Luce v Griffin

[*1] Luce v Griffin 2013 NY Slip Op 51949(U) Decided on October 15, 2013 Supreme Court, Kings County Thomas, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 October 15, 2013
Supreme Court, Kings County

Douglas Luce, Plaintiff,

against

Kathleen Griffin, Defendant.



53211/12



Attorney for the plaintiff, Douglas Luce

Casey Greenfield, Esq.

Greenfield Labby LLC

65 Bleecker Street, 12th floor

New York, NY 10012

Attorney for the defendant, Kathleen Griffin

Michael Macklowitz, Esq.

299 Broadway, Suite 1405

New York, NY 10007

Delores J. Thomas, J.

Upon the foregoing cited papers, in this matrimonial action, the Decision/Order on this motion is as follows:

Defendant-wife ("Defendant") seeks an order for the following pendente lite relief: 1) [*2]awarding defendant $10,000 per month in maintenance; 2) directing plaintiff to continue to maintain or provide medical and dental insurance through his employment and to pay 100% of any unreimbursed medical, dental, pharmaceutical, psychological expenses on defendant's behalf, and 3) awarding defendant $20,000 in counsel fees with leave to seek additional fees when appropriate.

Plaintiff opposes the motion in its entirety.

Factual and Procedural History

The parties were married on October 1, 2011. There are no children of the marriage and none are expected. Plaintiff is 37 years of age and is a self employed psychiatrist. Defendant is also 37 years old and is an artist. Defendant is currently unemployed but has a Masters Degree in Fine Arts.

The parties separated in May 2012. Thereafter, on August 8, 2012, plaintiff filed for divorce on the ground of irretrievable breakdown of the marriage. The instant motion was filed on January 18, 2013 and made returnable on February 28, 2013. On February 28, 2013 the preliminary conference ("PC") was held. The matter was thereafter adjourned. The motion was subsequently submitted after oral argument on September 20, 2013. The parties are next scheduled to appear before the court on December 2, 2013.

Defendant's Contentions

Defendant indicates she had previously been employed part-time as a college adjunct lecturer and a self-employed artist. Defendant alleges that shortly before her marriage to plaintiff, he advised her that he did not wish her to work.[FN1] Defendant says she also earned money prior to her marriage to plaintiff by finding properties, improving them and reselling them for a profit. Defendant asserts that she presently has no source of income and no ability to meet her most basic living requirements for food, clothing and shelter and claims that without immediate relief, she is in danger of becoming a public charge.

Defendant states that shortly before the marriage, she moved into the marital residence and also moved her art studio to the residence together with much of her art work. Defendant alleges that during the course of the few short months of their marriage, plaintiff engage in a pattern of physical, emotional and psychological abuse against her. She alleges that on several occasions she required medical treatment as a result of the abuse.

Defendant states that although her marriage was of a short duration, it had a catastrophic effect on her financially, physically and psychologically. Defendant indicates that on May 5, 2012, plaintiff had her wrongfully excluded from the marital residence by filing a false police report against her resulting in her arrest for assault and issuance of a temporary order of protection against her. Defendant also claims that plaintiff stabbed himself in the abdomen approximately 10 times and then claimed that she attacked him.

Defendant states that her basic needs for food, clothing and shelter are minimally, [*3]$10,000 [FN2] per month. Specifically, defendant lists the following as monthly expenses:

a.Rent$2,500

b.Utilities (gas/electric/tel)500

c.Food/dining out2,500

d.Clothing1,500

e.Laundry200

f.Insurance (auto/medical)850

g.Unreimbursed medical500

h.Household maintenance250

I.Automotive [FN3]1,100

j.Educational (student loan)350

k.Recreational200

l.Misc (beauty/books/news)700

TOTAL EXPENSES$11,150

Defendant asserts that her request for pendente lite monthly maintenance is based upon plaintiff's having an income of at least $400,000 per year. Defendant argues that the presumptive amount of $10,000 in monthly maintenance is just and fair. Specifically, defendant argues that plaintiff has taken a variety of acts that have inhibited her ability to be self supporting, i.e. committing acts of domestic violence against her; having her wrongfully arrested; and taking all of her artwork which prevents her from conducting business.

Defendant claims that during the parties' marriage, they dined out and enjoyed entertainment frequently, and that she exposed plaintiff to many cultural events, world travel and dining. Defendant avers that during the marriage, her role was to take care of the plaintiff during the day. She cleaned the house daily, took care of laundry and dry cleaning, did countless errands including shopping for plaintiff's wardrobe and addressed his personal hygiene needs. Defendant reports that other than maid service that came in approximately twice, a month, she was completely responsible for the entire household.

Defendant states that the level of support she provided for plaintiff was enormous. For example, she took him to tailors in Shanghai to have his clothing made and completely refitted his wardrobe so that he would look appropriate as a prominent psychiatrist. Defendant says she exposed him to cultural events and the world. Defendant alleges that all this was beneficial to plaintiff's career and as a direct result, helped plaintiff to expand his practice with high paying clients. [*4]

Defendant seeks an order directing plaintiff to provide her with medical insurance [FN4] and to pay 100% of her unreimbursed medical expenses because she believes defendant has obtained medical insurance through his practice and she cannot afford to pay for medical insurance or unreimbursed expenses.

Defendant also seeks $20,000 in counsel fees pendente lite, with leave to make further application for counsel fees in the prosecution of this matter because the matter involves a variety of issues including, but not limited to: maintenance, valuation of real estate; equitable distribution; counsel and expert fees.

Plaintiff's Contentions

Plaintiff avers that he and defendant were only married for seven months when they separated and he filed for divorce. Plaintiff claims that throughout the short marriage, defendant physically abused and tormented him until finally in May 2012, the abuse culminated in defendant stabbing him multiple times. Plaintiff states that defendant is continuing that abuse by trying to squeeze money from him to which she has no right, and by filing papers full of outrageous demands and distortions of fact.

Plaintiff indicates that for 2011 he earned approximately $327,000 and while his taxes had not been filed as of the date his opposition was submitted, he believes he made the same amount for the year 2012. Plaintiff asserts that despite defendant's claims of zero income, approximately $65,000 should be imputed to defendant for 2012, including income she is capable of earning as a professor ($15,000), income ($18,000)[FN5] from rental property she owns in Ithaca, New York and from income related to her "Butterflies of Memory"[FN6] public art project ($30,000)[FN7]. Plaintiff asserts that for months his attorney has tried to reach out to defendant' attorney to settle the matter and to facilitate a return of defendant's property and artwork to her. Plaintiff claims that instead of reaching out to him and his attorney in response, defendant and [*5]her attorney filed the instant order to show cause ("OSC") without making any of defendant's demands known to him and his counsel.

Plaintiff's NWS lists his monthly expenses as $22,516. 69. However, $9,652.57 [FN8] reflects income taxes such as federal, state, city, social security and medicare, and $4,171.84 for housing expenses such as the mortgage, real estate taxes and condominium charges. Plaintiff's monthly food costs are listed at $2,690.10; clothing at $300; laundry at $170; insurance: life ( ), homeowner's/tenants ($137.50), automobile [FN9] ($400), medical ($603) and malpractice (432.50). Plaintiff's total recreational expenses are cited as $385.

Plaintiff's monthly income is reported to be $27,214.83. Plaintiff lists the following assets: cash ($300); Bank of America checking account x5975 ($13,590); Citibank x6205 ($14,925.67); Citibank IRA ($40,000); net value on condo ($172,404)[mortgage of $587,596 minus estimated market value of $760,000].

Plaintiff contests defendant's NWS and indicates that the figures listed therein are not commensurate with the standard of living the parties enjoyed during the marriage. Plaintiff argues that the purpose of temporary maintenance is to provide for defendant's true financial needs during the pendency of the divorce, not to subsidize a luxurious lifestyle which is not commensurate with the lifestyle the parties lived during their marriage.

Plaintiff asserts that the presumptive temporary maintenance amount is $7,081 and not the $10,000 cited by defendant.[FN10] Plaintiff further argues that this amount is unjust and unfair in this case and that the court should deviate from the presumptive amount based upon the factors listed in DRL §236(B)(5). Specifically, plaintiff argues that the court should consider the brevity of the parties' marital relationship; the relatively modest marital lifestyle they enjoyed; domestic violence perpetrated by defendant against plaintiff [FN11]; the defendant's earning ability; and defendant's capacity to reenter the workforce. Plaintiff argues that based upon these factors, the court should deviate downward from the presumptive amount and deny defendant's request for [*6]pendente lite maintenance entirely.

Plaintiff further asks that the court deny defendant's request that he provide defendant with medical insurance. Plaintiff indicates that he has never provided defendant with insurance and in fact defendant provided health coverage for both while she was employed as a professor. Plaintiff alleges that after he was stabbed, defendant cut off his insurance and he had to seek assistance in paying his hospital bill. Since that incident, plaintiff has purchased coverage through the Freelancer's Union.

Plaintiff also requests that the court deny defendant's application for counsel fees since instead of making a good faith effort to settle the matter, defendant filed the instant OSC making exorbitant financial demands and implying that tens of thousands of dollars in further litigation will be required. Plaintiff argues that given the short duration of the marriage, the simplicity of the parties' respective finances and the genuine property issue at state, defendant's counsel's estimate of future time and effort required for litigation is grossly inflated. Additionally, plaintiff asserts that defendant has sufficient resources to pay her own counsel fees if she insists on pursuing a litigation strategy.

Discussion

Maintenance

Pendente lite maintenance applications for actions commenced post October 2010 must be determined by the court employing the statutory formula set forth in DRL §236(B) (5-a). The formula requires the court to begin by determining the parties' gross income as reflected in their most recent federal tax returns, less FICA and city taxes (DRL §236 [B][a][c][1]; §240 [1-b][5][l,[vi][G], [H]). The court must then make two alternate initial calculations based on the payee's income and the payor's income up to an initial cap of $500,000 (DRL §236 [B][5-a][1][a], [b]; see also Khaira v Khaira, 93 AD2d 194, 197 [1 Dept 2012]). The lower of the results of these two calculations is the presumptive "guideline amount of temporary maintenance" (DRL §236 [B][5-a][c][1][c], [d]). Where the income of the payor exceeds the $500,000 income cap, "the court shall determine any additional guideline amount of temporary maintenance through consideration of [19] enumerated factors" (DRL §236 [B][5-a][e][1]). Thus, the court must consider whether the guideline amount, which is "the presumptive award," would be "unjust or inappropriate" and may adjust the presumptive award of temporary maintenance as it finds proper, based upon its consideration of 17 enumerated factors set forth in that section of the statute (id). However, pursuant to DRL §(B)(5-a)(g), when a party has defaulted and or the court is otherwise presented with insufficient evidence to determine gross income, the court shall order the temporary maintenance award based upon the needs of the payee or the standard of living of the parties prior to commencement of the divorce action, whichever is greater. Such orders may be retroactively modified upward without a showing of change in circumstances or upon a showing of newly discovered or obtained evidence.

In determining the income of the parties, the court must examine their gross income on their most recent federal income tax returns (see Healy v Healy, 51 AD3d 551, 552

[1 Dept 2008]). In recognition of the prospect that a party may not have fully reported his or her income on the tax return, the statute authorizes the court to look to the amount that "should have been or should be reported" (DRL §240[1-b][b][5][l]). Thus, the court is not bound by the amount that was, in fact, reported on the parties' income tax returns (id, see also Harrington v [*7]Harrington, 93 AD3 1092, 1093 [3 Dept 2012]; Relf v Relf, 197 AD2d 611 [2 Dept 1993] [court relied upon income twice than that reported on the return]; Marsh v Fieramusca, 150 Misc 2d 776, 781 [NY Fam Ct 1991]). This is particularly true where there is evidence in the record which specifically supports "a finding that the [defendant's] reported income on his tax return is suspect" (Matter of Westenberger v Westenberger, 23 AD3d 571 [2 Dept 2005]; see also Matter of Maharaj-Ellis v Laroche, 54 AD3d 677 [2 Dept 2008]; Matter of Graves v Smith, 284 AD3d 332,333 [2 Dept 2001]).

In the instant matter, plaintiff submitted a copy of his tax return for the year 2011 and indicated that he had not yet filed his 2012 return. The 2011 return shows an unadjusted income of $371,373.[FN12] The 2011 W-2 reflects $4,485.60 in social security taxes, $2,302.26 in medicare taxes and $5,838.71 in NYC taxes. Plaintiff's tax return for 2010 reflects gross income of $223,990. Plaintiff indicates in his affidavit in opposition to this motion that for 2012 he believes he earned approximately the same as he earned in the 2011. He denies earning $400,000 as alleged by defendant.

In the instant matter, although the court determine that plaintiff's unadjusted income for the purpose of performing maintenance calculations is $371,373 and not $400,000 as alleged by defendant, the court has no independent data to determine defendant's income. Defendant alleges that she is currently unemployed but acknowledges that she worked part time as a professor prior to and for at least a short period following the marriage. However, defendant does not disclose the salary earned either in her NWS, affidavit in support of her OSC, or by attaching any tax returns or pay stub(s) for any years that she worked. Defendant also states that as to the Ithaca NY property she owns, she is operating at a deficiency though she presents no proof of this assertion. Despite plaintiff's contention that the court should impute income to defendant, he attaches no independent corroboration of the numbers he asks the court to impute to her. While the court may find that income should be imputed to defendant, its imputation of income to a litigant must have some evidentiary basis and the income cannot be derived from thin air.

Since the court does not possess credible proof sufficient to determine defendant's income, the determination of maintenance must be made pursuant to DRL §236 (B)(5-a)(g). Herein, defendant alleges that her monthly expenses total $10,000. The court notes that this sum would mirror defendant's calculations for the presumptive amount of maintenance assuming plaintiff earned $400,000, the court took no deductions for FICA or local taxes and if the court considered that the defendant earned no income whatsoever. Plaintiff denies that the parties enjoyed a lavish lifestyle. The court does not credit defendant's representations as to her monthly expenses and notes that no independent documentation is provided. Without independent documentation, the court strongly believes that these figures are inflated.

The court therefore awards maintenance based upon what it finds to be defendant's reasonable needs. Defendant is awarded $5,000 per month in temporary maintenance and same shall be paid for a period of seven (7) months. The length of the temporary maintenance award is made in consideration of the duration of this marriage (see DRL §236 [B][5-a][b][7], [d]; Goncalves v Goncalves, 105 AD3d 901, 902 [2 Dept 2013]). The court finds this award is a just [*8]and appropriate amount. This award will allow defendant to provide for her reasonable needs while she reenters the job market. The court notes that the criminal record of defendant's arrest was sealed and defendant should now be able to resume employment as she had prior to and during this very brief marriage. The award of maintenance is retroactive to the original date of the application which in this case is January 18, 2013. Therefore, plaintiff's maintenance obligation is from January 2013 through and including July 2013 for a total maintenance award of $35,000. Said amount shall be paid in four (4) installment payments of $8,750 per month with the first payment due within fifteen (15) days of the date of service of a copy of this decision and order with notice of entry. The second installment is due on or by November 15, 2013; the third installment is due on or by December 2013; and the final installment is due on or by January 15, 2014. Plaintiff may pay this amount off sooner than the date stated herein. All payments shall be made payable directly to the defendant.

Counsel Fees

DRL §237 authorizes the courts to direct either spouse to pay counsel fees in order to enable the other spouse to carry on or defend the action as, in the court's discretion justice requires, having regard for the circumstance of the case and the respective parties (DeCabrera v Cabrera-Rosete, 70 NY2d 879 [1987]). The court has full discretion in awarding counsel fees, and it is warranted when there is a disparity in the financial circumstances of the parties (Prichep v Prichep, 52 AD3d 61 [2 Dept 2008]; Kaplan v Kaplan, 28 AD3d 523 [2 Dept 2006]). DRL §237, having been amended in October 2010, now provides: "[T]here shall be a 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."

In the instant proceeding, the husband is the monied spouse despite the court's inability to determine defendant's income as discussed in the maintenance section of this decision and order and thus some counsel fees are warranted as plaintiff has not rebutted the presumption. However, the amount of those fees are within the sound discretion of the court.

"[U]nlike a final award of interim 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, 95951 [2 Dept 2010]; see also Prichep v Prichep, supra at 65; Singer v Singer, 16 AD3d 666, 667 [2 Dept 2005]; Flach v Flach, 114 AD2d 929, 929 [2 Dept 1985]). However, "[a]n 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 the circumstances" (DiBlasi v DiBlasi, 48 AD3d 403 [2 Dept 2008]. Contrary to defendant's counsel's representation, this does not appear to be a complex case. The parties were married only seven (7) months prior to their separation. There are no children of the marriage and there is no evidence to suggest any are expected. There are no allegations that any real property was purchased by the parties. Each party appears to have earned their respective degrees prior to the marriage and there is no allegation that any marital pension rights may exist; and assuming there are pension rights at issue, those rights would be for an extremely short period of time and [*9]could easily be determined. There is nothing in this record that demonstrates why this case has not been settled or discovery completed so as to resolve the matter expeditiously at trial. Given the nature and circumstances of this matter, defendant is awarded $10,000 in counsel fees. Said fees shall be paid directly to Michael L. Macklowitz, Esq. within twenty (20) days of the date of service of a copy of this decision and order with notice of entry. Upon plaintiff's failure to pay the $10,000, the clerk of the court shall enter judgment against plaintiff on defendant's counsel's affirmation of default without further notice to plaintiff or his counsel

Accordingly, it is hereby ORDERED that defendant is awarded maintenance in the sum of $5,000 per month for a duration of seven (7) months. The court has determine this amount to total $35,000. Payment shall be made pursuant to this decision; and it is further

ORDERED that defendant is awarded $10,000 in interim counsel fees to be paid directly to Michael L. Macklowitz, Esq. within twenty (20) days of the date of this decision and order, as provided herein. Upon plaintiff's failure to pay, the clerk of the court shall enter judgment against plaintiff upon defendant's affirmation of default without further notice to plaintiff or his attorney.

ORDERED that any issue raised and not specifically addressed herein is denied.This constitutes the decision and order of the court.

E N T E R

HON. DELORES J. THOMAS, J.S.C.



Footnotes

Footnote 1:In her affidavit in support of the OSC, defendant states that one of the reasons for her current period of unemployment is because the adjunct teaching position she previously held is offered on a yearly cycle and she is unable to obtain a position now because it is in the middle of the cycle (see defendant's 12/18/12 aff., para 33).

Footnote 2:Defendant's Net Worth Statement ("NWS") shows expenses totaling $11,150 per month.

Footnote 3:This amount includes $300 for gas and oil, $100 in monthly repairs, $50 monthly for registration and license, $100 monthly for parking and tolls and an additional $550 monthly for public transportation.

Footnote 4:Defendant's NWS indicates a monthly expense of $750 for medical insurance.

Footnote 5:In her NWS defendant indicates that the Ithaca property has two units with rental income of $1,000 per month for the larger unit and $700 for the smaller one. Defendant further indicates that the smaller unit has been vacant for some time. Defendant says the property is operating at a deficiency since the mortgage is $1,250 per month and the upkeep is $250 monthly.

Footnote 6:Plaintiff's exhibit C contains an excerpt from a web blog dated December 5, 2012 which discusses defendant's successful Kickstarter campaign to raise $50,000 to help pay for the Butterflies project. According to the blog, $265,000 had already been raised to date. The blog also states that after the installation, ten butterflies will be sold for $100,000 each. While this blog posting is clearly not in evidentiary form, its contents certainly contradict defendant's contention that her career has been stalled by plaintiff's actions against her. What is not clear, however, is precisely what amount of income plaintiff can derive from the project at this time.

Footnote 7: The court notes that these sums total $63,000 as opposed to $65,000.

Footnote 8:This figure includes some annualized federal taxes with the regular non annualized amount deducted making the monthly amount paid $4,639.64

Footnote 9:Both plaintiff and defendant list automobile insurance and allegedly there is only one vehicle which is in defendant's possession.

Footnote 10:Plaintiff arrived at this figure by performing the following calculations:

a. Calculation A: 30% of Plaintiff's 2012 income ($326,578) minus 20% of Defendant's imputed income ($65,000) = $84,973

b. Calculation B: 40% of combined 2012 income ($391,578) minus Defendant's imputed income ($65,000) = $91,631.

The lesser of these figures is Calculation A. When $84,973 is divided by 12, the presumptive pendente lite maintenance figure is $7,081 per month.

Footnote 11:Plaintiff included photographs depicting some of the injuries he alleges were suffered as a result of domestic violence committed by defendant. He asserts that it was defendant's instability and violence towards him that precipitated the parties' separation.

Footnote 12:This reflected $158,776 as wages, salaries, etc. on line 7, $12 in taxable interest on line 8a and $212,585 as business income on line 12 of Form 1040.