Jill G. v Jeffrey G.

[*1] Jill G. v Jeffrey G. 2011 NY Slip Op 50542(U) Decided on March 18, 2011 Supreme Court, Nassau County Janowitz, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 March 18, 2011
Supreme Court, Nassau County

Jill G., Plaintiff,

against

Jeffrey G., Defendant.



202923-10

 

Saltzman Chetkof & Rosenberg, LLP.

Attorney for Plaintiff

300 Garden City Plaza

Suite 130

Garden City, NY 11530

Barrocas & Rieger, LLP.

Attorney for Defendant

100 Quentin Roosevlet Blvd.

Suite 208

Garden City, NY 11530

Norman Janowitz, J.

Plaintiff moves by Order to Show Cause seeking an Order (1) granting temporary custody of the parties' minor children, Jacob, born December 24, 2001, Arden, born September 17, 2004 and Raime, born May 24, 2008; (2) directing defendant to pay to plaintiff, pendente lite, child support effective as of the date of this application, and that retroactive amounts, if any, be paid in one lump sum; (3) directing defendant to pay to plaintiff, pendente lite, non-taxable maintenance [*2]in excess of $10,783.33 per month effective as of the date of this application, and that retroactive amounts, if any, be paid in one lump sum; (4) granting plaintiff, pendente lite, exclusive use, possession and occupancy of the marital residence; (5) directing defendant to pay, pendente lite, all carrying charges and expenses associated with the marital residence, including but not limited to, the mortgage, home equity loan, HELOC, real estate taxes, homeowners' insurance, water, fuel, electric, telephone and home maintenance; (6) directing defendant to pay for medical, hospital and other health insurance coverage for the plaintiff and the parties' children, and in addition, directing defendant to pay any past due and future medical, dental, psychotherapeutic, optometrist, drug and pharmaceutical bills for services already rendered; (7) directing defendant to pay, pendente lite, all expenses related to the 2010 Honda Odyssey and 2010 Mercedes Benz ML350 automobiles used by plaintiff including, but not limited to, insurance, maintenance, repairs, and registration and inspection fees; (8) awarding plaintiff interim counsel fees in the amount of $50,000.00 without prejudice to additional applications. Defendant opposes the motion.

Pursuant to a Stipulation of the parties entered into on January 14, 2011, plaintiff is to have exclusive use and occupancy of the marital residence. During a conference with the Court held on March 3, 2011, the parties agreed to refer branch "1" of plaintiff's application regarding temporary custody to a hearing on April 18, 2011, in the event that the parties are unable to reach an agreement regarding custody of the children, pendente lite, prior to that time. Accordingly, branches "1" and "4" of plaintiff's application are not addressed herein.

BACKGROUND

The parties were married on February 12, 2000, and there are three children of the marriage, to wit: Jacob, born December 24, 2001, Arden, born September 17, 2004 and Raime, born May 24, 2008. Both parties are 39 years old and in good health. Plaintiff resides in the marital residence with the children and has exclusive use and occupancy thereof pursuant to the Stipulation reached by the parties.

Jacob, the parties' oldest son, is handicapped and suffers from cerebral palsy. The parties employ a full time nanny to assist them with the children, and more specifically Jacob, who requires constant and extensive medical care, and to enable plaintiff to work. Pursuant to an Infant Compromise Order entered December 7, 2009, Jacob was awarded $454,507.83 in settlement of a medical malpractice lawsuit filed on his behalf by plaintiff. The Infant Compromise Order specifically provides that the settlement funds are to be utilized for all expenses relating to Jacob's health, educational welfare, maintenance, comfort and care. Plaintiff is the sole guardian named on the Infant Compromise Order and is in control of the funds. Both parties acknowledge that despite the availability of these funds Jacob's expenses have been paid by the parties. [*3]

Plaintiff has a Masters in Applied Psychology and is employed as a guidance counselor at Syosset High School. She earns approximately $103,000.00 per year.

Defendant has a Bachelor of Business Administration degree and is employed as an investment banker with Barclays Capital. It is undisputed that defendant's overall compensation is approximately $500,000 per year which compensation is comprised of a fixed salary and cash bonuses which are generally paid in March of every year.

Plaintiff contends that pursuant to the new temporary maintenance formula the presumptive amount of maintenance that defendant would be required to pay based upon an income capped at $500,000.00 is $10,783.33. This calculation is not disputed by defendant. Plaintiff urges the Court to deviate from this presumptive award and award her a greater amount in temporary maintenance touting Jacob's exceptional medical expenses. Plaintiff's Net Worth Statement, however, does not reflect any such extraordinary expenses, medical or otherwise, expended on Jacob's behalf.[FN1]

Plaintiff's Net Worth Statement reflects that her monthly expenses total $18,096.95. This amount includes, among other expenses, all of the monthly expenses related to the marital residence (approximately $6,900.00 : mortgage, taxes, utilities, maintenance), nursery school expenses for the parties' youngest child ($841.00) and the childcare/nanny expense ($2,600.00).

Defendant's Net Worth Statement reflects that his monthly expenses (reflecting expenses for the entire family of 5) total $21,739.10. This amount includes, among other expenses, all of the monthly expenses related to the marital residence (approximately $6,900.00 : mortgage, HELOC, taxes, utilities, maintenance), nursery school expenses for the parties' youngest child ($850.00), childcare/nanny expense ($2,600.00) and automobile related expenses ($1,440.00). Evidently, both parties' Net Worth Statements reflect many of the same expenses. Defendant's Net Worth Statement sets forth a gross monthly salary of $18,332.00 (or $219,984.00 per year). This amount is consistent with documentation from defendant's employer (attached to defendant's papers) which reflect that defendant's fixed yearly income is $220,000.00 (comprised of $145,000 in salary and $75,000.00 in additional fixed payment). This amount is exclusive of defendant's cash bonuses which are less certain and generally disbursed in March of every year.

The parties' Net Worth Statements reflect that each of the parties has an ING savings account containing approximately $250,000.00. Plaintiff claims that defendant unilaterally decided to split their joint ING savings account which had a balance of approximately $530,000.00, into the two separate ING accounts. According to defendant, the original joint ING account which contained $530,000.00 was, for the most part, comprised of $290,000 representing defendant's bonuses, $140,000 from the parties' HELOC and $70,000 of Jacob's funds awarded in the Infant Compromise Order. [*4]

The parties and their children are currently covered by plaintiff's employer's health insurance. Plaintiff argues that defendant should pay the cost of coverage for the health insurance, to wit: $213.00 per month which is currently deducted from plaintiff's paycheck, and that he additionally pay all non-reimbursed medical and dental expenses and medications for herself and the children.

Plaintiff states that she presently owns and operates two vehicles: a 2010 Honda Odyssey and a 2010 Mercedez Benz ML 350. The Honda Odyssey was purchased for Jacob's benefit with money awarded Jacob in the Infant Compromise Order and is handicap accessible . Defendant consents to plaintiff having exclusive use and occupancy of the 2010 Mercedes ML 350, but does not consent to plaintiff having exclusive use and occupancy of the 2010 Honda Odyssey. Defendant contends that since this vehicle was specifically purchased to transport Jacob in his wheelchair, he would require use of the vehicle to transport Jacob when he has the children.

Plaintiff seeks $50,000 in interim counsel fees. Defendant maintains that since each of the parties has access to funds, to wit, their respective ING savings accounts, each containing approximately $250,000, plaintiff is not entitled to interim counsel fees. Plaintiff executed a retainer agreement with her counsel on May 5, 2010, and paid a $10,000.00 retainer fee. She states that she has since paid an additional $10,000.00 in legal fees.

 

DECISION AND ORDER

In determining an award of pendente lite maintenance in matters commenced after October 12, 2010, the Court is required to apply the new mandatory pendente lite maintenance guidelines enacted by the legislature. See D.R.L. 236 B (5-a). In order to determine temporary maintenance awards pursuant to the new statute, calculations are based upon each of the parties' annual income as defined by the statute. The court must order the presumptive award of temporary maintenance unless the Court finds that the presumptive award is unjust or inappropriate.

Here, based on the maintenance calculation chart submitted by plaintiff, plaintiff's presumptive maintenance award based on defendant's $500,000.00 annual income is $10,783.33 per month. Defendant does not refute that this would be the presumptive maintenance amount based upon his $500,000.00 annual income. The Court does not find the presumptive amount to be unjust or inappropriate in this case given the expenses set forth in the parties' Net Worth Statements and the settlement funds awarded to Jacob by the Infant Compromise Order. Additionally, the parties' Net Worth Statements do not reflect that the parties have accrued any debt due to any extraordinary expenses. Upon examining the parties' papers and supporting documentation it is evident to the Court that the parties' incomes were capable of sustaining their monthly expenses. The Court does not find it necessary to deviate. Accordingly, branch "3" of plaintiff's application is GRANTED in that defendant is directed to pay plaintiff maintenance, pendente lite, in the sum of $10,783.33 per month, which shall be non-taxable to plaintiff. The [*5]first payment of spousal support shall be made on April 1, 2011, and then on the first of each month thereafter. The award of spousal support is retroactive to the original date of service of this application. Retroactive sums due by reason of this award shall be paid in one lump sum in light of defendant's March 2011 cash bonuses. Defendant is entitled to an offset for any sums paid voluntarily during the pendency of this application.

In awarding temporary child support, the Court may consider the guidelines contained in the Child Support Standards Act, see D.R.L. §240(1-b), as well as the factors which permit a deviation from the standard calculation, as delineated in D.R.L. §240(1-b)(f), such as the financial resources of the parents and those of the children, the physical and emotional health of the children, and the children's educational or vocational needs.After considering the parties' respective Net Worth Statements, the expenses set forth therein, the availability of Jacob's settlement funds and plaintiff's maintenance award,the Court finds that child support utilizing a a combined parental income cap of $305,307.00 [FN2] is appropriate here. This number was reached as follows:

Defendant's annual income for child support purposes is $80,787.04 calculated as follows:

$220,000.00 (Gross Income [FN3])

- $9,813.00(FICA & Medicare)

- $129,399.96 (Maintenance)

= $80,787.04

Plaintiff's annual income for child support purposes is $224,519.96, calculated as follows:

$ 103,000.00 (Gross Income)[FN4]

-$ 7,880.00(FICA & Medicare)

+ $ 129,399.96 (Maintenance)

= $224,519.96

Accordingly, the parties combined parental income is $305,307.00 ($224,519.96 plus $80,787.04). In accordance with the Child Support Standards Act, 29 percent of the total combined parental income is $88,539.03. Defendant's pro rata share is 26% or $23,020.15 annually, which is $1918.35 monthly. Plaintiff's pro rata share is 74% or $65,518.88 annually, [*6]which is $5,459.91 monthly.

Since the childcare/nanny expense of $2,600.00 per month is a necessary expenditure because both parties are employed and the parties' oldest child is severely handicapped, such expense shall also be paid on a pro rata basis by the parties: 26% by defendant ($676.00) and 74% by plaintiff ($1,924.00).

Accordingly, branch "2" of plaintiff's application is GRANTED TO THE EXTENT THAT defendant shall pay directly to plaintiff a lump sum of $2,594.35 ($1,918.35 plus $676.00) per month as and for support of the parties' children. The award of child support is retroactive to the original date of service of this application. Retroactive sums due by reason of this award shall be paid in one lump sum in light of defendant's anticipated March 2011 cash bonus. The first payment of child support shall be made on April 1, 2011, and then on the first of each month thereafter. Defendant may take a credit for sums voluntarily paid for actual support of the children incurred after the making of this motion and prior to the date of this decision for which he has cancelled checks or other similar proof of payment. See Peltz v. Peltz, 56 AD2d 519; Pascale v. Pascale, 226 AD2d 439.

That portion of branch "6" of plaintiff's motion seeking an Order directing defendant to pay, pendente lite, for health insurance coverage which is currently deducted from plaintiff's salary is DENIED. That portion of branch "6" seeking an Order directing defendant to pay any past due and future unreimbursed medical, dental, psychotherapeutic, optometrist, drug and pharmaceutical bills for services already renderedto plaintiff and the parties' children is GRANTED in that defendant shall be obligated to pay 100% of said expenses for the benefit of plaintiff and the parties'children pendente lite.

With respect to branch "5" of plaintiff's motion, the following carrying charges and expenses associated with the marital residence shall be paid on a pro rata basis by the parties- 50% by plaintiff and 50% by defendant: the mortgage, HELOC, real estate taxes, homeowners' insurance, water, fuel, electric, cable, telephone, gardener and maintenance/repairs, pendente lite.

That portion of branch "7" of plaintiff's motion seeking an order, pendente lite, directing defendant to pay all expenses related to the 2010 Honda Odyssey including, but not limited to, insurance, maintenance, repairs, and registration and inspection fees is GRANTED TO THE EXTENT THAT plaintiff shall be obligated to pay 50% of said expenses, and defendant shall be obligated to pay 50% of said expenses. Defendant is to have use of the 2010 Honda Odyssey during his parenting time with the children. That portion of branch "7" of plaintiff's motion seeking an order, pendente lite, directing defendant to pay all expenses related to the 2010 Mercedes Benz ML350 including, but not limited to, insurance, maintenance, repairs, and registration and inspection fees is GRANTED TO THE EXTENT THAT defendant shall be obligated to pay the car payments, insurance, registration and repairs associated with the 2010 Mercedes Benz ML350. Plaintiff shall be obligated to pay all other expenses related to such vehicle such as gas, oil and maintenance. Pursuant to defendant's consent, plaintiff shall have [*7]exclusive use and occupancy of the 2010 Mercedes Benz ML350.

In determining an award of pendente lite counsel fees in matters commenced after October 12, 2010, the Court is required to apply the new pendente lite counsel fee statutes enacted by the legislature. See D.R.L. §237. Interim counsel fee awards are now to be determined pursuant to D.R.L. § 237 which has been amended to provide that there is a "rebuttable presumption that counsel fees shall be awarded to the less monied spouse." Where an interim counsel fee is requested no detailed inquiry is warranted. See Priceph v. Priceph, 52 AD3d 61.

Awards of interim counsel fees to a nonmonied spouse are warranted where there is a significant disparity in th financial circumstances of the parties, in order to avoid compromising the ability of the nonmonied spouse to adequately litigate the case. Id. See Penavic v. Penavic, 60 AD3d 1026.

In this case, there is no doubt that defendant earns considerably more than plaintiff and is the monied spouse.

To date, plaintiff's has paid her counsel $20,000 in fees. Plaintiff counsel's time sheets reflect that thus far they have expended over 50 hours in connection with this matter. Accordingly, branch "8" of plaintiff's motion is GRANTED TO THE EXTENT THAT counsel fees are awarded to plaintiff's counsel in the amount of $30,000.00 to be paid by defendant directly to plaintiff's counsel within 30 days from the date of this Decision and Order. This award is made without prejudice to further applications for additional sums, as necessary at the time of trial or sooner. Ritter v. Ritter, 135 AD2d 421; Jorgensen v. Jorgensen, 86 AD2d 861.

Accordingly, and based on the foregoing, it is hereby

ORDERED that defendant, JEFFREY G., shall pay directly to SALTZMAN CHETKOF & ROSENBERG LLP, a lump sum amount of $30,000.00 as and for legal fees, which shall be paid by CERTIFIED CHECK on or before April 18, 2011; and it is further

ORDERED that upon the failure of defendant to pay plaintiff's counsel as set forth hereinabove, plaintiff's counsel may file an affidavit of non-compliance with the Clerk of the County who shall enter a judgment, with statutory interest as of the date of this Order, in favor of SALTZMAN CHETKOF & ROSENBERG LLP, attorneys for plaintiff, without further proceedings.

This constitutes the decision and order of this Court.

Dated:Mineola, New YorkE N T E R :

March 18, 2011

 

____________________________________

NORMAN JANOWITZ, J.S.C.

.

Footnotes

Footnote 1:Defendant's Net Worth Statement also does not set forth any extraordinary expenses related to Jacob's care.

Footnote 2:The cap on mandatory child support pursuant to the Child Support Standards Act is $130,000 of combined parental income.

Footnote 3:It is undisputed that this is defendant's fixed yearly salary.

Footnote 4:This is the gross yearly income utilized in plaintiff's calculation of child support.