P.S. v M.S.

[*1] P.S. v M.S. 2016 NY Slip Op 51803(U) Decided on June 1, 2016 Supreme Court, Orange County Vazquez-Doles, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on June 1, 2016
Supreme Court, Orange County

P.S., Plaintiff,

against

M.S., Defendant.



2038/2014



Counsel for Plaintiff: Michelle Ellerin, Esq.

Counsel for Defendant: Howard Kave, Esq.
Maria S. Vazquez-Doles, J.

The following papers numbered 1 - 22 read on Defendant's Motion to Renew and Reargue pursuant to CPLR §2221:

Notice of Motion/Affidavit of M.S. dated 9/15/15 Affirmation of Howard Kave, Esq., dated 9/15/15/Exhibits A - F & M 1 - 10

Affidavit in Opposition of P.S. dated 10/19/15 Affirmation of Michele Ellerin, Esq., dated 10/19/15/Exhibits A - F 11 -18

Reply Affirmation of Howard Kave, Esq., dated 10/28/15 Affidavit of M.S. dated 10/29/15/Exhibits A - B 19 - 22

Background:

This action for divorce and ancillary relief was commenced by Plaintiff/husband with the filing of a Summons and Verified Complaint on March 18, 2014. Plaintiff seeks a judgment of absolute divorce on the grounds that the marriage has irretrievably broken down pursuant to DRL §170(7). Defendant filed a Verified Answer and Counter Claim also seeking a judgment of divorce pursuant to DRL §170(7) on June 3, 2014. The request for judicial intervention was filed on November 28, 2014. A preliminary conference was held on February 20, 2015. On consent and so-ordered by this Court the parties agreed to a visitation arrangement, where the un-emancipated children would alternate weeks with each parent. Additionally, the husband agreed to maintain all family health, dental, and life insurance policies provided through his employer and agreed not to enter the marital residence without providing advanced notice within forty-eight (48) hours.

The parties were married on October 22, 1983, this is a thirty-two (32) year marriage. There are three children born to this marriage, to wit: El. S., born March 29, 1992 (24 years old- emancipated), C.S., born March 12, 1997 (19 years old), and E.S., born March 16, 2000 (16 years [*2]old). Both Husband and wife are forty-nine (49) years old. Both parties are in good health. As of July 2014, the wife lives in the marital residence located in New Windsor, NY and the husband has been renting an apartment in Cornwall, NY since he moved out in June 2014. The parties' two (2) un-emancipated children split time between each of their parent's household. At present, both the oldest and middle child are enrolled in college. At the time of the filing of the first pendente-lite motion, the wife worked as a Veterinary Technician for a local veterinary facility for approximately thirty(30) hours per week, and the husband worked full time as a Director of Environmental Health and Safety for Pfizer, Inc.. Husband holds a B.S Degree received in 1985, an MPH in 1992 and an MBA earned in 2005. Wife earned an AAS in 1985 and is a licensed NYS Veterinary Technician.

Husband's base salary is approximately $175,500 and he receives a bonus at the end of the year which varies. When the first motion was brought on March 23, 2015, Wife was earning $18.00 per hour as a veterinarian technician and working about 30 hours per week. Her own affidavits/affirmations projected, based upon her then current earnings [FN1] , that her annual income would be $27,846.00. The Court used Defendant's sworn assertions as a fair part time annual salary, denied Husband's request to use only his base salary of $169,000, and instead used $221,000 in considering support. The Court found that an award to Defendant in the amount of $5,103.48 spousal support was unjust and inappropriate when considering that Plaintiff/Husband was paying for mostly all the following expenses for Defendant and the children, without the Wife's assistance; to wit, the mortgage, taxes and insurance of the marital home, the Home Equity Line of Credit, the children's college education and expenses, the health insurance and all unreimbursed medical expenses for the entire family, the automobile insurance for Defendant and the children, the family charges on the Kohl's credit card, the USAA credit card, Netflix, Walmart charges, the cells phones and gas for all four vehicles, the pet veterinarian bills, lawn service for the marital home, the EZ-pass for all vehicles, the alarm system for the marital home, the Sirius XM radio for Defendant, the hotel room for Defendant when she visited the daughter at college, the Sports Club for the children, and his own rent so the children would have a place to stay with him during the one half access time. Therefore the Court determined that a deviation from the guidelines was appropriate and granted zero(0) spousal or child support. The Court did, however, Order that Plaintiff continue the financial status quo by paying all the bills he has historically paid since leaving the marital home.

On August 10, 2015, unbeknownst to the Court, Defendant/Wife was discharged from her employment as a veterinary technician, because her position was eliminated. The Decision of the Court was rendered on August 21, 2015.

On September 21, 2015, Defendant/wife filed the instant motion and moved to reargue and renew.

Motion to Reargue:

Defendant first argues that the Court misapprehended either law or facts because it did not grant an award of maintenance or child support to the Defendant based purely on the presumptive guidelines. This Court disagrees. "The formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law §236(B)(5-a)(c) is intended to cover all of the payee spouse's basic living expenses, including housing, costs of food and clothing, and other usual expenses." Su v Su, 128 AD3d 949, 950 (2d Dept 2015). The Court did not overlook or misapprehend any facts or law, but rather found that the presumptive guideline amount of maintenance was unjust and inappropriate under the facts of this case as Plaintiff/Husband was paying almost all of the bills of all the members of the household. Here, the wife and the children's needs were being met and Defendant/wife was employed and earning a salary which she could use for all other incidentals not covered by the Plaintiff. Additionally, Plaintiff/husband had his own expenses to pay in his separate residence. The new maintenance law requires the Court to not only determine the presumptive amount, but then decide if this amount is unjust or inappropriate. (See Vistocco v Jardine, 116 AD3d 842 (2nd Dept. 2014) citing Khaira v. Khaira, 93 AD3d 194(1st Dept. 2012). In this case the Defendant had one, maybe two jobs, some inheritance from a death in her family, and almost all of her living expenses paid for by Plaintiff. (See Petrie v. Petrie, 143 AD2d 258 (2d Dept. 1988) which discusses how inheritance is a resource factor to consider in maintenance.) Although Defendant is unhappy with this result, the Court used its discretion and determined that the presumptive award was unjust and inappropriate and deviated from that guideline amount. Su v. Su, 128 AD3d 949 (2d Dept. 2015), and Scott v.Ilona, 31 Misc 3d 353 (Sup Ct Kings Cty 2011). Accordingly, it is hereby

ORDERED that Defendant's motion to reargue is denied.

Motion to Renew:

Defendant/Wife next moves to renew the prior motion because there is 'new' information which came to light after her first motion was brought and would have directly impacted the Court's decision, to wit: on August 10, 2015 she became unemployed. She argues that this new information is sufficient cause to renew her pendente lite motion for support. She argues that as a result of the loss of these jobs, she is "totally without income, while her husband presumably continues to earn over $220,000 per year." (Aff. of Howard Kave, Esq. ¶8-11).

The Court disagrees with Defendant's understanding of CPLR §2221(e). The case law interpreting the 'new' evidence which the statute refers to, must have existed at the time the original motion was filed, (3/23/15), but was not discovered until after the decision was rendered; in essence, newly discovered evidence. This is clear from the 1999 amendments which added subdivision (e)(3) and requires a reasonable justification for failing to present the new facts on the original motion. See Sobin v. Tylutki, 59 AD3d 701 (2nd Dept. 2009). In Sobin, the Court stated "The Supreme Court lacks discretion to grant renewal where the moving party omits a reasonable justification for failing to present the new facts on the original motion (citing Worrell v. Parkway Estates, LLC, 43 AD3d at 437 (2nd Dept. 2007)). In this case, defendant could not possibly justify why the new information was not included in the original motion because this information did not exist until August 10, 2015 when Defendant became unemployed. The fact that she lost those jobs is not 'new evidence' under CPLR §2221(e), but rather a change in circumstances which occurred well after the original motion was made. Therefore, the proper procedural method which should have been used was a motion to modify based upon a [*3]substantial change in circumstances. Accordingly, it is hereby

ORDERED that Defendant's motion to renew is denied.

Motion to Modify Spousal and Child Support:

Notwithstanding the above denial of Defendant's motion, the Court recognizes that Defendant's papers, although cloaked in the form of one to renew and reargue, presented arguments for an upward modification. In an effort to conserve both judicial resources and the resources of these two litigants, the Court will deem the papers submitted to be a motion for an upward modification due to a substantial change in circumstances.[FN2] In doing so, the Court will also take into consideration the letters dated March 10, 2016 from both Plaintiff and Defendant's counsel regarding Defendant's recent employment and Plaintiff's exercise of stock options to pay off joint marital debt and college expenses.

Defendant's change in circumstance argument relies heavily upon the fact that she lost her main job as a veterinary technician, working 30 hours per week at $18/hour, on August 10, 2015. While the Court is aware that Defendant, as of January, 2016 is again employed as a veterinary technician, there is a short period of time where a substantial change of circumstance existed. Therefore the Court will consider Defendant's arguments for the period from August 10, 2015 to January, 2016 when she was unemployed.

Defendant alleges that she voluntarily left her second job at Verizon in July 2015 in hopes of working full time at the animal hospital, but now she is unemployed due to job elimination. Defendant claims that as a result of this job loss, she has no money of her own to pay for items which Plaintiff has not been paying, to wit; electricity, fuel oil, propane, food for herself and the children when they are with her, gasoline which she alone uses, garbage removal, snow removal in the winter, telephone, television, internet service, clothes she wears, non-insured medical services for her, co-pays, prescription medicines, and cleaning/laundry supplies. She claims in her affidavit that these expenses exceed $1,600, and avers that she "...can not pay without assistance from my 'moneyed spouse'". (see Defendant's affidavit ¶11). Defendant does not include an updated statement of net worth in her motion papers, but instead directs the Court to the updated statement of net worth previously filed on November 6, 2015. The November statement of net worth lists $3,054.30 worth of expenses per month. Part of these expenses are Defendant's vacation, health club, donations to charity, beauty aids, and expenses which Plaintiff claims to be paying. The statement does not include any income for jobs, but does include an unidentified $400/month real estate income she receives, as well as several accounts which hold cash and securities identified as inheritance in the amount of $158,000.00. In addition to the cash and securities, Defendant also shows $248,938.00 in vested trusts. Finally, Defendant fails to mention that she has applied and is due to receive unemployment benefits in the amount of $310 per week. The Court notes that Defendant never mentions these resources in her affidavit, but instead argues that she is unable to pay her expenses without support from Plaintiff.

Domestic Relations Law §236 Part B (9)(b) allows the Court to modify a support order upon a showing of a recipients inability to become self-supporting or a substantial change of [*4]circumstance, including financial hardship. Wyser-Pratte v Wyser-Pratte, 66 NY2d 715 (1985). Although not specifically alleged, Defendant argues both these theories; she has lost her job and can not meet her bills without Plaintiff's support. "The party seeking modification of a support order has the burden of establishing the existence of a substantial change in circumstances warranting the modification". Perrego v Perrego, 63 AD3d 1072, 1073 (2d Dept 2009), citing Matter of Nieves—Ford v. Gordon, 47 AD3d 936 ( 2d Dept. 2008) and Carr v. Carr, 187 AD2d 407(2d Dept. 1992). In this case, Defendant has failed to do so. First of all, Defendant failed to include an Updated statement of net worth with her motion papers showing all the bills that she was not able to pay. Secondly, she failed to mention in her affidavit requesting the relief, all her sources of income to support the position that she was unable to be self-supporting and was in need of spousal support. Finally, even if the Court overlooked the failure to include the updated statement of net worth, and considered the document filed on November 6, 2015, Defendant's inconsistent and/or omitted information does not convince this Court that there should be an upward modification of spousal support at this time. Accordingly, it is hereby

ORDERED that Defendant's motion for an upward modification of spousal support is denied with leave to renew upon a proper showing.

Child Support:

The Court has also considered Defendant's request for a modification of child support as well. The Court notes that Defendant did not provide any bills for the children which Plaintiff/ Husband did not pay, and merely relies on her assumption that she should get child support just because she is the less monied spouse. Unlike spousal support,"Courts considering applications for pendente lite child support may, in their discretion, apply the CSSA standards and guidelines, but they are not required to do so..." Davydova v. Sasonov, 109 AD3d 955, 957 (2nd Dept. 2013). (quoting Rubin v. Della Salla, 78 AD3d 504, 505 (1st Dept.2010)). In this instant case, the Court has considered the life styles of the parties, their respective incomes, the fact that two of the children are away in college for most of the year and that the current access schedule affords alternating weeks with each parent. The Court has also considered that Plaintiff/Husband is paying all the expenses of college, many of the aforementioned bills of the children such as cell phones, auto insurance, medical, etc., all of his own housing expenses, and most of Defendant/wife's housing expenses and bills which afford the children a place to stay when they visit either parent. Considering these factors and using its discretion, the Court does not find that an upward modification of child support is warranted at this time. Accordingly, it is hereby

ORDERED that Defendant's motion to modify child support is denied.

Motion for Expert Fees:

Defendant has renewed her request to have Plaintiff/Husband pay the $3,000 retainer fee to evaluate Plaintiff's two master degrees. Defendant has included a letter from the accountant with a brief, general synopsis of what the expert will do during his evaluation.

Spouses are entitled to retain an expert to explore each other's assets in order to determine value and to expose any hidden assets of marital property. See Ganin v. Ganin, 114 AD2d 883, (2nd Dept.1985). The Court can order the more monied spouse to pay the adequate funds necessary to retain an expert for the investigation. Id. In order for a Court to grant an award for expert fees, the Court must evaluate: "(1) the nature of the marital property involved; (2) the difficulties involved, if any, in identifying and evaluating same; (3) the services to be rendered [*5]and an estimate of the time involved; and (4) the movant's financial status." Ahern v. Ahern, 94 AD2d 53, 58 (2nd Dept.1983). The spouse seeking to retain an expert must provide the court "with sufficient information concerning the expert to be utilized, the anticipated work involved, and an estimate of the approximate cost of the services to be rendered." Ganin,114 AD2d at 884. The Affidavit of Mr. Bullis attached to the motion provides general information on how he conducts evaluations, and that his rate to be retained is $3,000. The Court notes that he does not mention his hourly rate or how many hours will be needed for this evaluation, and assumes that Mr. Bullis will be working on a flat fee basis to produce a written report, and only charge more if testimony is required. While it is true that a court can order the monied spouse to pay for this evaluation, it is also true that this expense would be subject to re-allocation at the conclusion of trial. However, it is also important that the less-monied spouse have some 'skin in the game',[FN3] so that marital funds are not foolishly spent. In this case, it appears to the Court that Plaintiff's salary in excess of $250,000 per year, is a good indication of the value of his degrees and Defendant should consider whether the use of an expert is really necessary. However, should Defendant and counsel decide that an evaluation is necessary, it is hereby

ORDERED that Defendant's motion for expert fees in the amount of $3,000.00 to retain Mr. Bullis to evaluate Plaintiff's enhanced earning capacity is granted to the extent, that Plaintiff is directed to pay one half of the expert retainer, to wit: $1,500.00, within 15 days of receipt of proof that Defendant has paid the expert her one-half share.

The foregoing constitutes the Decision and Order of this Court.

Any matters not specifically addressed were considered and denied.

Dated: June 1, 2016

Goshen, New York

HON. MARIA S. VAZQUEZ-DOLES, J.S.C. Footnotes

Footnote 1:Defendant was also working at Verizon part time as a book keeper but did not disclose this job or income to the Court at the time of the first application, nor in her statement of net worth. Subsequent to the filing of the first application, but prior to the Court's decision, Defendant voluntarily terminated that job in July. The Court did not consider this cash income as it was only raised in the opposition papers and Plaintiff provided no proof as to the amount she earned.

Footnote 2:Defects of this sort can be cured under CPLR 2001, which permits the court, "[a]t any stage of an action,... [to] permit a mistake, omission, defect or irregularity... to be corrected, upon such terms as may be just." NY C.P.L.R. 2221 (McKinney)

Footnote 3:The phrase "skin in the game," refers to the belief that the best way to insure that a party to a divorce will litigate reasonably and responsibly is to require the party to share in the cost of the litigation. Sykes v. Sykes, 41 Misc 3d 1061 (Sup. Ct. NY County 2013)