R.I. v T.I.

[*1] R.I. v T.I. 2016 NY Slip Op 50664(U) Decided on April 22, 2016 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 April 22, 2016
Supreme Court, Kings County

R.I., Plaintiff,

against

T.I., Defendant.



REDACTED



Elliot Green, Esq.

Attorney for Plaintiff

32 Court Street, Suite 404

Brooklyn, New York 11201

Miriam Zakarin, Esq.

Attorney for Defendant

305 Broadway, 9th Floor

New York, New York 10007
Jeffrey S. Sunshine, J.

Introduction and Background

On March 9, 2016, the defendant moved by emergency order to show cause [motion sequence #1] for the following relief: a) awarding the defendant sole legal and physical custody of the infant child of the marriage, who was born in October of 2015; b) directing the plaintiff be made to pay defendant basic child support for the subject child in accordance with the Child Support Standards Act, pendente lite; c) directing the plaintiff to maintain health insurance for the defendant and the subject child; d) directing the plaintiff to pay for child care and related costs, and unreimbursed medical expenses for the subject child; e) directing that the Kings County Family Court action be consolidated with this action to the Kings County Supreme Court; f) directing that the plaintiff pay to the defendant spousal maintenance that are currently in arrears in the amount of $12,500, and calculate future payments of pendente lite spousal support as per the NYS Court calculator; g) directing the plaintiff to pay to Treuhaft and Zakarin, LLP the sum of $10,000 as and for defendant's pendente lite counsel fees, without prejudice to seek additional fees as needed; and h) for such other and further relief for the defendant as this Court may deem just and proper.

The defendant appeared on March 9, 2016 as a result of filing an ex parte application and pursuant to 22NYCRR 202.7(a), before the Hon. Eric I. Prus, sitting as the Emergency Judge in this County that day, who issued an order directing the plaintiff to provide the defendant and subject child with health insurance, and a lump sum payment of $7,500 towards spousal support arrears pursuant to the Kings County Family Court order of spousal support and to appear before the undersigned, the assigned judge, on March 22, 2016.[FN1]

On March 22, 2016, the plaintiff filed a cross-motion [motion sequence #2] requesting the following relief: a) ordering the defendant and subject child to submit to a DNA test; b) modifying the order of spousal support issued by the Family Court in light of the fact that the defendant is a physician assistant and the Court should impute to the defendant $100,000 per year in income; and c) granting such other and further relief that this Court deems just and proper.

On the March 22, 2016 return date, this Court requested a Court Ordered Investigation by the Administration of Children Services (A.C.S.) and issued the following order:

"Plaintiff shall procure health insurance for the wife and child, [redacted] by Friday March 25, 2016. Defendant shall cooperate and provide all necessary documents and information to health insurance provider to facilitate procurement of the health insurance policy.

Plaintiff shall serve amended net worth statement by e-mail on defendant's counsel [*2]by March 25, 2016. Defendant shall reply to plaintiff's cross-motion by April 1, 2016. Plaintiff shall reply by April 6, 2016. Parties to appear for oral argument on April 8, 2016 at 2:15 p.m.

Defendant to pay temporary child support in the amount of $474 per week. First payment to begin on March 25, 2016, on Friday of each week pending determination of instant applications or future order of the Court. All Family Court orders remain in effect.

The temporary support order was issued without prejudice to oral argument on the return date of April 8, 2016.

On March 29, 2016, plaintiff's attorney filed an affirmation regarding the statement of net worth missing a notary stamp and annexed a copy of the plaintiff's 2013, 2014 and 2015 tax returns.

On April 1, 2016, defendant filed an affidavit in reply to plaintiff's opposition to her order to show cause and in opposition to plaintiff's cross-motion. On April 6, 2016 the plaintiff filed an affidavit in further opposition to defendant's order to show cause and in further support of his cross-motion.

On the return date, April 8, 2016, at oral argument, defendant's counsel represented to the Court, on the record, that the child support ordered by this Court arrived at counsel's office "a week late" and it was "made out to the baby." After a brief bench conference, defendant's counsel provided, for her adversary and the Court, an updated bill for her hours and heard oral argument.

The parties were married on March 27, 2014 in New York and there is one child as a result of this marriage, to wit: born in October 2015. This action for divorce was commenced on December 23, 2015, when plaintiff filed a summons and complaint with the office of the County Clerk, Kings County. There is a two-year final full stay-away Criminal Court order of protection in place against the plaintiff in favor of the defendant which is in effect until July 30, 2017. The plaintiff is a physician.

Defendant's Contentions

In her order to show cause, the defendant argues that the plaintiff locked her out of the marital residence while she was pregnant and when she was able to return to the home with police, the plaintiff had moved everything out of the apartment and terminated the lease. She avers that she was not able to retrieve any of her personal belongings and that the plaintiff then moved in with his mother.

She contends that she is a stay at home mother nursing the parties' infant child, living with family members since being excluded from the marital residence and has been unable to afford an apartment of her own. She alleges her only employment as a physician's assistant had been working for the plaintiff.

The defendant argues that she has "been the only parent in my son's life since the very beginning." She avers that the plaintiff has refused to see the child and has never met him or paid any support towards the needs of "our" son. She asserts that during the [*3]marriage and while she was pregnant with their son, "plaintiff was physically violent towards me in an attempt to force a miscarriage of our child and demanded to have an abortion." The defendant annexes a support orders from the Kings County Family Court, dated September 8, 2015, which provided for temporary spousal support in the amount of $2,500 per month, which defendant asserts is in arrears.

The defendant avers that the plaintiff, who is a medical doctor, earns upwards of $500,000 per year and should be made to support both her and their child. She alleges that the plaintiff is employed both by a private hospital and has his own private practice. The defendant indicates that she would like to find employment, but cannot afford daycare and that she has only worked for the plaintiff as a "physician's assistant" and has no other work experience since graduation.

The defendant asks for spousal support, child support and counsel fees, pendente lite, as she alleges the plaintiff is the monied spouse and she and their child have no income.

Plaintiff's Contentions

The plaintiff believes that he may not be the father of the subject child and that the Court should order a DNA test in light of these concerns. He asserts that "as a physician, I was working in the hospital for twelve (12) hours a day (sometimes more) for five (5) - six (6) days a week, at which time I was not present in the house, while she was at home, and the main concern is that defendant had a boyfriend that she was with for ten (10) years before defendant was with [him]." The plaintiff alleges that "defendant suffers from multiple mental diseases" and that she "would leave the marital residence late in the evening and return home between one (1) a.m. and two (2) a.m.

Plaintiff alleges that the defendant is a physician assistant with the ability to earn "a minimum of 100k per year," and that the Court should impute that amount to the defendant "in light of being a physician's assistant and refusing to work." He states that when he met the defendant "she took her boards three (3) times and failed each time." Plaintiff argues that he "assisted the defendant in studying for her boards and she was able to pass on her fifth (5th) attempt," and that this was critical because "you are only able to take the physician assistant exam six (6) times, and she had only one year left to pass the exam, otherwise defendant's degree would be worthless and defendant would have to return to physician assistant school."

The plaintiff avers that he does not have health insurance and thus "should not be compelled to provide health insurance when the defendant and child are covered by Fidelis."

The plaintiff contends that the Family Court order of support should be modified in light of the plaintiff's "ability to earn a minimum of $100,000 per year." He also argues that the defendant's application for counsel fees should be denied because it is defective in that "the application does not comply with Kings County Uniform Matrimonial Rules which state the following: 17a. All applications and responses thereto for pendente lite [*4]maintenance shall include a worksheet and calculation pursuant to DRL §236 (B) (5) as well as an affidavit of net worth. Any request for deviation must articulate which of the nineteen (19) factors relied upon and the reason for the deviation request.'" He also argues that "no previous application has been made for the relief sought herein, with the exception of an oral application that was made in Family Court."

Defendant's Reply

Defendant argues that the plaintiff "has been on a campaign to smear [her] name" and "has not had a boyfriend for ten (10) years as the plaintiff alleged." She avers that she has "only had relations with my husband in my lifetime and he is fully aware of this."

Defendant contends that plaintiff and his attorney asked the Family Court for a DNA test and the support magistrate denied his request. She argues that she is "confused as to how plaintiff can say he wants sole legal custody of our child because I am mentally disturbed' while at the same time plaintiff denies that our son is his child." She avers that "on several occasions I brought the child to Court and when I offered for the plaintiff to see the child he refused."

Defendant further alleges that the plaintiff "has been denying [her] a GET (Jewish divorce), but during the bet din [sic] (Jewish Religious Court) proceedings in front of the Rabbis he openly admitted that he knew he was the father and that [she] was chaste."

The defendant avers that she stays at home with the parties' five (5) month-old son who is a nursing baby. She contends that she has never earned $100,000 per year and that amount should not be imputed to her. She states that she does want to find a full-time job, but needs financial support to find daycare for their son. She argues that during her pregnancy she attempted to find employment, but that plaintiff used his connections at the hospital to have the offer and position terminated.

The defendant asserts that she graduated from physician's assistant school in 2012, prior to the parties' marriage. She alleges that there was an electronic issue with retrieval of her scores on the first few exams, and passed the exam while she was working for plaintiff and "tending to my husband's every need (cooking, cleaning, laundry, etc.)." She avers that her parents supported her throughout all of her studies and examinations and loaned her money to pay the costs of her schooling and licensure. She contends that the plaintiff would "verbally, mentally, and physically abuse and discourage" her. The defendant refutes the plaintiff's allegations that she suffers from any "mental disease."

The defendant argues that during their marriage, "we traveled often and led a fairly affluent life style." She avers that the plaintiff has made "several contradictory statements regarding his income." She contends that in Family Court he stated that he earned over $215,000 from his employment at the hospital and an additional $12,500 monthly from his private medical practice, but failed to include additional earnings from employment with out-of-state and upstate hospitals. She alleges that when they appeared before Judge Prus, the plaintiff claimed he earned only $160,000.00 per year and that in this Court the plaintiff claims that he had lost his job with the hospital and only had his private practice.

The defendant also argues that the plaintiff is seeking to obtain health insurance, pursuant to the Court's order dated March 22, 2016, for the defendant and subject child that "does not cover most of our basic needs and is prohibitively expensive." She contends that the plaintiff "forged" her signature on the application for the health insurance and that he was sending her the bill.

The defendant argues that the plaintiff has consistently been in violation of this Court's orders and, as the monied spouse, he should be ordered to pay her legal fees, pendente lite, to ensure that she can establish a stable future for the parties' child.

Plaintiff's Reply

The plaintiff contends that he purchased the "United Oxford Health Care Silver Plan" for the defendant and the child and that he is "willing to pay the expenses." He avers that he "misunderstood the Court's order" in sending the child support payment to his lawyer's office rather than defendant's counsel's office.

The plaintiff alleges that the defendant had misrepresented to him that she was a physician's assistant prior to their marriage and that she had failed her previous exams due to low scores. He contends that she would "act irrationally" while studying and it was only after he offered to help her study and pay for the exams and a prep course that she was able to pass.

The plaintiff is seeking a DNA test to see if he is in fact the father of the subject child, and would seek full custody if he is in fact the father, due to the defendant's "mental illness." The plaintiff would not however seek any support from the defendant and "will be able to provide superior care for the child." Defendant annexes to his reply the defendant's medical records as proof of her "mental illness" and the medications she has been prescribed. He contends that the defendant's allegations that plaintiff was "beating" the defendant are "absolutely false." He argues that the defendant is the "violent one in the relationship," that during one incident she ended up "almost butchering" the plaintiff with a knife, though the police were not called.

The plaintiff avers that the defendant's claims that he is "avoiding paying the support that was ordered" are "absolutely false." Plaintiff annexes alleged receipts that "defendant had the payments for the month of December 2015 and January 2016 cashed on January 8th of 2016," and annexes alleged proof of those payments. He contends that the only payment he did not make was for the month of February, 2016, for which he explains that the "defendant was attempting to avoid service of the summons and complaint and [he] was not going to send a payment to address that defendant was claiming that defendant was not residing at." He contends that defendant's claims that she had "no place to live" were false, and that she was "living with her parents all this time," and was cashing the checks for support that he had provided.

Regarding the defendant's "affluent life style" claims, the plaintiff alleges that the parties' only ever went on "one vacation and that was the honeymoon." He annexes as an exhibit the annual statement for traveling for that year as proof that the defendant's [*5]objective was to "mislead the Court."

The plaintiff alleges that the defendant "did not even call [him] for a Brit Mila [sic] (circumcision ritual)," and "named him as defendant desired and gave the child defendant last name." He avers that it was not until thirteen (13) days after the child had been born that he was informed by a friend of the birth and the Brit Mila [sic]. He does not refute the assertion that he has never seen the child.

Oral Argument

Defendant's counsel argued that the plaintiff's possession and use of defendant's medical records in his reply was in violation of her privacy.

In addressing the amount of arrears, defendant's counsel clarified that she believes that the alleged amount is in fact five thousand ($5,000.00) based on the amount that was awarded by the Family Court. During the Court appearance, defendant's counsel acknowledged that the plaintiff did provide a check for $2,300.00, which she contends was ordered to be provided to plaintiff, by this Court, a week earlier. Defendant's counsel asked that the plaintiff provide health insurance for her client and the parties' child and that he pay the bill without having access to her personal information, inasmuch as the plaintiff had attached her private medical records to the reply claiming he had them because he was her physician.

Defendant's counsel also reaffirmed her client's desire to have temporary full and sole legal custody of the subject child.

Plaintiff's counsel indicated to the Court that his client required certain specific information from the defendant in order to have a health insurance policy put into effect. He also contends that the arrearage on the spousal support from Family Court is $0.00 due to a defect in the modification of the temporary order.

Plaintiff's counsel argued it was proper for his client to have had access to her medical records because he was the defendant's treating physician as of March 2015. Defendant denies this assertion.

This Court rendered an oral decision, on the record, on April 8, 2016. This written decision and order herein vacates and recalls that oral decision.

Discussion

Matrimonial litigation by its very nature is sometimes contentious, and sometimes people take positions which, quite frankly, are not made with the clearest of minds, and are driven, sometimes by emotion, and not by rationality. Other times people make decisions based upon the exercise of power or the attempt to have power over someone else.

After considering the applications before the Court and hearing the oral argument, the Court is concerned that it appears the plaintiff's goal may be one of power and control through economic and emotional coercion. No doubt reasonable minds can differ. People can have different views as to the outcome of potential litigation, but when Court orders are systematically ignored by the plaintiff, such as orders of the Family Court; orders of [*6]Judge Prus; support checks are made out to a five-month-old child's name; checks sent late to different addresses or individuals than directed in open court even after hearing the instructions on payment methodologies, the Court becomes concerned.

There are far more than enough resources here for the plaintiff, a physician who earned $406,160.00 in 2015 and is clearly the monied spouse, to meet his obligations in a timely manner. It is the role of Courts in society to make sure that a power imbalance such as this does not happen. There should never have been any arrears in Court ordered support, nor should a support check ever be made out to a five (5) month-old child. The plaintiff does not refute defendant's allegations that she returned to find the locks on the marital home had been changed.

The plaintiff claims that the Court should impute $100,000.00 per year in income to the defendant. There is no basis in plaintiff's papers for a deviation under the maintenance guidelines statute (See DRL 236(B)(5-a)) other than the request for imputation. Plaintiff's requests an imputation of income, which is made at the same time he disparages, in writing, the defendant's ability to pass the certification exam, and recited what he says are her prior failing scores which did not allow her to become certified as a physician's assistant for quite some time listing the number of times she failed the certification exam. It is also undisputed that defendant's sole employment history as a physician's assistant was working for the plaintiff. Additionally plaintiff, in his sworn affidavit of net worth dated March 24, 2016, indicated that his wife's health is "mentally disturbed."

If a party argues there should be an imputation of income, and at the same time goes out of their way to denigrate the abilities of the other party, the Court is concerned that his goal may be to degrade her - or does he truly believe with a five (5) month old to care for and the inability to obtain employment, that the Court has any basis to impute income, especially after denigrating her abilities?

It is also of concern to the Court that the plaintiff wishes to have a paternity test, because he believes that the child may not be his, and takes the position that the plaintiff wants to have full custody, and only full custody. As revealed in the report of the Administration for Children's Services, "... he wants 100% custody of the child, or nothing at all." The plaintiff at oral argument remained silent and did not refute that statement. Furthermore, the plaintiff in his verified complaint, filed and sworn to on December 21, 2015, states on line 5: "There is one child of this marriage and no other child is expected," naming the subject child.[FN2]

Significantly, the plaintiff does not request the paternity test until the filing of his cross-motion, dated March 18, 2016, in which he does not seek visitation.

The plaintiff also attached copies of the defendant's medical records to his reply papers. The Court has concerns about the propriety of utilizing medical records obtained [*7](as he claims) in the position of being her physician (which defendant refutes). Even if the Court were to adopt plaintiff's position that these were records he had from when he was her physician, the privilege is not waived.

The Court is concerned if these are the goals of the plaintiff: to attack her intellectual ability; to attack her mental status; to attack whether or not she's the mother of the child after asserting in a verified complaint "There is one child of this marriage and no other child is expected," naming the subject child [FN3] ; to assert that if he does not get 100% of custody he wants nothing to do with the child; to utilize her medical records; to assert an imputation of income where there is a five-month old child and her only employment history is with the plaintiff; to delay payments of court-ordered support to the extent of making the support check payable to the child. Reasonable people can disagree, but the Court must examine and make clear that a power imbalance cannot be tolerated.

Imputation of Income

The Court, at this juncture, declines to impute income to the defendant pendente lite, based upon many of the unrefuted allegations of the exercise of control by the plaintiff, the age of this child, and the employment history of this defendant.[FN4] The Court is very concerned about the confidentiality and privacy of this defendant, especially where her husband, who claims to be her former physician, and as her former physician attaches her medical records that he obtained in the capacity as her physician. The allegation that plaintiff interfered with the defendant's ability to obtain employment is also of concern.

Parties' Income

During oral argument the Court inquired as to plaintiff's gross income, FICA, and New York City taxes from 2015. Plaintiff did provide his 2015 tax return and provided W-2 documents. Plaintiff's counsel stated, on the record, that the plaintiff's income was $406,160.00 as represented on his 2015 tax return. Counsel also indicated that for 2015 the plaintiff's FICA was $9,284.38 and New York City taxes were $13,841.00 for a combined credit of $23,125.38. For temporary maintenance purposes, the plaintiff's [*8]income is $383,034.62. At this juncture the Court does not impute income to the defendant, therefore her income for the purposes of calculating temporary maintenance is $0.00.

Maintenance

Notwithstanding the representations made by both counsel on the record on April 8, 2016 that this action is governed by the prior maintenance guidelines statute (DRL 236(B)(5-a), which was effective October 13, 2010 to October 24, 2015, the Court subsequently discovered that this divorce action was commenced on December 23, 2015, and as such the new temporary maintenance guidelines control (DRL §236(B)(5-a). While the new permanent maintenance guidelines are effective only for cases commenced on or after January 25, 2016, the new temporary maintenance guidelines were adopted for cases commenced on or after October 26, 2015. In as much as this action was commenced on December 23, 2015, the new maintenance guidelines for temporary maintenance applies. (See DRL §236(B)(5-a)). Therefore the correct calculation on a cap for maintenance would be 175,000.00 subject to any deviation either upward or downward pursuant to the factors enunciated in DRL 236(B)(5)(h)(1)(a-m). There were no factors enunciated in movant's papers or during oral argument to deviate above the $175,000.00 cap. (See (DRL 236(B)(5)(h)(1)(a-m)). It is the responsibility of the parties to put forth any basis for a deviation either upwards or downwards.

Utilizing the parties' income as stated above ($383,034.62 for plaintiff [FN5] and $0.00 for defendant pursuant to her statement of net worth) and the new temporary maintenance guidelines, the calculation provides that the plaintiff pay maintenance of $35,600.00 per year and $2,966.67 per month, the lesser of the two maintenance amounts resulting from the two calculations.[FN6] This amount shall be deductible to the plaintiff for income tax purposes and declared as income to the defendant for purposes of income tax to the extent permitted by statute. The parties disagree as to the current amount of support arrears given the payments made in open Court and as such the Court will schedule a hearing to determine the amount at the next Court appearance on April 25, 2016.

Child Support

The amount of child support in this particular case would be calculated on the $143,000.00 cap. The defendant has not provided any basis for the Court, under Cassano, at this juncture, to exceed the $143,000.00 cap. (See Cassano v. Cassano, 85 NY2d 649, 651 N.E.2d 878 [2d Dept., 1995].)[FN7]

Adjusting the plaintiff's income to take into account this Court's pendente lite maintenance award, the plaintiff's income for the purposes of child support is $347,434.62 ($383,034.62- $35,600.00 = $347,434.62). (See DRL §250 (1-b) (5) (vii) (C).

In order to determine whether this Court's pendente lite maintenance award is income to the defendant for the purposes of calculating child support, the Court looks to the commencement date of the action. On October 26, 2015, the Child Support Standards Act (DRL §240(1-b)(5)(iii)) was amended, effective January 26, 2016, to provide that in a calculation of child support in Family and Supreme Court, maintenance awards were to be considered income to the payee spouse for the calculation. In as much as that statute became effective on January 26, 2016 and this action was commenced on December 23, 2015, it is not applicable to this action. As such, the Court must look to the controlling law at the time of commencement. Thus, the applicable law in the Second Judicial Department this Court must apply is that articulated by the Appellate Division, Second Department in Lee v. Lee (18 AD3d 508, 795 N.Y.S.2d 283 [2d Dept., 2005]).

According to Lee v. Lee, this Court's pendente lite maintenance award made concurrently with the calculation of child support is not income to the wife for the purposes of calculating child support. If there is no prior order in existence and, therefore, the monies were not reportable in the most recent tax year it is not counted as income (see Lee v. Lee, 18 AD3d 508, 795 N.Y.S.2d 283 [2d Dept.,2005] "The court also erred in considering the maintenance to be received by the wife as her income for purposes of performing the CSSA calculations [citations omitted]."; see also Krukenkamp v. Krukenkamp, 54 AD3d 345, 862 N.Y.S.2d 571 [2d Dept., 2008] "The Child Support Standards Act requires the court to establish the parties' basic child support obligation as a function of the "gross (total) income" that is, or should have been, reflected on the party's most recently filed income tax return [citation omitted]. Since, ..., the total income reported on the mother's most recently filed tax return included the maintenance payments she had received from the father that year, ... was improperly excluded from her income for the purpose of calculating her child support obligation [citations omitted]"). Thus, the $35,600.00 pendente lite maintenance award made by this Court is not considered income to the defendant for the purposes of calculating child support.

However, this is not the first order of pendente lite spousal support between these parties. There is a prior Court order of spousal support from Kings County Family Court, [*9]dated September 8, 2015, awarding the defendant $2,500.00 per month. While the plaintiff submits his 2015 tax return indicating that he had taken a $9,000 deduction for "alimony paid," the plaintiff neglects to provide further proof of any of these payments for 2015 in the form of copies of checks or SCU statements. During oral argument, the plaintiff provided the defendant a check for spousal support arrears in the amount of $2,300.00, claiming that was the remaining amount owed in arrears, which the defendant disputes. Although the plaintiff deducted $9,000 for spousal support on his tax return in 2015, due to the plaintiff's failure to provide adequate proof of spousal support payments in 2015, that amount is not to be credited as income without prejudice to the plaintiff.[FN8] Thus, for the purposes of calculating child support at this time, the defendant's income is $0.00 and the parties' combined income is $347,434.62. Therefore, plaintiff's adjusted income for the purposes of child support: $383,034.62 - $35,600.00 = $347,434.62. Defendant's adjusted income for the purposes of child support: $0.00.

At seventeen percent (17%), the total child support obligation would be $24,310.00 ($143,000 x .17 = $24,310.00). The child support obligation for plaintiff would be $24,310.00 annually and $2,025.83 monthly. Thus the Court orders a temporary maintenance award of $2,966.67 monthly, and a monthly award of child support of $2,025.83 to be paid by the plaintiff to the defendant.

The Court further directs that the payment shall be made through the Support Collection Unit (SCU). The plaintiff shall forward to the defendant's counsel, by certified mail, payments to be received no later than the first of each month, except this month, when they shall be made payable in two installments, one on May 1st and the second on May 15th, and adjusted accordingly until such time as the SCU begins making deductions. There shall be a credit for any payments made or deducted by SCU under the spousal support order. This order is retroactive to the date of first application on this order to show cause, March 9, 2016.

The plaintiff shall receive a credit for any payments made between March 9, 2016 and the date of entry of this order towards maintenance and child support to assure there is not a double payment. The Court will hold in abeyance any further issue of arrears until the preliminary conference, at which time each side shall submit an accounting, in affidavit form with proof attached, as to how they arrived at their calculations and obtained an updated statement from the Support Collection Unit.

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 (hereinafter "DRL") § 237(a), amended in 2010 (effective October 12, 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 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 N.Y.S.2d 234 [2 Dept., 2008], citing O'Shea v. O'Shea, 93 NY2d 187, 193, 689 N.Y.S.2d 8 [1999]; Wald v. Wald, 44 AD3d 848, 844 N.Y.S.2d 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 N.Y.S.2d 360 [2d Dept., 2006], quoting Frankel v. Frankel, 2 NY3d 601, 607, 781 N.Y.S.2d 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 [1d Dept., 2001], quoting O'Shea, 93 NY2d at 193; see also Prichep v. Prichep, 52 AD3d 61, 65 [2d 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 [2d 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 [2d Dept., 2010]; see also Prichep, 52 AD3d at 65; Singer v. Singer, 16 AD3d 666, 667 [2d Dept., 2005]; Flach v. Flach, 114 AD2d 929, 929 [2d 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 [2d Dept., 2008]).

In the case at bar, the defendant requests $10,000 to be paid by plaintiff. During oral argument plaintiff's counsel represented that he had been paid $11,000.00. The Court believes that the amount requested by the defendant is very reasonable, given the circumstances presented: The amount of litigation that has incurred thus far; the amount of litigation that clearly will be necessary in the future, given the position taken by [*10]plaintiff; the experience of defendant's counsel and her submission of an updated statement of billing; the amount paid to plaintiff's counsel; and clearly that the plaintiff is the monied spouse under DRL §237. The Court directs that $10,000 shall be paid by certified check or money order to defendant's counsel within fourteen (14) days of service of a copy of this decision and order by overnight mail next day delivery.

If the monies are not received, in hand, within fourteen (14) days of notice of entry of this decision, defendant's counsel shall provide written notice by overnight mail to plaintiff's counsel that the plaintiff is in default, and if he does not cure that default within three (3) days, defendant may then enter a judgment against the plaintiff, without the need for any further Court intervention, in the Office of the Kings County Clerk, together with costs and interest at the statutory rate of nine percent (9%) effective on the date of default.

Health Insurance

Under these circumstances, the defendant shall procure a health insurance policy for her and the child, so as not to have to reveal her personal documents such as birth certificates and any other documents, given the privacy issues raised, and the HIPAA concerns that this Court has. The plaintiff shall be provided with the bill for the insurance, and he shall pay it within seventy-two (72) hours of receipt through counsel. Plaintiff has been ordered by both Judge Prus and this Court to obtain health insurance for both the defendant and child and has thus far failed to do so.

Custody and Visitation

At this juncture, the child shall remain in the care of the defendant. Plaintiff has not sought visitation, only a paternity test. If the defendant should seek employment, she should be entitled to the reimbursement of any child care while seeking employment. Once she obtains a position, if she so desires, then any payments of child care would be on a pro rata basis.

DNA Testing

In light of the plaintiff's statement in the sworn verified complaint that there is one child of the marriage and naming this child, the plaintiff is judicially estopped from requesting a paternity test. Plaintiff cannot now assert a position inapposite to his prior position in his verified complaint. Plaintiff is judicially estopped from taking an adverse or inconsistent position on this issue simply because his interests have changed (see Karasik v. Bird, 104 AD2d 758, 480 N.Y.S.2d 491 [1d Dept.,1984]; see also Anonymous v. Anonymous, 137 AD2d 739, 524 N.Y.S.2d 823 [2 Dept.,1988]; Tilles Inv. Co. v. Town of Oyster Bay, 207 AD2d 393, 615 N.Y.S.2d 895 [2d Dept.,1994]). Judicial estoppel is intended to avoid abuse of the judicial system by preventing a party from obtaining a benefit by taking one position and then asserting a contrary position in the same, or a subsequent proceeding (see D & L Holdings, LLC v. RCG Goldman Co. LLC., 287 AD2d 65, 734 N.Y.S.2d 25 [2d Dept., 2001]; see also Maas v. Cornell Univ., 253 AD2d 1, 683 N.Y.S.2d 634 [3d Dept.1999]). Plaintiff argues now that despite naming the child of the marriage in his sworn verified complaint he may not be his child and requests a [*11]DNA test due to the defendant's alleged infidelity. That argument is unavailing. The application for paternity testing in the cross-motion is denied at this juncture. Defendant also claims that this request was previously denied in Family Court, but attaches no proof of said assertion.

Consolidation of Family Court Proceeding

The Kings County Family Court action is hereby consolidated, and a consent separate consolidation has already been signed and entered in the Kings County Clerk's Office. All payments due pursuant to this order, except any arrears pursuant to the Family Court order, are retroactive to the date of first application, March 9, 2016.

This matter is scheduled for a preliminary conference on April 25, 2016 at 11:30 a.m. This shall constitute the order of the Court.

E N T E R:

Hon. Jeffrey S. Sunshine

J. S. C. Footnotes

Footnote 1:The Family Court, Kings County, issued a modified temporary order of spousal support on September 8, 2015 directing the plaintiff to pay $2,500.00 monthly to the defendant.

Footnote 2:Annexed to defendant's order to show cause as exhibit A.

Footnote 3:Annexed to defendant's order to show cause as exhibit A.

Footnote 4:Imputation of income is not a deviation factor within the temporary maintenance statute (See DRL 236(B)(5)(h)(1)(a-m)). Pursuant to the Child Support Standards Act (DRL § 240(1-b)(b)(5)(iv)(A-D), "at the discretion of the court, the court may attribute or impute income from, such other resources as may be available to the parent, including, but not limited to: (A) non-income producing assets, (B) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirectly confer personal economic benefits, (C) fringe benefits provided as part of compensation for employment, and (D) money, goods, or services provided by relatives and friends"

Footnote 5:For purposes of the temporary maintenance statute: " Income' shall mean income as defined in the child support standards act and codified in section two hundred forty of this article and section four hundred thirteen of the family court act without subtracting alimony or maintenance actually paid or to be paid to a spouse that is a party to the instant action pursuant to subclause (C) of clause (vii) of subparagraph five of paragraph (b) of subdivision one-b of section two hundred forty of this article and subclause (C) of clause (vii) of subparagraph five of paragraph (b) of subdivision one of section four hundred thirteen of the family court act and without subtracting spousal support paid pursuant to section four hundred twelve of such act." (See DRL § 236 (B) (5-a) (b) (4)).

Footnote 6:(1st Calculation: 20% of the payor's income up to and including the cap ($35,600.00) - 25% of the payee's income ($0.00) = $35,600.00; 2nd Calculation: Payor's income up to and including the cap ($175,000.00) + Payee's income ($0.00) = Combined income ($175,000.00). 40% of combined income ($175,000.00 x .40 = $70,000) - Payee's income ($0.00) = $70,000.

Footnote 7:Pursuant to the Child Support Standards Act, the child support cap increased from $141,000 to $143,000 on March 10, 2016.

Footnote 8:This imputation is subject to further proof provided by the plaintiff for recalculation of child support downward if this amount was actually paid in 2015.