The following e-filed documents, listed by NYSCEF document number (Motion 002) 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 40, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, [*2]75, 76, 77, 78, 79, 80, 81, 82, 83 were read on this motion to/for INTERIM RELIEF.

Plaintiff moves by Order to Show Cause seeking various forms of relief. The issue of exclusive use and occupancy of the apartment was moot and/or resolved. The Court has also issued various orders addressing the custody aspects of this matter, including directing access through CFS, appointing an Attorney for the children, and appointing a forensic evaluator.

The remaining relief requested that has not yet been addressed by this Court include interim support and counsel fees. The interim relief granted in the Order to Show Cause directed Defendant to pay the expenses for the marital apartment, including rent and utilities, monthly garage payments, reasonable childcare expenses, and educational and extracurricular expenses. Additional sur -replies filed were not taken into consideration while deciding this matter. The cost to cover the rent on the marital apartment and utilities is $8,550 per month.

The parties were married in 2015 and have two children, N., born in [REDACTED], and J., born in [REDACTED]. This matter was commenced in September 2022. Plaintiff is an attorney working for a [CITY LEGAL AGENCY] and Defendant is a reporter with a [MAJOR PUBLICATION].

Prior to June 2022, the family lived in Plainview, Long Island where they rented a two-family house. The parties have had a conflict-filled relationship for some time and were contemplating a split. Plaintiff asserts she did not want to move into Manhattan. However, Plaintiff agreed to move into Manhattan based on representations made by Defendant that his parents and trust funds would cover all their expenses, and that his parents would pay for private school tuition for the children. He set forth his promises to her in a February 23, 2022 email.

Although Plaintiff earned little income after the birth of the children and was a stay-at- home parent or worked only part-time, more recently she accepted a full-time position earning $145,00 annually. Defendant's basic income is $120,000. Further, he receives additional income from dividends and capital gains, as appears on his tax return. According to Plaintiff, Defendant's family has purchased or gifted two expensive apartments in Brooklyn to Defendant; he currently resides in one of them, a two-bedroom unit in a multi-million-dollar new development. In addition to direct support provided by Defendant's parents, including the apartments, and paying for the children's private school, Defendant receives $8,000 each month in trust distributions.

Plaintiff explains that the parties could never afford to raise the children in Manhattan on their incomes, and Defendant said that his wealthy parents and trust funds (which had always supplemented the lifestyle) would cover all of the expenses. Defendant and his parents promised to pay private school tuition for our children at the finest schools in New York City and cover all of their educational and extracurricular expenses, which they have been doing.

According to Defendant, the parties only temporarily resided in Long Island during the pandemic. He also asserts that Plaintiff has insisted on a lifestyle they could not afford in return for moving back to the City. For example, he states they have over $35,000 in credit card debt and that he borrowed $40,000 from his brother to pay down debt.^[FN1]

Defendant also explains that the apartment he currently resides in is owed by the estate of his deceased grandmother, and the other Brooklyn apartment is owned by his parents. Although it appears there is no cost for Defendant's current housing, he notes that in the past the parties paid his grandmother $6,000 in rent each month. He also avers that his parents cannot forever pay the cost of expensive private schools for the children and suggests the consideration of public schools. He further explains that his trust distributions cover the rent on the marital residence but that he cannot afford to pay this indefinitely, and Plaintiff should locate a more affordable apartment.

The parties have both provided Statements of Net Worth and their tax returns for 2021. There is no dispute that based on the 2021 taxes and documents provided to the Court, Plaintiff's basic income is $145,000 and Defendant's income is $120,000.

However, for the purposes of child support calculations, the Plaintiff's income shall be $145,000 and the Defendant's income shall be $317,380.00. This includes the consideration of reported dividends of $41,335 and capital gains of $60,045 to the Defendant. Notably, Defendant's 2021 tax returns show a total income of $198,426, although his W-2 wages were lower at that time. Additionally, given that there is no dispute between the parties that Defendant receives approximately $8,000 in tax-free payments each month from a trust, $96,000 will also be imputed to Defendant. It is also significant that Defendant's parents pay the costs of the children's education, summer camp and extracurricular activities totaling over $10,000 each month. Defendant's parents also covered the costs of the family's religious organization dues.

In accordance with DRL § 236B(5-a)(c)(1), the presumptive award of temporary maintenance is $327 per month for income only up to the $203,000 cap. However, the Court considers as factors the marital lifestyle and high standard of living, Defendant's access to various income from trusts and family assistance, the issues of domestic violence raised in this case, the Plaintiff staying out of the workforce to raise the children and the impact that may have had on her career.

Upon consideration of the above stated factors, the Court will remove the cap and consider all income. Courts do not have to follow the statutory formula when they deviate from the statutory cap (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)]). Yet, if the Court utilized the formula, the maintenance award would be $2,162.66.

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]). The presumptive amount of basic child support obtained by calculating the statutory percentage for 2 children (25%) of the combined parental income cap of $163,000 results in child support of $40,750 per year. The Defendant's pro rata share (63%) of that sum is $25,719.85.68 or $2,143.32 per month. However, if the cap is similarly removed based on consideration of the factors listed above, the total monthly child support obligation for Defendant is $5,516.44

In sum, if the Court removes the income cap and uses the formula, the total interim support package would be $7,679.10 a month, consisting of $5,516.44 a month in child support and $2,162.66 a month in maintenance. The Court notes that although the parties may have [*3]previously entered into an agreement regarding interim support, that agreement is not enforceable in this Court. While the "Agreement" is not enforceable it is in indication of Defendant's ability to pay higher sums in support. In any event, there is a marital lifestyle and expectation that has been established and as a Court of equity and fairness it would be unjust to only award Plaintiff guideline child support. It would equally be unjust to have Defendant responsible for Plaintiff's request of approximately $12,467 ($8,300 for rent and $4,167 per month) which is based on an unenforceable agreement.

An award of presumptive support or even guideline level support without a cap would not even cover the rent on the marital apartment. Even an order directing Defendant to cover all the carrying charges on the apartment without more would mean he is not contributing anything towards the food, clothes and other basic needs of Plaintiff and the children. It is also fair to maintain the status quo for this family as much as possible for the moment.

After consideration of all the factors and financial circumstances, it is directed that Defendant pay unallocated support of $10,500 per month to Plaintiff. If Defendant is paying the rent, carrying charges and utilities for the marital residence directly, he can continue to do so and then pay an additional $2,000 per month directly to Plaintiff. In the alternative, he can pay the total amount of $10,500 to Plaintiff each month.

The issue of the payment of the children's private schools was resolved in a February 16, 2023 Order. Specifically, Defendant agreed to pay the entire tuition due for the 2023-24 school year, and thus this is not an issue at this time.

As to other add-on expenses for the children, including unreimbursed medical costs, reasonable childcare and extracurricular activities, they shall be paid 65% by Defendant and 35% by Plaintiff.

In matrimonial actions, the Court has discretion to direct one party to pay counsel fees for the opposing party (Domestic Relations Law ["DRL"] § 237). DRL § 237 further creates a rebuttable presumption that counsel fees shall be awarded to the non-monied spouse. This presumption reflects the strong policy concern of ensuring "that marital litigation is shaped not by the power of the bankroll but by the power of the evidence" (Charpie v Charpie, 271 AD2d 169, 170 [1st Dept 2000]). It is therefore especially important to award counsel fees for the non-monied spouse when there is a substantial discrepancy between the incomes of the parties (id. at 171). However, in addition to looking at the incomes of the parties, "in exercising its discretionary power to award counsel fees, a court should review . . . all the other circumstances of the case, which may include the relative merit of the parties' positions" (DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]).

In this case, there is no question that the Husband is the monied spouse considering all the various imputed income and income sources available to him. In addition, he is the beneficiary of a trust fund with an undefined value as well as numerous other assets and family assistance.

Further, Defendant's behavior necessitated additional litigation in this Court and criminal court as well as significant attorney time related to custody, supervised visitation, and order of protection concerns.

Plaintiff's counsel submitted their retainer agreement and invoices of counsel fees incurred in connection with this matter, as well as an affirmation setting forth their qualifications [*4]and work done on the matter. Thus, having considered the presumption of an award and the foregoing factors, it is directed that Defendant pay $50,000 in interim counsel fees, which is subject to reallocation and without prejudice to further applications.

ORDERED, and Defendant shall pay Plaintiff the sum of $10,500 as and for interim unallocated support, as directed above; and it is further

ORDERED, That Plaintiff is awarded counsel fees in the amount of $50,000 without prejudice for future applications; and it is further

ORDERED, Defendant shall pay $25,000 as and for counsel fees directly to Plaintiff's counsel on or before June 9, 2023, and pay $25,000 on or before July 7, 2023; and it is further

ORDERED, that all Interim Orders regarding custody shall remain in effect; and it is further

ORDERED, all relief not granted herein is denied.

This constitutes the Decision and Order of the Court.