Katz v Katz

[*1] Katz v Katz 2013 NY Slip Op 51833(U) Decided on November 7, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 7, 2013
Supreme Court, Kings County

Miriam Katz, Plaintiff,

against

Abraham Katz, Defendant.



54288/2012



Harvey S. Jacobs, Esq.

Attorney for Plaintiff

26 Court Street, Suite 700

Brooklyn, New York 11242

Allyn & Fortuna LLP

Brad Nacht, Esq.

Attorneys for Defendant

1010 Avenue of Americas,

3rd Floor

New York, New York 10018 Attorney for Child

26 Court Street No.1805

Brooklyn, New York 11242

Jeffrey S. Sunshine, J.

The plaintiff-wife commenced this action for divorce on November 13, 2012. The

parties were married on February 8, 2000 in an orthodox Jewish ceremony. There is one

child of the marriage born in May 2005.

The wife filed an Emergency Order to Show Cause, dated December 5, 2012, seeking to travel with the parties' child to Israel. The Court appointed an attorney for the child, on consent, on December 10, 2012. This Court issued a written decision on that application on January 11, 2013 (see Katz v. Katz, 38 Misc 3d 1210(A), 966 N.Y.S.2d 346, [January 13, 2013]).[FN1]

On March 4, 2013, the parties appeared before this Court for a preliminary conference. Based on conflicting allegations by the parties on the record during the March 4, 2013 court appearance that there may or may not be a written Separation Agreement dated May 17, 2010 entered into by the parties, the Court set the matter down for a court appearance on April 9, 2013 at 2:15 p.m. and issued a written order directing that the plaintiff make any motions for support and/or maintenance and that the defendant make any motions regarding the existence of a written agreement or other relief and serve them by March 26, 2013 with answering papers due by April 5, 2013 and Reply papers due by April 8, 2013.

The wife filed a Notice of Motion, dated March 25, 2013, noticed for April 9, 2013, seeking an order of this Court directing the defendant-husband to: 1) pay the [*2]plaintiff child support and add-ons, including school tuition; 2) pay plaintiff temporary maintenance; 3) contribute toward plaintiff's counsel fees; and 4) for such other and further relief as to this Court deemed just and proper. Defendant filed Opposition, dated April 5, 2013, and plaintiff filed a Reply, dated April 8, 2013.

The husband filed a Notice of Motion, dated March 25, 2013, noticed for April 9, 2013, seeking an order of this Court directing the plaintiff-wife: 1) to comply with terms of the May 17, 2010 Separation Agreement pertaining to joint custody and parenting time; 2) in the alternative, setting a pendente lite parenting schedule for the parties; and 3) granting such other and further relief as the Court deems just and proper. Plaintiff filed Opposition, dated March 27, 2013, and defendant filed a Reply, dated April 8, 2013.

In her motion, dated March 25, 2013, the wife alleges that the parties have lived separate and apart since March 2008 and that the parties' child resides with her subject to parenting time with the father as arranged through the intervention of community rabbis. The wife acknowledges that the husband previously granted her a get (a Jewish divorce). The wife seeks an award of maintenance, child support and counsel fees. In support of her application, she annexes an affirmed Statement of Net Worth listing her 2012 gross income as $15,800.00 and her adjusted income, after deducting FICA/Medicare and NYC taxes, as $14,748.00. According to her affirmation, dated March 20, 2013, the husband's 2012 gross income was $47,248.00 and his adjusted income, after deducting FICA/Medicare and NYC taxes, was $43,433.00.[FN2] The wife alleges that the husband's living expenses are nominal as he resides, rent-free, with his parents. The wife claims that the parties' combined income for the purposes of calculating temporary maintenance and child support is $61,996.00 and that the parties' pro rata shares are: the husband, 76%, and the wife, 24%. The wife annexes a copy of a temporary maintenance and child support worksheet which purports to show that she should be awarded the sum of $710.00 monthly for pendente lite maintenance and $494.00 monthly for pendente lite child support. The wife also requests that the husband pay his pro rata share of add-ons, which she alleges includes 76% of the parties' child's private school tuition and expenses; 76% of the child's unreimbursed medical expenses upon submission of bills; and 76% of the child care expenses.

The wife's counsel contends that the husband is the monied-spouse earning more than twice the wife's salary and that since he has few monthly expenses he is capable of paying pendente lite maintenance in compliance with the temporary guidelines and pendente lite child support in compliance with the Child Support Standards Act. [*3]

The wife affirms that she paid her attorneys a retainer of $5,000.00 and that the retainer was expended to litigate her prior Emergency Order to Show Cause seeking to travel to Israel with the parties' child (see Katz v. Katz, 38 Misc 3d 1210(A), 966 N.Y.S.2d 346, [January 13, 2013]). The wife requests an award of interim counsel fees in the sum of $15,000.00 without prejudice to future applications as necessary. Counsel annexed an itemized bill for legal services rendered and expenses showing an outstanding balance in the sum of $10,400.00 as of March 26, 2013.

In his motion, dated March 25, 2013, the husband affirms that the parties have lived separate and apart since 2008. He alleges that the parties signed a written Separation Agreement on May 17, 2010 memorializing "certain understandings" after they engaged in nearly a year of extensive negotiations and mediation. The husband affirms that each of the parties had two (2) witnesses sign the parties' agreement. The husband annexed an Affirmation of Subscribing Witness from each of the four (4) purported witnesses as exhibits to his motion. The Court notes that each of the Affirmations of Subscribing Witnesses are dated on various dates in March 2013 while the written "agreement" is dated May 17, 2010. The husband alleges that the written agreement provides for: 1) joint legal custody by the parties with choice of Yeshiva and education decisions by father; 2) joint decision making on all health issues and other matters; and 3) a specific parenting time schedule for the father. The husband contends that the parties lived in accordance with the terms of the written agreement for more than two and a half (2.5) years without incident until he opposed the wife traveling with the child to Israel in December 2012.

The husband alleges that the wife routinely began denying him access to the child after the Court issued a written decision, dated January 11, 2013, denying her application to travel with the parties' child to Israel. The husband alleges that the wife traveled to Israel and left the parties' child in the care of "a friend of hers whom [the child] hardly knew" and that the wife only allowed the child to stay with the husband during her trip after he sought Court intervention.

The husband opposes the wife's application for pendente lite maintenance and child support in his affirmation, dated April 5, 2013, claiming that it is a "deviation of the binding and enforceable separation agreement dated May 17, 2010". In his affirmation, dated April 5, 2013, the husband affirms that the parties "negotiated and reached a final agreement on how [their] assets would be divided" and that the wife "never requested maintenance, nor was a maintenance provision included in the Agreement...." The husband contends that there is no legal basis for the wife to receive pendente lite maintenance because she worked during the marriage and continues to work "full-time" as a book-keeper and, therefore, is "fully capable of supporting herself" without contribution from him. He alleges that the wife "has had no problem supporting herself for the last five years through earnings from her employment" without contribution from him. [*4]

The husband alleges that the wife earns approximately $800.00 weekly in undeclared cash income from a second book-keeping job, in addition to the income she declares on her tax returns, and that she failed to include her cash income in her calculations for the presumptively correct pendente lite maintenance and child support. He alleges that the wife's "actual income is at least $40,600.00 annually, not the $15,800.00 annually reported and reflected in her Statement of Net Worth."

The husband affirms that he agreed to pay $50.00 weekly in child support; private school tuition at $175.00 monthly; additional school expenses of $650.00 annually and $900.00 annually for holiday expenses in the written agreement dated May 17, 2010. As such, he alleges that under the "Agreement" he is already paying "child support" as agreed to by the parties in the sum of $6,250.00 annually. He contends that the child support he currently pays is in excess of what he would be required to pay under the Child Support Standards Act based on his "current income". The husband posits that the Court should calculate any support obligations on his current projected 2013 income, not his 2012 income, because his employment hours are less than they were in 2012. He alleges that based on his projected 2013 income and the sum he posits the Court should impute to the wife that his child support obligation would be approximately $2,847.00 annually. The husband alleges that he is a home attendant and that his employment hours are less now because the "needs of the patient" he is assigned to care for "have changed over the course of the last year...." He contends that his employment hours decreased from seven (7) days a week to three (3) days a week through no fault of his own. He affirms that his "reduction in hours was not voluntary and [he] would work additional days/hours for [his employer] if [her] were permitted to do so." He further affirms that he has been "diligent in searching for additional employment" since his employment hours were reduced but despite being "willing to accept a variety of positions" he has "not received any offers of employment."

The husband contends that the wife has "failed to demonstrate any basis for imputing" his 2012 income to him when it is "clear" that he is earning less income in 2013 and that his reduction in income was involuntary and that he is making a good faith search for additional employment. The husband posits that if the Court were to find that a calculation of pendente lite maintenance and child support are appropriate then the Court should utilize his current income, not his income as reflected on his 2012 tax return; however, the husband does not provide the Court with an exact calculation of what he alleges his projected 2013 income will be merely stating that it is less than what he earned in 2012.

The husband's counsel contends that the parties' written agreement fully addressed and resolved custody and parenting time and all of the financial issues between the parties, including equitable distribution and child support. Husband's counsel affirms that the wife "waived any claim to maintenance" because maintenance is not addressed in the [*5]written agreement.[FN3] He further contends that the wife has waived any claim to pendente lite maintenance because the parties have lived separate and apart for more than five (5) years during which time the wife made no claim to maintenance from the husband. Furthermore, husband's counsel contends that the wife is the monied-spouse because, he posits, the husband's "monthly income is approximately the same as plaintiff's" and thus he is not the "monied spouse" for purposes of determining pendente lite maintenance under DRL 236 as modified in October 2010. The husband's counsel posits that the "parties have essentially equal incomes and in light of [defendant's] obligations with regard to child support and tuition, an award of attorneys fees is not warranted." Furthermore, the husband's counsel argues that the Court must deny the wife's request for maintenance because her motion "in no way addresses the twenty factors which the statute requires [the] Court to consider in deciding whether or not to make an award of maintenance...."

The wife's counsel contends that the writing signed by the parties in May 2010 "is not acknowledged in the form required to file a deed" and is, therefore, unenforceable under DRL 236B(3) and the Court of Appeals decision in Matisoff v. Dobi (90 NY2d 127, 659 N.Y.S.2d 209 [1997]). Counsel further argues that the alleged child support provision in the May 17, 2010 writing does not conform to the requirements of DRL 240(1-b)(h) because it does not state the income of each parent; that the parties were aware of the CSSA; that the parties were aware that application of the child support guidelines would result in the presumptively correct amount of support; the amount of the presumptively correct support that would result under the CSSA; and the parties' reasons for departing from the guidelines.

The wife's counsel further argues that the wife did not waive her request for maintenance because the agreement is not binding. She argues that the plaintiff was a "victim of extortion" in the sum of $70,000.00 in order to obtain a get, a Jewish divorce, from the husband. Furthermore, the wife's counsel argues that the husband earned approximately $42,000.00 annually in 2009, 2010, 2011 and 2012 and only "lost his income basis contemporaneous " with the wife's application for pendente lite support and, therefore, she requests that the Court impute annual income to the husband in the sum of $46,000.00 as set forth in his 2011 tax return for the purposes of determining his financial obligation for pendente lite maintenance and child support.

In her Affirmation in Opposition, dated April 4, 2013, the wife alleges that she [*6]only conceded to joint custody and to the parenting access schedule detailed in the May 17, 2010 writing because she "was intimidated to give in to the Defendant's unreasonable demands of custody, visitation and holidays" and that she believed that the husband would not grant her a get [a religious divorce] unless she did so. She posits that the "court is well aware of the uneven playing field for women in the Jewish orthodox community when negotiations are held to guarantee the giving of the get by the husband to the wife" and that the circumstances surrounding the husband granting her a get "were no different." She alleges that she placed $50,000.00 in escrow to "guarantee performance" that the husband would grant her a get and that she has "not received [the escrow] money and believes that it has been given to the Defendant, and that he is using [her escrow] money to support this litigation."

The husband denies that the wife was a victim in process of obtaining the get and alleges in his affirmation, dated April 8, 2013, that if the wife "did not agree with the tenets of the Jewish Law and Torah or felt that the process was unfair to her, she did not have to go through the Get process" and that it is "disingenuous of her to receive the benefit of the Get and then attack the Jewish Law and Torah under which it was issued." He "categorically" denies the he received any money from the wife in exchange for him granting her a get. The husband alleges that it is he, not the wife, who is being victimized in this litigation: he alleges that "[i]t is only because [he] did not think [the son] should be traveling to Israel, that [the wife] is now retaliating against [him] by trying to take away what [he] value [sic] most in life €" custody of [his] son."

The wife's counsel filed an affirmation in opposition, dated March 27, 2013, to the husband's motion seeking an order directing the wife to comply with the custody and parenting time terms in the parties' "separation agreement" on the basis that decisions regarding custody and parenting time are "not enforceable nor binding" unless determined by the Court. She argues that the terms of the document negotiated before the beth din [a Jewish rabbinical court] and signed by the parties is unenforceable because it lacks acknowledgment by the parties in the form required for a deed as detailed in DRL 236B(3) and that the husband's attempt to "cure" the defect by submitting subsequent sworn statements by the witnesses does not overcome the defect. She further argues that it is inconsequential that the parties have allegedly lived consistent with the terms of the terms in the May 17, 2010 written document.

The wife's counsel argues that the husband's motion attempting to enforce the unacknowledged written document is "frivolous" and, as such, requests an award of counsel fees in the sum of $5,000.00 in addition to the counsel fee application for $15,000.00 in her pendente lite motion dated March 25, 2013.

Husband's counsel filed an affirmation, dated April 8, 2013, arguing that the written document entered into by the parties on May 17, 2010 is enforceable as "a writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be record" pursuant to DRL 236(B)(3) and withstands analysis under [*7]Matisoff. The husband's counsel posits that the "law recognizes more than one way to acknowledge an agreement" and argues that Real Property Law 292 and 304, taken together, provide that a witness to the execution of a deed can subsequently prove the execution of an instrument by stating his place of residence and that he knew the person described in and who executed the conveyance. Husband's counsel argues that four (4) witnesses signed the written document on May 17, 2010 and that those witnesses subsequently executed affirmations dated various dates in March 2013 acknowledging the parties' execution of the document and, therefore, the document was acknowledged in the form of a deed subsequent to execution by the parties. He posits that the subsequent affirmations by the witnesses are sufficient "a method for proving the execution of a deed [and therefore separation agreement] under New York's Real Property Law".

The husband's counsel further argues that the terms in the written document are enforceable because the "[p]laintiff has adhered to its terms for the 2.5 years following its execution" and, as such, the wife cannot challenge the validity of the "agreement" because her compliance with the terms detailed in it effectively "ratified" the agreement despite any alleged defects in execution. Husband's counsel affirms that the wife complied with the custody and parenting access terms in the written document for two and a half (2.5) years and only started to disregard the parenting access schedule during this litigation.

Husband's counsel opposes wife's counsel's application for an additional $5,000.00 in counsel fees arguing that wife's counsel's application must fail because he failed to cite to "any cases holding that a separation agreement is unenforceable despite the submission of written acknowledgments under RPL 292 and 304 from a subscribing witness" and, as such, his application for additional counsel fees based on the allegation that the husband's cross-motion is "frivolous" should be denied.

Custody and Access Issues

The May 17, 2010 writing provides that the parties shall share joint legal custody of the parties' child with the husband having the final determination of the choice of Yeshiva and education decisions for the children and that the parties shall have joint decision-making on all health issues and other matters. The writing also detailed the following parenting access schedule between the child and the father: 1) every other Sabbath from Friday two (2) hours before candle lighting until Saturday evening two (2) hours after the end of Sabbath and on weeks when the child is with the father on Sabbath he will also be with the father for three (3) hours on Sunday after school but when he is not with the father for the Sabbath the child will spend three (3) hours with the father on Wednesday after school; 2) the child will spend four (4) weeks during the summer [from Thursday until Sunday] with the father; and 3) religious and other holidays would be shared as detailed in the document.

The husband's counsel alleges that since commencing the litigation the wife has started denying the father the after-school visits on alternate Sundays and has unilaterally [*8]reduced the alternate Wednesday after-school visit from three (3) hours to two and a half (2.5) hours. The husband's counsel requests in his Affirmation, dated April 8, 2013, that the Court enforce the access schedule detailed in the writing and that the Court require that the wife give the husband the right to additional parenting time with the child before she engages the services of a babysitter for the child.

In her Affirmation in Opposition, dated April 4, 2013, the wife requests that the Court make specific modifications for the schedule in the May 17, 2010 written document.

The LawThe plaintiff-wife asserts that the May 17, 2010 written document is invalid due to alleged failure to comply with the acknowledgment requirements of DRL § 236(B)(3). Domestic Relations Law § 236(B)(3) provides, in relevant part, that:An agreement by the parties, made before or during the marriage,shall be valid and enforceable in a matrimonial action if such agreement is in writing, subscribed by the parties, and acknowledged or proven in the manner required to entitle a deed to be recorded.

In the landmark decision of Matisoff v. Dobi, the Court of Appeals interpreted the statute and held that:

The statute prescribes acknowledgment in the manner required to entitle a deed to be recorded.' This requires both that an oral acknowledgment be made before an authorized officer and that a written certificate of acknowledgment be attached (see Real Property Law § § 291, 306). As this Court has explained, [a]n instrument is not "duly acknowledged" unless there is not only the oral acknowledgment but the written certificate also, as required by the statutes regulating the subject' (Rogers v Pell, 154 NY 518, 529 [1898]). (90 NY2d 127, 137-138 [1997]).

Accordingly, the Court in Matisoff determined that where a marital agreement governed by DRL § 236(B)(3) lacks the requisite certification, such defect cannot be rectified by the testimony of the parties in open court that the signatures on the subject document are authentic (see id.). The Court specifically stated that maintaining "a bright-line rule requiring an acknowledgment in every case is easy to apply and places couples and their legal advisors on clear notice of the prerequisites to a valid nuptial agreement"; however, the Court stated that it was "unclear whether [such] acknowledgment must be contemporaneous with the signing of the agreement" (id. at 137). Noting that both section 236(B)(3) and the relevant provisions of the Real Property Law governing the acknowledgment and recording of deeds do not specify when the requisite acknowledgment must be made, the Court of Appeals declined to reach the issue given [*9]that the admissions by the parties in Matisoff did not constitute a proper acknowledgment as codified by section 236(B)(3). The Court did note in Matisoff that the acknowledgment requirement imposed by DRL 236(B)(3) is onerous and, in some respects, more exacting than the burden imposed when a deed is signed (id. at 134-135) because although an unacknowledged deed cannot be recorded (rendering it invalid against a subsequent good faith purchaser for value) it may still be enforceable between the parties to the document (i.e. the grantor and the purchaser). The Court held in Matisoff that the same was not true for a nuptial agreement which is unenforceable in a matrimonial action even when the parties acknowledge that the signatures are authentic and the agreement was not tainted by fraud or duress (id. at 135).

Since the 1997 Matisoff decision, the Appellate Courts throughout the State of New York have addressed the question as framed, but not addressed, by the Court in Matisoff of "whether and under what circumstances the absence of acknowledgment [in an agreement governed by section 236(b)(3)] can be cured" (Matisoff, 90 NY2d at 137). The question has largely arisen in cases where a signature was not accompanied by any certificate of acknowledgment. The weight of the Appellate Division authority has been against permitting the absence of an acknowledgment to be cured after the fact, unless both parties engaged in a mutual "reaffirmation" of the agreement.

In Anonymous v Anonymous (253 AD2d 696 [1998], lv dismissed 93 NY2d 888 [1999]), the Appellate Division, First Department revisited the issue, albeit in dicta, reversing a trial court's grant of reargument on the issue of whether the absence of an acknowledgment in a prenuptial agreement is curable, as well as its concomitant declaration, upon reargument, that the agreement was enforceable. Although the reversal was based upon the appellate court's finding that the "motion to renew and reargue should not have been granted, based as it was on evidence, namely, a certificate of acknowledgment, that defendant could have but did not submit on the original motion," the court also noted that "[i]n any event, we would not permit defendant to cure this defect in the agreement by an alleged acknowledgment in affidavit form which was executed and which surfaced some 12 years after the fact in the midst of a contested matrimonial action in light fo the required formalities of Domestic Relations Law § 236(B)(3)" (id. at 697).

Said dicta was relied upon, in part, by the appellate court in Schoeman, Marsh & Updike, LLP v Dobi (264 AD2d 572 [1999], lv dismissed 94 NY2d 944 [2000]). There, the Appellate Division, First Department reversed a trial court's denial of the plaintiff law firm's motion for partial summary judgment dismissing defendant's counterclaim for malpractice.[FN4] Defendant alleged that the plaintiff law firm failed to request, in the underlying divorce action, the execution of a certificate of acknowledgment by the trial [*10]judge with respect to a 13-year old post-nuptial agreement between the parties. The appellate court based its reversal, in part, on the prior "holding" in Anonymous, wherein it determined "that parties in the midst of a divorce proceeding should not be able to obtain retroactive validation of a postnuptial agreement" because acknowledgment formalities in DRL 236(B)(3) require "that the parties have contemporaneously demonstrated the deliberate nature of their agreement" (id. at 573).

Subsequently, the Appellate Division, Fourth Department addressed the issue in Filkins v Filkins (303 AD2d 934 [2003]). In Filkins it was undisputed that no written certificate of acknowledgment was attached to the subject antenuptial agreement between the parties when the parties entered into the agreement. Given the lack of such certificate, the appellate court held that "plaintiff's attempt to cure the defect by having the agreement notarized and filed after the commencement of [the] divorce action fails because the agreement was never reacknowledged in compliance with [DRL] § 236(B)(3)" (id.). Accordingly, as a valid reacknowledgment was apparently never made, the agreement was deemed unenforceable, although the court's language indicated that such agreement could have been salvaged if a proper reacknowledgment - perhaps akin to the properly acknowledged "reaffirmation" made by the parties in the Arizin case - had been made at some point subsequent to the initial execution of the document in question.[FN5]

Thereafter, in D'Elia v D'Elia (14 AD3d 477 [2005]), the Appellate Division, Second Department held that "[t]he defendant's attempt to cure the acknowledgment defect by submitting a duly-executed certificate of acknowledgment at trial was not sufficient" where "it [was] uncontroverted that the parties' post-nuptial agreement was not properly acknowledged at the time that it was executed" (id. at 478). Accordingly, the Second Department found that the subject post-nuptial agreement was unenforceable and the trial court, therefore, had improperly relied upon it in distributing the parties' property.

Recently, in Galetta v. Galetta, the Court of Appeals addressed for the first time the issue of whether the absence of an acknowledgment conforming to DRL 236(B)(3) can be "cured" (21 NY3d 186, 969 N.Y.S.2d 826 [2013]). In Galetta, the plaintiff-wife sought a determination that a prenuptial agreement she and the defendant signed was invalid due to a defective acknowledgment. In that case, the parties each separately signed a prenuptial agreement. Neither party was present when the other executed the [*11]document and the signatures were witnessed by different notary public. It was undisputed that the signatures on the document were authentic and there was no claim that the agreement was procured through fraud or duress. The crux of the issue was the language used for the certificate of acknowledgment. The language used for the plaintiff's certificate of acknowledgment contained "the boilerplate language typical of the time"; however, in the acknowledgment relating to the defendant's signature, a "key phrase" was omitted so that there was no indication that the notary public confirmed the identity of the person executing the document or that the person was the individual described in the document (id. at 2). Sometime after the marriage the defendant filed for divorce and the wife moved for summary judgment on the request for declaratory relief, contending that the agreement was invalid under DRL 236(B)(3). The defendant opposed the motion, asserting that the prenuptial agreement was enforceable because the language of the acknowledgment "substantially complied" with the Real Property Law and he submitted an affidavit of the notary public who witnessed his signature approximately thirteen (13) years before and executed the certificate of acknowledgment.

The Court of Appeals held in Galetta that the plaintiff was entitled to summary judgment declaring the agreement unenforceable under DRL 236(B)(3) finding that the acknowledgment was insufficient due to the omission in the requisite language of one of the certificates of acknowledgment through no fault of the parties. The Court of Appeals went on to state, albeit in dicta, that "[w]hen there is no acknowledgment at all, it is evident that one of the purposes of the acknowledgment requirement €" to impose a measure of deliberation and impress upon the signer the significance of the document €" has not been fulfilled. Thus, a rule precluding a party from attempting to cure the absence of an acknowledgment through subsequent submissions appears to be sound" (id. at 7).

In the case at bar, the defendant proposes that the complete absence of an acknowledgment in compliance with DRL 236(B)(3) can be cured subsequently based on a hybrid of Real Property Law sections 292, 303 and 306.[FN6] The weight of the Appellate Division case law on the issue, including the Appellate Division, Second Department decision in D'Elia, and the express statement on the issue by the Court of Appeals recently in Galetta do not support the husband's position. At this time, the controlling [*12]case law holds that in the absence of a contemporaneous acknowledgment an agreement cannot be cured by a subsequent acknowledgment absent both parties engaging in a mutual "reaffirmation" of the agreement with the proper contemporaneous acknowledgments (see D'Elia, 14 AD3d 477 [2 Dept.,2005]). It is undisputed that the parties' signatures were not duly acknowledged pursuant to DRL § 236(B)(3) contemporaneous to their execution of the May 17, 2010 document. Here, the certificate of acknowledgment was not generated contemporaneously with the parties signing the agreement.

This Court grants plaintiff's motion seeking a declaration that the subject May 17, 2010 nuptial agreement is invalid and unenforceable under DRL 236(B)(3) (see D'Elia, 14 AD3d at 478; accord Schoeman Schoeman, Marsh & Updike, LLP, 264 AD2d at 573-574). The Court finds that it is bound to follow the Appellate Division, Second Department's holding in D'Elia that an acknowledgment defect present at the time the agreement was first executed €" here the defect being the complete absence of any certificate of acknowledgment €" cannot be cured by the submission to the Court of a subsequently executed valid certificate of acknowledgment.As such, the Court finds that the May 17, 2010 written document signed by the parties, which was not accompanied by contemporaneous certificates of acknowledgment, is not valid and is unenforceable as a nuptial agreement under DRL 236(B)(3). Accordingly, the plaintiff's motion for a declaration that the May 17, 2010 "agreement" is invalid and unenforceable is granted.[FN7]

Interim Parenting Access Schedule

It is undisputed that, from the signing of the May 17, 2010 document until the present litigation began, the parties shared joint decision making for the child with the mother having residential custody of the parties' child with the father enjoying parenting time with the child as follows: 1) every other Sabbath from Friday two (2) hours before candle lighting until Saturday evening two (2) hours after the end of Sabbath and on weeks when the child is with the father on Sabbath he will also be with the father for three (3) hours on Sunday after school but when he is not with the father for the Sabbath the child will spend three (3) hours with the father on Wednesday after school; 2) the child will spend four (4) weeks during the summer [from Thursday until Sunday] with the father; and 3) religious and other holidays would be shared as detailed in the document.

Husband's counsel alleges that since the beginning of litigation the wife has started denying the father the after-school visits on alternate Sundays and has reduced the alternate Wednesday after-school visit from three (3) hours to two and a half (2.5) hours. Husband's counsel further requests in his Affirmation, dated April 8, 2013, that the wife [*13]be required to give the father the right to additional parenting time with the child before engaging the services of a babysitter for the child.

The wife alleges that she has been the child's primary care giver since birth and that the husband "has never cared for [the child] without the assistance" of his family members. The wife classifies the husband's involvement in the child's care during the first three (3) years of his life when the parties resided together as "minimal at best." The wife alleges that she is "very concerned about the time [the child] spends with his father" because she fears that the husband will use that time to "attempt to win [the child] over" and "to reduce [the wife] in importance...." In her Affirmation in Opposition, dated April 4, 2013, the wife requests that the Court make specific modifications to the parental access schedule the parties and the child have observed since 2010. She proposes that during the school months the child visit with the husband on alternate weekends from Friday, two (2) hours before the Sabbath until Saturday, two (2) hours after Sabbath ends and that on the Tuesday immediately following the weekend when the husband visits with the child that he also have a visit from after school to 6:00 p.m. She proposes that during the summer school recess the husband's parenting access be limited to four (4) weekend visits from Thursday after day camp ends until Sunday at 8:00 p.m.

The husband opposes any change to the parenting access schedule detailed in the May 17, 2010 writing and requests that the Court enforce the parenting access schedule that the parties and the child have observed since 2010.

The attorney for the child did not submit any papers or take any position at oral argument regarding the issues of interim custody and/or parenting access.

The Court notes that it is undisputed that the parties lived in compliance with parenting schedule memorialized in the May 17, 2010 writing for almost three (3) years. Neither party alleges that the parenting schedule was not working well for the parties' child during the years before the present litigation began. The Court further notes that neither party has raised any legally sufficient facts to modify the existing parenting schedule pre-trial other than conclusory allegations. As such, the Court finds that there is no basis to change the present parenting schedule that the child has been familiar with for the last three (3) years before the parties began the present litigation notwithstanding the fact that the parties' May 17, 2010 writing is insufficiently acknowledged and therefore is unenforceable as a binding written agreement between the parties.

The Court finds that, pendente lite, the wife shall continue to have residential custody of the parties' child, as she has had for the last three (3) years. The parties shall continue to share joint custody of the child; however, the father shall continue to have final decision making on the issue of the child's education, including determining which school or Yeshiva the child shall attend. The parties shall continue to inform and consult with one another regarding all major decisions regarding the child.

Parenting Time Schedule

The husband shall continue to have parenting time with the child as follows:

Every other Sabbath from Friday two (2) hours before candle lighting until Saturday evening two (2) hours after the end of Sabbath.

Each week when the father has parenting time with the child for the Sabbath he shall also have parenting for three (3) hours on Sunday after school (pick-up from the child's school and drop-off curb-side at the wife's residence).

Each week when the father does not have parenting time with the child for the Sabbath he shall have parenting time for three (3) hours with on Wednesday after school (pick-up from the child's school and drop-off curb-side at the wife's residence)

The father shall have uninterrupted parenting time with the child for four (4) weeks during the summer (from Thursday after day camp until the next Sunday at 8:00 p.m.).

The parties shall share religious and other holidays as previously detailed in the May 17, 2010 writing.

The parties are directed that they shall not disparage the other party in front of the child and shall make every effort to assure that anyone who provides child care for the child at any time does not disparage either of the parents in front of the child. The parties are admonished not to attempt to alienate in any way, either by statement or in action, the child from the other parent.

Plaintiff's Application for 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 [*14]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 2012 tax return, she earned annual gross income in the sum of $14,748.00, after deducting FICA/Medicare and NYC taxes. The husband argues that the Court cannot rely on the gross income in the wife's individual 2012 tax return to calculate the presumptively correct pendente lite maintenance because, he alleges, she has and is currently collecting a cash salary from a second job which she does not declare on her tax returns. The husband alleges that the wife collects approximately $800.00 weekly in cash from her undisclosed second job. The wife denies the husband's allegation that she earns any undeclared cash income.

According to the husband's individual 2011 tax returns, he earned annual gross income in the sum of $43,433.00 after deducting FICA/Medicare and NYC taxes.[FN8] The husband argues that the Court shoulddisregard his 2012 tax return in calculating the presumptively correct pendente lite maintenance because, he alleges, he is currently earning much less income through no fault of his own. The husband requests that if the [*15]Court calculates an award of pendente lite maintenance that it utilize his "expected gross income of $18,547.20" for 2013.[FN9] The husband also argues that the Court should deny the wife's application for any pendente lite maintenance because the parties have lived separate and apart since 2008 and, he posits, the wife has supported herself without any contribution from him since that time.

Based on the wife's annual gross income, as reported on her 2012 individual tax return ($14,748.00) and the husband's annual gross income, as reported on his 2012 individual tax return ($43,181.00), the presumptively correct sum of pendente lite maintenance award would be $701.97 monthly ($8,423.60 annually). The Court notes that the formula in the statute for calculating the presumptively correct sum of pendente lite maintenance award is the parties' gross income as reported on the last year tax return (see DRL 236 [B] (5€"a) (b) (4)).

For the purposes of calculating temporary maintenance the wife's annual income is $14,748.00 and the husband's annual income is $43,181.00. As such, the husband is deemed the "payor" spouse and the wife is deemed the "payee" spouse for the purposes of calculating any award of temporary maintenance and/or child support. The presumptive award of temporary spousal maintenance is calculated using the formula set forth in DRL § 236(B)(5€"a)(c)(1), as follows:

I. INCOME

1. Plaintiff$14,748.00

2. Defendant$43,181.00

Income Over $500,000.00

3. Plaintiff$0.00

4. Defendant$0.00

II. CALCULATIONS

Income up to $500,000.00:

5. Plaintiff$14,748.00

6. Defendant$43,181.00

Basic Calculation:

7. Calculation A$10,004.7030% of Payor's Income minus 20% of Payee's Income.

8. Calculation B$8,423.6040% of Combined Income minus Payee's Income.

9.Guideline Amount:$8,423.60The Guideline Amount is the Lesser of Line 7 and Line 8; or Zero if Line 8 is less than or equal to Zero.

Low Income Calculation (If Applicable)

10. Payor Income minus [*16]

Guideline Amount$34,758.00

11. Low Income Amount$0.00Where the guideline amount would reduce the Payor's Income below the self-support reserve ($14,620.00), the award is the Payor's income minus the self support reserve. If Line 11 equals Zero, there is no adjustment for low income.

III AWARD PAYOR:Defendant

12. Annual Amount$8,423.60

13. Monthly Payment$701.97

Income Exceeding $500,000.00: If the Payor's income exceeds $500,000.00, the court considers 19 factors set forth in DRL § 236(B)(5€"a)(c)(2)(a) in determining any additional award of temporary maintenance. In the case at bar there is no income that exceeds $500,000.00.

In accordance with DRL 236 [B](5€"a)(e)(1) "[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; [*17]

(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.This Court has fully considered the temporary maintenance guidelines and statutory factors in the Domestic Relations Law 236(B). Based on the parties' 2012 tax returns as presented, the husband is the monied-spouse. As such, an award of the presumptively correct pendente lite spousal support under the statute is appropriate. Commencing on the 1st day of November 2013, and continuing on the 1st day of each month thereafter, the husband shall pay the sum of $701.97 monthly to the wife as and for pendente lite spousal support. This award of temporary maintenance shall be deductible by the husband and income to the wife to the extent permitted by the applicable tax law.

A determination of whether or not income should be imputed to either or both of the parties is reserved for the trial court when discovery is complete and sworn testimony is placed on the record. The Court also notes that, despite the husband's representation that his reduced annual income is not a result of any inaction on his behalf, the reduction in income by almost two-thirds (66%) occurred in the months immediately preceding the filing of the parties' cross motions regarding the issues of pendente lite maintenance and child support.The Court further notes that under the currently existing temporary maintenance statutean overpayment of maintenance pendente lite can be reallocated upon final determination at time of trial.

Pendente Lite Child Support

The child support obligation in accordance with the Child Support Standards Act [CSSA] for one (1) child is 17% of the combined parental income [see DRL 240]. The husband's income for child support purposes based on his 2012 income tax returns is $43,181.00 and the wife's income for child support purposes based on her 2012 income tax returns is $14,748.00. The combined parental income is $57,929.00 ($43,181.00 [husband] + $14,748.00 [wife]) and the husband's pro rata share of child support is 75% and the wife's pro rata share of child support is 25%.

The Court multiplies the combined parental income figure, up to a cap of $136,000.00, 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 Holterman v. Holterman, 3 NY3d at 11, supra, citing DRL 240[1-b][b][3] [c] [2]). In the final step, where combined parental income exceeds $136,000.00, "the court shall [*18]determine the 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 [Domestic Relations Law § 240(1-b)] and/or the child support percentage." (id). Finally, the Court is required to articulate its reasons for awarding child support in addition to basic child support (see Wallach v. Wallach, 37 AD3d 707, supra, citing Matter of Cassano v. Cassano, 85 NY2d 649, 654-655, supra; Clerkin v. Clerkin, 304 AD2d 784 [2003]; Wagner v. Dunetz, 295 AD2d 501 [2002]).

There is one (1) unemancipated child of the marriage, therefore, in accordance with the CSSA, 17% of the combined parental income would be applied to child support. Accordingly, the husband's pro rata share (75%) of child support is $7,340.77 annually; $611.73 monthly. Commencing on the 1st day of November 2013, and continuing on the 1st day of each month thereafter, the husband shall pay the sum of $611.73 monthly to the wife as and for pendente lite child support.

Child Support Add-Ons

The parties shall be financially responsible, pendente lite, for the cost associated with the child's educational expenses pro rata as follows: the husband shall pay 75% and the wife shall pay 25%. The Court notes that it is undisputed that the husband selected the child's school. The husband shall pay his pro rata share of the child's school tuition directly to the school. The wife shall provide the husband with copies of receipts for any other educational expenses for the child and that husband shall provide the wife with his pro rata share within fourteen (14) days of receipt.

Retroactivity

The Court notes that awards of pendente lite maintenance and child support are effective as of the date of first 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 husband's pendente lite maintenance obligation is $701.97 monthly ($8,423.60 annually.) The retroactive award of pendente lite maintenance is calculated from the date of the wife's first application, March 25, 2013, and totals $4,913.79 ($701.97/month x 7 months [May 25, 2013 through October 25, 2013]). The retroactive [*19]award of pendente lite child support is calculated from the wife's first application, March 25, 2013, and totals $4,282.11 ($611.73/month x 7 months [March 25, 2013 through October 25, 2013]). Retroactive sums due by reason of these retroactive awards [$4,913.79 pendente lite maintenance arrears + $4,282.11 child support arrears = $9,195.90 for May 25, 2013 through October 25, 2013] shall be paid, together with the monthly pendente lite spousal support and child support obligation, at the rate of $200.00 monthly until paid in full, with a credit for any temporary maintenance or child support already made by check or other negotiable instrument, since March 25, 2013, the date of the wife's first application for pendente lite maintenance andchild support (see Domestic Relations Law § 236 [B][6][a]).(see Mosso v. Mosso, 84 AD3d 757, 924 N.Y.S.2d 394 [2 Dept.,2011]).

Interim 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.

It has long been established that "[a]n award of an attorney's fee pursuant to 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]). [*20]

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].

The wife's counsel, submitted an affirmation in support of an award of counsel fees dated March 20, 2013. An undated retained agreement signed by the wife was annexed as an exhibit to her March 25, 2013 Notice of Motion. The retainer agreement provides that the wife will be billed at a rate of between $75.00 to 400.00 for legal services rendered in connection with this matrimonial action depending on whether the service is rendered by a paralegal or an attorney in the firm. The wife affirmed that she paid an initial retainer fee in the sum of $5,000.00. Wife's counsel seeks an award of pendente lite counsel fees in the sum of $15,000.00 and annexed bills in support of the request, which as of March 26, 2013, reflected counsel fees due and owing in the sum of $10,400.00 after expending the total retainer of $5,000.00.[FN10] Wife's counsel's hourly rate [*21]appears reasonable based upon his experience.

The husband provided a copy of his retainer agreement, dated December 4, 2012, stating that he paid an initial retainer in the sum of $7,500.00. The retainer agreement provides that the husband will be billed at a rate of between $250.00 to $350.00 for legal services rendered in connection with this matrimonial action depending on whether the service is rendered by an associate or a partner in the firm. There was no representation in the husband's papers or annexed bills reflecting counsel fees due and owing to the husband's attorneys or what, if any, sum of the initial retainer remained unused. The husband's counsel argues that "[i]n light of the fact that the parties have essentially equal incomes and in light [the husband's] obligations [under the agreement] with regard to child support and tuition, an award of attorneys fees is not warranted".

The Court notes that based on the parties respective annual incomes, the parties' incomes are not "essentially equal" as alleged by the husband. The husband's argument that he should not be required to contribute toward the wife's interim counsel fees if he is required to pay pendente lite maintenance and/or child support is unavailing. The Court is unaware of any legal precedence which dictates that the statutory presumption that the monied-spouse €" herein, the husband €" contribute to the interim counsel fees of the less-monied spouse €" herein, the wife €" is in any way nullified where the monied-spouse is obligated to pay pendente lite maintenance and/or child support.

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 $7,500.00 is just and appropriate. This award of $7,500.00 to the wife 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 affirmed to in their respective Statements 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. 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 $5,000.00 shall be made directly from the husband to the wife's counsel within thirty (30) days of service of notice of entry of this decision and order. The husband shall make the remaining payment of $2,500.00 within [*22]sixty (60) days of service of notice of entry of this decision and order. If the husband fails to make the initial payment in compliance with this decision and order the wife's attorney may enter a judgment 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.

Conclusion

The wife's motion, dated March 25, 2013, is granted to the extent stated herein above. The husband's motion, dated March 25, 2013, is granted to the extent stated herein above. The wife is awarded interim residential custody of the parties' child. The parties shall have joint legal custody of the parties' child. The husband shall have parenting time as detailed herein above. The wife is granted pendente lite maintenance in the sum of $701.97 monthly to commence on November 1, 2013 and to continue payable on the 1st of each month thereafter. The wife is granted pendente lite child support in the sum of $611.73 monthly for the parties' one (1) child to commence on November 1, 2013 and to continue payable on the 1st of each month thereafter. The husband shall pay to the wife an additional sum of $200.00 on the 1st of each month as and for pendente lite maintenance and child support arrears until the arrears in the sum of $9,195.90 are paid in full. The parties shall be financially responsible for child support add-ons, including the child's tuition, pro rata as follows: 75% by the husband and 25% by the wife. The wife is awarded pendente lite counsel fees in the sum of $7,500.00 without prejudice to future applications for additional counsel fees, as necessary at the time of trial or sooner, upon the requisite showing.

A compliance conference shall be held in this matter on December 19, 2013. The parties are directed to complete all discovery prior to the compliance conference.

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 wife sought temporary custody of the parties' minor son in order to travel with the child to Israel to attend her brother's wedding over the husband's objection. The husband, an observer of one faction the Satmar religious sect, objected to the child traveling to the state of Israel because, the father argued, the child had been raised to observe the tenets of the Satmar Hasidism and, the father argued that the tenets of Satmar Hasidism forbid a child from traveling to Israel because it is believed that the State of Israel and the Zionist idea upon which the State is built conflict with the central tenets of the Ultra-Orthodox Satmar teachings.

Footnote 2: The Court notes that the tax return annexed to the wife's motion in support of this statement is the husband's 2011, not his 2012, personal tax return. The wife and husband's written statements are affirmed, rather than sworn to, based on religious observance (see CPLR 2309(b)).

Footnote 3:The Court notes that in Lennox v. Weberman, the First Department, Appellate Division, rejected the argument that a litigant waived a claim to temporary maintenance by waiving a final award of maintenance in a prenuptial agreement absent an "express agreement to exclude an award of temporary maintenance" (109 AD3d 703 [2013]; see also Tregelias v. Tregelias, 169 A.D.2df 553 [1st Dept.,1991]).

Footnote 4: The legal malpractice action in question stemmed from the Matisoff v Dobi matter previously discussed in this decision.

Footnote 5:In Arizin v. Covello, 175 Misc 2d 453, 669 N.Y.S.2d 189 [1998], the trial court held that "an unacknowledged nuptial agreement which is acknowledged on a subsequent date is enforceable as long as the subsequent acknowledgment complies with the statutory requirements of DRL § 236(B)(3)" (id. at 457, 669 N.Y.S.2d 189). In Arizin, the Court determined that the pre-nuptial agreement in question was valid, even though it was undisputed that such agreement was not acknowledged by the parties when it was signed, since the parties subsequently executed a "reaffirmation" of the agreement and attached a proper certificate of acknowledgment to the reaffirmation.

Footnote 6:Real Property Law 292 requires that the party signing the document orally acknowledge to the notary public or other officer that he or she in fact signed the document. Real Property Law 303 precludes an acknowledgment from being taken by a notary or other officer "unless he [or she] knows or has satisfactory evidence that the person making it is the person described in and who executed such instrument." Real Property Law 306 compels the notary or other office to execute "a certificate...stating all the matters required to be done, known, or proved" and to endorse or attach that certificate to the document.

Footnote 7:In light of this determination, the Court need not reach the issues of whether or not the agreement was procured by fraud or overreaching or the issue of ratification.

Footnote 8:The wife annexed the husband's 2011 individual tax return to her Order to Show Cause, dated March 25, 2013. In her papers she refers to this exhibit as the 2012 tax return. The husband did not annex his 2012 individual tax return to his answering papers or to his Notice of Motion, dated March 25, 2013. On the record at the court appearance on April 9, 2013, this Court directed the husband to file a copy of his 2012 tax return. Husband's counsel forwarded a copy of the husband's 2012 tax return to the Court on April 16, 2013.

Footnote 9:The Court notes that the husband estimates in his Statement of Net Worth, dated March 4, 2013, that his projected 2013 income, based on four (4) pay stubs [dated January 4, 2013; January 18, 2013; February 1, 2013; and February 15, 2013], will be $15, 287.52.

Footnote 10:The Court notes that the bill submitted by wife's counsel details that 37.75 hours have been rendered in legal services at the rate of $400.00/hour and that expenses in the sum of $300.00 have been expended in connection with the matter. The bill states that the resulting sum owing is $15,400.00; however, there is a calculation error in the bill as the correct sum for 37.75 hours at the rate of $400.00/hour is $15,100.00, not $15,000.00 as detailed on the bill. The Court notes that the final balance in the sum of $10,400.00 on the bill appears correct.