J.R., Plaintiff, v. M.G.H., Defendant. (2026)

I. Statement Pursuant to CPLR § 2219 [a]

This action was recently assigned to the undersigned pursuant to the Administrative Order of the Chief Administrative Judge of the Courts dated June 26, 2026 [AO/150/2026]. Having reviewed the submissions in their entirety, the Court has declined oral argument and determines the applications upon submission.

Recitation, as required by CPLR § 2219 [a], of the papers considered in the review of Plaintiff's emergency order to show cause and Defendant's cross motion, all filed upon the New York State Courts Electronic Filing System [NYSCEF]: Plaintiff's Emergency Order to Show Cause, signed by a Justice of this Court, containing interim relief; the Attorney Certification pursuant to Part 130-1.1 of the Rules of the Chief Administrator; the Affirmation of Emergency and Good Faith of Plaintiff's counsel, submitted pursuant to 22 NYCRR 202.7; the Affirmation of Plaintiff, with Exhibits A through Y annexed; and the Affirmation in Support of Plaintiff's counsel, together with the annexed word count certifications (NY St Cts Filing [NYSCEF] Doc Nos. 279, 248, 249, 250 and 251). In opposition and in support of her cross motion, Defendant submitted her Notice of Cross Motion and Opposition to Plaintiff's Order to Show Cause; the Affirmation of Defendant, with Exhibits 1 through 19 annexed; and the Attorney's Affirmation in Opposition and in Support of Defendant's counsel (NY St Cts Filing [NYSCEF] Doc Nos. 281, 282 and 283). In reply and in opposition to the cross motion, Plaintiff submitted the Affirmation in Opposition and Reply of Plaintiff, with Exhibits A through J annexed, and the Affirmation in Opposition and Reply of Plaintiff's counsel, together with the annexed word count certifications (NY St Cts Filing [NYSCEF] Doc Nos. 304 and 305).

Upon the foregoing papers, and for the reasons that follow, Plaintiff's order to show cause is granted in part and denied in part, and Defendant's cross motion is granted in part and denied in part.

II. Findings of Fact

A. The Parties, the Children, and the Early Procedural History

Plaintiff commenced this action for divorce and ancillary relief in November 2022. The parties are the parents of five children. Two are emancipated: Z., age twenty-four, who holds a master's degree and resides with Plaintiff, and O., age twenty-two, who attends college and divides her time between the parties' residences. Three remain unemancipated: W., age twenty, who attends a private university; S., age ten; and B., age eight. Plaintiff affirms that W. resides with him on a full-time basis and that S. and B. divide their time equally between the parties' homes pursuant to the parties' custody agreement. O. attained the age of twenty-one in October 2024.

Plaintiff filed Motion Sequence No. 001 on March 29, 2023. Defendant filed an emergency order to show cause, Motion Sequence No. 002, later that same day, seeking exclusive occupancy of the marital residence and sole custody of the children. Defendant obtained exclusive occupancy; she did not obtain sole custody. Plaintiff characterizes the allegations underlying that application, which included assertions of alcohol abuse and domestic violence, as fabricated, and represents that six months of alcohol monitoring disproved the allegation of acute alcoholism. Defendant maintains that her allegations were supported by photographs and text messages placed before the Court, and she directs the Court to the transcript of the appearance of April 3, 2023. The Court records these competing characterizations without resolving them, as their resolution is neither necessary to nor possible upon the present record.

B. The 2023 Interim Order

By Decision and Order dated September 1, 2023, the Court determined Motion Sequence Nos. 001 and 002 [the 2023 Interim Order]. Plaintiff's income was determined to be $1,386,201, a figure derived from his partnership distributions rather than the $1,791,150 reported upon his 2022 filed return, and income of $86,000 was imputed to Defendant based upon employment she had accepted and thereafter left. The Court elevated the statutory income cap applicable to the support calculation to $400,000, which Plaintiff describes as more than double the then-applicable statutory figure.

The 2023 Interim Order directed Plaintiff to pay interim maintenance of $4,875 per month and interim basic child support of $9,319 per month. It further directed Plaintiff to pay one hundred percent of the children's school tuition and fees, encompassing college tuition for the two eldest children and private school tuition for another child; one hundred percent of the life insurance and health insurance premiums; and ninety percent of the statutory mandatory add-on expenses, with Defendant responsible for the remaining ten percent. Defendant was awarded exclusive occupancy of the marital investment property [the Subject Property], and was directed to contribute $3,000 per month toward the mortgage, with Plaintiff responsible for the balance. The Court characterized Defendant's contribution as one made to preserve an important marital asset, subject to ultimate allocation or credit, and the parties subsequently agreed by written stipulation that each party's mortgage contributions would be returned from the proceeds of sale.

Following O.'s emancipation, Plaintiff unilaterally adjusted the monthly basic child support payment from $9,319 for four children to $8,700 for three children, which he represents was done in accordance with the thresholds and formulas set forth in the 2023 Interim Order. Defendant has not challenged that adjustment upon this record.

The monthly obligation associated with the Subject Property has increased since 2023 by $2,559, attributable to increases in insurance and property tax escrow, and now totals $11,821 per month. Defendant's contribution has remained fixed at $3,000, leaving Plaintiff responsible for $8,821 per month, which represents approximately seventy-five percent of the monthly obligation. At the time the 2023 Interim Order issued, Plaintiff's share was $6,262.

Plaintiff sets forth his aggregate court-directed obligations as follows: maintenance of $4,875 per month, basic child support of $8,700 per month, and mortgage of $8,821 per month, totaling $22,396 paid monthly for Defendant's direct benefit; W.'s college tuition and fees of approximately $5,052 per month, based upon an annual figure of $60,620 for the 2025 through 2026 academic year; health insurance of $3,458 per month; life insurance of $1,231.73 per month; and ninety percent of mandatory add-on expenses. The aggregate exceeds $32,137 per month and $385,644 per year, exclusive of Plaintiff's own housing and living expenses. Plaintiff affirms that he has remained in compliance with the 2023 Interim Order at all times, and Defendant does not contend otherwise except with respect to a claimed childcare arrear addressed below.

C. Plaintiff's Prior Applications and the Appellate Determination

Plaintiff moved by Motion Sequence No. 004, filed October 31, 2023, for leave to renew and reargue the 2023 Interim Order pursuant to CPLR § 2221, contending that basic child support had been calculated for four children rather than three and that he had been improperly directed to pay the majority of the mortgage upon a residence occupied exclusively by Defendant. By Order dated March 27, 2024, a prior Justice of this Court denied that application, observing that allowing the child W. to choose her own residential schedule was within the parties' rights but that the Court would not adjust child support based upon choices the child might make from time to time as to where she wished to reside.

Plaintiff perfected an appeal from that determination, his brief having been submitted on December 8, 2025. By Decision and Order dated March 24, 2026, the Appellate Division, First Department affirmed (the decision of the Appellate Division, First Department in this action, dated March 24, 2026). The Court quoted the pertinent language:

"Generally, an aggrieved party's remedy for any perceived inequities in a pendente lite award is a speedy trial. Plaintiff failed to establish that modification of the pendente lite child support award is warranted here. Plaintiff, who is the higher earner, does not contend that he is unable to pay the court-ordered support, nor does he cite any other exigent circumstances warranting modification of the pendente lite order."

The appellate court further noted that the only court-ordered parental access schedule in the record directed that the parties share parenting time equally as to the two youngest children, that no custody order established that Plaintiff had custody of the elder child, and that Plaintiff accordingly remained the non-custodial parent for purposes of the child support calculation (cf. Rubin v Della Salla, 107 AD3d 60 [1st Dept 2013]).

By Order of Reference dated April 16, 2026, this matter was referred for trial upon all financial issues, including support. The parties agree that the reference has not yet been perfected. Defendant's counsel affirms that the court's referral clerk transmitted the referral information sheet on June 2, June 15, and June 29, 2026, and that Plaintiff has neither submitted the sheet nor communicated with her office concerning it, although either party may submit a separate version should the parties be unable to agree upon a joint submission. Plaintiff's counsel affirms that her office repeatedly sought Defendant's counsel's agreement to the information sheet without response, and further affirms that the reference cannot proceed until Motion Sequence No. 005, which concerns Defendant's discovery compliance and Defendant's request for a protective order, is resolved. Motion Sequence No. 005 remains pending and is not before the Court upon this application.

D. The Reduction in Plaintiff's Income

Plaintiff affirms that effective May 1, 2026, his annualized compensation from his law firm was reduced from $1,386,201 to $895,612 upon his permanent de-equitization from the partnership, a reduction of approximately thirty-six percent. He annexes the compensation letter from the firm's Global Chief Executive Officer dated May 1, 2026, the firm's points allocation for the 2026 through 2027 year, and correspondence and documentation concerning the repayment of his capital and capital loan note.

The reduction is corroborated by the sworn Affirmation of the firm's New York Managing Partner, who attests that in June 2025 the firm merged with a New York headquartered firm, and that as a result Plaintiff's position as the firm's sole cross-border Corporate partner in a small office, a role for which he was qualified only under the laws of a foreign jurisdiction, was rendered redundant. Plaintiff's employment is secured only through December 31, 2026.

Plaintiff affirms that he did not request, cause, or otherwise voluntarily undertake the reduction, and he emphasizes the implausibility of a partner in a firm of more than six hundred partners and three thousand attorneys, operating in fifteen countries with audited global revenue exceeding one billion dollars, engineering a contrived reduction in his own compensation. He affirms that his counsel transmitted the income reduction letter to Defendant's counsel on April 30, 2026, that he produced all available supporting documentation upon request, and that he offered to sit for a supplemental deposition under oath concerning the reduction, an offer Defendant did not accept.

As to mitigation, Plaintiff affirms that he has engaged a professional legal recruiter, has attended preliminary discussions with several New York firms, has enrolled in a bar examination preparation course, and registered to sit for the New York Bar Examination. He explains that registration for the July examination is available only in the preceding March, that foreign educated applicants must first obtain approval of evaluation documents, and that he submitted those documents in September 2025 in order to register in March 2026 for the July 2026 examination. He acknowledges that even upon admission he will be, in practical effect, a newly admitted New York attorney in 2027. Plaintiff expressly disclaims any request addressed to circumstances that may obtain after December 31, 2026.

Plaintiff affirms that at an effective tax rate of forty-six percent his net income from gross compensation of $895,612 is approximately $483,600, against annual court-directed obligations exceeding $385,644, leaving less than $100,000 for his own household. He affirms credit card debt exceeding $34,200, a single checking account holding $34,759.88, and a single foreign account holding the equivalent of approximately $123,000, representing proceeds of the March 2025 sale of a foreign marital property upon which capital gains tax remains payable in two jurisdictions.

E. The Sale Stipulation and the Marketing of the Marital Property

At a court conference on September 16, 2025, Defendant's counsel raised the possibility of a stipulation providing for the sale of the Subject Property. Following negotiation, the Stipulation and Order Regarding the Sale of Marital Property was fully executed on December 18, 2025 [the Sale Stipulation], and uploaded to NYSCEF (NY St Cts Filing [NYSCEF] Doc No. 192 Paragraph 1) identifies the parties' mutually agreed broker. Paragraph 2 provides that any replacement broker must likewise be mutually agreed upon. Paragraph 5 requires that both parties be included upon all written communications with the broker, and that oral communications be promptly summarized in writing to both. Paragraph 8 provides that after sixty days of listing, and after each successive sixty-day period, the parties shall follow the broker's listing price recommendations. Paragraph 11 provides that each party's mortgage contributions shall be returned from the proceeds of sale.

The property was listed on February 1, 2026. Professional photography was completed on March 21, 2026. The broker recommended price reductions upon the sixty-day reviews of April 1 and May 31, 2026, and again on June 22, 2026. Plaintiff affirms that Defendant refused to consent to those reductions and further alleges that Defendant failed to follow the broker's recommendations concerning decluttering, cleaning, repairs, and staging; failed to furnish keys; delayed photography; withheld showings until two months after the listing date; limited and cancelled showing availability; and showed the property without the broker's knowledge. Plaintiff represents that there have been only a handful of showings and no offers.

Defendant denies obstruction. She affirms that she agreed to Plaintiff's chosen broker to facilitate an easier sale, that Plaintiff and the broker used the Sale Stipulation as a weapon, that Plaintiff communicated directly with the broker and repeatedly asserted breach in group text messages whenever she disagreed with an immediate price reduction, and that routine disagreements over pricing were converted into asserted legal violations rather than permitting a marketing strategy to develop. She further contends that obstruction cannot be established absent a ready, willing, and able buyer with whom she interfered, and that no such buyer has appeared. She observes that she agreed to sell in advance of any hearing upon financial matters and asks rhetorically why she would have done so were her object to remain in the residence.

Upon signing the order to show cause, the Court granted interim relief directing that, pending the hearing and determination of the application, Defendant immediately take all necessary steps to comply with the Sale Stipulation, including reducing the listing price to $2,495,000 in accordance with the broker's recommendation. Defendant confirms that the price was reduced pursuant to that order and states that the reduction has not produced a sale. Defendant characterizes the interim relief as having been granted upon an ex parte application without argument.

Plaintiff further affirms, upon reply, that the initial term of the broker's exclusive sales agreement expires on August 31, 2026, and that Defendant confirmed in writing on August 14, 2026 that she does not consent to renewing or extending the current broker's engagement beyond the expiration of the existing agreement. No replacement broker has been proposed, much less mutually agreed upon, and no mechanism for the selection and engagement of a replacement has been identified. Plaintiff contends that the foreseeable consequence is that the property will be left without an authorized broker and without continuous active marketing.

F. Defendant's Opposition and Cross Motion

Defendant opposes the application and cross-moves for an award of $13,950 in counsel fees for the costs associated with defending against what she characterizes as repetitive motion practice; for leave to select a broker of her choosing as of September 1, 2026, together with a direction that she be the sole point of contact for that broker; and for a direction that Plaintiff pay $5,140.89 in childcare arrears.

Defendant affirms that she is a social worker whose total income in 2025 was approximately $51,459, that she followed Plaintiff to two foreign countries and New York over eight years in support of his career, and that she raised the parties' five children while Plaintiff traveled and worked long hours. She recites Plaintiff's filed income for prior years and observes that his foreign earnings, inclusive of a substantial housing allowance, firm-funded family health insurance, and private school tuition for three children, considerably exceeded his present compensation.

As to the reduction, Defendant affirms that she does not believe it occurred through no fault of Plaintiff's own. Her counsel argues that the merger was announced upon the firm's website in April 2025 and completed in June 2025; that the Managing Partner's affirmation establishes that Plaintiff knew or should have known his position was at risk and refers to an inevitable impact upon Plaintiff's earnings and to discussions with executive management; that Plaintiff's recruiter communications did not commence until February 10, 2026, some ten months after the announcement; that Plaintiff could have registered for the July 2025 or February 2026 bar examinations had he acted when the merger was announced; that Plaintiff annexes no job search diary and identifies no positions for which he applied; and that the sole exhibit touching upon compensation is an uncertified letter, unaccompanied by paystubs as required by 22 NYCRR 202.16 [b]. Counsel further computes that Plaintiff received his prior compensation through April 2026 and that his total 2026 income will therefore exceed one million dollars.

Defendant also challenges Plaintiff's Statement of Net Worth, asserting that housing expenses are overstated by her mortgage contribution and a water charge; that Plaintiff pays substantial rent for his own apartment; that camp expenses are overstated; that retirement accounts have appreciated substantially since commencement while one retirement account has declined; and that Plaintiff withdrew $77,050 from a marital retirement account without disclosing the transfer in the section of the Statement of Net Worth addressed to assets transferred. Plaintiff responds that the withdrawal was disclosed to Defendant on the day it was made, January 24, 2024, that it was made in the precise amount of $77,050.65 to match a withdrawal Defendant had made from a different marital retirement account, that discovery has since revealed a further $282,010.58 withdrawn without his consent, and that the funds were applied to his legal fees.

As to counsel fees, Defendant affirms that she has paid $171,654.95 to prior counsel and $105,000 to present counsel through February 2026, that Plaintiff has contributed $40,000 toward her fees, and that the preparation of the opposition and cross motion has cost her $13,950. Counsel affirms that her rate in this matter is $700 per hour, that her current rate is $750, and that the associate attorney assisting, admitted in 2020, bills at $450 per hour, and she sets forth her professional qualifications at length. Defendant annexes her updated Statement of Net Worth, her recent bills, and her retainer agreement.

As to childcare, Defendant affirms in a single sentence that Plaintiff is in arrears in the sum of $5,140.89 for childcare from June 2024 to the present. No exhibit, invoice, ledger, or computation supporting that figure is annexed. Plaintiff responds that no such non-compliance has been raised in any prior motion sequence, that the claim relates to work-related childcare expenses submitted for reimbursement in 2024 and 2025, and that those submissions are disputed because Defendant has not substantiated that the hours claimed were in fact work-related, pointing to time entries said to coincide with medical appointments, travel, dining, and shopping. Plaintiff notes that Defendant is self-employed, keeps an irregular schedule, and maintains practice management software from which her working hours could readily be demonstrated with patient names redacted.

III. Conclusions of Law

A. The Standard Governing Modification of a Pendente Lite Award

The law governing this application is not seriously in dispute, and both parties have placed the controlling authorities before the Court. Modification of a child support order may be granted upon the standards set forth in Domestic Relations Law § 236 [B] [9] [b], which include a substantial change in circumstances. An involuntary loss of employment or a substantial reduction in compensation may constitute such a change (see Meyer v Meyer, 205 AD2d 784 [2d Dept 1994]; Isichenko v Isichenko, 161 AD3d 833 [2d Dept 2018]). Where the asserted change is a loss of employment, the movant must also establish that he or she diligently sought employment commensurate with his or her earning capacity (see Suyunov v Tarashchansky, 98 AD3d 744 [2d Dept 2012]).

An application to modify a pendente lite award, however, is governed by a more demanding standard than an ordinary application for downward modification. The remedy for a perceived inequity in a pendente lite award is ordinarily a speedy trial (see Anonymous v Anonymous, 167 AD3d 527 [1st Dept 2018]; see also, Barone v Barone, 41 AD3d 623 [2d Dept 2007]; Capozzoli v Capozzoli, 187 AD3d 834 [2d Dept 2020]). Modification is available only upon a showing of exigent circumstances (see Kohli v Tewari, 216 AD3d 512 [1st Dept 2023]; Torres v Torres, 171 AD3d 613 [1st Dept 2019]; Sumner v Sumner, 289 AD2d 129 [1st Dept 2001]). That precise standard was applied to these parties in the decision of the Appellate Division, First Department in this action, dated March 24, 2026, and it is binding here.

The rule is not absolute. Relief may be granted in the interest of justice where the ordered payments are so prohibitive as to strip the payor spouse of the income and assets necessary to meet his or her own expenses (see Frankenbach v Frankenbach, 244 AD2d 524 [2d Dept 1997]). Although Frankenbach arose in the Second Department and involved appellate review of a pendente lite award, its formulation usefully illustrates the type of extreme financial circumstance that may constitute exigency. It does not displace the First Department authority that governs this Court. Plaintiff's reliance upon Frankenbach is well placed as a statement of principle, and the question is whether that principle, applied to this record, yields the relief he seeks.

B. The Threshold Showing of a Change in Circumstances

Plaintiff has made a substantial evidentiary showing in support of his contention that his income was involuntarily reduced effective May 1, 2026. The reduction is documented by the compensation letter of the firm's Global Chief Executive Officer, by the firm's points allocation, by the capital loan note repayment correspondence, and, most significantly, by the sworn affirmation of the firm's New York Managing Partner, a third party with no apparent interest in this litigation who affirms under penalty of perjury that Plaintiff's role was rendered redundant by a merger over which Plaintiff exercised no control.

Defendant's evidentiary objections are, upon this record, largely answerable. The contention that the reduction is unproven because Plaintiff has annexed no paystub is answered by the uncontroverted representation that his firm does not issue paystubs to its partners, a fact disclosed in discovery and at deposition. The contention that no modification may be entertained absent a filed tax return proves too much: a reduction effective May 1, 2026 could not appear upon a 2025 return, and Defendant's own position would postpone any recognition of the change until October 2027 at the earliest. The contention that the letter is uncertified overlooks that it is annexed to an affirmation made under penalty of perjury and is corroborated by a separate sworn affirmation of the executive who implemented the decision. Defendant has offered no evidence to the contrary. She declined Plaintiff's repeated offer to submit to a supplemental deposition upon the very subject, which was the most direct means available to test the assertion she now disputes.

Defendant's foreseeability argument is more substantial but ultimately misdirected. That a merger was announced in April 2025 and completed in June 2025 does not establish that the compensation determination as to any individual partner was made, or communicated, at that time. the Managing Partner's affirmation places the date of June 2025 upon the merger itself. It does not place that date upon the decision concerning Plaintiff's role or his compensation. The Court declines to read into a sworn affirmation a determination it does not state. Defendant's counsel's assembly of separate paragraphs of that affirmation into a single continuous quotation was, at a minimum, imprecise, and the Court has considered the affirmation as written rather than as reconstructed.

Nor is the Court persuaded that Plaintiff failed to mitigate. He has engaged a recruiter, met with other firms, enrolled in a bar preparation course, and registered for and sat for the July 2026 examination at the earliest cycle for which his foreign credential evaluation permitted registration. Defendant's assertion that he could have registered for the July 2025 or February 2026 examinations does not engage with the unrebutted evidence concerning credential evaluation deadlines. Whether that showing would ultimately satisfy the diligence requirement articulated in Matter of Suyunov v Tarashchansky, 98 AD3d 744 [2d Dept 2012], upon a full hearing need not be determined upon this application.

Unlike the record before the Appellate Division, Plaintiff now does contend that he is unable to pay. That was the element the appellate court identified as absent (see the decision of the Appellate Division, First Department in this action, dated March 24, 2026). Its supply is not an academic matter. Where court-directed obligations of $385,644 are asserted to consume a substantial majority of a net income of approximately $483,600, the concern articulated in Frankenbach is at least presented.

The parties' submissions nonetheless raise genuinely disputed questions concerning the involuntariness of the reduction, Plaintiff's knowledge of its likelihood, and the sufficiency of his mitigation efforts. Questions of that character are ordinarily resolved upon a hearing rather than upon affirmations. The Court need not resolve them here. Even assuming, without deciding, that Plaintiff has established an involuntary reduction in compensation sufficient to satisfy the threshold substantial change inquiry, the particular relief he requests does not follow from that reduction, for the reasons that follow.

C. The Requested Reduction of Basic Child Support Does Not Follow from the Asserted Change

Establishing a change in circumstances and establishing an entitlement to the particular relief requested are separate undertakings, and it is upon the second that this branch of the application fails.

Plaintiff asks that basic child support be reduced from $8,700 per month to $6,686.34 per month. That figure is not the product of his income reduction. It is the product of a recalculation performed upon two children rather than three, together with a credit of $406.88 per month said to represent Defendant's obligation to support W.. Plaintiff states the premise plainly: because W. resides with him full time and the two younger children reside with him on an equal basis, his obligation should be calculated upon the two younger children alone, with a credit for the eldest.

That premise has been rejected upon three prior occasions. It was rejected in the 2023 Interim Order. It was rejected upon renewal and reargument by a prior Justice of this Court on March 27, 2024, who declined to adjust support according to a young adult's shifting residential preferences. It was rejected by the Appellate Division on March 24, 2026, which held that no custody order established Plaintiff's custody of the elder child, that the only court-ordered access schedule provides for equal parenting time as to the two youngest children, and that Plaintiff, as the higher earner, remains the non-custodial parent for support purposes (see the decision of the Appellate Division, First Department in this action, dated March 24, 2026; cf. Rubin v Della Salla, 107 AD3d 60 [1st Dept 2013]). Plaintiff is correct that this application rests upon facts arising after that appeal and is therefore not barred in its entirety. Those prior determinations nevertheless remain controlling upon the record presented here, because Plaintiff identifies no subsequent custody order and no other legally operative change in the parties' custodial arrangement. A changed income does not alter which parent is the non-custodial parent, nor does it alter the number of unemancipated children for whom support is owed.

Stripped of that premise, the requested reduction has no arithmetic foundation. Plaintiff's reduced income changes his proportional share of the capped basic child support obligation, but it does not produce the reduction he requests. Applying the statutory percentage of twenty-nine percent for three children to combined parental income capped at $400,000 produces an annual capped obligation of $116,000. Using Plaintiff's reduced income of $895,612 and Defendant's imputed income of $86,000, Plaintiff's proportional share is approximately 91.24 percent, producing a monthly capped obligation of approximately $8,819.76. Even if the Court employs the approximately $95,000 in income Defendant projects for 2026 in her own Statement of Net Worth, Plaintiff's proportional share is approximately 90.41 percent, producing a monthly capped obligation of approximately $8,739.63. Each of those figures exceeds the $8,700 monthly obligation presently in effect, which itself reflects Plaintiff's voluntary adjustment upon O.'s emancipation. Plaintiff's reduced income therefore does not support a downward modification to $6,686.34, or indeed any downward modification, upon the calculations and income figures presented in this record.

The Court is not unsympathetic to Plaintiff's position. It observes, however, that his own submissions demonstrate the limits of the relief a motion can supply. He does not seek modification of maintenance. He does not seek modification of the mortgage allocation. He expressly disclaims any application addressed to his circumstances after December 31, 2026. What he seeks is a recalculation whose sole operative variable is a custodial determination that is not open to him. This branch of the application must be denied, without prejudice to a future application based upon a material change in circumstances not adjudicated herein, and without prejudice to Plaintiff's presentation of the entirety of his financial circumstances upon the trial of the financial issues already ordered.

That trial remains the appropriate forum, and the Court is mindful that the appellate direction to seek a speedy trial is meaningful only if a speedy trial is in fact available. The measures the Court adopts to that end are set forth below.

D. Recall of the Order of Reference and the Trial of the Financial Issues

The history of this action demonstrates the need for a prompt trial of the remaining financial issues. It was commenced in November 2022 and has now been pending for nearly four years. Both the Appellate Division and prior orders in this action have identified a prompt trial as the appropriate means of resolving the parties' competing claims concerning pendente lite support. The record before the Court demonstrates that the remedy has become theoretical.

This action was referred for trial upon all financial issues by Order of Reference dated April 16, 2026. Nearly five months later the reference has not been perfected. The referral information sheet was transmitted to counsel on three separate occasions and has never been returned. Each party attributes that failure to the other, and the Court does not propose to adjudicate that dispute. Plaintiff further contends that the unresolved discovery issues presented in Motion Sequence No. 005 would impede the meaningful commencement of the referred trial. Whether or not that pending motion legally precludes the reference from proceeding, the reference has not been perfected and has not produced a trial date. The practical consequence is that a referral intended to accelerate the resolution of the financial issues has instead become one more matter about which the parties litigate.

An order of reference governing the forum in which unresolved issues will be tried is interlocutory and concerns the management of the remaining proceedings rather than the adjudication of their merits. Although considerations of coordinate jurisdiction and law of the case ordinarily counsel against revisiting a predecessor Justice's determination, the law of the case doctrine is discretionary and does not impose an absolute bar upon a successor Justice's reconsideration of an interlocutory direction where changed circumstances or the interests of justice warrant it (see Independent Chem. Corp. v Puthanpurayil, 165 AD3d 578 [1st Dept 2018]). Here, nearly five months have elapsed without perfection of the reference, the referral information sheet has not been submitted despite three transmissions to counsel, and the reference has not advanced the case toward trial. Under these circumstances, retaining the financial trial in this Part will more effectively implement the First Department's direction that the parties' perceived pendente lite inequities be addressed through a prompt trial. The reference is therefore vacated, the requirement that the parties submit a referral information sheet is withdrawn, and all financial issues, including support, equitable distribution, and counsel fees, shall be tried before this Court.

So that the trial is scheduled rather than merely contemplated, the Court will direct the parties and their counsel to appear for a conference at which dates certain for trial will be fixed. Counsel shall come to that conference prepared to identify the witnesses to be called, to estimate the length of trial, and to state the discovery, if any, that genuinely remains outstanding. The pendency of Motion Sequence No. 005 will not delay the setting of trial dates.

E. The Requested Recalculation of Pro Rata Shares

Plaintiff seeks recalculation of the parties' respective pro rata shares of the children's add-on expenses and tuition costs from ninety percent and ten percent to eighty-five percent and fifteen percent. This branch fails upon the arithmetic of the parties' own figures.

The 2023 Interim Order allocated add-on expenses ninety percent to Plaintiff and ten percent to Defendant upon incomes of $1,386,201 and $86,000, which correspond to proportionate shares of approximately ninety-four percent and six percent. The allocation ordered was thus already more favorable to Plaintiff than a strict proportional allocation would have been. Applying Plaintiff's reduced income of $895,612 against Defendant's imputed income of $86,000 yields combined parental income of $981,612 and proportionate shares of approximately 91.24 percent and 8.76 percent. Even employing the figure Plaintiff himself advances, that Defendant's own Statement of Net Worth projects 2026 income approaching $95,000, the proportionate shares are approximately 90.41 percent and 9.59 percent, which is substantially the allocation presently in effect.

Plaintiff's income reduction therefore does not support a reduction of his proportionate share to eighty-five percent. It supports, at most, the conclusion that the existing allocation remains at or slightly below the parties' actual proportionate shares. The record does not disclose the derivation of the eighty-five percent figure, and the Court will not adopt an allocation that its own computation from the parties' stated incomes does not support. This branch is denied, again without prejudice to a full presentation upon trial.

F. Enforcement of the Prior Orders and the December 18, 2025 Stipulation

Plaintiff seeks an order directing Defendant to comply with all prior orders and stipulations, including those concerning the sale of marital property, and specifically with paragraph 8 of the Sale Stipulation. This relief stands upon an entirely different footing from the support branches, and it is granted.

A stipulation of settlement is a binding contract between the parties and is subject to settled principles of contract interpretation (see McCoy v Feinman, 99 NY2d 295 [2002]; Xie v Chen, 247 AD3d 1242 [2d Dept 2026]). Courts should not disturb such an agreement absent a showing of good cause, such as fraud, collusion, mistake, duress, or accident, and the burden of establishing such cause rests upon the party seeking to be relieved of the agreement (see McCoy v Feinman, 99 NY2d 295 [2002]; Neosel Fam. Tr. v Neosel, 210 AD3d 788 [2d Dept 2022]).

The Sale Stipulation was negotiated over a period of months, with both parties represented by counsel, and was executed by the parties and their attorneys and submitted to be so-ordered. Defendant herself describes its terms as clear. Paragraph 8 obliges the parties to follow the broker's listing price recommendations after sixty days of listing and after each successive sixty-day period. That obligation is not conditioned upon either party's agreement with the recommendation, and it is not suspended while a party develops an alternative view of marketing strategy. Defendant's affirmation candidly acknowledges that she declined immediate price reductions in favor of what she describes as pricing decisions based upon objective market responses. However reasonable that preference might be as an original matter, it is not the bargain she struck. Insistence upon a contractual term is not weaponization of the contract. Declining to perform it is a breach.

Defendant's argument that obstruction of a sale requires a ready, willing, and able buyer misapprehends the relief sought. Plaintiff does not seek damages for a lost sale. He seeks specific compliance with an executed stipulation and order. The absence of a completed sale is the consequence Plaintiff complains of, not an element he must plead.

Upon the full record now submitted, and no longer upon the initial ex parte presentation alone, the Court finds that continuation of the interim direction requiring compliance with paragraph 8 is warranted. That the price reduction to $2,495,000 has not yet produced a purchaser does not establish that the direction was unwarranted. It establishes only that the property has not yet sold.

G. Defendant's Request to Select and Direct a Broker

Defendant cross-moves for leave to select a broker of her choosing as of September 1, 2026 and to serve as the sole point of contact for that broker, and asks in the alternative that she be given sole authority to sell or that the sale await the trial. Each formulation seeks the same thing, which is relief from the terms of the Sale Stipulation, and each must be denied.

Paragraph 2 of the Sale Stipulation provides that a replacement broker must be mutually agreed upon. Paragraph 5 requires that both parties be included upon communications with the broker. Defendant asks the Court to set aside both provisions. She has not alleged, much less established, fraud, collusion, mistake, duress, or accident, and she has therefore not carried the burden that the governing authorities place upon her (see McCoy v Feinman, 99 NY2d 295 [2002]; Neosel Fam. Tr. v Neosel, 210 AD3d 788 [2d Dept 2022]; Xie v Chen, 247 AD3d 1242 [2d Dept 2026]). Her supporting argument occupies a single paragraph and rests upon her dissatisfaction with a broker she agreed to retain and with a co-owner's insistence upon terms she signed. A stipulation is not to be rewritten because a party has come to regret it, and the relief requested would confer upon one party unilateral control over the disposition of a jointly held marital asset, which is the precise arrangement the parties negotiated against.

The alternative request, that the sale await determination at trial, would defeat the stipulation's evident purpose and is denied for the same reason.

A related question arises from Defendant's written communication of August 14, 2026, in which she declined to consent to the renewal or extension of the agreed broker's engagement beyond the expiration of the existing exclusive sales agreement. The consequence, absent intervention, is that a jointly held asset which the parties have contracted to sell may be left without an authorized broker and without active marketing, with no replacement proposed and no mechanism for selecting one identified.

The Court declines, however, to direct the execution of a renewal or extension of the broker's exclusive sales agreement upon this application. The Sale Stipulation obliges the parties to sell the property, to agree mutually upon any replacement broker, to follow the broker's pricing recommendations, and to include both parties upon communications. The parties have not identified any provision of that agreement obliging either of them to extend the broker's separate listing agreement beyond its contractual term, and the authorities that require enforcement of the bargain the parties actually made equally forbid the Court to supply a term they did not (see McCoy v Feinman, 99 NY2d 295 [2002]). The circumstance is further complicated by the fact that Defendant's refusal to consent was first placed before the Court in Plaintiff's reply papers, to which Defendant has had no opportunity to respond. The Court will therefore enforce the stipulation according to its terms, direct that the property continue to be actively marketed and that neither party obstruct the engagement of a broker mutually selected under paragraph 2, and direct that, should the existing engagement lapse before the parties agree in writing upon an extension or a replacement, the parties promptly contact the Part Clerk to schedule a conference for further directions concerning uninterrupted marketing.

H. Defendant's Request for Childcare Arrears

Defendant seeks a direction that Plaintiff pay $5,140.89 in childcare arrears accrued since June 2024. The request is supported by a single sentence in Defendant's affirmation and by no exhibit, invoice, ledger, or computation. Her counsel's affirmation offers no argument upon the point at all. Plaintiff disputes the claim in substance, contending that the underlying submissions are unsubstantiated as work-related and identifying specific entries said to be inconsistent with the activities reflected in Defendant's own financial records.

Defendant has not established prima facie, through competent documentary proof, the amount of the childcare expenses claimed, the fact of their payment, their work-related character, or their allocation between the parties under the 2023 Interim Order. A claim for arrears advanced upon an unsupported assertion and met with a substantive dispute cannot be granted. This branch is denied without prejudice to renewal upon a properly documented record or to determination upon the trial of the financial issues.

I. Defendant's Request for Counsel Fees

Defendant seeks $13,950 in counsel fees. Domestic Relations Law § 237 [a] creates a rebuttable presumption that counsel fees shall be awarded to the less monied spouse, and the purpose of such an award is to enable a party to litigate upon equal footing with the adversary (see O'Shea v O'Shea, 93 NY2d 187 [1999]; Prichep v Prichep, 52 AD3d 61 [2d Dept 2008]). In assessing an application the Court may consider the parties' respective financial circumstances, the relative merit of their positions, and whether either party has taken positions or made applications that delayed the proceedings or resulted in unnecessary litigation (see Tsung v Tso, 191 AD3d 508 [1st Dept 2021]; Gordon v Anderson, 179 AD3d 402 [1st Dept 2020]; see also Black v Black, 140 AD3d 816 [2d Dept 2016]).

Plaintiff is unquestionably the monied spouse and does not contend otherwise. Even at his reduced compensation of $895,612 he out-earns Defendant by a wide margin. Defendant has paid $276,654.95 to her attorneys, against a contribution of $40,000 from Plaintiff. Counsel's hourly rates of $700 and $450 are reasonable for practitioners of the stated experience in this market, and the qualifications set forth are substantial. Defendant has annexed her retainer agreement, her updated Statement of Net Worth, and her recent billing records, which together furnish an adequate basis upon which to determine the application without a hearing.

An award is warranted, although not in the sum requested. The support branches of Plaintiff's application have been denied in significant part because they reprised a custodial premise determined against him upon three prior occasions, and Defendant was obliged to answer that argument once again. That consideration favors an award. Countervailing considerations reduce it. Plaintiff did not prevail upon the support branches, but he did prevail upon the enforcement branches, and Defendant has not prevailed upon any branch of her cross motion. Plaintiff's application was not frivolous; it rested upon a substantial and documented evidentiary showing that his financial circumstances had materially changed, although the Court has not been required to resolve the disputed questions surrounding that showing. The fee sought includes anticipated court appearances that will not occur, the Court having taken these applications upon submission. Balancing these considerations under Domestic Relations Law § 237 [a], an interim award of $7,500 is appropriate, without prejudice to any application for additional fees or to reallocation upon the trial of the financial issues.

J. Compliance with the Word Count Certification Requirement

Plaintiff notes, and the record confirms, that Defendant's submissions upon this motion sequence do not include the certifications required by 22 NYCRR 202.8-b. The omission has not prejudiced Plaintiff and the Court has considered Defendant's papers in full. Counsel for both parties are reminded that the certification is mandatory, and compliance is directed as to all future submissions in this action.

IV. Conclusion and Decretal Paragraphs

Plaintiff has made a substantial showing of an involuntary reduction in his income. He has not established that the specific relief he requests follows from it, and the Court has not been required to resolve the disputed questions surrounding that reduction in order to say so. Defendant has established that she is the less monied spouse. She has not established any basis upon which the Court may relieve her of an agreement she negotiated, executed, and now finds inconvenient. The parties' true remedy is a prompt trial. The Court has concluded that the trial will be reached soonest if the financial issues are retained in this Part rather than referred, and the directions below are intended to bring that trial nearer rather than to defer it further.

Accordingly, and upon the foregoing, it is hereby

ORDERED that the branch of Plaintiff's order to show cause seeking a downward modification of the interim basic child support obligation established by the Decision and Order dated September 1, 2023 to the sum of $6,686.34 per month is denied, without prejudice to a future application based upon a material change in circumstances not adjudicated herein, and without prejudice to Plaintiff's presentation of his complete financial circumstances upon the trial of the financial issues; and it is further

ORDERED that the branch of Plaintiff's order to show cause seeking recalculation of the parties' respective pro rata shares of the children's add-on expenses and tuition costs to eighty-five percent to Plaintiff and fifteen percent to Defendant is denied, without prejudice to determination upon the trial of the financial issues, and the allocation of ninety percent to Plaintiff and ten percent to Defendant established by the Decision and Order dated September 1, 2023 shall remain in full force and effect; and it is further

ORDERED that the branch of Plaintiff's order to show cause seeking an order directing Defendant to comply with all prior orders and stipulations, including those concerning the sale of the marital property, is granted; and it is further

ORDERED that the branch of Plaintiff's order to show cause seeking an order directing Defendant to comply with paragraph 8 of the Stipulation and Order Regarding the Sale of Marital Property dated December 18, 2025, and to reduce the listing price in accordance with the broker's recommendations, is granted, and the interim relief granted upon the signing of the order to show cause is continued; and it is further

ORDERED that Defendant shall comply with each and every term of the Stipulation and Order Regarding the Sale of Marital Property dated December 18, 2025, and shall, upon each sixty-day review contemplated by paragraph 8 thereof, consent to and effectuate the listing price recommended by the parties' agreed broker within five business days of the recommendation; and it is further

ORDERED that the parties shall continue actively to market the Subject Property in accordance with the Stipulation and Order Regarding the Sale of Marital Property dated December 18, 2025; that neither party shall obstruct the engagement of a broker mutually selected pursuant to paragraph 2 thereof; and that, if the existing broker's engagement expires before the parties mutually agree in writing upon an extension or a replacement, the parties shall promptly contact the Part Clerk to schedule a conference for further directions concerning the uninterrupted marketing of the property; and it is further

ORDERED that the branch of Defendant's cross motion seeking leave to select a broker of her choosing and to serve as the sole point of contact for that broker is denied, and the alternative relief seeking sole authority to sell the property or the deferral of the sale until trial is likewise denied; and it is further

ORDERED that the branch of Defendant's cross motion seeking a direction that Plaintiff pay the sum of $5,140.89 in childcare arrears is denied without prejudice to renewal upon a properly documented record or to determination upon the trial of the financial issues; and it is further

ORDERED that the branch of Defendant's cross motion seeking an award of counsel fees in the sum of $13,950 is granted to the extent that Plaintiff shall pay to the attorneys for Defendant the sum of $7,500, payable within thirty days of service of a copy of this Decision and Order with notice of entry, and is otherwise denied; and it is further

ORDERED that, upon the Court's own motion, based upon the circumstances arising since issuance of the Order of Reference dated April 16, 2026, and in the interest of securing a prompt trial of the remaining financial issues, that Order of Reference is hereby vacated and the direction that the parties submit a referral information sheet is withdrawn; and it is further

ORDERED that all financial issues in this action, including support, equitable distribution, and counsel fees, shall be tried before this Court in Part 44; and it is further

ORDERED that the parties and their counsel shall appear for a conference, to be scheduled by the Part Clerk within thirty days of the date of this Decision and Order, at which dates certain for the trial of the financial issues shall be fixed, and counsel shall appear prepared to identify their witnesses, to estimate the length of trial, and to state what discovery, if any, genuinely remains outstanding; and it is further

ORDERED that all future submissions in this action by either party shall include the certification required by 22 NYCRR 202.8-b; and it is further

ORDERED that all relief requested and not expressly granted herein is denied; and it is further

ORDERED that Plaintiff shall serve a copy of this Decision and Order with notice of entry upon Defendant by NYSCEF within ten days of the date hereof.

This constitutes the Decision and Order of the Court.

Dated: September 2, 2026

New York, New York

ENTER:

HON. RONALD CASTORINA, JR., J.S.C.

Ronald Castorina, Jr., J.