A.S. v K.S.

[*1] A.S. v K.S. 2016 NY Slip Op 51800(U) Decided on December 12, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 December 12, 2016
Supreme Court, Kings County

A.S., Plaintiff,

against

K.S., Defendant.



XX/16



Yonatan Levoritz, Esq,

Attorney for the Plaintiff

1022 Avenue P

Brooklyn, NY11223

Brian D. Perskin, Esq,

Attorney for the Defendant

44 Court Street, #1210

Brooklyn, NY11201

Ira Forman, Esq.

Attorney for the Children

26 Court Street, #2403

Brooklyn, NY 11242
Jeffrey S. Sunshine, J.

Introduction and Background

Applications for temporary pendente lite relief in matrimonial litigation are often fraught with conflicting claims which result in the need for a factual determination which tests the truth and veracity of each parties' claim. It is troubling when both parties jointly own a pharmacy, that appears to be the major source of income, and the defendant wife presents a lifestyle and economic demand which exceed the income reported and the plaintiff husband admits to both parties having jointly engaged in tax fraud. The plaintiff husband collects social security disability benefits claiming a mental illness and the defendant claims that the plaintiff transferred $400,000.00 of marital monies in dissipation or secretion of marital assets overseas which resulted in a loss of those funds. Plaintiff claims it was a failed business venture. Defendant wife also claims that plaintiff husband has a "side business" which does not appear to have any associated tax filing.

The claims by both parties herein contain volumes of documents as exhibits often duplicative in nature or of very little probative value [FN1] and given that they lack any specificity or admissibility. Plaintiff's tactic of submitting the same documents numerous times is duplicative and a waste of judicial resources.

It is well established that where a party believes a pendente lite award is improper the appropriate remedy is a speedy trial (see Gillings v. Gillings, 56 AD3d 424, 424, 867 N.Y.S.2d 474, 475 [2d Dept., 2008]). Notwithstanding that general principle, it has also been held that where parties present conflicting affidavits a hearing may be the more appropriate remedy (see Colley v. Colley, 200 AD2d 839, 841, 606 N.Y.S.2d 796, 798 [3d Dept., 1994]). Evidentiary hearings on pendente lite applications have the inherent risk of becoming nothing more than a discovery proceeding akin to a deposition with a Judge present unless tailored and structured to provide specific information and limited in scope and time. A failure to so limit, could result in substantial judicial resources being imposed upon to conduct such a hearing with increasing legal costs as well as other financial implications for the parties to earn income during the time they must be in Court for such hearings. Given the nature of the facts presented the case at bar appears to be one of those instances.

On April 25, 2016, plaintiff-husband moved by order to show cause [motion sequence #1] requesting the following relief: A) Pursuant to DRL §234, granting plaintiff permission to enter the residence located at Voorhies Avenue in Brooklyn, New York, accompanied by a police officer from the New York Police Department, to collect his belongings; B) Pursuant to DRL §240, awarding the plaintiff sole physical custody and legal custody of the parties' children I.S. (Age nine (9)) and L.S. (Age four (4)) and in the [*2]alternative liberal access to the parties' children pending a hearing on the issue of custody; and C) for such other and further relief as this Court may deem just and proper, including costs upon this motion.

During their first appearance, the parties entered into two stipulations. The first consent stipulation related to plaintiff's re-entry into the former marital residence to obtain personal belongings and the second related to parenting time between the plaintiff and the subject children.

On July 11, 2016, the plaintiff filed a second order to show cause [motion sequence #2] requesting the following relief: A) Pursuant to DRL §§234 and 236(B), granting the plaintiff pendente lite exclusive use and occupancy of the marital residence, located on Voorhies Avenue in Brooklyn, New York, and excluding the defendant therefrom; B) Pursuant to DRL §§236(b) and 240, granting the plaintiff, pendente lite custody of the parties' two (2) children, pursuant to a 50/50 access schedule; C) Pursuant to DRL §236(B), directing the defendant pay to plaintiff pendente lite maintenance in the amount and sum of three thousand four hundred twenty-six dollar and seventy-nine cents ($3,426.79) per month pursuant to the guidelines, or in the alternative, in the event that the defendant's income cannot be determined, a needs-based award of pendente lite spousal maintenance pursuant to DRL §236(b)(5-a)(g); D) Pursuant to DRL §237(B), directing that defendant pay to plaintiff as and for pendente lite counsel fees in connection with this action, the sum of twenty-five thousand dollars ($25,000.00); E) Pursuant to DRL §§236(B) and 240, directing the immediate appointment of an attorney for the parties' children, to represent their interests herein, with the cost of such appointment to be paid 100% by the defendant, who earns the majority of the family income and the plaintiff is not self-supporting and is receiving disability benefits; F) Pursuant to DRL §§236(B) and 240, directing the immediate appointment of a neutral forensic doctor to evaluate the parties and their home environment, and to present a recommendation to the Court on the issues of legal custody, physical custody, and access time with the cost of such appointment to be paid 100% by the defendant; and G) For such other and further relief as this Court may deem just and proper, including costs upon this motion.

On July 15, 2016 the defendant filed a cross-motion [motion sequence #3] requesting the following relief: A) Pursuant to DRL §240, awarding the defendant sole physical and legal custody of the parties' children; B) Awarding the defendant exclusive use and occupancy of the parties' marital residence located on Voorhies Avenue in Brooklyn, New York pendente lite; C) Awarding the defendant child support payable by the plaintiff in an amount to be determined pendente lite; D) Order the plaintiff to pay his share of add-on expenses for the parties' children, including but not limited to, unreimbursed medical expenses, health insurance expenses, educational expenses, extra-curricular expenses, summer camp expenses, and the like; E) Ordering that the plaintiff submit to a random drug screening to ensure his compliance with any and all medications [*3]prescribed for him; F) So-ordering a subpoena for Metlife Inc. related to plaintiff's disability records and ordering the plaintiff to execute HIPAA releases as necessary to effectuate the release of said records; G) Ordering that the pharmacy business owned by the parties to be sold and that the proceeds be placed in an escrow account or allowing defendant to seek relief of automatic orders and allow the business to be sold; H) Ordering the plaintiff to pay counsel fees for the defendant in the amount of $35,000.00 pendente lite; and I) For such other an further relief as this Court deems just and proper.

On July 26 2016 the defendant filed an affirmation of counsel and affidavit in opposition to plaintiff's order to show cause [motion sequence #2]. On July 27, 2016, the plaintiff filed an affidavit and affirmation in further support of the emergency order to show cause [motion sequence #1] and in opposition to defendant's cross-motion [motion sequence #3]. On July 29, 2016, the plaintiff filed a reply in further support of his order to show cause for omnibus pendente lite relief [motion sequence #2]. On August 2, 2016 the defendant filed an affidavit in reply in support of the cross-motion [motions sequence #3]. On August 3, 2016, with Court permission, the plaintiff filed a sur-sur-reply affidavit in further support of the emergency order to show cause [motion sequence #1] and in opposition to the cross-motion [motion sequence #3].

The parties, counsel and the attorney for the children appeared on August 3, 2016 on the issue of the appointment of a neutral forensic evaluator and on the remaining financial issues pendente lite. The Court directed that a psychologist be appointed to conduct a forensic evaluation. Due in part to the pending forensic evaluation and the parties' consent stipulation regarding temporary access, the issue of a final order regarding custody and visitation was adjourned on consent.

Facts

The parties were married in October 2002 in a civil ceremony and have two (2) children, I.S. who is ten (10) years old and L.S. who is four (4) years old. It is undisputed that the parties jointly opened a pharmacy together in 2011. Both parties signed the lease to the building. The defendant is a licensed pharmacist and the plaintiff, who seeks an order of custody, receives disability payments due to his being diagnosed with bi-polar disorder. It is not disputed that he occasionally worked at the parties' pharmacy and during the marriage maintained the books and records of the business.

On May 19, 2016, the plaintiff was arrested allegedly stealing her property, jumping on her back and attempting to take her cell phone away so she could not call the police. On May 20, 2016, a temporary order of protection was issued against the plaintiff and in favor of the defendant by the Criminal Court, Kings County.[FN2]

Discussion

The Court has seriously considered denying both parties relief based upon the claims and alleged defenses put forth given the clear inability for the parties to live on the income they report. The Court though must consider the needs of the children in as much as the children did not create either this business model or sign the tax returns of the affidavits submitted herein. The Court is well aware of the statutory maintenance guidelines (D.R.L. § 236(B)[5-a]) and the child support standards act ((D.R.L. § 240(1-b)). These two statutes provide a formulaic, predictable basis for the establishment of both maintenance and child support awards, yet both statutes and case law allow for alternative methods in determinating said awards where the income of the parties cannot be determined.[FN3]

The Court is also aware of the seminal cases of Prichep v. Prichep (52 AD3d 618, 58 N.Y.S.2d 667 [2d Dept., 2007]) and Frankel v. Frankel (2 NY3d 601, 814 N.E.2d 37 [2004]) in determining counsel fee awards pendente lite and that IAS courts should not defer the issue of counsel fees to the trial court.

As such the Court directs that a limited evidentiary hearing be held on February 3, 2017 regarding the issues of pendente lite maintenance, child support, counsel fees and exclusive use and occupancy of the marital residence. The plaintiff put forth the proposition that since the defendant wife allegedly cheated the government in an amount greater than the plaintiff, the plaintiff is entitled to counsel fees as the non-monied spouse and an award of maintenance. The Court, on the record on August 3, 2016, engaged in the following with plaintiff's counsel:

THE COURT: You want the Court to be the IRS and determine how much money they both cheated the government?

MR. LEVORITZ: "I want to put an accountant on the witness stand who will testify as to how much they cheated the government and then have the Court determine what proportion each individual litigant will pay.

THE COURT: Let me get this straight, in open court you would like to put your client on the witness stand to testify as to cheating the government in taxes and you have informed him of the criminal position you may be putting him in?

MR. LEVORITZ: That's correct your honor.[FN4]

Furthermore, plaintiff posits that $154,000.00 in income should be imputed to the defendant based upon an internet search which he alleges is "in accord with the income received by the highest ten percent (10%) of Pharmacists as indicated on the United States Bureau of Labor Statistics website."

The Court will not permit this pendente lite hearing to be an exercise in calculating which party has cheated the government more, nor will it be a basis to impute income based upon an "internet search" of what pharmacists generally earn. It will be a hearing to determine the parties income, lifestyle and expenses, the viability of an award of counsel fees for a party who allegedly lost $400,000.00 and the veracity of that claim and to test plaintiff's claim he is unable to work due to his mental illness. The plaintiff is cautioned not to include gross receipts alone as his basis for income calculation. The cost of goods must be considered.

Conclusion

Pursuant to this decision and order a formal evidentiary hearing will take place on February 3, 2017 at 9:30 a.m.[FN5] The Court intends to address the issue of whether a party who admits to fraud in the operation of a business is entitled to maintenance from income derived from that business; this in the context of $400,000.00 in unaccounted monies together with the failure to list certain real estate in an affidavit of net worth.

Counsel are to pre-mark all exhibits and plaintiff shall have all witnesses ready to testify in the morning and the defendant in the afternoon. Each side is limited to one (1) day to present their case. Any and all subpoenas shall be submitted to the Court within twenty (20) days of notice of entry of this decision. Any remaining issues not decided herein are reserved for the trial court. This shall constitute the decision and order of this Court.

Footnotes

Footnote 1:Cf. Santanastasio v. Doe, 301 AD2d 511, 511, 753 N.Y.S.2d 122, 123 [2d Dept., 2003] (The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact from the case, and such showing must be made by producing evidentiary proof in admissible form).

Footnote 2:On September 8, 2016 plaintiff's counsel sent a letter to the Court, copied to defendant's counsel and the Attorney for the Children, in which he informed the Court that the Kings County Criminal Court matter had been adjourned "in contemplation of dismissal" and sealed for one year. Furthermore the temporary order of protection was extended by the Kings County Criminal Court to "remain in full force and effect until and including September 6, 2017."

Footnote 3:[A]t 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 (NY Dom. Rel. Law § 240 (McKinney).

Footnote 4:New York Rules of Professional Conduct §1.6: (a) A lawyer shall not knowingly reveal confidential information, as defined in this Rule, or use such information to the disadvantage of a client or for the advantage of the lawyer or a third person, unless: (1) the client gives informed consent, as defined in Rule 1.0(j); (2) the disclosure is impliedly authorized to advance the best interests of the client and is either reasonable under the circumstances or customary in the professional community; or (3) the disclosure is permitted by paragraph (b). "Confidential information" consists of information gained during or relating to the representation of a client, whatever its source, that is (a) protected by the attorney-client privilege, (b) likely to be embarrassing or detrimental to the client if disclosed, or (c) information that the client has requested be kept confidential. "Confidential information" does not ordinarily include (I) a lawyer's legal knowledge or legal research or (ii) information that is generally known in the local community or in the trade, field or profession to which the information relates.

Footnote 5:The Court recognizes that this hearing must be limited in time and allocation, the greatest obstacle to conducting a pendente lite hearing is the impact on judicial resources and the added expenses to the parties.