Barlik v Barlik

[*1] Barlik v Barlik 2017 NY Slip Op 51115(U) Decided on August 31, 2017 Supreme Court, Queens County Koenderman, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 31, 2017
Supreme Court, Queens County

Pavol Barlik, Plaintiff,

against

Edyta Barlik, Defendant.



10314/2016



Attorney for Plaintiff: Susan Moss

Attorney for Defendant: Warren Hoffman
Elisa S. Koenderman, J.

Plaintiff moves for an order granting him unsupervised overnight visitation with the child S.B. (D.O.B. xx/xx/16), as well as exclusive use and occupancy of the marital residence. Defendant cross-moves for an order granting her exclusive use and occupancy of the marital residence; sole physical and legal custody of the child; temporary maintenance and child support. Defendant also cross-moves for an order directing Plaintiff to pay 100% of the carrying costs of the marital residence; an order appointing a forensic accountant to value the income from Plaintiff's business as well as a real estate appraiser to value the marital residence, at Plaintiff's expense; and for counsel fees. In determining the motion, the court considered Plaintiff's Order to Show Cause; Defendant's Cross-Motion; and Plaintiff's Reply Affidavit (see CPLR 2219). The court decides the motions as follows.

The court grants Plaintiff's motion for overnight visitation with the child to the extent that, in addition to the current schedule, the court awards Plaintiff one weekly overnight visit with the child, to be supervised by the paternal uncle and aunt at their home. The court reserves decision on Plaintiff's motion for unsupervised overnight visitation pending oral argument on the next adjournment date.

The court denies Defendant's cross-motion for sole physical and legal custody of the [*2]child. Pendente lite, S.B. shall continue to live primarily with Defendant while Plaintiff shall continue to visit with him as the court orders or the parties mutually agree. Additionally, Plaintiff and Defendant shall retain joint legal custody of S.B., including the right to make everyday decisions for him when the child is in his or her physical custody.

The court denies Plaintiff's motion for exclusive use and occupancy but grants Defendant's cross-motion motion for exclusive use and occupancy of the marital residence. Defendant lives in the marital residence with the parties' eighteen-month-old son as well as Defendant's nine-year-old son from a prior marriage. Defendant asserts that she and Plaintiff conceived their child through in vitro fertilization and that she has "always cared for [him] as [her] only job since his birth." She alleges that she and Plaintiff initially agreed that she would "[stay] at home as [the child's] primary caretaker" rather than work [FN1] . Defendant presently has an order of protection against Plaintiff pursuant to an adjournment in contemplation of dismissal of a criminal contempt action. Since Defendant has an order of protection against Plaintiff [FN2] , her safety requires that she have exclusive use and occupancy of the marital residence (see Formato v Formato, 173 AD2d 274 [2d Dept 1991]; Preston v Preston, 147 AD2d 464, 465 [2d Dept 1989]; Harrilal v Harrilal, 128 AD2d 502, 503 [2d Dept 1987]; King v King, 109 AD2d 779 [2d Dept 1986]; DeMillio v DeMillio, 106 AD2d 424 [2d Dept 1984]). Indeed, "the presence of domestic strife is a recognized standard for an award of temporary exclusive possession" (Delli Venneri v Delli Venneri, 120 AD2d 238, 240 [1st Dept 1986]; see Mitzner v Mitzner, 228 AD2d 483 [2d Dept 1996]; Pascazi v Pascazi, 52 AD3d 664, 665 [2d Dept 2008]; cf. Taub v Taub, 33 AD3d 612 [2d Dept 2006]). Moreover, as the parent with whom the child lives, Defendant should have temporary exclusive possession of the marital residence (see McCoy v McCoy, 117 AD3d 806, 809 [2d Dept 2014]; Nissen v Nissen, 17 AD3d 819, 820 [3rd Dept 2005]). Finally, since Plaintiff momentarily lives elsewhere, he will not be dislocated by having to move out (see Pascazi, 52 AD3d at 665; Delli Venneri, 120 AD2d at 241; Wolfe v Wolfe, 111 AD2d 809, 810 [2d Dept 1985]; cf. Fleming v Fleming, 154 AD2d 250, 251 [1st Dept 1989]).

The court grants Defendant's motion for temporary maintenance and child support. The court must calculate temporary maintenance before child support since it must subtract temporary maintenance from the payor's income to determine the amount of child support (see DRL § 240[1-b][b][5][iii][I]). To determine temporary maintenance, the court must calculate the guideline amount by applying the statutory formula to the payor's income up to the statutory cap of $178,000 (see DRL § 236[B][5-a][b][5] & [6]). The court may adjust the guideline amount of temporary maintenance if it is "unjust or inappropriate" (DRL § 236[B][5-a][h][1]; see also Goncalves v Goncalves, 105 AD3d 901, 902 [2d Dept 2013]). The court must consider certain enumerated factors, including but not limited to the health and age of the parties; the present or future earning capacity of the parties; and care of children during the marriage that inhibits a party's earning capacity, as well as any other factor which it finds just and proper (see id.) to determine "whether and to what extent it will apply the statutory formula" to the payor's income which exceeds the statutory cap (Goncalves, 105 AD3d at 902; see DRL § 236[B][5-[*3]a][d]; cf. Lundgren v Lundgren, 127 AD3d 938, 940 [2d Dept 2015]).

The parties' joint 2015 tax return [FN3] , which contains both their W2 forms as well as a Schedule C form for Plaintiff, reflects an adjusted gross income of $398,859. The Defendant's W2 form indicates that she earned $16,000 as an employee of Plaintiff's business, Tatra Renovations, Inc. Accordingly, the court attributes income of $382,859 to Plaintiff for 2015. The parties' joint 2016 tax return [FN4] , which contains both their W2 forms as well as a Schedule C form for each, reflects an adjusted gross income of $296,305. The Defendant's W2 form indicates that she earned $15,500 as an office worker at Plaintiff's business. In addition, her Schedule C form indicates that she received $10,000 as the sole proprietor of a business. Hence, the court attributes income of $280,805 to Plaintiff for 2016. The court imputes the average of these amounts, which is $326,832, as current income to Plaintiff based upon his "past income or demonstrated earning potential" (Rocanello v Rocanello, 254 AD2d 269 [2d Dept 1998]). In contrast, despite her past earnings Defendant contends that she presently does not work since she stays at home to take care of the parties' infant child. The court therefore imputes zero current income to Defendant. Applying the statutory formula, the guideline amount of temporary maintenance based upon Plaintiff's income capped at $178,000 is $35,599.92 annually, or $2,966.66 per month (see DRL § 236[B][5-a][d]).

After considering the relevant statutory factors, the court finds the guideline amount of temporary maintenance to be unjust and inappropriate (see DRL § 236[B][5-a][h][1]). Plaintiff owns his own business from which he earns a significant amount of money. Regardless of her previous employment, Defendant's present earning capacity is inhibited by her care of the parties' infant child (see DRL § 236[B][5-a][h][1][i]). Moreover, the parties enjoyed a high standard of living during the marriage, as evidenced by the expenses reflected on their net worth statements (see DRL § 236[B][5-a][h][1][k]). Indeed, both parties allege that monthly carrying costs for the marital residence alone exceed $5,000. Accordingly, it is just and appropriate that Plaintiff pay Defendant temporary maintenance of $5,500 per month, taxable to Defendant (see DRL § 236[B][5-a][d][2]; see also Goncalves, 105 AD3d at 902-903; RI v TI, 51 Misc 3d 1215[A], 8, 2016 NY Slip Op 50664[U] [Sup Ct, Kings County 2016]). Since the parties were married for only sixteen months (see DRL § 236[B][5-a][b][3]), Plaintiff shall pay Defendant temporary maintenance for a period of four months (see DRL § 236[B][5-a][f] ["the court shall determine the duration of temporary maintenance by considering the length of the marriage"] [emphasis added]; see also Goncalves, 105 AD3d at 902). This is a sufficient period for Defendant to meet her expenses while seeking employment and making any necessary child care arrangements (see DL v KG, 41 Misc 3d 1231[A], 6, 2013 NY Slip Op 51949[U] [Sup Ct, Kings County 2013]).

To determine child support, the court must calculate the amount of the basic child support obligation by applying the statutory formula to the parents' combined income up to the statutory cap of $143,000 (see DRL § 240[1-b][b] & [c]). Here, Plaintiff's current income, minus temporary maintenance to Defendant, is $304,832. Defendant's income, comprised of temporary maintenance from Plaintiff, is $22,000. The basic child support obligation based [*4]upon the parents' combined income capped at $143,000 is $24,310 per year (see DRL § 240[1-b][c][2]; DRL § 240[1-b][b][3][i]).

When the parents' combined income exceeds the statutory cap, the court must determine the amount of child support, if any, from the excess income by considering certain enumerated factors as well as any other factors which the court deems relevant (see DRL § 240[1-b][c][3]; see also Sprole v Sprole, 145 AD2d 1367, 1369 [3rd Dept 2016]). Considering Plaintiff's financial resources; Defendant's substantially lesser income; and the high standard of living the child would have enjoyed had the marriage continued, the court finds it just and appropriate to apply the statutory formula to the parents' total combined income of $326,832 (see DRL § 240[1-b][f]; see also Allison B v Edward A, 54 Misc 3d 1226[A], 5, 2017 NY Slip Op 50322[U] [Sup Ct, NY County 2017]; cf. CG v FG, 53 Misc 3d 229, 236, 2016 NY Slip Op 26220 [Sup Ct, Richmond County 2016]). The enhanced child support obligation is $55,561.44 per year. While Defendant receives temporary maintenance from Plaintiff, Plaintiff shall pay 93% and Defendant shall pay 7% of that amount. Accordingly, while Defendant receives temporary maintenance from Plaintiff, Plaintiff shall pay Defendant $4,306.01 per month in child support. Further, while Defendant receives temporary maintenance from Plaintiff, Plaintiff shall pay 93% and Defendant shall pay 7% of statutory add-on expenses, including but not limited to unreimbursed medical expenses (see DRL § 240[1-b][c][5][v]; see also Lueker v Lueker, 72 AD3d 655, 658 [2d Dept 2010]; Hughes v Hughes, 79 AD3d 473, 476 [1st Dept 2010] ["add-on expenses such as child care and unreimbursed medical expenses are to be prorated in the same proportion as each parent's income is to the combined parental income"]). Once Plaintiff's temporary maintenance obligation terminates in four (4) months, Plaintiff shall be responsible for 100% of the enhanced child support obligation (see DRL § 240[1-b][b][5][iii][I]). Hence, once Defendant no longer receives temporary maintenance from Plaintiff, Plaintiff shall pay Defendant $4,630.12 per month in child support and Plaintiff also shall pay 100% of statutory add-on expenses, including but not limited to unreimbursed medical expenses.

The court denies Defendant's motion for Plaintiff to pay 100% of the carrying costs of the marital residence. Defendant's temporary maintenance award encompasses all her basic living costs, including housing, food, clothing and other usual expenses (see Su v Su, 128 AD3d 949, 950 [2d Dept 2015]; Woodford v Woodford, 100 AD3d 875, 877 [2d Dept 2012]; Khaira v Khaira, 93 AD3d 194, 200 [1st Dept 2012]; Shawn M v Jacqueline M, 52 Misc 3d 1225[A], 8, 2016 NY Slip Op 51289[U] [Sup Ct, Kings County 2016]). Additionally, the child support award under the Child Support Standards Act includes the cost of shelter for the child (see D'Alauro v D'Alauro, 150 AD3d 675 [2d Dept 2017]; Gahagan v Gahagan, 76 AD3d 538 [2d Dept 2010]; Maksoud v Maksoud, 71 AD3d 643, 644 [2d Dept 2010]; Skladanek v Skladanek, 60 AD3d 1035, 1037 [2d Dept 2009]; Higgins v Higgins, 50 AD3d 852, 854 [2d Dept 2008]; Sicurelli v Sicurelli, 285 AD2d 541, 542 [2d Dept 2001]). Indeed, the court may not order Plaintiff to make double shelter payments (see Iacono v Iacono, 145 AD3d 972, 974 [2d Dept 2016]; Dougherty v Dougherty, 131 AD3d 916, 919 [2d Dept 2015]; Davidman v Davidman, 97 AD3d 627, 628 [2d Dept 2012]; Mosso v Mosso, 84 AD3d 757, 759 [2d Dept 2011]). Moreover, it is appropriate for Defendant to pay carrying costs during her exclusive use and occupancy of the marital residence (see O'Brien v O'Brien, 88 AD3d 775, 776 [2d Dept 2011]; Soles v Soles, 41 AD3d 904, 906 [3rd Dept 2007]; Woodford, 100 AD3d at 877; Wolfe, 111 AD2d at 810; see also Francis v Francis, 111 AD3d 454, 455 [1st Dept 2013]; cf. Higgins v Higgins, 50 AD3d 852, 854 [2d Dept 2008]). Accordingly, while Defendant receives temporary maintenance [*5]and/or child support and exclusively occupies the marital residence, she shall pay 100% of the carrying costs (see Mosso, 84 AD3d at 759; Allison B, 54 Misc 3d at 4).

The court grants Defendant's motion to appoint an appraiser to value the marital residence as well as an appraiser to value Plaintiff's business (see URTC § 202.18). In equitably distributing property, the court may consider one spouse's direct or indirect contributions to the other's business, including staying at home to take care of children so that the other spouse can work (see Repetti v Repetti, 147 AD3d 1094, 1098 [2d Dept 2017]; L'Esperance v L'Esperance, 243 AD2d 446, 447 [2d Dept 1997]; see also Nissen, 17 AD3d at 821; Hiatt v Tremper-Hiatt, 6 AD3d 1014, 1015 [3rd Dept 2004]). Additionally, the parties' 2015 and 2016 joint tax returns reflect that Plaintiff's business formerly employed Defendant. Accordingly, the court directs the parties to agree on an appraiser to value the marital residence as well as Plaintiff's business. If the parties cannot agree on an appraiser, the court will appoint one. Plaintiff and Defendant each shall pay 50% of the cost of the appraisals, subject to reallocation at trial.

Finally, the court grants Defendant's motion for interim counsel fees but denies her motion for prospective fees. The award of interim counsel fees is within the sound discretion of the trial court (see Prichep v Prichep, 52 AD3d 61, 64-65 [2d Dept 2008]). There is "a rebuttable presumption that counsel fees shall be awarded to the less monied spouse" (DRL § 237[a]). Nevertheless, the movant must support a request for reimbursement of counsel fees by detailed billing documentation, including the time expended for each service rendered, so that the court may determine whether the amount sought is reasonable (see Fackelman v Fackelman, 71 AD3d 724 [2d Dept 2010]). Indeed, the movant must submit an affidavit from his attorney which specifies "the amount of any retainer, the amounts paid and still owing thereunder, the hourly amount charged by the attorney, the amounts paid, or to be paid, any experts, and any additional costs, disbursements or expenses" (DRL § 237[a]). Furthermore, a motion for interim counsel fees must contain proof of periodic billing at least every sixty (60) days (see Montoya v Montoya, 143 AD3d 865 [2d Dept 2016]); an itemized invoice of the attorney's work (see 22 NYCRR 1400.2); an up-to-date and complete net worth statement; and a retainer agreement (see Grald v Grald, 33 AD3d 922 [2d Dept 2006]). Additionally, a motion for prospective fees must include an analysis of anticipated future issues; a general discussion of the complexity of the matter; and an approximation of anticipated legal billing hours required to resolve the matter (see Mimran v Mimran, 83 AD3d 550 [1st Dept 2011]).

To support her motion for interim counsel fees, Defendant submits an attorney affirmation accompanied by proof of periodic billing every thirty (30) days as well as itemized invoices for services rendered; her recent net worth statement; and the retainer agreement. Because Plaintiff is the monied spouse and Defendant currently has zero income, Plaintiff shall pay directly to Defendant's attorney [FN5] , within thirty (30) days of this decision and order, 100% of her interim counsel fees in the amount of $26,896.75, subject to reallocation at trial. Plaintiff [*6]shall receive a credit for any payments towards this amount which he previously made [FN6] .

The court declines to award Defendant prospective counsel fees based upon her generalized approximations (cf. Covington v Covington, 249 AD2d 735 [3rd Dept 1998]). Moreover, the court is disinclined to provide an incentive to proceed to trial when settlement remains possible.

Finally, because pendente lite awards are temporary, courts accept that they may involve some degree of inequity in the interest of judicial economy (see Kim v Schiller, 112 AD3d 671, 677 [2d Dept 2013]). The best remedy for any perceived inequity is a speedy trial (see id.; Wald v Wald, 44 AD3d 848, 850 [2d Dept 2007]; Palmeri v Palmeri, 87 AD3d 572, 573 [2d Dept 2011]).

Any application not specifically addressed herein is denied.

The foregoing constitutes the decision and order of this Court.

Dated: August 31, 2017

Kew Gardens, New York

Hon. Elisa S. Koenderman, ASCJ Footnotes

Footnote 1:Although Plaintiff contends that Referee Friederwitzer recently directed Defendant to seek full time employment, he does not refute these allegations.

Footnote 2:The order of protection expires on May 11, 2018.

Footnote 3:The return is attached to Plaintiff's net worth statement.

Footnote 4:The return is attached as an exhibit to Plaintiff's Reply Affidavit.

Footnote 5:This order refers to Hoffman and Behar, PLLC. The court is aware that on August 24, 2017, Defendant filed a Consent to Change Attorney Form substituting Gassman Baiamonte Gruner, P.C. as counsel.

Footnote 6:Defendant's attorney states that Plaintiff has been paying her interim counsel fees and that she has a debit balance of $2,644.99.