RB v RJB

[*1] RB v RJB 2017 NY Slip Op 51962(U) Decided on November 17, 2017 Supreme Court, Warren County Muller, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 November 17, 2017
Supreme Court, Warren County

RB, Plaintiff,

against

RJB, Defendant.



64446



W. Bradley Krause, Glens Falls, for plaintiff.

RJB, Warrensburg, defendant pro se.
Robert J. Muller, J.

Plaintiff RB and defendant RJB were married on January 26, 2007 and have four children: LB ( born 2005); ARB (born 2006); AMB (born 2009); and ALB (born 2011). Plaintiff commenced this action for divorce upon the grounds of irretrievable breakdown in the relationship by the filing of a summons with notice on September 22, 2017 (see Domestic Relations Law § 170 [7]). Defendant was then personally served on September 27, 2017. Presently before the Court is plaintiff's motion for the following pendente lite relief:

(1) temporary maintenance;(2) modification of a prior Order of Custody and Visitation so as to grant plaintiff sole physical and legal custody of the children;[FN1] (3) temporary child support; and(4) interim counsel fees.

Each aspect of the motion will be addessed ad seriatim.[FN2]

Temporary Maintenance

According to plaintiff, the parties have been physically separated for approximately three years. Plaintiff indicates that defendant was giving her money for living expenses until March 2017, when he stopped — allegedly as retribution for her having filed a custody petition. Plaintiff [*2]now seeks temporary maintenance to assist with her living expenses.

At the outset, it must be noted that plaintiff's papers are inconsistent insofar as her income is concerned. Plaintiff has submitted an affidavit in support of the motion indicating that she is currently unemployed and her sole source of income is rental payments in the amount $900.00 per month — or $10.800.00 per year.[FN3] According to plaintiff, while the parties were married she earned an additional $25,000.00 per year by running a day care business in her home — but she no longer runs any such business. Plaintiff indicates that she receives food stamps, but does not indicate how much she receives in food stamps. In requesting temporary maintenance, plaintiff contends that her "income is approximately $11,000.00 per year."

Plaintiff's counsel, on the other hand, has submitted an affirmation in support of the motion stating that "[p]laintiff's imputed income is approximately $35,800.00 per year." To that end, counsel appears to include the $25,000.00 in income from the daycare business. Counsel further calculates the requested amount of temporary maintenance using the imputed income of $35,800.00.

Insofar as defendant's annual income is concerned, plaintiff's motion papers attach a copy of the parties' 2016 tax return which indicates that defendant has an adjusted annual income of $76,337.29 through his employment with Irving Consumer Products Inc.[FN4] Defendant has not disputed this amount.

The value of the food stamps received by plaintiff should be included in her annual income (see Lattuca v Lattuca, 129 AD3d 843, 845 [2015], lv dismissed 26 NY3d 1095 [2016], lv denied 28 NY3d 1099 [2016]). Such value, however, was not provided. Based upon this — as well as the representations made by counsel for plaintiff — the Court finds that the presumptively correct amount of temporary maintenance should be calculated using an annual income of $35,800.00 for plaintiff — rather than $11,000.00 — and an annual income of $76,337.29 for defendant.

This aspect of the motion is therefore granted to the extent that plaintiff is awarded temporary maintenance in the presumptively correct amount of $121.49 per week (see Domestic Relations Law § 236 [B] [5-a] [c]). Payments shall commence on Friday, November 24, 2017 and continue each Friday thereafter until further Order of the Court. The payments shall be made directly from defendant to plaintiff.

The issue of permanent maintenance is being referred to the Support Magistrate of the Family Court of Warren County by Order of Referral issued simultaneously herewith (see Family Court Act §§ 461 [c], 464 [a]).

Custody

On March 28, 2017, the Family Court of Washington County (Michelini, J.) issued an Order of Custody and Visitation on consent whereby the parties were awarded joint legal custody of the children and plaintiff was awarded sole physical custody. Defendant was to have ample parenting time, including "every other weekend from Friday to Sunday or Monday [and] two (2) days [per week] upon such days and times [as] mutually agreeable."

Plaintiff contends that the parties — both of whom recently moved to Warren County[FN5] — were unable to agree on a new school district for the children, with plaintiff enrolling them in the Queensbury Union Free School District and defendant enrolling them in the Warrensburg Central School District. Plaintiff further contends that the parties' children have all been diagnosed with Attention-Deficit/Hyperactivity Disorder and defendant "refuses to give [them] their medication." As a result, plaintiff requests that the Court modify the Order of Custody and Visitation so as to grant her sole physical and legal custody of the children.

The Court finds that these contentions are insufficient to support modification of the prior Order (compare Matter of Berezny v Raby, 145 AD3d 1356, 1358 [2016]; Matter of Rutland v O'Brien, 143 AD3d 1060, 1062 [2016]; Bowman v Engelhart, 112 AD3d 1187, 1188 [2013]). This aspect of the motion is therefore denied without prejudice.

The Order of Custody and Visitation shall remain in full force and effect unless and until a successive motion for modification is granted.

Child Support

On July 18, 2017, the Support Magistrate of the Family Court of Washington County issued a Decision and Order finding that plaintiff was not entitled to child support. The Support Magistrate stated as follows:

" [RB] acknowledged that during the school year [RJB] had more custodial time with the children than she did, and that during the summer break the custodial time is equal. [RB] testified that she does not intend for [RJB] to have more custodial time than she will once school starts again in the fall. It appears that the children have resided primarily with [RJB] since the petition was filed."

Plaintiff contends that circumstances have changed since issuance of this Decision and Order. Specifically, plaintiff contends that she now has "the children in [her] possession at least, if not more than, 50% of the time." Indeed, defendant conceded at oral argument that plaintiff has custody of the children a majority of the time.

Under the circumstances, the Court finds that plaintiff has sufficiently demonstrated that circumstances have changed and she is now entitled to child support. This aspect of the motion is therefore granted and plaintiff is awarded temporary child support in the presumptively correct amount of $417.42 per week (see Domestic Relations Law § 240 [1-b] [c]). This amount is calculated as follows:

Plaintiff Defendant Gross Income: $35,800.00 $76,337.29 Spousal maintenance: + $6,317.46-$6,317.46 TOTAL:$42,117.46 $70,019.83 Combined Parental Income:
$112,137.29
($42,117.46 + $70,019.83) Combined Child Support:
$34,762.56
($112,137.29 x .31) Percentage of Combined Child Support: 37.56%62.44% Annual Child Support: $13,056.82
(37.56% of $34,762.56) $21,705.74
(62.44% of $34,762.56) Weekly Child Support: $251.09 $417.42

Payments shall commence on Friday, November 24, 2017 and continue each Friday thereafter until further Order of the Court. The payments shall be made directly from defendant to plaintiff.

Briefly, the Court notes that

"where . . the parents' custodial arrangement splits the children's physical custody so that neither can be said to have physical custody of the children for a majority of the time, the parent having the greater pro rata share of the child support obligation, determined after application of the three-step statutory formula of the CSSA, should be identified as the 'noncustodial' parent for the purpose of support regardless of the labels employed by the parties" (Baraby v Baraby, 250 AD3d 201, 204 [1998]).

To the extent that defendant has the greater pro rata share of the child support obligation and is the noncustodial parent for purposes of support, he must continue to pay child support even if the parties begin to share custody of the children on an equal basis at some point in the future.

The issue of permanent child support is being referred to the Support Magistrate of the Family Court of Warren County by Order of Referral issued simultaneously herewith (see Family Court Act §§ 461 [c], 464 [a]).

Interim Counsel Fees

Plaintiff seeks interim counsel fees in the amount of $2,000.00, contending that she "do[es] not have the financial resources to afford an attorney to represent [her] and protect [her] interests in this matter."

Uniform Rules for Trial Courts (22 NYCRR) § 202.5 (k) (2) provides that no motion for counsel fees pendente lite "shall be heard unless the moving papers include a statement of net worth . . . ." Uniform Rules for Trial Courts (22 NYCRR) § 202.5 (k) (3) further provides that no such motion

"shall be heard unless the moving papers also include the affidavit of the movant's attorney stating the moneys, if any, received on account of such attorney's fee from the movant or any other person on behalf of the movant, the hourly amount charged by the attorney, the amounts paid, or to be paid, to counsel and any experts, and any additional costs, disbursements or expenses, and the moneys such attorney has been promised by, or the agreement made with, the movant or other persons on behalf of the movant, concerning or in payment of the fee.

Here, plaintiff has failed to submit a statement of net worth. Further, while counsel for [*3]plaintiff has submitted an affirmation, he has not included anything relative to the amount of time spent on this matter nor the amount charged thus far. Indeed, while the Court has been provided with a copy of the retainer agreement whereby plaintiff agreed to pay counsel an initial retainer of $3,500.00, it is unclear whether this retainer has in fact been paid.

Under the circumstances, this aspect of the motion is denied without prejudice.

Therefore, having considered the Affirmation of W. Bradley Krause, Esq. with exhibits attached thereto, dated September 20, 2017, submitted in support of the motion; Affidavit of RB with exhibits attached thereto, sworn to August 17, 2017, submitted in support of the motion, and oral argument having been heard on November 14, 2017 with W. Bradley Krause, Esq. appearing on behalf of plaintiff and defendant RJB appearing pro se, it is hereby

ORDERED that the motion is granted to the extent that plaintiff is awarded temporary maintenance in the amount of $121.49 per week; and it is further

ORDERED that the temporary maintenance payments shall commence on on Friday, November 24, 2017 and continue each Friday thereafter until further Order of the Court; and it is further

ORDERED that the temporary maintenance payments shall be made directly from defendant to plaintiff; and it is further

ORDERED that the motion is denied to the extent that plaintiff seeks modification of the March 28, 2017 Order of Custody and Visitation so as to grant her sole physical and legal custody of the parties' children; and it is further

ORDERED that the March 28, 2017 Order of Custody and Visitation shall remain in full force and effect unless and until a successive motion for modification is granted; and it is further

ORDERED that the motion is granted to the extent that plaintiff is awarded temporary child support in the amount of $417.42 per week; and it is further

ORDERED that the weekly child support payments shall commence on Friday, November 24, 2017 and continue each Friday thereafter until further Order of the Court; and it is further

ORDERED that the weekly child support payments shall be made directly from defendant to plaintiff; and it is further

ORDERED that the motion is denied without prejudice to the extent that plaintiff seeks interim counsel fees; and it is further

ORDERED that any relief not specifically addressed has nonetheless been considered and is hereby expressly denied.

The above constitutes the Decision and Order of this Court.

The original of this Decision and Order has been filed by the Court together with the Notice of Motion dated September 20, 2017 and the above-referenced submissions. Counsel for plaintiff is hereby directed to promptly obtain a filed copy of the Decision and Order for service with notice of entry on defendant in accordance with CPLR 5513.

Dated: November 17, 2017

Lake George, New York

ROBERT J. MULLER, J.S.C. Footnotes

Footnote 1: The notice of motion erroneously states that plaintiff is seeking sole physical and joint legal custody of the children.

Footnote 2: While defendant — who is proceeding pro se — has not submitted any written opposition, he appeared for oral argument on the motion and presented his opposition at that time.

Footnote 3: Plaintiff explains these rental payments as follows: "I received a remainder interest in real property known as 5 Spruce Street, Fort Edward, New York that I acquired from my father . . . just prior to my marriage. My father . . . retains a life estate in that real property. It is my understanding that my father . . . pays all of the carrying charges on said property however he allows me to collect and keep the rental amounts received therefrom . . . ."

Footnote 4: This tax return does not list any income for plaintiff.

Footnote 5: Plaintiff now resides in the Town of Queensbury and defendant resides in the Town of Warrensburg.