C.R., Plaintiff, v. M.B., Defendant. (2022)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 5, 6, 7, 8, 9, 10, 11, 12, 15, 16, 17, 20 were read on this motion to/for MAINTENANCE (ALIMONY & SUPPORT).

Upon the foregoing documents, it is

In this action for divorce, the Plaintiff Wife moves for an award of temporary maintenance, an order directing Defendant to maintain health insurance for Plaintiff, exclusive use and occupancy of the marital residence, and an award of interim counsel fees.

Background

The parties were married in a civil ceremony on June 20, 2012, in New York, New York. The parties have no children together and separated in November 2021. Plaintiff has been unemployed since the beginning of the COVID-19 Pandemic and her unemployment insurance ended in September 2021. Defendant is a freelance lighting technician.

According to Defendant's statement of net worth, Defendant's expenses total $7,070.07 per month and his income is $89,591.00 per year. According to Plaintiff's statement of net worth, she claims her expenses total $4,037.00 per month and her income totals $0.00 per year. Plaintiff's tax return indicates that she had an income of $28,944 in 2021, received from her unemployment insurance. The Martial Residence rental is priced at $2,300 per month and is located at 525 West 49th Street Apt. 1D, New York, New York 10019. Defendant does not live in the marital residence but has been voluntarily paying half of the monthly rent to Plaintiff at a rate of $1,065.00 per month.

Temporary Maintenance

Temporary Maintenance is determined by following the provisions under New York Domestic Relations Law § 236(B)(5-a). DRL § 236(B)(5-a) states that the spouse with the higher income will be the Payor and the spouse with the lower income will be the Payee. To determine a presumptive award of temporary maintenance, the court must follow Domestic Relations Law § 236(B)(5-a). DRL § 236(B)(5-a) states that temporary maintenance is formulated by first determining the parties’ respective incomes using their latest tax returns. Next, two different calculations are used to come to a presumptive award. The calculation that results in the lower of the two amounts is chosen as the presumptive award for temporary maintenance.

Defendant's tax returns indicate he made $89,591.00 in 2021, with a net statutory income of $79,700.00. Plaintiff initially did not submit her 2021 tax return to the Court. She submitted a statement of net worth that indicated her income is $0.00 per year. Plaintiff later submitted her 2021 tax return after a request from the Court. Plaintiff's 2021 tax return indicated that she received $28,944.00 in income through unemployment insurance. Plaintiff is requesting $4,137.00 per month in temporary maintenance from Defendant.

Under the statutory guidelines in DRL § 236(B)(5-a), the amount of temporary maintenance awarded would be $1,354.40 per month. This amount is calculated using both of the parties’ 2021 tax return income amounts, including the $28,944 the Plaintiff received in unemployment insurance. Plaintiff claims this unemployment insurance income ended in September 2021 and that she has been unemployed since but is continuously seeking employment.

Plaintiff claims that this statutory amount is actually calculated to $1,993.00 per month and would not be sufficient to cover her expenses, including her rent of $2,130.00. This amount of $1,993.00 per month is the presumptive award under the statutory calculation when Plaintiff's income is deemed to be $0.00 per year. However, the statute, DRL § 236, requires the use of each party's prior tax return for this calculation and Plaintiff's tax return indicates that her income was $28,944.00.

The Court can use its discretion in determining the amount of the award and deviate from the calculations. Defendant is currently paying a voluntary maintenance to Plaintiff of $1,065.00 per month toward the rental payment of the marital residence where Plaintiff now solely resides. Defendant claims that Plaintiff has two rental properties in the United Kingdom which she does not claim as rental income on her taxes. Plaintiff did list two properties on her Statement of Net Worth under her debts but does not indicate in any documents that she receives rental income from these properties. Plaintiff claims an income of $0.00 per year but maintains the mortgages on two separate properties in the United Kingdom and half of her rent for the martial property.

There is possible information missing from the parties’ documents that will be necessary in determining any potential final award of maintenance. Further, Plaintiff has not provided any information about her education or prior job history. Defendant indicates that Plaintiff has worked throughout the entirety of their marriage. Plaintiff does not dispute that she has the capacity to work, but instead states that she is unable to find work. She lists only three (3) job interviews she has gone to, on the respective dates of November 2021, January 2022, and March 2022.

After considering the foregoing circumstances, the Court will calculate temporary maintenance using Plaintiff's income shown in her 2021 tax return. Using the statutory calculations, this means that the presumptive award of temporary alimony will be $1,354.40 per month.

DRL 236(B)(5-a)(h)(1) states that a presumptive award of temporary maintenance can be adjusted if it is deemed to be unjust and inappropriate, considering multiple factors. The parties have been married for 9 years; Plaintiff is 43 years old, and Defendant is 35 years old. Neither report having health issues. Plaintiff claims she has not been earning income since her unemployment insurance ended in September 2021. Plaintiff needs spousal support to help pay for her rent and so she can attempt to reenter the workforce. Plaintiff gives no information regarding her education level or her prior jobs. Defendant indicates that Plaintiff has worked throughout the entirety of their marriage. Plaintiff is capable of working and will need to continue to search for employment during these proceedings. Upon consideration of these factors, in particular the Plaintiff currently being unemployed, the Court in its discretion will award $1,500 per month in maintenance.

Health Insurance Policy

Plaintiff seeks an order requiring Defendant to maintain a comprehensive health insurance policy for Plaintiff. Defendant claims that he has insurance through the New York State Insurance Marketplace and does not receive insurance through his employment. Because of this, Defendant is unable to add Plaintiff onto his insurance plan. In these circumstances, Plaintiff should retain her own health insurance policy.

Interim Exclusive Use & Possession of the Marital Property

Plaintiff seeks an order stating that Plaintiff shall have Interim Exclusive Use and Possession of the Martial Property. Plaintiff is currently living in the marital rental property. Domestic Relations Law § 234 states that the Court will have discretion to determine the possession and occupancy of the parties’ residence. This determination can be made in an interim order as well as in a final judgment. The parties in this case have physically separated. Defendant has moved out of the marital rental home and has acquired his own rental apartment. Plaintiff continues to live in the marital rental property while Defendant is paying for half of the rent. The parties have come to an agreement that Plaintiff will live in the rental property and Defendant will move out and live elsewhere. Thus, Plaintiff should be granted Exclusive Use and Occupancy of the residence, in accordance with the current status quo and agreement of the parties.

Interim Counsel Fees

Plaintiff seeks an order directing Defendant to pay for Plaintiff's interim counsel fees. These counsel fees include a retainer of $3,500.00, which has been exhausted following the filing of this motion. Defendant is the monied spouse between the parties. According to Domestic Relations Law § 237, there is a rebuttable presumption that counsel fees will be awarded to the less-monied spouse. The court has discretion in determining this award, while assuring the parties will be adequately represented. In this case, Defendant is ordered to pay for the Plaintiff's interim counsel fees in the amount of $2,500.00, directly to Plaintiff's attorney.

Accordingly, it is hereby

ORDERED that commencing on August 1, 2022, and on the first day of each month thereafter, Defendant shall pay Plaintiff temporary monthly maintenance in the amount of $1,500. This award is also retroactive to the date of the application or May 15, 2022 and any arrears should be paid by August 31, 2022; and it is further

ORDERED that the Plaintiff's motion for exclusive use and occupancy of the marital residence is granted on consent; and it is further

ORDERED that Plaintiff's request regarding health insurance is denied; and it is further

ORDERED that the Plaintiff's motion for counsel fees is granted to the extent that Defendant is directed to pay $2,500.00 in interim counsel fees directly to Plaintiff's counsel on or before August 31, 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.