STEINBERG v. STEINBERG (2021)

Order, Supreme Court, New York County (Michael L. Katz, J.), entered January 6, 2020, which denied defendant's motion for a pendente lite award of unallocated tax-free support and an interim counsel fee award, unanimously affirmed, without costs.

The motion court correctly determined that defendant failed to show exigent circumstances that would warrant disturbing the pendente lite award (see Torres v. Torres, 171 A.D.3d 613, 96 N.Y.S.3d 848 [1st Dept. 2019]).  Defendant made no showing that he is unable to meet his financial obligations.  As noted by the motion court, defendant has substantial liquid assets under his control and the proven ability to earn significant income.  Plaintiff already bears the family's expenses of more than $200,000 per month.  Moreover, contrary to defendant's contention, plaintiff's payment of those expenses has enabled the continuation of much of the marital standard of living without any attendant adverse economic effects upon the four children.  The record indicates that defendant continues to live, at no cost, in the marital residences during his parenting time under the parties' nesting custodial arrangement, has a separate Manhattan rental apartment fully paid for by plaintiff, has no obligations as to the children's major expenses, and is responsible only for his own discretionary expenses and incidental child-related expenses that arise during his parenting time.

The motion court's denial of defendant's motion for an unallocated support award, to the extent such an award would constitute interim spousal maintenance is supported by the parties' most recent 2017 federal tax return before the court, which reflects that defendant's income exceeded plaintiff's (see Domestic Relations Law § 236[B][5–1][1], [2]).  Defendant's arguments regarding the accuracy of plaintiff's reported income are unavailing, as he failed to show that he raised any concerns prior to the filing of the return.

Defendant's argument that it was inappropriate for the court to “require” him to “spend down his finite assets in furtherance of the support of his children, his own support, or his own professional fee expenses,” is without merit.  Defendant failed to demonstrate that his assets are indeed “finite.”  The record reflects defendant's ability to earn significant sums (the 2017 tax return shows that he earned more than $3.4 million that year), and suggests no reason that he will not be able to do so again (cf.  Charpie v. Charpie, 271 A.D.2d 169, 172–173, 710 N.Y.S.2d 363 [1st Dept. 2000] [wife with “finite” assets had relinquished her medical practice in Switzerland to move to the U.S. with her husband, and, after staying home to raise the parties' children, was working at a not-for-profit music school, earning $24,000 a year];  Azizo v. Azizo, 51 A.D.3d 438, 439, 859 N.Y.S.2d 113 [1st Dept. 2008] [wife had not attended college or worked outside of the home for most of the marriage]).  Defendant, who was 33 at the time of the commencement of this action, has an MBA from Stanford and proven experience in investment management.

Defendant failed to demonstrate that the court improvidently exercised its discretion in denying him interim counsel fees, given the assets available to him (see Kerzner v. Kerzner, 281 A.D.2d 215, 726 N.Y.S.2d 388 [1st Dept. 2001]).

We have considered defendant's remaining arguments and find them unavailing.