Liebman v Liebman

[*1] Liebman v Liebman 2012 NY Slip Op 52151(U) Decided on November 5, 2012 Supreme Court, Queens County Jackman Brown, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 5, 2012
Supreme Court, Queens County

Barry Liebman, Plaintiff,

against

Donna Gordon Liebman, Defendant.



2079/2012



Flamhaft Levy Hirsch & Rendeiro LLP

BY: Martin Hirsch, Esq.

Attorneys for Plaintiff

170 Old Country Road, Suite 600

Mineola, NY 11501

T: 516-248-5522

F: 516-742-4105

Stanley M. Nagler, Esq.

Attorney for Defendant

1500 Broadway, 21st Floor

New York, NY 10036

T: 212-354-5900

F: 212-354-5924

Pam Jackman Brown, J.

Recitation, as required by CPLR § 2219(a), of the following papers numbered 1 to 8 read on this Order to Show Cause, dated March 22, 2012 and duly submitted on May 24, 2012. considered in the review of this motion seeking an Order: (1) awarding Defendant tax pendente lite temporary maintenance pursuant to Section 236(B)(5A) of the Domestic Relations Law; (2) directing Plaintiff to maintain the existing medical insurance policy for Defendant and/or to pay for same and to pay for all unreimbursed medical expenses of the Defendant; (3) directing Plaintiff to maintain a life insurance policy of no less than one million dollars on his life for the benefits of the Defendant and to pay the premiums for same; awarding Defendant pendente lite counsel fees to Stanley M. Nagler, Esq., in the amount of $15,000.00 pursuant to Section 237(d) [*2]of the Domestic Relations Law; and (5) together with such other and further relief as to this Court may seem just and proper.

PAPERS NUMBERED PapersExhibits Order to Show Cause - Exhibits and Affidavits Annexed40911A-E Answering Affidavit and Exhibits41034A-N Replying Affidavit and Exhibits41097A

Upon the papers listed above, this Order to Show Cause is hereby decided in accordance with this Decision/Order.

Plaintiff commenced the instant proceeding with the filing of a Summons With Notice on January 31, 2012. On March 22, 2012, Defendant files the instant Order to Show Cause seeking an Order: (1) awarding Defendant tax free pendente lite temporary maintenance pursuant to Section 236(B)(5A) of the Domestic Relations Law; (2) directing Plaintiff to maintain the existing medical insurance policy for Defendant and/or to pay for same and to pay for all unreimbursed medical expenses of the Defendant; (3) directing Plaintiff to maintain a life insurance policy of no less than one million dollars on his life for the benefit of the Defendant to pay the premiums for same; (4) awarding Defendant pendente lite counsel fees to Stanley M. Nagler, Esq., in the amount of $15,000.00 pursuant to Section 237(d) of the Domestic Relations Law; and (5) together with such other and further relief as to this court may seem just and proper. Plaintiff opposed the instant applications and submitted an Affidavit in Opposition. On May 24, 2012, both parties appeared with counsel. After oral arguments, the motions were fully submitted.

Temporary Maintenance

Defendant seeks an award of temporary maintenance, pursuant to the Temporary Maintenance Guidelines, as established in New York Domestic Relations Law (hereinafter DRL) §236 (B)(5-a), in the sum of $6,806.75 monthly, based upon Plaintiff's annual income of $272,269.84, as reported on his 2011 W-2, inclusive of Plaintiff's bonus, in the sum of $29,000.00. Defendant further argues that in addition to the sum of $6,806.75 monthly, Plaintiff should be directed to continue to pay the maintenance, mortgage and carrying charges on the marital residence, based upon her poor health and inability to work. Plaintiff argues that his bonus should not be included in his annual income as the bonus is not guaranteed, but acknowledges that Defendant may be entitled to a portion of his bonus, should he receive one. Plaintiff contends that after deduction of his bonus and statutory deductions, his annual income is calculated in the sum of $226,125.19 and the resulting temporary maintenance award is $1,304.56 weekly or $67,837.55 annually.

DRL §236 (B)(5-a) provides statutory guidelines to be applied in determining temporary [*3]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;

(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. Similar to the Child Support Standards Act, annual income is defined as gross income, less FICA and New York City or Yonkers income taxes. Defendant is unemployed and has an income of $0. Plaintiff's annual income as reported on his 2011 W-2 is the sum of $272,269.84. [*4]After statutory deductions for social security taxes in the sum of $4,485.60, Medicare taxes in the sum of $3947.91 and New York City locality taxes in the sum of $10,328.22, Plaintiff's adjusted gross income is $253,508.11. The Court notes that Plaintiff argues that his bonus should not be included as income for the purposes of determining his maintenance obligation, as it is not guaranteed. Plaintiff's bonus in 2011, was the sum of $29,000.00. Although Plaintiff argues that his bonus is not guaranteed and as such should not be included in his income, DRL § 236(B)(5-a)(b)(4) provides that "income" shall be defined as defined in the Child Support Standards Act, within DRL § 240. DRL § 240 1 (1-b)(b)(5)(i) defines gross income as income that "should have been or should be reported in the most recent federal income tax return." A review of the relevant case law regarding the calculation of income for child support purposes suggests that a bonus that is consistently reported in earning statements shall be included as income. (See Heiny v Heiny, 74 AD3d 1284 [2d Dept 2010]). In the instant proceeding, it is undisputed that Plaintiff received a bonus from his employer in prior years. Said bonus was reflected in Plaintiff's annual W-2 statements, and thus should have been reported on Plaintiff's most recent tax return. Thus, Plaintiff's bonus shall be included as income to calculate his temporary maintenance obligation. Accordingly, the parties' adjusted gross incomes are $253,508.11 and $0, respectively.

The Court is next required to perform two calculations using the parties' annual incomes, capping payor's income at $524,000.00. The resulting figures of the two calculations are 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, Plaintiff is the payor spouse with an income of $253,508.11, and Defendant 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. Thirty percent of Plaintiff's income is $76,052.43. Twenty percent of Defendant's income is $0. Thus, the result from the first calculation is $76,052.43.

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. Forty percent of the parties' combined annual income is $101,403.24. Defendant's annual income is $0. Thus, the result of the second calculation is $76,052.43.

The guideline amount for temporary maintenance is the lower of the resulting figures from the required calculations. Therefore, the presumptive temporary maintenance award is $76,052.43 annually, $6,337.70 monthly, $2,925.09 biweekly, or $1,462.55 weekly.

In the instant matter, the Court finds that the presumptive award in the sum of $6,337.70 monthly 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 factor: (q) any other factor which the court shall expressly find to be just and proper.

The statute provides that the Court may consider any other factor which the court deems just and proper. The statute is silent regarding whether the Court shall order the presumptive 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. In the instant proceeding, it is undisputed that Plaintiff has maintained the carrying charges on the marital residence, including the mortgage, maintenance and insurance, in the sum of $1739.91 monthly. Thus, the Court shall [*5]deduct the sum of $1,739.91 from Plaintiff's temporary maintenance obligation in the sum of $6,337.70. Therefore, Plaintiff's temporary maintenance obligation is the sum of $55,173.51 annually, or $4,597.79 monthly, or $2,122.05 bi-weekly, or $1,061.02 weekly. Defendant's application seeking pendente lite maintenance is granted.

ORDERED that Plaintiff is directed to continue to pay the mortgage, maintenance and insurance on the marital residence in the sum of $1,739.91 monthly.

ORDERED that Plaintiff is directed to pay the sum of $1,061.02 weekly to Plaintiff as temporary maintenance.

ORDERED that the Order of temporary maintenance is retroactive to the date of application of, March 22, 2012.

ORDERED that Plaintiff shall receive a credit for the sums of $875.00 paid weekly, directly to Defendant during the pendency of the instant application.

Medical Insurance

Defendant seeks an Order directing Plaintiff to maintain the existing medical insurance policy for Defendant and/or to pay for same and to pay for all unreimbursed medical expenses of the Defendant. DRL § 236 (B)(2)(b)(4) provides that during the pendency of a matrimonial proceeding, each party shall maintain the existing medical, hospital, and dental insurance coverage in full force and effect. Therefore, Plaintiff is directed to maintain the existing medical, hospital and dental insurance coverage, to the extent that such coverage existed at the commencement of this proceeding. Thus, Defendant's application seeking an Order directing Plaintiff to maintain medical coverage is granted.

ORDERED that Plaintiff is directed to maintain the medical, hospital and dental insurance coverage, to the extent that such coverage existed at the commencement of this proceeding, until further Order of the Court.

Defendant also seeks an Order directing Plaintiff to pay all unreimbursed medical expenses of the Defendant. This branch of Defendant's Order to Show Cause is denied, as Defendant is receiving temporary maintenance pursuant to the statutory guidelines.ORDERED that Defendant is directed to pay her unreimbursed medical expenses.

Life Insurance Policy

The Court now turns to the branch of Defendant's Order to Show Cause seeking an Order directing Plaintiff to maintain a life insurance policy of no less than one million dollars on his life for the benefit of Defendant and to pay the premiums of the policy. Plaintiff argues that he has a $500,000.00 life insurance, but should only be required to insure the sum of the annual temporary maintenance.

DRL § 236 (B)(2)(b)(5) provides that during the pendency of a matrimonial proceeding, neither party shall change the beneficiaries of any existing life insurance policies and each party shall maintain the existing life insurance policy in full force and effect. Thus, Defendant's application is granted to the extent that the parties have any existing life insurance policies.

ORDERED that Plaintiff shall maintain the existing life insurance policy in the sum of $500,000.00, in full force and effect, until further Order of the Court; and it is further

ORDERED that the parties are directed to maintain all existing life insurance policies, if any, in [*6]full force and effect, until further Order of the Court.

Counsel Fees

Defendant seeks an award of counsel fees in the sum of $15,000.00 pursuant to DRL § 237(a). Plaintiff argues that by paying maintenance, he will no longer be the "monied spouse" and is not in a position to pay counsel fees.

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]).

In the instant proceeding, it is undisputed that Plaintiff earned approximately $272,000.00 in 2011, while Defendant was unemployed. Therefore, Plaintiff is the monied spouse, and Defendant is the less monied spouse. Thus, there is a rebuttable presumption that Defendant shall be awarded interim counsel fees. However, the statute provides that in exercising its discretion to award interim counsel fees, the court shall consider the circumstances of the case and of the parties. In this case, it is undisputed that Plaintiff's net weekly income, as reflected by Plaintiff's pay stubs submitted by both parties, is approximately $12,000.00. This Court directed Plaintiff to continue to pay the sum of $1,739.91 monthly, as the carrying charges on the marital residence, and the sum of $4,597.79 monthly as temporary maintenance for a total sum of $6,337.70, determined by utilizing the temporary maintenance guidelines. After payment of the carrying charges on the marital residence and the payment of temporary maintenance, Plaintiff is left with one-half of his monthly income to support himself and meet his personal expenses, including necessities such as housing, food, and transportation. Considering the circumstances of this case, the Court finds that an award of interim counsel fees in the sum of $10,000.00 is appropriate in this case. Defendant's application for counsel fees is granted in this sum.

ORDERED that Plaintiff is directed to pay the sum of $3,500.00 to Plaintiff's counsel, Stanley M. Nagler, Esq., on or before December 1, 2012; and it is further

ORDERED that Plaintiff is directed to pay the sum of $3,500.00 to Plaintiff's counsel, Stanley M. Nagler, Esq., on or before February 1, 2013; and it is further

ORDERED that Plaintiff is directed to pay the sum of $3,000.00 to Plaintiff's counsel, Stanley M. Nagler Esq., on or before April 1, 2014.

So Ordered

Dated: November 5, 2012__________________________

Queens, New YorkJSC