Lawlor-Davis v Davis

[*1] Lawlor-Davis v Davis 2012 NY Slip Op 52504(U) Decided on March 23, 2012 Supreme Court, Ulster County O'Connor, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 23, 2012
Supreme Court, Ulster County

Desiree Lawlor-Davis, Plaintiff,

against

Jarrod C. Davis, Defendant.



11-4314



LAW OFFICES OF JAY A. KAPLAN, P.C.

Attorneys for Plaintiff

(Jay A. Kaplan, Esq., of Counsel)

24 John Street

Kingston, New York 12401

BLATCHLY & SIMONSONAttorneys for Defendant

(Bruce D. Blatchly, Esq., of Counsel)

3 Academy Street

P.O. Box 280

New Paltz, New York 12561

Kimberly A. O'Connor, J.

The plaintiff (hereinafter "wife") has filed a motion requesting various forms of pendente lite relief. The defendant (hereinafter "husband") opposes the motion. The parties have resolved some of the issues that are the subject of the wife's motion, therefore, only the issues of child support, temporary maintenance, construction loan payments and counsel fees remain.

The parties were married on August 3, 2002. They have two children, Riley Erin Davis, [*2]born July 30, 2005, and Logan Thomas Davis, born July 1, 2009. The parties agreed to share joint custody, with primary physical custody to the wife. They have also agreed to a visitation schedule. The wife resides in the former marital residence, located at 502 Mountain View Avenue, Hurley, New York, with the two children. This residence is a rented property, as the parties were in the process of constructing a new home when the parties separated. The husband left the marital residence on October 5, 2011, and currently resides at 7 Normandy Court, West Hurley, New York.

The wife is employed in her father's water softening and purification business and earns Thirty-Eight Thousand Two Hundred Thirty-Two Dollars ($38,232.00) per year. The husband is an engineer employed by Central Hudson, and earns One Hundred Eighteen Thousand One Hundred Thirty-Seven Dollars ($118,137.00) per year. The husband's attorney alleges that the husband provides health insurance coverage for the family through his employer, and contributes Ninety-Nine Dollars and Fifty-One Cents ($99.51) to the cost of that coverage on a biweekly basis.

The parties purchased a parcel of vacant land in 2009, with the intention of building a home on the property where the family would reside. They previously owned a house, which they sold in October 2011. In order to build the new house, the parties secured a construction loan in the amount of Four Hundred Seventeen Thousand Dollars ($417,000.00), of which Two Hundred Seventy-Nine Thousand Dollars ($279,000.00) has been accessed. While construction of the home had begun, it has not been completed, and all work has stopped. The parties currently pay One Thousand Six Hundred Sixty-Five Dollars ($1,665.00) per month on the loan.

The wife has requested that this Court award temporary maintenance in the amount of Four Hundred Thirty-Three Dollars ($433.00) weekly, and child support in the amount of Four Hundred Twenty Dollars ($420.00) weekly. In an affirmation signed by the husband's attorney, the husband opposes the motion in part, claiming that the wife's income for 2011 may be higher than her income in 2010, therefore determination of these awards is not possible. The husband's attorney does not provide any basis for such claim. In addition, the husband's attorney posits that the amount requested does not provide an offset for the health care coverage paid for by the husband, nor does it take into account the monthly payment on the construction loan. The husband's attorney notes that the husband is willing to pay child support in the amount of Three Hundred Ninety Dollars ($390.00) per month; however, the basis for that figure has not been provided. The husband does not propose an amount of temporary maintenance that he would be willing to pay.

It should be noted that the husband did not provide an affidavit in opposition to the motion, and the representations by the attorney must be considered hearsay, as the attorney does not demonstrate any first-hand knowledge of the claims made in the affirmation. The affirmation of the attorney includes as an exhibit the 2010 income tax return for the parties, and the husband has submitted a statement of net worth to the Court. The 2010 income tax return and the husband's statement of net worth will be considered by this Court in making a determination regarding the applications currently pending before the Court; however, the husband's attorney's affirmation will only be considered for the arguments presented, and not for the establishment of facts.

For purposes of calculating child support and temporary maintenance, the Court finds that [*3]the wife earns Thirty-Eight Thousand Two Hundred Thirty-Two Dollars ($38,232.00) per year, and the husband earns One Hundred Eighteen Thousand One Hundred Thirty-Seven Dollars ($118, 137.00) per year. After subtracting the FICA deductions, the wife's salary equals Thirty-Five Thousand Six Hundred Seventy-Five Dollars ($35,675.00) per year, and the husband's salary equals One Hundred Nine Thousand Eight Hundred Two Dollars ($109,802.00) per year.

In accordance with the relevant statutes, this Court will calculate the presumptive amount of temporary maintenance first, and then calculate the presumptive amount of child support. Based upon the income amounts listed above, the husband is the presumptive payor spouse for purposes of temporary maintenance. According to DRL § 236, the Court must perform two calculations in order to determine the presumptive amount of temporary maintenance, which are listed below:

30% of income of payor spouse $32,941.00 Less 20% of income of payee spouse $ (7,135.00) Annual maintenance obligation $25,806.00 ($496.00 weekly) Combined income of the parties $145,477.00 40 % of combined income $ 58,191.00 Less income of payee spouse $ (35,675.00) Annual maintenance obligation $ 22,516.00 ($433.00 weekly)

According to the statute, the presumptive amount of temporary maintenance is the lesser of the two numbers. As such, the presumptive amount of temporary maintenance equals Twenty-Two Thousand Five Hundred Sixteen Dollars ($22,516.00) per year, or Four Hundred Thirty-Three Dollars ($433.00) per week.

In order to calculate the presumptive amount of child support, the Court must subtract the amount of maintenance from the payor's income amount[FN1]. However, the wife's income does not include the amount of prospective maintenance for purposes of calculating her income for purposes of child support, as that amount has not been paid (see Domestic Relations Law § 240; Baker v Baker, 291 AD2d 751 [3d Dept 2002]). The calculation of the presumptive amount of child support is as follows: Husband's income$109,802.00 Less maintenance obligation$ 22,516.00 Husband's income for CSSA$ 87,286.00 Wife's income$ 35,675.00 Combined parental income$122,961.00 [*4]CSSA percentage (25%)$ 30,740.25 Husband's percentage$ 21,825.58 per year / ($419.72 weekly) (71% x $30,740.25)

This calculation results in a presumptive child support amount payable by the husband of Twenty-One Thousand Eight Hundred Twenty-Five Dollars and Fifty-Eight Cents ($21,825.58) per year, or Four Hundred Nineteen Dollars and Seventy-Two Cents ($419.72) per week. Taking the two presumptive amounts together, the husband would be required to pay Eight Hundred Fifty-Two Dollars and Seventy-Two Cents ($852.72) per week, or Forty-Four Thousand Three Hundred Forty-One Dollars and Forty Four Cents ($44,341.44) per year, in combined support. When this amount is added to the disposable income attributable to each party under such an award, the wife nets Eighty Thousand Sixteen Dollars and Forty-Four Cents ($80,016.44) per year, and the husband nets Sixty-Five Thousand Four Hundred Sixty Dollars and Fifty-Six Cents ($65,460.56) per year.

Since the enactment of the temporary maintenance legislation in 2010, much has been written analyzing and, in many instances criticizing, the impact of the law. Many of these writings, articles and court decisions have identified the situation often created by the structure of a presumptive amount of both temporary maintenance and child support that creates a fiscal inequity in favor of the payee. In addressing this reversal of economic disparity, the shortfalls of the statutory structure in dealing with this situation become readily apparent.

While the statutes that govern child support and temporary maintenance provide the Court with factors to consider when the Court has determined that the amount of basic child support is unjust or inappropriate, these factors do not specifically provide direct tools for a court to evaluate a significant shift in resources created by the two presumptive support calculations. Courts have dealt with this in slightly different ways depending upon the specifics of each case.

In Margaret A. v. Shawn B. (31 Misc 3d 769 [Sup Court, Westchester County 2011]), the court awarded the presumptive amount for both child support and temporary maintenance, however, the payee was required to pay all of the expenses for the marital residence, as well as all expenses for herself and the children, with the exception of medical, dental, and life insurance coverage.

In Scott M. v. Ilona M. (31 Misc 3d 353, 363 [Sup Ct, Kings County 2011]), the Court noted that "[g]ranting a deviation just because there is a resource shift would be inconsistent with the statutory intent. The economic intent of the statute clearly is to shift resources." The Court relied on the factors relating to the existence and expense of the pre-divorce household, as well as the substantial child care expense obligations that existed in that case, to reach a conclusion that a deviation regarding the temporary maintenance amount was appropriate (id.). The Court reduced the presumptive amount of temporary maintenance by one-third, and awarded the full presumptive amount of child support (id. at 365). It should be noted that the Court declined to utilize any income above the income cap of $130,000.00 for purposes of calculating child support, and specifically noted that basing child support on the first $130,000.00 of income was appropriate ". . .given the amount of maintenance, the pre-standard (sic) of living and amount of resources each party is left with . . ." (id.). [*5]

In Martin v. Buckley (33 Misc 3d 1234[A], 2011 NY Slip Op 52235[U] [Sup Ct, Monroe County 2011]), the Court agreed in principle with the issues relating to legislative intent that were noted by the Court in Scott M., however, the Martin court stated that the court believes that consideration of the size of the award in relation to the total resources available to the parties' (sic) is a permissible qualitative factor under § 236 (B) (5-a) (e) (1). Application of each of the statutory deviation factors is geared to either reduce or increase the presumptive formulaic award. Therefore, consideration of the sheer size of the presumptive award in relation to the parties' total available resourcesis within the scope of, or as ejusdem generis with, the enumerated sixteen deviation factors and thus does not run afoul of the new statute or its intent(emphasis in original).

The Martin court determined that a reduction in the temporary maintenance award was appropriate, and the full presumptive child support award was appropriate (id.).

In the case at bar, this Court is faced with a similar conundrum. In this case, the parties have outlined monthly expenses equaling Nine Thousand Three Hundred Ninety-Three Dollars ($9,393.00) for the wife, and Nine Thousand Two Hundred Twenty-Five Dollars ($9,225.00) for the husband. It must be noted that both the husband and wife included the full amount of the monthly payment on the construction loan, as well as all of the family's automotive monthly costs, on their respective statements of net worth, which results in higher monthly expenses overall than are actually paid. A unique factor in this case relates to the monthly expense for the construction loan for the home that was not completed, and is uninhabitable. Thus, the parties have an added debt relating to their previous future housing plans that is above and beyond their individual actual housing expenses. It is clear that this family has stretched their finances thin, and that there is no extra disposable income available to the parties.

Based upon the pre-divorce separate households maintained by the parties, and the overall assessment of the combined presumptive support awards in relation to the resources available to the parties, this Court determines that a reduction in the presumptive amount of temporary maintenance is appropriate. The Court has determined that a reduction of Thirty-Three Percent (33%), or Seven Thousand Four Hundred Thirty Dollars and Twenty-Eight Cents ($7,430.28), is warranted, thus reducing the temporary maintenance award to Fifteen Thousand Eighty-Five Dollars and Seventy-Two Cents ($15,085.72) per year, or Two Hundred Ninety Dollars and Eleven Cents ($290.11) per week. This amount shall be paid to the wife by the husband commencing on April 1, 2012.

Turning to child support, the Court must adjust the calculations regarding child support that were noted above due to the deviation from the presumptive amount of temporary maintenance. The calculation of the presumptive amount of child support is as follows:

Husband's income $109,802.00 Less maintenance obligation $ 15,085.72 Husband's income for CSSA $ 94,716.28 [*6]Wife's income $ 35,675.00 Combined parental income $130,391.28 CSSA percentage (25%) $ 32,597.82 Husband's percentage $ 23,796.41per year / ($457.62 weekly) (73% x $32,597.82)

This calculation results in a presumptive child support amount payable by the husband of Twenty-Three Thousand Seven Hundred Ninety-Six Dollars and Forty-One Cents ($23,796.41) per year, or Four Hundred Fifty-Seven Dollars and Sixty-Two Cents ($457.62) per week. The Court finds that the presumptive amount of child support pursuant to the CSSA is appropriate. As such, the Court awards the wife child support in the amount of Four Hundred Fifty-Seven Dollars and Sixty-Two Cents ($457.62) per week.[FN2] This amount shall be payable by the husband to the wife commencing on April 1, 2012.

Based upon the wife's application for maintenance and child support in the Complaint filed on October 13, 2011, the amounts awarded by this Court shall be retroactive to that date. The arrears due and owing from October 13, 2011 until April 1, 2012 for both child support and temporary maintenance shall be paid in the amount of Fifty Dollars ($50.00) per week, commencing on April 1, 2012. The husband shall be entitled to a credit for any amounts of child support and/or temporary maintenance already paid.

The wife has also requested that this Court direct the husband to pay the monthly construction loan payment. The husband opposes such application, and according to his attorney's affirmation, the husband proposes that the parties each pay one-half of the construction loan payment each month. In light of the shifting of resources based upon the maintenance and child support obligations imposed upon the husband, the Court determines that the parties shall each be responsible for one-half of the monthly payment on the construction loan.

Finally, the wife has requested an award of counsel fees in the amount of Six Thousand Dollars ($6,000.00). The husband opposes this application, and, in the alternative, requests that should the Court award counsel fees, the same should be directed to be paid out of the remaining [*7]funds available from the construction loan funds. DRL § 237 creates a rebuttable presumption that the "less monied" spouse shall be awarded attorney's fees. Based upon the foregoing analysis of the parties' financial resources, and the child support and temporary maintenance awards, the Court has determined that the wife is no longer the "less monied" spouse, and, as such, declines to award the wife counsel fees.

Based upon the foregoing, it is hereby

ORDERED, that the plaintiff's application for temporary maintenance is granted. The defendant shall pay the plaintiff temporary maintenance in the amount of Fifteen Thousand Eighty-Five Dollars and Seventy-Two Cents ($15,085.72) per year, or Two Hundred Ninety Dollars and Eleven Cents ($290.11) per week. This amount shall be paid to the plaintiff by the defendant on a weekly basis commencing on April 1, 2012; and it is further

ORDERED, that the plaintiff's application for temporary child support is granted. The defendant shall pay the plaintiff child support in the amount of Twenty-Three Thousand Seven Hundred Ninety-Six Dollars and Forty-One Cents ($23,796.41) per year, or Four Hundred Fifty-Seven Dollars and Sixty-Two Cents ($457.62) per week. This amount shall be paid to the plaintiff by the defendant on a weekly basis commencing on April 1, 2012; and it is further

ORDERED, that the defendant shall pay to the plaintiff retroactive child support and temporary maintenance in either a lump sum, or in the amount of Fifty Dollars ($50.00) per week, with one-half being designated for child support arrears, and one-half being designated for temporary maintenance arrears commencing on April 1, 2012, until such time as the arrears have been satisfied. Should one type of arrears be satisfied prior to the other type being satisfied, the defendant will continue to pay Fifty Dollars ($50.00) per week until all arrears are satisfied; and it is further

ORDERED, that the plaintiff's application regarding the payment of the construction loan is denied, and the parties are directed to split the cost of the monthly construction loan payment, commencing on the date in April 2012 when the loan payment is due; and it is further

ORDERED, that the plaintiff's application for interim counsel fees is hereby denied.

This memorandum constitutes the Decision and Order of the Court. The original Decision and Order is being returned to the attorney for the plaintiff. A copy of the Decision and Order together with all other papers are being forwarded to the County Clerk for filing. The signing of this Decision and Order and delivery of the copy of the same to the County Clerk shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule with respect to filing, entry, and notice of entry of the original Decision and Order.

SO ORDERED.

ENTER.

Dated: March 23, 2012

Kingston, New York_________________________________

HON. KIMBERLY A. O'CONNOR

Acting Supreme Court Justice [*8]

Papers Considered:

Notice of Motion for Pendente Lite Relief, dated November 4, 2011; Affidavit of Desiree Lawlor-Davis, sworn to November 4, 2011; Affirmation of Jay A. Kaplan, Esq., dated November 4, 2011 with Exhibits A-E annexed;

Affirmation of Bruce D. Blatchly, Esq., dated November 28, 2011, with Exhibit A annexed;[FN3]

Reply Affidavit of Desiree Lawlor-Davis, sworn to December 6, 2011; and

Statement of Net Worth of Jarrod C. Davis, sworn to December 14, 2011.

Footnotes

Footnote 1: The income amount utilized is the base income minus the FICA deduction.

Footnote 2: The husband's attorney's affirmation suggests that the husband pays Ninety-Nine Dollars and Fifty-One Cents ($99.51) biweekly toward health insurance for the family; however, no credible evidence of this cost was presented to the Court, so the Court declines to address the issue of each party's obligation for a portion of the health insurance costs. In addition, it should be noted that the husband did not include any such costs in his statement of net worth. Notwithstanding the foregoing, the husband is directed to maintain such insurance as he does currently.

Footnote 3: As discussed infra, the affirmation of the husband's attorney has not been considered to establish any facts, but was merely utilized by the Court with regard to the arguments it presented. Exhibit A of the submission contained the parties' 2010 income tax return, and was considered in conjunction with the motion.