This is an omnibus motion by the plaintiff (hereinafter "wife") for an order granting pendente lite maintenance, child support, an order of protection,^[FN1] custody, exclusive use and occupancy of the marital residence, injunctive relief and counsel fees. The defendant (hereinafter "husband") opposes the motion. Both parties are represented by counsel.

The parties were married on October 24, 1997. There are two children of the marriage, ages 4 and 2. The children live with the wife. The wife is 31 years old. Although she has not worked for the husband's piano business for approximately 6 years, (Def. Aff., p. 9, par. 22), the wife avers, and the husband admits, she receives a salary from the business of "up to $100,000 per year to maintain the household and pay for basic expenses" (Pl. Aff., p. 2, par. 8).

The husband is 59 years of age and owns a business known as "Pro Piano" which distributes and rents pianos. His net worth statement indicates he receives an annual "bonus" from the business of $150,000, and that his monthly expenses of $15,050 are paid by the business. His net worth statement reflects he has no cash accounts (checking or savings), securities, or business interests, other than Pro Piano New York. He admits ownership of property in Colorado, allegedly worth approximately $75,000, which was a gift from his parents. The net worth statement lists assets totaling approximately $875,000, and no liabilities.

Contrary to the husband's sworn affidavit and Statement of Net Worth, the wife submitted a copy of an "Irrevocable Statement of Ownership", sworn to November 9, 2001, by Danta Raso, a woman the wife asserts is the husband's paramour. The document indicates the husband is:

(1) "the legal and bonafide owner of 50% of the corporate title/deed/assets/inventory/ name known as 'Pro Piano (San Francisco)' and 'Pro Piano (Los Angeles),' both California corporations;" as well as

(2) "the legal and bonafide owner of 50% of the title/deed/property known as 'real estate' at 85-87 Jane Street, New York, New York 10014;" and

(3) "the legal and bonafide owner of 100% of the title/deed/property known as 'real estate' at 89-93 Jane Street, New York, New York 10014."

The document further provides that Ms. Raso agrees "to transfer both California corporations ... to [the husband] (Pro Piano New York) for monthly payments of $7500, due without interruption throughout the duration of [her] lifetime" and indicates that if the husband assigns or sells the California corporations during Ms. Raso's lifetime, 50% of the sale proceeds shall accrue to Ms. Raso.

The husband denies ownership of the California corporations in his papers, and asserts he has "... no financial connection to Ms. Raso, nor does she have any financial connection to [*2][him]."

Even more troubling than the foregoing factual discrepancies is the husband's admission he does not pay income taxes (or presumably, file tax returns, as no such documents have been provided on this motion or in discovery, to the best of the Court's knowledge), allegedly because his business has not shown a profit. In the same paragraph, the husband indicates he provides a "wonderful lifestyle" for his family from the monies earned by the business. The fact that counsel for the husband certified these papers and the husband's net worth statement causes the Court great concern and will be addressed later in this decision.

The wife seeks support from the husband in the sum of $4,000, as well as child support of $3,500 per month, and direct payments for child care, baby-sitting, summer camp and activity classes. The wife also seeks counsel fees in the sum of $8,000. The wife asserts the husband controls all of the parties' finances and claims he has transferred business interests to Ms. Raso. Accordingly, she seeks a restraint on the sale or disposition of marital assets prior to the disposition of this action, in order to protect her rights in equitable distribution.

Further, the wife seeks an order of temporary custody of the children, as she asserts the husband is not capable of providing appropriate care for them, as demonstrated by his alleged denigration of the wife in front of the children, and inappropriate conduct with a baby sitter in the children's presence. She asserts the husband's conduct has caused the children to lose respect for her, disobey her and call her names. Additionally, the wife asserts the husband's erratic behavior requires that the Court grant her exclusive use and occupancy of the marital residence pending the resolution of this action.

The husband disputes the wife's assertions and insists an order of support is not necessary because he will continue to provide directly for his family's needs. The husband further asserts the wife does not require exclusive use and occupancy of the marital residence as he never has behaved in the abusive manner described by the wife. Instead, he asserts it is the wife who behaves erratically and occasionally becomes abusive.

The husband also disputes the wife's assertion she should have custody of the parties' children. He claims the wife was abused by her father and that the occurrence has caused her to be permanently traumatized. Accordingly, he seeks a psychological evaluation of the wife and children for purposes of evaluating her ability to effectively parent the children.

When awarding temporary maintenance, the court considers and balances the factors enumerated in Domestic Relations Law §236, Part B(6), such as the financial status of the respective parties, their age, health, necessities and obligations, the nature and duration of the marriage, the present and future capacity of each of the parties to be self-supporting, the tax consequences to the parties and the income which the parties are capable of earning by honest efforts. See Baker v. Baker, 120 A.D.2d 374 (1st Dept. 1986); see also Lowe v. Lowe, 211 A.D.2d 595 (1st Dept. 1995); Lasry v. Lasry, 180 A.D.2d 488 (1st Dept. 1992). See Bagner v. Bagner, 207 A.D.2d 367 (2nd Dept. 1994); see also Kesten v. Kesten, 234 A.D.2d 427 (2nd Dept. 1996). Moreover, the court is also to consider, the standard of living established during the marriage. See Hartog v. Hartog, 85 N.Y.2d 36 (1995).

In this case, the wife admits she receives a salary of approximately $100,000 per year from the husband's business, although both parties acknowledge she does not work there. Accordingly, the wife has adequate income to support her needs during the pendency of this action, and her request for maintenance is therefore denied.

In awarding temporary support, the court has considered the guidelines contained in the Child Support Standards Act (Domestic Relations Law §240 [1-b][c]) as well as the factors which permit a deviation from the standard calculation, as delineated in §240(1-b)(f), such as the financial resources of the custodial and non-custodial parent and those of the children, the physical and emotional health of the children, and their educational or vocational needs and aptitudes, as well as the non-monetary contributions that the parents will make toward the care and well-being of the children. See Formato v. Formato, 173 A.D.2d 274 (1st Dept. 1991).

The parties' combined income, as indicated on their respective Net Worth Statements, is [*3]$250,000. The wife's pro rata share of the income is 40% and the husband's pro rata share of the income is 60%. For purposes of determining basic child support, the Court deems it appropriate to cap the combined income at $150,000. The total child support obligation on $150,000 is $37,500, 60% of which is attributable to the husband.^[FN2] Accordingly, the husband is directed to pay $1,875 per month in basic child support.

In addition, the husband is directed to pay the mortgage, insurance and utilities, (including telephone and cable television), for the marital residence. The husband is also directed to maintain and continue policies of life, auto, medical and dental insurance on behalf of wife and the parties' children, and to pay 60% of all un-reimbursed non-elective medical and dental expenses for them, as well as 60% of the cost of school expenses, summer camp and other activities. See Connolly v. Connolly, 83 A.D.2d 136 (1st Dept. 1987). The wife's request for payment of childcare services is denied, as it has not been established she works outside the home.

The award is retroactive to the original date of service of this application. See Domestic Relations Law §236B(6); Dooley v. Dooley, 128 A.D.2d 669 (2d Dept. 1987). Retroactive sums due by reason of this award shall be paid at the rate of $750 per month in addition to the sums awarded until all arrears have been satisfied. The husband may take a credit for sums voluntarily paid for actual maintenance and support of the wife and children incurred after the making of this motion and prior to the date of this decision for which he has canceled checks or other similar proof of payment. See Peltz v. Peltz, 56 A.D.2d 519 (1st Dept. 1977); Pascale v. Pascale, 226 A.D.2d 439 (2nd Dept. 1996). The first payment hereunder shall be made within 10 days of the date of this decision and then monthly thereafter.

Domestic Relations Law §237 authorizes the court to direct either spouse to pay counsel fees in order to enable the other spouse to carry on or defend the action as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. See DeCabrera v. Cabrera-Rosete, 70 N.Y.2d 879 (1987). Inasmuch as it appears that the wife lacks sufficient funds of her own to compensate counsel without depleting her assets, the wife is awarded interim counsel fees in the sum of $8,000 to be paid by the husband directly to the wife's attorney, within 10 days after the date of this decision. This award is made without prejudice to further applications for additional sums, as necessary at the time of trial or sooner. See Ritter v. Ritter, 135 A.D.2d 421 (1st Dept. 1987); Jorgensen v. Jorgensen, 86 A.D.2d 861 (2nd Dept. 1982). If the counsel fees are not paid as directed, the clerk is directed to enter a money judgment in favor of counsel upon written affirmation. No further notice is required.

That branch of the motion seeking exclusive occupancy of the marital residence is granted in light of the turmoil which would likely result from the husband's presence in the home, and in light of the Temporary Order of Protection issued by the Court in favor of the wife. The wife has made a sufficient demonstration of necessity for such drastic relief in order to protect the safety of person or property. See Domestic Relations Law §234; DelliVenneri v. DelliVenneri, 120 A.D.2d 238 (1st Dept. 1986); Hite v. Hite, 89 A.D.2d 577 (2d Dept. 1982). The parties shall arrange a mutually agreeable time for the husband to remove his personal effects from the residence, and shall be permitted to continue to use that portion of the residence from which he operates his business.

That branch of the motion seeking custody and a visitation order is granted to the extent that the Court shall appoint a guardian ad litem ^[FN3] for the children by separate order, to investigate the claims of each of the parties with respect to their respective parenting abilities. A hearing [*4]shall be held on the issue of custody and visitation at a date to be hereinafter scheduled.

That branch of the motion seeking injunctive relief is granted to the extent of enjoining the parties' from selling, transferring, conveying, hypothecating or otherwise disposing of marital assets pending further court order, except for ordinary and routine living and business expenses, in order to maintain the status quo for possible equitable distribution upon the plenary trial of this action. See Leibowits v. Leibowits, 93 A.D.2d 535 (2d Dept. 1983).

As mentioned earlier, the Court is troubled by the husband's admission in a sworn affidavit that he does not pay income taxes (or file income tax returns, as alleged by the wife). As mentioned to the parties and counsel at the preliminary conference prior to the submission of this motion, this Court is obligated to report admissions of tax evasion or fraud to the authorities. Accordingly, the Court is forwarding a copy of the husband's affidavit and Net Worth Statement to the Internal Revenue Service for investigation.

The Court also is troubled by counsel's certification of the husband's papers, as the contradictions contained therein appear to be irreconcilable. As indicated above, the husband asserts he does not pay income tax because his business does not earn a profit, while also asserting he receives a "bonus" of $150,000 per year from the business, pays his wife a salary of $100,000 (although she is incapable of working), pays all of his personal expenses with company funds, and provides his family with a "wonderful lifestyle" from his earnings. Counsel's certification that he has no knowledge that "the substance of any of the factual submissions contained in the ... Affidavit is false" seems disingenuous, at best. Accordingly, this Court believes it appropriate to forward the affidavit and certification to the appropriate Departmental Grievance Committee for review.

The parties are reminded of the preliminary conference order and the dates set therein. Should any discovery problems arise, counsel are encouraged to call chambers at (212) 374-4733 in an effort to avoid costly motion practice.

To the extent that this Court has awarded the wife child support and/or maintenance, this Order shall be reviewed by this Court six (6) months from the date of this decision upon the request of either party.

All matters not decided herein are hereby denied.

This constitutes the decision and order of the court.

Dated: June 23, 2004

New York, New York

Hon. Jacqueline W. Silbermann

Justice of the Supreme Court