J.B., Plaintiff, v. S.B., Defendant. (2026)

Defendant, by Order to Show Cause dated October 1, 2025, (Mot. Seq. 002), seeks an order from this Court:

a. Appointing Defendant as Receiver of the parties' marital residence located at 6 XXX Place, Commack, New York 11725, with full authority to enter into a listing agreement and Contract of Sale to sell said residence, and to periodically reduce the listing price as deemed appropriate based upon the market;

b. Directing Plaintiff to fully cooperate with the sale of the parties' marital residence;

c. Issuing a Warrant of Eviction directing the Plaintiff's removal from the marital residence, and imposing a penalty against him in the sum of $500 per day for each day he remains therein and refuses to cooperate with the sale of the marital residence; and

d. Awarding to the Defendant such other and further relief as this Court may deem just, fair and equitable, including the costs and legal fees associated with this application

Plaintiff, by Order to Show Cause dated March 25, 2026, (Mot. Seq. 003), seeks an Order from this Court:

a. Denying the Defendant, S.B.'s Order to Show Cause that was filed on September 30, 2025, in its entirety; and

b. Deeming the Stipulation entered into between the Defendant and Plaintiff for the sale of the Marital Residence located at 6 XXX Place, Commack, New York 11725, invalidated; and

c. Pursuant to the Maintenance Guidelines, directing that Defendant, S.B., pay interim maintenance to Plaintiff, J.B., in the sum of $1,724.60 per month, retroactive to the date of this application; and

d. Directing Defendant, S.B., to pay 100% of the carrying charges and related expenses for the Marital Residence, including but not limited to: the rent/mortgage payments, real estate taxes, homeowner's insurance, utilities, electricity, water, garbage removal, fuel, cell/telephone, repairs, gardening expenses, and any other reasonable charges for the preservation and operation of this property; and

e. Awarding interim counsel fees in the amount of $25,000.00 payable by Defendant, S.B., directly to Plaintiff's counsel, HEDAYATI LAW GROUP P.C., together with leave to seek such other and further counsel fees as may be warranted; within ten (10) days and if Defendant fails to pay counsel fees as ordered by this Court within the required time, then the Clerk of the Court of Suffolk County shall enter judgment against Defendant upon presentation of an Affidavit of Non-Compliance;

f. For such other and further relief as to this Court may deem necessary, just and/or proper.

Defendant, by Order to Show Cause dated April 7, 2026, (Mot. Seq. 004), seeks an Order of this Court:

a. Adjudicating J.B. to be in contempt of Court for willfully violating the Automatic Orders in this case;

b. Denying the relief sought by the Plaintiff in his Order to Show Cause dated March 25, 2026;

c. Awarding the Defendant pendente lite child support in the sum of $918.20 per month;

d. Directing that Plaintiff pay for 50% of the mortgage, taxes and insurance and 100% of the utilities on the marital residence located at 6 XXX Place, Commack, New York, pendente lite;

e. Directing Plaintiff to execute a Contract of Sale for the sale of the marital residence to M.S. and T.P. for the sum of $740,000.00;

f. Directing Plaintiff to pay for 50% of the costs of childcare expenses, pendente lite; and

g. Awarding to the Defendant such other and further relief as this Court may deem just, fair and equitable, including the costs and fees associated with this enforcement proceeding.

In this matrimonial action, the Court has before it multiple applications and cross-applications relating to the parties' marital residence, financial responsibilities, child-related expenses, and competing requests for pendente lite relief.

The Defendant, S.B., seeks various forms of relief relating primarily to: (1) the sale of the marital residence located at 6 XXX Place, Commack, New York 11725; (2) the Plaintiff's removal from the home; (3) appointment of a receiver to effectuate the sale; and (4) pendente lite financial relief including counsel fees. She asserts that the Plaintiff has willfully damaged the home, refused to cooperate with its sale, and ceased contributing financially to household expenses.

Defendant states that she vacated the marital home in July 2025 with the party's son, R., after alleged concerning behavior and substance abuse by Plaintiff. An Order of Protection was issued against the Plaintiff in favor of the Defendant and their son, and Defendant states that a neglect proceeding commenced against the Plaintiff because of his behavior and drug use. She reports that Plaintiff continues to reside alone in the marital residence, remains unemployed, and has allegedly caused significant damage to the property while refusing to cooperate with brokers regarding its sale. Defendant annexes photos which depict the condition of the home (Doc. No. 38) and asserts that Plaintiff's behavior threatens the value of what she describes as the parties' "single largest asset."

The Plaintiff, J.B., opposes Defendant's applications and seeks affirmative pendente lite relief, including: (1) invalidation of a prior stipulation regarding the sale of the marital residence; (2) maintenance in the amount of $1,724.60 per month; (3) an order requiring Defendant to pay 100% of the carrying charges on the marital residence; and (4) counsel fees.

Plaintiff denies Defendant's allegations of destruction of the home and asserts that several of the photos submitted by Defendant were taken out of context or misrepresent renovations he was performing. He also denies leaving drug paraphernalia throughout the house, claiming that Defendant planted the items or that certain items (such as insulin needles) were used for the family dog.

Plaintiff states that Defendant improperly characterizes his addiction disorder and argues that his past struggles should not be used to draw negative inferences. He contends that Defendant contributed to his relapse and that her allegations of destruction to the home are exaggerated or false.

This Court had put this matter down for a hearing on the Defendant's application seeking, inter alia, the appointment of a Receiver, at which time the Plaintiff appeared pro se. When questioned by this Court about the pictures annexed to the Defendant's application which reflect extensive damage to the home, including put not limited to: holes in the walls throughout the home, damaged doors, broken furniture, spray paint on the walls, a garage door that is severely damaged and spray painted with something referring to the police, glass shattered throughout and garbage strewn about, the Plaintiff did not deny his role in causing same, and his explanation was that he was making renovations. To be clear, the pictures of the home in no manner reflect renovations, but instead, exhibit destruction and damage which appear to have been intentionally caused by the Plaintiff.

The Plaintiff ultimately agreed to list the marital residence for sale, and a listing agreement was signed. At a subsequent conference, this Court was advised that the Plaintiff was not cooperating with the sale of the home, despite a buyer ready willing able to purchase the home. Plaintiff states he is objecting to the sale of the home because he claims the house was listed at $749,000.00 after he was advised that the home would be listed at $799,000.00. He further states that a buyer was found on the same day the house was listed, and "the entire transaction is extremely suspicious."

Sale of the Marital Residence:

It has long been held in this state since the ruling by the Court of Appeals in Kahn v. Kahn, 43 NY2d 203 (1977) that unless a court alters the legal relationship of husband and wife by granting a divorce, an annulment, a separation or by declaring a void marriage a nullity, it has no authority to order the sale of a marital home owned by the parties as tenants by the entirety.

However, since the ruling in Kahn, supra, there have been several decisions which steer away from the absolute notion that the Court lacks any authority to sell property owned by tenancy by the entirety without first dissolving the marriage.

In the first instance, Courts have recognized the right and perhaps obligation to order the sale of property pendente lite to avoid waste or a loss to the property. See FR v AR, 85 Misc 3d 1257(A), 231 N.Y.S.3d 808 (2025). With the enactment of the Equitable Distribution statute in 1980, the view of marriage changed to an economic partnership where property is to be distributed equitably, irrespective of how title is held. As such, the marital property that exists at the commencement of an action is presumably going to be distributed in some fashion to both parties, and its value at the time an action is commenced should be preserved for distribution to each party in accordance with the Equitable Distribution laws.

Moreover, the Automatic Orders enacted under DRL § 236B(2)(b)(1) are specifically designed to keep the marital estate intact and free from dissipation during the pendency of an action for divorce. The Orders explicitly reference the Courts inherent authority to sell marital property pendente lite, with DRL § 236B(2)(b)(1) providing as follows:

Neither party shall sell, transfer, encumber, conceal, assign, remove or in any way dispose of, without the consent of the other party in writing, or by order of the court, any property (including, but not limited to, real property, cash accounts, stocks, mutual funds, bank accounts cars and boats) individually or jointly held by the parties, except in the usual course of business, for customary and usual household expenses or for reasonable attorney's fees in connection with this action. (Emphasis added).

Where, as here, the property is being damaged and its value arguably diminished, the sale of the property is necessary to protect each party's interest in the asset and its value. While the Plaintiff argues that he will be "homeless" if the house is sold, pendente lite, the Plaintiff will be in the same position at the conclusion of the divorce action, when there cannot be any opposition to the Court's authority to order its sale. Plaintiff has failed to provide this Court with a viable basis why the sale of the home should not be effectuated sooner rather than later, especially considering the damage to the home and his stated financial and physical inability to maintain the property. Instead, his argument is that a sale is " . . . forcing me to give up my rights to remain in our home during the pendency of this case."

While Plaintiff speaks about his "rights" to reside in the home until the conclusion of the divorce action, he fails to mention or recognize the competing rights of the Defendant to her share of the asset. It is undisputed that the Plaintiff has been represented by three different attorneys in between periods of representing himself, inevitably causing delay to a settlement or disposition. Should the Defendant be forced to wait for years to obtain her share of equity from the marital residence while the Plaintiff resides exclusively in the home and further damages the property, placing its value in further danger of depletion? Does the Plaintiff's "right" to reside in the home during the pendency of the action transcend the Defendant's rights to obtain the highest possible value for the home? Does the Plaintiff's position even make sense when the end result will ultimately be that the house is sold?

Caselaw and the Automatic Orders share a common thread of "keeping the status quo" during the pendency of a divorce action, whereby property should not be sold, the expenses should be paid, and assets should not be dissipated. Essentially, the common practice of the parties while happily married should remain throughout the pendency of the action. However, the one size fits all premise of maintaining the status quo is not always practicable or the best method for attaining equitable results. The facts of a particular matter must be examined. In the instant matter, the "status quo" of an intact family residing together no longer exists. The Defendant and the party's son moved out of the marital residence, there is an Order of Protection issued in favor of the Defendant against the Plaintiff, a Neglect proceeding has been filed against the Plaintiff, and the house is in significant disrepair, damaged at the hands of the Plaintiff. These significant changes dictate that a myopic view of the law and keeping the status quo would result, in this case, in merely keeping the Plaintiff in the marital residence, inviting further damage, additional loss, and delay in bringing the case to a resolution.

Moreover, the Plaintiff's "right" to reside within the marital residence is not absolute, as this Court has the authority under DRL § 234 to grant either party exclusive use and occupancy of the marital residence, and can exclude a party from a home if necessary.

While it is true that in an action for divorce the court cannot distribute property by pendente lite order and prior to a final judgment of divorce; See Stewart v. Stewart, 118 AD2d 455, [1st Dept.1986], it can and has been argued that the sale of a residence, pendente lite, is not a distribution of the property, as any order providing for the sale would require the net proceeds to remain in escrow pending written agreement of the parties or order of this Court. Therefore, conversion of the asset from a structure (marital residence) to liquid cash upon its sale does not provide for the equitable distribution of the asset, but merely the change of the asset from non-liquid to liquid, to be later equitably distributed. See Nederlander v Nederlander, 102 AD3d 416, 958 N.Y.S.2d 45 (2013).

It has been further held that the sale of a residence, pendente lite is also proper where the parties agreed to same. See Frisna v Frisna, 178 AD2d 460, 577 N.Y.S.2d 131. Much like the facts of this matter, the Wife in Frisna, supra, acquiesced to the sale of the residence in open court, only to later object and appeal the Order providing for its sale. The Plaintiff herein also acquiesced to the sale of the marital residence and admits to such within his Affidavit. (Doc. No. 58). Plaintiff now, and contrary to his prior agreement, seemingly rescinds his agreement to sell the home and rejects any notion that the house be sold, instead requesting that the agreement for same be invalidated.

Lastly, the Plaintiff has filed for divorce alleging grounds of DRL§ 170(7), an irretrievable breakdown in the marriage. The Defendant filed an Answer and Counterclaim for divorce under DRL § 170(7). The statute providing for what is commonly known as a "no fault" divorce under DRL§ 170(7) states:

The relationship between husband and wife has broken down irretrievably for a period of at least six months, provided that one party has so stated under oath. No judgment of divorce shall be granted under this subdivision unless and until the economic issues of equitable distribution of marital property, the payment or waiver of spousal support, the payment of child support, the payment of counsel and experts' fees and expenses as well as the custody and visitation with the infant children of the marriage have been resolved by the parties, or determined by the court and incorporated into the judgment of divorce.

Here both parties have filed a sworn statement consistent with the requirements of DRL § 170 (7), alleging that the marriage is irretrievably broken, thereby making the divorce a certainty, along with the inevitable dissolution of the tenancy by the entirety.

Accordingly, and based upon the Plaintiff's agreement to list and sell the marital residence, the potential loss in value of the asset as a result of what this Court deems the clear damage being caused to the home exclusively by the Plaintiff, and the balancing of equities in this matter, the Defendant's application seeking the appointment of a Receiver to list and sell the marital residence is granted. A separate Order will be issued providing for the appointment of a Receiver who will be vested with authority to list and sell the residence. The net proceeds of sale shall be held in escrow by the Receiver. The fees of the Receiver shall be borne exclusively by the Plaintiff.

Plaintiff is directed to cooperate with the listing and sale of the residence. The Defendant's application seeking an Order that Plaintiff execute a contract of sale is granted. In the event the prospective purchasers remain willing to purchase the property, the Plaintiff is directed to execute a contract of sale to the prospective purchasers, M.S. and T.P., at a purchase price of $740,000.00. In the event the contract is still viable, and the Plaintiff fails to execute the contract of sale, the Receiver shall step in and execute same.

Based upon the within, the Plaintiff's application seeking an Order that the Stipulation entered by the parties for the sale of the marital residence be invalidated is denied.

Request for Warrant of Eviction:

Defendant requests that this Court issue a warrant of eviction, thereby removing the Plaintiff from the Marital Residence. She asserts that the Plaintiff will never cooperate and will indefinitely delay the sale of the marital residence until he completely destroys same, further depleting the property's value.

Based upon the submissions before the Court and the Court's knowledge of the history of this matter, this Court agrees that the Plaintiff's removal from the home is necessary to protect it from further damage and effectuate its sale. The Plaintiff has admitted to a severe drug addition which includes cocaine and Fentanyl, admits that he damaged the home despite attempting to characterize his conduct as "repairs", and admits that he does not want the home sold based upon his claimed inability to secure alternate housing. This Court is unwilling to stand by and allow an admitted drug abuser to continue to cause damage to what the Plaintiff himself has admitted is the party's most valuable asset.

Accordingly, the Defendant request for a Warrant of Eviction is granted, and the Defendant is directed to submit same to this Court for Judicial signature.

Contempt:

Defendant seeks an order finding and punishing the Plaintiff for contempt and asserts that Plaintiff has violated the automatic orders by withdrawing at least $70,000 from his 401(k) without her consent or court authorization.

Plaintiff essentially admits that he withdrew funds from his 401(k), however maintains that Defendant's cessation of mortgage and utility payments forced him to withdraw retirement funds to avoid foreclosure and termination of services, and that Defendant's unilateral actions violated the automatic orders.

It is well settled that a person is guilty of civil contempt when he or she violates a duty imposed upon them by a lawful mandate of the court, which neglect or violation has the effect of defeating, impairing, impeding, or prejudicing the right of another. (Judiciary Law § 753.

To find a party in civil contempt, it must be established that there was a clear and unequivocal mandate for which the party had knowledge, that the party violated the mandate, and that the party's failure to comply with same prejudiced the rights of the moving party. McCormick v Axelrod, 59 NY2d 574, 466 N.Y.S. 2d 279, 453 N.E. 2d. 508. Once the movant establishes a knowing failure to comply with a clear and unequivocal mandate, the burden shifts to the alleged contemptor to refute the movant's showing, or to offer evidence of a defense, such as an inability to comply with the order. Lombardi v. Lombardi, 229 AD3d. 537 (2d Dept. 2024).

The Second Department has ruled that the Automatic Orders constitute unequivocal mandates for purposes of holding a party in civil contempt. Spencer v. Spencer, 159 AD3d 174, 71 N.Y.S.3d 154 (2d Dept. 2018); 22 NYCRR § 202.16-a.

As stated above, for there to be an adjudication of contempt, several elements must be satisfied, which include the existence of a clear and unequivocal order or mandate which the party had knowledge, that the party violated the mandate, and that the party's failure to comply prejudiced the rights of the other party.

The Automatic Orders that go into effect upon the commencement and subsequent service of such Automatic Orders in all New York actions for divorce have been established by the Court to be an unequivocal mandate.( See Spencer v. Spencer, supra).

There is no doubt that the Plaintiff violated the Automatic Orders by removing funds from his 401(k) account. He admits such. The Plaintiff commenced the action and accordingly had knowledge of the Automatic Orders, which were subsequently served upon the Defendant.

Having satisfied that there is a lawful mandate which the Plaintiff had knowledge of and that he violated same, the last prong to be considered before a finding of contempt can be made is if the actions of the Plaintiff prejudiced or impeded the rights of the Defendant.In determining the issue of prejudice when dealing with a violation of the Automatic Orders, the Court has turned to the intent of the legislature in their enactment to be helpful. In so doing, looking at the Assembly's Memorandum in Support of Legislation, it is stated that the automatic orders are needed "to prevent both parties from dissipating assets, incurring unreasonable debts, or removing a party or the children from health or life insurance policies." Mem. in Support of 2009 NY Assembly Bill A2574, Bill Jacket, L. 2009, ch. 72; see also Introducer's Mem. in Support, 2009 NY Senate Bill S2970." Sykes v. Sykes, 35 Misc 3d 591.

The context of dissipating assets within a matrimonial action relates to a party's removal, secretion, or expenditure of marital funds in the furtherance of depriving the other party of their share of the asset or funds and ultimately preventing equitable distribution by the Court.

The asset at hand consists of retirement funds of the Plaintiff. Historically, deferred compensation funds such as those in a 401 (k) account are earmarked for retirement and in fact, with few exceptions, the funds are not distributed without penalty unless the parties reach the required age permitted by the Internal Revenue Code of fifty-nine and one half (59 ½). (See IRC§ 72). As a result, these funds are not expected to be available to parties until retirement.

Plaintiff has admitted to withdrawing funds and utilizing same to pay the mortgage for the marital residence. While there is no doubt that the Plaintiff's actions violated the automatic orders, this Court is unaware exactly how much was removed by the Plaintiff and how much remains in his 401(k) to ascertain if there remain funds within the account to render the Defendant whole and ensure she receives her fair share of the account.

Irrespective, this Court notes that there remains substantial equity in the marital residence in which the Defendant can be compensated for any deficiency in her marital share of the Plaintiff's 401(k). As such, and " . . . absent harm or the lack of a remedy, there is no basis in law for punishing a party . . . for civil contempt." Sykes v. Sykes, 35 Misc 3d 591.

Accordingly, this Court finds the Plaintiff violated the Automatic Orders, however, declines to find and punish the Plaintiff for civil contempt, as the Defendant can be made whole through any remaining funds in the account and/or the equity existing in the marital residence, thereby causing no prejudice to the Defendant.

However, and so there can be no mistake or confusion, this Court, sua sponte, orders that the Plaintiff is hereby enjoined, restrained, and prohibited from in any manner making withdrawals, loans, or in any manner taking a distribution from his 401(k) account or any other retirement or deferred compensation account. Defendant is directed to serve a copy of this Order upon the administrator of the Plaintiff's 401(k) account to ensure compliance with this Court's Order.

Carrying Costs on the Marital Residence:

Plaintiff requests that the Defendant be ordered to pay 100% of the carrying charges and related expenses for the Marital Residence, including but not limited to mortgage payments, real estate taxes, homeowner's insurance, utilities, electricity, water, garbage removal, fuel, cell/telephone, repairs, gardening expenses, and any other reasonable charges for the preservation and operation of the Marital Residence.

Defendant requests that the Plaintiff be ordered to pay 50% of the mortgage, taxes and insurance and 100% of the utilities on the marital residence.

It is generally the responsibility of both parties to maintain the marital property and keep it in good repair during the pendency of a matrimonial action (see Brinkmann v. Brinkmann, 152 AD3d 637, 58 N.Y.S.3d 559; Goldman v. Goldman, 131 AD3d 1107, 17 N.Y.S.3d 166; Hymowitz v. Hymowitz, 119 AD3d 736, 991 N.Y.S.2d 57). It is well settled that the burden of repaying marital debt, such as a mortgage, should be equally shared by the parties and any such liability should be distributed in accordance with general equitable distribution principles and factors (see Westreich v. Westreich, 169 AD3d 972, 94 N.Y.S.3d 150; Minervini v. Minervini, 152 AD3d 666, 58 N.Y.S.3d 568; Gillman v. Gillman, 139 AD3d 667, 31 N.Y.S.3d 164).

The expenses associated with the mortgage, taxes, and insurance for the marital residence are $3,081.00 per month, in which each party is to be responsible for 50%, or $1,540.50 per month.

Accordingly, the parties are to share equally with each paying 50% of the monthly mortgage, taxes, and insurance associated with the marital residence. The directive and responsibility to share equally in the mortgage, taxes, and insurance shall be retroactive to the date of the Plaintiff's application.

The Plaintiff's application seeking a contribution from the Defendant for utilities and other services and expenses associated with the residence is denied. Plaintiff resides in the home, and he shall be solely responsible for the expenses of utilities and services he incurs.

Maintenance:

Plaintiff requests temporary maintenance in the sum of $1,724.60 per month and the Defendant requests temporary child support in the sum of $918.20 per month. Plaintiff asserts that Defendant's 2024 W-2 reflects adequate income and that imputed income of $35,000 to him results in a maintenance calculation of $1,724.60 per month.

Defendant opposes Plaintiff's request and contends that Plaintiff is refusing to work and is unemployed by choice. She avers that the Plaintiff's income prior to being unemployed was $60,000.00 per annum, and requests that income of $60,000.00 be imputed to the Plaintiff.

In determining a support obligation for a spouse, DRL § 236(B)(5-a) provides that "except where the parties have entered into an agreement providing for maintenance pursuant to subdivision three of this part in any matrimonial action the court, upon application by a party, shall make its award for temporary maintenance pursuant to the provisions of this subdivision." Further, the statute provides that "the Court shall order the guideline amount of temporary maintenance up to the income cap in accordance with paragraph (c) of the subdivision, unless the Court finds that the guideline amount of temporary maintenance is unjust or inappropriate, which finding shall be based upon consideration of any one or more of the following factors, and adjusts the guideline amount of temporary maintenance accordingly based upon such consideration"

The statute provides a formula to be utilized in determining the guideline amount of maintenance, based upon the incomes of the parties. Here the Plaintiff is unemployed and earning zero, while the Defendant earned $110,487.00 in 2025.

However, it is well settled that a court has broad discretion to impute income when determining issues of support and is not bound by the parties' representations of their finances. (Pilkington v. Pilkington, 185 AD3d 844, 846, 127 N.Y.S.3d 523). "Where a party's account is not believable, the court may impute a true or potential income higher than alleged" (Wesche v. Wesche, 77 AD3d 921, 909 N.Y.S.2d 764).

"A court need not rely upon a party's own account of his [or her] finances, but may impute income based on the party's past income or demonstrated future potential earnings" Marino v. Marino, 183 AD3d 813, 817, 123 N.Y.S.3d 638 . As such, the court is not constrained to accept a party's account of their income and may impute income based upon that party's particular skill and experience. Anyanwu v Anyanwu, 216 AD3d 1128(2d. Dept. 2023).

The Plaintiff seemingly imputes income to himself of $35,000.00, representing a full-time minimum wage income, which he contends represents what he could "realistically earn" if he eventually becomes employed. However, the Plaintiff does not contradict the Defendant's claims that he previously earned $60,000.00. Further, while the Plaintiff claims he " . . . cannot work at this time" he provides no basis for his claim of an inability to work, nor does he demonstrate any efforts he has made to seek employment commensurate with his prior earnings.

The Plaintiff, in stating he can realistically earn $35,000.00 per annum if employed, clearly envisions full-time employment utilizing minimum wage. A full-time job is by and large the same number of hours irrespective of the wage paid, and there is no basis provided by the Plaintiff demonstrating that he is unable to work or that he will be unable to earn an income similar to his previous earnings.

Accordingly, for purposes of a support obligation, this Court is utilizing the Defendant's 2025 income of $110,487.00 and an imputed income of $60,000.00 to the Plaintiff.

The calculation of a temporary maintenance award to the Plaintiff utilizing an imputed income to the Plaintiff of $60,000.00 adjusted for FICA and the Defendant's most recent income of $110,487.00 adjusted for FICA, up to the income cap of $241,000.00 is as follows:

Child Support:

Defendant seeks an award of temporary child support and states that Plaintiff has not contributed in any way in the support of their son. She seeks imputation of $60,000 in income to Plaintiff, representing his past employment with GEICO, and requests child support based upon such imputed income.

With regard to child support, this Court has calculated the child support pursuant to the CSSA utilizing the incomes set forth herein, which results in a child support obligation of $892.19 per month. This Court, when rendering a determination as to a proper award of child support, pendente lite, in addition to considering the incomes of the parties, must consider the other awards made herein which provide support to the child, such as housing costs, fuel, electric, and the like. When considering applications for pendente lite child support the Court may, in their discretion, apply the CSSA standards and guidelines, but they are not required to do so" see George v. George, 192 AD2d 693, 597 N.Y.S.2d 129; see also Domestic Relations Law § 236[B][7]). Davydova v Davydova, 109 AD3d 955, 972 NYS 2d 293.

The court deems there to be no basis to deviate from utilizing the CSSA in the calculation of child support. The Plaintiff does not reside with the Defendant and the party's son, and as such, the Plaintiff is not contributing toward shelter costs for the child which are inherent in the basic child support obligation.

The Defendant's temporary maintenance obligation to the Plaintiff is $630.66 per month and the Plaintiff's temporary child support obligation is $892.19 per month. Accordingly, when "netting" these two awards, the result is a difference of $261.53 per month ($892.19 — $630.66= $261.53), which is due to the Defendant in child support.

Therefore, the Plaintiff application for temporary maintenance is granted, and the Plaintiff is awarded temporary maintenance in the sum of $630.66 per month. The Defendant's application for temporary child support is granted, and the Defendant is awarded $892.19 per month in child support. The awards for temporary maintenance and child support shall be retroactive to the date of each respective application, and any retroactive amounts are to be paid within thirty (30) days of the date of the within Order.

In this matter and in lieu of each party paying the amounts awarded herein, the court directs that the two support awards be netted, and the Plaintiff pay to the Defendant the sum of $261.53 per month in child support, the difference between the temporary maintenance award and the temporary child support award.

Child Care Expenses:

Defendant requests that the Plaintiff be ordered to pay 50% of childcare expenses incurred for the benefit of the party's son. As the party's son is 8 years old and therefore, undoubtedly requires childcare during periods of time the Defendant-Mother is working and unable to care for him.

Given the disparity in the incomes as utilized herein, the Plaintiff is directed to pay 40% of child care expenses incurred for the benefit of the party's son, R. B., for those periods of time the Defendant is engaged in employment or seeking secondary education leading to employment. Domestic Relations Law § 240[1—b][c][4],[6].

The award for childcare expenses shall be retroactive to the date of the Defendant's application.

Counsel Fees:

Both parties request that the other be held accountable for counsel fees and assert that the other is financially irresponsible and acting in bad faith. Plaintiff seeks an award of counsel fees of $25,000. Defendant also requests counsel fees, maintaining that she has attempted to avoid unnecessary legal costs, but that Plaintiff's conduct has made litigation unavoidable.

Plaintiff paid his prior attorney, Hedayati Law Group a $20,000.00 retainer on December 8, 2025. On April 22, 2026, only a few months after being retained, Plaintiff's counsel made application to be relieved and was subsequently relieved on the record. Plaintiff has annexed a billing statement reflecting a credit balance of $12,790.00, thereby expending $7,210.00 in legal fees in approximately 4 months.

Defendant paid her attorney a $7,500.00 retainer on March 26, 2025, over one (1) year ago. As of September 22, 2025, the Defendant's retainer had been depleted, and Defendant owed a balance to her attorney of $1,103.75.

Pursuant to Domestic Relations Law Sec 237 (a), a court in a divorce action may award counsel fees to a spouse "to enable that spouse to carry on or defend the action or proceeding, as in the court's discretion, justice requires, having regard to the circumstances of the case and the respective parties." Johnson v. Chapin, 12 NY3d 461 (2009). An award of attorney's fees pursuant to Domestic Relations Law Sec. 237(a) ensures that the non-monied spouse will be able to litigate the action and do so on equal footing with the monied spouse. (Vitale v. Vitale, 112 AD3d 614, 977 NYS2d 258 (2d Dept. 2013).

Unlike a final award of counsel fees, a detailed inquiry is not required. Prichep v Prichep, 52 AD3d 61, 858 NYS2d 667 (2d Dept. 2008). Moreover, a less-monied spouse should not be expected to exhaust all, or a large portion, of available finite resources available, particularly where the more affluent spouse is able to pay his or her own legal fees without any substantial lifestyle impact (see Prichep v. Prichep, supra).

At first blush, looking at the finances of the parties, the Defendant is the higher incomed spouse. While the income and assets of the parties are largely considered when determining an application seeking counsel fees, this Court can and should consider whether or not any party has engaged in conduct which has caused unnecessary litigation. See generally Gorman v. Gorman, 187 AD3d 636, 134 N.Y.S.3d 330 (1st Dept. 2020).

In reviewing the applications before the Court and the litigation history of this matter, this Court cannot ignore the Plaintiff's conduct in severely damaging the marital residence, his agreement to list and sell the property,(only after Defendant made an application for such relief), and his subsequent refusal to cooperate with the sale.

Moreover, while the Plaintiff resided in the marital residence and the Defendant paid all expenses of same for a period, the Plaintiff contributed no child support for the party's son. While failing to contribute to the support of his own child, leaving that burden entirely on the Defendant's shoulders, the Plaintiff sought financial relief for himself of temporary maintenance, seemingly more concerned with how he would get by financially than he is with the welfare of his child. Solely because of the Plaintiff's own conduct, the Defendant made an application seeking relief surrounding the preservation of the marital residence by the appointment of a Receiver to effectuate a sale.

Conversely, it appears to this Court that the applications made by the Defendant are in direct response to the conduct of the Plaintiff. While under most circumstances, the income of the party's would result in a modest counsel fee award to the Plaintiff, as he is the less incomed spouse, this Court is unwilling to award the Plaintiff counsel fees, as his actions have caused much of the litigation and expenses to date.

Accordingly, the Plaintiff's application for interim counsel fees is denied.

The Defendant's application for an award of interim counsel fees is also denied. While there can be no doubt that the Defendant has incurred increased fees because of the motion practice and litigation in response to the Plaintiff's conduct, the only billing statement Defendant annexed to her application was to Motion Sequence No. 2, with billing through August 25, 2025. (Doc. No. 40). This billing statement pre-dates her Order to Show Cause dated October 1, 2025. This Court is therefore unaware of the services rendered, time spent, and ultimate fees incurred by the Defendant in the preparation of her applications to this court, dated October 1, 2025, and April 7, 2026, respectively.

NOW, it is hereby

ORDERED, that the Defendant's application seeking the appointment of a Reciever to sell the Marital residence located at 6 XXX Place, Commack, New York is GRANTED, and a separate Order will be issued providing for the appointment of a Receiver who will be vested with authority to list and sell the residence; and it is further

ORDERED, that the net proceeds of sale of the Marital residence shall be held in escrow by the Receiver; and it is further

ORDERED, that the fees of the Receiver shall be borne exclusively by the Plaintiff; and it is further

ORDERED, the Defendant's application seeking an Order that Plaintiff execute a contract of sale is GRANTED, and the Plaintiff is directed to execute a contract of sale to the prospective purchasers, M.S. and T.P., if said purchasers are still interested in the purchase of the Marital Residence at a purchase price of $740,000.00; and it is further

ORDERED, that the Plaintiff's application seeking an Order that the Stipulation entered by the parties for the sale of the marital residence be invalidated is DENIED; and it is further

ORDERED; that the Defendant application for the issuance of a Warrant of Eviction, thereby removing the Plaintiff from the Marital Residence at 6 XXX Place, Commack, New York is GRANTED, and the Defendant is directed to submit same to this Court for Judicial signature; and it is further

ORDERED, that Plaintiff's application for an order directing the Defendant to pay100% of the mortgage and carrying charges associated with the marital residence located at 6 XXX Place, Commack, New York and the Defendant's application that the Plaintiff be ordered to pay 50% of the mortgage, taxes, and insurance associated with the marital residence located at 6 XXX Place, Commack, New York is GRANTED, to the extent that the parties are directed to share equally with each paying 50% of the monthly mortgage, taxes, and insurance associated with the marital residence; and it is further

ORDERED, that the directive and responsibility to share equally in the mortgage, taxes, and insurance shall be retroactive to the date of the Plaintiff's application; and it is further

ORDERED, that the Plaintiff's application seeking a contribution from the Defendant for utilities and other services and expenses associated with the residence is DENIED, and the Plaintiff shall be solely responsible for the expenses of utilities and services associated with the Marital Residence; and it is further

ORDERED, that the obligation to pay the utilities and other carrying costs as set forth herein shall be retroactive to the date of the Plaintiff's application; and it is further

ORDERED, that the Defendant's application to find and punish the Plaintiff as and for contempt of court related to his failure to abide by the Automatic Orders of this Court is DENIED; and it is further

ORDERED, that the Plaintiff is hereby enjoined and restrained from making withdrawals, loans, or in any manner taking a distribution from his 401(k) account or any other retirement or deferred compensation account; and it is further

ORDERED, that that the Plaintiff's application for an order directing the Defendant to pay temporary maintenance is GRANTED, to the extent that the Plaintiff is awarded temporary maintenance in the sum of $630.66 per month; and it is further

ORDERED, that the Defendant's application seeking an Order directing the Plaintiff to pay temporary child support is GRANTED, to the extent that the Defendant is awarded child support for the support of the party's son in the amount of $892.19 per month; and it is further

ORDERED, that it is directed that the two support awards (maintenance and child support) be netted, and the Plaintiff pays the Defendant the sum of $261.53 per month in child support, the difference between the temporary maintenance award and the temporary child support award; and it is further

ORDERED, that the awards of temporary maintenance and temporary child support shall be retroactive to the date of each party's respective application for same, and any retroactive amounts are to be paid within thirty (30) days of the date of the within Order; and it is further

ORDERED, that the Defendant's application that the Plaintiff contribute toward childcare costs is GRANTED, to the extent that the Plaintiff is directed to pay 40% of childcare expenses incurred for the benefit of the party's son for those periods of time the Defendant is engaged in employment or seeking secondary education leading to employment; and it is further

ORDERED, that the direction to contribute to childcare expenses shall be retroactive to the date of the Defendant's application; and it is further

ORDERED, that the Plaintiff's application for an award of counsel fees is DENIED; and it is further

ORDERED, that the Defendant's application for an award of counsel fees is DENIED; and it is further

ORDERED, that that all other requested relief is deemed DENIED.

The foregoing constitutes the Order of this Court.

Dated: June 26, 2026

Central Islip, New York

HON. ALFRED C. GRAF

J. S. C.

Alfred C. Graf, J.