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Al E.
v Joann E :: 2017 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: US Law :: Justia 12/27/22, 8:28 PM Al E. v Joann E :: 2017 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: US Law :: Justia 12/27/22, 8:28 PM
Kamaras & Joseph, PLLC
By: Philip L. Kamaras
Attorneys for Plaintiff
Receive free daily summaries of new opinions 26 Court Street, Suite 1302
from the New York Court of Appeals.
Brooklyn, New York 11242
Alter, Wolff & Foley LLP
Al E. v Joann E By: Jenifer J. Foley
Attorney for Defendant
[*1] Al E. v Joann E 2017 NY Slip Op 50543(U) Decided on April 18, 2017 Supreme Court, Kings 810 Seventh Avenue, Suite 3600
County Sunshine, 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 This opinion is uncorrected and will not be published in the printed Official Reports. New York, New York 10019
Jeffrey S. Sunshine, J.
Decided on April 18, 2017
Supreme Court, Kings County Introduction
The Court is called upon to determine whether it is appropriate to award pendente [*2]lite
Al E., Plaintiff,
maintenance, child support and counsel fees to the defendant. In considering defendant's pendente
lite maintenance application, the Court must consider whether, based upon the factors in DRL
against
236(B)(5-a), an award of temporary support above the maintenance guideline statutory cap of
$178,000 is appropriate given the lifestyle established during the marriage and the expenses
Joann E, Defendant.
detailed by defendant. The Court must also distinguish that calculating an award of maintenance
over the cap of $178,000 is not an automatic formula but is based upon a set of factors enunciated
in DRL 236(B)(5-1)(h)(1) and is not calculated as child support under the Child Support Standards
Act and Cassano v. Cassano (85 NY2d 649, 628 NYS2d 10 [1995]). The Court must also address
XXXXX
plaintiff's theory that an award of child support would not be appropriate, where the parties share
50-50% parenting time notwithstanding plaintiff reported income of $305,922 and defendant
reported income of $19,461 on the parties' joint 2015 tax returns and sets forth the proposition that
defendant will not have an incentive to settle if she is awarded child support. Additionally, the
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Al E. v Joann E :: 2017 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: US Law :: Justia 12/27/22, 8:28 PM Al E. v Joann E :: 2017 :: New York Other Courts Decisions :: New York Case Law :: New York Law :: US Law :: Justia 12/27/22, 8:28 PM
Court will address plaintiff's contention that the defendant will not have "skin in the game" if the Plaintiff to pay $6,166 per month in pendente lite spousal maintenance to Defendant retroactive to
Court grants defendant's entire application for pendent counsel fees. April 26, 2016; e) directing Plaintiff to pay an appropriate amount of pendente lite child support to
Defendant retroactive to April 26, 2016; f) directing that pendente lite Plaintiff shall pay the
mortgage and home equity loan related to the parties' residence at [omitted] Vanderbilt Avenue,
Brooklyn, New York 11205' g) directing that pendente lite Plaintiff shall continue to collect and
deposit into his separately titled bank account the rental income from the parties' real estate
Facts
located at [omitted] Quincy Street, Brooklyn, New York 11205 and [omitted] Halsey Street,
The plaintiff, an attorney, is forty-nine (49) years of age and the defendant, a real estate agent, is Brooklyn, New York 11216, subject to reallocation, and pay the carrying charges on such buildings;
fifty-four (54) years of age. The parties were married on January 19, 1999 in a civil ceremony. They h) directing Plaintiff to pay $66,747 for counsel fees incurred by Defendant in connection with this
have two (2) male children: D. E., who is seventeen (17) years of age; and M.E., who is fifteen (15) action and prospective counsel fees to be incurred in connection with this motion, without
years of age. prejudice to Defendant's or her counsel's right to apply for further fees during the pendency of this
action; I) directing Plaintiff to pay Defendant's counsel $25,000 toward Defendant's prospective
counsel fees; and j) granting to Defendant such other relief as is just and proper..."
Procedural Background Plaintiff filed an affidavit in opposition and in further support and an attorney's affirmation on
November 15, 2016.[FN1] Defendant filed a reply affidavit and a memorandum of law in support
The plaintiff commenced this action by filing a summons with notice on April 5, 2016. Defendant on November 21, 2016.
filed a notice of appearance on April 26, 2016. A request for judicial intervention was filed on
August 2, 2016. The plaintiff filed a verified complaint on May 20, 2016 and the defendant filed a On November 3, 2016, plaintiff-husband also moved by order to show cause [motion sequence #2]
verified answer on July 7, 2016. The matter was scheduled for a preliminary conference on for the following relief: "a) Granting temporary custody of the parties' two minor children
September 22, 2016 but the parties stipulated, on consent, to adjourn that appearance to October [redacted] to the Plaintiff; 2) Maintaining the parties' current financial status quo, to wit: i)
13, 2016. requiring the parties to continue paying the mortgage on their properties from the respective rents
collected; 3) Requiring the defendant to rent out for a market rate at least one unit at the property
The parties appeared on October 13, 2016 and entered into a consent scheduling order regarding
located at [omitted] Vanderbilt Avenue; 4) Appoint a certified appraiser to appraise the parties'
defendant's order to show cause (motion sequence #1) and plaintiff's cross-motion (motion real estate located at: i) [omitted] Vanderbilt Avenue; ii) [omitted] Halsey Street; and, iii) [omitted]
sequence #2). Based upon the representations of the parties as to the outstanding issues of custody Quincy Street; 5) For such other relief as the Court may deem just and proper."
and parenting time the Court, on consent, appointed an attorney to represent the parties' two (2)
minor children by written order dated October 26, 2016. Defendant filed an affidavit in opposition to motion sequence #2 on November 15, 2016. Plaintiff's
affidavit in opposition to motion sequence #1 filed on November 15, 2016, includes his reply to
On November 3, 2016, the defendant-wife moved by order to show cause (motion sequence #1) for motion sequence #2.
the following relief: "a) directing that pendente lite Defendant shall have exclusive use and
occupancy of the parties' residence located at [omitted] Vanderbilt Avenue, Brooklyn, New York On November 21, 2016, the Court held a preliminary conference and the parties entered into a
11205; b) directing that pendente lite Plaintiff shall have exclusive use and occupancy of the parties' consent stipulation resolving the issues of custody and parenting time, [*4]appraisals and exclusive
residence located at [omitted] Quincy Street, Apartments 1 & 2, Brooklyn, New York 11238; c) use and occupancy.[FN2] The parties also stipulated on consent to appointment of a neutral
establishing, as and for an interim [*3]parenting schedule, that each party shall have parenting appraiser to value the parties' three (3) Brooklyn properties [FN3] and a neutral appraiser for the
time with the Children in alternating one week blocks commencing at 6:00 p.m. on Thursdays, and plaintiff's law practice [FN4] . The payment of the neutral appraisers is being paid 100% by
that the parties shall equally divide holidays and the Children's school vacations; d) directing plaintiff subject to reallocation. The Court heard oral argument on the remaining relief requested

by the parties in their cross-applications on November 21, 2016. The Court also issued a written During the marriage the parties purchased two (2) four-unit buildings in Brooklyn as investment
order dated November 21, 2016 that pending the Court's written decision on motion sequences #1 properties: the first in 2003 and the second in 2008. Defendant argues that she managed the
and #2 the plaintiff shall pay $2,000.00 monthly in interim support, without prejudice, to buildings during the marriage but that all of the rental income was deposited into plaintiff's bank
defendant and that plaintiff was to continue to pay all carrying charges and expenses he was account.
currently paying on behalf of defendant and the parties' children.
Defendant contends that the parties have had a long history of marital difficulties which, she
The parties were scheduled to appear for a compliance conference on January 30, 2017 but the contends, resulted from plaintiff allegedly engaging in "several affairs" during the course of the
parties stipulated on consent to adjourn that conference to March 21, 2017 based upon plaintiff marriage which she first learned about in mid-2003. She argues that thereafter the parties
retaining new counsel to represent him in this action.[FN5] Early in March, counsel for the parties continued to have marital difficulties and that plaintiff initially discussed divorce in 2008, that the
notified chambers staff that they may be resolving the pending pendente lite issues. Chambers staff parties lived separate and apart for approximately two (2) months in 2009 and that she found
notified counsel that a written decision on the pending applications was in drafting stage and "provocative photos" exchanged between plaintiff and "another girlfriend" in 2012.
requested that, in an effort to allocate judicial resources efficiently that counsel notify the Court by
written stipulation if they were requesting additional time to resolve the pendente lite issues or if a Defendant posits that the parties maintained separate finances during the marriage and never
pendente lite agreement had been reached between the parties. In an effort to to ascertain the opened joint bank accounts. Defendant contends that while she was working this arrangement was
status the Court directed the parties to appear for a status conference on Monday, March 13, 2017. "fair" but, she argues, after she resigned to raise the parties' children the plaintiff exercised
On the record on March 13, 2017 counsel for the parties represented that they were no longer financial "control" over her by "limiting" her access to funds. Defendant further contends that
engaged in settlement conversations and they were no longer requesting that the Court hold in plaintiff "isolated" her from her friends and family and referred to her in demeaning terms.
abeyance issuing a written decision on the issues sub judice. Defendant argues that she was primarily responsible for the daily care of the parties' children
during the marriage while her own career was "thriving" and while she was spending "a significant
amount of time" supporting plaintiff's growing legal career and his pursuit of developing a sports
Parties Contentions agent practice. She avers that when she was not traveling for work she was responsible for the
children in the mornings and evenings before and after the nanny arrived. She contends that
plaintiff refused to participate in night time care for the children and that she was solely
Pendente Lite Maintenance and Child Support
responsible for obtaining child care arrangements for the children when she was required to travel
Defendant-wife worked as a producer for a cable television channel earning $90,000 annually and for work. Defendant contends that plaintiff did not support her work travel and accused her of
plaintiff-husband had a law firm with a partner when the parties met in August 1998. The parties engaging in extramarital affairs.
moved into the apartment owned by defendant after the marriage but that the parties purchased a
marital residence in June 1999 using the proceeds from the sale of defendant-wife's separate Defendant avers that D.E. was diagnosed with a learning disability and she "doggedly" pursued
property apartment from which she [*5]netted $205,000 in sale proceeds. Defendant claims she academic admissions personalized to his needs without any assistance from plaintiff. She argues
that M.E. was diagnosed with learning disabilities in preschool and that plaintiff did not participate
used $125,000 in sale proceeds for the down payment and invested another $80,000 for
renovation. She argues that plaintiff did not contribute any money to the down-payment or in any of the children's evaluations or in preparing or filing any paperwork to obtain special
renovations. She contends that she paid the mortgage for the marital residence, plus all the education resources for the children. She contends that in addition to providing all of the daily
household expenses and the family's health insurance, from her salary and rental income from child care needs for the children [*6]— taking them to school and after school activities/therapies,
apartments in the marital residence until she resigned from her job after the parties' two (2) cooking dinner, supervising homework, cleaning the marital residence, putting the children to bed,
children were born. etc. — she also took M.E. to "occupational and speech therapy approximately three time per week"
and implemented at-home interventions for him which, she argues, plaintiff did not participate.

She also argues that she alone was instrumental in seeking additional neuropsychological with homework and preparing for admissions tests. She asserts that plaintiff does "not regularly
evaluations for M.E. when he was preparing for third-grade and that she "embarked on a mission attend" any of the children's non-wrestling activities or school events. She asserts, in effect, that
to get the City of New York to contribute to his tuition" at a specialized educational environment in her constant involvement and advocacy in the children's academics has helped them succeed
Brooklyn where the tuition was approximately $57,000 annually. She also contends that she alone particularly given their respective struggles over the years.
"navigated the high school admission process" for the children including arranging "extra time" for
entrance examinations and obtaining specialized tutors so that M.E. could enroll in a "mainstream In his affidavit dated November 3, 2016, plaintiff asserts that he picks up and drops off the children
Catholic high school with a good wrestling program...." at their wrestling practices and matches and that he "interact[s]" with their coaches. He does not,
however, specify how frequently he is responsible for the children's transportation for these events.
Defendant contends that in late 2004 the parties agreed that she would resign from her job to raise Defendant asserts that "based on our conversations I can comfortably say that the boys would
the parties' children and to support plaintiff's career. She avers that plaintiff was "out of town prefer to live with me." He asserts that "defendant has a major inability to parent and discipline"
approximately 40-50% of the time...." She argues that thereafter the parties' "often argued about and that, contrary to the defendant's assertions, he has "always been very involved with the
money" because she had no access to funds and that plaintiff exercised financial control over her by children." He avers that "[a]s a partner in my own firm, I have a flexible schedule." He asserts that
providing her a "$400 allowance" monthly to cover the family's needs. She argues that the he takes the children "fishing" and on "vacations."
"allowance does not come close to covering" the "actually monthly expenses" for her and the
children and that she "was forced to beg" plaintiff for additional money each month. She contends Defendant contends that the parties' marital tensions escalated in 2015 and that plaintiff has
that as a result she began to accumulate "significant credit card debt." degraded her in front of the children by criticizing her limited financial contributions to the family.
Defendant contends that plaintiff has actively engaged the children in the divorce action and in
Defendant obtained a real estate license in 2008 but contends that her income has been limited discussions about the parties' financial situation and that, thereafter, she found the children
because of her daily obligations for the family. She argues that her income of $20,000 - $50,000 researching "child support" and "child custody" on the internet.
annually was used to pay for the children's summer camps and tutoring.
She avers that in 2016 plaintiff took several vacations with the parties' children but refused to take
Defendant contends that the children's wrestling program is the only aspect of the children's lives her. She posits that plaintiff denigrates her in the presence of the children and that, she claims, as a
in which plaintiff regularly participates. She contends that plaintiff selected additional wrestling result the children have started "echoing statements" used by plaintiff to demean her. She contends
coaching for the children outside of their school programs which required her to spend hours that the children are beginning to adopt what she believes are the plaintiff's "misogynistic views...."
driving the children from their respective schools in Manhattan and Brooklyn to and from She argues that in February 2016 the parties agreed to pursue a divorce.
practices in Long Island "two to three times per week" from 2011-2015 often not returning home to
Brooklyn after the wrestling practices until 10:00 p.m.. Defendant contends that the wrestling has Defendant asserts that the parties have shared parenting time with the children "approximately
been "greatly" beneficial for the children but that it has been time consuming and it has interfered 50% split on an ad hoc basis" using an alternating week schedule since July 2016. The parties
with her ability to build her career in real estate because it has allowed her "little mid-week time to entered into a written consent stipulation dated November 21, 2016 setting a temporary parenting
work" because she is responsible for transporting the children from school to various wrestling time schedule whereby the children will alternate weeks with each parent.
practices. She also argues that the children's extensive wrestling obligations on the weekends also Defendant contends that in 2016 plaintiff combined and renovated two of the four apartments
limit her ability to work on the weekends. together with the basement of one of the parties' investment properties into a triplex apartment
Defendant concedes that plaintiff has taken an active roll in the children's wrestling during their where he has lived since July 2016. Defendant contends that plaintiff "spared no expense on the
middle and high school years; however, she avers that plaintiff has continued to leave the renovation" and "purchased expensive furniture, art, and electronics."
children's day-to-day care and all educational matters up to her. [*7]She asserts that she is the sole
parent who coordinates and facilitates the children's academics, including finding tutors, helping

Defendant's 2015 Income and Affidavit of Net Worth

Exclusive Use and Occupancy
Defendant avers that her 2015 income from all sources was $19,461.[FN19]
On November 21, 2016, the parties entered into a written stipulation providing that pendente lite
defendant shall have exclusive use and occupancy of the marital residence [*8]and plaintiff shall Defendant's affidavit of net worth dated April 5, 2016 lists the following monthly expenses (totaling
have exclusive use and occupancy of specific units in one of the parties' investment properties. In $32,709 monthly): housing, $13,885; utilities, $1,862 [FN20] ; food, $1,223 [FN21] ; clothing,
his order to show cause [mot. seq. #2], plaintiff requests that the Court order the parties to $395 [FN22] ; laundry, $100 [FN23] ; insurance, $5,839 [FN24] ; unreimbursed medical, $1,052
"maintain the parties' current financial status quo, to wit: ...requiring the parties to continue [FN25] ; [*10]household maintenance, $1,331 [FN26] ; household help, $240 [FN27] ; automotive,
paying the mortgages on their properties from the respective rents collected;...requiring the $805 [FN28] ; educational, $3,958 [FN29] ; recreational, $1,125 [FN30] ; miscellaneous, $894
[FN31] .
defendant to rent out for a market rate at least one unit" at the marital residence.
Plaintiff's 2015 Income and Affidavit of Net Worth Marital Residence Expenses
Plaintiff's affidavit of net worth dated June 22, 2016 lists monthly income of $23,392 and the The parties' affidavits of net worth reflect almost identical expenses for almost all of the monthly
following monthly expenses (totaling $31,283 monthly): housing, $12,448 [FN6] ; utilities, $1,450 expenses. The largest difference between the parties is for household maintenance which plaintiff
[FN7] ; food, $1,450 [FN8] ; clothing, $600 [FN9] ; laundry, $180 [FN10] ; insurance, $3,718 alleges defendant has inflated by $461. Plaintiff claims that certain household maintenance
[FN11] ; unreimbursed medical, $900 [FN12] ; household maintenance, $610 [FN13] ; household expenses in defendant's affidavit of net worth are "absurd" such as "[o]ur 'exterminator' costs (she
help, $500 [FN14] ; automotive, $1,380 [FN15] ; educational, $3,050 [FN16] ; recreational, $2,217 claims $15) consists of a $3.99 can of Raid." Defendant avers that the expenses in her affidavit of
[FN17] ; miscellaneous, [*9]$2,780 [FN18] . net worth are derived from an examination of payments and are accurate.
Defendant argues that plaintiff's income exceeds what is disclosed on his affidavit of net worth
dated June 22, 2016 because his listed monthly expenses are $31,283 while his monthly income is
listed as $23,392. Defendant contends that plaintiff's representation regarding his income is not Mortgage and Utility Expenses
credible because his monthly expenses are approximately $100,000 greater than his reported It is undisputed between the parties that the rental income from their two (2) investment
income annually and because during the marriage plaintiff "had enough money" to put down- properties cover the mortgage payments for all three (3) properties, including the marital
payments on two (2) investment properties and to purchase "two luxury cars and a $129,000 residence. In his affidavit dated November 10, 2016 plaintiff avers that "the mortgages are paid
boat...." from the rental income" generated by the parties' investment properties. Plaintiff concedes that in
She also contends that plaintiff must be earning much higher income because the 2015 gross addition to paying the carrying charges for the three (3) properties that the rental income from the
receipts of his law firm partnership exceeded $2.5 million and he reported gross receipts of more two (2) investment properties also resulted in a "small income" as such neither party paid carrying
than $130,000 in the months after he terminated his law firm partnership and started his own charges out of his or her salary or income generated from employment.
firm. She also contends that plaintiff pays personal expenses though his business. The parties disagree as to the monthly cash payment plaintiff has provided voluntarily to
defendant: plaintiff avers that it is $800 while plaintiff avers that it is $600 because $200 of the
$800 is provided for her to provide to "maintenance workers" at the [*11]two (2) investment
properties.[FN32]

Defendant concedes that plaintiff has continued to pay the mortgage and home equity loan earning approximately $90,000. She argues that she "paid nearly all" of the parties' living expenses
payments on the marital residence ($5,929 monthly) and the utilities ($944 monthly) and that he during the early years of the marriage "so that Plaintiff could [*12]pay off his student loans and
has voluntarily provided her with $600 in cash monthly for her personal expenses which, she build his practice" but that after the parties' two (2) children were born the parties jointly decided
argues, is insufficient to meet her basic daily needs. As a result, she argues that she has incurred that she should would resign from her employment so that she could take "primary responsibility"
almost $12,000 in credit card debt since the date of commencement for her daily living expenses for the children's "day-to-day needs and manage their special education needs so that Plaintiff
including items for the children when they are in her care. could continue to build his practice and enter the sports agent field." She further argues that she
"supported Plaintiff's business efforts by entertaining his clients at our home and at events" and
that she has been the primary party "responsible for managing our investment real estate
properties, securing reimbursements from the City of New York for [son's] expensive special needs
Parties' Joint 2015 Federal Tax Return school, and preparing nearly all of our family meals..." She argues that plaintiff has been the
The parties' joint 2015 federal tax return reports income of $325,383 and of which $19,461 was primary financial support for the family for many years and that he has restricted her access to
earned by defendant.[FN33] The remaining $305,922 of income is comprised as follows: $56,514 marital income to exert financial control over her. She posits that her daily responsibilities for the
[REDACTED Law Firm, PLLC]; $219,330 [REDACTED LLP]; and $33,067 [REDACTED Sports parties' children have made it very difficult to expand her income from her real estate business.
LLC]. The parties' real estate income is detailed on Schedule E and reports $152,284 in rents Pursuant to the statutory calculation, the guideline sum of pendente lite maintenance up to the
received less $142,257 in expenses leaving a reported annual income of $10,529. $178,000 cap would be $2,561 monthly. In her affirmation in support, defendant's counsel argues
Plaintiff adamantly rejects defendant's allegations regarding imputation of income to him and that the Court should exceed the statutory guideline cap of $178,000 based upon the facts
asserts that his income as reflected on the parties' joint tax returns is accurate and, he argues, presented, including the marital standard of living, when calculating an award of pendente lite
defendant should be limited to the income detailed in the parties' joint tax returns since she signed maintenance. Defendant's counsel posits that the Court should impute income of $750,000 to
them and has not alleged any basis for an innocent spouse exception.[FN34] At the same time, plaintiff and apply the statutory guideline calculation to the full sum of imputed income which
plaintiff, in his affidavit dated November 3, 2016, avers that he has "no idea" what defendant would, defendant's counsel calculates, yield a pendente lite maintenance award of $12,095
earned in 2015, despite his assertion that the parties should be bound by the incomes reported in monthly. Defendant's counsel contends that if plaintiff continues to pay the mortgage and home
their joint tax returns. equity line of credit on the marital residence ($5,929 monthly) then his maintenance obligation
should be reduced to $6,166 monthly ($12,095 less $5,929 = $6,166).
Defendant'sPendente Lite Maintenance Argument

Plaintiff's Argument Against Pendente Lite Maintenance
Defendant seeks an award of $6,166 monthly in pendente lite maintenance "plus an appropriate
amount of child support" retroactive to April 26, 2016 (date of notice of appearance and demand Plaintiff takes the position that defendant's request for pendente lite maintenance is unnecessary
for complaint) and that plaintiff continue to pay the mortgage and home equity loan for the marital because, he asserts, he pays the mortgage on the marital residence, "give[s] her $800 per month"
residence. and pays "every expense" listed on defendant's amended statement of net worth dated April 5,
2016 "except her clothes, personal expenses and food for her and the boys when they visit her." He
argues that defendant's "actual out of pocket expenses are minimal: he asserts that the "actual"
monthly expenses paid directly by the defendant total $2,260.
Defendant was employed full-time as a cable network producer when the parties married in 1999
Plaintiff asserts that "maintaining the status quo financially is most fair pendente lite" and that

instead of the Court ordering him, the more monied spouse, from paying pendente lite defendant. While in his affidavit dated November 10, 2016, plaintiff avers that he has "been paying
maintenance that defendant can pay her personal expenses by "rent[ing] out one or two units at all of our family expenses for years" because, he contends, "defendant has contributed almost
[marital residence] for $3,000 per month each![emphasis in original]" Plaintiff asserts that the top nothing" plaintiff also argues that defendant "can return to the workforce and get a job more
two floors of the marital residence "are rentable" and that the parties "used to have tenants" on suitable to her ability, instead of dabbling in real estate, which has not seemed to yield much fruit
those floors but now the parties' children lives on those floors. He argues that the children "can after eight years." He concedes that defendant has "not made a serious foray into the workplace
move down to the garden level and share a room when they visit their mother...." Plaintiff contends since then" although he asserts that he has encouraged her to do so. He argues that defendant has
that this arrangement would provide [*13]"$5,000-$6,000 in rental income each month."He had "all the hours the children are in school and wrestling practice to work" but that she "prefers to
argues that defendant is engaging in wasteful dissipation because she has not agreed to rent out work minimally."
floors in the marital residence to generate additional income for the parties.
Plaintiff argues that assuming defendant's reported income of approximately $1,200 monthly is
In his affidavit dated November 10, 2016, plaintiff concedes that the parties have not rented out correct that her income plus the $800 in cash he is currently providing [*14]to her "should be more
units in the marital residence since 2008 but, he argues, reducing the marital residence by two than adequate for her..."
floors would be "more than ample for [plaintiff] and the boys." He contends that there is "no useful
reason to continue using the entire four floors of the [marital residence] for a family of three..." Plaintiff's counsel argues that awarding defendant pendente lite maintenance based upon the
Plaintiff argues that there is "nothing inequitable" about his position because it is "intelligent statutory formula "would result in a bonanza for the defendant" because "[o]f the $30,0000 in
financial management." expenses...less than $3,000.00 are incurred by the defendant each month." Plaintiff's counsel also
argues that "defendant could be working full time" and that "[s]trict application of the statutory
Plaintiff also proposes that if the Court were to award pendente lite maintenance to defendant that formulas" would result in "extended litigation" because, he contends, "the children will end up
the award "should be reduced by 30% because [defendant] lives rent-free..." Plaintiff opines that living primarily with the plaintiff..."
the reduction by 30% is based upon "[t]he general rule of thumb is that rent should be no more
than 30% of your income..." In his affirmation in support dated November 14, 2016, plaintiff's counsel argues that the Court
should not impute any income to plaintiff and that defendant should be "held accountable for the
In her affidavit dated November 14, 2016 defendant avers that the parties have not rented out units income reported on the parties' joint tax return...." However, plaintiff's counsel also argues that "
in the marital residence since 2006 and that plaintiff does not address the "impact" that his [i]f anything, the court should impute $90,000 to the defendant, which she says she earned in
proposal would have on the children. Defendant avers that there is "only one staircase" in the 2004." Plaintiff's counsel also asserts that any award of pendente lite maintenance should be
marital residence so if she "rented one of the floors to tenants, the Children and I would encounter calculated using defendant's 2014 income even though plaintiff annexed the parties' 2015 federal
the tenant(s) and/or the tenants' guests as we travelled [sic] between out bedrooms, the kitchen, income tax returns to his application. In his November 14, 2016 affirmation, plaintiff's counsel
and the living room which are on different floors" and that she and the children would "be required offered no credible argument for why the Court should use the parties' 2014 tax returns instead of
to lock each floor and carry keys with us to go, for example, from our bedrooms to get a snack in the 2015 tax returns.
the kitchen." Defendant also asserts that plaintiff's proposal that the children "should move out of
Plaintiff's counsel, in his affirmation dated November 13, 2016, argues that the Court "should
their own rooms and into a small, shared room in the basement in the 'garden level' is contrary to
the Children's best interests and a thinly veiled attempt to make living with me less attractive and presume a predominance of non-marital related charges" are the basis for defendant's assertion
comfortable for them." She argues that the children "have lived in the Marital Residence as a single that she is incurring credit card debt due to plaintiff's alleged underpayment of voluntary support
fmaily home for most of their lives and are accustom to having their own bedrooms and space" and during the pendency of this action.
that "[r]enting out their bedrooms would be upending and unnecessary." Plaintiff contends that he has been paying "all" of the marital expenses for many years and
Plaintiff also opposes an award of pendente lite on a theory essentially of imputation of income to plaintiff's counsel asserts that defendant pays "none of the marital expenses and only some of her

own expenses..." Defendant avers that her limited income has been used to pay for the children's filing and service. Defendant's counsel seeks $66,747 for counsel fees, which she contends is the
summer camp and tutoring expenses as well as toward her personal expenses during the marriage. sum incurred that will have been incurred by defendant in connection with this action after oral
argument of these motions, as well as an award of $25,000 in prospective counsel fees.
Plaintiff, in his affidavit dated November 10, 2016, argues that defendant's counsel fee request "is
Defendant's Pendente Lite Child Support Argument exorbitant" because, he argues, he has only paid his attorney approximately $10,000.00 in counsel
fees. He opposes defendant's counsel fee application arguing that his attorneys' hourly billing rates
Defendant's counsel argues that a pendente lite basic child support award calculated based upon are "cut-rate" compared to the hourly rate charged by defendant's counsel. He asserts that "[i]f
imputed income of $350,000 to plaintiff is appropriate here. there is a playing field that needs leveling in this matter" it is from defendant because "[s]he is
In his affirmation dated November 14, 2016, plaintiff's counsel posits that since "defendant herself paying over double per hour" what he is paying. He further asserts that he finds the hours detailed
only seeks split custody and the children live with her at most 50% of the time" that any child by defendant's counsel as spent preparing defendant's order to show cause "incredibly high."
support award "should be far less than the full guidelines" amount. Plaintiff's counsel does not Plaintiff argues that he is "already paying" defendant's counsel fees because she paid using the
offer any statutory or case law in support of this argument. parties' line of credit which he claims his income alone is paying. He argues that an award of
counsel fees "anywhere near the amount of her request would be inequitable and militate..."
Plaintiff's counsel in his affirmation dated Novmeber 13, 2016 argues that "defendant will not have
Counsel Fees skin in the game" if plaintiff is made to pay all or a significant amount" of her counsel fees.
Defendant argues that the Court should award her counsel fees because she is the less monied Plaintiff's counsel argues that "it is the defendant seeking to wear down the plaintiff with her
spouse having "abandoned her career" to support the family at home and because, she contends, extremely high-priced attorneys and her exorbitant request for counsel fees." He further argues
plaintiff's actions and litigation positions have forced her to incur "avoidable counsel fees". that if the Court awards counsel fees to defendant it should only be "an award of attorney fees in
Defendant's counsel also contends that plaintiff has engaged in "wasteful dissipation of marital line with what the plaintiff himself has paid to his attorneys." He also asserts that plaintiff has no
property" but does not detail what of plaintiff's financial [*15]actions she believes amounted to source from which to obtain funds to pay a counsel fee award to defendant.
wasteful dissipation. Plaintiff's affidavit of net worth dated April 2016 lists total assets of $6,354,500 and the only
Defendant's counsel is billing at $675 hourly for the supervising attorney and $480 hourly for liabilities listed are the mortgages on the parties' three (3) properties, each of which, according to
associates. Defendant's counsel affirms that many attorney billing hours were spent "trying to plaintiff's affidavit, total $1,576,889. Plaintiff's affidavit of net worth [*16]does not list any other
settle this case" and participating in voluntarily mediation before the request for judicial debts or liabilities.
intervention was filed. As of the filing of her order to show cause defendant had incurred $49,722
in legal fees for services rendered in connection with this action. Defendant's counsel notes that
this sum of counsel fees "reflects reductions from actual time spent, including reductions for Discussion
multiple attorneys working on a single task." Defendant's counsel affirms that defendant was
charged $17,376 in connection with preparing the order to show cause for pendente lite relief This action was commenced on April 5, 2016, as such, the statute in effect at that date was DRL
[motion sequence #1] and that she anticipates defendant will incur approximately $14,700 in
236 [B], effective October 25, 2015, requiring Courts to calculate and award temporary
counsel fees for responsive papers for motion sequence #1 and #2 and that $2,025 will be incurred maintenance awards derived from applying statutory formulas to parties' annual income in an
for the court appearance to argue the application and another $300 in disbursements required for effort to regulate and create more consistency among pendente lite maintenance awards. This

statutory provision is commonly referred to as the temporary maintenance guidelines (the including groceries, by renting out the two floors of the marital residence where it is undisputed
"guidelines"). that the parties' two (2) teenage children have lived during the marriage because that would be
maintaining the status quo is entirely disingenuous. Despite plaintiff's assertions that, now that the
The legislation established factors that a Court may consider when deviating from awarding the marriage is being dissolved, less living space would be "adequate" for the defendant it is clear that
presumptively correct temporary maintenance under the guidelines. In applying the statutory such an arrangement would be a dramatic change from the way the parties lived during the
formulas, the Court must first determine the parties' respective annual incomes pursuant to the marriage. Additionally, defendant's position that such a change would place the onus on the
Child Support Standards Act. Here, the parties' lifestyle and their respective representations parties' children during this already challenging time as their parents navigate through this divorce
regarding their monthly expenses during the marriage greatly exceed the income reported on their is not misplaced. Plaintiff's request that the Court should remove the children from their rooms
2015 joint tax returns. At the same time, the parties were able to purchase a marital residence and and moving them to a shared bedroom while they are in the defendant's care so that plaintiff does
two (2) four-unit dwelling investment properties in Brooklyn and the following unencumbered not have to pay pendente lite maintenance is denied.
vehicles: a 2010 BMW 750Li, purchased fro $54,000; a 2007 Porsche Boxster, purchased for
$30,000; and a 2003 Lexus GX 470, purchased for $12,000. The parties also purchased a Silverton The defendant's itemized expenses in her Affidavit of Net Worth, at this time, appear consistent
Yacht for $129,000 which is also unencumbered.[FN35] Defendant also lists an IRA with a balance with the lifestyle she and the children would have enjoyed had the marriage continued. The Court
of $380,027 of which she asserts $236,995.77 was contributed before the parties married. notes that the expenses detailed by plaintiff are almost identical to those detailed by the defendant.
Plaintiff primarily disputes $461 of the $911 in household expenses detailed by defendant which he
The only liabilities listed on plaintiff's affidavit of net worth are mortgages totaling approximately argues are "absurd" including "[o]ur 'exterminator' costs (she claims $15) consists of a $3.99 can of
$1,576,888 on the parties' real estate properties which he lists as having a total value of Raid." The monthly expenses listed by defendant are as follows:
$6,100,000. Plaintiff lists no credit cards on his affidavit of net worth or any other revolving line of
credit or outstanding loans or debts. Defendant lists two credit cards with a total outstanding
balance of $22,405 in debt of which she avers $11,757 was incurred post commencement for living
expenses for herself and the children when they are in her care. ExpenseMonthly CostNotes
Clearly, the expenses detailed by the parties, the value of the marital assets and the limited extent Marital Residence mortgage$5,029It is undisputed by the parties that this expense is paid using
of liabilities, including no credit card debt reported by plaintiff, reveal plaintiff's income and/or
rental income from the parties' investment properties — see plaintiff's affidavit dated November
access to funds is greater than reported. The Court will not, at this time, accept plaintiff's argument 10, 2016
that defendant, who has not been a principal source of financial support for the family in many,
many years by plaintiff's own affidavit is bound by the joint tax returns for the purposes of Marital Residence HELOC$900Plaintiff asserts that he is currently paying this expense — it is not
determining pendente lite support where the parties' respective representations regarding the clear from either parties' papers whether this is also paid from the rental income generated from
monthly expenses are almost [*17]identical. Additionally, plaintiff does not assert that defendant the investment properties or paid from plaintiff's employment income
was, in any way, involved in the preparation of the business tax returns that resulted in his
personal reported income. Marital Residence utilities$944
Groceries$408
Pendente Lite Maintenance

Lunches at work$160
The novel theory proffered by plaintiff that defendant should be required to pay her daily expenses,

Liquor$36 TOTAL$6,691Defendant lists the following expenses for the children:
Dining Out$368 Expense
Monthly Cost
Ordering In$52
School tuition
Clothing$395$148 is listed as clothing for the children; $247 is listed as clothing for the defendant-
wife $2,158
School transportation
Laundry$100
$933
Defendant's Therapist$680
School supplies
Household maintenance$911Plaintiff asserts that this expense is inflated by the sum of $461 for $67
such expenses as extermination which defendant lists as $15/month and plaintiff contends is "a
$3.99 can of Raid" Tutoring
Housekeeper$240 $800
Camp
Car$805
$125
Vacation$250
Team Sports
Movies$30 $142
Theater$98 Sports Lessons
Videos$65 $160
Total
Cable$195
$4,241
Health Club$60
Plaintiff argues that if the Court awards defendant pendente lite maintenance that under Khairi v.
Miscellaneous (grooming, beauty, computer, etc.)$894 Khairi the Court must direct that defendant is financially responsible to pay the carrying charges
on the marital residence (93 AD3d 194, 938 NYS2d 513 [1 Dept.,2012]). In Khairi, the wife sought
an award of pendente lite maintenance under Domestic Relations Law 236(B)(5-a)(c), as effective

October 25, 2015, and an award of child support in compliance with the CSSA calculation as well as that for more than a decade the parties and the parties' children enjoyed the full use of the marital
an order of the Court that the husband directly pay the carrying costs on the marital residence and residence. Plaintiff cites no legal authority in support of this position and the Court is not aware of
the Court found that "calculating the guideline amount and then simply adding the direct mortgage any.
payment on top of that, the motion court awarded more than the amount reached by the formula,
without providing the required explanation" (93 AD3d at 200). The holding in Khairi has come to Plaintiff's position now that he has established a separate residence that limiting the defendant and
be referenced for the principle that, absent unique facts and circumstances, an award of temporary the children to, effectively half, the marital residence is "more than adequate" is not adopted by
maintenance and an order directing the payor to [*18]make direct payment of the payees carrying this Court. Additionally, the Court finds that plaintiff's argument that there is "no useful reason"
charges results in a "double dip" situation. In fact, this consideration was incorporated into the for defendant not to now, after many years, [*19]"generate income" by renting out parts of the
maintenance guidelines statute as amended September 25, 2015. marital residence is incongruent, certainly pendente lite, with maintaining the status quo.
The Court notes that under the facts and circumstances of this case it is undisputed that the parties This Court has fully considered the temporary maintenance guidelines and statutory factors in
have used the rental income from the parties' investment properties to pay the carrying charges on DRL §236(B)(5-a)[effective October 25, 2015]). The parties' incomes, as reported on their joint
all of the parties' properties, including the marital residence.[FN36] As such, plaintiff is not, as he 2015 federal income tax returns, the most current tax returns provided to the Court, are as follows:
argues, paying the mortgage for the defendant. Rather, the plaintiff avers in his November 10, 2016 plaintiff's gross income, $305,922 (no FICA or NYC taxes are deducted as no proof of payment was
affidavit that the rental income is funding the mortgage on the marital residence: "[t]he defendant provided); defendant's income, $19,461 (no FICA or NYC taxes are deducted as no proof of
lives for free in the marital residence, as the mortgages are paid from the rental income from our payment was provided). The calculation provides as follows:
other properties." It appears, based upon plaintiff's affidavit, that the use of that investment
income to pay the mortgage on the marital residence is increasing the total equity available in that
property which will, eventually, be available for the parties to apportion in a settlement or subject 1st Calculation:
to equitable distribution upon an ultimate determination by the Court. As such, the facts presented
here are distinguishable from the circumstances contemplated as a "double-dip" by the Court in 20% of the payor's income up to and including the cap ($178,000)
Khairi v. Khaira (93 AD3d 194, 938 NYS2d 513 [1 Dept.,2012]). As such, the Court directs that
parties continue the status quo by using the rental income generated by the investment properties - 25% of the payee's income ($4,865.25) = $30,734.75;
to pay the carrying charges on the marital residence. The plaintiff shall continue to be solely
(100%) financially responsible for maintaining the insurance policies in place for the family,
including the defendant's auto insurance subject to reallocation at time of trial. 2nd Calculation:
The Court rejects plaintiff's position that defendant should be required to removed the parties' two Payor's income up to and including the cap ($178,000.00)
(2) teenage children from their separate bedrooms and move them to a shared bedroom in the
lower level of the marital residence, renovate the marital residence to accommodate tenants and + Payee's income ($19,461) = Combined income ($197,461)
then rent out the top floors of the marital residence in order to subsidize daily living expenses for
her and the children when they are in her care. Plaintiff contends that this would be maintaining 40% of combined income $197,461 x .40 = $78,984.40)
the status quo because, he argues, the parties rented out parts of the marital residence early in the - Payee's income ($19,461) = $59,523.40.
marriage. Given the financial resources of these parties and the lifestyle established by the parties
during the marriage the Court categorically rejects this proposition finding that, contrary to The first calculation resulted in the lower of the two awards. Thus, pursuant to the temporary
plaintiff's assertion, it would in fact be a fundamental change in the status quo. It is undisputed maintenance guidelines calculation, the basic pendente lite maintenance award would be:

$30,734.75 (annually); $2,561.23 (monthly). children or stepchildren, elderly parents or in-laws provided during the marriage that inhibits a
party's earning capacity;(j) the tax consequences to each party;(k) the standard of living of the
Here, the payor's income exceeds the $178,000 cap. DRL 236(B)(5-a)(h)(1) provides the Court parties established during the marriage;(l) the reduced or lost earning capacity of the payee as a
with discretion to award additional pendente lite maintenance above the award calculated using result of having forgone or delayed education, training, employment or career opportunities during
the guidelines. the marriage; and(m) any other factor which the court shall expressly find to be just and proper.(2)
Where the court finds that the guideline amount of temporary maintenance is unjust or
The Court notes that in considering income above the statutory cap there is a very important and
fundamental difference between calculating basic child support under the Child Support Standards inappropriate and the court adjusts the guideline amount of temporary maintenance pursuant to
Act and the Court making an award of maintenance using the maintenance guideline statute as this paragraph, the court shall set forth, in a written decision or on the record, the guideline
amended October 2015. When calculating an award of pendente lite maintenance on income above amount of temporary maintenance, the factors it considered, and the reasons that the court
the statutory cap DRL § 236(B)(5-a) provides that the formula is only applied to the first $178,000. adjusted the guideline amount of temporary maintenance. Such decision, whether in writing or on
If the Court finds it appropriate to consider income over the $178,000 the Court must consider the the record, shall not be waived by either party or counsel.
factors set forth in DRL § 236(B)(5-a)(h)(1); however, the maintenance guideline statute formula is Based upon the factors detailed above, the Court finds that an additional award of $1,500 above
not applied when calculating an award on income above the $178,000 cap. the award calculated using the maintenance guideline statute formula up to the cap of $178,000 is
The Court may deviate from the guideline amount of temporary maintenance, including awarding just and appropriate based upon: (b) the present or future earning [*21]capacity of the parties,
temporary maintenance on income above the cap, if the Court finds that, upon consideration of one including a history of limited participation in the workforce by defendant; and (k) the standard of
or more of the factors set forth in DRL § 236(B)(5-a)(h)(1), strict application of the statutory living of the parties established during the marriage as fully detailed by the Court herein above in
formulas would be unjust or inappropriate. DRL 236(B)(5-1)(h)(1) and (2) provide as follows: the chart of monthly living expenses presented by defendant with only nominal differences noted
by plaintiff.
(1) The court shall order the guideline amount of temporary maintenance up to the income cap in
accordance with paragraph c of this subdivision, unless the court finds that the guideline amount Plaintiff is hereby directed to pay pendente lite maintenance to defendant in the sum of $48,734.76
of temporary maintenance is unjust or [*20]inappropriate, which finding shall be based upon annually/$4,061.23 monthly ($2,561.23 [the lesser of the two maintenance amounts resulting from
consideration of any one or more of the following factors, and adjusts the guideline amount of the two calculations] plus $1,500 [the additional discretionary award that this Court finds just and
temporary maintenance accordingly based upon such consideration:(a) the age and health of the appropriate] = $4,061.23).
parties;(b) the present or future earning capacity of the parties, including a history of limited Pendente lite maintenance payments shall be tax deductible to plaintiff and income to defendant as
participation in the workforce;(c) the need of one party to incur education or training expenses;(d) permissible under applicable tax code. See 26 U.S.C.A. § 71(b)(1)(B).
the termination of a child support award during the pendency ofthe 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;(e) the wasteful dissipation of marital property, including transfers or encumbrances Pendente Lite Child Support
made in contemplation of a matrimonial action without fair consideration;(f) the existence and
duration of a pre-marital joint household or a pre-divorce separate household;(g) acts by one party Effective January 31, 2010, "[t]he court shall multiply the combined parental income up to the
against another that have inhibited or continue to inhibit a party's earning capacity or ability to amount set forth in paragraph (b) of subdivision two of section one hundred eleven-I of the social
obtain meaningful employment. Such acts include but are not limited to acts of domestic violence services law by the appropriate child support percentage and such amount shall be prorated in the
as provided in section four hundred fifty-nine-a of the social services law;(h) the availability and same proportion as each parent's income is to the combined parental income." (DRL 240 1-b [c]
cost of medical insurance for the parties;(i) the care of children or stepchildren, disabled adult [2]). The Social Services law states that:

[t]he combined parental income amount to be reported in the child support standards chart and including, but not limited to:
utilized in calculating orders of child support in accordance with subparagraph two of paragraph
(c) of subdivision one of section four hundred thirteen of the family court act and subparagraph (A) non-income producing assets,(B) meals, lodging, memberships, automobiles or other
two of paragraph (c) of subdivision one-b of section two hundred forty of the domestic relations perquisites that are provided as part of compensation for employment to the extent that such
law shall be one hundred thirty thousand dollars; provided, however, beginning January thirty- perquisites constitute expenditures for personal use, or which expenditures directly or indirectly ...
first, two thousand twelve and every two years thereafter, the combined parental income amount confer personal economic benefits,(C) fringe benefits provided as part of compensation for
shall increase by the product of the average annual percentage changes in the consumer price index employment, and(D) money, goods, or services provided by relatives and friends
for all urban consumers (CPIU) as published by the United States department of labor bureau of Domestic Relations Law section 240 1-b (b)(5)(v) specifically permits "an amount imputed as
labor statistics for the two year period rounded to the nearest one thousand dollars. (Social income based upon the parent's former resources or income, if the court determines that a parent
Services Law § 111-I[2][b]). has reduced resources or income in order to reduce or avoid the parent's obligation for child
Domestic Relations Law section 240 1-b (b)(5)(iii) further defines gross income. "[T]o the extent support".
not already included in gross income in clauses (i) and (ii) of this subparagraph, the amount of
The Court next multiplies the combined parental income figure up to an initial statutory cap, which
income or compensation voluntarily deferred and income received, if any, from the following is currently combined parental income up to the sum of $143,000.00, by a designated percentage
sources: based on the number of children to be supported, and then allocates that amount between the
parents, applying each parent's respective portion of the total income to reach the amount of each
(A) workers' compensation,(B) disability benefits,(C) unemployment insurance benefits,(D) social
security benefits,(E) veteran's benefits,(F) pensions and retirement benefits,(G) fellowships and parent's support obligation (see Holterman v. Holterman, 3 NY3d at 11, 781 N.Y.S.2d 458, 814
stipends, and(H) annuity payments N.E.2d 765, supra, quoting DRL 240[1-b][b][3]; [c][2] ). In the final step, where combined
parental income exceeds the statutory cap, "the court shall determine the amount of child support
In determining a party's child support obligation, the Court need not rely upon a party's own for the amount of the combined parental income in excess of such dollar amount through
account of his or her finances, but may impute income based upon the parties' past income or consideration of the factors set forth in paragraph (f) of [Domestic Relations Law § 240(1-b)]
demonstrated earning potential or on the income the parent is capable of earning "by honest and/or the child [*22]support percentage" (id).
efforts" (Morille-Hinds v. Hinds, 87 AD3d 526, 928 N.Y.S.2d 727 [2 Dept., 2011]; see also
Genender v. Genender, 40 AD3d 994, 836 N.Y.S.2d 291 [2 Dept., 2007]; Westenberger v. The "paragraph (f)" factors include the financial resources of the parents and child, the health of
Westenberger, 23 AD3d 571 [2 Dept., 2005]; Rocanello v. Rocanello, 254 AD2d 269, 678 N.Y.S.2d the child and any special needs, the standard of living the child would have had if the marriage had
385 [2 Dept., 1998]). This is particularly true where the record supports a finding that a parties' not ended, tax consequences, non-monetary contributions of the parents toward the child, the
reported income on a tax return is suspect (see Ivani v. Ivani, 303 AD2d 639, 757 N.Y.S.2d 89 [2 educational needs of the parents, the disparity in the parents' incomes, the needs of other nonparty
Dept., 2003]; see also Maharaj-Ellis v. Laroche, 54 AD3d 677, 863 N.Y.S.2d 258 [2 Dept., 2008]; children receiving support from one of the parents, extraordinary expenses incurred in exercising
Matter of Graves v. Smith, 284 AD2d 332, 725 N.Y.S.2d 367 [2 Dept.,2001]). Further, it is well- visitation and any other factors the court determines are relevant.
established that the Court can award child support based on the needs of the child where the court Finally, the Court is required to articulate its reasons for awarding child support in addition to
finds that a payor spouse's representations regarding income are not credible (see Domestic basic child support above the statutory cap (see Wallach v. Wallach, 37 AD3d 707, 831 N.Y.S.2d
Relations Law § 240[1-b][k]; see also Lew v. Lew, 82 AD3d 1171, 920 N.Y.S.2d 230 [2 Dept., 2011]; 210 [2 Dept., 2007], quoting Matter of Cassano v. Cassano, 85 NY2d 649, 654-655, 628 N.Y.S.2d
Evans v. Evans, 57 AD3d 718, 870 N.Y.S.2d 394 [2 Dept., 2008]).
10, 651 N.E.2d 878, supra; see also Clerkin v. Clerkin, 304 AD2d 784, 759 N.Y.S.2d 500 [2 Dept.,
Domestic Relations Law 240 1-b (b)(5)(iv) states that "... at the discretion of the court, the court 2003]; Wagner v. Dunetz, 295 AD2d 501, 744 N.Y.S.2d 344 [2 Dept., 2002]).
may attribute or impute income from, such other resources as may be available to the parent,

Plaintiff argues that defendant should not be awarded pendente lite child support because the the plaintiff's income for the purposes of child support is $286,461 ($305,922 [2015 income] less
parties have agreed on a temporary 50/50 shared parenting access for the children and, his counsel $54,734.76 [maintenance] = $251,187.24) and defendant's income is $74,195.76 ($19,461 [2015
argues, "the children will end up living primarily with the plaintiff...." Plaintiff's counsel argues that income] plus $54,734.76 [maintenance] = $74,195.76).
a pendente lite award of child support would "only encourage the defendant to take an entrenched
position...." There is no Court determination at this time supporting plaintiff's counsel's assertion Accordingly, the plaintiff's child support obligation up to the $143,000 cap would be as follows:
that the children will "end up living primarily with the plaintiff." Nor does the Court adopt combined income up to and including the $143,000.00 cap = $143,000.00 x .25 [2 children] =
plaintiff's position that shared parenting access negates his financial obligation to provide basic $35,750 basic child support annually. Plaintiff's pro rata = 79.04% or $28,257.30 annually
child support for the children where, as is the case here by his own assertion, he has been the ($2,354.77 monthly) and defendant's pro rata = 20.96% or $7,492.70 annually ($624.39 monthly).
primary wage-earner for the family for years. Where combined parental income exceeds $143,000.00, as in the case at bar, the statue provides
In effect, plaintiff proposes a version of the proportional offset formula which the Court of Appeals that "the court shall determine that amount of child support for the amount of the combined
"explicitly" rejected in Bast v. Rossoff (91 NY2d 723, 732, 675 NYS2d 19 [1998]) nearly two decades parental income in excess of such dollar amount through consideration of the factors set forth in
ago. In Bast, the Court of Appeals directly addressed the issue of how child support should be paragraph (f) of this subdivision and/or the child support percentage" (Matter of Cassano v.
calculated when parents have "shared custody" of their child and noted that the cost of support Cassano, 85 NY2d 649, 653, 628 NYS2d 10 [1995] (quoting Family Ct Act 413 [1] [c] [3]). "The
children in shared custody arrangements may be even higher than in a sole custody arrangement court must articulate its reason or reasons for that determination, which should reflect a careful
because shared custody can increase the total cost of supporting a child by necessitating consideration of the stated basis for its exercise of discretion, the parties' circumstances, and its
duplication of certain household costs in each parent's home (91 NY2d at 730). The Court of reasoning why there should or should not be a departure from the prescribed percentage"
Appeals further noted that calculating a parent's basic child support obligation based upon each (Gillman, 139 AD3d at 669). [*24]"In addition to providing a record articulation for deviating or
parent's respective ratio of parenting time could result in the "undesirable potential of 'encouraging not deviating from the statutory formula, a court must relate that record articulation to the
statutory factors" (Matter of Pittman v. Williams, 127 AD3d 755, 756, 7 N.Y.S.3d 227 [2d Dept.,
a parent to keep a stop watch on visitation' in order to increase his or her shared custody
percentage..." (id. at 732).The Court of Appeals specified that "[w]e can only conclude that the 2015]; see Bast v. Rossoff, 91 NY2d 723, 675 N.Y.S.2d 19, 697 N.E.2d 1009 [1998].
Legislature saw fit not to create an exception to the CSSA for shared custody arrangements, nor "[T]he court may disregard the formula if 'unjust or inappropriate' but in that event, must give its
will we" (id. at 729) and found that in shared custody cases where the statutory formula would reasons in a formal written order, which cannot be waived by either party (Family Ct Act § 413 [1]
yield an unjust or inappropriate award the trial court "can resort to the 'paragraph (f)' factors and [g])" Cassano, 85 NY2d at 654. "Whenever the basic child support obligation derived by application
order payment of an amount that is just and appropriate" [*23](id.). This Court finds that under of the formula would be 'unjust or inappropriate, the court must consider the 'paragraph (f)'
the facts and circumstances presented in this case that deviating from the statutory CSSA formula, factor," including, "the financial resources of the parents and child, the health of the child and any
as requested by plaintiff, is not appropriate because doing so would place the economic burden of special needs, the standard of living the child would have had if the marriage had not ended, tax
the parties' separation on the parties' children when they are in the defendant's care (see generally consequences, non-monetary contributions of the parents toward the child, the educational needs
id. at 731).[FN37] of the parents, the disparity in the parents' incomes, the needs of other nonparty children receiving
On October 26, 2015, the Child Support Standards Act (DRL §240(1-b) (5)(iii)) was amended, support from one of the parents, extraordinary expenses incurred in exercising visitation and any
effective January 26, 2016, to provide that in a calculation of child support in Family and Supreme other factors the court determines are relevant." id. at 649.
Court, maintenance awards were to be considered income to the payee spouse for the calculation. The Court of Appeals has held that when "there was sufficient record indication that no
[FN38] extraordinary circumstances were present," application of statutory child support percentage of
Adjusting the plaintiff's income to take into account this Court's pendente lite maintenance award, combined parental income exceeding the statutory cap was justified and not an abuse of discretion
(Cassano, 85 NY2d at 655). The Appellate Division, Second Department has held that the

requirements of Cassano were satisfied when the Court set forth in detail that "based upon the $49,400 annually ($4,116.66 monthly) and defendant's pro rata share = 20.96% or $13,100
standard of living the children would have enjoyed if the parties remained together" the formula annually ($1,091.66 monthly). Commencing on the 15th day of April 2017 and continuing on the
set forth in the Child Support Standards Act was to apply to parental income in excess of the 15th day of each month thereafter plaintiff shall pay basic child support to defendant in the sum of
statutory cap (Kennedy v. Kennedy, 62 AD3d 755, 757 880 N.Y.S.2d 97 [2 Dept., 2009]). $4,116.66 monthly until final resolution or further Court order.
Here, the Court finds that it is appropriate to award pendente lite basic child support in excess of All unreimbursed medical, dental, optical, theraputic and prescription drug expenses incurred for
the $143,000.00 cap, under Cassano, based upon the financial resources of the custodial and non- the parties' children, including all deductibles and co-payments shall be apportioned at the rate of
custodial parent, the standard of living the children would have enjoyed had the marriage not been 79.04% to be paid by the plaintiff and 20.96% to be paid by the defendant subject to reallocation at
dissolved, the tax consequences of the parties, the non-monetary contributions that the parents the time of trial. The parties shall be financially responsible for their pro rata share of the children's
will make toward the care and well-being of the children and the determination that the gross private school tuition, school lunches, school bus transportation, summer camp, tutoring, and all
income of the defendant is vastly less than that of the plaintiff. reasonable after-school and extracurricular activities in keeping with the status quo or agreed to by
the parties in writing subject to reallocation at the time of trial.
If a child's lifestyle may be maintained by the support provided pendente lite, a similar award may
be made, and the "cap" adjusted to meet that level of support (see Lago v. Adrion, 93 AD3d 697, It is clear to the Court that during the marriage the children enjoyed an affluent standard of living.
699, 940 N.Y.S.2d 287[2d Dept., 2012]). Based on the clear standard of living and lifestyle that The children attend private schools and are extensively involved in competitive wrestling which
both parties reveal by the expenses they incur and established during the marriage, as reflected in included extensive travel several times a week to private coaching both in Long Island and New
both parties' submissions and affidavits of net worth, earnings, and assets of the parties, the Court Jersey. It in undisputed that the children enjoyed numerous vacations and such recreational
uses its discretion to [*25]utilize a combined income cap above the statutory limit of $143,000 to activities as fishing trips and access to a yacht.
that of $200,000.[FN39]
Plaintiff's suggestion that defendant should provide for the children based solely on her reported
In reaching this conclusion, the Court has considered the expenses reported in their supporting 2015 income of less than $20,000 suggests a litigation tactic designed by [*26]plaintiff exerting
affidavits and sworn statements of net worth. The plaintiff reports annual expenses totaling financial control over defendant's ability to provide the children with the pre-commencement
$375,396 on his affidavit of net worth dated April 5, 2016 and the defendant reports annual standard of living when she has parenting time with them. Here, the children are both in high
expenses totaling $392,508 on her affidavit of net worth dated April 5, 2016. The parties' reported school and the parents have stipulated to a temporary shared parenting time agreement by written
income of $325,383 on their joint 2015 federal tax return. The Court notes that the parties' stipulation dated November 21, 2016; however, they have not resolved the issues of custody and
reported expenses are often within $10.00 of one another with the primary discrepancy being the parenting time. The Court previously appointed an attorney for the children.[FN40]
plaintiff's objection to a total of $461.00 of the itemized household expenses listed by defendant. At
this time, the expenses detailed by defendant as to household expenses do not appear Plaintiff proffered novel theories regarding child support. The Court will not permit either parent
unreasonable. In making this award the Court is also mindful of the parties' pro rata financial to use financial control as a method to attempt to influence the children's custodial arrangement
obligation for private school tuition for the parties' two (2) children. preferences. The parties are cautioned that the Court will not condone the use of custody and
parenting time to wrangle a financial advantage in the award of child support. As such, under the
In considering their self-reported expenses and their lifestyle the cap of $143,000.00 would not facts and circumstances presented here, this Court resoundingly rejects plaintiff's argument that
provide a sufficient basis to the support these children (see Peddycoart v. MacKay, 145 AD3d 1081, defendant should remove the parties' teenage sons from the separate bedrooms they have enjoyed
45 N.Y.S.3d 135 [2d Dept., 2016]). for many years and relocate the children to a shared bedroom. Certainly, many families during
divorce proceedings experience varying degrees — sometimes extreme — of financial strain and
The calculation is as follows: utilizing combined income above the statutory cap = $250,000.00 x must make difficult "belt tightening" decisions to make ends meet because of the lack of financial
.25[2 children] = $62,500 total basic child support annually. Plaintiff's pro rata share = 79.04% or assets available to them. Here, the parties enjoyed an extremely comfortable lifestyle during the

marriage, including as plaintiff asserts, access to a 33' recreational fishing vessel. Even if the Court current income in the sum of $19,461 annually (no FICA, Social Security and/or Medicare are
credits plaintiff's assertion that the fishing vessel is a "boat" and not a "yacht" the record is reduced because no proof of such payments were provided) and the pre-commencement standard
abundantly clear that given the financial facts in this case and the assets available to the parties, of living the children would have enjoyed had the marriage continued and finds that the needs of
the plaintiff's suggestion that it would be maintaining the "status quo" to require the defendant to the children require that the plaintiff pay the sum of $4,116.66 monthly as and for pendente lite
move the children out of their separate bedrooms into a shared bedroom during her parenting time child support. Commencing on the 1st day of May 2017, and continuing on the 1st day of each
with them is disingenuous at best. The Court rejects plaintiff's argument as it would place an month thereafter, the plaintiff shall pay the sum of $4,116.66 monthly to the defendant as and for
entirely unnecessary onus on defendant to displace the children from the living situation the pendente lite child support. Plaintiff's child support obligation from April 19, 2017 through April
parties established during the marriage. 30, 2017 is $1,624.10 ($135.34 day x 12 days = $1,624.10) and shall be due together with the basic
child support payment due on May 1, 2017.
Based on the facts presented here this Court shall award pendente lite child support based on the
pre-commencement standard of living the child would have enjoyed had the marriage continued
and the children's current needs. The parties' lifestyle during the marriage, together with plaintiff's
assertions that he was the sole financial support of the family, the parties' amassing of extensive Retroactivity The plaintiff's combined pendente lite maintenance and child support obligation is
marital assets including a marital residence, two (2) four-unit dwelling investment properties, a $2,044.47 weekly ($8,177.89 monthly; $98,134.68 annually). The retroactive award is calculated
yacht and multiple automobiles all without any indication from plaintiff that the monthly expenses from the date the defendant moved for pendente lite relief which was when she filed her order to
associated with the parties' lifestyle are being paid late or that the parties were, in effect "living on show cause seeking pendente lite relief on November 3, 2016 to date, which totals $47,022.86
debt" by producing evidence of any acquired debt are incongruous with his assertions that he ($2,044.47/week x 23 weeks = $47,022.86).[FN41] Retroactive sums due by reason of this award
should not be required to provide financial support for the parties' children when they are in the shall be paid as follows: 50% shall be paid within 30 days of service of notice of entry of this
defendant's care. The Court absolutely and categorically rejects plaintiff's argument that a decision and order and the remaining 50% shall be paid [*28]within 60 days of service of notice of
pendente lite award of child support will discourage defendant from [*27]settling this case. This entry of this decision. Plaintiff shall be entitled to a credit for any temporary maintenance or child
theory articulated by plaintiff is based upon a tactic long ago discredited by Courts in the State of support payments already made by check or other negotiable instrument, since November 3, 2016,
New York of attempting to "pressure" a non-monied spouse in a matrimonial action into the date of defendant's first application for pendente lite relief (see Domestic Relations Law § 236
settlement and is inapposite to the Child Support Standards Act and controlling case law. [B][6][a]); see also Mosso v. Mosso, 84 AD3d 757, 924 N.Y.S.2d 394 [2 Dept.,2011]). Plaintiff is
also entitled to a credit for direct payments made on defendant's behalf since November 3, 2016
Defendant raised pointed questions about the inclusiveness and accuracy of the monthly expenses (see Yunis v. Yunis, 94 NY2d 787, 699 NYS2d 702 [1999]).
listed by plaintiff. Defendant notes that the monthly cash "allowance" that plaintiff claims he
provides to her of $800 is not listed as part of plaintiff's monthly expenses. Additionally, defendant
Counsel Fees
notes that plaintiff does not itnclude any expenses for dining-out/in or associated with the parties'
vessel on his affidavit of net worth. It is certainly plausible that there would be costs associated An award of interim counsel fees is within the discretion of the Court (DeCabrera v. Cabrera-
with maintaining a vessel such as slip/docking fees, monthly maintenance/repairs, Rosete, 70 NY2d 879 [1987]). Pursuant to Domestic Relations Law section 237(a), which was
insurance/licensing fees and fuel costs none of which are included in plaintiff's affidavit of net amended as of October 12, 2010, the Court in an action for divorce:
worth. At oral argument plaintiff's counsel asserted that plaintiff "has a boat" but argued that it is
"not a yacht." Even not accounting for these "missing" expenses the Court notes that the annual
expenses listed by the parties is more than the parties' reported income.
. . . may direct the person or persons maintaining the action, to pay counsel fees and fees and
In determining this award of pendente lite child support, this Court considered the defendant's expenses of experts directly to the attorney of the other spouse to enable the other party to carry on

or defend the action or proceeding as, in the court's discretion, justice requires, having regard to generally warranted "where there is a significant disparity in the financial circumstances of the
the circumstances of the case and of the respective parties. There shall be rebuttable presumption parties" (Prichep, 52 AD3d at 65; see also DelDuca v DelDuca, 304 AD2d 610, 611 [2 Dept., 2003];
that counsel fees shall be awarded to the less monied spouse. In exercising the court's discretion, Celauro v Celauro, 257 AD2d 588, 589 [2 Dept., 1999]). "[U]nlike a final award of counsel fees, a
the court shall seek to assure that each party shall be adequately represented and that where fees detailed inquiry or evidentiary hearing is not required prior to the award of interim counsel fees"
and expenses are to be awarded, they shall be awarded on a timely basis, pendente lite, so as to (Isaacs v Isaacs, 71 AD3d 951, 951 [2 Dept., 2010]; see also Prichep, 52 AD3d at 65; Singer v Singer,
enable adequate representation from the commencement of the proceeding. 16 AD3d 666, 667 [2 Dept., 2005]; Flach v Flach, 114 AD2d 929, 929 [2 Dept., 1985]). Additionally,
it should be noted that the court in Prichep specifically provided that "[w]hen a party to a divorce
It has long been established that "[a]n award of an attorney's fee pursuant to Domestic Relations action requests an interim award of counsel fees, as opposed to a final award, no such detailed
Law § 237(a) is a matter within the sound discretion of the trial court, and the issue is controlled by inquiry is warranted" (52 AD3d 61, 65, 858 N.Y.S.2d 667 [2 Dept.,2008].
the equities and circumstances of each particular case" (Grant v Grant, 71 AD3d 634, 634-635, 895
NYS2d 827 [2d Dept 2010], quoting Gruppuso v Caridi, 66 AD3d 838, 839, 886 NYS2d 613 [2d "The court may also consider whether either party has engaged in conduct or taken positions
Dept 2009], quoting Morrissey v Morrissey, 259 AD2d 472, 473, 686 NYS2d 71 [2d Dept 1999]). resulting in a delay of the proceedings or unnecessary litigation (see Ciampa v. Ciampa, 47 AD3d at
"In determining whether to award such a fee, the court should 'review the financial circumstances 748, 850 N.Y.S.2d 190; Timpone v. Timpone, 28 AD3d at 646, 813 N.Y.S.2d 752; Morrissey v.
of both parties together with all the other circumstances of the case, which may include the relative Morrissey, 259 AD2d at 473, 686 N.Y.S.2d 71; Walker v. Walker, 255 AD2d 375, 376, 680 N.Y.S.2d
merit of the parties' positions'" (Gruppuso, 66 AD3d at 839, quoting DeCabrera v Cabrera-Rosete, 114)." (Prichep v. Prichep, 52 AD3d 61, supra).
70 NY2d 879, 881, 524 NYS2d 176 [1987]). "'An appropriate award of attorney's fees should take
into account the parties' ability to pay, the nature and extent of the services rendered, the In the case at bar, defendant requests that all of her counsel fees be paid by plaintiff. She requests
complexity of the issues involved, and the reasonableness of the fees under all of the that the Court order plaintiff to pay $66,747 for counsel fees and she seeks an award of
circumstances'" (DiBlasi v DiBlasi, 48 AD3d 403, 405, 852 NYS2d 195 [2d Dept 2008], lv denied "prospective" counsel fees in the sum of $25,000 "as a retainer against time charges and
disbursements."
10 NY3d 716, 862 NYS2d 468 [2008], quoting Grumet v Grumet, 37 AD3d 534, 536, 829 NYS2d
682 [2d Dept 2007] [citations omitted]). Plaintiff argues, in effect, that the Court should not award defendant any pendente lite counsel fees
It is also well-settled that "[a]n award of interim counsel fees is designed to create parity in divorce because, he alleges, she hired counsel whose hourly billing rate is double the hourly billing rate of
the counsel he retained. Plaintiff contends that if the Court awards defendant counsel fees that the
litigation by preventing a monied spouse from wearing down a nonmonied spouse on the basis of
sheer financial strength" (Rosenbaum v Rosenbaum, 55 AD3d 713, 714, 866 NYS2d 234 [2d Dept "playing field" will shift to defendant's favor even though he is the undisputed monied-spouse.
2008], citing O'Shea v O'Shea, 93 NY2d 187, [*29]193, 689 NYS2d 8 [1999]; Wald v Wald, 44 Plaintiff represents that he has paid his counsel $10,000 in counsel fees.[FN42] At oral argument
AD3d 848, 844 NYS2d 86 [2d Dept 2007]). "Such awards are 'designed to redress the economic on November 21, 2016 plaintiff, who is an attorney, asserted through counsel that he has done
disparity between the monied spouse and the non-monied spouse' and ensure that the matrimonial "zero" legal work on this [*30]matrimonial action. Plaintiff also argues that the Court should not
scales of justice are not unbalanced by the weight of the wealthier litigant's wallet'" (Kaplan v award defendant pendente lite counsel fees because defendant has made prior payment to her
Kaplan, 28 AD3d 523, 523, 812 NYS2d 360 [2d Dept 2006], quoting Frankel v Frankel, 2 NY3d counsel using funds from the home equity line of credit on the marital residence which, he argues,
601, 607, 781 NYS2d 59 [2004], quoting O'Shea, 93 NY2d at 190). he is paying and defendant does not dispute that this was the source of her prior counsel fee
payments in connection with this action.
Interim counsel fees are awarded to level the playing field and "'prevent the more affluent spouse
from wearing down or financially punishing the opposition by recalcitrance, or by prolonging the The billing records annexed to defendant's application for counsel fees show that defendant's
litigation'" (Gober v Gober, 282 AD2d 392, 393 [1 Dept., 2001], quoting O'Shea v O'Shea, 93 NY2d counsel has been paid a total of $16,144.81 as follows: $6,004.50 on July 5, 2016; $140,31 on
187,193 [1999]; see also Prichep v Prichep, 52 AD3d 61, 65 [2 Dept., 2008]). Thus, interim fees are August 9, 2016; and $10,000 on October 14, 2016.[FN43]

Defendants's counsel affirms that as of November 2, 2016 defendant had paid $49,722 in counsel control the flow of this litigation by restricting defendant's choice of counsel to those who charge a
fees and that she anticipated defendant would incur another $17,025 "in connection with this comparable billing rate to the counsel he selected for himself. The Court notes that defendant,
motion and Plaintiff's Cross-Motion..." ($49,722 + $17,025 = $66,747). Defendant's counsel did unlike plaintiff, is not an attorney by training and, as such, she may require more hours of legal
not provide any updated billing records in her subsequent affidavits filed in connection with services in navigating the legal process. Any prior counsel fee payments made by the parties from
motion sequence #1 or #2 nor did defendant's counsel provided up-to-date billing records at the funds drawn from the home equity line of credit can be reallocated as part of a final settlement or
time of oral argument on November 21, 2016 to show the counsel fees actually incurred by determination of the Court after trial.
defendant in connection with motion sequence #1 and/or #2 so the Court has no record before it to
ascertain whether the $17,025 in "anticipated" counsel fees was supported by the billing records. The payment in this award of pendente lite counsel fees of $65,000 shall be made directly from the
As such, the Court will, at this time, only consider the defendant's outstanding balance due and defendant to the plaintiff's counsel within thirty (30) days of service of notice of entry of this
owing in the sum of $49,722, which is supported by billing records annexed to her application, and decision and order. If the plaintiff fails to make the payment in compliance with this decision and
her request for $25,000 in prospective counsel fees. order the defendant's attorney may enter a judgment for the full amount due and owing, plus
statutory interest, with the Clerk of the Court upon ten (10) days written notice by certified and
The Court finds that under the facts and circumstances presented here, including the nature and regular mail to the defendant and without further application to this Court.
complexity of the issues raised, the parties' income and assets and liabilities, as sworn to in their
respective Affidavits of Net Worth, the retainer agreements, the qualifications of defendant's Motion sequence #1 is granted to the extent detailed herein.
counsel and the updated billing statements for legal services rendered in connection with this Motion sequence #2 is denied to the extent detailed herein.
litigation and the fact that plaintiff is clearly the monied spouse as contemplated by DRL §237(a)
that an award of pendente lite counsel fees in the sum of $65,000 is just and appropriate. The This shall constitute the decision and order of the Court.
Court specifically rejects plaintiff's antiquated theory that any counsel fee award to defendant
should be limited so that she has "skin in the game" despite the fact that plaintiff argues that he
paid nearly all of the parties' expenses during the marriage earning well over $200,000 annually
and defendant has, primarily, supported the family as a home-maker and earned less than ENTER
$20,000 in 2015 as a part-time real estate agent.
__________________________
This award of $65,000 to the defendant-wife for pendente lite attorney's fees is without prejudice
to future applications for additional counsel fees, as necessary at the time of trial or sooner, upon Hon. Jeffrey S. Sunshine
the requisite showing (see DRL § 237; Prichep v. Prichep, 52 AD3d 61, 858 N.Y.S.2d 667 [2nd
Dept.2008]; Kesten v. Kesten, 234 AD2d 427, 650 [*31]N.Y.S.2d 807 [2nd Dept.1996]; Dodson, 46 J.S.C. Footnotes
AD3d at 305; Jorgensen v Jorgensen, 86 AD2d 861, 861 [2 Dept.,1982]).
Footnote 1:This affidavit is also a reply to motion sequence #2.
The Court believes that, pursuant to the dictates of Prichep (supra.), to require a more detailed
inquiry would defeat the purpose of a pendente lite counsel fee award and serve as an obstacle to Footnote 2:This stipulation resolved paragraphs A, B and C of motion sequence #1 and paragraphs
the non-monied spouse obtaining and maintaining competent counsel. The Court does not adopt 1 and 4 of motion sequence #2.
plaintiff's novel theory that defendant should be precluded from an award of pendente lite counsel
fees on the basis that she retained counsel who charges a higher hourly billing rate than the counsel Footnote 3:The Court issued a written appointment order for the real estate dated November 29,
he retained: this argument is not consistent with the statute or with the case law. Plaintiff cannot 2016.

Footnote 18:Beauty aids, $50; books/magazines, $30; children's allowances, $200; gifts, $125;
Footnote 4:The Court issued a written appointment order for the business evaluation dated charitable contributions, $100; commutation, $100; pet expenses, $175; loan payments, $1,000;
December 1, 2016. unreimbursed business expenses, $1,000.
Footnote 5:Plaintiff's incoming counsel filed a notice of appearance dated February 3, 2017. Footnote 19:The Schedule C reflects $31,837 gross commissions less $12,376 in business expenses.
Footnote 6:Defendant's affidavit of net worth lists this as "Marital and investment" Footnote 20:For the marital residence: gas ($222); electricity ($360); water ($85); telephone
($224); ipad installment ($53): total $944. Utilities for two (2) investment properties: $918.
Footnote 7:Gas, $300; electricity, $150; telephone, $600; water, $400.
Footnote 21:Groceries, $408; school lunches, $199; lunches at work, $160; liquor/alcohol, $36;
Footnote 8:Groceries, $800; school lunches, $200; lunches at work, $200; liquor/alcohol, $500; dining out, $368; order in, $52.
home entertainment, $200.
Footnote 22:Wife, $247; children, $148.
Footnote 9:Husband, $300; children, $300.
Footnote 23:Laundry - home furnishings, $40; dry cleaning, $60.
Footnote 10:Laundry at home, $80; dry cleaning, $100.
Footnote 24:Homeowner's/tenant's, $629; automotive, $420; medical plan, $2,100; life, $66.
Footnote 11:Homeowner's/tenant's, $698; automotive, $420; medical plan, $2,100; disability, Includes tenant's insurance of $3,044 for two (2) investment properties.
$300; professional liability, $200.
Footnote 25:Medical, $172; dental, $150; pharmaceutical, $50; therapist, $680.
Footnote 12:Medical, $400; dental, $400; pharmaceutical, $100.
Footnote 26:Repairs, $120; housewares, $164; cleaning supplies, $39; appliances, $97; painting,
Footnote 13:Repairs, $250; housewares, $150; cleaning supplies, $80; sanitation/carting, $100; $166; sanitation/carting, $75; gardening, $50; snow removal, $75; extermination, $15; alarm
extermination, $30. service, $110. Includes repairs for two (2) investment properties of $420.
Footnote 14:Housekeeper. Footnote 27:Housekeeper.
Footnote 15:Gas/oil, $200; repairs, $200; car wash, $60; registration/license, $20; parking/tolls, Footnote 28:Gas/oil, $264; repairs, $67; car wash, $50; registration/license, $10; parking/tolls,
$900. $114; garage, $300.
Footnote 16:Primary/secondary, $2,500; school supplies/books, $100; tutoring, $450. Footnote 29:Primary/secondary, $2,158; school transportation (gas/tolls), $933; school
supplies/books, $67; tutoring, $800.
Footnote 17:Summer camp, $292; vacations, 4415; movies, $60; cable television, $250; team
sports, $700; health club, $100; sporting goods, $100; hobbies, $300. Footnote 30:Summer camp, $125; vacations, $250; movies, $30; theater/ballet, $98; video rentals,
$65; cable television, $195; team sports, $142; sports lessons, $160; health club, $60.

Footnote 39:The Court notes that the total combined parental income of $325,383 as reported by
Footnote 31:Personal grooming, $110; beauty aids, $112; books/magazines, $84; gifts, $76; the parties on their joint 2015 federal income tax return.
charitable contributions, $83; religious organization dues, $39; accountant, $66; computer related,
$309; postage, $15. Footnote 40:Order Appointed Attorney for the Children Private Pay dated October 26, 2016.
Footnote 32:Plaintiff does not address defendant's assertion that only $600 of the $800 in cash is Footnote 41:Defendant contends that her first request for child support and maintenance was in
provided for her personal use. her Notice of Appearance and Demand for Complaint dated April 26, 2016; however, while a final
order of support is retroactive to the date of commencement the case law is clear that an award of
Footnote 33:The 2015 Schedule C for defendant's real estate business annexed to the parties' joint retroactive pendente lite support is retroactive to the date of first application for pendente lite
2015 federal tax return lists income of $31,837 and expenses of $12,376 [$31,837 less $12,376 = relief (see Kim v. Schiller, 112 AD2d 671, 978 NYS2d 229 [2 Dept.,2013]).
$19,461].
Footnote 42:Plaintiff's affidavit dated November 10, 2016.
Footnote 34:At oral argument on November 21, 2016 plaintiff, through his former counsel,
asserted that he does not pay any personal expenses through his business. Footnote 43:Neither defendant nor her counsel identify the source of these payments but they also
do not dispute plaintiff's representation that the payments were drawn from the home equity line
Footnote 35:Plaintiff lists this as a 2007 Silverton Sports Bridge boat on his affidavit of net worth of credit on the marital residence.
dated April 5, 2016. Defendant list this as a "33-foot Silverton Yacht" on her affidavit of net worth
dated April 5, 2016. There appears to be a dispute between the parties if this is a "yacht", as
claimed by defendant, or a "boat", as claimed by plaintiff.
Footnote 36:Plaintiff stresses this fact in his affidavit dated November 10, 2016.
Footnote 37:Courts have also held that where parents' custodial time is truly equal the Court can
deem the parent with the higher income to be the non-custodial parent for child support purposes
(see generally Rubin v. Salla, 107 AD3d 60, 964 NYS2d 41 [1 Dept.,2013]; see also Baraby v.
Baraby, 250 AD2d 201, 681 NYS2d 826 [3 Dept.,1998]; Mitchell v. Mitchell, 134 AD3d 1213, 21
NYS3d 438 [3 Dept.,2015]).
Footnote 38:The amendments to the maintenance guidelines [DRL § 236(B)(5-1)] statute and to
Domestic Relations Law 240(1-b)(5)(iii) resolved the prior split in the New York State Appellate
Divisions regarding whether an award of temporary maintenance was included as income to the
recipient spouse for the purpose of calculating basic child support under the CSSA (see generally
Lee v. Lee, 18 AD3d 508, 795 N.Y.S.2d 283 [2 Dept.,2005]; Huber v. Huber, 229 AD2d 904, 645
NYS2d 211 [4 Dept.,1996]; Lenigan v. Lenigan, 159 Ad2d 108, 558 NYS2d 727 [3 Dept.,1990]).

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Al E.

Kamaras & Joseph, PLLC

By: Philip L. Kamaras

Attorneys for Plaintiff

Alter, Wolff & Foley LLP

Al E. v Joann E By: Jenifer J. Foley

Attorney for Defendant

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Defendant's 2015 Income and Affidavit of Net Worth

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Defendant'sPendente Lite Maintenance Argument

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Pendente Lite Maintenance

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Liquor$36 TOTAL$6,691Defendant lists the following expenses for the children:

Dining Out$368 Expense

Theater$98 Sports Lessons

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Footnote 14:Housekeeper. Footnote 27:Housekeeper.

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