Michael V. v Eva S.

[*1] Michael V. v Eva S. 2016 NY Slip Op 51237(U) Decided on August 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 August 22, 2016
Supreme Court, Kings County

Michael V., Plaintiff,

against

Eva S., Defendant.



xxxx



For Plaintiff:

Kleyman & Associates, P.C.

By: Val Kleyman, Esq.

120 Broadway, 18th Floor

New York, New York 10271

For Defendant:

Mayerson Abramowitz & Kahn, LLP

By: Barry Abbott, Esq.

275 Madison Avenue, Suite 1300

New York, New York 10016
Jeffrey S. Sunshine, J.

The following papers numbered 1 to 4 read herein:

Papers Numbered

Notice of Motion/Order to Show Cause/Petition/Cross Motion and Affidavits (Affirmations) Annexed 1

Opposing Affidavits (Affirmations) 2

Reply Affidavits (Affirmations) 3

Other Papers__Plaintiff's Attorney Affirmation Supplemental 4

Introduction and Procedural Background

The Court is called upon to determine whether it is appropriate to award defendant pendente lite maintenance in compliance with the temporary maintenance guidelines statute in effect from October 12, 2010 to October 25, 2015 when plaintiff commenced this action on [*2]August 31, 2015 or whether to limit any award of pendente lite maintenance to defendant to the standard of support plaintiff unilaterally provided to support the family when the parties maintained one household and after plaintiff left the marital residence in August 2015 (see generally prior DRL 236). The Court is also called upon to explain that an award of pro rata child care expenses is a statutory add-on in addition to any basic child support award where the custodial parent is employed and that such an award is necessary to ensure that the custodial parent does not suffer future ongoing income inequality as a result of time out of the workforce because he or she could not afford child care expenses required to remain in the workforce.

Plaintiff commenced this action on August 31, 2015 represented by counsel, Anne Glatz, Esq., by filing a summons with notice. Defendant appeared in this action through counsel on September 11, 2015 and demanded a complaint. Plaintiff filed the complaint and on October 26, 2015 defendant filed a verified answer, affirmative defenses and counterclaim for divorce. Defendant filed a Request for Judicial Intervention on March 29, 2016 and the matter was scheduled for a preliminary conference on May 12, 2016. The parties, on consent, requested an adjournment of the preliminary conference from May 12, 2016 to May 26, 2016 which the Court granted.

On May 17, 2016, defendant filed an order to show cause [motion sequence #1] seeking the following relief: "1) Setting a court-ordered interim access schedule fixing parenting time for Plaintiff; 2) Precluding the parties from taking either of our children to see a therapist, psychologist, psychiatrist or other mental health professional absent prior written agreement by both parties or court order; 3) Directing that neither party shall discuss the litigation or the parties' disagreements about the access schedule with the children; 4) Requiring the parties to share travel itineraries at least seven (7) days in advance of proposed travel with the children during his or her respective parenting time (including date of departure, date of return, flight details, where and with whom the children are staying, and contact information for the children while away); 5) Directing that the Defendant continue to hold the children's passports; 6) Allowing the Defendant to travel to Belgium with the children from July 13, 2016 until August 24, 2016; 7) Directing the Plaintiff to pay temporary child support to Defendant, plus his pro rata share of the children's add-on expenses, including unreimbursed medical expenses, the costs of childcare and extracurricular/afterschool activities expenses; 8) Directing the Plaintiff to pay temporary spousal maintenance to Defendant; 9) Pursuant to Domestic Relations Law 237(a), awarding Defendant counsel fees in connection with this action, including reimbursement to Defendant in the amount of approximately $60,000 for counsel fees incurred from August 31, 2015 (the date Plaintiff commenced this action) to date, and $25,000 in prospective counsel fees; and 10) Granting the Defendant such other and further relief as the Court may find to be just and proper." The Court signed the order to show cause which was returnable on May 26, 2016 at 9:30 a.m. the date previously scheduled for the preliminary conference.

On May 21, 2016 plaintiff discharged his attorney by consent to change attorney form which was subsequently filed on June 8, 2016. The parties, each represented by counsel, appeared on May 26, 2016 and a preliminary conference was held. Plaintiff appeared on that date represented by, Mark Feldman, Esq., his second attorney of record in this action.

The parties entered into an interim stipulation on consent at the preliminary conference resolving the relief requested in items delineated as 1, 2, 3, 4, 5, and 6 of defendant's order to [*3]show cause. The parties' May 26, 2016 consent stipulation provides that "pending the Court's determination of Defendant's order to show cause paragraphs 7 and 8, Plaintiff shall continue to pay Defendant $3800 monthly for unallocated support on or before the 1st day of each month, non-taxable to the Defendant." On consent, the remainder of the relief requested by defendant [items #7 (temporary child support), #8 (temporary maintenance) and #9 (interim counsel fees)] in defendant's pendente lite order to show cause was adjourned more than a month — to June 28, 2016 — so the issues could be fully briefed.

Defendant filed an "Attorney Affirmation (Supplemental)" dated June 27, 2016 annexing plaintiff's 2015 tax returns and defendant's calculation of child support and temporary maintenance based upon those tax returns. Defendant's counsel affirmed that the supplemental filing was necessary because plaintiff first provided defendant with his 2015 tax return at the preliminary conference on May 26, 2016 after defendant filed her pendente lite order to show cause.

Several days prior to the adjourn date of June 28, 2016, a date selected by both counsel at the May 26, 2016 preliminary conference, plaintiff through counsel sought a further adjournment of defendant's application asserting that plaintiff needed additional time to oppose defendant's order to show cause. Plaintiff's counsel represented that plaintiff needed an adjourn date in mid-September 2016. Defendant's counsel did not consent to further adjourn defendant's application more than two (2) months into mid-September 2016.

On June 27, 2016, the day before defendant's order to show cause was scheduled for oral argument based upon the parties' May 26, 2016 consent stipulation and briefing schedule, plaintiff's second counsel filed an order to show seeking to be relieved as the attorney of record.

At the court appearance on June 28, 2016 plaintiff's counsel represented that he was not prepared to proceed to oral argument on defendant's pendente lite application, despite the prior one (1) month adjournment, because plaintiff was requesting additional time to file opposition affidavit/affirmations. Plaintiff also represented through counsel that he was seeking an adjournment to obtain new counsel. Plaintiff, through counsel argued that defendant's application for pendente lite support needed to be adjourned into September because he was unavailable for a court appearance until after July 12, 2016, because any court appearance before July 13, 2016 would interfere with his summer parenting time with the children. Defendant's counsel represented that defendant was scheduled to leave on international travel with the children on July 13, 2016 pursuant to the parties' consent stipulation dated May 26, 2016 and that she would not be returning to the United States until late August 2016.

The Court granted plaintiff's request for additional time to file opposition affidavit/affirmations but denied plaintiff's request for an adjourn date to mid-September and directed the parties and counsel to appear for oral argument on July 12, 2016. On June 29, 2016, plaintiff relieved Mark Feldman, Esq. as his attorney of record and substituted in his third attorney of record in this action, Val Kleyman, Esq.

On July 5, 2016, during a conference call with chambers staff, the parties' counsel entered into a stipulated briefing schedule which provided for plaintiff to file opposition to defendant's application in hand before 5:00 p.m. to defendant's counsel on July 8, 2016 and for defendant to file any reply affidavit/affirmations to plaintiff's counsel on July 12, 2016.

Plaintiff filed opposition to defendant's order to show cause by cross motion dated July 7, [*4]2016. Defendant filed a reply dated July 11, 2016. On July 12, 2016, the parties agreed on consent to adjourn the affirmative relief sought by plaintiff in the cross motion to September 9, 2016 so those issues could be fully briefed.[FN1]

The parties represented on the record on July 12, 2016 that the only open issues pending before the Court from defendant's order to show cause were items #7, #8 and #9, to wit: " 7) Directing the Plaintiff to pay temporary child support to Defendant, plus his pro rata share of the children's add-on expenses, including unreimbursed medical expenses, the costs of childcare and extracurricular/afterschool activities expenses; 8) Directing the Plaintiff to pay temporary spousal maintenance to Defendant; 9) Pursuant to Domestic Relations Law 237(a), awarding Defendant counsel fees in connection with this action, including reimbursement to Defendant in the amount of approximately $60,000 for counsel fees incurred from August 31, 2015 (the date Plaintiff commenced this action) to date, and $25,000 in prospective counsel fees..." The Court heard oral argument on those issues on July 12, 2016 and then marked the matter decision reserved.

DISCUSSION

The parties were married on June 28, 2008 in Belgium. Defendant is a Belgian national. Plaintiff is from the United States. The parties have two (2) sons: a seven (7) year old and a one (1) year old. The children are Belgian nationals and United States citizens. The parties lived together in New York beginning in July 2009. Plaintiff is a pilot for a major commercial airline. Defendant is an executive director for a non-profit organization.

Defendant avers in her affidavit in support of her order to show cause that "[o]n July 15, 2015, Plaintiff announced that he wanted a divorce, and abruptly left" her and the parties' seven (7) year old and one (1) year old children in the marital residence. She avers that the parties have lived separate and apart since that time. Defendant avers that the children "primarily" live with her in the marital residence and that plaintiff has had parenting time with the children since October 2015. The parties entered into an interim written stipulation dated May 26, 2016 providing a parenting time schedule for plaintiff and a summer travel schedule for defendant to travel with the children to Belgium.

Defendant concedes that the plaintiff has voluntarily paid $3,800.00 monthly in unallocated support since he left the marital residence in August 2015. She contends that plaintiff paid 50% of the cost of the older child's extracurricular/after-school activities from September 2015 until December 2015 when, she avers, he stopped contributing to any add-on expenses in addition to the $3,800.00 unallocated monthly support.[FN2]

The parties filed separate income tax returns for 2015. Both parties are W-2 employees. Plaintiff's 2015 federal tax returns show Medicare wages of $201,160.00 and adjusted gross 2015 income as $183,160.00 (W-2 shows $18,000.00 in deferred compensation).[FN3] Defendant's 2015 [*5]federal tax returns show Medicare wages of $77,886.95 and adjusted gross income of $65,075.00.

According to the worksheets annexed to his supplemental affirmation defendant's counsel requests that the Court award defendant $2,899 monthly in temporary maintenance pursuant to the prior DRL 236 statute (which was in effect when this case was commenced on August 31, 2015) and $3,845 monthly in child support (based upon total combined parental income without apply the statutory cap).[FN4]

Plaintiff's claims that defendant has no basis to seek any financial support, either maintenance or child support, in excess of the $3,800.00 he voluntarily provides because, he argues, "I do not believe I should have to pay above what was spent in our marital lifestyle...." Plaintiff contends that "[s]ince the inception of this marriage" the parties "lived on a joint banking account" where each party contributed $3,000 monthly until, he contends, the defendant's "unilateral decision to work a shortened week, and the hiring of a nanny...." Thereafter, he argues, the parties increased their contributes to the "operating budget" after the second child was born as follows: plaintiff, $3,800 monthly; defendant $3,150 monthly. He argues that the increase in contribution from $3,000.00 to $3,800.00 was to account for the increase in child care expense when the second child was born. He argues that the parties used an "operating budget" of $6950 for "[a]ll of our regularly occurring marital expenses" including rent, food, child care expenses, health care expenses and other household expenses." He further contends that the family did not always use the full $6,950.00 each month and that in "[m]ost months the budget was not only adequate, but had excess funds." In support plaintiff annexed bank records from the parties' joint Bank of America checking account x92 purporting to demonstrate that the parties' monthly expenses did not exceed $6,950 monthly; however, the monthly deposits into that account until the month when plaintiff left the marital residence are as follows: January, $6,950.02 (subtractions: $6,241.25); February, 2015: $7,950.02 (subtractions: $8,484.96); March, 2015, $8,940.02 (subtractions $9,722.40); April, 2015: $15,391.02 (subtractions $14,677.81); May, 2015: $7,646.65 (subtractions $8,039.26); June, 2015: $7,501.37 (subtractions $7,318.61); July, 2015: $9,784.04 (subtractions $9,516.14). The deposits into that account beginning the month plaintiff left the marital residence are as follows: August, 2015: [*6]$6,950.03; September, 2015: $7,609.83; October, 2015: $7,264.53; November, 2015: $4,214.35; December, 2015: $6,950.01; January, 2016: $3,800.00.[FN5] Notably, even the bank records annexed by plaintiff appear to contradict his assertion that before he left the marital residence the family's monthly spending was regularly less than $6,950.00 monthly.[FN6]

In her reply affidavit defendant disputes the representation made by plaintiff and argues that the marital "operating budget" alleged by plaintiff was "not indicative of our typical family spending." She avers that the examples provided by plaintiff allegedly showing that the parties lived with the "operating budget" were months when the parties were either staying free of cost in Belgium with defendant's family (who she avers provided shopping and cooking for the family as well) and did not incur child care expenses or months when she was home on maternity leave. Defendant avers that the family's monthly expenses were "around $9,000 per month" during the marriage, approximately $2,000.00 more monthly than the expenses alleged by plaintiff.

Plaintiff steadfastly contends that, notwithstanding any temporary maintenance guidelines and presumptively correct child support calculations pursuant to the Child Support Standards Act, he should not be financially responsible — and that he cannot afford to pay — to pay support above the $3,800.00 monthly that he voluntarily contributed to the marital "operating budget" during the marriage.

Plaintiff's Affidavit of Net Worth

Plaintiff has filed three affidavits of net worth thus far in the litigation. Defendant

alleged that each succeeding affidavit of net worth filed by plaintiff lists increasingly higher monthly expenses. His most recent Affidavit of Net Worth, dated July 7, 2016, reports monthly expenses totaling $11,312.00 which includes (1) $3,100.00, rent; (2) $455.00, utilities; (3) $1,500.00, food; (4) $50.00, clothing; (5) $75.00, laundry; (6) $184.00, insurance; (7) $0.00, unreimbursed medical; (8) $30.00, household maintenance; (9) $492.00, federal taxes; (10) $1,626.00, miscellaneous expenses; and (11) other, $3,800.00.[FN7]

Plaintiff itemizes total monthly income in the amount of $9,095.56; $300,273.52.00 in assets; and $61,007.17 in liabilities (including $1,310.00 monthly in "loan payments") for a total net worth in the sum of $239,266.35.[FN8] Plaintiff itemizes cash assets of $27,501.19; $260,398.46 in a 401(K) and $12,373.87 in a ROTH IRA. Plaintiff lists liabilities for a $50,000.00 loan to "self" from his Fidelity Investment account dated July 1, 2016; and $11,007.17 to Chase Bank.

Defendant's Affidavit of Net Worth

Defendant's Affidavit of Net Worth, dated October 2, 2015, itemizes total monthly expenses in the sum of $10,698.99 as follows: (1) $2,657.00, rent; (2) $269.39, utilities; (3) $1,592.00, food; (4) $520.00, clothing; (5) $141.00, laundry; (6) $23.88, insurance; (7) $435.00, unreimbursed medical; (8) $472.80, household maintenance; (9) $2,630.00, nanny; (10) $50.00, school transportation for children; (11) $945.62, recreational; (12) $588.00, income taxes; and (13) $373.30, miscellaneous expenses.

Defendant itemizes total monthly income in the amount of $3,876.03; $215,860.53 in assets; and $0.00 in liabilities for a total net worth in the sum of $215,860.53. Included in defendant's Affidavit of Net Worth are cash assets totaling $135,049.24 from checking and savings accounts; a $2,350.00 security deposit held by the landlord of the marital residence; retirement accounts totaling $69,569.59; household furnishings with unknown value; and jewelry including an engagement ring, wedding ring, diamond necklace and earrings with unknown value.

Temporary Maintenance: Prior DRL 236 [B] (5—a) (e) (1) [Cap of $543,000]

Plaintiff commenced this action for divorce on August 31, 2015. In accordance with Domestic Relations Law section 236 [B] (5—a) (e) (1) in effect at that date, commonly referred to as the temporary or interim maintenance guideline statute, "[t]he court shall order the presumptive award of temporary maintenance in accordance with paragraphs (c) and (d) of this subdivision, unless the court finds that the presumptive award is unjust or inappropriate and adjusts the presumptive award of temporary maintenance accordingly based upon consideration of the following factors:

(a) the standard of living of the parties established during the marriage;(b) the age and health of the parties;(c) the earning capacity of the parties;(d) the need of one party to incur education or training expenses;(e) the wasteful dissipation of marital property;(f) the transfer or encumbrance made in contemplation of a matrimonial action without fair consideration;(g) the existence and duration of a pre-marital joint household or a pre-divorce separate household;(h) acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section four hundred fifty-nine-a of the Social Services Law;(i) the availability and cost of medical insurance for the parties;(j) the care of the children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws that has inhibited or continues to inhibit a party's earning capacity or ability to obtain meaningful employment;(k) the inability of one party to obtain meaningful employment due to age or absence from the workforce;(l) the need to pay for exceptional additional expenses for the child or children, including, but not limited to, schooling, day care and medical treatment;(m) the tax consequences to each party;(n) marital property subject to distribution pursuant to subdivision five of this part;(o) the reduced or lost earning capacity of the party seeking temporary maintenance as a result of having foregone or delayed education, training, employment or career opportunities during the marriage;(p) the contributions and services of the party seeking temporary maintenance as a spouse, parent, wage earner and homemaker and to the career or career potential of the other party; and(q) any other factor which the court shall expressly find to be just and proper.

This Court has fully considered the prior temporary maintenance guidelines and statutory factors in Domestic Relation Law 236(B)(5-a) that was effective as of October 12, 2010 and continued until amended effective for cases commenced October 26, 2015.[FN9]

The Court notes that in determining the presumptively correct sum of pendente lite maintenance under the amended statute, the Appellate Division, First Department has found that consideration of the payor's payment of certain "basic living expenses, including housing costs as well as the costs of food and clothing and other usual expenses" is appropriate (see Khaira v. Khaira, 93 AD3d 194, 200, 938 N.Y.S.2d 513 [1 Dept.,2012]. The First Department found in Khaira that calculating the guideline amount and then adding the direct payment for daily living expenses on top of the guideline amount would effectively result in an award above the formula [*7]sum. Furthermore, the Appellate Division, Second Department subsequently found that "there is no indication that the formulas set forth in Domestic Relations Law 236(B)(5-a) were intended to cover the temporary support needs of the nonmonied spouse...but not the carrying charges on a marital residence" (Woodford v. Woodford, 100 AD3d 875, 877, 955 N.Y.S.2d 355 [2 Dept.,2012]; see generally Goncalves v. Goncalves, 105 AD3d 901, 963 N.Y.S.2d 686 [2 Dept.,2013]). The Court in Woodford went on to find that "it is reasonable and logical' to view the formulas set forth in Domestic Relations Law 236(B)(5-a) as covering all the spouse's basic living expenses, including housing costs" (id. at 877). In the case at bar, the parties concede that they have been living separate and apart since August 2015. The parties concede that plaintiff has voluntarily paid $3,800.00 monthly in unallocated support. Neither party claims that plaintiff makes any direct payments for daily living expenses. Here, plaintiff is the monied spouse earning more than twice the annual salary earned by defendant.

Here, the contributions the parties made to deferred compensation are properly included in their gross income for 2015 in as much as any contributions made after commencement are no longer marital property subject to equitable distribution. Plaintiff's argument that, in effect, those monies he contributes to retirement accounts are not available for purposes of calculating any support obligation because it is not included in his "take home" pay is legally unavailing. Further, the defendant's steadfast insistence that the Court only utilize his asserted version of the parties' pre-commencement "operating budget" — as he calls it — is inconsistent with the concept of statutory maintenance guidelines which is a formalistic approach to support which is designed to increase predictability.

The calculation of the temporary maintenance guideline pursuant to the statute in place — former DRL 236(B)(5-a) — when plaintiff commenced this action on August 31, 2015 is properly calculated using plaintiff's annual gross income, as listed on his 2015 W-2 as $201,160.00, and defendant's annual gross income, as listed on her 2015 W-2 as $77,886.95. For purposes of both pendente lite maintenance and child support calculations, annual income is defined as gross income less FICA and New York City taxes. The plaintiff's 2015 W-2 shows that he paid FICA in the sum of $10,274.28 ($7,347.00 social security tax + $2,927.28 Medicare = $10,274.28) and lists $6,783.73 for New York City taxes so the husband's income for calculation of pendente lite maintenance is $184,101.99 ($201,160.00 — $10,274.28 [FICA] — $6,783.73 [NYC tax] = $184,101.99). The defendant's 2015 W-2 shows that she paid FICA in the sum of $5,958.35 ($4,828.99 social security tax + $1,129.36 Medicare = $5,958.35) and lists $2,165.99 for New York City taxes so the defendant's income for calculation of pendente lite maintenance is $69,762.61 ($77,886.95 — $5,958.35 [FICA] — $2,165.99 [NYC tax] = $69,762.61).

I. INCOME:

Up to $543,000

1. Plaintiff$184,101.99

2. Defendant$69,762.61

Over $543,000

3. Plaintiff$0.00

4. Defendant$0.00

II. CALCULATIONS:

[*8]Income Up to $543,000

5. Plaintiff

$184,101.99

6. Defendant

$69,762.61

Basic Calculation

7. Calculation A

$41,278.07

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

8. Calculation B

$31,783.23

40% of Combined Income minus Payee's Income

9. Guideline Amount

$31,783.23 annually; $2,648.60 monthly

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

Low Income Calculation (If Applicable): NOT APPLICABLE IN THIS CASE

10. Payor Income minus Guideline Amount

$0.00

11. Low Income Award

$0.00

III AWARD:

PAYOR

Plaintiff

12. Annual Amount

$31,783.23

13. Monthly Payment

$2,648.60

If the payor's income exceeds $543,000.00, the court considers 19 factors set forth in DRL § 236(B)(5—a)(c)(2)(a) in determining any additional award of temporary maintenance. In the case at bar, the payor's income does not exceed $543,000.00.

As such, the presumptively correct sum of pendente lite maintenance awarded under the guidelines statute in place when the plaintiff commenced this action — August 31, 2015 — would be $31,783.23 annually; $2,648.60 monthly. The Court finds that the presumptive award is not unjust or inappropriate and therefore no deviation is appropriate under the facts and circumstances presented here. The Court hereby awards defendant temporary maintenance in the sum of $2,648.60 monthly to be paid by plaintiff.

Pendente Lite Child Support

The plaintiff contends that his child support obligation should be based upon his voluntary contribution to the parties' "operating budget" during the marriage instead of considering the Child Support Standards Act. He argues that the parties were able to support their lifestyle during the marriage on the "operating budget" so there is no basis for defendant to [*9]seek temporary maintenance and child support pursuant to statute. Plaintiff, in effect, argues that the almost monthly expenditures in excess of $6,950.00 in 2015 before he commenced this action should not be considered because they "were vacations, large purchases, or taxes due..." and not routine expenses.

Plaintiff disputes defendant's sworn statement of net worth accounting of expenses. He argues in his opposition affidavit that "it remains unclear how [defendant's] costs of living and needs have skyrocketed since [he] left the marital residence" when he continues to make "the same contribution [he has] always paid during the marriage...." He argues in his opposition affidavit that "[w]e have two very young boys" and "[t]hey have not lived an extravagant lifestyle that needs to be maintained at levels above what I have been paying ($3800 total) to support our entire family during the course of the marriage [emphasis in original]." He argues that even if the Court considers the temporary maintenance guidelines statute in effect at the time he commenced this action — August 31, 2015 — and the CSSA that the Court should deviate downward on any award because, he alleges, "[u]sing the 2015 numbers would amount to an unjust and inappropriate result, essentially awarding a windfall for the Defendant, above and beyond the lifestyle enjoyed during the marriage" and that doing so would leave him "without enough liquidity to pay bills and eat, let alone maintain any semblance of the lifestyle enjoyed during the marriage." He argues that a pendente lite award based upon the parties' 2015 tax returns would result in defendant enjoying "an increased lifestyle" while he would need to "find lower cost housing in another neighborhood" and as a result he believes that his parenting time and relationship with the children "will suffer greatly."

The defendant does not dispute plaintiff's representations regarding the parties' "operating budget" during the marriage; however, she argues that she is unable to support herself and the child on her income and the voluntary support of $3,800.00 paid by plaintiff. Defendant does not dispute that plaintiff never voluntarily contributed more than $3,800.00 monthly after the birth of the parties' second child ($3,000.00 monthly during the marriage prior to the birth of the parties' second child) to the family "operating budget." Defendant argues that during the marriage the parties' financial contributions resulted in a vast disparity whereby plaintiff contributed only a small portion of his higher income to supporting the family while she contributed almost all of her lower income to the family living expenses. In her reply affidavit defendant argues that "Plaintiff prefers — both during the marriage and since our separation — to enhance his own personal lifestyle at the expense of our children, and to minimize the support he provides the family." She argues that:

[plaintiff]'s net monthly earnings in 2015 were $9,035.44 per month (see his May 2016 net worth statement, referenced below), this means he retained $5,235.44 per month for his personal use. By contrast, in 2015, I made $3,876 per month, yet Plaintiff requested that I contribute $3,150 per month to the family budget. This left me with $726 per month for my personal use (lunches at work, clothes, optical expenses, unreimbursed medical expenses, etc.). This means that, during 2015, I contributed 81% of my net income to the family budget, and Plaintiff contributed 42% of his net income to the family budget...

Additionally, she argues, that because she was the children's primary care-giver she was unable to pursue certain career and employment development in her field because it would [*10]require travel but that her stable presence with the children enabled plaintiff to "advance in his own career" which led to him being promoted and receiving a higher salary before he left the marital residence. Defendant argues that as the primary child care provider for the children she is unable to travel which she contends is required for her to advance and be promoted in her career in international human rights.

Defendant concedes that she earned less in 2015 than in 2014 because after the parties' youngest child was born in December 2014 she returned to work four (4) days a week so she could be "home with the children on Fridays...." She avers that she has been forced to reduce her spending since the parties separated in August 2015 because of the "insufficient financial support Plaintiff has provided and the fact that [she is] paying counsel fees in connection with this action." She argues that plaintiff continues to enjoy the bulk of his income for his personal expenses, including having sufficient disposable income to contribute approximately $44,434.00 into his 401(k) retirement plan between September 2015 and May 2016 — after he commenced this action — while simultaneously claiming that he will be unable to meet his expenses if he is required to pay more than $3,800.00 monthly to support her and the parties' two (2) children. In contrast, she avers, her net worth "plummeted from $215,000 to $139,000 — by $76,000 — during the same period" (September 2015 to May 2016).

Defendant contends that plaintiff's claim that he is unable to further support the parties' children in accordance with his income is a direct result of his decision to allocate his resources elsewhere. She argues that plaintiff's expenses — including his rent, electricity, gas, phone bill, cable package, food expenses and transportation — are higher than her expenses since he left the marital residence. She contends that after leaving the marital residence plaintiff rented an apartment for $3,100.00 monthly which is "nearly $500 per month more than the marital apartment rent, which is $2,657" and that plaintiff "spends $1,500 on food expenses per his May and July 2016 net worth statements, which is more than what [she] spent on food" for herself and the parties' children. She argues that plaintiff "should not be permitted to escape his financial obligations because, for example, he chose to rent a more expensive apartment." She also contends that plaintiff has "taken multiple personal vacations with his girlfriend and his parents since the separation...."

Defendant's counsel argues that the Court should use the parties' total 2015 combined parental income as a cap (rather than $143,000.00) for purposes of calculating child support because of "the respective financial resources of the parties, the fact that Defendant's income is significantly less than Plaintiff's income and the standard of living the children would have enjoyed had the parties not separated."

Child Support

Section 240 of the Domestic Relations Law of New York provides guidelines by the Child Support Standards Act ("CSSA") which must be considered in ascertaining child support. "[T]he CSSA provides a precisely articulated, three-step method for determining child support' [quoting Matter of Cassano, 85 NY2d 649, 652, 628 N.Y.S.2d 10, 651 N.E.2d 878 (1995) ]. The first step requires the computation of combined parental income' (Domestic Relations Law § 240[1—b][b][4]; [c][1] ). The amount of income attributed to each parent is derived by adding gross income, as reported on the most recent Federal tax return, and, to the extent not included as gross income, investment income, imputed income and other income received' by the parent from [*11]eight enumerated sources' " (Matter of Graby v. Graby, 87 NY2d 605, 609—610, 641 N.Y.S.2d 577 [1996], quoting Family Ct Act § 413[1][b][5].

After computing statutory income, a limited number of deductions are allowable under Domestic Relations Law § 240(1—b). The CSSA provides for eight categories of deductions from income, which includes maintenance payments and Federal Insurance Contributions Act (FICA) taxes paid (see Domestic Relations Law § 240[1—b][b][5][vii][A]—[H]. Significantly, receipt of a distributive award payments is not a statutory category of income, nor is the payment of a distributive award a recognized deduction.The court next multiplies the combined parental income figure, up to the current cap of $80,000.00, 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 parents support obligation (Domestic Relations Law § 240[1—b][b][3]; [c][2]. In the final step, where combined parental income exceeds $80,000.00, 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 § (1—b) ] and/or the child support percentage' (Domestic Relations Law § 240[1—b][c] [3]).(Holterman v. Holterman, 3 NY3d 1, 814 N.E.2d 765 [2004] ).

The New York State legislature has since amended the Domestic Relations Law and, thereby, the CSSA formula to increase the statutory guideline cap. The CSSA cap is currently $143,000.00. Effective January 31, 2010,"[t]he court shall multiply the combined parental income up to the amount set forth in paragraph (b) of subdivision two of section one hundred eleven-I of the social services law by the appropriate child support percentage and such amount shall be prorated in the same proportion as each parent's income is to the combined parental income." (DRL 240 1—b [c][2] ). The Social Services law states that:

[t]he combined parental income amount to be reported in the child support standards chart and utilized in calculating orders of child support in accordance with subparagraph two of paragraph (c) of subdivision one of section four hundred thirteen of the family court act and subparagraph two of paragraph (c) of subdivision one-b of section two hundred forty of the domestic relations law shall be one hundred thirty thousand dollars; provided, however, beginning January thirty-first, two thousand twelve and every two years thereafter, the combined parental income amount shall increase by the product of the average annual percentage changes in the consumer price index for all urban consumers (CPIU) as published by the United States department of labor bureau of labor statistics for the two year period rounded to the nearest one thousand dollars.(Social Services Law § 111—I[2][b] ).

Domestic Relations Law section 240 1—b (b)(5)(iii) further defines gross income. "[T]o the extent not already included in gross income in clauses (I) and (ii) of this subparagraph, the amount of income or compensation voluntarily deferred and income received, if any, from the following sources:

(A) workers' compensation,(B) disability benefits,(C) unemployment insurance benefits,(D) social security benefits,(E) veterans benefits,(F) pensions and retirement benefits,(G) fellowships and stipends, and(H) annuity payments;"

As detailed above, in determining a party's child support obligation, the court need not rely upon a party's own account of his or her finances, but may impute income based upon the parties' past income or demonstrated earning potential or on the income the parent is capable of earning "by honest efforts" (Morille—Hinds v. Hinds, 87 AD3d 526, 928 N.Y.S.2d 727 [2 Dept., 2011]; see also Genender v. Genender, 40 AD3d 994, 836 N.Y.S.2d 291 [2 Dept., 2007]; Westenberger v. Westenberger 23 AD3d 571 [2 Dept., 2005]; Rocanello v. Rocanello, 254 AD2d 269, 678 N.Y.S.2d 385 [2 Dept., 1998] ). This is particularly true where the record supports a finding that a parties' reported income on a tax return is suspect (see Ivani v. Ivani, 303 AD2d 639, 757 N.Y.S.2d 89 [2 Dept., 2003]; see also Maharaj—Ellis v. Laroche, 54 AD3d 677, 863 N.Y.S.2d 258 [2 Dept., 2008]; Matter of Graves v. Smith, 284 AD2d 332, 725 N.Y.S.2d 367 [2 Dept.,2001] ). Further, it is well-established that the court can award child support based on the needs of the child where the court finds that a payor spouse's representations regarding income are not credible (see Domestic Relations Law § 240[1—b][k]; see also Lew v. Lew, 82 AD3d 1171, 920 N.Y.S.2d 230 [2 Dept., 2011]; Evans v. Evans, 57 AD3d 718, 870 N.Y.S.2d 394 [2 Dept., 2008]).

Domestic Relations Law 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, 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;

Domestic Relations Law section 240 1—b (b)(5)(v) specifically permits "an amount imputed as income based upon the parent's former resources or income, if the court determines that a parent has reduced resources or income in order to reduce or avoid the parent's obligation for child support". In the case at bar, neither party alleged that it was proper to impute income to the other party.

The Court next multiplies the combined parental income figure up to an initial statutory cap, which is currently combined parental income up to the sum of $143,000.00, 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, 781 N.Y.S.2d 458, 814 N.E.2d 765, supra, quoting DRL 240[1—b][b][3]; [c][2] ). In the final step, [*12]where combined parental income exceeds the statutory cap, "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 ).

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.

Finally, the court is required to articulate its reasons for awarding child support in addition to basic child support above the statutory cap (see Wallach v. Wallach, 37 AD3d 707, 831 N.Y.S.2d 210 [2 Dept., 2007], quoting Matter of Cassano v. Cassano, 85 NY2d 649, 654—655, 628 N.Y.S.2d 10, 651 N.E.2d 878, supra; see also Clerkin v. Clerkin, 304 AD2d 784, 759 N.Y.S.2d 500 [2 Dept., 2003]; Wagner v. Dunetz, 295 AD2d 501, 744 N.Y.S.2d 344 [2 Dept., 2002] ).

Child Support Calculation: Combined Parental Income $143,000 Cap

Additionally the current cap for child support, absent a deviation pursuant to Cassano, is currently $143,000.00 (see Cassano v. Cassano, 85 NY2d 649, 651 N.E.2d 878 [2d Dept., 1995]).[FN10] The defendant has not provided a sufficient basis for the Court, under Cassano, at this juncture, to exceed the $143,000.00 cap that is currently in existence, especially in light of the maintenance awarded herein. As such, the amount of pendente lite child support in this case is calculated on the parties' combined parental income up to the $143,000.00 cap and not on combined parental income above that cap.

If the Court were to utilize the temporary maintenance guidelines effective on the commencement date — August 31, 2015 — as detailed above and not deviate, the pendente lite child support calculation applying the $143,000.00 cap would be as follows: Plaintiff's income available for child support calculation would be $152,318.76 ($201,160.00 less FICA $10,274.28 and New York City tax $6,783.73 and temporary maintenance $31,783.23 = $152,318.76). Defendant's income for child support purposes would be $69,762.61 ($77,886.95 less FICA $5,958.35 less New York City tax $2,165.99 = $69,762.61).[FN11] The combined parental income would be $222,081.37 ($152,318.76 [plaintiff] + $69,762.61 [defendant] = $222,081.37). The child support obligation in accordance with the Child Support Standards Act (CSSA) for two (2) children is 25% of the combined parental income. As such, 25% of the combined parental income, applying the $143,000.00 cap, would be $35,750.00 annually. Accordingly, the plaintiff's pro rata share, (68.59%), for child support applied to total combined parental income would be $24,519.82 annually; or $2,043.32 monthly. Statutory add on expenses, such as day care and unreimbursed medical expenses for the children would also be paid on a pro rata basis [*13]as follows: plaintiff, 68.59%; defendant, 31.41%.

Child Support Calculation: Total Combined Parental Income

If the Court were to utilize the temporary maintenance guidelines effective on the commencement date — August 31, 2015 — as detailed above and not deviate, the pendente lite child support calculation based upon the total combined parental income would be as follows: Plaintiff's income available for child support calculation would be $152,318.76 ($201,160.00 less FICA $10,274.28 and New York City tax $6,783.73 and temporary maintenance $31,783.23 = $152,318.76). Defendant's income for child support purposes would be $69,762.61 ($77,886.95 — $5,958.35 [FICA] — $2,165.99 [NYC tax] = $69,762.61).[FN12] The combined parental income would be $222,081.37 ($152,318.76 [plaintiff] + $69,762.61 [defendant] = $222,081.37). The child support obligation in accordance with the Child Support Standards Act (CSSA) for two (2) children is 25% of the combined parental income. As such, 25% of the total combined parental income, without applying the $143,000.00 cap, would be $55,520.34 annually. Accordingly, the plaintiff's pro rata share, (68.59%), for child support applied to total combined parental income would be $38,079.69 annually; or $3,173.31 monthly. Statutory add on expenses, such as day care and unreimbursed medical expenses for the children would also be paid on a pro rata basis as follows: plaintiff, 68.59%; defendant, 31.41%.

Defendant's Proposed Calculation of Child Support

At oral argument, and in exhibits annexed to his supplemental affirmation dated June 24, 2016, defendant's counsel requests that the Court calculate plaintiff's child support obligation after reducing plaintiff's income by the temporary maintenance guidelines calculation award and including the temporary maintenance guidelines award as income to defendant even though the temporary maintenance guidelines statute at the date of commencement of this action — prior DRL 236(B)(5-a) — did not provide that a temporary award of maintenance was included as income to the payee spouse for purposes of calculating pendente lite child support.[FN13] Defendant's counsel annexed a temporary maintenance calculation worksheet pursuant to prior DRL 236 [B] (5—a) based upon the statutory income cap of $543,000.00 pursuant to the prior temporary maintenance guidelines statute. Defendant's counsel also annexed a child support worksheet in which he deducted the temporary maintenance award from plaintiff (payor spouse) and included the temporary maintenance award as income to defendant (payee spouse) for purposes of calculating pendente lite child support to his supplemental affirmation dated June 24, 2016. Defendant's counsel also maintains that the Court should award pendente lite child support calculated on the total combined parental income without applying the statutory cap (see generally Cassano v. Cassano, 85 NY2d 649, 651 N.E.2d 878 [2d Dept., 1995]). Defendant's counsel offered no affirmative representation regarding whether his client consented to the Court deducting the temporary maintenance guidelines award based upon the $543,000 cap — pursuant [*14]to the statute effective when this action was commenced — from plaintiff's income and include that award as income to defendant for purposes of calculating pendente lite child support if the Court bases the pendente lite child support award upon the statutory cap ($143,000.00) instead of calculating it based upon the total combined parental income.

Based upon the temporary maintenance statute in effect when plaintiff commenced this action the Court deducts the temporary maintenance award from the payor's income for purposes of calculating any pendente lite child support; however, pursuant to that statute there is no basis to include the temporary maintenance award as income to defendant in calculating pendente lite child support. The Court further notes that the controlling case law in the Appellate Division, Second Department at the time this action was commenced was that an award of pendente lite maintenance was only included as income to the payee spouse for the purposes of calculating child support if there was a prior order and the income would have been required to be reported on the prior tax return. Here, since no prior order existed and, therefore, the award of pendente lite maintenance was not reportable in the most recent tax year so 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]. Certainly, the Court could do so based upon defendant's affirmative consent during oral argument and in defendant's counsel's supplemental affirmation dated June 24, 2016. However, defendant offered affirmative consent to do so only if the Court awarded pendente lite child support based upon the total combined parental income instead of applying the statutory cap ($143,000.00).[FN14] At this time, defendant has offered insufficient support for the Court to award pendente lite child support above the statutory cap and, as such, the Court finds that it is appropriate to award temporary maintenance based upon the statute effective at the date of commencement and to calculate pendente lite child support based upon the statutory cap.

The statutory cap for child support is currently $143,000.00 (Social Services Law Section 111-i(2)(b); see generally Cassano v. Cassano, 85 NY2d 649, 651 N.E.2d 878 [2d Dept., 1995]).

Where combined parental income exceeds $143,000 -as in the case at bar- the statue provides that "the court shall determine that amount of child support for the amount of the combined parental income in excess of such dollar amount through consideration of the factors [*15]set forth in paragraph (f) of this subdivision and/or the child support percentage" (Matter of Cassano v. Cassano, 85 NY2d 649, 653, 628 NYS2d 10 [1995] (quoting Family Ct Act 413 [1] [c] [3]). "The court must articulate its reason or reasons for that determination, which should reflect a careful consideration of the stated basis for its exercise of discretion, the parties' circumstances, and its reasoning why there should or should not be a departure from the prescribed percentage" (Gillman, 139 AD3d at 669). "In addition to providing a record articulation for deviating or not deviating from the statutory formula, a court must relate that record articulation to the statutory factors." Matter of Pittman v. Williams, 127 AD3d 755, 756, 7 N.Y.S.3d 227 [2d Dept., 2015]; see Bast v. Rossoff, 91 NY2d 723, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998].

"[T]he court may disregard the formula if 'unjust or inappropriate' but in that event, must give its reasons in a formal written order, which cannot be waived by either party (Family Ct Act § 413 [1] [g])." Cassano, 85 NY2d at 654. "Whenever the basic child support obligation derived by application of the formula would be 'unjust or inappropriate,' the court must consider the 'paragraph (f)' factor," including, "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." id. at 649.

The Court of Appeals has held that when "there was sufficient record indication that no extraordinary circumstances were present," application of statutory child support percentage of combined parental income exceeding the statutory cap was justified and not an abuse of discretion (Cassano, 85 NY2d at 655). The Appellate Division, Second Department has held that the requirements of Cassano were satisfied when the Court set forth in detail that "based upon the standard of living the children would have enjoyed if the parties remained together" the formula set forth in the Child Support Standards Act was to apply to parental income in excess of the statutory cap (Kennedy v. Kennedy, 62 AD3d 755, 757 880 N.Y.S.2d 97 [2 Dept., 2009]).

The defendant has not established a record detailing specific expenses or a lifestyle basis sufficient for the Court, at this juncture, to award child support on combined parental income exceeding the statutory cap, under Cassano, at this juncture, to exceed the $143,000.00 statutory cap (see also Pittman v. Williams, 127 AD3d 755, 7 NYS3d 227 [2 Dept.,2015]). In fact, defendant's primary argument has been that the children's lifestyle was constrained by plaintiff's unwillingness to contribute financially in keeping with his income during the marriage. As such, the amount of pendente lite child support in this case is calculated on the parties' combined parental income up to the $143,000.00 cap and not on combined parental income above that cap.

In accordance with the Child Support Standards Act, plaintiff's income for child support calculation is $152,318.76 ($201,160.00 gross less FICA $10,274.28 and New York City tax $6,783.73 and less temporary maintenance award pursuant to prior DRL 236(B) $31,783.23 = $152,318.76); defendant's income for child support calculation is $69,762.61 [CSSA income without including the temporary maintenance award pursuant to the prior temporary maintenance [*16]guidelines statute as income].[FN15]

The combined parental income would be $222,081.37 ($152,318.76 [plaintiff] + $69,762.61 [defendant] = $222,081.37). The child support obligation in accordance with the Child Support Standards Act (CSSA) for two (2) children is 25% of the combined parental income. As such, 25% of the combined parental income, applying the $143,000.00 cap, would be $35,750.00 annually. The parties' pro rata shares would be: plaintiff, 68.59%; defendant, 31.41%. Accordingly, the plaintiff's pro rata share, (68.59%), for child support based upon the $143,000.00 cap shall be $24,519.82 annually; or $2,043.32 monthly.

Plaintiff shall make the first pendente lite child support in compliance with this decision and order on September 1, 2016. Each subsequent payment shall be made on the 1st day of each month thereafter. Plaintiff maintains that he cannot meet his basic living expenses if he is required to pay more than $3,800.00 monthly in combined maintenance and child support; however, defendant correctly points out that more than several of the monthly expenses — such as rent, food expenses, electric, phone bill and cable package — claimed by plaintiff are higher than the same expenses she lists for herself and the parties' two (2) children.

Retroactivity

The Court notes that an award of maintenance and child support is effective as of the date of application (see Domestic Relations Law § 236 [B][6][a]; see also Elimelech v. Elimelech, 58 AD3d 672, 874 N.Y.S.2d 490 [2 Dept., 2009]; Evans v. Evans, 57 AD3d 718, 870 N.Y.S.2d 394 [2 Dept., 2008]. Defendant's first application for pendente lite maintenance and child support was May 19, 2016 (see Domestic Relations Law section 240; see also Dooley v. Dooley, 128 AD2d 669, 513 N.Y.S.2d 167 [1987]). "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]).

Pursuant to this decision and order the plaintiff's combined pendente lite maintenance and child support obligation is $4,691.92 monthly ($2,648.60 monthly temporary maintenance; $2,043.32 pendente lite child support). The retroactive award is calculated from the date of the defendant's first application, May 19, 2016 to date, and totals $14,075.76 ($4,691.92/month x three (3) months [May 19, 2016 through August 15, 2016]). Retroactive sums due by reason of this award shall be paid in full within forty-five (45) days of service with notice of entry of this decision and order with a credit for child support, maintenance or extra-curricular payments made by check or other negotiable instrument since May 19, 2016 (see Domestic Relations Law § 236 [B][6][a]; see also Mosso v. Mosso, 84 AD3d 757, 924 N.Y.S.2d 394 [2 Dept.,2011]). [*17]Payment of pendente lite maintenance shall be income to defendant and deductable to plaintiff to the extent permitted by statute.

Statutory Add-On Expenses: Child Care

Defendant requests that the Court direct plaintiff to pay his pro rata share of statutory add-on expenses in compliance with the CSSA. She avers that the parties entered into a written agreement with a child-care provider (a copy of which she annexed to her order to show cause as exhibit N) in December 2014, before plaintiff left the marital residence. Defendant avers that based upon the parties' agreement the child care provider is paid "approximately $560 per week, or $2,408 per month" depending on whether child care is provided for one or both children. She contends that child care is required Monday through Thursday because she is working. Plaintiff argues that any financial responsibility on his part for child care must be paid from the $3,800.00 monthly he voluntarily provides to support the children. He contends that during the marriage his $3,800.00 monthly contribute was sufficient to cover costs including child care. Plaintiff does not dispute that defendant is employed Monday through Thursday.

"Where the custodial parent is working, ... and incurs child care expenses as a result thereof, the court shall determine reasonable child care expenses and such child care expenses, where incurred, shall be prorated in the same proportion as each parent's income is to the combined parental income" (DRL § 240[1—b][c][4]). Here, there has been no stipulation or final determination of custody of the parties' children; however, at this time, pursuant to the parties' interim stipulation dated May 26, 2016, the children's primary residence is with the defendant in the marital residence and the plaintiff has parenting time pursuant to an interim schedule.[FN16]

Notably, it is undisputed that the parties entered into a detailed written agreement with a child-care provider during the marriage and that child-care provider continues to provide extensive weekly child care for the children. It is also undisputed that defendant works Monday through Thursday. Defendant contends that the monthly child care expense is approximately $2,408. Plaintiff does not dispute defendant's representation regarding child-care expenses; however, he argues that defendant should pay child care expenses from the $3,800 he voluntarily provides and that he should have no further financial responsibility for child care expenses. The plaintiff clearly wants the economic benefits of the defendant being employed to be part of any calculation, but wants her to absorb the full cost of the child care. Plaintiff's position lacks an understanding of the long-term negative economic consequences of child care and as to why it is a separate "add on" under the statute when a parent is employed or seeking employment. Without a contribution for child care most custodial parents would not be able to work or seek employment. The custodial parent who is out of the workforce because of a lack of child care suffers for many years to recover the economic loss and income inequality of being out of the workforce even after the children are grown.

Defendant's application for statutory add-on expenses for child care are granted pursuant [*18]to DRL § 240(1—b)(c)(4)—(7). The parties shall be financially responsible for the monthly child care costs as follows: plaintiff, 68.59%; defendant, 31.41%. Defendant shall submit to plaintiff on the 1st of each month an accounting of child care expenses required as a result of her employment for the prior month. Plaintiff shall provide his pro rata share of those child care expenses to defendant on the 15th of each month together with his basic child support payment.

Statutory Add-On Expenses: Health Insurance/Unreimbursed Medical Expenses

Defendant avers that she incurred unreimbursed medical expenses for the children from December 2015 through April 2016 and that she requested contribution from plaintiff as follows: December, $89; March 2016, $1,105; April 2016, $771.20 [total: $1,965.20]. Defendant concedes that plaintiff contributed the sum of $600.00 toward these expenses but she requests that the Court direct plaintiff to pay his pro rata share of the children's unreimbursed health expenses. Defendant annexed documentation in support of her claim of these unreimbursed medical expenses as exhibit II to her reply affidavit. She also requests that plaintiff be financially responsible for his pro rata share of the $1,500.00 annually she contribution into a Health Savings Account for the family's benefit. Plaintiff did not provide any opposition specific to defendant's request that he be financially responsibility for his pro rata share of unreimbursed medical expenses for the children. Defendant's application that the parties financially share unreimbursed medical expenses pro rata is granted pursuant to DRL § 240(1—b)(c)(4)—(7). The parties shall be financially responsible for unreimbursed medical expenses for the children as follows: plaintiff, 68.59%; defendant, 31.41%. Defendant shall submit to plaintiff on the 1st of each month an accounting of unreimbursed medical expenses for the prior month together with supporting documentation for the prior month. Plaintiff shall provide his pro rata share of those unreimbursed medical expenses to defendant on the 15th of each month together with his basic child support payment. Neither party shall change the beneficiary status of any health insurance coverage. Health care providers covered by the existing health insurance shall be used unless specific non-plan health care providers were utilized before commencement except where no health care providers covered by the existing health insurance are available.

Statutory Add-On Expenses: Extracurricular/Afterschool Activities

Defendant argues that plaintiff should be directed to reimburse her for his pro rata

share of the oldest child's extracurricular activities, including swimming ($315), ice skating ($140), soccer ($100) and Dutch classes ($2,200). She avers that the child participated in all of these activities during the marriage on consent of plaintiff — except for ice skating — and that the child has taken Dutch classes since he was three (3) years old. She annexes documentation in support of her claimed extracurricular expenses as exhibit II to her reply affidavit.

Plaintiff does not dispute that during the marriage the children participated in the extracurricular activities as delineated by defendant. Rather, plaintiff contends that he should not be financially responsible for those continuing extracurricular activities because he believes the children do "not life" the activities.

Defendant's application that the parties financially share the cost of extracurricular activities the children participated in during the marriage on a pro rata basis is granted pursuant to DRL § 240(1—b)(c)(4)—(7). In awarding pro rata extracurricular expenses the Court has considered the fact that it is undisputed by either party that the child regularly participated in the extracurricular activities — except for ice skating — during the marriage. The Court also finds that [*19]a pro rata award of the limited extracurricular expenses delineated by the defendant is appropriate in this case, in part, because the Court has declined to award pendente lite child support on the combined parental income above the cap of $143,000.00. The Court further notes that primary extracurricular expense listed by the defendant is Dutch language classes. Defendant avers, and the plaintiff did not dispute, that the child who is seven (7) years old and a Belgium national and has been taking Dutch language lessons since he was three (3) years old. The record establishes that defendant and both of the parties' children are Belgian nationals and plaintiff is from the United States. The Court recognizes the importance, to both children, of cultivating their connection to their Belgian heritage, culture and the language and the Court will not interfere with the child's continuing to take Dutch language lessons. The Court notes that it is undisputed that during the marriage the child spent extended vacations in Belgium with maternal relatives. It is questionable that plaintiff's opposition to the child's continued extracurricular activities, including the Dutch lessons, appears to coincide with his commencement of this divorce action.

The parties shall be financially responsible for extracurricular activities the children participated in during the marriage as follows: plaintiff, 68.59%; defendant, 31.41%. Defendant shall submit to plaintiff on the 1st of each month an accounting of extracurricular expenses for the prior month. Plaintiff shall provide his pro rata share of those extracurricular activities to defendant on the 15th of each month together with his basic child support payment. Neither party shall be financially responsible for the extracurricular activity expenses associated with any additional, new extracurricular activities that the children were not enrolled in during the marriage without written consent of the other party or further Court order.

Counsel Fees

Defendant avers that plaintiff is the monied spouse and she requests an award of counsel fees. Defendant contends she has incurred "considerable counsel fees" in exchanging and negotiating settlement proposals in this action. She contends that plaintiff discharged his first attorney of record after extensive settlement negotiations and that she has incurred additional counsel fees that she would not have incurred because plaintiff has retaining three (3) different attorneys since commencing this action and that each change of attorney has required her attorney to, in essence, begin negotiations again which results in her incurring additional counsel fees. Additionally, defendant argues that plaintiff has engaged in "inappropriate actions — including changing the beneficiary of his life insurance policies days before filing this action, repeatedly refusing to provide me with an advance travel itinerary when traveling with the children, secretly taking [one of the parties' sons] to a psychologist over my express objection, and placing [that same son] in the middle of Plaintiff's disagreements with me over the access schedule" which she avers have forced her to involve her attorney which have resulted in her incurring additional, unnecessary counsel fees. In support of her application defendant annexed her retainer agreement with counsel and a current sworn statement of net worth in compliance with DRL § 237(a) and 22 NYCRR § 202.16(k)(2) and (3). Additionally, defendant annexed a copy of the parties' joint 2014 tax return and a copy of her 2015 tax return.

Defendant avers that she first retained her attorneys on August 10, 2015 to attempt a settlement and paid a retainer of $15,000.00 and that she signed a new litigation retainer with her attorneys on October 2, 2015, after plaintiff commenced this action, and paid an additional [*20]retainer of $15,000. The retainer agreement provides that defendant will be billed at a rate of between $90.00 to $550.00 for legal services rendered in connection with this matrimonial action depending on whether the service is rendered by one of the firm's clerks/administrative assistants or by Mr. Abbott, a partner at Mayerson Abramowitz & Kahn, LLP and the principal attorney handling the case. Defendant's counsel's hourly rate appears reasonable based upon his experience.

Defendant's counsel annexed billing records for services rendered from August 18, 2015 through May 16, 2016. In his affirmation dated May 17, 2016 defendant's counsel affirms that defendant had paid $66,680.76 for services rendered in connection with this matrimonial action. Defendant's counsel annexed updated billing records to his reply affirmation for services rendered from May 2015 though July 11, 2016 reflecting a balance due and owing in the sum of $25,724.90 for services rendered as of July 11, 2016. Defendant avers that she has paid her counsel fees from a savings account and that no other person has paid or promised to pay these counsel fees on her behalf. Defendant's counsel argues that plaintiff has engaged in unreasonable actions since commencing this divorce action which caused defendant to incur counsel fees and, he argues, the Court should order plaintiff to reimburse defendant "the entire amount of counsel fees" she has incurred thus far in the litigation and that the Court "should award Ms. [S] $25,000 in prospective counsel fees..."

In his opposition affidavit dated July 7, 2016, plaintiff avers that although his gross earnings are higher than defendant's that "when you look at the total circumstances and assets" that the parties are "already on relatively equal footing" when it comes to "cash flow" considering the parties' net after expenses. He argues that his "take home pay ranges from $6,000-$7,000" and that the "defendant's ranges from $2,000-$3,000" but that after he gives defendant $3,800 monthly he is "left with approximately $2700 while Defendant has approximately $6,300." Plaintiff contends that he is "depleting [his] savings just trying to support [his] own legal fees, as a result of the defendant's refusal" to agree to joint custody. In his affidavit in opposition plaintiff contends that it is defendant's "hard line" approach to negotiations that have forced the parties to incur increasing counsel fees. He further contends that since defendant retains "some of the best lawyers in New York" that they should have "realized the negotiations were unproductive" sooner in the litigation and that they should have moved for court intervention sooner instead of continuing to engage in attempts to negotiate a settlement. Plaintiff contends that "[i]t appears that [defendant's counsel] were all happy to continue to negotiating and billing until the retainers ran out and they were out of fees" before they sought pendente lite relief. The record reveals that defendant's counsel, not plaintiff's counsel, filed the request for judicial intervention on March 31, 2016.

The Court notes that records provided by defendant show that during this litigation plaintiff's contributions increased his 401(k). Defendant annexed documentation showing that plaintiff's 401(k) increased from $259,898 in September 2015 to $304,332 in May 2016 while arguing that he cannot contribute any additional financial support to the defendant or the parties' children. At the same time, defendant avers that her net worth decreased by $76,000.00 — from $215,000.00 to $139,000.00 — during the same months to provide daily living expenses for herself and the parties' two (2) young children and pay her counsel fees for this action. The Court does not adopt plaintiff's position that his support obligation must be capped at the sum he [*21]voluntarily contributed to the family "operating budget" during the marriage. Defendant convincingly argued that during 2015 she contributed eighty-one (81%) percent of her net income to the family budget while plaintiff contributed forty-two (42%) percent of his net income to the family budget. Clearly the financial contribution plaintiff voluntarily made during the marriage resulted in a financial situation where plaintiff continued less than half of his income to family expenses while defendant used nearly all of her income towards family expenses. As a result, it appears that plaintiff retained more than half of his income for his personal use independent of his contribution to the family while defendant retained only a minor percentage of her income for her personal use.

At oral argument plaintiff represented through counsel that he has paid attorneys the sum of $39,500.00 in counsel fees incurred in connection with this action. Plaintiff did not indicate if he had a balance due and owing of any additional counsel fees in connection with this litigation. Plaintiff has retained and discharged two (2) attorneys thus far and is currently represented by his third attorney in this litigation. Plaintiff's retainer agreement with his current counsel provides that he will be charged at the rate of $400.00 hourly.

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

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 [*22]234 [2d Dept 2008], citing O'Shea v O'Shea, 93 NY2d 187, 193, 689 NYS2d 8 [1999]; Wald v Wald, 44 AD3d 848, 844 NYS2d 86 [2d Dept 2007]). "Such awards are designed to redress the economic disparity between the monied spouse and the non-monied spouse' and ensure that the matrimonial scales of justice are not unbalanced by the weight of the wealthier litigant's wallet'" (Kaplan v Kaplan, 28 AD3d 523, 523, 812 NYS2d 360 [2d Dept 2006], quoting Frankel v Frankel, 2 NY3d 601, 607, 781 NYS2d 59 [2004], quoting O'Shea, 93 NY2d at 190).

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

"The 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, supra).

In the case at bar, the defendant requests that all of her counsel fees be paid by plaintiff. Defendant's counsel affirms that defendant has paid $66,680.76 as of May 17, 2016 [FN17] and has a balance due and owing in the sum of $25,724.90 as of July 11, 2016 [FN18] . Defendant also requests that the Court direct plaintiff to pay the sum of $25,000.00 in prospective counsel fees. Defendant argues that plaintiff is the monied spouse and that the progression of attorneys he has retained and then discharged in this litigation has forced her to incur unnecessary counsel fees. During oral argument on July 12, 2016 plaintiff represented on the record through counsel that he has paid a total of $39,500.00 total thus far to the three (3) attorneys he has retained in connection with this litigation.

The Court finds that under the facts and circumstances presented here, including the nature and complexity of the issues raised, the parties' income and assets and liabilities, as sworn to in their respective Affidavits of Net Worth, the retainer agreements, the qualifications of defendant's counsel and the updated billing statements for legal services rendered in connection with this litigation and the fact that plaintiff is clearly the monied spouse as contemplated by [*23]DRL §237(a) that an award of pendente lite counsel fees in the sum of $25,000.00 is just and appropriate. This award of $25,000.00 to the defendant-wife for pendente lite attorney's fees is without prejudice to future applications for additional counsel fees, as necessary at the time of trial or sooner, upon the requisite showing (see DRL § 237; Prichep v. Prichep, 52 AD3d 61, 858 N.Y.S.2d 667 [2nd Dept.2008]; Kesten v. Kesten, 234 AD2d 427, 650 N.Y.S.2d 807 [2nd Dept.1996]; Dodson, 46 AD3d at 305; Jorgensen v Jorgensen, 86 AD2d 861, 861 [2 Dept.,1982]). The Court notes that defendant had to appear and respond to plaintiff's numerous changes in representation and requests for adjournments even after the parties entered into a detailed briefing schedule on consent.

The Court believes that, pursuant to the dictates of Prichep (supra.), to require a more detailed inquiry would defeat the purpose of a pendente lite counsel fee award and serve as an obstacle to the non-monied spouse obtaining and maintaining competent counsel.

The payment in this award of pendente lite counsel fees of $25,000.00 shall be made directly from the plaintiff to the defendant's counsel within forty-five (45) days of service of notice of entry of this decision and order. If the plaintiff fails to make the payment in compliance with this decision and order the defendant's attorney may enter a judgement for the full amount due and owing, plus statutory interest, with the Clerk of the Court upon ten (10) days written notice by certified and regular mail to the plaintiff and without further application to this Court.

This shall constitute the decision and order of the court.

E N T E R:

Hon. Jeffrey S. Sunshine

J.S.C. Footnotes

Footnote 1:The parties through counsel submitted a written stipulation dated August 2, 2016 detailing a briefing schedule for the plaintiff's cross-motion.

Footnote 2:The parties' second child is one (1) year old and defendant did not specify that this child has been or is enrolled in any extracurricular activities.

Footnote 3:$201,160.00 ($183,160.00 + $18,000.00 = $201,160.00)

Footnote 4:Defendant's counsel annexes a temporary maintenance guidelines worksheet pursuant to statute in effect at the date of commencement (which provided a statutory cap of $543,000). Defendant's counsel calculated a monthly award of temporary maintenance of $2,899.18 based upon the following incomes: plaintiff, $201,160; defendant, $76,123. It is unclear to the Court where defendant's counsel derived the $76,123 income for defendant (defendant's 2015 medicare wages were $77,886.95 and adjusted gross was $65,075). Defendant's counsel annexed a child support worksheet to his supplemental affirmation in which he proposes that the Court calculate the parties' child support based upon the total parental income of $285,720 (plaintiff, $184,542; defendant, $101,179) without applying the statutory cap for a monthly child support award of $3,845 payable plaintiff to defendant. Defendant's counsel's calculation includes a temporary maintenance award of $34,790 as income to defendant for purposes of calculating the parties' pro rata child support obligation even though that is not provided for under the temporary maintenance guidelines statute effective at the date of commencement of this particular action.

Footnote 5:It appears that beginning in 2016 plaintiff deposited $3,800.00 monthly into the account and defendant withdrew the deposit to another account.

Footnote 6:Plaintiff maintains that in the year prior to commencement of this action the family had expenses such as items for the children, a birthday party, travel and vacations, tickets to the opera, etc. that account for spending exceeding the $6,950 "operating budget"; however, from a review of the banking record attached by plaintiff it appears that such expenses were almost a monthly occurrence. Plaintiff offers no legal basis for why such regularly occurring expenditures would not be considered in calculating the family's lifestyle. It appears disingenuous for plaintiff to argue that while the family's monthly expenses — as reflected on just one bank account and not taking into account any family expenses paid from any other source — were almost always more than $6,950.00 that the Court should not consider expenses such as entertainment or travel expenses that the family enjoyed during the marriage in awarding temporary maintenance and child support.

Footnote 7:Plaintiff filed two (2) earlier affidavits of net worth dated October 2, 2015 and May 25, 2016 when represented by each of his prior attorneys in this action. The monthly expenses listed on his October 2, 2015 affidavit of net worth were listed as $8,358.00 (which included the $3,800.00 voluntary payment for support). The monthly expenses listed on his May 25, 2016 affidavit of net worth were listed as $7,481.83 (which did not include the $3,800.00 voluntary payment for support).

Footnote 8:Defendant contends that plaintiff has failed to include at least one (1) bank account he holds in Belgium on his affidavit of net worth. She annexes banking records purported from the alleged account to her reply affidavit.

Footnote 9:The currently enacted permanent maintenance guidelines are effective only for cases commenced after January 25, 2016 and the current temporary maintenance guidelines only apply to cases commenced after October 26, 2015. In as much as this action was commenced on August 31, 2015, the prior temporary maintenance guidelines is the statute that applies to this case. (See DRL §236(B)(5-a) effective October 12, 2010). Pursuant to prior DRL 236(b)(5-a) the correct calculation on a cap for temporary maintenance would be $543,000.00.

Footnote 10:The Child Support Standards Act cap increased from $141,000.00 to $143,000.00 as of April 1, 2016.

Footnote 11:Pursuant to the statute in effect as of date of commencement of this action, prior DRL 236(B)(5-a).

Footnote 12:Pursuant to the statute in effect at the date of commencement.

Footnote 13:The commencement date of this action is August 31, 2015 and the current temporary maintenance guidelines statute which includes pendente lite maintenance awards as income to the payee spouse for purposes of calculating pendente lite child support only became effective October 25, 2016.

Footnote 14:If the Court adopted defendant's counsel's position and calculated temporary maintenance pursuant to the statute in effect at the date of commencement the monthly award would be $2,648.60 ($31,783.20 monthly). If the Court included that award of temporary maintenance as income to defendant for calculating pendente lite child support the parties' incomes would be: plaintiff, $152,318.79; defendant, $101,545.81. If the Court then calculated pendente lite child support based upon the total combined parental income without applying the statutory cap the plaintiff's monthly child support would be $3,173.31. If the Court applied the statutory cap the plaintiff's monthly child support would be $1,787.50. As such, the monthly support obligation proposed by defendant's counsel, even though he proposes to include the temporary maintenance award as income to defendant for calculating pendente lite child support, would result in a monthly award of $5,821.91.

Footnote 15:Pursuant to the statute effective at the date of commence the award of temporary maintenance was not included as income to the payee for the purposes of calculating pendente lite child support (see prior DRL 236).

Footnote 16:The Court notes that plaintiff filed a cross-motion, with his opposition to defendant's order to show cause, dated July 7, 2016 seeking, inter alia, sole temporary residential and legal custody of the parties' children. The parties stipulated to adjourn plaintiff's cross-motion to September 9, 2016 and entered into a written stipulation dated August 2, 2016 with a full briefing schedule. The Court appointed an attorney for the children by written order dated July 19, 2016.

Footnote 17:Sum paid from defendant's counsel's affirmation dated May 17, 2016.

Footnote 18:Balance due and owing from defendant's counsel's reply affirmation.