Valentin v Valentin
Annotate this CaseDecided on July 11, 2011
Supreme Court, Queens County
Virginia Valentin, Plaintiff
against
Javier Valentin, Defendant.
139/2011
Phyllis C. Solomon, Esq.
Attorney for Plaintiff
488 Madison Avenue, Suite 1120
New York, NY 10022
Javier Valentin
Defendant pro se
519 Bristol Street
Brooklyn, NY 11212
Pam Jackman-Brown, J.
Recitation as required by CPLR § 2219 (a) of the papers considered in review of the Order to Show Cause for an Order: (1) directing the Defendant to continue to pay the mortgage on the marital residence and all other household expenses during the pendency of this action, on the first day of each month; (b) directing that the Defendant pay spousal support in the amount of $1,875.00 per month, during the pendency of this action, on the first day of each month; ( c) directing the Defendant to make all such spousal support payments retroactive to the date of this application; (d) enjoining the transfer of any personal property, real property or any interest in personal property or real property acquired by the parties during the time of the marriage, except for ordinary living expenses; (e) directing that the Defendant continue covering Plaintiff on the health insurance and continue her as the beneficiary on his life insurance policy; (f) granting Plaintiff exclusive occupancy of the marital residence; (g) directing that Defendant pay Plaintiff's legal fees; and (h) granting such other and further relief as this Court deems just and proper.
PapersNumbered [*2]
Order to Show Cause, Affirmation and Affidavit annexed........................1-3
Exhibits Annexed to Order to Show Cause ................................................4a-4e
Supplemental Attorney Affirmation in Support of OSC............................5
Affidavit in Opposition...........................................................................6
Defendant's Statement of Net Worth.......................................................7
Order dated April 6, 2011...........................................................................8
Order dated April 14, 2011.........................................................................9
Mortgage statement dated March 9, 2011..................................................10
Upon the foregoing cited papers, the Decision/Order on the Court is as follows:
This action was commenced with the filing of the Summons and Verified Complaint on January 14, 2011.
Plaintiff-wife (hereinafter Plaintiff) files the instant Order to Show Cause, dated January 13, 2011, for an Order: (a) directing the Defendant to continue to pay the mortgage on the marital residence located at 8706 77th Street, Woodhaven, NY 114211, and all other household expenses during the pendency of this action, on the first day of each month; (b) directing that Defendant pay spousal support in the amount of $1,875.00 per month, during the pendency of this action, on the first day of each month; ( c) directing Defendant to make all such spousal payments retroactive to the date of this application; (d) enjoining the transfer of any personal property, real property or any interest in personal property or real property acquired by the parties during the time of the marriage, except for ordinary living expenses; (e) directing that Defendant continue covering Plaintiff on the health insurance and continue her as the beneficiary on his life insurance policy; (f) granting Plaintiff exclusive occupancy of the marital residence, located at 8706 77th Street, Woodhaven, NY 11421; (g) directing Defendant pay Plaintiff's legal fees; and (h) granting such other and further relief as this Court deems just and proper. Defendant filed an Affidavit in Opposition. On April 14, 2011, the Court heard oral arguments on the instant motion.
Upon the papers and after argument, the Court makes the following findings and Orders.
MORTGAGE AND HOUSEHOLD EXPENSES OF MARITAL RESIDENCE
On April 6, 2011, Defendant consented to maintain the payment of carrying charges, including the mortgage payments and utilities, on the marital residence.
Accordingly, Plaintiff's application for an Order directing Defendant to maintain the payment of carrying charges on the marital residence, including the mortgage payments and utilities, is granted.
IT IS HEREBY ORDERED that although Defendant shall pay all carrying charges on the marital resides which are mortgage payments and utilities, Plaintiff shall make all reasonable efforts to maintain the rental income of the marital residence and all [*3]rents received must be applied towards all the carrying charges of the marital property.
TEMPORARY MAINTENANCE
Plaintiff filed the instant motion seeking temporary maintenance in the sum of $1,875.00 monthly. Plaintiff argues that during the course of the marriage, Defendant was the sole supporter of the family. Plaintiff is unemployed and indicates that Defendant earns a gross salary of $77,835.00 annually. Plaintiff's Statement of Net Worth reflects monthly expenses in the sum of $8,312.00, including housing expenses in the sum of $3,152.00, and utilities in the sum of $1,000.00. Defendant opposes the application and argues that he is unable to pay temporary maintenance in the sum of $1,875.00 monthly, or $937.50 biweekly. Defendant alleges that his net income is $1,500.00 biweekly and his rent is $750.00 monthly. Defendant argues that if he is ordered to pay $1,875.00 monthly as temporary maintenance, he only has $375.00.00, after payment of rent, to pay his own expenses including car insurance, utilities and food.
New York Domestic Relations Law §236 (B)(5-a) provides statutory guidelines to be applied in determining temporary maintenance awards in matrimonial proceedings. Application of the statutory guidelines results in a presumptive award of temporary maintenance. Unless the parties waive the application of the statutory guidelines, the Court must order the presumptive temporary maintenance award unless the court finds that the presumptive award would be unjust or inappropriate. Where the court finds that the presumptive temporary maintenance award would be unjust or inappropriate the court may adjust the presumptive temporary maintenance award upon consideration of the following factors as provided in DRL § 236(B)(5-a)(e)(1):
(a) the parties' standard of living during the marriage;
(b) the parties' age and health;
(c) the parties' earning capacity;
(d) the need of one party to incur education or training expenses;
(e) wasteful dissipation of marital property;
(f) transfers or encumbrances made in contemplation of a matrimonial proceeding without fair consideration;
(g) the existence and duration of a pre-marital joint household or a pre-divorce separate household;
(h) acts by one party against another than have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment;
(i) the availability and cost of medical insurance for the parties;
(j) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;
(k) the inability of one party to obtain meaningful employment due to age or absence from the workforce; [*4]
(l) the need to pay for exceptional additional expenses for the child or children, including, but not limited to , schooling, day care and medical treatment;
(m) the tax consequences to each party;
(n) marital property subject to distribution;
(o) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;
(p) contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and
(q) any factor the court shall expressly find to be just and proper.
Where the Court finds that the presumptive award of temporary maintenance is unjust or inappropriate and adjust the temporary maintenance award, the court shall set forth the presumptive temporary maintenance award, the factors considered and the reasons the court deviated from the presumptive temporary award in a written order.
Applying the statutory guidelines, the Court must first determine the annual income of the parties. Pursuant to the statute, annual income is defined as gross income, less FICA and New York City or Yonkers income taxes. It is undisputed that Plaintiff is unemployed. According to Plaintiff, Defendant's gross income is $77,835.00. Defendant alleges that his net income is $1,500.00 biweekly. According to his Statement of Net Worth, Defendant pays $90.31 weekly in local taxes and $124.41 weekly in Social Security or FICA taxes. According to the Court's calculations, Defendant pays approximately $2,348.06 in local taxes and $3,234.66 in Social Security or FICA taxes, annually. Pursuant to the statute, Defendant's annual income is $72,246.28.
The Court is next required to perform two calculations using the parties' annual incomes, capping payor's income at $500,000.00. The resulting figures of the two calculations is compared. The presumptive award of temporary maintenance is the lesser of the two resulting figures or $0 of the result of the second calculation if less than or equal to $0. In the instant matter, Defendant is the payor spouse with an income of $72,246.28 and Plaintiff is the payee spouse with an income of $0.
For the first calculation, the court is required to subtract twenty percent (20%) of the payee's annual income from thirty percent (30%) of the payor's annual income. In the instant matter, Plaintiff has no income to deduct and thirty percent (30%) of Defendant's annual income is $21,673.88. Thus, the result from the first calculation is $21,673.88.
For the second calculation, the Court is required to subtract the payee's annual income from forty percent (40%) of the parties combined annual income. Again, Plaintiff has no income to deduct, therefore, forty percent (40%) of the parties' combined annual income is equivalent to forty percent (40%) of Defendant's income, for a total of [*5]$28,898.51. Thus, the result of the second calculation is $28,898.51.
The guideline amount for temporary maintenance is the lower of the resulting figures from the required calculations. Therefore, the presumptive temporary maintenance award is $21,673.88 annually, or $1,806.16 monthly, or $833.61 bi-weekly, or $416.81 weekly.
In the instant matter, the Court finds that the presumptive award in the sum of $1,806.16 is unjust or inappropriate and adjusts the award considering the factors as provided in DRL § 236(B)(5-a)(e)(1). Specifically, the Court adjusts the presumptive temporary maintenance award considering factors: (g) the existence and duration of a pre-marital joint household or a pre-divorce separate household and (q) any other factor which the court shall expressly find to be just and proper.
The statute provides that the Court may consider the existence of a pre-divorce separate household to determine if the presumptive temporary maintenance award is unjust or inappropriate. Prior to the commencement of this proceeding, Defendant left the marital residence in November 2010 and established a separate residence. Defendant indicates that he pays rent in the sum of $750.00 monthly. According to his Statement of Net Worth, Defendant's monthly utility expenses are $295.00, in addition to automobile and work expenses. Defendant indicates that his net income is only $1,500.00 bi-weekly and he is unable to pay $1,875.00 bi-weekly as temporary maintenance. After payment of temporary maintenance, Defendant must have sufficient funds to maintain his pre-divorce separate household. Defendant has consented to maintain the mortgage and utilities on the marital residence and pay temporary maintenance in the sum of $500.00 bi-weekly. The Court finds that directing Defendant to make the mortgage and utility payments in addition temporary maintenance payments in the sum of $1,875.00 would leave Defendant with insufficient income to maintain his pre-divorce separate household.
Additionally, the statute further provides that the Court may consider any other factor which the court deems just and proper. DRL §236(B)(5-a) is silent regarding whether the Court shall order the presumptive temporary maintenance award in proceedings in which the payor spouse has agreed or is directed to maintain the mortgage and/or carrying charges on the marital residence. The statute is also silent regarding whether the Court shall direct the payor spouse to pay the mortgage and/or carrying charges on the marital residence in proceedings in which the Court orders the payor spouse to pay the presumptive temporary maintenance award.
In the instant matter, Defendant has agreed to maintain the mortgage on the marital residence. While it is undisputed that the parties derive rental income from the marital residence, the parties dispute the monthly mortgage payment. According to Plaintiff, the monthly mortgage payment, including taxes, is $3,152.00. Defendant argues that the mortgage is $1,120.98, exclusive of the escrow payments. The mortgage statement from Chase bank shows the mortgage payment including escrow through March was $1,976.20 and effective April 1, 2011 the mortgage with escrow increased to $2,121.53. The two [*6]rental apartments in the marital residence generate $2,300.00 in total rental income. The parties' son lived in one of rental apartment that generates $800.00 in income. Plaintiff collects the sum from the son but does not apply it towards the mortgage payments. The issue of the son vacating the apartment due to Plaintiff interference was raised; although, it is unclear if he is vacating on his own volition. All the rental income is usually used towards the carrying charges of the marital residence.
Based on Defendant's consent, it is hereby ordered that Defendant shall maintain the remaining balance of the carrying charges (mortgage, taxes, real estate, utilities) on the marital residence after applying all the rental income in the amount of $2,300.00. Furthermore, if the parties's son vacates the apartment in the marital residence, Plaintiff is directed to use diligent efforts to find a new tenant or she is responsible for the contribution of $800.00 towards the mortgage payments of the marital residence.
Based on Defendant's consent, it is further hereby ordered that $500.00 bi-weekly as temporary maintenance shall be paid to Plaintiff. The Court notes that between Defendant's bi-weekly payments of $500.00 as temporary maintenance and approximately $1,000.00 monthly for carrying charges on the marital residence, Defendant has agreed to pay more than the $1,806.16.Additionally, Defendant has agreed to maintain the mortgage for any amount not covered by the rental income. To the extent that the rental income exceeds the mortgage obligation, as Defendant alleges, Plaintiff is entitled to receive any surplus funds. Defendant's monthly maintenance payments, mortgage payments, and carrying charges payments will exceed the presumptive temporary maintenance award of $1,806.16 monthly.
This Court finds that it would be unjust and inappropriate to direct Defendant to make mortgage payments and pay the carrying charges on the marital residence in addition to directing Defendant to pay the presumptive temporary maintenance award in the sum of $1,806.16. Thus, this Court adjusts the temporary maintenance award and directs Defendant to continue to pay the sum of $500.00 bi-weekly as temporary maintenance.
RETROACTIVITY OF PAYMENTS
Plaintiff requests an Order directing that all spousal support payments be made retroactive to the date of this application. This Court has already directed Defendant to maintain the utilities and mortgage, to the extent that the rental income is not sufficient to cover the mortgage obligation, on the marital residence and to continue to pay $500.00 bi-weekly, as spousal support. The Court notes that on April 19, 2011, this Court directed that utilities bills and arrears for the marital residence through April 2011 be paid from the parties' 2010 tax refund check. Moreover, Defendant indicated that the mortgage obligation was current through April 2011 and there is no showing of any arrearage. Defendant agreed to pay $500.00 bi-weekly as temporary maintenance on April 6, 2011, effective April 14, 2011. [*7]
Accordingly, the branch of Plaintiff's motion seeking that all spousal support payments be made retroactive to the date of this application is denied as moot.
RESTRAINTS
Plaintiff seeks an Order enjoining the transfer of any personal property, real property or any interest in personal property or real property acquired by the parties during the time of the marriage, except for ordinary living expenses. Defendant does not oppose the application.
New York Domestic Relations Law §236(B)(2)(b) provides that the "Notice Provision" or "automatic orders" be served with the Summons with Notice or Summons and Verified Complaint at the commencement of a matrimonial proceeding and require that the orders shall remain in full for and effect during the pendency of the action unless terminated, modified or amended by the Court or by stipulation or agreement between the parties. DRL §236(B)(2)(b)(1) specifically provides that neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of any property individually or jointly held by the parties, without the consent of the other party in writing or court order, except in the usual course of business for customary and usual household expenses or for reasonable attorney's fees in connection with this action.
The Court notes that Defendant was served with the Notice of Automatic Orders on January 18, 2011. Pursuant to DRL §236(B)(2)(b), Defendant was bound by the automatic orders upon service on January 18, 2011.
Therefore, as Defendant is bound by the Automatic Orders as provided in DRL §236(B)(2)(b)(1), the Court denies Plaintiff's application as moot.
HEALTH INSURANCE AND LIFE INSURANCE POLICY
Plaintiff requests an order directing Defendant to continue to maintain Plaintiff on the health insurance coverage and continue her as the beneficiary ono his life insurance policy. Defendant does not oppose this application.
The "automatic orders" or "Notice Provision" codified in DRL § 236(B)(2)(b)(4) provides that neither party shall cause the other party to be removed from the existing health insurance, including medical, hospital, and dental insurance. Each party shall maintain the existing medical, hospital and dental insurance coverage, if any, in full force and effect.
DRL § 236(B)(2)(b)(5) provides that neither party shall change the beneficiaries of any life insurance policy. Each party is required to maintain the existing life insurance policy, if any, in full force and effect.
As previously noted, Defendant was served with the Notice of Automatic Orders on January 18, 2011. Pursuant to DRL § 236(B)(2)(b), Defendant was bound by the automatic orders upon service on January 18, 2011.
Therefore, as Defendant is bound by the Automatic Orders as provided in DRL [*8]§236(B)(2)(b)(1), the Court denies Plaintiff's application as moot.
EXCLUSIVE OCCUPANCY OF THE MARITAL RESIDENCE
Plaintiff seeks exclusive occupancy of the marital residence, located at 8706 77th Street, Woodhaven, NY 11421. Defendant does not oppose the application.
Defendant left the marital residence in November 2010 and established a separate residence. Defendant does not oppose the instant application.
Accordingly, Plaintiff is granted exclusive occupancy of the marital residence, located at 8706 77th Street, Woodhaven, NY 11421.
COUNSEL FEES
Plaintiff seeks an award of counsel fees in the sum of $7,500.00. Plaintiff argues that she has no income and is unable to pay counsel fees in the instant matter. Defendant does not oppose the application.
DRL § 237(a) provides that in a matrimonial proceeding the court may exercise its discretion to direct either spouse to pay the counsel fees of the other spouse. In exercising its discretion, the court shall consider the circumstances of the case. The statute further provides that, "there is a "rebuttable presumption that counsel fees shall be awarded to the less monied spouse." Additionally, courts have held that , "an award of interim counsel fees ensures that the nonmonied spouse will be able to litigate the action, and do so on equal footing with the monied spouse" (Prichep v Prichep, 52 AD3d 61, 65 [2nd Dept 2008]).
The Court finds that there is a disparity in income between the parties. Defendant, the monied spouse, earns approximately $77,835.00 annually, while Plaintiff, the less monied spouse, is unemployed. Plaintiff paid a retainer in the sum of $,1500.00. On April 14, 2011, this Court directed that $1,500.00 of Plaintiff's legal fees be paid from the parties' 2010 tax refund check. As of December 23, 2010, Plaintiff owed $785.00 in legal fees. This Court finds that an award of legal fees in the sum of $3,000.00 is reasonable considering the circumstances of this case. According to the parties' respective statements of net worth, the children of the marriage are emancipated and the only marital asset is the marital residence.
Accordingly, Plaintiff's application for counsel fees is granted. Defendant is directed to pay $1,500.00 within sixty (60) days of the date of this order and the remaining $1,500.00 within one hundred twenty (120) days of the date of this order..
Dated: July 11, 2011So Ordered:
___________________________
PAM JACKMAN BROWN, JSC
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