JTP v. SJ (2022)

The following e-filed documents, listed by NYSCEF document number (Motion 001) 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 were read on this motion and cross-motion to/for CUSTODY & VISITATION/ INTERIM SUPPORT.

In this action for divorce, the Defendant Wife moves for sole interim legal and physical custody of the parties’ child and appointment of an attorney for the child. Plaintiff Husband cross-moves for sole interim legal and physical custody of the parties’ child, exclusive use and occupancy of the marital residence, an award of temporary maintenance and child support, and an award of interim counsel fees.

The branches of the motions relating to custody have been resolved as the Court previously appointed an attorney for the child, and the parties entered into a comprehensive Custody Agreement and Parenting Plan on December 16, 2021, which was So-Ordered by the Court. With regard to the request for exclusive use and occupancy of the marital apartment, the Wife does not oppose the request, agrees the parties cannot co-exist in the same home, and has relocated to another apartment. Thus, the Husband is granted exclusive use and occupancy of the marital apartment during the pendency of this matter.

Background

The parties were married on September 7, 2009 in New York. They separated in September 2021 which is also when this action was commenced. There is one child of the marriage, a son born in February 2011. The marital residence, where the Husband resides during the pendency of this action, is an apartment located in the West Village in Manhattan.

The Wife, who is 54, is a physician and is part of a cardiology practice. The Husband, who is 75 years old and in good health, is retired and unemployed. Previously, the Husband ran his own investment office. It appears from the submissions and Statements of Net Worth that the only significant marital asset is the marital residence, for which the Wife has been paying the carrying charges of approximately $8,948 per month.

The parties’ Custody Agreement and Parenting Plan provides that the parties shall share joint legal custody of their son pursuant to a detailed protocol and shall also share equal parenting time with their son, including during regular times and during holiday and vacation periods.

Temporary Maintenance

Pursuant to DRL § 236(B)(5-a), courts must arrive at a presumptive award of temporary maintenance by first determining the parties’ incomes, based on the parties’ most recently filed tax returns and in accordance with the definition of income set forth in the Child Support Standards Act (see DRL § 240[1-b][b][5]). After this determination is made, the court must then perform a series of calculations using those figures. The final number that is derived through this process is the presumptive award. Deviation from the presumptive award, whereby a court orders the higher-income spouse to pay the lower-income spouse a greater or lesser amount, must be done according to a series of factors.

DRL § 236(B)(5-a) calls for the parties’ income to be determined by their most recent tax returns. According to defendant's 2020 tax return she earned an adjusted gross income of $595,377. The statute also requires income to include “income or compensation voluntarily deferred” for pensions and retirement benefits. In 2020, the Wife deferred income of $25,268.37 for her 401(k) account. The combined income including the deferred income is $620,645.37. Further, the Wife had additional perquisites the Court in its discretion now considers, including a Medical Flex Spending Account and Transportation Account. These perquisites bring her total income to $632,008.40, which is the figure the Court will utilize. Subtracted from that amount are the FICA and New York City taxes paid — totaling $45,786.34 - which result in an adjusted income of $586,222.06.

The Husband, while retired, lists investment income of $10,000 in his own support calculations and the Court will use that figure for his income. Although there is no additional income listed for the Husband the Court questions as part of its overall analysis why the Husband has no retirement income of any kind. The Court is concerned that the Husband has appeared to make no plan for his retirement including applying for social security, which, if he has not done, he should do immediately. Similarly, there is no indication that the Husband has enrolled in Medicare, which, given his age, he should do.

In accordance with DRL § 236B(5-a)(c)(1), the presumptive award of temporary maintenance is calculated as follows:

1st Calculation: ($203,000 x .20) = $40,600

- ($10,000 x .25) = $2,500

Result = $38,100 (or $3,175 a month)

2nd Calculation: $203,000 + $10,000 = $213,000

x .40 = $85,200

- $10,000

Result = $75,200 (or $6,266 a month)

Plaintiff, as the payee spouse, is presumptively entitled to the lower of the figures calculated in subsections (a) and (b) (DRL § 236B[5-a][c][1][d]), or $3,175 a month.

The Court next considers whether upon review of the statutory factors awarding the guideline temporary maintenance would be unjust and inappropriate (see DRL § 236 (B) (5-a)(h)(1)). The parties were married for 12 years. The Wife is 54 years old and the Husband is 75 years old. Neither reports health issues. The parties’ son is 11 and attends school full time. The Husband may not have the earning capacity he once had but he should be receiving retirement or social security income. The Husband has no need to incur education or training expenses. Nor does he need spousal support so that he can reenter the workforce.

Although the Husband stresses the affluent lifestyle of the parties during the marriage, the Wife's income must now support two households as the Husband has exclusive use of the marital residence and the conflict between the parties prevents them from residing together. Specifically, as stated in the Wife's Statement of Net Worth, the rent on her own apartment is $8,500 per month. Further, the Wife notes that during the marriage they had been living above their means.

Upon consideration of the above stated factors, the Court will consider income above the statutory cap up to a total income of $300,000. This adjusted cap takes into consideration the two households the Wife must now cover. Courts do not have to follow the statutory formula when they deviate from the statutory cap (see Warshaw v. Warshaw, 173 AD3d 582, 583-584 1st Dept. 2019 [“calculation of maintenance award over the income cap is not based on an ‘automatic formula but is based upon a set factors enunciated in DRL 236 (b) (5-a) (h) (1)]).

Utilizing the adjusted income cap and the formula results in above-cap maintenance of $19,400, which results in a total adjusted cap maintenance of $57,500 or $4,791.67 per month. However, upon consideration of the various factors, the Court orders a total interim maintenance award of $5,000 per month.

The Court notes, however, that such award of maintenance is not permanent. In fact, based on the length of the marriage — 12 years — the advisory schedule provides that the duration of maintenance would be between 22 months and 43 months. Based on the factors outlined above, it is the opinion of this Court that an award of maintenance in this matter should be for no more than 36 months total, including both temporary and post-divorce maintenance (see DRL § 236B[5-a][f]).

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. Here, after the award of maintenance, the Husband's income for child support purposes will be $70,000 and the Wife's income is $526,222.06. The combined parental income is $596,222.06. The Husband's pro rata share is 12% and the Wife's pro rata share is 88%.

The presumptive amount of basic child support obtained by calculating the statutory percentage for 1 child (17%) of the combined parental income cap of $163,000 results in child support of $27,710 per year. The Wife's pro rata share of that sum is $24,456.68 or $2,038.06 per month.

In determining a temporary child support award, the Court also considers the assets of the parties and that the only major asset is the marital residence. The Court also considers the “add on” costs that the parties have incurred for their son, including health insurance, extracurricular and modest educational costs. Notably, the Wife has been responsible for and continues to pay for the family's health insurance.

Upon consideration of the factors outlined above, including the marital standard of living, the Court determines it is inappropriate to award the guideline support only up to the cap. However, because the parties will each have the child 50% of the time, the Court declines to award child support based on all of the Wife's income but instead will utilize an adjusted cap of $300,000. This additional $137,000 of income above the cap results in additional guideline child support of $23,290 per year; the Wife's share of that is $20,555.62 or $1,712.97 per month. This would result in a total guideline support obligation for the Wife on a combined income cap of $300,000 to be $3,751.02 per month.

After consideration of the factors, and the guideline support amount using a $300,000 cap, the Court finds that an award of temporary child support in the sum of $3,948 per month is just and appropriate.

Further, the Wife shall maintain the health insurance coverage currently in place for the Husband and child and shall pay the cost of the Husband's health insurance until he is enrolled in Medicare. The Husband should immediately enroll in Medicare. The Wife will also be responsible for 88% of unreimbursed medical expenses for the child, and the Husband responsible for 12% of such costs. In addition, the Wife shall pay 88% and the Husband 12% of the child's extracurricular, educational, and summer expenses as mutually agreed to in advance pursuant to the requirements of the parties’ Custody Agreement. In this regard, the Court notes that only modest amounts are listed in the parties’ Statements of Net Worth for extracurricular, educational, and related expenses. There do not appear to be any child care expenses given the age of the child and that the Husband does not work, and is not seeking to work.

Payment of Interim Maintenance and Child Support

As noted, the Wife has been paying the mortgage and maintenance and all carrying charges for the marital residence for a total of $8,948 per month. The total interim support being ordered - $5,000 in interim maintenance and $3,948 in interim child support — equals the voluntary support the Wife has been paying. While these support awards are retroactive to the date of the application, there are no arrears since the Wife is credited with these voluntary payments.

Rather than order direct payment of the support awards from the Wife to the Husband, the Court directs the Wife to continue paying all carrying charges on the marital residence. The Wife's pro rata share of the Add-on expenses may also be paid directly unless otherwise arranged by the parties.

Given the reality of the parties’ finances, the parties and counsel should discuss an immediate sale of the marital residence in order to reduce everyone's overhead/monthly obligations so that the parties can live in two homes in accordance with their means.

Interim 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 further creates a rebuttable presumption that counsel fees shall be awarded to the non-monied spouse. This presumption reflects the strong policy concern of ensuring “that marital litigation is shaped not by the power of the bankroll but by the power of the evidence” (Charpie v Charpie, 271 AD2d 169, 170 [1st Dept 2000]). It is therefore especially important to award counsel fees for the non-monied spouse when there is a substantial discrepancy between the incomes of the parties (id. at 171). However, in addition to looking at the incomes of the parties, “in exercising its discretionary power to award counsel fees, a court should review ․ all the other circumstances of the case, which may include the relative merit of the parties’ positions” (DeCabrera v Cabrera-Rosete, 70 NY2d 879, 881 [1987]).

In this case, there is no question that the Wife is the monied spouse and has a successful cardiology practice, and that the Husband has no income and has not worked for a number of years. There is no indication or even a suggestion, however, that Wife prolonged the litigation or attempted to use her income to drive the litigation. The Court also considers the tactics the Husband engaged in at the inception of the case rather than amicably separate from the Wife, including her arrest in front of the child, the limitation and supervision of her time with the parties’ son, and denial of access to her belongings. The Court does recognize the efforts made by the parties to move past that time and commends their ability to resolve custody. Further, the Court also considers the circumstances of this case and the merits of the parties’ positions. In this regard, the Husband's position on finances appears to ignore the financial realities of this family, the challenge of maintaining two homes, and the legal guidelines limiting spousal maintenance.

Thus, having considered the progress made by the parties in spite of the acrimony, and the vast difference in the parties’ incomes, the Wife is directed to pay $10,000 as and for the Husband's interim counsel fees which are subject to reallocation at trial.

Accordingly, it is hereby

ORDERED that the Court grants an award of interim maintenance in the amount of $5,000 retroactive to October 13, 2021; and it is further

ORDERED that the Court grants an award of interim child support in the amount of $3,948 retroactive to October 13, 2021; and it is further

ORDERED that in order to satisfy her interim maintenance and support obligations the Wife shall continue to cover all carrying charges for the marital residence where the Husband resides during the pendency of the action. The Wife shall receive credit for all payments she has made to cover the carrying charges on the marital residence and there are no arrears; and it is further

ORDERED that on consent the Husband is granted exclusive use and occupancy of the marital residence during the pendency of this action; and it is further

ORDERED that the Wife shall maintain the health insurance in place for the Husband and child. However, the Husband shall immediately apply to collect social security benefits and enroll in Medicare; and it is further

ORDERED that the Wife shall pay 88% and the Husband 12% of the child's unreimbursed medical costs. The Husband shall pay 100% of his own unreimbursed medical expenses; and it is further

ORDERED that the Wife shall pay 88% and the Husband 12% of the child's education, extracurricular, and summer expenses as agreed to by the parties in accordance with their Custody Agreement; and it is further

ORDERED that the Husband's motion for interim counsel fees is granted to the extent that the Wife is directed to pay $10,000 in interim counsel fees directly to the Husband's counsel on or before April 15, 2022. Such fee award is subject to reallocation at trial; 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.