R.G., Plaintiff, v. S.W., Defendant. (2022)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 3, 4, 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 27, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 85, 97, 98, 99, 100, 101, 102, 103, 104, 105, 106, 107, 108, 109, 110, 111, 112, 113, 115, 116, 117, 118, 119, 120, 121, 122, 123, 124, 125, 126, 127, 128, 129, 130, 131, 132, 133, 134, 207 were read on this motion to/for INTERIM RELIEF

Upon the foregoing documents, it is

In this motion for pendente lite relief, Plaintiff seeks an award of child support in the amount of $13,678 per month, the payment of 100% of the children's add-on expenses, for Defendant to continue to maintain and pay health insurance for the Plaintiff and the children, and for Defendant to pay the monthly carrying costs of the Marital Residence; all of which she asks to be retroactive to the date of the application and paid from Defendant's post commencement income. All other aspects of Plaintiff's motion are withdrawn or are being handled by a Special Master.

Defendant cross-moves for use of marital monies from a Vanguard account for the costs of his rental house and living expenses and suspension of child support award when the parties resided in Arizona during the pandemic. He also seeks sanctions in the form of counsel fees, imputation of income to the Plaintiff for calculating child support and a combined parental income cap of $500,000, and thus suggests he pay $10,270.83 monthly in child support and only 85% of agreed upon add-ons.

Notably, while the parties have withdrawn or resolved many aspects of the motion and cross-motion and are working with a Special Master on discovery issues, they now ask this Court to determine the remaining branches of these motions filed in 2020.

Background

The parties met at the [Redacted University], where they received their undergraduate degrees, and were married on July 8, 2001. The divorce action was commenced on June 7, 2019. Plaintiff Wife and Defendant Husband are both 51 years old. There are three children (the “Children”) of the marriage: S., born XX XX, 2005; B., born XX XX, 2005; and R., born XX XX, 2009. On December 20, 2021, the parties entered into a custody stipulation in which they agreed to have joint legal custody of the Children and share physical custody in a rotating “5-2” access schedule. Separately, the Plaintiff was granted sole use and occupancy of the Marital Residence in the Upper West Side of Manhattan. Plaintiff received her master's degree from [Redacted University]. Plaintiff has been unemployed for the duration of the marriage, acting as primary caregiver for the Children. Defendant is the President and owner of a Real Estate Company.

Temporary Child Support

In awarding temporary child support, the Court can, but is not required to, consider the CSSA guidelines (see DRL 240 [1-b][c]; Rubin v. Salla, 78 AD3d 504, 505 [1st Dept 2010]). Pursuant to the CSSA, to calculate the presumptive award of child support, the Court must first determine the combined parental income. According to his affidavit, Defendant earned an adjusted gross income of $2,027,734 in 2019. Plaintiff does not earn income, but has received $20,469 from her parents monthly, thus the Defendant asks the court to enter annual income for Plaintiff in the amount of $350,794.29. However, these family payments have ceased.

Here, the Husband's income for child support purposes will be $2,027,734 and the Wife's income is $0. The combined parental income is $2,374,404 including their joint investment income. The presumptive amount of basic child support obtained by calculating the statutory percentage for 3 children (29%) of the combined parental income cap of $163,000 results in child support of $47,270 per year. The Defendant's pro rata share of that sum is $45,161.18 or $3,763.43 per month.

In determining a temporary child support award, the Court also considers the payor spouse's significant income, the Children's accustomed standard of living, the assets of the parties such as the marital residence, and the Plaintiff's inheritance. The Court also considers the “add on” costs. Notably, the Plaintiff's parents have historically been responsible for such, including private school tuition, educational consultants, tutoring, extracurriculars, and summer camp, but allegedly ended their support at inception of the divorce.

Upon consideration of the factors outlined above, including the marital standard of living, the Court determines it inappropriate to award the guideline support only up to the cap. However, because the parties will each have the child 50% of the time, and in consideration of the various circumstances, the Court declines to award child support based on all of the Defendant's income but instead will utilize an adjusted cap.

Plaintiff initially suggests an adjusted cap of $650,000, while Defendant proposed a cap of $500,000. In her reply papers, Plaintiff indicates she will accept a compromise cap of $575,000, which she calculates results in a child support obligation of $12,923.13 for Defendant. She also proposes that add-on expenses be split 95% to Defendant and 5% to Plaintiff.

Utilizing the $500,000 adjusted cap proposed by Defendant results in temporary support of $10,270.83. Defendant also proposes that add-on expenses be split 85% to Defendant and 15% to Plaintiff.

After consideration of the factors, and the guideline support amount using a $575,000 cap, the Court finds that an award of temporary child support in the sum of $12,500 per month, a slight deviation from the guideline amount using that adjusted cap, is just and appropriate. Such child support obligation must come from Defendant's post commencement income and is retroactive to February 26, 2020.

The basic child support obligation does not include the children's add-ons. While the court did not impute income to the Plaintiff for purposes of calculating child support, this Court in its discretion has decided to consider this family income in its consideration of add-ons, as it is the area for which Plaintiff's parents routinely paid. Plaintiff contends that her parents ceased their assistance, but the court is concerned that these payments will resume as soon as the divorce proceedings conclude, and that the cessation of payments is merely strategic. Notably, Plaintiff's stepfather was the CEO of [Redacted Company]. Taking this into account, the court has determined it just and appropriate that Defendant pay 85% of add-ons and Plaintiff 15%. The add-on expenses include private school tuition and fees, books, supplies, school transportation, tutoring, extracurricular and sports activity expenses, summer camp, summer activities expenses, and unreimbursed health expenses. Further, the Defendant shall maintain the health insurance coverage currently in place for the wife and children.

Regarding the payment of the monthly carrying costs of the marital residence, Plaintiff's counsel asks this Court in her reply affirmation, filed June 29, 2020, to extend the branch of the Court's March 20, 2020 Order on a pendente lite basis providing that the carrying costs of the Marital Residence be paid from marital savings and split 50/50, subject to reallocation at the time of trial or conclusion of this matter and otherwise without prejudice. Accordingly, the costs of the Marital Residence shall continue to be paid from marital assets.

Arizona and Sanctions

Defendant argues that child support should be suspended during the time Plaintiff and Defendant resided in Arizona because temporarily living in Arizona during the pandemic abided by the Plaintiff's wishes. This court does not find that argument compelling. Defendant is still obliged to contribute to the children's costs such as food, clothes, and other expenses of the lifestyle to which they are accustomed. The fact that Plaintiff lived rent-free in Arizona does not result in the termination of his child support obligations. Accordingly, this branch of the cross-motion is denied.

Similarly, the fact that Defendant followed Plaintiff and the children to Arizona and temporarily relocated there during a once-in-a-century pandemic does not warrant him using marital assets to pay for his living costs and rent in Arizona. Although Plaintiff was directed to permit Defendant to stay in the guesthouse on her parents’ property, there is no evidence that she actually controlled that property. Further, while the trip to Arizona was originally expected to be short in duration, Plaintiff could not have foreseen the path the pandemic would take, and she ultimately made a rational and understandable decision to remain in Arizona with the children. Accordingly, this branch of the cross-motion is denied, and to the extent marital funds were in fact used for these expenses they should be returned to the marital account, or, deemed to be an advance of Defendant's distributive award.

Defendant also seeks an award of counsel fees. He contends that Plaintiff unnecessarily filed the motion as an emergency one, although there was no true emergency. He claims this constitutes frivolous conduct pursuant to 22 NYCRR 130-1.1[a] and that he is entitled to an award of fees.

Plaintiff notes that the order to show cause was filed with permission of the Court after efforts were made to resolve the issues raised in the motion. This Court finds no basis to find that Plaintiff engaged in frivolous conduct warranting the imposition of sanctions. Therefore, this request is denied.

Accordingly, it is

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

ORDERED that Defendant's request as to the suspension of child support during the parties’ time spent in Arizona is denied; and it is further

ORDERED that Defendant's request to utilize marital funds to pay his living costs in Arizona is denied; and it is further

ORDERED that Defendant's request for sanctions is denied; and it is further

ORDERED that Defendant shall pay interim child support in the amount of $12,500 to Plaintiff monthly, retroactive to February 26, 2020; and it is further

ORDERED that Defendant shall pay 85% of the Children's add-on expenses and Plaintiff 15% of add-on expenses, retroactive to February 26, 2020; and it is further

ORDERED that Defendant shall continue to maintain and pay the health insurance coverage for the benefit of Plaintiff and Children; and it is further

ORDERED that on consent Defendant shall pay the carrying costs on the Marital Residence with marital savings; and it is further

ORDERED that neither Defendant nor Plaintiff shall withdraw money from joint marital accounts except as directed herein, in prior Court orders, or unless the parties agree in the form of a written, signed document.

This constitutes the Decision and Order of the Court.

Ariel D. Chesler, J.