H.G. v N.K.

[*1] H.G. v N.K. 2013 NY Slip Op 51529(U) Decided on September 9, 2013 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 9, 2013
Supreme Court, Kings County

H.G., Plaintiff,

against

N.K., Defendant.



[redacted]

Jeffrey S. Sunshine, J.

The Court is called upon to determine whether a pendente lite award of maintenance and counsel fees to the defendant isappropriate where the defendant acknowledges that he purposefully concealed his unemployment from the plaintiff during the final seven (7) years of the parties' marriage and stopped filing the parties' joint tax returns in 2007. The defendant claims that his financial failures during the marriage were a result of his mental health illness which, he alleges, the [*2]plaintiff, who holds a doctorate degree in psychology and is engaged in private practice, knew about prior to the marriage. The defendant admits in sworn papers that he purposefully misled the plaintiff to believe that he was employed during the last seven (7) years of the parties' marriage; however, he alleges that the plaintiff was complicit in any financial losses the parties suffered due to his investment choices and his failure to file tax returns between 2007 and 2011 because she put him in charge of the parties' finances, without supervision, despite knowing of his long history of mental illness and financial failures.

Facts and Procedural Background

The defendant-husband moved by notice of motion, dated April 8, 2013, for an Order of this Court: (1) granting him an award of tax-free interim maintenance in the sum of $6,000.00 monthly; (2) directing the plaintiff-wife to continue to pay any and all carrying charges on the marital residence in Brooklyn, including but not limited to rent payments, maintenance and repairs, insurance, gas, electric, security, telephone, cable and internet/DSL retroactive to the date of this application; (3) directing plaintiff to continue to pay directly all expenses associated with the parties' automobile, including but not limited to insurance and repairs and directing the plaintiff to continue to provide to defendant reasonable use of and access to the parties' automobile at reasonable times; (4) directing plaintiff to maintain all current policies of life, disability, and health insurance for the benefit of the defendant and to pay 100% of all unreimbursed medical, hospital, dental, optical and pharmaceutical expenses and costs, and all medical co-pays and deductibles, pendente lite, including all costs associated with the defendant's individual psychological counseling; (5) directing plaintiff to pay an interim counsel fee to defendant in the sum of $25,000.00 with leave granted to defendant's counsel to seek further counsel fees prior to and/or at trial; (6) appointing a neutral forensic expert to evaluate plaintiff's medical practice with plaintiff solely financially responsible for the costs of the valuation, subject to reallocation after trial; and (7) such other and further relief as the Court may seem just and proper. Plaintiff filed an affirmation and affidavit in opposition, dated April 23, 2013, opposing all relief sought by the husband. Defendant filed a reply affirmation and affidavit, dated April 26, 2013. The Court heard oral argument on the motion on April 30, 2013. Both parties are represented by private counsel of their own choosing.

The parties were married on June 5, 1999. Defendant-husband is 64 years old and plaintiff-wife is 54 years old. The husband was 50 years old and the wife was 40 years old when the parties married. There are no children of the marriage. The wife is a psychologist with a doctorate degree and is engaged in private practice. The husband has a high school degree and earned some college credits prior to the marriage.

The husband argues that he is the less-monied spouse and that the wife should be required to pay him pendente lite maintenance in compliance with the temporary maintenance guidelines in Domestic Relations Law [DRL] 236(B)(5-1). The wife argues [*3]that the husband dissipated marital assets and fraudulently misled her to believe that he was gainfully employed during the parties marriage by actively hiding the fact that his business failed in 2005 and that he was no longer earning any income during the last seven (7) years of the parties' marriage. She further argues that a deviation from the presumptively correct sum of monthly pendente lite maintenance would be appropriate based on the husband's fraudulent actions during the marriage which, she argues, amount to wasteful dissipation as contemplated by the statute (see DRL 236 [B] (5€"a) (e) (1) (e)).

The husband avers that he worked in information technology (hereinafter referred to as "IT") earning between $20,000.00 and $50,000.00 annually when the parties met.[FN1] The husband contends that throughout his employment history he had difficulty keeping jobs and that he was "routinely laid off from jobs or had client's discontinue contracts" with him because he could not "meet their needs or demands...." He avers in sworn papers that he has a "tendency to misrepresent [his] way out of most conflicts" and that he survived financially prior to marrying the plaintiff based on "substantial financial support from [his] parents." He further avers that his "psychological condition" prevents him from "working in anything but...basic, low-stress part-time jobs perhaps even for minimum wage..." He alleges that prior to marrying the plaintiff he discussed his "mental health issues," employment history and financial failures with her and avers that he detailed to her his history of treatment for "depression and indicators of bipolar disorder...." He also avers that he told the plaintiff that he had a "history of exaggerating" his financial abilities while in intimate relationships, which had "caused financial disaster" for past girlfriends.

He contends that the wife was "always...responsible for supporting" the parties during the marriage and that the parties' "marital understanding" was that she would be the breadwinner and that he would forego pursuing a more lucrative career so that he was available to "travel all over the world with her and take summers in Montauk...." He posits that throughout the marriage the wife "demanded" that he place her "self-interest in living luxuriously" over allowing him to develop his career and business and that, as a result, the wife "suffocated" any chance he had of becoming self-supporting. He posits that he has been out of the IT industry for too many years and is too advanced in age to be competitive in the job market even if he sought the necessary education to become current on IT developments since 2004 when he stopped working.

The husband alleges that in 2003 the wife encouraged him to leave his commission-based IT job in order to start his own IT consultation business, despite knowing of his past financial failures, so that he would not have to share commissions with a placement firm. He contends that his mental health condition caused him to "overextend" himself and to "misrepresent" his skills to clients and that he "made promises" to clients that he could not deliver on and that, as a result, his business [*4]eventually "dried up altogether" in 2004. The husband admits in sworn papers that he never told the wife that his business "dried up" and that he actively misled the wife into believing that he "had steady income" from 2004 until she discovered he had not been working for many years sometime in 2012.

The husband contends that early in the marriage the wife "entrusted" him with managing the parties' finances, including investing distributions of approximately $220,000.00 annually from the sale of stock shares between 1999 and 2001 that she received from her family, despite her knowledge of his "mental condition" and past financial failures. He avers that the wife "delegated" management of all of their bills and finances to him and that she did not monitor their finances at all between 2000 and 2012. The husband alleges that his "mental condition" lead him to make "manic" investments that frequently led to market losses. He admits that his "manic" investment choices resulted in the lose of the more than $600,000.00 from the sale of the wife's stock shares in the early years of the parties' marriage. The husband contends that the wife knew about these investment losses but that she still did not monitor his financial decisions.

The husband avers that what money he did not lose from the parties' investment accounts he covertly used to pay the parties' daily living expenses from 2004 to 2009 because the wife insisted on living a lavish lifestyle well beyond the parties' means, including: yearly scuba diving trips routinely costing upwards of $15,000.00; summer rentals in Montauk costing upwards of $20,000.00 to $28,000.00 each summer; dinners at "exclusive restaurants like Bouley"; buying one another "nice" birthday presents; and the wife buying "expensive rugs". He avers that he repeatedly warned the wife that they were living beyond their financial means, but that she "always assumed she could rely on her parents" for financial assistance, who the husband alleges are extremely wealthy.

The wife denies the husband's claims that the parties lived a lavish lifestyle and spent money excessively during the marriage. She argues that the vacation choices and purchases she made during the marriage were based on the husband's "constant lies" that "he was working, that he was making big profits in [the parties'] brokerage accounts, and that [the parties] had plenty of money." She alleges that the spending choices she made during the marriage were based on the husband's representations regarding their finances and that she relied on his representations.

The husband avers that he inherited approximately $500,000.00 in August 2006 when his father passed away and that he used some of the money to pay marital tax bills from 2004 and 2005 and that he deposited approximately $325,000.00 into an E*Trade account. He avers that the parties continued to live lavishly between 2007 and 2009 "fueled" by his inheritance and that he paid marital expenses, including the rent, some utility bills, unpaid taxes and other "luxuries that [the parties] could not afford" from his inheritance as he was no longer earning any income and he did not want the wife to find out that he was unemployed. He avers that the wife knew that he subsidized the parties' marital lifestyle with his inheritance money during those years but he acknowledges that [*5]he continued to purposefully conceal his unemployment from her.

The husband concedes that he stopped filing the parties' joint tax returns in 2007 without the wife's knowledge. He avers that he did so because the parties did not have sufficient funds to pay their tax bills and to continue to enjoy their luxurious lifestyle. He contends that he was "embarrassed" that he was not earning any income but that his IT skills were outdated after three (3) years of unemployment and that he did not believe he would be able to find any employment. He also claims that the wife insisted that he take long vacations with her so he was unable to explore his career options after his business failed in 2004. He concedes that when the wife pressed him about their tax returns he prepared misleading tax returns to show her but did not file them. He also acknowledges in sworn papers that he intercepted past-due tax notices so that the wife would not know that he did not file the parties' joint tax returns after 2007. The husband avers that he "never intended to lose the money and not file or pay taxes" but that he "had no control over [himself]".

The husband contends that his $350,000.00 of inheritance he deposited into the E*Trade brokerage account, like the more than $600,000.00 of the wife's distribution money received between 1999-2002, was gone by 2009 between market losses and paying marital expenses to conceal his unemployment from the wife. He avers that the parties have "relatively few assets" other than the wife's medical practice to distribute. He concedes that the parties' investment accounts were lost "in part due to bad investment decisions" that he contends the wife left him in charge of, notwithstanding the fact that she "was intimately aware" that his pathology allegedly left him unable to manage complicated financial transactions. The husband argues that the wife was "complicit" in any financial losses the parties suffered during the marriage because she "fail[ed] to monitor the investment accounts" despite being "aware of [his] struggles with mental illness" and her knowledge of his inabilities to handle complex financial matters. He alleges that the wife should have been more careful when she entrusted him with the parties' finances because of her experience as a mental health professional and her alleged knowledge of his past financial difficulties. He avers in his sworn Reply that the wife "should have known that leaving [him] in charge of [the parties'] finances could lead to financial problems...."

Pursuant to the husband's affidavit of net worth, dated March 2013, his monthly expenses are as follows: (1) rent $3,100.00; (2) gas $16.00; (3) electricity $150.00; (4) telephone $75.00; (5) groceries $400.00; (6) dining out $250.00; (7) liquor/alcohol $250.00; (8) home entertainment $25.00; (9) clothing for the husband $75.00; (10) clothing for the wife $75.00; (11) laundry at home $10.00; (12) dry cleaning $25.00; (13) life insurance $0; (14) fire, theft & liability insurance $60.00; (15) automotive insurance $350.00; (16) medical insurance [family] $1,500.00; (17) unreimbursed medical $50.00; (18) unreimbursed dental $70.00; (19) surgical nursing, hospital $10.00; (20) automobile gas and oil $150.00; (21) automobile repairs $100.00; (22) automobile parking and tolls [*6]$25.00; (23) vacation $100.00; (24) tapes, CD's $140.00; (25) health club $150.00; (26) beauty parlor/barber $30.00; and (27) gifts $25.00. The husband's monthly expenses total $7,211.00.[FN2] It is unclear from the husband's affidavit of net worth whether his claimed expenses are for himself or for the parties jointly since he lists expenses such as "clothing for the wife $75.00". In the "Notes Payable" section of his affidavit of net worth the husband avers that he borrowed the sum of $27,500.00 from his mother to pay his counsel fees associated with this matrimonial action. The husband did not attach any documentation regarding any alleged "note payable" to his mother. The husband avers that he has credit card debt totaling $27,189.00. Pursuant to his affidavit of net worth, the husband lists his assets as $64.00 in his checking account as of January 4, 2013, a pearl and gold necklace and bracelet valued in excess of $500.00 (no specific value provided), and a mother of pearl bracelet valued in excess of $500.00 (no specific value provided).

The husband contends that based on her affidavit of net worth, dated May 1, 2012, the wife's projected income for 2012 was $240,000.00, not taking into account any "add-back" for personal expenses paid through her business. As such, the husband posits that the Court should award him pendente lite support by applying the temporary maintenance guidelines to the parties' respective incomes as follows: his income assessed as $0 and the wife's income assessed as $240,000.00. Based on that calculation, the husband argues that the presumptively correct sum of interim maintenance awarded to him should be $6,000.00 monthly [$72,000.00 annually]. The husband further seeks a court order requiring the wife to continue paying all of the parties' monthly expenses, including rent and utilities associated with the marital residence where the parties reside. The husband further argues that his (1) advanced age; (2) limited earning capacity; (3) significant need for training in order to become self-supporting given his years of unemployment; (4) the unlikelihood of him finding meaningful employment due to age and absence from the workforce; (5) lack of property subject to equitable distribution; and (6) his lifetime struggles with "mental illness" justify an award of the presumptively correct pendente lite maintenance as calculated under the statute without any reduction for the wife's payment of his daily living expenses or deviation based on wasteful dissipation.

The husband did not annex any tax returns to his application claiming that he has been unemployed since 2004 and admitting in his sworn statement that he did not file the parties' joint tax returns from 2007-2012. The husband contends that the wife reported between $100,000.00 and $150,000.00 in gross income annually during the parties' marriage from her "thriving" private psychology practice before he stopped filing the parties' tax returns but, he alleges, her actually gross income is much higher because during the parties' marriage she improperly categorized many personal expenses, [*7]including expenses for travel, meals and entertainment, as business expenses on tax returns he admits that he helps to prepare. The husband further alleges that, based on his personal knowledge, the wife often charged personal expenses to her business credit card account(s) during the marriage. In support of his allegation, the husband annexed the wife's business credit card statements from January to December 2009 which he alleges show "numerous personal expenses, including chiropractic expenses, healthcare expenses, beauty/hairdressing expenses, theater expenses, travel expenses and home improvement expenses totaling approximately $10,861.50" all of which he contends are personal expenses that should be imputed back to her for purposes of determining her gross income.[FN3] The husband annexed the wife's 2010 individual tax return showing gross income in the sum of $148,692.00; however, the husband posits that the wife's gross income for 2010 "may be approximately $163,865.00". The husband alleges that despite "numerous demands" the wife has failed to disclose her 2011 and 2012 income tax returns or copies of her business credit card statements from 2011, 2012 and 2013 and that without them he cannot determine what her actual gross income, including any add-backs for personal expenses paid through the business, was in 2011 or 2012. The Court notes that there are no motions before the Court related to discovery at this time.

The husband seeks an order of the Courtappointing a neutral forensic expert to evaluate the wife's private psychology practice.

The Wife's Contentions

The wife claims that the husband's application for $6,000.00 in pendente lite maintenance in additionto the expenses he asks that the Court order her to pay would result in her paying combined support in the sum of $11,300.00 monthly (the presumptively correct pendente lite maintenance and all of the parties' daily living expenses) or $135,600.00 annually which would be nearly $10,000.00 more than her 2011 adjusted gross income of $126,127.00.[FN4] [*8]

Plaintiff's counsel contends that an award of the presumptively correct pendente lite maintenance would be unjust and inappropriate in this case where the wife is paying all of the parties' daily living expenses and that, furthermore, a deviation from the presumptive amount of pendente lite maintenance is appropriate based on the husband's wasteful dissipation during the parties' marriage. Furthermore, Plaintiff argues that income should be imputed to the husband. She affirms that the husband receives approximately $11,000.00 annually in cash gifts from his "wealthy family" during the marriage. She further avers that "defendant's mother told defendant, who in turn told [her]" that the husband will receive twenty (20%) percent of his mother's estate which is, the wife alleges, valued at twenty million ($20,000,000.00) dollars. She avers that the husband took a two (2) week vacation with his family to St. Martin at the end of 2012 which was funded entirely by his family. She posits that the husband does not "need" financial support from her because his mother is extremely wealthy.

The wife further argues that income should be imputed to the husband because he has the ability to elect early Social Security benefits which, she affirms, would yield approximately $12,000.00 annually. She argues that the combined financial assistance from his family and the monthly Social Security benefit the husband could elect to received together would obviate or at least offset the need for any pendente lite support from her. The husband concedes in his sworn Reply Affidavit that he is "currently eligible for approximately $1,053 per month in Social Security or $12,636 per year" but that he did not elect to take Social Security early during the marriage and he should not be required to do so now simply to offset the wife's obligation to provide pendente lite maintenance. He argues that opting to take Social Security benefits early would decrease his monthly benefits because he has not received the "full retirement age" as defined by the Social Security Administration.

Plaintiff's counsel alleges that the parties lived a "fairly modest" lifestyle during the marriage and that the "extraordinary facts" of the case, including "defendant's manipulation and secretive antics" during the marriage warrant the Court denying the husband any award of pendente lite maintenance.

The plaintiff avers in her affidavit that "any need by defendant for fees or continued litigation will be the direct result of defendant's own actions as this is a simple case to resolve and should be settled." She further argues that an award of counsel fees or litigation fees, including the cost of a court-ordered neutral forensic expert to evaluate her business, would amount to rewarding the husband for "insisting on litigation." She contends that she "simply cannot afford to pay defendant's fees as well [as her own] without depleting [her] limited assets and income..." and as such the Court should deny the husband's application for counsel fees and request that she be solely (100%) financially responsible for the cost associated with a neutral forensic expert to evaluate her medical practice.

Discussion

[*9]Pendente Lite Maintenance

In accordance with Domestic Relations Law section 236 [B] (5€"a) (e) (1), commonly referred to as the temporary or interim maintenance guideline statute, "[t]he court shall order the presumptive award of temporary maintenance in accordance with paragraphs (c) and (d) of this subdivision, unless the court finds that the presumptive award is unjust or inappropriate and adjusts the presumptive award of temporary maintenance accordingly based upon consideration of the following factors:

(a) the standard of living of the parties established during the marriage;

(b) the age and health of the parties;

(c) the earning capacity of the parties;

(d) the need of one party to incur education or training expenses;

(e) the wasteful dissipation of marital property;

(f) the transfer or encumbrance made in contemplation of a matrimonial action 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 that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the Social Services Law;

(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 pursuant to subdivision five of this part;

(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) the 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 other factor which the court shall expressly find to be just and proper.

According to the wife's individual 2011 tax return, she earned annual gross income in the sum of $151,832.00. The wife has not provided the Court with a copy of her 2012 tax returns at this time. The Court notes that the husband concedes in his sworn affidavit [*10]that he prepared the parties' joint tax returns during the marriage but beginning in 2007 stopped filing them without the wife's knowledge or consent. The husband also concedes that he intercepted and hid delinquent tax notices from the government so that the wife would not be aware that he did not file the parties' joint tax returns in 2007, 2008, 2009, 2010 or 2011. Nonetheless, the husband argues that the Court cannot rely on the gross income in the wife's individual 2011 tax return to calculate the presumptively correct pendente lite maintenance because, he alleges, she paid many personal expenses through her business.

The wife contends that the husband is entitled to receive the sum of $12,000.00 annually if he begins to collect Social Security benefits. The wife argues that the Court should impute to the husband the sum of Social Security income he would receive now if he elected to take early Social Security benefits. The husband avers that he did not elect to collect Social Security benefits during the marriage and that electing to collect his benefits early would reduce the amount of the monthly benefit he would receive if he waits until he reaches full retirement age, as defined by the Social Security Administration, when he can collect full benefits. The husband avers that if he elects to collect early Social Security benefits he will receive a reduced sum of $1,053.00 monthly ($12,636.00 annually). According to the wife's papers, the husband would receive the sum of $1,223.00 monthly if he waits two (2) years, when he will reach the full retirement age, and the sum of $1,615.00 monthly if he waits six (6) years to collect Social Security benefits.

Domestic Relations Law [DRL] section 236 [B] (5€"a) (b) (4) provides, as relevant here, that " [i]ncome' shall mean: (a) income as defined in the child support standards act and codified in section two hundred forty of this article..." DRL section 240 (1€"b) (b)(5)(iii) further defines "income" as follows [emphasis added]:

To the extent not already included in gross income in clauses (I) and (ii) of this subparagraph, the amount of income or compensation voluntarily deferred and income received, if any, from the following sources:

(A) workers' compensation,

(B) disability benefits,

(C) unemployment insurance benefits,

(D) social security benefits,

(E) veterans benefits,

(F) pension and retirement benefits,

(G) fellowship and stipends, and

(H) annuity payments;

The Social Security Administration defines a person's "full retirement age" as the "normal retirement age" based on the person's year of birth and provides that if a person elects to take "early" retirement benefits before reaching his or her "full retirement age" [*11]that the person will receive a reduced monthly payment.[FN5] Here, the husband was born in 1948 and is 64 years of age. According to the Social Security Administration, the full retirement age for a person born in 1948 is 66 years of age. As such, the husband has not reached the full retirement age and would be electing "early retirement" €" and would receive a monthly sum reduced twenty-five (25%) percent €" if he elects to collect retirement benefits now. Neither counsel for the wife nor counsel for the husband provided any legal basis or reference any controlling case law, nor is this Court aware of any Appellate Division legal precedent, which would allow the Court to impute income to the husband based on his electing not to take "early" retirement, as defined by the Social Security Administration, for the purpose of calculating pendente lite maintenance. Furthermore, the Appellate Division, Third Department has held that a recipient's Social Security benefits are properly considered in maintenance awards only when the recipient reached his or her "full" retirement age, as defined by the Social Security Administration, based on his or her year of birth (see generally Wheeler v. Wheeler, 12 AD3d 982, 785 N.Y.S.2d 170 [3 Dept.,2004]; see also Wojewodzic v. Wojewodzic, 300 AD2d 985, 753 N.Y.S.2d 160 [3 Dept.,2002]). As such, while it is clear that the statute provides for factoring in voluntary deferred social security benefits as income for the purpose of calculating pendente lite maintenance, the existing case law demonstrates that it becomes a consideration only after the party entitled to receive the benefit reaches his or her full retirement age so as to prevent the recipient from delaying application for benefits to the detriment of the payor (see Wojewodzic v. Wojewodzic, 300 AD2d 985, 753 N.Y.S.2d 160 [3 Dept.,2002]). Clearly, if the Court were to adopt the wife's theory herein and require the husband to take early Social Security benefits it would raise the specter of a potentially increased maintenance award at trial to compensate the husband for reduced income based on his election of early retirement benefits. The Court declines to do so at this time.

DRL § 240(1-b)(b)(5)(iv)(D) gives the Court discretion to impute income to a party on the basis of "money, goods, or services provided by relatives and friends" (Matter of Simmons v Simmons, 48 AD3d 691, 692, 853 NYS2d 102 [2d Dept 2008] [citations omitted]; Abellard v Aime, 18 AD3d 653, 653, 795 NYS2d 652 [2d Dept 2005] [the Court properly considered the assistance petitioner received from his father in calculating his child support obligation by imputing the loans that he received from his father as income]; Miller v Miller, 18 AD3d 629, 631, 796 NYS2d 97 [2d Dept 2005] [the Court should have considered the assistance the husband received from her mother when [*12]calculating her child support obligation]; Matter of Yaroshenko v Kats, 7 AD3d 806, 806, 776 NYS2d 877 [2d Dept 2004] [the Court properly imputed loans that the father received from his mother as income]; Mellen v Mellen, 260 AD2d 609, 610, 688 NYS2d 674 [2d Dept 1999] [it was proper for the Court to consider sums of money which the husband received from his parents as income for purposes of determining the amount of his support obligation]; Tesler v Tesler, 228 AD2d 491, 492, 644 NYS2d 316 [2d Dept 1996] [the Court properly attributed and imputed to the husband moneys received from his parents]). The husband concedes in his Affidavit that during the parties' marriage his mother gifted him the sum of $11,000.00 annually. He alleges that his mother stopped giving him cash gifts after the wife commenced this divorce proceeding. It is evident that the husband received substantial and consistent financial assistance from his family, including infusions of cash in the sum of $11,000.00 annually from his mother, during the parties' marriage. As such, the Court finds that it is appropriate to impute the sum of $11,000.00 to the husband for the purposes of determining the presumptively correct pendente lite maintenance award.

Based upon the husband's age (he is 64 years old) and absence from the workforce for more than eight (8) years now, albeit without the wife's knowledge or consent, the Court finds that an imputation of income to him pendente lite would not be appropriate at this time. The husband avers that his IT skills are outdated given the advances in technology and his years of absence from the workforce. The questions of the husband's ability to obtain employment given his years of absence from the workforce and whether his absence was voluntary or a result of a medical condition and what, if any, impact that may have on any final award of maintenance is a question for the trial court. The Court notes that the husband avers in his papers that "mental health issues have plagued [him] throughout [his] life" but does not deny that he was also gainfully employed from his twenties into his fifties when he married the plaintiff.

This Court has fully considered the temporary maintenance guidelines and statutory factors in Domestic Relation Law 236(B). It is uncontroverted, based on the husband's own sworn affidavit, that he purposefully misled the wife to believe that he remained gainfully employed throughout the parties' marriage until she discovered that he was unemployed and commenced this divorce proceeding. The husband clearly admits in his sworn affidavit that he actively hid his unemployment status from the wife and, as such, the Court does not find the husband's contention that the wife was complicit in his unemployment persuasive. The husband's purposeful and active concealment of his unemployment amounts to a fraud on the wife. Furthermore, the Court notes that the husband concedes in his sworn affidavit that his unemployment beginning in 2005 when he claims his business failed was due entirely to his own actions and he admits that he did not seek any other source of employment.

Based on the wife's annual gross income, as reported on her 2011 individual tax return ($151,832.00) and the husband's imputed income ($11,000.00) from cash gifts [*13]from his family, the presumptively correct sum of pendente lite maintenance award would be $3,612.47 monthly.[FN6]

This Court has fully considered the temporary maintenance guidelines and statutory factors in the Domestic Relations Law 236(B). The husband has been unemployed for many years and is not the monied spouse. As such, an award of pendente lite spousal support under the statute is appropriate. Here, the husband also seeks an order of the Court directing the wife to continue paying all of the expenses associated with the marital apartment, where the parties continue to reside together, and the parties' automobile, including: rent for the martial apartment, maintenance and repairs for the martial apartment, insurance costs, utilities for the marital apartment (including gas, electric, security, telephone, cable, and internet/DSL), and insurance and repairs for the parties' automobile.

The Court notes that in determining the presumptively correct sum of pendente lite maintenance under the amended statute, the Appellate Division, First Department has found that consideration of the payor's payment of certain "basic living expenses, including housing costs as well as the costs of food and clothing and other usual expenses" is appropriate (see Khaira v. Khaira, 93 AD3d 194, 200, 938 N.Y.S.2d 513 [1 Dept.,2012]. The First Department found in Khaira that calculating the guideline amount and then adding the direct payment for daily living expenses on top of the guideline amount would effectively result in an award above the formula sum. Furthermore, the Appellate Division, Second Department subsequently found that "there is no indication that the formulas set forth in Domestic Relations Law 236(B)(5-a) were intended to cover the temporary support needs of the nonmonied spouse...but not the carrying charges on a marital residence" (Woodford v. Woodford, 100 AD3d 875, 877, 955 N.Y.S.2d 355 [2 Dept.,2012]; see generally Goncalves v. Goncalves, 105 AD3d 901, 963 N.Y.S.2d 686 [2 Dept.,2013]). The Court in Woodford went on to find that "it 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" (id. at 877).

The wife avers in her sworn affidavit that she continues to pay all of the expenses associated with the marital apartment. The wife further avers that she is paying the sum of $1,500.00 monthly towards the parties' credit card debt which, she posits, the husband incurred for his expenses. The husband concedes that even after commencing this [*14]divorce proceeding the wife has continued to pay all (100%) of the rent and utilities associated with the marital residence, where he continues to reside, and the monthly cost associated with his medical insurance.

According to the husband's Affidavit of Net Worth, the total daily living expenses he requests that the Court order the wife to continue paying is: $5,876.00 monthly.[FN7] According to the wife's Affidavit of Net Worth, the total daily living expenses he requests that the Court order the wife to continue paying is: $6,679.00 monthly.[FN8] In his sworn Reply, dated April 26, 2013, the husband avers that he has "nearly $1,800.00 in monthly expenses excluding the expenses that the plaintiff presently pays for directly...."

This Court rejects the husband's contention that he is entitled to an award of the presumptively correct pendente lite maintenance under Domestic Relations Law 236(B)(5-a) in addition to an Order directing the wife to continue to pay his daily living expenses, including housing costs and medical insurance. For this Court to do so would be inconsistent with the controlling Appellate Division, Second Department case law and would effectively result in a pendente lite award in excess of the amount presumed correct under the formula (see Woodford v. Woodford, 100 AD3d 875, 955 N.Y.S.2d 355 [2 Dept.,2012]; see generally Goncalves v. Goncalves, 105 AD3d 901, 963 N.Y.S.2d 686 [2 Dept.,2013]). The sums paid by the wife for rent and utilities related to the marital residence, where both parties reside, and the sums paid by the wife for the parties' daily living expenses, including health insurance premiums and personal expenses such as cellular telephone expenses for the parties should be deducted from the presumptively correct pendente lite award in compliance with the controlling Appellate Division, Second Department case law (see Woodford v. Woodford, 100 AD3d 875, 955 N.Y.S.2d 355 [2 Dept.,2012]; see generally Goncalves v. Goncalves, 105 AD3d 901, 963 N.Y.S.2d 686 [2 Dept.,2013]).

The husband's application for an order directing the wife to continue to pay all of the routine and customary expenses associated with the marital apartment, health insurance, and the parties' automobile, including: rent for the martial apartment, [*15]maintenance and repairs for the martial apartment, insurance premiums, utilities for the marital apartment (including gas, electric, security, telephone, cable, and internet/DSL), and automobile insurance and repairs for the parties' automobile is granted. The husband states in his sworn Affidavit that the monthly cost for these daily living expenses paid by the wife is $5,876.00. Consistent with the controlling Appellate Division, Second Department case law, the Court finds that fifty (50%) percent of that $5,876.00 ($2,938.00) shall be considered as pendente lite maintenance benefitting the husband and, as such, deductible from the wife's pendente lite maintenance obligation under the controlling Appellate Division, Second Department case law.[FN9]

Based on the wife's annual gross income, as reported on her 2011 individual tax return ($151,832.00) and the husband's annual imputed income ($11,000.00), the presumptively correct sum of pendente lite maintenance awarded would be $3,612.47 monthly. After deducting the sum of $2,938.00 monthly (50% of the monthly living expenses paid by the wife as admitted by the husband), the wife's remaining pendente lite maintenance obligation for the presumptively correct sum under the statute would be: $674.47 monthly.

The wife argues that as a direct result of the husband's deceit, the parties owe tax bills for past-due taxes and penalties "in excess of $100,000.00"; however, the wife does not attach any documentation from any taxing authority in support of her claim.[FN10] The husband denies knowledge of the total amount of the parties' tax liability; however, he does not deny that the parties' tax liability is a direct result of his failure to file the parties' joint tax returns and his actions in obscuring the growing tax debt from the wife during the final years of the parties' marriage. The wife avers in her sworn affidavit that she entered into an installment payment plan with state and federal taxing authorities to pay [*16]down the parties' tax liabilities for the years 2004 through 2012 at the rate of $2,500.00 monthly, in addition to paying her current estimated taxes; however, the wife only provided a one-page spreadsheet and a one-page typed document in support of her statement. The Court notes that the issue of the parties' respective financial responsibility for any marital debt, including any outstanding tax liabilities and any issues of wasteful dissipation of marital assets due to a party's failure to file tax returns and/or ignoring notices of delinquent tax bills is an issue for the trial court. A final determination of whether or not a party engaged in wasteful dissipation of marital assets and any impact a finding of wasteful dissipation may have on equitable distribution, including the parties' respective financial responsibility for any marital tax liability, is an issue for the trial court when discovery is complete and sworn testimony is placed on the record.

The husband's contention that it is premature for the Court to consider wasteful dissipation in determining a pendente lite award is unavailing as the statute specifically provides that wasteful dissipation is a factor before the Court when considering whether a deviation from the presumptive award of pendente lite maintenance is appropriate (see DRL 236 [B] (5€"a) (e) (1) (e)). The Court notes that, here, the husband admits that he hid his unemployment from the wife for seven (7) years and that his financial decisions during the marriage caused the parties financial detriment.

The husband's position that the wife condoned or was somehow complicit in his unemployment during the marriage and any resulting financial hardship is incompatible with his sworn affidavit stating that he actively misled the wife to believe that he was gainfully employed for more than seven (7) years between 2005 and 2012 when he was not working. It is uncontroverted that the husband hid his unemployment from the wife and led her to believe that he was earning income during those seven (7) years when he was not. Certainly the husband's actions constitute a wasteful dissipation as contemplated by the statute as it presently exists and, as such, it is proper for this Court to consider it when awarding any pendente lite maintenance to the husband. The husband's sworn papers are replete with statements that he hid his unemployment from the wife. As such, the wife clearly could not have condoned his unemployment between 2005 and 2012. The fact that the marital "understanding" may have been that his income was secondary to hers is inconsequential to whether his purposeful deceit regarding his employment status amounted to wasteful dissipation. The Court finds that this is an appropriate situation for the Court, under the authority in the Domestic Relation Law section 236 [B] (5€"a) (g), to deviate from awarding a presumptively correct sum of pendente lite maintenance as calculated under the guidelines.

The Court finds that, under the facts and circumstances presented here, a deviation from the presumptively correct pendente lite maintenance is appropriate based on the husband's admitted years of purposeful fraudulent misrepresentation to the wife that he was gainfully employed and the fact that the wife is paying all of the monthly expenses related to the marital residence where the husband continues to reside (see DRL 236 [B] [*17](5€"a) (e) (1). The Court will not ignore the husband's admission; to do so would be tantamount to endorsing the husband's purposeful fraudulent actions over more than seven (7) years during the parties' marriage.

As previously stated, the presumptively correct pendente lite maintenance [$3,612.47], reduced by the husband's fifty (50%) percent share of the daily living expenses paid by the wife [$2,938.00] would be $674.47 monthly; however, based on the undisputed facts and sworn testimony here, the Court finds that a downward deviation from the presumptively correct pendente lite maintenance is appropriate based on the husband's wasteful dissipation during the marriage in that he purposefully concealed his unemployment from the wife for more than seven (7) years and misled her regarding his filing of the parties' joint tax returns before she discovered his fraudulent actions and filed for divorce.

The Court has fully considered the factors in DRL 236(B)(5-a) and finds that, based on the facts and circumstances presented herein, an award of pendente lite spousal support to the husband in the sum of $400.00 monthly is appropriate at this time based on the fact that the wife is paying all of the daily living expenses associated with the marital apartment where the parties reside and the husband's admission that he purposefully misled the wife into believing that he was gainfully employed for the last seven (7) years of the parties' marriage when he was unemployed and not earning any income.Commencing on the 15th day of September, 2013, and continuing on the 15th day of each month thereafter, the wife shall pay the sum of $400.00 monthly to the husband as and for pendente lite spousal support.

Medical Insurance

The husband seeks an order of this Court directing the wife to maintain his existing medical insurance coverage and that she be solely (100%) financially responsible for all of his unreimbursed medical expenses. 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. As such, the wife 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, the husband's application seeking an Order directing the wife to maintain medical coverage is granted.

The husband's application that the wife be solely (100%) financially responsible for his unreimbursed medical, hospital, dental, optical and pharmaceutical expenses and medical co-pays and deductibles, pendente lite, including all individual psychological counseling is granted to the extent that the wife shall continue to be financially responsible as she was previously for plan-participating medical treatment. The husband's unreimbursed medical, dental, orthodontic, pharmaceutical, and therapy expenses for in-plan provider shall be paid by the parties pro rata, based on the parties' [*18]gross annually income as follows: the husband, 7%; the wife, 93%.[FN11]The husband shall be solely (100%) financially responsible for unreimbursed medical expenses incurred for using out-of-plan providers.

Retroactivity

The Court notes that an award of maintenance and child support is effective as of the date of application (see Domestic Relations Law § 236 [B][6][a]; see also Elimelech v. Elimelech, 58 AD3d 672, 874 N.Y.S.2d 490 [2 Dept., 2009]; Evans v. Evans, 57 AD3d 718, 870 N.Y.S.2d 394 [2 Dept., 2008]. "Courts have continuing jurisdiction to modify or vacate support orders until they are completely satisfied, except that they have no discretion to reduce or cancel arrears of child support which accrue before an application for downward modification of the child support obligation" (Dembitzer v. Rindenow, 35 AD3d 791, 828 N.Y.S.2d 139 [2 Dept., 2006] [quoting Hasegawa v. Hasagawa, 290 AD2d 488, 490, 736 N.Y.S.2d 398 [2 Dept., 2002]; see Matter of Dox v. Tynon, 90 NY2d 166, 659 N.Y.S.2d 231, 681 N.E.2d 398 [1997]; Matter of Jenkins v. McKinney, 21 AD3d 558, 799 N.Y.S.2d 904 [2 Dept., 2005]; Matter of Miller v. Miller, 308 AD2d 541, 764 N.Y.S.2d 850 [2 Dept., 2003]; Howfield v. Howfield, 250 AD2d 573, 574, 671 N.Y.S.2d 988 [2 Dept., 1998]; Domestic Relations Law section 236[B][9][b]).

The wife's pendente lite maintenance obligation is $400.00 monthly ($4,800.00 annually.) The retroactive award is calculated from the date of the husband's first application, April 8, 2013, and totals $2,000.00 ($400.00/month x 5 months [April 2013 through August 2013]). Retroactive sums due by reason of this award shall be paid, together with the monthly spousal support obligation, at the rate of $200.00 monthly until paid in full, with a credit for any temporary maintenance already made by check or other negotiable instrument, since April 8, 2013, the date of first application (see Domestic Relations Law § 236 [B][6][a]).(see Mosso v. Mosso, 84 AD3d 757, 924 N.Y.S.2d 394 [2 Dept.,2011]).The husband did not annex any documentation regarding unreimbursed, in-network medical expenses.

The Parties' Automobile

The husband requests an Order of this Court "directing the plaintiff to continue to provide to defendant reasonable use of and access to the parties' automobile at reasonable times." The wife's papers in opposition do not address the husband's request for continued use and access to the parties' automobile. The husband does not provide the Court with a proposed use schedule for the parties' automobile. It is evident from the husband's papers that he does not utilize the automobile for work-related purposes as he claims to be currently unemployed and unemployable. The husband's application for use of the parties' automobile is denied at this time with right to renew upon proper papers [*19]including sworn Affidavits regarding the parties' past access.

Counsel Fees

An award of interim counsel fees is within the discretion of the Court (DeCabrera v. Cabrera-Rosete, 70 NY2d 879 [1987]). Pursuant to Domestic Relations Law section 237(a), which was amended as of October 2010, the Court in an action for divorce:

. . . may direct the person or persons maintaining the action, to pay counsel fees and fees and expenses of experts directly to the attorney of the other spouse to enable the other party to carry on or defend the action or proceeding as, in the court's discretion, justice requires, having regard to the circumstances of the case and of the respective parties. There shall be rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to enable adequate representation from the commencement of the proceeding.

The sponsor of the bill in the Senate noted:

Justification: This bill would amend sections 237 and 238 of the Domestic Relations Law to require the court in a matrimonial case, or a proceeding to enforce a judgment therein, involving parties with greatly unequal financial resources, to order the monied party to pay counsel fees for the non-monied party during the course of the case so as to enable her or him to carry on or defend it.

Current law places an onus upon the party in a matrimonial action seeking counsel fees pendente lite, to show why the interests of justice require it. In addition, Judges appear reluctant to order pendente lite counsel fee awards in matrimonial actions under the current statute. A judicial order for pendente lite counsel awards in a matrimonial proceeding is a vital step in preventing an imbalance in the parties' resources from affecting the proceeding's outcome. Given the importance of pendente lite counsel fees, and the frequency of financial imbalance between parties to matrimonial proceedings, it is inappropriate to place the burden upon a non-monied spouse to justify it. Therefore, it is important for the Legislature to revise the statute, as proposed, to create a rebuttable presumption that such relief is necessary.

This bill proposal presumes that in a matrimonial case an order for pendente lite counsel fees is required, and it is left to the affected parties to show why, in the interests of justice, the order should not be made. This will better address today's economic and social realities, and will help ensure that no party to a matrimonial case is strategically at a disadvantage for want of resources to pursue or defend the case.

It has long been established that "[a]n award of an attorney's fee pursuant to [*20]Domestic Relations Law § 237(a) is a matter within the sound discretion of the trial court, and the issue is controlled by the equities and circumstances of each particular case" (Grant v Grant, 71 AD3d 634, 634-635, 895 NYS2d 827 [2d Dept 2010], quoting Gruppuso v Caridi, 66 AD3d 838, 839, 886 NYS2d 613 [2d Dept 2009], quoting Morrissey v Morrissey, 259 AD2d 472, 473, 686 NYS2d 71 [2d Dept 1999]). "In determining whether to award such a fee, the court should review the financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions'" (Gruppuso, 66 AD3d at 839, quoting DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881, 524 NYS2d 176 [1987]). " An appropriate award of attorney's fees should take into account the parties' ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances'" (DiBlasi v DiBlasi, 48 AD3d 403, 405, 852 NYS2d 195 [2d Dept 2008], lv denied 10 NY3d 716, 862 NYS2d 468 [2008], quoting Grumet v Grumet, 37 AD3d 534, 536, 829 NYS2d 682 [2d Dept 2007] [citations omitted]).

It is also well-settled that "[a]n award of interim counsel fees is designed to create parity in divorce litigation by preventing a monied spouse from wearing down a nonmonied spouse on the basis of sheer financial strength" (Rosenbaum v Rosenbaum, 55 AD3d 713, 714, 866 NYS2d 234 [2d Dept 2008], citing O'Shea v O'Shea, 93 NY2d 187, 193, 689 NYS2d 8 [1999]; Wald v Wald, 44 AD3d 848, 844 NYS2d 86 [2d Dept 2007]). "Such awards are designed to redress the economic disparity between the monied spouse and the non-monied spouse' and ensure that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet'" (Kaplan v Kaplan, 28 AD3d 523, 523, 812 NYS2d 360 [2d Dept 2006], quoting Frankel v Frankel, 2 NY3d 601, 607, 781 NYS2d 59 [2004], quoting O'Shea, 93 NY2d at 190).

Interim counsel fees are awarded to level the playing field and " prevent the more affluent spouse from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the litigation'" (Gober v Gober, 282 AD2d 392, 393 [1 Dept., 2001], quoting O'Shea v O'Shea, 93 NY2d 187,193 [1999]; see also Prichep v Prichep, 52 AD3d 61, 65 [2 Dept., 2008]). Thus, interim fees are generally warranted "where there is a significant disparity in the financial circumstances of the parties" (Prichep, 52 AD3d at 65; see also DelDuca v DelDuca, 304 AD2d 610, 611 [2 Dept., 2003]; Celauro v Celauro, 257 AD2d 588, 589 [2 Dept., 1999]). "[U]nlike a final award of counsel fees, a detailed inquiry or evidentiary hearing is not required prior to the award of interim counsel fees" (Isaacs v Isaacs, 71 AD3d 951, 951 [2 Dept., 2010]; see also Prichep, 52 AD3d at 65; Singer v Singer, 16 AD3d 666, 667 [2 Dept., 2005]; Flach v Flach, 114 AD2d 929, 929 [2 Dept., 1985]). Additionally, it should be noted that the court in Prichep specifically provided that "[w]hen a party to a divorce action requests an interim award of counsel fees, as opposed to a final award, no such detailed inquiry is warranted" (52 AD3d 61, 65, 858 N.Y.S.2d 667 [2 Dept.,2008]. [*21]

The wife posits that it is "outrageous" for the husband to seek counsel fees because, she alleges, the husband has "limitless funds from his extraordinarily [sic] family wealth." She alleges the husband's family has already paid the husband's attorney $27,500.00 already and paid for a forensic psychologist. The wife argues that the husband has access to unlimited financial resources because, she alleges, his family is very wealthy. As evidence that the husband has access to financial resources from his family the wife alleges that the husband's mother told the husband who then told her that when the husband's mother dies he will inherit an estate worth millions of dollars. The wife's assertion is clearly hearsay and, moreover, even if substantiated and accurate, it relates to a possible future event that may not occur at all or, if it does, may not occur for many years.

The husband posits that the wife is trying to avoid paying counsel fees by making his mother financially responsible for him. The husband admits in his Reply Affidavit that his mother did provide him with monetary gifts during the marriage within the allowable gift limit of approximately $11,000.00 annually but avers that his mother did not provide him with any monetary gifts "this year" and "will no longer" provide him with monetary gifts. He further alleges that his mother should not be responsible for financially supporting him and that any inheritance he may receive from the mother in the future "may never come" as his mother is in "excellent health" and "there are no guarantees that she will distribute her assets in the way she may have allegedly told the [wife] she would" in the past.

The Court is aware that there are questions surrounding the husband's employability and whether he engaged in wasteful dissipation that may impact a final award of equitable distribution; however, at this time, the wife is the monied spouse, not the husband. Neither party disputes that throughout the marriage the wife was the primary financial provider and, as such, there is a rebuttable presumption under amended DRL 237 that he should be awarded counsel fees to be paid by the wife. Consequently, an award of interim counsel fees to the husband is warranted (see Domestic Relations Law § 237 [a]; Khaira v Khaira, 93 AD3d 194, 201 [1 Dept., 2012]; Palmeri v Palmeri, 87 AD3d 572, 572 [2 Dept., 2011]).

The husband's attorneys, submitted an affirmation in support of an award of counsel fees. Husband's attorney notes that the husband signed a retainer agreement on March 1, 2013, and that husband paid an initial retainer fee of $7,500.00. The retainer agreement provides that the husband will be billed at a rate of between $150.00 and $600.00 for legal services rendered in connection with this matrimonial action depending on whether a paralegal, associate or partner works on the file. Husband's attorney seeks an award of pendente lite counsel fees in the sum of $25,000.00 and annexed one bill in support of the request, which as of April 8, 2013 reflected counsel fees due and owing in the sum of $15,675.00 after expending the total retainer of $7,500.00. Husband's attorney's hourly rate appears reasonable based upon his experience. According to the [*22]husband's Affidavit of Net Worth, dated March 1, 2013, he borrowed the sum of $27,500.00 from his mother for attorney's fees; however, the husband did not attach any documentation regarding the terms of the alleged loan from his mother.

The wife avers that she has paid her attorneys the sum of $18,783.00 in counsel fees as of April 23, 2013. She does not specify whether there is any sum of counsel fees that remains due and owing to her attorneys for legal services rendered in connection with this matrimonial action.

The Court finds that under the facts and circumstances presented here, including the complexity of the issues raised, an award of pendente lite counsel fees in the sum of $17,500.00 is just and appropriate. This award of $17,500.00 to the husband for pendente lite attorney's fees is without prejudice to future applications for additional counsel fees, as necessary at the time of trial or sooner, upon the requisite showing (see DRL § 237; Prichep v. Prichep, 52 AD3d 61, 858 N.Y.S.2d 667 [2nd Dept.2008]; Kesten v. Kesten, 234 AD2d 427, 650 N.Y.S.2d 807 [2nd Dept.1996]; Dodson, 46 AD3d at 305; Jorgensen v Jorgensen, 86 AD2d 861, 861 [2 Dept.,1982]). On reaching this decision, the Court considered the parties income and assets and liabilities, as sworn to in their respective Affidavits of Net Worth. The Court also considered the nature and complexity of this case and has reviewed the retainer statement, the fees billed and legal services rendered and the expertise of the husband's attorney. This sum is appropriate pendente lite based upon the complexity of the issues raised by the parties and the need for the parties to engage in extensive discovery. The Court believes that, pursuant to the dictates of Prichep (supra.), to require a more detailed inquiry would defeat the purpose of a pendente lite counsel fee award and serve as an obstacle to the non-monied spouse obtaining and maintaining competent counsel.

An initial payment in the sum of $10,000.00 shall be made directly from the wife to the husband's counsel within thirty (30) days of service of notice of entry of this decision and order. The wife shall make the remaining payment of $7,500.00 within ninety (90) days of service of notice of entry of this decision and order. If the wife fails to make the initial payment in compliance with this decision and order the husband's attorney may enter a judgement for the full amount due and owing, plus statutory interest, with the Clerk of the Court upon ten (10) days written notice by certified and regular mail to the husband and without further application to this Court.

Expert Fees

This Court is authorized to award expert fees in matrimonial actions pursuant to Domestic Relations Law § 237 (see Domestic Relations Law § 237 [a]; O'Brien v O'Brien, 66 NY2d 576, 590 [1985]; McGarrity, 49 AD3d at 825-826; Bluemer v Bluemer, 47 AD3d 652, 653 [2 Dept., 2008]; Zirinsky v Zirinsky, 138 AD2d 43, 45-46 [1 Dept., 1988]; Pacheco v Pacheco, 107 AD2d 741, 741 [2 Dept., 1985]). The husband's application for a Court ordered neutral forensic evaluator is moot. On April 20, 2013, the [*23]Court so-ordered an agreement by the parties for the appointment of Klein Liebman Gresen as a neutral court ordered business evaluator for the wife's psychology practice. Pursuant to the appointment order, the parties agreed to pay for the cost associated with the neutral business appraisal as follows: eighty (80%) percent by plaintiff and twenty (20%) percent by defendant.

Conclusion

The husband's motion, dated April 8, 2013, is granted to the extent stated herein above. The husband is granted pendente lite maintenance in the sum of $400.00 monthly to commence on September 15, 2013 and to continue payable on the 15th of each month thereafter. The wife shall pay to the husband an additional sum of $200.00 on the 15th of each month as and for pendente lite maintenance arrears until the arrears are paid in full. The husband is awarded pendente lite counsel fees in the sum of $17,500.00 without prejudice to future applications for additional counsel fees, as necessary at the time of trial or sooner, upon the requisite showing.

This shall constitutes the decision and order of the court.

E N T E R:

JEFFREY S. SUNSHINE

J. S. C. Footnotes

Footnote 1:The husband avers that he has not earned income anywhere near $50,000.00 since 2001.

Footnote 2:The husband's affidavit of net worth did not provide a tally of the expenses to the Court. The tally was calculated by the Court based on the monthly sums provided for each individual expense.

Footnote 3:The husband avers that the wife testified at her deposition that she "continues to incur these [personal] expenses presently"; however, the husband acknowledges in his affidavit dated April 8, 2013 that he does not have minutes from the deposition. This Court will not rely on the husband's representations regarding what the wife may or may not have stated at an alleged deposition. Without transcripts from the deposition annexed, the representations regarding the wife's statements are merely hearsay.

Footnote 4:The wife annexes her individual 2011 tax returns but only a copy of her e-file signature authorizations for her 2012 tax returns stating that she was unable to get a duplicate copy from her accountant prior to filing her affidavit dated April 23, 2012. The Court notes that there is no indication that the wife subsequently produced copies of her 2012 individual tax returns. The wife alleges that if she had to pay $11,300.00 monthly it would be nearly $40,000.00 more than her 2012 adjusted gross income which she avers was $96,163.00 in 2012.

Footnote 5:The percentage the person's monthly benefit payment is reduced if he or she takes "early" retirement benefits also depends on the year he or she was born. For a person born in 1948, the sum he or she would receive once reaching "full" retirement age is reduced twenty-five (25%) percent if he or she elects to take the benefit "early" (see "Retirement Planner: Benefits By Year of Birth" www.socialsecurity.gov/retire2/agereduction.htm [last visited August 2, 2013]).

Footnote 6:The wife avers in her Affidavit dated April 23, 2012 that her annual gross income, as reported on her 2012 individual tax return was $96,163; however, the wife did not annex a copy of her 2012 individual tax return. The wife avers that she was unable to get a duplicate copy from her accountant prior to filing her Affidavit. The Court notes that there is no indication that the wife subsequently produced copies of her 2012 individual tax returns despite the parties appearing for a compliance conference before the Court on August 15, 2013. As such, the wife's 2011 individual tax return is the only full tax return before the Court.

Footnote 7:As detailed in the husband's Affidavit of Net Worth, dated March 1, 2013: rent, $3,100.00; maintenance and repairs, $0.00; insurance, $1,910.00; gas, $16.00; electric, $150.00; security, $0.00; telephone, $75.00; cable, $0.00; internet/DSL, $0.00; automotive insurance $350.00; automotive gas and oil, $150.00; automotive repairs, $100.00; and parking, $25.00.

Footnote 8:As detailed in the wife's Affidavit of Net Worth, dated June 8, 2012: rent, $2,885.00; maintenance and repairs, $100.00; insurance, $1,981.00; gas, $17.00; electric, $150.00; security, $; telephone, $665.00; cable, $198.00; internet/DSL, $75.00; automotive insurance $318.00; automotive gas and oil, $150.00; automotive repairs, $100.00; and parking, $40.00.

Footnote 9:The Court notes that this sum is based on the husband's sworn affidavit of net worth regarding expenses.

Footnote 10:The wife argues that the husband should be solely (100%) financially responsible for the outstanding tax liability based on his "wrongdoing". The Court notes that the question of what portion of the tax liability may be marital debt for taxes that were not paid during the marriage versus what portion may be related to penalties related to failure to file tax returns and pay corresponding tax liability. In as much as there has been a failure of proof on the tax issue, the Court at this juncture declines to consider that as a wasteful dissipation and reserves the questions of whether either party may have engaged in wasteful dissipation of marital assets based on the failure to file taxes and any tax penalties that resulted for trial. Furthermore, the Court notes that under the amended pendente lite maintenance statute, which went into effect in October 2010, the Court may modify a pendente lite maintenance award nunc pro tunc as of the date of application based on newly discovered evidence (see DRL 236 [B] (9) (b) (1)).

Footnote 11:The husband's annually imputed income, from cash gifts received from his family, being $11,000.00 and the wife's annual gross income, based on her 2011 tax returns, being $151, 832.00.