E.C. v A.C.

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[*1] E.C. v A.C. 2017 NY Slip Op 50315(U) Decided on February 16, 2017 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 February 16, 2017
Supreme Court, Queens County

E.C., Plaintiff,

against

A.C., Defendant.



2062/2016



Attorney for Plaintiff

Jaspan Schlesinger LLP

300 Garden City Plaza

Garden City, NY 11530

Attorney for Defendant

John A. Gemelli, P.C.

105-15 Metropolitan Avenue

Forest Hills, NY 1375
Pam B. Jackman Brown, J.

Recitation, as required by CPLR § 2219(a), of the following papers numbered 1 to 7 read on this Order to Show Cause, dated July 12, 2016 and duly submitted on January 25, 2017, considered in the review of this motion seeking an Order: (1) an award of custody to Plaintiff for custody and child support pursuant to DRL § 240 (1-b); (2) an award of interim maintenance pursuant to DRL § 236 (B)(5-a) and requiring Defendant to pay for all the carrying expenses on the marital home; (3) requiring Defendant to maintain health insurance for Plaintiff and the subject children; (4) an award of interim counsel fees, pursuant to DRL § 237(d) in the amount of no less than $10,000.00; and (5) for such other relief as this honorable court shall deem just and proper.



PAPERS NUMBEREDPapersExhibits

Order to Show Cause - Exhibits and Affidavits Annexed 42006 A-F

Opposition to Order to Show Cause - Exhibits and Affidavits Annexed 42829 A-H

Reply to Order to Show Cause- Exhibits and Affidavits Annexed 42892 A-M

Defendant's Statement of Net Worth, sworn on September 19, 2016, filed on September 20, 2016[*2]Upon the papers listed above, this Order to Show Cause is hereby decided in accordance with this Decision/Order.

Plaintiff commenced the instant matrimonial proceeding with the filing of a Summons and Verified Complaint on February 22, 2016. Plaintiff files the instant Order to Show Cause dated July 12, 2016 seeking an Order: (1) an award of custody to Plaintiff for custody and child support pursuant to DRL § 240 (1-b); (2) an award of interim maintenance pursuant to DRL § 236 (B)(5-a) and requiring Defendant to pay for all the carrying expenses on the marital home; (3) requiring Defendant to maintain health insurance for Plaintiff and the subject children; (4) an award of interim counsel fees, pursuant to DRL § 237(d) in the amount of no less than $10,000.00; and (5) for such other relief as this honorable court shall deem just and proper. Defendant opposes the application. On January 25, 2017, both parties appeared with counsel. The motion was fully submitted on January 25, 2017.



Custody

Plaintiff seeks an award of custody of the parties' three minor children. Defendant opposes the application. The parties reside with the children in the marital residence. Each has raised allegations regarding the other's fitness to parent the children.

It is well settled that a determination of child custody must be based upon the best interests of the child (Eschbach v Eschbach, 56 NY2d 167 [Ct App 1982]). In making a determination of temporary or final custody, the Court shall consider a number of factors, including, the original placement of the child, the length of time of the child's placement, the child's wishes, the relative fitness of the parents, the quality of the respective parent's home environments, parental guidance given to the child, the parent's financial status and each parent's ability to provide for the child's emotional and intellectual development (Fanelli v Fanelli, 215 AD2d 718 [2d Dept 1995]). While a Court may issue an order fixing temporary custody based upon sufficient fact shown by uncontroverted affidavits, "it is error as a matter of law to make an order respecting custody, even in a pendente lite context, based on controverted allegations without having had the benefit of a full hearing" (Carlin v Carlin, 52 AD3d 559, 560 [2d Dept 2008]). (See also, Wagner v Stevens, 143 AD3d 903 [2d Dept 2016]).

In the instant proceeding, Plaintiff alleges that she has always been the primary caretaker for the parties' children. In fact, Plaintiff alleges that Defendant is not "an active parent in any true sense of the concept." Defendant argues that Plaintiff is unfit to care for the children on a temporary or permanent basis. Defendant argues that under Plaintiff's care the children only bathe once per week and that the children are left to do their homework alone while Plaintiff naps or rest. The parties' allegations raise issues of fact regarding the parties' ability to make joint decisions regarding the child's emotional and intellectual development, the relative fitness of the parents, and the parties' ability to [*3]communicate regarding major and minor decisions affecting the children. The complex nature of the custody aspects of this proceeding requires a full hearing, which the Court is unable to complete at this time. Therefore, Plaintiff's application seeking temporary custody is deferred to the trial court.



Temporary Maintenance

Plaintiff seeks an award of temporary maintenance in the sum of $869.24 monthly, based upon an imputed income to Defendant in the sum of $90,000.00. Defendant opposes the application and argues that he is unable to pay an award of temporary maintenance, as he is responsible for all expenses in the marital home.

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 guideline amount of temporary maintenance. Unless the parties waive the application of the statutory guidelines, the Court must order the guideline amount of temporary maintenance award unless the court finds that the guideline amount of temporary maintenance would be unjust or inappropriate. Where the court finds that the guideline amount of temporary maintenance award would be unjust or inappropriate the court may adjust the guideline amount of temporary maintenance award upon consideration of the factors set forth in DRL § 236(B)(5-a)(h)(1). Where the Court finds that the guideline amount of temporary maintenance is unjust or inappropriate and adjusts the guideline amount of temporary maintenance award, the court shall set forth the guideline amount temporary maintenance award, the factors considered and the reasons the court deviated from the guideline amount of temporary award in a written order.

Applying the statutory guidelines, the Court must first determine the annual income of the parties. DRL § 236 (B)(5-a)(a)(4) defines income as income as defined in the child support standards act without subtracting maintenance paid to a spouse that is a party to the instant action. The Child Support Standards Act, codified in DRL § 240 (1-b) defines income as gross income as should have been or should be reported in the most recent tax return, minus statutory deductions for New York or Yonkers income or earning taxes actually paid and federal insurance contribution act (FICA) taxes actually paid. In the instant proceeding, Plaintiff's 2015 tax return, annexed as exhibit B to the instant Order to Show Cause, reflects an income in the sum of $5,350.00, including $3,300 in wages and $2,050.00 in business income. Plaintiff is purportedly a freelance photographer, but failed to annex a W-2 or 1099. Defendant's 2015 W-2, as annexed to his Statement of Net Worth and filed with the Court on September 20, 2016, reflects a gross income in the sum of $87,628.68. After deducting the sum of $1,266.15 for Medicare taxes, the sum of $5,413.88 for Social Security taxes and the sum of $2,859.82 for NYC locality taxes, Defendant's income is determined to be $78,088.98. Thus, the parties' incomes are determined as $5,350.00 and $78,088.98, respectively.

The Court is next required to perform two calculations using the parties' annual incomes, capping payor's income at $178,000.00. The resulting figures of the two calculations are compared. The guideline amount 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 $78,088.98 and Plaintiff is the payee spouse with an income of $5,350.00.

Assuming, arguendo, that there is no award of child support in this matter, the result of the first calculation is $22,356.69. The result of the second calculation is $28,025.58. Therefore, the guideline amount of temporary maintenance is $22,356.69 annually, or $1,863.06 monthly, or $931.53 semi-monthly, $859.87 bi-weekly, or $429.87 weekly. Assuming arguendo, that this Court directs Defendant to pay temporary child support to Plaintiff, the result of the first calculation is $14,280.30. The result of the second calculation is $28,025.58. Therefore, the guideline amount of temporary maintenance is $14,280.30 annually, or $1,190.02 monthly, or $595.01 semi-monthly, $549.24 bi-weekly, or $274.62 weekly.

If the Court were to deduct the expenses of the mortgage, homeowner's insurance and real estate taxes from Defendant's income,[FN1] Defendant's income is calculated in the sum of $48,688.98. Assuming, arguendo, that there is no award of child support in this matter, the result of the first calculation is $13,536.69. The result of the second calculation is $16,265.59. Therefore, the guideline amount of temporary maintenance is $13,536.69 annually, or $1,128.06 monthly, or $564.03 semi-monthly, $520.64 bi-weekly, or $260.32 weekly. Assuming arguendo, that this Court directs Defendant to pay temporary child support to Plaintiff, the result of the first calculation is $8,400.30. The result of the second calculation is $28,025.58. Therefore, the guideline amount of temporary maintenance is $8,400.30 annually, or $700.03 monthly, or $350.02 semi-monthly, $323.09 bi-weekly, or $161.54 weekly.

It is undisputed that Defendant is responsible for the carrying charges of the marital residence. Although Plaintiff credits Defendant with the payment of the mortgage and asks that the sum of $29,400.00 be deducted from Defendant's income prior to calculating the guideline temporary maintenance award, it is undisputed that Defendant is also responsible for payment of all utilities in the marital residence. According to Plaintiff, Defendant has been the sole source of income during the marriage. Although Plaintiff argues that Defendant stopped supporting her and the children financially, there is no evidence to suggest that any marital expense is outstanding or in default. The Court finds that the guideline amount of temporary maintenance in the sum of $8,400.30 annually, or $700.03 monthly, or $350.02 semi-monthly, $323.09 bi-weekly, or $161.54 weekly, is just or inappropriate.

ORDERED that Defendant shall pay to Plaintiff the sum of $700.03 monthly, as temporary maintenance, commencing March 12, 2017, and on the 12th day of every month thereafter, effective July 12, 2016, until further Order of the Court; and it is further

ORDERED that Defendant's arrears are fixed in the sum of $6,300.27; and it is further

ORDERED that Defendant shall pay arrears in the sum of $100.00 monthly.

In accordance with DRL § 236 (B)(5-a)(m), Plaintiff shall be responsible for the payment of the utilities in the marital residence (including fuel oil, gas, electricity, water, telephone and cable). Accordingly, it is

ORDERED that commencing March 12, 2017, Plaintiff shall be responsible for payment of the utilities in the marital residence, including fuel oil, gas, electricity, water, telephone, and cable until further Order of the Court; and it is further

ORDERED, that Defendant's payments toward the utilities of the marital home (i.e., fuel oil, gas, electricity, water, telephone and cable) for the period of July 12, 2016 to March 12, 2017, shall be credited toward the arrears in temporary maintenance; and it is further

ORDERED, that Defendant shall be responsible for the mortgage, homeowner's insurance, real estate taxes and other expenses of the marital residence, including household repairs and snow removal until further Order of the Court.



Temporary Child Support

Plaintiff seeks an award of temporary child support. Defendant opposes the application.

DRL § 236(B)(7)(a) authorizes the Court to direct either or both parents to pay child support. Where information regarding the parties' income and assets is available, the Court may make an order of temporary child support in accordance with the Child Support Standards Act.

The Child Support Standards Act provides a numeric formula for calculating child support awards. Plaintiff's income is determined as $13,750.30, including the sum of $8,400.30, as temporary maintenance. Defendant's income is determined as $40,288.68, after deducting the sum of $8,400.30 payable as temporary maintenance.

The combined parental income is calculated in the sum of $54,038.68. The parties' proportionate shares of the combined parental income are twenty-five percent (25%) and seventy-five percent (75%), respectively. The applicable child support percentage is twenty-nine percent (29%) as the parties have three unemancipated children. Applying the applicable child support percentage to the combined parental income, results in a combined basic child support obligation in the sum of $15,671.21. Defendant's pro rata share of the basic child support obligation is seventy-five percent, as his proportionate share of the combined parental income is seventy-five percent. Accordingly, Defendant's basic child support obligation is $11,753.40, annually or $979.45 monthly.

Pursuant to DRL § 240 1-b (f), the Court must direct the non-custodial parent to [*4]pay his or her pro rata share of the basic child obligation, unless the court finds that the pro rata share is unjust or inappropriate in consideration of the factors enumerated in DRL § 240 1-b (f). The parties continue to reside together in the marital residence. There is a disparity in the parties' incomes. Plaintiff is unemployed and Defendant has been directed to pay maintenance to Plaintiff. Because the parties continue to reside together and the household has not dissolved, the children continue to maintain the same standard of living. Although both parties dispute the other's involvement in the children's lives, both parents make non-monetary contribution to the children's care and well-being. There is no evidence that either parent has any educational needs. Neither party has children who are not subject to the instant action. Neither party incurs expenses in visiting with the children, as the parties reside together in the marital residence. Defendant is obligated to maintain the mortgage and other marital expenses while Plaintiff is responsible for paying the utilities in the marital residence. Thus, the Court finds that it would be unjust or inappropriate to direct Defendant to pay the sum of $979.45 monthly to Plaintiff as temporary child support. The Court finds that the sum of $489.72 monthly is appropriate. Thus, Plaintiff's application seeking temporary child support is granted. Accordingly, it is

ORDERED that Defendant shall pay to Plaintiff the sum of $489.72 monthly, to Defendant as temporary child support, commencing March 12, 2017, and on the 12th day of every month thereafter, effective July 12, 2016; and it is further



ORDERED that Defendant's arrears are fixed in the sum of $4,407.48; and it is further

ORDERED that Defendant shall pay arrears in the sum of $50.00 monthly.

Moreover, the parties are responsible for twenty-five percent (25%) and seventy-five percent (75%), of the children's extracurricular, educational, and unreimbursed health expenses, in accordance with the Child Support Standards Act.



Counsel Fees

Plaintiff seeks an award of counsel fees pendente lite in the sum of no less than $10,000.00 to carry on this proceeding. Defendant opposes the application. Defendant argues that he is unable to pay counsel fees in addition to the marital expenses. Defendant further argues that Plaintiff has sufficient means to pay for her attorney.



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 [2d Dept 2008]).

In this proceeding, Plaintiff seeks an award of interim counsel fees in the sum of [*5]no less than $10,000.00. Plaintiff argues that she is the non-monied spouse and Defendant is her primary source of income. Plaintiff is a freelance photographer and her employment throughout the marriage was sporadic. Although Defendant has customarily paid the household and marital expenses, this Court has directed Plaintiff to bear responsibility for the payment of the household utilities and her proportionate share of the children's expenses. Defendant has been directed to maintain the mortgage and other household expenses, in addition to making payments of temporary maintenance, child support, and seventy-five percent of the children's add-on expenses. A review of the parties' Statements of Net Worth and motion papers indicates that this matter is a garden variety matrimonial proceeding. The marital residence is owned by the parties. Neither party has retirement benefits. The issues of custody and parental access are contested. Plaintiff has retained three attorneys during this proceeding. Although Plaintiff claims she has paid her attorneys with funds borrowed from her parents, said loans are not reflected on her Statement of Net Worth. Notably, Plaintiff claims that to have borrowed funds from her father for necessaries such as food, but failed to present any evidence to substantiate her claim.

Considering the facts and circumstances of this case, the parties' respective financial circumstances and the interests of justice, Plaintiff's application seeking counsel fees is denied.



Health Insurance

Plaintiff withdrew her claim seeking an Order directing Defendant to maintain health insurance coverage for herself and the parties' three children.

All relief not specifically granted or denied is deemed denied.

The above constitutes the Decision and Order of the Court.

So Ordered,



Dated: February 16, 2017__________________________

Queens, New YorkHon. Pam Jackman Brown, JSC

Footnotes

Footnote 1:According to Plaintiff, the mortgage, homeowner's insurance and real estate taxes are $2,450.00 monthly or $29,400.00 annually.



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