap where it finds that the award is inappropriate based upon a number of factors (See Warshaw v. Warshaw, 173 AD3d 582, 583-584 [1st Dept 2019] ["calculation of maintenance award over the income cap is not based on an 'automatic formula but is based upon a set factors enunciated in DRL 236 (b) (5-a) (h) (1)]; Caputo v. Caputo, 152 AD3d 643 [2d Dept 2017]). Deviation from the presumptive award, whereby a court orders the higher-income spouse to pay the lower-income spouse a greater or lesser amount, considers the parties' income disparity and the standard of living during the marriage.

In awarding temporary child support, the Court can but is not required to consider the CSSA guidelines (see DRL 240 [1-b][c]; Rubin v. Salla, 78 AD3d 504, 505 [1st Dept 2010]). Pursuant to the CSSA, to calculate the presumptive award of child support, the Court must first determine the combined parental income.

Defendant produces a Partnership Compensation report which reports a sum of compensation for the year of 2023 for Plaintiff of $2,579,266.30 and withholdings in the amount of $533,598.61 presenting an annual income in 2023 of $2,045,667.59. (Def. Ex. Y [NYSCEF Doc. No. 93]). Defendant also provides a 2023 W-2 which presents her income as $38,679.94. (Def. Ex. X [NYSCEF Doc. No. 92]).

The parties 2022 joint income tax return represents an income of $1,679,896.00. (NYSCEF Doc. No. 38). The parties 2021 joint tax returns represent an income of $1,594,045.00. (NYSCEF Doc. No. 39).

Defendant states in her supplemental filing that under new employment she is earning $265,000.00 as a base salary. (Pl. aff. at ¶ 2 [NYSCEF Doc. No. 89]). In addition, she received a "restricted stock unit award with an annual target value of $100,000.00 that vests over a three-year period." (Id.). The Court based upon this information finds the appropriate income [*3]attributable to Defendant to be $298,333.33. This results in a minimum monthly income for Defendant of $24,861.11.

The asserted $50,365.00 in monthly expenses proffered in Defendant's net worth statement is not an accurate description of what Defendant is actually paying for. (NYSCEF Doc. No. 39]). Defendant admits in her affidavit that Plaintiff pays the following expenses:

$12,865.00 per month in rent, utilities, and renter's insurance;

$134.00 per month in life, health, and automotive expenses;

$3,662.00 per month in unreimbursed medical expenses;

$13,904.00 per month for the Children's educational, extracurricular, and camp expenses;

$655.00 per month in automotive expenses.

(Def. aff. at ¶ 41 [NYSEF Doc. No. 47]).

In addition to these sums, Defendant also admits that Plaintiff pays $7,000.00 per month in voluntary support. Notably, within Defendant's statement of net worth she claims the following monthly expenses that she admits in her affidavit are in-fact paid for by Plaintiff: (1) $12,195.00 in rent; (2) $660.00 in utilities; (3) Insurance (life, health, and automotive) in the amount of $235; (4) $3,632.00 in unreimbursed medical expenses; and (5) $12,149.00 in educational costs for the Children. (NSYCEF Doc. No. 39). Adjusting for these amounts ($50,365.00-$35,871.00) results in a monthly expense of $14,494.00 not covered by Plaintiff currently.

For the purposes of these calculations the Court will use the Plaintiff's income of $2,045,667.30. The Defendant's income, as stated above, will be $298,333.33 This results in a combined parental income of $2,344,000.63. Plaintiff holds 87.3% of the income and Defendant holds 12.7%.

The current statuary cap of $228,000.00 for maintenance and $183,000.00 for child support is wholly inappropriate to be applied to this family given their enormous wealth and established lifestyle. Upon consideration of the various factors outlined in the DRL, specifically, the present and future earning capacities of the parties and the standard of living established during the marriage (see DRL § 236[B][5-a][h][1][b], [k]), the Court determines it is inappropriate to award the guideline maintenance and child support only up to the cap. Instead, the Court will utilize an adjusted cap of $650,000 for its calculations. (See. Klauer v Abeliovich, 149 AD3d 617 [1st Dept 2017][upholding use of $800,000 adjusted cap]). The Court therefore finds that based upon the well-established affluent lifestyle of the parties and their Children; the cap shall be raised to $650,000.00. Under the adjusted cap, the Plaintiff's unallocated monthly support obligation is $16,787.41. Accordingly, this Court finds it appropriate under these parties' circumstances that Plaintiff be directed to pay Defendant the sum of $17,000.00 per month in unallocated support, subject to reallocation.

The parties shall pay for all add-on expenses incurred on behalf of the Children in accordance with the above-referenced pro-rata shares (including but not limited unreimbursed medical expenses, childcare, camp, educational, religious, psychotherapeutic, orthodontic, dental, and tutoring costs). Accordingly, Plaintiff is directed to cover 87.3% of all add-on expenses and Defendant is directed to cover 12.3% of all add-on expenses (subject to reallocation).

As the amount of child support (which is included in the unallocated support above) is meant to cover shelter costs, an award of carrying costs and rent, especially in light of the monthly unallocated support award, for the marital residence (where the children reside) under [*4]this award would constitute impressible "double dipping." (See e.g., James v James, 169 AD2d 441, 442 [1st Dep't 1991]["Such a duplicative award is not contemplated by the statute and is improper, since the award of housing expenses is, in part, to ensure that shelter is provided for the children as a part of the basic child support obligation."]; Krantz v Krantz, 175 AD2d 863, 864 [2d Dep't 1991]["[W]e agree that the court erred when it directed him to pay both child support and the carrying charges on the marital residence, because this resulted in a double shelter allowance."]).

Accordingly, the Defendant's request for rent, carrying costs, and payments related to the Audi to be paid by Plaintiff is DENIED. Defendant shall be responsible for such payments based upon her income and the monthly support provided by Plaintiff. To be clear, Plaintiff's monthly obligation encompasses the $17,000.00 per month unallocated support amount and his pro-rata share of all of the Children's add-ons (unreimbursed medical expenses, childcare, camp, educational, religious, psychotherapeutic, orthodontic, dental, and tutoring costs).

IV. Defendant's Request for Counsel Fees

Domestic Relations Law section 237 subsection (a) provides, "[t]here shall be a rebuttal 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 commencement of the proceeding." Declining to award counsel fees here would pervert the plain meaning of section 237. Indeed, declining to award any fees would surely disable Defendant from "adequate representation."

Plaintiff is beyond any doubt the monied spouse in this family. He earns 87.27% of the combined parental income and has historically paid for almost every expense incurred by the family.

"There is a rebuttable presumptionthat 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, 919 [2d Dep't 2019] citing Prichep v Prichep, 52 AD3d 61, 62 [2d Dep't 2008]).

Defendant requests an immense sum of $512,652.85 in just interim counsel fees. (NYSCEF Doc. No. 46). The billing records produced by Defendant demonstrate she paid an initial retainer fee of $30,000.00 in March of 2021. (Def. Ex. L [NYSCEF Doc. No. 60]). Between the initial retainer and the date of her filing, Defendant incurred a total of $240,993.00 in counsel fees. (Id.). However, much of these costs were incurred well before the parties came to this court for judicial intervention.

The Request for Judicial Intervention was filed on February 21, 2023. (NYSCEF Doc. No. 6). From February 2023 through August 2023 Defendant incurred a total of $134,115.00 in counsel fees. (Id.). It appears that Defendant paid from August 2023 through February 2024 expended an additional $153,022.20. (Def. Ex. CC [NYSCEF Doc. No. 97]). This amounts to a total of $287,137.20 in legal fees since the month when the RJI was filed.

Within her supplemental filing, Defendant states she paid $344,085.00 in total legal fees from commencement through February 23, 2024.

Defendant used $191,064.16 of marital funds and Plaintiff's post-commencement earnings to pay for her counsel fees. (Pl. aff. at ¶ 42 [NYSCEF Doc. No. 61]; Pl. Ex. 30 [NYSCEF Doc. No. 72]; Def. aff. at ¶ 8 [NYSCEF Doc. No. 75]).

In light of the timeline of litigation, the fact that Defendant-herself has stalled progress in this case, especially with regards to custody and parenting time issues, this Court awards Defendant $150,000.00 in counsel fees, without prejudice for an application for further sums. Accordingly, Defendant's application for counsel fees is GRANTED as detailed herein.