L.P. v C.B.

[*1] L.P. v C.B. 2015 NY Slip Op 51006(U) Decided on June 26, 2015 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 June 26, 2015
Supreme Court, Kings County

L.P., Plaintiff,

against

C.B., Defendant.



xxx



Jason Advocate, Esq.

Attorney for Plaintiff

708 Third Avenue

New York, NY 10017

Polly Passonneau, Esq.

Attorney for the Defendant

20 Vessey Street

New York, NY 10007

Mindy Gress, Esq.

Attorney for the Child

44 Court Street, Suite 905

Brooklyn, NY 11201
Jeffrey S. Sunshine, J.

Introduction and Background

On February 5, 2015, the defendant ("husband") moved by order to show cause [motion sequence No.2] requesting the following relief: 1) awarding husband pendente lite spousal maintenance in the amount of $4,600.73 per month; 2) ordering plaintiff ("wife") to pay husband's interim counsel fees of $25,000; 3) granting husband access to the marital residence for the purpose of retrieving personal belongings; 4) ordering wife to provide an accounting of the rental income she receives from the property located on [redacted], Brooklyn, New York, from January 10, 2014 through the present; and 5) such other and further relief for the plaintiff as the Court may deem just, fair and equitable. On March 3, 2015 the wife cross-moved by order to show [motion sequence #3] seeking the following relief: 1) granting the wife direct child support in the amount of $1,615 per month; directing husband to pay a pro-rata share of the parties' unreimbursed medical expenses, extra curricular activities cost and private school tuition; 3) ordering that the martial vehicle be sold to a Honda dealership in Brooklyn; 4) directing that the husband pay plaintiff for the cost of his health insurance premiums; and 5) ordering husband to pay his pro rata share of the carrying costs of the marital residence, if the rental income used to pay such cost is included in wife's income in calculating child support.

The parties were married in November 2006. There is one unemancipated child of the marriage, born December 2006. The husband is fifty-one (51) years old, and the wife is forty-three years old. Both parties are in good health. As of July 7, 2014, the wife lives with the child in the marital home located on [redacted] in Brooklyn, NY and the husband is currently renting an apartment on [redacted] in Brooklyn, NY. The husband works as a Manager of Retirement Services for a religious organization, and the wife works as a compensation consultant.

The wife commenced the instant action for divorce with the filing a summons and verified complaint on January 10, 2014. Husband filed a verified answer on February 18, 2014. The request for judicial intervention was filed July 3, 2014.

On July 18, 2014, the wife moved by order to show cause for exclusive occupancy of the marital home and temporary sole, legal custody of the subject child. Pursuant to the order of this Court dated July 18, 2014, on consent, the wife was granted temporary exclusive use and occupancy of the marital home located on [redacted] in Brooklyn, NY and an interim parenting time schedule was established. Further, the wife agreed to provide the defendant with $5,000 on or before July 24, 2014 to assist him in moving out of the marital home.

On July 31 2014, the preliminary conference scheduled for that day was adjourned, on consent, and the husband was granted further parenting time, pursuant to a stipulation so-ordered by this Court, with the subject child. The parties also agreed upon times when defendant could go to the marital home to pick up certain personal items.

On August 12, 2014, this Court appointed an attorney for the child. The preliminary conference was held August 15, 2014. By stipulation dated October 31, 2014 on consent, so-ordered by this Court, the child custody hearing was adjourned to January 22, 2015. On February 9, 2015, this Court appointed Dr. Marvin J. Aronson to conduct a forensic evaluation of the wife, husband and subject child.

The husband brought an order to show cause for pendente lite relief on February 4, 2015 [motion sequence #2]. The wife cross-moved by order to show cause on February 27, 2015 [motion sequence #3]. On March 5, 2015, the husband filed an affidavit in opposition to the wife's cross-motion and in support of his motion. On March 9, 2015 the wife filed a reply affirmation.

The Court heard oral argument on the respective motions on March 9, 2015. At oral argument the parties' agreed to respective gross incomes for purposes of calculating pendente lite maintenance and child support. The agreed upon incomes were $214,221.00 for the wife and $106,875.53 for the husband, based upon the 2014 W-2s for both parties after deducting New York City taxes and FICA. After oral argument, the Court reserved decision of the instant motions.

Defendant's Contentions

In his order to show cause, the husband contends that the wife should be ordered to pay the pendente lite spousal support in the amount of $4,600.73 per month. He cites the disparity in income between the parties, along with rental income that the wife receives of approximately $2,150 per month from a separate apartment located in the marital home. The wife currently resides in the marital home with the parties' child, and the husband avers that the income she receives should be imputed to the plaintiff. Further, the husband indicates that despite vacating the marital home on consent, the wife brought an Order to Show Cause dated July 18, 2014 for exclusive use and occupancy of the marital home. The husband believes this motion was a waste of marital assets, because he alleges he was willing to sign a stipulation that would have settled the issue and he had moved out weeks prior to when the wife filed the motion.[FN1] Instead he contends, he was forced to reply to the motion, appear in court and pay his attorney to do so.

The husband argues that since the wife commenced the action for divorce and he voluntarily left the marital home he has experienced a "significant decline in his lifestyle." He states that during the marriage the parties lived a comfortable lifestyle in an expensive home and did not spare expenses when it came to restaurants or family vacations. Now the husband alleges that he is living paycheck to paycheck and does not live the comfortable, luxurious lifestyle he used to before he left the marital residence. He states that he does not have nearly the same work space in his new apartment as he once did and since the plaintiff has not allowed the defendant back into the marital home, he has had to purchase new [*2]furniture and clothing for himself. Further, the husband avers that he does not have access to laundry or to a car as part of his new living arrangement and has not enjoyed family vacation time with the child since leaving the marital residence in July 2014.

The husband avers that the wife has limited his access to the marital home, which has in turn caused him financial losses in both income and counsel fees. He states that in the seven months since he vacated the marital home, the wife has not given him any opportunity to personally retrieve any of his personal belongings. Instead, the husband indicates that he has had to work with his attorney and the wife's attorney to obtain a court order from this Court to work out a schedule for the retrieval of his personal belongings, which he states is both costly and inefficient. He avers that because he has not been able to retrieve any of his reference books for his work as an actuary his work product has suffered and as a result his income has decreased.

The husband requests $25,000 in counsel fees due partly to the disparity in income between the parties and partly due to the wife's actions in prolonging this action unnecessarily. The husband argues that the wife has used her position as the "monied spouse" to manipulate this action by filing unnecessary motions instead of initiating negotiations between the parties' attorneys that could have been more efficient. The husband indicates, after commencing the action, the wife has refused to maintain him on her health insurance unless he paid a $1,000 penalty. He contends that the health insurance issue, was ultimately resolved but only after a significant amount of time and money was spent for something that should have been dealt with according to the automatic orders set forth by DRL §236 B(2)(b).

The husband attaches his attorney's retainer agreement indicating that he paid $6,900 to his former attorney, Rhonda Weir, Esq., as well as $2,000 to the attorney for the child Mindy Gress, Esq., and finally $7,000 toward the cost of mediation. As of the instant motion, the husband states that he owes his current attorney $21,000 as of the date of oral argument on March 9, 2015.

The defendant husband also requests an accounting by the wife of the income she receives from the rental property on the first floor of the marital home, as the husband believes this income should be imputed to the wife. He also alleges that the wife may be renting the space below market value.

In his opposition to the wife's cross motion, the husband argues that the $300,000 cap utilized by the wife in calculating his child support obligation should be rejected and that the statutory cap of $141,000 be utilized in calculating child support.

The husband argues that he should not be responsible for payment of private school tuition. He indicates that he objects to the child attending a private school in Brooklyn, where he has been for the last five years, because it is beyond their means. Husband argues that if the child is to remain at this private school, that wife continue to solely pay and if necessary that the husband be ordered to only pay twenty-five percent (25%) of the tuition and other [*3]add-ons for the child, which he argues is more consistent with the parties' pro rata incomes.

The husband argues that the wife's request that he pay her for the health insurance premiums should be denied as she is the "monied spouse", and that he was "bullied" by the wife and her counsel into paying the prior year's fee. Further, he asks the Court to reject the wife's request to have the defendant contribute to the carrying costs of the home, because the wife is the monied-spouse earning double his income and the fact that she receives rental income, of $2,150 per month, from the separate apartment in the marital home. He also argues that he has his own rent to pay since he vacated the marital residence and that it would not be appropriate for him to contribute to the carrying costs on the marital home.

The husband argues that the Court should use the statutory cap for calculating his child support obligation. The husband also argues that the plaintiff misrepresents the child's expenses of $38,000 and does not account for how much the rental income is paying towards monthly expenses for shelter. Additionally, the husband claims the monthly expenses for the child total $1,448.12 per month or $17, 377.44 annually. Taking the husband's forty-percent (40%) share of that number is $579, which is much closer to the statutory amount of $799 than if it would be calculated at $225,000 as proposed by the wife.

Plaintiff's Contentions

In her cross-motion, wife argues that defendant should not receive any pendente lite spousal support, but if he does, he should receive a significantly lower amount than he asks for in his motion. Wife argues that, as the custodial parent, she is entitled to child support from the husband and believes that even if the husband is awarded spousal support, the amount will be negated by his child support obligation and statutory add-ons. The wife argues that the Court should deviate from the Temporary Maintenance Guidelines under DRL §236(B)(5-a)(e), by awarding the husband no maintenance. She avers that the husband earns in excess of the amount required to maintain the standard of living of the parties during the marriage. She argues that the defendant earns approximately $78,000 annually after taxes, which she believes should be more than enough to cover his legitimate expenses. She alleges that the husband has exaggerated his monthly expenses on his statement of net worth.

Additionally, the wife argues that the husband should not be awarded pendente lite maintenance due to his actions impacting her ability to earn income. The wife alleges that the husband released a highly confidential document on July 2, 2014, which resulted in the wife losing at least two clients and significant income. Finally, the wife argues that the husband is not entitled to spousal maintenance because he has access to a portion of a joint marital checking account that the parties divided prior to the commencement of the action, his share amounting to $120,000.

In response to the husband's request for the imputation of rental income to her, the wife asks that the Court order the Defendant to pay his pro-rata share of the carrying costs of the marital residence (33%).

The wife contends that pursuant to the Child Support Standards Act ("CSSA"), if the [*4]husband is not awarded temporary spousal support, he should be directed to pay the plaintiff $1,402.50 per month in basic child support and his pro rata share thirty-three percent (33%) of the child's add-on expenses.[FN2] She contends that if the husband is awarded temporary spousal support, that the husband's basic child support obligation should be increased to $1,615 and that he should pay thirty-eight percent (38%) of the child's add-on expenses. The wife argues that the husband should be ordered to pay his pro-rata share of the child's tuition at the school as part of add-on expenses for the child, which the wife indicates has been exclusively paid by her since the commencement of the action.[FN3]

In response to the husband's motion, the wife asks that the Court not allow the husband access to the marital residence pursuant to the stipulation so-ordered by this Court on July 18, 2014, which granted the wife exclusive use and occupancy. She argues that the husband has been granted access to the marital home multiple times since moving out, but continues to claim that he has left "essential items" in the marital home. She avers that the husband has been given ample opportunities to retrieve his personal belongings and that any remaining items should be subject to a final resolution of equitable distribution in the parties' divorce action.[FN4]

In response to the husband's request for documentation concerning the rental income that the parties' receive for the apartment in the marital residence, the wife argues that he already has this information and that it was provided as a part of her bank records that were turned over as part of the discovery process.

In response to the husband's request for interim counsel fees, the wife requests that the Court deny the application in its entirety. She believes that because the husband has access to $120,000 in his checking account, $90,000 of which was part of the pre-commencement distribution of the parties' joint checking account. She believes this money should be utilized by the husband rather than ordering the wife to pay his fees. She argues that she has incurred substantial counsel fees herself in litigating this action and that it has been the husband's actions that have prevented this action from moving forward by engaging in unnecessary motion practice. She cites the husband's behavior in continuously threatening to re-enter the marital home, faxing a highly confidential work document to a client's public fax machine publishing executive compensation figures to the client's work staff, not stipulating to any relief until the plaintiff brings a formal motion, allegedly spitting in her [*5]face in the hallway during a court appearance, requesting that counsel visit a large walk-in facility that ended up being empty, destroying evidence in counsel's office during a meeting and causing weekly issues with supervised visitation as reasons the husband's request for interim counsel fees should be denied. The wife also avers that the husband delayed in complying with financial discovery pursuant to the preliminary conference order, dated August 12, 2014. The wife avers that the husband did not produce his statement of net worth until January 21, 2015 and that his failure to do so caused further delays in the case and preventing the parties from conducting meaningful settlement talks.

The wife further asks that the Court order the marital vehicle, a 2004 Honda Accord, be sold to a Honda dealership, due to the costs of necessary repairs exceeding the current value of the vehicle.[FN5]

Lastly, the wife asks the Court to order the husband to reimburse the plaintiff for the $45 per month ($1,080 annually) penalty she incurs for keeping him on her health insurance, as she believes he should obtain his own insurance.

In her reply to the husband's opposition to her cross-motion, the wife contends that his pro-rata percentage is not twenty-five percent (25%) as he argues but that it is closer to thirty-five to thirty-eight percent (35-38%) based on the parties' 2014 incomes. The wife argues that based on the husband's 2014 W-2, which he provided in Court on March 3, 2015, the husband would be entitled to $1,796.95 in temporary maintenance pursuant to the guidelines.[FN6] The wife argues that the defendant should be ordered to pay one-half (50%) of the mortgage and taxes on the marital home which are not covered by the parties' rental income. She avers that the mortgage is $3,651.94 per month and the real estate taxes are $536.37 per month, resulting in a total cost of $4,188.31 per month. The wife admits that she collects $2,150 per month in rental income, leaving a deficiency of $2,038.31 per month. She requests that the Court order the husband to pay fifty percent (50%), or $1,019.15 per month as a marital debt. The wife also argues that because the rental income offsets both of the parties' monthly obligation toward the marital home that the rental income should not be included as part of her income for calculating any award of pendente lite maintenance and child support.

The wife requests that the Court utilize a combined income cap of $225,000 based on the factors set forth in DRL §240 (1-b)(F) (see Matter of Cassano v Cassano, 85 NY2d 649, 628 NYS2d 10 [1995]). She argues that the financial resources warrant an award of support beyond the $141,000 income cap as the parties' combined income totals approximately $320,000. She avers that this number does not take into account the money that the parties divided from their joint bank account prior to the commencement of this action totaling [*6]$120,000 for the husband and $90,000 for the wife.

Further the wife avers that the child's current expenses, which she avers are consistent with the standard of living the child would have enjoyed prior to the commencement of this action, exceed the amount of support that the $141,000 income cap would provide. Her statement of net worth indicates that the basic expenses for the child, not including add-on expenses, total $3,240 per month or $38,884 annually.[FN7] Additionally, she states that because she is solely responsible for the child's welfare, due to the husband's limited supervised visitation, she is responsible for paying for almost all of the child's expenses "twenty four hours a days, seven days a week." Finally, she avers that the difference between the parties' gross incomes is not substantially different once any award of temporary maintenance to the husband is taken into consideration.

The wife supports her argument to have defendant pay his pro rata share of the child's tuition, stating that the child has been enrolled at the same private school since he was three years old (he is now 8) and that during those five years the husband never objected to the child's enrollment in private school. She alleges that the husband is only objecting to private school now that he is being asked to contribute to the tuition that he objects. The wife avers that the parties' child thrives at the school and that the husband should be ordered to pay his pro rata share of the tuition which will be $37,300 for the 2015-2016 school year, due in May.

The wife avers that the husband should be ordered to pay for his own health insurance due to the $1,080 penalty policy enforced by her employer for family members on their insurance and the fact that he can afford to obtain his own health insurance rather than relying on the wife.

Regarding counsel fees, the wife argued that, after spousal support, the disparity in income will not be that significant. This, along with the fact that the husbands's own actions have caused numerous delays in the case.

Discussion

Pendente Lite Maintenance

For all actions commenced after October 12, 2010, courts are required to apply a statutory mathematical formula in determining pendente lite maintenance awards. (DRL §236B[5-a][c].) Pursuant to DRL §236B(5-a)(c), after the statutory formula is applied to the parties' income, the calculated amount is considered the presumptive award of temporary maintenance, unless a court finds that the presumptive award would be unjust or inappropriate based upon the seventeen (17) factors delineated in DRL §236B(5-a)(e)(1).

In determining income for the purposes of calculating temporary maintenance, the statute uses the definition of income as set forth in the Child Support Standards Act (CSSA). The CSSA guidelines are applied after the Court first determines a party's income as defined in DRL §240 [1-b](b)(5), specifically, gross income as should have been or should be reported in the most recent federal income tax return, less FICA, local taxes, and applicable statutory deductions (See DRL §240 [1-b](b)(5); Wallach v Wallach, 37 AD3d 707, 831 NYS2d 210 [2 Dept., 2007]).

In the case at bar, the parties stipulated to the following maintenance calculation on the record at the March 9, 2015 Court appearance.

I. ADJUSTED GROSS INCOME AS DEFINED BY THE CSSA:

Income Up to $543,000

1. Plaintiff$214,221

2. Defendant$106,875.53II. CALCULATIONS:

Income Up to $543,000

5. Plaintiff

$214,221

6. Defendant

$106,875.53

Basic Calculation

7. Calculation A

$42,891.19

30% of Payor's Income minus 20% of Payee's Income

8. Calculation B

$21,563.08

40% of Combined Income minus Payee's Income

9. Guideline Amount

$0

Where the guideline amount would reduce the Payor's Income below the self-support reserve ($15,890.00), the award is the Payor's income minus the self support reserve. If Line 11 equals Zero, there is no adjustment for low income.

Low Income Calculation (If Applicable)

10. Payor Income minus Guideline Amount

$0

[*7]11. Low Income Award

$0

III AWARD:

PAYOR

Plaintiff

12. Annual Amount

$21,563.08

11. Monthly Payment

$1,796.92

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

The plaintiff's pendente lite maintenance obligation is $1796.92 monthly ($21,563.08 annually.) The retroactive award is calculated from the date of the defendant's first application, February 4, 2015, and totals $7,187.68 ($1,796.92/month x 4 months [February 2015 through June 2015]). Retroactive sums due by reason of this award shall be paid, together with the monthly spousal support obligation, at the rate of $750 monthly until paid in full, with a credit for any temporary maintenance already made by check or other negotiable instrument, since February 4, 2015, the date of first application (see Domestic Relations Law § 236 [B][6][a]) (see Mosso v. Mosso, 84 AD3d 757, 924 N.Y.S.2d 394 [2 Dept.,2011]).

Pendente Lite Child Support

At oral argument on March 9, 2015, the parties, on consent on the record, agreed to accept the annual income amounts delineated in the wife's reply affirmation dated March 9, 2015. The wife reported annual income in the sum of $233,400.09 on her 2014 W-2. After subtracting FICA and local taxes, the wife's income is $214,221.92. Further, after subtracting the wife's pendente lite maintenance obligation ($21,563.08) the wife's income for the purposes of calculating pendente lite child support is $192,658.84. The husband reported annual income in the sum of $118,787.03 on his 2014 W-2. After subtracting FICA and local taxes, the husband's income is $106,875.53.

The statute multiplies the combined parental income figure, up to a cap of [*8]$141,000.00, 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 $141,000.00, "the court shall 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 add-ons 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]).

As such, the combined parental income for the purposes of calculating child support pendente lite shall be $299,533.45 ($192,658.84 + $106,875.53 = $299,534.37). 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] up to the $141,000.00 cap. Calculating child support on combined parental income up to the current statutory guideline cap of $141,000.00, the total annual child support obligation would be $23,970 ($141,000.00 x .17 = $23,970). Accordingly, defendant husband's pro rata child support obligation (35.68%) would be $8,552.50 annually and plaintiff wife's pro rata child support obligation (64.32%) would be $15,417.50.

However, where combined parental income exceeds $141,000.00 — the situation at issue in this case — the statute provides that "the court shall 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 this subdivision and/or the child support percentage" (Family Ct Act 413 [1] [c] [3]) (id. at 653). The "paragraph (f)" factors include the financial resources of the parents and child, the health of the child and any special needs, the standard of living the child would have had if the marriage had not ended, tax consequences, non-monetary contributions of the parents toward the child, the educational needs of the parents, the disparity in the parents' incomes, the needs of other nonparty children receiving support from one of the parents, extraordinary expenses incurred in exercising visitation and any other factors the court determines are relevant (see Matter of Cassano v Cassano, 85 NY2d 649, 628 NYS2d 10 [1995]).

Based on the clear standard of living established during the marriage, the expenses being paid for the child by the plaintiff, including the mortgage and real estate taxes on the marital home and the real dollar amounts attributed to the litigants after pendente lite maintenance is calculated, the Court uses its discretion to utilize a combined income cap above the statutory limit $141,000 to that of $299,533.45. Utilizing the agreed upon adjusted gross income amounts from the pendente lite maintenance calculation, minus the maintenance award, the plaintiff's 2014 income for the purposes of calculating pendente lite [*9]child support is $192,658.84 and the defendant's 2014 income remains $106,875.53.

Utilizing the combined parental income stated above for the purposes of calculating child support pendente lite remains $299,533.45 ($192,658.84 + $106,875.53 = $299,534.37). 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], which when calculated yields total child support of $50,920.69 ($299,534.37 x .17 = $50,920.84). Accordingly, the husband's pro rata share (35.68%) of child support would be $18,168.56 annually.

Temporary child support shall be retroactive to the date of first application (see DRL 236[B][7][a]; see also Mosso v. Mosso, 84 AD3d 757, 924 N.Y.S.2d 394 [2 Dept.,2011]; McLoughlin v. McLoughlin, 74 AD3d 911, 903 N.Y.S.2d 467 [2 Dept.,2010]; Purcell v. Purcell, 202 AD2d 487, 610 N.Y.S. 2s 805 [2 Dept.,1994]; Schiffer v. Schiffer, 21 AD3d 889, 800 N.Y.S.2d 752 [2 Dept.,2005]; Miklos v. Miklos, 39 AD3d 826, 835 N.Y.S.2d 330 [2 Dept.,2007]). The wife's application for pendente lite child support was made on February 27, 2015. Defendant's pendente lite child support obligation is $1,514.04 monthly. The retroactive award of pendente lite child support is $6,056.20 ($1,514.05 monthly x 4 months = $6,056.20). The parties shall be responsible for statutory child support add-ons, pendente lite, including, health insurance, unreimbursed medical expenses not covered by insurance, and co-pays as follows: 64.32% by the plaintiff and 35.68% by the defendant.

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), 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.

"An 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 [*10]financial circumstances of both parties together with all the other circumstances of the case, which may include the relative merit of the parties' positions'" (Gruppuso, 66 AD3d at 839, quoting DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881, 524 NYS2d 176 [1987]). " An appropriate award of attorney's fees should take into account the parties' ability to pay, the nature and extent of the services rendered, the complexity of the issues involved, and the reasonableness of the fees under all of the circumstances'" (DiBlasi v DiBlasi, 48 AD3d 403, 405, 852 NYS2d 195 [2d Dept 2008], lv denied 10 NY3d 716, 862 NYS2d 468 [2008], quoting Grumet v Grumet, 37 AD3d 534, 536, 829 NYS2d 682 [2d Dept 2007] [citations omitted]).

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

The Court may also consider imputed income in awarding counsel fees (see Popelaski v. Popelaski, 23 AD3d 735, 738, 803 N.Y.S.2d 108 [2 Dept., 2005]; Rocanello v. Rocanello, 254 AD2d 269, 269, 678 N.Y.S.2d 385 [2 Dept., 1998].) Additionally, "New York law gives this court 'considerable discretion to impute income to a parent where the parent receives money, goods, or services from a relative or friend.' DRL § 240(1-b)(b) (5)(iv)(D) . . ." (G.R.P. v. L.B.P., 36 Misc 3d 1217(A), 957 N.Y.S.2d 264 [Sup. Ct. 2012]).

DRL section 240(1-b)(b)(5)(iv) states that, "at the discretion of the court the court may attribute or impute income from, such other resources as may be available to the parent." In regards to counsel fees, however, DRL section 237(d) states that, "[i]n determining the appropriateness and necessity of fees, the court shall consider: (1) The nature of the marital property involved; (2) The difficulties, if any, in identifying the marital property; (3) The services rendered and an estimate of the time involved; and (4) The applicant's financial status."

"The court may also consider whether either party has engaged in conduct or taken positions resulting in a delay of the proceedings or unnecessary litigation (see Ciampa v. Ciampa, 47 AD3d at 748, 850 N.Y.S.2d 190; Timpone v. Timpone, 28 AD3d at 646, 813 N.Y.S.2d 752; Morrissey v. Morrissey, 259 AD2d at 473, 686 N.Y.S.2d 71; Walker v. Walker, 255 AD2d 375, 376, 680 N.Y.S.2d 114)." (Prichep v. Prichep, 52 AD3d 61, 65, 858 N.Y.S.2d 667 [2 Dept., 2008]).

In the case at bar, the defendant husband requests $25,000 in counsel fees. The [*11]husband's prior counsel was paid $9,000, and current counsel has been paid $14,000 and is owed an additional $24,000. His request for interim counsel fees is based upon the plaintiff being the monied spouse and his allegations that the plaintiff has unnecessarily prolonged this case with the filing of superfluous motions and actions as stated above.

While the plaintiff wife acknowledges she is the monied spouse, she avers that the defendant's own actions in delaying the proceedings of this case, including but not limited to his delay in turning over his 2014 W-2 for the purposes of calculating maintenance and child support. She also asserts that due to the volatility of the husband throughout the litigation, including but not limited to faxing the wife's confidential documents, destroying evidence in wife's counsel's office and spitting on her outside of the courtroom, she should not be responsible for his counsel fees.

A significant point of contention between the parties is the availability and amounts of pre-marital monies in the parties' bank accounts. Both parties establish that prior to the commencement of the divorce action, each party removed money from a joint bank account into personal bank accounts. As of oral argument on March 9, 2015, the plaintiff claimed to have access to approximately $30,000 from the pre-marital withdrawal and defendant claims to have access to $80,000 (though plaintiff disputes this amount and figures it at $120,000). Here, at oral argument the husband's attorney stated that she has received $15,000 from her client, her predecessor received $9,000 and that she is still owed $24,000. As of November 30, 2014, the wife's attorney has been paid $28,862.05 and is still owed an additional $20,020.01.[FN8]

While the purpose of counsel fees is to make sure that the monied spouse does not control by the power of the pocketbook or wallet, the court must realistically assess the available resources to each party as a result of the litigation (Scott M. v. Ilona M., 31 Misc 3d 353, 371, 915 N.Y.S.2d 834 [Sup. Ct. 2011]). While there are some funds in the husband's possession, the wife is in a far better financial position than defendant (see Prichep v. Prichep, 52 AD3d 61, 66, 858 N.Y.S.2d 667 [2d Dept.2008]), and he should not have to deplete his assets in order to have legal representation comparable to that of the wife (see Lennox v. Weberman 109 AD3d 703, 704, 974 NYS2d 3 [1d Dept. 2013]). After interim maintenance and child support awards are calculated, the wife still earns more income than the husband. However, the Court acknowledges that the wife should not have to pay for the husband's volatility, which is clear and not disputed. It is also undisputed that the husband has received a greater amount of the marital assets than the wife. The Court rejects the husband's contention that the application for exclusive use and occupancy brought by the wife was unnecessary. Given the husband's increasingly volatile acts during this litigation it was certainly appropriate to seek formal judicial relief and not rely on a good faith attempt to resolve the issue prior to seeking judicial intervention. Inasmuch as the husband has a [*12]greater share of the liquid assets and the wife is paying for most of the child's expenses, while maintaining the marital residence and a greater share of the tuition, taking all of the factors into consideration (together with payments already made), the husband is awarded $5,000 in pendente lite counsel fees to be paid within forty-five (45) days of the date of this decision and order.

The Marital Home

The defendant husband argues that the rental income received by the wife should be included in her income. The plaintiff wife argues that she is using the rental income to assist her in meeting the overhead expenses of the marital home including the mortgage. There is no " double dip" for shelter in as much as the wife still must pay even with the rental income a total of $2,150 per month for shelter for her and the child. The defendant husband is not paying towards the overhead of the marital residence at this time and he certainly is not paying a double shelter amount under the circumstances of this particular case. Each party, with their income, must provide for their own shelter. The wife, by paying the amount for mortgage and taxes while applying the rental income to reduce overhead, still leaves the wife with the financial obligation to provide a roof over her head for her and the child. If not in the home, she certainly would have the same financial burden renting an apartment elsewhere. At this juncture the issue of any credit for reducing the mortgage principal is an issue for trial relating to equitable distribution (see Judge v. Judge 48 AD3d 424, 425, 851 N.Y.S.2d 639 [2d Dept. 2008]).

Furthermore, the husband's request for access to the marital home is denied given the numerous opportunities the husband has had to obtain his personalties from the marital home and his continued volatility towards the wife. As discussed on the record at the March 9, 2015 Court appearance, if there is specific personalty sought by the husband remaining in the marital home, the husband is to provide plaintiff with a detailed list of said belongings within 10 days of receipt of this decision. The wife is then to box those specified belongings and the husband shall send a designee to retrieve the items at an agreed upon time no later than July 15, 2015. The child shall not be present when the items are retrieved.

Lastly, plaintiff is to provide updated records of the rental income she receives from the first-floor apartment in the marital home to defendant, from commencement to present.

School Tuition

The child has been enrolled in said school for the last five years, and the husband has agreed to and participated with the choice of school, up until the commencement of this action. Therefore, the husband is directed to pay his pro rata share (35.68%) of the child's tuition at the school, subject to reallocation at trial. Further, the Court indicated at oral argument that it will not consider removing a child from school in the middle of a school year or in the middle of litigation. Clearly, to uproot this child from his present educational setting at the same time his parents are involved in a contentious divorce proceeding would not be in the best interests of the child (see Amos-Richburg v. Richburg 94 AD3d 1112, 1114, 942 [*13]N.Y.S.2d 613 [2d Dept. 2012]).

Marital Vehicle

The Court orders the marital vehicle to be sold, as agreed to by the parties at oral argument on March 9, 2015, and the proceeds of the sale to be held in escrow by the wife's attorney until determination of equitable distribution at trial.

Conclusion

Motion sequence number 2 is granted regarding pendente lite maintenance and interim counsel fees. Motion sequence number 3 is granted regarding basic child support. All other issues not specifically granted or denied herein are reserved for the trial court. The matter is adjourned until the previously selected date of July 7, 2015 at 9:30 a.m.

The foregoing constitutes the decision and order of this court.

ENTER:

JEFFREY S. SUNSHINE

J. S. C.

Footnotes

Footnote 1:Husband claims to have voluntarily vacated the home as a result of mediation on July 7, 2014.

Footnote 2:This calculation proffered by the wife utilizes the parties' income from their 2014 tax returns and cap of $300,000 on combined parental income, which the plaintiff argues is appropriate considering the parties' income, lifestyle and the needs of the child. Add-on expenses include child-care costs, unreimbursed medical expenses, private school tuition, extracurricular activities and camp.

Footnote 3:Plaintiff attaches a tuition invoice and proof of payment.

Footnote 4:Plaintiff indicates that the defendant was granted access to the marital home on the following dates: July 13, 2014, August 1, 2014, August 9, 2014, and August 10, 2014.

Footnote 5:This issue was reserved for the trial court at oral argument on March 9, 2015.

Footnote 6:Wife's 2014 Gross: $233,400.09 - FICA and NYC taxes = adjusted gross of $214,221.92