G.S., Plaintiff, v. K.K., Defendant. (2022)

The following e-filed documents, listed by NYSCEF document number (Motion 003) 80, 81, 82, 83, 84, 85, 86, 87, 88, 89, 90, 91, 92, 93, 94, 95, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 114, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130 were read on this motion to/for ENFORCEMENT.

Upon the foregoing documents, it is

In this motion, the Plaintiff Wife moves to compel the Defendant Husband to cooperate with the private school application process for their daughter, pay 30% of all educational expenses for their two children, pay Plaintiff $2,550 plus statutory interest for unpaid child support for the month of January, reimburse plaintiff for $17,812 in add-on expenses, and pay $15,000 for counsel fees. Defendant Husband cross-moves for an award of Counsel fees in the amount of $15,000.

The branch of this motion relating to cooperation with the private school application process has been resolved as the Court previously directed both parties to participate and cooperate in the public school and private school application process for their daughter in an interim order dated January 18, 2022. While such participation shall not prejudice either parties’ position on school selection or educational decision making, this Court's order still stands.

The Court notes, however, that it necessitated this motion and the Court's January 18, 2022 interim order to ensure that Defendant cooperated with the school application process. While Defendant had previously consented to the parties’ daughter applying to private schools, he abruptly withdrew his consent after retaining new counsel.

Background

The parties were married on January 2, 2009 in New York. They separated in 2019 and the Wife filed an action for divorce on February 24, 2020. There are two children of the marriage, a son born on XX XX, 2012 and a daughter born on XX XX, 2017. The Wife resides at the former marital residence at an apartment located in the Upper East Side of Manhattan, while the Husband resides at an apartment located in the Upper West Side of Manhattan. The Wife is a Partner at [Redacted]. in their corporate and investment banking practice in New York. The Husband is a self-employed investor at [Redacted].

Child Support

As outlined in a decision by Judge Cooper dated August 4, 2021, this Court has previously ordered the Defendant to pay $2,550 directly to the plaintiff each month for child support, as well as 30% of all child support add-ons, including but not limited to educational expenses. Regarding the $2,550, the Wife claims she is owed in child support for the month of January 2022. The Husband explains his reasoning for the initial non-payment as having to do with a mistake pertaining to the automatic payment function on his banking account. The Court recognizes that the Husband took steps to correct the mistake and sent the Wife $2,550 for the month of January, as demonstrated in Exhibit L. Therefore, the Court has no reason to believe the amount has not been paid and declines to order that the Husband pay any additional statutory interest.

Add-On Expenses

In her affidavit, the Plaintiff explains that the parties’ son currently attends private school after having a negative experience at their zoned public school. Based on their son's experience, Plaintiff is concerned about their daughter's education and does not believe their zoned public school is appropriate for her. Significantly, when she raised this issue with Defendant he indicated that he supported her applying to private school as he did not want her to be “treated differently.” However, when he retained new counsel, he withdrew his consent for their daughter to apply to private school.

Regarding add-on expenses, Plaintiff explains that all of the claimed expenses are expenses that have been in place for the children for a significant time. For example, she explained that the full and part-time nannies they have employed had been in place for a year at the time the motion as filed. She also explains how the two child-care providers cover different hours throughout the day, transport the children to and from various activities, that one of the providers works part-time, and provided coverage when the children attended school remotely. Similarly, Plaintiff notes that the children had been engaged in various extracurricular activities for years, including ballet, swimming, tennis, and tutoring.

Defendant complains that he had no involvement in his son's application to private school. He also disagrees that their son's experience informs what their daughter's will be with their zoned public school. He also states that he does not have the ability to pay for his daughter's private school and his position is that she should attend public school.

Defendant also maintains that he is not required to pay for his children's extracurricular activities as they are not included in statutory add-on expenses. He contends that the August 4, 2021 order does not required him to pay anything beyond the statutory expenses. However, he agrees to pay a pro rata share of two activities per child. He also argues that he should not have to pay for childcare for all the hours the providers cover, but only while Plaintiff is working.

Contrary to the statements in the Husband's cross-motion, the August 4, 2021 order seems to have been based upon the knowledge and common understanding that the parties’ son was to continue to be engaged in chess, tennis, soccer, and coding lessons, while the parties’ daughter was to continue to be engaged in tennis, swimming, ballet, and tutoring sessions. It is this Court's opinion that the parties’ children should not be forced to disengage in the extracurricular activities which they are accustomed to participating in without clear evidence of a substantial change in either of the parties’ finances.

Moreover, while only the parties’ son was enrolled in a private education institution at the time of the August 4th order, this Court understands Judge Cooper's order to include all future educational expenses for the parties’ daughter as well. In light of the Wife's description of the past negative experience with their son's former public education where he struggled both academically and socially, along with the fact that the parties’ son appears to be thriving in his current private school, this Court deems the Husband's request to limit only the daughter's access to private school unfair. While it is presently up to the parties to decide where their daughter attends school in the Fall, the Husband is to continue paying 30% of all educational expenses associated with each child, as well as 30% of the extracurricular activities each child has been engaged in since the time of the August 4th order.

Regarding the child-care expenses associated with the full-time live-in nanny and the part-time educated nanny who has worked with the parties and their children for over a year, it is clear to the Court that the August 4th order includes these costs within Judge Cooper's analysis and decision. In fact, the same exact child-care arrangement was in place at the time the August 4th decision was ordered, which explicitly directs the Husband to pay 30% of these child-care costs. The Husband's dissatisfaction with the child-care arrangement, along with his contention that the services provided by the nannies do not constitute child-care, is unavailing. Of course, the Wife and the Husband are free, and, in fact, encouraged, to engage in future discussions surrounding the child-care arrangements and may agree to change the arrangements to better suit each party's lifestyle. However, until a modified agreement is reached, the August 4th order remains in place and the Husband must continue to pay 30% of the existing child-care arrangements.

Counsel Fees

In matrimonial actions, the Court has discretion to direct one party to pay counsel fees for the opposing party (Domestic Relations Law [“DRL”] § 237). DRL § 237[c] provides for a mandatory award of counsel fees “for failure to obey any lawful order compelling payment.” Further, DRL 238 provides for an award of counsel fees incurred in connection with an enforcement proceeding.

While the issue of mandatory child support costs owed by the Husband for the month of January is now a non-issue, the mandatory $17,812 in add-on expenses, namely for child-care services and extracurricular activities, appears to remain unpaid by the Husband. The Husband cannot simply choose to refuse to pay for those child-care services and extracurricular activities which were known to this Court at the time of the August 4th order.

While the Court does take into consideration the Husband's position that the child-care arrangements should be modified to reflect his ability to care for the children without the help of a hired nanny, until an agreement between the Husband and Wife is made on this matter, the mandatory add-on expenses for child-care remain the same. The Court finds no merit in the Husband's argument that the daily tasks of the nannies do not reflect statutory child-care costs.

Similarly, the Court rejects the notion that he should be able to pick and choose which extracurricular activities to which he is required to contribute. Further, it seems to the Court that the Husband has violated the interim order of January 18 by refusing to cooperate with the private school application process for his daughter. The Court takes into consideration the Husband's reasoning for not wanting his daughter to attend a private institution of education, which will significantly increase the educational costs associated with the child. However, while the parties have joint legal decision making for their two children regarding education, the Husband may not sabotage the private school application process in an attempt to lessen the amount of add-on expenses he is so mandated to contribute.

Thus, having considered the difference in the parties’ incomes, along with the Defendant's obstructive behavior relating to school application and his failure to pay his share of add-on expenses, the Husband is directed to pay $5,000 as and for the Wife's counsel fees incurred on this motion. There is no basis to award Defendant counsel fees or to conclude that Plaintiff's motion was frivolous.

Accordingly, it is hereby

ORDERED that the motion is granted in part and the cross-motion is denied; and it is further

ORDERED that the Plaintiff's request for a money judgment for basic child support is denied; and it is further

ORDERED that on or before August 10, 2022 the Defendant shall pay $17,812 to Plaintiff as and for add-on expense arrears. In the event Defendant fails to timely pay the add-on arrears, Plaintiff is entitled to entry of a money judgment without further application to the Court; and it is further

ORDERED that the Wife shall pay 70% and the Husband 30% of both of their children's educational, medical, extracurricular, and child-care expenses in accordance with the August 4, 2021 order; and it is further

ORDERED that the Husband shall cooperate with the private school application process in accordance with the January 18, 2022 interim order; and it is further

ORDERED that the Wife's motion for counsel fees is granted to the extent that the Husband is directed to pay $5,000 in counsel fees directly to the Wife's counsel on or before August 10, 2022; and it is further

ORDERED that any relief not granted is denied.

This constitutes the decision and order of the Court.

Ariel D. Chesler, J.