Shawn M. v Jacqueline M.

[*1] Shawn M. v Jacqueline M. 2016 NY Slip Op 51289(U) Decided on August 15, 2016 Supreme Court, Kings County Sunshine, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 15, 2016
Supreme Court, Kings County

Shawn M., Plaintiff,

against

Jacqueline M., Defendant.



[Redacted]



Vishnick McGovern

By: Joseph Trotti, Esq.

Attorney for Plaintiff

3000 Marcus Avenue, Suite 1E9

Lake Success, NY 11042

Lee Anav Chung White & Kim LLP

By: Salvatore Scibetta, Esq.

Attorney for Defendant

156 Fifth Avenue, Suite 303

New York, New York 10010

Cheryl S. Solomon, Esq.

Attorney for the Children

26 Court Street Suite 700

Brooklyn, New York 11242
Jeffrey S. Sunshine, J.

Procedural History

On August 17, 2015, the defendant ("the wife") moved by order to show cause [motion sequence # 2] requesting the following relief: (1) granting the wife and children, C.M. (age four (4)) and M.M (age one (1)), a continued Temporary Order of Protection originally issued by Family Court on July 8, 2015 against the plaintiff ("the husband"); (2) awarding the wife exclusive use and occupancy of the marital residence; (3) awarding temporary custody of the children of the marriage to the wife; (4) directing the husband to pay $355.66 per month in temporary spousal maintenance to the wife, retroactive to the date of this application; (5) directing the husband to pay $2,411.09 per month in temporary basic child support to the wife, retroactive to the date of this application; (6) directing the husband to pay his pro-rata share of the children's add-on expenses, including but not limited to child care, medical care, medical and education expenses for the parties' children retroactive to this application; (7) directing the husband to pay the carrying costs of the marital residence, including gas, cable, and any other costs incident to the maintenance and use of the residence; (8) ordering that the parties shall have joint use of the marital vehicle; (9) directing the husband to pay counsel fees in the sum of $25,000.00, with further payments as necessary; (10) directing the husband to undergo a court-ordered forensic evaluation; and (11) for such other and further relief as to this Court may seem just and proper.

On August 17, 2015, the husband submitted an affidavit in opposition to the wife's order to show cause.

Pursuant to this Court's order dated March 28, 2016, the wife was granted, on consent, exclusive use and occupancy of the marital residence.

On September 17, 2015, Cheryl S. Solomon, Esq., the attorney for the children submitted an affirmation in response to motion sequence #2.

On September 17, 2015, the wife submitted an affidavit in reply requesting that her order to show cause be granted in its entirety.

A conference was held on October 28, 2015, during which the parties were ordered to produce the last three (3) years business tax returns.

On January 26, 2016, the wife moved by order to show cause [motion sequence # [*2]3] requesting the following relief: (1) adjudging the husband in violation of the Order of Protection issued by this Court on October 28, 2015; (2) compelling the husband to sign the necessary HIPAA release forms which allow the wife access to the husband's counseling records; and (3) granting the wife such other and further relief as the Court deems just and proper.

On January 28, 2016, the husband submitted an affidavit in opposition to the wife's order to show cause and an affidavit in support of the husband's cross-motion requesting that the Court order that (1) the scope of the HIPAA release be as narrow as possible to demonstrate his continued attendance of therapy and include only information that the Court deems proper and absolutely necessary under these circumstances; and (2) a preliminary in camera inspection as to the discoverability of the husband's counseling records by the parties and the Attorney for the Children.

On January 29, 2016, the wife submitted an affirmation in reply to her order to show cause and an affidavit in opposition to the husband's cross-motion.

On January 28, 2016, the attorney for the children submitted an affirmation of the children in response to the wife's order to show cause.

Pursuant to the Order of Protection dated February 29, 2016, the issue of a Final Order was resolved during the course of an evidentiary hearing and the wife on consent was awarded an Order of Protection against the husband without a finding of any wrong doing. The husband agreed to stay away from the wife and the children, with such limited contact as is necessary to effectuate Court-ordered visitation with the children, and refrain from communication with the wife, with such limited e-mail communication between the parties only concerning the health and welfare of the children for a period of 2 years.

Tax returns from both parties were received by the Court on March 25, 2016 and the Court reserved decision.

Motion Sequence #3 has been resolved pursuant to this Court's order appointing a forensic evaluator dated March 28, 2016.

On March 31, 2016, the Court ordered a forensic accountant to audit the husband's business.

Pursuant to the Stipulation dated June 16, 2016, all custodial, visitation, and access issues concerning the children were resolved. The parties agreed that the wife would have legal custody and residential custody of the children and the father would have visitation in accordance with an agreed upon schedule .

Pursuant to the Stipulation dated June 30, 2016, the parties requested that the Court stay the issuance of any Decision and Order relating to motion sequence #2 until July 6, 2016. The parties stipulated and agreed to either submit a full executed stipulation with regard to child support for the issuance of the marriage by July 6, 2016, or in the event that the parties cannot come to an agreement by the stated date, the Court will no longer stay the issuance of such Order.

The parties were unable to come to an agreement regarding all financial issues by [*3]July 6, 2016. Only the financial issues of motion sequence #2 are before the Court.

Parties' Contentions

Pendente Lite Maintenance and Child Support

The Wife's Affidavit

The wife requests that the Court order $355.66 per month in temporary spousal maintenance pursuant to Domestic Relations Law § 236 (B) (5-a) and $2,411.09 per month in child support based upon the Child Support Standards Act, retroactive to the date of this application, August 18, 2015. The wife requests that the Court impute to the husband income of $120,000.00 for the purposes of calculating pendente lite maintenance and child support. She contends that the husband's actual income is difficult to determine because she avers that his business is a bar which conducts primarily cash transactions. The wife avers that based on calculations of the parties' monthly expenses in their respective Statements of Net Worth dated August 12, 2015, the husband's income is approximately $120,000.00. According to the wife's Statement of Net Worth, the wife contends that the total household expenses are $12,189.97 per month and other expenses were $1,000.00 per month. Pursuant to the wife's Statement of Net Worth, she contends that her total annual expenses are be $158,279.64 ($12,189.97 x 12 + $1,000.00 x 12 = $158,279.64).

The wife asserts that she is the less-monied spouse and is currently employed by an asset management company. She reports that her annual income was $84,734.76 in 2014.[FN1] She asserts that during the marriage the husband had a "great deal of cash at hand" and the husband paid for expenses with cash whenever possible. The wife claims that the husband's income was $56,000.00 in April 2014 alone and that the husband paid $4,000.00 to retain an attorney to write a book the same week that he commenced the divorce action.

The Husband's Opposition

The husband contends that the wife's income is almost $120,000.00 per year based on her 2014 W-2 form and 2013 Joint Tax Return, while his salary was $47,956.00 according to his 2013 Joint Tax Return.[FN2] The husband denies that any additional income should be imputed to him relying exclusively on his 2014 tax return income of $48,000.00. The husband denies that his bar is primarily a cash business, as he avers that there is a growing preference for credit and debit card use. The husband argues that even if his income were $120,000.00, the wife would not be entitled to maintenance since the incomes of the parties would be very similar. According to the husband's Statement of [*4]Net Worth dated August 31, 2015, the husband reports total expenses of $5,900.00 per month. Pursuant to the wife's reported total expense in her Statement of Net Worth, he contends that his total annual expense are $70,800.00 ($5,900.00 x 12= $70,800.00).

The Wife's Reply

The wife argues that the husband was able to pay almost $73,000.00 in expenses in 2014 while his 2013 Joint Tax Return indicates his income was $46,956.00.[FN3] She also notes that the husband used his 2013 tax return to calculate his income for purposes of maintenance and child support, rather than his 2014 tax return which is attached to the Statement of Net Worth. The wife argues that "[t]here is simply no way he could have maintained paying the myriad of expense listed on his Statement of Net Worth on no less than $120,000.00 a year." She contends that the husband has paid for vacations and restaurants for him and his girlfriend, a substantial tattoo, as well as counsel fees in the amount of $4,000.00 for a book he never started to write.

Furthermore, the wife contends that the husband has falsely represented what her 2014 W-2 income accurately was as she avers that he has overstated her income by not considering statutory deductions.

Add-On Expenses

The Wife's Affidavit

The wife requests the Court order the husband to pay a 60% pro-rata share of expenses, which she claims he paid during the course of the marriage, including extra-curricular activities, childcare, school cost, un-reimbursed medical, dental, prescription drugs, optical, and therapeutic expenses for the defendant and the children. The wife asserts that the husband currently does not contribute to any family expense as she presently pays the mortgage, cable, health insurance, co-pays, and more than her suggested pro-rata share for childcare. The wife asserts that the babysitting costs are approximately $4,932.00 per month and she cannot continue to pay these expenses on her own. Furthermore, the wife contends that the tuition and school expenses are approximately $5,000.00 yearly and requests that the husband pay his pro rata obligation towards these expenses.[FN4]

The Husband's Opposition

The husband argues that the "suggested 60/40 allocation for costs of add-ons, in addition to her application and requested amount for maintenance and child support, is unwarranted and inappropriate under these circumstances." The husband avers that he currently pays over $6,000.00 per month in expenses for his wife and children and is [*5]"continually incurring significant debt." He contends that he incurs the following expenses: "all grocery purchases for the wife, the children, and himself, the wife's phone bill; babysitter costs of $1,150.00 per week; and other expenses for the children as necessary." The husband argues that the wife has refused to pay her share for childcare of $240.00, and that he has been paying the full amount of $1,150.00 each week for childcare (nearly $5,000.00 per month).[FN5]

The Wife's Reply

The wife avers that she has paid the increase in sum of babysitting costs of $240.00 per week on her own after the birth of M.M. The wife contends that the parties agreed to contribute equally to the increased cost of $240.00 but she avers that she has paid the entire increased cost until the last court date of October 28, 2015.[FN6] The wife asserts that after the last court date of October 28, 2015, the husband has been paying the entire costs of childcare.[FN7] The wife avers that the husband's business pays for her phone bill.

Carrying Costs of the Marital Residence

The Wife's Affidavit

The wife requests in addition to child support and maintenance that the Court direct the husband to pay the carrying costs of the marital residence, including gas, cable, and any other costs incident to the maintenance and use of the residence because he has been and continues to do so.

The Husband's Opposition

In the husband's opposition, he requests that the Court deny the wife's request for the Court to direct the husband to pay carrying costs of the marital residence monthly, including gas, cable, and any other costs incident to the maintenance and use of the residence. The husband contends that the wife saves $250.00 in electric costs per month as it is paid by the building, and she only pays for rent, cable, and gas.

Marital Vehicle

The Wife's Affidavit

The wife requests the Court order that the parties have joint use of the marital vehicle, a 2001 Lexus, and that she have "equal access to the martial vehicle, primarily on the weekends." She avers that during the marriage, she used the vehicle every weekend. [*6]The wife requests that when she does have access to the marital vehicle, the vehicle must be equipped with the two (2) car seats that she acquired for the vehicle. The wife argues that since the husband left the marital residence, she has been unable to have consistent access to the marital vehicle. The wife asserts that the husband does not need the car on weekends but still refuses to let the wife use the martial vehicle. The wife asserts that she desires to use the marital vehicle for activities with the children. She contends that currently she must borrow a friend's car or take the children on the subway. The wife avers that the husband has only provided her with one car seat that is not the one she originally gave him to use for C.M.

The Husband's Opposition

The husband requests that the Court deny the wife's request that the Court order joint use of the marital vehicle, and that the Court order each party responsible for the car seats. The husband argues that the vehicle is in his mother's name and the wife was aware of such.[FN8]

The husband noted that the wife's commute is a train ride and is paid for by her employer. The husband contends that each party should possess their own car seats as the husband has expressed concern that he would be precluded from or delayed in picking up the children if the car seats were shared. The husband expresses that only one car seat is currently required because M.M's baby carrier is sufficient as a car seat at the present time.

The Wife's Reply

The wife alleges that the husband has no valid reason to deny her use of the marital vehicle. The wife expressed that she has already agreed to sign any Stipulation assuring the husband's use of car seats on visitation days.

Counsel Fees

The Wife's Affidavit

The wife requests an order from the Court directing the husband to pay counsel fees in the sum of $25,000.00, with further payments as necessary to the wife's counsel. The wife avers that she is the less-monied spouse and contends that the award of counsel fees is necessary in order to adequately represent herself. She asserts that the complexity of the husband's finances will require substantial work on behalf of counsel. The attorney for the wife has been paid an initial retainer of $5,000.00. The counsel for the wife asserts that his billing rate is $350.00 per hour.

The Husband's Opposition

In the husband's affidavit in opposition, the husband requests that the Court deny the wife's request directing parties to pay counsel fees in the sum of $25,000.00. The husband avers that the award of counsel fees are unwarranted as he contends each party is financially independent and capable of bearing counsel costs. The husband denies that [*7]litigation will require substantial work by counsel and contends that awarding counsel fees to the wife would lead to her continuing the litigation and delaying a potential resolution.

The Wife's Reply

The wife reaffirms that an award of $25,000.00 in legal fees is necessary to continue to litigate this matter. The wife avers that the husband has communicated to her that he is willing to drag the litigation for years.[FN9]

Discussion

Income

A parties rendition of their own income and tax returns need not be adopted by the Court if not credible. See Weitzner v. Weitzner, 120 AD3d 1406, 1407, 992 N.Y.S.2d 576 [2d Dept., 2014]. Id. "A court is justified in imputing income to a spouse when it is shown that the marital lifestyle was such that, under the circumstances, there was a basis for the court to conclude that the spouse's actual income and financial resources were greater than what he or she reported on his or her tax returns." Id; see Domestic Relations Law § 236 (B) (5-a) ; Domestic Relations Law § 240 [1-b]; see also Barnett v. Ruotolo, 49 AD3d 640, 641, 854 N.Y.S.2d 155 [2d Dept., 2008]. The Court may exercise discretion in imputing income to parties when submitted financial documentation contains considerable discrepancies. See Barnett, at 641. The Appellate Division has found that financial documentation contained considerable discrepancies when the party's "financial documentation indicated that his monthly income was only approximately one-third of his stated monthly expenses, and no evidence was submitted to show that these monthly expenses were not being paid in a timely manner." Id. at 640-41.

The Husband's Income

Notwithstanding the fact that the husband contends he earned -$ 5,379.00 in 2015, he operates what appears to be a successful bar in Brooklyn.[FN10] The recitation of his income and available cash flow lacks credibility beyond the pale of reasonableness. He asserts on his income tax return income wages in the amount of $35,122.00 and claims a refund of $6,654.00 for the tax year of 2015 with itemized deductions from his wages of $6,300.00 and $8,000.00 in exemptions (he takes C.M. as an exemption as well as himself). He proffers a business loss from real estate income of $12,500.00 with rents received of $75,822.00 and expenses of $193,165.00 claiming an ultimate loss of $12,500.00 from the real estate venture. On his business tax returns for 2015 he claims gross proceeds in excess of $516,908.00 and he asserts the costs of goods to be [*8]$307,000.00 and lists a gross profit of $209,562.00. He also claims $93,313.00 in "tip payout" on line 5 of Form 1125-A for his 2015 business tax returns. Assuming his claim for taxes, rents and interest are verifiable he still has the benefit of $8,789.00 in depreciation and takes an additional $88,293.00 in other deductions. Of that $88,293.00 in deductions, he asserts a telephone expenses of $29,170.00, utilities expenses of $28,401.00, and auto and truck expenses of $1,339.00. He asserts the value of goodwill at $213,001.00 and that he is the sole shareholder of the business.

Furthermore, pursuant to the husband's Statement of Net Worth, he reports total annual expenses that exceeded his annual income. He reports total expenses of $70,800.00 ($5,900.00 x 12= $70,800.00). The husband reports the following annual expenses: total housing expenses of $22,200 ($1,850.00 x 12 = $22,200), total utility expenses of $3,600.00 ($300.00 x 12 = $3,600.00), total food expenses of $7,200.00 ($600.00 x 12 = $7,200.00), clothing expenses of $3,600.00 ($300.00 x 12 = $3,600.00), total laundry expenses of $600.00 ($50.00 x 12 = $600.00), total un-reimbursed medical expenses of $2,400.00 ($200.00 x 12 = $2,400.00), total household maintenance expenses of $600.00 ($50.00 x 12 = $600.00), total household help expenses of $2,1600.00 ($1,800.00 x 12 = $2,1600.00), total automotive expenses of $2,400.00 ($200.00 x 12 = $2,400.00), total recreational expenses of $2,400.00 ($200.00 x 12 = $2,400.00), and total miscellaneous expenses of $4,200.00 ($350.00 x 12 = $4,200.00).[FN11]

In the husband's Statement of Net Worth, he reports a net worth of $180, 072.00 with total assets of $181, 972.00 and total liabilities of $1,900.00. He reports the following assets: cash in the amount of $3,500.00, securities in the amount of $5,672.00, loans and accounts receivable in the amount of $55,000.00, interest in his business in the value of 100% real estate in the amount of $116,300.00, household furnishings in the amount of $1,000.00, jewelry, art precious objects, etc., in the amount of $500.00. In addition, the husband reports the following liabilities: total accounts payable in the amount of $1,900.00. The husband also reports the following debts: business debt in the amount of $250,000.00 payable to his mother and [another individual], mortgage on the marital home in the amount of $860,000.00, debt of $285,000.00 for an apartment.

The Court notes that he pays out $93,313.00 in tip expenses on a gross profit of $209,562.00. The husband's rendition of his own income and tax returns is not credible.

The Wife's Income

According to the wife's 2015 tax return, she contends that she earns an adjusted gross income of $95,644.00. She asserts on her income tax return, income wages in the amount of $107,992.00 and claims a refund of $10,925.00 for the tax year of 2015. With itemized deductions from her wages of $10,202.00 and $8,000.00 in exemptions (she takes M.M. as an exemption as well as herself. She asserts loss from real estate income of $11,800.00 with rents received of $4,549.00 and total expenses of $9,457.00. She has [*9]other expenses of $3,096.00. According to the wife's Statement of Net Worth dated August 12, 2015, the wife had a total gross income of $107,000.00.[FN12]

Pursuant to the wife's Statement of Net Worth, she reports total annual expenses of $158,279.64 ($12,189.97 x 12 = $158,279.64). The wife reports the following annual expenses: total housing expenses of $28,800.00 ($2,400 x 12 = $28,800), total utilities of $300.00 ($25.00 x 12 = $300.00), total food expenses of $10,680.00 ($890.00 x 12= $10,680.00), total clothing expenses of $4,800.00 ($400.00 x 12 = $4,800.00), total laundry expenses of $2,760.00 ($230.00 x 12= $2,760.00), total insurance expenses of $6695.64 ($557.97 x 12 =$6695.64), total unreimbursed medical expenses of $2,640.00 ($220.00 x 12= $2,640.00), total household maintenance expenses of $4,560.00 ( $380.00 x 12) = $4,560.00, total household help expenses of $59,184.00 ($4,932.00 x 12= $59,184.00), total automobile expenses of $1,200.00 ($100.00 x 12= $1,200.00), total education expenses of $8,700.00 ($725.00 x 12= $8,700.00), total recreational expenses of $8,520.00 ($710.00 x 12= $8,520.00), total miscellaneous expenses of $7,440.00 ($620.00 x 12= $7,440.00 ), and total other expenses of $12,000.00 ($1,000 x 12= $12,000.00).[FN13]

Furthermore, in the wife's Statement of Net Worth, she reports total assets in the amount of $1,953,591.50 with other assets to be determined. She reports the following assets: total checking in the amount of $363.48, total savings in the amount of $10,649.87, total real estate valued at $1,900,000.00, total vested interested in trusts in the amount of $42,578.15. The wife also reports liabilities for accounts payable in the amount of $364.86 with other liabilities to be determined. In addition, the wife reports a mortgage of $860,000.00 on the marital home.

As such, the wife's rendition of her own income and tax returns is credible .

Imputation of Income

As this Court finds the husband's rendition of his own income and his tax returns not credible and the wife's rendition of her own income and returns credible, there is a basis to conclude that the husband's actual income and financial resources were greater than what he reported in his tax returns. This Court finds that the husband's financial documentation contained considerable discrepancies. The husband reports annual expenses approximately double his reported annual income but does not submit evidence demonstrating that such expenses were not being paid in a timely manner. The Court herein grants the wife's application to impute income and finds the wife's recitation of [*10]$120,000 to be accurate and credible and the husband recitation of his income incredible.

Gross Income Calculation for Support Purposes

For purposes of maintenance calculations, annual income is defined as Gross Income Less FICA and New York City taxes, thus the following calculations result in the parties' annual income calculations as follows:

HusbandWife

Imputed Gross Income: $120,000.00Gross Income: $107,992.00

FICA and Medicare: Not Provided [FN14] FICA and Medicare: Not Provided [FN15]

New York City Tax: -$0.00New York City Tax: -$2,906.00

Total Income: $120, 000.00Total Income: $105,086.00

Maintenance

"Domestic Relations Law § 236 (B) (5-a) sets forth formulas for the courts to apply to the parties' reported income in order to determine the presumptively correct amount of temporary maintenance." Kaufman v. Kaufman, 131 AD3d 939, 940, 17 N.Y.S.3d 34 [ 2d Dept., 2015].[FN16]

Mandatory Pendente Lite Maintenance Calculation Pursuant to the Statute:

Calculation A: 20% of payor's income minus 25% of payee's income

Calculation A total-$2,271.50

Calculation B: 40% of combined income minus payee's income

Calculation B total-$15,051.60

The guideline amount is the lessor the Calculation A and B or zero if calculation B is less than or equal to zero:

Calculation A: -$2,271.50

Calculation B: -$1,5051.60

Guideline amount monthly: zero

Guideline amount monthly: zero

Therefore, in accordance with the guideline, the husband's maintenance obligation is zero monthly (zero annually) and as such no further inquiry is warranted at this time.

The husband and wife are the same age as they are both thirty-eight (38) years old. The husband reports that he has training and skills in bar/restaurant management while the wife reports that she has a bachelors degree. In addition, as referred to in this decision, both parties show similar earning capacity. The husband is a bar owner and has [*11]an imputed income of $120,000. The wife is an associate at an asset management company and according to her 2015 tax return, has a gross income of $107,992.00. As such, this Court denies the wife's application of maintenance.

Carrying Costs of the Marital Residence

"[I]t is reasonable and logical' to view the formulas set forth in Domestic Relations Law § 236 (B) (5-a) as covering all the spouse's basic living expenses, including housing costs.'" Woodford v. Woodford, 100 AD3d 875, 877, 955 N.Y.S.2d 355 [2d Dept., 2012] (quoting Khaira v Khaira, 93 AD3d 194, 200, 938 N.Y.S.2d 513 [1 Dept., 2012]. This Court rejects the wife's contention that she is entitled to carrying charges associated with the marital residence in addition to child support at this time.

Child Support

Pursuant to Domestic Relations Law § 240[1-b], The Child Support Standards Act "sets forth a formula for calculating child support by applying a designated statutory percentage, based upon the number of children to be supported, to combined parental income up to the statutory cap that is in effect at the time of the judgment." Gillman v. Gillman, 139 AD3d 667, 669, 31 N.Y.S.3d 164 [2d Dept., 2016]. Where one party is ordered to pay durational maintenance and child support, "that party's income should be reduced by the amount of maintenance paid for the purpose of calculating the child support obligation, and provision should be made to adjust the child support payments as the amount of maintenance changes." Bronstein v. Bronstein, 203 AD2d 703, 794, 610 N.Y.S.2d 638 [2d Dept., 1994]; see, Domestic Relations Law § 240 [1-b] [b] [5] [vii] [C]. The statute requires the Court to multiply the combined parental income figure, up to a cap of $143,000.00, by a designated percentage based on the number of children to be supported, and then allocates that amount between the parents, applying each parent's respective portion of the total income to reach the amount of each parent's support obligation. See Domestic Relations Law § 240[1-b][b][3] [c] [2]; see also Gillman, 139 AD3d 667.

Utilizing the adjusted gross income amounts previously determined herein, the husband's 2015 income for the purposes of calculating pendente lite child support is $120,000.00 and the wife's 2015 income is $105,086.00. As such, the combined parental income for the purposes of calculating child support pendente lite shall be $225,086 ($120,000.00 + $105,086.00 = $225,086.00). The child support obligation in accordance with the Child Support Standards Act [CSSA] for two (2) children is 25% of the combined parental income [see Domestic Relations Law § 240] up to the $143,000.00 cap. Calculating child support on combined parental income up to and including the current statutory guideline cap of $143,000.00, the total annual child support obligation would be $35,750.00 ($143,000.00 x .25 = $35,750.00 ). Accordingly, the husband's pro rata child support obligation (53.31%) would be $19,059.38 annually and the wife's pro rata child support obligation (46.69%) would be $16,690.62 annually.

However, where combined parental income exceeds $143,000—as in the case at [*12]bar—the statue provides that "the court shall determine that amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors set forth in paragraph (f) of this subdivision and/or the child support percentage." Matter of Cassano v. Cassano, 85 NY2d 649, 653, 628 NYS2d 10 [1995] (quoting Family Ct Act 413 [1] [c] [3]). "The court must articulate its reason or reasons for that determination, which should reflect a careful consideration of the stated basis for its exercise of discretion, the parties' circumstances, and its reasoning why there should or should not be a departure from the prescribed percentage." Gillman, 139 AD3d at 669. "In addition to providing a record articulation for deviating or not deviating from the statutory formula, a court must relate that record articulation to the statutory factors." Matter of Pittman v. Williams, 127 AD3d 755, 756, 7 N.Y.S.3d 227 [2d Dept., 2015]; see Bast v. Rossoff, 91 NY2d 723, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998].

"[T]he court may disregard the formula if unjust or inappropriate' but in that event, must give its reasons in a formal written order, which cannot be waived by either party (Family Ct Act § 413 [1] [g])." Cassano, 85 NY2d at 654. "Whenever the basic child support obligation derived by application of the formula would be unjust or inappropriate,' the court must consider the paragraph (f)' factor," including, "the financial resources of the parents and child, the health of the child and any special needs, the standard of living the child would have had if the marriage had not ended, tax consequences, non-monetary contributions of the parents toward the child, the educational needs of the parents, the disparity in the parents' incomes, the needs of other nonparty children receiving support from one of the parents, extraordinary expenses incurred in exercising visitation and any other factors the court determines are relevant." Id. at 649.

The Court of Appeals has held that when "there was sufficient record indication that no extraordinary circumstances were present," application of statutory child support percentage of combined parental income exceeding the statutory cap was justified and not an abuse of discretion. Cassano, 85 NY2d at 655. The Appellate Division has held that the requirements of Cassano were satisfied when the Court set forth in detail that "based upon the standard of living the children would have enjoyed if the parties remained together" the formula set forth in the Child Support Standards Act was to apply to parental income in excess of the statutory cap. Kennedy v. Kennedy, 62 AD3d 755, 757 880 N.Y.S.2d 97 [2 Dept., 2009]. When "[t]here was no basis under the circumstances of [the] case to limit the child support award to the statutory cap," child support should be awarded based upon the combined parental income in excess of the statutory cap See Hymowitz v. Hymowitz, 119 AD3d 736, 743, 991 N.Y.S.2d 57 [2d Dept., 2014]. Such determinations have been made"[i]n view of the standard of living enjoyed by the parties' children during the marriage, and the earnings and assets of the parties." Id.

Based on the clear standard of living and lifestyle that both parties reveal by the [*13]expenses they incur and established during the marriage, as reflected in both parties submissions and affidavits of net worth, earnings, and assets of the parties, the Court uses its discretion to utilize a combined income cap above the statutory limit of $143,000.00 to that of $225,086.00 ($120,000.00 + $105,086.00 = $225,086.00). In reaching this conclusion, the Court has considered the expenses reported in their supporting affidavits and sworn statements of net worth. The wife reports annual expenses totaling $158,279.64 and the husband reports annual expenses totaling $70,800.00. In considering their self-reported expenses and their lifestyle the sum of $143,000.00 would not provide a sufficient basis to the support these two young children. The child support obligation in accordance with the CSSA for (2) two children is 25% of the total combined income exceeding the statutory guideline cap [see Domestic Relations Law § 240], which when calculating yields total child support of $56,271.50 ($225,086.00 x .25 = $56,271.50). Accordingly, the husband's pro rata share (53.31%) of child support would be $30,000.00 annually, $2,500.00 monthly.

The Defendant shall make the first pendente lite child support payment on September 1, 2016. Each subsequent payment shall be made by the husband to the wife on the 1st and 15th of each month thereafter. Child support shall be retroactive to the date of first application. See DRL 236[B][7][a]; see also Schack v. Schack, 128 AD3d 941, 13 N.Y.S.3d 89 [2 Dept., 2015]; Mosso v. Mosso, 84 AD3d 757, 924 N.Y.S.2d 394 [2 Dept.,2011]; McLoughlin v. McLoughlin, 74 AD3d 911, 903 N.Y.S.2d 467 [2 Dept.,2010]; Purcell v. Purcell, 202 AD2d 487, 610 N.Y.S. 2s 805 [2 Dept.,1994]; Schiffer v. Schiffer, 21 AD3d 889, 800 N.Y.S.2d 752 [2 Dept.,2005]; Miklos v. Miklos, 39 AD3d 826, 835 N.Y.S.2d 330 [2 Dept.,2007]. The wife's application for pendente lite child support was made on August 14, 2015. The Defendant's pendente lite child support obligation is $625.00 weekly. The retroactive award of pendente lite child support is $31,875.00 ($625.00 weekly x 51 weeks = $$31,875.00) with a credit for any child support payments actually paid. This retroactive sum shall be paid at the rate of $2,000.00 monthly, in addition to the monthly basic child support awarded herein above.

Add-Ons

Pursuant to Domestic Relations Law § 240(1-b)(c)(4), (5), child care expenses actually incurred by a custodial parent who is working is prorated in the same proportion or percentage as each parent's income bears to the combined parental income. Cimons v. Cimons, 53 AD3d 125, 128-89, 861 N.Y.S.2d 88 [2d Dept., 2008]. Responsibility for future reasonable unreimbursed health care expenses shall be prorated in the same proportion or percentage as each parent's income bears to the combined parental income while responsibility for educational expenses is within a court's discretion. Id.

"Pursuant to the Child Support Standards Act (Domestic Relations Law § 240 [1-b]), where the custodial parent incurs child care expenses as a result of, inter alia, his or her employment, the non-custodial parent may be required to pay his or her proportionate share of such expenses as a supplement to the basic support obligation, and [*14]such expenses shall be prorated in the same proportion as each parent's income is to the combined parental income." Matter of Amos-Richburg v. Richburg, 94 AD3d 1112, 1114 942 N.Y.S.2d 613 [2d Dept., 2012]; see also Matter of Scarduzio v. Ryan, 86 AD3d 573, 926 N.Y.S.2d 909 [2d Dept., 2011]. The Appellate Division has held the non-custodial parent responsible to pay his or her pro rata share of child care expenses when the custodial parent testified that she was working and the child was not old enough to be alone for such long periods of time. See Matter of Amos-Richburg, 94 AD3d at 1114.

The Court maintains discretion on whether to award educational expenses and the parties' share of any amount award. Cimons, 53 AD3d 125. "Pursuant to Family Court Act § 413 (1) (c) (7), the court may direct a parent to contribute to a child's educational expenses, even in the absence of special circumstances or a voluntary agreement of the parties." Matter of Pittman v. Williams, 127 AD3d 755, 757, 7 N.Y.S.3d 227 [2d Dept., 2015]. However, "the court must consider the circumstances of the case, the circumstances of the respective parties, the best interests of the children, and the requirements of justice." Matter of Pittman, 127 AD3d at 757-58 (quoting Manno v. Manno, 196 AD2d 488, 491, 600 NYS2d 968 [2d Dept., 1993]. The Appellate Division has held that absent proof that it would be in the child's best interest to continue attending private school, a parent "should not be responsible for paying her tuition once she is old enough to enter the public school system." Matter of Pittman, 127 AD3d at 757.

As the husband's pro rata child support obligation is 53.31% and the wife's pro rata child support obligation is 46.69%, the pro rata obligation for all the children's child care and pendente reasonable unreimbursed health care expenses is 53.31% for the husband and 46.69% for the wife. Since the wife testifies that she is working as an associate at an asset management company and the children are not old enough to be home alone, the husband is responsible to pay his pro rata share of child care expenses when the custodial parent is at work or traveling and to and from work, retroactive to the date of first application with a credit for payments actually made by each parent.

Educational expenses are denied without prejudice to future application since there is currently no supporting documentation.

Marital Vehicle

In a divorce proceeding, the party seeking an award of property must have an interest in the property. See Davis v. Davis, 133 AD3d 700, 19 N.Y.S.3d 572 [2d Dept., 2015]. The Court denies the Defendant's request for joint use of the 2001 Lexus. According to the Certificate of Title for the vehicle, the plaintiff's mother has sole ownership of the 2001 Lexus. Since the Defendant lacks an interest in the vehicle, this [*15]Court cannot order that the Defendant have access to the vehicle.[FN17]

Counsel Fees

Pursuant to Domestic Relations Law section 237(a), "[t]here shall be rebuttable presumption that counsel fees shall be awarded to the less monied spouse" in a divorce proceedings or action. Mizrahi-Srour v. Srour, 138 AD3d 801, 803, 29 N.Y.S.3d 516 [2d Dept., 2016] (quoting Domestic Relations Law § 237 [a]). The Court may award counsel fees to a spouse to enable that spouse to carry on or defend the divorce action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and the respective parties. In exercising its discretionary power to award attorney's fees, the court may consider, among other things, whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation. See Domestic Relations Law § 237 [a]; see also Samimi, 134 AD3d at 1012-13. "The determination of what constitutes a reasonable attorney's fee is within the Supreme Court's discretion." Cotter v. Cotter, 139 AD3d 995, 996, 30 N.Y.S.3d 828 [2d Dept., 2016]; see Domestic Relations Law § 237[a].

Although there is no substantial disparity between the income of both parties, this Court retains discretion to award counsel fees provided a party has unduly delayed the proceeding. If the Court finds at trial that the husband has delayed the proceeding by obfuscating income as the wife asserts or he delays the matter purposefully as the wife claims in the text referred to in this decision, the Court may impose reasonable counsel fees based upon the parties similar income as determined herein. (Rough v. Kandell, 135 AD2d 700, 702, 522 N.Y.S.2d 599, 601 [2d Dept., 1987]). The wife's request for prospective counsel fees is denied at this juncture without prejudice. This in no way should be construed that at trial either party is precluded from seeking counsel fees.

This shall constitute the decision and order of this Court.

E N T E R

JEFFREY S. SUNSHINE

J. S. C. Footnotes

Footnote 1:According to the wife's Statement of Net Worth dated August 12, 2015, the wife had a gross salary of $75,000.00 and received a gross bonus of $32,000.00 in 2014.

Footnote 2:According to the wife's 2014 W-2, her gross income was $119, 301.62. According to the wife's 2015-W-2, her gross income was $107, 992.00.

Footnote 3:According to the husband's Statement of Net Worth dated August 31, 2015, he has total expenses of $5,900.00 per month.

Footnote 4:In the wife's Statement of Net Worth, she reports expenses of $725.00 for educational purposes per month.

Footnote 5:The husband contends that the children's babysitting costs have increased from $690.00 to $1,150.00. Pursuant to this Court's order dated October 28, 2105, the Husband is responsible for extra costs related to child care over $690.00 per week. The husband avers that the babysitter must now supervise his visits with the children.

Footnote 6:The wife has attached receipts of check withdrawals in the amount of $240.00 dated June 19, 2015, July 2, 2015, and July 31, 2015.

Footnote 7:The wife alleges that the husband's mother has been paying the entire for cost for child care.

Footnote 8:According to the Certificate of Title, the owner of the 2010 Lexus is the husband's mother.

Footnote 9:The wife submitted within her reply the content of an alleged text message from the husband to her dated February 2, 2015. The wife contends that the husband texted, "[He] can drag this out for yrd [sic]."

Footnote 10:On his individual income tax return from 2015, the husband reported that his adjusted gross income was -$5, 379.00.

Footnote 11:The husband reports annual clothing expenses for the children for $1,200.00 ($100.00 x 12 = $1,200.00).

Footnote 12:According to the wife's State of Net Worth, she had a gross salary of $75,000 and a gross bonus of $32,000 in 2014.

Footnote 13:According to the wife's Statement of Net Worth, she contends that the husband pays for the following annual expenses: groceries in the amount of $7,200.00 ($600.00 x 12 = $7,200.00) and $21,600.00 ($1,800.00 x 12 = $21,600.00) in babysitter/nanny expenses. The wife reports annual clothing expenses for the children for $2,400.00 ($200.00 x 12 = $2,400.00).

Footnote 14:According to the husband's 2015 tax returns, no Federal Insurance Contributions Act (FICA) and Medicare taxes were reported.

Footnote 15:According to the wife's 2015 tax returns, no Federal Insurance Contributions Act tax was reported.

Footnote 16:Based on the commencement date of August 14, 2015 this case is governed by the prior temporary maintenance guidelines statute (DRL 236(B)(5-a), which was effective October 13, 2010 to October 24, 2015).

Footnote 17:In considering the lifestyle and actual expenses above the statutory cap pursuant to Cassano (85 NY2d 649, 653, 628 NYS2d 10 [1995]) although not dispositive of the issue the Court notes that the defendant cannot rely on the use of this vehicle.