This decision and order is issued simultaneously with the decision on custody, parenting time and the mother's application to relocate with the children which is also issued on this date, December 18, 2024. This decision must be read in conjunction with that decision for all the procedural history and facts related to this matter, which include, inter alia:

• an extensive history of multiple orders of protection against the defendant in favor of the plaintiff, which resulted in the defendant being excluded from the marital residence;

• a pending criminal action against the defendant resulting from his alleged violation(s) of an existing Criminal Court order of protection issued after a handgun he brought into the marital residence was found by police responding to a call from the plaintiff after a verbal incident between the parties in the marital residence by defendant placing and using an electronic device to track the plaintiff; and

• the facts and circumstances around the defendant's sisters and mother starting an eviction proceeding against the plaintiff to remove her from the marital residence which is held in trust by the defendant's family after the defendant was excluded from the marital residence based upon the order of protection in favor of the plaintiff; and

• the defendant's position that he had no responsibility to involve himself in the eviction proceeding against the plaintiff while lives in the marital residence with the parties' four (4) young children.

The parties were married on June 22, 2013. The plaintiff-mother commenced this action for divorce by filing a summons with notice on January 12, 2023 which was served March 23, 2023. The request for judicial intervention was filed on March 23, 2023. The parties stipulated to adjourn the preliminary conference from May 16, 2023 to June 7, 2023. A preliminary conference was held on June 7, 2023 [NYSCEF #15].^[FN1] Defendant-father filed an answer with counterclaims dated July 20, 2023 [NYSCEF #29.

A compliance conference was held on October 12, 2023 [NYSCEF #33] at which time the court learned that the parties had not complied with the preliminary conference order to conduct depositions by dates certain. The compliance order, inter alia, provided new deposition dates and set the matter down for a continued compliance conference and sanctions hearing for November 28, 2023 [NYSCEF #33].

Thereafter, the parties sought adjournments of the matter until February 5, 2024 representing that the parties were in the final stages of resolving the matter by way of a Stipulation of Settlement [NYSCEF #34]. On January 29, 2024, plaintiff filed a consent to change attorney substituting in her current attorney. Incoming counsel immediately filed an order to show cause seeking and order of protection [NYSCEF #47].

On February 5, 2024, on consent of the parties, the court issued a temporary order of protection against defendant-father in favor of the plaintiff-wife for defendant to stay away from plaintiff and her home, school, business and place of employment as well as refrain from communication by any means with plaintiff with the exception of e-mail communication between the parties regarding custody and visitation and participation in the deposition as per [*2]court order [NYSCEF #48].

On February 13, 2024, the court appointed Cheryl Charles-Duval, Esq., as the attorney for the parties' four (4) minor children [NYSCEF #53].

On July 22, 2024 ^[FN2] , after the trial on custody, parenting time and the mother's application for relocation had begun, the plaintiff filed an order to show cause seeking the following pendente lite financial relief:

1. Pursuant to DRL §240, directing Defendant to pay Plaintiff pendente lite child support in the sum of no less than $3,270.19 per month; or in the alternative, imputing income onto the Defendant in the amount of $191,080 annually; and ordering child support in the amount of $3,512.91

2. Pursuant to DRL §240, directing Defendant to pay no less than 60% of the add-on expenses for the parties' four minor children (A. C. and J. C., twins born in June 2014), including but not limited to the children's unreimbursed medical and dental expenses, childcare while the Plaintiff is working;

3. Directing the Defendant to promptly pay to the Plaintiff 100% of the 2022 joint tax refund that he deposited into his personal bank account totaling $18,227 (Federal: $12,715, State: $5,572); and

4. Any other relief the Court may deem just and proper.

In August 2024, the court ordered the father to pay interim temporary child support to the mother in the sum of $3,270.19 monthly until decision on the pendente lite application. The Court heard oral argument on the pendente lite motion on August 20, 2024 [NYSCEF #97].^[FN3] The trial on custody, parenting time and the mother's application to relocate with the children concluded on September 20, 2024 and the court is issuing a written decision on custody, parenting time and the mother's application to relocate with the children simultaneously with this decision. This decision must be read in conjunction with that separate written decision.

In reaching this decision, the Court has had the benefit of financial testimony during the trial on custody, parenting time and the mother's application for relocation especially since the financial circumstances were related to the request for relocation.

The plaintiff-mother is thirty-eight (38) years old and is employed as a nurse and the defendant-father is thirty-nine (39) years old and owns a personal training facility where he works as a personal trainer. There are four (4) unemancipated children of the marriage: J.O., May 2011; twins K.O. and L.O., June 2015; and M.O., December 2017.

During oral argument on August 20, 2024, the mother's counsel argued that the father's rendition of his income is not credible and that his representations are inconsistent and appear to [*3]shift depending on what he wants the outcome to be whether it is that he can be more frugal and earn much more money so he can pay for the oldest child to attend an expensive private school or that his income is very little when he wants the court to find that he cannot afford to pay direct support.

The father's counsel argued that the court should impute $80,000 annually to the mother because she lives in the marital residence without paying rent; however, clearly unless the parties reach a settlement providing for an alternative arrangement, the mother will not continue to live rent-free in the marital residence and, in fact, the mother's application seeking to relocate out of the marital residence with the children was granted in the written decision after trial dated December 18, 2024.

In that decision, the Court details, inter alia, how the marital residence is held in a family trust by the defendant's family but that the defendant-father herein is the only sibling in the family who is not a trustee of that trust.

It is not in dispute that during the marriage, the parties lived in the marital residence without any traditional rent structure and instead merely paid the property taxes and the utilities for the marital residence. After being excluded from the marital residence by a Kings County Criminal Court order of protection, the father moved into another residence owned by the family trust. The mother contends that the father lives in that family-owned residence "rent free" and the father contends that his mother — the paternal grandmother — will expect him to pay "rent" when/if his business begins generating a certain sum of income annually but, in the meantime, he concedes he is not paying "rent". This specified sum is more than $100,000 annually than what the father alleges he earns currently from his gym business.

When the mother made her pendente lite application in July 2024 the father still had not filed his 2023 income tax returns while disputing the mother's allegations as to his income. He also asserted that he was under no obligation to file these tax returns because he had filed for extensions and would not make a sworn statement as to his current income.

At conclusion of oral argument on August 20, 2024, the court directed the father to provide his personal and business tax returns on or before September 6, 2024, so that the Court could review them when issuing this written decision and order on the pendente lite application given the extensive allegations as to unreported income in prior years [NYSCEF #97, p. 19].

Inasmuch as the father offered no sworn statement as to his income in opposition to the mother's request for pendente lite support, the fact that the father conceded that he had made no child support in over two (2) years and the calculations provided by the mother based upon the father's last reported income from 2022 and her current income for 2023 which she conceded was higher than her income in 2022, the court ordered the father to make interim child support payments based upon the mother's application for an award of $3,270.19 monthly until further order of the court or resolution by the parties.

The mother is employed as a registered nurse: her 2023 W-2 shows wages of $134,811.70 [Plaintiff's exhibit 7 in evidence]. She testified that her employment hours are 7:30 a.m. to 8:00 p.m. two days during the week [Tuesdays and Wednesdays, the days when the children are with the father] and every other weekend [Saturday and Sunday, also aligning with the weekends the children are with the father] [NYSCEF #93, p. 98-99]. She testified that she drops the children off to the father on Saturdays at 6:30 a.m. and that the father returns the [*4]children to school on Monday mornings when they had parenting time with him [NYSCEF #93, p. 99].

The mother testified candidly that in or about August 2023, her salary increased from approximately $100,000 that she was earning in 2022 because she took a "floater" nurse position [NYSCEF #93, p. 102].^[FN4] The mother made no effort to withhold this information of her increased income from the court or the father and conceded that any basic child support obligation should be calculated using her current income. The mother's representations as to her income are credible.

The mother's affidavit of net worth dated October 16, 2022 ^[FN5] [Plaintiff's 6 in evidence] details the following monthly expenses totaling $11,424.81 ^[FN6] :

Housing, $305.76 [monthly property tax]^[FN7]; mobile phone, $79.39; cable, $208.38; internet, $99.99; groceries, $1,500; dining out, $300; clothing (self), $200; clothing (children), $200; life insurance, $127.42; automotive insurance, $168.56; medical insurance for family, $50; unreimbursed medica, $100; unreimbursed optical, $100; pharmaceutical, $200; household repairs, $250; babysitter, $500 ^[FN8] ; car lease, $650.05; auto gas/oil, $147.46; car wash, $50; parking/tolls, $50; other, $142.88; school supplies, $100; school lunches, $40; school events, $100; children's extracurricular activities, $1,238; vacations, $100; movies/theater/etc, $150; activities for self, $40; summer camp, $2,000 ^[FN9] ; birthday parties for children, $150; federal taxes, $704.88; state income tax, $409.41; NYC income tax, $303.36; social security, $625.03; beauty parlor, $100; toiletries, $150; books, $40; gifts for others, $50.

The mother testified that the expenses listed on her affidavit of net worth remain accurate, except that she is no longer paying monthly real estate taxes of $305.76 monthly [NYSCEF #93, p. 95].

The father testified that he has worked as a personal trainer throughout the marriage, either directly with clients or through gym chains, and that he opened his own gym in January 2020 but that he almost immediately had to "shut down that location for several months" due to the COVID-19 pandemic [NYSCF #93, p. 18]. He testified when called as the mother's witness [*5]that his business has grown significantly since it opened and he was the only person working there and that "due to demand I acquired an expansion to a location, five times the size" in May 2022 "and I locked in a ten-year lease for that location" and contracts with "seven trainers slash [sic] instructors" [NYSCEF #93, p. 19]. He testified that his gym location is "a ten-minute walk" from the marital residence [NYSCEF #93, p. 19].

The father testified that in addition to the income he earns from offering his personal training services, his business (the gym) takes thirty (30%) percent of the money paid to the other seven (7) personal trainers who work as contractors at the gym. He testified that he currently has "about 15 clients" that he trains directly [NYSCEF #93, p. 20-21] and that the gym also offers classes. The father testified that it is challenging to explain how much he earns from classes because people pay varying rates for classes depending on if they buy one (1) class at a time or class-packs, which results in lower per class cost to the purchaser. and that because he also uses a booking service that processes purchases that also retains a percentage of each purchase [NYSCEF #93, pp. 21-22].

The father testified that he pays himself "as needed" from his business [NYSCEF #91, p. 35-36]. Testimony at trial established that the father does not maintain clear delineations between his business funds and his personal funds.

Testimony established that during a deposition the father conceded that he "forgot" to include nearly $100,000 in Venmo payments made directly to his personal account when reporting his business income in 2022. At trial, the father testified that he must have "forgotten" to provide these records to his accountant. He offered no explanation for how he did not notice missing income of nearly $100,000 when reviewing his tax returns, especially where he initially reported only approximately $66,000 for the year in question.

The father's affidavit of net worth dated July 1, 2023 [Plaintiff's 2] was entered into evidence, details the following monthly expenses totaling $6,123.01 ^[FN10] :

Rent, $2,500 ^[FN11]; real estate taxes, $312.86; fuel, $225; electric, $225; mobile phone, $300.15; alarm, $10; water, $100; groceries, $800; dining out, $800; clothing (self), $200; clothing (children), $200; dry cleaning, $10; fire/theft/liability/personal articles policy, $100; automotive insurance, $250; unreimbursed medical, $50; psychotherapy, $100; household repairs, $300; automotive gas/oil, $250; auto repairs, $100; car wash, $60; parking/tolls, $150; school supplies, $80; school lunches, $50; children's extracurricular activities, $100; vacations, $500; movies/theater, $100; activities for self, $100; birthday parties for children, $200; beauty parlor, $100; toiletries, $125; books, $25; gifts to others, $50; charitable contributions, $50; veterinarian/pet expenses, $100.

The father testified that while he listed a monthly rent obligation of $2,500, he has not paid any rent [NYSCEF #91, p. 37] but testified that he has an "agreement" with his mother that he would start paying rent when he made a "certain amount of income" through his self-employment at his gym [NYSCEF #91, p. 65].

It does not appear that the father has, pendente lite, demonstrated any enforceable obligation for this alleged obligation to pay rent. Furthermore, this representation that his family expects him to pay rent appears inapposite to the testimony of his sisters testified as his witnesses who both testified that in the future if the father was ever required to pay "rent" it would be well below market-rate. Additionally, it is undisputed that the family never charged the parties "rent" to live in the marital residence during the marriage. The testimony established that during the marriage the parties only paid the property taxes for the marital residence [approximately $3,000 annually] and their utilities while living at there. The father did not call his mother to testify in support of his claim that he has an enforceable rent obligation to her. It appears, at this time, that the father continues to attempt to obfuscate his true financial circumstances from the mother and the Court.

The father testified that during the marriage he met and dated, Ms. T., whom he also paid to do "operations and marketing" for his gym at a rate of $1,000 a week through a bank quick pay service. He testified on cross-examination by the attorney for the children that Ms. T. worked at the gym from September 2022, approximately the time he left the marital residence, until January 2023 [NYSCEF #93, p. 41] but that unlike his other contractors he "didn't have an agreement in place when she started working" at the gym [NYSCEF #93, p. 41-42]. The father testified that when his accountant eventually reached out to get Ms. T's information to provide her with a 1099 that she allegedly never responded and, he testified, he was not sure if these payments were included in his tax returns [NYSCEF #79, pp. 20-21]. How the father could make these alleged payments when he represents that his "net" profit is just $8.23 an hour from his self-employment raises yet more questions [defendant's affidavit in opposition to pendente lite application; NYSCEF #83]. The court notes that even in his proposed list of business expenses from his amended 2022 tax return as detailed in that affidavit he does not have any line item for "operations" or "marketing". If, as he contends, his operating margins provide him with $8.23 an hour in profits, how did he pay his former girlfriend $16,000 by direct cash payments from September 2022 to January 2023 without even including that alleged "expense" on his schedule C and forgetting to issue a 1099 to his then girlfriend to whom he paid cash?

The father's rendition of his income and access to financial resources is inconsistent and defies credibility and the Court cannot rely on his representations in awarding pendente lite child support.

The father testified that the parties received a refund when he originally filed the parties' joint 2022 income tax returns and that he deposited that refund "into my personal checking account" [NYSCEF #91, p. 37] and that he did not share any of the refund with the mother despite that she is a W-2 employee and all of the taxes paid that were refunded had come out of her paycheck. The original 2022 joint tax return in evidence shows a federal refund of $12,715 and a New York State refund of $5,572 [Plaintiff's 2 in evidence]. The father testified [NYSCEF #91, p. 37]:

PLAINTIFF'S COUNSEL: So is it fair to say that [the mother] had taxes taken out of her check and you had no taxes taken out of your check but you kept the whole refund?

DEFENDANT: Yes, that is fair to say.

The father testified on cross-examination by the attorney for the children that in March 2024 he amended his 2022 tax return after the deposition in this divorce action to include additional income of almost $100,000 because "I realized I had money that I received through Venmo that was not filed through [his accountant] on their annual statement" [NYSCEF #93, p. 42]. He further testified that this additional income of $100,000 in 2022 were business payments that were made directly to his "personal Venmo" and had not been previously included on his tax returns [NYSCEF #93, pp. 43-45]. He testified that he did not notice the disparity when he filed his original tax returns because he "put too much faith in my bookkeepers" [NYSCEF #93, p. 43].

The husband testified on direct that because of amending his tax return, he owes "$25,000 approximately" [NYSCEF #91, p. 36]. He testified on direct on July 23, 2024, that he has "until August 27th to pay the balance before any additional interest is charged" but after August 27th "[a]n interest rate of about eight percent will be added on" [NYSCEF #93, p. 23]. A copy of the amended 2022 joint income tax return shows a balance due for federal income tax of $23,869 and $10,106 for New York State income tax due [Plaintiff 1 in evidence].

The father initially represented in his 2022 tax returns that his business had a loss of more than -$30,000 for the year but, after his deposition, he "remembered" more than $93,000 of direct Venmo payments that he had not reported on his tax return. He thereafter amended his tax return to reflect gross income of $159,880 and taxable income of $122,838 resulting in a tax bill due of more than $25,000 (between federal and state) [Plaintiff's exhibit 1 in evidence].^[FN12]

Over the defendant's objection that he was under no obligation to provide his 2023 income tax return because he had filed for an extension, the Court ordered him to file this tax return given the allegations as to income made by the mother and the pending issue of child support. It appears that the father is not being transparent about his finances and may be intentionally obfuscating his financial circumstances to financially manipulate the mother and to avoid direct payment of child support. His proposition that he earns net profit of only $8.23 hourly a self-employed personal trainer who owns his own gym with clients who are wealthy enough that at least one of them is willing to independently sponsor one of the parties' children to attend an expensive private high school defies credibility. The father will have a full and fair opportunity to present testimony and evidence at trial on the financial issues including on the issue of his income.

Notwithstanding his amended 2022 tax return, which shows gross income from his gym of more than $159,000, his 2023 individual tax return — filed after the parties rested in the trial and oral argument on the pendente lite application — shows gross receipts of more than [*6]$244,000, gross profits of more than $151,000 but reportable income of just $21,218 [NYSCEF #94].

Despite his representations during the trial that he had taken on more clients and was earning more money [by his testimony $600 a week more in direct payments] to pay private school tuition for the parties' oldest child the late filed 2023 tax return filed by the father reports vastly less income than the amended 2022 tax return. The father has not explained this sudden alleged decrease in income or how this representation aligns with his testimony at trial that he is earning more money than he was in 2022. The father's rendition of his financial means and circumstances at this time is not credible: the more representations he makes about his income the more inconsistencies and questions are presented.

The father testified that he "was willing to pay child support" but only if there was a final stipulation of settlement [NYSCEF #79, p. 25]. He conceded that he has only paid "[a]bout $1,800" in direct child support from September 2022 to June 2024 [NYSCEF #79, p. 25]. The testimony at trial from the defendant was consistent: he was not willing to pay direct child support to the plaintiff unless she agreed to a settlement he agreed to. The defendant's sisters, whom he called as witnesses, testified candidly that they tried to help their brother force the plaintiff to settle by starting an eviction proceeding to remove her from the marital residence.

In support of his position that he is financially "supporting" the children, the defendant testified that at the date of commencement the parties had credit card debt of approximately $52,000 and that he has paid "several thousand" towards those balances, which he contends are marital debts, during the litigation [NYSCEF #93, p. 27]. The mother conceded that the parties had credit cards during the marriage and that they used for family expenses and that these credit cards had balances on them at the date of commencement [NYSCEF #95, pp. 16-18]. She testified that these balances have increased since the commencement because she continues to charge "necessities" for the children to these cards including "[b]ooks for the children. Cleaning supplies for the house, Clothing for the children, any medications that the kids need. Sunscreen in the summer. Any towels, any necessities for the children whatsoever go on these cards" because she is not receiving any direct child support [NYSCEF #95, p. 52]. The mother conceded that during the marriage she transferred money to the father to pay toward balances on credit cards in his name but that she had not done so since the date of commencement [NYSCEF #95, pp. 18-19]. She testified that since the date of commencement "I have credit cards that I've been paying off that are also joint card [sic]" [NYSCEF #95, p. 19].

While the court can credit parties with direct payment of financial obligations in lieu of direct support, here, the parties appear to be conflating occasional payments toward credit card debts incurred during the marriage [an issue of equitable distribution] with the obligation to provide direct child support for the current support of the children. The parties will have an opportunity at the trial on the financial issues to address any claims of marital debt and any reallocation of charges incurred post-date of commencement; however, payments toward alleged marital debts incurred during the marriage are not interchangeable with present direct payment of child support inasmuch as those payments inure to the direct financial benefit of the party making the payment because that preexisting liability is ultimately the liability of the party [see generally Curran v Curran, 192 AD3d 985, 144 NYS3d 735 [2 Dept.,2021][while that outstanding financial obligations incurred during the marriage which are not solely the [*7]responsibility of the spouse who incurred them may be offset against the total marital assets to be divided there must be an offer of proof that the debts constitute marital expenses).

The father testified that during the marriage he and the mother each purchased and paid for food and clothing for the children [NYSCEF #91, pp. 61-63] but, he concedes, when he left the marital residence, he stopped paying for any direct living expenses for the children other than utilities, fire insurance and property tax [NYSCEF #91, p. 63-64] with the exception that he pays for the oldest child's cellphone and the "kids' trampoline park membership" and "game pass membership" [NYSCEF #91, pp. 63-64].

He conceded on redirect by the mother's attorney [the mother called the father as a witness] that he has made no direct child support payments to the mother for necessities like clothing and food during the pendency of the litigation or for any childcare for the mother to work because "we were trying to iron out a settlement agreement" [NYSCEF #93, p.58-59]. He testified that "w]hen it comes to washing laundry I'm still paying for the water and the gas and electric that operates those devices" [NYSCEF #93, p. 59].

The father concedes that the mother pays for the children's health insurance premiums for him and for the parties the children without any financial contribution from him and that he only contributes to the cost of co-payments for the children if he is the one who takes them to an appointment which, testimony established during the custody trial, is only occasionally and for non-routine visits [NYSCEF #93, p. 57-58]. The mother testified that she pays $100 monthly for health and dental insurance for the family [NYSCEF #93, p. 95].

The mother also testified that she pays $500 or more a month in child-care costs so that she can work, including paying one of the father's family members for babysitting at times.

The mother's rendition of her W-2 income is consistent, and she was forthcoming with the Court and the father during this litigation that her income increased during the litigation and provided updated paystubs reflecting that increase. The mother did not try to obtain pendente lite support based on her prior — lower — income.

The father's rendition of his financial means and resources is wholly not credible. Just some of his representations include that:

• He asserted that his business reported a financial loss of many thousands of dollars on the parties' 2022 income tax return but then he amended that tax return after his deposition to include nearly $100,000 in direct cash Venmo payments to his personal account that he asserted he did not realize were not reported.

• He then retained $18,227 [all] the parties' income tax refund despite reporting a business loss and the fact that the mother's W-2 employment withholdings provided all the income used for that tax filing.

• The father's own testimony was that he works approximately twenty-five (25) hours a week (although later he asserts in his affidavit in opposition to the mother's pendente lite application that he is, essentially, "always on call" because he owns his own business).

• The father refused to provide his 2023 income tax returns and asserted his right not to provide them until the Court directed him to do so and when he did so after the trial and oral argument on the pendente lite application he reports income of only approximately $20,000 from his self-employment as the owner of a gym and work as a personal trainer despite having already testified at trial that he was earning more money than he did in [*8]2022 because he added more personal training clients so that he can pay private school tuition.

It appears that if the father's income is as limited as he alleges then it is purposefully "limited" to gain an advantage in this litigation because he readily and voluntarily testified that he can work more and add more clients if he wants to [for example, to fund his desire to send the oldest child to a private high school] and he apparently believed he could afford to pay his girlfriend $1,000 cash a week without adding her to payroll or issuing her a 1099.

The father's refusal to provide his 2023 income tax return until after oral argument and only then after the court ordered him to do so made it impossible for the mother to review or to oppose that asserted information during oral argument. Upon review of the father's 2023 income tax return, the Court notes that the father's representation as to his income appears to have dramatically decreased from 2022 when this litigation started to 2023, despite his testimony at trial that he is earning more income than he was in 2022 because he has taken on more clients. The father takes the position that he can earn as much money as he wants when it suits him [when he is testifying about his alleged financial ability to put the parties' oldest child in an elite, private high school] but takes the position that he has almost no income when he thinks that will advantage him [when he does not want to pay direct child support to the mother]. The more representations the father makes about his income — and he has made numerous conflicting representations — the less credible his representations appear. The only clarity from the father's representations at this time is that the Court cannot rely on his rendition of his income in setting pendente lite basic child support. The father will have the opportunity to explain the inconsistencies in his representations at trial on the financial issues.

Inasmuch as the father has not been forthcoming with his financial circumstances, the Court has no viable alternative but to credit the mother's calculation of child support up to the cap of $183,000 as presented in her Child Support Standard worksheet [NYSCEF #81].^[FN13] That calculation, based upon the father's income as reported on his amended 2022 tax return [$159,880] and the mother's 2023 W-2 income [$132,459.72], which she concedes is higher than what she earned in 2022, is annexed and incorporated herein in full compliance with the CSSA calculation requirement.

The plaintiff's income for the purposes of child support is $ ($132,459.72 less FICA/social security [$10,313.10] and NYC taxes [$4,860.28] = $117,286.34) and defendant's income is $159,880.^[FN14] The total combined adjusted CSSA child support income is: $277,166.34 ($$117,286.34 + $159,880 = $277,166.34).

The basic child support cap is $183,000. Using combined income to the current child support statutory cap, which is $183,000 at 31% (for four children)= $183,000 x .31 = $56,730 total child support annually ($4,727.50 monthly).

The plaintiff's pro rata share = 42.32% or $24,006.00 annually ($2,000.50 monthly) and the defendant's pro rata share = 57.68% or $32,724.00 annually ($2,727.00 monthly; $629.31 weekly).

Thus, the defendant's child support obligation to the plaintiff pendente lite shall be $2,727.00 monthly for the four (4) unemancipated children. Commencing on the 1st day of January, 2025 and continuing on the 1st day of each month.

This award is retroactive to the date of the pendente lite application (July 22, 2024) with a credit for actual payments made since that date. From July 22, 2024 to December 22, 2024, arrears are $2,727.00 x 5 months = $13,635 + 1 week [December 23-December 31, 2024 = $629.31] for a total of $14,264.31 for July 22, 2024 through December 31, 2024. These arrears shall be paid by defendant together with his basic child support payment at the rate of $3,270.19 monthly with each subsequent basic child support payment until paid in full. Defendant shall be entitled to a credit for any temporary child support payments already made by check or other negotiable instrument to plaintiff, since July 22, 2024, the date of plaintiff's first application for pendente lite relief (see Domestic Relations Law § 236 [B][6][a]); see also Mosso v. Mosso, 84 AD3d 757, 924 N.Y.S.2d 394 [2 Dept.,2011]).

The Court granted the mother temporary interim child support of $3,270.19 pending determination of her application after oral argument ^[FN15] ; the Court notes that that sum was based on the mother's CSSA calculation [NYSCEF #81] which included pro rata shares of childcare and health care costs. Inasmuch as the parties' pro rata shares of childcare and health care costs are being awarded separately herein, the basic CSSA child support of $2,727.00 is awarded.

Plaintiff's application for arrears retroactive to the date of commencement is referred to the trial court to make a final award of retroactive child support after the financial trial subject to testimony and evidence at trial particularly where there are such inconsistent allegations as to defendant's income (see Domestic Relations Law § 236 [B][6][a]).

The Court awarded the mother full legal and residential custody of the four (4) children in the written decision after trial issued simultaneous herewith. The Court notes that the father paid no direct child support for nearly two (2) years and the mother will be entitled to retroactive basic child support back to the date of commencement upon final determination or settlement. The father concedes that his monthly child support (using his own financial representations) would be at least $1,727 [NYSCEF #88] and that he has only paid about $1,800 in direct support in those two (2) years. Based upon the father's own calculation, he concedes that he will owe at least $41,448 ($1,727 x 24 months = $41,448) in retroactive child support from the date of commencement to the date of this pendente lite application and that is not even considering if the [*9]Court finds that the retroactive child support award is higher than what the father requests.

The note of issue was filed on June 3, 2024, and this matter is ready to proceed to trial on the financial issues between the parties where the parties will be able to provide sworn testimony and offer evidence subject to cross-examination and any objections and the Court can make rulings and credibility findings. As such, any adjustment to a final award of child support will be retroactive to the date of commencement and under the facts and circumstances present, including that the father has not paid any direct child support in two (2) years any such adjustment can easily be made.^[FN16]

The "proper remedy for any perceived inequality in a pendente lite award is a speedy trial" (Silla v Silla, 228 AD3d 969, 971 [2 Dept.,2024]). The Court herein will set a pre-trial conference for selection of trial dates on the financial issues between the parties where both parties may present testimony and offer admissible evidence on the allegations between them.

The parties' pendente lite pro rata responsibility for statutory add-ons is as follows: plaintiff-mother, 42.32 %; the defendant-father, 57.68%.

The mother testified credibly that she sometimes must incur childcare related expenses for the parties' four (4) children so that she can go to work. The mother shall have an opportunity to provide an accounting of childcare expenses while she incurred while working back to the date of commencement during the trial on the financial issues. Until that time, the mother shall provide to the father a monthly accounting of any statutory childcare related costs she incurs by the 15th day of the following month. The father shall provide his pro rata share of these statutory child-care costs or any objections to same within fourteen (14) days of receipt of the mother's accounting. The father shall make payment of any claimed statutory child-care costs that he does not object to within those fourteen (14) days and shall not withhold partial payment based on any limited objections. The mother shall have the opportunity to provide a full accounting of childcare expenses for the children retroactive to the date of commencement at the time of trial.

The father's contention that the mother "uses inflated healthcare expense" in her pendente lite application father concedes that the mother provides health insurance for him and the parties' children and that he has not made any financial contribution to that health care expense. The mother shall provide the father with proof of the monthly medical coverage costs within twenty (20) days and the father shall provide the mother with his pro rata share of the retroactive sum to the date of the pendente lite application within ten (10) days of receipt of proof. The portion of the health insurance cost that will be attributable to the children pendente lite shall be the difference between the cost of individual coverage for the plaintiff-mother and the cost to cover the four (4) children. The father shall pay his pro rata share of the health care cost each month in addition to his monthly basic child support payment.

The mother shall provide an accounting of any unreimbursed reasonable medical costs to the father monthly on the 15th day of each month and he shall provide his pro rata share thereof with his next basic child support payment. The mother shall have the opportunity to provide an accounting of health care expenses incurred for the children retroactive to the date of commencement at the time of trial for allocation between the parties once the final pro rata is established.

The note of issue was filed: parties and counsel shall appear for a pre-trial conference on the financial issues between the parties on Thursday, February 6, 2025, at 10:00 a.m. in-person and the Court will set trial dates at that time.

Plaintiff's order to show cause [motion sequence #2] is granted to the extent.

This shall constitute the decision and order of the Court.