In this motion sequence, Defendant asks the Court to (1) order Plaintiff to pay temporary maintenance to him in the amount of $5,900 per month. Plaintiff cross-moves for an order directing the sale of the marital residence and related relief, and for an order of child support.

The parties were married on November 4, 1998, and have two children, L., born in 2001 and J., born in 2007. This action commenced in June 2021. Defendant, aged 63, claims he is not working, but was previously a social worker. Plaintiff, aged 52, works for a Pharmaceutical Company.

Plaintiff asserts she pays for J.'s medication, camp, clothing, and certain add-on expenses without Defendant's help. Plaintiff alleges her mother helped take care of the children as well. Plaintiff oversaw the finances and claims she took the kids to school, appointments, and activities even though she was travelling for work. She claims her mother would help with the kids. Plaintiff claims Defendant was not very active in childcare duties or finances. J. lived with Defendant when he was thirteen in the marital residence, but he currently resides with Plaintiff in New Jersey. Defendant tells a different story of his relationship with the children and claims he was involved but acknowledges his struggling relationship with L.

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. Deviation from the presumptive award, whereby a court orders the higher-income spouse to pay the lower-income spouse a greater or lesser amount, must be done according to a series of factors.

DRL § 236(B)(5-a) calls for the parties' income to be determined initially by their most recent tax returns. According to the parties' 2020 joint tax return and related documentation, Plaintiff earned $352,397.00 and Defendant earned $65,303. The parties had an adjusted gross income of $396,572.

In Defendant's sworn statement of net worth, he claims gross income of $49,592.10 in 2021. Plaintiff's 2021 W-2 statement shows gross income of $397,095.75. Notably, as required by statute, the wife's gross income includes "income or compensation voluntarily deferred" for pensions and retirement benefits.

However, the analysis does not end there. Defendant has a history of earnings and an ability to earn. Thus, it would be appropriate to impute income to him based on his past earnings, or $65,303. While Defendant submits medical records and claims he has a chronic condition and cannot work due to this disability, the records he submits are insufficient to establish a permanent disability or complete inability to work. Of course, this claim may be explored further at trial.

In addition, the record evidence shows that Defendant is living rent free in one of the three units in the parties' home. The fair market rent for that unit is $5,000 per month as explained by the parties' real estate broker. The other two units are rented for approximately $2,000 each per month and cover the costs of the mortgage on the property. There is also a tax abatement on the property that will continue for years. In sum, the Court deems it appropriate to impute additional income of $60,000 to Defendant based on the rental income he could receive for his apartment.

Based on the foregoing, the incomes to be used for support calculations shall be $397,095.75 for Plaintiff and $125,303 for Defendant. In accordance with DRL § 236B(5-a)(c)(1), following statutory deductions, the presumptive award of temporary maintenance up to the cap is $1,198.87 per month.

The Court next considers whether upon review of the statutory factors awarding the guideline temporary maintenance would be unjust and inappropriate (see DRL § 236 (B) (5-a)(h)(1)). The parties were married for 22 years. The Wife is 52 years old and the Husband is 63 years old. Defendant claims to be disabled and is currently not working. The parties' son is 15 and attends school full time. The Husband has no need to incur education or training expenses. Nor does he need spousal support so that he can reenter the workforce.

Although there was a comfortable lifestyle during the marriage, the Wife's income must now support two households as the Husband has exclusive use of the marital residence and she has been the sole parent financially supporting the children.

Upon consideration of the above stated factors, the Court will consider income above the statutory cap up to a total income of $250,000. This adjusted cap takes into consideration the two [*3]households the Wife must now cover. 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)]).

Utilizing the adjusted income cap and the formula results in above-cap maintenance of $18,800, which results in a total adjusted cap maintenance of $33,186.40 or $2,765.53 per month. However, upon consideration of the various factors, the Court orders a total interim maintenance award of $3,000 per month.

The Court notes, however, that such award of maintenance is not permanent and the advisory schedule provides a suggested range for the duration of the support.

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. Here, after the award of maintenance, the Husband's income for child support purposes will be $ 147,356 and the Wife's income is $329,493.65. The combined parental income is $476,849.65. The Husband's pro rata share is 30.1% and the Wife's pro rata share is 69.1%.

The presumptive amount of basic child support obtained by calculating the statutory percentage for 1 child (17%) of the combined parental income cap of $163,000 results in child support of $27,710 per year. The Defendant's pro rata share of that sum is $8,562.94 or $713.58 per month.

In determining a temporary child support award, the Court also considers the assets of the parties and the major asset being the marital residence. The Court also considers the "add on" costs that the parties have incurred for their son, including health insurance, extracurricular and educational costs. Notably, the Wife has been responsible for and continues to pay for the all the child's expenses.

Upon consideration of the factors outlined above, including the marital standard of living, the elite schools, dining, tutors and other experiences the child has had, the Court determines it is appropriate to award support up to a cap of $250,000. This additional income above the cap results in additional guideline child support of $14,790 per year; the Defendant's share of that is $380.87 per month. This would result in a total guideline support obligation for Defendant on a combined income cap of $250,000 to be $1,094.45 per month.

After consideration of the factors, and the guideline support amount using a $250,000 cap, the Court finds that an award of temporary child support in the sum of $1,100 per month is just and appropriate. Further, Plaintiff shall be responsible for 70% of the child's add-on expenses, and the Defendant shall be responsible for 30% of such expenses. These include unreimbursed medical expenses, educational, extracurricular, summer camp, and other related expenses. There are generally no childcare expenses given the age of the child.

The above directed payments shall be retroactive to the date of this application. However, given that Plaintiff now has a maintenance obligation of $3,000 and Defendant has a child support obligation of $1,100, a net payment of $1,900 is owed each month by Plaintiff to Defendant. Accordingly, such obligation shall be paid on the first of each month and shall be retroactive to April 28, 2022. However, to the extent Defendant's pro rata share of add-on [*4]expenses for the child is owed back to April 28, 2022, upon proper proof, Plaintiff is entitled to credits for such sums. She is also entitled to any voluntary support payments she has made to Defendant from 2022 to present.

Regarding the request to sell the marital home, Plaintiff attests that she and Defendant purchased the Marital Residence (a brownstone) in October 2010 which is worth around $2,800,00. Defendant disputes whether this is the value of the home. Plaintiff also wants the Defendant to use S.C. to sell the house. They had to borrow money from family and friends to afford the down payment. In 2016, Plaintiff and Defendant renovated the marital residence and Plaintiff had to borrow from her retirement plan at the Pharmaceutical Company (which she began working at in January 2011). Plaintiff moved out around August 2021 when she purchased in New Jersey.

When the divorce action began, Plaintiff's attorney and Defendant's temporary pro bono attorney worked together to come to a settlement. Defendant then wanted to file as pro se again. Their plan was for Defendant to buy Plaintiff out of her share in the marital residence, but after Defendant became pro se, he admitted he could not afford to buy Plaintiff out of her share. Plaintiff believes Defendant did all of this on purpose.

Defendant does not want to utilize the broker suggested by Plaintiff. He also believes this Court has the power to award him the home in its entirety. The Court understands Defendant does not have the current means to buy Plaintiff out of her shares of the marital residence. If there is a way to resolve this, the Court recommends this route. Otherwise, the marital residence should be sold so the marital assets may be equitably distributed.

However, pursuant to DRL 234, the Court may not direct the sale of the home pendente lite unless there is an agreement of the parties or other circumstances (see Delvito v. Delvito, 6 AD3d 487 [2d Dept 2004]), such as immediate threat of foreclosure or loss of the asset (see Nederlander v Nederlander, 102 AD3d 416 [1st Dept 2013] [court properly directed husband to pay 50% of balances of mortgages on martial residence if he could not refinance or obtain extensions of notes "to ensure that the martial home would not be lost to foreclosure, prior to trial and a final judgment of divorce"]). Thus, the request to direct the sale of the home at this time is denied.

Accordingly, it is

ORDERED, that Plaintiff pay $1,900 to Defendant each month commencing on September 1, 2023, and retroactive to April 2022; and it is further

ORDERED, that Defendant reimburse Plaintiff for add-ons for the child, or in the alternative, Plaintiff is entitled to credits retroactive to April 2022; and it is further

ORDERED that all other relief is denied.

This constitutes the Decision and Order of the Court.