T.H. v G.M.

[*1] T.H. v G.M. 2023 NY Slip Op 51267(U) Decided on November 14, 2023 Supreme Court, Nassau County Dane, 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 This opinion is uncorrected and will not be published in the printed Official Reports.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 14, 2023
Supreme Court, Nassau County

T.H., Plaintiff,

against

G.M., Defendant.



Index No. XXXXXX/2022


Attorney for Plaintiff:
Firm Name: ISHELLI OLIVER, ESQ
Address: 10022 Avenue L, Brooklyn, NY 11236
Phone:(718) 444-4088
Service E-mail: ishellioliverlaw@aol.com

Attorney for Defendant:
Firm Name: Law Office of Crystal Beaumont
Address: 112-10 Springfield Blvd, 2nd Fl, Queens Village, NY 11429
Phone:(347) 493-7282
Service E-mail: crystal.beaumont@yahoo.com

Attorney for Child(ren):
Melissa Studin Young
Phone: (631) 414-7500
Service E-mail: myoung@studinyounglaw.com Edmund M. Dane, J.

The following papers have been read on these motions:

Plaintiff's Order to Show Cause dated September 7, 2023 x
Defendant's Notice of Cross-Motion dated October 5, 2023 x
Plaintiff's Opposition & Reply dated October 24, 2023 x
Defendant's Reply dated November 2, 2023 x
Affirmation of Attorney for the Child dated November 7, 2023 x

PRELIMINARY STATEMENT

The Plaintiff moves by Order to Show Cause dated September 7, 2023 (Motion Sequence No.: 002) seeking an Order: (1) Granting Plaintiff pendente lite residential custody of J.H.M. whose date of birth is XXXX XX, 2008, who is the child of the marriage; (2) An order directing [*2]the defendant to pay pendente lite child support for J.H.M. together with the pro rata share of his educational expenses pendente lite; (3) Granting Plaintiff exclusive use, occupancy and possession of the marital residence and its contents during a pendency of this action pursuant to DRL 234; (4) Directing the Defendant to pay the following expenses pendente lite: 100% of the 2021 GLE Mercedes Benz lease in the amount of $1,131.89 per month, 100% of the auto insurance for the 2021 GLE Mercedes Benz in the amount of $403 per month, 100% of the TIAA loan number xxxxx4002 in the amount of $670.45 monthly, 100% of the Citibank personal loan number xxx 7021 in the amount of $412.64 monthly, and 100% of the Citibank Personal loan number xxxxx4409 in the amount of $825.29 on the first day of every calendar month pursuant to DRL 236 and 240; and (5) Granting the plaintiff counsel fees for the filing of this motion pursuant to DRL 237; and (6) For such other and further relief as this Court may deem just and proper.

The Defendant cross-moves by Notice of Cross-Motion dated October 5, 2023 (Motion Sequence No.: 003) seeking an Order: (i) awarding Defendant temporary relief pursuant to Domestic Relations Law 236 and 240; (ii) granting Defendant pendente lite custody of J.H.M., born on XXXX XX, 2008, who is a minor child of the Parties' marriage; (iii) directing the Plaintiff to pay pendente lite basic child support for J.H.M., on the grounds that the Parties share the same residence, spends equal amount of time with the child and that Plaintiff has the higher income and thus should be deemed the noncustodial parent for child support purposes; (iv) further directing the Plaintiff to pay pendente lite spousal maintenance to the Defendant; (v) directing the Plaintiff to pay the following expenses directly to the Defendant pendente lite - 100% of the remaining lease payment in the amount of $1,131.89 per month for the 2021 GLE Mercedes Benz, leased in Plaintiff's name, 100% of the auto insurance for the 2021 GLE Mercedes Benz in the amount of $403.00, 100% of the TIAA loan (ending in xxxx4002), in the amount of $670.45 monthly, 100% of the Citibank personal loan (endiong xxxx7021) in the amount of $412.64 monthly, and 100% of the Citibank personal loan (ending xxxxx4409) in the amount of $825.29 monthly, each due by the first day of every calendar month pursuant to Domestic Relations Law 236 and 240; (vi) awarding attorney fees to the Defendant pursuant to Domestic Relations Law 237; and (vii) for other reliefs that the Court deems just and proper.

BACKGROUND

The parties were married on XXXX XX, 2001. The parties have one child, to wit: J. (born XXXX XX, 2008). This action was commenced by the filing of a Summons and Verified Complaint with the Nassau County Clerk's Office on or about September 23, 2022. The Defendant interposed a Verified Answer on or about October 21, 2022. The parties appeared before this Court for a Preliminary Conference on December 2, 2022, and a Preliminary Conference Stipulation & Order was so ordered by this Court on December 8, 2022 (Hon. Edmund M. Dane, J.S.C.). On April 17, 2023, this Court issued an Order Appointing Attorney for the Children whereby it appointed Melissa Studin Young, Esq., as attorney for the child (hereinafter referred to as the "AFC"). On April 24, 2023, this Court issued a Decision and Order (with respect to Motion Sequence No.: 001) wherein it, inter alia and in sum and substance, denied the Plaintiff's application for counsel fees without prejudice and with leave to renew upon the submission of proper papers.

THE PARTIES' CONTENTIONS
Plaintiff's Contentions:

The Plaintiff argues that prior to the commencement of this action, she lived at her mother's home at XXXX (hereinafter referred to as the "Freeport Premises") with the child, her mother, and the Defendant. She argues that the Defendant demonstrated aggressive behavior towards her and the child, who is almost fifteen (15) years old. She sets forth that she is employed in an administrative position and the Defendant is employed as a financial advisor. She argues that the Defendant's presence in the Freeport Premises creates acrimony and makes her and the child feel unsafe. She argues that after serving the Defendant with the Summons in this action, he became belligerent. She argues that the Defendants' tax returns reflect that he is residing at another residence in Rockville Centre, New York, that he has sufficient resources available to himself to secure another residence, and he frequently leaves the Freeport Premises, only to return late at night. She argues that when he returns late at night, he disturbs her rest and the child's rest and causes the security alarm to go off. She argues that the Defendant has ripped the covers off of her when she lays in bed. She argues, in effect, that the Defendant never assisted the child with his homework, never prepared meals for the child, never took the child to his activities, and often goes days without seeing the child. She argues that the Defendant talks to the child about this divorce action. She argues that the Defendant was stalking her on January 29, 2023. She argues that the Defendant enters the child's personal space by entering his room without knocking, and forces the child to wake up at 11:00 p.m. to "anoint" him. She argues that the Defendant's text messages demonstrate the toxic and unsafe environment in the home. She argues that various loans were taken out during the parties' marriage and the Defendant, in effect, is not contributing thereto. She sets forth that the child attends XXXX which is a private high school costing $36,500 per annum and the Defendant does not contribute thereto.

Defendant's Contentions:

The Defendant concedes that the child attends private high school XXXX and concedes that the child is involved in basketball, soccer, baseball, stage crew, tutoring, ELA and math. He argues that for years, he was the sole parent who took the child to and from school. He argues that during their marriage, the parties lived at the Freeport Premises, and he was invited to live in that home by the Plaintiff's mother. He argues that the Plaintiff's real "goal" is to have him removed from the Freeport Premises. He argues that the Plaintiff and her mother have spread false rumors and lies about him and that they are disparaging him. He argues that the Plaintiff has disrupted his relationship with the child by encouraging him to place a lock on his door. He argues that he wants the child to have the mental, spiritual and physical capacity to be an upright citizen in society. He sets forth that he has been a member of the Church for eight years and was appointed a Deacon. He argues that he used to have a routine prayer at night with the child, but this has ceased since the lock was put on the child's door. He denies making any threats, and denies engaging in harassing behavior. He sets forth that he is not a financial advisor; rather, he is a financial sales consultant. With respect to his income, he sets forth that in 2020, his profit and loss statement showed $60,602 before business expenses. He sets forth that in 2021, he had income of $91,696.00 with actual income of only $56,896 before business expenses. He sets forth that in 2022, he had business income of $22,329, before business expenses.

Plaintiff's Opposition & Reply:

The Plaintiff disputes that the Defendant solely took the child to school. She denies disparaging the Defendant. She argues that the Defendant has not contributed to the child's well-being. She argues that the Defendant offers no viable explanation for his lack of income. She argues, in effect, that the Defendant seeks to live rent free and not contribute to any financial obligations of the parties. She argues that the Defendant is overbearing. She argues that the Defendant walks into the bathroom when the child is undressed, enters the child's room after 11:00 p.m. and tries to "anoint" the child. She argues the child dislikes this. She argues that she placed a lock on the door to give the child the option of having privacy.

Defendant's Reply:

The Defendant argues that the Plaintiff is the monied spouse and earns more than he does. He reiterates many of the allegations regarding his income and expenses. He reiterates that he denies creating discord in the Freeport Premises. He argues that there is a psychological impact of placing a lock on a child's door, and that she has encouraged the child not to speak with him in Church. He argues, in effect, that the Plaintiff's actions have driven a wedge between his relationship with the child and that he is the more fit parent to serve as the child's primary caregiver. He sets forth the prayer he used to say with the child, and that he uses a small bottle of oil to make a small sign of the cross on the child's neck and collarbone.

Affirmation of the AF" target="_blank">See generally Taub v. Taub, 33 AD3d 612 (2d Dept. 2006); see generally Purdy v. Purdy, 117 AD2d 659 (2d Dept. 1986); see generally Biggio v. Biggio, 7 AD3d 521 (2d Dept. 2004). The Court finds the operable words in that pronouncement to be "safety" and "persons". The Court does not believe that the definition of "persons" was meant to be limited to spouses. Inasmuch as a child resides in the Freeport Premises, the Court finds that the subject child is a "person" under the purview of this Court and within the meaning of the protection of "person" as pronounced by the Appellate Division. Indeed, Merriam-Webster defines "person" as a "human, individual". Naturally, a child falls under the ambit of that definition. Similarly, the word "safety" cannot be narrowly construed to only mean physical safety. Certainly, a child's emotional state, security and well-being are just as important as the physical safety of that child. In furtherance of that sentiment, the Court notes that the Court of Appeals has opined that even Article 10 of the Family Court Act is designed to establish procedures to help protect children from injury or mistreatment "...and to help safeguard their physical, mental, and emotional well-being..." Matter of Jamie J. (Michelle E.C.), 30 NY3d 275 (2017). While the Court recognizes that this case is not an Article 10 proceeding, the Court would be remiss if it failed to punctuate this Court's ongoing duty to protect children that are the subject of litigation before it. To limit the interpretation of "safety" to acts of physical conduct or threats of physical violence would be an outmoded disservice to the many children that come before this Court because of their parent's divorce. The Court therefore finds that conduct that is detrimental to the welfare (physical or emotional) of a child should be a factor in determining the appropriateness of an award of pendente lite exclusive use and occupancy of a [*4]marital dwelling or place of abode.

On this application, the Court does not necessarily focus on the child's desire for the Defendant to vacate the Freeport Premises. However, the Court does find persuasive - and focuses on - the Defendant's conduct with respect to the subject child. Again, those are not mutually exclusive. The Court has reviewed the Affirmation of the AFC. The Court notes that courts have granted requests for awards of exclusive occupancy absent a hearing where the allegations are corroborated by a third party affidavit (see generally Preston v. Preston, 147 AD2d 464 (2d Dept. 1989)). Here, the Court considers the Affirmation of the AFC to be akin to a third-party Affidavit inasmuch as the AFC is representing to the Court what her client, i.e., the child, has told her. The AFC's Affirmation presents a concerning picture of what is taking place in the Freeport Premises and specifically sets forth the following:

J. [capitalization in original] shared with me that he recently placed a lock on his bedroom door with the assistance of his Mother to keep his Father out of his room. Prior to placing a lock on his door, the Father would come home late in the evenings, sometimes as late as midnight and 1:00 AM during weekday school nights, and come into his room and rub his body with oil as part of a anointing religious ceremony. My client explained to his Father that he does it himself or with his the Mother prior to going to bed, yet the Father would still come into his room and wake him up for this religious ritual. The child shared with me that he was exhausted at school and sports the next day and wanted this to stop immediately. According to my client, the Father does not respect his wishes, and had continued coming into his room after it was explicitly stated to him that it was waking the child on school nights.

For the reasons that follow in this Decision and Order, the Court finds the necessity to exclude the Defendant from the Freeport Premises in order to ensure that the child's best interests are protected (see In re Anne BB, supra), as well as to ensure that the child's emotional interests, well-being and safety are adequately safeguarded. In any matrimonial action where children are under the age of eighteen (18) years, the Court must always consider the emotional well-being of children. See generally Matter of Opalka v. Skinner, 81 AD3d 1005 (3d Dept. 2011).

The conduct at issue here centers around the Defendant's practice of his sincerely held religious beliefs, which, of course, gives pause to the Court, as the Court does not want to interfere with anyone's sincerely held religious beliefs. The Defendant's practice includes, in sum and substance, saying a prayer with his child and performing an "anointment" wherein he puts oil on a portion of the child's body in the shape of a Cross. The Defendant sets forth that he - and the Plaintiff - have historically engaged in this practice. The Court also notes the Defendant's self-admitted status as a Deacon in his Church. The Defendant describes the prayer ritual and anointment process in his Affidavit [FN1] dated November 2, 2023, which the Court finds prudent to set forth herein:

In regard to T.'s outrageous claims that I harass our son with my anointment prayer, this is simply not true.I used to have a routine prayer at night with my son. However, since the last Court date, [*5]T. placed locks on our son's door which prevented our routine prayer.The prayer I use is as follows:Father we come to say Thank you. Thank you for our Son J.. Lord continue to Bless and keep him. Let him know Lord God you are always with him that no matter what he goes through you are there. Cover him Lord Jesus under Blood covering that you shed on Calvary Cross so that we may have eternal life with you. Bless him coming in and Bless him going out. Oh god I ask you to Bless his mother, his brother, his Sister and his Grandmother. Let him not be afraid to participate in school may he continue to strive for excellence in his schoolwork. Return him safely home without accident incident or harm. We praise you in Jesus Name Amen.I normally use a small bottle of oil to make a small sign of the cross on his neck and collarbone area. My son also has two bottles of this same oil on his dresser inside his room.These bottles are available at the Church and provided to members to encourage the anointment of loved ones, family members and friends.It is a religious custom for T. and I to pray for and anoint or sone with oil (see e.g., James 5:14, Exodus 30:25). Both T. and I have consistently done this practice. Therefore, it is unclear why she would claim that my anointing of our son is some sort of harassment.

The Defendant misses the big picture. This is not about the Plaintiff's perception of his acts and the anointing ritual. This is also not about the Defendant's perception of his acts and the anointing ritual. This is about the child's perception of these acts which are performed during all hours of the night during the child's sleeping hours. Despite all entreaties by the child seeking cessation of the anointing ritual and prayer, the Defendant nonetheless persisted in his efforts to anoint the child. The Court cannot ignore that this prayer and anointment occur at all hours of the night, sometimes at midnight, sometimes at 1:00 a.m. To boot, this prayer and the anointment occurs on a school night. The Court does not find the Defendant's conduct in engaging in an anointment of the child at midnight or 1:00 a.m. to be in the child's best interests, and finds that it is contrary to the emotional well-being of the child. In this vein, it is clear to the Court that the Defendant's ardent insistence on his religious beliefs, which includes a prayer and anointment, is more important to him than his child, but, importantly, is detrimental to the emotional welfare and safety of this child. Indeed, and telling to this Court, the child went to far as to place a lock on his door to give him a feeling of security and safety from the Defendant's conduct. To this end, the child's conduct in placing a lock on his door leads the Court to the inescapable conclusion that the child's emotional well-being was being adversely affected by the Defendant's conduct. This is why the Court finds it necessary to exclude the Defendant from the Freeport Premises. The Court finds that doing so will ameliorate the emotional stress suffered by the child and will provide the child with a respite so as to live without anxiety that the Defendant will enter his room at all hours of the night to perform an anointment and say a prayer that, critically, could be performed during waking hours of the day.

This Decision and Order should not be read as to empower this child. The Court wants to be clear: it is doing no such thing. Nor is the Court displacing the Defendant from the Freeport Premises because that is what the child wants or desires. Rather, this Court elects to displace the [*6]Defendant because, in effect, he voluntarily chose to put his own religious interests over and above that of the emotional and physical well-being of this child. The adverse effect on the child was evident: emotionally, it caused undue stress to be placed upon this child; physically, it resulted in exhaustion in school when the child should be focused on his education and at his activities when the child should be focused on the betterment of his athletic ability.

Additionally, this Decision and Order should not be read as infringing on the Defendant's sincerely held religious beliefs. While the Defendant may practice and observe whatever sincerely held religious beliefs that he has, no cognizable justification can be provided to this Court to convince it that awakening a child at midnight or 1:00 a.m. on a school night to, in effect, say a prayer and rub oils on parts of a child's body. Critically, while the Defendant posits that he seeks to ensure that the child has the mental, spiritual and physical capacity to be an upright citizen in society, his conduct only served as a detriment to those goals. The Defendant's unbridled attempts at justifying his conduct easily convinces this Court that the result reached herein is the right thing to do for this child.

Finally, the Court wishes to emphasize that by granting the Plaintiff's application for pendente lite exclusive use and occupancy of the Freeport Premises, it is not granting her custody of this child. This Decision and Order shall not be construed as a dispositive determination on the issue of custody or parental access, and is limited solely to the extent of an award of pendente lite exclusive use and occupancy of a residence. Given the Plaintiff's allegations surrounding the Defendant's engagement with the child in prayer and anointment, corroborated by the AFC, and given the Defendant's admission to his prayer and anointment on the child (including, with detail, the exact prayer and procedure of the anointment), the Court finds no disputed issues of fact. The Court therefore finds that it has sufficient information on this application to grant this relief without the necessity of a plenary hearing. The Court will not countenance detrimental conduct which has an adverse affect on the emotional well-being of a child. While the Defendant's conduct in his prayer and anointment of this child at all hours of the night may have been well-intentioned in his mind, the upshot of his conduct adversely affected the emotional well-being of his child. As specifically explained to the Court by the AFC, after requesting the cessation of this conduct, the Defendant nonetheless persisted in conduct that was, at all times, detrimental to the emotional well-being and safety of this child. The Defendant's unbridled ignorance of his child's emotional well-being with respect to his conduct, coupled with his unapologetic attempts to justify his conduct, leads this Court to find no other alternative but to exclude the Defendant from the Freeport Premises.

Accordingly, and for all of the aforesaid reasons, which include, but are not necessarily limited to, the safety of the child, the emotional well-being of the child, and the best interests of the child, it is hereby:

ORDERED, that Branch (3) of the Plaintiff's Order to Show Cause dated September 7, 2023 be and the same is hereby GRANTED TO THE EXTENT that the Plaintiff shall have pendente lite exclusive use, occupancy and possession of the premises located at XXXX, Freeport, New York; and it is further

ORDERED, that the Defendant shall vacate the premises located at XXXX Freeport, New York by not later than December 15, 2023, and he is hereby directed not to return thereto.

[*7]CUSTODY

Disputes involving custody and visitation are acknowledged to be among the most difficult the courts are called upon to resolve, for they so deeply affect the lives of children and the parents who love them. Daghir v. Daghir, 82 AD2d 191 (2d Dept. 1981). It is well settled that the primary consideration in all custody disputes is the best interest of the child. See Keating v Keating, 147 AD2d 675 (2d Dept. 1989). Courts must be vigilant to assure that children are fully protected and their best interests secured. Matter of Newton v. McFarlane, 174 AD3d 67 (2d Dept. 2019). The best interests of the child are determined by a review of the totality of the circumstances. Matter of Paige v. Paige, 202 AD3d 794 (2d Dept. 2022).

It is further established that as a general rule, it is error as a matter of law to make an order respecting custody based on controverted allegations without having had the benefit of a full hearing (see Biagi v. Biagi, 124 AD2d 770 (2d Dept. 1986); see also Colley v. Colley, 200 AD2d 839 (3d Dept. 1994)), and custody determinations should generally be made only after a full and plenary hearing. Palazzola v. Palazzola, 188 AD3d 1081 (2d Dept. 2020); see also Trazzera v. Trazzera, 199 AD3d 855 (2d Dept. 2021). While the general right to a hearing in custody and visitation cases is not absolute, where facts material to the best interest analysis, and the circumstances surrounding such facts, remain in dispute, a hearing is required. See Palazzola v Palazzola, supra; see also Trazzera v. Trazzera, supra. See also Stolzenberg v. Stolzenberg, 209 AD3d 688 (2d Dept. 2022). The Court of Appeals has made clear:

Given the goals of stability and permanency, as well as the weight of the interests at stake, the societal cost of even an occasional error in a custody proceeding is sizeable. Custody determinations therefore require a careful and comprehensive evaluation of the material facts and circumstances in order to permit the court to ascertain the optimal result for the child. The value of a plenary hearing is particularly pronounced in custody cases in light of the subjective factors—such as the credibility and sincerity of the witnesses, and the character and temperament of the parents—that are often critical to the court's determination.

S.L. v. J.R., 27 NY3d 558 (2016).

The Court notes that there are conflicting allegations proffered by the parties, making it impossible to determine who should be awarded custody without live testimony. Both parties allege, to some degree, that they each were the primary caretaker of the child. Both parties raise conflict accounts and questions of the level of involvement of the other party in the care and upbringing of the child, including who took the child to school and their presence at the activities of the child. Also, there are allegations of domestic strife while may or may not be impacting this child. Custody determinations depend to a great extent upon the court's assessment of the credibility of the witnesses, as well as the parties' character, temperament and sincerity. Matter of Brass v. Otero, 40 AD3d 752 (2d Dept. 2007). In addition thereto, the Court also notes the age of this child (fifteen (15) years old), and is cognizant that his wishes may be entitled to great weight. See generally Silverman v. Silverman, 186 AD3d 123 (2d Dept. 2020). The Court notes that the trial of this matter is supposed to take place from May 1, 2024 to May 3, 2024. Accordingly, it is hereby:

ORDERED, that Branch (1) of the Plaintiff's Order to Show Cause dated September 7, 2023 and Branch (ii) of the Defendant's Notice of Cross-Motion dated October 5, 2023 be and the same are hereby REFERRED TO TRIAL.

TEMPORARY MAINTENANCE

The Defendant seeks temporary maintenance from the Plaintiff. An award of support pendente lite is designed to maintain the status quo (see Hills v. Hills, 182 AD2d 584 (1st Dept. 1992)) and provide for the reasonable needs of the parties pending the determination of the litigation (see Campion v. Campion, 264 AD2d 705 (2d Dept. 1999); see also Rossman v. Rossman, 91 AD2d 1036 (2d Dept. 1983)). It is meant to tide over the more needy party, not to determine the correct ultimate amount of support See Jordan v. Jordan, 2 AD3d 687 (2d Dept. 2003).

Domestic Relations Law § 236[B][5-a] establishes a formula and guidelines for calculating presumptive amounts of temporary spousal maintenance in matrimonial actions. The Court shall first apply one of two formulas based on the parties' respective incomes, with a cap on the Payor's income of $203,000.00. Where the Payor's income is below or equal to the income cap and is also paying child support to the Payee, the calculation is as follows: calculate 20% of the Payor's income (up to $203,000.00) and subtract 25% of the Payee's income. Then, the Court must calculate 40% of the parties' combined income (capping the Payor's income at $203,000.00) and subtract the Payee's income. Next, the Court compares the resulting amounts from both calculations and the lesser amount is the presumptive amount of temporary maintenance. The statute expressly provides that maintenance shall be calculated prior to child support because the amount of maintenance awarded shall be subtracted from the Payor's income and added to the Payee's income as part of the calculation of the child support obligation.

However, where the Payor's income is above the $203,000.00 income cap, the Court shall first determine the guideline amount using one of the two formulas set forth above. Then, it is within the Court's discretion whether to award any additional maintenance based on the amount of income exceeding the cap. In making such a determination, the Court shall consider any one or more of a list of factors enumerated in the statute.

Notwithstanding the formulas set forth above, the statute provides the Court with flexibility to deviate from the presumptive amount of temporary maintenance. Thus, the Court may, in its discretion, adjust the award of maintenance in a situation where: (i) the Payor's income exceeds the statutory cap of $203,000.00; or (ii) the Court finds that the guideline amount of maintenance would be unjust or inappropriate. If the Court chooses to do so, it shall consider any one or more of a list of factors set forth in the statute. When the Court awards an additional amount of maintenance for income above the cap, the Court must set forth, either in writing or on the record, the factor(s) it considered and the reasons for the deviation. When the Court determines that the guideline amount of maintenance would be unjust or inappropriate, the Court shall set forth, either in writing or on the record, the factor(s) it considered, the reasons for the deviation, and also the guideline amount of maintenance. The aforementioned factors are as follows (DRL §236[B][5-a][h][1]):

1) The age and health of the parties;2) The present or future earning capacity of the parties, including a history of limited participation in the workforce;3) The need of one party to incur education or training expenses;4) The termination of a child support award during the pendency of the temporary maintenance award when the calculation of temporary maintenance was based upon child support being awarded and which resulted in a maintenance award lower than it would have been had child support not been awarded;5) The wasteful dissipation of marital property, including transfers or encumbrances made in contemplation of a matrimonial action without fair consideration;6) The existence and duration of a pre-marital joint household or a pre-divorce separate household;7) Acts by one party against another that have inhibited or continue to inhibit a party's earning capacity or ability to obtain meaningful employment. Such acts include but are not limited to acts of domestic violence as provided in section 459-A of the Social Services Law;8) The availability and cost of medical insurance of the parties;9) The care of children or stepchildren, disabled adult children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a party's earning capacity;10) The tax consequences to each party;11) The standard of living the parties established during the marriage;12) The reduced or lost earning capacity of the payee as a result of having forgone or delayed education, training, employment or career opportunities during the marriage; and13) Any other factor which the Court shall expressly find to be just and proper.

For purposes of calculating income under the temporary maintenance statute, annual income is defined as gross income, less FICA and New York City or Yonkers Income Taxes. (D.R.L. §240(1-b)(b)(5)). The Court additionally notes that the formula to determine temporary spousal maintenance that is outlined in Domestic Relations Law § 236(B)(5-a)(c) is intended to cover all of a payee spouse's basic living expenses, including housing costs, the costs of food and clothing, and other usual expenses. See Capozzoli v. Capozzoli, 187 AD3d 834 (2d Dept. 2020).

Income

Prior to reaching its determination with respect to the Defendant's request for support, the Court must determine the incomes of the parties for the purposes of this application.

A. Plaintiff's Income

With respect to the Plaintiff, her 2021 Form 1040 Income Tax Return reflects line "1" wages of $117,251.00. That income is also reflected in section (III)(a) of the Plaintiff's Statement of Net Worth. The Plaintiff's income for purposes of this application is therefore $108,281.30.[FN2]

B. Defendant's Income

With respect to the Defendant's income, the analysis is vexing. He lists his occupation as a self-employed financial consultant. The Defendant's sworn Statement of Net Worth (see NYSCEF Document No.: 59) is barren of his income in the "Gross Income Information" section thereof. The Defendant's cross-moving Affidavit contains a paucity of information regarding his [*8]income and fails to represent what his actual income is. For instance, the Defendant claims that he is a financial sales consultant and, in order to earn money, he must "...sell a financial product in order to make a commission and make income..." While the Defendant claims that he has never earned $97,000 as business income, his cross-moving Affidavit only claims that he earned $60,602 in 2020 "before business expenses", $56,896 in 2021 "before business expenses" and $22,329 in 2022 "before business expenses". But the Defendant never represents to the Court what his actual claimed income is in any of those years.

The Court has therefore closely analyzed and scrutinized the Defendant's tax returns for 2020, 2021 and 2022.[FN3] For year 2020, the Defendant's Form 1040 reflects total income (see line "9" thereof) of $12,893.00. However, his Schedule C Profit or Loss from Business reflects $60,602 in gross receipts or sales, total expenses of $47,709 and tentative profit of $12,893. For year 2021, the Defendant's From 1040 reflects total income (see line "9" thereof) of $14,255.00. However, his Schedule C Profit or Loss from Business reflects $91,696 in gross receipts or sales, total expenses of $77,441 and tentative profit of $14,255. For year 2022, the Defendant's Form 1040 reflects total income (see line "9" thereof) of $10,572.00. However, his Schedule C Profit or Loss from Business reflects $22,329 in gross receipts or sales, total expenses of $20,959 and tentative profit of $1,370. Also in year 2022 he had a second Schedule C Profit or Loss from Business which reflects $11,639 in gross receipts or sales, total expenses of $2,347 and tentative profit of $9,202.

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. Duffy v Duffy, 84 AD3d 1151 (2d Dept. 2011); see Wesche v Wesche, 77 AD3d 921 (2d Dept. 2010). 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. Matter of Rohme v. Burns, 92 AD3d 946 (2d Dept. 2012); Klein v. Klein, 178 AD3d 802 (2d Dept. 2019). Since most - if not all of - the Defendant's income appears to be reported on his Schedule C(s), the Court is also cognizant of the premise that while there may be expenses listed on a tax return which may be legitimate for tax purposes, they may have little bearing on the payor's pr payee's actual ability to pay support. See generally Mireille J. v. Ernst F.J., 220 AD2d 503 (2d Dept. 1995). If the expenses do not affect disposable income or otherwise impact the ability to pay support, those expenses may be excluded. See generally Dane v. Dane, 260 A.D2d 817 (3d Dept. 1999).

While the Defendant may have reported $91,696 in year 2021, it appears that there was a large "chargeback commission" of $34,800 in that year. A nonrecurring payment should not be considered in calculating ongoing support obligations. See generally Gina P. v. Stephen S., 33 AD3d 412 (1st Dept. 2006). Here, it appears that the chargeback commission of $34,800 was a one-time nonrecurring payment to the Defendant, and the Plaintiff has not presented this Court with any evidence that the Defendant has historically earned anywhere near $97,703. The Court does not find the Plaintiff's argument persuasive that this is the average salary of a financial [*9]advisor. The Court therefore declines to impute that sum of income to him.

However, the Court is admittedly perplexed, and the Defendant's account of his finances are suspect. The Defendant claims, in his cross-moving Affidavit, that in year 2022, he only earned $22,329.00 "before business expenses". Yet he admits, later in that same Affidavit, that since 2021, he has been the sole party paying the cost of the lease and the automobile insurance on the parties GLE Mercedes-Benz vehicle. The Defendant's own sworn Statement of Net Worth reflects that the lease payment per month is $1,131.35 and his cross-moving Affidavit reflects that the cost of the automobile insurance per month is $403.00. Those aggregate monthly expenses are $1,534.35, or $18,412.20. It naturally begs a curious question: how does an individual afford $18,412.20 solely in automobile expenses earning $22,329.99 per year? Candidly, it makes no sense, as it would leave the Defendant with $3,917.79 per year to meet his other basic living expenses.

The Court declines to utilize the Defendant's 2022 Income Tax Return as it finds that the income reported thereon stretches the bounds thin of the actual financial reality of the Defendant (i.e., for the reasons stated aforesaid). The Court also declines to utilize the income reported on the Defendant's 2021 income tax return as the Court likewise finds that it is not an accurate picture of the Defendant's financial reality. The Court finds it prudent, therefore, to utilize the Defendant's 2020 income tax return as a guidepost for determining his income. In closely analyzing Schedule C thereon, the Court elects to impute the sum of $54,177 as income to the Defendant. In arriving at this income figure, the Court starts with the gross receipts or sales as reported of $60,602, and elects to deduct: (1) $4,400 listed as commissions and fees, (2) $1,500 listed as insurance, and (3) $525 listed as legal and professional services. The Court declines to deduct: (1) the $18,000 listed as car and truck expenses, (2) the $1,875 listed as office expenses, (3) the $15,187 listed as other business property, (4) the $1,094 listed as deductible meals, and (5) the $5,128 listed as "other expenses", as the Court does not finds that those five (5) aforesaid expenses affect or impact the Defendant's ability to pay support (see Dane v. Dane, supra), and no actual proof of those expenses were submitted on this application.

As a final point, any perceived inequity in these finding(s) for purposes of the instant motion is ameliorated by the fact that at trial - which is scheduled to commenced May 1, 2024 - the parties' financial circumstances can be fully explored. See generally Maliah-Dupass v. Dupass, 140 AD3d 839 (2d Dept. 2016). The Court notes that its findings herein relative to the incomes of the parties are without prejudice to both parties to introduce evidence as to the other's incomes and/or to propound any arguments of imputing addition income to either party.

Temporary Maintenance Determination

As is set forth aforesaid in this Decision and Order (see supra), the Court elects to utilize $108,281.30 for the Plaintiff's income and $54,177.00 for the Defendant's income. Accordingly, the Court made the following computation based upon the parties' income: the payor's percentage ($108,281.30 x 30% = $32,484.39) minus the payee's percentage ($54,177.00 x 20% = $10,835.40) = $21,648.99. The Court then compared this resulting number with the following: payor's income ($108,281.30) plus payee's income ($54,177.00), which equals $162,458.30 x 40%, which equals $64,983.32. Next, the Court subtracted one hundred percent (100%) of the payee's income ($54,177.00 from $64,983.32), which equals $10,806.32. The lesser of these amounts is the "presumptive award" pursuant to the statute, which is $10,806.32 per year, or the [*10]sum of $900.53 per month.

Applying said guidelines result in a temporary maintenance obligation of $900.53 per month to be paid by the Plaintiff to the Defendant. The Court finds no reason to deviate from the presumptive amount of support and finds that it is neither unjust nor inappropriate inasmuch as it is vacating the Defendant from the Freeport Premises and he will need to secure appropriate housing. Accordingly, in light of the prevailing case-law, the Plaintiff's income, the Defendant's account of his finances, the Court's award of exclusive use and occupancy of the Freeport Premises to the Plaintiff, the expenses listed on the Defendant's sworn Statement of Net Worth, and the facts and circumstances of this case, it is hereby:

ORDERED, that Branch (iv) of the Defendant's Notice of Cross-Motion dated October 5, 2023 be and the same is hereby GRANTED TO THE EXTENT that the Plaintiff is hereby directed to pay to the Defendant, as and for pendente lite temporary spousal support and maintenance, the sum of $900.53 per month. Said payments shall commence on the first day of the first full month following the date of this Decision and Order and shall be payable prospectively, in advance, in the first day of each month thereafter; and it is further

ORDERED, that this award is retroactive to the original date of filing of this application to wit: October 5, 2023. See Domestic Relations Law §236B(6); Dooley v. Dooley, 128 AD2d 669 (2d Dept. 1987). Retroactive sums due by reason of this pendente lite temporary maintenance award shall be paid at the rate of $250.00 per month in addition to the sums awarded until all arrears have been satisfied. The Plaintiff is entitled to a credit for sums voluntarily paid for actual maintenance and support of Defendant incurred after the making of this motion and prior to the date of this Decision and Order for which she has cancelled checks or other similar proof of payment. See Peltz v. Peltz, 56 AD2d 519 (1st Dept 1977); see also Pascale v. Pascale, 226 AD2d 439 (2d Dept. 1996).

BASIC CHILD SUPPORT

The Plaintiff seeks an award of basic child support. Commencing upon the Defendant's vacatur from the Freeport Premises, the unemancipated child of this marriage will be residing with the Plaintiff principally. An award of child support is payable to the custodial parent by the non-custodial parent (D.R.L. §240[1-b][f]). See also Papier v. Papier, 274 AD2d 806 (3d Dept. 2000) (writing that "...[a]s a general rule, a custodial parent—including a "de facto" custodial parent (see, e.g., De Arakie v De Arakie, 169 AD2d 660 (1st Dept. 1991))—is entitled to interim child support during the pendency of a divorce action..."). Rather than denying the application without prejudice to renew upon the Defendant's vacatur from the Freeport Premises,[FN4] the Court will issue an award of basic child support which shall be effective upon the Defendant's vacatur from the Freeport Premises (see infra).

In awarding temporary child support, the Court has considered the guidelines contained in the Child Support Standards Act (CSSA) [DRL § 240 (1-b)(c)] as well as the factors which permit a deviation from the standard calculation, as delineated in DRL § 240(1-b)(f), such as the financial resources of the custodial and non-custodial parent and those of the children, the physical and emotional health of the children, and their educational or vocational needs and aptitudes, as well as the non-monetary contributions that the parents will make toward the care [*11]and well-being of the children (see Formato v. Formato, 173 AD2d 274 (1st Dept. 1991). Additionally, the Court must take into account the shelter costs attributable to the children in order to avoid duplication of awards (Linda R.H. v. Richard E.H., 205 AD2d 498 (2d Dept. 1994).

Inasmuch as the Court herein is directing the payment of spousal maintenance to be paid by the Plaintiff to the Defendant (see supra), this Court must deduct said award from the payor's income and add said award to the payee's income. Therefore, the income of Plaintiff for child support purposes is $97,474.98 [FN5] and the income of the Defendant for child support purposes is $64,983.32.[FN6] Adding the two incomes together equals $162,458.30 as and for the combined parental income. The applicable child support percentage is 17% (for the one unemancipated child), which in this case equals $27,617.91 as and for a combined child support obligation. Therefore, the Defendant's pro rata share (to wit: 40%) of the combined child support obligation is $11,047.16 per year or $920.60 per month and Plaintiff's pro rata share (to wit: 60%) of the combined child support obligation is $16,570.75 per year or $1,380.90 per month.

In fashioning the award of basic child support as set forth herein, the Court has considered the parties' sworn statements of net worth, and the expenses listed on each party's statement of net worth. In addition, the Court has considered the spousal maintenance obligation that the Plaintiff will be obligated to pay hereunder. The Court has considered the respective incomes of the parties in addition to the aforesaid. The Court has also considered the fact that the trial of this matter is scheduled to commence on May 1, 2024, and that any inequity in this pendente lite order is best remedied by a speedy trial, at which time the parties' finances can be fully explored. See generally Safir v. Safir, 206 AD3d 842 (2d Dept. 2022). In any event, the application before the Court at this time is one for pendente lite basic child support, not a final award of basic child support. It is well-settled that courts considering applications for pendente lite child support may, in their discretion, apply the CSSA standards and guidelines, but they are not required to do so. See Vistocco v. Jardine, 116 AD3d 842 (2d Dept. 2014); see also Davydova v. Sasonov, 109 AD3d 955 (2d Dept. 2013). While the Court notes that the basic child support award and temporary maintenance award will result in a significant offset ($900.53 per month in temporary maintenance to the Defendant and $920.60 per month in temporary child support to the Plaintiff), the Court has carefully reviewed the moving and cross-moving papers of all parties, and notes that there is no allegation or proof that the child's needs are not being met. The Court additionally and therefore finds that the child will not be prejudiced by the basic child support award as ordered herein, and that the child's needs will continue to be met. Accordingly, it is hereby:

ORDERED, that so much of Branch (3) of the Plaintiff's Order to Show Cause dated September 7, 2023 which seeks an award of basic child support be and the same is hereby GRANTED TO THE EXTENT that the Defendant shall pay to the Plaintiff as and for pendente lite basic child support on behalf of the parties' child the sum of $920.60 per month, commencing on the first day of the first full month following the Defendant's vacatur from the Freeport [*12]Premises, and payable prospectively and continuing on the first (1st) day of each month thereafter, retroactive to the date of this application: September 7, 2023; and it is further

ORDERED, that retroactive sums due by reason of this pendente lite award shall be paid at the rate of $250.00 per month in addition to the sums awarded until all arrears have been satisfied. The Defendant is entitled to a credit for sums paid for child support incurred after the making of this motion and prior to the date of this Decision and Order for which he has cancelled checks or other similar proof of payment. See Peltz v. Peltz, 56 AD2d 519 (1st Dept. 1977); see also Pascale v. Pascale, 226 AD2d 439 (2d Dept 1996); and it is further

ORDERED, that Branch (iii) of the Defendant's Notice of Cross-Motion dated October 5, 2023 be and the same is hereby DENIED.

EDUCATIONAL EXPENSES

Domestic Relations Law § 240 (1-b)(c)(7) provides:

(7) Where the court determines, having regard for the circumstances of the case and of the respective parties and in the best interests of the child, and as justice requires, that the present or future provision of post-secondary, private, special, or enriched education for the child is appropriate, the court may award educational expenses. The non-custodial parent shall pay educational expenses, as awarded, in a manner determined by the court, including direct payment to the educational provider.

By the usage of the word "may", it is clear to the Court that educational expenses - whether for private school or college - are not mandatory. In fact, education expenses are not directly connected to the basic child support calculation, and in the absence of an agreement to pay such expenses, the determination of whether or not such expenses will be paid is within a court's discretion. Cimons v. Cimons, 53 AD3d 125 (2d Dept. 2008).

The parties agree that the subject child attends the XX School, located in Garden City, New York. The Plaintiff avers that the cost of tuition is $36,500.00 per annum. However, the Court notes that the Plaintiff's moving Affidavit appears to be misleading with respect to the payment of these expenses. The Court initially notes that the Plaintiff's Statement of Net Worth reflects primary and secondary education expenses of $3,430 per month, or $41,160 per annum. The Plaintiff's moving Affidavit states that "...[m]y mother and I pay for J.'s educational expenses..." Later in her moving Affidavit, she writes that "...[m]y mother assists in paying for J.'s tuition..." which lead the Court to believe that the Plaintiff's mother contributes to a portion of the child's educational expenses. However, the Affidavit of the Plaintiff's mother - B.H. - sets forth that "...I pay J.'s tuition from my personal funds in the amount of $36,500 per year. I make the payments for the tuition..." In light of the aforesaid, the Court declines to address the payment of this expense at this time, and elects to refer same to trial, at which time the parties' financial circumstances can be fully explored (see Safir, supra). Accordingly, it is hereby:

ORDERED, that so much of Branch (3) of the Plaintiff's Order to Show Cause dated September 7, 2023 which seeks contribution towards the educational expenses of the child be and the same is hereby REFERRED TO TRIAL.

LOANS/DEBTS

The Court has insufficient information on this application and on this Record to make a determination regarding what party should be paying what debts, and how those debts should be allocated. While the parties classify some of these debts as "expenses", the Court notes that some [*13]of these "expenses" are loans. The Court finds that it is more prudent to address these claims at the trial of this matter. At trial, when the parties' financial circumstances can be fully explored (see Safir, supra), the Court will be in a better position to determine how those debts should be allocated between the parties. Accordingly, it is hereby:

ORDERED, that Branch (4) of the Plaintiff's Order to Show Cause dated September 7, 2023 and Branch (v) of the Defendant's Notice of Cross-Motion dated October 5, 2023 be and the same are all hereby REFERRED TO TRIAL.

COUNSEL FEES

Both parties make applications for reimbursement of counsel fees. Both parties applications are denied without prejudice and with leave to renew upon the submission of proper papers, as they are not in compliance with DRL 237(a). See generally Daich v. Daich, 153 AD3d 900 (2d Dept. 2017). DRL 237(a) provides, in relevant part, that "...[b]oth parties to the action or proceeding and their respective attorneys, shall file an affidavit with the court detailing the financial agreement between the party and the attorney. Such affidavit shall include 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..." The Plaintiff's moving Affidavit is devoid of the financial arrangement between herself and her counsel. The Defendant's cross-moving Affidavit is likewise devoid of the financial arrangement between himself and his counsel. Accordingly, it is hereby:

ORDERED, that Branch (5) of the Plaintiff's Order to Show Cause dated September 7, 2023 be and the same is hereby DENIED without prejudice and with leave to renew upon the submission of proper papers; and it is further

ORDERED, that Branch (vi) of the Defendant's Notice of Cross-Motion dated October 5, 2023 be and the same is hereby DENIED without prejudice and with leave to renew upon the submission of proper papers.

Any other relief requested not specifically addressed herewith is hereby DENIED.

This constitutes the DECISION AND ORDER of this Court.

Dated: November 14, 2023
Mineola, New York
E N T E R :

___________________________________
Hon. Edmund M. Dane, J.S.C. Footnotes

Footnote 1:Paragraph numbers omitted.

Footnote 2:$117,251.00 [gross income] - $7,269.56 [FICA Social Security taxes] - $1,700.14 [FICA Medicare taxes] = $108,281.30.

Footnote 3:The Court notes an interesting observation after review of the last three (3) years of tax returns filed by the Defendant (who is a self-proclaimed financial sales consultant): his filing status is listed as "single" yet, his marriage to the Plaintiff has not been dissolved by this Court.

Footnote 4:Which would be a complete waste of judicial resources and economy.

Footnote 5:$108,281.30 - $10,806.32 = $97,474.98.

Footnote 6:$54,177.00 + $10,806.32 = $64,983.32.