J.S. v P.S.

[*1] J.S. v P.S. 2018 NY Slip Op 28048 Decided on February 16, 2018 Supreme Court, Richmond County DiDomenico, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the printed Official Reports.

Decided on February 16, 2018
Supreme Court, Richmond County

J.S., Plaintiff

against

P.S., Defendant.



51008/2015
Catherine M. DiDomenico, J.

Recitation as required by CPLR 2219(a) of the papers considered in the review of Motion SequenceNumbers 001 & 002 Numbered

Order to Show Cause by Defendant (001), 1

Notice of Cross Motion by Plaintiff (002) 2

Opposition and Reply by Defendant3

Affidavit in Reply by Plaintiff 4

Defendant's Updated Financial Documentation Provided at Court's Request 5

_____________________________________________________________________________

Index No.51008/2015

Motion Sequence Nos.: 001; 002

DECISION AND ORDER

Present:Hon. Catherine DiDomenico

Upon the foregoing cited papers, the Decision and Order is as follows:

Defendant Wife moves by Order to Show Cause (Seq. No. 001) for various aspects of pendente lite relief, however, the parties were able to resolve many of these applications during the pendency of this case. Moreover, many other aspects of the motion were necessarily mooted by the parties' post-nuptial agreement or by the interim orders of this Court. To date, neither party has filed an application to set the post-nuptial agreement aside, accordingly, for purposes of this Decision, that agreement is valid and binding on the parties. See Lobatto v. Lobatto, 186 AD2d 39 (1st Dept. 1992).

On or about July 15, 2016, Plaintiff Husband has filed a cross motion wherein he seeks the denial of Wife's motion in its entirety, together with an Order granting him affirmative relief. However, Husband withdrew his claims for affirmative relief on the record of December 14, 2017. Instead, Husband requests that his cross motion be deemed his opposition to Wife's [*2]application. In sum and substance, Husband argues that Wife's application is precluded by the parties' post-nuptial agreement, which he claims that his Wife simply "ignores" in her moving papers.

In regard to the post-nuptial agreement, Wife's reply papers make reference to what would, or would not, be permissible if the Court were to "set the agreement aside." However, as indicated above, Wife has not made an application for this Court to set the agreement aside.Moreover, to the extent that Wife's Reply could be construed to be an application to set the agreement aside, that application can certainly not be raised for the first time in reply papers. See Northern Blvd. Corona, LLC. v. Northern Blvd. Prop. LLC. 2018 NY Slip Op 00428 (2d Dept. 2018); See also, Wells Fargo Bank, N.A. v. Osias, 2017 NY Slip Op 09195 (2d Dept. 2017).

The present motion appeared on this Court's calendar for oral argument on December 14, 2017. The issues remaining in Wife's motion that require a ruling from this Court are her request for: (a) pendente lite child support; (b) an allocation of unreimbursed medical expenses; (c) an award of temporary maintenance; and (d) an award of interim counsel fees.[FN1]

Factual Background

The parties were married in June of 2005 in the State of New Jersey. The present action for divorce was commenced with the filing of a Summons and Complaint in or around November of 2015.Accordingly, this is a marriage of moderate duration. There is one child of this union, J. S. Jr. who is currently nine years old.

Defendant Wife is 40 years old and currently employed as a teacher on a part time basis for an entity known as "Behavior Experts." Wife's pay stubs indicate that she is a "private contractor" for that entity. Wife also admits that she is a private tutor without indicating the amount of income she derives from that employment. Husband alleges in his opposition that Wife earns at least $2,000 a month from tutoring. At the time the present motion was filed, Wife failed to provide tax documentation as an attachment to her Statement of Net Worth. However, Wife has provided her 2016 tax documentation in response to this Court's request for the same during oral argument of the motion. According to her 2016 tax return, Wife earned the gross sum of $14,468. Wife has also provided a letter from her employer indicating that as of December 15, 2017 she had earned the sum of $17,000 (year to date). Wife has a Master's Degree in education and is currently taking classes to become certified in special education. Wife self-reports that her health is "good."

Plaintiff Husband is 46years old, and is a retired electrician. It is undisputed that Husband has been declared to be "disabled" although he does not reveal the nature of his [*3]disability in his papers. According to his Affidavit, and his Sworn Statement of Net Worth, Husband earns the sum of $2,400 a month from a union pension, and $2,023 a month from social security disability. This sum, prorated over a year, results in an annual income of approximately $53,076. It is unclear from the papers before the Court how much of this annual income is taxable. The most recent tax return provided by Husband is from 2015. According to this tax return Husband earned a gross sum of $43,167. In terms of education, Husband has indicated that he has earned a G.E.D. In terms of health, Husband reiterates that he is "disabled" without providing the nature of his disability.

On or about October 21, 2014, the parties entered into a post-nuptial agreement. To date, neither party has made an application to set the same aside, or for Summary Judgment to enforce its terms.[FN2] As indicated above, and argued by Husband in opposition, certain aspects of Wife's motion have been necessarily mooted by the post-nuptial agreement.

Decision

Temporary Maintenance

Wife seeks an award of pendente lite maintenance.In support of her claim, Wife argues that she is the less monied spouse in this action, and thus is entitled to a presumptive award of maintenance. Husband, in opposition, argues that regardless of the parties' comparative incomes, the terms of their post-nuptial agreement precludes an award of maintenance to either party. The relevant clause (clause III)of the parties' agreement is found on page 12, and reads as follows:

"In the event of a divorce, dissolution of marriage, legal separation, or annulment of marriage, or the pendency of such an action, neither of the parties shall be liable for the support or maintenance of the other party except as set forth herein. The parties each represent and acknowledge to the other that the resources, educational training and/or income of each will be sufficient to provide for his or her own proper maintenance or support from the other party. Each party hereto accordingly renounces and irrevocably waives any claim which he or she may have against the other for alimony, maintenance or support and the parties agree that their respective duties to support and maintain the other in the future are extinguished in consideration of the mutual covenants and provisions contained in this agreement. Neither party shall, under any circumstances, ordinary or extraordinary, shall [sic] seek or require from the other any alimony, maintenance or similar support."(emphasis added).

When determining if an award of maintenance is precluded by a nuptial agreement, the [*4]Court is directed to construe the terms of the contract in accordance with the parties' intent. See Davis v. Davis, 149 AD3d 483 (1st Dept. 2017). In so doing, the intent of the parties is to be gleaned from the "plain meaning" of the specific language used in the agreement. See Van Kipnis v. Van Kipnis, 11 NY3d 573 (2008).The appellate courts of New York State have repeatedly warned counsel of a distinction between a "general" waiver of maintenance, and a waiver of temporary maintenance. It is well settled that a general waiver of maintenance, that does not specifically address the issue of temporary maintenance, will be insufficient to preclude an application for pendente lite support. See Kashman v. Kashman, 147 AD3d 1034 (2d Dept. 2017); See also, See Kravetz v. Kravetz, 150 AD3d 1214 (2d dept. 2017). However, there is no "magic language" that must be used to indicate a waiver of temporary maintenance. Any language that clearly indicates the intent of the parties may be sufficient. See Anonymous v. Anonymous, 137 AD3d 583 (1st Dept. 2016). [The words "in the future" are sufficient to indicate any time after the signing of the agreement, which would necessarily include an award of pendente lite maintenance.]

Here, the parties indicate in their agreement that they mutually waived the right to seek support "under any circumstances." Moreover, the parties further indicate they anticipated that a claim for support could be raised in the "event of a divorce, dissolution of marriage, legal separation, or annulment of marriage, or the pendency of such an action." As the term "pendente lite" is used to describe applications made during the pendency of an action [FN3] , it is clear from the language used that the parties intended to waive temporary awards of maintenance. In addition, the term "under any circumstances" necessarily includes the circumstance of a pendente lite application. Accordingly, Wife's application for pendente lite maintenance is hereby denied as precluded by the terms of the parties' post-nuptial agreement. See Demis v. Demis, 548 N.Y.S.2d 67 (3rd Dept. 1989); See also, Trbovich v. Trobvich, 122 AD3d 1381 (4th Dept. 2014).

Child Support

Wife makes an application for child support for the parties' child J.S. (age 10) according to the Child Support Standards Act Guidelines. While no custodial Orders have been entered for J.S., it is undisputed that he currently resides with his mother, subject to this Court's orders granting Husband parenting time.

The Child Support Standards Act (CSSA) presumptively results in the correct amount of child support to be awarded to the custodial parent. When calculating pendente lite child support the Court may use the Child Support Standards Act as guidance in fashioning an award, however it is not required to apply those guidelines to a temporary award. See Eckstein v. Eckstein, 251 AD2d 537 (2d Dept. 1998), See also George v. George, 192 AD2d 693 (2d Dept. 1993); Nordgren v. Nordgren, 237 AD2d 498 (2d Dept. 1997). However, when sufficient financial information is available to the Court, it is preferable to apply the CSSA guidelines. See Davydova v. Sasonov, 109 AD3d 955 (2d Dept. 2013).When calculating child support, there is currently a statutory child support cap of $143,000 of combined parental income, however, the [*5]Court has authority to exceed this amount where appropriately supported by the record. See Matter of Keith v. Lawrence, 113 AD3d 615 (2d Dept. 2014).

The determination of each parties' respective income for the purpose of calculating child support is controlled by the terms of the Child Support Standards Act. See DRL §236B [5-a][b][4]. The Court is directed to utilize income figures as they were, or should have been, reported on the parties' most recently filed tax return. See DRL§ 240(1-b)(b)(5)(i); See also Miller v. Miller, 18 AD3d 629 (2d Dept. 2005). However, the Court has discretionary authority to use more recent income information where appropriate, if that income is more reflective of a party's earning capacity. See Matter of Lynn v. Kroenung, 97 AD3d 822 (2d Dept. 2012); See Also Eberhart-Davis v. Davis, 71 AD3d 1487 (4th Dept. 2010); Pauk v. Pauk, 232 AD2d 386 (2d Dept. 1996).

The last tax return provided by Husband is from 2015. According to that tax return, Husband earned the gross sum of $43,167.However, Wife argues that Husband actually earns more income than he reports, based upon his admissions before the Court. As indicated above, Husband has admitted that he is currently unemployed and receives $2,400 a month in pension benefits from his prior employment, together with $2,023 a month from social security disability.[FN4] It is unclear from Husband's financial documentation how much of this income is taxable. Utilizing these figures, prorated over a year, Husband's gross income amounts to an annual sum of $53,076. While Wife also argues that Husband earns additional monies doing "side jobs" as an electrician, she has raised this allegation for the first time in her reply papers, accordingly, the Court cannot consider the same.See Matter of Government Employees Ins. Co. v. Suffolk County Police Dept., 152 AD3d 517 (2d Dept. 2017). Moreover, Wife has not provided any evidence as to whatsum of money, if any, Husband earns from this alleged employment. Wife may raise the issue of Husband's alleged side employment at trial.

After a consideration of the totality of the circumstances, the Court finds that it is appropriate to utilize Husband's admissions to calculate his income for child support purposes. Accordingly, for the calculations herein, Husband's income shall be $53,076. This Court finds that this amount is reflective of Husband's actual earning capacity. See Matter of Wei-Fisher v. Michael, 155 AD3d 883 (2d Dept. 2017). From this gross amount,the Court is required to subtract certain statutory tax deductions that were "actually paid". See Kaufman v. Kaufman, 102 AD3d 925 (2d Dept. 2013).However, it is unclear what applicable taxes, if any, Husband has paid on his income. Notably, while Husband's Statement of Net Worth indicates his monthly income, the section intended to reflect his monthly taxes has been left blank. Accordingly, the entirety of Husband's income shall be utilized for child support purposes.

Wife's earns income as a 1099 employee for a company known as Behavior Experts. The most recent tax return provided by Wife is from 2016. According to that tax return, Wife earned a gross sum of $13,446. However, in addition to her 2016 tax return, Wife has provided a letter [*6]from her employer indicating that she had earned the sum of $17,000 as of December 15, 2017 (year to date). As it did, with Husband, this Court finds that the $17,000 figure is most reflective of Wife's actual earning capacity, as it represents income from the last tax year. See Matter of Culhane v. Holt, 28 AD3d 251 (1st Dept. 2006). While Husband raises an argument that Wife earns upwards of $2,000 a month in private tutoring, he has provided no evidence as to any sum of money earned by Wife in that capacity. Husband may raise the issue of Wife's side employment at trial.

Utilizing these figures, the parties' combined parental income for the purposes of calculating child support amounts to $70,076. There is one subject child of this marriage. Accordingly, the applicable CSSA guidelines percentage is 17%. Seventeen percent of $70,076 is $11,913, which represents both parents combined child support obligation. Husband's pro-rata share of this obligation is 76% and Wife's share is 24%. Seventy six percent of $11,913 is $9,054 which represents Husband's annual pendente lite child support obligation. This obligation amounts to a payment of $755a month,. The first payment of the same shall be made on or before the end of this month (February 2018). Successive monthly payments shall be made on or before the 5th of every month.

Retroactivity

It is well settled law that child support awards are retroactive to the first time the application was made. Here, Wife's pendente lite child support award is retroactive to the service of Wife's motion. See Signorelli v. Signorelli, 50 AD3d 772 (2d Dept. 2008).

Husband is entitled to a credit for interim child support payments ordered by this Court. See Schack v. Schack, 128 AD3d 941 (2d Dept. 2015); See also, Pascale v. Pascale, 226 AD2d 439 (2d Dept. 1996). However, Husband is notentitled to credit for voluntary payments made for the benefit of his child (such as clothes and food). See LiGreci v. LiGreci, 87 AD3d 722 (2d Dept. 2011); Heiny v. Heiny, 74 AD3d 1284 (2d Dept. 2010); See also, Mayeri v. Mayeri, 220 AD2d 647 (2d Dept. 1995).

Wife's application for support was served on or around June 15, 2016. Accordingly, since Wife's application was initially filed approximately 20 months before the first support payment mandated herein, Husband owes the sum of $15,100 in temporary child support arrears ($755x 20 months). According to the official Court file, there have been no interim orders regarding child support, accordingly, this Court is unaware of any credits owed to Husband.

Husband shall be required to pay an additional sum of $350a month on top of his support obligations towards retroactive arrears, until said arrears are paid in full.

Child Support Add-On's

Wife requests an Order directing Husband to pay his pro rata share of the subject child's unreimbursed medical expenses together with necessary child care expenses. Husband, in opposition, does not directly address the issue of medical expenses, however he argues that he is available for child care such that Wife should not have to hire professional child care. However, [*7]that argument is not persuasive as it ignores this Court's orders which control Husband's parental access. Husband's current visitation is supervised by a social worker, Ms. Eileen Montrose. (See SFO 12/14/17). Accordingly, this Court need not even address Husband's argument, as he is not a suitable substitute for child care at this time.

Accordingly, to the extent that Wife seeks contribution to expenses directly relating to the subject children, her application is hereby granted. For the reasons set forth at length above, the Court has determined that the pro rata allocation pursuant to the CSSA guidelines is 76% to Husband and 24% to Wife. Therefore, Husband shall have an obligation to pay his 76% share of any reasonable and necessary unreimbursed medical bill presented to him, or his counsel, within 20 days of receipt. See Matter of McNair v. Fenyn, 100 AD3d 903 (2d Dept. 2012). Husband shall also be responsible for 76% of all reasonable and necessary child care expenses while Wife is working. See Klauer v. Abeliovich, 149 AD3d 617 (1st Dept. 2017). Husband is hereby directed to pay his 76% share of reasonable and necessary child care expenses within 20 days receipt of a bill reflecting the same.

Counsel Fees

Wife seeks an award of pendente lite counsel fees in the amount of $7,500pursuant to DRL §237(a).Husband opposes that application arguing that Wife is actually the monied spouse in this action, and moreover, Husband makes a general argument that the post-nuptial agreement should be enforced. A review of that agreement reveals that it addresses the issue of counsel fees.

Pursuant to DRL §237(a), a lawyer who represents a non-monied spouse may seek attorney's fees from the monied spouse in the divorce action. See O'Connor v. O'Connor, 89 AD3d 703, 704 (2nd Dept. 2011). Effective October 12, 2010, DRL §237(a)(5) creates a rebuttable presumption that counsel fees shall be awarded to the less monied spouse.

Husband first argues that the parties' post-nuptial agreement precludes the entirety of Wife's application. As related to the issue of counsel fees, the parties' post-nuptial agreement reads as follows:

"Each party shall be responsible for full payment and discharge for all services rendered and disbursements incurred by his or her respective attorneys, accountants, appraisers or other experts and professionals in the rendition of services in connection with this action, the negotiation and consummation of this Agreement, or otherwise."

Generally speaking, parties entering into a nuptial agreement may choose to waive counsel fees regardless of the application of DRL §237. See Kashman v. Kashman, 147 AD3d 1034 (2d Dept. 2017). However, agreements waiving counsel fees must be specific to exactly what the parties are intending to waive. See Kashman, Supra, See Also McKenna v. McKenna, 121 AD3d 864 (2d Dept. 2014). An agreement containing a general waiver of counsel fees is insufficient to waive a temporary or interim award of counsel fees. See Vinik v. Lee, 96 AD3d 522 (1st Dept. 2012).

Here, the Court finds that the language utilized by the parties is vague, and thus insufficient to preclude Wife's application for counsel fees. In their agreement, the parties indicate that they would each be personally responsible for the payment of their attorneys in relation to "this action, the negotiation and consummation of this Agreement, or otherwise."

While it is unclear what action the parties were referring to when they stated, "this action," they certainly did not intend the present action for divorce, as the agreement pre-dated the commencement of this divorce action by approximately one year. While the words "negotiation and consummation of this Agreement" are clear, they do not apply to the present action as they refer to the preparation of the post-nuptial agreement. Therefore, the only words left to be construed are "or otherwise." This Court finds that the words "or otherwise" are too vague to be an enforceable waiver of counsel fees in this action, and are certainly too vague to constitute a waiver of interim counsel fees, which must be specifically referencedin order to be effectively waived. See Solomon v. Solomon, 224 AD2d 331 (1st Dept. 1996); See also, McKenna v. McKenna, 121 AD3d 864 (2d Dept. 2014).

Turning to the substance of Wife's application, she argues that she is the non-monied spouse in this action, and thus that she is presumptively entitled to an award of counsel fees. In opposition, Husband argues that he isactually the non-monied spouse in this action, and that Wife's application should be denied. For the detailed reasons set forth above, it is clear that Husband earns more income than Wife such that he is the more monied spouse. However, that does not end the Court's analysis.

As set forth above, Husband has been determined to be the more monied spouse in this action, however, it is undisputed that Wife is gainfully employed. In addition, both Husband and Wife agree that Wife earns an undisclosed amount of supplemental income as a private tutor. Moreover, under the terms of this Decision and Order Husband shall be responsible for the payment of $755 a month in child support, together with $350 a month towards child support arrears. This award will necessarily decrease Husband's access to funds, while increasing Wife's spending power. Finally,during the course of this action, the parties sold the former marital home resulting in proceeds of approximately $70,000. While this money has not yet been distributed, it was divided evenly and deposited into each attorneys' escrow account. (See Short Form Order dated 8/2/17). During oral argument of the present motion, both attorneys indicated that they were holding approximately $35,000. (Tr. 12/14/17 pg.15).

Accordingly, under the totality of the circumstances presented, and after considering the parties' respective incomes, financial obligations, the amount of work already concluded, and the issues reasonably anticipated in the future, Wife is hereby awarded counsel fees in the amount of $3,750. See DRL §237(a); See also, Maliah-Dupass v. Dupass, 140 AD3d 832 (2d Dept. 2016).This award represents a 50% contribution to the amount sought by Wife, and thus reflects both the fact that Husband is the more-monied spouse, together with the fact that Wife has income and assets sufficient to contribute to her own attorney's fees. See DRL §237(a); see also,Chaudry v. Chaudry, 95 AD3d 1058 (2d Dept. 2012); Suppa v Suppa, 112 AD3d 1327 (4th Dept. 2013)

Husband is hereby directed to pay the counsel fees awarded herein ($3,750) within 30 days of this Order. In the even that he wishes to do so, Husband may direct his attorney to release the sum of $3,750 from the money she is currently holding in escrow. This amount will be deducted from Husband's equitable share of the monies held in escrow at trial. This award does not preclude future applications for counsel fees, if appropriate, at or before the time of trial.

This constitutes the Decision and Order of the Court on all issues raised in relation to

motion sequence numbers 001 and 002.Any issues raised in either motion that were not specifically addressed herein, or resolved by prior Order of the Court, are hereby referred to the Trial Court.

Dated:February 16, 2018

Hon. Catherine M. DiDomenico

Acting Justice Supreme Court Footnotes

Footnote 1:Aspect A of the motion was withdrawn by counsel; Aspects B,C,F,G,I,K,O have been rendered moot by the passage of time, the parties' prenuptial agreement, or the interim orders of this Court; Aspects L & M are covered by Automatic Orders of this Court. See DRL §236(B)(2)(b);22 NYCRR 202.16(a).

Footnote 2:Wife succinctly states that she is not seeking to set aside the agreement at this time, however she is reserving the right to do so at a later time, or at trial. See Wife's Affidavit Para. 34-36. It is axiomatic that the agreement need be deemed valid until it is proven to be invalid. While Husband briefly mentions summary judgment in his cross motion, he has not properly filed a motion for the same, and moreover, has withdrawn all requests for affirmative relief on the record of December 14, 2017.

Footnote 3:According to Black's Law Dictionary, Pendente Lite is defined as "Pending the lawsuit; during the actual progress of a suit; during litigation."

Footnote 4:Husband admits these income figures in both his opposition papers and his Sworn Statement of Net Worth.