KL v IL

[*1] KL v IL 2023 NY Slip Op 51047(U) Decided on September 20, 2023 Supreme Court, Richmond County Castorina, Jr., 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 September 20, 2023
Supreme Court, Richmond County

KL, Plaintiff,

against

IL, Defendant.



Index No. 55305/2023


Counsel for the Plaintiff
Gregory Gorodetsky, Esq.
1723 East 12th Street, 2nd Floor
Brooklyn, NY 11229
Phone: (718) 645-4604
E-mail: springweal@aol.com

Counsel for the Defendant:
Robert Walter Hiatt, Esq.
75 Wall St Apt 21C
New York, NY 10005
Phone: (718) 979-8068
E-mail: rwhiattesq@mac.com
Ronald Castorina, Jr., J.

The following e-filed documents listed on NYSCEF (Motion #001) numbered 9-22, 27, 33, 74 and (Motion #002) numbered 35-51, 59-62, 75 were read on this motion.

Upon the foregoing documents, and upon consideration of oral argument conducted on September 7, 2023, Motion Sequence #001 and Motion Sequence #002 are resolved as follows:

It is hereby ORDERED, that the Plaintiff is GRANTED monthly spousal maintenance and the Defendant shall pay monthly spousal maintenance, commencing September 1, 2023, in [*2]the amount of $799.40 [Seven Hundred Ninety-Nine Dollars and Forty Cents], pendente lite, subject to reallocation at trial and without prejudice to renew, and it is further;

ORDERED, that Plaintiff is GRANTED monthly child support and the Defendant shall pay Plaintiff, commencing September 1, 2023, child support in the monthly sum of $2,110.80 [Two Thousand One Hundred Ten Dollars and Eighty Cents], pendente lite, subject to reallocation at trial, and it is further;

ORDERED, that Plaintiff's request for allocation of the parties' pro rata share of the child's add-on expenses is GRANTED in that, commencing September 1, 2023, Plaintiff is responsible for 38% of all of the child's add-on expenses, pendente lite, subject to reallocation at trial, and Defendant is responsible for 62% of all child add-on expenses, pendente lite, subject to reallocation at trial, and it is further;

ORDERED, that Plaintiff's request for the Defendant to pay directly to the Plaintiff's attorney, GREG C. GORODETSKY ATTORNEY AT LAW, interim counsel fees in the amount of $7,500.00 [SEVEN THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS], isGRANTED, pendente lite, subject to reallocation at trial and without prejudice to renew, and it is further;

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

Memorandum Decision

I. Statement of Facts

Plaintiff KL and Defendant IL were married in a civil ceremony in the City of New York on May XX, 2014. There are two children of the marriage, to wit: AL, DOB 12/XX/2019, and SL, DOB: 12/XX/2013. The Plaintiff commenced this action for divorce on or about June 6, 2023. On July 31, 2023, Plaintiff filed Motion Sequence #001 by Notice of Motion.

Plaintiff seeks (a) full legal and physical custody of the children, AL, DOB 12/XX/2019, and SL, DOB 12/XX/2013, pendente lite; (b) exclusive occupancy of marital residence, located at XX XX Ave, Staten Island, NY 10308, pendente lite; (c) pursuant to Domestic Relations Law §236-B [6] [a], Defendant to pay temporary maintenance to Plaintiff of $1,458.33 per month, pendente lite; (d) pursuant to Domestic Relations Law §240, Defendant to pay temporary child support to Plaintiff in the amount of $2,285.66 per month or other amount, pendente lite; (e) Defendant to pay the cost of Plaintiff's attorney fees in the amount of $15,000.00, pendente lite, without prejudice to reapply; and (f) and for any further relief the Court may deem just and proper.

Defendant filed his cross-motion on August 17, 2023, seeking (1) temporary sole legal and physical custody of the parties' children (2) pursuant to Domestic Relations Law Section 236 [B], Plaintiff to pay child support, pendente lite, to Defendant in the amount of $1,428.57 per month; and (3) such other and further relief as the Court deems appropriate.

On August 22, 2023, Plaintiff filed opposition to Motion Sequence #002 and reply on Motion Sequence #001. Reply was filed by Defendant on August 30, 2023.

Through an interim stipulation (NY St Cts Filing [NYSCEF] Doc No. 74) and Orders of the Court (see NY St Cts Filing [NYSCEF] Doc Nos. 27 and 77) Motion Sequence #001 prong [*3](a) and Motion Sequence #002 prong (1) were resolved with the Court Granting Plaintiff residential custody of the children, pendente lite, subject to reallocation at trial and Motion Sequence #001 prong (b) was resolved with the Court, granting Defendant exclusive occupancy of marital residence, located at XX XX Ave, Staten Island, NY 10308, pendente lite, subject to reallocation at trial.

The only remaining open prongs are prongs addressing maintenance, child support and counsel fees. Oral argument was heard on the motions on September 7, 2023. This is a Decision and Order on Motion Sequence #001 and Motion Sequence #002.

I. Imputation of Income

"Income shall mean income as defined in the child support standards act and codified in section two hundred forty of this article and section four hundred thirteen of the family court act[.]" (see Domestic Relations Law § 236 [B] [5-a] [b] [4]).

Domestic Relations Law § 240 [1-b] [b] [5] provides as follows:

(5) "Income" shall mean, but shall not be limited to, the sum of the amountsdetermined by the application of clauses (i), (ii), (iii), (iv), (v) and (vi) of this subparagraph reduced by the amount determined by the application of clause (vii) of this subparagraph:

(i) gross (total) income as should have been or should be reported in the most recent federal income tax return. If an individual files his/her federal income tax return as amarried person filing jointly, such person shall be required to prepare a form, sworn tounder penalty of law, disclosing his/her gross income individually;

(ii) to the extent not already included in gross income in clause (i) of thissubparagraph, investment income reduced by sums expended in connection with suchinvestment;

(iii) to the extent not already included in gross income in clauses (i) and (ii) of this subparagraph, the amount of income or compensation voluntarily deferred and incomereceived, if any, from the following sources:

(A) workers' compensation,

(B) disability benefits,

(C) unemployment insurance benefits,

(D) social security benefits,

(E) veterans benefits,

(F) pensions and retirement benefits,

(G) fellowships and stipends,

(H) annuity payments, and

(I) alimony or maintenance actually paid or to be paid to a spouse who is a party to the instant action pursuant to an existing court order or contained in the order to be entered by the court, or pursuant to a validly executed written agreement, in which event the order or agreement shall provide for a specific adjustment, in accordance with this subdivision, in the amount of child support payable upon the termination of alimony or maintenance to such spouse; provided, however, that the specificadjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with subparagraph two of paragraph b of subdivision nine of part B of section two hundred thirty-six of this article. In an action or [*4]proceeding to modify an order of child support, including an order incorporating without merging an agreement, issued prior to the effective date ofthis subclause, the provisions of this subclause shall not, by themselves, constitute a substantial change of circumstances pursuant to paragraph b of subdivision nineof part B of section two hundred thirty-six of this article.

(iv) at the discretion of the court, the court may attribute or impute income from, such other resources as may be available to the parent, including, but not limited to:

(A) non-income producing assets,

(B) meals, lodging, memberships, automobiles or other perquisites that are provided as part of compensation for employment to the extent that such perquisites constitute expenditures for personal use, or which expenditures directly or indirecly [indirectly]* confer personal economic benefits,

(C) fringe benefits provided as part of compensation for employment, and

(D) money, goods, or services provided by relatives and friends

"In determining parental income under the CSSA, the court must begin with the parent's 'gross (total) income as should have been or should be reported in the most recent federal income tax return'" (see Sinnott v Sinnott, 194 AD3d 868 [2d Dept 2021] citing Domestic Relations Law § 240 [1-b] [b] [5] [i]; Holterman v Holterman, 3 NY3d 1 [2004]; Matter of Peddycoart v MacKay, 145 AD3d 1081 [2d Dept 2016]) "and then to the extent not already included in gross income, the amount of income or compensation voluntarily deferred and income received from certain specified sources, including pensions and retirement benefits[.]" (see id; citing Domestic Relations Law § 240 [1-b] [b] [5] [iii] [F]; Holterman v Holterman, 3 NY3d 1 [2004]; Ballard v Davis, 259 AD2d 881 [3d Dept 1999]).

Domestic Relations Law § 240 [1-b] [b] [5] [vii] provides for the following deductions for income:

(vii) the following shall be deducted from income prior to applying the provisions of paragraph (c) of this subdivision:

(A) unreimbursed employee business expenses except to the extent said expensesreduce personal expenditures,

(B) alimony or maintenance actually paid to a spouse not a party to the instant action pursuant to court order or validly executed written agreement,

(C) alimony or maintenance actually paid or to be paid to a spouse who is a party to the instant action pursuant to an existing court order or contained in the order to be entered by the court, or pursuant to a validly executed written agreement, in which event the order or agreement shall provide for a specific adjustment, in accordance with this subdivision, in the amount of child support payable upon the termination of alimony or maintenance to such spouse; provided, however, that the specific adjustment in the amount of child support is without prejudice to either party's right to seek a modification in accordance with subparagraph two of paragraph b of subdivision nine of part B of section two hundred thirty-six of this article. In an action or proceeding to modify an order of child support, including an order incorporating without merging an agreement, issued prior to the effective date of this subclause, the provisions of this subclause shall not, by themselves, constitute a substantial change of circumstances pursuant to paragraph b of subdivision nine of part B of section two hundred thirty-six of this article.

(D) child support actually paid pursuant to court order or written agreement on behalf of any child for whom the parent has a legal duty of support and who is not subject to the instant action,

(E) public assistance,

(F) supplemental security income,

(G) New York city or Yonkers income or earnings taxes actually paid, and

(H) federal insurance contributions act (FICA) taxes actually paid.

Defendant has raised the issue as to whether the Plaintiff should have additional income imputed to her based on her alleged under reported income.

"It is settled that '[in] a matrimonial action involving issues of equitable distribution of marital property, public policy clearly mandates full financial disclosure'" (see Richter v Richter, 131 AD2d 453 [2d Dept 2022], quoting Charpentier v Charpentier, 495 NYS2d 89 [2d Dept 1985], citing Domestic Relations Law § 236 [B] [4]; Rubenstein v Rubenstein, 117 AD2d 593 [2d Dept 1986]; Hirschfeld v Hirschfeld, 114 AD2d 1006 [2d Dept 1985], affd 69 NY2d 842 [1987]; Van Ess v Van Ess, 100 AD2d 848 [2d Dept 1984]; 22 NYCRR § 202.16.

"In determining a party's maintenance and child support obligations, '[a] court need not rely upon a party's own account of his [or her] finances, but may impute income based upon the party's past income or demonstrated future potential earnings[.]'" (see Tuchman v Tuchman, 201 AD3d 986 [2d Dept 2022] quoting Duffy v Duffy, 84 AD3d 1151 [2d Dept 2011]; citing Wesche v Wesche, 77 AD3d 921 [2d Dept 2010]; Steinberg v Steinberg, 59 AD3d 702 [2d Dept 2009]).

"The court may impute income to a party based on his or her employment history, future earning capacity, educational background, or money received from friends and relatives[.]" (see id quoting Duffy v Duffy, 84 AD3d 1151 [2d Dept 2011]; citing Matter of Rohme v Burns, 92 AD3d 946 [2d Dept 2012]; Wesche v Wesche, 77 AD3d 921 [2d Dept 2010]).

"Where a party's account is not believable, the court may impute a true or potential income higher than alleged[.]" (see id quoting Wesche v Wesche, 77 AD3d 921 [2d Dept 2010]; citing Duffy v Duffy, 84 AD3d 1151 [2d Dept 2011]). "The court has considerable discretion in determining whether income should be imputed to a party and the court's credibility determinations are accorded deference on appeal[.]" (see id quoting Matter of Monti v DiBedendetto, 151 AD3d 864 [2d Dept 2017]; citing Matter of Kiernan v Martin, 108 AD3d 767 [2d Dept 2013]).

Plaintiff reports an annual income of $42,000.00 in her statement of net worth, which is akin to what the parties reported on their 2022 income tax returns. (NY St Cts Filing [NYSCEF] Doc No. 20). Defendant alleges that a significant component of her business, a beauty salon, is conducted in cash and provides the court with a copy of an Instagram post from her business, which clearly states she accepts cash in addition to other methods of payment. (NY St Cts Filing [NYSCEF] Doc No. 42).

Defendant further alleges that Plaintiff has omitted from her statement of net worth her business, ByHype LLC's Chase checking account ending in *2776, her Paypal account, her Venmo account, her MVB checking account ending in *9161 and her square.com account that is used for taking credit card payments. (NY St Cts Filing [NYSCEF] Doc No. 37). Plaintiff further lists in her statement of net worth her monthly expenses as $21,486.00 which on an annual basis would far exceed her $42,416.00 annual reported income.

There is evidence at this juncture submitted by the Defendant that supports the Defendant's allegation that the Plaintiff's income is significantly higher than reflected in the parties' reported income. The Court is therefore imputing an annual income of $62,000.00 to the Plaintiff and an annual income of $135,030.00 to the Defendant, pendente lite, for the purpose of [*5]calculations made herein, pendente lite, subject to reallocation at trial.

II. Spousal Maintenance, Pendente Lite

In Motion Sequence #001, Plaintiff seeks an Order directing the Defendant to pay monthly Maintenance to Plaintiff pursuant to Domestic Relations Law §236 [B] [5-a] based on the parties' respective incomes.

Pendente lite maintenance is awarded to ensure that a needy spouse is provided with funds for their support and reasonable needs pending trial. It should be an accommodation between the reasonable needs of the moving spouse and the financial ability of the other spouse, determined with due regard for the pre-separation standard of living. (see Salmon v de Salmon, 173 AD3d 793 [2d Dept 2019]). In this matter, the length of the marriage and the disparity in income make pendente lite maintenance appropriate.

"A party's maintenance obligation commences, and is retroactive to, the date an application for maintenance was first made" (see Levitt v Levitt, 97 AD3d 543 [2d Dept 2012] citing DRL § 236 [B] [6] [a]; Scarpace v Scarpace, 84 AD3d 1537 [3d Dept 2011]; Groesbeck v. Groesbeck, 51 AD3d 722 [2d Dept 2008]; Grassi v. Grassi, 35 AD3d 357 [2d Dept 2006]).

A. Guideline Amount Calculation Spousal Maintenance

Plaintiff

Defendant

Total Income

$62,000.00

$135,030.00

FICA: Social Security tax paid

($2,629.79)

($8,371.86)

Medicare tax paid

($615.03)

($1,957.94)

New York City income tax paid

($1,154.60)

($4,735.68)

Adjusted CSSA Income

$57,600.58

$119,964.52

First Calculation

20% of payor's income up to and including the cap

$23,992.90

Minus 20% of payee's income

$14,400.15

<

Result 1 $9,592.76

Second Calculation

Payor's income up to and including the cap

$119,964.52

Plus payee's income

$57,600.58

Combined income

$177,565.10

40% of combined income

$71,026.04

Minus payee's income

($57,600.58)

Result 2

$13,425.46

Lower of the two results

$9,592.76

Accordingly, monthly spousal maintenance is GRANTED to Plaintiff and Defendant is ORDERED to pay Plaintiff monthly spousal maintenance in the amount of $799.40 [Seven Hundred Ninety-Nine Dollars and Forty Cents], pendente lite, subject to reallocation at trial and without prejudice to renew. This monthly payment shall commence September 1, 2023.

III. Child Support

"A parent has an obligation to provide support for his or her child's basic needs, an obligation which is addressed in Domestic Relations Law §240 [1-b] [c] [1] [2]." (see Cimons v Cimons, 53 AD3d 125 [2d Dept 2008]. The Child Support Standards Act "provides a precisely articulated, three-step method for determining child support" (see Boltz v Boltz, 178 AD3d 656 [2d Dept 2019]. This three-step process includes (1) computing a combined parental income, (2) multiplying that income, up to a certain income cap, by a specific percentage, and (3) determining the amount of income that should be considered for child support purposes if the combined parental income exceeds the income cap. (see Cassano v Cassano, 85 NY2d at 649 [1995]).

Plaintiff

Defendant

Adjusted CSSA Income

$57,600.58

$119,964.52

Maintenance Adjustment

$9,592.76

($9,592.76)

[*6]Income Adjusted for Maintenance

$67,193.34

$110,371.76

Combined Parental Income

$177,565.10

Applicable Child Support Percentage

25%

Annual Parental Support Obligation

$40,750.00

Share of Combined Parental Income

38%

62%

Annual Pro Rata Shares

$15,420.42

$25,329.58

Accordingly, the Plaintiff's request for child support is GRANTED. Defendant is ORDERED, commencing September 1, 2023, to pay Defendant child support in the monthly sum of $2,110.80 [Two Thousand One Hundred Ten Dollars and Eighty Cents], pendente lite, subject to reallocation at trial.

IV. Add-On Expenses for Child, Pendente Lite, Subject to Reallocation at Trial

It is ORDERED that all the child's add-on expenses, including, but not limited to (1) child care expenses while the custodial parent is working; (2) unreimbursed medical expenses, to include but not limited to co-payments, pharmaceutical expenses, optical, dental, therapeutic sessions, mental health services, and related health care expenses; and (3) education expenses to include but not limited to private school tuition, mandatory fees, books, labs, uniform expenses shall be divided on a pro-rata basis. Plaintiff is responsible for 38% of all add-on expenses for the child, pendente lite, subject to reallocation at trial, and the Defendant is responsible for 62% of all add-on expenses for the child, pendente lite, subject to reallocation at trial. Parties' responsibility for their pro rata shares of add-on expenses for the child shall be effective the date of this Order.

V. Interim Counsel Fees

Pursuant to Domestic Relations Law § 237 [a], "There shall be a rebuttable presumption that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, the court shall seek to assure that each party shall be adequately represented and that where fees and expenses are to be awarded." "An award of reasonable counsel fees in a matrimonial action is a matter within the discretion of the trial court[.]" (see Guzzo v Guzzo, 110 AD3d 765 [2d Dept 2013] citing Domestic Relations Law § 237; De Cabrera v. Cabrera-Rosete, 70 NY2d 879 [1987]; Quinn v Quinn, 73 AD3d 887 [2d Dept 2010]).

"[T]he more affluent spouse should not be treated as an open-ended checkbook expected [*7]to pay for exorbitant legal fees incurred by the less affluent spouse through excessive litigation or the assertion of unreasonable positions. Where a party has asserted unreasonable positions or failed to cooperate in discovery, and thereby increased the cost of the litigation, the court may make a counsel fee award in favor of the offended party or not make, or make a lesser award, in favor of the offending party[.]" (see Kaufman v Kaufman, 189 AD3d 31 [2d Dept 2020] citing Morille-Hinds v Hinds, 169 AD3d 896 [2d Dept 2019]; Cravo v Diegel, 163 AD3d 920 [2d Dept 2018]; Culen v Culen, 157 AD3d 926 [2d Dept 2018]; Samimi v Samimi, 134 AD3d 1010 [2d Dept 2018]).

Defendant has a higher income than Plaintiff which rises to a level in which the Defendant is required to pay a portion of the Plaintiff's counsel fees. Accordingly, Plaintiff's request for the Defendant to pay directly to the Plaintiff's attorney, GREG C. GORODETSKY ATTORNEY AT LAW, interim counsel fees in the amount of $7,500.00, is GRANTED, pendente lite, subject to reallocation at trial and without prejudice to renew.

Decretal Paragraphs

ORDERED, that the Plaintiff is GRANTED monthly spousal maintenance and the Defendant shall pay monthly spousal maintenance, commencing September 1, 2023, in the amount of $799.40 [Seven Hundred Ninety-Nine Dollars and Forty Cents], pendente lite, subject to reallocation at trial and without prejudice to renew, and it is further;

ORDERED, that Plaintiff is GRANTED monthly child support and the Defendant shall pay Plaintiff, commencing September 1, 2023, child support in the monthly sum of $2,110.80 [Two Thousand One Hundred Ten Dollars and Eighty Cents], pendente lite, subject to reallocation at trial, and it is further;

ORDERED, that Plaintiff's request for allocation of the parties' pro rata share of the child's add-on expenses is GRANTED in that, commencing September 1, 2023, Plaintiff is responsible for 38% of all of the child's add-on expenses, pendente lite, subject to reallocation at trial, and Defendant is responsible for 62% of all child add-on expenses, pendente lite, subject to reallocation at trial, and it is further;
ORDERED, that Plaintiff's request for the Defendant to pay directly to the Plaintiff's attorney, GREG C. GORODETSKY ATTORNEY AT LAW, interim counsel fees in the amount of $7,500.00 [SEVEN THOUSAND FIVE HUNDRED DOLLARS AND NO CENTS], isGRANTED, pendente lite, subject to reallocation at trial and without prejudice to renew, and it is further;

Any relief requested, and not specifically addressed in this Decision and Order is referred to the trial court.

ORDERED, that the Clerk of the Court shall enter judgment accordingly.

The foregoing shall constitute the Decision and Order of this Court.

Dated: September 20, 2023
Staten Island, New York
E N T E R,
HON. RONALD CASTORINA, JR.
JUSTICE OF THE SUPREME COURT