R.W. v D.S

[*1] R.W. v D.S 2022 NY Slip Op 50733(U) Decided on July 1, 2022 Supreme Court, New York County Chesler, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 July 1, 2022
Supreme Court, New York County

R.W., Plaintiff,

against

D.S., Defendant.



Index No. 365096/2022



Counsel for Defendant

Advocate, LLP

805 Third Avenue, 20th Floor

New York, New York 10022

By: Jason A. Advocate, Esq.

Counsel for Plaintiff

Davidoff Hutcher & Citron LLP

605 Third Avenue

New York, NY 10158

By: Caroline L. Hall, Esq.
Ariel D. Chesler, J.

The following e-filed documents, listed by NYSCEF document number (Motion 001) 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109 were read on this motion to/for INTERIM RELIEF.

Upon the foregoing documents, it is

In this motion for pendente lite relief, Defendant seeks exclusive use of the marital apartment, an award of spousal support and the payment of various carrying charges, the return of monies removed from a joint account, the return of his Passport, the maintenance of the status quo of the parties' London apartment, and an award of counsel fees. Plaintiff cross-moves for access to an email account, to prevent the removal of items from the Plaza apartment, exclusive use of the London apartment, and to strike certain confidential information from the moving papers.

The parties met in Rome and were married in London on October 20, 2008. This action was commenced on February 25, 2022. Plaintiff is 46 years old and Defendant is 35 years old. Plaintiff is a British citizen and Defendant is an Italian citizen. In April 2021, they both received Green Cards to reside in the United States. Plaintiff has held positions as a Chief People Officer and Executive Vice President and the parties moved to New York in 2015 in order to advance Plaintiff's career. Indeed, Plaintiff was the sole wage earner throughout the marriage. Defendant holds degrees in art and has published a book but has not been employed or earned income during the entire marriage.

The parties have a rental apartment in the iconic Plaza Hotel on Central Park South, own a Townhouse on the Upper East Side and own an apartment in London. The parties have resided in luxury residences, traveled throughout Europe, Asia, the Middle East and beyond, staying at Five-Star Hotels, and ate at the finest restaurants. They also purchased clothing from expensive boutique shops such as Louis Vuitton where they have a private shopper. The parties also own valuable jewelry and have purchased art from Christie's and Sotheby's.

A number of the issues raised in the motion are moot or resolved on consent. Defendant's passport has been returned. The parties both agree that Plaintiff shall have exclusive use of the townhouse and that Defendant shall exclusive use of the Plaza apartment. Plaintiff also agrees to pay the carrying costs on the Plaza apartment (and related utilities), the cost of the parties' storage unit, as well as the carrying costs on the Townhouse and the London apartment. The Court notes that due to asbestos discovered at the Townhouse Plaintiff is also covering the cost of his own temporary sublet apartment ($10,000 per month) while the Townhouse is made habitable.

On May 13, 2022 the parties executed a stipulation with regard to conducting an inventory and preserving the property in the Plaza apartment and the storage unit. The parties are directed to comply with their stipulation and it is further Ordered that neither party may remove any valuable property from any of the marital residences or storage units such as artwork or furniture, except for personal possessions such as clothing, or as agreed to by the parties in writing.

Transfer of Assets

Regarding the $345,000 which Plaintiff transferred from the parties' joint bank accounts to a new account, the submissions support that this was done to preserve the assets due to a fraud concern on the account. However, Plaintiff must ensure that Defendant has all the information for the new account and that the funds are not moved or depleted without permission of the Court or agreement of the parties.

[*2]Confidential Information

As to the concerns raised by Plaintiff relating to confidential information submitted on the motion, to the extent confidential salaries or information of other executives were disclosed in exhibits the same are stricken or must be redacted. Moving forward, the parties and counsel should discuss and resolve any related concerns about confidentiality and to the extent necessary sign a confidentiality agreement.

London Apartment

The parties disagree about the use of the parties' jointly owned London apartment. There appears to be no question that the parties agreed to permit their nieces to reside in the apartment. While Plaintiff requests exclusive use of the London apartment, such request is not warranted particularly since both parties primarily reside in New York and there is no emergency or other immediate need for exclusive use. Plaintiff may certainly visit the apartment to conduct an inventory. However, the Court declines to award Plaintiff exclusive use or disturb the current status quo use of the apartment. Considering the income, assets, and other properties owned by Plaintiff in London, there is no emergency need for Plaintiff to stay in this joint London apartment. If Plaintiff travels to London this summer, he can stay with family or can stay in a hotel or short-term rental. The parties should have further discussions about the future use of the London apartment, including how long their nieces should remain there, and should enter into an appropriate stipulation as to the pendente lite use or ultimate distribution of the apartment.

The Email Account

A significant amount of energy and motion practice has been spent on the parties' dispute over an email account — XXXX@hotmail.co.uk. The Court has already directed that the entire account and all its emails (save any Attorney-Client privileged material) be copied and turned over to Plaintiff, which has been done. The Court also previously directed Defendant to create an automatic reply message on the account directing emailers to each of the party's individual email accounts, which has also been done. In Motion Sequence No.2, the Court has separately quashed a subpoena which Plaintiff served on Microsoft in order to obtain access to the account. At this point, nobody should be using this email account and it should be preserved for purposes of this litigation and the parties should be using their own individual email accounts for regular communications.

Plaintiff is not satisfied with what was turned over and believes there were more documents in files maintained in this email account. Plaintiff can and should make demands to Defendant to produce and exchange any relevant documents. Further, Plaintiff can seek such documents from accountants, doctors, attorneys and other third parties as needed.

Although both parties may have used this email account at certain times, and files were stored in the account for the benefit of both parties, the evidence submitted supports Defendant's contention that it is primarily his account. Accordingly, Plaintiff's requests for the password to the account, for a forensic review of the account, or for a Special Master, are denied without prejudice to renewal if there is a demonstrated need for a forensic or other review of the account as this litigation progresses. In other words, the parties must first engage in the normal discovery [*3]process before engaging in a fishing expedition on this email account.

Temporary Maintenance

Pursuant to DRL § 236(B)(5-a), courts must arrive at a presumptive award of temporary maintenance by first determining the parties' incomes, based on the parties' most recently filed tax returns and in accordance with the definition of income set forth in the Child Support Standards Act (see DRL § 240[1-b][b][5]). After this determination is made, the court must then perform a series of calculations using those figures. The final number that is derived through this process is the presumptive award. Deviation from the presumptive award, whereby a court orders the higher-income spouse to pay the lower-income spouse a greater or lesser amount, must be done according to a series of factors.

DRL § 236(B)(5-a) calls for the parties' income to be determined by their most recent tax returns. According to the parties' 2020 tax return Plaintiff earned an adjusted gross income of $7,582,953. Plaintiff's 2019 W-2 shows income of $866,770.63, Plaintiff's 2020 W-2 shows income of $7,536,221.20, and Plaintiff's 2021 W-2 shows income of $816,428.32. In addition, under the terms of a severance agreement, Plaintiff is receiving more than 2 Million dollars between March 2022 and March 2023. Defendant's 1099 forms from 2019 and 2020 show royalty income of less than $100 in each year.

Although the most recent tax returns show income of more than 7 million dollars, a review of Plaintiff's income history demonstrates an average income of 1,050,000 inclusive of bonuses. Indeed, his severance package of more than 2 million dollars represents 2 years of pay. Thus, the figure the Court will use for his income is $1,050,000.

Further, although Defendant is employable and will have to seek employment immediately, there is no basis to impute income to him at this time, particularly since there is no earnings history and no actual income he is receiving from any source.

In accordance with DRL § 236B(5-a)(c)(1), the presumptive award of temporary maintenance is calculated as follows: 30% of the payor's income up to the cap of $203,000 (which is $60,900) minus 20% of the payee's income which is 0. The result is therefore $60,900 or $5,075 per month. The second calculation results in the higher amount of $81,200. However, Defendant, as the payee spouse, is presumptively entitled to the lower of the figures calculated in subsections (a) and (b) (DRL § 236B[5-a][c][1][d]).

The Court next considers whether upon review of the statutory factors awarding the guideline temporary maintenance would be unjust and inappropriate (see DRL § 236 (B) (5-a)(h)(1)). The parties were married for 14 years. The Plaintiff is 46 years old and the Defendant is 35 years old. Neither reports health issues. Defendant has not earned income during the entirety of the marriage, has attended school, and worked on academic publications which earned little to no income. He also moved to New York to advance Plaintiff's career. Defendant needs spousal support so that he can enter the workforce and begin supporting himself. Moreover, the Court considers the standard of living during the marriage and the vast difference between the parties' present and future earning capacities.

In determining an appropriate level of temporary maintenance, the Court also considers the significant carrying costs being covered by Plaintiff, including his own sublet apartment, the Plaza apartment, the Townhouse and the London apartment. In this regard, the Court does not believe it appropriate or lawful to award Defendant a double shelter allowance.

Upon consideration of the above stated factors, the Court will consider income above the statutory cap up to a total income of $800,000. Courts do not have to follow the statutory formula when they deviate from the statutory cap (see Warshaw v. Warshaw, 173 AD3d 582, 583-584 1st Dept 2019 ["calculation of maintenance award over the income cap is not based on an 'automatic formula but is based upon a set factors enunciated in DRL 236 (b) (5-a) (h) (1)]).

Utilizing the adjusted income cap and the formula results in above-cap maintenance of $179,100, which results in a total adjusted cap maintenance of $240,000 or $20,000 per month. However, upon consideration of the various factors, the Court orders a total interim maintenance award of $21,814 per month. More specifically, Plaintiff shall continue to directly pay the rent on the Plaza apartment and various utilities which total $11,814 per month. In addition, on or before the 15th day of each month, Plaintiff shall pay Defendant $10,000.

The Court notes, however, that such award of maintenance is not permanent. In fact, based on the length of the marriage — 13 plus years — the advisory schedule provides that the duration of maintenance would be between 2 and 4 years.

Counsel Fees

In matrimonial actions, the Court has discretion to direct one party to pay counsel fees for the opposing party (Domestic Relations Law ["DRL"] § 237). DRL § 237 further creates a rebuttable presumption that counsel fees shall be awarded to the non-monied spouse. This presumption reflects the strong policy concern of ensuring "that marital litigation is shaped not by the power of the bankroll but by the power of the evidence" (Charpie v Charpie, 271 AD2d 169, 170 [1st Dept 2000]). It is therefore especially important to award counsel fees for the non-monied spouse when there is a substantial discrepancy between the incomes of the parties (id. at 171). However, in addition to looking at the incomes of the parties, "in exercising its discretionary power to award counsel fees, a court should review . . . all the other circumstances of the case, which may include the relative merit of the parties' positions" (DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]).

In this case, there is no question that Plaintiff is the monied spouse and that Defendant has no income or significant liquid assets and has not worked for a number of years. Further, the Court also considers the circumstances of this case and the merits of the parties' positions. Defendant has supported his request for counsel fees with his Attorney's affirmation, retainer agreement and invoices.

Thus, having considered the vast difference in the parties' incomes and assets, the positions of the parties and the motion practice conducted thus far, the Plaintiff is directed to pay $75,000 as and for the Defendant's interim counsel fees which are subject to reallocation at trial and without prejudice to further applications.

Accordingly, it is

ORDERED that the issue of Defendant's passport is moot; and it is further

ORDERED that Plaintiff shall have exclusive use of the Townhouse and Defendant shall have exclusive use of the Plaza apartment; and it is further

ORDERED that Plaintiff shall continue to pay the carrying costs on the Plaza apartment (and related utilities), the cost of the parties' storage unit, as well as the carrying costs on the Townhouse and the London apartment; and it is further

ORDERED that any confidential information submitted on the motion shall be stricken [*4]or redacted; and it is further

ORDERED that Plaintiff shall provide Defendant all information as to the bank account now holding the parties' joint monies and shall not transfer or deplete said account without permission of the Court or agreement of the parties; and it is further

ORDERED that neither party may remove any valuable property from any of the marital residences or storage units such as artwork or furniture, except for personal possessions such as clothing, or as agreed to by the parties in writing; and it is further

ORDERED that Plaintiff's requests as to the email account are denied without prejudice to renewal if absolutely necessary after standard discovery is conducted; and it is further

ORDERED that the Plaintiff's request for exclusive use of the London apartment is denied and the status quo shall continue; and it is further

ORDERED that Plaintiff shall pay temporary maintenance of $21,814 each month, with $11,814 being paid directly to the Plaza rent and other utilities and $10,000 paid to Defendant on or before the 15th day of each month; and it is further

ORDERED that on or before 8/5/2022, Plaintiff shall pay interim counsel fees of $75,000 directly to Defendant's counsel.

This constitutes the Decision and Order of the Court.

DATE 7/1/2022

ARIEL D. CHESLER, J.S.C.