Y. G. v K. L.

[*1] Y. G. v K. L. 2005 NY Slip Op 51244(U) Decided on June 30, 2005 Supreme Court, Nassau County Falanga, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 30, 2005
Supreme Court, Nassau County

Y. G., Plaintiff

against

K. L., Defendant



03-202902

Anthony J. Falanga, J.

The within action was commenced by plaintiff on or about September 26, 2003, alleging the defendant constructively abandoned him and treated him in a cruel and inhuman manner. A bifurcated trial on the issue of grounds for divorce spanned parts of four days. At the conclusion of the trial, the Court reserved decision awaiting receipt of the parties' post trial memoranda of law and summations. A decision dismissing plaintiff's causes of action was rendered on September 2, 2004 and the matter was set down for a conference on September 22, 2004 to address any ancillary issues. The husband discharged his attorney on or about December 17, 2004. On January 31, 2005 the defendant withdrew her counterclaim for divorce and on February 1, 2005 the Court certified the case for trial on the ancillary issues. The trial commenced on March 30, 2005 and spanned several days, concluding on April 4, 2005. Both sides stipulated that the issue as to defendant's request for an award of counsel fees would be determined upon the submission of defendant's attorney's affirmation and plaintiff's affidavit in response. Decision was reserved pending the Court's receipt of defendant's attorney's affirmation in support of the request for an award of counsel fees and plaintiff's written response. Defendant's attorney's affirmation was received and marked as Court Exhibit II.

Findings of Facts

The parties were married in China on October 20, 1987. There are two children of the marriage, E., born August 6, 1991 and W., born October 20, 1996. The defendant resides with her two children in the marital home. The defendant related that her health was not good in that she needed an operation for a kidney stone. The plaintiff is 40 years old and the defendant is 41. The defendant testified that she was employed by G. T. and earned $1,350.00 gross per month. She expected she would be able to earn $25,000.00 annually in about five years and anticipated it would be seven years before she became self-supporting. Although she has been in the United States for ten years, and in the year 2000 was able to earn her MBA degree while attending Pace University, defendant claimed she needed additional training and help speaking the English language. She estimated that she required two years of language training to be able to acquire the ability to adequately speak and write English, enabling her to improve her [*2]employment opportunities. The cost at a community college to pursue an English language course was alleged by the defendant to be $300.00 per credit. In addition, the defendant stated she would need $500.00 per month for babysitting expenses for her youngest child while she attended school. Defendant testified that both children participated in after school programs. The cost for W's program is $500.00 each month, from 3 to 6 p.m. There is no cost for E's after school program.

While the parties were still living together, $300.00 was expended monthly for piano lessons for both children. E had been taking lessons for seven years and W for two years. Both children had been taking Chinese language lessons at a cost of $200.00 per month. E participated in such lessons for four years and W for two years. The defendant offered that the piano lessons, as well as the Chinese language lessons, all ended when plaintiff commenced the within action in 2003. The defendant testified that her daughter currently participates in a special social studies honor program for which she pays $100.00 each month; that she paid $450.00 for her daughter to take a school trip to Washington, D.C.; and in October 2004, she gave her daughter $100.00 for expenses on a vacation trip to Albany. The defendant related that while the family was intact they took a vacation over a period of three days, at a cost of $1,000.00, during which they traveled to seven different states.

Defendant stated that she made many contributions to the marriage and to the career of the plaintiff. According to the defendant, she delayed pursuing further education for her English skills in order to take care of her family while the plaintiff was earning his graduate degree. Starting in the year 2000, the defendant operated a financial advising business, working primarily out of the home. She terminated the business in 2003. In 2001, the defendant worked for eight months part time as a front desk clerk at a hotel. She also trained for one or two months to obtain her Series 6 license, so she could sell life insurance. Her contribution as a wage earner also included working for a year at M. Windows and Doors from December 2002 through November 2003, where she performed accounting services and earned $22,000.00 gross per year. Defendant claimed she was terminated from such employment due to her losing one month of work as a result of injuries inflicted by the plaintiff on October 27, 2003. She then worked for M. Industries, with a monthly gross pay of $2,000.00. This employment was terminated after one and one-half months due to defendant's need to take time off to attend Court. Throughout the marriage, the defendant did the cooking, cleaned the house and performed the usual and customary services of a wife and homemaker.

The defendant claimed that the plaintiff wasted marital assets by paying rent for a house which he shared with his girlfriend and that he paid other expenses for her, including her expenses in traveling from China to the United States.

Plaintiff's future earning capacity was good according to the defendant, offering that the he had an annual income of $100,000.00 plus a $10,000.00 annual bonus, as well as stock options and a 6 to 8% annual increase in salary. The defendant testified that in 2003 the plaintiff realized $45,000.00 from the sale of stock options. [*3]

The defendant requests that the Court award her custody of the two children and proposes that plaintiff have visitation every Friday night for dinner. According to the defendant, the plaintiff hadn't visited with the children for about one month, on which occasion he just showed up on a Friday when she wasn't home. Their daughter reported that plaintiff only stayed for about ten minutes. The visit before that was two weeks earlier, when plaintiff stayed for one half hour.

The defendant also requested that she be awarded $1,000.00 per month maintenance for a period of ten years; that plaintiff maintain health insurance coverage and pay for all uncovered medical and dental expenses for herself and the children; that plaintiff pay $800.00 per month in child care expenses in addition to child support; that plaintiff maintain and pay for her automobile insurance coverage; and that the existing life insurance coverage on plaintiff's life in the sum of $400,000.00 be maintained by the plaintiff with the defendant continuing as the beneficiary. The defendant requests that child support be paid by way of an income deduction order.

Arrears alleged to be due defendant from plaintiff pursuant to the Court's pendente lite order include $3,000.00 in attorney fees and $42,955.00 in maintenance and child support as of March 22, 2005. Defendant also seeks 80% of the $400.00 she paid for the children's summer camp and $900.00 for house repairs as provided for in said court order, all of which expenditures defendant alleged were paid for in cash and for which she did not have a receipt.

On cross examination, the defendant stated that while plaintiff was pursuing his Ph.D. she took care of the children; did all the housework; assumed the role of landlord and rented out a room to a tenant; and worked at various jobs, including employment at a bakery and at a restaurant, where she earned $1,400.00 per month. Defendant testified that she attended school for her MBA from 1994 to 1995 and that she also worked while she was at school and received some financial aid from the school towards her tuition. In response to plaintiff's inquiry, the defendant claimed she would require $50,000.00 annually to be self-supporting and that she was requesting $1,000.00 per month maintenance for a period of ten years.

When questioned regarding visitation, defendant told the plaintiff that she welcomed him to visit the children on Friday nights, but that the children told her that they didn't like the fact that he said bad things about her and that she really didn't want him to visit unless he changed. Defendant stated that their children didn't think their father cared about them.

With respect to her request for exclusive possession of the marital residence, defendant offered that it wasn't really what she wanted; what she really wanted was her marriage and she indicated to the plaintiff that he would be welcomed back to the house, but not if there are two families in his life, and for him to be able to return to his family he had to give up his girlfriend.

Defendant testified that she wanted custody because she always took care of the children and the plaintiff always told the children he didn't care what they were doing. The [*4]defendant related that plaintiff left the house every weekend starting in April 2003 and moved out in November 2003, because of the issuance of a Family Court Order of Protection and that even after the Order of Protection expired, he decided not to return home.

The plaintiff testified that he expected his 2005 income to be $108,000.00, including a bonus, and that his earning capacity for the future remained fairly consistent with his current income. According to the plaintiff, he believed title to the marital home was in his name only. He reported owning a 1999 Toyota Camry, which was free and clear of any liens or encumbrances and a 401k that was valued at $88,236.00, as of December 31, 2004, against which he has a loan of $11,000.00.

In addition to his income and bonus in 2004, plaintiff stated that he received stock options in said year with a value of approximately $60,000.00.

Plaintiff testified that he believed the defendant's earning capacity was at least $25,000.00 per year and that she should be able to secure employment as an accountant and be self supporting, without the need of any additional training and/or education. He testified that he objected to his wife having exclusive use and occupancy of the marital home, because he didn't believe custody should be awarded to a single parent. He stated that he wanted to live in the marital home and have joint custody of the children. Plaintiff also claimed that the defendant has not contributed nor has she rendered services as a spouse, parent, wage earner and homemaker in any significant manner, but that her purchase of clothes for him contributed to his career and career potential. On cross examination, plaintiff conceded that the defendant cooked for him and did his laundry, however, he claimed she stopped doing these things two years before the action was commenced.

When asked by the Court whether there was any other factor which he would like the Court to consider in determining the defendant's request for an award of maintenance, he responded by advising that he had a new baby, born June 27, 2004. The plaintiff offered that he had advised the defendant of this fact two months after the child was born. Plaintiff stated that he was not currently living with the child and the child's mother and by agreement with the mother he was voluntarily paying child support of $1,500.00 per month, which he says represents 17% of his salary.

Financial documents provided by plaintiff's employer and received into evidence as defendant's "H," reveal the following information: plaintiff has been employed by F. Laboratories, Inc. as a scientist since December 7, 1998; on June 1, 2000 his salary increased by 8% from $66,902.00 to $72,252.00; on June 16, 2001 he was promoted to the position of senior research scientist, his salary was increased to $84,952.00 a year plus 1000 shares of stock options; on November 10, 2003, he became entitled to 1500 shares of stock options per year; effective January 1, 2005, he was promoted to associate principal scientist and his salary was $108,136.00 annually plus 2000 shares of stock options; in the year 2002, he was paid salary of $89,538.00, a year end bonus of $10,745.00, and received stock options worth $49,713.00 [*5]bringing his total remuneration to $150,051.00; in the year 2003, he was paid salary of $94,185.00, a year end bonus of $9419.00 and received stock options worth $42,520.00 bringing his total remuneration to $146,185.00; in the year 2004, he was paid salary of $98,306.00, a year end bonus of $9830.00 and received stock options worth $89,046.00, bringing his total remuneration to $197,246.00. His 2004 W2 reports wages of $103,039.00 and "other" remuneration (in box 14) of $89,046.00. (Said sums total $192,085.00 although his December 31, 2004 pay stub shows total remuneration of $197,246.00 as set forth herein above). The parties' 2003 joint tax return was the only tax return received in evidence. It indicates that the parties reported wages of $113,098.00 [plaintiff's wages were $99,244.00 and defendant's were $20,071.00 before 401k deductions]; interest income of $701.00; a business loss of $21,021.00 [ plaintiff reported to have operated a business with gross sales of $364.00 and expenses of $20,028.00]; and stock options of $42,552.00, bringing total reported taxable income to $135,331.00.

Exhibit B in evidence consists of two W2 forms, a 1099 form and an unemployment 1099G showing the defendant's income for 2004 totaled $13,076.00 including $6370.00 unemployment benefits and $2482.00 disability benefits.

Defendant's affidavit of net worth, sworn to on March 14, 2005, was received in evidence as Exhibit C. Said affidavit sets forth modest living expenses of $5588.00 a month, such as $150.00 a month for clothing, $400.00 a month for groceries and $200.00 a month for recreation for the wife and two children. The carrying charges on the marital residence total approximately $3500.00 a month.

Conclusions of Law

Although the husband's causes of action for divorce were dismissed after trial and the wife withdrew her counterclaim for divorce, the Court retained jurisdiction to hear and determine the wife's claims for ancillary relief (see, Garver v Garver, 253 AD2d 512; Sandoro v Sandoro, 303 AD2d 938; Adinolfi v Adinolfi, 168 AD2d 401; Blisko v Blisko, 149 AD2d 127; Forbush v Forbush, 115 AD2d 335 appeal den 67 NY2d 756).

Custody & Visitation

In a custody proceeding, the court's paramount concern is to determine what is in the best interests of the children (see, Friederwitzer v Friederwitzer, 55 NY2d 89). Toward that end, the court must consider the totality of the circumstances, including the relative fitness of the parents and the quality of their respective home environments (see Eschbach v Eschbach, 56 NY2d 167; Kuncman v Kuncman, 188 AD2d 517). In the instant case, it is clear that the defendant has been the children's primary caretaker for all of their lives and she is better able to provide for their emotional, intellectual and physical welfare ( see, Olsen v Olsen, 8 AD3d 285). [*6]

Accordingly, the defendant is awarded sole custody of the infant issue of the marriage. As plaintiff has not provided the Court with any requests for visitation, no specific visitation is provided for herein. Plaintiff is, however, awarded reasonable visitation, away from the marital residence. The dates and times of such visitation shall be upon mutual agreement of the parties.

Exclusive Use & Occupancy of the Marital Residence

Although the husband's causes of action for divorce were dismissed after trial and the wife withdrew her counterclaim for divorce, the Court retained broad authority to control the possession of property between spouses, including occupancy of the marital residence ( see, Forbush v Forbush, supra; Naughton v Naughton, 92 AD2d 914; Maulella v Maulella, 90 AD2d 535; St. Angelo v St. Angelo, 130 Misc 2d 583).

In the instant case, the plaintiff has been out of the marital home since November 2003, initially as a result of a stay away order issued by the Family Court and then on a voluntary basis when the order expired. Although the defendant is unequivocal in her desire to make her marriage work, she is similarly clear that the plaintiff is only welcomed to return home when he is prepared to be with just one family. The plaintiff, during the course of the grounds phase of the trial consistently denied he had a girlfriend, however, during the continuance of the trial on the ancillary issues, plaintiff revealed that he had fathered a child with another woman. As the plaintiff has established a residence away from the marital home, voluntarily resided outside the marital home for a considerable period of time, and fathered a child by another woman, it is clear that the best interests of the children would be served by awarding the defendant exclusive use and occupancy of the marital residence until the youngest child attains the age of 18 or graduates from high school, whichever is later.

Maintenance

Notwithstanding defendant's need to improve her skills in speaking the English language, considering her education, work experience and length of time she has been residing in the New York metropolitan area, she has the ability to secure employment forthwith earning $24,000.00 a year, $2000.00 a month gross. No income above the $13,076.00 she actually received in 2004 will be imputed to her for the year 2004 as her ability to earn in said year was clearly negatively impacted by her attendance at court proceedings.

The defendant incurs reasonable expenses for herself of $3515.00 a month, including taxes on her income and maintenance award. She requires an award of maintenance of $1515.00 a month to meet her reasonable needs. Accordingly, commencing July 1, 2005, the plaintiff shall [*7]pay the defendant maintenance of $1515.00 a month. Upon the request of either party, payment shall be through the Nassau County Support Collection Unit. The defendant shall pay the carrying charges on the marital residence. The pendente lite order dated December 17, 2003 which required the plaintiff to pay maintenance of $1015.00 a month plus the defendant's automobile insurance of $140.00 a month was effective November 7, 2003. Retroactive arrears accrued between November 2003 and June 30, 2005 are established in the sum of $6840.00 ( $360.00 a month for 19 months). As the husband's causes of action for divorce were dismissed after trial and the wife withdrew her counterclaim for divorce, the award of maintenance is non-durational (see, Garver v Garver, supra; Schildkraut v Schildkraut, 223 AD2d 585; Blisko v Blisko, supra).

Child Support

The award of child support is made in accordance with the Child Support Standards Act (DRL 240 [1-b]). In making said award, the Court must interpret and address DRL 240(1-b) (b)(5)(vii)( C ) which provides as follows:

...the following shall be deducted from income... maintenance actually paid or to be paid to a spouse that is a party to the instant action pursuant to an existing court order or to be contained in an order to be entered by the court,...provided the order...provides for a specific adjustment, in accordance with this subdivision, in the amount of child support payable upon the termination of ...maintenance to such spouse (emphasis added).

There are a plethora of appellate cases holding a trial court's failure to deduct maintenance in its calculation of child support to be reversible error (see, e.g., Schmidt v Schmidt, 264 AD2d 770; Goldman v Goldman, 248 AD2d 590; Frei v Pearson, 244 AD2d 454). All such precedents, however, involve cases wherein the parties' marriage was terminated and the award of spousal support was for a limited duration. In the instant action, the parties' marriage was not terminated, and absent a prospective substantial change of circumstances, the nondurational spousal support awarded herein will out last any award of child support and cease only upon the death of either party. In view of such circumstances, a provision in the Court's judgment providing for an adjustment of child support upon the termination of maintenance would appear to be inappropriate. Nevertheless, this Court holds that the awarded maintenance should be deducted from the plaintiff payor's income pursuant to DRL 240(1-b)(b)(5)(vii)( C ).

In Lenigan v Lenigan, 159 AD2d 108, decided in 1990, the Appellate Division Third Department determined that a pendente lite award of direct maintenance should not be deducted from a payor spouses's income for purposes of calculating temporary child support pursuant to DRL 240 (1-b) on the ground that said interim order did not provide for a specific adjustment in child support upon the termination of maintenance. In dicta, the Court opined however, that a [*8]permanent order must 1) calculate combined parental income after deducting maintenance from the payor spouse's income and 2) contain a provision permitting an application to the Court to adjust child support if at any time maintenance payments should terminate. In Huber v Huber, 229 AD2d 904 (1996), the Appellate Division Fourth Department, citing Lenigan, supra, held that it was error for the matrimonial trial court to deduct maintenance when determining a payor spouses's income pursuant to DRL 240 (1-b)(b)(5)(vii)( C ) where the maintenance award was nondurational and would outlast the term of child support (see also, Fendsack v Fendsack, 290 AD2d 682 [4th Dept 2002]). In both Huber, supra and Fendsack, supra, the parties were divorced and although the maintenance was nonduration, it clearly would have terminated upon the payee spouse's remarriage. It is therefore, difficult to reconcile, the Hudak court's reliance on Lenigan, supra. If the Hudak Court had applied Lenigan, supra, it would have upheld the trial court's deduction of maintenance from the payor spouse's income, but would have modified the judgment of divorce so as to provide for the adjustment of child support upon the termination of maintenance in the event of the payee's remarriage.

Although the Court of Appeals did not specifically interpret DRL 240 (1-b)(b)(5)(vii)( C ) in its 2004 decision, Holterman v Holterman, 3 NY3d 1, it is important to note that the Court did unequivocally approve the deduction of annual nondurational maintenance, awarded by the matrimonial trial court, from the payor's income in the application of DRL 240 (1-b) guidelines (see also, Peri v Peri, 2 AD3d 425; Lenigan v Lenigan, 11/15/1999 NYLJ, 31, col 1 [ Nassau Supreme Court]). The decision in Holterman, supra, is not, however, dispositive in the instant action. Although the award of maintenance in Holterman, supra, was nondurational, the parties did obtain a divorce and maintenance would therefore terminate upon the remarriage of the payee spouse.

In the instant case, the award of maintenance is nondurational and the parties remain husband and wife. As the payee spouse cannot remarry, maintenance will terminate, only upon the death of either party, at which time any child support order would also terminate. The spousal and child support issues herein are analogous to, or in the nature of, a support proceeding brought under Article IV of the Family Court Act wherein a dependent spouse seeks an order of support for himself or herself and dependent children. The Court notes that the language of FCA 413(1)(b)(5)(vii)( C ) governing child support guidelines in Family Court support proceedings is identical to DRL 240(1-b)(b)(5)(vii)( C). In the context of various matrimonial actions, this Court has had occasion to review and address Family Court orders of spousal and child support from a number of counties within this State, none of which provided for the deduction of spousal support nor an adjustment provision.

This Court has located only one Appellate precedent on point. In Bolotnikov v Bolotnikov, 262 AD2d 317, an appeal of an Article IV Family Court Support proceeding between spouses, the Appellate Division Second Department held that it was reversible error for the Hearing Examiner 1) to fail to deduct awarded spousal support from the payor's income before [*9]applying CSSA and 2) citing the Third Department's decision in Lenigan, supra, to fail to include a provision in the order "... authorizing an adjustment to the father's child support obligation should his support obligation terminate"(see also, Deborah G. v Theodore G., 149 Misc 2d 299, wherein a Family Court Judge from Columbia County, citing the Third Department' decision in Lenigan, supra, sustained objections to a Hearing Examiner's order and directed that awarded spousal support be deducted from the payor's income and that the order for spousal and child support set forth an adjustment provision).

This Court finds the legislative intent underlying the promulgation of DRL 240 (1-b)(b)(5)(vii)( C ) and FCA 413(1)(b)(5)(vii)( C ) was to 1) require the deduction of awarded maintenance or spousal support from the payor's income so that he or she would not be required to pay the statutory child support percentage on the same stream of income paid to the dependent spouse as maintenance or support, while 2) promoting the financial interests of dependent children by mandating an adjustment in child support in the event awarded maintenance or support terminates and the income stream previously paid by a payor as maintenance or support is no longer applied toward that purpose.

In the instant case, the portion of the plaintiff payor's income stream applied to pay the award of nondurational maintenance will out last the award of child support and will continue until the death of either party. When maintenance terminates upon the death of either party, there will be no adjustment in child support. Nevertheless, the Court finds that the plaintiff should not be required to pay guidelines child support on the income stream paid to the defendant as maintenance and accordingly maintenance must be deducted from the payor's income before combined parental income is calculated. The Court will include the statutory language in its judgment that child support shall be adjusted upon the termination of maintenance despite the recognition that such language is inappropriate under the circumstances herein.

As the language of FCA 413(1)(b)(5)(vii)( C ) governing child support guidelines in Family Court support proceedings is identical to DRL 240(1-b)(b)(5)(vii)and in view of the precedent established in Bolotnikov v Bolotnikov, supra, it is clear that spousal support awarded to dependent spouses in that forum should similarly be deducted from a payor's income before combined parental income is calculated, despite the fact that such spousal support is nondurational and will terminate only upon the death of either party.

Pursuant to DRL 240(1-b) child support is awarded as follows:

(a) The children of the marriage entitled to receive parental support are Ellen, born August 6, 1991 and William, born October 20, 1996. [*10]

(b) The income of the plaintiff, who is the non-custodial parent, net of FICA and Medicare taxes in 2004 according to his W2 was $185,141.00; his income net of maintenance was $166,961.00.

(c) The income of the defendant, who is the custodial parent, net of FICA and Medicare taxes in 2004 was $12,680.00.

(d) The applicable child support percentage is 25%.

(e) Combined parental income in 2004 was $179,641.00.

(f) CSSA child support on the first $80,000.00 of combined parental income is $20,000.00 or $1667.00 a month. CSSA child support on parental income above $80,000.00 is $24,910.00 (179,641.00 - $80,000.00 = $99,641.00.00 x 25% = $24,910.00). Child support in total combined parental income is $44,910.00 a year.

(g) The plaintiff's share of combined parental income is 93% and the defendant's share is 7%.

(h) The plaintiff's child support obligation on the first $80,000.00 of parental income is $18,600.00 a year or $1550.00 a month ($80,000.00 x 93% = $18,600.00). The plaintiff's child support obligation on the combined parental income over $80,000.00 is an additional $23,166.00 a year or $1930.00 a month ($24,910.00 x 93 % = $23,166.00). His child support obligation on total combined parental income is $41,766.00 a year ($44,910.00 x 93% = $41,766.00).

(g) In view of the parties' modest standard of living during the marriage, the expenses set forth on the defendant's affidavit of net worth, and the reasonable needs of the children, the Court finds that it would be unjust and inequitable to apply the statutory percentage to total combined parental income. The defendant has the ability to earn $2000.00 a month and she will be receiving $1515.00 a month as and for maintenance. Her affidavit of net worth sets forth annual expenses for herself and the children of approximately $67,000.00 a year. After considering defendant's ability to earn and the maintenance awarded herein, the Court finds she will have a shortfall in meeting the children's reasonable needs of approximately $30,000.00 a year. She will be receiving $18,600.00 a year from the plaintiff as and for his child support obligation on the first $80,000.00 of joint parental income. She requires an additional sum of $11,400.00 a year or $950.00 a month to provide for the children's reasonable needs. Accordingly, commencing July 1, 2005, the plaintiff shall pay the defendant child support of $2500.00 a month ($1550.00 + $950.00 = $2500.00). Said award is the equivalent of requiring the plaintiff to pay child support of 25% on the first $120,000.00 of his income net of FICA, medicare and maintenance, rather than on the full amount of such income of $166,961.00. At the request of either party, payment [*11]shall be through the Nassau County Support Collection Unit.

The pendente lite order directed the plaintiff to pay child support of $2000.00 a month. Retroactive arrears accrued between November 2003 and June 30, 2005 total $9500.00 ($500.00 a month for 19 months).

Child Support Add Ons

Child Care Expenses

Pursuant to the provisions of DRL 240(1-b)(c)(4), the Court is to consider child care expenses. Commencing July 1, 2005, the parties shall pay such expenses pro rata., to wit: the plaintiff shall pay 94% and the defendant shall pay 7% of said expenses. The Plaintiff shall reimburse the defendant for his portion of said expenses within 10 days after the receipt of a copy of a bill or other documentary proof of said expenses.

Lessons and Educational Expenses

In the case at bar, it is appropriate to make note of the fact that both plaintiff and defendant are college educated and have graduate degrees. The children were reared in an environment wherein they took Chinese language lessons as well as piano lessons for a number of years. Since the parents possess the requisite financial ability to finance such lessons, they should once again be offered to the children. Commencing July 1, 2005, the plaintiff is directed to pay 93% and the defendant is directed to pay 7% of the cost of piano lessons, Chinese lessons and school enrichment programs incurred by the children. The Plaintiff shall reimburse the defendant for his portion of said expenses within 10 days after the receipt of a copy of a bill or other documentary proof of said expenses (see, DRL 240[1-b][c][7]).

Pendente Lite Arrears

In lieu of direct payments to the defendant as required under the Courts pendente lite order dated December 17, 2003, plaintiff claims that with the permission of the defendant, he made payment of the mortgage on the Jericho residence instead of the defendant doing so with the support monies from plaintiff.

Plaintiff and defendant's counsel stipulated that after crediting plaintiff with payments he made, including mortgage payments through March 30, 2005, the amount of arrears [*12]owed for pendente lite support was $9,776.57 plus the $3,000.00 counsel fee award. Plaintiff's request for an additional credit of $1,132.15 for defendant's alleged share of 2003 Federal and State income taxes is unwarranted and is denied. Accordingly, arrears are established as of March 30, 2005 in the sum of $12,776.57 and the defendant is awarded a money judgment against the plaintiff in the sum of $12,776.57, which includes the counsel fee pendente lite award. In addition to the aforesaid pendente lite arrears, the plaintiff owes retroactive arrears awarded herein of maintenance of $6840.00 and child support arrears of $9500.00. The defendant is awarded an additional money judgment for such arrears in the sum of $16,340.00.

Health Insurance

Plaintiff is directed to maintain medical, dental and hospital insurance coverage for the issue of the marriage and for the defendant. In addition, plaintiff shall pay 93% and defendant shall pay 7% all un-reimbursed and/or non-covered necessary medical, dental, orthodontic, optical and prescription expenses incurred on behalf of the issue of the marriage, including medically necessary psychological expenses. The Plaintiff shall reimburse the defendant for his portion of said expenses within 10 days after the receipt of a copy of a bill or other documentary proof of said expenses. The defendant shall pay her own uncovered expenses.

Life Insurance

Plaintiff is directed to maintain existing life insurance coverage in the sum of $400,000.00, naming the defendant as beneficiary.

Attorney's Fees

The defendant testified that she had paid her attorney $3,000.00 in legal fees and that the last bill from counsel reflected that she owed $20,000.00 as of March 14, 2005. In furtherance of the parties' stipulation, defendant's counsel submitted her affirmation in support of an award of attorney fees. Although the plaintiff was afforded an opportunity to submit an affidavit in response to the attorney's affirmation setting forth his argument against an award of fees, no such written response was received.

The Court of Appeals has held that a Court must consider the following factors in determining counsel fees: [*13]

...time and labor required, the difficulty of the questions

involved, and the skill required to handle the problems

presented; the lawyer's experience, ability and reputation;

the amount involved and benefit resulting to the client

from the services; the customary fee charged by the Bar

for similar services; the contingency or certainty of

compensation; the results obtained; and the responsibility

involved (see, Matter of Potts, 213 App. Div. 59, 62, affd.

241 NY 593; Code of Professional Responsibility EC 2-18;

Canons of Professional Ethics, canon 12; Ann., Attorney

Compensation - Amount 56 ALR 2d 13, 20 - 50; see, also

H. Cohen, History of English Bar and Attornatus to 1450,

p. 279 [1929])." (In re Lincoln Rochester Trust Co. v

Freeman, 34 NY2d 1, 9; see, also McCann v Guterl,

100 AD2d 577).

Based on (1) all of the evidence adduced at trial; (2) the findings as to the relevant and material factors set forth above; (3) the respective financial circumstances of the parties and the disparity in their income levels; and (4) after considering the assets available to defendant to satisfy the counsel fees she has incurred, the Court awards her the sum of $20,000.00 inclusive of legal fees and disbursements in addition to the $3000.00 awarded pendente lite for which she has herein been granted a money judgment (see, DeCabrera v Cabrera-Rosete, supra; DeBernardo v DeBernardo, 180 AD2d 500; Cotton v Cotton, 147 AD2d 436; Stern v Stern, 67 AD2d 253). Plaintiff shall pay the counsel fees awarded herein, directly to the defendant within 90 days after the date of this order. In the event said sum is not timely paid, the defendant may settle a money judgment on notice in said amount.

Dated: June 30, 2005 E N T E R:

Mineola, NY

_________________________

Anthony J. Falanga, Justice

Supreme Court, Nassau County

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